FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
Glaser, with whom Law Office of Lenore Glaser was on brief,
M. Meconiates, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, were on
brief, for appellee.
Kenyatta, Stahl, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Padilla-Galarza appeals his convictions for possession of a
controlled substance with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1), and for being a prohibited
person in possession of ammunition, in violation of 18 U.S.C.
§ 922(g)(1). He contends that both convictions must be
reversed on the ground that the evidence of his knowing
possession of the contraband was insufficient. He argues in
the alternative that the convictions must at least be vacated
due to various alleged errors in the proceedings below --
principally that he was "forced" to represent
himself pro se because, in his view, the District Court did
not grant a sufficiently long continuance to enable his
preferred court-appointed attorney to prepare for trial as
full counsel. He also challenges two aspects of his sentence:
a condition of his supervised release that he be evaluated
for participation in a mental health treatment program and a
child pornography forfeiture order. We affirm his convictions
and sentence, subject to a remand for the limited purpose of
striking the child pornography forfeiture order.
January 9, 2015, federal law enforcement agents executed a
search warrant at a house in Toa Baja, Puerto Rico, which the
government alleges was Padilla's residence. Padilla,
together with two siblings who lived in the continental
United States, had inherited the house from their deceased
parents. During the search, the agents found ammunition and
1, 293.10 grams of marijuana. A grand jury thereafter
indicted Padilla, who has a prior felony conviction, with one
count of being a prohibited person in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1), and
one count of possession of a controlled substance with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1).
pre-trial proceedings, two court-appointed attorneys
represented Padilla. However, on August 4, 2015 -- one week
before trial was scheduled to begin on August 11 -- Padilla
moved to dismiss both attorneys. After a hearing on that
motion on August 5, the District Court denied it. But,
because Padilla indicated in his motion and at the hearing
that he would be forced to represent himself pro se if his
two attorneys were not dismissed, the District Court held
another hearing on August 7 to ensure that any waiver of
Padilla's constitutional right to counsel would be
knowing, intelligent, and voluntary. At this second hearing,
the District Court offered to appoint a different attorney,
whom Padilla preferred, as either full counsel or standby
counsel, and the District Court ordered a fifteen-day
continuance to enable the attorney to prepare. Apparently
because he thought a continuance of that length would not
give that attorney sufficient time to prepare for trial as
full counsel, Padilla decided to proceed pro se with the
assistance of that attorney as standby counsel.
was tried on August 26 and 27 of 2015. At the close of the
government's evidence, Padilla moved for acquittal on
both counts based on the insufficiency of the evidence
against him. Padilla's standby counsel presented oral
argument for the motion, which the District Court denied.
Thereafter, Padilla did not testify or otherwise present
evidence on his behalf. The jury then returned a guilty
verdict on both counts. Afterwards, Padilla renewed his
motion for acquittal, but the District Court denied it.
District Court then sentenced Padilla to forty-six months of
imprisonment and three years of supervised release. The
District Court specified that, among the conditions of his
supervised release, Padilla must "participate in an
approved mental health treatment program for evaluation
and/or treatment services determination." The District
Court's written judgment also stated that Padilla must
forfeit "[a]ny and all materials or property used or
intended to be used in the possession, receipt, distribution
or transportation of child pornography, pursuant to Title 18,
USC Section 2253."
then filed this appeal. This Court appointed counsel to
represent him in these proceedings.
first contends that his convictions must be reversed because
the government's evidence was insufficient to convict him
of either possession of a controlled substance with intent to
distribute under § 841(a)(1) or being a prohibited
person in possession of ammunition under § 922(g)(1).
Because Padilla preserved this argument in his motion for
acquittal, we review his challenge de novo, "viewing the
evidence in the light most favorable to the government and
taking all inferences in its favor." United States
v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008).
challenge pertains solely to the knowledge requirement for
both crimes. To sustain a conviction under either statute,
the government must prove, among other things, that the
defendant knowingly possessed the contraband.
United States v. Guzmán-Montañez, 756
F.3d 1, 8 (1st Cir. 2014) (§ 922(g)(1)); United
States v. García-Carrasquillo, 483 F.3d 124, 130
(1st Cir. 2007) (§ 841(a)(1)). Padilla acknowledges that
marijuana and ammunition were found inside a bedroom in the
house, but he contends that, notwithstanding this fact, the
government failed to prove beyond a reasonable doubt that he
knowingly possessed the ammunition and the
for the purposes of both statutes under which Padilla was
convicted, knowing possession of the contraband may be
inferred from evidence of actual possession (meaning
"immediate, hands-on physical possession")
or constructive possession.
Guzmán-Montañez, 756 F.3d at 8 (§
922(g)(1)); accord García-Carrasquillo, 483
F.3d at 130 (§ 841(a)(1)). And, as pertinent here,
"[i]n order to show constructive possession, the
government must prove that the defendant 'had dominion
and control over the area where the contraband was
found.'" United States v. Wight, 968 F.2d
1393, 1397 (1st Cir. 1992) (quoting United States v.
Barnes, 890 F.2d 545, 549 (1st Cir. 1989)) (discussing
constructive possession in the context of both drug offenses
and § 922(g)(1)). Thus, the record need show only that
the evidence was sufficient to permit a reasonable jury to
find beyond a reasonable doubt that Padilla exercised
dominion and control "over the area" in which the
contraband was found, as a jury may infer from such a finding
of constructive possession that he knowingly
possessed the contraband if circumstances would make it
reasonable for a jury to do so. Id.
evidence in this case more than sufficed to permit a jury to
reasonably find as much. To begin with, the jury learned that
Padilla had admitted in an interview with federal agents that
he was an owner of the house in which the ammunition and
marijuana were found, that he had made payments on the
mortgage for the house, and that he had installed four
surveillance cameras at the house in order to deter break-ins
and vandalism. Moreover, a federal agent testified that she
conducted drive-by surveillance of the house ten days before
the search of the house, and that Padilla was standing
outside the house as she drove by it.
jury further learned that Padilla admitted in the interview
with federal agents that he frequented the house during the
daytime and that he sometimes slept at the house overnight.
In addition, the government's evidence sufficed to show
that the bedroom in which the ammunition and the marijuana
were found was in a more organized and clean condition than
the rest of the house, from which a jury could have
reasonably inferred that Padilla slept in that bedroom when
he stayed overnight at the house. See United States v.
Matthews, 498 F.3d 25, 31 (1st Cir. 2007) (stating that
a jury is "entitled to rely on plausible
inferences" from circumstantial evidence). And, as
Padilla concedes, the contraband was found in that bedroom
together with personal items that indisputably belonged to
Padilla, including: photo identification cards; receipts in
his name from the previous year; old correspondence addressed
to him; and mannequins, decorations, and toy guns that
Padilla admitted were his for the purpose of making movies.
face of this evidence, Padilla nevertheless contends that the
evidence was insufficient to prove that he knowingly
possessed the contraband. He points out that there was no
evidence of his fingerprints on the contraband and that the
house was "unkempt, disorganized and full of
items." But neither of those facts suffices to show that
the jury was compelled to find in his favor regarding whether
he knew the contraband was in the bedroom, given the
government's ample evidence of his dominion and control
over that area. In particular, Padilla acknowledges that the
evidence showed that the bedroom was relatively "more
organized" than the rest of the house, and that the
contraband was found in that bedroom "with items
belonging to [Padilla]." A jury could reasonably infer
from those facts that Padilla exercised dominion and control
over the area where the contraband was found. See United
States v. Smith, 680 F.2d 255, 259 (1st Cir. 1982)
("[I]f the evidence can be construed in various
reasonable alternatives, the jury is entitled to freely
choose from among them."). And the jury was then
entitled to infer knowledge of the contraband from that
evidence of constructive possession, given that such an
inference was reasonable under the circumstances, even if
there was no evidence of actual possession, such as the type
of fingerprint evidence that Padilla demands.
also contends that the evidence at trial was too slight
because it did not indicate when he inherited his ownership
share in the house, when he began "frequenting" the
house, or when he stored his personal items in the bedroom
inside the house. But, there is no dispute that those events
occurred prior to when the contraband was found. And given,
for example, the relatively recent dates of the receipts, the
comparatively organized and clean condition of the bedroom,
and the testimony that Padilla was seen outside the house ten
days before the search, a jury could have reasonably found
that his dominion and control over the area where the
contraband was found continued up to the time of the search.
therefore conclude that the government's evidence
sufficed to prove that Padilla constructively possessed the
ammunition and the marijuana found in the bedroom of the
house, from which the jury was entitled to infer that Padilla
knowingly possessed the contraband, as that inference was
reasonable in these circumstances. We thus affirm the denial
of his motion for acquittal.
next contends in the alternative that, even if the evidence
against him was sufficient, both his convictions must be
vacated due to various ...