* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-31122

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MICKEY MARCEL PATT

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:05-CR-60047-1

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Mickey Marcel Patt appeals his jury trial conviction for being a felon in

possession of a firearm. Patt was sentenced to a term of imprisonment of 115

months.

Patt argues that the Government failed to prove that he had knowledge

of the firearms concealed in the console of his vehicle because the Government’s

own evidence rebutted its theory ofthe case. He contends that the Government’s

evidence reflected that he was in prison at the time the customized console was

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-31122

2

placed in the car and, thus, the testimony that he ordered the work done was

incredible. He further contends that his passenger, Roger Fontenette, who had

drugs on his person at the time of the stop, was the likely owner of the firearms.

Patt also asserts that his counsel was ineffective because he was acting under

a conflict of interest due to his prior representation of Fontenette and counsel

failed to argue that the guns belonged to his former client. 

Where, as here, a defendant makes a timely motion for acquittal, this

court will uphold a jury’s verdict if a reasonable trier of fact could conclude from

the evidence that the elements of the offense were established beyond a

reasonable doubt. United States v. Delgado, 256 F.3d 264, 273 (5th Cir. 2001).

The evidence, both direct and circumstantial, is viewed in the light most

favorable to the jury’s verdict; all credibility determinations and reasonable

inferences are to be resolved in favor of the verdict. United States v. Resio-Trejo,

45 F.3d 907, 910-11 (5th Cir. 1995).

To establish a violation of 18 U.S.C. § 922(g)(1), the Government must

prove that the defendant (1) has been convicted of a felony, (2) possessed a

firearm in or affecting interstate commerce, and (3) knew that he was in

possession of the firearm. United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.

1995). The only disputed element at trial was whether Patt knowingly possessed

the firearms.

Possession of a firearm may be actual or constructive, and may be proven

by circumstantial evidence. United States v. McCowan, 469 F.3d 386, 390 (5th

Cir. 2006). As Patt did not have actual possession of the firearms, the

Government had to prove “ownership, dominion, or control over the contraband

itself or dominion or control over the [location] in which the contraband is

concealed.” United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (internal

quotation marks and citation omitted). The evidence must at least support a

plausible inference that the defendant had knowledge of and access to the

weapon. Id. A jury, as trier of fact, may choose to accept or reject a witness’s
No. 07-31122

3

testimony in whole or part, even if there is some conflict in the testimony.

United States v. Pruneda-Gonzalez, 953 F.2d. 190, 196 (5th Cir. 1992). A jury’s

credibility determination can only be disturbed if the testimony is factually

impossible, which would render it incredible as a matter of law. United States

v. Landerman, 109 F.3d 1053, 1067 (5th Cir. 1997)

The evidence raised a plausible inference that Patt exercised dominion and

control over the firearms found in the Cadillac’s console. It was undisputed that

Patt was the owner of the vehicle on the date of the traffic stop and that he had

been using the vehicle for one to two months before that date. The evidence also

showed thatthe broken seal on the wooden panel would have been obvious to the

driver of the vehicle and, thus, the jury could have inferred that Patt was aware

of the altered console and that he had used it to conceal the firearms. 

Further, there was plausible evidence that Patt had ordered the custom

work performed on the vehicle. During direct examination by the Government,

Darlene and Amos Fruge, Jr. both testified that Patt had contracted for the

customizing job, including the building of the console, and had given detailed

instructions on how the work was to be performed. Fruge’s Jr.’s grand jury

testimony also reflected that he had done the work at Patt’s detailed direction.

Neither Fruge, Jr. nor Darlene gave a credible explanation for the change in

their testimony when they were called to testify for the defense. The jury was

free to accept their initial testimony as credible.

Insofar as Patt argues that the witnesses’ testimony was incredible as a

matter of law because he was incarcerated when the work was done, “[t]estimony

is incredible as a matter of law only if it relates to facts that the witness could

not possibly have observed or to events which could not have occurred under the

laws of nature.” United States v. Green, 180 F.3d 216, 221-22 (5th Cir. 1999)

(internal quotations and citations omitted). The Government presented evidence

that raised a plausible inference that Patt was released on parole at the time

that the customized work was done on the vehicle. The testimony that Patt
No. 07-31122

4

personally ordered the work to be done was an event that could have occurred

and, thus, it was not incredible testimony as a matter of law. 

Insofar as Patt argues that his counsel was deficient in his representation,

the general rule in this circuit is that a claim of ineffective assistance of counsel

cannot be resolved on direct appeal when the claim has not been raised before

the district court since no opportunity existed to develop the record on the merits

of the allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.

1987). Patt’s argument is not reviewable on direct appeal in this case because

the record is not sufficiently developed on the issue. We decline to address this

claim of ineffective assistance on direct appeal without prejudice to Patt’s right

to bring it in a 28 U.S.C. § 2255 proceeding. See United States v. Gulley, 526

F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008).

Patt’s conviction is AFFIRMED.