IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30744

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

MICHAEL MELANCON, also known as Kevin Melancon; DAVID

MELANCON,

Defendants – Appellants

Appeals from the United States District Court 

for the Eastern District of Louisiana 

Before JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, District

Judge.*

HAYNES, Circuit Judge:

Michael Melancon (“Michael”) and his nephew, David Melancon (“David”),

appeal their convictions following a jury trial. David also appeals his sentence. 

We AFFIRM.

I. Facts and Background

We briefly review the facts pertinent to this appeal. David was the driver

of a car in which Jamar Higgins was a passenger when Arnold Wyatt began

shooting at the car. Viewing the evidence in the light most favorable to the jury

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2011

Lyle W. Cayce

Clerk

 District Judge of the Eastern District of Texas, sitting by designation. *

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No. 10-30744

verdict, David picked up a gun and began returning fire. Miraculously, neither

was killed, but David was wounded. When the shooting stopped, Higgins pulled

David into the back seat and drove him to the emergency room. Because Higgins

knew he was a felon who could not possess a gun, he then threw the gun out the

window, an event captured by the hospital’s security cameras.

David was charged with possessing a firearm as a felon. Higgins gave a

statement implicating David. Higgins later briefly served time in prison for an

unrelated charge. Michael was in the same prison on other charges and acted

as inmate counsel for various fellow prisoners. When he learned of Higgins’s

statement (apparently by receiving a copy of it), he went to Higgins, who then

signed an affidavit providing a version of events that exculpated David. It was

highly disputed whether Higgins wrote the affidavit of his own accord and then

Michael merely typed it for Higgins’s signature, or whether Michael prepared a

false typed affidavit, got Higgins to sign it, and then had Higgins copy the typed

affidavit in his own handwriting.

When the Higgins affidavit came to the attention of authorities, they

decided to investigate whether this new version was accurate. ATF agent

Suzanne Pecora and Assistant United States Attorney Maurice Landrieu went

to the prison and interviewed Michael in a warden’s office. They contend that

they told Michael he was free to leave and was not required to answer their

questions. Michael allegedly said in response that, as inmate counsel for several

years, he knew his rights and would cooperate. During the course of the

interview, he said that Higgins had prepared the handwritten affidavit and that

Michael had only typed it. He claimed a hazy memory as to whether he had seen

Higgins’s factual statement implicating David. During the interview, he left to

obtain documents as requested by the two questioners.

When a search revealed a marked-up factual statement in Michael’s

possession, the questioners began to doubt Michael’s protestations of innocence

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(and ignorance). In what Michael characterized as an “opening statement,”

Landrieu told Michael that he may have committed a crime. At that point,

Michael terminated the interview and requested counsel.

Michael was charged with several counts stemming from the Higgins

affidavit and the interview with Pecora and Landrieu. He moved to suppress the

statements made at the interview. Following a two-day evidentiary hearing, the

district court denied the motion to suppress.

David and Michael proceeded to a jury trial at which those statements

were admitted. David was convicted of possessing a firearm as a felon, and

Michael was convicted of making and using a false document that was presented

to a federal agent and of obstruction of justice. The jury was either unable to

reach a verdict or acquitted David and Michael on several other counts.

On appeal, Michael challenges the denial of his motion to suppress and the

sufficiency of the evidence on the false document charge. David challenges the

court’s jury instruction on constructive possession and also brings a foreclosed

issue as to his sentence.

II. Standard of Review

In reviewing a ruling on a motion to suppress, we view the evidence in the

light most favorable to the prevailing party, reviewing factual findings for clear

error and legal conclusions de novo. United States v. Oliver, 630 F.3d 397, 405

(5th Cir. 2011). We review a denial of a motion for acquittal challenging the

sufficiency of the evidence de novo, viewing the evidence in the light most

favorable to the jury’s verdict. United States v. Winkler, 639 F.3d 692, 696 (5th

Cir. 2011). We review alleged errors in the jury charge under an abuse of

discretion standard. United States v. Rios, 636 F.3d 168, 171 (5th Cir. 2011).

III. Discussion

A. Michael

1. Motion to Suppress

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Michael contends that the district court erred in denying his motion to

suppress because he was in custody at the time of the Pecora/Landrieu

questioning and, therefore, was entitled to receive full Miranda warnings. The 1

Government contends that Michael was not “in custody” and, therefore, was not

entitled to the warnings. It also argues that, even if Michael had been in

custody, Miranda does not immunize statements that themselves are criminal. 

A suspect is in custodial interrogation for purposes of Miranda “when

placed under formal arrest or when a reasonable person in the suspect’s position

would have understood the situation to constitute a restraint on freedom of

movement of the degree which the law associates with formal arrest.” United

States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). The question

is an objective one – the subjective intent of the questioners and the subjective

fear of the questioned person are irrelevant. See Stansbury v. California, 511

U.S. 318, 326 (1994). “[A] prison inmate is not automatically always ‘in custody’

within the meaning of Miranda,” although the “prison setting may increase the

likelihood that an inmate is in ‘custody’ for Miranda purposes.” United States

v. Smith, 7 F.3d 1164, 1167 (5th Cir. 1993) (citations omitted).2

Michael argues that the recent decision in Maryland v. Shatzer, 130 S. Ct.

1213 (2010), undercuts our precedent and compels a conclusion that

interrogation of a prisoner in a separate room at the prison is “custodial.” In

Shatzer, however, no one contended that the defendant in that case was not “in

custody” during the two interrogations. Id. at 1224. Thus, it does not present

a basis to overrule our prior precedent. We have, instead, characterized it as

Miranda v. Arizona, 384 U.S. 436 (1966).

1

In a habeas case now before the Supreme Court, the Sixth Circuit recently held that 2

a prisoner questioned in a separate room is always “in custody” for purposes of interrogation

about activities occurring outside of the prison. Fields v. Howes, 617 F.3d 813, 823 (6th Cir.

2010), cert. granted, 131 S. Ct. 1047 (2011). Because Michael was questioned about conduct

occurring within the prison, this “bright line rule” would not apply here. Id. at 822-23.

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clarifying “the outer bounds of when Miranda is needed in a prison setting: the

mere fact of the prison setting alone is insufficient to trigger the Miranda

requirements, whereas a traditional police interrogation of an inmate does

trigger the Miranda requirements.” Wilson v. Cain, 641 F.3d 96, 101 (5th Cir.

2011). 

Following a lengthy evidentiary hearing, the district court issued a

detailed and careful opinion. United States v. Melancon, 2010 U.S. Dist. LEXIS 

8669 (E.D. La. 2010). For substantially the same reasons given in that opinion,

we conclude that, construing the evidence at the suppression hearing in the light

most favorable to the Government, the district court’s decision does not warrant

reversal.

Even if we concluded otherwise and determined that Michael was “in

custody” at the time of his discussion with Pecora and Landrieu, we agree with

the Government that the statements would have been admissible at his trial

because they were themselves a criminal act. See United States v. Kirk, 528 F.2d

1057, 1062 (5th Cir. 1976) (“[N]o fifth amendment problem is presented when a

statement is admitted into evidence which is not confessional in nature, but in

and of itself constitutes the crime charged.”). Hence, Michael was not free to lie

to the questioners and be absolved from the consequences of those lies because

of the absence of warnings. The exclusionary rule does not act as a bar to the

prosecution of a crime where the statements themselves are the crime. See

Smith, 7 F.3d at 1167 n.6 (citing United States v. Mitchell, 812 F.2d 1250, 1253

(9th Cir. 1987)). Because the statements he made were themselves charged as

criminal conduct, they were properly admitted as the key evidence on the counts

of making false statements. Cf. id. at 1167 (“On remand, the alleged Miranda

error does not preclude the government from introducing evidence of, or

prosecuting Smith for, the threats made during the October 25 interview.”). 

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Having concluded that the evidence was properly admitted at the time of trial,

the later failure to obtain a conviction on those counts (Counts 6, 7, and 8) does 3

not change the calculus. In sum, we AFFIRM the denial of the motion to

suppress.

2. Sufficiency of the Evidence

Michael claims that the evidence was insufficient to show that he knew the

affidavit he helped Higgins prepare was false. Higgins originally told

investigators that the gun was in the car on the center console and that he heard

shooting from within the car (where only he and David were sitting) after Wyatt

opened fire. The Government presented evidence at trial that supported

Higgins’s story. In the affidavit prepared by Michael, however, Higgins stated

that Wyatt threw the gun into the car after the shooting incident. If the jury

credited Higgins’s testimony, it could reasonably conclude that Michael added

the information about Wyatt throwing the gun in the car and that he did not get

that information from Higgins. We conclude that the “knowledge of falsity” issue

comes down to a credibility question which was for the jury to resolve. See, e.g.,

United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992).

B. David

The charge to the jury included an instruction on constructive possession.4

David argues that this instruction was erroneous because it was not applicable

to the facts and confused the jury. He argued that the Government’s case was

 The jury could not reach a verdict as to these counts. 3

“Possession may be of two kinds: What we call actual possession and what we call 4

constructive possession. . . . A person who, although not in actual possession, knowingly has

both the power and the intention at any given time to exercise dominion or control over a thing

. . . either directly or through someone else is then considered to be in constructive possession.

. . . You may find that the element of possession, as that term is used in these instructions, is

present if you find beyond a reasonable doubt that David Melancon had actual or constructive

possession of the gun . . . .”

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that David actually possessed the gun based upon Higgins’s testimony that he

heard David return fire when Wyatt started shooting. Forensic evidence also

indicated that a gun was shot from the driver’s side (where David was), and

DNA evidence indicated that both Higgins and Wyatt had not fired the gun

(although it failed to establish conclusively that David had fired it). David

argues that the district court overlooked the fact that Higgins was also in the car

before the gun was found and, therefore, that David’s dominion over the car in

which the gun was located was insufficient to establish constructive possession. 

David further argues that the allegedly erroneous inclusion of this instruction

was not harmless because the jury sent a question to the court asking whether

possession meant physically touching or having on one’s person. He concludes

thatthis question indicates some jurors were considering constructive possession

as a basis for conviction.

Error in giving an instruction on one theory of guilt is harmless when

there is substantial evidence to support a conviction under a different, properly

given instruction. Cf. United States v. Cartwright, 6 F.3d 294, 301 (5th Cir.

1993) (holding that a district court’s deliberate ignorance instruction was

harmless error given substantial evidence of actual knowledge). “Actual

possession means the defendant knowingly has direct physical control over a

thing at a given time. Constructive possession is the ownership, dominion or

control over an illegal item itself or dominion or control over the premises in

which the item is found.” United States v. Jones, 484 F.3d 783, 788 n.11 (5th

Cir. 2007) (internal quotation marks and citations omitted). Where two people

jointly occupy a space, dominion over the space is not enough by itself to

establish constructive possession. See United States v. Fields, 72 F.3d 1200,

1212 (5th Cir. 1996).

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We agree that this case was primarily an actual possession case. The

Government, however, presented testimony that David was in a car rented on

his behalf, that a gun was on the center console, and that the only other person

present in the car did not possess the gun. We thus conclude that no reversible

error was committed by including the constructive-possession instruction.

David also challenges sentencing enhancements based upon conduct for

which he was acquitted. He acknowledges that his challenges are foreclosed, see

United States v. Watts, 519 U.S. 148, 156-57 (1997), but seeks to preserve them

for further review. We agree with David that we are not free to overrule

Supreme Court precedent and, thus, affirm his sentence.

AFFIRMED. 

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