### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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

B e fore JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, Dis t ri c t 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 9, 2 011 Lyle W . Cayce Clerk

D ist ric t Judge of the East ern Di st ric t of Texas , sitting by d es ignati on. * Case: 10-30744 Document: 00511660560 Page: 1 Date Filed: 11/09/2011No. 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 vari o u s fellow prisoners. When he learned of Higgins’s statement (apparently by r e c e ivi n g 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 af

f i d avi t 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 r e qu i r e d t o answer their questions. Michael allegedly said in response that, as inmate counsel for several years, he knew his rights and would cooperate. During the co u r s e 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

2 Case: 10-30744 Document: 00511660560 Page: 2 Date Filed: 11/09/2011No. 10-30744

(and ignorance). In what Michael characterized as an “opening state m e n t , ” Landrieu told Michael that he may have committed a crime. At that point, Michael terminated the interview and requested counsel. Michael was charged wi th s everal 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 wa s 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 w a s e i th e r 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 l i gh t most favorable to the jury’s verdict. United States v. Winkler , 639 F.3d 692, 696 (5th Cir. 20 1 1 )

. W e review alleged errors in the jury charge under an abuse of discretion standard. United States v. Rios , 636 F.3d 168, 171 (5th Cir. 20 11). III. Discussion A. Michael 1. Motion to Suppress

3 Case: 10-30744 Document: 00511660560 Page: 3 Date Filed: 11/09/2011No. 10-30744

Michael contends that the district court erred i n d e nying his motion to

s u p p r e s s 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

e n t i tled to the warnings. It also argues that, even if Michael had been in custody, Miranda does not immunize statements that themselves are criminal. A suspe c t i s i n 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 sit u a t i o n to constitute a restraint on freedom of

m ovement of the degree which the law associates with formal arrest.” Unit e d 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 p e r s o n 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. 199 3) (citations omitted). 2 Michael argues that the recent decision in Maryland v. Shatzer , 130 S. Ct. 1213 ( 2 0 1 0) , undercuts our precedent and compels a conclusion that interrogation of a prisoner in a separate room at the pri s o n i s “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, characteriz e d it a s

Mi ra nda v. A rizo na , 384 U. S. 436( 1966)

. 1
In a habeas cas e now bef ore the Sup rem e Court , the Sixth Circ uit recent ly held that 2
a priso ner questi oned in a se par ate roo m is alw ays “in cus tody” for pur pos es of interr ogatio n aboutactivit iesoccurring outs ideof the pri so n. Fie ldsv. H ow es , 617 F.3d813, 823 (6th Cir. 2010) , cer t. grante d , 131 S. Ct . 1047 (2 011) . Becaus e Mic hael w as ques tio ned aboutc ondu ct occ urring w ithi n the priso n, this “brightli ne rule” wo uld not app ly he re. Id. at822 -23. 4 Case: 10-30744 Document: 00511660560 Page: 4 Date Filed: 11/09/2011No. 10-30744

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

me r e 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 evidenti a ry h e aring, 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 Gove r n m e nt 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 excl u s i o n ary rule does not act as a bar to the prosecution of a crime where the s t a tements 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 n o t preclude the government from introducing evidence of, or prosecuting Smith for, the threats made during the October 25 interview.”).

5 Case: 10-30744 Document: 00511660560 Page: 5 Date Filed: 11/09/2011No. 10-30744

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 cl ai m s th at the evidence was insufficient to show that he knew the affidavit he h e l p e d H iggins 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 inci d e nt. If the jury credited Higgins’s testimony, it co u l d 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 f al sity” 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. 199 2). 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

Thejury co uld not reac h a verdictas t o thes e c ount s. 3
“Pos se ss ion may be of tw o ki nds : What we call act ual pos se ss ion and wh at we call 4
cons tru ctive pos se ss ion. . . . A pers on who , although not in act ual pos se ss ion, kn ow ingly has both the pow er and the inte ntio n at any given tim e to exerc ise dom inion or cont rol over a thing

. . . either dir ect ly or thr ough so me one els e is then cons ide red to be in cons tru ctive pos se ss ion.

. . . Yo u may find that the elem ent of pos se ss ion, as that ter m is use d in thes e ins tru cti ons , is pr es ent if you find beyond a reas onable doub t that David Me lanco n had act ual or cons tru ctive pos se ss ion of the gun .
. . . ” 6 Case: 10-30744 Document: 00511660560 Page: 6 Date Filed: 11/09/2011No. 10-30744

that David actually possessed the gun based upon Higgins’s testimony that he h e a r d D avid return fire when Wyatt started shooting. Forensic evidence als o indicated that a gun was shot from the driver’s side (where Davi d w as), 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 th at thi s qu e s tion indicates some jurors were considerin g c o n s tructive p o s s e s s io n as a basis for conviction. Error in giving an instruction on o n e th eory 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 2 9 4 , 3 0 1 (5th Cir. 1993) (holding that a district court’s d e lib e r ate ignorance instruction was harmless error given substantial evidence of actual knowledge). “Actual possession means the defendant knowingly has direct p hysical control over a thing at a given time. Constructive possession is the ownership, dominion or control over an illegal i t e m i t s e lf or dominion or control over the premises in which the item is found.” United States v. Jones , 4 8 4 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 i s not enough by itself to establish c o n structive possession. See United States v. Fields , 72 F.3d 1200, 1212 (5th Cir. 1996).

7 Case: 10-30744 Document: 00511660560 Page: 7 Date Filed: 11/09/2011No. 10-30744

We agree that thi s c a s e was primarily an actual possession case. The Government, however, presented testimony th a t 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 s e n t e n cing 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 f o r further review. We agree with David that we are not free to overru l e Supreme Court precedent and, thus, affirm his sentence. AFFIRMED.

8 Case: 10-30744 Document: 00511660560 Page: 8 Date Filed: 11/09/2011