* 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. 07-51146

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

KODELL VALENTINO FOSTER,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:07-CR-17-1

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Kodell Valentino Foster appeals his jury conviction for possession with

intent to distribute cocaine within 1000 feet of a public school, possession with

intent to distribute marijuana within 1000 feet of a public school, possession of

a firearm in furtherance of a drug trafficking crime, and possession of a firearm

by a convicted felon. 

Foster argues that the district court violated his Sixth Amendment rights

by refusing to allow him to call a witness or to inform the jury, during closing

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2008

Charles R. Fulbruge III

Clerk
No. 07-51146

2

arguments,that one ofthe Government’s subpoenaed witnesses failed to testify.

He asserts thatthe jury could infer the witness’s guilt from her failure to appear

in response to a subpoena. Although criminal defendants have a fundamental

right under the Sixth Amendmentto present witnesses in their own defense,this

right is not unfettered. Taylor v. Illinois, 484 U.S. 400, 408-10 (1988). In

addition, the Sixth Amendment does not mandate that a defendant be allowed

to call the jury’s attention to a reluctant witness’s absence. United States v.

Griffin, 66 F.3d 68, 71 (5th Cir. 1995). Therefore, the district court did not

violate Foster’s Sixth Amendment rights.

When there is no Sixth Amendment violation, this court addresses

whether the district court abused its discretion in excluding evidence. United

States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005). The decision whether to

admit testimony or other evidence is within the sound discretion of the district

court. United States v. Virgen-Moreno, 265 F.3d 276, 295 (5th Cir. 2001). It is

well settled that it is impermissible to draw inferences from a party’s failure to

call a witness equally available to both sides. Id. at 291. However, “[w]hen a

witness is controlled by one party, failure to call the witness, if his testimony

would elucidate facts in issue, creates an inference which the jury is permitted

to draw against that party.” United States v. Chapman, 435 F.2d 1245, 1247

(5th Cir. 1970). Foster has not shown that the witness, his live-in girlfriend, was

in the Government’s control to create an inference to be drawn against the

Government. Moreover, an attorney is not permitted to state in closing

arguments that he could have called additional witnesses whose testimony

would have supported his theory of the case. United States v. Vaglica, 720 F.2d

388, 394 (5th Cir. 1983). Finally, any error was harmless because Foster has not

demonstrated that the failure to call the jury’s attention to the absence of the

witness’s testimony was harmful error with a “substantial and injurious”

influence on the jury’s verdict. See United States v. Lowery, 135 F.3d 957, 959

(5th Cir. 1998).
No. 07-51146

3

Foster also argues that there was insufficient evidence to prove that he

had knowledge of either the drugs or the weapon. The knowledge element for

possession of contraband is rarely proven by direct evidence. United States v.

Lopez, 74 F.3d 575, 577 (5th Cir. 1996). However, knowledge can be established

by inference and circumstantial evidence. United States v. Garcia-Flores, 246

F.3d 451, 454 (5th Cir. 2001).

Testimony established that a search of Foster’s vehicle revealed the

presence of a large, partially unzipped black duffle bag containing a loaded pistol

rifle, twenty-six pounds of marijuana, and twenty-one grams of cocaine. The

weapon was pointed up, out of the duffle bag, and the marijuana emitted a very

strong odor throughout the interior of the vehicle. Although Foster was not the

registered owner of the vehicle, he was listed as an approved driver on the

insurance and admitted that he had been in possession of the vehicle for at least

one month. Because the contraband was not hidden in a compartment, the jury

could have inferred knowledge simply from Foster’s control over the vehicle. See

id. Other circumstantial evidence of guilty knowledge included Foster’s initial

reluctance to grant the police request to search the vehicle but resulting lack of

surprise when the contraband was discovered; the presence on Foster’s person

of a large sum of money in small denominations, indicative of drug dealers; and

the presence of drug paraphernalia discovered during a subsequent search of

Foster’s residence. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th

Cir. 1998) (per curiam). There was sufficient evidence to sustain a

determination that Foster had knowledge of the drugs and weapon.

AFFIRMED.