United States of America v. Michael William Gabbard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL WILLIAM GABBARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:06-cr-00326-JAB-1)
Submitted: June 15, 2010 Decided: July 2, 2010
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allan Levin, COZEN O’CONNER, Atlanta, Georgia, for Appellant.
Anna Mills Wagoner, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael William Gabbard appeals his conviction and
sentence, following a jury trial, on charges of possession with
intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(d) (2006) (Count Two); possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count Three); maintaining
a residence for the purpose of manufacturing, distributing, and
using a controlled substance, in violation of 21 U.S.C.
§ 856(a)(1), (b) (2006) (Count Four); and possessing a firearm
after having been convicted of a felony, in violation of 18
U.S.C. §§ 922(g), 924 (2006) (Count Five). Gabbard pled guilty
before trial to distribution of marijuana, also in violation of
21 U.S.C. § 841(a)(1), (b)(1)(d) (Count One). The district
court sentenced Gabbard to 300 months in prison on Count Five;
120 months on Count One, to run concurrently with Count Five;
120 months on Count Two, to run concurrently with Counts One and
Five; 240 months on Count Four, to run concurrently with Counts
One, Two, and Five, and 60 months on Count Three, to run
consecutively to Counts One, Two, Four, and Five, for a total
sentence of 360 months. Gabbard challenges the convictions on
Counts Two, Three, Four, and Five as not supported by sufficient
evidence. For the reasons that follow, we affirm.

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“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690
(2008). This court reviews a sufficiency of the evidence
challenge by determining whether, viewing the evidence in the
light most favorable to the Government, any rational trier of
fact could find the essential elements of the crime beyond a
reasonable doubt. United States v. Collins, 412 F.3d 515, 519
(4th Cir. 2005). This court reviews both direct and
circumstantial evidence, and accords the Government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008). In reviewing for sufficiency of the evidence,
this court does not review the credibility of the witnesses, and
assumes that the jury resolved all contradictions in the
testimony in favor of the Government. United States v. Kelly,
510 F.3d 433, 440 (4th Cir. 2007). We will uphold the jury’s
verdict if substantial evidence supports it, and will reverse
only in those rare cases of clear failure by the prosecution.
Foster, 507 F.3d at 244-45.
Gabbard’s argument on appeal is that because he was
not found in the trailer where the subject marijuana and
firearms were found, the Government cannot satisfy the
possession element of Counts Two, Three, and Five, and cannot

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establish that he maintained a residence at the trailer to
sustain his conviction on Count Four. He does not dispute the
presence of marijuana or firearms in the trailer or challenge
his previous felony conviction.
Possession may be actual or constructive. See United
States v. Rusher, 966 F.2d 868, 879 (4th Cir. 1992). We have
previously upheld findings of constructive possession in cases
with facts similar to those in this case. See, e.g., United
States v. Morrison, 991 F.2d 112 (4th Cir. 1993) (constructive
possession where defendant resided in home that was used for
manufacture and distribution of crack cocaine) (citing United
States v. Lawson, 682 F.2d 1012, 1017 (D.C. Cir. 1982) (joint
possession of the premises where drugs are in plain sight
sufficient to find possession)); United States v. Davis, 562
F.2d 681, 685 (D.C. Cir. 1977) (defendant who lived on premises
had constructive possession of drugs openly displayed).
Gabbard challenges the Government’s contention that he
lived in the trailer where the marijuana and firearms were
found. He first asserts that absent some official documentation
of Gabbard’s residency (such as a lease or utility bill) the
jury could not link him to the trailer, and that in addition,
the lack of his fingerprints on the premises fatally undermines
the Government’s case against him. While it is true that
evidence of a lease or utility bill in Gabbard’s name, or

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evidence of Gabbard’s fingerprints at the premises, would have
been persuasive, we have never held that the most persuasive
evidence is necessary for a conviction. Here, officers found
mail addressed to Gabbard at the trailer’s mailing address,
along with several of Gabbard’s personal effects. In addition,
a Government witness testified that he had purchased marijuana
from Gabbard at the trailer between ten and fifteen times.
Finally, a Government witness placed Gabbard at the trailer
moments before the police executed the search warrant and
discovered the contraband in the trailer. The jury could, and
in fact did, reasonably find that Gabbard had constructive
possession of the contents of the trailer.
Gabbard asserts that the Government’s witness placing
him in the trailer on the day of the police raid was mistaken.
While conceding that this court does not judge the credibility
of witnesses, Gabbard argues that under the “physical facts
doctrine,” we may ignore the witnesses’ testimony. Gabbard’s
appeal to the physical facts doctrine is unavailing. To ignore
a witness’s testimony on “physical facts” grounds, the testimony
must be “utterly at variance with well-established and
universally recognized physical laws and therefore inherently
impossible.” United States v. Shipp, 409 F.2d 33, 37
(4th Cir. 1969) (quoting Travelers Indemnity Co. v. Parkersburg
Iron & Steel Co., 70 F.2d 63 (4th Cir. 1934)). While it may

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have been difficult to evade police on the day of the raid,
Gabbard has not demonstrated that such an escape would have been
“inherently impossible.”
Viewing the evidence in the light most favorable to
the Government, we conclude that a reasonable jury could
determine that Gabbard lived at the trailer, and was present on
May 19, 2005, and therefore had constructive possession of the
marijuana and firearms found in the trailer on that date.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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