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Click here for the full text of this decision FACTS:At approximately 11:15 p.m. on April 9, 2003, defendant Mario Alfredo Salinas was driving a black 1999 GMC Yukon. Officer Erwin Fulcher of the Carrollton police department stopped the vehicle, because it had a defective tail light. Fulcher asked Salinas for his license and proof of insurance. Salinas gave the officer his driver’s license but stated that he did not have proof of insurance, because he was in the process of purchasing the vehicle. Fulcher eventually arrested Salinas for failing to provide proof of insurance and transported Salinas to the Carrollton police station. After Fulcher arrested Salinas, additional Carrollton police officers on the scene conducted an inventory search of the Yukon. During the search, officers found a brown paper bag, which contained $3,397 in cash, between the driver’s seat and the center console. Beneath the bag, officers found a loaded Ruger 9mm semiautomatic pistol. Officers also found a black pouch containing a loaded Rossi .357 Magnum revolver under the front passenger seat. The Yukon’s rear cargo area contained a gym bag with $168 and some vitamins inside it. At the police station, officers found $2,168 in cash in Salinas’ jacket pocket. Two days after his arrest, Salinas returned to the Carrollton police station and said that he wished to pick up his money and other stuff. The property room officer stated that all of the seized property was evidence and could not be released to Salinas. The officer also stated that, because Salinas was a convicted felon, the firearms could not be returned to him. Salinas responded, “I know that,” and he then left. Ultimately, police charged Salinas with one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. �� 922(g)(1) and 924(a)(2). At trial, Salinas’ defense was that his friend Rosendo Moreno lent him the Yukon and that he did not know that the firearms were in the car. Moreno testified at trial that he purchased the Yukon on April 8, 2003, from a man named Henry Lopez. Moreno stated that on April 9, 2003, he took the vehicle to Big Rig Detailers, an automotive shop at which Salinas worked, to have some hail damage repaired and to have the car painted. While he was there, Moreno stated, Salinas told Moreno that his car was in the shop, and he asked Moreno whether he could borrow the Yukon. To support Moreno’s testimony, the defense offered into evidence a bill of sale showing a sale from Lopez to Moreno on April 8, 2003. Moreno also testified that the cash and the two firearms found in the Yukon belonged to him. He stated that he purchased the .357 Magnum in a “street buy,” and that he purchased the 9mm from a friend named Carlos Hernandez. Moreno testified that the guns were in the Yukon, because he had used them at a gun range earlier on April 9, 2003, before he loaned the vehicle to Salinas. He also testified that he kept the firearms loaded, because he was once the victim of an attempted carjacking. On cross-examination, Moreno admitted that he did not have a permit for either weapon, that the firearms were not registered to him, and that he did not have any documentation to prove that he owned the firearms. The prosecution also cross-examined Moreno at some length about other aspects of his version of events, including the fact that, although he claimed that the $3,397 found in the Yukon belonged to him, he had never made any attempt to recover the money from the Carrollton police department. The defense also presented testimony from Carlos Hernandez, who testified that he sold Moreno the 9mm in March 2003, and from Salinas’ employer, Christopher Cruz, who stated that he recalled that Moreno brought a sport utility vehicle to Big Rig Detailers in April 2003 and that Salinas had borrowed the vehicle. Salinas did not testify in his own defense at the trial. In rebuttal, the prosecution presented testimony from Henry Lopez, the registered owner of the Yukon. Lopez testified that he did not sell the Yukon to Moreno on April 8, 2003. Lopez stated that he actually signed the document on April 16, 2003. On Jan. 20, 2005, a jury convicted Salinas, and on July 11, 2005, the district court sentenced him to 57 months in prison. On appeal, Salinas argued that the prosecution improperly attempted to use his post-arrest silence as substantive evidence of his guilt and claimed that insufficient evidence supported his conviction. HOLDING:Affirmed. Salinas claimed that the prosecution improperly made reference to his post-arrest silence at three points during its case-in-chief. First, during the prosecution’s opening argument, the prosecutor stated, “At no time, at no time, the evidence is going to show, that the defendant denied ownership of the money or guns.” Second, the prosecutor asked Fulcher “how, if at all” Salinas reacted when he heard that firearms had been found in the Yukon. Third, the prosecution asked Fulcher whether Salinas made any statements after his arrest. The court sustained three objections. When the defense sought an instruction to disregard, the trial court included instructions in the jury charge that made clear that the jury was not to consider any of the challenged remarks. The court stated that Salinas failed to preserve error. Salinas’ counsel, the court stated, never took exception to the district court’s handling of his objections and never requested that the district court declare a mistrial. Thus, the court only reviewed the record for plain error in the matter. To establish plain error, the court stated, the defendant must show that there was an error; the error was clear or obvious; and the error affected the defendant’s substantial rights. The court stated that due process does not prohibit the prosecution from impeaching a defendant’s trial testimony by referring to the defendant’s pre-arrest, or post-arrest but pre-Miranda, silence. Finding that testimony regarding Salinas’ silence fell into this category, the court found no plain error. Salinas also asserted that the testimony in question violated his Fifth Amendment right against self-incrimination. But the 5th U.S. Circuit Court of Appeals stated that it has never held that prosecutors cannot introduce at trial substantive evidence that the defendant remained silent after he was arrested and taken into custody but before he was given Miranda warnings. Because the court never prohibited this practice, Salinas could not show clear error, the court stated. The court then assessed Salinas’ evidentiary sufficiency challenge. To convict Salinas, the government had to prove that Salinas had a prior felony conviction; that he possessed a firearm; and that the firearm traveled in or affected interstate commerce. The trial court correctly charged the jury that possession could be actual or constructive, the court stated. The state may establish constructive possession, the court stated, by showing ownership, dominion or control over an item; or dominion or control over the place where the item is found. The court stated that sufficient evidence in the record supported an inference that Salinas possessed the firearms and knew that they were in the Yukon. This evidence, the court stated, was easily sufficient for a jury to conclude that the government satisfied its burden of proof. OPINION:Dennis, J.; Garwood, Dennis and Owen, J.J.

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