United States v. Malcom Muhammad Fomby
692 F. App'x 585
| 11th Cir. | 2017Background
- Malcolm Fomby was prosecuted under 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon; he stipulated to the felony conviction and interstate-commerce element.
- Police executed a search warrant at 501 Milton Street and found a firearm hidden in a bedpost of the sole bedroom containing a bed.
- Fomby had lived at the house for several years, sometimes paid utilities, his name appeared on a utility bill on the bedroom dresser, and his car was in the driveway though he was not present when police arrived.
- Fomby testified at trial but the jury rejected his account; he appealed, arguing (1) insufficient evidence of possession, (2) violation of his right to present a defense by excluding his sister’s testimony for violating a sequestration order, and (3) denial of a one-day continuance to secure an absent witness.
- The Eleventh Circuit reviewed sufficiency de novo, applied harmless-error and abuse-of-discretion standards to the evidentiary and continuance challenges, and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Fomby knowingly possessed the firearm | Evidence was insufficient to prove he knew of or exercised dominion/control over the firearm | Government argued circumstantial evidence (residence, utility bill, single occupied bedroom, gun in bedpost) permitted inference of constructive possession | Affirmed: circumstantial evidence and rejected testimony supported a reasonable jury finding constructive possession |
| Exclusion of sister Theresa Good for violating sequestration order | Exclusion violated right to present a complete defense; Good would corroborate house/bed relationships | Court excluded Good under sequestration rules; government had other witnesses and facts | Harmless error: Good’s testimony would have been cumulative of testimony from Fomby and his mother |
| Denial of one-day continuance to obtain absent witness | Short continuance would have allowed presentation of exculpatory testimony | District court found delay unreasonable given predictable short government case and insufficient specificity about expected testimony | No abuse of discretion: Costello factors weighed neutral or against Fomby and he showed no specific, substantial prejudice |
Key Cases Cited
- United States v. Baldwin, 774 F.3d 711 (11th Cir.) (standard for de novo sufficiency review)
- United States v. Calhoon, 97 F.3d 518 (11th Cir.) (reasonable-trier-of-fact standard for sufficiency)
- United States v. Mieres-Borges, 919 F.2d 652 (11th Cir.) (jury could accept or reject reasonable hypotheses of innocence)
- United States v. Deleveaux, 205 F.3d 1292 (11th Cir.) (elements of § 922(g)(1))
- United States v. Derose, 74 F.3d 1177 (11th Cir.) (actual and constructive possession)
- United States v. Perez, 661 F.3d 568 (11th Cir.) (constructive-possession elements: awareness and ability/intent to exercise dominion)
- United States v. Mendez, 528 F.3d 811 (11th Cir.) (circumstantial evidence requires reasonable inferences)
- United States v. Hughes, 840 F.3d 1368 (11th Cir.) (disbelieved defendant testimony may be considered substantive evidence)
- United States v. Brown, 53 F.3d 312 (11th Cir.) (corroborative evidence gives defendant’s disbelieved testimony special force on subjective elements)
- United States v. Hurn, 368 F.3d 1359 (11th Cir.) (two-step analysis for right to call witnesses)
- De Lisi v. Crosby, 402 F.3d 1294 (11th Cir.) (constitutional error is harmful if it substantially influenced verdict)
- United States v. Hock, 995 F.2d 195 (11th Cir.) (exclusion of cumulative evidence is harmless)
- United States v. Costello, 760 F.2d 1123 (11th Cir.) (four-factor test for continuance to obtain witness)
- United States v. Wuagneux, 683 F.2d 1343 (11th Cir.) (standard for showing specific, substantial prejudice to obtain relief on continuance denial)