F I L E D
United States Court of Appeals
Tenth Circuit
NOV 17 1999
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee/
Cross - Appellant,
Nos. 98-8093 & 98-8103
v.
FRANCIS EDWARD SPRINGFIELD,
Defendant - Appellant/
Cross - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 98-CR-051-01-B)
James H. Barrett, Assistant Federal Public Defender, Cheyenne, Wyoming,
appearing for Appellant/Cross-Appellee.
Sean Connelly, Attorney, United States Department of Justice, Denver, Colorado
(David D. Freudenthal, United States Attorney, and John R. Green, Assistant
United States Attorney, District of Wyoming, Cheyenne, Wyoming, with him on
the brief), appearing for Appellee/Cross-Appellant.
Before TACHA , McKAY , and HENRY , Circuit Judges.
TACHA , Circuit Judge.
Defendant Springfield appeals his conviction for (1) possession with intent
to distribute methamphetamine and aiding and abetting in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, (2) carrying a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), (3) being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and (4) being a
felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). He
argues that the district court erred in denying his motion to suppress. He further
claims that sufficient evidence did not exist for a jury to convict him of any of the
charges. The government cross-appeals the district court’s decision not to
sentence the defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
and armed career criminal sentencing guideline, U.S. Sentencing Guidelines
Manual § 4B1.4.
We have jurisdiction over defendant’s appeal pursuant to 28 U.S.C. § 1291
and over the government’s cross-appeal pursuant to 18 U.S.C. § 3742(b). We
AFFIRM in part and REVERSE in part.
I. Defendant’s Appeal
A. Background
Around midnight on February 15, 1998, police officer Rod Gates
encountered a brown van with Montana plates traveling about thirty miles per
hour. Two passengers in the rear of the van, defendant and Shannon Old Elk,
repeatedly looked back at Gates as he followed the van. Gates requested a
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registration check on the Montana plates and learned that they were registered to
a different vehicle. While he was waiting for the registration check to be
completed, Gates observed that the defendant and Old Elk were reaching over and
under the seat and continued to look back at him. Once Gates learned that the van
did not have valid plates, he activated his emergency lights. The van continued at
the same speed for approximately two blocks while defendant and Old Elk
reached under and around the seat in a more exaggerated manner than they had
before.
After the van pulled over, Gates approached the van and explained to the
driver, Edward Notafraid, why he had stopped the vehicle. Cheney Springfield
and Mark Nomee were seated beside Notafraid in the front of the van. Old Elk
sat behind the passenger side of the van, while defendant sat behind the driver’s
side of the van. A subsequent search of the van, pursuant to Notafraid’s
voluntary consent, revealed drugs, drug paraphernalia and a gun. Specifically,
Gates found a segment of PVC pipe and 19.68 grams of methamphetamine in a
shopping bag on the rear passenger side floor to the right of where Old Elk had
been sitting. Another officer found a Colt 9 millimeter semi-automatic pistol in a
woman’s drawstring purse on the rear floor directly in front of where defendant
had been seated.
After Gates discovered the methamphetamine, he asked the occupants of
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the van who the drugs belonged to. Notafraid, Cheney Springfield, Nomee and
Old Elk all stared at defendant, while defendant looked down. Shortly thereafter,
one of the officers recognized defendant as a convicted violent offender. The
officers eventually arrested all of the van’s occupants and transported them to the
county jail. When Gates mirandized and questioned Old Elk at the scene, she
claimed that the drugs and the gun belonged to her. At the jail, she again claimed
that the drugs belonged to her.
One of the officers searched defendant at the jail and discovered trace
amounts of methamphetamine and five rounds of 9 millimeter ammunition. The
same type of ammunition was loaded in the gun found in the purse, and one of the
cartridges found in defendant’s pocket appeared, from ballistics review, to have
been cycled previously through the gun.
B. Probable Cause to Arrest
Defendant asserts that the district court erred in denying his motion to
suppress the evidence discovered after he was arrested. He claims the police did
not have probable cause to arrest him and, therefore, the ammunition and drugs
found on his person following his arrest should have been suppressed. In
reviewing the denial of a motion to suppress, we must accept the district court’s
factual findings unless they are clearly erroneous and we view the evidence in the
light most favorable to the prevailing party. United States v. Vazquez-Pulido ,
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155 F.3d 1213, 1216 (10th Cir.), cert. denied , 119 S. Ct. 437 (1998). However,
we review de novo the legal issue of whether the police had probable cause to
arrest defendant. United States v. Dozal , 173 F.3d 787, 792 (10th Cir. 1999).
“‘Probable cause to arrest exists when an officer has learned of facts and
circumstances through reasonably trustworthy information that would lead a
reasonable person to believe that an offense has been or is being committed by the
person arrested.’” Vazquez-Pulido , 155 F.3d at 1216 (quoting United States v.
Guerrero-Hernandez , 95 F.3d 983, 986 (10th Cir. 1996)). We determine whether
probable cause to arrest exists based on the totality of the circumstances. Id.
While probable cause to arrest “does not require facts sufficient to establish guilt,
[it] does require more than mere suspicion.” Id.
Defendant maintains that at the time of his arrest, the police had no
evidence that he was connected in any way to the drugs or the gun. He argues,
therefore, that the police arrested him solely because of his proximity to criminal
activity. We agree with defendant that “nearness to the place of the arrest of a
co-conspirator or to the place of illegal activity” is not sufficient to establish
probable cause. Id. However, defendant was not arrested merely because he was
present at the scene of a crime.
According to the district court, the police knew the following facts at the
time of defendant’s arrest: (1) defendant engaged in furtive actions in the rear of
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the van as Officer Gates followed the vehicle, (2) defendant was a passenger in a
vehicle with invalid tags, (3) the police found drugs and a gun in defendant’s
vicinity within the van, (4) the other occupants of the van looked to defendant for
guidance and followed his lead, and (5) defendant was a violent felon. The
district court concluded that it was logical for the police to infer that defendant’s
furtive actions were attempts to conceal the contraband located near him in the
van. The district court also found that it was reasonable for the police to assume
defendant was tied to the contraband because the van’s other occupants deferred
to him and he was a known violent criminal.
From the totality of the circumstances, we hold that the arresting officers
could reasonably infer a connection between defendant and the drugs and gun
found in the van. Thus, viewing the evidence in the light most favorable to the
government, we agree with the district court that the police had probable cause to
arrest defendant. Consequently, we affirm the district court’s denial of
defendant’s motion to suppress.
C. Sufficiency of the Evidence
Defendant argues that the government introduced insufficient evidence at
trial to support his convictions for possession of narcotics with the intent to
distribute, carrying a firearm during a drug offense, and being a felon in
possession of a firearm. He asserts that no rational trier of fact could have found
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that he knowingly possessed the drugs and gun found in the van. Furthermore,
defendant claims that the government lacked sufficient evidence to convict him of
being a felon in possession of ammunition. He contends that the ammunition
found on his person was the fruit of an unlawful arrest and, therefore, was
inadmissible at trial.
We review sufficiency of the evidence claims de novo, asking “‘only
whether, taking the evidence -- both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom -- in the light most favorable to the
government, a reasonable jury could find [Defendant] guilty beyond a reasonable
doubt.’” United States v. Jenkins , 175 F.3d 1208, 1215 (10th Cir.), cert. denied ,
__ S. Ct. __, 1999 WL 623883 (1999) (quoting United States v. Voss , 82 F.3d
1521, 1524-25 (10th Cir. 1996)). To determine whether the evidence is sufficient,
we consider the inferences that can be drawn from the evidence as a whole. Id.
We do not “question the jury’s credibility determinations or its conclusions about
the weight of the evidence.” United States v. Lazcano-Villalobos , 175 F.3d 838,
843 (10th Cir. 1999).
1. Possession of the Drugs and Gun
The government argues that it presented sufficient evidence from which a
jury could conclude that defendant constructively possessed the drugs and gun.
“A person constructively possesses contraband when he or she knowingly holds
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ownership, dominion or control over the object and premises where it is found.”
Lazcano-Villalobos , 175 F.3d at 843. A defendant’s exclusive possession of the
object or premises “may support an inference of constructive possession,” but
joint occupancy of the object or premises “cannot sustain such an inference.” Id.
“To prove constructive possession where there is joint occupancy, the government
must present direct or circumstantial evidence to show some connection or nexus
individually linking [defendant] to the contraband.” Id. In other words, the
government must offer evidence that supports “at least a plausible inference [that
defendant] knew of the contraband.” Id.
Here, defendant jointly occupied the van with four other occupants.
Nevertheless, ample evidence exists from which a jury could have found
defendant knew of the drugs and gun in the vehicle. First, defendant engaged in
furtive actions in the rear of the van as Officer Gates followed the vehicle.
Second, both the drugs and the gun were found in the rear of the van close to
where defendant had been seated. Third, the police found trace amounts of
methamphetamine in defendant’s jacket. Fourth, the gun was a 9 millimeter colt
pistol and the police found five rounds of 9 millimeter ammunition on the
defendant. Finally, one of the bullets defendant was carrying appeared to have
been cycled previously through the gun.
Thus, viewing the evidence in the light most favorable to the government,
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sufficient evidence exists to support the jury’s convictions of defendant for
possession of narcotics with the intent to distribute, carrying a firearm during a
drug offense, and being a felon in possession of a firearm. The government
presented evidence supporting at least a plausible inference that defendant
constructively possessed the drugs and gun in the van.
2. Possession of Ammunition
Defendant’s argument that the ammunition found on his person was
inadmissible at trial as the fruit of an unlawful arrest is meritless. As we held
above, the police had probable cause to arrest defendant. Consequently, the
police discovered the ammunition pursuant to a legal search and the government
properly introduced it at trial. Thus, sufficient evidence exists to support the
jury’s conviction of defendant for being a felon in possession of ammunition
II. Government’s Cross-Appeal
The government argues that the district court committed legal error when it
refused to sentence defendant as an armed career criminal under 18 U.S.C.
§ 924(e), the Armed Career Criminal Act (ACCA). Section 924(e)(1) provides
that a defendant who has three or more prior violent felony convictions and
subsequently is convicted under § 922(g) shall be imprisoned for at least 15 years
and may not receive a suspended sentence or probation.
The government contends that defendant qualifies as an armed career
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criminal because he previously has been convicted of at least three violent
felonies: (1) escape from a prison honor camp, (2) involuntary manslaughter and
use of a firearm during and in relation to a crime of violence, and (3) assault and
battery while armed with a dangerous weapon. Defendant maintains that he does
not have three prior violent felony convictions because his prison escape was
nonviolent and a jury convicted him pursuant to a Wyoming statute that dealt with
nonviolent escape from custody. Agreeing with defendant, the district court ruled
that defendant’s “walkaway” from a prison honor camp did not constitute a
violent felony. Thus, the district court found that defendant did not qualify as an
armed career criminal. We disagree.
The ACCA defines “violent felony,” in pertinent part, as any felony offense
which “involves conduct that presents a serious potential risk of physical injury to
another.” Id. § 924(e)(2)(B)(ii). We have held categorically that “an escape
always constitutes ‘conduct that presents a serious potential risk of physical injury
to another,’ for the purposes of the [ACCA] as well as for the career offender
provisions of the sentencing guidelines.” United States v. Moudy , 132 F.3d 618,
620 (10th Cir.), cert. denied , 118 S. Ct. 1334 (1998); see United States v.
Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997), cert. denied , 118 S. Ct. 726
(1998); United States v. Gosling , 39 F.3d 1140, 1142-43 (10th Cir. 1994). Thus,
under the ACCA and the United States Sentencing Guidelines, escape is always a
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violent crime. It is irrelevant whether the escape actually involved any violence
or whether defendant was convicted under a state statute that defines escape as a
nonviolent offense. Accordingly, we remand this case. On remand, the district
court shall apply the armed career criminal guidelines pursuant to 18 U.S.C.
§ 924(e) when calculating defendant’s sentence.
AFFIRMED IN PART and REVERSED IN PART.
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Nos. 98-8093 & 98-8103, United States v. Springfield
McKAY , Circuit Judge, concurring:
While I join in the result, I reserve judgment as to whether we should treat
as violent for purposes of 18 U.S.C. § 924(e)(2)(B), a felony which the state
creating the felony has defined as non-violent. The record in this case does not
support a finding that Defendant was convicted under the non-violent escape
section of Wyoming state law. Absent such a showing, I agree that we should
reverse the district court’s ruling that § 924(e) did not apply because the record
does show that Defendant was convicted of unauthorized departure from actual
custody. I do not join, however, in our broad dictum stating as “irrelevant”
whether “defendant was convicted under a state statute that defines escape as a
nonviolent offense,” Maj. Op. at 11, when there is no showing of actual violence.
Elsewhere I have reviewed state law that often defines failure to return from work
release or other inmate release program as felony escape. In that brief concurring
opinion, I noted that “there is a quantum difference between the assumptions
about the intrinsic danger of unauthorized departure from actual custody . . . and
of failure to return from authorized departure from actual custody.” United States
v. Adkins , No. 98-3322 (10th Cir. Nov. 12, 1999) (McKay, J., concurring). I do
not believe that under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and
the United States Sentencing Guidelines, escape is necessarily always a violent
crime. I believe we should use more care before sweeping into law a statutory
interpretation which the text does not support.
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