United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3778
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Joe Thomas Cowling, Jr., *
*
Appellant. *
___________
Submitted: June 17, 2011
Filed: August 8, 2011
___________
Before BYE and MELLOY, Circuit Judges, and SMITH CAMP,1 District Judge.
___________
SMITH CAMP, District Judge.
A jury found Joe Thomas Cowling, Jr., guilty of two counts of conspiracy to
possess, sell, or dispose of stolen firearms, one count of possessing firearms as a
felon, and one count of possessing a stolen firearm. The district court2 sentenced
Cowling to a total term of sixty-three (63) months imprisonment. Cowling appeals,
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, sitting by designation.
2
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
arguing that his conviction should be reversed because it was based on evidence
obtained pursuant to a constitutionally inadequate search warrant. He also argues that
at trial the district court impermissibly limited cross-examination of government
witnesses and erred in admitting testimony by co-conspirators and evidence of prior
bad acts. Finally, Cowling contends that there was insufficient evidence to sustain
his conviction. We affirm.
I. BACKGROUND
A. Facts
On March 12, 2009, Wayne County, Iowa, Deputy Sheriff Tyler Moore
interviewed a Confidential Informant (“CI”) after discovering an illegal sawed off
shotgun at the CI’s residence (hereinafter “Interview #1”). The CI agreed to provide
Deputy Moore with information about three burglaries. The first burglary took place
on February 15, 2009, at the residence of Steve Keyner; the second burglary took
place on February 27, 2009, at the residence of Robert Boyce; the third burglary took
place on no specific date, at Iowa Select Farms (“ISF”). At both residential
burglaries, the items stolen included firearms, ammunition, and other property. At the
ISF burglary, the items stolen included various fuel tanks and diesel fuel. The CI
denied any involvement in the burglaries, but said he allowed his friends to store
some of the stolen items, including some firearms, at his apartment.
On March 18, 2009, Deputy Moore interviewed the CI a second time, in the
presence of the CI’s attorney (hereinafter “Interview #2”). During Interview #2,
Deputy Moore told the CI that information uncovered by police indicated the
information provided by the CI during Interview #1 was false. The CI again denied
his own involvement in the burglaries, however, he did tell Deputy Moore that he
knew who committed the burglaries and what had been stolen. The CI stated that
Tony Allen, Devin Draper, and Joe Snook committed the Keyner burglary, and the
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Boyce burglary was committed by Allen, Snook, and Jason Bottjen. The CI also told
Deputy Moore that Snook told him it was Cowling’s idea to burglarize the Boyce
residence and that Cowling wanted a .22 Ruger from the Boyce residence in exchange
for coordinating the burglary.
Following Interview #2, Deputy Moore used information the CI provided to
locate a stolen ISF fuel tank on Cowling’s property. Deputy Moore also confirmed
that the firearms described by the CI matched those reported stolen from the Boyce
residence, and that a vehicle registered to Snook’s grandfather and mother matched
the CI’s description of the vehicle Snook drove.
Thereafter, Deputy Moore applied for a search warrant for Cowling’s
residence. As part of the application, Deputy Moore completed an affidavit that
summarized Interview #2, stating that Cowling was in possession of a .22 Ruger from
the Boyce residence and possibly another shotgun. Deputy Moore failed to include
in the affidavit the fact that the CI had provided false information during Interview
#1. County Attorney Alan Wilson signed the warrant application, and checked a box
indicating that the “informant has not given false information in the past.”A Wayne
County Magistrate approved the search warrant application. Subsequently, on March
18, 2009, Deputy Moore and other law enforcement officers executed the warrant,
searched Cowling’s residence, and seized a stockpile3 of firearms.
B. Prior Proceedings
In September 2009, a federal grand jury returned a ten-count indictment against
Cowling and four other individuals. As relevant here, Counts 1 and 6 charged
Cowling with two separate conspiracies to possess stolen firearms, in violation of 18
3
Officers seized a total of seventy-five (75) firearms and approximately 58,000
rounds of ammunition from Cowling’s residence.
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U.S.C. § 371; Count 4 charged Cowling with being a felon in possession of firearms
and ammunition, in violation of 18 U.S.C. § 922(g)(1); and Count 8 charged Cowling
with possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). Cowling filed
a motion to suppress evidence of the firearms seized from his residence during the
execution of the search warrant on March 18, 2009. Following a hearing, the district
court denied the motion.
A jury trial ensued. The government called several witness including the CI
and Snook. Snook testified to stealing a variety of fuel tanks, diesel fuel, and other
farm equipment from ISF. Snook and the CI both testified that Cowling purchased
a stolen ISF fuel tank from them and they had placed the stolen tank in a shed on
Cowling’s property. In addition, Snook and the CI both testified that Cowling
purchased stolen diesel fuel from them for $1 per gallon.
The jury found Cowling guilty of Counts 1, 4, 6, and 8. The district court
sentenced Cowling to sixty-three (63) months imprisonment on Counts 4 and 8 and
sixty (60) months imprisonment on Counts 1 and 6, all counts to be served
concurrently. Cowling filed a timely appeal challenging the district court’s denial of
his motion to suppress, several evidentiary rulings at trial, and the sufficiency of the
evidence supporting his conviction on Counts 1, 4, and 6.
II. DISCUSSION
A. Motion to Suppress
Cowling appeals the district court’s denial of his motion to suppress the
evidence of firearms seized from his residence during the execution of a duly issued
search warrant on March 18, 2009. First, Cowling argues that under Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the evidence must
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be suppressed because the affidavit in support of the warrant contained false and
misleading statements that were material to the magistrate’s determination of
probable cause.4 In support of his argument, Cowling points to the fact that the
warrant application indicated that the “informant has not given false information in
the past” when Deputy Moore knew the CI had provided false information during
Interview #1. Second, Cowling contends that the warrant failed to establish a nexus
between the thing sought (guns) and the place to be searched (Cowling’s residence).
The crux of this argument is that the only thing linking the guns to Cowling’s
residence was a single statement by the CI.
To prevail on a Franks challenge, a defendant must show the following: (1) the
affiant officer knowingly and intentionally, or with reckless disregard for the truth,
included a false or misleading statement in, or omitted information from, the affidavit
in support of the warrant; and (2) “the affidavit would not establish probable cause
if the allegedly false information is ignored or the omitted information is
supplemented.” United States v. Mashek, 606 F.3d 922, 928 (8th Cir. 2010), cert.
denied, 131 S.Ct. 1605 (2011).
The district court found that the warrant application’s representation that the
CI had not given false information in the past was made with reckless disregard for
the truth. Thus, the first element of the Franks inquiry was satisfied. The district
court further found, however, that even including the fact that the CI had given false
information during Interview #1, the affidavit nevertheless established probable cause
to search Cowling’s residence. We review the district court’s probable cause
determination de novo. United States v. Vanover, 630 F.3d 1108, 1113-14 (8th Cir.
2011).
4
It should be noted that a Franks violation cannot be excused under the Leon
good faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897,
914 & n. 12 (1984).
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An affidavit establishes probable cause if it sets forth sufficient facts to
establish that there is a fair probability that contraband or evidence of criminal
activity will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213,
238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A probable cause determination is
based on the totality of the circumstances. United States v. Morales, 923 F.2d 621,
623-24 (8th Cir. 1991). “When information supplied by an informant forms the basis
for probable cause in a warrant, the 'core question in assessing probable cause . . . is
whether the information is reliable.'” United States v. Nieman, 520 F.3d 834, 839-40
(8th Cir. 2008) (quoting United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993)).
In assessing such reliability, this Court considers several factors, such as (1) whether
officers conducted a face-to-face interview with the informant, (2) the level of detail
included in the information provided to law enforcement by the informant, and (3)
whether law enforcement independently corroborated any of the information provided
by the informant. United States v. Robertson, 39 F.3d 891, 893-94 (8th Cir. 1994)
(interviewing an informant face to face “gives greater weight to an officer’s decision
to rely on that information,” and “there is an inherent indicia of reliability in 'the
richness and detail of a first-hand observation.'”) (quoting United States v. Jackson,
898 F.2d 79, 81 (8th Cir. 1990)); United States v. Stropes, 387 F.3d 766, 772-73 (8th
Cir. 2004) (noting corroboration of information is a relevant factor in establishing
probable cause).
We agree with the district court’s conclusion that probable cause to search
Cowling’s residence still would have existed even if the affidavit had included the
fact that the CI had given false information during Interview #1. First, Deputy Moore
interviewed the CI in person on multiple occasions. Second, during his face-to-face
interviews with police, the CI provided detailed descriptions of both the stolen items
and their location. Third, officers corroborated the information provided by the CI
during Interview #2 by using the information to locate a stolen trailer and fuel tank
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on Cowling’s property. Considering the totality of the circumstances, even if the
magistrate judge had known that the CI gave false information in the past, there
would have remained “a fair probability” that Cowling was in possession of stolen
firearms.
Cowling’s argument that evidence seized from his residence should be
suppressed because the warrant application failed to establish a nexus between the
evidence sought and the place to be searched is also without merit. Because the
warrant affidavit established probable cause that Cowling possessed stolen firearms,
it follows that probable cause existed to search Cowling’s residence, because people
“generally keep [firearms] at home or on their persons.” United States v. Steeves, 525
F.2d 33, 38 (8th Cir. 1975); see also United States v. Anderson, 851 F.2d 727 (4th
Cir. 1988) (“[i]t was reasonable for the magistrate to believe that the defendant’s gun
and the silencer would be found in his residence. . . . even though the affidavit
contained no facts that the weapons were located in the defendant's trailer . . . .”).
B. Evidentiary Rulings
Cowling appeals three evidentiary rulings made at his trial: (1) the district
court’s limitation on cross-examination of government witnesses; (2) the district
court’s admission of testimony regarding the ISF burglaries; and (3) the district
court’s admission of testimony regarding his prior bad acts. We address each in turn.
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1. Cross-Examination
Cowling challenges the district court’s decisions to limit his cross-examination
of Deputy Moore.5 He contends that the district court’s decisions on this issue were
erroneous under the rules of evidence and violated his rights under the Confrontation
Clause of the Sixth Amendment. “We review ‘evidentiary rulings regarding the scope
of cross-examination for an abuse of discretion, except where the Sixth Amendment
confrontation clause is implicated, and then our review is de novo.’” United States
v. Cervantes, – F.3d –, 2011 WL 2936364, at * 4 (8th Cir. July 22, 2011) (quoting
United States v. Jewell, 614 F.3d 911, 920 (8th Cir. 2010)).
At trial, in an attempt to impeach Deputy Moore’s prior testimony, Cowling’s
counsel placed transcripts of witness interviews in front of Deputy Moore and began
reading from the transcripts. The government objected because the transcripts were
not in evidence, and counsel then offered the transcripts as evidence. The
government objected on hearsay grounds, and the district court sustained the
objection. The district court explained: “These transcripts can certainly be used to
refresh the deputy’s recollection, but to actually read from the transcripts when
they’re not in evidence I think is improper, and so you’re certainly entitled to use
them to refresh the deputy’s recollection . . . .”
Next, defense counsel showed Deputy Moore transcripts of his prior deposition
testimony in a related state civil matter. Counsel directed Deputy Moore’s attention
to various lines in the deposition, read from those lines, and then asked Deputy Moore
5
In his brief Cowling also challenges the district court’s rulings limiting his
cross-examination of co-defendant Snook, however, the only objection made by the
government during the cross-examination of Snook was in regard to a compound
question. As such, we summarily conclude the district court did not impermissibly
limit Cowling’s opportunity to cross-examine Snook.
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if the deposition transcript refreshed his recollection. The government objected on
the basis that counsel had not established that Deputy Moore needed his recollection
refreshed. The district court sustained the objection and explained: “You can take
this guy with leading questions and you can say, isn’t it true that under oath you have
previously said this? And then if he says, no . . . then you can impeach him with it
. . . but you can’t just read from stuff that’s not in evidence.”
Evidence of prior inconsistent statements is admissible under Rule 613(b) of
the Federal Rules of Evidence, however, “our case law adds a restriction not
explicitly included in Rule 613 itself: Extrinsic evidence of a collateral matter is not
admissible.” United States v. Carter, 410 F.3d 1017, 1022 (8th Cir. 2005). Similarly,
“while the Confrontation Clause generally 'guarantees a defendant’s right to cross-
examine witnesses . . .' the right to cross-examine a witness is not without limitation
. . . .” United States v. Ragland, 555 F.3d 706, 712 (8th Cir. 2009) (quoting United
States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005)). Stated differently, “the
Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88
L.Ed.2d 15 (1985) (per curiam); see also Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (a district court retains significant
discretion in imposing reasonable limits on cross-examination).
In this case, the district court allowed inquiry into the relevant subject matters
during the cross-examination of Deputy Moore. Cowling’s counsel was permitted to
question Deputy Moore regarding his previous interviews with witnesses and
deposition testimony. Also, counsel was permitted to use the transcripts to refresh
Deputy Moore’s recollection. To the extent Deputy Moore’s testimony was contrary
to the statements contained in the transcripts, the district court provided defense
counsel with guidance on how to impeach Deputy Moore with the transcripts.
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Although counsel may not have been permitted to use the transcripts in the way he
wanted, he was provided the opportunity to use the transcripts and that is all that is
required under the Confrontation Clause. Insofar as Cowling relies on the fact that
his counsel was not permitted to impeach Deputy Moore regarding whether he “liked”
Snook, we conclude that whether Deputy Moore “liked” Snook was not pertinent to
“the substantive issues of the trial.” Carter, 410 F.3d at 1023. Accordingly, the
district court’s limitation on the cross-examination of Deputy Moore was neither an
abuse of discretion nor a violation of the Confrontation Clause of the Sixth
Amendment.
2. Co-conspirator Statements
Cowling also challenges the district court’s rulings, admitting testimony about
the Boyce and Keynar burglaries, under Rule 801(d)(2)(E) of the Federal Rules of
Evidence. We review the evidentiary rulings of the district court for abuse of
discretion6 “and will reverse only when an improper evidentiary ruling affects the
substantial rights of the defendant or when we believe that the error has had more
than a slight influence on the verdict.” United States v. Elbert , 561 F.3d 771, 775
(8th Cir.2009) (quoting United States v. Ballew, 40 F.3d 936, 941 (8th Cir. 1994)).
“We will not reverse if the error was harmless.” United States v. Missouri, 535 F.3d
844, 848 (8th Cir.2008).
In order to admit a statement under Rule 801(d)(2)(E), the district court must
“find by a preponderance of the evidence that a conspiracy existed involving the
declarant and the party against whom the statement is offered and that the statements
were made by the declarant in the course of and in furtherance of the conspiracy.”
6
Cowling preserved this evidentiary issue for appellate review by objecting to
the admission of the testimony in limine and at trial.
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United States v. Spotted Elk, 548 F.3d 641, 661 (8th Cir. 2008) (citing Bourjaily v.
United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). In United
States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978), this Court set forth the procedure
appropriate when a party offers testimony that would be hearsay if it did not meet the
requirements of Rule 801(d)(2)(E). “At the conclusion of the evidence, the district
court must then make an explicit finding as to whether the proponent established the
foundational elements . . . .” Spotted Elk, 548 F.3d at 661.
Here, at the close of evidence, the district court made the explicit findings
required by Bell. At that time, the court found that the government had established
that there was a conspiracy. The court then reviewed the foundational elements of
Rule 801(d)(2)(E) and declared that the government had established each of the
required elements. The court also stated, “To the extent that there was testimony
elicited that I felt did not comply or was borderline, I simply sustained the objection
so that the testimony did not come in.”
Cowling argues that because the search of his residence yielded no physical
evidence linking him to the Boyce burglary, there was insufficient evidence to
support the district court’s Bell finding in regard to the Boyce burglary conspiracy.
In addition, Cowling argues that despite the discovery of firearms stolen from the
Keyner residence in his home, there was insufficient evidence to support the district
court’s Bell finding in regard to the Keyner burglary conspiracy. We disagree.
After a full review of the record we conclude that the district court did not
abuse its discretion by admitting testimony concerning the Boyce and Keyner
burglaries under Rule 801(d)(2)(E). At trial, the government presented testimonial
evidence that Cowling told Snook about certain firearms located in the Boyce
residence, including a .22 caliber Ruger. Deputy Moore confirmed that a .22 caliber
pistol was among the firearms stolen from the Boyce residence. On these grounds
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alone, there was sufficient evidence to admit testimony concerning the Boyce
burglary under Rule 801(d)(2)(E). In regard to the Keyner burglary, the search of
Cowling’s residence revealed two guns that independently linked Cowling to the
Keyner burglary. Accordingly, Cowling has not shown an abuse of discretion by the
district court in admitting statements concerning the Keyner burglary under Rule
801(d)(2)(E).
3. Prior Bad Acts
Cowling also challenges the district court’s admission of evidence of the ISF
burglaries under Federal Rule of Evidence 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.
Fed. R. Evid. 404(b).
The rule is one of inclusion, “such that evidence offered for permissible
purposes is presumed admissible absent a contrary determination.” United States v.
Johnson, 439 F.3d 947, 952 (8th Cir. 2006). We review evidentiary rulings of the
district court for abuse of discretion, and will reverse a district court’s decision to
admit evidence under 404(b) only if such evidence “'had no bearing on the case and
was introduced solely to prove the defendant's propensity to commit criminal acts.'”
United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005) (quoting United States
v. Howard, 235 F.3d 366, 372 (8th Cir. 2000). As relevant here, evidence of other
crimes is admissible under Rule 404(b) if it is “(1) relevant to a material issue; (2)
similar in kind and close in time to the crime charged; (3) proven by a preponderance
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of the evidence; and (4) if the potential prejudice does not substantially outweigh its
probative value.” Id.
Cowling argues that the evidence regarding equipment theft from ISF was
irrelevant and the potential unfair prejudice substantially outweighed the probative
value of the evidence. In support, Cowling points to the fact that the government
does not contend that Cowling himself stole the equipment from ISF. Cowling’s
argument is unpersuasive. First, evidence of past crimes can be probative of a
defendant's intent to commit a similar act. See United States v. Turner, 583 F.3d 1062,
1066 (8th Cir.2009), cert. denied, 130 S.Ct. 1928 (2010).
Here, the prior crime and the currently charged crimes both involved a
conspiracy to possess stolen goods. The crimes were similar, and the facts of the
prior crime were probative. Given the probative value of the evidence, it unlikely that
the evidence “'had no bearing on the case and was introduced solely to prove the
defendant's propensity to commit criminal acts.'” Thomas, 398 F.3d at 1062 (quoting
United States v. Howard, 235 F.3d 366, 372 (8th Cir. 2000)). Moreover, the risk of
unfair prejudice was reduced by a cautionary instruction to the jury, given when the
evidence was first admitted. See United States v. Hessman, 493 F.3d 977, 983 (8th
Cir.2007) (limiting instruction minimizes the danger of unfair prejudice to the
defendant). Therefore, the district court did not abuse its discretion in admitting the
challenged evidence.
C. Sufficiency of Evidence
Cowling also contends that the district court erred by submitting Count 1
(conspiracy), Count 6 (conspiracy), and Count 4 (felon in possession) to the jury.
Generally, a claim of insufficient evidence in a criminal case is reviewed de novo, by
examining the evidence in the light most favorable to the verdict. United States v.
Gentry, 555 F.3d 659, 664 (8th Cir. 2009).
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In regard to Counts 1 and 6, Cowling argues that the government failed to
produce sufficient evidence to establish either the existence of or his participation in
a conspiracy. Specifically, Cowling contends that the testimony of co-conspirators
was the only evidence the government presented that linked him to the conspiracies
surrounding the Keyner and Boyce burglaries and, that standing alone, this testimony
was insufficient to support his conviction. Cowling cites Arnott v. United States, 464
U.S. 948, 104 S.Ct. 364, 78 L.Ed 2d 325 (1983), as support for his position.
Cowling’s argument is fatally flawed because the “case” that he cites as support
for his argument is merely the denial of a petition for writ of certiorari. Further, the
portion of the opinion cited to by Cowling is Justice White’s dissent articulating the
evidentiary standard for admitting evidence under Rule 801(d)(2)(E) of the Federal
Rules of Evidence. Arnott, 464 U.S. at 948-49 (citing United State v. Bell, 573 F.2d
1040, 1043-44 (8th Cir. 1978)). Having already discussed this issue, supra at Section
II(B)(2), we find it unnecessary to restate our Bell analysis.
In regard to Count 4, Cowling argues that the government failed to provide
sufficient evidence to prove that he knowingly and intentionally possessed the
firearms seized from his residence, in violation of 18 U.S.C. § 922(g)(1). To obtain
a conviction under 18 U.S.C. § 922(g)(1) the government must “prove beyond a
reasonable doubt (1) [Cowling] previously had been convicted of a crime punishable
by a term of imprisonment exceeding one year, (2) [Cowling] knowingly possessed
a firearm, and (3) the firearm had been in or had affected interstate commerce.”
United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir. 2007). The only issue raised
in this appeal is whether Cowling knowingly possessed a firearm.
The government could prove Cowling “knowingly possessed the firearm if he
had actual or constructive possession of the firearm, and possession of the firearm
could have been sole or joint.” United States v. Walker, 393 F.3d 842, 846-47 (8th Cir.
2005). “Constructive possession of the firearm is established if a person has
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ownership, dominion, or actual control over the firearm itself or has dominion over
the premises where the firearm is located.” United States v. Urick, 431 F.3d 300, 303
(8th Cir. 2005). Mere proximity, however, is insufficient to establish constructive
possession. Id.
Here, the evidence clearly supports Cowling’s conviction for felon in
possession. First, police found a loaded revolver on the kitchen counter next to
Cowling’s keys and cell phone. From this the jury may have reasonably inferred that
Cowling placed the revolver on the counter. In addition, other firearms were found
in a dresser in the master bedroom, in the dining room, and in a hallway next to a
downstairs bathroom. Moreover, when officers seized the guns at issue, Cowling told
them that the guns were his and he would get them back.
III. CONCLUSION
We affirm the district court’s denial of Cowling’s motion to suppress, its
evidentiary rulings at trial, and its decision to submit Counts 1, 4, and 6 to the jury.
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