NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0476n.06
No. 09-5245
FILED
UNITED STATES COURT OF APPEALS Aug 04, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
ROY BURCHAM,
Defendant-Appellant.
Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Defendant-appellant Roy Burcham was convicted
of possession of stolen firearms, pursuant to 18 U.S.C. § 922(j), and of being a felon in possession
of those firearms, pursuant to 18 U.S.C. § 922(g). How the authorities came into possession of those
firearms is the primary subject of Burcham’s appeal. He also appeals an evidentiary ruling that, he
claims, prevented him from impeaching one of the government’s witnesses. We affirm.
I.
On January 19, 2002, Officers A.C. Brown and James Kellum, both of the Memphis,
Tennessee Police Department, were on patrol when they received word that other officers were
searching for Burcham as a suspect in an aggravated assault involving a baseball bat. Officers
Brown and Kellum had previously heard from a confidential informant that Burcham had stolen
some firearms and still was in possession of those firearms. They proceeded to the area where they
believed Burcham might be found. Sure enough, the officers found Burcham sitting in his truck at
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a gas station. A woman, later identified as Jennifer Kinsella, Burcham’s girlfriend, was with him
in the truck.
The officers detained Burcham and found a baseball bat in the cab of the truck, so they
arrested him on the aggravated assault charge. Other officers transported Burcham to jail. Officers
Brown and Kellum remained on the scene with Kinsella and questioned her about the stolen firearms
that they had previously heard about. What happened next is disputed and will be discussed in more
detail below. But, at the end of these disputed events, the officers found themselves in a storage unit
rented by Burcham, where they discovered several firearms that they subsequently determined to
have been stolen. After unsuccessfully seeking to suppress the firearms as a product of an
impermissible search, Burcham proceeded to trial. The jury convicted Burcham on all counts, and
he was eventually sentenced to ninety-two months’ incarceration followed by two years of
supervised release.
Burcham now timely appeals the district court’s denial of his motion to suppress the firearms,
as well as one of the court’s evidentiary rulings during trial.
II.
A. Motion to Suppress
The circumstances surrounding how the officers gained access to the storage unit were
disputed. Officers Brown testified at the hearing on the motion to suppress, as did Burcham and
Kinsella. The prosecutor also proffered the testimony of Officer Kellum. The versions of events
offered by the two camps differed drastically.
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Officers Brown and Kellum testified that they had heard from an informant that Burcham had
stolen some firearms and was keeping them at a storage unit. Officer Kellum even indicated that he
knew from the informant where the storage unit was located. The officers claimed that they asked
Kinsella if she knew anything about the firearms and the storage unit. They testified that Kinsella
responded in the affirmative and indicated that she had access to the unit, including the access code
for the facility’s gate and the key to the lock on the individual storage unit. She signed a handwritten
statement indicating that Burcham told her that he had purchased some firearms that had been stolen
from a hunting lodge by another man, that he had then re-sold the firearms to his brother, and that
the firearms were in a mini-storage unit at 5570 Summer Avenue. She also signed a consent form
indicating that she was aware of her right to refuse consent to search the storage unit and that her
permission to search the unit was given voluntarily and absent any threats or promises. The officers
testified that Kinsella thereafter accompanied them to the storage unit and provided the access code
and key. They described her as having been cooperative the entire time. The officers also indicated
that the manager of the facility initially said that the officers needed a warrant, but he backed off
when he learned that Kinsella had the access code and the key.
Kinsella and Burcham testified to a vastly different chain of events. Primarily, they testified
that Kinsella did not know the access code for the storage facility and did not have the key to the
lock on the storage unit. Instead, Burcham claimed that he kept a key to the lock on his key ring and
kept the access code written on a piece of paper in his wallet and that the officers must have taken
these items from his truck after he was taken to jail. They testified that Kinsella did not have
authority to consent to a search of the storage unit and that her consent was coerced by the officers.
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Following the hearing on the suppression motion, the magistrate judge issued a Report and
Recommendation rejecting Kinsella’s and Burcham’s testimony and crediting that of the officers
and, on that factual basis, concluding that the motion should be denied. Burcham objected to both
the magistrate judge’s credibility determination and his legal conclusion. The district court thereafter
issued an order adopting the magistrate’s recommendation in whole, finding that the magistrate’s
conclusion was not clearly erroneous.
Following trial, Burcham appealed the suppression ruling on several bases, one of which
being that the district court employed the wrong standard of review in ruling upon Burcham’s
objections to the magistrate’s Report and Recommendation. The government conceded that the
court had improperly employed the “clearly erroneous” standard of review instead of engaging in
a de novo review of the contested portions of the magistrate’s report as required by 28 U.S.C. §
636(b). We therefore remanded the case to the district court with instructions to engage in a de novo
review of the portions of the magistrate’s findings to which Burcham objected. On remand, the court
issued a second order adopting the magistrate’s findings and therefore denying the motion to
suppress. On this second appeal, Burcham contends that the district court again failed to engage in
a de novo review of the magistrate’s credibility determination and that the court incorrectly analyzed
the issue of Kinsella’s authority to consent to the search.
1. De Novo Review of Credibility Determination
The magistrate found the testimony of Officers Brown and Kellum credible and the testimony
of Burcham and Kinsella incredible and thus accepted the officers’ version of events as the factual
basis for ruling upon the motion to suppress. Burcham objected to this credibility finding. In ruling
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upon Burcham’s objection, the court was “both statutorily and constitutionally required” to engage
in a de novo review. United States v. Worley, 193 F.3d 380, 383 n.6 (6th Cir. 1999) (internal
quotation marks omitted).
Burcham claims that the court failed in this task when it issued its order on remand adopting
the magistrate’s credibility determination. Burcham focuses on the court’s statement that “[t]here
is no basis for finding the testimony of the officers incredible as a matter of law and the Court finds
that it is not so,” (Order of Feb. 19, 2009, at 5), as evidence that the court did not engage in a de novo
review. Burcham argues that the court’s “not incredible as a matter of law” formulation is just
another way of saying “not clearly erroneous,” which we acknowledged was incorrect when we
remanded the case the first time.
Though we acknowledge that finding testimony “not incredible as a matter of law” is a
somewhat strange choice of diction, we do not agree that it evidences the employment of something
other than de novo review. First, we explicitly instructed the court that it must engage in a de novo
review. On remand, the court repeatedly recognized that it had erred in its first order and that it must
engage in a de novo review. Indeed, in the sentence immediately preceding the sentence on which
Burcham focuses, the court stated “[a]fter reviewing de novo the pleadings, the evidence presented
at the suppression hearing, and the report and recommendation, the Court agrees with the findings
and conclusions of the magistrate judge.” (Id.) We ordinarily accept as given that the district courts
do that which we expressly directed them to do, see Westside Mothers v. Olszewski, 454 F.3d 532,
539 (6th Cir. 2006) (discussing the mandate rule), and which they have expressly indicated that they
have done.
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Second, the entirety of the court’s discussion of the differing testimony at the suppression
hearing indicates that it was engaging in its own determination of the parties’ credibility. For
example, the court observed that Kinsella denied giving the officers the access code or the key
because she possessed neither, but that the officers nevertheless took her with them to the unit.
(Order of Feb. 19, 2009, at 3.) The obvious inference from this observation is that the officers would
not need to take Kinsella with them if they already had the code and the key. Similarly, the court
observed that Kinsella denied having heard from Burcham that the guns were stolen but had
nevertheless signed a handwritten statement indicating just that. (Id. at 4.) These are the sorts of
observations and expressions of skepticism indicative of a de novo credibility determination. We
are therefore comfortable that the court employed the appropriate standard of review in ruling upon
Burcham’s objections to the magistrate’s report, and we will proceed on the basis that the officers’
version of events is the operative factual predicate.
2. Kinsella’s Authority to Consent to Search
Burcham next argues that, even if the officers’ version is credited, the search of the storage
unit was still impermissible because Kinsella was not listed as an authorized user on the unit’s lease
agreement and did not have authority from Burcham to enter the unit or allow others to enter.
Whether Burcham is correct turns on the concept of apparent authority.
Police may obtain consent to search a location from anyone having “common authority over or other
sufficient relationship to the premises”; the defendant himself need not have given consent. United
States v. McCauley, 548 F.3d 440, 446 (6th Cir. 2008) (citations omitted). Further, actual authority
is not required. The consent of someone possessing apparent authority will render a search
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permissible. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). Apparent authority exists “if the facts
available to the officer at the moment warrant . . . a man of reasonable caution in the belief that the
consenting party had authority over the premises.” Id. (internal quotation marks omitted) (ellipsis
in original).
Under this formulation of apparent authority, we do not have any trouble finding that the
officers reasonably believed Kinsella to have authority to consent to a search of the storage unit.
According to the officers’ testimony, Kinsella, Burcham’s girlfriend, was cooperative and provided
them the access code and the key to the unit. Given the nature of storage units, it is reasonable to
assume that someone close to the defendant with both the access code and key to the unit has
authority to enter the unit and to allow others to do so. Confirming this, the facility’s manager went
from requesting a warrant to allowing unimpeded entry when he learned that Kinsella had the code
and key, a reaction that implies the general understanding that possession of the code and key to a
storage unit are strong indicators of access and authority. Finally, Kinsella willingly signed a
consent-to-search form, and it would be odd for someone to grant consent to search a place over
which she had no authority. We therefore agree with the district court that the officers reasonably
believed that Kinsella had authority to consent to search the storage unit, and thus we affirm the
denial of the motion to suppress.
B. Evidentiary Ruling
The government’s general theory at trial was that two men had stolen firearms from a hunting
lodge and then sold the stolen weapons to Burcham, who then sold them to his brother. One of the
original thieves was a man named Bedford Watson. Watson had already pled guilty to charges
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relating to the stolen firearms. He cooperated with the government and testified against Burcham
in hopes of receiving favorable treatment in the form of a motion from the government seeking a
reduction in Watson’s sentence. Watson’s status as a cooperating witness and his hope for the
government’s benevolence was disclosed during his direct examination by the government. And it
was discussed at length during his cross-examination by Burcham’s attorney, especially with regard
to how it might motivate Watson to lie regarding Burcham to appease the government.
During Watson’s testimony on direct examination, it was disclosed that Watson had made
a false statement to prison officials regarding a fight that had occurred in prison. This disclosure was
made pursuant to the requirement of Giglio v. United States, 405 U.S. 150 (1972), that prosecutors
communicate impeachment information regarding its witnesses to the defense. Watson initially had
denied involvement in the fight, but he later admitted that he was involved. In response to a leading
question by the prosecutor regarding the cause of the fight, Watson confirmed that the fight was due
to a card game. Burcham’s attorney never cross-examined Watson regarding the cause of the fight.
During Burcham’s defense case, his attorney indicated his intention to call a witness who
would testify that the cause of the fight was not a card game, but rather was Watson’s cooperation
with the government against Burcham. Burcham sought to introduce this evidence to impeach
Watson’s credibility. The government objected to Burcham calling this witness, and the court sided
with the government. The court initially rested its decision to exclude the witness as being an
attempt to introduce extrinsic evidence to attack a witness’ character for truthfulness, which is
prohibited under Federal Rule of Evidence 608(b). The court later revised its reasoning for
excluding the witness to rest on grounds of relevance and cumulativeness. Burcham claims that the
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district court’s exclusion of this evidence was reversible error.
We review a district court’s evidentiary ruling for abuse of discretion. United States v.
Jenkins, 593 F.3d 480, 484 (6th Cir. 2010) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
(1997)). Though it is clear why Burcham sought to introduce this additional evidence—to discredit
Watson’s damaging testimony—it is less clear how, i.e. under what rule of evidence, Burcham
planned to introduce the evidence. Regardless, there had already been voluminous evidence
regarding Watson’s less-than-stellar credibility and his incentive to testify to the government’s
liking. Thus, we cannot say that the court's conclusion that additional attack on Watson’s credibility
would be cumulative was an abuse of discretion. We therefore find no error.
III.
For the reasons set forth above, we AFFIRM.