FILED
NOT FOR PUBLICATION
APR 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10051
Plaintiff - Appellee, D.C. No. 1:12-cr-00293-AWI-
BAM-1
v.
JASWINDER SINGH, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted January 5, 2016
San Francisco, California
Before: WALLACE, KOZINSKI, and O’SCANNLAIN, Circuit Judges.
Jaswinder Singh appeals from his jury conviction of one count of being an
alien in possession of a firearm under 18 U.S.C. § 922(g)(5)(A). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“We review de novo the district court’s denial of the motion to suppress, but
review the underlying findings of fact for clear error.” United States v. Rodgers,
656 F.3d 1023, 1026 (9th Cir. 2011).
At the motion to suppress hearing, the district judge determined that the
federal agents did not have probable cause to conduct a custodial interrogation, but
that during the time period leading up to Singh’s formal arrest, Singh was free to
leave, and thus no de facto arrest or Fourth Amendment violation occurred. Upon
de novo review, based on the informant’s detailed letters regarding Singh’s false
identity and the agents’ corroboration that Singh had a gun in his control, the
agents had probable cause to believe Singh was an alien in constructive possession
of a firearm before he was interviewed. Any evidence obtained during the
interview is therefore admissible.
“An informant’s description of illegal activity is sufficient to establish
probable cause if the totality of the circumstances indicate that the tip is reliable.”
United States v. Elliott, 893 F.2d 220, 223 (9th Cir. 1990). A detailed report
displaying an adequate basis for the informant’s knowledge and the revealed
identity of the informant are indicia of veracity and reliability of information. Id.
The informant, Singh’s ex-girlfriend, sent letters to Immigration and
Customs Enforcement (ICE) identifying Singh as an illegal alien. The responding
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ICE agent then called the informant before approaching Singh at the store. Thus,
based on detailed information provided by a known informant, the officers had
probable cause to believe that Singh was unlawfully in the United States.
The agents also had probable cause to believe that Singh had constructive
possession of a firearm prior to the interview. Constructive possession of a firearm
is established when a person knows of its presence and has the power and intention
to control it. United States v. Nungaray, 697 F.3d 1114, 1117 (9th Cir. 2012). The
informant wrote that Singh had a gun, and the agents corroborated that information
upon entering the store. When asked if there was a gun, Singh responded
affirmatively and reached below the counter. Singh knew of the gun’s presence,
was able to reach it from where he stood, and did so. At that point, the agents had
reasonably trustworthy information to believe that Singh had the power and
intention to control the gun.
Because the agents had probable cause to arrest Singh prior to the interview
that took place in the back room, the district court’s denial of the motion to
suppress was proper. We need not decide whether the interview in fact constituted
a de facto arrest or custodial interrogation. If the agents de facto arrested Singh,
the agents had probable cause to do so.
II.
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We review de novo a district court’s denial of a motion for acquittal based
on insufficiency of the evidence. United States v. Mincoff, 574 F.3d 1186, 1191-92
(9th Cir. 2009). Viewed in a light most favorable to the government, id., the
evidence permits a rational trier of fact to find the elements of possession of a
firearm by an illegal alien.
The informant’s letters were in evidence at trial in addition to her testimony
regarding Singh’s unlawful presence and the existence of a gun. The government
introduced testimony about Singh’s actions and statements in the store to prove
constructive possession of a firearm. Further, the inculpatory statements Singh
made during the back room interview are admissible because the agents had
sufficient probable cause to make an arrest.
III.
We review for abuse of discretion a district court’s denial of a motion for a
new trial. United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011). Singh
contends that the evidence and the equities weighed heavily against the jury verdict
on a constructive possession theory. For the same reasons the district court did not
err in denying the motion for acquittal based on the government’s evidence under
de novo review, we hold the district court did not abuse its discretion in denying
the motion for a new trial.
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AFFIRMED.
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