United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 5, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 02-60029
Summary Calendar
_____________________
United States of America,
Plaintiff - Appellee,
versus
Robert Payne,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi, Oxford
District Court No. 3:00-CR-145-ALL-D
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PER CURIAM.
Robert Payne appeals his jury conviction for the following
offenses: 1) possession with intent to distribute in excess of 50
grams of a mixture and substance containing cocaine base; 2)
possession of a firearm in furtherance of drug trafficking; 3)
possession of a firearm after having been convicted of a felony;
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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and 4) possession of an illegal firearm. The charges against
Payne arose from a police stop of his vehicle on October 11,
2001, and the subsequent searches of his car and the trailer of
his girlfriend, Rolanda Jeffries.
Constitutionality of the Trailer Search
In his first issue, Payne argues the district court abused
its discretion by denying his motions to suppress evidence seized
from Jeffries’ trailer. Payne maintains his privacy rights were
violated by the search of the trailer, and therefore any evidence
seized in the search should have been suppressed. He argues that
as an overnight guest he had a privacy right in the trailer. The
district court determined Payne did have a privacy right, but
denied Payne’s motion because it found Payne voluntarily
consented to the search. To the extent Payne complains about the
search on those grounds, this Court will examine the district
court’s finding that Payne voluntarily consented to the search
rather than revisit the privacy right issue.
This Court accepts a district court’s ruling on a motion to
suppress based on live testimony, unless the district court’s
findings of fact are clearly erroneous or influenced by an
incorrect view of the law. See United States v. Randall, 887
F.2d 1262, 1265 (5th Cir. 1989). The denial of a motion to
suppress is reviewed in the light most favorable to the party
prevailing below. See United States v. Foy, 28 F.3d 464, 474
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(5th Cir. 1994). If the record below supports more than one
permissible interpretation of the facts, the reviewing court will
accept the district court’s choice between them, absent clear
error. See United States v. Posada-Rios, 158 F.3d 832, 868 (5th
Cir. 1998).
Because the district court indicated that Jeffries’ Fourth
Amendment rights were likely violated by the search of the
trailer, Payne argues that his Fourth Amendment rights were
likewise violated by the trailer search.
This Court has held that “[w]here consent is preceded by a
Fourth Amendment violation the government has a heavier burden of
proving consent.” United States v. Kelley, 981 F.2d 1464, 1470
(5th Cir. 1993). The government must show consent was both
voluntary and independent of any violation “to such a degree as
to cause a break in the chain of events sufficient to refute the
inference that the evidence was a product of the constitutional
violation.” United States v. Vega, 221 F.3d 789, 801 (5th Cir.
2000). To determine whether there has been a sufficient break in
the chain of events, this Court examines the following factors:
1) the temporal proximity of the illegal conduct and the consent;
2) the presence of intervening circumstances; and 3) the purpose
and flagrancy of the initial misconduct. See id.
The voluntariness of consent is determined by considering
the totality of all the circumstances at the time of consent.
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Kelley, 981 F.2d at 1470. The government must prove
voluntariness by a preponderance of the evidence. United States
v. Jones, 234 F.3d 234, 242 (5th Cir. 2000). This Court set
forth the following factors to aid in that consideration: 1) the
voluntariness of the defendant’s custodial status; 2) the
presence of coercive police procedures; 3) the extent and level
of the defendant’s cooperation with the officers; 4) the
defendant’s awareness of his right to refuse consent; 5) the
defendant’s education and intelligence; and 6) the defendant’s
belief that no incriminating evidence will be found. Id. No
single factor is dispositive. Id.
Although Payne argues that the violation of Jeffries’ Fourth
Amendment rights tainted the search as to him, Payne’s consent
was independent of the purported violation. Special Agents Jim
Holland and Phillip Robertson of the Drug Enforcement Agency
testified that Payne was not present when they arrived at the
trailer. The agents testified that they announced themselves
when they arrived, spoke to Payne’s girlfriend through the closed
trailer door, and then heard a toilet flushing. The agents
testified that they then broke into the trailer because they
thought Jeffries might be flushing contraband down the toilet.
Payne arrived at the trailer approximately one hour after the
officers entered. The agents testified that Payne told them he
wanted to cooperate with them, led them to the trailer,
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encouraged Jeffries to consent to the search, and told the agents
where the guns and a scale were hidden. Not only was there a
significant time lapse between the purported violation of
Jeffries’ Fourth Amendment rights and Payne’s arrival, but
Payne’s arrival served as an intervening circumstance in the
chain of events that led to the discovery of the evidence Payne
sought to suppress. Any impropriety in the officers’ initial
actions was too attenuated from Payne’s consent to taint any
subsequent search of the trailer. As a result, the district
court correctly found that Payne’s consent was independent of any
earlier violation of Jeffries’ Fourth Amendment rights.
Likewise, the district court correctly found that Payne
voluntarily consented to the search of the trailer. Although
Payne’s account of the events surrounding the search differed
from that of the officers, the district court did not err by
relying on the officers’ account of the events. See Posada-Rios,
158 F.3d at 868. Payne’s high school education indicates he was
able to understand his right to refuse consent. His instructions
about the gun and scale show that he knew where the contraband
could be found. Considering the evidence in the light most
favorable to the government as the prevailing party on the motion
to suppress, this Court finds the district court did not err.
Constitutionality of the Vehicle Search
In his second issue, Payne argues the district court erred
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in denying his motion to suppress evidence obtained from the
search of the car he was driving. Payne maintains his Fourth
Amendment rights were violated because there was no probable
cause to stop him or to search the car. Again, this Court
accepts a district court’s rulings on a motion to suppress
evidence based on live testimony, absent clear error. See
Randall, 887 F.2d at 1265.
Police officers may search a vehicle without a warrant if
they have probable cause to believe the vehicle contains
contraband or evidence of a crime. United States v. Buchner, 7
F.3d 1149, 1154 (5th Cir. 1993). Probable cause exists when the
facts and circumstances known by the arresting officers “are
sufficient in themselves to warrant a man of reasonable caution
in the belief that the person to be arrested has committed or is
committing an offense.” United States v. Mendez, 27 F.3d 126,
129 (5th Cir. 1994). A probable cause determination is based on
the totality of the circumstances, viewed in light of the
observations, knowledge, and training of the officers involved in
the search. Buchner, 7 F.3d at 1154.
In the instant case the government presented ample evidence
that Agent Holland had probable cause to stop and search the car
Payne was driving. Agent Holland testified that when he stopped
the car he knew Payne was the subject of an active warrant in an
Illinois criminal case. Holland testified that a confidential
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source told him Payne had sold cocaine to the confidential source
in the past. Holland had also listened to a tape-recorded
conversation in which Payne agreed to sell cocaine to the
confidential source. Holland testified he saw Payne accelerate
rapidly when followed by an unmarked car. Holland also testified
he watched Payne attempt to quickly reverse while reaching under
his seat when confronted by marked police cars. Officer McMillin
confirmed Holland’s observations of Payne’s actions while driving
the car.
Finding no violation in the stop and search of Payne’s car,
this Court upholds the district court’s denial of Payne’s motion.
Constitutionality of the Arrest Warrant
Although Payne framed his third issue2 in terms of the
constitutionality of the arrest warrant, he focuses his argument
on his contention that the district court erred in failing to
hold an evidentiary hearing on his second motion to suppress
evidence seized from the car and the trailer. Specifically,
Payne contends he was entitled to a second evidentiary hearing
because the facts were not fully developed in the first hearing.
This failure was due, he claims, to poor performance by his first
2
Payne argues the warrant for his arrest and the searches
was obtained after they had taken place. The warrant was
actually only for Payne’s arrest, and made no mention of a
search. The district court found no violation in warrant
procedures because it found neither search was predicated on a
search warrant: the search of the car was based on probable cause
and the search of the trailer was based on Payne’s consent.
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lawyer.
Under Rule 12(d) of the Federal Rules of Criminal Procedure,
the district court had discretion to defer ruling on a motion to
suppress until trial. See United States v. Kirk, 528 F.2d 1057,
1064 (5th Cir. 1976). This Court reviews a decision not to hold
an evidentiary hearing for abuse of discretion. See id.
In the instant case, the district court held a full
evidentiary hearing on Payne’s first motion to suppress evidence.
The district court denied the motion as to the search of the car,
but held the motion in abeyance as to the search of the trailer.
No new evidence was discovered between that hearing and Payne’s
second motion. The only change was the replacement of Payne’s
first attorney. Because Payne’s second motion reiterated the
arguments made in his first motion, the district court decided
not to hold a second pre-trial evidentiary hearing. The district
court did, however, hold a second suppression hearing on the
trailer search during trial, but outside of the jury’s presence.
This hearing covered much the same ground as the pre-trial
hearing. The district court decided not to suppress evidence
from the trailer search. Because the actions of the district
court reveal a careful consideration of Payne’s motions, this
Court finds no abuse of discretion in the district court’s
decision not to hold two evidentiary hearings on the same issue
with the same evidence.
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Sufficiency of the Evidence
In his fourth issue, Payne argues there was insufficient
evidence to convict him of being a felon in possession of a
firearm that had traveled in interstate commerce, in violation of
18 U.S.C. § 922(g)(1). Specifically, Payne complains that the
charge lacked what he argues were the necessary requirements of
intent and “foreign commerce.”
A defendant is guilty under 18 U.S.C. 922(g)(1) if he is a
convicted felon in possession of a firearm, and that firearm
previously traveled in, or affected interstate commerce. United
States v. Cavazos, 288 F.3d 706, 712 (5th Cir. 2002). A
violation may be proven even if the defendant possessed the
firearm entirely intrastate. United States v. Gresham, 118 F.3d
258, 265 (5th Cir. 1997). This Court has repeatedly confirmed
the constitutionality of 18 U.S.C. 922(g)(1). See id. at 264.
Proof of an interstate nexus can be based upon expert testimony
by a law enforcement officer that the firearm was manufactured in
a different state. United States v. Privett, 68 F.3d 101, 104
(5th Cir. 1995). The statute requires neither intent on the part
of the defendant nor a showing of “foreign commerce.” See
Gresham, 118 F.3d at 265.
In Payne’s trial, abundant evidence was presented that Payne
violated the statute. Court records showed that Payne was a
convicted felon. Agent Holland and Officer McMillin testified
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that the vehicle Payne was driving contained a firearm. Agent
Holland also testified that the trailer where Payne sometimes
spent the night contained three firearms that Payne said belonged
to him. Richard Vasquez, an agent with the with the Bureau of
Alcohol, Tobacco and Firearms and an expert on gun
manufacturing3, testified that each of the weapons listed in the
indictment against Payne was manufactured outside of Mississippi.
This Court finds the jury was presented with sufficient evidence
to find that Payne violated 18 U.S.C. § 922(g)(1) and therefore
upholds Payne’s conviction on that count.
Payne’s Complaints about the Prosecutor’s Remarks
In his fifth issue, Payne argues that certain statements
made by the prosecutor during the suppression hearing and at
trial were improper and prejudicial. Because Payne did not
object to these remarks at the time they were made, this Court
will consider first whether they were improper, and second,
whether they amounted to plain error. See United States v.
Washington, 44 F.3d 1271, 1278 (5th Cir. 1995); FED. R. CRIM. P.
52(b).
In his closing argument, a prosecutor is allowed to argue
the conclusions he thinks the jury should draw from the evidence,
but he may not express his personal opinion on guilt or innocence
3
The district court accepted Vasquez as an expert on gun
manufacturing without objection from Payne.
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or the credibility of any of the witnesses. United States v.
Binker, 795 F.2d 1218, 1224 (5th Cir. 1986). Even if a
prosecutor oversteps these boundaries, the conviction will stand
unless the prosecutor’s statements “prejudicially affected
substantial rights of the defendant.” Id. To assess the degree
of prejudice this Court considers: 1) the magnitude of the
prejudicial effect; 2) the efficacy of the caution; and 3) the
strength of the evidence against the defendant. Id.
During the suppression hearing, which was held outside the
jury’s presence, the prosecutor argued that the motion to
suppress should be denied because agents had testified that Payne
brought them to the trailer. Payne argues this statement was
improper because the prosecutor did not state that Payne was
under arrest at the time or that Jeffries was under duress. In
making the statement the prosecutor referred only to the
testimony of the agents; he neither advocated a personal opinion
nor referred to anything outside the record. Therefore, this
Court finds nothing improper in this statement. See United
States v. Chase, 838 F.2d at 750.
Payne also argues that the following statement made by the
prosecutor to the jury at trial was improper: “this is what’s
poisoning the children of America and these are the tools of the
drug trade.” The prosecutor was apparently referring to the cell
phone, scale, and guns confiscated from Payne. This remark may
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have been improper because there was no testimony that these
objects were tools of the drug trade, but any impropriety fell
short of plain error. First, this statement was not highly
prejudicial. Second, the government had presented a strong case
against Payne that included testimony from a confidential source,
several police officers and D.E.A. agents, as well as confiscated
guns and cocaine. Third, the district court instructed the jury
at the beginning and end of trial that statements by the
attorneys were not evidence. Therefore this Court finds this
statement by the prosecutor did not constitute plain error. See
Washington, 44 F.3d at 1278.
Payne additionally argues that the prosecutor made an
improper remark during his closing when he said that Payne was
driving ninety miles per hour on a gravel road. In light of
witness testimony that Payne was driving at that speed, the
prosecutor was entitled to include the statement in his closing.
This Court finds this statement neither referred to anything
outside the record nor advanced the prosecutor’s personal opinion
and therefore was not error. See Chase, 838 F.2d at 750.
Payne’s Ineffective Assistance Claim
In his final issue, Payne argues that his Sixth Amendment
right to counsel was violated by both of his trial attorneys. In
support of his argument, Payne alleges his first attorney was
late to the suppression hearing and failed to properly
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investigate the case and to rebut government witnesses. Payne
also contends his second attorney failed to properly object to
the district court’s statements about the searches, and failed to
rebut government witnesses.
Ordinarily this Court will not consider a claim of
ineffective assistance of counsel on direct appeal. United States
v. Higdon, 832 F.2d 312, 313-314 (5th Cir. 1987). An exception
is made if the record below allows for a fair evaluation of the
merits of the claim. Id.; Massaro v. United States, 123 S.Ct.
1690, 1696 (2003)(reserving this exception for situations of
“apparent” or “obvious” shortcomings of counsel). The instant
case does not fit into this exception because the record does not
provide information on the attorneys’ trial strategies, the
motivations behind their trial tactics, or the extent of their
investigations. As a result, this Court will not consider
Payne’s claim of ineffective assistance of counsel in this
appeal. This Court therefore AFFIRMS the district court’s
judgment.
AFFIRMED
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