[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 15, 2006
No. 05-12416 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20367-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 15, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Jerry Smith was convicted by a jury for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g).1 Smith appeals his conviction
and sentence, arguing that the district court erred by: (1) denying his motion to
suppress physical evidence allegedly obtained in violation of the Fourth
Amendment; (2) not allowing him to call a state’s attorney as a witness to testify as
to why the state decided not to prosecute him; (3) denying his motions for
judgment of acquittal; and (4) sentencing him as an Armed Career Criminal. For
the reasons that follow, we affirm.
I. Background
At the hearing on Smith’s motion to suppress, testimony reflected that on
January 1, 2004, Officer Alton Martin of the Miami-Dade Police Department drove
through the parking lot of a Motel 7 when a particular car caught his attention
because it was parked directly in front of room 133 and not in an actual parking
space, and it was unoccupied, unlocked and had the windows rolled down. Martin
suspected that the car may have been stolen because, in addition to the manner in
which it was left, it had an altered, or otherwise improper, temporary license tag.
Martin went to room 133 to ascertain if anyone in that room knew the owner
of the vehicle. He knocked and announced. When Smith opened the door, Martin
detected marijuana smoke and observed a woman standing behind Smith.
1
Smith’s indictment also included a forfeiture count, though the government ultimately
dismissed that charge.
2
Martin asked Smith if he knew the owner of the vehicle parked in front of
the room, and Smith stated that it belonged to the woman standing behind him,
who confirmed that the vehicle was hers. Martin asked Smith and the woman for
their names and birth dates. Then, using his hand-held radio, Martin asked his
dispatcher to run a check on the information Smith and the woman had provided.
Martin asked Smith whether he had been smoking marijuana; Smith
admitted to having smoked marijuana and indicated that there was only a small
amount left in the room. Martin then asked if there was anything else in the room
that he should be concerned about, such as weapons, and Smith said no.
Martin’s dispatcher advised him that there was an outstanding warrant for
Smith, and Martin requested backup. Smith did not hear what the dispatcher had
said. As Martin waited for backup to arrive, Smith asked if he could use the
bathroom and put on a pair of pants. Martin allowed Smith to do so, but the officer
entered the motel room and accompanied Smith while he performed both tasks.
When Martin’s partner arrived, Martin requested that Smith come to the
doorway and asked Smith for permission to search the room, which Smith granted.
Martin searched the room, finding some marijuana and, between the mattress and
the box spring of the bed, a firearm. Martin then arrested Smith.
Martin described his conversation with Smith as “conversational” and “not
3
unpleasant.” Martin observed that Smith seemed “a little high” but did not appear
to be impaired in any way. Another police officer determined that Smith had
rented the motel room in which the marijuana and firearm had been found.
Smith filed a motion to suppress, alleging that none of the exceptions to the
warrant requirement applied to Martin’s warrantless search. Smith argued that the
evidence should be suppressed because he did not freely and voluntarily consent.
Specifically, Smith asserted that he did not provide valid consent because: (1) he
had been under the influence of marijuana; (2) Martin did not discuss the details of
the potential search, inform Smith of his right to refuse consent or provide Smith
with a written consent to search form; and (3) Smith was in custody and had not
been provided with Miranda warnings at the time Martin sought his consent.
The magistrate judge recommended that Smith’s motion to suppress be
denied because Smith was competent enough to understand what he was being
asked and to give his consent to the search, despite his use of marijuana. The
district court adopted the magistrate judge’s recommendations, finding that, in
light of the totality of the circumstances, Smith had been competent to consent to
the search and had otherwise provided valid consent.
Smith submitted his witness list for trial, indicating his intent to call an
assistant state’s attorney from the Miami-Dade County State Attorney’s office.
4
The government responded with a motion in limine asking the court to prohibit
Smith from mentioning, either in argument or testimony, that the state charges
arising from the foregoing events had been “no actioned, dismissed, or declined for
prosecution by the Office of the State Attorney.” Smith responded that the state’s
attorney’s screening of the case and the directions given by the state’s attorney to
the officer involved in the case were highly relevant to his defense. He argued that
the quality of the police investigation was a key factor in the jury’s determination
of his guilt and that the state’s attorney’s testimony would be helpful to the jury.
The district court determined that the state’s decision not to prosecute Smith was
not relevant to whether Smith possessed a firearm, that the state’s attorney’s
testimony would be inadmissible hearsay for which there was no exception under
the rules of evidence and that it would confuse and mislead the jury.
At trial, Martin provided testimony consistent with the above facts. In
addition, Favona Boston, the woman who had been with Smith in the motel room,
testified that she had lived with Smith in the room for a week or two and that
during that period she had seen Smith with a firearm. She testified that Smith
would carry the firearm to work and, upon returning home, would place the firearm
under the bed. Boston testified that Martin had been polite and courteous, that he
had not drawn his weapon, and that Smith consented to the search. Boston
5
identified the firearm seized from the motel room as that belonging to Smith.
Smith stipulated to the fact that prior to his indictment in the instant case, he
had been convicted of a felony, and he never applied for nor received a restoration
of his federal firearms privilege. An agent with the Bureau of Alcohol, Tobacco
and Firearms testified that the firearm had traveled in interstate commerce.
Smith moved for a judgment of acquittal at the close of the government’s
case, contending that the government had not proved all elements of the offense,
particularly the element of possession. Smith argued that the government had
proved neither actual nor constructive possession of the firearm. Specifically,
Smith argued that only Boston’s testimony had connected him to the firearm and
that her testimony had been impeached. The court denied Smith’s motion, finding
that there was sufficient evidence to warrant sending the case to the jury. Smith
renewed his motion for judgment of acquittal at the close of all the evidence, and
the court again denied his motion. The jury found Smith guilty.
The presentence investigation report (“PSI”) gave Smith a base offense level
of 24. As Smith qualified as an armed career criminal under 18 U.S.C. § 924(e),
however, his offense level was increased to 33 pursuant to U.S.S.G. § 4B1.4(b)(3).
Smith’s prior convictions include: (1) 1988 convictions for racketeering,
conspiracy to commit racketeering, and conspiracy to traffic in illegal drugs; (2)
6
1993 convictions for possession and sale of cocaine; and (3) 1998 convictions for
second degree murder with a firearm, armed burglary, and robbery using a firearm.
Given his criminal history category of VI and his offense level, Smith’s guideline
range was 235-293 months’ imprisonment. Among other things, Smith objected to
being classified as an armed career criminal and asserted that the PSI did not
identify which convictions were used to determine that § 924(e) applied.
At Smith’s sentencing hearing, the court indicated that the government was
relying on the three prior convictions set forth above to establish the applicability
of § 924(e). Smith did not object to the government’s reliance on the second
degree murder charge but objected to the government’s classification of the 1993
conviction as involving a serious drug offense, arguing that he had received only a
sentence of probation. Smith also objected to the government’s use of the 1988
conviction, as he had been a youthful offender at that time. The district court
found, as a matter of law, that in 1992, the sale or delivery of cocaine in Florida
was a second degree felony, punishable by a term of up to 15 years’ imprisonment
and that, therefore, Smith’s 1993 conviction was for a serious drug offense under
§ 924(e). Accordingly, the court found that Smith’s three convictions qualified
him as an armed career offender and sentenced him to 235 months’ imprisonment.
7
II. Discussion
Motion to Suppress
On appeal, Smith argues that his consent to the search was obtained through
coercion and that, therefore, the district court erred in denying his motion to
suppress. Smith contends that he was in police custody, or the equivalent of police
custody, at the time Martin requested permission to search the motel room. Smith
argues that the fact that he required the officer’s permission to use the restroom and
to put on his pants demonstrates that Smith did not feel free to terminate the
encounter. Smith further contends that during the search, he was placed in
handcuffs2 and made to wait outside of the motel room.
“The denial of a motion to suppress presents a mixed question of law and
fact.” United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). In determining
whether consent to search was voluntary, we defer to the district court’s findings of
fact unless clearly erroneous, and we review the court’s application of law to the
facts de novo. Id.
The Fourth Amendment protects an individual’s reasonable expectation of
privacy in his motel room. See Stoner v. California, 376 U.S. 483, 490 (1964).
Nevertheless, police may conduct a warrantless search of the motel room so long
2
Martin’s testimony at the suppression hearing indicates that Smith was not placed in
handcuffs until after Martin searched the motel room and found the firearm.
8
as the occupant voluntarily consents. United States v. Butler, 102 F.3d 1191, 1197
(11th Cir. 1997). “The question of voluntariness is one of fact to be determined
from the totality of the circumstances, and the trial court’s voluntariness
determination must not be reversed unless clearly erroneous.” United States v.
Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) (quotation and citation
omitted). To determine whether consent was given voluntarily, we consider: (1)
whether the defendant was free to leave; (2) whether coercive police procedures
were employed; (3) the extent of the defendant’s cooperation or awareness of a
right to refuse consent; (4) whether the defendant could refuse to consent; (5) the
extent of the defendant’s education and intelligence; and (6) the defendant’s belief
that no incriminating evidence would be found. Id.
The fact of custody does not necessarily vitiate the defendant’s valid consent
to a search. See United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973).3
Because “[i]n any arrest there is present a degree of duress, . . . [t]he question is
whether the officers used coercive tactics or took unlawful advantage of the arrest
situation to obtain consent.” Id. “[T]he absence of intimidation, threats, abuse
(physical or psychological), or other coercion is a circumstance weighing in favor
of upholding what appears to be a voluntary consent.” Id.
3
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
9
The record indicates that Martin did not attempt to coerce or intimidate
Smith into consenting to the search. On the contrary, Martin and Smith’s
interaction appears to have been polite and cooperative. Nor did Martin
misrepresent the situation to Smith. Moreover, Smith appears to have understood
what was happening; it does not appear that he was impaired during the encounter.
Finally, Smith was not asked to step outside the motel room or to sit in the patrol
car until after he had consented to the search. Thus, in light of the totality of the
circumstances, the district court did not err in denying Smith’s motion to suppress.
State’s Attorney as Witness
Smith next argues that the district erred by prohibiting him from calling a
state’s attorney as a witness because that prevented him from presenting the
defense of his choice. Smith contends that the state’s attorney’s testimony may
have been relevant depending on the reason the state chose not to prosecute him.
We review evidentiary decisions for an abuse of discretion. United States v.
Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005), cert. denied, 126 S.Ct. 1570
(2006) (quotation and citation omitted).
Evidence must be relevant in order to be admissible. Fed. R. Evid. 402.
Moreover, even relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
10
or misleading the jury . . .” Fed. R. Evid. 403.
Here, the district court did not abuse its discretion in determining either that
the state’s attorney’s decision not to prosecute Smith was not, in itself, relevant to
the question of Smith’s guilt for the instant offense or in determining that the
state’s attorney’s testimony would have confused the issues or misled the jury.
Motions for Judgment of Acquittal
Smith argues that the district court erred in denying his motions for
judgment of acquittal because the government failed to establish that he was in
actual possession of a firearm and this court has never held that the conditions for
constructive possession are met when a firearm is found in a motel room, as
opposed to the defendant’s home.
“We review the denial of a motion for judgment of acquittal de novo.”
United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). Likewise, when
such a motion challenges the sufficiency of the evidence, “we review the
sufficiency of the evidence de novo, drawing all reasonable inferences in the
Government’s favor.” Id. (quotation and citation omitted). We will uphold the
district court’s denial so long as “a reasonable fact-finder could conclude that the
evidence established the defendant’s guilt beyond a reasonable doubt.” Id.
(quotation and citation omitted). “Moreover, we are bound by the jury’s credibility
11
determinations, and by its rejection of the inferences raised by the defendant.” Id.
To establish criminal liability under 18 U.S.C. § 922(g)(1), the government
must show: (1) Smith was a convicted felon; (2) Smith knew he was in possession
of a firearm; and (3) the firearm affected or was in interstate commerce. United
States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (citation omitted). “The
firearm need not be on or near the defendant’s person in order to amount to
knowing possession, . . . [and] [p]ossession can be shown by circumstantial as well
as direct evidence.” Id. “In order to establish constructive possession, the
government must produce evidence showing ownership, dominion, or control over
the contraband itself or the premises. . .” United States v. Smith, 591 F.2d 1105,
1107 (5th Cir. 1979) (quotation and citation omitted).
To establish that Smith knowingly possessed the firearm, the government
presented the testimony of both Chiahsin Chen, the owner of the Motel 7, and
Boston. Chen testified that Smith was the registered occupant of the motel room
between October 15, 2003 and January 1, 2004. Boston testified that she lived
with Smith in the motel room for a short period, during which she saw Smith carry
a gun, which he hid under the bed while in the motel room. Boston testified that
the gun she saw Smith carrying matched that which Martin discovered in Smith’s
motel room. Although Smith questions Boston’s credibility, credibility
12
determinations are the exclusive province of the jury. United States v. Calderon,
127 F.3d 1314, 1325 (11th Cir. 1997). In light of the government’s evidence, the
district court did not err in denying Smith’s motion for judgment of acquittal
because the government presented sufficient evidence for a reasonable fact-finder
to conclude that he was guilty of the offense beyond a reasonable doubt.
Sentencing Smith as Armed Career Criminal
Finally, Smith argues that the district court erroneously sentenced him as an
armed career criminal because the government failed to establish that his cocaine
conviction was punishable by a term of at least ten years.4
We review de novo whether a conviction is a serious drug offense within the
meaning of 18 U.S.C. § 924(e). United States v. Wilkerson, 286 F.3d 1324, 1325
(11th Cir. 2002). The Armed Career Criminal Act (“ACCA”) provides that a
person who violates 18 U.S.C. § 922(g) by having three prior convictions for a
“violent felony” or “serious drug offense” shall be imprisoned for not less than 15
years. 18 U.S.C. § 924(e). The ACCA defines a serious drug offense as that
“involving manufacturing, distributing, or possessing with intent to manufacture or
4
To the extent that Smith is arguing that the district court should have submitted his prior
convictions to a jury for determination of whether they qualified him for a sentence enhancement
under ACCA, his argument is meritless. Courts may look to charging documents to make that
determination, and the charging document relating to Smith’s 1993 cocaine convictions indicates
that he committed a serious drug offense. See Taylor v. United States, 495 U.S. 575, 599 (1990)
(providing for courts’ consideration of charging documents, among other things); Shepard v.
United States, 544 U.S. 13, 16, 27 (2005) (same).
13
distribute, a controlled substance . . . for which a maximum term of imprisonment
of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Because Smith did not argue in the district court that the cocaine offenses
did not carry a maximum sentence of 10 years’ imprisonment or more, we review
his argument for plain error, which requires an: “(1) error, (2) that is plain, and (3)
that affects substantial rights . . . [and] (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Shelton,
400 F.3d 1325, 1328-29 (11th Cir. 2005) (quotation and citations omitted).
The charging document relating to Smith’s 1993 cocaine convictions
indicates that Smith was charged with a second degree felony, carrying a
maximum term of 15 years’ imprisonment under Florida law at the time of his
conviction. Accordingly, the district court did not err in classifying the 1993
convictions as involving a serious drug offense.
For the foregoing reasons, the district court is AFFIRMED.
14