United States v. Jerry Smith

[DO NOT PUBLISH]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.

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 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

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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.

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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

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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)

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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.

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 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.

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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.

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 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,

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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

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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

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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).

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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.

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