United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 3, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-30324
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BERNARD ALLEN CHARLES, also known as Bernard Charles,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
________________________________________________________________
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Bernard Allen Charles (“Charles”) was indicted for possession
with intent to distribute more than 50 grams of cocaine base
(“crack”) in violation of 21 U.S.C. § 841(a)(1), possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1), possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §§ 924 (c)(1)(A) and
(c)(1)(B)(ii), and two counts of forfeiture pursuant to 21 U.S.C.
§ 853 and 18 U.S.C. § 924(d)(1). Subsequently, the government
filed a superseding indictment that added additional charges for
possession of an unregistered silencer in violation of 26 U.S.C. §
5861(d) and possession of a silencer without a serial number in
violation of 26 U.S.C. § 5861(i).
Prior to trial, Charles moved to suppress all the physical
evidence discovered at the time of his arrest and subsequently
seized pursuant to a search warrant. This motion was denied and he
was convicted by a jury on all counts. After the trial, Charles
filed a written motion for a judgment of acquittal, which the
district court also denied. Charles was sentenced to 620 months of
imprisonment. On appeal, Charles challenges the denial of both
motions. Because we find no error, we affirm his conviction on all
counts.
I.
On September 15, 2003, Chief Brannon Decou of the Broussard
Police Department received an anonymous tip that Bernard Charles
was storing narcotics in a storage facility on Louisiana Highway
182. The tipster also informed Chief Decou that Charles drove a
white four-door Dodge pick-up truck. Chief Decou contacted the
facility to verify the tip and was given a list of tenants, which
indicated that unit F-19 was leased by Paula Charles. Chief Decou
then confirmed that Paula and Bernard Charles shared the same
address, that Paula Charles was the registered owner of a white
Dodge pick-up, and that Bernard Charles was the subject of several
outstanding warrants, most for traffic offenses, both in Broussard
and in neighboring jurisdictions. With the consent of the storage
facility owner, Chief Decou brought a drug dog to sweep the F
building and the dog alerted on unit F-19, the unit rented to Paula
Charles.
2
Chief Decou did not attempt to obtain an arrest warrant for
Charles. On the morning of September 17, 2003, Chief Decou,
Sergeant Darryl Vernon, and Chief Deputy Timothy Picard began
conducting surveillance on the Charles’s storage unit. Just after
8:00 a.m., the officers saw a white four-door Dodge pick-up enter
the storage facility. Deputy Picard observed through binoculars as
the driver opened the unit, entered it, brought some envelopes back
to the truck, and reentered the unit. At this point, the officers
decided to arrest Charles.
Picard and Vernon approached the unit with their guns drawn.
When they reached the entrance, Charles was standing between the
left wall of the storage unit and the driver’s door of a
convertible parked inside the unit. When the officers identified
themselves, Charles dropped an envelope into the open convertible.
Charles was ordered out of the unit onto the ground, where he was
arrested and cuffed without incident. As Charles was being read
his Miranda rights and escorted to a police cruiser, Picard entered
the unit and checked inside, under, and around the convertible to
ensure that there were not other occupants in the unit. While
inside the unit, Picard noticed that the envelope Charles had
dropped into the convertible, now open on the front seat, contained
a substance he recognized as crack cocaine. He also saw a
partially disassembled firearm on top of a cardboard box in the
corner of the storage unit.
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Once the preliminary sweep was complete, Picard “froze” the
scene and the officers obtained a search warrant based in part upon
Picard’s observations while in the unit. Upon executing the
warrant, officers seized (1) a partially disassembled SWD model M12
.380 caliber semi-automatic pistol, (2) a homemade silencer
threaded to match that weapon, (3) a total quantity of 447.18 grams
of crack cocaine, and (4) approximately $3,000 in currency.
II.
A.
Charles contends on appeal that the district court erred in
denying his motion to suppress the evidence obtained from the
storage unit because, he argues, the initial warrantless entry into
the unit was unconstitutional and the results of that entry led the
officers to seek a search warrant. In reviewing the denial of a
motion to suppress, “the district court’s findings of facts are
reviewed for clear error, viewing the evidence in the light most
favorable to the government.” United States v. Waldrop, 404 F.3d
365, 368 (5th Cir. 2005) (citing United States v. Cantu, 230 F.3d
148, 150 (5th Cir. 2000)). The district court’s conclusions of law
are reviewed de novo. United States v. Lopez-Moreno, 420 F.3d 420,
429 (5th Cir. 2005) (citing United States v. Hicks, 389 F.3d 514,
526 (5th Cir. 2004)). The panel may affirm the district court’s
decision on any basis established by the record. United States v.
Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999) (citing United
States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995)).
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B.
Warrantless searches “are per se unreasonable under the Fourth
Amendment - subject only to a few specifically established and well
delineated exceptions.” United States v. Paige, 136 F.3d 1012,
1022 (5th Cir. 1998) (quoting Minnesota v. Dickerson, 508 U.S. 366,
372 (1993)) (internal quotations and citations omitted in
original). An arrest may be accompanied by a search incident to
that arrest, to prevent the arrestee from accessing a weapon or
destroying evidence. United States v. Green, 324 F.3d 375, 378
(5th Cir. 2003) (citing Chimel v. California, 395 U.S. 752, 763
(1969)). This type of search is limited to the arrestee’s person
and to the area within his immediate control. Id. In some
circumstances, police may also conduct a protective sweep of the
area around an arrest scene, which may be “no more than a cursory
inspection of those spaces where a person may be found” and “may
last[] no longer than is necessary to dispel the reasonable
suspicion of danger” nor “longer than the police are justified in
remaining on the premises.” United States v. Gould, 364 F.3d 578,
587 (5th Cir.) (en banc) (quoting Maryland v. Buie, 494 U.S. 325,
335-36 (1990)) (alteration in original), cert. denied, 543 U.S. 955
(2004). Charles argues that the search performed by Officer Picard
falls under neither of these exceptions. He asserts that because
he was arrested outside of the storage unit, no area inside the
unit was within his immediate control at the time of arrest. He
also maintains that, because the officers on the scene could have
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had no “reasonable suspicion” that any other individuals were
present in the storage unit, a protective sweep was not justified.
Charles fails to recognize, however, that under the Supreme
Court’s holding in Maryland v. Buie, the police may, “as a
precautionary matter and without probable cause or reasonable
suspicion, look in closets or other spaces immediately adjoining
the place of arrest from which an attack could be launched.” 494
U.S. at 334 (emphasis added). Testimony offered at trial indicated
that Charles was arrested just at the entrance to the open storage
unit, which measured approximately 10 feet wide and 25 feet deep.
Officer Picard entered the storage unit to ensure that no other
person was hiding in, under, or around the convertible. Under
Buie, Officer Picard’s cursory sweep of the unit immediately
adjacent to the site of the arrest was permissible, even without
probable cause or reasonable suspicion.1 Because Officer Picard’s
entrance into the storage unit was lawful, the district court did
not err in denying the motion to suppress.2
1
The government argued, and the district court found, that
Picard’s survey of the storage unit was based on his concern that
another individual might be there.
2
We note that although “[t]he seizure of obviously
incriminating evidence found during a protective sweep is
constitutionally permissible pursuant to the plain view doctrine,”
the arresting officers in this case took the additional precaution
of sealing the scene and obtaining a search warrant before removing
any evidence. Waldrop, 404 F.3d at 369 (citing United States v.
Munoz, 150 F.3d 401, 411 (5th Cir. 1998)).
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III.
A.
Charles also argues on appeal that the district court erred in
denying his motion for acquittal. He maintains that the evidence
at trial was insufficient to show that he possessed the firearm
found in the storage unit in furtherance of a drug trafficking
offense as required by 18 U.S.C. § 924(c)(1)(A). Secondly, he
argues -- in a one-sentence footnote -- that because the silencer
was not attached to the firearm when it was found, the jury’s
finding that the firearm was “equipped with a silencer” pursuant to
18 U.S.C. § 924(c)(1)(B) was not supported by the evidence. We
review each issue in turn.
The district court’s denial of a motion for judgment of
acquittal is reviewed de novo. United States v. Delgado, 256 F.3d
264, 273 (5th Cir. 2001) (citing United States v. Myers, 104 F.3d
76, 78 (5th Cir. 1997)). The jury’s verdict will be affirmed if
any rational trier of fact could have found that the evidence
established the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979). In conducting this inquiry, we must examine the evidence
as a whole and construe it in the light most favorable to the
verdict, drawing all reasonable inferences to support the verdict.
Delgado, 256 F.3d at 273-74.
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B.
In deciding whether Charles possessed the gun in furtherance
of his drug trafficking, we first note that the “mere presence” of
a firearm at the scene of drug activity does not alone amount to
possession in furtherance of that activity. Rather, the government
must present “evidence more specific to the criminal defendant,
showing that his or her possession actually furthered the drug
trafficking offense.” United States v. Ceballos-Torres, 218 F.3d
409, 414 (5th Cir. 2000). This court considers a list of factors
in determining whether a firearm is used “in furtherance” of a
drug-trafficking offense: (1) the type of drug activity being
conducted; (2) the accessibility of the firearm; (3) the type of
weapon; (4) whether the weapon is stolen; (5) whether the
possession is lawful; (6) whether the gun is loaded; (7) the
weapon’s proximity to drugs or drug profits; and (8) the time and
circumstances under which the gun is found. Id. at 414-15.
The evidence introduced at Charles’s trial showed that the
weapon discovered in the storage unit was a .380 caliber semi-
automatic “Mack” pistol. Although disassembled, it could have been
made ready for use in short order. The weapon was found in close
proximity to over 400 grams of crack cocaine and a large amount of
currency. The weapon was also located near an unregistered
silencer modified to fit it. Furthermore, as a convicted felon,
Charles was not permitted to possess any firearm for any purpose.
Considering the evidence presented, the jury reasonably could have
8
found that Charles possessed the weapon in furtherance of a drug
trafficking offense.
Charles’s arguments to the contrary are not persuasive. He
advocates at length for the application of the Sixth Circuit rule
in United States v. Mackey, which requires that for a firearm to be
possessed in furtherance of a drug crime, it “must be strategically
located so that it is quickly and easily available for use.” 265
F.3d 457, 462 (6th Cir. 2001). Because the firearm at issue was
found unloaded and partially disassembled, Charles maintains that
it could not have been quickly and easily available for use. Even
if we were to adopt the Mackey rule as binding on this court,
however, the fact that the firearm at issue was not ready for
immediate use does not mean that it was not “quickly and easily
available for use.” The record shows that the semi-automatic
pistol was operable and that a person familiar with the weapon
could have quickly reassembled it for use. Even under his proposed
test, therefore, Charles’s argument fails.
Charles also maintains that the circumstances surrounding the
discovery of the firearm cannot support his conviction because the
firearm was found in a locked storage unit leased to someone other
than Charles (i.e. Paula Charles); furthermore no evidence was
presented that he ever sold drugs out of the storage unit or that
he expected anyone to be present the day the firearm was seized.
Charles notes that most of the drugs were found in the convertible,
which was not registered to him and that none of his prints were
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lifted off the gun or silencer. Although Charles is correct that
the evidence presented at trial did not rule out any theory of
innocence, the evidence is certainly enough that a reasonable trier
of fact could have concluded that the elements of the offense were
established beyond a reasonable doubt. See United States v. Resio-
Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (en banc) (“It is not
necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt.”) (quoting United States v. Bell, 678 F.2d 547, 549
(5th Cir. 1982)), aff’d on other grounds, 462 U.S. 356 (1983). We
have upheld convictions under this statute on the basis of similar
factual scenarios. See Ceballos-Torres, 218 F.3d at 415 (9 mm
Glock handgun found together with 569.8 grams of cocaine and $1,360
in cash in defendant’s bedroom); United States v. Starks, 145 Fed.
Appx. 939, 941 (5th Cir. 2005) (loaded .38 revolver and 200 grams
of cocaine base were found in a locked bedroom to which defendant
had a key) (per curiam) (unpublished opinion); United States v.
Coleman, 145 Fed. Appx. 859, 860 (5th Cir. 2005) (a firearm, drugs,
and two magazines loaded with ammunition were found in defendant’s
dresser) (per curiam) (unpublished opinion). In short, the sum of
the relevant evidence presented at trial, as outlined in the
Ceballos-Torres factors, is sufficient to support the jury’s
finding that Charles possessed the firearm in furtherance of a drug
trafficking crime.
C.
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With respect to the silencer, Charles contends that because it
was not attached to the firearm when it was found, the jury’s
finding that the firearm was “equipped with a silencer” pursuant to
18 U.S.C. § 924(c)(1)(B)(ii) is not supported by the evidence.
Charles raises this argument in a one-sentence footnote and
provides no authority for the proposition. Inadequately briefed
issues are deemed abandoned. Dardar v. LaFourche Realty Co., 985
F.2d 824, 831 (5th Cir. 1993) (citing Friou v. Phillips Petroleum
Co., 948 F.2d 972, 974 (5th Cir. 1991)); Harris v. Plastics Mfg.
Co., 617 F.2d 438, 440 (5th Cir. 1980). A single conclusory
sentence in a footnote is insufficient to raise an issue for
review. See Beazley v. Johnson, 242 F.3d 248, 270 (5th Cir. 2001).
However, we do note that the record shows that the unregistered
silencer was found in close proximity to the firearm for which it
was specially threaded. Thus, the evidence appears sufficient to
support the jury’s finding that the firearm was equipped with the
silencer.
IV.
For all of the foregoing reasons, the district court’s denial
of the motion to suppress and its denial of the motion for
acquittal are
AFFIRMED.
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