[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14287 FEBRUARY 24, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00026-CR-J-20-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BENJAMIN JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 24, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Anthony Benjamin Johnson appeals his convictions for drug- and firearm-
related offenses. After a thorough review of the record, we affirm.
I. Background
Johnson was charged by superceding indictment with possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 1);
possession with intent to distribute five grams or more of crack cocaine, in
violation of 21 U.S.C. § 841 (Count 2); possession with intent to distribute and
manufacture crack, in violation of 21 U.S.C. § 841 (Count 3); possession with
intent to distribute marijuana, in violation of 21 U.S.C. § 841 (Count 4); and
possession of a firearm in furtherance of a drug-trafficking offense, in violation of
18 U.S.C. § 924(c) (Count 5).
Prior to trial, Johnson filed a motion to suppress, challenging the validity
and truthfulness of the affidavit supporting the search warrant and disputing
whether the warrant had been signed by a magistrate judge.1 In the warrant, the
police officer affirmed that police used a confidential informant (“CI”) to conduct a
controlled buy of drugs within the last ten days. The CI was able to purchase crack
and informed police that there was more crack inside.
At the hearing on the motion to suppress, Detective Darren Green testified
that he had personally observed the facts presented in the affidavit. He stated that
1
On appeal, Johnson challenges only the magistrate judge’s conclusion that the affiant
provided truthful information in the warrant. He does not raise the issue of whether the warrant was
signed properly. Therefore, he abandoned this argument. United States v. Smith, 416 F.3d 1350,
1354 (11th Cir. 2005).
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he accompanied the CI to the residence, searched the CI by pat-down search and by
checking the CI’s pockets before sending him to conduct the buy, and watched the
CI enter the rear porch area of the house. Green was able to observe the CI from
an outside area near the rear of the house. The porch area was connected to the
house and Green considered it to be part of the residence. Green was not able to
see the CI when he entered the main part of the house. The CI remained inside for
about two or three minutes and then returned to Green with crack cocaine that the
CI bought from someone named “Black.” The CI told Green that there was
additional crack inside the porch area. Green acknowledged that his notes from the
buy did not indicate that there were additional drugs in the house, although he
included those facts in the warrant affidavit.
Johnson testified that he had lived at the residence, which his mother owned,
on and off for the last ten years. He admitted that he had used and sold drugs in the
past, but argued that he was not involved with drugs any more. He explained that,
for the two months preceding the search, the front door was broken and could not
be used, and the only entry into the house was through the back door. According
to Johnson, the back door was boxed off in brick and was only accessible through
the back yard, which was fenced and contained numerous dogs. He asserted that it
was not possible for Green to have seen the CI enter at the back door from Green’s
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alleged location, and although he admitted that it would be possible to observe
someone on the back porch, he disputed that the porch was “inside” the residence.
Johnson admitted that he had successfully challenged searches in the past and that
he had told someone that he would beat the warrant in this case. Finally, Johnson
alleged that police threatened to arrest everyone in the home at the time they
conducted the search unless someone claimed ownership of the contraband.
The magistrate judge recommended denying the motion to suppress,
crediting Green’s testimony and concluding that there was no evidence that the
information in the warrant was false. The district court overruled Johnson’s
objections, adopted the recommendation, and denied the motion to suppress.
The testimony at trial established the following: Pursuant to a search
warrant, police entered the house and discovered a gun, cocaine, and baggies in a
vent; crack cocaine, money and marijuana in the bedroom closet; and a gun on the
bed in the master bedroom. In total, police found 4.53 pounds of marijuana, in
excess of 50 grams of cocaine, and more than 5 grams of crack. Police also found
a beaker with Johnson’s fingerprints and a residual amount of crack on the night
stand in the bedroom. Present in the house at the time of the search were Johnson,
Benjamin Price (also known as “Black”), Johnson’s pregnant girlfriend Shameka
McCray, and another woman. When police interviewed him, Johnson cooperated,
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admitted the drugs were his, and stated that Price had no knowledge about the
contraband. Johnson further admitted purchasing the gun and told police the
location from which he bought the weapon. This location matched the site from
which the gun was stolen.2 The court instructed the jury that the statement was
voluntary, and the parties did not contest this finding.
In his defense, Johnson called a single witness. McCray testified that she
was involved with Johnson and had been pregnant with his child at the time of the
search. She stated that, on the day of the search, Johnson and Price had been
playing video games in the master bedroom when police knocked on the door. As
Johnson went to answer the door, Price, who appeared scared when he realized the
police had arrived, removed a gun from his waist band and threw it on the bed
along with a plastic bag. The police broke down the door and handcuffed everyone
in the residence. McCray admitted that she was angry at police for placing her in
handcuffs when she was obviously pregnant. McCray testified that she overheard
the police tell Johnson that they would arrest everyone if no one claimed
ownership of the drugs. McCray denied that she had ever seen Johnson with drugs
2
The government presented evidence that the two Glock handguns and the Ruger rifle found
in the house had been manufactured outside Florida and traveled to Florida, making them firearms
that affected interstate commerce. The government also presented testimony that the Glocks were
in working order, but the Ruger was not. Finally, the parties stipulated that Johnson had prior felony
convictions.
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or guns. She confirmed, however, that she had seen Price with guns about two
months before the search, and she acknowledged that Johnson had seen Price with
guns before. She also confirmed that Johnson and Price shared the master
bedroom and closet.
The jury convicted Johnson on all counts, further finding that the amount of
crack cocaine was five grams or more. The court sentenced Johnson to 150
months imprisonment on Counts 1 though 4, to run concurrently, and a consecutive
60-month sentence on Count 5 (the § 924(c) charge), for a total of 210 months
imprisonment. Johnson now appeals.
II. The Appeal
Johnson raises two issues: whether the court erred by denying the motion to
suppress, and whether there was sufficient evidence to support his convictions.
A. Motion to Suppress
The denial of a motion to suppress is reviewed under a mixed standard:
“findings of fact are reviewed for clear error and the application of law to the facts
is reviewed de novo.” United States v. Glover, 431 F.3d 744, 747 (11th Cir. 2005).
This court views the evidence in the light most favorable to the party that prevailed
below. United States v. Yuknavich, 419 F.3d 1302, 1308 (11th Cir. 2005).
Under the Fourth Amendment, searches should be conducted “pursuant to a
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warrant.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134
L.Ed.2d 911 (1996). A search warrant must “particularly describe the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV; Fed. R.
Crim. P. 41(e)(2). There is probable cause to support a warrant “when the totality
of the circumstances allow a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” United States v. Brundidge, 170
F.3d 1350, 1352 (11th Cir. 1999). Probable cause may be based on an affidavit by
a law enforcement officer. Fed. R. Crim. P. 41(d)(2). If the affidavit is sufficient
to establish probable cause, the magistrate judge must issue the search warrant.
Fed. R. Crim. P. 41(b), (d).
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),
the Supreme Court explained the standards for considering an attack on the
veracity of an affidavit filed in support of a search warrant. The Court stated that:
There is, of course, a presumption of validity with respect to the
affidavit supporting the search warrant. To mandate an evidentiary
hearing, the challenger’s attack must be more than conclusory and
must be supported by more than a mere desire to cross-examine.
There must be allegations of deliberate falsehood or of reckless
disregard for the truth, and those allegations must be accompanied by
an offer of proof. They should point out specifically the portion of the
warrant affidavit that is claimed to be false; and they should be
accompanied by a statement of supporting reasons. Affidavits or
sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained. Allegations of
negligence or innocent mistake are insufficient.
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Franks, 438 U.S. at 171-72; see also United States v. Novaton, 271 F.3d 968, 986
(11th Cir. 2001).
“Credibility determinations are typically the province of the fact finder
because the fact finder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of witnesses.” United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). “Therefore . . . ,
[this court] should defer to the magistrate judge’s determinations unless his
understanding of the facts appears to be ‘unbelievable.’” Id. (citing United States
v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)).
Here, Johnson contends that Green’s statements supporting the warrant were
false and the warrant was invalid because (1) Green could not have had a vantage
point to witness the events, (2) Green failed to include the CI’s observation of
additional drugs in the house when Green made the application to the judge, and
(3) Green failed to search the CI adequately and completely before the buy.
In this case, the district court properly denied the motion to suppress. First,
the magistrate judge found that Green’s testimony was more credible than
Johnson’s testimony. This finding is entitled to deference unless Green’s
testimony was unbelievable. A review of the record demonstrates that there was
nothing in Green’s testimony that was unbelievable or contradictory.
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Green testified that he was able to see the CI on the rear porch area of the
house, which Green considered to be “inside” the house, from a vantage point a
few houses behind Johnson’s backyard. The only evidence to contradict this was
Johnson’s testimony that the property would not have been visible. Given the
testimony, it cannot be said that Green’s testimony was incredible or that Johnson
was more credible.
Moreover, there was no evidence that Green made a false statement with
respect to the additional drugs, and the fact that Green did not include the
additional drugs in his notes was not an inconsistency or contradiction in his
testimony. Viewing the evidence in the light most favorable to the government,
drawing all favorable inferences, and giving due deference to the magistrate
judge’s credibility determination, this discrepancy is insufficient to establish that
Green gave false information on the warrant.
Finally, Green’s search of the CI before the buy does not call into question
the believability of Green’s testimony. Johnson claimed that the search was
worthless because Green failed to check the CI’s groin area, where the CI could
have been hiding. Other than Johnson’s assertion, there was no evidence at the
hearing to show that the CI was hiding drugs. Therefore, Johnson’s assertion was
insufficient to show that Green made a false statement in support of the warrant.
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Accordingly, the district court properly denied the motion to suppress.
B. Sufficiency of the Evidence
We review the sufficiency of evidence supporting a conviction de novo to
determine whether there was substantial evidence, viewed in the light most
favorable to the government, to support the jury’s guilty verdict. United States v.
Baker, 432 F.3d 1189, 1231 (11th Cir. 2005). A guilty verdict will not be
disturbed on appeal unless no reasonable trier of fact could have found guilt
beyond a reasonable doubt on the evidence before it. Id.; see also United States v.
Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004). Additionally, all credibility
inferences are drawn in favor of the government. United States v. Cooper, 203
F.3d 1279, 1285 (11th Cir. 2000).
Here, Johnson was convicted of offenses under 21 U.S.C. § 841 and 18
U.S.C. §§ 922(g) and 924(c). A thorough review of the record indicates that there
was sufficient evidence to support the convictions.
A conviction under § 841 requires the government to prove that the
defendant possessed a controlled substance knowingly and willfully and that he did
so with the intent to distribute it. United States v. Anderson, 289 F.3d 1321, 1325
(11th Cir. 2002); see also United States v. Baker, 432 F.3d 1189, 1233 (11th Cir.
2005). To establish that a defendant violated § 922(g), the government must show
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that “the defendant was (1) in knowing possession of a firearm, (2) a convicted
felon, and (3) that the firearm affected interstate commerce.” United States v.
Glover, 431 F.3d 744, 748 (11th Cir. 2005); United States v. Hall, 77 F.3d 398,
402 n. 4 (11th Cir. 1996). To convict a defendant under § 924(c), the government
must show that, during and in relation to a drug-trafficking offense, the defendant
used, carried, or possessed a firearm in furtherance of that crime. 18 U.S.C.
§ 924(c); United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). The
government must also establish some nexus between the firearm and the drug
trafficking offense to show possession was in furtherance of the crime. Gunn, 369
F.3d at 1234. Johnson challenges only the element of possession.
Possession may be actual or constructive, joint or sole. Glover, 431 F.3d at
748; United States v. Crawford, 906 F.2d 1531, 1535 (11th Cir. 1990). To
establish constructive possession, the government must show “ownership,
dominion, or control” over the firearm. Glover, 431 F.3d at 748.
Here, the evidence established that Johnson resided in the home where the
drugs and guns were found, that he confessed to ownership of the drugs when
interviewed by the police, and that his fingerprints were found on a beaker
containing cocaine residue. Thus, there was sufficient evidence to establish
Johnson possessed the drugs. In addition, Johnson admitted purchasing the guns,
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one of the guns was found in the bedroom Johnson used, and McCray testified that
Johnson knew Price had the guns. This evidence was sufficient for the government
to show that Johnson had control or dominion over the firearms. See Glover, 431
F.3d at 748.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court.
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