[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 21, 2007
No. 07-11517 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00258-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YUSEF LATEEF JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 21, 2007)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Yusef Lateef Jackson appeals his conviction for possession of a firearm by a
convicted felon, a violation of 18 U.S.C. § 922(g)(1). On appeal, he argues the
following: (1) The traffic stop and frisk violated Jackson’s Fourth Amendment
rights; (2) Jackson’s statements in the subsequent interrogation were made
involuntarily; (3) the district court abused its discretion in the way it responded to a
jury question; (4) the jury based Jackson’s conviction on insufficient evidence; and
(5) Jackson received ineffective assistance of counsel. We address each issue in
turn.
I. BACKGROUND
While standing in the street one afternoon, Officer Brown witnessed
Jackson, a convicted felon, drive by without wearing his seatbelt. Having spoken
with him on prior occasions, Brown recognized Jackson and knew he was wanted
for questioning in a murder investigation. Brown pulled Jackson’s car over and
called for backup. Officer Debnam arrived at the scene and the officers asked
Jackson to step out of the car. Debnam then frisked Jackson and felt an elongated
object, found to be a bag marijuana. The officers arrested Jackson, and performed a
search of his car. Officer Brown recovered a fully-loaded revolver from underneath
the driver’s seat. Jackson moved to suppress the evidence obtained during this
search, arguing that the officers violated his Fourth Amendment rights. The district
court dismissed the motion.
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Back at the station, after being read his Miranda rights, Sergeant Izzo and
Detective Hunt interviewed Jackson for nearly two hours that afternoon,
questioning him about the gun and the ongoing murder investigation. When asked
about the incident earlier that afternoon, Jackson stated, “the reason I had that gun
... I had it for protection... right to bear arms, you know.” On the day before trial,
Jackson moved to suppress these statements, claiming that they were obtained in
violation of his Fifth Amendment rights. The district court dismissed the motion as
untimely, as well as on its merits.
Jackson also claims that the district court improperly responded to a jury
question. The parties stipulated to each element of the offense, except the scienter
requirement. Accordingly, Jackson defended the merits solely on the ground that,
as he was driving a former girlfriend’s car and his fingerprints were not on the gun,
he lacked knowledge as to the existence of the firearm. During its deliberations, the
jury asked the judge a hypothetical question regarding the legal standard for
“knowledge.” The judge responded: “Ladies and gentlemen, you’ve got all of the
evidence. You’ve got the stipulations. We’re not talking about theoretical stuff.
You have a question to answer. Answer it.” Jackson claims this response was an
abuse of discretion and that he is therefore entitled to a new trial.
Jackson further asserts the defense of ineffective assistance by his current
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attorney. Jackson claims the district court’s refusal to allow his counsel to
withdraw was an abuse of discretion.
II. DISCUSSION
A. The Stop and Frisk
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999)
(citing United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir. 1990)). We accept
the district court’s factual findings as true unless the findings are shown to be
clearly erroneous. Id. Furthermore, “all facts are construed in the light most
favorable to the prevailing party below.” United States v. Bervaldi, 226 F.3d 1256,
1262 (11th Cir. 2000) (citing United States v. Magluta, 44 F.3d 1530, 1536 (11th
Cir. 1995)). On the other hand, the district court’s application of the law to the
facts is reviewed de novo. Id.
The Fourth Amendment protects individuals from “unreasonable searches
and seizures” by government officials, and its protections extend to “brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). A decision to stop a vehicle is reasonable
under the Fourth Amendment where an officer has probable cause to believe that a
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traffic violation occurred. United States v. Simmons, 172 F.3d 775, 778 (11th Cir.
1999) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996)).
Jackson was not wearing a seatbelt, a traffic violation under Georgia law.
O.C.G.A. § 40-8-76.1. Jackson argues that his failure to wear a seatbelt was a
pretext for Officer Brown’s allegedly illegitimate motive in stopping his car: to
investigate Jackson’s connection with a pending murder investigation. Pretext or
not, this argument fails. As the Supreme Court emphasized in Whren, the
constitutional reasonableness of a traffic stop does not depend on an officer’s
actual motivations. 517 U.S. at 813; Miller v. Harget, 458 F.3d 1251, 1260 (11th
Cir. 2006), cert. denied, 127 S.Ct. 2429 (U.S. May 21, 2007) (No. 06-1258) (“It is
well-settled that an officer's subjective motivations do not affect whether probable
cause existed.” (citing Whren, 517 U.S. at 813)).
Routine traffic stops are governed by the reasonable suspicion standard set
forth in Terry. An individual may be frisked where the officer reasonably believes
he poses a danger. Terry, 392 U.S. at 30; United States v. Purcell, 236 F.3d 1274,
1277 (11th Cir. 2001) (in routine traffic stops, officers may take reasonable steps to
protect their safety, including a protective search of the driver). The officers stated
that Jackson was unduly sweating and glancing around nervously. Nervous
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behavior is a “pertinent factor in determining reasonable suspicion.” United States
v. Gordon, 231 F.3d 750, 756 (11th Cir. 2001). Furthermore, Officer Brown knew
that Jackson was wanted for questioning regarding a violent crime. Under the
circumstances, the officers were reasonably concerned for their safety, and a frisk
of Jackson was warranted.
Upon finding the marijuana and arresting Jackson, the officers had full
authority to search the vehicle. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct.
2860, 69 L.Ed.2d 768 (1981) (when an officer has made a lawful arrest of a
vehicle’s occupant, he may contemporaneously search the vehicle). Because the
arrest was lawful, Officer Brown’s search of the passenger area and recovery of the
firearm from underneath the driver’s seat did not violate Jackson’s Fourth
Amendment rights. Accordingly, the district court did not err in denying his
motion to suppress.
B. The Interrogation
Jackson argues that the statements he made in his post-arrest interrogation
were not given voluntarily. He claims that the statements should be suppressed
because the officers obtained them through false representations about the benefits
of participating in the interrogation. He also argues that the interrogation continued
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despite his attempts to end it and that he was sleep-deprived.1 Jackson filed a
motion to suppress this interrogation the day before trial.2
The standards of review for a denial of a motion to suppress are set out
above. The standard for evaluating the voluntariness of a confession is whether a
person “‘made an independent and informed choice of his own free will,
possessing the capability to do so, his will not being overborne by the pressures
and circumstances swirling around him.’” McCoy v. Newsome, 953 F.2d 1252,
1263 (11th Cir. 1992) (per curiam) (quoting Moore v. Dugger, 856 F.2d 129, 132
(11th Cir. 1988)). Voluntariness is measured by the totality of the circumstances.
Id. We look to such factors as whether the defendant was subjected to “an
exhaustingly long interrogation,” whether the interrogators applied physical force
to the defendant or threatened to do so, and whether the interrogators made
promises to induce the defendant's statements. United States v. Thompson, 422
F.3d 1285, 1295-96 (11th Cir. 2005), cert. denied, 127 S.Ct. 748 (U.S. Dec. 4,
2006) (citing United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.
1
Jackson acknowledges that after being read his Miranda rights, an individual must
unambiguously request counsel to invoke Fifth Amendment protections. The district court only
allowed into evidence the portion of his interview occurring before Jackson unequivocally
invoked his right to counsel.
2
The district court alternatively dismissed this motion as untimely. However, Jackson did
not receive a copy of the videotaped interrogation until after the deadline to file pre-trial
motions. Therefore, as we find the dismissal was proper on the merits, we will not address these
alternative grounds.
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1992)). On the other hand, the Supreme Court has stated that depriving a suspect of
sleep during an interrogation is a significant factor in finding a confession
involuntary. Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 64 S.Ct. 921, 88 L.Ed.
1192 (1944) (finding a compelled confession where suspect was held and
questioned for 36 hours without sleep).
Jackson’s statements concerning the firearm were made voluntarily. First,
the interrogation was not “exhaustingly long,” nor was Jackson subject to sleep-
deprivation: he was interviewed for less than two hours. Second, Jackson provides
no evidence that the police used physical force or tricks during the interrogation.
Third, during the interview, the police specifically told Jackson that they could not
make him any promises. As nothing in the record supports the contention that
Jackson’s statements were made involuntarily, the district court did not err in
denying Jackson’s motion to suppress on the merits.
C. The Judge’s Response to the Jury Question
Jackson argues that the district court abused its discretion by refusing to
address the jury’s hypothetical question about the legal standard for “knowledge.”
Jackson claims that the district court discredited his sole defense–lack of intent–by
stating to the jury, “We’re not talking about theoretical stuff.”
We review a court’s response to a jury question for an abuse of discretion.
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United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991).
The district court did not abuse its discretion in its response to the jury’s
question. The jury had copies of adequate, legally accurate instructions regarding
the elements of the offense. The district court simply refused to answer a
hypothetical question and instead pointed the jury to the evidence and stipulations.
In light of its original detailed instructions that accurately presented the substantive
law, the district court did not abuse its discretion in refusing to directly answer a
jury’s hypothetical question.
D. Sufficiency of the Evidence
We review de novo challenges to the sufficiency of the evidence. United
States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000) (per curiam) (citing United
States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999)). The evidence is viewed
in the light most favorable to the government, and we draw all “reasonable
inferences and credibility determinations in favor of the verdict.” United States v.
Simpson, 228 F.3d 1294, 1299 (11th Cir. 2000) (citing United States v. Toler, 144
F.3d 1423, 1428 (11th Cir. 1998)). A guilty verdict must stand “unless no trier of
fact could have found guilt beyond a reasonable doubt.” United States v. Lyons, 53
F.3d 1198, 1202 (11th Cir. 1995) (citing United States v. Battle, 892 F.2d 992, 998
(11th Cir. 1990)).
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To establish possession of a firearm by a felon under 18 U.S.C. § 922(g)(1),
the government must prove that “‘the defendant was (1) in knowing possession of
a firearm, (2) a convicted felon, and (3) that the firearm affected interstate
commerce.’” U.S. v. Glover, 431 F.3d 744, 748 (11th Cir. 2005) (per curiam)
(quoting United States v. Hall, 77 F.3d 398, 402 n.4 (11th Cir. 1996)). Jackson
concedes the second and third elements and argues that there is insufficient
evidence to prove that he knowingly possessed the firearm.
From the evidence, a reasonable juror could conclude beyond a reasonable
doubt that Jackson knowingly possessed the firearm. Officer Brown found the gun
underneath the driver’s seat of a car that Jackson was driving. Furthermore,
Jackson implicitly admitted possessing the firearm by stating: “the reason I had
that gun ... I had it for protection... right to bear arms, you know.” Viewing these
facts in a light most favorable to the government, the evidence is sufficient to
support Jackson’s conviction.
E. Ineffective Assistance
Jackson, proceeding pro se, argues on appeal that his current counsel was
ineffective. Because claims of ineffective assistance of counsel are best presented
in a collateral attack via a 28 U.S.C. § 2255 motion rather than on direct appeal, we
decline to consider these claims. See Massaro v. United States, 538 U.S. 500, 504-
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05, 508, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
III. CONCLUSION
For the above reasons, the district court properly dismissed Jackson’s
motions to suppress the evidence gathered during his stop and frisk, and his
statements made during interrogation; the district court did not abuse its discretion
in its response to a jury question; and sufficient evidence supported Jackson’s
conviction.
AFFIRMED.
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