[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 12, 2008
No. 08-10935 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00091-CR-T-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM LENORIES WRIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 12, 2008)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
William Lenories Wright appeals his firearm and drug convictions. After
review, we affirm.
I. BACKGROUND
Wright stopped his pickup truck on the median of a busy interstate highway.
Alabama State Trooper James Hendrix stopped to investigate and found that
Wright had a suspended license and appeared to have been drinking. After Wright
was placed in the patrol car, Hendrix searched Wright’s truck and found a firearm
and a bag containing crack cocaine and marijuana. Wright was a convicted felon.
Wright was charged with possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (Count 1); possession with intent to distribute
more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(Count 2); possession of marijuana, in violation of 21 U.S.C. § 844 (Count 3); and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (Count 4). Wright pled not guilty.
A. Motion to Suppress
Prior to trial, Wright moved to suppress: (1) the evidence from the search of
his truck; and (2) statements made to Trooper Hendrix after his arrest.
At the suppression hearing, Trooper Hendrix testified about the search and
Wright’s arrest. Hendrix responded to a call from dispatch reporting a vehicle in
the median of Interstate 65. At the time, it was raining and there was heavy traffic.
Hendrix found Wright sitting behind the wheel of the pickup truck, which was
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stuck in the mud. The truck had minor damage and a passenger, Queenie Davis,
complained of a shoulder injury.
Hendrix smelled alcohol on Wright’s breath and noticed that Wright’s
speech was slurred. Because of the rain, mud and heavy traffic, Hendrix could not
conduct a field sobriety test. However, he did conduct a preliminary breath test,
which showed that Wright’s blood-alcohol content was .11, over Alabama’s legal
limit. Hendrix learned that Wright’s driver’s license was suspended and that Davis
did not have a driver’s license.
Because neither Wright nor Davis could drive the truck, Hendrix impounded
the vehicle and called for a wrecker. Hendrix placed Wright in his patrol car to
transport him to the station where he could conduct a field sobriety test under a
canopy. Hendrix explained that, although he knew Wright was under the influence
of alcohol, he did not arrest Wright for DUI at the scene because he had not yet
performed a field sobriety test.
Hendrix returned to the truck to perform an inventory search before the
wrecker arrived. Hendrix asked Davis, who was covering herself with a jacket
and a blanket, to get out of the truck. As Davis exited the vehicle, Deputy Kevin
McNatt, who was assisting Hendrix, pulled away the jacket and blanket, revealing
a pistol lying in the middle of the bench seat.
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Upon finding the pistol, Hendrix asked Wright if he had a permit to carry a
weapon. Wright responded that he did not. Hendrix then advised Wright of his
Miranda1 rights by reading from a card Hendrix carried in his police car. Wright
told Hendrix he understood his rights and agreed to answer questions. Wright told
Hendrix the drugs and firearm belonged to his brother Larry. Hendrix also advised
the passenger, Davis, of her rights, after which she told Hendrix that she had no
knowledge of the gun or drugs.
At this point, Hendrix arrested Wright for possession of a firearm without a
permit. Hendrix then conducted a more extensive vehicle search and found a
Crown Royal bag containing what appeared to be crack cocaine and marijuana
behind the driver’s seat.
Hendrix explained that the Alabama State Trooper regulations require
officers to remove from the roadway the vehicle of a person arrested or detained.
Prior to removing the vehicle, the officer must conduct an inventory search. The
officer must list all items of value found in the vehicle and have the wrecker driver
sign off on the list before removing the vehicle. The officer can search anything in
the vehicle, including a bag or box, unless it is locked.
Following the hearing, a magistrate judge issued a report (“R&R”)
1
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).
4
recommending that the district court deny Wright’s motion to suppress. The R&R
found that the search of Wright’s truck was a valid inventory search because
Hendrix reasonably concluded that no one was available to take control of the
vehicle and, under those circumstances, regulations required Hendrix to impound
the vehicle and conduct an inventory search.
The R&R concluded that once Wright admitted he did not have a permit for
the firearm, probable cause existed to arrest him. Thus, the second search
following his arrest, which uncovered the Crown Royal bag containing drugs, was
incident to Wright’s lawful arrest. The R&R also concluded that the brief time
between the initial search and the reading of the Miranda rights did not render
Wright’s post-Miranda statements inadmissible.
Wright objected to the R&R. After de novo review, the district court
overruled Wright’s objections, adopted the R&R and denied Wright’s motion to
suppress.
B. Trial
At trial, Trooper Hendrix repeated his testimony about his encounter with
Wright on the interstate median, the search of Wright’s truck and Wright’s arrest.
Hendrix also provided additional details. For example, Hendrix stated that Wright
produced his driver’s license and registration as requested, and Hendrix checked
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the database and learned the license was suspended. Wright also told Hendrix he
had been drinking earlier in Birmingham. During the search of the truck, Hendrix
found a Hi-Point nine-millimeter pistol sitting in the middle of the bench seat
under a blanket. Hendrix testified the pistol would have been within Wright’s
reach if he was sitting behind the steering wheel.
The Crown Royal bag contained a green leafy substance and several small
plastic bags. One of the plastic bags contained a “cookie of crack cocaine,” while
the others contained only crumbs. Hendrix explained that drug dealers chip
smaller pieces off of a “cookie” to sell and that a cookie of crack cocaine is
consistent with possession for distribution, not personal use.
Hendrix testified that he read Wright his Miranda rights from a card he kept
in his pocket. Hendrix explained that he used this card regularly to ensure he read
the rights consistently, that he read all the rights listed on the card and that Wright
indicated after each that he understood. After arresting Wright for possession of a
firearm without a permit, Hendrix conducted a criminal history check and learned
Wright was a felon.
On cross-examination, Hendrix explained that Davis was not charged with
firearm possession because Davis told Hendrix she had no knowledge of the gun
and there was no evidence the gun belong to her. Wright, on the other hand, knew
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of the gun because he stated that it belonged to his brother. Hendrix stated that the
gun “was closer to where Mr. Wright was sitting, in my opinion . . . .” When
defense counsel reminded Hendrix that he testified at the suppression hearing that
he could not determine to whom the gun was closer, Hendrix replied that his
suppression hearing testimony was “[a]n error on [his] part.” Hendrix explained
that he charged Wright with possession of the drugs because of the proximity of
the drugs to where Wright was sitting and Wright’s statement that the drugs
belonged to his brother, which indicated Wright knew the drugs were in the truck.
Deputy McNatt, who assisted Hendrix at Wright’s arrest, also testified.
According to McNatt, Davis was asked to exit the truck and, as she got out,
McNatt pulled away the blanket that was over her legs, exposing the firearm on the
bench seat. The firearm was closer to the driver’s side. McNatt also found the
Crown Royal bag that contained three or four bags of a rock substance and some
marijuana. The Crown Royal bag was behind the driver’s side of the seat and
within arm’s reach of the driver, but was not personally accessible to the passenger
unless she exited the truck.
McNatt opined that the typical amount of cocaine possessed for personal use
is “one or two small rocks” and that personal use drugs usually are not kept in
separate packages. McNatt heard Hendrix read Wright his constitutional rights,
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although he could not recall whether Hendrix read them from a card or a sheet of
paper and did not hear Wright’s response.
The government also called: (1) Theron Jackson of the Bureau of Alcohol,
Tobacco, Firearms and Explosives, who testified that the pistol found in Wright’s
truck was manufactured in Ohio, and (2) Michael Hitchcock of the Alabama
Department of Forensic Science, who testified that one of the plastic bags inside
the Crown Royal bag contained 11.79 grams of crack cocaine and another
contained 9 grams of marijuana.
After the government rested, Wright called Queenie Davis. Davis testified,
inter alia, that she had only worked “off an on” because of drug use and that crack
cocaine was her drug of choice. Davis explained that she discovered the drugs and
the firearm in the pockets of the jacket she used to cover herself the night Wright
was arrested. Although Davis stated that she got the jacket from her son’s house,
she denied that her son used drugs. Davis also denied the drugs were “packaged.”
Davis said the drugs were in one big, clear bag; were in “one big piece,” rather
than many small pieces; and did not include marijuana. Davis admitted she put the
bag behind the seat when police arrived at the scene.
Davis initially could not recall when she discovered the firearm, but stated
that it was before the police arrived. Later Davis stated that she found the firearm
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right before the truck ran off the road. Davis explained that “it was so shaky, and
[the firearm] kind of like almost came out. So I just slid it out of my pocket and
put it under the blanket.” Davis admitted she did not volunteer to police that the
gun had been in her jacket and explained that officers did not ask her about the
gun. The district court denied Wright’s motion for a judgment of acquittal.
C. Jury Instructions
After closing arguments, the district court read the jury instructions. With
respect to Court Four, charging possession of a firearm in furtherance of a drug
trafficking crime, the district court stated:
Now, to carry or possess a firearm means that the defendant either had
a firearm on or around his person or transported, conveyed, or
controlled a firearm in such a way that it was available for immediate
use if the defendant so desired during the commission of the drug
trafficking offense. To carry a firearm in relation to an offense means
that there must be a connection between the defendant, the firearm,
and the drug trafficking offense so that the presence of the firearm
was not accidental or coincidental but facilitated the crime by serving
some important function or purpose of the criminal activity. To
possess a firearm in furtherance of an offense means something lower
than mere presence of a firearm. It must be shown that the firearm
helped, furthered, promoted, or advanced the offense in some way.
(Emphasis added). The jury found Wright guilty on all counts. The district court
imposed a 156-month sentence. Wright filed this appeal.
II. DISCUSSION
Several of Wright’s claims clearly lack merit, and thus we address them
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briefly. First, Hendrix’s testimony established that Wright’s vehicle was
impounded and the inventory search was conducted pursuant to Alabama State
Trooper regulations. Therefore, the firearm and drugs were found during a valid
inventory search and were admissible.
Second, there was sufficient evidence to support the jury’s finding that
Wright knowingly possessed the firearm and drugs. The government presented
ample evidence from which a jury could have reasonably concluded that Wright
was aware of the drugs and the firearm and constructively possessed them. Wright
relies solely on Davis’s testimony that she found the drugs and firearm in her
jacket. However, the jury could have, and obviously did, disbelieve Davis’s
testimony, and we will not disturb that finding. Wright’s remaining two claims
merit more discussion.
A. Waiver of Miranda Rights
After placing Wright under arrest and advising him of his Miranda rights,
Hendrix asked Wright about the firearm and the drugs. Wright stated that they
belonged to his brother. On appeal, Wright argues that the district court erred in
not suppressing his post-Miranda statement that the firearm and drugs were his
brother’s.2
2
On appeal, Wright does not argue that his pre-Miranda statement that he did not have a
permit to carry a weapon should have been suppressed.
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Wright argues, for the first time on appeal, that the government failed to
prove he was properly advised of his Miranda rights because there is no evidence
of what rights were listed on the card from which Hendrix read.3
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), “evidence
obtained as a result of a custodial interrogation is inadmissible unless the defendant
had first been warned of his rights and knowingly waived those rights.” United
States v. Parr, 716 F.2d 796, 817 (11th Cir. 1983). The government must prove by
a preponderance of the evidence that the defendant waived his rights knowingly
and voluntarily. United States v. Glover, 431 F.3d 744, 748 (11th Cir. 2005).
To meet its burden, the government may not rely on “presumptions or
inferences that when police officers read to an accused from a card they are reading
Miranda warnings or that what is read, without revelation of its contents, meets
constitutional standards.” Moll v. United States, 413 F.2d 1233, 1238 (5th Cir.
1969). However, the government does not rely merely on “a presumption” if the
defendant admits a warning was given and the arresting officer testifies that he
read from a card containing “the standard Miranda warnings.” See United States v.
3
Because Wright did not raise this argument in the district court, we review for plain
error. See United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Under the plain error
standard, “[a]n appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights . . . [and
then] only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
11
Klein, 592 F.2d 909, 914 (5th Cir. 1979).
We cannot say the admission of Wright’s post-arrest statements was plain
error. Hendrix testified not only that he read from a card, but that the card
contained the Miranda warnings, that he used this card routinely to advise people
of their rights to ensure he stated the rights consistently and that he read all the
rights listed on the card. McNatt substantiated this testimony by testifying that he
heard Hendrix read Wright the Miranda warnings.
We note that Wright does not claim Hendrix did not read him his rights. He
merely challenges the government’s proof by asserting that the contents of the card
should have been read into the record. However, because Wright never raised this
issue in his motion to suppress or his objection to the R&R, neither the district
court nor the government had reason to believe that the precise contents of the
rights card would be at issue and should be placed in the record.
Wright also argues for the first time that the government failed to show he
had the capacity to waive his Miranda rights because he was intoxicated at the
time. An accused effectively waives his Miranda rights if he: (1) voluntarily
relinquishes them as the product of a free and deliberate choice, rather than through
intimidation, coercion or deception; and (2) makes his decision with a full
awareness of both the nature of the rights being abandoned and the consequences
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of the decision to abandon them. United States v. Barbour, 70 F.3d 580, 585 (11th
Cir. 1995). A waiver is effective where the totality of the circumstances reveal
both an uncoerced choice and the requisite level of comprehension. Id.4
Here, although Wright’s breath smelled of alcohol and his speech sometimes
was slurred, Wright was able to comply with Hendrix’s instructions to produce his
license and registration and to understand and coherently respond to Hendrix’s
questions. Wright told Hendrix he understood his Miranda rights. Under these
circumstances, the district court did not commit plain error in admitting Wright’s
post-arrest statements.
B. Jury Instruction
Wright argues that the district court improperly instructed the jury on the
meaning of possession of a firearm in furtherance of a drug trafficking crime when
the court stated that “to possess a firearm in furtherance of an offense means
something lower than mere presence of a firearm.”
Ordinarily, we review de novo the legal correctness of a jury instruction;
however, when, as here, the defendant did not object to the jury instruction in the
district court, we review only for plain error. United States v. Prather, 205 F.3d
1265, 1270 (11th Cir. 2000). To reverse under a plain error standard of review, the
4
Wright does not claim that his choice was coerced.
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challenged instruction must be a plainly incorrect statement of the law and must
have been “‘probably responsible for an incorrect verdict, leading to substantial
injustice.’” Id. at 1271 (quoting Montgomery v. Naga, 168 F.3d 1282, 1294 (11th
Cir. 1999)). Furthermore, in reviewing a jury instruction, we must determine
whether the district court’s charge, “considered as a whole, sufficiently instructed
the jury so that the jurors understood the issues involved and were not misled.”
United States v. Shores, 966 F.2d 1383, 1386 (11th Cir. 1992) (quotation marks
omitted).
The parties agree that the district court misspoke when it stated that
possession in furtherance of a trafficking offense meant something “lower than”
mere presence of the firearm and that the law requires something more than mere
presence. See United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)
(concluding that mere presence of a firearm is insufficient to show possession “in
furtherance” of a drug trafficking crime). However, we conclude that the district
court’s mistake did not affect Wright’s substantial rights. When the charge is
viewed as a whole, it is clear that any misunderstanding created by the district
court’s use of the word “lower” rather than “higher” was remedied by the district
court’s full definition of possession in furtherance of a drug trafficking crime.
Immediately preceding its misstatement, the district court stated that the jury
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must find a “connection between the defendant, the firearm, and the drug
trafficking offense so that the presence of the firearm was not accidental or
coincidental but facilitated the crime.” This statement indicates that mere presence
is insufficient. Furthermore, immediately after its misstatement, the district court
stated that the government must show “that the firearm helped, furthered,
promoted, or advanced the offense in some way.” This statement clearly instructs
the jury that it cannot find Wright guilty of the offense unless the firearm
contributed to the offense in one of the four listed ways, any of which would be
sufficient to establish more than mere presence. Viewing the district court’s
instruction as a whole, we cannot say the district court’s one-word misstatement
misled the jury or probably led to an incorrect verdict.
III. CONCLUSION
For all these reasons, we affirm Wright’s convictions and sentences.
However, we note that the district court’s judgment erroneously cites 21 U.S.C.
§ 844(a)(1) instead of 21 U.S.C. § 841(a)(1) as the statute violated in Count 2.
Therefore, we remand to the district court for the limited purpose of correcting this
clerical error.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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