[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15369 January 7, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00008-CR-1-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG PAULINUS CLAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 7, 2003)
Before ANDERSON, BARKETT and RONEY Circuit Judges.
PER CURIAM:
Craig Paulinus Clay appeals his convictions and sentences for (1) possession
with intent to distribute cocaine hydrochloride, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
and 851, (2) possession with intent to distribute at least fifty grams of cocaine base
(“crack”), 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 851, and (3) possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). Clay makes three arguments
on appeal: (1) the district court improperly denied his motion to suppress evidence,
alleging the search warrants were not based on probable cause, were illegally
executed, and he was denied a hearing on the suppression issues; (2) he should not
have been convicted of or sentenced for possession of an aggregate of at least 50
grams of cocaine base because less than 50 grams of cocaine seized by officers on the
same day were located in two different locations; and (3) the government failed to
prove the interstate commerce element of the firearm count. We affirm.
(1) Denial of the motion to suppress
In July 1997 a Georgia state inter-agency police narcotics squad was engaged
in an investigation of allegations that Clay was distributing crack cocaine from Phase
II, a business operated by Clay in Toccoa, Georgia. For three or four weekends,
Detective Rusty Fulbright had conducted surveillance of Phase II, observing on
several occasions a person walking from the Phase II building into the parking lot and
making brief hand-to-hand exchanges with individuals. Based on activities observed
by Detective Fulbright, as well as information from three confidential informants who
had indicated that Clay had been selling crack cocaine at Phase II, an affidavit for a
2
search warrant of Phase II was drafted, submitted to and approved by a state judge,
and executed by the narcotics squad on the evening of July 31, 1997. Approximately
one hour before the execution of that warrant, Detective Fulbright observed Clay in
the parking lot and observed a man later identified as Larry Darnell Dukes make
another hand-to-hand transaction at Clay’s instructions. During the execution of that
search warrant, officers witnessed Clay attempting to swallow what appeared to be
crack cocaine. A search of Phase II revealed, inter alia, 19.2 grams of cocaine base.
Later that day, a second affidavit for search warrant was prepared by the
investigating officers and again approved by a Georgia state judge. The second
search warrant authorized the search of a motel room that had been registered in
Clay’s name for the two preceding months. The officers ultimately seized a total of
33.3 grams of cocaine base from that motel room, along with a .38 caliber Colt
firearm.
Clay was first prosecuted in Georgia state court. A state judge held an
evidentiary hearing on a motion to suppress evidence seized at both Phase II and
Clay’s motel room. Several officers, including Detective Fulbright, testified at that
state evidentiary hearing as to the information contained in the applications for search
warrants. The state court ultimately denied Clay’s motion to suppress. Shortly
thereafter, the prosecution of the case was transferred to the United States Attorney’s
3
Office for the Northern District of Georgia, and a three-count federal indictment was
subsequently issued.
Clay filed a motion to suppress in federal district court, requesting a hearing.
The magistrate judge reviewed the transcript of Clay’s state court suppression hearing
and recommended that the district court deny Clay’s motion to suppress without a
hearing on the motion, which the district court adopted. Clay argues that the district
court erred by denying his motion to suppress evidence seized pursuant to the two
July 31, 1997 Georgia state search warrants because those warrants lacked probable
cause. Intertwined with Clay’s contention that the search warrants lacked probable
cause is that those warrants were also executed illegally, and that the district court
erred by not conducting its own suppression hearing. Specifically, he asserts that
because the warrants were drafted and executed by Georgia state, approved by a state
judge, and Georgia does not recognize a United States v. Leon, 468 U.S. 897 (1987),
good faith exception to the execution of a search warrant, the district court erred by
holding that good faith exception as an alternative ground for upholding the validity
of the search warrant without first conducting a hearing.
There is no reversible error. It is established law of this Circuit that the
admissibility in federal court of the products of state searches and seizures is
controlled by federal law. See United States v. De La Rosa, 922 F.2d 675, 678-79
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(11th Cir. 1999) (“In determining whether there has been an unreasonable search and
seizure by state officers a federal court must make an independent inquiry . . .. The
test is one of federal law, neither enlarged by what one state court may have
countenanced, nor diminished by what another may have colorably suppressed.”)
(internal quotation and citation omitted); United States v. Mastrangelo, 733 F.2d 793,
799 (11th Cir. 1984); Burge v. Estelle, 496 F.2d 1177, 1178 (5th Cir. 1974).
Therefore, whether Georgia law permits or does not permit a good faith exception to
the warrant requirement is irrelevant in a federal court’s independent evaluation of
the admissibility and the reasonableness of a search and seizure by state officers
utilized in a federal criminal prosecution.
A careful review of the Georgia state affidavits for search warrants reveals that
under the totality of the circumstances the issuing state magistrate judge was provided
specific information that cocaine was being stored at Clay’s motel room and being
sold from Phase II. The state court’s findings of facts that were before the magistrate
court in this case were not clearly erroneous, and the warrants were thus supported
by probable cause. See United States v. Miller, 24 F.3d 1357, 1363 (11th Cir. 1994)
(noting “reviewing courts lend substantial deference to an issuing magistrate’s
probable cause determinations” based on, inter alia, a review of search warrant
affidavits). We need not consider Clay’s argument that it was error for the district
5
court to not conduct an evidentiary hearing to address the good faith exception
because, after careful review, we hold that the affidavits had probable cause and the
good faith exception thus need not apply.
(2) Conviction and sentence for possession of an aggregate of at least
50 grams of cocaine base
Although cocaine base was found at two different locations (19.2 grams at
Phase II and 33.3 grams in the motel room) on the same day, Count Two of the
indictment charged one single count of possession with intent to distribute at least
fifty grams of cocaine base. Specifically, the indictment charged, “On or about July
31, 1997, in the Northern District of Georgia, the defendant . . . knowingly and
intentionally possessed at least fifty grams of a mixture and substance containing a
detectable amount of cocaine base (“crack”) . . . in violation of [21 U.S.C. §
841(a)(1), 841(b)(1)(A)(iii) and 851, 18 U.S.C. § 2].”
Clay argues that the cocaine found in two different locations amounted to
separate possessions and separate violations for which he could not be convicted in
one count. He argues that aggregation of those two quantities charged in that single
count for the purpose of achieving the requisite 50 grams of cocaine base to require
a mandatory 240-month sentence under § 841(b)(1)(A)(iii) was error.
6
Although Clay’s failure to make a motion for a judgment of acquittal at the
close of all evidence might call for a plain error standard of review, we hold that there
would be no error, even had an objection been made in the trial court. The key issue
in this case is whether Clay’s possession of two separate caches of cocaine base on
the same date but at different locations constitutes a single § 841(a) offense and thus
may be aggregated. First, as a threshold matter, this Court has held that
“constructive” possession is sufficient to prove the possession prong under § 841(a).
United States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989). We have defined
constructive possession in drug cases as “by showing ownership or dominion and
control over the drugs or over the premises on which the drugs are concealed.”
Poole, 878 F.2d at 1392; see also United States v. Harris, 20 F.3d 445, 453-54 (11th
Cir. 1994) (holding that defendant’s unrestricted access to house permitted jury to
reasonably infer that he exercised control over house and therefore maintained
constructive possession over cocaine found in the house); United States v. Morales,
868 F.2d 1562, 1573 (11th Cir. 1989) (person who leased apartment had constructive
possession of drugs found there). Moreover, courts have routinely held that
possession of two separate caches of the same drug on the same day constitutes but
one single § 841(a)(1) offense. See, e.g., United States v. Stephens, 118 F.3d 479,
482 (6th Cir. 1997); United States v. Dixon, 921 F.2d 194, 196 (8th Cir. 1990).
7
Here, the evidence adduced at trial revealed that on July 31, 1997, police
officers first searched Phase II, a business owned and operated by Clay, and found
19.2 grams of cocaine base. On that same day, the officers then traveled “a few
blocks” – approximately “a minute or two drive” – from Phase II to a motel room,
where Clay had been registered as a guest for the previous two consecutive months.
A search of that motel room revealed, inter alia, 33.3 grams of cocaine base. Those
two caches of crack cocaine totaling 52.5 grams were separated by only “a few
blocks” and were a single, simultaneous possession, at least constructively, by Clay
on July 31, 1997. To require the government to charge these two possessions on the
same day in two different counts would subject the government to a “duplicitous”
argument by defendants in these cases. See, e.g., United States v. Woods, 568 F.2d
509, 512-514 (6th Cir. 1978) (district court erred by failing to merge three heroin
possessions on the same day into one count).
(3) Whether the district court erred by utilizing a special verdict form
specifying drug quantity
Additionally, Clay argues for the first time on appeal that it was error for the
district court to utilize a special verdict form to confirm that the quantity of cocaine
base alleged in Count II was at least 50 grams, mandating a 240-month minimum
sentence.
8
A verdict form was prepared as follows in relevant part:
(A) As to Count Two, we, the jury find the Defendant
______ of possession of cocaine base with intent to
distribute.
(B) If guilty, did the offense involve at least 50 grams of
cocaine base?
(C) If guilty, and the answer to 2(B) is “No,” did the
offense involve less than 50 grams?
The jury found Clay guilty on all counts and indicated on the special verdict
form that the cocaine base involved at least 50 grams. Clay’s Pre-sentence
investigation report set an incarceration range as 188-235 months but also noted that
he faced a mandatory minimum of 240 months’ imprisonment on the possession with
intent to distribute cocaine base count. The district court sentenced Clay to 240
months’ imprisonment for the cocaine base count and ordered the remaining drug and
firearm convictions to run concurrently with that 240-month sentence.
We hold that there was no reversible error by submitting the special verdict
form to the jury to determine whether at least 50 grams of cocaine were involved in
the offense. This Court has held that special verdicts are appropriate in addressing
sentencing matters. See United States v. Dennis, 786 F.2d 1029, 1041 (11th Cir.
1986). Here, under § 841(b)(1)(A)(iii), 50 or more grams of cocaine base must have
been found by the jury in order to expose Clay, because of his prior felony drug
conviction, to a mandatory minimum sentence of 20 years’ imprisonment. See
9
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”). The district court thus did not plainly err by utilizing a special verdict form.
See United States v. Smith, 308 F.3d 726, 742 (7th Cir. 2002) (district court did not
err by special verdict form permitting a finding of a range of drug quantities); United
States v. Trennell, 290 F.3d 881, 890 (7th Cir. 2002) (no plain error by including
specific quantities of drugs in the jury instructions and verdict form).
(4) Whether the government failed to prove the interstate commerce
element of the firearm count
Next, for the first time on appeal, Clay argues that the government failed to
establish a prima facie case for his 18 U.S.C. § 922(g)(1) felon in possession of a
firearm conviction, contending that a jurisdictional defect in his conviction exists.
Specifically, he asserts that although the government offered and the district court
admitted the seized .38 caliber Colt revolver with “Colt Manufacturing Company,
Hartford, Ct.” displayed on the revolver’s barrel, the government nonetheless failed
to present evidence that the firearm indeed traveled in interstate commerce as
required by § 922(g)(1).
10
Although Clay’s argument was not made at trial, it can be raised here because
it is jurisdictional. The standard of review for jurisdictional issue is not plain error
but the same as sufficiency of the evidence standard of review. We therefore review
the evidence to determine whether “a reasonable jury, viewing the evidence and all
reasonable inferences therefrom in the light most favorable to the government could
find the defendants guilty as charged beyond a reasonable doubt.” United States v.
Williamson, 339 F.3d 1295, 1299 (11th Cir. 2003) (internal quotation and citation
omitted). That is, a jury’s verdict will be affirmed if the court determines that it “was
rationally able to find that every element of the charged crimes was established by
the government beyond a reasonable doubt.’” Id. (quoting United States v.
McCarrick, 294 F.3d 1286, 1289-90 (11th Cir. 2002) (emphasis supplied)).
Section 922(g)(1) states that it is unlawful for any convicted felon to “possess
in or affecting commerce, any firearm.” 18 U.S.C. § 922(g)(1) (emphasis supplied).
This Court has held that the “possess in or affecting commerce” portion of §
922(g)(1) is a jurisdictional element of that criminal offense. See United States v.
McAllister, 77 F.3d 387, 390 (11th Cir. 1996); see also United States v. Scott, 263
F.3d 1270, 1272 (11th Cir. 2001). Interpreting McAllister, this Court in Scott held
that “[t]o effectuate a constitutional conviction under § 922(g)(1), McAllister requires
the government to demonstrate that the firearm possessed traveled in interstate
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commerce.” Id. at 1274; see also United States v. Reynolds, 215 F.3d 1210, 1215
(11th Cir. 2000) (“The government must prove, however, that the firearm possessed
traveled in interstate commerce.”).
The dispositive question here is whether, based on the evidence presented to
the jury, it was rationally able to conclude that the weapon seized in Clay’s motel
room was possessed in or affected interstate commerce. Williamson, 339 F.3d at
1299. The evidence adduced at trial reveals that a .38 caliber Colt revolver firearm
was introduced into evidence without objection. Inscribed on its barrel was “Colt
Manufacturing Company, Hartford, Ct.” Other than this inscription on the firearm,
there was no other evidence presented at trial that the gun was possessed in or
affected interstate commerce. Although no witness read the inscription on the barrel
of the revolver to the jury during the evidence stage of trial, the government did,
during closing arguments, call the jury’s attention to the inscription on the revolver,
indicating that the barrel read “Colt Manufacturing Company, Hartford, Ct.” Clay
neither disputes that the government indeed stated this during closing argument nor
does he argue that his attorney argued to the contrary during his closing argument.
Clay first argues on appeal that the statement on the firearm is hearsay, and
thus can not be relied upon to prove the fact the it traveled through interstate
commerce. This evidentiary argument, without objection in the trial court, is
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reviewed on appeal for plain error. See United States v. King, 73 F.3d 1564, 1571
(11th Cir. 1996) (“When, as here, the proper basis for admission is not presented to
the district court, we can review the court’s evidentiary ruling only for plain error.”).
It was not plain error to admit the firearm with the imprint on the handle. See United
States v. Thody, 978 F.2d 625, 630-31 (10th Cir. 1992) (no plain error for hearsay
argument raised first time on appeal by admitting a firearm with manufacturer’s
“Made in Spain” inscription to prove gun’s place of origin for purpose of
demonstrating that weapon traveled in interstate commerce).
We have stated that a weapon which was seized in Florida and “bore an imprint
indicating that it had been manufactured in Atlanta” gave a “clear indication of
interstate commerce.” United States v. Brantley, 68 F.3d 1283, 1288 (11th Cir.
1995); see also United States v. Patterson, 820 F.2d 1524, 1526 (9th Cir. 1987)
(holding that firearm – with manufactured in Miami, Florida inscribed on it – seized
in Los Angeles “could not have made the journey from Miami to Los Angeles without
traveling in interstate commerce”); United States v. Gourley, 835 F.2d 249, 251 (10th
Cir. 1987) (proof that firearm was manufactured outside the state in which the
possession occurred is sufficient to support a finding that the possession was “in or
affected commerce”).
13
In United States v. Coleman, 22 F.3d 126 (7th Cir. 1994), our sister circuit
considered a similar issue raised here and upheld the conviction. In Coleman, the
defendant argued that although a firearm seized in Wisconsin was inscribed, “Stevens
Savage Arms Corporation Chicopee Falls, Mass U.S.A.,” and an ATF expert testified
that “guns are labeled with manufacturer proof marks which identify a weapon’s
place of manufacture,” there was nonetheless insufficient evidence to prove that the
weapon “moved in interstate commerce.” 22 F.3d at 131. In analyzing whether there
was sufficient evidence for the jury to determine beyond a reasonable doubt that the
weapon moved in interstate commerce, the Court explained:
In closing argument, the government explicitly invited the
jury to look at the markings on the guns for proof of
interstate commerce nexus, while Coleman, despite the
testimony of the ATF expert, urged the jury to consider that
the markings may only represent the home office of the
manufacturing corporation and not the actual place of
manufacture. The jury was entitled to inspect the weapon
for themselves and draw the conclusion, based on the ATF
agent’s testimony that the markings were dispositive of
out-of-state production. The record is certainly not barren
of any evidence, regardless of weight, from which the trier
of fact could find [this element] beyond a reasonable doubt.
22 F.3d at 131 (internal quotation and citation omitted).
Here, like Coleman, the government offered a firearm into evidence that had
a marking indicating a name of a manufacturing company, as well as a location of that
14
company. Moreover, the government here, as well as in Coleman, identified these
markings to the jury during closing arguments. Although no witness testified as to
the significance of the markings, no argument was made to the jury that the
inscription on the weapon meant anything but that it was, at one point or another,
located in Hartford, Ct.
Where there was neither an objection made nor a contrary argument made to
the jury, we hold that under the facts and circumstances of this case, a jury could, by
reviewing the inscription “Colt Manufacturing Company, Hartford, Ct.,” coupled with
the evidence that the firearm was seized in Georgia, have “rationally inferred” beyond
a reasonable doubt that the firearm traveled in or at least affected interstate
commerce.
In order to avoid appeals on such a matter which the government suggested at
oral argument was a “non-issue,” because the government bears the burden of proof,
prosecutors would be well advised to offer direct evidence rather than proof by
inference upon which a jury could rely.
AFFIRMED.
15
BARKETT, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority opinion’s affirmance of the district court’s denial of
Clay’s motion to suppress as well as his conviction for possession of at least 50 grams
of cocaine and sentence under 21 U.S.C. § 841(b)(2)(A)(iii). I do not agree, however,
that we should affirm Clay’s conviction for possession of a firearm in violation of 18
U.S.C. § 922(g)(1), because the government failed to meet its burden of producing
evidence that would establish or even provide a reasonable inference, beyond a
reasonable doubt, that the firearm in this case was in or affected interstate commerce.
The sole piece of evidence introduced, the imprint on the revolver’s barrel, merely
gives the name and address of the manufacturer without any indication of where the
gun was actually made. I am aware of no case where this evidence, standing on its
own, has been considered sufficient for establishing the interstate nexus. In each of
the cases cited to by the majority wherein markings on the gun are sufficient, the
imprints explicitly indicate that the gun was made or manufactured in another state
or country. In the one case cited to by the majority where the gun’s imprint only
indicated the manufacturer’s name and address, that evidence was found to be
sufficient where it was corroborated by the testimony of an ATF expert, something
that the government did not provide here. See United States v. Coleman, 22 F.3d 126
(7th Cir. 1994). Moreover, in this case, no evidence was introduced disproving the
16
possibility that the gun was manufactured at a plant in Georgia and never left the
state. Accordingly, I believe that Clay’s firearm conviction must be reversed.
17