United States v. Springfield

F I L E D
United States Court of Appeals
Tenth Circuit

NOV 17 1999
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee/
Cross - Appellant,
Nos. 98-8093 & 98-8103
v.

FRANCIS EDWARD SPRINGFIELD,

Defendant - Appellant/
Cross - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 98-CR-051-01-B)

James H. Barrett, Assistant Federal Public Defender, Cheyenne, Wyoming,
appearing for Appellant/Cross-Appellee.

Sean Connelly, Attorney, United States Department of Justice, Denver, Colorado
(David D. Freudenthal, United States Attorney, and John R. Green, Assistant
United States Attorney, District of Wyoming, Cheyenne, Wyoming, with him on
the brief), appearing for Appellee/Cross-Appellant.

Before TACHA , McKAY , and HENRY , Circuit Judges.

TACHA , Circuit Judge.

Defendant Springfield appeals his conviction for (1) possession with intent
to distribute methamphetamine and aiding and abetting in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, (2) carrying a firearm during a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), (3) being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and (4) being a

felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). He

argues that the district court erred in denying his motion to suppress. He further

claims that sufficient evidence did not exist for a jury to convict him of any of the

charges. The government cross-appeals the district court’s decision not to

sentence the defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e),

and armed career criminal sentencing guideline, U.S. Sentencing Guidelines

Manual § 4B1.4.

We have jurisdiction over defendant’s appeal pursuant to 28 U.S.C. § 1291

and over the government’s cross-appeal pursuant to 18 U.S.C. § 3742(b). We

AFFIRM in part and REVERSE in part.

I. Defendant’s Appeal

A. Background

Around midnight on February 15, 1998, police officer Rod Gates

encountered a brown van with Montana plates traveling about thirty miles per

hour. Two passengers in the rear of the van, defendant and Shannon Old Elk,

repeatedly looked back at Gates as he followed the van. Gates requested a

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registration check on the Montana plates and learned that they were registered to

a different vehicle. While he was waiting for the registration check to be

completed, Gates observed that the defendant and Old Elk were reaching over and

under the seat and continued to look back at him. Once Gates learned that the van

did not have valid plates, he activated his emergency lights. The van continued at

the same speed for approximately two blocks while defendant and Old Elk

reached under and around the seat in a more exaggerated manner than they had

before.

After the van pulled over, Gates approached the van and explained to the

driver, Edward Notafraid, why he had stopped the vehicle. Cheney Springfield

and Mark Nomee were seated beside Notafraid in the front of the van. Old Elk

sat behind the passenger side of the van, while defendant sat behind the driver’s

side of the van. A subsequent search of the van, pursuant to Notafraid’s

voluntary consent, revealed drugs, drug paraphernalia and a gun. Specifically,

Gates found a segment of PVC pipe and 19.68 grams of methamphetamine in a

shopping bag on the rear passenger side floor to the right of where Old Elk had

been sitting. Another officer found a Colt 9 millimeter semi-automatic pistol in a

woman’s drawstring purse on the rear floor directly in front of where defendant

had been seated.

After Gates discovered the methamphetamine, he asked the occupants of

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the van who the drugs belonged to. Notafraid, Cheney Springfield, Nomee and

Old Elk all stared at defendant, while defendant looked down. Shortly thereafter,

one of the officers recognized defendant as a convicted violent offender. The

officers eventually arrested all of the van’s occupants and transported them to the

county jail. When Gates mirandized and questioned Old Elk at the scene, she

claimed that the drugs and the gun belonged to her. At the jail, she again claimed

that the drugs belonged to her.

One of the officers searched defendant at the jail and discovered trace

amounts of methamphetamine and five rounds of 9 millimeter ammunition. The

same type of ammunition was loaded in the gun found in the purse, and one of the

cartridges found in defendant’s pocket appeared, from ballistics review, to have

been cycled previously through the gun.

B. Probable Cause to Arrest

Defendant asserts that the district court erred in denying his motion to

suppress the evidence discovered after he was arrested. He claims the police did

not have probable cause to arrest him and, therefore, the ammunition and drugs

found on his person following his arrest should have been suppressed. In

reviewing the denial of a motion to suppress, we must accept the district court’s

factual findings unless they are clearly erroneous and we view the evidence in the

light most favorable to the prevailing party. United States v. Vazquez-Pulido ,

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155 F.3d 1213, 1216 (10th Cir.), cert. denied , 119 S. Ct. 437 (1998). However,

we review de novo the legal issue of whether the police had probable cause to

arrest defendant. United States v. Dozal , 173 F.3d 787, 792 (10th Cir. 1999).

“‘Probable cause to arrest exists when an officer has learned of facts and

circumstances through reasonably trustworthy information that would lead a

reasonable person to believe that an offense has been or is being committed by the

person arrested.’” Vazquez-Pulido , 155 F.3d at 1216 (quoting United States v.

Guerrero-Hernandez , 95 F.3d 983, 986 (10th Cir. 1996)). We determine whether

probable cause to arrest exists based on the totality of the circumstances. Id.

While probable cause to arrest “does not require facts sufficient to establish guilt,

[it] does require more than mere suspicion.” Id.

Defendant maintains that at the time of his arrest, the police had no

evidence that he was connected in any way to the drugs or the gun. He argues,

therefore, that the police arrested him solely because of his proximity to criminal

activity. We agree with defendant that “nearness to the place of the arrest of a

co-conspirator or to the place of illegal activity” is not sufficient to establish

probable cause. Id. However, defendant was not arrested merely because he was

present at the scene of a crime.

According to the district court, the police knew the following facts at the

time of defendant’s arrest: (1) defendant engaged in furtive actions in the rear of

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the van as Officer Gates followed the vehicle, (2) defendant was a passenger in a

vehicle with invalid tags, (3) the police found drugs and a gun in defendant’s

vicinity within the van, (4) the other occupants of the van looked to defendant for

guidance and followed his lead, and (5) defendant was a violent felon. The

district court concluded that it was logical for the police to infer that defendant’s

furtive actions were attempts to conceal the contraband located near him in the

van. The district court also found that it was reasonable for the police to assume

defendant was tied to the contraband because the van’s other occupants deferred

to him and he was a known violent criminal.

From the totality of the circumstances, we hold that the arresting officers

could reasonably infer a connection between defendant and the drugs and gun

found in the van. Thus, viewing the evidence in the light most favorable to the

government, we agree with the district court that the police had probable cause to

arrest defendant. Consequently, we affirm the district court’s denial of

defendant’s motion to suppress.

C. Sufficiency of the Evidence

Defendant argues that the government introduced insufficient evidence at

trial to support his convictions for possession of narcotics with the intent to

distribute, carrying a firearm during a drug offense, and being a felon in

possession of a firearm. He asserts that no rational trier of fact could have found

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that he knowingly possessed the drugs and gun found in the van. Furthermore,

defendant claims that the government lacked sufficient evidence to convict him of

being a felon in possession of ammunition. He contends that the ammunition

found on his person was the fruit of an unlawful arrest and, therefore, was

inadmissible at trial.

We review sufficiency of the evidence claims de novo, asking “‘only

whether, taking the evidence -- both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom -- in the light most favorable to the

government, a reasonable jury could find [Defendant] guilty beyond a reasonable

doubt.’” United States v. Jenkins , 175 F.3d 1208, 1215 (10th Cir.), cert. denied ,

__ S. Ct. __, 1999 WL 623883 (1999) (quoting United States v. Voss , 82 F.3d

1521, 1524-25 (10th Cir. 1996)). To determine whether the evidence is sufficient,

we consider the inferences that can be drawn from the evidence as a whole. Id.

We do not “question the jury’s credibility determinations or its conclusions about

the weight of the evidence.” United States v. Lazcano-Villalobos , 175 F.3d 838,

843 (10th Cir. 1999).

1. Possession of the Drugs and Gun

The government argues that it presented sufficient evidence from which a

jury could conclude that defendant constructively possessed the drugs and gun.

“A person constructively possesses contraband when he or she knowingly holds

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ownership, dominion or control over the object and premises where it is found.”

Lazcano-Villalobos , 175 F.3d at 843. A defendant’s exclusive possession of the

object or premises “may support an inference of constructive possession,” but

joint occupancy of the object or premises “cannot sustain such an inference.” Id.

“To prove constructive possession where there is joint occupancy, the government

must present direct or circumstantial evidence to show some connection or nexus

individually linking [defendant] to the contraband.” Id. In other words, the

government must offer evidence that supports “at least a plausible inference [that

defendant] knew of the contraband.” Id.

Here, defendant jointly occupied the van with four other occupants.

Nevertheless, ample evidence exists from which a jury could have found

defendant knew of the drugs and gun in the vehicle. First, defendant engaged in

furtive actions in the rear of the van as Officer Gates followed the vehicle.

Second, both the drugs and the gun were found in the rear of the van close to

where defendant had been seated. Third, the police found trace amounts of

methamphetamine in defendant’s jacket. Fourth, the gun was a 9 millimeter colt

pistol and the police found five rounds of 9 millimeter ammunition on the

defendant. Finally, one of the bullets defendant was carrying appeared to have

been cycled previously through the gun.

Thus, viewing the evidence in the light most favorable to the government,

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sufficient evidence exists to support the jury’s convictions of defendant for

possession of narcotics with the intent to distribute, carrying a firearm during a

drug offense, and being a felon in possession of a firearm. The government

presented evidence supporting at least a plausible inference that defendant

constructively possessed the drugs and gun in the van.

2. Possession of Ammunition

Defendant’s argument that the ammunition found on his person was

inadmissible at trial as the fruit of an unlawful arrest is meritless. As we held

above, the police had probable cause to arrest defendant. Consequently, the

police discovered the ammunition pursuant to a legal search and the government

properly introduced it at trial. Thus, sufficient evidence exists to support the

jury’s conviction of defendant for being a felon in possession of ammunition

II. Government’s Cross-Appeal

The government argues that the district court committed legal error when it

refused to sentence defendant as an armed career criminal under 18 U.S.C.

§ 924(e), the Armed Career Criminal Act (ACCA). Section 924(e)(1) provides

that a defendant who has three or more prior violent felony convictions and

subsequently is convicted under § 922(g) shall be imprisoned for at least 15 years

and may not receive a suspended sentence or probation.

The government contends that defendant qualifies as an armed career

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criminal because he previously has been convicted of at least three violent

felonies: (1) escape from a prison honor camp, (2) involuntary manslaughter and

use of a firearm during and in relation to a crime of violence, and (3) assault and

battery while armed with a dangerous weapon. Defendant maintains that he does

not have three prior violent felony convictions because his prison escape was

nonviolent and a jury convicted him pursuant to a Wyoming statute that dealt with

nonviolent escape from custody. Agreeing with defendant, the district court ruled

that defendant’s “walkaway” from a prison honor camp did not constitute a

violent felony. Thus, the district court found that defendant did not qualify as an

armed career criminal. We disagree.

The ACCA defines “violent felony,” in pertinent part, as any felony offense

which “involves conduct that presents a serious potential risk of physical injury to

another.” Id. § 924(e)(2)(B)(ii). We have held categorically that “an escape

always constitutes ‘conduct that presents a serious potential risk of physical injury

to another,’ for the purposes of the [ACCA] as well as for the career offender

provisions of the sentencing guidelines.” United States v. Moudy , 132 F.3d 618,

620 (10th Cir.), cert. denied , 118 S. Ct. 1334 (1998); see United States v.

Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997), cert. denied , 118 S. Ct. 726

(1998); United States v. Gosling , 39 F.3d 1140, 1142-43 (10th Cir. 1994). Thus,

under the ACCA and the United States Sentencing Guidelines, escape is always a

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violent crime. It is irrelevant whether the escape actually involved any violence

or whether defendant was convicted under a state statute that defines escape as a

nonviolent offense. Accordingly, we remand this case. On remand, the district

court shall apply the armed career criminal guidelines pursuant to 18 U.S.C.

§ 924(e) when calculating defendant’s sentence.

AFFIRMED IN PART and REVERSED IN PART.

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Nos. 98-8093 & 98-8103, United States v. Springfield

McKAY , Circuit Judge, concurring:

While I join in the result, I reserve judgment as to whether we should treat

as violent for purposes of 18 U.S.C. § 924(e)(2)(B), a felony which the state

creating the felony has defined as non-violent. The record in this case does not

support a finding that Defendant was convicted under the non-violent escape

section of Wyoming state law. Absent such a showing, I agree that we should

reverse the district court’s ruling that § 924(e) did not apply because the record

does show that Defendant was convicted of unauthorized departure from actual

custody. I do not join, however, in our broad dictum stating as “irrelevant”

whether “defendant was convicted under a state statute that defines escape as a

nonviolent offense,” Maj. Op. at 11, when there is no showing of actual violence.

Elsewhere I have reviewed state law that often defines failure to return from work

release or other inmate release program as felony escape. In that brief concurring

opinion, I noted that “there is a quantum difference between the assumptions

about the intrinsic danger of unauthorized departure from actual custody . . . and

of failure to return from authorized departure from actual custody.” United States

v. Adkins , No. 98-3322 (10th Cir. Nov. 12, 1999) (McKay, J., concurring). I do

not believe that under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and

the United States Sentencing Guidelines, escape is necessarily always a violent
crime. I believe we should use more care before sweeping into law a statutory

interpretation which the text does not support.

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