United States v. Alberto Duncan ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16825 ELEVENTH CIRCUIT
DECEMBER 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-20394-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO DUNCAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 8, 2009)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Alberto Duncan appeals his convictions for drug and firearm offenses, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1). No reversible error
has been shown; we affirm.
On appeal, Duncan challenges the district court’s denial of his motion to
suppress the drugs and gun discovered in a search of his home. Duncan maintains
that his consent to search was not voluntary and that it was error for the district
court to adopt the magistrate judge’s finding on this point.1 In considering the
district court’s denial of a motion to suppress, we review fact determinations for
clear error and application of law to the facts de novo. United States v. Boyce,
351 F.3d 1102, 1105 (11th Cir. 2003). And we construe all facts in the light most
favorable to the prevailing party -- here, the government. Id.Police officers, possessing neither reasonable suspicion nor probable cause,
may still search a person without a warrant as long as they first obtain the
voluntary consent of the person in question. United States v. Blake, 888 F.2d 795,
1
Duncan also argues that the district court incorrectly applied a clearly erroneous, instead
of de novo, standard of review when reviewing the magistrate’s report. But the court stated that
it had reviewed the report, the transcript of the suppression hearing, and Duncan’s objections:
hallmarks of de novo review. See United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1
(11th Cir. 2009) (a review of a magistrate’s report to which a specific objection has been made
requires de novo review of the record, instead of a de novo examination of the witnesses)
2
798 (11th Cir. 1989). Whether consent is voluntary is a question of fact to be
determined by the totality of the circumstances; and the government bears the
burden of proving both (1) the existence of consent and (2) that the consent was
voluntary and not an acquiescence to a claim of lawful authority. Id.Here, the record reveals that police officers knocked on Duncan’s door,
informed him that they had received a complaint that he was selling drugs out of
his home, and asked him if they could search his home. Duncan denied selling
drugs, but told officers they could search his home. An officer then gave Duncan a
consent-to-search form and explained it to him, including that he could refuse to
allow officers to search; Duncan signed the form.2 No officer threatened Duncan
and Duncan never asked the police to leave. Based on the totality of these
circumstances and construing the facts in the light most favorable to the
government, we cannot say that Duncan’s consent was involuntary.3
2
We discern no plain error in Duncan’s argument (raised for the first time on appeal) that
the consent-to-search form was invalid on its face because it did not state clearly that a search
warrant supported by probable cause was required to search his home and because the form did
not describe adequately the property to be searched.
3
Duncan argues that the district court erred in adopting the magistrate’s credibility
determinations because the court relied on impermissible factors in discrediting his testimony,
including Duncan’s self-interest and use of a translator at the suppression hearing. Even if the
district court relied on impermissible factors, any error was harmless. United States v.
Alexander, 835 F.2d 1406, 1411 (11th Cir. 1988) (applying harmless error review in the context
of the denial of a motion to suppress). Internal inconsistencies existed in Duncan’s
testimony and nothing compelled a rejection of the magistrate’s credibility determination, given
that Duncan’s testimony corroborated the officer’s testimony in material respects. See United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (we accept a credibility
3
As officers searched Duncan’s home, a drug-sniffing dog alerted to an area
of the kitchen cabinet under the sink. On the countertop, officers found a scale,
several small plastic bags, and a cutting agent. In the cabinet, officers found an
aerosol can wedged between the sink’s pipes. Officers determined that the can had
a false bottom; upon opening the false bottom, officers discovered four ounces of
cocaine in it.
Duncan argues that even if he did consent voluntarily, police officers’ use of
the drug-sniffing dog and opening of the false-bottomed can exceeded the scope of
his consent. We disagree. Officers told Duncan they were bringing in a dog, and
Duncan made no objection. At the suppression hearing, Duncan provided no
testimony that contradicted the officer’s testimony that he consented to the use of
the dog. Officers also made clear that they were searching Duncan’s home because
of a complaint that he was selling drugs, and Duncan consented to this search.
Thus, officers were authorized to search containers that might reasonably contain
drugs. See United States v. Martinez, 949 F.2d 1117, 1120-21 (11th Cir. 1992)
(concluding that permission to conduct a general search for drugs includes
permission to search any compartment or container therein that might reasonably
contain drugs). And given the dog’s alert, the close proximity of the can to drug
determination “unless it is contrary to the laws of nature, or is so inconsistent or improbable on
its face that no reasonable factfinder could accept it”) (citation omitted).
4
paraphernalia, and the hidden nature of the can, it was reasonable for officers to
suspect that the can contained drugs.
We now address Duncan’s challenges to the district court’s jury instructions.
Duncan argues that the district court erred in refusing to give an instruction on the
Religious Freedom Restoration Act (“RFRA”) as an affirmative defense to the
section 922(g) charge.4 We review a district court’s refusal to give a jury
instruction for an abuse of discretion. United States v. Lee, 68 F.3d 1267, 1273
(11th Cir. 1995).
The question of whether the RFRA applies is a “pure question of law, and is
subject to de novo review.” Lawson v. Singletary, 85 F.3d 502, 511-12 (11th Cir.
1996) (in the civil context). Moreover, the determination of pure questions of law
in criminal cases are not the province of the jury. See United States v. Gauldin,
115 S.Ct. 2310, 2315 (1995). Because application of the RFRA was a question of
law, we conclude that the district court abused no discretion in declining to submit
the issue to the jury. Because the district court properly denied the requested jury
instruction, we need not address Duncan’s arguments about the applicability of the
RFRA.
4
When officers entered Duncan’s house, they saw -- in plain view -- a gun inside a kettle
that was part of a Santeria shrine. Duncan maintained that he was a practitioner of the African
Yoruba religion and possessed the firearm for one of his shrines as part of his religion. He
argues that section 922(g) substantially burdened the exercise of his religion.
5
Duncan also challenges the district court’s denial of a jury instruction on the
lesser included offense of simple possession. He contends that the quantity of
drugs did not preclude finding that the drugs were for personal use. But the
evidence presented at trial indicated that Duncan possessed more than 100 grams
of cocaine (an amount greater than that normally associated with personal use) and
that Duncan possessed drug paraphernalia. See Lee, 68 F.3d at 1273 (no abuse of
discretion in denying simple possession jury instruction when defendant possessed
16 grams of cocaine in his pocket and evidence showed that he sold cocaine to
distributors); United States v. Pirolli, 743 F.2d 862, 863 n.1 (11th Cir. 1984) (no
simple possession instruction where the amount of cocaine -- over one pound --
was “too great for personal use”). Given the large quantity of drugs and the
additional evidence of drug distribution, the court abused no discretion in
concluding that the evidence was inconsistent with simple possession and denying
the lesser-included offense instruction.
AFFIRMED.5
5
We reject Duncan’s argument that section 922(g) is unconstitutional because the act fails
to require proof of a substantial nexus between the offense and interstate commerce. See United
States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (concluding that section 922(g) was a
valid exercise of Congress’s Commerce Clause power as long as the government showed the
minimal nexus that the firearm moved in interstate commerce).
6