United States v. Michelle Johnson , 290 F. App'x 214 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 3, 2008
No. 07-10283 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20456-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHELLE JOHNSON,
a.k.a. Michelle Felder,
ISAAC JOHNSON,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 3, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Isaac Johnson (“Isaac”) and Michelle Johnson (“Michelle”) appeal their
convictions for: conspiracy to possess with intent to distribute narcotics, 21 U.S.C.
§ 846; possession with intent to distribute narcotics, 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), (b)(1)(D); possession of a firearm in furtherance of a drug-trafficking
crime, 18 U.S.C. §§ 924(c)(1)(A) and (2); being a felon in possession of a firearm,
18 U.S.C. §§ 922(g)(1), 924(e), and (2); and being a felon in possession of body
armor, 18 U.S.C. § 931. On appeal, both Isaac and Michelle argue that: (A) the
district court erred by denying their motion to suppress evidence obtained during
the execution of a search warrant because the warrant violated the particularity
requirement, and because the information contained in the supporting affidavit was
stale; and (B) the evidence was insufficient to sustain their convictions. In
addition, Isaac individually argues that (C) the district court erred by admitting
hearsay statements of a confidential informant who failed to testify at trial.
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we AFFIRM.
I. BACKGROUND
A federal grand jury returned a ten-count indictment against Isaac, Michelle,
and Hermona Butler. Count One charged all three defendants with conspiracy to
possess with intent to distribute cocaine, cocaine base, and marijuana, in violation
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of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and (b)(1)(D). Count Two charged Isaac
with possession with intent to distribute cocaine on 10 November 2005 in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count Three charged Isaac and Butler with
possession with intent to distribute cocaine on November 15, 2005, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. Counts Four and Five
charged all three defendants with possession with intent to distribute cocaine and
cocaine base, respectively, on 1 December 2005 in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. Count Six charged all three
defendants with possession with intent to distribute marijuana on December 1,
2005, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2.
Count Seven charged all three defendants with possession of a firearm in
furtherance of a drug-trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)
and 2. The indictment listed three firearms: a .38 caliber Colt revolver, a 9mm
caliber Beretta pistol, and a 9mm caliber UZI rifle. Count Eight charged Isaac with
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e), and 2. In addition to the three firearms listed above, the indictment also
listed ammunition in this count. Listing the same firearms and ammunition, Count
Nine charged Michelle and Butler with being felons in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 2. Finally, Count Ten charged Isaac and
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Michelle with being felons in possession of body armor, in violation of 18 U.S.C.
§ 931. Butler entered a written plea agreement with the government and is not a
party to this appeal.
Michelle filed a motion to suppress all items seized pursuant to a search of
the premises located at 1475-1479 N.W. 3rd Avenue in Miami, Florida. R1-46, 47.
The basis of the motion was twofold. Relying heavily on Maryland v. Garrison,
480 U.S. 79, 107 S. Ct. 1013 (1987), Michelle first argued that the search warrant
violated the particularity requirement of the Fourth Amendment because it
contained inaccurate and misleading information with respect to the place to be
searched. Specifically, Michelle asserted that the affidavit in support of the
warrant inaccurately described the building at 1475-1479 N.W. 3rd Avenue as a
single apartment with multiple rooms, when in reality, the top floor of the building
contained three different apartments at 1475, 1477, and 1479 N.W. 3rd Avenue.
Michelle stated that this fact should have been known to the affiant because the
front entrance of the building – including three mailboxes – clearly showed the
existence of three separate apartments at these addresses. Michelle also suggested
that the affiant either was extremely careless or deliberately misleading because
only pictures of the rear of the building were attached with the affidavit, whereas a
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picture of the front of the building would have demonstrated the existence of three
separate apartments.
Second, Michelle argued that the information contained in the affidavit was
stale. She observed that the affidavit generally described 2 drug transactions
involving a confidential informant (“CI”) that took place 15 and 20 days before the
search warrant was issued. Michelle asserted that the staleness of this information
was exacerbated by the fact that the affidavit failed to provide information about
precisely where the transactions took place in the building, the reliability of the CI
or his relationship with the seller, a description or identification of the black male
seller or black female who met the CI at the building, whether it was the same
seller in both transactions, and who resided in the apartment building. Based on
those alleged problems, Michelle argued that the affidavit did not contain sufficient
information to establish probable cause. Upon request, the court permitted Isaac to
adopt Michelle’s motion as his own.
At the suppression hearing, the district court found that the warrant was
stated with particularity, stating:
When you take into consideration what was available at that time
together with what the confidential informant advised them. Even
knowing today all these things, I would still say that even in hindsight,
which I think is a tougher test in a way, I would say it’s not only
supported by probable cause. . . . But also stated with particularity.
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And it is my view having seen the evidence that was presented to [the
judge] that had I seen that I would have done exactly what he did.
How the premises were described with particularity. Because in fact
it was one unit or one premise or one apartment, whatever you want to
say, consisting of numerous rooms.
If you are going to describe separate apartments. Let’s say 1475, I
don’t think you would describe that as an area with numerous rooms.
I think the only way you get to numerous rooms is the whole upstairs.
And then you tied in with what the confidential informant said and
how he described these two purchases. One on one side, at one part of
the building, one at the other part of the upstairs of the building. That
appears to me that the whole facility was being used a retail drug
outlet place, with all the guns and things of that nature that was seen.
Plus you got a spotter sitting up there on the outside . . . .
R8 at 92-93. The district court found that, while there may have been three
apartments upstairs at one time, as confirmed by an appraisal, in November 2005
the upstairs area was being used as one apartment unit consisting of a number of
rooms, as provided in the affidavit. Id. at 95. Defense counsel countered that the
affidavit never expressly explained the issue with respect to there being three
separate apartments, and the court disagreed, reiterating that the premise of the
affidavit was that the upstairs was one single apartment and the court found there
to be sufficient evidence to support that premise.
In regard to the staleness issue, the court found that, while there was no
particular formula, the evidence was not stale because a number of cases involved
substantially greater lapses in time. In this respect, the court noted that there were
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only “nine or ten effective work days” that had passed in this case. Id. at 102.
Additionally, the court found that the nature of the crime indicated that there was
an ongoing drug conspiracy that would not relocate after 15 days. Importantly, the
sellers were selling small quantities, the two transactions occurred over a five-day
period, and the operation was not a multi-kilo operation that could afford to
relocate, but was one that needed a semi-permanent location in order for the
customers to find it. The court entered an order denying the motion for the reasons
stated at the hearing. R1-73.
After the presentation of evidence at trial, Isaac and Michelle renewed their
earlier Rule 29 motions based on insufficient evidence. R12 at 59-60. With
respect to Isaac’s motion, the government responded that a police officer saw Isaac
controlling the door to the second floor of the apartment during the two controlled
buys, Isaac was arrested at that location during the execution of the warrant, a
SWAT officer testified that Isaac was within hand’s reach of a big bag of cocaine
and two firearms, and there was other documentary evidence linking him to
narcotics and the bullet-proof vest. The court agreed with the government, finding
the evidence sufficient to take the case to the jury. Id. at 60-61. With respect to
Michelle’s motion, the government pointed out that Florida Power and Light bills
were in her name and that she was present in room “A” next to the guns and drugs
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during her arrest. Defense counsel responded that Michelle was not charged with
providing a dwelling as a narcotics distribution point – a separate federal offense –
and there was no evidence that she was involved in narcotics distribution, but was
merely living at the premises and paying the utilities. The court denied the motion
with respect to Michelle and stated:
I think it’s a little tougher case, but I think if you look at the videos
and photographs it’s pretty obvious the place, in my view the whole of
the second floor, was being used as a repository for illegal drugs.
You would have to be totally incapable – your senses would have to
be totally shut down to not know this was a very active drug
operation. This is not a situation where it was not open and obvious
to everyone.
Add to that the documentary evidence as to her being the one that paid
the utilities, I think the reasonable inferences are sufficient for a jury
to find she was involved in each of these crimes.
I guess there could be an argument this was a mere presence, but I
don’t think it carries the day because of what was shown in the
photographs and video. There were drugs [everywhere], including
under what appears to be a child’s bed or between the mattress and the
box spring. I think I gave my opinion as to how this was used as one
unit.
Id. at 62-63. The jury returned a guilty verdict on all counts against Isaac and
Michelle. Id. at 117-18; R2-85, 86.
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II. DISCUSSION
A. Whether the district court erred by denying the motion to suppress
evidence found during the execution of a search warrant on the grounds
that the search warrant violated the particularity requirement, and that
the information forming the basis of the probable cause determination
was stale.
Isaac argues that the court erred by denying his motion to suppress for two
reasons. First, he argues that the search warrant violated the particularity
requirement of the Fourth Amendment because it inaccurately described the place
to be searched as one apartment rather than three separate apartments. Relying on
Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013 (1987) and United States v.
Ofshe, 817 F.2d 1508 (11th Cir. 1987), he argues that an examination of the front
entrance of the building, the three mailboxes, and the public records should have
made the affiant aware that there were three apartments, and this information
should have been disclosed in the affidavit. Second, he argues that the information
supporting the search warrant was stale because it was based on two drug
transactions that occurred more than two weeks earlier and which were not
described in detail.
Michelle contends that the court erred by confounding the particularity
requirement and the probable cause requirement because they are legally and
factually distinct. She then essentially repeats Isaac’s argument that the search
9
warrant lacked particularity. She notes that, to the extent the court found that there
were not three separate apartments, this factual finding was clearly erroneous.
“A ruling on a motion to suppress presents a mixed question of law and fact.
We review the district court’s findings of fact for clear error and its legal
conclusions de novo. All facts are construed in the light most favorable to the
party prevailing below.” United States v. Virden, 488 F.3d 1317, 1321 (11th Cir.
2007) (citations omitted).
1. The Particularity Requirement
The Warrant Clause of the Fourth Amendment categorically prohibits
the issuance of any warrant except one ‘particularly describing the
place to be searched and the persons or things to be seized.’ The
manifest purpose of this particularity requirement was to prevent
general searches. By limiting the authorization to search to the
specific areas and things for which there is probable cause to search,
the requirement ensures that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit.
Garrison, 480 U.S. at 84, 107 S. Ct. at 1016.
In Garrison, the Court addressed a situation where the police obtained a
search warrant to search a third-floor apartment, believing that there was only a
single apartment on the third floor. 480 U.S. at 80, 107 S. Ct. at 1014. In fact,
there were two apartments on the third floor, and the police, in executing the search
warrant, conducted a search of the second apartment before discovering that it was
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a separate apartment. Id. Acknowledging that the search warrant’s description of
the place to be searched was broader than appropriate, the Court addressed whether
the warrant violated the particularity requirement:
Plainly, if the officers had known, or even if they should have known,
that there were two separate dwelling units on the third floor . . . , they
would have been obligated to exclude respondent’s apartment from
the scope of the requested warrant. But we must judge the
constitutionality of their conduct in light of the information available
to them at the time they acted. . . . The validity of the warrant must
be assessed on the basis of the information that the officers disclosed,
or had a duty to discover and to disclose, to the issuing Magistrate.
Id. at 85, 107 S.Ct. at 1017. Concluding that the warrant was issued validly, the
Court accepted the unanimous conclusion of the state courts that the affiant
reasonably believed that there was only one apartment on the third floor. Id. at 86
n.10, 107 S. Ct. at 1017 n.10. Although the affiant may have been able to ascertain
that there was more than one apartment because the building contained seven
separate units, the record revealed that the affiant physically went to the location
and matched it with the description given to him by an informant, checked with the
electric company and discovered that there was one subscriber on the third floor,
and, using police records, confirmed that the subscriber’s address and physical
description matched the one provided by the informant. Id.
In Ofshe we addressed the validity of a search warrant that targeted one
company located in “multiple use commercial building.” 817 F.2d at 1514. After
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agents executed the warrant, they discovered for the first time that the premises
was subdivided into seven offices, six of which were used by the company named
in the warrant. Id. We upheld the validity of the warrant because the layout of the
office space supported the agents’ belief that all seven units were used by the target
company. Id. In addition to the fact that only one of the seven offices was used by
a separate company, “there was a single, locked entrance to the premises . . . .
controlled by a single receptionist who answered the telephone for all the offices.
The mail was also received centrally and distributed to each office. Thus, the
agents reasonably believed, until they entered the premises, that the office space
belonged” to the target company named in the warrant. Id.
In this case, the Johnsons’s reliance on Garrison and Ofshe is misplaced
because the courts found the warrant accurately described the place to be searched.
In those cases, there were concerns about compliance with the particularity
requirement because the warrants failed to account for the fact that there were
multiple units at the target location. In this case, however, the district court found
that the warrant’s description of the second floor as a single apartment with
numerous rooms was accurate. R8 at 93-96; see R1-58, exh. A at 001, 007. In
other words, the court found that there were not multiple units on the second floor
of the building. R8 at 93-96.
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This factual finding was not clearly erroneous. The court saw photographs
and a videotape of the inside of the second floor, permitting it to conclude,
first-hand, that the upstairs was being used as one residence. The only apartment
number inside the upstairs area was 1479, which apparently had been painted over.
Id. at 68-70. The three separate door buzzers for each of the units had been
dismantled. Id. at 41, 67. The subsequent investigation labeled the apartments by
room letter, without reference to the apartment numbers. R1-58, exh. E at 056-
057. While there was testimony at the suppression hearing indicating that there
may have been three separate apartments at one time – there were three apartment
numbers on the front and rear entrances to the building, three mailboxes, three
broken buzzers, and three separate apartments according to certain public records –
there was no evidence that anyone other than Michelle or Isaac lived or controlled
the upstairs area. See R8 at 41, 59-60, 64-67, 80-83. Indeed, defense counsel
offered FPL bills demonstrating that Michelle was the only subscriber for the
address at 1475, and that there was no subscriber at the 1477 or 1479 addresses.
Id. at 87-88. This fact greatly reduced the risk of a general search, as there was no
indication that non-targets mistakenly would be subject to a search, unlike the non-
target resident in Garrison and the company in Ofshe. See United States v. Ellis,
971 F.2d 701, 703-05 (11th Cir. 1992) (holding that a search warrant describing
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the place to be searched only as “‘the third mobile home on the North side’ of the
road” violated the particularity requirement because it “risked a general search”).
Thus, the court did not clearly err in finding that the entire upstairs was being used
as a single apartment.
Even if Garrison and Ofshe applied, however, the police officer, Manuel
Diaz, reasonably believed that the second floor of the building was a single
apartment at the time he applied for the search warrant. See R8 at 22-23. The
information forming the basis of this belief also confirms that the district court’s
factual finding on the above point was not clearly erroneous. Diaz testified that, in
light of the apartment numbers outside, he specifically asked the CI whether there
were multiple apartments inside, and the CI told him that Isaac controlled the entire
upstairs, and that it was one single apartment rather than multiple units. Id. at 20.
This was consistent with the CI’s account of the two drug transactions, which
occurred in two separate rooms and areas of the second floor, and with the fact that
there was a spotter standing guard in yet another room on the second floor. Id. at
14-15. The fact that Diaz observed one guarded entrance to the second floor, the
access of which appeared to controlled by Isaac, further confirmed the CI’s
account of the second floor as a single apartment unit. See id. at 9, 16, 19-20.
Diaz also testified that he searched the Miami-Dade property website in order to
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determine the correct address. All of this testimony undermines the suggestion that
Diaz deliberately was misleading in the affidavit by failing to include information
suggesting that there were three separate apartments. In any event, while Diaz
could have been more clear in the affidavit with respect to this point, he did include
a reference to, and photograph of, the various apartment numbers on the rear door.
R1-58, exh. A at 001, 009, 010. Diaz also could have performed a more thorough
check of the public records with respect to the address, but his failure to do so does
not render unreasonable his belief that there was one single apartment, especially
in light of the fact that the CI, who went inside the building on two occasions,
specifically told him that was the case. Accordingly, the search warrant did not
violate the particularity requirement.
2. Staleness
To satisfy the probable cause standard, the government must reveal
facts that make it likely that the items being sought are in that place
when the warrant issues. For probable cause to exist, however, the
information supporting of the government’s application for a search
warrant must be timely, for probable cause must exist when the
magistrate judge issues the search warrant. Warrant applications
based upon stale information fail to create a probable cause that
similar or other improper conduct is continuing.
When reviewing staleness challenges we do not apply some talismanic
rule which establishes arbitrary time limitations for presenting
information to a magistrate, rather, we review each case based on the
unique facts presented. In this case-by-case determination we may
consider the maturity of the information, nature of the suspected crime
15
(discrete crimes or ongoing conspiracy), habits of the accused,
character of the items sought, and nature and function of the premises
to be searched.
United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994) (quotations and citations
omitted).
In Harris, we rejected a staleness challenge where the warrant application
alleged an ongoing and continuous drug- and money-laundering operation, even
though most of the information supporting the probable-cause determination
occurred over two years before the warrant was issued. Id. at 450-51. In this case,
Isaac argues that the two controlled drug transactions described in the affidavit
were stale because they were over two weeks old. He does not cite any authority
for this proposition. Indeed, we have rejected staleness challenges involving much
older information. See U.S. v. Bervaldi, 226 F.3d 1256, 1264-67 (11th Cir. 2000)
(6 months); United States v. Hooshmand, 931 F.2d 725, 735-36 (11th Cir. 1991)
(11 months); Domme, 753 F.2d at 953-55 (9 months). Furthermore, in United
States v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994), we summarily rejected a
staleness challenge where the affidavit alleged that a CI had most recently
purchased cocaine the month before the affidavit was submitted.
In addition, and as the above authority makes clear, the district court was
correct to emphasize the nature and location of the criminal activity, finding it to
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be an ongoing drug operation housed in a “semi-permanent” location that was
unlikely to relocate in 15 days. R8 at 102-03. This finding was consistent with our
precedent, as the two drug transactions occurred five days apart in the same
residential apartment, suggesting both the continuous nature of the criminal
activity and the unlikelihood that it would relocate in a mere two weeks. See
Bervaldi, 226 F.3d at 1265. In addition, Isaac cites no authority for his assertion
that the affidavit’s lack of detail made the information more likely to be stale, and,
in any event, there is no question that the description of the two controlled drug
transactions in the affidavit was sufficient to establish probable cause of criminal
activity at the premises. Accordingly, we conclude that the information in the
affidavit was not stale.
Finally, Michelle’s assertion that the district court conflated the particularity
inquiry with the staleness inquiry is incorrect. While the court did address these
issues at the same time during the suppression hearing, the court understood that
these were two separate issues, making distinct findings with respect to each. See
R8 at 92-96, 100-03. Accordingly, we conclude that the district court did not err
by denying the motion to suppress.
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B. Whether sufficient evidence supported each of the Johnsons’s
convictions
Isaac argues that the evidence was insufficient to sustain his convictions
because he never was observed conducting a drug transaction and the CI never was
called as a witness. Isaac contends that he never was specifically identified as
being inside the apartment when he was arrested. He admits that he may be
convicted based on circumstantial evidence, but believes that the evidence,
including the documentary evidence, was insufficient in this case. He notes that he
did not possess any contraband on his person at the time of his arrest and that he
voluntarily submitted a DNA sample to the authorities. He argues that the jury
would have to rely on speculation and conjecture in order to convict him on each
count.
Michelle argues that the evidence was insufficient to sustain her conspiracy
conviction because she was not a willing participant in the drug activity, even
though she might have been a knowing observer of such activity. She contends
that there was no evidence connecting her to the two controlled buys and her
fingerprints were not discovered on any of the evidence. She submits that there
was no testimony regarding her location on the second floor when she was
arrested, which is significant with respect to the firearm counts. She contends that
the utility bills and her job application found during the search did not mean that
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she was a willful participant in the conspiracy or had constructive possession of the
contraband in the apartment. For the same reasons, she argues the evidence was
insufficient with respect to the substantive narcotics-possession counts. With
respect to the firearm counts, she contends that she could not be convicted based
on an actual or constructive possession theory because there was no evidence that
she intended to take control of any of the firearms, particularly the Uzi, which was
concealed.
“We review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds.” United States v. Browne, 505 F.3d 1229, 1253
(11th Cir. 2007) (citation omitted). “In conducting this review, we accept all
reasonable inferences and credibility choices made in the government’s favor, to
determine whether a reasonable trier of fact could find that the evidence establishes
guilt beyond a reasonable doubt.” United States v. Thompson, 422 F.3d 1285,
1290 (11th Cir. 2005) (quotation omitted). “[T]o support a conviction, [the
evidence] need not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” Id. (quotation omitted).
1. Narcotics Convictions
To convict a defendant for conspiracy under 21 U.S.C. § 846, the
government must prove “(1) that a conspiracy existed, (2) that the defendant knew
19
of it, and (3) that the defendant, with knowledge, voluntarily joined it.” United
States v. Garcia, 447 F.3d 1327, 1338 (11th Cir. 2006). “The very nature of
conspiracy frequently requires that the existence of an agreement be proved by
inferences from the conduct of the alleged participants or from circumstantial
evidence of a scheme.” Id. (quotation omitted). “Although mere presence at the
scene of a crime is insufficient to support a conspiracy conviction, presence
nonetheless is a probative factor which the jury may consider in determining
whether a defendant was a knowing and intentional participant in a criminal
scheme.” United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotation
omitted). Indeed, a “conspiracy conviction will be upheld when the circumstances
surrounding a person’s presence at the scene of conspiratorial activity are so
obvious that knowledge of its character can fairly be attributed to him.” Garcia,
447 F.3d at 1338 (quotation omitted).
To sustain a conviction for possession with intent to distribute controlled
substances, “the [g]overnment must prove that the defendant possessed drugs with
the intent to distribute them.” Miranda, 425 F.3d at 959. These elements may be
proven by either direct or circumstantial evidence. Id. However, where the
presence of a large amount of narcotics is undisputed, the proof required to sustain
a conviction for conspiracy to distribute narcotics is also sufficient to uphold a
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conviction for possession with intent to distribute. United States v. Cruz-Valdez,
773 F.2d 1541, 1544 (11th Cir. 1985).
In this case, there was sufficient evidence to sustain Isaac’s convictions for
possession with intent to distribute cocaine on 10 November 2005, and 15
November 2005 as Diaz testified in depth with respect to the two controlled
transactions involving the CI. See R11 at 148-62. Diaz’s testimony demonstrated
that the CI entered the premises on both occasions with Isaac’s authorization and
purchased cocaine from inside the premises. While Isaac is correct that there was
no direct evidence establishing that he sold the cocaine, the circumstantial
evidence, based on Diaz’s testimony alone, was sufficient for a reasonable jury to
find guilt. Miranda, 425 F.3d at 959.
There also was sufficient evidence to sustain Isaac’s conspiracy conviction.
Diaz testified regarding Isaac’s prominent role in the two controlled drug
transactions and his apparent authority over access to the second floor. See R11 at
148-62. A SWAT team member for the Miami police department, Agent McNair,
testified that he discovered a male in room A upon entering the second floor –
which must have been Isaac because he was the only male found at the premises –
the same room containing narcotics and firearms in plain view. See R11 at 74-76,
80-81, 103-04, 164-65; Gov. Exh. A14 at (b)-(i). This room also contained cigar
21
boxes containing cash, Isaac’s driver’s license, and other documentary evidence
with Isaac’s name on it. R11 at 118-22, 125-29. This evidence was sufficient to
permit a jury to conclude that Isaac voluntarily participated in a conspiracy to
distribute narcotics. Furthermore, because there was cocaine, crack cocaine, and
marijuana discovered throughout the house in amounts not consistent with personal
use, and Isaac personally participated in the two controlled buys, there was also
sufficient evidence to sustain his convictions for possession with intent to
distribute these narcotics, as charged in counts Four through Six, respectively.
Cruz-Valdez, 773 F.2d at 1544.
Michelle’s conspiracy conviction also is supported by sufficient evidence.
Her basic argument on appeal is that she was merely present in the apartment as a
knowing observer, but was not a willing participant in the conspiracy. However,
there was evidence that she paid the telephone and electric bills for the second
floor, evidence capable of supporting a jury’s inference that she furthered the
conspiracy. R11 at 129-30; R12 at 46. In addition, a job application in her name
was found in either room A or B, in close proximity to narcotics, firearms, and
drug paraphernalia, some of which were in plain view. This evidence also was
sufficient to permit the jury to infer that Michelle exercised dominion and control
over the residence, and, therefore, was in constructive possession of the narcotics
22
for purposes of the conspiracy charge. See Garcia, 447 F.3d at 1338 (“A person
who owns or exercises dominion and control over a residence in which contraband
is concealed may be deemed to be in constructive possession of the contraband”
for purposes of a conspiracy charge.) (quotation omitted). Significantly, the record
supports the district court’s conclusion that the entire second floor was being used
as one residential repository for drugs, and that, because there were drugs
everywhere, Michelle would have had to have completely “shut down” her senses
in order to remain unaware that there was a very active drug operation going on.
R12 at 62-63. In this respect, it is not particularly helpful to Michelle that the
testimony was unclear as to the precise room where she was discovered during the
execution of the search warrant. See R11 at 163-67. Further, the fact that Michelle
was married to Isaac, the apparent ringleader of the conspiracy, also supports an
inference of her knowing participation in the conspiracy. See Garcia, 447 F.3d at
1338 (“Garcia lived with two conspirators and was related through his
common-law marriage to Cuevas, the ringleader of the conspiracy. It would have
been reasonable to conclude that Garcia’s drug activity was related to the charged
conspiracy.”). Accordingly, although there was no direct evidence of her
involvement in the drug conspiracy, the circumstantial evidence taken in a light
most favorable to the government was sufficient to permit the jury to conclude that
23
she was a knowing participant in the drug conspiracy. Thus, the evidence also was
sufficient to sustain her convictions for possession with intent to distribute cocaine,
crack cocaine, and marijuana. Cruz-Valdez, 773 F.2d at 1544.
2. Firearms Convictions
18 U.S.C. § 922(g)(1) makes it a crime for a felon to possess a firearm.
“With firearms, possession may be either actual or constructive.” United States v.
Thompson, 473 F.3d 1137, 1143 (11th Cir. 2006) (quotation omitted), cert. denied,
127 S. Ct. 2155 (2007). “Like constructive possession of drugs, the government
can establish constructive possession of a firearm by proving ownership, dominion,
or control over the firearm.” Id. (quotation omitted). “[A] person who owns or
exercises dominion and control over a residence in which contraband is concealed
may be deemed to be in constructive possession of the contraband.” United States
v. Molina, 443 F.3d 824, 829 (11th Cir. 2006) (quotation omitted).
Similarly, it is also a crime for a felon to possess body armor if the previous
felony was either a crime of violence under 18 U.S.C. § 16 or an offense under
state law that would constitute a crime of violence under § 16. 18 U.S.C. § 931(a).
“To establish possession of a firearm in furtherance of a drug trafficking
crime [under 18 U.S.C. § 924(c)(1)], there must be some nexus between the
firearm and the drug selling operation.” Thompson, 473 F.3d at 1143. “The nexus
24
between the gun and the drug operation can be established by accessibility of the
firearm, proximity to the drugs or drug profits, and the time and circumstances
under which the gun is found.” Id. (quotations omitted). We have held that the
nexus requirement was satisfied where the firearms were readily available, though
hidden, in the room where drugs were being packaged for sale. Id. at 1143-44. We
have held also that the nexus requirement was satisfied where the firearm was
found in the drawer of the defendant’s nightstand, in close proximity “to the drugs,
digital scales, and [a] large amount of money in the bedroom closets.” Molina, 443
F.3d at 830. Similarly, we held that the nexus requirement was satisfied where
there were numerous loaded firearms and ammunition distributed in different
places in the house and that were easily accessible. United States v. Suarez, 313
F.3d 1287, 1292-93 (11th Cir. 2002).
With respect to the Johnsons’s § 922(g) convictions, the evidence was
sufficient for the jury to conclude that both Isaac and Michelle had constructive
possession over the firearms found in the apartment. As discussed above, there
was evidence establishing that they both exercised dominion and control over the
residence. Thompson, 473 F.3d at 1143. With respect to Isaac, Diaz testified that
he appeared to have sole authority over who was granted access to the second
floor, Isaac’s personal belongings were discovered in the apartment, and Isaac was
25
located in the same room as two firearms in plain view when the search warrant
was executed. With respect to Michelle, she was responsible for paying the utility
bills for the apartment, her job application was located inside the apartment, and
she physically was located inside the apartment when the search warrant was
executed. Furthermore, The parties stipulated that there were firearms discovered
in the apartment, and the firearms had traveled in interstate commerce. R12 at 43-
46. The evidence was sufficient to sustain their § 922(g) convictions.
The evidence also was sufficient for the jury to sustain the Johnsons’s § 931
convictions for being felons in possession of body armor. Although we have never
addressed this particular offense, like § 922(g), it requires that a felon “possess”
body armor. There was testimony that the bullet-proof vest was discovered in
room “E” of the apartment, and, as discussed above, because both Isaac and
Michelle exercised dominion and control over the residence, the jury was permitted
to conclude that they constructively possessed body armor for purposes of § 931.
Furthermore, neither Isaac nor Michelle argue that their previous felony was not a
crime of violence or that the body armor was not transported in interstate
commerce, and, thus, have abandoned any such argument on appeal. United States
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). Accordingly, the evidence
was sufficient to sustain the Johnsons’s § 931 convictions.
26
With respect to the Johnsons’s § 924(c) convictions, and although neither
defendant raises the issue, the evidence was sufficient for the jury to find a nexus
between their constructive possession of the firearms and the drug operation. This
is so because there was a semi-automatic handgun in plain view on the night stand
in room “A”, the bedroom, in close proximity to cocaine in plain view on the bed.
R11 at 74-75. In that same room a revolver, drug packaging material, and
marijuana also were in plain view. R11 at 75-76. Under our caselaw, this
evidence was sufficient for the jury to find a nexus between the firearms and the
drug activity, and therefore, for the jury to sustain the Johnsons’s § 924(c)
convictions. See, e.g., Thompson, 473 F.3d at 1173-74. Therefore, we affirm the
Johnsons’s drug and firearms convictions.
C. Whether the district court abused its discretion by admitting hearsay
statements of a non-testifying confidential informant
Isaac argues that on two unspecified occasions during the trial, the
government improperly elicited testimony from an officer regarding hearsay
statements of the CI. Because the government’s case against Isaac was entirely
circumstantial, he argues that this admission was prejudicial and requires a new
trial. For support, he cites passages from our decision in United States v. Arbolaez,
450 F.3d 1283, 1291-92 (11th Cir. 2006) (per curiam), where we concluded that
the district court impermissibly admitted hearsay statements and there was a
27
violation of the Confrontation Clause. Although we affirmed the convictions in
Arbolaez on harmless-error grounds, Isaac contends that we could not affirm on
that basis in this case because there was not strong, independent evidence of his
guilt.
We review the district court’s admission of evidence for abuse of discretion.
Arbolaez, 450 F.3d at 1289. “The Federal Rules of Evidence define hearsay as ‘a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.’” Id. at 1290
(quoting Fed. R. Evid. 801(c)). “Such hearsay is not admissible except as
provided by the Rules.” Id. (citing Fed. R. Evid. 802).
In Arbolaez, we stated “that testimony as to the details of statements
received by a government agent and later used as the basis for an affidavit in
support of a search warrant, even when purportedly admitted not for the
truthfulness of what the informant said but to show why the agent did what he did
after he received that information, constitutes inadmissible hearsay.” Id. (quotation
omitted). Even if the district court impermissibly admits such hearsay, however,
“to require a new trial a significant possibility must exist that, considering the other
evidence presented by both the prosecution and the defense, the statement had a
substantial impact upon the verdict of the jury.” Id. (quotation omitted).
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“Evidentiary and other nonconstitutional errors do not constitute grounds for
reversal unless there is a reasonable likelihood that they affected the defendant’s
substantial rights; where an error had no substantial influence on the outcome, and
sufficient evidence uninfected by error supports the verdict, reversal is not
warranted.” Id. (quotation omitted).
In this case, Isaac fails to identify the “two occasions” at trial of which he
complains. Nonetheless, it appears from the context of his argument that the
government is correct that he is referring to Diaz’s testimony, as he was the only
witness to be in contact with the CI. The government also properly identifies the
four instances during Diaz’s testimony to which Isaac could be referring. First, on
cross-examination, counsel for Isaac asked Diaz if he knew where the CI went after
he entered he entered the building or from whom, if anyone, he purchased drugs.
R11 at 179. Diaz responded that he had that information based on what the CI told
him. At that point, defense counsel objected and moved to strike the answer, and
the court immediately granted the motion and instructed the jury to disregard the
last question and answer. Id. Thus, even assuming that Diaz’s answer
impermissibly referenced hearsay statements of the CI, the district court did not
admit the statements.
29
Second, in response to Isaac’s counsel’s question whether the upstairs could
be described as three separate apartments, Diaz stated, “Based on the information I
had . . . ,” at which point defense counsel interrupted and clarified his question. Id.
at 182. This incomplete answer did not sufficiently introduce or reference any of
the CI’s hearsay statements.
Third, counsel for Michelle asked Diaz about his description of the man that
gave the CI the narcotics, and, before Diaz could answer, the government objected,
noting that defense counsel again opened the door to what the CI had told Diaz. Id.
at 187. After a sidebar, defense counsel moved on and Diaz never gave an answer
to the question, and, thus, did not introduce any of the CI’s hearsay statements. Id.
at 187-88.
Fourth, on re-direct, the government asked Diaz to answer “yes or no” as to
whether he believed the second floor was one apartment based what the CI told
him, and he answered yes. Id. at 192. Even if this testimony impermissibly
introduced the CI’s hearsay statements, it was harmless. First, evaluated in
context, this specific question was directed at Diaz’s conduct with respect to
obtaining the search warrant and did not constitute direct evidence of Isaac’s guilt
of the crimes charged in the indictment. See id. at 192-93 (following up with
questions concerning Diaz’s actions in obtaining the search warrant). Second, as
30
discussed above, Isaac’s convictions were supported by sufficient evidence
independent of this testimony. Furthermore, not only were his convictions
supported by independent evidence, but other witnesses also independently
testified that they also believed that the second floor was being used as one
apartment. R11 at 89-90, 99-100; R12 at 20. Thus, Isaac’s argument that the error
was not harmless is incorrect. Arbolaez, 450 F.3d at 1290-91.
Moreover, the government is correct that Isaac has not sufficiently raised a
Confrontation Clause challenge on appeal, and, thus, has abandoned this issue.
Cunningham, 161 F.3d at 1344. Accordingly, the district court did not abuse its
discretion on this issue.
III. CONCLUSION
The district court did not err by denying the Johnsons’s suppression motion
because: (1) the search warrant accurately described the premises, and, therefore
did not violate the Fourth Amendment’s particularity requirement; and (2) the
affidavit’s two-week-old information with respect to an ongoing drug operation
was not stale. The record also contains sufficient evidence to support the
Johnsons’s various narcotics and firearms convictions. The district court did not
abuse its discretion by admitting hearsay statements of a confidential informant
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because, to the limited extent such statements were admitted, the admission was
harmless error. AFFIRMED.
32