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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11398
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-00229-CG-B-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JOSEPH W. ROHE, JR.,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(November 16, 2018)
Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Joseph Rohe, Jr. appeals his conviction for possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g). The firearms were found during a
search for drugs and drug paraphernalia executed pursuant to a warrant authorizing
a search of Rohe’s home and the surrounding curtilage. On appeal, Rohe argues
that (1) the district court erred in denying Rohe’s motion to suppress because the
search warrant was not supported by probable cause and (2) the district court erred
in denying Rohe’s motion for a judgment of acquittal because the government did
not present sufficient evidence that Rohe had constructive possession of the
firearms. After review, we affirm.
I.
Rohe first challenges the district court’s denial of his motion to suppress
evidence. Rohe argues that the affidavit filed in support of the warrant did not
establish probable cause because the affidavit contained stale information, and
because the affidavit was too vague and indefinite.
Sergeant Benjamin Taylor’s affidavit in support of a search warrant for
Rohe’s property relied on four pieces of information: (1) several unidentified
sources who stated that Rohe used and sold marijuana and methamphetamine at his
residence, (2) Rohe’s prior history of drug arrests (during which time he was
located at the same residence), (3) a trash pull from Rohe’s garbage conducted
within a month of the affidavit which found plastic baggies with the corners cut
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off, which tested positive for marijuana, and (4) a trash pull from Rohe’s garbage
conducted within 72 hours of Taylor’s affidavit which found plastic baggies with
the corners cut off, which tested positive for methamphetamine. Taylor’s affidavit
also stated that plastic baggies with the corners cut off implied narcotics
distribution. Based on this information, the district court determined that probable
cause existed for the search and denied the motion to suppress.
We review a district court’s denial of a motion to suppress under a mixed
standard, reviewing the district court’s findings of fact for clear error and its
application of the law to those facts de novo. United States v. Bervaldi,
226 F.3d
1256, 1262 (11th Cir. 2000). “Further, when considering a ruling on a motion to
suppress, all facts are construed in the light most favorable to the prevailing party
below.”
Id.
A district court’s determination of probable cause is reviewed de novo.
United States v. Lebowitz,
676 F.3d 1000, 1010 (11th Cir. 2012). “Probable cause
to support a search warrant exists when the totality of the circumstances allow a
conclusion that there is a fair probability of finding contraband or evidence at a
particular location.” United States v. Brundidge,
170 F.3d 1350, 1352 (11th Cir.
1999). A search warrant affidavit “should establish a connection between the
defendant and the residence to be searched and a link between the residence and
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any criminal activity.” United States v. Martin,
297 F.3d 1308, 1314 (11th Cir.
2002).
If an informant is described in an affidavit, the affidavit “must also
demonstrate the informant’s veracity and basis of knowledge” unless “there is
sufficient independent corroboration of an informant’s information . . . .”
Id.
(quotation marks omitted). Finally, stale information is not fatal to a search
warrant affidavit so long as the affidavit “updates, substantiates, or corroborates
the stale material.” United States v. Jiminez,
224 F.3d 1243, 1249 (11th Cir. 2000)
(quotation marks omitted) (holding that a search warrant was supported by
probable cause where the statements regarding the defendant’s past drug arrests
were corroborated by recent information obtained from a wiretap).
Here, the totality of the circumstances supports a finding of probable cause.
The magistrate judge relied not only on the tips from separate sources alleging
drug use and distribution on Rohe’s property and Rohe’s history of drug arrests,
but also two separate trash pulls conducted on Rohe’s property, one of which was
conducted within 72 hours of Taylor’s affidavit. Additionally, while an
informant’s veracity and basis of knowledge must usually be disclosed, such
information is not required where “there is sufficient independent corroboration of
an informant’s information.”
Martin, 297 F.3d at 1314 (quotation marks omitted).
Here, the trash pulls finding residue of marijuana and methamphetamine serve as
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such independent corroboration. Further, to the extent that any information in the
affidavit might have been stale, the second trash pull conducted within 72 hours of
the affidavit substantiated and corroborated the pre-existing information. See
Jiminez, 224 F.3d at 1249.
Because the totality of the circumstances established a “fair probability” that
a search of Rohe’s property would reveal illegal drug distribution, the magistrate
did not err in finding probable cause to support the search. See United States v.
Brundidge,
170 F.3d 1350, 1352 (11th Cir. 1999). Accordingly, the district court
did not err in denying Rohe’s motion to suppress.
II.
Next, Rohe argues the district court erred in denying his motion for a
judgment of acquittal because the government did not present sufficient evidence
that he had constructive possession of the firearms. According to Rohe, the
government failed to present evidence that showed “more than [the] mere
presence” of firearms on his property.
At trial, officers testified that they discovered eight firearms between the
locked shed and the RV on Rohe’s property. Taylor testified that when he asked
Rohe whether he had a key to the shed, Rohe responded that he did, but that the
key was in his wallet at his place of employment. Taylor also testified that he
asked Rohe who put the firearms in the locked shed, and that Rohe admitted that
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he had put them there. The jury also heard two recorded jailhouse calls. In the
first call, between Rohe and his father, Rohe admitted that he knew the guns were
present on his property and said he told the “kids” to get rid of the guns. In the
second call, between Rohe and his wife, Rohe implied that the guns were supposed
to have been removed.
During the trial, Rohe’s extended family members testified in support of
Rohe, and explained that Rohe was not the owner of the guns. One witness, Seth
Dobson, testified that Rohe did not have a key to the RV or shed, and that he, not
Rohe, had placed the guns in the shed. While Dobson initially testified that Rohe
had no knowledge of the guns, Dobson admitted on cross-examination that Rohe
had knowledge of the guns and that Rohe was angry about their presence.
This Court reviews a challenge to the sufficiency of the evidence de novo,
“viewing the evidence in the light most favorable to the government and drawing
all reasonable inferences and credibility choices in favor of the jury's verdict.”
United States v. Taylor,
480 F.3d 1025, 1026 (11th Cir. 2007). We will uphold a
district court’s denial of a motion for a judgment of acquittal “if a reasonable trier
of fact could conclude the evidence established the defendant's guilt beyond a
reasonable doubt.”
Id.
To prove a violation of 18 U.S.C § 922(g)(1), the government must prove
that: (1) the defendant knowingly possessed a firearm; (2) the defendant had
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previously been convicted of an offense punishable by a term of imprisonment
exceeding one year; and (3) the firearm was in or affecting interstate commerce.
United States v. Palma,
511 F.3d 1311, 1315 (11th Cir. 2008). Possession can be
actual or constructive. See United States v. Greer,
440 F.3d 1267, 1271 (11th Cir.
2006). “Constructive possession exists when the defendant exercises ownership,
dominion, or control over the item or has the power and intent to exercise
dominion or control.”
Id.
At trial, the jury heard testimony from the government’s witnesses that Rohe
had access to the shed and had placed the firearms inside the shed. Such access
was sufficient for the jury to find that Rohe had the “dominion or control” over the
shed necessary for constructive possession. See United States v. Martinez,
588
F.2d 495, 498−99 (5th Cir. 1979) (finding sufficient evidence for constructive
possession where the defendant had keys which allowed him to access the
contraband, even where the defendant was not the owner of the contraband).
Although Rohe offered testimony that suggested that he did not have access
to the firearms, we are required to defer to the jury’s reasonable credibility
determinations. See United States v. Pearson,
746 F.2d 787, 794 (11th Cir. 1984).
When we view the evidence in the light most favorable to the United States and
draw all reasonable credibility choices in favor of the jury’s verdict, as we must, a
reasonable trier of fact could have found that Rohe had constructive possession of
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the firearms on his property, and thus fulfilled the elements necessary to sustain a
conviction under 18 U.S.C § 922(g)(1). See United States v. Taylor,
480 F.3d
1025, 1026 (11th Cir. 2007). Accordingly, the district court did not err in denying
Rohe’s motion for judgment of acquittal.
AFFIRMED.
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