United States v. Drennen ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4301
MATTHEW LANE DRENNEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-27)
Submitted: March 25, 1997
Decided: September 5, 1997
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John Yeager, Jr., Weirton, West Virginia, for Appellant. William D.
Wilmoth, United States Attorney, Paul T. Camilletti, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Matthew Lane Drennen of the unlawful use of a
communication facility in causing and facilitating a drug felony in
violation of 21 U.S.C. § 843(b) (1994), simple possession of metham-
phetamine in violation of 21 U.S.C. § 844(a) (1994), and being a
felon in possession of a firearm in violation of 18 U.S.C.A. § 922(g)
(West Supp. 1997). Drennen raises four issues on appeal. First he
alleges that conviction on a single count of possession of metham-
phetamine is insufficient to uphold a conviction for use of the mails
to commit drug felonies in violation of 21 U.S.C.§ 843(b). Second,
he argues that he did not validly waive his Miranda rights and the dis-
trict court erred by improperly admitting statements he made after the
alleged waiver. Third, Drennen argues that his consent to search a
duffle bag containing a gun was invalid and he was not sufficiently
in control of the gun for purposes of a conviction for possession of
a firearm by a felon. Finally, Drennen argues that the Government did
not have proper authority to remove a package containing metham-
phetamine from the mails and to hold it for a period of time. For the
reasons below, we affirm.
I
Drennen argues that his conviction on a single count of possession
of methamphetamine is not sufficient to uphold a conviction for "use
of the mails to commit drug felonies," count nineteen as charged in
the indictment. He argues that because he was not found guilty of any
felony distribution or conspiracy charges, but merely an underlying
offense of simple possession, his conviction on the communication
facility charge cannot stand because the statute requires use in the
commission of a felony.
Drennen filed a motion notwithstanding the verdict on the commu-
nications facility charge. The district court denied the motion, relying
on United States v. Powell, 469 U.S. 57 (1984). The court found that,
while the verdicts may be inconsistent, the verdict for count nineteen
must stand. In Powell, the Supreme Court reaffirmed the rule it had
established in Dunn v. United States, 284 U.S. 390 (1932), that a
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criminal defendant convicted by a jury on one count cannot attack
that conviction because the jury's verdict of acquittal on another
count was inconsistent with the conviction. See Powell, 469 U.S. at
64-65.
While this court has not specifically addressed the issue of whether
21 U.S.C. § 843(b) requires a predicate felony conviction, we have
upheld inconsistent verdicts in similar situations. See United States v.
Harriott, 976 F.2d 198, 201-02 (4th Cir. 1992) (upholding convic-
tions for crimes satisfying the subsequent acts requirement of a crime
of which the jury acquitted the defendant); United States v. Tinsley,
800 F.2d 448, 450-51 (4th Cir. 1986) (upholding conspiracy and rack-
eteering convictions even though the jury acquitted the defendant of
the predicate offense charged); United States v. Polowichak, 783 F.2d
410, 417-18 (4th Cir. 1986) (upholding convictions for interstate
travel violations when the jury acquitted the defendants of substantive
acts that the interstate travel was intended to promote).
Drennen relies upon United States v. Dotson, 871 F.2d 1318 (6th
Cir. 1989), amended on rehearing, 895 F.2d 263 (6th Cir. 1990), and
United States v. Johnstone, 856 F.2d 539 (3d Cir. 1988), in making
his argument. In Johnstone, the Third Circuit held that in order to sup-
port a conviction for the illegal use of a communication facility in the
commission of a drug felony, "[t]he occurrence of the underlying drug
felony is a fact necessary to finding a violation of§ 843(b)" and "must
be proved not by a preponderance of the evidence, but beyond a rea-
sonable doubt." Johnstone, 856 F.2d at 543. In Johnstone, the jury
instructions permitted a finding of the underlying drug felony by a
preponderance of the evidence. The Third Circuit reversed the convic-
tions for 21 U.S.C. § 843(b) violations because of the faulty jury
instructions. Id. at 542-46. In Dotson , the Sixth Circuit addressed the
burden of proof issue, but in doing so held that a§ 843(b) violation
requires commission of a predicate drug offense as a fact necessary
to constitute the crime. See Dotson, 871 F.2d at 1321-22.
Drennen also argues that Powell should not apply because it
applies to criminal cases with merely inconsistent verdicts and does
not address the question of whether a conviction under § 843(b)
requires a conviction of an underlying drug felony. Drennen's situa-
tion is very similar to the facts of Powell. Drennen's reliance on the
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Johnstone and Dotson holdings regarding the burden of proof
required for jury instructions is not persuasive in light of Powell, and
the case law in this Circuit. We therefore hold that Drennen's verdict
should stand.
II
Drennen argues that the district court erred by denying his motion
to suppress the statements he made to the agents after his arrest. This
court reviews the district court's ultimate conclusion de novo, but its
factual findings are reviewed for clear error. United States v. Han, 74
F.3d 537, 540 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3807 (U.S. June 3, 1996) (No. 95-8891); United States v. Williams,
10 F.3d 1070, 1077 (4th Cir. 1993).
Drennen's argument relies upon the assertion that he requested
counsel after an agent read him his Miranda rights. At the suppression
hearing before the magistrate judge, Drennen testified that he asked
for a lawyer and that he was forced to give a statement because the
agents threatened to obtain a search warrant for his residence, his
wife's residence, and his place of business. Agent Randolph and
Trooper Kolas testified that Drennen did not request counsel. The
waiver of Miranda rights that Drennen signed states "Do not wish to
talk."
Drennen alleged that when the officers took him into custody one
of them said something to the effect of "I've got you now, scumbag,"
that he was not allowed to leave the area in the post office where he
was interrogated, and that the officers told him that he was in serious
trouble. Inspector Randolph on cross-examination denied calling
Drennen a scumbag and also denied advising Drennen that he would
obtain a search warrant for Drennen's home and business. Trooper
Kolas testified that he never heard anyone discuss a search warrant
for Drennen's home or business. In addition, Drennen did not object
to admission of the statements he made at a second interview almost
a month after his arrest reiterating the details of his first statement or
dispute their voluntariness.
The magistrate judge found that Drennen voluntarily made the
statement and that there was no credible evidence which corroborated
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Drennen's request for counsel or that the officers threatened to obtain
the alleged search warrants. The district court affirmed the recom-
mendation and ruled at trial and again in denying the Fed. R. Crim.
P. 29 motion that the statements were properly admitted. The magis-
trate judge's recommendation clearly made a factual finding that
Drennen did not request counsel.
It is uncontested that Drennen asserted his right to remain silent
after Inspector Randolph read him his Miranda rights. Once that hap-
pened, Miranda required that the officers involved cease interroga-
tion. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). The officers
could reinitiate questioning only if Drennen's right to terminate the
interrogation was "scrupulously honored." Michigan v. Mosley, 423
U.S. 96, 104 (1975). Even after the right to silence has been invoked,
however, an officer may seek identifying information. United States
v. Taylor, 799 F.2d 126, 128 (4th Cir. 1986).
After the defendant invokes the right to silence, an officer may
advise the defendant to reconsider the decision. United States v.
Smith, 608 F.2d 1011, 1014 (4th Cir. 1979). In Smith, the defendant
stated that he did not wish to talk after he had been read his Miranda
rights. He subsequently signed a waiver and made an incriminating
statement. The reconsideration must be "``urged in a careful, non-
coercive manner at not too great length and in the context that a
defendant's assertion of his right not to speak will be honored.'"
Smith, 608 F.2d at 1014 (quoting United States v. Collins, 462 F.2d
792, 797 (2d Cir. 1972)).
Trooper Kolas testified that he advised Drennen to reconsider his
decision to invoke his right to silence. Kolas's discussion regarding
the investigation and potential sentencing consequences was not coer-
cive or lengthy; it was a short, simple explanation of the investigation
and its consequences. Kolas also reiterated that Drennen had a right
to an attorney. We therefore find that Kolas did not violate the
requirements of Smith.
After a thorough review of the record, we find that the district court
did not clearly err or make a mistake of law by admitting the state-
ments.
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III
Drennen's statement of the issue and argument regarding the
search of the bag and seizure of the gun essentially raises three points.
First, Drennen alleges that he did not validly consent to search of the
duffle bag found in the bed of the truck. Second, he alleges that the
search of the bag was not properly incident to arrest. Finally, in his
statement of the issue, Drennen contends that he was not sufficiently
in possession or control of the weapon to violate the prohibition
against a felon possessing a firearm.
Searches and seizures conducted without a warrant are prohibited
by the Fourth Amendment unless a valid exception to the warrant
requirement applies. See Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973). Voluntary consent is an exception to the warrant require-
ment. Id. To determine whether consent to search is voluntarily given,
the totality of the circumstances must be examined. Id. at 233. When
viewing the totality of the circumstances, the characteristics of the
defendant and the circumstances under which the defendant gave con-
sent, and whether the defendant knew that he had a right to refuse
consent should be considered. See United States v. Lattimore, 87 F.3d
647, 650 (4th Cir. 1996).
The voluntariness of the consent is a factual question which is
reviewed by this court only for a finding of clear error. See Lattimore,
87 F.3d at 650. When the lower court bases its ruling on oral testi-
mony heard at a suppression hearing, such as is the case here, the rul-
ing may not be disturbed "unless it can be said that the view of the
evidence taken by the district court is implausible in light of the entire
record." Id. at 651.
After Drennen waived his right to silence and began answering the
officers' questions, Inspector Randolph asked Drennen for permission
to search the bag. Initially, Drennen declined to consent to the search.
After Randolph told him that he would obtain a search warrant for the
bag, Drennen agreed and advised that the officers would find a gun
inside. Before the officers searched the bag, Drennen executed a writ-
ten consent to the search. Drennen acknowledged that he understood
his rights, and initially exercised them. From the trial transcripts it
appears that only Inspector Randolph and Trooper Kolas were present
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when they requested Drennen's consent. Drennen knew that he had
the right to refuse as exhibited by his initial refusal. We find that the
district court did not clearly err in finding that Drennen voluntarily
consented to the search and properly admitted the gun.
In his statement of the issue, Drennen alludes to argument that he
was not sufficiently in possession or control of the gun to be found
as a felon possessing a gun. To the extent that Drennen raises this
issue, it is without merit. "Knowing possession," under the relevant
statutes, may be established by proving that the defendant was in con-
structive possession of a firearm. United States v. Blue, 957 F.2d 106,
107 (4th Cir. 1992). Constructive possession exists when the defen-
dant exercises, or has the power to exercise, dominion and control
over the item, United States v. Laughman, 618 F.2d 1067, 1077 (4th
Cir. 1980), and has knowledge of the item's presence. United States
v. Bell, 954 F.2d 232, 235 (4th Cir. 1992). Knowledge may be
inferred from possession, that is, dominion and control over the area
where the contraband is found. United States v. Lochan, 674 F.2d
960, 966 (1st Cir. 1982).
Drennen exercised dominion and control over the area where the
bag with the gun was located. He placed the drugs next to the bag.
He was alone at the truck and leaning on the side of it beside the bag
and the package containing the drugs. He knew that there was a hand-
gun in the bag as evidenced by his statements to the officers. We find
that this evidence is sufficient to support a conviction under 18 U.S.C.
§ 922(g).
IV
Finally, Drennen alleges that the government did not have proper
authority to remove the package containing the methamphetamine
from the mails and to hold it for a period of time before delivering
it to Drennen. Drennen did not raise this issue before the district
court, and he cannot do so for the first time now on appeal. Singleton
v. Wulff, 428 U.S. 106, 120 (1976); Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993).
Drennen's reply brief raises two additional issues not presented in
his opening brief. An appellant's opening brief must raise all issues
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on appeal and additional issues may not be asserted for the first time
in the reply brief. See Fed. R. App. P. 28; Hunt v. Nuth, 57 F.3d 1327,
1338 (4th Cir. 1995), cert. denied, #6D6D 6D# U.S. ___, 64 U.S.L.W. 3466(U.S. Jan. 8, 1996) (No. 95-6509). Therefore, we decline to review
the additional issues not raised in the opening brief.
We therefore affirm the district court judgment. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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