United States v. Davis , 242 F. App'x 264 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 18, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-30954
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMMY DAVIS, JR,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Louisiana, Lafayette
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, Sammy Davis, Jr. (Davis), appeals his
conviction for possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). Concluding that the district
court properly denied his motion to suppress and that the evidence
is sufficient to sustain his conviction, we AFFIRM.
I. BACKGROUND
In 1999, Stevie Charlot began buying crack cocaine from Davis
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
and his extended family in Church Point, Louisiana. Charlot
later began working as a paid informant for the Acadia Parish Drug
Task Force (APDTF). On October 22, 2001, Charlot contacted an
APDTF narcotics investigator, Agent Brian Hundley, and informed him
that Davis’s brother, Edward Colomb, was in possession of a large
amount of crack cocaine. Based on this information, the agents
planned to have Charlot conduct a controlled drug transaction that
day at 847 South Broadway, the home of Davis’s mother, Mary Colomb.
Agent Hundley and another APDTF agent took Charlot to a
secluded area near the Colomb residence. The agents gave Charlot
$50 to purchase the drugs and an audio transmitter that was then
hidden in a pack of cigarettes in Charlot’s sock. Charlot
demonstrated that his pockets were empty by turning them inside
out. Charlot and the agents agreed that, after the drug buy, they
would meet at a nearby church.
Charlot exited the vehicle, and the agents observed him walk
to the yard of the Colomb residence but a fence blocked their view
of his entrance into the house. After a few seconds, the agents
heard Mary Colomb’s voice over the transmitter.
Charlot asked to purchase $50 worth of crack (“score a 50"),
and Mary responded that he would have to wait because Edward was
not there. Although Mary patted down Charlot, she did not discover
the transmitter in the cigarette pack. Edward arrived, and the
agents heard his voice over the transmitter. Charlot paid Edward
$50 and left. Charlot met the agents as planned and gave them the
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three rocks of crack and the transmitter.1
The agents then obtained a search warrant for the Colomb
residence and executed it that night. Davis, Mary, Mary’s husband,
and Davis’s sister were at the home when the agents executed the
search warrant. Davis was in a rear bedroom of the house. After
Agent Reginald Guidry escorted Davis from the bedroom to a sofa in
the living room, other agents searched the house. Agent Hebert
found a 16-gauge Mossberg shotgun in a closet in the rear bedroom.
Agent Guidry asked Davis who owned the gun, and Davis admitted that
it was his gun. He also admitted that his bedroom had the shotgun
in the closet.
In May 2002, Davis was charged by indictment with several
counts of trafficking in cocaine and one count of possession of a
firearm by a convicted felon. He pleaded not guilty and filed a
motion to suppress, contending that affiant had deliberately or
recklessly misled the issuing state judge. On August 16, the
magistrate judge conducted a hearing on the motion. On August 22,
the prosecutor sent a letter to defense counsel advising that Agent
Hundley had been mistaken when he testified that the Colomb
residence was surrounded by a privacy fence; instead, it was
surrounded by a chain link fence.
On September 11, the magistrate issued a report recommending
that the motion to suppress be denied. On October 15, Davis filed
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The APDTF paid Charlot for conducting this controlled drug
transaction.
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objections based primarily on Agent Hundley’s mistaken testimony
regarding the fence. As a result of the objections, the magistrate
judge conducted a second evidentiary hearing to determine whether
the mistaken testimony was material and whether it affected the
court’s credibility determination. The magistrate issued a second
report recommending denial of the motion to suppress, concluding
that any errors were immaterial and “innocent and easily
explained.” Over Davis’s objections, the district court adopted
the findings of the magistrate and denied the motion to suppress.
Subsequently, Davis filed a motion to sever the instant charge
of possession of a firearm by a convicted felon from the remaining
five charges in the indictment. Ultimately, the district court
granted the motion to sever. Davis was tried on the sole charge of
possession of a firearm by a convicted felon. After a jury found
him guilty, the district court imposed a 15-month sentence of
imprisonment. Davis appeals.
II. ANALYSIS
A. Motion to Suppress
Davis argues that the district court erred in denying his
motion to suppress. “Our review of a district court’s denial of a
motion to suppress evidence seized pursuant to a warrant is limited
to (1) whether the good-faith exception to the exclusionary rule
applies, and (2) whether the warrant was supported by probable
cause.” United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).
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We need not address the probable cause inquiry if the good-faith
exception applies. Id.Findings of fact are accepted unless clearly erroneous or
based on an incorrect view of the law. United States v. Randall,
887 F.2d 1262, 1265 (5th Cir. 1989). A clearly erroneous finding
is one that is not plausible in light of the record viewed in its
entirety. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985).
Davis asserts that Agent Hundley made material
misrepresentations regarding the informant’s reliability in his
affidavit in support of the search warrant. This Court will uphold
a police officer’s good-faith reliance on a warrant unless “the
issuing-judge was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his
reckless disregard of the truth.” United States v. Mays, 466 F.3d
335, 343 (5th Cir. 2006), cert. denied, 127 S.Ct. 1313 (2007)
(citation and internal quotation marks omitted).
Specifically, Davis asserts that Agent Hundley’s affidavit
indicates that he had past dealings with Charlot that demonstrated
Charlot’s reliability. Davis states that this is belied by Agent
Hundley’s subsequent testimony that this was the first time he
worked with Charlot. As the government responds, although Hundley
testified that this transaction was the first time he had worked
with Charlot, he had learned through another officer about
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Charlot’s reliability on other cases. Indeed, there was evidence
of Charlot’s work as an informant resulting in the seizure of drugs
on other occasions. The district court did not clearly err in
finding no false statements in the affidavit regarding Agent
Hundley’s representation of Charlot’s reliability.
Davis also points to an affidavit and a tape-recorded
statement made by Charlot in which he changed his story, claiming
that he did not buy any drugs at the Colomb residence. However,
the magistrate judge was fully aware of the contradictory
statements made by Charlot. The magistrate judge concluded that
Charlot’s motive for changing his statement was “to keep his cover”
and “insure his safety.” The district court’s credibility
determinations are quite plausible and thus not clearly erroneous.
Additionally, Davis contends that because the affidavit did
not provide that Charlot was a convicted felon and a crack addict,
the affidavit did not provide probable cause. Davis has failed to
show that Agent Hundley’s statements were false or that he had
reckless disregard for the truth. Thus, because Agent Hundley
acted in good faith, we need not reach the inquiry regarding
probable cause. Alix, 86 F.3d at 435. Nonetheless, we find that
there was probable cause in light of the monitored, controlled drug
transaction at the Colomb residence. Cf. Mays, 466 F.3d 343(finding probable cause when informant had made controlled buys at
the residence and officer independently corroborated information
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provided by informant through audio surveillance). The district
court properly denied the motion to suppress.
B. Sufficiency of the Evidence
Davis argues that the evidence is insufficient to sustain his
conviction for felon in possession of a firearm. Davis admitted to
Agent Guidry that it was his gun found in his bedroom closet at his
parents’ house. Nonetheless, Davis contends that his conviction
cannot be sustained on the basis of his uncorroborated confession.
The government asserts, and Davis has not disputed, that no
motion for a judgment of acquittal was made. Thus, we review the
evidence only for a manifest miscarriage of justice. United States
v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). A manifest
miscarriage of justice has been shown where the record is devoid of
evidence pointing to guilt or contains evidence on a key element of
the offense that is so tenuous that a conviction would be shocking.
Id.To obtain a conviction for felon in possession of a firearm,
the government must prove that the defendant (1) has been convicted
of a felony; (2) possessed a firearm in or affecting interstate
commerce; and (3) knew that he was in possession of the firearm.
United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988). The only
element Davis disputes is that he was in possession of the shotgun.
Davis correctly argues that a defendant may not be convicted
based solely on his own uncorroborated confession. United States
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v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). Nonetheless, “[t]he
corroborative evidence alone need not prove the defendant’s guilt
beyond a reasonable doubt, nor even by a preponderance, as long as
there is substantial independent evidence that the offense has been
committed, and the evidence as a whole proves beyond a reasonable
doubt that the defendant is guilty.... [E]xtrinsic proof [is]
sufficient which merely fortifies the truth of the confession,
without independently establishing the crime charged.” Id.(quoting United States v. Garth, 773 F.2d 1469, 1479 (5th Cir.
1985)).
Here, the evidence shows that during the execution of the
search warrant the officers found Davis in a rear bedroom, and the
shotgun was in the closet. Also, there was evidence that Davis
“use[d] the house as [his] own.” Such evidence fortifies Davis’s
confession. We conclude that Davis has not shown that the record
is devoid of evidence pointing to guilt or contains evidence on a
key element of the offense that is so tenuous that a conviction
would be shocking.
The district court’s judgment is AFFIRMED.
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