United States v. Keeo Miller

USCA11 Case: 20-10194 Document: 55-1 Date Filed: 01/11/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10194
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEEO MILLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:18-cr-00169-LGW-CLR-1
____________________
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2 Opinion of the Court 20-10194
Before WILSON, LUCK, and EDMONDSON, Circuit Judges.
PER CURIAM:
Keeo Miller appeals his conviction for being a felon in pos-
session of a firearm, in violation of 18 U.S.C. § 922(g)(1). No re-
versible error has been shown; we affirm.
I.
Miller’s conviction stems from a traffic stop in May 2018. An
undercover officer observed an interaction between a car’s driver
and a passenger: conduct the officer believed was indicative of a
drug deal. Shortly thereafter, the undercover officer saw the driver
-- later identified as Miller -- fail to come to a complete stop at a
stop sign. Because the undercover officer was driving an unmarked
vehicle without lights or a siren, he called over the radio for a uni-
formed officer to conduct a traffic stop.
Detective Foraker – in uniform and with a marked police car
-- initiated the traffic stop. When Detective Foraker approached
Miller’s car, Miller appeared nervous. Detective Foraker also saw
a “large bulge” in the front pocket of Miller’s pants: a bulge Detec-
tive Foraker believed could be a gun. Detective Foraker asked Mil-
ler for his driver’s license. Detective Foraker gave Miller’s license
to a second officer (Detective Smith), who checked for outstanding
warrants while Detective Foraker continued to deal with Miller.
Detective Foraker then ordered Miller to step out of the car.
Miller did not comply immediately. Instead, Miller got out of the
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20-10194 Opinion of the Court 3
car only after being ordered to do so four more times. During this
exchange, Detective Smith advised Detective Foraker that Miller
had an outstanding warrant for Miller’s arrest.
When Miller exited the car, Detective Foraker conducted a
Terry 1 pat-down search of Miller’s person. That the bulge in Mil-
ler’s pocket was actually a gun was “immediately apparent” to De-
tective Foraker. The officers handcuffed Miller and removed the
gun from his pocket. Miller was placed under arrest.
A federal grand jury indicted Miller for being a felon in pos-
session of a firearm. Miller pleaded not guilty and proceeded to a
jury trial. Following a one-day trial, the jury found Miller guilty.
Miller moved for a judgment of acquittal and, alternatively,
for a new trial. Miller raised two arguments: (1) that the govern-
ment failed to prove that Miller had “knowingly possessed” a fire-
arm; and (2) that the failure of Miller’s lawyer to move to suppress
the firearm constituted ineffective assistance of counsel.
The district court denied Miller’s motion. The district court
determined that the evidence presented at trial was sufficient to
support a finding that Miller possessed knowingly the firearm. The
district court also declined to address Miller’s ineffective-assistance-
of-counsel claim, explaining that such claims should be raised in a
1 Terry v. Ohio, 392 U.S. 1 (1968).
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4 Opinion of the Court 20-10194
28 U.S.C. § 2255 motion. The district court later sentenced Miller
to 115 months’ imprisonment. This appeal followed.
II.
A.
On appeal, Miller first challenges the lawfulness of the initial
traffic stop, the duration of the traffic stop, and the pat-down search
that led to the seizure of the gun found in Miller’s pocket. Given
these purported Fourth Amendment violations, Miller contends
the gun should have been excluded from evidence.
The Federal Rules of Criminal Procedure provide that a mo-
tion to suppress evidence “must” be made before trial. See Fed. R.
Crim. P. 12(b)(3)(C). When a party fails to file a timely motion
under Rule 12(b)(3), a court may consider arguments about sup-
pression upon a showing of “good cause.” See Fed. R. Crim. P.
12(c)(3). We have said that no good cause exists to excuse an un-
timely suppression motion when “the defendant had all the infor-
mation necessary to bring a Rule 12(b) motion before the date set
for pretrial motions, but failed to file it by that date.” See United
States v. Curbelo, 726 F.3d 1260, 1266-67 (11th Cir. 2013) (in the
context of applying an earlier version of Rule 12).
Miller filed no pre-trial motion to suppress the gun seized
during the traffic stop. Nor did Miller object to the admissibility of
the gun into evidence at trial. On appeal, Miller offers no argument
that good cause exists that might excuse his failure to raise timely
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20-10194 Opinion of the Court 5
arguments about suppression. 2 Miller had available to him all the
pertinent information necessary to raise his Fourth Amendment ar-
guments before trial and failed to do so. Because Miller has demon-
strated no good cause, we decline to consider Miller’s untimely-
raised Fourth Amendment challenges to the traffic stop and to the
pat-down search. 3
2 In his motion for a new trial in the district court, Miller argued that his law-
yer’s failure to move to suppress the gun constituted ineffective assistance of
counsel. Miller makes no assertion on appeal that his lawyer’s alleged ineffec-
tive assistance constituted good cause. Nor would we likely address such an
argument at this stage of the proceedings. See United States v. Nix, 438 F.3d
1284, 1288 (11th Cir. 2006) (declining to consider on direct appeal a defendant’s
argument that his trial lawyer’s failure to move to suppress the gun seized in
that case constituted ineffective assistance); United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002) (“We will not generally consider claims of ineffec-
tive assistance of counsel raised on direct appeal where the district court did
not entertain the claim nor develop a factual record.”).
3 Even if we were to consider the merits of Miller’s Fourth Amendment argu-
ments, those arguments would seem to fail. Reasonable suspicion existed to
initiate the traffic stop based on the undisputed evidence that Miller failed to
come to a complete stop at a stop sign. See United States v. Campbell, 26 F.4th
860, 880 (11th Cir. 2022) (en banc) (explaining that “[e]ven minor traffic viola-
tions qualify as criminal activity” that give rise to reasonable suspicion to make
a traffic stop).
The record also demonstrates that -- before probable cause arose to
arrest Miller based on the outstanding arrest warrant and the discovery of Mil-
ler’s gun -- the officers made no inquiries and performed no tasks unrelated to
the traffic stop that extended impermissibly the duration of the stop. See id.
at 884 (“[A] stop is unlawfully prolonged when an officer, without reasonable
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6 Opinion of the Court 20-10194
B.
Miller next challenges the district court’s denial of his post-
trial motion for judgment of acquittal.
“We review de novo a district court’s denial of judgment of
acquittal on sufficiency of evidence grounds.” United States v. Ro-
driguez, 732 F.3d 1299, 1303 (11th Cir. 2013). In determining the
sufficiency of the evidence, “we consider the evidence in the light
most favorable to the government, drawing all reasonable infer-
ences and credibility choices in the government’s favor.” Id. We
cannot overturn a jury’s verdict unless no “reasonable construction
of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” Id.suspicion, diverts from the stop’s purpose and adds time to the stop in order
to investigate other crimes.”).
Also, the totality of the circumstances involved in this case -- including
that Miller had just engaged in conduct indicative of drug-trafficking, that Mil-
ler had a visible bulge in his front pocket, and that Miller appeared nervous
and was hesitant to exit the car despite repeated orders to do so -- gave rise to
reasonable suspicion that Miller might be armed and, thus, justified a pat-
down search of Miller’s person for officer safety. See United States v. Bishop,
940 F.3d 1242, 1248-49 (11th Cir. 2019) (concluding that the defendant’s “non-
compliance, argumentativeness, and nervous, agitated behavior following
lawful orders to exit the truck would cause a reasonably prudent officer in the
circumstances to believe that his safety or that of his fellow officers was in
danger”); United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (noting
that “the presence of a visible, suspicious bulge on an individual may be con-
sidered in the totality of the circumstances” when determining whether a stop-
and-frisk was supported by reasonable suspicion).
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20-10194 Opinion of the Court 7
To obtain a conviction under section 922(g), “the govern-
ment must prove all of the following elements: (1) the defendant
knew he possessed (2) a ‘firearm’ . . . that (3) had traveled in inter-
state commerce, and” (4) the defendant knew of his status as a
felon. See United States v. Johnson, 981 F.3d 1171, 1179 (11th Cir.
2020); see also Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019)
(“[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the
Government must prove both that the defendant knew he pos-
sessed a firearm and that he knew he belonged to the relevant cat-
egory of persons barred from possessing a firearm.”).
On appeal, Miller does not identify expressly which of these
elements the government purportedly failed to prove. Viewed in
the light most favorable to the government, the evidence presented
at trial was sufficient to permit a reasonable factfinder to find Miller
guilty beyond a reasonable doubt of the charged offense.
The evidence was sufficient for the jury to conclude that Mil-
ler possessed knowingly the gun. At trial, two officers testified that
they found a gun in the front pocket of Miller’s pants: testimony
that was corroborated by a video recording of the pat-down search.
The government also presented Miller’s post-Miranda 4 statement
that he acquired the gun about a month before this incident.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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8 Opinion of the Court 20-10194
The government also produced witness testimony that the
gun was manufactured in Maryland and, thus, had moved in inter-
state commerce to travel to Georgia.
Miller also stipulated that he had a 2008 felony conviction
for unlawful possession of a firearm by a felon. This evidence was
sufficient to support a finding that Miller knew of his status as a
felon when he possessed the gun in 2018.
Because the evidence produced at trial was sufficient to al-
low the jury to find Miller guilty beyond a reasonable doubt, the
district court committed no error in denying Miller’s motion for
judgment of acquittal.
AFFIRMED.