TJOFLAT, Circuit Judge:
On July 17, 2012, a jury convicted Jack Bruce Folk, a previously convicted felon, of knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1),
The firearms seizure that Folk challenges in this appeal was made by Palm Beach County Sheriff's Office deputies pursuant to a warrant issued by a Palm Beach County Circuit Judge. Folk does not challenge the issuance of the warrant. Instead, his argument — made first to the District Court and again on appeal — is that the seizure was not authorized either under the scope of the search warrant or pursuant to the plain view doctrine and therefore that it violated his Fourth Amendment rights.
The District Court denied Folk's motion to suppress following a de novo review of the Report and Recommendation of the Magistrate Judge to whom it referred Folk's motion. The Magistrate Judge based his recommendation that the motion be denied on the language of the warrant and on the testimony of a deputy in the Palm Beach Sheriff's Office, David Vitola, who applied for the warrant and was present while it was being executed.
Vitola testified that during the early months of 2009, he was operating undercover as an officer in the Sheriff's Office Narcotics Division. During that time, he made three purchases of Oxycodone — a schedule II narcotic used for the relief of moderate to severe pain — from Nicholas Brandow, a seventeen year old minor. Nicholas lived with both his mother, Cheryl Brandow, and with Folk at 15544 86th Road, in Loxahatchee, Florida.
Vitola knew about Folk before he bought the Oxycodone from Nicholas. Prior to working in the Narcotics Division, Vitola had been assigned to the Tactical
The search warrant was issued on March 25, 2009, on Vitola's application. The warrant authorized a search of the 86th Road residence and its curtilage in order to uncover and seize
The warrant was executed on April 1, 2009. Vitola was a member of the search team, but he initially remained outside the residence while the Sheriff's Office SWAT team entered to make a protective sweep. During the sweep, one of the SWAT members, Deputy Jairo Gomez, noticed two firearms located in the master bedroom closet. Gomez did not disturb the firearms, but he did notify Vitola of their location. When Vitola entered the master bedroom looking for drugs, he surmised that it was where Folk and Cheryl Brandow slept. Several photographs of the two were visible around the room, and six empty pill bottles were found: two were prescribed to Cheryl Brandow — both for Oxycodone — and four were prescribed to Jack Folk — one for Oxycodone, one for Xanax,
In the master bedroom closet, Vitola observed the firearms Gomez had described, a rifle and a shotgun. They were leaning against the right-hand wall with the stocks on the floor and the barrels pointed up. He assumed they belonged to Folk rather than Cheryl Brandow because they appeared to him "to be more hunting, sport-type weapons." Doc. 74, at 30:8. In and of themselves, the firearms did not appear to be illegal, but Vitola knew that Folk was a convicted felon who could not legally possess them. Vitola seized both firearms.
On February 16, 2012, a Southern District of Florida grand jury returned the
In response, the Government argued that the firearms were tools of the drug trade, and as such, they fell under the warrant's authorization to seize "[i]tems used in the packaging or production of narcotics." The Government argued, alternatively, that the plain view doctrine authorized the seizure of the firearms because Deputy Gomez had observed them in plain view during the protective sweep, and the incriminating nature of the firearms was readily apparent to Vitola, who knew that Folk was a convicted felon.
The Magistrate Judge issued a Report and Recommendation recommending that Folk's motion be denied "based upon the well-recognized connection between firearms and drug-related activity." Doc. 36, at 5. In the Magistrate Judge's view, implicit in the text of the warrant — which authorized the seizure of drug-related items — was an authorization to seize the firearms. Having reached this conclusion, the Magistrate Judge did not consider the Government's alternative argument for denying Folk's motion — the plain view doctrine. The District Court adopted the Magistrate Judge's recommendation in full and denied Folk's motion to suppress.
In his brief on appeal, Folks relies on the same arguments he presented to the District Court: (1) the firearms were outside the scope of the search warrant; and (2) the plain view doctrine did not justify their seizure.
"Review of a district court's denial of a motion to suppress is a mixed question of law and fact." United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir.2007). Accordingly, "[w]e review de novo the district court's application of the law to the facts," and "[w]e review factual findings only for clear error, construing all facts in the light most favorable to the prevailing party below." United States v. Bennett, 555 F.3d 962, 964-65 (11th Cir.2009).
First, we consider Folk's argument that the firearms fell outside the scope of the warrant. This circuit has routinely recognized that firearms can be so connected to the sale of narcotics that their seizure is implicitly authorized by a warrant to search for narcotics. See, e.g., United States v. Prather, 279 Fed.Appx. 761, 766 (11th Cir.2008) (unpublished) ("When law enforcement officers stumble across hidden guns during a lawful search for drugs, they are allowed to draw the reasonable inference that the guns may be related to drug trafficking occurring at the location."); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir.1990) ("The firearms were not improperly seized, though not named in the warrant. They are `tools of the drug trade.'"); United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir.1990) ("It is uniformly recognized that weapons are often as much `tools of the trade' as the most commonly recognized narcotics paraphernalia."); United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986) ("Of course, numerous cases have
Despite this recognized connection between drugs and firearms, the facts in this case give us pause. Vitola admitted that he had no suspicion that Nicholas Brandow was armed while he engaged in his drug transactions or that he was storing firearms in his residence. When he saw the firearms, Vitola believed they were probably used for hunting rather than as tools of the drug trade. The small scale of Nicholas Brandow's observed drug transactions further differentiates them from larger operations, where the ownership and use of firearms can be more readily inferred. See United States v. Perez, 648 F.2d 219, 224 (5th Cir.1981) ("[E]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent that they keep scales, glassine bags ..., cutting equipment, and other narcotic equipment.") (emphasis added) (citation omitted) (internal quotation marks omitted).
Ultimately, we need not address whether the search warrant implied authorization to seize the firearms because we hold that the seizure was valid under the plain view doctrine.
Under the plain view doctrine, the warrantless seizure of an item is permissible where "(1) an officer is lawfully located in the place from which the seized object could be plainly viewed and must have a lawful right of access to the object itself; and (2) the incriminating character of the item is immediately apparent." United States v. Smith, 459 F.3d 1276, 1290 (11th Cir.2006) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990)); see also United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir.2001) (explaining that an officer "may seize any contraband, including weapons, in plain view"). The seizure of Folk's firearms satisfied both of these prongs.
First, the shotgun and the rifle — which were inside the master bedroom closet — were lawfully observed during the SWAT team's protective sweep and Vitola's search for narcotics. Folk does not challenge the warrant's validity or the deputies' authority to search the residence for prescription drugs. The SWAT team and Vitola, therefore, had the right to conduct a search as "extensive as reasonably required to locate the items described in the warrant." United States v. Jackson, 120 F.3d 1226, 1228 (11th Cir.1997); United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir.1982). They were permitted "to break open locked containers which may contain the objects of the search." United States v. Martinez, 949 F.2d 1117, 1120 (11th Cir.1992); see also Jackson, 120 F.3d at 1229 (finding officers to be lawfully present when "in conducting the search, the officers opened the closet door and looked inside, finding a firearm instead of [narcotics]"). The master bedroom closet certainly qualified as a place where Oxycodone pills might reasonably be found — particularly since empty pill bottles with prescription labels for Oxycodone, Xanax, and Alprazolam were found in the master bedroom.
Because both prongs of the plain view doctrine were satisfied in this case, the District Court did not err in denying Folk's motion to suppress.
We next address Folk's argument that the government's exercise of a preemptory strike of Juror 21 — an African-American
Id. at 328-29, 123 S.Ct. at 1035 (citations omitted).
Here, Folk objected to the prosecution's use of a peremptory challenge on Juror number 21, Daniel Thomas. In evaluating whether the prosecution's use of a peremptory challenge against Thomas violated Folk's constitutional rights, we begin by reviewing the relevant facts.
Thomas was one of three black veniremembers, along with Jeffrey Thegg and Tara Hill. Thegg was seated on the jury, and while the prosecution also used a peremptory challenge against Hill, Folk concedes that there were "clear reasons" for doing so.
During the court's voir dire of the veniremembers, Thomas indicated that he had a relative who had been charged with a crime. When the court followed up with further questions, Thomas indicated that his family member had been charged with a similar offense for which Folk was on trial:
After the court's voir dire, neither the prosecution nor Folk's attorney questioned Thomas directly. Indeed, he was not mentioned again until the prosecution chose to use a peremptory challenge to remove him. In response, Folk raised a Batson challenge, claiming that Thomas was being struck on the basis of race, and the judge asked the prosecution to give its reasons for striking Thomas. In response, the prosecution answered:
The court ruled that it would "accept the reason," without explicitly noting whether Folk had made even made a prima facie showing that the prosecution had exercised a peremptory challenge on the basis of race. Applying these facts to the three-step Batson inquiry articulated above, we find that the trial judge did not err in rejecting Folk's Batson challenge.
First, it is unclear whether Folk made a prima facie showing that Thomas was struck on the basis of his race. Batson held that "a `pattern' of strikes against black jurors ... might give rise to an inference of discrimination." 476 U.S. at 97, 106 S.Ct. at 1723 (emphasis added). Also, situations where there is a "total or seriously disproportionate exclusion of [African-Americans] from jury venires" can be so egregious as "to show intentional discrimination." Id. at 93, 106 S.Ct. at 1721 (internal quotation marks omitted).
The facts here do not demonstrate a facially discriminatory pattern of striking black members from the potential jury pool. Thomas was one of only three black veniremembers, and one of these three was ultimately seated on the jury. The striking of two out of three black veniremembers does not demonstrate a pattern of discrimination — particularly since Folk concedes that there were "clear reasons" for striking Hill from the prospective juror pool. And this is not a situation where there was a systematic plan to eliminate black jurors from a pool of veniremen. Compare Adkins v. Warden, 710 F.3d 1241, 1255 (11th Cir.2013) ("[T]he state here used peremptory strikes to exclude nine of eleven potential black jurors, resulting in a strike rate of eighty-two percent.").
Even if Folk made a prima facie showing of discrimination, however, he has failed to show that the prosecution did not proffer a nondiscriminatory and sincere reason for striking Thomas. Notably, these are two separate inquiries under Batson's three-part test. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) ("The Court of Appeals erred by combining Batson's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive....").
First, we must ask whether the reasons tendered by the prosecution for striking Thomas are nondiscriminatory on their face. Id. at 767-68, 115 S.Ct. at 1771 ("The second step of [Batson] does not demand an explanation that is persuasive, or even plausible.... Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." (internal quotation mark omitted)). Here, the State gave two reasons for striking Thomas from the jury pool: (1) the prosecutor had trouble hearing Thomas's answers during voir dire; and (2) Thomas had a friend who was on multiple years' probation. Neither of these reasons inherently implicate Thomas's race, and therefore both reasons satisfy the second step of Batson's three-step inquiry.
The only remaining question is, therefore, whether the stated reasons for making a peremptory challenge were sincere. The trial judge's decision on this "ultimate question of discriminatory intent... represents a finding of fact of the sort accorded great deference on appeal." Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir.2011) (internal quotation mark
Because Folk has failed to demonstrate that the prosecution acted in a discriminatory manner by striking Thomas from the venire, we hold that the District Court did not err in denying his Batson challenge.
Finally, Folk argues that the evidence at trial was insufficient to support his conviction for knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1). In order to prove this offense, the prosecution must establish, beyond a reasonable doubt, that: (1) the defendant had previously been convicted of a felony; (2) the defendant knowingly possessed a firearm; and (3) the firearm traveled in or affected interstate commerce. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.2004). Folk concedes that he was a convicted felon at the time of his trial, but he argues that the prosecution failed to demonstrate that he knowingly possessed the firearms or that the firearms were involved in interstate commerce.
In reviewing Folk's argument "we must view the evidence in the light most favorable to the government, and we are required to affirm appellant's conviction unless, under no reasonable construction of the evidence, could the jury have found appellant guilty beyond a reasonable doubt." United States v. Gonzalez, 71 F.3d 819, 834 (11th Cir.1996) (citations omitted). Here, we find that the evidence supporting both contested elements — knowing possession and movement in interstate commerce — was overwhelming.
At trial, testimony from the prosecution's witnesses established the narrative of how Folk first took possession of both firearms that were found in his residence. Around 2005, Jack Folk began dating Amber James. The two moved in together, and they had son named Mason. Ms. James's father — Robert James — was an avid deer hunter, and he kept several firearms in a wooden gun cabinet with glass windows in his home. Sometime in 2006 or early 2007, Robert James began to feel uncomfortable having his grandson around this gun case, which he saw as insecure. He decided to replace it with a steel gun safe and to give the wooden gun cabinet to Folk. Among Robert James's many guns was the .30-.30 lever action rifle at issue in this case. The lever on the rifle was broken, and James decided to give this rifle to Folk along with the wooden gun case.
In June 2007, Folk first met Cheryl Brandow while he was still living with Amber James. The two hit it off, and Folk moved in with Brandow in July. While the two were living together, Brandow decided to give Folk — as a birthday present — gift cards amounting to around $200.
At some point prior to 2009, Folk brought both the rifle that he had received from Robert James and the shotgun he had received from Brandow to the home of his uncle — Mark Farley — for safe keeping.
While he was in jail, Folk's phone conversations were recorded, and after the firearms were seized from his residence, these conversations were reviewed by police officers.
Folk's jail conversations also demonstrated that he could still command his uncle Mark Farley — who had actual possession of the guns — to disgorge the weapons. For example, on March 29, Cheryl
This evidence is sufficient to show that Folk knowingly possessed both the rifle and the shotgun found at his residence. Although he was currently incarcerated at the time that the warrant was executed, "any firearm possession, actual or constructive, by a convicted felon is prohibited by law." United States v. Howell, 425 F.3d 971, 977 (11th Cir.2005). "To establish constructive possession, the government must prove `ownership, dominion, or control' over the firearm." United States v. Molina, 443 F.3d 824, 829 (11th Cir.2006) (quoting United States v. Ferg, 504 F.2d 914, 916 (5th Cir.1974)). Here, a reasonable jury could find that Folk knowingly had constructive possession of both the shotgun and the rifle. Both were given to Folk personally, and he continued to control their movements until they were seized from his residence on April 1, 2009.
The evidence presented at trial was also sufficient to demonstrate that the firearms moved in interstate commerce. A detective with the Palm Beach County Sheriff's Office, Steven Barborini, testified on this issue. Before Folk's trial, he had testified well over a hundred times in federal and state court regarding the manufacture of firearms and their relationship to interstate commerce. Without objection by Folk, the court declared Barborini an expert in the interstate commerce movements of firearms and ammunition. Barborini thereafter testified that the markings and serial numbers imprinted on the firearms — as required by federal law — indicated where they were manufactured. Based on these markings and numbers, Barborini said that the shotgun was manufactured in Turkey — imported via Nevada — and that the lever action rifle was manufactured in Connecticut.
A reasonable jury could rely on Barborini's testimony in concluding that the firearms had moved in interstate commerce. The interstate nexus element of 18 U.S.C. § 922(g) can be established by showing that the firearm was manufactured in a different state from the one in which it was ultimately possessed by the defendant. United States v. Clay, 355 F.3d 1281, 1287 (11th Cir.2004) ("We have stated that a weapon which was seized in Florida and `bore an imprint indicating that it had been manufactured in Atlanta' gave a `clear indication of interstate commerce.'" (quoting United States v. Brantley, 68 F.3d 1283, 1288 (11th Cir.1995))). Such a showing can come from the testimony of an expert witness. See United States v. Scott, 263 F.3d 1270, 1274 (11th Cir.2001). Here, Barborini's testimony was sufficient for
The District Court did not err in denying either Folk's motion to suppress the firearms seized from his residence or his Batson challenge to the prosecution's peremptory strike of veniremember Thomas. And the evidence presented to the jury was sufficient to support Folk's conviction under 18 U.S.C. § 922(g). Folk's remaining allegations of error are without merit. The judgment of the District Court is, accordingly,
AFFIRMED.