Case: 19-12902    Date Filed: 09/10/2020   Page: 1 of 9



                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12902
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 7:18-cr-00459-LSC-GMB-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus


CARLOS GABRIEL DE AZA,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (September 10, 2020)

Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 19-12902    Date Filed: 09/10/2020   Page: 2 of 9



      Carlos Gabriel De Aza appeals his convictions for possession of

methamphetamine with the intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)

(Count 1); possession of a firearm in furtherance of a drug-trafficking crime,

18 U.S.C. § 924(c) (Count 2); and being a felon in possession of a firearm

3). He raises two issues on appeal. First, he argues that the

district court erred in denying his motion to suppress without a hearing under

Franks v. Delaware, 

(1978), because the police officer’s affidavit in

support of the search warrant included false statements from an unreliable source

and exaggerated facts. Second, he asserts that the government presented

insufficient evidence to prove his possession of methamphetamine and firearms, as

required to sustain his convictions.

      Because the district court did not err in denying De Aza’s motion to suppress

without a Franks hearing and sufficient evidence supported the jury’s verdict, we

will affirm.

                                          I

      De Aza first argues that the district court should have held a Franks hearing

because Officer Chris Webster’s affidavit in support of the application for a

warrant to search De Aza’s home: (1) included information from Loren Allen that

he saw drugs in De Aza’s home, even though Allen was unreliable; and (2) stated




                                         2
               Case: 19-12902     Date Filed: 09/10/2020     Page: 3 of 9



that alprazolam “pills” belonging to De Aza were found in Allen’s car, even

though only a single pill was recovered.

      A district court’s denial of an evidentiary hearing is generally reviewed for

an abuse of discretion. United States v. Barsoum, 

, 1328 (11th Cir.

2014). While we have not explicitly adopted a standard of review with respect to a

Franks hearing, “abuse of discretion review is appropriate.”

Franks hearing, a defendant must “make[] a substantial

preliminary showing” that the officer made intentionally false or recklessly

misleading statements that were necessary to a probable-cause finding. 

–56. “Allegations of negligence or innocent mistake are

insufficient,” and a defendant may impeach only the affiant’s statement, not the

informant’s statement. United States v. Novaton, 

, 986 (11th Cir.

2001) (quoting 

–72). “When assessing whether the alleged

false statements and omissions were material, the trial court is to disregard those

portions of the affidavit which the defendant has shown are arguably false and

misleading.” 

–29 (quotation omitted). The defendant

must then show that, “absent those misrepresentations or omissions, probable

cause would have been lacking.”

Only upon meeting this burden

would the defendant be entitled to a hearing. 

. To

establish probable cause, the affidavit must “state facts sufficient to justify a


                                           3
               Case: 19-12902     Date Filed: 09/10/2020    Page: 4 of 9



conclusion that evidence or contraband will probably be found at the premises to

be searched.” United States v. Martin, 

, 1314 (11th Cir. 2002)

(quotation omitted).

      Although the government argues that De Aza failed to specifically object to

the magistrate judge’s report and recommendation, we conclude that we need not

decide whether plain-error review applies because the district court did not err—

plainly or otherwise—in denying the motion to suppress without a Franks hearing.

With respect to the use of Allen’s statement in the affidavit, De Aza provided no

evidence showing that Officer Webster recounting Allen’s statement that “an

ounce” of methamphetamine was present in De Aza’s home was intentionally or

recklessly false. See 

–56. While De Aza attempts to cast

doubt on Allen’s reliability, it is Officer Webster’s veracity that is relevant. See

. And Officer Webster did not recklessly rely on Allen’s

statement. The methamphetamine found in the car corroborated Allen’s assertion

that De Aza had methamphetamine in his home, and Allen’s reliability was

bolstered by the fact that he also provided inculpatory statements.

      Even assuming Officer Webster acted wrongly, probable cause existed

independent of the challenged statement. See 

–56;

–29. Specifically, the affidavit also noted: that

methamphetamine was found in the car; that Allen said he had recently smoked


                                           4
               Case: 19-12902    Date Filed: 09/10/2020    Page: 5 of 9



methamphetamine in the house with De Aza; and that other sources, surveillance,

and investigative techniques indicated that evidence of De Aza’s drug activity

could be found in the house. See 

.

      Further, De Aza did not put forward any evidence that Officer Webster

intentionally inflated the amount of alprazolam recovered from the car search. See

–56. Aside from an assertion that the “pills” statement was

an exaggeration, De Aza provided no argument as to why the erroneous reference

was more than negligence or an innocent mistake. See 

.

Assuming that the mistake was intentional, however, De Aza also made no

showing that the distinction between “pills” and “a pill,” was necessary to the

probable-cause finding, in light of the other information provided in the affidavit,

including that methamphetamine was found in the car in addition to the single pill.

      The district court therefore did not err in denying a Franks hearing, as De

Aza failed to “make[] a substantial preliminary showing” that Officer Webster

intentionally or recklessly made false statements on which the probable cause

determination relied. See 

–56.

                                          II

      Next, De Aza asserts that the district court erred in denying his motion for

judgment of acquittal. Specifically, he argues that because multiple people lived at




                                          5
              Case: 19-12902     Date Filed: 09/10/2020   Page: 6 of 9



his home, and no physical evidence connected the drugs or firearms to him, there

was insufficient evidence to support that he possessed the drugs and firearms.

      We review de novo the denial of a motion for judgment of acquittal based on

sufficiency of the evidence. United States v. Browne, 

, 1253 (11th

Cir. 2007). When determining sufficiency, we view the evidence “in the light most

favorable to the Government, drawing all reasonable inferences and credibility

choices in [its] favor.”

“[i]f a reasonable jury could conclude

that the evidence establishes [the defendant’s] guilt beyond a reasonable doubt.”

not require the evidence to be inconsistent with every

reasonable hypothesis other than guilt; rather, the jury may choose between

reasonable conclusions.

is relied on,

“reasonable inferences, not mere speculation, must support the conviction.”

United States v. Mendez, 

, 814 (11th Cir. 2008). We have recognized

that “[c]redibility determinations are the exclusive province of the jury.” United

States v. Calderon, 

, 1325 (11th Cir. 1997) (alteration in original)

(quotation omitted). The government may rely on constructive possession through

direct or circumstantial evidence, rather than actual possession. United States v.

Albury, 

, 1294 (11th Cir. 2015). Accordingly, “a person who owns

or exercises dominion and control over a residence in which contraband is




                                          6
               Case: 19-12902     Date Filed: 09/10/2020   Page: 7 of 9



concealed may be deemed to be in constructive possession of the contraband.”

omitted).

      To prove Count 1, the government must have proven that De Aza

(1) knowingly (2) possessed a controlled substance (3) with the intent to distribute.

21 U.S.C. § 841(a)(1); United States v. Poole, 

, 1391 (11th Cir.

1989). To prove Count 2, the government must have shown that De Aza

“(1) knowingly (2) possessed a firearm (3) in furtherance of any drug trafficking

crime.” United States v. Williams, 

, 1232 (11th Cir. 2013)

(quotation omitted); see also 18 U.S.C. § 924(c). Lastly, to sustain a conviction for

Count 3, the government must have proven three elements: (1) that De Aza was a

convicted felon and knew he was a felon; (2) that De Aza was in knowing

possession of a firearm; and (3) that the firearm was in or affected interstate

commerce. 18 U.S.C. § 922(g)(1); Rehaif v. United States, 

, 2195–

96 (2019); see also United States v. Reed, 

, 1020–22 (11th Cir.

2019) (applying Rehaif to the review of a pre-Rehaif conviction challenged for an

insufficient indictment and evidence).

      The government presented sufficient evidence for a reasonable jury to

conclude beyond a reasonable doubt that De Aza possessed the methamphetamine

and firearms. As to the methamphetamine required for Count 1, the jury heard

from Allen that he smoked methamphetamine with De Aza in his house the day


                                            7
               Case: 19-12902      Date Filed: 09/10/2020     Page: 8 of 9



prior to them being pulled over and that De Aza concealed the drugs’ location from

Allen. Although Allen admitted to smoking methamphetamine the day before he

testified at trial, the jury had the sole authority to consider his credibility, see

, and a conviction based on his testimony was not

unreasonable in light of his testimony and the other evidence presented, see

. Moreover, the jury heard testimony that De Aza stated

he was the sole occupant of his house and that law enforcement recovered more

than 90 grams of methamphetamine from the house. Given this testimony, the jury

was provided with sufficient circumstantial evidence from which it could have

reasonably concluded that De Aza possessed the drugs without straying into

speculation. See 

; 

.

       Similarly, with regard to possession of the firearms required for Counts 2

and 3, the jury heard that the firearms found in De Aza’s home were near the drugs

and hidden throughout the home. Although the jury also heard evidence that De

Aza’s girlfriend lived with him and that one firearm was found in what appeared to

be a purse, the jury could reasonably conclude that De Aza knew of the firearms

and had constructive possession of them. See 

; 

. Accordingly, sufficient evidence supported the jury’s verdict

that De Aza had possession of the methamphetamine and firearms in order to

sustain his convictions.


                                             8
     Case: 19-12902   Date Filed: 09/10/2020   Page: 9 of 9



AFFIRMED.




                              9