Filed: Apr. 29, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4668 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LASALLE BOONE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00145-RBS-FBS-1) Submitted: March 31, 2009 Decided: April 29, 2009 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew A. Protogyrou, Nicholas
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4668 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LASALLE BOONE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00145-RBS-FBS-1) Submitted: March 31, 2009 Decided: April 29, 2009 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew A. Protogyrou, Nicholas L..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4668
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LASALLE BOONE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:07-cr-00145-RBS-FBS-1)
Submitted: March 31, 2009 Decided: April 29, 2009
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew A. Protogyrou, Nicholas L. Woodhouse, PROTOGYROU &
RIGNEY, P.L.C., Norfolk, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Elizabeth Bartlett
Fitzwater, Special Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lasalle Boone was convicted after a jury trial of
possession with the intent to distribute cocaine base, in
violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A)(iii) (West
2000 & Supp. 2006), and possession of a firearm by a convicted
felon, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000 &
Supp. 2006). He appeals, asserting that the district court
erred in denying him leave to file an untimely motion to
suppress evidence and that the evidence is insufficient to
support his convictions. Finding no error, we affirm.
Under Fed. R. Crim. P. 12, motions to suppress
evidence must be raised prior to trial or by the deadline
established by the district court. See Fed. R. Crim. P.
12(b)(3)(C), 12(c). A defendant waives the right to file a
suppression motion if he fails to file the motion prior to the
deadline set by the district court, unless he can establish good
cause for the waiver. Fed. R. Crim. P. 12(e). This court has
found good cause to excuse an untimely motion to suppress where,
for instance, the delay in filing the suppression motion was
caused by the Government’s failure to turn over the evidence
sought to be suppressed. See United States v. Chavez, 902 F.2d
259, 263-64 (4th Cir. 1990).
This court will not disturb a district court’s denial
of leave to file an untimely motion to suppress unless the
2
district court committed clear error. See United States v.
Ruhe, 191 F.3d 376, 385 (4th Cir. 1999);
Chavez, 902 F.2d at
263. Accordingly, “reviewing courts rarely grant relief from
denials of untimely suppression motions.”
Chavez, 902 F.2d at
263 (recognizing that appellate courts generally deny relief
from the denial of untimely suppression motions where the motion
was made after the court-imposed deadline and the defendant
proffered only a “dubious excuse”); see
Ruhe, 191 F.3d at 386-87
(holding that there existed no good cause to raise an untimely
suppression issue where the defendant could have with due
diligence discovered the information necessary to raise the
issue). After review of the record, we conclude that the
district court did not commit error, clear or otherwise, when it
denied Boone leave to file an untimely motion to suppress.
Boone also challenges the sufficiency of the evidence
supporting his convictions on the basis that the Government
failed to show his possession of the cocaine base and the
firearms seized in this case. At the close of the Government’s
evidence and the evidence as a whole, Boone moved for a judgment
of acquittal under Fed. R. Crim. P. 29. We review the district
court’s denial of that motion de novo. E.g., United States v.
Uzenski, 434 F.3d 690, 700 (4th Cir. 2006).
In assessing the sufficiency of the evidence, this
court must determine whether the jury’s verdict is sustained by
3
“substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Pierce, 409 F.3d
228, 231 (4th Cir. 2005) (quoting Glasser v. United States,
315
U.S. 60, 80 (1942)). Substantial evidence is evidence “that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos,
94 F.3d 849, 862
(4th Cir. 1996) (en banc). In evaluating the sufficiency of the
evidence, this court does not assess the credibility of
witnesses and assumes that the jury resolved discrepancies in
the testimony in the Government’s favor. See United States v.
Sun,
278 F.3d 302, 313 (4th Cir. 2002).
To convict Boone of possession with the intent to
distribute cocaine base, the Government had to prove that he:
(1) knowingly, (2) possessed the cocaine base, (3) with the
intent to distribute it. See Burgos, 94 F.3d at 873. To
convict Boone under 18 U.S.C. § 922(g)(1), the Government was
required to prove that Boone: (1) was a convicted felon at the
time of the offense; (2) voluntarily and intentionally possessed
a firearm; and (3) that the firearm traveled in interstate
commerce at some point. See United States v. Gallimore,
247
F.3d 134, 136 (4th Cir. 2001). Possession may be actual or
constructive. United States v. Rusher,
966 F.2d 868, 878 (4th
Cir. 1992). The Government may prove constructive possession by
4
presenting evidence that the defendant exercised, or had the
power to exercise, dominion and control over the item. Id.
Moreover, possession need not be exclusive, but may be joint and
can be established by direct or circumstantial evidence. United
States v. Schocket,
753 F.2d 336, 340 (4th Cir. 1985). Although
a defendant’s mere presence at, or joint tenancy of, a location
where contraband is found is insufficient to establish
constructive possession, United States v. Morrison,
991 F.2d
112, 115 (4th Cir. 1993), “where other circumstantial evidence .
. . is sufficiently probative, proximity to contraband coupled
with inferred knowledge of its presence” will support such a
finding, United States v. Laughman,
618 F.2d 1067, 1077 (4th
Cir. 1980) (internal quotation marks and citation omitted).
Consistent with this principle, this court has held that the
fact that contraband is found in a defendant's residence
“permits an inference of constructive possession.” United
States v. Shorter,
328 F.3d 167, 172 (4th Cir. 2003).
We have reviewed the record and conclude that the jury
had sufficient evidence from which to infer and find that Boone
had knowledge of and exercised dominion and control over the
cocaine base and firearms seized in this case. In this case,
prior to executing a search warrant at a residence on Vermont
Avenue in Portsmouth, Virginia (“the Vermont Avenue residence”),
law enforcement observed Boone in front of the residence
5
cleaning a vehicle. As a result of their search, law
enforcement officials recovered cocaine base and various indicia
of narcotics distribution, including United States currency, a
digital scale, plastic bags and a razor blade, and a tin can
with a false bottom, from a bedroom in the Vermont Avenue
residence that also contained papers and personal effects
bearing Boone’s name. Boone’s wife, who also occupied the
Vermont Avenue residence, testified that the cocaine base and
distribution indicia were not hers. Additionally, although
Boone was not present at the Vermont Avenue residence when law
enforcement officials began their search, he arrived there
approximately thirty to forty minutes later, questioning what
law enforcement officials were doing at his house.
The jury also heard testimony that Boone alone leased
a residence at the Shamrock Gardens Apartments in Chesapeake,
Virginia (“the Shamrock Gardens residence”) from which an
additional quantity of cocaine base and the firearms were
recovered. The cocaine base was recovered from an upstairs
bedroom in the Shamrock Gardens residence containing various
personal effects and papers bearing Boone’s name. The firearms
were recovered from the residence’s first floor living area, and
the jury could infer Boone’s access to them, as Boone was the
sole authorized occupant of the residence and occupied it on a
part-time basis.
6
This evidence was sufficient to allow a jury to infer
and find that Boone had knowledge of and exercised dominion and
control over the cocaine base and firearms recovered from the
Vermont Avenue and Shamrock Gardens residences. Accordingly,
the district court did not err in denying Boone’s Rule 29
motions.
Therefore, we affirm the district court’s 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
7
