Filed: Nov. 14, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 14, 2006 Charles R. Fulbruge III No. 06-40494 Clerk Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANK WILLIAM WINEINGER, II, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Texas Case No. 4:05-CR-10 _ Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges. PER CURIAM:* In this appeal fr
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 14, 2006 Charles R. Fulbruge III No. 06-40494 Clerk Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANK WILLIAM WINEINGER, II, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Texas Case No. 4:05-CR-10 _ Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges. PER CURIAM:* In this appeal fro..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2006
Charles R. Fulbruge III
No. 06-40494 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK WILLIAM WINEINGER, II,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
Case No. 4:05-CR-10
_________________________________________________________________
Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
In this appeal from conviction for several narcotics- and
firearm-related offenses, Defendant-Appellant, Frank Wineinger
claims: (1) the district court improperly failed to suppress
evidence obtained during the course of a search; (2) insufficiency
of the evidence to sustain a conviction on Count Five of the
indictment; (3) error in failure to sever Count Five of the
indictment; (4) error in admission of evidence in support of Count
*
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this opinion should not be published and is not precedent except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.
Five of the indictment; (5) error in overruling his Batson
challenge. We analyze each of these claims in turn.
Frank Wineinger was arrested on March 5, 2003, by the
Sherman, Texas, Police Department pursuant to an outstanding felony
warrant. A search incident to arrest uncovered a loaded Dan Wesson
.357 Magnum revolver tucked in his waistband, a small amount of
methamphetamine, $567.00 in cash, and a “user’s kit” containing
drug paraphernalia in his pockets.
After being taken into custody, Wineinger waived his
rights and confessed to selling and using narcotics. He told
Officer Jeffcoat, who conducted the interrogation, that he had been
using methamphetamine for the past six months. He also stated that
the residence he shared with his girlfriend (now wife), Kimberly
Hall, at 2902 Ray Drive in Denison, contained two additional
firearms and more drug paraphernalia. Based on his admissions,
narcotics investigators obtained a search warrant. Upon a search
of the Ray Drive house, officers discovered marijuana, drug
paraphernalia (including plastic bags containing methamphetamine
residue, pipes, and bongs), three firearms (including the .45 AMT
semi-automatic pistol described in Count Five2 of the superseding
indictment), paint thinner, hydrogen peroxide, red phosphorus,
2
Count Five alleges violation of 18 U.S.C. § 922(g)(3), possession of a firearm by an
unlawful user of a controlled substance, and states in pertinent part that “[o]n or about March 5,
2003...FRANK WILLIAM WINEINGER, II, then being an unlawful user of a controlled
substance...knowingly possessed...a firearm, to-wit: a AMT, Model Hardball, .45 caliber, semi-
automatic pistol, Serial Number A05703....”
2
pseudoephedrine tablets, and other precursor materials typically
used in the production of methamphetamine. Photographs of these
items were introduced at trial over Wineinger’s objection.
On September 20, 2003, Sergeant Mike Stephens received a
tip that Wineinger was in possession of stolen firearms and
methamphetamine at 2601B Hickory Street, in Sherman, and that he
was armed and had been taking methamphetamine. Based on this
information and his discovery that Wineinger had eight outstanding
felony warrants, Sergeant Stephens and three other law enforcement
officials drove to the residence to apprehend Wineinger.
Upon arrival, the officers were told by Kim Parker, who
occupied the house with her boyfriend Ray Sinor, that Wineinger was
inside and was somewhere in the back of the residence. The
officers proceeded to enter the house and systematically sweep the
rooms, during the course of which they observed several guns and
gun cases strewn around the living room floor.
Officers discovered Wineinger hiding in a bedroom closet
at the rear of the residence. After extricating him, they found a
stolen 9mm pistol inside of a Crown Royal whisky bag on the ground
near where Wineinger had concealed himself, and a loaded revolver
secured in a holster on his left hip. After removing him from the
residence, officers obtained the written consent of Parker and
Sinor to search the house. In the course of the search they
discovered the guns, gun cases, five small plastic bags containing
methamphetamine, and a black film canister containing marijuana.
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Kimberly Parker testified at trial that prior to the officers’
arrival, Wineinger entered the house, dumped the firearms behind
the sofa and sat down at the living room table where he proceeded
to bag methamphetamine.
Wineinger was indicted on four firearm and narcotics
counts, arising out of the September 20, 2003, incident. In a
superseding indictment, he was charged with a fifth count, alleging
possession of a firearm by an unlawful drug user, arising out of
the March, 5, 2003, arrest. Wineinger pled guilty to two counts
and was convicted after trial on the other three. He was sentenced
to 73 months’ imprisonment. He appeals his conviction.
I. DISCUSSION
The factual findings on the motion to suppress evidence
are examined for clear error, while questions of law and the
overall Fourth Amendment reasonableness of the search are reviewed
de novo. United States v. Braithwaite, 458 F.3d 376, 379-80 (5th
Cir. 2006). Facts supporting a suppression determination are
viewed in the light most favorable to the prevailing party, here,
the United States. United States v. Hunt,
253 F.3d 227, 230 (5th
Cir. 2001).
As a threshold matter, Wineinger lacks standing to
contest the legality of the search unless he can establish that he
enjoyed a “legitimate expectation of privacy” in the Parker
residence at the time of his arrest. United States v. Ibarra,
4
948 F.2d 903, 905 (5th Cir. 1991) (citing Rakas v. Illinois,
439 U.S. 128, 134,
99 S. Ct. 421, 430 (1978)). “Fourth Amendment
rights are personal and cannot be vicariously asserted.” United
States v. Mendoza-Burciaga,
981 F.2d 192, 196 (5th Cir. 1993). Our
determination of this question depends on whether Wineinger can
establish an actual, subjective expectation of privacy in the place
searched or evidence seized, and whether that expectation of
privacy is one society would recognize as reasonable.
Wineinger first challenges the district court’s denial of
his motion to suppress evidence found during the September 20
arrest. He contends that because he was a guest in Kimberly
Parker’s home at the time of his arrest and had visited on several
prior occasions, he has demonstrated a legitimate expectation of
privacy under Minnesota v. Olsen, 495 U.S. 91,
110 S. Ct. 1684
(1990). It is clear, however, that Olsen stands for the
proposition that not merely any temporary visitor, but only
overnight social guests, may under certain circumstances be
entitled to Fourth Amendment standing to challenge a search when
present in another’s home. United States v. Phillips,
382 F.3d
489, 495 (5th Cir. 2004). Wineigner’s claim is nothing short of
extravagant when considered against the backdrop of the Supreme
Court’s desire in Olsen to “recognize and protect an expectation of
privacy in the home of another when it is based on a visit which
represents a longstanding social custom that serves functions
recognized as valuable by society.” United States v. Phillips,
5
382 F.3d 489, 495 (5th Cir. 2004) (citing
Olsen, 495 U.S. at 91,
110 S. Ct. at 1684).
Wineinger next asserts that the discrepancy between the
description of the firearm alleged in Count Five of the superseding
indictment and the firearm that the jury convicted him of
possessing constitutes a fatal variance and requires reversal of
the district court judgment. We disagree.
We review any variance between charges alleged in the
indictment and evidence produced at trial for harmless error.
United States v. Freeman, 434 F.3d 369, 374-75 (5th Cir. 2005). A
constructive amendment to an indictment is reversible per se and
occurs “when the jury is permitted to convict the defendant on a
factual basis that effectively modifies an essential element of the
offense charged.” United States v. Millet,
123 F.3d 268, 272 (5th
Cir. 1997), cert. denied,
523 U.S. 1023,
118 S. Ct. 1306 (1998).
However, not all inconsistencies between the indictment and the
evidence produced in support of crimes for which a defendant is
ultimately convicted amount to reversible error. In such cases,
“convictions generally have been sustained as long as the proof
upon which they are based corresponds to an offense that was
clearly set out in the indictment.” United States v. Hamilton,
992 F.2d 1126, 1130 (10th Cir. 1993) (quoting United States v.
Miller,
471 U.S. 130, 136,
105 S. Ct. 1811, 1814 (1985)).
There is no fatal variance between the government’s proof
adduced at trial and the terms of the superseding indictment.
6
Count Five, alleging possession of a firearm by an unlawful user of
a controlled substance in violation of 18 U.S.C. § 922(g)(3),
states that on or about March 5, 2003, Wineinger “knowingly
possessed...a firearm, to-wit: a AMT, Model Hardball, .45 caliber,
semi-automatic pistol, Serial Number A05703.” At the time of his
arrest Wineinger possessed on his person only a .357 Magnum
revolver, not the .45 caliber AMT, which was later discovered along
with two other firearms at the residence he shared with Kimberly
Hall. Wineinger argues that because there is insufficient evidence
to prove that he possessed the .45 caliber AMT recovered from his
house, the government cannot depend on that weapon to substantiate
proof of violating § 922(g)(3) under Count Five.
This court has previously held that a discrepancy between
the specific model of firearm alleged in a complaint and the
evidence adduced at trial to prove possession under § 922(g) is not
a fatal variance requiring a conviction to be vacated. Guidry,
406 F.3d at 322 (rejecting fatal variance argument based on
indictment charging defendant with possession of a “9mm Kurz” while
trial evidence indicated possession of a “.380-caliber pistol”);
United States v. Munoz
150 F.3d 401, 417 (5th Cir. 1998) (stating
that evidence at trial proving possession of a 20-gauge sawed-off
shotgun was not fatally at variance with an indictment charging
possession of a 12-gauge shotgun). In any event, there was ample
evidence for the jury to conclude that Wineinger possessed both the
.45 and .357 caliber weapons. Wineinger admitted to Officer
7
Jeffcoat after his arrest that in addition to the .357 revolver,
two other weapons, including the .45 caliber AMT, were kept at this
residence. Wineinger testified at trial that he had access to the
AMT and had handled it on previous occasions. As a result, the
jury could have reasonably concluded that Wineinger was in
possession of the .45 caliber AMT on March 5, 2003. The fact that
the AMT was recovered at Wineinger’s residence, and not at the
scene of his arrest, is irrelevant to the question of whether he
possessed a firearm within the meaning of § 922(g)(3). The
discrepancy between the indictment and trial proof was irrelevant
to the question of possession and was harmless.
Wineinger argues that the district court’s refusal to
sever Count Five prejudiced him in violation of FED. R. CRIM. P. 14.
We review the denial of a severance motion for abuse of discretion.
United States v. Pena-Rodriguez, 110 F.3d 1120, 1128 (5th Cir.
1997). To satisfy this standard, “the defendant bears the burden
of showing specific and compelling prejudice that resulted in an
unfair trial.”
Id. (internal quotations omitted).
FED. R. CRIM. P. 8(a) permits joinder of offenses in a
single indictment if the offenses charged “are of the same or
similar character...or are connected with or constitute parts of a
common plan or scheme.” Wineinger stipulated that he had been a
drug user since 2000 and his criminal history indicates a pattern
of drug use. On both March 5 and September 20, 2005 (the dates
giving rise to Count 5 and Counts 2 and 4, respectively), Wineinger
8
was apprehended by police in possession of methamphetamine and was
concealing a loaded firearm in his waistband. Wineinger has failed
to demonstrate that the government’s theory that he was in
possession of the firearms to promote methamphetamine trafficking
was prejudicial. That the evidence produced in support of Count
Five served to incriminate him further was a fact that did not
require the district court to sever Count Five from Counts Two and
Four under Rule 14. The court did not abuse its discretion. See
United States v. Chagra, 754 F.2d 1186, 1189 (5th Cir. 1985).
Wineinger next contends that the district court violated
FED. R. EVID. 404(b) by admitting evidence that he possessed
marijuana, drug paraphernalia, and articles commonly used in
methamphetamine production in support of Count Five. We review
rulings on admissibility of evidence for abuse of discretion.
United States v. Royal, 972 F.2d 643, 645 (5th Cir. 1991).
In this case, it matters not whether the admission of the
evidence was either intrinsic or extrinsic to the crime charged.
United States v. Williams, 900 F.2d 823, 825 (5th 1990) (internal
quotations omitted). Evidence is intrinsic when it is
“inextricably intertwined” with the crime charged, or if both acts
constitute a “single criminal episode” or are “necessary
preliminaries” to the crime charged.
Id.
The evidence offered in support of Count Five is
indistinguishable from other proof that Wineinger possessed
firearms to both facilitate and protect his narcotics distribution,
9
and it was necessary to prove he was an unlawful user of drugs in
possession of a firearm. The district court adequately balanced
the materiality of the evidence against its prejudicial impact and
did not err in admitting it.
Wineinger’s final contention is that the government’s use
of peremptory strikes to remove two prospective black jurors
violated Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712 (1986).
The government offered race-neutral explanations for each strike.
One possible juror was related to a federal prisoner, while the
other one, a homemaker, did not fit the government’s goal of
seating professionals who could better understand technical
evidence. Wineinger offers no basis on which to second-guess the
district court’s decision that these explanations were credible as
well as race-neutral.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.
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