U.S. v. Leonard

Decision Date08 April 1998
Docket NumberNo. 96-8789,96-8789
Citation138 F.3d 906
Parties11 Fla. L. Weekly Fed. C 1193 UNITED STATES of America, Plaintiff-Appellee, v. Juan Phillip LEONARD; Scott Lee Moore, a.k.a. Dennis L. Spinks, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael S. Marr, Valdosta, GA, for Leonard.

Patrick C. Cork, Valdosta, GA, for Moore.

Bruce S. Harvey, Atlanta, GA, for Peterson.

H. Randolph Aderhold, Acting Asst. U.S. Atty., Macon, GA, Donald L. Johstono, Asst. U.S. Atty., Albany, GA, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before COX, DUBINA and BLACK, Circuit Judges.

COX, Circuit Judge:

Juan Philip Leonard, Scott Lee Moore, and Kirby Peterson appeal their convictions and sentences on drug and firearm charges stemming from an arrest following a traffic stop. We affirm in part and reverse in part.

I. BACKGROUND

On June 29, 1995, the defendants were in a Chevrolet Caprice station wagon traveling north on I-75 through Lowndes County, Georgia, just north of the Georgia-Florida border. Peterson was driving, Moore was in the front passenger seat and Leonard was in the back seat. Lowndes County Deputy Sheriff Mike Sellars observed the station wagon weaving in the lane, and pulled it over. Peterson explained his erratic driving by telling Deputy Sellars that he previously had been sleeping and had only started driving at the Georgia-Florida line. When asked for his driver's license, Peterson produced a 10-day permit issued by an Ohio municipal court to "Kirby Pearison." Deputy Sellars then asked Peterson for the vehicle's registration papers. Peterson stated that Moore, not he, was the owner of the car; Moore admitted ownership of the vehicle but stated that he did not have any registration, insurance, or ownership papers with him. None of the trio could produce photographic identification. Upon being asked, Peterson first told Deputy Sellers that the defendants were traveling from Orlando, but later said that they had come from Miami. Moore indicated that they had been in Florida but did not know where because he had slept through the trip. Leonard also stated that he had been asleep all through Florida and did not know where the trio had been.

At this point, Deputy Sellars became suspicious and asked Moore for permission to search the car. Moore verbally gave consent, but refused to sign a written consent form. Deputy Sellars then indicated that Moore did not have to give permission to search, but if he did not, Sellars would call in a dog to sniff the car. At this, Peterson urged Moore to sign the form, and he did. Deputy Sellars searched the front area of the vehicle, where he found several marijuana seeds and stems in the passenger side ashtray. Meanwhile, Deputy Brian Flemming, who had been called in as backup, searched the rear of the station wagon. Upon lifting the tailgate, he noticed that it felt heavier than expected. He shook it, and heard a thumping sound inside. He removed the interior cover of the tailgate, revealing nine bricks of packaged cocaine and a Glock 9mm handgun. The defendants were then arrested.

A grand jury returned a five-count indictment against the defendants. Count One charged all defendants with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); Count Two charged carrying or using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and Counts Three, Four and Five charged each defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). 1 After the presentation of evidence, and over the objections of counsel for all three defendants, the trial judge charged the jury in part as follows:

[I]n the second charge, which is using and carrying a firearm, the word "possession" is synonymous with the word "carry," and therefore, the instruction that I give you applies to the words "possession" and to the word "carry."

....

You may find that the element of possession and the element of carrying, as that term is used in these instructions, is present, if you find beyond a reasonable doubt that a defendant had actual or constructive possession, either alone or jointly with others.

....

... Now, there's no contention on the government's part that either [Leonard or Moore] actually used a firearm in connection with this drug transaction. The sole contention is that the firearm was carried; that is, that it was possessed, actually or constructively, during and in relation to the drug charge....

(R.3 at 194, 195, 196-97). The jury convicted the defendants on all counts.

II. DISCUSSION

The defendants raise several issues on appeal, but only two merit discussion: 2 (1) the legal sufficiency of the evidence; and (2) the propriety of the trial court's instructions to the jury regarding the § 924(c) charge. These are both issues of law which we review de novo. See United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989); United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993).

Was The Evidence Sufficient to Convict the Defendants of Possession of Cocaine With Intent to Sell?

All three defendants make essentially the same argument with respect to the sufficiency of the evidence. They contend that although the Government's evidence showed that they were traveling in a car in which cocaine and a gun had been hidden, the Government could not show that any of them had actually possessed either. The standard for assessing the sufficiency of evidence is whether any reasonable view of the evidence, considered in the light most favorable to the government, is sufficient to allow a jury to find guilt beyond a reasonable doubt. United States v. Bush, 28 F.3d 1084, 1087 (11th Cir.1994).

To support a conviction for possession of a controlled substance with intent to distribute, the evidence must show that the defendant knowingly possessed the controlled substance with the intent to distribute it. See United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.1984). The defendants cite numerous cases for the proposition that evidence showing mere presence in a car containing contraband is insufficient in itself to sustain a conviction for possession with intent to distribute. United States v. Stanley, 24 F.3d 1314, 1320 (11th Cir.1994). While this proposition is correct, the evidence in this case indicates more than "mere presence," at least with respect to Moore and Peterson.

When viewed in the light most favorable to the Government, the record shows that all of the defendants evidenced a "consciousness of guilt," which under Stanley is sufficient to support an inference of knowledge. See id. at 1320. Although both Leonard and Moore indicated they had slept all the way through Florida, Peterson told Deputy Sellers that he had just started driving near the Georgia-Florida border; one of these stories obviously was false. Moore refused to consent to the search of the car, but changed his mind when Deputy Sellers threatened to bring a canine unit. In fact, Peterson urged Moore to allow the deputy to search after hearing that a trained drug dog might search the car. Deputy Sellers testified that none of the defendants looked surprised at the discovery of the cocaine and the handgun in the tailgate. From this evidence, a jury certainly could have drawn the reasonable inference that all three defendants knew the cocaine and the gun were in the car.

The government may satisfy the "possession" prong by showing either actual or constructive possession. To prove actual possession the evidence must show that the defendant either had physical possession of or personal dominion over the thing allegedly possessed. See United States v. Derose, 74 F.3d 1177, 1185 (11th Cir.1996). Constructive possession exists when a defendant has ownership, dominion, or control over an object itself or dominion or control over the premises or the vehicle in which the object is concealed. Id. From the evidence, the jury reasonably could have inferred that Peterson was the driver of a vehicle in which he knew cocaine and a gun were hidden. This is sufficient to constitute personal dominion over the cocaine, and therefore actual possession. Cf. id. (government could not show personal dominion because, inter alia, record did not show that defendant drove vehicle containing marijuana). The jury reasonably could have inferred that Moore was the owner of a vehicle in which he knew cocaine and a gun were located, and therefore in constructive possession of both. As a jury could reasonably infer the existence of all elements 3 of the offenses the evidence was legally sufficient to convict Moore and Peterson for possession of cocaine with intent to distribute, and to convict Moore for possession of a handgun by a convicted felon.

However, while the jury could have inferred that Leonard knew the cocaine and gun were in the car, the Government points to no evidence that he possessed them, actually or constructively. The record only shows that Leonard was a passenger in the back seat of the station wagon when it was stopped. There is no evidence to indicate that Leonard ever had ownership, dominion or control over the cocaine, the gun, or the vehicle in which they were concealed.

The record also does not support a conviction on the grounds that Leonard aided or abetted the other two defendants. To sustain a conviction for aiding and abetting, the evidence must show that the defendant shared the criminal intent of the principal(s) and committed an overt act in furtherance of the criminal venture. See United States v. Guida, 792 F.2d 1087, 1095 (11th Cir.1986). Regardless of the "guilty knowledge" evidence from which a jury could infer Leonard knew the cocaine and gun were in the tailgate, there is no evidence that he committed any overt acts to aid their possession or...

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