138 F.3d 906 (11th Cir. 1998), 96-8789, United States v. Leonard

Docket Nº:96-8789.
Citation:138 F.3d 906
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juan Phillip LEONARD; Scott Lee Moore, a.k.a. Dennis L. Spinks, et al., Defendants-Appellants.
Case Date:April 08, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 906

138 F.3d 906 (11th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan Phillip LEONARD; Scott Lee Moore, a.k.a. Dennis L.

Spinks, et al., Defendants-Appellants.

No. 96-8789.

United States Court of Appeals, Eleventh Circuit

April 8, 1998

Rehearing Denied June 24, 1998.

Page 907

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.

Page 908

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...

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