831 F.3d 322 (5th Cir. 2016), 15-40360, United States v. Holley

Docket Nº:15-40360
Citation:831 F.3d 322
Opinion Judge:PATRICK E. HIGGINBOTHAM, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. JAMES CECIL HOLLEY, JR., Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: Jay R. Combs, Assistant U.S. Attorney, Thomas Edward Gibson, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX. For James Cecil Holley, Jr., Defendant - Appellant: F. Clinton Broden, Broden, Mickelsen, Helms &...
Judge Panel:Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting. JAMES E. GRAVES, JR., Circuit Judge, dissenting:
Case Date:July 27, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

Defendant appealed his conviction for conspiracy to commit a drug trafficking crime, felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. The court affirmed the denial of the three motions to suppress, concluding that the good faith exception applies to the disputed dog sniffs where they were "close enough to the line of validity" that an... (see full summary)

 
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Page 322

831 F.3d 322 (5th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

JAMES CECIL HOLLEY, JR., Defendant - Appellant

No. 15-40360

United States Court of Appeals, Fifth Circuit

July 27, 2016

Appeal from the United States District Court for the Eastern District of Texas.

For United States of America, Plaintiff - Appellee: Jay R. Combs, Assistant U.S. Attorney, Thomas Edward Gibson, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX.

For James Cecil Holley, Jr., Defendant - Appellant: F. Clinton Broden, Broden, Mickelsen, Helms & Snipes, L.L.P., Dallas, TX.

Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting.

OPINION

PATRICK E. HIGGINBOTHAM, Circuit Judge

A jury convicted Appellant James Cecil Holley, Jr. of conspiracy to commit a drug trafficking crime, felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. Holley now challenges all three convictions, and we AFFIRM.

I.

On March 6, 2008, Officer Travis Putman received information from a confidential informant that Holley was distributing large quantities of marijuana in the Dallas area. Putman conducted a records search and determined that Holley was associated with a house located at 6203 Gray Wolf Trail. A different officer traveled to the house on two separate occasions and used a trained canine to " conduct[] a free-air sniff of . . . [the] garage door." On both occasions, the dog " alerted to the presence of the odor of an illegal drug while sniffing the garage door." Based largely upon the canine alerts, Putman sought and received a search warrant for the Gray Wolf Trail house. During the search, officers discovered $9,990 in cash, a money counter, digital scales, ten pounds of marijuana, a marijuana seed, two trays of drying marijuana, a Heckler and Koch (" H& K" ) .45 caliber handgun, two loaded magazines, a drug ledger, and a utility bill for a house on Winterwood Lane in the name of Justin Dismore. Holley was present at the time of the search and seated a short distance from the handgun.

After locating the utility bill, officers began to investigate the house on Winterwood Lane. As with the Gray Wolf Trail house, an officer traveled to the Winterwood Lane house and used a trained canine to conduct a " free-air sniff" of the " garage door." The dog again " alerted to the presence of the odor of an illegal drug while sniffing the garage door." Based upon this alert and the utility bill found at the Gray Wolf Trail house, the officers obtained a search warrant for the house on Winterwood Lane. That search resulted in the discovery of a large hydroponic marijuana cultivation operation, 263 marijuana plants, and evidence linking Holley to the house. In 2009, investigators searched two other houses connected with Holley, one on McShann Road and one on Harvest Hill Road. Holley and Blake Huggins were present when officers executed the search warrant for the McShann Road house. Inside the house, officers discovered another hydroponic marijuana cultivation operation, 273 marijuana plants, 16 bags of hydroponic marijuana (with a total weight of around 11 pounds), a digital scale, a drug ledger, evidence that Holley was living there, a utility bill for the property in the name of Louis Lee, and a sales receipt in Lee's name. During the search of the Harvest Hill Road house, officers learned that it was being occupied by Huggins and Michael Strickland. In Huggins's room, officers found a schematic drawing for a hydroponic marijuana cultivation system and a list of items needed to build the system.

On May 28, 2014, a federal grand jury in the Eastern District of Texas returned a superseding indictment charging Holley with three counts: one count of conspiracy to commit a drug trafficking crime in violation of 21 U.S.C. § 846, one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Prior to trial, Holley moved to suppress the evidence discovered during the searches of the Gray Wolf Trail, Winterwood Lane, and McShann Road houses. Holley argued, in relevant part, that the dog sniffs used to obtain the warrants for the Gray Wolf Trail and Winterwood Lane houses violated the Fourth Amendment, relying principally on the Supreme Court's decision in Florida v. Jardines.1 The district court denied all three motions to suppress.

Holley's case was tried to a jury from June 3-6, 2014. The Government presented testimony from one of Holley's former customers, Meina Azez, and two of Holley's former co-defendants who pleaded guilty and agreed to cooperate, Justin Brown and Jason Sirovica. Brown testified that he bought large quantities of marijuana from Holley on a regular basis. At some point, he started his own grow operation using seeds extracted from marijuana purchased from Holley. Brown explained that two individuals helped him with his grow operation, Corey Armstrong and Jason Sirovica. Brown elaborated that a third individual, Nick Neighbors, assisted both him and Holley. Brown also recounted that Holley and his associate, Michael Strickland, unexpectedly stopped by his " grow room" on one occasion. Holley and Strickland noticed that Brown's plants were healthy and producing well. As a result, they asked " what chemicals [he] was using," and Brown told them. Sirovica testified consistently with Brown. He confirmed that he and Brown used to buy marijuana from Holley and started growing their own. Sirovica testified that he and Brown worked together, although they both grew marijuana separately as well. He added that Strickland--who is an electrician--helped him wire one of his " marijuana grows." The Government established through other witnesses that: (1) the Winterwood Lane house was leased in Holley's name; (2) Strickland was listed as the emergency contact on the lease for the Winterwood Lane house; and (3) the H& K handgun found at the Gray Wolf Trail house had been manufactured in Germany.

At the close of the Government's case, Holley moved for a judgment of acquittal. Following a thorough review of the evidence, the district court denied this motion. The jury subsequently returned a guilty verdict on all counts. Holley renewed his motion for a directed verdict, but the district court again denied it. In March 2015, the district court sentenced Holley to 185 months of imprisonment followed by 8 years of supervised release. Holley timely appealed to this Court.

II.

On appeal, Holley presses four arguments: (1) the district court erred in denying the motions to suppress; (2) there was insufficient evidence to convict on Count One because the Government proved only that he conspired to distribute marijuana, not marijuana plants; (3) there was insufficient evidence to convict on Count Three because the Government proved only that he used a gun to further a conspiracy to distribute marijuana, not a conspiracy to distribute marijuana plants; and (4) there was insufficient evidence to convict on Counts Two and Three because the Government proved only that the H& K handgun moved in foreign commerce, not interstate commerce.

A.

Holley argues that the district court erred in denying all three motions to suppress. As below, he urges that the dog sniffs of the Gray Wolf Trail and Winterwood Lane houses violated the Fourth Amendment under the Supreme Court's recent decision in Florida v. Jardines. He further argues that the McShann Road warrant was fruit of the poisonous tree because it was based in part on these searches. The Government responds that the dog sniffs did not violate the Fourth Amendment. Alternatively, the Government argues that the good faith exception applies. We start with the good faith exception. For purposes of our analysis, we assume without deciding that the dog sniffs violated the Fourth Amendment.

In his briefing, Holley argues that " Leon is not applicable in the instant case because the warrants were based upon the preceding unconstitutional and warrantless dog sniff searches." 2 That is, Holley urges that the Leon good faith exception is categorically inapplicable when a warrant is obtained using tainted evidence--or is fruit of the poisonous tree. This position is inconsistent with this Court's recent decision in United States v. Massi.3 In Massi, this Court held that evidence seized pursuant to a warrant is admissible--even if the warrant was the product of an illegal search--if two requirements are met: (1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be " close enough to the line of validity" that an objectively reasonable officer preparing the...

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