U.S. v. Anderson

• Decision Date: 15 August 1988
• Docket Number: No. 87-2905,87-2905
• Citation: 853 F.2d 313
• Parties: -6047 UNITED STATES of America, Plaintiff-Appellee, v. Joe Alvin ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 313

853 F.2d 313

62 A.F.T.R.2d 88-6047

UNITED STATES of America, Plaintiff-Appellee, v. Joe Alvin ANDERSON, Defendant-Appellant.

No. 87-2905.

United States Court of Appeals Fifth Circuit.

Aug. 15, 1988.

Thomas D. Moran, Stanley G. Schneider, Houston, Tex., for defendant-appellant.

Paula C. Offenhauser, Frances H. Stacy, Don Degabrielle, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before GOLDBERG, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Joe Alvin Anderson (Anderson) appeals his conviction of three firearm offenses under 26 U.S.C. Sec. 5861(d). Anderson raises three complaints on his appeal, namely, that his motion to suppress the fruits of the search of his residence should have been granted, that the district court erred in its jury instructions on knowledge, and that the evidence is insufficient to support his conviction on any of the three counts. We reject these contentions and accordingly affirm.

Facts and Proceedings Below

On October 27, 1986, several law enforcement officers from various agencies entered Anderson's residence at 1902 Crosby-Dayton Road in Harris County, Texas, pursuant to a search warrant. ¹ During the search, an agent found a .38 caliber "machine pistol" underneath a bed. When asked whether he owned the pistol, Anderson admitted that he did. Subsequently, the agents learned that there was a vault in Anderson's house. Confronted with this information, Anderson disclosed the existence of a hidden vault behind a bookcase hinged over a false wall in the room that he used for loading ammunition. This vault contained numerous weapons. Among these weapons were a .45 caliber pistol, a silencer, and a "homemade booby trap device." Also in this vault were two boxes of spent ammunition casings and manuals giving step-by-step instructions for the conversion of semiautomatic pistols into fully automatic ones and describing the fabrication of silencers.

The .45 caliber pistol was, by design and manufacture, semiautomatic and "blow-back operated or recoil operated," meaning that it would fire one round by a single depression of the trigger and was fed by a magazine cartridge with multiple round capacity. The pistol had been modified, after manufacture, by cutting its "disconnecter" to permit the firing of multiple shots by a single depression of the trigger. As a result of this modification, the pistol was fully automatic and could fire at a cyclic rate of approximately one thousand rounds per minute. In layman's terms, this pistol was an "M-10." The .38 caliber pistol was essentially a smaller version of the .45 caliber pistol. Although the .38 caliber pistol was also a semiautomatic pistol by design and manufacture, it too had been modified after manufacture. The modification in this instance consisted of cutting, grinding, or polishing a "strip" magazine to convert the weapon from semiautomatic to fully automatic operation. This pistol, as so modified, also had a cyclic rate of fire of approximately one thousand rounds per minute. The silencer was the rear portion of a siotic-type silencer and was designed to fit an M-10, .45 caliber pistol. Also recovered were components used in the front portion of such a silencer. None of these weapons was registered in Anderson's name in the National Firearms Registration and Transfer Record.

On May 1, 1987, an indictment was filed in the United States District Court for the Southern District of Texas charging Anderson with four counts--one each for the .45 caliber pistol, the .38 caliber pistol, the silencer, and the "booby trap"--of unlawful possession of firearms not registered in the National Firearms Registration and Transfer Record contrary to 26 U.S.C. Sec. 5861(d). Anderson pleaded not guilty. He also filed a motion to suppress evidence on the ground that the search of his residence was conducted pursuant to a search warrant issued without probable cause. The district court held a pretrial hearing on this motion. After hearing the testimony of a detective with the Harris County, Texas Sheriff's Department, who was the affiant on the affidavit that accompanied the request for the search warrant, the district court determined that there was probable cause to support the issuance of the search warrant and denied Anderson's motion to suppress.

Anderson was thereafter tried before a jury. Anderson unsuccessfully objected to those portions of the court's jury charge concerning the knowledge on his part that the government was required to establish in order to convict him. The jury found Anderson guilty of the counts involving the two pistols and the silencer, but not guilty of the "booby trap" count. Anderson was sentenced to three concurrent ten-year terms, with execution of the sentence suspended during a five-year period of supervised probation. The district court also imposed a special assessment of $50 on each count for a total of $150. This appeal followed.

Discussion

Search warrant

The first issue is whether the district court erred in determining there was probable cause to support the search warrant for Anderson's residence at 1902 Crosby-Dayton Road. Our review of the district court's determination of the correctness of the magistrate's decision that the affidavit adequately established probable cause is made without deference to the district court's ruling. See United States v. Phillips, 727 F.2d 392, 394-95 (5th Cir.1984); United States v. Freeman, 685 F.2d 942, 948 (5th Cir.1982). However, in determining whether the magistrate correctly decided this issue, we refrain from any sort of de novo review and instead accord "great deference" to the magistrate's decision. See United States v. Jackson, 818 F.2d 345, 348 (5th Cir.1987); Phillips, 727 F.2d at 395; Freeman, 685 F.2d at 948. As a result, our task is simply to determine "whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant." Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721 (1984) (per curiam); see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). We review the warrant challenged here in light of these principles.

In challenging the existence of probable cause to support the search warrant for his residence, Anderson does not question the "basis of knowledge" of any informant supplying hearsay information, nor does he dispute the "veracity" of any such informant. See Gates, 103 S.Ct. at 2332. Rather, his sole contention is that the affidavit failed to establish a sufficient nexus between his residence and the evidence of crime that the law enforcement agents sought. We disagree.

Although the affidavit discussed Anderson's place of business at 1900 Crosby-Dayton Road as well as his residence at 1902 Crosby-Dayton Road, which was adjacent to the place of business, there is nothing in the affidavit that supports Anderson's argument that the affidavit tended to confine the described likely criminal activity to the business establishment and did not implicate the residence in or otherwise tie it to the criminal activity. Although some of the statements in the affidavit referred to the site of the alleged criminal activity (here, the manufacture of methamphetamine) as a salvage yard, there is nothing in the affidavit that suggests that the salvage yard did not also include the residence. On the contrary, at least one passage in the affidavit makes it clear that there were numerous pieces of salvage on the premises of Anderson's residence, strongly suggesting that in fact the salvage yard was not confined solely to the business premises at 1900 Crosby-Dayton Road, but also included the residence at 1902 Crosby-Dayton Road. Additionally, there are other statements in the affidavit that directly tie the residence to the criminal activity for which a warrant was sought. For instance, the affiant stated that he had personally observed a person who was known to him as a "methamphetamine cook" drive into the driveway nearest the residence and walk to the rear of the residence. Further, the affidavit set forth facts showing that Anderson's residence and business establishment were immediately adjacent properties, that they were under the control of the same person or persons, and that there was no distinct physical or functional separation between them. Considering all of these matters together, we conclude that the affidavit established a sufficient nexus between Anderson's residence and the evidence sought to support the issuance of a search warrant, and that under the totality of the circumstances reflected by the affidavit the magistrate could properly determine that there was a fair probability that evidence of the mentioned criminal activity would be found in the residence.

In a case presenting facts less compelling than those involved here, we found that there was substantial evidence to support the magistrate's determination that probable cause existed to support the issuance of a search warrant. See United States v. McKinney, 758 F.2d 1036, 1043-44 (5th Cir.1985) (holding that there was a sufficient nexus between the items sought--bomb paraphernalia--and the place to be searched--a mine in Colorado that was owned by defendant--to satisfy the test of probable cause where the affidavit established that defendant was involved in an extortion plot, that this scheme was centered in Colorado, that some components of the bombs used in the plot had been purchased in Colorado, that defendant supplied the explosive devices used to manufacture the bombs, and that the mine contained structures suitable for the storage of explosive devices).

We therefore hold that the district court did not err in determining that the magistrate could properly conclude that there was probable cause to support the issuance of the search warrant respecting...