U.S. v. Ayoub

• Decision Date: 16 August 2007
• Docket Number: No. 06-1610.,06-1610.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael AYOUB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.3d 532

UNITED STATES of America, Plaintiff-Appellee, v. Michael AYOUB, Defendant-Appellant.

No. 06-1610.

United States Court of Appeals, Sixth Circuit.

Argued: July 24, 2007.

Decided and Filed: August 16, 2007.

ARGUED:

Jonathan M. Epstein, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Jeanine M. Jones, Assistant United States Attorney, Detroit, Michigan, for Appellee.

ON BRIEF:

Jonathan M. Epstein, Bradley R. Hall, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Jeanine M. Jones, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.^*

OPINION

R. GUY COLE, JR., Circuit Judge.

Defendant-Appellant Michael Ayoub appeals his federal convictions for being a felon in possession of a firearm and for possessing marijuana with intent to distribute it. He contends that (1) the evidence should have been suppressed, because the officers who searched his parents' home without a warrant did not obtain valid consent for the search; (2) the convictions must be reversed because stipulations to essential elements of the charges were never admitted into evidence; and (3) evidence of his prior drug-related activity was unduly prejudicial and, therefore, improperly admitted as evidence of prior bad acts under Federal Rule of Evidence 404(b). As discussed below, each of these contentions is without merit. We therefore AFFIRM.

I. BACKGROUND

On August 11, 2004, Department of Homeland Security Special Agent Corey Howe received information from Ayoub's half-brother, Antonio Puzai, that Ayoub was engaged in drug activity at Ayoub's parents' house on Steadman Street in Dearborn, Michigan. Ayoub's parents, the owners of the home, were in Lebanon.

Agent Howe contacted Dearborn Police Officer Luke Cosenza to arrange surveillance of the Steadman Street house. During the surveillance, officers saw Ayoub at the home. When he left in his car, Dearborn Police pulled him over in a traffic stop. Ayoub consented to a search of his person and his car, but the police found no contraband, and he was allowed to leave. The officers did not ask Ayoub for consent to search the home.

Puzai told the officers that his sister (Ayoub's half-sister), Raja Atoui, was in control of the home and had a key. Agent Howe, Officer Cosenza, and Puzai went to Atoui's home to seek her consent to search her parents' home. The officers spoke with Atoui, and her daughter translated at least some of the conversation. The officers confirmed that Atoui was the caretaker of her parents' home while they were in Lebanon. She signed a consent-to-search form and provided the officers with a key to the home.

The officers proceeded to the Steadman Street house and entered. During the search, they located drug paraphernalia, scales, bowls, plastic bags, cutting agents, and other materials used to package drugs. The officers also found a Llama .380 handgun and a Bryco .9mm handgun. In the garage, they found approximately one pound of marijuana in the rafters.

As the officers were removing the marijuana from the rafters, Ayoub arrived in his car. Ayoub exited his car, removed his shirt, and spun around in circles, proclaiming, "The weed is mine. Take me to jail. You ruined my life." (Joint Appendix ("JA") 307.) Officers arrested Ayoub and took him to the Dearborn Police Department. Agent Howe and Officer Cosenza returned the key to Atoui and then went to the police station. Ayoub waived his Miranda rights and told the police that he bought the marijuana several days earlier for $800. He also stated that he bought the handguns approximately one year earlier. He then wrote out a statement admitting that he owned the marijuana and the firearms.

A two-count indictment charged Ayoub with (1) being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), and (2) possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1)). Ayoub moved to suppress the evidence found at the home, contending that the search was improper. Ayoub also moved to suppress evidence of his 2001 guilty plea to attempted possession with intent to distribute a controlled substance. The district court denied these motions.

On November 15, 2005, the first day of trial, the Government advised the district court of proposed stipulations regarding the toxicology of the narcotics (i.e., that the substance was marijuana), the interstate nexus regarding the firearms, and Ayoub's 2001 conviction. The stipulations were never admitted into evidence, but the court referenced two of them (interstate nexus and prior felony) in the jury instructions. Additionally, Ayoub's counsel referenced Ayoub's prior conviction during jury selection, and the Government presented testimony regarding the underlying facts of that prior conviction for the purposes of showing that the marijuana in the present case belonged to Ayoub and that he intended to distribute it. Ayoub's written confession stating that the substance was marijuana was entered into evidence, and Ayoub's counsel repeatedly referred to the substance as marijuana when cross-examining Agent Howe. The jury convicted Ayoub on both counts, and the district court sentenced him to fifty-five months in prison. Ayoub timely appealed.

II. DISCUSSION

As stated, Ayoub challenges his conviction on three grounds. First, he contends that the search revealing the guns and drugs was invalid. Second, he contends that the evidence was insufficient to support his conviction. Finally, he contends that evidence of his prior drug crime was improperly admitted under Fed.R.Evid. 404(b). We discuss each contention in turn.

A. The Search

Ayoub argues that the search of his parents' home was invalid and that the district court should have accordingly granted his motion to suppress the evidence discovered there. He says that Atoui lacked authority to consent to the search. He also contends that, even if she had this authority, she did not voluntarily consent.

When reviewing a district court's denial of a suppression motion, we accept the district court's factual findings unless they are clearly erroneous, and we consider its legal conclusions de novo. United States v. Williams, 224 F.3d 530, 532 (6th Cir.2000).

The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)), or "from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected," United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

Common authority is not to be implied "from the mere property interest a third party has in the property, . . . but rests on mutual use of the property by persons generally having joint access or control for most purposes . . . ." Id. at 171 n. 7, 94 S.Ct. 988. "The burden of establishing that common authority rests upon the State." Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793. The exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant. Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (citing Rodriguez, 497 U.S. at 186, 110 S.Ct. 2793). In other words, a search consented to by a third party without actual authority over the premises is nonetheless valid if the officers reasonably could conclude from the facts available that the third party had apparent authority to consent to the search. See Rodriguez, 497 U.S. at 186-89, 110 S.Ct. 2793. But if a potential defendant with self interest in objecting to the search is present and actually objects, then a third party's permission does not suffice for a reasonable search. Randolph, 547 U.S. at 121, 126 S.Ct. 1515. If that potential objector is "nearby but not invited to take part in the threshold colloquy," on the other hand, that potential objector "loses out," and the search will be deemed valid. Id.

Applying these principles here, we conclude that Atoui had authority to consent to the search, and that the district court did not err in concluding that she voluntarily provided that consent.

1. Atoui Had Authority (or Apparent Authority) to Consent

Helpful to assessing Atoui's authority to consent here — especially in light of Ayoub's asserted superior possessory interest in the searched home — is our decision in United States v. Jones, 335 F.3d 527 (6th Cir.2003), where we concluded that officers lacked lawful authority to enter a home. Federal officers had information that the defendant possessed firearms and drugs and was wanted on an outstanding federal arrest warrant. Id. at 529. An officer pulled the defendant over in his car and arrested him on the federal warrant. Id. The defendant refused to consent to a search of his home. Id. As a result of surveillance conducted before the arrest, the officers knew that two other individuals were at the defendant's home. Id. The officers had observed a man, later determined to be an overnight guest named Dickason, working on a car in the driveway, and a second man, later determined to be one Teasley, bringing food and water to dogs that were living at the home. Id. Two officers went to the home to identify these individuals. Id. Teasley let one of the officers inside the home, where the officer saw Dickason. Id. at 530. After some questioning, Dickason...