U.S. v. Dunn, No. 02-14182.

• Decision Date: 19 September 2003
• Docket Number: No. 02-14182.
• Citation: 345 F.3d 1285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Doyle DUNN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1285

345 F.3d 1285

UNITED STATES of America, Plaintiff-Appellee, v. John Doyle DUNN, Jr., Defendant-Appellant.

No. 02-14182.

United States Court of Appeals, Eleventh Circuit.

September 19, 2003.

W. Carl Lietz, III, Mildred Geckler Dunn and Stephanie Kearns (Fed. Pub. Defenders), Fed. Def. Program, Inc., Atlanta, GA, for Dunn.

Todd C. Alley, Amy Levin Weil, Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT and MARCUS, Circuit Judges, and MILLS^*, District Judge.

MARCUS, Circuit Judge:

This direct criminal appeal stems from John Doyle Dunn, Jr.'s conviction of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On appeal, Dunn argues that the district court erred by denying his motions (1) to suppress statements he made to, and physical evidence collected by, law enforcement officers; (2) to dismiss the indictment against him based on statutory and constitutional speedy trial violations; and (3) to dismiss the indictment against him based on the unconstitutionality of section 922(g). After thorough review, we are persuaded by none of appellant's contentions, and, accordingly, affirm.

I

The basic facts developed at a suppression hearing are these. The Housing Authority of the City of Atlanta ("AHA") is a public entity charged with the responsibility of operating Atlanta's public housing communities. Beginning on March 15, 1999, AHA began contracting with Kelly Security, Inc. ("Kelly") for the provision of security guard services at these communities. Kelly guards¹ are armed and carry badges, and they coordinate their activities with the Atlanta Police Department. Notably, the AHA-Kelly contract expressly contemplates that the guards may make arrests.

At approximately 12:30 pm on April 19, 2000, three Kelly guards — Lieutenant Larry D. Goodwin, Sergeant Kwane Martin and Sergeant Ernest Dixon — were working at the Harris Homes housing complex when they heard a volley of gunshots. There is some discrepancy in the guards' accounts of exactly what happened next. Goodwin said that upon first hearing the shots the guards moved in the general direction from which the gunfire had come, but before they were able to locate the shooter they heard a second set of shots. He testified that he drove with Martin and Dixon to the area from which they thought this second volley had come, and encountered Dunn approximately 30 seconds to a minute after this second round of gunfire. Martin, by contrast, said that there was a third round of gunshots and that only after this third volley did the guards spot Dunn. Martin testified that there was at least a 5 minute interval between this third volley and their encounter with appellant.

At all events, the three Kelly guards soon spotted Dunn putting a loaded SKS assault rifle into the hatchback storage area of his Camaro. The guards drew their weapons and instructed appellant to stop and put his hands up. Appellant complied and was quickly handcuffed and frisked. Although he was not placed in the guards' vehicle and was advised that he was not under arrest but rather was being detained pending the arrival of the Atlanta police (who the guards called once Dunn had been secured), Goodwin and Martin both conceded that appellant was not free to leave. Within 10-15 minutes, Atlanta police Officer Hall arrived on the scene and promptly placed Dunn in the back seat of his cruiser.

Appellant stresses that between the time of his initial detention and Officer Hall's arrival, two witnesses, one of whom was a neighbor named Skyree who was known to the guards, informed the guards that Dunn was not responsible for the gunshots. However, appellant says that the guards did not investigate or even consider these witnesses' exculpations of him. Nor, he asserts, did the guards check the ground for shell casings.

Shortly after placing Dunn in the back seat of his patrol car, Hall notified the Atlanta Police Department Gun Unit that he needed a gun investigator on the scene. In response to this request, a Detective Argano arrived approximately 10 minutes after Hall's call. After being briefed by Hall and the 3 guards as to the nature of the situation, Argano Mirandized Dunn, and appellant admitted to owning the assault rifle and to being a convicted felon. Argano also examined the rifle in an effort to determine whether it had recently been fired, although he subsequently could not recall what this examination revealed. Detective Argano confirmed Dunn's status as a felon by having the Gun Unit conduct a record check, recovered the weapon and arrested Dunn for being a felon in possession of a firearm. The total time that elapsed between the guards' initial detention of appellant and his arrest was 20-30 minutes.

On November 21, 2000, appellant was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He first appeared in court on February 9, 2001, when he pled not guilty. Dunn was held in custody pending his February 14, 2001 detention hearing, at which a Magistrate Judge ordered him detained without bond. On February 15, 2001, appellant moved to suppress the statements he made to Detective Argano and the evidence collected at the scene, arguing that they were obtained as a product of a de facto arrest without probable cause. On March 14, 2001, the Magistrate Judge held a hearing on these motions, and on June 19, 2001, after undertaking a searching review of our caselaw and that of the Supreme Court, he issued a Report and Recommendation that Dunn's motions be denied.

On the same day, the Magistrate Judge certified the case as ready for trial. On July 3, 2001, appellant filed objections to the Report and Recommendation and moved for additional time to brief his objections, ultimately filing his brief on July 17, 2001. On July 18, 2001, Dunn moved to dismiss the indictment based on a Commerce Clause challenge to § 922(g), and the government responded to this motion the following day. Subsequently, on July 27, 2001 appellant moved for a "stipulated bench trial," and on August 1, 2001 the government filed a response in which it indicated that it did not oppose the motion, but that it expressly reserved the right to introduce additional evidence at the bench trial in order to make the record complete.

Counsel subsequently exchanged letters regarding the nature of the stipulations and evidence in the case, and in early August, 2001 the government invited defense counsel to schedule the bench trial "at the earliest convenience of the Court (and our schedules)." On February 21, 2002, appellant moved to dismiss the indictment based on alleged constitutional and statutory speedy trial deprivations. The government responded to this motion on March 4, 2002, and on May 2, 2002 the district court denied the motion. In the same order, the court denied Dunn's motion to dismiss the indictment based on the unconstitutionality of § 922(g) and adopted the Magistrate Judge's Report and Recommendation that the suppression motion be denied. The court scheduled trial for May 15, 2002.

On that date, a non-jury trial was held before the district court. Appellant informed the court that he did not contest the facts and evidence presented during the hearing on his motion to suppress evidence, and the parties stipulated that the essential elements of the offense charged had been established in this case. The district court found Dunn guilty of being a felon in possession of a firearm and sentenced him to 32 months imprisonment, 3 years supervised release and a $100 special assessment. This appeal ensued.

II

In an appeal from the denial of a suppression motion, we apply a mixed standard of review, "reviewing the court's findings of fact for clear error and its application of the law to those facts de novo." United States v. Tinoco, 304 F.3d 1088, 1116 (11th Cir.2002) (citing United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.2000)), cert. denied sub nom., Hernandez v. United States, ___ U.S. ___, 123 S.Ct. 1484, 155 L.Ed.2d 231 (2003).

Similarly, "[w]e review a claim under the Speedy Trial Act de novo and review a district court's factual determinations on excludable time for clear error." United States v. Williams, 314 F.3d 552, 556 (11th Cir.2002) (citation omitted). The same standard applies in the context of appellant's constitutional speedy trial claim. See United States v. Clark, 83 F.3d 1350, 1352 (11th Cir.1996) (citation omitted). By contrast, we review a refusal to dismiss an indictment under Fed.R.Crim.P. 48(b) for abuse of discretion. See United States v. Butler, 792 F.2d 1528, 1534 (11th Cir.1986) (citation omitted).

Whether Congress possessed the authority under the Commerce Clause to enact section 922(g) is a question of law that we review de novo. See United States v. Lee, 173 F.3d 809, 810 (11th Cir.1999) (citation omitted).

A. The Suppression Motion

As a general rule, the Fourth Amendment to the United States Constitution prohibits state actors² from making searches or seizures of the person in the absence of probable cause. See United States v. Sharpe, 470 U.S. 675, 690, 105 S.Ct. 1568, 1577, 84 L.Ed.2d 605 (1985) (noting "`the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable'" (quoting Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979))). As the Supreme Court recently explained, "[a] seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, `taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Kaupp v. Texas, ___ U.S. ___, 123 S.Ct. 1843, 1845, 155 L.Ed.2d 814 (2003) (citing Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991)) (...