U.S. v. Garcia-Cruz

• Decision Date: 30 October 1992
• Docket Number: No. 91-50758,GARCIA-CRU,D,91-50758
• Citation: 978 F.2d 537
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fredrickefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 537

978 F.2d 537

UNITED STATES of America, Plaintiff-Appellee, v. Fredrick GARCIA-CRUZ, Defendant-Appellant.

No. 91-50758.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1992.

Decided Oct. 30, 1992.

Steven F. Hubachek, Cohen, Hubachek & Riggs, San Diego, Cal., for defendant-appellant.

Michael E. Lasater, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before FARRIS, LEAVY, and TROTT, Circuit Judges.

FARRIS, Circuit Judge:

Fredrick Garcia-Cruz appeals his jury conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1988), and his sentence imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1988). Cruz argues that his conviction should be reversed because the district court erred in: (1) refusing his proffered jury instruction on constructive possession; (2) failing to hold a Franks hearing and failing to suppress evidence seized during a search of Cruz's residence; (3) admitting statements made by Cruz allegedly after his invocation of the right to remain silent; (4) denying Cruz's acquittal motion. Cruz also argues that sentence enhancement under the Armed Career Criminal Act was improper because his prior conviction as a felon in possession was not a "violent felony" under the Act. We affirm Cruz's conviction but vacate his sentence and remand for resentencing.

FACTS AND PROCEEDINGS

San Diego Police, along with a California State Parole officer, searched Cruz's residence on December 23, 1988. The search was conducted pursuant to both a state search warrant and the search and seizure conditions of Cruz's state parole. Cruz was arrested after the officers discovered a Ruger .357 magnum revolver in a kitchen cupboard.

During a subsequent custodial interview, initiated at Cruz's specific request, Cruz made self-incriminating statements concerning his possession of the revolver. The statements were made after Cruz had been informed of his Miranda rights, and after he voluntarily agreed to their waiver.

On September 26, 1990, the Grand Jury for the Southern District of California returned a one-count indictment against Cruz, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment also informed Cruz of the government's intention to seek sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Cruz had been convicted twice previously of assault with a deadly weapon and once of being a felon in possession of a concealable firearm.

Cruz was convicted of the charged offense on June 12, 1991, and was sentenced on October 21, 1991, to a prison term of 200 months. In calculating the sentence, the district court applied the Armed Career Criminal Act, finding that felon in possession was a predicate "violent felony" within the meaning of the Act.

DISCUSSION

1. Jury Instructions

Cruz argues that the district court erred by failing to give his proffered instruction on constructive possession. Where the question to be resolved is whether other instructions adequately covered the defense theory of the case, our review is de novo. See United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992). The same standard applies to whether the proposed instruction is supported by law. See id. Our review is for an abuse of discretion where the question is whether the factual foundation for a proposed instruction exists. Id.

"A proposed instruction regarding the [defendant's] theory of the case should be given if there is foundation for it in the evidence and it is supported by the law." United States v. Tabacca, 924 F.2d 906, 912 (9th Cir.1991) (citing United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir.1984)).

Cruz's proposed instruction read as follows:

Mere presence at the location to which the firearm is delivered, and status as the intended recipient of the firearm, without more, are not sufficient to demonstrate knowing possession unless it is proved, beyond a reasonable doubt, that the defendant actually asserted dominion and control over the firearm.

Constructive possession can be proved even where a defendant never actively "asserts" dominion and control over the contraband. See United States v. Terry, 911 F.2d 272, 279 (9th Cir.1990). Terry established a relatively passive standard, namely, whether the defendant "exercised" dominion over the contraband or the premises in which it was concealed. See id. at 278 n. 5. In Terry, we explicitly stated that possession could be based merely on "knowledge of the gun's location and [the defendant's] unhindered access to it...." 911 F.2d at 278. Cruz's proposed instruction implied a requirement that the defendant take some affirmative action, perhaps even amounting to a physical touching of the weapon, to establish constructive possession. There is no such requirement.

Cruz's proffered instruction was not supported by law. Further, the instructions given, which included an instruction indicating that mere presence or proximity to a firearm is insufficient, without more, to support a finding of possession, fairly and adequately covered the issues presented. Nothing more was required. See United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1992).

2. Franks Hearing and Motion to Suppress Evidence

a. Franks Hearing.

Cruz contends that the affidavit underlying the search warrant contained material falsities or omissions, and that the district court therefore erred in failing to conduct a hearing to determine the affiant's veracity. We reject the argument.

Where a defendant makes a substantial preliminary showing that a false statement was (1) deliberately or recklessly included in an affidavit submitted in support of a search warrant, and (2) material to the finding of probable cause for the issuance of that warrant, a district court must hold a hearing to investigate the affiant's veracity. United States v. Motz, 936 F.2d 1021, 1023 (9th Cir.1991) (applying Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). A hearing is also available where essential facts intentionally have been omitted. United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir.1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989).

Cruz failed to make a substantial showing that any material facts were deliberately or recklessly excluded from the affidavit. He argues that the affiant, Detective Grant Raybould, failed to include facts tending to undermine the credibility of the informant. Such a failure, even if negligent, does not, without more, satisfy the state of mind requirement of Franks. This is especially so when, as here, the primary "omission" readily can be gleaned from the affidavit. Cruz alleged that Raybould failed to reveal the informant's motivation to dissemble. The record refutes the argument. In considering the application to search Cruz's home, the Magistrate Judge could not have failed to recognize that the affidavit was based in part on information supplied by the driver of the van used in the drive-by shooting for which Cruz was a suspect, a person whose own situation was precarious at best.

The omissions that Cruz mentions are neither reckless nor intentional. See United States v. Davis, 714 F.2d 896 (9th Cir.1983) (affiant signed statement in the first person knowing it would mislead the magistrate into believing affiant had firsthand knowledge of the facts therein contained); United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended, 769 F.2d 1410 (9th Cir.1985) (affiant stated that he had investigated a lab blowup at the suspect's house the year before, but recklessly failed to mention the suspect purchased and moved into the residence after the explosion).

The alleged omissions are also immaterial. The pivotal question is whether an affidavit containing the omitted material would have provided a basis for a finding of probable cause. See United States v. Ippolito, 774 F.2d 1482, 1486 n. 1 (9th Cir.1985); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980). Even if the allegedly omitted facts had been inserted, probable cause would have remained.

Cruz further complains that Detective Raybould omitted facts tending to demonstrate that an insufficient nexus existed between the contraband sought and the premises searched. The affidavit contains no direct evidence that contraband would be found in Cruz's residence, but this is not controlling. See United States v. Poland, 659 F.2d 884, 897 (9th Cir.), cert. denied, 454 U.S. 1059, 102 S.Ct. 611, 70 L.Ed.2d 598 (1981). We indulge normal inferences about where criminals would be likely to hide property, taking into account the type of crime, the nature of the contraband, and the opportunity for concealment. Id. "The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." United States v. Ocampo, 937 F.2d 485, 490 (9th Cir.1991) (quoting United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir.1987)). The district court did not err in failing to hold a Franks hearing.

b. Parole Search.

Cruz assigns error to the district court's holding that the search was a valid parole search. A parole search is proper if conducted in a manner consistent with state law. See United States v. Wryn, 952 F.2d 1122, 1124 (9th Cir.1991); Latta v. Fitzharris, 521 F.2d 246, 252 (9th Cir.) (en banc), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975). Under California law, a parole agent may search the residence of a parolee if he has a reasonable suspicion that the "parolee is again involved in criminal activity, ... and that the search may turn up evidence of that activity...." People v. Burgener, 41 Cal.3d 505, 224 Cal.Rptr. 112, 132, 714 P.2d 1251, 1271 (1986). The suspicion must "be based on articulable facts which together with rational...