U.S. v. King

• Citation: 119 F.3d 290
• Decision Date: 24 July 1997
• Docket Number: 95-5936,Nos. 95-5726,s. 95-5726
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andre Cardell KING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Chalmers Lavette HENDRICKS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 290

119 F.3d 290

UNITED STATES of America, Plaintiff-Appellee, v. Andre Cardell KING, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Chalmers Lavette HENDRICKS, Defendant-Appellant.

Nos. 95-5726, 95-5936.

United States Court of Appeals Fourth Circuit.

Argued June 3, 1997.

Decided July 24, 1997.

ARGUED: James Ernest Gronquist, Charlotte, NC; Robert A. Flynn, Law Office of Marcia G. Shein, P.C., Atlanta, GA, for Appellants. Robert James Conrad, Jr., Assistant United States Attorney, Charlotte, NC, for Appellee. ON BRIEF: Marcia G. Shein, Law Office of Marcia G. Shein, P.C., Atlanta, GA, for Appellant King. Mark T. Calloway, United States Attorney, Charlotte, NC, for Appellee.

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

Affirmed in part, reversed in part, and remanded for resentencing by published opinion. Judge WILKINS wrote the opinion, in which Judge NIEMEYER and Judge HAMILTON joined.

OPINION

WILKINS, Circuit Judge:

Andre Cardell King and Chalmers Lavette Hendricks appeal their convictions for various charges related to their narcotics distribution activities. For the reasons set forth below, we affirm all of King's convictions and the majority of Hendricks' convictions. However, because--as the Government concedes--the evidence is insufficient to support Hendricks' conviction under 18 U.S.C.A. § 924(c)(1) (West Supp.1997), predicated upon a firearm that was found in his home, we reverse that conviction and remand for resentencing.

I.

Appellants' convictions stem from the investigation of Neville Smith, who led a cocaine distribution ring in the Charlotte, North Carolina area from 1991 until 1994. Beginning in the fall of 1993, Smith supplied King with kilogram quantities of cocaine which King then converted to cocaine base. King stored the cocaine base at Hendricks' apartment and distributed it with Hendricks' assistance.

On September 27, 1993, law enforcement officers received a tip from an anonymous informant that King had recently delivered cocaine to Hendricks' apartment and that the drugs had been transported in a blue rental vehicle and a Toyota Cressida. Shortly thereafter, the manager of the apartment complex where Hendricks lived reported complaints of suspected narcotics activity in and around Hendricks' apartment. Based on this information, Officer R.F. Busker of the Charlotte-Mecklenburg, North Carolina Police Department conducted surveillance of the apartment. Officer Busker observed heavy traffic flow consistent, in his experience, with narcotics dealing. At Officer Busker's direction, law enforcement personnel detained and searched two vehicles that had been observed leaving the apartment, one of which was a blue automobile that had been rented by King. Neither search revealed narcotics. Thereafter, Officer Busker observed Hendricks exit the apartment and drive away in a Toyota Cressida. He stopped the vehicle and, when Hendricks stepped out of the automobile, observed a bulge under the floor mat in front of the driver's seat. Upon closer inspection, Officer Busker found a loaded .357 revolver. A search of the vehicle incident to Hendricks' arrest for possession of the firearm revealed 59 pieces of cocaine base in the console between the front seats. Based upon these events, officers obtained a search warrant for Hendricks' apartment. During execution of the warrant, officers found $999 in cash; a nine millimeter handgun; a quantity of cocaine base; a digital scale; and several types of ammunition. Hendricks subsequently moved to suppress the weapon and cocaine base found in his automobile and the items seized during the search of his apartment, arguing that the initial stop of his vehicle was unlawful and that all of the evidence subsequently obtained constituted the tainted fruits of the illegal seizure. The district court denied the motion.

Hendricks and King were tried jointly. The jury returned a verdict of guilty as to each defendant for conspiracy to possess with the intent to distribute cocaine and cocaine base. See 21 U.S.C.A. § 846 (West Supp.1997). Additionally, Hendricks was convicted of possessing with the intent to distribute cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1981); two counts of using or carrying a firearm during and in relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c)(1); and being a felon in possession of ammunition, see 18 U.S.C.A. § 922(g)(1) (West Supp.1997). The jury convicted King of possessing with the intent to distribute cocaine, see 21 U.S.C.A. § 841(a)(1); using or carrying a firearm during and in relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c)(1); and being a felon in possession of a firearm, see 18 U.S.C.A. § 922(g)(1). Hendricks and King appeal their convictions, and we consider their challenges in turn.

II.

A.

Hendricks first challenges the legality of his conviction for being a felon in possession of ammunition. See 18 U.S.C.A. § 922(g)(1). This charge was predicated on the discovery of several types of ammunition during the search of Hendricks' apartment and on his 1990 state felony conviction for possession with the intent to sell and deliver a controlled substance. Hendricks argues that because North Carolina law permits a convicted felon to possess a firearm (and by implication, ammunition) in his home, see N.C. Gen.Stat. § 14-415.1(a) (Michie 1993), federal prosecution for the same conduct was improper. For the reasons that follow, we disagree.

Section 922(g)(1) prohibits, inter alia, the possession in or affecting interstate commerce of any firearm or ammunition by "any person ... who has been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year." The term "crime punishable by imprisonment for a term exceeding one year" excludes, however, "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C.A. § 921(a)(20) (West Supp.1997). Hendricks essentially maintains that N.C. Gen.Stat. § 14-415.1(a) restored his civil right to possess a firearm in his home immediately upon his release from state prison for the 1990 drug conviction, thereby rendering this conviction an improper basis for the federal felon-in-possession charge. Whether a defendant's civil rights have been restored is a legal question, which we review de novo. See United States v. Morrell, 61 F.3d 279, 280 (4th Cir.1995).

In determining whether a defendant's civil rights have been restored, we "look to 'the whole of state law' " to determine whether the state has returned to the defendant the rights to vote, to hold public office, and to serve on a jury. United States v. Hassan El, 5 F.3d 726, 734 (4th Cir.1993) (quoting United States v. McLean, 904 F.2d 216, 218 (4th Cir.1990)). And, while the restoration of rights need not be complete in order to preclude consideration of a conviction under § 922(g)(1), the quantity of rights restored must be more than de minimis. See id.

Here, Hendricks concedes that because he has not yet been unconditionally discharged from parole, his civil rights have not been restored under North Carolina law. See N.C. Gen.Stat. § 13-1(1) (Michie 1992) (providing for the automatic restoration of civil rights upon the unconditional discharge of an inmate, probationer, or parolee). Nevertheless, he maintains that the explicit grant of permission by a North Carolina statute to possess a firearm in his home constitutes a sufficient restoration of rights to preclude prosecution under federal law. In support of this position, Hendricks points to prior decisions which he asserts have upheld the right of a North Carolina felon to possess a firearm in his home. See United States v. Shoemaker, 2 F.3d 53, 56 (4th Cir.1993); United States v. McBryde, 938 F.2d 533, 535-36 (4th Cir.1991). However, Shoemaker and McBryde provide little support for Hendricks' position because in each of those cases the defendant's civil rights had been restored. See Shoemaker, 2 F.3d at 54; McBryde, 938 F.2d at 534.

We conclude that the fact that state law permitted Hendricks to possess a firearm in his home despite his status as a convicted felon whose civil rights had not been restored is not sufficient to insulate him from federal prosecution under § 922(g)(1). ¹ A prior felony conviction is exempt from use as a predicate offense under § 922(g)(1) only if the "defendant has had his or her civil rights and his or her firearm privileges restored." Hassan El, 5 F.3d at 733; see United States v. Clark, 993 F.2d 402, 403 (4th Cir.1993). When civil rights have not been restored, the right to possess a firearm is immaterial. See United States v. Thomas, 991 F.2d 206, 214 (5th Cir.1993) ("In the absence of the restoration of essentially all civil rights of the convicted felon ... the felon's isolated right to possess a firearm is of no import whatsoever."). Accordingly, because Hendricks' civil rights had not been restored, prosecution under § 922(g)(1) was proper regardless of whether possession of the ammunition in question was permitted by state law.

B.

Hendricks next maintains that the district court erred in denying his motion to suppress, arguing that Officer Busker could not have had a sufficiently reasonable suspicion of criminal activity in view of the fact that searches of the first two vehicles failed to uncover any contraband. Accordingly, he contends, the stop of his vehicle violated the Fourth Amendment and all evidence seized as a result of the improper detention should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 414-15, 9 L.Ed.2d 441 (1963). The Government responds that, contrary to Hendricks' assertions, the search of the blue rental vehicle in fact supported a...