U.S. v. Winchester, 89-3761

• Decision Date: 01 November 1990
• Docket Number: No. 89-3761,89-3761
• Citation: 916 F.2d 601
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elton Royce WINCHESTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 601

916 F.2d 601

UNITED STATES of America, Plaintiff-Appellee, v. Elton Royce WINCHESTER, Defendant-Appellant.

No. 89-3761.

United States Court of Appeals, Eleventh Circuit.

Nov. 1, 1990.

Thomas S. Keith, Asst. Federal Public Defender, Pensacola, Fla., for defendant-appellant.

Stephen P. Preisser, Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee.

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

Before EDMONDSON and BIRCH, Circuit Judges, and RE ^*, Chief Judge.

RE, Chief Judge:

Defendant-appellant, Elton Royce Winchester, appeals from his conviction, after a jury trial, for possession of a firearm after having been convicted of "a crime punishable by imprisonment for a term exceeding one year," under 18 U.S.C. Sec. 922(g)(1) (1988), and possession of a firearm while "a fugitive from justice," under 18 U.S.C. Sec. 922(g)(2) (1988). Winchester also appeals from the district court's imposition of consecutive sentences.

Prior to trial, Winchester had moved to suppress the firearm, contending that the warrantless search of his rented cottage by several United States Marshals violated his fourth amendment rights. The district court denied the motion, stating that Winchester, who had driven away from the cottage while it was the subject of surveillance by uniformed police officers, had abandoned the cottage and the property contained in it, prior to the search.

Winchester contends that the trial court erred in denying his motion to suppress the firearm, and in failing to instruct the jury The questions presented are:

that, in order to convict Winchester of the offenses charged, the government must prove that he "knowingly possessed" the firearm. Winchester also contends that the district court erred in imposing consecutive sentences when both offenses were based on the possession of the same firearm at the same time.

(1) whether the district court erred in determining that the search by law enforcement officers did not violate Winchester's fourth amendment rights because, prior to the search, Winchester had abandoned the cottage and all property contained in it, including the firearm;

(2) whether the district court erred in refusing to instruct the jury that, to be convicted of the offenses charged, Winchester had to "knowingly possess" the firearm; and

(3) whether the district court erred in sentencing Winchester, after his conviction on the two offenses charged, to consecutive terms of imprisonment for possession of the same firearm at the same time.

Since we find that the district court did not err in denying Winchester's motion to suppress, or in its jury instructions, we affirm the convictions. Since we find, however, that the district court erred in imposing consecutive sentences, we reverse and remand for resentencing.

BACKGROUND

After receiving information, on September 30, 1987, that Elton Royce Winchester, a federal fugitive, was living at a housing complex in Pensacola, Florida, the United States Marshals Service began a stakeout of the complex. On October 1, the Pensacola Office of the Marshals Service received further information indicating that Winchester was living in cottage C. At 4:00 p.m. on October 1, the marshals observed a male and female drive up to cottage C in a Lincoln Continental, park, and enter the cottage. Later, the male left the cottage, got into a Dodge automobile, and drove away. It was later determined that the male was Winchester.

Subsequently, after obtaining the consent of the female, Jerilyn Sachs, the marshals searched the cottage. Behind a sofa, the marshals discovered a travel bag, containing papers and photographs indicating that it belonged to Winchester. A firearm, a 9 mm. Glock, was also found in the travel bag.

On September 28, 1988, Winchester was indicted on two counts of possession of a firearm, under 18 U.S.C. Sec. 922(g)(1) and 18 U.S.C. Sec. 922(g)(2). Winchester moved to suppress the firearm, asserting that the search violated the prohibition against unreasonable searches and seizures of the fourth amendment to the United States Constitution. The district court concluded that prior to the search, Winchester had abandoned the cottage and all property in it, and, therefore, denied the motion. The case was tried before a jury and, on July 20, 1989, the jury returned a verdict of guilty on both counts. Winchester was sentenced to two consecutive terms of imprisonment of four years.

DISCUSSION

1. Motion to Suppress

The concept of abandonment, in fourth amendment law, "involves a factual issue which is generally reviewed under a clearly erroneous standard." United States v. McKennon, 814 F.2d 1539, 1545 (11th Cir.1987). Furthermore, in determining whether there has been an abandonment, "the critical inquiry is 'whether the person prejudiced by the search ... voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.' " Id. at 1546 (emphasis in original) (quoting United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir.), cert. denied, 459 U.S. 871, 103 S.Ct. 157, 74 L.Ed.2d 131 (1982)).

From the evidence adduced at trial, it is clear that there was sufficient evidence for the district court to conclude that, when Winchester left the cottage, he had abandoned The marshals also testified about the events leading up to the search of Winchester's cottage. Deputy Marshal McGregor stated that, upon leaving the cottage, Winchester "drove right past" marked police cars and a "bed" of approximately twenty-five police officers who were preparing for a stakeout of the cottage. Deputy Marshal McGregor further stated that:

                the cottage and all property contained in it.  The government presented the testimony of several Deputy United States Marshals.  Deputy Marshal James McGregor testified that Winchester had been a federal fugitive since 1985, and that Winchester "knew he was a wanted fugitive."    Deputy Marshal McGregor also stated that Winchester had written several letters to the Marshals Service, taunting them at their inability to catch him.  A second officer, Deputy Marshal Eric Thompson, testified that Winchester had a history of taunting the marshals.  Deputy Marshal Thompson stated that, in 1985, shortly after evading an attempted arrest, Winchester sent the Marshals Service a letter and a photograph of himself
                

as Mr. Winchester was leaving, I could see uniformed deputy sheriffs and SWAT members from the Escambia County Sheriff's Office quite visible, there was no doubt in my mind that these were police officers and I would find it very hard to believe that anyone in the immediate area would not see these police officers.

In addition, events that occurred after the abandonment may be considered by the court as evidence of the defendant's intent to abandon the property at the previous time. See United States v. Levasseur, 816 F.2d 37, 44 (2d Cir.1987). Deputy Marshal McGregor testified that he remained at the cottage until midnight, and that Winchester did not return. Deputy Marshal Eric Thompson testified that, the day after the search, he received a telephone call from a person who identified himself as Winchester. Deputy Marshal Thompson stated that the person referred to the type of gun that had been seized at the cottage, and asked Thompson " 'How do you like that Glock?' "

Hence, the district court was not clearly erroneous in its determination that, prior to the search, Winchester abandoned the cottage and the property contained in it, including the firearm. Accordingly, we conclude that the court did not err in denying Winchester's motion to suppress.

2. Jury Instructions

It is axiomatic that, in a criminal case, the instructions given to the jury must require the jury to find every element of the crime charged, under the proper standard of proof. See Cabana v. Bullock, 474 U.S. 376, 384, 106 S.Ct. 689, 695, 88 L.Ed.2d 704 (1986). Nevertheless, it is well established in this circuit that the district court's failure properly to instruct the jury does not always amount to reversible error. Rather, the refusal of the district court to give a requested instruction to the jury "constitutes reversible error if and only if the requested instruction (1) is correct, (2) is not substantially covered by other instructions which were delivered, and (3) deals with some point in the trial so 'vital' that the failure to give the requested instruction seriously impaired the defendants' ability to defend." United States v. Stone, 702 F.2d 1333, 1339 (11th Cir.1983). See also United States v. Gold, 743 F.2d 800, 819 (11th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). Furthermore, we have stated that "the district court has broad discretion in formulating its charge as long as the charge accurately reflects the law and the facts." Gold, 743 F.2d at 819.

In this case, it is not disputed that, in order for Winchester to be convicted under 18 U.S.C. Sec. 922(g)(1) and (2), it must be proved that he "knowingly possessed" the firearm. See, e.g., United States v. Sherbondy, 865 F.2d 996, 1001-02 (9th Cir.1988).

Winchester contends that "the trial court erred in refusing to instruct the jury that it had to be proven that the defendant knowingly possessed the firearm in question." Winchester asserts that "[t]he trial It is clear, however, that under the standard established by this circuit, the jury instructions in this case do not constitute reversible error. We are satisfied that the requirement that Winchester have "knowingly possessed" the firearm was "substantially covered by other instructions which were delivered by the district court." Stone, 702 F.2d at 1339. On the issue of "possession," the court charged the jury that:

court's failure to instruct the jury regarding 'knowingly' was very prejudicial to the...