Case: 16-17427 Date Filed: 12/14/2017 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17427
Non-Argument Calendar
________________________
D.C. Docket No. 5:16-cr-00013-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY WADE COFFELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(December 14, 2017)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 16-17427 Date Filed: 12/14/2017 Page: 2 of 16
After a jury trial, Timothy Coffell was convicted of possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possessing an
unregistered silencer that lacked a serial number, in violation of 26 U.S.C.
§ 5861(d) and (i). On appeal, Coffell argues that the district court erroneously
denied his motion to suppress and that the government’s evidence was insufficient
to show that he knew the homemade device found in his trailer was a silencer.
Coffell also argues, with the assistance of counsel appointed for this appeal, that
his trial counsel rendered ineffective assistance in various ways. After careful
review, we affirm Coffell’s convictions, without prejudice to his ability to raise his
claims of ineffective assistance in a motion to vacate under 28 U.S.C. § 2255.
I.
Before his arrest, Coffell lived in a trailer that he rented from BlueKey
Property Management Company (“BlueKey”). On February 2, 2016, BlueKey’s
maintenance man entered Coffell’s trailer while he was away, using a master key,
in order to replace his broken oven. Once inside, the maintenance man used a
screwdriver to open a locked door so that he could access the circuit-breaker box
and shut off power to the oven before replacing it. Inside the locked room, he
observed what appeared to be marijuana plants under grow lights that had been
connected to the circuit-breaker box. He took pictures of the marijuana plants with
his phone and contacted law enforcement.
2
Case: 16-17427 Date Filed: 12/14/2017 Page: 3 of 16
Based on the information provided by the maintenance man, law
enforcement obtained a search warrant for the trailer. Before the warrant was
executed, law enforcement also learned that Coffell had previously been convicted
of a felony. During a subsequent search of the trailer, officers found marijuana
plants, growing materials, and containers of harvested marijuana. In addition,
officers seized four firearms, nearly 1,500 rounds of ammunition, and a silencer.
After his arrest, Coffell was indicted on one count of possessing a firearm as
a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of
possessing a silencer that was not registered to him in the National Firearms
Registration and Transfer Record and that was not identified by a serial number, in
violation of 26 U.S.C. § 5861(d) and (i).
Coffell pled not guilty and then filed a motion to suppress, arguing that law
enforcement illegally searched his property in violation of the Fourth Amendment.
Coffell presented three main arguments for suppression. First, he argued that the
maintenance man’s entry into his trailer and locked bedroom violated his
reasonable expectations of privacy. Second, he maintained that law enforcement
exceeded the scope of the search warrant by searching for and seizing firearms and
ammunition. Finally, he contended that law enforcement omitted material
information from the search-warrant affidavit.
3
Case: 16-17427 Date Filed: 12/14/2017 Page: 4 of 16
The district court held an evidentiary hearing and then denied the motion to
suppress. The court found that the maintenance man’s actions did not violate the
Fourth Amendment because he was not a government actor, that the search of
Coffell’s trailer did not exceed the scope of the warrant, that the plain-view
doctrine independently authorized the warrantless seizure of firearms, ammunition,
and a silencer, and that no material information was omitted from the search-
warrant affidavit.
The case proceeded to trial before a jury. After the government’s case-in-
chief, Coffell moved for a judgment of acquittal, which the district court denied.
Coffell then presented his case, testifying in his own defense. Coffell did not
renew his motion for judgment of acquittal at the close of all the evidence. The
jury returned a guilty verdict on both counts charged in the indictment. Coffell
now appeals.
II.
We first address the denial of Coffell’s motion to suppress. When we
review the denial of a motion to suppress, “[w]e review the district court’s findings
of fact for clear error and its rulings of law and application of the law to the facts
de novo.” United States v. Sparks,
806 F.3d 1323, 1333 (11th Cir. 2015). A
factual finding is clearly erroneous only if, after reviewing the entire record, we are
left with “a definite and firm conviction” that the district court made a mistake.
Id.
4
Case: 16-17427 Date Filed: 12/14/2017 Page: 5 of 16
A.
Coffell first contends that suppression was warranted because the
maintenance man violated his reasonable expectations of privacy. But the
protection of the Fourth Amendment “extends to governmental action only.”
Sparks, 806 F.3d at 1334. “A search by a private person does not implicate the
Fourth Amendment unless he acts as an instrument or agent of the government.”
United States v. Steiger,
318 F.3d 1039, 1045 (11th Cir. 2003). And the Fourth
Amendment does not prohibit the government’s use of information discovered by a
private party who is not acting as a government agent.
Sparks, 806 F.3d at 1334.
Here, the Fourth Amendment was not violated because, as Coffell concedes,
the maintenance man was not acting as an instrument or agent of the government.
The maintenance man, without law enforcement’s prior knowledge, entered
Coffell’s trailer and his locked bedroom solely for the purpose of replacing his
oven. See
Steiger, 318 F.3d at 1045. Because the maintenance man entered
Coffell’s locked bedroom for reasons wholly unrelated to law enforcement, the
Fourth Amendment does not bar the government’s use of that information to obtain
a search warrant. See
Sparks, 806 F.3d at 1334.
B.
5
Case: 16-17427 Date Filed: 12/14/2017 Page: 6 of 16
Coffell next argues that law-enforcement officers exceeded the scope of the
search warrant by seizing firearms, ammunition, and a silencer. We hold that
seizure of these items was proper under the plain-view doctrine.
The Fourth Amendment requires that search warrants describe with
particularity “the place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV. “This requirement is aimed at preventing general,
exploratory rummaging in a person’s belongings.” United States v. Wuagneux,
683 F.2d 1343, 1348 (11th Cir. 1982) (internal quotation marks omitted).
We have “routinely recognized that firearms can be so connected to the sale
of narcotics that their seizure is implicitly authorized by a warrant to search for
narcotics.” United States v. Folk,
754 F.3d 905, 910 (11th Cir. 2014). Indeed, we
have stated that “[i]t is uniformly recognized that weapons are often as much ‘tools
of the trade’ as the most commonly recognized narcotics paraphernalia.” United
States v. Terzado-Madruga,
897 F.2d 1099, 1120 (11th Cir. 1990).
The district court found that seizure of the firearms, ammunition, and
silencer was impliedly authorized by the search warrant for evidence of drug
activity, because drugs and guns go together. The facts of this case, however, do
not suggest a strong connection between the two, as there was no evidence that
Coffell sold any of the marijuana he grew. Ultimately, however, we need not
address whether the search warrant implied authorization to seize firearms or
6
Case: 16-17427 Date Filed: 12/14/2017 Page: 7 of 16
ammunition because we agree with the district court’s alternative determination
that the plain-view doctrine nevertheless authorized the seizure. See
Folk, 754
F.3d at 911.
The plain-view doctrine permits the warrantless seizure of an item where
(1) “the officer is lawfully located in the place from which the seized object could
be plainly viewed”; (2) the officer has “a lawful right of access to the object itself”;
and (3) “the incriminating character of the item is immediately apparent.”
Id.
(quotation marks omitted). All three requirements are satisfied here.
The first two requirements were met because the firearms, ammunition, and
silencer were found during a valid search of Coffell’s trailer for evidence of drug
activity. In executing the search warrant, law-enforcement officers “had the right
to conduct a search as extensive as reasonably required to locate the items
described in the warrant.”
Id. (internal quotation marks omitted). Coffell does not
contest the district court’s factual finding, which is amply supported by the record,
that the searching officers discovered the firearms, ammunition, and silencer while
searching areas where evidence of drugs or drug activity reasonably could have
been found. Coffell suggests that the officers were subjectively motivated to
search for firearms and ammunition, but their subjective motivations are irrelevant.
See Brigham City, Utah v. Stuart,
547 U.S. 398, 404 (2006) (subjective
motivations are irrelevant in determining whether a law enforcement officer’s
7
Case: 16-17427 Date Filed: 12/14/2017 Page: 8 of 16
actions violated the Fourth Amendment). Accordingly, the officers were lawfully
located in a place from which the seized items could be observed and accessed.
Because law enforcement knew that Coffell was a convicted felon and
reasonably believed that the firearms, ammunition, and silencer in his trailer
belonged to him, the final prong of the plain-view doctrine was also satisfied. “A
firearm that reasonably appears to be in the possession of a convicted felon
qualifies as contraband—and is therefore subject to seizure under the plain view
doctrine.” See
Folk, 754 F.3d at 912. The same goes for the ammunition and
silencer, which § 922(g) likewise prohibits a convicted felon from possessing.1
See 18 U.S.C. § 922(g) (prohibiting the possession of “any firearm or
ammunition”);
id. § 921(a)(3)(C) (defining a “firearm” for purposes of § 922(g) as,
among other things, “any firearm muffler or firearm silencer”).
For these reasons, the district court properly concluded that seizure of the
firearms, ammunition, and silencer during a lawful search for evidence of drug
activity was permissible under the plain-view doctrine.
2
Cow.
1
Testimony from the suppression hearing reflects that officers were not immediately
sure what the silencer was and believed it could have been either a silencer or a pipe bomb.
Either way, the object appeared to be contraband.
2
Accordingly, we need not and do not consider the district court’s third alternative
determination—that law enforcement’s community-caretaker functions authorized seizure of
these objects to prevent others from entering the trailer and taking them.
8
Case: 16-17427 Date Filed: 12/14/2017 Page: 9 of 16
As a final challenge to the denial of his motion to suppress, Coffell argues
that law enforcement violated the Fourth Amendment by omitting material
information—his status as a convicted felon—from the search-warrant affidavit.
Coffell asserts that, if his status as a convicted felon “was to be used as a basis for
seizure of his firearms and ammunition, it should have been presented in a separate
search warrant and application.”
Search warrants must be based “upon probable cause, supported by Oath or
affirmation.” U.S. Const. amend. IV. Suppression may be warranted when
misrepresentations or omissions in a warrant affidavit materially affect the
probable cause determination. See Franks v. Delaware,
438 U.S. 154, 164–65,
171–72 (1978). But if including the alleged omission or removing the alleged
misrepresentation would not defeat a finding of probable cause, suppression is not
warranted. United States v. Kapordelis,
569 F.3d 1291, 1309 (11th Cir. 2009).
Here, the alleged omission was not material because including the omitted
fact about his felon status would not have prevented a finding of probable cause.
See
id. Based on the maintenance man’s observations, plainly there was probable
cause to search his trailer for evidence of drug activity. Nothing about Coffell’s
status as a convicted felon undermines that finding. In addition, no second search
warrant was necessary because, as we have established above, the warrantless
seizure of these objects was permitted under the plain-view doctrine.
9
Case: 16-17427 Date Filed: 12/14/2017 Page: 10 of 16
In sum, the district court properly denied Coffell’s motion to suppress.
III.
Coffell next challenges the sufficiency of the evidence to support his
conviction for possession of a silencer that was not registered or identified by a
serial number.
We generally review challenges to the sufficiency of the evidence de novo,
asking whether a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. United States v. Godwin,
765 F.3d 1306, 1319 (11th Cir. 2014).
“But where a defendant ‘present[s] his case after denial of a motion for judgment
of acquittal’ and then ‘fails to renew his motion for judgment of acquittal at the end
of all of the evidence,’ we review the defendant’s challenge to the sufficiency of
the evidence for a manifest miscarriage of justice.” United States v. House,
684
F.3d 1173, 1196 (11th Cir. 2012) (quoting United States v. Jones,
32 F.3d 1512,
1516 (11th Cir. 1994)). Under the “manifest miscarriage of justice” standard, we
must affirm unless “the evidence in a key element of the offense is so tenuous that
the conviction is shocking.”
Id. (alterations adopted). Regardless of the standard
of review, we view the evidence in the light most favorable to the government and
accept all reasonable inferences and credibility choices that support the jury’s
verdict.
Id.
10
Case: 16-17427 Date Filed: 12/14/2017 Page: 11 of 16
Here, we review Coffell’s sufficiency challenge for a manifest miscarriage
of justice. Although Coffell moved for a judgment of acquittal at the close of the
government’s case-in-chief, he chose to present a defense and then failed to renew
his motion after the close of all the evidence. See
House, 684 F.3d at 1196. In any
case, even if we treated the issue as preserved and applied de novo review,
sufficient evidence supports his conviction.
“The National Firearms Act (Act), 26 U.S.C. §§ 5801–5872, imposes strict
registration requirements on statutorily defined ‘firearms.’” Staples v. United
States,
511 U.S. 600, 602 (1994). Under the Act, the term “firearm” includes “any
silencer (as defined in section 921 of title 18, United States Code).” 26 U.S.C.
§ 5845(a)(7). A “silencer” is “any device for silencing, muffling, or diminishing
the report of a portable firearm . . . .” 18 U.S.C. § 921(a)(24).
All “firearms” covered by the Act, including “silencers,” must be registered
in the National Firearms Registration and Transfer Record maintained by the
Secretary of the Treasury. 26 U.S.C. § 5841. Also, § 5842(a) requires any maker
of a covered firearm to identify it with a serial number and other information.
Id.
§ 5842(a). Any person who possesses a firearm that lacks the information required
by § 5842(a) must “identify the firearm with a serial number assigned by the
Secretary.”
Id. § 5842(b). Section 5861 makes it a crime, punishable by up to 10
years in prison, see
id. § 5871, for any person to possess a firearm that is not
11
Case: 16-17427 Date Filed: 12/14/2017 Page: 12 of 16
properly registered,
id. § 5861(d), or that is not identified by a serial number,
id.
§ 5861(i).
To support a conviction under § 5861(d), the government must prove
beyond a reasonable doubt that (1) the defendant possessed a firearm within the
meaning of the Act; (2) the defendant knew the features of the firearm that brought
it within the scope of the Act; and (3) the firearm was not property registered to the
defendant. United States v. Ruiz,
253 F.3d 634, 638–39 (11th Cir. 2001); United
States v. Moore,
253 F.3d 607, 609–10 (11th Cir. 2001). For a conviction under
§ 5861(i), the elements are the same except that the firearm, instead of being
unregistered, must not have been identified by a serial number. See
Ruiz, 253 F.3d
at 637–38. The government need not prove that the defendant knew that the
firearm was unregistered or did not have a serial number.
Id. at 638–39.
Coffell challenges the element of knowledge only. He does not dispute, and
the evidence shows, that the silencer he possessed is a “firearm” as defined in
§ 5845(a), in that it was tested and found to reduce the sound of a firearm, and that
it both was not registered to him and did not have a serial number. See 26 U.S.C.
§ 5861(d) and (i).
To show Coffell’s knowledge, the government needed to prove that he was
“aware of the features that bring the weapon within the scope of the Act: the fact
that it is a silencer.”
Ruiz, 253 F.3d at 638. More precisely, the government
12
Case: 16-17427 Date Filed: 12/14/2017 Page: 13 of 16
needed to prove that he knew “that the object was a ‘device for silencing, muffling,
or diminishing the report of a portable firearm.’”
Moore, 253 F.3d at 611 (quoting
18 U.S.C. § 921(a)(24)).
Here, sufficient evidence supports Coffell’s conviction under § 5681.
Coffell testified that he obtained the device from a man who “more or less”
indicated that it was a silencer and who told him that it would fit a 9-millimeter
firearm of the type that he possessed. The jury also heard evidence that Coffell
had specialized knowledge of firearms. In particular, he attended gunsmith school,
had been a licensed firearms dealer, and possessed a number of firearms in his
trailer. And Coffell’s testimony indicated that he closely examined the device,
because he was aware that it was homemade and did not have a serial number. See
id. (“[K]nowledge can be inferred from circumstantial evidence, including any
external indications signaling the nature of the weapon.” (quoting
Staples, 511 U.S.
at 616 n.11)). Even assuming that he never used the device, as he claimed in his
testimony, a reasonable jury could infer from this evidence that he recognized the
device and understood it was “for silencing, muffling, or diminishing the report of
a portable firearm.” See
id.
Coffell insists that the silencer did not fit any of the firearms found in his
trailer and that the district court incorrectly believed that it did. But even if that is
13
Case: 16-17427 Date Filed: 12/14/2017 Page: 14 of 16
true, it is largely beside the point. 3 Section 5681 prohibits possession of the
silencer with knowledge that it is in fact a silencer. See
Ruiz, 253 F.3d at 638. The
silencer did not need to fit onto one of Coffell’s guns in order for him to know that
it was a device for muffling the sound of a firearm.
In that regard, Coffell’s heavy reliance on the First Circuit’s decision in
United States v. Crooker,
608 F.3d 94 (1st Cir. 2010), is misplaced. Crooker
involved a silencer designed for use with an air rifle, which the court said was not a
“firearm.”
Id. at 95. Because the evidence in that case failed to prove either that
the defendant or the maker of the airgun silencer “intended that it be used to
silence a firearm,” the question before the court was whether the defendant’s
knowledge that the airgun silencer could be adapted for use with a firearm was
sufficient to sustain his conviction.
Id. at 97–99. The court said that it was not,
holding that the statute “requires something more than a potential for adaptation
and knowledge of it.”
Id. at 97.
No such issue is presented here, however, because Coffell’s own testimony
reflects that he obtained the silencer with the understanding that it was intended to
be used to silence a firearm. Moreover, the district court specifically instructed the
jury that in order to find Coffell guilty, it was required to find that Coffell “knew
the device was designed to silence, muffle, or diminish the report of a firearm.”
3
The government asserts that the silencer did in fact fit one of his firearms but that it
was tested with a different firearm, which required the use of an adapter.
14
Case: 16-17427 Date Filed: 12/14/2017 Page: 15 of 16
Trial Tr. at 339 (emphasis added). That instruction is consistent with Crooker’s
holding. See
id. at 99 (explaining that its holding was limited to cases where the
device was not designed to be used as a silencer for a firearm). For the reasons
explained above, sufficient evidence supports the jury’s finding as to Coffell’s
knowledge.
For these reasons, sufficient evidence supports Coffell’s conviction for
possession of a silencer that was not registered and did not have a serial number.
See 26 U.S.C. §5681(d), (i).
IV.
Finally, Coffell argues that trial counsel provided ineffective assistance.
However, we generally do not address ineffective-assistance-of-counsel claims on
direct appeal. United States v. Puentes-Hurtado,
794 F.3d 1278, 1285 (11th Cir.
2015). In most cases, “there has not been an opportunity to develop and include in
the record evidence bearing on the merits of the allegations.” United States v.
Hilliard,
752 F.2d 578, 580 (11th Cir. 1985). Therefore, “in most cases a motion
brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims
of ineffective assistance.” Massaro v. United States,
538 U.S. 500, 504 (11th Cir.
2003). Nevertheless, when the record has been sufficiently developed, we may
consider a defendant’s ineffective-assistance-of-counsel claims, subject to de novo
review. United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002).
15
Case: 16-17427 Date Filed: 12/14/2017 Page: 16 of 16
Here, we decline to consider Coffell’s ineffective-assistance-of-counsel
claims on appeal. Although the district court addressed some of the issues he
raises on appeal, the record was not developed in a way that would allow us to
assess counsel’s performance or determine whether Coffell was prejudiced.
Coffell concedes as much, stating that “it is clear from the transcripts that he did
not have sufficient time, focus or legal ability to make his entire position and
factual contentions known to [the district judge] nor was he able to present
additional evidence.” Reply Br. at 11. We decline Coffell’s request to remand this
case to the district judge for an evidentiary hearing, but we note that he is free to
raise his claims of ineffective assistance and request an evidentiary hearing in the
context of a collateral proceeding under 28 U.S.C. § 2255.
V.
For the reasons stated, we conclude that the district court properly denied
Coffell’s motion to suppress and that sufficient evidence supports his conviction
for possession of an unregistered silencer. We decline to consider his claims of
ineffective assistance of counsel because the record is not sufficiently developed.
We therefore affirm Coffell’s convictions and total sentence, without prejudice to
his ability to raise his claims of ineffective assistance in a motion to vacate under
28 U.S.C. § 2255.
AFFIRMED.
16
