United States v. Semmie Theodore Baggin , 354 F. App'x 396 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 23, 2009
No. 09-11502 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00090-CR-3-MHT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEMMIE THEODORE BAGGIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 23, 2009)
Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Semmie Theodore Baggin appeals his conviction for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g). Baggin challenges this
conviction on three grounds: (1) The district court should have suppressed his
statements to police after an investigatory traffic stop because he was stopped
unconstitutionally; (2) The district court erred in admitting into evidence rebuttal
testimony about police surveillance of Baggin; (3) The evidence was insufficient to
establish that Baggin knowingly possessed a firearm. We affirm Baggin’s
conviction.
I. Background
On March 22, 2007, police stopped Baggin as he was on his way to sell
crack cocaine to a confidential informant (“CI”). After his arrest for possession of
crack cocaine, Baggin made statements to police about a firearm in a trailer home
at Lot 17, 348 Chestnut Street (“Lot 17”). Baggin later was indicted for possession
of a firearm by a convicted felon. Baggin moved to suppress the statements he
made to police regarding the firearm, arguing that he had been stopped without
reasonable suspicion.
Baggin and Officer James Bailey testified at the suppression hearing before
a magistrate judge. Bailey testified that the CI had no criminal record, had
provided reliable information before, and was not paid for the information. Bailey
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also stated that he had known Baggin for ten years and recognized Baggin’s voice
on the phone while the CI was arranging the deal with Baggin. Bailey then
testified that he and other law enforcement officers stopped Baggin while he was
on the way to the drug deal and that, after his arrest, Baggin admitted having a
firearm in his trailer at Lot 17 and described exactly where it was later found.
Baggin testified that his wife lived in the trailer at Lot 17 and that he no
longer lived there at the time of arrest. He stated that he lived with his step-
daughter, who owned the firearm and stored it in the trailer home at Lot 17 because
he was not allowed to be around firearms.
The magistrate judge recommended denying Baggin’s motion to suppress,
finding Bailey’s testimony about the use of the CI and surveillance prior to the
investigatory stop to be undisputed and enough to establish reasonable suspicion.
Baggin did not object to the recommendation, and the district court adopted it,
denying Baggin’s motion to suppress.
At trial, Officer Derrick Farr testified that, during questioning after the
arrest, Baggin stated that he lived at Lot 17 and admitted that he had a firearm
stored there. He testified that Baggin then called his wife and told her to allow the
police to recover the firearm. Farr testified that he later found the firearm exactly
where Baggin described.
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The defense offered the testimony of Baggin’s wife and Baggin’s step-
daughter. Baggin’s wife testified that Baggin no longer lived at the trailer on Lot
17, that none of Baggin’s clothes were there, and that he did not have a key.
Baggin’s step-daughter testified that she bought the firearm from the pawn shop
and stored it at her mother’s house so that Baggin would not be near it. She
offered the pawn shop receipt with her signature into evidence as proof of
ownership.
In rebuttal, the prosecution sought to introduce testimony based on
surveillance evidence from the drug sting. Baggin objected, arguing that this
evidence had no probative value and was unduly prejudicial. The district court
denied this objection, and the prosecution offered the testimony of Officers David
Cofield and Farr. Cofield testified that he heard Baggin, while planning the drug
sale with the CI on the phone, say, “I have to go run by the house and I’ll be on my
way to the church.” Farr testified that, soon after this call, he observed Baggin
enter the trailer at Lot 17 and leave a minute later. Farr did not see anyone let
Baggin into the trailer, but he could not say whether anyone else was inside.
The government rested and the jury convicted Baggin. This appeal
followed.
II. Discussion
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On appeal, Baggin argues that the district court erred by denying his motion
to suppress statements he made after the investigatory traffic stop. Because Baggin
did not object to the magistrate judge’s recommendation within the prescribed time
and the district court later adopted this recommendation, we review the district
court’s factual findings for plain error. United States v. Warren, 687 F.2d 347, 348
(11th Cir. 1983); see also 28 U.S.C. § 636. An error is “plain” if “it is obvious and
clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir.
2006). We review the district court’s application of law to the facts, however, de
novo. Warren, 687 F.2d at 348.
Baggin argues that the investigatory traffic stop violated the Fourth
Amendment because there was no “reasonable suspicion” to justify the stop under
Terry v. Ohio, 392 U.S. 1 (1968). He contends that the tip from the confidential
informant did not exhibit “sufficient indicia of reliability to provide reasonable
suspicion to make the investigatory stop.” Alabama v. White, 496 U.S. 325, 326-
27 (1990). In support, he argues that the only information available to officers in
this case was “that someone would be driving down Louina Road to deliver
cocaine.”
This argument is not persuasive. By adopting the magistrate judge’s
recommendation, the district court found Bailey’s description of the CI and police
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surveillance to be undisputed. Because Baggin presented no evidence
contradicting Bailey’s testimony, we see no plain error and we accept these
findings in full. Given these facts, there was sufficient evidence to establish
reasonable suspicion. First, the CI had worked reliably with the officers and
previously provided accurate information. Second, there was significant evidence
corroborating the tip. Officer Bailey was present for the phone call between the CI
and Baggin to set up a controlled buy and recognized Baggin’s voice.
Furthermore, Baggin was stopped while driving toward the location of the drug
deal. Thus, the district court did not err in denying Baggin’s motion to suppress.
Next, Baggin argues that the district court violated Federal Rule of Evidence
403 by admitting rebuttal testimony about police surveillance of Baggin into
evidence. He contends that the rebuttal evidence was not probative of any of the
main issues in the case and was unduly prejudicial because it constituted evidence
of Baggin’s prior crimes.
We review the district court’s admission of evidence under Rule 403 for an
abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir.
2003). In applying this standard, we view the evidence in the light most favorable
to admission, maximizing its probative value and minimizing its undue prejudicial
impact. Id. at 1284.
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Under this deferential standard, the district court did not abuse its discretion.
The rebuttal testimony was probative of Baggin’s access to the trailer at Lot 17,
which in turn was relevant to one of the most important issues in the case: whether
Baggin had possession of the firearm. Moreover, the testimony was not unduly
prejudicial. Farr testified that Baggin was under arrest on unrelated charges when
he told police the firearm was in the trailer. Furthermore, during rebuttal
testimony, the district court instructed the witnesses not to refer to the drug
investigation. Therefore, we conclude that the district court did not abuse its
discretion by admitting the testimony.
Finally, Baggin argues that the evidence at trial was not sufficient to support
his conviction. We review de novo the sufficiency of evidence to support a
conviction. United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We
apply a deferential standard, however, and will affirm a conviction if “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999)
(quotation marks omitted). In making this determination, we review the evidence
in the light most favorable to the government and accept all reasonable inferences
in favor of the jury’s verdict. United States v. Chirinos, 112 F.3d 1089, 1095 (11th
Cir. 1997).
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Because it is undisputed that Baggin did not have actual possession of the
firearm, the critical question is whether he had constructive possession. A
defendant has constructive possession of contraband when he owns or exercises
dominion and control over the premises in which the contraband is concealed.
United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006).
Here, the evidence was sufficient for the jury to conclude that Baggin
exercised dominion over the trailer home at Lot 17 and, therefore, had constructive
possession of the firearm. Farr testified that Baggin identified his home address as
Lot 17, that Baggin knew where the firearm was concealed in that trailer, and
signed a consent form authorizing Farr to retrieve the firearm. Police then found
the firearm exactly where Baggin had said it would be. Moreover, Farr testified
that he saw Baggin enter the trailer at Lot 17 with apparent ease. This evidence
was sufficient for the jury to conclude that Baggin had constructive possession of
the firearm.
We, therefore, affirm the conviction.
AFFIRMED.
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