United States v. Smith ( 2020 )

19-621
United States v. Smith
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
26th day of May, two thousand twenty.
Present:
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 19-621
ANTHONY SMITH,
Defendant-Appellant.
_____________________________________
For Appellee: Owen C.J. Foster and Gregory L. Waples, Assistant
United States Attorneys, for Christina E. Nolan, United
States Attorney for the District of Vermont, Burlington,
VT
For Defendant-Appellant: Andrew Levchuk, Amherst, MA
Appeal from a judgment of the United States District Court for the District of Vermont
(Reiss, J.).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Anthony Smith appeals from a judgment and sentence entered on March 12, 2019. Smith
was indicted for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g). Before trial, Smith moved to suppress the ammunition, which was found in a duffel
bag near the rear passenger seat of the car in which he was traveling, and the firearm, which was
found under the driver’s seat. He also sought to suppress a statement he made indicating that the
gun was not loaded. The district court denied these motions. Smith proceeded to trial, where a
jury convicted him of both charges. After Smith was sentenced, the Supreme Court decided
Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that the government must prove that a
defendant knew he was a felon in order to secure a conviction under § 922(g). Smith argues that
the indictment and the jury instructions were defective because they failed to articulate that
requirement. He also challenges the district court’s ruling on his suppression motions. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
I. Rehaif Claims
The Supreme Court held in Rehaif that, “in a prosecution under 18 U.S.C. § 922(g) . . . ,
the government must prove both that the defendant knew he possessed a firearm and that he knew
he belonged to the relevant category of persons barred from possessing a firearm.” 139 S. Ct. at
2200. Neither the indictment charging Smith nor the jury instructions at his trial articulated the
knowledge requirement identified by the Court in Rehaif. Because Smith did not challenge this
failure below, we review his claim “for plain error, considering whether (1) there is an error; (2)
the error is clear or obvious . . . ; (3) the error affected the appellant’s substantial rights; and (4)
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the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” See
United States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020) (quotation marks omitted).
As to Smith’s claim that the indictment was jurisdictionally defective because it did not
allege an element of the offense, we rejected this claim in United States v. Balde, 943 F.3d 73 (2d
Cir. 2019). Indeed, Smith appears to have abandoned this claim in his reply brief. We held in
Balde that an indictment that tracks the language of the statute is sufficient to confer jurisdiction.
See id. at 89–90. The indictment here mirrors the words of the relevant statute. Thus, “the
indictment’s failure to allege that [Smith] knew that he was [a felon] was not a jurisdictional
defect.” Id. at 92.
Smith’s claim of instructional error is similarly foreclosed by our recent decision in Miller,
954 F.3d 551. In Miller, we rejected the argument that the district court plainly erred by failing
to instruct that § 922(g) requires the government to prove knowledge of felon status. Id. at 557–
60. We concluded that the defendant’s challenge failed at the fourth prong of our plain-error
analysis, which allowed us to look beyond the trial record at the defendant’s presentence
investigation report (“PSR”). Id. at 559–60. Relying on the PSR, we reasoned that, because the
defendant had been sentenced to and served more than one year in prison for a prior felony
conviction, he necessarily knew of his felon status and “would have stipulated to knowledge of his
felon status to prevent the jury from hearing evidence of his actual sentence.” Id. at 560. The
same is true here: Smith has multiple prior felony convictions, was sentenced to over one year
in prison for two of those crimes, and served nearly seven years in prison for one prior conviction.
Smith, like Miller, stipulated to the existence of a prior felony in order to prevent its details from
being placed before the jury. See Miller, 954 F.3d at 558–59 & n.18. While neither stipulation
specifically addressed the defendant’s knowledge of his felon status, “we have no doubt that, had
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the Rehaif issue been foreseen by the district court, [Smith] would have stipulated to knowledge
of his felon status.” Id. at 560. Thus, the erroneous instruction does not warrant vacatur of
Smith’s conviction.
II. Motions to Suppress
“We review a district court’s decision on a suppression motion de novo on questions of law
and for clear error in factual determinations.” United States v. Gonzalez, 764 F.3d 159, 165 (2d
Cir. 2014).
A. Fourth Amendment
Smith argues that the district court erred in denying his motion to suppress the firearm and
ammunition found in the Chevrolet Trailblazer in which he was traveling. We disagree. The
district court found that, when Vermont State Police Corporal George Rodriguez first approached
the vehicle, “he observed the driver, a child in the backseat, and [Smith] in the reclined passenger
seat.” App’x 125. Rodriguez
asked [the driver] if Smith had any bags in the car and she responded he had one in
the trunk. He requested her consent to search the vehicle . . . [and she] signed a
written consent form allowing Corporal Rodriguez to search her vehicle. It stated:
“I freely give my permission to CPL Rodriguez . . . to conduct a complete search
of [the Trailblazer] and its contents here under my control.”
App’x 125. Rodriguez proceeded to search the car. “In the backseat, next to where the child
had been seated, he saw an open and unzipped red and black canvas bag with no tags or
identification with a Ziploc bag full of .22 bullets on top. . . . The bag contained large male
clothing.” App’x 125–26.
Smith primarily argues that, while the driver of the vehicle consented to the search, Smith
did not, so the search of his bag was unlawful. This argument is unavailing. The Fourth
Amendment’s touchstone is reasonableness and the Supreme Court has “long approved consensual
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searches because it is no doubt reasonable for the police to conduct a search once they have been
permitted to do so.” See Florida v. Jimeno, 500 U.S. 248, 250–51 (1991); Illinois v. Rodriguez,
497 U.S. 177, 183–84 (1990). “The standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the suspect?”
Jimeno, 500 U.S. at 251. Officers may reasonably conduct a search even if the consenting party
lacks actual authority to consent so long as “the facts available to the officer . . . warrant a man of
reasonable caution in the belief that the consenting party had authority.” Rodriguez, 497 U.S. at
188 (quotation marks and alterations omitted).
Here, Rodriguez reasonably believed that the driver had authorized him to search the entire
car, including the duffel bag, because the written consent stated that Rodriguez could search the
car and its contents. See Jimeno, 500 U.S. at 251(“[I]t [is] objectively reasonable for the police
to conclude that [a] general consent to search [a] car include[s] consent to search containers within
that car.”); see also United States v. Sparks, 287 F. App’x 918, 920–21 (2d Cir. 2008) (“[T]he
officer requested—and [the suspect] provided—consent to search ‘the vehicle and the contents
therein.’ Given the broad scope of that consent, it was objectively reasonable for the officer to
believe that it covered the bags inside the car.”); United States v. Snow, 44 F.3d 133, 135 (2d Cir.
1995) (“[A]n individual who consents to a search of his car should reasonably expect that readily-
opened, closed containers discovered inside the car will be opened and examined.”). Smith
insists that, because the bag contained men’s clothing, it clearly belonged to a man and not to the
female driver. Thus, it was unreasonable for Rodriguez to believe that the bag fell within the
scope of the driver’s consent and he should have asked Smith before rummaging through the bag.
Not so. Police officers need not canvass potential objectors before conducting a lawful search
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based on the voluntary consent of an individual with apparent authority, like the driver here. See
United States v. Lopez, 547 F.3d 397, 399–400 (2d Cir. 2008). Moreover, the driver stated that
Smith had a single bag in the trunk. Based on that information, Rodriguez reasonably believed
that the bag on the back seat did not belong to Smith. Indeed, Smith’s argument presumes that
Rodriguez found the bullets after seeing that the duffel bag contained men’s clothing. But the
district court found that the bullets were in a Ziploc bag on top of the clothing. Thus, Rodriguez
found the bullets before he had any reason to believe that the bag did not belong to the driver.
Finally, the gun was found beneath the driver’s seat, not in the bag, and the driver’s consent plainly
extended to that area.
Rodriguez reasonably searched Smith’s bag pursuant to the driver’s consent.
Accordingly, the district court properly denied Smith’s motion to suppress the firearm and
ammunition found in the Trailblazer.
B. Fifth Amendment
Smith next argues that his statement to Rodriguez that “the gun wasn’t loaded,” App’x 82,
should have been suppressed. We disagree. Before transporting Smith to a detention facility
upon his arrest, Rodriguez read Smith his Miranda rights and Smith chose to remain silent. See
generally Miranda v. Arizona, 384 U.S. 436 (1966). Nevertheless, during the drive, Smith asked
Rodriguez “what was going on” and Rodriguez informed him “that the ATF [the federal Bureau
of Alcohol, Tobacco, and Firearms] was adopting the case” and that “they’re always willing to
work out a plea deal.” App’x 82. Smith responded, “[A]t least it’s not a violent felony . . .
because the gun wasn’t loaded.” App’x 82. Rodriguez had not informed Smith that the gun he
recovered from the vehicle was unloaded.
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“[T]he Miranda safeguards come into play whenever a person in custody is subjected to
either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291,
300–01 (1980). Thus, Miranda rights attach when a police officer uses “words or actions . . . that
they should have known were reasonably likely to elicit an incriminating response.” Id. at 302
(emphasis omitted). Where, as here, a person invokes the right to remain silent, Miranda
guarantees that a person’s “right to cut off questioning” will be “scrupulously honored.” Michigan
v. Mosley, 423 U.S. 96, 104 (1975) (quoting Miranda, 384 U.S. at 474, 479); see also, e.g.,
Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda
warning was given and that it was understood by the accused, an accused’s uncoerced statement
establishes an implied waiver of the right to remain silent.”).
“This is not a case . . . where the police failed to honor a decision of a person in custody to
cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting
in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423
U.S. at 105–06. Rather, Rodriguez refrained from engaging with Smith after Smith invoked his
right to silence until Smith asked “what was going on.” App’x 82. Rodriguez’s response,
offering an explanation and prediction of what would happen next, did not represent an
impermissible failure to honor Smith’s invocation of his right to silence. See Gonzalez, 764 F.3d
at 167. Accordingly, the district court correctly denied Smith’s motion to suppress his statement
that the gun was not loaded.
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* * *
We have considered Smith’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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