United States v. Winston E. Mitchell ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4008
WINSTON EUGENE MITCHELL, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-98-295)
Argued: January 25, 2000
Decided: March 27, 2000
Before WILKINSON, Chief Judge, and WILLIAMS
and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams and Judge Traxler joined.
_________________________________________________________________
COUNSEL
ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant.
Kathleen Marie Kahoe, Assistant United States Attorney, Alexandria,
Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Winston Mitchell was convicted under 18 U.S.C. § 922(g)(9),
which makes it unlawful for a person convicted of a misdemeanor
crime of domestic violence to possess a firearm. He also was con-
victed of possessing a silencer in violation of 26 U.S.C. § 5861(d). On
appeal, Mitchell challenges his convictions on a number of grounds.
Finding no merit in any of his claims, we affirm.
I.
In February 1996 appellant Winston Eugene Mitchell purchased a
.38 caliber handgun in Alexandria, Virginia. A month later, Mitchell
was arrested for assaulting his wife, Verlette Mitchell. On June 5,
1996, Mitchell was convicted of misdemeanor assault and battery.
Mitchell and his wife continued to live together after this incident.
On September 30, 1996, Congress amended the Gun Control Act
of 1968 to make it illegal for a person convicted of a misdemeanor
crime of domestic violence to possess a firearm or ammunition. The
amended provision states: "It shall be unlawful for any person who
has been convicted in any court of a misdemeanor crime of domestic
violence, to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or trans-
ported in interstate or foreign commerce." 18 U.S.C. § 922(g)(9)
(1994 & Supp. IV 1998). Congress determined that the possession of
a gun by one convicted of domestic violence put the possessor's part-
ner at undue risk. See, e.g., United States v. Lewitzke, 176 F.3d 1022,
1026-27 (7th Cir. 1999). The applicable penalty provision reads,
"Whoever knowingly violates subsection [(g)] of section 922 shall be
fined as provided in this title, imprisoned not more than 10 years or
both." 18 U.S.C. § 924(a)(2) (1994).
On July 20, 1998, nearly two years after the enactment of
§ 922(g)(9), Verlette Mitchell notified the Alexandria City Police
Department that her husband had threatened her. She also told the
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police that Mitchell possessed a handgun and a homemade silencer.
She then gave the police permission to search her home in order to
secure these items. That same day a warrant was issued for Mitchell's
arrest on stalking charges.
At approximately 10:30 that evening, Officers Henry and Fard
arrested Mitchell outside his home. Thinking Mitchell might be
armed, the officers approached him with their weapons drawn,
ordered him to the ground, and handcuffed him. They searched
Mitchell for weapons and found none. Mitchell's adult daughter,
Tecinda Mitchell, emerged from the Mitchell home to see what was
going on. While Officer Henry stayed with Mitchell, Fard walked
onto the Mitchell porch to talk with Tecinda. Shortly thereafter, Mr.
Mitchell consented to a search of his home and told Henry exactly
where to find the gun. Henry relayed this information to Fard. Fard
testified that Tecinda also consented to the search. Tecinda allowed
Fard into the home and took him up to her parents' bedroom. Here
Fard found Mitchell's .38 caliber handgun as well as 23 rounds of
ammunition. Fard also recovered a plastic bottle stuffed with carpet
padding, a device the government argues is a homemade silencer.
On August 5, 1998, a grand jury returned a three-count indictment
against Mitchell for (1) illegally possessing a firearm in violation of
§ 922(g)(9), (2) illegally possessing ammunition in violation of
§ 922(g)(9), and (3) illegally possessing a silencer in violation of 26
U.S.C. § 5861(d) (1994). Mitchell filed a number of pre-trial motions.
The district court denied both his motion to dismiss the indictment as
unconstitutional under the Ex Post Facto Clause and his motion to
suppress the items seized from the Mitchell home.
On September 29, 1998, a jury convicted Mitchell on all three
counts. He was sentenced to 48 months imprisonment. Mitchell now
appeals his convictions, and we address his claims in turn.
II.
A.
Mitchell first argues that § 924(a)(2) required the government to
prove that Mitchell knew that possessing a firearm was illegal.
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We disagree. Section 924(a)(2) provides: "Whoever knowingly
violates subsection [(g)] of section 922 shall be fined as provided in
this title, imprisoned not more than 10 years, or both." The Supreme
Court has noted that "the knowledge requisite to knowing violation of
a statute is factual knowledge as distinguished from knowledge of the
law." Bryan v. United States, 524 U.S. 184, 192 (1998) (internal quo-
tation marks omitted). The Bryan Court concluded, "unless the text of
the statute dictates a different result, the term`knowingly' merely
requires proof of knowledge of the facts that constitute the offense."
Id. at 193. Bryan found that the text of 18 U.S.C. § 924(a)(1)(B), a
sister provision of § 924(a)(2), did not dictate a different result. Id.
Section 924(a)(1)(B) provides criminal penalties for"whoever know-
ingly violates subsection (a)(4), (f), (k), (r), (v), or (w) of section
922." As this mens rea language is identical to that in § 924(a)(2), the
Bryan rule is applicable in the present context. Mitchell's reliance on
Liparota v. United States, 471 U.S. 419 (1985), is thus misplaced
because the statutory language in Liparota differs from that in Bryan
and the instant case.
The rule in Bryan has been applied without exception by this and
other circuits when interpreting § 924(a)(2)'s application to subsec-
tion (g) firearm possession crimes. See, e.g. , United States v. Bostic,
168 F.3d 718, 722-23 (4th Cir.), cert. denied , 119 S. Ct. 2383 (1999);
United States v. Beavers, 2000 WL 174861, at *2 (6th Cir. 2000);
United States v. Meade, 175 F.3d 215, 226 n.5 (1st Cir. 1999); United
States v. Wilson, 159 F.3d 280, 289 (7th Cir. 1998). Even before
Bryan, circuit courts, including this one, understood this to be the
rule. See, e.g., United States v. Langley, 62 F.3d 602, 605-06 (4th Cir.
1995) (en banc) ("[T]he only knowledge the government was required
to prove in a prosecution under [§ 924(a)(2) and § 922(g)(1)] was
knowledge of the possession . . . ."); United States v. Capps, 77 F.3d
350, 352 (10th Cir. 1996) ("[N]o circuit has extended the knowledge
component of [§ 924(a)(2) and § 922(g)(1)] beyond the act of posses-
sion itself.").
B.
Mitchell next argues that as applied to him, § 922(g)(9) violates the
Ex Post Facto Clause because both his firearm purchase and misde-
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meanor domestic violence conviction occurred prior to § 922(g)(9)'s
enactment. See U.S. Const. art. I, § 9, cl. 3.
Again we disagree. "To fall within the ex post facto prohibition, a
law must be retrospective -- that is, it must apply to events occurring
before its enactment -- and it must disadvantage the offender affected
by it by altering the definition of criminal conduct or increasing the
punishment for the crime." Lynce v. Mathis , 519 U.S. 433, 441 (1997)
(citations and internal quotation marks omitted). It is immaterial that
Mitchell's firearm purchase and domestic violence conviction
occurred prior to § 922(g)(9)'s enactment because the conduct prohib-
ited by § 922(g)(9) is the possession of a firearm. See, e.g., United
States v. Boyd, 52 F. Supp. 2d 1233, 1236-37 (D. Kan. 1999) ("This
court, as have all others deciding such a challenge, have concluded
that ... the illegal act in § 922(g)(9) is the possession of the firearm,
not the misdemeanor domestic violence conviction . .. ."); National
Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564, 1575-76
(N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett , 155 F.3d 1276 (11th
Cir. 1998). As it is undisputed that Mitchell possessed the firearm
after the enactment of § 922(g)(9), the law's application to Mitchell
does not run afoul of the ex post facto prohibition.
Courts addressing similar ex post facto challenges to § 922(g)(9)
have all agreed with this conclusion. See, e.g. , Boyd, 52 F. Supp. 2d
at 1236-37; McHugh v. Rubin, 49 F. Supp. 2d 105, 108 (E.D.N.Y.
1999); United States v. Hicks, 992 F. Supp. 1244, 1245-46 (D. Kan.
1997); United States v. Meade, 986 F. Supp. 66, 69 (D. Mass. 1997),
aff'd, 175 F.2d 215 (1st Cir. 1999); Barrett , 968 F. Supp. at 1575-76.
Analogous ex post facto challenges to other similarly worded firearm
possession crimes have also failed. See, e.g. , United States v.
D'Angelo, 819 F.2d 1062, 1065-66 (11th Cir. 1987) (Defendant "was
in possession of the pistol after the enactment of the statute. Proof of
[defendant's] possession obviated the need for proof of the date
[defendant] received the pistol."); United States v. Brady, 26 F.3d
282, 290-91 (2d Cir. 1994); United States v. Gillies, 851 F.2d 492,
495 (1st Cir. 1988).
C.
Mitchell next contends that his conviction under§ 922(g)(9) vio-
lates the Due Process Clause of the Fifth Amendment. He specifically
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argues that he did not have notice that his continued possession of the
firearm was illegal. The statute made perfectly clear, however, that
Mitchell's possession of the firearm was unlawful. Mitchell's pleas
for particularized notice thus run headlong into the fundamental prin-
ciple that "ignorance of the law is no excuse." See, e.g., Barlow v.
United States, 32 U.S. (7 Pet.) 404, 411 (1833) ("It is a common
maxim, familiar to all minds, that ignorance of the law will not excuse
any person, either civilly or criminally . . . ."); Bryan, 524 U.S. at 195
& n.21; United States v. International Minerals & Chem. Corp., 402
U.S. 558, 563-65 (1971); Shevlin-Carpenter Co. v. Minnesota, 218
U.S. 57, 68 (1910).
Mitchell counters by arguing that his prosecution under § 922(g)(9)
falls within an exception to this maxim. See Lambert v. California,
355 U.S. 225, 228 (1957). The Lambert Court addressed a city ordi-
nance that criminally penalized felons who remained in Los Angeles
more than five days without registering with the police. Id. at 226-27.
The Court held that a conviction under the registration provision vio-
lated due process when the defendant had no notice whatsoever that
remaining in the city might lead to criminal prosecution. See id. at
228-30. While the Lambert Court did hold that the Due Process
Clause requires some minimum threshold notice to defendants, Lam-
bert's reach has been exceedingly limited. In fact, the Supreme Court
stated that its application has been so circumscribed that it gives
"some credence to Justice Frankfurter's colorful prediction in dissent
[in Lambert] that the case would stand as `an isolated deviation from
the strong current of precedents -- a derelict on the waters of the
law.'" Texaco, Inc. v. Short, 454 U.S. 516, 537-38 n.33 (1982) (quot-
ing Lambert, 355 U.S. at 232 (Frankfurter, J., dissenting)).
In the instant case, Mitchell's conduct in assaulting his wife -- the
act that led to his misdemeanor domestic violence conviction -- put
Mitchell on sufficient notice. This court in United States v. Bostic
rejected an analogous due process challenge to 18 U.S.C. § 922(g)(8),
which makes it unlawful for a person subject to a domestic violence
protective order to possess a firearm. 168 F.3d 718, 722-23 (4th Cir.
1999). The court concluded, "By engaging in abusive conduct toward
[his wife and child, the defendant] removed himself from the class of
ordinary citizens" to the point where he could not "reasonably expect
to be free from regulation when possessing a firearm." Id. at 722; see
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also United States v. Reddick, 2000 WL 158970, at *2-3 (10th Cir.
2000); United States v. Baker, 197 F.3d 211, 220 (6th Cir. 1999);
Meade, 175 F.3d at 226; Wilson, 159 F.3d at 288-89. We find this rea-
soning persuasive in the present context. Accord United States v. Bea-
vers, 2000 WL 174861, at *4 (6th Cir. 2000).
III.
Mitchell further argues that the district court erred in denying his
pre-trial motion to suppress items seized from his home. We hold,
however, that the district court did not err by finding that Mitchell,
his wife Verlette, and his adult daughter Tecinda all independently
consented to the search.
It is undisputed that Mitchell consented to the search shortly after
his arrest. Mitchell, however, argues his consent was invalid because
it was the product of police duress and coercion. Whether Mitchell
voluntarily consented is a question of fact which will be reversed only
if after examining the totality of the circumstances, we conclude that
the district court's finding was clearly erroneous. See, e.g., Schnec-
kloth v. Bustamonte, 412 U.S. 218, 227 (1973). Even accepting
Mitchell's allegations as true that the officers failed to notify him of
his Miranda rights and his right to refuse consent for the search, we
cannot conclude that the district court clearly erred by finding his
consent to be voluntary. Mitchell was fifty years old and because of
past arrests was not "a newcomer to the law." United States v. Wat-
son, 423 U.S. 411, 424-25 (1976). In addition, Mitchell consented
only a few minutes after being arrested, and he told the police exactly
where they could find the gun. Although Mitchell was arrested at gun-
point, the officers holstered their weapons as soon as Mitchell was
handcuffed. And after Mitchell was secured there is no evidence that
the police threatened Mitchell or used any violence against him. See
id. at 424.
Verlette Mitchell also consented to the search earlier that day. And
as she had "common authority" over the Mitchell home, her consent
was valid. See, e.g., United States v. Matlock, 415 U.S. 164, 171 &
n.7 (1974). Verlette Mitchell's name was on the lease, she had keys
to the house, and her clothing and belongings were in the house.
Tecinda Mitchell also validly consented because it was reasonable
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under the circumstances for the police to conclude that she had "com-
mon authority" over the house. See, e.g., Illinois v. Rodriguez, 497
U.S. 177, 188-89 (1990). She was at the Mitchell home the night of
the search, and she allowed the officer to enter the home and took him
upstairs to her parents' room. Throughout, she never gave any indica-
tion that she did not live at the Mitchell home.
IV.
Mitchell finally contends that there was insufficient evidence pro-
duced at trial for the jury to conclude that he violated 26 U.S.C.
§ 5861(d). Section 5861(d) makes it unlawful to possess an unregis-
tered firearm -- in this case a silencer as defined in 18 U.S.C.
§ 921(a)(24) (1994). When assessing the sufficiency of the evidence
of a criminal conviction on direct review, "[t]he verdict of [the] jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). Reviewing the evidence in this man-
ner, we must decide whether it supports the finding that Mitchell
knew that the device entered into evidence by the government -- the
plastic bottle stuffed with carpet padding -- had the characteristics of
a silencer.
The government's evidence passes this threshold. Mitchell's wife
testified that Mitchell kept the device in the same bin where he kept
his gun and ammunition. She also recounted seeing Mitchell put the
device in his fanny pack along with his gun. The government's fire-
arms expert testified that the device reduced gunshot noise by half.
The expert also pointed out the "irregular cut in the bottom of the bot-
tle, . . . an A-type cut . . . with a circular portion on the bottom." The
expert explained that the barrel and sight of Mitchell's gun could be
inserted into this cut. He concluded that in his expert opinion the
device was a rudimentary, improvised firearm silencer. The testimony
of these witnesses provides substantial evidence that Mitchell knew
that the device had the characteristics of a silencer.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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