United States v. Shorter ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4942
EARL SHORTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-00-390)
Argued: January 21, 2003
Decided: May 12, 2003
Before WILKINS, Chief Judge, and MICHAEL and
TRAXLER, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the major-
ity opinion, in which Judge Traxler joined. Judge Michael wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Joseph Ryland Winston, Glen Allen, Virginia, for Appel-
lant. Peter Sinclair Duffey, Assistant United States Attorney, Rich-
mond, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
States Attorney, Richmond, Virginia, for Appellee.
2 UNITED STATES v. SHORTER
OPINION
WILKINS, Chief Judge:
Earl Shorter appeals his convictions on drug and weapons charges,
arguing that the district court erred in denying his motion to suppress,
that the evidence is insufficient to support his convictions, and that
the judgment contains duplicative convictions. Finding no error, we
affirm.
I.
During the evening of October 13, 2000, law enforcement officers
in Richmond, Virginia stopped a vehicle driven by Wayne Stroud for
a traffic violation; Shorter was a passenger in the vehicle. During the
traffic stop, Stroud produced a small quantity of marijuana and
informed Sergeant Stephen Drew that he had obtained the marijuana
from Shorter. Stroud further told Drew that he had purchased mari-
juana from Shorter many times, including the previous day, at
Shorter’s apartment at 207 Leigh Street, Apartment A, in Richmond,
Virginia. Stroud added that he had visited Shorter’s apartment earlier
that evening to purchase additional marijuana, but that Shorter had
informed him that he did not have any. Stroud further related that the
two left together for the purpose of finding a source from which to
purchase some. Stroud also explained that Shorter had purchased mar-
ijuana and resold it to Stroud just prior to the traffic stop. Addition-
ally, Stroud related to Drew that he—Stroud—had more marijuana in
his apartment.
Later that evening, Drew sought a search warrant for Shorter’s resi-
dence based on the information provided by Stroud and other infor-
mation known to the officers as a result of previous encounters with
Shorter. The warrant application sought permission to search for mar-
ijuana, "any paraphernalia used in the preparation, packaging and dis-
tribution of marijuana," and any fruits or instrumentalities of the
offense of marijuana distribution. J.A. 113. The affidavit supporting
the warrant application included the following statement concerning
probable cause:
UNITED STATES v. SHORTER 3
On 10-13-2000 this affiant spoke with a confidential infor-
mant [Stroud] who stated that with in [sic] the past 72 hours
they had been to [Shorter’s apartment] and bought mari-
juana that was packaged for street distribution. The CI stated
that they had purchased the marijuana from [Shorter]. The
CI states that they have used marijuana in the past and is
[sic] familiar with this drug in its appearance and it’s [sic]
method of packaging. The CI stated that they have been to
this address in the past and have purchased marijuana as
well as observing this same suspect have marijuana in his
possession.
Id. at 114. The affidavit did not mention Stroud’s statement to Drew
that Shorter had no marijuana on the evening of October 13. A magis-
trate judge approved the affidavit, and Shorter’s apartment was
searched. Numerous items were seized, including a .25 caliber pistol,
a 12-gauge shotgun, two shotgun shells, marijuana residue and para-
phernalia, and a Texaco bill addressed to Shorter at the apartment.
Following a bench trial, Shorter was found guilty of one count of
possessing marijuana, see 21 U.S.C.A. § 844 (West 1999) (Count
Four), and two counts of possessing a firearm as a convicted felon
and unlawful user of controlled substances, see 18 U.S.C.A.
§ 922(g)(1), (3) (West 2000) (Counts Eight and Nine). The district
court merged the latter two counts for sentencing purposes, imposing
a single sentence of 84 months and a single special assessment of $100.1
II.
Prior to trial, Shorter moved to suppress the evidence seized during
the search of his home, arguing that Sergeant Drew had willfully
omitted a material fact—that Stroud had told Drew that Shorter did
not have any marijuana in his apartment on the night of October 13—
from his affidavit, in violation of Franks v. Delaware, 438 U.S. 154(1978). The district court denied the motion to suppress, concluding
that the omitted material should have been included in the affidavit
1
The court also imposed a concurrent sentence and a separate $100
special assessment for the marijuana possession conviction.
4 UNITED STATES v. SHORTER
but that it was not critical to a finding of probable cause. Shorter chal-
lenges this ruling.
Under the Fourth Amendment, searches and seizures conducted
inside a home, without a warrant, are presumptively unreasonable.
See Payton v. New York, 445 U.S. 573, 586 (1980). And, the Warrant
Clause of the Fourth Amendment provides that "no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation."
U.S. Const. amend. IV. In Franks, the Supreme Court held that affi-
davits supporting search warrants are presumed to be valid and that
a criminal defendant may make a post hoc challenge to a facially suf-
ficient affidavit only in very limited circumstances. See Franks, 438
U.S. at 171-72. Although Franks addressed a situation in which state-
ments included in an affidavit were alleged to be false, we have
extended the Franks holding to the omission of material facts from an
affidavit. See United States v. Colkley, 899 F.2d 297, 300 (4th Cir.
1990).
A defendant may obtain a hearing concerning the validity of an
affidavit supporting a search warrant by making "a substantial prelim-
inary showing," Franks, 438 U.S. at 155, that the affiant omitted
material facts "with the intent to make, or in reckless disregard of
whether [he] thereby made, the affidavit misleading." Colkley, 899
F.2d at 300 (internal quotation marks omitted). This showing requires
"a detailed offer of proof," id., and "[a]llegations of negligence or
innocent mistake are insufficient," Franks, 438 U.S. at 171. The
defendant must also show that the omitted material was "‘necessary
to the finding of probable cause,’" i.e., that the omitted material was
such "that its inclusion in the affidavit would defeat probable cause,"
Colkley, 899 F.2d at 301 (quoting Franks, 438 U.S. at 156). Upon
making this two-part preliminary showing, a defendant is entitled to
a hearing, at which he bears the burden of proving the allegations by
a preponderance of the evidence. See Franks, 438 U.S. at 156.
Here, the district court conducted a Franks hearing without requir-
ing Shorter to make a preliminary showing, but denied relief on the
merits. We affirm this ruling. First, Shorter failed to present any evi-
dence, beyond the mere fact of the omission itself, that Sergeant
Drew’s failure to include the omitted material in the affidavit was
either intentional or the product of a reckless disregard for the effect
UNITED STATES v. SHORTER 5
of the omission on the validity of the affidavit. And, the fact of an
omission, standing alone, is not sufficient to demonstrate intent or
reckless disregard. See Colkley, 899 F.2d at 301.2 Second, inclusion
in the affidavit of the omitted fact—that Shorter had stated that he did
not have any marijuana on the evening of October 13—would not
have negated probable cause. Even if, as Shorter contends, there
could be no probable cause to believe that marijuana would be found
in his apartment in light of the omitted fact, the affidavit would still
provide ample probable cause to support the issuance of a search war-
rant for paraphernalia used in marijuana distribution and other indicia
of marijuana trafficking.
III.
Shorter next contends that the evidence was insufficient to support
his convictions. The search of the apartment revealed a .25 caliber
pistol in a bedside table and a shotgun in a box in the kitchen pantry.
Marijuana seeds and residue were found in the living room. Shorter
nevertheless contends that this evidence is insufficient to support his
convictions because it does not "connect [him] to the apartment in any
significant way," does not establish his knowledge of the presence of
the firearms in the apartment, and does not demonstrate that he was
ever present in the apartment while the weapons and marijuana were
present. Opening Br. of Appellant at 19. We disagree.
In reviewing a sufficiency challenge, our role is limited to consid-
ering whether "there is substantial evidence, taking the view most
favorable to the Government, to support" the verdict. Glasser v.
United States, 315 U.S. 60, 80 (1942). We must bear in mind that
"[t]he [fact finder], not the reviewing court, weighs the credibility of
the evidence and resolves any conflicts in the evidence presented,"
and that "if the evidence supports different, reasonable interpretations,
the [fact finder] decides which interpretation to believe." United
2
In Colkley, we left open the question of whether intent could be
inferred from the omission of material that was "clearly critical" to the
probable cause determination. Id. (internal quotation marks omitted). We
need not decide that question here because, for the reasons discussed in
the text, the omitted material was not critical to the probable cause deter-
mination, much less "clearly" so.
6 UNITED STATES v. SHORTER
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Reversal for
insufficient evidence is reserved for cases in which "the prosecution’s
failure is clear." Burks v. United States, 437 U.S. 1, 17 (1978).
As for the evidence tying Shorter to the apartment, various docu-
ments bearing the names of Shorter and his wife, including the Tex-
aco bill addressed to Shorter at the apartment, were found in a
bedroom. No documents were found bearing any name other than
those of Shorter and his wife. This evidence was sufficient to link
Shorter to the residence. Cf. United States v. Surratt, 172 F.3d 559,
564 (8th Cir. 1999) (concluding that evidence, including photographs
and rent receipts addressed to defendant, established his residency in
apartment).3
We further conclude that the evidence was sufficient for a reason-
able fact finder to conclude that Shorter had constructive possession
of the firearms and marijuana. A defendant may have constructive
possession of contraband even if it is not in his immediate possession
or control. See United States v. Kitchen, 57 F.3d 516, 520 (7th Cir.
1995). In order to obtain a conviction on a theory of constructive pos-
session, the Government must demonstrate through direct or circum-
stantial evidence "that the defendant exercised, or had the power to
exercise, dominion and control over the item." United States v. Jack-
son, 124 F.3d 607, 610 (4th Cir. 1997) (internal quotation marks
omitted). The Government made such a showing here. To begin with,
the fact that the firearms and marijuana were found in Shorter’s home
permits an inference of constructive possession. See United States v.
Morris, 977 F.2d 617, 620 (D.C. Cir. 1992). In the case of the mari-
juana, this inference is bolstered by the fact that the marijuana was
found in the living room, in plain view, and other marijuana parapher-
nalia was found in the apartment. See United States v. Fields, 72 F.3d
1200, 1212 (5th Cir. 1996). And, despite Shorter’s contention to the
contrary, the fact that the weapons were not in plain view does not
preclude a finding of constructive possession. The apartment was not
3
Additionally, Shorter’s wife informed two of the searching officers
that she and Shorter lived in the apartment. This information, which is
arguably inadmissible hearsay, see Fed. R. Evid. 801(c), 802, was elic-
ited by Shorter without objection on cross-examination of the two offi-
cers.
UNITED STATES v. SHORTER 7
so large, and the weapons were not so well hidden, as to prohibit a
reasonable fact finder from concluding that Shorter was aware of their
presence. Cf. Kitchen, 57 F.3d at 519-21 (affirming conviction for
constructive possession of firearm found in dresser drawer when evi-
dence indicated that defendant had access to bedroom where dresser
was located). This is particularly so in view of the fact that ammuni-
tion for one of the firearms was found in plain view in the apartment,
and a holster was found in the closet of the bedroom where Shorter’s
personal papers were located. Cf. Surratt, 172 F.3d at 564 (holding
that evidence supported finding of constructive possession of con-
cealed narcotics in part because narcotics paraphernalia was found in
residence).
IV.
Finally, Shorter argues that the district court erred in merging
Counts Eight and Nine—the two firearms charges—for sentencing
purposes rather than acquitting him of one of the two counts. Because
Shorter did not object to the treatment of Counts Eight and Nine by
the district court, our review is for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). In order
to establish our authority to notice an error not preserved by a timely
objection, Shorter must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. See Olano, 507
U.S. at 732. Even if Shorter can satisfy these requirements, correction
of the error remains within our discretion, which we "should not exer-
cise ... unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’" Id. (second alteration in
original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
Here, Shorter has failed to show even that the district court erred.
The indictment against Shorter charged Counts Eight and Nine in a
single paragraph, which alleged that Shorter possessed a .25 caliber
pistol and a 12-gauge shotgun "having previously been convicted of
a crime punishable by imprisonment for a term exceeding one year,
and being an unlawful user of controlled substances." J.A. 128; see
18 U.S.C.A. § 922(g)(1) (prohibiting possession of firearm by con-
victed felon); id. § 922(g)(3) (prohibiting possession of firearm by
unlawful user of controlled substances). Both of the firearms were
found during the search of Shorter’s apartment on October 13; thus,
8 UNITED STATES v. SHORTER
his possession of them was simultaneous. The district court found him
guilty of both counts, but recognized that the two counts alleged only
a single offense. See United States v. Dunford, 148 F.3d 385, 388-90
(4th Cir. 1998) (holding that a defendant may not be convicted of
multiple offenses under § 922(g) on the basis that he belonged to
more than one prohibited class or that he simultaneously possessed
more than one firearm). Specifically, although the judgment states
that Shorter was "found" guilty of Counts Eight and Nine, it further
states that he was "adjudged" guilty of Counts "Eight and Nine
(merged for sentencing purposes)." J.A. 329. And, the judgment
makes clear that no sentence or special assessment was imposed for
Count Eight. Thus, we hold that Shorter stands convicted of only one
18 U.S.C.A. § 922(g) offense.
This result is in line with our decision in United States v. Jones,
204 F.3d 541 (4th Cir. 2000). In Jones, the defendant had received
concurrent sentences for possession of cocaine base and possession of
cocaine base with the intent to distribute. Concluding that the posses-
sion offense was a lesser included offense of the possession with the
intent to distribute charge, we held that the former "should have been
merged into the possession with intent to distribute conviction" and
therefore ordered that the sentence for the possession conviction be
vacated. Jones, 204 F.3d at 544; see United States v. Cunningham,
145 F.3d 1385, 1399 (D.C. Cir. 1998) (holding that duplicative
§ 922(g) convictions "should have been merged for sentencing pur-
poses"); United States v. Throneburg, 921 F.2d 654, 657 (6th Cir.
1990) (recognizing that the district court "could merge [duplicative]
convictions after the jury verdicts are recorded").
We note that the result here is not inconsistent with Ball v. United
States, 470 U.S. 856 (1985), on which Shorter relies. In Ball, the
Supreme Court held that it was improper to impose concurrent sen-
tences on duplicative convictions because "[t]he separate conviction,
apart from the concurrent sentence, has potential adverse collateral
consequences that may not be ignored." Ball, 470 U.S. at 865. The
Court therefore remanded to the district court to vacate one of the
duplicative convictions. See id. Unlike in Ball, here there is no dupli-
cative conviction to be vacated because the district court merged the
duplicative counts into a single conviction. And, any possible
ambiguity in the judgment, which states that the § 922(g) counts were
UNITED STATES v. SHORTER 9
"merged for sentencing purposes," J.A. 329, is avoided by the fact
that the judgment reflects the imposition of only a single special
assessment for a § 922(g) offense. See 18 U.S.C.A. § 3013 (West
2000); Rutledge v. United States, 517 U.S. 292, 301 (1996) (explain-
ing that § 3013 requires the imposition of a special assessment for
each conviction). We therefore find no error by the district court in
the treatment of Counts Eight and Nine.
V.
For the reasons set forth above, we affirm.
AFFIRMED
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I concur in parts I through III of the majority opinion. However,
because the district court committed plain error when it did not vacate
one of Earl Shorter’s duplicative convictions for possessing a firearm
as a convicted felon and an unlawful user of controlled substances,
see 18 U.S.C. § 922(g)(1), (3), I respectfully dissent from part IV.
Shorter is guilty of only one § 922(g) offense, yet two convictions for
this offense are recorded on his judgment. If we cannot exercise our
discretion to correct this error, we are failing.
Section 922(g) makes it unlawful for a person in one of nine spe-
cific classes (for example, convicted felons, fugitives, and illegal drug
users) to possess any firearm. A person who is a member of more than
one disqualifying class only violates § 922(g) once for each act of
possession. United States v. Dunford, 148 F.3d 385, 389 (4th Cir.
1998). Moreover, the simultaneous possession of multiple firearms in
the same location constitutes only one violation of § 922(g). Id. at
390. When a person receives two convictions for conduct that war-
rants just one conviction under the applicable statute, "the only rem-
edy consistent with the congressional intent is for the District Court
. . . to exercise its discretion to vacate one of the underlying convic-
tions." Ball v. United States, 470 U.S. 856, 864 (1985). See also
United States v. Murphy, ___ F.3d ___, 2003 WL 1879128 (4th Cir.
April 16, 2003) (vacating multiplicative contempt convictions);
10 UNITED STATES v. SHORTER
United States v. Bennafield, 287 F.3d 320, 324 (4th Cir. 2002) (same
for convictions for possession of a controlled substance); Dunford,
148 F.3d at 390 (firearms possession); United States v. Mason, 611
F.2d 49, 53 (4th Cir. 1979) (receipt of firearms and making false writ-
ten statements).
Shorter — a convicted felon and illegal drug user who had two
guns in his house — was charged in two counts (eight and nine) of
violating § 922(g). Although it is undisputed that Shorter was guilty
of only one § 922(g) offense, the judgment entered in his case reflects
that he "is adjudged guilty" of counts "Eight and Nine (merged for
sentencing purposes)" (emphasis added). Shorter did not object in dis-
trict court, and that court failed to vacate one of the convictions.
Because the district court sentenced Shorter for only one § 922(g)
offense, the majority holds that he "stands convicted of only one 18
U.S.C.A. § 922(g) offense." Ante at 8 (emphasis added). I disagree
and would use plain error analysis to correct the mistake. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-37 (1993).
First, there is error in the judgment entered by the district court. See
Olano, 507 U.S. at 732-34. The judgment states that Shorter "is
adjudged guilty" of counts eight and nine, which were duplicative
§ 922(g) charges for one offense. The majority holds that there was
no duplicative conviction (and hence no error) because the district
court merged counts eight and nine for sentencing purposes and
imposed a special assessment for only one § 922(g) offense. The
majority contends that its holding is in line with United States v.
Jones, 204 F.3d 541 (4th Cir. 2000), but Jones does not support the
proposition that merging the § 922(g) counts for sentencing means
that Shorter has only one gun conviction. In Jones, where the defen-
dant was sentenced on convictions for possession of crack with the
intent to distribute and the lesser included offense of possession, we
vacated the sentence on the possession count. The discussion in Jones
is cryptic, but its citation to Brown v. Ohio, 432 U.S. 161 (1977),
reveals that we were enforcing the Double Jeopardy Clause’s prohibi-
tion on multiple punishments for the same offense. See Jones, 204
F.3d at 544. Here, the questions are whether Shorter actually commit-
ted two offenses and whether two convictions may be noted on his
judgment; the question is not (as it was in Jones) whether the defen-
dant’s two offenses warranted multiple punishments. Because Dun-
UNITED STATES v. SHORTER 11
ford makes clear that Shorter’s conduct constituted only one § 922(g)
violation, see 148 F.3d at 388-90, recording two convictions was
error, regardless of how the sentence was structured.
Second, the error in the judgment is plain, that is, the error is "clear
under current law." See Olano, 507 U.S. at 732, 734. It is not enough
that the district court merged Shorter’s § 922(g) counts for sentencing
and that it imposed only one special assessment. These measures do
not change the number of convictions reflected on the face of the
judgment. Shorter still stands convicted of two counts of firearms
possession. The Supreme Court said in Ball that when a person has
been convicted of duplicative offenses, the "only remedy" is to vacate
one of the convictions. Ball, 470 U.S. at 864. By failing to follow
Ball’s clear instruction, the district court committed plain error.
Third, the error affects Shorter’s substantial rights. See Olano, 507
U.S. at 732, 734. Merging the duplicative convictions for sentencing
cures much of the prejudice, but "[t]he separate conviction . . . has
potential adverse collateral consequences that may not be ignored."
Ball, 470 U.S. at 865 (emphasis omitted). See also Bennafield, 287
F.3d at 324. I recognize that insofar as the federal sentencing guide-
lines are concerned, the second conviction is not likely to affect
Shorter in the future. See U.S.S.G. §§ 4A1.1-.2 (2002) (determining
criminal history category by length of sentence, not number of con-
victions). Nevertheless, the extra conviction might render Shorter eli-
gible for enhanced sentencing under a state repeat offender statute. In
addition, any prosecutor, probation officer, prospective employer, or
reporter looking at Shorter’s record will see two convictions. The
extra conviction will be available "to impeach [his] credibility and
[will] certainly carr[y] the societal stigma accompanying any criminal
conviction." Ball, 470 U.S. at 865.
Finally, I firmly believe that the error "seriously affects the fair-
ness, integrity or public reputation of judicial proceedings," Olano,
507 U.S. at 732, 735-37 (internal quotation marks, brackets, and cita-
tion omitted), and we should exercise our discretion to correct it.
Shorter was convicted twice for a crime he only committed once.
There is no public good to be served by allowing the extra conviction
to stand. Retaining the conviction is unfair to Shorter, and it makes
our system look bad. Because all of the requirements for plain error
12 UNITED STATES v. SHORTER
relief are satisfied, I would vacate one of Shorter’s § 922(g) convic-
tions.