                                                        [DO NOT PUBLISH]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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