                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS        November 5, 2003
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                      _____________________                     Clerk

                           No. 02-60029
                         Summary Calendar
                      _____________________

                    United States of America,

                      Plaintiff - Appellee,

                             versus

                          Robert Payne,

                     Defendant - Appellant.

_________________________________________________________________

           Appeal from the United States District Court
        for the Northern District of Mississippi, Oxford
               District Court No. 3:00-CR-145-ALL-D
_________________________________________________________________


Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PER CURIAM.

     Robert Payne appeals his jury conviction for the following

offenses: 1) possession with intent to distribute in excess of 50

grams of a mixture and substance containing cocaine base; 2)

possession of a firearm in furtherance of drug trafficking; 3)

possession of a firearm after having been convicted of a felony;



     1
     Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                               -1-
and 4) possession of an illegal firearm.    The charges against

Payne arose from a police stop of his vehicle on October 11,

2001, and the subsequent searches of his car and the trailer of

his girlfriend, Rolanda Jeffries.

             Constitutionality of the Trailer Search

     In his first issue, Payne argues the district court abused

its discretion by denying his motions to suppress evidence seized

from Jeffries’ trailer.    Payne maintains his privacy rights were

violated by the search of the trailer, and therefore any evidence

seized in the search should have been suppressed.    He argues that

as an overnight guest he had a privacy right in the trailer.      The

district court determined Payne did have a privacy right, but

denied Payne’s motion because it found Payne voluntarily

consented to the search.   To the extent Payne complains about the

search on those grounds, this Court will examine the district

court’s finding that Payne voluntarily consented to the search

rather than revisit the privacy right issue.

     This Court accepts a district court’s ruling on a motion to

suppress based on live testimony, unless the district court’s

findings of fact are clearly erroneous or influenced by an

incorrect view of the law.    See United States v. Randall, 887

F.2d 1262, 1265 (5th Cir. 1989).    The denial of a motion to

suppress is reviewed in the light most favorable to the party

prevailing below.   See United States v. Foy, 28 F.3d 464, 474


                                 -2-
(5th Cir. 1994).    If the record below supports more than one

permissible interpretation of the facts, the reviewing court will

accept the district court’s choice between them, absent clear

error.   See United States v. Posada-Rios, 158 F.3d 832, 868 (5th

Cir. 1998).

     Because the district court indicated that Jeffries’ Fourth

Amendment rights were likely violated by the search of the

trailer, Payne argues that his Fourth Amendment rights were

likewise violated by the trailer search.

     This Court has held that “[w]here consent is preceded by a

Fourth Amendment violation the government has a heavier burden of

proving consent.”    United States v. Kelley, 981 F.2d 1464, 1470

(5th Cir. 1993).    The government must show consent was both

voluntary and independent of any violation “to such a degree as

to cause a break in the chain of events sufficient to refute the

inference that the evidence was a product of the constitutional

violation.”   United States v. Vega, 221 F.3d 789, 801 (5th Cir.

2000).   To determine whether there has been a sufficient break in

the chain of events, this Court examines the following factors:

1) the temporal proximity of the illegal conduct and the consent;

2) the presence of intervening circumstances; and 3) the purpose

and flagrancy of the initial misconduct.    See id.

     The voluntariness of consent is determined by considering

the totality of all the circumstances at the time of consent.


                                 -3-
Kelley, 981 F.2d at 1470.   The government must prove

voluntariness by a preponderance of the evidence.    United States

v. Jones, 234 F.3d 234, 242 (5th Cir. 2000).   This Court set

forth the following factors to aid in that consideration: 1) the

voluntariness of the defendant’s custodial status; 2) the

presence of coercive police procedures; 3) the extent and level

of the defendant’s cooperation with the officers; 4) the

defendant’s awareness of his right to refuse consent; 5) the

defendant’s education and intelligence; and 6) the defendant’s

belief that no incriminating evidence will be found.    Id.    No

single factor is dispositive.   Id.

     Although Payne argues that the violation of Jeffries’ Fourth

Amendment rights tainted the search as to him, Payne’s consent

was independent of the purported violation.    Special Agents Jim

Holland and Phillip Robertson of the Drug Enforcement Agency

testified that Payne was not present when they arrived at the

trailer.   The agents testified that they announced themselves

when they arrived, spoke to Payne’s girlfriend through the closed

trailer door, and then heard a toilet flushing.   The agents

testified that they then broke into the trailer because they

thought Jeffries might be flushing contraband down the toilet.

Payne arrived at the trailer approximately one hour after the

officers entered.   The agents testified that Payne told them he

wanted to cooperate with them, led them to the trailer,


                                -4-
encouraged Jeffries to consent to the search, and told the agents

where the guns and a scale were hidden.      Not only was there a

significant time lapse between the purported violation of

Jeffries’ Fourth Amendment rights and Payne’s arrival, but

Payne’s arrival served as an intervening circumstance in the

chain of events that led to the discovery of the evidence Payne

sought to suppress.    Any impropriety in the officers’ initial

actions was too attenuated from Payne’s consent to taint any

subsequent search of the trailer.      As a result, the district

court correctly found that Payne’s consent was independent of any

earlier violation of Jeffries’ Fourth Amendment rights.

      Likewise, the district court correctly found that Payne

voluntarily consented to the search of the trailer.      Although

Payne’s account of the events surrounding the search differed

from that of the officers, the district court did not err by

relying on the officers’ account of the events.      See Posada-Rios,

158 F.3d at 868.    Payne’s high school education indicates he was

able to understand his right to refuse consent.      His instructions

about the gun and scale show that he knew where the contraband

could be found.    Considering the evidence in the light most

favorable to the government as the prevailing party on the motion

to suppress, this Court finds the district court did not err.

             Constitutionality of the Vehicle Search

     In his second issue, Payne argues the district court erred


                                 -5-
in denying his motion to suppress evidence obtained from the

search of the car he was driving.     Payne maintains his Fourth

Amendment rights were violated because there was no probable

cause to stop him or to search the car.     Again, this Court

accepts a district court’s rulings on a motion to suppress

evidence based on live testimony, absent clear error.     See

Randall, 887 F.2d at 1265.

     Police officers may search a vehicle without a warrant if

they have probable cause to believe the vehicle contains

contraband or evidence of a crime.     United States v. Buchner, 7

F.3d 1149, 1154 (5th Cir. 1993).    Probable cause exists when the

facts and circumstances known by the arresting officers “are

sufficient in themselves to warrant a man of reasonable caution

in the belief that the person to be arrested has committed or is

committing an offense.”   United States v. Mendez, 27 F.3d 126,

129 (5th Cir. 1994).   A probable cause determination is based on

the totality of the circumstances, viewed in light of the

observations, knowledge, and training of the officers involved in

the search.   Buchner, 7 F.3d at 1154.

     In the instant case the government presented ample evidence

that Agent Holland had probable cause to stop and search the car

Payne was driving.   Agent Holland testified that when he stopped

the car he knew Payne was the subject of an active warrant in an

Illinois criminal case.   Holland testified that a confidential


                                -6-
source told him Payne had sold cocaine to the confidential source

in the past.   Holland had also listened to a tape-recorded

conversation in which Payne agreed to sell cocaine to the

confidential source.   Holland testified he saw Payne accelerate

rapidly when followed by an unmarked car.   Holland also testified

he watched Payne attempt to quickly reverse while reaching under

his seat when confronted by marked police cars.   Officer McMillin

confirmed Holland’s observations of Payne’s actions while driving

the car.

     Finding no violation in the stop and search of Payne’s car,

this Court upholds the district court’s denial of Payne’s motion.

               Constitutionality of the Arrest Warrant

     Although Payne framed his third issue2 in terms of the

constitutionality of the arrest warrant, he focuses his argument

on his contention that the district court erred in failing to

hold an evidentiary hearing on his second motion to suppress

evidence seized from the car and the trailer.   Specifically,

Payne contends he was entitled to a second evidentiary hearing

because the facts were not fully developed in the first hearing.

This failure was due, he claims, to poor performance by his first


     2
      Payne argues the warrant for his arrest and the searches
was obtained after they had taken place. The warrant was
actually only for Payne’s arrest, and made no mention of a
search. The district court found no violation in warrant
procedures because it found neither search was predicated on a
search warrant: the search of the car was based on probable cause
and the search of the trailer was based on Payne’s consent.

                                 -7-
lawyer.

     Under Rule 12(d) of the Federal Rules of Criminal Procedure,

the district court had discretion to defer ruling on a motion to

suppress until trial.     See United States v. Kirk, 528 F.2d 1057,

1064 (5th Cir. 1976).    This Court reviews a decision not to hold

an evidentiary hearing for abuse of discretion.     See id.

     In the instant case, the district court held a full

evidentiary hearing on Payne’s first motion to suppress evidence.

The district court denied the motion as to the search of the car,

but held the motion in abeyance as to the search of the trailer.

No new evidence was discovered between that hearing and Payne’s

second motion.    The only change was the replacement of Payne’s

first attorney.    Because Payne’s second motion reiterated the

arguments made in his first motion, the district court decided

not to hold a second pre-trial evidentiary hearing.    The district

court did, however, hold a second suppression hearing on the

trailer search during trial, but outside of the jury’s presence.

This hearing covered much the same ground as the pre-trial

hearing.   The district court decided not to suppress evidence

from the trailer search.    Because the actions of the district

court reveal a careful consideration of Payne’s motions, this

Court finds no abuse of discretion in the district court’s

decision not to hold two evidentiary hearings on the same issue

with the same evidence.


                                  -8-
                     Sufficiency of the Evidence

     In his fourth issue, Payne argues there was insufficient

evidence to convict him of being a felon in possession of a

firearm that had traveled in interstate commerce, in violation of

18 U.S.C. § 922(g)(1).    Specifically, Payne complains that the

charge lacked what he argues were the necessary requirements of

intent and “foreign commerce.”

     A defendant is guilty under 18 U.S.C. 922(g)(1) if he is a

convicted felon in possession of a firearm, and that firearm

previously traveled in, or affected interstate commerce.         United

States v. Cavazos, 288 F.3d 706, 712 (5th Cir. 2002).     A

violation may be proven even if the defendant possessed the

firearm entirely intrastate.     United States v. Gresham, 118 F.3d

258, 265 (5th Cir. 1997).    This Court has repeatedly confirmed

the constitutionality of 18 U.S.C. 922(g)(1).      See id. at 264.

Proof of an interstate nexus can be based upon expert testimony

by a law enforcement officer that the firearm was manufactured in

a different state.    United States v. Privett, 68 F.3d 101, 104

(5th Cir. 1995).   The statute requires neither intent on the part

of the defendant nor a showing of “foreign commerce.”      See

Gresham, 118 F.3d at 265.

     In Payne’s trial, abundant evidence was presented that Payne

violated the statute.    Court records showed that Payne was a

convicted felon.   Agent Holland and Officer McMillin testified


                                 -9-
that the vehicle Payne was driving contained a firearm.    Agent

Holland also testified that the trailer where Payne sometimes

spent the night contained three firearms that Payne said belonged

to him.    Richard Vasquez, an agent with the with the Bureau of

Alcohol, Tobacco and Firearms and an expert on gun

manufacturing3, testified that each of the weapons listed in the

indictment against Payne was manufactured outside of Mississippi.

This Court finds the jury was presented with sufficient evidence

to find that Payne violated 18 U.S.C. § 922(g)(1) and therefore

upholds Payne’s conviction on that count.

          Payne’s Complaints about the Prosecutor’s Remarks

     In his fifth issue, Payne argues that certain statements

made by the prosecutor during the suppression hearing and at

trial were improper and prejudicial.    Because Payne did not

object to these remarks at the time they were made, this Court

will consider first whether they were improper, and second,

whether they amounted to plain error.    See United States v.

Washington, 44 F.3d 1271, 1278 (5th Cir. 1995); FED. R. CRIM. P.

52(b).

     In his closing argument, a prosecutor is allowed to argue

the conclusions he thinks the jury should draw from the evidence,

but he may not express his personal opinion on guilt or innocence



     3
      The district court accepted Vasquez as an expert on gun
manufacturing without objection from Payne.

                                -10-
or the credibility of any of the witnesses.     United States v.

Binker, 795 F.2d 1218, 1224 (5th Cir. 1986).    Even if a

prosecutor oversteps these boundaries, the conviction will stand

unless the prosecutor’s statements “prejudicially affected

substantial rights of the defendant.”   Id.    To assess the degree

of prejudice this Court considers: 1) the magnitude of the

prejudicial effect; 2) the efficacy of the caution; and 3) the

strength of the evidence against the defendant.     Id.

     During the suppression hearing, which was held outside the

jury’s presence, the prosecutor argued that the motion to

suppress should be denied because agents had testified that Payne

brought them to the trailer.   Payne argues this statement was

improper because the prosecutor did not state that Payne was

under arrest at the time or that Jeffries was under duress.      In

making the statement the prosecutor referred only to the

testimony of the agents; he neither advocated a personal opinion

nor referred to anything outside the record.    Therefore, this

Court finds nothing improper in this statement.     See United

States v. Chase, 838 F.2d at 750.

     Payne also argues that the following statement made by the

prosecutor to the jury at trial was improper: “this is what’s

poisoning the children of America and these are the tools of the

drug trade.”   The prosecutor was apparently referring to the cell

phone, scale, and guns confiscated from Payne.    This remark may


                               -11-
have been improper because there was no testimony that these

objects were tools of the drug trade, but any impropriety fell

short of plain error.   First, this statement was not highly

prejudicial.   Second, the government had presented a strong case

against Payne that included testimony from a confidential source,

several police officers and D.E.A. agents, as well as confiscated

guns and cocaine.   Third, the district court instructed the jury

at the beginning and end of trial that statements by the

attorneys were not evidence.   Therefore this Court finds this

statement by the prosecutor did not constitute plain error.      See

Washington, 44 F.3d at 1278.

     Payne additionally argues that the prosecutor made an

improper remark during his closing when he said that Payne was

driving ninety miles per hour on a gravel road.   In light of

witness testimony that Payne was driving at that speed, the

prosecutor was entitled to include the statement in his closing.

This Court finds this statement neither referred to anything

outside the record nor advanced the prosecutor’s personal opinion

and therefore was not error.   See Chase, 838 F.2d at 750.

               Payne’s Ineffective Assistance Claim

     In his final issue, Payne argues that his Sixth Amendment

right to counsel was violated by both of his trial attorneys.     In

support of his argument, Payne alleges his first attorney was

late to the suppression hearing and failed to properly


                               -12-
investigate the case and to rebut government witnesses.    Payne

also contends his second attorney failed to properly object to

the district court’s statements about the searches, and failed to

rebut government witnesses.

     Ordinarily this Court will not consider a claim of

ineffective assistance of counsel on direct appeal. United States

v. Higdon, 832 F.2d 312, 313-314 (5th Cir. 1987).    An exception

is made if the record below allows for a fair evaluation of the

merits of the claim.    Id.; Massaro v. United States, 123 S.Ct.

1690, 1696 (2003)(reserving this exception for situations of

“apparent” or “obvious” shortcomings of counsel).    The instant

case does not fit into this exception because the record does not

provide information on the attorneys’ trial strategies, the

motivations behind their trial tactics, or the extent of their

investigations.   As a result, this Court will not consider

Payne’s claim of ineffective assistance of counsel in this

appeal.    This Court therefore AFFIRMS the district court’s

judgment.

AFFIRMED




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