           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 10, 2008

                                     No. 07-40799                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

MARSKA FLOYD MCDANIEL

                                                  Defendant - Appellant



                  Appeals from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 1:06-CR-134-1


Before JOLLY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       A jury found Marska Floyd McDaniel guilty of violating 18 U.S.C. §
922(g)(1) by being a felon in possession of a firearm or ammunition affecting
interstate or foreign commerce. McDaniel appeals from his conviction. We
AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-40799

                                       I.
      In 1982, a Texas state jury convicted McDaniel of aggravated robbery. He
received a thirty-five year sentence, but he was paroled before completing it. As
of August 2006, McDaniel resided at 1500 Dewalt Avenue, Port Arthur, Texas.
He managed a convenience store that his father and brother co-owned; the
convenience store also was located in the building at 1500 Dewalt Avenue.
      On August 22, 2006, McDaniel complained to the Port Arthur police that
an ex-girlfriend and three other women had burglarized the convenience store
at 1500 Dewalt Avenue and had assaulted him there. Officer Legnon of the Port
Arthur Police Department responded to McDaniel’s complaint. When Officer
Legnon spoke with McDaniel about the complaint, McDaniel referred to having
a gun in the store. McDaniel also indicated he would not hesitate to shoot the
women if they returned and he needed to defend himself. Based on McDaniel’s
statements, the Port Arthur police initiated an investigation of McDaniel for
being a felon in possession of a firearm.
      The Port Arthur police asked the federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) to help with the investigation. ATF Special
Agent Quo Mitchell interviewed the four women about whom McDaniel had
complained. McDaniel’s ex-girlfriend, Shilah Guidry, told Agent Mitchell that
she had seen five firearms and a silencer at 1500 Dewalt Avenue approximately
two months prior. Based on Guidry’s statement and on McDaniel’s earlier
comment indicating that he had a gun in the convenience store, Agent Mitchell
obtained a federal warrant to search 1500 Dewalt Avenue for firearms,
ammunition, one or more silencers, and other items pertaining to the possession
of firearms. The ATF also placed McDaniel’s residence and Guidry’s residence
under surveillance.
      On September 5, ATF agents stationed at Guidry’s residence noticed a
truck parked behind the residence that they believed belonged to McDaniel. The


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truck was parked unlawfully, and the agents alerted the Port Arthur police to
this fact in an attempt to draw McDaniel out of Guidry’s residence. A police
officer responded to the scene; and when he walked around the truck, McDaniel
exited the residence.
      The ATF agents approached the pair, and ATF Special Agent Bart Mora
identified himself to McDaniel. Mora informed McDaniel that the ATF would
be executing a search warrant at 1500 Dewalt Avenue and asked McDaniel for
keys to the structure so that the ATF would not need to force entry. McDaniel
supplied Mora with a set of roughly two dozen keys, and Mora placed McDaniel
in handcuffs so that the ATF agents would not need to treat him as a potential
threat to the agents’ safety. Mora advised McDaniel he was not under arrest but
nevertheless read McDaniel his Miranda rights. Mora asked McDaniel about
the truck, and McDaniel told Mora he had purchased it. Mora asked whether
anything was inside the truck with which Mora should be concerned, and
McDaniel replied that a firearm was under the driver’s side seat. Mora entered
the vehicle and found a firearm where McDaniel said it would be. The firearm
was in a cigar box, which also contained loose ammunition and some receipts
that came from the convenience store at 1500 Dewalt Avenue.
      Mora then asked whether there were any firearms at 1500 Dewalt Avenue.
McDaniel responded that there were two: one gun under the convenience store’s
counter and a long gun in the area near the residence’s water heater. The ATF
agents, then considering McDaniel to be under arrest, transported him to 1500
Dewalt Street and searched the premises. They found a loaded Taurus, Model
PT 99 (AF) nine-millimeter handgun under the convenience store’s counter, and
they also found a round of .38 Remington caliber ammunition on top of the
counter. In the residence’s water heater closet, they found a loaded .22 caliber
semi-automatic Marlin long rifle.     Additionally, ATF Special Agent Larry
Sanders found a box of ammunition elsewhere in the residence. Throughout the


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search of 1500 Dewalt Avenue, McDaniel informed ATF agents which of his
roughly two dozen keys matched which lock the agents needed to open.
      Special Agent Sanders later examined all of the firearms and ammunition
that ATF agents found at 1500 Dewalt Avenue, and he determined no item was
manufactured in Texas. The Government charged McDaniel with violating 18
U.S.C. § 922(g)(1) by being a felon in possession of a firearm or ammunition
affecting interstate or foreign commerce. Before trial, the district court held an
evidentiary hearing at which McDaniel sought to suppress the Government’s
evidence against him. The court denied McDaniel’s motion to suppress, and a
jury convicted him following a trial. McDaniel appeals from his conviction.
                                        II.
      McDaniel contends on appeal that the evidence was insufficient to support
his conviction and that the district court erred in denying his motion for
judgment of acquittal. He also contends that the district court erred in denying
his motion to suppress evidence seized as a result of the search warrant because
the affidavit supporting the warrant was insufficient. He argues further that
the district court erred in denying his motion to suppress statements made to
officers, on the basis that he did not voluntarily waive his Fifth Amendment
right against self-incrimination.
                                        III.
                                        A.
      We first consider McDaniel’s claim that the search warrant that provided
the basis for the seized firearms and ammunition was not supported by a
sufficient affidavit. When reviewing a district court’s denial of a motion to
exclude evidence, we review the court’s factual findings for clear error and its
conclusions of law de novo. United States v. Pope, 467 F.3d 912, 915-16 (5th Cir.
2006).



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      A valid search warrant may be issued only upon a finding of probable
cause. United States v. Brown, 941 F.2d 1300, 1302 (5th Cir. 1991). The
information necessary to show probable cause must be contained within a
written affidavit given under oath. Id. Probable cause does not require proof
beyond a reasonable doubt; a magistrate need only have a substantial basis for
concluding that a search would uncover evidence of wrongdoing. Id. A
magistrate’s determination is entitled to deference by reviewing courts. Id. In
addition, where officers obtained evidence in objectively reasonable good-faith
reliance upon a search warrant, the evidence is admissible even if the affidavit
on which the warrant was based was insufficient to establish probable cause.
Pope, 467 F.3d at 916.
      In this case, the district court held an evidentiary hearing to determine
whether the affidavit supporting the search warrant was supported by sufficient
evidence. The district court found that some of the statements supporting the
affidavit turned out to be false:   primarily those made by McDaniel’s ex-
girlfriend that he had five guns at the premises and an illegal silencer. The
district court, however, also found that the affidavit was independently
supported by a statement by a police officer that McDaniel had admitted to him,
after being assaulted by the ex-girlfriend in his store, that McDaniel possessed
a gun there and would use it. The district court found that this statement by
McDaniel independently created the substantial basis necessary to conclude that
a search warrant would uncover evidence of wrongdoing. McDaniel does not
challenge this independent finding. There was sufficient evidence to support the
search warrant of McDaniel’s business and residence, and the district court did
not err in denying McDaniel’s motion to suppress evidence obtained as a result
of the search.




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                                        B.
      We next consider McDaniel’s contention that his oral statements were
admitted into evidence in violation of his rights against self-incrimination. He
contends that he did not knowingly and voluntarily waive his Miranda rights.
      The district court’s determination regarding the validity of a defendant’s
waiver of his Miranda rights is a question of law reviewed de novo, but the
court’s factual findings underlying the determination are reviewed for clear
error. United States v. Cardenas, 410 F.3d 287, 292 (5th Cir. 2005). The
determination of whether a waiver is voluntarily made has two distinct
dimensions:
              First, the relinquishment of the right must have been
              voluntary in the sense that it was the product of a free
              and deliberate choice rather than intimidation,
              coercion, or deception. Second, the waiver must have
              been made with a full awareness of both the nature of
              the right being abandoned and the consequences of the
              decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421 (1986). The Supreme Court has cautioned,
however, that “[t]he sole concern of the Fifth Amendment, on which Miranda
was based, is governmental coercion.” Colorado v. Connelly, 479 U.S. 157, 170
(1986).   Whether a waiver of the Fifth Amendment privilege is voluntary
depends on “the absence of police overreaching, not on ‘free choice’ in any
broader sense of the word.” Id.
      In this case, the district court determined that McDaniel voluntarily
waived his rights to silence and to counsel, and that his statements, made after
receiving Miranda warnings, were voluntary. The Government offered proof
that McDaniel was read detailed statements of his rights to silence and to
counsel and that he stated that he understood them. The evidence also indicated
that McDaniel had received a Master’s degree, and was able to understand the


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                                  No. 07-40799

warnings.   Although McDaniel testified that he did not receive complete
warnings, the district court’s credibility determination was not clearly
erroneous. The Government presented evidence that McDaniel heard and
understood his constitutional rights and voluntarily waived them. Accordingly,
the district court did not err in finding that McDaniel had knowingly and
voluntarily waived his constitutional rights.
                                       C.
      Finally, we address McDaniel’s argument that the evidence was
insufficient to support his conviction. We review the district court’s denial of a
judgment of acquittal de novo. United States v. Williams, 520 F.3d 414, 420 (5th
Cir. 2008). We will affirm if “a reasonable trier of fact could find that the
evidence establishes guilt beyond a reasonable doubt.” United States v. Bell, 678
F.2d 547, 549 (5th Cir. 1982) (en banc). The evidence and all reasonable
inferences drawn from it are to be viewed on appeal in the light most favorable
to the government. Id. “In addition, all credibility determinations are made in
the light most favorable to the verdict.” United States v. Moreno, 185 F.3d 465,
471 (5th Cir. 1999). “The evidence need not exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of the evidence. ”
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998).
      To establish a violation of § 922(g)(1), the government has the burden to
prove beyond a reasonable doubt: “(1) that the defendant previously had been
convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm
traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d
314, 318 (5th Cir. 2005). Here, McDaniel contends that he did not possess the
firearms or ammunition at issue.
      Possession may be actual or constructive. United States v. Munoz, 150
F.3d 401, 416 (5th Cir. 1998).      “Actual possession means the defendant

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knowingly has direct physical control over a thing at a given time. Constructive
possession means ownership, dominion or control over a thing, or control over
the premises where the thing is found.” Id. (citations omitted). Possession may
be shown through either direct or circumstantial evidence. Id. In a case when
the premises where a firearm is found are jointly occupied, we have held that
constructive possession may be found only where, in addition to dominion and
control over the premises, there is “some evidence supporting at least a plausible
inference that the defendant had knowledge of and access to the weapon or
contraband.” United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).
      In this case, the Government presented evidence that ATF agents found
an Iver Johnson .32 caliber revolver in McDaniel’s truck. The Government also
provided evidence that McDaniel had purchased the truck, that McDaniel
supplied keys to the truck, that McDaniel told Special Agent Mora exactly where
the firearm was inside the truck, and that McDaniel told Mora he had placed the
firearm there. McDaniel constructively possessed the firearm and ammunition
that ATF agents seized from McDaniel’s truck.
      The Government further introduced the following evidence: that McDaniel
informed ATF agents they would find two guns at 1500 Dewalt Avenue, that
McDaniel informed the agents one gun was under the convenience store’s
counter, and that McDaniel informed the agents a long gun was in the
residence’s water heater area. The Government entered evidence that ATF
agents found a loaded Taurus, Model PT 99 (AF) nine-millimeter handgun under
the convenience store’s counter and a round of .38 Remington caliber
ammunition on top of the counter, a loaded .22 caliber semi-automatic Marlin
long rifle (a long gun) in the residence’s water heater closet, and more
ammunition elsewhere in the residence. Additionally, the Government entered
evidence that McDaniel demonstrated dominion and control over the interior of
the structure at 1500 Dewalt Avenue by informing ATF agents which of his

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                                       No. 07-40799

roughly two dozen keys matched which lock within the structure.1 This evidence
supports a plausible inference that McDaniel had knowledge of and access to the
guns and ammunition that the ATF agents found at 1500 Dewalt Avenue; he
constructively possessed these items.
                                             IV.
       For the foregoing reasons, McDaniel’s conviction is
                                                                                AFFIRMED.




       1
         This evidence does not exhaust what the Government entered to prove McDaniel
violated 18 U.S.C. § 922(g)(1). It is, however, sufficient evidence to support McDaniel’s
conviction. It is therefore unnecessary to discuss the rest of the Government’s evidence against
McDaniel.

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