                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       January 18, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 05-3087
 ION MINDRECI,                                           (D. Kan)
                                             (D.C. No. 04-CR-20067-01-JWL)
          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and MURPHY, Circuit Judges.


      Defendant was charged in Minnesota state court with fleeing a peace officer,

misdemeanor assault, obstructing arrest, expired registration, and no insurance.

Defendant appeared for several hearings prior to trial. Defendant’s last appearance

in state court was on September 11, 2001, the day he was scheduled for trial. Due

to the terrorist attacks, the judge postponed the trial until November 6, 2001. The

court gave Defendant verbal notice of the November 6th trial date. Several days

later the court set a pretrial hearing for October 23, 2001. The court and the


      *
        This order and judgement is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
prosecutor sent Defendant several notices regarding the October hearing.        The

notices were returned to the sender. Some of the returned notices contained the

following handwritten notation: “Refusal for cause without dishonor and without

recourse to me.”    Defendant failed to appear for the October hearing and the

November trial. Warrants were issued for his arrest.

      In May 2004, police officers arrived at an apartment complex in Olathe,

Kansas to execute an outstanding arrest warrant for an individual named Michael

Strain. Defendant was with Strain when police arrested Strain in the parking lot of

the apartment complex. The officers detained Defendant but released him when they

did not locate any outstanding warrants. Michelle Knight, another resident in the

apartment complex, observed Defendant and Strain’s encounter with the police.

Approximately ten minutes after the police left with Strain, she witnessed Defendant

hurriedly carrying several items from his apartment to a nearby garage. The next

day, Knight contacted the FBI and described what she had witnessed. She told FBI

Agent Cudmore she saw Defendant carrying a long object covered by an orange

sheath. She assumed the object was a shotgun because of its shape and the manner

in which Defendant was holding it. She also reported that on two additional trips to

the garage, Defendant carried several black boxes about the size of shoe boxes and

a medium size cardboard box.

      Based on this information, Agent Cudmore drafted an affidavit and submitted


                                         2
it to a magistrate judge. The affidavit included the following information:

      [T]he neighbor observed Mindreci exit his apartment carrying a shotgun
      and a cardboard box containing an unknown number of smaller black
      boxes. The neighbor observed Mindreci holding the shotgun to his
      waist with the barrel pointed upward. The neighbor further described
      the shotgun as being “long” and its barrel as being partially covered
      with “an orange colored sheet.” The neighbor observed Mindreci, upon
      leaving his apartment, as “making haste” and “feverishly” carrying the
      shotgun and cardboard box to a nearby garage . . . . The neighbor then
      observed Mindreci making two additional trips from his apartment to
      the aforesaid garage. The trips were also characterized, by the
      neighbor, as “hasty” and also involved Mindreci carrying cardboard
      boxes containing an unknown number of smaller black boxes. Such
      descriptions are consistent with either ammunition boxes and/or storage
      containers for handguns.

      The magistrate judge issued a search warrant based on the affidavit. During

the execution of the search warrant, the FBI located seven firearms in Defendant’s

garage including a 7.62 x 30 mm SKS rifle; a 9mm Intratec; a .357 Smith &Wesson

revolver; a .38 caliber Smith & Wesson revolver; a .22 caliber Sturm, Ruger and Co.

rifle; a 12 gauge Savage shotgun; and a Turkish Mauser Rifle. At least two of the

handguns were found in black gun boxes, 1 and the SKS rifle was partially covered

with an orange hunting vest. Police also found ammunition in the garage and in

Defendant’s apartment. Defendant was charged with being a fugitive in possession

of firearms in violation of 18 U.S.C. § 922(g)(2).


      1
         Defendant asserts that one of the gun cases was maroon, not black.
Nothing in the record on appeal supports his claim, and both the Government’s
brief and the trial court’s order state three black cases containing handguns were
found in the garage.

                                         3
      Prior to trial, Defendant filed a motion to suppress evidence, claiming the

affidavit in support of the search warrant contained false or reckless statements in

violation of Franks v. Delaware, 438 U.S. 154 (1978). The court held a Franks

hearing and afterward issued an order denying Defendant’s motion to suppress. The

case proceeded to trial where a jury convicted Defendant of being a fugitive in

possession of firearms. The jury specifically found Defendant possessed all seven

firearms seized in the garage. After trial, Defendant filed a Rule 29 motion for

judgment of acquittal. See Fed. R. Crim. P. 29. Defendant argued insufficient

evidence of a nexus between himself and the firearms because his wife and Strain

had access to the garage. The court found insufficient evidence to link Defendant

to the 12 gauge Savage shotgun; the Turkish Mauser Rifle; and the .22 caliber Sturm,

Ruger and Co. rifle, and therefore, granted Defendant’s motion as to those weapons.

The court denied Defendant’s motion as to the SKS rifle and the handguns (9 mm

Intratec, .357 Smith & Wesson revolver, .38 caliber Smith & Wesson revolver)

reasoning that Ms. Knight’s observations sufficiently proved a nexus between

Defendant and the guns.

                                          I.

      Defendant first challenges the district court’s denial of his motion to suppress,

arguing no probable cause existed to issue the search warrant because Agent

Cudmore’s affidavit contained information that was intentionally false or in reckless


                                          4
disregard for the truth. In reviewing the denial of a motion to suppress, we view the

evidence in the light most favorable to the government and accept the district court’s

factual findings unless they are clearly erroneous. United States v. Higgins, 282 F.3d

1261, 1269 (10th Cir. 2002).          We review the ultimate determination of

reasonableness under the Fourth Amendment de novo. Id.

      “It is a violation of the Fourth Amendment for an affiant to knowingly and

intentionally, or with reckless disregard for the truth, make a false statement in an

affidavit.” United States v. Basham, 268 F.3d 1199, 1204 (10th Cir. 2001) (citing

Franks, 438 U.S. at 171-72). Where a false statement is made in an affidavit for a

search warrant, the search warrant must be voided only if the affidavit’s remaining

content is insufficient to establish probable cause. Franks, 438 U.S. at 171-72. In

determining whether probable cause supports a search warrant, we review the

sufficiency of the underlying affidavit by looking at the totality of the circumstances

and ensuring “ the magistrate had a substantial basis for concluding that probable

cause existed.”   United States v. Tisdale, 248 F.3d 964, 970 (10th Cir. 2001)

(internal citations and quotations omitted). Probable cause to issue a search warrant

exists only when the supporting affidavit sets forth facts that lead a prudent person

to believe a fair probability exists that contraband or evidence of a crime will be

found in a particular place. See United States v. Wicks, 995 F.2d 964, 972-73 (10th

Cir. 1993).


                                          5
      The court held a Franks hearing where Ms. Knight testified about information

she relayed to Agent Cudmore. She stated she told Agent Cudmore she saw a

covered object she believed to be a shotgun because of its shape and because of the

manner in which Defendant carried it.            She maintained she never told Agent

Cudmore she actually saw the shotgun. She also testified she saw a long object

covered in a “sheath” not a “sheet.” Ms. Knight noted she had difficultly explaining

what she saw because she was not familiar with guns. Nevertheless, she maintained

she believed Defendant was carrying a shotgun.           She also explained she saw

Defendant making two additional trips to the garage. On one trip he carried a

cardboard box, and on the next trip he carried several black boxes. Agent Cudmore

also testified at the hearing. He stated Ms. Knight told him she saw Defendant

carrying a shotgun, “like the kind you see on T.V.” Agent Cudmore admitted Ms.

Knight did not use technical terms like “barrel,” but instead used descriptive words

like “long part” in describing the barrel.

      The district court concluded Agent Cudmore’s representation in the affidavit

that Defendant carried a “cardboard box containing an unknown number of smaller

black boxes” was either intentionally false or in reckless disregard of the truth. The

court noted Ms. Knight testified she could not see the contents of the cardboard box,

and Agent Cudmore could not have drawn such a conclusion based on the

information Ms. Knight provided. As required by Franks, the court did not use the


                                             6
information in its probable cause analysis. As to Agent Cudmore’s representations

concerning the shotgun, the court determined that the affidavit included Agent

Cudmore’s conclusions based on Ms. Knight’s statement. The court reasoned that

while it would have been better to include only the facts the witness presented, Agent

Cudmore did not intend to “embellish upon the information provided by Ms. Knight,”

but instead, used his experience as a law enforcement officer to clarify Ms. Knight’s

statements. The court noted the discrepancies between Ms. Knight’s statements

regarding the shotgun and the affidavit could be attributed to Ms. Knight’s difficulty

in describing what she saw.

      Defendant asserts the district court erred in crediting Agent Cudmore’s

representations in the affidavit regarding the shotgun because Ms. Knight’s

testimony conflicted with the information in the affidavit and with Agent Cudmore’s

testimony. As noted above, at the Franks hearing Ms. Knight maintained she did not

tell Agent Cudmore she saw a shotgun, but instead, testified she saw what she

assumed was a shotgun. Agent Cudmore, however, testified Ms. Knight told him she

saw a shotgun, “like the kind on T.V.” On appeal, our role is not to reevaluate the

facts, and “‘where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.’” United States v. Colonna, 360

F.3d 1169, 1175 (10th Cir. 2004) (quoting Anderson v. Bessemer City, 470 U.S. 564,

573 (1985)). Moreover, in a motion to suppress, “‘the credibility of witnesses, the


                                          7
weight to be given to evidence, and the reasonable inferences drawn from the

evidence fall within the province of the district court.’” Id. (quoting Higgins, 282

F.3d at 1269).

      Here, the court obviously found Agent Cudmore’s testimony credible when it

determined he did not intend to embellish the facts provided by Ms. Knight regarding

the shotgun.     The district court noted that while Ms. Knight may not have

specifically said she saw a shotgun or part of a shotgun, she was “unwavering in her

belief that she had seen the defendant carrying what she believed was a gun.” We

find no clear error in the district court’s decision to credit Agent Cudmore’s

testimony.     Accordingly, we affirm the district court’s conclusion that Agent

Cudmore’s representations in the affidavit regarding the shotgun were not

intentionally false or in reckless disregard for the truth

      Defendant also argues the district court erred because it could not have found

Agent Cudmore’s representations credible as to the shotgun while simultaneously

finding his representations about the cardboard box were either intentionally false

or in reckless disregard of the truth. This argument is foreclosed by our previous

decision in Colonna where we found no support for the proposition that if the district

court finds one or more false statements in a warrant, than all other statements must

be deemed false as well. 360 F.3d at 1175. In fact, we noted such a proposition

would be at odds with Franks, “which permits reliance on a warrant affidavit ‘when


                                           8
[the] material that is the subject of the alleged falsity or reckless disregard is set to

one side [and] there remains sufficient content in the warrant affidavit to support a

finding of probable cause.” Id. (quoting Franks, 438 U.S. at 171-72).

      Having determined the district court properly considered information about the

shotgun in the probable cause analysis, we now must consider whether the remaining

information in the affidavit was sufficient for a finding of probable cause. In

weighing the totality of the circumstances, we find the district court correctly

concluded probable cause supported issuance of the search warrant. Ms. Knight

observed Defendant, approximately ten minutes after his companion was arrested,

making several trips from his apartment to a nearby garage. Defendant’s demeanor

was described as “feverish” or “hasty. ” On one such trip he carried a long item Ms.

Knight believed was a shotgun. Also, the affidavit noted Defendant was a known

associate of Mr. Strain who had a conviction for being in possession of a pipe bomb

and was found to be in possession of over 100 firearms. This information would lead

a prudent person to believe contraband or evidence of a crime would be found in

Defendant’s garage or his home. See Wicks, 995 F.2d at 972-73. Therefore, we find

no error in the district court’s probable cause determination.

                                           II.

      Defendant also argues the evidence was insufficient to support the jury’s guilty

verdict. Sufficiency of the evidence is a legal issue we review de novo. United


                                           9
States v. Lewis, 240 F.3d 866, 870 (10th Cir. 2001). On appeal, we “ask only

whether taking the evidence . . . together with the reasonable inferences to be drawn

therefrom–in the light most favorable to the government, a reasonable jury could find

the defendant guilty beyond a reasonable doubt.” United States v. Hanzlicek, 187

F.3d 1228, 1239 (10th Cir. 1999). The jury convicted Defendant of being a fugitive

from justice in possession of a firearm in violation of 18 U.S.C. § 922(g)(2).

Defendant alleges the Government did not prove he fled Minnesota with the specific

intent to avoid prosecution–an essential element of the crime.

      A fugitive from justice is defined as “any person who has fled from any state

to avoid prosecution for a crime or to avoid giving testimony in any criminal

proceeding.” 18 U.S.C. § 921(a)(15). At trial, the evidence showed Defendant was

well aware of the charges pending against him in Minnesota. He had appeared for

several hearings and appeared for the September 11, 2001 trial. The court told

Defendant in person his trial was rescheduled for November 6th, and several notices

were sent regarding the October 23rd hearing. Some of the notices were returned in

different envelopes than those in which they had been sent in, and the words:

“Refusal for cause without dishonor and without recourse to me” were written across

the notices. At least one such notice was returned in an envelope with Defendant’s

return address in the top left corner of the envelope. Although when Defendant left

Minnesota is unclear, we conclude the jury could have reasonably inferred from this


                                         10
evidence that Defendant left Minnesota with the intent to avoid prosecution for the

pending charges. See United States v. Magleby, 241 F.3d 1306, 1312 (10th Cir.

2001) (“In making its determination regarding a defendant’s intent, a jury is

permitted to draw inferences of subjective intent from a defendant’s objective acts.”)

(internal citations and quotations omitted); see also United States v. Rolle, 2001 WL

1141390, at *2 (10th Cir. September 27, 2001) (unpublished) (finding sufficient

evidence for conviction under 18 U.S.C. § 922 (g)(2) where defendant failed to

appear on a charge of driving under the influence in Montana, was aware there was

a warrant for his arrest, and was subsequently found in Wyoming).

                                         III.

      Defendant lastly argues the district court erred in finding a nexus between him

and three handguns. Defendant argues insufficient evidence exists to show a nexus

between himself and the handguns because the guns were found in a garage he shared

with his wife and Mr. Strain. Specifically, Defendant argues the government failed

to present evidence that ruled out Strain or his wife as the rightful possessors of the

three handguns. Contrary to Defendant’s argument, nothing in our case law requires

the government to rule out joint occupants as possessors, instead, the government

must show defendant had access to the firearms and knowledge of the firearms.

      “Possession” can be either actual or constructive under § 922(g)(1). United

States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). A person has constructive


                                          11
possession when he or she “knowingly holds ownership, dominion, or control over

the object and the premises where it is found.”             Id.   United States v.

Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999). Knowledge, dominion, and

control are properly inferred if the defendant has “exclusive possession of the

premises.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002) (quoting

Mills, 29 F.3d at 549). If more than one person occupies the premises, however, no

such inference is allowed. “In cases of joint occupancy, where the government seeks

to prove constructive possession by circumstantial evidence, it must present evidence

to show some connection or nexus between the defendant and the firearm or other

contraband.” Mills, 29 F.3d at 549. Furthermore, in order to sustain a conviction

based on constructive possession in joint occupancy cases, the government must

show “evidence supporting at least a plausible inference that the defendant had

knowledge of and access to the weapon or contraband.” United States v. Hien Van

Tieu, 279 F.3d 917, 922 (10th Cir. 2002) (quoting United States v. Heckard, 238

F.3d 1222, 1228 (10th Cir. 2001)). Thus, in the joint occupancy context, “knowledge

and access are required to prove that the defendant knowingly held the power to

exercise dominion and control over the firearm.” Colonna, 360 F.3d at 1179 (citing

United States v. Gorman, 312 F.3d 1159, 1164 (10th Cir. 2002)).

      In ruling on Defendant’s Rule 29 motion for acquittal, the district court found

sufficient nexus between Defendant and the handguns noting Defendant had access


                                         12
to the garage where the guns were found, and Ms. Knight’s eye witness testimony

linked Defendant to the guns. As the district court noted, Defendant was seen

carrying “several black boxes, consistent with handgun cases to the garage.” 2 One

day after Defendant was seen carrying the boxes, three boxes containing the

handguns were found in the garage. A careful review of the record shows that these

were the only small dark colored boxes found in the garage. Viewing this evidence

in the light most favorable to the government, we find these facts support an

inference that Defendant had “knowledge” of and “access” to the firearms, the two

requirements for a finding of possession in the joint occupancy context.

Accordingly, there was sufficient evidence for a reasonable jury to find Defendant

guilty of possessing the three handguns.




      2
          Defendant claims the physical characteristics of the evidence conflict
with Ms. Knight’s testimony. Defendant cites several trial exhibits in arguing one
of the handgun cases was maroon, not black, and the boxes found in the garage
were not shaped like shoe boxes. We have no way to verify if one of the gun
cases was maroon or the shape of the boxes because Defendant failed to designate
as part of the record the photographic evidence he refers to in his brief. See 10th
Cir. R. 10.3 (D)(4) (“[T]rial exhibits . . . must be included [in the record on
appeal] when they are relevant to an issue raised on appeal and are referred to in
the brief.”). Even assuming Defendant’s claim that one of the gun cases was
maroon and boxes were flatter and wider than shoe boxes, we find no error in the
district court’s determination that a sufficient nexus existed between Defendant
and the handguns. Maroon and black are both dark colors that could easily be
mistaken for each other at a distance and even if we accept Defendant’s
description of the boxes, the boxes are at least relatively the size and shape
(rectangular) as a shoe box.

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For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                 Entered for the Court,



                                 Bobby R. Baldock
                                 Circuit Judge




                                  14
