                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  MAR 27 2003
                                        TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                         Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                  No. 02-6280
                                                        (D. Ct. No. CR-01-202-R)
 JIMMY EUGENE RHODES,                                          (W.D. Okla.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, HOLLOWAY, and KELLY, Circuit Judges.


       In this appeal, defendant-appellant Jimmy Eugene Rhodes challenges: (1) the

district court’s denial of his motion to suppress; (2) the sufficiency of the evidence

supporting his five counts of conviction; and (3) the constitutionality of 18 U.S.C.

§ 922(g)(1) under the Second Amendment. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and AFFIRM.




       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
                                       I. Background

       A.     The Traffic Stop1

       On July 24, 2001, at approximately 1:45 A.M., Officer Robert Ellyson of the

Oklahoma City Police Department observed Defendant Rhodes driving a black Chevrolet

Camaro at the intersection of 36th and Lindsey in southeast Oklahoma City, Oklahoma.

The neighborhood is a mixed residential and business area, known for its high crime rate,

specifically its high incidence of auto theft and burglary, home burglaries, rapes, and

robberies. As of the time of these events, Officer Ellyson had patrolled the area in

question for his entire career of more than eight years.

       During their initial encounter, Rhodes was traveling westbound on 36th Street.

Officer Ellyson passed Rhodes and observed that both Rhodes and his male passenger

had “startled look[s] on their face[s],” and that Rhodes “grabbed the steering wheel, like

in a tense motion.” Following this initial encounter, Rhodes made the first available right

turn, heading north into a residential neighborhood.

       Officer Ellyson continued his observation of Rhodes’ vehicle as it traveled north

on Lindsey.2 When Rhodes turned eastbound on 33rd Street, Ellyson decided to turn

westbound on 33rd Street. Officer Ellyson testified that Rhodes’ vehicle was traveling



       The evidence seized as a result of the traffic stop relates to Rhodes’ convictions
       1

under Counts 1 and 2 of the indictment.
       2
         Officer Ellyson was also traveling northbound, on a parallel street a few blocks
east of Lindsey.

                                            -2-
“very slow for normal traffic in that area.” As the two cars passed, Officer Ellyson shined

a flashlight into Rhodes’ vehicle and observed that both Rhodes and his passenger

appeared “startled” and “nervous.” Both individuals stared straight ahead rather than

making eye contact with Officer Ellyson.

       At this point, Officer Ellyson turned around in a driveway.3 Rhodes then pulled

over “real quick.” Officer Ellyson approached Rhodes’ vehicle from behind, at which

point, Rhodes pulled away, again heading eastbound on Lindsey. A few moments later,

Rhodes turned southbound. At this point, Rhodes had “made a full circle through [the]

neighborhood.”

       Officer Ellyson found Rhodes’ behavior “very suspicious.” Specifically, Officer

Ellyson testified, “We have a lot of auto burglaries there, especially that time of night,

and I was concerned that they had committed a crime or were about to.” Accordingly,

Officer Ellyson decided to run a computer check on the black Camaro to see if it had been

reported stolen. Because such checks require an unpredictable amount of time to

complete, Officer Ellyson also initiated a “suspicious vehicle stop.”

       After stopping Rhodes, Officer Ellyson approached the vehicle and inquired about

Rhodes’ destination. Rhodes responded, “I’m looking for a motel.” When Officer

Ellyson pointed out that they were in a residential area and that there were no motels close

by, Rhodes responded, “Oh, I’m looking for a friend’s house.” At this point, Officer


       3
           Officer Ellyson did not turn on his overhead lights.

                                              -3-
Ellyson asked Rhodes for his driver’s license.

       Following a computer check of Rhodes’ license, Officer Ellyson received

information that there was an outstanding arrest warrant for Rhodes. Based on this

information, Officer Ellyson placed Rhodes under arrest. As Rhodes exited the vehicle,

Officer Treat, another officer on the scene, observed a magazine containing six rounds of

9 mm hollow-point ammunition on the driver-side seat of the vehicle. The officers later

seized the ammunition after impounding Rhodes’ vehicle.

       After taking Rhodes into custody, Officer Ellyson returned to the point where he

had observed Rhodes pulled over to the curb. At that location, Officer Ellyson found a 9

mm pistol on the grass.

       Corporal John Jackson processed Rhodes at the Oklahoma County Jail. During

processing, Corporal Jackson saw a bag containing a white powdery substance fall from

Rhodes’ waistband. The substance was later identified as methamphetamine.

       B.     The Search of Rhodes’ Trailer4

       On August 30, 2001, Shad McFarlane’s residence in Choctaw, Oklahoma was

burglarized and a number of firearms were stolen. On September 19, 2001, the Choctaw

Police Department executed a search warrant for Rhodes’ trailer at Shady Side Trailer

Park in Choctaw, Oklahoma. During the search, the Choctaw Police recovered: (1) an 8



       4
        The evidence seized as a result of the search of Rhodes’ trailer relates to Rhodes’
convictions under Counts 3, 4, and 5 of the indictment. See Part I.C., infra.

                                           -4-
mm DOU bolt-action rifle; (2) a 12-gauge Remington pump shotgun; (3) various types of

ammunition; (4) a used syringe that later testified positive for methamphetamine use; (5)

a pyrex dish containing a spoon with burnt residue; and (6) lab equipment, chemicals, and

other materials used in manufacturing methamphetamines, including muriatic acid,

tubing, an HCL generator cap, rock salt, and acetone.

       C.     The District Court Proceedings

       On February 6, 2002, a grand jury in the Western District of Oklahoma returned a

five-count superseding indictment, charging Rhodes with the following: (1) possession

of a 9 mm semiautomatic pistol5 and six rounds of 9 mm hollow-point ammunition, in

violation of 18 U.S.C. § 922(g)(1) (Count 1); (2) possession of a mixture containing a

detectable amount of methamphetamine, in violation of 21 U.S.C. § 844(a) (Count 2); (3)

possession of an 8 mm DOU bolt-action rifle, a 12-gauge Remington pump shotgun, a 12-

gauge Uzumlu over/under shotgun, eight rounds of 12-gauge shotgun shells, five rounds

of 12-gauge shotgun shells with rifled slugs, eighty-three rounds of .40 caliber

ammunition, and five rounds of 7.9 mm ammunition, in violation of 18 U.S.C.

§ 922(g)(1) (Count 3); (4) knowing possession of stolen firearms,6 in violation of 18

U.S.C. § 922(j) (Count 4); and (5) maintaining an establishment for the purpose of



      The jury’s conviction on Count 1 was based solely on the possession of the
       5

ammunition, not the pistol.

       The stolen firearms included the 8 mm DOU bolt-action rifle, the 12-gauge
       6

Remington pump shotgun, and the 12-gauge Uzumlu over/under shotgun.

                                           -5-
manufacturing, distributing, and using methamphetamine, in violation of 21 U.S.C.

§ 856(a)(1) (Count 5).

       On April 10, 2002, a jury convicted Rhodes on all five counts. This appeal

followed.

                                       II. Discussion

       A.     Whether Officer Ellyson’s Stop of Rhodes’ Vehicle Was Unreasonable

              Under the Fourth Amendment.

       Rhodes first argues that Officer Ellyson’s initial detention of Rhodes was

unreasonable under the Fourth Amendment, and that the ammunition and pistol

supporting Count 1 and the methamphetamine supporting Count 2 were therefore

admitted in contravention of Wong Sun v. United States, 371 U.S. 471 (1963). We

disagree.

              1.     Standard of review

       In reviewing the district court’s denial of Rhodes’ suppression motion, “we review

the district court’s factual findings for clear error, viewing the evidence in a light most

favorable to the government and considering the totality of the circumstances.” United

States v. Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001). “We review de novo whether

those facts provided sufficient justification for a detention.” Id.

              2.     Analysis

       “A traffic stop, however brief, constitutes a seizure within the meaning of the


                                             -6-
Fourth Amendment, and is therefore only constitutional if it is ‘reasonable.’” Id. at 1286

(citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). In considering the reasonableness

of a routine traffic stop, we apply the principles set forth in Terry v. Ohio, 392 U.S. 1

(1968). United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc).

Accordingly, we must determine whether the traffic stop was based on a reasonable,

articulable suspicion of criminal activity. United States v. Harris, 313 F.3d 1228, 1234

(10th Cir. 2002). In reviewing reasonable-suspicion determinations, we must consider the

“‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a

‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v.

Arvizu, 534 U.S. 266, 273 (2002) (emphasis added). Reasonable suspicion may exist,

even if “each of the[] factors alone is susceptible to an innocent explanation.” Id. at 277.

In other words, “[a] determination that reasonable suspicion exists . . . need not rule out

the possibility of innocent conduct.” Id.

       In this case, Officer Ellyson possessed reasonable, articulable suspicion based on

numerous observations. First, when Officer Ellyson initially passed Rhodes’ vehicle,

Rhodes and his passenger appeared nervous. Second, Officer Ellyson knew that the

neighborhood had a high rate of auto theft and burglary, especially at night.7 Third,

Rhodes was driving a Chevrolet Camaro, and Officer Ellyson knew, based on his




       7
           The incident in question took place at approximately 1:45 A.M.

                                            -7-
experience,8 that such vehicles were commonly stolen in the area. Fourth, Rhodes was

traveling at an unusually slow rate of speed. Fifth, Officer Ellyson observed Rhodes

quickly turn after their initial encounter, suggesting flight, and a few minutes later,

Rhodes quickly pulled over to the curb after Officer Ellyson turned around in a driveway.

Sixth, during his surveillance, Officer Ellyson observed Rhodes make a complete circle

through the neighborhood. Finally, when Officer Ellyson again encountered Rhodes, he

shined a light into the interior of Rhodes’ vehicle. In response, both Rhodes and his

passenger stared straight ahead, refusing to make eye contact with Officer Ellyson, and

both appeared nervous.

       Based on these facts, we find that Officer Ellyson had reasonable, articulable

suspicion of criminal activity.9 Accordingly, Officer Ellyson was justified in stopping

Rhodes’ vehicle. See Harris, 313 F.3d at 1234.

              3.     Conclusion

       Because Officer Ellyson’s stop was lawful under the Fourth Amendment, the fruits




       8
         Officer Ellyson had eight years of law-enforcement experience in this particular
area of southeast Oklahoma City.
       9
          Cf. United States v. Miller, 186 F.Supp.2d 553, 556 (E.D.Pa. 2002) (finding
reasonable suspicion based on the following facts: “1) defendant was driving his vehicle
late at night; 2) defendant circled the block three or four times; 3) the area where
defendant circled the block was known to the officers as one where there was drug
activity; 4) defendant was driving a rented vehicle with out of state tags; and 5) the
officers had four and five years experience as Philadelphia police officers.”).

                                             -8-
at issue – the pistol,10 ammunition, and methamphetamine – were not borne of a

poisonous tree. Accordingly, Rhodes’ Wong Sun argument fails.

       B.     Whether Sufficient Evidence Supported Rhodes’ Five Convictions.

       Rhodes next contends that the evidence presented at trial was insufficient to

support his convictions. We disagree.

              1.     Standard of review

       “Evidence is sufficient to support a conviction if the evidence and reasonable

inferences drawn therefrom, viewed in the light most favorable to the government, would

allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United

States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). “We will not overturn a jury’s

finding unless no reasonable juror could have reached the disputed verdict.” Id. In

reviewing the jury’s verdict, we do not consider the credibility of witnesses or weigh

conflicting evidence. United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997).

              2.     Counts 1 and 3: Possession of six rounds of 9 mm hollow-point

                     ammunition (Count 1) and an 8 mm DOU bolt-action rifle, a 12-

                     gauge Remington pump shotgun, and a 12-gauge Uzumlu over/under

                     shotgun (Count 3)11


        The jury based its conviction under Count 1 on the ammunition, not the pistol.
       10

Thus, Rhodes’ argument regarding the pistol is moot.
       11
         Count 3 further charged Rhodes with possession of eight rounds of 12-gauge
shotgun shells, five rounds of 12-gauge shotgun shells with rifled slugs, eighty-three
rounds of .40 caliber ammunition, and five rounds of 7.9 mm ammunition.

                                           -9-
       To support a conviction under section 922(g)(1), the prosecution must prove the

following elements: “(1) the defendant was previously convicted of a felony; (2) the

defendant thereafter knowingly possessed a firearm; and (3) the possession was in or

affecting interstate commerce.” United States v. Gorman, 312 F.3d 1159, 1163-64 (10th

Cir. 2002) (quoting United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997)).

       Rhodes’ challenge here, for both Counts 1 and 3, is limited to the evidence relating

to the second element’s “knowing possession” requirement. In considering the evidence

necessary to satisfy this requirement we have previously held that “[t]he Government may

meet its burden of proof [under § 922(g)(1)] by showing constructive possession; actual

possession is not required.” United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir.

2002). “To establish constructive possession, the Government must show the defendant

‘knowingly holds the power to exercise dominion or control over the firearm.’” Id.

(quoting United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir. 2001)).

                     a.     Count 1

       In this case, Officer Treat observed the ammunition clip on Rhodes’ seat, just as

Rhodes exited the vehicle.12 Further, Rhodes’ brother-in-law, Cody Lowry, testified that

Rhodes had told him that the 9 mm ammunition clip was “either under the seat or in the



       12
          See Gorman, 312 F.3d at 1164 (“[S]ufficient nexus between [defendant] and the
firearm was established by testimony describing the location of the gun on the driver’s
side of the vehicle and demonstrating it was visible and retrievable from the driver’s seat,
where [defendant] was sitting immediately prior to the search.”).

                                           - 10 -
console” at the time of the traffic stop. Thus, under the constructive possession standard

articulated above, sufficient evidence supported the jury’s finding that Rhodes knowingly

possessed the 9 mm ammunition in Count 1.

                     b.      Count 3

       Rhodes similarly asserts that the evidence presented at trial was inadequate to

support the “knowing possession” element of his conviction on Count 3. This argument

is without merit.

       The Choctaw Police discovered the 8 mm DUO bolt-action rifle, the 12-gauge

Remington pump shotgun, and the various types of ammunition while executing a search

warrant for Rhodes’ trailer home. Contrary to Rhodes’ contention, sufficient evidence

connected Rhodes to the trailer, including the following: (1) Rhodes used his own key to

unlock the trailer door for the officers executing the search warrant; and (2) testimony

from three witnesses, all of whom testified that Rhodes lived in the trailer until at least

two or three days prior to the day the Choctaw Police executed the search warrant.

Further, Lowry testified that Rhodes had offered to sell him the firearms in question in

September 2001. Regarding the 12-gauge Uzumlu over/under shotgun, three witnesses

testified to Rhodes’ possession of the firearm: Lowry, Joey Johnson, and Bob Johnson.

                     c.      Conclusion

       Based on the above, we conclude that sufficient evidence supported the jury’s

convictions on Counts 1 and 3.


                                            - 11 -
               3.     Count 2: Possession of methamphetamine

      Sufficient evidence also supported Rhodes’ conviction under 21 U.S.C. § 844(a).

Section 844(a) provides: “It shall be unlawful for any person knowingly or intentionally

to possess a controlled substance.” 21 U.S.C. § 844(a).

      Corporal John Jackson testified that he witnessed a small plastic packet containing

a white powdery substance fall from Rhodes’ pants while Rhodes was being processed at

the Oklahoma County Jail.13 Oklahoma City Forensic Chemist Matthew Scott testified

that the substance was methamphetamine. Thus, sufficient evidence supported Rhodes’

conviction under Count 2.

               4.     Count 4: Possession of stolen firearms

      The firearms supporting Count 3 also supported Count 4: (1) an 8 mm DUO bolt-

action rifle; (2) a 12-gauge Remington pump shotgun; and (3) a 12-gauge Uzumlu

over/under shotgun.14 Lowry testified that Rhodes admitted to him that he had

      13
         Lowry’s testimony corroborated Corporal Jackson’s testimony. Lowry testified
as follows:

      [Rhodes] said that . . . he also had some cocaine in his possession when they
      took him down to – or crank. I think it was cocaine.

      ....

      [Rhodes] told me, when they took him downtown and put him in a holding
      cell, he opened up the bag of drugs and spread them out across the cell in
      the holding cell where he wouldn’t get caught with them.

      14
           Concerning the possession element of Count 4, see section II.B.2.b., supra.

                                            - 12 -
burglarized the residence of Shad McFarlane and stolen the weapons in question.

Accordingly, sufficient evidence supported the jury’s conviction on Count 4.

              5.     Count 5

       21 U.S.C. § 856(a)(1) makes it unlawful to “knowingly open or maintain any place

for the purpose of manufacturing, distributing, or using any controlled substance.”

Sufficient evidence supported Rhodes’ conviction under section 856(a)(1).

       First, the Choctaw police seized numerous items necessary for the production and

use of methamphetamine from Rhodes’ trailer. Second, Candice Bird, Rhodes’ live-in

girlfriend, and Cody Lowry, Rhodes’ brother-in-law, both testified to seeing lab

equipment and other materials necessary for methamphetamine production in Rhodes’

trailer.15 Third, Bird had actually witnessed Rhodes producing methamphetamine in his

trailer. Fourth, Bird and Lowry both testified that Rhodes had admitted to manufacturing

a controlled substance in his trailer. Finally, both Bird and Lowry had observed Rhodes

using methamphetamine in his trailer. Thus, sufficient evidence supported Rhodes’

conviction under Count 5.

       C.     Whether 18 U.S.C. § 922(g)(1) Is Unconstitutional Under the Second

              Amendment.

       In United States v. Baer, we upheld the constitutionality of 18 U.S.C. § 922(g)(1)



       15
         Bird testified that she personally had obtained for Rhodes “speed” pills
necessary for the production of methamphetamine.

                                          - 13 -
under the Second Amendment. 235 F.3d 561, 564 (10th Cir. 2000). Under United States

v. Killion, this three-judge panel may not reconsider the question. 7 F.3d 927, 930 (10th

Cir. 1993) (“We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.”).

                                     III. Conclusion

       Based on the foregoing, we AFFIRM.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




                                          - 14 -
