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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12660
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:14-cr-00074-LC-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

AYLA MARIE MENDOZA,
a.k.a. Ayla Cates,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (September 30, 2016)

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Defendant Ayla Mendoza appeals her conviction following her conditional

guilty plea to aiding and abetting the possession of firearms by an alien unlawfully

in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2) and 2.

Defendant’s conditional plea permitted her to appeal the issues raised in this

appeal: (1) the district court’s denial of her motion to suppress evidence seized

from her home and her subsequent statements made to law enforcement and (2) the

district court’s pre-trial ruling denying Defendant’s request for a jury instruction

defining the term “willfulness.” After careful review, we affirm the district court’s

ruling on both the suppression motion and the requested instruction.

I. BACKGROUND 1

       On August 6, 2014, the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF”) received an anonymous tip that an illegal alien named Luis

Mendoza (“Luis”) was in possession of firearms. The tip included photos from

Defendant’s Facebook account, which showed Luis posing with a Smith & Wesson

M&P rifle and a shotgun. ATF agents later confirmed that Defendant had

purchased those firearms at a nearby Walmart.

       After confirming the anonymous tip, ATF Special Agent Brent Carrier and

two other detectives, Detective Kilburn and Detective Conkell, went to


1
   The following facts are taken from the testimony at the suppression hearing, viewed in the
light most favorable to the Government. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.
2008).
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Defendant’s residence to conduct an interview. When Defendant answered the

door, Agent Carrier identified himself and explained that he needed to speak with

her about an ongoing investigation. Defendant invited Agent Carrier and Detective

Kilburn inside.

      Once inside the residence, Agent Carrier told Defendant that the ATF

Pensacola Office had received an anonymous tip that Luis was in possession of

firearms. Defendant told Agent Carrier and the detective that she and Luis were

married and resided together at the residence. She knew that Luis was residing in

the United States illegally, and she admitted that she had purchased two firearms

from Walmart. She told Agent Carrier that the firearms were inside the residence.

      Defendant also told Agent Carrier that she had purchased the firearms

because Luis could not do so. Given Defendant’s admission that she had made a

straw purchase as to these firearms, Agent Carrier informed Defendant that the

agent could not leave the residence without the firearms. Agent Carrier asked

Defendant where the firearms were located, and Defendant escorted him to the

back bedroom. Defendant then informed Agent Carrier that the firearms were on

the top shelf of the walk-in closet. She also told Agent Carrier that there was

ammunition in the nightstand. After obtaining Defendant’s permission, Agent

Carrier searched the rest of the bedroom for firearms and ammunition, but did not




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open anything that was closed. He was not able to find the ammunition because

the nightstand was locked and only Luis had the key.

      At this point, Defendant called Luis. Agent Carrier told Defendant to inform

Luis that he was not arresting anyone that day, and that he just wanted to speak to

Luis. When Defendant handed Agent Carrier the phone, he told Luis that he was

taking the firearms because they were part of a crime. Luis said that he had

already told Defendant to hand over the firearms.

      Agent Carrier told Luis that he would come back to retrieve the ammunition

from the nightstand when Luis returned home. Agent Carrier never told Defendant

that she would not be charged if she handed over the firearms, nor did he ever

show her his gun. When Defendant later called to inform Agent Carrier that Luis

had returned home, Agent Carrier and the two detectives went back to the

residence. When they arrived, Luis was outside and he invited Agent Carrier and

the detectives inside.

      Agent Carrier then interviewed Luis and Defendant. During the interview,

Luis told Agent Carrier that he had illegally entered the United States ten years

earlier. Defendant also stated that she had purchased the firearms for the family.

At the conclusion of the interview, Luis and Agent Carrier retrieved the

ammunition from the nightstand. Around the same time, Agent Carrier told Luis

and Defendant that he did not know if they would be charged. He also told Luis

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and Defendant that he had concluded his investigation, and that the United States

Attorney’s Office would make the ultimate determination about whether or not to

prosecute.

         Shortly after this visit to the residence, Detective Kilburn again contacted

Defendant and told her that he needed to return in order to retrieve Luis’s passport

and the shell casings that Detective Kilburn and Agent Carrier had seen in the

backyard during their visit. When Detective Kilburn arrived at the residence, she

gave him Luis’s passport as well as permission to retrieve the shell casings.

         A federal grand jury subsequently returned an indictment charging

Defendant with aiding and abetting an illegal alien, namely Luis, to knowingly

possess a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2), and 2.

         Before trial, Defendant moved to suppress the firearms seized from her

home and the statements she made to law enforcement because she argued that her

consent to the warrantless search of her home was not knowing and voluntary. She

further argued that Agent Carrier never advised her of her Miranda2 rights prior to

or after her statements to law enforcement. The district court denied the motion,

finding that based on the credibility of the witnesses, Defendant’s surrender of the

firearms and the entry into the home were voluntary and consensual, and

Defendant’s statements were not coerced in any way.

2
    Miranda v. Arizona, 384 U.S. 436 (1966).

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       In anticipation of trial, both the Government and Defendant requested that

the district court settle their dispute as to which instructions should be given to the

jury. At bottom, the dispute focused on whether the Government had to prove that,

in aiding and abetting her husband (who, as an illegal alien, could not legally

possess a firearm), Defendant acted willfully, as opposed to just knowingly. The

Government’s position was that it did not have to prove willfulness, but only that

Defendant acted knowingly.

       Specifically of pertinence to this appeal, Defendant requested that the district

court give the standard instructions explaining aiding and abetting and defining

both the terms “knowingly” and “willfully,” as well as a special instruction

concerning the good faith defense. 3 The Government concurred that the pattern

instruction on aiding and abetting should be given. But it disagreed that the good

faith defense instruction should be given. And, of significance to the narrow issue

on appeal here, the Government contended that the district court should decline to

instruct the jury on the term “willfulness,” but instead should define for them only

the term “knowingly.”




3
  These instructions are numbered respectively: Eleventh Circuit Pattern Jury Instructions
(Criminal Cases) (2010), Special Instruction 7 (“Aiding and Abetting”); Basic Instruction 9.1A
(“On or About; Knowingly; Willfully-Generally”) or 9.1B (“On or About; Knowingly: Willfully-
Intentional Violation of a Known Legal Duty”); Special Instruction 9 (“Good Faith Defense to
Willfulness”).
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      The district court agreed with the position taken by the Government,

meaning that it ruled that it would decline to define for the jury the term

“willfulness” or to instruct them that Defendant had a good-faith defense to the

charge. Immediately after the district court’s ruling, Defendant entered a plea of

guilty to aiding and abetting an illegal alien to knowingly possess a firearm, but

conditioned that plea on her ability to appeal the district court’s adverse rulings on

the instruction issue and the suppression motion. The district court subsequently

sentenced Defendant to one day of probation with credit for time served.

Defendant now appeals.

II. DISCUSSION

      A.     Motion to Suppress

      We review a district court’s ruling on a motion to suppress as a mixed

question of law and fact, reviewing factual findings for clear error and the district

court’s application of the law to those facts de novo. United States v. Timmann,

741 F.3d 1170, 1177 (11th Cir. 2013). We construe the facts in the light most

favorable to the prevailing party, which in this case was the Government. United

States v. Sparks, 806 F.3d 1323, 1334 (11th Cir. 2015). We also defer to the

district court’s credibility determinations, unless the determination is “contrary to

the laws of nature, or is so inconsistent or improbable on its face that no reasonable




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factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749

(11th Cir. 2002).

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. “Of all the places that can

be searched by the police, one’s home is the most sacrosanct, and receives the

greatest Fourth Amendment protection.” United States v. McGough, 412 F.3d

1232, 1236 (11th Cir. 2005).

      The general prohibition against the warrantless search of a person’s home is

not applicable when a person consents to a search of the home. See Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990). Whether the defendant voluntarily

consented to a search is determined by the totality of the circumstances. United

States v. Drayton, 536 U.S. 194, 206–07 (2002); United States v. Blake, 888 F.2d

795, 798 (11th Cir. 1989). The burden is on the Government to demonstrate that

consent was voluntarily given and was not the product of duress or coercion.

United States v. Yeary, 740 F.3d 569, 581 (11th Cir. 2014). “A district court’s

determination that consent was voluntary is a finding of fact, that will not be

disturbed on appeal absent clear error.” Id. (quotations omitted).

      Defendant argues that Agent Carrier entered her home without a warrant,

and that her agreement to turn over the firearms was not voluntary. We conclude

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that the district court did not clearly err in finding that Defendant voluntarily

consented to the entry into her home and the seizure of the firearms. Agent Carrier

testified that Defendant invited him and Detective Kilburn into her home and

cooperated with their investigation and search efforts. She led Agent Carrier to the

firearms in the back bedroom, permitted Agent Carrier to search the rest of the

bedroom for firearms, and called Agent Carrier when Luis returned home with the

key to unlock the nightstand where the ammunition was located. See Ramirez-

Chilel, 289 F.3d at 752 (indicating that the extent of an individual’s cooperation

with law enforcement is a factor to consider when determining whether the

individual’s consent was coerced).

      Defendant asserts that her consent was not voluntary because she was given

two choices: cooperate or go to jail. However, both she and Agent Carrier

described both of his visits to her home as friendly and/or casual encounters.

Moreover, Agent Carrier and the detectives identified themselves when they

arrived at Defendant’s home and explained the purpose of their visit. Although

Agent Carrier and the two detectives were armed, none of them brandished their

guns nor were their guns visible. And, while Defendant testified that she would

not have consented if she had known she did not have to, this knowledge was not

necessary for the Government to meet its burden of showing that Defendant’s

consent was voluntary. See United States v. Zapata, 180 F.3d 1237, 1242 (11th

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Cir. 1999) (stating that the failure to inform the defendant of the right to refuse

consent to a search does not invalidate otherwise valid consent).

      The district court also determined that Agent Carrier and Detective

Kilburn’s testimony that Defendant consented was more credible than Defendant’s

testimony that her consent was not voluntarily given. We defer to that credibility

determination because Defendant has not shown that the district court’s findings

were “contrary to the laws of nature, or [are] so inconsistent or improbable on

[their] face that no reasonable factfinder could accept [them].” Ramirez-Chilel,

289 F.3d at 749.

      The district court also did not err by denying Defendant’s motion to suppress

the statements she made to Agent Carrier and the detectives. The district court

found Agent Carrier’s testimony—that he did not tell Defendant that she would not

be charged if she cooperated—more credible than Defendant’s testimony to the

contrary. Because Defendant has not shown that this factual finding is so

inconsistent that no reasonable factfinder would accept it, we defer to that

determination. See Ramirez-Chilel, 289 F.3d at 749. We also reject Defendant’s

argument that her statements based on the purported illegally-seized firearms

should have been suppressed as fruit of the poisonous tree. Given that the initial

search of the home and seizure of the firearms were not unlawful, Defendant’s

later statement cannot be fruit of the poisonous tree. See United States v. Lopez-

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Garcia, 565 F.3d 1306, 1315 (11th Cir. 2009) (concluding that defendant’s

argument that statements he made after he was initially stopped and arrested were

not fruit of the poisonous tree because his initial seizure and arrest were not

unconstitutional). Considering the totality of the circumstances, the district court

did not clearly err in finding that Defendant’s acquiescence to the seizure of the

firearms and subsequent statements to law enforcement were voluntary, and thus,

the district court did not err in denying her motion to suppress.

      B.     Jury Instructions

      Defendant also argues that the district court erred in its pre-trial ruling

denying her request that the jury be instructed as to the definition of willfulness.

Because Defendant entered a conditional plea of guilty reserving her right to

challenge the court’s ruling, we consider that ruling, as much as we can, in the

same way as if Defendant had proceeded to trial and the district court had

instructed a jury consistent with the pre-trial ruling. We review a district court’s

denial of a requested jury instruction for abuse of discretion. United States v.

Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999). The district court’s failure to give a

requested jury instruction only constitutes reversible error if the instruction: “(1)

was correct, (2) was not substantially covered by a charge actually given, and (3)

dealt with some point in the trial so important that failure to give the requested




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instruction seriously impaired the defendant’s ability to conduct his defense.”

United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007).

      As noted, Defendant entered a conditional plea of guilty to aiding and

abetting an illegal alien to knowingly possess firearms, in violation of 18 U.S.C.

§§ 922(g)(5)(A), 924(a)(2) and 2. Under § 922(g)(5)(A), it is a crime for an illegal

alien “to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported in interstate or foreign

commerce.” 18 U.S.C. § 922(g)(5). The penalty section of the chapter provides

that “[w]hoever knowingly violates” various subsections of section 922, including

subsection (g), shall be fined as provided in this title, imprisoned not more than 10

years, or both. 18 U.S.C. § 924(a)(2) (emphasis added).

      As to 18 U.S.C. § 2, which sets out the offense of aiding and abetting, the

latter provides:

      (a) Whoever commits an offense against the United States or aids,
          abets, counsels, commands, induces or procures its commission, is
          punishable as a principal.

      (b) Whoever willfully causes an act to be done which if directly
          performed by him or another would be an offense against the
          United States, is punishable as a principal.

(emphasis added). The indictment mimicked the language set out in § 2(a); that is,

it charged Defendant with aiding, abetting, counseling, commanding, inducing, and

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procuring the commission of a criminal offense. The indictment did not charge

Defendant with § 2(b), which requires that Defendant “willfully cause an act to be

done,” that is, “willfully cause the offense to be committed.”

      Prior to the Defendant’s entry of a plea of guilty, and in anticipation of a

trial, the parties requested the district court to give particular instructions to the

jury. As set out above, both parties agreed that the standard aiding and abetting

instruction should be given, which of course made sense because that is the offense

Defendant was charged with. Defendant’s possession of two firearms, by itself,

violated no federal law. Rather, it was her husband’s possession of the firearms

that was unlawful, because he was in the country illegally and federal law prohibits

an illegal alien from possessing a firearm. And because Defendant provided her

husband with these firearms, her conduct in doing so rendered her vulnerable to a

potential charge of aiding and abetting her husband in committing this criminal

offense.

      The parties agreed on the need to give an aiding and abetting instruction.

The instruction reads:

      Aiding and Abetting; Agency. It’s possible to prove the Defendant
      guilty of a crime even without evidence that the Defendant personally
      performed every act charged.

      Ordinarily, any act a person can do may be done by directing another
      person, or “agent.” Or it may be done by acting with our under the
      direction of others.

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      A Defendant “aids and abets” a person if the Defendant intentionally
      joins with the person to commit a crime.

      A Defendant is criminally responsible for the acts of another person if
      the Defendant aids and abets the other person. A Defendant is also
      responsible if the Defendant willfully directs or authorizes the acts of
      an agent, employee, or other associate.

      But finding that a Defendant is criminally responsible for the acts of
      another person requires proof that the Defendant intentionally
      associated with or participated in the crime – not just proof that the
      Defendant was simply present at the scene of a crime or knew about
      it.

      In other words, you must find beyond a reasonable doubt that the
      Defendant was a willful participant and not merely a knowing
      spectator.

(emphasis added).

      Again, Defendant was charged with aiding and abetting her husband in a

violation of § 922(g)(5). The above instruction sets out the mental state that must

be proved to convict of a person of aiding and abetting a criminal offense,

generally. Specifically, the instruction explains that a defendant aids and abets the

commission of a crime if “the Defendant “intentionally joins with [another] person

to commit [the] crime.” Stated another way, to find a defendant “criminally

responsible for the acts of another person requires proof that the Defendant

intentionally associated with or participated in the crime….” In contrast, as the

instruction explains, it is insufficient to prove only that “the Defendant was simply

present” or that she happened to “[know] about” the crime. In summarizing all of

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the above, the instruction concludes by requiring the jury to find that “the

Defendant was a willful participant and not merely a knowing spectator.”

Translated, an aider and abetter is a “willful participant” if she has intentionally

joined in, associated with another person, or participated in the commission of the

crime.

         The district court agreed to give the above instruction, but Defendant asked

the court to go further and to give an additional, and wholly separate, instruction

defining the term “willfulness.” Defendant asked the court to give either the

version of the willfulness instruction that calls for proof that the accused acted with

a bad purpose, albeit without any awareness of a specific law that the conduct

violated (Basic Instruction 9.1A (2010)), or the iteration that actually calls for

awareness that one is violating a particular law (Basic Instruction 9.1B (2010)).

         The district court declined to do so, and, for several reasons, we find no

error.

         First, a § 922(g)(5) offense is not a specific intent crime. 4 A person can be

convicted, as a principal, of being a felon in possession of a firearm under


4
    Section 922(g)(5) states:

         (g) It shall be unlawful for any person—
                                                  ***
             (5) who, being an alien . . . illegally or unlawfully in the United States . . . to
             . . . possess in or affecting commerce, any firearm or ammunition.

18 U.S.C. § 922(g)(5).
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§ 922(g)(5) without any proof that the individual acted willfully; that is, without

proving that the defendant acted with a bad purpose to do something in disregard

of the law. See United States v. Jones, 143 F.3d 1417, 1419 (11th Cir. 1998) (“The

crime of being a felon in possession of a firearm is easily understood. Possession

alone is sufficient. The crime does not require any specific intent.”); United States

v. Haun, 494 F.3d 1006, 1010 (11th Cir. 2007) (indicating that “if Congress had

intended to legislate a specific intent crime, the statute would have said ‘with the

intent to.’” (quoting United States v. Meeker, 527 F.2d 12, 14 (9th Cir. 1975)).

      Second, the paragraph of 18 U.S.C. § 2 used to charge Defendant with

aiding and abetting was § 2(a), not § 2(b). And it is only § 2(b) that requires that a

defendant “willfully” do something; that is, “willfully cause[]” another to commit

an offense against the United States. Thus, § 2(a) did not require the Government

to prove that Defendant acted with any bad purpose in aiding and abetting her

husband. Rather, it only had to prove that Defendant’s husband was an illegal

alien who possessed a firearm (which is a crime) and that Defendant aided and

abetted her husband in that endeavor, which she clearly did. Indeed, Defendant

admitted that she acquired two guns for her husband and that she gave him the

guns, knowing that he was an illegal alien. By her own admission, Defendant

intentionally aided and abetted her husband, rendering her, in the parlance of the

aiding and abetting instruction, a willful participant.

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      For the above reasons, including the type of crime at issue and Defendant’s

admitted facts here, we conclude that Defendant has shown no reversible error as

to the Court’s exercise of discretion in declining to give the “willfulness” charge

requested by Defendant. Accordingly, we AFFIRM the district court’s rulings on

both the suppression motion and the jury instruction.




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