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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                      No. 15-40284                                   FILED
                                                                                  July 8, 2016

UNITED STATES OF AMERICA,                                                       Lyle W. Cayce
                                                                                     Clerk
              Plaintiff–Appellee,

v.

STEPHEN SHANE HALL,

              Defendant–Appellant.




                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CR-112


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Stephen Shane Hall challenges the district court’s
denial of his motion to suppress evidence obtained in connection with a search
warrant executed at a residence in Orange, Texas. Hall also challenges the
sufficiency of the evidence to support his convictions for (1) conspiracy with
intent to distribute methamphetamine under 21 U.S.C. § 846; (2) possession of
a controlled substance with intent to distribute methamphetamine under 21


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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U.S.C. § 841(a)(1); and (3) felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1). We AFFIRM.
              I. FACTUAL AND PROCEDURAL BACKGROUND
         Around March 2013, the Narcotics Unit of the Orange County Sheriff’s
Office     (“Narcotics   Unit”)   began   investigating      Hall   for   suspected
methamphetamine trafficking. As part of this investigation, officers with the
Narcotics Unit placed a surveillance camera outside a house in Orange, Texas,
(“the House”) where they believed Hall resided. Over the course of the
investigation, officers observed “unusual traffic” at the House that they
thought was indicative of narcotics trafficking.
         On August 31, 2013, Sergeant Shawn Wilson told Lieutenant Robert
Strause of the Narcotics Unit that he had received a tip from a confidential
informant that methamphetamine had been delivered to the House.
Lieutenant Strause immediately applied for a search warrant (“the Warrant”)
based on this information. The Warrant was signed by a Texas state judge and
executed that night.
         While executing the Warrant, officers recovered approximately 57 grams
of methamphetamine. Officers also recovered various drug paraphernalia,
including digital scales and hypodermic needles, a safe that contained
methamphetamine and money, and several firearms. They also found Hall,
along with a coconspirator, rubbing methamphetamine into the carpet of a
bedroom.
         Each of Hall’s coconspirators pled guilty, but Hall proceeded to trial.
Prior to trial, Hall filed a motion to suppress any evidence obtained in
connection with the Warrant. Following a suppression hearing, a magistrate
judge filed a report and recommendation applying the good-faith exception
under United States v. Leon, 468 U.S. 897 (1984), and recommending that the



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motion to suppress be denied. The district court adopted the magistrate judge’s
recommendation in its entirety.
      In August 2014, a jury convicted Hall of (1) conspiracy with intent to
distribute methamphetamine under 21 U.S.C. § 846; (2) possession of a
controlled substance with intent to distribute methamphetamine under 21
U.S.C. § 841(a)(1); and (3) felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1). Hall was sentenced to life imprisonment for the conspiracy and
possession charges pursuant to the mandatory minimum provided by 21 U.S.C.
§ 841(b)(1)(A) and was sentenced to 120 months on the felon in possession
charge to be served concurrently. Hall timely appealed.
                               II. DISCUSSION
      Hall raises several discrete issues on appeal. First, he challenges the
district court’s denial of his motion to suppress evidence obtained in connection
with the Warrant. Next, he challenges the sufficiency of the evidence as to each
of his three convictions.
A.    Motion to Suppress
      Hall makes multiple challenges to the district court’s application of the
good-faith exception and the subsequent denial of his motion to suppress. In
an appeal of a suppression ruling, this Court “reviews questions of law de novo
and questions of fact for clear error.” United States v. Cooke, 674 F.3d 491, 493
(5th Cir. 2012). A finding of fact is “clearly erroneous only if the court is left
with a definite and firm conviction that a mistake has been committed.” United
States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). Evidence introduced at
a suppression hearing is viewed “in the light most favorable to the prevailing
party (here, the government).” Cooke, 674 F.3d at 493. The district court’s
ruling will be upheld “if there is any reasonable view of the evidence to support
it.” Id. (quoting United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994)
(en banc)).

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      When reviewing the denial of a motion to suppress, this Court conducts
a two-step analysis. First, we must determine whether the good-faith exception
to the exclusionary rule applies. United States v. Massi, 761 F.3d 512, 525 (5th
Cir. 2014). “The good faith exception to the exclusionary rule provides that
‘evidence obtained during the execution of a warrant later determined to be
deficient is nonetheless admissible if the executing officer’s reliance on the
warrant was objectively reasonable and made in good faith.’” Id. (quoting
United States v. Woerner, 709 F.3d 527, 533 (5th Cir. 2013)). Second, we must
determine whether the magistrate judge “had a substantial basis for . . .
concluding that probable cause existed.” Id. (alteration in original) (quoting
United States v. Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir. 1997)). If we
conclude that the district court was correct in applying the good-faith
exception, then we need not address the second step. Id.
      Hall argues that the good-faith exception does not apply to the Warrant
because it contains a false statement. “The good-faith exception to the
exclusionary rule does not apply if the warrant affidavit contains a false
statement that was made intentionally or with reckless disregard for its truth.”
United States v. Cavazos, 288 F.3d 706, 709–10 (5th Cir. 2002) (citing Franks
v. Delaware, 438 U.S. 154, 155–56 (1978)). If a defendant establishes that a
false statement was made either intentionally or with reckless disregard for
the truth by a preponderance of the evidence, “we must then excise the
offensive language from the affidavit and determine whether the remaining
portion would have established the necessary probable cause.” Id. at 710.
      In his warrant affidavit, Lieutenant Strause stated that “[w]ithin the
past 72 hours Affiant had the occasion to interview a reliable confidential
informant regarding Stephan Shane Hall” and that the informant told him
that there was methamphetamine at the House. But, at a suppression hearing,
Lieutenant Strause admitted that another officer, Sergeant Shawn Wilson,

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had been the one who actually interviewed the confidential informant.
Accordingly, Lieutenant Strause’s statement that he had interviewed the
informant was false.
      But, for a false statement to prevent application of the good-faith
exception, the statement must be made with the requisite mens rea, i.e., either
intentionally or with reckless disregard for the truth. See Cavazos, 288 F.3d at
709–10. In adopting the magistrate judge’s report and recommendation, the
district court found Lieutenant Strause’s testimony that the false statement
was simply a mistake “credible and uncontroverted,” implicitly finding that
Lieutenant Strause did not act with the requisite culpability.
      “We review for clear error the district court’s finding that an affiant’s
statements were not deliberately false or not made with reckless disregard for
the truth.” United States v. Thomas, 627 F.3d 146, 159 (5th Cir. 2010). Because
we find Lieutenant Strause’s explanation that the false statement was a
mistake to be plausible, and Hall has failed to demonstrate that the district
court’s finding on Lieutenant Strause’s mens rea was clear error, we conclude
that Lieutenant Strause’s false statement does not prevent application of the
good-faith exception. See United States v. Tillman, 84 F. App’x 464, 465 (5th
Cir. 2004) (per curiam).
      Hall similarly argues that the good-faith exception does not apply to the
Warrant because the residence described in the Warrant was not the residence
actually searched. The good-faith exception does not apply when a “warrant
[is] so facially deficient—i.e., in failing to particularize the place to be searched
or the things to be seized—that the executing officers cannot reasonably
presume it to be valid.” Leon, 468 U.S. at 899. The Warrant stated that the
residence to be searched was “located at 352 Spooner, Bridge City, Orange
County, Texas 77611.” The house is actually located at “352 Spooner, Orange,
Texas 77630.”

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       In adopting the magistrate judge’s report and recommendation, the
district court rejected this argument, explaining that “[b]ecause Strause was
both the affiant and the executing officer and had conducted surveillance on
the home, ‘there was no possibility the wrong premises would be searched.’”
We agree. In light of the executing officer’s ongoing involvement with the case,
we cannot say that the technical errors in the address render the warrant “so
facially deficient” “that the executing officers [could not] reasonably presume
it to be valid.” Leon, 468 U.S. at 899. Therefore, we conclude that the technical
errors in the address do not prevent application of the good-faith exception.
       Hall also argues that the Warrant is insufficient because the House was
searched before the Warrant was actually issued. The Warrant was issued by
a Texas state judge at 9:45 p.m. on August 31, 2013. Lieutenant Strause’s
report indicates that the House was entered at 9:11 p.m., before the Warrant
was signed. But, at the suppression hearing, Lieutenant Strause testified that
the Warrant was not actually executed until 10:11 p.m., twenty-six minutes
after it was signed. In adopting the magistrate judge’s report and
recommendation, the district court found Lieutenant Strause’s testimony
“credible.” On appeal, Hall has pointed to no evidence in the record indicating
that the police entered the home before the Warrant was signed and that the
discrepancy in timing was anything more than a typographical error that
would not prevent application of the good-faith exception. 1
       Although the Warrant contained several such errors or mistakes, we
cannot say that “the technical sufficiency of the warrant” was objectively



       1 On appeal, Hall raises several arguments that he failed to include in his motion to
suppress. He argues that the Warrant’s return and inventory was sworn to twenty-eight days
before the Warrant was executed. He also disputes the physical description of the House in
the Warrant affidavit and argues that the Warrant is deficient because the house searched
was actually owned by his wife, Misty Hall. But, because Hall did not include these
arguments in his motion to suppress, they are waived. See United States v. Pope, 467 F.3d
912, 918–19 (5th Cir. 2006).
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unreasonable. United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005).
Consequently, the district court did not reversibly err in applying the good-
faith exception, and the denial of Hall’s motion to suppress is affirmed.
B.    Sufficiency of the Evidence
      Hall challenges the sufficiency of the evidence for his three convictions.
While Hall moved for a directed verdict of not guilty on each count at the end
of the Government’s case, he did not renew the motion at the close of the case.
Therefore, we review his sufficiency arguments “only for a manifest
miscarriage of justice.” 2 United States v. Salazar, 542 F.3d 139, 142 (5th Cir.
2008). Under this standard, Hall “must show either that the record is ‘devoid
of evidence of guilt’ or that the evidence is ‘so tenuous that a conviction is
shocking.’” Id. (quoting United States v. Avants, 367 F.3d 433, 449 (5th Cir.
2004)). “[A]s is done under the standard of review employed when a sufficiency
challenge is properly preserved, the evidence must be considered ‘in the light
most favorable to the government, giving the government the benefit of all
reasonable inferences and credibility choices.’” Id. at 142–43 (quoting United
States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)).
      1. Conspiracy with Intent to Distribute Methamphetamine
      In order to sustain a conviction for conspiracy with intent to distribute
methamphetamine under 21 U.S.C. § 846, the Government must prove beyond
a reasonable doubt “(1) an agreement between two or more persons to violate
the narcotics laws, (2) the defendant’s knowledge of the agreement, and (3) the
defendant’s voluntary participation in the conspiracy.” United States v.
Zamora, 661 F.3d 200, 209 (5th Cir. 2011) (quoting United States v. Booker,
334 F.3d 406, 409 (5th Cir. 2003)). Hall argues that the Government has failed



      2  Although neither party recognizes this error, “we, not the parties, determine our
standard of review.” Sundown Energy, L.P. v. Haller, 773 F.3d 606, 611 (5th Cir. 2014)
(quoting United States v. Clark, 89 F. App’x 453, 456 (5th Cir. 2004)).
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to prove each of the necessary elements of this crime. He argues that, at most,
the Government established that he was found “at the scene of a drug
transaction” but that this fact alone is insufficient to prove he was involved in
a conspiracy.
      To participate in a conspiracy,“[a]n express agreement is not required; a
tacit, mutual agreement with common purpose, design, and understanding will
suffice.” United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007) (quoting
United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003)). “A jury may ‘infer
the existence of an agreement [to a conspiracy] from . . . testimony and the
other circumstantial evidence.’” Zamora, 661 F.3d at 209 (alterations in
original) (quoting United States v. Garcia, 567 F.3d 721, 732 (5th Cir. 2009)).
If the only thing that is shown is a defendant’s “‘mere presence at the crime
scene or close association with conspirators,’ jurors would not be entitled to
infer participation in the conspiracy.” United States v. Diaz, 637 F.3d 592, 602
(5th Cir. 2011) (quoting United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992)).
      In light of the evidence presented at trial, Hall’s conviction for conspiracy
with intent to distribute methamphetamine did not result in a “manifest
miscarriage of justice.” Salazar, 542 F.3d at 142. At trial, Lieutenant Strause
testified about the surveillance of the House leading up to the execution of the
Warrant and the activity around the House that he believed was indicative of
narcotics trafficking. Lieutenant Strause also testified that he and his fellow
officers ran the license plates of cars that came to the House and found that
many of the cars’ owners had prior methamphetamine possession charges. In
fact, officers conducted traffic stops on at least two individuals after they left
the House, including Hall’s wife, and found them in possession of either
methamphetamine or methamphetamine paraphernalia.



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      At trial, the Government also introduced evidence that officers found
approximately 57 grams of methamphetamine in the House. Lieutenant
Strause testified that such an amount was indicative of a distribution
operation. Drug paraphernalia was also found throughout the House,
including digital scales and hypodermic needles. Contradicting Hall’s
argument that he was merely “at the scene of a drug transaction,” an officer
testified that he found Hall and a coconspirator rubbing methamphetamine
into the carpet of a bedroom when law enforcement arrived.
      Further supporting his conviction, the Government introduced several
incriminating statements that Hall made to law enforcement following his
arrest. For example, the Government introduced a recording of the following
exchange between Hall and Lieutenant Strause:
      Hall: He, he, he wanted to have a place to come so he could stop
      halfway between and then see who he had to see right there in that
      area and then go on further into Louisiana and we needed the
      extra money for the truck and . . .

      Lieutenant Strause: So he was coming from wherever he picked
      the dope up at . . . well theoretically, and stopped off at your house
      to do what he needed to do bag it up, weigh, whatever then go on
      to where he was taking the dope to. Is that what you’re saying?

      Hall: Yes, damn it.
      In light of the evidence introduced at trial, we cannot say that the record
“is ‘devoid of evidence of guilt.’” Salazar, 542 F.3d at 142 (quoting Avants, 367
F.3d at 449). The direct and circumstantial evidence presented was sufficient
for the jury to infer the existence of a conspiracy between Hall and the other
individuals in the House to distribute methamphetamine. See Garcia, 567 F.3d
at 732. Therefore, it is not a manifest miscarriage of justice for the jury to
convict Hall of conspiracy with intent to distribute methamphetamine under
21 U.S.C. § 846.


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      2. Possession with Intent to Distribute Methamphetamine
      To sustain a conviction for possession with intent to distribute
methamphetamine under 21 U.S.C. § 841(a)(1), the Government must prove
beyond a reasonable doubt that the defendant knowingly possessed a
controlled substance, in this case methamphetamine, which he intended to
distribute. United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001). The
defendant’s “[p]ossession may be actual or constructive, may be joint among
several defendants, and may be proved by direct or circumstantial evidence.”
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1095 (5th Cir. 1991)
(quoting United States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987)).
“Constructive possession is ‘the knowing exercise of, or the knowing power or
right to exercise, dominion and control over the proscribed substance.’” Id.
(quoting Gardea Carrasco, 830 F.2d at 45).
      Hall argues that because the evidence is legally insufficient as to the
conspiracy count, the evidence is legally insufficient as to the possession count.
As noted above, officers found a quantity of methamphetamine consistent with
a distribution operation and various drug paraphernalia in the House. Officers
with the Narcotics Unit had observed traffic in and out of the House that was
consistent with narcotics trafficking. Hall also admitted to involvement with
the methamphetamine in his statements to Lieutenant Strause.
      Accordingly, the record was not devoid of evidence that Hall had, at a
minimum, constructive possession of the narcotics seized from the House and
the intent to distribute them. See Salazar, 542 F.3d at 142–43; United States
v. Cardenas, 748 F.2d 1015, 1019 (5th Cir. 1984). As such, it was not a manifest
miscarriage of justice for the jury to convict Hall of possession with intent to
distribute methamphetamine under 21 U.S.C. § 841(a)(1).




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      3. Felon in Possession of a Firearm
      To obtain a conviction for felon in possession of a firearm under 18
U.S.C. § 922(g)(1), the Government must prove beyond a reasonable doubt “(1)
that the defendant previously had been convicted of a felony; (2) that he
knowingly possessed a firearm; and (3) that the firearm traveled in or affected
interstate commerce.” United States v. Meza, 701 F.3d 411, 418 (5th Cir. 2012).
Possession may be actual or constructive and may be proven by circumstantial
evidence. Id. at 419. “‘Constructive possession’ may be found if the defendant
had (1) ownership, dominion or control over the item itself or (2) dominion or
control over the premises in which the item is found.” Id.
      Hall only challenges the sufficiency of the Government’s evidence on the
second element. Hall was indicted under 18 U.S.C. § 922(g)(1) for possession of
a specific firearm, “a Derringer, Model Frontier EX 3A, .22 caliber two shot
pistol, bearing serial number 39430,” which was found in a backpack in the
House. But, this Court has previously held that a specific type of weapon is not
an essential element of a conviction for felon in possession and “a variance in
the type of weapon charged in the indictment with the evidence adduced at
trial is not a material constructive amendment that requires vacating a
conviction.” United States v. Guidry, 406 F.3d 314, 322 (5th Cir. 2005); see also
United States v. Munoz, 150 F.3d 401, 416–17 (5th Cir. 1998). Therefore, to
obtain a conviction for felon in possession of a firearm, the Government only
needed to demonstrate that Hall had at least constructive possession of one of
the firearms found at the House.
      On appeal, Hall denies ownership of the backpack and the Derringer
pistol and argues that both “belonged to another individual, as mail addressed
to another individual was discovered inside the backpack along with the
firearm.” Two other firearms—a rifle and a semi-automatic pistol—were found
in the House’s garage hidden under a shower curtain on the passenger seat of

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a Ford F150. The truck was lifted by hydraulic jacks, and part of the front of
the vehicle had been removed. Hall argues that the evidence is insufficient to
demonstrate he possessed these guns because the Government failed to
establish how long they had been in the truck and whether Hall knew they
existed.
      Demonstrating that an individual exercised dominion or control over the
residence in which a firearm is found is typically sufficient to demonstrate
constructive possession of the firearm. See Meza, 701 F.3d at 419. At trial, the
Government demonstrated that Hall exercised dominion and control over the
House, including the truck parked and rendered inoperable in the garage.
Officers had observed Hall coming and going from the House for some time and
found his clothes and other personal items in a bedroom of the House. See, e.g.,
United States v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989) (finding a
defendant exercised dominion and control over a residence because his papers,
clothes, and prescription bottles were found in the home).
      Viewing the evidence in the light most favorable to the Government, with
all reasonable inferences directed to the jury’s verdict, the record is not devoid
of evidence that Hall possessed one of the firearms found in the House. See
Salazar, 542 F.3d at 142. Therefore, it was not a manifest miscarriage of justice
for the jury to convict Hall of felon in possession of a firearm under
18 U.S.C. § 922(g)(1).
                               III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of Hall’s
motion to suppress and AFFIRM his three convictions.




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