           Case: 17-13618   Date Filed: 09/07/2018   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13618
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:15-cr-00390-KOB-SGC-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                 versus

GERALD WIDEMAN,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                for the Northern District of Alabama - Jasper
                        ________________________

                            (September 7, 2018)

Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Gerald Wideman appeals his convictions for being a felon in possession of a

firearm and for possession of an unregistered firearm. First, Wideman asserts the

district court erred by denying his motion to suppress. Second, Wideman contends

the district court erred by admitting evidence at trial regarding marijuana found

growing on his property. Third, Wideman argues the post-verdict dismissal of a

charge for possessing a firearm with a removed serial number charge resulted in a

prejudicial spillover. Finally, Wideman urges the evidence was insufficient to

sustain his convictions. After review, we affirm.

                                       I. DISCUSSION
                          1
A. Motion to Suppress

       The Fourth Amendment protects the “right of people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. CONST. amend. IV. The exclusionary rule “bars the prosecution from

introducing evidence obtained by way of a Fourth Amendment violation.” See

Davis v. United States, 564 U.S. 229, 232 (2011). The exclusionary rule also

prohibits the introduction of derivative evidence, or evidence acquired as an

indirect result of an unlawful search, up to the point at which the connection with



       1
         The review of a district court’s denial of a motion to suppress is a mixed question of law
and fact. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007). We accept factual
findings as true unless they are clearly erroneous, and review the district court’s interpretation of
the law de novo. Id. The facts are construed in the light most favorable to the prevailing party.
United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

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the unlawful search becomes so attenuated as to dissipate the taint of the unlawful

search. Murray v. United States, 487 U.S. 533, 537 (1988).

      The question before us is whether the district court correctly declined to

exclude the firearms seized during a search of Wideman’s property. The district

court applied the independent source doctrine, which provides that evidence

obtained from a lawful source that is independent of any Fourth Amendment

violation is admissible. Id. at 537–38. When a government agent makes a

warrantless entry that arguably violates the Fourth Amendment and then relies in

part on what he saw during that entry to obtain a search warrant, we apply a two-

part test to determine whether evidence seized during the execution of the warrant

was discovered independent of the illegal entry. United States v. Noriega, 676

F.3d 1252, 1260 (11th Cir. 2012). First, we excise from the search warrant

affidavit any illegally gained information, and then we determine whether the

remaining information is enough to support a probable cause finding. Id. If the

remaining information is enough to support a probable cause finding, the second

thing we do is determine whether the officer’s decision to seek a warrant was

“prompted by” what he saw during the illegal entry. Id. If the officer would have

sought a warrant even without the illegally obtained information, the evidence

seized under the warrant is admissible. Id. at 1261.




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       Here, the district court correctly determined that the independent source

doctrine applied. After the district court excised any illegally obtained information

from the warrant affidavit, the remaining information—namely, aerial observation

of the marijuana plants growing on Wideman’s property—was sufficient to

establish probable cause for the issuance of a search warrant. Second, the district

court’s factual finding that Agent Wiggins and Sergeant Williams would have

sought a search warrant based solely on the information gathered from the aerial

observation is supported by the record. The district court credited the agents’

testimony that they would have sought a search warrant based on the aerial

observation alone, and nothing in the record conflicts with that conclusion.

Accordingly, we affirm the denial of Wideman’s motion to suppress.

B. Admission of Evidence2

       Second, Wideman contends the district court erred in admitting drug-related

evidence at trial. Relevant evidence is, as a general rule, admissible. Evidence is

relevant if it has any tendency to make a fact more or less probable than it would

be without the evidence and the fact is of consequence in determining the action.

Fed. R. Evid. 401. But Federal Rule of Evidence 403 provides that relevant




       2
        We review evidentiary rulings for an abuse of discretion. United States v. Thomas, 242
F.3d 1028, 1031 (11th Cir. 2001).

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evidence may be excluded if its probative value is substantially outweighed by a

danger of unfair prejudice. Fed. R. Evid. 403.

      The district court did not abuse its discretion by admitting evidence

related to the marijuana plants. In United States v. McLean, 138 F.3d 1398,

1403 (11th Cir. 1998), we held that evidence that pertains to “the chain of

events explaining the context, motive and set-up of the crime” is admissible

if it is “linked in time and circumstances with the charged crime, or forms an

integral and natural part of an account of the crime, or is necessary to

complete the story of the crime for the jury.” Drug related evidence that is

“in sufficiently close proximity, temporally and physically,” to the discovery

of charged firearms is “relevant to proving that [a defendant] knowingly

possessed the weapons.” United States v. Thomas, 242 F.3d 1028, 1032

(11th Cir. 2001).

      The marijuana plants on Wideman’s property were in close proximity,

both temporally and physically, to the charged firearms discovered in the

mobile home and the trailer. The marijuana was discovered on the same

day as the charged firearms. In excess of 50 marijuana plants were located

approximately 30 yards from the mobile home, and the mobile home

residence was located another 30 yards from the trailer. Nothing in the

record indicates that access to the marijuana plants from the mobile home


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and trailer was obstructed by vegetation, fencing, or any other impediment.

Thus, the drug-related evidence was properly admitted to show Wideman

knowingly possessed the charged firearms.

C. Prejudicial Spillover3

       Dismissal of some counts charged in the indictment does not automatically

warrant reversal of convictions reached on remaining counts. United States v.

Prosperi, 201 F.3d 1335, 1345 (11th Cir. 2000). Rather, we consider “whether the

convictions were the result of prejudicial spillover: that is, was there evidence

(1) that would not have been admitted but for the dismissed charges and (2) that

was improperly relied on by the jury in their consideration of the remaining

charges.” Id.

       Here, we proceed to the second step of the inquiry because there is no reason

to believe that Sergeant Williams’s testimony opining that the serial number had

been obliterated or removed, or that the government’s statements at closing would

have been admissible at trial had Count Two not been charged. In evaluating the

second step, we consider several factors: (1) “whether the jury meticulously sifted

the evidence admitted for all counts”; (2) “whether the contested evidence was

inflammatory in nature, and thus liable to prejudice the jury”; (3) “whether


       3
       A “prejudicial spillover” claim is reviewed for an abuse of discretion. United States v.
Hamblin, 911 F.2d 551, 559 (11th Cir. 1990).

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admission of the other evidence significantly altered the defendant’s trial strategy”;

and (4) “the strength of the evidence against the defendant on the remaining

counts.” Id. at 1346.

      On balance, nothing in the record indicates that the evidence admitted in

relation to Count Two was improperly relied on by the jury in considering the

other charges. First, there is nothing in the record to indicate that the jury did not

follow the district court’s instruction that each charge and the evidence pertaining

to it should be considered separately. The district court further explained that the

fact that the jury may find the defendant guilty or not guilty as to one of the

offenses charged should not affect the verdict as to any other offense charged.

Richardson v. Marsh, 481 U.S. 200, 211 (1987) (juries are presumed to follow

their instructions). Second, there is no indication that the evidence admitted

specific to Count Two altered Wideman’s trial defense strategy. And, finally, and

the evidence against Wideman on the remaining counts was sufficient to support

the jury’s convictions. Thus, even assuming some of the evidence specific to

Count Two was liable to prejudice the jury, the calculus supports the district

court’s conclusion.




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D. Sufficiency of the Evidence4

       With regard to the felon-in-possession count, the Government must prove

(1) the defendant knowingly possessed a firearm; (2) that the defendant was a

convicted felon; and (3) that the firearm was in or affecting interstate commerce.

United States v. Green, 873 F.3d 846, 852–54 (11th Cir. 2017). The Government

may satisfy the possession prong by showing either actual or constructive

possession. United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). To

prove actual possession the evidence must show that the defendant must have had

either physical possession of or personal dominion over the thing allegedly

possessed. Id. Constructive possession exists when a defendant has ownership,

dominion, or control over an object itself or dominion or control over the premises

in which the object is concealed. Id.

       Here, there was sufficient evidence that Wideman had at least constructive

possession of the guns found in the trailer and the mobile home. The evidence

established that Wideman had dominion and control over the guns located in the

mobile home because property records established that Wideman acquired the

property where the mobile home residence was located in 1983, and a tax record


       4
           We review challenges to the sufficiency of the evidence supporting a criminal
conviction de novo. United States v. Wilchcombe, 838 F.3d 1179, 1188 (11th Cir. 2016). The
evidence, viewed in a light most favorable to the government, must be such that a reasonable
trier of fact could find the evidence established guilt beyond a reasonable doubt. Id. We will not
reverse “unless no reasonable trier of fact could find guilt beyond a reasonable doubt.” United
States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010).
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established that he was the owner of the property at the time of the search; a copy

of Wideman’s 2006 felony conviction listed Wideman’s address as 647 Wideman

Road, the address where the mobile home residence was located; Wideman drove

his car onto the property where the mobile home residence was located on the day

of the search; officers located a wallet containing Wideman’s driver’s license and a

package addressed to Wideman dated less than one week before the day of the

search inside the mobile home residence; and Wideman purchased one of the

charged guns discovered in the mobile home residence himself. Although officers

did not discover a key to the trailer on Wideman’s person, the evidence was

sufficient to support a finding that Wideman also constructively possessed the guns

discovered in the trailer. The trailer was located on Wideman’s property 30 yards

away from the mobile home residence where Wideman lived. Additionally, no

evidence at trial showed that another person had access to the trailer located on

Wideman’s property. Accordingly, the evidence was sufficient to establish that

Wideman knowingly possessed the guns charged in Count One.

      Section 5861(d) makes it unlawful for any person to “possess a firearm

which is not registered to him in the National Firearms Registration and Transfer

Record.” 26 U.S.C. § 5861(d). The term “firearm” is defined as, among other

things, “a shotgun having a barrel or barrels of less than 18 inches in length.” 26

U.S.C. § 5845(a). The Government must prove beyond a reasonable doubt that the


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defendant knew that the weapon he possessed had the characteristics that brought it

within the statutory definition of a firearm. United States v. Miller, 255 F.3d 1282,

1286 (11th Cir. 2001). The Government is not, however, required to prove that the

defendant knew that the firearm in his possession had to be registered. United

States v. Owens, 103 F.3d 953, 956 (11th Cir. 1997).

      In Miller, the defendant argued that there was absolutely no evidence at trial

which suggested that he knew that the shotgun he possessed had a barrel of less

than 18 inches. Miller, 255 F.3d at 1286. At trial, the Government presented

evidence that the shotgun was 15 ½ inches long. Id. at 1287. Although the

Government presented no direct evidence that the defendant knew the shotgun’s

barrel was shorter than 18 inches, we concluded there was ample circumstantial

evidence to support the conclusion that the defendant knew the barrel’s length was

less than 18 inches, namely, that the barrel’s length was a patently obvious

characteristic readily apparent to anyone who observed the gun. Id. Here, because

both shotguns’ barrel lengths were readily apparent, and less than 18 inches, there

was sufficient evidence establishing Wideman guilty beyond a reasonable doubt.

                                II. CONCLUSION

Accordingly, we affirm.

      AFFIRMED.




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