United States v. Joseph W. Rohe, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 16, 2018
• Docket: 18-11398
• Status: Unpublished

Opinion

Case: 18-11398 Date Filed: 11/16/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11398 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cr-00229-CG-B-1

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

JOSEPH W. ROHE, JR.,

Defendant–Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(November 16, 2018)

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-11398 Date Filed: 11/16/2018 Page: 2 of 8

Joseph Rohe, Jr. appeals his conviction for possession of a firearm by a

convicted felon under 18 U.S.C. § 922(g). The firearms were found during a

search for drugs and drug paraphernalia executed pursuant to a warrant authorizing

a search of Rohe’s home and the surrounding curtilage. On appeal, Rohe argues

that (1) the district court erred in denying Rohe’s motion to suppress because the

search warrant was not supported by probable cause and (2) the district court erred

in denying Rohe’s motion for a judgment of acquittal because the government did

not present sufficient evidence that Rohe had constructive possession of the

firearms. After review, we affirm.

I.

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

evidence. Rohe argues that the affidavit filed in support of the warrant did not

establish probable cause because the affidavit contained stale information, and

because the affidavit was too vague and indefinite.

Sergeant Benjamin Taylor’s affidavit in support of a search warrant for

Rohe’s property relied on four pieces of information: (1) several unidentified

sources who stated that Rohe used and sold marijuana and methamphetamine at his

residence, (2) Rohe’s prior history of drug arrests (during which time he was

located at the same residence), (3) a trash pull from Rohe’s garbage conducted

within a month of the affidavit which found plastic baggies with the corners cut

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off, which tested positive for marijuana, and (4) a trash pull from Rohe’s garbage

conducted within 72 hours of Taylor’s affidavit which found plastic baggies with

the corners cut off, which tested positive for methamphetamine. Taylor’s affidavit

also stated that plastic baggies with the corners cut off implied narcotics

distribution. Based on this information, the district court determined that probable

cause existed for the search and denied the motion to suppress.

We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the district court’s findings of fact for clear error and its

application of the law to those facts de novo. United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). “Further, when considering a ruling on a motion to

suppress, all facts are construed in the light most favorable to the prevailing party

below.” Id.

A district court’s determination of probable cause is reviewed de novo.

United States v. Lebowitz, 676 F.3d 1000, 1010 (11th Cir. 2012). “Probable cause

to support a search warrant exists when the totality of the circumstances allow a

conclusion that there is a fair probability of finding contraband or evidence at a

particular location.” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.

1999). A search warrant affidavit “should establish a connection between the

defendant and the residence to be searched and a link between the residence and

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any criminal activity.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.

2002).

If an informant is described in an affidavit, the affidavit “must also

demonstrate the informant’s veracity and basis of knowledge” unless “there is

sufficient independent corroboration of an informant’s information . . . .” Id.

(quotation marks omitted). Finally, stale information is not fatal to a search

warrant affidavit so long as the affidavit “updates, substantiates, or corroborates

the stale material.” United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000)

(quotation marks omitted) (holding that a search warrant was supported by

probable cause where the statements regarding the defendant’s past drug arrests

were corroborated by recent information obtained from a wiretap).

Here, the totality of the circumstances supports a finding of probable cause.

The magistrate judge relied not only on the tips from separate sources alleging

drug use and distribution on Rohe’s property and Rohe’s history of drug arrests,

but also two separate trash pulls conducted on Rohe’s property, one of which was

conducted within 72 hours of Taylor’s affidavit. Additionally, while an

informant’s veracity and basis of knowledge must usually be disclosed, such

information is not required where “there is sufficient independent corroboration of

an informant’s information.” Martin, 297 F.3d at 1314 (quotation marks omitted).

Here, the trash pulls finding residue of marijuana and methamphetamine serve as

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such independent corroboration. Further, to the extent that any information in the

affidavit might have been stale, the second trash pull conducted within 72 hours of

the affidavit substantiated and corroborated the pre-existing information. See

Jiminez, 224 F.3d at 1249.

Because the totality of the circumstances established a “fair probability” that

a search of Rohe’s property would reveal illegal drug distribution, the magistrate

did not err in finding probable cause to support the search. See United States v.

Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). Accordingly, the district court

did not err in denying Rohe’s motion to suppress.

II.

Next, Rohe argues the district court erred in denying his motion for a

judgment of acquittal because the government did not present sufficient evidence

that he had constructive possession of the firearms. According to Rohe, the

government failed to present evidence that showed “more than [the] mere

presence” of firearms on his property.

At trial, officers testified that they discovered eight firearms between the

locked shed and the RV on Rohe’s property. Taylor testified that when he asked

Rohe whether he had a key to the shed, Rohe responded that he did, but that the

key was in his wallet at his place of employment. Taylor also testified that he

asked Rohe who put the firearms in the locked shed, and that Rohe admitted that

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he had put them there. The jury also heard two recorded jailhouse calls. In the

first call, between Rohe and his father, Rohe admitted that he knew the guns were

present on his property and said he told the “kids” to get rid of the guns. In the

second call, between Rohe and his wife, Rohe implied that the guns were supposed

to have been removed.

During the trial, Rohe’s extended family members testified in support of

Rohe, and explained that Rohe was not the owner of the guns. One witness, Seth

Dobson, testified that Rohe did not have a key to the RV or shed, and that he, not

Rohe, had placed the guns in the shed. While Dobson initially testified that Rohe

had no knowledge of the guns, Dobson admitted on cross-examination that Rohe

had knowledge of the guns and that Rohe was angry about their presence.

This Court reviews a challenge to the sufficiency of the evidence de novo,

“viewing the evidence in the light most favorable to the government and drawing

all reasonable inferences and credibility choices in favor of the jury's verdict.”

United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). We will uphold a

district court’s denial of a motion for a judgment of acquittal “if a reasonable trier

of fact could conclude the evidence established the defendant's guilt beyond a

reasonable doubt.” Id.

To prove a violation of 18 U.S.C § 922(g)(1), the government must prove

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

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previously been convicted of an offense punishable by a term of imprisonment

exceeding one year; and (3) the firearm was in or affecting interstate commerce.

United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). Possession can be

actual or constructive. See United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.

2006). “Constructive possession exists when the defendant exercises ownership,

dominion, or control over the item or has the power and intent to exercise

dominion or control.” Id.

At trial, the jury heard testimony from the government’s witnesses that Rohe

had access to the shed and had placed the firearms inside the shed. Such access

was sufficient for the jury to find that Rohe had the “dominion or control” over the

shed necessary for constructive possession. See United States v. Martinez, 588

F.2d 495, 498−99 (5th Cir. 1979) (finding sufficient evidence for constructive

possession where the defendant had keys which allowed him to access the

contraband, even where the defendant was not the owner of the contraband).

Although Rohe offered testimony that suggested that he did not have access

to the firearms, we are required to defer to the jury’s reasonable credibility

determinations. See United States v. Pearson, 746 F.2d 787, 794 (11th Cir. 1984).

When we view the evidence in the light most favorable to the United States and

draw all reasonable credibility choices in favor of the jury’s verdict, as we must, a

reasonable trier of fact could have found that Rohe had constructive possession of

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the firearms on his property, and thus fulfilled the elements necessary to sustain a

conviction under 18 U.S.C § 922(g)(1). See United States v. Taylor, 480 F.3d

1025, 1026 (11th Cir. 2007). Accordingly, the district court did not err in denying

Rohe’s motion for judgment of acquittal.

AFFIRMED.