US v. Lasalle Boone

Filing 920090429

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4668

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LASALLE BOONE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00145-RBS-FBS-1)

Submitted:

March 31, 2009

Decided:

April 29, 2009

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew A. Protogyrou, Nicholas L. Woodhouse, PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Elizabeth Bartlett Fitzwater, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lasalle possession violation with of 21 Boone the was convicted to after a jury trial base, of in

intent

distribute

cocaine

U.S.C.A.

§ 841(a)(1),

(b)(1)(A)(iii)

(West

2000 & Supp. 2006), and possession of a firearm by a convicted felon, in violation He of 18 U.S.C.A. asserting to the file § 922(g)(1) that an the (West 2000 & court to to

Supp. 2006). erred in

appeals, him and

district

denying evidence

leave that

untimely is

motion

suppress

evidence

insufficient

support his convictions. Under evidence must by Fed. be R.

Finding no error, we affirm. Crim. prior P. to 12, trial See motions or by to the R. suppress deadline Crim. P.

raised

established

the

district

court.

Fed.

12(b)(3)(C), 12(c).

A defendant waives the right to file a

suppression motion if he fails to file the motion prior to the deadline set by the district court, unless he can establish good cause for the waiver. Fed. R. Crim. P. 12(e). This court has

found good cause to excuse an untimely motion to suppress where, for instance, the delay in filing the suppression motion was caused by the Government's failure to turn over the evidence sought to be suppressed. See United States v. Chavez, 902 F.2d

259, 263-64 (4th Cir. 1990). This court will not disturb a district court's denial of leave to file an untimely 2 motion to suppress unless the

district

court

committed

clear

error.

See

United

States

v.

Ruhe, 191 F.3d 376, 385 (4th Cir. 1999); Chavez, 902 F.2d at 263. Accordingly, "reviewing courts rarely grant relief from Chavez, 902 F.2d at generally deny relief

denials of untimely suppression motions." 263 (recognizing that appellate courts

from the denial of untimely suppression motions where the motion was made after the court-imposed deadline and the defendant

proffered only a "dubious excuse"); see Ruhe, 191 F.3d at 386-87 (holding that there existed no good cause to raise an untimely suppression diligence issue). issue where the of the defendant could have to with raise that due the the

discovered After

information the

necessary we

review

record,

conclude

district court did not commit error, clear or otherwise, when it denied Boone leave to file an untimely motion to suppress. Boone also challenges the sufficiency of the evidence supporting failed to his show convictions his on the of basis the that the Government and the

possession

cocaine

base

firearms seized in this case.

At the close of the Government's

evidence and the evidence as a whole, Boone moved for a judgment of acquittal under Fed. R. Crim. P. 29. court's denial of that motion de novo. We review the district E.g., United States v.

Uzenski, 434 F.3d 690, 700 (4th Cir. 2006). In assessing the sufficiency of the evidence, this

court must determine whether the jury's verdict is sustained by 3

"substantial evidence, taking the view most favorable to the Government, to support it." United States v. Pierce, 409 F.3d

228, 231 (4th Cir. 2005) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). reasonable finder of Substantial evidence is evidence "that a fact could accept as adequate and

sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 In evaluating the sufficiency of the not assess the credibility of

(4th Cir. 1996) (en banc). evidence, this court

does

witnesses and assumes that the jury resolved discrepancies in the testimony in the Government's favor. Sun, 278 F.3d 302, 313 (4th Cir. 2002). To convict Boone of possession with the intent to See United States v.

distribute cocaine base, the Government had to prove that he: (1) knowingly, to (2) possessed it. the cocaine 94 base, F.3d (3) at with 873. the To

intent

distribute

See

Burgos,

convict Boone under 18 U.S.C. § 922(g)(1), the Government was required to prove that Boone: (1) was a convicted felon at the

time of the offense; (2) voluntarily and intentionally possessed a firearm; and (3) that the firearm traveled in interstate

commerce at some point.

See United States v. Gallimore, 247 Possession may be actual or

F.3d 134, 136 (4th Cir. 2001). constructive. Cir. 1992).

United States v. Rusher, 966 F.2d 868, 878 (4th The Government may prove constructive possession by 4

presenting evidence that the defendant exercised, or had the power to exercise, dominion and control over the item. Id.

Moreover, possession need not be exclusive, but may be joint and can be established by direct or circumstantial evidence. States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985). United Although

a defendant's mere presence at, or joint tenancy of, a location where contraband is found is insufficient v. to establish 991 F.2d

constructive

possession,

United

States

Morrison,

112, 115 (4th Cir. 1993), "where other circumstantial evidence . . . is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence" will support such a finding, United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980) (internal quotation marks and citation omitted).

Consistent with this principle, this court has held that the fact that an contraband inference is of found in a defendant's possession." residence United

"permits

constructive

States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003). We have reviewed the record and conclude that the jury had sufficient evidence from which to infer and find that Boone had knowledge of and exercised dominion and control over the cocaine base and firearms seized in this case. In this case,

prior to executing a search warrant at a residence on Vermont Avenue in Portsmouth, Virginia ("the Vermont Avenue residence"), law enforcement observed Boone 5 in front of the residence

cleaning

a

vehicle.

As

a

result

of

their

search,

law

enforcement officials recovered cocaine base and various indicia of narcotics distribution, including United States currency, a digital scale, plastic bags and a razor blade, and a tin can with a false that bottom, also name. from a bedroom papers wife, in the Vermont Avenue effects the

residence bearing

contained Boone's

and who

personal also

Boone's

occupied

Vermont Avenue residence, testified that the cocaine base and distribution indicia were not hers. Additionally, although

Boone was not present at the Vermont Avenue residence when law enforcement officials began their search, he arrived there

approximately thirty to forty minutes later, questioning what law enforcement officials were doing at his house. The jury also heard testimony that Boone alone leased a residence at the Shamrock Gardens Apartments in Chesapeake, Virginia additional recovered. bedroom in ("the Shamrock of Gardens cocaine base residence") base and the from which an were

quantity The the

firearms an

cocaine Shamrock

was

recovered residence

from

upstairs various

Gardens

containing

personal effects and papers bearing Boone's name.

The firearms

were recovered from the residence's first floor living area, and the jury could infer Boone's access to them, as Boone was the sole authorized occupant of the residence and occupied it on a part-time basis. 6

This evidence was sufficient to allow a jury to infer and find that Boone had knowledge of and exercised dominion and control over the cocaine base and firearms recovered from the Vermont Avenue and Shamrock Gardens residences. the district court did not err in denying Accordingly, Rule 29

Boone's

motions. Therefore, We dispense with we affirm the district the court's facts judgment. and legal

oral

argument

because

contentions are adequately presented in the materials before the court, and argument would not aid the decisional process.

AFFIRMED

7