UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4301

MATTHEW LANE DRENNEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-95-27)

Submitted: March 25, 1997

Decided: September 5, 1997

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John Yeager, Jr., Weirton, West Virginia, for Appellant. William D.

Wilmoth, United States Attorney, Paul T. Camilletti, Assistant United

States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Matthew Lane Drennen of the unlawful use of a

communication facility in causing and facilitating a drug felony in

violation of 21 U.S.C. § 843(b) (1994), simple possession of methamphetamine in violation of 21 U.S.C. § 844(a) (1994), and being a

felon in possession of a firearm in violation of 18 U.S.C.A. § 922(g)

(West Supp. 1997). Drennen raises four issues on appeal. First he

alleges that conviction on a single count of possession of methamphetamine is insufficient to uphold a conviction for use of the mails

to commit drug felonies in violation of 21 U.S.C.§ 843(b). Second,

he argues that he did not validly waive his Miranda rights and the district court erred by improperly admitting statements he made after the

alleged waiver. Third, Drennen argues that his consent to search a

duffle bag containing a gun was invalid and he was not sufficiently

in control of the gun for purposes of a conviction for possession of

a firearm by a felon. Finally, Drennen argues that the Government did

not have proper authority to remove a package containing methamphetamine from the mails and to hold it for a period of time. For the

reasons below, we affirm.

I

Drennen argues that his conviction on a single count of possession

of methamphetamine is not sufficient to uphold a conviction for "use

of the mails to commit drug felonies," count nineteen as charged in

the indictment. He argues that because he was not found guilty of any

felony distribution or conspiracy charges, but merely an underlying

offense of simple possession, his conviction on the communication

facility charge cannot stand because the statute requires use in the

commission of a felony.

Drennen filed a motion notwithstanding the verdict on the communications facility charge. The district court denied the motion, relying

on United States v. Powell, 469 U.S. 57 (1984). The court found that,

while the verdicts may be inconsistent, the verdict for count nineteen

must stand. In Powell, the Supreme Court reaffirmed the rule it had

established in Dunn v. United States, 284 U.S. 390 (1932), that a

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criminal defendant convicted by a jury on one count cannot attack

that conviction because the jury's verdict of acquittal on another

count was inconsistent with the conviction. See Powell, 469 U.S. at

64-65.

While this court has not specifically addressed the issue of whether

21 U.S.C. § 843(b) requires a predicate felony conviction, we have

upheld inconsistent verdicts in similar situations. See United States v.

Harriott, 976 F.2d 198, 201-02 (4th Cir. 1992) (upholding convictions for crimes satisfying the subsequent acts requirement of a crime

of which the jury acquitted the defendant); United States v. Tinsley,

800 F.2d 448, 450-51 (4th Cir. 1986) (upholding conspiracy and racketeering convictions even though the jury acquitted the defendant of

the predicate offense charged); United States v. Polowichak, 783 F.2d

410, 417-18 (4th Cir. 1986) (upholding convictions for interstate

travel violations when the jury acquitted the defendants of substantive

acts that the interstate travel was intended to promote).

Drennen relies upon United States v. Dotson, 871 F.2d 1318 (6th

Cir. 1989), amended on rehearing, 895 F.2d 263 (6th Cir. 1990), and

United States v. Johnstone, 856 F.2d 539 (3d Cir. 1988), in making

his argument. In Johnstone, the Third Circuit held that in order to support a conviction for the illegal use of a communication facility in the

commission of a drug felony, "[t]he occurrence of the underlying drug

felony is a fact necessary to finding a violation of§ 843(b)" and "must

be proved not by a preponderance of the evidence, but beyond a reasonable doubt." Johnstone, 856 F.2d at 543. In Johnstone, the jury

instructions permitted a finding of the underlying drug felony by a

preponderance of the evidence. The Third Circuit reversed the convictions for 21 U.S.C. § 843(b) violations because of the faulty jury

instructions. Id. at 542-46. In Dotson , the Sixth Circuit addressed the

burden of proof issue, but in doing so held that a§ 843(b) violation

requires commission of a predicate drug offense as a fact necessary

to constitute the crime. See Dotson, 871 F.2d at 1321-22.

Drennen also argues that Powell should not apply because it

applies to criminal cases with merely inconsistent verdicts and does

not address the question of whether a conviction under § 843(b)

requires a conviction of an underlying drug felony. Drennen's situation is very similar to the facts of Powell. Drennen's reliance on the

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Johnstone and Dotson holdings regarding the burden of proof

required for jury instructions is not persuasive in light of Powell, and

the case law in this Circuit. We therefore hold that Drennen's verdict

should stand.

II

Drennen argues that the district court erred by denying his motion

to suppress the statements he made to the agents after his arrest. This

court reviews the district court's ultimate conclusion de novo, but its

factual findings are reviewed for clear error. United States v. Han, 74

F.3d 537, 540 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.

3807 (U.S. June 3, 1996) (No. 95-8891); United States v. Williams,

10 F.3d 1070, 1077 (4th Cir. 1993).

Drennen's argument relies upon the assertion that he requested

counsel after an agent read him his Miranda rights. At the suppression

hearing before the magistrate judge, Drennen testified that he asked

for a lawyer and that he was forced to give a statement because the

agents threatened to obtain a search warrant for his residence, his

wife's residence, and his place of business. Agent Randolph and

Trooper Kolas testified that Drennen did not request counsel. The

waiver of Miranda rights that Drennen signed states "Do not wish to

talk."

Drennen alleged that when the officers took him into custody one

of them said something to the effect of "I've got you now, scumbag,"

that he was not allowed to leave the area in the post office where he

was interrogated, and that the officers told him that he was in serious

trouble. Inspector Randolph on cross-examination denied calling

Drennen a scumbag and also denied advising Drennen that he would

obtain a search warrant for Drennen's home and business. Trooper

Kolas testified that he never heard anyone discuss a search warrant

for Drennen's home or business. In addition, Drennen did not object

to admission of the statements he made at a second interview almost

a month after his arrest reiterating the details of his first statement or

dispute their voluntariness.

The magistrate judge found that Drennen voluntarily made the

statement and that there was no credible evidence which corroborated

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Drennen's request for counsel or that the officers threatened to obtain

the alleged search warrants. The district court affirmed the recommendation and ruled at trial and again in denying the Fed. R. Crim.

P. 29 motion that the statements were properly admitted. The magistrate judge's recommendation clearly made a factual finding that

Drennen did not request counsel.

It is uncontested that Drennen asserted his right to remain silent

after Inspector Randolph read him his Miranda rights. Once that happened, Miranda required that the officers involved cease interrogation. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). The officers

could reinitiate questioning only if Drennen's right to terminate the

interrogation was "scrupulously honored." Michigan v. Mosley, 423

U.S. 96, 104 (1975). Even after the right to silence has been invoked,

however, an officer may seek identifying information. United States

v. Taylor, 799 F.2d 126, 128 (4th Cir. 1986).

After the defendant invokes the right to silence, an officer may

advise the defendant to reconsider the decision. United States v.

Smith, 608 F.2d 1011, 1014 (4th Cir. 1979). In Smith, the defendant

stated that he did not wish to talk after he had been read his Miranda

rights. He subsequently signed a waiver and made an incriminating

statement. The reconsideration must be "`urged in a careful, noncoercive manner at not too great length and in the context that a

defendant's assertion of his right not to speak will be honored.'"

Smith, 608 F.2d at 1014 (quoting United States v. Collins, 462 F.2d

792, 797 (2d Cir. 1972)).

Trooper Kolas testified that he advised Drennen to reconsider his

decision to invoke his right to silence. Kolas's discussion regarding

the investigation and potential sentencing consequences was not coercive or lengthy; it was a short, simple explanation of the investigation

and its consequences. Kolas also reiterated that Drennen had a right

to an attorney. We therefore find that Kolas did not violate the

requirements of Smith.

After a thorough review of the record, we find that the district court

did not clearly err or make a mistake of law by admitting the statements.

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III

Drennen's statement of the issue and argument regarding the

search of the bag and seizure of the gun essentially raises three points.

First, Drennen alleges that he did not validly consent to search of the

duffle bag found in the bed of the truck. Second, he alleges that the

search of the bag was not properly incident to arrest. Finally, in his

statement of the issue, Drennen contends that he was not sufficiently

in possession or control of the weapon to violate the prohibition

against a felon possessing a firearm.

Searches and seizures conducted without a warrant are prohibited

by the Fourth Amendment unless a valid exception to the warrant

requirement applies. See Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973). Voluntary consent is an exception to the warrant requirement. Id. To determine whether consent to search is voluntarily given,

the totality of the circumstances must be examined. Id. at 233. When

viewing the totality of the circumstances, the characteristics of the

defendant and the circumstances under which the defendant gave consent, and whether the defendant knew that he had a right to refuse

consent should be considered. See United States v. Lattimore, 87 F.3d

647, 650 (4th Cir. 1996).

The voluntariness of the consent is a factual question which is

reviewed by this court only for a finding of clear error. See Lattimore,

87 F.3d at 650. When the lower court bases its ruling on oral testimony heard at a suppression hearing, such as is the case here, the ruling may not be disturbed "unless it can be said that the view of the

evidence taken by the district court is implausible in light of the entire

record." Id. at 651.

After Drennen waived his right to silence and began answering the

officers' questions, Inspector Randolph asked Drennen for permission

to search the bag. Initially, Drennen declined to consent to the search.

After Randolph told him that he would obtain a search warrant for the

bag, Drennen agreed and advised that the officers would find a gun

inside. Before the officers searched the bag, Drennen executed a written consent to the search. Drennen acknowledged that he understood

his rights, and initially exercised them. From the trial transcripts it

appears that only Inspector Randolph and Trooper Kolas were present

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when they requested Drennen's consent. Drennen knew that he had

the right to refuse as exhibited by his initial refusal. We find that the

district court did not clearly err in finding that Drennen voluntarily

consented to the search and properly admitted the gun.

In his statement of the issue, Drennen alludes to argument that he

was not sufficiently in possession or control of the gun to be found

as a felon possessing a gun. To the extent that Drennen raises this

issue, it is without merit. "Knowing possession," under the relevant

statutes, may be established by proving that the defendant was in constructive possession of a firearm. United States v. Blue, 957 F.2d 106,

107 (4th Cir. 1992). Constructive possession exists when the defendant exercises, or has the power to exercise, dominion and control

over the item, United States v. Laughman, 618 F.2d 1067, 1077 (4th

Cir. 1980), and has knowledge of the item's presence. United States

v. Bell, 954 F.2d 232, 235 (4th Cir. 1992). Knowledge may be

inferred from possession, that is, dominion and control over the area

where the contraband is found. United States v. Lochan, 674 F.2d

960, 966 (1st Cir. 1982).

Drennen exercised dominion and control over the area where the

bag with the gun was located. He placed the drugs next to the bag.

He was alone at the truck and leaning on the side of it beside the bag

and the package containing the drugs. He knew that there was a handgun in the bag as evidenced by his statements to the officers. We find

that this evidence is sufficient to support a conviction under 18 U.S.C.

§ 922(g).

IV

Finally, Drennen alleges that the government did not have proper

authority to remove the package containing the methamphetamine

from the mails and to hold it for a period of time before delivering

it to Drennen. Drennen did not raise this issue before the district

court, and he cannot do so for the first time now on appeal. Singleton

v. Wulff, 428 U.S. 106, 120 (1976); Muth v. United States, 1 F.3d 246,

250 (4th Cir. 1993).

Drennen's reply brief raises two additional issues not presented in

his opening brief. An appellant's opening brief must raise all issues

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on appeal and additional issues may not be asserted for the first time

in the reply brief. See Fed. R. App. P. 28; Hunt v. Nuth, 57 F.3d 1327,

1338 (4th Cir. 1995), cert. denied, #6D6D 6D# U.S. ___, 64 U.S.L.W. 3466

(U.S. Jan. 8, 1996) (No. 95-6509). Therefore, we decline to review

the additional issues not raised in the opening brief.

We therefore affirm the district court judgment. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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