FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 20, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13159

Non-Argument Calendar

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D. C. Docket No. 08-00015-CR-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LONNIE PAUL CHASTAIN, SR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(July 20, 2010)

Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:

Lonnie Paul Chastain, Sr., appeals his conviction for possession of a firearm

during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). No

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reversible error has been shown; we affirm.

Chastain argues that evidence obtained from a search of his residence should

have been suppressed because the warrant did not comply with the requirements of

Fed.R.Crim.P. 41, given that the Hall County Magistrate Court, from where the

warrant was obtained, was not a “court of record” under Georgia law. Even though

the warrant was executed by state officers, Chastain maintains, those officers were

required to comply with Rule 41 because the investigation had federal

involvement. In considering the district court’s denial of a motion to suppress, we

review fact determinations for clear error and the application of law to the facts de

novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). And we

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construe all facts in the light most favorable to the prevailing party. Id.

In pertinent part, Rule 41 provides that

[a]t the request of a federal law enforcement officer or an

Chastain, Sr. was indicted along with his son, Lonnie Chastain, Jr. Chastain, Sr. pleaded

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guilty to drug conspiracy and possession charges, but proceeded to trial on the firearm charge. 

Chastain did not object to the magistrate judge’s report and recommendation. See 2

United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (we review for plain error when a

party fails to “specifically identify [the fact] findings to which he objects” in the magistrate’s

report). But under either plain or clear error review, Chastain’s argument fails. 

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attorney for the government: (1) a magistrate judge with authority in

the district -- or if none is reasonably available, a judge of a state court

of record in the district -- has authority to issue a warrant to search for

and seize a person or property located within the district.

Fed.R.Crim.P. 41(b)(1). Rule 41 governs searches that are “federal in character.”

United States v. Lehder-Rivas, 955 F.2d 1510, 1522 (11th Cir. 1992) (explaining

that “[a] state search warrant must comply with federal standards if the search was

‘federal in execution’”).

We conclude that no error occurred here because no federal involvement

existed in the application for or execution of the search warrant; thus, Rule 41 did

not apply to the warrant proceedings. Hall County officers initiated the drug

investigation against Chastain after an officer smelled marijuana on his property

while there on an unrelated arson investigation.

Local officers were executing the warrant when an agent with the Federal

Bureau of Investigation (FBI) heard about the search of the Chastain residence via

police radio. The FBI agent went to the Chastain residence while the search was

being carried out and, days later, spoke to the county officers about a possible

federal prosecution. But the search was initiated and executed entirely by state

officers; the FBI agent’s mere presence at the search of the residence did not render

the execution of the search warrant federal in character. See id. (explaining that a

“search is federal in execution if a federal official had a hand in it” and concluding

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that Rule 41 did apply in that case because federal agents provided intelligence

information to the state officers involved) (internal quotation omitted).

Chastain also challenges the sufficiency of the evidence against him, arguing

that the government demonstrated no sufficient nexus between the firearms seized

and the drug operation. We review de novo the denial of a motion for judgment of

acquittal based on sufficiency grounds; and we draw all reasonable inferences in

the government’s favor. United States v. Evans, 473 F.3d 1115, 1118 (11th Cir.

2006).

To convict Chastain of possession of a firearm during a drug trafficking

crime under section 924(c)(1)(A), the government had to prove that he “(1)

knowingly (2) possessed a firearm (3) in furtherance of any drug trafficking crime

for which he could be prosecuted in a court of the United States.” United States v.

Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008). We have construed the “in

furtherance” language to require “that the prosecution establish that the firearm

helped, furthered, promoted, or advanced the drug trafficking.” United States v.

Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002).

The nexus between the gun and the drug operation can be

established by the type of drug activity that is being conducted,

accessibility of the firearm, the type of weapon, whether the weapon is

stolen, the status of the possession (legitimate or illegal), whether the

gun is loaded, proximity to the drugs or drug profits, and the time and

circumstances under which the gun is found.

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Id. at 1253 (internal quotations and citations omitted).

Three firearms were discovered in the Chastain residence, where Chastain

and his son had conducted a large-scale marijuana growing operation in the

basement for over 10 years; marijuana was harvested every 90 days. These

firearms included guns in the bedrooms of both Chastain and his son and a loaded

shotgun near where officers discovered marijuana. Both Chastains had access to

the shotgun. And Chastain’s son testified that guns had been in the house from the

inception of the drug operation to protect themselves and the contents of the home.

On these facts, we conclude that sufficient evidence existed to support

Chastain’s conviction. Given the close proximity of the drugs and the loaded

shotgun, the large-scale marijuana growing operation, and the extensive safety

measures in place to guard the pertinent basement, a jury reasonably could infer

that the firearms were used in furtherance of the drug trafficking activity. See id.;

United States v. Suarez, 313 F.3d 1287, 1292-93 (11th Cir. 2002).

Chastain cites evidence of his possession and familiarity with guns before

trafficking drugs and his son’s testimony that he had not seen his father use a gun

in many years to argue that the presence of guns was merely coincidental to the

criminal conduct. But the evidence need not exclude every reasonable hypothesis

of innocence, and jurors are free to choose among reasonable constructions of the

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evidence. See United States v. Mattos, 74 F.3d 1197, 1199-1200 (11th Cir. 1996).

That the guns could have been used in furtherance of the drug activity was such a

reasonable construction.

AFFIRMED.

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