FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 8, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16825

Non-Argument Calendar

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D. C. Docket No. 08-20394-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO DUNCAN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 8, 2009)

Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:

Alberto Duncan appeals his convictions for drug and firearm offenses, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1). No reversible error

has been shown; we affirm.

On appeal, Duncan challenges the district court’s denial of his motion to

suppress the drugs and gun discovered in a search of his home. Duncan maintains

that his consent to search was not voluntary and that it was error for the district

court to adopt the magistrate judge’s finding on this point. In considering the

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district court’s denial of a motion to suppress, we review fact determinations for

clear error and application of law to the facts de novo. United States v. Boyce,

351 F.3d 1102, 1105 (11th Cir. 2003). And we construe all facts in the light most

favorable to the prevailing party -- here, the government. Id.

Police officers, possessing neither reasonable suspicion nor probable cause,

may still search a person without a warrant as long as they first obtain the

voluntary consent of the person in question. United States v. Blake, 888 F.2d 795,

Duncan also argues that the district court incorrectly applied a clearly erroneous, instead 1

of de novo, standard of review when reviewing the magistrate’s report. But the court stated that

it had reviewed the report, the transcript of the suppression hearing, and Duncan’s objections: 

hallmarks of de novo review. See United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1

(11th Cir. 2009) (a review of a magistrate’s report to which a specific objection has been made

requires de novo review of the record, instead of a de novo examination of the witnesses) 

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798 (11th Cir. 1989). Whether consent is voluntary is a question of fact to be

determined by the totality of the circumstances; and the government bears the

burden of proving both (1) the existence of consent and (2) that the consent was

voluntary and not an acquiescence to a claim of lawful authority. Id.

Here, the record reveals that police officers knocked on Duncan’s door,

informed him that they had received a complaint that he was selling drugs out of

his home, and asked him if they could search his home. Duncan denied selling

drugs, but told officers they could search his home. An officer then gave Duncan a

consent-to-search form and explained it to him, including that he could refuse to

allow officers to search; Duncan signed the form. No officer threatened Duncan

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and Duncan never asked the police to leave. Based on the totality of these

circumstances and construing the facts in the light most favorable to the

government, we cannot say that Duncan’s consent was involuntary.

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We discern no plain error in Duncan’s argument (raised for the first time on appeal) that 2

the consent-to-search form was invalid on its face because it did not state clearly that a search

warrant supported by probable cause was required to search his home and because the form did

not describe adequately the property to be searched. 

Duncan argues that the district court erred in adopting the magistrate’s credibility 3

determinations because the court relied on impermissible factors in discrediting his testimony,

including Duncan’s self-interest and use of a translator at the suppression hearing. Even if the

district court relied on impermissible factors, any error was harmless. United States v.

Alexander, 835 F.2d 1406, 1411 (11th Cir. 1988) (applying harmless error review in the context

of the denial of a motion to suppress). Internal inconsistencies existed in Duncan’s

testimony and nothing compelled a rejection of the magistrate’s credibility determination, given

that Duncan’s testimony corroborated the officer’s testimony in material respects. See United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (we accept a credibility

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As officers searched Duncan’s home, a drug-sniffing dog alerted to an area

of the kitchen cabinet under the sink. On the countertop, officers found a scale,

several small plastic bags, and a cutting agent. In the cabinet, officers found an

aerosol can wedged between the sink’s pipes. Officers determined that the can had

a false bottom; upon opening the false bottom, officers discovered four ounces of

cocaine in it.

Duncan argues that even if he did consent voluntarily, police officers’ use of

the drug-sniffing dog and opening of the false-bottomed can exceeded the scope of

his consent. We disagree. Officers told Duncan they were bringing in a dog, and

Duncan made no objection. At the suppression hearing, Duncan provided no

testimony that contradicted the officer’s testimony that he consented to the use of

the dog. Officers also made clear that they were searching Duncan’s home because

of a complaint that he was selling drugs, and Duncan consented to this search.

Thus, officers were authorized to search containers that might reasonably contain

drugs. See United States v. Martinez, 949 F.2d 1117, 1120-21 (11th Cir. 1992)

(concluding that permission to conduct a general search for drugs includes

permission to search any compartment or container therein that might reasonably

contain drugs). And given the dog’s alert, the close proximity of the can to drug

determination “unless it is contrary to the laws of nature, or is so inconsistent or improbable on

its face that no reasonable factfinder could accept it”) (citation omitted).

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paraphernalia, and the hidden nature of the can, it was reasonable for officers to

suspect that the can contained drugs.

We now address Duncan’s challenges to the district court’s jury instructions.

Duncan argues that the district court erred in refusing to give an instruction on the

Religious Freedom Restoration Act (“RFRA”) as an affirmative defense to the

section 922(g) charge. We review a district court’s refusal to give a jury

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instruction for an abuse of discretion. United States v. Lee, 68 F.3d 1267, 1273

(11th Cir. 1995).

The question of whether the RFRA applies is a “pure question of law, and is

subject to de novo review.” Lawson v. Singletary, 85 F.3d 502, 511-12 (11th Cir.

1996) (in the civil context). Moreover, the determination of pure questions of law

in criminal cases are not the province of the jury. See United States v. Gauldin,

115 S.Ct. 2310, 2315 (1995). Because application of the RFRA was a question of

law, we conclude that the district court abused no discretion in declining to submit

the issue to the jury. Because the district court properly denied the requested jury

instruction, we need not address Duncan’s arguments about the applicability of the

RFRA.

When officers entered Duncan’s house, they saw -- in plain view -- a gun inside a kettle 4

that was part of a Santeria shrine. Duncan maintained that he was a practitioner of the African

Yoruba religion and possessed the firearm for one of his shrines as part of his religion. He

argues that section 922(g) substantially burdened the exercise of his religion. 

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Duncan also challenges the district court’s denial of a jury instruction on the

lesser included offense of simple possession. He contends that the quantity of

drugs did not preclude finding that the drugs were for personal use. But the

evidence presented at trial indicated that Duncan possessed more than 100 grams

of cocaine (an amount greater than that normally associated with personal use) and

that Duncan possessed drug paraphernalia. See Lee, 68 F.3d at 1273 (no abuse of

discretion in denying simple possession jury instruction when defendant possessed

16 grams of cocaine in his pocket and evidence showed that he sold cocaine to

distributors); United States v. Pirolli, 743 F.2d 862, 863 n.1 (11th Cir. 1984) (no

simple possession instruction where the amount of cocaine -- over one pound --

was “too great for personal use”). Given the large quantity of drugs and the

additional evidence of drug distribution, the court abused no discretion in

concluding that the evidence was inconsistent with simple possession and denying

the lesser-included offense instruction.

AFFIRMED.

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We reject Duncan’s argument that section 922(g) is unconstitutional because the act fails 5

to require proof of a substantial nexus between the offense and interstate commerce. See United

States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (concluding that section 922(g) was a

valid exercise of Congress’s Commerce Clause power as long as the government showed the

minimal nexus that the firearm moved in interstate commerce).

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