[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-15126

________________________

D.C. Docket No. 9:12-cr-80032-DMM-1

UNITED STATES OF AMERICA,

Plaintiff-AppelleePlaintiff-Appellee,

versus

JACK BRUCE FOLK,

Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(June 12, 2014)

Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR,

∗ District Judge.

TJOFLAT, Circuit Judge:

 

∗

 The Honorable R. David Proctor, United States District Judge for the Northern District 

of Alabama, sitting by designation.

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2

On July 17, 2012, a jury convicted Jack Bruce Folk, a previously convicted 

felon, of knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1),

1

and pursuant to 18 U.S.C. § 924(e),2 the District Court sentenced him to a 180 

months’ imprisonment and three years’ supervised release. Folk appeals his 

conviction, presenting five arguments for the vacation of his conviction and a new 

trial. None is persuasive, and only three merit discussion here: (1) the District 

Court erred in denying Folk’s motion to suppress two firearms, a 12 gauge semiautomatic shotgun and a .30-.30 caliber lever action rifle, seized during the 

execution of a search warrant at his residence; (2) the District Court erred in 

denying Folk’s challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 

90 L. Ed. 2d 69 (1986), to the prosecution’s exercise of a peremptory strike of a 

 

1 18 U.S.C. § 922(g) provides:

It shall be unlawful for any person––(1) who has been convicted in any court of, a 

crime punishable by imprisonment for a term exceeding one year . . . to ship or 

transport in interstate or foreign commerce, or possess in or affecting commerce, 

any firearm or ammunition; or to receive any firearm or ammunition which has 

been shipped or transported in interstate or foreign commerce. 

2 18 U.S.C. § 924(e) provides:

(1) In the case of a person who violates section 922(g) of this title and has three 

previous convictions by any court referred to in section 922(g)(1) of this title for a 

violent felony or a serious drug offense, or both, committed on occasions different 

from one another, such person shall be fined under this title and imprisoned not 

less than fifteen years, and, notwithstanding any other provision of law, the court 

shall not suspend the sentence of, or grant a probationary sentence to, such person 

with respect to the conviction under section 922(g).

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black veniremember; and (3) the evidence was insufficient to convict.3 We 

consider these three arguments in turn.

I.

A.

The firearms seizure that Folk challenges in this appeal was made by Palm 

Beach County Sheriff’s Office deputies pursuant to a warrant issued by a Palm 

Beach County Circuit Judge. Folk does not challenge the issuance of the warrant. 

Instead, his argument—made first to the District Court and again on appeal—is 

that the seizure was not authorized either under the scope of the search warrant or 

pursuant to the plain view doctrine and therefore that it violated his Fourth 

Amendment rights.4

 He argues that his motion to suppress the firearms should 

have been granted. 

 

3

 The arguments that do not require extended discussion are that (4) the District Court 

erred in admitting various pieces of evidence during the trial; and (5) the District Court’s trial 

errors considered cumulatively denied Folk a fair trial. We find no merit in the fourth argument 

because Folk has not shown that the court abused its discretion in making the challenged 

evidentiary rulings. We find no merit in the fifth argument—based on United States v. Munoz, 

150 F.3d 401, 418 (5th Cir. 1998) (holding that under the cumulative error doctrine “an 

aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless 

errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal”)—

because we find no errors on which to invoke the doctrine. 

4 The Fourth Amendment provides that “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 

violated.” U.S. Const. amend IV. This provision applies to the States under the Due Process 

Clause of the Fourteenth Amendment. Bailey v. United States, __ U.S. __, __, 133 S. Ct. 1031, 

1037, 185 L. Ed. 2d 19 (2013).

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The District Court denied Folk’s motion to suppress following a de novo

review of the Report and Recommendation of the Magistrate Judge to whom it 

referred Folk’s motion. The Magistrate Judge based his recommendation that the 

motion be denied on the language of the warrant and on the testimony of a deputy 

in the Palm Beach Sheriff’s Office, David Vitola, who applied for the warrant and 

was present while it was being executed.5

Vitola testified that during the early months of 2009, he was operating 

undercover as an officer in the Sheriff’s Office Narcotics Division. During that 

time, he made three purchases of Oxycodone––a schedule II narcotic used for the 

relief of moderate to severe pain––from Nicholas Brandow, a seventeen year old 

minor. Nicholas lived with both his mother, Cheryl Brandow, and with Folk at 

15544 86th Road, in Loxahatchee, Florida.6

 Each of the three Oxycodone 

transactions were made just outside of the 86th Road residence, and on at least one 

occasion, Nicholas had to first enter the residence to retrieve the drugs. 

Vitola knew about Folk before he bought the Oxycodone from Nicholas. 

Prior to working in the Narcotics Division, Vitola had been assigned to the Tactical 

 

5

 Vitola was the only witness who testified at the evidentiary hearing the Magistrate 

Judge held on the motion to suppress.

6 Vitola testified that he had been told by a confidential informant that Folk had a 

connection to the Brandow residence. One time when Vitola was there to buy Oxycodone, 

Nicholas Brandow told him that Folk was in the house.

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Unit and had helped investigate the “Safe Boys,” a local gang of which Folk was a 

member. Vitola could recognize Folk, and he knew that Folk was a convicted 

felon.7

 

The search warrant was issued on March 25, 2009, on Vitola’s application. 

The warrant authorized a search of the 86th Road residence and its curtilage in 

order to uncover and seize

evidence or proceeds from the illicit possession, sale and/or 

distribution of Roxicodone and Oxycodone to include:

1) US Currency, financial instruments, bank statements, bank drafts, 

cashiers checks, books, notes, ledgers, receipts, and other evidence of 

financial transactions and related records, relating to the illicit 

possession, sale and/or distribution of controlled substances.

2) Books, papers, cell phones, pagers, cameras, video recorders or 

other electronic media which reflect names, photos, addresses, 

telephone numbers and/or individuals that may be involved in the 

illicit possession, sale and/or distribution of controlled substances.

3) Items used in the packaging or production of narcotics, including 

but not limited to: scales, baggies, and vials, and other items related to 

the illicit purchase, possession, sale manufacture and distribution of 

controlled substances.

4) Items of identification and papers, documents and affects which 

establish dominion and control of premises, including, but not limited 

to, drivers licenses, keys, mail, envelopes, receipts for rent, bills from 

public utilities, photos, address books and similar items. These items 

are relevant to the identity of the possessor of the illicit controlled 

 

7 Vitola’s knowledge that Folk was a convicted felon came from two sources: (1) his 

prior experience working in the Tactical Unit; and (2) detectives in the Property Crimes 

Division. 

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substances, possessor of other items seized, and occupants of the 

premises searched.

The warrant was executed on April 1, 2009. Vitola was a member of the 

search team, but he initially remained outside the residence while the Sherriff’s 

Office SWAT team entered to make a protective sweep. During the sweep, one of 

the SWAT members, Deputy Jairo Gomez, noticed two firearms located in the 

master bedroom closet. Gomez did not disturb the firearms, but he did notify 

Vitola of their location. When Vitola entered the master bedroom looking for 

drugs, he surmised that it was where Folk and Cheryl Brandow slept. Several 

photographs of the two were visible around the room, and six empty pill bottles 

were found: two were prescribed to Cheryl Brandow––both for Oxycodone––and 

four were prescribed to Jack Folk––one for Oxycodone, one for Xanax,8 and two 

for Alprazolam.9

In the master bedroom closet, Vitola observed the firearms Gomez had 

described, a rifle and a shotgun. They were leaning against the right-hand wall 

with the stocks on the floor and the barrels pointed up. He assumed they belonged 

to Folk rather than Cheryl Brandow because they appeared to him “to be more 

hunting, sport-type weapons.” Doc. 74, at 30:8. In and of themselves, the firearms 

 

8 Xanax is psychoactive drug used to treat panic and anxiety disorders.

9 Alprazolam is the generic form of Xanax.

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did not appear to be illegal, but Vitola knew that Folk was a convicted felon who

could not legally possess them. Vitola seized both firearms.

B.

On February 16, 2012, a Southern District of Florida grand jury returned the 

indictment in this case, charging Folk with a violation of 18 U.S.C. § 922(g). 

Following his arraignment, Folk moved the District Court to suppress the firearms 

seized from the master bedroom closet during the search of his residence. Folk 

conceded the warrant’s validity, but he argued that his motion should be granted 

because the warrant did not specifically authorize the seizure of the firearms, that 

nothing in Vitola’s application for the warrant indicated that firearms were present 

in the residence, and that there was nothing inherently illegal about the firearms to

justify their seizure under the plain view doctrine.

In response, the Government argued that the firearms were tools of the drug 

trade, and as such, they fell under the warrant’s authorization to seize “[i]tems used 

in the packaging or production of narcotics.” The Government argued, 

alternatively, that the plain view doctrine authorized the seizure of the firearms 

because Deputy Gomez had observed them in plain view during the protective 

sweep, and the incriminating nature of the firearms was readily apparent to Vitola, 

who knew that Folk was a convicted felon. 

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The Magistrate Judge issued a Report and Recommendation recommending 

that Folk’s motion be denied “based upon the well-recognized connection between 

firearms and drug-related activity.” Doc. 36, at 5. In the Magistrate Judge’s view,

implicit in the text of the warrant––which authorized the seizure of drug-related 

items—was an authorization to seize the firearms. Having reached this conclusion, 

the Magistrate Judge did not consider the Government’s alternative argument for 

denying Folk’s motion—the plain view doctrine. The District Court adopted the 

Magistrate Judge’s recommendation in full and denied Folk’s motion to suppress.

C.

In his brief on appeal, Folks relies on the same arguments he presented to the 

District Court: (1) the firearms were outside the scope of the search warrant; and 

(2) the plain view doctrine did not justify their seizure.

“Review of a district court’s denial of a motion to suppress is a mixed 

question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th 

Cir. 2007). Accordingly, “[w]e review de novo the district court’s application of 

the law to the facts,” and “[w]e review factual findings only for clear error, 

construing all facts in the light most favorable to the prevailing party below.” 

United States v. Bennett, 555 F.3d 962, 964–65 (11th Cir. 2009). 

1.

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First, we consider Folk’s argument that the firearms fell outside the scope of 

the warrant. This circuit has routinely recognized that firearms can be so 

connected to the sale of narcotics that their seizure is implicitly authorized by a 

warrant to search for narcotics. See, e.g., United States v. Prather, 279 Fed. App’x

761, 766 (11th Cir. 2008) (unpublished) (“When law enforcement officers stumble 

across hidden guns during a lawful search for drugs, they are allowed to draw the 

reasonable inference that the guns may be related to drug trafficking occurring at 

the location.”); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990) (“The 

firearms were not improperly seized, though not named in the warrant. They are 

‘tools of the drug trade.’”); United States v. Terzado-Madruga, 897 F.2d 1099, 

1120 (11th Cir. 1990) (“It is uniformly recognized that weapons are often as much 

‘tools of the trade’ as the most commonly recognized narcotics paraphernalia.”); 

United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986) (“Of course, 

numerous cases have recognized that guns are a tool of the drug trade. There is a 

frequent and overpowering connection between the use of firearms and narcotics 

traffic.”). 

Despite this recognized connection between drugs and firearms, the facts in 

this case give us pause. Vitola admitted that he had no suspicion that Nicholas 

Brandow was armed while he engaged in his drug transactions or that he was

storing firearms in his residence. When he saw the firearms, Vitola believed they 

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were probably used for hunting rather than as tools of the drug trade. The small 

scale of Nicholas Brandow’s observed drug transactions further differentiates them

from larger operations, where the ownership and use of firearms can be more 

readily inferred. See United States v. Perez, 648 F.2d 219, 224 (5th Cir. 1981) 

(“[E]xperience on the trial and appellate benches has taught that substantial dealers 

in narcotics keep firearms on their premises as tools of the trade almost to the same 

extent that they keep scales, glassine bags . . ., cutting equipment, and other 

narcotic equipment.”) (emphasis added) (citation omitted) (internal quotation 

marks omitted). 

Ultimately, we need not address whether the search warrant implied 

authorization to seize the firearms because we hold that the seizure was valid under 

the plain view doctrine.10 

2.

Under the plain view doctrine, the warrantless seizure of an item is 

permissible where “(1) an officer is lawfully located in the place from which the 

seized object could be plainly viewed and must have a lawful right of access to the 

object itself; and (2) the incriminating character of the item is immediately 

 

10 Although the District Judge denied Folk’s motion to suppress based on a finding that 

the warrant authorized the seizure of the firearms, “[w]e may affirm the decision of the district 

court on any ground that finds support in the record.” United States v. Campa, 529 F.3d 980,

998 (11th Cir. 2008)). 

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apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006) (citing 

Horton v. California, 496 U.S. 128, 136–37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 

112 (1990)); see also United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 

2001) (explaining that an officer “may seize any contraband, including weapons, in 

plain view”). The seizure of Folk’s firearms satisfied both of these prongs.

First, the shotgun and the rifle––which were inside the master bedroom 

closet––were lawfully observed during the SWAT team’s protective sweep and 

Vitola’s search for narcotics. Folk does not challenge the warrant’s validity or tthe 

deputies’ authority to search the residence for prescription drugs. The SWAT team 

and Vitola, therefore, had the right to conduct a search as “extensive as reasonably 

required to locate the items described in the warrant.” United States v. Jackson, 

120 F.3d 1226, 1228 (11th Cir. 1997); United States v. Waugneux, 683 F.2d 1343,

1352 (11th Cir. 1982). They were permitted “to break open locked containers 

which may contain the objects of the search.” United States v. Martinez, 949 F.2d 

1117, 1120 (11th Cir. 1992); see also Jackson, 120 F.3d at 1229 (finding officers to 

be lawfully present when “in conducting the search, the officers opened the closet 

door and looked inside, finding a firearm instead of [narcotics]”). The master 

bedroom closet certainly qualified as a place where Oxycodone pills might 

reasonably be found––particularly since empty pill bottles with prescription labels 

for Oxycodone, Xanax, and Alprazolam were found in the master bedroom.

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Since Vitola knew that Folk was a convicted felon and reasonably believed 

that the firearms belonged to him, the second prong of the plain view doctrine was 

satisfied. This prong “merely requires that the facts available to the officer would 

warrant a man of reasonable caution in the belief that certain items may be 

contraband.” Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543 , 75 L. 

Ed. 2d 502 (1983) (citation omitted) (internal quotation marks omitted). A firearm 

that reasonably appears to be in the possession of a convicted felon qualifies as 

contraband––and is therefore subject to seizure under the plain view doctrine.11 

See United States v. Williams, 289 F. App’x 868, 871 (6th Cir. 2008) 

(unpublished) (“The weapon was subject to seizure for the further reason that the 

officers knew from previous dealings that Williams was a felon.”); United States v. 

Wells, 98 F.3d 808, 810 (4th Cir. 1996) (“Furthermore, the evidence from the prior 

criminal records review indicating that Wells had a previous felony conviction was 

sufficient to provide probable cause to believe that the firearm constituted evidence 

of a § 922(g) offense.”). Here, Vitola was justified in reasonably believing that the 

 

11 Many district court decisions in this circuit have explicitly recognized the contraband 

nature of a firearm in the possession of a convicted felon. See, e.g., United States v. Holt, No. 

2:08–cr–38–FtM–29DNF, 2008 WL 5191472, at *5 (M.D. Fla. Dec. 10, 2008), aff’d, 408 F. 

App’x 229 (11th Cir. 2010) (“The affiant knew defendant was a convicted felon, and had been 

told by the state that his rights had not been restored. Therefore, defendant’s possession of the 

firearms was unlawful. Since the officers were at a place they were lawfully entitled to be, 

looked in a place where items identified in the Search Warrant could be found, and the 

incriminating nature of the firearms was immediately apparent, the firearms could be seized.” 

(citation omitted)).

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firearms belonged to Folk. He had been told by both a fellow officer and by 

Nicholas Brandow himself that Folk resided in the home where the guns were 

found. He could recognize Folk’s face, and he noticed that there were pictures of 

Folk in the master bedroom––which was connected to the closet containing the 

firearms. Moreover, there were four prescription pill bottles bearing Folk’s full 

name strewn across the master bedroom. It was therefore reasonable for Vitola to 

treat the firearms as facially contraband and to seize them under the plain view 

doctrine.

Because both prongs of the plain view doctrine were satisfied in this case, 

the District Court did not err in denying Folk’s motion to suppress. 

II.

We next address Folk’s argument that the government’s exercise of a

preemptory strike of Juror 21––an African-American12––violated Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which recognizes 

that, under the Equal Protection Clause, a criminal defendant has the “right to be 

tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” 

Id. at 85–86, 106 S. Ct. at 1717. Batson and its progeny have established a three-

 

12 Although Folk is not African-American himself, “a criminal defendant may object to 

race-based exclusions of jurors effected through peremptory challenges whether or not he 

defendant and the excluded juror share the same races.” Powers v. Ohio, 499 U.S. 400, 402, 111 

S. Ct. 1364, 1366, 113 L. Ed. 2d 411 (1991). 

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step inquiry to evaluate whether a prosecutor’s use of peremptory strikes runs afoul 

of this constitutional right. The Supreme Court summarized this inquiry in MillerEl v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003):

First, a defendant must make a prima facie showing that a peremptory 

challenge has been exercised on the basis of race. Second if that 

showing has been made, the prosecution must offer a race-neutral 

basis for striking the juror in question. Third, in light of the parties’ 

submissions, the trial court must determine whether the defendant has 

shown purposeful discrimination.

Id. at 328–29, 123 S. Ct. at 1035 (citations omitted).

Here, Folk objected to the prosecution’s use of a peremptory challenge on 

Juror number 21, Daniel Thomas. In evaluating whether the prosecution’s use of a 

peremptory challenge against Thomas violated Folk’s constitutional rights, we 

begin by reviewing the relevant facts. 

Thomas was one of three black veniremembers, along with Jeffrey Thegg 

and Tara Hill. Thegg was seated on the jury, and while the prosecution also used a 

peremptory challenge against Hill, Folk concedes that there were “clear reasons” 

for doing so.13 

 

13 During the questioning of the veniremembers, the prosecution asked whether anyone 

“believes that people should be allowed to go and have guns to defend themselves regardless of 

whether they’ve been convicted of a felony.” In response, Hill said that she “fe[lt] like it’s okay 

for him to carry a firearm to defend himself” because she worried about how convicts could 

protect themselves in situations such as home invasions. When questioned further, she claimed 

that she could apply the law fairly in rendering a verdict despite her personal beliefs.

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During the court’s voir dire of the veniremembers, Thomas indicated that he 

had a relative who had been charged with a crime. When the court followed up 

with further questions, Thomas indicated that his family member had been charged 

with a similar offense for which Folk was on trial:

THE COURT: All right. And you said you also had a family member 

that had been charged with a crime. Was that state or federal court?

THOMAS: It was state.

THE COURT: How long ago?

THOMAS: How long?

THE COURT: Yes.

THOMAS: I’d probably say like two years ago.

THE COURT: Is there anything about what happened to your family 

member that makes you worry whether you could be fair as a juror?

THOMAS: Well, he was on probation for a firearm.

THE COURT: All right. Well, how do you feel about it? Do you think 

you can serve as a juror?

THOMAS: Yes.

THE COURT: Or will you be worrying about what happened to your 

family member?

THOMAS: I can be a juror.

After the court’s voir dire, neither the prosecution nor Folk’s attorney questioned 

Thomas directly. Indeed, he was not mentioned again until the prosecution chose 

to use a peremptory challenge to remove him. In response, Folk raised a Batson

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challenge, claiming that Thomas was being struck on the basis of race, and the

judge asked the prosecution to give its reasons for striking Thomas. In response, 

the prosecution answered: 

Well, Your Honor, as the Court has already noted, we did not move to 

strike Geoffrey Thegg, Juror No. 3, who is African American as well, 

so I don’t think that they’ve established a pattern and practice of 

striking African American jurors. To the extent that they’re 

complaining about it, I would note that he has—he had a friend who is 

on multiple years’ probation. Apart from the fact, Judge, that I could 

barely hear the man to begin with, but he indicated that he had a 

friend on criminal justice sanctions.

The court ruled that it would “accept the reason,” without explicitly noting whether 

Folk had made even made a prima facie showing that the prosecution had 

exercised a peremptory challenge on the basis of race. Applying these facts to the 

three-step Batson inquiry articulated above, we find that the trial judge did not err 

in rejecting Folk’s Batson challenge. 

First, it is unclear whether Folk made a prima facie showing that Thomas 

was struck on the basis of his race. Batson held that “a ‘pattern’ of strikes against 

black jurors . . . might give rise to an inference of discrimination.” 476 U.S. at 97, 

106 S. Ct. at 1723 (emphasis added). Also, situations where there is a “total or 

seriously disproportionate exclusion of [African-Americans] from jury venires” 

can be so egregious as “to show intentional discrimination.” Id. at 93, 106 S. Ct. at 

1721 (internal quotation marks omitted). 

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The facts here do not demonstrate a facially discriminatory pattern of 

striking black members from the potential jury pool. Thomas was one of only 

three black veniremembers, and one of these three was ultimately seated on the 

jury. The striking of two out of three black veniremembers does not demonstrate a 

pattern of discrimination––particularly since Folk concedes that there were “clear 

reasons” for striking Hill from the prospective juror pool. And this is not a 

situation where there was a systematic plan to eliminate black jurors from a pool of 

veniremen. Compare Adkins v. Warden, 710 F.3d 1241, 1255 (11th Cir. 2013) 

(“[T]he state here used peremptory strikes to exclude nine of eleven potential black 

jurors, resulting in a strike rate of eighty-two percent.”).

Even if Folk made a prima facie showing of discrimination, however, he has 

failed to show that the prosecution did not proffer a nondiscriminatory and sincere 

reason for striking Thomas. Notably, these are two separate inquiries under 

Batson’s three-part test. Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 

1771, 131 L. Ed. 2d 834 (1995) (“The Court of Appeals erred by combining 

Batson’s second and third steps into one, requiring that the justification tendered at 

the second step be not just neutral but also at least minimally persuasive . . . .”). 

First, we must ask whether the reasons tendered by the prosecution for 

striking Thomas are nondiscriminatory on their face. Id. at 767–68, 115 S. Ct. at 

1771 (“The second step of [Batson] does not demand an explanation that is 

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persuasive, or even plausible. . . . Unless a discriminatory intent is inherent in the 

prosecutor’s explanation, the reason offered will be deemed race neutral.” (internal 

quotation mark omitted)). Here, the State gave two reasons for striking Thomas 

from the jury pool: (1) the prosecutor had trouble hearing Thomas’s answers 

during voir dire; and (2) Thomas had a friend who was on multiple years’

probation. Neither of these reasons inherently implicate Thomas’s race, and 

therefore both reasons satisfy the second step of Batson’s three-step inquiry.

The only remaining question is, therefore, whether the stated reasons for 

making a peremptory challenge were sincere. The trial judge’s decision on this 

“ultimate question of discriminatory intent . . . represents a finding of fact of the 

sort accorded great deference on appeal.” Greene v.Upton, 644 F.3d 1145, 1155 

(11th Cir. 2011) (internal quotation mark omitted). We see no reason to second 

guess the trial judge’s evaluation of the prosecution’s honesty, particularly given 

the record’s support for the second reason proffered by the prosecution—Thomas 

did testify during voir dire that he had a friend who was on probation for a crime 

similar to the one for which Folk was being prosecuted. Cf. Adkins, 710 F.3d at 

1253 (finding the trial judge erred in denying a Batson challenge when the 

“specific proffered reasons provided by the prosecutor were contradicted by the 

record”). 

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Because Folk has failed to demonstrate that the prosecution acted in a 

discriminatory manner by striking Thomas from the venire, we hold that the 

District Court did not err in denying his Batson challenge.

III.

Finally, Folk argues that the evidence at trial was insufficient to support his 

conviction for knowingly possessing a firearm in violation of 

18 U.S.C. § 922(g)(1). In order to prove this offense, the prosecution must 

establish, beyond a reasonable doubt, that: (1) the defendant had previously been 

convicted of a felony; (2) the defendant knowingly possessed a firearm; and (3) the 

firearm traveled in or affected interstate commerce. United States v. Wright, 392 

F.3d 1269, 1273 (11th Cir. 2004). Folk concedes that he was a convicted felon at 

the time of his trial, but he argues that the prosecution failed to demonstrate that he 

knowingly possessed the firearms or that the firearms were involved in interstate 

commerce. 

In reviewing Folk’s argument “we must view the evidence in the light most 

favorable to the government, and we are required to affirm appellant’s conviction 

unless, under no reasonable construction of the evidence, could the jury have found 

appellant guilty beyond a reasonable doubt.” United States v. Gonzalez, 71 F.3d 

819, 834 (11th Cir. 1996) (citations omitted). Here, we find that the evidence 

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supporting both contested elements––knowing possession and movement in 

interstate commerce––was overwhelming. 

A.

At trial, testimony from the prosecution’s witnesses established the narrative 

of how Folk first took possession of both firearms that were found in his residence. 

Around 2005, Jack Folk began dating Amber James. The two moved in together, 

and they had son named Mason. Ms. James’s father—Robert James—was an avid 

deer hunter, and he kept several firearms in a wooden gun cabinet with glass 

windows in his home. Sometime in 2006 or early 2007, Robert James began to 

feel uncomfortable having his grandson around this gun case, which he saw as 

insecure. He decided to replace it with a steel gun safe and to give the wooden gun 

cabinet to Folk. Among Robert James’s many guns was the .30-.30 lever action 

rifle at issue in this case. The lever on the rifle was broken, and James decided to 

give this rifle to Folk along with the wooden gun case. 

In June 2007, Folk first met Cheryl Brandow while he was still living with 

Amber James. The two hit it off, and Folk moved in with Brandow in July. While 

the two were living together, Brandow decided to give Folk—as a birthday 

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present—gift cards amounting to around $200.14 On October 21, 2007, Folk and 

Brandow took these gift cards to a Bass Pro Shop.15 There, Brandow purchased a 

12 gauge semi-automatic shotgun, using the gift certificates that she had given 

Folk as a birthday present. Brandow bought the shotgun under her name because 

Folk was already a convicted felon and could not personally purchase them. 

Pursuant to Florida’s waiting period for firearm purchases, Brandow was unable to 

take physical possession of the shotgun until November 1, 2007. On that date, 

Folk again accompanied Brandow to the Bass Pro Shop where she retrieved the 

firearm. Once the two returned home, Brandow gave the shotgun to Folk who 

thanked her for it. Folk routinely took this shotgun on hunting trips with friends, 

and although the shotgun remained registered under Brandow’s name, she never 

fired it or accompanied Folk when he used it for hunting.

At some point prior to 2009, Folk brought both the rifle that he had received 

from Robert James and the shotgun he had received from Brandow to the home of 

 

14 Ms. Brandow and Folk had a brief falling out in 2007, and Folk temporarily moved 

back in with Amber James. During this time, the gift cards remained in the possession of 

Brandow, and she returned them to Folk once the two reunited and were again living together.

15 The Bass Pro Shop was located slightly south of Fort Lauderdale, about an hour and 

fifteen minutes from Brandow and Folk’s residence.

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his uncle––Mark Farley––for safe keeping.16 On March 23, 2009, Folk was 

apprehended by Palm Beach deputies on a crime unrelated to his possession of 

these two firearms. 

While he was in jail, Folk’s phone conversations were recorded, and after 

the firearms were seized from his residence, these conversations were reviewed by 

police officers.17 During the trial, the prosecution introduced recordings of these 

phone calls to demonstrate that—even from jail—Folk continued to assert

ownership over both the rifle and the shotgun. First, when Folk learned that 

Cheryl and Nicholas Brandow were having financial difficulties, he instructed 

them to sell these firearms in order to free up some cash. On March 25, 2009, 

during a conversation with Cheryl Brandow, Folk asked to speak with his friend 

John—who was in the room with Brandow—to “see if he can sell all my tools and 

my guns” so that Cheryl and Nicholas “can get a little money or something so.” 

When Cheryl Brandow put John on the phone, Folk told him, “I’ve got, I’ve got 

 

16 At sentencing there was evidence introduced that Folk had actually brought a third 

firearm to Farley as well––a .22 rifle––but this gun was never mentioned during trial and Folk 

was never charged for its possession.

17 Although the police never obtained a warrant to record or monitor these calls, they did 

not violate Folk’s Fourth Amendment rights. During the earliest conversation introduced at trial,

Cheryl Brandow told Folk that “[the police] have been listening on our phone.” In response, 

Folk simply said “Yeah.” Clearly, Folk had “neither a subjective, or objectively reasonable, 

expectation of privacy with regard to his calls from the jailhouse.” See United States v. Garrett, 

388 Fed. App’x 888, 891 (11th Cir. 2010).

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um them two guns. I’ve got a .30-.30, and I got my shotgun. See if [my friend] Bo 

wants to buy those.” The following day, March 26, Folk again told Brandow, 

“[W]hatever you can see just sell it like, um tell Bo that I got a .30-.30 with a 

scope, and I got my shotgun that he can get for like four or five hundred bucks. I’ll 

get, I’ll get it back from him when I get out.” Later that day, he told Nicholas 

Brandow, “If your mom don’t remember, I got a .30-.30 with a . . . scope and I got 

a shotgun, I want 500 bucks for ‘em both.” 

Folk’s jail conversations also demonstrated that he could still command his 

uncle Mark Farley––who had actual possession of the guns––to disgorge the 

weapons. For example, on March 29, Cheryl Brandow told Folk that when she had 

sent one of Folk’s friends to pick “the um, things from [Farley],”18 he had resisted 

saying that Folk never told him to turn them over. In response, Folk assured

Brandow saying, “I mean I can call him to release them to you if you want, that’s 

not a problem. I’ll call him.” Only fifteen minutes later, Folk spoke with Farley 

and told him, “Just, can you do this, can you do this for me right now, bro? Please 

can you go over there and give her the shotgun and the .30–30.” Farley agreed 

 

18 At the trial, Cheryl Brandow admitted that she was referring to the rifle and the 

shotgun when she said “things.” She and Folk had begun speaking in code based on their fear of 

having their conversations monitored. The rest of the conversation corroborated this testimony 

as Cheryl Brandow said that “one is a birthday gift from me to you” which almost certainly 

referred to the shotgun she had purchased for him at the Bass Pro Shop.

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saying, “Hell yeah. I’ll take it over there right now.” That same day, Farley did in 

fact deliver both the rifle and the shotgun to Cheryl Brandow.

This evidence is sufficient to show that Folk knowingly possessed both the 

rifle and the shotgun found at his residence. Although he was currently 

incarcerated at the time that the warrant was executed, “any firearm possession, 

actual or constructive, by a convicted felon is prohibited by law.” United States v. 

Howell, 425 F.3d 971, 977 (11th Cir. 2005). “To establish constructive 

possession, the government must prove ‘ownership, dominion, or control’ over the 

firearm.” United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006) (quoting 

United States v. Ferg, 504 F.2d 914, 916 (5th Cir. 1974)). Here, a reasonable jury 

could find that Folk knowingly had constructive possession of both the shotgun 

and the rifle. Both were given to Folk personally, and he continued to control their 

movements until they were seized from his residence on April 1, 2009.

B.

The evidence presented at trial was also sufficient to demonstrate that the 

firearms moved in interstate commerce. A detective with the Palm Beach County 

Sheriff’s Office, Steven Barborini, testified on this issue. Before Folk’s trial, he 

had testified well over a hundred times in federal and state court regarding the 

manufacture of firearms and their relationship to interstate commerce. Without 

objection by Folk, the court declared Barborini an expert in the interstate 

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commerce movements of firearms and ammunition. Barborini thereafter testified 

that the markings and serial numbers imprinted on the firearms––as required by 

federal law––indicated where they were manufactured. Based on these markings 

and numbers, Barborini said that the shotgun was manufactured in Turkey––

imported via Nevada––and that the lever action rifle was manufactured in 

Connecticut. 

A reasonable jury could rely on Barborini’s testimony in concluding that the 

firearms had moved in interstate commerce. The interstate nexus element of 18 

U.S.C. § 922(g) can be established by showing that the firearm was manufactured 

in a different state from the one in which it was ultimately possessed by the 

defendant. United States v. Clay, 355 F.3d 1281, 1287 (11th Cir. 2004) (“We have 

stated that a weapon which was seized in Florida and ‘bore an imprint indicating 

that it had been manufactured in Atlanta’ gave a ‘clear indication of interstate 

commerce.’” (quoting United States v. Brantley, 68 F.3d 1283, 1288 (11th Cir. 

1995))). Such a showing can come from the testimony of an expert witness. See

United States v. Scott, 263 F.3d 1270, 1274 (11th Cir. 2001). Here, Barborini’s 

testimony was sufficient for the jury to conclude, beyond a reasonable doubt, that 

both the shotgun and the rifle had traveled in interstate commerce.

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IV.

The District Court did not err in denying either Folk’s motion to suppress the 

firearms seized from his residence or his Batson challenge to the prosecution’s 

peremptory strike of veniremember Thomas. And the evidence presented to the 

jury was sufficient to support Folk’s conviction under 18 U.S.C. § 922(g). Folk’s 

remaining allegations of error are without merit. The judgment of the District 

Court is, accordingly,

AFFIRMED.

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