[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 13618 Non

- Argument Calendar

________________________ D.C. Docket No. 6:15

- cr - 00390

- KOB

- SGC

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus GERALD WIDEMAN, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Alabama

- Jasper

________________________ ( September 7, 2018 ) Before MARTIN , JILL PRYOR and BLACK , Circuit Judges.
PER CURIAM:

Case: 17-13618 Date Filed: 09/07/2018 Page: 1 of 102 Gerald Widem an appeals his convictions for being a felon in possession of a firearm and for possession of an unregistered firearm. First, Wideman asserts the district court erred by de nying his motion to suppress

. Second, Wideman contends the district court erred by admitting evidence at trial regarding marijuana found growing on his property

. Third, Wideman argues the post

- verdict dismissal of a charge for possessing a firearm with a removed serial number charge resulted in a prejudicial spillover

. Finally, Wideman urges the evidence was insufficient to sustain his convictions. After review, we affirm.
I. DISCUSSION A. Motion to Suppress 1 The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. C ONST
. amend. IV. The exclusionary rule “bars the prosecution from introducing evidence obtai ned by way of a Fourth Amendment violation

. ” See Davis v. United States , 564 U.S. 229, 232 (2011). The exclusionary rule also prohibits the introduction of derivative evidence, or evidence acquired as an indirect result of an unlawful search, up to the point at which the connection with

1 The 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). We accept factual findings as true unless they are clearly erroneous, and review the district court’s interpretation of the law de novo. Id. The facts are construed in the light most favorable to the prevailing party. United States v. Bervaldi , 226 F.3d 1256, 1262 (11th Cir. 2000).

Case: 17-13618 Date Filed: 09/07/2018 Page: 2 of 103 the unlawful search becomes so attenuated as to dissipate the taint of the unlawful search. Murray v. United States , 487 U.S. 533, 537 (1988). The question before us is whether the district court correctly declined to exclude the firearms seized during a search of Wideman’s property. The district court applied th e in dependent source doctrine , which provides that evidence obtain ed from a lawful source that is independent of any Fourth Amendment violation is admissible. Id. at 537

– 38. When a government agent makes a warrantless entry that arguably violates the Fourth Amendment and then relies in part on what he saw during that entry to obtain a search warrant, we apply a two

part test to determine whether evidence seized during the execution of the warrant was discovered independent of th e illegal entry

. United States v. Noriega , 676 F.3d 1252, 1260 (11th Cir. 2012). First, we excise from the search warrant affidavit any illegally gained information, and then we determine whether the remaining information is enough to support a probable cause finding. Id. If the remaining information is enough to support a probable cause finding, the second thing we do is determine whether the officer’s decision to seek a warrant was “prompted by” what he saw during the illegal entry. Id. If the officer would have sought a warra nt even without the illegally obtained information, the evidence seized under the warrant is admissible. Id. at 1261.

Case: 17-13618 Date Filed: 09/07/2018 Page: 3 of 104 Here, the district court correctly determined that the independent source doctrine applied. After the district court excised any illega lly obtained information from the warrant affidavit, the remaining information

— namely, aerial observation of the marijuana plants growing on Wideman’s property

— was sufficient to establish probable cause for the issuance of a search warrant . Second, the di strict court’s factual finding that Agent Wiggins and Sergeant Williams would have sought a search warrant based solely on the information gathered from the aerial observati on is supported by the record. The district court credited the agents’ testimony t hat they would have sought a search warrant based on the aerial observation alone, and nothing in the record conflicts with that conclusion. Accordingly, we affirm the denial of Wideman’s motion to suppress.
B

. Admission of Evidence 2 Second, Wideman contends the district court erred in admitting drug

- related evidence at trial. Relevant evidence is, as a general rule, admissible. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence an d the fact is of consequence in determining th e action. Fed. R. Evid. 401. But Federal Rule of Evidence 403 provides that relevant

2 We review evidentiary rulings for an abuse of discretion. United States v. Thomas , 242 F.3d 10 28, 1031 (11th Cir. 2001).

Case: 17-13618 Date Filed: 09/07/2018 Page: 4 of 105 evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.
T he district court did not abuse its discretion by admitting evidence related to the marijuana plants. In United States v. McLean , 138 F.3d 1398, 1403 (11th Cir. 1998), we held that evidence that pertains to “ the chain of events explaining the co ntext, motive and set

- up of the crime” is admissible if it is “ linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. ” Drug related evidence that is “in sufficiently close proximity, temporally and physically,” to the discovery of charged firearms is “relevant to proving that [a defendant] knowingly possessed the weapons.” United States v. Thomas , 242 F.3d 1028, 1032 (11t h Cir. 2001 ). The marijuana plants on Wideman’s property were in close proximity, both temporally and physically, to the charged firearms discovered in the mobile home and the trailer. The marijuana was discovered on the same day as the charged firear ms. I n excess of 50 marijuana plants were located approximately 3 0 yards from the mobile home , and the mobile home residence was located another 30 yards from the trailer. Nothing in the record indicates that access to the marijuana plants from the mobil e home

Case: 17-13618 Date Filed: 09/07/2018 Page: 5 of 106 and trailer was obstructed by vegetation, fencing, or any other impediment.
T hus, the drug

- related evidence was properly admitted to show Wideman knowingly possessed the charged firearms.
C

. Prejudicial Spillover 3 Dismissal of some counts charged in the indictment does not automatically warrant reversal of convictions reached on remaining counts. United States v. Prosperi , 201 F.3d 1335, 1345 (11th Cir. 2000). Rather, we consider “whether the convictions were the result of prejudicial spillov er: that is, was there evidence (1) that would not have been admitted but for the dismissed charges and (2) that was improperly relied on by the jury in their consideration of the remaining charges.” Id. Here, we proceed to the second step of the inquiry because there is no reason to believe that Sergeant Williams’s testimony opining that the serial number had been obliterated or removed, or that the government’s statement s at closing would have been admissible at trial h ad Count Two not been charged. In evaluating the second step, we consider several factors: (1) “whether the jury meticulously sifted the evidence admitted for all counts”; (2) “whether the contested evidence was inflammatory in nature, and thus liable to prejudice the jury”; (3) “whether

3 A “prejudicial spillover” claim is reviewed for an abuse of discretion. Un ited States v. Hamblin , 911 F.2d 551, 559 (11th Cir. 1990).

Case: 17-13618 Date Filed: 09/07/2018 Page: 6 of 107 admission of the other evidence significantly altered the defendant’s trial strategy”; and (4) “the strength of the evidence against the defendant on the remaining
counts.” Id. at 1346. On balance, n othing i n the record indicates that the evidence admitted in relation to Count Two was improperly relied on by the jury in considering the other charges. First, there is nothing in the record to indicate that the jury did not follow the district court’s instruction that e ach charge and the evidence pertaining to it sho uld be considered separately. The district court further explained that t he fact that the jury may find the d efendant guilty or not guilty as to one of the off enses charged should not affect the verdict a s to a ny other offense charged. Richardson v. Marsh , 481 U.S. 200, 211 (1987) (juries are presumed to follow their instructions). Second, there is no indication that the evidence admitted specific to Count Two altered W ideman’s trial defense strategy. And, fi nally, and the evidence against Wideman on the remaining counts was sufficient to support the jury’s convictions

. Thus, even assuming some of the evidence specific to Count Two was liable to prejudice the jury, the calculus supports the district
court’s c onclusion.

Case: 17-13618 Date Filed: 09/07/2018 Page: 7 of 108 D . Sufficiency of the Evidence 4
W ith regard to the felon

- in

- possession count, the G overnment must prove (1) the d efendant knowingly possessed a firearm; (2) that the defendant was a convicted felon; and (3) that the firearm was in or affecting interstate commerce. United States v. Green , 873 F.3d 846, 852

– 54 (11th Cir. 2017). The G overnment may satisfy the possession prong by showing either actual or constructive possession. United States v. Leonard , 138 F.3d 906, 909 (11th Cir. 1998). To prove actual possession the evidence must show that the defendant must have had either physic al possession of or personal dominion over the thing allegedly possessed. Id. Constructive possession exists when a defendant has ownership, dominion, or control over an object itself or dominion or control over the premises in which the object is concea led. Id. Here, there was sufficient evidence that Wideman had at least constructive
possess ion of the guns found in the trailer and the mobile home. The evidence established that Wideman had dominion and control over the guns located in the mobile hom e because property records established that Wideman acquired the property where the mobile home residence was located in 1983, and a tax record

4 We review challenges to the sufficiency of the evidence supporting a criminal conviction de novo . United States v. Wilchcombe , 838 F.3d 1179, 1188 (11th Cir. 2016). The evidence, viewed in a light most favorable to the government, must be such that a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt. Id. We will not reverse “unless no reasonable trier of fact could find g uilt beyond a reasonable doubt.” United States v. Farley , 607 F.3d 1294, 1333 (11th Cir. 2010).

Case: 17-13618 Date Filed: 09/07/2018 Page: 8 of 109 established that he was the owner of the property at the time of the search; a copy of Wideman’s 2006 felony con viction listed Wideman’s address as 647 Wideman Road, the address where the mobile home residence was located; Wideman drove his car onto the property where the mobile home residence was located on the day of the search; officers located a wallet containin g Wideman’s driver’s license and a package addressed to Wideman dated less than one week before the day of the search inside the mobile home residence; and Wideman purchased one of the charged guns discovered in the mobile home residence himself. Although officers did not discover a key to the trailer on Wideman’s person, the evidence was sufficient to support a finding that Wideman also constructively possessed the guns discovered in the trailer. The trailer was located on Wideman’s property 30 yards

awa y from the mobile home residence where Wideman lived. Additionally, no evidence at trial showed that another person had access to the trailer located on Wideman’s property. Accordingly, the evidence was sufficient to establish that Wideman knowingly poss essed the guns charged in Count One. Section 5861(d) makes it unlawful for any person to “possess a firearm which is not registered to him in the National Firearms Registration and T ransfer Record.” 26 U.S.C. § 5861(d). The term “firearm” is d efined as, among other things, “a shotgun having a barrel or barrels of less than 18 inches in lengt h.” 26 U.S.C. § 5845(a). The G overnment must prove beyond a reasonable doubt that the

Case: 17-13618 Date Filed: 09/07/2018 Page: 9 of 1010 defendant knew that the weapon he possessed had the characteristics that brought it within the statutory definition of a firearm. United States v. Miller , 255 F.3d 128 2, 1286 (11th Cir. 2001). The G overnment is not, however, required to prove that the defendant knew that the firearm in his possession had to be registered

. United
States v. Owens , 103 F.3d 953, 956 (11th Cir. 1997).
In Miller , the defendant argued that there was absolutely no evidence at trial which suggested that he knew that the shotgun he possessed had a barrel of less than 18 inches. Miller , 255 F .3d at 1286. At trial, the G overnment presen ted evidence that the shotgun was 15 1⁄2 inches long. Id. at 1287. A lthough the
G overnment presented no direct evidence that the defendant knew the shotgun’s barrel was shorter than 18 inches, we concluded there was ample circumstantial evidence to support the conclusion that the defendant knew the barrel’s length was less than 18 inches , namely, that the barrel’s length was a patently obvious characteristic readily apparent to anyone who observed the gun. Id. H ere, b ecause both shotguns’ barrel lengths were readily apparent, and less than 18 inches, there was sufficient evidence establishing Wideman guilt y beyond a reasonable doubt.
II. CONCLUSION Accordingly, we affirm. AFFIRMED. Case: 17-13618 Date Filed: 09/07/2018 Page: 10 of 10