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Docket Number

No. 92-4126. Non-Argument Calendar.

Attorney(S)

Lori Barrist, Asst. Federal Public Defender, Miami, FL, for defendant-appellant. Maria A. Franco, Linda Collins Hertz, and Ann M. Hayes, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Judges

Robert Lanier Anderson
Stanley F. Birch
James Clinkscales Hill

Acts

Crimes And Criminal Procedure — Firearms — Crimes — Unlawful Acts
Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Prohibited Acts A
Food And Drugs — Adulterated Or Misbranded Foods Or Drugs — Miscellaneous Provisions — Suspension Of Importation Of Adulterated Articles
Crimes And Criminal Procedure — Firearms — Crimes — Penalties

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Smart Summary

Case Summary: United States v. Booker Birdsong, No. 92-4126 (11th Cir. Feb. 4, 1993) (Per Curiam)

Court: United States Court of Appeals for the Eleventh Circuit. Panel: ANDERSON, BIRCH, and HILL (Senior Circuit Judge). Date: February 4, 1993. Appeal from the United States District Court for the Southern District of Florida.

Factual and Procedural Background

Defendant-Appellant Booker Birdsong appealed his conviction in the District Court for possession of a firearm by a convicted felon (Count II), in violation of 18 U.S.C. § 922(g)(1). He was acquitted in the District Court on Count I (possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2) and Count III (possession of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)).

The appeal raised two principal challenges to the district court's rulings: (1) that the district court erred by denying Birdsong's motion to bifurcate the possession issue from proof of his status as a convicted felon on Count II, and (2) that the district court erred by denying his motion to suppress evidence (ammunition for a 9 millimeter handgun) discovered during a search of his car.

Relevant facts recited by the court in support of the search included: a person matching the defendant's description participated in a drug transaction almost immediately prior to defendant's detainment; the defendant was found standing next to a car for which he had the keys; the defendant admitted the car was his; and the defendant was observed placing a gun on the wheel of the car. Ammunition for a 9 millimeter handgun was found inside the car during a warrantless search.

Legal Issues Presented

Whether the District Court erred by denying the defendant's motion to bifurcate the presentation of evidence on the elements of the offense of possession of a firearm by a convicted felon (i.e., separating proof of possession from proof of felon status).
Whether the District Court erred by denying the defendant's motion to suppress evidence obtained from a warrantless search of the defendant's vehicle (specifically, whether the search was invalid because the defendant was allegedly in custody and any consent was tainted by a failure to give Miranda warnings).

Arguments of the Parties

Appellant's Arguments

On bifurcation: The jury would be prejudiced by hearing the label "convicted felon." Bifurcation would have allowed the jury to consider possession of the firearm before any evidence of the defendant's prior criminal record, thereby avoiding that prejudice.
On suppression: The defendant asserted he was in custody at the time the car was searched and therefore could not validly consent to a search before being read his Miranda rights. He argued that the Fourth Amendment exclusionary rule should apply to the ammunition because (a) no warrantless-search exception applied, and (b) any consent obtained was tainted by the absence of Miranda warnings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Collamore, 868 F.2d 24 (1st Cir. 1989)	Addresses requests to bifurcate presentation of elements of a single offense for possession of a firearm by a convicted felon. Recognizes (1) jurors may be confused or prejudiced if not told all elements or the statute, since possession of a firearm is not ordinarily criminal; and (2) use of special interrogatories to separate elements can unduly guide or hinder jury deliberations.	The Eleventh Circuit expressly adopted the reasoning of Collamore and held that the district court did not err in refusing to bifurcate the elements of the § 922(g)(1) charge.
United States v. Parrado, 911 F.2d 1567 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991)	Establishes that a warrantless search of a vehicle is permitted if (1) there is probable cause to believe the vehicle contains contraband, and (2) exigent circumstances necessitate a warrantless search or seizure. Also holds that officers may conduct a warrantless search of a vehicle even after it is impounded and in police custody once probable cause exists.	The court applied Parrado to conclude that probable cause and exigent circumstances justified the warrantless search of the vehicle in this case; therefore, the validity of any consent was irrelevant and the evidence (ammunition) was admissible.

Court's Reasoning and Analysis

Bifurcation analysis:

The court described a request to bifurcate presentation of evidence on different elements of a single offense as "extremely rare." The court adopted the First Circuit's reasoning in Collamore: separating the elements could produce juror confusion about whether the defendant's conduct was criminal (because possession of a firearm is not generally a crime) and could allow the jurors' doubts about criminality to improperly influence their evaluation of the possession element. Collamore also identified the problem that splitting elements often requires special interrogatories, which can unduly steer or hinder jury deliberations. Based on these considerations, the Eleventh Circuit held that the district court did not err in denying the motion to bifurcate.

Suppression analysis:

The court explained that the validity of defendant's consent to search was immaterial because the search was justified under the vehicle-search exceptions recognized in Parrado. The court recited the two-pronged Parrado test for warrantless vehicle searches: (1) probable cause to believe the vehicle contains contraband, and (2) exigent circumstances necessitating a warrantless search or seizure. The court identified concrete facts supporting probable cause: a person matching the defendant's description had just participated in a drug transaction; the defendant stood next to a car for which he had the keys; he admitted the car was his; and he was observed placing a gun on the wheel of the car. In response to the defendant's contention that no exigency existed because he was in custody and officers had the car keys, the court relied on Parrado's holding that once officers have probable cause to conduct a warrantless vehicle search, they may proceed even after the vehicle is impounded and in police custody. Applying this precedent, the court concluded exigent circumstances were sufficiently present (or at least that the Parrado rule permitted the search despite impoundment/custody), so the warrantless search was lawful and the evidence was admissible.

Holding and Implications

Holding: The Court affirmed the defendant's conviction. The Eleventh Circuit held that the district court did not abuse its discretion in denying the motion to bifurcate the elements of the § 922(g)(1) charge, and that the district court properly denied the motion to suppress because the warrantless search of the vehicle was justified under the probable-cause/exigency principles set forth in Parrado.

Disposition: AFFIRMED.

Implications

The immediate consequence is the affirmation of Booker Birdsong's conviction on Count II and the denial of his motions to bifurcate and to suppress. The opinion applies existing precedent (Collamore and Parrado) rather than announcing a novel rule; it adopts Collamore's reasoning regarding bifurcation and follows Parrado's vehicle-search principles to permit a warrantless search under the circumstances described. The opinion therefore enforces circuit precedent on each contested issue and does not purport to establish a new legal rule beyond those applications.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. BOOKER BIRDSONG, DEFENDANT-APPELLANT.

PER CURIAM:

This case comes before the Court on Defendant/Appellant's appeal from his conviction in the District Court for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count II). Appellant was acquitted on charges of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count I) and possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count III). This appeal presents two issues. First, Appellant contends that the District Court erred in denying the defendant's motion to bifurcate the possession issue from the other elements of the crime charged in Count II. Second, Appellant alleges that the District Court erred in denying the defendant's motion to suppress evidence seized during the search of his car.

Appellant contends that the District Court erred by failing to bifurcate the trial on Count II, possession of a firearm by a convicted felon. Appellant argues that the prejudicial effect of the label "convicted felon" would have been avoided if the District Court had bifurcated Count II so that the jury heard evidence of possession of a firearm before the presentation of any evidence of the defendant's prior criminal record. A request to bifurcate the presentation of evidence on different elements of a single offense is extremely rare. The First Circuit Court of Appeals faced such a request for a charge of possession of a firearm by a convicted felon in United States v. Collamore, 868 F.2d 24 (1st Cir. 1989). In that case, the court granted a motion for writ of mandamus, effectively reversing the District Court's order granting the defendant's motion to bifurcate the elements of a possession of a firearm by a convicted felon charge. The court reasoned:

First, when a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime. The present case is a stark example. Possession of a firearm by most people is not a crime. A juror who owns or who has friends and relatives who own firearms may wonder why [the defendant's] possession was illegal. Doubt as to the criminality of [the defendant's] conduct may influence the jury when it considers the possession element.

Collamore, 868 F.2d at 28. A second problem with bifurcation of the elements of a single offense recognized by the Collamore court is the need to use special interrogatories which can unduly hinder jury deliberations by allowing the trial judge to carefully guide the jury to its conclusion. We specifically adopt the reasoning of the First Circuit in Collamore and hold that the District Court did not err by failing to grant the defendant's motion to bifurcate the trial on the elements of the charge of possession of a firearm by a convicted felon.

The second issue on appeal is whether the District Court properly denied the defendant's motion to suppress the admission of evidence of the ammunition for a 9 millimeter hand gun found inside the defendant's car. Appellant asserts that he was in custody at the time the car was searched and therefore could not properly consent to a search before being read his Miranda rights. Appellant claims that the Fourth Amendment exclusion rule should apply to the ammunition because no warrantless search exception applied and any consent was tainted by failure to give Miranda warnings.

The validity of the defendant's consent is irrelevant in this case, however, because the circumstances of this case demonstrate probable cause and exigency sufficient to justify a warrantless search. "A warrantless search of a vehicle is permitted if (1) there is probable cause to believe the vehicle contains contraband, and (2) there are exigent circumstances which necessitate a warrantless search or seizure." United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991). Here, probable cause to search a vehicle was established because a person matching the defendant's description had participated in a drug transaction almost immediately prior to the defendant's detainment, the defendant was found standing next to a car for which he had the keys, the defendant admitted that the car was his, and the defendant was seen placing a gun on the wheel of the car. Appellant contends that no exigent circumstances existed to justify the warrantless search because he was already in custody and police officers had possession of his car keys at the time of the search. The Parrado court confronted this same argument and held that once law enforcement officers have probable cause to conduct a warrantless search of a vehicle, the officers may conduct the warrantless search even after the vehicle is impounded and in police custody. Parrado, 911 F.2d at 1571. Thus, Appellant's argument is unavailing, and his conviction is AFFIRMED.

U.S. v. BIRDSONG