United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004). · Go Syfert
United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004). Cases Citing This Book View Copy Cite
“under tenth circuit precedent, where the defendant in a joint occupancy situation has knowledge of and access to the weapons, there is a sufficient nexus to infer dominion or control.”
175 citation events (174 in the last 25 years) across 17 distinct courts.
Strongest positive: Allen Dwayne Bates v. Elizabeth Ann Brown (texapp, 2015-12-17) · Strongest negative: United States v. Arciniega-Zetin (ca10, 2019-01-10)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 50 distinct citers.
discussed Abrogated United States v. Arciniega-Zetin
10th Cir. · 2019 · confidence high
Until then, our leading circuit authority on this point, United States v. Colonna, had rejected any requirement that the government prove intent to exercise dominion or control over an object. 360 F.3d 1169 , 1178–79 (10th Cir. 2004), abrogated by Henderson, 135 S. Ct. at 1784 .
discussed Abrogated United States v. Martinez
10th Cir. · 2018 · signal: compare · confidence high
Compare Little, 829 F.3d at 1182 (“[C]onstructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object.”), with United States v. Colonna, 360 F.3d 1169 , 1178–79 (10th Cir. 2004) (concluding that intent to exercise control over contraband isn’t required to prove constructive possession), abrogated by Henderson, 135 S. Ct. at 1784 .
discussed Cited as authority (verbatim quote) Allen Dwayne Bates v. Elizabeth Ann Brown
Tex. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
however, a misstatement in an affidavit that is merely the result of simple negligence or inadvertence . . . does not invalidate a warrant.
discussed Cited as authority (verbatim quote) United States v. Exom (2×) also: Cited "see"
10th Cir. · 2014 · signal: see · quote attribution · 1 verbatim quote · confidence high
under tenth circuit precedent, where the defendant in a joint occupancy situation has knowledge of and access to the weapons, there is a sufficient nexus to infer dominion or control.
discussed Cited as authority (verbatim quote) United States v. Faulkner (2×) also: Cited as authority (rule)
D. Kan. · 2004 · quote attribution · 1 verbatim quote · confidence high
vague and concluso-ry allegations of prejudice resulting from the passage of time are insufficient to constitute a showing of actual prejudice for purposes of preindictment delay.
discussed Cited as authority (rule) United States v. Murphy
10th Cir. · 2024 · confidence medium
Thus, we have held that the identified delay must prejudice the defendant’s “substantial rights,” and the defendant’s claims of prejudice must be “definite,” not “speculative” or “[v]ague and conclusory.” Garcia, 74 F.4th at 1097, 1099 (quoting United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir. 2004), overruled on other grounds by Henderson v. 45 Appellate Case: 22-7021 Document: 010111044963 Date Filed: 05/07/2024 Page: 46 United States, 575 U.S. 622 (2015)); see also United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006) (“Vague and conclusory allegati…
discussed Cited as authority (rule) United States v. Jenkins
10th Cir. · 2020 · confidence medium
In United States v. Colonna, 360 F.3d 1169, 1173, 1175 (10th Cir. 2004), overruled on other grounds by United States v. Little, 829 F.3d 1177 (10th Cir. 2016), the defendant argued that evidence a deputy found during a single trash pull—“two burnt roach ends of suspected marijuana cigarettes, a ‘twist’ torn from the corner of a plastic baggie, a plastic baggie with a corner torn from it, and an empty container of Zig Zag cigarette papers”—showed “only personal use of marijuana by someone in the residence[.]” He asserted “that personal use alone does not justify the search of …
discussed Cited as authority (rule) United States v. Orozco
10th Cir. · 2019 · confidence medium
Factual findings can be found clearly erroneous if “they have no basis in the record,” id., or if this court “is left with the definite and firm conviction that a mistake has been committed.” United States v. Lopez, 372 F.3d 1207 , 9 1210 (10th Cir. 2004) (quoting United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir. 2004)).
discussed Cited as authority (rule) United States v. Benford (2×)
10th Cir. · 2017 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004), overruled on other grounds by United States v. Little, 829 F.3d 1177 (10th Cir. 2016).
discussed Cited as authority (rule) Francis D. Schmitz v. Honorable Gregory A. Peterson
Wis. · 2015 · signal: cf. · confidence medium
Cf. United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (upholding a nighttime search because of the defendant's "prior extensive involvement with law enforcement, the expressed fear of a concerned citizen that [the defendant] would retaliate violently, and the presence of children in the vicinity" during the daytime).
discussed Cited as authority (rule) Three Unnamed v. Gregory A. Peterson
Wis. · 2015 · signal: cf. · confidence medium
Cf. United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (upholding a nighttime search because of the defendant's "prior extensive involvement with law enforcement, the expressed fear of a concerned citizen that [the defendant] would retaliate violently, and the presence of children in the vicinity" during the daytime).
discussed Cited as authority (rule) State Ex Rel. Two Unnamed v. Peterson (2×)
Wis. · 2015 · signal: cf. · confidence medium
Cf. United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (upholding a nighttime search because of the defendant's "prior extensive involvement with law enforcement, the expressed fear of a concerned citizen that [the defendant] would retaliate violently, and the presence of children in the vicinity" during the daytime).
discussed Cited as authority (rule) Araiza-Calzada v. Webb's Seafood, Inc.
N.D. Fla. · 2014 · confidence medium
This was apparent from Congress’s choice to add an additional definition of “agricultural employees.” Indeed, “Congress intended to expand the definition of ‘agriculture’ and ‘agricultural employment’ to include activities, regardless of their location, not previously covered by the FLCRA.” Morante-Navarro, 360 F.3d at 1169.
cited Cited as authority (rule) United States v. Morales
10th Cir. · 2014 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
cited Cited as authority (rule) United States v. Ramsey
10th Cir. · 2013 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Tucker
10th Cir. · 2012 · signal: cf. · confidence medium
Cf. United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004) ("[A] mere allegation that defendant would have a better chance of acquittal in a separate trial is not sufficient to warrant severance.” (alteration in original) (quoting United States v. Powell, 982 F.2d 1422, 1432 (10th Cir.1992)) (internal quotation marks omitted)). 6 .
discussed Cited as authority (rule) Ernst v. City of Eugene (2×) also: Cited "see"
D. Or. · 2012 · confidence medium
See Bynum, 362 F.3d at 580-81 (finding a “particularized fear of danger” to justify a forced entry where the defendant “had at least one readily accessible firearm” and previously had displayed firearms to police, including a “chambered semi-automatic pistol” while “wearing only a pair of socks”; Colonna, 360 F.3d at 1176 (finding a nighttime SWAT search reasonable where the suspect had been aggressive toward officers and arrested for strong arm robbery, aggravated assault, assault on a police officer, resisting arrest, aggravated robbery with a firearm, and terroristic threats…
discussed Cited as authority (rule) United States v. Hoyle
10th Cir. · 2012 · confidence medium
Mr. Hoyle was charged with and tried for a violation of 18 U.S.C. *1163 § 922(g)(1), which makes it unlawful for any convicted felon to “possess in or affecting commerce, any firearm or ammunition.” When trying a defendant for a violation of § 922(g)(1), the government bears the burden of proving the following beyond a reasonable doubt: “(1) that the defendant was previously convicted of a felony; (2) that the defendant thereafter knowingly possessed a firearm or ammunition; and (3) that the possession was in or affecting interstate commerce.” United States v. Colonna, 360 F.3d 1169,…
discussed Cited as authority (rule) United States v. Madden (2×)
10th Cir. · 2012 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir.2004); United States v. Comosona, 848 F.2d 1110, 1113 (10th Cir.1988).
cited Cited as authority (rule) United States v. Koch
10th Cir. · 2011 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir.2004).
discussed Cited as authority (rule) United States v. McDuffy
7th Cir. · 2011 · confidence medium
United States v. Billian, 600 F.3d 791, 794 (7th Cir.2010) (noting that small quantities of marijuana in trash indicated that there was marijuana in house, not that the small quantities were all that defendant had possessed); United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir.2004) (affirming denial of motion to suppress where warrant was based in part on discovery of two burnt ends of marijuana cigarettes in trash); see also People v. Balsley, 329 Ill.App.3d 184 , 263 Ill.Dec. 951 , 769 N.E.2d 153, 155, 157 (2002) (reversing grant of motion to suppress; tiny quantities of marijuana in tr…
cited Cited as authority (rule) United States v. Thompson
10th Cir. · 2010 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1173 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Blount
7th Cir. · 2010 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir.2004); see also United States v. Perdoma, 621 F.3d 745, 749 (8th Cir.2010) (finding probable cause to arrest when officer traced odor of marijuana to defendant); United States v. Humphries, 372 F.3d 653, 659 (4th Cir.2004) (same).
discussed Cited as authority (rule) United States v. Reginald L. Blount
7th Cir. · 2010 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir. 2004); see also United States v. Perdoma, 621 F.3d 745, 749 (8th Cir. 2010) (finding probable cause to arrest when officer traced odor of marijuana to defendant); United States v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004) (same).
discussed Cited as authority (rule) United States v. Martin
10th Cir. · 2010 · confidence medium
I A Reviewing the facts in the light most favorable to the government (as we must given that it prevailed before the district court, see, e.g., United States v. Colonna, 360 F.3d 1169, 1173 (10th Cir.2004)), they tell us this much.
cited Cited as authority (rule) United States v. Stanley
10th Cir. · 2010 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Howard
10th Cir. · 2010 · confidence medium
We accept the district court’s factual findings unless they are clearly erroneous, although the ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo.” United States v. Colonna, 360 F.3d 1169, 1173 (10th Cir.2004) (citation omitted).
cited Cited as authority (rule) Campos-Guel v. United States
10th Cir. · 2009 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1176-77 (10th Cir. 2004).
cited Cited as authority (rule) United States v. Moore
10th Cir. · 2009 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Barros
10th Cir. · 2009 · confidence medium
At best, he has shown the police officer who drafted the warrant was sloppy and mistakenly used the word “defendant” in place of “suspect” or “robber.” The misuse of language came from Thacker’s inexperience, not malice or unbridled zeal. “[A] misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, does not invalidate a warrant.” United States v. Colonna, 360 F.3d 1169, 1174 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Frost
10th Cir. · 2009 · confidence medium
To prove a violation of § 922(g)(1), “the government must establish the following elements beyond a reasonable doubt: (1) that the defendant was previously convicted of a felony; (2) that the defendant thereafter knowingly possessed a firearm or ammunition; and (3) that the possession was in or affecting interstate commerce.” United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Hunt
10th Cir. · 2009 · confidence medium
We have specifically held that “[a] mere allegation that defendant would have a better chance of acquittal in a separate trial is not sufficient to warrant severance.” United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004) (quotation omitted).
cited Cited as authority (rule) United States v. Gonzales
10th Cir. · 2008 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Watters
10th Cir. · 2007 · confidence medium
It is not necessary to show that the defendant actually owned the weapons — mere possession is enough.” Ledford, 443 F.3d at 714 (citing United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.2004)).
discussed Cited as authority (rule) United States v. Jameson
10th Cir. · 2007 · confidence medium
We have held that “knowledge and access are required to prove that [a] defendant knowingly held the power to exercise dominion and control over [a] firearm.” United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Burnett, Michael
7th Cir. · 2007 · confidence medium
Because the mere possession of marijuana is a crime in Indiana, see id. § 35-48-4-11, probable cause supported the issuance of the search warrant, see United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir.2004) (stating that personal-use amount of marijuana found in residence’s trash justified search warrant).
discussed Cited as authority (rule) United States v. Ortega
10th Cir. · 2006 · confidence medium
In reviewing the sufficiency of the evidence to support a conviction, “we review the record de novo to determine whether, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
discussed Cited as authority (rule) Carson v. Ward
10th Cir. · 2006 · confidence medium
In reviewing the sufficiency of the evidence to support a conviction, we must determine “whether, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
cited Cited as authority (rule) United States v. Soukchanh
10th Cir. · 2006 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
examined Cited as authority (rule) United States v. Jimenez (6×) also: Cited "see"
10th Cir. · 2006 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004); 18 U.S.C. § 922 (g)(1).
cited Cited as authority (rule) United States v. Martinez
10th Cir. · 2006 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1176-77 (10th Cir. 2004), cert. denied, 543 U.S. 823 (2004).
cited Cited as authority (rule) United States v. Martinez
10th Cir. · 2006 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1176-77 (10th Cir.2004), cert. denied, 543 U.S. 823 , 125 S.Ct. 37 , 160 L.Ed.2d 34 (2004).
cited Cited as authority (rule) United States v. Hartman
10th Cir. · 2006 · confidence medium
United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir.2004).
cited Cited as authority (rule) United States v. Al-Rekabi
10th Cir. · 2006 · confidence medium
Ledford, 443 F.3d at 714 (citing United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.2004)) (reconciling our cases).
cited Cited as authority (rule) United States v. Ruiz
10th Cir. · 2006 · confidence medium
United States, v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004).
discussed Cited as authority (rule) United States v. Michel
10th Cir. · 2006 · confidence medium
In order to prove Mr. Michel had constructive possession of the gun, the government was required to show some sort of nexus between Mr. Michel and the gun, and that he “knowingly held the power to exercise dominion and control over the firearm.” United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.2004) (citing United States v. Gorman, 312 F.3d 1159, 1164 (10th Cir.2002)).
discussed Cited as authority (rule) United States v. Ruben Dean Ledford (2×) also: Cited "see"
10th Cir. · 2006 · confidence medium
The district court provided a draft of the possession instruction containing “and the intention,” to which the government objected under United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.), cert. denied, 543 U.S. 823 , 125 S.Ct. 37 , 160 L.Ed.2d 34 (2004).
discussed Cited as authority (rule) United States v. Gary (2×)
E.D. Va. · 2006 · signal: cf. · confidence medium
Cf. United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir.2004) (evidence obtained from defendant’s trash cans supported probable cause to search the residence); United States v. Woods, 149 F.3d 1172 , 1998 WL 276459 , at *2 (4th Cir.1998) (same) (unpublished case); United States v. Payne, 995 F.2d 1064 , 1993 WL 218770 , at *1 (4th Cir.1993) (same) (unpublished case).
discussed Cited as authority (rule) United States v. Mindreci
10th Cir. · 2006 · confidence medium
Agent Cudmore, however, testified Ms. Knight told him she saw a shotgun, “like the kind on T.V.” On appeal, our role is not to reevaluate the facts, and “ ‘where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’ ” United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir.2004) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985)).
discussed Cited as authority (rule) United States v. Ledford (2×) also: Cited "see"
10th Cir. · 2005 · confidence medium
The district court provided a draft of the possession instruction containing “and the intention,” to which the government objected under United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.), cert. denied, — U.S. -, 125 S.Ct. 37 , 160 L.Ed.2d 34 (2004).
UNITED STATES of America, Plaintiff-Appellee,
v.
Jack Neil COLONNA, Defendant-Appellant
03-4074.
Court of Appeals for the Tenth Circuit.
Feb 9, 2004.
360 F.3d 1169
Michael S. Lee, Assistant United States Attorney (and Paul M. Warner, United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee., Vanessa Ramos-Smith, Yengich, Rich & Xaiz, Salt Lake City, UT, for Defendant-Appellant.
Kelly, McWilliams, Briscoe.
Cited by 118 opinions  |  Published
PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Jack N. Colonna was convicted by a jury of possession of firearms and ammunition by a convicted felon (Counts 1 & 2), 18 U.S.C. § 922(g)(1), and possession of marijuana (Count 3), 21 U.S.C. § 844. He was sentenced to 46 months imprisonment followed by three years supervised release. Mr. Colonna argues on appeal that (1) the affidavit supporting the warrant application was insufficient to support a finding of probable cause in view of the district court’s findings that several assertions in the affidavit were false, inaccurate, or misleading; (2) the affidavit lacked a proper factual basis for nighttime entry and a no-knock provision; (3) the district court abused its discretion in refusing to dismiss Count 3 of the superceding indictment for preindictment delay, and refusing to sever Count 3; and (4) the evidence is insufficient to support the convictions on Counts 1 and 2. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

Background

On June 14, 2000, Deputy Brian Weid-mer of the Salt Lake County Sheriffs Office sought a warrant to search Mr. Colonna’s home. Attached to the warrant application was a supporting affidavit articulating Weidmer’s basis for believing that Mr. Colonna was using his home as a drug distribution center. The affidavit noted the following:

¶ 10: Deputy Heinz Kopp told Deputy Weidmer that Mr, Colonna — whom Deputy Weidmer knew was a convicted felon — had bragged to Deputy Kopp about owning a handgun.
¶ 11: Deputy Weidmer saw Mr. Colonna covertly watching an unrelated drug bust in West Valley City in a manner that suggested that Mr. Colonna himself had something at stake in the drug bust.
¶ 12: A confidential informant (Cl# 2) told Deputy Joel Knighton, who had previously received reliable information from Cl# 2, that Cl# 2 had[*1173] watched Mr. Colonna make a drug delivery in Kearns, Utah.
¶ 13: Deputy Weidmer observed four men in a car waiting outside Mr. Co-lonna’s home for several minutes. The men were led into Mr. Colonna’s house after being met by him in his yard, after Colonna looked over his fence and up and down the street.
¶ 16: During a “trash cover,” Deputy Weidmer removed the contents of a garbage container placed on the street in front of Mr. Colonna’s home, and discovered two burnt roach ends of suspected marijuana cigarettes, a “twist” torn from the corner of a plastic baggie, a plastic baggie with a corner torn from it, and an empty container of Zig Zag cigarette papers.
¶ 17: Mr. Colonna had been arrested twenty-four times in Salt Lake City for various offenses and been convicted of two felonies.

I R. Doc 36.

A Utah state court judge issued the warrant, and a SWAT team executed the warrant shortly before 3:00 a.m. on June 22, 2000, after making a forcible, no-knock entry. During the search, officers discovered four firearms and several boxes of ammunition in the top drawer of a dresser inside Mr. Colonna’s bedroom. Officers also found a marijuana pipe in another drawer of the same dresser, [1] and discovered marijuana in an adjacent night stand. In the family room, the officers found ammunition inside a bureau drawer.

Mr. Colonna was arrested and charged in a two-count indictment with possession of firearms by a convicted felon and possession of ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). The district court denied a motion to suppress after holding a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). On August 21, 2002 — almost two years after the original indictment was filed, and five days before trial was scheduled — the government filed a superceding indictment adding a charge of possession of marijuana. Mr. Colonna’s motion to dismiss or sever the marijuana count was denied.

Discussion

A. Sufficiency of the Affidavit.

Mr. Colonna argues the district court erred in failing to grant his motion to suppress (1) because the affidavit lacked probable cause on its face; and (2) because of “numerous falsehoods contained in the search warrant.” Mr. Colonna also argues that the good faith exception to a defective warrant does not apply. Because the affidavit here supports a finding of probable cause despite its “numerous falsehoods,” it also supports a probable cause finding on its face, and it is not necessary to apply the good faith exception.

In reviewing the denial of a motion to suppress, this court considers the totality of the circumstances and views the evidence in the light most favorable to the government. United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir.2002). We accept the district court’s factual findings unless they are clearly erroneous, although the ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo. Id.

In the district court, Mr. Colonna pointed to five alleged falsehoods: (1) that Deputy Kopp told Deputy Weidmer that Mr. Colonna had bragged about owning or having guns, I R. Doc. 36 ¶ 10; (2) that Deputy Weidmer conducted a criminal history check of Mr. Colonna in early 2000, id. [*1174] ¶¶ 10, 17; (3) that Mr. Colonna covertly watched the unrelated drug bust, id. ¶ 11; (4) that the garbage can belonging to Mr. Colonna was not on Mr. Colonna’s property when removed, id. ¶ 16; and (5) that Deputy Weidmer had information from Cl# 2, id. ¶ 12. The district court found that the first statement was indeed a deliberate falsehood; it found that the second, third, and fifth statements “were, at the least, inaccurate or misleading,” and refused to consider them. I R. Doc. 67 at 4.

“It is a violation of the Fourth Amendment for an affiant to knowingly and intentionally, or with reckless disregard for the truth, make a false statement in an affidavit. Where a false statement is made in an affidavit for a search warrant, the search warrant must be voided if the affidavit’s remaining content is insufficient to establish probable cause.” United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)) However, a misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, does not invalidate a warrant. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674.

Contrary to Mr. Colonna’s view, the district court did not find that statements two, three and five (above) were “made with reckless disregard for the truth.” Aplt. Br. at 11 (citing D. Ct. Order Denying Def.’s Mot. to Suppress, I R. Doc. 67 at 4). Instead, the district court merely found that the statements “were, at the least, inaccurate or misleading.” This finding alone did not bar the court from considering those assertions in its determination of probable cause, for the inaccuracies could still be the product of negligence or innocent mistake. To the extent that the district court implicitly found a reckless disregard for the truth in those assertions and therefore did not consider them, the assertions concerning the evidence obtained from the trash cover support probable cause.

Mr. Colonna argues that “in light of all the falsehoods and statements made with reckless disregard for the truth, the district court clearly erred in believing the testimony of the officers with regard to the trash cover — the one item in the search warrant that the court relied upon to support probable cause.” Aplt. Br. at 19. Thus, the only question is whether the district court committed clear error in finding that the trash can was on the street, and not on Mr. Colonna’s property, when the officers conducted the trash cover. See California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy in garbage left out on the street). [2]

Mr. Colonna presented evidence that Harry Haughan, one of Mr. Colonna’s neighbors, claimed to have observed Deputy Weidmer and Deputies Yvette Zayes and Rex Mulholland as they retrieved a garbage can from Mr. Colonna’s property in early June 2000. Mr. Haughan failed to respond to a subpoena but stated in an affidavit and told Mr. Colonna’s investigator that he had observed the three officers remove Mr. Colonna’s garbage can from Mr. Colonna’s property. Mr. Haughan had been living with his mother across the street from Mr. Colonna at the time of the[*1175] trash cover, and did not personally know Mr. Colonna or his wife.

Deputies Weidmer and Zayes (two of the three officers involved in the trash cover) testified that the trash can was on the street in front of Colonna’s home. See III R. at 138, 188. The district court credited their testimony. I R. Doc. 67 at 4.

Mr. Colonna argues that the district court’s finding crediting the deputies’ testimony was clearly erroneous because Mr. Haughan’s version is in clear conflict with that of the officers, and because other assertions made by Deputy Weidmer in the affidavit were untrue. “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We cannot duplicate the factfinding role of the trial court and “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citations omitted). Moreover, in a motion to suppress, “[t]he credibility of witnesses, the weight to be given to evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court.” United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir.2002).

Applying this standard of review, and viewing all evidence in the light most favorable to the government, the district court did not commit clear error in crediting the testimony of two police officer witnesses — who testified that the trash can was not on Mr. Colonna’s property when they conducted the trash cover — over the testimony of another witness who made an out-of-court statement claiming that the trash can was on Mr. Colonna’s property. Mr. Colonna has failed to cite any authority indicating that, simply because one or more statements in a warrant affidavit are found to be deliberately false, then all of the statements must be deemed false as well, and our research has not uncovered any such authority. Indeed, such a proposition would be at odds with the very holding of Franks, which permits reliance on a warrant affidavit “when [the] material that is the subject of the alleged falsity or reckless disregard is set to one side [and] there remains sufficient content in the warrant affidavit to support a finding of probable cause.” 438 U.S. at 171-72, 98 S.Ct. 2674.

Finally, Mr. Colonna argues that the evidence found in the trash cover indicates only personal use of marijuana by someone in the residence, and that personal use alone does not justify the search of a home. Mr. Colonna has cited no authority to support the proposition that “mere personal use” of controlled substances in violation of the criminal laws is insufficient for a search warrant to issue. On the contrary, the Supreme Court has held that all that is required for a valid search warrant is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We see no reason to distinguish between drug use and all other crimes for which a warrant is appropriate. See United States v. Chapman, 196 F.Supp.2d 1279, 1284-85 (M.D.Ga.2002) (holding that probable cause was established for a search warrant where trash cover revealed personal-use quantity of marijuana and steroids).

B. Execution of the Search Warrant.

Mr. Colonna argues that the nighttime entry and no-knock provisions of[*1176] the search warrant were not supported by the affidavit. “In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of a crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Similar considerations justify the nighttime execution of a search warrant. See United States v. Tucker, 313 F.3d 1259, 1265-66 (10th Cir.2002) (nighttime execution reasonable given risk of destruction of evidence, personal injuries to nearby residents, and property damage due to volatile nature of chemicals used to manufacture methamphetamine). In reviewing a challenge to the no-knock or nighttime execution of a search warrant, we review the execution from the perspective of reasonable officers who are legitimately concerned not only with doing their job, but with their own safety. United States v. Myers, 106 F.3d 936, 940 (10th Cir.1997).

Mr. Colonna argues that the warrant affidavit failed to indicate any unusual circumstances that would justify a nighttime or no-knock search, claiming that the affidavit “merely contained conclusory assertions that the evidence may be easily destroyed, and generalizations that people who distribute controlled substances frequently are users and display paranoid and unpredictable behavior.” Aplt. Br. at 35.

It is true that the mere likelihood that drugs or weapons will be found at a particular premises does not justify a no-knock or nighttime execution of a search warrant. Cf. United States v. Jenkins, 175 F.3d 1208, 1214 (10th Cir.1999). However, the affidavit here also pointed out that Mr. Colonna had been arrested 24 times in Salt Lake County and been convicted of two felonies. I R. Doc. 36 ¶ 17. These arrests were for a variety of offenses that could make a reasonable officer apprehensive, including strong arm robbery, aggravated assault, assault on a police officer, resisting arrest, aggravated robbery with a firearm, failure to stop for a police officer, and terroristic threats. Id. Additionally, Deputy Weidmer stated that Mr. Colonna had been “very aggressive with police officers” in the past, and has even “hit, punched, or otherwise attacked” certain officers. Id. ¶ 19. Finally, Weidmer also stated in the warrant affidavit that he “ha[d] observed children playing in the area during the day and afternoon,” and that “[a] family with small children lives immediately to the north” of Mr. Colonna. Id. ¶ 38.

The reviewing court must look at the totality of circumstances in determining whether a no-knock or nighttime execution is reasonable. Here specific factors support reasonableness: Mr. Colonna’s prior extensive involvement with law enforcement, the expressed fear of a concerned citizen that Mr. Colonna would retaliate violently, and the presence of children in the vicinity. The affidavit sufficiently supported the method of execution of the warrant.

C. Count 3: Possession of Marijuana

Colonna argues that the district court erred in (1) not granting his motion to dismiss Count 3 of the superceding indictment for preindictment delay, and (2) not granting his motion to sever Count 3.

1. Motion to Dismiss

We review a denial of a motion to dismiss for preindictment delay for abuse of discretion. United States v. Comosona, 848 F.2d 1110, 1113 (10th Cir.1998). Preindictment delay is a violation of due process where (1) the defendant suffered “actual prejudice resulting from[*1177] the delay,” and (2) “the delay was purposefully designed to gain tactical advantage or to harass.” Id.

To constitute a showing of actual prejudice, the defendant must show that he has suffered “definite and not speculative prejudice.” United States v. Jenkins, 701 F.2d 850, 855 (10th Cir.1983), overmled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Thus, “[v]ague and conclusory allegations of prejudice resulting from the passage of time ... are insufficient to constitute a showing of actual prejudice for the purposes of preindictment delay.” Id.

Mr. Colonna claims that “the actual prejudice to him is the fact that such a small amount of marijuana is typically never charged in federal court, but in State court as a Class B Misdemeanor,” that the state statute of limitations had expired, and that the government seeks to file such a charge only to “taint Appellant’s character.” Aplt. Br. at 43-44. Although it is highly unusual for the government to postpone additional charges until just five days before trial, much more is required for a finding of actual prejudice. See, e.g., United States v. Wood, 207 F.3d 1222, 1235 (10th Cir.2000) (four-year preindictment delay was not prejudicial, even though body of victim was putrefied, and defendant’s ability to refute autopsy’s findings was lost); United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir.1998) (three year, nine month delay did not violate due process clause even though two witnesses had died, where defendant did not specifically allege how the witnesses’ testimony would have been of benefit to his case). Mr. Colonna has not explained, for example, how the delay prejudiced him in his defense.

Nor has Mr. Colonna demonstrated that the government purposefully delayed joining Count 3 in order to gain a tactical advantage. As the government explained, Count 3 was added immediately after it had learned that state prosecutors had failed to charge Mr. Colonna with possession of marijuana prior to the expiration of the statute of limitations. Aple. Br. at 39-40 (citing I Supp. R. at 10). Mr. Colonna has not rebutted this explanation.

2. Motion to Sever

Mr. Colonna argues that his motion to sever should have been granted based upon Rules 8(a) (misjoinder) and 14 (prejudicial joinder) of the Federal Rules of Criminal Procedure.

Misjoinder raises an issue of law; we therefore review a denial of a motion to sever under Rule 8 de novo. United States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir.1995). According to Rule 8(a), joinder of offenses is proper if the offenses are “of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R.Crim.P. 8(a). On appeal, Mr. Colonna simply states that “his motion to sever should have been granted based upon Rule[ ] 8.” Aplt. Br. at 46. As Mr. Colonna has failed to support this contention with any authority or argument, we deem the issue waived. Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1232 (10th Cir.2003). Even were we not to find waiver here, the Rule plainly allows the joinder of the offenses for which Mr. Colonna was tried.

As for Mr. Colonna’s claim of prejudicial joinder, we review a denial of a motion to sever under Rule 14 for abuse of discretion. United States v. Jones, 213 F.3d 1253, 1260 (10th Cir.2000). Ordinarily, the district court’s decision will not be reversed “absent a strong showing of prej[*1178] udice.” Id. “[A] mere allegation that defendant would have a better chance of acquittal in a separate trial” is not sufficient to warrant severance. United States v. Powell, 982 F.2d 1422, 1432 (10th Cir.1992) (quoting United States v. Hack, 782 F.2d 862, 870 (10th Cir.1986)). Consequently, “[t]he burden of a defendant to show an abuse of discretion in this context is a difficult one.” Jones, 213 F.3d at 1260.

Mr. Colonna’s claim that “the mere mention of drug possession in determining the outcome of the firearm and ammunition charges necessarily prejudices the jury” is unavailing, Aplt. Br. at 48, and his case is distinguishable from the one case he cites for support, United States v. Dockery, 955 F.2d 50 (D.C.Cir.1992). In Dockery, the defendant had been charged with four drug counts, a weapons count, and possession of a firearm by an ex-felon. The government refused to stipulate that the defendant had been convicted of a felony and instead introduced live testimony that the defendant had been convicted of an unspecified qualifying felony and ultimately sentenced to five years probation. See id. at 51-52. The government referred to the conviction six times during the trial. The trial judge, moreover, failed to instruct the jury that it could not use the felony conviction to infer propensity to commit the other charged crimes. See id. at 55. Finally, the evidence on the weapons charge was “extraordinarily weak,” and the defendant was ultimately acquitted of that charge. Id. at 56. The combination of these factors caused the court to conclude, unlike this case, that prejudice had been shown. Id.

In refusing to sever drug charges from firearms charges, this court has held that there is “no essential unfairness when the relationship of the charges grew out of the defendant’s own conduct.” United States v. Valentine, 706 F.2d 282, 290 (10th Cir.1983); see also Jones, 213 F.3d at 1260-61 (refusing to sever robbery and firearms charges). Here, the relationship of the charges clearly grew out of Mr. Colonna’s own conduct, and the district court’s refusal to sever the charges was not an abuse of discretion.

D. Sufficiency of the Evidence.

Colonna argues that the evidence presented at trial did not support a conviction on Counts 1 and 2, possession of weapons and ammunition by a convicted felon. In reviewing the sufficiency of the evidence to support a conviction or a denial of a motion for judgment of acquittal, we review the record de novo to determine whether, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt. See United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002).

In order to prove a violation of § 922(g)(1), the government must establish the following elements beyond a reasonable doubt: (1) that the defendant was previously convicted of a felony; (2) that the defendant thereafter knowingly possessed a firearm or ammunition; and (3) that the possession was in or affecting interstate commerce. United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.1997). Mr. Colonna disputes only whether he “possessed” the weapons and ammunition.

“Possession” under § 922(g)(1) includes both actual and constructive possession. See United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Generally, an individual has constructive possession over an object when he or she knowingly has ownership, dominion, or control over the object and the premises where it is[*1179] found. United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.1998). In most cases, dominion, control, and knowledge may be inferred where a defendant has exclusive possession of the premises; however, “joint occupancy alone cannot sustain such an inference.” Mills, 29 F.3d at 549.

In cases of joint occupancy, “where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband.” Id. “While caution must be taken that the conviction not be obtained by piling inference on inference, an inference of constructive possession is reasonable if the conclusion flows from logical and probabilistic reasoning.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir.1999) (internal quotation marks omitted). In order to sustain a conviction based upon constructive possession, the government must present “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.” Hien Van Tieu, 279 F.3d at 922; Mills, 29 F.3d at 549-50. Thus, knowledge and access are required to prove that the defendant knowingly held the power to exercise dominion and control over the firearm. See United States v. Gorman, 312 F.3d 1159, 1164 (10th Cir.2002).

Mr. Colonna cites an Eighth Circuit case, United States v. Martin, 180 F.3d 965 (8th Cir.1999), and argues that the government must show that he had the “intention to exercise dominion and control.” Aplt. Reply Br. at 13. This overstates what is required. Under Tenth Circuit precedent, where the defendant in a joint occupancy situation has knowledge of and access to the weapons, there is a sufficient nexus to infer dominion or control. See Mills, 29 F.3d at 550. It is not necessary to show that the defendant intended to exercise that dominion or control, nor is it necessary to show that the defendant actually owned the weapons— mere possession is enough.

Here, the evidence is sufficient to show knowledge of the guns in the bedroom. While being transported to the jail — and without being told where the guns were found — Mr. Colonna volunteered to Deputy Ford that “the guns inside the bedroom were not his,” but “were his wife’s.” VI R. at 82; see also Aplt. Br. at 16, 52, 54. According to Deputy Ford, Mr. Colonna admitted that he “knew that [the guns] were there and he knew he shouldn’t have had them.” VI R. at 83.

Likewise, the evidence is sufficient to show that Mr. Colonna had access to the guns. The weapons were found in his bedside dresser. Deputy Weidmer testified that the handguns and ammunition were found in the top drawer of a dresser that Rebecca Colonna had referred to as “Jack’s dresser.” VI R. at 69; see also id. at 73. Rebecca Colonna also testified that several months before his arrest, Jack Co-lonna had placed his son’s marijuana pipe “in his dresser drawer,” where it remained until it was seized. VI R. at 188. Deputy Weidmer later explained that the handguns and ammunition were found in the same dresser as the marijuana pipe. VI R. at 250. [3]

[*1180] Additionally, although Rebecca Colonna had documents indicating that she had purchased two guns from Terry Carlson on two separate occasions, Deputy Weid-mer testified that Carlson told him that Jack Colonna participated in the first transaction, and that Carlson also “alluded to having sold one of the guns ... directly to Jack.” VI R. at 118. Finally, although Rebecca Colonna claimed to have used and handled the handguns on multiple occasions, she could describe them only in the most general terms, and she was even unable to state the colors of the four guns. VI R. at 64, 71-72, 168. Based on this evidence, when viewed in the light most favorable to the government, the jury could have reasonably concluded that the guns and ammunition were found in Mr. Colonna’s dresser drawer, and that he therefore had access to them. [4]

The Tenth Circuit cases cited by Mr. Colonna with a contrary result are distinguishable. In United States v. Taylor, 113 F.3d 1136 (10th Cir.1997), the court found the evidence insufficient to convict where three men were linked to the bedroom where the firearm was located in a closet, and the only evidence connecting defendant to the room were receipts found in an entertainment center in the room. In United States v. Hishaw, 235 F.3d 565 (10th Cir.2000), the government presented no evidence to rebut defendant’s testimony that the car he was driving, which contained a gun under the passenger’s seat, belonged to a friend of his brother, and the government’s evidence of defendant’s actual possession of a firearm involved incidents more than two years before the charged offense. Similarly, in United States v. Valadez-Gallegos, 162 F.3d 1256 (10th Cir.1998), there was no evidence that the defendant, a passenger in a truck, knew about drugs hidden in the truck’s ceiling, and therefore he could not have constructively possessed the drugs. Finally, in Mills, a third party had hidden guns in the common area of a shared dwelling unbeknownst to the defendant. 29 F.3d at 550. Unlike the instant case, in none of these cases did the government establish the two requirements of knowledge and access.

AFFIRMED.

1

. Mr. Colonna claims that the pipe was located in another dresser in the bedroom.

2

. Mr. Colonna cites State v. Goss, 834 A.2d 316 (N.H.2003), as showing a "trend” in courts finding that there is a reasonable expectation of privacy in trash left on the street. Reply Br. at 7-8. Given binding Supreme Court authority based on the federal constitution, we decline to follow a single state court decision interpreting the New Hampshire state constitution.

3

. Mr. Colonna points to Rebecca Colonna's testimony that, while the marijuana pipe was located in Jack Colonna's separate dresser, the weapons and ammunition were located in her dresser. Reply Br. at 2 (citing VI R. at 137, 141, 157-58). Under these circumstances, the issue of where the guns were found was properly a question for the jury. See Hien Van Tieu, 279 F.3d at 922; United [*1180] States v. McCoy, 781 F.2d 168, 171 (10th Cir.1985).

4

. Because of our disposition of this issue, we need not decide whether, if the government failed to establish that the weapons were found in Mr. Colonna's dresser drawer, the evidence would nonetheless be sufficient for the jury to infer that Mr. Colonna had knowledge of and access to the weapons, thus supporting a finding of constructive possession.