United States v. Lawrence

788 F.3d 234

UNITED STATES of America, Plaintiff–Appellee

v.Brian LAWRENCE, Defendant–Appellant.

No. 13–3205.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 10, 2014.

Decided June 2, 2015.

Renato T. Mariotti, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

William S. Stanton, Attorney, Law Office of William S. Stanton, Michael F. Clancy, Attorney, Chicago, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.

Opinion

ROVNER, Circuit Judge.

As part of a routine parole compliance check, state parole agents searched convicted felon Brian Lawrence's residence and found cocaine and ammunition. A jury acquitted him of the ammunition charge, but convicted him of possession with intent to distribute cocaine. Lawrence appeals, arguing that the government failed to prove him guilty beyond a reasonable doubt, that the district court improperly denied his motion in limine to preclude dog-sniff evidence and his motion for a mistrial, that the jury instructions were misleading and finally, that his sentence was unreasonable. We affirm on all grounds.

I.

In addition to regular parole visits, Illinois Department of Corrections parole agents also occasionally conduct parole compliance checks during which they arrive unannounced and search a parolee's residence. On October 22, 2010, parole agents along with Chicago Police Department officers paid such an unannounced visit to Lawrence's residence at 6:40 a.m. Parole agents Louis Hopkins and James Hollenbeck knocked on the front door while another parole agent and two police officers, including Officer Lawrence Kerr, remained outside along the perimeter of the house. Lawrence's fiancée, Phyllis Williams, opened the door. Agent Hopkins told Williams that they were performing a parole compliance check and were looking for Lawrence. Williams motioned them toward a first-floor bedroom. As the agents walked past the door, Agent Hopkins looked up the stairway and saw Lawrence in his underwear and a t-shirt, standing at the top of the stairs and beginning his descent down. Lawrence informed the officers that his bedroom was on the first floor and pointed to the same bedroom that his fiancée, Williams, had previously identified. The agents, after handcuffing Lawrence for their safety, decided to survey the second-floor area from where Lawrence came. They ascended the stairs to a dimly lit hallway, where, while shining their flashlights, they found a drawer on the floor in the middle of the hallway. Agent Hollenbeck took a photograph of the drawer exactly as he found it at the moment of discovery and the photo showed a plastic box, a box of sandwich bags, numerous other bags containing a white powdery substance, and an amount of currency, later determined to be $1,564. The parties stipulated that the white substance was 492 grams of a mixture containing cocaine.

Police officers then took over the investigation, photographing the drawer and taking the defendant and the drawer downstairs. Although the agents only had authorization to search areas of the residence under Lawrence's control, they, along with the police officers, secured the rest of the second floor for their safety.¹ Officers knocked on the remaining bedroom doors and found only sleeping or recently awakened and cooperative residents. They did not find any additional contraband, nor did they observe any furniture with a missing drawer.

In the bedroom that both Lawrence and his fiancée had identified as Lawrence's bedroom, officers found a dark-colored nightstand missing a drawer. The color and trim of the drawer found in the hallway matched the nightstand and the drawer was the proper fit for the empty space in the nightstand. Agent Hopkins also noticed a dusting of white powder on top of the nightstand.

Inside the remaining part of the nightstand, officers found multiple pieces of mail with Lawrence's name on them. Under the bed, the officers found a cardboard box with papers, including checks for an account with the name “Lawrence Construction,” some other correspondence with Lawrence's name, and a shoebox, inside of which they found a small box of ammunition. Williams testified that the shoe-box belonged to her and contained bullets she had taken from her son.

Upon searching the closet, officers discovered clothing and shoes that fit Lawrence and a locked safe. Officers asked Lawrence how they could open the safe, but Lawrence initially denied having a combination or key to the safe. Agent Hopkins testified that eventually Lawrence agreed to disclose the location of the key if Hopkins would agree to give “two stacks” to his “old girl.” Agent Hopkins interpreted this as a request that he give $2,000 of the amount in the safe to Lawrence's fiancée, Phyllis Williams. Lawrence subsequently told Agent Hopkins that he could find the key in his bedroom closet in the pocket of a white shirt with beige stripes, which is precisely where Hopkins found it. Inside the safe, agents and officers found a large sum of money and a purple Crown Royal Whiskey bag containing more money, the total of which was later determined to be $14,364.

Officer Kerr testified that he kept the $14,364 recovered from the safe isolated from the $1,564 recovered from the drawer as the latter had clearly been contaminated with drug-related chemicals from its proximity to scales and cocaine. In later controlled testing, a certified drug-detecting dog, Achilles, alerted to the scent of drugs on both envelopes of currency.

As for other evidence presented at trial, an expert fingerprint examiner was unable to find any usable fingerprints on the ammunition, razor blades, cocaine packaging, or the outside of the cocaine-dusted scale. He did find three latent fingerprints inside the battery cover of the scale, but they did not belong to Lawrence, his fiancée, or anyone else in the house.

The jury found Lawrence not guilty of count one—knowingly possessing ammunition that had traveled in interstate commerce after having been previously convicted of a crime punishable by one year (18 U.S.C. §§ 922(g)(2) and 924(e)(1) ), and guilty on count two—knowingly possessing with intent to distribute cocaine. (21 U.S.C. § 841(a)(1) ). The district court sentenced Lawrence to the lowest sentence recommended by the United States Sentencing Guidelines, 262 months' imprisonment.

II.

A.

Lawrence appeals five distinct issues, arguing first that the jury verdict should be overturned because the government failed to prove Lawrence guilty beyond a reasonable doubt. When asked to overturn a jury verdict, we must view the evidence in the light most favorable to the prosecution, and reverse only if the record is devoid of any evidence from which any rational jury could find guilt. U.S. v. Pereira, 783 F.3d 700, 703 (7th Cir.2015) ; U.S. v. Miller, 782 F.3d 793, 797 (7th Cir.2015). This is a momentous task and has been described as anything from “extremely difficult” to “a nearly insurmountable hurdle.” See, e.g., Miller, 782 F.3d at 797 ; U.S. v. Parker, 716 F.3d 999, 1007 (7th Cir.)cert. denied, ––– U.S. ––––, 134 S.Ct. 532, 187 L.Ed.2d 369 (2013). Under this standard, we neither weigh evidence nor assess the credibility of witnesses, as those tasks are for the trier of fact. U.S. v. Sewell, 780 F.3d 839, 847 (7th Cir.2015).

Lawrence argues that the jury had insufficient evidence to find that he possessed the crack cocaine. We conclude, however, that the jury had more than sufficient evidence before it to conclude just that. Lawrence presents a number of instances of conflicting evidence in his recitation of the facts. For example, he points to the fact that one agent thought Phyllis Williams took several minutes to open the door, while another agent testified that he did not think it took a suspiciously long time. One agent testified that Williams pointed to a bathroom when asked where Lawrence could be found; another agent testified that she pointed to a bedroom. One agent testified that Lawrence was walking down the stairs when he first saw him; the other agent reported that they met him at the base of the stairs. None of these discrepancies is significant (and most are not discrepancies at all, but rather a matter of viewpoint). As we just discussed, when reviewing a decision for sufficiency of the evidence we must view all of the evidence in the light most favorable to the government. U.S. v. Yu Tian Li, 615 F.3d 752, 755 (7th Cir.2010). But even if we were to consider the varying accounts, none of it conflicts with the verdict in any significant manner, and certainly not in a manner that would cause us to conclude that no rational jury could have made the finding that it did.²

Because Lawrence was not caught actually holding or carrying the drugs, this case is one in which the government had to prove constructive possession. Constructive possession is a legal fiction in which a person is deemed to possess contraband even without immediate physical control of the object. U.S. v. Griffin, 684 F.3d 691, 695 (7th Cir.2012). To prove constructive possession, the government must establish that the defendant knowingly had both the power and intention to exercise dominion and control over the object, either directly or through others. Id. at 695. Not only can possession be actual or constructive it can also be exclusive or joint. U.S. v. Gilbert, 391 F.3d 882, 886 (7th Cir.2004). Lawrence and his fiancée, therefore, could have jointly possessed the contraband found in their bedroom. All forms of possession can be proved by direct or circumstantial evidence. Id. at 886.

In constructive possession cases the government can demonstrate the required nexus between the defendant and the contraband by showing either exclusive control or a substantial connection to the contraband. Griffin, 684 F.3d at 695. If a defendant lives alone in an apartment and a search reveals contraband, proving constructive possession is relatively...