United States v. White

95 F.4th 1073

UNITED STATES of America Plaintiff-Appellee, v. Shamone WHITE, Defendant-Appellant.

No. 23-1315

United States Court of Appeals, Seventh Circuit

Argued February 14, 2024

Decided March 15, 2024

Appeal from the United States District Court for the Central District of Illinois. No. 22-cr-20012 — Colin S. Bruce, Judge.

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, Jeffrey Kienstra, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Andrew S. Murphy, Attorney, Taft Stettinius & Hollister LLP, Chicago, IL, for Defendant-Appellant.

Before Scudder, St. Eve, and Lee, Circuit Judges.

St. Eve, Circuit Judge.

A jury convicted Shamone White of possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(D), possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). On appeal, he challenges his firearm convictions, arguing that the government presented insufficient evidence to establish possession. He also contends that the district court improperly instructed the jury, permitting it to find him guilty based solely on his admission that he touched the gun a week before his arrest. Because we find the evidence sufficient for each conviction and determine that the instruction was not misleading, we affirm.

I. Background

A. Factual Background

On January 29, 2022, a speeding car caught the attention of Kankakee Sheriff's Deputies Griffin Able-Bernier and Calvin Zirkle. They followed the car, which contained two occupants, a driver and a passenger, until it pulled into the parking lot of a liquor store. The Deputies watched from a distance as the driver, Elijah Campbell, got out and went inside while the other occupant waited in the front passenger seat. At that point, Deputies Able and Zirkle recognized Campbell from previous encounters. Campbell's license was suspended, and he could only operate vehicles equipped with a Breath Alcohol Ignition Interlock Device ("BAIID") to ensure his sobriety. Campbell returned and the Deputies followed as he drove to the parking lot of a nearby takeout restaurant. As the Deputies pulled up behind the car, the passenger, Shamone White, exited the car and walked toward the front door of the restaurant. At that time, the Deputies had little interest in White. They instead approached the car, asked Campbell to step out, confirmed that his license was still suspended and that the car lacked a BAIID, and placed him under arrest.

The Deputies then considered whether they should impound the car or turn it over to someone else. Campbell told them it belonged to his girlfriend and she needed it for errands and prenatal appointments. Faced with this decision, the Deputies shifted their attention to White, who offered to take the car. He said he was staying at a nearby hotel and could drive the car to Campbell's girlfriend's home. Concerned about a strong smell of unburnt cannabis in the vehicle, the Deputies agreed that White could take the car provided he had a valid driver's license and a search of the vehicle turned up no contraband.

Behind the front passenger seat lay two bags: one large blue bag and one smaller gray bag. White explained to the Deputies that the blue bag was his and contained his daughter's PlayStation and some other "miscellaneous stuff."

Deputy Able picked up both bags, handing the blue bag to White. He then asked what was inside: "You got no like large amounts of cash in here, no cannabis—none of that stuff in here?" White denied having any contraband, after which Deputy Able, out of White's view, glanced inside the gray bag and saw a firearm. Deputy Able instructed White to open the blue bag, revealing exactly what White denied it contained—$3,336 in cash and two pounds of cannabis. The cannabis was in three vacuum-sealed plastic bags. One had been ripped open and held nine smaller bags, about an ounce each. The blue bag also contained an open box of plastic storage bags, a Madden 22 PlayStation game, a stick of deodorant, and a pair of underwear.

After discovering the cannabis inside White's bag, the Deputies arrested and searched him, finding cash, two plastic baggies of cannabis, a pack of Kool cigarettes, fingernail clippers, and a hotel keycard. They then asked whether the gray bag also belonged to him, but White denied ownership. A more thorough search of the gray bag revealed a loaded Walther Creed 9mm pistol, a box of 9mm ammunition, two scales with residue on them (later confirmed to be cannabis residue), a pack of Kool cigarettes, and a toothbrush in a travel container. The firearm and the scales were in the same compartment of the gray bag, and police later learned that the firearm had been reported stolen.

The Deputies searched the rest of the vehicle, finding no other contraband. They did, however, find an empty Newport cigarette box in the driver's side door, a box of Newport cigarettes in the center console, and another box of Newports on the dashboard. They also searched Campbell, who did not possess cash, drugs, or any other contraband.

After placing White under arrest, the Deputies questioned him about the gray bag: "[S]o we found a gun in there, okay. Is there gonna be any reason that you put your hands on it or anything like that? Is there gonna—any DNA on there?" White seemed to know the gun Deputy Zirkle was talking about and responded, "Not that I know—I didn't know it was in there today . . . . But I don't—I don't know if I touched it before but I know I didn't touch it today because I didn't [know] it was there." Deputy Zirkle prompted, "So maybe at some point if—if we do, you know, send it off to the lab—," to which White admitted that he touched it, eventually stating that he had touched it last Saturday, though he had never shot it and did not know who it belonged to.

B. Procedural Background

In March 2022, a grand jury indicted White for possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), carrying a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), and possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). The indictment stated that each offense occurred "[o]n or about January 29, 2022."

1. Trial

At trial in October 2022, the jury saw body camera footage and heard testimony from Deputies Able and Zirkle describing the events laid out above. Drug enforcement expert Clayt Wolfe, an Illinois State Police master sergeant and the director of the Kankakee Area Metropolitan Enforcement Group, also testified. Both the defense and prosecution issued subpoenas for Campbell to testify at trial, but he failed to appear.

After the Deputies testified to the facts surrounding White's arrest, complemented by excerpts from body camera footage, Wolfe gave expert testimony about common practices in drug trafficking. He explained that drug dealers typically purchase large quantities of a narcotic and then divide it into smaller increments for distribution using small plastic bags and scales. He also testified that large amounts of narcotics—often prepackaged into smaller amounts—plastic baggies, scales, firearms (often stolen) and ammunition, multiple cell phones, and large amounts of cash constitute the common tools of drug traffickers. In fact, he noted it would be rare for a dealer to not carry scales with their drug contraband. Examining photos of the contraband recovered from the blue and gray bag, Wolfe opined that together, the evidence suggested that the owner of the contraband was engaged in drug trafficking and that the contraband items collectively represented the tools of a drug trafficker.

2. Jury Instructions and Verdict

Over White's objection, the district court gave the jury the following "on or about" instruction:

The Indictment charges that the crime happened on or about January 29, 2022. The government must prove that the crime happened reasonably close to the date. The government is not required to prove that the crime happened on the exact date.

The next day, the jury found White guilty on each charge.

3. Motion for Acquittal

After trial, White moved for a new trial and for a judgment of acquittal on the two charges for possessing the firearm. He made two arguments in support of the motions: that the government presented insufficient evidence to convince a reasonable jury that he possessed the firearm, and that the "on or about" jury instruction impermissibly allowed the jury to conclude that merely touching the firearm the week before satisfied the possession requirement.

The district court denied White's motions. It explained that the jury could have reasonably inferred that White constructively possessed the gun due to its physical proximity, the presence of scales with drug residue in the same bag, and the fact that together, the contents of the blue bag—which he admitted to owning—and the gray bag made up the tools of the drug trade. That the cigarette brand found in the gray bag was consistent with the brand found on White, and the absence of evidence tying Campbell to the drugs or other contents of the gray bag, bolstered that inference. Finally, the court found that White's admission to having touched the gun a week prior satisfied § 922(g)(1)'s requirements.

As for White's objection to the "on or about" jury instruction, the court found that this circuit's precedent supports such an instruction.

At sentencing in February 2023, the district court sentenced White to a total of 144 months' imprisonment: 60 months for possessing marijuana with intent to distribute and 84 months for his possessing a firearm as a felon, to run concurrently, and 60 months for possessing a firearm in furtherance of a drug trafficking offense, to run consecutive to the other counts. White now challenges the jury verdict and the district court's...