United States of America, Plaintiff - Appellee, v. Charles Lamont Lemon, Defendant - Appellant.
No. 00-1650
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: October 18, 2000 Filed: January 26, 2001
Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
When Minneapolis police executed a no-knock warrant to search the apartment of Charles Lemon‘s girlfriend, they found Lemon asleep in the master bedroom, 203 grams of crack cocaine on a shelf in the bedroom closet, and a box of .45 caliber ammunition in a dresser drawer. A jury convicted Lemon of possessing crack cocaine with intent to distribute, in violation of
Lemon stipulated that he had three prior felony convictions, that the ammunition had traveled in interstate commerce, and that the substance found on the closet shelf was crack cocaine. In addition, the government introduced overwhelming evidence that 203 grams is a distribution quantity of crack cocaine, having a street value of $20,000 to $40,000. Thus, the fighting issue at trial was whether Lemon wаs in constructive possession of the drugs and ammunition. While mere physical proximity to contraband is insufficient to convict a person of possession with intent to distribute, “knowledge of presence, plus control over the thing is constructive possession.” United States v. Johnson, 18 F.3d 641, 647 (8th Cir. 1994) (emphasis in original). If there is knowledge, control is established by proof the рerson has “dominion over the premises in which the contraband is concealed.” United States v. Brett, 872 F.2d 1365, 1369 (8th Cir.), cert. denied, 493 U.S. 932 (1989); see also United States v. Surratt, 172 F.3d 559, 564 (8th Cir.) (defendant constructively possessed drugs and gun found in his apartment), cert. denied, 528 U.S. 910 (1999).
In searching the apartment, the police found a leather jacket hanging on the bedroom closet door. Officer Elizabeth Holland testified she saw Lemon wearing that jacket while engaged in suspicious activities during the prior week. In one of the jacket pockets, police found keys to the apartment. This was highly probative evidence of constructive possession. See Brett, 872 F.2d at 1369 (possession of key to crack house was sufficient evidence of knowing possession). Lemon nonetheless argues there was insufficient evidence because his girlfriend, Qiana Hicks, leased the apartment, he lived elsewhere, and the government failed to рrove he knew the drugs and ammunition were there and intended to exercise control over them.
We agree it takes more evidence of knowledge and control to prove that a defendant constructively possessed contraband found in someone else‘s apartment, as opposed to his own residence. For example, in United States v. Dunlap, 28 F.3d 823, 826-27 (8th Cir. 1994), defendant was arrested while present in a drug dealer‘s apartment in circumstances that suggested drug trafficking. We nonetheless reversed his conviction for possession with intent to distribute because his “behаvior was equally consistent with an intent to purchase cocaine for his own use, an offense not charged in the indictment.” Id. at 827. Thus, to resolve Lemon‘s sufficiency argument, we must examine the government‘s evidence that he knew of and exercised control over the contrabаnd found in Hicks‘s apartment. In reviewing this issue, “we must give the government the benefit of all reasonable inferences which may logically be drawn from that evidence.” United States v. Watson, 952 F.2d 982, 987 (8th Cir. 1991), cert. denied, 503 U.S. 994 (1992).
First, at the time of the search, Lemon was undressed and asleep. No one else was present, Hicks having left for work еarlier that morning. Though Lemon resided elsewhere most of the time, Hicks admitted he stayed in her apartment with some frequency. Hicks testified she only gave Lemon her spare apartment keys the night before, when he went to the store, but the jury was free to infer that Lemon had more general control over the keys found in his jacket pocket. This was sufficient evidence he had dominion over the premises in which the contraband was found, leaving only the question whether he had knowledge of that contraband.
Second, Officer Holland testified that she had observed Lemon engaged in what appeared to be illegal drug sales outside his mother‘s home the week prior to the search. In addition, Deputy Sheriff David Lind testified that in 1996, while searching the home of Lemon‘s mother, he found crack cocaine in Lemon‘s shirt pocket, and more crack cocaine and a Tanita electronic scale in the basement where Lemon was living. Lemon later pleaded guilty to possession of crack cocaine in state court. In Hicks‘s apartment, a Tanita scale and a box of Glad baggies werе found in the dresser drawer where the ammunition was found. The proof of Lemon‘s prior drug trafficking was clearly relevant to the question whether he had knowledge of the drugs found in Hicks‘s apartment. See United States v. Thomas, 58 F.3d 1318, 1323 (8th Cir. 1995).
Third, Sheriff Lind further testified that in 1996 Lemon admitted he owned a .45 caliber handgun uncovered during the search of his mother‘s home. The government presented testimony that a .45 caliber handgun is relatively uncommon, and Lemon‘s parole officer, called as a defense witness, admitted on cross exam he appeared to have “a love for firearms.” All this was strong cirсumstantial evidence Lemon constructively possessed the box of .45 caliber ammunition found in the dresser drawer.
Fourth, police found on top of the dresser a two-finger ring with the letters “FMOB.” The government presented expert testimony that “FMOB” was a symbol for the Family Mob, a street gang meeting the definition of a criminal gang under Minnesota law,1 and that Lemon had admitted under oath in a prior court proceeding to being a member of that gang.
Like the district court,2 we conclude that this evidence, viewed in its entirety, is more than sufficient to convict Lemon of constructively possеssing the crack cocaine and ammunition found in Hicks‘s apartment. There was contrary evidence, particularly Hicks‘s testimony that the FMOB ring and two pairs of men‘s trousers found in the apartment belonged to her brother, who stayed there from time to time. But the government vigorously attacked Hicks‘s credibility, and it was the jury‘s function to evaluate her credibility and to weigh her testimony against the government‘s evidence of constructive possession.
II. Gang Membership Evidence
Prior to trial, the government filed a motion in liminе seeking to admit both expert testimony as to Lemon‘s admitted gang membership, and evidence that his most recent felony conviction was a violation of
it appears that while limited evidence of [Lemon‘s] gang affiliation is relevant to material issues in this case and not unfairly prejudicial, [the unfair prejudice from] evidence of [Lemon‘s] prior conviction for Crime for the Benefit of a Gang substantially outweighs its probative value. For these reasons, the Court exercises its discretion under Rules 401 and 403 of the Federal Rules of Evidence and grants the admission of expert testimony linking [Lemon] to the “F Mob” ring, but denies admission of [Lemon‘s] Crime for the Benefit of a Gang conviction.
III. Alleged Prosecutor Misconduct
Lemon argues he was denied a fair trial by the prosecutor‘s repeated and imprоper injection of irrelevant and inflammatory issues into the trial. To prove prosecutor misconduct, Lemon must show that the statements were improper and that the error affected his substantial rights so as to deprive him of a fair trial. United States v. Wiley, 29 F.3d 345, 351 (8th Cir.), cert. denied, 513 U.S. 1005 (1994).
Lemon timely objected to only onе of the prosecutor‘s comments challenged on appeal. After the district court excluded evidence of Lemon‘s drive-by shooting conviction, the prosecutor asked a defense witness: “And in fact, [Lemon] did not go to prison on those [drug] charges, did he? He went to рrison on another separate charge called Crime Committed for the Benefit of a Gang.” Lemon objected. The court sustained the objection and ordered the witness not to answer. On appeal, Lemon
The prosecutorial comments challenged for the first time on appeal fall far short, singly or in combination, of plain error, that is, error that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993); see
- Asking Officer Holland to describe the elaborate measures employed by her “SWAT team” in executing the no-knоck warrant was relevant, not only as background, but to establish that no other occupant successfully fled the apartment.
- Lemon argues the prosecution improperly referred to investigative evidence not before the jury (an informant‘s tip) when Holland testified she had information Lemon and drugs would be found in the apartment. The district court has discretion to admit this type of background testimony. See Watson, 952 F.3d at 987. Moreover, the testimony was supported, at least in part, by Holland‘s testimony that she saw Lemon conducting what appeared to be narcоtics sales the previous week.
- The cross examination of Lemon‘s parole officer about his criminal history was responsive to her direct testimony that Lemon told her he was being harassed by
the police. Asking the parole officer whether her case notes referred to Lemon‘s “love for firearms” was relevant to whether Lemon constructively possessed the ammunition found in Hicks‘s apartment. Even if this was improper opinion testimony, it was not plain error. - One statement by the prosecutor during closing argument came fairly close to an improper conduct line we have drawn in prior cases:
In United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992), a drug case, we ordered a new trial because the prosecutor in closing had improperly appealed to the jury to be the conscience of the community when he urged the jury to be “a bulwark against [the defendant‘s] putting this poison on the streets.” Here, thе reference to “horribly addicted” crack customers may arouse strong feelings, but there was no suggestion the jury had a duty to serve as the conscience of the community. In Wiley, 29 F.3d at 351-52, though we affirmed the drug conviction, we commented that it is an improper appeal to the jury‘s рassion and prejudice to compare a drug dealer‘s “business” to the business of law-abiding citizens. Here, there was no such comparison, and the reference to Lemon‘s drug dealing as a business was relevant to an issue in the case -- whether he possessed crack сocaine with the intent to distribute it. Thus, even if this closing argument was objectionable, it was not plain error.The defendant is a businessman . . . His commerce is drug dealing, and the people that he deals to are addicts. They‘re people that are horribly addicted to this terrible thing we call crack cocаine.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.