United States v. Daisy E. Walls and Sharee S. WilliamsUnited States v. Daisy E. Walls and Sharee S. Williams
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- Before:
- Rovner
Daisy Walls and Sharee S. Williams were convicted after a jury trial of conspiracy to possess with intent to distribute and conspiracy to distribute substances containing cocaine in violation of
I.
On April 22, 1998, Federal Express (“FedEx”) identified as suspicious two packages that were purportedly shipped by the Renaissance Electrical Supply Company in Los Angeles, California, for delivery to Tascam Electrical Supply Company at 9121 S. Colfax in Chicago, to the attention of Daisy Walls. FedEx employees conducted a field test on the contents of the packages, which revealed the presence of cocaine. The employees then reported the results of their investigation to Phillip Barnett, who was commissioned by the Shelby County Sheriffs Office and assigned to the DEA Drug Task Force. Barnett subsequently traveled to the FedEx office and conducted his own test of the packages, which yielded the same results. The DEA agents were unable to verify any businesses using the names indicated on the packages, and decided to make a controlled delivery of the packages to the Chicago destination. A court-ordered break-wire device was inserted into each package to enable the agents to track the packages after the delivery was accomplished. If a package was opened, the wire would break and the signal being transmitted by the wire to the agents monitoring it would cease. Agent Markhart then donned a FedEx uniform and drove to 9121 S. Colfax in a truck with FedEx markings. Approximately fifteen undercover agents dispersed in the area surrounding the residence. Agent Markhart arrived at 9121 S. Colfax (which was a private residence) at approximately 5:30 p.m. on April 23, 1998. As he approached the residence he passed two persons standing in front of it, and one of them yelled toward the house “Mama, your package is here.” Daisy Walls (“Walls”) answered his knock, and he apologized for the late delivery because the packages had been scheduled for delivery the previous day. When he requested a signature for the packages, Walls turned to a male standing just inside the door, who was later identified as her son Daniel Walls, and asked him to sign. He scrutinized Markhart and declined to sign. Walls then said “I’ll sign the electric company.” Until that time, Walls could not have seen the address labels on the packages and Agent Markham had not mentioned that the addressee was an electrical company. Walls then examined the packages and signed Tascam Electric, DGW. During this exchange, Markhart noticed approximately 10-15 people in the front room of the house, apparently having a party.
After Agent Markhart’s departure, Sharee Williams and Daniel Walls exited the rear of the house with the packages, and proceeded down the alley and into the rear basement door of 9127 S. Colfax. Shortly thereafter, the two emerged from the basement and Williams returned to 9121 S. Colfax while Daniel Walls went to
After arresting Walls, the agents brought Williams into the kitchen. She declared that she had nothing to hide and gave written consent for the search of her basement apartment at 9127 S. Colfax. A search of the basement apartment revealed: a clear plastic bag containing marijuana in a dresser drawer; approximately $4000 in U.S. currency inside a basket of clothes; approximately $1000 in U.S. currency in a safe; and a box of rubber gloves, tinfoil, plastic bags, white powder, paper masks, and a digital scale, all of a type used in packaging and weighing cocaine for sale, on or near the kitchen table. In addition, the search yielded a Ravens Arms .25 caliber firearm in a dresser drawer of the bedroom. A photograph taken by the agents revealed some clothes next to the firearm, which appeared to be boxer shorts and a tie or possibly a scarf. At the DEA office, Williams acknowledged her Miranda rights and signed a written statement declaring that she was at Walls’ house when the package arrived, that she saw the package on the table and knew it contained drugs but did not know the type or quantity, and that Walls wanted the packages removed from her house and she volunteered to take them to her home. A jury convicted Walls and Williams on all charges, and they now raise a multitude of challenges to those convictions.
II.
Walls first contends that the initial search of the FedEx packages by the FedEx employees violated the Fourth Amendment because it was a joint endeav- or between deputy sheriffs and FedEx employees. As support for this argument, Walls points to testimony at trial that Gheric Bruce, the security officer for FedEx who conducted the initial search of the package in Memphis, was also a commissioned officer of the Shelby County Sheriffs Department. He had been an employee of FedEx for 11 years, and the scope of his involvement with the Sheriffs Department is unclear other than his testimony that he was not a sheriffs deputy but was commissioned by the Department.
This argument was raised for the first time in this appeal, and is waived. Prior to trial, Walls moved to suppress the contents of the packages on the basis that private investigators and private police should be subject to the strictures of the Fourth Amendment under
Marsh v. Alabama,
326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). In
Marsh,
the Court held that a “company town” was subject to the First
Walls next challenges DEA Drug Task Force member Barnett’s field test of the contents of the package. She maintains that the search was constitutionally defective because Barnett was not told why the package was suspicious prior to conducting the test, and the cocaine was not in plain view. That characterization of the facts is belied by the very testimony quoted in Walls’ brief. Barnett testified that before he conducted the field test, he was informed that FedEx had already tested the contents of the package and believed it contained cocaine. It is irrelevant that he did not know details concerning the test such as the name of the person who conducted it. Walls’ argument relies on selective use of testimony and is frivolous.
The final argument raised by Walls is that the government agents’ entrance into her home at 9121 S. Colfax violated the Fourth Amendment because she did not consent to the agents’ entrance. A warrantless entry into a residence to effect an arrest is presumptively unreasonable under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Saadeh, 61 F.3d 510, 516 (7th Cir.1995). Where, however, someone with authority to do so consents to the entry, the entry is reasonable and the Fourth Amendment is not violated. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We examine the totality of the circumstances to determine whether a consent is voluntary, or the product of duress or coercion. Id. at 227, 93 S.Ct. 2041.
The record is devoid of evidence that the consent in this casé was involuntary. A large group of people was at the residence with Walls at the time the agents approached, and their conduct indicates that they were neither intimidated by the agents’ presence nor ignorant of the right to refuse entrance. When the agents knocked at the door, the occupants of the house refused to open the door and shouted that the agents could not enter and that they needed a warrant, addressing them with vulgar and profane language. Moreover, when Walls came to the door, the agents identified themselves and informed her that they were conducting an investigation regarding the two packages that had been delivered. In response to that statement, Walls opened the door and stepped back to allow their entrance. The
Walls’ reliance on Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), is misplaced, because in Johnson the officers demanded entry under color of office, and consent to their entry was granted “in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” In contrast, no evidence was presented in this case that the agents demanded entry, or that Walls allowed them entry “in submission to authority” rather than voluntarily. This conclusion is further buttressed by the refusal of the other occupants of the home to allow them entry, demonstrating that the atmosphere was not one of intimidation. There is simply nothing in the sequence of events that evidences coercion or duress, and the trial court did not err in holding that she voluntarily consented to the entry. Accordingly, Walls’ conviction is affirmed.
III.
A.
Williams also raises a number of challenges to her convictions and her sentence, and fares somewhat better. First, Williams argues that the court erred in redacting a portion of the statement that she gave to the police. The statement, with the redacted portion in italics, read as follows:
I noticed the package was on the table. I knew drugs were in the package but I did not know what kind of drugs or how much was in it. Daisy probably knows who the contact person is. Daisy said get this shit out of here, and I volunteered to take it to my house. I think Daisy knew drugs were in the package. I put it on the basement table in my house where I stay at.
Williams objected to the redaction of “Daisy said get this shit out of here,” which preceded Williams’ offer to take the package to her house. According to Williams, the prefatory phrase was not damaging to Walls and thus need not have been redacted, whereas it was essential for a fair understanding of her offer to remove the package. We cannot agree with that characterization. Under
Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the court properly redacted the statements concerning Daisy Walls. The portion of the sentence that Williams identifies was incriminating to Walls because a jury could interpret it as evidencing knowledge by Walls that the package contained contraband. We review the decision to redact for abuse of discretion, and find none here.
United States v. Hubbard,
61 F.3d 1261, 1277 (7th Cir.1996). Once the court ruled that the redaction was necessary, Williams could have moved for a severance if she believed that the redaction prejudiced her defense, but she failed to do so. Therefore, she has waived any such claim here. We further note, however, that Williams cannot demonstrate any prejudice from the exclusion of those sentences. In fact, the redacted sentences would have merely reinforced the impression that Williams was involved in the conspiracy. Her willingness to volunteer her services in transporting the packages does not become less incrimina
B.
Williams also attacks her conviction for possession’ of a firearm as a felon under
In order to properly determine the applicability of
Pinkerton
to this case, we must examine the basis for the
Pinkerton
ruling. The holding in
Pinkerton
flowed from a number of established propositions. First, a person may be convicted both for a conspiracy and a substantive offense, and “it is not material that overt acts charged in the conspiracy count were also charged and proved as substantive offenses.”
Id.
at 643-44, 66 S.Ct. 1180. Second, an overt act of one conspirator may be the act of all without any new agreement specifically directed to that act.
Id.
at 646-47, 66 S.Ct. 1180. The Court then considered whether a conspirator could be found guilty of the substantive offense committed by a co-conspirator in furtherance of the conspiracy. It held that the governing principle
In accordance with that reasoning, we have held that
the jury [asked to decide a case under the Pinkerton doctrine] must be made to focus on the coconspirator’s act, on whether it is a crime, on whether the coconspirator’s guilt of this crime was proved beyond a reasonable doubt, and on whether it was committed in furtherance of the conspiracy in which the defendant participated.
United States v. Manzella,
791 F.2d 1263, 1268 (7th Cir.1986).
See also United States v. Sandoval-Curiel,
50 F.3d 1389, 1394-95 (7th Cir.1995);
United States v. McKenzie,
922 F.2d 1323, 1330 (7th Cir.1991);
United States v. Diaz,
864 F.2d 544, 549 (7th Cir.1988). The government’s use of
Pinkerton
in this case takes this one step farther in that it seeks Pinkerton liability based in part upon acts by a co-conspirator that did not constitute the crime. There are no allegations that a co-conspirator was guilty of violating
For instance, under such a use of
Pinkerton,
even lawful possession of a firearm by a conspirator could presumably be used to establish a
Finally, the felon-in-possession statute seems a particularly inappropriate vehicle for such an expanded use of
Pinkerton
liability. It criminalizes conduct that could otherwise be lawful based upon the status of the person engaging in that conduct.
United States v. Jester,
139 F.3d 1168, 1170 (7th Cir.1998) (recognizing status as one element of a
Theoretically, the application of
Pinkerton
here would also invite the future inverse use of the doctrine to attribute a felon’s possession of a firearm to his non-felon co-conspirator. A non-felon could be deemed guilty of being a felon in possession of a firearm. That ridiculous prospect reveals the fundamental problem with extending
Pinkerton
liability to the felon-in-possession statute. Because
The government nevertheless asserts that the verdict is supported under the alternative theories of actual or constructive possession. We have in the past examined whether a conviction can be upheld based on alternative theories of liability where a Pinkerton instruction was improperly given. See, e.g., United States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir.1990). In the recent case of Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), however, the Supreme Court clarified the analysis that is appropriate where an improper jury instruction essentially removes an element of the offense from the jury’s consideration. That is precisely what happened here, because the Pinkerton instruction allowed the jury to convict without determining whether Williams possessed the firearm. It matters not whether we characterize the error here as a misdescription of the element of possession or as an omission of it, because Neder recognized that “[i]n both cases — misdescriptions and omissions — the erroneous instruction precludes the jury from making a finding on the actual element of the offense.” Id. at 10, 119 S.Ct. 1827; see also Lanier v. United States, 205 F.3d 958, 963-64 (7th Cir.2000). The Ned-er Court held that the harmless error rules apply to such a situation, and that the conviction can be upheld only if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. Neder, 527 U.S. at 18, 119 S.Ct. 1827. The only element of the felon-in-possession statute that was at issue in the trial was the element of possession. Our inquiry, then, is whether it is clear beyond a reasonable doubt that a rational jury would have found that Williams actually or constructively possessed the firearm.
We have scoured the trial for any evidence relating to the firearm, and it is minimal indeed. The government introduced testimony that the firearm was found in a dresser drawer in the one bedroom of the apartment that appeared to be used by adults. The government also introduced a picture of the firearm as it sat in the drawer. The picture appeared to show a pair of boxer shorts and either a tie or a scarf, depending upon who was interpreting it, in the drawer next to the firearm. Williams introduced evidence that Samuel Simmons, son of Daisy Walls, shared the apartment with her. She also introduced the testimony of her mother who said that she herself had never seen the gun before, and that Williams was afraid of guns and “wouldn’t have that.” We must decide whether there is any reasonable doubt that a jury would find actual or constructive possession on that evidence.
There is absolutely no evidence that Williams ever had physical control over the gun, and thus actual possession is not a possibility. The government nevertheless
Possession may be actual or constructive. Constructive possession as used in these instructions is the ability to control cocaine or a gun.
Constructive possession, however, exists only if a defendant “knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” [emphasis added]
United States v. Garrett,
903 F.2d 1105, 1110 (7th Cir.1990). Citing
Garrett,
Williams tendered a jury instruction that essentially recited the
Garrett
definition verbatim, but the court chose not to provide it. Instead, it provided the above instruction, which was a pattern jury instruction for
If the question before us were one of sufficiency of the evidence, there is no doubt whatsoever that the evidence sufficed to demonstrate constructive possession. We have held that constructive possession may be established by a showing that the firearm was seized at the defendant’s residence.
United States v. Kitchen,
57 F.3d 516, 521 (7th Cir.1995).
See also United States v. Richardson,
208 F.3d 626, 632 (7th Cir.2000) (substantial connection to the residence sufficient);
United States v. Booth,
111 F.3d 1, 2 (1st Cir.1997) (knowledge of the firearm in some circumstances can be inferred from control of the area). A jury could infer that Williams had both knowledge of the firearm and an intent to exercise dominion and control over it merely from its presence in the bedroom that she apparently shared with Samuel Simmons. Moreover, constructive possession may be joint, and thus the possibility that Simmons had control over the firearm as well would not preclude a finding of constructive possession by Williams.
Kitchen,
57 F.3d at 521. That said, we cannot hold that the evidence of her knowledge and intent was so overwhelming that no rational jury would find otherwise. The firearm was found in a dresser drawer that arguably contained only men’s clothing in a bedroom shared by Samuel Simmons, son of codefendant Daisy Walls. No evidence was introduced that linked Williams to that firearm. For instance, no testimony was introduced that the gun was ever displayed in Williams’ presence or that she ever mentioned its existence, and no fingerprint or other evidence tied her to it. Although it is of slight value, Williams’ mother testified that Williams was afraid of guns and would not have one. A rational jury could be left with a reasonable doubt as to whether Williams knew of the firearm or intended to exercise dominion or control over it.
Neder,
527 U.S. at 19, 119 S.Ct. 1827. Therefore, under the standard set forth in
Neder,
we must reverse the
C.
The remaining issues are unavailing, and will be addressed only briefly. Williams challenges a jury instruction that was endorsed by this court in
United States v.
Finally, Williams cannot succeed on her claim that her sentence should be reduced because she was only a minor participant. A defendant is entitled to a two-level reduction as a minor participant if she can show that she was “less culpable than most other participants.” U.S.S.G. § 3B1.2(b), comment (n.3). That reduction is designed to mitigate the effect of the relevant conduct assessment to the extent that a defendant’s sentence reflects conduct other than her own. Thus, the proper inquiry under § 3B1.2 is whether the defendant was a minor participant in the offense for which she was convicted, not whether she was a minor participant in a larger conspiracy above and beyond the conduct for which she is being held accountable. See United States v. Mojica, 185 F.3d 780, 791 (7th Cir.1999) and cases cited therein. Here, Williams was held accountable only for the amount of drugs she actually carried to her house. Therefore, she did not play a minor role with respect to the conduct for which she is being held accountable. See United States v. Burnett, 66 F.3d 137, 140 (7th Cir.1995) (“When a courier is held accountable for only the amounts he carries, he plays a significant rather than a minor role in that offense.”).
IV.
Accordingly, we affirm the convictions and sentences for Daisy Walls and Sharee S. Williams on the counts of conspiracy to possess with intent to distribute and conspiracy to distribute substances containing cocaine in violation of