UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL PERRYMAN, Defendant-Appellant.
No. 20-1453
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 1, 2021 DECIDED DECEMBER 16, 2021
Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:18-cr-00317 — James P. Hanlon, Judge.
I. Background
In Spring 2018, as part of a large antidrug operation, the Drug Enforcement Administration (“DEA“) obtained a search warrant for Perryman‘s home in Indianapolis. A team of federal and local law enforcement agents arrived at the property, just as Perryman was departing in his car. After stopping Perryman and reading him his Miranda rights, the agents searched the home, which had a master suite that consisted of a bedroom, bathroom, and a large closet accessible only through the bathroom. In the master bathroom, on a shelf on top of the vanity next to the closet door, they found fentanyl, baggies, and a digital scale. In the closet, there was a loaded AR-15 rifle, three to four steps
Perryman, with the agents’ permission, called his then-girlfriend, Rasheema Moore, who arrived soon after. Although she lived elsewhere, she had signed the lease for the home. Moore said that the drugs, money, and gun were not hers.
The agents read Perryman his Miranda rights for a second time after the search, and he agreed to talk. He admitted that the drugs were his, then provided the agents with the name of his drug supplier. He did not, however, claim ownership of the gun. The rifle “belonged to a girlfriend,” Maurita Thomas, who had originally bought the weapon with Perryman at a gun show. The pair had lived together at different places over the years in homes leased under Thomas‘s name. And they occasionally went shooting together. When Perryman relocated to the home that agents would later search, the rifle went with him. The two, though, spoke regularly. During one post-arrest conversation, Perryman asked Thomas to lie about the gun. He wanted her to say that she took the weapon from one house to the other. She initially complied, telling an investigator and defense counsel that she moved the weapon. But once under oath, she admitted those statements were untrue; she lied “to protect Michael.”
Perryman was indicted on charges of possessing fentanyl with intent to distribute,
Prior to trial, the government moved in limine to exclude questioning concerning the disciplinary record of Indianapolis Metropolitan Police Department Sergeant Clifton Jones, who participated in the search of Perryman‘s home. The disciplinary offense stemmed from a complaint about Officer Jones‘s involvement in an unrelated investigation.1 The Disciplinary Board issued a “Written Reprimand” based on its review. Perryman wished to impeach Officer Jones‘s credibility using this incident and focused his arguments on evidentiary points, adding in one sentence though that “[he] should be able to exercise his rights under the Confrontation Clause.” The district court, ruling only on the evidentiary question, granted the government‘s motion in a sealed entry, concluding that any potential probative value of the evidence was substantially outweighed by the danger of unfair prejudice, misleading the jury, and confusing the issues.
The trial lasted two days. Near the end of the trial, Perryman again sought to impeach Officer Jones with the disputed evidence. The government objected, and the district court excluded the evidence. After the close of the government‘s case, Perryman moved for acquittal under Rule 29, which the district court denied. The jury convicted him on all counts. The district court sentenced Perryman to 228 months in prison, followed by five years of supervised release.
II. Discussion
Perryman argues that the evidence was insufficient to convict him on any count and that excluding Officer Jones‘s disciplinary action violated the Confrontation Clause.2 We address each argument in turn.
We review the denial of a motion for acquittal under Rule 29 de novo. United States v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017). A jury verdict will only be overturned “if, after viewing the facts in the light most favorable to the government, there was insufficient evidence to convict.” United States v. Jett, 908 F.3d 252, 273 (7th Cir. 2018). The defendant bears the burden of demonstrating that no reasonable jury could find guilt beyond a reasonable doubt. United States v. Tantchev, 916 F.3d 645, 650 (7th Cir. 2019); see also United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010) (“Such a challenge leads to a ‘reversal only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.‘” (quoting United States v. Moore, 572 F.3d 334, 337 (7th Cir. 2009))). We have described this challenge for the defendant as an “uphill battle,” United States v. Christian, 342 F.3d 744, 750 (7th Cir. 2003), a “momentous task,” United States v. Lawrence, 788 F.3d 234, 239 (7th Cir. 2015), a “‘heavy’ burden,” Jett, 908 F.3d at 273 (citation omitted), and a “nearly insurmountable” hurdle, id., one which Perryman cannot overcome for any count.
1. Possession of a Controlled Substance
“Constructive possession,” we have said, “is a legal fiction whereby a person is deemed to possess contraband even when he does not actually have immediate, physical control of the object.” Id. The defendant must have both the “power and intention to exercise dominion and control over the object, either directly or through others,” requiring some connection between the defendant and the illegal drugs. Id. That connection can come “in one of two ways.” Id. The first way is where the defendant alone maintains “‘exclusive control’ over the property where the contraband was discovered,” which allows the logical inference that the defendant possesses the drugs located there. Id. (quoting United States v. Castillo, 406 F.3d 806, 812 (7th Cir. 2005)). The second way of showing constructive possession, absent the defendant exercising exclusive control over the property, requires “‘a substantial connection’ to the location where contraband was seized,” one “sufficient to establish the nexus between that person and [any contraband].” United States v. Morris, 576 F.3d 661, 667 (7th Cir. 2009). In either case, the government can show constructive possession through direct or circumstantial evidence. Lawrence, 788 F.3d at 240.
Here, a reasonable jury could easily conclude that Perryman constructively possessed the fentanyl by his exclusive control over the drugs. Perryman confessed that the drugs were his, telling the agents immediately that the drugs belonged to him and even providing them with the name of his drug supplier. Perryman
Additional evidence further links Perryman with the drugs. The police found the fentanyl in the home where Perryman resided by himself, paid the bills, and was seen exiting when agents arrived. See Griffin, 684 F.3d at 695 (“Exclusive control over the premises allows the jury to infer the knowledge and intent to control objects within those premises ... .“). The drugs were in the master suite, where Perryman slept, by a closet filled with men‘s clothes. Perryman submits that because other people have stayed over, even leaving toothbrushes and feminine hygiene products behind, he could not have been the true possessor. But a person can still constructively possess drugs while living in a space visited by others. Whether a person maintains “exclusive control” over a residence generally turns on the number of live-in residents—requiring only one—not the number of visitors, the number of signees on the lease, or even the number of people with keys to the home. Cf. Lawrence, 788 F.3d at 240 (“If a defendant lives alone in an apartment and a search reveals contraband, proving constructive possession is relatively easy.” (emphasis added)). And both Moore and Thomas, the two most frequent visitors, denied owning the drugs. Cf. United States v. Rebolledo-Delgadillo, 820 F.3d 870, 876 (7th Cir. 2016) (“[W]e afford great deference to the jury‘s factual findings and credibility determinations.“). Therefore, the evidence demonstrating Perryman‘s possession of the drugs, combined with his confession, dooms this challenge.
2. In Furtherance of a Drug Trafficking Crime
Under
The “‘in furtherance of’ element is fact intensive. United States v. Castillo, 406 F.3d 806, 815 (7th Cir. 2005). Courts frequently “list factors that seem relevant and leave it to the trier of fact to apply them to the facts of the case at hand.” United States v. Brown, 724 F.3d 801, 803 (7th Cir. 2013). These factors include “the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.” Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). No single factor determines the outcome; this inquiry is holistic. See id. (“It can be easier to determine ‘furtherance’ by a holistic analysis than by dissecting the issue into parts ... .“).
Here, sufficient evidence establishes that Perryman possessed the gun “in furtherance” of his drug crime. The gun was located three to four steps away from large quantities of fentanyl, in the master closet, accessible only by going through the drug-filled master bathroom, and propped up against the wall, not locked
3. Felon in Possession of a Firearm
Federal law prohibits certain felons from possessing a firearm.
Here, the evidence permitted a rational jury to find that Perryman constructively possessed the weapon discovered in his closet.4 Perryman lived alone in the home where the police found the weapon and, thus, controlled the premises. While others may have had access, no one else resided there, so there was never joint ownership. And, as previously noted, when a defendant alone controls a property, a jury can reasonably assume that he controls the weapons present there. Caldwell, 423 F.3d at 758 (holding that where the defendant resides in the home, there “is sufficient [evidence] to establish that he had constructive possession of the firearms seized there“); United States v. Kitchen, 57 F.3d 516, 521 (7th Cir. 1995) (“‘Constructive possession can be established by a showing that the firearm was seized at the defendant‘s residence.‘” (quoting United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993))). Moreover, the weapon was in Perryman‘s closet, by his clothes, feet away from the drugs that he confessed to own, and in the same master suite where he slept every night. Testimony at trial
Nor does ultimate ownership of the gun matter, as Perryman contends. Owning an item is different than possessing it. See Henderson, 575 U.S. at 626 (“By its terms,
B. The Confrontation Clause
We review a direct implication of the constitutional right to confrontation de novo.5 United States v. Rivas, 831 F.3d 931, 934 (7th Cir. 2016). Absent any direct implication though, we review a limitation on cross-examination for abuse of discretion. United States v. Carson, 870 F.3d 584, 597 (7th Cir. 2017).
The Confrontation Clause protects the right of a criminal defendant “to be confronted with the witnesses against him.”
Here, the proposed line of questioning into Officer Jones‘s unrelated disciplinary action did not implicate a core value of the Confrontation Clause. Contrary to Perryman‘s many assertions, Officer Jones‘s reprimand did not involve tampering with evidence. Rather, Officer Jones‘s participation in a police investigation fifteen years ago was questioned, which the Disciplinary Board decided warranted only a written warning. Perryman has not shown, nor could he, that this irrelevant and dated offense relates to his case. See United States v. Clark, 657 F.3d 578, 584 (7th Cir. 2011) (emphasizing that “the Confrontation Clause does not give a defendant a boundless right to impugn the credibility of a witness“). Officer Jones was not motivated to lie or harbor any bias against someone unconnected to his disciplinary incident, and Perryman was otherwise able to extensively cross-examine Officer Jones about his role in the investigation. See, e.g., Hart, 995 F.3d at 589-90 (noting that the defendant had “ample opportunity to impeach or discredit” the witness); Carson, 870 F.3d at 597 (holding that there was no error where the defendant had ample opportunity to expose motivations); Clark, 657 F.3d at 584 (rejecting “barely relevant” and “highly inflammatory” questioning).
Given then that a core confrontational value was not implicated, the district court properly exercised its “wide latitude” under the Confrontation Clause to exclude the evidence. Van Arsdall, 475 U.S. at 679; see also Hart, 995 F.3d at 589 (stating that when the “defendant‘s argument indirectly implicates a core value,” we ask only whether the district court abused its discretion under the Confrontation Clause in limiting a defendant‘s cross-examination). Introducing the minor, fifteen-year-old reprimand, at best, tangentially related to truthfulness and would likely have prejudiced or confused the jury. See United States v. Recendiz, 557 F.3d 511, 530-31 (7th Cir. 2009). And again, Perryman already had a reasonable opportunity to cross-examine Officer Jones. Perryman‘s constitutional rights, therefore, were not violated.
III. Conclusion
For these reasons, we affirm the conviction.