United States v. PenneyUnited States v. Penney
Lead Opinion
OPINION
After a jury trial, Defendant-Appellant Terry Eugene Penney (“Penney”) was convicted of fifteen violations of federal drug and gun laws and an attempt to kill a federal agent, and sentenced to 895 months of imprisonment. Penney now appeals the district court’s denial of his motions to dismiss some of the charges and to suppress evidence, the district court’s evidentiary rulings, and the reasonableness of his sentence. Penney also argues that the evidence was insufficient to support the jury verdicts or that some counts should have been merged. We hold that the district court committed no reversible errors and, therefore, affirm.
I
Terry Eugene Penney lived at 10609 Dayton Pike, in Soddy-Daisy, Tennessee, less than three miles away from the Soddy-Daisy Police Department. Penney raised roosters and ran a bar called Penney’s Place, both familial activities that Penney has carried on. For about six years, Penney was in a tempestuous relationship with Devota Bowman, during which Bowman lived with Penney “off and on.” Soddy-Daisy police officers were no strangers to Penney’s residence, where they were called on the “numerous occasions” when the relationship between Penney and Bowman turned violent. The last of such visits took place on August 2, 2003, when, according to the police report, Penney had “pushed [Bowman] out,” and she had left the residence. By August 18, 2003, Bowman had again moved back in with Penney.
On the morning of August 19, 2003, following another quarrel with Penney, a barefoot Bowman hitch-hiked to the Soddy-Daisy police station to file a complaint for assault against Penney. While Bowman was at the station, Penney arrived and demanded that police remove Bowman from his residence. The police arrested Penney for assault and transported him to the Hamilton County Jail. As the police officers worked on Bowman’s report, she offered information about narcotics in Penney’s house. Detective Mike Sneed requested her consent to search the residence; Bowman agreed and signed a consent form.
Soddy-Daisy officers then accompanied Bowman to the Dayton Pike residence. Bowman led the officers, including Sneed, to the front door, which was locked. Because she did not have a key, Bowman went around to the back door, which she opened without a key. Sneed later learned that only a special “trick” opened the back door. Bowman led the officers around the house, pointing to various items of contraband and picking up her own clothing and personal items as they walked. Officers uncovered numerous guns, cash, scales, and narcotics, removing some of these items from unlabeled, unlocked containers. Police officers then took their search outside the house, discovering a .22-caliber rifle in a pick-up truck and a shotgun in the chicken house.
The next day, Penney, having been released, went to the Soddy-Daisy police station to inquire about his guns. Sneed explained that the guns were confiscated as a result of a search, to which Bowman consented. Penney informed the police that Bowman did not live with him and had no authority to consent to the search.
Following the search on August 19, 2003, the Soddy-Daisy Police and the Bu
Prompted by this conversation, Detective Sneed obtained an anticipatory search warrant for Penney’s residence, business, vehicles, and person. The warrant was executable only after Penney met with the Cl “to examine and attempt to purchase the narcotics by obtaining funds or promising to obtain funds in the near future in order to complete the transaction.” On January 13, 2004, at approximately 12:20 pm, the Cl went to Penney’s residence, where he found Penney alone without Cotton. In the course of a recorded conversation between the Cl and Penney, Cotton telephoned Penney, indicating that he was on his way. The Cl left, and made at least three recorded phone calls to Penney to determine whether Cotton had arrived. When Penney finally told the Cl to return to the residence, the Cl arrived, wired, at approximately 6:15 pm. The Cl went inside the residence, met Cotton and Penney, and told Cotton he wanted to see the money. Cotton agreed, stating that he had $35,000 for fifty pounds of marijuana, at $700 per pound; Penney was to receive $100 per pound as the middle-man. Penney remained inside, as the Cl and Cotton stepped outside. Cotton showed the Cl the money inside Cotton’s vehicle. The Cl stated that he could see the money, a predetermined statement to indicate to the police that they should execute the warrant.
Soddy-Daisy police, Hamilton County Sheriffs Department, and ATF officers moved to execute the search warrant. All of the officers were wearing dark bulletproof vests with appropriate official insignia on front and back, identifying them as law enforcement. Some of the officers (the “entry team”) knocked on the front door, yelling “Sheriffs Department! Search warrant! Get on the ground!” Other officers, including Sneed, Hamilton County Detective Marty Dunn, and ATF Special Agent Paris Gillette, circled around to the back of the residence, where the vehicle with the money was parked. Sneed testified that as he approached, he saw Cotton and the Cl being taken into custody by other officers, and heard activity inside the residence. As Sneed went toward the residence, he heard gunshots. When Sneed approached the back porch, Detective Dunn, who was standing at the back door, told Sneed that Penney had shot him. Penney yelled that he wanted to see a badge, and Dunn threw his badge through the open back door. Sneed also called out to Penney identifying himself, and Penney recognized his voice. Sneed entered the residence with his gun drawn and saw Penney holding a shotgun. Sneed ordered Penney to put down the gun several times, and Penney eventually complied and surrendered the weapon. Detective Dunn and another Hamilton County officer, Mark King, then placed Penney in handcuffs. As a result of the operation, Agent Gillette sustained a serious head wound; Dunn and King were also injured.
The subsequent search turned up $35,000 in Cotton’s truck and five weapons
On February 11, 2004, Penney was indicted for various federal drug and firearm offenses, as well as an attempt to kill a federal agent. A jury convicted Penney of seven counts of drug-related offenses (including possession with intent to distribute, conspiracy and attempt to distribute various large quantities of marijuana and cocaine hydrochloride), two counts of being a felon in possession of firearms, two counts of possession of firearms in furtherance of drug trafficking, one count of possession of a firearm with an obliterated serial number, two counts related to discharging a firearm and an attempt to kill an officer of the United States. The district court sentenced Penney to 895 months in prison. Penney timely appealed.
II
A
Penney was charged with two counts of being a felon in possession of a firearm, in violation of
We review de novo a district court’s denial of a motion to dismiss an indictment on legal grounds. United States v. Crayton,
1
Penney argues that his 1976 state conviction cannot form the basis for charging
2
Penney contends further that he was convicted of a misdemeanor, not a felony, and that the district court did not adequately account for the numerous errors and inconsistencies in the paperwork in concluding that he was convicted of a felony. Penney was indicted on April 1, 1975 for “feloniously selling a controlled substance.” The courtroom minutes for May 19, 1976, indicate that upon Penney’s plea, he is found “guilty of Selling A Controlled Substance Schedule IV,” and is to serve “a term of 11 months and 29 days at the Hamilton County Penal Farm.” The judgment, dated May 19, 1976, states that Penney was charged with feloniously selling a controlled substance, but upon his plea, is adjudged guilty of an “attempt to commit a felony.” Penney filed a petition for a suspended sentence, in which he asserted that he pled guilty to “possession of marijuana, a misdemeanor, and was sentenced to the workhouse for a period of Eleven (11) months Twenty-Nine (29) days.” Penney’s petition was sustained at a June 28, 1976 hearing, and his sentence was reduced to five years of probation. An additional notation was added to the May 19, 1976 judgment form, stating: “6/28/76 Judgment ordered into execution — petition for suspended sentence sustained.... ”
Penney points to the inconsistency with regard to the nature of the crime to which he pleaded guilty in the May 19, 1976 courtroom minutes (“selling a controlled substance schedule IV”) and in the judgment (“attempt to commit a felony”). That inconsistency, Penney argues, should lead this court to give greater weight to his petition for probation, the only document Penney signed, in determining the nature of his conviction. We find this proposition unconvincing.
The inconsistency does not put in doubt the fact of Penney’s felony conviction for the purposes of
Second, the inconsistency between the judgment and the May 19, 1976 courtroom minutes (identifying “Selling A Controlled Substance Schedule TV” as the crime of conviction) does not erode the determination that Penney was in fact convicted of a felony. Selling a Schedule IV controlled substance was also a felony under then-Tennessee law.
Finally, the alleged inaccuracy or clerical error on the judgment form does not vitiate the “fact” of conviction that is necessary and sufficient to support a conviction under
3
In the alternative, Penney argues that he cannot be deemed convicted of a
We find it unnecessary to decide whether Penney has lost his right to possess firearms under Tennessee laws enacted after he has served his sentence for the 1976 offense.
Penney does not argue that his civil rights were restored. On the contrary, he is emphatic that he never lost his civil rights and therefore had no need to seek restoration of these rights. Appellant’s Br. at 30-33. Because the Supreme Court has rejected the argument that “[rjights retained ... are functionally equivalent to rights revoked but later restored,” Logan,
B
Prior to trial, Penney moved to suppress the fruits of the August 19, 2003 search pursuant to Bowman’s consent, as well as the fruits of the January 13, 2004 search pursuant to an anticipatory search warrant. The magistrate judge, to whom the motions were referred, recommended denying both motions;
“In reviewing a district court’s denial of a motion to suppress, this court defers to the district court’s findings of fact unless they are clearly erroneous and reviews the district court’s legal conclusions de novo.” United States v. Smith,
“The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.” Georgia v. Randolph,
Penney argues that Bowman did not have actual or apparent common authority to consent to the search. He argues that Bowman did not have actual common authority over the searched premises because she was at most an overnight guest, who was stripped even of that status prior to the search, and she did not own or have control over the chicken house or the closed containers that were opened during the search. Moreover, Penney claims, police officers could not reasonably believe Bowman had authority to consent because they received “actual notice” that she did not officially reside with Penney and that her co-occupancy of Penney’s residence was terminated either on August 2nd or August 19th, and because she did not have a key to the premises.
We need not decide whether Bowman had actual authority to consent to the search because we find that the district court did not err in its determination that she had apparent authority to do so.
On August 19, however, when Bowman arrived at the Soddy-Daisy police station, Bowman told Sneed that although the couple has broken up six months ago, they had now reconciled and that she had moved back in the day before. That morning, in the heat of argument, Penney kicked Bowman out without giving her a chance to collect shoes or her car keys. Bowman then hitched a ride with a passing motorist to the police station.
Once at the residence with Bowman, officers observed further evidence that she
The magistrate judge and the district court determined that, given what Soddy-Daisy officers learned on the morning of August 19 and what they knew about Penney’s and Bowman’s relationship, it was reasonable for them to believe that Bowman was Penney’s girlfriend and co-oceupant with common authority over the residence. The magistrate judge also noted that it was reasonable for the police not to investigate whether Bowman’s name was on the lease “as it is a reality in today’s world that consenting adults often co-habitat [sic] together without benefit of legal formalities — including those formalities relating to the establishment of property interests.”
The factual findings relied on by the district court and the magistrate judge are well-supported by the record. We agree that the facts known to Detective Sneed and other Soddy-Daisy officers warranted men “of reasonable caution in the belief that the consenting party had authority over the premises,” Rodriguez,
As may be inferred from the facts we confronted in Gillis, cohabitation need not be uninterrupted to support a reasonable belief in common authority.
The factors emphasized by Penney on appeal do not undermine the district court’s determination that police officers reasonably believed in Bowman’s authority to consent. Penney argues that police officers received “actual notice” that Bowman had no actual authority because she listed a different address on her complaint form,
The second fact — Penney’s demand that Bowman be removed from his residence— deserves greater consideration. We recognize that in the abstract, if an occupant with formal authority over the premises takes affirmative and unambiguous action to break relations with a live-in lover and to exclude the latter from the formerly shared dwelling, it may not be reasonable to believe that the latter retains common authority to consent to a search. However, the reasonableness of police officers’ beliefs is evaluated in light of all particular facts known to the officers, not by abstracting from the particulars. And in this situation, the particular facts Soddy-Daisy officers knew about this particular couple supported their belief that Bowman had common authority over the residence. The officers knew of numerous occasions when the couple has quarreled violently and reconciled, and had no reason to think that the quarrel of August 19 was any different. Lovers’ quarrels and reconciliations are as much of a “reality in today’s world” as is cohabitation without “legal formalities,” and the police cannot be faulted for not presuming that a particular quarrel put an end to the couple’s relationship and living arrangements.
Penney further points out that Bowman did not have a key to the residence, which should have indicated that she had no access or control over the residence. As the magistrate judge and the district court reasoned, this is hardly surprising in view of the circumstances: Bowman did not have a chance to even collect her shoes, let alone pick up a key.
Finally, Penney argues that the rule formulated in Georgia v. Randolph “should be extended” to his case. Appellant’s Br. at 48. In Randolph, the Supreme Court held that “[t]he co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and, objecting co-tenant, [and] his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.”
We also think that Bowman had apparent authority to consent to the search of
2
With regard to the search conducted on January 13, 2004, Penney argues that the evidence should have been suppressed because first, the triggering event identified in the anticipatory warrant never occurred, and second, there was an insufficient nexus between Penney’s residence and the contraband to support probable cause required for an anticipatory warrant.
“An anticipatory search warrant is a search warrant that ‘by its terms [takes] effect not upon issuance but at a specified future time.’ ” United States v. Miggins,
The search warrant obtained by Detective Sneed authorized the search of Penney’s residence, locked containers therein, outhouses and vehicles once “Penney meets with the C.I. to examine and attempts to purchase narcotics by obtaining funds or promising to obtain funds in the near future in order to complete the transaction.” Penney argues that this event never occurred because he never “examined” the drugs and never obtained or possessed any of the funds himself. Instead, it was Cotton who obtained the money, which remained inside Cotton’s vehicle at all times, the Cl (Stewart) who was expected to produce the drugs, and neither the money nor the drugs ever touched Penney’s hands or crossed the threshold of his residence.
As the magistrate judge and the district court concluded, Penney advances the kind of hyperteehnical interpretation of the search warrant’s language that our case law disavows. See e.g., Miggins,
Second, relying on United States v. Ricciardelli, Penney argues that the warrant was unsupported by probable cause because the triggering event did not explicitly link the evidence of a crime to Penney’s residence. In Ricciardelli, the First Circuit held that anticipatory warrants are valid only when “the contraband [is] on a sure and irreversible course to its destination and a future search of the destination must be made expressly contingent upon the contraband’s arrival there.”
To establish probable cause necessary for every search warrant, the supporting affidavit must set forth “a nexus between the place to be searched and the evidence sought.” United States v. Carpenter,
As the magistrate judge recognized, anticipatory search warrants are typically sought to conduct searches triggered by a police-controlled delivery of contraband when there is little or no evidence connecting the place to be searched with evidence of a crime other than the contraband to be delivered. See Ricciardelli,
The present search warrant, however, is not a typical anticipatory warrant contemplated by Ricciardelli. The contraband involved in the drug deal arranged by the
Detective Sneed’s affidavit contained information about prior illicit activity, which contributed to the probability that evidence of drug-trafficking would be found at Penney’s residence. Sneed described the August 19, 2003 search and the evidence recovered as a result thereof, noting that the recovered quantity of marijuana was stored in a manner “indicative of large scale marijuana distribution.” The affidavit stated that the police received information that Penney received 100 pounds of marijuana from “[Hjispanic individuals” on September 16, 2003, that a Hispanic individual was arrested with 60 pounds of marijuana and admitted having delivered 100 pounds of the drug to Penney. It further related that on January 3, 2004, a discussion between the Cl and Penney took place at the latter’s residence, arranging for a delivery of over 100 pounds of marijuana. Finally, in describing the anticipated controlled delivery, the affidavit states that “Penny has previously utilized his house and business to transact drug deals, [sic] in the house and business there will be evidence of this and other drug transactions.” (emphasis added).
It is evident that the issuing magistrate was presented with facts that indicated Penney’s more than casual participation in drug trafficking. We have repeatedly held that an issuing judge is “entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the crime and type of offense.” Williams,
In sum, although the triggering event did not explicitly require that contraband be delivered to Penney’s residence, the issuing magistrate had a substantial basis to conclude that the affidavit established a nexus between on-going drug trafficking and Penney’s residence, and that there was a fair probability that evidence of drug trafficking would be found when the triggering event took place. See also Williams,
C
Next, Penney challenges two of the district court’s evidentiary rulings: the exclusion of exculpatory hearsay testimony, and the admission of rebuttal testimony by two government witnesses. We review a district court’s evidentiary rulings for abuse of discretion. United States v. White,
1
The government filed a motion in limine to exclude testimony by Sgt. Van Hinton that, after his arrest, Penney said “you guys don’t understand, I thought I was being robbed.” Penney argued that this statement was an excited utterance or a present sense impression, and constituted an exception to the hearsay rule under
The district court decided not to admit the statement because Penney had time and motive to “contrive or misrepresent.” Sgt. Van Hinton testified, and Penney does not dispute, that the statement was made ten to fifteen minutes after the confrontation between Penney and law enforcement was over, and after EMT vehicles arrived at the scene with sirens blaring. At that point, the district court reasoned, Penney “had to have known ... that ... he had shot somebody, and most likely that that was a police officer.” The district court did not commit reversible error in concluding that because Penney knew what was at stake at the time he made the statement, the statement was unreliable. We also agree with the district court’s determination that the statement could not be admitted as a present sense impression for simi
2
Penney’s second challenge is to the admission of rebuttal testimony from two fellow jail inmates, John Shropshire and Larry Dickerson. Both men testified that, while in jail, Penney said that he wished he would have killed the police officers he had shot, so that they could not testify against him. The government sought the introduction of this testimony on rebuttal, after Penney had testified, as a prior inconsistent statement under
Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
We find dubious the proposition that a statement made months after the fact and after Penney became aware of the charges against him was relevant to establishing Penney’s intent at the time of the offense. However, we agree with the district court that the statement was relevant to the question of Penney’s credibility. The jury had to evaluate Penney’s credibility because his testimony — in particular regarding the January 13, 2004 confrontation— conflicted with that of the law enforcement officers. Penney denied saying that he wished he had killed the officers, which was directly contradicted by Shropshire’s and Dickerson’s testimony; thus, the possibility that Penney lied under oath was
We accord the district court “[b]road discretion ... in determinations of admissibility based on considerations of relevance and prejudice,” and we do not “lightly overrule” those decisions. United States v. White,
D
Finally, Penney argues that evidence was insufficient to support his convictions on Counts Six, Twenty, Twenty-One, and Twenty-Two. It appears from the record that Penney did not renew his motion for acquittal after all the evidence was presented. “[W]here, as here, a defendant does not renew his motion for judgment of acquittal for insufficiency of the evidence at the close of all of the proofs, appellate review is limited to determining whether there was a ‘manifest miscarriage of justice.’ ” United States v. Price,
First, Penney argues that there was insufficient evidence to convict him of Count Six, possession of a firearm in furtherance of a drug trafficking crime on August 19, 2003, in violation of
Second, Penney argues that there was insufficient evidence to convict him of Count Twenty, attempt to kill an officer of the United States, in violation of
Third, Penney challenges his convictions under Counts Twenty-One, discharging a firearm during and in relation to a crime of violence, in violation of
In the alternative, Penney claims that these two counts should have been merged, along with Count Twenty (attempted murder), for the purposes of sentencing. He argues that sentences for Counts Twenty-One and Twenty-Three should be merged because both are “924(c) violations stemming from the exact same incident, the exact same set of facts.” Appellant’s Br. at 56.
We have previously rejected an identical argument on substantially similar facts. United States v. Nabors,
Lastly, Penney argues that there was insufficient evidence to convict him of Count Twenty-Two. Penney’s argument relies on a misstatement of the crime of conviction. He claims that he could not be convicted for “possessing marijuana with the intent to distribute on January 13, 2004,” because there was no marijuana in Penney’s home on that date. Penney was convicted, however, of aiding and abetting an attempted possession of marijuana, along with Cotton (North). To justify a conviction on this count, the government had to prove “(1) an act by a defendant that contributes to the execution of a crime; and (2) the intent to aid in the crime’s commission.” United States v. Gardner,
We conclude that the convictions on all of the disputed counts entailed no manifest miscarriage of justice and do not warrant reversal.
Ill
Penney’s last challenge is to the reasonableness of his sentence. In particular, Penney argues that the 660 months of his 895-month sentence that were based on the three
The 660 months that Penney emphasizes as unreasonable were imposed pursuant to mandatory minimum sentences and a statutory requirement that the sentences run consecutively to any other terms of imprisonment.
IY
For the reasons stated above, we AFFIRM the district court on all issues presented.
DISSENT
Notes
. That Penney's sentence was ultimately probated is of no consequence: state law at the time permitted judges to suspend and probate sentences for felonies if the maximum sentence imposed is ten years or less. See State v. King,
. The petition for probation is of dubious probative value for yet another reason: there is no reference to marijuana as the drug at issue in any court-generated documents, and marijuana could not have been the Schedule IV drug charged in the indictment because it was classified in Schedule VI at the time. See United States v. Penney, No. 1:04-cr-036 (memorandum op.) (citing Smithson v. State,
. That court explained:
The petition for probation is the only document that purports to show the petitioner pled guilty to a misdemeanor, while the other two court documents, the judgment and the minutes, both show he pled guilty to a felony. Under these circumstances, we cannot agree with the petitioner's claim that his petition for probation, drafted by his trial counsel, is the most reliable indicator that a clerical error in the judgment may have existed. In addition, regardless of whether we decide the clerical error existed in either of the remaining two court documents, the judgment or the court minutes, the result is the same, the petitioner is a convicted felon.
Penny v. State,
. Magistrate Judge Carter recommended the denial of the motions to suppress with the exception of the firearm found in Penney’s pick-up truck, over which the magistrate judge determined Bowman had no actual or apparent authority.
. The district court did not unambiguously specify on what basis it found Bowman's consent to be valid, stating that she had "actual and/or apparent authority to consent.”
. That a magistrate may rely on information in the affidavit other than the facts regarding the anticipated event in the context of an anticipatory search warrant is undisputed. Federal courts, including ours, have relied on such information to uphold a broader scope for the search than would be justified on the basis of the "triggering” controlled delivery alone. See, e.g., United States v. Rey,
. Moreover, we note that the exclusion of this statement was unlikely to have affected Penney’s substantial rights because the jury was presented with the same information as was contained in the excluded statement: Penney himself presented his argument that he did not know he was shooting at police officers and that he thought he was being robbed, and Agent Melia testified that Penney told him the same thing when Melia interviewed Penney shortly after his arrest.
. We express no opinion on the question of whether Shropshire’s and Dickerson’s testimony was properly admitted as a prior inconsistent statement under
Dissenting Opinion
dissenting.
I disagree with the Court’s holding that the local Soddy-Daisy police had the authority under the Fourth Amendment to search Penney’s home without a warrant on August 19, 2003, because Bowman, as Penney’s intermittent, live-in girlfriend, had the “apparent authority” to consent to the warrantless search. Therefore, I disagree with Section II.B.1 of the Court’s opinion. “Apparent authority” is absent because the local police had observed and knew that the girlfriend had just come to the police station that morning where she had stated that Penney had made her leave his house — had actually “thrown her out.” They knew that she had no key and that they would, and did, have to break into the house. The record is clear that they also had observed and knew that Penney had followed the girlfriend to the police station and had told the police he had removed her from his home and did not want her staying there any longer. He made a request of the police that she be kept off of his property. All of these facts are clear in the record. The Court does not deny that these are the facts of the case. It does not point to any factual dispute to be resolved concerning these facts.
Based on these undisputed facts, it is beyond me to understand how the girlfriend could have any kind of authority, actual or apparent, from Penney to consent to a search of his home. In my view, the Court has not performed its judicial duties in an impartial manner on this issue and has simply followed its inclination to favor the authority of the police over the liberty of the individual citizen granted by the Fourth Amendment. “The right of the people to be secure in their ... homes ... against unreasonable searches and sei