United States v. Howard , 89 A.L.R. Fed. 2d 635 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1492
UNITED STATES,
Appellee,
v.
Deshawn Howard,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Howard, Lipez, and Thompson,
Circuit Judges.
Michael J. Sheehan on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.
July 17, 2012
THOMPSON, Circuit Judge. During the execution of an
arrest warrant, police found a gun and drugs floating in a toilet
tank and they pinned the blame on Deshawn Howard. Alleging
improperly admitted evidence, erroneous jury instructions, and
insufficient evidence, Howard now appeals from his gun and drug
possession convictions. Concluding that there is no reversible
error, we affirm.
BACKGROUND
We outline the underlying incident and the travel of the
case, saving additional details for our analysis of the purported
errors. Since Howard has lodged a charge against the sufficiency
of the evidence, all facts are recited in the light most favorable
to the verdict. See United States v. Alverio-Meléndez, 640 F.3d
412, 416 n.1 (1st Cir. 2011).
On June 10, 2009, police in Springfield, Massachusetts
received a tip that Deshawn Howard, a suspected gang member with an
outstanding arrest warrant for armed assault with intent to murder,
was at a house located at 193 Nottingham Street. A group of
approximately eight officers, some accompanied by police dogs and
armed with shotguns, were quickly assembled and dispatched to that
address. Officers arrived at 193 Nottingham Street, which
constituted one side of a side-by-side duplex, and surrounded it.
Several officers approached the front door, catching
sight of two individuals silhouetted in the living room window.
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One of the individuals disappeared and officers started pounding on
the door, announcing themselves as police, and demanding entry.
Almost immediately Cheryl Knowles opened the door yelling something
to the effect of: "Don't shoot. I'm coming out." Knowles, it was
later learned, had rented and resided at 193 Nottingham Street for
approximately ten years. She lived there with her twenty-five-
year-old son Lyle Treadwell, who was a friend of Howard's.
Knowles was ushered outside and officers headed into the
house to locate Howard. Howard had moved to the rear of the house
and he was spotted peering out a small bathroom window by officers
stationed in the back yard. Officers raced through the house but
did not encounter Howard. Some officers near the bathroom noted a
stairway and followed it into the basement. Howard was not down
there but a door leading to the basement of the adjoining duplex
had been kicked in. Officers found Howard in that adjoining
basement crouched behind a washing machine. A scuffle ensued and
Howard was taken into custody.
Howard was brought outside where he was treated for a
head laceration sustained during the fracas. Once the arrest had
been successfully executed, things calmed down and weapons were
stowed. Knowles was presented with a consent to search form, which
she signed. After securing Knowles' written permission, officers
entered the house and performed an organized search. Officer
Edward VanZandt searched the bathroom where Howard had been
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previously spotted.1 On the bathroom vanity VanZandt found a cell
phone (later determined to be a pre-paid phone with pictures of
Howard on it) and a burning cigarette (later determined to contain
Howard's DNA). VanZandt lifted the lid on the toilet tank and
discovered a loaded semiautomatic handgun and a large bag of
individually wrapped crack cocaine rocks floating on top of the
water. In the kitchen, other officers discovered more contraband
on the kitchen table - another bag of individually packaged crack
cocaine rocks, numerous unused plastic bags, and two digital
scales. Howard was transported to police headquarters where $200
in cash was found on his person.
A federal grand jury returned a three-count indictment
against Howard, charging him with possession with intent to
distribute cocaine base (Count 1), 21 U.S.C. § 841(a)(1), being a
felon in possession of a firearm (Count 2), 18 U.S.C. § 922(g)(1),
and possession of a firearm in furtherance of a drug trafficking
crime (Count 3), 18 U.S.C. § 924(c)(1)(A). The indictment also
included an aiding and abetting charge for Counts 1 and 3.
Prior to trial Howard moved to suppress the gun, drugs,
and other evidence seized by police, arguing lack of probable
cause, lack of a search warrant, and lack of consent.
Additionally, he argued that the waiver completed by Knowles was
1
Howard argues that this search actually occurred prior to
Knowles giving consent. We will get to this later.
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obtained by coercion. Following a three-day evidentiary hearing,
the district court denied the motion in an oral decision. Among
other things, the judge found that Knowles willingly and knowingly
consented to the search and the search did not begin until consent
was given.
On December 6, 2010, the case proceeded to trial. After
five days of testimony and a couple of hours of deliberation, the
jury found Howard guilty on all counts. He was sentenced to
thirteen years and three months in prison. Howard now appeals,
taking a threefold approach. First, he claims officers searched
the home prior to obtaining Knowles' consent and therefore the
district court erred in denying his motion to suppress. Next,
Howard argues there was insufficient evidence to support the
district court's jury instructions on joint possession and aiding
and abetting. Finally, he asserts there was insufficient evidence
to support a finding that he possessed the gun and drugs.
ANALYSIS
A. Motion to Suppress
Review of a denial of a motion to suppress is bifurcated.
We review findings of fact for clear error and legal conclusions de
novo. See United States v. Tiem Trinh, 665 F.3d 1, 9 (1st Cir.
2011). "A clear error exists only if, after considering all the
evidence, we are left with a definite and firm conviction that a
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mistake has been made." United States v. Brake, 666 F.3d 800, 804
(1st Cir. 2011) (internal quotation marks omitted).
Howard challenges the court's decision to admit the gun,
drugs, and drug supplies into evidence claiming that the contraband
was the product of an unlawful search. Howard's argument is a
strictly factual one. He takes aim at the court's finding that the
search occurred after Knowles gave consent.2 In support, he
singles out VanZandt's search of the bathroom. By way of a brief
background, we present VanZandt's chronology, as established by his
trial testimony: VanZandt entered the home behind the initial wave
of officers; he traveled through the living room, into the kitchen,
and then into the bathroom; he then went to the basement where
Howard was already in cuffs; he then conducted a search of the
bathroom.
Howard argues that VanZandt's testimony establishes that
these events took place in immediate succession. And, by Howard's
estimate, twenty minutes elapsed between Knowles being removed from
the home and her consenting to the search. Thus Howard theorizes
that the search must have occurred before Knowles gave consent. In
further support of his challenge, Howard points to a photograph
that another officer took of his half burnt cigarette, arguing that
2
This is a departure from Howard's approach at the
suppression hearing, which consisted of first, countering the
government's contention that Howard (as a guest in Knowles' home)
did not have standing to challenge the search and second, arguing
that Knowles' consent was not voluntary.
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the cigarette would have burnt further down and there would be more
ashes if it had been left smoking for twenty minutes.
Whether Howard's theorem on the chronology of VanZandt's
actions is or is not accurate, we need not say. VanZandt did not
testify at the suppression hearing; he only testified at trial.
Similarly, the photograph of the cigarette was only introduced at
trial. Although Howard acknowledges this point, he nonetheless
urges us to consider the testimony and photograph in our review of
the district court's denial of his motion to suppress and, in
particular, the court's factual finding on the search's timing.
While it is true that we may consider evidence adduced at trial
when reviewing the denial of a motion to suppress, we may do so
only if the defendant renewed his suppression motion at trial. See
United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009); United
States v. de Jesus-Rios, 990 F.2d 672, 675 n.2 (1st Cir. 1993).
Howard did not renew his motion at trial and so our review does not
include VanZandt's testimony or the photograph. Our examination of
the propriety of the suppression ruling is limited to the evidence
presented at the suppression hearing. See Scott, 566 F.3d at 245.
At the suppression hearing, documentary evidence, in the
form of the grand jury transcript, Knowles' statement to police,
her consent waiver, and photographs of the house, was introduced.
Additionally, Knowles and six Springfield police officers
testified. The officers were those involved in arresting Howard,
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obtaining Knowles' consent, searching the house, booking Howard,
taking Knowles' statement, or some combination of these things.
This evidence, taken as a whole, supports the court's finding that
consent preceded the search.
Two officers testified that the search took place after
Knowles gave consent. Though he could not recall the particulars
of how he was told, one officer explained: "I was notified the
[consent waiver] was signed and we were moving into the house. We
moved into the house." Knowles, for her part, testified that while
she was in the yard signing the consent waiver, some officers (who
at this point had Howard out of the house and in custody) were
already in the house. The two stories are not inconsistent. As
the district court explained, officers were engaged in a protective
sweep of the house at that time, looking for any individuals that
might be hidden. There is no indication that they were lifting up
toilet tank lids or otherwise searching the home for contraband.
The district court's conclusion that officers did not
start searching until Knowles gave consent was not clearly
erroneous. The motion to suppress was properly denied.
B. Jury Instructions
Howard's contention to this court is the same as it was
at trial. He argues that the evidence was insufficient to support
a joint possession and aiding and abetting instruction. "We review
de novo a preserved objection to the trial court's decision to give
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a requested jury instruction." United States v. Whitney, 524 F.3d
134, 138 (1st Cir. 2008).
Prior to the start of trial the government supplied the
court with proposed jury instructions. These included a suggested
joint possession instruction and an aiding and abetting instruction
with regard to the drug possession count.3 We fast-forward to
trial. There Howard offered only one piece of evidence in his own
defense. The evidence (given to the jury in the form of a
stipulation) was that Lyle Treadwell, Knowles' son who was living
with her at the time of Howard's arrest, had three convictions
extending from 2002 to 2008 for gun and/or cocaine possession.
When the time came to debate the merits of its proposed
jury instructions, the government pointed to this evidence in
support of its joint possession and aiding and abetting
instructions. It argued that Howard's pointing the finger at
Treadwell, and the evidence adduced at trial, supported an argument
that Howard possessed the drugs in cahoots with Treadwell or
perhaps Knowles. Howard objected to the proposed instructions. He
claimed that he was the government's sole target and that the
government did not present any evidence that the drugs belonged to
anyone else. He further claimed that to the extent the inference
had been raised that the drugs belonged to Treadwell or Knowles,
3
The government also sought an aiding and abetting charge in
connection with the possession of a firearm in furtherance of a
drug crime count. The court ultimately denied this request.
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there was no evidence that Howard was working in concert with them.
The trial judge disagreed, citing Howard's lone piece of evidence -
the stipulation of Treadwell's convictions. The court indicated
that this evidence put the issue "squarely in the jury's lap" since
Howard had suggested during his defense case that the drugs
belonged to another. The court gave the requested instructions.
As a general matter, "[j]oint possession occurs when both
the defendant and another person share power and intent to exercise
dominion and control over contraband." United States v.
Georgacarakos, 988 F.2d 1289, 1296 (1st Cir. 1993) abrogated on
other grounds by United States v. Scott, 270 F.3d 30, 35 (1st Cir.
2001). Constructive possession, which is the theory the government
relied on, can be joint. See United States v. Hicks, 575 F.3d 130,
139 (1st Cir. 2009). As for aiding and abetting liability, the
government must prove that the principal committed the charged
substantive offense and that the accomplice was associated with and
took part in the criminal endeavor, intending to achieve its
success. See United States v. Gonzalez, 570 F.3d 16, 28-29 (1st
Cir. 2009).
Here, the evidence offered during the government's case
demonstrated that on the date of Howard's arrest, Knowles was
living at 193 Nottingham Street with Treadwell. Howard was friends
with Treadwell and friendly enough with Knowles to spend time
eating with, and socializing with, her alone. Howard was at
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Knowles' house because he was waiting for Treadwell to return home.
Individually packaged crack cocaine rocks along with drug
distribution paraphernalia (i.e., digital scales and plastic bags)
sat out in the open on Knowles' kitchen table. Crack cocaine,
packaged in the same manner as that on the table, was in the
bathroom that Howard had recently been in. The evidence offered by
Howard established that Treadwell had multiple convictions for gun
and drug possession.4
When crafting jury instructions a judge must consider all
of the evidence introduced at trial, in other words, the
government's as well as the defense's. Here the evidence, in its
totality, established that there was an individual, with a
significant criminal past involving guns and drugs, living at the
home where Howard, the gun, and the drugs were found. Howard used
this evidence to cast suspicion on Treadwell and Knowles, and in
doing so, raised an inference that he possessed the drugs jointly
with Treadwell or Knowles or that he hid the drugs in order to help
them out. The evidence extant and Howard's own theory of the case
4
If there was any doubt as to why Howard offered this
evidence, defense counsel hammered the point home during closing
argument. Of Knowles, counsel stated: "[O]bviously, is she going
to say that's my gun and my drugs? Is she going to say that's my
son's gun? That's my son's drugs? Or is she going to say I got no
idea?" Counsel added: "Who's to say [Knowles] wasn't there bagging
the drugs? We will never know. Who's to say [Treadwell] hadn't
been there earlier that day bagging the drugs?" The theme
continued: "You know Lyle Treadwell's history and you saw his
mother. To give him a pass when that's found in their house."
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made the joint possession and aiding and abetting instructions
appropriate. See, e.g., United States v. Carrasco, 257 F.3d 1045,
1050 (9th Cir. 2001) (finding a joint possession jury instruction
appropriate when the defendant testified, and his counsel argued,
that the gun he was charged with possessing belonged to his vehicle
passenger); United States v. Oberle, 136 F.3d 1414, 1422 (10th Cir.
1998) (finding that even though the government proceeded on the
theory that the defendant was the principal bank robber, an aiding
and abetting jury instruction was proper when there was some
evidence that the defendant was involved in preparations for the
robbery). The court did not err in giving the instructions.
C. Sufficiency of the Evidence
According to Howard, there was not enough evidence to
convict him of possessing the gun and drugs. Because he preserved
this sufficiency claim by moving for judgment of acquittal at the
close of the government's case and again at the end of trial, our
review is de novo. See United States v. Jones, 674 F.3d 88, 91
(1st Cir. 2012). When evaluating sufficiency, we examine the
direct and circumstantial evidence in the light most favorable to
the prosecution. See United States v. Cruz-Rodriguez, 541 F.3d 19,
26 (1st Cir. 2008). We then ask whether the evidence, and all
plausible inferences taken therefrom, "would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime." Id.-12-
Howard was not found with the gun or drugs on his person
and therefore the government proceeded on a theory of constructive
possession. Constructive possession "exists when a person
knowingly has the power and intention at a given time to exercise
dominion and control over an object either directly or through
others." Hicks, 575 F.3d at 139. Constructive possession can be
established through circumstantial evidence. See id.Howard's assertion that the evidence was insufficient to
establish that he possessed the gun or drugs is premised on the
following.5 First, he points out that he was a "mere guest" in
Knowles' home and no one saw the gun or drugs in his hands. He
adds that forensic evidence tying him to the gun or drugs was
nowhere to be found. Howard continues by claiming that the police
have no idea how long the items were in the toilet tank. Finally,
Howard draws our attention to the absence of any inculpatory
statements made by others or admissions made by him. Although
Howard's contentions are all true, there was nonetheless enough
circumstantial evidence to permit a rational juror to conclude that
Howard possessed - that is, had the power and intention to exercise
dominion and control over - the gun and drugs.
5
Howard does not argue that the evidence was insufficient on
any other fronts (e.g., insufficient to establish that he was a
felon, or that the gun traveled in interstate commerce, or that the
amount of crack cocaine met the requisite amount, or that the crack
cocaine was intended for distribution, or that the gun was intended
to further this distribution). Therefore we direct our inquiry
toward the possession issue alone.
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Howard and Knowles were the only individuals found at 193
Nottingham Street and officers, who had created a perimeter around
the house, never saw anyone else leave. Knowles testified that the
gun, drugs, and scales did not belong to her and she had not seen
her son bring them into the house. The gun and drugs were found
floating in the water of the toilet tank in the downstairs
bathroom. Howard was seen peering out of this bathroom just before
officers entered the house. A phone containing pictures of Howard
was found in the bathroom, as was a burning cigarette containing
his DNA. One officer testified that he had participated in the
execution of over one-thousand search warrants and that he has
never come across guns or drugs being stored in water. In the
nearby kitchen, additional drugs, scales, and plastic bags were
found on a table sitting right in the middle of the kitchen.
Howard had $200 cash on his person.
Viewing this evidence in the light most favorable to the
prosecution, we find that a rational juror could have concluded
beyond a reasonable doubt that Howard possessed the gun and drugs.
The cigarette conclusively tied Howard to the bathroom where the
gun and drugs were found. The officers' testimony established that
Howard was in the bathroom just before officers entered the home.
The drugs in the toilet tank were bagged in a manner suggesting
they were headed for distribution. The drugs on the kitchen table,
which were out in the open, were packaged the same way. In the
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moments prior to the officers' entry, Howard was undoubtedly in or
around the kitchen since the living room (where he was first
spotted) was connected to the kitchen, and the bathroom (where he
was next spotted) was adjacent to it. In fact, these are the only
three rooms on the first floor.
Even if, as Howard suggested, it is a conceivable
inference that Treadwell or Knowles elected to store a gun and
drugs in the toilet tank, there is a plausible alternative read.
That is, because of the distinct possibility that the gun and drugs
would be damaged by water, Treadwell or Knowles would not have done
so, and instead Howard, operating under the time constraints
brought on by swarming officers, hastily stashed the gun and drugs
in the tank to hide them. It was within the jury's prerogative to
choose which inference seemed most worthy of belief. See United
States v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007). Because the
jury's verdict was "supported by a plausible rendition of the
record," we uphold it. United States v. Castro-Davis, 612 F.3d 53,
60 (1st Cir. 2010).
CONCLUSION
After taking a good look at Howard's arguments, we are
satisfied that none have merit. The judgment below is affirmed.
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