United States v. Walls, Daisy E. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1942 & 99-1943
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAISY E. WALLS
and SHAREE S. WILLIAMS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 296--David H. Coar, Judge.
Argued November 10, 1999--Decided August 15, 2000
Before POSNER, ROVNER, and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. 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 21 U.S.C. sec.
846, and possession with intent to distribute
approximately four kilograms of cocaine in
violation of 21 U.S.C. sec. 841(a)(1). Williams
was also convicted of knowingly possessing a
firearm as a felon in violation of 18 U.S.C. sec.
922(g)(1). They now appeal those convictions.
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 Sheriff’s 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 the front of
9127 S. Colfax and began speaking on a cellular
phone. Approximately 8 to 10 males, aged 18 to
24, were in the alley behind 9127 S. Colfax at
this time, and a car was circling the block. At
that moment, the signal being transmitted from
one of the packages stopped. Concerned about
maintaining control over the cocaine, the agents
proceeded to 9127 S. Colfax and, when their knock
received no response, they forcibly entered the
dwelling. They found the unopened packages on a
table immediately inside. The agents then went to
9121 S. Colfax and knocked on the screen door. A
number of people inside shouted obscenities at
them and told them they would not open the door
without a search warrant. Daisy Walls then
appeared at the door. The agents identified
themselves and informed her that they were there
on an investigation concerning the two packages
that had been delivered. Without saying anything,
she then opened the door and stepped back. Once
they had entered, she motioned to them from the
hallway to follow her into the kitchen. After
hearing and acknowledging her Miranda rights,
Walls stated that this was the third time she had
accepted similar packages, that she did not know
what it contained the first time but that she
opened the second one out of curiosity and
discovered it contained cocaine, and that she
knew the third package contained cocaine as well.
She told the agents that the packages belonged to
Delano Target, a member of the Gangster Disciples
street gang.
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 endeavor 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
Sheriff’s Department. He had been an employee of
FedEx for 11 years, and the scope of his
involvement with the Sheriff’s Department is
unclear other than his testimony that he was not
a sheriff’s 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 (1946). In Marsh, the Court held that a
"company town" was subject to the First Amendment
because in all respects save ownership it
functioned as any other town, and the private
ownership could not alone defeat the protections
of the Constitution. Id. at 507-08. Walls thus
tendered Marsh for the proposition that a private
party may be considered a state actor under the
Constitution to the extent it supplants the
traditional roles of a government and performs
public functions. Walls contended that the Marsh
rationale applied here because "the activities of
Federal Express, which have procedures to
investigate large quantities of documents and
materials that are placed for mail delivery,
causes it to engage in a public function." We
need not address this public function argument
because Walls has abandoned it on appeal in favor
of the new argument that the FedEx employee was
operating as an agent of the government during
the search. As justification for the failure to
raise it earlier, Walls asserts that she did not
learn until trial that the FedEx employee was
also affiliated with the sheriff’s office.
Although that is relevant to the failure to raise
the issue pre-trial, it does nothing to excuse
the failure to raise it during or after the
trial. Both during the trial and in a post-trial
motion, Walls merely reiterated her disagreement
with the court’s ruling on her initial motion to
suppress. At no point did Walls raise the new
argument for suppression. Accordingly, this
argument was not raised in the district court,
and is forfeited. United States v. Olano, 507
U.S. 725, 731-35 (1993). Walls has not argued,
and we do not find, any plain error. Id.
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 (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 (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.
The record is devoid of evidence that the
consent in this case 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 district court held that her
actions constituted consent to their entry, and
we will reverse that decision only if it is
clearly erroneous. United States v. Durades, 929
F.2d 1160, 1163 (7th Cir. 1991). It is well
established that consent may be manifested in a
non-verbal as well as a verbal manner, United
States v. Cotnam, 88 F.3d 487, 495 (7th Cir.
1996), and her action in opening the door and
stepping back to allow the entry was sufficient
to convey her consent in these circumstances.
See, e.g. United States v. Rosario, 962 F.2d 733
(7th Cir. 1992) (upholding consent where occupant
of motel room gestured for the officers to enter
and stepped back, opening the door). Her consent
is further illustrated by her actions after they
entered the residence in motioning for them to
follow her to the kitchen where she could speak
with them privately.
Walls’ reliance on Johnson v. United States,
333 U.S. 10, 13 (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 (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.
1995). 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
incriminating when proceeded by a co-
conspirator’s general request that someone remove
the contraband. With the challenged phrase
included, a natural reading of the statement is
that Walls wanted the drugs removed from her home
and that Williams, realizing the packages
contained illegal drugs, volunteered to do so.
That essentially confirms her role as a courier
in an effort to facilitate the cocaine
conspiracy. Furthermore, any potential prejudice
was eliminated because Williams elicited through
other trial testimony that Walls had told her to
remove the packages. Therefore, we find no error
in the court’s decision to redact those
sentences, and no prejudice to Williams resulting
from that redaction.
B.
Williams also attacks her conviction for
possession of a firearm as a felon under 18
U.S.C. sec. 922(g)(1). In order to obtain a
conviction for felon-in-possession under that
provision, the government must establish beyond
a reasonable doubt that (1) the defendant had a
previous felony conviction, (2) the defendant
possessed a firearm, and (3) the firearm had
traveled in or affected interstate commerce.
United States v. Moore, 936 F.2d 1508, 1525 (7th
Cir. 1991); United States v. Garrett, 903 F.2d
1105, 1110 (7th Cir. 1989). Only the possession
element is at issue here. It is well-established
that possession under that statute may be
demonstrated through either actual or
constructive possession. United States v.
Kitchen, 57 F.3d 516, 520 (7th Cir. 1995). Actual
possession is demonstrated if a person knowingly
has direct physical control over a thing at a
given time. Id. at 524 n.2. Where that direct
physical contact is lacking, a defendant may
nevertheless have constructive possession if she
"knowingly has the power and the intention at a
given time to exercise dominion and control over
an object, either directly or through others."
United States v. Hunte, 196 F.3d 687, 692 (7th
Cir. 1999); Garrett, 903 F.2d at 1110 (emphasis
omitted). Those means of establishing possession
are uncontroversial and were pursued by the
government in this case. In addition, however,
the government also sought to prove the element
of possession under a theory of vicarious
liability premised on the Supreme Court’s
decision in Pinkerton v. United States, 328 U.S.
640 (1946). Under that theory, Williams could be
found guilty of possessing the firearm as a felon
even if she lacked either actual or constructive
possession, as long as another member of the
conspiracy possessed a gun. The government made
no real effort to produce any evidence regarding
the co-conspirator who possessed the firearm.
Williams’ defense theory, however, appeared to be
that Samuel Simmons, Walls’ son, was the one
involved in the drug dealing and that she was
unaware of it. The government presumably
proffered the Pinkerton instruction for the
proposition that if Williams did not possess the
gun found in her apartment, then her roommate,
Samuel Simmons, must have possessed it and that
he was a co-conspirator because she attributed
the drugs to him. Williams objected to the
submission of the Pinkerton instruction to the
jury, but the court ruled in the government’s
favor.
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.
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.
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 should be the same where the overt acts
in the conspiracy constitute a substantive
offense, and that a conspirator could be
convicted of the substantive offense committed by
a co-conspirator as long as the offense was
committed in furtherance of the conspiracy, fell
within the scope of the unlawful project, and was
reasonably foreseeable as a necessary or natural
consequence of the unlawful agreement. Id. at
647-48.
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 sec. 922(g)(1). Instead, the government
uses a cut-and-paste approach, taking the firearm
possession by one conspirator, adding it to the
felon status of another conspirator, and thereby
creating a substantive offense for that second
conspirator. It is a significant expansion of the
Pinkerton doctrine that appears to be difficult
to limit.
For instance, under such a use of Pinkerton,
even lawful possession of a firearm by a
conspirator could presumably be used to establish
a sec. 922(g)(1) violation for a co-conspirator
who is a felon. Moreover, one can easily imagine
a large-scale conspiracy, in which a
conspirator’s possession of a firearm in
California is used to obtain a felon-in-
possession conviction of a co-conspirator in
Illinois. This seems far afield from the purpose
of the felon-in-possession prohibition, which is
to "keep firearms away from the persons Congress
classified as potentially irresponsible and
dangerous." Lewis v. United States, 445 U.S. 55,
64 (1980), quoting Barrett v. United States, 423
U.S. 212, 218 (1976). It is an unwarranted, and
possibly unconstitutional, expansion of the
Pinkerton doctrine. See United States v.
Castaneda, 9 F.3d 761, 766 (9th Cir. 1993) ("due
process constrains the application of Pinkerton
where the relationship between the defendant and
the substantive offense is slight").
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 sec.
922(g)(1) violation). As stated above, Congress
enacted sec. 922(g)(1) "in order to keep firearms
out of the hands of those persons whose prior
conduct indicated a heightened proclivity for
using firearms to threaten community peace and
the ’continued operation of the Government of the
United States.’" Id. at 1171. Consistent with
that end, it exempts certain non-violent
offenders from its reach. See 18 U.S.C. sec.
921(a)(20)(A) (exempting, e.g., persons convicted
of antitrust violations, unfair trade practices,
restraints of trade, and other similar offenses
relating to the regulation of business
practices). That differentiation among felons
based on the nature of their felonies survives
equal protection scrutiny precisely because
Congress could reasonably conclude that firearms
would pose a higher risk of danger to the public
if in the hands of the felons covered by sec.
922(g)(1), than they would in the hands of the
relatively non-violent felons excluded from the
statute. Id. The government’s proposed
application of Pinkerton, however, would
eviscerate that justification. The firearm in the
hands of a non-felon (who lacks the criminal
conviction that betrays a proclivity to threaten
public safety) could be used to impose vicarious
criminal liability on a felon (who lacks the
firearm that threatens the public). The danger to
the public rationale underlying the statute thus
ceases to be relevant.
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 sec. 922(g)(1) defines the
offense in terms of the status of the individual
possessing the firearm, the vicarious liability
provisions of Pinkerton are inappropriate for
such an offense. Accordingly, the district court
erred in submitting the Pinkerton instruction to
the jury on the sec. 922(g)(1) charge.
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 (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; see also Lanier v. United
States, 205 F.3d 958, 963-64 (7th Cir. 2000). The
Neder 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. 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 argues that she had
constructive possession of it. We note that on
this issue, too, a jury instruction was
problematic. The jury was instructed only that
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 21 U.S.C. sec. 841 violations (since changed
to explicitly require knowledge and intent) but
which could be interpreted as requiring only the
power to exercise control. An identical
instruction to the one given here was challenged
in United States v. Boykins, 9 F.3d 1278, 1287
(7th Cir. 1993), on the basis that it failed to
inform the jury that intent was an essential
element of constructive possession. We upheld the
instruction in that case because other
instructions included the language that the
defendant must knowingly have both the power and
intention to exercise dominion and control. Id.
That additional language was not present here,
however, and the instruction failed to adequately
apprise the jury of the need to find intent. Like
the Pinkerton error, however, this leads us back
to the same harmless error analysis. We must
determine whether there is any reasonable doubt
that a rational jury would have found
constructive possession here.
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. Therefore, under the standard set forth in
Neder, we must reverse the sec. 922(g)(1)
conviction and remand for a new trial on that
count.
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. Osmani, 20 F.3d 266 (7th Cir.
1994), and she has provided no compelling reason
for revisiting that decision. In addition, she
asserts that the trial court erred in sustaining
objections to some testimony designed to
incriminate Wall’s son. Williams identifies with
particularity only a few objections in the
transcript, and has provided only the cursory
conclusion that the court’s ruling was an abuse
of discretion. Therefore, Williams has arguably
waived this argument. Our perusal of the
transcript pages that she did identify, however,
reveals no reversible error. Similarly, Williams’
general challenges to the sufficiency of the
evidence are without merit, as there was ample
evidence to support the jury’s conclusions.
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.
sec. 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 sec.
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 21
U.S.C. sec. 846, and possession with intent to
distribute approximately four kilograms of
cocaine in violation of 21 U.S.C. sec. 841(a)(1).
We reverse the conviction of Williams for
knowingly possessing a firearm as a felon in
violation of 18 U.S.C. sec. 922(g)(1), and remand
for a new trial on that count.