United States v. Jackson, Joseph ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4347
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH JACKSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:00 CR 195—Rudy Lozano, Judge.
____________
ARGUED JUNE 3, 2002—DECIDED AUGUST 7, 2002
____________
Before BAUER, RIPPLE and KANNE, Circuit Judges.
BAUER, Circuit Judge. Appellant Joseph Jackson was
convicted on two counts of possession with intent to distrib-
ute cocaine, 21 U.S.C. § 841(a)(1), one count of carrying
a firearm in connection with drug trafficking, 18 U.S.C.
§ 924(c), and one count of being a felon in possession of
a firearm, 18 U.S.C. § 922(g)(1). Jackson was sentenced
to 138 months imprisonment. He appeals his conviction
and sentence, arguing: (1) the district court erred in de-
nying his motion to suppress evidence obtained in a
search; (2) there was insufficient evidence to sustain a
conviction under section 924(c); (3) the district court
erred in denying his motion to suppress his Miranda waiv-
er and post-arrest statement; and (4) the district court
2 No. 01-4347
erred in enhancing his sentence for obstruction of justice,
pursuant to section 3C1.1 of the Sentencing Guidelines.
Because we find Jackson’s arguments without merit, we
affirm.
BACKGROUND
On March 29, 2000, at 12:45 a.m., two Gary Police of-
ficers, including Officer Eakins, were patrolling along
Route 20, near Highway 51, in Gary, Indiana. Officer
Eakins regularly patrolled this area and was aware
that truck drivers often park in the area at night. Offi-
cer Eakins also knew this location was routinely used for
the sale of drugs and the provision of prostitution services.
The officers observed a car turn into a restaurant park-
ing lot without signaling. They stopped the car and found
Joseph Jackson in the front passenger seat. In the car,
the officers also found a firearm and a small plastic bag
containing a white, rock-like substance that tested posi-
tive for cocaine. Jackson had no permit for the firearm
and was a convicted felon. Jackson and the driver were
arrested. On June 20, 2000, at 12:30 a.m., Officer Eakins
was patrolling the same area when he observed a car
driving around the same restaurant parking lot. The car
pulled alongside several trucks in the lot and sat next
to each truck for a short period of time before moving on
to the next truck. Based on Officer Eakins’ experience, he
believed this pattern was consistent with either prostitu-
tion or the selling of narcotics. When the officer stopped
the car, he again found Jackson in the passenger seat and
the same individual in the driver’s seat. He also found
cocaine, packaged in 13 individual baggies, under Jack-
son’s foot. Both individuals were arrested.
On November 3, 2000, at 4:02 a.m., again patrolling the
same area, Officer Eakins observed someone walking in
the middle of the right lane on Route 20, a four-lane high-
No. 01-4347 3
way. Concerned for the safety of this person, as well as
drivers on the highway, the officer stopped the pedestrian
and immediately recognized him as Jackson.
Officer Eakins and another officer told Jackson that he
was in violation of the law for obstructing traffic. They
conducted a pat-down search and found a loaded .22 cali-
ber revolver with an approximately 6-inch barrel in Jack-
son’s waistband. Jackson was arrested and searched. A
clear plastic bag, containing 26 small baggies, each of
which held a white-rock substance, later determined to be
cocaine, was found on his person.
On November 6, 2000, Gary police officers interviewed
Jackson. He admitted to possessing crack cocaine on No-
vember 3, 2000, and he explained that he had purchased
dime bags of the drug from his cousin and intended to sell
them at truck stops along Route 20 to truck drivers. He
also admitted to possessing a firearm at the time of his
arrest.
Prior to trial, Jackson filed a motion to suppress the
firearm and drugs seized on November 3, 2000. Jackson
also moved to suppress the statement he gave to law
enforcement officers on November 6, 2000, arguing that
this statement was obtained in violation of Miranda v.
Arizona. After separate evidentiary hearings, the district
court denied both motions.
Jackson was tried by a jury and convicted on 4 counts:
two counts of possession with intent to distribute cocaine,
21 U.S.C. § 841(a)(1), one count of carrying a firearm in
connection with drug trafficking, 18 U.S.C. § 924(c), and
one count of being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1). At sentencing, the district court en-
hanced Jackson’s sentence for obstruction of justice, based
on its finding that Jackson falsely testified at the sup-
pression hearing. Jackson was sentenced to serve 138
months imprisonment. This appeal followed.
4 No. 01-4347
ANALYSIS
A. Motion to Suppress Evidence
Jackson first argues that the district court erred when it
denied his motion to suppress the firearm and crack cocaine
recovered from his person on November 3, 2000. We review
a district court’s findings of fact in a suppression hearing
for clear error and its conclusions of law de novo. United
States v. Meyer, 157 F.3d 1067, 1079 (7th Cir. 1998). A
factual finding is clearly erroneous when, although there
is evidence to support it, the reviewing court is “left with
the definite and firm conviction that a mistake has been
made.” United States v. Gravens, 129 F.3d 974, 978 (7th
Cir. 1997). Given the fact-specific nature of motions to
suppress, “reviewing courts give special deference to the
trial court that heard the testimony and had the best
opportunity to observe the witnesses at the suppression
hearing.” United States v. French, 291 F.3d 945, 951 (7th
Cir. 2002).
Jackson argues that the officers’ search of his person and
seizure of the drugs and the firearm on November 3, 2000,
violated his Fourth Amendment rights. The Fourth Amend-
ment protects against “unreasonable searches and sei-
zures,” and generally police officers must have probable
cause before making an arrest or conducting a search.
This amendment does not preclude any encounter between
the police and citizens. United States v. Swift, 220 F.3d
502, 506 (7th Cir. 2000). Under the principles established
in Terry v. Ohio and its progeny, even without probable
cause, police may conduct an investigatory stop, limited
in scope and executed through the least restrictive means
reasonable. Terry v. Ohio, 392 U.S. 1 (1968). To make an
investigatory stop, an officer needs only reasonable sus-
picion supported by articulable facts that criminal activity
is afoot. Terry, 392 U.S. at 30; Swift, 220 F.3d at 506.
Reasonable suspicion is “some objective manifestation that
No. 01-4347 5
the person stopped is, or is about to be, engaged in crim-
inal activity.” United States v. Cortez, 449 U.S. 411, 417
(1981).
Evaluating the reasonableness of a Terry stop, we first
look to see whether the officers’ actions were justified at
the inception of the stop; next, we examine whether the
stop was reasonably related in scope to the circumstances
that justified the stop in the first place. Swift, 220 F.3d
at 506. This analysis “involves a consideration of ‘the to-
tality of circumstances known to the officers at the time
of the stop’ ” Id. (quoting United States v. Quinn, 83 F.3d
917 (7th Cir. 1996)). This includes the “experience of the
law enforcement agent and the behavior and character-
istics of the suspect.” United States v. Odum, 72 F.3d 1279,
1284 (7th Cir. 1995). An officer may also consider wheth-
er the location of the stop is a “high crime area.” United
States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999) (“courts
may consider the defendant’s presence in a high crime
area as part of the totality of circumstances confronting
the officer at the time of the stop.”). In addition, an offi-
cer’s prior dealings with the particular individual or knowl-
edge of a criminal record might also contribute to the
basis for reasonable suspicion. United States v. Mitchell,
256 F.3d 734, 737 (7th Cir. 2001) (discussing officer’s
prior knowledge of defendant’s history); United States v.
Walden, 146 F.3d 487, 491 (7th Cir. 1998) (“a criminal rec-
ord in conjunction with other information can form the
basis of a reasonable suspicion”).
A proper Terry stop must be reasonable in scope and
duration and officers are permitted to take reasonable
steps to insure their own safety. Terry, 392 U.S. at 30.
Accordingly, the search must “be confined in scope to
an intrusion reasonably designed to discover guns, knives,
clubs or other hidden instruments for the assault of
the police officer.” Id. at 29. This includes conducting a
pat-down search of the outer clothing of the stopped individ-
ual. Id. at 29-30.
6 No. 01-4347
In light of these standards, we agree with the district
court that the police properly seized the firearm from
Jackson’s waistband. Officer Eakins and another Gary
officer observed Jackson walking down the middle of
a four-lane highway at approximately 4:20 a.m., conduct
which constitutes the offense of obstructing traffic. The
officers were aware that they were patrolling a high crime
area known to be the location of drug traffic and the sale
of prostitution. Upon nearing Jackson, Officer Eakins rec-
ognized him from the two previous arrests in which he
recovered drugs and a firearm from Jackson at almost
the same location. Eakins also knew that Jackson was a
convicted felon. On this basis, it was reasonable to sus-
pect that Jackson was engaging in drug-related activity.
These facts amount to the requisite reasonable suspicion
to make the investigatory stop under Terry. With the
knowledge that Jackson was armed in the past, the officers
were appropriately concerned for their safety; they con-
ducted a pat-down search, limited in scope to only Jack-
son’s outer clothing, and found a firearm in his waist-
band. This firearm was properly seized and the district
court did not err in denying Jackson’s motion to suppress.
Similarly, the officers’ seizure of the crack cocaine
was lawful as well. It is well established that after an
officer makes a lawful arrest, he may conduct a warrant-
less search of the arrestee’s person incident to that arrest.
United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.
1993). Such a search will be upheld as lawful where it “was
contemporaneous with the arrest, was conducted to pre-
vent seizure of a weapon or destruction of evidence, and
was limited to the area within the arrestee’s immediate
control.” United States v. Queen, 847 F.2d 346, 352 (7th Cir.
1988). Given Eakins’ knowledge of Jackson’s previous
record, the police had probable cause to believe that Jack-
son was a felon in possession of a firearm. Recovery of
the crack cocaine in Jackson’s pocket was the product of
No. 01-4347 7
a lawful search incident to arrest. Accordingly, we find
that the district court properly denied Jackson’s motion to
suppress the crack cocaine.
B. 924(c) Conviction
Next, Jackson contends that there was insufficient
evidence to convict him under 18 U.S.C. § 924(c). We note
at the outset that Jackson bears a “heavy burden” in
making this challenge. United States v. James, 923 F.2d
1261, 1267 (7th Cir. 1991). In evaluating his claim, we re-
view all the evidence and all reasonable inferences that
can be drawn from the evidence in the light most favor-
able to the government. Id. The test is whether, after view-
ing the evidence, “any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). We will overturn a jury’s verdict
only if “the record contains no evidence, regardless of
how it is weighed, from which the jury could find guilt be-
yond a reasonable doubt.” United States v. Moore, 764 F.2d
476, 478 (7th Cir. 1985) (internal citations omitted).
To sustain a conviction under section 924(c), the gov-
ernment must prove (1) that the defendant carried a
firearm, and (2) that the carrying was during and in
relation to the crime of possession with intent to distrib-
ute cocaine. Young v. United States, 124 F.3d 794, 800
(7th Cir. 1997). Jackson concedes that the government
presented sufficient evidence that he was carrying a
firearm; however, he maintains that the conviction can-
not stand because there is no evidence that he was in
the process of facilitating a drug transaction at the time
the officers stopped him and recovered the firearm. As a
result, he argues, the government failed to satisfy the
second prong of this inquiry. We disagree.
Under section 924(c), to establish that the firearm was
used “during and in relation to” the drug offense, the gov-
8 No. 01-4347
ernment must establish that the defendant transported
a firearm during a drug offense. The focus of this anal-
ysis rests on the location of the firearm in relation to the
drugs: “if the drugs and the gun are together in the same
place, it is nearly an inescapable conclusion” that they sat-
isfy this prong for a conviction. United States v. Molina,
102 F.3d 928, 932 (7th Cir. 1996) (the relation between
the firearm and the drugs is “the core of the offense”).
This provision reflects the frequent use of firearms in
drug transactions to protect both the dealer and the drugs.
See Young, 124 F.3d at 801 (“The self-protection motive
establishes the relation between drugs and guns”); United
States v. Hubbard, 61 F.3d 1261, 1270 (7th Cir. 1995) (“fire-
arms are recognized as tools of the drug trade; . . . posses-
sion of a weapon is often a hallmark of drug trafficking.”).
We believe that these standards were satisfied in Jack-
son’s case. At trial, the jury heard testimony that at the
time he was searched, he was carrying a loaded firearm
in his waistband and a quantity of cocaine packaged
for distribution in 26 plastic baggies. The jury also heard
that in a post-arrest statement, Jackson admitted to law
enforcement agents that his intention was to sell the
cocaine to truck drivers along Route 20, which was in
close proximity to where police stopped him. There is
more than sufficient evidence in the record to support the
“during and in relation to” element in this case to sustain
a conviction under section 924(c).
C. Motion to Suppress Miranda Waiver and Statement
Jackson also claims that the district court erred in
denying his motion to suppress his post-arrest statement
because he did not knowingly and voluntarily waive his
Miranda rights. We review whether Jackson’s Miranda
waiver was voluntary de novo. United States v. Smith,
218 F.3d 777, 780 (7th Cir. 2000). However, any findings
No. 01-4347 9
of fact and credibility determinations are reviewed for
clear error. United States v. Walker, 272 F.3d 407, 412 (7th
Cir. 2001).
At the suppression hearing, three officers testified that
they were present during Jackson’s questioning. This
testimony established that before Jackson’s interview,
Miranda warnings were given, Jackson voluntarily agreed
to waive his rights and be interviewed, and the officers
presented Jackson with a waiver of rights form, which
he signed. The officers also established that they read
the contents of the Miranda waiver form aloud, asked
Jackson if he understood his rights, and had Jackson ini-
tial each right and sign to acknowledge his willingness
to talk. Although the waiver of rights form could not
be located, an FBI 302 form indicated that Miranda
rights were administered. Following the evidentiary hear-
ing, the district court denied Jackson’s motion to sup-
press, holding that his statement was made voluntarily
after a knowing and intelligent waiver of his Miranda
rights.
When a defendant makes a post-arrest statement, the
government bears the burden of proving at trial that
the statement was made following a voluntary, knowing
and intelligent waiver of Miranda rights. Miranda v.
Arizona, 384 U.S. 436, 475 (1966). Jackson claims that
because the government could not locate the signed
Miranda waiver form, it failed to satisfy this burden.
The absence of a signed waiver is not conclusive evi-
dence on the issue of whether a defendant waived his
rights. United States v. Banks, 78 F.3d 1190, 1198 (7th
Cir. 1996), vacated on other grounds, 519 U.S. 990 (1996).
Rather, whether a person in custody knowingly and volun-
tarily waives his Miranda rights depends upon the total-
ity of the circumstances. Id. A waiver need not be express,
but may be “inferred from the defendant’s understanding
10 No. 01-4347
of his rights coupled with a course of conduct reflecting
his desire to give up his right to remain silent and have
the counsel of an attorney.” Id. (citing Fare v. Michael C.,
442 U.S. 707, 724 (1979)). Courts typically look at such
factors as defendant’s background and conduct, the dura-
tion and conditions of detention, the mental and phys-
ical condition of the defendant, the attitude of the po-
lice, and whether the police utilized psychological or
physical coercion. Culombe v. Connecticut, 367 U.S. 568,
602 (1961).
At the suppression hearing, the district court heard
the testimony of both Jackson and the government wit-
nesses. The court made a credibility determination and
held that despite the lost Miranda waiver form, Jackson
was in fact advised of his Miranda warnings and volun-
tarily agreed to waive them. Given the deferential stan-
dard of review, we find no error in the district court’s
conclusion that Jackson made a knowing and voluntary
waiver of his Miranda rights.
D. Obstruction of Justice Sentencing Enhancement
Finally, Jackson argues that the district court erred in
imposing a two-point enhancement pursuant to section
3C1.1 of the Sentencing Guidelines. This section provides:
“if the defendant willfully impeded or obstructed, or
attempted to impede or obstruct, the administration of
justice during the investigation or prosecution of the in-
stant offense, increase the offense level by 2 levels.” U.S.
SENTENCING GUIDELINES MANUAL § 3C1.1. Section 3C1.1
includes perjury, which is defined as a defendant’s “ ‘false
testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory.’ ” United States
v. Turner, 203 F.3d 1010, 1020 (7th Cir. 2000) (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Before
No. 01-4347 11
imposing the enhancement, the district court must make
independent findings as to all of the elements of perjury:
falsity, willfulness, and materiality. Turner, 203 F.3d
at 1020. We review de novo whether the district court
made the appropriate findings to support an obstruction
of justice enhancement and underlying findings of fact
are reviewed for clear error. United States v. Carrera, 259
F.3d 818, 831 (7th Cir. 2001).
At the suppression hearing, Jackson testified that he
was walking on the side of the road when the officers
stopped him and that he did not have crack cocaine in his
pocket. The officers testified that they observed him
walking in the middle of the road and that they did in fact
find crack cocaine in his pocket. The district court made
a credibility determination that the officers’ testimony
was truthful and that Jackson’s version was false. On this
basis, the district court imposed the section 3C1.1 enhance-
ment.
Jackson maintains that his testimony reflects his
best recollection of what happened on the night he was
arrested. He argues that by imposing the enhancement, the
district court has unconstitutionally chilled his right to
testify. He claims that this application of section 3C1.1
forces a defendant to choose between presenting a vig-
orous defense with his version of the evidence, or face
the probability of an enhanced sentence. As a result, he
asserts, the district court improperly applied the enhance-
ment.
We disagree. Because the district court was in the
best position to evaluate Jackson’s truthfulness, we grant
special deference to its determination. See United States
v. Hickok, 77 F.3d 992, 1007 (7th Cir. 1996) (district court
is in best position to determine whether defendant com-
mitted perjury and this determination enjoys a presump-
tion of correctness). The district court reviewed Jackson’s
12 No. 01-4347
testimony and assessed his credibility. The court found
his testimony untruthful as to several points material
to the issue raised in the suppression hearing; that is,
whether there were sufficient facts to support reason-
able suspicion for a Terry stop. The court’s finding that
Jackson lied was sufficient support for the two-point
enhancement under section 3C1.1. See United States v.
Contreras, 937 F.2d 1191, 1194 (7th Cir. 1991) (dis-
trict court’s independent finding that defendant was
not truthful on the witness stand was sufficient to apply
section 3C1.1). Moreover, the Supreme Court has explicit-
ly held that a defendant cannot contend that section
3C1.1 is unconstitutional on the simple basis that it dis-
torts a defendant’s decision to testify or remain silent.
Dunnigan, 507 U.S. at 96; see also, Contreras, 937 F.2d
at 1195 (section 3C1.1 does not “impinge upon any con-
stitutionally protected right when applied to increase
the sentence of a defendant who testifies untruthfully at
trial”). “A defendant’s right to testify does not include the
right to commit perjury.” Dunnigan, 507 U.S. at 96. We
believe that the district court acted within its discre-
tion when it imposed the two-level enhancement pursu-
ant to section 3C1.1.
CONCLUSION
For the foregoing reasons, we AFFIRM Jackson’s convic-
tion and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-7-02