United States v. Harris, Barbara A. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1169 & 02-1179
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BARBARA A. HARRIS,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
Nos. 01 CR 22, 99 CR 49—William C. Lee, Judge.
____________
ARGUED JANUARY 16, 2003—DECIDED APRIL 8, 2003
____________
Before FLAUM, Chief Judge, and COFFEY and RIPPLE, Circuit
Judges.
RIPPLE, Circuit Judge. Barbara A. Harris was indicted on
one count of possession with intent to distribute crack
cocaine, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and
one count of being a felon in possession of a firearm, see
18 U.S.C. § 922(g)(1). After a jury convicted Ms. Harris on
both counts, she was released for one day to place her af-
fairs in order. She failed to surrender and later was ar-
rested in California. Ms. Harris pleaded guilty to one count
of failure to appear. See 18 U.S.C. § 3146(a). The court
sentenced Ms. Harris to a term of 151 months’ imprison-
ment, five years’ supervised release and imposed a total of
2 Nos. 02-1169 & 02-1179
$300 in special assessments. Judgment of conviction was
entered on January 16, 2002, and Ms. Harris filed a notice
of appeal the same day. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Barbara Harris owned a house at 1127 Michigan Avenue
in Fort Wayne, Indiana, which became the subject of an
investigation by the Allen County Police Department. On
August 25, 1999, a search of Ms. Harris’ trash uncovered
a kilogram cocaine wrapper, a crack cocaine stirring stick
and plastic sandwich bags. All of these items contained
cocaine residue. The police also recovered a razor blade
typically used for cutting crack cocaine. On August 27,
1999, officers obtained a warrant and executed it at 1:30 p.m.
After knocking and receiving no response, they breached
the doors of the well-secured house. Officer Dave Gladieux
testified that, upon entrance, he observed Barbara Harris
and her co-defendant Terrance Riley standing just inside
the doorway to the master bedroom. Ms. Harris was clad
only in panties; Riley was wearing only shorts and no shirt.
Neither appeared to have been awakened recently. The
officers cuffed each of them. In removing a blanket from
the bed to cover Ms. Harris, Officer Gladieux observed
$21,840 in United States currency on the bed. The officers
found several small children upstairs.
Riley identified himself to the officers as Quatrell Ward;
Ms. Harris corroborated that identification by nodding
that he was Ward. However, Ms. Harris later admitted he
Nos. 02-1169 & 02-1179 3
was Terrance Riley. With the aid of a dog trained to detect
the presence of drugs, the officers searched the bedroom
and discovered a Tupperware container of 87.70 grams of
recently cooked crack cocaine under a box fan tilted down,
presumably to cool the crack. The bowl was very warm
to the touch. Detective Craig Wise testified that the crack
had a street value of between $8,000 and $10,000, an
amount consistent with distribution. Detectives also dis-
covered a police scanner in the headboard of the bed and
a loaded 9mm Ruger pistol on top of the headboard. In the
kitchen, officers discovered a digital scale, a stirring
stick with cocaine residue, plastic sandwich bags and a
microwave capable of cooking crack cocaine. Moreover,
there was a second loaded 9mm Ruger in a laundry room
adjacent to the kitchen.
When questioned, Ms. Harris denied knowledge of any
drugs or guns in the house. She stated that she had worked
the night before, had come home, stayed up for a while
and made food for her children. The Kendallville, Indiana,
Nabisco plant’s records show that she did work the
10 p.m. to 6 a.m. shift the night before. Ms. Harris told
Detective Brian Gore that she was in the bedroom prepar-
ing to go to sleep, when Riley ran into the room and threw
the money on the bed after emptying it from his pockets.
The parties stipulated that Ms. Harris had a prior felony
conviction and that the firearms were not manufactured
in Indiana, so they must have “traveled across a state
boundary line and thus affected interstate commerce.”
Tr. 9/21/00 at 151.
Terrance Riley testified on Ms. Harris’ behalf. Riley had
a five-year-old child by Ms. Harris. He testified that they
had a rocky “off-and-on” relationship and that he had
hidden from Ms. Harris the fact that he had been dealing
cocaine and crack cocaine. He testified that she knew he
4 Nos. 02-1169 & 02-1179
had served prison time for drug dealing. Riley testified that
Ms. Harris did not handle the guns, use drugs or sell
drugs. He also admitted that he had given Ms. Harris drug
money, but that he had told her the money came from a
job painting cars.
Riley explained that the drug paraphernalia found in
the trash was his and that he had broken down a kilo of
cocaine while Ms. Harris was at work. Riley also gave his
explanation of what happened on the day of the arrest. He
testified that, because his normal place for preparing
drugs was unavailable on this day, he had brought the
money, scale, materials and drugs into the house while
Ms. Harris was sleeping. He had cooked a batch of crack
and had placed it on the floor in the bedroom under a fan.
Riley testified that he threw the gun and money into the
bedroom when he heard the police knocking. He had
awakened Ms. Harris to answer the door because there
was an outstanding arrest warrant for him. Riley admitted
that he originally had told the police that he had thrown
the drugs into the bedroom and that they just happened to
land under the fan.
B. District Court Proceedings
On September 22, 2000, a jury convicted Ms. Harris on
both counts. The jury also found that the violation of 21
U.S.C. § 841(a)(1) involved more than 50 grams of crack
cocaine. R.142. As noted previously, after the jury returned
its verdicts, the district court released Ms. Harris for one
day in order to permit her to place her affairs in order. She
did not report at the appointed time and was later appre-
hended in California. Upon return to Indiana, she eventu-
ally pleaded guilty to a charge of failing to appear.
Nos. 02-1169 & 02-1179 5
The district court accepted the recommendation of the
pre-sentence report that the base offense level for the drug
conviction was 32. See R.206 at 21. Two points were added
for the specific offense characteristic of two firearms be-
ing seized during the search. See id. at 5. The court added
two more points for obstruction of justice for Ms. Harris’
failure to appear as ordered. See id. at 5, 9. Finally, the court
subtracted four points based on her role as a minimal
participant, yielding an offense level of 32. See id. at 12-14.
The court reached a criminal history category of III, which
yielded a range of 151-188 months, and the court imposed
the minimum sentence. See id. at 21. In calculating the
criminal history category, the court included three points
based on prior convictions for criminal conversion (shop-
lifting). Ms. Harris argued that the prior offenses were to
be excluded under U.S.S.G. § 4A1.2(c) because they were
similar to passing an insufficient funds check, an excluded
offense. The court rejected that argument. See id. at 20. The
court grouped the failure to appear conviction with the
drug and firearm conviction pursuant to § 3D1.2(c). See
Tr. Sentencing Hr’g 1/16/02 at 15-16.
II
DISCUSSION
A.
Ms. Harris first submits that the jury’s verdict is against
the manifest weight of the evidence. In evaluating this
contention, we must determine whether, “ ‘after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” United
States v. Ramirez, 796 F.2d 212, 214 (7th Cir. 1986) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
6 Nos. 02-1169 & 02-1179
original)). To secure a conviction for violating 21 U.S.C.
§ 841(a)(1), the Government must prove: 1) knowing or
intentional possession of the drug, 2) possession with intent
to distribute and 3) knowledge that the drug was a con-
trolled substance. See United States v. Hunter, 145 F.3d 946,
950 (7th Cir. 1998); United States v. Covarrubias, 65 F.3d 1362,
1369 (7th Cir. 1995).
Ms. Harris contends that Riley’s drug manufacturing
occurred without her knowledge while she was asleep.
She bases her argument on four points of record evidence:
1) The first officer to enter the home saw Ms. Harris in the
doorway of the master bedroom in a state of undress, see
Tr. 9/21/00 at 25-26; 2) Another officer, upon entering the
bedroom with a sniffing dog, saw a fan tipped down to-
ward a dish on the floor, see id. at 47, 65; 3) Several children
were in the home at the time of the officers’ entry, see
id. at 28, 39-40; and 4) An officer described the day as
“pretty hot,” id. at 40. Ms. Harris argues that her state of
undress and the presence of children in the house substanti-
ate her testimony that she had been in the bedroom when
the police knocked and was unaware of what Riley was
doing with the drugs in another room. She would not
have been in other parts of the house in that state of un-
dress, she argues, when children were present in the
home. The testimony that the fan was tipped down to-
ward the cocaine corroborates, in her view, Riley’s story
that the crack had been placed there before the police
arrived. The fact that it was a hot day provides an inno-
cent explanation why the fan was on.
The foregoing arguments are jury arguments. They ask
the trier of fact to ascribe a particular significance to the
adjudicative facts of record. They do not require that the
trier of fact accept such an explanation, and they certainly
do not establish that there is no evidence of record from
Nos. 02-1169 & 02-1179 7
which a jury could determine beyond a reasonable doubt
that Ms. Harris, by aiding and abetting the activities of
Riley, knowingly possessed the cocaine with the intent to
distribute it.
Possession of contraband may be actual or constructive.
We agree with the Government that the evidence of record
permitted the jury to conclude that Ms. Harris construc-
tively possessed the drugs. Constructive possession exists
when the evidence sufficiently demonstrates “ownership,
dominion, or control.” United States v. Hernandez, 13 F.3d
248, 252 (7th Cir. 1994). To prove constructive possession,
the Government must show that the defendant had the
ability to exercise control over the cocaine or the power
to possess it. See id. The exercise of control need not be
exclusive, but when it is not, there must be a nexus between
the accused and the contraband. See id. Along with other
circuits, we have held that a possessory interest over the
location of the contraband can provide evidence of construc-
tive possession. For instance, we have found that registra-
tion and control over a hotel room containing cocaine can
be indicative of ability to control drugs present in the
hotel room. See United States v. Perlaza, 818 F.2d 1354, 1360
(7th Cir. 1987). We also have addressed an analogous cir-
1
cumstance in the context of car ownership. A number of
1
See United States v. Covarrubias, 65 F.3d 1362, 1369-70 (7th Cir.
1995). In Covarrubias, a married couple was convicted for pos-
session of marijuana with intent to distribute. Mrs. Covarrubias
argued that the drugs were her husband’s and that she had
no knowledge of drugs hidden in the car in which they were
riding. See id. at 1369. The court found the evidence sufficient
to establish her control over the drugs because “she owned the
car, she was married to its driver, and she had ridden in the
car for over twenty-four hours with only brief stops.” Id. at 1370.
8 Nos. 02-1169 & 02-1179
courts have found that a person may be deemed in construc-
tive possession of items found on the premises of property
2
that they own.
In our view, the evidence of record in this case permit-
ted the jury to conclude, beyond a reasonable doubt, that
Ms. Harris knowingly possessed the drugs with the intent
to distribute them. At the outset, the drugs were found in
her home. The drugs and the tools necessary for dealing
with them were found in various locations throughout the
house. She could not have helped seeing the drugs and
knowing what was transpiring. The evidence of drug
preparation in the home was significant. The officers found
$8,000 of freshly cooked crack cocaine cooling beside her
bed, $20,000 of currency on the bed, a drug scale and
stirring stick on the kitchen counter, a police scanner
and loaded 9mm Ruger semiautomatic pistol on her head-
board, and a second 9mm Ruger pistol hidden in the
laundry room. See id. at 112-18, 151.
The jury also was entitled to consider evidence that the
search of the trash from the house several days earlier had
produced a wrapper from a kilo of cocaine, baggies and
a stirring stick made from a coat hanger. See id. at 109-10,
2
See United States v. Edelin, 996 F.2d 1238, 1241 (D.C. Cir. 1993)
(finding that a “jury may infer ‘that those who live in a house
know what is going on inside,’ [and thus] ‘a person exercises
constructive possession over items found in his home . . . even
when that person shares the premises with others’ ” (citations
omitted)); 1 Sarah N. Welling, et al., Federal Criminal Law
and Related Actions § 9.5, at 273-74 (1998) (noting that the
D.C., Second, Fourth, Fifth, Eighth and Eleventh Circuits all
have held that ownership or exercise of dominion or control
of a home containing drugs is evidence of constructive posses-
sion).
Nos. 02-1169 & 02-1179 9
151. These items, all closely connected with a crack opera-
tion, certainly suggest strongly that the cocaine related
activity observed by the officers upon their entrance into
the home several days later was not a one-time event that
had somehow escaped the attention of Ms. Harris.
The jury also was entitled to give some weight to the
fact that Ms. Harris was in a long-term relationship with
the principal dealer. We note, however, that it is not solely
Ms. Harris’ relationship with Riley that supports a conclu-
sion of constructive possession. See United States v. Starks,
309 F.3d 1017, 1021 (7th Cir. 2002) (noting that in “employ-
ing the constructive possession doctrine . . . courts must
be mindful not to sweep within the doctrine’s purview
the innocent bystander who is merely present while others
engage in illegal drug activity”); United States v. DiNovo,
523 F.2d 197, 201 (7th Cir. 1975) (noting that construc-
tive possession could not be justified solely by the fact
that the woman in that case lived in a trailer with her
husband who dealt drugs and stored them there). There
is far more evidence against Ms. Harris than the fact that
she and Riley had a relationship and a child together. Ms.
Harris owned the home alone. Moreover, the drugs were
literally at her feet when the police broke into the house.
In short, Ms. Harris’ ownership of the home and the cir-
cumstances present upon the arrival of the officers are
of sufficient probity to permit the jury to conclude that Ms.
Harris was a willing accomplice to the activity of Riley.
Ms. Harris nevertheless contends that there “was no
affirmative evidence that [she] knew or should have known
that Riley had been manufacturing crack.” Appellant’s Br.
at 20. Indeed, she suggests that the Government’s evi-
dence establishes that the drug manufacturing occurred
without her knowledge while she was asleep. See id. at 21-
22. As we have just noted, we cannot accept the view that
10 Nos. 02-1169 & 02-1179
there was no affirmative evidence of her complicity. The
jury was entitled to rely on circumstantial evidence and
to draw reasonable conclusions from that evidence. The
jury also was permitted to conclude that inconsistencies
in her own testimony and that of Riley rendered suspect
their version of the situation. For instance, when the offi-
cers questioned Ms. Harris at the scene as to what she
was doing, she responded that she had just prepared a
meal for her children and was getting ready to go to bed.
3
See Tr. 9/21/00 at 71-72. If Ms. Harris was awake and had
been in the kitchen cooking, the jury was entitled to be
more than a little skeptical of her assertion that she was
unaware of Riley’s cooking the cocaine. Similarly, the jury
was permitted to assess her factually incorrect statements
at the time of her arrest that she had known Riley for only
a year, that Riley had removed the money from his boxer
shorts and that his name was Quantrell Ward. See id. at 70-
72, 76-77. Moreover, the jury was entitled to disbelieve
Riley’s testimony that his girlfriend and mother of his
child was not involved in or aware of the drug manufac-
turing. See United States v. Stott, 245 F.3d 890, 898 (7th Cir.
2001) (“Questions of witness credibility are reserved for
the jury, and its assessments will not be second guessed
by an appellate panel.” (internal quotation marks and cita-
tion omitted)).
There clearly was sufficient evidence to support the
jury’s verdict.
3
Ms. Harris maintains that she told the officers that she had
been asleep, not about to go to sleep. See Tr. Sentencing Hr’g
1/16/02 at 2. Nevertheless, the evidence at trial, which the
jury could rely upon was the officer’s statement that she indi-
cated she was not yet asleep.
Nos. 02-1169 & 02-1179 11
B.
Ms. Harris’ second contention on appeal is that the dis-
trict court committed plain error by not granting a mistrial.
We usually review the denial of a motion for a mistrial for
an abuse of discretion. See United States v. Smith, 308 F.3d
726, 739 (7th Cir. 2002). However, although Ms. Harris
objected to the evidence at trial and moved to strike it,
she made no motion for a mistrial. Under these circum-
stances, the appropriate review is for plain error. See United
States v. Carraway, 108 F.3d 745, 761 (7th Cir. 1997).
Ms. Harris objects to the following colloquy during
redirect of Detective Wise:
Q. Now, you said you made the decision to arrest Miss
Harris. Is that based on the physical evidence
that was found in her home?
A. Yes.
Q. And anything else?
A. The history I had, the information I was receiving
in the past that Barbara Harris was delivering co-
caine for Terry Riley, due to the fact that he had
warrants—
Mr. Hammond: Objection, Your Honor, far beyond
the scope of this case, and move to
strike.
The Court: Sustained. And I’ll instruct the jury to
disregard that testimony.
See Tr. 9/21/00 at 146.
Such testimony was improper and should not have been
solicited from the witness. However, the court did sus-
tain the objection and gave an appropriate limiting in-
struction. The court instructed the jury that “testimony and
12 Nos. 02-1169 & 02-1179
exhibits that I struck from the record or that I told you to
disregard are not evidence and must not be considered.”
Tr. 9/22/00 at 27. We presume that the jury will follow
an instruction to disregard inadmissible evidence. See
United States v. Lomeli, 76 F.3d 146, 149 (7th Cir. 1996)
(holding that the jury is capable of sorting through evi-
dence and of following court’s instructions to disregard
Government witness’ statement that Defendant was “in-
volved with the drug offense”); Wilson v. Groaning, 25 F.3d
581, 587 (7th Cir. 1994) (concluding that “highly inflamma-
tory and totally irrelevant” testimony was adequately cured
by court’s prompt striking of testimony and later instruc-
tions to disregard). Consequently, we consider the district
court’s corrective action to have overcome the prejudicial
effect of the witness’ statement. It was not plain error for
4
the court to fail to grant a mistrial sua sponte.
C.
Ms. Harris also submits that the district court should
not have considered her shoplifting convictions in cal-
culating her criminal history. In her view, these misde-
meanor offenses are similar to the offense of issuing a
check for which there are insufficient funds, an offense
specifically excluded by the Guidelines. See U.S.S.G.
§ 4A1.2(c)(1).
4
The experienced and very able trial judge gave no indica-
tion that this lapse was deliberate on the part of the prosecutor,
the witness or both. We are certain that, had such a situation
presented itself, the judge would have taken appropriate dis-
ciplinary action. The trial judge certainly was in a far better
position than we are to assess such a situation, and we shall
not second guess his handling of the matter solely on the basis
of a cold record.
Nos. 02-1169 & 02-1179 13
U.S.S.G. § 4A1.1 specifies the basic manner of calculating
a defendant’s criminal history. Subsection 4A1.1(c) pro-
vides that 1 point, up to a total of 4 points, be added for
each prior sentence that included a punishment of less
than sixty days’ imprisonment. However, § 4A1.2 limits
the applicability of § 4A1.1 through its definition of “prior
sentence.” Notably, subsection 4A1.2(c)(1) excludes cer-
tain enumerated prior offenses and “offenses similar to
them, by whatever name they are known.” Among the
excluded offenses is “Insufficient funds check.” However,
Application Note 13 to § 4A1.2, further explains that
“ ‘Insufficient funds check,’ as used in § 4A1.2(c)(1), does
not include any conviction establishing that the defen-
dant used a false name or non-existent account.”
The district court, relying on the pre-sentence report,
determined Ms. Harris’ criminal history by counting seven
previous convictions. Five of these were for the misde-
meanor of criminal conversion; the other two were for the
misdemeanor of Assisting a Criminal and the felony of
Neglect of a Dependant. See pre-sentence report at 9-13.
The Sentencing Table set out at U.S.S.G. § 5A indicates
that 4 criminal history points place the defendant in cate-
gory III. For a defendant like Ms. Harris with an offense
level of 32, the resulting sentencing range is 151-188 months.
Had all her shoplifting convictions been excluded, the
two remaining convictions would have resulted in a crim-
inal history category of II and a sentencing range of 135-168
months.
Ms. Harris contends that, in order to determine whether
the shoplifting convictions ought to be counted, we ought
to apply the five-point comparison set forth in United
States v. Booker, 71 F.3d 685, 689 (7th Cir. 1995), and con-
sider the similarities between shoplifting and Indiana’s
conversion and check deception statutes. See Ind. Code 35-
14 Nos. 02-1169 & 02-1179
43-4-3 (conversion); Ind. Code 35-43-5-5 (check decep-
tion). In Booker, we stated that, first of all, it was important
to keep in mind that the purpose of the inquiry was to
determine whether the defendant’s prior offense was
“categorically more serious” than the listed offense. Booker,
71 F.3d at 689 (quoting United States v. Caputo, 978 F.2d 972,
977 (7th Cir. 1992)). While noting that our circuit has not
adopted a formal “test” for making this comparison, we
acknowledged that the multifactored approach employed
by several of our sister circuits was a “helpful device” in
making the required comparison. Under that approach, the
court compares: 1) punishments imposed, 2) perceived
seriousness of the offense, 3) elements of the offense, 4) level
of culpability and 5) indication of recurring criminal
conduct. See Booker, 71 F.3d at 689. We also emphasized
in Booker that, in the end, a common sense approach to
this process of comparison ought to be of paramount
concern. Id. Indeed, our subsequent cases consistently have
repeated that theme. See United States v. Boyd, 146 F.3d 499,
501 (7th Cir. 1998); United States v. Roy, 126 F.3d 953, 954
(7th Cir. 1997) (conducting “common sense comparison”);
United States v. Binford, 108 F.3d 723, 726 (7th Cir. 1997)
(noting that Booker does not mandate a formal analysis of
“similarity”).
We agree with our colleague in the district court that,
although both shoplifting and passing a bad check are
essentially theft offenses, there is a substantial difference
in the manner in which the crime is perpetrated. Like the
district court, we find persuasive Judge Graber’s dissent
in United States v. Lopez-Pastrana, 244 F.3d 1025, 1031-37 (9th
Cir. 2001) (Graber, J., dissenting). See R.206 at 20. In her
dissent, Judge Graber maintained that one significant
difference between passing insufficient funds checks and
larceny is that only the latter requires the “trespassory
taking of another.” Lopez-Pastrana, 244 F.3d at 1035 (Graber,
Nos. 02-1169 & 02-1179 15
J., dissenting). We also find persuasive Judge Graber’s
argument concerning the intent of the Sentencing Commis-
sion. She pointed out that “[p]etit larceny (or shoplifting,
or petty theft) assuredly is one of the most common, and
best known, of misdemeanors,” yet it is not on the
4A1.2(c)(1) list. Id. at 1037 (Graber, J., dissenting). Judge
Graber asked, “Is it really likely that the Commission
intended to list petit larceny—perhaps the prototypical
misdemeanor—but simply neglected to do so, or thought
that it was unnecessary because petit larceny is so clearly
‘similar to’ insufficient funds check?” Id. (Graber, J., dis-
senting) (emphasis in original). As one member of this
panel noted during oral argument, petit larceny is the
“elephant in the room.” There simply is no basis in logic
or experience to assume that the Sentencing Commission
meant to exempt it by implication.
We also point out that Application Note 13 of the Sen-
tencing Guidelines § 4A1.2 explicitly limits the exclusion
for bad checks to situations that involve an existing bank
account with the defendant’s real name on the check. The
Commission therefore expressed a concern with the ease
of locating the perpetrator. Shoplifting is difficult to detect;
once the individual has left the store, apprehension be-
comes problematic. The Commission’s concern with ease
of detection certainly militates against an implication that
shoplifting is exempt.
In taking this position, we join the majority of the cir-
cuits that have decided this issue. The judges of the Tenth
and Eighth Circuits have held that convictions for petty
theft or shoplifting are not similar to any offense listed
in § 4A1.2(c)(1); only the panel majority in the Ninth
Circuit has held to the contrary and, as we have noted
previously, that opinion was met with a dissent that both
the district court and this court find convincing. Compare
16 Nos. 02-1169 & 02-1179
United States v. Hooks, 65 F.3d 850, 854-56 (10th Cir. 1995)
(finding petty theft not similar to the listed exclusion “local
ordinance provisions”); United States v. Waller, 218 F.3d 856,
857-58 (8th Cir. 2000) (finding petty theft is not on the
exclusion list), with Lopez-Pastrana, 244 F.3d at 1027-31(concluding shoplifting and insufficient funds check are
similar).
The trial court’s common sense approach to the Sentenc-
ing Commission’s intent was correct; we agree that the
shoplifting convictions were properly included in the cal-
culation.
D.
Finally, Ms. Harris contends that her conviction for
possession of firearms by a convicted felon is invalid
because the firearms did not affect interstate commerce.
However, Ms. Harris has waived this issue. She did not
raise the issue in the district court. Indeed, she stipulated
at trial that the firearms had crossed state lines and that
the movement affected interstate commerce. See Tr. 9/21/00
at 151-52. Now Ms. Harris argues that there was no waiver
because the effect on interstate commerce is jurisdictional.
However, we have held that the failure to prove facts
establishing the interstate commerce element of a federal
offense is not jurisdictional. See United States v. Rogers, 270
F.3d 1076, 1078 (7th Cir. 2001); United States v. Martin, 147
F.3d 529, 531-32 (7th Cir. 1998).
Even if we were to reach the merits, Ms. Harris’ submis-
sion would fail. In Scarborough v. United States, 431 U.S. 563,
577 (1977), the Supreme Court concluded that, even if
the interstate movement was not contemporaneous with
the defendant’s possession, proof that the firearm had, at
some earlier point in time, moved across state lines would
Nos. 02-1169 & 02-1179 17
suffice to show that the defendant possessed the gun in or
affecting commerce. Ms. Harris nevertheless contends
that United States v. Lopez, 514 U.S. 549 (1995), implicitly
overturned Scarborough. We consistently have rejected that
argument. See United States v. Fleschli, 305 F.3d 643, 652-53
(7th Cir. 2002); United States v. Lemons, 302 F.3d 769, 772-73
(7th Cir. 2002).
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-8-03