United States v. White, Andrew S. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW S. WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 CR 165—John Daniel Tinder, Judge.
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ARGUED JANUARY 12, 2004—DECIDED MAY 11, 2004
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Before POSNER, EASTERBROOK, and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Based upon an allegation of
evidentiary error, Defendant Andrew S. White appeals his
judgment of conviction for possession of firearms as a con-
victed felon, 18 U.S.C. § 922(g)(1) (2003), entered pursuant
to a jury’s verdict. He also appeals his sentence, claiming
that the district court erred when it increased his offense
level under U.S.S.G. § 3C1.1 (2003) for attempting to su-
born perjury. We affirm both White’s conviction and
sentence.
2 No. 03-2549
I. History
In October of 1992, White was on probation and under
supervision by the Marion County, Indiana Probation
Department. White had informed his probation officer
that he was residing alone in Indianapolis. He was the sole
lessee and the named electrical-service subscriber for the
residence. A condition of White’s probation allowed unan-
nounced searches of his living quarters by law enforcement
and/or probation officers. Such a search was conducted on
October 18, 2002 by Indianapolis police officer Michael
Elder, two other uniformed officers, and a probation officer.
The residence had two bedrooms, one in the northeast
corner of the house, and one in the northwest corner of the
house. Upon entry, Elder observed a female on the bed in
the east bedroom and another male exiting the bathroom.
The identities of these two persons were never ascertained
by officer Elder. After being advised of his Miranda rights,
White told Elder that the east bedroom was his. Elder then
searched the east bedroom.
During the search of the bedroom, Elder found male
clothing, various financial papers, and two firearms. Spe-
cifically, Elder discovered a Tarus .45-caliber handgun and
a Cobray-11 nine-millimeter weapon in the dresser. In
addition, numerous Indianapolis Star customer invoice
forms were found, which contained customer subscription
information and credit card numbers. White stated that his
fingerprints could be found on the weapons, but that they
were not his. He also indicated that he believed he could
have weapons in his house.
Based upon the foregoing facts, a grand jury indicted
White for the unlawful possession of firearms by a convicted
felon. Both parties stipulated that White was a convicted
felon and that the weapons in question had traveled in
interstate commerce. Hence, the only issue for trial was
No. 03-2549 3
whether White, and not another occupant or visitor in
White’s residence, possessed the weapons.
To prove this, the prosecution planned to introduce the
Indianapolis Star documents at trial, in addition to other
evidence, to suggest the inference that if the documents
were White’s, because they were found in the bedroom
dresser, then the other items in the dresser were also
White’s, including the two weapons. The prosecution prof-
fered the following facts to show that the Star documents
were White’s: (1) White worked at the Indianapolis Star
newspaper from March to July of 2002, in the building ser-
vices department; (2) he worked the late shift, from 10:00
p.m. to 6:30 a.m., when few employees were present; (3)
White had access to all areas of the Star’s facilities, includ-
ing the circulation department where customer subscription
invoices were processed and stored; and (4) none of the
other guests in his home had an opportunity to obtain
customer invoices from the Star. However, these facts also
indicated that White may have committed identity theft.
Hence, the government gave notice to White prior to trial of
its intent to offer the evidence under Rule 404(b), which
limits when such prior “bad acts” evidence may be admit-
ted. The defense objected, arguing that the evidence would
unfairly prejudice the jury against the defendant.
The experienced district court judge repeatedly reserved
ruling on the admissibility of the documents, waiting to
assess whether the government’s evidence at trial lived up
to its promise—both sufficiently linking White to the Star
documents and obviating any links between the documents
and other visitors to White’s residence. The district court
ultimately determined that the prosecution had shown by
a preponderance of the evidence that the documents were
White’s. The 404(b) evidence was therefore admitted, with
limiting and cautionary instructions from the district court
stating in part, “You may consider this evidence only on the
question of the identity of the person or persons
4 No. 03-2549
who possessed the firearms found in that dresser. . . . The
defendant is not on trial for any crime or any criminal
offenses or conduct not charged in the indictment and he is
accused of no misconduct in connection with the [Star
documents]. . . . So you may consider [this evidence] only for
the limited purposes on the question of identity.”
White presented a simple theory of defense: he did not
know the guns were in the residence and, even if he did, he
did not have the ability to exercise dominion and control
over them. See United States v. Thomas, 321 F.3d 627, 636
(7th Cir. 2003) (discussing constructive possession). At trial,
four witnesses testified on White’s behalf: Chandra Baker
(White’s ex-girlfriend), Nita Reeves, DeWayne Lane, and
Angela Cheshier. Baker, Reeves, and Lane each testified
that White used the west bedroom and each gave substan-
tially similar accounts of their collective comings and goings
from White’s residence both generally and specifically on
October 18. In short, each testified that a man known to
them only as “Ted” brought a gun into White’s house and
hid it in the dresser on October 18. But, after being con-
fronted during cross-examination with tape recordings of
conversations between themselves and White, all three
witnesses—Baker, Reeves, and Lane—admitted that White
had discussed their testimony with them prior to trial, in
order to ensure that “everyone [was] on point” and that no
one talked until they knew the “script.”
The jury rejected White’s theory of defense and returned
a guilty verdict on March 14, 2003. At sentencing, the gov-
ernment sought a two-level enhancement under U.S.S.G. §
3C1.1 because, they asserted, White attempted to suborn
perjury. Based upon the trial testimony of Baker, Reeves,
and Lane, and the sentencing hearing testimony of Special
Agent Steven Alexander of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“BATF”), who had listened to
recordings of phone calls made by White from the Marion
County Jail to his witnesses prior to trial, the district court
No. 03-2549 5
concluded that the enhancement applied and added two
levels to White’s criminal offense level. On June 3, 2003,
White was sentenced to 115 months imprisonment.
II. Analysis
A. Federal Rule of Evidence 404(b)
White first argues that the district court abused its dis-
cretion when it admitted the Indianapolis Star documents,
which suggested that White may have committed identity
theft. Under Rule 404(b), evidence of a defendant’s prior
“bad acts” may be admissible if it is relevant to an under-
standing of the defendant’s “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mis-
take or accident.” Fed. R. Evid. 404(b). The rule’s use of the
phrase “may be” indicates that the admissibility of “bad
acts” evidence is a matter soundly committed to the trial
court’s discretion. Indeed, it is a rare circumstance, one
where the record contains no evidence on which the district
court could have rationally based its ruling, when this court
will find that the district court abused its discretion. See
United States v. Conley, 291 F.3d 464, 472 (7th Cir. 2002).
Hence, “[a]ppellants who challenge evidentiary rulings of
the district court are like rich men who wish to enter the
Kingdom: their prospects compare with those of camels who
wish to pass through the eye of the needle.” Untied States
v. Glecier, 923 F.2d 496, 503 (7th Cir. 1991). White is not so
fortunate.
We have established a four-prong test to determine the
admissibility of “bad acts” evidence under Rule 404(b), such
as the Indianapolis Star documents at issue in this case.
E.g., United States v. Joseph, 310 F.3d 975, 978 (7th Cir.
2002). First, the evidence must be probative of an issue of
the case, other than the defendant’s propensity to commit
crimes, such as knowledge, intent, motive, or absence of
mistake. Second, the prior bad act must be similar enough
6 No. 03-2549
and close enough in time to the charged offense to be
relevant. Third, the jury must be able to find by a pre-
ponderance that the defendant committed the prior act.
Finally, the danger of unfair prejudice to the defendant
cannot substantially outweigh the probative value of the
evidence. See id.Here, the district court’s decision to admit the
Indianapolis Star documents, evidence tending to show
a prior “bad act” (identity theft) by White, with limiting
instructions was amply supported by the record. First, the
documents were offered by the prosecution to counter
White’s theory of defense, that the firearms were not his
and that he did not have the ability to exercise dominion
and control over them, and not merely to show White’s pro-
pensity to commit crimes. If the documents were possessed
by White—an evidentiary showing the district court re-
quired the prosecution to demonstrate by a preponderance
before the court admitted the documents—then the jury
could infer that White kept his belongings in the dresser,
and therefore, the weapons which were also found in the
dresser were also possessed by White. And under Rule
404(b), a court may properly admit “bad acts” evidence to
prove the identity of a defendant (i.e., the identity of the
person who owned or “possessed” the weapons at issue
here). At the very least, it was no abuse of discretion for the
district court to determine that the Indianapolis Star
documents were relevant to the issue of the defendant’s
identity with respect to possession of the weapons, and
White concedes as much in his brief to this court.
Second, the documents were kept in temporal and spatial
proximity to the weapons at issue in this case. Hence, the
second requirement requiring sufficient similarity between
the Rule 404(b) evidence and the charged conduct is met.
And not surprisingly, White concedes this issue as well.
Third, a reasonable jury must be able to conclude, by
a preponderance of the evidence, that the prior “bad act”
No. 03-2549 7
occurred. United States v. York, 933 F.2d 1343, 1352
(7th Cir. 1995). In this case, the district court went to great
lengths to ensure that the prosecution had demonstrated
that more likely than not it was White—and not some other
houseguest or other visitor—who had obtained the Star
documents. So again, White concedes this issue.
Last, the probative value of the evidence must not be
substantially outweighed by its prejudicial effect. The dis-
trict court carefully analyzed this question and gave lim-
iting instructions to the jury both when the evidence was
admitted and when the jury was finally instructed. The
evidence was highly probative of White’s identity, and the
“bad act” was not of the type which typically arouses strong
passions in jurors. See, e.g., Joseph, 310 F.3d at 978-79(affirming district court’s allowance of evidence of mail theft
to establish identity when defendant charged with federal
bank fraud); United States v. Anifowoshe, 307 F.3d 643,
647-48 (7th Cir. 2002) (finding district court correctly
admitted evidence of state theft charge and other bad acts
because while not unfairly prejudicial, the evidence was
probative of identity in federal fraud prosecution). See
generally, United States v. Adames, 56 F.3d 737, 742 (7th
Cir. 1995) (evidence is prejudicial if it will induce jury to
decide the case on improper basis, commonly an emotional
one). If there was any prejudice to White, it certainly did
not substantially outweigh the probative value of the
evidence.
Therefore, we conclude that the learned district judge did
not abuse his discretion in admitting the Indianapolis Star
documents under Rule 404(b).
B. Sentencing Enhancement for Suborning Perjury
Second, White challenges the two-level upward adjust-
ment of his sentencing level for obstruction of justice under
U.S.S.G. § 3C1.1 (2003). We review for clear error a district
8 No. 03-2549
court’s finding that a defendant obstructed justice. United
States v. White, 240 F.3d 656, 660 (7th Cir. 2001). And
under this standard, a district court’s factual findings will
not be disturbed so long as they are plausible in light of the
record in its entirety. Id. at 660-61. The subornation of
perjury, where the perjury could affect, to some reasonable
probability, the outcome of the judicial process, is a form of
obstruction of justice. U.S.S.G. § 3C1.1, cmt. n.4(b). A
defendant attempts to suborn perjury when he encourages
a witness to testify falsely in an effort to improve his
chances of acquittal, United States v. Duncan, 230 F.3d 980,
988 (7th Cir. 2000), and the attempt need not have suc-
ceeded in affecting the outcome, see United States v.
Buckley, 192 F.3d 708, 710 (7th Cir. 1999).
White makes three assertions to support his argument
that the district court clearly erred when it determined he
suborned perjury: (1) the testimony of defense witnesses did
not materially differ from the testimony of government
witnesses; (2) if there had been an actual attempt to coach
his witnesses, the testimony given would have been more
helpful to him; and (3) the recorded conversations between
White and his witnesses, during which he referred to a
“script” and stated that the witnesses should wait until they
were all “on point” before talking to his attorney, amounted
only to “playful banter.” Each of these arguments is totally
unsupported by the record and the latter two border on the
absurd.
We summarize briefly the testimony of only one of White’s
witnesses at trial, which, even standing alone, is enough to
support the district court’s determination that White
suborned perjury. In direct conflict with the evidence the
prosecution presented, Chandra Baker testified during her
direct examination that White used the west—not
east—bedroom and that on October 18 she observed “Ted”
bringing a weapon into the residence. But after being
confronted with a tape recording of conversations between
No. 03-2549 9
herself and White on cross-examination, she admitted that
White had told her to get together with Erica Johnson and
Dewayne Lane to be sure that they knew what to say at the
trial, and to include in her testimony certain details. White
told her that the ultimate goal was to get everyone together
for a “pow-wow” and to “break this down,” so that everyone
would be “on point.” She testified that White told her to
“quiz” Johnson and to accomplish these tasks before
meeting with his attorney.
Similar testimony was elicited during the direct and
cross-examinations of both Nita Reeves and Dewayne Lane.
And again each witness admitted to conversations with
White only after being confronted with tape recordings. In
addition, at the sentencing hearing, BATF Agent Alexander
authenticated the tape recordings and conversations.
We therefore find that the district judge, who viewed the
witnesses and listened to the tapes first-hand, did not in
any fashion err when he found that White attempted to
suborn perjury, and consequently increased White’s offense
level by two for obstruction of justice under U.S.S.G.
§ 3C1.1.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment of conviction and sentence.
10 No. 03-2549
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-04