United States v. Biggs, Calvin ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4613
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CALVIN BIGGS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 316—Suzanne B. Conlon, Judge.
____________
ARGUED MARCH 27, 2007—DECIDED JUNE 14, 2007
____________
Before MANION, KANNE, and WOOD, Circuit Judges.
MANION, Circuit Judge. A jury convicted Calvin Biggs
of possession with intent to distribute crack cocaine and
possession of a firearm as a convicted felon. The district
court sentenced Biggs to 360 months of imprisonment.
Biggs appeals, claiming that the drugs and guns at issue
should have been suppressed because he was arrested
without probable cause and because his subsequent
consent to search was involuntary. He also challenges
the jury’s viewing of an exhibit during deliberations and
the reasonableness of his sentence. We affirm Biggs’s
convictions and sentence.
2 No. 05-4613
I.
On the night of April 13, 2004, officers from the Chicago
Police Department arrested Calvin Biggs. The parties
present conflicting versions of what happened that night.
We begin with the government’s version, which a magis-
trate judge found to be credible and which the district
court adopted. According to Officer Patrick Thelan,
who testified at an evidentiary hearing, an anonymous
source informed him that a heavyset black man in a cream-
colored sweater was selling drugs at a particular inter-
section. Within twenty minutes of receiving this informa-
tion, Officer Thelan and his partner Sergeant Michael
Stack drove by the intersection in an unmarked police
vehicle and observed a man on the corner fitting the
description provided by the tipster. The officers drove
around the block to a vacant lot from where they could
observe the man without being seen. From a distance of
approximately fifty to seventy-five feet, both officers
watched with binoculars. Over the course of about fifteen
minutes, the man received currency from three different
individuals and handed each something from the rear
of his pants. The officers left their vantage point after
the third suspected drug transaction, returned to their
vehicle, drove back around the block, and parked the
vehicle to approach Biggs. Biggs fled when he saw the
officers approach. The officers pursued him into a nearby
basement apartment. As Biggs entered the apartment, the
officers saw him remove a plastic bag from his pants and
throw it to the floor. Sergeant Stack recovered the bag,
which subsequent testing revealed contained 2.3 grams
of crack cocaine, and placed Biggs under arrest.
The officers escorted Biggs to their vehicle and alerted
him to his rights under Miranda v. Arizona, 384 U.S. 436No. 05-4613 3
(1966). Biggs then told the officers that he could not go back
to jail because he had to take care of his daughter. Biggs
offered to get the officers some guns in exchange for his
release. The officers responded to Biggs’s offer with
questions about the guns, asking their type and location
and whether any dogs were at the location. The officers
never told Biggs that they would release him in exchange
for the guns; instead, they continued to ask questions. They
drove Biggs to a parking lot of an abandoned candy
factory, where at least two other officers were present.
Approximately twenty-five minutes after the officers took
Biggs into custody, he signed a consent to search form
for the first floor of 4844 W. Huron, the place where Biggs
said the guns were stored. Another officer arrived to
transport Biggs to jail for booking. Biggs informed that
officer of his belief that he should be released because he
gave up some guns, but that officer simply confirmed
that the guns were Biggs’s own weapons. Officer Thelan
and the other officers then drove about two miles to the
residence, where they recovered two guns and a bag
containing what testing later determined to be 110.3 grams
of crack cocaine.
Biggs’s account of the evening’s events differs sub-
stantially. He testified, along with three other witnesses,
to the following version. Two women from the neighbor-
hood were walking around the block and talking that
night. They saw Biggs enter a basement apartment. Biggs
had gone to the apartment to visit a sick friend, Arthur
Weems, who subsequently died. Another man, Emrick
Burks, was also present inside the apartment. The women
were still on the block a little while later when an officer
approached them and ordered them to empty their pock-
ets and shake out their bras. While this encounter trans-
4 No. 05-4613
pired, Biggs exited the basement apartment. The officer
then shifted his focus away from the women and went to
the basement apartment. The officer met Biggs at the
door as he was leaving and pushed him back into the
apartment. The officer’s partner then ran by the women,
asked where his partner went, and was directed to the
basement apartment, which he also entered.
Biggs and Burks then testified that the officers ordered
them and Weems to the ground, handcuffed them, and
searched the apartment. Six other officers entered the
apartment during the search, but four of them left after
learning that the situation was under control. The search
turned up the 2.3 grams of crack cocaine. The officers
then escorted Biggs to their vehicle and told Biggs that
this amount of drugs was negligible, and allegedly prom-
ised to make the drugs disappear if Biggs would pro-
vide them with a gun. The officers drove Biggs to the
abandoned candy factory parking lot where Biggs negoti-
ated with the four officers for approximately fifteen
minutes. The officers allegedly threatened to get a search
warrant for the residence and arrest everyone in the
house, including his mother and girlfriend, if Biggs did
not consent to the search. Biggs then signed the consent
to search form without reading it. Much to his surprise,
he was not released, but was instead taken to jail.
A grand jury indicted Biggs for possession with intent to
distribute crack cocaine and possession of two firearms
as a convicted felon. See 21 U.S.C. § 841(a)(1); 18 U.S.C.
§ 922(g)(1). Biggs moved to suppress the evidence of the
guns and drugs and to quash his arrest. He based his
claim on a lack of probable cause and on an involuntary
consent to search. After an evidentiary hearing, a magis-
trate judge found that Biggs’s version of events lacked
No. 05-4613 5
credibility and denied the motions in a written recom-
mendation that the district court accepted and adopted.
Biggs proceeded to trial. During deliberations, the jury
requested to view the 2.3 grams of cocaine that had been
found at the apartment. Biggs objected to the viewing. The
court overruled the objection and returned the jury to the
jury box. There she permitted the jurors to examine the
drugs by having the exhibit passed among the jurors. The
jury subsequently convicted Biggs on both counts and the
district court sentenced him to 360 months of imprison-
ment. Biggs appeals both his convictions and sentence.
II.
On appeal, Biggs first argues that the officers lacked
probable cause or reasonable suspicion for the initial
confrontation and arrest at the apartment. Based on that,
he claims the district court should have suppressed the
evidence gleaned from this encounter. In considering
whether evidence should be suppressed, we review the
district court’s legal conclusions de novo and factual
findings for clear error. United States v. Breland, 356 F.3d
787, 791 (7th Cir. 2004) (citation omitted). To determine if
the circumstances warrant suppression, we must ex-
amine the validity of the arrest. To arrest Biggs without
a warrant, the officers “ ‘must have probable cause, under
the totality of the circumstances, to reasonably believe
that a particular individual has committed a crime.’ ”
United States v. Oliva, 385 F.3d 1111, 1114 (7th Cir. 2004)
(quoting United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir.
1995)). “In order to have probable cause for an arrest,
law enforcement agents must reasonably believe, in light
of the facts and circumstances within their knowledge at
the time of the arrest, that the suspect had committed
6 No. 05-4613
or was committing an offense.” Payne v. Pauley, 337 F.3d
767, 776 (7th Cir. 2003) (citation omitted).
The magistrate judge, in findings that were accepted
and adopted by the district court over Biggs’s objections,
found Officer Thelan’s testimony credible. According to
Officer Thelan’s version of events, the officers received
an anonymous tip describing a man who was selling
drugs at a particular intersection. The officers corroborated
this tip when they saw a man matching the informant’s
description engage in three suspected drug transactions.
When the officers approached him he fled to a nearby
apartment dwelling. They caught him and arrested him.
Under this scenario, the officers had probable cause for
the arrest. See United States v. Schaafsma, 318 F.3d 718, 722
(7th Cir. 2003) (finding that a statement implicating the
defendant, his presence at a crime scene, and his flight is
sufficient for probable cause).
Biggs responds that crediting Thelan’s testimony was
clear error. We generally defer to the district court’s
determination of credibility because, unlike our review
of transcripts, the district court “had the opportunity to
listen to testimony and observe the demeanor of witnesses
at the suppression hearing.” United States v. Parker, 469 F.3d
1074, 1077 (7th Cir. 2006) (citation omitted). Since the
district court adopted the credibility determinations of the
magistrate judge, we review the magistrate judge’s find-
ings for clear error. United States v. Gillaum, 372 F.3d 848,
854 (7th Cir. 2004) (“This deference is equally applicable
where credibility determinations have been made by a
magistrate judge and the report and recommendation of
the magistrate judge have been adopted by the district
court.”). Although we review for clear error, determina-
tions of witness credibility “ ‘can virtually never be clear
No. 05-4613 7
error.’ ” United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir.
2005) (quoting United States v. Blalock, 321 F.3d 686, 690
(7th Cir. 2003) (internal quotation marks and citation
omitted)).1
Biggs argues that because Officer Thelan’s testimony is
improbable, the district court clearly erred by adopting
the magistrate judge’s credibility determination. Specifi-
cally, Biggs claims that Officer Thelan’s testimony should
be discredited because there were no video or audio
recordings of the events, because no federal officers
were involved in the arrest, and because the purported
drug buyers and confidential informant remained uniden-
tified and unavailable to testify. Biggs also points to
discrepancies in Officer Thelan’s testimony, including
whether he identified Biggs as matching the informant’s
description when he drove by the intersection or during
surveillance, and whether Biggs threw the drugs to the
“ground” or the “floor.2” He also questioned why Officer
Thelan could recall that the lights were on in the apart-
ment, but not whether anyone else was present in the
apartment. Finally, Biggs notes that although Officer
1
The “virtually never” language originates in a Supreme Court
decision which stated, “a trial judge’s finding is based on his
decision to credit the testimony of one of two or more wit-
nesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence[;] that
finding, if not internally inconsistent, can virtually never be
clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575-76
(1985) (citations omitted).
2
Biggs himself conflated these terms, testifying at the eviden-
tiary hearing that “[t]hey handcuffed all of us and told us to
get on the ground—I mean on—on the floor.”
8 No. 05-4613
Thelan stated that Biggs was wearing a cream-colored
sweater, his booking photograph depicts him in a green
and white jersey. Biggs’s counsel explored each of
these issues during the evidentiary hearing before the
magistrate judge. The magistrate judge thoroughly eval-
uated the testimony, concluding that “[o]n balance” Officer
Thelan’s testimony was more credible than the version of
events presented by Biggs, the two women, and the other
man in the apartment. Elaborating on their demeanor,
the magistrate judge explained that Biggs’s witnesses
exhibited a “tone of voice and body language suggest[ing]
that they were either making things up, trying to remember
the right thing to say, or trying to avoid saying the wrong
thing.” The magistrate judge also noted that Biggs’s
witnesses were “inconsistent amongst themselves in
significant respects” and found cause for bias in their
testimony. Given the divergent versions presented by
the government and the defense, which version to be-
lieve is purely a credibility determination. We find no
clear error in the crediting of Officer Thelan’s testimony
which, contrary to Biggs’s assertions, is not implausible. See
United States v. Pedroza, 269 F.3d 821, 825-26 (7th Cir. 2001)
(“As there is nothing physically impossible or other-
wise disqualifying about these [credibility] findings and
determinations, we reject those arguments [challenging
the magistrate judge’s credibility determination].”) Once
this testimony is deemed credible, Officer Thelan’s obser-
vations provided a basis for both probable cause and
reasonable suspicion. Schaafsma, 318 F.3d at 722. Accord-
ingly, the arrest was valid and there is no cause for sup-
pression of the evidence seized pursuant to the arrest.
Biggs next argues that the guns and the drugs found
at 4844 W. Huron should have been suppressed as evi-
No. 05-4613 9
dence because he did not voluntarily consent to the
search. Although there was no warrant to search Biggs’s
home, a warrantless search is constitutional under the
Fourth Amendment if Biggs consented voluntarily. United
States v. Grap, 403 F.3d 439, 443 (7th Cir. 2005). To evalu-
ate voluntariness, we look to the totality of the circum-
stances. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).
In particular, “[w]e consider the following criteria: (1) the
age, education and intelligence of the defendant;
(2) whether [defendant] was advised of his constitutional
rights; (3) the length of detention prior to consent;
(4) whether [defendant] consented immediately or police
made repeated requests for consent; (5) whether physical
coercion was used; (6) whether [defendant] was in cus-
tody.” United States v. Strache, 202 F.3d 980, 985 (7th Cir.
2000) (citation omitted). The district court adopted the
magistrate judge’s conclusion that Biggs’s consent was
voluntary. We review “only for clear error” this factual
question of whether Biggs “freely and voluntarily con-
sented.” Pedroza, 269 F.3d at 829 (citing United States v.
Raibley, 243 F.3d 1069, 1076 (7th Cir. 2001)).
The magistrate judge’s opinion considered each of the
above factors. The judge found that “the testimony pre-
sented at the hearing shows that Mr. Biggs is an articulate
adult with a tenth or eleventh grade education, a sub-
stantial employment history, and an intimate familiarity
with the criminal justice system.” The officers advised
Biggs of his constitutional rights with Miranda warnings.
Although Biggs was in custody, and about four officers
were present, Biggs signed a form consenting to the search
within, as the magistrate judge found, “at most” twenty-
five minutes of being arrested, handcuffed, and seated
in a police vehicle. Furthermore, there is no evidence of
10 No. 05-4613
physical coercion. Biggs testified that the officers yelled at
him and threatened to arrest others at his residence, but
the magistrate judge did not credit this testimony in his
opinion. Although choosing an abandoned candy factory
parking lot as a location for signing a consent form may
be a bit odd, the location was within two miles of his
residence and roughly at some point between the basement
apartment where he was arrested and the residence
where the guns and drugs were found. Under these
circumstances, we conclude that the district court did not
commit clear error in adopting the magistrate judge’s
finding that Biggs voluntarily consented. Cf. Strache, 202
F.3d at 982 & 985-86 (finding voluntary consent when a
defendant was awakened, handcuffed, held in custody
for twenty minutes with five officers present, and not
given Miranda warnings).
Biggs further claims that he did not voluntarily con-
sent because he consented only after the officers allegedly
promised to release him if he provided them with guns. As
the magistrate judge found, however, Biggs himself first
proposed the guns-for-freedom deal to the officers after
receiving Miranda warnings. The officers never affirma-
tively accepted the offer, and only responded with ques-
tions relating to the guns and their location. Under the
version of events credited by the magistrate judge and
district court, in which we again find no clear error,
this was not improper. The officers’ questions may have
misled Biggs into thinking that the officers were at least
interested in accepting his offer, but neither their ques-
tions nor Biggs’s misunderstanding rendered his con-
sent involuntary. See United States v. Rutledge, 900 F.2d
1127, 1130 (7th Cir. 1990) (noting that officers “are allowed
to play on a suspect’s ignorance, his anxieties, his fears,
No. 05-4613 11
and his uncertainties; they are just not allowed to magnify
those . . . to the point where rational decision becomes
impossible.”). The officers in this case did not lie and
never affirmatively stated that Biggs would be released
upon the recovery of the weapons. They did not caution
him about his possible misunderstanding, but the officers
are not “fiduciar[ies] of the suspect.” Id. Furthermore,
the form that Biggs signed also stated on the line immedi-
ately above his signature that he had not “received any
threats, promises, or duress of any kind.” Therefore, in the
totality of the circumstances, Biggs’s mistaken belief that
he would be released if he turned over guns does not
render his consent involuntary; the district court did not
commit clear error in determining that Biggs voluntarily
consented to the search.
Biggs next argues that the jury’s handling of the crack
cocaine exhibit during deliberations prejudiced the ver-
dict. The jury initiated this viewing by sending a note to
the court that read, “[a]re we allowed to look at the 2.3
grams of cocaine (exhibit 13)?” The district court judge
convened the parties to discuss the request. The district
judge noted that the particular exhibit had not been
passed to the jury during trial, apparently due to inadver-
tence.
“We afford the district court considerable discretion in
the handling of exhibits during the course of a trial as
well as during jury deliberations. We review the district
court’s handling of the exhibits for a clear abuse of discre-
tion.” United States v. Arroyo, 406 F.3d 881, 886 (7th Cir.
2005) (internal citations omitted). In this case, we find no
error in the decision to permit the jury, following their
request, to view the cocaine exhibit during deliberations.
The government had referred to the exhibit during clos-
12 No. 05-4613
ing arguments, emphasizing that the packaging of the
drugs recovered at the apartment and the drugs recovered
at the residence was identical, and therefore suggested
that Biggs possessed both stashes of drugs. Since the
admitted exhibit was not passed among the jurors during
trial, and since they requested to see the exhibit during
deliberations, and since the government referred to the
exhibit in its argument, it was reasonable and no abuse of
discretion for the district court to fulfill the jurors’ request.
Biggs suggests that the district court should have in-
structed the jury not to place undue emphasis on the
exhibit, but counsel never requested such an instruction
from the district court. Accordingly, he has forfeited this
request for a cautionary instruction and fails to demon-
strate prejudice from its omission. See Montes v. Jenkins,
626 F.2d 584, 588 (7th Cir. 1980) (noting that a defendant’s
“failure to request [a cautionary instruction] means he
must demonstrate, at the least, that he was prejudiced by
the absence of a cautionary instruction.”).
Biggs further objects to the manner in which the jury
viewed the exhibit and handled it as they passed it around
in the courtroom. Biggs argues that if the exhibit had
been sent into the jury room, the circumstances would
have placed less emphasis on the exhibit. Before the dis-
trict court, however, Biggs explicitly waived an objection
to the manner of presenting the evidence to the jury in
the courtroom. When asked by the court whether he
“object[ed] to bringing the jury back into the courtroom to
pass that around,” Biggs’s counsel responded that
“[w]ithout waiving my initial objection [ ] of it not going on
at all, if we’re going to do it, I think that probably is the
best way to do it.” Accordingly, any objection to the
manner of the presentation of the contraband to the
No. 05-4613 13
jury has been waived. United States v. Redditt, 381 F.3d
597, 602 (7th Cir. 2004).
We turn at last to the sentencing issues that Biggs raises.
Biggs first argues that the rebuttable presumption of
reasonableness applied in this circuit is a violation of
United States v. Booker, 543 U.S. 220 (2005). He concedes
that the issue is foreclosed by circuit precedent, noting
that he raises this issue only to preserve it for further
review. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). His issue is preserved, but we adhere to the
holding in Mykytiuk.
Biggs next argues that his sentence is unreasonable. Biggs
qualifies as a career offender under United States Sentenc-
ing Guidelines Manual § 4B1.1, making his advisory
sentencing guideline range, which he does not contest, 360
months to life imprisonment. The district court sen-
tenced him to 360 months of imprisonment on each
count, to run concurrently, which was the bottom of the
advisory guideline range. The statutory minimum for
Biggs’s offense was twenty years of imprisonment. 21
U.S.C. § 841(b). Biggs argues on appeal that a sentence at
the statutory minimum of 240 months would better
meet the guidelines’s requirement that the sentencing
court craft a sentence “sufficient, but not greater than
necessary” to comply with 18 U.S.C. § 3553(a)(2). In
particular, he argues that a lower sentence is warranted
because of the small amount of cocaine recovered during
the initial stop and the fact that he would not be released
until approximately age 63, which he argues makes him
less of a danger to the public. Biggs also claims that his
sentence is disproportionately long compared to those
others received for career offender drug trafficking con-
victions, although he fails to take into account distinguish-
14 No. 05-4613
ing facts of his case, such as his decision to proceed to
trial, thereby losing a reduction in his base offense level
for accepting responsibility.
As we have previously noted, “[t]his Court’s role is not
to choose between possible sentences but rather to re-
view the reasonableness of the sentence imposed by the
district court.” United States v. Jung, 473 F.3d 837, 845 (7th
Cir. 2007) (citation omitted). In arriving at the sentence,
the district court examined Biggs’s arguments, reviewed
letters submitted by his family and supporters, considered
the nature of the offense, and emphasized Biggs’s recidi-
vism. The district judge appropriately weighed and
articulated the relevant factors in choosing a sentence.
Given the nature of the offense and Biggs’s significant
criminal history, a sentence at the bottom of the guide-
line range is not greater than necessary. In sum, we find
Biggs’s sentence to be reasonable.
III.
We conclude that the magistrate judge’s credibility
findings, as accepted and adopted by the district court,
were not clearly erroneous. This credited version of the
facts entails that probable cause existed for Biggs’s arrest
and that he voluntarily consented to the search of his
residence, making suppression of the evidence recovered
in the arrest and search unwarranted. At trial, the dis-
trict court did not abuse its discretion in permitting the
jury to view an exhibit of crack cocaine during delibera-
tions. Finally, we conclude that Biggs’s sentence was
reasonable. Accordingly, we AFFIRM both Biggs’s con-
victions and sentence.
No. 05-4613 15
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-14-07