United States v. Brian Lawrence ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3205
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN LAWRENCE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-CR-396 — Ronald A. Guzmán, Judge.
____________________
ARGUED NOVEMBER 10, 2014 — DECIDED JUNE 2, 2015
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
ROVNER, Circuit Judge. As part of a routine parole com-
pliance check, state parole agents searched convicted felon
Brian Lawrence’s residence and found cocaine and ammuni-
tion. A jury acquitted him of the ammunition charge, but
convicted him of possession with intent to distribute cocaine.
Lawrence appeals, arguing that the government failed to
prove him guilty beyond a reasonable doubt, that the district
2 No. 13-3205
court improperly denied his motion in limine to preclude
dog-sniff evidence and his motion for a mistrial, that the jury
instructions were misleading and finally, that his sentence
was unreasonable. We affirm on all grounds.
I.
In addition to regular parole visits, Illinois Department
of Corrections parole agents also occasionally conduct parole
compliance checks during which they arrive unannounced
and search a parolee’s residence. On October 22, 2010, parole
agents along with Chicago Police Department officers paid
such an unannounced visit to Lawrence’s residence at 6:40
a.m. Parole agents Louis Hopkins and James Hollenbeck
knocked on the front door while another parole agent and
two police officers, including Officer Lawrence Kerr, re-
mained outside along the perimeter of the house. Lawrence’s
fiancée, Phyllis Williams, opened the door. Agent Hopkins
told Williams that they were performing a parole compli-
ance check and were looking for Lawrence. Williams mo-
tioned them toward a first-floor bedroom. As the agents
walked past the door, Agent Hopkins looked up the stair-
way and saw Lawrence in his underwear and a t-shirt,
standing at the top of the stairs and beginning his descent
down. Lawrence informed the officers that his bedroom was
on the first floor and pointed to the same bedroom that his
fiancée, Williams, had previously identified. The agents, af-
ter handcuffing Lawrence for their safety, decided to survey
the second-floor area from where Lawrence came. They as-
cended the stairs to a dimly lit hallway, where, while shining
their flashlights, they found a drawer on the floor in the
middle of the hallway. Agent Hollenbeck took a photograph
of the drawer exactly as he found it at the moment of dis-
No. 13-3205 3
covery and the photo showed a plastic box, a box of sand-
wich bags, numerous other bags containing a white pow-
dery substance, and an amount of currency, later determined
to be $1,564. The parties stipulated that the white substance
was 492 grams of a mixture containing cocaine.
Police officers then took over the investigation, photo-
graphing the drawer and taking the defendant and the
drawer downstairs. Although the agents only had authoriza-
tion to search areas of the residence under Lawrence’s con-
trol, they, along with the police officers, secured the rest of
the second floor for their safety. 1 Officers knocked on the
remaining bedroom doors and found only sleeping or re-
cently awakened and cooperative residents. They did not
find any additional contraband, nor did they observe any
furniture with a missing drawer.
In the bedroom that both Lawrence and his fiancée had
identified as Lawrence’s bedroom, officers found a dark-
colored nightstand missing a drawer. The color and trim of
the drawer found in the hallway matched the nightstand
and the drawer was the proper fit for the empty space in the
nightstand. Agent Hopkins also noticed a dusting of white
powder on top of the nightstand.
1 Upon his release from prison on parole for first degree murder, Law-
rence signed a Parole Compliance Agreement. Under the terms of that
agreement, Lawrence consented to the search of his person, property,
and residence during the applicable time period. (Tr. 7/18/12, 9:30 a.m.,
p.56.) (D. Ct. R. 99, p.33) (App. R. 9-2, p.166). In executing a search, offic-
ers may take reasonable action to secure the premises and to ensure their
own safety and the efficacy of the search. Los Angeles County, v. Rettel,
550 U.S. 609, 614 (2007).
4 No. 13-3205
Inside the remaining part of the nightstand, officers
found multiple pieces of mail with Lawrence’s name on
them. Under the bed, the officers found a cardboard box
with papers, including checks for an account with the name
“Lawrence Construction,” some other correspondence with
Lawrence’s name, and a shoebox, inside of which they found
a small box of ammunition. Williams testified that the shoe-
box belonged to her and contained bullets she had taken
from her son.
Upon searching the closet, officers discovered clothing
and shoes that fit Lawrence and a locked safe. Officers asked
Lawrence how they could open the safe, but Lawrence ini-
tially denied having a combination or key to the safe. Agent
Hopkins testified that eventually Lawrence agreed to dis-
close the location of the key if Hopkins would agree to give
“two stacks” to his “old girl.” Agent Hopkins interpreted
this as a request that he give $2,000 of the amount in the safe
to Lawrence’s fiancée, Phyllis Williams. Lawrence subse-
quently told Agent Hopkins that he could find the key in his
bedroom closet in the pocket of a white shirt with beige
stripes, which is precisely where Hopkins found it. Inside
the safe, agents and officers found a large sum of money and
a purple Crown Royal Whiskey bag containing more money,
the total of which was later determined to be $14,364.
Officer Kerr testified that he kept the $14,364 recovered
from the safe isolated from the $1,564 recovered from the
drawer as the latter had clearly been contaminated with
drug-related chemicals from its proximity to scales and co-
caine. In later controlled testing, a certified drug-detecting
dog, Achilles, alerted to the scent of drugs on both envelopes
of currency.
No. 13-3205 5
As for other evidence presented at trial, an expert fin-
gerprint examiner was unable to find any usable fingerprints
on the ammunition, razor blades, cocaine packaging, or the
outside of the cocaine-dusted scale. He did find three latent
fingerprints inside the battery cover of the scale, but they did
not belong to Lawrence, his fiancée, or anyone else in the
house.
The jury found Lawrence not guilty of count one—
knowingly possessing ammunition that had traveled in in-
terstate commerce after having been previously convicted of
a crime punishable by one year (18 U.S.C. §§ 922(g)(2) and
924 (e)(1)), and guilty on count two—knowingly possessing
with intent to distribute cocaine. (21 U.S.C. § 841(a)(1)). The
district court sentenced Lawrence to the lowest sentence rec-
ommended by the United States Sentencing Guidelines, 262
months’ imprisonment.
II.
A.
Lawrence appeals five distinct issues, arguing first that
the jury verdict should be overturned because the govern-
ment failed to prove Lawrence guilty beyond a reasonable
doubt. When asked to overturn a jury verdict, we must view
the evidence in the light most favorable to the prosecution,
and reverse only if the record is devoid of any evidence from
which any rational jury could find guilt. U.S. v. Pereira, 783
F.3d 700, 703 (7th Cir. 2015); U.S. v. Miller, 782 F.3d 793, 797
(7th Cir. 2015). This is a momentous task and has been de-
scribed as anything from “extremely difficult” to “a nearly
insurmountable hurdle.” See, e.g., Miller, 782 F.3d at 797;
U.S. v. Parker, 716 F.3d 999, 1007 (7th Cir.) cert. denied, 134 S.
6 No. 13-3205
Ct. 532 (2013). Under this standard, we neither weigh evi-
dence nor assess the credibility of witnesses, as those tasks
are for the trier of fact. U.S. v. Sewell, 780 F.3d 839, 847 (7th
Cir. 2015).
Lawrence argues that the jury had insufficient evidence
to find that he possessed the crack cocaine. We conclude,
however, that the jury had more than sufficient evidence be-
fore it to conclude just that. Lawrence presents a number of
instances of conflicting evidence in his recitation of the facts.
For example, he points to the fact that one agent thought
Phyllis Williams took several minutes to open the door,
while another agent testified that he did not think it took a
suspiciously long time. One agent testified that Williams
pointed to a bathroom when asked where Lawrence could
be found; another agent testified that she pointed to a bed-
room. One agent testified that Lawrence was walking down
the stairs when he first saw him; the other agent reported
that they met him at the base of the stairs. None of these dis-
crepancies is significant (and most are not discrepancies at
all, but rather a matter of viewpoint). As we just discussed,
when reviewing a decision for sufficiency of the evidence we
must view all of the evidence in the light most favorable to
the government. U.S. v. Yu Tian Li, 615 F.3d 752, 755 (7th Cir.
2010). But even if we were to consider the varying accounts,
none of it conflicts with the verdict in any significant man-
ner, and certainly not in a manner that would cause us to
conclude that no rational jury could have made the finding
that it did. 2
2 The only materially conflicting testimony came from Lawrence’s fian-
cée Williams who testified that another resident of the house, Reginald
Camphor, spontaneously announced to the police that the drugs and
No. 13-3205 7
Because Lawrence was not caught actually holding or
carrying the drugs, this case is one in which the government
had to prove constructive possession. Constructive posses-
sion is a legal fiction in which a person is deemed to possess
contraband even without immediate physical control of the
object. U.S. v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012). To
prove constructive possession, the government must estab-
lish that the defendant knowingly had both the power and
intention to exercise dominion and control over the object,
either directly or through others. Id. at 695. Not only can
possession be actual or constructive it can also be exclusive
or joint. U.S. v. Gilbert, 391 F.3d 882, 886 (7th Cir. 2004). Law-
rence and his fiancée, therefore, could have jointly possessed
the contraband found in their bedroom. All forms of posses-
sion can be proved by direct or circumstantial evidence. Id.
at 886.
In constructive possession cases the government can
demonstrate the required nexus between the defendant
and the contraband by showing either exclusive control or
a substantial connection to the contraband. Griffin, 684 F.3d
at 695. If a defendant lives alone in an apartment and a
search reveals contraband, proving constructive possession
is relatively easy. When a defendant shares living space
with others, the proof requires a more exacting approach
because a court must be careful to separate true possessors
from mere bystanders. Id. Proximity to contraband or pres-
money were his. (Tr. 7/19/12 9:55 a.m., p.364-65) (D. Ct. R. 100, p.829-30)
(App. R. 9-2, p.474-75). The jury, who heard all of the evidence, was enti-
tled to discredit the hearsay testimony of Camphor as reported through
the defendant’s fiancée.
8 No. 13-3205
ence on the property or association with a person in actual
possession is not enough. Id. at 696.
This court has recently clarified how we ought to de-
termine the substantial connection question in cases where
the defendant shares a residence with others. In such an in-
stance, the government must demonstrate a substantial
connection between the defendant and the contraband.
Griffin, 684 F.3d at 697. Lawrence, however, would like this
court to go further. He argues that the government must
show some unequivocal conduct on the part of the defend-
ant connecting him to the drugs. But this is not what our
case law requires. Griffin exhaustively examined this cir-
cuit’s law on constructive possession in jointly occupied
properties and boiled it down as follows: “[w]hen a de-
fendant jointly occupies a residence, proof of constructive
possession of contraband in the residence requires the gov-
ernment to demonstrate a ‘substantial connection’ between
the defendant and the contraband itself, not just the resi-
dence.” Griffin, 684 F.3d at 697. One way to establish such a
connection is by demonstrating some conduct that links the
individual to the illegal items, but that is not the only way.
Id. at 696, 698; U.S. v. Morris, 576 F.3d 661, 668 (7th Cir.
2009).
In this case, the government had plenty of evidence
from which a jury could connect Lawrence to the drugs even
if he shared the residence with many people and shared his
bedroom with his fiancée. When the agents knocked on the
residence door, it took the defendant’s fiancée a longer-than-
No. 13-3205 9
usual amount of time to open the door. 3 The defendant was
standing at the top of the stairs in his underwear just a few
feet from the drawer full of cocaine, drug paraphernalia, and
a large amount of cash. The agent testified that Lawrence
looked surprised and shocked to see him. Of course, Law-
rence would have known that the agents could only search
the room under his control, as that had been explicitly writ-
ten into his parole agreement. The evidence painted a pic-
ture for the jury of a parolee startled awake by agents at his
door, purposefully rushing to move contraband to another
area of the house that he believed was outside of his control.
Both Lawrence and his fiancée separately identified a
bedroom on the first floor as the one they shared. Inside the
room agents and officers found a nightstand adjacent to
Lawrence’s bed that exactly matched the drawer they had
seen earlier at the top of the stairs, and that was itself miss-
ing a drawer. The nightstand contained multiple pieces of
mail addressed to Lawrence and bank checks from an ac-
count for “Lawrence Construction.” The room also con-
tained clothes and shoes that fit the defendant and a locked
safe. Lawrence was able to identify the exact location of the
key that opened that safe.
3 This is an example of a fact in which the jury could consider the credi-
bility of various witnesses. Agent Hopkins testified that it took Law-
rence’s fiancée, Phyllis Williams, several minutes to answer the door.
Agent Hollenbeck testified that it did not seem like a long or suspicious
amount of time had passed before Williams opened the door. These facts
are not necessarily competing, but rather subjective interpretations of the
events. The jury was entitled to give credence to either description and
upon review of the sufficiency of the evidence, we consider the facts in
the light most favorable to the jury verdict. Li, 615 F.3d at 755.
10 No. 13-3205
These facts easily fall into line with others in which we
have determined that a defendant had constructive posses-
sion of contraband found in a shared residence. See U.S. v.
Reed, 744 F.3d 519, 526 -27 (7th Cir.) cert. denied, 135 S. Ct. 130
(2014) (finding sufficient evidence of possession where
drugs were found in the nightstand in the master bedroom
in a residence shared by several others, where mail with the
defendant’s name was also found in the nightstand, and
where the drugs were in close proximity to other personal
effects like shoes and appointment cards belonging to the
defendant); U.S. v. Jones, 763 F.3d 777, 799-800 (7th Cir.), va-
cated, in part, on other grounds, 774 F.3d 1104 (7th Cir. 2014)
cert. denied, No. 14-9190, 2015 WL 1539028 (2015) (finding
sufficient evidence to support a jury finding of constructive
possession where the defendant’s cell phone and car were
located at a residence the day of and five days before a raid
that uncovered crack cocaine in common areas of the house);
U.S. v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (finding suffi-
cient evidence for a jury determination of constructive pos-
session of a gun in a shared bedroom where the police found
the gun in a nightstand next to the defendant’s bed, with his
eyeglasses, clothing, and wallet nearby); U.S. v. Richardson,
208 F.3d 626, 628, 632 (7th Cir. 2000) (finding sufficient evi-
dence for jury determination of constructive possession of a
gun where the gun was on a bed along with envelopes ad-
dressed to the defendant and prescription medications with
his name and the same address on the labels); U.S. v. Kitchen,
57 F.3d 516, 519-21 (7th Cir. 1995) (finding sufficient evi-
dence for a jury determination of constructive possession in
a shared residence where the police found papers and in-
voices with the defendant’s name next to the gun, along with
a gold bracelet with his nickname and clothing in his size).
No. 13-3205 11
There was also sufficient evidence that Lawrence traf-
ficked in cocaine. An expert witness in narcotics trafficking
testified that the quantity of narcotics far exceeded any
amount one might have for personal use. He concluded that
the 492 grams of cocaine found in the drawer would allow
approximately 49,000 people to get high, and he estimated
the street value at $40,000 to $100,000. He also described
how the razor blades, scales, and plastic bags found in the
drawer are all typical tools used to prepare cocaine for dis-
tribution. Finally, the expert testified that large amounts of
cash, like that found in the drawer and safe are associated
with drug trafficking, as drug sales generate large amounts
of cash and because suppliers need large amounts to resup-
ply their stock. The locked safe in the bedroom contained
14,364 drug-contaminated dollars and the drawer contained
another $1,564.
Lawrence argues that the absence of fingerprints on the
drug evidence indicates that no rational juror could con-
clude that he possessed the drugs. The fingerprint examiner,
however, testified that there are many reasons why useful
fingerprints might not be left on an object.
Lawrence appears to confuse circumstantial evidence
with speculation. “A verdict may be rational even if it relies
solely on circumstantial evidence. The question we must an-
swer is whether each link in the chain of inferences the jury
constructed is sufficiently strong to avoid a lapse into specu-
lation.” U.S. v. Moore, 572 F.3d 334, 337 (7th Cir. 2009) (inter-
nal citations omitted). As we describe above, the links in the
chain were all sufficiently strong.
12 No. 13-3205
In sum, the amount of evidence of Lawrence’s guilt was
overwhelming and was undoubtedly sufficient to support a
reasonable jury determination of guilt.
B.
Lawrence argues next that the district court erred by
denying his motion in limine to exclude evidence obtained by
the drug-detecting dog. We review a district court’s decision
to admit evidence for an abuse of discretion. Common v. City
of Chicago, 661 F.3d 940, 943 (7th Cir. 2011).
As part of its case, the government presented evidence
that the money discovered in the safe, as well as the money
found in the nightstand drawer, had been tainted by drug
residue—a sign that the money had been part and parcel of
the drug trade. The government elicited lengthy testimony
about how the money from the safe had been vigilantly seg-
regated from other contaminated material, and that a highly
trained and skilled drug-detecting dog had alerted to the
scent of drugs on the currency after it had been hidden in a
carefully controlled environment. The government’s presen-
tation included detailed descriptions of its double blind
methodology; controlled testing on freshly minted currency;
and the dog’s testing, training, and qualifications.
We need not detail all of that methodology here, as
Lawrence does not argue that the dog was unqualified or
that the circumstances surrounding the alert were uncon-
trolled or faulty. Instead, he argues that the whole of this
genre of evidence is meaningless—that such a high percent-
age of U.S. currency is tainted with drugs that evidence of
tainted currency provides no indication of when or how the
cash became contaminated. Indeed, this was an argument
No. 13-3205 13
that was well-accepted by this court and many others
throughout the 1990’s. The defendant cites our opinion in
U.S. v. $506,231, 125 F.3d 442, 453 (7th Cir. 1997), as well as
cases from several other jurisdictions for the proposition that
a drug alert on currency is meaningless. Our position in the
$506,231 case was a bit more nuanced than the defendant
describes but, in any event, in 2005 this court, after review-
ing the empirical and scientific evidence on contamination,
changed course:
Given the apparently rigorous empirical test-
ing giving rise to this conclusion, it is likely
that trained cocaine detection dogs will alert to
currency only if it has been exposed to large
amounts of illicit cocaine within the very recent
past. As a result … it seems that a properly
trained dog’s alert to currency should be enti-
tled to probative weight.
U.S. v. $30,670, 403 F.3d 448, 459 (7th Cir. 2005). This is not to
say that a defendant could not attempt to present his own
evidence of contaminated currency today. See, e.g., U.S. v.
$100,120.00, 730 F.3d 711, 719-20 (7th Cir. 2013). But Law-
rence did not do so. Instead he argues, without any reference
to our more recent cases, that there is a per se rule that dog
alerts to drug-contaminated currency are unreliable. Our
current case law does not so hold. $30,670, 403 F.3d at 459.
The government presented ample evidence of the train-
ing, controlled testing, certification, and reliability of the
drug-detecting dog in this case. This was more than suffi-
cient to support the district court’s finding that the results of
the controlled canine drug-detection test offered probative
value to the case and could be considered by a jury as evi-
14 No. 13-3205
dence that the currency found in the drawer and in the safe
had been in recent contact with drugs.
C.
Among the uphill routes Lawrence plods is the one in
which he asks this court to overturn the district court’s deni-
al of a mistrial. We review a denial of a mistrial for an abuse
of discretion with an extra helping of deference. U.S. v. Var-
gas, 689 F.3d 867, 873 (7th Cir. 2012). The district court, after
all, “is in the best position to determine the seriousness of
the incident in question, particularly as it relates to what has
transpired in the course of the trial.” Id. citing U.S. v. Clarke,
227 F.3d 874, 881 (7th Cir. 2000). We, therefore, “must affirm
unless we have a strong conviction that the district court
erred,” and the error committed was not harmless. Id. The
ultimate inquiry is whether the defendant was deprived of a
fair trial. Id. citing Clarke, 227 F.3d at 881.
In this case, it is undisputed that an error occurred at
trial. Agent Hopkins testified that after Lawrence first de-
nied having access to the safe, he later offered to tell Hop-
kins where the key was if Hopkins would give “two stacks”
($2,000) to his “old girl” (Lawrence’s fiancée, Williams). De-
fense counsel objected to the admission of this statement. In
a side bar conference, Lawrence’s counsel stated that alt-
hough he did not object to the statement about the location
of the key, he believed that the government had not ten-
dered the statement about the “two stacks,” as required by
Rule 16(a)(1) of the Federal Rules of Criminal Procedure.
Rule 16(a)(1) requires the government, upon the defendant’s
request, to disclose to the defendant the substance of any
relevant oral statement made by the defendant, before or af-
No. 13-3205 15
ter arrest, if the government intends to use the statement at
trial. Fed. R. Crim. P. 16(a)(1).
At the time of the side bar, the government lawyer
thought that he had previously discussed the statement with
Lawrence’s counsel and reported that he believed the con-
versation had been memorialized in a letter. After checking
during the lunch break, however, the government reported
back that it had not adequately memorialized the statement
in its letter to defense counsel. The defendant moved for a
mistrial.
After hearing the defendant’s arguments about the
prejudice and the government’s reply, the district court de-
nied the motion for a mistrial and instead, while Agent
Hopkins was still on the stand, instructed the jury that the
“testimony to the effect that the defendant requested from
the parole agent that the parole agent give his girl Phyllis
Williams two stacks or $2000 in exchange for information as
to where the key to the safe was” had been improperly ad-
mitted and was stricken from the record. (Tr. 7/18/12 9:30
a.m., p.115) (App. R. 9-2, p.225) (D. Ct. R. 99, p.92). The dis-
trict court instructed the jury to disregard it “in every re-
spect.” Id. Lawrence argues however that the error was so
great that it “overpowered the district court’s instruction to
the jury to disregard Agent Hopkins’ testimony,” (Lawrence
Brief at 28), and the district court abused its discretion in re-
fusing to grant a mistrial.
A new trial is “warranted only when all other, less dras-
tic remedies are inadequate.” U.S. v. Warren, 454 F.3d 752,
760 (7th Cir. 2006), and absent a showing of abuse of discre-
tion and prejudice, the trial court is well within its rights to
fashion a remedy for the government's noncompliance with
16 No. 13-3205
Rule 16. See id. A new trial is appropriate only if the alleged
Rule 16 violation deprived Lawrence of a fair trial. Id.
Our robust deference in this instance is warranted be-
cause district court judges are in the best position to evaluate
the effect that an error may have on the overall course of the
proceedings. U.S. v. Curry, 538 F.3d 718, 728 (7th Cir. 2008).
Consequently, district court judges have broad discretion in
deciding to give a cautionary instruction rather than to de-
clare a mistrial. Id. Our case law requires us to assume that
juries follow the corrective instructions they are given.
U.S. v. Wilson, 237 F.3d 827, 835 (7th Cir. 2001).
Curative instructions, although not perfect (see Maus v.
Baker, 747 F.3d 926, 927-28 (7th Cir. 2014)), can alleviate prej-
udice. And they have long been accepted in this circuit as a
reasonable use of a district court’s discretion to avoid a mis-
trial. See, e.g., Jones, 763 at 809; U.S. v. Adkins, 743 F.3d 176,
186 (7th Cir.), cert. denied, 134 S. Ct. 2864 (2014); Curry, 538 F.
3d at 728. Thus the defendant’s citations to cases from half a
century ago and other circuits do not offer us much guid-
ance.
The government’s position—that it disclosed the state-
ment in a pre-trial discussion, despite not having written
confirmation to prove it—raises questions about whether
there was any prejudice at all. In any event, even if the gov-
ernment had not disclosed the statement in any way, the dis-
trict court did not abuse its discretion by failing to grant a
mistrial. The district court issued a curative instruction after
a short recess and while Agent Hopkins was still on the
stand and the testimony was still fresh in the jurors’ minds.
See U.S. v. Marr, 760 F.3d 733, 742 (7th Cir. 2014). The district
court judge also instructed the jurors at the start and end of
No. 13-3205 17
trial not to consider any evidence that the court excluded or
told them to disregard.
Admittedly, the comment demonstrated Lawrence’s
control and ownership of the money in the safe. But the fact
that Lawrence knew the exact location of the hidden key was
just as demonstrative of his control as was the comment
about the “two stacks” and the latter added little, if any-
thing. Defense counsel also claims that Lawrence would be
prejudiced by the introduction of an attempt to blackmail a
parole agent. As the government points out, however, this
was not blackmail in any traditional sense. Agent Hopkins
did not testify that the defendant offered to pay the agent
any money or that Lawrence threatened Hopkins in any way
in order to obtain the money for himself. Instead, the agent
testified that Lawrence offered to disclose the location of the
key if the agent gave Lawrence’s fiancée some of the money.
Certainly a reasonable jury could have viewed this as an en-
dearing altruistic effort to help out his fiancée, rather than as
an act of blackmail. But even if a jury might view it negative-
ly (and we agree that many juries might), the district court
did not abuse its discretion by determining that a curative
instruction would rectify any potential prejudice.
D.
In his fourth issue on appeal, Lawrence argues that the
district court erred by allowing a non-pattern jury instruc-
tion on possession. We review de novo whether a challenged
jury instruction fairly and accurately summarized the law,
but the trial court's decision to give a particular instruction is
reviewed for an abuse of discretion. Hawkins v. Mitchell, 756
F.3d 983, 998 (7th Cir. 2014). We will reverse only if the in-
18 No. 13-3205
structions, taken as a whole, misled the jury. U.S. v. Curtis,
781 F.3d 904, 907 (7th Cir. 2015).
Lawrence objects to the non-pattern “possession” in-
struction without explaining to this court what particular
portion of the instruction he objects to and why. In fact, no-
where in his brief does he even direct this court to a record
cite of the jury instruction to which he objects. Nor does he
explain his specific objection, other than to say that the ex-
planation of the term “possession” was “overly broad,” and
unnecessary. (Lawrence Brief at 30). 4
The instruction given to the jury was as follows:
Possession of an object is the ability to control
it. Possession may exist even when a person is
4 The fact section of Lawrence’s brief (p.15) cites to some transcript pages
about the jury instruction conference, but without any reference to the
jury instructions themselves, or the particular portion of them to which
Lawrence objects. Moreover, the defendant cites transcript pages 400,
402, 404, etc. In this particular case, transcripts were submitted at two
different points in the appellate court record, occur over the course of 11
dates, and were not sequentially numbered originally. Each date was
assigned a separate record number by the district court. It is difficult,
therefore, for this court to find a particular transcript page without refer-
ence to a date or at least to a record number in the district court or this
court. In short, there are many different possible locations for a page 404
in the record. After a time-consuming search, we were able to track
down the jury instruction discussion at Tr. 7/19/12, pp.404-434; (D. Ct.
R. 100, pp.168-198) (App. Ct. R. 9-2, p.514-544). To make our cites explic-
itly clear, we have cited to a transcript date and page number, the district
court record number and page number, and the appellate court record
number and page number. Although such a duplicative system of cita-
tion might not always be required, we urge litigants before this court to
use a system of record citation that is unambiguous and directs this court
to the appropriate place in the record in the clearest manner possible.
No. 13-3205 19
not in physical contact with the object, but
knowingly has the power and intention to ex-
ercise direction and control over it, either di-
rectly or through others.
Also, an individual may possess an object if
other individuals share the ability to exercise
control over the object. Possession may be ei-
ther sole or joint. If one person alone has pos-
session of an object, possession is sole. If two or
more persons share possession of an object,
possession is joint. If you find beyond a rea-
sonable doubt that the defendant knowingly
possessed the object in question, either alone or
jointly with others, you should find that the de-
fendant possessed the object.
A person can possess an object without owning
the object, provided that the person has the
power and intention to control the object.
(D. Ct. R. 61, p.15) (App. R. 5-3, p.94).
Because we do not know to what the defendant objects,
we assume, as the government did, that he objected in gen-
eral to the instruction on joint possession. The district court
found that an instruction on joint possession was essential:
[g]iven the testimony, especially the testimony
of the defense witnesses, it’s important to in-
struct the jury that more than one person can
possess an object. It is possible for the jury to
draw the inference that both the defendant and
Ms. Williams possessed the bullets from the
testimony given. A rational person could draw
20 No. 13-3205
that inference, depending on what portions of
the testimony of the government witnesses and
Ms. Williams they believed.
(Tr. 7/19/12, 1:20 p.m., p.412) (D. Ct. R. 100, p.176) (App.
R. 9-2, p.522). Although the district court spoke here of the
bullets that were found under the bed that Lawrence shared
with his fiancée, it applies equally to both the drug and
money evidence. The district court was correct in assuming
that an instruction on joint possession was necessary.
The jury instruction was not only necessary and did not
mislead the jury, but it set forth a correct explanation of the
law on joint possession in which possession may either be
sole or joint. Jones, 763 F.3d at 800; U.S. v. Villasenor, 664 F.3d
673, 681 (7th Cir. 2011). In fact, in the face of a comparable
challenge, this court has upheld a similar instruction that
stated:
Possession may be sole or joint. If one person
alone has actual or constructive possession of a
firearm, possession is sole. If two or more per-
sons share actual constructive possession of a
firearm, possession is joint. An individual may
possess a firearm even if other individuals may
have access to a location where possession is
alleged. Also, an individual may possess a fire-
arm even if other individuals share the ability
to exercise control over the firearm. Possession
may be joint.
U.S. v. Thornton, 463 F.3d 693, 696 (7th Cir. 2006). See also,
U.S. v. Aldaco, 201 F.3d 979, 989-90 (7th Cir. 2000); U.S. v. Tir-
rell 120 F.3d 670, 675-76 (7th Cir. 1997). In the face of
No. 13-3205 21
Thornton’s objection that the instruction was too broad, a
panel of this court held that the instruction accurately stated
the law on joint possession. Thornton, 463 F.3d at 699.
We find that the district court did not abuse its discre-
tion by giving the supplemental jury instruction, that it was
a correct summary of applicable law, and did not mislead
the jury.
E.
Our final deferential review is of Lawrence’s sentence
which, because it was within the Guidelines, we presume to
be reasonable. U.S. v. Moore, No. 14-3269, 2015 WL 1874216,
at *5 (7th Cir., Apr. 24, 2015). The defendant does not contest
the Guidelines calculation in this case, nor does he argue
that the district court judge failed to apply the individual
factors specified in § 3553 as required. See U.S. v. Lua-Guizar,
656 F.3d 563, 566 (7th Cir. 2011). The district court correctly
calculated Lawrence’s Guidelines calculation as 262-327
months and sentenced him at the lowest end of that range.
Lawrence requested that the district court judge use his dis-
cretion to disregard the career offender enhancement and
sentence him in the range of 92-115 months.
Lawrence’s counsel argues that even a sentence at the
very lowest end of the Guidelines range was excessive. He
argues that the offense of conviction was non-violent, Law-
rence had less than a half kilogram of cocaine, he had ob-
tained his GED and had a work history, had the support of
his family members and friends, and that the bulk of his
crimes had occurred when he was much younger.
Our review of sentencing decisions generally is limited
to whether they are reasonable. Moore, 2015 WL 1874216 at
22 No. 13-3205
*3. The district court meticulously reviewed Lawrence’s
criminal history and even particularly noted that he was
“aware of the draconian effect of career offender status and
the possibility for an unjust determination if that statute is
applied and followed in sentencing technically without re-
gard for nuances and differences in the backgrounds and
criminal histories of different defendants.” (Tr. 8/22/13, p.9)
(D. Ct. R.102, p.9) (App. R. 9-2, p.645). The district court then
went on, however, to note Lawrence’s disturbing criminal
history. At the age of nineteen, he was convicted of aggra-
vated battery with a firearm, armed violence, and four
counts of aggravated battery for shooting another person.
He served only two years of his six year sentence before be-
ing paroled. Then, four years later, he was convicted of first
degree murder and, three days later, attempting to buy five
kilograms of cocaine. He served only eight years of his twen-
ty-year sentence for those crimes, and committed the offens-
es at issue in this case while on parole for the first degree
murder conviction. The court concluded that he had spent
the better part of his time since the age of 18 committing
crimes of violence and dealing drugs.
The district court judge thoughtfully explained his rea-
soning for applying the career offender enhancement, noting
that to ignore it would be unfair “to the public, the people
that the defendant would be living with and in whose com-
munity he has been conducting crimes of violence and drugs
since he was 18 years of age.” (Tr. 8/22/13, p.11) (D. Ct.
R.102, p.11) (App. R. 9-2, p.647):
this defendant has been given three clear op-
portunities in his life to do right. He has been
sentenced to increasingly heavy jail time in an
No. 13-3205 23
attempt to deter him from future criminal con-
duct. He has been placed on parole in an at-
tempt to help him rehabilitate. And none of
that has worked. He has committed serious of-
fenses. He has done so repeatedly. He has done
so in spite of having been previously incarcer-
ated.
Id. The Judge concluded by noting that he had considered
the § 3553 factors, that he had prioritized the need to protect
the community from drugs and violence and considered the
possibility of rehabilitation. The district court exercised dis-
cretion reasonably and thoughtfully in refusing to ignore the
career offender enhancement. See, e.g., U.S. v. Jones, 739 F.3d
364, 373-74 (7th Cir. 2014).
III.
For the reasons articulated above we affirm the district
court opinion in its entirety.
AFFIRMED