United States v. Antwan Reed , 744 F.3d 519 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3701
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTWAN KENYA REED,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin
No. 2:10-CR-00080-RTR-1 — Rudolph T. Randa, Judge.
ARGUED MAY 31, 2013 — DECIDED MARCH 10, 2014
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Following a bench trial, Antwan
Kenya Reed was convicted of possession with intent to
distribute heroin, possession of a firearm by a felon, and
possession of a firearm in furtherance of a drug trafficking
crime. On appeal, he contends that there was no probable
cause to issue the warrant that led to the discovery of certain
evidence used against him at trial. He also maintains that the
2 No. 12-3701
district court abused its discretion in allowing the government
to present the details of a ten-year-old conviction for heroin
distribution, evidence he claims was used improperly to
demonstrate his propensity for committing heroin-related
crimes. Finally, he asserts that the evidence was insufficient to
demonstrate that he possessed the guns or drugs seized from
the home that was searched, or that he used the guns in
furtherance of a drug trafficking crime. We affirm.
I.
We begin with the warrant. On March 11, 2010, Milwaukee
police officer Michael Wawrzyniakowski submitted an
affidavit in support of an application for a search warrant for
3353 N. 27th Street in Milwaukee. In the application, the officer
sought permission to search for heroin, guns, items affiliated
with heroin or guns, and any other evidence that could be used
to demonstrate control over the premises. In the affidavit
supporting the application, the officer averred that a reliable
confidential informant had informed him that Reed was using
the N. 27th Street residence to store and sell heroin while
armed with a large caliber handgun. The informant had seen
Reed armed and delivering heroin at the home within the prior
seventy-two hours. The officer stated that the informant knew
from past experience that heroin is a white powdery substance
packaged in foil packs or “bindles” for sale, and that the
informant demonstrated to the officer his knowledge of the
appearance and packaging of heroin. The informant told the
officer that Reed armed himself to protect against other drug
dealers who reside in the same area.
No. 12-3701 3
The officer averred that he believed the informant to be
credible because the informant provided detailed information
in the past that led to the execution of a search warrant and the
arrest of three individuals for possession of marijuana and
cocaine base with intent to deliver. The informant also sup-
plied a physical description of Reed and positively identified
Reed through Milwaukee Police Department booking photo-
graphs. The informant previously had given the officer
locations of drug houses resulting in recoveries of drugs and
firearms by the officer and others, and had supplied the officer
with accurate information regarding persons wanted on
warrants and persons under probation or supervision. The
officer confirmed that he corroborated the informant’s infor-
mation about Reed by verifying that Reed had a prior felony
conviction for possession with intent to deliver heroin and that
Reed was currently on probation for that very offense.
Reed contends that the affidavit was too vague and lacking
in detail to support a finding of probable cause, and that the
officer did virtually nothing to corroborate the informant’s
information other than confirming innocent details such as
Reed’s physical appearance and the location of the residence.
He also contends that the officer omitted relevant information
that contradicted the informant’s account. For example, the
officers had surveilled the home on N. 27th Street, had seen
Reed only briefly and had not seen him engaged in any
suspicious activity.1 The district court determined that the
1
Reed also suggests that the officer who filed the affidavit knew but did
not reveal that Reed was barred from visiting the N. 27th Street residence
(continued...)
4 No. 12-3701
warrant was supported by probable cause and that, even in the
absence of probable cause, the evidence would not be excluded
because the officer acted in good-faith reliance on the warrant.
We need not consider whether the warrant was supported
by probable cause because the good-faith exception to the
exclusionary rule applies on these facts. United States v. Leon,
468 U.S. 897, 923 (1984); United States v. Miller, 673 F.3d 688,
693–94 (7th Cir. 2012). We review de novo a district court's
finding that the good-faith exception of Leon applies to a
particular warrant. Miller, 673 F.3d at 693; United States v. Bell,
585 F.3d 1045, 1052 (7th Cir. 2009). An officer's decision to
obtain a warrant is prima facie evidence that the officer was
acting in good faith. Leon, 468 U.S. at 921; Miller, 673 F.3d at
693. A defendant may rebut this evidence by demonstrating
that (1) the issuing judge abandoned the detached and neutral
judicial role; (2) the officer was dishonest or reckless in
preparing the affidavit; or (3) the warrant was so lacking in
probable cause that the officer could not reasonably rely on the
judge's issuance of it. Miller, 673 F.3d at 688; Bell, 585 F.3d at
1052; United States v. Garcia, 528 F.3d 481, 487 (7th Cir. 2008).
Although the warrant application in this instance lacked
certain details, the situation here is more comparable to Garcia
1
(...continued)
because of a “no-contact” order that had been entered against him in a
domestic dispute with a former girlfriend living at the home. Reed cites the
testimony of the officer’s partner that he (the partner) was aware of the no-
contact order. Nothing in the record supports a suggestion that the officer
who filed the affidavit knew and purposefully withheld this information
from the court commissioner issuing the warrant.
No. 12-3701 5
than it is to Owens v. United States, 387 F.3d 607 (7th Cir. 2004),
the case on which Reed largely relies. In Owens, the informant’s
information was three months old, compared to the seventy-
two hour time frame here. And the affiant in Owens provided
no information regarding the informant’s reliability. The
warrant application was a “bare bones” effort with minimal
detail. Because of those major flaws, we found that the warrant
was so deficient that no officer would reasonably rely on it,
and the Leon exception did not apply. In Garcia, as in Reed’s
case, the information was only three days rather than three
months old. The affidavit in Garcia and in Reed’s case specified
that the informant had provided reliable information to the
police in the past, that the informant was familiar with the
controlled substance at issue and had personally seen drugs at
the location to be searched. In Reed’s case, that information led
to arrests and charges in one case, and the officer averred that
other information the informant had provided in the past had
later been corroborated. Officer Wawrzyniakowski’s affidavit
could fairly be described as thin, but as in Garcia, we think
there was enough here for an officer to reasonably rely on the
court commissioner’s issuance of the warrant. See also Miller,
673 F.3d at 693–94 (applying the Leon exception to a warrant
even though the application was written with generic details
because the information was recent, based on first-hand
observation, and likely against the informant’s penal interest).
Reed presents no evidence that the court commissioner
abandoned his neutral role or that the officer was reckless or
dishonest in preparing the affidavit. We therefore affirm the
district court’s decision to admit the evidence discovered in the
search of the N. 27th Street residence.
6 No. 12-3701
II.
Reed also challenges the court’s admission of the details of
his prior conviction for possession of heroin with intent to
distribute. In the instant case, Reed was similarly charged with
possession with intent to distribute heroin as well as being a
felon in possession of a firearm and using a firearm in further-
ance of a drug trafficking crime. For the purposes of the felon-
in-possession charge, he stipulated to the existence of a prior
qualifying felony. The government nevertheless moved in
limine to admit the details of Reed’s prior heroin-related
conviction. The government contended that evidence of the
prior crime would be offered to demonstrate Reed’s intent,
knowledge and lack of mistake. The district court noted that a
bench trial eliminates the risk that a jury will be unduly
influenced by inappropriate evidence, and that the court
would apply its experience and expertise to analyze the
evidence when it was introduced. The court agreed that the
evidence could be relevant to the issues of intent, motive, and
lack of mistake.
Over Reed’s objection, Milwaukee police officer Jon
Osowski testified that Reed had previously been convicted of
“[p]ossession with intent, heroin, less than three grams, with
the enhancer of use of bulletproof garment as a second
subsequent drug offense.” Tr. at 135. The officer also testified
that, on the day Reed was arrested for that prior offense, police
officers were responding to a complaint of “shots fired” when
they encountered Reed along with several other men. Officer
Osowski stated that Reed ran when he saw the police officers,
stopped on their command, but refused to put his hands in the
air. Instead, the officers saw him toss an object into the brush.
No. 12-3701 7
An officer retrieved the object, which turned out to be fifty-two
foil packets of heroin totaling 2.87 grams.
During Officer Osowski’s testimony, Reed renewed his
objection to this evidence, arguing that the undue prejudice
greatly exceeded any probative value. This time, the court
noted that Reed had already stipulated to the conviction, that
the evidence was admitted for the reasons previously stated,
but that the defense had an “appropriate concern” as to the
level of detail required for the government’s purposes. The
court then counseled the government not to explore the prior
offense conduct in detail because it would be a waste of time.
The government asked no further questions of Officer
Osowski.
In its post-trial brief, the government discussed Reed’s prior
felony conviction, emphasizing that on both occasions, Reed
was found with dozens of foil bindles containing heroin:
Finally, Reed’s previous felony conviction in 2001
for possession with intent to distribute a controlled
substance, which involved 52 foil bindles containing
heroin, dispels any doubt that he was unaware of
what was going on at the home. Recall that 39 foil
bindles containing heroin were recovered from the
top of an end table in the master bedroom. Taken
together, all the evidence in this case demonstrates
that Reed’s home was on N. 27th Street, not any-
place else, and that he knowingly distributed heroin
from that residence.
R. 47, at 16. In his own post-trial brief, Reed pointed out a
number of deficiencies in the government’s evidence, focusing
8 No. 12-3701
on a lack of direct evidence proving that he lived in the home,
knew about the heroin found in the master bedroom, or
exerted any control over the drugs or guns found in the home.
He instead pointed to Vera Sims, his former girlfriend, who
lived at the home and was found in the master bedroom where
the heroin and one of the guns were located. Sims had pled
guilty to a drug crime in state court, and Reed noted that, at
best, weak circumstantial evidence connected him to the
contraband.
The court, in its final ruling, mentioned the prior conviction
only once. The court first recounted the extensive evidence
connecting Reed to the residence itself and to the master
bedroom in particular, including a change of address form
listing the N. 27th Street address, a significant amount of mail
addressed to Reed, an appointment card for a home visit from
his probation officer (found under the mattress of the bed in
the master bedroom), two jackets belonging to Reed in the
closet of the master bedroom (one of which contained $300 in
cash), an address book, a default judgment for a speeding
ticket, a job application and photos of Reed (including a photo
showing Reed wearing one of the coats found in the master
bedroom closet). Reed had been observed letting the dogs out
on the morning of the search, and had been seen at the resi-
dence on at least two prior occasions. When arrested on the
day of the search, Reed was wearing slippers, and he asked an
officer to retrieve his shoes from the master bedroom, where
they were found in close proximity to the nightstand where
some of the heroin was discovered. Reed, who was unem-
ployed, had $420 in cash in his pockets, this in addition to the
$300 found in his jacket hanging in the master bedroom closet.
No. 12-3701 9
In the context of detailing this litany of evidence, the court
addressed Reed’s prior conviction:
All of this coupled with the evidence that the tin foil
packaging was consistent with Reed’s prior offense
for drug distribution (prior conviction was stipu-
lated to by Reed and the government (Ex. 35)) the
large amount of cash on the premises (Reed was
unemployed) and the recorded phone calls from the
jail (Exhs. 32 & 33) which show Reed’s familiarity
and concern with the residence and it contents
establish beyond a reasonable doubt that Reed
knowingly and intentionally possessed a controlled
substance and that he possessed the controlled
substance with an intent to deliver it. Second, this
establishes that Reed was a convicted felon and in
possession of a firearm which had traveled in
interstate commerce.
R. 54, at 5–6.
We have recently clarified the proper role of 404(b) evi-
dence and cautioned against its use without a complete
analysis of the true probative value as compared to the undue
prejudice. See Miller, 673 F.3d at 695–700. See also United States
v. Lee, 724 F.3d 968 (7th Cir. 2013). In some instances, Rule
404(b) evidence is proffered to prove intent, knowledge or
absence of mistake but only by raising an improper inference
that the defendant had a propensity to commit the crime. We
therefore cautioned that the court must carefully consider how
the particular Rule 404(b) evidence will be used to prove
10 No. 12-3701
intent, knowledge or lack of mistake and make certain that it
is not through the use of a propensity inference.
Reed was convicted in a bench trial and so the details of his
prior conviction were not presented to a jury that would be far
less equipped to understand the limitation against the use of
propensity evidence. In “bench trials, judges routinely hear
inadmissible evidence that they are presumed to ignore when
making decisions.” Harris v. Rivera, 454 U.S. 339, 346–47 (1981).
See also United States v. Stinefast, 724 F.3d 925, 931 (7th Cir.
2013) (“Judges often hear improper argument and other forms
of inadmissible evidence that they are presumed to disregard
when deciding matters of importance.”); United States v. Shukri,
207 F.3d 412, 419 (7th Cir. 2000) (“In a bench trial, we assume
that the district court was not influenced by evidence improp-
erly brought before it unless there is evidence to the con-
trary.”). “To overcome this presumption of conscientiousness
on the part of district judges, a party must present some
evidence that the statement influenced the court's decision-
making.” Stinefast, 724 F.3d at 931.
In this instance, the district court judge considered the Rule
404(b) evidence only in the context of the similar packaging of
the heroin. But in Miller, we noted that a prior conviction for
cocaine possession could not be admissible merely because it
was for the same crime and because it also involved drugs in
small plastic bags. Miller, 673 F.3d at 699. “Pattern evidence is
propensity evidence, and it is inadmissible unless the pattern
shows some meaningful specificity or other feature that
suggests identity or some other fact at issue.” Miller, 673 F.3d
at 699 (emphasis in original). In Miller, we found that crack
cocaine packaged in plastic bags “is far too generic in drug
No. 12-3701 11
cases to make a pattern of two acts over eight years probative
of anything beyond propensity.” Miller, 673 F.3d at 699–700.
The same can be said of heroin packaged in foil bindles.
Indeed, Officer Wawrzyniakowski testified that he had
participated in “hundreds, if not thousands” of drug and
narcotics investigations in his fifteen years as a police officer,
and that based on his experience, heroin is “typically …
packaged in aluminum foil bindles.” Tr. at 14. This evidence
that Reed had previously been in possession of heroin pack-
aged in foil bindles was too generic to have anything more
than minimal probative value.
That said, we review the court's decision to admit or
exclude evidence for abuse of discretion. United States v. Simon,
727 F.3d 682, 696 (7th Cir. 2013); United States v. Thornton, 642
F.3d 599, 604 (7th Cir. 2011). We will reverse and order a new
trial only if any evidentiary errors are not harmless. Simon, 727
F.3d at 696; Fed. R. Crim. P. 52(a). Reed’s defense did not truly
involve questions of intent, knowledge or mistake in a manner
that would make the use of his prior conviction probative on
any of these issues. The court’s use of this evidence of similar
packaging was therefore questionable under our current case
law. But in the context of the extensive list of evidence on
which the district court relied to find that Reed exerted
ownership over the heroin, we find that any error was harm-
less. Again, had the evidence come before a jury, we may have
come to a different conclusion, but we presume that the court
was not unduly influenced by this weak pattern evidence. We
“can say ‘with fair assurance’ that the verdict was not substan-
tially swayed by the error.” Miller, 673 F.3d at 701 (citing
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
12 No. 12-3701
III.
Reed’s final challenge is to the sufficiency of the evidence
on all three counts in the indictment. We will overturn a
verdict for insufficiency of the evidence only if, after viewing
the evidence in the light most favorable to the government, the
record is devoid of evidence from which a rational trier of fact
could find guilt beyond a reasonable doubt. United States v.
McIntosh, 702 F.3d 381, 385 (7th Cir. 2012), cert. denied, 133 S. Ct.
1484 (2013); United States v. Olson, 450 F.3d 655, 664 (7th Cir.
2006).
The court cited enough evidence to support its conclusion
that Reed constructively possessed the drugs and at least one
of the guns found in the home. See United States v. Caldwell, 423
F.3d 754, 758 (7th Cir. 2005) (constructive possession exists
when a person knowingly has the power and the intention at
a given time to exercise dominion and control over an object,
either directly, or through others). Mere proximity to contra-
band, however, is not enough to prove constructive possession.
United States v. Griffin, 684 F.3d 691, 696 (7th Cir. 2012).
Proximity must be coupled with other evidence, including
connection with an impermissible item, proof of motive, a
gesture implying control, evasive conduct, or a statement
indicating involvement in an enterprise in order to sustain a
guilty verdict. Griffin, 684 F.3d at 696.
In this case, Reed shared the residence with his girlfriend,
Vera Sims, her two teenaged sons, her mother and, at times,
another adult acquaintance. The heroin in this case was found
on top of and inside of three nightstands adjacent to the bed in
the master bedroom. One gun was discovered in a purse in the
No. 12-3701 13
closet of the master bedroom, near two of Reed’s jackets. A
second gun was recovered from the kitchen and a third was
found in the basement. Ammunition for the gun found in the
bedroom was located near the gun in the kitchen. The assault
rifle discovered in the basement was next to several grams of
marijuana. Calls that Reed made to Sims from jail after his
arrest also tied him to the home, and some of the conversations
appeared to relate to ongoing drug sales.
Other than the guns found in the basement and the kitchen,
all of the physical evidence was found in close proximity to
personal items belonging to Reed. As the government notes,
Reed was at the house when the search warrant was executed,
and had been seen there on numerous occasions in the week
before the search. A considerable amount of Reed’s personal
mail was strewn about the house, including in the master
bedroom in the very nightstands where the heroin was
recovered. Personal identifiers implicating Reed were found in
the purse from which the gun in the bedroom closet was
recovered. The gun was a mere four feet from the nightstand
containing heroin, steps from Reed’s shoes. Sims admitted that
she shared the bedroom with Reed, and a recent appointment
card from Reed’s probation officer was under the mattress of
the bed in the master bedroom.
From this, the court could easily conclude that Reed lived
at the house and shared the master bedroom with Sims. The
heroin was found close to his clothing, shoes and other
personal belongings. See United States v. Irby, 558 F.3d 651, 654
(7th Cir. 2009). As for the guns, even if there was not enough
tying Reed to the guns in the basement or kitchen, there was
enough in the record to tie him to the gun in the closet of the
14 No. 12-3701
master bedroom, and only one gun was needed for the section
922(g)(1) conviction. See United States v. Buchmeier, 255 F.3d
415, 428 (7th Cir. 2001) (it is sufficient for the finder of fact to
conclude that the defendant possessed any one of the guns
charged in the indictment to sustain a conviction under the
felon-in-possession statute); 18 U.S.C. §§ 922(g)(1) and 924(e).
See also United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001)
(in joint residency case, husband may be found to construc-
tively possess gun together with wife when the gun was found
in the nightstand next to the husband’s bed with his eye-
glasses, clothing and wallet nearby). That gun, in addition to
being found near numerous personal items belonging to Reed,
was located in close proximity to $5000 worth of heroin.
Together with the other evidence in the record (including the
calls from the jail), that is enough to sustain the conviction for
possession of a firearm in furtherance of a drug trafficking
offense. See United States v. Eller, 670 F.3d 762, 765–66 (7th Cir.
2012), cert. denied, 132 S. Ct. 2728 (2012) (setting forth the factors
used to analyze the sufficiency of the evidence in a section
924(c) case). On this record, we cannot say that the record is
devoid of evidence from which a rational trier of fact could
find guilt beyond a reasonable doubt. McIntosh, 702 F.3d at 385.
The judgment is therefore
AFFIRMED.