United States v. Harris, Bryant ( 2005 )


Menu:
  •                              UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued October 18, 2005
    Decided November 21, 2005
    Before
    Hon. RICHARD A. POSNER, Circuit Judge
    Hon. MICHAEL S. KANNE, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 04-3601
    UNITED STATES OF AMERICA,                   Appeal from the United States District
    Plaintiff-Appellee,           Court for the Northern District of
    Illinois, Eastern Division
    v.
    No. 03 CR 885 - 1
    BRYANT HARRIS,
    Defendant-Appellant.              John W. Darrah,
    Judge
    ORDER
    Chicago police observed Bryant Harris selling crack on the street and
    arrested him. Harris, a felon, promptly revealed that he had a gun back at the
    apartment he shared with his mother and led the officers to it. A federal grand jury
    later charged Harris with possession of a firearm by a felon, 
    18 U.S.C. § 922
    (g)(1),
    and conspiracy to possess and distribute crack, 
    21 U.S.C. §§ 846
    , 841(a)(1). Before
    trial, Harris moved to suppress the gun on the theory that he was arrested without
    probable cause and the gun was a tainted fruit of that arrest. The district court
    denied his motion. A jury found Harris guilty on the gun charge but acquitted him
    on the drug charge.
    No. 04-3601                                                                    Page 2
    On appeal Harris argues that the gun should have been suppressed, not
    because his arrest lacked probable cause but for an entirely new reason—he says
    that police “tricked” him into revealing he had a gun back at his apartment. Harris
    also challenges the sufficiency of the evidence presented at trial. Neither
    contention has merit.
    At the suppression hearing, Officer Thelen testified as follows: On the
    evening of May 22, 2003, he conducted surveillance of a three-flat on west Ohio
    Street. From 50 to 60 feet away, he saw three buyers separately approach Harris,
    engage him in brief conversation, and hand him money. According to Thelen, Harris
    pocketed the money and yelled, “One time!” to co-defendant Pettis, who was nearby.
    The buyer then walked over to Pettis, who removed a plastic strip from under a
    brick, tore off a piece of the strip for the buyer, and replaced the remainder of the
    strip back under the brick. During his seven years in the Chicago Police
    Department, Thelen had seen this type of two-man narcotics transaction before and
    testified that dealers thought it made securing a conviction more difficult. Thelen
    called for backup.
    Backup officers arrived and detained Harris and Pettis. Officer Thelen then
    emerged from his hiding place, lifted the brick, and recovered the plastic strip with
    nine packets of apparent crack remaining. Officers placed Harris in the backseat of
    a squad car, and Thelen read him the Miranda warnings.
    At that point, said Officer Thelen, Harris volunteered that he could not go
    back to jail and offered to produce a gun if Thelen would let him go. Harris
    explained that there was a gun in a blue shoe in the apartment he shared with his
    mother. Thelen and his backup officers, with Harris still in the car, then drove to
    Harris’s one-room apartment where they spoke with his mother, Rosie Harris. She
    signed a written consent to search the apartment, and the officers recovered a pistol
    from inside a man’s blue shoe.
    Harris, on the other hand, testified at the suppression hearing that he was by
    himself drinking cognac and smoking cigarettes on a friend’s porch when the police
    appeared and arrested Pettis. Until that point, according to Harris, he was aware
    that Pettis was selling drugs nearby, but had neither participated in the sales nor
    conversed with Pettis. The officers arrived and handcuffed him anyway, and Officer
    Thelen told him they received a call about a man with a gun. Harris maintained
    that Thelen threatened to plant five bags of crack on him unless he gave up the gun.
    Harris responded that Thelen would find a gun at his mother’s house. Harris
    testified that he believed Thelen had “tricked” him into disclosing the gun and
    stated that Thelen even admitted doing so in front of another officer.
    Harris admitted during cross-examination that, after police found the gun,
    they took him to the station where an ATF agent prepared a two-page, written
    No. 04-3601                                                                     Page 3
    statement for his signature. Before signing it, Harris conceded, the ATF agent gave
    him Miranda warnings again, which he acknowledged and waived. Harris initially
    signed only the first page of the statement but later that day, after a third round of
    Miranda warnings, he signed the second page. Harris testified that no one forced
    him to sign anything at any time.
    The district court denied Harris’s motion to suppress. The court credited
    Officer Thelen over Harris and reasoned that, based upon the officer’s experience
    and observations, there was probable cause to arrest Harris. Harris made no
    argument at the hearing about being “tricked” into revealing the gun.
    At trial Officer Thelen repeated his suppression-hearing testimony, and a
    backup officer corroborated Thelen’s version of events. In addition, ATF Special
    Agent Christopher Labno testified about the written statement he obtained from
    Harris. Harris related to Labno that he and Pettis were arrested together and that
    afterward he told Thelen about the gun in one of his blue shoes back at his
    apartment. According to Labno, Harris elaborated that he bought the gun the day
    before for $50 from a woman named Poochie. He explained in some detail his
    knowledge of Poochie’s business and said he hoped prosecutors would give him a
    break for turning in the gun. Labno took notes and drafted a statement for Harris’s
    review; Harris read it, made and initialed changes on both pages, and signed the
    first page. Later that same day, Labno noticed that Harris inadvertently failed to
    sign the second page. He returned to the station and asked Harris to again review
    and sign the statement. Harris complied without objection. Harris’s statement
    includes the following:
    Police officers caught me and my friend at his drug spot . . . and
    because I didn’t want to go to the penitentiary I told Officer Thelen
    about a gun I had at home. I told him I could get a gun if he would help
    me out. I told Officer Thelen that my mom would get him the gun if he
    went to my place at 803 S. California. The gun was in a blue-shoe
    against the wall . . . . [T]he gun I gave the Chicago Police tonight, I had
    bought for $50.00 USC from a girl named “Poochie” . . . . I bought this
    gun strictly for protection. The gun was a .380 semi-automatic
    pistol . . . . Nobody threatened me or promised me anything to make
    this statement, except that my cooperation would be made known to
    the prosecutors and I am making this statement because I want to tell
    the truth in the hope that my help will be taken into consideration in
    regard to my circumstances.
    Labno testified that he told Harris he could not promise him a break in exchange for
    his statement.
    No. 04-3601                                                                      Page 4
    The government also presented unchallenged testimony that the gun was
    manufactured in Spain and therefore traveled in interstate commerce, and Harris
    stipulated that he was a felon.
    Harris did not testify at trial. He called his mother who testified that she
    and Harris moved into their one-room apartment about three weeks before his
    arrest. The previous occupants, she said, had left things behind, including a gun in
    a blue gym shoe. On the morning of his arrest, Ms. Harris told her son about
    finding the gun, and he advised her not to throw it away because children might
    find it. That night, she continued, police officers let themselves into the apartment
    building using her son’s keys, woke her from her sleep, and told her, “[W]e came at
    a gun, . . . if we get this gun, we’ll let them go.” Ms. Harris retrieved the shoe
    containing the gun from the closet and gave it to the officers. She testified that she
    never told Harris where the gun was hidden.
    The day after the jury returned its verdicts, Harris moved for a judgment of
    acquittal. See Fed. R. Crim. P. 29(c). Six days later, he moved for a new trial. See
    Fed. R. Crim. P. 33. The district court denied both motions.
    On appeal Harris abandons his argument that police lacked probable cause to
    arrest him; he now contends that his statements revealing that he possessed a gun
    were made involuntarily due to Officer Thelen’s combined threat to plant evidence
    and false promise that Harris would go free if he produced a gun. See Hadley v.
    Williams, 
    368 F.3d 747
    , 749 (7th Cir. 2004) (noting that extracting confession
    through false promise to set defendant free renders it involuntary). It follows,
    Harris argues, that the gun, as the fruit of his involuntary statements, must be
    suppressed. See Chavez v. Martinez, 
    538 U.S. 760
    , 769 (2003); United States ex
    rel. Hudson v. Cannon, 
    529 F.2d 890
    , 893 (7th Cir. 1976). This contention was not
    presented to the district court.
    When a criminal appellant raises a suppression argument for the first time
    on appeal and there is no indication he intentionally failed to raise it previously, the
    issue is forfeited and subject only to review for plain error. Fed. R. Crim. P. 12(b),
    (e); United States v. Johnson, 
    415 F.3d 728
    , 730 (7th Cir. 2005). In this case, plain
    error review is appropriate because the record gives no indication that Harris
    consciously omitted his voluntariness argument in the district court. A threshold
    argument for establishing plain error, however, is a showing of good cause for failing
    to make a timely motion to suppress, see 
    id. at 730-31
    , and Harris has not offered a
    reason for omitting this new contention from his motion to suppress. That is reason
    enough to reject his voluntariness argument. 
    Id. at 731
    ; United States v.
    Davenport, 
    986 F.2d 1047
    , 1048 (7th Cir. 1993).
    Moreover, Harris presents his voluntariness argument as a credibility
    dispute. He contends that the district court erred when it rejected his account and
    No. 04-3601                                                                      Page 5
    accepted Officer Thelen’s version of how the police learned about the gun. But, even
    if Harris had demonstrated good cause, we will not disturb a district court’s
    credibility determination unless it is completely without foundation. See United
    States v. Huebner, 
    356 F.3d 807
    , 812 (7th Cir. 2004).
    The district court accepted Officer Thelen’s suppression hearing testimony
    that he arrested Harris when he saw Harris engage in three separate drug sales
    with Pettis. The court, in turn, rejected Harris’s testimony that he was innocently
    sitting on his friend’s porch when Thelen handcuffed him for no reason and said the
    police had received a call about a man with gun. Although the district court was not
    asked to make an explicit finding as to the voluntariness of Harris’s statements
    (because Harris waited until now to raise this issue), there is no reason to conclude
    that the court would have believed every other aspect of Thelen’s account of events
    while simultaneously crediting Harris’s testimony that Thelen “tricked” him into
    revealing his gun by threatening to plant evidence and falsely promising leniency.
    The district court did not believe Harris, and that is the answer to his argument.
    Harris also argues that even with the admission of the gun the government’s
    evidence was insufficient to support his conviction. Evidence supporting a
    conviction is sufficient if any rational trier of fact could have found each element of
    the offense beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979); United States v. Kapp, 
    419 F.3d 666
    , 671 (7th Cir. 2005). In reviewing the
    trial evidence we draw all inferences and resolve all factual disputes in favor of the
    verdict. Jackson, 
    443 U.S. at 319
    ; Kapp, 
    419 F.3d at 672
    .
    Conviction under § 922(g)(1) requires proof of (1) knowing possession of a
    firearm (2) in or affecting commerce (3) after a felony conviction. 
    18 U.S.C. § 922
    (g)(1); United States v. Allen, 
    383 F.3d 644
    , 646-47 (7th Cir. 2004). Harris
    only disputes the possession element. He contends, citing his mother’s testimony
    and ignoring the government’s evidence, that he learned about the gun left behind
    by former residents but never exercised control over it. This argument is frivolous.
    Possession may be either actual or constructive, exclusive or joint. United
    States v. Gilbert, 
    391 F.3d 882
    , 886 (7th Cir. 2004). Actual possession exists when
    a person knowingly maintains direct physical control over an object. United States
    v. Lane, 
    267 F.3d 715
    , 717 (7th Cir. 2001). Constructive possession exists when,
    although a person does not have actual possession, he has the power and intent to
    exercise control over an object either directly or through others. United States v.
    Merritt, 
    361 F.3d 1005
    , 1014 (7th Cir. 2004).
    In this case Harris confessed orally and in writing that he bought the gun
    and could get it from the apartment he shared with his mother; police recovered the
    gun from his apartment. We must assume that the jury rejected Rosie Harris’s
    testimony about the source of the gun and accepted the government’s evidence as to
    No. 04-3601                                                                   Page 6
    Harris’s confession. See United States v. Morris, 
    349 F.3d 1009
    , 1011-12, 1014 (7th
    Cir. 2003) (holding that constructive possession was proved where guns were seized
    from defendant’s brother’s house and, in statements to police, defendant said he
    lived with his brother, admitted owning the guns, and described in detail how he
    acquired them); see also United States v. Fujii, 
    301 F.3d 535
    , 541 (7th Cir. 2002)
    (holding that sufficient evidence existed to sustain defendant’s conviction where his
    signed, sworn statement was corroborated by independent, extrinsic evidence).
    Indeed, even Harris admits in his opening brief that “it is true that the evidence
    (namely the affidavit) would suffice to demonstrate constructive possession.”
    AFFIRMED.