United States v. Gevedon, William R.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1897
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM R. GEVEDON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. IP 96-0139-CR-T/F--John D. Tinder, Judge.
Argued January 21, 2000--Decided May 25, 2000
Before Bauer, Ripple and Kanne, Circuit
Judges.
Bauer, Circuit Judge. William R. Gevedon
("William") was found guilty by a jury in
the Southern District of Indiana of seven
counts of federal firearms violations. He
was sentenced to 115 months imprisonment,
followed by a three year term of
supervised release, and ordered to pay a
$7,000.00 fine and a $350.00 special
assessment. He appeals, claiming that his
estranged wife who no longer lived in the
marital home did not have the actual or
apparent authority to consent to a search
of the home and thus the District Court
erred in denying his motions to suppress
the weapons taken from his house. He also
appeals the District Court’s finding that
he was a "prohibited person" under the
sentencing guidelines and the resulting
two level increase in his base offense
level. We affirm the District Court.
I. BACKGROUND
Jackie Kirkwood Gevedon ("Jackie") and
William Gevedon married in 1982. Shortly
afterward they bought a home at 2385 East
U.S. 40,/1 Greenfield, Indiana. Both
Jackie’s and William’s names were on the
deed. William ran a motor vehicle repair
business from the detached two-car garage
behind the house. It was in the attic of
this garage/shop that the weapons that
are the subject of this case were found.
Jackie assisted the business by doing
some of the book work, errands, calling
customers, and getting parts. Most of
Jackie’s work was done from the house,
but she did occasionally go to the
garage/shop to conduct business or take
food and snacks out to William and the
others. Although William would later
dispute this, Jackie had full access to
the garage/shop.
Trouble developed in the marriage and in
June, 1995 Jackie moved out, leaving most
of her belongings behind. One month later
she filed for divorce. Her return to the
marital home in July to collect some of
her clothing was without incident, but
the animosity between Jackie and William
grew and by October, when Jackie went
back to the house again, she found that
the locks had been changed, forcing her
to break into the house and the
garage/shop.
The record provides little information
about what happened during the next three
months, other than the closing of
William’s auto repair business in late
1995. William Gevedon also disappeared,
fleeing the state law charges that were
pending against him. His whereabouts were
unknown.
Sheriff’s deputies, armed with a search
warrant, forced their way into the home
and garage on January 6, 1996 and
searched them. The house was vacant. The
deputies called Jackie, ostensibly to
check on her safety. William claims that
this was just a ploy to gain her
cooperation for the searches yet to come.
A few weeks after the warrant search,
Jackie, accompanied by members of the
Sheriff’s Department, returned to the
house to secure it. She had new locks put
on both the house and the garage, had a
door to the house replaced and a door to
the garage/shop boarded up. While there,
the police conducted what would be the
first of three searches consented to by
Jackie. The police told Jackie the
searches were necessary because "sources"
informed them that William was in
possession of illegal firearms. Weapons
were found in the house, but not removed.
On January 25, 1996, Jackie obtained a
temporary restraining order from the
Hancock Superior Court in her divorce
proceedings, restraining William from
coming on or about "the parties real
estate at 2385 East Main Street in
Greenfield, Indiana 46140." The order
also granted Jackie "sole possession of
said real estate until further Order of
[the] Court." That order was renewed on
February 8, 1996 and William was again
restrained from coming onto the couples’
real estate at 2385 East Main Street and
Jackie was again granted sole possession
of the property.
The third search, conducted on February
6, 1996, resulted in the discovery of the
weapons in the attic of the garage/ shop.
It is this search that William contests
since the weapons found in the attic
constitute the bulk of the charges
against him. Prior to the search, the
deputies called Jackie, informed her of
the need to search the premises again and
arranged for her to meet them at the
house. Once there, Jackie said she
thought there were guns somewhere in the
garage/shop and she wanted it searched
until they were found. She also asked
that they be removed. Jackie volunteered
that William had once told her that if he
had any problems or had to hide weapons,
one place he would put them was the
attic. Jackie then signed a "Form to
Consent to Search," remained on the
premises during the search and watched as
the guns were removed from the garage
attic.
Based on the weapons seized from his
home and garage, William was charged with
seven counts of federal firearms
violations. Counts 1 through 3 were for
knowingly receiving and possessing
unregistered silencers that had no serial
number, in violation of 26 U.S.C.
sec.sec. 5861(d) and 5871. Counts 4
though 6 were for knowingly receiving and
possessing two machine guns and one
submachine gun, two of which had no
serial numbers, in violation of 18 U.S.C.
sec.sec. 922(o) and 924(a)(2). Count 7
was for knowingly receiving and
possessing an unregistered grenade
launcher that had no serial number, in
violation of 26 U.S.C. sec.sec. 5861(d)
and 5871.
William Gevedon, sometimes pro se,
sometimes through counsel, filed a
multitude of pre-trial motions, including
six motions to suppress. Three of the
suppression motions denied by the
District Court were related to the
searches of the residence and garage.
These motions are the focus of William’s
appeal.
After a four day trial, William was
convicted on all seven counts. The
Presentence Report ("PSR") recommended
that William’s base offense level be 20
(instead of 18) because William possessed
the silencers and machine gun while he
was a fugitive and subject to a charge
punishable by imprisonment for more than
one year. After hearing argument, the
District Court found that William was a
"prohibited person" under U.S.S.G.
sec.2K2.1(a)(4), both because he had been
a fugitive in constructive possession of
the prohibited weapons, and because he
possessed the weapons while under a
charge punishable by imprisonment of more
than one year. The court also departed
upward two levels on the basis that
William’s criminal history was
understated by his criminal history
score, and added enhancements for
obstruction of justice because William
was a fugitive, because his offense
involved 5 - 7 weapons, because at least
one of the weapons was a destructive
device, and because at least one of the
machine guns had an obliterated serial
number. The total offense level was 28.
William was sentenced to 115 months
imprisonment, 3 years supervised release,
a fine of $7,000 and a special assessment
of $350.
II. DISCUSSION
A. Motions To Suppress
The District Court denied all of
William’s motions to suppress the
weapons, finding that Jackie Gevedon had
both actual and apparent authority to
consent to the searches and that her
consent was voluntary. The first two of
those motions were denied on the briefs.
A suppression hearing was, however, held
before the court ruled on the third
motion. We review the District Court’s
findings of fact for clear error, while
reviewing conclusions of law and mixed
questions of law and fact de novo. United
States v. Duguay, 93 F.3d 346, 349-50
(7th Cir. 1996) (citation omitted). The
question of whether Jackie had actual or
apparent authority to consent to the
searches is a mixed question of law and
fact and is therefore reviewed de novo.
United States v. Ladell, 127 F.3d 622,
624 (7th Cir. 1997) (citation omitted).
William Gevedon argues on appeal that
his estranged wife had neither the actual
nor the apparent authority to consent to
the weapons searches. The District Court
found that she had both. Because we find
that Jackie Gevedon had actual authority
to consent to the search of the home and
garage/shop, we do not address the
question of whether she also had apparent
authority./2
The Fourth Amendment guarantees citizens
the right to be free from unreasonable
search and seizure. See Katz v. United
States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). William complains
that his rights were violated by the
warrantless search of his property and
the seizure of his weapons. Law
enforcement officers may, however,
legally search without a warrant if they
obtain voluntary consent from the person
whose property is to be
searched,Schneckloth v. Bustamonte, 412
U.S. 218, 222, 93 S.Ct. 2041, 2045, 36
L.Ed.2d 854 (1973), or from someone with
actual or apparent authority over the
premises. United States v. Aghedo, 159
F.3d 308, 310 (7th Cir. 1998); United
States v. Saadeh, 61 F.3d 510, 517 (7th
Cir. 1995).
In a case strikingly similar to this
one, we examined the issue of whether a
wife has the authority to consent to a
search of the martial property, including
portions that she does not regularly
enter or occupy, and concluded that she
does. United States v. Duran, 957 F.2d
499, 505 (7th Cir. 1992) ("a spouse
presumptively has authority to consent to
a search of all areas of the homestead").
However, we tempered that rule with a
caveat that "the nonconsenting spouse may
rebut this presumption only by showing
that the consenting spouse was denied
access to the particular area searched."
Id. William Gevedon seizes upon this nar
row exception, as he must if he is to
prevail, and tries to squeeze his cause
into it by claiming that he denied Jackie
access to the garage attic where the
weapons were found. His attempt is in
vain.
The opening to the garage attic was
covered by a square access panel made of
sheet metal. It was held in place by four
sheet metal screws, one in each corner.
William claims that because a special
socket was required to unscrew the
screws, and that Jackie was unaware of
where he kept it, she was denied access
to the attic. William supplements this by
noting that Jackie never went into the
attic and thus contends she never
occupied it or had the common authority
over it to consent to its search.
William’s arguments are unpersuasive and
ignore other evidence gleaned during the
suppression hearing, namely that William
never told Jackie that she could not go
into the attic, that Jackie did go into
the attic once to look around, and that
the "special screws" could have been
removed with other devices such as pliers
or a wrench if one did not mind stripping
the screw heads.
The clear and simple fact is that Jackie
was still William’s legal wife at the
time she consented to the searches.
Presumptively, then, she had the actual
authority necessary for a valid consent.
Duran, 957 F.2d at 505. William has not
rebutted this presumption. We thus find
that Jackie had actual authority to
consent to the search of the house and
garage/shop and that the search and
seizure by the authorities pursuant to
that consent was valid.
The District Court was also persuaded,
as are we, by the fact that Jackie had a
court order giving her sole possession of
the Gevedons’ real estate at 2385 East
Main Street. William, however, points out
that in 1993 the garage was given a
separate address. Because of the
inconsistency between the address
numbering system of the City of
Greenfield and the County of Hancock, and
for reasons related to 911 emergency
services, the Hancock County Planning
Commission assigned the Gevedon property
two addresses. The house was designated
2385 East Main Street, and the
garage/shop was designated 2387 East Main
Street. William argues that the court
order gave Jackie, as its literal
language suggests, control over only the
house, not the garage/shop.
To read the order as William suggests is
to pervert its meaning and its intention.
Indeed, the District Court characterized
the argument as "much ado about nothing."
Absolutely nothing changed when the
garage was given a separate address. The
property was not partitioned, sold, or
assigned. Both the house and the garage
continued to be accessed by one, common
driveway. And Jackie’s name was still on
the deed for the entire property. We thus
agree with the District Court that the
divorce court’s order was meant to give
Jackie sole possession of and control
over the entire homestead, an indication
of actual authority.
We conclude that the District Court did
not err in finding that Jackie had the
requisite authority to consent to the
search. Jackie was still, at the time of
the search, William’s wife. The fact that
Jackie was estranged from William gives
us no pause since she had a court order
giving her exclusive control over the
property. The District Court
properlyrecognized these facts and
applied the case law to reach the correct
result. We thus affirm its denials of
William’s motions to suppress the
weapons.
B. Finding That William Was A
"Prohibited Person"
At William’s sentencing, the District
Court found a base offense level of 20,
pursuant to U.S.S.G.
sec.2K2.1(a)(4)(B)(i) because William was
a "prohibited person" in possession of
illegal firearms. Application Note 6 to
that guideline defines a "prohibited
person" as anyone who is under indictment
for a crime punishable by imprisonment
for more than one year, or is a fugitive
from justice. The District Court found
that William qualified as a "prohibited
person" under both these criteria. We
review the District Court’s
interpretation of the scope of the
guidelines de novo. United States v.
Yoon, 128 F.3d 515, 528 (7th Cir. 1997)
(citation omitted). The court’s factual
findings are reviewed for clear error.
Id.William argues that he is not a
"prohibited person" within the meaning of
the guidelines because (1) he did not
possess the weapons while he was a
fugitive, and (2) because he was not
under an "indictment" for a federal crime
punishable by imprisonment for more than
one year. We reject each of these
arguments and discuss them in turn.
First, although William does not concede
he was a fugitive, there can be no doubt
that he was. He disappeared from the
marital home in late 1995 or early 1996,
while out of prison awaiting trial on
state charges of criminal confinement,
battery, criminal recklessness and auto
theft. His whereabouts were unknown to
Jackie, the law enforcement officers, and
others. He did contact his daughter
during this time, but often to ask about
the status of the law enforcement
interest in him or their efforts to find
him. Once he even asked her to live at
the house for him, evidencing his intent
not to return for the near future. There
is no doubt, then, that William was a
fugitive. And the District Court so
found.
The question, then, is whether he
possessed the weapons while he was a
fugitive. William argues that he did not
because he was a fugitive, away from
home, while the weapons remained at all
times in the attic of his garage. It is
true that William was not in actual
possession of the weapons, but that does
not end our inquiry because possession
may be either actual or constructive.
"[P]ossession . . . can be established
despite the fact that the firearm was not
in the immediate possession or control of
the defendant." United States v. Kitchen,
57 F.3d 516, 520 (7th Cir. 1995).
"Constructive possession exists when a
person does not have actual possession
but instead knowingly has the power and
the intention at a given time to exercise
dominion and control over an object,
either directly or through others."
United States v. Garrett, 903 F.2d 1105,
1110 (7th Cir. 1990), cert. denied, 498
U.S. 905, 111 S.Ct. 272, 112 L.Ed. 2d 227(1990).
In Kitchen, we found that the defendant
constructively possessed handguns,
despite the fact that he was incarcerated
at the time the agents seized the
handguns from his house. 57 F.3d at 520-
21. Applying our rule that
"[c]onstructive possession can be
established by showing that the firearm
was seized at the defendant’s residence,"
Id. at 521 (citation omitted), to this
case, we find that William constructively
possessed the weapons even though he was
no longer living at the residence at the
time they were taken from the garage
attic. The District Court heard ample
testimony that, through a friend, William
was exercising control over the weapons
during his absence. Indeed, while William
was a fugitive, he called Richard Couch,
a friend, and asked him to go to the
property to secure it and prevent others’
access by backing up a wrecker against
the front door and a case loader against
the back door. Coupling this evidence
with William’s earlier arguments that he
was in control of the property and doing
everything within his power to deny
Jackie access to it, the District Court
held that William was in constructive
possession of the weapons while a
fugitive, making him a "prohibited
person" within the sentencing guidelines.
We agree with the District Court’s
finding and affirm its ruling.
William’s final argument is that the
District Court erred in finding him a
"prohibited person" on the alternate
ground that he was in possession of
illegal firearms while he was "under
indictment" for a "crime punishable
byimprisonment for more than one year"
because he was not "under indictment."
The state charges against him were filed
by information. He asks us to believe
that one who is charged by information
instead of indictment is not a
"prohibited person" because Application
Note 6 specifically states "indictment"
and omits "information." Again, we
believe that his interpretation is a
perversion of the meaning and intention
of the sentencing guidelines. We are not
alone in our belief. The Second, Eighth
and Tenth Circuits have all held that the
term "under indictment" includes a person
charged by information. See United States
v. Shepardson, 196 F.3d 306, 309-310 (2nd
Cir. 1999); Schook v. United States, 337
F.2d 563, 567-68 (8th Cir. 1964); United
States v. Fillman, 162 F.3d 1055, 1057
(10th Cir. 1998).
This is a matter of statutory
construction and common sense. William
was convicted under 18 U.S.C. sec.922,
among others. That statute defines
"indictment" to include "indictment or
information." 18 U.S.C. sec.921(a)(14).
Sentencing under the statute should be
consistent with the statute and thus that
definition must logically extend to
U.S.S.G. sec.2K2.1 since it is the
guideline for sentencing violations of
sec.922. Furthermore, as the District
Court remarked, to hold otherwise would
arbitrarily exclude charges by those
states, such as Indiana, that permit
charging by information. We do not
believe this would further Congress’
intent to prohibit the possession of
firearms by those facing other criminal
charges. Thus, we hold that the term
"prohibited person" as used in U.S.S.G.
sec.2K2.1 covers those persons charged by
information, including William Gevedon.
III. CONCLUSION
For the foregoing reasons, the
conviction and sentence of the defendant
are affirmed.
AFFIRMED.
/1 Sometime thereafter East U.S. 40 became known as
East Main Street.
/2 Likewise, we do not address any arguments made by
William that Jackie’s consent was somehow invol-
untary because the sheriff’s deputies were kind
to or solicitous of her because they wanted to
"avoid the warrant requirement." We believe that
argument to be wholly without merit. We find
nothing unusual or illegal about the officers’
preference to conducting a search by consent over
a search by warrant in this case.