U.S. v. Boykins

• Decision Date: 19 November 1993
• Docket Number: Nos. 92-3915,92-3916,92-3917 and 92-4001,s. 92-3915
• Citation: 9 F.3d 1278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derrick D. BOYKINS, Stacy E. Banks, and Percy E. Williams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1278

9 F.3d 1278

UNITED STATES of America, Plaintiff-Appellee, v. Derrick D. BOYKINS, Stacy E. Banks, and Percy E. Williams,

Defendants-Appellants.

Nos. 92-3915, 92-3916, 92-3917 and 92-4001.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 14, 1993.

Decided Nov. 19, 1993.

Cale J. Bradford (argued), Office of the U.S. Atty., Indianapolis, IN, for U.S.

Douglas C. McMorris, Indianapolis, IN, Scott McFarland (argued), Muncie, IN, for Derrick D. Boykins in No. 92-3915.

James B. Mitchell, Jr. (argued), Marquette, MI, for Stacy E. Banks in No. 92-3916.

Scott McFarland (argued), Muncie, IN, for Percy E. Williams, in Nos. 92-3917 and 92-4001.

Before BAUER and KANNE, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

BAUER, Circuit Judge.

Derrick Boykins, Stacy Banks, and Percy Williams were convicted of possession with the intent to distribute cocaine in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1). They were also tried and convicted of using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1), (2). All three appeal their convictions and Williams appeals his sentence. We affirm.

I.

At approximately 4:40 in the afternoon of January 13, 1992, Officer Bruce Wiemer of the Muncie (Indiana) Police Department was in the parking lot of the Vogue Dry Cleaners in Muncie, Indiana. Officer Wiemer was off duty at the time. The sound of rapid gunfire drew Wiemer's attention to the street in front of the dry cleaners. He observed the gunfire coming from the open side door of a maroon Pontiac van moving down the street. Though he could not discern who was firing the gun, Wiemer identified Banks as an occupant in the rear of the van and Williams as an occupant in the middle of the van.

Officer Wiemer followed the van to the Rainbow Lounge which is located approximately half a block from the dry cleaners. The van stopped there and three men, whom Wiemer identified at trial as Banks, Boykins and Williams, got out. At that point Wiemer drove to a nearby pharmacy with the intention of calling the police. Outside the pharmacy, Wiemer saw two policemen in a marked police vehicle, Officers Donnie Garrett and Allen Williams. Wiemer informed them of the events he had just witnessed. Garrett and Williams proceeded to the vicinity of the Rainbow Lounge where they identified the van and began to follow it.

After following the van for about one block and radioing for assistance, the policemen turned on their sirens and flashing lights in an effort to get the driver of the van to pull the vehicle over to the side of the road. The driver, later identified as Russell Wayne Davis, refused to do so and a chase ensued in which Officers Garrett and Williams were joined by Officers Steve Baugh and Jeff Watson.

The pursuit led the officers to Vine Street at which point Davis jumped from the moving van, tossed two plastic bags on the ground and fled. The van continued to roll until it collided against the side of a nearby apartment building where the police arrested the occupants. Davis was never apprehended but Officer Garrett retrieved both bags, one of which contained less than four grams of cocaine and the other of which contained 10.74 grams of cocaine.

Derrick Boykins was seated in the front passenger seat. A pat-down search of Boykins conducted by Officer Williams revealed a set of hand-held measuring scales and cash in the amount of $396.58. Seated in the middle passenger seat was Percy Williams who, during the course of his arrest, attempted to reach for something in his pants. A search of his person uncovered a .22 caliber gun, containing four live rounds of ammunition, and four rock-like quantities of cocaine weighing approximately .39 gram. Stacy Banks was seated in the rear passenger seat. The police searched him and discovered two shotgun shells. He later admitted to owning a shotgun found in the rear of the van.

After the three suspects were in custody, the police searched the interior of the van. On the floor between the driver seat and the front passenger seat, the police found a loaded .38 caliber revolver. In front of the middle row of passenger seats, the police found a recently fired semi-automatic "cobra" handgun and a quantity of cocaine which weighed less than four grams. The search of the van also uncovered the loaded shotgun which Banks admitted owning. All items discovered during the search of the appellants and the van were retained by Officer Cox who, later the same day, turned them over to Officer Winkle of the Muncie Police Department. Officer Garrett delivered the cocaine discarded by Davis to Officer Winkle as well.

Boykins, Banks, and Williams were each indicted on February 11, 1992 for possession with the intent to distribute cocaine in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1) (Count I) and for using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1), (2) (Count II). On September 10, 1992, a jury found Banks, Boykins and Williams guilty as charged on both counts in the indictment.

At the sentencing hearing, the court sentenced Boykins and Banks to 60 months imprisonment followed by four years supervised release on the first count and 60 months imprisonment followed by three years supervised release on the second count. Williams was sentenced to 262 months imprisonment followed by five years supervised release on the first count and 60 months imprisonment followed by three years supervised release on the second count.

II.

Boykins, Banks, and Williams raise several issues on appeal, some jointly and some individually. None of their contentions merits reversal.

A. Sufficiency of the Evidence

Boykins and Banks argue that their convictions under Count I of the indictment should be reversed by this court because the evidence offered by the government at trial was insufficient to support a conviction. Boykins seeks a reversal of his conviction under Count II of the indictment on identical grounds. The standard of review in a sufficiency challenge is well-established. We review the evidence in a light most favorable to the government to ascertain whether "any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Tanner, 941 F.2d 574, 586 (7th Cir.1991). Neither Banks nor Boykins has met this burden.

1. Possession with the Intent to Distribute Illegal Narcotics

To obtain a conviction for possession of cocaine with the intent to distribute, the government must prove (1) the defendant knowingly or intentionally possessed cocaine, (2) the defendant possessed the cocaine with the intent to distribute it, and (3) the defendant knew cocaine was a controlled substance. United States v. Olson, 978 F.2d 1472, 1479 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). Boykins and Banks testified that they were not in the van when the gunshots were fired and that they knew nothing about the cocaine. On appeal, they contend that the evidence failed to establish beyond a reasonable doubt that they knowingly or intentionally possessed cocaine. The government defends the verdict by using theories of constructive possession and aiding and abetting.

The theory of constructive possession requires the government to show that the defendant had "dominion and control" over a particular object. United States v. Shackleford, 738 F.2d 776, 784-85 (7th Cir.1984). The government's position is that the occupants of the van were in essence a drug trafficking enterprise with each person playing a specialized role in the venture. Banks who was in possession of a shotgun, was in the van to provide security in case anything went wrong. Boykins, seated in the front passenger seat with measuring scales and an abundant amount of cash on his person, was in charge of weighing the cocaine and then selling it. According to the government then, although neither Banks nor Boykins was found with cocaine on their respective persons, their role in the enterprise was sufficient to support a finding of constructive possession.

Boykins and Banks argue that the possession of items that are commonly associated with drug trafficking, in this case firearms and the scale, is only relevant to the issue of distribution and has no bearing on the question of possession. Disregarding the presence of the firearms and the scales, they conclude that their convictions for possession were based solely on physical proximity and association, factors which have been deemed insufficient to sustain a finding of possession. See United States v. McKnight, 953 F.2d 898 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2975, 119 L.Ed.2d 594 (1992) (proximity); United States v. White, 660 F.2d 1178 (7th Cir.1981) (proximity); United States v. Manzella, 791 F.2d 1263 (7th Cir.1986) (association). The cases cited in support of this premise do not, however, support such a limited probative value for weapons found on the scene along with illegal narcotics. United States v. Rush, 890 F.2d 45 (7th Cir.1989); United States v. Dunn, 846 F.2d 761 (D.C.Cir.1988).

In Rush, the defendant and an acquaintance were walking toward the defendant's parked vehicle when they were stopped by the police. The acquaintance consented to a search of his locked suitcase and gave the police his keys. The search revealed several packets of heroin. Rush, 890 F.2d at 46. Later, when searching the defendant's car, the police discovered a loaded pistol. Id. Though the narcotics were never actually in the defendant's car and there was no evidence of actual knowledge on the defendant's part, we held that the presence of a firearm in the defendant's parked vehicle was sufficient to support an inference that the weapon was in the car for the purpose of protecting the illegal cargo. Id. at 49. We added that the weapon was relevant...