U.S. v. Barker

• Decision Date: 30 June 1994
• Docket Number: No. 93-2765,93-2765
• Citation: 27 F.3d 1287
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome BARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1287

27 F.3d 1287

UNITED STATES of America, Plaintiff-Appellee, v. Jerome BARKER, Defendant-Appellant.

No. 93-2765.

United States Court of Appeals, Seventh Circuit.

Argued April 19, 1994.

Decided June 30, 1994.

Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Philip P. Simon, Asst. U.S. Atty., Office of the U.S. Atty., Dyer, IN, for plaintiff-appellee.

Michael W. Bosch, Bamber, Bosch & Banasiak, Hammond, IN (argued), for defendant-appellant.

Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

On October 22, 1992, a grand jury returned an indictment charging Jerome Barker with possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g)(1). Prior to trial the defendant filed a motion to suppress evidence concerning his arrest for possession of a firearm, arguing that the handgun was seized pursuant to an illegal search (protective sweep), and the court denied the motion. At trial, the defendant renewed the motion to suppress the evidence (handgun) and again the court denied the motion. Subsequently a jury found Barker guilty, and the district judge sentenced the defendant to a term of fifty-seven months' imprisonment, three years of supervised release, and imposed a fine of $7,500 and a special assessment of $50. We affirm.

FACTS

At trial Special Agent Catherine Newby of the United States Bureau of Alcohol, Tobacco and Firearms testified that in 1991 she was assigned to investigate the drug dealings of David Abrams, the defendant's brother. ¹ As part of her investigation, Special Agent Newby purchased drugs on four occasions from Abrams at Barker's and Abrams's residence in Gary, Indiana. Newby testified that the first transaction occurred on February 12, 1991. After knocking on the door, Barker unlocked the door and allowed Newby to Newby testified that the second drug buy occurred on April 4, 1991. After allowing Newby to enter, Barker "seated himself on the couch where he continuously looked out the window, you know, when a car came by, watching out[.]" Abrams made several phone calls in the agent's presence and arranged for a third person to deliver coke to the residence in order that Abrams could sell it to Agent Newby. Newby observed a handgun lying on the couch, and when the third party entered the house, Barker moved the weapon from the couch to a table to give the visitor a seat on the couch. Abrams sold $50.00 worth of cocaine to Newby.

enter. While Officer Newby purchased $25.00 worth of cocaine from Abrams, Barker sat in a chair nearby, facing the door, and kept one of his hands behind his back, as if to be holding a weapon. However, Agent Newby stated that she did not see a weapon during the first transaction.

The third transaction occurred on June 20, 1991. Newby testified that when she knocked on the door an unidentified woman answered. Abrams subsequently directed the woman to retrieve the cocaine from another area of the house, and after purchasing the cocaine, Newby departed. The final buy was on June 27, 1991. On this occasion, Abrams directed another woman (unidentified) to secure the cocaine. The woman left the house, returned a short time later, and delivered the drugs to Abrams, who in turn made the $25 sale to Newby.

Special Agent Newby testified that following these four drug buys, she prepared a report and submitted it to the Lake County, Indiana, Prosecutor's Office, which issued a warrant for Abrams's arrest. The arrest warrant was executed on September 9, 1992, by officers from the Lake County, Indiana, Sheriff's Department and the ATF. One of the officers executing the warrant was Henry Woronka. Woronka testified that on September 9, 1992, he and his fellow officers approached the Abrams and Barker house, knocked on the door, and announced they were police officers with a warrant for Abrams's arrest. As Barker opened the door, the officers directed Barker to lie on the floor and ordered Abrams to remain on the couch because Agent Newby had informed them that weapons had previously been on the premises. Based on this knowledge, Officer Woronka upon entering the house initiated a protective sweep to search for weapons and determine whether anyone else was in the house. In fact, Abrams and Barker were in the living room, in addition to an unidentified woman and two children in one of the residence's two bedrooms. As Officer Woronka left the second bedroom, he noticed a holstered .357 Magnum lying on a shelf in plain view. Woronka testified that he seized the loaded weapon, observed that it was loaded, completed the protective sweep, returned to the area where Barker and Abrams were, and handed the weapon over to Special ATF Agent Daniel O'Kelly.

Agent O'Kelly testified that after receiving the gun from Officer Woronka, he inquired of Barker if the second bedroom was his, and the defendant responded in the affirmative. O'Kelly questioned Barker whether the gun was his, and Barker stated it was. Agent Newby testified that she witnessed and heard the interrogation and Barker's responses. Agent O'Kelly then testified that he asked Barker whether Barker had ever been in prison, and Barker replied that he had been in jail for four years. O'Kelly asked him what he had been in prison for, and Barker replied, "armed robbery." Special Agent O'Kelly stated that following this admission, "[I] realized I had probable cause to believe that a felony [under 18 U.S.C. Sec. 922(g)(1) ] had been committed." O'Kelly read Barker his Miranda rights and asked the defendant if he understood his rights. O'Kelly testified that Barker replied that he understood his rights. O'Kelly then arrested Barker for being a felon in possession of a firearm (Barker had been convicted of armed robbery on June 9, 1977) and asked Barker where he got the weapon. According to O'Kelly's testimony, Barker shrugged his shoulders and said, "I just got it," and added that he had it for about a year. In addition to the firearm found in Barker's bedroom, the police also discovered "a small caliber semi-automatic pistol" underneath the cushion upon which Abrams was sitting, as well Prior to trial, Barker filed a motion to suppress the handgun found in his bedroom, ² arguing that Officer Woronka's illegal search (protective sweep) of his bedroom was invalid under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), because the police did not have a reasonable belief that the house contained an individual who posed a danger. Initially the district judge noted that "[t]he police conducted the search immediately upon their arrival, and they did nothing more than ensure that no one else was present in the home." The court denied the motion to suppress, finding that "the police had made purchases of cocaine on four different occasions at defendant's home, during which time the police observed weapons and defendant acting in a suspiciously dangerous manner. Therefore, the police were reasonable in believing that defendant's home harbored dangerous persons and weapons on the day they arrived to execute Abrams'[s] arrest."

as "an open camera bag with some ammunition in it."

Following the denial of his pre-trial motion to suppress the handgun found in his bedroom, Barker was tried on the charge of being a felon in possession of a handgun. During trial he renewed his motion to suppress the evidence and once again the court again denied the motion, stating "the same ruling that I issued previously stands." On direct examination, the defendant admitted that he had told Agent O'Kelly that he lived in the bedroom in which the gun was found, but denied telling the agent that the weapon found in his bedroom was his. Barker also denied responding to O'Kelly's question about how long he had owned it, and claimed that Officers O'Kelly and Newby were lying.

On cross-examination, Barker was asked if he had any idea how the gun got in his bedroom. He replied, "No, I don't. Maybe one of the officers brought it, I don't know." In response to the Assistant United States Attorney's inquiry on cross-examination as to whether Barker had ever seen the gun prior to trial, Barker responded, "No[,]" but when asked by the prosecutor whether the gun admitted at trial was the same gun that was found in his bedroom, the defendant changed his story and stated, "Yeah. That's the same gun." The prosecution then asked Barker whether he had ever seen the gun in his bedroom before, and Barker responded, "No." Not surprisingly, the jury disbelieved Barker's contradictory testimony and returned a verdict of guilty.

Barker's pre-sentence report recommended his base offense level be increased two levels under U.S.S.G. Sec. 3C1.1 (obstruction of justice) for perjury. Perjury is a "witness's false testimony concern[ing] a material matter 'designed to substantially affect the outcome of the case ...'." United States v. Parker, 25 F.3d 442, 448 (7th Cir.1994) (citing United States v. Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993)). At his sentencing hearing, Barker argued that the jury could have found him guilty without disbelieving his testimony, and further that he believed that his demeanor on the stand demonstrated that he was answering the questions honestly. The court noted that

"[t]he Defendant chose to take the stand and tell a story testifying that he never made the statement regarding ownership of the firearm as testified to by the law enforcement officers.... Based upon this Court's consideration of the location of the firearm in the Defendant's bedroom, the Defendant's testimony, ... in conjunction with the testimony of the two law enforcement officers, the Court concludes that this Defendant lied in his testimony at trial with the purpose of misleading the jury."

Based on the defendant's perjured testimony, the court increased Barker's base offense level two levels (to twenty-two) and with a Criminal History Category of II, determined that Barker faced a...