U.S. v. Chrismon, s. 90-1824

• Decision Date: 29 June 1992
• Docket Number: Nos. 90-1824,90-1863 and 90-1915,s. 90-1824
• Citation: 965 F.2d 1465
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric CHRISMON, Andrew Poe, and Baron Jackson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1465

965 F.2d 1465

UNITED STATES of America, Plaintiff-Appellee, v. Eric CHRISMON, Andrew Poe, and Baron Jackson, Defendants-Appellants.

Nos. 90-1824, 90-1863 and 90-1915.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1992.

Decided June 29, 1992.

Joel Merkel, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Crim. Div., Fairview Heights, Ill., for U.S.

Robert A. Handelsman (argued), Chicago, Ill., for Chrismon.

David M. Fahrenkamp (argued), Edwardsville, Ill., for Poe.

Edward L. Adelman (argued), Dunham, Boman & Leskera, East St. Louis, Ill., for Jackson.

Before CUMMINGS, POSNER, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Defendants Eric Chrismon, Andrew Poe, and Baron Jackson were arrested following

                a Drug Enforcement Administration (DEA) raid of a mobile home suspected to be a "drug house."   They were each indicted on three counts:  possession with intent to distribute marijuana;  conspiracy to distribute and to possess with intent to distribute marijuana;  and using and carrying a firearm during and in relation to a drug trafficking crime.   A jury found Mr. Chrismon and Mr. Poe not guilty on count one, but guilty on counts two and three.   The jury found Mr. Jackson guilty on all three counts.   All three men appeal to this court to overturn their convictions.   For the following reasons, we affirm
                

I BACKGROUND

A. Facts

On March 16, 1988, in Brooklyn, Illinois, DEA special agents, assisted by Illinois State Police officers and a special agent of the Bureau of Alcohol, Tobacco, and Firearms, executed a search warrant at a mobile home known to the DEA for marijuana sales. The front and sides of the trailer were protected by a six-foot-high chain link fence and two guard dogs: a German shepherd and a Doberman pinscher. There were iron bars on all of the windows and doors. On the back side of the trailer there was a TV monitoring camera, overhead lights, a mail slot, and a sign that read "Open all night Friday and Saturday." As the agents approached the front door, the Doberman pinscher charged the agents, and one of the DEA agents shot it. At the same time, an Illinois State Police officer ran to secure the back of the trailer. This officer saw a man--later identified as Cardell McPherson--standing outside the back of the trailer putting something small into his pocket. McPherson was apprehended and taken to the front of the trailer where he was searched. The search revealed two small manila envelopes of marijuana.

After knocking and announcing that they were police and that they had a warrant, the agents forced the door open with a battering ram and entered. DEA Agent Donald Mendrala was the first to enter the trailer. He saw Mr. Jackson seated on a couch holding a .38 caliber revolver, leveled at the doorway. The gun turned out to be loaded. Agent Mendrala stepped back and ordered Mr. Jackson to drop the gun. After Agent Mendrala repeated this command, Mr. Jackson dropped the gun. Agent Mendrala and Agent Dean Duke then forced Mr. Jackson to the ground and handcuffed him. According to Mr. Jackson, the agents beat him and kicked him in the process. The agents then proceeded down a small hallway to the rear of the trailer. Agent Mendrala saw Mr. Chrismon and Mr. Poe at the end of the hallway and ordered them to a prone position. Agent Mendrala and Agent Dennis Wichern briefly searched Mr. Chrismon and Mr. Poe and found that neither man was armed, but that Mr. Chrismon had $500 in his front pocket. Mr. Chrismon and Mr. Poe were handcuffed, and all three suspects were moved outside.

The agents then thoroughly searched the trailer. In the living room, they found a triple-beam scale, two boxes of small (2 1/2" X 4 1/2") manila envelopes, a police scanner, and a piece of paper with several police frequencies scribbled on it. In the bedroom, they discovered a TV monitor which was turned on and showed a view of the rear sidewalk. Also in the bedroom were a .357 magnum caliber revolver, a .38 caliber revolver in a holster on top of a twenty-dollar bill, a 12-gauge shotgun, and two large plastic bags filled with approximately 120 small manila envelopes containing what later proved to be marijuana. In the kitchen area was a sign that read "Please help to keep clean. Put up your [things]. Clean the back room after your shift. (signed) Paul. P.S. Or else one week off." There were two vials of prescription drugs in a kitchen cabinet, both of which were dated 1/26/88, still contained pills, and bore the name Andrew Poe. The trailer was generally unkempt. There were no clothes stored in the closets, no towels or toiletries in the bathroom, very little food in the kitchen, and no beds or mattresses in the bedroom. The only pieces of furniture in the trailer were two sofas, a weight bench, and a big-screen color television set.

                One of the windows in the back of the trailer had been converted to a one-way mirror, below which was a mail slot.   The rest of the windows were covered with drapes or blankets
                

Mr. Jackson, Mr. Poe, and Mr. Chrismon were taken to the Illinois Division of Criminal Investigation post. After they were given Miranda warnings, Mr. Poe and Mr. Jackson volunteered statements. According to DEA Agent Wichern, "Mr. Poe stated that he had been hired by Jackson to clean up the interior and exterior of the trailer, that no one lived at the trailer, the trailer was used exclusively for selling marijuana, that Jackson and Chrismon operated the trailer and that he owned the doberman pincer canine outside." Tr.III at 119.

Agent Wichern later questioned Mr. Jackson, who responded to the statement "you guys were running a 7-Eleven for marijuana at the trailer" by indicating that they were in fact open from 11:00 to 11:00. When asked how much they charged for the little envelopes of marijuana, Mr. Jackson said that they were sold for $10 each. Tr.II at 60.

B. District Court Proceedings

On October 20, 1988, a federal grand jury indicted Mr. Chrismon, Mr. Poe, and Mr. Jackson each on three counts: possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846; and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). All three men pleaded not guilty and were scheduled for a joint trial. On January 26, 1990, the jury found Mr. Jackson guilty on all three counts, and found Mr. Chrismon and Mr. Poe guilty on counts two and three. On April 10, the district court entered final judgment against the defendants. Each separately filed timely notices of appeal.

II ANALYSIS

We shall address the contentions of each appellant in turn, except for the overlapping appeal of the district court's refusal to instruct on a lesser included offense, which will be treated separately.

A. Baron Jackson (No. 90-1915)

1. Bruton challenge

Before trial, Mr. Jackson filed a motion in limine, seeking to prevent the government from introducing any of Mr. Poe's statements that incriminated Mr. Jackson. While the court denied the motion, it did so on the understanding that the prosecution had volunteered to redact Mr. Poe's statements to exclude any reference to Mr. Jackson. R.119 at 2. Mr. Jackson renewed his concern before trial, and the government reiterated that it would not introduce any reference by Mr. Poe to Mr. Jackson:

[AUSA]: .... The report of the statement was he said he was hired to clean up the trailer inside and outside by Jackson. We're going to just put in that he was hired to clean up that trailer, period.

. . . . .

THE COURT: I am going to allow that. Of course, you are not going to mention Jackson's name.... You cannot elicit, and your witness who testifies about that must be instructed that he may not refer to who gave him the orders or directions to do the cleaning and not even by implication, but that he was instructed to clean up.

Tr.I at 4-5. Nevertheless, on the first day of trial, DEA Agent Mendrala testified that Mr. Poe said he was hired by Mr. Jackson. Defense counsel moved for a mistrial, but the court granted only a motion to strike. Mr. Poe later took the witness stand. He testified that Mr. Jackson hired him to clean the inside and outside of the trailer. Tr.III at 73-74. On cross-examination by the government, Mr. Poe reiterated that he had been hired by Mr. Jackson to clean up the trailer. Tr.III at 102. Mr. Jackson was offered the opportunity to cross-examine Mr. Poe, but he declined. Tr.III at 110.

In Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476 (1968), the Supreme Court held that, when two co-defendants, Mr. A and Mr. B, are tried together, if Mr. A does not testify, then the government cannot introduce into evidence at trial any extra-judicial statement by Mr. A that inculpates Mr. B. To do so would violate Mr. B's right to cross-examine as guaranteed by the Confrontation Clause of the Sixth Amendment. This problem arises when the government obtains the confession of a co-defendant who later exercises his Fifth Amendment right not to testify at the joint trial.

In this case, Agent Wichern testified to Mr. Poe's statement incriminating his co-defendant, Mr. Jackson. Standing alone, this situation would implicate the Bruton analytical model. However, Mr. Poe also testified and repeated Mr. Jackson's statement in his testimony. Mr. Poe was available for cross-examination by Mr. Jackson. Mr. Poe's in-court repetition of the out-of-court statement testified to by Agent Wichern undermined Mr. Jackson's Bruton challenge. "The Constitution as construed in Bruton ... is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for 'full and effective' cross examination." Nelson v. O'Neil, 402 U.S. 622, 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971) (emphasis in original); ...