U.S. v. James

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Rovner
• Citation: U.S. v. James, 464 F.3d 699 (7th Cir. 2006)
• Decision Date: 22 September 2006
• Docket Number: No. 05-1411.,05-1411.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Louis JAMES, Defendant-Appellee.

464 F.3d 699

UNITED STATES of America, Plaintiff-Appellant, v. Louis JAMES, Defendant-Appellee.

No. 05-1411.

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2005.

Decided September 22, 2006.

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Timothy A. Bass (argued), Office of the United States Attorney Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Jonathan E. Hawley, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before POSNER, ROVNER and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Following a jury trial, Louis James was convicted of possession of more than fifty grams of crack cocaine (Count I), possession of and carrying a firearm in furtherance of a drug trafficking crime (Count II), and possession of a firearm by a felon (Count III). He was sentenced to 360 months' imprisonment. He challenges the sufficiency of the evidence on the carrying prong of Count II, complains of a number of errors in the jury instructions, and charges that the admission of certain "other bad acts" evidence unfairly prejudiced him. We affirm.

I.

In the fall of 2002, Louis James met Bradley Collier, a Decatur-area drug dealer, when both were living at a local motel. Collier learned from others at the motel that James was selling cocaine. Collier began to buy crack cocaine from James, at first in small quantities but later in larger quantities. At times, Collier paid cash for the drugs, and at other times, James fronted the cocaine to him. Collier typically resold the drugs at a profit, earning several hundred dollars per day at this trade. This arrangement continued until January 2004, when Collier moved into James' home at 1061 East William Street in Decatur (hereafter the "William Street house"). James lived there with his girlfriend, Tiara Woods. During Collier's two- to three-week stay at the William Street house, Collier and James sold marijuana and manufactured and sold crack cocaine. After Collier moved out, he continued to obtain cocaine from James.

In early February 2004, Decatur police officers began surveilling Collier after receiving a tip. On February 2nd, they observed him visit James' home where, they later learned, he purchased an ounce of cocaine. Collier then sold that ounce and returned to James' home to purchase two additional ounces of cocaine. After that second purchase, Collier proceeded to the Decatur Best Western motel where the officers then arrested him. The officers searched Collier's person, car, and motel room and recovered approximately seventy-four grams of cocaine, plastic baggies and a digital scale. After the arrest, the officers returned to the William Street house to conduct further surveillance. They saw James exit the house with two duffel bags and three dogs, all of which he loaded into his car. The officers followed James as he drove in an evasive manner to a house at 456 East Johnson Street (hereafter the "Johnson Street house"). James stayed at the Johnson Street house for approximately thirty minutes, and then drove to two separate residences, staying at each for less than half an hour. James returned to the Johnson Street house for a few minutes and then proceeded to an alley. In the alley, a man entered James' car and exited again a minute later. After the man drove away, the officers stopped him and recovered a small amount of cocaine and a cell phone that had been used to call James shortly before the rendezvous in the alley.

The officers conducted a traffic stop of James and recovered $100 in cash, two cell phones and a key to the William Street house. Based on the arrest of Collier, the officers obtained a search warrant for the William Street house, where they discovered many items related to drug trafficking. They seized a rock of crack cocaine, marijuana, plastic baggies, two digital scales, baking soda, two cell phones and a stun gun. They also recovered two loaded shotguns and one loaded .25 caliber pistol.

At roughly the same time, two Decatur police officers approached the Johnson Street house and attempted to obtain consent to search the house. Tiara Woods was in the house with her aunt, Evita Boey, who resided at the house. When the officers knocked on the door, Woods asked who was knocking but did not open the door. One of the officers could see into the house and he saw Woods pick up a shoebox and carry it to the back of the house. After several more minutes of knocking, Boey opened the door and consented to a search of the house. During the search, the officers found the shoebox in a bedroom at the back of the house. Inside the shoebox was a pair of size 10 sneakers. On top of the sneakers were a small scale, a Crown Royal bag and a glove. Inside the glove was a loaded .25 caliber handgun. Collier, the main witness against James at trial, testified that James owned four firearms, including two rifles and two .25 caliber handguns. Inside the Crown Royal bag and inside one of the shoes, the officers found a Newport cigarette wrapper, several plastic baggies containing more than eighty grams of crack and fifty grams of powder cocaine. James' fingerprint was discovered on one of the baggies of cocaine found inside the shoe. In addition to the contents of the shoebox, the officers seized six ounces of marijuana from a black bag in the living room and $2,375 in cash found in the pocket of a coat. In another pocket of the same coat, the officers found an identification card for Woods listing the William Street house as her address.

Following the searches, James and Woods moved to 1152 West Ash Street (hereafter the "Ash Street house") in Decatur. Throughout February and extending into early March 2004, Collier continued to obtain crack cocaine from James, who was manufacturing and distributing crack from the Ash Street house. The Decatur police surveilled the Ash Street house and on March 5, 2004, saw several people leave the house in a gray car. The officers stopped the car, in which James and Woods were passengers. The officers searched the car and seized $345 in cash and a small amount of marijuana from the floorboard under James' seat. They then searched the Ash Street house, recovering a glass dish with white residue, plastic baggies, baking soda, a Newport cigarette box containing marijuana and a digital scale. From a dryer vent on the outside of the house, the officers recovered seven grams of crack and twenty-seven grams of powder cocaine.

Prior to the start of trial, defense counsel requested that the government disclose any evidence it intended to present under Federal Rule of Evidence 404(b). Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Fed.R.Evid. 404(b). The government then notified the defense that it intended to introduce, among other things, evidence from the search of the Ash Street house and evidence seized during the traffic stop of James that same day. Unfortunately, the government informed the court that this evidence was seized on February 10, 2004, only a week after the crimes that were charged in the indictment, and the government portrayed this evidence as intricately related to the crime charged. In fact, the traffic stop and search had taken place on March 4, 2004, more than a month after the offense charged in the indictment. Without knowing about the error in the date, the court ruled that the drugs, drug paraphernalia and cash seized from Ash Street and from the contemporaneous traffic stop were admissible as evidence intricately related to the crime charged. No one noticed the error in the date until shortly before the trial commenced. On the morning the trial began, defense counsel filed a motion to exclude the evidence seized on March 4th on the ground that there was insufficient foundation for its admission. The government informed the court that it had mistakenly represented in its previous filing that the evidence was seized on February 10th but maintained that the court should still find that the evidence was intricately related to the charged conduct. The court denied the defense motion to exclude the March 4th evidence because the motion was untimely, not the result of surprise, and not supported by either fact or law. As we noted earlier, the jury returned a guilty verdict on all three counts. James appeals.

II.

On appeal, James contends that the district court should have ordered a judgment of acquittal on the "carrying" part of Count II because there was no evidence that he transported firearms at any time. He takes issue with the district court's wording of the "no adverse inference" jury instruction. He also maintains that the court erred by denying him jury instructions related to "mere presence" and "mere association." Finally, he charges that the evidence seized on March 4th should not have been admitted because it was not intricately related to the charged conduct.

A.

We begin with James' claim that the district court should have granted his motion for a judgment of acquittal on the charge of carrying a firearm in relation to a drug trafficking crime. We review the district court's denial of a motion for judgment of acquittal de novo. United States v. Jones, 371 F.3d 363, 365 (7th Cir.2004); United States v. O'Hara, 301 F.3d 563, 569 (7th Cir.2002). Such a motion should be granted only when the evidence is insufficient to sustain the conviction. O'Hara, 301 F.3d at 569. In reviewing...