U.S. v. Taylor

• Citation: 728 F.2d 864
• Decision Date: 16 February 1984
• Docket Number: No. 82-3096,82-3096
• Parties: 14 Fed. R. Evid. Serv. 1900 UNITED STATES of America, Plaintiff-Appellee, v. Lloyd TAYLOR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 864

728 F.2d 864

14 Fed. R. Evid. Serv. 1900

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd TAYLOR, Defendant-Appellant.

No. 82-3096.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 2, 1983.

Decided Feb. 16, 1984.

Robert J. Weber, Robert J. Weber, Ltd., Chicago, Ill., for defendant-appellant.

Susan Bogart, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL and COFFEY, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

COFFEY, Circuit Judge.

Defendant-Appellant, Lloyd Taylor, appeals his conviction in the United States District Court, Northern District of Illinois, for possession of an unregistered machine gun and an unregistered silencer in violation of 26 U.S.C. Sec. 5861(d) (1976). We affirm.

I

The evidence at trial revealed that appellant, Taylor, and his wife, Yolanda, resided in a one-story townhouse, with an adjoining basement, located at 1141-A N. Noble, Chicago, Illinois. On January 12, 1982, at approximately 9:30 p.m., Officer Siwek of the Chicago Police Department, Gang Crimes North, obtained a search warrant from the Cook County Circuit Court to search Lloyd Taylor and the townhouse at 1141-A N. Noble, Chicago, Illinois, for cocaine and proof of residency. At approximately 10:30 p.m., on that same evening, Officer Matthews, a plain clothes investigator for the Chicago Police Department, Gang Crimes North, accompanied two uniformed police officers to Taylor's townhouse and knocked on the door. Upon opening the door, Taylor was asked if he was the owner of a black "Lincoln Continental" parked adjacent to the townhouse and if, in fact, he was Lloyd Taylor. When Taylor responded to both questions in the affirmative, the police officers entered the premises and handed Taylor a copy of the search warrant. ¹ Officer Matthews conducted a protective frisk of Taylor and instructed him to "sit on the couch" while the police officers searched the townhouse and adjoining basement for cocaine and proof of residency. Prior to seating Taylor on the couch, Officer Matthews conducted a "cursory search" of the surrounding area. Under the couch Matthews discovered a .9 millimeter Swedish-made automatic submachine gun, with a fully loaded 36 round clip and one round in the chamber, and a silencer that fit over the barrel of the machine gun. ² Upon discovery of the machine gun and silencer, Matthews arrested and handcuffed Taylor, advised Taylor of his "Miranda" rights, and instructed him to remain seated on the couch while the police officers searched the townhouse and adjoining basement for cocaine and proof of residency.

During the ensuing search, the police discovered and seized additional guns, including nine pistols stored in an attache case in the basement and one .30 caliber rifle concealed in the bedroom closet. ³ The police also recovered "a package containing a white powdered substance," which at that time they "felt to be cocaine," from a false-bottomed "Brut 33" deodorant spray can on a "shelf area next to the kitchen." From a false ceiling in the basement, the police recovered another bag of white powder, believed to be cocaine, jewelry, and $5,367 in U.S. currency. A police lab test later revealed that the "white powder" seized from Taylor's townhouse was, in fact, 10.48 grams of cocaine.

While continuing the search for cocaine and proof of residency, the officers discovered and seized numerous pieces of stereo and video equipment, many with their serial numbers removed or defaced. The officers also recovered various articles of clothing, including fur coats and leather jackets, all with their labels removed. During the course of the search, Officer Siwek questioned Taylor about the property that police had recovered from the basement and Taylor responded that "his friend, who went to Texas, left it in his custody a few days prior to leaving." Following the search, Taylor was taken to police headquarters where he informed Special Agent Malone of the Bureau of Alcohol, Tobacco and Firearms that the guns "must have been left from a friend of his from Texas." At no time did Taylor supply police officers with the name of this alleged friend from Texas.

Based upon this information, a Federal Grand Jury returned a two-count indictment against Taylor charging him with possession of an unregistered machine gun in violation of 26 U.S.C. Sec. 5861(d) and possession of an unregistered silencer in violation of 26 U.S.C. Sec. 5861(d). On October 26, 1982, the case went to trial before a jury and at that time Taylor asserted an alibi defense that he had no knowledge of the presence of the machine gun or the silencer in his townhouse on January 12, 1982. Taylor testified that from January 4, 1982, until January 12, 1982, he and his wife were visiting his step-sister in Milwaukee, Wisconsin and that a former employee of his, Janet Simmons, and her husband, were staying in this townhouse. Taylor further testified that he and his wife returned to Chicago between 9:00 p.m. or 9:15 p.m. on January 12, 1982, but when they arrived at their townhouse the Simmonses were not present. ⁴ According to Taylor's alibi defense, the guns, including the nine pistols, the .30 caliber rifle, and the machine gun with silencer, the clothing, including fur coats and leather jackets with their labels removed, and 10.48 grams of cocaine, all belonged to the Simmonses, whom Taylor had not seen or heard from since January 4, 1982. Taylor claimed to have no knowledge of the presence of these items in his townhouse on the evening of January 12, 1982. Taylor admitted, however, to having knowledge of the stereo and video equipment present in his townhouse on that same evening. Taylor explained the presence of this equipment, many pieces with serial numbers removed or defaced, as items he had purchased at flea markets and was planning to resell as part of his record business. Taylor testified that he stored the stereo and video equipment at his townhouse because of two recent burglaries, in June and October of 1981, at his place of business, Worldwide Records, 1268 N. Milwaukee, Chicago, Illinois. Taylor also acknowledged ownership of the jewelry discovered by police behind a false ceiling in the basement, maintaining that it too was purchased at flea markets. In addition, Taylor claimed that the $5,367 in U.S. currency was money earned from the resale of items purchased at flea markets and was to be used for a business trip to Hawaii.

Based upon this evidence, the jury returned a guilty verdict on both counts and the district court sentenced Taylor to a three-year period of incarceration for possession of an unregistered machine gun in violation of 26 U.S.C. Sec. 5861(d), and a concurrent three-year period of incarceration for possession of an unregistered silencer in violation of 26 U.S.C. Sec. 5861(d). On appeal, Taylor contends that:

A. The evidence presented by the Government was insufficient to prove that appellant knowingly possessed the machine gun and the silencer.

B. The district court erred in admitting evidence of items, other than the machine gun and silencer, seized from appellant's townhouse.

C. The Government's cross-examination of appellant was improper.

We shall deal with these issues individually.

II

A. POSSESSION UNDER 26 U.S.C. Sec. 5861(d)

The appellant contends that in order to violate 26 U.S.C. Sec. 5861(d), a person must "knowingly possess" an unregistered firearm. ⁵ See, e.g., United States v. Freed, 401 U.S. 601, 612, 91 S.Ct. 1112, 1119, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring). The appellant claims that in this instance the Government failed to introduce sufficient evidence to prove that Taylor "knowingly possessed" the machine gun and silencer found in his townhouse on January 12, 1982. According to the appellant, the Government's evidence proved only that Taylor owned the premises at 1141-A N. Noble, Chicago, Illinois, not that he possessed the machine gun and silencer contained therein. The appellant reasons that mere ownership of a townhouse, allegedly occupied by a former employee and her husband, between January 4, 1982, and January 12, 1982, does not satisfy the possession requirement of 26 U.S.C. Sec. 5861(d). To support his position, the appellant relies upon the language in United States v. Craven, 478 F.2d 1329 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973) ("Craven "), where the United States Court of Appeals for the Sixth Circuit interpreted "possession" under 26 U.S.C. Sec. 5861(d), and stated that "possession of the residence is insufficient to establish possession of all the contents of the house." 478 F.2d at 1333. ⁶ The appellant claims that in this instance the machine gun and silencer belonged to the Simmonses and that the presence of these unregistered firearms in his townhouse, without his knowledge, does not constitute knowing possession on his part.

We initially note that the appellant challenges only the sufficiency of the Government's evidence on the issue of knowing possession, not the legal definition of possession under section 5861(d), including actual or constructive possession of a firearm, or the district court's instructions to the jury on what constitutes possession for purposes of 26 U.S.C. Sec. 5861(d). It is a well-established principle of Federal law that when the sufficiency of evidence in a criminal conviction is questioned, the reviewing tribunal examines the record in the light most favorable to the Government. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Carter, 720 F.2d 941, 946 (7th Cir.1983). It is not our prerogative to retry the case, weigh the evidence, or assess the credibility of witnesses. United States v. Carter, 720 F.2d at 946; United States v. Miles, 401 F.2d 65, 67 (7th Cir.1968). The verdict will not be disturbed if...