U.S. v. Upton

• Decision Date: 09 January 2008
• Docket Number: No. 07-1456.,07-1456.
• Citation: 512 F.3d 394
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tavon A. UPTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

512 F.3d 394

UNITED STATES of America, Plaintiff-Appellee, v. Tavon A. UPTON, Defendant-Appellant.

No. 07-1456.

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2007.

Decided January 9, 2008.

James E. Crowe, III, Office of the United States Attorney Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Phillip J. Kavanaugh, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

A confidential informant told the St. Clair County Sheriff's Drug Tactical Unit ("DTU") that she could purchase crack cocaine from defendant-appellant Tavon A. Upton at his home in Cahokia, Illinois. On July 9 and July 15, 2003, under police supervision, she did just that. Using the evidence from these controlled buys, Investigator Timothy Bedard applied for a warrant to search Upton's home and, on July 16, 2003, Bedard and members of the DTU executed the warrant. When he saw the DTU approaching, Upton bolted, discarding two baggies containing cocaine base and cocaine as he ran. The police soon caught up, arrested him, and drove him—literally kicking and screaming—to the police station, where he confessed to selling drugs out of his house. The search of Upton's home—producing an assortment of drug paraphernalia, digital scales, two knives, and a .380 caliber handgun— confirmed his confession.

An indictment followed and, on April 26, 2006, convictions for one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count each for possessing with intent to distribute cocaine base and cocaine in violation of 21 U.S.C. § 841(a)(1). The district court then sentenced Upton to 288 months' imprisonment, a 5-year term of supervised release, a special assessment, and a fine. Upton now appeals, challenging the admissibility of his confession, an officer's expert testimony given at trial, the jury instructions, and his enhanced sentence for being a career criminal. Finding no error, we affirm both his convictions and his sentence.

I. Background

A. Factual History

In July 2003, a confidential informant learned that Upton had been selling crack cocaine out of his home in Cahokia—a city in southwest Illinois on the border with Missouri—and contacted Officer Timothy Bedard. Officer Bedard was an officer in the Cahokia Police Department and the St. Clair County Sheriff's Drug Tactical Unit ("DTU"). On July 9 and again on July 15, 2003, under Bedard's supervision, the confidential informant engaged in two controlled buys of crack cocaine out of Upton's home. Using the information from these buys, Bedard obtained a search warrant for Upton's address and, the next day, Bedard and several other members of the DTU executed the warrant. When the DTU pulled up to his home, Upton was standing in his driveway. Rightly guessing that the approaching battalion of police in riot gear was not a good sign, he took off running. The police caught him and recovered two plastic bags, containing what the police later determined to be 4.4 grams of cocaine and 4.8 grams of cocaine base.

For his part, Upton was not the model arrestee. While Bedard was initially reading him his Miranda rights, Upton began yelling that he was not going to return to prison. During the ensuing frisk, he became more aggressive, refusing to cooperate with the police and pulling away from and even kicking at the officers. And when the officers tried to put him in the squad car, he resisted their efforts— though they eventually succeeded.

Another Cahokia police officer, Phillip Taylor, and his partner then drove Upton to the police station. On the way, Upton's antics only worsened. After only a few blocks, he began kicking the squad car's side window and door with both feet, eventually causing the door and window to bow out. Taylor stopped the car, opened the door, and attempted to pacify Upton, but to no avail. Seemingly at a dead end, Taylor delivered what's called a "palm strike" in an effort to get Upton back in the car.¹ He was not aiming for Upton's nose—he testified that he was trying to hit Upton's torso. But when Upton lowered his head mid-strike, that's where his palm landed. Though errant, the move was successful. Upton abandoned his efforts to leave the car, and Taylor was able to close the door and continue on. After his booking, Taylor then tended to a cut on Upton's nose (the "palm strike" had produced a small laceration), which stanched the bleeding.

A few minutes later, another Cahokia police officer, Deputy Bill Kenny, transported Upton to the St. Clair County Jail. On the way, Upton told Deputy Kenny that he wanted to work as an informant for another Cahokia police officer whom Upton knew, Detective Kurt Evers-man. The conversation did not go much further, and Kenny delivered Upton to the county jail.

While all this was going on, Bedard and the DTU had been searching Upton's residence. The fruits of the search confirmed suspicions that Upton had been dealing drugs: marijuana recovered from the kitchen and Upton's truck; cocaine from a kitchen cabinet; a digital scale with residue on it; boxes of plastic bags; bottles of prescription drugs not prescribed to Upton; a. 380 caliber Tanfoglio firearm and ammunition; a police radio scanner; a large knuckle-knife with a steel-spiked handguard; and a switchblade. Bedard inventoried what the DTU had found and went to the county jail to question Upton.

Bedard, Detective Eversman, and another officer conducted the interview. Bedard first read Upton his Miranda rights a second time, but Upton refused to sign an acknowledgment form. Still, Upton answered the officers' questions, repeating his earlier offer to cooperate with the police in exchange for a lowered sentence. Upton then proceeded to make several incriminating statements. He confessed to selling drugs out of his home in order to support his child. And he also explained that he was a user; in fact, he had smoked crack just before his arrest, perhaps explaining his outburst in the squad car. When confronted with the fact that the police had removed a .380 caliber gun from his home, Upton admitted that he had handled it, but said that it belonged to a friend. At trial, the officers would testify that Upton was composed throughout the interview, and he did not give any outward indication that he was still in pain from his cut nose. Despite his apparent cooperation, at the end of the interview Upton refused to sign a written statement memorializing his confession.

Upton never did end up identifying other drug dealers, and on April 5, 2006, a grand jury returned a five-count indictment against Upton charging (i) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1); (ii) possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (iii) possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (iv) possession of a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1); and (v) forfeiture of the firearm involved in a drug-trafficking offense pursuant to 18 U.S.C. § 924(d).

B. Procedural History

Prior to his trial, Upton sought to suppress his post-arrest statements, claiming that his Miranda waiver had not been voluntary. To shore up his claim, Upton pointed to his injured nose and his refusal to sign a Miranda waiver. After briefing and a hearing, the district court denied Upton's motion. The court found that Upton had been "combative and uncooperative" and that he had received his bloodied nose "as a result of his behavior during his arrest and transportation to the Cahokia Police Department," not due to police overreaching. Further, Upton's efforts "to help himself by cooperating, essentially to stay out of jail" overshadowed any inference of police overreaching that could be drawn from a refusal to sign the Miranda waiver.

At trial, the government would prove its case against Upton through the testimony of the various officers involved in Upton's arrest, Upton's confession, and the physical evidence seized from his home. Upton objected to the fact that Officer Eversman would testify as both an expert and a lay witness. Eversman had expertise on the drug trade, such as the use of firearms in drug trafficking, the tools of the trade, and why the amount of drugs seized from Upton's home indicated an intent to distribute. But he would also testify as a lay witness regarding Upton's confession, the controlled buys, the execution of the search warrant, and the particulars of Upton's arrest. Upton was concerned that the jury would not be able to separate the two kinds of testimony and noted this potential prejudice to the court. To obviate any prejudice, the government agreed to clearly separate Everman's expert and lay testimony. In addition, prior to his testimony, the court instructed the jury that "Lieutenant Eversman will testify as both a fact witness and an expert witness," to put them on guard. Finally, as promised by the government, the court took a twenty minute recess between Eversman's lay testimony and his expert testimony.

During Eversman's expert testimony, Upton objected to several questions posed by the government, claiming that they blurred the distinction between lay and expert testimony or were not helpful to the jury. The court sustained several objections, concluding that they were not helpful to the jury or that the government had asked a question going to fact testimony during Eversman's expert testimony. For example, the court sustained an objection to a question asking Eversman about the contents of Upton's confession during the expert portion of his testimony. The court also overruled objections to questions asking Eversman to comment on particular pieces of evidence. Thus, the government could not ask whether the location of the gun seized in the search of Upton's...