U.S.A. v. Walls & Williams

• Decision Date: 15 August 2000
• Docket Number: Nos. 99-1942,s. 99-1942
• Citation: 225 F.3d 858
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAISY E. WALLS and SHAREE S. WILLIAMS, Defendants-Appellants. & 99-1943
• Court: U.S. Court of Appeals — Seventh Circuit

Page 858

225 F.3d 858 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAISY E. WALLS and SHAREE S. WILLIAMS, Defendants-Appellants.

Nos. 99-1942 & 99-1943

In the United States Court of Appeals For the Seventh Circuit

Argued November 10, 1999

Decided August 15, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 296--David H. Coar, Judge. [Copyrighted Material Omitted] Before POSNER, ROVNER, and DIANE P. WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Daisy Walls and Sharee S. Williams were convicted after a jury trial of conspiracy to possess with intent to distribute and conspiracy to distribute substances containing cocaine in violation of 21 U.S.C. sec. 846, and possession with intent to distribute approximately four kilograms of cocaine in violation of 21 U.S.C. sec. 841(a)(1). Williams was also convicted of knowingly possessing a firearm as a felon in violation of 18 U.S.C. sec. 922(g)(1). They now appeal those convictions.

I.

On April 22, 1998, Federal Express ("FedEx") identified as suspicious two packages that were purportedly shipped by the Renaissance Electrical Supply Company in Los Angeles, California, for delivery to Tascam Electrical Supply Company at 9121 S. Colfax in Chicago, to the attention of Daisy Walls. FedEx employees conducted a field test on the contents of the packages, which revealed the presence of cocaine. The employees then reported the results of their investigation to Phillip Barnett, who was commissioned by the Shelby County Sheriff's Office and assigned to the DEA Drug Task Force. Barnett subsequently traveled to the FedEx office and conducted his own test of the packages, which yielded the same results. The DEA agents were unable to verify any businesses using the names indicated on the packages, and decided to make a controlled delivery of the packages to the Chicago destination. A court-ordered break-wire device was inserted into each package to enable the agents to track the packages after the delivery was accomplished. If a package was opened, the wire would break and the signal being transmitted by the wire to the agents monitoring it would cease. Agent Markhart then donned a FedEx uniform and drove to 9121 S. Colfax in a truck with FedEx markings. Approximately fifteen undercover agents dispersed in the area surrounding the residence. Agent Markhart arrived at 9121 S. Colfax (which was a private residence) at approximately 5:30 p.m. on April 23, 1998. As he approached the residence he passed two persons standing in front of it, and one of them yelled toward the house "Mama, your package is here." Daisy Walls ("Walls") answered his knock, and he apologized for the late delivery because the packages had been scheduled for delivery the previous day. When he requested a signature for the packages, Walls turned to a male standing just inside the door, who was later identified as her son Daniel Walls, and asked him to sign. He scrutinized Markhart and declined to sign. Walls then said "I'll sign the electric company." Until that time, Walls could not have seen the address labels on the packages and Agent Markham had not mentioned that the addressee was an electrical company. Walls then examined the packages and signed Tascam Electric, DGW. During this exchange, Markhart noticed approximately 10-15 people in the front room of the house, apparently having a party.

After Agent Markhart's departure, Sharee Williams and Daniel Walls exited the rear of the house with the packages, and proceeded down the alley and into the rear basement door of 9127 S. Colfax. Shortly thereafter, the two emerged from the basement and Williams returned to 9121 S. Colfax while Daniel Walls went to the front of 9127 S. Colfax and began speaking on a cellular phone. Approximately 8 to 10 males, aged 18 to 24, were in the alley behind 9127 S. Colfax at this time, and a car was circling the block. At that moment, the signal being transmitted from one of the packages stopped. Concerned about maintaining control over the cocaine, the agents proceeded to 9127 S. Colfax and, when their knock received no response, they forcibly entered the dwelling. They found the unopened packages on a table immediately inside. The agents then went to 9121 S. Colfax and knocked on the screen door. A number of people inside shouted obscenities at them and told them they would not open the door without a search warrant. Daisy Walls then appeared at the door. The agents identified themselves and informed her that they were there on an investigation concerning the two packages that had been delivered. Without saying anything, she then opened the door and stepped back. Once they had entered, she motioned to them from the hallway to follow her into the kitchen. After hearing and acknowledging her Miranda rights, Walls stated that this was the third time she had accepted similar packages, that she did not know what it contained the first time but that she opened the second one out of curiosity and discovered it contained cocaine, and that she knew the third package contained cocaine as well. She told the agents that the packages belonged to Delano Target, a member of the Gangster Disciples street gang.

After arresting Walls, the agents brought Williams into the kitchen. She declared that she had nothing to hide and gave written consent for the search of her basement apartment at 9127 S. Colfax. A search of the basement apartment revealed a clear plastic bag containing marijuana in a dresser drawer; approximately $4000 in U.S. currency inside a basket of clothes; approximately $1000 in U.S. currency in a safe; and a box of rubber gloves, tinfoil, plastic bags, white powder, paper masks, and a digital scale, all of a type used in packaging and weighing cocaine for sale, on or near the kitchen table. In addition, the search yielded a Ravens Arms .25 caliber firearm in a dresser drawer of the bedroom. A photograph taken by the agents revealed some clothes next to the firearm, which appeared to be boxer shorts and a tie or possibly a scarf. At the DEA office, Williams acknowledged her Miranda rights and signed a written statement declaring that she was at Walls' house when the package arrived, that she saw the package on the table and knew it contained drugs but did not know the type or quantity, and that Walls wanted the packages removed from her house and she volunteered to take them to her home. A jury convicted Walls and Williams on all charges, and they now raise a multitude of challenges to those convictions.

II.

Walls first contends that the initial search of the FedEx packages by the FedEx employees violated the Fourth Amendment because it was a joint endeavor between deputy sheriffs and FedEx employees. As support for this argument, Walls points to testimony at trial that Gheric Bruce, the security officer for FedEx who conducted the initial search of the package in Memphis, was also a commissioned officer of the Shelby County Sheriff's Department. He had been an employee of FedEx for 11 years, and the scope of his involvement with the Sheriff's Department is unclear other than his testimony that he was not a sheriff's deputy but was commissioned by the Department.

This argument was raised for the first time in this appeal, and is waived. Prior to trial, Walls moved to suppress the contents of the packages on the basis that private investigators and private police should be subject to the strictures of the Fourth Amendment under Marsh v. Alabama, 326 U.S. 501 (1946). In Marsh, the Court held that a "company town" was subject to the First Amendment because in all respects save ownership it functioned as any other town, and the private ownership could not alone defeat the protections of the Constitution. Id. at 507-08. Walls thus tendered Marsh for the proposition that a private party may be considered a state actor under the Constitution to the extent it supplants the traditional roles of a government and performs public functions. Walls contended that the Marsh rationale applied here because "the activities of Federal Express, which have procedures to investigate large quantities of documents and materials that are placed for mail delivery, causes it to engage in a public function." We need not address this public function argument because Walls has abandoned it on appeal in favor of the new argument that the FedEx employee was operating as an agent of the government during the search. As justification for the failure to raise it earlier, Walls asserts that she did not learn until trial that the FedEx employee was also affiliated with the sheriff's office. Although that is relevant to the failure to raise the issue pre-trial, it does nothing to excuse the failure to raise it during or after the trial. Both during the trial and in a post-trial motion, Walls merely reiterated her disagreement with the court's ruling on her initial motion to suppress. At no point did Walls raise the new argument for suppression. Accordingly, this argument was not raised in the district court, and is forfeited. United States v. Olano, 507 U.S. 725, 731-35 (1993). Walls has not argued, and we do not find, any plain error. Id.

Walls next challenges DEA Drug Task Force member Barnett's field test of the contents of the package. She maintains that the search was constitutionally defective because Barnett was not told why the package was suspicious prior to conducting the test, and the cocaine was not in plain view. That characterization of the facts is belied by the very testimony quoted in Walls' brief. Barnett testified that before he conducted the field test, he was informed that FedEx had already tested the contents of the package and believed it contained cocaine. It is irrelevant that he did not know details concerning the test such as the name of the person who conducted it. Walls' argument relies on selective use of testimony and is frivolous.

The...