U.S. v. White

• Decision Date: 22 September 1981
• Docket Number: 80-2346,80-2121 and 80-2527,80-2338,Nos. 80-2319,s. 80-2319
• Citation: 660 F.2d 1178
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry WHITE, Raymond Council and Bernard Rogers, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Henry WHITE, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. $38,394 U. S. CURRENCY, Defendant-Appellee, Henry White, Claimant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1178

660 F.2d 1178

UNITED STATES of America, Plaintiff-Appellee, v. Henry WHITE, Raymond Council and Bernard Rogers,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Henry WHITE, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. $38,394 U. S. CURRENCY, Defendant-Appellee, Henry White, Claimant.

Nos. 80-2319, 80-2338, 80-2346, 80-2121 and 80-2527.

United States Court of Appeals Seventh Circuit.

Argued May 26, 1981.

Decided Sept. 22, 1981.

Rehearing and Rehearing En Banc in Nos. 80-2121 and 80-2527

Denied Nov. 3, 1981.

Ira Raphaelson, Kathryn Goldwasser, Asst. U. S. Attys., Chicago, Ill., for plaintiffs.

Michael G. Cheronis, Federal Defender Program, Chicago, Ill., Laurence J. Bolon, Gail A. Niemann, Jenner & Block, Chicago, Ill., for appellee.

Before FAIRCHILD, Circuit Judge, MARKEY, ^* Chief Judge, and CUDAHY, Circuit Judge.

CUDAHY, Circuit Judge.

In these consolidated appeals, defendants Henry White, Raymond Council and Bernard Rogers appeal their criminal convictions in a bench trial for possession of heroin with intent to distribute. The United States also appeals from two rulings in a related attempt to have defendant Henry White forfeit $38,394 in currency seized during the criminal investigation.

I. FACTS

Federal and local authorities conducted a joint four-month investigation into the suspected narcotics trafficking of defendant White. White sold numerous small amounts of heroin to undercover Chicago police officer Christine Kolman over a period of three months. A portion of these sales were consummated at White's residence. At least one sale occurred in a nearby upstairs apartment that White also used as his living quarters.

On March 10, 1980, defendant White offered to supply the undercover officer with "multi-ounce quantities of heroin on short notice." Defendant White stated that he would have at least eight ounces of heroin for her the next day. Based upon this information, the authorities began to plan for the arrest of White on March 11.

Early in the morning of March 11, the arrest preparations began. A team of officers was deployed around White's apartment for a day-long surveillance. Administrative approval and sufficient cash ($20,400) for the purchase price of the anticipated heroin was obtained from the federal Drug Enforcement Administration (DEA). It was decided that DEA Agent John Duckhorn would accompany Officer Kolman in going to White's apartment for the purchase. The plan was to enter the apartment, examine the heroin, have Officer Kolman return to her car for the money and then have a team of agents enter White's apartment to make the arrest. The agents outside the apartment would be able to monitor the events inside the apartment by means of a hidden radio transmitter strapped to Officer Kolman.

At 9:00 p.m. on March 11, 1980, White telephoned Officer Kolman and informed her that he had the heroin. At approximately 11:30 p.m., Officer Kolman and Agent Duckhorn entered White's apartment to make the purchase. A number of other officers were positioned outside the building.

Defendant Council admitted Officer Kolman and Agent Duckhorn into White's apartment. Defendants Rogers and White were in the kitchen, where White was sifting a package of white powder on the sink. Officer Kolman introduced Agent Duckhorn as her "old man's partner." Agent Duckhorn remarked that White did not appear to have the full eight ounces of heroin that he had promised. White replied that he could get more and went out the back door to get the balance of the eight ounces. White left the original heroin with defendants Council and Rogers and the two undercover agents.

White returned to the apartment about 20 minutes later with another bag of white powder. Agent Duckhorn then sent Officer Kolman to get the money from her car. White told Rogers to accompany Officer Kolman to the car and asked Rogers if he had his "piece." Rogers said that he did, asked for the keys to White's apartment and went out to the car with Officer Kolman. At the car, two government agents seized Rogers and placed him under arrest. Using the keys obtained from Rogers, various police officers entered White's apartment without knocking. Defendants White and Council were arrested and a quantity of a substance containing heroin was seized from the counter next to the kitchen sink.

Allegedly acting with White's consent, several agents then went upstairs to White's second apartment. The agents knocked on the door and informed the woman who answered that White had been arrested and had consented to the search of the apartment. The agents then entered the apartment and commenced their search. During the search, the agents seized $42,194 in cash from a flight bag in a closet. The money was secured by rubber bands around piles of bills and was placed inside several purple cloth bags.

The grand jury indicted the defendants for possession of heroin with intent to distribute as well as other firearms offenses not relevant to this appeal. Prior to trial, White filed a motion under Rule 41(e) seeking the return of the money. The district court granted the motion based upon the unconstitutionality of the seizure. The government returned the money in compliance with this ruling and then immediately reseized the money and brought a civil forfeiture action under 21 U.S.C. § 881 (1978). The district court granted summary judgment for White in the forfeiture action because of the collateral estoppel effect of its earlier determination, on consideration of White's Rule 41(e) motion, that the money had been illegally seized. The summary judgment decision has been published. United States v. $38,394 U.S. Currency, 498 F.Supp. 1325 (N.D.Ill.1980).

II. THE ISSUES

The defendants each raise different issues regarding their convictions for possession of heroin with intent to distribute. Defendant White challenges, on Fourth Amendment grounds, the warrantless entry into his apartment to effect his arrest and seeks to suppress the evidence seized therein. Defendants Rogers and Council both raise the question whether the evidence was sufficient in their respective cases to establish their constructive possession of the heroin. The government also appeals the dismissal of its civil forfeiture proceeding against White as well as the granting of White's motion under Rule 41(e) of the Federal Rules of Criminal Procedure for the return of his seized property.

A. Defendant Council: Constructive Possession

Defendant Council challenges the sufficiency of the evidence on the issue of his constructive possession of the heroin. The district court found that the evidence showed beyond a reasonable doubt that Council was in constructive possession of the heroin because he exercised dominion and control over it. We must affirm the conviction unless the evidence, taken in a light most favorable to the government, would not permit a finding of constructive possession beyond a reasonable doubt. See United States v. Perlman, 430 F.2d 22, 24 (7th Cir.), cert. denied, 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970) (bench trial).

Council had been present at the March 10, 1980, meeting at which Officer Kolman and White negotiated the price for the heroin at issue here. Council indicated at that time, while Officer Kolman was negotiating a bulk price for heroin, that "we are barely making enough money, ... barely making a profit" at the nondiscounted price. While Council did not suggest a price, he surely indicated that he was due to receive some of the proceeds of the sale. Council's interest in the sale price was also confirmed by a later event. On the night of the arrests, while White was out of the apartment getting the remaining quantity of heroin, Council asked Rogers to verify the quantity price using his calculator. Participation in such negotiations over the price to be paid for the drug is quite probative of Council's constructive possession of the heroin. United States v. Marquez, 462 F.2d 620, 621 (9th Cir. 1972), cert. denied, 413 U.S. 921, 93 S.Ct. 3069, 37 L.Ed.2d 1043 (1973) (per curiam).

While White was out of the apartment, Council "snorted" small quantities of the heroin on the sink on two occasions. The district court did not rely heavily on this to support the finding of constructive possession. Use of a portion of narcotics by a defendant is relevant, however, to the extent of his control over the larger quantity. See United States v. Gonzalez, 442 F.2d 698, 702-03 (2d Cir.), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971).

As a final matter, Council indicated that he was in a position of control with respect to the heroin transaction of March 11th when, in the absence of White, Council affirmatively answered inquiries about a change in sites for future heroin transactions. If Council were merely a casual bystander to the heroin sale, he would have been unable to agree that future deliveries could be made at Comiskey Park.

Based upon these factors as well as others, we believe it clear that the district court could find that Council was in constructive possession of the heroin. Accordingly, we affirm the district court's judgment of conviction of Council for possession of heroin with intent to distribute.

B. Defendant Rogers: Constructive Possession

Defendant Rogers also challenges the sufficiency of the evidence against him on the issue of constructive possession. As the district court noted, the evidence against Rogers was much weaker than that against Council. ¹ The district court still found that the evidence against Rogers established, beyond a reasonable doubt, his constructive possession of the heroin in question. Viewing the evidence in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we affirm the conviction of defendant Rogers for possession of heroin with intent to distribute.

The district...