U.S. v. Wilson

Decision Date20 February 1997
Docket NumberNo. 96-3062,96-3062
Citation107 F.3d 774
Parties46 Fed. R. Evid. Serv. 706, 97 CJ C.A.R. 267 UNITED STATES of America, Plaintiff-Appellee, v. Franchie D. WILSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Lanny D. Welch (Jackie N. Williams, United States Attorney, with him on the brief) Assistant United States Attorney, Wichita, KS, for Plaintiff-Appellee.

T. Lynn Ward, Hershberger, Patterson, Jones and Roth, P.C., Wichita, KS, for Defendant-Appellant.

Before SEYMOUR, PORFILIO, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

A jury convicted defendant-appellant Franchie D. Wilson on three counts of possession of a firearm or ammunition by a convicted felon in violation of 18 U.S.C. § 922(g); one count of possession with intent to distribute, or aiding or abetting the distribution of, approximately five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2; and one count of unlawfully carrying or using, or aiding or abetting the carrying or using of, a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. §§ 2, 924(c). After the district court vacated Mr. Wilson's conviction for carrying or using a firearm in relation to a drug-trafficking crime, it sentenced Mr. Wilson to 108 months imprisonment on each of the remaining counts to run concurrently. Mr. Wilson appeals his conviction on the basis that (1) there was insufficient evidence by which the jury could convict him on the remaining counts; (2) the district court erred by allowing hearsay testimony regarding the events surrounding a "controlled buy" by a confidential informant; and (3) the district court erred in allowing testimony regarding Mr. Wilson's prior acts and criminal conviction. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

I. BACKGROUND

Two relevant incidents preceded the events that gave rise to Mr. Wilson's indictment. First, on July 23, 1994, Wichita police officer Gores stopped a vehicle driven by Mr. Wilson. In the course of arresting Mr. Wilson for driving with a suspended license, Officer Gores found cocaine and marijuana on his person. Mr. Wilson was subsequently convicted of, among other things, felony possession of cocaine.

Second, on March 18, 1995, Mr. Wilson was a passenger in a vehicle driven by Quintina Mannie in which Wichita police officer Easter found a .38 caliber handgun after arresting Mr. Wilson on an outstanding felony warrant. In responding to a charge for possession of the handgun, Ms. Mannie testified that the handgun belonged to Mr. Wilson and that he hid it when the police pulled them over. No charges were ever filed against Mr. Wilson for possession of the handgun.

The more immediate set of events relevant to the present appeal began in March 1995, when Wichita police officers investigated a residence at 2026 North Green for possible drug dealing. On March 23, 1995, Officer Easter used a confidential informant to make a "controlled buy" of cocaine from the residence using marked currency. Officer Easter watched the transaction in which Mr. Wilson met the informant and then--out of the sight of Officer Easter--went into the house together, where the informant purchased approximately one-half gram of crack cocaine which was then turned over to Officer Easter. Based on this "controlled buy," Officer Easter obtained a search warrant for 2026 North Green.

On March 25, 1995, several police officers under Officer Easter's command executed the search warrant on 2026 North Green. As the police officers approached the residence, Mr. Wilson met them at the front door. When the officers informed Mr. Wilson of the search warrant, he slammed the door shut, ran toward the kitchen, and entered the first-floor bedroom, where he was apprehended by the officers. There was a loaded SKS assault rifle found propped up against the door frame near where Mr. Wilson was placed under arrest.

Upon searching Mr. Wilson, the police found a pager and $359.00 in currency--none of which matched the money used in the controlled buy. The search of the premises uncovered: (1) 17-20 "rocks" of crack cocaine (3.74 grams in total) in a six-pack Dial soap box found in a brown paper bag in the yard near the porch; (2) a glass tray and razor blade containing cocaine residue and Mr. Wilson's fingerprint which were found in a closet; (3) five bars of Dial soap in the same closet; (4) a cartridge container of .38 caliber bullets in the kitchen; and (5) a second SKS assault rifle in the upstairs bedroom. Mr. Wilson's personal effects were also located in the upstairs bedroom and included two letters and several legal documents with Mr. Wilson's name, photographs which included Mr. Wilson, and six pairs of shoes matching Mr. Wilson's size. There was no evidence found indicating that any other person inhabited the residence.

Detective Fettke testified that, while being booked into jail, Mr. Wilson questioned how he could be charged for possessing a firearm when he did not have any guns on his person. According to Detective Fettke, Mr. Wilson then told him "that I [Detective Fettke] was a pussy funk and that he [Mr. Wilson] had beat me again, and that he didn't have the guns or dope on him this time and had beat me again."

Based upon this evidence, Mr. Wilson was indicted and convicted on: (1) three counts of possession of a firearm or ammunition--i.e., the two SKS assault rifles and the .38 caliber ammunition--by a convicted felon; (2) one count of possession with intent to distribute, or aiding or abetting the distribution of, approximately five grams of cocaine; and (3) one count of unlawfully carrying or using a firearm in relation to a drug-trafficking crime. At sentencing, the district court vacated the conviction for carrying or using a firearm in relation to a drug-trafficking crime and sentenced Mr. Wilson to 108 months imprisonment on each of the four remaining counts to run concurrently.

II. DISCUSSION
A. Sufficiency of the Evidence

Mr. Wilson contends the evidence was insufficient to support the jury's finding that he possessed cocaine with intent to distribute and that he was a felon in possession of a firearm or ammunition. We review the record for sufficiency of the evidence de novo. United States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir.1994). "Evidence is sufficient to support a conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most favorable to the government." United States. v. Mains, 33 F.3d 1222, 1227 (10th Cir.1994). Rather than examining the evidence in "bits and pieces," we evaluate the sufficiency of the evidence by "consider[ing] the collective inferences to be drawn from the evidence as a whole." United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.1986). Thus, we must affirm the convictions if the "collective inferences" from the totality of that evidence could have led a reasonable jury to find beyond a reasonable doubt that Mr. Wilson possessed the requisite knowledge and intent for the underlying crimes. United States v. Johnson, 57 F.3d 968, 971 (10th Cir.1995). We address Mr. Wilson's arguments in turn.

1. Possession with intent to distribute cocaine

To obtain a conviction for possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1), the government had to prove that Mr. Wilson (1) possessed a controlled substance; (2) knew he possessed a controlled substance; and (3) intended to distribute the controlled substance. Mains, 33 F.3d at 1228. Mr. Wilson contends the evidence was insufficient to support his conviction under § 841(a)(1). Specifically, he argues that there was insufficient evidence to connect him with the house and the cocaine found in the yard. He also argues that there was insufficient evidence to establish his alleged intent to distribute the 3.74 grams of cocaine base.

In reviewing the evidence in the light most favorable to the government, we find that the combination of the various pieces of evidence provides sufficient grounds for a reasonable jury to conclude that Mr. Wilson possessed the cocaine base found in the yard. The possession of a controlled substance may be either actual or constructive. Constructive possession occurs when a person "knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found." United States v. Hager, 969 F.2d 883, 888 (10th Cir.1992). While constructive possession may be demonstrated through circumstantial evidence, the government must show "a sufficient nexus between the defendant and the narcotics." Id.

The circumstantial evidence found in the home suggests that Mr. Wilson exercised sole dominion and control over the premises and can be used to infer that he possessed the cocaine found in the Dial soap box in the yard. Even though there is no direct evidence that Mr. Wilson owned or rented the house at 2026 North Green, the circumstantial evidence demonstrates that Mr. Wilson was the only person living at the residence at the time of the search. The police found Mr. Wilson's personal belongings in an upstairs bedroom: letters and documents with Mr. Wilson's name, personal photos which included Mr. Wilson, and shoes matching Mr. Wilson's size. The police also noted that no other personal effects were found in the house. Nor was there evidence (ie., crack pipes, alcohol, steel wool, or cotton swaps) to indicate that the house served as a transient crack house. Mr. Wilson is further connected to the house and the cocaine through the glass tray and razor blade containing cocaine residue and his fingerprint. Finally, the 3.74 grams of cocaine base were in a Dial soap six-pack box, and there were six bars of Dial soap found inside the house--five of which were in the same closet as the glass tray with Mr. Wilson's fingerprint. This evidence, taken together,...

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