U.S. v. Wilson
| Citation | 922 F.2d 1336 |
| Decision Date | 23 January 1991 |
| Docket Number | No. 90-1987,90-1987 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry D. WILSON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Richard N. Cox, Asst. U.S. Atty., Office of the U.S. Atty., Danville, Ill., for plaintiff-appellee.
Larry D. Wilson, pro se.
David J. Ryan, Dukes, Martin, Helm & Ryan, Danville, Ill., for defendant-appellant.
Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WILL, Senior District Judge. *
The police found a gun under Larry Wilson's girlfriend's mattress and as a result Wilson, who had three prior convictions, was indicted and tried for unlawful possession of a firearm. The jury returned a guilty verdict and the district court sentenced Wilson to a term of fifteen years, the statutory minimum. 18 U.S.C. Sec. 924(e). Wilson appeals, arguing primarily that the evidence that he possessed the gun was too thin to support a conviction. The evidence was sufficient, and we affirm the judgment. Wilson also argues that his sentence should not have been enhanced on the basis of the prior convictions, which, he says, were unconstitutionally obtained. All three prior convictions stemmed from a single plea agreement and Wilson argues that he took that agreement and tendered the pleas only because his appointed counsel, who thought the agreement was a good one, threatened to withdraw if he persisted in demanding a trial. This is not an unconstitutional "only." Wilson has not credibly demonstrated that he would have insisted on going to trial but for his lawyer's threats. We therefore affirm his sentence as well.
Wilson sometimes spent weekends with Anita Townsend and their two children at her apartment (though he had his own place). One Monday morning in February 1989, four Danville police officers showed up at Townsend's apartment, looking for Wilson and carrying a warrant for his arrest. Their instincts were right; Wilson was there. They arrested him and whisked him away. The arrest did not stick. We were told at oral argument that all charges against Wilson connected to the arrest were later dismissed in state court for want of evidence.
With Wilson gone, the police obtained consent from Townsend to search her apartment and in the course of the search found a .38 Colt between the mattress and the boxspring in a bedroom, where they also found some men's clothing (blue jeans and shirts), which may have belonged to Wilson. The Colt was taken to the police crime lab. Fingerprint experts there found a latent "ridge detail" on a groove in the gun and matched the detail to Wilson's left thumb.
That, in sum, was the government's case for Sec. 924 possession against Wilson. There was no direct evidence that the gun in Townsend's apartment belonged to Wilson, no witness testified to having ever seen him with it, and no effort was ever made to match the latent print on the gun with anyone's inked prints except his. No comparison, for example, was ever made with Townsend's prints.
In his defense, Wilson put his own fingerprint expert on the stand, Steven Schachte. Schachte testified that "due to an insufficient amount of clear characteristics," the latent print found on the gun was "inconclusive and non-identifiable." Wilson also called Anita Townsend, who testified that the Colt was hers, that she bought it to protect herself from burglars and that she placed it under the mattress. Townsend, however, was not a good witness. The district judge observed that she "came across as a person who was untruthful and belligerent" and remarked that "[t]he jury obviously reached that conclusion too." Her testimony was impeached by a federal agent, who testified that Townsend had told him earlier, though not under oath, that the gun was not hers, and also by the testimony of a Danville police officer who testified that, on the morning of the search, Townsend told him that the gun was not hers and that she had never seen it before. The Danville officer did not, however, ask Townsend whether the gun belonged to Wilson. Townsend's sister and a girlfriend also testified.
The jury might have elected, but didn't, to believe Schachte, instead of the government's crime lab witnesses. And even crediting the crime lab witnesses, the jury might still have found, quite credibly, that the evidence was insufficient to prove possession. But the jury convicted.
The most incriminating evidence of possession was undoubtedly the fingerprint. There were explanations available, fully consistent with innocence, which would have explained the print. Perhaps Wilson brushed his hand against the gun one day while making the bed. Merely touching would not be possessing it. Perhaps he momentarily grabbed the gun from the children, after finding them playing with it. The possibilities are endless. But after five-and-a-half hours of deliberation no juror found any of these possibilities sufficient to create a reasonable doubt as to Wilson's guilt, and we conclude that a jury could, within the province of rationality, convict Wilson based on the evidence.
The gun was found in an apartment where Wilson sometimes spent the night and where two of his children lived with their mother, who had been his girlfriend. The gun had a print on it and the jury could reasonably conclude that the print was Wilson's. The next step in the chain of proof is the most tenuous but still tenable. A rational jury could determine, on the basis of the evidence and beyond a reasonable doubt, that any gun in Townsend's apartment with Wilson's print on it had been "possessed" by Wilson. It was not improbable that objects found there might be his. 1 Indeed, an already convicted felon might be wise to keep a gun at his girlfriend's apartment rather than at his own, knowing that if the police were to find a gun in her apartment an innocent explanation might be possible, although difficult, but that if the gun was found in his apartment the suggestion of guilt would be nearly overwhelming.
In this very close case, a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Wilson makes several more arguments. Before trial, he moved to exclude all evidence that the police had arrived at Townsend's apartment with a warrant and arrested him, on grounds that such evidence would be "highly improper and prejudicial." The district judge denied the motion but limited the evidence at trial to testimony that the officers had a warrant for Wilson's arrest, went to Townsend's apartment to arrest him, and did arrest him. The government was not permitted to introduce evidence concerning the nature of the state charges, and no one introduced evidence as to the disposition of those charges. Wilson contends that admitting any of the evidence of the arrest at all was error.
We find no abuse of discretion in the judge's decision to let the government tell the jury about the warrant and the arrest. A jury that had not been told about the warrant would have been left scratching its collective head about what the police were doing at Townsend's apartment in the first place. Evidence of the warrant and the arrest were appropriately admitted to put the facts in context. And, in any event, Wilson's criminal past was not news to the jurors. In learning of the federal charge--felon in possession--the jury necessarily learned that Wilson had a prior conviction and, besides, heard that fact yet again after Wilson stipulated to a prior conviction and the stipulation was read aloud. The indictment read to the jury, however, correctly listed only one of Wilson's three prior convictions. See United States v. King, 897 F.2d 911 (7th Cir.1990).
Wilson also presses arguments relating to three instances of alleged prosecutorial misconduct. First, he complains that the government withheld his fingerprint cards until the day before trial. But he never filed a motion seeking earlier discovery nor for a continuance to allow Schachte more time. Schachte expressed a firm opinion at trial and did not indicate that he had had insufficient time to study the prints. Second, the government argued in closing that Schachte's testimony was entitled to little weight since he only examined the prints in the courthouse the morning of trial. Although a little incongruous, given the fact that the government held the prints until the day before trial, that comment did not so infect the proceedings as to deprive Wilson of a fair trial. United States v. Stillwell, 900 F.2d 1104, 1112 (7th Cir.1990). Third, the prosecutor referred in closing to a "bonding between Mr. Wilson and Ms. Townsend that was more than occasional and it indicated a closer relationship." Wilson objects to that remark. The basis for it, however, was obvious in the evidence.
Wilson's next argument concerns his sentence enhancement under the Armed Career Criminal Act. 18 U.S.C. Sec. 924(e)(1). Prior convictions count towards enhancement under Sec. 924 only if they were constitutionally obtained. Wilson argues that his were not.
Wilson had three prior convictions, the result of a bulk plea agreement that had disposed of the indictments against him in three state prosecutions at once. At the sentencing hearing in this case, he testified that his decision to take the state's package deal in those earlier cases had been coerced by his court-appointed counsel, Michael Clary, who, he said, had threatened to withdraw unless he agreed to plead guilty in all three cases. He also testified that Clary had said that there would be no more continuances and that no other lawyer would be appointed--in essence, that the price for refusing to bend and plead would have been an immediate trial, without counsel, post-haste and pro se.
Clary also testified at the sentencing hearing and described his...
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