U.S. v. Windom
| Decision Date | 24 March 1994 |
| Docket Number | No. 92-3544,92-3544 |
| Citation | 19 F.3d 1190 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. Granvel E. WINDOM, Defendant/Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen J. Liccione, Asst. U.S. Atty. (argued), Milwaukee, WI, for plaintiff-appellee.
John A. Birdsall (argued), Gonzalez & Saggio, Milwaukee, WI, for defendant-appellant.
Before CUMMINGS and CUDAHY, Circuit Judges, and LEINENWEBER, District Judge. *
Granvel Windom ("Windom") was found guilty on three of four counts of possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1). On the remaining count, he was convicted of the lesser included offense of possession. Windom was also found guilty on one of two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). On the remaining count, he was again found guilty of the lesser included offense of possession. Windom was also convicted of two of three counts of use or possession of a firearm in connection with drug trafficking crimes in violation of 18 U.S.C. Sec. 924(c)(1). On the remaining count, he was acquitted. Windom received a 410-month prison sentence. He appeals his convictions and his sentence.
On March 6, 1991, Milwaukee police officers executed a search warrant at a house located at 3262A North 10th Street in Milwaukee, Wisconsin. The house belonged to Robin Windom, Windom's niece. At the time of the search, Windom was in the house along with other family members. As the officers entered the building, Windom was seen leaving a room. In this room, the police found hypodermic syringes, razor blades, and other drug paraphernalia. The officers also found a white plastic baggie containing a chunk of heroin, along with 13 individual packets of heroin. When the police patted down Windom, they found a .32 caliber loaded Derringer in his right front pants pocket and $270.00 in United States currency. Based on the evidence discovered in this search, the State of Wisconsin brought criminal charges against Windom on March 8, 1991. Windom was charged with possession of a controlled substance while armed. In the federal prosecution, the narcotics discovered in this search provided the basis for Count Six; the discovery of the Derringer provided the basis for the firearms charge in Count Nine.
On June 10, 1991, Milwaukee police officers orchestrated a controlled purchase of cocaine from the house. Before providing the money for the transaction, the officers recorded the currency's serial numbers. Later the same day, the Milwaukee police executed another search warrant. Again, Windom was present. Even though Windom said that he was unemployed, the police found $305.00 in cash on Windom's person, including a $20.00 bill from the controlled cocaine purchase.
During the search of the house, the officers recovered a 7.65 caliber semi-automatic pistol and ammunition. In one of the rooms, the police came across a backpack. In the backpack, the police found money, a loaded .22 caliber revolver, and 12 bindles of cocaine and 27 bindles of heroin. The officers also found three chunks of brown heroin and six grams of cocaine. In the kitchen, officers discovered other drug paraphernalia. They recovered inositol and mannitol, cutting agents used to dilute cocaine. The police also found foil strips used in making bindles for individual dosage units of heroin. The narcotics discovered in this search provided the basis for the narcotics charge in Counts Four and Five. The discovery of the revolver provided the basis for Count Eight.
Windom's run-ins with law enforcement did not end there. On July 11, 1991, the Milwaukee police received a report that an individual in a green Cadillac was selling drugs at 2942 North 10th Place. When the officers arrived at the scene, they found Windom behind the wheel of a green Lincoln Continental with another individual in the front passenger seat. When the police searched Windom, they found 28 bindles of heroin and two bindles of cocaine. Windom also had $326.00 in cash and a beeper. When the officers checked the beeper, it displayed the telephone number of the passenger in Windom's car. In the federal prosecution, the discovery of the drugs provided the basis for the narcotics charge in Count Three.
The original state charges brought on March 8, 1991 were dismissed, and on July 14, 1991, Windom was recharged with possession of a controlled substance while armed, along with two additional counts of possession of a controlled substance with intent to deliver. However, on July 23, 1991, these state charges were dismissed without prejudice. 1
In the early morning hours of March 19, 1992, Windom again ran into law enforcement officers; however, this time the encounter involved agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF"). The ATF agents were looking for a fugitive. As part of their search, the ATF agents were on the alert for a specific automobile. The agents spotted this car, executed a U-turn, and came up behind the vehicle while it was stopped at a traffic light. When the light changed, the car raced off at approximately 60 to 65 miles per hour.
The chase ended when the car stopped in an enclosed parking lot. After stopping the car, the driver bent beneath the seat and ignored the agents' commands to put both hands on the steering wheel. Eventually, the driver, who turned out to be Windom, complied with the agents' directions and got out of the car.
While Windom was leaving the car, the agents noticed a piece of toilet paper fall from the door jamb area to the area between the driver's seat and the floor board. The toilet paper contained 24 bindles of heroin, some black tar heroin in chunk form, and five bindles of cocaine. The agents also found a loaded semi-automatic .9 millimeter Browning pistol protruding from underneath the seat. The agents then placed Windom under arrest. The drugs discovered in this search provided the basis for the narcotics charges in Counts One and Two. The discovery of the .9 millimeter Browning provided the basis for the weapons charge in Count Seven.
The following day, March 20, 1992, Windom faced federal charges of possession with intent to distribute heroin. The complaint arose from Windom's arrest the preceding day. On April 14, 1992, a federal grand jury returned a nine-count indictment against Windom. Windom was charged with four counts of possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) (Counts One, Three, Four and Six). He was charged with two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (Counts Two and Five). Finally, Windom was charged with three counts of possession of a firearm in connection with drug trafficking crimes in violation of 18 U.S.C. Sec. 924(c)(1) (Counts Seven, Eight and Nine). Windom moved to sever Counts One, Two and Seven from the other counts; however, the district court denied this motion. Accordingly, all counts were set for trial in one proceeding.
After a two-day jury trial, Windom was found guilty on three of the four counts of possession with intent to distribute heroin (Counts One, Three, and Four). On the remaining count (Count Six), he was found guilty of the lesser included offense of possession. The jury found Windom guilty on one of the two counts (Count Five) of possession with intent to distribute cocaine. On the remaining count (Count Two), he was found guilty of the lesser included offense of possession. Finally, Windom was found guilty on two of the three counts of use or possession of a firearm in connection with drug trafficking crimes (Counts Seven and Eight), and was acquitted on the remaining count (Count Nine).
On October 2, 1992, the district court sentenced Windom to 410 months imprisonment composed as follows. Because he was convicted of three counts of possession of heroin with intent to distribute (Counts One, Three, and Four), and one count of possession of cocaine with intent to distribute (Count Five), the district court sentenced Windom to 110 months imprisonment. Windom received twelve months for his convictions of the lesser included offenses of possession of cocaine and heroin (Counts Two and Six respectively). These sentences were to run concurrently. Windom was convicted of Counts Seven and Eight, the two counts of possession of a firearm in connection with drug trafficking crimes (18 U.S.C. Sec. 924). For the conviction on Count Seven, the district court imposed a sentence of 60 months. For the other count (Count Eight), the district court applied the sentence enhancement provision in 18 U.S.C. Sec. 924(c)(1). This provision provides that where there is a "second or subsequent conviction" of 18 U.S.C. Sec. 924(c)(1), the court is to impose a sentence of 20 years, or 240 months. Accordingly, the court sentenced Windom to 240 months for his conviction on Count Eight, the second count of possession of a firearm in connection with drug trafficking.
Windom appeals his conviction and his sentence on a number of grounds. First, Windom claims that the government's 9-month delay in bringing charges prejudiced him in his defense and violated his Fifth Amendment due process rights. Second, Windom argues that the district court erred in denying his motion to sever Counts One, Two, and Seven. Third, Windom attacks his convictions on Counts One, Two, Four, Five, Seven, and Eight, claiming that the evidence was insufficient to sustain his convictions. Finally Windom makes two arguments regarding his sentence. He claims that the district court erred in construing his conviction on Count Eight as a "second or subsequent conviction" under 18 U.S.C. Sec. 924(c)(1). He also contends that the sentence of 410 months constitutes cruel and unusual punishment in violation of the Eighth Amendment.
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