United States v. Howard

• Decision Date: 17 July 2012
• Docket Number: No. 11–1492.,11–1492.
• Citation: 687 F.3d 13
• Parties: UNITED STATES, Appellee, v. Deshawn HOWARD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

687 F.3d 13

UNITED STATES, Appellee,

v.Deshawn HOWARD, Defendant, Appellant.

No. 11–1492.

United States Court of Appeals,First Circuit.

Submitted April 3, 2012.

Decided July 17, 2012.

Michael J. Sheehan on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.

Before HOWARD, LIPEZ, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

During the execution of an arrest warrant, police found a gun and drugs floating in a toilet tank and they pinned the blame on Deshawn Howard. Alleging improperly admitted evidence, erroneous jury instructions, and insufficient evidence, Howard now appeals from his gun and drug possession convictions. Concluding that there is no reversible error, we affirm.

BACKGROUND

We outline the underlying incident and the travel of the case, saving additional details for our analysis of the purported errors. Since Howard has lodged a charge against the sufficiency of the evidence, all facts are recited in the light most favorable to the verdict. See United States v. Alverio–Meléndez, 640 F.3d 412, 416 n. 1 (1st Cir.2011).

On June 10, 2009, police in Springfield, Massachusetts received a tip that Deshawn Howard, a suspected gang member with an outstanding arrest warrant for armed assault with intent to murder, was at a house located at 193 Nottingham Street. A group of approximately eight officers, some accompanied by police dogs and armed with shotguns, were quickly assembled and dispatched to that address. Officers arrived at 193 Nottingham Street, which constituted one side of a side-by-side duplex, and surrounded it.

Several officers approached the front door, catching sight of two individuals silhouetted in the living room window. One of the individuals disappeared and officers started pounding on the door, announcing themselves as police, and demanding entry. Almost immediately Cheryl Knowles opened the door yelling something to the effect of: “Don't shoot. I'm coming out.” Knowles, it was later learned, had rented and resided at 193 Nottingham Street for approximately ten years. She lived there with her twenty-five-year-old son Lyle Treadwell, who was a friend of Howard's.

Knowles was ushered outside and officers headed into the house to locate Howard. Howard had moved to the rear of the house and he was spotted peering out a small bathroom window by officers stationed in the back yard. Officers raced through the house but did not encounter Howard. Some officers near the bathroom noted a stairway and followed it into the basement. Howard was not down there but a door leading to the basement of the adjoining duplex had been kicked in. Officers found Howard in that adjoining basement crouched behind a washing machine. A scuffle ensued and Howard was taken into custody.

Howard was brought outside where he was treated for a head laceration sustained during the fracas. Once the arrest had been successfully executed, things calmed down and weapons were stowed. Knowles was presented with a consent to search form, which she signed. After securing Knowles' written permission, officers entered the house and performed an organized search. Officer Edward VanZandt searched the bathroom where Howard had been previously spotted.¹ On the bathroom vanity VanZandt found a cell phone (later determined to be a pre-paid phone with pictures of Howard on it) and a burning cigarette (later determined to contain Howard's DNA). VanZandt lifted the lid on the toilet tank and discovered a loaded semiautomatic handgun and a large bag of individually wrapped crack cocaine rocks floating on top of the water. In the kitchen, other officers discovered more contraband on the kitchen table—another bag of individually packaged crack cocaine rocks, numerous unused plastic bags, and two digital scales. Howard was transported to police headquarters where $200 in cash was found on his person.

A federal grand jury returned a three-count indictment against Howard, charging him with possession with intent to distribute cocaine base (Count 1), 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm (Count 2), 18 U.S.C. § 922(g)(1), and possession of a firearm in furtherance of a drug trafficking crime (Count 3), 18 U.S.C. § 924(c)(1)(A). The indictment also included an aiding and abetting charge for Counts 1 and 3.

Prior to trial Howard moved to suppress the gun, drugs, and other evidence seized by police, arguing lack of probable cause, lack of a search warrant, and lack of consent. Additionally, he argued that the waiver completed by Knowles was obtained by coercion. Following a three-day evidentiary hearing, the district court denied the motion in an oral decision. Among other things, the judge found that Knowles willingly and knowingly consented to the search and the search did not begin until consent was given.

On December 6, 2010, the case proceeded to trial. After five days of testimony and a couple of hours of deliberation, the jury found Howard guilty on all counts. He was sentenced to thirteen years and three months in prison. Howard now appeals, taking a threefold approach. First, he claims officers searched the home prior to obtaining Knowles' consent and therefore the district court erred in denying his motion to suppress. Next, Howard argues there was insufficient evidence to support the district court's jury instructions on joint possession and aiding and abetting. Finally, he asserts there was insufficient evidence to support a finding that he possessed the gun and drugs.

ANALYSIS

A. Motion to Suppress

Review of a denial of a motion to suppress is bifurcated. We review findings of fact for clear error and legal conclusions de novo. See United States v. Tiem Trinh, 665 F.3d 1, 9 (1st Cir.2011). “A clear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made.” United States v. Brake, 666 F.3d 800, 804 (1st Cir.2011) (internal quotation marks omitted).

Howard challenges the court's decision to admit the gun, drugs, and drug supplies into evidence claiming that the contraband was the product of an unlawful search. Howard's argument is a strictly factual one. He takes aim at the court's finding that the search occurred after Knowles gave consent. ² In support, he singles out VanZandt's search of the bathroom. By way of a brief background, we present VanZandt's chronology, as established by his trial testimony: VanZandt entered the home behind the initial wave of officers; he traveled through the living room, into the kitchen, and then into the bathroom; he then went to the basement where Howard was already in cuffs; he then conducted a search of the bathroom.

Howard argues that VanZandt's testimony establishes that these events took place in immediate succession. And, by Howard's estimate, twenty minutes elapsed between Knowles being removed from the home and her consenting to the search. Thus Howard theorizes that the search must have occurred before Knowles gave consent. In further support of his challenge, Howard points to a photograph that another officer took of his half burnt cigarette, arguing that the cigarette would have burnt further down and there would be more ashes if it had been left smoking for twenty minutes.

Whether Howard's theorem on the chronology of VanZandt's actions is or is not accurate, we need not say. VanZandt did not testify at the suppression hearing; he only testified at trial. Similarly, the photograph of the cigarette was only introduced at trial. Although Howard acknowledges this point, he nonetheless urges us to consider the testimony and photograph in our review of the district court's denial of his motion to suppress and, in particular, the court's factual finding on the search's timing. While it is true that we may consider evidence adduced at trial when reviewing the denial of a motion to suppress, we may do so only if the defendant renewed his suppression motion at trial. See United States v. Scott, 566 F.3d 242, 245 (1st Cir.2009); United States v. de Jesus–Rios, 990 F.2d 672, 675 n. 2 (1st Cir.1993). Howard did not renew his motion at trial and so our review does not include VanZandt's testimony or the photograph. Our examination of the propriety of the suppression ruling is limited to the evidence presented at the suppression hearing. See Scott, 566 F.3d at 245.

At the suppression hearing, documentary evidence, in the form of the grand jury transcript, Knowles' statement to police, her consent waiver, and photographs of the house, was introduced. Additionally, Knowles and six Springfield police officers testified. The officers were those involved in arresting Howard, obtaining Knowles' consent, searching the house, booking Howard, taking Knowles' statement, or some combination of these things. This evidence, taken as a whole, supports the court's finding that consent preceded the search.

Two officers testified that the search took place after Knowles gave consent. Though he could not recall the particulars of how he was told, one officer explained: “I was notified the [consent waiver] was signed and we were moving into the house. We moved into the house.” Knowles, for her part, testified that while she was in the yard signing the consent waiver, some officers (who at this point had Howard out of the house and in custody) were already in the house. The two stories are not inconsistent. As the district court explained, officers were engaged in a protective sweep of the house at that time, looking for any individuals that might be hidden. There is no indication that they were lifting up toilet tank lids or otherwise searching the home for contraband.

The district court's conclusion that officers did not start searching until Knowles gave consent was not clearly erroneous. The motion to suppress was properly denied.

B. Jury Instructions

Howard's contention to this court is the same as it...