USA. v. Amerson

• Decision Date: 19 July 1999
• Docket Number: No. 97-4097,97-4097
• Citation: 185 F.3d 676
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT AMERSON, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 676

185 F.3d 676 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT AMERSON, Defendant-Appellant.

No. 97-4097

United States Court of Appeals, Seventh Circuit

Argued May 21, 1998

Decided June 23, 1999

Rehearing Denied July 19, 1999.

Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 97-10013--Michael M. Mihm, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, Coffey and Evans, Circuit Judges.

COFFEY, Circuit Judge.

On July 15, 1997, the defendant-appellant Robert Amerson ("Amerson") was convicted before a jury of possession of cocaine base with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1). On appeal, Amerson argues that the trial court committed error: 1.) in refusing to allow the introduction of the affidavit of Timothy Heard; 2.) in refusing to find that the prosecutor improperly distorted the burden of proof during closing argument; 3.) in denying Amerson's request for a Franks hearing; and 4.) in refusing to hold that the evidence was insufficient to support a conviction. We affirm.

I. BACKGROUND

At approximately 7:30 p.m. on February 11, 1997, officers of the City of Peoria, Illinois, Police Department executed a search warrant at an upstairs unit of a two-story, multi-unit apartment building located at 1418 N.E. Adams Street, Peoria, Illinois. Three police officers, Officers Mumaw, Mitchell, and Anderson, approached the second floor unit by ascending a flight of stairs leading to a landing area just outside the apartment's kitchen door. The landing area outside the kitchen door was monitored with a "sensor light," and as the officers ascended the stairs and approached the door, the light activated. Officer Mumaw knocked on the door and announced loudly "Police, search warrant!", and at this time, the apartment's lessee, Jesse Tolliver ("Tolliver"), appeared at a window next to the kitchen door and shouted "It's the police!" and disappeared from view. At the same time, the officers heard the sound of people running inside the apartment, and they forced open the door and entered the apartment.

Following a plan established prior to the raid, Officer Mumaw ran into the kitchen, down a hallway, and into a bedroom located in the rear corner of the apartment. At trial, Mumaw testified that when he arrived in the bedroom, he observed a black male identified as Timothy Heard ("Heard"), along with two black females, Sharon Parker and Angela Hill. He saw Heard run to the bedroom window, which was covered with a large, heavy curtain. According to Mumaw, it appeared that Heard "tr[ied] to punch a small 35 millimeter canister¹ out the window, but it didn't make it because the curtain didn't go out the window . . . ." As Heard was punching at the curtain and trying to dispose of the film canister, Officer Mumaw tackled him. A second officer, Mitchell, entered the room and assisted Mumaw in placing Heard in custody, and at this time, Mumaw observed the canister lying on the floor inside the bedroom near the window adjacent to the curtain. Inventory and analysis of the contents of the film canister revealed seven individually wrapped, small rocks of cocaine weighing approximately 2.7 grams total.

At the time Heard struck and broke the glass in the window through the heavy curtain in the second-floor bedroom, three other officers were stationed outside and were standing directly below the window, Officers Moore, Kirwan, and Patterson. Officer Patterson "heard glass breaking from above [him]. At that time [he] looked up and saw pieces of glass falling down just in front of [him]." Officers Moore, Kirwan, and Patterson immediately searched the ground with their flashlights and found nothing but pieces of a broken window glass. The three officers then proceeded up the stairs in order to help the officers inside with the search of the apartment.

After arresting Heard and securing the other occupants of the apartment, Officer Mitchell, the lead officer, stationed himself at the front door and proceeded to assist the officers in the conducting of a "sting" operation upon those individuals who they anticipated might be appearing at the front door to sell or purchase drugs. Between 7:30 p.m. and 8:30 p.m. three people came to the door. The first group, two black females, arrived and asked for Tolliver. Officer Mitchell refused to allow them entry, and they left. The other individual was a white female, who was arrested by Officer Mitchell after attempting to purchase a "look-alike"² drug for $50.

At 8:50 p.m., approximately one hour and twenty minutes after the warrant entry into the apartment, another officer, Officer Couve, assigned to maintain surveillance and positioned across the street from the apartment, radioed the officers in the apartment that a black male was approaching the apartment on foot. The officers inside the apartment waited until they heard a knock, whereupon Officer Mitchell queried the person knocking, "Who is it?" The person (Amerson) outside the kitchen door responded "It's me, Rob," at which time Tolliver, under arrest and inside the apartment, shouted "Rob, it's the police!", alerting the officers to open the door. Officer Mitchell testified that when he opened the door he saw Amerson, illuminated by the sensor light, standing on the porch just three feet away, and holding a plastic bag in his hands that contained a white substance. According to Officer Mitchell, upon observing the officers, Amerson immediately "thr[ew] his hands in the air above his head, at which time this object [the plastic bag] came out of his hand and went over his head, off the landing and onto the ground behind him." Officers Moore, Mumaw, and Mitchell "reach[ed] out and grab[bed] Mr. Amerson and . . . pull[ed] him inside the apartment and after a struggle he [was] handcuffed" and arrested. Officer Moore then went "downstairs and . . . look[ed] outside on the grass for what [he] believed at the time to be cocaine thrown from [Amerson's] hands and that's what [he] found laying on the ground." Officer Moore located the cocaine "fairly quickly" in a location he described as follows: "if you just walked out of the kitchen and onto the landing area and looked straight down over the railing, you could see the object in the grass directly in front of the porch." Officer Moore, who was using his flashlight to search, discovered a plastic bag containing a white substance, which the police seized and was later analyzed and found to be 6.4 grams of crack cocaine.

The defendant Amerson was arrested and charged with possession of cocaine base with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1). Before trial, the defendant filed a motion with the court and requested a Franks hearing, arguing that the investigating officer's affidavit in support of a search warrant was based on the false statement of an informant who had claimed to have seen Amerson at the apartment on a prior occasion during a time frame Amerson denied being at the apartment. The court denied the motion, holding that Amerson failed to establish that the investigating officer's affidavit was false and ordered the parties to proceed to trial. At trial, Amerson called Heard to the witness stand, and Heard invoked his Fifth Amendment privilege and refused to testify. In response, the defense counsel proffered Heard's signed affidavit, which stated:

I Timothy Herd [sic] do solemly [sic] swear that the statement I'm about to sign is correct and is given at [sic] my own free will. On February 11th 1997 between 6:30-7:30 p.m. at 1418 N.E. Adams I heard police enter the apartment. Being in possession of two packages of cocaine. I ran to the back bedroom and attempted to dispose of them. One landed inside. Later one was found outside. Robert Amerson was unware [sic] of any of this, for he was not yet present, but was later charged.

The government objected to the admission of the affidavit, contending that it was hearsay under Fed. R. Evid. 802 since it was made out of court and was offered for the truth of the matter asserted. The defense counsel responded that the document was admissible hearsay under Fed. R. Evid. 804(b)(3) because it was a statement against Heard's penal interest. The judge refused to accept the affidavit, ruling that Rule 804(b)(3) requires that the affidavit be supported by corroborating circumstances demonstrating the truth of the out of court assertion and that Amerson had failed to demonstrate the existence of corroborating circumstances.

The defense also objected to the prosecutor's statement during closing argument: "[w]hat you've got here are vice and narcotics officers-- experienced drug enforcement officers whose job it is to arrest dope peddlers . . .", and "[t]hose officers all indicated that it was part of their duties to rid our streets of cocaine . . . ." Amerson's counsel argued that the prosecutor's statement amounted to vouching for the police officer witnesses. The judge sustained the defendant's objection. Later in the closing argument, the prosecutor stated: "[b]ottom line here, ladies and gentlemen, is this. Who is telling the truth and who is lying here . . . . You simply cannot believe the testimony of these police officers and believe the defendant's testimony at the same time." Amerson's counsel once again objected, stating that the prosecutor was distorting the burden of proof. The trial judge overruled this objection and found that the prosecutor's statements were appropriate since "there was direct testimony from each side" regarding whether Amerson threw the plastic bag of cocaine.³

At sentencing, the trial judge determined that Amerson was a career offender⁴ (pursuant to U.S.S.G. sec. 4B1.1) and had a guideline sentencing range of 360 months to life imprisonment. Nevertheless, the judge departed downward because Amerson, who was 52 at the time of sentencing, had a serious heart condition...