USA. v. Smallwood
| Decision Date | 26 August 1999 |
| Docket Number | No. 98-3666,98-3666 |
| Citation | 188 F.3d 905 |
| Parties | (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Leon Smallwood, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois. No. 97 CR 30055--Paul E. Riley, Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Before Bauer, Flaum, and Kanne, Circuit Judges.
Leon Smallwood was convicted of conspiracy to distribute cocaine base, distribution of cocaine base, and being a felon in possession of a firearm. He was sentenced to life in prison. On appeal, Smallwood challenges his convictions and his sentence. We affirm.
In 1996, Nicole Generally lost all her belongings in an apartment fire and moved to the Dooley Housing Projects in Alton, Illinois. In need of money, Generally turned to Smallwood for help. In March or April of 1996, the two agreed that Smallwood would front Generally crack cocaine for resale. Initially, Smallwood charged Generally $1,325 per ounce of crack. Eventually, however, Smallwood reduced the price to $1,250. In addition to supplying Generally with crack, Smallwood supplied her with advice (such as how much crack to provide for $50), and a scale. The assistance flowed in both directions. For example, Generally allowed Smallwood to sell crack from her apartment, and on one occasion, she held a bag containing three ounces of crack for Smallwood when he feared that he would be discovered by the police.
Smallwood and Generally's arrangement came to an end on September 6, 1996, when the Alton police raided Generally's apartment. During their search of the apartment, the police found 2.6 grams of crack that Smallwood had delivered to Generally on September 4. Generally was charged in state court and taken to the Madison County jail, where she stayed for fourteen months. Smallwood visited her in jail and got her a lawyer. At Smallwood's trial, however, Generally testified for the government, admitting that she hoped that her testimony would win her a lighter sentence.
Generally was not the only person in business with Smallwood. On December 10, 1996, two informants wearing wires made a controlled purchase of crack cocaine from Duane Leady. During the transaction, police heard Leady tell the informants that he needed to get the drugs from Smallwood's house. The police then observed Leady leave his home and enter the home of Smallwood's mother. While Leady was inside, Smallwood arrived. Eventually, Leady emerged and delivered a quarter ounce of crack to the informants. Leady subsequently agreed to cooperate with the police, and told them that Smallwood sold him the crack that he delivered to the informants.
On January 7, 1997, Leady made a controlled purchase of crack from Smallwood while wearing a wire. When Leady contacted Smallwood, Smallwood told Leady to go to Carl McKinney's apartment at 309 Spring Street. Leady had seen Smallwood at this apartment several times in the past. Therefore he was able to tell police that McKinney's apartment was one of four apartments in the building, and was located on the bottom floor on the left. He also told the police that Smallwood lived in an apartment upstairs in the same building. When Leady went to McKinney's apartment as instructed, Smallwood sold him a quarter ounce of crack. The police observed Smallwood's car outside the building during the transaction. Based on these events, the government filed a sealed complaint against Smallwood on June 23, 1997, and an arrest warrant was issued.
On July 5, 1997, the police observed Smallwood come out the front door of 309 Spring Street and then re-enter the building when he saw them. Acting on the arrest warrant, the police entered the building, knocked on McKinney's door, and announced their presence. Believing that Smallwood might be inside, they entered the unlocked apartment. No one was there, but there was crack cocaine, a scale, and some cash in plain view. While in McKinney's apartment, the police heard movement that suggested that there was someone in the apartment above them. They went upstairs, announced their presence, stated that they had an arrest warrant, and entered Smallwood's apartment through its open door. An open cardboard box containing a semi-automatic handgun with live rounds in the magazine lay on the floor of one of the bedrooms. Police found Smallwood hiding in the closet in another bedroom and placed him under arrest.
On July 7, 1997, a magistrate judge ordered that Smallwood be temporarily detained at the Fayette County Jail. While in jail, Smallwood consulted Clifton Bernard, another inmate and a jailhouse lawyer, about his predicament. Smallwood told Bernard, in the presence of two other detainees named Victoriano Garcia and Don Weidenburner, that the drugs in McKinney's apartment were his and that he was using the apartment as a stash house. However, he stated that he did not think that the police would be able to prove that the drugs were his because he was not in the apartment when the drugs were found. Smallwood also told Bernard that the gun in the upstairs apartment was his, but that the police would not be able to prove it because the apartment was in his sister's name and his clothes were all at his mother's house being laundered. Bernard, who is from California, was in custody on federal drug conspiracy charges. He ultimately pled guilty and agreed to testify truthfully in return for a sentence recommendation from the government.
On September 18, 1997, a grand jury sitting in the Southern District of Illinois returned a six- count superseding indictment charging Smallwood with one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846, three counts of distribution of crack cocaine, in violation of 21 U.S.C. sec. 841(a)(1), one count of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. sec. 922(g)(1).
Before trial, Smallwood filed a motion to suppress the physical evidence that had been seized from 309 Spring Street. He claimed that the seizures were illegal because they had not been made pursuant to a search warrant. The district court found that the police lawfully pursued Smallwood into the building in an attempt to execute the arrest warrant, and then lawfully seized the contraband which was in plain view. Accordingly, the court denied Smallwood's motion to suppress the evidence.
Smallwood also asked the district court to suppress the statements that he made to Bernard. He claimed that government agents had instructed Bernard, Garcia, and Weidenburner to engage him in conversation, and had promised them unspecified benefits in exchange. Bernard, Garcia, and Weidenburner testified that they had been given no such instructions, and that they had not attempted to elicit information from Smallwood. The district court found that Smallwood had voluntarily struck up a conversation with the other detainees, and denied the motion to suppress.
With these motions resolved, jury selection began. However, when the venire was brought into the courtroom, Smallwood's attorney moved to discharge it on the grounds that it did not represent a fair cross-section of the community because it contained only one black person. The jury administrator was summoned. She testified that the jurors had been randomly selected using the voter registration list in accordance with the plan of the district court. The district court denied the motion to discharge the venire, and jury selection continued.
When the government peremptorily struck the only black member of the venire, Smallwood's attorney challenged the strike. In response, the government offered the following race-neutral reasons for the strike: (1) the venire member was a teacher, and teachers tend to be sympathetic to defendants; (2) the venire member said that Smallwood looked familiar and might have been a student at the school where the venire member taught; (3) while answering questions, the venire member leaned back and interlocked his hands behind his head, conveying an attitude of superiority; and (4) the venire member stated that he had friends in law enforcement and that they were "just as much into illegal stuff" as the people they investigated. The district court accepted these explanations and allowed the strike.
Smallwood's attorney was also unhappy that the district court denied his motion to conduct voir dire for longer than the twenty minutes normally allotted, and to question individual jurors. Although the district court orally denied the motion, the court allowed Smallwood's attorney to conduct voir dire for approximately thirty minutes and to ask individual jurors follow-up questions. Smallwood's attorney did not request additional time when the district court informed him that his time was up.
On June 25, 1998, three days after Smallwood's trial began, the district court granted Smallwood's motion for a judgment of acquittal on the possession count, but denied it as to the other counts. The jury returned guilty verdicts on all five remaining counts. On October 2, the district court sentenced Smallwood to life in prison. Smallwood appeals.
Smallwood contends that the district court should have suppressed the physical evidence seized from 309 Spring Street because it was seized in violation of his Fourth Amendment rights.1 We will not disturb a district court's denial of a motion to suppress unless the decision was clearly erroneous. See United States v. Sewell, 942 F.2d 1209, 1211 (7th Cir. 1991). A court's finding is clearly erroneous when "the reviewing court is left with the definite and firm conviction...
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