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United States v. Perkins

November 13, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DAMMARO D. PERKINS, ALSO KNOWN AS DEMARCO D. PERKINS, ALSO KNOWN AS DEMARIO D. PERKINS, ALSO KNOWN AS DEMARIO D. MORRIS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois. No. 05 CR 30137-David R. Herndon, Chief Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge

ARGUED SEPTEMBER 9, 2008

Before BAUER, CUDAHY and WOOD, Circuit Judges.

An Illinois jury convicted Defendant-Appellant Demmaro D. Perkins (Perkins) (also known as Demarco D. Perkins, Demario D. Perkins, and Demario D. Morris) of: (1) possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) possession with intent to distrib- ute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); (3) possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1); and (4) possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Perkins appeals his convictions, claiming evidence from his residence was unconstitutionally seized and the district court's decision to allow evidence of prior bad acts was improper pursuant to Federal Rule of Evidence 404(b). For the following reasons, we affirm.

I. BACKGROUND

On September 27, 2004, Perkins was released from the custody of the Illinois Department of Corrections (IDOC), subject to a signed Parole or Mandatory Supervised Release Agreement. Pursuant to this agreement, Perkins was to comply with various provisions, including, but not limited to, visits and searches of his person and residence by IDOC agents. On subsequent occasions, Perkins tested positive for drug use.

On July 27, 2005, IDOC parole agents and other law enforcement officers conducted an assigned compliance check on Perkins's residence. During the search of one bedroom, the agents recovered crack cocaine from the top of a television, a digital scale under the bed, a plastic bag containing sixteen pieces of crack cocaine, four plastic bags containing marijuana, a box of plastic bags and $1,030 in cash. Perkins denies knowledge and ownership of the crack cocaine found in his residence.

In a different bedroom, the agents recovered a loaded .38 caliber revolver (with one round missing), and a box of .38 caliber and .25 caliber ammunition. Perkins was arrested. At the St. Clair County Jail, the authorities recovered crack cocaine from Perkins's pocket. Perkins claims that he simply found the crack cocaine near a jail cell and picked it up.

On September 27, 2006, Perkins moved to suppress all evidence recovered from the search of his residence; the district court denied the motion on December 15, 2006.

On May 9, 2007, Perkins was charged in a second superseding indictment with: (1) possession with intent to distribute 5 grams or more of cocaine base, in the form of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) possession with intent to distribute less than fifty kilograms of a mixture or substance containing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); (3) possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1); and (4) possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

Perkins filed a motion in limine to exclude evidence that he was on parole on the date of the offenses charged. The government responded, and further provided notice that it might offer the following three convictions for cocaine-related offenses under Fed. R. Evid. 404(b):

(1) unlawful possession of a controlled substance (less than fifteen grams of cocaine); (2) unlawful delivery of a controlled substance (less than one gram of cocaine); and (3) unlawful possession of a controlled substance (less than fifteen grams of cocaine). Perkins objected on the grounds that the intended use of these convictions would unduly prejudice the jury by improperly suggesting his propensity to commit the crimes charged, as prohibited by Fed. R. Evid. 404(b). The district court ruled that it would allow the prior convictions for the sole purpose of establishing motive, intent, knowledge, and absence of mistake or knowledge. To limit any potential prejudicial effect, the district court took judicial notice of the prior convictions. The district court instructed the jury, at the time the evidence was received at trial, that the convictions could only be used for non-propensity purposes and must not be used to establish Perkins's propensity to commit the crimes charged. The district court noted that the probative value of the evidence clearly outweighed the prejudice to Perkins.

On the last day of trial, the government called Madison County Sheriff's Deputy Sergeant Dixon to testify regarding a 2002 arrest of Perkins that led to a 2003 conviction, one of the three prior convictions that had been judicially noticed by the district court.

Dixon testified that he witnessed Perkins place a piece of suspected crack cocaine in his mouth and refuse to spit it out. Over Perkins's objection, the district court allowed Dixon's testimony as highly probative of Perkins's knowledge of crack cocaine, and likewise of the absence of mistake or knowledge of ...


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