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United States v. Morris

August 10, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LONNIE D. MORRIS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 06 CR 50007-James B. Zagel, Judge.

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

ARGUED JUNE 2, 2009

Before POSNER, RIPPLE, and KANNE,Circuit Judges.

In 2007, a jury convicted Lonnie Morris of drug and firearm offenses. On appeal, he challenges the sufficiency of the evidence, the jury instructions, and the admission of certain expert testimony. We affirm his conviction.

I. BACKGROUND

In late May 2005, authorities began investigating suspected drug trafficking activities at 707 Albert Avenue, a residence on the west side of Rockford, Illinois. The investigation was conducted by the Metro Narcotics Unit, a joint enterprise between the Rockford Police Department and the Winnebago County Sheriff's Department. Sergeant Marc Welsh supervised the MNU.

Between five and ten times from May 22 to June 2, Richard Gambini, a detective with the MNU, surveilled 707 Albert. The house was leased by Tamica Wilson, who lived there with her two children. On at least five occasions, Gambini observed the defendant, Lonnie Morris, on or near the premises. Morris was frequently seen coming and going in a maroon-colored 1995 Chrysler Cirrus.

Early in the morning on June 2, Gambini and a colleague searched trash bags that were left on the curb in front of 707 Albert. Inside, they found approximately three hundred plastic sandwich bags with the bottoms cut off; remnants of a package of Dormin, an over-the-counter sleeping pill commonly used to "cut," or dilute, heroin for sale; and a handful of documents sent to Lonnie Morris's attention at a different address.

Later that day, Gambini returned to 707 Albert with a search warrant for both the house and the Chrysler Cirrus. Gambini drove by the home and elected not to execute the warrant at that time because the Cirrus was not parked at the house.

Within minutes, Gambini found the Cirrus in a liquor store parking lot a short drive from 707 Albert. Morris was in the driver's seat, alone in the car. As Gambini watched, an individual approached Morris's car window, where the two engaged in a short conversation and exchanged unidentifiable items.

Following this first exchange, Morris drove the Cirrus out of the parking lot. Gambini followed. After driving for several blocks, Morris pulled the car to the curb near an intersection. The scene from the liquor store repeated itself. A different individual approached the car, spoke with Morris through the driver's window, and engaged in a hand-to-hand exchange with Morris. Again, Gambini was unable to identify the items that the men exchanged.

From there, Morris, with Gambini still on his tail, proceeded to 707 Albert. Morris parked the Cirrus in the driveway but remained in the car. A short time later, a second car pulled into the driveway behind the Cirrus. The driver of the second car emerged and walked to the Cirrus, where he had a short discussion with Morris. For a third time, Morris handed something to the individual through the driver's window, received something in return, and the man departed. Morris then entered the house.

At that point, Gambini summoned his team to execute the warrant on 707 Albert. Within ten minutes, the MNU raid squad arrived and entered the premises through its back door. Gambini, who was the last one through the door, heard someone running up a set of stairs located to his right that led to the home's basement. He moved to the top of the stairs and observed Morris scaling the last few steps before running through the door and out of the house. An officer stationed outside tackled Morris.

In the basement of the house, officers found a washer and dryer, a cellular telephone, a razor blade, a digital scale, and two empty plastic sandwich bags. In addition to random debris, the basement contained a mattress leaned against a corner wall. Behind the mattress, the search team found a one-gallon plastic bag containing a chunky, brown, powdery substance that was later identified as 23.6 grams of heroin. Officers searched the entire residence but found no tangible evidence linking Morris to the house.

Police also discovered pertinent evidence inside the Chrysler Cirrus. In the door's handle well, Detective Gambini found a small plastic bag, inside of which were two smaller plastic bags. The two smaller plastic bags contained an off-white powdery substance, later identified as a total of 0.09 grams of a mixture containing heroin. Underneath the bag with the heroin, Gambini found another plastic bag, in which he recognized four pink Dormin tablets. Like many cars, the Cirrus had a storage compartment in the lower portion of the driver's door. In that compartment, Gambini observed a document and a Jennings .22-caliber handgun. Further inspection revealed that Morris's name was on the document.

The search proceeded to 707 Albert's detached garage. There, Gambini discovered two vehicles, one being a Lincoln Town Car. The Town Car's trunk was ajar, and inside Gambini found three plastic bags filled with a total of nearly $5,000 in cash. Subsequent analysis revealed Morris's fingerprints on one of the bags. Using a distinctive red key chain found inside the house, Gambini opened the Town Car, where he found a document from the Department of Public Aid addressed to Lonnie Morris.

Following the search, Detective Gambini and a colleague, Detective Rossow, escorted Morris to jail. According to Gambini's testimony, Morris told the two detectives while in transit: "This case is dropped. You had no probable cause to get in my house."

Morris was subsequently released. Four days later, authorities pulled him over for driving without wearing a seat belt. Detective Gambini came to the traffic stop, where he observed and seized the same distinctive red key chain that he had used to open the Town Car during the search of 707 Albert.

In February 2006, a federal grand jury returned an indictment charging Morris with three offenses. Count One alleged that Morris knowingly and intentionally possessed, with intent to distribute, 23.7 grams of a substance containing heroin, thereby violating 21 U.S.C. § 841(a)(1). Count Two charged Morris, a convicted felon, with possessing a firearm. See 18 U.S.C. §§ 922(g)(1), 924(e)(1). Count Three averred that Morris had knowingly possessed a firearm in furtherance of the drug trafficking crime alleged in Count One, a violation of 18 U.S.C. § 924(c). Morris was arrested shortly thereafter.

A jury trial was held in January 2007. The government presented evidence of the preceding facts, as well as several expert witnesses, including Sergeant Welsh, who testified to common practices observed in the area drug trade. The jury found Morris guilty of all three counts contained in the indictment. The court later sentenced Morris to a total of 300 months in prison. Morris now appeals the conviction.

II. ANALYSIS

Morris presents three arguments on appeal. First, he contends that the evidence was insufficient to support his conviction. Specifically, he argues (1) that the government failed to prove that he constructively possessed either the drugs or the gun, and (2) that if he did possess the gun, the evidence did not support the jury's finding that such possession was "in furtherance of" a drug trafficking crime. Second, and relatedly, Morris asserts that the district court erred in refusing to give a proffered jury instruction defining the term "in furtherance of." Finally, Morris challenges the district court's decision to admit Sergeant Welsh's expert testimony concerning distributable quantities of heroin. Although we see some merit in these challenges, none are ultimately persuasive.

A. Sufficiency of the Evidence

A defendant attacking the sufficiency of the evidence used to convict him " 'faces a nearly insurmountable hurdle.' " United States v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995) (quoting United States v. Teague, 956 F.2d 1427, 1433 (7th Cir. 1992)). To succeed, Morris must show that, based on the evidence presented at trial, no rational juror could find guilt beyond a reasonable doubt. United States v. Luster, 480 F.3d 551, 555 (7th Cir. 2007); United States v. Hach, 162 F.3d 937, 942 (7th Cir. 1998) ("Only if the record is devoid of evidence from which a jury could find guilt will we reverse."). In conducting this analysis, we view the evidence in the light most favorable to the government. United States v. Richardson, 208 F.3d 626, 631 (7th Cir. 2000).

Morris's initial sufficiency of the evidence arguments relate to his possession of the drugs and firearm. His remaining challenge is that the evidence was insufficient to find that he possessed the firearm "in furtherance of" a drug trafficking crime.

1. Constructive Possession

All three counts on which the jury convicted Morris- possessing heroin with intent to distribute, see 21 U.S.C. § 841(a)(1); possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A); and possessing a firearm as a convicted felon, see id. § 922(g)(1)- involve one common element: possession. Morris now challenges this element with respect to each of his three convictions.

For each of these offenses, possession can be either actual or constructive. See United States v. Irby, 558 F.3d 651, 654 (7th Cir. 2009) (applying § 841(a)(1)); United States v. Castillo, 406 F.3d 806, 812 (7th Cir. 2005) (applying § 924(c)(1)); United States v. Caldwell, 423 F.3d 754, 757-58 (7th Cir. 2005) (applying § 922(g)(1)). Constructive possession is a legal fiction whereby an individual is deemed to "possess" contraband items even when he does not actually have immediate, physical control of the objects, i.e., the individual "does not possess them in a literal sense." United States v. Windom, 19 F.3d 1190, 1200 (7th Cir. 1994); see also United States v. Kitchen, 57 F.3d 516, 524 n.2 (7th Cir. 1995) ...


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