The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On May 26, 2009, a jury convicted Defendant Shariff Miller ("Miller") of possession of crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a), possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Miller now moves for a judgment of acquittal or, alternatively, a new trial. For the reasons stated, Miller's Motion for Judgment of Acquittal or New Trial is denied.
On April 21, 2008, local police executed a search warrant of Miller's residence in Zion, Illinois. During the search, officers seized over twenty five grams of crack cocaine, a .45 caliber semi-automatic handgun bearing the serial number 101256, a Remington Rand .30-06 caliber rifle bearing the serial number A7421511, a Sturm Ruger .44 caliber rifle bearing the serial number 102-54161 and ammunition for the firearms. Before trial, Miller unsuccessfully moved to suppress the firearms and guns, claiming that the affidavits submitted in conjunction with the application for a search warrant did not establish probable cause. The Court also denied Miller's motion to disclose the identity of the confidential informant who told law enforcement officers about the drugs and weapons inside of Miller's home.
At trial, Miller claimed that the drugs and firearms belonged to other people living in his home. The Government introduced evidence that officers found the crack cocaine packaged for distribution on Miller's bed and inside of a shoe box that contained Miller's important personal documents, such as bank records and legal correspondence. With respect to the firearms, the Government introduced evidence that officers found the handgun between the mattress and the box spring of Miller's bed and that they found both rifles inside a closet in the bedroom next to Miller's. The Remington rifle had Miller's fingerprints on it and Miller admitted that he had handled it.
After deliberating, the jury found that Miller possessed more than five grams of crack cocaine with the intent to distribute, that Miller possessed the handgun and the Remington rifle in violation of 18 U.S.C. § 922(g) and that Miller possessed the handgun in furtherance of a drug trafficking crime. Miller now seeks a judgment of acquittal or a new trial under Fed. R. Civ. P. 29(c) and 33, claiming: 1) insufficient evidence to support the jury's verdict; 2) the Court erred when it denied Miller's Motion to Suppress the drugs and guns seized during the execution of the search warrant; 3) the Court erred when it denied Miller's Motion for Disclosure of Identity of Informant; 4) the Court erred when it denied Miller's Batson challenge during jury selection; 5) the Court erred when it allowed a witness to testify that she saw Miller possess a handgun in February 2008; 6) the Court erred when it admitted evidence of Miller's crack cocaine dealing; 7) the Court erred by giving two specific jury instructions.
I. Motion for Judgment of Acquittal
A motion for judgment of acquittal under Rule 29 challenges the sufficiency of the evidence against the defendant. See Fed. R. Crim. P. 29. Such a motion should be denied if, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004). A conviction should not be overturned unless "the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt." United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (citing United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999)).
As a preliminary matter, each offense in the Superseding Indictment requires the common element of possession. For each offense, the "possession" element is satisfied by either actual or constructive possession. See United States v. Morris, - F.3d -, 2009 WL 2432002, at *3 (7th Cir. Aug. 10, 2009) (finding that same definition of "possession" applies to charges arising under 21 U.S.C. § 841(a)(1), 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(c)(1)). A person has actual possession over an item when he "knowingly has direct physical control over a thing, at a given time . . . ." United States v. Kitchen, 57 F.3d 516, 524 n.2 (7th Cir. 1995). In contrast, a person has constructive possession of an item even when he does not have immediate, physical control of it if he has ownership, dominion or control over the item. See Morris, 2009 WL 2432002, at *4 (citing United States v. Irby, 558 F.3d 651, 654 (7th Cir. 2009)). "Mere proximity to the drug [or] mere presence on the property where it is located . . . is insufficient to support a finding of possession." Id. (citing United States v. DiNovo, 523 F.2d 197, 201 (7th Cir. 1975)). However, when officers find contraband near the defendant's personal belongings, a jury may infer that the defendant had constructive possession based upon ownership or control. See Irby, 558 F.3d at 654 (defendant's state identification card, social security card and mail found in the same bedroom as marijuana and crack cocaine); United States v. Castillo, 406 F.3d 806, 813 (7th Cir. 2005) (constructive possession based on exclusive control over apartment existed when mail, bills and service orders indicated that that the defendant lived in the basement and no other evidence suggested anyone else lived there); Kitchen, 57 F.3d at 519-21 (defendant had constructive possession of guns when officers found defendant's clothing, jewelry and mail in same room in his girlfriend's home as guns).
The Court now turns to the evidence presented for each charge against Miller.
A. Count I - Possession of Crack Cocaine with the Intent to Distribute
Count I of the Superseding Indictment alleged that Miller knowingly and intentionally possessed five grams or more of mixtures containing cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1). To sustain a conviction under 21 U.S.C. § 841(a), the Government must prove beyond a reasonable doubt that the defendant: 1) knowingly and intentionally possessed cocaine; 2) intended to distribute it; and 3) knew the substance was cocaine. See United States v. Mendoza, 510 F.3d 749, 752 (7th Cir. 2007). Miller only contends that the Government has not satisfied its burden of proving that the drugs belonged to him instead of someone else living in his house.
Here, officers found the crack cocaine on a bed and in a bedroom closet in Miller's house. The Government introduced evidence that Miller stayed in the bedroom where officers found the crack. Additionally, with respect to the crack cocaine found in the closet, when officers opened shoe boxes stored in the closet, they found individually wrapped rocks of crack cocaine placed inside of a Starburst candy bag and a small scale. Each individually wrapped rock of crack had a tag that indicated the quantity and price. In addition to the candy bag with the crack and the scale, the shoeboxes held Miller's personal documents, including legal correspondence, checkbooks, recent letters from his bank regarding his checking account balance and closing documents from the purchase of his house. As in Irby, because officers found the drugs in a room that contained Miller's important personal documents, a reasonable jury could have inferred that Miller exercised ownership, dominion or control over all of the contents of the bedroom, including the crack cocaine found on the bed. Additionally, the officers found the candy bag containing more drugs and the scale in the same shoeboxes that Miller used to store those important documents. Therefore, a jury could have found that Miller knowingly and intentionally possessed the crack cocaine by exercising ownership, dominion or control over the drugs.
The Government also introduced evidence that Miller intended to distribute the crack cocaine. Each individually-wrapped crack rock had a tag that listed the quantity and price of that rock. Additionally, near the drugs, he had a small scale that he could use to weigh the drugs. Officers testified that the 25 grams of crack cocaine that they found in Miller's bedroom represented a distribution quantity because it was an amount more that 250 times a personal use amount. Chanda Borko ("Borko"), one of Miller's friends, testified that she overheard Miller speaking on the phone on April 21, 2008, the day that police executed the search warrant of Miller's home. During the conversation, she heard him tell the person on the other end of the phone to go to the side of the house "because traffic in front ain't cool," which could mean that Miller wanted to avoid having his customers attract police attention by coming to the front of the house to buy crack cocaine. Based on the price tags found on the seized crack, the scale, the distribution quantity of seized crack and Miller's phone conversation, a reasonable jury could have found that Miller intended to distribute the crack cocaine kept in his bedroom.
With respect to the knowledge element, besides the proximity of the drugs to Miller's personal documents, the Government introduced evidence that Miller knew what crack cocaine was because of his previous experience dealing crack cocaine in 2000. Therefore, a reasonable jury could have concluded that Miller knew that the substance in his bedroom was crack cocaine. Because the Government introduced sufficient evidence to satisfy the elements of the charged offense, Miller is not entitled to a judgment of acquittal with respect to Count I of the Superseding Indictment.
B. Count II - Possession of a Firearm by a Felon
Count II of the Superseding Indictment alleged that Miller possessed a handgun and two rifles in violation of 18 U.S.C. § 922(g). The jury convicted Miller of Count II, finding that he had possessed the handgun and the Remington rifle. To prove a violation of 18 U.S.C. § 922(g)(1), the Government must prove the following elements: 1) a prior felony conviction; 2) the defendant's possession of the firearm; and 3) the gun traveled across state lines before the defendant possessed it. See United States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007).
Here, Miller stipulated that he had previously been convicted of a felony offense. With respect to the possession of the weapons, the Government introduced evidence that officers found the handgun in Miller's bedroom, between the mattress and box spring of his bed. A few feet away from the handgun, officers found shoe boxes containing Miller's important personal documents, such as legal correspondence, his checkbook, correspondence from his bank regarding his checking account and documents relating to the purchase of his residence. Additionally, Borko testified that in February 2008, approximately two months before the search of Miller's residence, she had observed Miller in possession of the same handgun that officers seized from his bedroom. Based on that evidence, a reasonable jury could have determined that Miller had the ability to exercise his dominion and control over the handgun.
With respect to the Remington rifle, the Government introduced evidence that Miller's fingerprints appeared on the weapon. Although Miller explained that he held the gun only briefly to inspect it while determining if he wanted to purchase the rifle, his admission that he held the rifle was sufficient for a jury to determine beyond a reasonable doubt that he possessed the Remington rifle. See United States v. Matthews, 520 F.3d 806, 810 (7th Cir. 2008) (finding that Congress enacted § 922 to prevent convicted felons from ...