United States v. Tommy Webster , 775 F.3d 897 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1927
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMY WEBSTER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:11-cr-00067-RLM-1— Robert L. Miller, Jr., Judge.
ARGUED SEPTEMBER 9, 2014 — DECIDED JANUARY 5, 2015
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. On May 9, 2012, Tommy Lee
Webster, Jr. was charged in a superseding indictment with five
counts, including: possession with intent to distribute cocaine
in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in
furtherance of a drug trafficking offense, in violation of
18 U.S.C. § 924(c); manufacture of marijuana, in violation of
21 U.S.C. § 841(a)(1); possession with intent to deliver cocaine
2 No. 13-1927
base, in violation of 21 U.S.C. § 841(A)(1); and possession of a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). A jury convicted him on all counts, and he was
sentenced to 168 months’ imprisonment followed by three
years of supervised release. Webster now appeals that convic-
tion.
Webster’s arrest occurred on March 11, 2011, when police
officers went to a residence at 816 Almond Court in South
Bend, Indiana, in response to an anonymous tip. As two
officers proceeded to the front door, a third officer heard a
door close and went to the yard on the side of the house where
he encountered Webster. Webster had $2,296 in cash on his
person at the time, and the officers smelled a strong odor of
marijuana coming from the house and on Webster’s clothing.
Webster produced a driver’s license that indicated he resided
at 816 Almond Court. Two individuals exited the house and
began running from the residence. One fled back inside the
house and ultimately escaped through a second-floor window,
but the other, Frederick Jones, was apprehended. The officers
placed Jones and Webster in the caged back seat of a squad car
while they sought a search warrant for the residence. An
officer, Corporal Hammer, was in the patrol car with them for
approximately 2-1/2 hours before and during the search, and
at some point he employed the internal video camera in the car
to record all conversations in the vehicle. He was absent from
the car for approximately 8 minutes, and during that time
Webster engaged in conversation with Jones and placed
several phone calls which are audible in the recording. The
government subsequently moved to enter that 8-minute
excerpt into evidence, as well as a transcript of that recording
No. 13-1927 3
prepared by Corporal Hammer, Officer Kronewitter, and a
third officer. Defense counsel offered no objection, and the
district court allowed the evidence. Before playing the tape, the
court informed the jury that the recording was evidence but
the transcript was not evidence and that it merely reflected
what a few people believe is on the tape. The jury was further
instructed that in the case of a conflict, they should “go with
what you hear, rather than what you see.”
The search of the residence revealed a marijuana grow
operation, including 50 rooted plants, 38 cuttings, high-
pressure sodium grow lights on timers, chemicals, and a
computer that displayed the video from surveillance cameras.
In addition, the officers found marijuana in the pocket of a coat
in the first floor closet, and plastic baggies and electronic scales
in the kitchen. Of the three upstairs bedrooms, only one
contained a bed. In that bedroom, the officers found a bag
containing several smaller plastic bags of marijuana next to the
bed, loose marijuana and another container of marijuana near
the bed, and, in the pocket of a coat hanging in the closet, a
plastic bag containing several smaller bags filled with white
and brown powder substances. A loaded shotgun was found
in that bedroom and an unloaded shotgun was found in the
closet.
Webster challenges his convictions on the drug and
firearms charges on three grounds. He asserts that the district
court erred in allowing the admission into evidence of forensic
laboratory reports as well as a recording of the conversation
involving Webster in the squad car. In addition, he contends
that the evidence was insufficient to support the convictions.
We address these arguments in turn.
4 No. 13-1927
We begin with the challenge to the admission of the
forensic laboratory reports. The suspected drug evidence was
sent to the Indiana State Police laboratory and Kristen
Sturgeon, a forensic scientist, prepared two laboratory reports
identifying the drugs. Although Sturgeon was disclosed as a
potential government expert witness prior to trial, she was
never called to testify during the trial. Instead, the two lab
reports were admitted into evidence during the testimony of
Indiana State Police Trooper Brian Hoffman and South Bend
Police Sergeant Michael Steven Suth.
The first report was admitted into evidence during the
testimony of Trooper Hoffman. He related his observations of
the marijuana grow operation at the residence in detail and
testified that he transported the plants back to his office and
dried them prior to sending them to the laboratory. The
government then sought to admit Sturgeon’s report attesting
that the evidence contained 816 grams of marijuana. In
response to the request to admit the report into evidence,
Webster’s counsel stated “I think I agreed to this, didn’t I? No
objection.”
Later in the trial, Sergeant Suth testified as to the lab results
for the powdered substance found in the residence. Suth was
an evidence technician in the Metro Special Operations Section
of the South Bend Police Department, and at the residence he
was responsible for securing the evidence and subsequently
weighing, field testing, and processing it. He testified that the
evidence was then taken to the Indiana State Police Lab and
examined by Sturgeon, and he identified the lab report
containing the results of the testing. The government then
moved to have the report admitted into evidence, and defense
No. 13-1927 5
counsel stated “[n]o objection.” The court held that the exhibit
was admitted without objection. Suth proceeded to testify as to
the findings in Sturgeon’s lab report identifying the white and
brown powder substances as cocaine and cocaine base.
Webster now contends that the admission of Sturgeon’s
laboratory reports without her testimony or a stipulation as to
the admissibility violated the Sixth Amendment Confrontation
Clause of the Constitution. The government concedes that
Sturgeon’s lab reports were not properly admitted, but argues
that the error does not require reversal.
As the government acknowledges, we have repeatedly held
that “the government may not introduce forensic laboratory
reports or affidavits reporting the results of forensic tests and
use them as substantive evidence against a defendant unless
the analyst who prepared or certified the report is offered as a
live witness subject to cross-examination.” United States v.
Maxwell, 724 F.3d 724, 726 (7th Cir. 2013); Bullcoming v. New
Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011); United States v.
Moon, 512 F.3d 359, 360-62 (7th Cir. 2008). In failing to call
Sturgeon in the trial, the government ran afoul of that proscrip-
tion.
In general, when a defendant fails to object to the admission
of evidence at trial, we review only for plain error. In this case,
it appears that the decision not to object was intentional. When
the government first moved to admit the lab reports into
evidence, defense counsel stated that he thought he had agreed
to it and that he had no objection. He reiterated that he had no
objection when the government moved to admit the remaining
lab report. That affirmative decision to forego an objection
6 No. 13-1927
would normally be considered a waiver rather than a forfei-
ture. See United States v. Locke, 759 F.3d 760, 763 (7th Cir. 2014)
(“a defendant who affirmatively states ‘I do not object’ or ‘I
withdraw my objection’ has not forfeited the right, but rather
intentionally relinquished or waived the right and cannot ask
for review.”) “‘[W]aiver occurs when a defendant intentionally
relinquishes or abandons a known right, whereas forfeiture
occurs when a defendant simply fails to timely assert his
rights.’” United States v. Pappas, 409 F.3d 828, 829 (7th Cir.
2005), quoting United States v. Harris, 230 F.3d 1054, 1058 (7th
Cir. 2000). A forfeiture generally reflects an oversight, whereas
a waiver encompasses a deliberate decision not to present a
ground for relief. Id. In contrast to forfeited issues that we
review for plain error, we do not review issues that are waived
at all because a valid waiver leaves no error to correct on
appeal. Id. at 830.
Although the decision not to object appears to be an
intentional decision which would constitute a waiver, the
government did not argue that we should construe it as a
waiver. Instead, the government asserted that we should
review the admission of the evidence for plain error. In arguing
that we should review for plain error, the government has
waived the argument that the objection should be considered
to have been waived. United States v. Murphy, 406 F.3d 857, 860
(7th Cir. 2005)(government “waived waiver” by asserting that
we should apply the plain error standard of review). Accord-
ingly, we will review the challenge under the plain error
standard.
No. 13-1927 7
Under that standard, we will reverse only if there is error
that is plain, that affects the defendant’s substantial rights, and
that seriously affects the fairness, integrity or public reputation
of judicial proceedings, resulting in a miscarriage of justice.
United States v. Iacona, 728 F.3d 694, 699 (7th Cir. 2013). An
error affects substantial rights if it is prejudicial, “that is, when
it has affected the outcome of the district court proceedings.”
United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014).
The government contends, correctly, that the error here
could not have affected Webster’s substantial rights, because
Webster never contested that the substances were in fact drugs.
Webster conceded in opening statements, and referenced again
in closing arguments, that there were drugs found in the home.
Rather than wage a doomed battle as to the nature of the
substances in the home, defense counsel focused on the
argument that Webster was not connected to those drugs or
the residence and that other persons were responsible for the
drug operation.
The decision by defense counsel has a strategic benefit.
“Hearsay usually is weaker than live testimony, and defen-
dants may prefer the hearsay version rather than making an
objection that would compel the prosecution to produce a
stronger witness.” Moon, 512 F.3d at 361. Where the nature of
the substance cannot realistically be challenged, defense
counsel may well choose to focus the defense on the most
vulnerable areas of the government’s case. Given the extensive
grow operation found in the home, it certainly would have
been reasonable for defense counsel to conclude that it would
be futile to focus an attack on the nature of the substances
found there.
8 No. 13-1927
In Maxwell, 724 F.3d at 724-28, we addressed an analogous
situation. Maxwell was prosecuted for possession with intent
to distribute crack cocaine. Id. at 725. His strategy at trial was
to contest whether he had the intent to distribute, rather than
to challenge the nature of the substance involved. Id. at 727-28.
We held that as there was no question at trial as to the type of
drugs being distributed, the admission of the laboratory report
evidence could not constitute plain error. Id. at 728. The same
outcome is mandated here. There could be no harm to Webster
in this case, because the failure to present the testimony of the
analyst who prepared the report had no impact on his defense,
which did not challenge the existence of the drugs but con-
tested only his connection to them. Nothing in the report
addressed his connection to the drugs. Only the nature of the
substances was presented in the testimony regarding the lab
report, and that was not a contested issue at trial. Accordingly,
the error in the admission of the forensic report evidence does
not require reversal.
Webster next contends that the district court erred in
allowing the consideration of the taped and transcribed
conversation that occurred in the squad car. He asserts that the
recording of that conversation violated his Fourth Amendment
right to be free from unreasonable searches and seizures. He
notes that electronic surveillance can constitute a search within
the purview of the Fourth Amendment, and maintains that the
surveillance in this case constituted an unreasonable search.
In order to succeed on this claim, Webster has to establish
that he had a reasonable expectation of privacy in the conver-
sation that took place in the caged portion of the squad car. A
reasonable expectation of privacy exists when the defendant
No. 13-1927 9
manifested a subjective expectation of privacy and society
recognizes that expectation to be reasonable. United States v.
Walton, 763 F.3d 655, 658 (7th Cir. 2014). Therefore, it contains
both a subjective and objective component. We assume for
purposes of the analysis here that Webster in fact manifested
a subjective expectation of privacy, which was evidenced by
his silencing of the conversation when the officer was in the
patrol car, as would be expected from someone seeking to keep
a conversation private. Id. (the subjective prong looks to the
individual’s affirmative steps to conceal and keep private that
which was the subject of the search).
Instead, the insurmountable obstacle to his claim is in the
objective portion of the test—whether the expectation is one
that society accepts as reasonable. Although our circuit has not
yet addressed this question, six circuits have done so over the
last two decades and all have held that there is no objectively
reasonable expectation of privacy in a conversation that occurs
in a squad car. See United States v. Dunbar, 553 F.3d 48, 57 (1st
Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200-01 (10th
Cir. 2000); United States v. Clark, 22 F.3d 799, 801-02 (8th Cir.
1994); United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir.
1993); United States v. Fridie, 442 Fed. Appx. 839, 841 (4th Cir.
2011)(unpublished); United States v. Carter, 117 F.3d 1418 (5th
Cir. 1997)(unpublished). The reasoning of those courts are
instructive. The Tenth Circuit in Turner based its holding on
the distinct nature of a squad car, which is a place bristling
with electronics in which the practical realities of the situation
should be apparent to occupants. 209 F.3d at 1201. It noted that
in addition to the microphones to a dispatcher, it is increas-
ingly common for squad cars to possess video recording
10 No. 13-1927
devices (and in fact one such device was used to record the
conversation in this case,) and other electronic and recording
devices. Id. Moreover, as a number of circuits have recognized,
the squad car is in essence the mobile office of the patrol
officer, and the back seat is often used as a temporary jail for
housing and transporting arrestees and suspects. Clark, 22 F.3d
at 801-02; McKinnon, 985 F.2d at 527. Given the nature of the
vehicle and the visible presence of electronics capable of
transmitting any internal conversations, the expectation that a
conversation within the vehicle is private is not an expectation
that society would recognize to be reasonable. We agree with
those circuits, and hold that conversations in a squad car such
as the one in this case are not entitled to a reasonable expecta-
tion of privacy, and therefore the recording of the conversation
is not a violation of the Fourth Amendment.
We note that this holding reflects the layout and equipment
of the squad car, and express no opinion as to conversations
that occur in other vehicles. For instance, Webster relied
largely on a district court opinion in United States v. Williams,
15 F. Supp. 3d 821 (N.D. Ill. 2014), in which the court held that
there is a reasonable expectation of privacy in conversations
that take place in a squadrol or patrol wagon. That decision,
however, is inapposite. The Williams court emphasized in its
decision that the squadrol had three compartments including
two separate rear compartments for prisoners that were
physically separated from the front portion of the vehicle in
which the officers rode. Id. at 825. The prisoner compartment
was separated from the front part by a wall and windows with
thick plexiglass through which officers could see but not hear
the prisoners, and there were no electronics visible. Id. In
No. 13-1927 11
finding an objectively reasonable expectation of privacy, the
court distinguished the squadrol from the patrol car with its
electronics and visibility to the public. Id. at 828-30. Therefore,
that case is not helpful to Webster. Because there was no
expectation of privacy in the squad car, the recordings did not
violate Webster’s Fourth Amendment rights. Webster argues
in his reply brief that the transcript of the recording should
have been excluded because the government failed to provide
an adequate foundation for it, but that argument was not
raised in the opening brief and therefore is waived. See United
States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007).
The final challenge presented by Webster is one to the
sufficiency of the evidence. Webster asserts that the govern-
ment did not produce sufficient evidence to support the
possession charges because there was no evidence that he was
in actual physical possession of the drugs or guns, and the
government failed to demonstrate that he had exclusive control
of the premises sufficient to support a finding of constructive
possession. He also asserts that there was insufficient evidence
to connect the guns to the drugs, and therefore to support the
conviction for possession in furtherance of drug trafficking.
Ordinarily, we review a challenge to the sufficiency of the
evidence to determine only whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt, viewing the evidence in the light most
favorable to the government. United States v. Cejas, 761 F.3d
717, 726 (7th Cir. 2014). In this case, however, Webster failed to
file a motion for acquittal under Federal Rule of Criminal
Procedure 29 at the close of evidence or within seven days of
the verdict. Accordingly, we will review under the plain error
12 No. 13-1927
standard, and will reverse only if there is error that is plain,
affects the defendant’s substantial rights, and seriously affects
the fairness, integrity or public reputation of judicial proceed-
ings, effectuating a miscarriage of justice. Iacona, 728 F.3d at
699; United States v. Van Allen, 524 F.3d 814, 819 (7th Cir. 2008).
The government in this case relied on the theory of con-
structive possession in which an individual is deemed to
“possess” contraband items without a showing of immediate,
physical control of the objects. United States v. Schmitt, 770 F.3d
524, 534 (7th Cir. 2014). “Constructive possession may be
established by demonstrating that the defendant knowingly
had both the power and the intention to exercise dominion and
control over the object, either directly or through others.”
United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012). In
order to succeed under that theory, the government must
demonstrate a nexus between the defendant and the contra-
band so as to distinguish him from a mere bystander. Id. That
may be established by demonstrating that the defendant had
exclusive control over the property where the contraband was
discovered, which allows the jury to infer the knowledge and
intent to control objects within those premises. Id. In other
cases, it may be established by evidence supporting the
conclusion that the defendant had the ability to exercise
knowing dominion and control over the items in question.
United States v. Brown, 724 F.3d 801, 804 (7th Cir. 2013). Mere
proximity to the contraband is not enough. Id.; United States v.
Reed, 744 F.3d 519, 526 (7th Cir. 2014). “Proximity must be
coupled with other evidence, including connection with an
impermissible item, proof of motive, a gesture implying
control, evasive conduct, or a statement indicating involvement
No. 13-1927 13
in an enterprise in order to sustain a guilty verdict.” Reed, 744
F.3d at 526.
Webster’s argument as to the sufficiency of the evidence is
largely tied to his argument that the conversation in the squad
car was improperly admitted, and although his argument
would likely fail without that evidence, it assuredly fails in
light of our determination that the conversation was properly
presented to the jury. First, substantial evidence tied Webster
to the residence itself, including that he was the residence’s
mortgagee, his driver’s license listed that residence as his
address, and he had a land contract with John Rees, the
mortgagor, who testified that Webster was living at the
residence at the time of the search. In addition, the neighbor
testified that the only person he ever knew to live there was
Webster. The items in the home further tied Webster to the
residence. The majority of the mail in the residence was
addressed to Webster. Furthermore, in the bedroom that
contained the drugs and guns, there was mail addressed to
Webster but no mail in the name of anyone other than Webster,
and in Webster’s name the officers found a receipt dated
January 14, 2011, and a bank statement dated February 28,
2011. The lone coat in the closet was sized extra large, which
was consistent with Webster’s size and not the size of the
persons found in and near the residence at the time of the
search. In addition to that evidence tying Webster to the
residence and the bedroom, Webster’s statements in the patrol
car establish a connection to the drugs in the residence. As set
forth in the government brief without contradiction by
Webster, in the recording Webster stated that the police were
searching inside his house, that they were inside “trying to
14 No. 13-1927
search for shit,” that “[i]t was just about to be tooken out next
month when I moved—I got leases wrote up and everything,”
and that the police were “trying to kill my mother fucking
career.” In addition, he indicated that he had tried to conceal
his connection to the residence, stating that “I came out from
the back and said I was working on the van. No they ain’t seen
me coming from the house. Shit they just seen me on the porch,
shit just trying to knock on the door as far as I’m concerned.”
A jury could interpret those statements as an acknowledg-
ment that the residence was Webster’s, and that he was
operating a drug business from that residence that he was
attempting to conceal from the police. That connection to the
drug business provides a motive for the possession of the guns,
which along with the evidence that the bedroom was Webster’s
and the proximity of the gun to the drugs, is sufficient to
distinguish him from an innocent bystander and establish the
nexus required for constructive possession. See Schmitt,
770 F.3d at 534 (testimony that the defendant was a drug dealer
and that drugs were found in his home was relevant to provide
a motive for the presence of a firearm for establishing construc-
tive possession). Moreover, the proximity of the firearms to
drugs in the bedroom, particularly where as here the home
also contained an extensive grow operation including a video
surveillance system, provides an adequate basis for the jury to
conclude that the guns were possessed in furtherance of the
drug offense. There is no basis to conclude that there was a
miscarriage of justice under the plain error standard.
Accordingly, the decision of the district court is
AFFIRMED.