United States v. Arthur Simmons ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2400
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RTHUR J. S IMMONS, a/k/a
A RTHUR J. S IMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 06 CR 85—Philip P. Simon, Judge.
A RGUED JANUARY 13, 2009—D ECIDED S EPTEMBER 18, 2009
Before B AUER, P OSNER and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. A jury convicted defendant-
appellant Arthur J. Sims Πof distributing heroin, possessing
Œ
We are using the name under which the defendant was
indicted and tried. At sentencing, Sims indicated that his actual
name was Arthur J. Simmons, and that is the name under which
(continued...)
2 No. 08-2400
heroin with the intent to distribute, possessing a firearm
after previously having been convicted of a felony, and
possessing a firearm in furtherance of a drug trafficking
offense. The district court ordered him to serve a prison
term of 106 months. Sims appeals, and we affirm his
convictions and sentence.
I.
The Gary, Indiana residence of Arthur Sims had long
been known as a source of heroin. People flocked to the
house from far and wide to buy heroin, and although
local police had interdicted “quite a number of” those
individuals, R. 108 at 25, Sims himself was never caught
in the act of selling heroin. Detective Mike Smith would
later testify that members of the Gary police department
had tried for “quite a long time” without success to
gain access to Sims’s residence in order to make a con-
trolled purchase of heroin from him. R. 108 at 25. Their
Œ
(...continued)
judgment was entered and which is used by the Bureau of
Prisons. Nonetheless, in its appellate brief, the government
insists that Sims is the defendant’s true name. Sims’s own
attorney, on the final day of trial, asked the court to have the
name Simmons stricken from the jury instructions and the
verdict form, a request that the district court granted based on
the lack of evidence that the defendant had ever used that name.
R. 80 vol. 3 at 32. Without attempting to resolve the ongoing
dispute as to the defendant’s legal name, we shall simply refer
him by the name used for the bulk of the proceedings below.
No. 08-2400 3
luck finally changed in 2006, when they enlisted Theresa
Barnes, a confidential informant who had bought heroin
from Sims in the past, to make a series of four con-
trolled purchases from Sims.
These transactions took place on March 14, March 16,
March 21, and March 25, 2006. In each instance, a
detective drove Barnes to Sims’s neighborhood in Gary,
and after being dropped off several blocks away, Barnes
walked to Sims’s residence at 2472 Adams Street. Once
admitted to the residence, she made a purchase of
heroin from Sims with money (in the range of $20 to $40)
supplied to her by the police. Barnes’s garments were
searched by the police immediately before and after
each transaction in order to confirm that she was
carrying no contraband other than the heroin that she
had purchased from Sims. Barnes wore a concealed
“button-hole” camera which recorded her meetings
with Sims on both video and audio. These recordings
would later be played for the jury at Sims’s trial. The
recordings showed Sims preparing and packaging the
heroin in the living room of the house and captured the
conversation that occurred between Barnes and Sims.
Shortly after the last of the four purchases took place on
March 25, police officers executed a search warrant at
Sims’s residence. Inside the home, they discovered Sims,
three other men, and Dorothy Davis. Davis, it turned
out, had been selling heroin for Sims for at least two
years. (She was initially charged as Sims’s co-defendant
and would plead guilty to possessing heroin with the
intent to distribute.)
4 No. 08-2400
Evidence of Sims’s heroin trafficking was found in the
living room of the home. There were two couches in
that room along with a chair, a lamp, and a white plate
that Sims used to mix the heroin with a cutting agent; all
of this was visible on the videos that Barnes had
recorded in the course of her controlled buys from Sims.
On one of the two couches, where Sims had sat during
his transactions with Barnes, the police found plastic
baggies, aluminum foil, a bag containing heroin, and a
pile of cash totaling $569. Officers would later find some
of the marked bills given to Barnes earlier that day
amongst that cash. Beneath a cushion on the other couch,
the officers discovered a loaded Smith & Wesson 9-milli-
meter handgun and another $5,120 in cash. A matching
gun case and additional ammunition were found across
the room on a television stand. The gun had been pur-
chased by an individual who was incarcerated as of
the date of the search.
Although Sims was not the record owner of the house
at 2472 Adams Street (assessor’s office records in-
dicated that Sims’s sister held title to the house),
ample evidence tied him to that residence. Sims’s
driver’s license listed a different address as his residence,
but investigation revealed that Sims was not living at
the other address at the time of his arrest. Moreover, a
2004 service invoice and Money Gram receipt found
inside of the car Sims was using—which was parked
outside of the Adams residence on the day of his ar-
rest—listed 2472 Adams as Sims’s address. Finally, and
most obviously, the Adams residence was the locus of
his heroin sales and was where Barnes had conducted
each of the four controlled purchases from Sims.
No. 08-2400 5
In a superseding indictment, a grand jury charged
Sims with four counts of knowingly and intentionally
distributing heroin, in violation of 21 U.S.C. § 841(a)(1)
(based on the four controlled buys by Barnes);1 one
count of possessing heroin with the intent to distribute,
also in violation of section 841(a)(1) (based on the heroin
found in Sims’s possession on the day of his arrest); two
counts of possessing a weapon and ammunition after
a prior felony conviction, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2); and one count of possessing
a firearm in furtherance of a drug trafficking offense,
in violation of 18 U.S.C. § 924(c). Sims pleaded not guilty
to the charges and was tried before a jury. Barnes had
died in the interim between Sims’s arrest in March 2006
and his trial in August 2007 and thus was not a witness
against him. Over Sims’s objection, the recordings of
the four controlled purchases of heroin that Barnes had
made from Sims were admitted into evidence and
played for the jury.2 Detective Smith authenticated the
recordings and identified both Sims and Barnes. After
1
A fifth distribution count, based on a controlled purchase
made by Barnes after Sims was arrested and then released on
bond by a state court, was dismissed at the government’s
request.
2
Each recording commenced with Barnes walking from the
point where she had been dropped off by the police to the
house at 2472 Adams Street and ended with Barnes leaving
the residence on her way to rejoin the police. When those
portions of the tapes were played, the audio volume was
lowered so that the jury could not hear any statements that
Barnes may have made outside of Sims’s presence.
6 No. 08-2400
each tape was played, the district court instructed the
jury that they were to consider Barnes’s statements for no
purpose other than to place Sims’s own statements
into context. R. 80 vol. 1 at 202, 219; id. vol. 2 at 227-28.3 At
the conclusion of the three-day trial, the jury convicted
Sims on all of the charges.
In calculating Sims’s sentencing range, the district court
held Sims to account not only for the amounts of heroin
that he had sold to Barnes 4 plus those which were found
either in his possession or Davis’s at the time of his
arrest—a total of 5.79 grams—but for an additional 73.42-
gram amount corresponding to the cash found in the
living room of the Adams Street residence on the date
of his arrest. Sims did not object to converting the $569
found on top of the couch into a corresponding amount
of heroin (nor to some $360 found on Davis’s person)
and adding that to the drug quantity, but he did object
to the conversion of the $5,120 in cash found underneath
a couch cushion. His counsel argued that it was unrea-
3
No instruction was given immediately after the March 16
videotape was played; instead, after the March 21 videotape
was played a short while later, the court gave a cautionary
instruction referring to “both of those two videos that we
have just seen[.]” R. 80 vol. 1 at 219. No objection was made
to the giving of a single limiting instruction for both tapes, and
in view of the fact that the tapes were played within a few
moments of one another, any error in this respect was surely
harmless.
4
The amounts sold to Barnes included the fifth transaction
that Barnes conducted with Sims after he was arrested and
then released on bond. See n.1, supra.
No. 08-2400 7
sonable to assume that all of that money was the fruit of
Sims’s heroin sales. But after hearing additional testimony
from Detective Smith as to the extent of Sims’s drug
trafficking, the court found it reasonable to conclude
that all of the cash found in Sims’s possession in fact
derived from the sale of heroin. The court noted that Sims
had not held a (legitimate) job since 1973, had made
multiple controlled sales of heroin to the confidential
informant, had been identified as a supplier of heroin
by Davis and other individuals, and had a longstanding
reputation in Gary as a heroin dealer. R. 108 at 42-43.
The court ordered Sims to serve a prison term of
106 months, which was in the middle of the range called
for by the Sentencing Guidelines. In his sentencing memo-
randum, Sims’s counsel asked the court to impose a
sentence below that range, and at the sentencing
hearing counsel cited as grounds for a sentence below or
at the low end of the range Sims’s age (fifty-nine) and
his health, which counsel said was compromised by a
bleeding problem that Sims had only disclosed to him
on the day of sentencing. The court found that neither
ground warranted a below-Guidelines sentence, com-
menting that it had been “presented with nothing more
than . . . a rather elliptical proffer” in regard to Sims’s
health, and that in view of the “overwhelming evidence
of a drum beat of drug dealing” on Sims’s part, his age
was not a sufficient reason to reduce his sentence. R. 108
at 53.
8 No. 08-2400
II.
A. Denial of Request for New Appointed Counsel
Sims first challenges the denial of his request that the
court appoint him a different attorney, which he made at
the beginning of the trial. He contends that his request
was timely, and that in view of the disagreements and
lack of communication between himself and the attorney
that he wished to replace, the denial of his motion left
him unable to present a defense. We review the court’s
ruling for abuse of discretion. E.g., United States v. Harris,
394 F.3d 543, 551-52 (7th Cir. 2005).
We find no abuse of discretion in the denial of Sims’s
request. The district court addressed his motion in a
manner fully consistent with the three-part inquiry set
forth in cases such as United States v. Van Waeyenberghe,
481 F.3d 951, 959 (7th Cir.), cert. denied, 128 S. Ct. 277(2007). First, the court heard Sims out on the reasons
why he was asking for a new attorney. Second, the court
took into account the timeliness of his request. And
third, after hearing from both Sims and his counsel as
to their interactions in preparation for the trial, the
court considered whether a complete breakdown in
communication had occurred that would prevent Sims
from presenting an adequate defense. The court was
eminently reasonable in concluding that the motion was
untimely, given that it was not made until the morning
of trial and Sims had made no prior complaints about
No. 08-2400 9
his counsel’s performance.5 Although Sims complained
that his attorney had not spent adequate time with
him in preparing the defense case for trial, after hearing
the multiple meetings that counsel described, the court
reasonably concluded that the complaint lacked merit.
Further, in view of the fact that Sims and his counsel
had met on no less than three occasions in the week
before trial, the court reasonably determined that there
had not been a breakdown in communication between
the two that would stand in the way of Sims’s defense.
The court believed that Sims’s motion constituted
nothing more than a delay tactic, and the evidence sup-
ports that determination. Finally, Sims has made no
showing that he was prejudiced by the denial of his
motion, i.e., that he was denied the effective assistance
of trial counsel. See id.B. Admission of Video Recordings of Controlled Buys
Sims contends that the admission of the video
recordings of the four meetings in which Barnes made
5
Sims contends that he had aired his dissatisfaction with
counsel previously, when he was arraigned on the superseding
indictment. The transcript of that arraignment has not been
included in the record. In any case, the district court still
was within its rights to conclude that the request for a new
attorney was untimely, given that the arraignment on the
superseding indictment (which dropped Davis as a co-
defendant in the wake of her guilty plea) took place just ten
days prior to trial.
10 No. 08-2400
controlled purchases of heroin from him violated his
rights under the Sixth Amendment’s Confrontation
Clause. Sims concedes that his own statements on the
recordings were admissible. Fed. R. Evid. 801(d)(2)(A); e.g.,
United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006).
But he contends that Barnes’s statements were not.
Barnes, of course, had died before trial and could not be
cross-examined. Sims contests the district court’s deter-
mination that her statements were admissible to place
Sims’s remarks in context. See id. at 666 (“State-
ments providing context for other admissible statements
are not hearsay because they are not offered for their
truth.”); see also United States v. York, 572 F.3d 415, 427 (7th
Cir. 2009). He insists that “there was no context needed
for the non-testimonial statements and therefore any
statement of the declarant (the confidential informant,
Barnes) was testimonial and subject to the Confrontation
Clause.” Sims Brief at 10.
The videos were properly admitted. Barnes’ statements
on the videos were not offered for their truth and
were not testimonial as Sims contends. They were
properly admitted to place Sims’s statements in context,
see United States v. James, 487 F.3d 518, 524 (7th Cir. 2007)
(coll. cases), and we have no reason to question the
court’s judgment that it would be helpful for the jury
to have that context as opposed to hearing only one half
of conversations that were two-sided. The district court
prudently allowed the jury to hear only those statements
that Barnes made while in Sims’s presence. The jury
heard nothing that Sims might have said to herself or to
No. 08-2400 11
the police during her approach to or departure from
the residence on any of the four occasions. Moreover,
the court properly instructed the jury that Barnes’s state-
ments were not to be considered for their truth but
rather solely for the context they provided for Sims’s
statements. See United States v. McClain, 934 F.2d 822,
832 (7th Cir. 1991).
C. Sufficiency of Evidence that Sims Possessed Firearm
Found in Couch
Sims contends that the government did not prove
beyond a reasonable doubt that he possessed the gun
found under the seat cushion of a couch in the living
room of the residence where he conducted his business
with Barnes. Although none of the videos showed Sims
handling the gun, it was discovered in a location within
arm’s reach of where Sims was seen packaging heroin
on the videos. But in view of evidence that the house
at 2472 Adams Street was not in his name but the name
of his sister, and in view of the additional fact that
his driver’s license reflected a different address, Sims
contends that the evidence raised insurmountable doubt
about whether he possessed the weapon or the home’s
registered owner did. Of course, we are obliged to view
the evidence in a light most favorable to the govern-
ment, and we will reverse the conviction for insufficiency
of the evidence only if no reasonable factfinder could
find beyond a reasonable doubt that Sims possessed the
weapon. E.g., United States v. Blanchard, 542 F.3d 1133,
1154 (7th Cir. 2008).
12 No. 08-2400
The evidence was more than adequate to support the
jury’s finding that the weapon was within Sims’s
dominion and control. See id. Although Sims’s name
was not on the title to the residence and his driver’s
license bore a different address, those facts by no means
foreclosed the possibility that he possessed the weapon
found in that residence. All four videos showed him
packaging and distributing heroin in the living room
of 2472 Adams Street, sitting on a couch within arm’s
reach of where the gun was stuffed under the cushion of
an adjacent sofa. Moreover, a service invoice and a Money
Gram receipt found in his car showed his address as
2472 Adams. In view of that evidence, the jury could
reasonably conclude that Sims in fact lived at the Adams
address and could reasonably find beyond a reasonable
doubt that he possessed the gun found in the living room
sofa at that address. See United States v. Seymour, 519
F.3d 700, 715 (7th Cir.), cert. denied, 129 S. Ct. 527 (2008);
United States v. Castillo, 406 F.3d 806, 812-13 (7th Cir. 2005).
D. Sufficiency of Identification of Defendant on Videos
We may make short work of Sims’s contention that the
evidence is “ambiguous” as to whether he is the person
captured on video distributing heroin to Barnes. Sims
Brief 13. The jury was perfectly able to compare the
videos with Sims’s visage, and it obviously concluded
that he was the person seen in the videos. The district
judge himself had no doubt that it was Sims, remarking
at sentencing that Sims was “seen on the videotape dis-
No. 08-2400 13
tributing drugs in these controlled purchases to the
confidential informant.” R. 108 at 42. Sims had also been
photographed outside of the Adams Street residence
while it was being searched, and that photograph was
identified by Detective Smith and admitted into evi-
dence. Smith himself formally identified Sims as the
person he and his fellow officers had arrested at 2472
Adams on March 25, 2006, as did Detectives Jolly and
Martens, who had participated in the search of the resi-
dence.
E. Conversion of Cash Found in Sims’s Possession into
Heroin
Sims next contends that his Guidelines offense level
and sentencing range were the product of an inappropri-
ately high drug quantity. The district court, as we
noted earlier, held him responsible not only for the
amounts of heroin that he sold to Barnes in the four
controlled buys and that were found in his possession
(and that of Davis) at the time of his arrest, but an addi-
tional amount corresponding to the total of $6,139 in cash
found in his residence (less $20 in controlled buy money
that Barnes had given Sims for the fourth purchase of
heroin on the day of his arrest). Sims contends that it
was unreasonable for the court to assume that all of the
cash found in the house, and in particular the $5,120
found underneath the sofa cushion in the living room,
was the product of heroin sales. The district court’s
drug quantity determination is a finding of fact that we
review for clear error. E.g., United States v. Longstreet,
567 F.3d 911, 924 (7th Cir. 2009).
14 No. 08-2400
The court did not err, clearly or otherwise, in converting
all of the cash discovered in the living room into a corre-
sponding amount of heroin and adding that to the total
drug quantity for which Sims was accountable. When
there is a sufficient basis to believe that cash found in a
defendant’s possession was derived from drug sales, a
court properly includes the drug equivalent of that cash
in the drug-quantity calculation. United States v. Rivera,
6 F.3d 431, 446 (7th Cir. 1993). Sims himself concedes that
the cash found on top of the sofa was properly found to
be the fruit of heroin sales, and there was more than
sufficient evidence to support the same finding as to the
cash found underneath the sofa cushion. Both quantities
of cash were found in or on the living room couches
(along with a variety of drug-related paraphernalia)
where Sims prepared and packaged the heroin and con-
ducted his sales. Detective Smith’s testimony established
that Sims had a longstanding reputation as a heroin
trafficker, and Sims had apparently held no other job
since the 1970s. Dorothy Davis, according to Smith, had
been dealing heroin on Sims’s behalf for at least two
years. There was no hint that Sims’s sales were
situational or isolated. To the contrary, the evidence
reflected, in the district court’s words, a persistent “drum
beat of drug dealing” that had gone on for years if not
decades. R. 108 at 53. If anything, Sims is fortunate that
he was not held to account for a much greater quantity
of heroin.
No. 08-2400 15
F. Reasonableness of the sentence
Finally, Sims contends that his sentence is unreasonable.
The 106-month sentence that the district court imposed
was within the range advised by the Sentencing Guide-
lines. Nonetheless, Sims contends that the sentence is
excessive in view of his age and failing health.
Sims has not rebutted the presumption of reason-
ableness that we apply to his within-Guidelines sen-
tence. See Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,
2462-63 (2007); United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Given Sims’s lengthy history of heroin
trafficking, a substantial sentence was called for both
to account for the gravity of his crimes and to protect
the community. 18 U.S.C. § 3553(a)(2)(A) & (C). The fact
that Smith was middle-aged by the time he was
convicted and sentenced did not by itself support a
sentence below the Guidelines range. And whatever
Smith’s physical ailments may have been, because Sims
had not disclosed them to his counsel until the day of
sentencing, his counsel was unable to make a record of
such ailments sufficient to warrant more serious con-
sideration.6 The sentencing transcript makes plain that
the district court understood its discretion to impose a
sentence outside of the advisory Guidelines range,
attached no presumption of reasonableness to that range,
6
The presentence report otherwise disclosed that Sims
suffered from high blood pressure, for which he was not
taking medication, and had a heroin addiction, for which he
had never before sought treatment. PSR ¶¶ 65, 67.
16 No. 08-2400
and considered the sentencing factors set forth in
section 3553(a). The sentence it imposed was a rea-
sonable one.
III.
We find no error in Sims’s trial or sentencing that
warrants reversal. We therefore A FFIRM his convictions
and sentence. The motion that Sims’s appellate counsel
has filed pursuant to Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967), to withdraw from representing Sims
is D ENIED as moot.
9-18-09