United States v. Johnny Lane ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1057
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHNNY W. L ANE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CR 40103—Michael M. Mihm, Judge.
A RGUED N OVEMBER 9, 2009—D ECIDED JANUARY 12, 2010
Before E VANS and SYKES, Circuit Judges, and
D ER-Y EGHIAYAN, District Judge. Œ
E VANS, Circuit Judge. Johnny Lane was indicted on
drug charges along with three codefendants, Shawn
Barnes, Kim Lane (Kim is Johnny’s half-brother), and
Raymond Harper. The codefendants pled guilty, but
Œ
The Honorable Samuel Der-Yeghiayan, United States District
Judge for the Northern District of Illinois, sitting by designation.
2 No. 09-1057
Lane put his fate in the hands of a jury. After a two-day
trial, he was convicted of conspiracy to distribute crack
cocaine and possession with intent to distribute crack
cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and
18 U.S.C. § 2. The jury also returned a special verdict on
drug weight, and the district court imposed a mandatory
life sentence based on Lane’s prior felony drug convic-
tions. Lane appeals both his convictions and the sen-
tence he received.
In early 2005, Lane moved from Chicago to Rock Island
(Illinois) to sell crack cocaine with his codefendants.1
Barnes and Kim drove to Chicago at least every other
weekend to buy drugs. Upon returning to Rock Island,
the cocaine was broken down, weighed, cooked into
crack, and then divvied up among the dealers. Lane
sold crack almost every weekday and shared customers
with Barnes and Harper. He pooled money with his
codefendants for the “re-up” in Chicago at least five
1
Rock Island is one of the Quad Cities, a region that straddles
the Mississippi River, including several cities in Iowa and
Illinois. Along with Davenport (Iowa) and Moline (Illinois),
Rock Island was one of the original “Tri-Cities,” as the area
was known before World War I. In the 1930s, East Moline
(Illinois) rose in population, which led to the name Quad
Cities. The growth of a fifth city, Bettendorf (Iowa), inspired a
brief campaign in the 1950s to rename it the Quint Cities.
But it was too late. The Quad Cities name had stuck.
http://en.wikipedia.org/wiki/Quad_Cities (last visited Novem-
ber 24, 2009).
No. 09-1057 3
times before his arrest in September 2007.2 Between a half
and a full kilogram of cocaine was obtained on each of
those five trips. 3 Lane also occasionally traveled to
Chicago with Barnes and Kim, though he did not partici-
pate in the drug buys. On one such trip, a kilogram of
cocaine was purchased.
In 2006, Lane started living with Mia Kelly, who sold
crack for Lane during his trips to Chicago. They moved to
a new place in June 2007, and Barnes lived there, too. Prior
to a police search of Kelly’s house, Barnes asked Lane
whether he needed any drugs from Chicago. Lane said
no as he still had a “half eighth” left, meaning one-half
of an eighth of a kilogram or 63 grams. Barnes bought
about 100 grams of crack for his own supply and stored
2
Admittedly, the Merriam-Webster Online Dictionary (2009)
defines re-up as “to sign on again” or “to enlist again.”
http://www.merriam -webster.com /dictionary/Re-up (last
visited December 2, 2009). But in drug slang “re-up” is used as
a verb, meaning to replenish a drug supply, or as a noun,
referring to the act of replenishing. See, e.g., The Wire. “Those of
you on the west side who need to re-up, holler at my man Monk.
He gonna handle supply over there. On the east side, Cheese.
One more thing, price of the brick goin’ up. 30 more.” Marlo
Stanfield, Season 5, Episode 56, “The Dickensian Aspect.” (HBO
original air date February 10, 2008).
3
Whether the defendants purchased between a half kilogram
and a kilogram on each of the five trips or in total is unclear
as the prosecutor asked “Do you recall what total amount of
drugs you purchased on those occasions?” Barnes replied,
“Anywhere from a half key to a key.”
4 No. 09-1057
it in the basement of Kelly’s house. When Rock Island
police executed a search warrant at Kelly’s house in mid-
September, they found three adults and three children
inside. They observed Barnes asleep in the living room
on an air mattress, Lane near the northeast bedroom,
and Kelly in the second bedroom, which appeared to be
the children’s. Officers found 3 grams of crack cocaine
underneath the air mattress as well as Barnes’s drugs in
the basement. In the northeast bedroom, they found
Lane’s identification in a wallet on the dresser, men’s
clothing fitting Lane’s build, and 53.6 grams of crack
cocaine hidden in a pair of socks in a clothes hamper in
the closet. The crack was in 22 individually wrapped
packages.
On the first day of trial, one of the police officers, Ed
Connelly, testified to what he found during the search and
about the interview he conducted with Lane following
Lane’s arrest. When asked about the nature of the inter-
view, Connelly said in part, “When I advised him that
we had found roughly 4 ounces of crack cocaine in the
house, he stated that he needed a lawyer.” Lane did not
object, but the district court immediately gave a
curative instruction that the jury should not hold Lane’s
statement about wanting a lawyer against him. Lane
then asked for a mistrial, but the judge denied the request.
Later that day, Barnes took the stand. He testified about
Lane’s drug dealing activities, but he also dropped two
stink bombs into the trial. When the government asked
Barnes whether Lane sold crack in Chicago before
moving to Rock Island, he commented that Lane had
No. 09-1057 5
been “in and out of jail.” Shortly thereafter, the prosecutor
asked Barnes if Lane was in Chicago prior to moving
to Rock Island. Barnes said Lane was in Chicago but
incarcerated on a parole violation. After this second
reference to his criminal history, Lane objected, but he
declined the judge’s offer to give the jury a cautionary
instruction.
The jury returned a guilty verdict on both counts as
well as a special verdict finding that Lane knew or could
have reasonably foreseen that the conspirators distributed
50 or more grams of crack cocaine in furtherance of
the conspiracy and that Lane possessed with intent to
distribute at least 50 grams of crack. Prior to trial, the
government had submitted an information pursuant to
21 U.S.C. § 851 to give Lane notice that if he were
found guilty he would face an enhanced sentence of life
imprisonment due to his prior felony drug convictions.
The information listed three convictions; the govern-
ment mislabeled the first offense a felony when it was
actually a misdemeanor and incorrectly identified Lane’s
two veritable felony offenses. However, Lane made no
objection to these errors. After Lane’s conviction, the
district court sentenced him to concurrent, mandatory
life sentences on both counts.
On appeal, Lane challenges his conviction on three
grounds, arguing that: the district court improperly
allowed Officer Connelly to testify that the northeast
bedroom in Kelly’s house belonged to Lane and Kelly; the
evidence on count two was insufficient to prove the crack
cocaine found in that bedroom was his; and testimony
6 No. 09-1057
about Lane’s postarrest request for an attorney and his
prior incarceration required a mistrial. Lane also
appeals his sentence on two grounds, claiming that: the
district court improperly imposed a sentence enhance-
ment based on the § 851 information that mislabeled
Lane’s prior felony drug convictions; and the district
court miscalculated the applicable drug weight and
consequent guidelines offense level based on incon-
sistent statements from Lane’s codefendants.
Yes, there were problems at trial and with the § 851
information. But having said that, we think none
warrant a do-over of the trial. We take up each of the
issues in turn.
Lane argues that it was error for the trial court to
admit Connelly’s testimony about who lived in the north-
east bedroom. Because Lane failed to object at trial, we
review the issue only for plain error. And that error
must be a clear one, affecting Lane’s substantial rights.
We only notice the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial pro-
ceedings.” United States v. Olano, 507 U.S. 725, 732, 113
S. Ct. 1770, 1776 (1993). That is one tough standard to
meet on appeal. In this case, our review is simple as
there was no error. It was appropriate to have Connelly
draw a lay conclusion about who lived in which bed-
room. 4 Lane argues that Connelly had “no first hand
4
Federal Rule of Evidence 701 states that “[i]f the witness is
not testifying as an expert, the witness’ testimony in the form
(continued...)
No. 09-1057 7
knowledge,” but that is simply not true. Connelly had
firsthand knowledge of what he observed at Kelly’s house
during the search. He saw Lane standing near the north-
east bedroom, where Connelly found a wallet with Lane’s
identification on the dresser and clothes that fit Lane’s
build. Connelly also observed bunk beds for the children
in the second bedroom and Barnes sleeping on the air
mattress in the living room. Thus, it was a reasonable
inference that Lane and Kelly occupied the northeast
bedroom. At oral argument, Lane insisted that the pros-
ecution should have introduced the physical items into
evidence: the wallet, ID, and clothes. But he is grasping
at straws. No rule requires the government—or the
defense—to present physical evidence anytime a lay
witness testifies about something he saw.
Next, Lane argues there was insufficient evidence to
find him guilty of count two, the possession charge. To
succeed on this claim, Lane must show there was no
evidence that could support the jury’s finding of guilt
beyond a reasonable doubt. United States v. Farris, 532
F.3d 615, 618 (7th Cir. 2008). To prove guilt under 21
U.S.C. § 841(a)(1), the government had to show
that Lane (1) knowingly or intentionally possessed
4
(...continued)
of opinions or inferences is limited to those opinions or infer-
ences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”
8 No. 09-1057
[crack] cocaine (2) with the intent to distribute it (3) while
knowing it was a controlled substance. United States v.
Starks, 309 F.3d 1017, 1022 (7th Cir. 2002). Lane argues
that the government failed to show any evidence that
he possessed the cocaine. But the police were not
required to catch Lane with his hand in the cookie jar.
See id. (“A defendant need not be caught red-handed
in order to satisfy the possession element”). The govern-
ment only needed to prove constructive possession, which
can be established through circumstantial evidence and
exists where the evidence demonstrates ownership,
dominion, authority, or control. United States v.
Richardson, 208 F.3d 626, 632 (7th Cir. 2000). Viewing the
evidence in the light most favorable to the verdict, there
were numerous pieces of evidence tying the crack in
the bedroom to Lane, including Connelly’s observations
which we just discussed. Furthermore, witnesses
testified that Lane possessed crack daily and that he
kept drugs at Kelly’s house. Just prior to the search, Lane
turned down an offer to buy more drugs as he still had
a “half eighth,” which is about the same amount of crack
that was found in the hamper. Plus, the other dealer in
the house, Barnes, kept his crack separately in the base-
ment. Thus, there was more than enough evidence for
the jury to find Lane guilty of possession with intent
to distribute.
Third, Lane asserts that references to his postarrest
request for an attorney and his prior incarceration
required a mistrial. We review a district court’s decision
on motions requesting a mistrial for an abuse of dis-
cretion. United States v. Taylor, 569 F.3d 742, 746 (7th Cir.
No. 09-1057 9
2009). The trial judge “is in the best position to deter-
mine the seriousness of the incident in question, par-
ticularly as it relates to what has transpired in the course
of the trial.” United States v. Clarke, 227 F.3d 874, 881 (7th
Cir. 2000) (citing United States v. Mealy, 851 F.2d 890, 902
(7th Cir. 1988)). Connelly had been on the Rock Island
police force for seven years when he testified that Lane
stated he wanted a lawyer—clearly, a veteran police
officer should have known that his answer to the pros-
ecutor’s question went too far. Introducing evidence of
a defendant’s request for an attorney undermines the
exercise of a constitutional right. However, an improper
answer does not necessarily violate due process. See
Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991). Here, the
prosecutor did not seek the testimony, nor use it
against Lane. Plus, a curative instruction was given, and
“[e]rrors that are the subject of corrective instructions
to the jury are presumed harmless.” United States v.
Wantuch, 525 F.3d 505, 516 (7th Cir. 2008). In the context
of the trial as a whole, it was well within the ex-
perienced district judge’s discretion to deny the motion
for a mistrial. With respect to Barnes’s testimony that
Lane was “in and out of jail” and “incarcerated on a
parole violation,” Lane objected but did not move to
strike the testimony or ask for a mistrial. When the
district court offered to give a curative instruction, Lane
declined. It was improper for Barnes to mention Lane’s
criminal history, but the district judge exercised proper
discretion in not sua sponte declaring a mistrial.
Turning to sentencing, Lane argues that the § 851 infor-
mation filed by the government was inadequate because
10 No. 09-1057
it mislabeled a misdemeanor as a felony and incorrectly
identified his felony convictions. Again, we review for
plain error because Lane did not object during the
district court proceedings. The two main purposes of the
§ 851 information are to give the defendant an oppor-
tunity to contest the accuracy of the prior convictions
and to inform his decision on whether to plead guilty or
proceed to trial. United States v. Williams, 584 F.3d 714, 715
(7th Cir. 2009). The government correctly identified
the dates, jurisdiction, and classification of two of them
as felonies, which put Lane on notice that he faced a
mandatory life sentence. He easily could have asked
for clarification on the labels upon receiving the infor-
mation. Instead, Lane waited until his appeal to
raise this objection, and in doing so, he fails to show any
prejudice. This was a case of careless mislabeling that
ultimately proved harmless.
Lastly, Lane argues that the district court miscal-
culated the applicable drug weight and subsequent
guidelines offense level based on unreliable statements
from Lane’s codefendants. However, the district court
stated at sentencing that it found the witnesses credible
and believed the government met its burden by a prepon-
derance of the evidence that Lane was accountable for
at least 4.5 kilograms. Moreover, Lane’s argument is
irrelevant as the district court did not use the guidelines
to arrive at the life sentence. Instead, 21 U.S.C. § 841(b)
required the district court to impose a term of life im-
prisonment given Lane’s two prior convictions for felony
drug offenses and the jury’s special verdict, which
held Lane responsible for at least 50 grams of crack cocaine.
No. 09-1057 11
For all these reasons, we A FFIRM the judgment of the
district court.
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