United States v. Michael Perryman

20 F.4th 1127

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 16, 2021
• Docket: 20-1453
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1453 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

MICHAEL PERRYMAN, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:18-cr-00317 — James P. Hanlon, Judge. ____________________

ARGUED NOVEMBER 1, 2021 — DECIDED DECEMBER 16, 2021 ____________________

Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Law enforcement agents searched Michael Perryman’s home and found drugs, baggies, a digital scale, and a loaded AR-15 rifle. Perryman was then charged with drug and firearm offenses. At trial, he sought to impeach an officer’s truthfulness by introducing a fifteen-year-old rep- rimand regarding an unrelated case, which the district court precluded him from doing. A jury convicted him on all counts. On appeal, Perryman maintains that the evidence was 2 No. 20-1453

insufficient to convict him on any count and that the district court’s exclusion of evidence reporting an incident unrelated to the case violated the Confrontation Clause. We reject both arguments and affirm the conviction. I. Background In Spring 2018, as part of a large antidrug operation, the Drug Enforcement Administration (“DEA”) obtained a search warrant for Perryman’s home in Indianapolis. A team of fed- eral and local law enforcement agents arrived at the property, just as Perryman was departing in his car. After stopping Per- ryman and reading him his Miranda rights, the agents searched the home, which had a master suite that consisted of a bedroom, bathroom, and a large closet accessible only through the bathroom. In the master bathroom, on a shelf on top of the vanity next to the closet door, they found fentanyl, baggies, and a digital scale. In the closet, there was a loaded AR-15 rifle, three to four steps away from the fentanyl, along with men’s shoes and clothes. Perryman, with the agents’ permission, called his then- girlfriend, Rasheema Moore, who arrived soon after. Alt- hough she lived elsewhere, she had signed the lease for the home. Moore said that the drugs, money, and gun were not hers. The agents read Perryman his Miranda rights for a second time after the search, and he agreed to talk. He admitted that the drugs were his, then provided the agents with the name of his drug supplier. He did not, however, claim ownership of the gun. The rifle “belonged to a girlfriend,” Maurita Thomas, who had originally bought the weapon with Perry- man at a gun show. The pair had lived together at different No. 20-1453 3

places over the years in homes leased under Thomas’s name. And they occasionally went shooting together. When Perry- man relocated to the home that agents would later search, the rifle went with him. The two, though, spoke regularly. During one post-arrest conversation, Perryman asked Thomas to lie about the gun. He wanted her to say that she took the weapon from one house to the other. She initially complied, telling an investigator and defense counsel that she moved the weapon. But once under oath, she admitted those statements were un- true; she lied “to protect Michael.” Perryman was indicted on charges of possessing fentanyl with intent to distribute, 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1), and possessing a firearm while a convicted felon, Id. § 922(g)(1). Prior to trial, the government moved in limine to exclude questioning concerning the disciplinary record of Indianapo- lis Metropolitan Police Department Sergeant Clifton Jones, who participated in the search of Perryman’s home. The dis- ciplinary offense stemmed from a complaint about Officer Jones’s involvement in an unrelated investigation.1 The Disci- plinary Board issued a “Written Reprimand” based on its re- view. Perryman wished to impeach Officer Jones’s credibility using this incident and focused his arguments on evidentiary points, adding in one sentence though that “[he] should be able to exercise his rights under the Confrontation Clause.” The district court, ruling only on the evidentiary question, granted the government’s motion in a sealed entry,

1 Like the district court below, we decline to elaborate upon the details

out of respect for Officer Jones’s privacy. 4 No. 20-1453

concluding that any potential probative value of the evidence was substantially outweighed by the danger of unfair preju- dice, misleading the jury, and confusing the issues. The trial lasted two days. Near the end of the trial, Perry- man again sought to impeach Officer Jones with the disputed evidence. The government objected, and the district court ex- cluded the evidence. After the close of the government’s case, Perryman moved for acquittal under Rule 29, which the dis- trict court denied. The jury convicted him on all counts. The district court sentenced Perryman to 228 months in prison, followed by five years of supervised release. II. Discussion Perryman argues that the evidence was insufficient to con- vict him on any count and that excluding Officer Jones’s dis- ciplinary action violated the Confrontation Clause.2 We ad- dress each argument in turn. A. Sufficiency of the Evidence We review the denial of a motion for acquittal under Rule 29 de novo. United States v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017). A jury verdict will only be overturned “if, after viewing the facts in the light most favorable to the government, there was insufficient evidence to convict.” United States v. Jett, 908 F.3d 252, 273 (7th Cir. 2018). The defendant bears the burden of demonstrating that no reasonable jury could find guilt be- yond a reasonable doubt. United States v. Tantchev, 916 F.3d

2 Perryman filed a pro se brief to raise additional concerns about his sentencing. We have discretion to reject a pro se brief without considering the issues argued when a defendant is represented by counsel, see United States v. Hunter, 932 F.3d 610, 620 (7th Cir. 2019), and choose to do so here. No. 20-1453 5

645, 650 (7th Cir. 2019); see also United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010) (“Such a challenge leads to a ‘“reversal only if the record is devoid of evidence from which a reason- able jury could find guilt beyond a reasonable doubt.”’” (quoting United States v. Moore, 572 F.3d 334, 337 (7th Cir. 2009))). We have described this challenge for the defendant as an “uphill battle,” United States v. Christian, 342 F.3d 744, 750 (7th Cir. 2003), a “momentous task,” United States v. Lawrence, 788 F.3d 234, 239 (7th Cir. 2015), a “‘heavy’ burden,” Jett, 908 F.3d at 273 (citation omitted), and a “nearly insurmountable” hurdle, id., one which Perryman cannot overcome for any count. 1. Possession of a Controlled Substance Section 841(a)(1) criminalizes the possession of a con- trolled substance, such as fentanyl, with the intent to distrib- ute. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(2). To convict, the gov- ernment must prove that the defendant knowingly possessed fentanyl with the intent to distribute and knew that fentanyl was a controlled substance. See, e.g., United States v. Brown, 973 F.3d 667, 697–98 (7th Cir. 2020) (marijuana); United States v. Campbell, 534 F.3d 599, 605 (7th Cir. 2008) (cocaine). Perryman only disputes whether he possessed the fentanyl. For § 841(a)(1), possession can be either actual or constructive. United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012). In this case, the government relies on constructive possession. “Constructive possession,” we have said, “is a legal fiction whereby a person is deemed to possess contraband even when he does not actually have immediate, physical control of the object.” Id. The defendant must have both the “power and intention to exercise dominion and control over the ob- ject, either directly or through others,” requiring some 6 No. 20-1453

connection between the defendant and the illegal drugs. Id. That connection can come “in one of two ways.” Id. The first way is where the defendant alone maintains “‘exclusive con- trol’ over the property where the contraband was discov- ered,” which allows the logical inference that the defendant possesses the drugs located there. Id. (quoting United States v. Castillo, 406 F.3d 806, 812 (7th Cir. 2005)). The second way of showing constructive possession, absent the defendant exer- cising exclusive control over the property, requires “‘a sub- stantial connection’ to the location where contraband was seized,” one “sufficient to establish the nexus between that person and [any contraband].” United States v. Morris, 576 F.3d 661, 667 (7th Cir. 2009). In either case, the government can show constructive possession through direct or circum- stantial evidence. Lawrence, 788 F.3d at 240. Here, a reasonable jury could easily conclude that Perry- man constructively possessed the fentanyl by his exclusive control over the drugs. Perryman confessed that the drugs were his, telling the agents immediately that the drugs be- longed to him and even providing them with the name of his drug supplier. Perryman claims that this confession was false. But the government offered uncontroverted testimony about its veracity from the task force officer who interviewed Perry- man after the search and heard his confession. The jury was entitled to credit that testimony in arriving at its verdict. Per- ryman even concedes, in his brief before this Court, that “[t]he jury could’ve relied on the testimony from [the testifying of- ficer] that Mr. Perryman stated that everything in the condo is his except the rifle.” Additional evidence further links Perryman with the drugs. The police found the fentanyl in the home where No. 20-1453 7

Perryman resided by himself, paid the bills, and was seen ex- iting when agents arrived. See Griffin, 684 F.3d at 695 (“Exclu- sive control over the premises allows the jury to infer the knowledge and intent to control objects within those premises … .”). The drugs were in the master suite, where Perryman slept, by a closet filled with men’s clothes. Perryman submits that because other people have stayed over, even leaving toothbrushes and feminine hygiene products behind, he could not have been the true possessor. But a person can still constructively possess drugs while living in a space visited by others. Whether a person maintains “exclusive control” over a residence generally turns on the number of live-in resi- dents—requiring only one—not the number of visitors, the number of signees on the lease, or even the number of people with keys to the home. Cf. Lawrence, 788 F.3d at 240 (“If a de- fendant lives alone in an apartment and a search reveals con- traband, proving constructive possession is relatively easy.” (emphasis added)). And both Moore and Thomas, the two most frequent visitors, denied owning the drugs. Cf. United States v. Rebolledo-Delgadillo, 820 F.3d 870, 876 (7th Cir. 2016) (“[W]e afford great deference to the jury’s factual findings and credibility determinations.”). Therefore, the evidence demon- strating Perryman’s possession of the drugs, combined with his confession, dooms this challenge. 2. In Furtherance of a Drug Trafficking Crime Under 18 U.S.C. § 924(c)(1)(A), a defendant cannot possess a weapon “in furtherance of” a “drug trafficking crime.” See also United States v. Johnson, 916 F.3d 579, 588–89 (7th Cir. 2019). Perryman argues that, assuming he committed a drug trafficking crime and possessed the firearm located in his 8 No. 20-1453

closet, the weapon was not used “in furtherance” of any drug crime. The “‘in furtherance of” element is fact intensive. United States v. Castillo, 406 F.3d 806, 815 (7th Cir. 2005). Courts fre- quently “list factors that seem relevant and leave it to the trier of fact to apply them to the facts of the case at hand.” United States v. Brown, 724 F.3d 801, 803 (7th Cir. 2013). These factors include “the type of drug activity that is being conducted, ac- cessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.” Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir. 2000)). No single factor determines the outcome; this inquiry is holistic. See id. (“It can be easier to determine ‘furtherance’ by a holistic analysis than by dissect- ing the issue into parts … .”). Here, sufficient evidence establishes that Perryman pos- sessed the gun “in furtherance” of his drug crime. The gun was located three to four steps away from large quantities of fentanyl, in the master closet, accessible only by going through the drug-filled master bathroom, and propped up against the wall, not locked away or hidden. Expert testimony at trial explained that such close proximity suggests that the gun was used to protect the drugs. Moreover, the gun was no ordinary weapon; it was a loaded AR-15 rifle, a weapon out- lawed in several states, which Perryman could not own under federal law. Together, this evidence more than supports the jury’s verdict. No. 20-1453 9

3. Felon in Possession of a Firearm Federal law prohibits certain felons from possessing a fire- arm. 18 U.S.C. § 922(g)(1). The government must establish four elements to prove a defendant guilty of this charge: (1) the defendant was convicted of a crime punishable by more than one year; (2) the defendant knowingly possessed a fire- arm; (3) the defendant knew of his felon status; and (4) the gun possessed by the felon had been in or affected interstate commerce. Id.; Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019); see also United States v. Parsons, 946 F.3d 1011, 1014 (8th Cir. 2020). Perryman does not contest the first, third, and fourth elements. He contends only that the government failed to meet its burden for the second element, possession of a fire- arm. Section 922(g) “covers possession in every form,” whether actual or constructive.3 Henderson v. United States, 575 U.S. 622, 626 (2015). As explained above, constructive possession “is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Id. A jury can infer constructive possession when the defendant exercises exclusive control over the premises. Griffin, 684 F.3d at 695 (describing the two forms of construc- tive possession, “exclusive control” being the first and more straightforward); see also United States v. Davis, 896 F.3d 784, 791 (7th Cir. 2018). A person who owns a home controls the objects within, whether drugs or illegal firearms. United States v. Caldwell, 423 F.3d 754, 758 (7th Cir. 2005). Third-party access to a home “does not negate the inference that [the defendant]

3 We need not consider the government’s argument that Perryman ac-

tually possessed the rifle. 10 No. 20-1453

had access to the firearm as well.” United States v. Villasenor, 664 F.3d 673, 681 (7th Cir. 2011). Here, the evidence permitted a rational jury to find that Perryman constructively possessed the weapon discovered in his closet.4 Perryman lived alone in the home where the police found the weapon and, thus, controlled the premises. While others may have had access, no one else resided there, so there was never joint ownership. And, as previously noted, when a defendant alone controls a property, a jury can reasonably as- sume that he controls the weapons present there. Caldwell, 423 F.3d at 758 (holding that where the defendant resides in the home, there “is sufficient [evidence] to establish that he had constructive possession of the firearms seized there”); United States v. Kitchen, 57 F.3d 516, 521 (7th Cir. 1995) (“‘Construc- tive possession can be established by a showing that the fire- arm was seized at the defendant’s residence.’” (quoting United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993))). Moreover, the weapon was in Perryman’s closet, by his clothes, feet away from the drugs that he confessed to own, and in the same mas- ter suite where he slept every night. Testimony at trial re- vealed that Perryman brought the rifle to the house and would later ask Thomas, a previous girlfriend, to lie about that fact. Nor does ultimate ownership of the gun matter, as Perry- man contends. Owning an item is different than possessing it. See Henderson, 575 U.S. at 626 (“By its terms, § 922(g) does not

4 Perryman concedes as much, “The facts may have led the jury to convict based on constructive possession and that Mr. Perryman has a substantial connection to the home.” The concession aside, the record also supports the government’s case. No. 20-1453 11

prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person’s) guns.”). Courts do not look to a weapon’s paperwork. A de- fendant need only possess a gun to be found guilty under § 922(g)(1). See United States v. Katz, 582 F.3d 749, 752 (7th Cir. 2009). Therefore, viewed in the light most favorable to the government, the evidence was more than sufficient to enable a rational jury to find that Perryman constructively possessed the AR-15, so his sufficiency claim fails. B. The Confrontation Clause We review a direct implication of the constitutional right to confrontation de novo.5 United States v. Rivas, 831 F.3d 931, 934 (7th Cir. 2016). Absent any direct implication though, we review a limitation on cross-examination for abuse of discre- tion. United States v. Carson, 870 F.3d 584, 597 (7th Cir. 2017). The Confrontation Clause protects the right of a criminal defendant “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The right to confront a witness also includes the right to cross-examine that person for any bias or motivation to lie. United States v. Vasquez, 635 F.3d 889, 894 (7th Cir. 2011); see also Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). If the defendant’s cross-examination, however, does

5 The government asserts that Perryman did not preserve this consti- tutional claim below, because he focused his challenge on evidentiary grounds. Perryman notes, however, that his memorandum in support of his motion to the district court stated that he “should be able to exercise his rights under the Confrontation Clause.” We assume, without deciding, that his one-sentence reference preserved the issue under Federal Rule of Criminal Procedure 51(b). 12 No. 20-1453

not implicate a core confrontational value—exposing motiva- tion, bias, or incentive to lie—then the constitutional concerns are diminished. United States v. Hart, 995 F.3d 584, 589 (7th Cir. 2021); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause guarantees an opportunity for ef- fective cross-examination, not cross-examination that is effec- tive in whatever way, and to whatever extent, the defense might wish.”). District court judges otherwise “retain ‘wide latitude’ to impose reasonable limits on cross-examination based on concern about matters including harassment, preju- dice, confusion of the issues, or interrogation that is repetitive or only marginally relevant, all without running afoul of the Confrontation Clause.” Rivas, 831 F.3d at 934 (quoting Dela- ware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Here, the proposed line of questioning into Officer Jones’s unrelated disciplinary action did not implicate a core value of the Confrontation Clause. Contrary to Perryman’s many as- sertions, Officer Jones’s reprimand did not involve tampering with evidence. Rather, Officer Jones’s participation in a police investigation fifteen years ago was questioned, which the Dis- ciplinary Board decided warranted only a written warning. Perryman has not shown, nor could he, that this irrelevant and dated offense relates to his case. See United States v. Clark, 657 F.3d 578, 584 (7th Cir. 2011) (emphasizing that “the Con- frontation Clause does not give a defendant a boundless right to impugn the credibility of a witness”). Officer Jones was not motivated to lie or harbor any bias against someone uncon- nected to his disciplinary incident, and Perryman was other- wise able to extensively cross-examine Officer Jones about his role in the investigation. See, e.g., Hart, 995 F.3d at 589–90 (not- ing that the defendant had “ample opportunity to impeach or discredit” the witness); Carson, 870 F.3d at 597 (holding that No. 20-1453 13

there was no error where the defendant had ample oppor- tunity to expose motivations); Clark, 657 F.3d at 584 (rejecting “barely relevant” and “highly inflammatory” questioning). Given then that a core confrontational value was not im- plicated, the district court properly exercised its “wide lati- tude” under the Confrontation Clause to exclude the evi- dence. Van Arsdall, 475 U.S. at 679; see also Hart, 995 F.3d at 589 (stating that when the “defendant’s argument indirectly impli- cates a core value,” we ask only whether the district court abused its discretion under the Confrontation Clause in lim- iting a defendant’s cross-examination). Introducing the mi- nor, fifteen-year-old reprimand, at best, tangentially related to truthfulness and would likely have prejudiced or confused the jury. See United States v. Recendiz, 557 F.3d 511, 530–31 (7th Cir. 2009). And again, Perryman already had a reasonable op- portunity to cross-examine Officer Jones. Perryman’s consti- tutional rights, therefore, were not violated. III. Conclusion For these reasons, we affirm the conviction.