United States v. Robert Amerson

185 F.3d 676, 1999 WL 424314
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 19, 1999
Docket97-4097
StatusPublished
Cited by81 cases

This text of 185 F.3d 676 (United States v. Robert Amerson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert Amerson, 185 F.3d 676, 1999 WL 424314 (7th Cir. 1999).

Opinions

COFFEY, Circuit Judge.

On July 15, 1997, the defendant-appellant Robert Amerson (“Amerson”) was convicted before a jury of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On appeal, Amerson argues that the trial court committed error: 1.) in refusing to allow the introduction of the affidavit of Timothy Heard; 2.) in refusing to find that the prosecutor improperly distorted the burden of proof during closing argument; 3.) in denying Amerson’s request for a Franks hearing; and 4.) in refusing to hold that the evidence was insufficient to support a conviction. We affirm.

I. BACKGROUND

At approximately 7:30 p.m. on February 11, 1997, officers of the City of Peoria, Illinois, Police Department executed a search warrant at an upstairs unit of a two-story, multi-unit apartment building located at 1418 N.E. Adams Street, Peoria, Illinois. Three police officers, Officers Mumaw, Mitchell, and Anderson, approached the second floor unit by ascending a flight of stairs leading to a landing area just outside the apartment’s kitchen door. The landing area outside the kitchen door was monitored with a “sensor light,” and as the officers ascended the stairs and approached the door, the light activated. Officer Mumaw knocked on the door and announced loudly “Police, search warrant!”, and at this time, the apartment’s lessee, Jesse Tolliver (“Tolliver”), appeared at a window next to the kitchen door and shouted “It’s the police!” and disappeared from view. At the same time, the officers heard the sound of people running inside the apartment, and they forced open the door and entered the apartment.

Following a plan established prior to the raid, Officer Mumaw ran into the kitchen, down a hallway, and into a bedroom located in the rear corner of the apartment. At trial, Mumaw testified that when he arrived in the bedroom, he observed a black male identified as Timothy Heard (“Heard”), along with two black females, Sharon Parker and Angela Hill. He saw Heard run to the bedroom window, which was covered with a large, heavy curtain. According to Mumaw, it appeared that Heard “tr[ied] to punch a small 35 millimeter canister1 out the window, but it didn’t make it because the curtain didn’t go out the window....” As Heard was punching [679]*679at the curtain and trying to dispose of the film canister, Officer Mumaw tackled him. A second officer, Mitchell, entered the room and assisted Mumaw in placing Heard in custody, and at this time, Mu-maw observed the canister lying on the floor inside the bedroom near the window adjacent to the curtain. Inventory and analysis of the contents of the film canister revealed seven individually wrapped, small rocks of cocaine weighing approximately 2.7 grams total.

At the time Heard struck and broke the glass in the window through the heavy curtain in the second-floor bedroom, three other officers were stationed outside and were standing directly below the window, Officers Moore, Kirwan, and Patterson. Officer Patterson “heard glass breaking from above [him]. At that time [he] looked up and saw pieces of glass falling down just in front of [him].” Officers Moore, Kirwan, and Patterson immediately searched the ground with their flashlights and found nothing but pieces of a broken window glass. The three officers then proceeded up the stairs in order to help the officers inside with the search of the apartment.

After arresting Heard and securing the other occupants of the apartment, Officer Mitchell, the lead officer, stationed himself at the front door and proceeded to assist the officers in the conducting of a “sting” operation upon those individuals who they anticipated might be appearing at the front door to sell or purchase drugs. Between 7:30 p.m. and 8:30 p.m. three people came to the door. The first group, two black females, arrived and asked for Tol-liver. Officer Mitchell refused to allow them entry, and they left. The other individual was a white female, who was arrested by Officer Mitchell after attempting to purchase a “look-alike”2 drug for $50.

At 8:50 p.m., approximately one hour and twenty minutes after the warrant entry into the apartment, another officer, Officer Couve, assigned to maintain surveillance and positioned across the street from the apartment, radioed the officers in the apartment that a black male was approaching the apartment on foot. The officers inside the apartment waited until they heard a knock, whereupon Officer Mitchell queried the person knocking, “Who is it?” The person (Amerson) outside the kitchen door responded “It’s me, Rob,” at which time Tolliver, under arrest and inside the apartment, shouted “Rob, it’s the police!”, alerting the officers to open the door. Officer Mitchell testified that when he opened the door he saw Amerson, illuminated by the sensor light, standing on the porch just three feet away, and holding a plastic bag in his hands that contained a white substance. According to Officer Mitchell, upon observing the officers, Amerson immediately “thr[ew] his hands in the air above his head, at which time this object [the plastic bag] came out of his hand and went over his head, off the landing and onto the ground behind him.” Officers Moore, Mumaw, and Mitchell “reach[ed] out and grab[bed] Mr. Amerson and ... pull[ed] him inside the apartment and after a struggle he [was] handcuffed” and arrested. Officer Moore then went “downstairs and ... look[ed] outside on the grass for what [he] believed at the time to be cocaine thrown from [Amer-son’s] hands and that’s what [he] found laying on the ground.” Officer Moore located the cocaine “fairly quickly” in a location he described as follows: “if you just walked out of the kitchen and onto the landing area and looked straight down over the railing, you could see the object in the grass directly in front of the porch.” Officer Moore, who was using his flashlight to search, discovered a plastic bag containing a white substance, which the police seized and was later analyzed and found to be 6.4 grams of crack cocaine.

The defendant Amerson was arrested and charged with possession of cocaine base with intent to distribute in violation of [680]*68021 U.S.C. § 841(a)(1). Before trial, the defendant filed a motion with the court and requested a Franks hearing, arguing that the investigating officer’s affidavit in support of a search warrant was based on the false statement of an informant who had claimed to have seen Amerson at the apartment on a prior occasion during a time frame Amerson denied being at the apartment. The court denied the motion, holding that Amerson failed to establish that the investigating officer’s affidavit was false and ordered the parties to proceed to trial. At trial, Amerson called Heard to the witness stand, and Heard invoked his Fifth Amendment privilege and refused to testify. In response, the defense counsel proffered Heard’s signed affidavit, which stated:

I Timothy Herd [sic] do solemly [sic] swear that the statement I’m about to sign is correct and is given at [sic] my own free will. On February 11th 1997 between 6:30-7:30 p.m. at 1418 N.E. Adams I heard police enter the apartment. Being in possession of two packages of cocaine. I ran to the back bedroom and attempted to dispose of them. One landed inside. Later one was found outside.

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Bluebook (online)
185 F.3d 676, 1999 WL 424314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-amerson-ca7-1999.