United States Court of Appeals For the First Circuit
No. 02-1338
UNITED STATES,
Appellee,
v.
IKE WEEMS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Chief U.S. District Judge]
Before
Torruella, Lynch, and Howard, Circuit Judges.
Robert B. Mann, with whom Mann & Mitchell was on the brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Dulce Donovan, Assistant United States Attorney, were on brief for appellee.
March 6, 2003 LYNCH, Circuit Judge. Ike "True" Weems was convicted of
being a felon in possession of a firearm, a revolver which fired
shotgun shells. See 18 U.S.C. § 922(g)(1) (2000). He was
sentenced to 282 months of imprisonment. On appeal, Weems argues
that the district court erred in denying his motion for judgment of
acquittal and his motion to suppress. He also appeals various
aspects of evidentiary rulings, the jury instructions, and the
sentencing. We affirm.
We reject the argument that Jones v. United States, 529
U.S. 848 (2000), overruled prior law and now requires that the
interstate commerce nexus of § 922(g) be met by proof that it was
the defendant who transported the weapon beyond state lines. We
also reject the argument that the phrase "not less than fifteen
years" for sentences under the Armed Career Criminal Act (ACCA),
see 18 U.S.C. § 924(e)(1), sets a maximum as well as a minimum
sentence.
I.
A brief summary of the facts sets the stage. On December
11, 2000, the date Weems was arrested, the police had information
that he was wanted on two state arrest warrants; that he had been
seen by an informant carrying the firearm at issue here earlier
that day; that he was suspected of armed robbery; and that he was
believed to be dealing drugs from a house at 11 Padelford Street in
Providence, Rhode Island, where he had been seen regularly. After
-2- receiving a report from a confidential informant that Weems was at
the address, the police went quickly to the house without obtaining
a separate search warrant. There, they saw Weems through a window
and entered the house. Weems hid in the attic but his feet went
through the attic floor to the bedroom below, and the police
assisted his delivery into the room by pulling on his legs while he
clung to the rafters. Weems fell on a bed and there was a tussle.
Within seconds the police spotted a gun on the bed where Weems had
fallen -- the same unusual gun, a "Thunder Five" revolver that
could fire shotgun shells, with which he had been seen earlier that
day. He was arrested.
II.
We start with the appeal from the denial of the motion to
suppress, because its outcome affects the appeal from the motion
for judgment of acquittal.
A. The Motion to Suppress
We describe the facts found by the district court judge,
which were established at a two-day evidentiary hearing.
Weems moved to suppress the evidence seized at 11
Padelford Street, including the gun. The basis for the motion was
that the initial entry into the residence, which was rented by
Katisha Smith, was not justified by the state arrest warrant for
Weems; that the police had used the arrest warrant as a pretext to
enter the house and did not have a search warrant as was needed;
-3- and that, in any event, the seized gun should be suppressed because
it was not in plain view and it was found pursuant to an
unauthorized search after a protective sweep had already taken
place.
The district court assumed that the entry into the house
was valid and held it was irrelevant whether the house was Weems's
dwelling or only Smith's dwelling. The court stated, "The only
issue here is whether the outstanding arrest warrant was used by
the agents as a pretext for conducting a warrantless search and
whether the items seized were the fruits of such a warrantless
search" as opposed to a protective sweep. The court found that the
gun was in plain view and was lawfully seized pursuant to a
protective sweep.1 See Maryland v. Buie, 494 U.S. 325, 334-36
(1990). Indeed, in discussing the seizure of the gun, the court
referred to concerns for the officer's safety "because Mr. Weems
had a lengthy criminal record for violent crimes, armed robbery."
The district court did suppress other evidence taken from the
house, which the court found was not seized pursuant either to
Weems's arrest or to a protective sweep.
When the officers arrived at the address, they knew that
Weems had a lengthy criminal record, that there were two state
1 "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990).
-4- arrest warrants for him, and that Weems had been seen carrying the
gun earlier that day. One warrant was on a suspended sentence
violation related to a prior sentence for felony assault with a
dangerous weapon. They also had information that "True" Weems and
"Understanding" Yates had conducted armed robberies in the
Providence area; the armed robbers were known as the "Five
Percenter Group." In late October, a reliable informant told Agent
Edward Troiano of the federal Bureau of Alcohol, Tobacco, and
Firearms that Weems had been staying off and on at 11 Padelford
Street for the past few weeks or months and was dealing drugs from
that address. In early November the police arrested Yates, but his
companions, including Weems, escaped.
On December 11, an informant told Troiano that Weems was
then inside the Padelford Street home and that he was armed with
his shotgun revolver. Troiano contacted Providence police, and
went with police officers to the address about half an hour later.
They did not try to obtain a search warrant for the residence.
Outside the building, Troiano encountered Smith, who
lived there, and told her they had an arrest warrant for Weems.
She said that no one lived with her, that no one was in the house,
and that she did not know Weems. A picture is worth a thousand
words: while he was talking to Smith out front, other officers saw
Weems stick his head and torso out of a rear window of the house.
-5- They called up to Weems but he disappeared inside. He was told to
come outside; he did not.
Troiano testified that, had the officers not seen Weems,
they would have left. Because they did see Weems, it became a
different matter. They told Smith they had seen Weems in the house
and asked for the key. She declined, but when told the alternative
was that the police would break down the door, she handed over the
key. The police opened the door to the house and yelled that they
were police and had a warrant for Weems's arrest. There was no
response.
The officers started a protective sweep of the house,
including the two bedrooms; this routinely involves looking to be
sure no one is hiding under beds or behind furniture. The officers
did not find Weems, but they noticed a small opening to the attic
in a closet and yelled for Weems to come down. They heard
footsteps above and sprayed pepper spray into the attic. Weems's
feet broke through the ceiling once and he pulled himself back up
into the attic; when it happened again the officers pulled him
through into the room below. Understandably, the officers paid
attention to his hands, which were still in the attic. No officer
saw Weems hold a gun or saw a gun on his way down. On the bed,
Weems landed face down and kept his hands underneath himself. He
was subdued by the police and made to stand up; as he was being
-6- arrested and moved from the room, an officer looked down at the bed
and saw the shotgun revolver on the box spring.
Weems argues that the entry into the house violated the
Fourth Amendment, as did the seizure of the gun. If Weems
effectively lived at 11 Padelford, the arrest warrant itself would
be enough to authorize entry into his residence to effectuate his
arrest. Payton v. New York, 445 U.S. 573, 603 (1980); see also
United States v. Gay, 240 F.3d 1222, 1226-27 (10th Cir. 2001)
(Payton allows entry because officers had reasonable belief that
subject of arrest warrant lived at the house they entered). There
is some evidence to support that view of the facts, but the
district court made no findings on this point, so we bypass it.2
As this court stated, sitting en banc in Joyce v. Town of
Tewksbury, 112 F.3d 19, 21-22 (1st Cir. 1997) (en banc) (per
curiam), "even when armed with an arrest warrant, police must
generally have a search warrant to enter lawfully a third person's
home." Accord Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st
Cir. 1999). In each of these cases, the resident of the house
pursued the Fourth Amendment claim. Our rule is based on Steagald
v. United States, 451 U.S. 204 (1981). Steagald considered
"whether, under the Fourth Amendment, a law enforcement officer may
2 In her testimony at the suppression hearing, Smith was explicit that Weems did not live there and had no authority to invite people in, although he had a key and paid her to rent a closet.
-7- legally search for the subject of an arrest warrant in the home of
a third party without first obtaining a search warrant." Id. at
205. The Court concluded that "a search warrant must be obtained
absent exigent circumstances or consent." Id. at 205-06.3 No one
seriously contends that Smith voluntarily consented, when presented
with the choice of giving over the keys or having her door broken
down. Assuming Weems may raise the Fourth Amendment claim, the
question is whether exigent circumstances were present. See Joyce,
112 F.3d at 22.
3 The government argues that the Steagald rule does not apply when it is the arrestee rather than the resident who raises the Fourth Amendment issue. There is authority from some circuits to support the government's view. See United States v. Gorman, 314 F.3d 1105, 1110-11 (9th Cir. 2002); United States v. Kaylor, 877 F.2d 658, 663 (8th Cir. 1989); United States v. Buckner, 717 F.2d 297, 299-300 (6th Cir. 1983). There are also, however, arguments against this narrow view of the claim's availability to the arrestee. Steagald itself says that "most modern commentators agree that a search warrant is necessary to fully protect the privacy interests of third parties when their home is searched for the subject of an arrest warrant." 421 U.S. at 208 n.3 (citing commentators). The leading treatise describes analyses that would not apply Steagald to the arrestee's claim as "bizarre reasoning [which] would render the Steagald rule a virtual nullity." 5 W.R. LaFave, Search and Seizure, § 11.3(b), at 143 (3d ed. 1996). "If individuals are precluded from objecting to warrantless entries and searches of homes by their lack of standing, little incentive remains for law enforcement officers to comply with the warrant rules announced in Payton and Steagald." J.D. Harbaugh & N.L. Faust, "Knock on Any Door" -- Home Arrests After Payton and Steagald, 86 Dick. L. Rev. 191 (1982). Here, since we assume that Smith and not Weems is the resident, the government's view might bar Weems from raising the claim. For purposes of this appeal, we will assume without deciding, in Weems's favor, that he may bring the claim.
-8- The government argued to the trial court that the initial
entry was justified by exigent circumstances and we agree. Weems
was known to be armed with a dangerous weapon and to have a history
of assault; he was seen at the premises and was evidently trying to
escape; he had the opportunity to destroy or hide drugs or the gun,
both illegal in his hands. There was a need to act quickly, and
Weems had been given ample opportunity to surrender. See generally
Fletcher, 196 F.3d at 49-51 (discussing exigent circumstances).
The initial entry did not violate the Fourth Amendment.
The focus of Weems's argument to the district court was
that the arrest warrant was a "pretext" used by the Providence
police to raid a house for which they had no search warrant. The
entire premise of the attack is misplaced. The question is not one
of pretext, and the subjective intent of the police plays no role
in the analysis of a motion to suppress under the Fourth Amendment.
See Whren v. United States, 517 U.S. 806, 813 (1996). Rather, the
question is whether the entry and later activities were objectively
reasonable under the Fourth Amendment.
The district court was also quite correct to conclude
that the gun was found in plain view in the course of the arrest,
so we need not reach the other grounds for affirmance offered by
the government.
-9- B. Arguments Based on the First Trial
The first trial on these charges ended in a mistrial, to
which Weems consented. See United States v. Weems, No. 01-2080
(1st Cir. August 23, 2001) (order).
Weems attempts to use the first trial in several ways.
He argues that the court erred in not granting a judgment of
acquittal at the end of the first trial. Our recent decision in
United States v. Julien, 318 F.3d 316, 320-22 (1st Cir. 2003),
forecloses this claim, as Weems's counsel correctly acknowledged at
oral argument.
Weems also argues that the prosecutor may not present a
theory at the second trial inconsistent with the theory argued at
the first trial. We do not see why not. Weems says his argument
follows from an emerging doctrine that a prosecutor may not argue
inconsistent theories to a jury. In support he cites K. Miller,
Feature, Combating the Prosecutor's Improper Utilization of
Inconsistent Theories, 26 Champion 16, 18 (June 2002). See also
Smith v. Groose, 205 F.3d 1045, 1051-52 (8th Cir. 2000). We see no
risk to defendants' rights when two different juries are involved.
In any event, we think the logic of Julien also forecloses this
attack.
Finally, Weems attempts to go back to the initial
declaration of mistrial in order to undo it and raise a double
jeopardy argument now. This is another attempt to argue that there
-10- is insufficient basis to show that Weems consented to the mistrial.
We have already disposed of this claim in our order of August 23,
2001, in response to his earlier appeal, which stated, "the record
in this case makes clear that defendant consented to the
declaration of a mistrial."
C. Sufficiency of the Evidence at the Second Trial
The facts which follow are described in the terms most
favorable to the verdict of guilt, as to the denial of the motion
for judgment on the pleadings. United States v. Morillo, 158 F.3d
18, 22 (1st Cir. 1998).
The crime of conviction requires that the government have
shown beyond a reasonable doubt that Weems was a "felon" and was
"in possession of a firearm." That Weems was a felon there is no
dispute. This aspect of his appeal questions whether he was "in
possession" of the firearm.
Weems argues that there was insufficient evidence of
either actual possession or constructive possession. The jury was
instructed on both theories. Weems correctly says that mere
proximity to a weapon is not sufficient to show actual or
constructive possession. See United States v. Smith, 292 F.3d 90,
99 (1st Cir. 2002). The defense theory was that Weems had only an
attenuated connection with 11 Padelford Street, that people went in
and out of the apartment (including some troubled youth who had met
-11- there that day in a program), and that the gun was left there by
someone else.
The evidence was adequate; much more than mere proximity
was shown here. The gun was found on the bed just after Weems fell
there and was made to stand up. One of the officers who had
conducted the security sweep testified that, in doing so, he had
lifted the mattress and box spring and slid them apart somewhat,
and had noticed no gun. Smith said she did not have any firearms
in the apartment.
The gun came from somewhere. Defense counsel did not
argue that the gun was planted by the police; in light of the
testimony by an informant that had seen Weems with this very gun
earlier, such a hypothesis for the sudden presence of the gun would
fail. The fact that the police did not see the gun in Weems's hand
and failed to see it fall with him onto the bed hardly helps him.
A gun tucked in Weems's waistband or inside his shirt would be
easily dislodged in the scuffle. The jury had sufficient evidence
to conclude that there was actual possession.
D. Evidentiary Rulings
A trial court's determination of the scope of cross-
examination is reviewed for abuse of discretion. See United States
v. Morla-Trinidad, 100 F.3d 1, 4 (1st Cir. 1996). The same
standard applies to challenges to evidentiary rulings made by the
-12- trial court, other than of legal interpretations of the rules. See
Smith, 292 F.3d at 98.
Weems first objects to the government's cross-examination
of his witness, Sandra Hurt, a neighbor and relation of Smith who
was in front of 11 Padelford during some of the police activity.
The government was permitted to ask about what Hurt had observed at
the house on previous occasions, but not about what she had been
told by others. She testified as to "activity" at 11 Padelford but
did not specify what it was. Weems objects on appeal that the
witness left the clear and prejudicial impression that this was a
drug house. At trial the objections were intermittent but, in
Weems's favor, we will take them as preserved. As in Smith, 292
F.3d at 97-98, the evidence of drug dealing at the house was
relevant. It certainly gave Weems a motive to have the gun on him.
See Fed. R. Evid. 404(b). Indeed, given the defense theory,
Smith's testimony could be viewed as helpful to Weems, which may
explain the intermittent nature of the objections. In any event,
the district court did not abuse its discretion in finding
prejudice outweighed by the probative value of this evidence.
Potentially more significant is the restriction of
Weems's cross-examination of a Providence detective concerning
certain details of the lenience granted to the informant on other
charges. That informant's crucial statements both tied the weapon
to Weems and supported the exigent circumstances entry. However,
-13- no proper foundation was laid for the particular questions at
issue. Moreover, the informant's credibility was roundly attacked
in other portions of cross-examination, which elicited both the
existence of a cooperation agreement and the informant's prior
criminal record. The additional examination that was denied could
have elicited no more than a feather's weight on top of what was
before the jury about his credibility. There was no error.
Finally, Weems appeals from restrictions on his cross-
examination of Troiano about the failure to get a search warrant
and about controlled weapons buys. Our disposition of the
suppression issue renders these lines of questioning immaterial.
E. Jury Instructions
The jury was instructed that the government had to show
that the gun had "previously traveled in interstate commerce or it
previously [had] been transported across State lines, even though
it wasn't in the Defendant's possession at the time." The court
also instructed that the government did not have to show that
defendant transported the gun across state lines. Weems belatedly
requested an instruction that the jury had to find that Weems
himself caused the gun to be transported across state lines.
Putting aside the issue of possible waiver, we reject the
argument. The proposed instruction was an incorrect statement of
the law. The instruction given followed Scarborough v. United
States, 431 U.S. 563, 575 (1977). We do not view the Supreme
-14- Court's decision in Jones, 529 U.S. at 848, as altering this
precedent to require that the felon be the one who transported the
firearm in interstate commerce. Nor do the other circuits which
have addressed the question. See United States v. Lemons, 302 F.3d
769, 771-73 (7th Cir.), cert. denied, 123 S. Ct. 642 (2002); United
States v. Singletary 268 F.3d 196, 199-205 (3d Cir. 2001), cert.
denied, 535 U.S. 976 (2002); United States v. Santiago, 238 F.3d
213, 215-17 (2d Cir.), cert. denied, 532 U.S. 1046 (2001); United
States v. Dorris, 236 F.3d 582, 584-86 (10th Cir. 2000), cert.
denied, 532 U.S. 986 (2001).
Weems raises other objections to the jury instructions on
appeal, but concedes that he failed to preserve them before the
district court. The standard of review is therefore plain error,
United States v. Crochiere, 129 F.3d 233, 237 (1st Cir. 1997), and
his arguments are without merit.
F. Sentence
Playing off Apprendi v. New Jersey, 530 U.S. 466 (2000),
Weems makes two arguments to challenge his sentence, one of which
we have already rejected and the other of which we reject now.
In United States v. Moore, 286 F.3d 47, 50-51 (1st Cir.),
cert. denied, 123 S. Ct 242 (2002), we rejected the argument that
the government must prove beyond a reasonable doubt at trial the
predicate convictions underlying an ACCA sentence.
-15- We now reject the argument that the phrase "not less than
fifteen years" in the ACCA is a statutory maximum as well as a
minimum. See 18 U.S.C. § 924(e)(1). As the district court
correctly stated, the "not less than" language does not establish
a statutory maximum. In fact, the maximum is life imprisonment and
Weems was sentenced below that, so no Apprendi problem is raised.
See United States v. Mack, 229 F.3d 226, 229 n.4 (3d Cir. 2000),
cert. denied, 532 U.S. 1045 (2001).
G. Conclusion
The conviction and sentence are affirmed.
-16-