In the
United States Court of Appeals
For the Seventh Circuit
No. 94-3665
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE E. LLOYD,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 CR 201--George M. Marovich, Judge.
ARGUED JUNE 7, 1995--DECIDED DECEMBER 5, 1995
Before BAUER, COFFEY and MANION, Circuit Judges.
COFFEY, Circuit Judge. A federal grand jury indicted
Willie E. Lloyd of being a felon in possession of a firearm,
a 9mm Ruger semi-automatic pistol, in violation of 18
U.S.C. sec. 922(g)(1). Lloyd filed a pre-trial motion to quash
the warrant authorizing the search of his person and apart-
ment; the motion was denied. Lloyd was convicted before
a jury and sentenced to a term of ninety-six months im-
prisonment, to be followed by a three year term of super-
vised release, and ordered to pay a special assessment
of $50. Lloyd appeals his conviction as well as the denial
of his motion to quash the warrant. We AFFIRM.
I. FACTUAL BACKGROUND
On March 6, 1994, Detective Anthony Wojcik of the Chi-
cago Police Department ("CPD") received information
from a confidential informant ("CI") that Willie E. Lloyd
was in possession of two handguns. Lloyd and the CI
were members of the Vice Lords, a Chicago street gang,
and Lloyd was the leader of the faction known as the Un-
known Vice Lords. The CI, who belonged to the Conser-
vative Vice Lords, informed Wojcik that late in the eve-
ning of March 5, he met Lloyd in an apartment on West
Jackson Street in Chicago, Illinois. He described the
building as a "brown brick, six-flat unit on the southeast
corner of Jackson and Keeler," and informed him that the
apartment was on the first floor, on the west side of the
building. The CI also told Wojcik that the door to the
apartment was bordered in white stone.
While the CI was in the flat with Lloyd, the defendant
displayed two black handguns to the CI: a 9mm Ruger
semi-automatic pistol which was loaded as well as a 9mm
Glock semi-automatic pistol, also loaded./1 When Lloyd ex-
hibited these firearms, he stated that he kept them in
the apartment for "security purposes." After showing the
CI his firearms, Lloyd placed them on a shelf in the closet
of the rear bedroom, located directly off the kitchen.
After learning this information, Detective Wojcik (ac-
companied by the CI) drove to the apartment and ob-
served the building at the southeast corner of Jackson and
Keeler which matched the description given by the inform-
ant. Wojcik also had the CI point to the windows of the
defendant's apartment. The CI thereafter identified Willie
Lloyd from an array of photographs. The detective ran
a records check on Lloyd and discovered that he had been
convicted of second degree murder and aggravated bur-
glary in Iowa in 1973, as well as having been twice con-
victed in Chicago of unlawful use of a weapon by a felon
(1989 and 1990).
Based upon this information, the officer prepared an affi-
davit in support of a search warrant and appeared with
the CI before a Cook County Circuit Judge who found
that there was probable cause to believe that Lloyd was
a felon in possession of a firearm and issued the warrant
for the search of Lloyd's person and the first floor west
apartment in the building. The warrant was executed by
ten officers of the CPD and Agent Marianos of the Fed-
eral Bureau of Alcohol, Tobacco, and Firearms at approxi-
mately 10:15 p.m., on the evening of March 6, 1994.
At trial, Lt. John Farrell testified that he led several
CPD officers and Agent Marianos to the building identi-
fied in the warrant, and observed an individual in the
front room of the west apartment on the first floor. That
person then disappeared from view and Farrell heard a
male voice from within the flat shouting "Five-O."/2 Farrell
stated that he and the officers proceeded to the door to
the first floor west apartment, and that when he arrived
at the door, he "pounded on the door and . . . yelled,
'Police officers. Open up. We have a search warrant.' "
When there was no response, Farrell ordered Sgt. Edward
Mingey to open the door with a sledge hammer.
Lt. Farrell and Sgt. Mingey testified that after the for-
cible entry into the apartment, they observed Lloyd stand-
ing in the rear of the flat, with a "dark colored" firearm
in his right hand. As Farrell hollered "He's got a gun,"
Lloyd ran into the bedroom off the kitchen, and closed
and dead-bolted the door. Lt. Farrell broke down the door
and upon entry witnessed Lloyd, standing near a window
on the west wall of the bedroom, throw a gun out through
a broken window with his right hand. He immediately
placed Lloyd under arrest.
While Farrell, Mingey, and a few other officers were
gaining access to the apartment, CPD officers Lawrence
Knysch and Victor Rodriguez stood on the west side of
the apartment building. At trial, Knysch and Rodriguez
asserted that the area around the apartment building was
well illuminated with street lights as well as from light
coming through a window in the west apartment on the
first floor. The officers also testified that they heard their
companion officers enter the apartment, followed by a lot
of noise and commotion. Knysch stated that while he was
on the outside detail some twenty five feet away from
the window, he witnessed the defendant Lloyd pull back
a shade, bang on the window above them with a gun in
his right hand, break the glass, and throw out the gun.
Rodriguez testified that he was approximately fifteen feet
from the window, and that he was positive that he saw
Lloyd throw the firearm from the window.
Knysch and Rodriguez retrieved the loaded 9mm Ruger
semi-automatic handgun, and Rodriguez immediately yelled
up to the officers inside the apartment that he and Knysch
had recovered the Ruger. Farrell stated that he then con-
ducted a pat-down search of Lloyd, as the defendant
stated: "You got me. You got me. My brothers should
have been out there."
While Lt. Farrell was arresting Lloyd, Sgt. Mingey
found Shean Fisher (also known as Shean Woods) and Che
Williams laying on the floor in the middle bedroom of the
apartment. When Officer Rodriguez searched the closet
of this bedroom, he discovered a third weapon, a loaded
.25 caliber Lorcin handgun under some clothes. At the
time of the search, the following individuals were also
present in the apartment: Renee Fitzgerald and Keith
Melton, Kim Taylor,/3 Ms. Taylor's six children, and
Mookie Lloyd, the defendant's three year old son.
The government called Fisher, who was seventeen years
of age at the time of his arrest, to testify at trial. He
stated that Lloyd was the chief of his street gang, the
Unknown Vice Lords, and that he and Williams, then six-
teen years old, were Lloyd's security guards on the night
of his arrest. According to Fisher, their duties included
watching the apartment "to make sure nothing or no one
don't come through there," protecting Lloyd from rival
gang members, and to warn him if the police were ap-
proaching. As security guards, Fisher and Williams were
positioned near the front door of the apartment, and
Fisher stated that they were usually armed. At the time
of Lloyd's arrest, Fisher was carrying the .25 caliber
Lorcin, but Williams, who according to Fisher ordinarily
carried the Ruger while on guard duty, was unarmed.
Fisher stated to the court that as he observed the police
approaching the apartment building, Williams began shout-
ing "Five-O!" The guards then ran to the back bedroom
to warn Lloyd that police officers were in the process of
surrounding and entering the building. Fisher stated that
he handed the Lorcin to Williams, who threw it onto the
floor in the closet in the middle bedroom. Fisher and
Williams then laid down and remained on the floor in the
room until they were discovered by Sgt. Mingey. Fisher
stated that Lloyd had shown him how to operate the
Ruger two days earlier.
The prosecution also called Officer Michael Cronin to
testify. Cronin had been employed by the CPD for 23 years,
and spent the last thirteen years of his tour of duty in
the Gang Investigations Section. He had been assigned
to the west side area in the city of Chicago for the last
ten years, and stated that he was familiar with both Lloyd
and the Vice Lords, including the defendant's faction, the
Unknown Vice Lords. During the time Cronin was investi-
gating the Vice Lords, he testified that he had occasion
to speak with Lloyd, who informed the officer that he was
the leader of the Unknown Vice Lords. Cronin further
stated that he had previously observed Lloyd accompanied
by fellow gang members acting as "security guards," and
that within the year before the defendant's arrest, there
were two separate attempts on Lloyd's life from members
of rival street gangs./4
Lloyd called Renee Fitzgerald, his girlfriend and the
mother of his son, to testify on his behalf. She asserted
that on the evening of March 6, she and Lloyd were in
the rear bedroom of the apartment, changing their son's
diaper, when she heard someone in the apartment shout-
ing "Five-O!" She further stated that at this time,
Williams knocked on the rear bedroom door, and that
when she opened it, Williams handed her the Ruger and
asked her to get rid of it. According to Fitzgerald, upon
receiving the gun, she closed and locked the door, broke
the rear bedroom window with her fist, and threw the
gun to the ground. When queried during cross-examination
if she injured her hand as she broke the window, she
stated no and that she had only sustained a scratch. She
contended that she had not seen Lloyd in possession of
a gun at any time during that day. On cross examina-
tion, she admitted that Fisher and Williams were security
guards for Lloyd, and that Williams carried the Ruger
as part of his guard duties. She also contradicted Fisher's
testimony by stating that Lloyd was no longer the leader
of the Unknown Vice Lords at the time of his arrest, al-
though he had once been the faction's chief.
During the course of the trial, Lloyd's attorney issued
a subpoena for Terry Wilson, a reporter for the Chicago
Tribune. Ms. Wilson previously had written an article
about the second assassination attempt on Lloyd, published
on October 20, 1993. In the article, Wilson referred to
an "investigator familiar with Lloyd" as stating "We've
got a lottery going on whether he makes Christmas or
not," meaning that given the assassination attempts on
the defendant's life, the police officers believed that a rival
gang member would strike again in the near future. The
officers who testified at trial were questioned about
whether they were aware of the alleged "lottery," and
all denied knowledge of it. Lloyd's counsel stated that he
desired to question Wilson concerning whom she inter-
viewed for the article, and if any of the officers who were
involved in the investigation of the instant case admitted
to her that they were familiar with this alleged "lottery."
Counsel for the Chicago Tribune filed a motion to quash
the subpoena, arguing that Lloyd failed to demonstrate
"that all other available sources of information have been
exhausted," 735 ILCS 5/8-907(2), or that Wilson's testi-
mony "goes to the heart of [and] is crucial to" Lloyd's case,
Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co.,
Inc., 455 F. Supp. 1197, 1202-03 (N.D.Ill. 1978), such that
it would overcome Wilson's First Amendment or Illinois
statutory reporter's privilege, 735 ILCS 5/8-901 (1995), to
keep her sources confidential. The district judge agreed,
finding that the information defense counsel sought could
not overcome the privilege in that it would be "collateral
impeachment at best," because it was not relevant to the
issue of whether or not Lloyd was in possession of the
Ruger on the night of his arrest.
The jury returned a verdict of guilty, and the trial judge
entered a judgment in accordance with the verdict, find-
ing that Lloyd was guilty of being a felon in possession
of a firearm, in violation of 18 U.S.C. sec. 922(g)(1). The
defendant was sentenced to serve a term of imprisonment
of ninety-six months, to be followed by three years super-
vised release, and ordered to pay a special assessment
of $50.
II. ISSUES
Lloyd raises four issues on appeal. He claims that the
district court (1) committed clear error when it denied his
motion to quash the search warrant; (2) abused its discre-
tion when it admitted Officer Cronin's testimony concern-
ing the assassination attempts on Lloyd's life, the de-
fendant's statement at the time of his arrest about his
"brothers," and that he employed security guards to es-
tablish his motive for possessing the handguns; (3) erred
when it instructed the jury that they could find him guilty
of being a felon in possession of a firearm if they deter-
mined that he had either actual or constructive posses-
sion of the weapon; and (4) abused its discretion when
it granted the Chicago Tribune's motion to quash the sub-
poena for the reporter Wilson's testimony, thereby pre-
cluding defense counsel from questioning her about the
"lottery" concerning Lloyd.
III. DISCUSSION
A. THE SEARCH WARRANT
Lloyd argues that the district court committed clear error
when it denied his motion to quash the search warrant.
He maintains that the affidavit Detective Wojcik used to
obtain the warrant failed to set forth facts sufficient to
establish the CI's reliability or veracity, and that the in-
formation contained therein was insufficient to corrobo-
rate, much less support a finding of probable cause to
believe that he was a felon in possession of a firearm.
When reviewing the affidavit attached to a search war-
rant and a judge's issuance of the warrant, "the task of
a reviewing court is not to conduct a de novo determina-
tion of probable cause, but only to determine whether
there is substantial evidence in the record supporting the
[judge's] decision to issue the warrant." Massachusetts v.
Upton, 466 U.S. 727, 728, 104 S. Ct. 2085, 80 L. Ed. 2d
721 (1984). "[C]ourts should not invalidate warrant[s] by
interpreting affidavit[s] in a hypertechnical, rather than
a common-sense, manner." Illinois v. Gates, 462 U.S. 213,
236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (quotation
omitted, alterations in original). "[S]o long as the [judge]
had a substantial basis for . . . conclud[ing] that a search
would uncover evidence of wrongdoing, the Fourth Amend-
ment requires no more." Id. (quotation omitted). "We
review the [judge's] findings for clear error." United
States v. Buckley, 4 F.3d 552, 555 (7th Cir. 1993), cert.
denied sub nom., Herman v. United States, __ U.S.
__, 114 S. Ct. 1084, 127 L. Ed. 2d 400 (1994).
"Rather than viewing bits and pieces of a probable
cause showing in isolation, the court must focus on all the
facts presented to the [judge]." United States v. Markling,
7 F.3d 1309, 1317 (7th Cir. 1993). In Gates, the Supreme
Court enunciated the totality-of-the-circumstances approach
to determining if probable cause exists which "permits
a balanced assessment of the relative weights of all the
various indicia of reliability (and unreliability) attending
an informant's tip." Id. at 234.
The task of the issuing [judge] is simply to make a
practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before
him, including the 'veracity' and 'basis of knowledge'
of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a
crime will be found in a particular place.
462 U.S. at 238.
"[F]irst-hand observations [by a CI] support a finding
of reliability." Buckley, 4 F.3d at 555-56; see also Gates,
462 U.S. at 234 ("even if we entertain some doubt as to
an informant's motives, his explicit and detailed descrip-
tion of alleged wrongdoing, along with a statement that
the event was observed first hand, entitles his tip to
greater weight than might otherwise be the case."). The
degree of detail that an informant provides, as well as
the corroboration by an officer's independent investiga-
tion of the informant's information, also serve to support
a finding of reliability. United States v. Pless, 982 F.2d
1118, 1125 (7th Cir. 1992).
We agree with the trial judge's denial of the defendant's
motion to quash, in light of the following facts which serve
to establish that Wojcik's affidavit, and the information
contained therein, were sufficiently detailed and reliable
to establish a finding of probable cause: (1) the CI was
a fellow gang member of the defendant and had first hand
knowledge of Lloyd's possession of the handguns within
the 24 hour time period prior to the issuance of the search
warrant; (2) he gave Detective Wojcik detailed descrip-
tions of the building, the location of the apartment and
the weapons within the building; (3) Wojcik independent-
ly verified that the CI's description of the building were
accurate.
Additionally, we recognize that when a CI accompanies
the officer and is available to give testimony before the
judge issuing the warrant, his presence adds to the reli-
ability of the information used to obtain the warrant, be-
cause it provides the judge with an opportunity to "assess
the informant's credibility and allay any concerns he might
have had about the veracity of the informant's state-
ments." United States v. Causey, 9 F.3d 1341, 1343 (7th
Cir. 1993), cert. denied, __ U.S.__, 114 S. Ct. 1412,
128 L. Ed. 2d 83 (1994). In the case at hand, as noted
by the trial judge in his minute order:
It is important to note that the CI appeared before
the issuing Judge . . . and was available to answer
under oath any questions put to him by the Judge
regarding the truth of the information contained in
the affidavit. [The judge] obviously found the CI to
be credible and the information to be reliable. Such
findings are entitled to deference on review.
In light of the totality of the circumstances enumerated,
Gates, 462 U.S. at 234, we hold that the affidavit and the
information contained therein, were sufficiently reliable
and detailed to support the issuance of the warrant for
the search. Thus, the district court did not commit error
in denying Lloyd's motion to quash the warrant for the
search of his person and apartment.
B. EVIDENCE OF PRIOR BAD ACTS
Lloyd maintains that the trial court abused its discre-
tion when it allowed Officer Cronin to testify that the
defendant was the leader of the Unknown Vice Lords,
employed security guards from the ranks of his gang, and
that he had been the target of two assassination attempts
within the previous year. He posits that the evidence
received was not sufficiently similar to the crime with
which he was charged (possession of a firearm by a felon),
and that because of the strong societal bias against mem-
bers of street gangs, the admission of that testimony was
unduly prejudicial. The trial judge admitted the evidence
for the limited purposes of establishing "one, the context
of the defendant's post-arrest statement, two the relationship
between the defendant and other persons in the apart-
ment at the time of the search, and three the defendant's
motive to possess a handgun," as well as why Lloyd felt
the necessity to employ armed security guards.
"Under Federal Rule of Evidence 404(b), evidence of
other misconduct is not admissible to show that the defen-
dant acted in conformity therewith, but may be admissi-
ble for other purposes, such as proof of motive, oppor-
tunity, intent, preparation, plan, knowledge, or identity."
United States v. Wilson, 31 F.3d 510, 514 (7th Cir. 1994)
(citations omitted, emphasis added). "We review the dis-
trict court's decision to admit the disputed evidence for
an abuse of discretion." Id. (citations omitted). "The deci-
sion to admit evidence will be reversed only when it is
clear that the questioned evidence had no bearing upon
any of the issues involved at trial." United States v. Torres,
977 F.2d 321, 327 (7th Cir. 1992) (quotation omitted). The
district judge's determination of the admissibility of evi-
dence "is treated with great deference because of the trial
judge's first-hand exposure to the witnesses and evidence
as a whole, and because of his familiarity with the case
and ability to gauge the likely impact of the evidence in
the context of the entire proceeding." Id. at 329 (citation
omitted).
In determining the admissibility of Rule 404(b) evi-
dence, the court must determine whether (1) the evi-
dence is directed toward establishing a matter in
issue other than the defendant's propensity to com-
mit the crime charged; (2) the evidence shows that
the other act is similar enough and close in time to
be relevant to the matter in issue; (3) the evidence
is sufficient to support a jury finding that the defen-
dant committed the similar act; and (4) the probative
value of the evidence is not substantially outweighed
by the danger of unfair prejudice.
Wilson, 31 F.3d at 514-15 (citations omitted, emphasis
added).
Under the requirements of Wilson, the trial judge deter-
mined that Officer Cronin's testimony was (1) directed
at establishing a matter other than Lloyd's propensity
to commit the crime charged, and was (2) "relevant to
the matter in issue," Lloyd's possession of the gun. Id.
at 514. Information concerning Lloyd's employment of se-
curity guards was admitted in evidence not to demon-
strate that he had a propensity to possess a gun, but
rather, to establish that considering the totality of the
circumstances surrounding Williams' and Fisher's relation-
ship to the defendant, vis-a-vis the weapons and their
employment status, Lloyd retained constructive posses-
sion of the guns they carried while on guard duty. See
Section III.C., infra.
Furthermore, Rule 404(b) specifically states that evi-
dence of prior acts is admissible to establish motive. The
assassination attempts on Lloyd provided a possible mo-
tive for his possession of the firearms and use of armed
guards--protecting his own life, as well as the lives of his
girlfriend and child, both of whom were present during
the last attempt on his life. Although the defendant argues
that motive was not one of the elements the government
was required to prove in order to gain a conviction,
motive to possess a firearm was "relevant to the matter
in issue," Wilson, 31 F.3d at 514, because it makes posses-
sion "more probable . . . than it would be without the
evidence." Fed. R. Evid. 403.
The second element of Wilson also requires that the acts
occur close enough in time to the crime charged to be
relevant to the matter in issue. 31 F.3d at 514. The sub-
stance of Officer Cronin's testimony concerned the year
prior to Lloyd's arrest for the instant offense and this
circuit has found that far greater time periods were close
enough in proximity to be relevant for purposes of Rule
404(b) analysis. See, e.g., United States v. Kreiser, 15 F.3d
635, 640-41 (7th Cir. 1994) (seven years before the cur-
rent charges for conspiring to possess with intent to dis-
tribute cocaine, the defendant was involved in a similar
cocaine transaction); and United States v. Goodapple, 958
F.2d 1402, 1407 (7th Cir. 1992) (a defendant charged with
possession with intent to distribute valium, obtained and
distributed drugs from a hospital in which he worked five
years earlier).
The third element of our analysis is also directed at
establishing the relevancy of the 404(b) evidence. See,
Huddleston v. United States, 485 U.S. 681, 689, 108 S.
Ct. 1496, 99 L. Ed. 2d 771 (1988). We have also made
it clear that this prong of our 404(b) analysis need not
be unduly rigid: we have stated that "when evidence is
offered to prove intent, the degree of similarity is rele-
vant only insofar as the acts are sufficiently alike to sup-
port an inference of criminal intent. . . . The prior acts
need not be duplicates of the one for which the defendant
is now being tried." United States v. York, 933 F.2d 1343,
1351 (7th Cir.), cert. denied, 502 U.S. 916, 112 S. Ct. 321,
116 L. Ed. 2d 262 (1991) (quotations and citations omitted);
see also United States v. Elizondo, 920 F.2d 1308, 1320
(7th Cir. 1990) ("[t]here is no requirement that acts used
to show the existence of a common scheme or plan be
identical, just that the charged and uncharged prior events
have sufficient points in common.").
Thus, while the assassination attempts and use of securi-
ty guards, as recounted by Officer Cronin, were not iden-
tical to the crime with which Lloyd was charged, they
were nonetheless relevant because they support an infer-
ence that Lloyd, aware that his life might be in danger,
possessed firearms and made use of armed security guards
to protect himself. Furthermore, Cronin's testimony "com-
plete[d] what would otherwise be a . . . conceptual void
in the story of the crime," United States v. Spaeni, 60
F.3d 313, 316 (7th Cir.), pet. for cert. filed, No. 95-6386
(Oct. 12, 1995), because Lloyd's statement that his "brothers
should have been out there," only becomes clear when
it is understood as a reference to his teenaged security
guards, Williams and Fisher.
Finally, we turn our attention to balancing the preju-
dicial and probative value of Officer Cronin's testimony.
This court has stated that "[b]ecause evidence of member-
ship in a street gang is likely to be damaging to [a defen-
dant] in the eyes of the jury, district courts must con-
sider carefully the admissibility of such evidence." United
States v. Rodriguez, 925 F.2d 1049, 1053 (7th Cir. 1991)
(quotation omitted). The requirement that the probative
value of 404(b) evidence must not be substantially out-
weighed by its prejudicial value "overlaps with Rule 403,
which states that 'evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of
unfair prejudice.' " Torres, 977 F.2d at 328 (quoting Fed.
R. Evid. 403). "Relevant evidence is inherently prejudi-
cial. . . . Rule 403 was never intended to exclude rele-
vant evidence simply because it is detrimental to one
party's case; rather, the relevant inquiry is whether any
unfair prejudice from the evidence substantially outweighs
its probative value." Cook v. Hoppin, 783 F.2d 684, 689
(7th Cir. 1986) (quotations and citations omitted).
"When balancing the prejudice and probative value, the
courts of the various circuits have found the scale tipped
in favor of admitting evidence of prior bad acts in cases
where the acts involved, or explained, the circumstances
of the crime charged, where the acts provided the back-
ground for, or development of, the crime charged, and
where the acts completed the story of the crime on trial."
United States v. Jordan, 722 F.2d 353, 356 (7th Cir. 1983).
"[T]his court has long recognized that gang membership
has probative value under appropriate circumstances,"
Rodriguez, 925 F.2d at 1053 (quotation omitted), and has
held that "evidence of gang members' lifestyle is admissi-
ble when it is intricately related to the facts of [a] case."
Id. at 1054 (quotation omitted).
Thus, even though the testimony of Officer Cronin aided
the prosecution in establishing Lloyd's guilt, our inquiry,
as mandated by Fed. R. Evid. 403, is whether the evi-
dence's probative value was outweighed by the risk of
unfair prejudice. The use of the guards was probative of
Lloyd's intent to illegally possess a firearm, as well as
assuring that he would have sufficient forewarning if
police were approaching. Thus, Officer Cronin's testimony
helped to establish Lloyd's actual and constructive posses-
sion of the loaded Ruger, see, section III. C., infra, and
the highly probative nature of his testimony outweighs
the risk of unfair prejudice to Lloyd. See Torres, 977 F.2d
at 328.
"Moreover, the district court provided jurors with limit-
ing instructions which restricted their consideration of the
evidence." United States v. Wright, 943 F.2d 748, 751 (7th
Cir. 1991) (citation omitted). Before Cronin testified, the
trial judge instructed the jury with words to the effect
that the evidence you are about to receive can be con-
sidered by you only for the limited purposes of under-
standing the context of Lloyd's statement "My brothers
should have been out there," the relationship of Lloyd
to the people in his apartment at the time of his arrest,
and his motive to possess a firearm. Furthermore, after
the close of evidence, before the jury began their delibera-
tions, the judge once again reiterated the limited purposes
of Officer Cronin's testimony, and instructed the jurors
that such evidence "cannot be considered by you to show
that the defendant had a propensity to commit the crime
charged in this case." The court did everything within
its power to ensure that the jury focused only on proper
uses of Officer Cronin's testimony, rather than using it
to establish Lloyd's propensity to possess a firearm. In
the context of the evidence presented at trial and the
court's limiting instructions, Officer Cronin's testimony
was properly admitted for it was probative and not un-
fairly prejudicial.
C. POSSESSION OF THE HANDGUN
In order to convict a defendant of violating 18 U.S.C.
sec. 922(g)(1), the government must demonstrate, beyond a
reasonable doubt, each of the following elements: "(1) that
the defendant had a previous felony conviction, (2) that
the defendant possessed a firearm, and (3) that the firearm
had travelled in or affected interstate commerce." United
States v. Moore, 936 F.2d 1508, 1525 (7th Cir.), cert.
denied, 502 U.S. 991, 112 S. Ct. 607, 116 L. Ed. 2d 630
(1991). Lloyd and the government have stipulated to the
elements of prior conviction and that the gun had travelled
in interstate commerce; thus, the only issue left for the
jury was whether the defendant possessed a firearm.
During the jury instruction conference, Lloyd's counsel
proposed an instruction limiting the jury charge to actual
possession of the firearm. The court declined the proposed
instruction, ruling, over defense counsel's objection,/5 that
it intended to give the prosecution's proposed possession
instruction which read:
Possession may be either actual or constructive.
Constructive possession is the ability to control the
gun.
Constructive possession exists when a person does
not have actual possession but instead knowingly has
the power and the intention at a given time to exer-
cise dominion and control over an object, either di-
rectly or through others.
On appeal, Lloyd argues that the government failed to
establish that he exercised dominion and control over
Melita Williams' apartment; thus, there was insufficient
evidence to support an inference that he maintained con-
structive possession of the handgun recovered by Officers
Knysch and Rodriguez. The defendant further contends
that if the jury's deliberations were limited to actual
possession, he would have been acquitted. Our review of
jury instructions is governed by the principles that in-
structions are to be viewed as a whole, and ones "which
are accurate statements of the law and which are sup-
ported by the record will not be disturbed on appeal."
Doe v. Johnson, 52 F.3d 1448, 1456 (7th Cir. 1995).
"Reversal is warranted only if the instruction misguides
the jury so much that the litigant is prejudiced." Maltby
v. Winston, 36 F.3d 548, 560 (7th Cir. 1994), cert. denied,
__ U.S. __, 115 S. Ct. 2576, 132 L. Ed. 2d 827 (1995)
(quotation omitted).
"Constructive possession exists when a person does not
have actual possession but instead knowingly has the power
and the intention at a given time to exercise dominion
and control over an object, either directly or through
others." Moore, 936 F.2d at 1526 (quoting United States
v. Garrett, 903 F.2d 1105, 1110 (7th Cir.), cert. denied, 498
U.S. 905, 111 S. Ct. 272, 112 L. Ed.2d 227 (1990)). We
rely on this doctrine in drug cases as well, in which we
have stated that in order to prove constructive posses-
sion, "the government must show that the defendant had
the ability to exercise control over the contraband, that
is, the power to possess the contraband." United States
v. Martinez, 937 F.2d 299, 305 (7th Cir. 1991) (quotation
omitted); see also United States v. Wight, 968 F.2d 1393,
1398 (1st Cir. 1992) (citing Garrett, 903 F.2d at 1110) ("as
long as a convicted felon knowingly has the power and
the intention at a given time of exercising dominion and
control over a firearm or over the area in which the
weapon is located, directly or through others, he is in
possession of the firearm"). "Both actual possession and
constructive possession may be proved by direct or cir-
cumstantial evidence. It is not necessary that such evi-
dence remove every reasonable hypothesis except that of
guilt." Garrett, 903 F.2d at 1110.
The evidence received at trial supported the giving of
the constructive possession instruction: (1) Lloyd was the
leader of the Unknown Vice Lords; (2) he hired two teen-
aged members of his gang to be his security guards, and
they were on duty the night of his arrest; (3) Fitzgerald
and Fisher each testified that Williams carried the Ruger
as part of his guard duties for Lloyd; (4) Lloyd had domi-
nion and control over the firearm when he taught Fisher
how to operate the Ruger just two days before his arrest;
(5) although Fisher testified that neither he nor Williams
knew where the gun was on the night of the search, Lloyd
was well aware of its location as he had placed the Ruger
on the shelf after displaying it to the CI; and (6) it is
quite obvious that the defendant Lloyd had the intention
to exercise control over the guards, as well as their ac-
tions, as was evidenced by his use of their services, his
instructing Fisher in the operation of the weapon as well
as his post-arrest statement that his "brothers should
have been out there." These facts serve to establish that
although the apartment in which he was arrested may
have been leased by Kim Taylor (a/k/a Melita Williams),
Lloyd, at the very least, had the power and intention to
exercise control over the Ruger therein, which was usually
possessed by Williams, one of his teenaged security
guards, while on guard duty.
We also reject Lloyd's claim that if the jury had not
been instructed on constructive possession, it would have
acquitted him of being a felon in possession of a firearm,
for in our opinion, the government produced more than
sufficient evidence to support a finding that Lloyd was
in actual and constructive possession of the Ruger: (1)
the defendant had the Ruger two days before his arrest
when he taught Fisher how to use the gun, as well as
on the night before the arrest when he displayed it to
the CI; (2) although Williams usually carried the Ruger
while on the premises on guard duty, on the night of the
arrest Fisher stated that neither he nor Williams knew
where it was, but contemporaneously, the firearm was ob-
served in Lloyd's possession in the hall of the apartment
and as he was throwing it out the window; (3) Officers
Knysch and Rodriguez stated that they witnessed Lloyd
throw the gun from the window of the apartment on the
night of the arrest; and (4) Lt. Farrell and Sgt. Mingey
observed Lloyd with a gun in his hand immediately upon
entering the apartment.
According to the transcript, Lloyd obviously had actual
possession and control of the Ruger numerous times: when
he displayed it to the CI and Fisher and when he placed
it back on the shelf in the middle bedroom after exhibiting
it; and when four CPD officers saw the Ruger in Lloyd's
hand on the night of his apprehension both immediately
prior to his arrest and at the time he threw it out the
window. Although Renee Fitzgerald attempted to assume
the responsibility for possession of the Ruger, testifying
that she was the one who threw it out the window, the
jury obviously found the law enforcement officers' testi-
mony more credible than Fitzgerald's who obviously was
trying to protect her boyfriend and the father of her child
from incarceration. We have stated on numerous occasions
that we defer to the credibility determinations of the jury
because it
has the best opportunity to observe the verbal and
nonverbal behavior of the witnesses focusing on the
subject's reactions and responses to the interroga-
tories, their facial expressions, attitudes, tone of
voice, eye contact, posture, and body movements, as
well as confused or nervous speech patterns in con-
trast with merely looking at the cold pages of an ap-
pellate record.
United States v. Eddy, 8 F.3d 577, 582-83 (7th Cir. 1993),
cert. denied __ U.S. __, 114 S. Ct. 1663, 128 L. Ed.
2d 379 (1994) (quotation omitted). We refuse to second-
guess their determination.
The jury instruction on actual and constructive posses-
sion was a proper statement of the law, as the transcript
provides evidence that Lloyd had dominion and control
over the weapon whether it was in his own hand or in
the hands of his security guards. Thus, we are of the opin-
ion that the trial judge did not commit error when he
instructed the jury that they could find the defendant
guilty of being a felon in possession of a firearm under
a theory of either actual or constructive possession of the
weapon.
D. QUASHED SUBPOENA FOR
THE NEWS REPORTER
The final issue concerns whether the district court com-
mitted error when it quashed the subpoena for Terry
Wilson, the Chicago Tribune reporter. We review the pro-
priety of quashing a subpoena under the abuse of discre-
tion standard. United States v. McCollom, 815 F.2d 1087,
1089 (7th Cir. 1987); see also United States v. Nixon, 418
U.S. 683, 702, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).
"An abuse of discretion occurs only when no reasonable
person could take the view of the trial court." United
States v. Mounts, 35 F.3d 1208, 1214 (7th Cir. 1994), cert.
denied, __ U.S. __, 115 S. Ct. 1366, 131 L. Ed. 2d
222 (1995). We afford the trial judge "great deference"
on appeal with respect to evidentiary rulings because of
his "first-hand exposure to the witnesses and evidence as
a whole, and because of his familiarity with the case and
ability to gauge the likely impact of the evidence in the
context of the entire proceeding." Torres, 977 F.2d at 329.
Lloyd's counsel speculated that Wilson's testimony was
crucial to the defense because it may have established that
the police officers who investigated his case were so biased
against the defendant that they participated in a "lottery,"
betting upon how much longer he would live. Lloyd's
counsel also speculates that because the officers when
queried at trial about the alleged lottery denied any
knowledge thereof, Wilson's testimony may have possibly
served as impeachment by prior inconsistent statement
had she interviewed these officers and they acknowledged
the existence of the lottery.
The issue of the lottery was brought out during the
cross-examination of Officers Cronin and Rodriguez, both
of whom denied knowledge of its existence. It is well-
settled in this Circuit that "a witness may not be im-
peached by contradiction as to collateral or irrelevant
matters elicited on cross-examination." United States v.
Ford, 21 F.3d 759, 764 (7th Cir. 1994) (quotation omitted).
Collateral matters are those that are "outside the contro-
versy, or are not directly connected with the principal
matter or issue in dispute." Black's Law Dictionary 262
(6th ed. 1990).
Defense counsel has offered nothing more than conjec-
ture and speculation, claiming that Wilson's testimony
could have possibly demonstrated that the police were
biased against his client, but the existence or non-exist-
ence of the alleged lottery had no relevance regarding the
only jury issue at trial: whether Lloyd possessed a fire-
arm. Thus, we agree with the district court's exercise of
discretion in ruling that the matter was collateral because
it was not directly connected with Lloyd's possession of
the Ruger. The defendant's attorney sought to have Wil-
son's testimony introduced in order to attempt to discredit
the testifying officers.
Although Lloyd posits that Wilson's testimony was rele-
vant to demonstrate the "overall bias" of the police
department against him, he cites neither evidence nor
caselaw in support of the admissibility of what he terms
"group bias" evidence concerning the alleged lottery, nor
does he relate the alleged bias to any infirmity in his ar-
rest or trial that would require us to reverse his convic-
tion. Furthermore, there is no indication or evidence in
the record nor in Lloyd's brief on appeal that he had any
specific reason to suspect, much less conclude, that any
one of the testifying officers was the alleged person
quoted in Wilson's article concerning the lottery, or that
any of the officers were providing false information dur-
ing cross-examination. Lloyd's counsel was engaging in
nothing more than an evidentiary fishing expedition be-
cause other than the fact that Wilson quoted an "investi-
gator familiar with Lloyd" in her article, no evidence links
the investigating officers to the alleged lottery. Lloyd was
the leader of a street gang on the west side of Chicago,
which had been under police investigation for at least ten
years according to Lt. Farrell. There are any number of
people in the CPD who are specifically assigned to con-
duct investigations, such as detectives, but we are well
aware of the fact that all law enforcement officers are
presumed to have conducted an investigation before mak-
ing an arrest, unless the crime is committed in their pres-
ence. As such, there are likely a number of "investiga-
tors" in the CPD who are likely to be "familiar with
Lloyd." In fact, Officers Rodriguez and Wiora, who did
not generally investigate the Vice Lords, both testified
that they knew of the defendant before his arrest in this
case from his pictures and by reputation.
Finally, "[t]his court will not reverse a conviction for
an evidentiary error if the error was harmless under the
standard of Fed. R. Crim. P. 52(a)." United States v.
Santos, 20 F.3d 280, 286 (7th Cir. 1994) (quotations and
citations omitted). "A harmful error results only if the
error has a substantial and injurious effect or influence
on the jury's verdict." United States v. Schoenborn, 4
F.3d 1424, 1429 (7th Cir. 1993) (quotation omitted).
Thus, even were we of the opinion that the trial court
abused its discretion in quashing the subpoena for Wilson,
the error would be harmless because we are convinced
that in view of the overwhelming evidence of Lloyd's guilt
of being a felon in possession of a firearm, in violation
of 18 U.S.C. sec. 922(g)(1), see, section III.C, supra, even
had Wilson testified that one of the officers who testified
at Lloyd's trial told her about the lottery, Lloyd would
have still been convicted.
We hold that the trial judge did not abuse his discre-
tion when he quashed the subpoena for the news reporter
Terry Wilson, because the substance of her proposed tes-
timony was of speculative value at best, and was only
being offered for the possible purpose of attempting to
impeach witnesses as to matters collateral to Lloyd's
possession of the firearm.
AFFIRMED.
FOOTNOTES
/1
The Ruger and the Glock weapons were loaded with
9mm cartridges.
/2
At Lloyd's detention hearing, Officer Cronin, a Chicago
Police Officer who worked with the Gang Investigations
Section, testified that "Five-O" is a warning sign that is
commonly used to indicate the approach of the police.
/3
Taylor, whose real name is Melita Williams, is the
lessee of the apartment.
/4
Prior to trial, the government filed a motion in limine,
seeking to admit Cronin's testimony in order to establish;
(1) the context of the defendant's statement "My brothers
should have been out there;" (2) the relationship between
Lloyd, Williams and Fisher; and (3) the defendant's motive
to possess the Ruger as protection in case there were any
more assassination attempts. Over Lloyd's objection, the
trial court admitted the evidence.
/5
The government asserts that Lloyd's constructive
possession argument has been mooted because his counsel
tendered an instruction including constructive possession
after his actual possession instruction was denied. We
disagree with the government's contention for the record
on appeal reflects that the instruction was given over
defense objection, and thus, the defendant neither
forfeited nor waived his right to appeal this issue. See,
United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994)
("forfeiture is the failure to make the timely assertion of
a right, waiver is the intentional relinquishment of a
known right").
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