In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1929
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTIN CALDWELL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 899—Suzanne B. Conlon, Judge.
____________
ARGUED APRIL 15, 2005—DECIDED SEPTEMBER 12, 2005
____________
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit
Judges.
BAUER, Circuit Judge. A grand jury charged Martin
Caldwell in September 2003 with two counts of being a
felon in possession of firearms. Caldwell proceeded to trial
and was convicted on both counts. The district court
sentenced him to 57 months’ imprisonment. On appeal,
Caldwell challenges the sufficiency of the evidence, two
evidentiary rulings by the district court, and his sentence.
We affirm his conviction and order a limited remand with
respect to his sentence in accordance with the procedure
outlined in United States v. Paladino, 401 F.3d 471 (7th Cir.
2005).
2 No. 04-1929
I. Background
Caldwell’s most recent contact with the police stemmed
from the August 1998 kidnapping of his mother. Caldwell
called the police for assistance when the kidnappers
demanded a ransom of $250,000 in cash. Though Caldwell
told the kidnappers that he could not obtain that much
cash, he made several phone calls and raised approximately
$100,000 in less than an hour.1 The ransom was dropped off
at a prearranged location, Caldwell’s mother was released,
and the kidnapping went unsolved. During the incident,
Caldwell informed police that he lived at 4758 S. Lawler
Avenue in Chicago.
The circumstances of the kidnapping, including Caldwell’s
ability to raise a substantial amount of cash in a short
period of time despite apparently limited means, led the
police to investigate Caldwell. Police had been conducting
surveillance of Caldwell’s home when Mario Young, an
associate of Caldwell’s, was arrested on heroin charges on
September 17, 1998. When arrested, Young was driving a
Ford Crown Victoria with 76 grams of heroin in a hidden
compartment. Young informed the police that he got the
drugs and the car from Caldwell. He also told the police
that he had brought Caldwell $10,000 the prior day as
1
Caldwell argues at various points in his brief that the rec-
ord does not support a finding that Caldwell paid $100,000 in
ransom for his mother’s release. We disagree. The detective that
assisted Caldwell with the ransom drop testified that Caldwell
informed the kidnappers that he could not raise $250,000, but
that he could come up with $100,000. Tr. 54. Though the detective
did not count the money, he said that there were “bundles of
money” delivered to the kidnappers in a shoebox. Tr. 55. In any
event, the point is that Caldwell raised a very large sum of cash
in short order; it does not matter whether it was $100,000 or a
little less. Whatever the precise amount, it was enough to satisfy
kidnappers who had initially demanded $250,000.
No. 04-1929 3
partial payment for the heroin, and that Caldwell had been
supplying him with heroin for approximately six months.
Armed with the information provided by Young and a
number of other indications of involvement in the illegal
drug trade, such as the suspicious circumstances surround-
ing the kidnapping and the fact that Caldwell had ten
vehicles registered in his name despite reporting very
limited income on his tax returns, federal agents applied for
a search warrant of Caldwell’s home. A magistrate judge
granted the application, and the ensuing search of
Caldwell’s residence conducted on September 18, 1998,
turned up three guns, ammunition, approximately $57,000
in cash, and marijuana. Specifically, a loaded .45 handgun
with an obliterated serial number was found inside a
bedroom nightstand drawer, and a nine-millimeter handgun
and a two-shot derringer were found inside a secret com-
partment of a Monte Carlo parked in the garage.
On September 17, 2003, Caldwell was charged with two
counts of being a felon in possession of a firearm, in vio-
lation of 18 U.S.C. § 922. Caldwell filed two pre-trial
motions that are relevant to this appeal. First, on Fourth
Amendment grounds, he moved to suppress the evidence
found during the search of his home. The district court
denied the motion. Second, Caldwell filed a motion in limine
to exclude any evidence of prior drug dealing and any
evidence about the kidnapping of his mother. In response,
the government agreed not to offer evidence about drug
dealing, but argued that evidence regarding the kidnapping
was relevant because it gave him a motive to possess
firearms. The district court agreed and allowed the govern-
ment to present evidence about the kidnapping.
Caldwell decided to test the government’s evidence at
trial. The parties stipulated to the fact that Caldwell had a
prior felony conviction. In addition, it was largely undis-
puted that the firearms found at the Lawler residence had
traveled in interstate commerce. As a result, the primary
4 No. 04-1929
issue for trial was whether Caldwell possessed the firearms
in question. The jury sided with the government on the
issue, convicting Caldwell on both counts. The district judge
sentenced him to 57 months’ imprisonment, which repre-
sented the top of the applicable guidelines range. This
appeal followed.
II. Discussion
A. Sufficiency of the Evidence
Caldwell first challenges the sufficiency of the govern-
ment’s evidence against him. When adjudicating a suffi-
ciency of the evidence challenge, we will overturn a convic-
tion “only if the record is devoid of evidence from which a
reasonable jury could find guilt beyond a reasonable doubt.”
United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003).
This burden is “nearly insurmountable.” United States v.
Johnson, 127 F.3d 625, 628 (7th Cir. 1997).
To obtain a conviction under 18 U.S.C. § 922(g)(1), the
government bore the burden of establishing beyond a
reasonable doubt that: (1) Caldwell had a previous felony
conviction; (2) he possessed the firearms in question; and (3)
the firearms traveled in or affected interstate commerce.
United States v. Alanis, 265 F.3d 576, 591 (7th Cir. 2001).
Caldwell concedes that the government carried its burden
with respect to the first and third elements, but asserts that
no rational trier of fact could find that he possessed the
firearms.
“Possession may be either actual or constructive.” United
States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995). Because
Caldwell was not in actual physical possession of the guns
when his home was searched, the parties agree that the
government had to prove constructive possession in this
case. “Constructive possession exists when a person know-
ingly has the power and the intention at a given time to
No. 04-1929 5
exercise dominion and control over an object, either directly,
or through others.” United States v. Quilling, 261 F.3d 707,
712 (7th Cir. 2001).
The government introduced ample evidence to support
a finding that Caldwell had constructive possession of
the guns seized at 4758 S. Lawler. Indeed, the record
reflects that: (1) the defendant owned the house where the
weapons were found and had stated on previous occasions
that he lived there; (2) Mario Young, who visited the
defendant occasionally, testified that the defendant lived at
4758 S. Lawler; (3) the defendant’s car was parked outside
the residence on the day agents seized the firearms; (4)
closing documents for the defendant’s refinancing on the
property indicated that the defendant was the sole borrower
and the primary owner of the residence; (5) agents found
recent utility bills addressed to the defendant at the Lawler
address; (6) the defendant had furniture, dressers, a
television set, bed, nightstand, clothing, numerous pairs of
gym shoes, and food inside the residence; and (7) shortly
before the time period charged in the indictment, Mario
Young had seen the defendant with the same nine millime-
ter handgun later seized by government agents. The
foregoing evidence provided the jury with a rational basis
to conclude that the 4758 S. Lawler home was Caldwell’s
residence at the time in question, which is sufficient to
establish that he had constructive possession of the fire-
arms seized there. Kitchen, 57 F.3d at 521 (“Constructive
possession can be established by a showing that the firearm
was seized at the defendant’s residence.”).
Caldwell also argues that the evidence was deficient
in light of a statute of limitations problem. He points out
that he was indicted on September 17, 2003, for firearms
seized on September 18, 1998, dangerously close to the
applicable five-year statute of limitations. 18 U.S.C. § 3282.
The general rule is that the government may prove the
offense conduct on any day before the indictment and
6 No. 04-1929
within the statute of limitations. United States v. Leibowitz,
857 F.2d 373, 378 (7th Cir. 1988). In this case, the govern-
ment had to establish that Caldwell constructively pos-
sessed the firearms on either September 17, 1998 or
September 18, 1998, as those were the only days within the
limitations period that were also prior to the indictment
and the seizure of the firearms. The indictment, however,
was not that specific; Caldwell was charged with possessing
the firearms “on or about September 18, 1998.” In addition,
the district court instructed the jury that the date of
possession could be “reasonably close to [the date charged]
but [the government] is not required to prove the alleged
offenses happened on that exact date.” Caldwell does not
challenge the instruction; he contends only that the instruc-
tion “makes it cloudy on which date the jury did in fact
rely.”
We think that the indictment and jury instruction
should have been more specific to assure that the jury
would focus on whether he constructively possessed the
weapons on dates within the limitations period. Neverthe-
less, Caldwell’s argument fails to account for the heavy
deference we give jury verdicts. We only overturn a jury
verdict “when the record contains no evidence, regardless of
how it is weighed, from which the jury could find guilt
beyond a reasonable doubt.” United States v. Fiore, 178 F.3d
917, 924 (7th Cir. 1999). The pre-limitations period evi-
dence, such as the evidence about the kidnapping
and Young’s testimony that he saw Caldwell with the
nine millimeter in his lap, constituted probative circum-
stantial evidence that Caldwell had dominion and control of
the firearms on either September 17 or 18, and the evidence
that Young resided in the 4758 S. Lawler residence also
indicated that Caldwell constructively possessed the guns
on those dates. Although it is possible the jury decided the
case in an impermissible fashion, that possibility exists in
every case and we give jurors the benefit of the doubt unless
No. 04-1929 7
“no rational juror could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Tadros, 310 F.3d 999, 1006 (7th Cir. 2002). Because
Caldwell has not demonstrated that to be the case here, we
reject his sufficiency of the evidence challenge.
B. Admission of Evidence of Kidnapping
Caldwell next argues that the district court committed
reversible error by admitting evidence about the kidnapping
of his mother. According to Caldwell, the kidnapping
evidence was both irrelevant and unduly prejudicial.
Specifically, Caldwell asserts that “[n]othing about
Caldwell’s mother’s kidnapping, three weeks before the
charged crime, points to a motive for the defendant to
possess a gun.” App. Brief at 26. Caldwell also maintains
that the evidence is inadmissible under Rule 404(b) because
it was offered to show that Caldwell was a rich drug dealer.
We disagree.
The primary dispute at trial was whether Caldwell
constructively possessed the guns that were seized at his
home. Under Rule 401 of the Federal Rules of Evidence, any
evidence that tended to make Caldwell’s possession of the
guns more or less probable was relevant evidence. The fact
that Caldwell’s mother had been kidnapped three weeks
before Caldwell was charged with being a felon in posses-
sion gave him a strong motive to possess the firearms found
in his home. Specifically, the circumstances of the kidnap-
ping indicated that Caldwell had access to large sums of
money and that the unidentified assailants knew about it.
This surely gave Caldwell a reason to fear for his own
safety, the safety of his family, and the security of his
assets, making it more probable that he possessed the guns
in question. As the government notes, this motive theory
was confirmed by Young’s testimony at trial that Caldwell
told him that he had a gun because “my mama just got
8 No. 04-1929
kidnapped and the stick-up men have been to my house.”
Tr. 74-75.
Caldwell’s arguments to the contrary are unpersuasive.
For example, he argues that the gap between the kidnap-
ping and firearms charges made the evidence too stale to be
relevant. Yet the gap was only three weeks and the kidnap-
pers were still at large, which means that Caldwell still had
a motive to carry firearms. He also maintains that the
evidence was inadmissible “other act” evidence under Rule
404(b) in that it portrayed him as a wealthy drug dealer.
But even if the evidence could be viewed as Rule 404(b)
evidence, other act evidence is admissible under 404(b) to
establish proof of motive, which was exactly why the
evidence was offered. At any rate, any such prejudice was
minimized by the government’s agreement not to present
evidence of Caldwell’s drug dealing at trial and the district
court’s limiting instruction that there was nothing wrong or
illegal about Caldwell paying a ransom for his mother’s
release. For the above stated reasons, we conclude that the
evidence regarding Caldwell’s mother’s kidnapping was
relevant and not unfairly prejudicial. The district court did
not abuse its discretion in admitting the evidence.
C. Motion to Suppress
Caldwell also advances a Fourth Amendment challenge to
the district court’s denial of his motion to suppress the
evidence seized during the government’s September 18,
1998, search of his home. The district court rejected his
claim for two independent reasons. First, given that
Caldwell’s home was for sale at the time of the search and
Caldwell’s reluctance to admit that the house was his
because he planned to argue that he did not possess the
firearms found there, the court concluded that Caldwell
lacked standing to challenge the search because he had
failed to establish that he had a reasonable expectation of
No. 04-1929 9
privacy in the house. In the alternative, the court concluded
that the search warrant affidavit was sufficient to establish
probable cause under relevant Fourth Amendment princi-
ples. We express no opinion on the standing issue and
affirm the trial court on the ground that the affidavit was
supported by probable cause. United States v. Funches, 327
F.3d 582, 586 n.3 (7th Cir. 2003).
Prior to issuing a search warrant, a magistrate judge
must determine whether probable cause exists for doing so.
United States v. Walker, 237 F.3d 845, 850 (7th Cir. 2001).
The probable cause determination involves “a practical,
common-sense decision whether, given all the circum-
stances set forth in the affidavit before him . . . there is a
fair probability that contraband or evidence of a crime will
be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983). Whether an affidavit established probable
cause is reviewed de novo. United States v. Olson, 408 F.3d
366, 370 (7th Cir. 2005).
We have little difficulty concluding that the affidavit
in this case was supported by probable cause. The affi-
davit provided the following information as a basis for
the probable cause finding: (1) the defendant owned the
property in question; (2) a vehicle registered to the defen-
dant was observed parked outside the residence; (3) the
defendant had two previous convictions for possession of
a controlled substance; (4) the defendant had inexplicably
raised $100,000 in less than one hour as ransom for his
mother’s kidnapping; (5) the defendant had 10 registered
vehicles in his name; (6) the defendant filed income tax
returns ranging from only $1,589 to $22,534; (7) a confiden-
tial informant identified the defendant from a photo as a
drug dealer; (8) another confidential informant informed
government agents that the defendant had recently showed
him how to operate a secret compartment inside of a car,
which contained 270 grams of heroin; (9) the second
confidential informant brought $10,000 to the defendant’s
10 No. 04-1929
residence as payment for the heroin; (10) the second
informant stated that the defendant had been providing
him with heroin for six months; and (11) law enforcement
agents observed the defendant in the car with the secret
compartment in late August or early September.
Caldwell takes the divide and conquer approach to the
information laid out in the affidavit in his attempt to
portray the circumstances as innocuous. However, as the
government observes, that approach misses the point
because the decision is based on the totality of the circum-
stances. For instance, the access to cash and cars, standing
alone, is not suspicious. But add Caldwell’s very limited
income to the equation, and the lifestyle becomes a bit
suspicious. Consider those facts together with his prior
controlled substance convictions, the statements of two
confidential informants that Caldwell was dealing drugs,
and particularly the statement of one informant, arrested
the day before with 76 grams of heroin in his car, that
he bought the drugs from Caldwell at the Lawler ad-
dress and had been obtaining drugs from Caldwell for
six months, and the circumstances become very suspi-
cious. In this case, the sum of the probable cause circum-
stances was greater than their individual parts and was
more than enough to establish a fair probability that
contraband or evidence of a crime would be found at
Caldwell’s home. We accordingly reject Caldwell’s Fourth
Amendment challenge.2
2
Caldwell also takes issue with the lower court’s denial of his
request for a Franks hearing to explore the validity of the
search warrant. Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
The issue does not warrant extended discussion because Cald-
well does not come close to establishing the requisite substan-
tial preliminary showing that the affidavit contained a material
false statement or omission that was necessary to support the
finding of probable cause. Id.
No. 04-1929 11
D. Sentencing
The district court grouped the counts of Caldwell’s
conviction together pursuant to U.S.S.G. § 3D1.2(b),
arriving at a base offense level of 14. U.S.S.G. § 2K2.1(a)(6).
Due to enhancements for possession of three firearms,
possession of a firearm with an obliterated serial number,
and possession of a firearm in connection with another
felony offense, Caldwell’s adjusted offense level was 21.
That offense level, coupled with Caldwell’s criminal history
category of III, yielded a sentencing range of 46 to 57
months, and the district court sentenced him to 57 months.
On appeal, Caldwell asserts that the district court erred in
enhancing his sentence pursuant to its finding that he
possessed the firearms in connection with another felony
offense. He further asserts that the district court unconsti-
tutionally enhanced his sentence on the basis of factual
findings that were neither admitted nor proven to a jury
beyond a reasonable doubt. United States v. Booker, 125
S.Ct. 738 (2005).3 We address each claim in turn.
Caldwell’s presentence report (“PSR”) recommended
enhancing his sentence 4 levels because he possessed the
firearms in connection with drug trafficking. See U.S.S.G.
§ 2K2.1(b)(5) (“If the defendant used or possessed any
firearm or ammunition in connection with another felony
offense . . . increase by 4 levels.”). Caldwell objected to
the enhancement, asserting that the firearms seized had no
potential to facilitate illegal drug activity. Because the
3
In his reply brief, Caldwell argues that the due process
clause prevents the district court from increasing his sentence
beyond what it would have been prior to the Supreme Court’s
decision in Booker. We rejected a materially indistinguishable
argument in United States v. Jamison, 416 F.3d 538 (7th Cir.
2005), and see no need to reconsider that decision or add to
its analysis.
12 No. 04-1929
weapons were found in close proximity to drugs, drug
proceeds, and reported drug activity, the district court
overruled Caldwell’s objection to the PSR recommenda-
tion and applied the 4-level enhancement. Caldwell re-
news the objection on appeal, arguing that the firearms
were not connected to drug trafficking. The district court’s
determination on this issue was a mixed question of law
and fact and is reviewed for clear error. United States
v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996). “A factual
determination is clearly erroneous only if, after considering
all of the evidence, the reviewing court is left with the
definite and firm conviction that a mistake has been made.”
Id. (citations omitted).
Caldwell’s challenge to the § 2K2.1(b)(5) enhancement
is without merit. As we have observed in past cases, the “in
connection with” requirement is usually met where
the seized firearms are found in close proximity to drugs,
drug paraphernalia, and other obvious indications of
drug trafficking. United States v. Patterson, 97 F.3d 192,
195 (7th Cir. 1996) (affirming application of enhancement
where marijuana and firearms found in same trunk); Wyatt,
102 F.3d at 247-48 (affirming application of enhancement
where weapons found in home where defendant distributed
and stored drugs, and in close proximity to drug ledgers and
drug packaging materials); United States v. Ewing, 979 F.2d
1234, 1238 (7th Cir. 1992) (“The seizure of a firearm in close
proximity to illegal drugs is considered powerful support for
the inference that the firearm was used in connection with
the drug trafficking operation.”). As in the cited cases, the
proximity factor permitted the inference in this case that
the firearms were possessed in connection with drug
trafficking. The nine-millimeter handgun, the two-shot
derringer, and $57,000 cash were found inside a secret
compartment of a Monte Carlo parked in Caldwell’s garage.
Young testified by affidavit that Caldwell had used the
same secret compartment for storage of drugs, making it
No. 04-1929 13
likely that the $57,000 cash was drug proceeds. In addition,
marijuana was found in Caldwell’s Lawler Avenue resi-
dence along with the loaded .45 handgun. Furthermore,
Young reported that Caldwell had been distributing heroin
from his home on Lawler. Given these circumstances, it was
not clearly erroneous for the district court to conclude
that Caldwell possessed the seized firearms in connection
with drug trafficking.
Caldwell is correct that the district court’s factual find-
ings and corresponding sentencing enhancements ran afoul
of the Sixth Amendment principles explained in Booker. He
did not bring this issue to the district court’s attention by
objecting on the basis of the Sixth Amendment or Apprendi
v. New Jersey, 530 U.S. 466 (2000), at sentencing. This
forfeiture means that we may only correct error if he
demonstrates that it was plain error under Rule 52(b) of the
Federal Rules of Criminal Procedure. United States v.
Olano, 507 U.S. 725, 732-37 (1993). In United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005), we explained that
the plain error analysis as it relates to Booker errors
depends on whether the district judge would have imposed
the same sentence had he known that the guidelines were
merely advisory, which is a question that only the sentenc-
ing judge can answer. Id. at. 483-84. Consequently, we will
order a limited remand in accordance with the procedure
outlined in Paladino. Id. at 484-85.4 We will vacate and
remand the case for resentencing if the judge states that
she would have given Caldwell a different sentence had she
known that the guidelines were advisory. Id. If, on the other
hand, the judge states that she would reimpose the same
4
The fact that the district judge picked a sentence at the top
of the applicable range does not rule out the possibility that
she may have imposed a lesser sentence had she known the
guidelines were advisory. United States v. Della Rose, 403 F.3d
891, 907 (7th Cir. 2005).
14 No. 04-1929
sentence even under an advisory sentencing regime, we will
affirm the original sentence provided that it is reasonable.
Id.
III. Conclusion
For the reasons stated herein, we AFFIRM Caldwell’s
conviction and order a LIMITED REMAND with respect to
his sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-05