In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2904

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH D. DENBERG,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 CR 64--Robert L. Miller, Jr., Judge.


Argued January 20, 2000--Decided May 9, 2000



  Before COFFEY, MANION and ROVNER, Circuit Judges.

  COFFEY, Circuit Judge. On November 12, 1998, a
federal grand jury sitting in the Northern
District of Indiana returned a four-count
indictment against Keith D. Denberg./1 After
count three was dismissed upon motion of the
government, a jury found Denberg guilty of the
remaining counts, and the judge sentenced him to
365 months’ imprisonment and eight years’
supervised release on count two, and 120 months’
imprisonment and five years’ supervised release
on counts one and four; all sentences to run
concurrently and concurrent with each other.
Denberg was also assessed a $300 special
assessment and ordered to enter a drug aftercare
treatment program. On appeal, Denberg challenges
the authority of the police to enter his home as
well as evidence the district court admitted at
his trial. We affirm.

I.   BACKGROUND

  In February 1998, Denberg was living with his
girlfriend, Laura Ward, at 29203 U.S. 33 in
Elkhart, Indiana, but the relationship appeared
to have become quite strained because shortly
after midnight on February 23, 1998, police
received a 911 call regarding domestic violence
at their house. Upon arriving, the police found
Laura Ward outside panicked, crying, and clothed
in only a nightgown. She also had red marks on
her face evidencing the fact that she had been
recently struck. Ward told police that Denberg
was still inside the house and that he had
"battered her" and "grabbed her by the hair and
pulled out a large amount of hair from her head."
She also told police that her two children were
still inside the house and she wanted to get the
children out of the house.

  A police officer entered the house at 29203
U.S. 33 through an unlocked door, and immediately
saw one of Ward’s two children (her son) sleeping
on a mattress and observed Denberg near a
computer talking on the phone with a police
dispatcher telling the dispatcher that police
were not needed. Denberg, who was dressed in
underwear and a t-shirt, told police he had been
asleep in bed until the phone rang, and offered
to have the officer go down to his bed and touch
it to see if it was still warm. While talking to
Denberg in the living room, the officer noticed
drug paraphernalia and what appeared to be a
half-burned marijuana cigarette. The officer then
asked Denberg if he wanted to put some clothes on
and he replied in the affirmative. Another
officer then followed Denberg down to his bedroom
area and allowed him to get dressed. While
downstairs with Denberg, the officer observed a
bag of marijuana (Denberg told the officer that
the marijuana was for his personal use) as well
as a handgun in plain view on the dresser near
the bed. Police also observed a young girl,
approximately 4-6 years old (Ward’s daughter),
and a loaded AK-47 type weapon in plain view
within the bedroom where the child was sleeping.
Thereafter, police officers escorted Denberg
outside and placed him in a police car.

  During this time, Ward was being interviewed
while waiting in another police car, and while
Denberg was in another squad car, she was taken
into the house in order that she might get
dressed. Officers saw piles of women’s clothing
near the washer and dryer, which Ward rummaged
through to find clothing to put on. While
downstairs with Ward, officers observed still
another firearm as well as additional drug
paraphernalia. Police then asked Ward for
permission to search the house and she gave that
permission, both orally and in writing.

  Upon searching the premises, officers found
additional loaded firearms, drug paraphernalia
including marijuana bongs, and a gun cabinet.
Inside the gun cabinet, the officers discovered
a plastic bag filled with more than 57 grams of
methamphetamine, more than $8,000 cash, and yet
more loaded firearms.

  An Elkhart County Drug Task Force detective
arrived at the house while officers continued the
search pursuant to Ward’s consent. Upon
questioning by the detective, Ward gave
conflicting statements as to how long she had
lived in the house, first it was eight months and
then she stated it was eight days. Based on
Ward’s conflicting statements, a decision was
made by the supervisor of the Elkhart County Drug
Task Force that a warrant to search the house
should also be obtained. The search pursuant to
Ward’s consent was then halted and a search
warrant was obtained.

  Before trial, Denberg moved to suppress the
evidence seized by the government after a
warrantless initial search of his residence. The
judge, however, denied the motion to suppress,
finding that Denberg’s girlfriend, Ward, who
lived at Denberg’s residence, had consented to
the search of the property.

  Undeterred by the denial of his motion to
suppress, Denberg went to trial and, on March 22,
1999, Denberg filed a motion in limine to exclude
testimony of two witnesses, Adam Motheral and
Charles Eutsey, regarding "other acts" in
connection with his prior methamphetamine deals
(not charged in the indictment) between him and
the two men./2 The district court denied his
motion in limine, concluding that the evidence
was admissible under Rule 404(b).

II.    ISSUES

  Denberg challenges: 1) the denial of his motion
to suppress, arguing that the police were without
the authority to conduct the warrantless search
of his home; and 2) the district court’s decision
to admit evidence of prior drug transactions
between him and Motheral and Eutsey, arguing that
the narcotics transactions between himself and
Motheral and Eutsey were not charged in the
indictment, and thus any evidence concerning
those transactions was erroneously admitted.

III.    ANALYSIS

A.    Motion To Suppress

  1.    Standard of Review

  In reviewing the district court’s denial of the
motion to suppress, we review questions of law de
novo and review factual findings for clear error.
See United States v. Strache, 202 F.3d 980, 984
(7th Cir. 2000). A factual finding is clearly
erroneous "when, although there is evidence to
support it, the reviewing court is left with the
definite and firm conviction that a mistake has
been made." United States v. Gravens, 129 F.3d
974, 978 (7th Cir. 1997), cert. denied, 118 S.
Ct. 1333 (1998). Because the resolution of a
motion to suppress is fact-specific, we accord
special deference to the trial court, which heard
the testimony and had the opportunity to observe
the witnesses at the suppression hearing. Id.
(citing United States v. Stribling, 94 F.3d 321,
323 (7th Cir. 1996)).


  2.   Validity of the Consent to Search

  Denberg asserts that the search of his home was
unlawful and that the evidence seized should
therefore be suppressed because Ward did not have
authority to consent to a search of the premises
because she did not, in fact, live there./3

  "Although the Fourth Amendment generally
prohibits searches and seizures performed without
a warrant, there is an exception when someone
with actual or apparent authority consents to the
search or seizure." United States v. Aghedo, 159
F.3d 308, 310 (7th Cir. 1998). "[T]he consent of
one who possesses common authority over [the]
premises . . . is valid as against the absent,
nonconsenting person with whom that authority is
shared." United States v. Matlock, 415 U.S. 164,
170 (1974); see also United States v. Rosario,
962 F.2d 733, 736 (7th Cir. 1992); United States
v. Duran, 957 F.2d 499, 503 (7th Cir. 1992). The
Supreme Court explained in Matlock that common
authority "rests . . . on the mutual use of the
property by persons generally having joint access
or control for most purposes." Matlock, 415 U.S.
at 171 n. 7. Furthermore, "[u]nder the Fourth
Amendment, consent to a search may be obtained
[from] any person who has common authority over
the property." United States v. Booker, 981 F.2d
289, 294 (7th Cir. 1992). Additionally, the
government has the burden of establishing that
Ward had the required common authority to consent
to a search. See Illinois v. Rodriguez, 497 U.S.
177, 181 (1990).

  The district court did not commit clear error
in determining that Ward had actual authority to
consent to the search by the officers because,
contrary to Denberg’s contentions, we are
convinced that there is sufficient evidence in
the record that Ward lived in the home.

  Initially, Ward told officers she lived on the
premises and she signed a sworn affidavit on the
morning of February 23, 1998, stating that she
lived at 29203 U.S. 33 in Elkhart, Indiana.
Additionally, Ward’s driver’s license indicated
that 29203 U.S. 33 was her legal residence.
Furthermore, Ward received mail and bills at the
29203 U.S. 33 residence. Ward also paid rent,
along with Denberg, at times for the 29203 U.S.
33 home. Her clothing, two children, the
children’s toys, her diary, as well as her cat
were all in the home on February 23, 1998. See
Aghedo, 159 F.3d at 310 (storage of clothing can
be relevant to the question of actual authority).

  Not only did Ward tell the police that she
lived at the home, but Denberg initially informed
police officers that he and Ward had been living
together since June or July 1997 and that they
had been living at the 29203 U.S. 33 residence
since August 1997. It is interesting to note that
when the police informed Denberg that Ward would
give them consent to search the residence,
Denberg did not object. See id. (The failure to
object to a party giving consent undercuts any
later assertion that the party did not have
adequate authority to give consent.); United
States v. Saadeh, 61 F.3d 510, 518 (7th Cir.
1995) (same).

  Given the information previously referred to
herein, we agree with the trial judge that Ward
had actual authority to consent to the search of
the residence at 29203 U.S. 33, and hold that he
did not commit clear error in denying the motion
to suppress./4

B. Motion in limine to exclude "other acts"
evidence under Fed. R. Evid. 404(b)

  1.   Standard of Review

  We review the district court’s decision to
admit the disputed evidence for an abuse of
discretion. United States v. Flores, 5 F.3d 1070,
1080 (7th Cir. 1993). "The district court’s
determination of the admissibility of evidence
’is treated with great deference because of the
trial judge’s first-hand exposure to the
witnesses and the 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.’"
United States v. Curry, 79 F.3d 1489, 1495 (7th
Cir. 1996) (quoting United States v. Torres, 977
F.2d 321, 329 (7th Cir. 1992)).

  Denberg also asserts that the admission into
evidence of the testimony of "other acts"
evidence not charged in the indictment from
Motheral and Eutsey violated Fed. R. Evid. 404(b)
and Fed. R. Evid. 403./5

  The 4-prong test for admissibility of Rule
404(b) evidence is whether:

(1) the evidence is directed toward establishing
a matter in issue other than the defendant’s
propensity to commit the crime charged, (2) the
evidence shows that the other act is similar
enough and close enough in time to be relevant to
the matter in issue, (3) the evidence is
sufficient to support a jury finding that the
defendant committed the similar act, and (4) the
evidence has probative value that is not
substantially outweighed by the danger of unfair
prejudice.

United States v. Gibson, 170 F.3d 673, 678 (7th
Cir. 1999); see also United States v. Lloyd, 71
F.3d 1256, 1264 (7th Cir. 1995). In "weighing the
probative value of evidence against the dangers
and considerations enumerated in Rule 403, the
general rule is that the balance should be struck
in favor of admission." United States v. Dennis,
625 F.2d 782, 797 (8th Cir. 1980) (citations
omitted). See also United States v. Candelaria-
Silva, 162 F.3d 698, 705 (1st Cir. 1998) ("Rule
403 tilts the balance in favor of admission");
United States v. Aramony, 88 F.3d 1369, 1378 (4th
Cir. 1996) ("the balance under Rule 403 should be
struck in favor of admissibility").
  On appeal, Denberg challenges the judge’s
decision to admit the evidence on the first and
fourth prongs (the evidence is directed toward
establishing a matter in issue other than the
defendant’s propensity to commit the crime
charged and the evidence has probative value that
is not substantially outweighed by the danger of
unfair prejudice); he concedes that the evidence
demonstrates that the other acts are similar
enough and close enough in time to be relevant
and that the evidence is sufficient to support a
finding that he committed the similar acts (the
second and third prongs)./6

  On appeal, Denberg argues that "the danger was
high, if not an actuality, that the jury could
not and would not separate the purpose of their
consideration of the ’other acts’ from their
consideration of the guilt or innocence of Mr.
Denberg as to the crimes with which he was
actually charged." Denberg’s other argument is
that because the "Government offered ample
circumstantial evidence in the issue of intent"
the introduction of evidence from Motheral and
Eutsey was unfairly prejudicial.


  2.   Propensity to commit the crime

  With regard to the first prong, whether the
evidence from Motheral and Eutsey was directed
toward establishing a matter in issue other than
Denberg’s propensity to commit methamphetamine
distribution, we are of the opinion that
Denberg’s "high danger" argument is without
merit.
  First and foremost, Denberg was charged with a
specific intent crime (possession of
methamphetamine with intent to distribute) where
the government was required to prove beyond
reasonable doubt that Denberg possessed the more
than 57 grams of methamphetamine seized on
February 23, 1998, with the intent to distribute
that methamphetamine. This court has long held
that it is proper to use other acts evidence to
establish intent. See United States v. Chaimson,
760 F.2d 798, 808 (7th Cir. 1985). See also
United States v. Long, 86 F.3d 81, 84 (7th Cir.
1996) ("[w]hen a defendant is charged with a
specific intent crime, the government may present
other acts evidence to prove intent"); United
States v. Harvey, 959 F.2d 1371, 1374 (7th Cir.
1992) (similar acts show intent); United States
v. Neely, 980 F.2d 1074, 1088 (7th Cir. 1992).

  In particular, this court has held that proof
of uncharged acts of drug trafficking are
"relevant and probative of whether [the
defendant] had the intent to sell the narcotics
in question." United States v. Allison, 120 F.3d
71, 75 (7th Cir. 1997), cert. denied, 118 S. Ct.
455 (1997); United States v. Hernandez, 84 F.3d
931, 935 (7th Cir. 1996) (evidence of other drug
trafficking was relevant to show defendant’s
intent to distribute the drugs he possessed). For
example, in United States v. Lewis, 110 F.3d 417,
420 (7th Cir. 1997), the defendant was charged
under 21 U.S.C. sec. 846 with being part of a
drug trafficking conspiracy. This court held that
the defendant was charged "with a specific intent
crime and the admission of the other crimes
evidence for the limited purpose of proving
knowledge and intent was proper." Id. In United
States v. Tringali, 71 F.3d 1375, 1379 (7th Cir.
1995), this Court held that the admission of
evidence of the defendant’s other drug
trafficking specifically for the purpose of
demonstrating the defendant’s knowledge and
intent was proper. In this case, the evidence of
Denberg’s prior drug trafficking activities
demonstrated his knowledge, experience, ability,
and intent to traffic in significant quantities
of narcotics. The evidence was properly admitted
under the first prong of the test.


 3.   Unfair prejudice

  With regard to the fourth prong, Denberg argues
that the district court abused its discretion in
permitting the reception in evidence of
Motheral’s and Eutsey’s testimony regarding this
other acts evidence (prior drug deals not charged
in the indictment) because the probative value of
the evidence was substantially outweighed by the
unfair prejudice in admitting the testimony of
the two men. As we have repeatedly stated,
"relevant evidence is, by its very nature,
prejudicial, and that evidence must be unfairly
prejudicial to be excluded. Evidence is unfairly
prejudicial only if it will induce the jury to
decide the case on an improper basis, commonly an
emotional one, rather than on the evidence
presented." Long, 86 F.3d at 86 (emphasis added).

  Motheral’s and Eutsey’s testimony concerning
Denberg’s methamphetamine distribution in late
1997 and early 1998 was, as Denberg admitted, but
a small part of a considerable "volume" of
evidence offered by the government. The danger of
unfair prejudice from the admission of the "other
acts" evidence was slight when compared to the
very important probative value of establishing
that Denberg was involved in ongoing
methamphetamine distribution. Additionally, it is
important to note that the trial judge gave
several detailed limiting instructions concerning
the testimony of Motheral and Eutsey,/7 and this
court has held many times that limiting
instructions are effective in reducing or
eliminating any possible unfair prejudice from
the introduction of Rule 404(b) evidence. See,
e.g., United States v. Brooks, 125 F.3d 484, 500
(7th Cir. 1997) ("limiting instructions are
sufficient to cure any potential prejudice
resulting from the admission of 404(b)
evidence"); United States v. Tylkowski, 9 F.3d
1255, 1262 (7th Cir. 1993); United States v.
Bell, 980 F.2d 1095, 1098 (7th Cir. 1992) (the
instruction limited any prejudice, and the jury
is presumed to have obeyed the court’s
instruction). Consequently, the trial judge did
not commit an abuse of discretion in admitting
the testimony of Motheral and Eutsey.

  The decision of the district court is

AFFIRMED.



/1 Count One charged Denberg with being a felon in
possession of a firearm in violation of 18 U.S.C.
sec.sec. 922(g)(1), 924(a)(2), and 924(e). Count
Two charged Denberg with possession with intent
to distribute in excess of 10 grams of
methamphetamine in violation of 21 U.S.C. sec.
841(a)(1). Count Three, which was later dropped
by the government, charged Denberg with the use
and carrying of a firearm during and in relation
to a drug trafficking crime in violation of 18
U.S.C. sec. 924(c). Count Four charged Denberg
with possession of a firearm while being an
unlawful user of a controlled substance in
violation of 18 U.S.C. sec. 922(g)(3).
/2 Denberg distributed significant quantities of
methamphetamine on a "front" or credit basis to
Motheral for further distribution for about two
months. The defendant also supplied
methamphetamine to Charles Eutsey on numerous
occasions from his house.

/3 Although we address the merits of the claim,
counsel for the appellant falsely certified that
he complied with Circuit Rule 30 (he failed to
attach transcripts of the district court’s oral
rulings). Fortunately, the government supplied
the missing material, but we warn counsel to be
more careful in the future or face possible
sanctions. See, e.g., Pabst Brewing Co. v.
Corrao, 161 F.3d 434, 437 n. 1 (7th Cir. 1998);
Hibben v. Nardone, 137 F.3d 480, 481 n. 1 (7th
Cir. 1998); Tangwall v. Stuckey, 135 F.3d 510,
515 n. 10 (7th Cir. 1998); Hill v. Porter Mem.
Hosp., 90 F.3d 220, 225-27 (7th Cir. 1996).

/4 Denberg also objects to the scope of the
warrantless search conducted by the officers
contending that, even if Ward’s consent to search
the premise was valid in general, she was without
the authority to consent to the search of the
locked gun cabinet. However, this argument is
without merit because at trial, Denberg testified
that Ward had a key to the gun cabinet. We are of
the opinion that the fact that Ward had a key to
the cabinet clearly demonstrates that she had
joint use and control over the cabinet as well as
the contents contained therein, and as such could
consent to a search of the cabinet. Furthermore,
the Supreme Court has made it clear that a
"lawful search of fixed premises generally
extends to the entire area in which the object of
the search may be found and is not limited by the
possibility that separate acts of entry or
opening may be required to complete the search."
United States v. Ross, 456 U.S. 798, 820-821
(1982); see also Forman v. Richmond Police
Department, 104 F.3d 950, 959 (7th Cir. 1997).

/5 Rule 404(b) provides that "[e]vidence of other
crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity therewith. It may, however,
be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the
accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial."
Fed. R. Evid. 404(b). Rule 403 provides that
"[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
Fed. R. Evid. 403.

/6 Although Denberg does state in his brief that
"[w]e could argue all day about . . . whether the
evidence was sufficient for the trial court to
conclude that the second prong of the test has
been met . . . ," he fails to address the issue
in his brief and we, therefore, refuse to
consider this issue on appeal. See e.g., Gagan v.
American Cablevision, Inc., 77 F.3d 951, 965 (7th
Cir. 1996) (failure to cite any factual or legal
basis for an argument waives it); Bratton v.
Roadway Package Sys., Inc., 77 F.3d 168, 173 n.1
(7th Cir. 1996) (argument that is not developed
in any meaningful way is waived).

/7 For example, before Eutsey was allowed to testify
the judge informed the jury that:

Mr. Eutsey--or the next witness who will be
testifying--will be giving testimony about
certain events that he’ll say took place, dealing
with Mr. Denberg. You may consider that evidence,
but only for this purpose: If you find that Mr.
Denberg possessed the methamphetamine alleged in
Count 2, the government must further prove to you
that Mr. Denberg intended to distribute that
methamphetamine. You may consider this testimony
from the next witness in helping you decide that
issue of intent, in deciding that Mr. Denberg
intended, if you first find that he possessed it.
You may not, however, consider this evidence for
any other purpose.
