In theIn the
United States Court of Appeals
For the Seventh Circuit

No. 00-1808

United States of America,

Plaintiff-Appellee,

v.

Gabriel B. Folks,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 30055--Jeanne E. Scott, Judge.


Argued September 14, 2000--Decided January 5, 2001




      Before Cudahy, Easterbrook, and Ripple, Circuit
Judges.

      Cudahy, Circuit Judge. Gabriel Folks was indicted
for possession of a controlled substance with
intent to distribute "[o]n or about May 6, 1999,"
in violation of 21 U.S.C. sec. 841(a)(1).
Following a jury trial, Folks was convicted and
sentenced to 30 years of imprisonment, to be
followed by eight years of supervised release.
Folks appeals, arguing that (1) evidence obtained
during the search of his residence should have
been suppressed; (2) certain jury instructions
were not supported by the evidence; and (3) the
prosecution constructively amended the indictment
at trial. We affirm.

I.   BACKGROUND
1.

      On May 5, 1999, two Springfield, Illinois,
police officers investigated drug activity at
1424 East Brown Street in Springfield. As part of
their investigation, the officers retrieved
approximately 300 plastic sandwich bags from two
trash cans located in the alleyway behind the
residence. Several of these sandwich bags
contained crack cocaine and marijuana residues,
and 14 fingerprints on nine of these bags
belonged to Folks.
      On May 6, 1995, at approximately 12:40 a.m.,
police officers executed a search warrant at 1424
East Brown Street. When the police arrived at the
home, no lights were visible on the inside. The
officers approached the house, knocked on the
front door and announced their presence. There
was no response from within, and after
approximately 10 seconds the officers forced open
the front door. After quickly looking inside, the
officers tossed a flash-bang device into the
house./1 They then entered the house, finding
Jonathon Norris in the living room, lying on a
couch with a revolver by his side, and Folks in
the back bedroom.

      During their search of the residence, the
officers found a jacket near the area where
Norris was sleeping. Inside the jacket, the
officers found a bag containing what they
believed to be crack cocaine. Folks admitted to
his ownership of the jacket, but not of the
drugs. Upon searching Folks, the officers also
found $520 and a small amount of marijuana. In
the remainder of the house, the officers found a
digital scale, several sandwich bags and a shoe
box containing crack cocaine. Both the bags and
the scale appeared to contain drug residue, and
Folks’ fingerprints were on both of them.

      A one-count indictment charged Folks with
possession of a controlled substance with intent
to distribute "[o]n or about May 6, 1999," in
violation of 21 U.S.C. sec. 841(a)(1).

2.

       Folks centers his appeal around three aspects
of his prosecution. First, Folks filed a motion
to suppress the evidence seized during the search
of 1424 East Brown Street, arguing that the use
of a flash-bang device in executing the search
was unreasonable. The trial court denied the
motion to suppress, and the case proceeded to
trial.

      Second, at trial, witness testimony indicated
that, no earlier than mid-March 1999, Folks
participated in transporting crack cocaine from
Chicago to Springfield, helped bag it in
Springfield and then sold it from 1424 East Brown
Street. Nonetheless, during the jury instruction
conference, Folks objected to the constructive
possession and aiding and abetting jury
instructions, arguing that the evidence did not
support them. Both of these instructions were
given over Folks’ objection.

      Lastly, in its closing argument, the government
asserted that there were two bases for Folks’
guilt. First, the government argued that the
evidence showed Folks’ guilt because his
fingerprints were present on the bags and scale
found inside the house, as well as on the bags
found outside in the trash. Second, the
government argued that, because Folks and Norris
entered into a conspiracy to possess crack
cocaine with intent to distribute it, Folks was
guilty of any crime committed by Norris in
furtherance of the conspiracy--mainly, possessing
with intent to distribute the crack cocaine that
Norris placed in Folks’ jacket. Folks was
convicted by the jury and sentenced to a 30-year
term of imprisonment, to be followed by an eight-
year term of supervised release.

II.   DISCUSSION
1.

      We first address Folks’ claim that evidence
obtained during the search of 1424 East Brown
Street should be suppressed because it was
acquired in an unreasonable manner. The
reasonableness of a search and seizure is
analyzed under the Fourth Amendment to determine
whether officers’ actions were "objectively
reasonable" under the circumstances confronting
them. See Graham v. Connor, 490 U.S. 386, 397
(1989) (quoting Scott v. United States, 436 U.S.
128, 137-39 (1978)). We review de novo the
district court’s determination of reasonableness.
See United States v. Husband, 226 F.3d 626, 629
(7th Cir. 2000).

      Folks bases his argument entirely upon the
alleged unreasonableness of using a flash-bang
device during the raid of an unlit residence at
night. However, at oral argument Folks recognized
United States v. Jones, 214 F.3d 836 (7th Cir.
2000), which was decided only a few days after
Folks filed his opening brief in this case, as
"kind of a brick wall for our [suppression]
argument." In Jones, we questioned the use of a
flash-bang device in connection with the search
of a residence, but nonetheless admitted evidence
found during the search under the inevitable
discovery doctrine. 214 F.3d at 838. That
doctrine serves to admit evidence that, while
perhaps questionably secured by the police, would
nonetheless have been discovered if the search
had been conducted more reasonably. See Murray v.
United States, 487 U.S. 533, 539 (1988); Jones,
214 F.3d at 838. Folks is correct to recognize
that the inevitable discovery doctrine applies
here. The police would certainly have discovered
the evidence during their search of 1424 East
Brown Street even without the use of a flash-bang
device--they did, after all, have a valid search
warrant--and we need not discuss the merits of
Folks’ Fourth Amendment argument further.
      We do, however, pause to note the potentially
serious injuries that may arise from the use of
a flash-bang device during a search. See, e.g.,
Kirk v. Watkins, No. 98-7052, 1999 WL 381119, at
*2 (10th Cir. June 11, 1999) (unpublished)
(flash-bang device landed on defendant’s bed,
exploded and burned defendant); Means v. United
States, 176 F.3d 1376, 1378 (11th Cir. 1999)
(flash-bang device burned plaintiff’s leg,
fractured small left toe and blew nail off toe).
Even when use of a flash-bang device has not
resulted in actual, physical harm, courts have in
some circumstances justifiably questioned the
device’s use. See, e.g., Jones, 214 F.3d at 838
(The use of a flash-bang device "created a risk
that people close to the detonation point would
be injured."); United States v. Myers, 106 F.3d
936, 940 (10th Cir. 1997) ("The use of a
’flashbang’ device in a house where innocent and
unsuspecting children sleep gives us great
pause.").

      In spite of their serious reservations, none of
these courts excluded evidence obtained as a
result of the challenged searches. Even so, the
government should be restrained in celebrating
these outcomes: searches in which people are
injured can, and occasionally do, result in tort
or civil rights actions against the government.
See, e.g., Means, 176 F.3d 1376; Henry v. Bd. of
Leavenworth County, Comm’rs, 64 F.Supp.2d 1042
(D. Kan. 1999). In such actions, of course,
inevitable discovery is not a defense. The
government may thus risk significant damage
claims from the careless deployment of flash-bang
devices./2

2.

      Folks next argues that two jury instructions--
involving constructive possession and aiding and
abetting--were not supported by the evidence.
Jury instructions are viewed as a whole and "[i]f
the instructions are adequately supported by the
record and are fair and accurate summaries of the
law, the instructions will not be disturbed on
appeal." United States v. Lanzotti, 205 F.3d 951,
956 (7th Cir. 2000).

a.   Constructive Possession

      Constructive possession of a controlled
substance is established by proving that "the
defendant had the ability to exercise control
over the narcotics, that is, the power to possess
them." United States v. Molinaro, 877 F.2d 1341,
1348 (7th Cir. 1989). Under the doctrine of
constructive possession, "a person can be
convicted for possessing cocaine though he does
not possess it in a literal sense." United States
v. Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986);
see also United States v. Garrett, 903 F.2d 1105,
1112 (7th Cir. 1990) (and cases cited therein).
However, a constructive possession jury
instruction must have evidentiary support. See
United States v. James, 819 F.2d 674, 675-76 (6th
Cir. 1987) (cited with approval in Bankcard Am.,
Inc. v. Universal Bancard Sys., Inc., 203 F.3d
477, 484-85 (7th Cir. 2000)).

      Folks contends that because there was no
evidence that he knew of either the drugs found
in his jacket pocket or of those found in the
shoe box,/3 he could not have constructively
possessed either of the drug quantities found
during the search. Folks forgets, however, that
drugs other than those found in his jacket or in
the shoe box were at issue during the trial--the
police also found bags (both inside the house and
outside, in the garbage) with drug residue and
Folks’ fingerprints on them, as well as a scale,
also with drug residue and Folks’ fingerprints on
it. In addition, the following evidence was
presented at trial: (1) Folks was either the
lessee or the lessor of 1424 East Brown
Street;/4 (2) Folks participated in transporting
the crack cocaine to the residence; (3) Folks
helped package the crack cocaine at the
residence; and (4) Folks helped distribute the
crack cocaine from the residence. All of this
evidence clearly points to Folks’ ability to
exercise control over the crack cocaine found at
or near 1424 East Brown Street. In light of the
above, then, there was more than sufficient
evidence to support giving the constructive
possession instruction.

b.   Aiding and Abetting

      Aiding and abetting is established by showing
that the defendant had "knowledge of the illegal
activity that is being aided and abetted, a
desire to help the activity succeed and
[participated in] some act of helping." United
States v. Lanzotti, 205 F.3d 951, 956 (7th Cir.
2000). Under an aiding and abetting theory,
"[p]articipation may be established by
circumstantial evidence, and the evidence may be
of relatively slight moment." United States v.
Coleman, 179 F.3d 1056, 1061 (7th Cir. 1999)
(quoting United States v. McKneely, 69 F.3d 1067,
1072 (10th Cir. 1995)).

   Folks argues that the evidence adduced at trial
did not support the giving of an aiding and
abetting jury instruction, reiterating that he
did not know of the drugs in his jacket or in the
shoe box. Again, Folks’ argument fails. As noted,
the drugs found in Folks’ jacket and in the shoe
box were not the only evidence of Folks’
involvement with the drug trade at his residence.
Folks’ fingerprints were found on numerous
sandwich bags that contained drug residue, as
well as on a scale that contained drug residue.
Further, testimony at trial indicated that Folks
brought crack cocaine into the residence and,
after helping to bag it, participated in selling
it from the residence. This evidence is a
sufficient indication of Folks’ knowledge of the
drug trade occurring at his residence, his desire
to help that trade and his participation in an
act of helping that trade. Accordingly, the
district court properly gave the aiding and
abetting jury instruction.

c.   Harmless Error

      Even if these jury instructions had been given
in error, the error would be harmless under the
facts of this case. An incorrect jury instruction
is harmless if a properly instructed jury would
have reached the same verdict. See United States
v. Thomas, 86 F.3d 647, 651 (7th Cir. 1996). In
this case, Folks’ fingerprints were found on
several plastic sandwich bags and a scale, all of
which were covered with drug residue. In
addition, a trial witness testified to Folks’
involvement with the drug distribution occurring
at 1424 East Brown Street, indicating that Folks
packaged and distributed crack cocaine inside the
residence. This is abundant evidence to convict
Folks of actually possessing a controlled
substance with intent to distribute. As a result,
a jury would have convicted Folks of possessing
with intent to distribute a controlled substance
regardless whether or not it had received the
constructive possession or aiding and abetting
instructions.

3.

      Folks lastly argues that his indictment was
constructively amended by the government’s
closing argument. At closing argument, the
prosecutor declared that the presence of Folks’
fingerprints on the plastic bags found in the
trash cans behind 1424 East Brown Street, as well
as the presence of Folks’ fingerprints on the
plastic bags and scale found inside of the
residence, established that Folks had possessed
crack cocaine with intent to distribute it.

      Folks takes specific issue with the prosecutor’s
contention that the plastic bags found in the
trash served as a potential basis for a guilty
verdict, urging that this assertion
constructively amended the indictment in
violation of the Fifth Amendment to the
Constitution. "A constructive amendment to an
indictment occurs when either the government . .
. the court . . . or both, broadens the possible
bases for conviction beyond those presented by
the grand jury." United States v. Cusimano, 148
F.3d 824, 829 (7th Cir. 1998) (quoting United
States v. Floresca, 38 F.3d 706, 710 (4th Cir.
1994)). Permitting an indictment to be
constructively amended thus violates the Fifth
Amendment, which states in pertinent part that
"[n]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury." See
United States v. Willoughby, 27 F.3d 263, 266
(7th Cir. 1994). To avoid running afoul of the
Fifth Amendment, the allegations in the
indictment and the proof at trial must match in
order "to insure that the defendant is not
subject to a second prosecution, and to give the
defendant reasonable notice so that he may
prepare a defense." United States v. McKinney,
954 F.2d 471, 480 (7th Cir. 1992).

      Because Folks failed to object contemporaneously
to the prosecutor’s statements, we review only
for plain error. See Cusimano, 148 F.3d at 828.
In order for Folks to prevail under the plain
error standard, he must show: (1) that there was
error; (2) that the error was plain; (3) that the
error affected his substantial rights; and (4)
that the error seriously affected the fairness,
integrity or public reputation of judicial
proceedings. See Johnson v. United States, 520
U.S. 461, 466-67 (1997); United States v. Remsza,
77 F.3d 1039, 1044 (7th Cir. 1996). Under the
plain error standard, a constructive amendment
"must constitute ’a mistake so serious that but
for it the [defendant] probably would have been
acquitted’ in order for us to reverse." Remsza,
77 F.3d at 1044 (7th Cir. 1996) (quoting United
States v. Gunning, 984 F.2d 1476, 1482 (7th Cir.
1993)).

      Folks urges that the prosecutor’s reference to
the bags found in the trash constructively
amended the indictment because: (1) the statement
impermissibly broadened the dates of his alleged
conduct beyond the "[o]n or about May 6, 1999"
period alleged in the indictment and (2) the
statement impermissibly broadened the conduct he
is liable for beyond the possession with intent
to distribute the crack cocaine found during the
search of the house. First, we address the
contention that the prosecution constructively
amended the indictment to include conduct outside
of the period described as "[o]n or about May 6,
1999." A reasonable change in the date specified
in an indictment does not, in general,
impermissibly amend the indictment. See United
States v. Leichtnam, 948 F.2d 370, 376 (7th Cir.
1991). In fact:
Where the indictment alleges that an offense
allegedly occurred "on or about" a certain date,
the defendant is deemed to be on notice that the
charge is not limited to a specific date. He
therefore cannot make the requisite showing of
prejudice based simply on the fact that the
government has failed to prove a specific date.
. . . The courts agree that when the indictment
uses the "on or about" designation, proof of a
date reasonably near to the specified date is
sufficient. . . .

United States v. Leibowitz, 857 F.2d 373, 379
(7th Cir. 1988) (citations omitted). Indeed,
"[u]nless the particular date is an element of
the alleged offense, it is generally sufficient
to prove that the offense was committed on any
day before the indictment and within the statute
of limitations." Id. at 378.

      21 U.S.C. sec. 841 does not make the date of
the charged conduct an element of the crime of
possession with intent to distribute. It is
therefore sufficient to show that the conduct
occurred prior to the date alleged in the
indictment, but not so far in the past as to fall
outside of the five-year statute of limitations
provided by 18 U.S.C. sec. 3282. Testimony at
trial indicated that Folks began packaging and
selling drugs at 1424 East Brown Street in mid-
March or April 1999, at most two months before
the date alleged in the indictment. The bags
found in the trash were thus surely produced no
earlier than mid-March 1999 and were thus used to
package crack cocaine before the date alleged in
the indictment, but well within the statute of
limitations.

      Folks next argues that the indictment was
impermissibly amended not only by a change in the
date of occurrence itself, but also by a change
in the identity of the drugs on which the
government relied to convict him. Folks bases
this identity argument on a deduction from the
date, "[o]n or about May 6, 1999." Because that
is the date upon which Folks’ residence was
searched, Folks construes the indictment as
charging him only with possession of drugs found
inside the searched residence.

      Folks’ reading of the indictment might well be
correct if it charged him specifically only with
the possession of the drugs found inside his
residence at the time of the search. But such
specificity is not found in the indictment.
Instead, the single count charges, in relevant
part, that "[o]n or about May 6, 1999 . . . the
defendant, GABRIEL B. FOLKS, knowingly and
intentionally possessed a controlled substance,
namely a mixture or substance containing cocaine
base (’crack’) . . . with the intent to
distribute it." The indictment thus broadly
charges one offense. When an indictment is so
broadly worded, "[t]he government’s presentation
of multiple factual scenarios to prove that
offense does not render the count duplicitous .
. . ." United States v. Washington, 127 F.3d 510,
513 (6th Cir. 1997) (government offered proof of
two separate drug transactions to establish
defendant’s guilt under one count of indictment);
see also United States v. Klat, 156 F.3d 1258,
1266 (D.C. Cir. 1998) (numerous allegedly
threatening acts against two Supreme Court
Justices, in violation of 18 U.S.C. sec.sec. 115
and 1114, may be charged in a single count if
acts represent part of single, continuing
scheme). Because Folks’ one-count indictment is
not duplicitous, but instead alleges only one
offense that may be proved by varied fact
patterns, the presentation during closing
argument of several factual scenarios to
establish guilt does not constructively amend the
indictment. The government may thus argue Folks’
guilt based not only upon the crack cocaine found
in Folks’ residence, but also upon the bags found
in the trash.

      Further, we note that none of the concerns
raised by alleged constructive amendments--
namely, impairment of the ability of a defendant
to prepare a defense and the possibility of
double jeopardy--are in play in this case. First,
Folks was aware of the government’s attempt to
establish his guilt through the bags found in the
trash. Folks defended against this showing
throughout his trial, responding to the theory in
his opening and closing statements, as well as by
cross-examination of government witnesses. There
is thus every indication that Folks adequately
defended himself against this aspect of the
government’s case. Second, there is no
possibility that Folks will be subject to a
second prosecution for the possession of crack
cocaine with intent to distribute in the spring
of 1999; the indictment is simply too broadly
worded to allow for such an outcome. Accordingly,
for all these reasons, there was no impermissible
amendment to Folks’ indictment.

III.   CONCLUSION

      For the foregoing reasons, the conviction and
sentence in this case are

Affirmed.
/1 At trial, a government witness described a flash-
bang device as "a large firecracker inside a
metal housing." The device is commonly used to
distract occupants of a house as police enter to
execute a search warrant.

/2 However, it appears that the government was
sufficiently careful in this case. The police
quickly looked into the residence before tossing
the flash-bang device to make sure no one would
be injured by the device’s use, and the police
carried a fire extinguisher to quickly extinguish
any fires resulting from deployment of the
device. Further, use of the device was justified
by the officers’ belief that gang members
inhabited 1424 East Brown Street. The fact that
Norris was found sleeping with a gun by his side
when the police entered the residence validated
police suspicions that potentially violent people
could be found in the house.

/3 At trial, the government disclaimed any
allegation that Folks knew of the crack cocaine
found in the shoe box. As a result, we do not
consider this hoard of crack cocaine in assessing
the evidence against Folks.


/4 A lease dated May 5, 1999 was fastened to the
wall in one of the rooms at 1424 East Brown
Street. The front page of the lease designated
Folks as the lessor of the residence and
Rodriguez Jones as the lessee. Confusingly, the
back side of the lease apparently indicated the
opposite--that Folks was the lessee and Jones the
lessor.
