In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1314

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GARY C. QUILLING,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 30059--Richard Mills, Judge.

ARGUED MAY 15, 2001--DECIDED August 20, 2001



  Before RIPPLE, MANION and DIANE P. WOOD,
Circuit Judges.

  RIPPLE, Circuit Judge. Gary Quilling was
charged by indictment with one count of
being a felon in possession of a firearm
and with one count of being a felon in
possession of firearm ammunition, both in
violation of 18 U.S.C. sec. 922(g)(1). A
jury found Mr. Quilling guilty on both
counts, and he was sentenced to seventy-
eight months’ imprisonment and three
years of supervised release. For the
reasons set forth in the following
opinion, we affirm the judgment of the
district court.

I

BACKGROUND

A.   Facts

  In the evening on September 3, 1998,
members of the Violent Crime Initiative
Task Force ("task force"), comprised of
federal and local law enforcement
officers, were patrolling an area of East
St. Louis, Illinois. The officers
werepatrolling in both marked and
unmarked vehicles in an organized
formation.

  At approximately 8:45 p.m., the task
force came upon a 1984 gray, four-door
Chevrolet car bearing the license plate
"Gary Q 1." A member of the patrol,
Officer Nick Mueller, radioed to the rest
of the group, "That’s Gary Quilling’s ve
hicle." Tr.IX at 39. Mr. Quilling was
driving the car. He parked and began
walking away from the car. Frank
Jefferson, a passenger, also exited the
vehicle. Deputy Marshal/1 Lawrence
Kelly, a member of the patrol, pulled his
vehicle parallel to Mr. Quilling’s car.

  Another officer at the scene, Officer
James Jones, saw Mr. Quilling walking
away and said, "Hey Gary, we need [ ] to
talk to you." Id. at 66. Mr. Quilling
began walking back toward the car
voluntarily. Marshal Kelly walked up to
the passenger side of Mr. Quilling’s car,
where Jefferson was standing, and shined
his flashlight into the car. He noticed a
handgun on the front seat of the
automobile. Marshal Kelly said in a loud
voice, "Whose gun is this in the car?"
Id. at 48. Mr. Quilling replied, "It’s
not my gun." Id. at 68. Marshal Kelly
attempted to retrieve the gun by opening
the passenger door, but he was
unsuccessful.

  Marshal Kelly briefly spoke to Jefferson
at the scene. At that time, Jefferson
stated that he did not know to whom the
firearm belonged, but that it was not
his. That night, Jefferson made and
signed a statement claiming no knowledge
or ownership of the firearm. However,
Jefferson later testified at Mr.
Quilling’s trial that the firearm did
belong to him and that he had lied at the
scene and had made a false statement at
the United States Marshal’s office
because he was "scared." Id. at 181.

  After Mr. Quilling said, "It’s not my
gun," he dropped the keys to the
automobile and did not attempt to pick
them up. Marshal Tom Woods then
approached the automobile from the
driver’s side and saw the firearm on the
seat; he leaned through the open driver’s
side window and seized the firearm. Both
Marshal Kelly and Marshal Woods later
testified that the barrel of the firearm
was facing the passenger window, the butt
of the firearm was pointed toward the
rear of the automobile, and the firearm
was placed near the center armrest next
to where the driver’s right thigh would
be.
  Investigator Phillip Delaney, a part-
time member of the task force, approached
Mr. Quilling and escorted him to the
patrol vehicle that Investigator Delaney
and Marshal Woods had been driving. They
both sat in the rear of the vehicle.
Because he had come in contact with Mr.
Quilling previously, Investigator Delaney
asked Mr. Quilling if he remembered him;
Mr. Quilling replied that he did. Mr.
Quilling then asked, "What’s going to
happen to me?" Id. at 105. Investigator
Delaney told Mr. Quilling that the
officers were going to take him to the
United States Marshal’s office to talk
about the gun. Mr. Quilling then said,
"You know I need that because I was shot
before." Id. at 106. Investigator Delaney
ended the conversation by saying, "Gary,
we’re going to advise . . . you of your
rights at the Marshal’s Office, we’ll
talk about it there." Id. That night Mr.
Quilling was taken to the United States
Marshal’s office, but he did not make a
statement and was released shortly
thereafter.

  Seven months later, on April 28, 1999,
four members of the task force went to a
house located at 9 Cahokia Street n
Cahokia, Illinois, to execute an arrest
warrant for Mr. Quilling in reference to
the possession of the firearm. The task
force went to that address because it was
a "known address" for Mr. Quilling, id.
at 144-45, and Mr. Quilling’s automobile
was visible in the driveway.

  The house at 9 Cahokia Street isa
single-story home. It contains a great
room, a kitchen and eating area and one
back bedroom. The task force approached
the house. Marshal Sean Newlin and
Officer Mueller went to the front door
while two other officers went to the rear
of the house. Officer Mueller knocked on
the front door and announced "police" and
"open the door." Id. at 149. Shortly
after Officer Mueller began knocking on
the front door, the officers in the rear
of the house began knocking on windows
and calling Mr. Quilling’s name.

  After approximately five to fifteen
minutes,/2 a man, later identified as
Joe King, answered the door and stated
that, although he would not let the
officers in, he would get the person who
resided there. Approximately ten to
twenty minutes later, Mr. Quilling walked
out of the front door onto the front
porch. After Mr. Quilling was handcuffed
and taken into custody, Marshal Newlin
again knocked on the door of the
residence. Mr. Quilling’s girlfriend,
LaDonna Dixon, answered the door and
allowed Marshal Newlin into the front
room of the house.

  At that time, Mr. Quilling was brought
back into the front room. Marshal Newlin
asked who lived in the residence. In
unison, Mr. Quilling and Dixon responded,
"We do." Id. at 153. Marshal Newlin then
asked whose name was on the lease, and
Dixon replied that only her name was on
the lease. Marshal Newlin then asked for
and received Dixon’s permission to search
the house.

  While searching the bedroom, the
officers found a box of .38 caliber
ammunition on a table at the base of the
bed and at least one loose round of the
same ammunition in the bed. The officers
seized the box of ammunition and the
loose round. Later, this ammunition was
examined by Thomas Gamboe, a forensic
scientist employed by the Illinois State
Police. Gamboe offered expert testimony
at Mr. Quilling’s trial as to how the
properties of the ammunition seized from
the house on 9 Cahokia Street compars
to the ammunition taken from the gun
seized from Mr. Quilling’s car on
September 3, 1998.

  Gamboe testified that all of the
ammunition seized from the automobile and
all of the ammunition seized at the house
was .38 caliber and consisted of two
different types of bullets--lead hollow
point and full metal jacket flat nose.
Each set of ammunition (the ammunition
from the car and the ammunition from 9
Cahokia Street) contained at least one
bullet of each type. The lead hollow
point bullets that were found in both the
car and at 9 Cahokia Street were markd
with two cannelures in similar spots on
each bullet. (A cannelure is a ring
around the circumference of a bullet that
manufacturers use to aid in identifying
the bullet’s weight.) The sets of full
metal jacket bullets also shared similar
characteristics. The diameter, length and
design of the cartridge case were all the
same for the bullets found in the car and
at 9 Cahokia Street. Additionally, thee
bullets were all flat-nosed, had a step
base, were 138 grain (a weight
measurement) and had no cannelures.

B.   Earlier Proceedings

  In June of 1999, Mr. Quilling was tried
by jury on the possession of a firearm
charge. The verdict from that trial was
later vacated, and Mr. Quilling was
awarded a new trial on grounds unrelated
to this appeal. On September 9, 2000, the
Government filed a superceding
indictment, adding a charge that Mr.
Quilling knowingly possessed firearm
ammunition in violation of 18 U.S.C. sec.
922(g)(1).

  Mr. Quilling filed a motion to sever the
two counts. The court denied the motion.
The court held that joinder of the counts
was proper because the counts were of
like class and character and the
essential elements of each offense was
the same. Severance was not required
because (1) Mr. Quilling had failed to
prove that actual prejudice would occur
as a result of trying the two counts
together, and (2) there was little chance
that the jury would be confused by the
joinder of the counts because the trial
was short and the evidence was
straightforward.

  On October 26, 2000, Mr. Quilling filed
a pro se motion to suppress the statement
that he made to Investigator Delaney on
September 3, 1998, in which he said, "You
know I need that because I was shot
before." Tr.IX at 106. He also moved to
suppress "any and all evidence relating
to the pre-trial statement of the
defendant by any witness who was involved
in the improper obtaining of the
statement on September 3rd 1998." R.80.
The court denied the motion to suppress,
stating that the motion was untimely. The
court also noted that, even if the motion
had been timely, Mr. Quilling had failed
to present facts that were sufficiently
definite to enable the court to decide
that a "substantial claim was presented
and that there are disputed issues of
material fact which will affect the
outcome of the motion." R.82 (internal
quotation marks and citations omitted).

  At the end of the two-day trial, the
jury found Mr. Quilling guilty on both
counts. After the verdict, Mr. Quilling
filed a motion for judgment of acquittal,
and, in the alternative, for a new trial
on both counts. The district court denied
the motion. After the imposition of
sentence, Mr. Quilling filed this appeal.

II

DISCUSSION

A. Possession of Firearm Ammunition as
a Felon

  Mr. Quilling first claims that the
district court improperly denied his
motion for judgment of acquittal on the
charge of possession of firearm
ammunition. In his view, there was
insufficient evidence to sustain his
conviction on this count.

  We review the ruling of the district
court denying a motion for judgment of
acquittal de novo. See United States v.
Jones, 222 F.3d 349, 351 (7th Cir. 2000).
We must uphold the jury’s decision if
"any rational trier of fact could have
found the essential elements of the crime
beyond a reasonable doubt." United States
v. Albarran, 233 F.3d 972, 975 (7th Cir.
2000) (internal quotation marks and
citations omitted); see also United
States v. Richardson, 208 F.3d 626, 631
(7th Cir.) cert. denied, 121 S. Ct. 259
(2000). A jury’s verdict will be
overturned only "if the record contains
no evidence, no matter how the evidence
is weighed, from which the jury could
have found guilt beyond a reasonable
doubt." Albarran, 233 F.3d at 975.

  Although Mr. Quilling was not in actual
physical possession of the ammunition
found during his arrest, the district
court found that he was in constructive
possession of the ammunition.
Constructive possession exists when "a
person . . . knowingly has the power and
the intention at a given time to exercise
dominion and control over an object,
either directly, or through others."
United States v. Garrett, 903 F.2d 1105,
1110 (7th Cir. 1990) (quoting United
States v. Taylor, 728 F.2d 864, 868 (7th
Cir. 1990)); see also United States v.
Gill, 58 F.3d 334, 336 (7th Cir. 1995). A
defendant’s mere presence in a dwelling
where a prohibited item was found,
without more, is not sufficient to
establish constructive possession. See
United States v. Herrera, 757 F.2d 144,
150 (7th Cir. 1985) (holding that
defendant who picked up heroin at a house
was not in constructive possession of
additional heroin when defendant’s
fingerprints were not on a footlocker at
the house in which the additional heroin
was located and when the Government did
not show defendant had a key to
footlocker). Instead, the Government must
"establish a nexus between the accused
and the contraband, in order to
distinguish the accused from a mere
bystander." Richardson, 208 F.3d at 632
(citing United States v. Windom, 19 F.3d
1190, 1199 (7th Cir. 1994)).

  However, we have found constructive
possession to exist when a defendant had
a substantial connection to the residence
where the firearm and the contraband was
found. See Richardson, 208 F.3d at 632
(finding constructive possession when a
defendant admitted being the caretaker
and the landlord of the residence,
medicine bottles with defendant’s name
were found at residence and defendant re
ceived mail at the residence); United
States v. Kitchen, 57 F.3d 516, 520-21
(7th Cir. 1995) (finding
constructivepossession when the
Government presented evidence that
defendant admitted living at the
residence, could be reached by telephone
there and paid for $10,000 of repairs to
the residence). Indeed, in Kitchen, we
noted approvingly an Eighth Circuit
decision that stated that constructive
possession can be established by showing
that the contraband was seized at the
defendant’s residence. See Kitchen, 57
F.3d at 521 (quoting United States v.
Boykin, 986 F.2d 270, 274 (8th Cir.
1993)).

  We agree with the district court that
the Government established a sufficient
nexus between Mr. Quilling and the
ammunition. Most importantly, Mr.
Quilling stated at the time of his arrest
that 9 Cahokia Street was hs
residence./3 When Marshal Newlin
inquired as to who lived in the house,
Mr. Quilling and Dixon both replied, "We
do." Tr.IX at 153. In addition, officers
stated that the one-bedroom residence was
a "known address" for Mr. Quilling. Id.
at 144. Further, Mr. Quilling’s car was
parked in the driveway when officers went
to arrest him. These factors were
sufficient to permit the jury to find
beyond a reasonable doubt that Mr.
Quilling was in possession of the firearm
ammunition.

B. Possession of a Firearm as a Felon--
Cumulative Error

  Mr. Quilling next claims that his
conviction for possession of a firearm is
infected by cumulative error committed by
the district court in the course of the
proceedings. Specifically, he states that
the district court committed error in
denying the motion for the judgment of
acquittal on the possession of firearm
ammunition count. He argues that this
error, combined with the court’s earlier
denial of his motion to sever the claims
in the case and the Government’s failure
to deliver, in a timely fashion, the
grand jury testimony of ATF Agent Morgan
Fisher, had the cumulative effect of
influencing the jury to reach a verdict
of guilty on the possession of a firearm
count. See United States v. Rogers, 89
F.3d 1326, 1338 (7th Cir. 1996)
(describing that the cumulative effect of
trial errors "may deprive a defendant of
his constitutional right to a fair
trial").

  To set the stage for the remainder of
his contentions, Mr. Quilling submits
that the evidence supporting his
conviction for possession of a firearm is
meager and that his conviction on that
count is properly characterized as a
"close case." Appellant’s Br. at 12. We
note, however, that the evidence showed
that (1) the firearm was found in Mr.
Quilling’s car, which he had been driving
before pulling over to the side of the
road; (2) after Mr. Quilling exited the
car, he began walking away from the
officers, making it appear as if he was
attempting to distance himself from the
vehicle; and (3) Mr. Quilling admitted
later that day that the gun was his. This
evidence certainly is sufficient to
support the conviction. See Gill, 58 F.3d
at 336-37; Garrett, 903 F.2d at 1110-11.
There was evidence to the contrary, the
testimony of a confederate, Frank
Jefferson. But Jefferson had altered his
testimony at trial from his earlier
statements, and the jury certainly acted
well within its authority in rejecting
his version of who owned the firearm.
  Mr. Quilling next points out that his
counsel did not receive the transcript of
the grand jury testimony of Agent Morgan
Fisher before Mr. Quilling’s pro se
motion to suppress evidence had been
denied by the district court. He claims
that this testimony, together with the
testimony of Frank Jefferson, would have
led to the suppression of the firearm
and, consequently, to the dismissal of
the count. We think that the Government
is correct in pointing out that the
arrival date of the testimony was not
outcome-determinative on the suppression
of the firearm because the motion was
denied on the ground that it was not
filed in a timely manner. Moreover, the
motion did not seek the suppression of
the gun.

  Mr. Quilling also claims that the counts
against him should have been severed and
that, because they were not, he was
prejudiced because "the Jury very
probably inferred, that Quilling
possessed the gun because he possessed
the bullets and vice versa." Appellant’s
Br. at 12.

  To determine whether the denial of
severance is improper, we first determine
whether joinder was permissible. Whether
joinder is permissible is a question of
law that is subject to de novo review.
See United States v. Turner, 93 F.3d 276,
283 (7th Cir. 1996); United States v.
Archer, 843 F.2d 1019, 1021 (7th Cir.
1988). Rule 8 of the Federal Rules of
Criminal Procedure provides:

Two or more offenses may be charged in
the same indictment or information in a
separate count for each offense if the
offenses charged, . . . are of the same
or similar character or are based on the
same act or transaction or on two or more
acts or transactions connected together
or constituting parts of a common scheme
or plan.

Fed. R. Crim. P. 8(a).

  In this case, the district court found
that the two offenses charged are of a
like class and character. In fact, both
counts charged are violations of 18
U.S.C. sec. 922(g)(1). The essential
elements of the crime are therefore
virtually the same for each offense. See
United States v. Walls, 80 F.3d 238, 243
(7th Cir. 1996) (holding that it was
proper for two sec. 922(g)(1) counts to
be joined even though four years
separated the offenses). Although it is
not required that the two counts be
related evidentially or temporally, the
district court did find these factors to
be satisfied in this case. The district
court noted that there would be some
evidentiary overlap between the counts in
Mr. Quilling’s case. The court further
concluded that the eight months
separating the offenses was a short
enough period of time to characterize the
offenses as temporally related./4

  It is important to note several other
factors that are supportive of the
district court’s decision. Mr. Quilling
cannot claim prejudice due to proof that
he was a convicted felon because that
factor was an element of each count.
Additionally, sufficient evidence existed
as to each of the counts. In all
likelihood, Mr. Quilling would have been
found guilty on each count had separate
trials occurred. Therefore, the district
court accomplished the goal of judicial
efficiency without causing the defendant
prejudice. Joinder of the two counts was
entirely proper.

  Once joinder is deemed proper, we shall
reverse a district court’s denial of a
severance motion only upon a showing of a
clear abuse of discretion. See Turner, 93
F.3d at 284; United States v. Pulido, 69
F.3d 192, 207 (7th Cir. 1995). Rule 14 of
the Federal Rules of Criminal Procedure
provides:

If it appears that a defendant or the
government is prejudiced by a joinder of
offenses or of defendants in an
indictment or information or by such
joinder for trial together, the court may
order an election or separate trials of
counts, grant a severance of defendants
or provide whatever other relief justice
requires. In ruling on a motion by a
defendant for severance the court may
order the attorney for the government to
deliver to the court for inspection in
camera any statements or confessions made
by the defendants which the government
intends to introduce in evidence at the
trial.

Fed. R. Crim. P. 14. The defendant must
be able to show that the denial of
severance "caused him actual prejudice in
that it prevented him from receiving a
fair trial; it is not enough that
separate trials may have provided him a
better opportunity for an acquittal."
United States v. Alexander, 135 F.3d 470,
477 (7th Cir. 1998) (citations omitted).

  Mr. Quilling argues that he was unduly
prejudiced because the Government argued,
and the jury possibly inferred, that Mr.
Quilling possessed the gun because
hepossessed the bullets and vice versa.
However, "’prejudice requiring severance
is not shown if evidence on the severed
counts would be admissible in the trial
of the remaining counts.’" United States
v. Windom, 19 F.3d 1190, 1198 (7th Cir.
1994) (quoting United States v. Rogers,
475 F.2d 821, 828 (7th Cir. 1973)). In
this case, some of the evidence from each
count likely would have been admissible
in the other trial under Federal Rule of
Evidence 404(b). Because the evidence
likely would be admissible, Mr. Quilling
has failed to show that the denial of
severance caused actual prejudice.

  Moreover, we have held that proper jury
instructions are an "adequate safeguard
against the risk of prejudice in the form
of jury confusion, evidentiary spillover
and cumulation of evidence." Alexander,
135 F.3d at 478 (internal quotation marks
and citations omitted); see also United
States v. Stillo, 57 F.3d 553, 557 (7th
Cir. 1995). The jury in this case was
instructed properly to consider each
offense separately. Lastly, Mr.
Quilling’s trial lasted only two days and
the evidence was not complicated. These
considerations further support our
conclusion that the denial of severance
was proper in this case. Alexander, 135
F.3d at 478; United States v. Coleman, 22
F.3d 126, 135 (7th Cir. 1994).
Accordingly, the district court did not
err in denying Mr. Quilling’s motion for
severance.


Conclusion

  The district court correctly handled the
matters that Mr. Quilling has contended
constitute prejudicial error.
Accordingly, we affirm the judgment of
the district court.

AFFIRMED
FOOTNOTES

/1 Deputy United States marshals will be referred to
as "marshals" throughout this opinion.

/2 Marshal James Taylor testified that the officers
waited ten to fifteen minutes. See Tr.IX at 117.
Marshal Newlin testified that the time period was
five to ten minutes. See id. at 148.

/3 Mr. Quilling also gave 9 Cahokia Street as hs
residence when asked for his address during a
court hearing. See Tr.VIII at 2-3.

/4 Cf. United States v. Muniz, 1 F.3d 1018, 1022
(10th Cir. 1993). In Muniz, the Tenth Circuit
held that the trial court properly joined two
counts that were in violation of sec. 922(g)(1).
The defendant was charged with two separate
offenses of being a felon in possession of a
firearm. The offenses occurred four months apart.
The court noted that joinder based on "same or
similar character" was more likely to cause
prejudice to the defendant. Id. at 1023 (cita-
tions omitted). The court reasoned that "preju-
dice to the defendant is more likely since proof
of one crime may tend to corroborate the commis-
sion of the other crime in violation of the
evidentiary rules against evidence of a general
criminal disposition or propensity to commit
crime." Id. However, even though the court was
cognizant of this hazard, it still held that the
joinder of the counts was proper because the
evidence was not confusing and the case for each
count was strong on its own. See id. at 1022-23.
