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United States v. Schmitt

United States Court of Appeals, Seventh Circuit

October 20, 2014

KENNETH SCHMITT, Defendant-Appellant

Argued February 18, 2014.

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Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:11-cr-48 -- Richard L. Young, Chief Judge.

For United States of America, Plaintiff - Appellee: Matthew P. Brookman, Attorney, Levi Burkett, Attorney, Office of The United States Attorney, Evansville, IN; William L. McCoskey, Attorney, Office of The United States Attorney, Indianapolis, IN.

For Kenneth Schmitt, Defendant - Appellant: Chad Eric Groves, Attorney, Groves & Day, Henderson, KY.

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.


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Williams, Circuit Judge.

Law enforcement officers found drugs and an assault rifle in Kenneth Schmitt's home while executing a warrant for his arrest. Because they were found in plain view in the course of conducting a reasonable protective sweep, the district court did not err in denying Schmitt's motion to suppress evidence of the firearm. Nor did the district court err in allowing much of the drug evidence that was admitted against Schmitt at trial, including his conviction record for possessing marijuana with the intent to distribute it. However, the district court should not have admitted Schmitt's conviction for possession of methamphetamine since Schmitt did not open the door to that evidence and it was not relevant at trial except to impeach the government's own witness who claimed during direct examination that the methamphetamine belonged to him. But the error was harmless because the government's case would not have been substantially less persuasive without it. Finally, the district court did not err in enhancing Schmitt's base offense level after concluding that he possessed the firearm in

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connection with the sale of drugs or in finding that Schmitt's eleventh-hour decision to admit guilt--after he was convicted--was insufficient to qualify him for a reduction in his offense level for accepting responsibility. Therefore, we affirm Schmitt's conviction and sentence.


In December 2010, Evansville Police Department Detective Chris Georgen received a tip from his informant, Kenneth Hutchinson, that Kenneth Schmitt had recently acquired an AR-15 semi-automatic assault rifle in exchange for $200 and two grams of methamphetamine. How did Hutchinson know this? Because he was the middleman who set up the deal between Schmitt and the seller of the automatic rifle. And Hutchinson, who was Schmitt's neighbor, told Det. Georgen that Schmitt was keeping it at home. Det. Georgen and other officers followed up on the tip by watching Schmitt's residence. They saw Schmitt come to the front door and several other people enter and exit the home. Armed with a warrant to arrest Schmitt, several SWAT officers entered Schmitt's residence the next day and within five minutes the officers found Schmitt and Jason Wyatt. They also found, in plain view, marijuana, methamphetamine, and pills containing controlled substances. Less than five minutes after entering the house, SWAT Officer Craig Pierce went into the basement and saw an AR-15 semiautomatic rifle and two fully loaded magazines in a black gun case. Det. Georgen then obtained a search warrant to seize the drugs, firearm, and related evidence found while executing the arrest warrant.

Schmitt was indicted for possessing a firearm while being a felon, in violation of 18 U.S.C. § 922(g)(1). He filed a pretrial motion to suppress evidence related to the rifle, but the district judge found that it was seen in plain view during a protective sweep and denied the motion. Schmitt, who had pled guilty in state court to possession of the drugs found in his home, also moved to exclude evidence regarding " any drug use, drug possession, or drug dealing alleged to have been engaged in by" him. The government argued that the drugs that were found in Schmitt's home, as well as the evidence that he was a drug dealer and used drugs to purchase the firearm, were relevant to show why Schmitt had the rifle. Finding that the drug evidence was " inextricably intertwined with the charged act," " put the facts in context, filled gaps," and " would be a motive for the defendant to have a firearm," the court concluded that the probative value of the drug evidence outweighed its prejudicial effect. The court denied Schmitt's motion and allowed drug evidence to be admitted at trial, in addition to evidence that Schmitt pled guilty to possessing the drugs found in his home the day he was arrested.

So, at trial, Hutchinson testified that he had on occasion bought methamphetamine and marijuana from Schmitt in Schmitt's home and also saw him sell pills from his home. Det. Georgen testified about the firearm and ammunition found in the basement, as well as the methamphetamine, marijuana, and digital scale that were found in Schmitt's home during his arrest. He told the jury that the quarter gram of methamphetamine found was an amount a user would have, but that the quarter pound of marijuana was an amount a drug dealer would keep on hand.

Collectively, Det. Georgen and Hutchinson's testimony raised the inference that the drugs in Schmitt's home were his and that he bought the rifle to protect his drug dealing business. But Schmitt's friend Wyatt, who was the government's witness, offered a different view. He testified that

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the drugs found in Schmitt's residence belonged to him. This first came up during direct examination in the government's case, when Wyatt said that he was present during the arrest because he " had some meth [and] was getting [Schmitt] high." During cross-examination, defense counsel got Wyatt to admit that the methamphetamine, marijuana, pills, and digital scale found in Schmitt's home all belonged to Wyatt.

The following day, after the government rested, the defense called Det. Georgen back to the stand. The government sought to elicit testimony from Det. Georgen during cross-examination that Schmitt pled guilty to possessing the drugs that were found on the scene--the same drugs Wyatt testified belonged to Wyatt. The government also moved to admit Schmitt's record of conviction, arguing that the testimony and conviction record were admissible because the defense " elicit[ed] the testimony that [the drugs] were Wyatt's drugs" and opened the door to admitting evidence of the drug conviction. Defense counsel objected, asserting that admission would unfairly prejudice Schmitt in violation of Rule 403, and because defense counsel doubted the validity of the document. After defense counsel confirmed that he planned to talk about Wyatt's admission to owning the drugs during his closing argument, the judge allowed the government to introduce Schmitt's state conviction record through Officer Georgen's testimony.

The jury convicted Schmitt, and the judge at sentencing applied a four-level enhancement to Schmitt's base offense level after finding that he possessed a firearm in connection with another felony offense. The judge also rejected Schmitt's request for a two-point sentencing level reduction for accepting responsibility. Schmitt was sentenced to 110 months' imprisonment and three years of supervised release. He appeals both his conviction and sentence.


A. No Error in Admitting Firearm Evidence

Schmitt first argues that the district court erred in denying his motion to suppress the semiautomatic gun, related exhibits including the gun case and ammunition, and testimony regarding the gun because it was all fruit of an illegal search. For this claim, " we review the district court's legal conclusions de novo, and its factual findings for clear error." United States v. Huart, 735 F.3d 972, 974 (7th Cir. 2013).

Schmitt's position is that the officers had to stop their search once they apprehended Schmitt because they only possessed an arrest warrant. But the district court found that Officer Pierce's search of the basement, which Schmitt argues occurred after the officers apprehended him and Wyatt, was permissible as a protective sweep. Schmitt now asserts that the protective sweep doctrine did not give Officer Pierce the authority to open the locked basement door and search the basement, where the firearm was found in its case in plain view, because the door ...

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