In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1897

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM R. GEVEDON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana,

Indianapolis Division.

No. IP 96-0139-CR-T/F--John D. Tinder, Judge.

Argued January 21, 2000--Decided May 25, 2000

 Before Bauer, Ripple and Kanne, Circuit

Judges.

 Bauer, Circuit Judge. William R. Gevedon

("William") was found guilty by a jury in

the Southern District of Indiana of seven

counts of federal firearms violations. He

was sentenced to 115 months imprisonment,

followed by a three year term of

supervised release, and ordered to pay a

$7,000.00 fine and a $350.00 special

assessment. He appeals, claiming that his

estranged wife who no longer lived in the

marital home did not have the actual or

apparent authority to consent to a search

of the home and thus the District Court

erred in denying his motions to suppress

the weapons taken from his house. He also

appeals the District Court’s finding that

he was a "prohibited person" under the

sentencing guidelines and the resulting

two level increase in his base offense

level. We affirm the District Court.

I. BACKGROUND

 Jackie Kirkwood Gevedon ("Jackie") and

William Gevedon married in 1982. Shortly

afterward they bought a home at 2385 East

U.S. 40,/1 Greenfield, Indiana. Both

Jackie’s and William’s names were on the

deed. William ran a motor vehicle repair
business from the detached two-car garage

behind the house. It was in the attic of

this garage/shop that the weapons that

are the subject of this case were found.

Jackie assisted the business by doing

some of the book work, errands, calling

customers, and getting parts. Most of

Jackie’s work was done from the house,

but she did occasionally go to the

garage/shop to conduct business or take

food and snacks out to William and the

others. Although William would later

dispute this, Jackie had full access to

the garage/shop. 

 Trouble developed in the marriage and in

June, 1995 Jackie moved out, leaving most

of her belongings behind. One month later

she filed for divorce. Her return to the

marital home in July to collect some of

her clothing was without incident, but

the animosity between Jackie and William

grew and by October, when Jackie went

back to the house again, she found that

the locks had been changed, forcing her

to break into the house and the

garage/shop.

 The record provides little information

about what happened during the next three

months, other than the closing of

William’s auto repair business in late

1995. William Gevedon also disappeared,

fleeing the state law charges that were

pending against him. His whereabouts were

unknown.

 Sheriff’s deputies, armed with a search

warrant, forced their way into the home

and garage on January 6, 1996 and

searched them. The house was vacant. The

deputies called Jackie, ostensibly to

check on her safety. William claims that

this was just a ploy to gain her

cooperation for the searches yet to come.

 A few weeks after the warrant search,

Jackie, accompanied by members of the

Sheriff’s Department, returned to the

house to secure it. She had new locks put

on both the house and the garage, had a

door to the house replaced and a door to

the garage/shop boarded up. While there,

the police conducted what would be the

first of three searches consented to by

Jackie. The police told Jackie the

searches were necessary because "sources"

informed them that William was in

possession of illegal firearms. Weapons

were found in the house, but not removed.
 On January 25, 1996, Jackie obtained a

temporary restraining order from the

Hancock Superior Court in her divorce

proceedings, restraining William from

coming on or about "the parties real

estate at 2385 East Main Street in

Greenfield, Indiana 46140." The order

also granted Jackie "sole possession of

said real estate until further Order of

[the] Court." That order was renewed on

February 8, 1996 and William was again

restrained from coming onto the couples’

real estate at 2385 East Main Street and

Jackie was again granted sole possession

of the property. 

 The third search, conducted on February

6, 1996, resulted in the discovery of the

weapons in the attic of the garage/ shop.

It is this search that William contests

since the weapons found in the attic

constitute the bulk of the charges

against him. Prior to the search, the

deputies called Jackie, informed her of

the need to search the premises again and

arranged for her to meet them at the

house. Once there, Jackie said she

thought there were guns somewhere in the

garage/shop and she wanted it searched

until they were found. She also asked

that they be removed. Jackie volunteered

that William had once told her that if he

had any problems or had to hide weapons,

one place he would put them was the

attic. Jackie then signed a "Form to

Consent to Search," remained on the

premises during the search and watched as

the guns were removed from the garage

attic.

 Based on the weapons seized from his

home and garage, William was charged with

seven counts of federal firearms

violations. Counts 1 through 3 were for

knowingly receiving and possessing

unregistered silencers that had no serial

number, in violation of 26 U.S.C.

sec.sec. 5861(d) and 5871. Counts 4

though 6 were for knowingly receiving and

possessing two machine guns and one

submachine gun, two of which had no

serial numbers, in violation of 18 U.S.C.

sec.sec. 922(o) and 924(a)(2). Count 7

was for knowingly receiving and

possessing an unregistered grenade

launcher that had no serial number, in

violation of 26 U.S.C. sec.sec. 5861(d)

and 5871.
 William Gevedon, sometimes pro se,

sometimes through counsel, filed a

multitude of pre-trial motions, including

six motions to suppress. Three of the

suppression motions denied by the

District Court were related to the

searches of the residence and garage.

These motions are the focus of William’s

appeal.

 After a four day trial, William was

convicted on all seven counts. The

Presentence Report ("PSR") recommended

that William’s base offense level be 20

(instead of 18) because William possessed

the silencers and machine gun while he

was a fugitive and subject to a charge

punishable by imprisonment for more than

one year. After hearing argument, the

District Court found that William was a

"prohibited person" under U.S.S.G.

sec.2K2.1(a)(4), both because he had been

a fugitive in constructive possession of

the prohibited weapons, and because he

possessed the weapons while under a

charge punishable by imprisonment of more

than one year. The court also departed

upward two levels on the basis that

William’s criminal history was

understated by his criminal history

score, and added enhancements for

obstruction of justice because William

was a fugitive, because his offense

involved 5 - 7 weapons, because at least

one of the weapons was a destructive

device, and because at least one of the

machine guns had an obliterated serial

number. The total offense level was 28.

William was sentenced to 115 months

imprisonment, 3 years supervised release,

a fine of $7,000 and a special assessment

of $350. 

II. DISCUSSION 

 A. Motions To Suppress

 The District Court denied all of

William’s motions to suppress the

weapons, finding that Jackie Gevedon had

both actual and apparent authority to

consent to the searches and that her

consent was voluntary. The first two of

those motions were denied on the briefs.

A suppression hearing was, however, held

before the court ruled on the third

motion. We review the District Court’s

findings of fact for clear error, while

reviewing conclusions of law and mixed

questions of law and fact de novo. United
States v. Duguay, 93 F.3d 346, 349-50

(7th Cir. 1996) (citation omitted). The

question of whether Jackie had actual or

apparent authority to consent to the

searches is a mixed question of law and

fact and is therefore reviewed de novo.

United States v. Ladell, 127 F.3d 622,

624 (7th Cir. 1997) (citation omitted).

 William Gevedon argues on appeal that

his estranged wife had neither the actual

nor the apparent authority to consent to

the weapons searches. The District Court

found that she had both. Because we find

that Jackie Gevedon had actual authority

to consent to the search of the home and

garage/shop, we do not address the

question of whether she also had apparent

authority./2 

 The Fourth Amendment guarantees citizens

the right to be free from unreasonable

search and seizure. See Katz v. United

States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967). William complains

that his rights were violated by the

warrantless search of his property and

the seizure of his weapons. Law

enforcement officers may, however,

legally search without a warrant if they

obtain voluntary consent from the person

whose property is to be

searched,Schneckloth v. Bustamonte, 412

U.S. 218, 222, 93 S.Ct. 2041, 2045, 36

L.Ed.2d 854 (1973), or from someone with

actual or apparent authority over the

premises. United States v. Aghedo, 159

F.3d 308, 310 (7th Cir. 1998); United

States v. Saadeh, 61 F.3d 510, 517 (7th

Cir. 1995). 

 In a case strikingly similar to this

one, we examined the issue of whether a

wife has the authority to consent to a

search of the martial property, including

portions that she does not regularly

enter or occupy, and concluded that she

does. United States v. Duran, 957 F.2d

499, 505 (7th Cir. 1992) ("a spouse

presumptively has authority to consent to

a search of all areas of the homestead").

However, we tempered that rule with a

caveat that "the nonconsenting spouse may

rebut this presumption only by showing

that the consenting spouse was denied

access to the particular area searched."

Id. William Gevedon seizes upon this nar

row exception, as he must if he is to

prevail, and tries to squeeze his cause

into it by claiming that he denied Jackie
access to the garage attic where the

weapons were found. His attempt is in

vain.

 The opening to the garage attic was

covered by a square access panel made of

sheet metal. It was held in place by four

sheet metal screws, one in each corner.

William claims that because a special

socket was required to unscrew the

screws, and that Jackie was unaware of

where he kept it, she was denied access

to the attic. William supplements this by

noting that Jackie never went into the

attic and thus contends she never

occupied it or had the common authority

over it to consent to its search.

William’s arguments are unpersuasive and

ignore other evidence gleaned during the

suppression hearing, namely that William

never told Jackie that she could not go

into the attic, that Jackie did go into

the attic once to look around, and that

the "special screws" could have been

removed with other devices such as pliers

or a wrench if one did not mind stripping

the screw heads.

 The clear and simple fact is that Jackie

was still William’s legal wife at the

time she consented to the searches.

Presumptively, then, she had the actual

authority necessary for a valid consent.

Duran, 957 F.2d at 505. William has not

rebutted this presumption. We thus find

that Jackie had actual authority to

consent to the search of the house and

garage/shop and that the search and

seizure by the authorities pursuant to

that consent was valid.

 The District Court was also persuaded,

as are we, by the fact that Jackie had a

court order giving her sole possession of

the Gevedons’ real estate at 2385 East

Main Street. William, however, points out

that in 1993 the garage was given a

separate address. Because of the

inconsistency between the address

numbering system of the City of

Greenfield and the County of Hancock, and

for reasons related to 911 emergency

services, the Hancock County Planning

Commission assigned the Gevedon property

two addresses. The house was designated

2385 East Main Street, and the

garage/shop was designated 2387 East Main

Street. William argues that the court

order gave Jackie, as its literal

language suggests, control over only the
house, not the garage/shop. 

 To read the order as William suggests is

to pervert its meaning and its intention.

Indeed, the District Court characterized

the argument as "much ado about nothing."

Absolutely nothing changed when the

garage was given a separate address. The

property was not partitioned, sold, or

assigned. Both the house and the garage

continued to be accessed by one, common

driveway. And Jackie’s name was still on

the deed for the entire property. We thus

agree with the District Court that the

divorce court’s order was meant to give

Jackie sole possession of and control

over the entire homestead, an indication

of actual authority. 

 We conclude that the District Court did

not err in finding that Jackie had the

requisite authority to consent to the

search. Jackie was still, at the time of

the search, William’s wife. The fact that

Jackie was estranged from William gives

us no pause since she had a court order

giving her exclusive control over the

property. The District Court

properlyrecognized these facts and

applied the case law to reach the correct

result. We thus affirm its denials of

William’s motions to suppress the

weapons.

 B. Finding That William Was A

"Prohibited Person"

 At William’s sentencing, the District

Court found a base offense level of 20,

pursuant to U.S.S.G.

sec.2K2.1(a)(4)(B)(i) because William was

a "prohibited person" in possession of

illegal firearms. Application Note 6 to

that guideline defines a "prohibited

person" as anyone who is under indictment

for a crime punishable by imprisonment

for more than one year, or is a fugitive

from justice. The District Court found

that William qualified as a "prohibited

person" under both these criteria. We

review the District Court’s

interpretation of the scope of the

guidelines de novo. United States v.

Yoon, 128 F.3d 515, 528 (7th Cir. 1997)

(citation omitted). The court’s factual

findings are reviewed for clear error.

Id.

 William argues that he is not a

"prohibited person" within the meaning of
the guidelines because (1) he did not

possess the weapons while he was a

fugitive, and (2) because he was not

under an "indictment" for a federal crime

punishable by imprisonment for more than

one year. We reject each of these

arguments and discuss them in turn.

 First, although William does not concede

he was a fugitive, there can be no doubt

that he was. He disappeared from the

marital home in late 1995 or early 1996,

while out of prison awaiting trial on

state charges of criminal confinement,

battery, criminal recklessness and auto

theft. His whereabouts were unknown to

Jackie, the law enforcement officers, and

others. He did contact his daughter

during this time, but often to ask about

the status of the law enforcement

interest in him or their efforts to find

him. Once he even asked her to live at

the house for him, evidencing his intent

not to return for the near future. There

is no doubt, then, that William was a

fugitive. And the District Court so

found.

 The question, then, is whether he

possessed the weapons while he was a

fugitive. William argues that he did not

because he was a fugitive, away from

home, while the weapons remained at all

times in the attic of his garage. It is

true that William was not in actual

possession of the weapons, but that does

not end our inquiry because possession

may be either actual or constructive.

"[P]ossession . . . can be established

despite the fact that the firearm was not

in the immediate possession or control of

the defendant." United States v. Kitchen,

57 F.3d 516, 520 (7th Cir. 1995).

"Constructive possession exists when a

person does not have actual possession

but instead 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), cert. denied, 498

U.S. 905, 111 S.Ct. 272, 112 L.Ed. 2d 227

(1990). 

 In Kitchen, we found that the defendant

constructively possessed handguns,

despite the fact that he was incarcerated

at the time the agents seized the

handguns from his house. 57 F.3d at 520-

21. Applying our rule that
"[c]onstructive possession can be

established by showing that the firearm

was seized at the defendant’s residence,"

Id. at 521 (citation omitted), to this

case, we find that William constructively

possessed the weapons even though he was

no longer living at the residence at the

time they were taken from the garage

attic. The District Court heard ample

testimony that, through a friend, William

was exercising control over the weapons

during his absence. Indeed, while William

was a fugitive, he called Richard Couch,

a friend, and asked him to go to the

property to secure it and prevent others’

access by backing up a wrecker against

the front door and a case loader against

the back door. Coupling this evidence

with William’s earlier arguments that he

was in control of the property and doing

everything within his power to deny

Jackie access to it, the District Court

held that William was in constructive

possession of the weapons while a

fugitive, making him a "prohibited

person" within the sentencing guidelines.

We agree with the District Court’s

finding and affirm its ruling.

 William’s final argument is that the

District Court erred in finding him a

"prohibited person" on the alternate

ground that he was in possession of

illegal firearms while he was "under

indictment" for a "crime punishable

byimprisonment for more than one year"

because he was not "under indictment."

The state charges against him were filed

by information. He asks us to believe

that one who is charged by information

instead of indictment is not a

"prohibited person" because Application

Note 6 specifically states "indictment"

and omits "information." Again, we

believe that his interpretation is a

perversion of the meaning and intention

of the sentencing guidelines. We are not

alone in our belief. The Second, Eighth

and Tenth Circuits have all held that the

term "under indictment" includes a person

charged by information. See United States

v. Shepardson, 196 F.3d 306, 309-310 (2nd

Cir. 1999); Schook v. United States, 337

F.2d 563, 567-68 (8th Cir. 1964); United

States v. Fillman, 162 F.3d 1055, 1057

(10th Cir. 1998). 

 This is a matter of statutory

construction and common sense. William

was convicted under 18 U.S.C. sec.922,
among others. That statute defines

"indictment" to include "indictment or

information." 18 U.S.C. sec.921(a)(14).

Sentencing under the statute should be

consistent with the statute and thus that

definition must logically extend to

U.S.S.G. sec.2K2.1 since it is the

guideline for sentencing violations of

sec.922. Furthermore, as the District

Court remarked, to hold otherwise would

arbitrarily exclude charges by those

states, such as Indiana, that permit

charging by information. We do not

believe this would further Congress’

intent to prohibit the possession of

firearms by those facing other criminal

charges. Thus, we hold that the term

"prohibited person" as used in U.S.S.G.

sec.2K2.1 covers those persons charged by

information, including William Gevedon.

III. CONCLUSION

 For the foregoing reasons, the

conviction and sentence of the defendant

are affirmed.

AFFIRMED.

/1 Sometime thereafter East U.S. 40 became known as

East Main Street.

/2 Likewise, we do not address any arguments made by

William that Jackie’s consent was somehow involuntary because the sheriff’s deputies were kind

to or solicitous of her because they wanted to

"avoid the warrant requirement." We believe that

argument to be wholly without merit. We find

nothing unusual or illegal about the officers’

preference to conducting a search by consent over

a search by warrant in this case.