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 seventyeight 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 parttime 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 (citations omitted). The court reasoned that "prejudice to the defendant is more likely since proof

of one crime may tend to corroborate the commission 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.