In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3701

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTWAN KENYA REED,

Defendant-Appellant.

Appeal from the United States District Court for the 

Eastern District of Wisconsin

No. 2:10-CR-00080-RTR-1 — Rudolph T. Randa, Judge.

ARGUED MAY 31, 2013 — DECIDED MARCH 10, 2014

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Following a bench trial, Antwan

Kenya Reed was convicted of possession with intent to

distribute heroin, possession of a firearm by a felon, and

possession of a firearm in furtherance of a drug trafficking

crime. On appeal, he contends that there was no probable

cause to issue the warrant that led to the discovery of certain

evidence used against him at trial. He also maintains that the
2 No. 12-3701

district court abused its discretion in allowing the government

to present the details of a ten-year-old conviction for heroin

distribution, evidence he claims was used improperly to

demonstrate his propensity for committing heroin-related

crimes. Finally, he asserts that the evidence was insufficient to

demonstrate that he possessed the guns or drugs seized from

the home that was searched, or that he used the guns in

furtherance of a drug trafficking crime. We affirm.

I.

We begin with the warrant. On March 11, 2010, Milwaukee

police officer Michael Wawrzyniakowski submitted an

affidavit in support of an application for a search warrant for

3353 N. 27th Street in Milwaukee. In the application, the officer

sought permission to search for heroin, guns, items affiliated

with heroin or guns, and any other evidence that could be used

to demonstrate control over the premises. In the affidavit

supporting the application, the officer averred that a reliable

confidential informant had informed him that Reed was using

the N. 27th Street residence to store and sell heroin while

armed with a large caliber handgun. The informant had seen

Reed armed and delivering heroin at the home within the prior

seventy-two hours. The officer stated that the informant knew

from past experience that heroin is a white powdery substance

packaged in foil packs or “bindles” for sale, and that the

informant demonstrated to the officer his knowledge of the

appearance and packaging of heroin. The informant told the

officer that Reed armed himself to protect against other drug

dealers who reside in the same area. 
No. 12-3701 3

The officer averred that he believed the informant to be

credible because the informant provided detailed information

in the past that led to the execution of a search warrant and the

arrest of three individuals for possession of marijuana and

cocaine base with intent to deliver. The informant also supplied a physical description of Reed and positively identified

Reed through Milwaukee Police Department booking photographs. The informant previously had given the officer

locations of drug houses resulting in recoveries of drugs and

firearms by the officer and others, and had supplied the officer

with accurate information regarding persons wanted on

warrants and persons under probation or supervision. The

officer confirmed that he corroborated the informant’s information about Reed by verifying that Reed had a prior felony

conviction for possession with intent to deliver heroin and that

Reed was currently on probation for that very offense. 

Reed contends that the affidavit was too vague and lacking

in detail to support a finding of probable cause, and that the

officer did virtually nothing to corroborate the informant’s

information other than confirming innocent details such as

Reed’s physical appearance and the location of the residence.

He also contends that the officer omitted relevant information

that contradicted the informant’s account. For example, the

officers had surveilled the home on N. 27th Street, had seen

Reed only briefly and had not seen him engaged in any

suspicious activity. The district court determined that the 1

Reed also suggests that the officer who filed the affidavit knew but did

1

not reveal that Reed was barred from visiting the N. 27th Street residence

(continued...)
4 No. 12-3701

warrant was supported by probable cause and that, even in the

absence of probable cause, the evidence would not be excluded

because the officer acted in good-faith reliance on the warrant.

We need not consider whether the warrant was supported

by probable cause because the good-faith exception to the

exclusionary rule applies on these facts. United States v. Leon,

468 U.S. 897, 923 (1984); United States v. Miller, 673 F.3d 688,

693–94 (7th Cir. 2012). We review de novo a district court's

finding that the good-faith exception of Leon applies to a

particular warrant. Miller, 673 F.3d at 693; United States v. Bell,

585 F.3d 1045, 1052 (7th Cir. 2009). An officer's decision to

obtain a warrant is prima facie evidence that the officer was

acting in good faith. Leon, 468 U.S. at 921; Miller, 673 F.3d at

693. A defendant may rebut this evidence by demonstrating

that (1) the issuing judge abandoned the detached and neutral

judicial role; (2) the officer was dishonest or reckless in

preparing the affidavit; or (3) the warrant was so lacking in

probable cause that the officer could not reasonably rely on the

judge's issuance of it. Miller, 673 F.3d at 688; Bell, 585 F.3d at

1052; United States v. Garcia, 528 F.3d 481, 487 (7th Cir. 2008). 

Although the warrant application in this instance lacked

certain details, the situation here is more comparable to Garcia

 (...continued) 1

because of a “no-contact” order that had been entered against him in a

domestic dispute with a former girlfriend living at the home. Reed cites the

testimony of the officer’s partner that he (the partner) was aware of the nocontact order. Nothing in the record supports a suggestion that the officer

who filed the affidavit knew and purposefully withheld this information

from the court commissioner issuing the warrant.
No. 12-3701 5

than it is to Owens v. United States, 387 F.3d 607 (7th Cir. 2004),

the case on which Reed largely relies. In Owens, the informant’s

information was three months old, compared to the seventytwo hour time frame here. And the affiant in Owens provided

no information regarding the informant’s reliability. The

warrant application was a “bare bones” effort with minimal

detail. Because of those majorflaws, we found that the warrant

was so deficient that no officer would reasonably rely on it,

and the Leon exception did not apply. In Garcia, as in Reed’s

case, the information was only three days rather than three

months old. The affidavit in Garcia and in Reed’s case specified

that the informant had provided reliable information to the

police in the past, that the informant was familiar with the

controlled substance at issue and had personally seen drugs at

the location to be searched. In Reed’s case, that information led

to arrests and charges in one case, and the officer averred that

other information the informant had provided in the past had

later been corroborated. Officer Wawrzyniakowski’s affidavit

could fairly be described as thin, but as in Garcia, we think

there was enough here for an officer to reasonably rely on the

court commissioner’s issuance of the warrant. See also Miller,

673 F.3d at 693–94 (applying the Leon exception to a warrant

even though the application was written with generic details

because the information was recent, based on first-hand

observation, and likely against the informant’s penal interest).

Reed presents no evidence that the court commissioner

abandoned his neutral role or that the officer was reckless or

dishonest in preparing the affidavit. We therefore affirm the

district court’s decision to admit the evidence discovered in the

search of the N. 27th Street residence.
6 No. 12-3701

II.

Reed also challenges the court’s admission of the details of

his prior conviction for possession of heroin with intent to

distribute. In the instant case, Reed was similarly charged with

possession with intent to distribute heroin as well as being a

felon in possession of a firearm and using a firearm in furtherance of a drug trafficking crime. For the purposes of the felonin-possession charge, he stipulated to the existence of a prior

qualifying felony. The government nevertheless moved in

limine to admit the details of Reed’s prior heroin-related

conviction. The government contended that evidence of the

prior crime would be offered to demonstrate Reed’s intent,

knowledge and lack of mistake. The district court noted that a

bench trial eliminates the risk that a jury will be unduly

influenced by inappropriate evidence, and that the court

would apply its experience and expertise to analyze the

evidence when it was introduced. The court agreed that the

evidence could be relevant to the issues of intent, motive, and

lack of mistake.

Over Reed’s objection, Milwaukee police officer Jon

Osowski testified that Reed had previously been convicted of

“[p]ossession with intent, heroin, less than three grams, with

the enhancer of use of bulletproof garment as a second

subsequent drug offense.” Tr. at 135. The officer also testified

that, on the day Reed was arrested for that prior offense, police

officers were responding to a complaint of “shots fired” when

they encountered Reed along with several other men. Officer

Osowski stated that Reed ran when he saw the police officers,

stopped on their command, but refused to put his hands in the

air. Instead, the officers saw him toss an object into the brush.
No. 12-3701 7

An officer retrieved the object, which turned out to be fifty-two

foil packets of heroin totaling 2.87 grams. 

During Officer Osowski’s testimony, Reed renewed his

objection to this evidence, arguing that the undue prejudice

greatly exceeded any probative value. This time, the court

noted that Reed had already stipulated to the conviction, that

the evidence was admitted for the reasons previously stated,

but that the defense had an “appropriate concern” as to the

level of detail required for the government’s purposes. The

court then counseled the government not to explore the prior

offense conduct in detail because it would be a waste of time.

The government asked no further questions of Officer

Osowski. 

Initspost-trial brief, the government discussed Reed’sprior

felony conviction, emphasizing that on both occasions, Reed

was found with dozens of foil bindles containing heroin:

Finally, Reed’s previous felony conviction in 2001

for possession with intent to distribute a controlled

substance, which involved 52 foil bindles containing

heroin, dispels any doubt that he was unaware of

what was going on at the home. Recall that 39 foil

bindles containing heroin were recovered from the

top of an end table in the master bedroom. Taken

together, all the evidence in this case demonstrates

that Reed’s home was on N. 27th Street, not anyplace else, and that he knowingly distributed heroin

from that residence.

R. 47, at 16. In his own post-trial brief, Reed pointed out a

number of deficiencies in the government’s evidence, focusing
8 No. 12-3701

on a lack of direct evidence proving that he lived in the home,

knew about the heroin found in the master bedroom, or

exerted any control over the drugs or guns found in the home.

He instead pointed to Vera Sims, his former girlfriend, who

lived at the home and was found in the master bedroom where

the heroin and one of the guns were located. Sims had pled

guilty to a drug crime in state court, and Reed noted that, at

best, weak circumstantial evidence connected him to the

contraband.

The court, in its final ruling, mentioned the prior conviction

only once. The court first recounted the extensive evidence

connecting Reed to the residence itself and to the master

bedroom in particular, including a change of address form

listing the N. 27th Street address, a significant amount of mail

addressed to Reed, an appointment card for a home visit from

his probation officer (found under the mattress of the bed in

the master bedroom), two jackets belonging to Reed in the

closet of the master bedroom (one of which contained $300 in

cash), an address book, a default judgment for a speeding

ticket, a job application and photos of Reed (including a photo

showing Reed wearing one of the coats found in the master

bedroom closet). Reed had been observed letting the dogs out

on the morning of the search, and had been seen at the residence on at least two prior occasions. When arrested on the

day of the search, Reed was wearing slippers, and he asked an

officer to retrieve his shoes from the master bedroom, where

they were found in close proximity to the nightstand where

some of the heroin was discovered. Reed, who was unemployed, had $420 in cash in his pockets, this in addition to the

$300 found in his jacket hanging in the master bedroom closet.
No. 12-3701 9

In the context of detailing this litany of evidence, the court

addressed Reed’s prior conviction:

All of this coupled with the evidence that the tin foil

packaging was consistent with Reed’s prior offense

for drug distribution (prior conviction was stipulated to by Reed and the government (Ex. 35)) the

large amount of cash on the premises (Reed was

unemployed) and the recorded phone calls from the

jail (Exhs. 32 & 33) which show Reed’s familiarity

and concern with the residence and it contents

establish beyond a reasonable doubt that Reed

knowingly and intentionally possessed a controlled

substance and that he possessed the controlled

substance with an intent to deliver it. Second, this

establishes that Reed was a convicted felon and in

possession of a firearm which had traveled in

interstate commerce.

R. 54, at 5–6.

We have recently clarified the proper role of 404(b) evidence and cautioned against its use without a complete

analysis of the true probative value as compared to the undue

prejudice. See Miller, 673 F.3d at 695–700. See also United States

v. Lee, 724 F.3d 968 (7th Cir. 2013). In some instances, Rule

404(b) evidence is proffered to prove intent, knowledge or

absence of mistake but only by raising an improper inference

that the defendant had a propensity to commit the crime. We

therefore cautioned that the court must carefully consider how

the particular Rule 404(b) evidence will be used to prove
10 No. 12-3701

intent, knowledge or lack of mistake and make certain that it

is not through the use of a propensity inference.

Reed was convicted in a bench trial and so the details of his

prior conviction were not presented to a jury that would be far

less equipped to understand the limitation against the use of

propensity evidence. In “bench trials, judges routinely hear

inadmissible evidence that they are presumed to ignore when

making decisions.” Harris v. Rivera, 454 U.S. 339, 346–47 (1981).

See also United States v. Stinefast, 724 F.3d 925, 931 (7th Cir.

2013) (“Judges often hear improper argument and other forms

of inadmissible evidence that they are presumed to disregard

when deciding matters of importance.”); United States v. Shukri,

207 F.3d 412, 419 (7th Cir. 2000) (“In a bench trial, we assume

that the district court was not influenced by evidence improperly brought before it unless there is evidence to the contrary.”). “To overcome this presumption of conscientiousness

on the part of district judges, a party must present some

evidence that the statement influenced the court's decisionmaking.” Stinefast, 724 F.3d at 931. 

In this instance, the district court judge considered the Rule

404(b) evidence only in the context of the similar packaging of

the heroin. But in Miller, we noted that a prior conviction for

cocaine possession could not be admissible merely because it

was for the same crime and because it also involved drugs in

small plastic bags. Miller, 673 F.3d at 699. “Pattern evidence is

propensity evidence, and it is inadmissible unless the pattern

shows some meaningful specificity or other feature that

suggests identity or some other fact at issue.” Miller, 673 F.3d

at 699 (emphasis in original). In Miller, we found that crack

cocaine packaged in plastic bags “is far too generic in drug
No. 12-3701 11

cases to make a pattern of two acts over eight years probative

of anything beyond propensity.” Miller, 673 F.3d at 699–700.

The same can be said of heroin packaged in foil bindles.

Indeed, Officer Wawrzyniakowski testified that he had

participated in “hundreds, if not thousands” of drug and

narcotics investigations in his fifteen years as a police officer,

and that based on his experience, heroin is “typically ...

packaged in aluminum foil bindles.” Tr. at 14. This evidence

that Reed had previously been in possession of heroin packaged in foil bindles was too generic to have anything more

than minimal probative value.

That said, we review the court's decision to admit or

exclude evidence for abuse of discretion. United States v. Simon,

727 F.3d 682, 696 (7th Cir. 2013); United States v. Thornton, 642

F.3d 599, 604 (7th Cir. 2011). We will reverse and order a new

trial only if any evidentiary errors are not harmless. Simon, 727

F.3d at 696; Fed. R. Crim. P. 52(a). Reed’s defense did not truly

involve questions of intent, knowledge or mistake in a manner

that would make the use of his prior conviction probative on

any of these issues. The court’s use of this evidence of similar

packaging was therefore questionable under our current case

law. But in the context of the extensive list of evidence on

which the district court relied to find that Reed exerted

ownership over the heroin, we find that any error was harmless. Again, had the evidence come before a jury, we may have

come to a different conclusion, but we presume that the court

was not unduly influenced by this weak pattern evidence. We

“can say ‘with fair assurance’ that the verdict was not substantially swayed by the error.” Miller, 673 F.3d at 701 (citing

Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
12 No. 12-3701

III.

Reed’s final challenge is to the sufficiency of the evidence

on all three counts in the indictment. We will overturn a

verdict for insufficiency of the evidence only if, after viewing

the evidence in the light most favorable to the government, the

record is devoid of evidence from which a rational trier of fact

could find guilt beyond a reasonable doubt. United States v.

McIntosh, 702 F.3d 381, 385 (7th Cir. 2012), cert. denied, 133 S. Ct.

1484 (2013); United States v. Olson, 450 F.3d 655, 664 (7th Cir.

2006). 

The court cited enough evidence to support its conclusion

that Reed constructively possessed the drugs and at least one

of the guns found in the home. See United States v. Caldwell, 423

F.3d 754, 758 (7th Cir. 2005) (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). Mere proximity to contraband, however,isnot enough to prove constructive possession.

United States v. Griffin, 684 F.3d 691, 696 (7th Cir. 2012).

Proximity must be coupled with other evidence, including

connection with an impermissible item, proof of motive, a

gesture implying control, evasive conduct, or a statement

indicating involvement in an enterprise in order to sustain a

guilty verdict. Griffin, 684 F.3d at 696.

In this case, Reed shared the residence with his girlfriend,

Vera Sims, her two teenaged sons, her mother and, at times,

another adult acquaintance. The heroin in this case was found

on top of and inside of three nightstands adjacent to the bed in

the master bedroom. One gun was discovered in a purse in the
No. 12-3701 13

closet of the master bedroom, near two of Reed’s jackets. A

second gun was recovered from the kitchen and a third was

found in the basement. Ammunition for the gun found in the

bedroom was located near the gun in the kitchen. The assault

rifle discovered in the basement was next to several grams of

marijuana. Calls that Reed made to Sims from jail after his

arrest also tied him to the home, and some of the conversations

appeared to relate to ongoing drug sales.

Otherthan the guns found in the basement and the kitchen,

all of the physical evidence was found in close proximity to

personal items belonging to Reed. As the government notes,

Reed was at the house when the search warrant was executed,

and had been seen there on numerous occasions in the week

before the search. A considerable amount of Reed’s personal

mail was strewn about the house, including in the master

bedroom in the very nightstands where the heroin was

recovered. Personal identifiers implicating Reed were found in

the purse from which the gun in the bedroom closet was

recovered. The gun was a mere four feet from the nightstand

containing heroin, steps from Reed’s shoes. Sims admitted that

she shared the bedroom with Reed, and a recent appointment

card from Reed’s probation officer was under the mattress of

the bed in the master bedroom. 

From this, the court could easily conclude that Reed lived

at the house and shared the master bedroom with Sims. The

heroin was found close to his clothing, shoes and other

personal belongings. See United States v. Irby, 558 F.3d 651, 654

(7th Cir. 2009). As for the guns, even if there was not enough

tying Reed to the guns in the basement or kitchen, there was

enough in the record to tie him to the gun in the closet of the
14 No. 12-3701

master bedroom, and only one gun was needed for the section

922(g)(1) conviction. See United States v. Buchmeier, 255 F.3d

415, 428 (7th Cir. 2001) (it is sufficient for the finder of fact to

conclude that the defendant possessed any one of the guns

charged in the indictment to sustain a conviction under the

felon-in-possession statute); 18 U.S.C. §§ 922(g)(1) and 924(e).

See also United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001)

(in joint residency case, husband may be found to constructively possess gun together with wife when the gun was found

in the nightstand next to the husband’s bed with his eyeglasses, clothing and wallet nearby). That gun, in addition to

being found near numerous personal items belonging to Reed,

was located in close proximity to $5000 worth of heroin.

Together with the other evidence in the record (including the

calls from the jail), that is enough to sustain the conviction for

possession of a firearm in furtherance of a drug trafficking

offense. See United States v. Eller, 670 F.3d 762, 765–66 (7th Cir.

2012), cert. denied, 132 S. Ct. 2728 (2012) (setting forth the factors

used to analyze the sufficiency of the evidence in a section

924(c) case). On this record, we cannot say that the record is

devoid of evidence from which a rational trier of fact could

find guilt beyond a reasonable doubt. McIntosh, 702 F.3d at 385.

The judgment is therefore

AFFIRMED.