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# United States Court of Appeals For the Seventh Circuit

No. 12-3701

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee ,

v.

A NTW AN K E NYA R E E D, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the

Eastern Distri ct o f Wi sconsi n No. 2: 10 -CR-0 00 80 -RTR-1 — Rudolph T. Ran da , Judg e.

A RGU E D M A

Y 31, 2013

— D E C I D E D M ARC H 10, 2014

Before F L AUM

, M AN I O N

, and R OVN E R

, Circ uit Judges.

R OVN E R , Cir cui t Judge. Follo wing a bench tr i al, Antw an Keny a Reed w as convic ted of possessio n with intent to di strib ute heroin, possessio n of a fi rear m by a felon, and possess i on of a fi rear m in furtherance of a drug tr affi cking
cr i me. On appeal, he contends that there w as no pro ba bl e
caus e to i ssu e the w arr ant that led to t he di scov ery of certain evidenc e used agains t hi m a t tr i al. He also maintai ns that the2 No. 12-3701
di stric t court abus ed i ts di screti on in allowing the government to present the details of a ten-y ear -old convic tion for he r oin di st rib uti on, evidenc e he clai ms w as used i mproper ly to demonstrate hi s propensi ty fo r commi tting heroin-related cri mes. Fin ally

, he asserts that the evidenc e w as insu ffi ci ent to demonstrate that he poss essed the guns or drugs sei zed from the home that w as searched, or that he used t he g uns in furtherance of a drug t raffi cking crim e. W e affi rm. I.
W e begi n wi th the w arr ant. On Mar ch 11, 2010, Milw aukee poli ce offi ce r Michael W awrzyniakowski sub mi tte d an affi d avit in support of an applic ation for a search w arr ant for 3353 N. 27th St reet in Milw aukee. In the appli cati on, the offi cer sought permi ssi on to search for heroin, guns, i tems affi li ated wi th heroin or guns, and any other evidenc e that could be used to demo ns tr ate contro l ov er the premi ses. In the affi davit supp or tin g the appli cati on, the offi cer av err e d that a reliab le confi denti al informant had informed hi m that Reed w as using the N. 27th St reet resi dence to st or e and sell heroin whi le armed wi th a large cali ber handgun. The informant had seen Reed armed and deli v ering heroin at the home wi thin the prior
sev enty-tw o hours. The offi cer stated that the informant knew from past exper i ence that heroin i s a whi te powdery sub stance packaged in foi l packs or “bindles” for sale, and that the informant demonstrate d to the offi cer hi s knowledge o f the appearance a nd p a ckagin g of heroin. The informant told the offi cer that R e e d armed hi mself to prot ect again st other drug dealers who resi de in the same area.No. 12-3701 3
Th e offi cer av err ed that he beli ev ed the informant to be credible becau se the informant prov i ded detailed information in the past that led to the execution of a search w arr ant and the
arr est of three indi vidu als for possess i on o f ma rijuana and cocaine ba se wi th intent to deli v er

. The informant also suppli ed a physi cal descri ption of Ree d and posi tiv ely i denti fi ed Reed thro ugh Milwaukee P olic e Department book ing photo

gr aphs. The informant pre v i ously had giv en the offi cer locations of drug houses resulti ng in recov eries of drugs and fi rear ms by the offi cer and other s, and had supp li ed the offi cer wi th accu rat e information reg ardin g persons w anted on
w arr ants and persons under probat i on or supervis i on. The offi cer confi rmed that he corr obor ated the informa nt’s infor

mati on about Reed by v erifyin g t ha t Reed had a prior felony convic tion for possess i on wi th intent to deli v er heroin and that Reed w as cu rr ently o n probation for thatv ery offense. Reed contends that the affi davit w as too v ague and lacking in detail to supp or t a finding of probable caus e, and that the offi cer di d v ir t ua lly nothin g to corr obor ate the informant’s information other than confir ming innocent details such as Reed’s physi cal appearance and the location of t he resi dence. He also contends that the offi cer omi tte d relev ant information that contradic ted the informant’s account. F or example, the offi cers had surv ei lled t he home on N. 27th St reet, had seen Reed only bri efly and had not seen him e ng aged in any
sus pi ci ous acti vity

. The di stric t court deter mined t hat the 1

Reed also suggests that the of fi cer who fi l ed the af f i d avi t knew but di d 1
not reveal tha t Reed was ba rred fro m v i siti ng the N. 2 7th Str eet r esi dence (co ntinued. ..)4 No. 12-3701

w arr ant w as supp or ted by probable caus e and that, ev en in the absenc e of probable caus e, the evidenc e w ould not be excluded becau se the offi cer acted in goo d-fai th relianc e on the w arr ant. W e need not consi der whether the w arr ant w as supp or ted by probable caus e becau se the goo d-fai th exception to the exclusi onary rule appli es on these facts. U n i te d States v
. Leon , 468 U.S. 897, 923 (1984); United States v
. Miller, 673 F .3d 688, 693–94 (7th Ci r

. 2012). W e rev i ew de no v o a d istric t court's find ing t hat the goo d-fai th exception of Leon appli es to a particu lar warr ant. Miller, 673 F .3d at 693; United States v
. Bell , 585 F .3d 1045, 1 0 5 2 (7 th Ci r

. 2009). An offi cer's deci si on to obtain a w arr ant i s prima f ac ie evidenc e that the offi cer w as acting in goo d fai th. L e on , 4 6 8 U.S. at 921; Miller, 673 F .3d at 6 9 3. A defendant may rebut thi s evidenc e by demonstrat ing that (1) the i ssu ing judge abandoned the detached and neutral judi ci al ro le; (2) the offi cer w as di shonest or re ck less in prepar ing the affi davit; o r (3 ) the w arr ant w as so lacking in probable caus e that the offi cer could not reasonably rely on the judge' s i ssu ance of i t. Miller, 6 7 3 F

. 3 d at 688; Bell , 585 F .3d at 1052; United S tates v. Garcia , 528 F .3d 481, 487 (7th Ci r . 2008). Although the w arr ant appli cati on in t his instance lacked certain details, the si tuation here i s more comparable to Garcia

( ...c onti nued) 1 b ecause o f a “no -co nta ct” or der tha t had b een entered aga i nst him i n a do mestic di spute with a fo rmer gir l fri end l i v i ng at the home. Reed ci tes the testimo ny of the of fi cer’s partner tha t he (the partner) was awa re of the nocontact order . Nothing in th e recor d suppor ts a suggestio n tha t the offi cer who fi l ed t he affi dav i t knew and purpo seful l y withhel d this i nfor mati on fro m the co urt co mmissio ner i ssuing the warrant.No. 12-3701 5
than i t i s to Owens v
. United States , 387 F .3d 607 (7th Ci r

. 2004), the case on whi ch Reed large ly rel i es. In Owens , the informant’s information w as thr ee months old, compared to the sev entytw o hour t i me frame here. And the affi ant in Owens prov i ded
no information reg ardin g the informant’s reliab i li ty

. The

w arr ant appli cat io n w as a “bare bones” effort wi th mini mal detail. Becaus e of those major flaws, w e found that the w arr ant

w as so defi ci ent that no offi cer w ould reasonably r ely on i t, and t he L e on exception di d not apply

. In Garcia , as in Reed’s case, the information w as only three days rat her than three months old. The affi davit in Garcia and in Reed’s case speci fi ed that the informant had prov i ded reliab le information t o t he p o l ice in the past, that the informant w as fami li ar wi th th e contro lled sub stance at i ssu e and had personally seen drugs at the location to be searched. In Reed’s case, that information led to arr ests and charges in one case, and the offi cer av err ed that other information the informant had prov i ded in the past had later been corr obor ated. Offi cer W awrzyniakowski ’s affi davit
co ul d fai rly be described as thi n, but as in Garcia , w e thi nk there w as enough h ere for an offi cer to reasonably rely on the
co ur t commi ssi oner’ s i ssu ance of the w arr ant. See also Miller, 673 F

. 3 d at 693–94 (applying the Leon exception to a w arr ant
ev en though the appl icati on w as wri tte n wi th gener i c details becau se the infor mati on w as recent, based on fi rst-hand observ ation, and li kely again st the informant’s penal intere st). Reed present s no evidenc e that the court commi ssi oner abandoned hi s neutral ro le or that the offi cer w as reckless or di shonest in prepar ing the affi davit. W e there fo re affi rm the di stric t court’s deci si on to admi t the evidenc e di scov ered in the search of the N. 27th St reetresi dence.6 No. 12-3701
II. Reed also challen ges the court’s admi ssi on of the details of hi s prior convic tion for posses sio n of heroin wi th intent to di strib ute. In the instant case, Reed w as si mi larly charged wi th possess i on wi t h int e nt to di strib ute heroin as w ell as being a felon in possess i on of a fi rear m and using a fi rear m in further

ance of a drug tr affi cking cri me. For the purposes of the felonin-poss essi on charge, he sti pulated to the exis te nc e o f a prior quali fyi ng felony

. The government nev ert heless mov ed in limin e to admi t the de t a ils of Reed’s prior heroin-related convic tion. The government contended that evidenc e o f t he p r io r cri me w ould be offered to demonstrate Reed’s intent, knowledge and lack of mi stake. The di stric t court noted that a bench tr i al eli minates the ris k that a jury wi ll be undu ly influ enced by inappropr i ate evidenc e, and t hat the court

w ould apply i ts exper i ence and exper t ise t o analyze the evidenc e when i t w as intro duced. The court agr eed that the evidenc e could be relev ant to the i ssu es of intent, moti v e, and lack of mi stake. Ov er Reed’s objection, Milw aukee poli ce of fic er Jon Osowski testifi ed that Reed had prev i ously been convi cted of “[p]oss essi on wi th intent, heroin, less than thr ee gr ams, wi th the enhanc er of use of bulletpr o o f g arment as a second sub sequent d r ug offense.” T r

. at 135. The o ffi cer also testifi ed that, on the day Reed w as arr ested for that prior offense, poli ce offi cers w ere respondi ng to a complaint of “shots fi red” when they encountered Reed along wi th sev eral other men. O ffi cer Osowski stated that Reed ran when he saw the poli ce offi cers, stopped on their command , but refused to put hi s hands in the ai r . Instead, the offi cers saw hi m toss an object into the brush.No. 12-3701 7
An offi cer ret riev ed the object, whi ch turned out to be fi fty-tw o foi l packets of heroin totaling 2.87 grams.
Du r ing Offi cer Osowski ’s testim ony , Reed renew ed his objection to thi s evidenc e, arg uing that th e undu e prej udi ce gr eatly exceeded any probat i v e v alue. Thi s tim e , t he court noted that Reed had already sti pulated to the convic tion, that the evidenc e w as admi tte d for the reasons prev i ously stated, but that the defense had an “appropr i ate co ncern” as to the lev el of detail required for the government’s purposes. The court then couns eled the gov ernment not to e xplor e the prior offense c onduct in detai l becau se it w ould be a w aste of tim e. The government asked no further questi ons of Offi cer Osowski

. In i ts p os t- tr i a l bri ef, the government di scu ssed Reed’s p ri or felony convic tion, emphasiz ing that on both occasi ons, Reed

w as found wi th dozens of foi l bindles c ontaining hero in: Fin ally , Reed’s prev i ous felony convic tion in 2 0 0 1 for po sses si on wi th i ntent t o di strib ute a contro lled sub stance, whi ch inv olv ed 52 foi l bindles contai ning hero in, di spels any doubt that he w as unaw are of what w a s g o ing on at the home. Recall that 39 foi l bindles co ntai ning heroin w ere recov ered from the top of an end table in the master bedroo m. T aken tog ether , all the evidence in thi s case demonstrate s th a t Reed’s home w as on N. 27th St reet, not anyplace else, and that he knowi ngly di strib uted heroin from thatresi dence.
R. 4 7, a t 16. In hi s own post-tr i al bri ef, Reed poin ted out a numb er of defi ci enci es in the government’s evidenc e, focus ing8 No. 12-3701

on a lack of di rect evidenc e prov ing that he li v ed in the home, knew about the heroin found in the master bedroo m, or
exer ted any contro l ov er the drugs or guns found in the home. He instead poin ted to V era Sim s, hi s former g ir l fr iend, who li v ed at the home and w as found in the master bedroo m where the heroin and o ne o f t he guns w ere located. Sim s had pled gui lty to a drug cri me in state court, and Re e d no t e d that, at best, w eak ci r cum stanti al evidenc e connected hi m to the contraband. The court, in i ts final ruli ng, menti oned the prior convic tion only once. The court fi rst re co unted the ext ensi v e evidenc e connecting Ree d t o t he resi dence i tself and to the master bedroo m in particu lar

, inclu ding a change of address form li sting the N. 27th St reet address, a si gni fi cant amount of mai l addressed to Reed, an appoi ntment card for a home vis i t from hi s probat i on o ff ice r (found under the mattr ess of the bed in t he master bedroo m), tw o jacket s belongin g to Reed in the closet of the m aster bedro om (one of whi ch c ontained $300 in cash ), an address book, a default judgme nt for a speeding tic ket, a jo b appli cati on and photo s of Reed (inclu ding a photo showing Reed w earing one of the coats found in the master bedroo m closet). Reed had been observ ed letting the dogs out
on the mo r ning of the search, and had been seen at the resi

dence on at least tw o prior occasi ons. When arr ested on the day of the search, Reed w as w earing sli ppers, and he asked an offi cer to ret riev e hi s shoes from the master bedro o m, wher e they w ere found in close prox i mi ty to t he nig htstand where
so me of the heroin w as di scov ered. Reed, who w as unemploy ed, had $420 in cas h in hi s pockets, thi s in addi tion to the $300 found in hi s jacket hanging in the master bedroo m closet.No. 12-3701 9
In the context of detailing thi s li tany of evide nc e , the court addressed Reed’s pri or convic tion: All of thi s coupled wi th the evidenc e that the tin foi l packagin g w as consi stent w i th Reed’s prior offense for drug di strib uti on (pri or convic tion w as sti pulated to by Reed and t he government (Ex. 35)) the larg e a mount of cash on the premi ses (Reed w as unempl oy ed) and the recor ded phone calls from the j a il (Exhs. 32 & 33) whi ch show Reed’s fami li arit y and concern wi th the resi dence and i t co nt ents establi sh bey ond a reasonable doubt t ha t Reed knowi ngly and intentionally possess ed a contro lled sub stance and that he posse ssed the contro lled sub stance wi th an intent to deli v er i t. S e co nd, thi s est abli shes that Reed w as a convic ted felon and in possess i on of a fi rear m whi ch ha d tr av eled in interstat e commerce. R. 54, at 5–6.
W e hav e recently clari fi ed the proper ro le of 404(b) evid e nc e and cauti oned again st i ts use wi thout a complete analysi s of the tr ue probat i v e v alue as compared to the undu e prej udi ce. See Miller

, 673 F .3d at 695–700. See also United Stat es
v
. Lee, 724 F .3d 968 (7th Ci r

. 2013). In some instances, Rule 404(b) evidenc e i s proffe r e d to prove intent, knowledge or absenc e of mi stake but only by rais ing an improper inference that the defendant had a propensi ty to commi t the cri me. W e there fore cauti oned that the court mus t carefully consi der how the particu lar Rule 404(b) evidenc e wil l be used to prove10 No. 12-3701

intent, knowledge or lack of mis t a k e and make certain that i t i s not thr ough the use of a pro pensi ty inference. Reed w as convic ted in a bench tr i al and so the details of hi s prior convic tion w ere not presented to a jury that w ould be far less e qui pped to understand the li mi tation again st the use of propensi ty e v ide nce. In “bench tr i als, judges ro uti nely hear inadmi ssi

ble evidenc e that they are presumed to i gnor e when maki ng deci si ons.” Harris v
. Rivera , 454 U.S. 339, 346–47 (1981). See also United States v
. Stinef ast, 724 F .3d 925, 931 (7th C i r

. 2013) (“Ju dges often hear i mproper arg ument and other forms of inadmi ssi

ble evidenc e that they are presumed to di sregar d when deci ding m a tt e rs of i mport ance.”); United States v
. Shukri, 207 F .3d 412, 419 (7th Cir

. 2 0 0 0 ) (“I n a bench tr i al, w e assu me that the di stric t court w as not influ enced by evidenc e i mproperly brought before i t unles s ther e is evidenc e to the contr ary .”). “T o ov ercome thi s pr e su mp tion o f consci entious ness
o n t he part of di stric t judges, a party mus t present some
e v ide nce that the statement influ enced the court's deci si on
maki ng.” Stinef

ast , 724 F .3d at 931. In thi s instance, the di stric t court judge consi dered the Rule 404(b) evidenc e only in the context of the si mi lar packagin g of the heroin. But in Mil l e r , w e noted that a prior convic tion for
co ca ine possess i on could not be admis si ble mer ely becau se it

w as for the same cri me and becau se i t also inv olv ed drugs in smallplasti c bags. Miller, 673 F .3d at 699. “P atte rn evi dence is propensi ty evidenc e, and i t is inadmi ssi ble unless the patter n shows some meaningful speci fi ci ty or other feature that suggests identi ty or some o ther fact at i ssu e.” Miller, 673 F .3d at 699 (emphas i s in or i gin al). In Mil l e r, w e found that crack cocaine packaged in plasti c bags “i s far too gener i c in drugNo. 12-3701 11

cases to make a patter n of tw o ac ts ov er eight y ears p ro bati v e of anythin g bey ond propen sity .” Miller, 673 F .3d at 699–700. The same can be sai d of heroin packaged in foi l bindles. Indeed, Offi cer W

awrzyniakowski t e sti fi ed that he had partici pated in “hundreds, i f not thousands” of dru g and narcotics inv esti gatio ns in hi s fi fteen y ears as a poli ce offi cer , and that based on hi s exper i ence, heroin i s “typical ly

... packaged in aluminum foi l bindles.” T r

. at 14. This e v i dence that R e e d had prev i ously been in possess i on of heroin packaged in foi l bindles w as too g e ne r ic to hav e anythin g more than mini mal probativ e v alue. That sai d, w e rev i ew the court's deci si on to admi t or exclude evidenc e for abus e of di screti on. United States v
. Simon , 727 F .3d 682, 696 (7th C ir

. 2 0 1 3); United States v

. Thornton , 642 F .3d 599, 604 (7th Ci r

. 2011). W e wi ll r ev erse and o r d e r a new tr i al only i f any evidenti ary err or s are not harmless. Simon , 727 F .3d at 696; Fed. R. Crim. P

. 52(a). Reed’s defense di d not tr uly inv olv e questi ons of intent, knowledge or mi stake in a manner that w ould mak e the use of hi s prior convic tion probat i v e on any of these i ssu es. The c ourt ’s us e of thisevidenc e of si mi lar packagin g w as therefor e questi onable under our curr ent case law

. But in the context of the ext ensi v e li st of evidenc e o n whi ch t he di stric t court relied to find that Reed exer ted
o wn e r sh ip o v er the heroin, w e find t hat any err or w as har mless. Again, had the evidenc e come before a jury , w e may hav e
come to a di fferent c onclus i on, b ut w e presume that the court

w as not undu ly influ enced by thi s weak patter n evidenc e. W e “can say ‘wi th fai r assu rance’ that the v erdic t w as not sub stantiall y sw ay ed by the err or .” Mill e r, 6 7 3 F .3d at 701 (ci tin g Kottea kos v. United S tat es , 328 U.S. 750, 765 (1946)).12 No. 12-3701
III. Reed’s final challen ge i s to the suffi ci ency o f t he evidenc e
on all three counts in the indi ctment. W e wi ll ov ert urn a
v erdic t for insu ffi ci ency of the e v i dence o nly i f, afte r view ing the evidenc e in the li ght most fav or able to the government, the
recor d i s dev oid of evidenc e from whi ch a rat i onal tr i er of fact could find gui lt bey ond a r e a so na ble doubt. United States v
. McIntosh , 702 F .3d 381, 385 (7th Ci r

. 2012), cert. denied, 133 S. Ct. 1 4 8 4 (2 013); United States v
. Olson , 450 F .3d 655, 664 (7th Cir

. 2006). The court c i ted enough evidenc e to support i ts conclu si on that Re ed constructi v ely 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 Ci r

. 2005) (cons tr uctiv e p o ssessi on exis ts when a person knowingly has the po wer and the intention at
a give n t i me t o exer ci se do mini on and cont ro l ov er an o bject,
e it he r di rectly

, or thro ugh other s). Mer e prox i mi ty to contr a
band, howe v e r

, i s not enough to prove constructi v e possess i on. Unit e d S ta te s v
. Griffin , 684 F .3d 691, 696 (7th Ci r

. 2012). Prox i mi ty mus t be coupled wi th oth er evidenc e, inclu ding connecti on wi th a n imp ermis si ble i tem, proo f of motiv e, a gesture i mplying contro l, ev asiv e cond uc t, or a statement indi cating inv olv ement in a n enter pris e in or der to sus tain a gui lty verdi ct. Griffin , 684 F .3d at 696. In thi s cas e, Reed shared the resi dence wi th hi s g i rlfriend, V era Sim s, her t w o teenage d sons, her mother and, at tim es, another adult acquaintance. The heroin in thi s case w as found
on top of and insi de of three ni ghtstands adjacent to the bed in the master bedroo m. One gun w as di scov ered in a purse in theNo. 12-3701 13
cl o set of the master bedroo m, near tw o of Reed’s jacket s. A second gun w as recov ered from the kitch en and a t hir d w as found in the basement. Ammun i tion for the gun found in the bedroo m w as located near the g un in the kitchen . The ass ault rifle di scov ere d in the basem ent w as nex t to sev eral gr ams of mari juana. Calls t hat Reed made to Sim s from jail after hi s arr est also tied hi m to the home, and some of the conv ersations appeared to relat e to ongo ing drug sales. Other than the guns found in the basem ent and the kitch en, all of t he physi cal evidenc e w as found in close prox i mi ty to personal i tems belongin g to Reed. As the government notes, Reed w as at the house when the search w arr ant w as executed, and had been seen there on numerous occasi ons in the week before the search. A co nsiderable amount of Reed’s personal mai l w as strewn about the house, inclu ding in the master bedroo m in the v ery ni ghtstands where the heroin w as
recov ered. Personal i denti fi ers i mpli cating Reed w ere found in the purse fr om whi ch the gun in the bedroo m closet w as
recov ered. The g un w as a mere four feet fr o m the ni ghtstand contai ning heroin, steps from Reed’s shoes. Sim s admi tte d that she shared the bedroo m wi th Reed, and a recent appointment card from Reed’s probat i on offi cer w as under the mattr e ss of the bed in the master bedro om. Fr om thi s, t he court could easi ly conclu de that Reed li v ed at the house and shared the master bedroo m wi th Sim s. The heroin w as found close to hi s clothi ng, shoes and o t her personal belongin gs. See United States v
. Irby, 558 F .3d 651, 654 (7th Ci r

. 2009). As for the guns, ev en i f the r e w a s not enough tying Reed to the guns in the basem ent or kitch en, there w as enough in t he recor d t o t ie him t o the gun in t he closet of the14 No. 12-3701

master bedroo m, and only one gun w as needed for the secti on 922(g)(1) convic tion. See United States v
. Buchme ier, 255 F .3d 415, 428 (7th Ci r

. 2001) (i t i s suffi ci ent for the finder of fac t to conclu de that the defendant posse ss e d any one of the guns ch a r g e d in the indi ctment to sus tain a convic tion under the felon-in-poss essi on statute); 18 U.S.C. §§ 922( g)(1) and 924( e). See also United S tat es v. Alanis , 265 F .3d 576, 592 (7th Ci r

. 2001) (in jo int resi dency case, husband may be found to co ns t ructiv ely possess gun tog ether wi th wi fe when the gun w as found in the ni ghtstand next to the husband’s be d wit h hi s ey eglasses, clothi ng and w allet nearby). That gun, in addi tion to being found near numerous personal i tems belongin g to Reed,

w as located in close prox i mi ty to $5000 w or th of heroin. T oge ther wi th the other evidenc e in t he recor d (inclu ding the calls from the jail) , that i s enough to sus tain the convic tion for possess i on of a fi rear m in furtherance of a drug tr affi cking offense. See United Sta tes v
. Eller, 670 F .3d 762, 765–66 (7th Ci r

. 2012), cert. denied, 132 S. Ct. 2728 (2012) (setting forth the factors used to analyze the suffic i ency of the evidenc e in a secti on 924(c) case)

. On thi s recor d, w e cannot say that the recor d i s dev oid of evidenc e from whi ch a rat i onal tr i er of fa ct co uld find gui lt bey ond a reasonable doubt. McIntosh, 702 F .3d at 385. The judgment i s therefor e AFF IRM ED.