“The joint possession instruction properly informed the jury that Rainone could still have possessed the gun even if others had also possessed the firearm.”
How later courts described this case
- “The joint possession instruction properly informed the jury that Rainone could still have possessed the gun even if others had also possessed the firearm.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO RAINONE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09-cr-206 — Harry D. Leinenweber, Judge.
____________________
ARGUED JANUARY 22, 2016 — DECIDED MARCH 14, 2016
____________________
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Mario Rainone appeals his convic-
tion for unlawful possession of a firearm. The Addison Police
Department (“APD”) arrested Rainone for residential bur-
glary after placing a GPS device on Rainone’s vehicle. Follow-
ing the arrest, APD officers obtained a search warrant for Rai-
none’s residence, in which they discovered a handgun. At
trial, the jury convicted Rainone.
2 No. 14-3154
Rainone asks this Court to vacate his conviction on three
grounds. First, he argues that the district court erred by giving
the jury a joint possession instruction. Second, he argues that
the exclusionary rule should apply to any evidence obtained
as a result of the APD’s GPS surveillance. Third, he argues that
testimony that the gun was stolen was irrelevant and unfairly
prejudicial. We hold that none of these arguments entitle Rai-
none to a new trial, and thus we affirm the conviction.
I. Background
In December 2008, the APD began investigating Rainone
in connection with a string of residential robberies. In January
2009, APD officers placed a GPS device on Rainone’s vehicle
without his consent or a warrant. With information gained
from the GPS device, the APD arrested Rainone for burglary
on February 12. 1
After arresting Rainone, the APD obtained a warrant to
search Rainone’s condominium. The next day, the APD
searched the two-bedroom residence and recovered a Smith
& Wesson .357 caliber revolver from the top drawer of the
nightstand in the condominium’s southeast bedroom. Officers
also recovered many of Rainone’s belongings from the bed-
room, including mail addressed to Rainone, photographs of
Rainone, and Rainone’s birth certificate and Illinois identifica-
tion card.
On March 5, 2009, a federal grand jury indicted Rainone
for possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g). Rainone filed a number of pretrial motions,
1Rainone pled guilty to residential burglary in Illinois state court. He
was sentenced to seven-and-a-half years’ imprisonment.
No. 14-3154 3
including a motion to dismiss the indictment and a motion to
suppress evidence obtained as a result of the GPS search. The
district court denied all of these motions.
On February 25, 2013, Rainone’s case proceeded to trial.
The only contested issue at trial was whether Rainone pos-
sessed the firearm. The government presented the testimony
of three APD officers who described the search of Rainone’s
bedroom and the items recovered during the search.
In addition, the government presented the testimony of
Michele Cozzo, Rainone’s roommate. In exchange for immun-
ity, Cozzo testified that Rainone resided in the southeast bed-
room for several months prior to his arrest. Cozzo stated that,
to her knowledge, no one other than Rainone stayed over-
night in that bedroom. But Cozzo explained that in addition
to herself and Rainone, several others, including Cozzo’s
mother, cousin, and ex-boyfriend, had keys to the condomin-
ium at various points in time. Further, Cozzo noted that other
people, including herself, would sometimes enter Rainone’s
bedroom. She testified that a man named Vincent Forliano
would regularly visit Rainone at the condominium. Finally,
she testified that she never saw Rainone with a gun and that
she never saw a gun in the condominium.
The government also presented the testimony of Bryan
Thalin, the registered owner of the recovered firearm. Thalin
testified that he purchased the gun in 1971 and that someone
stole it from his home in October 2008. He stated that he was
out of town when the gun was stolen and that he had never
seen Rainone prior to trial.
Following the presentation of the evidence, the district
court instructed the jury on the element of possession. Over
4 No. 14-3154
Rainone’s objection, the court gave a joint possession instruc-
tion explaining that multiple people can share possession of
an object. After deliberating, the jury convicted Rainone of
possession of a firearm by a felon. Rainone filed a motion for
a new trial, which the district court denied. The district court
sentenced Rainone to fifteen years’ imprisonment, the statu-
tory mandatory minimum. Rainone appeals.
II. Discussion
Rainone contends that his conviction should be vacated
for three reasons: (1) the joint possession jury instruction was
erroneous; (2) the district court incorrectly denied his motion
to suppress; and (3) Thalin’s testimony was inadmissible.
A. Joint Possession Jury Instruction
Rainone argues that the joint possession jury instruction
offered at trial was unsupported by the evidence, outdated,
and overbroad. Following the presentation of the evidence,
the district court instructed the jury as follows:
More than one person may possess an object. If
two or more persons share possession, that is
called joint possession. If only one person pos-
sesses the object, this is called sole possession.
The term “possess” in these instructions in-
cludes both joint and sole possession.
A person may possess an object even if other in-
dividuals may have had access to a location
where the possession is alleged. Also, a person
may possess an object even if other individuals
share the ability to exercise control over the ob-
ject.
No. 14-3154 5
We review whether a jury instruction “fairly and accu-
rately summarizes the law” de novo. United States v. Erramilli,
788 F.3d 723, 730 (7th Cir. 2015). But we review a district
court’s decision to give a particular instruction for an abuse of
discretion. Id. We will reverse a conviction only if “the instruc-
tions as a whole misled the jury as to the applicable law.”
United States v. Curtis, 781 F.3d 904, 907 (7th Cir. 2015) (citation
and internal quotation marks omitted).
Rainone first contends that the district court abused its
discretion by offering a joint possession instruction. Accord-
ing to Rainone, a joint possession instruction should only be
offered when there is evidence that more than one person had
possession and in this case, there was no evidence of joint pos-
session.
Rainone mischaracterizes the evidence at trial. There was
substantial evidence that more than one person could have
possessed the gun. Cozzo testified that others had access to
Rainone’s bedroom and that guests would occasionally enter
the room. The fact that other people had access to, and in fact
did access, Rainone’s bedroom supports a reasonable infer-
ence that they could have possessed the gun. Rainone even
tried to use this evidence to his advantage at trial by suggest-
ing that other people possessed the firearm. For example, dur-
ing Rainone’s opening statement, he argued that the firearm
was recovered from “an area that people have joint access to”
and he described all of the other individuals who had access
to Rainone’s bedroom. The joint possession instruction
properly informed the jury that Rainone could still have pos-
sessed the gun even if others had also possessed the firearm.
Additionally, we have upheld joint possession instructions
in similar cases. In United States v. Aldaco, 201 F.3d 979, 990
6 No. 14-3154
(7th Cir. 2000), we held that a joint possession instruction was
appropriate when police officers observed the defendant
holding a gun while three other men were with him. We noted
that “the fact that there were four men on the rooftop on the
night in question supports the need for the instruction on joint
possession.” Id. More recently, in United States v. Lawrence, 788
F.3d 234, 246 (7th Cir. 2015), we held that a joint possession
instruction is “necessary” when contraband is recovered from
a jointly-occupied residence. Like in Aldaco and Lawrence,
there was sufficient evidence to support this instruction, and
thus there was no error.
Rainone also argues that the instruction was a misstate-
ment of the law because it was outdated and overbroad. He
protests that the second part of the instruction did not con-
form to our Circuit’s pattern jury instructions. 2 Beyond noting
this inconsistency, Rainone does not specify what exactly is
wrong with this instruction, although he does assert that it re-
lieves the government’s burden of proof.
2 The pattern jury instructions state:
A person possesses an object if he has the ability and in-
tention to exercise direction or control over the object, ei-
ther directly or through others. [A person may possess an
object even if he is not in physical contact with it [and
even if he does not own it].]
[More than one person may possess an object. If two or
more persons share possession, that is called “joint” pos-
session. If only one person possesses the object, that is
called “sole” possession. The term “possess” in these in-
structions includes both joint and sole possession.]
7th Cir. Crim. Pattern Jury Instr. 4.13 (2012 ed.).
No. 14-3154 7
Of course, pattern jury instructions cannot override prec-
edent, and the district court’s instruction is amply supported
by our case law. In fact, the instruction offered at trial was al-
most identical to the instruction we upheld in United States v.
Thornton, 463 F.3d 693, 696 (7th Cir. 2006). And we recently
upheld a similar instruction in Lawrence. See 788 F.3d 245–46.
In sum, the district court did not err by giving the joint pos-
session instruction.
B. Motion to Suppress
Next, Rainone argues that his conviction should be va-
cated because the APD obtained the evidence against him as
a result of an unconstitutional search. In 2009, the APD ar-
rested Rainone after monitoring him using a GPS device at-
tached to his vehicle. But in 2012, the U.S. Supreme Court is-
sued its decision in United States v. Jones, 132 S. Ct. 945, 949
(2012), which held that attaching a GPS device to a suspect’s
vehicle constitutes a search under the Fourth Amendment.
Rainone contends that under Jones, the APD’s GPS monitoring
constituted a search, and because the APD did not obtain a
warrant or Rainone’s consent, the search violated the Fourth
Amendment. Thus, according to Rainone, the district court
should have granted his motion to suppress and excluded the
evidence obtained as a result of the APD’s unconstitutional
GPS surveillance.
When reviewing a denial of a motion to suppress, we re-
view a district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Glover, 755 F.3d 811,
815 (7th Cir. 2014). The exclusionary rule is a prudential doc-
trine designed to deter future constitutional violations by bar-
ring the introduction of evidence obtained in violation of the
Constitution. See Davis v. United States, 131 S. Ct. 2419, 2426
8 No. 14-3154
(2011). Under the good-faith exception, when police “act with
an objectively ‘reasonable good-faith belief’ that their conduct
is lawful,” the exclusionary rule does not apply. Id. at 2427 (ci-
tation omitted). In Davis, the Supreme Court held that the
good-faith exception applies when a police officer conducts a
warrantless search in reasonable reliance on binding appel-
late precedent that is later overturned. Id. at 2429.
The district court denied Rainone’s motion to suppress be-
cause it held that under the good-faith exception, the exclu-
sionary rule did not apply to any evidence obtained as a result
of the GPS surveillance. The court noted that at the time of the
search, Seventh Circuit precedent permitted police officers to
install a GPS device on a suspect’s vehicle without a warrant.
See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). Accord-
ingly, the district court concluded that the APD relied on this
precedent in good faith and that therefore, exclusion was not
warranted.
We have applied the good-faith exception to cases similar
to this one. In United States v. Brown, 744 F.3d 474, 476–77 (7th
Cir. 2014), we held that the good-faith exception applies to
GPS surveillance conducted prior to the 2012 Jones decision.
We explained that binding precedent in this Circuit, in partic-
ular United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) and
United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011), es-
tablished that the installation and use of a GPS device were
not within the scope of the Fourth Amendment. Brown, 744
F.3d at 476–77. Therefore, “the exclusionary rule does not ap-
ply to the acquisition of GPS location data, within the Seventh
Circuit, before Jones.” Id. at 477. We reiterated this holding in
United States v. Taylor, 776 F.3d 513, 517 (7th Cir. 2015): “Brown
makes clear that Garcia and Cuevas-Perez are pre-Jones binding
No. 14-3154 9
circuit precedent holding that ‘installation of a GPS device,
and the use of the location data it produces, are not within the
scope of the [F]ourth [A]mendment.’”
Rainone tries in vain to distinguish Brown and Taylor. He
argues that because the APD was acting under Illinois juris-
diction and was investigating Rainone for state law crimes,
we should not apply the federal good-faith exception or con-
clude that it was reasonable for the APD to rely on federal ap-
pellate precedent. Instead, Rainone asks us to apply the Illi-
nois good-faith exception, which is narrower than its federal
counterpart, and Illinois state court precedent, which did not
clearly permit warrantless GPS surveillance prior to Jones.
This argument fails because of the fundamental principle
that federal law, not state law, controls the admissibility of ev-
idence in a federal prosecution, even if the evidence was
seized by state officials and would not be admissible in state
court. United States v. Quintanilla, 218 F.3d 674, 678–79 (7th Cir.
2000). As the Supreme Court has explained:
In determining whether there has been an un-
reasonable search and seizure by state officers,
a federal court must make an independent in-
quiry, whether or not there has been such an in-
quiry by a state court, and irrespective of how
any such inquiry may have turned out. The test
is one of federal law, neither enlarged by what
one state court may have countenanced, nor di-
minished by what another may have colorably
suppressed.
Elkins v. United States, 364 U.S. 206, 223–24 (1960). In other
words, to determine whether evidence should be excluded
10 No. 14-3154
under the Fourth Amendment, we assume that the state au-
thorized police officers to act the way they did. See United
States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005). Illinois state
law is irrelevant to the admissibility of the evidence in this
case.
Hence, the federal good-faith exception and Seventh Cir-
cuit precedent govern whether the exclusionary rule applies.
Indeed, this principle is implicit in Taylor, in which we applied
the federal good-faith exception, even though the surveillance
was conducted by the Indianapolis Metropolitan Police De-
partment. 776 F.3d at 514. Since Brown and Taylor make clear
that the good-faith exception applies to Rainone’s Fourth
Amendment claim, the district court correctly denied Rai-
none’s motion to suppress.
C. Thalin’s Testimony
At trial, Thalin testified that he was the rightful owner of
the gun recovered from the condominium and that the gun
was stolen from his home in October 2008. Rainone objected
to Thalin’s testimony in his motion in limine and in his motion
for a new trial. Rainone argued that the testimony was irrele-
vant to whether he possessed the gun and unfairly prejudicial
because it might cause jurors to believe that he was responsi-
ble for the theft.
The district court denied both these motions. In response
to Rainone’s motion in limine, the district court concluded that
Thalin’s proposed testimony was highly relevant. And in re-
sponse to Rainone’s motion for a new trial, the district court
found that Thalin’s testimony did not entitle Rainone to a new
trial because neither Thalin nor the government suggested
that Rainone stole the gun. On appeal, Rainone argues that
No. 14-3154 11
the district court erred by dismissing these motions and per-
mitting Thalin to testify that the gun was stolen.
We review a district court’s evidentiary rulings for abuse
of discretion. United States v. Causey, 748 F.3d 310, 315–16 (7th
Cir. 2014). We afford a district court’s evidentiary rulings spe-
cial deference and will reverse only if no reasonable person
could take the view adopted by the trial court. Id. at 316.
“Even when an abuse of discretion occurs, however, reversal
only follows if admission of the evidence affected the defend-
ant’s substantial rights.” Id. (quoting United States v. Richards,
719 F.3d 746, 758 (7th Cir. 2013)). That is, we will only reverse
a conviction when a reasonable juror would find the govern-
ment’s case significantly less persuasive absent the improper
evidence. Id.
To be admissible, evidence must be relevant. Fed. R. Evid.
402. Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence”
and that fact “is of consequence in determining the action.”
Fed. R. Evid. 401. In addition, “[t]he court may exclude rele-
vant evidence if its probative value is substantially out-
weighed by a danger of … unfair prejudice … .” Fed. R. Evid.
403.
We disagree with Rainone’s contention that Thalin’s testi-
mony was irrelevant. Without Thalin’s testimony, the jury
could have assumed that someone else who had access to Rai-
none’s bedroom owned the gun, and thus placed it in the
nightstand. But the fact that Thalin, and no one else, was the
rightful owner of the firearm made it less likely that anyone
else, including the various guests at Rainone’s condominium,
possessed the gun. The fact that the gun was stolen also made
12 No. 14-3154
Rainone himself less likely to have possessed the gun, since
he too was not the lawful owner.
Further, Thalin’s testimony was relevant because it largely
ruled out one of the condominium’s frequent guests as the
possessor of the gun. Thalin testified that his gun was stolen
in October 2008. And Cozzo testified that her ex-boyfriend
moved out of the condominium in September 2008—one
month before the gun was stolen from Thalin—and did not
have a key to the condominium after that. Putting two and
two together, it appears that Cozzo’s ex-boyfriend could not
have placed the gun in the nightstand because Thalin still had
the gun in his possession when the ex-boyfriend had access to
the condominium, and the ex-boyfriend did not have access
to the condominium after the gun was stolen. Therefore, Tha-
lin’s testimony made it considerably less likely that Cozzo’s
ex-boyfriend possessed the gun and consequently, more likely
that Rainone did.
We also do not think that Thalin’s testimony unfairly prej-
udiced Rainone. Rainone argues that Thalin’s testimony
caused the jury to believe that Rainone stole the gun from
Thalin’s home and that as a result, he was unfairly preju-
diced. 3 See Fed. R. Evid. 404(b)(1) (“Evidence of a crime,
3 Rainone supports this point by arguing that Thalin’s testimony
could have been substituted with less prejudicial evidence, including tes-
timony from the various guests of Rainone’s condominium that they did
not possess the gun and records indicating that Thalin owned the gun.
According to Rainone, these alternatives “have substantially the same or
greater probative value but a lower danger of unfair prejudice ….” Old
Chief v. United States, 519 U.S. 172, 183 (1997). Setting aside the fact that Old
Chief is expressly limited to cases involving proof of felon status, see id. at
183 n.7, these alternative means of proof do not establish when the gun
was stolen and as such would not exclude Cozzo’s ex-boyfriend as the
No. 14-3154 13
wrong, or other act is not admissible to prove a person’s char-
acter in order to show that on a particular occasion the person
acted in accordance with the character.”).
We are not convinced that the jury would jump to the con-
clusion that Rainone stole the gun. Neither Thalin nor the
government expressed or implied that Rainone was responsi-
ble for the theft. In fact, Thalin testified that he had never seen
Rainone before.
But even if the jury did believe that Rainone stole the gun,
the risk of unfair prejudice was slight. Federal Rule of Evi-
dence 404(b) “prohibits the admission of evidence of other
crimes, wrongs, or acts for the purpose of proving a person’s
character or propensity to behave in a certain way.” United
States v. Anzaldi, 800 F.3d 872, 882 (7th Cir. 2015). In this case,
if the jury believed that Rainone stole the gun, it could have
made an impermissible propensity inference that unfairly
prejudiced Rainone.
However, the jury also could have made a far more obvi-
ous inference: If Rainone stole the gun, he necessarily pos-
sessed it. In other words, if the jury believed that Rainone
stole the gun, the jury could have inferred that he also pos-
sessed the gun, because these acts are, by definition, related.
Unlike an impermissible propensity inference, this inference
would have been proper and would not unfairly prejudice
Rainone. Similarly, we routinely allow the introduction of
prior bad acts for purposes other than proving propensity. See
possessor of the gun like Thalin’s testimony did. In other words, these al-
ternative means of proof do not have the same probative force as Thalin’s
testimony.
14 No. 14-3154
Fed. R. Evid. 404(b)(2) (“[E]vidence may be admissible for an-
other purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.”). And because we think that this permissible
inference was the far more obvious one for the jury, the risk of
prejudice from Thalin’s testimony was not substantial.
In sum, given the testimony’s modest risk of prejudice and
its considerable probative value, we conclude that the district
court did not abuse its discretion by admitting it.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.