United States of America v. Shamone White

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1315
U NITED STATES OF A MERICA
Plaintiff-Appellee,
v.
SHAMONE WHITE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 22-cr-20012 — Colin S. Bruce, Judge.
____________________
A RGUED F EBRUARY 14, 2024 — DECIDED M ARCH 15, 2024
____________________
Before SCUDDER , ST. EVE, and LEE, Circuit Judges.
ST. EVE, Circuit Judge. A jury convicted Shamone White of
possessing marijuana with intent to distribute, 21 U.S.C.
§ 841(a)(1) and (b)(1)(D), possessing a firearm in furtherance
of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), and
possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). On ap-
peal, he challenges his firearm convictions, arguing that the
government presented insufficient evidence to establish pos-
session. He also contends that the district court improperly

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2 No. 23-1315
instructed the jury, permitting it to find him guilty based
solely on his admission that he touched the gun a week before
his arrest. Because we find the evidence sufficient for each
conviction and determine that the instruction was not mis-
leading, we affirm.
I. Background
A. Factual Background
On January 29, 2022, a speeding car caught the attention
of Kankakee Sheriff’s Deputies Griffin Able-Bernier and Cal-
vin Zirkle. They followed the car, which contained two occu-
pants, a driver and a passenger, until it pulled into the park-
ing lot of a liquor store. The Deputies watched from a distance
as the driver, Elijah Campbell, got out and went inside while
the other occupant waited in the front passenger seat. At that
point, Deputies Able and Zirkle recognized Campbell from
previous encounters. Campbell’s license was suspended, and
he could only operate vehicles equipped with a Breath Alco-
hol Ignition Interlock Device (“BAIID”) to ensure his sobriety.
Campbell returned and the Deputies followed as he drove to
the parking lot of a nearby takeout restaurant. As the Depu-
ties pulled up behind the car, the passenger, Shamone White,
exited the car and walked toward the front door of the restau-
rant. At that time, the Deputies had little interest in White.
They instead approached the car, asked Campbell to step out,
confirmed that his license was still suspended and that the car
lacked a BAIID, and placed him under arrest.
The Deputies then considered whether they should im-
pound the car or turn it over to someone else. Campbell told
them it belonged to his girlfriend and she needed it for er-
rands and prenatal appointments. Faced with this decision,

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No. 23-1315 3
the Deputies shifted their attention to White, who offered to
take the car. He said he was staying at a nearby hotel and
could drive the car to Campbell’s girlfriend’s home. Con-
cerned about a strong smell of unburnt cannabis in the vehi-
cle, the Deputies agreed that White could take the car pro-
vided he had a valid driver’s license and a search of the vehi-
cle turned up no contraband.
Behind the front passenger seat lay two bags: one large
blue bag and one smaller gray bag. White explained to the
Deputies that the blue bag was his and contained his daugh-
ter’s PlayStation and some other “miscellaneous stuff.”
Deputy Able picked up both bags, handing the blue bag to
White. He then asked what was inside: “You got no like large
amounts of cash in here, no cannabis—none of that stuff in
here?” White denied having any contraband, after which
Deputy Able, out of White’s view, glanced inside the gray bag
and saw a firearm. Deputy Able instructed White to open the
blue bag, revealing exactly what White denied it contained—
$3,336 in cash and two pounds of cannabis. The cannabis was
in three vacuum-sealed plastic bags. One had been ripped
open and held nine smaller bags, about an ounce each. The
blue bag also contained an open box of plastic storage bags, a
Madden 22 PlayStation game, a stick of deodorant, and a pair
of underwear.
After discovering the cannabis inside White’s bag, the
Deputies arrested and searched him, finding cash, two plastic
baggies of cannabis, a pack of Kool cigarettes, fingernail clip-
pers, and a hotel keycard. They then asked whether the gray
bag also belonged to him, but White denied ownership. A
more thorough search of the gray bag revealed a loaded Wal-
ther Creed 9mm pistol, a box of 9mm ammunition, two scales

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4 No. 23-1315
with residue on them (later confirmed to be cannabis residue),
a pack of Kool cigarettes, and a toothbrush in a travel con-
tainer. The firearm and the scales were in the same compart-
ment of the gray bag, and police later learned that the firearm
had been reported stolen.
The Deputies searched the rest of the vehicle, finding no
other contraband. They did, however, find an empty Newport
cigarette box in the driver’s side door, a box of Newport ciga-
rettes in the center console, and another box of Newports on
the dashboard. They also searched Campbell, who did not
possess cash, drugs, or any other contraband.
After placing White under arrest, the Deputies questioned
him about the gray bag: “[S]o we found a gun in there, okay.
Is there gonna be any reason that you put your hands on it or
anything like that? Is there gonna—any DNA on there?”
White seemed to know the gun Deputy Zirkle was talking
about and responded, “Not that I know—I didn’t know it was
in there today.… But I don’t—I don’t know if I touched it be-
fore but I know I didn’t touch it today because I didn’t [know]
it was there.” Deputy Zirkle prompted, “So maybe at some
point if—if we do, you know, send it off to the lab—,” to
which White admitted that he touched it, eventually stating
that he had touched it last Saturday, though he had never shot
it and did not know who it belonged to.
B. Procedural Background
In March 2022, a grand jury indicted White for possessing
marijuana with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(D), carrying a firearm during and in fur-
therance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), and possessing a firearm as a felon in

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No. 23-1315 5
violation of 18 U.S.C. § 922(g)(1). The indictment stated that
each offense occurred “[o]n or about January 29, 2022.”
1. Trial
At trial in October 2022, the jury saw body camera footage
and heard testimony from Deputies Able and Zirkle describ-
ing the events laid out above. Drug enforcement expert Clayt
Wolfe, an Illinois State Police master sergeant and the director
of the Kankakee Area Metropolitan Enforcement Group, also
testified. Both the defense and prosecution issued subpoenas
for Campbell to testify at trial, but he failed to appear.
After the Deputies testified to the facts surrounding
White’s arrest, complemented by excerpts from body camera
footage, Wolfe gave expert testimony about common prac-
tices in drug trafficking. He explained that drug dealers typi-
cally purchase large quantities of a narcotic and then divide it
into smaller increments for distribution using small plastic
bags and scales. He also testified that large amounts of nar-
cotics—often prepackaged into smaller amounts—plastic
baggies, scales, firearms (often stolen) and ammunition, mul-
tiple cell phones, and large amounts of cash constitute the
common tools of drug traffickers. In fact, he noted it would be
rare for a dealer to not carry scales with their drug contra-
band. Examining photos of the contraband recovered from
the blue and gray bag, Wolfe opined that together, the evi-
dence suggested that the owner of the contraband was en-
gaged in drug trafficking and that the contraband items col-
lectively represented the tools of a drug trafficker.
2. Jury Instructions and Verdict
Over White’s objection, the district court gave the jury the
following “on or about” instruction:

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6 No. 23-1315
The Indictment charges that the crime happened on or
about January 29, 2022. The government must prove
that the crime happened reasonably close to the date.
The government is not required to prove that the crime
happened on the exact date.
The next day, the jury found White guilty on each charge.
3. Motion for Acquittal
After trial, White moved for a new trial and for a judgment
of acquittal on the two charges for possessing the firearm. He
made two arguments in support of the motions: that the gov-
ernment presented insufficient evidence to convince a reason-
able jury that he possessed the firearm, and that the “on or
about” jury instruction impermissibly allowed the jury to con-
clude that merely touching the firearm the week before satis-
fied the possession requirement.
The district court denied White’s motions. It explained
that the jury could have reasonably inferred that White con-
structively possessed the gun due to its physical proximity,
the presence of scales with drug residue in the same bag, and
the fact that together, the contents of the blue bag—which he
admitted to owning—and the gray bag made up the tools of
the drug trade. That the cigarette brand found in the gray bag
was consistent with the brand found on White, and the ab-
sence of evidence tying Campbell to the drugs or other con-
tents of the gray bag, bolstered that inference. Finally, the
court found that White’s admission to having touched the
gun a week prior satisfied § 922(g)(1)’s requirements.
As for White’s objection to the “on or about” jury instruc-
tion, the court found that this circuit’s precedent supports
such an instruction.

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No. 23-1315 7
At sentencing in February 2023, the district court sen-
tenced White to a total of 144 months’ imprisonment: 60
months for possessing marijuana with intent to distribute and
84 months for his possessing a firearm as a felon, to run con-
currently, and 60 months for possessing a firearm in further-
ance of a drug trafficking offense, to run consecutive to the
other counts. White now challenges the jury verdict and the
district court’s denial of his motion for acquittal, reiterating
the arguments he advanced in his motion for acquittal.
II. Analysis
Federal law prohibits anyone convicted of a felony from
possessing a firearm. 18 U.S.C. § 922(g)(1); see also United
States v. Perryman, 20 F.4th 1127, 1135 (7th Cir. 2021). It also
prohibits anyone from possessing a firearm “in furtherance
of” a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A); see also
Perryman, 20 F.4th at 1134. White contests only the possession
element of his convictions for each of these offenses.
A. Sufficiency of the Evidence
We review a district court’s denial of a Federal Rule of
Criminal Procedure 29 motion for judgment of acquittal de
novo. United States v. Hidalgo-Sanchez, 29 F.4th 915, 924 (7th
Cir. 2022). When that motion is based on the sufficiency of the
evidence, “we review the evidence presented at trial in the
light most favorable to the government and draw all reasona-
ble inferences in its favor.” Id. (quoting United States v. Ander-
son, 988 F.3d 420, 424 (7th Cir. 2021)). Our review is highly
deferential. “Ultimately, we ‘will overturn a conviction only
if, after reviewing the record in this light, we determine that
no rational trier of fact could have found the essential ele-
ments of the offense beyond a reasonable doubt.’” Id. (quoting

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8 No. 23-1315
Anderson, 988 F.3d at 424). In short, “[i]f there is a reasonable
basis in the record for the verdict, it must stand.” Id. (quoting
United States v. Moshiri, 858 F.3d 1077, 1082 (7th Cir. 2017)).
White argues that the government put forth insufficient
evidence to establish that he possessed the firearm, as re-
quired to be convicted under §§ 922(g)(1) and 924(c)(1)(A)(i).
Possession may be either actual or constructive. See United
States v. Price, 28 F.4th 739, 753 (7th Cir. 2022). To prove con-
structive possession, the government must show more than a
defendant’s “mere proximity” to the firearm. But “‘proximity
coupled with evidence of some other factor—including con-
nection with [an impermissible item], proof of motive, a ges-
ture implying control, evasive conduct, or a statement indi-
cating involvement in an enterprise is enough to sustain a
guilty verdict.’” United States v. Griffin, 684 F.3d 691, 696 (7th
Cir. 2012) (quoting United States v. Morris, 576 F.3d 661, 668
(7th Cir. 2009)).
Here, a jury could have inferred that White possessed the
firearm from his reactions to the Deputies’ questions. When
Deputy Zirkle asked him about the firearm without showing
or describing it to him, White seemed to know exactly what
gun Deputy Zirkle was talking about. He said he “didn’t
know it was in there today” and was not sure if he had
touched it before. When Deputy Zirkle suggested they might
check the gun for fingerprints, White admitted that he had
touched it the previous Saturday. A jury could reasonably
rely on White’s awareness of the gun and his admission that
he had touched it at some point to conclude that he construc-
tively possessed the gun on the day of his arrest.
But that is not the only evidence of possession—other ev-
idence bolsters that inference. The firearm was in close

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No. 23-1315 9
proximity to White in the car on the day of the offense. A jury
could have reasonably relied on this proximity, coupled with
multiple other factors, to conclude that White constructively
possessed the firearm. White admitted he owned the blue bag,
which contained significant quantities of cannabis, some of it
packaged for distribution in small plastic bags. The blue bag
contained no scales, while the gray bag immediately next to it
contained scales tainted by cannabis residue. A reasonable
jury could infer that White, who was carrying drugs and sup-
plies for packaging those drugs, would also carry scales to
weigh the drugs as he packaged them for distribution. In-
deed, at trial, the government’s drug enforcement expert Mas-
ter Sergeant Wolfe explained that it would be extremely rare
for a dealer to carry drug contraband without scales to meas-
ure it. The presence of scales in the gray bag provides a rea-
sonable basis for the conclusion that the gray bag, along with
its contents, also belonged to White.
Not only are scales a crucial tool of the drug trade, so are
handguns and ammunition, according to Master Sergeant
Wolfe. Examining photographs of the contents of both bags,
that expert concluded that together, the items in both bags
formed a complete set of drug trafficking tools.
In addition to the scales, other contents of the gray bag
pointed to White’s ownership. White had a package of Kool
cigarettes in his pocket, a match for the brand of cigarettes in
the bag. The toothbrush in the gray bag also lined up with
White’s hotel stay, the hotel card and nail clippers in his
pocket, and other personal items in the blue bag, including
deodorant and underwear. In these circumstances, a reasona-
ble jury could conclude the same person owned both bags.

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10 No. 23-1315
Nor is this reasonable inference undermined by any ap-
parent connection between the gray bag and Campbell or his
girlfriend as the driver and owner of the vehicle. Police found
Newport cigarettes, not Kools, scattered throughout the car.
And outside of the two bags in the back seat, nothing in the
car suggested its operator or owner needed drug scales as a
dealer or even a user. In sum, the evidence was more than suf-
ficient for a reasonable jury to conclude that White construc-
tively possessed the firearm on the day of his arrest.
White argues that the jury impermissibly relied solely on
his admission to touching the gun a week prior to his arrest
in finding that he possessed it. He also argues that the brand
of cigarettes—again in isolation—led the officers to conclude
that the gray bag was his. As we explained above, however,
the totality of the evidence, not those two pieces in isolation,
provided a sufficient basis for a reasonable jury to conclude
that he constructively possessed the firearm. This is enough
to sustain the guilty verdict. See United States v. Caldwell, 423
F.3d 754, 759 (7th Cir. 2005) (“Although it is possible the jury
decided the case in an impermissible fashion, that possibility
exists in every case and we give jurors the benefit of the doubt
unless ‘no rational juror could have found the essential ele-
ments of the crime beyond a reasonable doubt.’” (quoting
United States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002))). Be-
cause the evidence as a whole was sufficient to support his
conviction, we need not decide whether merely touching
(without holding or handling) a firearm can support a convic-
tion for possessing a firearm as a felon under § 922(g)(1).
B. Jury Instructions
“In the ordinary course we review a district court’s deci-
sion to give a jury instruction for an abuse of discretion,

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No. 23-1315 11
reversing ‘only if the instructions, taken as a whole, misled
the jury.’” United States v. Thomas, 970, F.3d 809, 815 (7th Cir.
2020) (quoting United States v. Erramilli, 788 F.3d 723, 730 (7th
Cir. 2015)). Furthermore, “[i]f the instruction contains an error
or misguides the jury, we reverse a jury verdict only if the er-
ror prejudiced the litigant.” United States v. Hilliard, 851 F.3d
768, 782 (7th Cir. 2017). White argues that the “on or about”
instruction was unnecessary and permitted the jury to find
him guilty based solely on his admission to touching the fire-
arm the week before his arrest.
We cannot agree that the instruction misled the jury. For
one thing, there is no evidence that the jury relied solely on
White’s admission to find he possessed the firearm. At trial,
prosecutors presented many other facts to the jury, the totality
of which was sufficient for a juror to find that White construc-
tively possessed the firearm on the day of his arrest. In con-
text, nothing in the jury instructions directed the jury to con-
sider a different date than that of White’s arrest in isolation
and to the exclusion of evidence from the date of his arrest.
That cuts against finding prejudice.
This is particularly true in light of all charges for which he
was found guilty, not just possession as a felon in violation of
§ 922(g)(1). The jury convicted White for possessing the fire-
arm in furtherance of a drug trafficking offense in violation of
§ 924(c)(1)(A). The only evidence that White engaged in drug
trafficking was the cannabis found on January 29. There was
no evidence that he engaged in drug trafficking a week prior
when he allegedly touched the firearm. The § 924(c) guilty
verdict demonstrates that the jury did not lose sight of the
date he was found with distribution amounts of cannabis.
This verdict indicates the jury understood White to have

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12 No. 23-1315
possessed the gun on the same day that the evidence estab-
lished he engaged in drug trafficking—January 29, the day of
his arrest. Under these circumstances, we find that the district
court did not abuse its discretion in giving the instruction.
Despite our holding that the district court did not abuse
its discretion by including the “on or about” instruction, we
urge judges to consider carefully in each case whether that in-
struction is necessary. Here, the evidence centered undisput-
edly on January 29, and at least the § 924(c)(1)(A) charge re-
quired constructive possession on that day. In some cases, it
may be clearer to simply instruct the jury that the government
must prove that the crime happened on a particular date.
III. Conclusion
For these reasons, the judgment of the district court is
AFFIRMED.

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