U.S. v. Gravens

• Decision Date: 21 November 1997
• Docket Number: No. 96-3704,96-3704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David S. GRAVENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 974

129 F.3d 974

UNITED STATES of America, Plaintiff-Appellee, v. David S. GRAVENS, Defendant-Appellant.

No. 96-3704.

United States Court of Appeals Seventh Circuit.

Argued April 17, 1997.

Decided Nov. 21, 1997.

Robert N. Trgovich (argued), Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee.

Travis S. Friend (argued), Beckman, Lawson, Sandler, Snyder & Federoff, Fort Wayne, IN, for Defendant-Appellant.

Before POSNER, Chief Judge, COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

On November 29, 1995, a federal grand jury indicted the defendant-appellant, David Gravens, alleging violations of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). The Government charged that Gravens, as a convicted felon, was in possession of firearms illegally. After his arraignment, the defendant filed a motion to suppress the evidence allegedly obtained in violation of his Fifth Amendment rights. The trial court granted the motion, suppressing two firearms charged in the indictment, and statements made by Gravens during a discussion with police on July 8, 1994. Gravens later filed a second motion to suppress the evidence, which was rejected by the trial court. The second motion sought the suppression of: (1) opinion testimony from an agent of the Bureau of Alcohol, Tobacco and Firearms concerning the charged firearms which had been suppressed as a result of the first motion; (2) incriminating testimony from Gravens' alleged accomplice; and (3) transcripts of Gravens' guilty plea on charges of burglary in state court. The defendant entered a conditional plea agreement, reserving the right to appeal the denial of the second motion. On October 16, 1996, Gravens was sentenced to 58 months and 18 days imprisonment, a $1,000 fine, and a $50 special assessment. On appeal, the defendant asserts that the trial court improperly denied his second motion to suppress the evidence. We affirm.

I. BACKGROUND

On October 4, 1983, Jim Beer ("Beer") of Decatur, Indiana, purchased an Ithaca, model 37 Feather Light, 12 gauge shotgun, serial # 371622142, from a Coast to Coast hardware store in Decatur. In approximately 1984, Beer obtained a .22 caliber semiautomatic Remington rifle.

In mid-March, 1994, Gravens contacted Chief Deputy William Crone ("Crone") of the Adams County, Indiana, Sheriff's Department in an effort to aid his girlfriend who was incarcerated in the Adams County jail. Gravens hoped to secure her release by helping the police make "several prominent drug arrests." Apparently, Gravens was interested in marrying his girlfriend and wanted to help speed up her release. Gravens told Crone he would contact him after he had made the appropriate arrangements, but he never did.

At approximately 12:20 a.m. on April 28, 1994, Beer reported that his residence had been burglarized and that several firearms and ammunition had been taken. The police report listed two of the firearms taken as a "12 gage [sic] Pump possibly an Ethica [sic]" and a ".22 semi-automatic riffle [sic] (possibly a remmington [sic] )[.]"

On May 2, 1994, Gravens was arrested in Van Wert County, Ohio, for driving under the influence of alcohol. The defendant was placed into custody at the Paulding County, Ohio, jail. The Van Wert Sheriff's Department notified Detective Eric Meyer of the Decatur Police Department of Gravens' arrest and reported that an inventory search of his vehicle had uncovered a trash bag containing ammunition, gun cases, magazine clips and a purchase receipt in the name of "James Beer." Meyer drove to Ohio, photographed the vehicle and its contents, and seized the evidence. Also, on May 2, 1994, Beer's insurance company wrote a subrogation letter addressed to the Decatur Police Department relating to the property stolen from Beer's residence. The letter described two of the firearms stolen as a "12g. shotgun pump Ithica [sic]" and a "22 semi-auto rifle Remington." The letter confirmed that the 12 gauge had been purchased at the Decatur Coast to Coast hardware store.

Crone learned that the defendant was in custody in Ohio. On May 3, 1994, Crone, along with Detective Robert Noack ("Noack"), drove to Ohio to meet with the defendant at the Paulding County jail. The two officers were interested in pursuing the defendant's offer to provide them with evidence relating to drug trafficking in Adams County. Additionally, the officers suspected that the defendant had some involvement with the Beer burglary. Before the interrogation, Crone and Noack advised the defendant of his Miranda rights, and the defendant signed a written acknowledgment and waiver of those rights. During the interrogation, Gravens admitted that he had stolen firearms from the Beer residence and, as the district court noted, he "may" have named his alleged accomplice, John Howard ("Howard"). He did not, however, reveal the specific location of the guns other than to suggest that he may have "gotten rid" of one or more of them in Fort Wayne. The defendant then went on to name several individuals in Adams County and Decatur from whom he believed he could purchase narcotics. Although the officers indicated that they could not help him with his difficulties in Ohio, they told Gravens they would pick him up upon his release from the Paulding County jail.

The defendant Gravens was released on June 8, 1994, and picked up by Crone and Noack. At the time, there was an outstanding warrant for the defendant's arrest in Adams County, but it was decided, in consultation with the prosecutor, that the warrant would be "sat on" or "pulled," meaning that the defendant would not be arrested by local officers. During the return trip to Decatur, it was suggested to the defendant that he should do all in his power to attempt to arrange narcotic purchases from those individuals he had identified during the jail interrogation. Gravens was instructed to contact Noack when the arrangements were finalized.

Crone and Noack met with Gravens periodically during the next several weeks to discuss his progress. For whatever reason, Gravens was unable to produce any evidence relating to drug trafficking in either Decatur or Adams County. Gravens responded by complaining that a member of the Decatur Police Department was "leaking" the fact that he was an informant to the public. This apparently was preventing him from setting up drug deals. After a letter written by the defendant's girlfriend surfaced in the community which revealed Gravens' collusion with the police, Crone and Noack decided that Gravens would no longer be of any use as an informant and that he should be taken into custody on the outstanding warrant at their next meeting.

On July 8, 1994, Crone and Noack arranged to have one of their regular meetings with Gravens. They picked him up in a vacant parking lot, and, as usual, he lay down in the back seat to avoid being noticed. Gravens was not told he was under arrest and was going to jail, nor was he given Miranda warnings. Even though the lot was not far from the jail, Crone and Noack drove out of town with Gravens, taking a circuitous route as far afield as fifteen miles away in Monroeville, Indiana. During this twenty or thirty minute detour, Crone and Noack questioned Gravens as to why he was unable to make any narcotics purchases. At some point Gravens told the officers that the stolen guns were in Decatur, and later revealed that they were at Howard's residence.

Gravens was then taken to jail, and Deputy Crone and Detective Noack drove to Howard's residence to speak with him. A badly beaten woman answered the door and indicated that Howard had assaulted her. She told the officers that Howard was in the back bedroom of the house, and they proceeded inside, whereupon they found Howard asleep and intoxicated. Crone testified that he saw gun cases protruding from under Howard's bed. After searching under the bed, the officers found the two missing firearms. Howard was arrested on a domestic violence charge and the guns were confiscated.

At the jail, Howard was informed of his Miranda rights, which he acknowledged and waived in writing. Crone brought Gravens to the interrogation room to convince Howard to tell the police about the guns and Howard's involvement in the burglary. Howard confessed shortly thereafter.

Gravens was charged in the Adams Circuit Court under a two-count information for burglary and theft. On March 21, 1995, the defendant pleaded guilty to theft, and was sentenced to serve three years at the Indiana Department of Corrections. On November 29, 1995, Gravens was indicted in federal district court for being a convicted felon in possession of or receiving firearms and/or ammunition that has been shipped or transported across state lines, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Sometime after the two firearms had been retrieved from Howard's residence, Special Agent James Cronin ("Cronin") of the Bureau of Alcohol, Tobacco and Firearms ("BATF") was assigned to the Gravens case and obtained a Firearms Transaction Record ("FTR") from Coast to Coast, for the purpose of proving that the Ithaca gun had, in fact, been moved across state lines. The Assistant United States Attorney had asked Cronin to obtain the FTR by facsimile so that it could be attached to the Government's memorandum in opposition to the defendant's motion to suppress evidence. Initially, to locate the record, Cronin provided the Coast to Coast clerk with Beer's name, as well as the make and model type of the firearm. Even with this information, the clerk was nevertheless unable to find the record. When Cronin provided the clerk with the serial number, taken directly off the gun, the clerk was able to retrieve the record. Cronin maintains that had he not been asked to retrieve the record quickly, he could easily have driven to the Coast to Coast personally and conducted a year-by-year search of their records until the purchase records relating to the Ithaca...