U.S. v. Evans

• Decision Date: 17 June 1994
• Docket Number: No. 93-2940,93-2940
• Citation: 27 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald B. EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1219

27 F.3d 1219

UNITED STATES of America, Plaintiff-Appellee, v. Ronald B. EVANS, Defendant-Appellant.

No. 93-2940.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1994.

Decided June 17, 1994.

Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Office of the U.S. Atty., Dyer, IN, for plaintiff-appellee.

Arlington J. Foley (argued), Merrillville, IN, for defendant-appellant.

Before WOOD, Jr., COFFEY, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Ronald B. Evans appeals his conviction for five counts of a six-count indictment returned against him for allegedly operating an automobile chop shop out of his father's garage in Hebron, Indiana. Count 1 charged Evans with operating, maintaining, and controlling a chop shop in violation of 18 U.S.C. Sec. 2322. Counts 2 and 3 charged Evans with receiving, possessing, concealing, and storing a motor vehicle that had crossed the state line after being stolen, in violation of 18 U.S.C. Secs. 2313 and 2. Count 4 alleged that Evans possessed a 1991 GMC Jimmy with intent to sell it knowing that the Vehicle Identification Number ("VIN") had been unlawfully altered in violation of 18 U.S.C. Secs. 2321 and 2. Count 5 charged Evans with knowingly and unlawfully altering the VIN of the 1991 GMC Jimmy, in violation of 18 U.S.C. Secs. 511 and 2. Count 6 charged Evans with making false statements with the intent to influence a federally insured bank to issue a loan in violation of 18 U.S.C. Sec. 1014.

Before trial Evans moved to suppress the evidence seized by the government and statements made after a warrantless search on the property where his car repair business was located. The district court denied the motion to suppress, finding that Evans' father had consented to the search of the property. At the close of the government's case, the trial court granted Evans' motion for a judgment of acquittal on Count 1. A jury found Evans guilty on the remaining five counts.

At Evans' sentencing hearing, the district court denied the defendant's request for a two-point reduction of his base offense level under Sec. 3E1.1 of the Sentencing Guidelines ("Guidelines" or "U.S.S.G.") for acceptance of responsibility. The court sentenced Evans to thirty-three months imprisonment, imposed a $6,000 fine, and ordered restitution in the amount of $7,498.98. Evans appeals his conviction and sentence. We affirm.

I. BACKGROUND

A. The Hearing on the Motion To Suppress

Two confidential informants told FBI Agent David Roth that Chris Mauger was involved in the theft of vehicles, particularly late model Chevrolet Blazers and pickup trucks. The informants stated that Mauger and his confederates would steal a dealer's license plate from a car dealer's lot, go to another dealer to test drive a vehicle, and duplicate the car key. The thieves would later return and steal the vehicle they had taken on the test drive, and place the stolen dealer's plate on the stolen car. Based upon this information, the FBI decided to conduct an investigation of Mauger and his associates. During their surveillance of Mauger and his associates, the FBI observed them stealing vehicles and attaching dealer plates to stolen vehicles.

While surveilling Mauger's residence at 2400 Ralston Street in Gary, Indiana, on December 10, 1992, FBI agents noted that a new green and tan, four-door Chevrolet Blazer truck bearing an Illinois dealer license plate was parked in the driveway. The agents checked the National Crime Information Center ("NCIC") which informed them that, according to the Illinois Secretary of State, the license plate was registered to Currie Motors in Chicago, Illinois. An agent telephoned James Pop, Currie Motor's general manager, who revealed that someone had stolen the license plate from the dealership in March 1992. Pop also informed the agent that Currie Motors was a Lincoln Mercury dealership and therefore did not sell Chevrolet Blazers.

The Blazer remained parked in Mauger's driveway until 5:20 p.m., when the agents observed an individual later identified as Mark Kertis, one of Mauger's criminal associates, drive off in the truck. The two confidential informants also had informed the agents that for many years Mauger had been delivering the stolen vehicles to what they referred to as an unknown disposal location. In an attempt to learn the location of the disposal location and the identity of the person receiving the stolen vehicles, the agents followed the Blazer as it proceeded down the highway until it arrived at 925 State Road 2 in Hebron, Indiana. The Blazer pulled into the driveway for that address and entered a large garage through one of two overhead doors. The door immediately closed.

Ten FBI agents drove up the driveway and exited their vehicles. Agent Roth approached the garage, which had two overhead garage doors and two entrance doors, and knocked on the left entrance door. Moments later, Evans exited from the right entrance door. The agents identified themselves to Evans, and placed him under arrest for receiving a stolen vehicle. The justification for Evans' arrest, as reflected in the eventual charges in the indictment, increased as a result of evidence gained during a search of the premises. Mark Kertis, the person who had delivered the Blazer, followed Evans as he exited the garage and the agents arrested him as well. Several agents conducted a protective sweep of the garage, checking for the presence of others involved in the criminal operation. The agents had their guns drawn when they approached the garage, but they holstered their weapons after Evans and Kertis were arrested and the protective sweep was completed. Evans was advised of his Miranda rights and signed a form indicating he understood his rights.

As the agents approached the garage, Agent William Warner noticed someone standing in the window of the house on the property, which was located approximately 130 feet from the garage. Warner testified that he observed the person holding either "a rifle or possibly the fold of a curtain" beside him, and that he believed it prudent to investigate. With his gun drawn but pointing down at his side, Warner went to the front door of the house where he was met by Glenn Evans ("Glenn"), the defendant's father. From the threshold of the door, Warner identified himself and requested that everyone in the house remain in the foyer area inside the door until the arrests were completed. Glenn lived in the house with his wife, their daughter, his son-in-law, and two grandchildren. When everyone was in the foyer, Warner holstered his weapon. Warner and Glenn raised their voices and Glenn accused the agents of intimidating his family. Warner loudly explained that the agents were in the midst of arresting suspects near the garage. Warner added that the occupants of the house should remain in the foyer of the house for everyone's safety while the agents completed the arrests at the garage.

Glenn ignored Warner's admonition to remain in the house and stated that because he was on his property he would go where he pleased. Glenn eventually walked over to the garage with his son-in-law to speak to Agent Roth. Glenn identified himself to Agent Roth as the defendant's father and the owner and occupant of the residence and the garage. In response to the agent's questions, Glenn stated that his son operated a business out of the garage. He also related that his son did not lease the property and paid neither rent nor utility bills. Agent Roth testified that Glenn informed him that he had keys to the entrance doors of both garage bays, but that he had lost the key to the entrance door to the right bay. Nevertheless, Glenn told Roth that there was an unlocked door inside the garage between the two bays that allowed Glenn to travel freely from the left bay to the right bay where the defendant's business was located.

Roth testified at the suppression hearing that Agent May produced a search consent form and informed Glenn that the agents could not search without a warrant and that Glenn had the right to refuse to consent. The agents allowed Evans to speak to his father at this point. The agents overheard Glenn ask his son whether stolen vehicles were on the property, and Evans responded that obviously the automobiles were stolen, or the FBI would not be on the premises. Glenn and Evans were overheard discussing whether Glenn should consent to search, and with Evans' agreement, Glenn signed the consent form authorizing a search of the entire premises. The agents proceeded to search the garage and adjacent areas. Evans repeatedly told the agents that he wished to cooperate, and he stated that there were at least seven stolen vehicles on the premises. After Glenn had signed the consent form, neither Evans nor Glenn objected to any aspect of the search.

At the suppression hearing Glenn refuted the agents' testimony in several respects. According to Glenn, the initial encounter with the FBI at the house was more threatening than Agent Warner's description. Glenn stated that the agent refused to tell him what was happening despite his repeated inquiries, and that he ordered everyone out of the house. According to Glenn, the argument between he and the agent and Glenn died down when three other agents appeared and took the obstreperous agent aside.

After about ten or fifteen minutes had passed, Glenn stated he went to the garage where an agent met him and asked if he would sign a consent form so the agents could conduct a search. ¹ The agent allegedly told him that if he signed the consent form the agents would not search his house and that "it would go an awful lot easier on [Evans]"; if he refused to consent, according to Glenn, the agent stated that the FBI would obtain a search warrant and search his house as well as other areas of his premises. Glenn testified that he could not read the form because of the failing light and his weak eyes, and that he asked the agent to...