U.S. v. Gillaum

• Decision Date: 20 January 2004
• Docket Number: No. 02-4015.,02-4015.
• Citation: 372 F.3d 848
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Durriel E. GILLAUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

372 F.3d 848

UNITED STATES of America, Plaintiff-Appellee, v. Durriel E. GILLAUM, Defendant-Appellant.

No. 02-4015.

United States Court of Appeals, Seventh Circuit.

ARGUED September 17, 2003.

DECIDED January 20, 2004.

AMENDED June 23, 2004^*.

COPYRIGHT MATERIAL OMITTED

Timothy M. O'Shea (argued), Peter M. Jarosz, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Morris D. Berman (argued), Madison, WI, for Defendant-Appellant.

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

A jury found Durriel Gillaum guilty of possession of a firearm by a felon and sentenced him to a prison term of 188 months. On appeal, Gillaum challenges the execution of the search warrant that uncovered the prohibited firearm, his interrogation, the failure of the government promptly to disclose a police report to defense counsel, the calculation of his prison sentence, and the constitutionality of the federal felon-in-possession of a firearm statute. We affirm.

I. Background

On December 4, 2001, at approximately 7:00 a.m., members of the Dane County (Wisconsin) Narcotics and Gangs Task Force, led by Detective Steven Greiber and Sergeant Gary Anderson, executed a search warrant for the apartment of Durriel Gillaum. The purpose of the search warrant was to search for drugs (specifically, but not exclusively, cocaine base), drug paraphernalia, and other items likely to constitute evidence of drug trafficking. In the four months prior to December 2001, on four occasions undercover officers had purchased cocaine from persons in the apartment.

Prior to entering Gillaum's apartment, Anderson pounded on the door to the apartment and shouted, "Police, search warrant." Anderson then began counting to himself and waving his arm to let the entry team know how much time had elapsed. After he waited five seconds, Anderson heard the sound of footsteps coming from inside the apartment. Anderson testified that the footsteps did not sound as if they were getting closer to the door and he could not discern whether they were moving from left to right or right to left.

After listening to the footsteps for three to five seconds, Anderson ordered a forcible entry into the apartment. Anderson later testified that he did not believe three to five seconds was sufficient time for the footsteps to reach the entry door. In his report and recommendation denying Gillaum's motion to suppress the discovery of the handgun, the magistrate judge found that approximately eight to ten seconds elapsed between Anderson's knock on the entry door and the task force's forcible entry into the apartment.

The footsteps Anderson heard appear to have been made by 13-year-old Tryphenia Sykes. Tryphenia is the daughter of Gillaum's wife, Mary Sykes.¹ Tryphenia testified that she was eating breakfast and watching television when she heard a knock on the door and someone say something. She started towards the door but did not reach the door before the task force rushed in.

Inside the apartment, the task force spread throughout the apartment. Members of the task force found Gillaum and Mary in their bed. Gillaum was handcuffed, taken to the living room and informed of the search warrant. In the living room, members of the task force learned that Gillaum was diabetic. Gillaum was asked if he was experiencing any medical problems and was told if he was having problems to let someone know. Gillaum was also asked if he needed any food. Gillaum indicated that he was all right and did not need any food. Detective Greiber then led Gillaum into the bathroom.

Once inside the bathroom, Greiber removed Gillaum's handcuffs and read Gillaum the Miranda warnings. Greiber asked Gillaum if he was familiar with the warnings. Gillaum told Greiber that he was familiar with the warnings and that he was willing to talk to Greiber.

Greiber then questioned Gillaum for approximately half an hour concerning drug activities. Part of this questioning focused on a drug dealer named Kevin Harper. Gillaum refused to provide Greiber with any information concerning Harper. Greiber testified that Gillaum was coherent and did not appear to be under the influence of drugs or alcohol. Greiber also testified that Gillaum did not express a desire to cease the interview, nor did Gillaum at any time assert his right to remain silent. Gillaum testified that he told Greiber that he (Gillaum) ended the interview by telling Greiber he no longer wanted to talk. After the interview Gillaum was again handcuffed and led back to the living room.

Meanwhile, members of the task force discovered in Gillaum's bedroom closet a Bryco .38 handgun and two magazines of ammunition. Approximately 15 minutes after the first interview in the bathroom, Greiber took Gillaum to the bedroom where he allowed Gillaum to dress and questioned him concerning the handgun. Greiber did not provide Gillaum with a second round of Miranda warnings. Greiber testified that Gillaum told him that the gun was not his but that he knew the gun was in his bedroom and that his fingerprints would likely be found on it, because he had handled the gun and worked the ammunition through it to make sure it worked and that it was safe.

On February 21, 2002, a federal grand jury in the Western District of Wisconsin returned a one-count indictment charging Gillaum with possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On April 15, 2002, Gillaum filed a motion to suppress the handgun asserting, inter alia, that the failure of the task force to obey the knock and announce requirements made the search unconstitutional. Gillaum also filed a motion to suppress his statement to Greiber in the second interview, asserting that the statement was obtained in violation of Gillaum's right against self-incrimination. Finally, Gillaum filed a motion to dismiss the indictment, contending that 18 U.S.C. § 922(g)(1) is unconstitutional because it exceeds Congress's power under the Commerce Clause of the United States Constitution.

On May 17, 2002, after an evidentiary hearing on Gillaum's suppression motions, a magistrate judge issued a report and recommendation concluding that Gillaum's motions should be denied. On May 30, 2002, the district court adopted the report and recommendation and denied all of Gillaum's motions. Gillaum's case then proceeded to trial.

At trial, Gillaum and two of his wife's children testified to the effect that the gun had been brought into his apartment by a man named Jori Stinson. According to Gillaum, Stinson had sold the gun to Rashan Ross, a friend of Gillaum's who, at the time, was staying with Gillaum and who had access to all areas of the apartment, Gillaum testified that he told Ross that he could not keep the gun in the apartment. Gillaum also denied that he told Greiber that he had seen the gun or worked ammunition through it. Sharon Sykes, one of Gillaum's daughters, testified that she had seen Stinson in the apartment and had overheard Gillaum tell Ross, "[y]ou can't keep that² here." Shawn Sykes, Gillaum's son, testified that he was present in Gillaum's apartment when Stinson sold Ross the gun and was later present when Gillaum told Ross that Ross could not keep the gun in the apartment.

After the jury entered deliberations, problems arose. The jury requested a transcript of certain portions of the testimony of Gillaum and Greiber. After receiving a rough transcript of the testimony, the jury sent a note to the court indicating that it could not resolve discrepancies between their memories of Gillaum's testimony and the transcript of his testimony. The court found that there were errors in the transcript. An important error was in the transcribed version of Gillaum's testimony. The rough transcript had Gillaum admitting to handling the gun. The parties agreed that Gillaum made no such admission. The district court found that the errors were likely to confuse the jury on critical issues and declared a mistrial.

A second trial was held a month later and, insofar as this appeal is concerned, it was a reprise of the first trial. Gillaum and his children offered the same testimony as at the first trial. The trial lasted only a day and the jury returned a guilty verdict that same day.

During the preparation of the presentence report, the government for the first time put forward a copy of a Bureau of Alcohol, Tobacco, and Firearms ("BATF") trace report concerning the handgun found in Gillaum's apartment. The report indicated that Brian Hesterly was the original owner of the gun, having purchased it from a sporting goods store. According to the report, a BATF agent interviewed Hesterly. Hesterly told the agent that his home had been burglarized and the gun was stolen. Included with the BATF report was a copy of a police report of the Fitchburg, Wisconsin police department's investigation of the burglary. The Fitchburg police report noted an interview with Hesterly. In that interview Hesterly told a Fitchburg police officer that he believed Stinson was the perpetrator of the burglary.

On October 8, 2002, Gillaum filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Gillaum argued that the BATF report constituted exculpatory evidence the government failed to turn over in violation of its obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On February 19, 2003, the district court denied Gillaum's motion.

While Gillaum's motion was pending, the district court entered a judgment of conviction. Gillaum was sentenced to 188 months in prison. Gillaum's prison sentence is to be followed by five years of supervised release.

Gillaum is eligible for such a substantial sentence because he has previously been convicted of aggravated battery and attempted robbery in Cook County, Illinois and armed robbery and possession with intent to deliver cocaine in Dane County, Wisconsin. A defendant who is found guilty...