55 F.3d 1257 (7th Cir. 1995), 94-1387, United States v. Woody

Docket Nº:94-1387.
Citation:55 F.3d 1257
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sebe T. WOODY, Defendant-Appellant.
Case Date:May 05, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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55 F.3d 1257 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sebe T. WOODY, Defendant-Appellant.

No. 94-1387.

United States Court of Appeals, Seventh Circuit

May 5, 1995

Argued Nov. 1, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied May 30, 1995.

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John J. Tharp, Jr., Juanita Temple (argued), Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

J. Michael McGuinness (argued), Elizabethtown, NC, for defendant-appellant.

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

COFFEY, Circuit Judge.

Defendant-appellant Sebe Tron Woody appeals his conviction and sentence for two counts of forcibly assaulting federal law enforcement officers in violation of 18 U.S.C. Sec. 111 and one count of possessing stolen mail in violation of 18 U.S.C. Sec. 1708. On appeal, Woody contends that the district court committed reversible errors, including improperly joining the stolen mail and assault charges for trial, erroneously denying the defense motion to suppress the evidence obtained from the search of Woody's car incident to his arrest, and improperly instructing the jury. Woody also argues that he was deprived of his Sixth Amendment right to the effective assistance of counsel, that the prosecutor's comments during closing argument were prejudicial and amounted to a denial of due process, also that the government's evidence was insufficient to support Woody's convictions. In addition, Woody claims that the district court erred in calculating his sentence pursuant to the federal sentencing guidelines. We affirm Woody's conviction and sentence.

I. FACTUAL BACKGROUND

On March 17, 1993, shortly after 9:00 a.m., Woody gave a forged check in the amount of $550, drawn on the account of Lloyd Semple and made payable to Karen Schofield, to his friend Susan Derby, who attempted to cash the check at the Western Springs National Bank in Naperville, Illinois. Unbeknownst to either Woody or Derby, Karen Schofield was a former bank employee and was well known to the bank's tellers. The bank teller to whom Derby presented the forged check refused to cash it, but permitted Derby to deposit the check in Karen Schofield's account. Subsequently Derby left the bank without any funds.

Later that day, at about 11:00 a.m., Officer Baker of the Naperville, Illinois Police Department observed a brown, two-door Datsun 310 hatchback traveling at approximately fifty-four miles per hour in a forty-five miles per hour zone. Policeman Baker entered the Datsun's license plate number in his patrol car's computer and found that the Datsun's license plates were registered to a 1982 Ford. Officer Baker activated the flashing overhead lights on his squad car and immediately observed a flurry of activity on the part of the passengers in the brown Datsun. Both the front and back seat passengers turned to look at the police car and then bent down. The Datsun's driver, Woody, pulled the vehicle over to the curb, exited the vehicle and quickly approached Officer Baker's squad car. Officer Baker informed Woody that he had stopped him because the license plates on the Datsun were registered to another vehicle. Woody explained that his own car, a Ford, was in for repairs at a Goodyear dealership, that he had borrowed the Datsun from the dealership, and that he had placed the Ford's license plates on the Datsun so that he could operate it. Officer Baker directed Woody to return to his car while Baker checked the status of his driver's license.

Officer Baker watched Woody and his two passengers while he waited for a response to his computer query regarding Woody's driver's license. Baker observed the front seat passenger, later identified as Cyrus Spaulding, as he appeared to lean forward, open

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and close the glove compartment. After Baker's check on Woody's license revealed that it had been revoked, he radioed for assistance. When Officer Sytar arrived shortly thereafter, Baker walked to the Datsun and asked Woody to step out of the car. Officer Sytar asked the Datsun's two passengers to step out of the car while Officer Baker took Woody back to the squad car and placed him under arrest for driving with a revoked driver's license, having no proof of insurance, and making improper use of vehicle registration.

While Officer Sytar detained the two passengers just behind the Datsun, Officer Baker searched the passenger compartment of the car. When he found the glove compartment was locked, he used the ignition key to unlock it. In the glove box, Baker discovered a white, unsealed business envelope filled with seventy-one personal checks and two money orders. 1 These checks were neither made payable to Woody or his passengers nor were they drawn on accounts held by Woody or his passengers. 2 Officer Baker returned to the squad car, advised Woody of his Miranda rights, and inquired of Woody about the checks. Woody claimed that he was employed as a courier for a trucking company and that it was his job to deliver the checks pursuant to his employer's instructions. Woody refused to explain where or to whom the checks were to be delivered. Woody told Baker that he had no knowledge as to why some of the checks were in a state of completion while others were blank because he "just delivers them" and knew nothing more about them.

Officer Baker conveyed the defendant Woody to the police station where Detective Bisch questioned him concerning the checks. Bisch told Woody that he thought the checks had been stolen, a federal offense because it involved the United States mail. During the trial before the jury, Bisch testified that Woody replied that the police "had nothing on him" and "couldn't prove that they were stolen from the mail" because the police had found no envelopes for the checks. Woody also told Bisch that all the police could hold him for was "possession of stolen property, ... a misdemeanor, and that he could bond out, and ... be out by that afternoon." Woody was subsequently charged in an indictment with possession of stolen mail in violation of 18 U.S.C. Sec. 1708, and released on a $4,500 bond.

Woody's check-cashing operation continued on March 25, 1993, at around 8:30 or 9:00 a.m., when he picked up Denise Peterson, a heroin addict, and took her to get her morning "fix." The two then drove to the Mid-City National Bank in North Riverside, Illinois, where Woody handed Peterson a check to cash in the amount of $460 drawn on the account of Lloyd Semple and made payable to Betty De La Rosa. Peterson cashed the check, returned to the car, gave Woody half of the cash, and retained the other half. Woody and Peterson then proceeded to the Rolling Meadows courthouse, where Woody had a scheduled court appearance on an unrelated case.

The police, who suspected that Woody was in possession of stolen checks in addition to those found in his glove box, set up a multijurisdictional surveillance team, employing postal inspectors as well as local police, to monitor Woody's actions. This surveillance began on the same day, March 25, 1993, at the Rolling Meadows courthouse, where Detective Bisch observed Woody exiting the parking lot after his court appearance. Woody, still accompanied by Peterson and followed by law enforcement officers, drove to the North Riverside shopping mall, where

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he retrieved a blank check drawn on Sidney Orlov's account from the trunk of the car and filled in the check for $600 payable to Betty De La Rosa. Peterson, again at Woody's direction, took the check to the branch of the Mid-City National Bank inside the mall, cashed it, returned to the car, and gave Woody most of the money. Immediately after Peterson returned to Woody's car, Postal Inspector Randy Brown approached the car to arrest Woody and Peterson. Brown testified that he made eye contact with Woody, held out his badge and yelled "Police. Stop." when he was within one or two car lengths of Woody's vehicle. Woody accelerated away from Inspector Brown with enough speed to throw Peterson to the floor of the car, spun the car to the left, and accelerated out of the parking lot. Detective Gustafson of the Western Springs Police Department was standing in the roadway blocking Woody's path. Gustafson was also holding up his badge and yelling, "police," but Woody floored the gas pedal, forcing the detective to dive onto the sidewalk and out of harm's way. Woody drove up over the curb to avoid another police vehicle, and proceeded northbound. With their sirens blaring and lights flashing, the police pursued Woody, but failed to apprehend him at that time.

Later that same afternoon, postal inspectors received information that Woody had just made a telephone call from a nearby gas station. 3 Postal Inspector Tokarski proceeded to the gas station in his vehicle and inquired of the uniformed attendant if he had seen an individual matching Woody's description. The attendant informed Tokarski that a man fitting that description was living in the apartment building next door to the gas station. At this time Inspector Tokarski recognized Woody's car parked near the apartment building, and returned to the gas station and called for backup assistance.

Woody was just getting into his car when Tokarski returned to the apartment building. Tokarski, who was dressed in civilian clothing, ran to the back window of Woody's car, drew his gun and banged his weapon several times on the rear passenger side of the car. He yelled to Woody, "Police. You're under arrest. Turn off the car and put your hands on the window." Tokarski testified that Woody then turned, made eye contact with the inspector, and dropped the transmission into...

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