913 F.2d 434 (7th Cir. 1990), 89-2526, United States v. Towns

Docket Nº:89-2526.
Citation:913 F.2d 434
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth TOWNS, also known as Kareem Allahdeem, Defendant-Appellant.
Case Date:September 18, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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913 F.2d 434 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth TOWNS, also known as Kareem Allahdeem, Defendant-Appellant.

No. 89-2526.

United States Court of Appeals, Seventh Circuit

September 18, 1990

        Argued April 19, 1990.

        As Amended Sept. 20, 1990.

        Rehearing Denied Nov. 21, 1990.

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[Copyrighted Material Omitted]

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        Robert W. Kent, Jr., Barry R. Elden, Asst. U.S. Attys., Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

        Miriam F. Miquelon, Debra Rae Bernard, Keck, Mahin & Cate, Nathan P. Eimer, Sidley & Austin, Chicago, Ill., for defendant-appellant.

        Before WOOD, Jr., and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

        HARLINGTON WOOD, JR., Circuit Judge.

        Defendant Kenneth Towns appeals the district court's entry of final judgment on the jury verdict finding him guilty of conspiracy to rob a bank and to use dangerous weapons to carry out the offense in violation of 18 U.S.C. Sec. 371; robbing the bank in violation of 18 U.S.C. Secs. 2 and 2113; and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c). Towns claims that his arrest was made without probable cause and the subsequent search of an apartment where he was staying was made without his consent. Towns also alleges that he was denied a fair and impartial trial when the trial judge failed to recuse himself, erroneously admitted certain evidence, and denied the defendant's motion for mistrial following his codefendants' guilty plea after the jury was impanelled.

       I. FACTUAL BACKGROUND

        On December 10, 1987, Randall Crane asked his sister to use her credit card to rent a car for him. The pair rented a grey 1988 Lincoln Continental bearing California license plates. Crane signed the car rental contract using the name David Alvin. Crane then drove from Los Angeles to Chicago with his close associates Kenneth Towns (also known as Kareem Allahdeem) and Clarence Gilkey (also known as Rashad Shabazz).

        Sometime around December 24, 1987, Towns, Gilkey, and Crane arrived at the apartment of Lamont Jackson at 7008 South Clyde in Chicago. Cecile Jackson, Lamont Jackson's sister, lived across the street in an apartment at 7007 South Clyde. Cecile Jackson and Towns were the parents of a four-year old daughter who lived with Cecile. Cecile agreed to allow Towns to periodically stay in her apartment from December 24, 1987, until January 27, 1988. During this period, both Cecile and Lamont Jackson saw Towns together with his traveling companions Gilkey and Crane.

        On January 28, 1988, Towns allegedly assisted Crane and Gilkey in their armed robbery of Illinois Federal Savings & Loan ("the bank") at 351 East 87th Street in Chicago. Defendant Crane walked into the lobby of the bank, drew an automatic firearm, and ordered a security guard and another bank employee to lie on the floor. At some point after that, Crane donned a black ski mask. Moments later, defendants Gilkey and Towns allegedly entered

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the bank. A bank teller discreetly tripped a silent alarm that activated the surveillance cameras that were located in the bank. Gilkey, who was also wearing a ski mask and carrying a gun, jumped over the teller counter, followed by an accomplice. Cecile Jackson later identified the accomplice, who carried a handgun and wore a dark nylon jacket, a dark sweatsuit, a wool cap, and sunglasses, pictured in still photos as Towns. At Towns's trial, Lamont Jackson testified that the second robber to enter the bank, who was photographed carrying a small nylon bag, was defendant Gilkey. Gilkey and Towns allegedly ordered Greg Brown, a bank employee, to open the safe. Brown complied with the request, and one of the defendants repaid him for his troubles with a pistol-whipping to the head. Brown placed $142,700 in various denominations, which was bound by money wrappers, into a bag that one of the robbers had provided. The robbers then fled the bank.

        At about 4:00 p.m. that same day, Towns arrived at Lamont Jackson's apartment and asked if Cecile Jackson had left the keys to her apartment. Upon learning that she had not left her keys, Towns, Crane, and Gilkey received Lamont's permission to wait in his apartment for Cecile to return from work. Lamont found Towns's informal attire of a blue sweatsuit to be unusual because Towns was normally an impeccable dresser. Crane was carrying a white plastic grocery bag that was full, but Lamont could not discern its contents because the top of the bag was covered with dark clothing. Lamont gave his visitors another bag after one of them had requested it. When Cecile arrived at Lamont's apartment at approximately 8:20 p.m., Towns, Crane, and Gilkey went across the street to Cecile's apartment.

        Cecile noticed that her guests had two bags, and she asked Towns if she could peek into them. Towns refused her request, and stated that they were Crane's property. Crane and Gilkey later left the apartment, and Towns stayed overnight. The next morning, Cecile gave Towns her keys, instructed him to take their daughter to Lamont's apartment, and left for work.

        On the morning of January 29, 1988, a patron of Chicago Police Officer Joseph Oliver's restaurant called Oliver to inform him that a bank robbery had occurred the previous day on 87th Street, that the person who committed the robbery drove a Lincoln Continental, and that she had observed certain items involved in the robbery. Oliver called his station and learned that Illinois Service Federal on 87th and Martin Luther King Drive had been robbed the previous day by three black males who fled in a light blue Lincoln Continental.

        Several hours later, the informant telephoned Oliver again to provide additional information. The caller stated that on the previous evening she had been with three men in an apartment, that she had seen some guns, that she overheard the men discussing the bank robbery, and that she heard them state that the money was in a bag. The informant said that she had seen the three suspects in a Lincoln Continental bearing California license plates, and added that they resided in California and were getting ready to return. The caller also revealed that the first name of one of the men was "Kareem," who the caller described as being "clean-cut," about six feet tall, and weighing approximately 200 pounds. The caller also told Oliver that Kareem was located in the area of 70th and Clyde and that he was staying with a woman and child in an apartment across the street from the apartment where the caller had seen him and heard the discussion about the bank robbery. The caller concluded the conversation by giving Oliver the telephone number of the apartment where Kareem was ensconced.

        Oliver went to his office, checked the telephone number that the informant had given him, and learned that it belonged to a second-floor residence at 7007 South Clyde. Oliver and several other police officers conducted surveillance in the area, and discovered a light blue Lincoln Continental with California license plates parked approximately one block from 7007 South Clyde. During their five-hour surveillance, the officers did not have any of the surveillance photos from the bank robbery and therefore

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relied exclusively on the description that the confidential informant had given.

        Chicago Police Officer Brad Williams, who was surveilling the area from a van 150 feet from 7007 South Clyde, saw a man fitting the caller's description accompanied by a small child emerge from the entrance to 7007 South Clyde. The man walked directly across the street and entered an apartment building. A few minutes later, he reappeared without the child and returned to 7007 South Clyde. A short while later, the man exited from the building, crossed the street, walked north to the intersection of 70th and Clyde, looked all around, and then started walking south on Clyde. When Officer Williams lost sight of the man, he radioed his observations to all of the other surveillance officers.

        At approximately 2:00 p.m. Officer Oliver, Sergeant Daniel Brannigan, and Sergeant West observed the man walking towards them after they had heard Officer Williams' radio reports. The man looked all around him "furtively" as he walked, and entered a clothing store at the corner of 71st and Clyde. Officer Oliver waited for the man outside the store, and approached him with his gun drawn and pointed down. Officer Oliver informed the man that he was a police officer and asked him his name. Officer Williams later testified that the man said his name was "Kareem something." Officer Williams then arrested and handcuffed the suspect, who was later identified as Kenneth Towns, also known as Kareem Allahdeem. 1

        Sergeants Brannigan and West drove up and placed the defendant in the back seat of the car. Sergeant Brannigan read Towns his Miranda rights, which Towns never asserted. During their search of the defendant, the officers discovered two $100 bills and some keys. The officers then drove Towns approximately one block from his arrest allegedly to minimize the impact of his arrest on the ongoing surveillance. Sergeant Brannigan sat in the back seat of the car and pointed a shotgun at the defendant as he entered the car, but put it to his side as they drove away from the area. Immediately after the defendant entered the car, Sergeant Brannigan placed his hand on the defendant's chest in an attempt to discern whether the defendant was unduly frightened by his arrest. None of the officers physically abused Towns and they did not find him to be frightened or uncooperative.

        When they parked about a block away, the officers told the defendant that he had been arrested for a...

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