U.S. v. Bernal, 93-3509

• Decision Date: 29 June 1994
• Docket Number: No. 93-3509,93-3509
• Citation: 28 F.3d 630
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexander BERNAL, also known as Alex Geronimo, also known as Geronimo Pascuales, also known as Alejandro Bernal, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 630

28 F.3d 630

UNITED STATES of America, Plaintiff-Appellee, v. Alexander BERNAL, also known as Alex Geronimo, also known as Geronimo Pascuales, also known as Alejandro Bernal, Defendant-Appellant.

No. 93-3509.

United States Court of Appeals Seventh Circuit.

Argued May 18, 1994.

Decided June 29, 1994.

Barry R. Elden, Asst. U.S. Atty., James J. Tharp (argued), Criminal Receiving, Appellate Division, Chicago, IL, for plaintiff-appellee.

Kevin E. Milner (argued), Law Offices of Kevin E. Milner, Chicago, IL, for defendant-appellant.

Before SPROUSE, ^* CUDAHY and KANNE, Circuit Judges.

PER CURIAM.

Alexander Bernal appeals his conviction of violating 18 U.S.C. Sec. 922(g) which prohibits a previously convicted felon from knowingly possessing a firearm. Bernal concedes that he has been previously convicted of a felony. It is also undisputed that two Chicago police officers searched him and found a loaded .25 caliber pistol in the pocket of his overcoat. He argues, however, that the district court erred in two rulings: refusing to suppress the evidence of his seized gun and refusing to dismiss the indictment on his asserted grounds of prosecutorial vindictiveness. Bernal contends principally that a search of his person violated the Fourth Amendment. He also brings a factually unsubstantiated claim that the federal prosecutor was motivated by vindictiveness in obtaining the indictment under which he was convicted. We affirm.

The incidents resulting in Bernal's conviction occurred within a brief period on November 15, 1991. He and his girlfriend, Terry Clark, were in a bar called "The Bend" on North Lincoln Avenue in Chicago, Illinois. Angered that another man in the bar was flirting with Clark, Bernal, under the influence of both alcohol and cocaine, borrowed a .25 caliber pistol from a friend and fired a shot into the floor. Bernal, ordered out by the bartender, exited the bar and entered a nearby restaurant called the "Hub."

After Bernal left the bar, the bartender locked the door behind him, telephoned the police and informed them of the incident. She described Bernal as a small Hispanic man wearing a black leather jacket or coat. Two patrol cars quickly responded. Upon their arrival, the bartender informed two police officers that Bernal was last seen heading north on Lincoln Avenue. Those patrolmen quickly told Officers Martinek and Dienethal that the suspect was headed north. A total of four policemen went in that direction and entered the Hub.

According to the officers' testimony, Bernal was standing in the restaurant, with his coat on, when they entered and he was the only patron who fit the bartender's description. Officer Dienethal identified himself, and Bernal turned around. Officer Martinek immediately recognized Bernal because he had arrested him on a previous occasion. The officers testified that when Bernal began to wave his arms, they grabbed them, and patted down the outside of his coat. They found the incriminating pistol.

Bernal related a somewhat different story. According to him, he had been in the Hub for ten to twelve minutes before the police arrived and there were a number of other people in the restaurant. He claims that he was seated in a booth with his coat off and, when he stood to pick up his order, he was confronted by the police. The officers then went over to the booth and grabbed the gun out of his coat pocket. No other witnesses testified as to what occurred during the search and arrest.

In any event, when the officers found the gun, Bernal was placed under arrest. He was subsequently indicted on a state charge of knowing possession of a firearm by a person previously convicted of a felony. The state prosecutor offered to recommend a five-year prison term in exchange for a plea of guilty. Despite the Cook County Circuit Judge's cautioning him of the potential ramifications of a rejection of the plea offer, Bernal refused to plead guilty. His case was later dismissed. A federal grand jury then indicted him for violating 18 U.S.C. Sec. 922(g). After a jury trial, Bernal was convicted on the federal weapons charge, and he brings this appeal.

Bernal claims that the police officers violated the ...