U.S. v. Dent
| Decision Date | 02 April 1993 |
| Docket Number | 91-3114,Nos. 91-3113,s. 91-3113 |
| Parties | 38 Fed. R. Evid. Serv. 8 UNITED STATES of America, Plaintiff-Appellee, v. Charles DENT, also known as William Brown, and Ivy T. Tucker, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Terry M. Kinney, Asst. U.S. Atty. (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.
Kevin P. Connor (argued), Judith A. Scully, Chicago, IL, for Ivy T. Tucker.
Carol A. Brook, Mary M. Rowland (argued), Office of Federal Public Defender, Chicago, IL, for Charles Dent.
Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.
This appeal arises from the convictions of the defendants Charles Dent and Ivy Travis Tucker for being felons in knowing possession of a firearm in violation of Title 18, United States Code, Section 922(g). Several evidentiary issues are raised in addition to a challenge of the government's recall of a witness at trial in response to notes from the jury before the close of evidence. Defendant Tucker further challenges the enhancement of his sentence by allegedly constitutionally invalid convictions. Both defendants were found guilty at a jury trial in February 1991.
This case began with a simple traffic stop in a parking lot in Lansing, Illinois, on January 31, 1989. A Lansing police officer named Brad Borys testified that he saw the driver of a car run a stop sign. Officer Borys activated his lights and pulled the car over. There were two people in the car, a 1983 Datsun, the two defendants in this case. Defendant Tucker was driving the car, and defendant Dent was seated in the front passenger side of the car. The officer parked behind the Datsun, and the officer got out of his car as the defendants got out of their car. The officer asked the driver, Tucker, for his driver's license, which he did not have. The driver then gave the officer a false name. Dent, the passenger, also gave the officer a false name. During this time, the officer patted both defendants down. The car did not have any license plates but had a license applied for sticker in the rear window. Officer Borys wrote down the car's vehicle registration number ("VIN") from the sticker in the rear window and compared it with the VIN number on the driver's side of the car's dashboard.
At this point, the defendants' version of the facts diverges from the government's version. The district court at a suppression hearing held on January 16 and 18, 1991, made findings of facts consistent with the government's position. The district court found that as Officer Borys was comparing the car's VIN number that he had written down from the sticker in the rear window with the number on the dashboard, he saw a gun protruding from underneath the driver's seat of the car. Officer Borys opened the unlocked car door and retrieved the gun, which was loaded, and placed in it in his back pocket. At about this time a back-up patrol unit which had been previously called arrived at the scene. Officer Borys asked the arriving officer, Bruce H. Peterson, to watch the two men while he searched the interior of the car. After searching the car for approximately five to ten minutes and finding nothing more, Officer Borys told Officer Peterson that he had recovered a gun. Officer Borys did not tell Officer Peterson that he had found a loaded gun when Officer Peterson first arrived, nor did Officer Borys handcuff the defendants or tell them to get down on the ground or raise their hands in the air. After the second search of the car, defendants were placed under arrest. Tucker was searched and found to be carrying $1,700. The car was towed to the Lansing police station. Two trench coats, one nylon half-stocking, and one black mask or head covering item were recovered from the inventory search of the car at the station. The only item admitted into evidence at trial was the black mask or head covering item; the trench coats were not kept and the nylon half-stocking was lost.
Defendants' version of the facts is different at several significant points. Defendants contend that Officer Borys did not see the gun when looking at the VIN number through the front window. They both testified at the suppression hearing that the car was locked and that the officer searched Dent for the car key. They testified that Officer Borys retrieved the gun only after an extensive search of the car. Officer Borys then said to Officer Peterson something like "look what I found." Officer Peterson testified that he did not know that Officer Borys had found a gun until five or ten minutes after he arrived.
On July 25, 1990, a grand jury returned a one-count indictment charging the defendants with being felons in knowing possession of a firearm.
Defendants moved to suppress the evidence found as a result of the traffic stop. Defendants contend the evidence was found illegally. The government conceded at the suppression hearing that if Officer Borys did not see the gun sticking out from under the seat in plain view as he looked through the front window, the subsequent search was illegal and the gun should be suppressed. The district court denied the motion to suppress and found that the gun was seen by the officer in plain view as the officer looked through the front window. The district court believed Officer Borys' testimony but found that parts of defendants' testimony were unbelievable.
Several evidentiary issues raised in motions in limine prior to trial are among the issues on appeal. First, Dent moved to exclude his plea of guilty to a misdemeanor state claim for unlawful use of a weapon which arose out of the same facts. In the alternative, Dent moved to admit the portion of the state court transcript indicating the plea was against the advice of Dent's state court lawyer. The district court denied Dent's motion and granted the government's motion to bar testimony by Dent's lawyer.
Dent and Tucker moved to exclude the evidence of the masks and trench coats found in the car under Rule 403 of the Federal Rules of Evidence. The district court denied their motion and held the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
The government moved to admit the grand jury testimony of Roger Elayyan, who was unavailable to testify at trial, under Rule 804(b)(5) of the Federal Rules of Evidence. The district court held the statement was relevant and had the required guarantees of trustworthiness for admission. The court further found that admission of the testimony would not violate the defendants' right to confront witnesses under the Sixth Amendment of the United States Constitution.
The jury trial for the defendants began February 20, 1991, and lasted two days. After the judge dismissed the jury for the day near the end of the government's case, the judge received a note from one of the jurors. This note read: Supp.Rec. vol. II at 147. The judge received a second note apparently from the same juror. The second note read: "Who is the gun registered to?" Supp.Rec. vol. III at 169.
The district court and both parties agreed on how to respond to the questions. When the trial began the next day, the court told the jury:
One of the jurors wrote two notes asking four questions concerning the bill of sale exhibit and the gun exhibit, both of which have been received in evidence. It would be best not to directly respond to those individual questions at this time. All of the evidence is not in. The jury has not heard the closing arguments or the instructions by the Court, which will give more information on those, as well as other matters, as they may relate to the decisions to be made, and should help clarify the matters involved. So, with that, that will be the response at this time.
Supp.Rec. vol. III at 186-87. The government then recalled Agent Laurie Jolley to the stand. Both defendants objected to the government recalling this witness to address the juror's questions. The district court overruled their objection because the government had not closed its case in chief, the court and the parties had not agreed that there could be no additional evidence after the juror's questions, and it felt obligated to ensure that the jury fully understood the matters involved.
The recalled witness, Agent Jolley, gave new testimony concerning the gun and the car. Agent Jolley testified about gun registration requirements in Chicago, Illinois, and Racine, Wisconsin. She testified about the different people to whom this gun was sold according to records that were kept and information from witnesses she interviewed. She then testified that the certificate of title for the car showed its mileage was 119,343 miles. When Agent Jolley first testified, she simply testified that the gun was operable. At that time, she also read into evidence the grand jury testimony of Roger Elayyan.
The jury returned guilty verdicts against Dent and Tucker. Both defendants received enhanced sentences under Title 18 of the United States Code Section 924(e)(1) because each defendant had three previous violent felony convictions. The district court gave them each a fifteen-year sentence, the mandatory minimum under the sentencing guidelines. Tucker appeals the use of two of his prior convictions for his enhanced sentence. He argues that two of the guilty pleas were neither voluntarily nor intelligently made...
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