U.S. v. Gilbert

• Citation: 391 F.3d 882
• Decision Date: 09 December 2004
• Docket Number: No. 03-3365.,03-3365.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley GILBERT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

391 F.3d 882

UNITED STATES of America, Plaintiff-Appellee, v. Stanley GILBERT, Defendant-Appellant.

No. 03-3365.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2004.

Decided December 9, 2004.

Timothy M. Morrison (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Vilija Bilaisis (argued), Ludington, MI, for Defendant-Appellant.

Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

In May, 2003, a jury convicted Stanley Gilbert of being a felon in possession of a firearm and a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). That criminal statute is violated if the government demonstrates that: (1) the defendant has a prior felony conviction; (2) the defendant possessed a firearm or ammunition; and (3) the firearm or ammunition had traveled in or affected interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Allen, 383 F.3d 644, 647 (7th Cir.2004); United States v. Morris, 349 F.3d 1009, 1013 (7th Cir.2003). Only the possession provision was at issue in the trial. Because he had three previous convictions for violent felonies, the district court sentenced him under 18 U.S.C. § 924(e)(1) to 188 months on each count, to be served concurrently.

Gilbert raises a number of challenges on appeal, but the dispositive one concerns the admission at trial of pre-trial statements made to police officers by Gilbert's wife, Sherese Gilbert (hereinafter referred to as "Sherese" so as to distinguish her from the defendant Gilbert). Sherese invoked her marital testimonial privilege and refused to testify at trial. The court, however, admitted the taped conversation with the officers as well as its transcript into evidence. In admitting the conversation into evidence, the court held that it bore sufficient circumstantial guarantees of reliability. The court relied for its ruling on prior caselaw that held such statements were admissible under the residual exception to the hearsay rule in Federal Rule of Evidence 807 (formerly Fed.R.Evid. 804(b)(5)) if the declarant were unavailable as a witness and there were sufficient circumstantial guarantees of trustworthiness. In applying that rule, courts have required that circumstantial guarantees of trustworthiness must be present and that the declaration "must be `offered as evidence of a material fact,' be more probative of that point than any other evidence the proponent can procure through reasonable efforts, and serve both `the general purposes' of the Rules of Evidence and `the interests of justice.'" United States v. Bradley, 145 F.3d 889, 894 (7th Cir.1998), citing Fed.R.Evid. 804(b)(5)(A)-(C); Fed.R.Evid. 102; United States v. Ismoila, 100 F.3d 380, 393 (5th Cir.1996); United States v. Dent, 984 F.2d 1453, 1462 (7th Cir.1993); see also Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Since Gilbert's trial, however, the Supreme Court issued Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Addressing a similar situation in which a wife's out-of-court statements to a police officer were admitted at trial, the Crawford Court held that the admission of testimonial hearsay evidence in a criminal trial where the defendant has no opportunity to cross-examine the witness violates the Confrontation Clause of the Sixth Amendment. Id. at 1374. In light of that Supreme Court decision, the government acknowledges on appeal that the taped conversation was not properly admissible, and that its admission at trial violated Gilbert's constitutional rights under the Confrontation Clause. The government argues, however, that its admission was harmless. Therefore, the issue before us is whether it is clear beyond a reasonable doubt that a rational jury would have found Gilbert guilty even absent the admission of Sherese's statement. Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); United States v. Nance, 236 F.3d 820, 825 (7th Cir.2000). We therefore must consider the improperly admitted evidence in the context of the trial as a whole.

The firearm and ammunition that formed the basis for the felon in possession charge were discovered at Sherese's residence pursuant to a search warrant on November 26, 2002. According to testimony by Gilbert, he and Sherese separated in August, 2002. She later moved to the house at 615 N. Gray Street which she rented. Special Agent Susan Roehrig testified that the utilities and the phone at the new address were only in Sherese's name. The couple also shared some vehicles, including a blue Cadillac, which were registered at the old address. Gilbert visited Sherese at the Gray Street residence in order to see his five stepchildren.

The search warrant was issued as a result of an investigation of a prior incident that took place on November 20, 2002. On that date, Indianapolis police officers responded to a report of shots fired at 1015 N. Gale Street. At the scene, Rodney Myles spoke with the officers as an eyewitness. He testified at trial as to the events that night. Myles testified that he was the brother of Jesse Isaac, who was the ex-boyfriend of Gilbert's daughter.¹ He stated that there was a dispute between Jesse and Gilbert relating to Jesse's relationship with Gilbert's daughter.² Gilbert came to the Isaac house during the day of November 20, and spoke with Myles at that time. That was the first time Myles had met him. Myles described him at that time as "a pretty cool guy." Myles testified that he saw Gilbert again around 1:00 or 2:00 in the morning, in a blue Cadillac driving through the alleyway. Myles approached the car, and Gilbert asked for Jesse, but Myles informed him that Jesse was sleeping and that he should come back another time. Myles then saw Gilbert reach for a gun, and he stepped back. Gilbert drove off and fired into the air four times. Myles then contacted the police and officers were sent to the residence. After speaking with Myles, those officers recovered four shell casings from the area indicated by Myles. Although Myles did not know Gilbert's name at that time, his brother Jesse apparently identified him to the police based on Myles' description. Someone at the house — the testimony diverges on this — then led the police to the Gray Street address. The officers spoke with Sherese at that time, but neither Gilbert nor the blue Cadillac were at that residence.

On November 26, the police returned to Sherese's residence with a search warrant. Officers present for that search testified as to what transpired. In the course of that search, they found Gilbert in the doorway of the master bedroom unclothed. They located a firearm and ammunition in the house. The firearm, a .45-caliber Hi-Point pistol containing five rounds, was located in the master bedroom in a pouch on the floor between a dresser and a wall. The firearm could not be seen from the location where Gilbert was found, because the open door to the bedroom blocked the view of that area of the dresser, and because it was secreted between the dresser and the wall. The firearm was lawfully registered to Sherese. In a locked closet in another bedroom, they found the gun box for the Hi-Point, which contained instructions for the gun and a box of Fiocchi .45-caliber ammunition. That closet also contained female clothing. The key to that closet was located in Sherese's bedroom, the master bedroom in which the firearm was found, on her dresser in a pink and white box containing hair clips. In addition, four rounds of .32 Smith & Wesson RP ammunition were found on a dresser in the master bedroom.

At the time of that search, Sherese spoke with an officer, and a portion of that conversation was tape-recorded. The government sought admission of part of that tape and transcript at trial, which was granted by the district court. In those excerpts, Sherese stated that only two persons had access to the firearm, she and Gilbert. She further declared that Gilbert knew where the key to the closet was kept, and that on a number of occasions he had taken the gun out of the closet and removed the trigger lock. After the officers questioned her on November 20, she looked for the gun and it was not in the pouch in her room. She informed them that Gilbert had been at the house earlier that evening, and that the gun reappeared the next day after he had returned to the residence. Because Sherese invoked her marital testimonial privilege and refused to testify, Gilbert was unable to conduct any cross-examination regarding that testimony. Sherese attempted to recant the statements to the officers a few days after the...