U.S. v. Groves, 05-2902.

• Citation: 470 F.3d 311
• Decision Date: 22 November 2006
• Docket Number: No. 05-2902.,05-2902.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel GROVES, Sr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 311

470 F.3d 311

UNITED STATES of America, Plaintiff-Appellee, v. Daniel GROVES, Sr., Defendant-Appellant.

No. 05-2902.

United States Court of Appeals, Seventh Circuit.

Argued January 13, 2006.

Decided November 22, 2006.

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Donald J. Schmid (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

David A. Wemhoff (argued), Botkin & Leone, South Bend, IN, for Defendant-Appellant.

Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Daniel Groves was charged in a two-count indictment under the "felon in possession" statute with possessing a firearm and possessing ammunition. See 18 U.S.C. § 922(g)(1). A jury convicted him on both counts. He challenges his conviction on the firearm count on the ground that the evidence was insufficient to demonstrate that the firearm traveled in interstate commerce. On the ammunition count, he faults the district court for denying his motion to suppress evidence obtained in a warrantless search of his apartment. He also complains of evidentiary errors and mistakes in calculating his sentence. This is one of those rare cases in which a defendant succeeds in demonstrating that the evidence was insufficient to prove an element of the crime. We therefore reverse in part, affirm in part and remand to the district court for further proceedings consistent with our opinion.

I.

At approximately 9:40 p.m. on July 5, 2004, South Bend resident Elton Chavez called 911 to report that gunshots were being fired from a building across the street from his residence. Chavez lived in Dismas House, a halfway house for drug addicts and felons. Daniel Groves, the defendant, lived across the street from Dismas House, in an apartment complex. The 911 call was recorded and was played for the jury. Chavez told the 911 operator, "There's a guy across the street shooting up a shotgun." He told the operator that the man aimed the gun at Dismas House and that the porch light was on at the building across the street. The operator asked Chavez if he knew who the man was and he replied, "No." The operator then said, "You don't know? Do you know if he lives there?" and Chavez replied, "I'm guessing." Chavez told the operator that he initially thought the blasts were fireworks but that he "bent down and looked underneath the tree and sure enough this guy's got a shotgun, cocking it, and he wasn't even aiming it at the sky, he was aiming it over towards our house." 911 Tr. at 1.¹ Although two other people (a female resident of Dismas House and her male visitor) were with Chavez on the porch of Dismas House, only Chavez claimed to have seen the gunman. The male visitor later testified that he could not see the shooter because of the darkness. All three ran into Dismas House after the second shot was fired.

South Bend police officers arrived quickly after the call was made. They first stopped to talk to Chavez who told them that the man with the gun was wearing black and that he fired the shots from the porch across the street where a porch light was on. At trial, he conceded that because it was dark, he could not tell what clothes the shooter was wearing, but that the clothing was black. He also acknowledged at trial that there was a tree blocking his line of vision from the porch of Dismas House to the porch of the building across the street, but maintained he could lean to the left and see the man with the shotgun. The distance between the two porches was approximately 220 feet. After talking to Chavez and the two people who had been with him when the shots were fired, the officers proceeded to the building across the street.

The first officer on the scene, Corporal Taylor, approached Groves, who was standing outside the apartment building wearing a white shirt and dark pants. Taylor asked Groves if he had seen anyone shooting a gun. Groves denied seeing a gun and told Taylor that he had been shooting off fireworks. Taylor asked Groves where his gun was and Groves responded that he never had a gun. In response to Taylor's questioning, Groves pointed out the porch to his apartment and admitted he was felon. When Taylor then asked Groves if the police could search his apartment, Groves said "No" and told the officer to get a warrant. Taylor testified that Groves was "adamant that we could not go in the apartment" and so the officers began to search in the grass for evidence of discharged firearms. Taylor found three 20-gauge shell casings in the grass near the porch. Taylor again approached Groves, told him he had found the shell casings and asked again if he could search the apartment. According to Taylor, Groves "adamantly said no, and he said to go get a search warrant." The officer then returned to Dismas House, showed Chavez the three shell casings, and said, "Yeah, you're right. He's shooting a shotgun."²

The officers then applied for a warrant to search Groves' apartment but a federal magistrate denied the application. On July 21, a few weeks after the incident, police officers returned to Groves' apartment building. Special Agent Lucas Battani, a South Bend police officer and member of the Project Disarm Task Force, interviewed Darlene Smith, another resident of the building that morning. According to Agent Battani, Smith told the officers that Groves lived in Apartment 3 with Shaunta Foster, and that Foster had lived there for approximately five months. Agent Battani also asked Smith about Groves' work schedule and determined that he would be at work later that day. Agent Battani returned to the apartment building at 1:30 p.m. with two other members of Project Disarm, including a local officer from the Elkhart Police Department and a federal special agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). The trio knew from the interview of Smith that Groves would be away at work at that time. Agent Battani had also researched Shaunta Foster in the interim and had determined that a woman by that name was subject to a body attachment warrant. He had not determined whether the Shaunta Foster living with Groves was the same Shaunta Foster associated with the warrant.

The officers went to Groves' apartment that afternoon to attempt to obtain consent to search from Foster, having been refused by both Groves and a federal magistrate. Both Battani and Foster testified at a suppression hearing; although there were some points of agreement, there were also several important differences in their stories about what happened that day. We begin with Agent Battani's account. Agent Battani knocked on Groves' door and when Foster answered, he asked her to step outside to speak with the three officers. Although he was accompanied by two other officers, only Agent Battani spoke to Foster. He asked her if she lived in the apartment and she replied that she did not, that she sometimes stayed at the apartment but did not reside there. Battani asked if there was anyone else in the apartment and Foster replied that her daughter was there. Because Smith told Battani that Foster lived in the apartment, he persisted and asked Foster how long she had lived there, and she replied that she had moved in around February 14th of that year (approximately five months earlier). Foster told Battani that Groves owned the apartment and that he was her boyfriend. In response to questions from Battani, Foster told the agents that she had full access to the apartment and often cleaned it for Groves. When Battani asked for Foster's consent to search the apartment, Foster balked and told Battani that, without first talking to Groves, she did not believe she had the authority to consent to a search. Battani told her that the consent was not between himself and Groves; it was between himself and Foster. He then showed her a consent form and read it to her line by line, asking her at the end of each paragraph if she understood that part of it. Each time, Foster indicated she understood. When he finished reading the form, Battani again asked Foster to consent to a search. This time, Foster agreed to do so and signed the form.

Agent Battani explained that they would be looking for firearms and ammunition and asked Foster to lead them into the apartment. As she walked up the stairs, she told Battani that she had something for him. When they went into the apartment, Foster went into the bedroom and returned with a plastic bag containing marijuana. Foster told the agents that the marijuana was hers and that Groves did not use any type of narcotics. Foster and her daughter sat at the kitchen table with Battani while the other two agents searched the apartment. At times, the searching agents asked Foster questions about the apartment. For example, they asked her which nightstand in the bedroom was hers and whether she had access to both nightstands. As the search proceeded, Foster told Battani that she had never seen firearms in the apartment but that she had seen bullets on Groves' nightstand. From a drawer in Groves' nightstand, the officers recovered a magazine containing five .22 caliber bullets that appeared to Foster to be of the same type she had seen earlier. The officers also recovered a few shotgun shells and a bill in Foster's name for a telephone line at Groves' apartment. As the officers left the apartment, Battani told Foster that there was a body attachment warrant for her. Later, the officers contacted the local school district and determined that Foster's daughter was registered at school using Groves' address as her home address.

Groves was arrested and charged with being a felon in possession of a firearm and being a felon in possession of ammunition. Groves moved to suppress the ammunition discovered in his nightstand, arguing that Foster had neither the actual authority nor the apparent authority to consent to a search of the apartment. The district court held a hearing at which Agent Battani...