U.S. v. Kelly

• Citation: 14 F.3d 1169
• Decision Date: 20 January 1994
• Docket Number: No. 92-1416,92-1416
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John W. KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1169

14 F.3d 1169

UNITED STATES of America, Plaintiff-Appellee, v. John W. KELLY, Defendant-Appellant.

No. 92-1416.

United States Court of Appeals, Seventh Circuit.

Submitted Jan. 21, 1993.

Decided Jan. 20, 1994.

Michael A. Thill, Andrew B. Baker, Jr., Asst. U.S. Attys., Dyer, IN, for U.S.

George A. Sullivan, Jr., Bloomington, IN, for John W. Kelly.

Before COFFEY and KANNE, Circuit Judges, and HOLDERMAN, District Judge. ^*

HOLDERMAN, District Judge.

John Kelly was found guilty by a jury of two narcotics offenses and two firearms offenses. Kelly challenges his convictions on several grounds, including allegedly improper evidentiary rulings by the district court judge and alleged violations by the prosecution of its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After submitting their respective briefs, the parties waived oral argument. We affirm.

PROCEDURAL HISTORY

The four-count indictment filed against defendant-appellant Kelly alleged that he committed the following crimes on November 3, 1988:

Count One--knowing and intentional distribution of cocaine (21 USC Sec. 841(1)(a));

Count Two--knowing and intentional possession of heroin and cocaine with intent to distribute (21 USC Sec. 841(1)(a));

Count Three--possession of a firearm by a convicted felon (18 USC Sec. 922(g)(1); 18 USC Sec. 924);

Count Four--possession of a firearm in relation to a narcotics offense (18 USC Sec. 924(c)(1)).

District Judge James Moody presided over the two-day jury trial. At the conclusion of that trial, the jury found Kelly guilty as charged. Kelly was scheduled to be sentenced on March 20, 1991, but sentencing was postponed on a motion by the government to allow continuing negotiations between the government and Kelly to take place regarding Kelly's cooperation in connection with other criminal investigations. The government stated in its motion: "To date, the defendant is cooperating, and it is expected that his cooperation will take several months to complete." (Appellant's Brief, Appendix, pp. A13-A14.)

Kelly was originally scheduled to appear for sentencing on June 21, 1991, but he failed to appear and a warrant for his arrest was issued. Kelly was apprehended and brought before the court on December 27, 1991. Kelly was ordered detained pending sentencing; the sentencing hearing was ultimately held

on February 6, 1992. Kelly was sentenced to serve eighteen months in prison on each of the first three counts, concurrently, and to serve five years in prison on count four, this sentence to run consecutively to the sentences imposed on the first three counts.

THE FACTS

In 1988, John Kelly was an owner and proprietor of Kelly's Auto Repair located in Gary, Indiana. During the months of July, August and September 1988, Officer Diaz ("Diaz") of the Gary Police Department, working undercover, made several narcotics purchases at Kelly's Auto Repair from a man known only as "Bumblebee".

On November 3, 1988, Diaz phoned Kelly's Auto Repair and asked to speak with "Bumblebee." Diaz was told "Bumblebee" was not available, so Diaz asked to speak with "John." Diaz had seen Kelly at the shop during prior narcotics purchases, and Kelly had been introduced to Diaz as "John" by "Bumblebee." When Diaz informed Kelly that Diaz was to pick up a package that "Bumblebee" had told him to pick up, Kelly invited Diaz to the shop. Diaz testified that Kelly sold him a "pony pack" of white powder, which Diaz paid for with bills whose serial numbers had been recorded. Diaz testified Kelly was carrying a 9 mm. pistol at the time of the purchase. No other officer was in a position to observe the transaction between Diaz and Kelly.

Shortly after the buy, Diaz signalled other law enforcement officers to execute a previously planned raid on Kelly's Auto Repair shop. Twelve police officers, with badges in plain view, pulled up in marked and unmarked vehicles and entered the shop in group formation. ¹ The officers secured the area within moments of their entrance. Officer Green confiscated a loaded 9 mm. pistol from Kelly. Other officers confiscated the three bills which Diaz had given to Kelly as payment for the "pony pack". The officers confiscated an additional "pony pack," additional cash, a shotgun, and scales from the shop's office, three cocaine rocks from the office's safe, and a bottle cap filled with heroin in a trailer parked in a lot adjacent to the shop.

The officers testified to the sealing of the evidence seized in the raid and to their procedures for storing and analyzing the evidence. Diaz testified to the procedure he followed as to the "pony pack" he had purchased from Kelly, which he inventoried separately from the evidence seized in the raid. Diaz took that "pony pack" and the other seized evidence to the Indiana State Police Laboratory. Chemical analysis indicated the powder in the "pony pack" purchased from Kelly was cocaine, and the other seized narcotics included heroin and cocaine.

A copy of the search warrant that Diaz had obtained to enable him to search Kelly's Auto Repair shop and an inventory of the evidence seized in the raid were apparently never provided by the prosecution to Kelly or his defense counsel before the trial. Further, some of the seized evidence was lost prior to trial.

At trial, Kelly testified on his own behalf and denied that he sold narcotics to Diaz. Kelly testified he was unaware that any narcotic drugs were present at the shop or were being sold at the shop. Kelly also presented witnesses who testified that Kelly was known as "Walt," not "John," and that no call for "John" had been received on November 3, 1988. Kelly maintains he only put on the gun, which he testified belonged to a third party, because he believed the plainclothes officers were robbers. Kelly maintained that, on learning the true identity of the individuals, he immediately turned over the gun. Kelly also testified that he had limited access to the office safe, while numerous other individuals used it freely.

APPELLANT KELLY'S ARGUMENTS

On appeal, Kelly makes the following arguments:

1. the trial court erred in admitting evidence regarding items allegedly seized 2. the trial court erred in admitting evidence regarding material allegedly seized from appellant's premises, because the government failed to establish a valid chain of custody, failed to produce certain evidence in court, and failed to explain the loss of the evidence;

from appellant's premises, because the search warrant was defective in both its execution and return under Rule 41 of the Federal Rules of Criminal Procedure;

3. appellant was deprived of a fair trial because the government failed to disclose that key evidence had been lost in sufficient time to enable appellant and his counsel to prepare an adequate defense;

4. the trial court incorrectly applied the sentencing guidelines by failing to provide a downward departure in acknowledgment of appellant's assistance and cooperation with the government.

ANALYSIS

Standard of Review

The burden on a defendant-appellant in challenging the evidentiary rulings of the trial court is an extremely heavy one. United States v. Shukitis, 877 F.2d 1322, 1327 (7th Cir.1989). Trial court decisions as to the admissibility of evidence require special deference from a reviewing court, and will only be reversed in the case of an abuse of discretion. Id.; United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989). Kelly has not met this burden.

Trial Court Did Not Err by Admitting the Seized Evidence

Kelly first argues that the items seized during the raid should not have been admitted in evidence because the search warrant was defective in its execution and return under Rule 41(d) of the Federal Rules of Criminal Procedure. ² Failure to comply with the procedural requirements of Rule 41(d), however, has generally not been held to constitute a deprivation of rights under the fourth amendment which requires exclusion of the seized evidence. United States v. Stockheimer, 807 F.2d 610, 613 (7th Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 506 (1987). A violation of Rule 41(d) can lead to exclusion, however, when there is a showing of prejudice, or an intentional and deliberate disregard of the rule. Id. Ministerial violations of Rule 41(d) do not warrant suppression of the evidence. United States v. Harrington, 504 F.2d 130, 134 (7th Cir.1974). See also, United States v. Hornick, 815 F.2d 1156, 1158 (7th Cir.1987) ("[F]oibles in the administration of Rule 41 are not grounds for exclusion."). "[I]t is difficult to anticipate any violation of Rule 41, short of a defect that also offends the Warrant Clause of the fourth amendment, that would call for suppression." Hornick, 815 F.2d at 1158.

Additionally, we note the strict requirements of Rule 12(b) of the Federal Rules of Criminal Procedure. ³ When the Kelly maintains that Rule 41 was not complied with as he never received a copy of the warrant or a receipt for the property taken. Kelly further points out that the requirement that the return be verified was also not met, as Diaz admitted he did not actually perform the search or collect the evidence, as was represented on the return. (Tr. pp. 152-155.) Kelly further contends that none of the officers who testified indicated that they had served a copy of the warrant or return on Kelly. (Tr. pp. 153, 215, 240, 259, 285.) Kelly argues that there was clearly prejudice in this case, as the indictment came 21 months after the search, resulting in a considerable delay in giving him notice of the exact charges against him. Further, Kelly maintains that the police did not follow the "spirit" of Rule 41, given that the seized evidence was mislabelled and lost. Kelly asserts that the violation of Rule 41 prevented him from holding the police accountable for what was taken.

                defense does not seek to suppress the evidence as required by Rule 12(b)(3) before the

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