U.S. v. Lewis, 89-1337

• Decision Date: 14 August 1990
• Docket Number: No. 89-1337,89-1337
• Citation: 910 F.2d 1367
• Parties: 30 Fed. R. Evid. Serv. 1165 UNITED STATES of America, Plaintiff-Appellee, v. Wilbert LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1367

910 F.2d 1367

30 Fed. R. Evid. Serv. 1165

UNITED STATES of America, Plaintiff-Appellee, v. Wilbert LEWIS, Defendant-Appellant.

No. 89-1337.

United States Court of Appeals Seventh Circuit.

Argued Jan. 18, 1990.

Decided Aug. 14, 1990.

Thomas M. Durkin, Asst. U.S. Atty., Office of the U.S. Atty., Joan G. Fickinger, Asst. U.S. Atty., Office of the U.S. Atty., Cr. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Daniel L. Franks, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

BAUER, Chief Judge.

Wilbert Lewis appeals his conviction and sentence for knowing possession of a firearm by a convicted felon in violation of 18 U.S.C.App. Sec. 1202(a)(1). ¹ Lewis contends that the trial court improperly refused to suppress certain government evidence, wrongly allowed prejudicial evidence of his gang membership to be presented to the jury, and improperly enhanced his sentence by considering improper and inaccurate information. We believe the trial court proceeded properly in each instance and, therefore, affirm.

I.

The events in question took place in Chicago, Illinois, at around 10:00 pm on the evening of November 3, 1986. That night Wilbert Lewis was driving northbound on Francisco Street along with his brother Tyrone Lewis. Three Chicago police officers, Kriston Kato, Anthony Zdziarski and John O'Callaghan, were on patrol that evening in an unmarked squad car as part of a gang crimes unit. As the police car headed southbound on Francisco past Lexington Street, the officers saw the Lewis' car drive through a stop sign. The officers made a U-turn and followed the car as it headed north on Francisco past Flournoy Street. With the police in pursuit, Lewis drove through a second stop sign, turned right on Harrison Street, and then pulled over to the side.

As the officers approached the passenger side of the Lewis' car, Officer O'Callaghan saw what looked like a shotgun or rifle under the front seat. Searching the car, the police found a loaded sawed-off shotgun and a loaded .38 special caliber revolver, both under the front seat. Under questioning from Officer Kato, Lewis admitted that the car was his and that he did not have a driver's license. Both Lewis and his brother Tyrone were then arrested and read their Miranda rights.

The police issued two traffic citations to Lewis: one for his failure to stop at the intersection of Lexington and Francisco, a second for failing to stop at Francisco and Harrison. (There actually was no stop sign at Lexington and Francisco, but more on this later.) The rest of the case was referred to federal prosecutors for charges relating to the two firearms.

The Special May 1987 Grand Jury returned a one-count indictment against Wilbert Lewis on February 16, 1988, for knowing possession of firearms following conviction for a felony in violation of 18 U.S.C.App. Sec. 1202(a)(1). The case was then set for trial before Judge James B. Zagel.

Prior to trial, Lewis moved for the suppression of the evidence gained from the search of his car, namely the two guns at issue. Lewis contended that because there was no stop sign at the corner of Lexington and Francisco, the stop by the police officers that evening was invalid. Therefore, Lewis argues, the warrantless search of the inside of his car was in violation of his rights under the fourth amendment. Following a hearing, Judge Zagel denied the motion. He noted that, although the citation for Lewis' failure to stop at Lexington and Francisco was in error, this did not end the matter. As Judge Zagel stated:

I do believe there were stop sign violations at both Flournoy and Harrison.... Moreover, the fact that flashing lights are behind you does not excuse, as I read the state law, the failure to stop at a stop sign. In fact, the prescribed method for dealing with flashing lights behind you, as I understand the state rules of the road, is to pull as far over to the right as you can and stop.... I do find that the stop signs at Flournoy and Harrison were violated, and that gave reasonable grounds to make the traffic stop.

Following this denial of defendant's motion to suppress, a jury trial was held. At that trial, over defense counsel's objections, the government introduced evidence of Tyrone and Wilbert Lewis' gang membership. Lewis sought to suppress this evidence on the grounds that its prejudicial effect substantially outweighed its relevancy. The government, however, argued that the gang membership was central to demonstrating that the Lewis brothers were involved in a "joint venture" and thus both in possession of the firearms. Judge Zagel denied Lewis' motion to suppress and allowed the gang related information to be presented to the jury. On November 18, 1988, Lewis was found guilty and convicted of the offense charged.

The district court held a sentencing hearing on February 8, 1988. At that hearing, the government introduced evidence of Lewis' four prior convictions in order to trigger the enhancement provisions under 18 U.S.C.App. Sec. 1202(a). These included a July 1978 conviction for burglary, a December 1977 robbery conviction, a December 1977 conviction for burglary, and a May 1987 conviction for armed robbery. The government presented the fingerprint and information cards taken from Lewis' March 1988 arrest and the fingerprint impressions from each of Lewis' prior convictions. A fingerprint expert then testified that impressions were for the same individual: Wilbert Lewis. An agent for the Bureau of Alcohol, Tobacco and Firearms, Tim Bartels, also testified that the documents for each of the four state court convictions were consistent with Lewis' criminal history as recorded by the Chicago police department. The government did not present, however, any witnesses with personal knowledge of Lewis' prior convictions.

Judge Zagel found that, despite the unusual nature of the evidence, the government had met its burden of producing sufficient material to prove Lewis' prior convictions by clear and convincing evidence. Judge Zagel acknowledged that prior convictions were customarily demonstrated by witnesses with personal knowledge of the earlier cases. Here, however, the court was satisfied that the government's essentially uncontested evidence, although circumstantial, was accurate and dispositive. In reaching this conclusion, Judge Zagel also stated that he was relying in large measure on Lewis' pro se motion, filed prior to sentencing, requesting the suppression of his prior convictions because of constitutional errors in the trials. Judge Zagel stated that the motion signed by Lewis was an admission of these convictions and erased any doubt for the court about the accuracy of the government's circumstantial evidence. Thus, the court imposed the mandatory 15-year sentence required for repeat offenders under the enhancement provisions of Sec. 1202(a).

II.

On appeal, Lewis raises three issues. First, he contends that the district court improperly refused to suppress the evidence gained from the search of his car. Second, he contends that prejudicial evidence of his membership in a Chicago street gang was wrongly presented to the jury. And finally, he argues that the government failed to demonstrate his prior convictions by clear and convincing evidence and therefore the enhancement provisions were improperly applied to his sentence. We will consider each of these issues in turn.

A.

The fourth amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This guarantee, however, does not preclude all searches and seizures, but only those that are unreasonable. Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669 (1960); see also United States v. Denney, 771 F.2d 318, 320 (7th Cir.1985). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court approved the use of brief investigative stops by police officers provided the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. See also United States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir.1989). The detention of a motor vehicle for a traffic violation constitutes this type of permissible intrusion based on a reasonable suspicion. As the Tenth Circuit has stated:

To stop a motor vehicle, one must have "at least articulable and reasonable suspicion that ... either the vehicle or an occupant is ... subject to seizure for violation of the law." Delaware v. Prouse, 440 U.S. 648, 663 [99 S.Ct. 1391, 1401, 59 L.Ed.2d 660] (1979). Thus, a traffic detention will certainly be justified if probable cause for the seizure does in fact exist, whether or not a traffic court does or would find the person guilty of the alleged infraction.

Cf. United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985).

United States v. Neu, 879 F.2d 805, 808 (10th Cir.1989) (emphasis in original).

Lewis contends, however, that because there was no stop sign at the corner of Lexington and Francisco, as his traffic citation erroneously indicated, there was no reasonable basis for the traffic stop. Thus, he argues, any evidence discovered after this stop, namely the two firearms, should have been excluded from his trial as the product of violations of his rights under the fourth amendment. We do not agree with his characterization of the events.

At the suppression hearing, Judge Zagel determined that although Lewis' traffic citation was in error, there was no doubt that Lewis had run a stop sign. Thus, he ruled, the stop was valid. In reviewing this determination, we note that we will not overturn the district court's findings of fact following a suppression hearing unless those findings are clearly erroneous. See United States v....