U.S. v. Lloyd

• Decision Date: 05 December 1995
• Docket Number: No. 94-3665,94-3665
• Citation: 71 F.3d 1256
• Parties: 43 Fed. R. Evid. Serv. 505 UNITED STATES of America, Plaintiff-Appellee, v. Willie E. LLOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1256

71 F.3d 1256

43 Fed. R. Evid. Serv. 505

UNITED STATES of America, Plaintiff-Appellee, v. Willie E. LLOYD, Defendant-Appellant.

No. 94-3665.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1995.

Decided Dec. 5, 1995.

Barry Rand Elden, Chief of Appeals, Sergio Acosta (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for U.S.

John A. Meyer, Chicago, IL, Standish E. Willis (argued), Chicago, IL, for Willie E. Lloyd.

Before BAUER, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

A federal grand jury indicted Willie E. Lloyd of being a felon in possession of a firearm, a 9mm Ruger semi-automatic pistol, in violation of 18 U.S.C. Sec. 922(g)(1). Lloyd filed a pre-trial motion to quash the warrant authorizing the search of his person and apartment; the motion was denied. Lloyd was convicted before a jury and sentenced to a term of ninety-six months imprisonment, to be followed by a three year term of supervised release, and ordered to pay a special assessment of $50. Lloyd appeals his conviction as well as the denial of his motion to quash the warrant. We AFFIRM.

I. FACTUAL BACKGROUND

On March 6, 1994, Detective Anthony Wojcik of the Chicago Police Department ("CPD") received information from a confidential informant ("CI") that Willie E. Lloyd was in possession of two handguns. Lloyd and the CI were members of the Vice Lords, a Chicago street gang, and Lloyd was the leader of the faction known as the Unknown Vice Lords. The CI, who belonged to the Conservative Vice Lords, informed Wojcik that late in the evening of March 5, he met Lloyd in an apartment on West Jackson Street in Chicago, Illinois. He described the building as a "brown brick, six-flat unit on the southeast corner of Jackson and Keeler," and informed him that the apartment was on the first floor, on the west side of the building. The CI also told Wojcik that the door to the apartment was bordered in white stone.

While the CI was in the flat with Lloyd, the defendant displayed two black handguns to the CI: a 9mm Ruger semi-automatic pistol which was loaded as well as a 9mm Glock semi-automatic pistol, also loaded. ¹ When Lloyd exhibited these firearms, he stated that he kept them in the apartment for "security purposes." After showing the CI his firearms, Lloyd placed them on a shelf in the closet of the rear bedroom, located directly off the kitchen.

After learning this information, Detective Wojcik (accompanied by the CI) drove to the apartment and observed the building at the southeast corner of Jackson and Keeler which matched the description given by the informant. Wojcik also had the CI point to the windows of the defendant's apartment. The CI thereafter identified Willie Lloyd from an array of photographs. The detective ran a records check on Lloyd and discovered that he had been convicted of second degree murder and aggravated burglary in Iowa in 1973, as well as having been twice convicted in Chicago of unlawful use of a weapon by a felon (1989 and 1990).

Based upon this information, the officer prepared an affidavit in support of a search warrant and appeared with the CI before a Cook County Circuit Judge who found that there was probable cause to believe that Lloyd was a felon in possession of a firearm and issued the warrant for the search of Lloyd's person and the first floor west apartment in the building. The warrant was executed by ten officers of the CPD and Agent Marianos of the Federal Bureau of Alcohol, Tobacco, and Firearms at approximately 10:15 p.m., on the evening of March 6, 1994.

At trial, Lt. John Farrell testified that he led several CPD officers and Agent Marianos to the building identified in the warrant, and observed an individual in the front room of the west apartment on the first floor. That person then disappeared from view and Farrell heard a male voice from within the flat shouting "Five-O." ² Farrell stated that he and the officers proceeded to the door to the first floor west apartment, and that when he arrived at the door, he "pounded on the door and ... yelled, 'Police officers. Open up. We have a search warrant.' " When there was no response, Farrell ordered Sgt. Edward Mingey to open the door with a sledge hammer.

Lt. Farrell and Sgt. Mingey testified that after the forcible entry into the apartment, they observed Lloyd standing in the rear of the flat, with a "dark colored" firearm in his right hand. As Farrell hollered "He's got a gun," Lloyd ran into the bedroom off the kitchen, and closed and dead-bolted the door. Lt. Farrell broke down the door and upon entry witnessed Lloyd, standing near a window on the west wall of the bedroom, throw a gun out through a broken window with his right hand. He immediately placed Lloyd under arrest.

While Farrell, Mingey, and a few other officers were gaining access to the apartment, CPD officers Lawrence Knysch and Victor Rodriguez stood on the west side of the apartment building. At trial, Knysch and Rodriguez asserted that the area around the apartment building was well illuminated with street lights as well as from light coming through a window in the west apartment on the first floor. The officers also testified that they heard their companion officers enter the apartment, followed by a lot of noise and commotion. Knysch stated that while he was on the outside detail some twenty five feet away from the window, he witnessed the defendant Lloyd pull back a shade, bang on the window above them with a gun in his right hand, break the glass, and throw out the gun. Rodriguez testified that he was approximately fifteen feet from the window, and that he was positive that he saw Lloyd throw the firearm from the window.

Knysch and Rodriguez retrieved the loaded 9mm Ruger semi-automatic handgun, and Rodriguez immediately yelled up to the officers inside the apartment that he and Knysch had recovered the Ruger. Farrell stated that he then conducted a pat-down search of Lloyd, as the defendant stated: "You got me. You got me. My brothers should have been out there."

While Lt. Farrell was arresting Lloyd, Sgt. Mingey found Shean Fisher (also known as Shean Woods) and Che Williams laying on the floor in the middle bedroom of the apartment. When Officer Rodriguez searched the closet of this bedroom, he discovered a third weapon, a loaded .25 caliber Lorcin handgun under some clothes. At the time of the search, the following individuals were also present in the apartment: Renee Fitzgerald and Keith Melton, Kim Taylor, ³ Ms. Taylor's six children, and Mookie Lloyd, the defendant's three year old son.

The government called Fisher, who was seventeen years of age at the time of his arrest, to testify at trial. He stated that Lloyd was the chief of his street gang, the Unknown Vice Lords, and that he and Williams, then sixteen years old, were Lloyd's security guards on the night of his arrest. According to Fisher, their duties included watching the apartment "to make sure nothing or no one don't come through there," protecting Lloyd from rival gang members, and to warn him if the police were approaching. As security guards, Fisher and Williams were positioned near the front door of the apartment, and Fisher stated that they were usually armed. At the time of Lloyd's arrest, Fisher was carrying the .25 caliber Lorcin, but Williams, who according to Fisher ordinarily carried the Ruger while on guard duty, was unarmed.

Fisher stated to the court that as he observed the police approaching the apartment building, Williams began shouting "Five-O!" The guards then ran to the back bedroom to warn Lloyd that police officers were in the process of surrounding and entering the building. Fisher stated that he handed the Lorcin to Williams, who threw it onto the floor in the closet in the middle bedroom. Fisher and Williams then laid down and remained on the floor in the room until they were discovered by Sgt. Mingey. Fisher stated that Lloyd had shown him how to operate the Ruger two days earlier.

The prosecution also called Officer Michael Cronin to testify. Cronin had been employed by the CPD for 23 years, and spent the last thirteen years of his tour of duty in the Gang Investigations Section. He had been assigned to the west side area in the city of Chicago for the last ten years, and stated that he was familiar with both Lloyd and the Vice Lords, including the defendant's faction, the Unknown Vice Lords. During the time Cronin was investigating the Vice Lords, he testified that he had occasion to speak with Lloyd, who informed the officer that he was the leader of the Unknown Vice Lords. Cronin further stated that he had previously observed Lloyd accompanied by fellow gang members acting as "security guards," and that within the year before the defendant's arrest, there were two separate attempts on Lloyd's life from members of rival street gangs. ⁴

Lloyd called Renee Fitzgerald, his girlfriend and the mother of his son, to testify on his behalf. She asserted that on the evening of March 6, she and Lloyd were in the rear bedroom of the apartment, changing their son's diaper, when she heard someone in the apartment shouting "Five-O!" She further stated that at this time, Williams knocked on the rear bedroom door, and that when she opened it, Williams handed her the Ruger and asked her to get rid of it. According to Fitzgerald, upon receiving the gun, she closed and locked the door, broke the rear bedroom window with her fist, and threw the gun to the ground. When queried during cross-examination if she injured her hand as she broke the window, she stated no and that she had only sustained a scratch. She contended that she had not seen Lloyd in possession of a gun at any time during that day. On cross examination, she admitted that Fisher and Williams were security guards for Lloyd, and that Williams carried the Ruger as part of his guard duties. She also contradicted Fisher's testimony by stating...