U.S. v. McCarty

• Decision Date: 14 November 1988
• Docket Number: No. 87-2278,87-2278
• Citation: 862 F.2d 143
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Leon McCARTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 143

862 F.2d 143

UNITED STATES of America, Plaintiff-Appellee, v. Robert Leon McCARTY, Defendant-Appellant.

No. 87-2278.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 16, 1988.

Decided Nov. 14, 1988.

Michael J. Cohn, Milwaukee, Wis., for defendant-appellant.

Ann M. Kisting, Asst. U.S. Atty., Patricia J. Gorence, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before POSNER, EASTERBROOK and MANION, Circuit Judges.

MANION, Circuit Judge.

On January 28, 1987, two Milwaukee police officers stopped a car driven by Robert McCarty, a convicted felon. In his car, the officers found a handgun. A grand jury indicted McCarty on one count of possessing a firearm after having been convicted of a felony, 18 U.S.C. Sec. 922(g)(1). McCarty filed a motion to dismiss the indictment and a motion to suppress evidence seized and statements made at the time of his arrest. The district court denied both motions. McCarty subsequently entered a conditional guilty plea to the count charged in the indictment; the plea agreement reserved McCarty's right to appeal the district court's denying his motions to dismiss and to suppress. See Fed.R.Crim.P. 11(a)(2). McCarty now brings that appeal. We affirm.

I.

18 U.S.C. Sec. 922(g) makes it a federal crime for "any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm." The indictment charged, in pertinent part, that "on or about January 28, 1987, in the State and Eastern District of Wisconsin," McCarty,

having been convicted on August 27, 1985, in the United States District Court for the Eastern District of Wisconsin of interstate transportation of firearms by a convicted felon and making false statements in the acquisition of a firearm, crimes punishable by imprisonment exceeding one year, did knowingly possess in and affecting commerce, a firearm, to wit, a Smith and Wesson .44 magnum caliber revolver, serial number N850472.

(Emphasis added.) McCarty contends that the language "did knowingly possess in and affecting commerce" makes the indictment impermissibly vague. According to McCarty, the government was required to specifically plead the facts showing how he possessed the firearm in or affecting commerce.

An indictment is sufficient if it states the essential elements of the offense charged, fairly informs the defendant of the charges against him so that he may prepare a defense, and protects the defendant against future prosecution that may result in double jeopardy. United States v. Johnson, 805 F.2d 753, 757-58 (7th Cir.1986). Judged by this standard, the indictment is sufficient. The indictment against McCarty tracked Sec. 922(g) and stated the date and place of his alleged possession. The indictment also specifically identified the handgun McCarty possessed by make, caliber, and serial number. By tracking the statute, the indictment properly alleged the elements of a Sec. 922(g) violation. Also, the detail in the indictment, particularly the specificity with which it described the handgun, protected McCarty against double jeopardy.

The language "did knowingly possess in and affecting commerce" adequately charged the interstate commerce element of Sec. 922(g) and was sufficient to allow McCarty to prepare a defense to that charge. To prove the required nexus between a defendant's possession and interstate commerce, the government only has to show that the firearm traveled in interstate commerce at some time. See United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.1988); United States v. Gillies, 851 F.2d 492, 493-94 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); see also Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (interpreting the interstate commerce nexus required by 18 U.S.C.App. 1202(a), the almost identically-worded predecessor to the possession offense now found in Sec. 922(g)); H.R.Rep. No. 99-495, at 23, reprinted in 1986 U.S.Code Cong. & Admin.News 1327, 1349 (explaining that the Firearm Owners' Protection Act of 1986, P.L. 99-308, repealed 18 U.S.C.App. 1202(a) but carried its provisions over into Sec. 922(g)). As we have noted, the indictment identified the handgun that McCarty possessed by make, caliber, and serial number. Given the minimal interstate nexus Sec. 922(g) requires, the detailed information about the handgun was more than enough for McCarty to discover how to defend against the interstate commerce element of the charge.

McCarty has cited no case law to support his contention that the government had to plead the interstate commerce element more specifically. What case law there is supports the conclusion that the general allegation that McCarty possessed the handgun "in and affecting commerce" was sufficient. In United States v. Williams, 679 F.2d 504, 507-09 (5th Cir.1982), the government charged the defendant with affecting interstate commerce by means of extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. The indictment alleged no underlying facts concerning how the defendant's extortion affected interstate commerce. The Fifth Circuit held that alleging interstate commerce effects in conclusory terms was sufficient. Similarly, in United States v. Metzger, 778 F.2d 1195, 1200 (6th Cir.1985), the Sixth Circuit held that an indictment charging the defendant with transporting explosives in interstate commerce and destroying a vehicle used in interstate commerce was not insufficient because it did not define interstate commerce. In Dees v. United States, 789 F.2d 1521, 1522 (11th Cir.1986) (per curiam), the Eleventh Circuit rejected as "frivolous" a contention that an indictment charging receipt of a firearm by a felon under 18 U.S.C. Sec. 922(h) was insufficient where the indictment tracked the statute, and stated the date, time, place, and participants involved. ¹ And most recently, this circuit, in United States v. Lowe, supra, held that an indictment charging that the defendant possessed a firearm "that had previously traveled in interstate commerce" sufficiently charged the interstate commerce element of the possession offense under Sec. 922(g). See Lowe at 1373-74. ² Following the lead of Williams, Metzger, Dees, and Lowe, we conclude that the district court properly denied McCarty's motion to dismiss the indictment as impermissibly vague.

II.

McCarty also filed a motion to suppress, alleging that the police illegally searched his car. The district court denied that motion after an evidentiary hearing before a magistrate and another hearing before the district judge. The evidence showed that in mid-January, 1987, John Santiago, a Milwaukee police officer, told Detective Joseph Nowicki about a conversation Santiago had had with McCarty in Scott E's, a bar on Milwaukee's south side. According to Santiago, McCarty said he was a bounty hunter for the United State's Marshal's Office. McCarty said that he liked south side bars because he did not have to carry his gun. Santiago described McCarty as a white male, approximately six feet four to six feet five inches tall, with short, well-trimmed hair.

On January 27, Nowicki received a telephone call from a confidential informant. The informant told Nowicki that he had seen McCarty with a large handgun and that McCarty was looking for Gary Wolf, an agent or informant who had "put him away." The confidential informant described McCarty to Nowicki; the informant's description matched Santiago's, except that the informant supplied the additional detail that McCarty bore a tattooed star on the webbing of his right hand.

Early the next morning, at Scott E's, Nowicki recognized McCarty based on Santiago's and the informant's descriptions; Nowicki specifically observed the distinctive star tattoo on McCarty's right hand. Nowicki saw McCarty write a check. Printed on the check were the names Robert McCarty and Stephanie McCarty, and the address 2923 S. 46th Street, Milwaukee, Wisconsin. Nowicki also overheard a conversation between McCarty and the bartender. During that conversation, McCarty stated that he was ready to go target shooting at any time because his gun was always in his car.

Later that day, Nowicki checked McCarty's background and discovered that McCarty was a convicted felon. At about 6:00 p.m., Nowicki relayed the information he had about McCarty, including McCarty's address, to Milwaukee police officers Pamela Dries and George Bower. At around 8:00 p.m., Nowicki received a phone call from the confidential informant. The informant told Nowicki that McCarty was driving a beige compact automobile with Michigan license plates bearing the insignia BUG or BUL 278. When Nowicki relayed this information to Dries and Bower, they told Nowicki that they had driven by McCarty's house earlier that evening and had noticed a tan Chrysler with Michigan license plates bearing the insignia 278 RUL parked nearby. Nowicki relayed this information to two officers who worked the 7:00 p.m. to 3:00 a.m. shift, Heidi Panasiuk and Gary Zielinski. Nowicki also told Panasiuk and Zielinski that McCarty was a convicted felon who possibly had a handgun with him.

About forty minutes later, while on routine patrol, Panasiuk and Zielinski saw a tan Chrysler Aries with Michigan license plates 278 RUL. Zielinski and Panasiuk followed the car. With the officers following the tan Aries cut sharply across several traffic lanes without using a directional signal. The Aries then made another left turn and pulled into an alley. Zielinski thought that the Aries' driver was trying to evade him and Panasiuk, so the officers activated their red light and siren. The Aries then pulled into a private driveway; before the Aries stopped, however, Panasiuk saw the driver lean toward the right, as if to hide something under the passenger seat.

Zielinski and Panasiuk, concerned for their safety because they had...