U.S. v. Morales

• Decision Date: 21 May 1990
• Docket Number: No. 89-2053,89-2053
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert MORALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 604

902 F.2d 604

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

No. 89-2053.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1990.

Decided May 21, 1990.

Thomas M. Durkin, John N. Gallo, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Mark W. Solock, Patrick G. Reardon, Chicago, Ill., Robert Morales, Federal Medical Center, Rochester, Minn., for defendant-appellant.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

It is a federal crime for a person who has been convicted of a felony to possess a firearm that has been shipped in interstate or foreign commerce. 18 U.S.C. Sec. 922(g)(1). And if, as in the case of appellant Robert Morales, the person has three or more previous convictions for a violent felony or a serious drug offense, the minimum sentence for the crime is fifteen years in prison, without possibility of parole. Sec. 924(e)(1). That is the sentence Morales received, for he had four previous convictions--one for rape, one for attempted rape, and two for aggravated battery, and these are all violent felonies.

The appeal raises only one question that requires extended discussion: whether the district judge abused his discretion in turning down Morales' motion, made under Rule 33 of the Federal Rules of Criminal Procedure, for a new trial. United States v. Reed, 875 F.2d 107, 113 (7th Cir.1989); United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980). This rule provides that "the court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Because the trial judge is in a better position than we to evaluate such a motion--he heard the witnesses and lawyers and watched the jurors as they listened to the evidence--the standard of appellate review is, as the cases cited indicate, a highly deferential one.

A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly. United States v. Reed, supra, 875 F.2d at 113; United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir.1985). But if the judge believes there is a serious danger that a miscarriage of justice has occurred--that is, that an innocent person has been convicted--he has the power to set the verdict aside, United States v. Rothrock, 806 F.2d 318, 321-22 (1st Cir.1986), even if he does not think that he made any erroneous rulings at the trial. The existence of the power implies, in extreme cases anyway, a duty enforceable by an appellate court. Rule 33's conferral of discretion on the district court ("the court ... may grant") is not a license to abuse it. Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950); United States v. Wiley, 517 F.2d 1212, 1219-20 (D.C.Cir.1975); United States v. Parks, 460 F.2d 736, 745-46 (5th Cir.1972).

Did Judge Hart abuse his discretion in deciding that the evidence was sufficient to obviate serious concern that an innocent person had been convicted? He reached this conclusion only with hesitation. So troubled was he, indeed, that after turning down the motion for a new trial he asked the government (as if he were a French juge d'instruction ) to conduct a further investigation of the crime, to make sure it had not prosecuted the wrong person. The government complied by sending a pair of Assistant United States Attorneys to the scene of the crime to look for the bullets that the Chicago police had failed to look for two years earlier, when the crime had been committed. Of course they found nothing.

The facts leading up to Morales' conviction are as follows. At midnight on the night of June 28, 1987, officer Richard Maher of the Chicago police was sitting in his squad car when he heard what sounded like a gunshot. According to his testimony at the trial, he glanced in the direction of the sound and saw, at a distance of 200 feet, an Hispanic man with raised arm. He then saw a flash of light and another gunshot. He followed the man into a nearby tavern, just seconds behind him, and saw him standing to the side of the bar and making an underhand tossing motion toward it. The officer arrested the man--Morales, as he turned out to be--and with the aid of another officer began looking for the gun. In one of the three sinks, each one foot square, behind and recessed under the bar, the officers found a semi-automatic pistol, a .25 caliber Armi Tanfaglio; in another they found a clip for the pistol, with five bullets in it. The clip for this type of pistol can hold seven bullets, and there is room for an eighth in the chamber. When the gun is fired, the recoil automatically loads a bullet from the clip into the chamber and cocks the trigger. (That is what makes it semi-automatic; if the trigger did not have to be pulled after each shot for the gun to keep on firing, the gun would be fully automatic.) So the chamber of the pistol found by the police in the sink should have contained a bullet, if the pistol had just been fired, but it did not.

The police did not check the gun for fingerprints, which might or might not have been obliterated by the water. Cf. Scott's Fingerprint Mechanics Sec. 37, at pp. 122-25 (Olsen ed. 1978). They did not administer a gunshot-residue test to Morales to determine whether he had fired a gun recently. They did not look for (or find serendipitously) any spent shells, or the live round that had presumably--since the chamber was empty--been ejected from the chamber manually after being automatically loaded into it from the clip when the previous round was fired. And they did not interview the one customer at the bar, or even ask him his name. Federal officers eventually tested the gun to determine whether it was in working condition, and found that it was--making the absence of a round in the chamber all the more puzzling.

The owner of the bar testified that she was cleaning up with the aid of an employee, preparatory to closing, when Morales entered. She testified that she saw him standing next to the bar, a foot away from her, but did not see him throw anything. She denied that either she or her employee had a gun.

Officer Maher was the key witness for the prosecution. His partner in the squad car did not testify, even though the government had sought and obtained a continuance to enable him to do so. Although Maher testified to hearing two shots, his police report mentioned only one. Although he testified to being 200 feet from Morales when the shots were fired, at the preliminary hearing he had testified that he was 500 feet away. In the police report and at the preliminary hearing he had stated that Morales had run into the tavern, but at the trial he testified that Morales had walked into it. In the police report he had stated that he arrested Morales only after finding the gun, a sequence that suggests he may not have been confident that he had tracked the shooter to the bar. But at trial he testified that he arrested Morales first, and then looked for and found the gun.

The preliminary hearing was in a state court, because Illinois, too, has a law punishing convicted felons for possession of firearms. But upon discovering that the maximum sentence that Morales could receive under Illinois law was five years (of which he would have to serve only two and a half years if he behaved himself in prison), the U.S. Attorney decided to prosecute Morales under federal law, where if convicted Morales would receive a minimum sentence of fifteen years without possibility of parole, although good-time credits could reduce it to thirteen years. 18 U.S.C. Sec. 3624. What the federal interest is in punishing the possession of a firearm by a person convicted of Illinois felonies escapes us, but is not our business. The existence of federal jurisdiction is not in doubt (the out-of-state origin of the gun is conceded), and we do not review the exercise of prosecutorial discretion. United States v. Schwartz, 787 F.2d 257, 266 (7th Cir.1986); United States v. Podolsky, 798 F.2d 177, 179 (7th Cir.1986); United States v. Miller, 891 F.2d 1265, 1271-72 (7th Cir.1989) (concurring opinion).

The investigation of the incident by the Chicago police was extraordinarily sloppy (perhaps because the police did not think they were investigating a serious offense), and by the time the federal authorities became...