U.S. v. Queen, 87-1986
| Decision Date | 16 May 1988 |
| Docket Number | No. 87-1986,87-1986 |
| Citation | 847 F.2d 346 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ellery QUEEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Debra Rae Bernard, Miquelon & Associates, Ltd., Chicago, Ill., for defendant-appellant.
Jeffrey E. Stone, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, FLAUM and RIPPLE, Circuit Judges.
The defendant, Ellery Queen, appeals a ruling of the district court denying his motion to quash his arrest and to suppress evidence discovered pursuant to that arrest. The court had issued a bench warrant for Mr. Queen's arrest when he failed to surrender himself voluntarily for execution of sentence on prior offenses. Pursuant to the bench warrant, agents of the Federal Bureau of Investigation (FBI) arrested Mr. Queen at his residence. At that time, the agents discovered a loaded revolver on the floor of the closet where Mr. Queen was arrested. Mr. Queen subsequently was indicted for several offenses related to the arrest and his post-arrest conduct. After his pretrial motions were denied, Mr. Queen pleaded guilty to two counts of the indictment and the district court imposed sentence. Because both the arrest and the search incident to the arrest were lawful, we affirm the judgment of the district court.
In a verdict rendered on January 14, 1983, a jury found Mr. Queen guilty of conspiracy and interstate transportation of stolen property. On February 24, 1983, the district court sentenced him to ten-years imprisonment with a consecutive five-year probation term. The sentence was stayed pending appeal. Mr. Queen then appealed to this court. However, we dismissed his appeal in a mandate issued February 14, 1984 for failure to file a brief. 1 On June 13, 1984, pursuant to a motion under Rule 35 of the Federal Rules of Criminal Procedure, the district court reduced his sentence to eighteen months. At that time, the court also set July 13, 1984 as Mr. Queen's surrender date. Mr. Queen failed to surrender himself on that date.
Nearly four months after his surrender date, on November 5, 1984, the government obtained a bench warrant for Mr. Queen's arrest. On January 15, 1985, three FBI agents arrested Mr. Queen at his home. After the arrest, the agents discovered a loaded handgun. Then, while being transported to the federal building, Mr. Queen raged that he wanted to kill one of the agents--Agent Daniel R. Dzwilewski, who had testified against Mr. Queen at his conspiracy trial--and that he had embarked on a plan to kill the agent.
On January 21, 1985, the Supreme Court issued its decision in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). On the basis of that decision, 2 Mr. Queen moved to reinstate his appeal on April 5, 1985. In an order dated April 19, 1985, we granted the motion, recalled our February 14, 1984 mandate, and reinstated Mr. Queen's appeal. We subsequently issued a per curiam order affirming Mr. Queen's conviction. In March 1986, Mr. Queen finished serving his eighteen-months imprisonment on the 1983 conviction.
While Mr. Queen was serving his eighteen-month sentence, the government petitioned the district court to revoke his probation on the basis of his failure to surrender and his conduct during the apprehension. This petition was filed in February 1985 but withdrawn on May 21, 1986. 3
In February 1987, an indictment was returned charging Mr. Queen with five counts stemming from the events on the day he was arrested pursuant to the bench warrant: 1) failing to surrender himself for execution of a previous sentence; 2) being a convicted felon in the possession of a firearm that moved through interstate commerce; 3) using a deadly weapon to assault and resist federal agents in the performance of their duties; 4) attempting to cause injury to a federal agent in retaliation for his testimony at a prior trial; and 5) possessing a firearm while committing the crimes charged in counts three and four. The government moved for the detention of Mr. Queen and the court granted the motion on February 24, 1987.
A hearing was held to consider a motion to quash the arrest, to suppress any physical evidence seized and to suppress any oral statements that Mr. Queen made to the agents. The district court denied the motion on April 7, 1987. Thereafter, on April 20, 1987, Mr. Queen entered a conditional plea of guilty to two counts: failure to surrender and being a felon in possession of a firearm. On June 15, 1987, the district court sentenced him to five-years probation on each count. The sentences were to run concurrently with each other and with the probation imposed from the initial 1983 conspiracy conviction. At that time, the government moved to dismiss the three remaining counts of the indictment. Mr. Queen then timely filed a notice of appeal.
Because Mr. Queen's arguments on appeal turn on the events surrounding his arrest in 1985, a more detailed presentation of those facts is required.
On January 15, 1985, at approximately 7:10 a.m., three FBI agents, Thomas Canady, John Dolan and Daniel R. Dzwilewski, went to Mr. Queen's residence in Northbrook, Illinois to execute the bench warrant for his arrest. The agents covered both the front and rear doors of the house. Although nobody answered the doorbell, Agent Dolan saw a man through a glass partition in the door. He then testified that the man moved behind an interior door of the house. For several minutes, the agents continued to knock and ring the bell. Yet, despite their announcing themselves as federal agents, the man inside denied them entry.
Shortly thereafter, Nona Queen, Mr. Queen's wife, arrived at the residence in her automobile, but drove off when she observed the agents. An agent followed and eventually stopped her. When questioned concerning Mr. Queen's whereabouts, she responded that he had left for California in July 1984. The agents then returned to the Queen residence. At 8:51 a.m., Mr. Queen's stepson, Michael Freese, drove up to the Queen residence. Mr. Freese refused to talk to the agents and entered the house. He departed the residence shortly thereafter. Agent Dolan then questioned some neighbors; one indicated that he had seen Mr. Queen only two weeks before.
At approximately 10:15 a.m., Mr. Freese returned to the Queen residence where the agents were continuing their surveillance. They informed Mr. Freese that they had a warrant for Mr. Queen's arrest. At this point, the agents followed Mr. Freese into the house. 4 Once inside, the agents called out for Mr. Queen and announced that they had an arrest warrant. When they received no response, the agents searched the house.
Agent Dolan eventually went to the basement and searched a closet. The closet was approximately three-feet deep by three-feet wide with a crawl space on the left side. Upon entering the closet, the agent moved some clothes and observed a blanket on the floor. Agent Dolan felt the blanket and immediately determined that someone was underneath it. The agent drew his gun and ordered the person to "[p]ut your hands out, palms up." Tr. of Apr. 7, 1987 at 21. There was no response from the person underneath the blanket. Agent Dolan then repeated the command. His call alerted Agents Dzwilewski and Canady, who proceeded to the basement. Mr. Queen, the person hiding underneath the blanket, then moved only one hand into the open. Agent Dolan then commanded Mr. Queen to "[p]ut the other hand out." Id. at 22. However, Mr. Queen refused to do so. After several seconds had elapsed, Agent Dolan made another command to expose the other hand. Mr. Queen finally complied.
Mr. Queen then was commanded to exit the closet. With Agent Dolan's handgun trained on him, Agents Dzwilewski and Canady patted Mr. Queen down and handcuffed him in an area approximately three feet from the open closet. Immediately thereafter, Agent Dolan returned to the closet and looked down at the spot where the blanket had concealed Mr. Queen. On the floor of the closet, unobstructed by the blanket, 5 was a .357 magnum revolver loaded with two hollow-point bullets--which expand upon impact--and four standard bullets. Agent Dolan seized the firearm and Mr. Queen was transported to the federal building. On his way there, Mr. Queen uttered excited comments threatening the life of Agent Dzwilewski. At a suppression hearing conducted to determine whether the search of the closet violated the fourth amendment, the district court held that the search was lawful incident to Mr. Queen's arrest.
Mr. Queen contends that, because our April 19, 1985 order recalled our February 14, 1984 dismissal of his appeal, his original appeal was pending before us ever since it was initially filed in February 1983. Accordingly, he contends, the district court had no jurisdiction to issue the November 5, 1984 bench warrant for his arrest. The government, in contrast, contends that the district court retains limited jurisdiction to enforce its own orders.
Once an appeal has been taken, the general rule is that a district court--with limited exceptions--is powerless to take any adjudicatory action related to the appeal. United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987); Doyle v. United States, 721 F.2d 1195, 1197 (9th Cir.1983); see also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401, 74 L.Ed.2d 225 (1982) (per curiam). Nevertheless, district courts do retain limited jurisdiction to take certain post-appeal actions in criminal cases. See United States v. Katsougrakis, 715 F.2d 769, 776 n. 7 (2d Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984); see also 18 U.S.C. Sec. 3148 (...
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