U.S.A. v. Quilling, 01-1314

• Decision Date: 20 August 2001
• Docket Number: No. 01-1314,01-1314
• Citation: 261 F.3d 707
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY C. QUILLING, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 707

261 F.3d 707 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY C. QUILLING, Defendant-Appellant.

No. 01-1314

In the United States Court of Appeals For the Seventh Circuit

Argued May 15, 2001

Decided Aug 20, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 99 CR 30059--Richard Mills, Judge. [Copyrighted Material Omitted] Before RIPPLE, MANION and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Gary Quilling was charged by indictment with one count of being a felon in possession of a firearm and with one count of being a felon in possession of firearm ammunition, both in violation of 18 U.S.C. sec. 922(g)(1). A jury found Mr. Quilling guilty on both counts, and he was sentenced to seventy- eight months' imprisonment and three years of supervised release. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

In the evening on September 3, 1998, members of the Violent Crime Initiative Task Force ("task force"), comprised of federal and local law enforcement officers, were patrolling an area of East St. Louis, Illinois. The officers were patrolling in both marked and unmarked vehicles in an organized formation.

At approximately 8:45 p.m., the task force came upon a 1984 gray, four-door Chevrolet car bearing the license plate "Gary Q 1." A member of the patrol, Officer Nick Mueller, radioed to the rest of the group, "That's Gary Quilling's vehicle." Tr.IX at 39. Mr. Quilling was driving the car. He parked and began walking away from the car. Frank Jefferson, a passenger, also exited the vehicle. Deputy Marshal¹ Lawrence Kelly, a member of the patrol, pulled his vehicle parallel to Mr. Quilling's car.

Another officer at the scene, Officer James Jones, saw Mr. Quilling walking away and said, "Hey Gary, we need [ ] to talk to you." Id. at 66. Mr. Quilling began walking back toward the car voluntarily. Marshal Kelly walked up to the passenger side of Mr. Quilling's car, where Jefferson was standing, and shined his flashlight into the car. He noticed a handgun on the front seat of the automobile. Marshal Kelly said in a loud voice, "Whose gun is this in the car?" Id. at 48. Mr. Quilling replied, "It's not my gun." Id. at 68. Marshal Kelly attempted to retrieve the gun by opening the passenger door, but he was unsuccessful.

Marshal Kelly briefly spoke to Jefferson at the scene. At that time, Jefferson stated that he did not know to whom the firearm belonged, but that it was not his. That night, Jefferson made and signed a statement claiming no knowledge or ownership of the firearm. However, Jefferson later testified at Mr. Quilling's trial that the firearm did belong to him and that he had lied at the scene and had made a false statement at the United States Marshal's office because he was "scared." Id. at 181.

After Mr. Quilling said, "It's not my gun," he dropped the keys to the automobile and did not attempt to pick them up. Marshal Tom Woods then approached the automobile from the driver's side and saw the firearm on the seat; he leaned through the open driver's side window and seized the firearm. Both Marshal Kelly and Marshal Woods later testified that the barrel of the firearm was facing the passenger window, the butt of the firearm was pointed toward the rear of the automobile, and the firearm was placed near the center armrest next to where the driver's right thigh would be.

Investigator Phillip Delaney, a part- time member of the task force, approached Mr. Quilling and escorted him to the patrol vehicle that Investigator Delaney and Marshal Woods had been driving. They both sat in the rear of the vehicle. Because he had come in contact with Mr. Quilling previously, Investigator Delaney asked Mr. Quilling if he remembered him; Mr. Quilling replied that he did. Mr. Quilling then asked, "What's going to happen to me?" Id. at 105. Investigator Delaney told Mr. Quilling that the officers were going to take him to the United States Marshal's office to talk about the gun. Mr. Quilling then said, "You know I need that because I was shot before." Id. at 106. Investigator Delaney ended the conversation by saying, "Gary, we're going to advise . . . you of your rights at the Marshal's Office, we'll talk about it there." Id. That night Mr. Quilling was taken to the United States Marshal's office, but he did not make a statement and was released shortly thereafter.

Seven months later, on April 28, 1999, four members of the task force went to a house located at 9" Cahokia Street in Cahokia, Illinois, to execute an arrest warrant for Mr. Quilling in reference to the possession of the firearm. The task force went to that address because it was a "known address" for Mr. Quilling, id. at 144-45, and Mr. Quilling's automobile was visible in the driveway.

The house at 9" Cahokia Street is a single-story home. It contains a great room, a kitchen and eating area and one back bedroom. The task force approached the house. Marshal Sean Newlin and Officer Mueller went to the front door while two other officers went to the rear of the house. Officer Mueller knocked on the front door and announced "police" and "open the door." Id. at 149. Shortly after Officer Mueller began knocking on the front door, the officers in the rear of the house began knocking on windows and calling Mr. Quilling's name.

After approximately five to fifteen minutes,² a man, later identified as Joe King, answered the door and stated that, although he would not let the officers in, he would get the person who resided there. Approximately ten to twenty minutes later, Mr. Quilling walked out of the front door onto the front porch. After Mr. Quilling was handcuffed and taken into custody, Marshal Newlin again knocked on the door of the residence. Mr. Quilling's girlfriend, LaDonna Dixon, answered the door and allowed Marshal Newlin into the front room of the house.

At that time, Mr. Quilling was brought back into the front room. Marshal Newlin asked who lived in the residence. In unison, Mr. Quilling and Dixon responded, "We do." Id. at 153. Marshal Newlin then asked whose name was on the lease, and Dixon replied that only her name was on the lease. Marshal Newlin then asked for and received Dixon's permission to search the house.

While searching the bedroom, the officers found a box of .38 caliber ammunition on a table at the base of the bed and at least one loose round of the same ammunition in the bed. The officers seized the box of ammunition and the loose round. Later, this ammunition was examined by Thomas Gamboe, a forensic scientist employed by the Illinois State Police. Gamboe offered expert testimony at Mr. Quilling's trial as to how the properties of the ammunition seized from the house on 9" Cahokia Street compared to the ammunition taken from the gun seized from Mr. Quilling's car on September 3, 1998.

Gamboe testified that all of the ammunition seized from the automobile and all of the ammunition seized at the house was .38 caliber and consisted of two different types of bullets--lead hollow point and full metal jacket flat nose. Each set of ammunition (the ammunition from the car and the ammunition from 9" Cahokia Street) contained at least one bullet of each type. The lead hollow point bullets that were found in both the car and at 9" Cahokia Street were marked with two cannelures in similar spots on each bullet. (A cannelure is a ring around the circumference of a bullet that manufacturers use to aid in identifying the bullet's weight.) The sets of full metal jacket bullets also shared similar characteristics. The diameter, length and design of the cartridge case were all the same for the bullets found in the car and at 9" Cahokia Street. Additionally, these bullets were all flat-nosed, had a step base, were 138 grain (a weight measurement) and had no cannelures.

B. Earlier Proceedings

In June of 1999, Mr. Quilling was tried by jury on the possession of a firearm charge. The verdict from that trial was later vacated, and Mr. Quilling was awarded a new trial on grounds unrelated to this appeal. On September 9, 2000, the Government filed a superceding indictment, adding a charge that Mr. Quilling knowingly possessed firearm ammunition in violation of 18 U.S.C. sec. 922(g)(1).

Mr. Quilling filed a motion to sever the two counts. The court denied the motion. The court held that joinder of the counts was proper because the counts were of like class and character and the essential elements of each offense was the same. Severance was not required because (1) Mr. Quilling had failed to prove that actual prejudice would occur as a result of trying the two counts together, and (2) there was little chance that the jury would be confused by the joinder of the counts because the trial was short and the evidence was straightforward.

On October 26, 2000, Mr. Quilling filed a pro se motion to suppress the statement that he made to Investigator Delaney on September 3, 1998, in which he said, "You know I need that because I was shot before." Tr.IX at 106. He also moved to suppress "any and all evidence relating to the pre-trial statement of the defendant by any witness who was involved in the improper obtaining of the statement on September 3rd 1998." R.80. The court denied the motion to suppress, stating that the motion was untimely. The court also noted that, even if the motion had been timely, Mr. Quilling had failed to present facts that were sufficiently definite to enable the court to decide that a "substantial claim was presented and that there are disputed issues of material fact which will affect the outcome of the motion." R.82 (internal quotation marks and citations omitted).

At the end of the two-day trial, the jury found Mr. Quilling guilty on both counts. After the verdict, Mr. Quilling filed a motion for judgment of acquittal, and, in the alternative, for a new trial on both counts....