U.S. v. Taylor

• Decision Date: 26 August 1998
• Docket Number: 98-1120,Nos. 97-1004,s. 97-1004
• Citation: 154 F.3d 675
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel T. TAYLOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Samuel T. TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 675

154 F.3d 675

UNITED STATES of America, Plaintiff-Appellee, v. Samuel T. TAYLOR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Samuel T. TAYLOR, Defendant-Appellant.

Nos. 97-1004, 98-1120.

United States Court of Appeals Seventh Circuit.

Argued Sept. 15, 1997.

Decided Aug. 26, 1998. ¹

Kenneth M. Hays (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 97-1004.

Jon E. DeGuilio (submitted), Office of the United States Attorney, Dyer, IN, William T. Grimmer, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 98-1120.

Douglas M. Grimes (argued), Gary, IN, for Defendant-Appellant.

Before POSNER, Chief Judge, CUMMINGS and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A grand jury indicted Samuel Todd Taylor for possession of more than five grams of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and for being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After separate trials before separate juries, Taylor was convicted of both counts and has appealed the convictions. We have consolidated these appeals because they involve overlapping issues and now affirm both convictions.

I.

Taylor's arrest and convictions stem from a search of 1614 S. Fellows St., where police found firearms and crack cocaine. The officers obtained a search warrant for the residence based on a controlled purchase by a confidential informant as well as statements from other informants that indicated narcotics-related traffic at that residence. Surveillance confirmed the drug traffic at the residence and police executed the warrant in the early morning, finding Taylor asleep with his girlfriend Sheila Gaston. In the bedroom where the pair were found sleeping, the police observed a padlocked closet. Inside the closet, they found men's clothing and cologne, a receipt with Taylor's name on it, a shotgun, semi-automatic handguns, and ammunition. No women's clothing was found in the closet. Men's walking shorts were found next to the bed, and in the pockets, police found a pager registered to Taylor, a wallet containing Taylor's identification, $805 in cash, and a clear plastic baggie containing crack cocaine. In the house, police found a number of items associating Taylor with that residence, including a driver's license, a vehicle title certificate, and a hospital billing statement for him with that address. The officers later established that the defendant's pager and his health insurance were obtained with that address listed as his residence. On the morning of the search, Ms. Gaston made a videotaped statement to the police confirming that Taylor lived there, that the walking shorts belonged to him, and that she had seen him recently in possession of crack cocaine and believed crack was sold out of the house. Taylor denied that the drugs or guns were his and claimed that he did not reside there.

A grand jury subsequently returned a two count indictment against Taylor for possession with intent to distribute and for being a felon in possession of a firearm. The district court granted his request for separate trials on the two counts before separate juries. Prior to each of the trials, Taylor moved to quash the indictment and the search warrant, and to suppress the evidence seized from the residence. The district courts denied those motions. A jury convicted him on the firearms count, but the first trial of the crack cocaine count resulted in a hung jury. A second trial on that count resulted in a conviction. Taylor now appeals his convictions to this Court.

II.

On appeal, Taylor raises a myriad of issues, none of which entitle him to relief. Some relate to both convictions and some to one of the trials. We will address the issues common to both convictions first.

A.

First, with respect to both convictions, Taylor argues that the police lacked probable cause for obtaining the search warrant. He asserts that the affidavit which formed the basis for the warrant lacked indicia of reliability. The facts of record belie that argument, and support the magistrate's determination of probable cause. In order to find probable cause for a search warrant, the magistrate need only find that the totality of the circumstances demonstrates a "fair probability that contraband or evidence of a crime will be found." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). On review, we must uphold that determination if the magistrate had a " 'substantial basis for ... conclud[ing]' that probable cause existed." Id. (citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). In the instant case, the magistrate judge issued the warrant based upon an affidavit submitted by Officer Dennin. That affidavit stated, in pertinent part, as follows. Officer James A. Dennin received information from both known and anonymous sources that narcotics were being sold from the residence. The police received complaints that Taylor was selling narcotics from that residence since 1991. The complaints described the narcotics traffic at that house. Furthermore, Dennin and other officers verified the type of traffic described by the complainants during surveillance of the house. Finally, a confidential informant told Dennin that he could purchase crack cocaine from Taylor at that residence, and subsequently made a controlled purchase of crack cocaine at that residence under the surveillance of Dennin. After making the purchase, the confidential informant gave the crack cocaine to Dennin. Considering the totality of the circumstances, that information is certainly sufficient to demonstrate a fair probability that contraband would be found at the residence. The magistrate thus did not err in issuing the search warrant, and the district court properly denied Taylor's motions to quash the search warrant and suppress the evidence.

B.

In a related claim, Taylor contends that the district court erred in limiting the scope of cross-examination during a Franks hearing held to determine the veracity of the affidavit. A Franks hearing is proper where the defendant has made a substantial preliminary showing that an affiant, in obtaining a search warrant, included deliberately false material statements, or recklessly disregarded the truth. Franks v. Delaware, 438 U.S. 154, 170-171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). That showing is not met by mere conclusory statements. Id. In this case, Taylor provided only conclusory assertions that the allegations in the affidavit were false. He provided no evidence other than his own self-serving statements. In an excess of caution, the district court conducted an evidentiary hearing to enable Taylor to develop his Franks argument, but treated the hearing as one to determine whether the preliminary showing could be met. Because the affidavit submitted by Taylor was insufficient to raise any inference that the Dennin affidavit was false, the district court was not required to hold any hearing at all. Therefore, any limits placed upon cross-examination at that hearing are not problematic.

Moreover, even if a Franks hearing had been required, the limits placed upon the cross-examination were proper efforts to focus the questioning on relevant lines of inquiry. The questions precluded by the judge addressed circumstances unrelated to the statements in the Dennin affidavit, or involved a rehashing of points that Taylor had already made. For example, Taylor repeatedly attempted to establish that the $20 bill used by the confidential informant in the controlled purchase was not found in the subsequent search of the residence. He argued that discovery of the $20 bill at the residence would have confirmed that the controlled purchase actually occurred, but that its absence established that the purchase never took place. This argument is a stretch given that the search occurred two days after the controlled purchase. Because the absence of the $20 bill at that time was not probative of Dennin's truthfulness in relation to the controlled purchase, the district court was correct to limit the testimony. Moreover, the questioning had already yielded the fact that the $20 bill was not found, so further inquiry was repetitive and was properly refused.

Taylor also complains that the district court refused to allow him to subpoena the magistrate who issued the warrant. Taylor provided to the district court a Verified Offer of Proof regarding the testimony he hoped to obtain from the magistrate judge. In essence, the Offer of Proof stated that the magistrate judge would testify that he believed the allegations in Dennin's affidavit and issued the warrant based upon those allegations. That testimony adds nothing to the question of whether Dennin recklessly submitted an affidavit containing false statements. Because the magistrate judge's testimony was irrelevant to the fundamental issues regarding the truth or falsity of the affidavit and Dennin's state of mind, the court properly refused that request. Therefore, the court did not err in limiting the scope of the evidentiary hearing, and in fact provided Taylor with a more extensive opportunity to develop his argument than the law would require.

C.

The defendant next complains that the grand jury indictment was fundamentally flawed and should have been quashed. Toward that end, he argues that the government improperly introduced evidence of his gang affiliation, and that the indictment was based solely on hearsay. ² The testimony regarding the gang affiliation came at the initiation of a grand juror during the questioning of the witness:

JUROR: So is this the Sammy Taylor of Dawg Life? ³

MR. GRIMMER (Asst.U.S.Atty): Let me--Why don't you answer that. Go ahead and answer the question.

WITNESS: Yes, it is.

JUROR: Does this disarm that situation somewhat or--

MR....