U.S. v. Wilson, s. 97-4057

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before POSNER, Chief Judge, and RIPPLE and DIANE P. WOOD; RIPPLE
• Citation: 169 F.3d 418
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeremy WILSON and Joseph Guarino, Defendants-Appellants.
• Docket Number: 97-4082,Nos. 97-4057,s. 97-4057
• Decision Date: 17 February 1999

Page 418

169 F.3d 418 UNITED STATES of America, Plaintiff-Appellee,
v.
Jeremy WILSON and Joseph Guarino, Defendants-Appellants. Nos. 97-4057, 97-4082. United States Court of Appeals,
Seventh Circuit. Argued Sept. 9, 1998.
Decided Feb. 17, 1999.
Rehearing Denied in No. 97-4082 March 17, 1999.

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Jonathan D. King (argued), Office of the U.S. Attorney, Chicago, IL, for U.S.

Robert A. Novelle, Timothy R. Roellig (argued), Serpico, Novelle & Navigato, Chicago, IL, for Joseph Guarino.

Steven Shobat, Timothy R. Roellig (argued), Chicago, IL, for Jeremy Wilson.

Before POSNER, Chief Judge, and RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

After machine guns, firearms, silencers and cocaine were seized from their residence pursuant to a search warrant, Jeremy Wilson and Joseph Guarino entered conditional pleas of guilty to the offenses of illegal possession of those items. Each defendant reserved the right to challenge on appeal the district court's denial of his motion to suppress the evidence resulting from the execution of the warrant. Each defendant also raises a sentencing issue on appeal. For the reasons that follow, we affirm the judgment of the district court in all respects but one: The court's sentencing determination with respect to Mr. Wilson must be reversed and remanded for a recalculation of his sentence.

I BACKGROUND

A. Facts

Jeremy Wilson and Joseph Guarino both resided in a house in Berwyn, Illinois. On May 2, 1995, Special Agent Ken Howard, a police officer with the Berwyn Police Department who was assigned to the Metropolitan Enforcement Group of Cook County, Illinois, filed a complaint for a search warrant in order to search Mr. Wilson, Mr. Guarino and their residence. The complaint stated that Special Agent Howard, the complainant, had probable cause to believe that in the house were guns, cocaine, items used to manufacture, distribute and possess cocaine, and currency associated with the sale of narcotics.

The probable cause asserted by the officer was based on the statement of confidential informant John Doe that he had known both Mr. Wilson and Mr. Guarino for more than a year and knew that they sold and used cocaine. The informant, a cocaine user himself for two years, stated that he had bought cocaine from them and had used cocaine with them in the past year. On the day before the complaint was filed, May 1, 1995, when the informant was at their residence, he was told that Mr. Guarino and Mr. Wilson had just received a large amount of cocaine. John Doe further related that Mr. Guarino brought up from the basement a large, clear plastic bag that contained smaller packages of the powder cocaine and they used it. He stated that he "received the same feeling from snorting the white powder given to me by Guarino and Wilson as I have from snorting cocaine in the past." Guarino R.25, Ex.2 at 2. Mr. Guarino then returned the large plastic bag containing smaller packages of cocaine to the basement area of the residence, John Doe reported. Based on those facts, complainant Special Agent Howard stated that he believed that Mr. Guarino and Mr. Wilson were in possession of cocaine. Although the complaint recited all of these facts in a first person narrative, the complaint was signed only by Special Agent Howard and not by John Doe.

On the afternoon of May 2, 1995, Agent Howard appeared before Judge Gamberdino in the Cook County Circuit Court. Appearing with Agent Howard was the confidential informant who had supplied the information that formed the basis for the warrant. In the complaint seeking the warrant, in the draft warrant, and in his statements before the judge, Agent Howard referred to the informant as "John Doe" in order to maintain his anonymity. The judge questioned both the informant and the agent under oath, reviewed the complaint for the search warrant and then granted the warrant.

The next day, May 3, Agent Howard, other officers of the Berwyn Police Department, and several agents from the Department of Treasury's Bureau of Alcohol, Tobacco and Firearms ("ATF Agents") executed the warrant and conducted the search of the residence. They seized drugs, a cache of firearms and silencers, and one weapon with an

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obliterated serial number. The agents and officers also arrested Mr. Wilson and Mr. Guarino. ¹

Both men were indicted by a federal grand jury. Mr. Guarino was charged in 3 counts with illegal possession of machine guns and firearms (in violation of 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d)) and possession with intent to distribute cocaine (in violation of 21 U.S.C. § 841). Mr. Wilson was charged with 2 counts of illegal possession of firearms, one of which had an obliterated serial number (in violation of 26 U.S.C. § 5861(d)).

B. Decisions of the District Court

Mr. Guarino filed a motion to suppress the evidence resulting from the search of his residence. Mr. Wilson joined in the motion. The defendants challenged the constitutional validity of the search warrant on the ground that the complaint for the warrant did not comply with the oath or affirmation requirements of the constitutions of the United States and of Illinois because John Doe did not sign the complaint and was not proven reliable.

The government, in response to this motion, attached the sworn affidavits of Judge Gamberdino and Special Agent Howard. These documents described the facts and circumstances concerning the proceedings in the Cook County Circuit Court that led to the issuance of the search warrant. Judge Gamberdino affied that Agent Howard presented the search warrant and complaint for the warrant to the court on May 2, 1995, and that both the officer and the informant appeared as witnesses. He further stated that he was aware that "John Doe" was a pseudonym used to conceal the informant's identity. The judge reported that, even though he could not remember any specific questions he had asked Agent Howard and John Doe, it was his usual and regular practice when reviewing "John Doe" search warrants to question both the informant and the officer under oath. He explained that he "always ask[ed] these questions in order to assess the reliability and credibility of the informant and/or the officer, and to determine their basis of knowledge for the facts alleged in the affidavit." Wilson R.28, Ex.1. The judge also stated that he approved such warrants only after satisfying himself that the witnesses were "reliable and credible, and that the facts alleged in the affidavit and to me personally are sufficient to establish probable cause to issue the warrant." Id.

In his affidavit, Special Agent Howard stated that he presented the search warrant and complaint to the court on May 2. His sworn statement also verified Judge Gamberdino's reported procedure of questioning both Agent Howard and John Doe under oath. Although Agent Howard did not remember the actual questions the judge asked, he did recall that the under-oath questioning concerned the witnesses' reliability and credibility and the basis of their knowledge for the facts alleged in the complaint and search warrant.

On November 19, 1996, the district court denied the defendants' motion to suppress. The court determined first that the complaint for the search warrant was "sloppily drafted and [was], by itself, insufficient to support a finding of probable cause," Mem. Op. at 7, because it was written as a first-person statement of John Doe but was signed by Agent Howard. Moreover, noted the court, the complaint did not state specifically that Doe informed Agent Howard of the facts in the complaint or that Agent Howard found Doe's information to be credible and reliable. Nevertheless, the district court stated, because the judge, prior to signing the warrant, reviewed the complaint and heard the sworn testimony of the two witnesses concerning the facts alleged in the warrant, the "oath or affirmation" requirement was satisfied. The court noted in particular that John Doe, by giving sworn testimony, had "subjected himself to the possibility of prosecution for perjury had his testimony proved false" and, by appearing personally before the court, had enabled the judge to assess Doe's credibility

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and the reliability of his testimony in the complaint. Id. at 6.

The district court then considered Mr. Guarino's claim that Agent Howard had misled Judge Gamberdino by presenting information in the complaint that Agent Howard knew to be false. Mr. Guarino, by affidavit, denied that he had used cocaine with anyone on May 1, 1995, and denied that anyone who could be "John Doe" was in his home on that day. Concluding that Agent Howard fabricated the facts, Mr. Guarino sought a hearing on the issue under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). ² The district court determined that Mr. Guarino's affidavit was merely a "bare-bones, self-serving denial of the facts set forth by [Agent] Howard" in the complaint for the search warrant. It did not provide the "substantial preliminary showing" needed to justify a Franks hearing. Id. at 8-9. Therefore, the court concluded, no evidentiary hearing was required.

The district court also denied Mr. Guarino's second motion to quash and suppress. ³ Thereafter, each defendant entered a conditional plea of guilty but reserved the right to appeal the district court's suppression determinations. On November 24, 1997, Mr. Guarino was sentenced to 42 months of imprisonment and Mr. Wilson to 37 months.

II DISCUSSION

A. Denial of the Suppression Motion

1.

On appeal, the defendants challenge the validity of the search warrant on two grounds. They contend first that the confidential informant's unsigned and unsworn statement in the complaint for the search warrant violated the Oath or Affirmation Clause of the Fourth Amendment. Second, they claim that the informant's reliability was not proven to the court issuing the warrant. Thus, they conclude, the...