Zambrella v. U.S., 02-1456.

• Decision Date: 05 May 2003
• Docket Number: No. 02-1456.,02-1456.
• Citation: 327 F.3d 634
• Parties: Taurus ZAMBRELLA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

327 F.3d 634

Taurus ZAMBRELLA, Petitioner, v. UNITED STATES of America, Respondent.

No. 02-1456.

United States Court of Appeals, Seventh Circuit.

Argued November 5, 2002.

Decided May 5, 2003.

Ruth Hennage (argued), Office of U.S. Atty., South Bend, IN, for Plaintiff-Appellee.

Jerome T. Flynn (argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.

Before FLAUM, Chief Judge, CUDAHY, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

On October 16, 2001, Defendant Taurus Zambrella was convicted by a jury of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of stealing firearms from a licensed business dealing in firearms, in violation of 18 U.S.C. § 922(u) and 18 U.S.C. § 2. The district court sentenced Zambrella to 293 months in prison on the two felony in possession charges, and 120 months in prison on the theft of a firearm charge (sentence terms to run concurrently). Zambrella seeks reversal of his conviction on the basis that the trial court improperly denied him a Franks hearing to test the validity of the search warrant affidavit. Alternatively, Zambrella urges this court to remand his case for re-sentencing because the district court "should have given [Zambrella] an additional opportunity to obtain transcripts of the [prior state] plea hearing ...," which he claims would have allowed him to prove, prior to sentencing, "that he [wa]s not an armed career criminal." Zambrella's Br. at 21. We affirm.

I. Background

On August 13, 2000, Sergeant Joel Whalen of the Manteno, Illinois, Police Department arrested Taurus Zambrella on felony charges and transported him to the Kankakee County Jail. While in jail, Zambrella used the telephone to make a number of phone calls, each of which was recorded on audio tape by the authorities. Seeking to identify another individual believed to be involved in the crime, Whalen interviewed Zambrella while he was in custody and, after his (Zambrella's) release, reviewed the master tape containing his outgoing phone calls.

In one conversation recorded on the audio tape, Whalen heard a male individual conversing with a female about "his" (the speaker's) guns located in his apartment. Based on his recent arrest and interview of Zambrella, Sergeant Whalen believed one of the voices on the tape to be that of Zambrella and further investigation revealed that the recipient of the phone call was Zambrella's wife.

In initiating the process of obtaining a warrant to search Zambrella's apartment (located in Gary, Indiana), Whalen's co-worker, Detective Bill Mort, contacted Detective John Meznarick of the Lake County, Indiana, Sheriff's Department. Mort told Meznarick about the taped telephone conversation, and informed Meznarick that Lieutenant Walling from the Kankakee County Sheriff's Office had identified Zambrella as the person whose voice was on the cassette tape. On August 21, Whalen delivered the cassette tape to Meznarick, and furnished Meznarick with the address of Zambrella's residence in Gary.

After listening to the tape of the telephone conversation recorded at the Kankakee County Jail, and relying on the information imparted to him by the Kankakee County police officers (date of phone call, identification of Zambrella as phone caller), Meznarick prepared a written affidavit in support of the application for a warrant to search Zambrella's residence. On August 23, 2000, Meznarick personally presented the affidavit to a judge pro tem in the Lake County Superior Court who, after reviewing the application and affidavit, issued a warrant to search Zambrella's residence.

Meznarick and other officers executed the warrant on August 24, 2000. During the search of Zambrella's home, officers seized two guns—a.20-gauge double-barrel shotgun and a Bushmaster .223 caliber semi-automatic rifle. The weapons were thereafter traced to a burglary of a federally licensed firearms dealer on July 10, 2000. Zambrella was ultimately charged with five counts of weapons violations.¹

Before trial, Zambrella moved to suppress the evidence obtained pursuant to the search warrant, arguing that the police lacked probable cause to search his residence because two of the facts set forth in the search warrant (the date of the phone call and the name of the officer who identified Zambrella as the caller) were later determined to be in error.² After conducting a thorough, two-day evidentiary hearing concerning the affidavit, during which Detective Meznarick, Lieutenant Walling, and Sergeant Whalen testified, the court made the following finding: "all the credible evidence [presented at the hearing, establishes] ... [that the] affidavit seeking the issuance of the search warrant[] w[as] properly done." Supp. Hr'g Tr. at 45.³ The court expressly "adopt[ed] the position of the Government" that any errors contained in the affidavit were "not fatal," and, moreover, that, although there may have been an "error in communication" between the police officers involved in the Zambrella investigation, there was certainly "no deliberate act on [the part of] Detective Meznarick [the affiant] or anyone else [involved in the investigation]" to include inaccurate information in the affidavit. Id. at 34-35, 45.

Despite the court's explicit finding that the affidavit supporting the search warrant was proper and valid, Zambrella once again renewed his complaint about the affidavit at a later pretrial conference, requesting a Franks hearing to test its truthfulness. Pretrial Conf. Tr. at 4. The court denied the request for a Franks hearing, ruling that the issues raised in connection with the affidavit's inaccuracies had been resolved during the prior two-day suppression hearing. Id. at 5-6. The case proceeded to trial before a jury. On the second day of trial, Zambrella renewed his motion for a Franks hearing, but the district court denied the same, ruling that motion had "already [been] ruled on [and denied]...." Oct. 16, 2001 Trial Tr., at 47-48.

After a two-day trial, the jury found Zambrella guilty of two felony in possession (firearm) charges, as well as the theft of (two) firearms charge. At the sentencing hearing on February 14, 2002, the Government argued that the sentencing judge should apply an "armed career criminal" enhancement pursuant to U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e). Under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (the "Act"), the sentencing enhancement applies if: (1) the offense of which the defendant has been convicted is a violation of 18 U.S.C. § 922(g) and (2) the defendant has at least three prior convictions for a "violent felony" or "serious drug offense." The Government presented evidence of three prior relevant convictions, only one of which was disputed by Zambrella.⁴

The disputed conviction occurred in the year 1990 when Zambrella was charged in Illinois with two drug violations: (1) possession of cocaine and (2) possession of cocaine with intent to deliver. The simple possession count was nolle prosequied before trial and Zambrella pled guilty to the second count-possession of cocaine with intent to deliver. At sentencing, Zambrella argued that he had pled guilty only to the simple possession charge (rather than possession with intent to deliver cocaine), while on the other hand, the Government maintained that he pled guilty to possession with intent to deliver (cocaine). Thus, the question before us is whether Zambrella's 1990 state conviction was for mere possession rather than possession with intent to deliver cocaine.

Under 18 U.S.C. § 924(e), "serious drug offense" is defined as follows:

an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law....

18 U.S.C. § 924(e)(2)(A)(ii).

Thus, if the prior conviction had been for simple possession only, as Zambrella argued before the sentencing court, Zambrella would have been ineligible for the "armed career criminal" enhancement.

To support the Government's contention that Zambrella's 1990 conviction was for possession of cocaine with intent to deliver, the Government presented the sentencing court with a plethora of evidence, including certified copies of the Circuit Court of Cook County's criminal information, sentencing order, docket sheet, and notification of final disposition. The certified copy of the 1990 criminal information reflected that "Count No. 1" was a simple possession charge, and that the second count was for "possess[ion] with intent to deliver ... cocaine...." Government's Ex. 1. And, according to the certified copy of the 1990 Cook County docket sheet, the "order entered" by the Cook County Circuit Court, on the date of the sentencing (May 18, 1990), was as follows: "Co 1-Nolle, Co 2-4 yrs. prob." See Government's Ex. 4. The certified copy of the sentencing order set forth that the charge for which Zambrella was sentenced was "P.C.S. W/INT"⁵ and the term of the sentence was "probation for a period of 4 yrs." See Government's Ex. 5. The notification of final disposition, meanwhile, confirmed that Zambrella's 1990 sentence was "4 yrs. prob.," but did not specifically recite the nature of the charge. See Notification, Government's Ex. 6.

Zambrella argued to the district court that the Government's evidence regarding the nature of the 1990 conviction was not conclusive. Specifically, he complained that the criminal information did not explicitly label the possession with intent to deliver charge as "count two," and that it was therefore unclear whether he was in fact convicted of that charge. Zambrella also claimed that the absence of the charge from the state court's notification of final disposition created some doubt as to which of the 1990...