United States v. Charles Dent, Also Known as William Brown, and Ivy T. Tucker

984 F.2d 1453
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 2, 1993
Docket91-3113, 91-3114
StatusPublished
Cited by32 cases

This text of 984 F.2d 1453 (United States v. Charles Dent, Also Known as William Brown, and Ivy T. Tucker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles Dent, Also Known as William Brown, and Ivy T. Tucker, 984 F.2d 1453 (7th Cir. 1993).

Opinions

HARLINGTON WOOD, Jr., Senior Circuit Judge.

This appeal arises from the convictions of the defendants Charles Dent and Ivy Travis Tucker for being felons in knowing possession of a firearm in violation of Title 18, United States Code, Section 922(g). Several eyidentiary issues are raised in addition to a challenge of the government’s recall of a witness at trial in response to notes from the jury before the close of evidence. Defendant Tucker further challenges the enhancement of his sentence by allegedly constitutionally invalid convictions. Both defendants were found guilty at a jury trial in February 1991.

Facts and Procedure

This case began with a simple traffic stop in a parking lot in Lansing, Illinois, on January 31, 1989. A Lansing police officer named Brad Borys testified that he saw the driver of a car run a stop sign. Officer Borys activated his lights and pulled the car over. There were two people in the car, a 1983 Datsun, the two defendants in this case. Defendant Tucker was driving the car, and defendant Dent was seated in the front passenger side of the car. The officer parked behind the Datsun, and the officer got out of his car as the defendants got out of their car. The officer asked the driver, Tucker, for his driver’s license, which he did not have. The driver then gave the officer a false name. Dent, the passenger, also gave the officer a false name. During this time, the officer patted both defendants down. The car did not have any license plates but had a license applied for sticker’ in the rear window. Officer Borys wrote down the car’s vehicle registration number (“VIN”) from the sticker in the rear window and compared it with the VIN number on the driver’s side of the car’s dashboard.

At this point, the defendants’ version of the facts diverges from the government’s version. The district court at a suppression hearing held on January 16 and 18, 1991, made findings • of facts consistent with the government’s position. The district court found that as Officer Borys was comparing the car’s VIN number that he had written down from the sticker in the rear window with the number on the dashboard, he saw a gun protruding from underneath the driver’s seat of the car. Officer Borys opened the unlocked car door and retrieved the gun, which was loaded, and placed in it in his back pocket. At about this time a back-up patrol unit which had been previously called arrived at the [1457]*1457scene. Officer Borys asked the arriving officer, Bruce H. Peterson, to watch the two men while he searched the interior of the car. After searching the car for approximately five to ten minutes and finding nothing more, Officer Borys told Officer Peterson that he had recovered a gun. Officer Borys did not tell Officer Peterson that he had found a loaded gun when Officer Peterson first arrived, nor did Officer Borys handcuff the defendants or tell them to get down on the ground or raise their hands in the air. After the second search of the car, defendants were placed under arrest. Tucker was searched and found to be carrying $1,700. The car was towed to the Lansing police station. Two trench coats, one nylon half-stocking, and one black mask or head covering item were recovered from the inventory search of the car at the station. The only item admitted into evidence at trial was the black mask or head covering item; the trench coats were not kept and the nylon half-stocking was lost.

Defendants’ version of the fácts is different at several significant points. Defendants contend that Officer Borys did not see the gun when looking at the YIN number through the front window. They both testified at the suppression hearing that the car was locked and that the officer searched Dent for the car key. They testified that Officer Borys retrieved the gun only after an extensive search of the car. Officer Borys then said to Officer Peterson something like “look what I found.” Officer Peterson testified that he did not know that Officer Borys had found a gun until five or ten minutes after he arrived.

On July 25, 1990, a grand jury returned a one-count indictment charging the defendants with being felons in knowing possession of a firearm.

Defendants moved to suppress the evidence found as a result of the traffic stop. Defendants contend the evidence was found illegally. The government conceded at the suppression hearing that if Officer Borys did not see the gun sticking out from under the seat in plain view as he looked through the front window, the subsequent search was illegal and the gun should be suppressed. The district court denied the motion to suppress and found that the gun was seen by the officer in plain view as the officer looked through the front window. The district court believed Officer Borys’ testimony but found that parts of defendants’ testimony were unbelievable.

Several evidentiary issues raised in motions in limine prior to trial are among the issues on appeal. First, Dent moved to exclude his plea of guilty to a misdemeanor state claim for unlawful use of a weapon which arose out of the same facts. In the alternative, Dent moved to admit the portion of the state court transcript indicating the plea was against the advice of Dent’s state court lawyer. The district court denied Dent’s motion and granted the government’s motion to bar testimony by Dent’s lawyer.

Dent and Tucker moved to exclude the evidence of the masks and trench coats found in the car under Rule 403 of the Federal Rules of Evidence. The district court denied their motion and held the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The government moved to admit the grand jury testimony of Roger Elayyan, who was unavailable to testify at trial, under Rule 804(b)(5) of the Federal Rules of Evidence. The district court held the statement was relevant and had the required guarantees of trustworthiness for admission. The court further found that admission of the testimony would not violate the defendants’ right to confront witnesses under the Sixth Amendment of the United States Constitution.

The jury trial for the defendants began February 20, 1991, and lasted two days. After the judge dismissed the jury for the day near the end of the government’s case, the judge received a note from one of the jurors. This note read: “On the bill of sale [for the car], where is the price of license and title transfer? Why is the purchaser’s address the same as the address of the car [1458]*1458lot? Was the mileage 11,000-plus for an ’83 Datsun, a six-year old automobile.” Supp.Rec. vol. II at 147. The judge received a second note apparently from the same juror. The second note read: “Who is the gun registered to?” Supp.Rec. vol. Ill at 169.

The district court and both parties agreed on how to respond to the questions. When the trial began the next day, the court told the jury:

One of the jurors wrote two notes asking four questions concerning the bill of sale exhibit and the gun exhibit, both of which have been received in evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
984 F.2d 1453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-dent-also-known-as-william-brown-and-ivy-t-ca7-1993.