United States v. Joe Hester , 552 F. App'x 580 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 23, 2014*
Decided January 23, 2014
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 12-3758
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 848
JOE HESTER,
Defendant-Appellant. Robert M. Dow, Jr.,
Judge.
ORDER
Joe Hester appeals from his convictions for drug and gun offenses. He argues
primarily that the fruits of a search of his apartment should have been suppressed.
We affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-3758 Page 2
In summer 2007, Chicago police officers learned from a confidential informant
that a person named “Joe” sold heroin out of a south-side apartment later determined to
be the residence of Joe Hester. “Joe,” reported the informant, had brandished a chrome,
semi-automatic firearm when selling him drugs. Based on this information, Officer
Cedric Taylor prepared a probable-cause affidavit and obtained a warrant to search the
apartment and seize the weapon. While executing the warrant, police officers located
and seized multiple weapons, as well as powder and crack cocaine. Hester also
admitted to the officers that everything illegal in the apartment was his. Hester was
arrested on state charges that were later dismissed.
In October 2008 Hester was arrested on a federal charge of possession of a
firearm while a felon. See 18 U.S.C. § 922(g)(1). After his initial appearance, he was
detained while the government sought an indictment. Before Hester was indicted, then-
Chief Judge Holderman granted the government three continuances. One continuance
was granted in order to accommodate a grand jury witness who wished to retain
counsel, another to allow the government more time to receive the results of forensic
tests on narcotics and fingerprints from Hester’s apartment, and the third to allow more
time for the fingerprint analysis to be completed. Hester was indicted in February 2009
on two counts of possession with intent to distribute a controlled substance, see 21
U.S.C. § 841(a)(1), and one count of possessing a weapon while a felon.
Following his arraignment Hester moved to dismiss the charges under the
Speedy Trial Act because he was not indicted within 30 days after his arrest (the period
actually was four months). 18 U.S.C. § 3161(b). District Judge Manning, to whom the
case had been reassigned, denied the motion. After reviewing the earlier findings
supporting the continuances, Judge Manning concluded that they sufficed to exclude all
of the covered period and thus no Speedy Trial Act violation had occurred.
Three months later Hester moved again to dismiss the charges against him, this
time arguing that his prior felony convictions in Illinois could not serve as predicate
felonies for the felon-in-possession charge because Illinois had restored his civil rights
after his release from prison. Judge Dow, to whom the case had again been reassigned,
denied this motion because Hester had another prior felony conviction: felony burglary
in Georgia.
Six months later Hester moved to dismiss the charges against him a third time,
asserting that he had been deprived the assistance of counsel when his retained lawyer,
William Laws, failed to file a formal appearance with the court. At an evidentiary
No. 12-3758 Page 3
hearing on the matter, Laws testified that he had appeared in court and advocated for
Hester at both his bail hearing and his arraignment, but never intended to represent
him and appeared only as a “friend of the court.” Judge Dow denied this motion as
well, concluding that Hester’s argument exalted form over substance, and that Laws
actually represented Hester despite his failure to file a formal appearance.
Hester later challenged the search of his home, insisting that probable cause did
not exist to search the apartment; he also sought a hearing under Franks v. Delaware, 438
U.S. 154 (1978), to determine whether the affidavit used to obtain the warrant was
willfully falsified. Hester believed that the story told by the informant was too
conclusory to establish probable cause that a gun was in his apartment, and maintained
that the informant’s account was a fabrication hatched by the police to manufacture
probable cause. Judge Dow disagreed, finding the affidavit sufficiently detailed to
establish probable cause, and rejecting the need for a Franks hearing because Hester
failed to show any false statements in Officer Taylor’s affidavit.
The case proceeded to trial, and a jury found Hester guilty on all counts. Hester
moved for judgment notwithstanding the verdict, and that motion was denied.
On appeal, Hester principally challenges Judge Dow’s conclusion that probable
cause existed to search his apartment and that a Franks hearing was not required. He
maintains that the allegations in Officer Taylor’s affidavit are too conclusory to establish
probable cause; the affidavit, he says, lacked facts about how the informant came to be
in his apartment, or how the informant knew him. These omissions also make clear, he
asserts, that the affidavit contained deliberate or reckless misrepresentations.
Judge Dow correctly concluded that Officer Taylor’s affidavit provided probable
cause for the search. Because the affidavit was the only evidence supporting the search
warrant, the warrant stands or falls with the affidavit. United States v. Bell, 585 F.3d
1045, 1049 (7th Cir. 2009). The affidavit contained detailed information about the
informant’s activities, including physical descriptions of Hester and the apartment
building, a description of the gun Hester brandished during the sale, and a description
of the effect on the informant of a substance alleged to be heroin. It also recounted the
informant’s successful working relationship with the police. These facts would
persuade a reasonable person that a search of Hester’s apartment would uncover
evidence of crime. See United States v. Lake, 500 F.3d 629, 632–33 (7th Cir. 2007); United
States v. Brack, 188 F.3d 748, 755–56 (7th Cir. 1999). Despite Hester’s protestations,
information about how the informant entered Hester’s building or how the informant
No. 12-3758 Page 4
came to learn that Hester sold heroin is not necessary to establish probable cause. See
United States v. Searcy, 664 F.3d 1119, 1123 (7th Cir. 2011) (because informant’s
information was reliable, “facts indicating how the informant came to be inside Searcy’s
home . . . are by no means required to establish probable cause”).
Judge Dow also correctly determined that Hester’s conclusory allegations about
the falsification of the search-warrant affidavit do not amount to the “substantial
preliminary showing” required to obtain a Franks hearing. United States v. Johnson, 580
F.3d 666, 670–71 (7th Cir. 2009); United States v. Taylor, 154 F.3d 675, 679–80 (7th Cir.
1998). As Judge Dow explained, Hester failed to meet his considerable burden: he failed
to show that any false or misleading statement was included in the affidavit supporting
the warrant; that Officer Taylor made any false statement intentionally or with reckless
disregard for the truth; or that any false or misleading information was necessary for
the probable-cause finding. See Franks, 438 U.S. at 155–56; Johnson, 580 F.3d at 670.
Relatedly, Hester argues that the district court abused its discretion by refusing
to force the government to disclose the identity of the confidential informant. But Judge
Dow correctly declined to compel production of the informant’s identity.
Demonstrating a need for the informant’s identity was Hester’s burden, see United States
v. Valles, 41 F.3d 355, 358 (7th Cir. 1994), and his conclusory allegations of fraud based
on the affidavit’s lack of specificity are insufficient.
Hester next asserts that Judge Holderman abused his discretion by granting the
government four months of pre-indictment continuances even though it then had
enough evidence to indict him. But Judge Holderman did not abuse his discretion in
extending time for the government to put certain witnesses or evidence before the
grand jury. See United States v. Gilmer, 534 F.3d 696, 705 (7th Cir. 2008) (not abuse of
discretion to grant continuance to allow government to subpoena records and speak to
potential grand jury witnesses). Furthermore, Hester made no attempt to show that the
resulting delay prejudiced his defense. See United States v. Larson, 417 F.3d 741, 745 (7th
Cir. 2005).
Hester next challenges Judge Dow’s conclusion that he was not denied his Sixth
Amendment right to representation during critical stages of the proceedings. Hester
believes that he was deprived representation because Laws never filed a formal
appearance with the district court. But the “[f]ailure of [Laws] to file an appearance did
not . . . result in the defendant not being represented.” United States v. Veras, 51 F.3d
No. 12-3758 Page 5
1365, 1369 (7th Cir. 1995). Nothing in the record suggests that Hester suffered from a
breach in representation, so it cannot be said that he was denied his right to counsel. Id.Hester also argues that Judge Dow erred by refusing to dismiss the gun charge
against him on the basis of Buchmeier v. United States, 581 F.3d 561, 567 (7th Cir. 2009)
(en banc). In that case a letter sent by the state of Illinois informing a felon that his civil
rights had been restored precluded the felon’s previous Illinois convictions from
serving as predicate felonies under 18 U.S.C. § 922(g)(1). Hester, who received a similar
letter from the state of Illinois, argues that his prior Illinois convictions also cannot
count as predicate felonies, so he could not be charged in Illinois as a felon in
possession. But apart from those Illinois convictions, his conviction for violating
§ 922(g)(1) could be predicated on his Georgia conviction, which Hester does not
contest. And a restoration of civil rights in one jurisdiction has no effect on convictions
from other jurisdictions. Beecham v. United States, 511 U.S. 368, 371–72 (1994); United
States v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997).
Hester further argues that the evidence presented at his trial was insufficient to
convict him. But a rational trier of fact could find him guilty. See Jackson v. Virginia, 443
U.S. 307, 319 (1979). The evidence presented against him was largely unrebutted and
overwhelming: The government presented expert evidence that the drugs found during
the execution of the search warrant were powder and crack cocaine, elicited testimony
establishing that the guns found in the search had moved interstate, and demonstrated
that Hester lived in the searched apartment—connecting him to both the drugs and the
guns. Hester presented no witnesses of his own.
Finally, Hester argues that his sentence must be vacated in light of Alleyne v.
United States, 133 S. Ct. 2151 (2013). But Alleyne matters only when a defendant’s
statutory minimum sentence is raised by a finding of fact. Id. at 2155. Hester was not
subject to any statutory minimum sentence, so his sentence could not violate Alleyne.
AFFIRMED.