United States v. Zambrella, Taurus ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1456
TAURUS ZAMBRELLA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:00-CR-197—James T. Moody, Judge.
____________
ARGUED NOVEMBER 5, 2002—DECIDED MAY 5, 2003
____________
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
2 No. 02-1456
affidavit. Alternatively, Zambrella urges this court to
remand his case for re-sentencing because the district
court “should have given [Zambrella] an additional opportu-
nity to obtain transcripts of the [prior state] plea hear-
ing . . .,” 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 Depart-
ment. 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
No. 02-1456 3
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 Zam-
brella 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 be-
cause 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 deter-
1
Only three of the counts (the two felony in possession of a
firearm counts and one theft of a firearm count) proceeded to trial.
Two of the original five charges were dismissed by the court
on motion of the prosecutors.
4 No. 02-1456
mined 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, estab-
lishes] . . . [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 affida-
vit’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
2
It was determined that the two facts (date and name of the
officer) were inaccurately relayed to Officer Meznarick by police
officers from Kankakee County.
3
References to the suppression hearing transcript are herein
denoted “Supp. Hr’g Tr.,” while references to the transcript of the
1990 plea hearing are denoted “1990 Plea Tr.,” citations to the
transcript of the pretrial conference are referred to as the
“Pretrial Conf. Tr.,” and citations to the sentencing hearing are
denoted, “Sentencing Hr’g Tr.”
No. 02-1456 5
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 enhance-
ment 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.
4
Because Zambrella only challenged the prior conviction for
possession of cocaine with intent to deliver, we need only discuss
that conviction.
6 No. 02-1456
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 Zam-
brella’s 1990 conviction was for possession of cocaine with
intent to deliver, the Government presented the sentenc-
ing court with a plethora of evidence, including certified
copies of the Circuit Court of Cook County’s criminal
information, sentencing order, docket sheet, and notifica-
tion 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
5
“P.C.S. W/INT” is apparently a short-hand reference to
“possession of a controlled substance with intent to deliver.”
No. 02-1456 7
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 Govern-
ment’s evidence regarding the nature of the 1990 convic-
tion was not conclusive. Specifically, he complained that
the criminal information did not explicitly label the pos-
session 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 notifica-
tion of final disposition created some doubt as to which of
the 1990 charges ultimately resulted in a conviction.
The court was satisfied that the certified documents
presented by the Government were authentic and convinc-
ing, and concluded that the 1990 conviction was for posses-
sion of cocaine with intent to deliver (Ill.Rev.Stat. 1991, ch.
56½, par. 1401). The court denied Zambrella’s motion
for a continuance of the sentencing.
II. Analysis
A district court’s denial of a defendant’s request for a
Franks hearing is reviewed for clear error. United States v.
Roth, 201 F.3d 888, 891 (7th Cir. 2000). A decision to deny
a motion for continuance of sentencing is reviewed for
an abuse of discretion. United States v. Knorr, 942 F.2d
1217, 1221 (7th Cir. 1999).
A. Franks hearing
A defendant is entitled to a hearing to challenge the
veracity of a search warrant, so long as he “makes a
8 No. 02-1456
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary
to the finding of probable cause.” Franks v. Delaware, 328
U.S. 154, 155-56 (1978). We agree with the Government
that Zambrella failed to fulfill the requirement of making
a substantial preliminary showing that the affiant in
this case, Detective John Meznarick, knowingly and
intentionally, or with reckless disregard for the truth, made
a false statement in the search warrant.
As we noted in United States v. Whitley, 249 F.3d 614 (7th
Cir. 2001), the “Franks decision did not define ‘reckless
disregard for the truth,’ other than to suggest that the
standard required more than mere negligence on the part
of the affiant.” Whitley, 249 F.3d at 621 (emphasis added).
In this case, the evidence presented at the suppression
hearing overwhelmingly supports the Government’s
argument that the affiant, Detective Meznarick, did not act
recklessly when he cited what later turned out to be two
factual errors (date of phone conversation, name of identify-
ing officer) in his affidavit. Instead, Meznarick held a good
faith belief, based on Detective Mort’s statements and the
label on the cassette tape, that the information set forth in
his affidavit was entirely true.
At the suppression hearing, Meznarick explained that
his statement regarding the date of the telephone call
reflected information imparted to him by Detective Mort.
Mort had informed Meznarick that the phone call took
place on August 21, 2000. And, according to Meznarick,
the date label on the copy of the cassette tape read “August
21, 2000,” apparently confirming the date on which the
No. 02-1456 9
phone conversation was recorded. Supp. Hr’g Tr. at 20.6
And, as far as the voice identification issue was concerned,
Meznarick was told that Lieutenant Walling (another
officer involved in the investigation) had identified the
voice on the tape to be Zambrella. Id. at 32.
Because Meznarick had been informed by Detective
Mort that the cassette tape was recorded on August 21,
2000, and that Walling had identified the voice on the
tape, Meznarick had a sound basis for setting forth those
facts in his affidavit. Any errors that were inadvertently
included in Meznarick’s affidavit were, at worst, the result
of mere negligence. Zambrella has thus fallen far short of
establishing that Meznarick exhibited a reckless disre-
gard for the truth, much less that he knowingly or inten-
tionally made a false statement.
Zambrella’s argument in support of a Franks hearing
fails for the additional reason that there is no reason to
believe that including the correct date (August 13, 2000
rather than August 21, 2000) or the correct identifying
officer (Whalen rather than Walling) would have made
a difference in the judge’s decision to issue the warrant.
Because neither of the alleged errors was critical to the
finding of probable cause, no Franks hearing was neces-
sary in this case. Franks, 438 U.S. at 155; United States v.
Maro, 272 F.3d 817, 821 (2001).
6
It was not until a week prior to the suppression hearing that
Meznarick learned that the actual date of the phone conversation
was August 13, 2000. Supp. Hr’g Tr. at 21. Thus, at the time that
he submitted the affidavit to the court, Meznarick truly believed,
based on all information available to him (Mort’s statement
and label on the cassette tape), that the telephone call had taken
place on August 21, 2000. Id. at 22 (“When you swore under oath
that the 21st was the actual date of the call, were you telling the
truth as you knew it?” “Yes.”).
10 No. 02-1456
Finally, we note that Zambrella’s repeated requests for
a Franks hearing were properly denied because the trial
court had previously resolved Zambrella’s challenge to the
search warrant affidavit. At the suppression hearing, the
trial court had ample opportunity to assess and weigh
Detective Meznarick’s explanation of the information set
forth in his affidavit. And, after hearing all of the evidence,
the court adopted the Government’s position that the
affidavit supporting the warrant did not contain any fatal
flaws, and that the warrant was entirely proper. Because
the suppression hearing effectively served the purpose of
a formally designated Franks hearing in this case, there
was no reason for the court to waste its valuable and
precious time revisiting a problem already raised by
Zambrella and resolved by the court. The district court
did not err in denying Zambrella’s request for a Franks
hearing.
B. Motion to continue sentencing
Zambrella’s contention that the district court abused
its discretion when it denied his motion for a continuance
to “clean up” the issue of his 1990 conviction is similarly
without merit. Despite Zambrella’s steadfast claim that
he was convicted of simple possession of cocaine, rather
than possession of cocaine with intent to deliver, the rec-
ord is abundantly clear. See May 18, 1990 Plea Hearing
Tr. at 5-11.
At sentencing, when arguing for the lesser charge (mere
possession of cocaine), Zambrella relied on an alleged
uncertified photostatic copy of what was designated as
a Cook County Circuit Court’s “Notification of Felony
Disposition” form that he presented to the court. In the
form, an unidentified person had filled in the “convicted
under” section of the Notification as “Pssn. Con. Sub.” (i.e.,
No. 02-1456 11
simple possession)—without any accompanying explana-
tion or proof of documentation from the Cook County
authorities, much less any letter of transmittal from the
Circuit Court referring to the alleged court document.
Zambrella contends that this uncertified paper which he
refers to as a document “created serious doubt as to the
status of his 1990 conviction” and thus he was entitled to
a continuance to clarify the issue before sentencing. Zam-
brella’s Br. at 14. We disagree, for this altered “Notifica-
tion” was itself inherently suspect.
Moreover, it must be pointed out that not until the very
moment of truth, on the very date of sentencing, did
Zambrella submit his alleged court document, entitled a
“Notification,” that purportedly supported his prior con-
viction was for simple possession. Sentencing Hr’g Tr. at 10.
Thus, it is obvious that the Government neither had
the time nor the opportunity to investigate the issue, much
less submit evidence of the possible forgery.
Given that Zambrella presented this seemingly fraudu-
lent document to the court for the first time on the very
morning of his sentencing, while standing before the court,
his request for a continuance is even more suspect. As
it turns out, Zambrella’s disclosure of the allegedly “re-
vised” Notification—two minutes before the moment of
decision (sentencing)—prevented the Government from
obtaining what would have conclusively settled the issue
of the 1990 conviction at that time—namely, a transcript
of the plea hearing concerning Zambrella’s prior drug
offense for possession with intent to distribute. From that
transcript, which has now been made part of the record, it
is abundantly clear that, in 1990, Zambrella was in fact
convicted of possession with intent to distribute cocaine,
rather than mere simple possession (as Zambrella claimed).
The transcript of the May 18, 1990 plea hearing held in
Cook County Circuit Court reads as follows:
12 No. 02-1456
Court: “Mr. Zambrella, your attorney tells me you
wish to plead guilty to the charge of posses-
sion of controlled substance with intent
to deliver, is that correct?”
Zambrella: “Yes, sir.”
Court: “Has your attorney had an opportunity to
discuss with you your rights under the law
and the consequences of pleading guilty to
this charge?”
Zambrella: “Yes.”
Court: “What is your plea to the charge of posses-
sion of controlled substance with intent
to deliver?”
Zambrella: “Guilty.”
Court: “Before I accept your plea of guilty, I want
to be sure you understand the legal rights
you have and the rights you give up when
you plead guilty. If you don’t understand
anything I say, please stop me and ask
me any questions you have . . . . The charge
against you is on or about January 12,
1989, in Cook County, Illinois, you, Taurus
Zambrella, committed the offense of pos-
session of controlled substance with intent
to deliver . . . . Do you understand the
charge against you?
Zambrella: “Yes, sir.”
Court: “Is that the charge you wish to plead guilty
to?”
Zambrella: “Yes, sir.”
Court: “The law provides certain penalties were
you convicted of the charge against you . . .
No. 02-1456 13
you could be sentenced anywhere from a
minimum of four years . . . to a maximum
of fifteen years . . . . And you also could
be fined up to two hundred and fifty thou-
sand dollars for this offense, or you could
be both fined and sentenced . . . . Do you
understand all of the possible penalties?”
Zambrella: “Yes, sir.”
...
Court: “Do you still wish to plead guilty?”
Zambrella: “Yes, sir.”
Court: “Do you understand you have the right to
plead not guilty and require the State to
prove you guilty beyond a reasonable
doubt?”
Zambrella: “Yes.”
Court: “Do you understand when you plead guilty
you give up your right to a trial of any
kind . . . . Do you understand that?”
Zambrella: “Yes.”
...
Court: “You give up the right to have a jury trial.
A jury trial is made [up] of twelve men and
women chosen in part by you and your
lawyer. . . Do you understand what a jury
is and what it does?
Zambrella: “Yes, I do.”
Court: “I have a jury waiver here, is that your
signature?”
Zambrella: “Yes.”
...
14 No. 02-1456
Court: “Jury waive will be accepted and made a
permanent part of the record. Have any
threats of any kind been made to you to get
you to plead guilty?”
Zambrella: “No.”
Court: “Has anyone forced you to plead guilty?
Zambrella: “No.”
Court: “Are you pleading guilty of your own free
will?
Zambrella: “Yes.”
Court: “. . . [H]as anyone made any promises to
you about what I would or would not do if
you plead guilty?”
Zambrella: “No.”
...
Court: “Mr. Zambrella, knowing the nature of the
charge, the possible penalties, and your
rights under the law, do you still wish to
plead guilty to the charge of possession of
controlled substance with intent to
deliver?”
Zambrella: “Yes.”
Court: “The Court finds the defendant under-
stands the nature of the charge against
him . . . [and that] defendant is pleading
guilty knowingly, voluntarily . . . the Court
accepts the defendant’s plea of guilty to
possession of controlled substance with
intent to deliver, enter judgment on that
finding.”
1990 Plea Tr. at 5-11.
No. 02-1456 15
Had the district court granted Zambrella’s motion for a
continuance, Zambrella would have succeeded in his ef-
forts to put off his moment of reckoning—all based on his
mischaracterization to the district court of his prior crimi-
nal record. Despite Zambrella’s concentrated efforts to
rewrite and erase portions of his criminal history through
an attempted fraud on the court, the record is eminently
clear that on May 18, 1990, in Cook County Circuit Court,
he knowingly pled guilty to possession with intent to
distribute. Thus, we are unsympathetic to his efforts to
postpone the sentencing hearing, and hereby hold that
it was well within the bounds of the sound discretion
of the district court to deny the requested continuance in
this case.
AFFIRMED.
16 No. 02-1456
CUDAHY, Circuit Judge, concurring in the judgment. The
majority deals properly with the Franks hearing issue. The
other issue is whether the district court should, in its
discretion, have granted a continuance to obtain a sen-
tencing transcript with respect to Zambrella’s prior drug
offense to support an increase in sentence of some fourteen
years. It seems to me that we are only lending credence
to Zambrella’s complaint by obtaining and relying here
on the very transcript that Zambrella sought, to support
a decision that there was no need for the district court
to consult the same transcript. See maj. op. at 12-14.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-5-03