Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 57 -- Susan Getzendanner, Judge.
Cudahy, Posner, and Coffey, Circuit Judges.
Defendant-appellant, James McDonald, appeals his conviction in the United States District Court, Northern District of Illinois, for mail fraud in violation of 18 U.S.C. § 1341, possession of stolen mail in violation of 18 U.S.C. § 1708, bank theft in violation of 18 U.S.C. §§ 2113(b), (c), and interstate transportation of a stolen security in violation of 18 U.S.C. § 2314. We affirm.
The evidence revealed that on the morning of June 5, 1979, a confidential informant notified Detective Richard Smith of the Chicago Police Department, Narcotics Unit, that he had been offered cocaine by a person known as "James" in the "front room" of "James '" apartment at 2701 S. Indiana, Apt. 1907, Chicago, Illinois. The informant used the cocaine and experienced the same "high" as he had on previous occasions when using cocaine. Upon leaving "James '" apartment, the informant observed an additional quantity of cocaine in a plastic bag in the "front room" of the apartment. Detective Smith had known this informant for some eight months and had received accurate information on six separate occasions, each of which resulted in an arrest. Based upon this informant's past reliability, Detective Smith compiled the information in an affidavit which he signed, had approved by an Assistant State's Attorney, and presented, along with a search warrant, to Judge Joyce of the Cook County Circuit Court. The search warrant provided for Detective Smith to "search 'James' Male/Negro Approx. 45 yrs. 5'10 175 lbs. Blk. hair and 2701 S. Indiana Apartment # 1907 Chicago, Cook, Ill. and seize Cocaine: to wit a Narcotic Drug & Proof of Residency." After determining that probable cause existed to search "James" and 2701 S. Indiana, Apt. 1907, Chicago, Illinois, Judge Joyce approved and signed the search warrant at 10:52 a.m., June 5, 1979.*fn1
Later that day, at approximately 3:00 p.m., Detective Smith and four other officers of the Chicago Police Department, Narcotics Unit, arrived at 2701 S. Indiana, Apt. 1907 and knocked on the door. Defendant McDonald opened the door, identified himself as "James," was given a copy of the search warrant, and was escorted to the living-bedroom of his studio apartment. Upon entering the living-bedroom, Detective Smith observed "a crushed plant and some white powder" on the coffee table which he believed to be marijuana and cocaine. Detective Smith seized these items, arrested and handcuffed McDonald, and ordered him to remain seated at the dining table.
Smith next observed a handgun and a valise (similar to an artist's portfolio with dimensions of 3' x3' x2") with the top flap open exposing what appeared to be pieces of mail, on the floor of the living-bedroom. Smith retrieved some pieces of the mail, and upon closer examination, realized that none of it was addressed to a "James" nor 2701 S. Indiana, Apt. 1907, Chicago, Illinois. Suspecting theft, Smith seized the valise and its contents.
While continuing to search for cocaine and proof of residency, Detective Smith found a second handgun in the kitchen closet and a manila envelope containing a powder he believed to be cocaine along with a one kilo gold bar and some gold coins in the bathroom closet.*fn2 During this search Detective Smith also discovered and seized credit cards, auto insurance cards, drivers licenses, money orders, and various loan papers, many inscribed with names and addresses other than James McDonald residing at 2701 S. Indiana, Apt. 1907, Chicago, Illinois.
Following this search, Detective Smith transported McDonald to the Chicago Police Department and notified the United States Postal Service that he had discovered numerous pieces of suspiciously misdirected mail. Postal Inspectors Dodd and Tomaino arrived at police headquarters and, along with Detective Smith, reviewed the materials found in the valise, initialed each item, and transferred them to an evidence locker at the Main Post Office, Chicago, Illinois.
On February 3, 1981, a Federal Grand Jury returned a sixteen count indictment against McDonald which included one count of mail fraud in violation of 18 U.S.C. § 1341, six counts of possession of stolen mail in violation of 18 U.S.C. § 1708, eight counts of bank theft in violation of 18 U.S.C. §§ 2113(b), (c), and one count of interstate transportation of a stolen security in violation of 18 U.S.C. § 2314. On February 6, 1981, McDonald pleaded not guilty to all counts. On March 26, 1981, McDonald filed a Motion to Suppress the evidence seized from his premises, claiming that no lawful search warrant existed for the search of his premises at the time police officers entered his apartment. The United States District Court for the Northern District of Illinois conducted an extensive three-day hearing on the Motion to Suppress during September, 1981.
At the hearing, McDonald claimed that the warrant which police officers presented to him upon their arrival contained no physical description of himself, no apartment number, and no judge's signature. McDonald testified that just before he was taken to the Chicago Police Department he had placed this warrant on the dining table and had given Detective Smith his key chain, which contained apartment and car keys, because Detective Smith "wanted to search my car." McDonald further testified that the following day, after posting bond, he returned home and found a search warrant on the dining table in the very same position he had left it the previous day but that this warrant contained a physical description of McDonald, the apartment number, and a judge's signature. The district court found, from the evidence received at the Motion to Suppress hearing, that "the facts asserted by the defendant are not believable," and that "the search warrant was in existence at the time of the search and properly presented" to McDonald at approximately 3:00 p.m. June 5, 1979, the time that police officers entered McDonald's apartment.
On January 4, 1982, McDonald filed a Motion for Rehearing on the Motion to Suppress claiming that he was denied "a fair and impartial hearing." The trial judge scheduled the Motion for Rehearing on January 6, 1982, the date set for trial in this matter, and at that time, McDonald filed a Motion for Continuance in order to obtain new counsel. The judge denied McDonald's motions for rehearing and continuance to obtain new counsel but did allow a continuing motion for mistrial on the basis of incompetent counsel.*fn3
On January 27, 1982, the jury returned a verdict of guilty on all sixteen counts. On February 1, 1982, the trial judge, in response to the continuing motion for mistrial on the basis of incompetent counsel, ruled that "at no time during the trial did I believe that [defendant's counsel] was incompetent or that his representation of the defendant had fallen below the 'minimum standard of professional representation. '" On February 23, 1982, the trial judge entered judgment on the verdict and, the following day, sentenced McDonald to ten years in prison.*fn4
On appeal, McDonald contends:
A. That the district court erred by not allowing a Franks hearing on the Motion to Suppress.
B. That the search of appellant's apartment did not fall within the "plain view" exception to the search warrant requirement.
C. That appellant was denied his sixth amendment right to effective assistance of counsel.
We shall consider these issues individually.
Appellant McDonald contends that the evidence presented at the hearing on the Motion to Suppress entitled him to a hearing under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) ("Franks"). A Franks hearing affords a defendant the opportunity to show, by a preponderance of the evidence, that the warrant affidavit contained perjury or a reckless disregard for the truth. If the defendant meets this burden, the court will set aside that "false material" contained in the warrant affidavit, and if probable cause cannot be established from the valid ...