Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93-CR-720--Paul E. Plunkett, Judge.
Before CUDAHY, FLAUM and EASTERBROOK, Circuit Judges.
DECIDED NOVEMBER 27, 1995
Following a jury trial Jerry Butler was found guilty of knowingly possessing a firearm having previously been convicted of a felony, in violation of 18 U.S.C. sec. 5861(h), and of possessing a firearm with an obliterated and removed serial number, in violation of 18 U.S.C. sec. 5871. He appeals these convictions on several grounds. We affirm.
The facts of Butler's arrest are simple. At 6:20 a.m. on January 29, 1993, thirty to forty Chicago police officers, pursuant to a search warrant, raided the three flat residence at 1352 Laramie in Chicago, Illinois. The residence was the headquarters of reputed gang leader Willie Lloyd. When the officers entered the first floor apartment, they observed three male subjects asleep in the living room; one of these subjects was the defendant Jerry Butler. Officer George Figueroa roused Butler from the couch. On the couch, directly under where Butler was sleeping, the officer found a .25 caliber semi-automatic pistol with an obliterated serial number wrapped in a stocking cap. Knowing Butler was a convicted felon, the officer placed him under arrest for possession of a firearm. *fn1
The events leading up to Butler's arrest are more complicated. The raid, during which Butler was arrested, was the culmination of almost four weeks of intense police surveillance at the three flat on Laramie. The police interest in the residence stemmed from the recent arrival of Willie Lloyd, self-proclaimed leader of the Chicago gang the Unknown Vice Lords. Lloyd was released from Logan Correctional Center on December 30, 1992. From the day of Lloyd's release through the day of the raid, the police closely monitored the daily activities at the Laramie residence. The surveillance and other information gathered by the gang crimes unit led officers to conclude that Willie Lloyd, along with his girlfriend and baby son, lived in the second floor apartment, while fellow gang members and Lloyd minions used the first floor apartment as a security checkpoint. The police observed first floor residents "screening" visitors to the building, i.e., residents were seen looking out first floor windows to identify persons at the front door before allowing them to enter. It also appeared to be first floor residents who were frisking visitors to the building and standing guard, in numbers of eight to twelve, when the gang leader entered and exited the building. On at least two occasions the week before the raid Butler was seen at the Laramie house acting in a security capacity. There was also testimony at trial that Butler lived on the first floor and was one of two gang members in charge of organizing and enforcing security for Lloyd.
During surveillance on January 26, 1993, Officer Eldon Urbikas observed Lloyd exit the house surrounded by his protective entourage of eight to twelve men. While Lloyd was outside, one of his men retrieved a B/S semi-automatic pistol, dark in color with a four inch barrel, from a car and handed it to him. Officer Urbikas immediately dispatched two squad car officers to the house, but the officers were unable to reach Lloyd while he was still in possession of the firearm. Officer Urbikas watched Lloyd hand the gun to an unknown person inside the house, who quickly took the gun into the house as the squad car officers approached. In order to discover the gun seen in Lloyd's possession, the police decided to seek a search warrant for the Laramie house.
To obtain the search warrant, Officer Michael Cronin, a member of the gang crimes unit and of the Laramie surveillance team, swore out an affidavit explaining why he believed there was probable cause to search the entire Laramie house--including the first and second floor apartments. The affidavit was based on the events observed by Officer Urbikas on January 26th, the general information the police had gathered regarding the use of the entire building by Lloyd and his security guards, as well as on Officer Cronin's twelve years of experience working in the gang crimes unit. Magistrate Judge Morrisey issued a warrant for the entire building based on Officer Cronin's affidavit, and pursuant to that warrant, the search was conducted that lead to Jerry Butler's arrest.
Prior to his trial, Butler filed a motion to suppress all of the evidence obtained from the first floor search. He claimed the search warrant was unconstitutionally overbroad since there was no probable cause to search the first floor apartment. Following a hearing, Magistrate Judge Ronald A. Guzman recommended that the motion be denied. The district judge, over Butler's objections, adopted the Magistrate's recommendation and denied the suppression motion. Butler also objected to the government's motion in limine to introduce evidence concerning Butler's gang membership and activities. The government sought to introduce evidence of the police surveillance and Butler's gang tatoo, as well as the testimony of fellow, immunized gang member Rick Powell. Butler argued that any probative value of this evidence was substantially outweighed by its unduly prejudicial nature. The district judge, however, granted the government's motion, with the condition that the proper name of the gang and gang leader not be used and that a limiting instruction be given. *fn2
Following the disposition of the suppression motion and motion in limine, a jury trial was held. During the trial Butler sought to admit into evidence, as declarations against interest by an unavailable witness, the hearsay statements of Thomas Dixon (the individual found in the living room with Butler who was not charged with any crime). Butler intended to call Dixon to testify, however, Dixon left the state before the trial started and could not be found, despite efforts by the defense. Prior to his disappearance though, Dixon gave a statement to a defense investigator in which he claimed that he and Alex Wells (the other individual found in the living room with Butler) arrived at 1352 Laramie about thirty minutes before the raid. Butler let them into the house and retired to the bedroom, while Dixon and Wells laid down in the living room. According to Dixon, this was where the three were located when the police arrived; only after the police were in the apartment did Butler enter the living room. The police then ordered the three men up against the wall, and although Dixon could not see the officers, he stated that he heard an officer exclaim that he had found guns and that they should give them to the felons. The district court held the testimony was inadmissible, concluding that the statement was not sufficiently against Dixon's penal interest.
During closing argument, Butler's attorney argued that Officer Figueroa, the officer who arrested Butler, had planted the gun on Butler because he knew of his previous felony conviction. He claimed that Officer Figueroa's account of what happened should not be trusted since Officer Figueroa had been suspended once before for assaulting several gang members and planting evidence on them. In rebuttal, the prosecutor argued that what Officer Figueroa had done in the past was irrelevant to Butler, and that the defense was only attempting to smear the officer. He then stated:
Now, the government has the burden of proof. The government has the burden of presenting evidence. That said, there's nothing preventing Mr. Murphy [defense counsel] from presenting any evidence in this case. It is a trial. And if he had any evidence that ...