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United States v. Wallace

February 11, 2002


Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:99CR131--James T. Moody, Judge.

The opinion of the court was delivered by: Flaum, Chief Judge.

Argued January 15, 2002

Before Flaum, Chief Judge, and Coffey and Easterbrook, Circuit Judges.

Willie T. Wallace pled guilty to one count of violating 18 U.S.C. sec. 922(g)(1) (felon in possession of a firearm) without the benefit of a plea agreement. Before entering his plea, Wallace moved the district court to suppress evidence. The district court held a hearing and denied the motion. After pleading guilty, but before sentencing, Wallace moved to dismiss the indictment in its entirety. The district court denied this motion as well. Wallace appeals, challenging these rulings and several sentencing enhancements. For the reasons stated herein, we affirm.

I. Background

A. The Predicate Felony

On March 26, 1998, Wallace was convicted in the Circuit Court of Cook County for unlawful use of a weapon, which, at the time, was a Class 4 felony in Illinois. However, Wallace's conviction was later vacated as void ab initio when the Supreme Court of Illinois ruled that the Act that had transformed the unlawful use of weapon ("UUW") charge from a misdemeanor to a felony violated the Illinois Constitution. See People v. Cervantes, 723 N.E.2d 265 (Ill. 1999). As a result, the Circuit Court of Cook County entered a misdemeanor conviction nunc pro tunc.

B. Wallace's Subsequent Activity

The current appeal arises from two events that occurred after the initial felony, but before the Circuit Court vacated the conviction in May 2000. On April 10, 1999, Hammond Police Officer Michael Serrano responded to a call concerning an armed robbery. The robbery victim described the suspect as wearing a red sweatshirt and black pants and stated that he recognized the suspect from a particular neighborhood in East Hammond, Indiana. Based upon this description, Serrano identified Wallace, who was wearing a red sweatshirt and black pants, as Wallace stood with approximately six other individuals on residential property. Serrano approached the group with his gun drawn (the victim had stated the suspect was armed) and asked all of the individuals to place their hands on the hood of a car parked in the driveway. Serrano patted down Wallace and arrested him after discovering a .38 caliber revolver.

The second incident occurred on May 9, 1999. At approximately 2:35 a.m., officers were dispatched to a nightclub in East Chicago to ensure the peaceful dispersion of the club's guests. While there, Officer Nicholas Kokot observed Wallace remove an assault rifle from the trunk of a white Cadillac and place it in the left rear passenger compartment of the car. Officers stopped the vehicle and arrested Wallace and two other occupants for possession of an AK-47. After determining that the weapon belonged to Wallace, officers released the other individuals.

C. Proceedings

On September 16, 1999, a federal grand jury returned a two-count indictment against Wallace. Both counts charged Wallace with violations of 18 U.S.C. sec. 922(g)(1) (felon in possession of a firearm). Wallace initially pled not guilty, and the district court scheduled a jury trial for November 15, 1999. Subsequently, Wallace moved to postpone his trial date on three separate occasions (November 3, 1999; January 5, 2000; March 14, 2000). The magistrate judge assigned to hear Wallace's pre-trial motions granted each continuance, and the district court ultimately scheduled a jury trial for March 22, 2000.

On March 9, 2000, Wallace filed a motion to suppress evidence stemming from both incidents. The district court held a suppression hearing on the day trial was scheduled to begin. After hearing witnesses, the district court credited the officers' testimony regarding each event, holding that Officer Serrano had a legitimate basis to pat down Wallace and his companions and that Officer Kokot observed the illegal activity on May 9. Accordingly, the district court denied Wallace's motion to suppress. Trial was set to begin soon thereafter.

Immediately prior to the trial, and after the district court had assembled potential jurors, Wallace indicated that he wanted to plead guilty to Count I of the indictment. Citing a local rule, the district court commented that all plea agreements must be entered into at least five days prior to the beginning of trial. Wallace's counsel responded that two related events caused the failure to comply with the local rule: (1) the district court scheduled the trial earli er than the parties had anticipated when Wallace moved for a continuance before the magistrate judge; and (2) an earlier plea agreement proffered by the government contained typographical errors indicating Wallace was pleading guilty to both Counts I and II. Upon further questioning from the district court, Wallace's counsel conceded that the government returned a ...

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