Argued April 22, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 cr 552—Charles R. Norgle, Judge.
Before Wood, Tinder, and Hamilton, Circuit Judges.
Wood, Circuit Judge.
Harvey Robinson was asleep on his grandmother's living room sofa when Chicago police officers conducted an early-morning search of her apartment. They were looking for evidence that Robinson was selling marijuana from the premises. After a thorough search, police officers found less than two grams of marijuana, but they also recovered a loaded revolver lying in a laundry basket by the front door. According to police officers, Robinson twice admitted—at the time of the gun's discovery and during a later stationhouse interrogation—that the revolver was his; Robinson denies making such statements. After lengthy deliberations a jury convicted Robinson of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
On appeal Robinson raises numerous issues, only three of which require resolution here. He argues first that the revolver should have been suppressed because the warrant authorizing the search was not supported by probable cause. Next, he urges that the district court should have conducted a Franks hearing to assess whether police officers knowingly or recklessly sub-mitted false information in support of the warrant application. Finally, he contends that the court committed reversible error by refusing to give a requested limiting instruction about his prior felony conviction. Robinson's first two arguments are unavailing, but because the district court erred by failing to give a proper limiting instruction and that error was not harmless, his conviction must be vacated.
Robinson came to the attention of Chicago police officers through a tip provided by an anonymous informant, referred to in court filings only as "John / Jane Doe." (We will use the masculine pronoun for convenience.) According to the search warrant complaint, Doe and an individual named "Tookie" had known one another for approximately eight months. In September 2010, Doe said that he bought marijuana from Tookie approximately one dozen times, with each sale occurring inside Tookie's first-floor apartment at 1453 S. Springfield. During the final transaction, which occurred on September 30, 2010, Doe noticed that Tookie had several more large bags of marijuana on a bookshelf in the hallway. In order to confirm that the leafy green substance Tookie provided was, in fact, marijuana (and perhaps for his own recreation), Doe smoked some of the goods purchased that day before talking to police officers.
Later that afternoon, City of Chicago police officer Griselda Elizondo took Doe past 1453 S. Springfield in a police vehicle. Doe confirmed that this was the apartment building where Doe purchased marijuana from Tookie. Elizondo then showed Doe photographs from a Chicago police database, and Doe identified a picture of the defendant, known by Chicago police to use the nickname "Tookie, " as his marijuana-selling acquaintance. As explained in greater depth below, however, the precise method by which this identification took place is unclear from the record, and such details are critical in assessing the probative value of Doe's identification of Robinson.
Doe and Elizondo then appeared before a judge of the Circuit Court of Cook County, making themselves available for questioning and reciting the facts summarized above in a sworn complaint. No transcript of this proceeding appears in the record, and there is no indication that the court asked Doe any questions. Rather, the judge found that the complaint "state[d] sufficient facts to show probable cause" and issued a search warrant for Harvey Robinson, a.k.a. "Tookie, " and the first-floor apartment at 1453 S. Springfield.
Shortly before 6:00 the next morning, nine or ten Chicago police officers conducted the planned search. Present at the time were Robinson, his grandmother (who opened the door for the police), his uncle and aunt, and his aunt's boyfriend. Sergeant Ronald Blas, the "search team supervisor, " testified that he was the last police officer to enter the premises. Apparently, he was the first to notice a large silver revolver (a .44-caliber Ruger Super Redhawk) lying on top of a laundry basket immediately next to the front door (see photograph, post at 19). After noticing the gun, Blas walked over to Robinson, who had been asleep on a sofa in the dining room, read Robinson his Miranda rights, and asked Robinson "if there was anything in the residence that shouldn't be [t]here." According to Blas, Robinson answered either, "Yes, that's my gun, " or "The gun that's in the laundry basket."
Robinson filed a pre-trial motion seeking to suppress the gun. The court indicated that there likely was probable cause supporting the search warrant, though it stopped short of making such a determination. Instead, it held that suppression was improper because the officers were entitled to rely on the warrant in good faith.
After the early morning search, Robinson was taken to a nearby police station, where he was interrogated by Elizondo and another Chicago police officer, Nina Moore. At trial, Moore and Elizondo both testified that Elizondo advised Robinson of his Miranda rights a second time, after which Robinson reconfirmed that the gun belonged to him. The officers recalled that Robinson stated that he purchased the gun several months earlier after overhearing two people discussing the weapon at a gas station near the intersection of West 111th and South State Streets. Robinson (they continued) admitted that he bought the gun for $200 from the owner inside a nearby Wendy's restaurant soon after.
Robinson's wife and grandmother testified for the defense. Both stated that they had never seen Robinson with a gun, and that they did not believe that the recovered revolver was his. Robinson's grandmother also testified that her daughter's boyfriend, who was staying in the apartment at the time of the search, had a criminal history. On cross-examination, the government elicited some minor concessions from the witnesses: Robinson's wife acknowledged that Robinson used to hang out on Chicago's South Side, in the general vicinity of W. 111th St. and S. State St., and Robinson's grandmother confirmed that she heard one of the officers announce during the search that he had discovered a gun. Robinson did not testify.
Before closing arguments, the parties agreed on the following jury instruction, which was modeled on Seventh Circuit Pattern Instruction 3.04, addressing Robinson's stipulation that he had a prior felony conviction:
You have heard evidence that prior to October 1, 2010, defendant Harvey Robinson was convicted of a felony offense. You may consider this conviction on the question of whether the government has proved that, prior to October 1, 2010, the defendant had been convicted of a crime that was punishable by a term of imprisonment of more than one year. You should consider this evidence only for this limited purpose.
When the court instructed the jury orally, however, it left off the final sentence ("You should consider this evidence only for this purpose."). Both Robinson and the government immediately flagged the omission, and Robinson urged the court to recall the jury to give the complete limiting instruction orally. The court originally explained that it failed to read the final sentence because it thought the limiting instruction was proper only if Robinson had taken the stand in his own defense. Apparently reconsidering this position, the court then expressed concern that recalling the jury would draw undue attention to a single instruction. Ultimately the court refused Robinson's request, but it emphasized that the jury would receive a complete set of the written instructions as they deliberated.
The jury met for almost five hours before asking to adjourn for the day. The court granted this request and instructed the jury to "reread all instructions" before they resumed their work. On the next day of deliberations, the jury met for another five hours, at which point they signaled that they were having trouble reaching consensus. Again, the court told the jurors to "reread all instructions and continue to deliberate." About an ...