In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES A. DRAKE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 03 CR 83—Theresa L. Springmann, Judge.
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ARGUED JUNE 14, 2006—DECIDED AUGUST 8, 2006
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Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. A jury found James Drake guilty
of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1),
and the district court sentenced him before the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220
(2005), to 103 months’ imprisonment and 3 years’ super-
vised release. Drake appeals, arguing that the gun should
have been suppressed and that the court committed plain
error when it instructed the jury regarding his two prior
felony convictions. He also argues that his case should
be remanded under United States v. Paladino, 401 F.3d 471
(7th Cir. 2005). We affirm Drake’s conviction, but order a
limited remand to determine whether the court would have
2 No. 04-4240
given Drake the same sentence under an advisory Guide-
lines regime.
I.
The Fort Wayne Police Department received an emer-
gency 911 call on August 22, 2002, reporting that two
groups—four black men in a Cadillac and two women in a
LeSabre—were involved in a disturbance and that each
group had a gun. The caller, who used a cellular telephone
and was watching the events develop from a nearby car,
witnessed the occupants exit their vehicles and reported
that one of them “pulled a gun on my son-in-law.” She then
saw the two groups drive away and described the cars, the
occupants, and their location, and asked the 911 operator if
police had been sent. Detective Chad Wagner and Trainee
Officer Jessica Melzoni were dispatched to the scene. The
transcript of the 911 call shows that the caller was then
asked her name, and that she responded: “Police coming
down the street. My name is Linda Williams . . . .” Two
minutes after they first received the dispatch, Wagner and
Melzoni observed and stopped a Cadillac near the location
provided by Williams. A third officer, James King, arrived
shortly after the stop and assisted Wagner and Melzoni.
The officers recovered a revolver from the floorboard
beneath the feet of Drake, the driver.
Drake moved prior to trial to suppress the gun. He argued
that the 911 caller was “anonymous” when she provided the
information relied on by the officers, and that her call
therefore lacked the indicia of reliability necessary to
initiate the stop. Detective Wagner testified at a hearing on
Drake’s suppression motion that, after stopping the Cadil-
lac, he approached it from the passenger side and, consis-
tent with the description provided by the 911 caller, saw
that the vehicle had a temporary paper license plate. Officer
King testified that the officers, fearing that one of the
No. 04-4240 3
occupants was armed, ordered the four black men in the
vehicle to place their hands on the seats or dashboard. King
further testified that while opening the driver’s door he saw
a .357 revolver on the floorboard beneath Drake’s feet. The
four men were removed from the vehicle, and the officers
then identified Drake as the driver. A second gun was also
found, but Drake was charged with possessing only the gun
at his feet.
The district court, distinguishing Florida v. J.L., 529 U.S.
266 (2000) (holding that uncorroborated anonymous tip was
insufficient to justify an investigatory stop of individual
suspected of possessing a gun), denied Drake’s suppression
motion. The court first noted that the caller was not wholly
anonymous because she had identified herself as the
mother-in-law of a man who was being threatened with a
gun by the occupants of the vehicles. More importantly,
though, the court thought it significant that the caller was
not only providing a tip, but also reporting an ongoing
emergency. The court reasoned that the caller’s lack of true
anonymity, the need for the police to respond immediately
to the emergency she reported, her proximity to the scene
of the emergency, and the fact that her call was being
recorded were all factors that increased the probable
reliability of the report and thus gave the officers reason-
able suspicion to stop the Cadillac based on the call. And
having concluded that, the court also held that the officers
were entitled to remove the suspects from the car, which led
to the discovery of the gun in plain view.
At trial Detective Wagner testified that Drake said at the
time of the stop that the gun belonged to his sister, and that
he had taken it from her so that she would not get in
trouble. Special Agent Sean Skender of the Bureau of
Alcohol, Tobacco, Firearms and Explosives testified that he,
along with Agent John Phinney, also interviewed Drake.
According to Agent Skender, Drake told them, after receiv-
ing the Miranda warnings, that the gun belonged to his
4 No. 04-4240
fellow passenger, Scott Brewer. Drake explained to the
agents that he had gone to his sister’s house, where she had
been involved in an altercation with an unnamed
man. After Drake left her house he was stopped by the
police. He indicated to Skender that his sister had told
him to tell the police officers that the gun was hers, but he
did not explain how his sister could have known that he
would be stopped by the police, or that a gun allegedly
belonging to another of the Cadillac’s passengers would
be found at his feet.
Only Drake testified in his defense. He admitted that
he was a convicted felon, but disclaimed taking responsibil-
ity for the gun at the time of the stop. To the contrary, he
testified that he did not know who the gun belonged to. He
also testified that the officers did not mention the gun in
the Cadillac until after they had removed him and the three
passengers. And, he denied telling Agent Skender that the
gun belonged to Brewer. During cross-examination Drake
admitted having been convicted of felonies in March 1995
and August 1998. He also testified that he did not tell
Skender that his sister encouraged him to attribute the gun
to her.
II.
Drake raises three issues on appeal. First, he argues that
the district court should have suppressed the gun because,
he contends, the information provided by the 911 caller was
unreliable. Second, he suggests that the court erred by
instructing the jury that evidence of a stipulated prior
conviction could be considered with regard to all of the
elements of § 922(g)(1), rather than as to felon status only.
Finally, he argues that the district court erred in applying
the Sentencing Guidelines as mandatory even though he did
not object, and that as a consequence he is entitled to a
limited remand under Paladino.
No. 04-4240 5
A. Admission of the Gun
Though both Drake and the government—as well as the
district court—approach the admission of the gun from the
supposition that the police acted on an anonymous tip, their
arguments are based on an incorrect reading of the 911
transcript. When Williams called to report an ongo-
ing emergency, the 911 operator first collected the informa-
tion necessary to promptly dispatch the police and only then
asked Williams to identify herself. Williams iden-
tified herself to the 911 operator the very first time she was
asked for her name. Indeed, Williams gave her name in the
same breath that she told the operator that she saw the
police coming down the street. According to Detective
Wagner, only minutes passed from the time the 911 opera-
tor first relayed the description of the suspects to the time
the Cadillac was stopped. When law enforcement officers
are in communication with one another, the question
whether they possess reasonable suspicion for a stop turns
on their collective knowledge, United States v. Lenoir, 318
F.3d 725, 728 (7th Cir. 2003); United States v. Sawyer, 224
F.3d 675, 680 (7th Cir. 2000), and thus it is incorrect to
describe the police as having acted on an anonymous tip in
this case. Here, the police relied on Williams’s contempora-
neous eyewitness report of an emergency situation. Wil-
liams may have been an informant of untested reliability,
but she was not anonymous. Thus, this case is not governed
by Florida v. J.L.
Nevertheless, the stop of the Cadillac was justified only
if Williams’s 911 report of an emergency situation pro-
vided the police with reasonable suspicion. See United
States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005); United
States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005). We hold
that it did. Officers may conduct an investigatory stop of a
vehicle if articulable facts support a reasonable suspicion
that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1
(1968); Baskin, 401 F.3d at 791. Here, we recognize the
6 No. 04-4240
particular duty of police officers to speedily respond to
emergency situations reported by individuals through the
911 system. Cf. United States v. Richardson, 208 F.3d 626,
630 (7th Cir. 2000) (“A 911 call is one of the most com-
mon—and universally recognized—means through which
police and other emergency personnel learn that there is
someone in a dangerous situation who urgently needs help.
This fits neatly with a central purpose of the exigent
circumstances (or emergency) exception to the warrant
requirement, namely, to ensure that the police or other
government agents are able to assist persons in danger or
otherwise in need of assistance.”); United States v.
Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004) (“Police
delay while attempting to verify an identity or seek corrobo-
ration of a reported emergency may prove costly to public
safety and undermine the 911 system’s usefulness. . . . The
Fourth Amendment does not require the police to conduct
further pre-response verification of a 911 caller’s identity
where the caller reports an emergency. Accordingly, an
emergency 911 call is entitled to greater reliability than an
anonymous tip concerning general criminality.”) Even in the
case of anonymous callers, two of our sister circuits have
afforded eyewitness 911 reports of ongoing emergency
situations the same treatment. See Anthony v. City of New
York, 339 F.3d 129, 136-37 (2d Cir. 2003) (anonymous 911
call placed from verifiable address justified warrantless
entry based on exigent circumstances, where caller “ex-
pressed an immediate risk of harm to herself”); United
States v. Holloway, 290 F.3d 1331, 1338-39 (11th Cir. 2002)
(“[W]hen an emergency is reported by an anonymous caller,
the need for immediate action may outweigh the need to
verify the reliability of the caller.”). We therefore presume
the reliability of an eyewitness 911 call reporting an
emergency situation for purposes of establishing reasonable
suspicion, particularly when the caller identifies herself. It
is enough in this case that Williams’s 911 call reported an
immediate threat to public safety and that she provided
No. 04-4240 7
sufficient details to allow the officers to identify the sus-
pects. The police, when they located the Cadillac Williams
described, were not confronted with any reason to doubt her
report, and thus the presumption remained intact. Requir-
ing further indicia of reliability would only jeopardize the
usefulness of the 911 system and the ability of officers to
prevent further danger to the public.
B. Jury Instruction Regarding Prior Convictions
Drake next argues that the district court’s instruction
to the jury regarding the appropriate use of evidence of his
prior conviction was clearly erroneous. Instruction 11
informed the jury:
You have heard evidence that the Defendant was
convicted of a felony crime punishable by imprisonment
for a term exceeding one (1) year. You may consider this
evidence in your determination of the elements of the
gun charge in the indictment. You have also heard
evidence that the Defendant was convicted of a crime in
1995. You may also consider this evidence in deciding
whether the Defendant’s testimony is truthful in whole,
in part, or not at all. You may not consider this evi-
dence for any other purpose.
(emphasis added). A prior felony conviction, he argues, can
be used only to prove a defendant’s status as a felon (the
first element of the § 922 charge), not to show he possessed
the gun (the second element of the charge), and thus the use
of the plural ‘elements’ was erroneous. Drake concedes that
he never objected to this instruction at trial, but he blames
the court for that omission: “The district court certainly was
instrumental in leading the defendant to think that there
was nothing to object to, because this instruction was to be
rewritten by the court after extended discussion as to the
charges required.” But this statement is without foundation
in the record. As the government points out, Drake’s
8 No. 04-4240
counsel reviewed the instruction after a conference and
stated on the record that Drake did not object to the portion
of the instruction he now challenges. Counsel did ask the
court to add one sentence, which appears as the final line in
the instruction: “You may not consider this evidence for any
other purpose.” We cannot agree that the court misled
Drake.
Moreover, Drake did more than simply fail to object; his
acceptance of the jury instruction while at the same time
proposing an additional sentence unrelated to his basis
for appeal could constitute waiver. See United States v.
Darif, 446 F.3d 701, 711 (7th Cir. 2006). The government,
though, has not argued waiver and so we will analyze this
argument, as do the parties, under the plain-error standard.
See United States v. Pree, 408 F.3d 855, 872 (7th Cir. 2005);
United States v. Gee, 226 F.3d 885, 894 (7th Cir. 2000). Of
course, no matter the standard, we analyze the allegedly
erroneous instruction within the context of all of the
instructions given to the jury to determine whether an
inaccurate characterization of the law was conveyed. See
Molnar v. Booth, 229 F.3d 593, 602 (7th Cir. 2000); United
States v. Madoch, 149 F.3d 596, 599 (7th Cir. 1998).
Here, the instructions as a whole did not convey to the
jury that it could consider Drake’s prior felony convic-
tions when deciding whether he possessed the gun, the
error of law Drake asserts. Instruction 17 explained the
elements of the § 922 charge:
To sustain the charge of felon in possession of a
firearm as charged in the Indictment, the government
must prove the following propositions:
First: that prior to August 27, 2002, the Defendant
had been convicted of a crime that was punishable by a
term of imprisonment of more than one (1) year;
Second: that on or about August 27, 2002, the Defen-
dant knowingly possessed a firearm, to wit: a Dan
No. 04-4240 9
Wesson, .357 magnum revolver, serial number 92703;
and
Third: that the firearm possessed by the Defendant
had traveled in or affected interstate commerce prior to
defendant’s possession of it on that date.
If you find from your consideration of all the evidence
that each of these propositions has been proven beyond
a reasonable doubt, then you should find the Defendant
guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that any of these propositions
has not been proved beyond a reasonable doubt, then
you should find the Defendant not guilty.
This instruction accurately describes the government’s
burden in a § 922(g)(1) prosecution, see United States v.
Wallace, 280 F.3d 781, 784 (7th Cir. 2002), and thus the
question is simply whether Instruction 17 is undermined by
Instruction 11. Drake suggests this happened because—in
closing argument—the prosecution tried to link his prior
convictions to his possession of the gun:
You know, the fact of the matter is, is that when you
look at all the evidence in its totality, take pieces here
and pieces there, put it together, look at the circum-
stantial evidence, it’s clear. It’s no question the defen-
dant, twice convicted felon, look at his credibility.
Consider that as well, and I think you’ll find, as the
government has proven to you beyond a reasonable
doubt, is that the defendant is guilty as charged in the
Indictment.
But use of the plural “elements” in Instruction 11 did not
direct the jury to consider Drake’s prior felonies as evidence
that he possessed the gun. And the government’s closing
seems only to suggest that the testimony of a “twice con-
victed felon” is not credible, which is a permissible inference
10 No. 04-4240
to draw from evidence of prior convictions, see United States
v. Montgomery, 390 F.3d 1013, 1015-16 (7th Cir. 2004);
United States v. Hernandez, 106 F.3d 737, 740 (7th Cir.
1997). If Drake really means to make an argument under
Federal Rule of Evidence 404(b), the concern of that rule
has nothing to do with the elements of the offense; the
concern is that the jury will convict on the assumption that
someone who committed a crime before probably is guilty
now. But Instruction 11 raises no such concern; it tells the
jury to limit consideration of the prior-conviction evidence
to the elements of the offense, so there is no danger of
misuse.
Regardless, the submission of an incorrect instruction
is harmless if the jury, properly instructed, would have
returned the same verdict. See United States v. Pittman,
418 F.3d 704, 707 (7th Cir. 2005); United States v. Folks,
236 F.3d 384, 390 (7th Cir. 2001). Here, there was ample
evidence of Drake’s guilt. Officer King testified at trial that
he saw the gun in plain view at Drake’s feet when he
opened the Cadillac’s door. Detective Wagner testified
that Drake stated at the time of the stop that he had taken
the gun from his sister, and Officer Melzoni testified that
she recorded Drake’s statement on her incident report.
Though Agent Skender testified that Drake told him in
an interview following his arrest that the gun belonged to
another of the Cadillac’s passengers and Drake attempted
to disclaim his statement at the scene of the stop, the jury
was left with the unequivocal testimony of three police
officers and a contemporaneous incident report, all support-
ing Drake’s possession of the gun. The potentially erroneous
instruction, given the weight of the evidence against Drake,
could not have affected the jury’s verdict. See Pittman, 418
F.3d at 708.
No. 04-4240 11
C. Paladino Limited Remand
Finally, Drake argues that the district court committed
plain error by applying the Sentencing Guidelines as
mandatory prior to the Supreme Court’s decision in Booker.
The government concedes that a limited remand
is appropriate because the record on appeal is not adequate
to assure us that the district court would have imposed the
same sentence had it known the Guidelines were advisory.
We agree.
III.
We order a LIMITED REMAND under Paladino, to deter-
mine whether the district court would have issued the same
sentence under an advisory Guidelines regime. In all other
respects, the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-06