In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3307

United States of America,

Plaintiff-Appellee,

v.

Louis J. Wesela,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-24--Rudolph T. Randa, Judge.


Argued January 18, 2000--Decided August 3, 2000




      Before Easterbrook, Kanne, and Diane P. Wood, Circuit
Judges.

      Diane P. Wood, Circuit Judge.

I

      At approximately 1:15 a.m. on Tuesday, January
26, 1999, the Milwaukee Police Department
received a 911 call from Mrs. Elizabeth Wesela.
She told the operator that her husband, Louis
Wesela, had a gun, had been threatening to kill
her, and had shot and killed a family cat. Mrs.
Wesela reported that her husband had fallen
asleep, and she asked the police to come to her
home.

      When the police arrived, Mrs. Wesela admitted
them to the couple’s apartment. The officers
asked where the man with the gun was; Mrs. Wesela
responded that he was in the bedroom, and she
volunteered that the gun was next to him on the
bed. The police found Louis Wesela laying on the
bed in the bedroom. After getting him up, the
police ordered him out of the room and placed him
under arrest. One officer then searched the
bedroom for the gun and found it on a table under
a pile of clothes. While in the bedroom, the
officer noticed a pair of white tennis shoes
stained with a drop of blood as well as a blood
stain on the carpet. The officer then looked
under the bed and saw cat feces against the wall.
After the bedroom search, Wesela was taken to the
hospital for medical treatment.

      Detectives Schmitz and Corbett arrived at the
Wesela home at 2:15 a.m. After a uniformed police
officer briefed them, Detective Schmitz
interviewed Mrs. Wesela in the apartment’s living
room. During the half-hour interview, Mrs. Wesela
explained that she and her husband had been
arguing since Sunday (January 24, 1999). She told
Detective Schmitz that her husband had threatened
to kill her. During the argument, he had behaved
violently: he confronted an upstairs neighbor
with the gun, shot the gun into the ceiling, and
shot and killed one of the family’s cats. Mrs.
Wesela explained that he threw the dead cat in
the garbage container behind the apartment
building. After preparing himself a drink, Wesela
went to sleep at around 10:00 p.m. Mrs. Wesela
waited in the living room until she was certain
he was sleeping. She then called the police.

      As Detective Schmitz spoke with Mrs. Wesela,
Detective Corbett went about collecting evidence.
He did not ask Mrs. Wesela for permission to
conduct the search, but Mrs. Wesela did not
object to what he was doing. A uniformed police
officer directed the detective to the evidence
that had been discovered prior to the detectives’
arrival. Detective Corbett found the dead cat in
the outside garbage bin as Mrs. Wesela had
reported and observed a trail of blood leading
from the container to the apartment’s back door.
He also located a bullet hole in the ceiling and
noted the location of the gun, ammunition, and
blood stain in the bedroom. Detective Corbett
also found an uncovered cardboard box in the
bedroom, with books, paperwork, and a box for a
Taurus .22 revolver inside. While searching the
bedroom, Detective Corbett overheard Mrs. Wesela
describe how her husband shot the cat while it
was underneath the bed. Detective Corbett then
looked under the bed, moved it away from the
wall, and found a bullethole in the baseboard
where the cat had been shot. He removed the
bullet.

      After a trial, Wesela was convicted of being a
felon in possession of a firearm in violation of
18 U.S.C. sec.sec. 922(g), 924(e). The only issue
disputed at trial was Wesela’s possession of the
firearm, as the parties stipulated that Wesela
had previously been convicted of a felony. Wesela
raises several issues in this appeal. Because any
errors made were harmless in the face of the
overwhelming evidence, we affirm Wesela’s
conviction.

II
      A. Constitutionality of the Felon in
Possession Statute

      Wesela first argues that one of the statutes
under which he was convicted, 18 U.S.C. sec.
922(g), is unconstitutional because it exceeds
Congress’s powers under the Commerce Clause. We
have already rejected this with respect to sec.
922(g). See United States v. Williams, 128 F.3d
1128 (7th Cir. 1997). Williams distinguished sec.
922(g) from the statute the Supreme Court
considered in United States v. Lopez, 514 U.S.
549 (1995), on the ground that sec. 922(g),
unlike the Lopez statute (18 U.S.C. sec. 922(q)),
specifically requires that the possession must be
"in or affecting interstate commerce." 128 F.3d
at 1133-34. Nothing in United States v. Morrison,
120 S. Ct. 1740 (2000), or in Jones v. United
States, 120 S. Ct. 1904 (2000), causes us to
think that a different result is now required for
sec. 922(g). In Morrison, the Court struck down
the Violence Against Women Act, 42 U.S.C. sec.
13981, on the ground that it exceeded Congress’s
power under the Commerce Clause, but the Court
was careful to note that the Act did not contain
a jurisdictional element. Morrison, 120 S. Ct. at
1751. In Jones, the Court held that the arson
statute, 18 U.S.C. sec. 844(i), covered only
arson of property that itself was currently used
in interstate commerce or in an activity
affecting commerce. Nothing in either case casts
doubt on the validity of sec. 922(g), which is a
law that specifically requires a link to
interstate commerce.


      B.   Motion to Suppress

      Before trial, Wesela filed a motion to suppress
evidence gathered from his apartment and
incriminating statements he made following his
arrest. The district court denied the motion and
allowed all of the evidence in. In reviewing a
district court’s denial of a motion to suppress,
we review findings of historical fact and
credibility determinations for clear error.
United States v. Johnson, 170 F.3d 708, 712-13
(7th Cir. 1999). We review de novo mixed
questions of law and fact such as determinations
of probable cause or reasonable suspicion. Id.,
citing Ornelas v. United States, 517 U.S. 690,
699 (1996).


      1.   Evidence Gathered During Searches

      Wesela first contests the legality of the
officers’ search for his gun immediately
following his arrest. His theory is that Mrs.
Wesela allowed the officers to enter her home for
one very limited purpose: to arrest him. He
contends that Mrs. Wesela did not consent to a
search for the gun, or, in the alternative, that
even if she impliedly consented to a search for
the gun, the officers exceeded the scope of that
implied consent. (He concedes that if the search
for the gun was permissible, then evidence of the
rest of the items discovered during that search,
such as the blood-stained tennis shoes, cat
feces, and blood stain on the rug, were
admissible under the plain view doctrine.) Wesela
also contests the admission of evidence related
to items found during Detective Corbett’s search
of the home (the bullet in the baseboard, the gun
box, and the shell casings). For the latter
search, he argues again that his wife did not
give her express consent and, because she was
being interviewed by Detective Schmitz while
Detective Corbett searched, she could not have
impliedly consented either.

      Following a hearing on the motion to suppress,
Magistrate Judge Gorence made several findings of
fact, which the district court adopted in their
entirety. The district court, however, drew
different legal conclusions from those findings.
Both judges agreed that Mrs. Wesela consented to
the police entry of her apartment to arrest her
husband and to search for the gun. The magistrate
judge, who found that the scope of her consent
was limited to looking for the gun, would have
suppressed the items Detective Corbett found,
because Mrs. Wesela never broadened her consent.
The district court saw things differently. It
concluded that Mrs. Wesela’s failure to object
constituted general consent to the search, and
all evidence discovered by Detective Corbett--the
documents in the gun box, the bullet in the
baseboard, and the two shell casings deep inside
the garbage bag--was admissible.

       Under the Fourth Amendment, the standard for
measuring the scope of an individual’s consent is
"objective reasonableness": "what would the
typical reasonable person have understood by the
exchange between the officer and the [person
giving consent]?" Florida v. Jimeno, 500 U.S.
248, 251 (1991). The scope of a search is
generally defined by its "expressed object." Id.
To determine whether a search was within the
boundaries of consent is determined according to
the "totality of all the circumstances." United
States v. Torres, 32 F.3d 225, 230-31 (7th Cir.
1994).

      We agree with the district court that these
facts demonstrate Mrs. Wesela’s consent to search
the apartment for both her husband and the gun.
She called the agents for the express purpose of
ridding her house of the threat posed by her
(armed) husband, and she allowed the officers to
enter her house in order to arrest him. At the
suppression hearing, one of the officers
testified that she consented to the officers’
entering the apartment to secure both the man and
the gun. Mrs. Wesela herself told the officers
where they could find the gun. The fact that
there was no direct verbal exchange between
Detective Corbett and Mrs. Wesela in which she
explicitly said "it’s o.k. with me for you to
search the apartment," is immaterial, as the
events indicate her implicit consent. Mrs. Wesela
was in the living room while the search was going
on in the bedroom; the bedroom was not visible
from the living room, but Detective Corbett was
able to overhear her description of events while
he was in the bedroom and she was able to hear
and respond to his question about the ownership
of the tennis shoes. Due to the proximity of the
rooms, Mrs. Wesela was probably aware of what was
going on in the bedroom and elsewhere in the
apartment. Had she wished to do so, she could
have objected to Detective Corbett’s search. See
United States v. Stribling, 94 F.3d 321, 324 (7th
Cir. 1996); Gerald M. v. Conneely, 858 F.2d 378,
884-85 (7th Cir. 1988).

      The district court reasonably concluded that
Mrs. Wesela at the very least implicitly
consented to the search. Had Detective Corbett
conducted an all-out search of the Wesela home,
perhaps the result would be different. But
everything he did was narrowly confined to
finding evidence related to the events of that
evening: the gun, the bullets, the shell casings,
and the dead cat. He did not go through drawers,
rummage through closets, or search other rooms of
the house in an attempt to find drugs, money, or
any other extraneous evidence of other possible
illegal activities. Under the circumstances here,
the court did not err in denying Wesela’s motion
to suppress.

      2.   Post-Arrest Statements

      After his arrest, Wesela made two statements to
the police that he argues should have been
suppressed. He made the first one on the morning
of January 26, 1999, during questioning by
Detective Corbett. The detective read Wesela his
Miranda rights and asked him if he understood
them. After responding that he did, Wesela asked,
"Could I get a lawyer?" Detective Corbett
responded that he could not call one for
him.Wesela then stated, "I can’t call one either.
All right here’s what happened." Wesela then
described the events leading to his arrest.

      Wesela made more incriminating statements on
February 1, 1999, to Special Agent Darin ("SA
Darin") of the United States Bureau of Alcohol,
Tobacco and Firearms. SA Darin had the job of
transporting Wesela to the federal courthouse in
Milwaukee for his initial appearance. En route,
SA Darin gave Wesela a copy of the criminal
complaint and explained federal court procedures
to him. Wesela made an unsolicited comment to SA
Darin, who responded that he was not going to
advise Wesela of his Miranda rights and that he
did not want to discuss the facts of the case.
Later that day, SA Darin escorted Wesela to a
courtroom. As they were waiting outside the
courtroom on a bench, Wesela again began talking
about the facts of the case. SA Darin again
warned Wesela that he did not want to talk about
the facts of the case, and he told Wesela that he
might have an appointed attorney already.
Undeterred, Wesela then described his argument
with his wife and (in great detail) why and how
he had shot the cat.

      Wesela argues that his statements to SA Darin
should have been suppressed as fruits of the
poisonous tree (the alleged poisonous tree being
Detective Corbett’s initial statement he could
not get a lawyer for him, in lieu of leaving
Wesela alone). The first problem Wesela faces is
that, under Duckworth v. Eagan, 492 U.S. 195, 201
(1989), there was no poisonous tree here.
Detective Corbett’s statement was similar to the
one the Court found acceptable in Eagan, where
the police told the defendant that he had a right
to a lawyer, but that they had no way of giving
him one. Id. at 198. Furthermore, even if some
distinction between this case and Eagan could be
found (if, for instance, that particular part of
the case were seen as dicta), Wesela’s statements
were still admissible under Brown v. Illinois,
422 U.S. 590 (1975). Brown identifies a number of
factors that help to show whether statements
following illegal police conduct are admissible:
the voluntariness of the statement, the temporal
proximity of the illegal conduct and the
confession, the presence of any intervening
circumstances, and the purpose and flagrancy of
the official misconduct. Id. at 603-04. See also
United States v. Patino, 862 F.2d 128, 132 (7th
Cir. 1988) (discussing Brown factors). "But if a
suspect requests counsel at any time during the
interview, he is not subject to further
questioning until a lawyer has been made
available or the suspect himself reinitiates
conversation." Davis v. United States, 422 U.S.
452, 458 (1981), citing Edwards v. Arizona, 451
U.S. 477, 484-85 (1981).

      Wesela’s statement to SA Darin is not
inadmissible under Brown or Edwards. There can be
no doubt that Wesela volunteered his statements
to SA Darin. SA Darin repeatedly informed Wesela
that he did not want to talk about the facts of
the case. Indeed, we are hard pressed to imagine
a more conscientious refusal to take advantage of
the situation than SA Darin’s. Wesela ignored SA
Darin’s requests not to speak with him about the
case. Instead, he kept talking, eventually
incriminating himself by describing how he shot
the cat (and thereby essentially admitting he had
possession of the gun). Moreover, Wesela’s
statements to SA Darin were made six days after
his interview with Detective Corbett. Six days
was a sufficiently long period of time for Wesela
to reflect on his predicament, collect his
thoughts about his interview with Detective
Corbett, and decide whether he wanted to speak
with an attorney before making any further
statements. The fact that he was in custody
during the six intervening days is not
dispositive of his case. Cf. Patino, 862 F.2d at
133 (defendant had "complete freedom" in
intervening six days). Wesela reinitiated
conversation with the police of his own volition;
he made the statements voluntarily and they were
unrelated to any possible Fifth Amendment
violations during earlier questioning. See Davis,
512 U.S. at 458 (stating if suspect requests
counsel, questioning must cease "until a lawyer
has been made available or the suspect himself
reinitiates conversation") (emphasis added),
citing Edwards, 451 U.S. at 484-85. The district
court did not err in allowing the admission of
Wesela’s statements to SA Darin.


      C.   Statements of Mrs. Wesela

      At trial, the government used Detective Schmitz
to introduce statements made by Mrs. Wesela
during her interview with Detective Schmitz at
2:18 a.m. on January 26, 1999, including her
description of the events of January 24 and 25.
Detective Schmitz’s account of what Mrs. Wesela
told her during their conversation was, of
course, hearsay. The government offered three
bases for admitting the hearsay testimony for its
truth: Fed. R. Evid. 803(1) (present sense
impression); 803(2) (excited utterance); and 807
(residual or catchall exception for statements
having "circumstantial guarantees of
trustworthiness"). The district court initially
admitted the testimony pursuant to the residual
hearsay exception, Rule 807, and reserved the
question of admissibility under Rules 803(1) and
803(2). At trial, however, the court also cited
Rule 803(2) as justification for its admission.
Wesela contests only the admission under Rule
803(2).

      We review evidentiary decisions for abuse of
discretion. United States v. Singleton, 125 F.3d
1097, 1106 (7th Cir. 1997)--that is, has the
district court done something so far out of line
that "no reasonable person could agree" with its
rulings. United States v. Sinclair, 74 F.3d 753,
756 (7th Cir. 1996). Rule 803(2) defines an
excited utterance as "[a] statement relating to
a startling event or condition made while the
declarant was under the stress of excitement
caused by the event or condition." Fed. R. Evid.
803(2). Hearsay statements are admissible under
the excited utterance exception if (1) a
startling event occurred; (2) the declarant made
the statement while under the stress of
excitement caused by the startling event; and (3)
the declarant’s statement relates to the
startling event. United States v. Sowa, 34 F.3d
447, 453 (7th Cir. 1994) (citations omitted). The
basis of the exception is that "such statements
are given under circumstances that eliminate the
possibility of fabrication, coaching, or
confabulation." Id. at 452-53, quoting Idaho v.
Wright, 497 U.S. 805, 820 (1990). The timing of
the statement is important but not controlling.
Gross v. Greer, 773 F.2d 116, 119-20 (7th Cir.
1985). "All that the exception requires is ’that
the statement be made contemporaneously with the
excitement resulting from the event, not
necessarily with the event itself.’" Smith v.
Fairman, 862 F.2d 630, 636 (7th Cir. 1988),
quoting United States v. Moore, 791 F.2d 566, 572
n.4 (7th Cir. 1986).

      Wesela argues that it was an abuse of
discretion to allow in the statements pertaining
to the events of the 24th and the morning of the
25th. He contends that at the time Mrs. Wesela
made those statements, she was stressed and
excited, but her stress and excitement did not
stem from the events that occurred on the 24th
and the morning of the 25th; instead, she was
agitated because of the events of the evening of
the 25th. The court disagreed and found that the
events over the 24th and 25th were part of a
continuing course of conduct which left Mrs.
Wesela in a stressed and excited condition. The
court therefore allowed in the statements
regarding all of the events.

      The government is correct that some courts have
found statements following a long lapse in time
to fall within the excited utterance exception.
However, these cases generally involve young
children who are the victims or witnesses of
crime. See, e.g., Sowa, 34 F.3d at 449, 453;
Gross, 773 F.2d at 120; United States v. Iron
Shell, 633 F.2d 77, 85-86 (8th Cir. 1980). In the
case of an adult declarant, courts are much less
likely to find any statements made to fall within
the exception. See, e.g., United States v. Zizzo,
120 F.3d 1338, 1355 (7th Cir. 1997) (finding no
excited utterance where startling event took
place at O’Hare Airport and statement was made at
the Dirksen Building in downtown Chicago).
      Several hours passed between the events of the
morning of January 24 and 25 and the time Mrs.
Wesela spoke to Detective Schmitz. Mrs. Wesela
was not under a continuous threat; to the
contrary, she was at work and away from Wesela
for a full workday. That she was able to go to
work demonstrates that she had regained at least
some of her composure and emotional control.
Therefore, although Wesela engaged in a pattern
of threatening behavior, one cannot say that Mrs.
Wesela was under continuous, uninterrupted stress
and excitement. By accepting a lesser state of
mental angst as enough to satisfy Rule 803(2),
the district court applied the wrong legal
standard. It thus abused its discretion in
admitting Mrs. Wesela’s statements regarding the
24th and the morning of the 25th.

      The error, however, was harmless. Because the
parties had stipulated that Wesela was a felon,
the only contested issue at trial was whether
Wesela possessed a firearm. The evidence seized
from the Weselas’ apartment (e.g., the dead cat,
shell casings, gun, and gun box) combined with SA
Darin’s testimony regarding Wesela’s admission of
why and how he shot the cat provided
incontrovertible evidence that Wesela possessed
the gun. Detective Schmitz’s testimony regarding
Mrs. Wesela’s statements were completely
unnecessary to gain Wesela’s conviction.

      Our finding of harmless error makes it
unnecessary as well for us to decide whether Mrs.
Wesela’s testimony could have been admitted under
Rule 807. We note, however, that Sixth Amendment
Confrontation Clause problems can arise if
evidence from an unavailable witness is used
against a defendant. As Justice Stevens put it in
Lilly v. Virginia, 527 U.S. 116 (1999), "[w]hen
the government seeks to offer a declarant’s out-
of-court statements against the accused, and, as
in this case, the declarant is unavailable,
courts must decide whether the Clause permits the
government to deny the accused his usual right to
force the declarant to submit to cross-
examination, the greatest legal engine ever
invented for the discovery of truth." Id. at 124,
quoting from California v. Green, 399 U.S. 149,
158 (1970) (footnote and internal quotations
omitted). These concerns can be overcome only
when the evidence "falls within a firmly rooted
hearsay exception," or it contains particularized
guarantees of truthfulness such that adversarial
testing would be expected to add little to its
reliability. 527 U.S. at 124-25, reiterating
framework from Ohio v. Roberts, 448 U.S. 56, 66
(1980). See also Idaho v. Wright, 497 U.S. at
815.

      Here, Mrs. Wesela was arguably unavailable,
because it appeared that she might have been
prepared to invoke her spousal privilege under
Fed. R. Evid. 501. In addition, Rule 807 almost
by definition is not a "firmly rooted" or
"longstanding exception" to the hearsay rule. To
the contrary, it is the "residual" exception--the
catchall. Thus, before evidence can come in under
that rule there must be equivalent circumstantial
guarantees of its trustworthiness. These
questions would be worth exploring but for two
facts: first, Wesela never argued that his
confrontation rights would be violated if
Detective Schmitz’s hearsay statements about Mrs.
Wesela were admitted only under Rule 807, and
second, like most errors even of constitutional
dimension, this one is subject to harmless error
analysis. Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986); Smith, 862 F.2d at 638; see also
Arizona v. Fulminante, 499 U.S. 279, 306-07
(1991). The same reasons that persuaded us that
the error under Rule 803(2) was harmless are
equally compelling here.


III

      Wesela stipulated that he had previously been
convicted of a felony, and he admitted that he
shot the cat with a gun. Finding no error in the
district court’s suppression rulings, and nothing
that amounted to more than harmless error in its
evidentiary decisions, this was more than enough
to support his conviction, which we Affirm.
