In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1456

TAURUS ZAMBRELLA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:00-CR-197—James T. Moody, Judge.

____________

ARGUED NOVEMBER 5, 2002—DECIDED MAY 5, 2003

____________

Before FLAUM, Chief Judge, CUDAHY, and COFFEY, Circuit

Judges.

COFFEY, Circuit Judge. On October 16, 2001, Defendant

Taurus Zambrella was convicted by a jury of two counts

of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1), and one count of stealing firearms

from a licensed business dealing in firearms, in violation

of 18 U.S.C. § 922(u) and 18 U.S.C. § 2. The district

court sentenced Zambrella to 293 months in prison on the

two felony in possession charges, and 120 months in prison

on the theft of a firearm charge (sentence terms to run

concurrently). Zambrella seeks reversal of his conviction

on the basis that the trial court improperly denied him a

Franks hearing to test the validity of the search warrant
2 No. 02-1456

affidavit. Alternatively, Zambrella urges this court to

remand his case for re-sentencing because the district

court “should have given [Zambrella] an additional opportunity to obtain transcripts of the [prior state] plea hearing . . .,” which he claims would have allowed him to prove,

prior to sentencing, “that he [wa]s not an armed career

criminal.” Zambrella’s Br. at 21. We affirm.

I. Background

On August 13, 2000, Sergeant Joel Whalen of the

Manteno, Illinois, Police Department arrested Taurus

Zambrella on felony charges and transported him to the

Kankakee County Jail. While in jail, Zambrella used the

telephone to make a number of phone calls, each of which

was recorded on audio tape by the authorities. Seeking to

identify another individual believed to be involved in the

crime, Whalen interviewed Zambrella while he was in

custody and, after his (Zambrella’s) release, reviewed the

master tape containing his outgoing phone calls.

In one conversation recorded on the audio tape, Whalen

heard a male individual conversing with a female about

“his” (the speaker’s) guns located in his apartment. Based

on his recent arrest and interview of Zambrella, Sergeant

Whalen believed one of the voices on the tape to be that

of Zambrella and further investigation revealed that the

recipient of the phone call was Zambrella’s wife.

In initiating the process of obtaining a warrant to search

Zambrella’s apartment (located in Gary, Indiana), Whalen’s

co-worker, Detective Bill Mort, contacted Detective John

Meznarick of the Lake County, Indiana, Sheriff’s Department. Mort told Meznarick about the taped telephone

conversation, and informed Meznarick that Lieutenant

Walling from the Kankakee County Sheriff’s Office had

identified Zambrella as the person whose voice was on the
No. 02-1456 3

1 Only three of the counts (the two felony in possession of a

firearm counts and one theft of a firearm count) proceeded to trial.

Two of the original five charges were dismissed by the court

on motion of the prosecutors.

cassette tape. On August 21, Whalen delivered the cassette

tape to Meznarick, and furnished Meznarick with the

address of Zambrella’s residence in Gary.

After listening to the tape of the telephone conversation

recorded at the Kankakee County Jail, and relying on the

information imparted to him by the Kankakee County

police officers (date of phone call, identification of Zambrella as phone caller), Meznarick prepared a written

affidavit in support of the application for a warrant to

search Zambrella’s residence. On August 23, 2000,

Meznarick personally presented the affidavit to a judge

pro tem in the Lake County Superior Court who, after

reviewing the application and affidavit, issued a warrant

to search Zambrella’s residence.

Meznarick and other officers executed the warrant on

August 24, 2000. During the search of Zambrella’s home,

officers seized two guns—a .20-gauge double-barrel shotgun

and a Bushmaster .223 caliber semi-automatic rifle. The

weapons were thereafter traced to a burglary of a federallylicensed firearms dealer on July 10, 2000. Zambrella was

ultimately charged with five counts of weapons violations.1

Before trial, Zambrella moved to suppress the evidence

obtained pursuant to the search warrant, arguing that

the police lacked probable cause to search his residence because two of the facts set forth in the search warrant

(the date of the phone call and the name of the officer

who identified Zambrella as the caller) were later deter-
4 No. 02-1456

2 It was determined that the two facts (date and name of the

officer) were inaccurately relayed to Officer Meznarick by police

officers from Kankakee County.

3 References to the suppression hearing transcript are herein

denoted “Supp. Hr’g Tr.,” while references to the transcript of the

1990 plea hearing are denoted “1990 Plea Tr.,” citations to the

transcript of the pretrial conference are referred to as the

“Pretrial Conf. Tr.,” and citations to the sentencing hearing are

denoted, “Sentencing Hr’g Tr.”

mined to be in error.2 After conducting a thorough, two-day

evidentiary hearing concerning the affidavit, during which

Detective Meznarick, Lieutenant Walling, and Sergeant

Whalen testified, the court made the following finding:

“all the credible evidence [presented at the hearing, establishes] . . . [that the] affidavit seeking the issuance of the

search warrant[ ] w[as] properly done.” Supp. Hr’g Tr. at

45.3

 The court expressly “adopt[ed] the position of the

Government” that any errors contained in the affidavit were

“not fatal,” and, moreover, that, although there may have

been an “error in communication” between the police

officers involved in the Zambrella investigation, there was

certainly “no deliberate act on [the part of] Detective

Meznarick [the affiant] or anyone else [involved in the

investigation” to include inaccurate information in the

affidavit. Id. at 34-35, 45.

Despite the court’s explicit finding that the affidavit

supporting the search warrant was proper and valid,

Zambrella once again renewed his complaint about the

affidavit at a later pretrial conference, requesting a

Franks hearing to test its truthfulness. Pretrial Conf. Tr.

at 4. The court denied the request for a Franks hearing,

ruling that the issues raised in connection with the affidavit’s inaccuracies had been resolved during the prior twoday suppression hearing. Id. at 5-6. The case proceeded

to trial before a jury. On the second day of trial, Zambrella
No. 02-1456 5

4 Because Zambrella only challenged the prior conviction for

possession of cocaine with intent to deliver, we need only discuss

that conviction.

renewed his motion for a Franks hearing, but the district

court denied the same, ruling that motion had “already

[been] ruled on [and denied]. . . .” Oct. 16, 2001 Trial Tr.,

at 47-48.

After a two-day trial, the jury found Zambrella guilty

of two felony in possession (firearm) charges, as well as the

theft of (two) firearms charge. At the sentencing hearing

on February 14, 2002, the Government argued that the

sentencing judge should apply an “armed career criminal”

enhancement pursuant to U.S.S.G. § 4B1.4 and 18 U.S.C.

§ 924(e). Under the Armed Career Criminal Act of 1984,

18 U.S.C. § 924(e) (the “Act”), the sentencing enhancement applies if: (1) the offense of which the defendant has

been convicted is a violation of 18 U.S.C. § 922(g) and

(2) the defendant has at least three prior convictions for a

“violent felony” or “serious drug offense.” The Government

presented evidence of three prior relevant convictions, only

one of which was disputed by Zambrella.4

The disputed conviction occurred in the year 1990 when

Zambrella was charged in Illinois with two drug violations:

(1) possession of cocaine and (2) possession of cocaine

with intent to deliver. The simple possession count was

nolle prosequied before trial and Zambrella pled guilty to

the second count—possession of cocaine with intent to

deliver. At sentencing, Zambrella argued that he had pled

guilty only to the simple possession charge (rather than

possession with intent to deliver cocaine), while on the

other hand, the Government maintained that he pled

guilty to possession with intent to deliver (cocaine). Thus,

the question before us is whether Zambrella’s 1990 state

conviction was for mere possession rather than possession

with intent to deliver cocaine.
6 No. 02-1456

5 “P.C.S. W/INT” is apparently a short-hand reference to

“possession of a controlled substance with intent to deliver.”

Under 18 U.S.C. § 924(e), “serious drug offense” is defined

as follows:

an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture

or distribute, a controlled substance (as defined in

section 102 of the Controlled Substances Act (21 U.S.C.

§802)), for which a maximum term of imprisonment

of ten years or more is prescribed by law . . . .

18 U.S.C. § 924(e)(2)(A)(ii).

Thus, if the prior conviction had been for simple possession

only, as Zambrella argued before the sentencing court,

Zambrella would have been ineligible for the “armed

career criminal” enhancement.

To support the Government’s contention that Zambrella’s 1990 conviction was for possession of cocaine with

intent to deliver, the Government presented the sentencing court with a plethora of evidence, including certified

copies of the Circuit Court of Cook County’s criminal

information, sentencing order, docket sheet, and notification of final disposition. The certified copy of the 1990

criminal information reflected that “Count No. 1” was a

simple possession charge, and that the second count was

for “possess[ion] with intent to deliver . . . cocaine . . . .”

Government’s Ex. 1. And, according to the certified copy

of the 1990 Cook County docket sheet, the “order entered”

by the Cook County Circuit Court, on the date of the

sentencing (May 18, 1990), was as follows: “Co 1-Nolle, Co

2-4 yrs. prob.” See Government’s Ex. 4. The certified copy

of the sentencing order set forth that the charge for

which Zambrella was sentenced was “P.C.S. W/INT”5

 and

the term of the sentence was “probation for a period of 4
No. 02-1456 7

yrs.” See Government’s Ex. 5. The notification of final

disposition, meanwhile, confirmed that Zambrella’s 1990

sentence was “4 yrs. prob.,” but did not specifically recite

the nature of the charge. See Notification, Government’s

Ex. 6.

Zambrella argued to the district court that the Government’s evidence regarding the nature of the 1990 conviction was not conclusive. Specifically, he complained that

the criminal information did not explicitly label the possession with intent to deliver charge as “count two,” and

that it was therefore unclear whether he was in fact

convicted of that charge. Zambrella also claimed that

the absence of the charge from the state court’s notification of final disposition created some doubt as to which of

the 1990 charges ultimately resulted in a conviction.

The court was satisfied that the certified documents

presented by the Government were authentic and convincing, and concluded that the 1990 conviction was for possession of cocaine with intent to deliver (Ill.Rev.Stat. 1991, ch.

561⁄2, par. 1401). The court denied Zambrella’s motion

for a continuance of the sentencing.

II. Analysis

A district court’s denial of a defendant’s request for a

Franks hearing is reviewed for clear error. United States v.

Roth, 201 F.3d 888, 891 (7th Cir. 2000). A decision to deny

a motion for continuance of sentencing is reviewed for

an abuse of discretion. United States v. Knorr, 942 F.2d

1217, 1221 (7th Cir. 1999).

A. Franks hearing

A defendant is entitled to a hearing to challenge the

veracity of a search warrant, so long as he “makes a
8 No. 02-1456

substantial preliminary showing that a false statement

knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary

to the finding of probable cause.” Franks v. Delaware, 328

U.S. 154, 155-56 (1978). We agree with the Government

that Zambrella failed to fulfill the requirement of making

a substantial preliminary showing that the affiant in

this case, Detective John Meznarick, knowingly and

intentionally, or with reckless disregard for the truth, made

a false statement in the search warrant.

As we noted in United States v. Whitley, 249 F.3d 614 (7th

Cir. 2001), the “Franks decision did not define ‘reckless

disregard for the truth,’ other than to suggest that the

standard required more than mere negligence on the part

of the affiant.” Whitley, 249 F.3d at 621 (emphasis added).

In this case, the evidence presented at the suppression

hearing overwhelmingly supports the Government’s

argument that the affiant, Detective Meznarick, did not act

recklessly when he cited what later turned out to be two

factual errors (date of phone conversation, name of identifying officer) in his affidavit. Instead, Meznarick held a good

faith belief, based on Detective Mort’s statements and the

label on the cassette tape, that the information set forth in

his affidavit was entirely true.

At the suppression hearing, Meznarick explained that

his statement regarding the date of the telephone call

reflected information imparted to him by Detective Mort.

Mort had informed Meznarick that the phone call took

place on August 21, 2000. And, according to Meznarick,

the date label on the copy of the cassette tape read “August

21, 2000,” apparently confirming the date on which the
No. 02-1456 9

6 It was not until a week prior to the suppression hearing that

Meznarick learned that the actual date of the phone conversation

was August 13, 2000. Supp. Hr’g Tr. at 21. Thus, at the time that

he submitted the affidavit to the court, Meznarick truly believed,

based on all information available to him (Mort’s statement

and label on the cassette tape), that the telephone call had taken

place on August 21, 2000. Id. at 22 (“When you swore under oath

that the 21st was the actual date of the call, were you telling the

truth as you knew it?” “Yes.”).

phone conversation was recorded. Supp. Hr’g Tr. at 20.6

And, as far as the voice identification issue was concerned,

Meznarick was told that Lieutenant Walling (another

officer involved in the investigation) had identified the

voice on the tape to be Zambrella. Id. at 32.

Because Meznarick had been informed by Detective

Mort that the cassette tape was recorded on August 21,

2000, and that Walling had identified the voice on the

tape, Meznarick had a sound basis for setting forth those

facts in his affidavit. Any errors that were inadvertently

included in Meznarick’s affidavit were, at worst, the result

of mere negligence. Zambrella has thus fallen far short of

establishing that Meznarick exhibited a reckless disregard for the truth, much less that he knowingly or intentionally made a false statement.

Zambrella’s argument in support of a Franks hearing

fails for the additional reason that there is no reason to

believe that including the correct date (August 13, 2000

rather than August 21, 2000) or the correct identifying

officer (Whalen rather than Walling) would have made

a difference in the judge’s decision to issue the warrant.

Because neither of the alleged errors was critical to the

finding of probable cause, no Franks hearing was necessary in this case. Franks, 438 U.S. at 155; United States v.

Maro, 272 F.3d 817, 821 (2001).
10 No. 02-1456

Finally, we note that Zambrella’s repeated requests for

a Franks hearing were properly denied because the trial

court had previously resolved Zambrella’s challenge to the

search warrant affidavit. At the suppression hearing, the

trial court had ample opportunity to assess and weigh

Detective Meznarick’s explanation of the information set

forth in his affidavit. And, after hearing all of the evidence,

the court adopted the Government’s position that the

affidavit supporting the warrant did not contain any fatal

flaws, and that the warrant was entirely proper. Because

the suppression hearing effectively served the purpose of

a formally designated Franks hearing in this case, there

was no reason for the court to waste its valuable and

precious time revisiting a problem already raised by

Zambrella and resolved by the court. The district court

did not err in denying Zambrella’s request for a Franks

hearing.

B. Motion to continue sentencing

Zambrella’s contention that the district court abused

its discretion when it denied his motion for a continuance

to “clean up” the issue of his 1990 conviction is similarly

without merit. Despite Zambrella’s steadfast claim that

he was convicted of simple possession of cocaine, rather

than possession of cocaine with intent to deliver, the record is abundantly clear. See May 18, 1990 Plea Hearing

Tr. at 5-11.

At sentencing, when arguing for the lesser charge (mere

possession of cocaine), Zambrella relied on an alleged

uncertified photostatic copy of what was designated as

a Cook County Circuit Court’s “Notification of Felony

Disposition” form that he presented to the court. In the

form, an unidentified person had filled in the “convicted

under” section of the Notification as “Pssn. Con. Sub.” (i.e.,
No. 02-1456 11

simple possession)—without any accompanying explanation or proof of documentation from the Cook County

authorities, much less any letter of transmittal from the

Circuit Court referring to the alleged court document.

Zambrella contends that this uncertified paper which he

refers to as a document “created serious doubt as to the

status of his 1990 conviction” and thus he was entitled to

a continuance to clarify the issue before sentencing. Zambrella’s Br. at 14. We disagree, for this altered “Notification” was itself inherently suspect.

Moreover, it must be pointed out that not until the very

moment of truth, on the very date of sentencing, did

Zambrella submit his alleged court document, entitled a

“Notification,” that purportedly supported his prior conviction was for simple possession. Sentencing Hr’g Tr. at 10.

Thus, it is obvious that the Government neither had

the time nor the opportunity to investigate the issue, much

less submit evidence of the possible forgery.

Given that Zambrella presented this seemingly fraudulent document to the court for the first time on the very

morning of his sentencing, while standing before the court,

his request for a continuance is even more suspect. As

it turns out, Zambrella’s disclosure of the allegedly “revised” Notification—two minutes before the moment of

decision (sentencing)—prevented the Government from

obtaining what would have conclusively settled the issue

of the 1990 conviction at that time—namely, a transcript

of the plea hearing concerning Zambrella’s prior drug

offense for possession with intent to distribute. From that

transcript, which has now been made part of the record, it

is abundantly clear that, in 1990, Zambrella was in fact

convicted of possession with intent to distribute cocaine,

rather than mere simple possession (as Zambrella claimed).

The transcript of the May 18, 1990 plea hearing held in

Cook County Circuit Court reads as follows:
12 No. 02-1456

Court: “Mr. Zambrella, your attorney tells me you

wish to plead guilty to the charge of possession of controlled substance with intent

to deliver, is that correct?”

Zambrella: “Yes, sir.”

Court: “Has your attorney had an opportunity to

discuss with you your rights under the law

and the consequences of pleading guilty to

this charge?”

Zambrella: “Yes.”

Court: “What is your plea to the charge of possession of controlled substance with intent

to deliver?”

Zambrella: “Guilty.”

Court: “Before I accept your plea of guilty, I want

to be sure you understand the legal rights

you have and the rights you give up when

you plead guilty. If you don’t understand

anything I say, please stop me and ask

me any questions you have . . . . The charge

against you is on or about January 12,

1989, in Cook County, Illinois, you, Taurus

Zambrella, committed the offense of possession of controlled substance with intent

to deliver . . . . Do you understand the

charge against you?

Zambrella: “Yes, sir.”

Court: “Is that the charge you wish to plead guilty

to?”

Zambrella: “Yes, sir.”

Court: “The law provides certain penalties were

you convicted of the charge against you . . .
No. 02-1456 13

you could be sentenced anywhere from a

minimum of four years . . . to a maximum

of fifteen years . . . . And you also could

be fined up to two hundred and fifty thousand dollars for this offense, or you could

be both fined and sentenced . . . . Do you

understand all of the possible penalties?”

Zambrella: “Yes, sir.”

. . .

Court: “Do you still wish to plead guilty?”

Zambrella: “Yes, sir.”

Court: “Do you understand you have the right to

plead not guilty and require the State to

prove you guilty beyond a reasonable

doubt?”

Zambrella: “Yes.”

Court: “Do you understand when you plead guilty

you give up your right to a trial of any

kind . . . . Do you understand that?”

Zambrella: “Yes.”

. . .

Court: “You give up the right to have a jury trial.

A jury trial is made [up] of twelve men and

women chosen in part by you and your

lawyer. . . Do you understand what a jury

is and what it does?

Zambrella: “Yes, I do.”

Court: “I have a jury waiver here, is that your

signature?”

Zambrella: “Yes.”

. . .
14 No. 02-1456

Court: “Jury waive will be accepted and made a

permanent part of the record. Have any

threats of any kind been made to you to get

you to plead guilty?”

Zambrella: “No.”

Court: “Has anyone forced you to plead guilty?

Zambrella: “No.”

Court: “Are you pleading guilty of your own free

will?

Zambrella: “Yes.”

Court: “. . . [H]as anyone made any promises to

you about what I would or would not do if

you plead guilty?”

Zambrella: “No.”

. . . 

Court: “Mr. Zambrella, knowing the nature of the

charge, the possible penalties, and your

rights under the law, do you still wish to

plead guilty to the charge of possession of

controlled substance with intent to

deliver?”

Zambrella: “Yes.”

Court: “The Court finds the defendant understands the nature of the charge against

him . . . [and that] defendant is pleading

guilty knowingly, voluntarily . . . the Court

accepts the defendant’s plea of guilty to

possession of controlled substance with

intent to deliver, enter judgment on that

finding.”

1990 Plea Tr. at 5-11.
No. 02-1456 15

Had the district court granted Zambrella’s motion for a

continuance, Zambrella would have succeeded in his efforts to put off his moment of reckoning—all based on his

mischaracterization to the district court of his prior criminal record. Despite Zambrella’s concentrated efforts to

rewrite and erase portions of his criminal history through

an attempted fraud on the court, the record is eminently

clear that on May 18, 1990, in Cook County Circuit Court,

he knowingly pled guilty to possession with intent to

distribute. Thus, we are unsympathetic to his efforts to

postpone the sentencing hearing, and hereby hold that

it was well within the bounds of the sound discretion

of the district court to deny the requested continuance in

this case.

AFFIRMED.
16 No. 02-1456

CUDAHY, Circuit Judge, concurring in the judgment. The

majority deals properly with the Franks hearing issue. The

other issue is whether the district court should, in its

discretion, have granted a continuance to obtain a sentencing transcript with respect to Zambrella’s prior drug

offense to support an increase in sentence of some fourteen

years. It seems to me that we are only lending credence

to Zambrella’s complaint by obtaining and relying here

on the very transcript that Zambrella sought, to support

a decision that there was no need for the district court

to consult the same transcript. See maj. op. at 12-14.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-5-03