In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2234

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAPHAEL McGAUGHY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 908—Charles R. Norgle, Sr., Judge.

____________

ARGUED FEBRUARY 16, 2007—DECIDED MAY 11, 2007

____________

Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Raphael McGaughy was convicted

in the Northern District of Illinois of being a felon in

possession of a firearm. See 18 U.S.C. § 922(g)(1). He was

sentenced under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(1), to fifteen years’ imprisonment. He timely

appeals his conviction and sentence, contending that the

district court erred in denying his request for an evidentiary hearing on a motion to suppress the evidence obtained in a search of his residence and that his sentence

violates Apprendi v. New Jersey, 530 U.S. 466 (2000). For

the reasons set forth in this opinion, we affirm the judgment of the district court.
2 No. 05-2234

I

BACKGROUND

A. The Complaint for a Search Warrant and the Search

On July 12, 2004, Officer Patrick Cardwell executed a

complaint for a search warrant that listed an apartment

where Mr. McGaughy stayed as the premises to be

searched. In the complaint, Officer Cardwell asserted that

he had probable cause to believe that Mr. McGaughy kept

a weapon in the residence in violation of law. The complaint rested principally on facts reported to Officer

Cardwell by a confidential source, “Pat Doe.” R.14, Ex.A

at 2. Doe reportedly informed the police that “within the

past seven days,” Doe had been in Mr. McGaughy’s

residence and had seen Mr. McGaughy in possession of a

rifle and a handgun. Id. According to the complaint, Doe

stated that Mr. McGaughy had indicated that the weapons

belonged to him and were used for his protection. Doe also

stated that Doe had known Mr. McGaughy to be in possession of weapons on other occasions and that Doe knew Mr.

McGaughy transported weapons in his car between the

home and another area of the city. The complaint further

attributed various innocent facts to Doe, such as a description of the exterior of the apartment building and the

fact that Mr. McGaughy resided there with his girlfriend.

Officer Cardwell then made his own additional statements to show police corroboration of the facts attributed

to Doe. He stated that he had observed the exterior of the

building and that it matched Doe’s description. He further

stated that he had run a registration check on a car that he

had observed parked behind the apartment building and

the check confirmed that the vehicle was registered to

Mr. McGaughy. Finally, Officer Cardwell noted that he
No. 05-2234 3

had checked Illinois records and had confirmed both that

Mr. McGaughy had an aggravated battery conviction

from 1998 and that he did not possess a valid firearm

owner identification card.

On July 12, 2004, both Officer Cardwell and Doe appeared before an Illinois circuit judge to attest to the

validity of the statements in the complaint. The judge

found that there was probable cause and issued the

warrant.

In the early morning of July 14, 2004, police executed

the warrant at the apartment of Mary Dotson, Mr.

McGaughy’s girlfriend, where he had been staying. Police

found Mr. McGaughy and Dotson in bed and, after asking

both to make their hands visible and leave the bed, found

a gun under Mr. McGaughy’s pillow. The officers also

found a second gun in a laundry basket.

Following the search, Mr. McGaughy was arrested and

eventually was charged by a federal grand jury with being

a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1).

B. District Court Proceedings

Before trial, Mr. McGaughy filed a motion to suppress

the evidence seized in the search; he contended that the

informant’s statements, which provided the substance of

the complaint, did not establish probable cause as that

standard is described in Illinois v. Gates, 462 U.S. 213 (1983).

Specifically, he claimed that it was error to credit Doe’s

assertions without a basis in the complaint for determining Doe’s reliability, veracity or the basis for Doe’s knowledge. He also claimed that the information provided by
4 No. 05-2234

1 Although Mr. McGaughy did not raise his contention regarding the possible bias of Officer Cardwell in his opening brief

before the district court, both parties address this argument on

its merits in this appeal; the Government has not suggested

that it is waived. We therefore shall address it in substance.

Doe was stale, relating to possession of a gun up to 16 days

prior to the execution of the complaint. Finally, he claimed

that the Leon good-faith exception did not apply because

the complaint was “so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable.” R.14 at 10 (citing United States v. Leon, 468

U.S. 897, 918 (1984)). He asked that the evidence be suppressed or, in the alternative, that an evidentiary hearing

be granted “to resolve any evidentiary issues.” Id. at 11. He

did not endeavor to identify further any material factual

dispute.

In reply, Mr. McGaughy contended that there were

material omissions in the application that tainted its

validity. Specifically, he noted again that the complaint

contained no information about Doe, but also alleged that

Officer Cardwell had omitted information about a “history” between Officer Cardwell and Mr. McGaughy. Mr.

McGaughy contended that, at some point in the past, he

had been charged with either resisting arrest or battery of

a police officer in relation to an incident in which he

allegedly had thrown a bottle at Officer Cardwell. R.18 at

6; Appellant’s Br. at 6. Mr. McGaughy stated that the

issuing judge “would certainly [have been] interested in

knowing” of the “potential bias on the part of the complainant” before making the probable cause determination. R.18 at 6.1
No. 05-2234 5

2 Counsel for Mr. McGaughy specifically asserted that he

raised two challenges to the probable cause determination, lack

of corroboration of the informant and staleness. See Tr. at 3, 8

(Jan. 21, 2005).

The district court heard argument on the motion to

suppress. Counsel for Mr. McGaughy focused on Mr.

McGaughy’s claim that the issuing judge had erred in

determining that the facts of the complaint established

probable cause, rather than on any contention that an

outstanding factual dispute had to be resolved before the

probable cause determination could be assessed.2

 At one

point, the Government noted, “in addition, your

Honor—and I don’t know if we need to address this or not—but

the [G]overnment does not believe that a hearing is necessary. If you’d like me to address that, I can. Or we can jump

off that bridge when we get to it.” Tr. at 17-18 (Jan. 21,

2005) (emphasis added). When the court asked for Mr.

McGaughy’s reply, counsel did not contend specifically

that there were disputed issues of fact requiring a hearing.

Instead, she contended again that Officer Cardwell’s

corroboration was insufficient to overcome the absence

of information about the informant’s credibility and that

the information was stale. She did not raise any issue

regarding the allegations of bias of Officer Cardwell. She

did not restate the request for an evidentiary hearing, but

asked the court to “grant the motion and suppress the

weapons.” Id. at 23.

Following argument, the district court ruled that the

issuing state judge had a substantial basis for concluding that the warrant was supported by probable cause. Id.

at 23. The court stated that the officers took appropriate

steps to corroborate as much information of the confiden-
6 No. 05-2234

tial informant as they could and that any delay in seeking the warrant was reasonable in light of these attempts

to corroborate. The court found significant that the warrant specified that the confidential informant had observed personally the weapons in the apartment and, by

virtue of the detail regarding the movement of the weapons, clearly “had some knowledge of the defendant and

the circumstances under which he lived.” Id. at 26. The

court made no specific ruling on the issue of an evidentiary

hearing.

Mr. McGaughy subsequently was convicted in a jury

trial. The presentence report included information regarding his prior violent felony convictions; on the basis of

those convictions, the trial court sentenced him to the

minimum fifteen-year sentence prescribed by the Armed

Career Criminal Act, 18 U.S.C. § 924(e)(1). Mr. McGaughy

contended that Apprendi v. New Jersey, 530 U.S. 466 (2000),

required the fact of his prior convictions that resulted in a

recidivism enhancement to have been found by a jury

beyond a reasonable doubt. The court rejected his argument.

II

DISCUSSION

A. Denial of an Evidentiary Hearing

Mr. McGaughy contends that the district court erred in

denying an evidentiary hearing on his motion to suppress.

In this court, Mr. McGaughy does not challenge directly

the probable cause determination or the applicability of

the good faith exception as he did in the district court;

instead, he focuses on whether the motion should have
No. 05-2234 7

been decided without first conducting an evidentiary

hearing.

We review a district court’s denial of an evidentiary

hearing on a motion to suppress for an abuse of discretion.

United States v. Juarez, 454 F.3d 717, 719 (7th Cir. 2006).

Evidentiary hearings are not required as a matter of

course; a district court need conduct a hearing only

when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed

enough to conclude that a substantial claim is presented and that there are disputed issues of material

fact which will affect the outcome of the motion.

United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004); see

also Juarez, 454 F.3d at 720; United States v. Martin, 422 F.3d

597, 602-03 (7th Cir. 2005), cert. denied, 74 U.S.L.W. 3424

(Jan. 23, 2006) (No. 05-8234). We have emphasized the

necessity of materiality in any factual disputes that are

presented to the district court as a predicate for an evidentiary hearing. Villegas, 388 F.3d at 324; Juarez, 454 F.3d

at 720; United States v. Berkowitz, 927 F.2d 1376, 1385 (7th

Cir. 1991).

Mr. McGaughy’s briefing and argument on the motion to

suppress do not identify any specific “material factual

dispute” requiring resolution through an evidentiary

hearing. In the district court, Mr. McGaughy did claim the

information from Doe was up to two weeks old and

therefore stale, and, on reply, added his claims that personal bias motivated the complaining officer in seeking

the warrant. Mr. McGaughy did not make any serious

effort to articulate what facts had to be adduced at an

evidentiary hearing to inform the court’s analysis; furthermore, Mr. McGaughy did not articulate in what manner
8 No. 05-2234

3 Neither on appeal nor before the district court did Mr.

McGaughy claim that the omission of the history information

raised a Franks issue. See Franks v. Delaware, 438 U.S. 154 (1978);

United States v. Harris, 464 F.3d 733 (7th Cir. 2006). Franks and its

progeny entitle a defendant to a hearing on the veracity of an

affidavit supporting a request for a search warrant when the

defendant

(continued...)

the district court’s ultimate determination of probable

cause would have been different if his version of the

facts were accepted. See Juarez, 454 F.3d at 720.

Our precedent places the onus on a defendant seeking

an evidentiary hearing to “specifically . . . allege[ ] a definite

disputed factual issue,” Martin, 422 F.3d at 603 (emphasis

added), and to demonstrate its materiality, Juarez, 454 F.3d

at 720. We conclude that Mr. McGaughy has not met this

burden.

With respect to the age of the information, the district

court explicitly considered whether any delay caused

Doe’s information to become stale. The district court

concluded that the complaint alleged possession of firearms, an ongoing criminal activity, that was likely to

persist beyond the day the information was passed from

Doe to the police. Indeed, the district court took the

view that any delay demonstrated that the officer had

taken the prudent course in attempting some corroboration before producing a complaint.

With respect to the question of potential bias, Mr.

McGaughy’s conclusory allegation that a history with the

complaining officer should have been presented to the

issuing judge also does not create a material issue of fact.3
No. 05-2234 9

3 (...continued)

makes a 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, 438 U.S. at 155-56; see also Zambrella v. United States, 327

F.3d 634, 638 (7th Cir. 2003). We have acknowledged that the

same rationale applies to substantiated allegations that the

affidavit contains intentional or reckless omissions of facts,

which, if included, would have rendered the affidavit lacking

in probable cause. United States v. Williams, 737 F.2d 594, 604 &

n.6 (7th Cir. 1984). This is not the claim Mr. McGaughy has

made, nor the type of remedy he has requested.

Officer Cardwell’s personal contributions to the factual

statements in the complaint were simply that Mr.

McGaughy was a felon without a valid firearm permit who

parked his car outside a particular apartment building. Mr.

McGaughy does not allege that bias tainted any of these

facts. Moreover, it is nothing more than speculation to

suggest that any bias on the part of Officer Cardwell

tainted the factual statements attributed to Doe. Doe swore

out an affidavit and attested to the veracity of those

statements before an Illinois circuit judge. The issuing

judge was in a position to assess the credibility and veracity of both persons and to make his probable cause determination with that additional evidence before him. See

United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002)

(noting that, whether “the informant personally appeared

and presented an affidavit or testified before the magistrate, thus allowing the judge to evaluate the informant’s

knowledge, demeanor, and sincerity” is an important

factor in determining whether probable cause is established
10 No. 05-2234

on the basis of an informant’s tip). Under these circumstances, the bald suggestion of bias is insufficient to

establish a factual dispute that is material to the probable cause determination.

We perceive no abuse of discretion on the part of the

district court in deciding the constitutionality of the

search without first holding an evidentiary hearing.

Accordingly, we deny relief to Mr. McGaughy on the basis

of the only substantial claim placed before this court.

We note that Mr. McGaughy raises only the absence of an

evidentiary hearing to this court. We therefore have no

occasion to pass upon the validity of the warrant given the

contentions actually pressed on appeal; we express no

opinion on the merits of that claim.

B. Apprendi and the Armed Career Criminal Act

Finally, Mr. McGaughy submits that Apprendi v. New

Jersey, 530 U.S. 466 (2000), requires a jury to have found

the fact of his prior convictions, which serve as the predicate for a recidivism enhancement, beyond a reasonable

doubt. Mr. McGaughy acknowledges that this court is

without authority to decide this issue in his favor because

the governing law of the Supreme Court, which this

court is bound to follow, states that the fact of a prior

conviction need not be found by a jury beyond a reasonable

doubt. Almendarez-Torres v. United States, 523 U.S. 224, 246-

47 (1998). Apprendi specifically preserved AlmendarezTorres, see 530 U.S. at 488-90 (“Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable

doubt.”) (emphasis added). Accordingly, given the govern-
No. 05-2234 11

ing precedent, we cannot accept Mr. McGaughy’s claim

that the failure to submit this issue to the jury constitutes reversible error.

Conclusion

Accordingly, the judgment of the district court is

affirmed. 

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-11-07