Justin Rosenbohm is a registered
sex offender with a prior conviction for sexual misconduct
against a minor. In this case, the actions resulting
in his conviction were abhorrent, but Rosenbohm’s
sole argument on appeal is one of statutory interpretation,
permitting us to spare the reader the details
of his conduct.
On October 17, 2007, Rosenbohm was indicted on three
charges related to improper sexual conduct with minors
1Rosenbohm has two prior convictions for sex-related offenses.
The Illinois conviction occurred in 2000, and, only one month
later, Rosenbohm was convicted for violating federal law by
possessing child pornography. Under 18 U.S.C. § 3559(e)(2)(A),
a prior conviction for possession of child pornography is not
a qualifying offense that triggers § 3559(e)(1)’s mandatory
life sentence. Therefore, this conviction is not at issue in
this appeal.
and failure to update his sex offender registration. On
February 8, 2008, Rosenbohm pled guilty to sexually
exploiting children and producing sexually explicit images
of minors, in violation of 18 U.S.C. §§ 2251(a), 2260A, and
3559(e)(1). In the presentence investigation report, the
probation officer recommended a total offense level of
forty and a criminal history category III, resulting in an
advisory Sentencing Guidelines range of 360 months to
life in prison. However, based on Rosenbohm’s prior
conviction for aggravated criminal sexual abuse in
Peoria County, Illinois,1 the probation officer recommended
that the district court apply 18 U.S.C. § 3559(e)(1),
which imposes a mandatory life sentence for a repeat
offender who has a “prior sex conviction” against a child.
On June 27, 2008, the district court held Rosenbohm’s
sentencing hearing. Rosenbohm objected to the applicability
of the mandatory life sentence under § 3559(e)(1),
arguing that his Illinois state conviction was not a qualifying
“prior sex conviction.” The district court disagreed,
finding that the statute was “very straightforward” and
encompassed Rosenbohm’s prior conviction. Although
the district judge applied the mandatory life provision
Because Rosenbohm 2 was a registered sex offender at the
time he committed the instant offense, the district court also
imposed an additional ten-year prison term, to be served
consecutively with his sentence for the underlying offense, as
required by 18 U.S.C. § 2260A. Rosenbohm does not challenge
the applicability of § 2260A.
of § 3559(e)(1), he went on to address each of the sentencing
factors in 18 U.S.C. § 3553(a). After stating that
Rosenbohm’s conduct “[i]s about as serious as it gets
under this statute,” the district judge noted the
importance of protecting the public. Based on § 3559(e)’s
mandatory life sentence provision and his analysis of
the sentencing factors, the district judge sentenced
Rosenbohm to life imprisonment without parole.2
The sole issue that Rosenbohm presents on appeal is
whether his prior state conviction for aggravated criminal
sexual abuse constitutes a “prior sex conviction” under
18 U.S.C. § 3559(e). The interpretation of a statute is a
question of law, which we review de novo. United States
v. Thornton, 539 F.3d 741, 745 (7th Cir. 2008). We find
that Rosenbohm’s prior Illinois conviction qualifies as a
triggering offense for the mandatory life sentence, and
we therefore affirm his sentence.
In short, § 3559(e) imposes a mandatory life sentence
for a defendant who commits repeated sex offenses
against a child. The operative provision reads: “A person
who is convicted of a Federal sex offense in which a
minor is the victim shall be sentenced to life imprisonment
if the person has a prior sex conviction in which a
minor was the victim, unless the sentence of death is
imposed.” 18 U.S.C. § 3559(e)(1). A “prior sex conviction,”
for purposes of this statute, is “a conviction for which
the sentence was imposed before the conduct occurred
constituting the subsequent Federal sex offense, and
which was for a Federal sex offense or a State sex offense.”
Id. § 3559(e)(2)(C).
Thus, to determine whether Rosenbohm’s Illinois
conviction for aggravated criminal sexual assault constitutes
a “prior sex conviction,” we turn to the definitions
of “Federal sex offense” and “State sex offense,” which
are as follows:
(A) the term “Federal sex offense” means an offense
under section 1591 (relating to sex trafficking
of children), 2241 (relating to aggravated sexual
abuse), 2242 (relating to sexual abuse), 2244(a)(1)
(relating to abusive sexual contact), 2245 (relating
to sexual abuse resulting in death), 2251 (relating
to sexual exploitation of children), 2251A (relating
to selling or buying of children), 2422(b) (relating
to coercion and enticement of a minor into prostitution),
or 2423(a) (relating to transportation of
minors);
(B) the term “State sex offense” means an offense
under State law that is punishable by more than
one year in prison and consists of conduct that
would be a Federal sex offense if, to the extent or
in the manner specified in the applicable provision
of this title—
(i) the offense involved interstate or foreign
commerce, or the use of the mails; or
(ii) the conduct occurred in any commonwealth,
territory, or possession of the
United States, within the special maritime
and territorial jurisdiction of the United
States, in a Federal prison, on any land or
building owned by, leased to, or otherwise
used by or under the control of the Government
of the United States, or in the
Indian country (as defined in section 1151)
. . . .
Id. § 3559(e)(2)(B).
Although the provisions of § 3559(e) are lengthy, the
question in this appeal boils down to whether
Rosenbohm’s Illinois offense constitutes a “State sex
offense,” as defined by § 3559(e)(2)(B). If it does, then the
mandatory life sentence applies. Rosenbohm’s primary
argument is that § 3559(e)(2)(B) requires that a prior
state conviction have had an actual basis for exercising
federal jurisdiction to trigger the mandatory life sentence,
and that his prior Illinois conviction does not qualify
because no federal nexus actually existed. The government,
however, contends that the plain language of
§ 3559(e)(2)(B)’s definition of a “State sex offense” encompasses
all conduct that would have constituted a “Federal
sex offense” had a federal jurisdictional hook existed.
As with any question of statutory interpretation, we
seek to discern Congress’s intent and begin with the
language it used. See Lamie v. U.S. Tr., 540 U.S. 526, 534
(2004); United States v. Vallery, 437 F.3d 626, 630 (7th Cir.
2006). A cardinal canon of statutory construction is that
we “must presume that a legislature says in a statute
what it means and means in a statute what it says there.”
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). If
the language of a statute is clear and unambiguous, “in
the absence of a clearly expressed legislative intent to
the contrary, that language must ordinarily be regarded
as conclusive.” United States v. Turkette, 452 U.S. 576,
580 (1981) (quotations omitted); see also United States v.
Chemetco, Inc., 274 F.3d 1154, 1159 (7th Cir. 2001).
We turn to the plain language of § 3559(e) and find no
ambiguity in the statute’s definition of a “State sex offense.”
Under this provision, a “State sex offense” is any
conviction under state law, punishable by more than
one year in prison, involving conduct that “would be a
Federal sex offense if ” a basis for exercising federal jurisdiction
had existed. Id. § 3559(e)(2)(B) (emphases added).
The statute then defines two bases for federal jurisdiction:
(1) using the mails or interstate or foreign com
For the purposes 4 of § 3559, “State” is defined as “a State of
the United States, the District of Columbia, and a commonwealth,
territory, or possession of the United States.” 18 U.S.C.
§ 3559(c)(2)(G).
merce, and (2) committing the conduct on property
within the reach of a federal prosecution. See id. By the
statute’s clear language, Congress intended that a prior
state conviction must be congruent to one of several
specific, enumerated federal offenses before triggering a
mandatory life sentence. The plain meaning of this language
is that a qualifying state conviction must have
been based on conduct that—although lacking a federal
nexus—would have constituted a “Federal sex offense”
had such a federal nexus existed. Accord United States
v. Sinerius, 504 F.3d 737, 743-44 (9th Cir. 2007) (citing
§ 3559(e)(2)(B) as an example of a statute that “expressly”
requires a state offense to be congruent with a corresponding
federal offense).
Not only is Rosenbohm’s interpretation of § 3559(e)
contrary to the provision’s plain language, but it would
render portions of § 3559(e)(2)(B)(ii) insignificant and
largely superfluous, which is something we try to avoid.
See Duncan v. Walker, 533 U.S. 167, 174 (2001); United States
v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). The statute
expressly contemplates a prior state conviction, but, even
under the statute’s definition,4 no “state” prosecution
could occur in some of the geographic locales enumerated
in § 3559(e)(2)(B)(ii). A defendant would not have a
prior state conviction based on conduct occurring in a
special maritime or territorial jurisdiction, for example.
The statute also includes “any land or building owned
by, leased to, or otherwise used by or under the control
of the Government of the United States” (which could be
anywhere in the world) and “the Indian country.” Id.
We can think of numerous situations where no state
conviction would be possible in these locations, and to
read § 3559(e)(2)(B) in the manner Rosenbohm suggests
would mean that Congress served no purpose by including
these in the statute.
Another factor favoring our interpretation of § 3559(e) is
that Congress has passed similar statutes requiring that
conduct resulting in a prior state conviction be congruent
with a federal crime before a sentencing enhancement
applies. For example, 18 U.S.C. § 2241(c), which prohibits
aggravated sexual abuse against children, imposes a
mandatory life sentence if a defendant “has previously
been convicted of another Federal offense under this
subsection, or of a State offense that would have been
an offense under either such provision had the offense
occurred in a Federal prison” (emphases added). Presumably,
by limiting a repeat offender’s qualifying prior state
convictions to those that would have been a federal
offense had a federal nexus existed, Congress sought to
confine the serious penalty of a mandatory life sentence
to a standardized, uniform type of criminal conduct,
rather than rely on the states’ various definitions of their
offenses. The statute, as written, ensures that a defendant
previously convicted of a state offense is sentenced to a
mandatory life sentence for the same conduct as a qualifying
federal offense.
On the other hand, and as even Rosenbohm points out
in his brief, if Congress wanted to encompass any prior
state conviction for sexual misconduct involving a
minor, it certainly knew how to do so and could have
worded the statute more broadly. The criminal code is
full of provisions that enhance a penalty for repeat offenders
yet make no distinction between prior convictions
under state and federal law. See, e.g., 18 U.S.C. § 3592(c)(3)
(stating that an aggravating factor for considering
whether to impose the death penalty is a prior conviction
“of another Federal or State offense resulting in the death
of a person” (emphasis added)); 21 U.S.C. § 802(44) (defining
“felony drug offense” as one “punishable by imprisonment
for more than one year under any law of the
United States or of a State or foreign country that prohibits
or restricts conduct relating to [certain drugs]”(emphasis
added)); 21 U.S.C. § 841(b)(1)(A) (“If any person
commits a violation of this subparagraph . . . after two
or more prior convictions for a felony drug offense have
become final, such person shall be sentenced to a mandatory
term of life imprisonment . . . .” (emphasis added)).
Instead, Congress chose to restrict the prior state convictions
triggering § 3559(e)’s mandatory life sentence
to those based on conduct that violated the terms of
specifically enumerated federal laws.
Because we find the definition of a “State sex offense” to
be unambiguous, it is not necessary for us to address
the legislative history of § 3559(e). That said, even a
brief examination of that history supports our interpretation,
and, at the very least, there is no “clearly expressed
legislative intent to the contrary.” Turkette, 452 U.S. at
Consistent with Congress’s a 5 ppetite for appropriate acronyms,
the PROTECT Act is the short form of the Act’s full title: the
Prosecutorial Remedies and Other Tools to end the Exploitation
of Children Today Act of 2003.
580 (quotations omitted). Congress added § 3559(e) in
Section 106(a) of the PROTECT Act of 2003, Pub. L.
No. 108-21, 117 Stat. 650.5 According to House Reports, the
mandatory life sentence applies to “any person convicted
of a ‘Federal sex offense’ if they had previously
been convicted of a similar offense under either Federal or
state law.” H.R. Rep. No. 108-47(I), at 17 (2003) (emphases
added); see also H.R. Rep. No. 107-373, at 2 (2002). This
statement is similar to the final wording of the statute,
but the inclusion of the term “similar” in reference to a
comparison between “Federal or state law” indicates
that Congress intended to ensure that a state conviction
is congruent with its federal counterpart before imposing
a mandatory life sentence. Further, after
describing the increasing recurrence of sexual assault
against children and the high rate of recidivism among sex
offenders, the 2002 House Report concludes: “Children
have the right to grow up protected from sexual predators
and free from abuse. H.R. 2146 will protect America’s
children by permanently removing the worst offenders
from our society—those who repeatedly victimize children.”
H.R. Rep. No. 107-373, at 3 (2002). To provide
children this protection from only those sex offenders
who abused their victims using interstate commerce or
the mails or on federal land would frustrate Congress’s
intent in enacting § 3559(e).
For these reasons, we agree with the government that,
under § 3559(e), a mandatory life sentence is appropriate
for a defendant with a prior state conviction based on
conduct that would have been a “Federal sex offense” had
there been a basis for federal jurisdiction. The statute
does not require that a federal jurisdictional hook actually
exist. In other words, the statute demands only that
the conduct resulting in the prior state conviction satisfy
the elements of one of the Federal sex offenses enumerated
in § 3559(e)(2)(A) before a district court may rely on it as
the basis for imposing a mandatory life sentence.
Rosenbohm’s prior Illinois conviction for aggravated
criminal sexual assault meets that requirement, and it is
therefore a qualifying “State sex offense” under § 3559(e).
One additional argument merits brief discussion.
Rosenbohm contends that, even if we interpret § 3559(e)
in the government’s favor, we should apply the rule of
lenity because the statute was ambiguous, and we
should not impose a mandatory life sentence “based
upon mere speculation as to Congressional intent.” (Petr.’s
Br. 17-18.) The rule of lenity instructs courts to read an
ambiguous statute narrowly to ensure “fair warning of the
boundaries of criminal conduct and that legislatures, not
courts, define criminal liability.” Crandon v. United States,
494 U.S. 152, 158 (1990). The rule applies, however, only
when the statute is, in fact, ambiguous. See Moskal v.
United States, 498 U.S. 103, 107 (1990) (“[T]he touchstone
of the rule of lenity is statutory ambiguity.” (quotations
omitted)). Thus, we only need to reach the issue if “a
reasonable doubt persists about a statute’s intended scope
even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Id. at
108 (quoting Bifulco v. United States, 447 U.S. 381, 387
(1980)). We have no doubt about the intended scope of
§ 3559(e)’s definition of a “State sex offense,” and we are
not resorting to “mere speculation as to Congressional
intent” in our interpretation. The rule of lenity does not
apply.
For the above reasons, the district court did not err
in sentencing Rosenbohm to a mandatory life sentence.
We AFFIRM.
4-30-09
Chicago Criminal Lawyer - Robert J Callahan
Thursday, May 7, 2009
U.S. vs. David Olofson
David Olofson was indicted for
knowingly transferring a machinegun in violation of 18
U.S.C. § 922(o). A jury convicted Olofson of the charged
offense following a two-day trial, and the district court
Four of the AR-15’s 1 fire control components were parts from
M-16 rifles: the trigger, hammer, disconnector, and selector
switch.
sentenced him to thirty months’ imprisonment. Olofson
appeals his conviction. For the following reasons, we
affirm.
I. Background
Robert Kiernicki saw a “for sale” advertisement for a
Colt AR-15 rifle that David Olofson had posted at a gas
station in New Berlin, Wisconsin. Kiernicki called Olofson
at the phone number listed on the ad to inquire about
the weapon. Olofson informed Kiernicki that the advertised
gun was no longer available but agreed to order
and assemble another Colt AR-15 for Kiernicki. In the
meantime, Olofson loaned Kiernicki an AR-151 and hundreds
of rounds of ammunition on four separate occasions.
The selector switch on the borrowed AR-15 had
three positions: one marked “fire,” one marked “safety,”
and one that was unmarked. Olofson and Kiernicki discussed
the unmarked setting on July 13, 2006, which
was the fourth time that Olofson loaned Kiernicki the
weapon. Olofson told Kiernicki that putting the selector
switch in the unmarked position would enable the AR-15
to fire a three-round burst with a single pull of the
trigger, but the gun would then jam.
While at a shooting range that same day, Kiernicki (for
the first time since using the gun) switched the AR-15 to
the unmarked position and pulled the trigger; three or
four rounds were discharged before the gun jammed.
Kiernicki fired the weapon in that fashion several times,
and each time it jammed after a short burst of three or
four rounds. Police received a telephone complaint of
automatic gunfire at the shooting range. When officers
arrived at the range, they confiscated the AR-15 from
Kiernicki. Kiernicki told the police that he had borrowed
the gun from Olofson. Several days later, agents from
the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) interviewed Olofson while executing a search
warrant at his home. During that conversation, Olofson
acknowledged loaning the AR-15 to Kiernicki.
On December 5, 2006, a grand jury indicted Olofson
for knowingly transferring a machinegun in violation of
18 U.S.C. § 922(o). Shortly before trial, Olofson filed a
motion to compel the government to disclose evidence
of the ATF’s firearms testing procedures, correspondence
between the ATF and the manufacturer of Olofson’s AR-
15 about the use of M-16 parts in AR-15 rifles, and the
ATF’s registration history of AR-15 rifles that contain M-
16 parts. The district court denied that motion on the
first day of trial after concluding that the information
the defendant was seeking was not exculpatory under
Brady v. Maryland, 373 U.S. 83 (1963).
At trial, the government asked the district court to
exclude Olofson’s expert witness from the courtroom
during the testimony of its firearms expert. Over Olofson’s
objection, the court granted the government’s request.
The government’s expert testified that he used military
grade ammunition the first time he test-fired the AR-15
with the selector switch in the unmarked position and that
the gun fired only one round. Later, using civilian-grade
ammunition, he conducted two more test-fires of the
weapon in the unmarked mode. In one of those tests, he
held the trigger down and the gun fired all of its ammunition
(twenty rounds) before stopping. He also emptied
two twenty-round magazines in five- or ten-round bursts
by depressing, holding, and releasing the trigger several
times. The government’s expert stated that such firing
capabilities did not result from a “hammer-follow” malfunction
but rather were intended features of the gun.
After the close of the evidence, the court used the
definition of a “machinegun” from 26 U.S.C. § 5845(b) to
instruct the jury and chose not to define the word “automatically”
from that statute as the defendant had requested.
Following deliberation, the jury returned a
guilty verdict. Olofson then moved for a judgment of
acquittal, arguing that the evidence presented at trial
was insufficient to convict him of the charged offense
and that the statutes under which he was prosecuted are
unconstitutionally vague. The district court denied that
motion and sentenced Olofson to thirty months in prison.
Olofson appeals, challenging his conviction on five
grounds.
II. Discussion
A. Olofson’s Proposed Jury Instruction
Title 18 U.S.C. § 922(o)(1) provides that, subject to
exceptions not relevant here, “it shall be unlawful for
According to 18 U.S.C. § 921(a)(2 23), “[a]s used in this chapter[,]
[t]he term ‘machinegun’ has the meaning given such term
in section 5845(b) of the National Firearms Act (26 U.S.C.
[§] 5845(b)).”
3 The defendant contends that if that instruction had been
given, the jury could have found him not guilty because a
(continued...)
any person to transfer or possess a machinegun.” The
applicable definition2 of a “machinegun” is
any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the
trigger. The term shall also include the frame or receiver
of any such weapon, any part designed and
intended solely and exclusively, or combination of
parts designed and intended, for use in converting a
weapon into a machinegun, and any combination
of parts from which a machinegun can be assembled
if such parts are in the possession or under the
control of a person.
26 U.S.C. § 5845(b) (emphasis added). The district court
instructed the jury using the first sentence of § 5845(b)
but did not give any guidance on the meaning of the
word “automatically.” Olofson contends that the court
inaccurately stated the law when it did not instruct the
jury using the definition of “automatically” that derives
from Staples v. United States, 511 U.S. 600, 602 n.1 (1994),
and that we allegedly adopted in United States v.
Fleischli, 305 F.3d 643, 655 (7th Cir. 2002).3 Whether jury
3 (...continued)
malfunction was the reason the weapon stopped firing or,
alternatively, was what caused the gun to fire more than one
round with a single trigger pull.
instructions correctly state the law is a matter we review
de novo. United States v. Thornton, 539 F.3d 741, 745 (7th
Cir. 2008). We will reverse only if the instructions
viewed as a whole misled the jury to the defendant’s
prejudice. Id.
In Staples, the defendant was convicted of possession
of an unregistered machinegun. 511 U.S. at 603-04. At
trial, the defendant insisted that he did not know that
the weapon was capable of firing automatically (which
is one of the features of a “machinegun” under § 5845(b))
and requested a jury instruction that the government
must prove beyond a reasonable doubt that he knew the
gun could fire in such a manner. Id. The district court
refused to give the defendant’s proposed instruction;
instead, it gave an instruction that discounted the defendant’s
need for knowledge of every characteristic of the
weapon that made it subject to regulation. Id. at 604. The
Tenth Circuit affirmed, holding that “the Government
need not prove a defendant’s knowledge of a weapon’s
physical properties to obtain a conviction.” Id. In
reversing, the Supreme Court held that the government
was required to prove that the defendant knew of
the characteristics of the gun that brought it within
the ambit of the statute. Id. at 619.
At the beginning of its opinion, the Court quoted the
statutory definition of “machinegun” from § 5845(b) and
stated that “any fully automatic weapon is a ‘firearm’
within the meaning of the Act.” Id. at 602. In a footnote,
the Court then said the following:
As used here, the terms “automatic” and “fully automatic”
refer to a weapon that fires repeatedly with a
single pull of the trigger. That is, once its trigger is
depressed, the weapon will automatically continue to fire
until its trigger is released or the ammunition is exhausted.
Such weapons are “machineguns” within the
meaning of the Act.
Id. at n.1 (emphasis added).
The narrow holding from Staples is that mens rea was
an element of the crime in question—i.e., that the government
had to prove the defendant’s knowledge of the
features of the weapon (including automatic firing capability)
that brought it within the proscriptive purview of
the statute. Id. at 619. The precise definition of “automatically”
was not at issue; therefore, the Court’s discussion of
the terms “automatic” and “fully automatic” was immaterial
to its holding. Indeed, the Court prefaced its explanation
of the terms “automatic” and “fully automatic” with
the phrase “[a]s used here.” Thus, rather than interpreting
a statute, the Court simply was providing a glossary
for terms frequently appearing in the opinion. Therefore,
Staples did not establish a requirement for district courts
to instruct juries on the meaning of “automatically” from
§ 5845(b).
The same is true of our decision in Fleischli. In that case,
the defendant was convicted of two counts of possession
of machineguns in violation of 18 U.S.C. § 922(o)(1).
Fleischli, 305 F.3d at 647. The defendant argued that a
certain weapon was not a machinegun under § 5845(b)
because it did not fire automatically and did not have a
trigger. Id. at 654. Fleischli relied upon the definition of
a semiautomatic rifle from 18 U.S.C. § 921(a)(28) to assert
that a gun does not fire automatically “unless it uses a
portion of the energy of a firing cartridge to extract the
fired cartridge and chamber the next round without a
separate pull of the trigger.” Id. at 655. This court concluded
that the gun’s electronic on/off switch that
initiated the firing sequence was a trigger and, having
quoted from footnote one in Staples, stated that if the
gun continued to fire until that switch was turned off
or until the ammunition was exhausted, it was a
machinegun. Id. at 655-56.
Olofson suggests that Fleischli obliged the district court
to give his proffered instruction. True, in Fleischli we
did borrow terminology from Staples in order to stamp
out the appellant’s “disingenuous argument”; id. at 655;
however, we never purported to be setting forth a comprehensive
definition of “automatically” from § 5845(b).
Indeed, we described the Staples footnote as merely
“offer[ing] commonsense explanations” of the words
“automatic” and “semiautomatic,” which confirms that
we did not consider that passage to be precedentially
binding. As we explain below, a weapon does not have
to continue to fire until its trigger is released or its ammunition
is exhausted in order to qualify as a
“machinegun” under § 5845(b). Therefore, Olofson’s
reliance on Fleischli for that proposition is misplaced.
We turn now to address what the word “automatically”
means as it is used in the definition of “machinegun” in
§ 5845(b). “Statutory interpretation begins with the
plain language of the statute.” United States v. Berkos, 543
F.3d 392, 396 (7th Cir. 2008). We assume that the
purpose of the statute is communicated by the ordinary
meaning of the words Congress used; therefore, absent
any clear indication of a contrary purpose, the plain
language is conclusive. Id.
Again, “[t]he term ‘machinegun’ means any weapon
which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the
trigger.” 26 U.S.C. § 5845(b). “The most relevant time
for determining a statutory term’s meaning” is the year
of the provision’s enactment. MCI Telecomms. Corp. v. Am.
Tel. & Tel. Co., 512 U.S. 218, 228 (1994) (citing Perrin v.
United States, 444 U.S. 37, 42-45 (1979)). Therefore, we
examine how “automatically” was commonly used and
understood in 1934, the year in which the definition of
“machinegun” became law with the passage of the National
Firearms Act, Pub. L. 73-474, 48 Stat. 1236. A
leading dictionary from 1934 tells us that “automatically”
is the adverbial form of “automatic.” WEBSTER’S
NEW INTERNATIONAL DICTIONARY 187 (2d ed. 1934). The
adjectival form of “automatic” is relevantly defined by
that dictionary as “[h]aving a self-acting or selfregulating
mechanism that performs a required act at a
predetermined point in an operation[.]” Id. Another
contemporaneous dictionary similarly describes “automatic”
as “[s]elf-acting under conditions fixed for it, going
4 Modern versions of those two dictionaries define “automatic”
in the same terms. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 148 (2002); OXFORD ENGLISH DICTIONARY 805 (2d ed.
1989).
5 For the sake of efficiency and readability, we use the term
“shoots” as shorthand for “shoots, is designed to shoot, or can
be readily restored to shoot,” unless otherwise indicated.
of itself.” OXFORD ENGLISH DICTIONARY 574 (1933).4 Thus
defined, in § 5845(b) the adverb “automatically,” as it
modifies the verb “shoots,”5 delineates how the discharge
of multiple rounds from a weapon occurs: as the
result of a self-acting mechanism. That mechanism is one
that is set in motion by a single function of the trigger
and is accomplished without manual reloading.
That interpretation clearly forecloses the argument that
a weapon is not a machinegun merely because it stopped
firing due to a malfunction; indeed, the reason a weapon
ceased firing is not a matter with which § 5845(b) is
concerned. Under that interpretation, however, a defendant
can still argue that the reason a gun fired more than
one round (with a single pull of the trigger without
manual reloading) was due to a malfunction—i.e., the
additional rounds fired resulted from a mishap rather
than from a regular self-acting mechanism.
In light of the foregoing interpretation, we conclude
that Olofson’s proffered instruction was not an accurate
statement of the law and that the district court properly
rejected it. Moreover, the district court correctly used
§ 5845(b) to instruct the jury. As used in the statute,
“automatically” comports with its ordinary modern
meaning, see note 4, that is readily accessible to laypersons
and is in no sense confusing; therefore, the district court
was not required to define that term for the jury. United
States v. Castillo, 406 F.3d 806, 821 (7th Cir. 2005); Miller
v. Neathery, 52 F.3d 634, 638 (7th Cir. 1995).
B. Sufficiency of the Evidence
Olofson contends that the evidence presented at trial
was insufficient to sustain his conviction. When a defendant
challenges the sufficiency of the evidence, we
view the evidence in the light most favorable to the
government and will reverse the conviction only if no
rational jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Castaldi, 547
F.3d 699, 705 (7th Cir. 2008). In order to convict a person
of violating 18 U.S.C. § 922(o)(1), the government must
prove that 1) the defendant possessed or transferred a
machinegun 2) with knowledge that the weapon had
the characteristics that bring it within the statutory definition
of a machinegun. United States v. McGiffen, 267
F.3d 581, 590 (7th Cir. 2001).
Regarding the first element, Kiernicki testified that
Olofson loaned him the AR-15 on four occasions, the last
of which was July 13, 2006. An ATF agent also testified
that Olofson admitted loaning the gun to Kiernicki. In
addition, Kiernicki stated that the gun fired three or
four rounds (on several occasions) with one pull of the
trigger. The government’s expert who test-fired the AR
The jury heard the testimony of the 6 defendant’s firearms
expert about the AR-15’s supposed malfunctioning and obviously
rejected it; on a sufficiency-of-the-evidence challenge,
we will not second-guess the jury’s credibility determinations.
United States v. Brandt, 546 F.3d 912, 917 (7th Cir. 2008).
15 stated that he exhausted a twenty-round magazine
with one continuous depression of the trigger and
emptied two additional twenty-round magazines in fiveor
ten-round bursts by intermittently depressing, holding,
and releasing the trigger. He also declared that the
weapon was intended to fire in such fashions and that a
“hammer-follow” malfunction was not the cause. That
evidence was adequate to permit a reasonable jury to
find beyond a reasonable doubt that Olofson transferred
a “machinegun” as defined by § 5845(b). Regarding the
evidence on the knowledge element, Kiernicki said that
Olofson told him “the three-round burst wouldn’t work
and that it would jam up.” Kiernicki understood that
statement to mean that “[t]hree rounds come out of it
when you would pull the trigger” once. That testimony
was sufficient for a reasonable jury to find beyond a
reasonable doubt that the defendant knew that the AR-15,
with a single pull of the trigger and without manual
reloading, could shoot more than one round as the result
of a self-acting mechanism. For these reasons, the defendant’s
challenge to the sufficiency of the evidence fails.6
C. Unconstitutional Vagueness
Olofson argues that 18 U.S.C. §§ 922(o) and 924(a)(2) are
unconstitutionally vague. We review the constitutionality
7 Olofson does not present any cogent argument that §§ 922(o)
and 924(a)(2) lack standards to prevent arbitrary or discriminatory
enforcement.
of a statute de novo. United States v. Warner, 498 F.3d 666,
697 (7th Cir. 2007). A statute is unconstitutionally vague
if it either “1) does not provide a person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, or 2) fails to provide explicit standards to
prevent arbitrary and discriminatory enforcement by
those enforcing the statute.” United States v. Lim, 444
F.3d 910, 915 (7th Cir. 2006). A vagueness challenge such
as this one that does not implicate First Amendment
freedoms is analyzed as applied to the specific facts of
the case. Id.
To the extent Olofson contends that the statutes are
fatally vague due to the way “automatically” is used in the
incorporated definition of “machinegun” from § 5845(b),
we disagree. We have already noted that the common
meaning of “automatically” is readily known by laypersons
and thus a specific instruction defining the term
for the jury was unnecessary. Similarly, a person of ordinary
intelligence would have understood the common
meaning of the term—“as the result of a self-acting mechanism”—
and thus would have had fair warning of the
relevant features of a weapon that § 5845(b) covers and that
§§ 922(o) and 924(a)(2) regulate. Therefore, we reject
Olofson’s argument that §§ 922(o) and 924(a)(2) are unconstitutionally
vague.
D. Exclusion of Olofson’s Firearms Expert from the Courtroom
The defendant also argues that the district court improperly
granted the government’s request to exclude his
firearms expert (Len Savage) from the courtroom during
the testimony of the government’s firearms expert. Olofson
contends that the presence of his expert during the testimony
of the government’s expert was essential to the
presentation of his case.
Under Federal Rule of Evidence 615, “[a]t the request of
a party the court shall order witnesses excluded so that
they cannot hear the testimony of other witnesses, and
it may make the order of its own motion.” That rule
does not authorize the exclusion of four categories of
persons, including “a person whose presence is shown
by a party to be essential to the presentation of the
party’s cause.” FED. R. EVID. 615(3). As the party asserting
a Rule 615(3) exception, Olofson bore the burden for
showing that the exception applied. Opus 3, Ltd. v. Heritage
Park, Inc., 91 F.3d 625, 628 (4th Cir. 1996); United States
v. Jackson, 60 F.3d 128, 135 (2d Cir. 1995). We review for
an abuse of discretion a district court’s decision about
the essentiality of a witness’s presence under Rule 615(3).
Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 916
(9th Cir. 2005); Opus 3, 91 F.3d at 629; Jackson, 60 F.3d
at 135-36.
At trial, Olofson presented two reasons for opposing the
government’s request to exclude Savage from the courtroom.
First, he argued that because Federal Rule of Evidence
703 permits an expert to base his opinion upon facts
or data made known to him at trial, Savage “should be
allowed to be present to hear” the government expert’s
testimony. However, merely because Rule 703 contemplates
that an expert may render an opinion based on
facts or data made known at trial does not necessarily
mean that an expert witness is exempt from a Rule 615
sequestration order. The text of Rule 615 plainly does not
provide for such a per se exception; rather, Rule 615(3)
confers discretion upon district courts to determine
whether a given witness (of whatever stripe) is essential.
We agree with the courts of appeals that have addressed
the issue that Rule 703 is not an automatic exemption for
expert witnesses from Rule 615 sequestration. Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1374 (5th Cir.
1981); Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 630
(6th Cir. 1978); see Opus 3, 91 F.3d at 629. Therefore, the
mere mention of Rule 703 by Olofson was insufficient
to show that a Rule 615(3) exception was warranted.
Second, Olofson stated that he “would like to have
Mr. Savage present to hear” the government expert’s
testimony on malfunctions so that he could “rebut or add
information” if such testimony was incomplete or incorrect.
While no precise incantation is required, we doubt
whether those statements advanced the argument that
Savage’s presence was essential under Rule 615(3). Olofson
did not tell the district court (as he tells us on appeal) that
Savage’s presence was of critical import to his highlytechnical
defense that the AR-15 malfunctioned. Even
assuming that he did make the argument, Olofson did not
carry his burden of demonstrating essentiality. The defendant
stated that Savage should be allowed to hear the
government expert’s testimony so that Savage could “rebut
or add information” to any inaccurate testimony about
malfunctions, but Olofson did not tell the district court
why Savage’s presence was necessary to achieve that end.
Indeed, much of the data and malfunction information
relied upon by the government’s expert was already
known to Savage due to the pre-trial disclosure of the
government expert’s reports, and Savage had the opportunity
to respond to such materials during the defendant’s
case. Regarding any information which was not
included in the reports but may have come into
evidence during the testimony of the government’s
expert, Olofson had ample opportunity on direct examination
for Savage to rebut, add to, or opine on the implications
of such information by asking him to assume its
existence.
Although it might have been helpful or desirable for
Savage to hear the government expert’s testimony,
Olofson did not show that Savage’s presence was
essential to the presentation of his case. Therefore, the
district court did not abuse its discretion in denying
Savage a sequestration exemption under Rule 615(3).
E. Denial of Olofson’s Discovery Requests
Prior to trial and pursuant to Brady, Olofson made a
motion to compel the discovery of evidence he had requested
but that the government had not produced. The
defendant sought: 1) documentation of the procedures
used by the ATF in testing the AR-15; 2) correspondence
between the ATF and the manufacturer of the defendant’s
AR-15 concerning the use of M-16 parts in early AR-15
rifles; 3) information about changes in the ATF’s registry
of AR-15 rifles with M-16 components; and 4) documents
pertaining to the ATF’s refusal to register AR-15 rifles
with M-16 parts. The district court denied the defendant’s
motion on the first day of trial after concluding that
the information sought was not exculpatory. On appeal,
Olofson claims that the district court committed
prejudicial error in denying his Brady motion and that he
therefore is entitled to a new trial. We review a district
court’s decision that evidence need not be produced under
Brady for an abuse of discretion. United States v. Dabney,
498 F.3d 455, 459 (7th Cir. 2007).
Under Brady, the government is constrained to disclose
evidence that is favorable to a defendant and material to
either his guilt or punishment. United States v. Fallon, 348
F.3d 248, 251 (7th Cir. 2003). Favorable evidence
includes both impeachment and exculpatory evidence.
United States v. Baker, 453 F.3d 419, 422 (7th Cir. 2006). Even
when the government has not disclosed such evidence,
“strictly speaking, there is never a real ‘Brady violation’
unless the nondisclosure was so serious that there is a
reasonable probability that the suppressed evidence
would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999). “We have described this
inquiry as ‘materiality,’ and stated that the demonstration
of materiality is the key to obtaining a new trial
where a defendant alleges a Brady violation.” Baker, 453
F.3d at 422. Thus there are three parts to a Brady violation:
1) the disputed evidence must be favorable to the
defendant, either because it is exculpatory or im18
peaching; 2) that evidence must have been suppressed by
the government, either willfully or inadvertently; and 3)
prejudice must have occurred. Strickler, 527 U.S. at 281-82.
Regarding the first non-disclosed item—the ATF’s
internal procedures for test-firing AR-15 rifles—Olofson
says he wanted that information because “[f]ailure to
follow those procedures by changing the type of ammunition
in the second test could demonstrate that the
tests had been manipulated to arrive at a reversal of the
results of the first test.” We do not see how that information
could have exculpated Olofson; section 5845(b) does
not require compliance with ATF test-fire procedures in
order for a weapon to qualify as a machinegun, nor
must the weapon fire any particular grade of ammunition
or in the prohibited fashion during the first test-fire.
Assuming that such evidence might have had some
impeachment value, there was no Brady violation because
the government’s expert was otherwise sufficiently impeached.
United States v. Ervin, 540 F.3d 623, 632 (7th Cir.
2008) (“Brady does not extend to ‘evidence that impeaches
an already thoroughly impeached witness.’ ” (quoting
United States v. Kozinski, 16 F.3d 795, 819 (7th Cir. 1994))).
Specifically, Olofson questioned the government’s expert
at length about ATF test-fire procedures and the types of
ammunition used in the tests. In addition, the government’s
expert admitted that the gun fired automatically
more than one round with a single function of the trigger
without manual reloading in the second test with civiliangrade
rounds, but jammed in the first test with militarygrade
rounds. Even if the second test was inconsistent
with ATF procedures, that fact would not undermine
8 The government’s theory of the case was that the AR-15
functioned as a machinegun, thus implicating the first sentence
of § 5845(b)’s definition of the term. As discussed earlier, the
district court instructed the jury using only that part of
§ 5845(b), and sufficient evidence of Olofson’s knowledge of
the AR-15’s firing capacity was presented to convict him. Had
the government attempted to prove that a part or combination
(continued...)
confidence in the outcome of the trial. Kyles v. Whitney, 514
U.S. 419, 434 (1995). Therefore, the district court did not
abuse its discretion in denying the defendant’s motion
to compel the production of that evidence.
With respect to his request for the ATF’s correspondence
with the manufacturer of his AR-15 concerning the use
of M-16 parts in early AR-15 rifles, the defendant contends
that evidence was exculpatory because it was
relevant to his knowledge of whether or not his AR-15
was a machinegun. The district court denied Olofson’s
request on the first day of trial. At the sentencing hearing,
the court revisited the issue; the court inspected a document
in camera, stated that it was not exculpatory, and
placed it under seal. We subsequently ordered that document
to be unsealed. That evidence is a 1983 letter from
the ATF to the manufacturer of the AR-15 in which the
ATF advised the company that the installation of certain
M-16 parts in AR-15 receivers may permit the weapon
to fire automatically even though an automatic sear is not
present. We agree with the district court that the document
is not exculpatory: it has no bearing on Olofson’s
knowledge of whether his AR-15 was a machinegun.8 The
8 (...continued)
of parts in the AR-15 made it a machinegun under the second
sentence of § 5845(b), then perhaps evidence about the manufacturer’s
installation of M-16 parts in AR-15s would have
been relevant to the defendant’s knowledge of those parts in
the weapon.
letter has no impeachment value either. Therefore, the
district court did not abuse its discretion in refusing to
order the production of that evidence.
Lastly, Olofson argues that any documents relating to
the ATF’s change in registry or refusal to register AR-15
rifles with M-16 components were exculpatory because
they could have been used to refute the government
expert’s testimony that the M-16 parts in Olofson’s AR-15
made it a machinegun. But the government’s expert did
not testify that the AR-15 was a machinegun merely
because it had M-16 parts; rather, the expert stated that
the AR-15 fired the way it did due in part to the M-16
components. Regardless, like the district court, we do not
see how the ATF’s opinions or positions regarding the
presence of M-16 parts in AR-15 rifles are the least bit
germane to Olofson’s conviction for knowingly transferring
a machinegun. The district court did not abuse its discretion
in denying Olofson’s motion to compel the government
to produce that evidence.
III. Conclusion
In sum, the defendant’s proffered jury instruction was
not a correct statement of the law, and the district court
properly rejected it. Furthermore, the evidence presented
at trial was sufficient to sustain Olofson’s conviction, and
18 U.S.C. §§ 922(o) and 924(a)(2) are not unconstitutionally
vague as applied to the facts of this case. In addition, the
district court did not abuse its discretion in either excluding
the defendant’s firearms expert from the courtroom
during the government expert’s testimony or in
denying Olofson’s motion to compel the production of
evidence he had requested from the government. Accordingly,
we AFFIRM Olofson’s conviction.
5-1-09
Chicago Criminal Lawyer - Robert J Callahan
knowingly transferring a machinegun in violation of 18
U.S.C. § 922(o). A jury convicted Olofson of the charged
offense following a two-day trial, and the district court
Four of the AR-15’s 1 fire control components were parts from
M-16 rifles: the trigger, hammer, disconnector, and selector
switch.
sentenced him to thirty months’ imprisonment. Olofson
appeals his conviction. For the following reasons, we
affirm.
I. Background
Robert Kiernicki saw a “for sale” advertisement for a
Colt AR-15 rifle that David Olofson had posted at a gas
station in New Berlin, Wisconsin. Kiernicki called Olofson
at the phone number listed on the ad to inquire about
the weapon. Olofson informed Kiernicki that the advertised
gun was no longer available but agreed to order
and assemble another Colt AR-15 for Kiernicki. In the
meantime, Olofson loaned Kiernicki an AR-151 and hundreds
of rounds of ammunition on four separate occasions.
The selector switch on the borrowed AR-15 had
three positions: one marked “fire,” one marked “safety,”
and one that was unmarked. Olofson and Kiernicki discussed
the unmarked setting on July 13, 2006, which
was the fourth time that Olofson loaned Kiernicki the
weapon. Olofson told Kiernicki that putting the selector
switch in the unmarked position would enable the AR-15
to fire a three-round burst with a single pull of the
trigger, but the gun would then jam.
While at a shooting range that same day, Kiernicki (for
the first time since using the gun) switched the AR-15 to
the unmarked position and pulled the trigger; three or
four rounds were discharged before the gun jammed.
Kiernicki fired the weapon in that fashion several times,
and each time it jammed after a short burst of three or
four rounds. Police received a telephone complaint of
automatic gunfire at the shooting range. When officers
arrived at the range, they confiscated the AR-15 from
Kiernicki. Kiernicki told the police that he had borrowed
the gun from Olofson. Several days later, agents from
the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) interviewed Olofson while executing a search
warrant at his home. During that conversation, Olofson
acknowledged loaning the AR-15 to Kiernicki.
On December 5, 2006, a grand jury indicted Olofson
for knowingly transferring a machinegun in violation of
18 U.S.C. § 922(o). Shortly before trial, Olofson filed a
motion to compel the government to disclose evidence
of the ATF’s firearms testing procedures, correspondence
between the ATF and the manufacturer of Olofson’s AR-
15 about the use of M-16 parts in AR-15 rifles, and the
ATF’s registration history of AR-15 rifles that contain M-
16 parts. The district court denied that motion on the
first day of trial after concluding that the information
the defendant was seeking was not exculpatory under
Brady v. Maryland, 373 U.S. 83 (1963).
At trial, the government asked the district court to
exclude Olofson’s expert witness from the courtroom
during the testimony of its firearms expert. Over Olofson’s
objection, the court granted the government’s request.
The government’s expert testified that he used military
grade ammunition the first time he test-fired the AR-15
with the selector switch in the unmarked position and that
the gun fired only one round. Later, using civilian-grade
ammunition, he conducted two more test-fires of the
weapon in the unmarked mode. In one of those tests, he
held the trigger down and the gun fired all of its ammunition
(twenty rounds) before stopping. He also emptied
two twenty-round magazines in five- or ten-round bursts
by depressing, holding, and releasing the trigger several
times. The government’s expert stated that such firing
capabilities did not result from a “hammer-follow” malfunction
but rather were intended features of the gun.
After the close of the evidence, the court used the
definition of a “machinegun” from 26 U.S.C. § 5845(b) to
instruct the jury and chose not to define the word “automatically”
from that statute as the defendant had requested.
Following deliberation, the jury returned a
guilty verdict. Olofson then moved for a judgment of
acquittal, arguing that the evidence presented at trial
was insufficient to convict him of the charged offense
and that the statutes under which he was prosecuted are
unconstitutionally vague. The district court denied that
motion and sentenced Olofson to thirty months in prison.
Olofson appeals, challenging his conviction on five
grounds.
II. Discussion
A. Olofson’s Proposed Jury Instruction
Title 18 U.S.C. § 922(o)(1) provides that, subject to
exceptions not relevant here, “it shall be unlawful for
According to 18 U.S.C. § 921(a)(2 23), “[a]s used in this chapter[,]
[t]he term ‘machinegun’ has the meaning given such term
in section 5845(b) of the National Firearms Act (26 U.S.C.
[§] 5845(b)).”
3 The defendant contends that if that instruction had been
given, the jury could have found him not guilty because a
(continued...)
any person to transfer or possess a machinegun.” The
applicable definition2 of a “machinegun” is
any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the
trigger. The term shall also include the frame or receiver
of any such weapon, any part designed and
intended solely and exclusively, or combination of
parts designed and intended, for use in converting a
weapon into a machinegun, and any combination
of parts from which a machinegun can be assembled
if such parts are in the possession or under the
control of a person.
26 U.S.C. § 5845(b) (emphasis added). The district court
instructed the jury using the first sentence of § 5845(b)
but did not give any guidance on the meaning of the
word “automatically.” Olofson contends that the court
inaccurately stated the law when it did not instruct the
jury using the definition of “automatically” that derives
from Staples v. United States, 511 U.S. 600, 602 n.1 (1994),
and that we allegedly adopted in United States v.
Fleischli, 305 F.3d 643, 655 (7th Cir. 2002).3 Whether jury
3 (...continued)
malfunction was the reason the weapon stopped firing or,
alternatively, was what caused the gun to fire more than one
round with a single trigger pull.
instructions correctly state the law is a matter we review
de novo. United States v. Thornton, 539 F.3d 741, 745 (7th
Cir. 2008). We will reverse only if the instructions
viewed as a whole misled the jury to the defendant’s
prejudice. Id.
In Staples, the defendant was convicted of possession
of an unregistered machinegun. 511 U.S. at 603-04. At
trial, the defendant insisted that he did not know that
the weapon was capable of firing automatically (which
is one of the features of a “machinegun” under § 5845(b))
and requested a jury instruction that the government
must prove beyond a reasonable doubt that he knew the
gun could fire in such a manner. Id. The district court
refused to give the defendant’s proposed instruction;
instead, it gave an instruction that discounted the defendant’s
need for knowledge of every characteristic of the
weapon that made it subject to regulation. Id. at 604. The
Tenth Circuit affirmed, holding that “the Government
need not prove a defendant’s knowledge of a weapon’s
physical properties to obtain a conviction.” Id. In
reversing, the Supreme Court held that the government
was required to prove that the defendant knew of
the characteristics of the gun that brought it within
the ambit of the statute. Id. at 619.
At the beginning of its opinion, the Court quoted the
statutory definition of “machinegun” from § 5845(b) and
stated that “any fully automatic weapon is a ‘firearm’
within the meaning of the Act.” Id. at 602. In a footnote,
the Court then said the following:
As used here, the terms “automatic” and “fully automatic”
refer to a weapon that fires repeatedly with a
single pull of the trigger. That is, once its trigger is
depressed, the weapon will automatically continue to fire
until its trigger is released or the ammunition is exhausted.
Such weapons are “machineguns” within the
meaning of the Act.
Id. at n.1 (emphasis added).
The narrow holding from Staples is that mens rea was
an element of the crime in question—i.e., that the government
had to prove the defendant’s knowledge of the
features of the weapon (including automatic firing capability)
that brought it within the proscriptive purview of
the statute. Id. at 619. The precise definition of “automatically”
was not at issue; therefore, the Court’s discussion of
the terms “automatic” and “fully automatic” was immaterial
to its holding. Indeed, the Court prefaced its explanation
of the terms “automatic” and “fully automatic” with
the phrase “[a]s used here.” Thus, rather than interpreting
a statute, the Court simply was providing a glossary
for terms frequently appearing in the opinion. Therefore,
Staples did not establish a requirement for district courts
to instruct juries on the meaning of “automatically” from
§ 5845(b).
The same is true of our decision in Fleischli. In that case,
the defendant was convicted of two counts of possession
of machineguns in violation of 18 U.S.C. § 922(o)(1).
Fleischli, 305 F.3d at 647. The defendant argued that a
certain weapon was not a machinegun under § 5845(b)
because it did not fire automatically and did not have a
trigger. Id. at 654. Fleischli relied upon the definition of
a semiautomatic rifle from 18 U.S.C. § 921(a)(28) to assert
that a gun does not fire automatically “unless it uses a
portion of the energy of a firing cartridge to extract the
fired cartridge and chamber the next round without a
separate pull of the trigger.” Id. at 655. This court concluded
that the gun’s electronic on/off switch that
initiated the firing sequence was a trigger and, having
quoted from footnote one in Staples, stated that if the
gun continued to fire until that switch was turned off
or until the ammunition was exhausted, it was a
machinegun. Id. at 655-56.
Olofson suggests that Fleischli obliged the district court
to give his proffered instruction. True, in Fleischli we
did borrow terminology from Staples in order to stamp
out the appellant’s “disingenuous argument”; id. at 655;
however, we never purported to be setting forth a comprehensive
definition of “automatically” from § 5845(b).
Indeed, we described the Staples footnote as merely
“offer[ing] commonsense explanations” of the words
“automatic” and “semiautomatic,” which confirms that
we did not consider that passage to be precedentially
binding. As we explain below, a weapon does not have
to continue to fire until its trigger is released or its ammunition
is exhausted in order to qualify as a
“machinegun” under § 5845(b). Therefore, Olofson’s
reliance on Fleischli for that proposition is misplaced.
We turn now to address what the word “automatically”
means as it is used in the definition of “machinegun” in
§ 5845(b). “Statutory interpretation begins with the
plain language of the statute.” United States v. Berkos, 543
F.3d 392, 396 (7th Cir. 2008). We assume that the
purpose of the statute is communicated by the ordinary
meaning of the words Congress used; therefore, absent
any clear indication of a contrary purpose, the plain
language is conclusive. Id.
Again, “[t]he term ‘machinegun’ means any weapon
which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the
trigger.” 26 U.S.C. § 5845(b). “The most relevant time
for determining a statutory term’s meaning” is the year
of the provision’s enactment. MCI Telecomms. Corp. v. Am.
Tel. & Tel. Co., 512 U.S. 218, 228 (1994) (citing Perrin v.
United States, 444 U.S. 37, 42-45 (1979)). Therefore, we
examine how “automatically” was commonly used and
understood in 1934, the year in which the definition of
“machinegun” became law with the passage of the National
Firearms Act, Pub. L. 73-474, 48 Stat. 1236. A
leading dictionary from 1934 tells us that “automatically”
is the adverbial form of “automatic.” WEBSTER’S
NEW INTERNATIONAL DICTIONARY 187 (2d ed. 1934). The
adjectival form of “automatic” is relevantly defined by
that dictionary as “[h]aving a self-acting or selfregulating
mechanism that performs a required act at a
predetermined point in an operation[.]” Id. Another
contemporaneous dictionary similarly describes “automatic”
as “[s]elf-acting under conditions fixed for it, going
4 Modern versions of those two dictionaries define “automatic”
in the same terms. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 148 (2002); OXFORD ENGLISH DICTIONARY 805 (2d ed.
1989).
5 For the sake of efficiency and readability, we use the term
“shoots” as shorthand for “shoots, is designed to shoot, or can
be readily restored to shoot,” unless otherwise indicated.
of itself.” OXFORD ENGLISH DICTIONARY 574 (1933).4 Thus
defined, in § 5845(b) the adverb “automatically,” as it
modifies the verb “shoots,”5 delineates how the discharge
of multiple rounds from a weapon occurs: as the
result of a self-acting mechanism. That mechanism is one
that is set in motion by a single function of the trigger
and is accomplished without manual reloading.
That interpretation clearly forecloses the argument that
a weapon is not a machinegun merely because it stopped
firing due to a malfunction; indeed, the reason a weapon
ceased firing is not a matter with which § 5845(b) is
concerned. Under that interpretation, however, a defendant
can still argue that the reason a gun fired more than
one round (with a single pull of the trigger without
manual reloading) was due to a malfunction—i.e., the
additional rounds fired resulted from a mishap rather
than from a regular self-acting mechanism.
In light of the foregoing interpretation, we conclude
that Olofson’s proffered instruction was not an accurate
statement of the law and that the district court properly
rejected it. Moreover, the district court correctly used
§ 5845(b) to instruct the jury. As used in the statute,
“automatically” comports with its ordinary modern
meaning, see note 4, that is readily accessible to laypersons
and is in no sense confusing; therefore, the district court
was not required to define that term for the jury. United
States v. Castillo, 406 F.3d 806, 821 (7th Cir. 2005); Miller
v. Neathery, 52 F.3d 634, 638 (7th Cir. 1995).
B. Sufficiency of the Evidence
Olofson contends that the evidence presented at trial
was insufficient to sustain his conviction. When a defendant
challenges the sufficiency of the evidence, we
view the evidence in the light most favorable to the
government and will reverse the conviction only if no
rational jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Castaldi, 547
F.3d 699, 705 (7th Cir. 2008). In order to convict a person
of violating 18 U.S.C. § 922(o)(1), the government must
prove that 1) the defendant possessed or transferred a
machinegun 2) with knowledge that the weapon had
the characteristics that bring it within the statutory definition
of a machinegun. United States v. McGiffen, 267
F.3d 581, 590 (7th Cir. 2001).
Regarding the first element, Kiernicki testified that
Olofson loaned him the AR-15 on four occasions, the last
of which was July 13, 2006. An ATF agent also testified
that Olofson admitted loaning the gun to Kiernicki. In
addition, Kiernicki stated that the gun fired three or
four rounds (on several occasions) with one pull of the
trigger. The government’s expert who test-fired the AR
The jury heard the testimony of the 6 defendant’s firearms
expert about the AR-15’s supposed malfunctioning and obviously
rejected it; on a sufficiency-of-the-evidence challenge,
we will not second-guess the jury’s credibility determinations.
United States v. Brandt, 546 F.3d 912, 917 (7th Cir. 2008).
15 stated that he exhausted a twenty-round magazine
with one continuous depression of the trigger and
emptied two additional twenty-round magazines in fiveor
ten-round bursts by intermittently depressing, holding,
and releasing the trigger. He also declared that the
weapon was intended to fire in such fashions and that a
“hammer-follow” malfunction was not the cause. That
evidence was adequate to permit a reasonable jury to
find beyond a reasonable doubt that Olofson transferred
a “machinegun” as defined by § 5845(b). Regarding the
evidence on the knowledge element, Kiernicki said that
Olofson told him “the three-round burst wouldn’t work
and that it would jam up.” Kiernicki understood that
statement to mean that “[t]hree rounds come out of it
when you would pull the trigger” once. That testimony
was sufficient for a reasonable jury to find beyond a
reasonable doubt that the defendant knew that the AR-15,
with a single pull of the trigger and without manual
reloading, could shoot more than one round as the result
of a self-acting mechanism. For these reasons, the defendant’s
challenge to the sufficiency of the evidence fails.6
C. Unconstitutional Vagueness
Olofson argues that 18 U.S.C. §§ 922(o) and 924(a)(2) are
unconstitutionally vague. We review the constitutionality
7 Olofson does not present any cogent argument that §§ 922(o)
and 924(a)(2) lack standards to prevent arbitrary or discriminatory
enforcement.
of a statute de novo. United States v. Warner, 498 F.3d 666,
697 (7th Cir. 2007). A statute is unconstitutionally vague
if it either “1) does not provide a person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, or 2) fails to provide explicit standards to
prevent arbitrary and discriminatory enforcement by
those enforcing the statute.” United States v. Lim, 444
F.3d 910, 915 (7th Cir. 2006). A vagueness challenge such
as this one that does not implicate First Amendment
freedoms is analyzed as applied to the specific facts of
the case. Id.
To the extent Olofson contends that the statutes are
fatally vague due to the way “automatically” is used in the
incorporated definition of “machinegun” from § 5845(b),
we disagree. We have already noted that the common
meaning of “automatically” is readily known by laypersons
and thus a specific instruction defining the term
for the jury was unnecessary. Similarly, a person of ordinary
intelligence would have understood the common
meaning of the term—“as the result of a self-acting mechanism”—
and thus would have had fair warning of the
relevant features of a weapon that § 5845(b) covers and that
§§ 922(o) and 924(a)(2) regulate. Therefore, we reject
Olofson’s argument that §§ 922(o) and 924(a)(2) are unconstitutionally
vague.
D. Exclusion of Olofson’s Firearms Expert from the Courtroom
The defendant also argues that the district court improperly
granted the government’s request to exclude his
firearms expert (Len Savage) from the courtroom during
the testimony of the government’s firearms expert. Olofson
contends that the presence of his expert during the testimony
of the government’s expert was essential to the
presentation of his case.
Under Federal Rule of Evidence 615, “[a]t the request of
a party the court shall order witnesses excluded so that
they cannot hear the testimony of other witnesses, and
it may make the order of its own motion.” That rule
does not authorize the exclusion of four categories of
persons, including “a person whose presence is shown
by a party to be essential to the presentation of the
party’s cause.” FED. R. EVID. 615(3). As the party asserting
a Rule 615(3) exception, Olofson bore the burden for
showing that the exception applied. Opus 3, Ltd. v. Heritage
Park, Inc., 91 F.3d 625, 628 (4th Cir. 1996); United States
v. Jackson, 60 F.3d 128, 135 (2d Cir. 1995). We review for
an abuse of discretion a district court’s decision about
the essentiality of a witness’s presence under Rule 615(3).
Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 916
(9th Cir. 2005); Opus 3, 91 F.3d at 629; Jackson, 60 F.3d
at 135-36.
At trial, Olofson presented two reasons for opposing the
government’s request to exclude Savage from the courtroom.
First, he argued that because Federal Rule of Evidence
703 permits an expert to base his opinion upon facts
or data made known to him at trial, Savage “should be
allowed to be present to hear” the government expert’s
testimony. However, merely because Rule 703 contemplates
that an expert may render an opinion based on
facts or data made known at trial does not necessarily
mean that an expert witness is exempt from a Rule 615
sequestration order. The text of Rule 615 plainly does not
provide for such a per se exception; rather, Rule 615(3)
confers discretion upon district courts to determine
whether a given witness (of whatever stripe) is essential.
We agree with the courts of appeals that have addressed
the issue that Rule 703 is not an automatic exemption for
expert witnesses from Rule 615 sequestration. Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1374 (5th Cir.
1981); Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 630
(6th Cir. 1978); see Opus 3, 91 F.3d at 629. Therefore, the
mere mention of Rule 703 by Olofson was insufficient
to show that a Rule 615(3) exception was warranted.
Second, Olofson stated that he “would like to have
Mr. Savage present to hear” the government expert’s
testimony on malfunctions so that he could “rebut or add
information” if such testimony was incomplete or incorrect.
While no precise incantation is required, we doubt
whether those statements advanced the argument that
Savage’s presence was essential under Rule 615(3). Olofson
did not tell the district court (as he tells us on appeal) that
Savage’s presence was of critical import to his highlytechnical
defense that the AR-15 malfunctioned. Even
assuming that he did make the argument, Olofson did not
carry his burden of demonstrating essentiality. The defendant
stated that Savage should be allowed to hear the
government expert’s testimony so that Savage could “rebut
or add information” to any inaccurate testimony about
malfunctions, but Olofson did not tell the district court
why Savage’s presence was necessary to achieve that end.
Indeed, much of the data and malfunction information
relied upon by the government’s expert was already
known to Savage due to the pre-trial disclosure of the
government expert’s reports, and Savage had the opportunity
to respond to such materials during the defendant’s
case. Regarding any information which was not
included in the reports but may have come into
evidence during the testimony of the government’s
expert, Olofson had ample opportunity on direct examination
for Savage to rebut, add to, or opine on the implications
of such information by asking him to assume its
existence.
Although it might have been helpful or desirable for
Savage to hear the government expert’s testimony,
Olofson did not show that Savage’s presence was
essential to the presentation of his case. Therefore, the
district court did not abuse its discretion in denying
Savage a sequestration exemption under Rule 615(3).
E. Denial of Olofson’s Discovery Requests
Prior to trial and pursuant to Brady, Olofson made a
motion to compel the discovery of evidence he had requested
but that the government had not produced. The
defendant sought: 1) documentation of the procedures
used by the ATF in testing the AR-15; 2) correspondence
between the ATF and the manufacturer of the defendant’s
AR-15 concerning the use of M-16 parts in early AR-15
rifles; 3) information about changes in the ATF’s registry
of AR-15 rifles with M-16 components; and 4) documents
pertaining to the ATF’s refusal to register AR-15 rifles
with M-16 parts. The district court denied the defendant’s
motion on the first day of trial after concluding that
the information sought was not exculpatory. On appeal,
Olofson claims that the district court committed
prejudicial error in denying his Brady motion and that he
therefore is entitled to a new trial. We review a district
court’s decision that evidence need not be produced under
Brady for an abuse of discretion. United States v. Dabney,
498 F.3d 455, 459 (7th Cir. 2007).
Under Brady, the government is constrained to disclose
evidence that is favorable to a defendant and material to
either his guilt or punishment. United States v. Fallon, 348
F.3d 248, 251 (7th Cir. 2003). Favorable evidence
includes both impeachment and exculpatory evidence.
United States v. Baker, 453 F.3d 419, 422 (7th Cir. 2006). Even
when the government has not disclosed such evidence,
“strictly speaking, there is never a real ‘Brady violation’
unless the nondisclosure was so serious that there is a
reasonable probability that the suppressed evidence
would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999). “We have described this
inquiry as ‘materiality,’ and stated that the demonstration
of materiality is the key to obtaining a new trial
where a defendant alleges a Brady violation.” Baker, 453
F.3d at 422. Thus there are three parts to a Brady violation:
1) the disputed evidence must be favorable to the
defendant, either because it is exculpatory or im18
peaching; 2) that evidence must have been suppressed by
the government, either willfully or inadvertently; and 3)
prejudice must have occurred. Strickler, 527 U.S. at 281-82.
Regarding the first non-disclosed item—the ATF’s
internal procedures for test-firing AR-15 rifles—Olofson
says he wanted that information because “[f]ailure to
follow those procedures by changing the type of ammunition
in the second test could demonstrate that the
tests had been manipulated to arrive at a reversal of the
results of the first test.” We do not see how that information
could have exculpated Olofson; section 5845(b) does
not require compliance with ATF test-fire procedures in
order for a weapon to qualify as a machinegun, nor
must the weapon fire any particular grade of ammunition
or in the prohibited fashion during the first test-fire.
Assuming that such evidence might have had some
impeachment value, there was no Brady violation because
the government’s expert was otherwise sufficiently impeached.
United States v. Ervin, 540 F.3d 623, 632 (7th Cir.
2008) (“Brady does not extend to ‘evidence that impeaches
an already thoroughly impeached witness.’ ” (quoting
United States v. Kozinski, 16 F.3d 795, 819 (7th Cir. 1994))).
Specifically, Olofson questioned the government’s expert
at length about ATF test-fire procedures and the types of
ammunition used in the tests. In addition, the government’s
expert admitted that the gun fired automatically
more than one round with a single function of the trigger
without manual reloading in the second test with civiliangrade
rounds, but jammed in the first test with militarygrade
rounds. Even if the second test was inconsistent
with ATF procedures, that fact would not undermine
8 The government’s theory of the case was that the AR-15
functioned as a machinegun, thus implicating the first sentence
of § 5845(b)’s definition of the term. As discussed earlier, the
district court instructed the jury using only that part of
§ 5845(b), and sufficient evidence of Olofson’s knowledge of
the AR-15’s firing capacity was presented to convict him. Had
the government attempted to prove that a part or combination
(continued...)
confidence in the outcome of the trial. Kyles v. Whitney, 514
U.S. 419, 434 (1995). Therefore, the district court did not
abuse its discretion in denying the defendant’s motion
to compel the production of that evidence.
With respect to his request for the ATF’s correspondence
with the manufacturer of his AR-15 concerning the use
of M-16 parts in early AR-15 rifles, the defendant contends
that evidence was exculpatory because it was
relevant to his knowledge of whether or not his AR-15
was a machinegun. The district court denied Olofson’s
request on the first day of trial. At the sentencing hearing,
the court revisited the issue; the court inspected a document
in camera, stated that it was not exculpatory, and
placed it under seal. We subsequently ordered that document
to be unsealed. That evidence is a 1983 letter from
the ATF to the manufacturer of the AR-15 in which the
ATF advised the company that the installation of certain
M-16 parts in AR-15 receivers may permit the weapon
to fire automatically even though an automatic sear is not
present. We agree with the district court that the document
is not exculpatory: it has no bearing on Olofson’s
knowledge of whether his AR-15 was a machinegun.8 The
8 (...continued)
of parts in the AR-15 made it a machinegun under the second
sentence of § 5845(b), then perhaps evidence about the manufacturer’s
installation of M-16 parts in AR-15s would have
been relevant to the defendant’s knowledge of those parts in
the weapon.
letter has no impeachment value either. Therefore, the
district court did not abuse its discretion in refusing to
order the production of that evidence.
Lastly, Olofson argues that any documents relating to
the ATF’s change in registry or refusal to register AR-15
rifles with M-16 components were exculpatory because
they could have been used to refute the government
expert’s testimony that the M-16 parts in Olofson’s AR-15
made it a machinegun. But the government’s expert did
not testify that the AR-15 was a machinegun merely
because it had M-16 parts; rather, the expert stated that
the AR-15 fired the way it did due in part to the M-16
components. Regardless, like the district court, we do not
see how the ATF’s opinions or positions regarding the
presence of M-16 parts in AR-15 rifles are the least bit
germane to Olofson’s conviction for knowingly transferring
a machinegun. The district court did not abuse its discretion
in denying Olofson’s motion to compel the government
to produce that evidence.
III. Conclusion
In sum, the defendant’s proffered jury instruction was
not a correct statement of the law, and the district court
properly rejected it. Furthermore, the evidence presented
at trial was sufficient to sustain Olofson’s conviction, and
18 U.S.C. §§ 922(o) and 924(a)(2) are not unconstitutionally
vague as applied to the facts of this case. In addition, the
district court did not abuse its discretion in either excluding
the defendant’s firearms expert from the courtroom
during the government expert’s testimony or in
denying Olofson’s motion to compel the production of
evidence he had requested from the government. Accordingly,
we AFFIRM Olofson’s conviction.
5-1-09
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. James DiSantis
A jury convicted police officer
James DiSantis of depriving a suspect’s right to be free
from unreasonable seizure, in violation of 18 U.S.C. § 242.
On appeal, DiSantis raises several challenges to the jury
instructions given at his trial. Finding no reversible
error in the instructions, we affirm the conviction.
I. Background
On September 3, 2003, DiSantis, an officer of the Cicero,
Illinois Police Department, passed Jennifer Pine while
driving through Chicago. DiSantis knew of prior criminal
activity by Pine, as well as by her two passengers, Stephen
Roden and Robert Bertucci, and suspected that Pine was
either driving a stolen vehicle or heading to buy drugs.
Acting on this hunch, DiSantis followed Pine and pulled
her over on Central Avenue. According to Pine’s testimony,
DiSantis pulled her out of the car by the hair and
struck her multiple times in the head. DiSantis denied
pulling Pine’s hair or striking her, testifying that he only
raised his voice during the course of the traffic stop.
While this incident was transpiring, Hector Montes
passed DiSantis’s and Pine’s stopped cars and saw
DiSantis striking Pine. Hector continued south on Central
Avenue to his home, where he picked up his brother,
Richard Montes. The Montes brothers then drove back
north on Central Avenue on their way to view a construction
project at Millennium Park, which Richard
planned to record with his video camera. When they
passed the point of the traffic stop, Hector and Richard
saw that DiSantis and Pine were still at the scene, but
now joined by a second police car driven by Joseph
Melone, another Cicero police officer who worked
under DiSantis.
The Montes brothers pulled into a parking lot across
from the traffic stop, and Richard attempted to record the
incident with his video camera. After a few minutes,
Hector and Richard decided to leave the scene and continued on Central Avenue. But by that time, DiSantis and
Melone had spotted Hector’s SUV, and both officers
testified that they thought that the video camera that
Richard had pointed out of the passenger window was
actually a gun. The officers accordingly pursued and
pulled Hector over at a nearby hospital parking lot.
DiSantis approached the passenger side of Hector’s SUV.
According to the Montes brothers, DiSantis immediately
went up to the passenger window and wrestled the
video camera away from Richard. The Montes brothers
further testified that DiSantis began screaming at them
and demanding the camera’s “memory stick.” After
Hector told DiSantis that he did know anything about the
memory stick, DiSantis struck Hector with the camera
across the face and again on the head. DiSantis then
threw the camera on the ground and stepped on it.
DiSantis also conducted a pat-down search of both
men and squeezed their genitals.
After finding a bullet magazine in Hector’s SUV, DiSantis
arrested Hector for unauthorized possession of ammunition
and took him to the Cicero police station. Hector
was released later that evening, after which he went to
the hospital. DiSantis filed a police report on the
incident and submitted Richard’s video camera as evidence.
Based on these events, the government charged DiSantis
with willfully depriving Pine and Hector of their constitutional
right to be free from unreasonable seizure, in
1 18 U.S.C. § 242 provides, in pertinent part:
Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in
any State, Territory, Commonwealth, Possession, or
District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or
laws of the United States . . . shall be fined under this
title or imprisoned not more than one year, or both; and
if bodily injury results from the acts committed in
violation of this section . . . shall be fined under this
title or imprisoned not more than ten years, or both . . . .
violation of 18 U.S.C. § 242.1 The case proceeded to a sixday
jury trial at which several witnesses, including
DiSantis, testified about the Pine and Montes traffic stops.
The government capably impeached DiSantis’s testimony
using the police report that he filed on the Montes incident.
For example, after DiSantis denied grabbing Richard’s
video camera, the government read a portion of DiSantis’s
report stating that “Hector Montes, was clutching the . . .
video camera” and that “DiSantis removed the camera
from the suspect by force.” The government also noted
that DiSantis’s report catalogued the camera as “damaged,”
suggesting that DiSantis was lying when he
testified that he had not deliberately stepped on the
camera.
Following the presentation of evidence, the district court
held a jury instructions conference and reviewed the
parties’ proposed instructions. Citing the inconsistencies
between DiSantis’s testimony and his police report, the
government requested an instruction that the jury could
consider DiSantis’s prior inconsistent statements for their
truth, not merely for assessing DiSantis’s credibility. The
court agreed and gave, over DiSantis’s objection, the
government’s proposed instruction on the substantive
use of DiSantis’s prior inconsistent statements. The
court also gave the government’s proposed instructions
defining the “bodily injury” that triggers an enhanced
maximum sentence under 18 U.S.C. § 242, as well as the
“reasonable force” that an officer may justifiably use
against a suspect. Finally, the court rejected DiSantis’s
request for a “missing witness” instruction regarding
Robert Bertucci and Steven Roden, potential government
witnesses who, according to DiSantis, were controlled
by the government and unavailable to the defense.
The jury found DiSantis not guilty of violating Pine’s
constitutional rights but guilty of violating Hector’s
rights.
2 The district court imposed a sentence of 66
months’ imprisonment. On appeal, DiSantis challenges
the jury instructions on the use of his prior inconsistent
statements, the “bodily injury” element of § 242, and the
“reasonable force” that DiSantis could justifiably use
against Pine and Hector. DiSantis also challenges the
district court’s refusal to give his proposed “missing
witness” instruction.
II. Discussion
We review de novo a district court’s decision to give
or refuse a jury instruction “when the underlying assignment
of error implicates a question of law,” but “general
attacks on the jury instructions are reviewed for an abuse
of discretion.” United States v. Macedo, 406 F.3d 778, 787
(7th Cir. 2005) (citation omitted). The district court “is
afforded substantial discretion with respect to the precise
wording of instructions so long as the final result, read
as a whole, completely and correctly states the law.”
United States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008)
(quoting United States v. Lee, 439 F.3d 381, 387 (7th Cir.
2006)), cert. denied, 129 S. Ct. 1386 (2009). “Reversal is
proper only if the instructions as a whole are insufficient
to inform the jury correctly of the applicable law and the
jury is thereby misled.” United States v. Madoch, 149
F.3d 596, 599 (7th Cir. 1998).
A. Prior Inconsistent Statements
Based on the inconsistences between DiSantis’s testimony
and his police report, the district court instructed
the jury that they could consider DiSantis’s prior inconsistent
statements as substantive evidence. The given
instruction provided:
A statement made by the defendant before trial
that is inconsistent with the defendant’s testimony
here in court may be used by you as evidence of
the truth of the matters contained in it, and also
in deciding the truthfulness and accuracy of the
defendant’s testimony at trial.
This instruction is substantively identical to Instruction
3.10 from the Federal Criminal Jury Instructions of the
Seventh Circuit. Fed. Crim. Jury Instr. 7th Cir. 3.10 (1999).
(Although not pre-approved by the Seventh Circuit
Judicial Council for use in any particular case, these
published Circuit instructions, often referred to as “pattern”
instructions, reflect the work of judges and lawyers
with significant experience in criminal trials, id. at v, ix;
but of course, “pattern” instructions don’t fit every case,
see United States v. Hill, 252 F.3d 919, 922 (7th Cir. 2001).)
DiSantis argues that, by authorizing the jury to consider
his prior inconsistent statements for their truth, the
district court unduly emphasized his inconsistent statements
over those of other witnesses. He observes that the
court cautioned that the jury could not consider other
witnesses’ prior inconsistent statements for their truth
unless the witnesses made the statements “under oath.”
According to DiSantis, highlighting his prior, unsworn,
inconsistent statements as substantive evidence, while
limiting non-party witnesses’ prior inconsistent statements
to impeachment-only evidence, drew a prejudicial
distinction between him and other witnesses.
DiSantis is correct that the district court’s instructions
set different standards for the substantive use of his and
other witnesses’ prior inconsistent statements. DiSantis is
incorrect to suggest that this party-based distinction is in
any way legally erroneous. The Rules of Evidence plainly
distinguish between the prior inconsistent statements of
non-party witnesses and of party-opponents like DiSantis.
The former are admissible as non-hearsay, substantive
evidence only if “subject to cross-examination” and “given
under oath.” Fed. R. Evid. 801(d)(1)(A); United States v.
Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988) (“If a prior
inconsistent statement meets the [oath and cross-examination]
requirements of Rule 801(d)(1)(A) it may be admitted
as substantive evidence . . . . A prior inconsistent
statement that does not meet one of the criteria of Rule
801(d)(1)(A), however, may be used only for the purpose
of impeaching the witness.”). The latter are admissible as
substantive evidence even if not given under oath. Fed. R.
Evid. 801(d)(2)(A); United States v. Spiller, 261 F.3d 683,
690 (7th Cir. 2001) (“A party’s own statements offered
against him are considered admissions by a party-opponent,
and, as such, are not hearsay and are admissible
under Fed. R. Evid. 801(d)(2)(A).”). The district court’s
instruction on the substantive use of DiSantis’s prior
inconsistent statements was unquestionably a correct
statement of the law.
DiSantis also argues that his police report did not
qualify as an admission by a party-opponent, such that
the district court had no basis for instructing the jury on
the substantive use of his prior inconsistent statements.
However, under Rule 801(d)(2)(A), “written statements
may be admitted as non-hearsay against the party who
made the statement.” Thanongsinh v. Bd. of Educ., 462 F.3d
762, 779 (7th Cir. 2006); see also Spiller, 261 F.3d at 690
(characterizing a defendant’s handwritten ledgers indicating
the quantities of crack cocaine that he sold as
admissions by a party-opponent); United States v. Harvey,
117 F.3d 1044, 1049-50 (7th Cir. 1997) (concluding that
a defendant’s handwritten letters and diaries documenting his marijuana production were admissions by a
party-opponent). Applying that principle in a similar § 242
case arising out of a police officer’s use of excessive
force, the First Circuit concluded that the officer’s arrest
report fell within the hearsay exemption of Rule
801(d)(2)(A). United States v. Rios Ruiz, 579 F.2d 670, 675-77
(1st Cir. 1978). Likewise, DiSantis’s prior inconsistent
statements in his police report qualified as party admissions,
and the district court committed no error in instructing
the jury that they could consider those statements
for their truth.
B. Bodily Injury
DiSantis next objects to the jury instruction defining the
“bodily injury” element of § 242, which, if proved, triggers
an enhanced ten-year maximum sentence under the
statute. The district court gave the government’s proposed
instruction on bodily injury, which provided:
If you find that defendant DiSantis is guilty of
any count, you will have to determine whether the
government proved beyond a reasonable doubt
that defendant’s acts resulted in bodily injury with
respect to that count. The government need not
prove that the defendant intended to cause bodily
injury to the victim; the government need only
prove that bodily injury resulted from the defendant’s
unlawful conduct. “Bodily injury” includes
any injury that is painful and obvious, even if the
victim does not seek medical attention. Bodily
injury includes a cut, abrasion, bruise, physical
pain, or any other injury to the body no matter
how temporary.
DiSantis argues that this instruction is too broad, reaching
even trivial forms of bodily injury not intended to fall
within the reach of § 242. Before addressing this argument,
we must resolve the government’s claim that
DiSantis has waived, or at least forfeited, his objection
to the bodily injury instruction.
A defendant waives an objection to jury instructions
if “the record illustrates that the defendant approved of
the instructions at issue.” United States v. Pree, 408 F.3d
855, 872 (7th Cir. 2005) (quoting United States v. Griffin,
84 F.3d 912, 924 (7th Cir. 1996)). The “touchstone” of the
waiver inquiry is “whether and to what extent the defendant
ha[s] actually approved of the jury instructions
assigned as error on appeal.” Griffin, 84 F.3d at 924. Waiver
“extinguishes any error” and “precludes appellate review.”
Pree, 408 F.3d at 872.
In contrast to waiver, forfeiture occurs where a defendant
fails to object to a proposed jury instruction by
“stating distinctly the matter to which the [defendant]
objects and the grounds of the objection.” United States v.
Wheeler, 540 F.3d 683, 688 (7th Cir. 2008) (quotation omitted);
see also Fed. R. Crim. P. 30(d) (providing that objections
to jury instructions “must inform the court of the
specific objection and the grounds for the objection”).
Although forfeiture does not preclude appellate review
as does waiver, we review forfeited objections only for
plain error. Griffin, 84 F.3d at 924-25. An error is plain if
it was “(1) clear and uncontroverted at the time of appeal
and (2) affected substantial rights, which means the error
affected the outcome of the district court proceedings.”
Wheeler, 540 F.3d at 689 (quotation omitted). Further, plainerror
review is “particularly light-handed in the context
of jury instructions,” since it is unusual that any error in
an instruction to which no party objected would be so
great as to affect substantial rights. Griffin, 84 F.3d at 925.
During the jury instructions conference, DiSantis’s
counsel objected to the portion of the instruction providing
that the government only had to prove that bodily injury
“resulted from” DiSantis’s conduct. Defense counsel
argued that the instruction should require that DiSantis
actually “caused” bodily injury. The court rejected the
proposed change as inconsequential, since the government’s
theory relied on proving causation:
THE COURT: . . . they [the government]
are not going to
argue—they are going to
argue that there was a
cause and effect relationship.
DEFENSE COUNSEL: Okay.
THE COURT: I think this is a correct
instruction, but I do not
think your fear is going
to—there is any risk of
your fear materializing,
seriously. Okay?
DEFENSE COUNSEL: Thank, you Judge.
We disagree with the government’s characterization
of counsel’s thanking the judge as a waiver of the objection
to the bodily injury instruction. We read that
response as a display of civility after having one’s argument
heard and rejected, not as the type of actual approval
of a jury instruction that would constitute waiver.
Cf. United States v. Anifowosche, 307 F.3d 643, 650 (7th Cir.
2002) (defense counsel’s affirmative response to the
court’s statement for the record “that the instructions
were given without objection by either side” was a
waiver); Griffin, 84 F.3d at 923-24 (defense counsel’s
agreement that it preferred the instruction offered by the
court was a waiver). Moreover, at the end of the instructions
conference, defense counsel expressly preserved
his “continuing objection to the jury instruction on
bodily injury . . . .” The court responded that “the instruction
objections have all been preserved.”
Although DiSantis did not waive his objection to the
bodily injury instruction, we agree with the government
that he forfeited it. As noted above, DiSantis’s objection
at trial focused on the lack of a causation requirement,
while his objection on appeal focuses on the breadth of
the definition of “bodily injury.” Since DiSantis’s objections
at trial and on appeal are “substantively different,”
we will limit our review of the instruction for plain error.
Wheeler, 540 F.3d at 689.
In determining whether the given instruction “correctly
states the law,” Gibson, 530 F.3d at 609, we cannot rely on
§ 242 itself, which does not define bodily injury. However,
the final sentence of the instruction tracks the language
of several criminal statutes that define bodily injury as
“(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain; (C) illness; (D) impairment of a function
of a bodily member, organ, or mental faculty; or (E) any
other injury to the body, no matter how temporary.” 18
U.S.C. § 831(f)(5) (prohibited transactions involving nuclear
materials); id. § 1365(h)(4) (tampering with consumer
products); id. § 1515(a)(5) (definition applicable to witness
tampering, § 1512, and witness retaliation, § 1513); id.
§ 1864(d)(2) (hazardous or injurious devices on federal
lands). The remaining portion of the instruction is
similar to the definition of bodily injury provided by the
Sentencing Guidelines. See U.S.S.G. § 1B1.1 cmt. n.1(B)
(defining bodily injury as “significant injury; e.g., an
injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought”).
Relying on these provisions, two other circuits have
appropriately approved jury instructions on the bodily
injury element of § 242 similar to the instruction given
here. See United States v. Bailey, 405 F.3d 102, 111 (1st
Cir. 2005); United States v. Meyers, 972 F.2d 1566, 1572-73
(11th Cir. 1992).
Based on this authority, we cannot say that the district
court’s instruction on bodily injury provided the jury
with an incorrect statement of the law, especially since
DiSantis has failed both in the district court and on appeal
to offer an alternative definition of bodily injury. See
Myers, 972 F.2d at 1572 (observing that the defendant
had challenged the breadth of the bodily injury instruction
but had not offered the district court an alternative
definition). DiSantis has failed to show any “clear and
uncontroverted” error in the instruction that would justify
reversal on plain-error review. Wheeler, 540 F.3d at 689.
Moreover, given the trial testimony on the extent of
bodily injury suffered by Hector Montes, DiSantis cannot
show that any error in the instruction “affected the outcome
of the district court proceedings.” Id. Hector testified
that DiSantis, infuriated by Hector’s inability to tell
him about the video camera’s memory stick, struck
Hector with the camera once on the face and again on
the head. Hector suffered headaches and a cut on his face
to the right of his nose. Richard Montes’s testimony
confirmed that DiSantis hit Hector in the face, drawing
blood, and the government introduced a police photo of
Hector following his arrest that showed a red mark to
the right of his nose. Hector also testified that DiSantis
grabbed his testicles during a pat-down search, causing
pain, and that Hector went to the hospital following his
release from the Cicero police station to seek treatment
for his injuries.
Based on this evidence, the injuries suffered by Hector
would satisfy a definition of bodily injury far more restrictive
than that given by the district court. So even if
DiSantis were correct that the court’s definition was
too broad, that error would be harmless.
C. Reasonable Force
DiSantis’s third argument challenges the jury instruction
defining the “reasonable force” that DiSantis could use in
detaining Hector Montes without violating his constitutional
rights. The given instruction provided:
In this case, if you find that the defendant used
force against . . . Hector Montes, you must then
determine whether the force he used against that
individual was reasonable or unreasonable. In
making that determination, you should consider
all the circumstances from the point of view of an
ordinary and reasonable officer on the scene,
including the seriousness of the offense that the
individual may or may not have committed,
whether that individual posed an immediate
threat to the safety of defendant DiSantis, and
whether that individual was actively resisting
arrest or attempting to evade arrest by flight.
DiSantis argues that this instruction fails to adequately
define what force is reasonable “from the point of view of
an ordinary and reasonable officer on the scene.” Because
no witness was qualified as an expert on reasonable
police force, DiSantis continues, the instruction invited
the jury to attach undue weight to the testimony of
Officer Joseph Melone, a government witness who was
the only other “officer on the scene.”
Again, our first task in addressing this argument is to
ascertain the applicable standard of review. During the
jury instructions conference, defense counsel expressed
concern with the phrase instructing the jury to “consider
all of the circumstances and point of view of an ordinary
and reasonable officer on the scene.” The court responded
that the language was in many ways favorable to DiSantis,
telling jurors that “objectivity is the standard” and that
they may not judge reasonable force from their own
“particularly sensitive” viewpoints. Counsel seemed to
accept this response, and the parties moved on to discuss
other instructions. When the court later returned to the
reasonable force instruction and asked whether the
defense “was comfortable with the rest of it,” counsel
balked: “I can’t say ‘comforted,’ but I do not even know
how to frame my argument. Something feels wrong
about it, but I do not think that is going to help my position.”
This expression of general discomfort falls short of the
specific objection that we require in order to preserve
a challenge to a proposed jury instruction. See Wheeler,
540 F.3d at 688. We will accordingly review the instruction
only for plain error. And the district court did not
plainly err in giving an instruction that so closely tracks
the Supreme Court’s description of the type of reasonable
force that an arresting officer may use without violating
a suspect’s Fourth Amendment rights. In Graham
v. Connor, 490 U.S. 386, 388 (1989), the Court held that
claims of excessive police force against an arrestee are
subject to a test of “objective reasonableness.” That test
“requires careful attention to the facts and circumstances
of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396. The “ ‘reasonableness’ of a
particular force must be judged from the perspective of a
reasonable officer on the scene.” Id. Relying on Graham,
we have upheld a jury instruction that put forth this
objective, “reasonable law enforcement officer on the
scene” test in another § 242 case charging a police officer
with the use of excessive force. United States v. Brown, 250
F.3d 580, 586 (7th Cir. 2001). DiSantis’s challenge to the
district court’s reasonable force instruction is therefore
without merit, especially since, as with the bodily
injury instruction, DiSantis fails to offer an alternative
definition of reasonable force.
We also disagree with DiSantis that the instruction
would have been adequate only if accompanied by expert
testimony on reasonable police force. Although in some
instances expert testimony may assist the jury in determining
whether an officer used excessive force, see Kladis
v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987), expert testimony
is by no means required in all excessive force
cases. Since the question of excessive force is so factintensive,
the jury will often be “in as good a position as
the experts” to decide whether the officer’s conduct was
“objectively reasonable.” Thompson v. City of Chicago, 472
F.3d 444, 458 (7th Cir. 2006). The jury in this case, having
heard extensive testimony on the facts and circumstances
surrounding the traffic stops, was well-positioned to
decide whether DiSantis used reasonable force.
D. Missing Witness Instruction
DiSantis’s final argument challenges the district
court’s refusal to give a “missing witness” instruction—
that is, an instruction that the prosecution’s failure
to call a witness may give rise to an inference that the
witness’s testimony would have been unfavorable to the
government. United States v. Gant, 396 F.3d 906, 910 (7th
Cir. 2005) (citing Fed. Crim. Jury Instr. 7th Cir. 3.24 cmt.
(1999)). DiSantis argues that the court should have tendered
a missing witness instruction as to Robert Bertucci
and Steven Roden, passengers in Pine’s car during the
traffic stop and potential government witnesses.
A district court has “broad discretion” in refusing to
give missing witness instructions, which are generally
disfavored. See United States v. Brock, 417 F.3d 692, 699 (7th
Cir. 2005). “To establish entitlement to a missing witness
instruction, a defendant must prove two things: first, that
the absent witness was peculiarly within the government’s
power to produce; and second, that the testimony
would have elucidated issues in the case and would not
merely have been cumulative.” Gant, 396 F.3d at 910
(quoting United States v. Valles, 41 F.3d 355, 360 (7th
Cir. 1994)).
It is clear from the record that Bertucci and Roden were
not so peculiarly within the government’s control as to
justify a missing witness instruction. At the instructions
conference, the district court noted that the defense
could have subpoenaed both Bertucci and Roden, yet
defense counsel offered no explanation for failing to do
so. The absence of any explanation, either in the
district court or on appeal, why the defense did not
subpoena these witnesses demonstrates that DiSantis
was not entitled to a missing witness instruction. See id.
(observing that the defendant had neither attempted to
subpoena the witness nor “offered a satisfactory explanation
for failing to do so”); United States v. Romo, 914
F.2d 889, 894 (7th Cir. 1990) (noting that the defendant
failed to subpoena, interview, or request the production
of the witness); cf. United States v. Cochran, 955 F.2d 1116,
1122 (7th Cir. 1992) (affirming the district court’s refusal
to allow comment on the absence of government witnesses
during closing arguments where the defendant
“could have issued subpoenas to both ‘missing witnesses’
”).
Although the absence of peculiar government control is
alone sufficient to deny a missing witness instruction,
DiSantis also fails to explain how Bertucci’s and Roden’s
testimony would have “elucidated issues.” Gant, 396
F.3d at 910. While these men were passengers in Pine’s
car and so might have offered some material testimony
on the charged violation of her rights (of which DiSantis
was acquitted), they presumably did not even see the
assault on Hector Montes, which was the basis of
DiSantis’s conviction. Both requirements for a missing
witness instruction are lacking.
III. Conclusion
For the foregoing reasons, we AFFIRM DiSantis’s conviction.
5-4-09
Chicago Criminal Lawyer - Robert J Callahan
James DiSantis of depriving a suspect’s right to be free
from unreasonable seizure, in violation of 18 U.S.C. § 242.
On appeal, DiSantis raises several challenges to the jury
instructions given at his trial. Finding no reversible
error in the instructions, we affirm the conviction.
I. Background
On September 3, 2003, DiSantis, an officer of the Cicero,
Illinois Police Department, passed Jennifer Pine while
driving through Chicago. DiSantis knew of prior criminal
activity by Pine, as well as by her two passengers, Stephen
Roden and Robert Bertucci, and suspected that Pine was
either driving a stolen vehicle or heading to buy drugs.
Acting on this hunch, DiSantis followed Pine and pulled
her over on Central Avenue. According to Pine’s testimony,
DiSantis pulled her out of the car by the hair and
struck her multiple times in the head. DiSantis denied
pulling Pine’s hair or striking her, testifying that he only
raised his voice during the course of the traffic stop.
While this incident was transpiring, Hector Montes
passed DiSantis’s and Pine’s stopped cars and saw
DiSantis striking Pine. Hector continued south on Central
Avenue to his home, where he picked up his brother,
Richard Montes. The Montes brothers then drove back
north on Central Avenue on their way to view a construction
project at Millennium Park, which Richard
planned to record with his video camera. When they
passed the point of the traffic stop, Hector and Richard
saw that DiSantis and Pine were still at the scene, but
now joined by a second police car driven by Joseph
Melone, another Cicero police officer who worked
under DiSantis.
The Montes brothers pulled into a parking lot across
from the traffic stop, and Richard attempted to record the
incident with his video camera. After a few minutes,
Hector and Richard decided to leave the scene and continued on Central Avenue. But by that time, DiSantis and
Melone had spotted Hector’s SUV, and both officers
testified that they thought that the video camera that
Richard had pointed out of the passenger window was
actually a gun. The officers accordingly pursued and
pulled Hector over at a nearby hospital parking lot.
DiSantis approached the passenger side of Hector’s SUV.
According to the Montes brothers, DiSantis immediately
went up to the passenger window and wrestled the
video camera away from Richard. The Montes brothers
further testified that DiSantis began screaming at them
and demanding the camera’s “memory stick.” After
Hector told DiSantis that he did know anything about the
memory stick, DiSantis struck Hector with the camera
across the face and again on the head. DiSantis then
threw the camera on the ground and stepped on it.
DiSantis also conducted a pat-down search of both
men and squeezed their genitals.
After finding a bullet magazine in Hector’s SUV, DiSantis
arrested Hector for unauthorized possession of ammunition
and took him to the Cicero police station. Hector
was released later that evening, after which he went to
the hospital. DiSantis filed a police report on the
incident and submitted Richard’s video camera as evidence.
Based on these events, the government charged DiSantis
with willfully depriving Pine and Hector of their constitutional
right to be free from unreasonable seizure, in
1 18 U.S.C. § 242 provides, in pertinent part:
Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in
any State, Territory, Commonwealth, Possession, or
District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or
laws of the United States . . . shall be fined under this
title or imprisoned not more than one year, or both; and
if bodily injury results from the acts committed in
violation of this section . . . shall be fined under this
title or imprisoned not more than ten years, or both . . . .
violation of 18 U.S.C. § 242.1 The case proceeded to a sixday
jury trial at which several witnesses, including
DiSantis, testified about the Pine and Montes traffic stops.
The government capably impeached DiSantis’s testimony
using the police report that he filed on the Montes incident.
For example, after DiSantis denied grabbing Richard’s
video camera, the government read a portion of DiSantis’s
report stating that “Hector Montes, was clutching the . . .
video camera” and that “DiSantis removed the camera
from the suspect by force.” The government also noted
that DiSantis’s report catalogued the camera as “damaged,”
suggesting that DiSantis was lying when he
testified that he had not deliberately stepped on the
camera.
Following the presentation of evidence, the district court
held a jury instructions conference and reviewed the
parties’ proposed instructions. Citing the inconsistencies
between DiSantis’s testimony and his police report, the
government requested an instruction that the jury could
consider DiSantis’s prior inconsistent statements for their
truth, not merely for assessing DiSantis’s credibility. The
court agreed and gave, over DiSantis’s objection, the
government’s proposed instruction on the substantive
use of DiSantis’s prior inconsistent statements. The
court also gave the government’s proposed instructions
defining the “bodily injury” that triggers an enhanced
maximum sentence under 18 U.S.C. § 242, as well as the
“reasonable force” that an officer may justifiably use
against a suspect. Finally, the court rejected DiSantis’s
request for a “missing witness” instruction regarding
Robert Bertucci and Steven Roden, potential government
witnesses who, according to DiSantis, were controlled
by the government and unavailable to the defense.
The jury found DiSantis not guilty of violating Pine’s
constitutional rights but guilty of violating Hector’s
rights.
2 The district court imposed a sentence of 66
months’ imprisonment. On appeal, DiSantis challenges
the jury instructions on the use of his prior inconsistent
statements, the “bodily injury” element of § 242, and the
“reasonable force” that DiSantis could justifiably use
against Pine and Hector. DiSantis also challenges the
district court’s refusal to give his proposed “missing
witness” instruction.
II. Discussion
We review de novo a district court’s decision to give
or refuse a jury instruction “when the underlying assignment
of error implicates a question of law,” but “general
attacks on the jury instructions are reviewed for an abuse
of discretion.” United States v. Macedo, 406 F.3d 778, 787
(7th Cir. 2005) (citation omitted). The district court “is
afforded substantial discretion with respect to the precise
wording of instructions so long as the final result, read
as a whole, completely and correctly states the law.”
United States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008)
(quoting United States v. Lee, 439 F.3d 381, 387 (7th Cir.
2006)), cert. denied, 129 S. Ct. 1386 (2009). “Reversal is
proper only if the instructions as a whole are insufficient
to inform the jury correctly of the applicable law and the
jury is thereby misled.” United States v. Madoch, 149
F.3d 596, 599 (7th Cir. 1998).
A. Prior Inconsistent Statements
Based on the inconsistences between DiSantis’s testimony
and his police report, the district court instructed
the jury that they could consider DiSantis’s prior inconsistent
statements as substantive evidence. The given
instruction provided:
A statement made by the defendant before trial
that is inconsistent with the defendant’s testimony
here in court may be used by you as evidence of
the truth of the matters contained in it, and also
in deciding the truthfulness and accuracy of the
defendant’s testimony at trial.
This instruction is substantively identical to Instruction
3.10 from the Federal Criminal Jury Instructions of the
Seventh Circuit. Fed. Crim. Jury Instr. 7th Cir. 3.10 (1999).
(Although not pre-approved by the Seventh Circuit
Judicial Council for use in any particular case, these
published Circuit instructions, often referred to as “pattern”
instructions, reflect the work of judges and lawyers
with significant experience in criminal trials, id. at v, ix;
but of course, “pattern” instructions don’t fit every case,
see United States v. Hill, 252 F.3d 919, 922 (7th Cir. 2001).)
DiSantis argues that, by authorizing the jury to consider
his prior inconsistent statements for their truth, the
district court unduly emphasized his inconsistent statements
over those of other witnesses. He observes that the
court cautioned that the jury could not consider other
witnesses’ prior inconsistent statements for their truth
unless the witnesses made the statements “under oath.”
According to DiSantis, highlighting his prior, unsworn,
inconsistent statements as substantive evidence, while
limiting non-party witnesses’ prior inconsistent statements
to impeachment-only evidence, drew a prejudicial
distinction between him and other witnesses.
DiSantis is correct that the district court’s instructions
set different standards for the substantive use of his and
other witnesses’ prior inconsistent statements. DiSantis is
incorrect to suggest that this party-based distinction is in
any way legally erroneous. The Rules of Evidence plainly
distinguish between the prior inconsistent statements of
non-party witnesses and of party-opponents like DiSantis.
The former are admissible as non-hearsay, substantive
evidence only if “subject to cross-examination” and “given
under oath.” Fed. R. Evid. 801(d)(1)(A); United States v.
Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988) (“If a prior
inconsistent statement meets the [oath and cross-examination]
requirements of Rule 801(d)(1)(A) it may be admitted
as substantive evidence . . . . A prior inconsistent
statement that does not meet one of the criteria of Rule
801(d)(1)(A), however, may be used only for the purpose
of impeaching the witness.”). The latter are admissible as
substantive evidence even if not given under oath. Fed. R.
Evid. 801(d)(2)(A); United States v. Spiller, 261 F.3d 683,
690 (7th Cir. 2001) (“A party’s own statements offered
against him are considered admissions by a party-opponent,
and, as such, are not hearsay and are admissible
under Fed. R. Evid. 801(d)(2)(A).”). The district court’s
instruction on the substantive use of DiSantis’s prior
inconsistent statements was unquestionably a correct
statement of the law.
DiSantis also argues that his police report did not
qualify as an admission by a party-opponent, such that
the district court had no basis for instructing the jury on
the substantive use of his prior inconsistent statements.
However, under Rule 801(d)(2)(A), “written statements
may be admitted as non-hearsay against the party who
made the statement.” Thanongsinh v. Bd. of Educ., 462 F.3d
762, 779 (7th Cir. 2006); see also Spiller, 261 F.3d at 690
(characterizing a defendant’s handwritten ledgers indicating
the quantities of crack cocaine that he sold as
admissions by a party-opponent); United States v. Harvey,
117 F.3d 1044, 1049-50 (7th Cir. 1997) (concluding that
a defendant’s handwritten letters and diaries documenting his marijuana production were admissions by a
party-opponent). Applying that principle in a similar § 242
case arising out of a police officer’s use of excessive
force, the First Circuit concluded that the officer’s arrest
report fell within the hearsay exemption of Rule
801(d)(2)(A). United States v. Rios Ruiz, 579 F.2d 670, 675-77
(1st Cir. 1978). Likewise, DiSantis’s prior inconsistent
statements in his police report qualified as party admissions,
and the district court committed no error in instructing
the jury that they could consider those statements
for their truth.
B. Bodily Injury
DiSantis next objects to the jury instruction defining the
“bodily injury” element of § 242, which, if proved, triggers
an enhanced ten-year maximum sentence under the
statute. The district court gave the government’s proposed
instruction on bodily injury, which provided:
If you find that defendant DiSantis is guilty of
any count, you will have to determine whether the
government proved beyond a reasonable doubt
that defendant’s acts resulted in bodily injury with
respect to that count. The government need not
prove that the defendant intended to cause bodily
injury to the victim; the government need only
prove that bodily injury resulted from the defendant’s
unlawful conduct. “Bodily injury” includes
any injury that is painful and obvious, even if the
victim does not seek medical attention. Bodily
injury includes a cut, abrasion, bruise, physical
pain, or any other injury to the body no matter
how temporary.
DiSantis argues that this instruction is too broad, reaching
even trivial forms of bodily injury not intended to fall
within the reach of § 242. Before addressing this argument,
we must resolve the government’s claim that
DiSantis has waived, or at least forfeited, his objection
to the bodily injury instruction.
A defendant waives an objection to jury instructions
if “the record illustrates that the defendant approved of
the instructions at issue.” United States v. Pree, 408 F.3d
855, 872 (7th Cir. 2005) (quoting United States v. Griffin,
84 F.3d 912, 924 (7th Cir. 1996)). The “touchstone” of the
waiver inquiry is “whether and to what extent the defendant
ha[s] actually approved of the jury instructions
assigned as error on appeal.” Griffin, 84 F.3d at 924. Waiver
“extinguishes any error” and “precludes appellate review.”
Pree, 408 F.3d at 872.
In contrast to waiver, forfeiture occurs where a defendant
fails to object to a proposed jury instruction by
“stating distinctly the matter to which the [defendant]
objects and the grounds of the objection.” United States v.
Wheeler, 540 F.3d 683, 688 (7th Cir. 2008) (quotation omitted);
see also Fed. R. Crim. P. 30(d) (providing that objections
to jury instructions “must inform the court of the
specific objection and the grounds for the objection”).
Although forfeiture does not preclude appellate review
as does waiver, we review forfeited objections only for
plain error. Griffin, 84 F.3d at 924-25. An error is plain if
it was “(1) clear and uncontroverted at the time of appeal
and (2) affected substantial rights, which means the error
affected the outcome of the district court proceedings.”
Wheeler, 540 F.3d at 689 (quotation omitted). Further, plainerror
review is “particularly light-handed in the context
of jury instructions,” since it is unusual that any error in
an instruction to which no party objected would be so
great as to affect substantial rights. Griffin, 84 F.3d at 925.
During the jury instructions conference, DiSantis’s
counsel objected to the portion of the instruction providing
that the government only had to prove that bodily injury
“resulted from” DiSantis’s conduct. Defense counsel
argued that the instruction should require that DiSantis
actually “caused” bodily injury. The court rejected the
proposed change as inconsequential, since the government’s
theory relied on proving causation:
THE COURT: . . . they [the government]
are not going to
argue—they are going to
argue that there was a
cause and effect relationship.
DEFENSE COUNSEL: Okay.
THE COURT: I think this is a correct
instruction, but I do not
think your fear is going
to—there is any risk of
your fear materializing,
seriously. Okay?
DEFENSE COUNSEL: Thank, you Judge.
We disagree with the government’s characterization
of counsel’s thanking the judge as a waiver of the objection
to the bodily injury instruction. We read that
response as a display of civility after having one’s argument
heard and rejected, not as the type of actual approval
of a jury instruction that would constitute waiver.
Cf. United States v. Anifowosche, 307 F.3d 643, 650 (7th Cir.
2002) (defense counsel’s affirmative response to the
court’s statement for the record “that the instructions
were given without objection by either side” was a
waiver); Griffin, 84 F.3d at 923-24 (defense counsel’s
agreement that it preferred the instruction offered by the
court was a waiver). Moreover, at the end of the instructions
conference, defense counsel expressly preserved
his “continuing objection to the jury instruction on
bodily injury . . . .” The court responded that “the instruction
objections have all been preserved.”
Although DiSantis did not waive his objection to the
bodily injury instruction, we agree with the government
that he forfeited it. As noted above, DiSantis’s objection
at trial focused on the lack of a causation requirement,
while his objection on appeal focuses on the breadth of
the definition of “bodily injury.” Since DiSantis’s objections
at trial and on appeal are “substantively different,”
we will limit our review of the instruction for plain error.
Wheeler, 540 F.3d at 689.
In determining whether the given instruction “correctly
states the law,” Gibson, 530 F.3d at 609, we cannot rely on
§ 242 itself, which does not define bodily injury. However,
the final sentence of the instruction tracks the language
of several criminal statutes that define bodily injury as
“(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain; (C) illness; (D) impairment of a function
of a bodily member, organ, or mental faculty; or (E) any
other injury to the body, no matter how temporary.” 18
U.S.C. § 831(f)(5) (prohibited transactions involving nuclear
materials); id. § 1365(h)(4) (tampering with consumer
products); id. § 1515(a)(5) (definition applicable to witness
tampering, § 1512, and witness retaliation, § 1513); id.
§ 1864(d)(2) (hazardous or injurious devices on federal
lands). The remaining portion of the instruction is
similar to the definition of bodily injury provided by the
Sentencing Guidelines. See U.S.S.G. § 1B1.1 cmt. n.1(B)
(defining bodily injury as “significant injury; e.g., an
injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought”).
Relying on these provisions, two other circuits have
appropriately approved jury instructions on the bodily
injury element of § 242 similar to the instruction given
here. See United States v. Bailey, 405 F.3d 102, 111 (1st
Cir. 2005); United States v. Meyers, 972 F.2d 1566, 1572-73
(11th Cir. 1992).
Based on this authority, we cannot say that the district
court’s instruction on bodily injury provided the jury
with an incorrect statement of the law, especially since
DiSantis has failed both in the district court and on appeal
to offer an alternative definition of bodily injury. See
Myers, 972 F.2d at 1572 (observing that the defendant
had challenged the breadth of the bodily injury instruction
but had not offered the district court an alternative
definition). DiSantis has failed to show any “clear and
uncontroverted” error in the instruction that would justify
reversal on plain-error review. Wheeler, 540 F.3d at 689.
Moreover, given the trial testimony on the extent of
bodily injury suffered by Hector Montes, DiSantis cannot
show that any error in the instruction “affected the outcome
of the district court proceedings.” Id. Hector testified
that DiSantis, infuriated by Hector’s inability to tell
him about the video camera’s memory stick, struck
Hector with the camera once on the face and again on
the head. Hector suffered headaches and a cut on his face
to the right of his nose. Richard Montes’s testimony
confirmed that DiSantis hit Hector in the face, drawing
blood, and the government introduced a police photo of
Hector following his arrest that showed a red mark to
the right of his nose. Hector also testified that DiSantis
grabbed his testicles during a pat-down search, causing
pain, and that Hector went to the hospital following his
release from the Cicero police station to seek treatment
for his injuries.
Based on this evidence, the injuries suffered by Hector
would satisfy a definition of bodily injury far more restrictive
than that given by the district court. So even if
DiSantis were correct that the court’s definition was
too broad, that error would be harmless.
C. Reasonable Force
DiSantis’s third argument challenges the jury instruction
defining the “reasonable force” that DiSantis could use in
detaining Hector Montes without violating his constitutional
rights. The given instruction provided:
In this case, if you find that the defendant used
force against . . . Hector Montes, you must then
determine whether the force he used against that
individual was reasonable or unreasonable. In
making that determination, you should consider
all the circumstances from the point of view of an
ordinary and reasonable officer on the scene,
including the seriousness of the offense that the
individual may or may not have committed,
whether that individual posed an immediate
threat to the safety of defendant DiSantis, and
whether that individual was actively resisting
arrest or attempting to evade arrest by flight.
DiSantis argues that this instruction fails to adequately
define what force is reasonable “from the point of view of
an ordinary and reasonable officer on the scene.” Because
no witness was qualified as an expert on reasonable
police force, DiSantis continues, the instruction invited
the jury to attach undue weight to the testimony of
Officer Joseph Melone, a government witness who was
the only other “officer on the scene.”
Again, our first task in addressing this argument is to
ascertain the applicable standard of review. During the
jury instructions conference, defense counsel expressed
concern with the phrase instructing the jury to “consider
all of the circumstances and point of view of an ordinary
and reasonable officer on the scene.” The court responded
that the language was in many ways favorable to DiSantis,
telling jurors that “objectivity is the standard” and that
they may not judge reasonable force from their own
“particularly sensitive” viewpoints. Counsel seemed to
accept this response, and the parties moved on to discuss
other instructions. When the court later returned to the
reasonable force instruction and asked whether the
defense “was comfortable with the rest of it,” counsel
balked: “I can’t say ‘comforted,’ but I do not even know
how to frame my argument. Something feels wrong
about it, but I do not think that is going to help my position.”
This expression of general discomfort falls short of the
specific objection that we require in order to preserve
a challenge to a proposed jury instruction. See Wheeler,
540 F.3d at 688. We will accordingly review the instruction
only for plain error. And the district court did not
plainly err in giving an instruction that so closely tracks
the Supreme Court’s description of the type of reasonable
force that an arresting officer may use without violating
a suspect’s Fourth Amendment rights. In Graham
v. Connor, 490 U.S. 386, 388 (1989), the Court held that
claims of excessive police force against an arrestee are
subject to a test of “objective reasonableness.” That test
“requires careful attention to the facts and circumstances
of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396. The “ ‘reasonableness’ of a
particular force must be judged from the perspective of a
reasonable officer on the scene.” Id. Relying on Graham,
we have upheld a jury instruction that put forth this
objective, “reasonable law enforcement officer on the
scene” test in another § 242 case charging a police officer
with the use of excessive force. United States v. Brown, 250
F.3d 580, 586 (7th Cir. 2001). DiSantis’s challenge to the
district court’s reasonable force instruction is therefore
without merit, especially since, as with the bodily
injury instruction, DiSantis fails to offer an alternative
definition of reasonable force.
We also disagree with DiSantis that the instruction
would have been adequate only if accompanied by expert
testimony on reasonable police force. Although in some
instances expert testimony may assist the jury in determining
whether an officer used excessive force, see Kladis
v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987), expert testimony
is by no means required in all excessive force
cases. Since the question of excessive force is so factintensive,
the jury will often be “in as good a position as
the experts” to decide whether the officer’s conduct was
“objectively reasonable.” Thompson v. City of Chicago, 472
F.3d 444, 458 (7th Cir. 2006). The jury in this case, having
heard extensive testimony on the facts and circumstances
surrounding the traffic stops, was well-positioned to
decide whether DiSantis used reasonable force.
D. Missing Witness Instruction
DiSantis’s final argument challenges the district
court’s refusal to give a “missing witness” instruction—
that is, an instruction that the prosecution’s failure
to call a witness may give rise to an inference that the
witness’s testimony would have been unfavorable to the
government. United States v. Gant, 396 F.3d 906, 910 (7th
Cir. 2005) (citing Fed. Crim. Jury Instr. 7th Cir. 3.24 cmt.
(1999)). DiSantis argues that the court should have tendered
a missing witness instruction as to Robert Bertucci
and Steven Roden, passengers in Pine’s car during the
traffic stop and potential government witnesses.
A district court has “broad discretion” in refusing to
give missing witness instructions, which are generally
disfavored. See United States v. Brock, 417 F.3d 692, 699 (7th
Cir. 2005). “To establish entitlement to a missing witness
instruction, a defendant must prove two things: first, that
the absent witness was peculiarly within the government’s
power to produce; and second, that the testimony
would have elucidated issues in the case and would not
merely have been cumulative.” Gant, 396 F.3d at 910
(quoting United States v. Valles, 41 F.3d 355, 360 (7th
Cir. 1994)).
It is clear from the record that Bertucci and Roden were
not so peculiarly within the government’s control as to
justify a missing witness instruction. At the instructions
conference, the district court noted that the defense
could have subpoenaed both Bertucci and Roden, yet
defense counsel offered no explanation for failing to do
so. The absence of any explanation, either in the
district court or on appeal, why the defense did not
subpoena these witnesses demonstrates that DiSantis
was not entitled to a missing witness instruction. See id.
(observing that the defendant had neither attempted to
subpoena the witness nor “offered a satisfactory explanation
for failing to do so”); United States v. Romo, 914
F.2d 889, 894 (7th Cir. 1990) (noting that the defendant
failed to subpoena, interview, or request the production
of the witness); cf. United States v. Cochran, 955 F.2d 1116,
1122 (7th Cir. 1992) (affirming the district court’s refusal
to allow comment on the absence of government witnesses
during closing arguments where the defendant
“could have issued subpoenas to both ‘missing witnesses’
”).
Although the absence of peculiar government control is
alone sufficient to deny a missing witness instruction,
DiSantis also fails to explain how Bertucci’s and Roden’s
testimony would have “elucidated issues.” Gant, 396
F.3d at 910. While these men were passengers in Pine’s
car and so might have offered some material testimony
on the charged violation of her rights (of which DiSantis
was acquitted), they presumably did not even see the
assault on Hector Montes, which was the basis of
DiSantis’s conviction. Both requirements for a missing
witness instruction are lacking.
III. Conclusion
For the foregoing reasons, we AFFIRM DiSantis’s conviction.
5-4-09
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Rohan Heron
In May of 2006, Rohan Heron
decided to ride shotgun with his friend Gigiman
Hamilton on a cross-country road trip. It is unclear
whether Heron initially knew that this trip was for the
purpose of trafficking drugs. A confidential informant did
know, however, and tipped off the Drug Enforcement
Administration (“DEA”). The DEA, in turn, let the
Caseyville Police Department know that a semi-tractor
trailer carrying a shipment of marijuana and possibly
cocaine would be arriving in St. Clair County, Illinois.
Based on this information, Officer Greg Hosp stopped
Hamilton’s vehicle. After a dog alerted to the presence
of drugs, Hosp and the K-9 unit officer searched the
truck, discovered marijuana and cocaine, and arrested
Hamilton and Heron.
Heron was charged with possession with the intent to
distribute five or more kilograms of cocaine and possession
with intent to distribute 100 or more kilograms of marijuana,
both in violation of 21 U.S.C. § 841(a)(1). He was
convicted and sentenced to 120 months’ imprisonment.
Before trial, he filed a motion to suppress statements he
had made, but his motion was denied in part. During trial,
he made a motion for a continuance, which was also
denied. He now appeals, asserting that the court’s denial
of his motion for a continuance was both an abuse of
discretion and a violation of his constitutional rights to
due process and effective assistance of counsel. We
agree with Heron that it was an abuse of discretion to
deny the motion for a continuance. We therefore
reverse and remand for further proceedings.
I
Hosp stopped Hamilton’s vehicle at 1:30 a.m. on May 10,
2006, and Hamilton’s and Heron’s arrests followed
shortly thereafter. Hamilton was given Miranda warnings
and interrogated the next day. According to the DEA-6
Report of Investigation for this interview, Hamilton
stated that he had asked “his friend, Rohan HERON, to
drive with him to California in order to help him drive
back.” Hamilton did not allude to any other trips the two
might have taken. On November 13, 2006, Hamilton gave
an additional statement, with counsel present, which
was memorialized in another DEA-6 Report. At this
meeting, Hamilton stated that Heron “was only involved
in the transportation of marihuana on the occasion in
which they were arrested in Illinois” and that “at first,
HERON did not want to participate in the transportation.”
Hamilton added, however, that Heron “agreed to assist
in the transportation of the marihuana for $20,000,”
which was half of the payment for the entire shipment.
On June 11, 2007, the day before Heron’s trial, Hamilton
changed his story. He informed the government that he
now intended to testify that Heron had been involved
in two prior drug trips as well. At 6:00 that evening—that
is, as soon as it could—the government informed defense
counsel of this change in testimony. The next morning,
defense counsel made an oral motion “to compel the
government to generate a DEA-6,” or, in the alternative, to
“compel Mr. Hamilton to discuss with me the testimony
that he has already discussed with the government.” The
court ordered the government to make Hamilton available
but refused to compel him to speak to defense
counsel. Defense counsel then moved for a continuance
to investigate the new testimony. The government did not
oppose the motion, but the district court denied it, commenting
only that it was 9:30 in the morning of trial
and that despite the court’s sympathy “to the immediacy
of the events that prompted your Motion at this time,” the
trial would not be continued. The court offered no
further explanation of its ruling.
Heron had been interrogated on May 10 at 4 a.m. by
Special Agent Scott and Task Force Officer Wade
Gummersheimer. The government says that this
meeting was conducted at Heron’s request and that
someone at the Fairview Heights Police Department
conveyed the request to Gummersheimer. Heron asserts
that there is insufficient evidence in the record to support
that contention, as Gummersheimer did not testify
at the suppression hearing, and the person who allegedly
made the phone call was never identified. The critical
point, however, is undisputed: Heron was not given
Miranda warnings at this interview. The DEA-6 Report
for this meeting notes that Heron maintained that it was
only in Phoenix, Arizona, that he became aware that he
and Hamilton were driving bags full of marijuana
across the country. Thirty-two hours later on May 11,
Scott and Special Agent Rehg began another interrogation
of Heron at the Fairview Heights Police Department,
except this time they did administer Miranda warnings.
During the second session, Heron said essentially the
same thing as he had at the May 10 session.
Heron filed a motion to suppress his statements from
both the May 10 and May 11 interrogations. The district
court ruled that the May 10 statements had to be suppressed,
but that the May 11 statements could be admitted.
II
We begin with Heron’s assertion that the district court
erred when it refused to grant a continuance after Hamilton
changed his testimony at the eleventh hour. Heron
argues that the court’s refusal to do so was both an abuse
of discretion and a constitutional violation. We need not
reach the constitutional argument unless we conclude
that the district court did not abuse its discretion (the
relevant standard of review) when it acted. United States v.
Vincent, 416 F.3d 593, 598 (7th Cir. 2005). This court has
identified several factors that a district court should
consider in deciding whether to grant such a motion:
1) the amount of time available for preparation;
2) the likelihood of prejudice from denial of the continuance;
3) the defendant’s role in shortening the effective
preparation time;
4) the degree of complexity of the case;
5) the availability of discovery from the prosecution;
6) the likelihood a continuance would have
satisfied the movant’s needs; and
7) the inconvenience and burden to the district court and its pending
case load.
Id. In Heron’s case, most of these points weigh in favor
of granting a continuance, some strongly so. Defense
counsel had no time, as a practical matter, to prepare
for the dramatic change in Hamilton’s testimony, as he
received notice only fifteen hours before the trial was to
begin (Factor 1). While defense counsel was able to impeach
Hamilton’s revised story, the new account was
more than enough to cast Heron in the jury’s eyes as an
active participant in the drug trip. Hamilton’s previous
statements had portrayed Heron as a reluctant participant
who was coaxed into continuing the drug trip with
offers of money. The change in testimony thus created a
likelihood of prejudice (Factor 2). Heron did not play any
role in creating the time pressure (Factor 3). The presence
of the new testimony added some complexity to the case,
as the alleged previous trips would require further investigation
(Factor 4). Finally, although defense counsel
initially wondered whether Hamilton would testify with
enough specificity about the timing of the trips to allow
further investigation, Hamilton did in fact testify that the
first prior trip was “[s]hortly after February” of 2006 and
that the second prior trip was “[s]hortly after that. I think
about a month or so.” This narrowed the date range for
the earlier trips and would have provided an adequate
starting point for the investigation into trucking records,
receipts, and cell phone records that Heron wished to
conduct (Factor 6).
Only two factors weighed against granting a continuance.
First, the government provided all information
that was available to it immediately after Hamilton
changed his testimony, even though it did not formally
create a DEA-6 Report (Factor 5). In addition, delaying
the trial may have been an inconvenience and a burden
to the district court, even though the judge did not
mention any special circumstances beyond the fact that
the motion was being made at 9:30 a.m. on the morning
of trial (Factor 7). While it is true that the court is entitled
to adhere to the date it sets for trial, it “cannot have a
myopic insistence upon expeditiousness in the face of a
justifiable reason for delay.” United States v. Jones, 455
F.3d 800, 804-05 (7th Cir. 2006) (internal quotation
marks omitted).
Hamilton’s changed testimony was a crucial piece of
evidence that defense counsel should have had an opportunity to develop. We hold that the district court abused
its discretion in denying the motion for a continuance.
III
While our conclusion with respect to the continuance
is enough to require a remand, we address Heron’s suppression
arguments as well, since this issue will inevitably
arise again in the proceedings below. Heron argues that
his May 11 statements should have been suppressed
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and
Missouri v. Seibert, 542 U.S. 600 (2004). In reviewing a
district court’s ruling on a motion to suppress, this court
reviews conclusions of law de novo and factual determinations
for clear error. United States v. Figueroa-Espana,
511 F.3d 696, 701 (7th Cir. 2007).
Calling it a “close call,” the district court suppressed
the May 10 statements because “the officers should have
given the defendant his Miranda warnings before
engaging in a conversation with him.” With regard to the
May 11 statements, the court applied the test set forth in
Justice Kennedy’s concurring opinion in Seibert. This test
requires that the court suppress statements that are a
product of a “two-step interrogation technique [that is]
used in a calculated way to undermine the Miranda warning.”
Seibert, 542 U.S. at 622. Importantly, “[t]he admissibility
of postwarning statements should continue to be
governed by the principles of [Oregon v. Elstad, 470 U.S.
298 (1985)] unless the deliberate two-step strategy was
employed.” Id. The district court found no intent on the
part of the DEA agents to engage in a two-step interrogation
in an effort to evade the dictates of Miranda. It therefore
analyzed the interrogations under Elstad and found
that the statements were given voluntarily after Miranda
warnings had been administered.
No single opinion in Seibert spoke for the Court; we
thus must strive to discern what exactly the decision
requires. Marks v. United States, 430 U.S. 188, 193 (1977)
provides the general rule for dealing with this kind of
outcome: “When a fragmented Court decides a case and
no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds”
(internal quotation marks omitted). When, however, a
concurrence that provides the fifth vote necessary to
reach a majority does not provide a “common denominator”
for the judgment, the Marks rule does not help to
resolve the ultimate question. See Schindler v. Clerk of the
Circuit Court, 715 F.2d 341, 345 (7th Cir. 1983) (declining to
apply the Marks rule to Baldasar v. Illinois, 446 U.S. 222
(1980)). See also United States v. Carrizales-Toledo, 454 F.3d
1142, 1150 (10th Cir. 2006) (“When the plurality and
concurring opinions take distinct approaches, and
there is no narrowest opinion representing the common
denominator of the Court’s reasoning, then Marks becomes
problematic. We do not apply Marks when the
various opinions supporting the Court’s decision are
mutually exclusive.”) (citations omitted) (internal quotation
marks omitted); A. T. Massey Coal Co. v. Massanari, 305
F.3d 226, 237 (4th Cir. 2002) (because it found “no theoretical
overlap between the rationales employed by the
plurality and Justice Kennedy” in Eastern Enterprises v.
Apfel, 524 U.S. 498 (1998), the court did not consider
Justice Kennedy’s reasoning to be a narrower ground or
controlling); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991) (en banc) (“But Marks is workable—one opinion can
be meaningfully regarded as ‘narrower’ than another—
only when one opinion is a logical subset of
other, broader opinions. In essence, the narrowest opinion
must represent a common denominator of the
Court’s reasoning; it must embody a position implicitly
approved by at least five Justices who support the judgment.”).
Applying that guidance, we conclude that the Marks rule
is not applicable to Seibert. Although Justice Kennedy
provided the crucial fifth vote for the majority, we find
it a strain at best to view his concurrence taken as a
whole as the narrowest ground on which a majority of the
Court could agree. It is true that parts of his reasoning
could be construed as a narrower ground than the one
described in Justice Souter’s plurality opinion, in that
Justice Kennedy would carve out a smaller exception to
Elstad. On the other hand, Justice Kennedy’s intent-based
test was rejected by both the plurality opinion and the
dissent in Seibert. Id. at 611-12 (“The threshold issue
when interrogators question first and warn later is thus
whether it would be reasonable to find that in these
circumstances the warnings could function effectively as
Miranda requires.”) (Souter, J., plurality opinion) (internal
quotation marks omitted); id. at 624 (“The plurality’s
rejection of an intent-based test is also, in my view, correct.”)
(O’Connor, J., dissenting). Although it is hard to
be sure, it is possible that Justice Breyer agreed with
Justice Kennedy’s focus on intent. Id. at 618 (“I also
agree with Justice Kennedy’s opinion insofar as it is
consistent with [the fruits] approach and makes clear
that a good-faith exception applies.”). Counting Justice
Breyer in the Kennedy camp, we are left with only two
Justices who support the intent-based test. This is obviously
not the “common denominator” that Marks was
talking about.
In a situation like this, it is risky to assume that the
Court has announced any particular rule of law, since
the plurality and dissent approaches garnered only four
votes each. See United States v. Alcan Aluminum Corp., 315
F.3d 179, 189 (2d Cir. 2003) (“When it is not possible to
discover a single standard that legitimately constitutes
the narrowest ground for a decision on that issue, there
is then no law of the land because no one standard commands
the support of a majority of the Supreme Court.”);
Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161,
170 (3d Cir. 1999) (“[I]n cases where approaches differ,
no particular standard is binding on an inferior court
because none has received the support of a majority of the
Supreme Court.”). In the case of Seibert, the only thing
we know for sure is that at least seven members of the
Court rejected an intent-based approach and accepted
some kind of exception to Elstad, even if the scope of that
exception remains unclear. See United States v. Rodriguez-
Preciado, 399 F.3d 1118, 1141 (9th Cir. 2005) (Berzon, J.,
dissenting).
Under these circumstances, we must continue to work
with the authoritative sources that remain available to
us. Up until now, we have not yet settled on a definitive
approach toward the problem addressed in Seibert. Our
first analysis of that decision in United States v. Stewart, 388
F.3d 1079 (7th Cir. 2004), produced a set of tentative
statements. We said that
at least as to deliberate two-step interrogations in
which Miranda warnings are intentionally withheld
until after the suspect confesses, the central voluntariness
inquiry of Elstad has been replaced by a presumptive
rule of exclusion, subject to a multifactor test
for change in time, place, and circumstances from
the first statement to the second.
Id. at 1090 (first emphasis added). We also expressed the
opinion that “Elstad appears to have survived Seibert.”
Id. (emphasis added). In a later case, United States v.
Peterson, 414 F.3d 825 (7th Cir. 2005), we did not reach
the question how Seibert would apply, but we observed
that the intent-based test was shared by only Justices
Kennedy and Breyer. Id. at 828. We then delved into the
rationale of Seibert:
The thinking behind this is that a suspect who has been
induced to make a statement may see little point in
clamming up after warnings have been given; he
may think that the cat is out of the bag. Moreover,
eliciting a statement before the suspect has been
informed of his rights implies that the warnings and
rights are charades, which reduces the chance that
the suspect will invoke his constitutional privilege.
Id. This reasoning appears to be defendant-focused. If that
is so, then it may be in some tension with our decision
in Stewart and Justice Kennedy’s intent-based test, as the
latter converts Miranda’s focus from a concern with the
defendant’s knowledge of her own rights into what
looks more like a rule designed to curb abuse by the police.
We have no need here to resolve once and for all what
rule or rules governing two-step interrogations can be
distilled from Seibert. This is because Heron’s May 11
statements would be admissible under any test one
might extract. We agree with the district court that those
statements would be admissible under Justice Kennedy’s
intent-based test. The district court found as a fact that
there was “no evidence that the officers, during the defendant’s
first statement, had any intent or strategy to
deliberately withhold Miranda warnings in an attempt
to get the defendant to confess.” In all likelihood, the
court was relying on Scott’s testimony that Heron had
requested the meeting with the officers and that Scott
and Rehg assumed that Heron had already been given
Miranda warnings.
Heron argues that the court’s finding was clearly erroneous.
He points out that Scott testified that she had
been with the DEA for nine-and-a-half years, and he
argues that the court could have inferred impermissible
intent directly from the fact that she failed to take the
precaution of administering Miranda warnings before
talking to Heron on May 10.
While this may have been a possible inference, the
district court was not compelled to make it. We cannot
find that the court committed clear error in crediting
Scott’s testimony that her lack of precaution was an
honest mistake. The court was entitled to conclude that
it was reasonable for her to assume that Heron would
have been given Miranda warnings upon arrest. There is
also a question whether the May 10 meeting was called
in response to Heron’s request, or if instead someone
from the Fairview Heights Police Department requested
the meeting. We decline to engage in speculation about
whether the police or Heron initiated the meeting, because
nothing turns on it. Law enforcement cannot be
expected to keep track of the identity of every person
who makes a phone call on behalf of another police
department.
We also see no reason to disturb the district court’s
conclusion that Heron gave the May 11 statement voluntarily.
As it notes, “[i]t is clear that Agent Rehg gave the
defendant his Miranda warnings before he questioned
him, and that the defendant appeared to understand
those warnings, but chose to waive his rights and gave
his statement to Agent Rehg.” Heron notes that Rehg
did not obtain a written Miranda waiver, but this alone
does not make Heron’s statement involuntary. Because
the May 11 statements were given voluntarily, they
would be admissible under the interpretation of Elstad
favored by the Seibert dissenters as well.
Finally, Heron’s statements would be admissible under
the approach of the Seibert plurality. For them, the
central inquiry is whether, given the totality of the circumstances,
the midstream Miranda warnings were
effective. The district court must weigh several factors
in determining effectiveness:
[1] the completeness and detail of the questions and
answers in the first round of interrogation, [2] the
overlapping content of the two statements, [3] the
timing and setting of the first and the second, [4] the
continuity of police personnel, and [5] the degree to
which the interrogator’s questions treated the
second round as continuous with the first.
Seibert, 542 U.S. at 615. We acknowledge that some of
these (unweighted) factors suggest that the court should
have excluded Heron’s May 11 statements. There was
sufficient overlap between the May 10 and May 11 statements
(and likely the questions that elicited the statements)
such that the officers involved did not think it
necessary to produce another DEA-6 Report for the
second interrogation (Factors 1, 2, & 5). The interrogations
also occurred in the same location, the Fairview Heights
Police Department (Factor 3). There was some but not
complete continuity of police personnel—Scott was
present at both interrogations (Factor 4).
The remaining factor supports admissibility. Thirty-two
hours elapsed between the first interrogation and the
second (Factor 3). This contrasts with the 20-minute
break in Seibert. Id. at 605. While this is a close case,
nothing in the Seibert plurality opinion condemns us to a
mechanical counting of items on a list. We must instead
examine each one of them for the light it throws on the
central inquiry: whether the later Miranda warnings
were effective. Here, the lengthy temporal separation
between Heron’s first and second encounters persuades
us that the district court did not err when it found that the
later warnings served their intended purpose. The May 11
statements thus would be admissible under the
Seibert plurality’s approach. Any way we look at the
problem, in summary, we conclude that the district
court correctly concluded that Heron’s May 11 statements
were admissible. They may therefore be used in
any further proceedings conducted by the district court.
* * *
For these reasons, we REVERSE the court’s judgment of
conviction and REMAND for further proceedings consistent
with this opinion.
5-5-09
Chicago Criminal Lawyer - Robert J Callahan
decided to ride shotgun with his friend Gigiman
Hamilton on a cross-country road trip. It is unclear
whether Heron initially knew that this trip was for the
purpose of trafficking drugs. A confidential informant did
know, however, and tipped off the Drug Enforcement
Administration (“DEA”). The DEA, in turn, let the
Caseyville Police Department know that a semi-tractor
trailer carrying a shipment of marijuana and possibly
cocaine would be arriving in St. Clair County, Illinois.
Based on this information, Officer Greg Hosp stopped
Hamilton’s vehicle. After a dog alerted to the presence
of drugs, Hosp and the K-9 unit officer searched the
truck, discovered marijuana and cocaine, and arrested
Hamilton and Heron.
Heron was charged with possession with the intent to
distribute five or more kilograms of cocaine and possession
with intent to distribute 100 or more kilograms of marijuana,
both in violation of 21 U.S.C. § 841(a)(1). He was
convicted and sentenced to 120 months’ imprisonment.
Before trial, he filed a motion to suppress statements he
had made, but his motion was denied in part. During trial,
he made a motion for a continuance, which was also
denied. He now appeals, asserting that the court’s denial
of his motion for a continuance was both an abuse of
discretion and a violation of his constitutional rights to
due process and effective assistance of counsel. We
agree with Heron that it was an abuse of discretion to
deny the motion for a continuance. We therefore
reverse and remand for further proceedings.
I
Hosp stopped Hamilton’s vehicle at 1:30 a.m. on May 10,
2006, and Hamilton’s and Heron’s arrests followed
shortly thereafter. Hamilton was given Miranda warnings
and interrogated the next day. According to the DEA-6
Report of Investigation for this interview, Hamilton
stated that he had asked “his friend, Rohan HERON, to
drive with him to California in order to help him drive
back.” Hamilton did not allude to any other trips the two
might have taken. On November 13, 2006, Hamilton gave
an additional statement, with counsel present, which
was memorialized in another DEA-6 Report. At this
meeting, Hamilton stated that Heron “was only involved
in the transportation of marihuana on the occasion in
which they were arrested in Illinois” and that “at first,
HERON did not want to participate in the transportation.”
Hamilton added, however, that Heron “agreed to assist
in the transportation of the marihuana for $20,000,”
which was half of the payment for the entire shipment.
On June 11, 2007, the day before Heron’s trial, Hamilton
changed his story. He informed the government that he
now intended to testify that Heron had been involved
in two prior drug trips as well. At 6:00 that evening—that
is, as soon as it could—the government informed defense
counsel of this change in testimony. The next morning,
defense counsel made an oral motion “to compel the
government to generate a DEA-6,” or, in the alternative, to
“compel Mr. Hamilton to discuss with me the testimony
that he has already discussed with the government.” The
court ordered the government to make Hamilton available
but refused to compel him to speak to defense
counsel. Defense counsel then moved for a continuance
to investigate the new testimony. The government did not
oppose the motion, but the district court denied it, commenting
only that it was 9:30 in the morning of trial
and that despite the court’s sympathy “to the immediacy
of the events that prompted your Motion at this time,” the
trial would not be continued. The court offered no
further explanation of its ruling.
Heron had been interrogated on May 10 at 4 a.m. by
Special Agent Scott and Task Force Officer Wade
Gummersheimer. The government says that this
meeting was conducted at Heron’s request and that
someone at the Fairview Heights Police Department
conveyed the request to Gummersheimer. Heron asserts
that there is insufficient evidence in the record to support
that contention, as Gummersheimer did not testify
at the suppression hearing, and the person who allegedly
made the phone call was never identified. The critical
point, however, is undisputed: Heron was not given
Miranda warnings at this interview. The DEA-6 Report
for this meeting notes that Heron maintained that it was
only in Phoenix, Arizona, that he became aware that he
and Hamilton were driving bags full of marijuana
across the country. Thirty-two hours later on May 11,
Scott and Special Agent Rehg began another interrogation
of Heron at the Fairview Heights Police Department,
except this time they did administer Miranda warnings.
During the second session, Heron said essentially the
same thing as he had at the May 10 session.
Heron filed a motion to suppress his statements from
both the May 10 and May 11 interrogations. The district
court ruled that the May 10 statements had to be suppressed,
but that the May 11 statements could be admitted.
II
We begin with Heron’s assertion that the district court
erred when it refused to grant a continuance after Hamilton
changed his testimony at the eleventh hour. Heron
argues that the court’s refusal to do so was both an abuse
of discretion and a constitutional violation. We need not
reach the constitutional argument unless we conclude
that the district court did not abuse its discretion (the
relevant standard of review) when it acted. United States v.
Vincent, 416 F.3d 593, 598 (7th Cir. 2005). This court has
identified several factors that a district court should
consider in deciding whether to grant such a motion:
1) the amount of time available for preparation;
2) the likelihood of prejudice from denial of the continuance;
3) the defendant’s role in shortening the effective
preparation time;
4) the degree of complexity of the case;
5) the availability of discovery from the prosecution;
6) the likelihood a continuance would have
satisfied the movant’s needs; and
7) the inconvenience and burden to the district court and its pending
case load.
Id. In Heron’s case, most of these points weigh in favor
of granting a continuance, some strongly so. Defense
counsel had no time, as a practical matter, to prepare
for the dramatic change in Hamilton’s testimony, as he
received notice only fifteen hours before the trial was to
begin (Factor 1). While defense counsel was able to impeach
Hamilton’s revised story, the new account was
more than enough to cast Heron in the jury’s eyes as an
active participant in the drug trip. Hamilton’s previous
statements had portrayed Heron as a reluctant participant
who was coaxed into continuing the drug trip with
offers of money. The change in testimony thus created a
likelihood of prejudice (Factor 2). Heron did not play any
role in creating the time pressure (Factor 3). The presence
of the new testimony added some complexity to the case,
as the alleged previous trips would require further investigation
(Factor 4). Finally, although defense counsel
initially wondered whether Hamilton would testify with
enough specificity about the timing of the trips to allow
further investigation, Hamilton did in fact testify that the
first prior trip was “[s]hortly after February” of 2006 and
that the second prior trip was “[s]hortly after that. I think
about a month or so.” This narrowed the date range for
the earlier trips and would have provided an adequate
starting point for the investigation into trucking records,
receipts, and cell phone records that Heron wished to
conduct (Factor 6).
Only two factors weighed against granting a continuance.
First, the government provided all information
that was available to it immediately after Hamilton
changed his testimony, even though it did not formally
create a DEA-6 Report (Factor 5). In addition, delaying
the trial may have been an inconvenience and a burden
to the district court, even though the judge did not
mention any special circumstances beyond the fact that
the motion was being made at 9:30 a.m. on the morning
of trial (Factor 7). While it is true that the court is entitled
to adhere to the date it sets for trial, it “cannot have a
myopic insistence upon expeditiousness in the face of a
justifiable reason for delay.” United States v. Jones, 455
F.3d 800, 804-05 (7th Cir. 2006) (internal quotation
marks omitted).
Hamilton’s changed testimony was a crucial piece of
evidence that defense counsel should have had an opportunity to develop. We hold that the district court abused
its discretion in denying the motion for a continuance.
III
While our conclusion with respect to the continuance
is enough to require a remand, we address Heron’s suppression
arguments as well, since this issue will inevitably
arise again in the proceedings below. Heron argues that
his May 11 statements should have been suppressed
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and
Missouri v. Seibert, 542 U.S. 600 (2004). In reviewing a
district court’s ruling on a motion to suppress, this court
reviews conclusions of law de novo and factual determinations
for clear error. United States v. Figueroa-Espana,
511 F.3d 696, 701 (7th Cir. 2007).
Calling it a “close call,” the district court suppressed
the May 10 statements because “the officers should have
given the defendant his Miranda warnings before
engaging in a conversation with him.” With regard to the
May 11 statements, the court applied the test set forth in
Justice Kennedy’s concurring opinion in Seibert. This test
requires that the court suppress statements that are a
product of a “two-step interrogation technique [that is]
used in a calculated way to undermine the Miranda warning.”
Seibert, 542 U.S. at 622. Importantly, “[t]he admissibility
of postwarning statements should continue to be
governed by the principles of [Oregon v. Elstad, 470 U.S.
298 (1985)] unless the deliberate two-step strategy was
employed.” Id. The district court found no intent on the
part of the DEA agents to engage in a two-step interrogation
in an effort to evade the dictates of Miranda. It therefore
analyzed the interrogations under Elstad and found
that the statements were given voluntarily after Miranda
warnings had been administered.
No single opinion in Seibert spoke for the Court; we
thus must strive to discern what exactly the decision
requires. Marks v. United States, 430 U.S. 188, 193 (1977)
provides the general rule for dealing with this kind of
outcome: “When a fragmented Court decides a case and
no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds”
(internal quotation marks omitted). When, however, a
concurrence that provides the fifth vote necessary to
reach a majority does not provide a “common denominator”
for the judgment, the Marks rule does not help to
resolve the ultimate question. See Schindler v. Clerk of the
Circuit Court, 715 F.2d 341, 345 (7th Cir. 1983) (declining to
apply the Marks rule to Baldasar v. Illinois, 446 U.S. 222
(1980)). See also United States v. Carrizales-Toledo, 454 F.3d
1142, 1150 (10th Cir. 2006) (“When the plurality and
concurring opinions take distinct approaches, and
there is no narrowest opinion representing the common
denominator of the Court’s reasoning, then Marks becomes
problematic. We do not apply Marks when the
various opinions supporting the Court’s decision are
mutually exclusive.”) (citations omitted) (internal quotation
marks omitted); A. T. Massey Coal Co. v. Massanari, 305
F.3d 226, 237 (4th Cir. 2002) (because it found “no theoretical
overlap between the rationales employed by the
plurality and Justice Kennedy” in Eastern Enterprises v.
Apfel, 524 U.S. 498 (1998), the court did not consider
Justice Kennedy’s reasoning to be a narrower ground or
controlling); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991) (en banc) (“But Marks is workable—one opinion can
be meaningfully regarded as ‘narrower’ than another—
only when one opinion is a logical subset of
other, broader opinions. In essence, the narrowest opinion
must represent a common denominator of the
Court’s reasoning; it must embody a position implicitly
approved by at least five Justices who support the judgment.”).
Applying that guidance, we conclude that the Marks rule
is not applicable to Seibert. Although Justice Kennedy
provided the crucial fifth vote for the majority, we find
it a strain at best to view his concurrence taken as a
whole as the narrowest ground on which a majority of the
Court could agree. It is true that parts of his reasoning
could be construed as a narrower ground than the one
described in Justice Souter’s plurality opinion, in that
Justice Kennedy would carve out a smaller exception to
Elstad. On the other hand, Justice Kennedy’s intent-based
test was rejected by both the plurality opinion and the
dissent in Seibert. Id. at 611-12 (“The threshold issue
when interrogators question first and warn later is thus
whether it would be reasonable to find that in these
circumstances the warnings could function effectively as
Miranda requires.”) (Souter, J., plurality opinion) (internal
quotation marks omitted); id. at 624 (“The plurality’s
rejection of an intent-based test is also, in my view, correct.”)
(O’Connor, J., dissenting). Although it is hard to
be sure, it is possible that Justice Breyer agreed with
Justice Kennedy’s focus on intent. Id. at 618 (“I also
agree with Justice Kennedy’s opinion insofar as it is
consistent with [the fruits] approach and makes clear
that a good-faith exception applies.”). Counting Justice
Breyer in the Kennedy camp, we are left with only two
Justices who support the intent-based test. This is obviously
not the “common denominator” that Marks was
talking about.
In a situation like this, it is risky to assume that the
Court has announced any particular rule of law, since
the plurality and dissent approaches garnered only four
votes each. See United States v. Alcan Aluminum Corp., 315
F.3d 179, 189 (2d Cir. 2003) (“When it is not possible to
discover a single standard that legitimately constitutes
the narrowest ground for a decision on that issue, there
is then no law of the land because no one standard commands
the support of a majority of the Supreme Court.”);
Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161,
170 (3d Cir. 1999) (“[I]n cases where approaches differ,
no particular standard is binding on an inferior court
because none has received the support of a majority of the
Supreme Court.”). In the case of Seibert, the only thing
we know for sure is that at least seven members of the
Court rejected an intent-based approach and accepted
some kind of exception to Elstad, even if the scope of that
exception remains unclear. See United States v. Rodriguez-
Preciado, 399 F.3d 1118, 1141 (9th Cir. 2005) (Berzon, J.,
dissenting).
Under these circumstances, we must continue to work
with the authoritative sources that remain available to
us. Up until now, we have not yet settled on a definitive
approach toward the problem addressed in Seibert. Our
first analysis of that decision in United States v. Stewart, 388
F.3d 1079 (7th Cir. 2004), produced a set of tentative
statements. We said that
at least as to deliberate two-step interrogations in
which Miranda warnings are intentionally withheld
until after the suspect confesses, the central voluntariness
inquiry of Elstad has been replaced by a presumptive
rule of exclusion, subject to a multifactor test
for change in time, place, and circumstances from
the first statement to the second.
Id. at 1090 (first emphasis added). We also expressed the
opinion that “Elstad appears to have survived Seibert.”
Id. (emphasis added). In a later case, United States v.
Peterson, 414 F.3d 825 (7th Cir. 2005), we did not reach
the question how Seibert would apply, but we observed
that the intent-based test was shared by only Justices
Kennedy and Breyer. Id. at 828. We then delved into the
rationale of Seibert:
The thinking behind this is that a suspect who has been
induced to make a statement may see little point in
clamming up after warnings have been given; he
may think that the cat is out of the bag. Moreover,
eliciting a statement before the suspect has been
informed of his rights implies that the warnings and
rights are charades, which reduces the chance that
the suspect will invoke his constitutional privilege.
Id. This reasoning appears to be defendant-focused. If that
is so, then it may be in some tension with our decision
in Stewart and Justice Kennedy’s intent-based test, as the
latter converts Miranda’s focus from a concern with the
defendant’s knowledge of her own rights into what
looks more like a rule designed to curb abuse by the police.
We have no need here to resolve once and for all what
rule or rules governing two-step interrogations can be
distilled from Seibert. This is because Heron’s May 11
statements would be admissible under any test one
might extract. We agree with the district court that those
statements would be admissible under Justice Kennedy’s
intent-based test. The district court found as a fact that
there was “no evidence that the officers, during the defendant’s
first statement, had any intent or strategy to
deliberately withhold Miranda warnings in an attempt
to get the defendant to confess.” In all likelihood, the
court was relying on Scott’s testimony that Heron had
requested the meeting with the officers and that Scott
and Rehg assumed that Heron had already been given
Miranda warnings.
Heron argues that the court’s finding was clearly erroneous.
He points out that Scott testified that she had
been with the DEA for nine-and-a-half years, and he
argues that the court could have inferred impermissible
intent directly from the fact that she failed to take the
precaution of administering Miranda warnings before
talking to Heron on May 10.
While this may have been a possible inference, the
district court was not compelled to make it. We cannot
find that the court committed clear error in crediting
Scott’s testimony that her lack of precaution was an
honest mistake. The court was entitled to conclude that
it was reasonable for her to assume that Heron would
have been given Miranda warnings upon arrest. There is
also a question whether the May 10 meeting was called
in response to Heron’s request, or if instead someone
from the Fairview Heights Police Department requested
the meeting. We decline to engage in speculation about
whether the police or Heron initiated the meeting, because
nothing turns on it. Law enforcement cannot be
expected to keep track of the identity of every person
who makes a phone call on behalf of another police
department.
We also see no reason to disturb the district court’s
conclusion that Heron gave the May 11 statement voluntarily.
As it notes, “[i]t is clear that Agent Rehg gave the
defendant his Miranda warnings before he questioned
him, and that the defendant appeared to understand
those warnings, but chose to waive his rights and gave
his statement to Agent Rehg.” Heron notes that Rehg
did not obtain a written Miranda waiver, but this alone
does not make Heron’s statement involuntary. Because
the May 11 statements were given voluntarily, they
would be admissible under the interpretation of Elstad
favored by the Seibert dissenters as well.
Finally, Heron’s statements would be admissible under
the approach of the Seibert plurality. For them, the
central inquiry is whether, given the totality of the circumstances,
the midstream Miranda warnings were
effective. The district court must weigh several factors
in determining effectiveness:
[1] the completeness and detail of the questions and
answers in the first round of interrogation, [2] the
overlapping content of the two statements, [3] the
timing and setting of the first and the second, [4] the
continuity of police personnel, and [5] the degree to
which the interrogator’s questions treated the
second round as continuous with the first.
Seibert, 542 U.S. at 615. We acknowledge that some of
these (unweighted) factors suggest that the court should
have excluded Heron’s May 11 statements. There was
sufficient overlap between the May 10 and May 11 statements
(and likely the questions that elicited the statements)
such that the officers involved did not think it
necessary to produce another DEA-6 Report for the
second interrogation (Factors 1, 2, & 5). The interrogations
also occurred in the same location, the Fairview Heights
Police Department (Factor 3). There was some but not
complete continuity of police personnel—Scott was
present at both interrogations (Factor 4).
The remaining factor supports admissibility. Thirty-two
hours elapsed between the first interrogation and the
second (Factor 3). This contrasts with the 20-minute
break in Seibert. Id. at 605. While this is a close case,
nothing in the Seibert plurality opinion condemns us to a
mechanical counting of items on a list. We must instead
examine each one of them for the light it throws on the
central inquiry: whether the later Miranda warnings
were effective. Here, the lengthy temporal separation
between Heron’s first and second encounters persuades
us that the district court did not err when it found that the
later warnings served their intended purpose. The May 11
statements thus would be admissible under the
Seibert plurality’s approach. Any way we look at the
problem, in summary, we conclude that the district
court correctly concluded that Heron’s May 11 statements
were admissible. They may therefore be used in
any further proceedings conducted by the district court.
* * *
For these reasons, we REVERSE the court’s judgment of
conviction and REMAND for further proceedings consistent
with this opinion.
5-5-09
Chicago Criminal Lawyer - Robert J Callahan
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