In Favor of the Non-Moving Party. Boucher, 880 F.3D at 365. in This

U.S. v. BISHOP 335 Cite as 910 F.3d 335 (7th Cir. 2018)

in favor of the non-moving party. Boucher, 880 F.3d at 365. In this case, it appears UNITED STATES of America, that the district court drew at least one Plaintiff-Appellee, inference against the non-moving party. v. But any error was harmless. First, the district court had already stepped through Edward BISHOP, Defendant-Appellant. the correct contractual analysis and made No. 18-2019 its conclusion before any discussion of inferences to draw from the parties’ behav- United States Court of Appeals, ior after the incident had occurred. Sec- Seventh Circuit. ond, and more importantly, even if we Argued November 14, 2018 were to draw the opposite inference in Vesuvius’s favor, it would make no differ- Decided December 7, 2018 ence. We might infer that Vesuvius genu- Background: Defendant was charged inely believed that it had complied in full with discharging firearm during drug with its obligations under ¶ 22 by notifying transaction. The United States District ACBL of the problem on February 20, Court for the Northern District of Indiana, 2015. Vesuvius might then have genuinely No. 3:17-cr-55 RLM-MGG, Robert L. Mil- believed that it had all the time in the ler, Jr., J., denied defendant’s motion to world to bring suit, and it did so two years suppress evidence obtained during search later. But because we find that the con- of his cell phone, and, after jury convicted tract is not ambiguous, the parties’ actions him, 2018 WL 1616892, denied his motion after they signed the contract are irrele- for new trial. Defendant appealed. vant to the meaning of the contract itself. Regardless of whether we were to infer Holding: The Court of Appeals, Easter- from Vesuvius’s actions that it genuinely brook, Circuit Judge, held that search war- believed its own position or whether it rant satisfied Fourth Amendment’s partic- knew that its suit was untimely, the mean- ularity requirement. ing of the contract is the same. Affirmed.

III. CONCLUSION Standing on its own, perhaps the limita- 1. Controlled Substances O147 tions provision of the contract might be With respect to the Fourth Amend- ambiguous. But read in context with the ment’s particularity requirement, a war- rest of the contract, there is no question rant authorizing a search of a house for that Vesuvius was required to file suit no drugs permits the police to search every- later than four months after it discovered where in the house, because ‘‘everywhere’’ the damage. Because Vesuvius waited two is where the contraband may be hidden. years to bring its claim, the district court U.S. Const. Amend. 4. properly dismissed it as untimely. Accord- ingly, we AFFIRM the judgment of the 2. Searches and Seizures O148 district court. With respect to the Fourth Amend- ment’s particularity requirement, a war- , rant authorizing a search for documents that will prove a crime may authorize a search of every document the suspect has,

000001 336 910 FEDERAL REPORTER, 3d SERIES

because any of them might supply evi- EASTERBROOK, Circuit Judge. dence. U.S. Const. Amend. 4. A drug deal went wrong. After receiving a dose of pepper spray from his customer, 3. Searches and Seizures O125 Edward Bishop shot her in the arm. A Search warrant, which permitted jury convicted him of discharging a fire- search of every document on defendant’s arm during a drug transaction, 18 U.S.C. cell phone, satisfied Fourth Amendment’s § 924(c), and the judge sentenced him to particularity requirement; warrant stated 120 months’ imprisonment. He presents the crimes under investigation, i.e., crimi- one contention on appeal: that the warrant nal recklessness with deadly weapon and authorizing a search of his cell phone—a drug dealing, and police did not know search that turned up incriminating evi- where defendant kept his drug ledgers and dence—violated the Fourth Amendment’s gun videos until they searched the phone. requirement that every warrant ‘‘particu- U.S. Const. Amend. 4. larly describ[e] the place to be searched, and the persons or things to be seized.’’ 4. Searches and Seizures O125 This warrant described the ‘‘place to be With respect to the Fourth Amend- searched’’ as the cell phone Bishop carried ment’s particularity requirement, it is during the attempted sale, and it described enough if the warrant cabins the things the things to be seized as: being looked for by stating what crime is any evidence (including all photos, vid- under investigation. U.S. Const. Amend. eos, and/or any other digital files, includ- 4. ing removable memory cards) of suspect identity, motive, scheme/plan along with 5. Searches and Seizures O124 DNA evidence of the crime of Criminal With respect to the Fourth Amend- Recklessness with a deadly weapon ment’s particularity requirement, a war- which is hidden or secreted [in the cell- rant may be thought too general only if phone or] related to the offense of Deal- some more-specific alternative would have ing illegal drugs. done better at protecting privacy while That is too general, Bishop asserts, be- still permitting legitimate investigation. cause it authorized the police to rummage U.S. Const. Amend. 4. through every application and file on the phone and left to the officers’ judgment the decision which files met the descrip- Appeal from the United States District tion. The district court found the warrant Court for the Northern District of Indiana, valid, however, and denied the motion to South Bend Division. No. 3:17-cr-55 RLM- suppress. MGG—Robert L. Miller, Jr., Judge. [1, 2] Bishop is right about the facts. This warrant does permit the police to look Nathaniel Whalen, Attorney, OFFICE at every file on his phone and decide which OF THE UNITED STATES ATTOR- files satisfy the description. But he is NEY, Hammond, IN, Plaintiff-Appellee. wrong to think that this makes a warrant William J. Stevens, Attorney, Bridgman, too general. Criminals don’t advertise MI, for Defendant-Appellant. where they keep evidence. A warrant authorizing a search of a house for drugs Before EASTERBROOK, SYKES, and permits the police to search everywhere in SCUDDER, Circuit Judges. the house, because ‘‘everywhere’’ is where

000002 U.S. v. BISHOP 337 Cite as 910 F.3d 335 (7th Cir. 2018) the contraband may be hidden. United instrumentalities and evidence of States v. Ross, 456 U.S. 798, 820–21, 102 crime at this [time] unknown. S.Ct. 2157, 72 L.Ed.2d 572 (1982); Steele v. 427 U.S. at 480–81 n.10, 96 S.Ct. 2737 United States, 267 U.S. 498, 503, 45 S.Ct. (emphasis added). Andresen accepted the 414, 69 L.Ed. 757 (1925). And a warrant propriety of looking at every document in authorizing a search for documents that his possession but maintained that the ital- will prove a crime may authorize a search icized phrase entitled the agents to seize of every document the suspect has, be- anything they wanted. The Justices con- cause any of them might supply evidence. cluded, however, that, when read in con- To see this, it isn’t necessary to look be- text, the contested language did no more yond Andresen v. Maryland, 427 U.S. 463, than permit the seizure of any other evi- 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), in dence pertaining to real-estate fraud, the which the Court considered a warrant that subject of the warrant. Id. at 479–82, 96 permitted a search of every document in a S.Ct. 2737. lawyer’s files. Agents were authorized to [3, 4] Just so with this warrant. It per- search for: mits the search of every document on the title notes, title abstracts, title run- cell phone, which (like a computer) serves downs; contracts of sale and/or assign- the same function as the filing cabinets in ments from Raffaele Antonelli and Andresen’s office. See Riley v. California, Rocco Caniglia to Mount Vernon De- 573 U.S. 373, 134 S.Ct. 2473, 2489, 189 velopment Corporation and/or others; L.Ed.2d 430 (2014). And as with filing lien payoff correspondence and lien cabinets, the incriminating evidence may pay-off memoranda to and from lien- be in any file or folder. That’s why courts holders and noteholders; correspon- routinely conclude that warrants with dence and memoranda to and from wording similar to the one at issue here trustees of deeds of trust; lenders in- are valid. See, e.g., Archer v. Chisholm, structions for a construction loan or 870 F.3d 603, 616 (7th Cir. 2017); United construction and permanent loan; dis- States v. Hall, 142 F.3d 988, 996–97 (7th bursement sheets and disbursement Cir. 1998); Wayne R. LaFave, 2 Search & memoranda; checks, check stubs and Seizure § 4.6(d) (5th ed. 2012 & Supp. ledger sheets indicating disbursement 2018) (citing many other cases). It is upon settlement; correspondence and enough, these decisions hold, if the war- memoranda concerning disbursements rant cabins the things being looked for by upon settlement; settlement statements stating what crime is under investigation. and settlement memoranda; fully or [5] Andresen and its successors show partially prepared deed of trust releas- that specificity is a relative matter. A war- es, whether or not executed and rant may be thought ‘‘too general’’ only if whether or not recorded; books, rec- some more-specific alternative would have ords, documents, papers, memoranda done better at protecting privacy while and correspondence, showing or tend- still permitting legitimate investigation. ing to show a fraudulent intent, and/or See United States v. Vitek Supply Corp., knowledge as elements of the crime of 144 F.3d 476, 482 (7th Cir. 1998); United false pretenses, in violation of Article States v. Bentley, 825 F.2d 1104, 1110 (7th 27, Section 140, of the Annotated Code Cir. 1987). So if the police had known that of Maryland, 1957 Edition, as amended Andresen kept all of his files about the and revised, together with other fruits, real-estate deal in a particular cabinet, fail-

000003 338 910 FEDERAL REPORTER, 3d SERIES

ure to identify that cabinet in the warrant motion for reconsideration. Debtor appeal- would have violated the constitutional par- ed. ticularity requirement. But a warrant need Holdings: The Court of Appeals, Manion, not be more specific than knowledge al- Circuit Judge, held that: lows. In Andresen the police did not know how the target organized his files, so the (1) debt collector’s placement of validation best they could do was the broad language notice on second page of debt collection the warrant used. Likewise here: the po- letter did not overshadow notice, and lice did not know where on his phone (2) district court did not abuse its discre- Bishop kept his drug ledgers and gun vid- tion in denying debtor leave to amend eos—and, if he had told them, they would her complaint to add new claims on have been fools to believe him, for crimi- grounds of undue delay and prejudice. nals often try to throw investigators off Affirmed. the trail. This warrant was as specific as circumstances allowed. The Constitution does not require more. 1. Federal Courts O3587(1), 3667 AFFIRMED The Court of Appeals reviews de novo the dismissal of a complaint for failure to state a claim, accepting the plaintiff’s fac- , tual allegations as true and drawing all permissible inferences in her favor.

Anne O’BOYLE, Plaintiff-Appellant, 2. Federal Civil Procedure O1772 v. To survive a motion to dismiss for failure to state a claim, a plaintiff must REAL TIME RESOLUTIONS, allege enough facts to state a claim to INC., Defendant-Appellee. relief that is plausible on its face. No. 18-1936 3. Federal Civil Procedure O1831 United States Court of Appeals, Whether a debt-collection letter is Seventh Circuit. confusing in violation of the Fair Debt Argued October 24, 2018 Collection Practices Act (FDCPA) is generally a fact question that, if well pleaded, Decided December 7, 2018 survives a motion to dismiss for failure to Rehearing and Rehearing En Banc state a claim. Consumer Credit Protec- Denied January 17, 2019 tion Act § 807, 15 U.S.C.A. § 1692e. Background: Debtor brought action O against debt collector, alleging that debt 4. Finance, Banking, and Credit 1482 collector set misleading debt collection let- If it is apparent from a reading of the ter in violation of Fair Debt Collection debt collection letter that not even a signif- Practices Act (FDCPA). The United States icant fraction of the population would be District Court for the Eastern District of misled by it, then the plaintiff fails to state Wisconsin, No. 17-C-0957, Lynn Adelman, a claim under the Fair Debt Collection J., granted debt collector’s motion to dis- Practices Act (FDCPA) and dismissal is miss for failure to state claim, and subse- appropriate. Consumer Credit Protection quently, 2018 WL 1709412, denied debtor’s Act § 807, 15 U.S.C.A. § 1692e.

000004 U.S. v. BOLIAUX 493 Cite as 915 F.3d 493 (7th Cir. 2019)

Ray had a severe mental impairment. employee to testify as expert on topic Therefore, the ALJ will have to revisit her of floorplanning. assessment of Ray’s mental impairments Affirmed. in any case. Accordingly, we VACATE the judgment 1. Criminal Law O872.5 and REMAND to the district court with instructions to remand the case to the Means used to carry out fraudulent agency for further proceedings. scheme are not separate elements requiring unanimity.

2. Criminal Law O1134.60 , If defendant loses in district court on multiple grounds, he must contest all on appeal; prevailing on one will not suffice.

3. Criminal Law O1130(6) Defendant’s failure to address district UNITED STATES of America, court’s ruling that he forfeited claim that Plaintiff-Appellee, indictment charging him with multiple v. counts of wire fraud and bank fraud was Edward BOLIAUX, Defendant- duplicitous until his reply brief waived ap- Appellant. pellate review of claim. O No. 18-1322 4. Criminal Law 1032(6) Defendant forfeited claim that indict- United States Court of Appeals, ment charging him with multiple counts of Seventh Circuit. wire fraud and bank fraud was duplicitous Argued February 4, 2019 by failing to raise claim before trial, absent showing of good cause for delay. Fed. R. Decided February 12, 2019 Crim. P. 12(b)(3)(B)(ii). Rehearing Denied March 12, 2019 5. Criminal Law O1032(1) Background: Defendant was convicted in Defendant’s failure to raise before tri- the United States District Court for the al claim that indictment charging him with Northern District of Illinois, No. 16 Cr six counts of bank fraud was multiplicious 115, Manish S. Shah, J., of wire fraud and barred him from raising claim on appeal, bank fraud, and he appealed. absent showing of good cause for delay. Holdings: The Court of Appeals, Easter- Fed. R. Crim. P. 12(b)(3)(B)(ii). brook, Circuit Judge, held that: 6. Criminal Law O476.6 (1) defendant waived appellate review of claim that indictment was duplicitous; District judge did not abuse his discretion by permitting defrauded lender’s (2) defendant forfeited claim that indict- employee to testify in used car dealer’s ment was duplicitous; prosecution for wire fraud and bank fraud (3) defendant waived claim that indictment as expert on topic of floorplanning, despite was multiplicious; and defendant’s contention that jury would (4) district judge did not abuse his discre- likely have understood him to be fact wit- tion by permitting defrauded lender’s ness, where testimony elicited by govern-

000005 494 915 FEDERAL REPORTER, 3d SERIES ment from employee was limited to his market value and leaving the lenders un- role as industry expert and did not stray der-secured. He also began to sell cars into fact-witness territory. Fed. R. Evid. without using the proceeds to repay the 702. loans. After one of the lenders detected 7. Criminal Law O1130(.5) this and impounded the collateral, Boliaux Appropriate course of action when persuaded the custodian to release eight counsel falsely certifies that appendix to cars, which he sold for his own benefit. brief in criminal appeal contains all materi- Deceit continued after EMC Automotive als required by circuit rules is to give collapsed. In September 2008 Cindy Bo- defendant plenary appellate review, and liaux, then Edward’s wife, incorporated penalize lawyer directly. U.S.Ct. of App. Joliet Motors, which Edward operated 7th Cir.Rule 30, 28 U.S.C.A. from the premises formerly occupied by EMC. Joliet Motors received installment Appeal from the United States District payments sent by the customers of EMC Court for the Northern District of Illinois, yet did not remit them to lenders. Boliaux Eastern Division. No. 16 CR 115—Manish had trouble borrowing against the invento- S. Shah, Judge. ry of his new dealership, and in 2008 and 2009 he turned to check kiting. Timothy John Chapman, Attorney, Of- fice of the United States Attorney, Chica- For these and related acts, a jury con- go, IL, for Plaintiff-Appellee. victed him of four counts of wire fraud and Andrew Gable, Attorney, Chicago, IL, six of bank fraud. 18 U.S.C. §§ 1343, 1344. for Defendant-Appellant. He has been sentenced to 48 months’ imprisonment and three years’ supervised re- Before WOOD, Chief Judge, and lease. EASTERBROOK and ST. EVE, Circuit Boliaux contends that the evidence was Judges. insufficient—on the wire fraud counts prin- EASTERBROOK, Circuit Judge. cipally because he did not transmit any- Between 2002 and 2008 Edward Boliaux thing by wire, and on the bank fraud operated EMC Automotive, a used-car counts principally because no one from the dealership, in Joliet, Illinois. He borrowed banks testified that the banks lost money. money from three lenders, using inventory The district court addressed these and oth- as security. Most loans were secured by er contentions when denying Boliaux’s mo- the cars’ certificates of title, a device called tion under Fed. R. Crim. P. 29: floorplanning. Because there is supposed Viewed in the light most favorable to the to be only one title certificate per car, the prosecution, see United States v. Wash- dealer cannot transfer good title to a cus- ington, 184 F.3d 653, 657 (7th Cir. 1999), tomer without paying the lender. Although the evidence demonstrated that Boliaux lenders may allow sales to precede pay- obtained financing from lenders through ment, they demand that the money be held materially false representations, and he in trust until the loan is retired. But begin- perpetuated his scheme through the con- ning in 2007 Boliaux persuaded state offi- cealment of material facts. Boliaux ar- cials to issue duplicate certificates of title gues that the evidence amounted to, at on the pretense that the originals had been most, a disjointed series of immaterial lost. He used these to obtain multiple loans breaches of contract. Neither the facts against single vehicles, exceeding the cars’ nor the law support this argument. Ob-

000006 U.S. v. BOLIAUX 495 Cite as 915 F.3d 493 (7th Cir. 2019) taining money through a scheme intend- tion) and the evidence of Boliaux’s con- ed to cheat others is a crime whether or trol over the bank accounts, demonstrat- not it is also sloppy business or breach ed the risk of loss to the banks and of contract. It suffices to note that Bo- Boliaux’s intent to deceive through liaux lied to obtain duplicate titles for check kiting. cars that he knew were financed by one The evidence was not just sufficient, it lender, and used the duplicate titles to was overwhelming, and defendant’s mo- obtain additional financing from a section for a judgment of acquittal under ond lender—thereby compromising the Rule 29 is denied. security interests of both lenders. Later, It is not necessary to say more about the he forged lien releases purportedly from sufficiency of the evidence. Later we dis- GMAC, and with those releases, ob- cuss the decision by Boliaux’s lawyer to tained car titles that he used to secure omit from his brief the district court’s more financing—thereby cheating those analysis of this subject. lenders by concealing GMAC’s interests. According to industry representatives, [1–3] Boliaux asked the district judge clear title to a vehicle that was part of to instruct the jury that it had to agree, floorplan financing was material to lend- unanimously, how he carried out his ers, even when liens were not individual- scheme to defraud. The judge properly ly filed and notwithstanding the breadth declined. Each wire-fraud count of the in- of the collateral securing financing. The dictment charged a single scheme to de- evidence of defendant’s control over the fraud implemented in 17 ways (obtaining car dealerships was sufficient to prove duplicate titles by falsely asserting that his intentional participation in the others had been lost, pledging the same scheme. His intent to defraud was mani- car to multiple lenders, selling cars with- fest in his false statements and forger- out repaying the loans, and so on). The ies, and in his concealment of facts asso- means used to carry out a fraudulent ciated with Joliet Motors. The charged scheme are not separate elements requir- wire transmissions traveled across state ing unanimity. See, e.g., Richardson v. lines—from Joliet Motors in Illinois and United States, 526 U.S. 813, 817, 119 S.Ct. routed through Pennsylvania or Ohio, 1707, 143 L.Ed.2d 985 (1999). Boliaux and they advanced the scheme to de- seeks to avoid this rule by contending that fraud the lenders because they were the wire-fraud charges are duplicitous—in payments for a vehicle that had been other words, that each count really sold to the detriment of the lender’s charges multiple crimes, rather than one interests. The evidence of Boliaux’s su- crime committed through multiple acts. pervision of Joliet Motors, and his in- The district court addressed this argu- volvement in the payment-processing ment, too, in the order from which we have system, was sufficient to make the wire already quoted: transmissions a foreseeable consequence Boliaux raises an untimely argument of his scheme. concerning duplicity, but he never chal- Testimony from the victim banks was lenged the indictment under Rule not necessary to support a conviction on 12(b)(3)(B)(i) and offers no excuse for the bank fraud counts. The bank rec- this failure. The claim is forfeited, but in ords, coupled with the explanatory testi- any event, there was no duplicity, much mony of expert witness Wolverton (who less prejudicial duplicity. Each wire testified under Rule 702 without objec- fraud count alleged one execution of a

000007 496 915 FEDERAL REPORTER, 3d SERIES

single scheme to defraud with a variety charging a single crime in multiple counts. of alleged means. No unanimity with Boliaux tells us that he committed at most respect to those means was required. one bank fraud, no matter how many United States v. Daniel, 749 F.3d 608, checks he wrote against insufficient funds, 614 (7th Cir. 2014). making the six bank-fraud counts multi- Thus Boliaux lost in the district court on plicitous. Yet multiplicity is among the two grounds: forfeiture and the merits. His matters that must be raised before trial. opening brief on appeal ignores the forfei- Fed. R. Crim. P. 12(b)(3)(B)(ii). Consider- ture. If you lose in the district court on ation of the argument now depends not multiple grounds, you must contest all on only on a demonstration of plain error (the appeal; prevailing on one won’t suffice. Af- standard for all contentions first presented ter the prosecutor relied on the forfeiture on appeal) but also on a demonstration of ruling, Boliaux finally addressed it in his good cause. Boliaux does not argue that he reply brief. That’s too late—and as it hap- had good cause—or any cause at all—for pens too little as well. delay in making this argument. We there- [4] Federal Rule of Criminal Proce- fore do not consider it. dure 12(b)(3) lists more than a dozen de- fenses or arguments that must be present- One evidentiary contention requires a ed before trial, so that any error may be few words. John Brincat appeared for the corrected (and the prosecutor can appeal prosecution as an expert witness on the an adverse decision without encountering a topic of floorplanning. He explained to the problem under the Double Jeopardy jury how these loans are made and why Clause). See United States v. Nixon, 901 lenders’ risk is increased by the existence F.3d 918, 920–21 (7th Cir. 2018). Duplicity of multiple title certificates and multiple is among them. There is an escape hatch: loans against a single vehicle. The district ‘‘If a party does not meet the deadline for judge found this testimony proper under making a Rule 12(b)(3) motion, the motion Fed. R. Evid. 702. Still, Boliaux contends is untimely. But a court may consider the that the testimony should have been defense, objection, or request if the party barred because Brincat acted as both an shows good cause.’’ Fed. R. Crim. P. expert witness and a fact witness, a dual 12(c)(3). The district judge stated that Bo- role that may leave the jury confused liaux has not offered an excuse for his about how to treat the testimony. See, e.g., delay. That remains true. The reply brief United States v. Jett, 908 F.3d 252, 267–68 does not contend that Boliaux had ‘‘good (7th Cir. 2018). The district court disa- cause’’—or indeed any cause—for raising a greed, stating: ‘‘The testimony elicited by duplicity argument only in mid-trial. The the government from witness Brincat was decision may well have been strategic, de- limited to his role as an industry expert ferring matters until it was too late for the and did not stray into fact-witness territo- prosecutor either to amend the indictment ry’’. Boliaux contests this by observing or appeal from an adverse decision. This is that Brincat testified about how the whole exactly the kind of strategy that Rule floorplan-lending industry works, and Bo- 12(b)(3) is designed to block. liaux insists that because Brincat is em- [5] Not content with holding back a ployed by Automotive Finance Corp. duplicity argument until mid-trial, Boliaux (AFC), one of the defrauded lenders, the withheld a multiplicity argument until his jury likely would have understood him to opening appellate brief. Multiplicity means be a fact witness.

000008 U.S. v. BOLIAUX 497 Cite as 915 F.3d 493 (7th Cir. 2019)

[6] The district judge did not abuse his 59, 61–62 (7th Cir. 1995); Mortell v. Mor- discretion by permitting Brincat to testify. tell Co., 887 F.2d 1322, 1327 (7th Cir. He did not describe any special features of 1989); Teitelbaum v. Curtis Publishing AFC’s practices or any of the dealings Co., 314 F.2d 94, 95–96 (7th Cir. 1963); between AFC and Boliaux. The jury surely Sparrow v. Yellow Cab Co., 273 F.2d 1, 4 understood Brincat to be testifying exclu- (7th Cir. 1959); Chicago & Eastern Illinois sively as an expert. We are surprised that Ry. v. Southern Ry., 261 F.2d 394, 400 n.7 the prosecutor would present Brincat as (7th Cir. 1958). The client then may be an expert, enabling the defense to paint a able to recover from counsel for malprac- vital witness as biased, but puzzling deci- tice. We concluded in United States v. sions do not make evidence inadmissible. Smith, 953 F.2d 1060, 1068 (7th Cir. 1992), Boliaux presents a few additional argu- that this would not be appropriate in crimi- ments, which do not require discussion. nal cases, where defendants have difficulty They have been considered and are reject- monitoring their lawyers’ performance— ed. and where dismissal of the appeal or sum- We promised earlier to return to how mary affirmance would lead straight to a Boliaux has treated the district court’s ex- decision finding that counsel had furnished planations for its decisions. Circuit Rule ineffective assistance, which would author- 30(b)(1) requires every appellant to in- ize a new appeal. It is best in criminal clude, in an appendix to the brief, ‘‘[c]opies cases to give the defendant plenary appel- of any TTT opinions, orders, or oral rulings late review, as we have done, and penalize in the case that address the issues sought the lawyer directly. See In re Galvan, 92 to be raised.’’ Circuit Rule 30(d) adds: F.3d 582 (7th Cir. 1996). See also Guentch- ‘‘The appendix to each appellant’s brief ev v. INS, 77 F.3d 1036 (7th Cir. 1996) shall contain a statement that all of the (same approach in immigration law). materials required by parts (a) and (b) of Galvan established $1,000 as the pre- this rule are included.’’ Boliaux’s brief, sumptive fine for a violation of Circuit signed by Andrew S. Gable of Chicago, Rule 30 in a criminal case. 92 F.3d at 584– contains the required certification. But it is 85. See also, e.g., United States v. Rogers, false. The appendix omits the district 270 F.3d 1076, 1085 (7th Cir. 2001). Adjust- court’s statement of its reasons for finding ing for inflation, $1,000 in 1996 is equiva- the evidence sufficient, finding the duplici- lent to $1,597 today. This implies that the ty argument (and the proposed unanimity presumptive fine should become $1,600. instruction) forfeited under Rule 12(b), and Counsel has 14 days to show cause why permitting Brincat to testify. (The opinion he should not be fined $1,600, and repri- addresses other topics as well.) The appen- manded, for his violation of Circuit Rule dix also omits substantial parts of the dis- 30(b) and his false statement under Circuit trict judge’s mid-trial discussions of these Rule 30(d). and other issues. Was Gable hoping that we would not discover those rulings? The judgment is affirmed, and an order to show cause will be issued. [7] False representations to the court of appeals have consequences. In civil litigation a false certificate of compliance with Circuit Rule 30(a) and (b) leads to sum- , mary affirmance or dismissal of the appeal. See, e.g., Urso v. United States, 72 F.3d

000009 574 914 FEDERAL REPORTER, 3d SERIES

F.3d 484, 492 (7th Cir. 2016) (citation omitted). UNITED STATES of America, Plaintiff-Appellee, [6] The record evidence does not compel a contrary conclusion. To be sure, cer- v. tain findings from the immigration judge Scott BOOKS, Defendant-Appellant. give us pause. For one, the judge concluded that there was no substantial risk of No. 17-3493 torture for Jews in Belarus because, de- United States Court of Appeals, spite ‘‘widespread anti-Semitism in Bela- Seventh Circuit. rus,’’ incidents targeting Jews have been declining. While it is true that the raw Argued November 9, 2018 number of anti-Jewish incidents in Belarus has declined, so has the Jewish population. Decided January 29, 2019 In this context, an absolute decrease in Background: Defendant was convicted in incidents does not necessary equate to a the United States District Court for the relative increase in safety for any individu- Central District of Illinois, No. 1:16-cr- al. Nor does the evidence of Ruderman’s 10037, Michael M. Mihm, J., of bank rob- mother’s safe travel to and from Belarus bery, and he appealed. mean that Ruderman will be equally safe. Holdings: The Court of Appeals, Scudder, His mother has a Christian name that is Circuit Judge, held that: not associated with her late husband, whereas Ruderman’s patronymic clearly (1) admission of bank tellers’ testimony signals that he is both Jewish and the son identifying defendant as robber did not of a known political activist whom the KGB violate defendant’s right against self- may have tortured and killed. But on the incrimination; other hand, there is evidence that Ruder- (2) decision to admit tellers’ testimony did man became less susceptible to physical not violate defendant’s right to con- attacks as he grew and became better able front witnesses; and to defend himself, that no one in his family (3) any error in district court’s pretrial has been threatened in Belarus, and that ruling on whether defendant’s coerced he lived in Belarus for eight years follow- confession could be used for impeaching his father’s death without any threat of ment purposes was harmless. torture on account of his relationship to his father. Considering all the evidence, the Affirmed. record does not compel the conclusion that there is a substantial risk that Ruderman O would be tortured if he returned to Bela- 1. Criminal Law 339.10(1), 393(1) rus. Admission of bank tellers’ testimony * * * identifying defendant as robber did not violate defendant’s Fifth Amendment right Ruderman’s petition for review is against self-incrimination, despite defen- GRANTED. dant’s contention that police detective tainted their eyewitness identifications by , telling them that he had confessed to robbery, in light of evidence that tellers based their testimony on their prior dealings and

000010 U.S. v. BOOKS 575 Cite as 914 F.3d 574 (7th Cir. 2019) first-hand familiarity with defendant, with- purposes was harmless beyond reasonable out regard to any information supplied by doubt in bank robbery prosecution, despite police detective. U.S. Const. Amend. 5. defendant’s contention that ruling violated his right against self-incrimination, where 2. Criminal Law O662.7 evidence against defendant at trial was District court’s decision to admit bank overwhelming, including eyewitness testi- tellers’ testimony identifying defendant as mony of two bank tellers, text message to robber did not violate defendant’s Sixth friend indicating his desire to rob bank, Amendment right to confront witnesses, identification of his car as getaway vehicle, despite defendant’s contention that police and testimony of over dozen other wit- detective tainted their eyewitness identifi- nesses regarding of his financial difficulties cations by telling them of his coerced con- and prior disputes with bank. U.S. Const. fession to robbery, thereby limiting his Amend. 5. ability to confront and cross-examine them, where defendant was able to vigorously cross-examine tellers at trial without Appeal from the United States District any reference to confession. U.S. Const. Court for the Central District of Illinois. Amend. 6. No. 1:16-cr-10037—Michael M. Mihm, Judge. 3. Criminal Law O662.1 Defendant’s Sixth Amendment right Kevin Crowley Knight, Attorney, Office to confront witnesses is not absolute, but of the United States Attorney, Rock Is- instead subject to reasonable limitations land, IL, Paul Morris, Attorney, Office of imposed by district court. U.S. Const. the United States Attorney, Peoria, IL, for Amend. 6. Plaintiff-Appellee.

4. Criminal Law O1036.10 Robert A. Alvarado, Attorney, Office of the Federal Public Defender, Peoria, IL, Courts should refrain from reviewing Michael Ajay Chandra, Attorney, Office of claims that particular line of cross-exami- the Federal Public Defender, Springfield, nation would have violated defendant’s IL, for Defendant-Appellant. right against self-incrimination when defendant in fact never testified at trial and Before BAUER, BRENNAN, and thus never underwent cross-examination. SCUDDER, Circuit Judges. U.S. Const. Amend. 5. SCUDDER, Circuit Judge. 5. Criminal Law O1165(1) Not every constitutional error auto- On trial for bank robbery, Scott Books matically requires reversal of defendant’s chose not to testify in his own defense and conviction; instead, if government can was found guilty and sentenced to 180 show beyond reasonable doubt that error months’ imprisonment. He now challenges complained of did not contribute to verdict two pretrial decisions by the district court. obtained, then error is deemed harmless The first allowed eyewitness testimony at and defendant is not entitled to reversal. trial from the two bank tellers that Books alleged based their identification of him as 6. Criminal Law O1170.5(1) the robber not on personal knowledge, but Any error in district court’s pretrial rather on information improperly supplied ruling on whether defendant’s coerced con- by a police detective. The second ruling fession could be used for impeachment would have allowed the government, had

000011 576 914 FEDERAL REPORTER, 3d SERIES

Books chosen to testify at trial, to impeach The police arrested Books the next day. him with physical evidence directly tying After waiving his Miranda rights and him to the robbery—evidence the police agreeing to an interview, he confessed to learned of (and then recovered) only as a the robbery, while also telling the police result of a confession the district court where they could find the gloves, clothing, separately had determined was unlawfully and fake gun he used. The police found coerced. these items exactly where Books de- Neither challenge succeeds. The district scribed, and in time a grand jury indicted court did not err in finding the eyewitness Books for the robbery. identifications reflected the tellers’ firsthand knowledge of Books, and thus allow- B ing their testimony at trial was entirely The district court held a series of pre- proper. Nor can we conclude that the dis- trial hearings to determine the admissibili- trict court’s conditional impeachment rul- ty of evidence contested by Books. Three ing, even if wrong on the law, mandates of those rulings are significant to this ap- reversal in light of the overwhelming peal. weight of evidence against Books. So we affirm. First, the district court suppressed Books’s confession, finding that the police I officers overstepped and overcame Books’s will by threatening to arrest his wife and A take his children into custody if he did not On July 28, 2016 a man robbed the Land own up to his role in the robbery—render- of Lincoln Credit Union in Normal, Illi- ing the confession involuntary. The court nois. Dressed in a black hooded sweatshirt, suppressed both the confession and its wearing a mask and neon gloves, the rob- physical fruits—specifically, the clothing, ber approached the counter and, while mo- gloves, and fake gun the police recovered tioning toward the drawer with what ap- based upon Books telling them where to peared to be a black handgun, demanded look. ‘‘all the money.’’ The robbery lasted all but Second, the district court denied Books’s 20 seconds, with the offender making off motion to prevent the two bank tellers with $18,000 and fleeing in a Buick SUV. (Bateman and Phelps) from testifying at Two tellers recognized the robber’s trial. Books had sought to exclude their voice and mannerisms and immediately testimony on the basis that the police de- identified him as Scott Books—a long-time tective who investigated the robbery im- customer of the credit union. Holly Bate- properly tainted their identifications when, man told her supervisor (and later the a day after the robbery, he allegedly told police) she was 99% certain Books was the both witnesses that Books had confessed robber because she had interacted with to the crime. The government disagreed, him on at least six prior occasions. The taking the position that the detective in no second teller, Susan Phelps, agreed with way revealed Books’s confession and thus Bateman’s identification of Books as the in no way influenced the tellers’ clear and offender. A third witness, James Teidman, definitive identification of Books as the was driving by the bank when he saw the robber. The district court held a hearing, robber running from the bank with a gun, received testimony from the tellers and only then to speed away in a Buick SUV. detective, and found it ‘‘clear from th[e]

000012 U.S. v. BOOKS 577 Cite as 914 F.3d 574 (7th Cir. 2019) record that [both tellers] have a truly inde- remove your mask?’’ Bateman told the pendent source of identification of [Books] jury that she ‘‘instantly’’ recognized other than any suggestion that would have Books’s voice and likewise knew it was been put in their mind by the officer.’’ Books from his distinct mannerisms. Accordingly, the district court permitted Asked at trial about her confidence the tellers to testify at trial. level that Books committed the rob- Third, the district court considered but bery, Bateman testified that she was reserved definitively ruling until trial on 110% sure because the incident had the government’s motion for permission to replayed over and over in her mind. impeach Books with the fruits of his con- 1 Susan Phelps, the second bank teller, fession in the event he chose to testify. also identified Books as the robber. Books opposed the motion and urged the While not as fast as Bateman to recog- district court to hold that the price for the nize Books during the robbery, Phelps police unlawfully coercing his confession testified she was confident Books was should be the suppression of all incrimina- the offender based on his unique man- ting evidence (his admission and the physi- nerisms, including his walk and jittery cal fruits) for all purposes, including im- disposition. peachment. The district court said it was 1 Phillip Meyer, a friend and former co- inclined to allow some impeachment but worker of Books, testified that he had reserved a final ruling unless and until received a text message from Books Books chose to testify and the government on the day of the robbery or the day sought to impeach him on cross-examina- before asking, ‘‘I wonder what bank I tion with his prior statements describing should rob today?’’ the whereabouts of the clothing he wore 1 Todd Hogan, the bank’s vice president, during the robbery. The district court cast testified that he remembered teller its ruling this way: ‘‘[I]f and when we get Holly Bateman calling him immediate- to that point [of the trial], any questions ly after the robbery to tell him she that the government wished to ask the was 99% sure the robber was Books. defendant if he testifies, I would have to Hogan also explained that Books’s hear exactly what the questions are out- business account had been flagged in side the presence of the jury so there the bank’s system on multiple occa- could be specific objections.’’ sions due to attempts to deposit checks backed by insufficient funds. C 1 James Teidman testified that he was In the end, Books chose not to testify at driving by the credit union when the trial, and thus neither his coerced confes- robbery occurred and saw a Buick sion nor the resulting physical fruits came SUV, the same model later tracked to into evidence. The government nonetheless Books’s residence, flee the scene. presented a strong case, including testimo- While Books chose not to testify, his ny from these witnesses: counsel vigorously cross-examined the gov- 1 Bank teller Holly Bateman identified ernment’s witnesses. When it came to tell- Books as the robber. She testified that ers Bateman and Phelps, defense counsel she knew Books from her work at the challenged their recollection of the rob- credit union and immediately recog- bery, probed the reliability of their identi- nized him as the robber—so much so fications of Books and the getaway car, that she almost said ‘‘Scott, can you and examined their memory of the rob-

000013 578 914 FEDERAL REPORTER, 3d SERIES ber’s dress, voice, and mannerisms—all in 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where an effort to question their overall confi- the focus is more simply on the reliability dence that Books was the offender. At no of in-court identification testimony with point during the trial did Books’s counsel the defendant (not the government) bear- or the government refer to Books’s confes- ing the initial burden of showing that the sion or to the police detective’s (allegedly government did something to taint the impermissible) interaction with the two identification. See also, e.g., United States tellers. The jury returned a guilty verdict. v. L’Allier, 838 F.2d 234, 239 (7th Cir.1988) (explaining that the defendant bears the II burden of showing that the challenged identification was unduly suggestive). A The proper reach and application of the Books challenges the district court’s pre- Kastigar rule has not gone unnoticed by trial ruling denying his motion to preclude other courts. See, e.g., United States v. the two tellers from testifying at trial on Allen, 864 F.3d 63, 90 n.121 (2d Cir.2017) the basis that the police detective allegedly (‘‘[I]t is not clear whether all involuntary tainted their eyewitness identifications by statements or all compelled statements telling them that he had confessed to the should be subjected to the strong medicine robbery. This misconduct, Books contends, prescribed in Kastigar, or whether some violated his Fifth Amendment right other doctrine should govern in certain against self-incrimination. He further ar- circumstances.’’); United States v. Jones, gues that the district court’s pretrial ruling 542 F.2d 186, 199 n.24 (4th Cir.1976) (dis- too circumscribed his Sixth Amendment cussing uncertainty over Kastigar’s appli- right to cross-examine the tellers at trial. cation to coerced confessions). The facts belie both contentions. [1] We have not had a case requiring While all agree that our review of legal us to choose sides, and this appeal does not issues is de novo, the parties dispute the either. We can comfortably resolve the legal standard that governs the admission case on narrower grounds, because under at trial of the bank tellers’ identification either Kastigar or Biggers (or hybrids of testimony. Books invites us to follow Kast- either standard), the evidence was more igar v. United States, and thereby place than sufficient to show that the two tellers, the burden on the government to show Bateman and Phelps, identified Books that the tellers’ testimony was ‘‘derived based on their prior dealings and first- from legitimate independent sources’’ and, hand familiarity with him, without regard as a result, not unduly influenced by the to any information supplied by the police police detective. See 406 U.S. 441, 461–62, detective. At no point did the tellers, and 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The most especially Holly Bateman, ever waiv- government, on the other hand, urges us er in their confidence that Books was the to read Kastigar as more narrowly apply- robber. So, whether assessed under Kasti- ing to, and not beyond, the setting that gar or a lesser standard, Books’s challenge gave rise to its holding—circumstances in to the district court’s admission of the which a witness testifies pursuant to a tellers’ testimony cannot succeed. grant of immunity. See id. The govern- [2] Books fares no better when con- ment instead asks us to employ the less tending that the district court’s ruling on onerous, due-process based standard found the tellers’ testimony also violated the in cases like Neil v. Biggers, 409 U.S. 188, Sixth Amendment by limiting his ability to

000014 U.S. v. BOOKS 579 Cite as 914 F.3d 574 (7th Cir. 2019) confront and cross-examine these wit- less revealing, that he had confessed to nesses. A fulsome cross-examination, the robbery. The Confrontation Clause Books posits, would have entailed ques- required no more. tioning how the witnesses arrived at their identification testimony—a line of ques- B tioning, as Books sees it, that necessarily This brings us to Books’s Fifth Amend- would have exposed that the police im- ment challenge to the district court’s pre- properly told both tellers that he had con- trial impeachment ruling. Books argues fessed to the robbery. We cannot agree, as that the ruling—allowing the government, Books’s position misfires on the law and if he chose to testify, to cross-examine him facts. with the fruits of his coerced confession— created an unconstitutional predicament [3] A defendant’s Sixth Amendment and catch-22: he was forced to either for- right to confront witnesses is not abso- feit his right to testify in his own defense, lute, but instead subject to reasonable or, if he did take the stand, face a surefire limitations imposed by the district court. conviction once the government impeached See United States v. Saunders, 166 F.3d him with the fruits of his confession. 907, 918 (7th Cir.1999) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. Books may be right in his contention 1431, 89 L.Ed.2d 674 (1986) ). The limita- that the district court, even though reserv- tion Books challenges came from the dis- ing a final ruling until after seeing whether trict court’s pretrial ruling suppressing he chose to testify and what questions the his coerced confession. This ruling fa- government wanted to ask on cross-exami- vored Books and, beyond precluding the nation, committed legal error in conclud- government from using the confession as ing, however conditionally, that some im- evidence, naturally limited how he would peachment with the physical fruits of a approach cross-examining government coerced confession may be permissible. witnesses, for he rightly wanted to avoid While that proposition is not settled in the the jury learning that he had confessed to law, Books’s position is not without some the robbery. But accepting a necessary support. See, e.g., Chavez v. Martinez, 538 and proper limitation on cross-examina- U.S. 760, 769, 123 S.Ct. 1994, 155 L.Ed.2d tion does not, without more, run afoul of 984 (2003) (plurality opinion) (emphasizing, the Confrontation Clause, especially albeit in dicta, that ‘‘those subjected to where, as here, Books was able as a prac- coercive police interrogations have an au- tical matter to adequately, and indeed tomatic protection from the use of their vigorously, cross-examine both bank tell- involuntary statements (or evidence de- ers. See United States v. Sasson, 62 F.3d rived from their statements) in any subse- 874, 882 (7th Cir.1995) (explaining that quent criminal trial’’). the Confrontation Clause ‘‘guarantees The government urges us to avoid an- only an opportunity for a thorough and swering this question. Pointing to Luce v. effective cross-examination, ‘not cross-ex- United States, 469 U.S. 38, 105 S.Ct. 460, amination that is effective in whatever 83 L.Ed.2d 443 (1984), the government way, and to whatever extent, the defense says that Books waived any challenge to might wish’ ’’) (quoting Delaware v. Fen- the district court’s ruling by not testifying sterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 at trial. The government’s position finds L.Ed.2d 15 (1985) ). And Books was able substantial, if not dispositive, support in to do so without ever insinuating, much our decision in United States v. Wilson,

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307 F.3d 596, 600–01 (7th Cir.2002), where permissible impeachment. See Arizona v. the defendant chose not to testify at trial Fulminante, 499 U.S. 279, 306, 111 S.Ct. and, as a result, we declined to review the 1246, 113 L.Ed.2d 302 (1991) (holding that merits of his claim that a pretrial ruling on the doctrine of harmless error applies to the admissibility of particular impeach- the violation of the defendant’s Fifth ment testimony violated his Fifth Amend- Amendment right against self-incrimina- ment right to remain silent. tion through the admission at trial of an [4] The whole point of the rule an- involuntary confession). And the same nounced in Luce, which we extended to the analysis would apply if we accept Books’s domain of a Fifth Amendment claim in contention that the district court’s ruling Wilson, is that courts should refrain from constructively foreclosed his decision to reviewing claims that a particular line of take the stand. See Ortega v. O’Leary, 843 cross-examination would have violated a F.2d 258, 262 (7th Cir.1988) (applying defendant’s right against self-incrimination harmless error analysis to the denial of the when the defendant in fact never testified right to testify); Alicea v. Gagnon, 675 at trial and thus never underwent cross- F.2d 913, 925 (7th Cir.1982) (reaching the examination. Any other course, the reason- same conclusion). ing runs, would require too much speculation on how the testimony and related [6] In reviewing the trial record, our questioning would have played out at trial. obligation is to determine whether any er- See Wilson, 307 F.3d at 600–01. ror was harmless beyond a reasonable doubt, and we do so in no small part by Even if we agreed with Books that Wil- evaluating the overall strength of the pros- son should be read more narrowly, our ecution’s case. See Jones v. Basinger, 635 ensuing reasoning would not travel a path F.3d 1030, 1052 (7th Cir.2011). On this that resulted in an award of relief. Both front, Books faces an insurmountable bur- parties agree that the ultimate merits of den because the evidence against him at Books’s Fifth Amendment claim is subject trial was overwhelming: the eyewitness to harmless error review. Indeed, the doc- testimony of the two bank tellers, the text trine of harmless error finds straightfor- message to a friend indicating his desire to ward application on the evidence presented rob a bank, the identification of his car as at Books’s trial. the getaway vehicle, and the testimony of [5] Not every constitutional error auto- over a dozen other witnesses—all in the matically requires the reversal of a defen- broader context of his financial difficulties dant’s conviction. Instead, as the Supreme and prior disputes with the Land of Lin- Court has explained, ‘‘if the government coln Credit Union. On this record, any can show ‘beyond a reasonable doubt that error in the district court’s pretrial ruling the error complained of did not contribute on the scope of permissible impeachment to the verdict obtained,’ TTT then the error was harmless beyond a reasonable doubt. is deemed harmless and the defendant is not entitled to reversal.’’ Weaver v. Massa- III chusetts, ––– U.S. ––––, 137 S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017) (quoting Two other matters warrant attention. Chapman v. California, 386 U.S. 18, 24, 87 First, relying on Brooks v. Tennessee, 406 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). This U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 precise standard would apply if Books had (1972), Books argues that the district testified and was subjected to certain im- court’s impeachment ruling deprived him

000016 U.S. v. MITCHELL 581 Cite as 914 F.3d 581 (8th Cir. 2019) of the ‘‘guiding hand of counsel’’ by undermining his attorney’s ability to make in- UNITED STATES of America, formed and independent decisions about Plaintiff - Appellee the best trial strategy, including whether Books should take the stand in his own v. defense. Id. at 612, 92 S.Ct. 1891. But Kehinda MITCHELL, Defendant - Brooks provides no refuge, for there the Appellant Supreme Court considered a state statute that required a defendant, if he chose to No. 18-1600 put on a defense at trial, to be the first defense witness to testify, forcing a United States Court of Appeals, preemptive decision to take the stand ab- Eighth Circuit. sent ‘‘a full survey of all the case.’’ Id. at Submitted: November 12, 2018 608, 92 S.Ct. 1891. Books, in contrast, faced only the uncertainty that often ac- Filed: January 23, 2019 companies an unfavorable (and perhaps Background: Defendant pled guilty in the even incorrect) pretrial ruling on the scope United States District Court for the East- of impeachment. Whatever limitations this ern District of Missouri, Ronnie L. White, may have imposed on the strategic choices to conspiracy to commit offenses against of Books’s defense, they were far afield the United States, interstate transporta- from the extreme circumstances defense tion of a stolen vehicle, and fraudulent use counsel confronted in Brooks. of access devices, and sentenced defendant Finally, we reject Books’s invitation to based on a two-level sophisticated-means overturn his conviction on the basis of enhancement to 41 months’ imprisonment, cumulative error. We have reviewed the which was the high end of the guideline record carefully and cannot get anywhere range, to be followed by three years of near concluding that there are ‘‘multiple supervised release. Defendant appealed errors [that] so infected the jury’s deliber- sentence. ation that they denied the petitioner a Holdings: The Court of Appeals, Erick- fundamentally fair trial.’’ United States v. son, Circuit Judge, held that: Allen, 269 F.3d 842, 847 (7th Cir.2001). The bottom line is that Books’s cumulative (1) sufficient evidence supported district error argument cannot overcome the over- court’s finding that repetitive and coor- whelming evidence presented against him dinated conduct amounted to a sophis- at trial. ticated scheme as would warrant a two-level sophisticated-means sentence For these reasons, we AFFIRM. enhancement; (2) sentence was procedurally reasonable; (3) sentencing court did not engage in impermissible double counting; and , (4) defendant failed to overcome the presumption of reasonableness afforded to within-guidelines sentence. Affirmed.

000017 1030 919 FEDERAL REPORTER, 3d SERIES contention, after conceding that neither the policy nor any state statute or decision UNITED STATES of America, said that a switch from monthly to quar- Plaintiff-Appellee, terly premium collection would extend the v. grace period. (Recall that Charles did not pay the premium for either July or August Alandous BRIGGS, Defendant- and died on September 10, which made it Appellant. look like he was well over 31 days in No. 18-1415 arrears.) The district judge concluded that the lack of language in the policy or state United States Court of Appeals, law about how to handle an unpaid month- Seventh Circuit. ly premium, followed by a demand for a quarterly premium, made it improper to Argued November 27, 2018 apply the label ‘‘vexatious and unreason- Decided March 27, 2019 able’’ to the insurer’s decision to litigate Background: Defendant entered a guilty rather than pay on demand. 243 F. Supp. plea in the United States District Court 3d at 1006–07. That is an objective analy- for the Southern District of Indiana, No. sis—it turns on the events in the world, 1:17-cr-00139-TWP-TAB-1, Tanya Walton and on the (lack of) applicable law, not on Pratt, J., to being a felon in possession of a the contents of anyone’s head. firearm, and at sentencing defendant’s of- This means that an award under § 5/155 fense level under Sentencing Guidelines could be justified only by Jackson’s con- was enhanced based on possessing fire- duct during the litigation. For the reasons arms in connection with another felony, we have already given, federal rather than i.e., felony possession of cocaine. Defen- state law governs how federal litigation is dant appealed. conducted, plus when (and who) may be Holding: The Court of Appeals, Barrett, penalized for misconduct. As we have re- Circuit Judge, held that determination that jected Cooke’s arguments under federal defendant’s possession of firearms was in law, the award must be reversed. And this connection with felony possession of co- means that we must reject Cooke’s argu- caine was clearly erroneous. ment that § 5/155 entitles her to legal fees Reversed and remanded. incurred in opposing Jackson’s appeals.

REVERSED 1. Sentencing and Punishment O731 Mere contemporaneous possession of a firearm while another felony is being committed is not necessarily sufficient to , support enhancement of the offense level under the Sentencing Guidelines based on possessing a firearm in connection with another felony, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs. U.S.S.G. § 2K2.1(b)(6)(B).

000018 U.S. v. BRIGGS 1031 Cite as 919 F.3d 1030 (7th Cir. 2019)

2. Sentencing and Punishment O980, Barrett, Circuit Judge. 996 Alandous Briggs pleaded guilty to being Determination that defendant’s pos- a felon in possession of a firearm after session of firearms was in connection with officers found drugs and firearms at his another felony, i.e., felony possession of home during a parole visit. At sentencing, cocaine, was clearly erroneous, for pur- the district court applied a four-level en- poses of enhancement of offense level un- hancement for possessing a firearm in con- der Sentencing Guidelines, at sentencing nection with felony possession of drugs. for being a felon in possession of a firearm; But because the district court made essen- district court never made any findings tially no factual findings connecting about how defendant’s felony cocaine pos- Briggs’s firearms to his felony drug possession was connected to his firearms and session, we reverse and remand for resen- instead simply assumed that firearms were tencing. probably connected with drug trafficking in light of combination of cocaine, marijua- I. na, and digital scale being found in defen- In December 2016, Indiana state parole dant’s home, and analyzing whether fire- officers conducted a parole visit at Alan- arms were connected to drug trafficking dous Briggs’s home. After consenting to a was different from analyzing whether fire- search, he admitted that there was mari- arms were connected to possessing small juana (299 grams), cocaine (.45 grams), and quantity of drugs. U.S.S.G. firearms (3 loaded handguns) in the mas- § 2K2.1(b)(6)(B) & cmt. n.14(B). ter bedroom. On a shelf next to the mari- 3. Sentencing and Punishment O731 juana, the officers also found a digital The mere fact that guns and drugs scale. The officers arrested Briggs and are found near each other does not estab- seized his cell phone—which turned out to lish a nexus between them, for purposes of contain pictures and texts confirming that enhancement of offense level under Sen- the guns were his. tencing Guidelines, based on possessing a Briggs was charged with one count of firearm in connection with another felony, being a felon in possession of a firearm. i.e., a felony involving drugs. U.S.S.G. Although the parties did not come to a § 2K2.1(b)(6)(B). plea agreement, Briggs petitioned to enter a plea of guilty and requested a presen- Appeal from the United States District tence investigation report. The probation Court for the Southern District of Indiana, office’s initial report concluded that Briggs Indianapolis Division. No. 1:17-cr-00139- had committed a felony drug offense in TWP-TAB-1—Tanya Walton Pratt, connection with the firearm possession, Judge. which warranted a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (specify- William L. McCoskey, Attorney, Office ing an enhancement for those who ‘‘used of the United States Attorney, Indianapo- or possessed any firearm TTT in connection lis, IN, for Plaintiff-Appellee. with another felony offense’’). Briggs filed Sara J. Varner, Attorney, Indiana Fed- an objection to this enhancement, arguing eral Community Defenders, Inc., Indianap- that his firearm possession was unrelated olis, IN, for Defendant-Appellant. to the drugs found in his home. Before Bauer, Hamilton, and Barrett, The district court conducted a com- Circuit Judges. bined plea and sentencing hearing. After

000019 1032 919 FEDERAL REPORTER, 3d SERIES

accepting his plea, the district court been connected to the second crime. See turned to Briggs’s sentencing objection. U.S.S.G. § 2K2.1 & cmt. n. 14(A) (stating The government claimed that the en- that ‘‘in connection with’’ means that the hancement applied based on two separate firearm ‘‘facilitated, or had the potential of felonies: felony drug possession and felo- facilitating, another felony offense’’). We ny drug trafficking. Briggs again main- have noted before that ‘‘[m]ere contempo- tained that his firearms were unrelated to raneous possession while another felony is the drugs. But the district court held that being committed is not necessarily suffi- the enhancement applied and sentenced cient, and possessing a gun while engaged Briggs to 84 months. in the casual use of drugs might not give Briggs appeals that sentencing decision. rise to the inference that the gun was His sole argument on appeal is that the possessed in connection with the drugs.’’ district court erred by finding that his United States v. LePage, 477 F.3d 485, 489 possession of firearms was connected to (7th Cir. 2007). another felony. [2] The problem here is that the dis- II. trict never made any findings about how As an initial matter, the government Briggs’s felony cocaine possession was claims that the district court found that connected to his firearms. It simply as- the enhancement applied based on both sumed that because the firearms were felony drug possession and felony drug probably connected to drug trafficking (be- trafficking. We disagree. The district court cause of the combination of the cocaine, discussed both felonies at sentencing, but it ultimately concluded that only felony marijuana, and digital scale), they were drug possession triggered the enhance- probably connected to his mere possession ment. It explained that although ‘‘there’s of the cocaine. But that logic doesn’t hold an inference that the defendant may have up. Analyzing whether firearms are con- been involved in some drug distribution, nected to drug trafficking is different from TTT at minim[um], he was possessing analyzing whether they are connected to drugs.’’ (emphasis added). We take this to possessing a small quantity of drugs. See mean that the district court wasn’t decid- id. (explaining that the existence of a dilu- ing whether the enhancement applied be- tion agent, for example, was ‘‘consistent cause of the suspected drug trafficking, with being a dealer and not simply a casual resting its decision instead only on felony user of the drug’’); United States v. Smith, possession, which Briggs admitted. Thus, 535 F.3d 883, 885–86 (8th Cir. 2008) (not- the question that we face on appeal is ing the differences between drug traffick- whether the district court erred in con- ing and drug possession as it relates to the cluding that the enhancement applied in § 2K2.1(b)(6) enhancement). In fact, the connection with Briggs’s felony possession guidelines themselves distinguish between 1 of cocaine. drug trafficking and other offenses like [1] To enhance a defendant’s sentence drug possession. See § 2K2.1 cmt. n. 14(B) for possessing a firearm in connection with (specifying that the enhancement applies another felony, the firearm must have to a ‘‘drug trafficking offense’’ when drug-

1. Although the district court was not clear on felony because he did not have a prior drug this point, only Briggs’s cocaine possession conviction. See id. § 35-48-4-11. So only the constitutes a felony. See IND. CODE § 35-48-4-6. cocaine possession could have triggered the His marijuana possession did not constitute a enhancement.

000020 THOMPSON v. COM’R OF SOCIAL SEC. ADMIN. 1033 Cite as 919 F.3d 1033 (8th Cir. 2019) manufacturing materials are found in prox- findings in this record do not support the imity to firearms). enhancement.’’). Perhaps the district court here thought The sentence is VACATED and the case that the guns emboldened Briggs’s posses- REMANDED for resentencing consistent sion of cocaine. See, e.g., United States v. with this opinion. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (applying the enhancement to a defendant who brought cocaine and a gun onto a , public street because the ‘‘environment suggest[ed] that there was a heightened need for protection and that the firearm Dennis Thomas THOMPSON, emboldened [him]’’). Or maybe it thought Plaintiff - Appellant, that because Briggs had both cocaine and v. marijuana in the house, he simply wanted to protect all of the drugs that he had COMMISSIONER OF SOCIAL SE- there. But the problem is that we don’t CURITY ADMINISTRATION, know what the district court thought. Put Defendant - Appellee. differently, ‘‘[w]e have essentially no fact No. 17-2111 findings at all by the district court relevant United States Court of Appeals, to this issue.’’ United States v. Clinton, Eighth Circuit. 825 F.3d 809, 813 (7th Cir. 2016) (emphasis added). The district court mostly discussed Submitted: October 17, 2018 the drug scale and the amount of marijua- Filed: March 22, 2019 na found in Briggs’s home—but neither of Rehearing and Rehearing En Banc those facts bears directly on Briggs’s cocaine possession. Instead, they go to Denied May 22, 2019* whether he might have been dealing Background: Claimant who was diag- drugs. And the court’s vague suggestion nosed with neurological disorder called that the guns might have been there ‘‘to transverse myelitis and other conditions protect something’’—apparently made in brought action challenging decision of the the context of drug trafficking—wouldn’t Commissioner of Social Security Adminis- be enough to connect the guns to felony tration denying claimant’s application for possession of cocaine even if that had been disability insurance benefits. The United what the court was referring to. States District Court for the District of [3] In short, the mere fact that guns Minnesota, Franklin L. Noel, United and drugs are found near each other States Magistrate Judge, sitting by con- doesn’t establish a nexus between them. sent, granted Commissioner’s motion to See LePage, 477 F.3d at 489. A court must dismiss for lack of jurisdiction. Claimant say more to connect the two. Thus, the appealed. district court clearly erred in applying the Holdings: The Court of Appeals, Colloton, § 2K2.1(b)(6) enhancement because its Circuit Judge, held that: findings do not support a conclusion that Briggs’s firearms were connected to his (1) there were no external obstacles that possession of less than half a gram of prevented a timely filing; cocaine. See Clinton, 825 F.3d at 814 (‘‘We (2) claimant’s ability to secure an exten- do not hold that the enhancement is inap- sion of time and to send a pro se plicable as a matter of law, but the fact appeal and a follow-up letter, albeit to

* Judge Stras did not participate in the consideration or decision of this matter.

000021 CATES v. U.S. 731 Cite as 882 F.3d 731 (7th Cir. 2018) court and remand for proceedings consis- psychological coercion or threats. 18 tent with this opinion. U.S.C.A. § 2241(a)(1). REVERSED and REMANDED See publication Words and Phrases for other judicial constructions and definitions. 2. Criminal Law O1871 , Judicial review of counsel’s performance is deferential; because there are countless ways to provide effective assistance in any given case, the Court of Ap- peals indulges a strong presumption that Ladmarald CATES, Petitioner- counsel’s conduct falls within the wide Appellant. range of reasonable professional assis- v. tance. U.S. Const. Amend. 6. O UNITED STATES of America, 3. Criminal Law 1948 Respondent-Appellee. There is no conceivable strategic reason for a defense lawyer to forgo a chal- No. 16-1778 lenge to a prejudicial jury instruction; a United States Court of Appeals, mistake of law is deficient performance. Seventh Circuit. U.S. Const. Amend. 6. O Argued September 7, 2017 4. Criminal Law 1948 Trial counsel’s failure to object to jury Decided February 20, 2018 instruction on aggravated sexual abuse Background: After his conviction for de- which misstated the law amounted to defi- priving victim of her civil rights under cient performance, as element of ineffec- color of law was upheld on direct appeal, tive assistance claim, in prosecution for 716 F.3d 445, petitioner sought habeas re- depriving victim of her civil rights under lief. The United States District Court for color of law; instruction erroneously per- the Eastern District of Wisconsin, 2016 mitted jury to find that defendant commit- WL 344958, denied relief. Petitioner ap- ted aggravated sexual abuse based on pealed. proof of something less than either physi- Holdings: The Court of Appeals, Sykes, cal force or threat or fear of death or Circuit Judge, held that: serious bodily injury. U.S. Const. Amend. (1) counsel’s failure to object to jury in- 6; 18 U.S.C.A. §§ 242, 2241(a). struction on aggravated sexual abuse 5. Criminal Law O1969 amounted to deficient performance, Appellate counsel’s failure to raise is- and sue of jury instruction on aggravated sexu- (2) that deficient performance prejudiced al abuse which misstated the law amount- petitioner. ed to deficient performance, as element of Reversed and remanded. ineffective assistance claim, in prosecution for depriving victim of her civil rights under color of law; although trial counsel had 1. Sex Offenses O68 forfeited the error, the flaw in the instruc- ‘‘Force’’ under the crime of aggravat- tion, which erroneously permitted jury to ed sexual abuse means physical force, not find that defendant committed aggravated

000022 732 882 FEDERAL REPORTER, 3d SERIES sexual abuse based on proof of something Mel S. Johnson, Attorney, Office of the less than either physical force or threat or United States Attorney, Milwaukee, WI, fear of death or serious bodily injury, was for Respondent–Appellee. clear and obvious under current law, and reasonable probability existed that proper- Before WOOD, Chief Judge, and ly instructed jury would have found the BAUER and SYKES, Circuit Judges. evidence insufficient to prove defendant committed aggravated sexual abuse. U.S. SYKES, Circuit Judge. Const. Amend. 6; 18 U.S.C.A. §§ 242, On a summer day in 2010, Iema Lemons 2241(a). called 911 to report that her neighbors 6. Criminal Law O1948, 1969 were vandalizing her home on Milwaukee’s north side. Officer Ladmarald Cates and Trial and appellate counsel’s deficient his partner responded, but the investiga- performance in failing to object to jury tion went seriously off track. By an odd instruction on aggravated sexual abuse series of events, Cates and Lemons were which misstated the law prejudiced defen- left alone in her home, and the officer dant, and thus amounted to ineffective as- sexually assaulted her. sistance, in prosecution for depriving victim of her civil rights under color of law; Cates was charged with two federal instruction erroneously permitted jury to crimes: (1) depriving Lemons of her civil find that defendant committed aggravated rights under color of law, 18 U.S.C. § 242; sexual abuse based on proof of something and (2) using or carrying a firearm in less than either physical force or threat or relation to that crime, id. § 924(c)(1)(A). fear of death or serious bodily injury, and The civil-rights charge was premised on although victim testified that defendant the sexual assault by a law-enforcement squeezed her neck and pushed her head officer, but the government also alleged and that she feared he would use his ser- that Cates’s conduct amounted to aggra- vice firearm against her, jury specifically vated sexual abuse, id. § 2241(a), which if found that he did not cause bodily injury proven would dramatically increase the and acquitted him of charge of carrying maximum penalty from one year to life in firearm in relation to deprivation of rights prison, § 242. A jury convicted Cates on crime, yet still found that he committed the civil-rights count, acquitted him on the aggravated sexual abuse. U.S. Const. firearm count, and found by special verdict Amend. 6; 18 U.S.C.A. §§ 242, 2241(a). that he committed aggravated sexual abuse. Soon after trial Cates lost confidence in Appeal from the United States District his lawyer, so the judge allowed her to Court for the Eastern District of Wiscon- withdraw and appointed a new attorney. A sin. No. 14-CV-1092—J. P. Stadtmueller, few days before sentencing, the new law- Judge. yer moved to extend the deadline for post- verdict motions, which had expired several Peter W. Henderson, Attorney, Office of months earlier. The judge denied the mo- the Federal Public Defender, Urbana, IL, tion, holding that the lawyer waited too Thomas W. Patton, Attorney, Office of the long to file it and had not shown excusable Federal Public Defender, Peoria, IL, for neglect. Cates was sentenced to 24 years Petitioner–Appellant. in prison.

000023 CATES v. U.S. 733 Cite as 882 F.3d 731 (7th Cir. 2018)

The new lawyer continued to represent I. Background Cates on direct appeal but inexplicably Lemons and Cates have given radically challenged only the denial of his untimely different accounts of the events of July request for more time to file postverdict 2010. Neither has been entirely consistent, motions. We rejected that doomed argument and expressed concern that counsel and the physical evidence and testimony had raised no challenge to Cates’s convic- from other witnesses likewise conflicts. So tion or sentence. United States v. Cates, the jury had to sort through many credibil- 716 F.3d 445, 450–51 (7th Cir. 2013). ity questions. What follows is a brief summary of the key evidence and procedural The case now returns on Cates’s petition history of the case. This is not a compre- for collateral relief under 28 U.S.C. hensive account; it’s just enough back- § 2255. He argues, among other things, ground to understand this appeal. that his trial and appellate counsel were constitutionally ineffective for failing to At about 1 p.m. on July 16, 2010, Lem- challenge the jury instruction on aggravat- ons called 911 to report that a neighbor- ed sexual abuse. The judge rejected that hood dispute had turned violent. She had claim, finding no error in the instruction. an argument with her neighbors earlier in [1] We reverse. As relevant here, ag- the day, and the neighbors retaliated by gravated sexual abuse is knowingly caus- throwing bricks and bottles through her ing another person to engage in a sex act windows. Officer Cates and his partner, by ‘‘using force against that other person.’’ Officer Alvin Hannah, arrived at her home, § 2241(a)(1). At the government’s request, a duplex on Milwaukee’s north side where the judge instructed the jury that ‘‘force’’ she lived with her 15-year-old brother La- includes not just physical force but also Quan Lemons, her boyfriend Jermaine psychological coercion and may even be Ford, and her two children. inferred from a disparity in size between When the officers arrived, they secured the defendant and victim. That contradicts the home and discovered that LaQuan was both the statutory text and our precedent. wanted on an outstanding juvenile arrest ‘‘Force’’ under § 2241(a)(1) means physi- warrant. Lemons, who was her brother’s cal force, not psychological coercion or guardian, insisted that the warrant was threats. United States v. Boyles, 57 F.3d mistaken. She called LaQuan’s social work- 535, 544 (7th Cir. 1995). The jury instruc- er to sort things out, but he didn’t answer. tion relaxed the government’s burden and She left a message asking him to call her permitted the jurors to find force even if back. they concluded that Cates only used psychological coercion or an implied threat In the meantime the officers took La- based on his size or status as a police Quan into custody and placed him in the officer. Cates’s trial and appellate counsel back of their squad. Officer Hannah stayed made key legal errors in not challenging there with him while Cates returned to the the flawed instruction. house. Lemons sent her children away And the errors were prejudicial. There with Ford’s sister, ostensibly because of is a reasonable probability that a properly the broken glass in the house. (There’s instructed jury would find the evidence conflicting evidence about who suggested insufficient to prove aggravated sexual this measure.) She then sent Ford to the abuse. That, in turn, would cap Cates’s store to buy cigarettes. Lemons and Cates maximum penalty at one year. were now alone in the house.

000024 734 882 FEDERAL REPORTER, 3d SERIES

Lemons testified that Cates demanded and approached the house. The evidence is oral sex. (Their stories conflict about inconsistent about whether Lemons told whether the sexual encounter began right one or both of them that she had been away or after Ford returned with the ciga- raped, either at this point or later. The rettes and was sent back to the store to troublesome neighbors then emerged from buy bottled water, and also on the key across the street, and Lemons began to question whether the encounter was con- scream at them. (She denied this.) To calm sensual.) Lemons testified that she didn’t things down, Officer Hannah escorted consent to perform oral sex but she also Lemons and LaQuan back into the house, didn’t resist because she was afraid. Cates where Lemons began yelling at him about was bigger and stronger than she, and if why he wasn’t arresting the neighbors. she tried to fight him, she would lose. The situation became increasingly volatile, Cates also had his service firearm and and Lemons and LaQuan hurled expletives could kill her if she tried to resist. Finally, at the officer. In the midst of this escalat- she testified that Cates’s position of au- ing argument, LaQuan suddenly fled the thority as a police officer made her feel as house. Hannah gave chase and attempted though she had no choice but to comply. to rearrest him. Chaos ensued outside. She explained: ‘‘You have to listen to what LaQuan resisted arrest, and Officer the police say,’’ and it’s not a ‘‘smart idea’’ Hannah struggled to physically subdue to fight them. She did as he demanded. him. The officer’s use of force against her When Ford returned from his errand, brother enraged Lemons, and she kicked Cates gave him $10 and told him to go Hannah twice in the back. (She denied this back to the store to buy water for him and too.) Cates then returned to the scene. Officer Hannah. Ford again left the house, LaQuan, still resisting, picked up a brick, and Lemons was once again alone with which prompted Hannah to summon back- Cates. After several more minutes of oral up. A swarm of officers responded and sex in the bathroom, Cates demanded in- finally gained control over the situation. tercourse. Lemons was too afraid to resist. They arrested LaQuan, Lemons, Velez, She testified that Cates grabbed her by and Brooks. Lemons remained agitated, so the neck, pushed her head toward the sink, an officer had to drag her to the paddy and raped her. When he was finished, wagon. As she was being taken into custo- Lemons vomited on the floor of the dining dy, she protested in a loud voice that she room. (According to Ford’s account, how- had been raped. The officers did not take ever, Lemons threw up on the dining-room her seriously. floor before she made the 911 call.) At the police station, Lemons continued As Cates and Lemons emerged from the to say that she had been raped and vomit- house, LaQuan’s social worker called back. ed several times. She was transported to Lemons answered and handed the phone the hospital, where she repeated her rape to Hannah, who was still in the squad with charge to a nurse. The nurse examined her LaQuan. At some point Officer Hannah and noted that she had bloodshot eyes, released LaQuan from the squad, and pain and swelling in her neck, and had Cates walked down the street to use the vomited, all potential indications of having bathroom at a nearby restaurant, behavior been choked. But she had no signs of that Hannah found to be odd. Two of vaginal trauma or injury. Lemons’s friends—Kandice Velez and The FBI and Milwaukee police opened Kristi Brooks—were in the neighborhood an investigation into Lemons’s allegations.

000025 CATES v. U.S. 735 Cite as 882 F.3d 731 (7th Cir. 2018)

Cates initially denied that he had any sex- ‘‘widespread’’ professional misconduct. Of- ual contact with her, but his story changed fice of Lawyer Regulation v. Boyle, 356 several times and he eventually admitted Wis.2d 331, 850 N.W.2d 201, 206 (2014). both the oral sex and intercourse. He The judge allowed the attorney to with- maintained that the entire sexual encoun- draw, adjourned the sentencing hearing, ter was consensual. Stains on Cates’s uni- and ordered new counsel appointed. form and boxer shorts were tested and found to contain Lemons’s DNA. Just days before the rescheduled sentencing hearing, Cates’s new attorney In September 2011 a grand jury issued moved to enlarge the time to file postver- an indictment charging Cates with two dict motions under Rules 29 and 33 of the federal crimes. Count One alleged that he Federal Rules of Criminal Procedure. The deprived Lemons of her civil rights under deadline had expired five months earlier, color of law in violation of § 242 by sexual- and new counsel had been on the case for ly assaulting her. Count Two alleged that two months before he asked the judge to he used or carried a firearm in furtherance reopen the time. The judge denied the of that crime, contrary to § 924(c)(1)(A). motion, finding that the attorney had de- The civil-rights crime carries a prison layed too long and had not shown excusa- term of up to one year, but the maximum ble neglect. Cates, 716 F.3d at 448–49. penalty increases to ten years if the viola- When things finally got back on track, the tion results in bodily injury. § 242. If the judge rescheduled the sentencing hearing offense involves aggravated sexual abuse, and imposed a sentence of 24 years in the maximum penalty is life in prison. Id. prison. The government alleged both aggravators, and the prosecutor submitted jury instruc- Cates’s new counsel stayed with the case tions and special-verdict questions on both through direct appeal but challenged only bodily injury and aggravated sexual as- the judge’s denial of his untimely request sault. Without objection from Cates’s at- for more time to file posttrial motions. torney, the judge accepted the govern- That argument was clearly a loser; we ment’s proposed instructions and verdict affirmed, finding no abuse of discretion. Id. form. at 449–50. We also expressed our concern that Cates’s attorney had not challenged The jury returned a split verdict, finding ‘‘any aspect of [the] conviction or sentence Cates guilty on the civil-rights count and not guilty on the firearm count. The jury on appeal.’’ Id. at 450. also found by special verdict that Cates did After his ill-fated direct appeal, Cates not cause bodily injury but did commit filed a pro se petition to vacate his convic- aggravated sexual assault. As we’ve noted, tion and sentence under § 2255. He raised the latter finding raised the maximum pen- 19 claims, including several based on inef- alty from one year to life in prison. fective assistance of counsel. One such When the sentencing date arrived, Cates claim was premised on his trial attorney’s announced that he was dissatisfied with his failure to challenge the jury instruction retained counsel. Indeed, two months earli- defining aggravated sexual abuse (and by er we removed the attorney from our bar extension, his appellate attorney’s failure for neglecting a client in an unrelated case. to raise the instructional error on appeal). See In re Boyle-Saxton, 668 F.3d 471 (7th The judge denied relief across the board. Cir. 2012). The Wisconsin Supreme Court As relevant here, he concluded that the later revoked the attorney’s law license for challenged jury instruction was correct.

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The judge then certified the jury-instruc- cient performance. See Vinyard v. United tion claim for appeal.1 States, 804 F.3d 1218, 1225 (7th Cir. 2015) (citing Hinton v. Alabama, ––– U.S. ––––, II. Discussion 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 [2] Cates asks us to vacate his convic- (2014) ). And because the instruction at tion and sentence based on a violation of issue here concerned a key sentencing fac- his Sixth Amendment right to the effective tor that would significantly elevate the assistance of counsel for his defense. U.S. maximum prison term, Strickland preju- CONST. amend. VI; Strickland v. Washing- dice is established if there is a reasonable ton, 466 U.S. 668, 104 S.Ct. 2052, 80 probability that a properly instructed jury L.Ed.2d 674 (1984). To prevail, Cates must would have reached a different result. show that his lawyer’s performance was These are pure questions of law, so our deficient and that he suffered prejudice as review is de novo. See United States v. a result. Strickland, 466 U.S. at 687, 104 Bloom, 846 F.3d 243, 255 (7th Cir. 2017). S.Ct. 2052; Faucett v. United States, 872 F.3d 506, 509 (7th Cir. 2017). Judicial re- We begin with the statutory definition of view of counsel’s performance is deferen- aggravated sexual abuse. A person com- tial. Because ‘‘[t]here are countless ways to mits the crime of aggravated sexual abuse provide effective assistance in any given if he ‘‘knowingly causes another person to case,’’ we ‘‘indulge a strong presumption engage in a sexual act—(1) by using force that counsel’s conduct falls within the wide against that other person; or (2) by threat- range of reasonable professional assis- ening or placing that other person in fear tance.’’ Strickland, 466 U.S. at 689, 104 that any person will be subjected to death, S.Ct. 2052. Cates has the burden to show serious bodily injury, or kidnapping.’’ that his lawyer’s performance fell below an § 2241(a). This text notably contrasts with objective standard of reasonableness.2 Id. the statute defining the crime of sexual at 688, 104 S.Ct. 2052; Faucett, 872 F.3d at abuse in its nonaggravated form: A person 509. commits sexual abuse if he ‘‘knowingly causes another person to engage in a sexu- [3] Cates’s Strickland claim rests on al act by threatening or placing that other an alleged instructional error. If the jury person in fear (other than by threatening instruction on aggravated sexual assault or placing that other person in fear that misstated the law and the error was not any person will be subjected to death, harmless, then the first part of the Strick- serious bodily injury, or kidnapping).’’ 18 land standard has been met. There is no U.S.C. § 2242(1). conceivable strategic reason for a defense lawyer to forgo a challenge to a prejudicial Note the carve-out language in the lat- jury instruction; a mistake of law is defi- ter statute, which reinforces the difference

1. The judge actually certified eight claims for counsel in the section of his pro se § 2255 appeal. We appointed the Federal Defender’s petition pertaining to the mishandling of the Office and eventually narrowed the scope of jury instruction. The district judge understood the appeal to the jury-instruction claim and Cates to be making an ineffective-assistance two others. Because we’re granting relief on claim relating to the jury instruction, denied the jury-instruction claim, we have no need to it, and issued a certificate of appealability. We elaborate on the others. modified the certificate but continued to au- 2. The government argues in passing that thorize an appeal of this claim. There was no Cates waived this claim by not clearly alleging waiver. ineffective assistance of trial and appellate

000027 CATES v. U.S. 737 Cite as 882 F.3d 731 (7th Cir. 2018)

between the basic sexual-abuse crime and harm sufficient to coerce or compel sub- the aggravated form. The crime of sexual mission by the victim.’’ Finally, the in- abuse under § 2242(1) encompasses the struction stated that ‘‘[f]orce may also be use of any kind of threat or other fear- implied from a disparity in coercive power inducing coercion to overcome the victim’s or in size between the defendant and will. But for aggravated sexual abuse un- [Lemons].’’ der § 2241(a), the jury must find that the defendant (1) actually used force against By defining ‘‘force’’ in this expansive the victim or (2) that he made a specific way, the jury instruction flatly contradict- kind of threat—i.e., that he threatened or ed the text of § 2241(a)(1) and our decision placed the victim in fear of death, serious in Boyles. The instruction plainly misstat- bodily injury, or kidnapping. ed the law by wrongly suggesting that We long ago held that the term ‘‘force’’ force does not mean physical force. The in § 2241(a)(1) means physical force. jury was told that threats and other non- Boyles, 57 F.3d at 544. Boyles describes physical forms of coercion—including a ‘‘force’’ as ‘‘the exertion of physical power mere disparity in coercive power or size— upon another to overcome that individual’s could suffice to establish force. That erro- will to resist.’’ Id. (emphasis added). neously conflated the distinction between Threats and fear, on the other hand, ‘‘are ‘‘force’’ and ‘‘fear,’’ relaxing the govern- not classified as physical power, but rather ment’s burden. The instruction permitted overcoming one’s will to resist through the jurors to find that Cates committed mental and emotional power.’’ Id. In other aggravated sexual abuse based on proof of words, psychological coercion is not something less than either physical force enough for a finding of ‘‘force’’ under or a threat or fear of death or serious § 2241(a). Rather, the jury must find that bodily injury. the defendant used actual physical force. Alternatively, a jury may find a defen- [4, 5] It was a serious mistake for trial dant guilty of aggravated sexual abuse counsel not to object to this badly flawed based on proof of a particularly grievous jury instruction. Appellate counsel, more- kind of threat or fear—a threat or fear of over, should have raised the instructional death, serious bodily injury, or kidnapping. error on appeal. The argument he did § 2241(a)(2); see also United States v. raise was certain to fail. And although trial Henzel, 668 F.3d 972, 977 (7th Cir. 2012) counsel had forfeited the error and thus (explaining the distinction between ‘‘force’’ review would have been limited to plain and ‘‘fear’’ in this context). Threats or fear- error, the flaw in the instruction was both inducing coercion of a lesser nature can obvious and clear under current law. See support a conviction for the crime of sexu- United States v. Natale, 719 F.3d 719, 731 al abuse under § 2242(1) but not aggravat- (7th Cir. 2013) (‘‘Plain error requires obvi- ed sexual abuse under § 2241(a)(2). ous error that is clear under current law.’’) Here the jury instruction on aggravated (internal quotation marks omitted). Final- sexual abuse told the jurors that ‘‘[t]o es- ly, the last step in plain-error analysis is tablish force, the government need not satisfied here. The instructional error af- demonstrate that the defendant used actu- fected Cates’s substantial rights, see id., al violence.’’ The instruction continued: for the same reasons that the error was ‘‘The requirement of force may be satisfied prejudicial under the Strickland standard. by a showing of TTT the use of threat of We turn to that inquiry now.

000028 738 882 FEDERAL REPORTER, 3d SERIES

[6] Strickland prejudice is established bility that a properly instructed jury would if there is a reasonable probability that a find the evidence insufficient on this point. properly instructed jury would have found In closing, it’s worth repeating that the the evidence insufficient to prove that errors by trial and appellate counsel meant Cates committed aggravated sexual abuse. the difference between a sentence capped That standard is met here. True, Lemons at one year and a maximum penalty of life testified that Cates squeezed her neck and in prison. We have little difficulty conclud- pushed her head toward a sink; that testi- ing that the errors by Cates’s counsel prej- mony, if credited by a properly instructed udiced his case. Relief under § 2255 is jury, could support a finding of physical warranted. We reverse and remand for force within the meaning of § 2241(a)(1). further proceedings consistent with this Lemons also testified that Cates carried opinion. his service firearm and she was afraid that REVERSED and REMANDED. he would use it against her if she resisted. That testimony could support a finding of fear of death or serious bodily injury under § 2241(a)(2), which is an alternative , basis for a finding of aggravated sexual abuse. Two circumstances give us substantial Spencer RILEY, Petitioner-Appellant, reason to doubt that the special verdict rested on either of these findings. First, v. the jury specifically found that Cates did Victor CALLOWAY, Respondent- not cause bodily injury, which makes it Appellee. unlikely that the jurors believed that he No. 17-1831 used physical force against Lemons. Sec- ond, the jury acquitted Cates on the fire- United States Court of Appeals, arm charge, which makes it unlikely that Seventh Circuit. the jurors believed that he placed Lemons in fear of being shot. Argued November 15, 2017 Decided February 20, 2018 Lemons also testified that she did not resist Cates’s demands because he was Background: Petitioner filed petition for bigger and stronger and was a police offi- writ of habeas corpus, challenging on collateral estoppel grounds his state court cer. That’s clearly insufficient to support a conviction for being an armed habitual finding of force under § 2241(a)(1). It’s criminal after a jury acquitted him of first- possible that a properly instructed jury degree murder. The United States District could find this testimony sufficient to sup- Court for the Northern District of Illinois, port a ‘‘threat’’ or ‘‘fear’’ theory of the Andrea R. Wood, J., 2017 WL 1178148, crime (though we are skeptical that there denied the petition and granted a certifi- would be many cases in which a mere cate of appealability. Petitioner appealed. disparity in size sufficed to support a conviction). But the alternative statutory basis Holding: The Court of Appeals, Manion, for aggravated sexual abuse requires proof Circuit Judge, held that writ of habeas of a threat or fear of death or serious corpus was not available. bodily injury. There’s a reasonable proba- Affirmed.

000029 United States v. Clark, 935 F.3d 558 (2019)

Scudder, Circuit Judge, filed opinion dissenting in part. 935 F.3d 558 United States Court of Appeals, Seventh Circuit. West Headnotes (35) UNITED STATES of America, Plaintiff-Appellee, v. Michael CLARK, Defendant-Appellant. [1] Searches and Seizures Impartial magistrate requirement No. 18-2604 Fourth Amendment’s strong preference for use | of search warrants calls for probable cause Argued May 22, 2019 determinations by a neutral and detached | magistrate, as opposed to officers engaged in Decided August 15, 2019 the often competitive enterprise of ferreting out crime. U.S. Const. Amend. 4. Synopsis Background: Defendant was convicted, in the United States Cases that cite this headnote District Court for the Western District of Wisconsin. No. 3:17- cr-53-JDP-1, James D. Peterson, J., 2018 WL 6358203, of federal narcotics offense, and he appealed. [2] Searches and Seizures Probable or Reasonable Cause Application for search warrant must provide the magistrate with a substantial basis for Holdings: The Court of Appeals, Hamilton, Circuit Judge, determining the existence of probable cause. held that: U.S. Const. Amend. 4.

[1] credibility of informant who advised police that he had Cases that cite this headnote driven third party to hotel parking lot to purchase heroin from a black male called “Big Mike” was material, for Franks purposes, to probable cause determination; [3] Searches and Seizures False, inaccurate or perjured information; [2] while applying officer's omission, from search warrant disclosure application, of all information regarding a minimally Ability of neutral and detached magistrate corroborated police informant's credibility did not require to determine probable cause for issuance of an inference of recklessness, it entitled defendant to Franks search warrant depends upon accuracy of the hearing; information that police submit, and thus a search warrant is not valid if the police obtain it [3] motion to suppress evidence was properly denied without by deliberately or recklessly presenting false, hearing; material information, or by omitting material information from the affidavit provided to the [4] even if district court erred, in not treating federal narcotics issuing magistrate. U.S. Const. Amend. 4. defendant's subsequent Illinois drug offense as “relevant Cases that cite this headnote conduct” at sentencing, error was not plain or obvious; and

[5] defendant waived any objection to supervised release [4] Searches and Seizures condition imposed by district court. Hearing; in camera inspection To invalidate a search warrant based on the materially false information included in Affirmed in part, reversed in part, vacated in part, and warrant application, or based on the material remanded. information that was omitted, defendant must prove, at so-called Franks hearing, either falsity

or recklessness, as well as materiality, by a preponderance of the evidence. U.S. Const. Cases that cite this headnote Amend. 4. [9] Searches and Seizures Cases that cite this headnote Information from others in general Probable cause can be shown based on totality [5] Searches and Seizures of the circumstances, where search warrant Hearing; in camera inspection affidavit is based primarily on tip from Defendant does not need to prove a Franks informant. U.S. Const. Amend. 4. violation just to obtain a Franks hearing. U.S. Const. Amend. 4. Cases that cite this headnote

Cases that cite this headnote [10] Searches and Seizures Reliability or credibility; corroboration [6] Searches and Seizures Five factors are of particular relevance in Hearing; in camera inspection deciding whether informant's tip can provide To obtain a Franks hearing, defendant needs to basis for issuance of search warrant: (1) level make only a substantial preliminary showing: (1) of detail that informant provided; (2) extent that the warrant application contained a material to which informant’s information is based on falsity or omission that would alter the issuing his or her own first-hand observations; (3) judge’s probable cause determination, and (2) degree to which the police have corroborated that the affiant included the material falsity the informant’s information; (4) the time elapsed or omitted information intentionally or with a between the events reported and the warrant reckless disregard for the truth. U.S. Const. application; (5) and whether the informant Amend. 4. appeared or testified before the magistrate. U.S. Const. Amend. 4. Cases that cite this headnote Cases that cite this headnote

[7] Searches and Seizures Hearing; in camera inspection [11] Searches and Seizures Proof by a preponderance of the evidence is not False, inaccurate or perjured information; required until the Franks hearing itself, and is not disclosure a prerequisite for obtaining such a hearing. U.S. Information omitted from search warrant Const. Amend. 4. application is “material” when its omission affects the probable cause determination. U.S. Cases that cite this headnote Const. Amend. 4.

Cases that cite this headnote [8] Criminal Law Review De Novo Criminal Law [12] Controlled Substances Search and arrest Reliability; corroboration Court of Appeals reviews district court's denial Searches and Seizures of request for a Franks hearing for clear error, but Reliability or credibility; corroboration any legal determinations that factored into that In performing “probable cause” inquiry, to ruling are reviewed de novo. U.S. Const. Amend. decide whether to grant application for search 4. warrant based, in part, on information provided by police informant, courts must keep in mind

that a search warrant for a home, business, or regarding informant's credibility from probable even a hotel room can authorize highly intrusive cause affidavit was material omission. U.S. and even destructive actions by police, and that Const. Amend. 4. informants, especially in narcotics cases, can be unreliable and motivated by rivalries or revenge. Cases that cite this headnote U.S. Const. Amend. 4. [16] Searches and Seizures Cases that cite this headnote Hearing; in camera inspection To obtain a Franks hearing based on the [13] Searches and Seizures applying officer's material omissions from Hearing; in camera inspection search warrant application, defendant needed to Franks hearing is not required every time offer direct evidence of officer’s state of mind some substantial adverse information about or circumstantial evidence that officer had a an informant’s credibility is omitted from a subjective intent to deceive based on the nature probable cause affidavit. U.S. Const. Amend. 4. of his omissions. U.S. Const. Amend. 4.

Cases that cite this headnote Cases that cite this headnote

[14] Searches and Seizures [17] Searches and Seizures False, inaccurate or perjured information; Search under warrant disclosure Searches and Seizures Searches and Seizures Questions of law or fact Reliability or credibility; corroboration Credibility omissions themselves, even in Generally, information about an informant’s absence of more direct evidence of the applying credibility or potential bias is crucial when officer’s state of mind, provide sufficient a search warrant is sought based upon an circumstantial evidence to support a reasonable, informant’s tip; however, when police have and thus “permissible,” inference of officer's sufficiently corroborated informant’s tip, the reckless disregard for the truth when applying omission of facts pertaining to the informant’s for search warrant, but do not “require” courts credibility from probable cause affidavit may not to infer recklessness; such omissions are matters be material. U.S. Const. Amend. 4. for trier of fact to weigh, just as when witness testifies incorrectly or falsely about one or a few Cases that cite this headnote matters, and the trier of fact must weigh the rest of witness’ testimony. U.S. Const. Amend. 4. [15] Controlled Substances Cases that cite this headnote Reliability; corroboration Credibility of informant who advised police that he had driven third party to hotel parking lot [18] Searches and Seizures to purchase heroin from a black male called Hearing; in camera inspection “Big Mike” was material, for Franks purposes, While applying officer's omission, from search to whether informant's tip, together with police warrant application, of all information regarding officers' corroboration that there was black male a minimally corroborated police informant's staying in hotel room for single night who credibility did not require an inference of was only guest in hotel who had paid for recklessness, it entitled defendant to Franks his room entirely with cash, provided judge hearing to determine whether these material with probable cause to issue warrant for search omissions were either deliberate or reckless. U.S. of hotel room; level of police corroboration Const. Amend. 4. was weak, so that omission of all information

Cases that cite this headnote Cases that cite this headnote

[19] Criminal Law [23] Criminal Law Materiality and probable effect of Right to, and necessity of, hearing or voir information in general dire examination; summary disposition Government-suppressed evidence is “material,” Defendant who requests a suppression hearing for Brady purposes, if there is a reasonable must present definite, specific, detailed, and probability that, had the evidence been disclosed, nonconjectural facts demonstrating that there is a the result of the proceeding would have been disputed material issue of fact; reliance on vague, different. conclusory allegations is insufficient.

Cases that cite this headnote Cases that cite this headnote

[20] Criminal Law [24] Criminal Law Impeaching evidence Presumptions and burden of proof Strong, non-cumulative evidence that Burden is on defendant moving to suppress undermines the credibility of important evidence to support his motion. government witness has to be regarded as “material,” for Brady purposes. Cases that cite this headnote

Cases that cite this headnote [25] Criminal Law Sentencing and Punishment [21] Criminal Law Simply by failing to object when government Right to, and necessity of, hearing or voir asked that his sentence for federal narcotics dire examination; summary disposition offense should run consecutively to his Illinois Motion to suppress evidence discovered during sentence, defendant did not waive argument that a warranted search of hotel room, on ground that his subsequent drug offense in Illinois conviction photograph taken by police during the search should be treated as “relevant conduct,” and that showed a digital clock on nightstand with a time his sentence for current federal offense should display at least 25 minutes before search warrant thus run concurrently with the sentence that he was issued, was properly denied without hearing, received in Illinois; defendant had no strategic where there was no assertion by defendant that reason to forgo this sentencing argument, and time displayed on digital clock was correct and thus his failure to object was in nature merely that search occurred at time indicated, and where of forfeiture, which did not foreclose relief on metadata from digital camera used by police “plain error” review. showed that pictures were actually taken well after issuance of search warrant. U.S. Const. Cases that cite this headnote Amend. 4. [26] Estoppel Cases that cite this headnote Nature and elements of waiver “Waiver” is the intentional relinquishment of a [22] Searches and Seizures known right. Time of Execution Police may not rely on a search warrant that Cases that cite this headnote has not yet been approved by judge. U.S. Const. Amend. 4. [27] Estoppel

Nature and elements of waiver In assessing whether uncharged offenses are part While waiver is the intentional relinquishment of of the same course of conduct as the offense a known right, forfeiture occurs when a criminal of conviction, in order to determine whether the defendant negligently fails to assert a right in uncharged offenses qualify as “relevant conduct” timely fashion. for sentencing purposes, courts focus on whether the government has demonstrated a significant Cases that cite this headnote similarity, regularity, and temporal proximity. U.S.S.G. § 1B1.3.

[28] Criminal Law Cases that cite this headnote Presentation of questions in general Waiver principles should be construed liberally [32] Sentencing and Punishment in favor of criminal defendant so as not to result Relevant Conduct in a waiver, especially where the defendant has no strategic reason to waive argument. In deciding whether uncharged criminal conduct is “relevant conduct,” for sentencing purposes, Cases that cite this headnote courts consider whether the uncharged and charged offenses involve the same victims, stem from the same underlying conduct, or are in fact [29] Criminal Law similar offenses. U.S.S.G. § 1B1.3. Necessity of Objections in General “Plain error” review allows reversal where: (1) Cases that cite this headnote there was an error; (2) the error was plain; (3) the error affected the substantial rights of defendant; [33] Sentencing and Punishment and (4) the error seriously impacted the fairness, Course of conduct integrity, or public reputation of the proceedings. Fact that a defendant commits a certain type of Cases that cite this headnote offense on multiple occasions does not inevitably mean that each separate offense is part of the same course of conduct and thus is “relevant [30] Criminal Law conduct,” for sentencing purposes. U.S.S.G. § Sentencing and Punishment 1B1.3. Even if district court erred, in not treating federal narcotics defendant's subsequent Illinois drug Cases that cite this headnote offense as “relevant conduct” at sentencing, and in not imposing sentence for current federal [34] Criminal Law offense to run concurrently with that imposed Necessity of Objections in General for Illinois drug offense, error was not plain or obvious, as required to be redressable on “plain Error is “plain,” as required to be redressable error” review, given that the offenses involved on “plain error” review, if the law at the time different buyers, in different cities, in different of appellate review shows clearly that it was an types of quantities, months apart, and with an error. intervening arrest for the offense underlying the Cases that cite this headnote sentence imposed by district court. U.S.S.G. §§ 1B1.3, 5G1.3(b). [35] Criminal Law Cases that cite this headnote Estoppel or Waiver Defendant waived any objection to supervised [31] Sentencing and Punishment release condition imposed by district court in Course of conduct sentencing him for federal narcotics offense; defendant had prior notice of the proposed

conditions, including the condition that he belatedly sought to challenge, and had a I. The Need for a Franks Hearing meaningful opportunity to object in district court, [1] [2] The Fourth Amendment’s strong preference for the but his attorney told the judge that the proposed use of search warrants calls for probable cause determinations conditions were acceptable. by a “neutral and detached magistrate” as opposed to “officer[s] engaged in the often competitive enterprise of Cases that cite this headnote ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The application for a warrant “must provide the magistrate with a substantial basis for determining the existence of probable cause.” Illinois v. *562 Appeal from the United States District Court for Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 the Western District of Wisconsin. No. 3:17-cr-53-JDP-1 — (1983). James D. Peterson, Judge. [3] [4] The ability of the neutral and detached magistrate Attorneys and Law Firms to determine probable cause depends on the accuracy of the information the police submit. “[A] search warrant is not Julie Suzanne Pfluger, Attorney, Office of the United States valid if the police obtain it by deliberately or recklessly Attorney, Madison, WI, for Plaintiff-Appellee. presenting false, material information,” or by omitting Daniel J. Hillis, Attorney, Office of the Federal Public material information from the affidavit provided to the issuing Defender, Springfield, IL, Thomas W. Patton, Attorney, judge. United States v. McMurtrey, 704 F.3d 502, 508 (7th Cir. Office of the Federal Public Defender, Peoria, IL, for 2013), citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 Defendant-Appellant. S.Ct. 2674, 57 L.Ed.2d 667 (1978). To invalidate a warrant on this basis, a defendant at a so-called Franks hearing must Before Bauer, Hamilton, and Scudder, Circuit Judges. prove by a preponderance of the evidence either falsity or recklessness, as well as materiality. McMurtrey, 704 F.3d at Opinion 509.

Hamilton, Circuit Judge. [5] [6] [7] Merely to obtain a Franks hearing, however, Defendant-appellant Michael Clark was convicted of a defendant does not need to prove the Franks violation. A possessing a mixture containing fentanyl in violation of 21 defendant must only make a substantial preliminary showing U.S.C. § 841(a)(1). Clark had been found in a hotel room with (1) that the warrant application contained a material falsity more than 80 grams of a mixture of heroin and fentanyl, a or omission that would alter the issuing judge’s probable digital scale, and cellophane bags. He does not appeal any cause determination, and (2) that the affiant included the aspect of his jury trial, but he challenges the denial of his material falsity or omitted information intentionally or with a motion for a Franks hearing challenging the issuance of the reckless disregard for the truth. United States v. Glover, 755 search warrant for the hotel room. He *563 also challenges F.3d 811, 820 (7th Cir. 2014); see also, e.g., United States v. the denial of his motion to suppress without an evidentiary Hancock, 844 F.3d 702, 708 (7th Cir. 2016); United States v. hearing. And he challenges two aspects of his sentence: the Mullins, 803 F.3d 858, 861–62 (7th Cir. 2015); United States guideline treatment of his conviction for drug distribution v. Robinson, 546 F.3d 884, 887–88 (7th Cir. 2008). “Proof by a that occurred in Illinois seven months after his Wisconsin preponderance of the evidence is not required until the Franks arrest and one condition of supervised release. We vacate hearing itself.” Glover, 755 F.3d at 820. Clark’s conviction and remand for an evidentiary hearing on his Franks challenge. We affirm on the denial of his motion [8] Clark asserted in the district court that the police to suppress without a hearing. We also affirm on the guideline investigator who applied for the search warrant of the hotel issue and determine that the supervised release challenge was room deliberately or recklessly omitted critical information waived. We address in Part I the need for a Franks hearing and affecting the credibility of the unidentified informant who in Part II the need for an evidentiary hearing on the motion to told the officer about drug distribution at the hotel where suppress. We address the sentencing issues in Part III. Clark was arrested. The district court denied the motion for an evidentiary hearing on the question. The court agreed that the police had provided no information about the informant’s

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000035 6 United States v. Clark, 935 F.3d 558 (2019) credibility. The court found, however, that the police had (1) the level of detail the informant provided; (2) the extent to provided sufficient corroboration for the informant’s tip so which the informant’s information is based on his or her own that the warrant did not depend on the informant’s credibility. first-hand observations; (3) the degree to which police have That meant the omitted credibility information was not corroborated the informant’s information; (4) the time elapsed material for Franks purposes. We disagree and find that between the events reported and the warrant application; (5) a hearing is needed. “[W]e review the denial of a Franks and “whether the informant appeared or testified before the hearing for clear error, but any legal determinations *564 magistrate.” Glover, 755 F.3d at 816, citing United States that factored into the ruling are reviewed de novo.” Glover, v. Johnson, 655 F.3d 594, 600 (7th Cir. 2011). Information 755 F.3d at 815; see also Hancock, 844 F.3d at 707-08. omitted from a warrant application is material when its omission affects the probable cause determination. Glover, 755 F.3d at 820. A. The Warrant Application Investigator Todd Maas is a police officer in Superior, [12] In performing this probable cause inquiry, courts must Wisconsin. He prepared the warrant application and signed keep in mind that a search warrant for a home, business, the supporting affidavit. Maas said that a confidential or even hotel room can authorize highly intrusive and informant contacted him on October 14, 2015 and told him even destructive actions by the police, and that informants, that earlier that day, he had driven someone to a parking lot especially in drug cases, can be unreliable and motivated by adjacent to the Baywalk Inn in Superior to buy heroin from rivalries or revenge. United States v. Lopez, 907 F.3d 472, 478 a black male called “Big Mike,” the brother of “Toonchie.” (7th Cir. 2018), quoting Terry v. Ohio, 392 U.S. 1, 16-17, 88 Maas said he and another officer then performed their own S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“What we blandly call investigations, including surveillance of the parking lot. Maas ‘Terry stops’ can be highly intrusive.” They are “not just ‘a observed a black male leave the hotel and enter and then exit “petty indignity,” ’ wrote the Supreme Court, but ‘a serious at least five cars in the hotel parking lot. He also learned intrusion upon the sanctity of a person, which may inflict great that the guest staying in Room 203 was the only hotel guest indignity and arouse strong resentment, and it is not to be who both had paid in cash and was staying only one night, undertaken lightly’ ”); United States v. Bell, 585 F.3d 1045, all behavior that Maas said was typical of drug trafficking, 1050 (7th Cir. 2009) (“For all we know, [the informant] could based on his training and experience. Maas also said he had have been a rival drug dealer, an angry *565 customer, or spoken to a woman (referred to in this case as the “mom on had some other beef” with the defendant). a mission”) who said that her daughter was a heroin addict and that she (the mother) had followed a man she suspected [13] [14] Our cases do not hold that a Franks hearing is of drug-dealing to Room 203. required every time some substantial adverse information about an informant’s credibility is omitted from a probable Maas included all of this information in his affidavit, which cause affidavit. Hancock, 844 F.3d at 709. We have said convinced a state trial judge to issue a search warrant for generally that where a warrant is obtained based on an Room 203. Maas did not include any damaging information informant’s tip, “information about the informant’s credibility about the credibility of his confidential informant, who or potential bias is crucial.” Glover, 755 F.3d at 816; see, was the only source of information specifically about drug e.g., United States v. Bradford, 905 F.3d 497, 503–04 (7th trafficking. The informant was being paid for his services. He Cir. 2018). That being said, we also have upheld warrants also had two pending criminal charges against him, fifteen tainted by police omission of adverse informant credibility prior convictions, and a history of opiate and cocaine abuse, information. Our Franks hearing cases show that when and he was hoping to receive a reduced sentence in exchange police have sufficiently corroborated an informant’s tip, the for his cooperation. omission of facts pertaining to the informant’s credibility may not be material. B. Materiality In United States v. Musgraves, for example, the police [9] [10] [11] Where an affidavit is based primarily on tips omitted from the affidavit important and damaging credibility from an informant, probable cause can be shown based on the information about one informant. 831 F.3d 454, 459-60 (7th totality of the circumstances. Gates, 462 U.S. at 238, 103 S.Ct. Cir. 2016). We affirmed the denial of a Franks hearing 2317; Glover, 755 F.3d at 816. In cases based on informants’ because a second affidavit included information from a tips, we have identified five factors of particular relevance:

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000036 7 United States v. Clark, 935 F.3d 558 (2019) second informant without credibility problems who had They never saw money or drugs change hands. Even the provided the police with specific and timely information informant *566 did not claim to have seen drugs or money about the suspect’s drug trafficking to support the warrant. Id. change hands. If his tip did not pan out, he had plenty of at 460-61. deniability. He claimed only that his passenger had met with “Big Mike” outside his presence to buy heroin. And the “mom In United States v. Bradford, we also held that the affidavit’s on a mission” had no track record of credibility and provided omission of facts damaging to an informant’s credibility did no specifics to support her suspicions of the man she had not require suppression of evidence seized with a search followed to Room 203. In sum, the foundation for probable warrant for drug and weapons trafficking. 905 F.3d at cause independent of the credibility of the informant was so 503-05. In Bradford, the application failed to disclose that the meager in this case that the credibility of the informant was informant had three felony convictions, was on probation, and material for Franks purposes. was being paid for his help. Id. at 502. But his information was fresh, specific, and corroborated by his having carried out controlled drug buys from the target and by specific C. Deliberate or Reckless Omissions? information from another informant without his credibility [16] [17] [18] To obtain a Franks hearing, Clark needed problems. Id. at 504 to “offer direct evidence of [Maas’s] state of mind or circumstantial evidence that [Maas] had a subjective intent to In United States v. Hancock, we affirmed the denial of a deceive based on the nature of [his] omissions.” Glover, 755 Franks hearing in similar circumstances. 844 F.3d at 710. F.3d at 820. In his report and recommendation to the district An informant provided fresh, detailed information about a court, we must note, the magistrate judge in Clark’s case suspect’s drug sales, but the affidavit for the warrant left incorrectly read our decision in Glover to “mandate that ... out information about the informant’s own criminal history court[s] infer recklessness from the fact that an officer omitted and the fact that he was in custody when he provided the known and substantial adverse information from a search information. Id. at 705-06. We found that the omissions warrant affidavit....” That is not correct. In Glover, we held were not material because the warrant application included that “credibility omissions themselves, even in the absence of extensive corroboration of the suspect’s drug trafficking more direct evidence of the officer’s state of mind, provide and intimidation of witnesses. That corroboration came sufficient circumstantial evidence to support a reasonable and from other informants, a search of a cellular telephone thus permissible inference of reckless disregard for the truth.” showing texts referring to drug deals, and from an earlier Id. (emphasis added). In other words, credibility omissions interview with the suspect himself. The quantity and quality do not require courts to infer recklessness. Such omissions of corroborating information meant that the omitted adverse are matters for a trier of fact to weigh, just as when a witness credibility information about one informant did not require a testifies incorrectly or falsely about one or a few matters, and Franks hearing. Id. at 707-10. the trier of fact must weigh the rest of the witness’s testimony.

[15] This case is readily distinguishable. This warrant In this case, the questions of materiality and the police application did not include any of the substantial adverse affiant’s state of mind are intertwined. To the extent that information Maas had about the informant’s credibility. The corroboration might have avoided the need for a Franks government does not try to justify Maas’s omissions, but hearing in this case, the reliability of the corroboration all it argues that the informant’s credibility was not material depended, from the issuing judge’s point of view, on the same to the warrant application because Maas and his colleague officer whose credibility is at issue: Maas omitted all adverse investigated and corroborated the informant’s tip sufficiently information he had about the credibility of the informant who to provide probable cause independent of that tip. We provided the most specific (but still second-hand) information disagree. about drug trafficking. As noted, the omission of so much important information permits (but does not require) an The corroboration in this case was much weaker than in inference that the omissions were deliberate or reckless. If the cases where we upheld warrants’ validity in the face of the showing of probable cause in the warrant application credibility omissions. This case is more akin to Glover, where depended on the credibility of the informant, that permissible the warrant application depended so heavily on the credibility inference should be enough to obtain a Franks hearing. of the informant. Here, the police had no controlled buys.

The district court’s and government’s rationale for denying To be clear, we are not saying or finding here that Maas was in a Franks hearing is that Maas’s own observations supply fact deliberately or recklessly deceptive. The issue on appeal probable cause, independent of the informant. We assume is only whether Clark was entitled to a hearing, one where that if Maas’s own observations are credited, they could Maas’s credibility could be addressed with evidence from lead a reasonable judge to find probable cause, though both sides. The informant was the only source of information the application would have been much weaker without (and again, that was only second-hand) who said the person the informant’s tip to Maas. The problem is that Maas’s in Room 203 was actually dealing drugs. All of the other credibility can legitimately be questioned here based on information in the warrant application indicated grounds for what could have been deliberate or reckless omissions of suspicion, but we can assume that Maas had a good reason information about the credibility of the informant. for including the informant’s more specific information. The complete omission of the available damaging information This is where materiality and intent become intertwined. about the informant’s credibility permits an inference that If the omissions were deliberate or reckless, it would not Maas was not being honest and careful with the issuing court. be unreasonable to take seriously the prospect that other Whether he in fact was honest and careful about the facts is portions of the same warrant application may have been an appropriate subject for the Franks hearing on remand. 1 deliberately or recklessly false. Judges often instruct jurors that if they believe a witness has lied intentionally about a 1 Maas’s application also did not explain why the material matter, they may (but are not required to) discount informant would know heroin if he saw it. See United the witness’s testimony on other matters. See United States v. States v. Peck, 317 F.3d 754, 756-57 (7th Cir. 2003) Weinstein, 452 F.2d 704, 713–14 (2d Cir. 1971) (no positive (no probable cause for search warrant where affidavit rule of *567 law excludes witness’s testimony entirely based was based on informant’s report of seeing drugs in on willful falsehood, but such falsification presents issue defendant’s house, but according to affidavit, informant for jury to consider in weighing rest of testimony), quoting failed to give details about specific location and amount Knowles v. People, 15 Mich. 408, 412 (1867); Kevin F. of drugs, or any explanation as to how informant knew O’Malley, Jay E, Grenig, and William C. Lee, 1A Fed. Jury that what she saw were controlled substances). Nor did Prac. & Instr. §§ 15:01-06 (6th ed. 2019). Maas provide the kind of detail about his own training and experience that is needed to justify reliance upon [19] [20] The same point is at the heart of the Supreme them. See generally, e.g., United States v. Scott, 901 F.3d Court’s jurisprudence on impeachment evidence in Brady 842, 845 (7th Cir. 2018) (“Details ... are vital when an officer proposes his own training and experience as the cases. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, basis of a warrant”). 10 L.Ed.2d 215 (1963), and its progeny establish that government-suppressed evidence is material “ ‘if there is a II. The Timing of the Warrant and Search reasonable probability that, had the evidence been disclosed, [21] Defendant Clark was in Room 203 when police the result of the proceeding would have been different.’ ” executed the warrant. Also in the room were cellophane bags, Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 a digital scale, and approximately 82 grams of a mixture of L.Ed.2d 490 (1995), quoting United States v. Bagley, 473 U.S. heroin and fentanyl. The police photographed the hotel room 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Strong, during their search. In a photograph of suspected drugs on a non-cumulative evidence that undermines the credibility of nightstand, a digital clock is visible, reading 8:15 p.m. If the an important government witness satisfies that definition. clock was correct, the search was executed at least 25 minutes Sims v. Hyatte, 914 F.3d 1078, 1087 (7th Cir. 2019). The before the judge issued the warrant. reason is simple. Evidence indicating that a witness whose testimony “may well be determinative of guilt or innocence” *568 [22] The police of course are not permitted to rely on is unreliable might prompt a jury to distrust everything the a search warrant that has not yet been approved by a judge. witness says. Giglio v. United States, 405 U.S. 150, 154, 92 The district court denied Clark’s motion to suppress without S.Ct. 763, 31 L.Ed.2d 104 (1972). The same logic applies a hearing. The issue here is whether the photograph of the in this context. Maas’s potentially intentional or reckless clock was sufficient evidence for Clark to have an evidentiary omission compromises his credibility, which determines hearing on his motion to suppress. whether probable cause for the warrant existed or not.

[23] A defendant who requests a suppression hearing government here submitted letters and copies of documents, must present “definite, specific, detailed, and nonconjectural without any affidavits. Both parties here submitted various facts ... demonstrat[ing] that there is a disputed material issue documents to the district court with this less formal approach. of fact.” United States v. Rodriguez, 69 F.3d 136, 141 (7th But the burden is on the defendant to support his motion Cir. 1995); see United States v. Curlin, 638 F.3d 562, 564 to suppress. Missing from this record is an assertion by any (7th Cir. 2011). “Reliance on vague, conclusory allegations witness—defendant Clark or anyone else—to the effect that is insufficient.” United States v. Randle, 966 F.2d 1209, 1212 the search actually occurred at 8:15 p.m. and that the clock (7th Cir. 1992). was correct. Without such an assertion, whether in an affidavit or otherwise (given the less formal procedures being used in In response to Clark’s motion to suppress, the government the district court), the Google search results about how to alter submitted the “metadata” from the digital camera. The metadata merely invite speculation. The district court did not metadata showed a host of data about each photograph, err by denying the motion to suppress, *569 to the extent it including the time each was taken. The metadata showed that was based on the photograph of the clock, without a hearing. all of the search photographs were taken between 10:36 and 10:52 p.m., well after the judge issued the search warrant. Clark responded in turn not with an affidavit from any witness III. Sentencing Issues to the search but with results of Google searches about how A. Relevant Conduct Under the Guidelines to edit metadata for photographs. In light of the metadata, and Clark also challenges two aspects of his sentence. The first in the absence of any specific indications that data had been is a Sentencing Guidelines issue concerning the scope of his altered, the district court decided that there was no need for a relevant conduct and criminal history, which are two sides of hearing and denied Clark’s motion to suppress. the same coin here. The U.S. Probation Office prepared a Pre- Sentence Report for Clark. Pursuant to U.S.S.G. § 2D1.1(a) The situation here is similar to United States v. Woods, 995 (5) and (c)(8) of the 2016 Sentencing Guidelines Manual, 2 F.2d 713 (7th Cir. 1993). In Woods, the police conducted the PSR calculated Clark’s base offense level as 24 because a search on February 12th. The problem was that both he possessed between 40 and 160 grams of a substance the warrant and the supporting affidavit bore handwritten containing fentanyl. No other adjustments applied, so his total dates of February 14th, though both were also date-stamped offense level remained 24. The PSR also determined that February 11th. The defendant moved to suppress, arguing Clark had 11 criminal history points and was in criminal that the search had been executed two days before the history category V. Three of those 11 points were from a warrant was issued. The government responded with an 2017 federal conviction for drug distribution stemming from affidavit from a prosecutor testifying that the application events that occurred in Illinois after Clark was arrested in this and warrant were both prepared and signed on February Wisconsin federal case. Clark also received three points for 11th and that the February 14th dates were mistakes. a prior felony drug conviction in Minnesota. Because of the Using language associated with civil motions for summary Minnesota conviction, Clark faced a 120-month mandatory judgment—“disputed issues of material fact” and “genuine minimum pursuant to 21 U.S.C. § 851. (If not for the factual dispute”—we affirmed the district court’s decision enhancement, Clark would have had an advisory guideline to deny the motion to suppress without a hearing. Because range of 92 to 115 months.) the defendant had failed to respond to the government’s explanation, we agreed that he had failed to show a genuine Both the government and Clark argued for the 120-month factual dispute and a need for an evidentiary hearing. Id. at mandatory minimum sentence. The district court adopted the 715–16. facts of the PSR and determined that the PSR had calculated correctly Clark’s offense level, criminal history, and guideline 2 Another portion of the Woods opinion was abrogated by range. The court sentenced Clark to 120 months in prison the Supreme Court’s decision in Bailey v. United States, to be served consecutively to the 71-month sentence he had 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), as received in the Illinois case. we noted in United States v. Monroe, 73 F.3d 129, 133 (7th Cir. 1995). [25] On appeal, Clark argues that his later drug offense in [24] One might argue that in Woods the government the Illinois conviction should be treated under the Sentencing submitted an affidavit to explain the discrepancy, while the Guidelines as “relevant conduct” for this case rather than as

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000039 10 United States v. Clark, 935 F.3d 558 (2019) part of his criminal history. That means, he contends, his period of imprisonment will not be credited to the federal 120-month sentence in this case should run concurrently with sentence by the Bureau of Prisons; and the 71-month sentence he received in Illinois. Clark did not raise this argument in the district court. At sentencing, the (2) the sentence for the instant offense shall be imposed government asked that Clark’s sentence run consecutively to to run concurrently to the remainder of the undischarged his Illinois sentence. Clark did not object. He requested only term of imprisonment. that this sentence run concurrently with any state sentence. Section 5G1.3(d) further advises that “in any other case The government argues that Clark therefore waived this issue. involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run [26] [27] [28] Waiver is the intentional relinquishment of concurrently, partially concurrently, or consecutively to a known right, whereas forfeiture occurs when a defendant the prior undischarged term of imprisonment to achieve “negligently fails to assert a right in a timely fashion.” a reasonable punishment for the instant offense.” So if United States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007); Clark’s Illinois offense was relevant conduct here, the see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. Guidelines would recommend concurrent sentences. If his 1770, 123 L.Ed.2d 508 (1993). Concurrent sentences would Illinois offense was not relevant conduct here, the choice of reduce significantly the time Clark spends in prison. There consecutive or concurrent sentences is left to the discretion of is no reason for us to draw the inference here that Clark the sentencing judge, and there is no reason to find an abuse intentionally waived this argument. “Waiver principles should of discretion here. be construed liberally in favor of the defendant,” and we are hesitant, without more, to construe a defendant’s failure to As for the scope of relevant conduct, § 1B1.3(a)(1)(A) object to a PSR as an intentional relinquishment of a known provides that “relevant conduct” is based on “all acts and right. United States v. Jaimes-Jaimes, 406 F.3d 845, 848-49 omissions committed, aided, abetted, counseled, commanded, (7th Cir. 2005). This is especially the case where, as here, induced, procured, or willfully caused by the defendant.” the defendant had no strategic reason to forgo this sentencing “Section 1B1.3(a)(2) applies to grouped offenses and includes argument. See United States v. Jenkins, 772 F.3d 1092, 1096 ‘all acts and omissions described in subdivisions 1(A) and (7th Cir. 2014). 1(B) that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” United States v. [29] [30] Plain-error review, however, does not win relief Schrode, 839 F.3d 545, 551 (7th Cir. 2016), quoting U.S.S.G. for Clark on this issue. Plain-error review allows reversal § 1B1.3(a)(2). where: (1) there was an error; (2) the error was plain; (3) the error affected the substantial *570 rights of the defendant; [31] [32] “In assessing whether offenses are part of the and (4) the error seriously impacted the fairness, integrity, same course of conduct, we focus on whether the government or public reputation of the proceedings. Olano, 507 U.S. at has demonstrated a significant similarity, regularity, and 732-38, 113 S.Ct. 1770; United States v. Duran, 407 F.3d 828, temporal proximity.” United States v. Baines, 777 F.3d 959, 834 (7th Cir. 2005). Here, we need not address the third and 963 (7th Cir. 2015) (internal citations omitted). In considering fourth elements. If any error occurred at all, it was not “plain.” whether an offense is relevant within the meaning of § 1B1.3, our court has emphasized several factors that should guide Under § 5G1.3(b) of the Guidelines, where a defendant has an courts’ analysis. “Sufficient factual overlap exists where the undischarged term of imprisonment, and where the conduct past and present offenses involve the same victims, stem from that led to the undischarged sentence the same underlying conduct, or are in fact similar offenses.” is relevant conduct to the instant offense of conviction United States v. Orozco-Sanchez, 814 F.3d 844, 850 (7th Cir. under the provisions of subsections (a)(1), (a)(2), or (a)(3) 2016); see also United States v. Sumner, 325 F.3d 884, 889 of § 1B1.3 (Relevant Conduct), the sentence for the instant (7th Cir. 2003) (in deciding relevant conduct in drug cases, offense shall be imposed as follows: courts look for “a strong relationship between the uncharged conduct and the convicted offense, focusing on whether (1) The court shall adjust the sentence for any period the government has demonstrated a significant similarity, of imprisonment already served on the undischarged regularity, and temporal proximity”), quoting United States v. term of imprisonment if the court determines that such Acosta, 85 F.3d 275, 279 (7th Cir. 1996). The relevant conduct issue is similar to the issue in calculating criminal history

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000040 11 United States v. Clark, 935 F.3d 558 (2019) under U.S.S.G. § 4A1.2 (defining “prior sentence”), where with any persons known by defendant to be a member of or two similar prior convictions separated by an intervening affiliate of any known street gang.” On appeal, Clark argues arrest are counted separately. E.g., *571 United States v. that the term “affiliate” is unconstitutionally vague. He did Morgan, 354 F.3d 621, 623 (7th Cir. 2003); United States v. not object to this condition at sentencing. Bradley, 218 F.3d 670, 673 (7th Cir. 2000). In at least scores of appeals over the past five years, in the The district court did not plainly err in not treating Clark’s wake of United States v. Siegel, 753 F.3d 705 (7th Cir. 2014), later offense in Illinois as relevant conduct for his Wisconsin United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), conviction. To support his argument, Clark points to facts set and United States v. Kappes, 782 F.3d 828 (7th Cir. 2015), forth in his Wisconsin PSR. The PSR explained that Clark this court has wrestled with how best to handle appellate traveled to Chicago to obtain the drugs that he would then challenges to supervised release conditions that were not sell in Wisconsin. This fact, Clark asserts, establishes that his raised in the district court. Our recent opinion in United drug activities in both states were part of the same course of States v. Flores, 929 F.3d 443 (7th Cir. 2019), should bring conduct, his fentanyl-trafficking enterprise. some order to our caselaw in this niche of waiver law, particularly since it was circulated to the entire court under [33] Under our precedents, this argument faces obvious Circuit Rule 40(e), and no judge voted to hear the case “temporal proximity” and “similarity” problems. First, Clark en banc. Special considerations apply to our handling of was arrested in Wisconsin seven months before he was supervised release conditions both because they are usually arrested for selling a fentanyl mixture in Illinois. Further, the least salient concern at the time of sentencing and, more the offenses were dissimilar. In Wisconsin, Clark possessed important, because a defendant may challenge them in the more than 80 grams of fentanyl, most of which was packaged district court at any time. See Flores, 929 F.3d at 451, citing in retail packages of 0.5 grams. In Illinois, by contrast, he 18 U.S.C. § 3583(e)(2); see also United States v. Lewis, 823 was arrested for selling a confidential informant more than F.3d 1075, 1083 (7th Cir. 2016) (defendant waived challenge 65.2 grams of fentanyl. And even if the offenses had been to supervised *572 release condition: “sentencing in the more similar, “the fact that a defendant commits a certain district court is the main event”). type of offense on multiple occasions does not inevitably mean that each separate offense is part of the same course of This case meets the standards of waiver set forth in conduct.” Schrode, 839 F.3d at 552. There is not enough here Flores: Clark had prior notice of the proposed conditions, to have required the district court to have found such strong including the “affiliate” condition. He had a meaningful connections between these two drug offenses, especially opportunity to object, and his lawyer told the judge that the without an objection by the defense to that effect. The offenses proposed conditions were acceptable. Clark even raised other involved different buyers, in different cities, in different types objections to the PSR prior to sentencing but did not challenge of quantities, months apart, and with an intervening arrest for this condition, which signals an intentional decision not to the Wisconsin offense. object. See Flores, 929 F.3d at 449.

[34] “An error is ‘plain’ if the law at the time of appellate We REVERSE the district court’s denial of Clark’s motion review shows clearly that it was an error.” United States v. for a Franks hearing without an evidentiary hearing. We Pierson, 925 F.3d 913, 919 (7th Cir. 2019), citing Henderson VACATE the district court’s judgment and REMAND for a v. United States, 568 U.S. 266, 279, 133 S.Ct. 1121, 185 Franks hearing and appropriate action based on the outcome L.Ed.2d 85 (2013). Clark cannot establish with precedent of that hearing, either granting Clark’s motion to suppress or otherwise that the district court should have acted sua or, if his motion is denied, reinstating the convictions and sponte to treat his Illinois offense as conduct relevant to his sentence. If the judgment is reinstated, the denial of Clark’s Wisconsin charge. Even if there might have been an error, motion to suppress and the district court’s sentence are it was not plain error to run Clark’s two federal sentences AFFIRMED. consecutively.

B. Supervised Release Condition SCUDDER, Circuit Judge, dissenting in part. [35] Finally, the district court imposed a supervised release The panel opinion is well done, and I join all parts condition that Clark “Not meet, communicate or spend time of it except the conclusion that the district court should

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000041 12 United States v. Clark, 935 F.3d 558 (2019) have granted Michael Clark’s motion for a Franks Maas explained was consistent with drug trafficking hearing. In my view, Investigator Todd Maas’s affidavit because “drug dealers usually pay in cash and only stay supporting the search warrant, while omitting facts damaging one or two nights so to throw off police.” to the confidential informant’s credibility—facts that unquestionably should have been included—adequately • Maas also reported that, upon arriving at the hotel, he corroborated the information supplied by the informant. The had a conversation with a woman he identified by name district judge reached this precise conclusion, and under the in the warrant application, who said her 20-year-old deferential standard that guides our review on appeal, we daughter was addicted to heroin. The woman added that, should affirm. There was no clear error here. before the officer arrived, she was “also watching the black male who [was] suspected to be dealing” and she followed him to room 203.

I The majority’s analysis discounts this information, reasoning that Investigator Maas’s omission of material facts about the The majority’s opinion correctly articulates the standard informant’s background compromised his credibility on all for obtaining a Franks hearing: a defendant must make a other portions of the warrant application. Put another way, substantial preliminary showing that an officer intentionally if Maas omitted critical information about the informant’s or recklessly omitted information from a search warrant reliability, nothing else he included in his affidavit deserved affidavit and the omissions were material to the probable to be credited as part of the probable cause analysis. But our cause determination. See United States v. Glover, 755 F.3d case law does not require such broad discounting and distrust. 811, 820 (7th Cir. 2014). The majority also rightly observes See, e.g., United States v. Bradford, 905 F.3d 497, 503–05. that the omission of adverse information about an informant’s The district court was not required to view as worthless the credibility does not automatically warrant a hearing. See entirety of the corroborating information provided by Maas. United States v. Hancock, 844 F.3d 702, 709 (7th Cir. 2016). Instead the proper question is whether the affidavit would To be sure, a court faced with a reckless or intentional have established probable cause if the omitted information omission of material information may consider whether (and had been included. See id. at 708. To make this determination, to what extent) the omission bears on the officer’s credibility we consider the totality of the circumstances, including “the as part of its probable cause analysis. But I cannot say that extent to which the police have corroborated the informant’s the district court clearly erred, in light of other corroborating statements.” United States v. Sutton, 742 F.3d 770, 773 (7th evidence, by choosing to credit Maas’s affidavit despite his Cir. 2014). omission. So I would affirm the court’s denial of Clark’s motion for a Franks hearing. All agree that Investigator Maas failed to disclose critical facts about the informant’s background. In my judgment, * * * though, the warrant application had sufficient corroboration to overcome this omission and establish the requisite probable A final observation seems worthwhile. When this case entered cause to search hotel room 203 at the Baywalk Inn. Maas took federal court, a magistrate judge reviewed the state-court care to include three key pieces of corroborating evidence in warrant application and noted that it, like many others his affidavit: prepared by law enforcement officers in Wisconsin, omitted • In response to the informant’s tip about possible drug information about the confidential informant’s criminal dealing at the Baywalk Inn, Investigator Maas surveilled history. The panel’s opinion, aligned with our precedent, the hotel and observed a black male exit the hotel reinforces that this information is essential to a proper and quickly enter and exit at least five cars. Drawing probable cause analysis under the Fourth Amendment. See, on his experience as a narcotics investigator, Maas e.g., United States v. Musgraves, 831 F.3d 454, 460 (7th characterized this conduct as “textbook behavior to Cir. 2016). Given the frequency with which search warrants dealing narcotics.” sought and executed at the state level result in federal prosecutions, Wisconsin law enforcement would do well to *573 • Maas discovered that only two of the hotel’s 25 revisit its warrant application practices. Omitting information rooms had been rented with cash, with only one of about an informant’s credibility creates real yet avoidable the two—room 203—being rented for one night, which peril. Today’s decision proves the point.

All Citations

935 F.3d 558

note Clark raises two discrepancies be- search warrant affidavit would not defeat tween the district court’s oral pronounce- probable cause. ment of his supervised release conditions Affirmed. and the written judgment. Namely, the written judgment fails to include a definition for ‘‘excessive use of alcohol’’ and the 1. Criminal Law O392.50 announced cap on community service. Giv- If a defendant makes a substantial en these apparent clerical errors in the preliminary showing that police knowingly district court’s written judgment, we RE- or recklessly, rather than negligently, used MAND WITH INSTRUCTIONS for the a false or materially misleading statement district court to enter a corrected judg- to obtain a warrant, the Fourth Amend- ment reflecting the terms concerning ‘‘ex- ment requires a hearing to further test the cessive use of alcohol’’ and the cap on affiant’s veracity and determine whether community service announced at the sen- any evidence must be suppressed. U.S. tencing hearing. Const. Amend. 4.

2. Criminal Law O1139, 1158.2 , The Court of Appeals reviews the denial of a Franks hearing, to determine whether a finding of probable cause for a search warrant was based on deliberately or recklessly presented false, material in- UNITED STATES of America, formation, for clear error, but the Court Plaintiff-Appellee, reviews de novo any legal determinations v. that factored into the district court’s ruling. U.S. Const. Amend. 4. Dwayne V. DANIELS, Defendant- Appellant. 3. Searches and Seizures O112, 199 No. 17-3554 The role of a judge considering a defendant’s motion for a Franks hearing, to United States Court of Appeals, determine whether a finding of probable Seventh Circuit. cause for a search warrant was based on Argued October 2, 2018 deliberately or recklessly presented false, is to remove any overt falsehood from the Decided October 18, 2018 affidavit, or else incorporate any omitted Background: Defendant was charged material facts that undermine probable with bank robbery. The United States Dis- cause if an omission is what rendered the trict Court for the Northern District of affidavit misleading, and see if probable Illinois, No. 16 Cr 117-1, John Z. Lee, J., cause remains. U.S. Const. Amend. 4. denied defendant’s motion for Franks hearing to probe credibility of FBI agent 4. Searches and Seizures O113.1 who procured warrant for DNA samples. Probable cause necessary for a search After defendant entered conditional guilty warrant exists when, under the totality of plea, he appealed. the circumstances, a prudent person would Holding: The Court of Appeals held that find it is fairly probable that evidence of a removing misleading statement from crime is present. U.S. Const. Amend. 4.

000044 674 906 FEDERAL REPORTER, 3d SERIES

5. Searches and Seizures O112 Eastern Division. No. 16 CR 117-1— John Removing misleading statement from Z. Lee, Judge. search warrant affidavit, suggesting that Jeremy Daniel, Assistant U.S. Attorney, bank employees stated and video corrobo- Office of the United States Attorney, Chi- rated that black cap was visible during cago, IL, for Plaintiff-Appellee. bank robbery, would not defeat probable cause supporting warrant to obtain DNA Peter W. Henderson, Attorney, Office of samples from defendant, whose DNA pre- the Federal Public Defender, Thomas W. liminarily matched DNA on black cap; affi- Patton, Attorney, Office of the Federal davit otherwise accurately stated that Public Defender, Peoria, IL, Defendant- black cap was found along robber’s flight Appellant path with other items used in robbery. U.S. Const. Amend. 4. Before BAUER, KANNE, and SCUDDER, Circuit Judges. 6. Searches and Seizures O199 To secure a Franks hearing, to deter- PER CURIAM. mine whether a finding of probable cause Dwayne Daniels conditionally pleaded for a search warrant was based on deliber- guilty to bank robbery, reserving his right ately or recklessly presented false, materi- to appeal the district court’s denial of his al information, a defendant must put forth motion for a hearing under Franks v. De- an offer of proof that is more than conclu- laware, 438 U.S. 154, 98 S.Ct. 2674, 57 sory and gestures toward more than negli- L.Ed.2d 667 (1978), to probe the credibility gent mistakes. U.S. Const. Amend. 4. of the FBI agent who procured a warrant 7. Searches and Seizures O199 for samples of his DNA. We affirm because, although the wording of the warrant To secure a Franks hearing, to deter- affidavit is misleading, curing the inaccura- mine whether a finding of probable cause cy would not defeat probable cause. In any for a search warrant was based on deliber- event, Daniels has not made a substantial ately or recklessly presented false, materi- preliminary showing that the misstatement al information, what is needed is direct was deliberate or reckless. evidence of the affiant’s state of mind or else circumstantial evidence of a subjective intent to deceive. U.S. Const. Amend. 4. I. BACKGROUND 8. Searches and Seizures O199 In November 2012, a man entered a bank in Waukegan, Illinois, pointed an ap- To secure a Franks hearing, to deter- parent handgun at a teller, gave her a bag, mine whether a finding of probable cause and demanded money. He fled on foot with for a search warrant was based on deliber- $4,765. Police interviewed three bank em- ately or recklessly presented false, materi- ployees and viewed security footage. The al information, although the defendant employees described the robber as 5839 or need not overcome the court’s speculation 5849 tall, and they recounted him wearing regarding an innocent explanation, the de- some sort of Halloween mask, white fendant’s task remains relatively difficult. gloves, blue jeans, and a blue, two-toned U.S. Const. Amend. 4. hooded jacket. One employee said she could see the robber’s bare neck where the Appeal from the United States District mask ended and thought his skin was Court for the Northern District of Illinois, black.

000045 U.S. v. DANIELS 675 Cite as 906 F.3d 673 (7th Cir. 2018)

About 15 minutes after the robbery, tion of Glen Flora Avenue and Green Waukegan police recovered several items Avenue, which is approximately two approximately two blocks away from the blocks northeast of the bank. Specifical- bank and passed them on to FBI examin- ly, officers recovered a blue, two-toned ers: a toy handgun, a Santa hat, a rubber hooded jacket, two white gloves, a black Halloween mask, a black cap with eye cap with eyeholes cut into it, a Hallow- holes cut into it, a blue jacket, and two een mask, and a plastic toy gun partially white gloves. The parties now agree that wrapped in tape. the black cap was not visible from the The affidavit further noted a match be- security footage, and no witness reported tween Daniels’s DNA and DNA collected seeing it. The government’s theory is that from the black cap. the robber wore the cap under the Hallow- een mask, and no one disputes that the cap A magistrate judge issued the warrant was found near other items that comport- and the FBI obtained the hair sample and ed with the security footage and witness buccal swab. With these new samples, the descriptions. government confirmed the match between Daniels and the cap—and, this time, also An FBI examination revealed male matched him to both gloves. An indictment DNA on the black cap and one of the followed. gloves, plus male and female DNA on the second glove. A database search returned Daniels then alerted the district court a preliminary match between DNA from that ‘‘[n]ot one of the three interviewed the cap and Daniels, a 5849 black male then bank employees said that a ‘black cap’ was in the custody of Lake County Jail for an ‘wor[n] or used to rob the bank.’ ’’ Arguing unrelated offense. that the affidavit implied the opposite, he moved for a hearing under Franks v. Dela- Based on this initial match, the FBI ware, 438 U.S. 154, 98 S.Ct. 2674, 57 sought a warrant for a fresh buccal swab L.Ed.2d 667 (1978), to probe the truthful- and hair sample. A Special Agent’s affidavit accompanied the warrant application. ness of the FBI’s affiant. But the court Paragraph #6 of the affidavit describes a denied the motion (and reconsideration). man ‘‘wearing a Halloween mask, white To be sure, the court found, the support- gloves, blue jeans, and a blue, two-toned ing affidavit inaccurately suggested that hooded jacket’’ who carried ‘‘a small hand- bank employees identified (and surveil- gun’’ into the bank, robbed it, and then lance footage showed) a black cap used ‘‘ran northbound through a parking lot, during the robbery. But the court found and then went east on Glen Flora Avenue.’’ the inaccuracy unnecessary to the warrant Paragraph #8 continues with the de- and opined that ‘‘probable cause neverthe- scription that led to this appeal: less exist[ed]’’ if the affidavit were revised Approximately fifteen minutes after the to reflect the truth of the matter: that the robbery, officers from the Waukegan black cap was merely found among other Police Department who responded to the items that had appeared on video or in the robbery recovered several items that, witness accounts. according to Employees A, B, and C, The court also found that Daniels had and corroborated by video surveillance not made a substantial preliminary show- footage from the bank, Individual A ing that the falsity was knowing or reck- wore or used to rob the bank. Officers less, instead attributing the inaccuracy to a recovered those items near the intersec- negligent ‘‘scrivener’s error.’’ Daniels

000046 676 906 FEDERAL REPORTER, 3d SERIES pleaded guilty, reserving his right to ap- [5] The parties disagree about how to peal the Franks issue. frame the falsehood and excise it from the affidavit. Daniels argues that all references II. ANALYSIS to the black cap must be removed; this approach, of course, would defeat probable [1, 2] If a defendant makes ‘‘a substan- cause for a warrant to collect more of his tial preliminary showing’’ that police know- DNA. The government counters that only ingly or recklessly (rather than negligent- the language implying that witnesses saw ly) used a false or materially misleading (or the video revealed) a black cap should statement to obtain a warrant, the Fourth be removed. Amendment requires a hearing to further test the affiant’s veracity and determine The district court, for its part, deter- whether any evidence must be suppressed. mined that probable cause remained if the Franks, 438 U.S. at 155–56, 98 S.Ct. 2674. paragraph were reordered and edited as We review the denial of a Franks hearing follows to reflect the precise truth: for clear error, but we review de novo any Approximately fifteen minutes after the legal determinations that factored into the robbery, officers from the Waukegan district court’s ruling. United States v. Police Department who responded to the McMurtrey, 704 F.3d 502, 508 (7th Cir. robbery recovered a blue, two-toned 2013). hooded jacket, two white gloves, a Hal- Because the district court found that the loween mask, and a plastic toy gun par- affidavit conveys a falsehood—a finding tially wrapped in tape. According to Em- that neither party challenges on appeal— ployees A, B, and C, and corroborated we limit our discussion to two questions: by video surveillance footage from the whether the falsehood is necessary to the bank, Individual A wore or used these finding of probable cause and, if so, wheth- items to rob the bank. Officers recover there is evidence to suggest that the ered these items—as well as a black cap Special Agent knowingly or recklessly mis- with eyeholes cut into it, which employ- led the magistrate judge. ees did not see and video surveillance did not capture—near the intersection of A. Probable Cause Glen Flora Avenue and Green Avenue, which is approximately two blocks [3, 4] The role of a judge considering a northeast of the bank. defendant’s motion for a Franks hearing is to remove any overt falsehood from the Daniels, however, contends that courts affidavit—or else incorporate any omitted evaluating a Franks motion should refrain material facts that undermine probable from finessing the details in the manner of cause, if an omission is what rendered the the district judge’s comprehensive rewrite affidavit misleading—and see if probable here, and should instead confine them- cause remains. United States v. Harris, selves to either deleting any misleading 464 F.3d 733, 738 (7th Cir. 2006). Probable statements or including any material omis- cause exists when, under the totality of the sions that undermine probable cause. But circumstances, a prudent person would we need not weigh in on that question, find it is fairly probable that evidence of a because it is clear that an alternative ap- crime is present. Florida v. Harris, 568 proach advanced on appeal by the govern- U.S. 237, 243–44, 133 S.Ct. 1050, 185 ment fits clearly within the Franks frame- L.Ed.2d 61 (2013). work and leads to the same result.

000047 U.S. v. DANIELS 677 Cite as 906 F.3d 673 (7th Cir. 2018)

Specifically, paragraph #8’s misleading B. Affiant’s State of Mind description can be winnowed by discretely [6–8] For the sake of completeness, we eliminating the implication that the cap note that Daniels has not made a substan- was worn by the bank robber: tial preliminary showing that the Special Approximately fifteen minutes after the Agent’s misstep was reckless or deliberate. robbery, officers from the Waukegan To secure a Franks hearing, a defendant Police Department who responded to the must put forth ‘‘an offer of proof’’ that is robbery recovered several items that, ‘‘more than conclusory’’ and gestures to- according to Employees A, B, and C, ward more than negligent mistakes. 438 and corroborated by video surveillance U.S. at 171, 98 S.Ct. 2674. What is needed footage from the bank, Individual A is ‘‘direct evidence of the affiant’s state of wore or used to rob the bank. Officers mind’’ or else ‘‘circumstantial evidence’’ of recovered those items near the intersec- ‘‘a subjective intent to deceive.’’ United tion of Glen Flora Avenue and Green States v. Glover, 755 F.3d 811, 820 (7th Avenue, which is approximately two Cir. 2014). Although ‘‘the defendant need blocks northeast of the bank. Specifical- not overcome the court’s speculation rely, officers recovered a blue, two-toned garding an innocent explanation,’’ id., the hooded jacket, two white gloves, a black defendant’s task remains ‘‘relatively diffi- cap with eyeholes cut into it, a Hallow- cult,’’ McMurtrey, 704 F.3d at 509. een mask, and a plastic toy gun partially In the district court, Daniels flatly as- wrapped in tape. serted that an inference of recklessness or This information, combined with para- worse ‘‘is inescapable.’’ On appeal he is graph #6’s true statements of the di- more specific: the government’s motive to rection of the robber’s flight, of what bank overstate the connection between the black employees saw, and of what the video cap and the robbery is obvious; the subse- showed, is enough for a prudent observer quently-drafted criminal-complaint affida- to infer a fair probability that the black vit does not contain the same misrepresen- cap was linked to the crime. And the rob- tation; and the affiant removed the Santa ber’s height and skin color, found in para- hat from the list of items recovered, thus graph #7 of the affidavit, add at least a illustrating his overall deliberateness. But little bit to probable cause. these specific contentions were not made in the district court. In any event, given Daniels asserts that this rendering of the slight gap between what the affidavit the affidavit eliminates probable cause. said and what it should have said, a rea- Not so; the showing of probable cause is sonable observer would find it difficult to somewhat diminished, but not appreciably. infer anything worse than negligence. The We are not persuaded by Daniels’s argu- district court did not err. ment that the court should have removed all references to the black cap. That the III. CONCLUSION police found the cap along the robber’s For the foregoing reasons, the district flight path is not false. What the affidavit court’s judgment is AFFIRMED. misconveyed was a suggestion that employees stated (and video corroborated) that the black cap was visible during the , robbery. Removing that suggestion does not defeat probable cause.

000048 People v. Drake, 2017 IL App (1st) 142882 (2017) 129 N.E.3d 1, 432 Ill.Dec. 113

Illinois recognizes the common-law exception to the hearsay rule for statements made by a patient KeyCite Red Flag - Severe Negative Treatment to medical personnel for the purpose of medical Affirmed in Part, Reversed in Part by People v. Drake, Ill., March 21, 2019 diagnosis and treatment. Ill. R. Evid. 803(4). 2017 IL App (1st) 142882 Appellate Court of Illinois, First District, Cases that cite this headnote FIFTH DIVISION.

The PEOPLE of the State of [2] Criminal Law Illinois, Plaintiff–Appellee, Statements as to and expressions of personal injury or suffering v. Gerald DRAKE, Defendant–Appellant. Exception to the hearsay rule for statements made by a patient to medical personnel No. 1–14–2882 for the purpose of medical diagnosis and | treatment covers statements made to a physician Filed December 15, 2017 concerning the cause or the external source of the | condition to be treated. Ill. R. Evid. 803(4). Rehearing denied May 24, 2018 Cases that cite this headnote Synopsis Background: Defendant was convicted following a bench [3] Criminal Law trial in the Circuit Court, Cook County, Luciano Panici, J., Statements as to and expressions of of aggravated battery of his six-year old stepson and was personal injury or suffering sentenced to 20 years' imprisonment. Defendant appealed. A trial court is vested with discretion to determine whether the statements made by the victim were reasonably pertinent to the victim's Holdings: The Appellate Court, Hall, J., held that: diagnosis or treatment, for purposes of exception to the hearsay rule for statements made by a [1] stepson's statement to nurse identifying defendant as patient to medical personnel for the purpose of having poured hot water on stepson was inadmissible; medical diagnosis and treatment. Ill. R. Evid. 803(4). [2] improper admission of the statement was not harmless; and Cases that cite this headnote

[3] evidence was insufficient to support the conviction. [4] Criminal Law Statements as to and expressions of Reversed. personal injury or suffering Statements identifying the offender are beyond Gordon, J., filed opinion concurring in part and dissenting in the scope of the exception to the hearsay rule part. for statements made by a patient to medical personnel for the purpose of medical diagnosis and treatment. Ill. R. Evid. 803(4).

West Headnotes (14) Cases that cite this headnote

[1] Criminal Law [5] Criminal Law Statements as to and expressions of Hearsay personal injury or suffering Appellate Court reviews for abuse of discretion the trial court's decision whether to admit a

statement under exception to the hearsay rule Courts consider three factors in determining for statements made by a patient to medical whether an error was harmless: (1) whether the personnel for the purpose of medical diagnosis error contributed to the conviction, (2) whether and treatment. Ill. R. Evid. 803(4). the other evidence in the case overwhelmingly supported the conviction, and (3) whether the 1 Cases that cite this headnote improperly admitted evidence was cumulative or duplicative of the properly admitted evidence. [6] Criminal Law 1 Cases that cite this headnote Statements as to and expressions of personal injury or suffering Statement made by defendant's six-year old [10] Criminal Law stepson to nurse identifying defendant as having Hearsay poured hot water on stepson did not come within Improper admission of defendant's six-year old hearsay exception for statements made by a stepson's hearsay statement to nurse identifying patient to medical personnel for the purpose defendant as having poured hot water on of medical diagnosis and treatment, and thus stepson was not harmless in prosecution for the statement was inadmissible in prosecution aggravated battery, where stepson's statement for aggravated battery, where the statement was was the only evidence that placed defendant in made more than a week after stepson had the bathroom where stepson's injury occurred, been admitted to the hospital, and treatment of so that the statement was not cumulative of stepson's injuries had already commenced. Ill. R. any other evidence presented at trial, and the Evid. 803(4). other evidence of defendant's guilt was not overwhelming, particularly in light of facts that Cases that cite this headnote the hot and cold water lines in the bathtub were reversed and the cold water line released water at [7] Criminal Law a scalding temperature. Hearsay Cases that cite this headnote The improper admission of hearsay evidence is harmless error if there is no reasonable probability that the verdict would have been [11] Double Jeopardy different had the hearsay been excluded. Sufficiency or insufficiency of evidence When the Double Jeopardy Clause applies, a Cases that cite this headnote reviewing court must examine the sufficiency of the evidence prior to a remand for a new trial. [8] Criminal Law U.S. Const. Amend. 5. Hearsay Cases that cite this headnote The remedy for the erroneous admission of hearsay is reversal unless the record clearly shows that the error was harmless. [12] Criminal Law Construction in favor of government, state, Cases that cite this headnote or prosecution Criminal Law [9] Criminal Law Reasonable doubt Evidence in general When reviewing a challenge to the sufficiency Criminal Law of the evidence, the relevant inquiry is whether, Curing Error by Facts Established after viewing the evidence in the light most Otherwise favorable to the state, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. OPINION Cases that cite this headnote JUSTICE HALL delivered the judgment of the court, with [13] Double Jeopardy opinion. Sufficiency or insufficiency of evidence **115 *3 ¶ 1 Following a bench trial in the Cook On review of a possible double jeopardy bar, the County circuit court, defendant Gerald Drake was convicted Appellate Court may consider all the evidence at of the aggravated battery of his six-year old stepson, J.H., the first trial, including any improperly admitted and sentenced to 20 years in the Illinois Department of evidence. U.S. Const. Amend. 5. Corrections (IDOC). On appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt Cases that cite this headnote that he intentionally immersed J.H. in hot water where no eyewitnesses testified and unrebutted evidence shows that the [14] Assault and Battery hot and cold water lines were reversed in the bathtub in which Aggravated or felony assault J.H. sustained his burns; (2) the trial court erred in allowing Evidence was insufficient to support defendant's nurse Rosalina Roxas to testify to J.H.'s statement identifying conviction for aggravated battery based on him as the person who poured hot water on him where it his six-year old stepson's third-degree burns was not pertinent to his medical diagnosis and treatment and, resulting from scalding bath water; nurse who therefore, inadmissible under the common-law exception to treated stepson testified that she never asked for the hearsay rule; (3) this court should remand for a Krankel details and that she never spoke with anyone inquiry where he argued trial counsel's ineffectiveness for from stepson's family, investigator testified that failing to put on evidence of J.H.'s mental disability and J.H.'s the hot and cold water lines from the water statement in which he did not implicate defendant, yet the tank installed by the landlord were reversed trial court failed to investigate the claims; and (4) his 20– and that the water coming from the tank was year sentence was excessive, and this court should impose a 160 degrees, and the only evidence placing sentence closer to the minimum or, alternatively, remand for defendant in the bathroom where the injury a new sentencing hearing. occurred was stepson's erroneously admitted hearsay statement to nurse that defendant had ¶ 2 For the following reasons, we reverse. poured hot water on stepson. 720 Ill. Comp. Stat. Ann. 5/12-4(a) (2008). ¶ 3 BACKGROUND Cases that cite this headnote ¶ 4 The State's evidence at trial established that defendant lived with his wife and their nine children, including J.H. While his wife was at work on July 29, 2008, defendant was *2 Appeal from the Circuit Court of Cook County. No. 08 home taking care of the children, who ranged in age from CR 23372, 11 C6 60174, Honorable Luciano Panici, Judge, infancy to 12 years old. While defendant was at home with Presiding. the children, J.H. sustained second—and third-degree burns on his buttocks, genital region, and both feet up to his ankles. Attorneys and Law Firms

Michael J. Pelletier, Patricia Mysza, and Brett C. Zeeb, of ¶ 5 Retired registered nurse Rosalina Roxas testified on direct State Appellate Defender’s Office, of Chicago, for appellant. examination that she treated J.H. for his burns at John H. Stroger, Jr., Hospital (Stroger Hospital). She testified that Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. on August 8, 2008, when she entered his room, J.H. said Spellberg, Janet C. Mahoney, and Ashlee Cuza, Assistant “nurse, I'm going to tell you something.” J.H. then told her State’s Attorneys, of counsel), for the People. that defendant poured hot water on him while he was in

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000051 3 People v. Drake, 2017 IL App (1st) 142882 (2017) 129 N.E.3d 1, 432 Ill.Dec. 113 the tub. J.H. indicated that he had not done anything to ¶ 8 On cross-examination, Investigator White testified that upset defendant. No one else was in the room. On cross- defendant indicated that he was not angered at the time he sent examination, she again confirmed that J.H. told her that his J.H. to take a bath. Defendant told him that a new water tank father poured a cup of hot water on his buttocks while he was was installed by the landlord and that the hot and cold water in the tub, but she further testified that she never asked how lines were reversed. White checked the temperature coming large the cup was nor did she ever see or speak to anyone from out of the spigot when the cold water knob was turned on, and J.H.'s family. the temperature rose “rapidly” to 161 degrees. When White went to the basement to examine the water tank, he discovered ¶ 6 The State also presented the expert testimony of Dr. that the hot and cold water pipes had been installed backwards Marjorie Fujara, a specialist in child abuse pediatrics at on the new tank. Stroger Hospital. She examined J.H. on July 30, 2008, and stated that, in her professional opinion, J.H.'s injuries were ¶ 9 The defense rested without making a motion for directed the result of forcible immersion, indicative of child abuse. finding or presenting any evidence. She indicated that the injuries were not consistent with water being poured on J.H., contrary to the statement testified to by ¶ 10 The State argued in closing that defendant intentionally Nurse Roxas. Dr. Fujara also stated that her opinion would held J.H. under hot bath water. Defense counsel argued that not change even if she knew that the hot and cold water knobs J.H. was accidentally burned in the tub while defendant was had been switched. She further stated that all of J.H.'s siblings not present in the bathroom. Additionally, defense counsel were examined and none of them had burns or indications of argued that the State presented no evidence to support its abuse. Dr. Fujara also never spoke with any of J.H.'s family theories besides the injuries themselves and that no witness, members. including any of the other children present in the house at the time, testified as to the events of the day. 1 ¶ 7 Finally, retired Illinois Department of Children and Family Services (DCFS) investigator Thomas White, who 1 The incident occurred in July 2008, and the trial occurred investigated *4 **116 the case in 2008, testified that he in 2014. interviewed defendant at the family home on August 3, 2008, and defendant denied that he injured the child. Defendant ¶ 11 At the conclusion of the bench trial, the trial court found indicated that on the date of the injuries, his wife, J.H.'s defendant guilty of aggravated battery, citing two grounds in mother, was at work and he was caring for their eight or particular. First, the trial court observed: “There is scientific nine children at home (White could not recall the exact evidence where a reasonable inference can be made that in number because so much time had passed), who ranged in age fact the defendant, who was the caregiver or caretaker of from infancy to 12 years old. Investigator White concluded these eight children while mother was at work, in charge that defendant was overwhelmed, although defendant himself caused these injuries.” Second, the trial court found, after never used that word. On the date J.H. sustained his injuries, considering all the evidence: “It's consciousness of guilt the baby defecated in his diaper, some of which ended up on because defendant took off, also the fictitious name that he the floor, during which time J.H. and another sibling were used when he went to the hospital * * *.” The trial court's wrestling and got into the feces on the floor. After seeing them finding referred to the fact that, on November 29, 2011, with feces on themselves, defendant told them to go and take defendant failed to appear for a court date and a bench warrant a bath. When his wife came home from work that evening, the was issued for his arrest. 2 other kids told her that J.H.'s feet were peeling. Defendant and his wife took J.H. to the hospital, with defendant carrying him 2 On February 28, 2013, defense counsel stated to the trial inside. Defendant admitted to Investigator White that, once court that defendant “turned himself in to the police. * * they arrived at the hospital, he used the name “Joe Campbell,” * He said that he wanted to get it over with. So, he told stated that he was the child's uncle, and made up a story as them about the warrant.” However, the assistant State's to the child's location at the time of injury. When Investigator Attorney argued during the State's closing at trial that White interviewed the other children, he did not observe any “he didn't turn himself in.” Defense counsel objected but signs or symptoms of abuse and they “[s]eemed appropriately was overruled. The State presented no evidence at trial adjusted.” concerning the circumstances of defendant's 2013 arrest.

**117 *5 ¶ 12 On May 21, 2014, several weeks after trial percent.” The trial court responded, “My sentence was 22 but prior to sentencing, defendant filed a pro se motion titled years and I wasn't considering whether or not it was going to “Motion–To–Appeal–An–Unfair–Trial,” in which he claimed be 50 or 85 percent.” 3 The court then ruled that it “will re- that his trial counsel was ineffective. Defendant filed this pro sentence the defendant to a term of 20 years I.D.O.C. plus 3 se motion with the clerk of the Appellate Court, First District, years MSR at 85 percent.” who forwarded it to the circuit court clerk. On June 26, 2014, which was almost a month prior to sentencing, the trial court 3 The State concedes in its appellate brief that on July entered an order that denied defendant's pro se motion and 22, 2014, “the trial court determined that defendant's treated it instead as an interlocutory notice of appeal. sentence would be served at 50–percent.”

¶ 13 On July 22, 2014, the trial court denied a posttrial motion ¶ 17 On August 8, 2014, defendant again filed his for a new trial filed by defendant's counsel. In this posttrial pro se motion titled “Motion–To–Appeal–An–Unfair–Trial– motion, defendant reasserted a claim that the trial court had Factors–That–My–Attorney–Did not-Argue-in-Trial On– previously denied, namely, that this case was barred on res Defendant–Behalf.” In this motion, defendant claimed that judicata grounds because in a prior abuse and neglect case his attorney did not “do a good job” because he failed to filed by the State against defendant and his wife based on the argue that the victim had suffered from mental health issues same incident, the State had failed to prove its case by clear since he was a toddler and had attended “mentally retarded and convincing evidence. Defendant also claimed that the schools all his **118 *6 life.” Defendant claimed that all evidence was insufficient to prove him guilty of aggravated of J.H.'s teachers had stated on school reports that “he thinks battery of a child and that the trial court erred by admitting slower than normal kids” and that J.H.'s mental issues played the nurse's statement pursuant to the hearsay exception for a large role in his injuries. Defendant argued that if it took medical statements. only one or two seconds to become burned at 160 degrees, J.H.'s reaction time is a lot slower than a normal child and ¶ 14 After denying the posttrial motion, the trial court that was why it “took him longer than a normal kid * * * sentenced defendant to 22 years in the IDOC. A discussion to get out.” Defendant also claimed that his attorney failed ensued as to whether the sentence was to be served at 85% or to present expert testimony by a plumber about the broken 50%. The trial court then ordered, “22 years IDOC plus three water tank. His attorney also failed to argue that J.H. spoke to years mandatory supervised release at 50 percent.” a DCFS case worker, a physician, and a detective and never told any of them that defendant held him in the tub. Defendant ¶ 15 After sentencing defendant on the aggravated battery further claimed that his attorney also failed to explain that charge, the trial court then proceeded to a sentencing hearing defendant had a history of using fake names because he had an on another outstanding charge. Defendant had previously outstanding warrant for driving with a revoked license. Also, pleaded guilty to a charge of driving a motor vehicle while his defendant did not want to initially turn himself in because his license was suspended or revoked. The trial court sentenced family had fallen behind on the rent and other bills and he him on this second charge to one year in the custody of the wanted to pay off these bills first. IDOC to be served consecutively to the aggravated battery sentence. ¶ 18 The trial court docketed this pro se motion as a notice of appeal, and no other notice of appeal was filed. This appeal ¶ 16 On July 24, 2014, the State filed a “Petition for Relief followed. from Judgment,” arguing that defendant's aggravated battery sentence was a void judgment because it had to be served at 85%, not at 50%, as the trial court ordered. At the hearing ¶ 19 ANALYSIS on the petition on August 6, 2014, the State requested that the trial court resentence defendant. The trial court stated: ¶ 20 As previously stated, defendant makes a number of “I didn't make any specific findings on the record, I don't arguments on appeal. Specifically, he contends that (1) think, because I didn't write anything down, I just said 22 the State failed to prove beyond a reasonable doubt that years.” Defense counsel argued that defendant “would have he intentionally immersed J.H. in hot water, where no essentially served 11 years” with the IDOC and, thus, the eyewitnesses testified and unrebutted evidence shows that trial court should now sentence defendant to “14 years at 85 the hot and cold water lines were reversed in the bathtub in

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000053 5 People v. Drake, 2017 IL App (1st) 142882 (2017) 129 N.E.3d 1, 432 Ill.Dec. 113 which J.H. sustained his burns; (2) the trial court erred in Ill.Dec. 762, 860 N.E.2d 416; Davis, 337 Ill. App. 3d at allowing Nurse Roxas to testify to J.H.'s statement identifying 990, 272 Ill.Dec. 397, 787 N.E.2d 212. Accordingly, we will him as the person who poured hot water on him where it review the trial court's decision for an abuse of discretion. was not pertinent to his medical diagnosis and treatment and, therefore, inadmissible under the common-law exception to [6] ¶ 25 In the case at bar, we find that the identification the hearsay rule; (3) this court should remand for a Krankel statement made by J.H. to Nurse Roxas was not made to inquiry where defendant argued trial counsel's ineffectiveness assist in his medical diagnosis or treatment. The statement for failing to put on evidence of J.H.'s mental disability and was made more than a week after J.H. had been admitted J.H.'s statement in which he did not implicate defendant, yet to the hospital, and treatment of his injuries had already the trial court failed to investigate the claims; and (4) his 20– commenced. While we are mindful that such statement would year sentence was excessive and this court should impose a be cause for concern to a medical professional, this court has sentence closer to the minimum or alternatively, remand for found that “concern never has been held by any Illinois court a new sentencing hearing. to support the medical diagnosis and/or treatment exception to the rule against hearsay.” Oehrke, 369 Ill. App. 3d at 70, 307 Ill.Dec. 762, 860 N.E.2d 416. Therefore, we find the common-law exception to the hearsay rule did not apply to ¶ 21 1. Hearsay Rule Violation the identification portion of J.H.'s statement. The trial court ¶ 22 Defendant contends the trial court violated Illinois Rule abused its discretion in admitting the statements at trial. of Evidence 803(4) (eff. Apr. 26, 2012) when the trial court admitted, as a statement “made for purposes of medical [7] [8] ¶ 26 This does not end our review, however. We treatment,” a hearsay statement by J.H. to Nurse Roxas must now address the question of whether the trial court's concerning the identity of the alleged perpetrator. admission of J.H.'s statements to Nurse Roxas identifying defendant was harmless error. Oehrke, 369 Ill. App. 3d at ¶ 23 The parties dispute the proper standard of review 70–71, 307 Ill.Dec. 762, 860 N.E.2d 416. The admission of for this issue. The State argues that this issue should be evidence is harmless error if there is no reasonable probability considered under an abuse of discretion standard, while that the verdict would have been different had the hearsay defendant contends that it is a question of law and should be been excluded. Oehrke, 369 Ill. App. 3d at 71, 307 Ill.Dec. reviewed de novo. 762, 860 N.E.2d 416; People v. Bridgewater, 259 Ill. App. 3d 344, 349, 197 Ill.Dec. 557, 631 N.E.2d 779 (1994). The [1] [2] [3] [4] [5] ¶ 24 Illinois recognizes the common-remedy for the erroneous admission of hearsay is reversal law exception to the hearsay rule for statements made by unless the record clearly shows that the error was harmless. a patient to medical personnel for the purpose of medical People v. Littleton, 2014 IL App (1st) 121950, ¶ 65, 383 diagnosis and treatment. People v. Oehrke, 369 Ill. App. 3d Ill.Dec. 272, 14 N.E.3d 555. 63, 68, 307 Ill.Dec. 762, 860 N.E.2d 416 (2006); People v. Gant, 58 Ill. 2d 178, 186, 317 N.E.2d 564 (1974). [9] ¶ 27 Courts consider three factors in determining whether The exception covers “ ‘statements made to a physician an error was harmless: (1) whether the error contributed concerning the cause or the external source of the condition to the conviction, (2) whether the other evidence in the to be treated.’ ” (Internal quotation marks omitted.) People case overwhelmingly supported the conviction, and (3) v. Coleman, 222 Ill. App. 3d 614, 625, 165 Ill.Dec. 151, whether the improperly admitted evidence was cumulative or 584 N.E.2d 330 (1991) (quoting Gant, 58 Ill. 2d at 186, duplicative of the properly admitted evidence. Littleton, 2014 317 N.E.2d 564). A trial court is vested with discretion to IL App (1st) 121950, ¶ 66, 383 Ill.Dec. 272, 14 N.E.3d 555. determine whether the statements made **119 *7 by the victim were “ ‘reasonably pertinent to [the victim's] diagnosis [10] ¶ 28 Here, J.H.'s statement to Nurse Roxas was the only or treatment.’ ” (Internal quotation marks omitted.) People evidence that placed defendant in the bathroom where the v. Davis, 337 Ill. App. 3d 977, 989–90, 272 Ill.Dec. 397, injury occurred. Thus, the statement was not cumulative of 787 N.E.2d 212 (2003) (quoting People v. Williams, 223 Ill. any other evidence presented at trial. See Littleton, 2014 IL App. 3d 692, 700, 166 Ill.Dec. 166, 585 N.E.2d 1188 (1992)). App (1st) 121950, ¶ 65, 383 Ill.Dec. 272, 14 N.E.3d 555. Statements identifying the offender, however, are beyond the Additionally, the other evidence of defendant's guilt was not scope of the exception. Oehrke, 369 Ill. App. 3d at 68, 307 so overwhelming, particularly in light of the facts that the

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000054 6 People v. Drake, 2017 IL App (1st) 142882 (2017) 129 N.E.3d 1, 432 Ill.Dec. 113 hot and cold water spigots were switched, the cold water spigot released water at a scalding temperature, and none [11] ¶ 34 When the double jeopardy clause applies, a of the medical personnel testified to speaking with any of reviewing court must examine the sufficiency of the evidence J.H.'s family members. Since J.H.'s statement to the nurse prior to a remand for a new trial. Hernandez, 2017 IL App that defendant was the perpetrator was the foundation of the (1st) 150575, ¶ 136, 414 Ill.Dec. 275, 80 N.E.3d 8. State's case, we cannot see how the erroneous admission of his hearsay statement was harmless error. [12] [13] ¶ 35 When reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, ¶ 29 Based on the record, we cannot say that “ ‘the after viewing the evidence in the light most favorable to the properly admitted evidence was so overwhelming, without State, any rational trier of fact could have found the essential the erroneously admitted hearsay statements, that no fair- elements of the crime beyond a reasonable doubt. People v. minded *8 **120 trier of fact could reasonably have Sutherland, 155 Ill. 2d 1, 17, 182 Ill.Dec. 577, 610 N.E.2d acquitted the defendant.’ ” Oehrke, 369 Ill. App. 3d at 71, 307 1 (1992); People v. Brown, 2017 IL App (1st) 142877, ¶ Ill.Dec. 762, 860 N.E.2d 416 (quoting Bridgewater, 259 Ill. 39, 412 Ill.Dec. 465, 75 N.E.3d 445. To prove the offense App. 3d at 349, 197 Ill.Dec. 557, 631 N.E.2d 779). We find of aggravated battery, the State was required to show that the trial court's admission and use of J.H.'s hearsay statements defendant intentionally or knowingly caused great bodily was reversible error. harm or permanent disability while committing a battery. 720 ILCS 5/12–4(a) (West 2008). Additionally, we may consider all the evidence at the first trial, including any improperly admitted evidence, when making this determination. See ¶ 30 2. Sufficiency of the Evidence Hernandez, 2017 IL App (1st) 150575, ¶ 141, 414 Ill.Dec. ¶ 31 A finding that the erroneous admission of hearsay 275, 80 N.E.3d 8; Oehrke, 369 Ill. App. 3d at 71, 307 Ill.Dec. evidence was reversible error does not end our inquiry, 762, 860 N.E.2d 416; People v. Johnson, 296 Ill. App. 3d 53, however, as defendant also challenges the sufficiency of 66, 230 Ill.Dec. 473, 693 N.E.2d 1224 (1998). the evidence. Specifically, defendant contends that the State failed to prove beyond a reasonable doubt that he intentionally [14] ¶ 36 Here, the State presented evidence that J.H. immersed J.H. in hot water where no eyewitnesses testified sustained second—and third-degree burns on his buttocks, and the unrebutted evidence shows that the hot and cold water genital region, and both feet up to his ankles. Nurse Roxas lines were reversed in the bathtub in which J.H. sustained his testified on direct examination that on August 8, 2008, J.H. burns. told her that defendant poured hot water on him while he was in the tub. On cross-examination, she testified that she never ¶ 32 In this case, because the trial court committed reversible asked for any details nor did she ever see or speak to anyone error in admitting hearsay evidence as previously determined, from J.H.'s family. the remedy would ordinarily be a remand for a new trial. See Littleton, 2014 IL App (1st) 121950, ¶ 65, 383 Ill.Dec. 272, ¶ 37 The State also presented the expert testimony of Dr. 14 N.E.3d 555. However, in this case, because defendant has Fujara, who examined **121 *9 J.H. on July 30, 2008, and challenged the sufficiency of the evidence, double jeopardy stated that, in her professional opinion, J.H.'s injuries were is triggered, and we must consider whether we may remand the result of forcible immersion, indicative of child abuse. for a new trial. See People v. Hernandez, 2017 IL App (1st) She indicated that the injuries were not consistent with water 150575, ¶¶ 134–36, 414 Ill.Dec. 275, 80 N.E.3d 8. being poured on J.H., contrary to the statement testified to by Nurse Roxas. Dr. Fujara also never spoke with any of J.H.'s ¶ 33 The double jeopardy clause provides that no person shall family members. “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amends. V, XIV. The Illinois ¶ 38 Additionally, retired DCFS investigator White testified Constitution (Ill. Const. 1970, art. I, § 10) and Illinois statute that he interviewed defendant at the family home on August (720 ILCS 5/3–4(a) (West 2012)) provide similar guarantees. 3, 2008, and defendant denied that he injured the child. People v. Bellmyer, 199 Ill. 2d 529, 536–37, 264 Ill.Dec. Defendant indicated that on the date of the injuries, his wife, 687, 771 N.E.2d 391 (2002); Hernandez, 2017 IL App (1st) J.H.'s mother, was at work and he was caring for all of the 150575, ¶ 135, 414 Ill.Dec. 275, 80 N.E.3d 8. children at home, who ranged in age from infancy to 12

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000055 7 People v. Drake, 2017 IL App (1st) 142882 (2017) 129 N.E.3d 1, 432 Ill.Dec. 113 years old. On the date J.H. sustained his injuries, the baby defecated in his diaper, some of which ended up on the floor, ¶ 44 CONCLUSION during which time J.H. and another sibling were wrestling and got into the feces on the floor. After seeing them with feces ¶ 45 For the foregoing reasons, the judgment of the circuit on themselves, defendant told them to go and take a bath. court of Cook County is reversed. When his wife came home from work that evening, the other kids told her that J.H.'s feet were peeling. Defendant and his ¶ 46 Reversed. wife took J.H. to the hospital, with defendant carrying him inside. Defendant admitted to Investigator White that, once they arrived at the hospital, he used the name “Joe Campbell,” stated that he was the child's uncle, and made up a story as to Justice Lampkin concurred in the judgment and opinion. the child's location at the time of injury. Justice Gordon partially concurred and partially dissented in the judgment and opinion. ¶ 39 On cross-examination, Investigator White testified that defendant indicated that he was not angered at the time he sent J.H. to take a bath. Defendant told him that there had ¶ 47 JUSTICE GORDON, concurring in part and dissenting been a new water tank installed by the landlord and that the in part: hot and cold water lines were reversed. Investigator White **122 *10 ¶ 48 For the following reasons, I concur with verified that the hot water tank's pipes were reversed, and he the majority's finding that defendant's conviction must be also learned that the water coming from the tank was 160 reversed but dissent from the majority's finding that double degrees as measured by his thermometer. jeopardy bars a retrial. Thus, I would reverse and remand for further proceedings. In addition, I write separately to discuss ¶ 40 As previously stated, J.H.'s erroneously admitted hearsay arguments and case law not addressed by the majority. statement was the only piece of evidence placing defendant in the bathroom where the injury occurred. The State provided ¶ 49 I concur with the majority's finding that the trial court no other identification evidence, and it is undisputed that there erred in allowing a nurse to testify about J.H.'s statement were other people present in the house. identifying defendant as the person who poured hot water on him, where it was not pertinent to J.H.'s medical diagnosis ¶ 41 Viewing all of the evidence presented at the trial in the and treatment and, therefore, was not admissible under the light most favorable to the State, we conclude that the State medical diagnosis and/or treatment exception to the hearsay failed to prove defendant guilty of the essential elements of rule. Ill. R. Evid. 803(4) (eff. Apr. 26, 2012). I agree that aggravated battery beyond a reasonable doubt. The double the alleged identity of the perpetrator cannot be considered a jeopardy clause forbids a second or successive trial for the statement made for the purposes of medical treatment in this purpose of affording the prosecution another opportunity to particular case. supply evidence it failed to muster in the first proceeding. People v. Olivera, 164 Ill. 2d 382, 393, 207 Ill.Dec. 433, 647 ¶ 50 However, I must write separately on this issue because N.E.2d 926 (1995) (citing Burks v. United States, 437 U.S. 1, (1) I disagree with the standard of review applied by the 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). As such, defendant's majority and (2) we need to address an argument raised by the conviction is reversed. State and overlooked by the majority.

¶ 51 While there is no dispute between the parties that the issue was preserved for our review, the State and defendant ¶ 42 3. Defendant's Other Claims of Error do dispute the proper standard of review. The State argues, and the majority agrees, that we should apply an abuse- ¶ 43 Since we are reversing defendant's conviction, we do not of-discretion standard of review, which normally applies to need to reach defendant's claims concerning a Krankel inquiry evidentiary questions. By contrast, defendant argues, and or sentencing error. I agree, that whether the hearsay exception applies to the alleged identity of the perpetrator is solely a question of law, which we should review de novo.

contest the nurse's ability to testify that hot water was poured ¶ 52 While evidentiary rulings are generally within the on J.H.'s buttocks while in the tub. E.g., People v. Spicer, 379 sound discretion of the trial court, de novo review applies Ill. App. 3d 441, 447, 451, 318 Ill.Dec. 707, 884 N.E.2d 675 to an evidentiary question if that question concerns how to (2007) (a victim's statement to an emergency room doctor correctly interpret a “ ‘rule of law.’ ” People v. Caffey, 205 about the incident, namely, that she had been “ ‘tied and Ill. 2d 52, 89, 275 Ill.Dec. 390, 792 N.E.2d 1163 (2001) raped,’ ” was admissible pursuant to the hearsay exception (quoting People v. Williams, 188 Ill. 2d 365, 369, 242 Ill.Dec. for medical diagnosis). The issue is only whether the nurse 260, 721 N.E.2d 539 (1999)). An abuse of discretion occurs should have been allowed to testify as to the alleged identity only where the trial court's ruling is arbitrary, fanciful, or of the perpetrator. unreasonable or where no reasonable person would take the view adopted by the trial court. People v. Patrick, 233 Ill. 2d ¶ 55 In support of its argument that we should apply an abuse- 62, 68, 330 Ill.Dec. 149, 908 N.E.2d 1 (2009). By contrast, de of-discretion standard of review to this question, the State novo consideration means that we perform the same analysis cites only one case: In re Jovan A., 2014 IL App (1st) 103835, that a trial judge would perform. People v. Schlosser, 2017 IL 379 Ill.Dec. 432, 6 N.E.3d 760. In Jovan A., the question App (1st) 150355, ¶ 28, 415 Ill.Dec. 479, 82 N.E.3d 683. was whether a police officer's testimony about the content of an online advertisement was properly admitted to show the ¶ 53 The question of whether the hearsay exception includes course of the officer's investigation. Jovan A., 2014 IL App the alleged identity of the perpetrator is solely a question (1st) 103835, ¶ 34, 379 Ill.Dec. 432, 6 N.E.3d 760. This court of law, to which we apply de novo review. This court applied an abuse-of-discretion standard of review (Jovan A., previously considered this issue and found that, while a 2014 IL App (1st) 103835, ¶ 20, 379 Ill.Dec. 432, 6 N.E.3d trial court is vested with discretion in determining whether 760) and found that the trial court erred by admitting the statements made by a victim were reasonably pertinent to advertisement's content (Jovan A., 2014 IL App (1st) 103835, the victim's diagnosis or treatment, any statements identifying ¶ 35, 379 Ill.Dec. 432, 6 N.E.3d 760). By contrast, the issue the offender were “beyond the scope” of the trial court's in the case at bar requires us to interpret the proper scope of discretion. Oehrke, 369 Ill. App. 3d at 68, 307 Ill.Dec. 762, a rule of evidence, namely, Illinois Rule of Evidence 803(4) 860 N.E.2d 416. “[W]here the credibility of the witnesses (eff. Apr. 26, 2012). Schlosser, 2017 IL App (1st) 150355, is not at issue, no relevant facts are in dispute, and the ¶ 28, 415 Ill.Dec. 479, 82 N.E.3d 683 (issues of statutory court's ruling is not related in any way to a balancing of interpretation are reviewed de novo). Thus, de novo review [probative value] versus prejudice—in other words, when the applies. considerations on which we typically defer to the trial court are not present—and the only issue for the reviewing court ¶ 56 Next, we need to address an argument raised by the is the correctness of the trial court's legal interpretation, de State and overlooked by the majority. The State argues that novo review is appropriate.” People v. Risper, 2015 IL App the outcome of this case is dictated by the Illinois Supreme (1st) 130993, ¶ 33, 393 Ill.Dec. 426, 34 N.E.3d 627; see also Court's opinion in People v. Falaster, 173 Ill. 2d 220, 230, 218 **123 *11 People v. Aguilar, 265 Ill. App. 3d 105, 109, Ill.Dec. 902, 670 N.E.2d 624 (1996), in which our supreme 202 Ill.Dec. 485, 637 N.E.2d 1221 (1994) (de novo review court found that a child victim's statements made to a nurse applied to a trial court's evidentiary ruling where the case during a diagnostic examination fit within the scope of this “involve[d] a legal issue and did not require the trial court hearsay exception. to use its discretion regarding fact-finding or assessing the credibility of witnesses” (cited with approval in Caffey, 205 ¶ 57 While there is a general bar to admitting statements Ill. 2d at 89, 275 Ill.Dec. 390, 792 N.E.2d 1163)). of identification as statements made for the purposes of medical diagnosis or treatment, 4 our supreme court in ¶ 54 The question before us is solely whether the alleged **124 *12 Falaster, 173 Ill. 2d at 230, 218 Ill.Dec. 902, identity of a perpetrator can be considered a statement made 670 N.E.2d 624, carved out a limited exception to this bar for purposes of medical treatment, which is purely a legal for a child victim's identification of a family member in question. In the statement at issue, a nurse testified that J.H. cases of sexual abuse. The supreme court explained that “a told her that “his dad was the one who poured hot water on victim's identification of a family member as the offender his buttocks while he was in the tub.” However, the admission is closely related to the victim's diagnosis and treatment in of most of this statement is not at issue. Defendant does not cases involving allegations of sexual abuse.” Falaster, 173

Ill. 2d at 230, 218 Ill.Dec. 902, 670 N.E.2d 624; see also this hearsay exception”); People v. Sommerville, 193 Ill. People v. Morgan, 259 Ill. App. 3d 770, 781, 197 Ill.Dec. App. 3d 161, 175–76, 140 Ill.Dec. 443, 549 N.E.2d 1315 765, 631 N.E.2d 1224 (1994) (a child's statement to doctors (1990) (the victim's description of “the perpetrator as identifying his stepfather “as the person who sexually abused ‘a black man’ ” was “a statement which should have him was reasonably pertinent to diagnosis and treatment”). been excluded as descriptive testimony unnecessary for medical diagnosis and treatment”); People v. Taylor, 153 In essence, the State in the case at bar asks us to extend Ill. App. 3d 710, 721, 106 Ill.Dec. 614, 506 N.E.2d 321 Falaster to cases not involving sexual abuse, but the State (1987) (“We are unaware of any criminal case where does not cite a single case in the 20 years since Falaster was a physician has been permitted, under the physician- decided that has done so. Oehrke, 369 Ill. App. 3d at 70, 307 patient exception to the hearsay rule, to repeat a statement Ill.Dec. 762, 860 N.E.2d 416 (“In Falaster and Morgan, the made by the patient identifying the assailant.”); c.f. courts recognized intrafamily sexual abuse of a child creates Spicer, 379 Ill. App. 3d at 447, 451, 318 Ill.Dec. 707, 884 unique psychological harm that requires special treatment.”); N.E.2d 675 (an adult victim's statement to an emergency see also People v. Stull, 2014 IL App (4th) 120704, ¶¶ 75–81, room doctor about how the incident occurred, namely, 378 Ill.Dec. 948, 5 N.E.3d 328 (the appellate court discussed that she had been “ ‘tied and raped,’ ” was admissible Falaster to find no error in admitting a six-year-old child's pursuant to the hearsay exception for medical diagnosis). statement to a doctor identifying her father as the person who ¶ 58 I do concur with the majority's finding that this error had sexually assaulted her); People v. Simpkins, 297 Ill. App. was not harmless. People v. Thompson, 238 Ill. 2d 598, 3d 668, 679–80, 231 Ill.Dec. 748, 697 N.E.2d 302 (1998) 611, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010) (when a (discussing Falaster as precedent in a case of alleged criminal defendant has preserved an issue for appellate review, the sexual assault by defendant of his five-year-old daughter). reviewing court will conduct a harmless error analysis). Thus, I would expressly decline the State's invitation to extend J.H.'s statement to the nurse was the only evidence placing Falaster's holding. See Oehrke, 369 Ill. App. 3d at 70, 307 defendant in the bathroom where the injury occurred. Thus, Ill.Dec. 762, 860 N.E.2d 416 (“We decline to broaden the the statement was material and not cumulative of any other terms of the medical diagnosis and treatment exception by evidence in the record, and I agree that we must reverse judicial fiat, ‘lest the exception swallow a rule that has served defendant's conviction. See Caffey, 205 Ill. 2d at 92, 275 so well for so long.’ [Citation.]”). Ill.Dec. 390, 792 N.E.2d 1163 (“[e]rror in the exclusion of hearsay testimony is harmless where the excluded evidence is 4 See Oehrke, 369 Ill. App. 3d at 68, 307 Ill.Dec. 762, 860 merely cumulative”); People v. Sims, 192 Ill. 2d 592, 629, 249 N.E.2d 416; People v. Davis, 337 Ill. App. 3d 977, 990, Ill.Dec. 610, 736 N.E.2d 1048 (2000) (admission of hearsay 272 Ill.Dec. 397, 787 N.E.2d 212 (2003) (“identification testimony was harmless where “the evidence *13 **125 of of the offender is outside the scope of the exception”); defendant's guilt was overwhelming”). People v. Cassell, 283 Ill. App. 3d 112, 125, 218 Ill.Dec. 512, 669 N.E.2d 655 (1996) (“the part of C.G.'s statement ¶ 59 However, I find that a retrial of defendant does not violate referring to her ex-boyfriend as the perpetrator was not the bar against double jeopardy. See Oehrke, 369 Ill. App. 3d admissible under this exception since the identity of at 71, 307 Ill.Dec. 762, 860 N.E.2d 416; People v. Johnson, the person who attacked her was not necessary to her 296 Ill. App. 3d 53, 66, 230 Ill.Dec. 473, 693 N.E.2d 1224 receiving proper medical treatment”); People v. Hall, 235 (1998). In reaching its conclusion, the majority overlooks Ill. App. 3d 418, 435, 176 Ill.Dec. 185, 601 N.E.2d 883 (1992) (“Although medical personnel may testify as to the significance of evidence that the trial court specifically statements made by a sexual assault victim to medical mentioned was pivotal to its own verdict in this bench trial. diagnosis or treatment, they may not identify the alleged The trial court observed (1) that it was defendant who was perpetrator.”); People v. Perkins, 216 Ill. App. 3d 389, “the caregiver or caretaker of these eight children while 159 Ill.Dec. 686, 576 N.E.2d 355, 39798 (1991) (“While [the] mother was at work” and (2) that defendant exhibited there is no question that Margaret's statement that she had “consciousness of guilt” (a) when he used “fictitious names * been sexually assaulted was admissible as a ‘statement[ ] * * when he went to the hospital” with the victim on the night pertinent to medical diagnosis and treatment’ [citations], of the offense and (b) when defendant “took off” for over a that part of her statement identifying Perkins as the year prior to the trial in this case. perpetrator was not admissible under this exception to the hearsay rule.”); People v. Hudson, 198 Ill. App. ¶ 60 In addition, the majority minimizes the significance of 3d 915, 922, 145 Ill.Dec. 22, 556 N.E.2d 640 (1990) the excluded evidence in its double jeopardy analysis. On (“identification of the offender is outside the scope of

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000058 10 People v. Drake, 2017 IL App (1st) 142882 (2017) 129 N.E.3d 1, 432 Ill.Dec. 113 the one hand, the majority agrees that this evidence is so majority does not discuss. While I recognize the advantages compelling that its admission, by itself, is enough to reverse. of permitting the same counsel who is already thoroughly On the other hand, the majority downplays this evidence of familiar with the case to continue with it, I would hold the guilt in its double jeopardy analysis. Our supreme court has trial court must first conduct a Krankel inquiry, for the reasons held: “If the evidence presented at the first trial, including and in the manner set forth by our supreme court in People v. the improperly admitted evidence, would have been sufficient Ayres, 2017 IL 120071, ¶¶ 9, 15, 20–22, 417 Ill.Dec. 580, 88 for any rational trier of fact to find the essential elements of N.E.3d 732 (a defendant's allegation of ineffective assistance the crime proven beyond a reasonable doubt, retrial is the of counsel even without any factual support is sufficient to proper remedy.” (Emphasis added.) People v. McKown, 236 trigger a Krankel inquiry, and a remand is necessary to allow Ill. 2d 278, 311, 338 Ill.Dec. 415, 924 N.E.2d 941 (2010). the trial court and defendant “an opportunity to flesh out his Thus, we are required to consider the victim's statement that claim”). it was defendant who was in the room with the victim when the injury occurred. For all the reasons that we found this ¶ 62 On this appeal, defendant asked this court to remand statement to be far from harmless, I believe that we must also for a Krankel inquiry, on the ground that he had filed a find it material to a double jeopardy analysis. In a double pro se posttrial motion that argued that his trial counsel jeopardy analysis, we review all the evidence presented at was ineffective for failing to introduce (1) evidence of J.H.'s the first trial and then determine whether “any rational trier mental disability and (2) statements by J.H. in which he of fact” could have found defendant guilty. McKown, 236 did not implicate defendant. There is no dispute among the Ill. 2d at 311, 338 Ill.Dec. 415, 924 N.E.2d 941. In sum, parties that the trial **126 *14 court failed to investigate after considering the reasons that the trial judge specifically defendant's claims and failed to conduct any inquiry. Thus, I gave for his verdict and the highly material and now excluded would remand for a Krankel inquiry, to be conducted before identification evidence, as well as all the other evidence at any further proceedings. trial, I find that this trial judge was not irrational. People v. ¶ 63 For the foregoing reasons, I concur only with the finding Williams, 2013 IL App (1st) 111116, ¶ 102, 377 Ill.Dec. 636, that defendant's conviction must be reversed. However, I must 2 N.E.3d 552 102 (after a bench trial, we presume that the trial dissent because I find that double jeopardy poses no bar court considered all the evidence). Thus, I would remand for to a retrial. Thus, I would remand for further proceedings a new trial without the identification portion of J.H.'s hearsay statement in evidence. including, first, a Krankel inquiry.

¶ 61 Since I would remand for a new trial and the trial All Citations court may permit the same attorney to represent defendant, I believe we must address defendant's Krankel claim, which the 2017 IL App (1st) 142882, 129 N.E.3d 1, 432 Ill.Dec. 113

3. Weapons O325 UNITED STATES of America, A joint possession instruction is neces- Plaintiff-Appellee, sary when contraband is recovered from a v. jointly-occupied residence.

Nathan DRIGGERS, Defendant- 4. Weapons O325 Appellant. In firearm possession prosecution, No. 17-2994 joint-possession instruction was warranted, United States Court of Appeals, where evidence showed that defendant and Seventh Circuit. other individual co-leased store in which firearms were found, that personal effects Argued September 21, 2018 of defendant and individual were found in Decided January 16, 2019 store, and that owner and property manag- Background: Defendant was convicted in er of store observed both defendant and the United States District Court for the individual exhibiting control over store, Northern District of Illinois, No. 15 CR such as by making rent payments or offer- 350, John J. Tharp, Jr., J., 2017 WL ing to make repairs. 18 U.S.C.A. § 922(g). 7333240, of being felon in possession of 5. Criminal Law O661 firearm. After his motion for judgment of acquittal or for new trial was denied, 2017 A district court has wide discretion WL 2986401, he appealed. when it rules on the admission of evidence. Holdings: The Court of Appeals, Wood, 6. Criminal Law O1153.1 Chief Judge, held that: The Court of Appeals reviews a dis- (1) joint-possession instruction was war- trict court’s decision to admit or exclude ranted; evidence for abuse of discretion. (2) district court did not abuse its discre- 7. Criminal Law O1139 tion in finding that evidence regarding defendant’s contacts with purchaser of The Court of Appeals reviews the stolen firearms was relevant; and question whether a defendant’s due process rights were violated by the admission (3) defendant was not prejudiced by gov- of evidence de novo. U.S. Const. Amend. ernment’s use of inconsistent theories 5. in multiple prosecutions. Affirmed. 8. Criminal Law O338(1) In considering the admissibility of evi- 1. Criminal Law O1152.21(1) dence, the standard for relevance is low. The Court of Appeals reviews a dis- Fed. R. Evid. 401. trict court’s decision to give a jury instruc- 9. Criminal Law O338(1) tion for abuse of discretion. When determining whether evidence 2. Weapons O325 is relevant, the Court of Appeals asks only In a firearm possession trial, a joint- whether it has any tendency to make a fact possession instruction is proper where more or less probable than it would be there was substantial evidence that more without the evidence when the fact is of than one person could have possessed the consequence in determining the action. gun. Fed. R. Evid. 401.

000060 656 913 FEDERAL REPORTER, 3d SERIES

10. Weapons O266 Christopher V. Parente, Attorney, Office of the United States Attorney, Chicago, In prosecution for being felon in pos- IL, for Plaintiff-Appellee. session of weapon, district court did not abuse its discretion in finding that evi- Michael Bernard Nash, Attorney, Chica- dence regarding defendant’s contacts with go, IL, for Defendant-Appellant. purchaser of stolen firearms was relevant; Before WOOD, Chief Judge, and even if defendant did not directly sell pur- FLAUM and HAMILTON, Circuit chaser guns that police found in his stor- Judges. age locker, fact that defendant had 46 contacts with known buyer of stolen guns WOOD, Chief Judge. immediately after he allegedly bought 30 In the wee hours of the morning on stolen guns supported government’s theo- April 12, 2015, thieves stole approximately ry that defendant served as the robbers’ 104 Ruger firearms from a train sitting in fence. 18 U.S.C.A. § 922(g); Fed. R. Evid. a Chicago railyard. Later that day, accord- 401. ing to the government, Nathan Driggers purchased 30 of those stolen guns. He 11. Criminal Law O1171.1(1) wound up facing charges of being a felon Defendant was not prejudiced by gov- in possession of a firearm in violation of 18 ernment’s use of inconsistent theories in U.S.C. § 922(g), and possession of a stolen multiple prosecutions, alleging that defen- firearm in violation of 18 U.S.C. § 922(j). dant sold individual guns from train rob- Driggers proceeded to trial, and a jury bery in defendant’s prosecution but alleg- returned a split verdict, finding him guilty ing that individual purchased guns from of being a felon in possession of a firearm, someone else in individual’s prosecution, but not guilty of possessing a stolen fire- and thus, to extent government’s behavior arm. Driggers now appeals his conviction. violated due process, defendant was not He argues that the district court improper- entitled to new trial; defendant was acquit- ly allowed testimony about his co-defen- ted of charge of possession stolen firearms dant Warren Gates and gave an erroneous and was only convicted of being felon in jury instruction on joint possession. Find- possession of weapon, and that conviction ing no error in the district court’s deci- was supported by gun that had no connec- sions, we affirm Driggers’s conviction. tion to train robbery. U.S. Const. Amend. I 5; 18 U.S.C.A. §§ 922(g), 922(j). On April 12, 2015, eight men entered a 12. Criminal Law O1162 Chicago railyard, broke into a cargo train parked there, and discovered a cache of A defendant is entitled to a new trial Ruger firearms being shipped from a fac- only when there is a reasonable possibility tory in New Hampshire to a distributor in that the trial error had a prejudicial effect Washington State. By the end of the night, on the jury’s verdict. these men had stolen over 100 guns. The government did not accuse Driggers of participating in the actual robbery. In- Appeal from the United States District stead, its theory (supported by the testi- Court for the Northern District of Illinois, mony of one of the robbers, Marcel Tur- Eastern Division. No. 15 CR 350—John J. ner) was that Terry Walker, another of the Tharp, Jr., Judge. robbers, contacted Driggers shortly after

000061 U.S. v. DRIGGERS 657 Cite as 913 F.3d 655 (7th Cir. 2019) the heist to set up a sale of the stolen mitted to possessing 17 of the guns from guns. The same day, Turner and Walker the train robbery. Notably, during the first took approximately 30 of the stolen fire- four months of 2015, there were zero con- arms to Driggers’s store. They met Drig- tacts between Driggers’s and Gates’s cell gers there, at which point Driggers and phones, but shortly after the train rob- Walker briefly haggled over the price of bery, there were 46 such contacts. Police the guns and then consummated the sale. searched Gates’s storage units and found Though Turner did not know how much six of the stolen guns. Gates confessed to Driggers ultimately paid for the 30 guns, possessing these guns and further admit- Turner received $1,700 for the six guns ted that he had purchased them, as well as that comprised his share. 11 others from the train robbery. In his The government’s other trial evidence own case, Gates stated that he purchased attempted to corroborate Turner’s account those guns from two of the robbers, Elgin of the gun sale. One inconvenient fact for Lipscomb and Alexander Peebles; in Drig- the prosecution was that Driggers was not gers’s case, the prosecution argued that on the lease for the store where the gun Gates had bought them from Driggers. sale allegedly occurred. But testimony The government further urged that the from Driggers’s landlord and property jury could infer from Driggers’s contacts manager established that, despite his ab- with Gates and Gates’s gun purchases that sence from the lease, the store did in fact Driggers possessed and sold guns from the belong to him. Their testimony showed train robbery. that Driggers co-leased the store month- to-month with another man, Yashmine II Odom. Odom was apparently the store’s A principal occupant, but Driggers paid the rent for the most part and made at least As we indicated, Driggers raises only some repairs. two points on appeal: one about the admission of testimony concerning Gates, and Additionally, police searched Driggers’s the other about the joint-possession jury store during their investigation, and ATF instruction. We begin with the latter. Agent Jason Vachy described that search in detail at trial. He explained that the Driggers does not assert that the joint- agents found a hodgepodge of merchandise possession instruction used by the district (some of which appeared to be stolen), court misstated the law. Instead he argues various personal documents and items be- that the court should not have included the longing to Driggers and Odom, and a gun instruction because neither party’s theory hidden in a tire in the backroom. That of the case involved joint possession, and gun’s serial number matched one of the so it only served to confuse the jury. guns stolen during the train robbery. [1–3] We review a district court’s deci- There was a fingerprint on that gun, but it sion to give a jury instruction for abuse of did not come from Driggers. discretion. United States v. Tanner, 628 The government also presented trial tes- F.3d 890, 904 (7th Cir. 2010). A joint- timony and phone records that showed possession instruction is proper where that shortly after Driggers allegedly pur- ‘‘[t]here was substantial evidence that chased the 30 stolen guns, he contacted more than one person could have pos- Warren Gates, a co-defendant who pleaded sessed the gun.’’ United States v. Rainone, guilty. Before Driggers’s trial, Gates ad- 816 F.3d 490, 494 (7th Cir. 2016). Indeed,

000062 658 913 FEDERAL REPORTER, 3d SERIES we have gone so far as to say that ‘‘a joint v. Boros, 668 F.3d 901, 907 (7th Cir. 2012). possession instruction is ‘necessary’ when We thus review ‘‘a district court’s decision contraband is recovered from a jointly- to admit or exclude evidence for abuse of occupied residence.’’ Id. (quoting United discretion.’’ Id. We review the question States v. Lawrence, 788 F.3d 234, 246 (7th whether a defendant’s due process rights Cir. 2015) ) (emphasis added). were violated de novo. See United States [4] Driggers is correct that the gov- v. Kielar, 791 F.3d 733, 736 (7th Cir. 2015). ernment primarily focused on his alleged In fact, Driggers’s Rule 401 argument purchase and subsequent sole possession and his due process argument are inter- of the stolen guns. But he ignores the fact twined. The potential relevance of any evi- that the jury had before it evidence that he dence regarding Gates could be limited and Odom jointly possessed the firearm because, based on the government’s con- that the officers found in his store. Drig- tentions in Gates’s own prosecution, it ap- gers co-leased the store with Odom, and pears that Driggers did not sell Gates any both Driggers’s and Odom’s personal ef- of the particular guns Gates was prosecut- fects—including mail, a birthday card, and ed for possessing. On the other hand, if bank statements—were found there. The Driggers had sold any of the guns he owner and the property manager of the allegedly bought from the train robbers to store also testified that they observed both Gates, evidence about the contacts be- Driggers and Odom exhibiting control over tween Driggers and Gates, as well as the the store, such as by making rent pay- fact that those guns were found in Gates’s ments or offering to make repairs. possession, would have been highly rele- Given the substantial personal effects vant. addressed to both Driggers and Odom found within the store, as well as the testi- [8–10] In either scenario, the district mony suggesting that both occupied the court did not abuse its discretion in finding store, there was ample basis for a joint- that the Gates evidence passed the thresh- possession instruction. The district court old for Rule 401. The standard for rele- acted well within its discretion to provide vance is low. Tennard v. Dretke, 542 U.S. the jury this guidance. 274, 284–85, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). When determining whether evi- B dence is relevant, we ask only whether it [5–7] Driggers also complains that the has ‘‘ ‘any tendency to make a fact more or introduction of evidence about his contacts less probable than it would be without the with Gates, including the evidence about evidence’ [when] ‘the fact is of consequence the guns from the train robbery found in in determining the action.’ ’’ Boros, 668 Gates’s storage locker, was improper. He F.3d at 907 (quoting FED. R. EVID. 401). first argues that the evidence was irrele- Even if Driggers did not directly sell vant under Federal Rule of Evidence 401. Gates the guns police found in Gates’s In addition, he asserts that the court’s storage locker, the fact that Driggers had decision to admit the evidence violated his 46 contacts with a known buyer of stolen due process rights, because the govern- guns immediately after he allegedly ment offered inconsistent theories about bought 30 stolen guns supported the gov- how Gates obtained the guns. A ‘‘district ernment’s theory that Driggers served as court has ‘wide discretion’ when it rules on the robbers’ fence. This flurry of contacts the admission of evidence.’’ United States was additionally suspicious because Drig-

000063 U.S. v. DRIGGERS 659 Cite as 913 F.3d 655 (7th Cir. 2019) gers and Gates were not in contact at all of inconsistent theories in multiple prose- during the four months preceding the rob- cutions violates due process. Compare bery. The district court thus did not abuse United States v. Frye, 489 F.3d 201, 214 its discretion in finding that this evidence (5th Cir. 2007) (‘‘[A] prosecutor can make satisfied Rule 401. inconsistent arguments at the separate tri- Before turning more directly to the due- als of codefendants without violating the process argument, we explain how the due process clause.’’), with Smith v. Gates prosecution differed from the case Groose, 205 F.3d 1045, 1049–52 (8th Cir. against Driggers. The government first 2000) (agreeing with the Ninth Circuit that proceeded against Gates; that case was ‘‘inconsistent prosecutorial theories can, in resolved with a plea agreement. In that certain circumstances, violate due process agreement, Gates admitted that he ‘‘pur- rights’’); see also Bradshaw v. Stumpf, 545 chased approximately seventeen of the U.S. 175, 190, 125 S.Ct. 2398, 162 L.Ed.2d firearms [from the train robbery] from co- 143 (2005) (Thomas, J. concurring) (‘‘This defendants PEEBLES and LIPSCOMB Court has never hinted, much less held, on or after April 13, 2015.’’ Plea Agree- that the Due Process Clause prevents a ment at 3, United States v. Gates, No. State from prosecuting defendants based 1:15-cr-350-3 (N.D. Ill. July 19, 2016), ECF on inconsistent theories.’’). Though several No. 173 (capitalization in original). Gates litigants have raised this argument before also admitted that at the time the officers us, we have thus far declined to choose a searched his storage units, he kept 13 fire- side in this matter. We have not needed to arms in those units, six of which he had address the constitutional issue because bought from Peebles and Lipscomb and the defendants who have advanced this ‘‘seven additional firearms unrelated to the theory were either not prejudiced by the train theft.’’ Id. This version of the of- prosecution’s behavior, see United States fense—that Gates purchased 17 firearms v. Flournoy, 842 F.3d 524, 530 (7th Cir. from Peebles and Lipscomb, with officers 2016), or because the government did not recovering six of those 17 guns from actually ‘‘take fundamentally opposite posi- Gates’s storage units—was repeated by tions in its two prosecutions.’’ United both ATF Agent Vachy in Gates’s Presen- States v. Presbitero, 569 F.3d 691, 702 (7th tence Investigation Report and by the Cir. 2009). We likewise take a pass here, prosecution in Gates’s sentencing memo- because Driggers was not prejudiced by randum. the government’s actions.

[11] By contrast, in Driggers’s prose- [12] A defendant is entitled to a new cution, the government represented to trial only when ‘‘there is a reasonable pos- both the district court and to the jury that sibility that the trial error had a prejudi- the guns it had previously contended Gates cial effect on the jury’s verdict.’’ Flournoy, bought from Peebles and Lipscomb were 842 F.3d at 530. Here, there is a simple in fact sold to him by Driggers. The gov- reason that the Gates evidence was not ernment has not explained to us (or to prejudicial to Driggers: the jury acquitted anyone else) how these two conflicting fac- him of the possession of a stolen firearm tual representations can coexist, and we charge that the Gates evidence supported. are at a loss to reconcile them. Even if we totally disregard the Gates The question is thus what to do about evidence, as well as the other testimony this inconsistency. The circuits are split on and argument it bolstered, there is still the question whether the prosecution’s use sufficient evidence to support the jury’s

000064 660 913 FEDERAL REPORTER, 3d SERIES

verdict on the other charge. This is because the jury could find Driggers guilty EOR ENERGY LLC, et al., of being a felon in possession based solely Plaintiffs-Appellants, on the gun found in his store—a gun that v. had no connection to Gates. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, ILLINOIS ENVIRONMENTAL 61 L.Ed.2d 560 (1979) (‘‘Once a defendant PROTECTION AGENCY, et has been found guilty of the crime al., Defendants-Appellees. charged, the factfinder’s role as weigher of the evidence is preserved through a legal No. 17-3107 conclusion that upon judicial review all of United States Court of Appeals, the evidence is to be considered in the light Seventh Circuit. most favorable to the prosecution.’’). As we noted earlier, Driggers’s connection to, Argued September 21, 2018 and control over, the store was strongly supported by the evidence. The gun was Decided January 16, 2019 found hidden in a tire in the store’s back- Background: Oil well operator brought room. This was enough to permit the jury action against Illinois Environmental Pro- to convict Driggers of being a felon in tection Agency (IEPA) and Illinois Pollu- possession of a firearm in violation of 18 tion Control Board, seeking declaratory U.S.C. § 922(g). judgment stating that it could inject acid For purposes of that count, it did not into its underground wells without getting matter whether the gun was stolen. And hazardous waste permit. The United apparently the jury was not convinced that States District Court for the Central Dis- Driggers knew, for purposes of the other trict of Illinois. No. 3:16-cv-03122, Sue E. count (under 18 U.S.C. § 922(j) ), that the Myerscough, J., 2017 WL 4181346, dis- gun in his store came from the train rob- missed the action. Operator appealed. bery, because it acquitted him on that Holdings: The Court of Appeals, Wood, charge. Even if the government’s theories Chief Judge, held that: in the Gates prosecution were inconsistent with those it used against Driggers, there (1) Rooker-Feldman barred federal action; is thus no reasonable possibility that this (2) claim preclusion barred action; tactic created a prejudicial effect on the jury’s verdict. (3) Eleventh Amendment prohibited action; and III (4) operator could not be granted opportu- Because the district court did not im- nity to cure and refile its complaint. properly instruct the jury, and because Driggers suffered no prejudice from any Affirmed. error that may have existed in the treatment of the Gates evidence, we AFFIRM O Driggers’s conviction and sentence. 1. Federal Courts 3587(1) De novo review applies to a dismissal , for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

000065 United States v. Flute, 929 F.3d 584 (2019)

Cases that cite this headnote 929 F.3d 584 United States Court of Appeals, Eighth Circuit. [2] Indictments and Charging Instruments UNITED STATES of America, Plaintiff - Appellant Purpose of Accusation v. Indictments and Charging Instruments Samantha FLUTE, Defendant - Appellee Nature, Elements, and Incidents of Offenses in General No. 17-3727 An indictment is legally sufficient on its face | if it contains all of the essential elements of Submitted: November 16, 2018 the offense charged, fairly informs the defendant | of the charges against which she must defend, Filed: July 5, 2019 and alleges sufficient information to allow a Synopsis defendant to plead a conviction or acquittal as a Background: Defendant charged with involuntary bar to subsequent prosecution. manslaughter committed within Indian Country, in Cases that cite this headnote connection with the death of her newborn baby due to combined drug toxicity, moved to dismiss indictment. The United States District Court for the District of South Dakota, [3] Indictments and Charging Instruments Charles B. Kornmann, J., 2017 WL 5495170, granted the Statutory Offenses motion. Government appealed. In determining whether a charged crime encompasses the conduct alleged in the indictment, the court engages in statutory Holdings: The Court of Appeals, Shepherd, Circuit Judge, interpretation of the indicted offense. held that: Cases that cite this headnote

[1] defendant's baby was a proper victim under the federal involuntary manslaughter statute, and [4] Statutes Language [2] involuntary manslaughter statute extended to prohibit The starting point in interpreting a statute is defendant's conduct. always the language of the statute itself.

Cases that cite this headnote Reversed and remanded.

[5] Homicide Colloton, Circuit Judge, filed dissenting opinion. Person Subject of Homicide Newborn baby who died of combined drug toxicity inflicted in utero approximately four West Headnotes (10) hours after his birth was a proper victim under the federal involuntary manslaughter statute, which [1] Criminal Law criminalized the unlawful killing of a human Review De Novo being without malice. 1 U.S.C.A. § 8(a); 18 U.S.C.A. § 1112. The Court of Appeals reviews de novo a district court’s dismissal of an indictment for failure to Cases that cite this headnote state an offense.

[6] Homicide

Nature of act or omission causing death Homicide What constitutes involuntary manslaughter, *585 Appeal from United States District Court for the in general District of South Dakota - Aberdeen Federal involuntary manslaughter statute extended to prohibit defendant's alleged conduct Attorneys and Law Firms of ingesting prescription, over-the-counter, and Counsel who presented argument on behalf of the appellant illegal drugs while pregnant, resulting in in was Ronald A. Parsons, Jr., U.S. Attorney, of Sioux Falls, SD. utero drug toxicity, which ultimately caused her In addition to Mr. Parsons, the following attorney(s) appeared newborn baby's death several hours after baby's on the appellant brief; Kevin Koliner, AUSA, of Sioux Falls, birth. 18 U.S.C.A. §§ 1112, 1841. SD. Cases that cite this headnote Counsel who presented argument on behalf of the appellee was Molly Quinn, Research and Writing Attorney, of Pierre, [7] Constitutional Law SD. The following attorney(s) appeared on the appellee brief; Judicial "reading into" or "out of" statutory Molly Quinn, Research and Writing Attorney, of Pierre, SD. language Before COLLOTON, SHEPHERD, and STRAS, Circuit A court interpreting a statute will not read an Judges. exception into a statutory provision where it does not exist. Opinion

Cases that cite this headnote SHEPHERD, Circuit Judge.

After the death of Samantha Flute’s newborn baby due to [8] Criminal Law combined drug toxicity *586 , the United States charged her Effect as to construction of statutes with one count of involuntary manslaughter committed within While the common law may inform the Indian Country, in violation of 18 U.S.C. §§ 1112 and 1153. parameters of a federal statutory offense, it may Flute filed a motion to dismiss the Indictment on the grounds do so only to the extent that it comports with the that the charged offense did not cover her or her conduct, federal statute. and the district court granted the motion. The United States appeals. Having jurisdiction pursuant to 28 U.S.C. § 1291, we Cases that cite this headnote reverse.

[9] Criminal Law Construction and Operation in General I. A court's task in interpreting a criminal statute is to interpret the statute as written. On August 19, 2016, Samantha Flute arrived at a Sisseton, South Dakota hospital in full-term labor. She gave birth at Cases that cite this headnote 38 weeks gestation to a fully developed baby boy, Baby Boy Flute. Baby Boy Flute was well developed, normal and [10] Criminal Law intact, with no obvious signs of trauma or injury, but died Construction and Operation in General approximately four hours after birth. At the time of admission, The task of a court interpreting a criminal Flute tested positive for cocaine and a number of prescription statute does not involve passing judgment on the and over-the-counter drugs. During efforts to resuscitate Baby wisdom of a given statutory provision or opining Boy Flute, Flute admitted that she had, shortly prior to his on how that statute may be used in the future. birth, taken three times the daily dose of Lorazepam, which had been prescribed to her during her only prenatal medical Cases that cite this headnote visit less than one week before Baby Boy Flute’s birth; she had snorted hydrocodone, which she believed to have been

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000067 2 United States v. Flute, 929 F.3d 584 (2019) laced with cocaine based on the feeling it gave her; and not be charged under § 1112 because an unborn child is ingested cough medicine. Flute admitted that she knew that not a “human being” for the purposes of that statute. Flute ingesting these substances was against the best interests of also asserted that the involuntary manslaughter statute was Baby Boy Flute, but that she did so because she needed to unconstitutionally vague as applied to her. get high. An autopsy confirmed that Baby Boy Flute had no anatomical cause of death, but noted the presence of several The district court granted the motion to dismiss the substances that had not been medically administered to Baby Indictment, holding that the involuntary manslaughter statute Boy Flute while he was alive. The forensic pathologist who did not apply to Flute because she was not within the class performed the autopsy concluded that Baby Boy Flute had of defendants under the statute. *587 In reaching this died from combined drug toxicity due to the substances Flute conclusion, the district court acknowledged that “Baby Boy ingested while Baby Boy Flute was still in utero. Flute is within the class of victims Congress historically intended to protect under 18 U.S.C. § 1112.” It nevertheless The government indicted Flute on one count of involuntary imported language from 18 U.S.C. § 1841 that bars manslaughter. The Indictment specifically charged the “prosecution ... of any woman with respect to her unborn following: child” to find that § 1112 did not reach Flute. The district court read this provision as “creat[ing] a class of persons who cannot be prosecuted under the federal criminal statutes for Between on or about August 19, 2016 injury caused to an unborn child,” and ultimately concluded and August 20, 2016, in Agency that the provision was “a clear statement from Congress that Village, in Indian country, in the the federal assault and murder statutes cannot be applied to District of South Dakota, Samantha the pregnant woman herself for any actions she takes with Flute, an Indian, unlawfully killed respect to her unborn child.” United States v. Flute, No. a human being, Baby Boy Flute, 1:17-CR-10017-CBK, 2017 WL 5495170, at *3 (D.S.D. Nov. without malice, in the commission of 14, 2017). The district court thus determined that, but for a lawful act in an unlawful manner the § 1841 exception for mothers, Flute would have been which might produce death. Such act an appropriate defendant. The district court did not address was committed in a grossly negligent Flute’s as-applied constitutional challenge. manner, with actual knowledge that her conduct was a threat to the life On appeal, the government asserts that the district court of another and with actual knowledge erroneously imported the § 1841 exception in determining that would reasonably enable her to that the federal involuntary manslaughter statute did not foresee the peril to which her act extend to the class of defendants of which Flute was a part subjected another, to wit: Samantha —mothers who inflicted injury upon their unborn while the Flute did unlawfully kill Baby child was still in utero, leading to the child’s death after birth. Boy Flute by ingesting prescribed Rather, the government contends that § 1841 is a separate, and over-the-counter medicines in unrelated, and uncharged statute without relevance to the a grossly negligent manner, and application of the manslaughter statute to actions of a mother did thereby commit the crime of against her unborn child. Flute responds that the district court involuntary manslaughter, in violation correctly applied § 1841 and also asserts that the Indictment of 18 U.S.C. §§ 1153 and 1112. should have been dismissed because Baby Boy Flute was not a human being when the injuries were sustained in utero and thus § 1112 does not criminalize Flute’s conduct. Indictment 1-2, Dist. Ct. Dkt. 2. Flute filed a motion to dismiss the Indictment. She admitted that she gave birth to an alive Baby Boy Flute, but argued that even if she had engaged in II. the conduct alleged in the Indictment, the conduct did not constitute the charged offense under federal law because § [1] [2] [3] [4] “We review de novo a district court’s 1112 was not intended to apply to a mother’s conduct with dismissal of an indictment for failure to state an offense.” respect to her unborn child. She also asserted that she could United States v. Steffen, 687 F.3d 1104, 1109 (8th Cir. 2012).

“An indictment is legally sufficient on its face if it contains every infant member of the species all of the essential elements of the offense charged, fairly homo sapiens who is born alive at any informs the defendant of the charges against which [s]he stage of development. must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to subsequent prosecution.” United States v. Fleming 8 F.3d 1 U.S.C. § 8(a). The Act further defines “born alive” as 1264, 1265 (8th Cir. 1993). In determining whether a charged crime encompasses the conduct alleged, the court engages in statutory interpretation; the “starting point in interpreting a the complete expulsion or extraction statute is always the language of the statute itself.” United from his or her mother of that member, States v. Jungers, 702 F.3d 1066, 1069 (8th Cir. 2013) at any stage of development, who after (quoting United States v. S.A., 129 F.3d 995, 998 (8th Cir. such expulsion or extraction breathes 1997)). or has a beating heart, pulsation of the umbilical cord, or definite movement Flute was indicted for involuntary manslaughter under 18 of voluntary muscles, regardless of U.S.C. § 1112, which criminalizes “the unlawful killing of a whether the umbilical cord has been human being without malice ... in the commission ... without cut, and regardless of whether the due caution and circumspection, of a lawful act which might expulsion or extraction occurs as a produce death” and under § 1153, which provides federal result of natural or induced labor, jurisdiction over crimes in Indian Country. The dispositive cesarean section, or induced abortion. questions on appeal are whether Baby Boy Flute is within the class of victims protected by § 1112 and whether Flute is within the class of defendants covered by § 1112. Id. § 8(b). Under this definition, the uncontested fact that Baby Boy Flute survived for several hours after his birth —complete expulsion or extraction from his mother—until A. succumbing to the drugs in his system would establish that he was “born alive.” Because he was born alive, under the plain [5] Turning to the first question, we assess whether Baby language of these statutes, Baby Boy Flute was a “human Boy Flute, who sustained injuries in utero that caused his being.” And because the language of the manslaughter statute death after birth, falls within the class of victims protected by plainly encompasses the death of a born-alive child—a child § 1112. Flute asserts that Baby Boy Flute does not because at the earliest possible moment that it exists outside of he was not a human being at the time the *588 conduct the womb—the statute necessarily extends to conduct that which ultimately caused death occurred. We disagree with occurred in utero and caused death to this born-alive child. this contention and agree with the district court that Baby Baby Boy Flute’s death and Flute’s conduct while pregnant Boy Flute is a proper victim under the federal involuntary thus fall within the ambit of the involuntary manslaughter manslaughter statute. statute.

In 2002, Congress passed the Born Alive Infants Protection As the district court noted, this conclusion is consistent with Act, which defines the term “human being” for all Acts of the common-law understanding of the “born alive” rule, Congress: whereby liability extended to the death of a child born alive related to injuries received in utero. See United States v. Spencer, 839 F.2d 1341, 1343 (9th Cir. 1988) (“[I]t was well- In determining the meaning of any established in common law that murder was the killing of one Act of Congress, or of any ruling, human being by another, and that an infant born alive that regulation, or interpretation of the later died as a result of fetal injuries was a human being. ... In various administrative bureaus and view of Congress’s intent to reflect the state and common-law agencies of the United States, the definition of murder when it passed the statute, and the state words “person”, “human being”, and common-law acceptance of infants who died subsequent “child”, and “individual”, shall include to birth due to fetal injuries as human beings, it seems clear

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000069 4 United States v. Flute, 929 F.3d 584 (2019) that Congress intended fetal infanticide to be included within taken against her own unborn child. 18 U.S.C. § 1841(c) the statutory definition of ‘murder’ under 18 U.S.C. § 1111.”). (3) (“Nothing in this section shall be construed to permit We need not resolve Flute’s argument that Baby Boy Flute the prosecution ... of any woman with respect to her unborn was not a “human being” while in utero to determine that child.”). Although neither 18 U.S.C. § 1112 nor 1 U.S.C. § Baby Boy Flute is within the class of victims protected by 8(a) contain a similar exception, the district court concluded § 1112 because application of the born-alive statute hinges that the exception in § 1841 was a “clear statement from on the time of the born-alive child’s death, not initial injury. Congress that the federal assault and murder statutes cannot We further note that Flute’s argument is inconsistent with be applied to the pregnant woman herself for any actions the common law understanding that homicide does not occur she takes with respect to her unborn child.” Flute, 2017 WL unless and until the victim actually dies; because death 5495170, at *3. completes the offense of manslaughter, the victim’s status at death is the determination rather than the victim’s status [7] The district court’s reliance on § 1841 was in error. Our when the injuries were sustained. See 1 Wayne R. LaFave, Court has previously determined § 1841 has no applicability Substantive Criminal Law § 1.2(c) (3d ed 2018); cf. 2 id. § or reach beyond its own provisions. Montgomery, 635 F.3d 14.1(e). Baby Boy Flute is thus within the class of victims at 1086 (rejecting government’s argument that attempted to described under § 1112, regardless of whether he was or read the definition of “unborn child” in 18 U.S.C. § 1841 into *589 was not (as Flute argues) a human being when he the definition of person in 18 U.S.C. § 1201(a) (kidnapping sustained injuries in utero. resulting in death) and noting that the definition of “unborn child” in § 1841 was limited to that section only). The words “[n]othing in this section” make clear that any limitations or exceptions in § 1841 apply only to § 1841 and cannot be used B. as a basis to impose a limitation on other, unrelated statutory [6] We next turn to whether Flute falls within the class of provisions. Had Congress intended the § 1841 exception for defendants recognized by § 1112; that is, whether the statute conduct of a mother to her own unborn child to apply more extends criminal culpability to a mother for actions against broadly, it would have expressly stated so. See Jungers, 702 her unborn child. Although the plain language of § 1112 and F.3d at 1075 (stating that “Congress knows how to craft the Born Alive Infants Protection Act plainly encompasses an exception ... when it intends one” (quoting Jonah R. v. Flute and her conduct, the district court erroneously utilized Carmona, 446 F.3d 1000, 1007 (9th Cir. 2006))). We will not a separate, unrelated, and uncharged statutory provision to read an exception into a statutory provision where it does not exclude Flute’s conduct from § 1112. The district court relied exist. Thus, § 1841 does not create an exception for Flute. on the Unborn Victims of Violence Act, which “recognizes unborn children as a class of victims not previously protected [8] [9] [10] The district court also based its holding on under federal law and criminalizes the killing or injuring its discussion of the potential ramifications of applying the of unborn children during the commission of certain federal federal involuntary manslaughter statute to Flute, particularly offenses.” United States v. Montgomery, 635 F.3d 1074, 1086 noting its reluctance to expand the statute to reach a wide (8th Cir. 2011). This Act creates a separate offense for an variety of conduct that, in the district court’s view, Congress individual who engages in any of a list of enumerated crimes, never intended to criminalize. *590 But such considerations including involuntary manslaughter, which results in “the are beyond the scope of our review. Our task in considering death of, or bodily injury ... to, a child, who is in utero at the issues of statutory interpretation is to do just that: interpret time the conduct takes place ....” 18 U.S.C. § 1841. Section the statute as written. See Conn. Nat’l Bank v. Germain, 1841 thus has the effect of expanding the reach of numerous 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 federal criminal statutes to protect unborn victims. (1992) “[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have Despite the fact that § 1841 expands criminal culpability stated time and again that courts must presume that a for crimes against the unborn, the district court relied on legislature says in a statute what it means and means in a an exception in this section to conclude that the involuntary statute what it says there.”). The language of the relevant manslaughter statute did not encompass Flute’s conduct as statutory provisions clearly states that the federal involuntary the mother of the unborn child. Section 1841 contains an manslaughter statute applies to a child born alive, who later exception that bars prosecution of a mother for actions succumbed to injury suffered in utero, even where that injury

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000070 5 United States v. Flute, 929 F.3d 584 (2019) was inflicted by the unborn child’s own mother. 1 Our task (“That issue was not decided below, however, and is a matter does not involve passing judgment on the wisdom of a given best left to the district court to consider in the first instance statutory provision or opining on how that statute may be on remand.”). used in the future. Those questions are best left for the legislative body, not the judicial branch. See Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 10 L.Ed.2d 93 III. (1963) (“[C]ourts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected The district court erred in dismissing the Indictment; to pass laws. ... We refuse to sit as a superlegislature to weigh accordingly, we reverse and remand with instructions to the wisdom of legislation ....” (internal quotation marks and reinstate the Indictment. On remand, the district court may citation omitted)). take up Flute’s as-applied due process challenge.

1 In the dissent’s view, the common law understanding of manslaughter demands a different result. While the COLLOTON, Circuit Judge, dissenting. common law may inform the parameters of a federal *591 The federal manslaughter statute was enacted in 1909. offense, it may do so only to the extent that it comports According to the United States Attorney, the government with the federal statute. See United States v. Castleman, has never before charged a mother with manslaughter based 572 U.S. 157, 163, 134 S.Ct. 1405, 188 L.Ed.2d on prenatal neglect that causes the death of a child. As 426 (2014) (“[W]e recognized the general rule that ‘a the district court observed, accepting the government’s common-law term of art should be given its established common-law meaning,’ except “ ‘where that meaning view of the statute could have broad ramifications for the does not fit.’ ” (quoting Johnson v. United States, 559 criminal liability of mothers based on their conduct while U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010))). pregnant. Resolving this significant issue of first impression The dissent’s recitation of the meaning of common law requires careful attention to the historical underpinnings of manslaughter “does not fit” with the express definitions the manslaughter statute. While I do not agree with the Congress provides. We thus rely only on the express district court’s particular statutory analysis, I do conclude that statutory language. Congress has not adopted a manslaughter statute that imposes The federal involuntary manslaughter statute criminalizes criminal liability on a mother for prenatal conduct that results the killing of a “human being,” which Congress has clearly in the tragic death of her child. I would therefore affirm the defined as including a child “born alive.” Baby Boy Flute, order dismissing the indictment. who died four hours after birth, was a human being for the purpose of the statute. He is thus a victim within the Manslaughter is a crime of long lineage. In the eighteenth scope of § 1112. No applicable exception for conduct of a century, Blackstone defined it as “the unlawful killing mother that causes injuries sustained in utero and resulting of another, without malice, either express or implied; in death after birth exists. Flute is thus an appropriate which may be either voluntarily, upon a sudden heat; or defendant within the scope of § 1112 and may be criminally involuntarily, but in the commission of some unlawful act.” charged for her conduct of abusing prescription and over- 4 William Blackstone, Commentaries *191. Commission of the-counter drugs, ultimately resulting in Baby Flute’s death an “unlawful act” included doing “an act, lawful in itself, after birth. We therefore conclude that the district court but in an unlawful manner, and without due caution and erroneously dismissed the Indictment on the basis that the circumspection.” Id. at *192. In 1909, Congress amended the federal involuntary manslaughter statute does not extend to federal criminal code to include the current definition, which cover Flute’s conduct. Because we conclude that the relevant aligns with Blackstone’s: statutes unambiguously encompass Flute and her conduct, we Manslaughter is the unlawful killing of a human being need not address her argument regarding the rule of lenity. without malice. It is of two kinds: See Maracich v. Spears, 570 U.S. 48, 76, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013). We also decline to address Flute’s as- Voluntary – Upon a sudden quarrel or heat of passion. applied challenge, and we leave to the district court the task of deciding that issue in the first instance. See, e.g., Williams v. Involuntary – In the commission of an unlawful act Target Stores, 479 F. App'x 26, 28 (8th Cir. 2012) (per curiam) not amounting to a felony, or in the commission

in an unlawful manner, or without due caution and of prenatal neglect by a mother that later results in the death circumspection, of a lawful act which might produce of a child born alive. death. The common law of England recognized that a third party 18 U.S.C. § 1112(a). 2 could be guilty of homicide for causing prenatal injuries to a mother or unborn child that resulted in the subsequent death 2 As enacted in 1909, the words defining involuntary of a child born alive. The principal debate in that situation manslaughter appeared in a slightly different order: “In concerned whether it was feasible to prove that prenatal acts the commission of an unlawful act not amounting to a caused the death of a live-born child. Lord Coke suggested felony, or in the commission of a lawful act which might that produce death, in an unlawful manner, or without due caution and circumspection.” Act of March 4, 1909, ch. 321, Pub. L. No. 60-350, § 274, 35 Stat. 1088, 1143. The [i]f a woman be quick with childe, and phrase “of a lawful act which might produce death” was by a Potion or otherwise killeth it in her moved to the end of the sentence in 1948. See Act of wombe; or if a man beat her, whereby June 25, 1948, ch. 645, § 1112(a), 62 Stat. 683, 756. A Reviser’s Note to the 1948 version stated that “[m]inor the childe dieth in her body, and she changes were made in phraseology.” 18 U.S.C. § 1112(a) is delivered of a dead childe, this is a reviser’s note (Supp. III 1950). great misprision, and no murder: but if the childe be born alive, and dieth of “It is a settled principle of interpretation that, absent other the Potion, battery, or other cause, this indication, Congress intends to incorporate the well-settled is murder: for in law it is accounted a meaning of the common-law terms it uses.” Sekhar v. United reasonable creature, in rerum natura, States, 570 U.S. 729, 133 S. Ct. 2720, 2724, 186 L.Ed.2d 794 when it is born alive. (2013) (internal quotation omitted). “Manslaughter” and its common-law definition are longstanding terms of art in the criminal law. 3 Edward Coke, Institutes of the Laws of England 50 (London, M. Flesher 1644). Others such as Hale and Lambard, “impressed by the difficulty of proving that the death of a [W]here Congress borrows terms of live-born child was occasioned by a defendant’s prenatal acts, art in which are accumulated the legal took a different view from Coke.” D. Seaborne Davies, Child- tradition and meaning of centuries Killing in English Law, 1 Modern L. Rev. 203, 209 (1937); of practice, it presumably knows and see 1 Matthew Hale, The History of the Pleas of the Crown adopts the cluster of ideas that were 433 (London, E. & R. Nutt and R. Gosling 1736); William attached to each borrowed word in Lambard, Eirenarcha, or Of the Office of the Justices of Peace the body of learning from which it 231 (London 1607 ed.) (1581). On the question whether proof was taken and the meaning its use of causation was legally possible, the law adopted Coke’s will convey to the judicial mind unless position. otherwise instructed.

Thus, in cases involving prenatal acts of a third party that caused the death of a child born alive, the common law Morissette v. United States, 342 U.S. 246, 263, 72 recognized a crime of murder or manslaughter. In Rex v. S.Ct. 240, 96 L.Ed. 288 (1952). We must presume that Senior (1832) 168 Eng. Rep. 1298; 1 Mood. C.C. 346, the Congress intended to incorporate the common-law meaning court upheld a manslaughter conviction for a male midwife of common-law terms that it employs, “unless the statute who negligently compressed the head of an infant in the otherwise dictates.” *592 Neder v. United States, 527 U.S. 1, act of birth, thereby causing the child’s death after he was 23, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotation completely born alive. The court in Regina v. West (1848) 175 omitted). In discerning the meaning of § 1112(a), then, it Eng. Rep. 329; 2 Car. & K. 784, similarly instructed a jury that is appropriate to consider the common-law history of the a defendant would be guilty of the murder of a child carried manslaughter offense and its application to the circumstance by another if she, “by a felonious attempt to procure abortion,

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000072 7 United States v. Flute, 929 F.3d 584 (2019) caused the child to be brought into the world, for which it was result of such neglect the child dies shortly after birth.” 13 not then fitted, and that the child did die in consequence of its The American and English Annotated Cases 43 (William M. exposure to the external world.” 175 Eng. Rep. at 330. Such McKinley et al. eds., 1909). The few American cases on point decisions led the Ninth Circuit to conclude that “it was well- followed the English common-law rule. In Brown v. State, established in common law that murder was the killing of one 95 Miss. 670, 49 So. 146 (1909), a woman gave birth in human being by another, and that an infant born alive that later the toilet room of a train; the baby dropped to the ground died as a result of fetal injuries was a human being.” United through the stool and died after uttering a faint cry. The States v. Spencer, 839 F.2d 1341, 1343 (9th Cir. 1988). prosecution maintained that the mother was guilty of “such criminal negligence as to constitute manslaughter,” but the When it came to prosecutions of a mother, however, Coke’s Supreme Court of Mississippi ruled that the mother was not view did not prevail. The issue arose in two prominent cases “guilty of any crime under the law.” Id. at 147. As late as under the law of England. In both decisions, courts ruled that 1954, the Supreme Court of Wyoming addressed a contention a mother was not liable for manslaughter based on prenatal by the State that a mother was guilty of manslaughter for neglect that resulted in the death of a child born alive. Regina her failure, prior to the birth of a child, to provide medical v. Knights (1860) 175 Eng. Rep. 952; 2 F. & F. 45, involved care for an infant to be born. State v. Osmus, 73 Wyo. 183, a mother who knew that she was about to give birth and 276 P.2d 469, 474-75 (1954). The court reported that “no wilfully abstained from taking the necessary precautions to case decided in this country has been found going to the preserve the life of the child after its birth. The prosecution length of the contention of the state,” and then applied the urged that where the child died as a consequence of the alleged common-law rule of Knights and Izod that a mother is not criminal neglect, the mother would be guilty of manslaughter. guilty of manslaughter based on prenatal neglect causing the 175 Eng. Rep. at 953. The court, however, had “never heard subsequent death of a child born alive. Id. at 475 (emphasis such a *593 doctrine” and ruled that the mother could not be added). convicted of manslaughter. Id. The British Parliament in 1874 then considered proposals to provide for the punishment of a The 1909 federal manslaughter statute is best understood mother guilty of culpable prenatal neglect resulting in death, as incorporating this common-law meaning. “Unlike the but no such provision was enacted. Davies, supra, at 210. homicide statutes in some modern penal codes that specifically define each element of the various degrees of Thereafter, the decision in Rex v. Izod (1904) 20 Cox C.C. criminal homicide, the federal homicide statutes simply adopt 690 (Eng.), reaffirmed the rule of Knights. The court rejected the language of the traditional common-law offenses of the prosecution’s theory that “failure on the part of a woman murder and manslaughter.” United States v. Browner, 889 to make proper provision for her expected confinement, F.2d 549, 551 (5th Cir. 1989) (citations omitted). The Ninth resulting in the complete birth and subsequent death of a Circuit, in upholding the murder conviction of a man whose child, amounts to manslaughter.” Id. at 691. To establish attack on a pregnant woman caused the subsequent death manslaughter by a mother, the court ruled, “neglect must be of a child born alive, relied on “Congress’s intent to reflect subsequent to the birth.” Id. One leading treatise stated the the state and common-law definition of murder” when it common-law rule in the early twentieth century: “The mere passed the homicide statutes in 1909. Spencer, 839 F.2d at failure on the part of a woman to make proper provision for 1343. Accord United States v. Serawop, 410 F.3d 656, 666 her expected confinement, resulting in the complete birth and (10th Cir. 2005) (concluding that the federal manslaughter subsequent death of a child, is not sufficient in itself to warrant statute should be read “in accordance ... with the history of a conviction of manslaughter.” 1 William Oldnall Russell, the common law”); United States v. Sargent, 18 M.J. 331, A Treatise on Crimes and Misdemeanors 675-76 (William 336 (C.M.A. 1984) (explaining that the Manual for Courts- Feilden Craies & Leonard William Kershaw eds., 7th ed. Martial *594 adopted the federal statutory definition of 1910). manslaughter, which is “declaratory of the common law”). The limited legislative history of the provision, insofar as The common law in early America was no different. A it should be considered, suggested no intent to expand the compilation of American and English cases through 1909 meaning to encompass a mother’s prenatal acts: Manslaughter stated the law: “The wilful and negligent omission of a mother was “defined and classified in language similar to that to be to care for herself or to make preparations for the birth found in the statutes of a large majority of the States.” H.R. of a child will not amount to manslaughter, although as a Rep. No. 2, 60th Cong., 1st Sess., at 24 (1908).

and the common-law meaning fit hand in glove. This case Later enactments did not change the meaning of manslaughter no doubt depends on the “express statutory language,” ante, in § 1112(a). The Born-Alive Infants Protection Act, enacted at 590 n.1, but the question is what the language means. in 2002, affirms that the term “human being” in the As a unanimous Supreme Court reaffirmed just last month, manslaughter statute includes “every infant member of the “[w]hen a statutory term is ‘obviously transplanted from species homo sapiens who is born alive at any stage of another legal source,’ it ‘brings the old soil with it.’ ” Taggart development.” 1 U.S.C. § 8(a). The common law, however, v. Lorenzen, ––– U.S. ––––, 139 S. Ct. 1795, 1801, ––– already recognized that an infant born alive is a human being L.Ed.2d –––– (2019) (quoting Hall v. Hall, ––– U.S. ––––, who could be the victim of manslaughter, yet the law did not 138 S. Ct. 1118, 1128, 200 L.Ed.2d 399 (2018) (quoting Felix make a mother guilty of manslaughter based on prenatal acts. Frankfurter, Some Reflections on the Reading of Statutes, 47 The 2002 statute does not address a mother’s liability under Colum. L. Rev. 527, 537 (1947))). the manslaughter statute. The Unborn Victims of Violence Act of 2004, 18 U.S.C. § 1841, likewise does not broaden the In sum, the common-law meaning of manslaughter did not manslaughter statute beyond its original meaning. encompass prenatal neglect by a mother that later caused the death of her child born alive. Research reveals no decision The majority responds that the common-law meaning of in England or the United States before 1909 holding that a manslaughter “does not fit” with the federal manslaughter mother’s prenatal neglect constituted manslaughter. Congress statute. Ante, at 590 n.1. Of course, “we do not assume that in 1909 adopted the common-law definition of manslaughter a statutory word is used as a term of art where that meaning in § 1112(a); nothing in the statute dictates that its scope is does not fit,” and we “do not force term-of-art definitions into broader than the common-law meaning. No federal statute contexts where they plainly do not fit and produce nonsense.” enacted after 1909 has expanded the manslaughter statute to Johnson v. United States, 559 U.S. 133, 139-40, 130 S.Ct. encompass a mother’s prenatal neglect. 1265, 176 L.Ed.2d 1 (2010) (internal quotation omitted). So when Congress created the new statutory term “violent This case raises profound moral and policy questions, but felony” and defined it to mean a crime with an element of it requires an Act of Congress to extend federal criminal using “physical force” against another person, the common- liability to a mother whose drug use during *595 pregnancy law meaning of “force” would have been a “comical misfit.” causes the death of her child. I conclude that under present Id. at 139, 130 S.Ct. 1265. That was so because the common- law, the government’s allegations against Samantha Flute do law meaning of “force” encompassed “even the slightest not state an offense, and the district court’s order dismissing offensive touching,” which obviously was not “violent.” Id. the indictment should be affirmed. at 145, 130 S.Ct. 1265. But here, Congress did not coin any new term; it simply criminalized the traditional offense of All Citations “manslaughter” and gave it the common-law definition that dates to Blackstone. In that situation, the statutory words 929 F.3d 584

124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Similarly, we should be cautious in conflat- UNITED STATES of America, ing the substantive analysis of a claim of Plaintiff-Appellee, qualified immunity with the question v. whether we have jurisdiction to consider that claim. Napoleon FOSTER, Defendant- Appellant. As I already have noted, I agree with my colleagues that this case comes to us in No. 17-3236 an unfinished state, a condition that im- United States Court of Appeals, peded significantly the ability of counsel to Seventh Circuit. present the appeal to us and that makes careful decision-making on our part diffi- ARGUED JULY 5, 2018 cult. Given the state of the record, the DECIDED AUGUST 31, 2018 appropriate course is to pretermit the Background: Defendant was convicted in question of appellate jurisdiction and re- the United States District Court for the mand the case to the district court for an Northern District of Illinois, Robert W. individualized determination of qualified Gettleman, J., of armed robbery of a finan- immunity for each of the defendants.1 Once cial institution, possession of a firearm in we have a more fulsome analysis, we then furtherance of a crime of violence, and can consider whether we have jurisdiction possession of a firearm after being convict- as to the qualified-immunity claim of each ed of a felony. He appealed, and the Court defendant and assess seriously whether a of Appeals, Hamilton, Circuit Judge, 652 prong-by-prong approach to jurisdiction is F.3d 776, affirmed. On resentencing follow- appropriate. ing vacation of defendant’s sentence because his prior burglary conviction no longer qualified as predicate offense under the Armed Career Criminal Act (ACCA), the District Court, Gettleman, J., enhanced , defendant’s sentence based on bomb threat made by co-defendant, and defendant appealed. Holding: The Court of Appeals, Scudder, Circuit Judge, held that defendant who was convicted of using, carrying, or possessing firearm in relation to crime of vio-

1. We could ‘‘undertake [the] cumbersome re- violate[d] that right.’’ Volkman v. Ryker, 736 view of the record,’’ Whitlock v. Brueggemann, F.3d 1084, 1090 (7th Cir. 2013) (internal quo- 682 F.3d 567, 574 (7th Cir. 2012) (quoting tation marks omitted). But because the ability Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. of counsel to brief the case in an effective 2151, 132 L.Ed.2d 238 (1995)), here and de- manner may well have been impeded by the termine whether, taking the facts in the light district court’s failure, the far more prudent most favorable to Mr. Williams’s estate, each individual officer violated Mr. Williams’s course is to require the district court to un- Fourth Amendment rights and whether the dertake the initial assessment. This approach contours of the Fourth Amendment right were is especially advisable when this process well sufficiently clear that each individual officer may alter the district court’s determination ‘‘would understand that what he [wa]s doing with respect to at least some defendants.

000075 U.S. v. FOSTER 655 Cite as 902 F.3d 654 (7th Cir. 2018)

lence, i.e., the armed robbery of financial Appeal from the United States District institution, could not have his advisory Court for the Northern District of Illinois, Guidelines sentence enhanced based on Eastern Division, No. 1:08-cr-00880-1 — added danger resulting from threat to ex- Robert W. Gettleman, Judge. plode a bomb made by one of the other robbers. Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, for Vacated and remanded. Plaintiff–Appellee.

1. Sentencing and Punishment O661 Lisa Lundell Wood, Attorney, Blegen & Courts approach interpretation of the Garvey, Chicago, for Defendant–Appellant. Sentencing Guidelines as they would questions of statutory interpretation, by start- Before WOOD, Chief Judge, and ing with the text of the Guidelines. SCUDDER and ST. EVE, Circuit Judges. U.S.S.G. § 1B1 et seq. SCUDDER, Circuit Judge. 2. Sentencing and Punishment O665 Sentencing Guidelines commentary is For his part in the armed robbery of a authoritative, unless it violates the Consti- credit union, Napoleon Foster was convict- tution or a federal statute, or is inconsis- ed of robbing a financial institution, using tent with, or a plainly erroneous reading a firearm during the robbery, and possess- of, that guideline. U.S.S.G. § 1B1 et seq. ing a firearm as a felon. The district court sentenced Foster as an armed career crim- 3. Sentencing and Punishment O665 inal but later vacated the sentence because Revisions to the Sentencing Guide- one of his prior convictions no longer quali- lines can occur through amendments to the fied as a predicate offense. On appeal from Guidelines commentary, including in re- resentencing, Foster argues that the dis- sponse to a prior judicial construction of a trict court erred in its determination of the particular guideline. U.S.S.G. § 1B1 et advisory guidelines range applicable to the seq. robbery offense by imposing an enhance- 4. Sentencing and Punishment O905 ment under U.S.S.G. § 2B3.1(b)(2)(F) for Defendant who was convicted of using, his coconspirator’s threat to detonate a carrying, or possessing firearm in relation bomb during the robbery. Relying on the to crime of violence, i.e., the armed rob- language used by the Sentencing Commis- bery of financial institution, could not have sion in Application Note 4 to U.S.S.G. his advisory Guidelines sentence enhanced § 2K2.4, he contends that the sentence he based on added danger resulting from received under 18 U.S.C. § 924(c) accounts threat to explode a bomb made by one of for the bomb threat and thus the threat the other robbers; this threat, which was cannot also enhance the advisory range for made during robbery to further the rob- the robbery conviction. We agree and bers’ escape, was reasonably foreseeable to therefore vacate Foster’s sentence and re- defendant and qualified as ‘‘relevant con- mand for resentencing. duct’’ to the robbery, for purposes language in Guidelines commentary preclud- I ing application of enhancement based on such relevant conduct. 18 U.S.C.A. In January 2006, Foster hatched a plan § 924(c); U.S.S.G. § 2K2.4. with Asia Hill to rob a credit union in

000076 656 902 FEDERAL REPORTER, 3d SERIES

Riverdale, Illinois. Hill then recruited Prior to resentencing, the Probation Of- Charles Anderson, and the trio met on the fice revised its computation of the advisory day of the robbery to review the plan. guidelines range. The revised range re- Foster supplied Hill and Anderson with flected a two-level enhancement pursuant guns to use during the robbery, drove to U.S.S.G. § 2B3.1(b)(2)(F) based on both them to the credit union, and waited near- Hill’s threat to shoot the teller and by while they went inside. During the rob- Anderson’s threat to detonate a bomb. bery, Hill directed a teller to empty the Foster objected, arguing that Application cash drawers and threatened to shoot her Note 4 to U.S.S.G. § 2K2.4 prohibited any if she pressed any alarms. Meanwhile, death-threat enhancement where, as here, Anderson held another employee at gun- a defendant also received a sentence for point and ordered him to open and empty committing a firearms offense under 18 the vault. Before leaving, Anderson also U.S.C. § 924(c). threatened to detonate a bomb: ‘‘Nobody Pointing to our decision in United States move for ten minutes. I got a bomb and I’ll v. White, 222 F.3d 363 (7th Cir. 2000), the blow this place up.’’ Anderson and Hill district court determined the two-level en- made off with approximately $250,000 and hancement was authorized as a legal mat- met Foster a short distance from the cred- ter. The sentencing judge also determined it union. The three later split the proceeds, the enhancement was warranted on the with Foster pocketing around $100,000. facts, as Foster effectively ordered A grand jury indicted Foster for com- Anderson and Hill to ‘‘terrorize this bank’’ mitting an armed robbery of the credit and thus could have foreseen a death union, 18 U.S.C. § 2113(a), (d); using a threat being conveyed during the robbery. firearm during a crime of violence, id. The resulting advisory guidelines range § 924(c)(1)(A)(i); and possessing a firearm was 97 to 121 months for the robbery and as a felon, id. § 922(g)(1). The case pro- felon-in-possession counts, reflecting a to- ceeded to trial, and a jury found Foster tal offense level of 28 and a criminal histo- guilty on all counts. ry category of III. Without the death- The district court sentenced Foster to threat enhancement, the total offense level 284 months’ imprisonment. We upheld the would have been 26, which, in turn, would convictions and sentence on direct appeal. have reduced the advisory range to 78 to United States v. Foster, 652 F.3d 776 (7th 97 months. The district court imposed con- Cir. 2011). Invoking 28 U.S.C. § 2255, Fos- current sentences of 121 months for the ter later moved to vacate his sentence, robbery and felon-in-possession convictions contending that resentencing was warrant- to be followed by the 60-month mandatory ed because, in the wake of Samuel John- consecutive term for the § 924(c) convic- son v. United States, ––– U.S. ––––, 135 tion, yielding a total sentence of 181 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his months’ imprisonment. prior conviction for burglary no longer qualified as a predicate offense under the II Armed Career Criminal Act. Once the Su- A preme Court decided Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 195 Foster renews his challenge to the two- L.Ed.2d 604 (2016), the government con- level death-threat enhancement he re- ceded the point, and the district court or- ceived pursuant to U.S.S.G. dered resentencing. § 2B3.1(b)(2)(F). In doing so, he focuses

000077 U.S. v. FOSTER 657 Cite as 902 F.3d 654 (7th Cir. 2018) on whether Anderson’s threat to detonate Application Note 4. As the Supreme Court a bomb during the robbery supported the has explained, we treat such commentary enhancement because, as the government as ‘‘authoritative unless it violates the Con- concedes, our decision in United States v. stitution or a federal statute, or is inconsis- Katalinic prevents Hill’s threat to shoot tent with, or a plainly erroneous reading the teller with a gun from serving as the of, that guideline.’’ Stinson v. United basis for the enhancement. See 510 F.3d States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 744, 748 (7th Cir. 2007) (‘‘We choose to L.Ed.2d 598 (1993). So, too, has the Court adopt the rule used by our sister circuits recognized that revisions to the guidelines that death threats related to the firearm can occur through amendments to the forming the basis of the § 924(c) sentence commentary, including in response to a cannot be double counted by increasing the ‘‘prior judicial construction[ ] of a particu- base offense level for the underlying lar guideline.’’ Id. at 46, 113 S.Ct. 1913. crime.’’). Foster does not contend that the bomb threat somehow fell short of consti- [4] By its terms, Application Note 4 to tuting a death threat. His point is a legal § 2K2.4 provides: one: relying on Application Note 4 to If a sentence under this guideline is U.S.S.G. § 2K2.4, he contends that the imposed in conjunction with a sentence district court was not permitted to impose for an underlying offense, do not apply the enhancement ‘‘for any weapon- or ex- any specific offense characteristic for plosive-related conduct—be it part of the possession, brandishing, use, or dis- underlying offense or relevant conduct— charge of an explosive or firearm when when that defendant is also convicted un- determining the sentence for the under- der § 924(c).’’ lying offense. A sentence under this [1] We approach an interpretation of guideline accounts for any explosive or the Sentencing Guidelines as we would a weapon enhancement for the underlying question of statutory interpretation—by offense of conviction, including any such starting with the text of the guidelines. enhancement that would apply based on See United States v. Vizcarra, 668 F.3d conduct for which the defendant is ac- 516, 520 (7th Cir. 2012). Here, no particu- countable under § 1B1.3 (Relevant Con- lar guideline answers the question present- duct). ed. The source of the two-level death- The language of Application Note 4 pre- threat enhancement is U.S.S.G. cluded the district court’s imposition of § 2B3.1(b)(2)(F), a subsection of the of- the two-level enhancement challenged by fense guideline applicable to Foster’s Foster. The note starts with an instruction armed robbery conviction under 18 U.S.C. not to apply ‘‘any specific offense charac- § 2113(a), (d). But neither the text of nor teristic for possession, brandishing, use, or commentary to § 2B3.1 suggests a limit on discharge of an explosive TTT when deter- imposing the enhancement in conjunction mining the sentence for the underlying of- with a sentence under § 924(c). The same fense’’—here, armed robbery of a financial is true of the text of U.S.S.G. § 2K2.4, the institution. By its terms, the two-level guideline applicable to violations of death-threat enhancement in § 924(c). § 2B3.1(b)(2)(F) is a ‘‘specific offense [2, 3] The controlling guidance comes characteristic’’ of a robbery. from the Sentencing Commission’s com- Furthermore, during the course of the mentary to § 2K2.4, and, more specifically, armed robbery, Anderson announced that

000078 658 902 FEDERAL REPORTER, 3d SERIES he had a ‘‘bomb’’ and referred to the bomb the bomb threat could be applied to the as part of telling those present not to offense level for purposes of computing the ‘‘move for ten minutes,’’ lest he ‘‘blow this advisory range applicable to Foster’s place up.’’ Anyone present surely thought armed robbery conviction. Anderson was using an explosive to convey a death threat. On these facts, Anderson’s statements sufficed to constitute ‘‘use’’ of B an ‘‘explosive’’ within the meaning of Ap- The path that led the Commission to plication Note 4. Application Note 4 as it stands today rein- The second sentence of Application Note forces our conclusion. In 2000, the Com- 4 proves this construction. That sentence mission revised the note, previously locat- turns the focus to whether the conduct ed at Application Note 2 to U.S.S.G. giving rise to ‘‘any explosive or weapon § 2K2.4. (We refer to the note as Applica- enhancement’’ constitutes relevant conduct tion Note 4 throughout this opinion and within the meaning of § 1B1.3. Because point out when we are discussing the earli- Anderson’s bomb threat was made during er version.) The Commission explained the robbery to further his and Hill’s es- that it ‘‘intended [the 2000 amendment] to cape and, as the district court found, was avoid the duplicative punishment that re- ‘‘reasonably foreseeable’’ to Foster, it was sults when sentences are increased under ‘‘relevant conduct’’ to the robbery. See both the statutes and the guidelines for U.S.S.G. § 1B1.3(a)(1)(B). substantially the same harm’’ and to ‘‘con- The text of Application Note 4 makes form application of guideline weapon en- plain the consequence of our reading: Fos- hancements with general guideline princi- ter’s § 924(c) sentence already ‘‘accounts ples.’’ U.S.S.G. Supp. to App. C, Amend. for any explosive or weapon enhancement’’ 599 (2000). for the underlying robbery, including any enhancement that would apply based on Comparing the language of the pre- the relevant conduct of Anderson’s bomb amendment application note and the post- threat. Accordingly, no enhancement for amendment application note is instructive:

000079 U.S. v. FOSTER 659 Cite as 902 F.3d 654 (7th Cir. 2018)

The additional language in the revised In issuing the amendment, the Commis- application note prohibits ‘‘any explosive sion identified a Ninth Circuit case, United or weapon enhancement’’ based on rele- States v. Willett, 90 F.3d 404 (9th Cir. vant conduct where a defendant also re- 1996), as an example of a misinterpretation ceives a sentence under § 924(c). U.S.S.G. of the application note. See U.S.S.G. Supp. § 2K2.4 n.4 (emphasis added). The amend- to App. C, Amend. 599. Pointing to Willett, ed language broadens the inquiry under the Commission explained, ‘‘offenders have the application note to all relevant conduct: received both the mandated [§ 924(c)] pen- if the enhancement is based on relevant alty and a guideline weapon enhancement conduct, it is precluded. The amended note in circumstances in which the guidelines contains no indication that the Commission generally would require a single weapon intended to reach only those enhancements enhancement.’’ Id. In Willett, the Ninth imposed for the same conduct underlying Circuit concluded that an enhancement for the § 924(c) conviction. possessing a knife and silencer was per-

000080 660 902 FEDERAL REPORTER, 3d SERIES mitted under the application note because Nor does the government have an an- possessing those weapons in addition to a swer to the Sentencing Commission’s stat- gun ‘‘poses a greater risk,’’ so the enhance- ed objective of amending Application Note ment ‘‘was necessary to reflect fully the 4 to change the outcome of cases like wrongfulness of the defendant’s conduct.’’ Willett. Recall that Willett did not involve 90 F.3d at 408. The Ninth Circuit has since any real bombs or other explosive devices. concluded that Willett is no longer good To the contrary, the offense conduct that law in light of the amendment to the appli- led to the imposition of a two-level en- cation note. United States v. Aquino, 242 hancement for the possession of a danger- F.3d 859, 864 (9th Cir. 2001) (‘‘It is now ous weapon there was the defendant’s beyond question that where a defendant is possession of a silencer and a knife. See convicted of a § 924(c) violation, his sen- Willett, 90 F.3d at 408. If the govern- tence may not be enhanced at all for any ment’s position were correct, we would conduct for which the defendant is ac- have expected the Commission to leave countable within the scope of relevant con- the outcome of Willett alone, as Charles duct under U.S.S.G. § 1B1.3.’’). Willett’s possession of the knife—which was not related to his § 924(c) conviction—could have been seen as indepen- C dently sufficing to warrant the two-level The government presses a different con- enhancement. But the Commission chose a struction of Application Note 4. It argues different course, making plain that its that a death-threat enhancement triggered 2000 amendment was designed to preclude by conduct separate from the conduct pun- such enhancements in future cases. The government’s reading of Application Note ished by § 924(c) is permissible. It urges 4 as limited to the firearm (or explosive) us to uphold the district court’s imposition underlying a defendant’s § 924(c) convic- of the death-threat enhancement here by tion cannot be squared with the broad and concluding that ‘‘[n]either Guideline expanded limitations intended by the § 2K2.4 nor its application note expressly Commission through its 2000 amendment. precludes a court from applying an en- Turning back to Foster’s case, Application hancement for a threat of death where the Note 4 and its commentary require us to threat is not directly related to the firearm decline the government’s invitation to dis- for which [the] defendant received a man- tinguish between threats ‘‘directly related’’ datory sentence under § 924(c).’’ to the firearm underlying his § 924(c) con- But the government’s proposed distinc- viction and threats unrelated to the fire- tion between conduct related to the arm in the § 924(c) conviction. § 924(c) offense and unrelated conduct The government also argues that the cannot be squared with the text of the Commission’s limitation extends only to amended note, which broadly prohibits enhancements for the ‘‘possession, brand- ‘‘any explosive or weapons enhancement’’ ishing, use, or discharge of an explosive or based on relevant conduct where a defen- firearm.’’ U.S.S.G. § 2K2.4 n.4 (emphasis dant also receives a sentence under added). Quick to concede that Anderson § 924(c). U.S.S.G. § 2K2.4 n.4 (emphasis and Hill’s use of guns during the robbery added). The breadth of the Commission’s cannot provide the basis for a death-threat language in the amendment does not allow enhancement to Foster’s sentence—as any for the limitation proposed by the govern- other conclusion would run afoul of our ment. conclusion in Katalinic—the government

000081 U.S. v. FOSTER 661 Cite as 902 F.3d 654 (7th Cir. 2018)

contends that nothing about the offense possessed a real bomb. On the govern- conduct here involved the ‘‘use’’ of any ment’s reading, there unquestionably ‘‘explosive.’’ Yes, Anderson conveyed a would be a use of an explosive and thus death threat by warning that he had a the limitation in Application Note 4 would bomb and would blow up the credit union prevent imposition of the death-threat en- if anyone moved, but that conduct, the hancement in § 2B3.1(b)(2)(F). It makes government’s reasoning runs, does not en- little sense to permit the enhancement tail the use of any explosive, just a refer- here, where nobody had a bomb but re- ence to one. ferred to one as part of leveling a death The government roots part of its argu- threat, but not where the offenders went ment in the history of Application Note 4. to the added—and more blameworthy— Prior to the amendment, the application effort of acquiring a real bomb and then note specifically listed the enhancement using it during a robbery. for making a death threat, Consider another example. Application § 2B3.1(b)(2)(F), as among the enhance- Note 4 makes plain (in a paragraph just ments for possession, use, or discharge of under the one at issue here) that, in cir- an explosive or firearm. The 2000 amend- cumstances where a defendant is convicted ment removed this reference, leading the of a drug offense and a § 924(c) violation, government to contend that ‘‘any explosive the drug sentence cannot be enhanced for or weapon enhancement’’ in the amended any use of violence or credible threat to note no longer encompasses every death- use violence. The limitation applies broad- threat enhancement. ly, requiring no nexus to the § 924(c) of- We remain unpersuaded that the offense fense conduct. It is incoherent to conclude conduct here did not involve the ‘‘use’’ of that the Commission intended to foreclose an ‘‘explosive.’’ As a preliminary matter, altogether threat enhancements in drug our decision in Katalinic precludes the cases but to permit them in robbery cases argument that the removal of the applica- so long as the facts show that the threat in tion note’s specific reference to a robbery case did not involve the same § 2B3.1(b)(2)(A)–(F) means that ‘‘any ex- firearm or explosive underlying the plosive or weapon enhancement’’ no longer § 924(c) offense. The better conclusion is encompasses a death threat. See 510 F.3d that the Commission intended Application at 747 (discussing the amendment as it Note 4 to apply broadly, including where, related to death-threat enhancements and as here, application of the relevant conduct concluding ‘‘[t]he Commission was presum- rule shows that the threat to blow up the ably aware of the caselaw prohibiting credit union occurred during the course of death-threat adjustments in this context the armed robbery. and tacitly approved the interpretation by not criticizing it’’). And for good reason: we III know of nothing suggesting that the Sen- That would be the end of this appeal if tencing Commission intended to narrow we were writing from a blank slate. Not (and not broaden) the reach of the limita- so, though, and far from it. In several prior tion found in Application Note 4. cases we have encountered Application Moreover, the government’s reading in- Note 4 and suggested different interpreta- vites an absurd result. Take, for example, tions—some consistent with each other an armed robbery like the one that oc- and others not. The time has come to land curred here but where Anderson or Hill on a unified position. Before issuing this

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opinion, we circulated it to the full court § 924(c) conviction. On this understanding, under Circuit Rule 40(e). No judge in ac- we later agreed with White that he was tive service requested to hear the case en eligible for a sentence reduction based on banc. the Commission’s 2000 amendment: The beginning point is our 2000 decision Because White’s use of the fake bomb in United States v. White, 222 F.3d 363 was relevant conduct to the underlying (7th Cir. 2000) (White I). Rodney White bank robbery offense, see U.S.S.G. robbed a bank using a gun and a fake § 1B1.3(a)(1)(A), the § 924(c) conviction bomb. A conviction under § 924(c) fol- ‘‘account[ed] for’’ the possibility of an lowed, and, akin to Foster here, White upward adjustment under received a two-level enhancement to his § 2B3.1(b)(2)(E). Had the amendment robbery sentence for using a fake bomb. been in place at the time of White’s Id. at 372–73. He challenged the enhance- sentencing imposing the upward adjustment as impermissible double counting, ment would have been forbidden. citing U.S.S.G. § 2K2.4 n.2 (1998), the ear- United States v. White (White II), 309 F. lier version of the application note that App’x 7, 9 (7th Cir. 2009). prohibited applying ‘‘any specific offense White II supports Foster’s contention characteristic for the possession, use, or that the district court erred when impos- discharge of an explosive or firearm’’ for ing an enhancement to his robbery sen- the underlying offense if the defendant tence for the bomb threat. In clear and also was convicted under § 924(c). Id. at precise terms, we recognized that the 373 & n.4. We concluded that a defendant amendment to the application note abro- like White could receive both a § 924(c) gated the distinction made in White I be- sentence and a sentencing enhancement as tween enhancements based on the same long as they were imposed for ‘‘different weapon and conduct underlying the underlying conduct.’’ Id. at 373. We rea- § 924(c) conviction, and enhancements soned that using a fake bomb was not the based on different underlying conduct. See same conduct as using a gun: they are id. Just as Application Note 4 forbids an separate ‘‘offenses’’ under § 924(c) that enhancement for using a fake bomb be- carry substantially different penalties. Id. cause it is already taken into account by at 375. Tracking the Ninth Circuit’s rea- the § 924(c) conviction, an enhancement soning in Willett, we explained that there for making a bomb threat—another ‘‘use’’ was a difference in the degree and kind of of a bomb—would be similarly prohibited. harm posed by a bomb versus a gun. Id. This analysis is clouded, however, by Thus, White had not been punished for the three of our decisions issued after the 2000 bomb ‘‘to the extent Congress intended,’’ amendment. In those decisions, we recog- and the district court was free to enhance nized and reinforced the distinction made the robbery sentence for that conduct. Id. in White I between enhancements for the We decided White I before the Sentenc- same weapon and conduct underlying a ing Commission amended Application Note § 924(c) conviction and enhancements for 4. The Commission’s specific reference to different underlying conduct without di- Willett as an outcome the amendment was rectly addressing whether that division intended to avoid was significant because withstands the amendment to Application there, as in White I, the enhancement was Note 4. based on at least one weapon (a knife) In Katalinic, we held that a death- unrelated to the conduct underlying the threat enhancement cannot be imposed for

000083 U.S. v. FOSTER 663 Cite as 902 F.3d 654 (7th Cir. 2018)

‘‘death threats relating to the firearm ward conclusion that enhancements for forming the basis of the § 924(c) sen- death threats related to the firearm under- tence.’’ 510 F.3d at 748. Our conclusion lying the § 924(c) conviction are prohibit- reflected an interpretation of the amended ed—an outcome observed to be consistent application note and reliance on White I’s with White I’s focus on whether the en- distinction between enhancements arising hancement in question reflected the same from § 924(c) offense conduct and those or different conduct vis-`a-vis the § 924(c) reflecting conduct unrelated to the use of a offense conduct. And Eubanks relied on firearm. See id. at 747 (describing White I dicta in White I about treating all firearms as permitting a weapons-related enhance- the same more than it relied on White I’s ment to a robbery sentence because the holding about treating bombs and guns use of a bomb was ‘‘different underlying differently. conduct’’ than the conduct leading to a § 924(c) firearms conviction). We take this opportunity to harmonize our caselaw. To the extent that White I In a subsequent nonprecedential deci- drew a line between enhancements based sion, we remarked that Katalinic had ‘‘re- on the same and different underlying con- affirmed’’ White I after the 2000 amend- duct, that distinction does not survive the ment to Application Note 4. United States Commission’s amendment to Application v. Moses, 284 F. Appx 361, 363 (7th Cir. Note 4 where the conduct is relevant con- 2008). But we did not decide in Moses duct. But we need not overturn Katalinic, whether the amended note prohibited an Moses, and Eubanks because, although increase to a robbery sentence for using a they invoke White I approvingly, none de- fake bomb when the defendant already pend on White I’s pre-amendment reason- had a § 924(c) conviction for using a fire- ing. arm during the same robbery. Id. Instead, we upheld the sentence in question be- Our conclusion flows from the language cause the district court had alternatively the Commission used in amending Applica- justified it under the statutory sentencing tion Note 4. It instructs that a district factors. Id. Most recently, in United States court is not permitted to impose any explo- v. Eubanks, 593 F.3d 645, 649–50 (7th Cir. sive or weapon enhancement, whether it is 2010), we employed White I’s framework part of the underlying offense or relevant to assess whether an enhancement for us- conduct, when a defendant is also sen- ing a B.B. gun to pistol whip a victim tenced under § 924(c). In so holding, our during a robbery was permitted by the decision today in no way precludes consid- application note. We concluded that the eration of that conduct at sentencing as a enhancement could not be applied because factor under 18 U.S.C. § 3553(a). the defendant’s § 924(c) conviction for a firearm accounted for all of the guns (in- IV cluding the B.B. gun) he and his codefendants used during a robbery. Id. at 650. Accordingly, the district court should So, although we have cited White I fa- not have applied the enhancement for vorably in a few subsequent decisions, making a death threat to Foster’s sentence their holdings did not depend on its contin- for the underlying robbery count because ued validity. Moses was able to avoid the Application Note 4 instructs that the question about the scope of Application threat was already accounted for by his Note 4. Katalinic reflected a straight-for- § 924(c) sentence. We therefore VACATE

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Foster’s sentence and REMAND for re- to question about whether he wished to sentencing. speak with detective; (3) money laundering conviction was sufficiently supported by evidence; and , (4) any error in admission of challenged evidence was harmless beyond reasonable doubt. UNITED STATES of America, Affirmed. Plaintiff-Appellee, v. 1. Automobiles O349(2.1) Daniel STEWART, Defendant- Under ‘‘collective knowledge’’ doc- Appellant. trine, uniformed officer was entitled to No. 16-4105 stop motorist based on traffic violation witnessed and reported by another plain United States Court of Appeals, clothes officer. U.S. Const. Amend. 4. Seventh Circuit. O ARGUED MARCH 30, 2018 2. Automobiles 349(17) Legitimate traffic stop may become DECIDED SEPTEMBER 5, 2018 unlawful if it is prolonged beyond the time Rehearing En Banc Denied reasonably necessary to complete the traf- October 26, 2018 fic-related mission of the stop. U.S. Background: Defendant was convicted, in Const. Amend. 4. the United States District Court for the O Southern District of Indiana, No. 1:15-cr- 3. Automobiles 349(18) 00024-WTL-DKL-1, William T. Lawrence, While unrelated inquiries may not J., of drug trafficking, firearms offenses, measurably prolong a traffic stop, police and money laundering, and he appealed officer, without violating driver’s Fourth from denial of his motion to suppress evi- Amendment rights, may conduct ordinary dence, as well as based on the District inquiries incident to the stop, such as ques- Court’s alleged evidentiary error and on tions involving driver’s license, the vehi- sufficiency of evidence grounds. cle’s registration, and whether there are outstanding warrants for driver; such ac- Holdings: The Court of Appeals, Rovner, tivities are all related to the mission and Circuit Judge, held that: objective of enforcing the traffic code and (1) district court did not plainly err when ensuring that vehicles on the road are it found that police officer did not un- operated safely and responsibly. U.S. constitutionally prolong stop in order Const. Amend. 4. to conduct dog sniff; O (2) district court did not clearly err in 4. Automobiles 349(14.1) finding that motorist who was arrested Because traffic stops are especially for being felon in possession of firearm fraught with danger to police officers, offi- and for having large quantity of drugs cer, consistent with the Fourth Amend- in trunk of his car did not unambigu- ment, may take certain negligibly burden- ously invoke his right to remain silent some precautions in order to complete his by silently moving his head in response mission safely. U.S. Const. Amend. 4.

000085 U.S. v. GARCIA 489 Cite as 919 F.3d 489 (7th Cir. 2019) devices, including his cell phone, portable ing cocaine to a known drug dealer, and hard drive, and laptop computer. At the the District Court, Rebecca R. Pallmeyer, time that they conducted these searches, J., denied defendant’s post-trial motion for they reasonably relied on Supreme Court judgment of acquittal. Defendant appealed. precedent that required no suspicion for Holding: The Court of Appeals, Hamilton, non-destructive border searches of proper- Circuit Judge, held that without corrobo- ty, and nothing more than reasonable sus- rating evidence, expert testimony regard- picion for highly intrusive border searches ing the meaning of cryptic intercepted of persons. The Court had also indicated phone calls between defendant and known that probable cause and a warrant had drug dealer did not establish defendant’s never been required for any border search. guilt beyond a reasonable doubt. We therefore need not reach the issue of Reversed. what level of suspicion is required (if any) for searches of electronic devices at the Brennan, Circuit Judge, filed a dissenting border, and reserve that question for a opinion. case in which it matters to the outcome. The district court committed no error in 1. Federal Civil Procedure O2142.1, declining to suppress the electronic evi- 2546 dence that formed the basis of Wanjiku’s In civil cases, motions for summary conviction. judgment and for judgment as a matter of AFFIRMED. law (JMOL) require judges to evaluate the outer limits of reasonable inferences under the civil standard of proof by a preponder- , ance of the evidence. Fed. R. Civ. P. 50(a), 56. 2. Criminal Law O753.2(3.1) If the evidence would not allow a civil case to survive a motion for summary UNITED STATES of America, judgment or a directed verdict, then the Plaintiff-Appellee, case has no business being given to a jury in a criminal trial. Fed. R. Civ. P. 50(a), v. 56; Fed. R. Crim. P. 29(a, c). Andres GARCIA, Defendant-Appellant. 3. Controlled Substances O82 No. 18-1735 Criminal Law O494 United States Court of Appeals, Telecommunications O1018(4) Seventh Circuit. Without corroborating evidence, expert testimony of agent from Bureau of Argued November 28, 2018 Alcohol, Tobacco, Firearms and Explosives Decided March 20, 2019 (ATF), regarding the meaning of cryptic Background: Defendant was convicted in intercepted phone calls between defendant the United States District Court for the and known drug dealer, e.g., drug dealers Northern District of Illinois, No. 1:12-CR- typically used the word ‘‘girl’’ to mean 356-3, Der-Yeghiayan, J., of distributing ‘‘cocaine’’ and used the word ‘‘work’’ to cocaine and using a communication facility mean ‘‘cocaine’’ or ‘‘drug dealing,’’ and to distribute the cocaine, based on supply- ‘‘two-four’’ referred to paying $24,000 for

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one kilogram of cocaine, amounted to edu- 8. Criminal Law O753.2(3.1), 977(4) cated speculation rather than proof beyond The beyond-a-reasonable-doubt stan- a reasonable doubt, in prosecution for dis- dard requires a quantum and quality of tributing cocaine and using a communica- proof that permits a judge to distinguish tion facility to distribute the cocaine. between criminal and civil cases for the Comprehensive Drug Abuse Prevention purpose of ruling on a motion for judg- and Control Act of 1970 §§ 401(a)(1), 403, ment of acquittal. Fed. R. Crim. P. 29(a, 21 U.S.C.A. §§ 841(a)(1), 843(b). c). O 4. Jury O131(6) 9. Federal Civil Procedure 2142.1, 2546 Whether prospective jurors should be When a judge in a civil case considers expressly questioned about racial bias or a motion for summary judgment or a mo- anti-immigrant sentiment is left to the trial tion for a directed verdict, the judge must judge’s discretion unless racial or ethnic consider the substantive evidentiary stan- bias is, or might be, a central aspect of the dard of proof that would apply at the trial case. on the merits. Fed. R. Civ. P. 50(a), 56.

5. Criminal Law O1134.70 10. Criminal Law O741(1) O In reviewing a district court’s denial Federal Civil Procedure 2142.1 of a motion for judgment of acquittal, the The trial judge must ensure in both Court of Appeals does not defer to the civil and criminal cases that determina- district judge’s decision. Fed. R. Crim. P. tions of credibility and the choices among 29(a, c). reasonable inferences from the evidence are left to the jury, but the judge is still 6. Criminal Law O1134.70, 1144.13(3) responsible for enforcing outer limits on reasonable inferences, guided by the rele- On a motion for judgment of acquittal, vant standard of proof. the court must view the evidence in the light most favorable to the government to 11. Criminal Law O559 determine whether any rational trier of Although a jury may infer facts from fact could have found the essential ele- other facts that are established by infer- ments of the charged offense beyond a ence, each link in the chain of inferences reasonable doubt. Fed. R. Crim. P. 29(a, must be sufficiently strong to avoid a lapse c). into speculation. O 7. Criminal Law O753.2(3.1), 977(4) 12. Criminal Law 552(3) Circumstantial evidence that leads While a defendant seeking a judgment only to a strong suspicion that someone is of acquittal faces a nearly insurmountable involved in a criminal activity is no substi- hurdle, the height of the hurdle depends tute for proof of guilt beyond a reasonable directly on the strength of the govern- doubt. ment’s evidence, and while successful challenges are relatively rare, a properly in- 13. Criminal Law O561(1) structed jury may occasionally convict Evidence that calls for inferences that even when it can be said that no rational are motivated or made possible by specula- trier of fact could find guilt beyond a rea- tion, especially inferences focused on a de- sonable doubt. Fed. R. Crim. P. 29(a, c). fendant’s presence or association with

000087 U.S. v. GARCIA 491 Cite as 919 F.3d 489 (7th Cir. 2019)

criminals or their criminal activity, will fail [1, 2] This case illustrates the role trial to carry the government’s burden of prov- judges have in guarding the requirement ing guilt beyond a reasonable doubt. of proof beyond a reasonable doubt in criminal cases. It also reminds us of the O 14. Criminal Law 562 connection between the roles that judges The heavy standard of proof applied play in criminal cases, requiring proof be- in criminal cases manifests the concern yond a reasonable doubt, and in civil cases, that the risk of error to the individual where motions for summary judgment and must be minimized even at the risk that for judgment as a matter of law require some who are guilty might go free. judges to evaluate the outer limits of reasonable inferences under the lower civil standard of proof by a preponderance of Appeal from the United States District the evidence. See generally Anderson v. Court for the Northern District of Illinois, Liberty Lobby, Inc., 477 U.S. 242, 252–53, Eastern Division. No. 1:12-CR-356-3—Re- 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) becca R. Pallmeyer, Judge. (comparing civil summary judgment stan- David E. Bindi, Attorney, Office of the dards to criminal standard discussed in United States Attorney, Chicago, IL, for Jackson v. Virginia, 443 U.S. 307, 318–19, Plaintiff-Appellee. 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If the evidence would not allow a civil case to Andrea Elizabeth Gambino, Attorney, survive a motion for summary judgment or Gambino & Associates, Chicago, IL, for a directed verdict, then the case has no Defendant-Appellant. business being given to a jury in a criminal trial. Before Rovner, Hamilton, and Brennan, Circuit Judges. We assume the government’s circumstantial evidence here might have sup- Hamilton, Circuit Judge. ported a search warrant or perhaps a wiretap on Garcia’s telephone. It simply was A jury found defendant-appellant An- not sufficient to support a verdict of guilty dres Garcia guilty of distributing cocaine— beyond a reasonable doubt for distributing actually distributing a kilogram of the cocaine. We reverse the district court’s stuff—to co-defendant Alan Cisneros in vi- decisions denying Garcia’s motions for olation of 21 US.C. § 841. The government judgment of acquittal pursuant to Federal offered no direct evidence that Garcia pos- Rule of Criminal Procedure 29 and reverse sessed or controlled cocaine, drug para- his convictions for insufficient evidence. phernalia, large quantities of cash, or other unexplained wealth. There was no admis- I. Factual and Procedural Background sion of drug trafficking by Garcia, nor any testimony from witnesses (undercover A. The Investigation of Cisneros and agents, criminal confederates, innocent by- his Conversations with Garcia standers, or surveillance officers) that Gar- Beginning in 2010, federal and state cia distributed cocaine. Instead, the gov- agents spent two years investigating an ernment secured this verdict based upon a Illinois-based drug trafficking organization federal agent’s opinion testimony purport- headed by Alan Cisneros, who, along with ing to interpret several cryptic intercepted most of his co-conspirators, was affiliated phone calls between Garcia and Cisneros, a with the Latin Kings street gang. The known drug dealer. evidence against Cisneros included sei-

000088 492 919 FEDERAL REPORTER, 3d SERIES zures of cocaine and cash used in drug shorter’’ with ‘‘longer hair’’—descriptors deals, controlled buys made by both a con- that matched Garcia. That same person fidential informant and an undercover left Cisneros’ residence a ‘‘few minutes’’ agent, video footage from a camera con- later, along with another person whom cealed near Cisneros’ two residences, live agents never identified. surveillance of his residences, consensually The next afternoon, on Wednesday, recorded telephone conversations, and ju- April 18, 2012, Garcia and Cisneros again dicially authorized wiretaps on three of spoke on the phone. Cisneros queried, Cisneros’ telephones. The agents built a ‘‘Hey, by any chance TTT did you see the strong case against Cisneros. He ultimate- girl yesterday or not?’’ Garcia demurred, ly pleaded guilty to possessing 500 grams ‘‘Noooo TTT why?’’ Cisneros explained, ‘‘be- or more of cocaine with intent to distrib- cause I went to the bar afterwards,’’ and ute. United States v. Cisneros, 846 F.3d ‘‘she’s really ugly TTT She scared me a 972, 974 (7th Cir. 2017). little bit.’’ Garcia expressed skepticism, ‘‘I Garcia appeared on stage for only a few took a little taste, I mean, you know? And days at the end of the Cisneros investiga- everything, and she was TTT fine, you tion. Between April 17 and April 20, 2012, know?’’ Cisneros insisted, ‘‘every time I go agents recorded eight brief conversations to that bar, well, she’s TTT really hot,’’ but between Cisneros and Garcia on one of ‘‘now she was a bit fat and TTT a bit ugly.’’ Cisneros’ wiretapped telephones. Garcia Garcia conceded that he would ‘‘check and Cisneros had several cryptic ex- around and [he’d] call [Cisneros] right changes, punctuated by Garcia’s two brief back’’ and ‘‘see what he says.’’ in-person visits with Cisneros. These con- A few hours later, Garcia told Cisneros versations, as interpreted at trial by an that he had ‘‘talk[ed] to these guys right ATF agent testifying as an expert witness, now’’ and ‘‘it was the TTT the last of what formed the basis for Garcia’s conviction. they had,’’ and ‘‘that everything came the Garcia did not contest that he was the same way[.]’’ But if Cisneros ‘‘can work person speaking with Cisneros on the calls, that one,’’ then ‘‘they will help us out with and the government and Garcia stipulated it, with something, they will give us a to the accuracy of the English translations discount.’’ Cisneros remained unpersuad- of the Spanish conversations. We review ed, insisting that ‘‘she’s too fat, like really them in detail, for their content was the TTT really worn out.’’ In fact, ‘‘she looks as entire case against Garcia. if TTT she had already been TTT worked at The first recorded conversation took two or three bars.’’ Garcia pushed back, place on the evening of Tuesday, April 17, noting that ‘‘I even told your brother like I TTT TTT 2012. After exchanging pleasantries, Gar- I grabbed some And she did give a cia asked Cisneros if he was ‘‘all set to kick[.]’’ But, Garcia conceded, ‘‘let me give work’’ and, if so, ‘‘around how much [did them another call right now and, so I’ll see he] count on over there?’’ Cisneros re- what they tell me.’’ sponded, ‘‘yes,’’ and ‘‘Like, two-four, some- Garcia reported back a few minutes la- thing like that.’’ Garcia replied, ‘‘That’s not ter that he ‘‘spoke with them,’’ and they a problem TTT I’ll go over there later.’’ wanted Cisneros to ‘‘work with her.’’ Gar- About an hour later, after a brief call cia had been told that ‘‘they already threw verifying Cisneros’ location, a surveillance the tix forward,’’ but ‘‘for the next one, he camera showed a person entering one of says that he could throw it to you for Cisneros’ residences who was ‘‘a little twenty-seven[.]’’ Cisneros objected that,

000089 U.S. v. GARCIA 493 Cite as 919 F.3d 489 (7th Cir. 2019)

‘‘even if the next one were at twenty-five thing—and drove away in the Audi with TTT if you do the math, noTTTT Let’s say at agents following him. around seventy, or, or sixty. Seventy TTT While Garcia was still driving, Cisneros eighty TTT around thereTTTT [I]t’s not even and Garcia had another phone conversa- worth the bad reputation, to tell you the tion. Garcia reported: ‘‘The little bit that I truth TTT Why get a bad reputation with, put on my tongue, it looks like it’s, it’s with people?’’ Garcia replied, ‘‘So then let good, man, you know?’’ Garcia told Cisne- me, so let me tell this guy it would be ros, ‘‘you test it,’’ or ‘‘like casually, just tell better not to and TTT and to try with that one of those guys who are around, give a one or to cook this one and we’ll just wait taste to someone around there to find out.’’ and until he gets the rest.’’ Cisneros replied that he was ‘‘also the same right now.’’ Garcia laughed, and said, Again, a few minutes later, Garcia was ‘‘Yeah, right? Yes, so then, I said, ‘Wow, back in touch with Cisneros reporting that what the!’ TTT So what if I had put a good, ‘‘the tix have already walked more that, uh, handful there.’’ Garcia told Cisneros that way.’’ Garcia explained that if Cisne- that they would ‘‘be in touch. If there’s ros could ‘‘hold on to it for about two or so anything, call me.’’ days,’’ then ‘‘he can change it for you.’’ Garcia repeated that he was told, ‘‘Tell him The agents following Garcia’s car be- to hold on to it there and so while we get lieved he had narcotics with him. They um, uh, the, the rest and then we’ll, we’ll, conducted a traffic stop as he was turning we’ll exchange it for him.’’ Cisneros want- into the driveway of his house. The agents’ ed to know, ‘‘By when, more or less[?]’’ belief was not correct. The agents asked Garcia replied, ‘‘by Friday,’’ and ‘‘we’ll give Garcia if they could search his car, and you another one within two days for sure.’’ Garcia agreed. Although a narcotics-sniff- ing dog gave a positive indication that These conversations sounded suspicious, some sort of drug (legal or illegal) had understandably, to the agents monitoring been or was in the car, the agents found Cisneros’ telephones. Thinking that a de- nothing of interest except two cellphones. livery of drugs could be imminent, agents They asked Garcia if they could look in the positioned themselves near Cisneros’ two telephones, and again Garcia agreed. residences to conduct surveillance in per- Checking the call log, they confirmed that son on the evening of Friday, April 20, Garcia had indeed been in contact with 2012. Cisneros. Garcia called Cisneros that evening to The agents then asked Garcia’s family say he would ‘‘be right there so I can talk members if they could search the house. with you.’’ Agents observed Garcia pull up The family members agreed. The agents in a gray Audi and walk to the front porch found nothing of interest—no drugs, no of one of Cisneros’ residences. The agents money, no drug paraphernalia, no wrap- did not notice Garcia carry anything to the pers or presses, no baggies or tinfoil, no residence. A few minutes later, Garcia and pipes, no scales or ledgers. Cisneros got into the Audi, drove down the Desiring to do a more thorough search street, and entered another of Cisneros’ of the car, the agents asked Garcia if he residences. Agents still did not see Garcia would return with them to the police sta- carrying anything. After about fifteen min- tion. Again, Garcia agreed. He was taken utes, Garcia left Cisneros’ residence— to the station and fingerprinted. The again apparently without carrying any- agents did not find any secret compart-

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ments in Garcia’s car, which, according to aloud to the jury the transcripts of Garcia the lead case agent at trial, are often used and Cisneros’ recorded conversations. De- ‘‘for storing drugs, money, guns, things of spite Agent Karceski’s experience ‘‘surv- that nature.’’ Whatever suspicions the eill[ing Cisneros] for many, many, many agents had were not borne out by the hours, observ[ing] him throughout two searches of Garcia’s person, car, and home. years,’’ the prosecutor explained to the Garcia was nonetheless indicted in a judge that ‘‘we aren’t asking [Agent thirty-five count indictment charging Karceski] to opine or offer any opinions on Cisneros and nine others with various drug what is being said in the conversations’’ trafficking and related offenses in connec- with Garcia. (This was prudent. See, e.g., tion with the Latin Kings’ street-gang ac- United States v. Morris, 576 F.3d 661, 675 tivities. Garcia, who was not a member of (7th Cir. 2009).) the Latin Kings, appeared in just two For that effort, the prosecution called counts of this far-ranging indictment: sup- instead a fourth agent, one who had no plying cocaine to Cisneros on April 17, firsthand knowledge of the Cisneros inves- 2012 (Count 28), and using a telephone to tigation. The government offered Agent facilitate that transaction (Count 27), in Christopher Labno as ‘‘an ATF special violation of 21 U.S.C. §§ 841(a)(1) and agent with experience interpreting drug 843(b), respectively. code.’’ After reviewing the transcripts, B. The Trial Labno testified that when Cisneros said ‘‘two-four,’’ he was ‘‘Talking about The government’s theory at trial was $24,000.’’ Agent Labno said his opinion was that on Wednesday, April 17, 2012, Garcia based on his experience that drug dealers sold ‘‘a large quantity of cocaine to Alan will ‘‘Typically TTT just [use] numbers in- Cisneros in exchange for $24,000.’’ The stead of someone saying I would like, you telephone conversations were evidence of know, $25,000, it will be two-five, that type this transaction because, the government of thing.’’ contended, Garcia and Cisneros used ‘‘girl’’ to mean ‘‘cocaine,’’ and ‘‘two-four’’ to mean Agent Labno opined further that the ‘‘twenty-four thousand dollars.’’ type of drug Garcia and Cisneros were The government presented four wit- discussing was ‘‘powder cocaine’’ because nesses at trial. All were ATF agents. None ‘‘some examples of [ ] code words’’ used for saw Garcia engage in distributing cocaine. cocaine include, ‘‘Work, girl, that white None saw him in possession of cocaine, girl.’’ In contrast, ‘‘example[s] of code large quantities of cash, or drug parapher- word[s] for heroin’’ include ‘‘Boy, dog food, nalia. Three of the agent-witnesses carried diesel.’’ And the market price for cocaine out the Cisneros investigation, but they in April 2012 determined the amount of provided no evidence to corroborate the drugs sold, with Agent Labno testifying, ‘‘I government’s theory about Garcia’s calls. would say the [cocaine market price] range Two of those three testified briefly about would be between approximately 24 to their first-hand observation of Garcia’s vis- $28,000 a kilo.’’ it to Cisneros on April 20, 2012, and the Agent Labno similarly explained the re- fruitless traffic stop and searches. mainder of Garcia and Cisneros’ conversa- The third agent, Andrew Karceski, simi- tions solely by reference to ‘‘typical’’ or larly described Garcia’s visits to Cisneros’ ‘‘common’’ use of phrases or courses of house and the traffic stop. He also read action by drug dealers in general:

000091 U.S. v. GARCIA 495 Cite as 919 F.3d 489 (7th Cir. 2019)

1 Garcia’s use of the term ‘‘work’’? circular puck. But very commonly, Labno: ‘‘Ready to work or set to it’s a brick.’’ work and work in general is typically Agent Labno testified that he formed an what is the code word for narcotics.’’ opinion as to these conversations based on 1 Cisneros’ reference to ‘‘the girl’’ be- only his view of how narcotics trafficking ing ‘‘worn out’’? Labno: ‘‘The cocaine is ‘‘typically TTT done on the street in my has been cut too much’’ because experience.’’ He acknowledged on cross- ‘‘[t]ypically cocaine come[s] into the examination that he did not know Garcia country at 85 to 90 percent pure and Cisneros and that he knew nothing [and] then is distributed through specific about them. Agent Labno agreed various individuals and very often that the meaning of code words—to the the practice is each time to add some extent they were code words—‘‘would de- cut and to take some cocaine out.’’ pend on the context.’’ But, he insisted, 1 What was meant by ‘‘tix’’? Labno: although ‘‘I don’t know the individuals, I ‘‘Tix refers to tickets, which is a com- know the context of narcotics trafficking mon code word for money.’’ very well.’’ Defense counsel observed that Agent Labno apparently chose the ‘‘con- 1 Why was Cisneros talking about his text’’ through which to interpret the con- ‘‘reputation’’? Labno: ‘‘Typically, you versations by ‘‘[a]ssuming that someone is want the best reputation you can for guilty of narcotics trafficking.’’ She thus your product.’’ laid the foundation for the point that, if 1 And the mention of ‘‘cooking’’? Lab- one starts with the assumption that Garcia no: It meant to ‘‘[c]ook the cocaine was trafficking cocaine, the conversations into crack cocaine’’ because ‘‘I under- make sense, but if one starts with the stand that one of the ways to recover presumption of innocence, some further cocaine that’s been cut too much is to corroboration of actual criminal conduct is cook it into crack cocaine.’’ needed to prove guilt beyond a reasonable 1 What did Garcia mean by ‘‘taste’’? doubt. She moved for a judgment of ac- Labno: He was ‘‘[t]esting the co- quittal, which Judge Der-Yeghiayan de- caine’’ because ‘‘[t]ypically individu- nied. als will either use a tester, someone In closing argument, the prosecutor told TTT who can tell whether it’s good or the jury, ‘‘when you consider all of the not. Sometimes they’ll — another evidence, the calls, the code, the surveil- way would be to put it on a mucous lance and the traffic stop, you know that membrane, basically your tongue, [Garcia] sold $24,000 worth of cocaine to your nose, your mouth, your gum, to Alan Cisneros on April 17th, 2012, and you see if you get a numb sensation or also know that he used a cellular telephone that type of feeling.’’ to facilitate.’’ The prosecutor concluded 1 What about the reference to a ‘‘cor- vaguely: ‘‘You know that what was said ner’’? Labno: That meant ‘‘off of the during those calls meant something.’’ The kilo, only a small portion, a corner of jury returned a guilty verdict on both it, had been sold,’’ as ‘‘[t]ypically [co- charges, finding that Garcia had distribut- caine is packaged as] a compressed ed cocaine and had used a communication brick TTT Sometimes it can be pack- facility to distribute the cocaine. Defense aged in other items TTT If they con- counsel renewed her motion for a judg- ceal [it] in a pipe, it could be a ment of acquittal, which was again denied.

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Upon Judge Der-Yeghiayan’s retire- of logic in the government’s case failed to ment, the case was assigned to Judge Pall- establish proof of Garcia’s guilt beyond a meyer for sentencing. Judge Pallmeyer reasonable doubt. denied Garcia’s post-trial motion for judgment of acquittal pursuant to Federal A. Standards of Review and Proof Rule of Criminal Procedure 29. She found [5] A trial judge, upon a defendant’s that Garcia sold one kilogram of cocaine motion or on the judge’s own initiative, based upon the evidence at trial and, with ‘‘must enter a judgment of acquittal of any zero criminal history points and a criminal offense for which the evidence is insuffi- history category of I, that his sentencing cient to sustain a conviction,’’ either after guideline range was 51 to 63 months. Gar- the government has closed its evidence or cia was sentenced to 48 months in prison after a jury has rendered a verdict or been on each count, to be served concurrently. discharged. Fed. R. Crim. P. 29(a), (c). In reviewing a district court’s denial of a mo- II. Analysis tion for judgment of acquittal, we do not [3, 4] On appeal, Garcia argues that defer to the district judge’s decision. Unit- the court should have entered a judgment ed States v. Mohamed, 759 F.3d 798, 803 of acquittal under Federal Rule of Crimi- (7th Cir. 2014). nal Procedure 29 because there was insufficient evidence to support his conviction [6] In applying Rule 29, the court must beyond a reasonable doubt. We agree. view the evidence ‘‘in the light most favor- Without corroborating evidence, the able to the government to determine agent’s opinion testimony regarding the whether any rational trier of fact could meaning of Garcia’s allegedly incriminating have found the essential elements of the conversations amounted to educated specu- charged offense beyond a reasonable lation rather than proof beyond a reason- doubt.’’ United States v. Seidling, 737 F.3d able doubt.1 1155, 1159–60 (7th Cir. 2013). We have often said that a defendant seeking a judg- We begin by laying out the general stan- ment of acquittal faces a ‘‘nearly insur- dards for reviewing sufficiency-of-the-evi- mountable hurdle.’’ E.g., United States v. dence challenges, which the Supreme Johnson, 874 F.3d 990, 998 (7th Cir. 2017) Court has taught can benefit from compar- (invoking chain of quotations); see also, ison to standards of proof in civil cases, e.g., United States v. Tantchev, 916 F.3d such as when a judge may take a claim or 645, 650 (7th Cir. 2019); United States v. issue away from a jury by granting sum- Maldonado, 893 F.3d 480, 484 (7th Cir. mary judgment or judgment as a matter of 2018). law. We then review the application of the governing standard in relevant case law. [7] But, to be clear, we have also in- We conclude by explaining why the chain sisted that ‘‘the height of the hurdle de-

1. Garcia raised two other issues on appeal: prejudices, existing precedent leaves this mat- (1) whether the trial judge abused his discre- ter to the trial judge’s discretion unless ‘‘ration by refusing to ask prospective jurors ex- cial or ethnic bias TTT is, or might be, a pressly about racial bias or anti-immigrant central aspect of the case’’—a situation not sentiment; and (2) whether the sentencing present here. United States v. Montenegro, 231 judge erred in finding sufficient evidence to F.3d 389, 394 (7th Cir. 2000). Because we set support the drug quantity finding. As to the aside Garcia’s conviction, we need not ad- first issue, while more pointed voir dire ques- dress the sentencing issue. tions might be advisable to elicit specific juror

000093 U.S. v. GARCIA 497 Cite as 919 F.3d 489 (7th Cir. 2019) pends directly on the strength of the gov- terms of the nature of the inquiry, TTT no ernment’s evidence.’’ United States v. different from the consideration of a mo- Jones, 713 F.3d 336, 339 (7th Cir. 2013) tion for acquittal in a criminal case, where (affirming grant of Rule 29 judgment of the beyond-a-reasonable-doubt standard acquittal). Successful challenges are rela- applies and where the trial judge asks tively rare, but ‘‘a properly instructed jury whether a reasonable jury could find guilt may occasionally convict even when it can beyond a reasonable doubt.’’ Id. at 250–52, be said that no rational trier of fact could 106 S.Ct. 2505, citing Jackson, 443 U.S. at find guilt beyond a reasonable doubt.’’ 318–19, 99 S.Ct. 2781. In all of these con- Jackson v. Virginia, 443 U.S. 307, 317, 99 texts, the judge must consider ‘‘the sub- S.Ct. 2781, 61 L.Ed.2d 560 (1979) (adding stantive evidentiary standard of proof that that ‘‘the same may be said of a trial judge would apply at the trial on the merits.’’ Id. sitting as a jury’’). at 252, 106 S.Ct. 2505; see also Ford v. [8] The Supreme Court has taught Ahitow, 104 F.3d 926, 938 (7th Cir. 1997) that, in applying Rule 29 and the reason- (Jackson inquiry is ‘‘no different from the able-doubt standard in criminal cases, it is consideration of the trial judge’s inquiry in useful to compare the similar role that a motion for summary judgment or for a judges play in deciding motions for sum- directed verdict,’’ namely a ‘‘judge asks mary judgment and for judgment as a whether a fair-minded jury could return a matter of law in civil cases, under Federal verdict for the plaintiff on the evidence Rules of Civil Procedure 56 and 50. In presented’’). Jackson, the Court explained that ‘‘the [10] The judge must ensure in both beyond-a-reasonable-doubt standard’’ re- civil and criminal cases that determina- quires a ‘‘quantum and quality of proof’’ tions of credibility and the choices among that permits a judge to ‘‘distinguish be- reasonable inferences from the evidence tween criminal and civil cases for the pur- are left to the jury. But in all of these pose of ruling on a motion for judgment of contexts, the judge is still responsible for acquittal.’’ Id. at 318 n.11, 99 S.Ct. 2781. enforcing outer limits on reasonable infer- Similarly, in one of the iconic cases on ences, guided by the relevant standard of summary judgment in civil cases, the proof. Anderson, 477 U.S. at 254–55, 106 Court returned to Jackson’s focus on ‘‘the S.Ct. 2505; see also, e.g., Matsushita Elec- actual quantum and quality of proof neces- tric Industrial Co. v. Zenith Radio Corp., sary to support liability,’’ advising that a 475 U.S. 574, 595, 106 S.Ct. 1348, 89 case should not go to a jury ‘‘if the evi- L.Ed.2d 538 (1986) (affirming summary dence presented TTT is of insufficient cali- judgment in civil antitrust suit where ber or quantity to allow a rational finder of ‘‘speculative or ambiguous’’ evidence did fact to find’’ liability under the applicable not support triable issue under preponder- standard of proof. Anderson v. Liberty ance-of-evidence standard); Willis v. Mar- Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. ion County Auditor’s Office, 118 F.3d 542, 2505, 91 L.Ed.2d 202 (1986). 544–45 (7th Cir. 1997) (affirming district [9] Anderson explained that when a court’s grant of judgment as matter of law; judge considers a motion for summary insufficient evidence to support jury ver- judgment, a directed verdict under Feder- dict that defendants harbored any racial al Rule of Civil Procedure 50(a), or a animus or had fired plaintiff to retaliate ‘‘First Amendment [case that] mandates a for her claim of employment discrimina- ‘clear and convincing’ standard,’’ it is, ‘‘[i]n tion). A judge facing a Rule 29 motion in a

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criminal case might benefit from first ask- such corroborating evidence of criminal ac- ing whether, if the evidence had been pre- tivity in the government’s case against sented in a civil case, it would be sufficient Garcia. to send the case to the jury. The remaining cases cited by the government bear even less resemblance to the B. Assessing the Required Quantum case against Garcia. For example, in Unit- and Quality of Evidence in a Crim- ed States v. Faulkner, 885 F.3d 488, 491– inal Case 92 (7th Cir. 2018), the defendant had ad- As noted, reversals for insufficient evi- mitted most of the charged conduct, and dence in criminal cases are relatively rare his admissions were corroborated by sub- in modern federal practice. There are suf- stantial amounts of recovered narcotics, ficient examples, however, to show that the incriminating recorded calls, and testimony evidence against Garcia fell well short of of several witnesses—including a cooperat- what could support a finding of guilty being co-defendant. Likewise, in United yond a reasonable doubt. States v. Mbaye, 827 F.3d 617, 619–20 (7th Cir. 2016), the defendant had admitted en- 1. Surveying Sufficiency- gaging in the fraudulent activities and ar- of-the-Evidence Cases gued only his lack of fraudulent intent. On Comparing the government’s evidence the issue of intent, the government offered against Garcia to the amount and types of testimony of both of his co-conspirators, as evidence that we have previously found well as other actions indicating conscious- sufficient or insufficient to carry the gov- ness of guilt, such as not reporting his ernment’s burden helps to map on which fraudulent income to the IRS and lying to side of the line Garcia’s case falls. investigators. Id. at 620. To support Garcia’s conviction, the gov- In another case that ‘‘skate[d] very ernment cites United States v. Cejas, 761 close’’ to the line between sufficient and F.3d 717 (7th Cir. 2014), as comparable in insufficient circumstantial evidence, Unit- terms of the quantum of proof because no ed States v. Duarte, 950 F.2d 1255, 1259 drugs were submitted as evidence at trial. (7th Cir. 1991), the government had In fact, the government’s case in Cejas was stronger evidence of the defendant’s in- much stronger than this one. In Cejas, a volvement in a drug conspiracy. No co- cooperating co-defendant testified that the conspirators testified that Duarte bought defendants sold him drugs. Id. at 722. The or sold cocaine, and police found no drugs government also offered surveillance video or paraphernalia in his presence. But of the defendants leaving the drug deal Duarte shared a hotel room with another and placing items in a toolbox attached to defendant who was arrested as he traveled the bed of their truck. And when the to a second hotel room where the police agents promptly executed a traffic stop of later found more than a kilogram of co- those defendants, the agents recovered the caine. More than 100 telephone calls were $8,000 cash payment for the drugs and a made from Duarte’s room in two days, and gun from the truck’s toolbox. Id. at 721–22. Duarte carried a pager, deemed then (it We found that the combination of the testi- was 1990) a tool of the drug trade. The mony of the drug buyer, the video of the police found notes in Duarte’s wallet that use of the truck box, and the recovered he had written and that a government cash and gun was sufficient to sustain the expert said were records of drug transac- conviction. Id. at 727. There simply is no tions. We also emphasized that Duarte had

000095 U.S. v. GARCIA 499 Cite as 919 F.3d 489 (7th Cir. 2019) lied to the police about just about every stated he was looking for a blender, which subject they asked him about, including FBI agents testified could be used to cook providing a false address, using a car reg- crack. Id. at 343, 349. Two co-conspirators istered to a false address, and carrying a testified, including Finley’s usual cocaine bogus driver’s license, creating ‘‘a cloud of ‘‘cooker,’’ who had not cooked for Finley suspicion surrounding his presence in Mil- on the day at issue. Id. at 342. The officers waukee.’’ Id. at 1260. Thus, even in who conducted surveillance of Jones and Duarte, which marked a point very close to Finley testified as to Jones’s movements the outer bounds of sufficient evidence, throughout the day. Id. at 341-45. And the there was considerably more evidence— jury heard testimony that Jones was in the associate headed toward a kilogram of Finley’s car during a police chase on the cocaine; the drug ledgers; the telephone relevant evening and that the officers re- calls and pager; and the cloud of lies to the covered a plastic bag filled with crack that police—than the government offered Finley threw from his car during the against Garcia here. chase. Id. at 344-45. Finally, the govern- Further illustrating the weakness of the ment played a recording of Jones report- government’s case is the fact that the ing to Finley after the police chase on his quantum and quality of evidence offered (Jones’s) efforts to find the discarded against Garcia were noticeably weaker crack in the neighborhood where Finley than the evidence in a number of cases had thrown the bag. Id. at 341–45, 349. where we have reversed convictions for Nonetheless, the circumstantial evidence insufficient evidence. in Jones was not sufficient to permit ju- For example, in United States v. Jones, rors, in terms of Jackson, ‘‘to draw reason- 713 F.3d 336, 339–40 (7th Cir. 2013), the able inferences from basic facts to ultimate government presented a range of circum- facts.’’ Jackson, 443 U.S. at 319, 99 S.Ct. stantial evidence in its effort to convict 2781. Despite the temptation to nod along defendant Jones of possessing cocaine with with the government’s evidence and think intent to distribute. We affirmed the dis- that of course the defendant was probably trict court’s ruling that there was insuffi- guilty, such gut feelings and suspicions do cient evidence to support a guilty verdict not relieve the government of the burden beyond a reasonable doubt because eviden- of offering sufficient evidence to prove tiary gaps required the jury to speculate guilty beyond a reasonable doubt. The gov- as to Jones’s guilt. ernment’s evidence in Jones had not con- The government’s theory was that de- nected the links in the logical chain: ‘‘None fendant Jones had helped a co-defendant, of the intercepted telephone conversations Finley, cook some cocaine into crack to showed an agreement between Jones and fulfill a drug order from an undercover Finley to have Jones cook the cocaine.’’ government informant—a theory sup- Jones, 713 F.3d at 349. ‘‘No witness testi- ported by some circumstantial evidence. fied that Jones cooked any cocaine or was Id. at 341. Government witnesses testified ever in possession of any cocaine.’’ Id. at as to their ‘‘interpretation of two recorded 341. ‘‘No witness saw Jones in possession telephone conversations between Jones of the crack at any time [and] [n]o witness and Finley,’’ including Jones seeming to heard Jones admit that he had possessed relay his intention to pick up items at a the crack or that he had helped Finley CVS or Walmart that could be used to cook the cocaine.’’ Id. at 346. ‘‘Jones was cook cocaine. Id. at 341–42. Jones also never seen with any cooking utensils or

000096 500 919 FEDERAL REPORTER, 3d SERIES diluents at any point during the day,’’ nor were simply not adequate. Nothing in Di- was he ‘‘seen on the grounds of a CVS, Novo suggests that the result would have Wal-Mart, or Walgreens where one might changed if the government had offered an purchase such ingredients.’’ Id. at 349. The experienced agent’s opinion that wives search for the blender did not help be- usually help their husbands in drug-traf- cause Finley’s regular cocaine cooker testi- ficking if the contraband is kept in their fied that ‘‘he and others typically did not shared home. use a blender to cook cocaine, and no one Even within the limited set of cases in ever saw Jones or Finley in possession of a which we have found evidence to be insuf- blender.’’ Id. Of the ‘‘three latent finger- ficient, we could go on. For example, in prints on the bag [of discarded crack] none United States v. Mohamed, 759 F.3d 798, belonged to Jones.’’ Id. at 345. And ‘‘the 800–01 (7th Cir. 2014), the government government could not establish that any presented highly suspicious evidence: the drugs were actually present’’ in the loca- defendant, whose van was pulled over in tions that officers observed Jones visit Indianapolis, was carrying over 23,000 cig- during the day at issue. Id. at 349. Filling arettes purchased in Kentucky and a trash this ‘‘evidentiary void’’ with ‘‘guesswork’’ bag with over $15,000 in cash, and the and ‘‘speculati[on]’’ was impermissible. Id. defendant admitted that he made some at 348. money reselling cigarettes illegally for Another case in which we found evi- profit. Yet there was insufficient evidence dence insufficient (against one of two de- introduced at trial that, as required for fendants), United States v. DiNovo, 523 conviction, the defendant ‘‘intended to sell F.2d 197 (7th Cir. 1975), also mustered the cigarettes in Indiana.’’ Id. at 810. more evidence than was offered against Similarly, in United States v. Katz, 582 Garcia. After Myron and Janet DiNovo F.3d 749, 750 (7th Cir. 2009), in an effort led police and DEA agents on a high- to convict the defendant of being a felon in speed chase, they searched the couple’s possession of a firearm, the government home. In the bedroom, agents discovered presented ‘‘testimony from several law en- two pounds of heroin in the dresser and forcement agents, a forensic technician, drug-weighing scales in the closet. In the and tapes of two 911 calls, as well as living room, agents found a briefcase with stipulations by the parties’’—including the $14,000 in cash, foil packets of heroin, and defendant’s ex-girlfriend’s statement in seven hypodermic needles, six containing her 911 call that defendant was holding ‘‘a heroin. Id. at 199. Although there was weapon, which she described as a big re- sufficient evidence to convict Myron, the volver.’’ That evidence was insufficient, government did not submit evidence that would permit jurors to find that Janet also however, because the weapon recovered possessed the heroin: ‘‘There was no evi- with defendant’s fingerprints was not a dence to show that she owned the trailer,’’ revolver but a 12-gauge shotgun, and the and the ‘‘Government offered no evidence forensic technician could not rule out that of what type of clothing was in the dress- defendant’s fingerprints pre-dated his felo- er’’ with the heroin, ‘‘[n]or TTT what was ny conviction. Id. at 752. We cautioned: ‘‘A in the portion of the closet where the jury cannot speculate its way out of rea- scales were found.’’ Id. at 201–02. The sonable doubt.’’ Id. government’s assertions, based on suspi- Perhaps the most useful case was the cious circumstantial evidence, that Janet most straightforward. In United States v. was sufficiently connected to the heroin Allen, 383 F.3d 644 (7th Cir. 2004), we

000097 U.S. v. GARCIA 501 Cite as 919 F.3d 489 (7th Cir. 2019) reversed defendant David L. Allen’s 2003 (2) he had not objected in 1999 to being conviction for being a felon in possession of arrested in connection with the 1995 of- a firearm because there was insufficient fense, and (3) a common case number was evidence tying him to the predicate felony associated with all three arrests, making it conviction. One David L. Allen had been reasonable to infer that the 2003 defendant convicted of dealing in cocaine in 1995. Id. was the same person convicted in 1995. Id. at 645–46. The future federal defendant While the district judge’s inferences were David L. Allen was arrested in 1999 on a reasonable, we reversed. The question was post-conviction warrant issued in the 1995 not whether a logical set of inferences case. He did not argue then that the arrest could show the charge was possibly or was a case of mistaken identity—i.e., that even likely true, but whether it could be he was not the same David L. Allen who inferred beyond a reasonable doubt that had been convicted in 1995. But after the the defendant was guilty as charged. Id. at Allen who was arrested in 1999 was arrest- 649. Our answer was no.2 ed again in 2003 and charged with being a felon in possession of a firearm, he argued We have not found other cases in this the government could not prove he was the circuit where the government tried to same David L. Allen who had been convict- bridge the evidentiary gap, as it did here, ed in 1995. Id. at 646. solely with an agent’s expert opinion, but The 1995 report contained no identifying similar efforts have not fared well in the information beyond a case number and his Second Circuit. In United States v. Young, name—no fingerprint, photograph, or 745 F.2d 733, 738–39 (2d Cir. 1984), the physical description. But the district court Second Circuit vacated the conspiracy con- found Allen guilty because (1) he shared viction of one defendant, Tangee Afflic, the same name with the 1995 defendant, who had been charged with serving as a

2. See also Piaskowski v. Bett, 256 F.3d 687, arms in the house, and slightly inaccurate 689–90, 693 (7th Cir. 2001), where we found testimony from jailhouse informant that de- the evidence was insufficient to sustain the fendant admitted to owning two of the guns murder conviction. Our dissenting colleague that were found in the kitchen; we reasoned understates the evidence against Piaskowski. that because there was ‘‘no evidence that [de- See post at 508. The evidence showed that the fendant] himself ever had actual physical pos- defendant had expressed anger at the victim, session of the shotgun TTT no evidence of his the defendant had told a witness shortly be- fingerprints TTT nor did any witnesses testify fore the murder that ‘‘there was some shit that they had seen [defendant] holding or going down,’’ another suspect’s confession using them,’’ the jury was simply ‘‘spec- placed the defendant at the scene of the mur- ulat[ing] its way out of reasonable doubt’’) der, and a co-defendant admitted that he had (quotation marks omitted); attacked the victim ‘‘like everybody else,’’ pre- United States v. , 371 F.3d 363, 364–66, 368 (7th Cir. sumably including defendant. We held that Jones 2004) (insufficient evidence to convict Jones the verdict was premised on ‘‘conjecture camouflaged as evidence,’’ and ‘‘require[d] a leap of transferring gun to another state’s resident of logic that no reasonable jury should have despite video evidence of Jones accompanying been permitted to take’’). Other cases reached his co-defendant to purchase gun illegally, agent’s testimony that Jones accompanied his similar conclusions. See, e.g., United States v. Griffin, 684 F.3d 691, 693–95, 698–99 (7th co-defendant across state lines to sell gun, Cir. 2012) (insufficient evidence for felon-in- and admission of co-defendant’s statement de- possession conviction despite agents’ seizure scribing scheme; ‘‘[t]he government might at defendant’s residence (owned by his par- have obtained support for [its theory] if the ents) of ten firearms and five sets of ammuni- ATF had further investigated,’’ but ‘‘[a]ll the tion, testimony from his probation officer that government brought to trial was its specula- she told his father there should not be fire- tion’’).

000098 502 919 FEDERAL REPORTER, 3d SERIES courier in a heroin network. Afflic shared man, J., concurring). Judge Newman ex- an apartment with Young, a defendant plained that one must convicted of a larger role in the conspiracy, question whether an [experienced nar- id. at 744, and she lived in what appeared cotics agent] expert’s opinion that the to be an apartment building that was ‘‘a events he observes constitute a drug vertically integrated heroin distribution transaction provides very much, if any, network.’’ Id. at 757. Afflic was also the assistance to a jury, beyond whatever subject of extensive surveillance, during inference is available to be drawn by the which she was seen delivering shopping jury from all the evidenceTTTT Whatever bags or small packages to various loca- slight probative value arises from a nar- tions, and was mentioned or recorded on cotics expert’s personal opinion that an intercepted phone conversations that ‘‘the observed transaction involved a sale of government contended were ‘coded,’ ’’ in- drugs must be carefully weighed against cluding communications describing efforts the distinct risk of prejudice. The ‘aura at ‘‘detecting or eluding surveillance.’’ Id. of special reliability and trustworthiness’ at 742–44. surrounding expert testimony, which The court found that this evidence was ought to caution its use, especially when sufficient to support probable cause for a offered by the prosecution in criminal search of Afflic’s apartment, during which cases, poses a special risk in a case of agents found an automatic rifle, two loaded this sort. That risk arises because the 50-shell magazines, fur jackets, and gold jury may infer that the agent’s opinion jewelry worth thousands of dollars. Id. at about the criminal nature of the defen- 744–45, 757–58. This evidence was not suf- dant’s activity is based on knowledge of ficient, however, to support Afflic’s convic- the defendant beyond the evidence at tion. Id. at 764. The amount of unexplained trialTTTT wealth was ‘‘relatively small,’’ and the The hazard of permitting the opinion in ‘‘surveillance testimony’’ describing Afflic’s evidence ought to make courts cautious delivery of ‘‘a ‘white’ bag’ ’’ to other con- in assessing the sufficiency of a case spiracy participants was underwhelming. based heavily on such an opinion. If the Id. The court explained that ‘‘the most this observed actions of a defendant do not evidence established was that [she] was establish a prima facie case, I do not aware of the conspiracy and associated believe that an expert’s opinion that his with some of its members’’—not enough to actions are criminal may carry the pros- prove her own guilt beyond a reasonable ecution’s proof above the requisite line. doubt. Id. The agent’s expert opinion did It is one thing to permit a jury to weigh not carry the day but was still deemed that opinion in considering an otherwise admissible because it ‘‘was not used to adequate case; it is quite another matter explain the absence of any corroborating to let that opinion salvage an insufficient physical evidence in the government’s case. case, but was instead used to explain phys- Id. at 765–66 (internal citations omitted); ical evidence that was in the case.’’ Id. at see also United States v. Boissoneault, 926 761. F.2d 230, 234–35 (2d Cir. 1991) (reversing Nevertheless, the expert opinion drew a conviction for possession of cocaine with word of ‘‘caution’’ because it was ‘‘offered intent to distribute and endorsing Judge to establish that ambiguous conduct consti- Newman’s concurrence in Young; agent’s tutes criminal activity.’’ Id. at 765 (New- expert opinion could not supply sufficient

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evidentiary basis to infer intent to distrib- enough to ‘‘fill the [evidentiary] gaps with ute beyond reasonable doubt); United inferences of guilt by association or evi- States v. Sette, 334 F.2d 267, 269 (2d Cir. dence of an individual’s mere presence 1964) (reversing conviction because sole somewhere criminal activity may have oc- evidence that defendant engaged in illegal curred.’’ Id. at 352. gambling was two agents’ ‘‘opinion testi- With our focus on Garcia and Cisneros’ mony’’ based on ‘‘their observations and conversations, a key government conten- their general knowledge of the gambling tion is that the use of the word ‘‘girl’’ business’’; this did not ‘‘suffice[ ] to make a meant ‘‘cocaine,’’ and the word ‘‘work’’ also case for the jury’’ where agents ‘‘utterly meant either ‘‘cocaine’’ or ‘‘drug dealing.’’ failed’’ to follow through on surveillance We do not doubt Agent Labno’s testimony and other evidence-gathering efforts—‘‘the that some drug dealers use these code proper and recognized manner of proving’’ words for cocaine and drug dealing. But the offense). we have also heard expert testimony in other cases regarding other code words 2. Assessing the Evidence used by drug dealers. See e.g., United Against Garcia States v. Vasquez, 679 Fed.Appx. 470, 471 [11] Returning to this case here, the (7th Cir. 2017) (agent testified based on his government’s case ‘‘consists entirely of in- experience and training that defendants ferences the government argues may be used code word ‘‘cabbage’’ to refer to co- drawn’’ about Garcia’s conversations, and caine); United States v. Hughes, 970 F.2d we must decide ‘‘whether this evidence 227, 237 (7th Cir. 1992) (agent testified permits an inference beyond a reasonable that ‘‘terms like ‘a gallon of paint’ and doubt.’’ Allen, 383 F.3d at 647. ‘‘Although a ‘truck,’ ‘van,’ and ‘tractor’ TTT indicated the jury may infer facts from other facts that involvement of a kilogram quantity of co- are established by inference, each link in caine’’). From a two-year investigation into the chain of inferences must be sufficiently Cisneros’ drug-dealing activities, the gov- strong to avoid a lapse into speculation.’’ ernment did not offer any corroboration Piaskowski v. Bett, 256 F.3d 687, 693 (7th that Cisneros (and not just a ‘‘typical’’ Cir. 2001). drug dealer) referred to cocaine as ‘‘girl’’ [12, 13] In making this assessment, a or ‘‘work,’’ such that a juror could reason- judge must take special care to guard ably infer that Garcia understood Cisneros against the possibility that a defendant to be talking about cocaine. might be found guilty by either speculation The next link in the government’s infer- or mere association. Circumstantial evi- ential chain is that Garcia understood dence that leads only to a ‘‘strong suspi- Cisneros’ phrase ‘‘two-four,’’ to mean cion that someone is involved in a criminal Cisneros would pay $24,000 for one kilo- activity is no substitute for proof of guilt gram of cocaine. Agent Labno may have beyond a reasonable doubt.’’ Id. at 692. correctly hypothesized that ‘‘two-four’’ And evidence that calls for inferences that meant $24,000, which was, perhaps fortui- are ‘‘motivated or made possible by specu- tously, at the bottom of his estimated lation’’—especially inferences ‘‘focused on range of market prices for a kilogram of a defendant’s presence or association with cocaine in Chicago in mid-2012. But like criminals or their criminal activity’’—will any commodity, cocaine’s market price can fail to carry the government’s burden. fluctuate, which would make any corrobo- Jones, 713 F.3d at 347. It is simply not ration of Labno’s estimate helpful for proof

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beyond a reasonable doubt. After all, other cases manifests our concern that the risk agents’ expert testimony in other contem- of error to the individual must be mini- porary cases opined that several months mized even at the risk that some who are after Garcia’s alleged sale, the 2013 Chica- guilty might go free.’’ Addington v. Texas, go-area market price for a kilogram of 441 U.S. 418, 428, 99 S.Ct. 1804, 60 cocaine was—at the low end—$34,000 per L.Ed.2d 323 (1979). These cryptic conver- kilogram. See, e.g., United States v. Delga- sations, filtered through an agent’s experi- dillo, Case No. 13-cr-673, Doc. 111-3 at 1–2 ence with other, unrelated cases without (July 1, 2014) and Doc. 151 at 278–79 (N.D. any corroboration that Garcia was actually Ill. July 22, 2014) (agent offered expert trafficking in cocaine, were not sufficient opinion that 2013 Chicago market price for to support a criminal conviction. See Pias- cocaine purchased in bulk quantity of six kowski, 256 F.3d at 693 (reversing verdict kilograms was $34,000 per kilogram, but based on ‘‘conjecture camouflaged as evi- ‘‘if the person was going to buy less, there dence’’). is a possibility that the price could actually District judges have a wealth of experi- increase’’); Vasquez, 679 Fed.Appx. at 471– ence in applying the varying standards of 72 (law enforcement agent’s testimony that proof to gauge the sufficiency of the gov- defendant sold a kilogram of cocaine for ernment’s evidence. When considering mo- $36,000). Again, there was no corrobora- tions for summary judgment or directed tion here. verdicts, judges are accustomed to consid- Did Cisneros refer to money as ‘‘tix’’ so ering carefully whether civil plaintiffs’ ‘‘ac- he would share Agent Labno’s suggested tual quantum and quality of proof’’ are of understanding of Garcia’s comment? Did ‘‘insufficient caliber or quantity to allow a Cisneros’ concern about his ‘‘reputation’’ rational finder of fact to find’’ liability to mean his reputation as a drug dealer, so send the matter to trial or to the jury. that Garcia would take from that concern Anderson, 477 U.S. at 254, 106 S.Ct. 2505. what Agent Labno suspected? Did Cisne- When faced with a close criminal case, the ros ever ‘‘cook’’ his cocaine, so that Gar- judge’s experience with parallel issues in cia’s suggestion was likely to be what civil cases may prove helpful in deciding Agent Labno presumed? Was Cisneros’ co- the boundaries of permissible inferences caine typically packaged in bricks, pucks, when the government must prove its case or some other form, such that one could beyond a reasonable doubt—which is so find Agent Labno’s speculation about the much more stringent than the civil stan- meaning of ‘‘corner’’ more helpful than dard of proof. California ex rel. Cooper v. not? We and the jury could speculate, but Mitchell Brothers’ Santa Ana Theater, 454 that’s not enough. U.S. 90, 92–93, 102 S.Ct. 172, 70 L.Ed.2d [14] Agent Labno’s experience let him 262 (1981). The evidence here fell well offer informed and perhaps accurate spec- short of proof beyond a reasonable doubt ulation about the likely meaning of Gar- on the charges against Garcia. cia’s calls with Cisneros. Their conversa- The judgment of the district court is tions were certainly suspicious. They REVERSED. might well have supported applications for search warrants or further wiretaps. We recognize that it is possible, perhaps even Brennan, Circuit Judge, dissenting. likely, that Garcia was guilty in fact. But The jury was presented with enough ‘‘[t]he heavy standard applied in criminal evidence at trial to find Garcia guilty be-

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yond a reasonable doubt. Viewing that evi- 2012 pulling up to Cisneros’ house, dence under the controlling legal standard walking to the front porch, returning of FED. R. CRIM. P. 29(c), I respectfully part to the vehicle with Cisneros, driving company with my colleagues and defer to to another residence owned by the jury’s verdict. Cisneros, entering the second residence with Cisneros, and driving A. The Trial Evidence away alone about 15 minutes later; After a three-day trial, receiving instruc- and 1 tions, and deliberating, the jury unani- The testimonies of three law enforce- mously convicted Garcia on two counts: (1) ment officers corroborating the sur- using a cell phone to distribute a con- veillance of Garcia on April 17, 2012 trolled substance in violation of 21 U.S.C. and April 20, 2012 and identifying § 843(b); and (2) knowingly and intention- him as the same person who entered ally distributing a controlled substance in Cisneros’s residences on both days. violation of 21 U.S.C. § 841(a)(1).1 The tri- The majority opinion considers the real evidence did not contain the proverbial corded cell phone conversations as inter- ‘‘smoking gun’’—Garcia was not caught preted by Bureau of Alcohol, Tobacco, and holding a kilogram of cocaine—but it did Firearms Special Agent Christopher Lab- include: no as the entire case against Garcia. For 1 Eight recorded phone conversations the majority, Labno’s testimony was insuf- between Garcia and a suspected drug ficient for a rational jury to convict Garcia distributor, Cisneros, with both men on the distribution charge.2 It labels this using multiple coded terms; evidence uncorroborated—‘‘educated spec- 1 Unchallenged and unrebutted expert ulation’’—rather than proof beyond a rea- witness testimony explaining those sonable doubt. coded terms, individually and cumu- This phone call evidence has two parts: latively, refer to the distribution of the calls themselves, and Labno’s expert cocaine; interpretation of them. 1 Two cell phones found in Garcia’s First, the contents and topics of the possession and a corresponding call phone calls show: log confirming the calls between 1 The respective roles played by Gar- Garcia and Cisneros; cia as the seller and Cisneros as the 1 Photographic and video surveillance buyer; from a pole camera of Garcia on 1 The roles and reactions of other ac- April 17, 2012 entering a residence tors, Garcia’s suppliers, including owned by Cisneros and leaving the that they would be willing to work residence a few minutes later; with Cisneros on future deals; 1 Photographic, video, and in-person 1 The progression of the sale, from surveillance of Garcia on April 20, how much Cisneros wanted to pay, to

1. The jury was properly instructed that it 2. The majority opinion does not separately needed to find guilt beyond a reasonable address the sufficiency of the evidence con- doubt on each element of the two counts, cerning the cell phone count. Given the stipu- weigh the evidence, and render its verdicts lation to Garcia’s voice on the recorded calls, based on that evidence. the sufficiency of the evidence as to narcotics ‘‘distribution’’ is presumably dispositive on the cell phone count as well.

000102 506 919 FEDERAL REPORTER, 3d SERIES

concerns about its quality, discussion distributing cocaine, the same can be true as to price, and taste testing the of coded drug jargon. product; This brings us to the second part of 1 How Cisneros’s reputation as a seller the phone call evidence, Agent Labno’s could be adversely affected if Garcia testimony. Labno has operated as an un- sold Cisneros inferior product; and dercover special agent in Chicago for approximately 16 years. He testified to his 1 How the product may have to be familiarity with the price, quantity, and altered by ‘‘cooking.’’ quality of cocaine, including common code words used in local drug trafficking. He In their numerous conversations, Garcia also testified to his personal use of a cell and Cisneros do not explicitly reference phone to facilitate drug dealings, and his ‘‘cocaine,’’ as drug dealers almost never do own experience cooking ‘‘crack’’ as an un- and would not. They instead used common dercover agent. It would appear there is terms as substitutes (‘‘work,’’ ‘‘girl,’’ ‘‘white no aspect of the local cocaine distribution girl,’’ ‘‘tix,’’ ‘‘taste,’’ ‘‘worn out,’’ ‘‘cook,’’ process with which Labno is not familiar.3 ‘‘two-four,’’ etc.). While an untrained juror At trial, the defendant did not object may not be familiar with these terms, fed- under FED. R. EVID. 702 to Labno’s exper- eral courts routinely permit an expert wit- tise or to the jury’s reliance on his expert ness to be ‘‘helpful to the jury’’ in inter- interpretations when weighing the evi- preting such evidence. See United States v. dence. Indeed, Garcia’s counsel cross-ex- Ceballos, 302 F.3d 679, 687-88 (7th Cir. amined Labno only briefly (four pages of 2002) (DEA agents’ interpretations were transcript). The majority opinion credits ‘‘helpful to the jurors’’ in applying ‘‘alter- the cross-examination of Agent Labno for native theories of which they ordinarily laying a foundation that the taped conver- would not have been aware’’) (internal quo- sations make sense only if Garcia is as- tations omitted); see also United States v. sumed to be drug trafficking. But in his Jones, 763 F.3d 777, 802 (7th Cir. 2014) (an response to that question, Agent Labno expert witness may ‘‘assist the jury’’ in specifically denied that assumption: ‘‘I’m resolving ambiguities); United States v. not making assumptions about that. I’m York, 572 F.3d 415, 423 (7th Cir. 2009) just interpreting what the wiretap conver- (allowing expert witnesses to translate sations are based on the code words in the ‘‘drug jargon and code words that might context in my experience.’’ seem entirely innocuous to an untrained Garcia’s principal argument at trial was jury.’’). Just as a jury may need the assis- that the recorded conversations were so tance of a translator to consider whether a ambiguous the jury could not reasonably foreign-language conversation concerns determine their meaning.4 In helping the

3. The majority opinion notes how Agent Lab- negative. Indeed, this court has stated experts no ‘‘had no firsthand knowledge of the Cisne- need not be familiar with a ‘‘particular con- ros investigation.’’ Of course, if he had such spiracy’’ but ‘‘can determine, based on their knowledge and was called as a fact and ex- expertise, that certain words have drug-relat- pert witness, that could be criticized as con- ed meanings within the context of a single fusing the jury, and require precautions to conversation.’’ United States v. York, 572 F.3d minimize potential prejudice. See United 415, 424 (7th Cir. 2009). States v. Farmer, 543 F.3d 363, 369 (7th Cir. 2008) (citing United States v. Goodwin, 496 4. Because Garcia stipulated that the conver- F.3d 636, 641-42 (7th Cir. 2007)). Given Lab- sations were ambiguous, he opened the door no’s role as an expert, his not knowing Garcia to Labno’s interpretation. An expert’s inter- and Cisneros should not be characterized as a pretation may be helpful to the jury in deter-

000103 U.S. v. GARCIA 507 Cite as 919 F.3d 489 (7th Cir. 2019)

jury interpret the phone conversations, F.3d 854, 856 (7th Cir. 1999) (‘‘a daunting Labno explained that, in his experience, task’’). the terms ‘‘work’’ and ‘‘girl’’ refer to co- Rule 29 post-verdict review is narrowly caine; ‘‘taste’’ and ‘‘cooking’’ refer to the limited to determine whether ‘‘any rational quality of cocaine; ‘‘tix’’ or ‘‘tickets’’ refer trier of fact could have found the essential to drug payments; and ‘‘two-four’’ refers to elements of the crime beyond a reasonable $24,000, the going market-price for a kilo- doubt.’’ Jackson v. Virginia, 443 U.S. 307, gram of cocaine. We have often recognized 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) these same expert interpretations in other (emphasis in original). This ‘‘does not re- drug cases. In United States v. Fuller, 532 quire [the] court to ask itself whether it F.3d 656, 661 (7th Cir. 2008), we recog- believes that the evidence at the trial es- nized defendant’s use of the code word tablished guilt.’’ Jackson, 443 U.S. at 318- ‘‘work’’ to mean cocaine. See also United 19, 99 S.Ct. 2781 (internal quotations omit- States v. Page, 521 F.3d 101, 108-09 (1st ted); see also Jones, 713 F.3d at 340 (‘‘The Cir. 2008) (noting ‘‘work’’ was the typical inquiry does not ask what we would have drug-dealers’ code for cocaine); United decided if we were on the jury. We need States v. Benitez, 92 F.3d 528, 532 (7th Cir. not be convinced by the evidence our- 1996) (same). After hearing Labno’s inter- selves.’’); United States v. Genova, 333 pretation of the phone calls, it was still up F.3d 750, 757 (7th Cir. 2003) (‘‘Rule 29(c) to the jury to decide how much weight to does not authorize the judge to play thir- give his testimony and to draw its own teenth juror.’’). We will ‘‘overturn the conclusions about the actual meaning of jury’s verdict only when the record con- the conversations. The jurors did just that. tains no evidence, regardless of how it is weighed, from which the factfinder could find guilt beyond a reasonable doubt.’’ B. The Legal Standard United States v. Faulkner, 885 F.3d 488, Under Rule 29(c), the standard a defen- 492 (7th Cir. 2018) (internal quotations dant must meet in challenging the suffi- omitted); see also United States v. Farris, ciency of the evidence on a criminal convic- 532 F.3d 615, 618 (7th Cir. 2008) (‘‘[W]e tion is very high. See United States v. will overturn a conviction based on insuffi- Torres-Chavez, 744 F.3d 988, 993 (7th Cir. cient evidence only if the record is devoid 2014) (the defendant’s Rule 29 burden is of evidence from which a reasonable jury ‘‘nearly insurmountable’’); United States v. could find guilt beyond a reasonable Jones, 713 F.3d 336, 339 (7th Cir. 2013) (‘‘a doubt.’’) (internal quotations omitted). nearly insurmountable hurdle’’); United The evidentiary standard of proof—be- States v. Griffin, 684 F.3d 691, 694 (7th yond a reasonable doubt—does not change Cir. 2012) (‘‘a heavy burden’’); United during post-verdict review. But, unlike States v. Bogan, 267 F.3d 614, 623 (7th pre-verdict, the evidence is construed ‘‘in Cir. 2001) (‘‘a nearly insurmountable bur- the light most favorable to the govern- den’’); United States v. McCaffrey, 181 ment,’’ creating a rebuttable presumption

mining the meaning of words and terms—no States v. Ceballos, 302 F.3d 679, 687-88 (7th matter how common they may be—when they Cir. 2002) (upholding agents’ interpretations are used ambiguously in conversation. See of simple pronouns ‘‘it,’’ ‘‘them,’’ and ‘‘both’’ York, 572 F.3d at 423 (recognizing expert’s as referring to methamphetamine shipments interpretation when ‘‘six,’’ ‘‘nine,’’ ‘‘five dol- because defendants used those pronouns am- lar,’’ and ‘‘fifty-five’’ were used ambiguously biguously in conversation). in defendant’s conversations); see also United

000104 508 919 FEDERAL REPORTER, 3d SERIES of conviction. See United States v. Sei- suggestion is fine to the extent it repeats dling, 737 F.3d 1155, 1159 (7th Cir. 2013); current law toward a helpful comparison. see also United States v. Niggemann, 881 But ‘‘enforcing outer limits on reasonable F.3d 976, 980 (7th Cir. 2018) (We ‘‘draw all inferences, guided by the relevant stan- reasonable inferences in the light most dard of proof’’ does not and should not favorable to the prosecution.’’). While the transform the judge’s role under Rule 29 evidence must ‘‘reasonably support a find- into weighing the trial evidence. ing of guilt beyond a reasonable doubt,’’ Jackson, 443 U.S. at 318, 99 S.Ct. 2781, C. Other Sufficiency-of-the-Evidence deference to the jury’s deliberations pre- Cases vents the court from assessing the quality The majority opinion compares the evi- of the evidence any further. See United dence in this case to other sufficiency-of- States v. Smallwood, 188 F.3d 905, 913-14 the-evidence cases, and concludes it falls (7th Cir. 1999) (court defers to the jury’s short because the phone calls and Labno’s credibility determinations without making testimony are not corroborated by ‘‘actual its own); see also United States v. Reed, evidence’’ of drugs. On comparison, that 875 F.2d 107, 111 (1989) (in reviewing a conclusion does not hold up. Rule 29 motion the judge must respect In the case law the majority cites, we ‘‘the exclusive function of the jury to deter- have found sufficient evidence to support a mine the credibility of witnesses, resolve conviction when there is pole camera video evidentiary conflicts, and draw reasonable surveillance of the defendant (United inferences.’’). States v. Cejas, 761 F.3d 717 (7th Cir. The narrow scope of Rule 29 is defined 2014)), third-party testimony, (Cejas), loose by phrases such as ‘‘no evidence’’ and ‘‘de- association with a co-defendant (United void of evidence.’’ This language focuses States v. Duarte, 950 F.2d 1255 (7th Cir. the court’s Rule 29 role on assessing the 1991)), carrying a ‘‘tool of the drug trade’’ quantum of evidence, not its weight or (Duarte), and expert interpretation of de- credibility. In conducting a quantum analy- fendant’s drug deal records (Duarte). sis, the court must determine whether the Some combination of this evidence has evidence, ‘‘taken as a whole,’’ is enough for been sufficient to convict on drug distribu- any rational jury to find guilt beyond a tion charges, even when there are no reasonable doubt. Smallwood, 188 F.3d at drugs (Cejas; Duarte), no cash (Duarte), 913. Unless Garcia rebuts the presumption no weapons (Duarte), no drug parapherna- of conviction by showing the government lia (Cejas; Duarte), and no direct admis- submitted no evidence for a rational fact- sions (Cejas; Duarte). In contrast, we have finder to find him guilty beyond a reason- found insufficient evidence when recorded able doubt, the standard requires that we phone conversations between co-defen- defer to the jury’s verdict. dants lack detail (United States v. Jones, The standard does not require, though, 713 F.3d 336 (7th Cir. 2013)), and when the that we explain how the case might fare in government’s case is ‘‘focused on’’ (id. at the civil context. The majority opinion 347) the defendant’s ‘‘mere presence’’ at compares the judge’s role under Rule 29 the crime scene (Piaskowski v. Bett, 256 with the judge’s role in considering mo- F.3d 687 (7th Cir. 2001)). tions for summary judgment under FED. R. Here, it is undisputed it was Garcia’s CIV. P. 56 and judgment as a matter of law voice on the phone call recordings with under FED. R. CIV. P. 50, respectively. This Cisneros; photo and video surveillance

000105 U.S. v. GARCIA 509 Cite as 919 F.3d 489 (7th Cir. 2019) from a pole camera showed Garcia at 337 (7th Cir. 2009) (‘‘A verdict may be Cisneros’s residences on April 17 and April rational even if it relies solely on circum- 20; police officers were present at the ex- stantial evidence.’’); see also United States change on April 20 and later identified v. Galati, 230 F.3d 254, 258 (7th Cir. 2000) Garcia as the same person on both days; (‘‘A jury’s verdict may rest solely on cir- two cell phones were found in Garcia’s cumstantial evidence.’’). Here, the jury was possession and call logs corroborated Gar- instructed that ‘‘[t]he law makes no dis- cia’s conversations with Cisneros; and ex- tinction between the weight to be given to pert testimony interpreted the terms Gar- either direct evidence or circumstantial ev- cia used and the context of his calls with idence.’’ The jurors followed those instruc- Cisneros as a drug deal. Garcia’s use of his cell phone as a ‘‘tool of the drug trade’’ and tions, and found Garcia guilty. Labno’s interpretation explaining the cod- Based on the evidence the government ed drug deal is like the Duarte defendant submitted in this case, a rational jury using a pager and that expert’s interpreta- could reasonably conclude: (1) Garcia’s tion of the defendant’s notes as records of phone call with Cisneros on April 17, 2012 5 drug deals, which we deemed sufficient. was about selling cocaine; (2) Garcia physi- And unlike the recorded conversations in Jones, which lacked sufficient detail, Gar- cally delivered cocaine to Cisneros’s resi- cia’s eight conversations with Cisneros cov- dence on April 17, 2012; (3) Garcia used er every aspect of their on-going deal, the cell phone officers found in his posses- from price, quality, and quantity to main- sion to communicate with Cisneros about taining a good reputation as a dealer. All the cocaine sale; and (4) Agent Labno’s this evidence adds up to far more than testimony, the pole camera photo and vid- ‘‘mere presence,’’ and, most importantly, eo surveillance, the in-person identifica- far more than ‘‘no evidence.’’ Further cor- tions of Garcia at Cisneros’s homes on roboration is not necessary. See Small- April 17 and April 20, the phones found in wood, 188 F.3d at 913 (‘‘[corroborative evi- Garcia’s possession and the call logs all dence] need only ensure the reliability’’ of support a drug-related interpretation of testimonial evidence) (internal citation the recorded telephone conversations be- omitted). tween Garcia and Cisneros from April 17, In comparing these cases, the majority 2012 through April 20, 2012.6 hints at a false distinction between direct and circumstantial evidence, signaling that Because Garcia failed to rebut the pre- the strength of the evidence depends on its sumption of conviction by showing the gov- weight. The law makes no such distinction, ernment submitted no evidence for a ra- and circumstantial evidence can form the tional factfinder to find him guilty beyond basis for guilt beyond a reasonable doubt. a reasonable doubt, the legal standard re- See United States v. Moore, 572 F.3d 334, quires that we defer to the jury’s verdict.

5. In his motion, Garcia incorrectly cited these 631, 637-38 (7th Cir. 2004) (defendants ‘‘lost dates as in 2013. the right to complain about the failure of proof on a key element of the government’s 6. Although the Rule 29 motion ‘‘need not case’’ that was not specifically argued in their spell out the particular basis for a challenge Rule 29 motions) (internal citation omitted). to the sufficiency of the evidence, when such Because Garcia raised only these specific a motion raises specific arguments, any claims in his Rule 29 motion, he has waived claims not presented in the motion are any other grounds for acquittal. waived.’’ United States v. Moore, 363 F.3d

000106 510 919 FEDERAL REPORTER, 3d SERIES

For these reasons, I respectfully dissent (4) error was harmless as to insufficiency from the majority’s opinion. of evidence of leadership role. Affirmed.

, 1. Criminal Law O1144.13(3), 1159.2(1) In assessing a challenge to the sufficiency of the evidence, the Court of Ap- peals views the evidence in the light most favorable to the government and asks UNITED STATES of America, whether a rational jury could have found Plaintiff-Appellee, that defendant committed the charged offenses. v. 2. Currency Regulation O4 Geraldo COLON, Defendant-Appellant. To sustain convictions for eight counts No. 18-1233 of money laundering, relating to defendant’s role as middleman in drug traffick- United States Court of Appeals, ing scheme, the government had to prove Seventh Circuit. that defendant engaged in financial trans- Argued January 18, 2019 actions that involved drug trafficking proceeds and that he designed each transac- Decided March 22, 2019 tion in whole or in part to disguise the Background: Defendant was convicted in nature or source of the funds. 18 U.S.C.A. the United States District Court for the § 1956(a)(1)(B)(i). Southern District of Indiana, No. 1:15-cr- O 80, Jane Magnus-Stinson, Chief Judge, of 3. Currency Regulation 4 drug conspiracy, money laundering, and In prosecution for eight counts of making false statements in a bankruptcy money laundering, relating to defendant’s proceeding, relating to defendant’s role as role as middleman in drug trafficking middleman in drug trafficking scheme, and scheme and his bank account deposits, the was sentenced to 30 years’ imprisonment. government was not required to trace or Defendant appealed. tie the deposited funds to a particular drug sale, nor was the government required to Holdings: The Court of Appeals, Scudder, prove that each deposit involved only ille- Circuit Judge, held that: gal proceeds; instead, because drug deal- (1) evidence allowed inferences that bank ers often comingled drug proceeds with deposits involved some drug proceeds legitimate funds, the government needed and that bank deposits were designed to establish that each of the deposits in- to disguise the nature or source of volved some illegal proceeds. 18 U.S.C.A. funds; § 1956(a)(1)(B)(i). (2) evidence did not warrant leadership- 4. Currency Regulation O12 role enhancement of sentence for drug Evidence that during a calendar conspiracy; month, defendant’s deposits to bank ac- (3) evidence did not warrant leadership- count for his mall business, which involved role enhancement of sentence for mon- leasing space to other vendors in a mall in ey laundering; but which defendant operated a furniture

000107 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248...

KeyCite Yellow Flag - Negative Treatment West Headnotes (11) Distinguished by United States v. Bullock, 4th Cir.(N.C.), July 5, 2019 139 S.Ct. 1960 [1] Double Jeopardy Supreme Court of the United States. Offenses Against Different Sovereignties or Terance Martez GAMBLE, Petitioner Governmental Units v. Double Jeopardy UNITED STATES Offenses against United States and a state or territory No. 17-646 The dual-sovereignty doctrine recognizes that, | under the Double Jeopardy Clause, which Argued December 6, 2018 provides that no person may be twice put in | jeopardy “for the same offence,” a crime under Decided June 17, 2019 one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign, and Synopsis thus, a State may prosecute a defendant under Background: After denial of defendant's motion to dismiss state law even if the federal government has the federal indictment on double jeopardy grounds, which prosecuted him for the same conduct under a motion was based on defendant's earlier conviction in state federal statute, or the reverse may happen. U.S. court for possession of a firearm by a person previously Const. Amend. 5. convicted of a crime of violence, defendant entered a guilty plea in the United States District Court for the Southern 13 Cases that cite this headnote District of Alabama, No. 1:16-cr-00090-KD-B-1, Kristi K. DuBose, J., 2016 WL 3460414, to being a felon in possession of a firearm, but defendant preserved his right to appeal [2] Double Jeopardy from the denial of the motion. Defendant appealed. The Offenses Against Different Sovereignties or United States Court of Appeals for the Eleventh Circuit, 694 Governmental Units Fed.Appx. 750, affirmed. Certiorari was granted. The dual-sovereignty rule follows from the text of the Double Jeopardy Clause, which protects individuals from being put twice in jeopardy “for the same offence,” not for the same conduct [Holding:] The Supreme Court, Justice Alito, held that under or actions, and from an understanding of the principles of stare decisis, historical evidence and other term “offence,” when the Fifth Amendment sources did not overcome numerous major decisions of the was enacted in 1791, to mean transgression; as Supreme Court, spanning 170 years, recognizing that under originally understood, then, an “offence” was the dual-sovereignty doctrine, the Double Jeopardy Clause defined by a law, and each law was defined by a allows successive prosecutions by separate sovereigns. sovereign, so where there were two sovereigns, there were two laws, and two offenses. U.S. Affirmed. Const. Amend. 5.

2 Cases that cite this headnote Justice Thomas filed a concurring opinion.

Justice Ginsburg filed a dissenting opinion. [3] Constitutional Law Plain, ordinary, or common meaning Justice Gorsuch filed a dissenting opinion. Constitutional Law History in general The private intent behind a drafter’s rejection of one version of constitutional text is shoddy

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evidence of the public meaning of an altogether different text. Cases that cite this headnote

Cases that cite this headnote [7] Courts Previous Decisions as Controlling or as [4] Double Jeopardy Precedents Offenses Against Different Sovereignties or Stare decisis promotes the evenhanded, Governmental Units predictable, and consistent development of legal Fidelity to the Double Jeopardy Clause’s text, principles, fosters reliance on judicial decisions, which provides that no person may be twice put and contributes to the actual and perceived in jeopardy “for the same offence,” does more integrity of the judicial process. than honor the formal difference between two distinct criminal codes for separate sovereigns; 1 Cases that cite this headnote it honors the substantive differences between the interests that two sovereigns can have in [8] Constitutional Law punishing the same act. U.S. Const. Amend. 5. Overturning judgment

2 Cases that cite this headnote Courts Previous Decisions as Controlling or as Precedents [5] Criminal Law While it is important for the Supreme Court Offenses against United States and state or to be right, especially on constitutional matters territory because Congress cannot override the Supreme International Law Court's errors by ordinary legislation, a departure Criminal justice from precedent, even in constitutional cases, The murder of a U. S. national is an offense demands special justification, and this means to the United States as much as it is to the that something more than ambiguous historical country where the murder occurred and to which evidence is required before the Supreme Court the victim is a stranger, and that is why the will flatly overrule a number of its major killing of an American abroad is a federal offense decisions, and the strength of the case for that can be prosecuted in U.S. courts, and why adhering to such decisions grows in proportion customary international law allows this exercise to their antiquity. of jurisdiction. 18 U.S.C.A. § 2332(a)(1). 1 Cases that cite this headnote Cases that cite this headnote

[9] Courts [6] States Decisions of United States Courts as Powers Reserved to States Authority in State Courts While the federal Constitution rests on the Double Jeopardy principle that the people are sovereign, that Offenses against United States and a state does not mean that they have conferred all the or territory attributes of sovereignty on a single government, Under principles of stare decisis, historical and instead, the people, by adopting the evidence and other sources did not overcome Constitution, split the atom of sovereignty; when numerous major decisions of the Supreme Court, the original States declared their independence, spanning 170 years, recognizing that under the they claimed the powers inherent in sovereignty, dual-sovereignty doctrine, the Double Jeopardy and the Constitution limited but did not abolish Clause allows a State to prosecute a defendant the sovereign powers of the States, which under state law even if the federal government retained a residuary and inviolable sovereignty. has prosecuted him for the same conduct under

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a federal statute, or that the reverse may happen; English cases were a muddle, treatises offered * The syllabus constitutes no part of the opinion of the spotty support for flatly overruling the Court's Court but has been prepared by the Reporter of Decisions major decisions, and early state and federal cases for the convenience of the reader. See United States v. were by turns equivocal and downright harmful Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 to the argument that the decisions should be S.Ct. 282, 50 L.Ed. 499. overruled. U.S. Const. Amend. 5. Petitioner Gamble pleaded guilty to a charge of violating Alabama's felon-in-possession-of-a-firearm statute. Federal 8 Cases that cite this headnote prosecutors then indicted him for the same instance of possession under federal law. Gamble moved to dismiss, [10] Constitutional Law arguing that the federal indictment was for “the same offence” Fifth Amendment as the one at issue in his state conviction, thus exposing him to double jeopardy under the Fifth Amendment. The District Double Jeopardy Court denied this motion, invoking the dual-sovereignty Offenses against United States and a state doctrine, according to which two offenses “are not the ‘same or territory offence’ ” for double jeopardy purposes if “prosecuted by The premises of the dual-sovereignty doctrine, different sovereigns,” Heath v. Alabama, 474 U.S. 82, 92, under which the Double Jeopardy Clause allows 106 S.Ct. 433, 88 L.Ed.2d 387. Gamble pleaded guilty to the a State to prosecute a defendant under state law federal offense but appealed on double jeopardy grounds. The even if the federal government has prosecuted Eleventh Circuit affirmed. him for the same conduct under a federal statute, or the reverse may happen, have survived the Held: This Court declines to overturn the longstanding dual- Double Jeopardy Clause's incorporation against sovereignty doctrine. Pp. 1964 – 1980. the States; incorporation meant that the States were now required to abide by the Supreme (a) The dual-sovereignty doctrine is not an exception Court’s interpretation of the Double Jeopardy to the double jeopardy right but follows from the Fifth Clause, that interpretation has long included the Amendment's text. The Double Jeopardy Clause protects dual-sovereignty doctrine, and there is no logical individuals from being “twice put in jeopardy” “for the same reason why incorporation should change it. U.S. offence.” As originally understood, an “offence” is defined Const. Amends. 5, 14. by a law, and each law is defined by a sovereign. Thus, 13 Cases that cite this headnote where there are two sovereigns, there are two laws and two “offences.” Gamble attempts to show from the Clause's drafting history that Congress must have intended to bar [11] Double Jeopardy successive prosecutions regardless of the sovereign bringing Several offenses in one act; separate the charge. But even if conjectures about subjective goals statutory offenses and legislative intent were allowed to inform this Court's reading of the text, An offense, for purposes of the Double Jeopardy the Government's contrary arguments on that score would Clause, which prohibits a person from being prevail. Pp. 1964 – 1966. twice put in jeopardy for the same offense, is defined by statutory elements, not by what might (b) This Court's cases reflect the sovereign-specific reading of be described in a looser sense as a unit of criminal the phrase “same offence.” Three antebellum cases—Fox v. conduct. U.S. Const. Amend. 5. Ohio, 5 How. 410, 46 U.S. 410, 12 L.Ed. 213; United States v. Marigold, 9 How. 560, 50 U.S. 560, 13 L.Ed. 257; and Moore 2 Cases that cite this headnote v. Illinois, 14 How. 13, 55 U.S. 13, 14 L.Ed. 306—laid the foundation that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate. Seventy years later, that foundation was cemented in United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, * Syllabus which upheld a federal prosecution that followed one by a

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State. This Court applied that precedent for decades until see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 1959, when it refused two requests to reverse course, see 76 L.Ed. 306. Pp. 1978 – 1980. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 694 Fed. Appx. 750, affirmed. 729, and it has reinforced that precedent over the following six decades, see, e.g., Puerto Rico v. Sanchez Valle, 579 U.S. ALITO, J., delivered the opinion of the Court, in which ––––, 136 S.Ct. 1863, 195 L.Ed.2d 179. Pp. 1965 – 1969. ROBERTS, C.J., and THOMAS, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. THOMAS, J., filed (c) Gamble claims that this Court's precedent contradicts a concurring opinion. GINSBURG, J., and GORSUCH, J., the common-law rights that the Double Jeopardy Clause filed dissenting opinions. was originally understood to engraft onto the Constitution, pointing to English and American cases and treatises. A departure from precedent, however, “demands special Attorneys and Law Firms justification,” Arizona v. Rumsey, 467 U.S. 203, 212, 104 *1962 Jeffrey B. Wall, Acting Solicitor General, Brian A. S.Ct. 2305, 81 L.Ed.2d 164, and Gamble's historical evidence Benczkowski, Assistant Attorney General, Eric J. Feigin, is too feeble to break the chain of precedent linking dozens Jenny C. Ellickson, Assistants to the Solicitor General, Ross of cases over 170 years. This Court has previously concluded B. Goldman, Attorney, Department of Justice, Washington, that the probative value of early English decisions on DC, for Respondent. which Gamble relies was “dubious” due to “confused and inadequate reporting.” Bartkus, 359 U.S. at 128, n. 9, 79 Barre C. Dumas, Mobile, AL, Robert N. Stander, Jones Day, S.Ct. 676. On closer inspection, that assessment has proven Washington, DC, Louis A. Chaiten, Emmett E. Robinson, accurate; the passing years have not made those early cases Jones Day, Cleveland, OH, Amanda K. Rice, Jones Day, any clearer or more valuable. Nor do the treatises cited by Detroit, MI, for Petitioner. Gamble come close to settling the historical question with enough force to meet his particular burden. His position is Louis A. Chaiten, Cleveland, OH, for Petitioner. also not supported by state court cases, which are equivocal Eric J. Feigin, Washington, DC, for Respondent. at best. Less useful still are the two federal cases cited by Gamble—Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19, which Kyle D. Hawkins, Solicitor General, for Texas, et al. as squares with the dual-sovereignty doctrine, and United States amicus curiae, in support of affirmance. v. Furlong, 5 Wheat. 184, 5 L.Ed. 64, which actually supports it. Pp. 1969 – 1978. Opinion

(d) Gamble's attempts to blunt the force of stare decisis Justice ALITO delivered the opinion of the Court. here do not succeed. He contends that the recognition *1963 We consider in this case whether to overrule a of the Double Jeopardy Clause's incorporation against the longstanding interpretation of the Double Jeopardy Clause of States washed away any theoretical foundation for the dual- the Fifth Amendment. That Clause provides that no person sovereignty rule. But this rule rests on the fact that only same- may be “twice put in jeopardy” “for *1964 the same sovereign prosecutions can involve the “same offence,” and offence.” Our double jeopardy case law is complex, but at its that is just as true after incorporation as before. Gamble also core, the Clause means that those acquitted or convicted of a argues that the proliferation of federal criminal laws has raised particular “offence” cannot be tried a second time for the same the risk of successive prosecutions under state and federal law “offence.” But what does the Clause mean by an “offence”? for the same criminal conduct, thus compounding the harm inflicted by precedent. But this objection obviously assumes [1] We have long held that a crime under one sovereign's that precedent was erroneous from the start, so it is only as laws is not “the same offence” as a crime under the laws of strong as the historical arguments found wanting. In any case, another sovereign. Under this “dual-sovereignty” doctrine, a eliminating the dual-sovereignty rule would do little to trim State may prosecute a defendant under state law even if the the reach of federal criminal law or prevent many successive Federal Government has prosecuted him for the same conduct state and federal prosecutions for the same criminal conduct, under a federal statute.

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Or the reverse may happen, as it did here. Terance Gamble, 1 In addressing that question, we follow the parties' lead convicted by Alabama for possessing a firearm as a felon, and assume, without deciding, that the state and federal now faces prosecution by the United States under its own offenses at issue here satisfy the other criteria for being felon-in-possession law. Attacking this second prosecution the “same offence” under our double jeopardy precedent. on double jeopardy grounds, Gamble asks us to overrule See Blockburger v. United States, 284 U.S. 299, 304, 52 the dual-sovereignty doctrine. He contends that it departs S.Ct. 180, 76 L.Ed. 306 (1932). from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are II the Clause's text, other historical evidence, and 170 years of Gamble contends that the Double Jeopardy Clause must precedent. Today we affirm that precedent, and with it the forbid successive prosecutions by different sovereigns decision below. because that is what the founding-era common law *1965 did. But before turning to that historical claim, see Part III infra, we review the Clause's text and some of the cases I Gamble asks us to overturn.

In November 2015, a local police officer in Mobile, Alabama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble's car, where he found A a loaded 9-mm handgun. Since Gamble had been convicted [2] We start with the text of the Fifth Amendment. Although of second-degree robbery, his possession of the handgun the dual-sovereignty rule is often dubbed an “exception” to violated an Alabama law providing that no one convicted the double jeopardy right, it is not an exception at all. On of “a crime of violence” “shall own a firearm or have the contrary, it follows from the text that defines that right one in his or her possession.” Ala. Code § 13A–11–72(a) in the first place. “[T]he language of the Clause ... protects (2015); see § 13A–11–70(2) (defining “crime of violence” individuals from being twice put in jeopardy ‘for the same to include robbery). After Gamble pleaded guilty to this offence,’ not for the same conduct or actions,” Grady v. state offense, federal prosecutors indicted him for the same Corbin, 495 U.S. 508, 529, 110 S.Ct. 2084, 109 L.Ed.2d 548 instance of possession under a federal law—one forbidding (1990), as Justice Scalia wrote in a soon-vindicated dissent, those convicted of “a crime punishable by imprisonment for a see United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, term exceeding one year ... to ship or transport in interstate or 125 L.Ed.2d 556 (1993) (overruling Grady). And the term foreign commerce, or possess in or affecting commerce, any “ ‘[o]ffence’ was commonly understood in 1791 to mean firearm or ammunition.” 18 U.S.C. § 922(g)(1). ‘transgression,’ that is, ‘the Violation or Breaking of a Law.’ ” Grady, 495 U.S. at 529, 110 S.Ct. 2084 (Scalia, J., dissenting) Gamble moved to dismiss on one ground: The federal (quoting Dictionarium Britannicum (Bailey ed. 1730)). See indictment was for “the same offence” as the one at issue in also 2 R. Burn & J. Burn, A New Law Dictionary 167 (1792) his state conviction and thus exposed him to double jeopardy. (“OFFENCE, is an act committed against law, or omitted But because this Court has long held that two offenses “are where the law requires it”). As originally understood, then, not the ‘same offence’ ” for double jeopardy purposes if an “offence” is defined by a law, and each law is defined “prosecuted by different sovereigns,” Heath v. Alabama, 474 by a sovereign. So where there are two sovereigns, there U.S. 82, 92, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), the are two laws, and two “offences.” See Grady, 495 U.S. at District Court denied Gamble's motion to dismiss. Gamble 529, 110 S.Ct. 2084 (Scalia, J., dissenting) (“If the same then pleaded guilty to the federal offense while preserving conduct violates two (or more) laws, then each offense may his right to challenge the denial of his motion to dismiss on be separately prosecuted”); Moore v. Illinois, 14 How. 13, 17, double jeopardy grounds. But on appeal the Eleventh Circuit 14 L.Ed. 306 (1852) (“The constitutional provision is not, that affirmed, citing the dual-sovereignty doctrine. 694 Fed. Appx. no person shall be subject, for the same act, to be twice put 750 (2017). We granted certiorari to determine whether to in jeopardy of life or limb; but for the same offence, the same 1 overturn that doctrine. 585 U.S. ––––, 138 S.Ct. 2707, 201 violation of law, no person's life or limb shall be twice put in L.Ed.2d 1095 (2018). jeopardy” (emphasis added)).

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Faced with this reading, Gamble falls back on an episode objected to ... [t]his circumvention of the judgment of the from the Double Jeopardy Clause's drafting history. 2 The victimized community.” Amar, 84 Geo. L. Rev., at 687, first Congress, working on an earlier draft that would have n. 181. Yet on Gamble's reading, the same Founders who banned “ ‘more than one trial or one punishment for the same quite literally revolted against the use of acquittals abroad offence,’ ” voted down a proposal to add “ ‘by any law of the to bar criminal prosecutions here would soon give us an United States.’ ” 1 Annals of Cong. 753 (1789). In rejecting Amendment allowing foreign acquittals to spare domestic this addition, Gamble surmises, Congress must have intended criminals. We doubt it. to bar successive prosecutions regardless of the sovereign bringing the charge. We see no reason to abandon the sovereign-specific reading of the phrase “same offence,” from which the dual-sovereignty rule immediately follows. 2 Gamble also cites founding-era uses of the word “offence” that are not tied to violations of a sovereign's laws, but the examples are not very telling. Some, for instance, play on the unremarkable fact that at the B founding, “offence” could take on a different sense in nonlegal settings, much as “offense” does today. In this [4] Our cases reflect the same reading. A close look at them vein, Gamble cites a 19th-century dictionary defining reveals how fidelity to the Double Jeopardy Clause's text does “offense” broadly as “any transgression of law, divine more than honor the formal difference between two distinct or human; a crime; sin; act of wickedness or omission criminal codes. It honors the substantive differences between of duty.” 2 N. Webster, An American Dictionary of the interests that two sovereigns can have in punishing the the English Language (1828). But the question is what same act. “offence” meant in legal contexts. See Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852) (“An offence, The question of successive federal and state prosecutions in its legal signification, means the transgression of a law...” (emphasis added)). arose in three antebellum cases implying and then spelling out the dual-sovereignty doctrine. The first, Fox v. Ohio, 5 Even if that inference were justified—something that the [3] How. 410, 12 L.Ed. 213 (1847), involved an Ohio prosecution Government disputes—it would count for little. The private for the passing of counterfeit coins. The defendant argued intent behind a drafter's rejection of one version of a text that since Congress can punish counterfeiting, the States must is shoddy evidence of the public meaning of an altogether be barred from doing so, or else a person could face two different text. Cf. United States v. Craft, 535 U.S. 274, 287, trials for the same offense, contrary to the Fifth Amendment. 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (“[F]ailed legislative We rejected the defendant's premise that under the Double proposals are a particularly dangerous ground on which to rest Jeopardy Clause “offences falling within the competency an interpretation of a prior statute” (internal quotation marks of different authorities to restrain or punish them would omitted)). not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.” Id., Besides, if we allowed conjectures about purpose to inform at 435. Indeed, we observed, the nature of the crime or its our reading of the text, the Government's conjecture would effects on “public safety” might well “deman[d]” separate prevail. The Government notes that the Declaration *1966 prosecutions. Ibid. Generalizing from this point, we declared of Independence denounced King George III for “protecting in a second case that “the same act might, as to its character [British troops] by a mock Trial, from punishment for any and tendencies, and the consequences it involved, constitute Murders which they should commit on the Inhabitants of an offence against both the State and Federal governments, these States.” ¶ 17. The Declaration was alluding to “the and might draw to its commission the penalties denounced so-called Murderers' Act, passed by Parliament after the by either, as appropriate to its character in reference to each.” Boston Massacre,” Amar, Sixth Amendment First Principles, United States v. Marigold, 9 How. 560, 569, 13 L.Ed. 257 84 Geo. L. J. 641, 687, n. 181 (1996), a law that allowed (1850). British officials indicted for murder in America to be “ ‘tried in England, beyond the control of local juries.’ ” Ibid. A third antebellum case, Moore v. Illinois, 14 How. 13, 55 (quoting J. Blum et al., The National Experience 95 (3d ed. U.S. 13, 14 L.Ed. 306, expanded on this concern for the 1973)). “During the late colonial period, Americans strongly different interests of separate sovereigns, after tracing it to

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000113 6 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... the text in the manner set forth above. Recalling that the Fifth Amendment prohibits double jeopardy not “for the same We cemented that foundation 70 years after the last of ac[t]” but “for the same offence,” and that “[a]n offence, those antebellum cases, in a decision upholding a federal in its legal signification, means the transgression of a law,” prosecution that followed one by a State. See United States id., at 19, we drew the now-familiar inference: A single act v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 “may be an offence or transgression of the laws of” two (1922) (“[A]n act denounced as a crime by both national and sovereigns, and hence punishable by both, id., at 20. Then state sovereignties is an offense against the peace and dignity we gave color to this abstract principle—and to the diverse of both and may be punished by each”). And for decades interests it might vindicate—with an example. An assault on more, we applied our precedent without qualm or quibble. a United States marshal, we said, would offend against the See, e.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, Nation and a State: the first by “hindering” the “execution 89 L.Ed. 1495 (1945); Jerome v. United States, 318 U.S. 101, *1967 of legal process,” and the second by “breach[ing]” the 63 S.Ct. 483, 87 L.Ed. 640 (1943); Puerto Rico v. Shell Co. “peace of the State.” Ibid. That duality of harm explains how (P. R.), Ltd., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937); “one act” could constitute “two offences, for each of which Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. [the offender] is justly punishable.” Ibid. 1036 (1927); Hebert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270 (1926). When petitioners in 1959 asked [5] This principle comes into still sharper relief when we us twice to reverse course, we twice refused, finding “[n]o consider a prosecution in this country for crimes committed consideration or persuasive reason not presented to the Court abroad. If, as Gamble suggests, only one sovereign may in the prior cases” for disturbing our “firmly established” prosecute for a single act, no American court—state or federal doctrine. Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. —could prosecute conduct already tried in a foreign court. 666, 3 L.Ed.2d 729; see also Bartkus v. Illinois, 359 U.S. 121, Imagine, for example, that a U.S. national has been murdered 79 S.Ct. 676, 3 L.Ed.2d 684. And then we went on enforcing in another country. That country could rightfully seek to it, adding another six decades of cases to the doctrine's history. punish the killer for committing an act of violence within its See, e.g., Puerto Rico v. Sánchez Valle, 579 U.S. ––––, 136 territory. The foreign country's interest lies in protecting the S.Ct. 1863, 195 L.Ed.2d 179 (2016); Heath v. Alabama, 474 peace in that territory rather than protecting the American U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); United States specifically. But the United States looks at the same conduct v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 and sees an act of violence against one of its nationals, a (1978); Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 person under the particular protection of its laws. The murder L.Ed.2d 207 (1977) ( per curiam). of a U.S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an *1968 C American abroad is a federal offense that can be prosecuted in our courts, see 18 U.S.C. § 2332(a)(1), and why customary We briefly address two objections to this analysis. international law allows this exercise of jurisdiction. [6] First, the dissents contend that our dual-sovereignty rule There are other reasons not to offload all prosecutions for errs in treating the Federal and State Governments as two crimes involving Americans abroad. We may lack confidence separate sovereigns when in fact sovereignty belongs to in the competence or honesty of the other country's legal the people. See post, at 1990 (opinion of GINSBURG, J.); system. Less cynically, we may think that special protection post, at 1999 (opinion of GORSUCH, J.). This argument is for U.S. nationals serves key national interests related to based on a non sequitur. Yes, our Constitution rests on the security, trade, commerce, or scholarship. Such interests principle that the people are sovereign, but that does not might also give us a stake in punishing crimes committed mean that they have conferred all the attributes of sovereignty by U.S. nationals abroad—especially crimes that might do on a single government. Instead, the people, by adopting harm to our national security or foreign relations. See, the Constitution, “ ‘split the atom of sovereignty.’ ” Alden e.g., § 2332a(b) (bombings). These examples reinforce v. Maine, 527 U.S. 706, 751, 119 S.Ct. 2240, 144 L.Ed.2d the foundation laid in our antebellum cases: that a crime 636 (1999) (alteration omitted) (internal quotation marks and against two sovereigns constitutes two offenses because each citation omitted). As we explained last Term: sovereign has an interest to vindicate.

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of the Federal Government and the States often overlap, “When the original States declared their independence, allowing both to regulate *1969 often results in two layers they claimed the powers inherent in sovereignty .... The of regulation. Taxation is an example that comes immediately Constitution limited but did not abolish the sovereign to mind. It is also not at all uncommon for the Federal powers of the States, which retained ‘a residuary and Government to permit activities that a State chooses to forbid inviolable sovereignty.’ The Federalist No. 39, p. 245 (C. or heavily restrict—for example, gambling and the sale of Rossiter ed. 1961). Thus, both the Federal Government alcohol. And a State may choose to legalize an activity that and the States wield sovereign powers, and that is why federal law prohibits, such as the sale of marijuana. So while our system of government is said to be one of ‘dual our system of federalism is fundamental to the protection of sovereignty.’ Gregory v. Ashcroft, 501 U.S. 452, 457 [111 liberty, it does not always maximize individual liberty at the S.Ct. 2395, 115 L.Ed.2d 410] (1991).” Murphy v. National expense of other interests. And it is thus quite extraordinary Collegiate Athletic Assn., 584 U.S. ––––, ––––, 138 S.Ct. to say that the venerable dual-sovereignty doctrine represents 1461, 1475, 200 L.Ed.2d 854 (2018). a “ ‘desecrat[ion]’ ” of federalism. Post, at 2000 (opinion of GORSUCH, J.). It is true that the Republic is “ ‘ONE WHOLE,’ ” post, at 1990 (opinion of GINSBURG, J.) (quoting The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton)); accord, post, at 1999 (opinion of GORSUCH, J.). But there is a difference III between the whole and a single part, and that difference Gamble claims that our precedent contradicts the common- underlies decisions as foundational to our legal system as law rights that the Double Jeopardy Clause was originally McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). understood to engraft onto the Constitution—rights stemming There, in terms so directly relevant as to seem presciently from the “common-law pleas of auterfoits acquit [former tailored to answer this very objection, Chief Justice Marshall acquittal] and auterfoits convict [former conviction].” Grady, distinguished precisely between “the people of a State” and 495 U.S. at 530, 110 S.Ct. 2084 (Scalia, J., dissenting). “[t]he people of all the States,” id., at 428, 435; between These pleas were treated as “reason[s] why the prisoner the “sovereignty which the people of a single state possess” ought not to answer [an indictment] at all, nor put himself and the sovereign powers “conferred by the people of the upon his trial for the crime alleged.” 4 W. Blackstone, United States on the government of the Union,” id., at Commentaries on the Laws of England 335 (1773) 429–430; and thus between “the action of a part” and “the (Blackstone). Gamble argues that those who ratified the action of the whole,” id., at 435–436. In short, McCulloch's Fifth Amendment understood these common-law principles famous holding that a State may not tax the national bank (which the Amendment constitutionalized) to bar a domestic rested on a recognition that the States and the Nation have prosecution following one by a foreign nation. For support, different “interests” and “right[s].” Id., 431, 436. One strains he appeals to early English and American cases and treatises. to imagine a clearer statement of the premises of our dual- We have highlighted one hurdle to Gamble's reading: the sovereignty rule, or a more authoritative source. The United sovereign-specific original meaning of “offence.” But the States is a federal republic; it is not, contrary to Justice doctrine of stare decisis is another obstacle. GORSUCH's suggestion, post, at 2001 – 2002, a unitary state like the United Kingdom. [7] [8] [9] Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, Gamble and the dissents lodge a second objection to this line fosters reliance on judicial decisions, and contributes to of reasoning. They suggest that because the division of federal the actual and perceived integrity of the judicial process.” and state power was meant to promote liberty, it cannot Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 support a rule that exposes Gamble to a second sentence. L.Ed.2d 720 (1991). Of course, it is also important to be See post, at 1990 – 1991 (opinion of GINSBURG, J.); post, right, especially on constitutional matters, where Congress at 1999 – 2000 (opinion of GORSUCH, J.). This argument cannot override our errors by ordinary legislation. But even fundamentally misunderstands the governmental structure in constitutional cases, a departure from precedent “demands established by our Constitution. Our federal system advances special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, individual liberty in many ways. Among other things, it limits 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). This means that the powers of the Federal Government and protects certain something more than “ambiguous historical evidence” is basic liberties from infringement. But because the powers

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000115 8 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... required before we will “flatly overrule a number of major of the same homicide in an English tribunal, but the English decisions of this Court.” Welch v. Texas Dept. of Highways court held that the foreign prosecution barred retrial. and Public Transp., 483 U.S. 468, 479, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). And the strength of the case for adhering Everything for Gamble stems from this one unreported to such decisions grows in proportion to their “antiquity.” decision. To the extent that the cases he cites provide any Montejo v. Louisiana, 556 U.S. 778, 792, 129 S.Ct. 2079, support for his argument—and for the most part, they do not 173 L.Ed.2d 955 (2009). Here, as noted, Gamble's historical —those cases purport to take their cue from the Hutchinson arguments must overcome numerous “major decisions of episode; the same is true of the treatises on which Gamble this Court” spanning 170 years. In light of these factors, relies. Gamble's historical evidence must, at a minimum, be better than middling. So what evidence do we have about what actually happened to Hutchinson? The most direct evidence is a report of his And it is not. The English cases are a muddle. Treatises offer application for bail before the Court of King's Bench. The spotty support. And early state and federal cases are by turns report spans all of one sentence: equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified “On Habeas Corpus it appeared the Defendant was the Fifth Amendment took it to bar successive prosecutions committed to Newgate on suspicion of Murder in Portugal, under different sovereigns' laws—much less do so with which by Mr. Attorny being a Fact out of the Kings enough force to break a chain of precedent linking dozens of Dominions, is not triable by Commission, upon 35 H. 8. cases over 170 years. Cap. 2. §. I. N. 2. but by a Constable and Marshal, and the Court refused to Bail him, & c.” Rex v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677).

A From this report, all that we can tell about the court's thinking is that it found no convincing reason to grant bail, as was Gamble's core claim is that early English cases reflect 3 an established common-law *1970 rule barring domestic typical in murder cases. The rest of the report concerns prosecution following a prosecution for the same act under claims by an attorney. We are told that he contested the a different sovereign's laws. But from the very dawn of the jurisdiction of the commission before which Hutchinson was common law in medieval England until the adoption of the to be tried, apparently a special commission that would have Fifth Amendment in 1791, there is not one reported decision issued pursuant to a statute enacted under Henry VIII. 4 barring a prosecution based on a prior trial under foreign law. The commission lacked jurisdiction, the attorney seemed to We repeat: Gamble has not cited and we have not found a suggest, because the crime had occurred in Portugal and thus single pre-Fifth Amendment case in which a foreign acquittal “out of the Kings Dominions.” The attorney claimed that or conviction barred a second trial in a British or American jurisdiction lay instead with “a Constable and Marshal”—an court. Given this void, Gamble faces a considerable challenge apparent reference to the High Court of Chivalry, which dealt in convincing us that the Fifth Amendment was originally with treason and murder committed abroad. 5 But what, if understood to establish such a bar. *1971 anything, did the King's Bench make of the attorney's jurisdictional claims? And more to the point, what happened Attempting to show that such a bar was available, Gamble after bail was denied? The bail report does not say. points to five early English decisions for which we have case reports. We will examine these in some detail, but we note at 3 See J. Beattie, Crime and the Courts in England: 1660– the outset that they play only a secondary role for Gamble. 1800, pp. 281–282 (1986).

The foundation of his argument is a decision for which we 4 Although this Act reached conduct committed “out of the have no case report: the prosecution in England in 1677 of King Majesties Realme of Englande and other his Graces a man named Hutchinson. (We have a report of a decision [Dominions],” Acte concerning the triall of Treasons denying Hutchinson bail but no report of his trial.) As told 1543–1544, 35 Hen. 8 ch. 2 (1543–1544), it applied only by Gamble, Hutchinson, having been tried and acquitted in to treasons and misprisions of treason—not to homicide, a foreign court for a murder committed abroad, was accused of which Hutchinson was accused.

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5 See G. Squibb, The High Court of Chivalry 54, 147–148 and what the court said there—far from supporting Gamble's (1959) (Squibb); 4 Blackstone 267. argument—cuts against it. Gage involved a bill in chancery for an account of money deposited with a banker in Paris. If Hutchinson did ultimately appear before the Court of The defendants pleaded, as a bar to this lawsuit, “a sentence” Chivalry—and if that court accepted a plea of prior acquittal “given upon” the same demand in a French court. Ibid. in Portugal—this would be paltry evidence of any common- In addressing this plea, Lord Chancellor Hardwicke first law principle, which is what Gamble cites Hutchinson to determined that foreign judgments are not binding in an establish. After all, the High Court of Chivalry was a civil- English court of law. Here his reasoning was very similar to law court prohibited from proceeding under the common law that found in our dual-sovereignty decisions. Because each (unlike every other English court of the time save Admiralty). judgment rests on the authority of a particular sovereign, 8 Ric. 2 ch. 5; see also Squibb 162; id., at xxv–xxvi (“The the Chancellor thought, it cannot bind foreign courts, which essential distinction between the Court of Chivalry and other operate by the power of a different sovereign. Id., at 263–264, courts is ... that it administers justice in relation to those 27 Eng. Rep., at 824. military matters which are not governed by the common law”). Nor would it be any surprise that we have no report of Turning next to courts of equity, the Lord Chancellor saw the proceeding; in fact, “[t]here is no report of a case in which no reason that the rule should be any different; there too, he a judge of the Court [of Chivalry] has set out the reasons for thought, a foreign judgment is not binding. Id., at 273, 27 his decision earlier than the [20th] century.” Id., at 162. Eng. Rep., at 827. But he did allow that in equity a foreign judgment *1972 could serve as “evidence, which may affect In the end, we have only two early accounts from judges of the right of [a plaintiff] when the cause comes to be heard.” what finally became of Hutchinson, and both are indirect and Ibid. shaky. First, they appear in the reports of cases decided in the Court of Chancery more than a half century after Hutchinson. Elaborating on why foreign judgments did not bind English Second, both judges cite only one source, and it is of lower courts, whether of law or equity, the Lord Chancellor authority than their own: namely, an account of Hutchinson explained why Hutchinson was “no proof” to the contrary. given by an interested party (a defendant) in a previous, non- In the Chancellor's telling, Hutchinson was not indicted criminal case—an account on which the court in that case did by the Court of King's Bench, which could have tried a not rely or even comment. 6 Insofar as our two judges seem to murder committed in England, 7 because that court had no add their own details to the Hutchinson saga, we are not told jurisdiction over a homicide committed in Portugal. Gage, where they obtained this information or whether it reflects Ridge. T. H., at 271, 27 Eng. Rep., at 826–827. Instead, mere guesses as to how gaps in the story should be filled in, Hutchinson was (as the bail decision indicates) before that decades after the fact. Finally, the two judges' accounts are court on a writ of habeas corpus, and his case “was referred to not entirely consistent. Still, they are the only early judicial the judges to know whether a commission should issue” under glosses on Hutchinson that we have, so we will work with a statute similar to the one mentioned in the bail decision. them. Ibid., 27 Eng. Rep., at 827; see 33 Hen. 8 ch. 28 (1541– 1542). 8 “And,” he explained, “the judges very rightly and 6 See Gage v. Bulkeley, Ridg. T. H. 263, 271, 27 Eng. Rep. mercifully thought not, because he had undergone one trial 824, 826–827 (Ch. 1744) (citing Beake v. Tyrrell, 1 Show. already.” Gage, Ridg. T. H., at 271–272, 27 Eng. Rep., at 827 K. B. 6); Burrows v. Jemino, 2 Str. 733, 25 Eng. Rep. 235 (K. B. 1726) (same). As noted, the report cited by (emphasis added). This suggests that Hutchinson was spared both judges—which also appears at 89 Eng. Rep. 411 (K. retrial as a matter of discretion (“merc[y]”)—which must be B. 1688)—mentions Hutchinson only in summarizing a true if the Chancellor was right that foreign judgments were defendant's argument. So does the only other source cited not binding. Indeed, at least one modern scholar agrees (on by either judge. See Gage, Ridg. T. H., at 271, 27 Eng. other grounds as well) that the result in Hutchinson may have Rep., at 826–827 (citing Beak v. Thyrwhit, 3 Mod. 194, been based on “expediency rather than law.” M. Friedland, 87 Eng. Rep. 124 (K. B. 1688)). Below we discuss in Double Jeopardy 362–363 (1969). detail the case that figures in these two reports. See infra, at 1973, and n. 11. 7 4 Blackstone 262. The more extensive account appears in the case of Gage v. Bulkeley, Ridg. T. H. 263, 27 Eng. Rep. 824 (Ch. 1744),

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8 This statute authorized commissioners to try certain Jamineau in Mos. 1, 25 Eng. Rep. 235; as Burrows v. defendants for acts of treason or murder committed Jemineau in 2 Eq. Ca. Abr. 476, 22 Eng. Rep. 405; and “in whatsoever other Shire or place, within the King's as Burrows v. Jemino in 2 Eq. Ca. Abr. 524, 22 Eng. Rep. dominions or without.” But “[d]espite the words ‘or 443. without’, contemporary opinion seems not to have Gamble's other cases have even less force. The “most regarded the extra-territorial operation of this Act as instructive” case, he claims, see Brief for Petitioner 13, is clear.” Squibb 149. Indeed, the statute cited in the the 1775 case of King v. Roche, 1 Leach 134, 10 168 Eng. Hutchinson bail report, dated to just two years later, Rep. 169 (K.B.), but that is a curious choice since the Roche cited lingering “doubtes and questions” about whether English courts could try treason committed abroad (in court does not so much as mention Hutchinson or even tacitly the course of clarifying that treason and misprisions of affirm its supposed holding. The defendant in Roche entered treason abroad could indeed be tried in England). 35 Hen. two pleas: prior acquittal abroad and not guilty of the charged 8 ch. 2, § I. crime. All that the Roche court held was that, as a procedural matter, it made no sense to charge the jury with both pleas at In the end, then, Gage is doubly damaging to Gamble. once, because a finding for Roche on the first (prior acquittal) First, it squarely rejects the proposition that a litigant in would, if successful, bar consideration of the second (not an English court—even a civil litigant in equity—had a guilty). Roche, 1 Leach, at 135, 168 Eng. Rep., at 169. But on right to the benefit of a foreign judgment, a right that the our key question—whether a plea based on a foreign acquittal Fifth Amendment might have codified. And second, Gage could be successful—the Roche court said absolutely nothing; undermines Gamble's chief historical example, Hutchinson, it had no occasion to do so. Before the prosecution could reply by giving a contrary reading of that case—and doing so, no to Roche's plea of prior acquittal, he withdrew it, opting for less, in one of the only two judicial accounts of Hutchinson a full trial. The name Hutchinson does not appear even in that we have from before the Fifth Amendment. the marginalia of the 1789 edition of Roche, which existed in 1791. See Captain Roche's Case, 1 Leach at 138–139. The other account appears in Burrows v. Jemino, 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726). 9 In Burrows, a party 10 This case is reported as Captain Roche's Case in 1 Leach that was sued in England on a bill of exchange sought 138 (1789 ed.) and in 2 Leach 125 (1792 ed.). an injunction against this suit in the Court of Chancery, contending that the suit was barred by the judgment of a court Hutchinson is mentioned in connection with Roche only after in Italy. In explaining why he would grant the injunction, the Fifth Amendment's ratification, and only in a compiler's Lord Chancellor King cited Hutchinson, which he thought annotation to the 1800 edition of the Roche case report. See had involved an acquittal in Spanish court that was “allowed 168 Eng. Rep., at 169, n. (a). That annotation in turn cites to be a good bar to any proceedings here.” 2 Str. at 733, one case as support for its reading of Hutchinson: Beak v. 93 Eng. Rep., at 815. This remark, showing that at least Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688). But one English judge before the founding saw Hutchinson as Beak did not involve a foreign prosecution; indeed, it did Gamble does, provides a modicum of support for Gamble's not involve a prosecution at all. It was an admiralty case argument. But that support softens just a few lines down for trover and conversion of a ship, and—more to the point in the report, where the Chancellor discusses the status of —Hutchinson is discussed only in the defendant's argument foreign *1973 judgments in courts of law in particular (as in that case, not the court's response. A report relaying the distinct from courts of equity like his own)—i.e., the courts actual decision in Beak shows that the court ultimately said that actually applied the common-law rules later codified by nothing about the defendant's Hutchinson argument one way the Fifth Amendment. Here the Chancellor explained that or another. See Beake v. Tyrrell, 1 Show. K. B. 6, 89 Eng. while he personally would have accepted an Italian judgment Rep. 411 (1688). 11 This same defendant's argument was the as barring any suit at law, “other Judges might be of a different only source of information about Hutchinson on which the opinion.” Ibid. As a whole, then, the Chancellor's comments Chancellors in Gage and Burrows explicitly relied, as we in Burrows can hardly be cited to prove that the common law noted above. All later accounts of Hutchinson seem to stem had made up its mind on this matter; just the opposite. from this one shallow root.

9 This case is also reported as Burrows v. Jemineau in Sel. 11 This decision is also reported as Beake v. Tirrell, Com. Ca. t. 69, 25 Eng. Rep. 228 (Ch. 1726); as Burroughs v. 120, 90 Eng. Rep. 379.

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The last of Gamble's five pre-Fifth Amendment cases, Rex that existed in legend, not case law. In any event, the evidence v. THOMAS, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664), that this right was thought to be settled is very thin. did not even involve a foreign prosecution. The defendant was indicted for murder in England, and he pleaded a prior Gamble's argument is based on treatises, but they are not acquittal by a Welsh court. But Wales was then part of the nearly as helpful as he claims. Alone they do not come close “kingdom of England”; its laws were “the laws of England to settling the historical question with enough force to meet and no other.” 1 Blackstone 94–95; see THOMAS, 1 Lev., at Gamble's particular burden under stare decisis. 118, 83 Eng. Rep., at 326–327. So the prior trial in THOMAS was not under another sovereign's laws, making it totally Gamble begins with Blackstone, but he reads volumes into a irrelevant for present purposes. flyspeck. In the body of his Commentaries, all that Blackstone stated was that successive prosecutions could be barred by Summing up the import of the preratification cases on which prior acquittals by “any court having competent jurisdiction Gamble's argument *1974 rests, we have the following: of the offence.” 4 Blackstone 335. This is simply a statement (1) not a single reported case in which a foreign acquittal of the general double-jeopardy rule, without a word on or conviction barred a later prosecution for the same act in separate sovereigns. So Gamble directs our attention to a either Britain or America; (2) not a single reported decision footnote that appears after the phrase “any court having in which a foreign judgment was held to be binding in a competent jurisdiction.” The footnote refers to the report civil case in a court of law; (3) fragmentary and not entirely of Beak v. Thyrwhit, which, as noted, merely rehearses the consistent evidence about a 17th-century case in which a argument of the defendant in that case, who in turn mentioned defendant named Hutchinson, having been tried and acquitted Hutchinson—but not in a criminal prosecution, much less one for murder someplace in the Iberian Peninsula, is said to preceded by a foreign trial. This thread tying Blackstone to have been spared a second trial for this crime on some Hutchinson—a thread woven through footnotes and reports ground, perhaps out of “merc[y],” not as a matter of right; of reports but not a single statement by a court (or even by (4) two cases (one criminal, one in admiralty) in which a a party to an actual prosecution)—is tenuous evidence that party invoked a prior foreign judgment, but the court did Blackstone endorsed Gamble's reading of Hutchinson. not endorse or rest anything on the party's reliance on that judgment; and (5) two Court of Chancery cases actually When Gamble's attorney was asked at argument which other holding that foreign judgments were not (or not generally) treatises he found most likely to have informed those who treated as barring trial at common law. This is the flimsy ratified the Fifth Amendment, he offered four. See Tr. of foundation in case law for Gamble's argument that when the Oral Arg. 30–31. But two of the four treatises did not exist Fifth Amendment was ratified, it was well understood that a when the Fifth Amendment was ratified. See 1 J. Chitty, foreign criminal judgment would bar retrial for the same act. Criminal Law 458 (1816); 1 T. Starkie, Criminal Pleading 300–301, n. h (1814). And a third discusses not a single case Surveying the pre-Fifth Amendment cases in 1959, we involving a prior prosecution under *1975 foreign law. See concluded that their probative value was “dubious” due to 2 W. Hawkins, Pleas of the Crown 372 (1739). “confused and inadequate reporting.” Bartkus, 359 U.S. at 128, n. 9, 79 S.Ct. 676. Our assessment was accurate then, and That leaves one treatise cited by Gamble that spoke to this the passing years have not made those early cases any clearer issue before ratification, F. Buller, An Introduction to the Law or more valuable. Relative to Trials at Nisi Prius (5th ed. 1788). That treatise concerned the trial of civil cases, id., at 2, and its discussion of prior judgments appeared under the heading “Of Evidence in general,” id., at 221. After considering the evidentiary B value of such documents as acts of Parliament, deeds, and Not to worry, Gamble responds: Whatever the English courts depositions, Buller addressed what we would later call issue actually did prior to adoption of the Fifth Amendment, by that preclusion. Lifting language from an earlier publication, H. time the early English cases were widely thought to support Bathurst, The Theory of Evidence 39 (1761), Buller wrote his view. This is a curious argument indeed. It would have us that a final judgment was “conclusive Evidence” “against hold that the Fifth Amendment codified a common-law right all the World” of the factual determinations underlying the judgment. Buller, Nisi Prius, at 245. And it is on this basis that

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Buller (again lifting from Bathurst) said that even someone he notes that the Court in District of Columbia v. Heller, acquitted of a crime in Spain “might,” upon indictment in 554 U.S. 570, 605–610, 128 S.Ct. 2783, 171 L.Ed.2d 637 England, “plead the Acquittal in Spain in Bar.” Ibid. (2008), took treatises of a similar vintage to shed light on the public understanding in 1791 of the right codified by This endorsement of the preclusive effect of a foreign the Second Amendment. But the Heller Court turned to judgment in civil litigation (which even today is not uniformly these later treatises only after surveying what it regarded accepted in this country 12 ) provides no direct support for *1976 as a wealth of authority for its reading—including the Gamble since his prior judgment was one of conviction, not text of the Second Amendment and state constitutions. The acquittal. (There is, after all, a major difference between 19th-century treatises were treated as mere confirmation of the preclusive effect of a prior acquittal and that of a what the Court thought had already been established. Here prior conviction: Only the first would make a subsequent Gamble's evidence as to the understanding in 1791 of the prosecution pointless, by requiring later courts to assume double jeopardy right is not at all comparable. a defendant's innocence from the start.) And in any case, the fleeting references in the Buller and Bathurst treatises 13 See, e.g., F. Wharton, A Treatise on the Law of Homicide are hardly sufficient to show that the Members of the First in the United States 283 (1855); F. Wharton, A Treatise Congress and the state legislators who ratified the Fifth on the Criminal Law of the United States 137 (1846); L. Amendment understood the Double Jeopardy Clause to bar a MacNally, The Rules of Evidence on Pleas of the Crown prosecution in this country after acquittal abroad for the same 428 (1802). criminal conduct.

C 12 Compare Restatement (Fourth) of Foreign Relations Law of the United States § 481 (2018) (With a When we turn from 19th-century treatises to 19th-century few specified exceptions, “a final, conclusive, and state cases, Gamble's argument appears no stronger. The enforceable judgment of a court of a foreign state last time we looked, we found these state cases to be granting or denying recovery of a sum of money, or “inconclusive.” Bartkus, 359 U.S. at 131, 79 S.Ct. 676. determining a legal controversy, is entitled to recognition They seemed to be evenly split and to “manifest conflict[s] by courts in the United States”) and Restatement in conscience” rather than confident conclusions about the (Second) of Conflict of Laws § 98, Comment b. (1969) common law. Ibid. Indeed, two of those cases manifested (“In most respects,” judgments rendered in a foreign nothing more than a misreading of a then-recent decision of nation satisfying specified criteria “will be accorded the same degree of recognition to which sister State ours. Id., at 130, 79 S.Ct. 676. We see things no differently judgments are entitled”), with, e.g., Derr v. Swarek, today. 766 F. 3d 430, 437 (CA5 2014) (recognition of foreign judgments is not required but is a matter of comity); The distinction between believing successive prosecutions by Diorinou v. Mezitis, 237 F. 3d 133, 142–143 (CA2 separate sovereigns unjust and holding them unlawful appears 2001) (same); id., at 139–140 (“It is well-established right on the face of the first state case that Gamble discusses. that United States courts are not obliged to recognize In State v. Brown, 2 N. C. 100, 101 (1794), the court opined judgments rendered by a foreign state, but may choose that it would be “against natural justice” for a man who stole to give res judicata effect to foreign judgments on the a horse in the Southwest Territory to be punished for theft in basis of comity” (emphasis in original; internal quotation North Carolina just for having brought the horse to that State. marks omitted)); MacArthur v. San Juan County, 497 To avoid this result, the Brown court simply construed North F. 3d 1057, 1067 (CA10 2007) (“Comity is not an Carolina's theft law not to reach the defendant's conduct. But inexorable command ... and a request for recognition of it did so precisely because the defendant otherwise could a foreign judgment may be rebuffed on any number of grounds”); Guinness PLC v. Ward, 955 F. 2d 875, 883 face two prosecutions for the same act of theft—despite (CA4 1992) (“The effect to be given foreign judgments the common-law rule against double jeopardy for the same has therefore historically been determined by more “offence”—since “the offence against the laws of this State, flexible principles of comity”). and the offence against the laws of [the Territory] are distinct; and satisfaction made for the offence committed against this Gamble attempts to augment his support by citing treatises State, is no satisfaction for the offence committed against the published after the Fifth Amendment was adopted. 13 And laws there.” Ibid. Far from undermining the dual-sovereignty

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000120 13 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... rule, Brown expressly affirms it, rejecting outright the idea jeopardy is but offhand dictum. But in an array of that a judgment in one sovereign's court could “be pleadable state cases there may be found full consideration of the in bar to an indictment” in another's. Ibid. arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not Other state courts were divided. Massachusetts and Michigan proscribing a second prosecution where the first was by a different government and for violation of a different courts thought that at least some trials in either federal or state statute.” (Footnote omitted.) court could bar prosecution in the other, see Commonwealth v. Fuller, 49 Mass. 313, 318 (1844); Harlan v. People, 1 Doug. 207, 212 (Mich. 1843), but those antebellum cases are poor D images of the founding-era common law, resting as they do on what we have explained, see Bartkus, 359 U.S. at 130, 79 Less useful still, for Gamble's purposes, are the two early S.Ct. 676, was a misreading of our then-recent decision in Supreme Court cases on which he relies. In the first, a member Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19 (1820), which we of the Pennsylvania militia was tried by a state court-martial discuss below. A Vermont court did take the same view based for the federal offense of deserting the militia. See Houston v. on its own analysis of the question, State v. Randall, 2 Aik. Moore, 5 Wheat. 1, 18 U.S. 1, 5 L.Ed. 19 (1820). The accused 89, 100–101 (1827), but just a few years later a Virginia court objected that the state court-martial lacked jurisdiction to try declared the opposite, Hendrick v. Commonwealth, 32 Va. this federal offense. Since the offense could be tried in federal 707, 713 (1834) (punishment for forgery under both federal court, the defendant argued, allowing the state court-martial and Virginia law is not double punishment for the “same to try him for this crime could expose him to successive offence” since “the law of Virginia punishes the forgery, not federal and state prosecutions for the same offense. Justice because it is an offence against the U. States, but because it is Washington answered that a ruling in either federal or state an offence against this commonwealth”). And South Carolina court would bar a second trial in the other. See id., at 31. But —a perfect emblem of the time—produced cases cutting both as we later explained, ways. See State v. Antonio, 2 Tread. 776, 781 (1816); State v. Tutt, 2 Bail. 44, 47–48 (1831). “that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanctions for This is not the quantum of support for Gamble's claim violation of a federal criminal law. As he viewed the matter, about early American common law that might withstand the two trials would not be of similar crimes arising out of his burden under stare decisis. And once we look beyond the same conduct; they would be of the same crime. Mr. the Nation's earliest years, the body of state-court decisions Justice Johnson agreed that if the state courts had become appears even less helpful to Gamble's position. We aptly empowered to try the defendant for the federal offense, *1977 summarized those cases in Bartkus, 359 U.S. at 134– then such a state trial would bar a federal prosecution. Thus Houston v. Moore can be cited only for the presence of a 136, 79 S.Ct. 676, and need not add to that discussion here. 14 bar in a case in which the second trial is for a violation of the very statute whose violation by the same conduct 14 As we put it in Bartkus, 359 U.S. at 134–136, 79 S.Ct. has already been tried in the courts of another government 676: empowered to try that question.” Bartkus, 359 U.S. at 130, “Of the twenty-eight States which have considered the 79 S.Ct. 676 (citations omitted). validity of successive state and federal prosecutions as against a challenge of violation of either a state In other words, Justice Washington taught only that the constitutional double-jeopardy provision or a common- law prohibits two sovereigns (in that case, Pennsylvania law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second and the United States) from both trying an offense against prosecution was or would be barred. These States were one of them (the United States). That is consistent with not bound to follow this Court and its interpretation of the our doctrine allowing successive prosecutions for offenses Fifth Amendment. The rules, constitutional, statutory, or against separate sovereigns. In light of this reading of common law which bound them, drew upon the same Houston, the case does not undercut our dual-sovereignty experience as did the Fifth Amendment, but were and are doctrine. of separate and independent authority. “Not all of the state cases manifest careful reasoning, It may seem strange to think of state courts as prosecuting for in some of them the language concerning double crimes against the United States, but that is just what

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As therefore he has renounced all the benefits of society an offence against the State, and a very different one from and government, and has reduced himself afresh to the that committed against the *1978 United States” (emphasis savage state of nature, by declaring war against all added)); 1 J. Kent, Commentaries on American Law 373–374 mankind, all mankind must declare war against him: (1826) (“[M]any ... acts of [C]ongress ... permit jurisdiction, so that every community has a right, by the rule of over the offences therein described, to be exercised by self-defence, to inflict that punishment upon him, which state magistrates and courts,” and what Houston bars are every individual would in a state of nature have been successive prosecutions for the same “crime against the otherwise entitled to do, for any invasion of his person United States”). Even the scholar Gamble cites for his cause or personal property” (footnote omitted)). finds Houston not “[o]n point” because it “was discussing the Thus, of the two federal cases that Gamble cites against the jurisdiction of the state court to try a crime against the nation dual-sovereignty rule, Houston squares with it and Furlong and impose a fine payable to the latter government.” Grant, supports it. Together with the muddle in the early state cases, Successive Prosecutions by State and Nation: Common Law this undermines Gamble's claim that the early American and British Empire Comparisons, 4 UCLA L. Rev. 1, 7, and bench and bar took the Fifth Amendment to proscribe n. 27 (1956) (citing Warren, Federal Criminal Laws and the successive prosecutions by different sovereigns. And without State Courts, 38 Harv. L. Rev. 545 (1925)). making a splash in the legal practice of the time, a few early treatises by themselves cannot unsettle almost two centuries Perhaps feeling Houston wobble, Gamble says pre-emptively of precedent. that if it is “inconclusive,” Brief for Petitioner 26, other cases are clear. But the other federal case on which he leans is worse for his argument. In United States v. Furlong, 5 Wheat. 184, 197, 5 L.Ed. 64 (1820), we said that an acquittal IV of piracy in the court of any “civilized State” would bar Besides appealing to the remote past, Gamble contends that prosecution in any other nation because piracy, as an “offence recent changes—one doctrinal, one practical—blunt the force within the criminal jurisdiction of all nations,” is “punished of stare decisis here. They do not. by all.” 15 Ending his quotation from Furlong at this point, Gamble gives the impression that Furlong rejects any dual- sovereignty rule. But that impression is shattered by the next sentence: “Not so with the crime of murder.” Ibid. As to A that crime, the Furlong Court was “inclined to think that If historical claims form the chorus of Gamble's argument, an acquittal” in the United States “would not have been his refrain is “incorporation.” *1979 In Gamble's telling, a good plea in a Court of Great Britain.” Ibid. (emphasis the recognition of the Double Jeopardy Clause's incorporation added). And that was precisely because murder is “punishable against the States, see Benton v. Maryland, 395 U.S. 784, under the laws of each State” rather than falling under some 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), washed away “universal jurisdiction.” Ibid. (emphasis added). When it any theoretical foundation for the dual-sovereignty rule, came to crimes that were understood to offend against more see United States v. Gaudin, 515 U.S. 506, 521, 115 than one sovereign, Furlong treated them as separate offenses S.Ct. 2310, 132 L.Ed.2d 444 (1995) (abrogating precedent —just as we have a dozen times since, and just as we do today. when “subsequent decisions of this Court” have “eroded” its foundations). But this incorporation-changes-everything 15 Piracy was understood as a violation of the law of argument trades on a false analogy. nations, which was seen as common to all. That is why any successive prosecution for piracy, being under the The analogy Gamble draws is to the evolution of our same law, would have been for the same offense. See doctrine on the Fourth Amendment right against unreasonable United States v. Smith, 5 Wheat. 153, 163, 5 L.Ed. 57, n. 16 a (1820) (quoting definitions of piracy by several ancient searches and seizures. We have long enforced this right

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000122 15 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... by barring courts from relying on evidence gathered in an prosecutions for the “same offense,” see Part II, supra—and illegal search. Thus, in Weeks v. United States, 232 U.S. that is just as true after incorporation as before. 383, 391–393, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the Court held that federal prosecutors could not rely on the fruits of an unreasonable search undertaken by federal agents. But B what if state or local police conducted a search that would have violated the Fourth Amendment if conducted by federal If incorporation is the doctrinal shift that Gamble invokes agents? Before incorporation, the state search would not have to justify a departure from precedent, the practical change violated the Federal Constitution, so federal law would not he cites is the proliferation of federal criminal law. Gamble have barred admission of the resulting evidence in a state says that the resulting overlap *1980 of federal and criminal prosecution. But by the very same token, under what was codes heightens the risk of successive prosecutions under termed “the silver-platter doctrine,” state authorities could state and federal law for the same criminal conduct. Thus, hand such evidence over to federal prosecutors for use in a Gamble contends, our precedent should yield to “ ‘far- federal case. See id., at 398, 34 S.Ct. 341. reaching systemic and structural changes’ ” that make our “earlier error all the more egregious and harmful.” South 16 He draws a similar analogy to the Fifth Amendment Dakota v. Wayfair, Inc., 585 U.S. ––––, ––––, 138 S.Ct. 2080, right against self-incrimination, but our response to his 2097, 201 L.Ed.2d 403 (2018). But unlike Gamble's appeal Fourth Amendment analogy would answer that argument to incorporation, this argument obviously assumes that the as well. dual-sovereignty doctrine was legal error from the start. So Once the Fourth Amendment was held to apply to the States the argument is only as strong as Gamble's argument about the as well as the Federal Government, however, the silver-platter original understanding of double jeopardy rights, an argument doctrine was scuttled. See Elkins v. United States, 364 U.S. that we have found wanting. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Now [11] Insofar as the expansion of the reach of federal criminal the fruits of unreasonable state searches are inadmissible in law has been questioned on constitutional rather than policy federal and state courts alike. grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. Gamble contends that the incorporation of the Double See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–74, 125 S.Ct. Jeopardy Clause should likewise end the dual-sovereignty 2195, 162 L.Ed.2d 1 (2005) (THOMAS, J., dissenting). rule, but his analogy fails. The silver-platter doctrine was Eliminating the dual-sovereignty rule would do little to trim based on the fact that the state searches to which it applied the reach of federal criminal law, and it would not even did not at that time violate federal law. Once the Fourth prevent many successive state and federal prosecutions for Amendment was incorporated against the States, the status the same criminal conduct unless we also overruled the long- of those state searches changed. Now they did violate federal settled rule that an “offence” for double jeopardy purposes law, so the basis for the silver-platter doctrine was gone. See is defined by statutory elements, not by what might be Elkins, 364 U.S. at 213, 80 S.Ct. 1437 (“The foundation upon described in a looser sense as a unit of criminal conduct. See which the admissibility of state-seized evidence in a federal Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 trial originally rested—that unreasonable state searches did L.Ed. 306 (1932). Perhaps believing that two revolutionary not violate the Federal Constitution—thus disappeared [with assaults in the same case would be too much, Gamble has incorporation]”). not asked us to overrule Blockburger along with the dual- sovereignty rule. [10] By contrast, the premises of the dual-sovereignty doctrine have survived incorporation intact. Incorporation meant that the States were now required to abide by this * * * Court's interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty The judgment of the Court of Appeals for the Eleventh Circuit doctrine, and there is no logical reason why incorporation is affirmed. should change it. After all, the doctrine rests on the fact that only same-sovereign successive prosecutions are It is so ordered.

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permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always “tempting for Justice THOMAS, concurring. judges to confuse our own preferences with the requirements I agree that the historical record does not bear out my of the law,” Obergefell v. Hodges, 576 U.S. ––––, ––––, 135 initial skepticism of the dual-sovereignty doctrine. See Puerto S.Ct. 2584, 2612, 192 L.Ed.2d 609 (2015) (ROBERTS, C.J., Rico v. Sánchez Valle, 579 U.S. ––––, 136 S.Ct. 1863, 195 dissenting), and the Court's stare decisis doctrine exacerbates L.Ed.2d 179 (2016) (GINSBURG, J., joined by THOMAS, that temptation by giving the veneer of respectability to our J. concurring). The founding generation foresaw very limited continued application of demonstrably incorrect precedents. potential for overlapping criminal prosecutions by the States By applying demonstrably erroneous precedent instead of the and the Federal Government. 1 The Founders therefore had relevant law's text—as the Court is particularly prone to do no reason to address the double jeopardy question that when expanding federal power or crafting new individual the Court resolves today. Given their understanding of rights—the Court exercises “force” and “will,” two attributes Congress' limited criminal jurisdiction and the absence of an the People did not give it. The Federalist No. 78, p. 465 (C. analogous dual-sovereign system in England, it is difficult to Rossiter ed. 1961) (capitalization omitted). conclude that the People who ratified the Fifth Amendment understood it to prohibit prosecution by a State and the We should restore our stare decisis jurisprudence to ensure Federal Government for the same offense. And, of course, we that we exercise “mer[e] judgment,” ibid., which can be are not entitled to interpret the Constitution to align it with our achieved through adherence to the correct, original meaning personal sensibilities about “ ‘unjust’ ” *1981 prosecutions. of the laws we are charged with applying. In my view, Post, at 1992 (GINSBURG, J., dissenting); see Currier v. anything less invites arbitrariness into judging. 2 Virginia, 585 U.S. ––––, ––––, 138 S.Ct. 2144, 2156, 201 L.Ed.2d 650 (2018) (plurality opinion) (“While the growing 2 My focus in this opinion is on this Court's adherence to number of criminal offenses in our statute books may be cause its own precedents. I make no claim about any obligation for concern, no one should expect (or want) judges to revise of “inferior” federal courts, U.S. Const., Art. III, § 1, or the Constitution to address every social problem they happen state courts to follow Supreme Court precedent. to perceive” (citation omitted)).

1 As the Court suggests, Congress is responsible for the I proliferation of duplicative prosecutions for the same offenses by the States and the Federal Government. The Court currently views stare decisis as a “ ‘principle of Ante, at 1978. By legislating beyond its limited powers, policy’ ” that balances several factors to decide whether the Congress has taken from the People authority that scales tip in favor of overruling precedent. Citizens United they never gave. U.S. Const., Art. I, § 8; The v. Federal Election Comm'n, 558 U.S. 310, 363, 130 S.Ct. Federalist No. 22, p. 152 (C. Rossiter ed. 1961) (“all 876, 175 L.Ed.2d 753 (2010) (quoting Helvering v. Hallock, legitimate authority” derives from “the consent of the 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940)). people” (capitalization omitted)). And the Court has been Among these factors are the “workability” of the standard, complicit by blessing this questionable expansion of the “the antiquity of the precedent, the reliance interests at stake, Commerce Clause. See, e.g., Gonzales v. Raich, 545 and of course whether the decision was well reasoned.” U.S. 1, 57–74, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) Montejo v. Louisiana, 556 U.S. 778, 792–793, 129 S.Ct. 2079, (THOMAS, J., dissenting). Indeed, it seems possible that 173 L.Ed.2d 955 (2009). The influence of this last factor much of Title 18, among other parts of the U.S. Code, tends to ebb and flow with the Court's desire to achieve a is premised on the Court's incorrect interpretation of the particular end, and the Court may cite additional, ad hoc Commerce Clause and is thus an incursion into the States' general criminal jurisdiction and an imposition on the factors to reinforce the result it chooses. But the shared People's liberty. theme is the need for a “special reason over and above the belief that a prior case was wrongly decided” to overrule a I write separately to address the proper role of the doctrine of precedent. Planned Parenthood of Southeastern Pa. v. Casey, stare decisis. In my view, the Court's typical formulation of 505 U.S. 833, 864, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). the stare decisis standard does not comport with our judicial The Court has advanced this view of stare decisis on the duty under Article III because it elevates demonstrably ground that “it promotes the evenhanded, predictable, and erroneous decisions—meaning decisions outside the realm of

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000124 17 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... consistent development of legal principles” and “contributes to settle (differences, disputes).” Nelson, Stare Decisis and to the actual and perceived integrity of the judicial process.” Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 13, and Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 n. 35 (2001) (Nelson) (quoting 8 Oxford English Dictionary L.Ed.2d 720 (1991). 1012 (2d ed. 1991); (internal quotation marks omitted)). Therefore, judicial discretion is not the power to “alter” the This approach to stare decisis might have made sense in law; it is the duty to correctly “expound” it. Letter from J. a common-law legal system in which courts systematically Madison to N. Trist (Dec. 1831), in 9 The Writings of James developed *1982 the law through judicial decisions apart Madison 477 (G. Hunt ed. 1910) (Writings of Madison). from written law. But our federal system is different. The Constitution tasks the political branches—not the Judiciary —with systematically developing the laws that govern our B society. The Court's role, by contrast, is to exercise the “judicial Power,” faithfully interpreting the Constitution and This understanding of the judicial power had long the laws enacted by those branches. Art. III, § 1. been accepted at the time of the founding. But the federalist structure of the constitutional plan had significant implications for the exercise of that power by the newly A created Federal Judiciary. Whereas the common-law courts of England discerned and defined many legal principles in A proper understanding of stare decisis in our constitutional the first instance, the Constitution charged federal courts structure requires a proper understanding of the nature of the primarily with applying a limited body of written laws “judicial Power” vested in the federal courts. That “Power” is articulating those legal principles. This shift profoundly —as Chief Justice Marshall put it—the power “to say what the affects the application of stare decisis today. law is” in the context of a particular “case” or “controversy” before the court. Marbury v. Madison, 1 Cranch 137, 177, Stare decisis has its pedigree in the unwritten common 2 L.Ed. 60 (1803); Art. III, § 2. Phrased differently, the law of England. As Blackstone explained, the common law “judicial Power” “is fundamentally the power to decide cases included “[e]stablished customs” and “[e]stablished rules in accordance with law.” Lawson, The Constitutional Case and maxims” that were discerned and articulated by judges. Against Precedent, 17 Harv. J. L. & Pub. Pol'y 23, 26 (1994) 1 W. Blackstone, Commentaries on the Laws of England (Lawson). It refers to the duty to exercise “judicial discretion” 68–69 (1765) (Blackstone). In the common-law system, as distinct from “arbitrary discretion.” The Federalist No. 78, stare decisis played *1983 an important role because at 468, 471. “judicial decisions [were] the principal and most authoritative evidence, that [could] be given, of the existence of such a That means two things, the first prohibitory and the second custom as shall form a part of the common law.” Id., at obligatory. First, the Judiciary lacks “force” (the power to 69. Accordingly, “precedents and rules must be followed, execute the law) and “will” (the power to legislate). Id., unless flatly absurd or unjust,” because a judge must issue at 465 (capitalization omitted). Those powers are vested in judgments “according to the known laws and customs of the the President and Congress, respectively. “Judicial power is land” and not “according to his private sentiments” or “own never exercised for the purpose of giving effect to the will private judgment.” Id., at 69–70. In other words, judges were of the Judge; always for the purpose of giving effect to the expected to adhere to precedents because they embodied the will of the Legislature; or, in other words, to the will of the very law the judges were bound to apply. law.” Osborn v. Bank of United States, 9 Wheat. 738, 866, 6 L.Ed. 204 (1824) (Marshall, C.J.). The Judiciary thus may not “[C]ommon law doctrines, as articulated by judges, were seen “substitute [its] own pleasure to the constitutional intentions as principles that had been discovered rather than new laws of the legislature.” The Federalist No. 78, at 468–469. that were being made.” 3–4 G. White, The Marshall Court and Cultural Change, 1815–35, History of the Supreme Court Second, “judicial discretion” requires the “liquidat[ion]” or of the United States 129 (1988). 3 “It was the application “ascertain[ment]” of the meaning of the law. Id., at 467–468; of the dictates of natural justice, and of cultivated reason, see id., No. 37. At the time of the founding, “to liquidate” to particular cases.” 1 J. Kent, Commentaries on American meant “to make clear or plain”; “to render unambiguous; Law 439 (1826) (Kent); see id., at 439–440 (the common

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000125 18 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... law is “ ‘not the product of the wisdom of some one man, ascertain what reason or custom required; that it was possible or society of men, in any one age; but of the wisdom, for courts to err in doing so; and that it was the Judiciary's counsel, experience, and observation, of many ages of wise responsibility to “examin[e] without fear, and revis[e] without and observing men’ ”). The common law therefore rested reluctance,” any “hasty and crude decisions” rather than on “unarticulated social processes to mobilize and coordinate leaving “the character of [the] law impaired, and the beauty knowledge” gained primarily through “the social experience and harmony of the system destroyed by the perpetuity of of the many,” rather than the “specifically articulated reason error.” 1 Kent 444. of the few.” T. Sowell, A Conflict of Visions: Ideological Origins of Political Struggles 49, 42 (1987). In other words, Federal courts today look to different sources of law when the common law was based in the collective, systematic exercising the judicial power than did the common-law courts development of the law through reason. See id., at 49–55. of England. The Court has long held that “[t]here is no federal general common law.” Erie R. Co. v. Tompkins, 304 3 Our founding documents similarly rest on the U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Instead, premise that certain fundamental principles are both the federal courts primarily interpret and apply three bodies knowable and objectively true. See, e.g., Declaration of of federal positive law—the Constitution; federal statutes, Independence (“We hold these truths to be self-evident, rules, and regulations; and treaties. 4 That removes most (if that all men are created equal, that they are endowed by not all) of the force that stare decisis held in the English their Creator with certain unalienable Rights, that among common-law system, where judicial precedents were among these are Life, Liberty, and the pursuit of Happiness”). the only documents identifying the governing “customs” or Importantly, however, the common law did not view “rules and maxims.” Blackstone 68. We operate in a system of precedent as unyielding when it was “most evidently contrary written law in which courts need not—and generally cannot to reason” or “divine law.” Blackstone 69–70. The founding —articulate the law in the first instance. See U.S. Const., Art. generation recognized that a “judge may mistake the law.” I, § 1 (vesting “[a]ll legislative Powers” in Congress); Art. 1, Id., at 71; see also 1 Kent 444 (“Even a series of decisions § 7 (describing the bicameralism and presentment process). are not always conclusive evidence of what is law”). And The Constitution, federal statutes, and treaties are the law, according to Blackstone, judges should disregard precedent and the systematic development of the law is accomplished that articulates a rule incorrectly when necessary “to vindicate democratically. Our judicial task is modest: We interpret and the old [rule] from misrepresentation.” Blackstone 70; see apply written law to the facts of particular cases. also 1 Kent 443 (“If ... any solemnly adjudged case can be shown to be founded in error, it is no doubt the right 4 There are certain exceptions to this general rule, and the duty of the judges who have a similar case before including areas of law in which federal common law has them, to correct the error”). He went further: When a “former historically been understood to govern (e.g., admiralty) decision is manifestly absurd or unjust” or fails to conform and well-established judicial doctrines that are applied in to reason, it is not simply “bad law,” but “not law” at all. the federal courts (e.g., issue preclusion). Additionally, Blackstone 70 (emphasis). This view—that demonstrably federal courts apply state law where it governs. erroneous “blunders” of prior courts should be corrected— Underlying this legal system is the key premise that words, was accepted by state courts throughout the 19th century. See, including written laws, are capable of objective, ascertainable e.g., McDowell v. Oyer, 21 Pa. 417, 423 (1853); Guild v. meaning. As I have previously explained, “[m]y vision of the Eager, 17 Mass. 615, 622 (1822). process of judging is unabashedly based on the proposition that there are right and wrong answers to legal questions.” This view of precedent implies that even common-law judges THOMAS, Judging, 45 U. Kan. L. Rev. 1, 5 (1996). did not act as legislators, inserting their own preferences Accordingly, judicial decisions may incorrectly interpret the into the law as it developed. Instead, consistent with the law, and when they do, subsequent courts must confront the nature of the judicial power, common-law judges were tasked question when to depart from them. with identifying and applying objective principles of law— discerned from natural reason, custom, and other external sources—to particular cases. See Nelson 23–27. Thus, the founding generation understood that an important function C of the Judiciary in a *1984 common-law system was to

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Given that the primary role of federal courts today is to Lawson, 29–30. This status necessarily limits “the power interpret legal texts with ascertainable meanings, precedent of a court to give legal effect to prior judicial decisions” plays a different role in our exercise of the “judicial Power” that articulate demonstrably erroneous interpretations of than it did at common law. In my view, if the Court encounters the Constitution because those prior decisions cannot take a decision that is demonstrably erroneous—i.e., one that is precedence over the Constitution itself. Ibid. Put differently, not a permissible interpretation of the text—the Court should because the Constitution is supreme over other sources of law, correct the error, regardless of whether other factors support it requires us to privilege its text over our own precedents overruling the precedent. Federal courts may (but need when the two are in conflict. I am aware of no legitimate not) adhere to an incorrect decision as precedent, but only reason why a court may privilege a demonstrably erroneous when traditional tools of legal interpretation show that the interpretation of the Constitution over the Constitution earlier decision adopted a textually permissible interpretation itself. 5 of the law. A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both 5 Congress and the Executive likewise must independently disregards the supremacy of the Constitution and perpetuates evaluate the constitutionality of their actions; they take a usurpation of the legislative power. an oath to uphold the Constitution, not to blindly follow judicial precedent. In the context of a judicial case or controversy, however, their determinations do not bind 1 the Judiciary in performing its constitutionally assigned role. See, e.g., Zivotofsky v. Clinton, 566 U.S. 189, 197, When faced with a demonstrably erroneous precedent, my 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012) (noting that rule is simple: We should not follow it. This view of stare there is “no exclusive commitment to the Executive decisis follows directly from the Constitution's supremacy of the power to determine the constitutionality of a statute”); INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. over other sources of law—including our own precedents. 2764, 77 L.Ed.2d 317 (1983) (Congress' and President's That *1985 the Constitution outranks other sources of law endorsement of “legislative veto” “sharpened rather than is inherent in its nature. See A. Amar, America's Constitution blunted” Court's judicial review). Of course, consistent 5 (2005) (explaining that the Constitution is a constitutive with the nature of the “judicial Power,” the federal document); Kesavan, The Three Tiers of Federal Law, 100 courts' judgments bind all parties to the case, including NW.U. L. Rev. 1479, 1499, n. 99 (2006) (arguing that “[i]t is Government officials and agencies. unnecessary for the Constitution to specify that it is superior The same principle applies when interpreting statutes and to other law because it is higher law made by We the People— other sources of law: If a prior decision demonstrably erred and the only such law”). The Constitution's supremacy is also in interpreting such a law, federal judges should exercise the reflected in its requirement that all judicial officers, executive judicial power—not perpetuate a usurpation of the legislative officers, Congressmen, and state legislators take an oath to power—and correct the error. A contrary rule would permit “support this Constitution.” Art. VI, cl. 3; see also Art. II, § 1, judges to “substitute their own pleasure” for the law. The cl. 8 (requiring the President to “solemnly swear (or affirm)” Federalist No. 78, at 468; see id., at 466 (“ ‘[T]here is no to “preserve, protect and defend the Constitution of the liberty if the power of judging be not separated from the United States”). Notably, the Constitution does not mandate legislative and executive powers’ ”). that judicial officers swear to uphold judicial precedents. And the Court has long recognized the supremacy of the In sum, my view of stare decisis requires adherence to Constitution with respect to executive action and “legislative decisions made by the People—that is, to the original act[s] repugnant to” it. Marbury, 1 Cranch at 177; Youngstown understanding of the relevant legal text—which may not Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–589, 72 align with decisions made by the Court. Accord, Marshall S.Ct. 863, 96 L.Ed. 1153 (1952); see also The Federalist v. Baltimore & Ohio R. Co., 16 How. 314, 343–344, No. 78, at 467 (“No legislative act, therefore, contrary to the 14 L.Ed. 953 (1854) (Daniel, J., dissenting) (“Wherever Constitution, can be valid”). the Constitution commands, discretion terminates” because continued *1986 adherence to “palpable error” is a The same goes for judicial precedent. The “judicial Power” “violation of duty, an usurpation”); Commonwealth v. Posey, must be understood in light of “the Constitution's status as 8 Va. 109, 116 (1787) (opinion of Tazewell, J.) (“[A]lthough I the supreme legal document” over “lesser sources of law.” venerate precedents, I venerate the written law more”). Thus,

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000127 20 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... no “ ‘special justification’ ” is needed for a federal court abandoned, even if the precedent might fall within the range to depart from its own, demonstrably erroneous precedent. of permissible interpretations. But nothing in the Constitution Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, requires courts to take that step. 266, 134 S.Ct. 2398, 189 L.Ed.2d 339 (2014); see Nelson 62. Considerations beyond the correct legal meaning, including Put another way, there is room for honest disagreement, even reliance, workability, and whether a precedent “has become as we endeavor to find the correct answer. Compare McIntyre well embedded in national culture,” S. BREYER, Making our v. Ohio Elections Comm’n, 514 U.S. 334, 358–371, 115 S.Ct. Democracy Work: A Judge's View 152 (2010), are inapposite. 1511, 131 L.Ed.2d 426 (1995) ( ) (THOMAS, J., concurring In our constitutional structure, our role of upholding the law's in judgment) (concluding that the “historical evidence from original meaning is reason enough to correct course. 6 the framing” supports the view that the First Amendment permitted anonymous speech), with id., at 371–385, 115 S.Ct. 1511 (Scalia, J., dissenting) (concluding that the First 6 I am not suggesting that the Court must independently Amendment does not protect anonymous speech based on assure itself that each precedent relied on in every a century of practice in the States). Reasonable jurists can opinion is correct as a matter of original understanding. We may, consistent with our constitutional duty and apply traditional tools of construction and arrive at different the Judiciary's historical practice, proceed on the interpretations of legal texts. understanding that our predecessors properly discharged their constitutional role until we have reason to think *1987 “[L]iquidating” indeterminacies in written laws is far otherwise—as, for example, when a party raises the issue removed from expanding or altering them. See Writings of or a previous opinion persuasively critiques the disputed Madison 477 (explaining that judicial decisions cannot “alter” precedent. the Constitution, only “expound” it). The original meaning of legal texts “usually ... is easy to discern and simple to apply.” A. Scalia, Common Law Courts in a Civil-Law System, in 2 A Matter of Interpretation: Federal Courts and the Law 45 Although precedent does not supersede the original meaning (A. Gutmann ed. 1997). And even in difficult cases, that the of a legal text, it may remain relevant when it is not original meaning is not obvious at first blush does not excuse demonstrably erroneous. As discussed, the “judicial Power” the Court from diligently pursuing that meaning. Stopping requires the Court to clarify and settle—or, as Madison the interpretive inquiry short—or allowing personal views to and Hamilton put it, to “liquidate”—the meaning of written color it—permits courts to substitute their own preferences laws. The Federalist No. 78, at 468 (“[I]t is the province of over the text. Although the law may be, on rare occasion, the courts to liquidate and fix [the] meaning and operation truly ambiguous—meaning susceptible to multiple, equally [of contradictory laws]”); The Federalist No. 37, at 229 correct legal meanings—the law never “runs out” in the sense (explaining that the indeterminacy of laws requires courts that a Court may adopt an interpretation beyond the bounds 7 to “liquidat[e] and ascertai[n]” their meaning “by a series of permissible construction. In that regard, a legal text is of particular discussions and adjudications”). This need to not capable of multiple permissible interpretations merely liquidate arises from the inability of human language to be because discerning its original meaning “requires a taxing fully unequivocal in every context. Written laws “have a inquiry.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, range of indeterminacy,” and reasonable people may therefore 707, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991) (Scalia, J., arrive at different conclusions about the original meaning of a dissenting). legal text after employing all relevant tools of interpretation. See Nelson 11, 14. It is within that range of permissible 7 Indeed, if a statute contained no objective meaning, it interpretations that precedent is relevant. If, for example, the might constitute an improper delegation of legislative meaning of a statute has been “liquidated” in a way that power to the Judicial Branch, among other problems. is not demonstrably erroneous (i.e., not an impermissible See Touby v. United States, 500 U.S. 160, 165, 111 interpretation of the text), the judicial policy of stare decisis S.Ct. 1752, 114 L.Ed.2d 219 (1991) (discussing the permits courts to constitutionally adhere to that interpretation, nondelegation doctrine). even if a later court might have ruled another way as a This case is a good example. The historical record presents matter of first impression. Of course, a subsequent court may knotty issues about the original meaning of the Fifth nonetheless conclude that an incorrect precedent should be Amendment, and Justice GORSUCH does an admirable job

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000128 21 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... arguing against our longstanding interpretation of the Double constitutional duty. Whatever benefits may be seen to inhere Jeopardy Clause. Although Justice GORSUCH identifies in that approach—e.g., “stability” in the law, preservation of support for his view in several postratification treatises, see reliance interests, or judicial “humility,” Tr. of Oral Arg. 20, post, at 2002 – 2004 (dissenting opinion), I do not find these 41–42—they cannot overcome that fundamental flaw. treatises conclusive without a stronger showing that they reflected the understanding of the Fifth Amendment at the In any event, these oft-cited benefits are frequently illusory. time of ratification. At that time, the common law certainly The Court's multifactor balancing test for invoking stare had not coalesced around this view, see ante, at 1968 – 1975, decisis has resulted in policy-driven, “arbitrary discretion.” and petitioner has not pointed to contemporaneous judicial The Federalist No. 78, at 471. The inquiry attempts to quantify opinions or other evidence establishing that his view was the unquantifiable and, by frequently sweeping in subjective widely shared. This lack of evidence, coupled with the unique factors, provides a ready means of justifying whatever result two-sovereign federalist system created by our Constitution, five Members of the Court seek to achieve. See Holder v. Hall, leaves petitioner to rely on a general argument about “liberty.” 512 U.S. 874, 943–944, 114 S.Ct. 2581, 129 L.Ed.2d 687 Ultimately, I am not persuaded that our precedent is incorrect (1994) (THOMAS, J., concurring in judgment) (describing a “ as an original matter, much less demonstrably erroneous. ‘totality of circumstances’ ” test as “an empty incantation—a mere conjurer's trick”); Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (acknowledging that stare decisis is “ ‘a principle of policy and not a mechanical 3 formula’ ”); see also Casey, 505 U.S. at 854–856, 112 S.Ct. Although this case involves a constitutional provision, I 2791 (invoking the “kind of reliance that would lend a special would apply the same stare decisis principles to matters hardship to the consequences of overruling and add inequity of statutory interpretation. I am not aware of any legal (as to the cost of repudiation”). These are not legal questions with opposed to practical) basis for applying a heightened version right and wrong answers; they are policy choices. See, e.g., of stare decisis to statutory-interpretation decisions. Statutes A. Goldberg, Equal Justice: The Warren Era of the Supreme are easier to amend than the Constitution, but our judicial duty Court 96 (1971) (“[T]his concept of stare decisis both justifies is to apply the law to the facts of the case, regardless of how the overruling involved in the expansion of human liberties easy it is for the law to change. Cf. Clark v. Martinez, 543 U.S. during the Warren years and counsels against the future 371, 402, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (THOMAS, overruling of the Warren Court libertarian decisions”). J., dissenting) (explaining that “the realities of the legislative process” will “often preclude readopting the original meaning Members of this Court have lamented the supposed of a statute that we have upset”). Moreover, to the extent the “uncertainty” created when the Court overrules its precedent. Court has justified statutory stare decisis based on legislative See Franchise Tax Bd. of Cal. v. Hyatt, ––– U.S. ––––, inaction, this view is based on the “patently false premise that –––– – ––––, 139 S.Ct. 1485, 1506, ––– L.Ed.2d –––– the correctness of statutory construction is to be measured by (2019) (BREYER, J., dissenting). But see Lawrence, supra, what the current Congress desires, rather than by what the at 577, 123 S.Ct. 2472 (asserting that notoverruling precedent law as enacted meant.” *1988 Johnson v. Transportation would “caus[e] uncertainty”). As I see it, we would eliminate Agency, Santa Clara Cty., 480 U.S. 616, 671, 107 S.Ct. 1442, a significant amount of uncertainty and provide the very 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting). Finally, even stability sought if we replaced our malleable balancing test if congressional silence could be meaningfully understood with a clear, principled rule grounded in the meaning of the as acquiescence, it still falls short of the bicameralism and text. presentment required by Article I and therefore is not a “valid way for our elected representatives to express their collective The true irony of our modern stare decisis doctrine lies judgment.” Nelson 76. in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible. See, e.g., Holder, supra, at 944–945, 114 S.Ct. 2581 (opinion of THOMAS, J.) (“Stare decisis should not II bind the Court to an interpretation of the Voting Rights Act For the reasons explained above, the Court's multifactor that was based on a flawed method of statutory construction approach to stare decisis invites conflict with its from its inception” and that has created “an irreconcilable

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000129 22 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... conflict” between the Act and the Equal Protection Clause and requires “methodically carving the country into racially Justice GINSBURG, dissenting designated electoral districts”). It is no secret that stare decisis Terance Martez Gamble pleaded guilty in Alabama state has had a “ratchet-like effect,” cementing certain grievous court to both possession of a firearm by a person convicted of departures from the law into the Court's jurisprudence. “a crime of violence” and drug possession, and was sentenced Goldberg, supra, at 96. Perhaps the most egregious example to ten years' imprisonment, all but one year suspended. of this illegitimate use of stare decisis can be found in our Apparently regarding Alabama's sentence as too lenient, “substantive due process” jurisprudence. *1989 McDonald federal prosecutors pursued a parallel charge, possession of v. Chicago, 561 U.S. 742, 811, 130 S.Ct. 3020, 177 L.Ed.2d a firearm by a convicted felon, in violation of federal law. 894 (2010) (THOMAS, J., concurring in part and concurring Gamble again pleaded guilty and received nearly three more in judgment). The Court does not seriously defend the “legal years in prison. fiction” of substantive due process as consistent with the original understanding of the Due Process Clause. Ibid. And Had either the Federal Government or Alabama brought as I have explained before, “this fiction is a particularly the successive prosecutions, the second would have violated dangerous one” because it “lack[s] a guiding principle to Gamble's right not to be “twice put in jeopardy ... for the distinguish ‘fundamental’ rights that warrant protection from same offence.” U.S. Const., Amdt. 5, cl. 2. Yet the Federal nonfundamental rights that do not.” Ibid. Unfortunately, the Government was able to multiply Gamble's time in prison Court has doggedly adhered to these erroneous substantive- because of the doctrine that, for double jeopardy purposes, due-process precedents again and again, often to disastrous identical criminal laws enacted by “separate sovereigns” are ends. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 982, different “offence[s].” 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (THOMAS, J., dissenting) (“The standard set forth in the Casey plurality I dissent from the Court's adherence to that misguided has no historical or doctrinal pedigree” and “is the product doctrine. Instead of “fritter[ing] away [Gamble's] libert[y] of its authors' own philosophical views about abortion” upon a metaphysical subtlety, two sovereignties,” Grant, The with “no origins in or relationship to the Constitution”). Lanza Rule of Successive Prosecutions, 32 Colum. L. Rev. Likewise, the Court refuses to reexamine its jurisprudence 1309, 1331 (1932), I would hold that the Double Jeopardy about the Privileges or Immunities Clause, thereby relegating Clause bars “successive prosecutions [for the same offense] a “ ‘clause in the constitution’ ” “ ‘to be without effect.’ ” by parts of the whole USA.” Puerto Rico v. Sánchez Valle, McDonald, supra, at 813, 130 S.Ct. 3020 (quoting Marbury, 579 U.S. ––––, ––––, 136 S.Ct. 1863, 1877, 195 L.Ed.2d 179 1 Cranch at 174); see Timbs v. Indiana, 586 U.S. ––––, (2016) (GINSBURG, J., concurring). ––––, 139 S.Ct. 682, 691–698, 203 L.Ed.2d 11 (2019) (THOMAS, J., concurring in judgment) (criticizing the Court's incorporation doctrine through a clause that addresses procedures). No subjective balancing test can justify such a *1990 I wholesale disregard of the People's individual rights protected by the Fourteenth Amendment. A

Gamble urges that the Double Jeopardy Clause incorporates English common law. That law, he maintains, recognized a * * * foreign acquittal or conviction as a bar to retrial in England Our judicial duty to interpret the law requires adherence for the same offense. See Brief for Petitioner 11–15. The to the original meaning of the text. For that reason, we Court, in turn, strives mightily to refute Gamble's account should not invoke stare decisis to uphold precedents that of the common law. See ante, at 1967 – 1975. This case, are demonstrably erroneous. Because petitioner and the however, does not call for an inquiry into whether and when dissenting opinions have not shown that the Court's dual- an 18th-century English court would have credited a foreign sovereignty doctrine is incorrect, much less demonstrably court's judgment in a criminal case. Gamble was convicted erroneous, I concur in the majority's opinion. in both Alabama and the United States, jurisdictions that are not foreign to each other. English court decisions regarding

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000130 23 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... the respect due to a foreign nation's judgment are therefore the Federal Constitution, however, “ultimate sovereignty” inapposite. resides in the governed. Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S. ––––, ––––, 135 S.Ct. 2652, 2675, 192 L.Ed.2d 704 (2015); Martin v. Hunter's Lessee, 1 Wheat. 304, 324–325, 4 L.Ed. 97 (1816); Braun, B supra, at 26–30. Insofar as a crime offends the “peace and In United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 dignity” of a sovereign, Lanza, 260 U.S. at 382, 43 S.Ct. L.Ed. 314 (1922), this Court held that “an act denounced as 141, that “sovereign” is the people, the “original fountain of a crime by both national and state sovereignties is an offense all legitimate authority,” The Federalist No. 22, at 152 (A. against the peace and dignity of both and may be punished Hamilton); see Note, *1991 Double Prosecution by State by each.” Id., at 382, 43 S.Ct. 141. Decades later, a sharply and Federal Governments: Another Exercise in Federalism, divided Court reaffirmed this separate-sovereigns doctrine. 80 Harv. L. Rev. 1538, 1542 (1967). States may be separate, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d but their populations are part of the people composing the 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, United States. 3 L.Ed.2d 684 (1959). I would not cling to those ill-advised decisions. In our “compound republic,” the division of authority between the United States and the States was meant to operate as “a double security [for] the rights of the people.” The Federalist No. 51, at 323 (J. Madison); see Bond v. United 1 States, 564 U.S. 211, 221, 131 S.Ct. 2355, 180 L.Ed.2d 269 Justification for the separate-sovereigns doctrine centers on (2011). The separate-sovereigns doctrine, however, scarcely the word “offence”: An “offence,” the argument runs, is the shores up people's rights. Instead, it invokes federalism to violation of a sovereign's law, the United States and each State withhold liberty. See Bartkus, 359 U.S. at 155–156, 79 S.Ct. 1 are separate sovereigns, ergo successive state and federal 676 (Black, J., dissenting). prosecutions do not place a defendant in “jeopardy ... for the same offence.” Ante, at 1963, 1964 – 1965 (internal quotation 1 The Court writes that federalism “advances individual marks omitted). liberty in many ways,” but does not always do so. Ante, at 1968 (citing, for example, state prohibition of This “compact syllogism” is fatally flawed. See Braun, activities authorized by federal law). The analogy of the Praying to False Sovereigns: The Rule Permitting Successive separate-sovereigns doctrine to dual regulation is inapt. Prosecutions in the Age of Cooperative Federalism, 20 Am. The former erodes a constitutional safeguard against J. Crim. L. 1, 25 (1992). The United States and its constituent successive prosecutions, while the Constitution contains States, unlike foreign nations, are “kindred systems,” “parts no guarantee against dual regulation. of ONE WHOLE.” The Federalist No. 82, p. 493 (C. Rossiter It is the doctrine's premise that each government has—and ed. 1961) (A. Hamilton). They compose one people, bound by must be allowed to vindicate—a distinct interest in enforcing an overriding Federal Constitution. Within that “WHOLE,” its own criminal laws. That is a peculiar way to look at the Federal and State Governments should be disabled from the Double Jeopardy Clause, which by its terms safeguards accomplishing together “what neither government [could] the “person” and restrains the government. See, e.g., id., do alone—prosecute an ordinary citizen twice for the same at 155, 79 S.Ct. 676; United States v. All Assets of G.P.S. offence.” Amar & Marcus, Double Jeopardy Law After Automotive Corp., 66 F. 3d 483, 498 (CA2 1995) (Calabresi, Rodney King, 95 Colum. L. Rev. 1, 2 (1995). J., concurring). The Double Jeopardy Clause embodies a principle, “deeply ingrained” in our system of justice, The notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal “that the State with all its resources and power should system. The doctrine treats governments as sovereign, with not be allowed to make repeated attempts to convict an state power to prosecute carried over from years predating individual for an alleged offense, thereby subjecting him to the Constitution. See Heath v. Alabama, 474 U.S. 82, 89, embarrassment, expense and ordeal and compelling him to 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (citing Lanza, 260 live in a continuing state of anxiety and insecurity, as well U.S. at 382, 43 S.Ct. 141). In the system established by as enhancing the possibility that even though innocent he

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may be found guilty.” Green v. United States, 355 U.S. 184, amendment failed; the Court has attributed to the Clause the 187–188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). very meaning the First Congress refrained from adopting. 2

“Looked at from the standpoint of the individual who is 2 The Court sees this history as poor evidence of being prosecuted,” the liberty-denying potential of successive congressional intent. See ante, at 1965. On another prosecutions, when Federal and State Governments prosecute day, the Court looked to the First Congress' rejection in tandem, is the same as it is when either prosecutes twice. of proposed amendments as instructive. See Cook v. Bartkus, 359 U.S. at 155, 79 S.Ct. 676 (Black, J., dissenting). Gralike, 531 U.S. 510, 521, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001). Moreover, a “compelling” principle of statutory interpretation is “the proposition that Congress does not intend sub silentio to enact statutory language 2 that it has earlier discarded in favor of other language.” I turn, next, to further justifications the Court has supplied for INS v. Cardoza-Fonseca, 480 U.S. 421, 442–443, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (internal quotation the separate-sovereigns doctrine. None should survive close marks omitted). inspection. Second, early American courts regarded with disfavor the prospect of successive prosecutions by the Federal and State Governments. In Houston v. Moore, 5 Wheat. 1, 5 a L.Ed. 19 (1820), Justice Washington expressed concern that One rationale emphasizes that the Double Jeopardy Clause such prosecutions would be “very much like oppression, originally restrained only the Federal Government and did if not worse”; he noted that an acquittal or conviction by not bar successive state prosecutions. Id., at 124, 79 S.Ct. one sovereign “might be pleaded in bar of the prosecution 676; Lanza, 260 U.S. at 382, 43 S.Ct. 141; Fox v. Ohio, 5 before the other.” Id., at 23, 31. The Court today follows How. 410, 434–435, 12 L.Ed. 213 (1847). Incorporation of Bartkus in distinguishing Justice Washington's opinion as the Clause as a restraint on action by the States, effected in addressing only the “strange” situation in which a State Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d has prosecuted an offense “against the United States.” Ante, 707 (1969), has rendered this rationale obsolete. at 1977; see Bartkus, 359 U.S. at 130, 79 S.Ct. 676. The distinction is thin, given the encompassing language in Justice Washington's opinion. Justice Story's dissent, moreover, declared successive prosecutions for the same b offense contrary to “the principles of the common law, and the genius of our free government.” Houston, 5 Wheat. at 72. Another justification is precedent. In adopting and reaffirming the separate-sovereigns doctrine, the Court relied Most of the early state decisions cited by the parties regarded on dicta from 19th-century opinions. See Abbate, 359 U.S. successive federal-state prosecutions as unacceptable. See at 190–193, 79 S.Ct. 666; Bartkus, 359 U.S. at 129–132, Bartkus, 359 U.S. at 158–159, 79 S.Ct. 676 (Black, J., 79 S.Ct. 676; Lanza, 260 U.S. at 382–384, 43 S.Ct. 141. dissenting). Only one court roundly endorsed a separate- The persuasive force of those opinions is diminished by their sovereigns theory. Hendrick v. Commonwealth, 32 Va. 707, dubious reasoning. See supra, at 1990 – 1991. While drawing 713 (1834). The Court reads the state-court opinions as upon dicta from prior opinions, the Court gave *1992 short “distin[guishing] between believing successive prosecutions shrift to contrary authority. See Braun, supra, at 20–23. by separate sovereigns unjust and holding them unlawful.” Ante, at 1976. I would not read the Double Jeopardy Clause First, the Framers of the Bill of Rights voted down to tolerate “unjust” prosecutions and believe early American an amendment that would have permitted the Federal courts would have questioned the Court's distinction. See Government to reprosecute a defendant initially tried by State v. Brown, 2 N. C. 100, 101 (1794) (allowing successive a State. 1 Annals of Cong. 753 (1789); J. Sigler, Double prosecutions would be “against natural justice, and therefore Jeopardy: The Development of a Legal and Social Policy 30– I cannot believe it to be law”). 31 (1969). But cf. ante, at 1965 – 1966. Nevermind that this

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stressed that originally, the Clause restrained only federal, not state, action. E.g., Bartkus, 359 U.S. at 127, 79 S.Ct. 676; c Lanza, 260 U.S. at 382, 43 S.Ct. 141; cf. Abbate, 359 U.S. at Finally, the Court has reasoned that the separate-sovereigns 190, 79 S.Ct. 666. doctrine is necessary to prevent either the Federal Government or a State from encroaching on the other's law Before incorporation, the separate-sovereigns doctrine had a enforcement prerogatives. Without this doctrine, the Court certain logic: Without a carve-out for successive prosecutions has observed, the Federal Government, by prosecuting first, by separate sovereigns, the Double Jeopardy Clause would could bar a State from pursuing more serious charges for have barred the Federal Government from prosecuting a the same offense, Bartkus, 359 U.S. at 137, 79 S.Ct. 676; defendant previously tried by a State, but would not have and conversely, a State, by prosecuting first, could effectively prevented a State from prosecuting a defendant previously nullify federal law, Abbate, 359 U.S. at 195, 79 S.Ct. 666. tried by the Federal Government. Incorporation changed this. This concern envisions federal and state prosecutors working Operative against the States since 1969, when the Court at cross purposes, but cooperation between authorities is the decided Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 norm. See Bartkus, 359 U.S. at 123, 79 S.Ct. 676. And L.Ed.2d 707, the double jeopardy proscription now applies to when federal-state tension exists, successive prosecutions for the Federal Government and the States alike. The remaining the federal and *1993 state offenses may escape double- office of the separate-sovereigns doctrine, then, is to enable jeopardy blockage under the test prescribed in Blockburger federal and state prosecutors, proceeding one after the other, v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 to expose defendants to double jeopardy. (1932). Offenses are distinct, Blockburger held, if “each ... requires proof of a fact which the other does not.” Id., at The separate-sovereigns doctrine's persistence contrasts with 304, 52 S.Ct. 180; see Amar, 95 Colum. L. Rev., at 45–46 the fate of analogous dual-sovereignty doctrines following (violation of federal civil rights law and state assault law are application of the rights at issue to the States. Prior to different offenses). incorporation of the Fourth Amendment as a restraint on state action, federal prosecutors were free to use evidence obtained illegally by state or local officers, then served up to federal officers on a “silver platter.” See Elkins v. United States, 364 II U.S. 206, 208–214, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 The separate-sovereigns doctrine, I acknowledge, has been L.Ed. 652 (1914). Once the Fourth Amendment applied to embraced repeatedly by the Court. But “[s]tare decisis is not the States, abandonment of this “silver platter doctrine” was an inexorable command.” Payne v. Tennessee, 501 U.S. 808, impelled by “principles of logic” and the reality that, from 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Our adherence the perspective of the victim of an unreasonable search and to precedent is weakest in cases “concerning procedural seizure, it mattered not at all “whether his constitutional right rules that implicate fundamental constitutional protections.” ha[d] been invaded by a federal agent or by a state officer.” Alleyne v. United States, 570 U.S. 99, 116, n. 5, 133 S.Ct. Elkins, 364 U.S. at 208, 215, 80 S.Ct. 1437. As observed by 2151, 186 L.Ed.2d 314 (2013). Gamble's case fits that bill. I Justice Harlan, Elkins' abandonment of a separate-sovereigns would lay the “separate-sovereigns” rationale to rest for the exception to the exclusionary rule was at odds aforesaid reasons and those stated below. *1994 with retention of the separate-sovereigns doctrine for double jeopardy purposes in Abbate and Bartkus. See 364 U.S. at 252, 80 S.Ct. 1437. A Similarly, before incorporation of the Fifth Amendment First, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 privilege against self-incrimination, the Court held that the L.Ed.2d 707, which rendered the double jeopardy safeguard privilege did not prevent state authorities from compelling applicable to the States, left the separate-sovereigns doctrine a defendant to provide testimony that could incriminate the sort of “legal last-man-standing for which we sometimes him or her in another jurisdiction. Knapp v. Schweitzer, depart from stare decisis.” Kimble v. Marvel Entertainment, 357 U.S. 371, 375–381, 78 S.Ct. 1302, 2 L.Ed.2d 1393 LLC, 576 U.S. ––––, ––––, 135 S.Ct. 2401, 2411, 192 L.Ed.2d (1958). After application of the self-incrimination privilege 463 (2015). In adopting and cleaving to the doctrine, the Court

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000133 26 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... to the States, the Court concluded that its prior position indicate that, in practice, successive prosecutions are not was incompatible with the “policies and purposes” of the limited to exceptional circumstances. privilege. Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U.S. 52, 55, 77, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). No 3 Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d longer, the Court held, could a witness “ be whipsawed into 684 (1959), left open the prospect that the double incriminating himself under both state and federal law even jeopardy ban might block a successive state prosecution though the constitutional privilege against self-incrimination that was merely “a sham and a cover for a federal is applicable to each.” Id., at 55, 84 S.Ct. 1594 (internal prosecution.” Id., at 123–124, 79 S.Ct. 676. The Courts quotation marks omitted; emphasis added). of Appeals have read this potential exception narrowly. See, e.g., United States v. Figueroa-Soto, 938 F. 2d 1015, The Court regards incorporation as immaterial because 1019 (CA9 1991). application of the Double Jeopardy Clause to the States did not affect comprehension of the word “offence” to mean the *1995 C violation of one sovereign's law. Ante, at 1978. But the Court attributed a separate-sovereigns meaning to “offence” at least Against all this, there is little to be said for keeping in part because the Double Jeopardy Clause did not apply to the separate-sovereigns doctrine. Gamble's case “do[es] not the States. See supra, at 1991. Incorporation of the Clause implicate the reliance interests of private parties.” Alleyne, should prompt the Court to consider the protection against 570 U.S. at 119, 133 S.Ct. 2151 (SOTOMAYOR, J., double jeopardy from the defendant's perspective and to ask concurring). The closest thing to a reliance interest would be why each of two governments within the United States should the interest Federal and State Governments have in avoiding be permitted to try a defendant once for the same offense when avulsive changes that could complicate ongoing prosecutions. neither could try him or her twice. As the Court correctly explains, however, overruling the separate-sovereigns doctrine would not affect large numbers of cases. See ante, at 1978 – 1979. In prosecutions based B on the same conduct, federal and state prosecutors will often charge offenses having different elements, charges that, under The expansion of federal criminal law has exacerbated the Blockburger, will not trigger double jeopardy protection. problems created by the separate-sovereigns doctrine. Ill See Poulin, Double Jeopardy Protection From Successive effects of the doctrine might once have been tempered Prosecution: A Proposed Approach, 92 Geo. L. J. 1183, 1244– by the limited overlap between federal and state criminal 1245 (2004); Brief for Criminal Defense Experts as Amici law. All Assets of G.P.S. Automotive, 66 F. 3d at 498 Curiae 5–11. 4 (Calabresi, J., concurring). In the last half century, however, federal criminal law has been extended pervasively into 4 The Government implies there is tension between areas once left to the States. Guerra, The Myth of Dual Gamble's position and Blockburger v. United States, 284 Sovereignty: Multijurisdictional Drug Law Enforcement and U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Brief for Double Jeopardy, 73 N. C. L. Rev. 1159, 1165–1192 (1995); United States 18–20. But if courts can ascertain how laws Brief for Sen. Orrin Hatch as Amicus Curiae 8–14. This enacted by different Congresses fare under Blockburger, new “age of ‘cooperative federalism,’ [in which] the Federal they can do the same for laws enacted by Congress and a and State Governments are waging a united front against State, or by two States. But cf. Amar & Marcus, Double many types of criminal activity,” Murphy, 378 U.S. at 55– Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 56, 84 S.Ct. 1594, provides new opportunities for federal 39 (1995) (“Because different legislatures often do not and state prosecutors to “join together to take a second bite work from the same linguistic building blocks, they will at the apple,” All Assets of G.P.S. Automotive, 66 F. 3d at not use uniform language to describe an offence, even when each is indeed outlawing the same crime with the 498 (Calabresi, J., concurring). 3 This situation might be same elements.”). less troublesome if successive prosecutions occurred only in “instances of peculiar enormity, or where the public safety Notably, the Federal Government has endeavored to reduce demanded extraordinary rigor.” Fox, 5 How. at 435. The run- the incidence of “same offense” prosecutions. Under the of-the-mill felon-in-possession charges Gamble encountered Petite policy adopted by the Department of Justice, 5 the Department will pursue a federal prosecution “based on

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000134 27 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... substantially the same act(s) or transaction(s)” previously Unfortunately, the Court today endorses a colossal exception prosecuted in state court only if the first prosecution left a to this ancient rule against double jeopardy. My colleagues “substantial federal interest ... demonstrably unvindicated” say that the federal government and each State are “separate and a Department senior official authorizes the prosecution. sovereigns” entitled to try the same person for the same crime. Dept. of Justice, Justice Manual § 9–2.031(A) (rev. July So if all the might of one “sovereign” cannot succeed against 2009). the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much 5 Formally the “Dual and Successive Prosecution Policy,” the better; they can add one punishment on top of the other. the policy is popularly known by the name of the case But this “separate sovereigns exception” to the bar against in which this Court first took note of it, Petite v. United double jeopardy finds no meaningful support in the text of States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960) the Constitution, its original public meaning, structure, or (per curiam). The policy was adopted “in direct response history. Instead, the Constitution promises all Americans that to” Bartkus and Abbate v. United States, 359 U.S. 187, 79 they will never suffer double jeopardy. I would enforce that S.Ct. 666, 3 L.Ed.2d 729 (1959). Rinaldi v. United States, guarantee. 434 U.S. 22, 28, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam). At oral argument, the Government estimated that it authorizes I only “about a hundred” Petite prosecutions per year. Tr. of Oral Arg. 54. But see id., at 65–66 (referring to the “Fear and abhorrence of governmental power to try people “few hundred successive prosecutions that [the Government] twice for the same conduct is one of the oldest ideas bring[s] each year”). Some of these prosecutions will not found in western civilization.” 1 Throughout history, people implicate double jeopardy, as the Petite policy uses a same- have worried about the vast disparity of power between conduct test that is broader than the Blockburger same- governments and individuals, the capacity of the state to bring elements test. And more than half the States forbid successive charges repeatedly until it wins the result it wants, and what prosecutions for all or some offenses previously resolved little would be left of human liberty if that power remained on the merits by a federal or state court. Brief for Criminal unchecked. To address the problem, the law in ancient Athens Defense Experts as Amici Curiae 4–5, and n. 2 (collecting held that “[a] man could not be tried twice for the same statutes); Brief for State of Texas et al. as Amici Curiae 28– 2 30, and nn. 6–15 (same). In short, it is safe to predict that offense.” The Roman Republic and Empire incorporated 3 eliminating the separate-sovereigns doctrine would spark no a form of double jeopardy protection in their laws. The large disruption in practice. Old Testament and later church teachings endorsed the bar against double jeopardy too. 4 And from the earliest days of the common law, courts recognized that to “punish a man 5 * * * twice over for one offence” would be deeply unjust.

The separate-sovereigns doctrine, especially since Bartkus 1 Bartkus v. Illinois, 359 U.S. 121, 151, 79 S.Ct. 676, 3 and Abbate, has been subject to relentless criticism by L.Ed.2d 684 (1959) (Black, J., dissenting). members of the bench, bar, and academy. Nevertheless, the Court reaffirms the doctrine, thereby diminishing the 2 R. Bonner, Lawyers and Litigants in Ancient Athens 195 individual rights *1996 shielded by the Double Jeopardy (1927). Clause. Different parts of the “WHOLE” United States should 3 J. Sigler, Double Jeopardy: The Development of a Legal not be positioned to prosecute a defendant a second time and Social Policy 2–3 (1969); Digest of Justinian: Digest for the same offense. I would reverse Gamble's federal 48.2.7.2, translated in 11 S. Scott, The Civil Law 17 conviction. (1932).

4 See Bartkus, 359 U.S. at 152, n. 4, 79 S.Ct. 676 (Black, J., dissenting); Z. Brooke, The English Church and the Justice GORSUCH, dissenting. Papacy 204–205, n. 1 (1931). A free society does not allow its government to try the same individual for the same crime until it's happy with the result.

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5 1 F. Pollock & F. Maitland, The History of English Law So how does the government manage to evade the 448 (2d ed. 1898). Fifth Amendment's seemingly plain command? On the government's account, the fact that federal and state The rule against double jeopardy was firmly entrenched in authorities split up the prosecutions makes all the difference. both the American colonies and England at the time of our Though the Double Jeopardy Clause doesn't say anything 6 Revolution. And the Fifth Amendment, which prohibits about allowing “separate sovereigns” to do sequentially what placing a defendant “twice ... in jeopardy of life or limb” for neither may do separately, the government assures us the “the same offence” sought to carry the traditional common Fifth Amendment's phrase “same offence” does this work. law rule into our Constitution. 7 As Joseph Story put it, the Adopting the government's argument, the Court supplies the Constitution's *1997 prohibition against double jeopardy following syllogism: “[A]n ‘offence’ is defined by a law, and grew from a “great privilege secured by the common law” and each law is defined by a sovereign. So where there are two meant “that a party shall not be tried a second time for the sovereigns, there are two laws, and two ‘offences.’ ” Ante, at same offence, after he has once been convicted, or acquitted 1964 – 1965. of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him.” 8 But the major premise of this argument—that “where there are two laws there are ‘two offenses’ ”—is mistaken. We know that the Constitution is not so easily evaded and that 6 See, e.g., The Massachusetts Body of Liberties of 1641, 10 cl. 42, in The Colonial Laws of Massachusetts 42–43 (W. two statutes can punish the same offense. The framers Whitmore ed. 1889); 4 W. Blackstone, Commentaries understood the term “offence” to mean a “transgression.” 11 on the Laws of England 335–336 (5th ed. 1773) And they understood that the same transgression might (Blackstone, Commentaries); 2 W. Hawkins, Pleas of the be punished by two pieces of positive law: After all, Crown 368 (1762) (Hawkins). constitutional protections were not meant to be flimsy things 7 Ex parte Lange, 18 Wall. 163, 170, 21 L.Ed. 872 (1874). but to embody “principles that are permanent, uniform, See also Benton v. Maryland, 395 U.S. 784, 795–796, 89 and universal.” 12 As this Court explained long ago in S.Ct. 2056, 23 L.Ed.2d 707 (1969); F. Wharton, Criminal Blockburger v. United States, “where the same act or Law of the United States 147 (1846). transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there 8 3 J. Story, Commentaries on the Constitution of the United States § 1781, p. 659 (1833). are two offenses or only one, is whether each provision 13 Given all this, it might seem that Mr. Gamble should win this requires proof of a fact which the other does not.” So if two case handily. Alabama prosecuted him for violating a state laws demand proof of the same facts to secure a conviction, law that “prohibits a convicted felon from possessing a pistol” they constitute a single offense under our Constitution and a *1998 second trial is forbidden. And by everyone's and sentenced him to a year in prison. 9 But then the federal admission, that is exactly what we have here: The statute government, apparently displeased with the sentence, charged under which the federal government proceeded required it to Mr. Gamble under 18 U.S.C. § 922(g)(1) with being a felon in prove no facts beyond those Alabama needed to prove under possession of a firearm based on the same facts that gave rise state law to win its conviction; the two prosecutions were for to the state prosecution. Ultimately, a federal court sentenced the same offense. him to 46 months in prison and three years of supervised release. Most any ordinary speaker of English would say that 10 Mr. Gamble was tried twice for “the same offence,” precisely Whalen v. United States, 445 U.S. 684, 691–692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). what the Fifth Amendment prohibits. Tellingly, no one before us doubts that if either the federal government or Alabama 11 Dictionarium Britannicum (N. Bailey ed. 1730); see also had prosecuted Mr. Gamble twice on these facts and in this N. Webster, An American Dictionary of the English manner, it surely would have violated the Constitution. Language (1828) (defining an “offense” as including “[a]ny transgression of law, divine or human”). 9 Ex parte Taylor, 636 So. 2d 1246 (Ala. 1993); see Ala. 12 4 Blackstone, Commentaries 3. Code §§ 13A–11–70(2), 13A–11–72(a) (2015). 13 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

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That leaves the government and the Court to rest on the fact 16 30 Journals of the Continental Congress 440 (J. that distinct governmental entities, federal and state, enacted Fitzpatrick ed. 1934). these identical laws. This, we are told, is enough to transform 17 what everyone agrees would otherwise be the same offense 10 id., at 72 (W. Ford ed. 1908). into two different offenses. But where is that distinction 18 29 id., at 803 (J. Fitzpatrick ed. 1933). to be found in the Constitution's text or original public understanding? We know that the framers didn't conceive of The history of the Double Jeopardy Clause itself supplies the term “same offence” in some technical way as referring more evidence yet. The original draft prohibited “more than 19 only to the same statute. And if double jeopardy prevents one trial or one punishment for the same offence.” One one government from prosecuting a defendant multiple times representative then proposed adding the words “by any law for the same offense under the banner of separate statutory of the United States” after “same offence.” 20 That proposal labels, on what account can it make a difference when many clearly would have codified the government's sovereign- governments collectively seek to do the same thing? specific view of the Clause's operation. Yet, Congress proceeded to reject it. The government identifies no evidence suggesting that the framers understood the term “same offence” to bear 19 1 Annals of Cong. 753 (1789). such a lawyerly sovereign-specific meaning. Meanwhile, Blackstone's Commentaries explained how “Roman law,” 20 Ibid. “Athens,” “the Jewish republic,” and “English Law” *1999 Viewed from the perspective of an ordinary reader addressed the singular “offence of homicide,” and how of the Fifth Amendment, whether at the time of its adoption the Roman, Gothic, and ancient Saxon law approached or in our own time, none of this can come as a surprise. 14 the singular “offence of arson.” Other treatises of Imagine trying to explain the Court's separate sovereigns rule the period contain similar taxonomies of “offences” that to a criminal defendant, then or now. Yes, you were sentenced are not sovereign-specific. 15 Members of the Continental to state prison for being a felon in possession of a firearm. Congress, too, used the word “offence” in this same way. And don't worry—the State can't prosecute you again. But a In 1786, a congressional committee endorsed federal control federal prosecutor can send you to prison again for exactly the over import duties because otherwise “thirteen separate same thing. What's more, that federal prosecutor may work authorities” might “ordain various penalties for the same hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what offence.” 16 In 1778, the Continental Congress passed a worked and what didn't the first time around. And the federal resolution declaring that a person should not be tried in prosecutor can pursue you even if you were acquitted in the state court “for the same offense, for which he had previous 17 state case. None of that offends the Constitution's plain words thereto been tried by a Court Martial.” And in 1785, protecting a person from being placed “twice ... in jeopardy the Continental Congress considered an ordinance declaring of life or limb” for “the same offence.” Really? that a defendant could “plead a formal Acquital on a Trial” in a maritime court “for the same supposed Offences, in a similar Court in one of the other United States.” 18 In all II of these examples, early legislators—including many of the same people who would vote to add the Fifth Amendment Without meaningful support in the text of the Double to the Bill of Rights just a few years later—recognized that Jeopardy Clause, the government insists that the separate transgressions of state and federal law could constitute the sovereigns exception is at least compelled by the structure of “same offence.” our Constitution. On its view, adopted by the Court today, allowing the federal and state governments to punish the 14 4 Blackstone, Commentaries 176–187, 222. same defendant for the same conduct “honors the substantive differences between the interests that two sovereigns can 15 See, e.g., 2 J. Bishop, Commentaries on the Criminal have” in our federal system. Ante, at 1966. Law §§ 90–120 (5th ed. 1872) (discussing the singular offense of “burglary” by reference to the “common law,” English law, and the laws of multiple States). But this argument errs from the outset. The Court seems to assume that sovereignty in this country belongs to the state

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000137 30 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... and federal governments, much as it once belonged to the not hold that the two governments could work in concert King of England. But as Chief Justice Marshall explained, to abridge the people's liberty in a way that neither could “[t]he government of the Union ... is emphatically, and truly, on its own. a government of the people,” and all sovereignty “emanates *2000 From its mistaken premise, the Court continues to from them.” 21 Alexander Hamilton put the point this way: the flawed conclusion that the federal and state governments “[T]he national and State systems are to be regarded” can successively prosecute the same person for the same not as different sovereigns foreign to one another but “as offense. This turns the point of our federal experiment on its head. When the “ONE WHOLE” people of the United ONE WHOLE.” 22 Under our Constitution, the federal and States assigned different aspects of their sovereign power state governments are but two expressions of a single and to the federal and state governments, they sought not to sovereign people. multiply governmental power but to limit it. As this Court has explained, “[b]y denying any one government complete 21 McCulloch v. Maryland, 4 Wheat. 316, 404–405, 4 L.Ed. jurisdiction over all the concerns of public life, federalism 579 (1819). protects the liberty of the individual from arbitrary power.” 27 22 The Federalist No. 82, p. 494 (C. Rossiter ed. 1961). Yet today's Court invokes federalism not to protect individual This principle resonates throughout our history and law. State liberty but to threaten it, allowing two governments to courts that refused to entertain federal causes of action found achieve together an objective denied to each. The Court little sympathy when attempting the very separate sovereigns brushes this concern aside because “the powers of the Federal Government and the States often overlap,” which “often theory underlying today's decision. 23 In time, too, it became results in two layers of regulation.” Ante, at 1968. But clear that federal courts may decide state-law issues, and the Court's examples—taxation, alcohol, and marijuana— 24 state courts may decide federal questions. Even in the involve areas that the federal and state governments each may criminal context, this Court has upheld removal of some state regulate separately under the Constitution as interpreted by criminal actions to federal court. 25 And any remaining doubt this Court. That is miles away from the separate sovereigns about whether the States and the federal government are truly exception, which allows the federal and state governments separate sovereigns was ultimately “resolved by war.” 26 to accomplish together what neither may do separately consistent with the Constitution's commands. As Justice Black understood, the Court's view today “misuse[s] and 23 See Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 28 967 (1947). desecrat[es] ... the concept” of federalism. For “it is just as much an affront to ... human freedom for a man to be 24 Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833 (1876). punished twice for the same offense” by two parts of the 25 See Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 people's government “as it would be for one ... to throw him (1880). in prison twice for the offense.” 29

26 Testa, 330 U.S. at 390, 67 S.Ct. 810. The Court tries 27 to make the most of McCulloch, pointing out that Chief Bond v. United States, 564 U.S. 211, 222, 131 S.Ct. 2355, Justice Marshall distinguished between “ ‘the people 180 L.Ed.2d 269 (2011); see also New York v. United of a State’ ” and “ ‘the people of all the States.’ ” States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d Ante, at 1968. But of course our federal republic is 120 (1992); Alden v. Maine, 527 U.S. 706, 758, 119 S.Ct. composed of separate governments. My point is that 2240, 144 L.Ed.2d 636 (1999); The Federalist No. 51. the federal and state governments ultimately derive their 28 Bartkus, 359 U.S. at 155, 79 S.Ct. 676 (dissenting sovereignty from one and the same source; they are not opinion). truly “separate” in the manner of, say, the governments of England and Portugal. The American people “ ‘split the 29 Abbate v. United States, 359 U.S. 187, 203, 79 S.Ct. 666, atom of sovereignty,’ ” ante, at 1968, to set two levels of 3 L.Ed.2d 729 (1959) (same). government against each other, not to set both against the people. McCulloch is consistent with that understanding. In holding that the States could not tax the national bank, III McCulloch sought to ensure that the national and state governments remained each in its proper sphere; it did

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in England of a defendant previously tried for murder in Spain or Portugal. A

If the Constitution's text and structure do not supply 33 H. Bathurst, Theory of Evidence 39. persuasive support for the government's position, what about 34 a more thorough exploration of the common law from which Ibid. the Fifth Amendment was drawn? 35 F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius 241. By 1791 when the Fifth Amendment was adopted, an array of 36 common law authorities suggested that a prosecution in any 3 Mod. 194, 87 Eng. Rep. 124, sub nom. Beake v. Tyrrell, court, so long as the court had jurisdiction over the offense, 1 Show. K. B. 6, 89 Eng. Rep. 411, sub nom. Beake v. Tirrell, Comb. 120, 90 Eng. Rep. 379. was enough to bar future reprosecution in another court. Blackstone, for example, reported that an acquittal “before 37 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726) any court having competent jurisdiction of the offence” 38 could be pleaded “in bar of any subsequent accusation 1 Leach 134, 168 Eng. Rep. 169 (K. B. 1775). for the same crime.” 30 For support, Blackstone pointed When they envisioned the relationship between the national government and the States under the new Constitution, the to Beak v. Tyrhwhit, 31 a 1688 case in which the reporter framers sometimes referenced by way of comparison the described an acquittal in a foreign country followed by an 39 attempted second prosecution in England that the court held relationship between Wales, Scotland, and England. And impermissible. Another *2001 treatise by William Hawkins prosecutions in one of these places pretty plainly barred likewise considered it “settled” as early as 1716 “[t]hat an subsequent prosecutions for the same offense in the others. Acquittal in any Court whatsoever, which has a Jurisdiction So, for example, treatises explained that “an Acquittal of of the Cause, is as good a Bar of any subsequent Prosecution Murder at a Grand Sessions in Wales, may be pleaded to an Indictment for the same Murder in England. For the Rule is, for the same Crime.” 32 That a Man's Life shall not be brought into Danger for the same Offence more than once.” 40 Indeed, when an English 30 4 Blackstone, Commentaries 335, and n. j. county indicted a defendant “for a murder committed ... in 31 3 Mod. 194, 87 Eng. Rep. 124 (K. B.). Wales,” it was barred from proceeding when the court learned that the defendant had already been tried and acquitted “of the 32 2 Hawkins § 10, at 372 (emphasis added). same offence” in Wales. 41 What these authorities suggest many more confirm. Henry Bathurst's 1761 treatise on evidence taught that “a final 39 See, e.g. Determination in a Court having competent Jurisdiction is , A. Amar, America's Constitution: A Biography 45 (2005); The Federalist No. 5, pp. 50–51; The 33 conclusive in all Courts of concurrent Jurisdiction.” Nor Federalist No. 17; Jay, An Address to the People of the was this merely a rule about the competency of evidence, State of New York, in Pamphlets on the Constitution of as the next sentence reveals: “If A. having killed a Person the United States 84 (P. Ford ed. 1788). in Spain was there prosecuted, tried, and acquitted, and 40 afterwards was indicted here [in England], he might plead the 2 Hawkins § 10, at 372. 34 Acquittal in Spain in Bar.” Francis Buller's 1772 treatise 41 King v. THOMAS, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. repeated the same rule, articulating it the same way. 35 And to 1664). illustrate their point, both treatises cited the 1678 English case Against this uniform body of common law weighs Gage v. of King v. Hutchinson. Although no surviving written report Bulkeley—a civil, not criminal, case from 1744 that suggested of Hutchinson remains, several early common law cases— Hutchinson had held only that the English courts lacked including Beak v. Thyrwhit, 36 Burrows v. Jemino, 37 and jurisdiction to try a defendant for an offense committed in Portugal. Because “the murder was committed in Portugal,” King v. Roche 38 —described its holding in exactly the same Gage argued, “the Court of King's Bench could not indict way the treatise writers did: All agreed that it barred the retrial him, and there was no method of trying him but upon a special commission.” 42 But no one *2002 else—not the

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000139 32 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... treatise writers or the other English cases that favorably 43 Indeed, though England ruled Wales at the time, a cited Hutchinson—adopted Gage's restrictive reading of that contemporaneous lawyer might have thought that Wales' precedent. authority to prosecute a defendant derived at least in part from its earlier status as “an absolute and undependent 42 Gage v. Bulkeley, Ridg. t. H. 263, 270–271, 27 Eng. Rep. Kingdom” rather than purely from authority delegated by 824, 827. (1794). England. 1 Keb. 663, 83 Eng. Rep. 1172 (K. B. 1663); see United States v. Lara, 541 U.S. 193, 210, 124 S.Ct. In the end, then, it's hard to see how anyone consulting the 1628, 158 L.Ed.2d 420 (2004). common law in 1791 could have avoided this conclusion: 44 While the issue may not have arisen often, the great weight of Indeed, everything that matters was contained in the authority indicated that successive prosecutions by different 1775 version of the Roche case report. Roche was sovereigns—even sovereigns as foreign to each other as indicted in England for a murder committed in South Africa. “To this indictment Captain Roche pleaded England and Portugal—were out of bounds. And anyone Autrefois acquit.” Roche, 1 Leach 134, 168 Eng. Rep. familiar with the American federal system likely would have 169. In response, the prosecution asked the court to thought the rule applied with even greater force to successive charge the jury both with “this issue [the plea of prosecutions by the United States and a constituent State, autrefois acquit], and that of Not guilty.” Ibid. The given that both governments derive their sovereignty from the court rejected that proposal, reasoning that “if the first American people. finding was for the prisoner, they could not go to the second, because that finding would be a bar.” Ibid. Far Unable to summon any useful preratification common law from saying “absolutely nothing” about double jeopardy, sources of its own, the government is left to nitpick ante, at 1971 – 1972, Roche is a serious problem for those that undermine its position. For example, the Court the government because it explicitly recognizes that a dismisses Beak because “Hutchinson is discussed only in the successful plea of autrefois acquit, even one based on a defendant's argument in that case, not the court's response.” foreign conviction, would bar a prosecution in England. Ante, at 1973. But the Beak court did not reject the Hutchinson But the Court ignores this, focusing instead on the missing explanatory citation to Hutchinson that was, in argument, and counsel's use of the case sheds light on any event, added shortly thereafter. how 17th- and 18th-century lawyers understood the double jeopardy bar. The Court likewise derides King v. THOMAS as “totally irrelevant” because in the 17th century, Wales B and England shared the same laws. But our federal and state governments share the same fundamental law and What we know about the common law before the Fifth source of authority, and the Wales example is at least Amendment's ratification *2003 in 1791 finds further somewhat analogous to our federal system. 43 Finally, the confirmation in how later legal thinkers in both England and Court complains that Roche's footnote citing Hutchinson was America described the rule they had inherited. added only in 1800, after the Fifth Amendment's ratification. Ante, at 1971 – 1972. But that is hardly a point for the Start with England. As it turns out, “it would have government, because even so it provides an example of a later been difficult to have made more than the most cursory reporter attempting to describe the pre-existing state of the examination of nineteenth century or later English treatises law; nor, as it turns out, was the footnote even essential to or digests without encountering” the Hutchinson rule. 45 In the Roche court's original analysis and conclusion reached 1802, a British treatise explained that “an acquittal on a in 1775, well before the Fifth Amendment's ratification. 44 criminal charge in a foreign country may be pleaded in bar And among all these complaints, we should not lose the of an indictment for the same offence in England.” 46 Three forest for the trees. The Court's attempts to explain away so decades later, another treatise observed (citing Hutchinson) many uncomfortable authorities are lengthy, detailed, even that “[a]n acquittal by a competent jurisdiction abroad is a herculean. But in the end, neither it nor the government bar to an indictment for the same offence before any other has mustered a single preratification common law authority tribunal.” 47 In 1846, the Scottish High Court of Justiciary approving a case of successive prosecutions by separate declared that “[i]f a man has been tried for theft in England, sovereigns for the same offense. we would not try him again here.” 48 Twentieth century treatises recited the same rule. 49 In 1931, the American Law

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Institute stated that “[i]f a person has been acquitted in a court recited the Hutchinson rule as black letter law. Chancellor of competent jurisdiction for an offense in another country Kent wrote that “the plea of autrefois acquit, resting on a he may not be tried for the same offense again in an English prosecution [in] any civilized state, would be a good plea in Court.” 50 And in 1971, an English judge explained that any other civilized state.” 52 THOMAS Sergeant explained the bar on “double jeopardy ... has always applied whether that “[w]here the jurisdiction of the United States court and the previous conviction or acquittal based on the same facts of a state Court is concurrent, the sentence of either court, was by an English court or by a foreign court.” 51 The whether *2004 of conviction or acquittal, may be pleaded in Court today asks us to assume that all these legal authorities bar to a prosecution in the other.” 53 William Rawle echoed misunderstood the common law's ancient rule. I would not. that conclusion in virtually identical words. 54 Indeed, one early commentator wrote that a “principal reason” for the 45 Grant, Successive Prosecutions by State and Nation: Double Jeopardy Clause was to prevent successive state Common Law and British Empire Comparisons, 4 and federal prosecutions, which he considered to be against UCLA L. Rev. 1, 9–11 (1956) (footnotes omitted). “[n]atural justice.” 55 Nor did these treatises purport to invent 46 2 L. MacNally, Rules of Evidence on Pleas of the Crown a new rule; they claimed only to recite the traditional one. 428 (1802); see also 1 T. Starkie, Criminal Pleading 300– 301, n. h (1814); 1 J. Chitty, Criminal Law 458 (2d ed. 52 1 Commentaries on American Law 176 (1826). 1816). 53 Constitutional Law 278 (1830). 47 J. Archbold, Pleading and Evidence in Criminal Cases 54 89 (5th ed. 1834). Many more authorities are to the View of the Constitution 191 (1825). same effect. See, e.g., 1 Encyc. of the Laws of England, 55 J. Bayard, Brief Exposition of the Constitution of the Autrefois aquit, 424–425 (A. Renton ed. 1897); 2 United States 150–151 (1845). J. Gabbett, Criminal Law 334 (1843); 2 E. Deacon, Digest of the Criminal Law of England 931 (1831); R. This Court's early decisions reflected the same principle. Matthews, Digest of Criminal Law 26 (1833); H. Nelson, In Houston v. Moore, a Pennsylvania court-martial tried a Private International Law 368, n. y (1889); 1 W. Russell, member of the state militia for desertion under an “act of Crimes and Indictable Misdemeanors 471–472 (2d ed. the legislature of Pennsylvania.” 56 The defendant objected 1826); H. Woolrych, Criminal Law 129 (1862); 2 M. that the state court-martial lacked jurisdiction because federal Hale, Pleas of the Crown 255 (1st Am. ed., S. Emlyn ed. 1847); H. Smith, Roscoe on the Law of Evidence 199 law criminalized the same conduct and prosecuting him in (8th ed. 1874). the state court could thus expose him to double jeopardy. In an opinion by Justice Washington, the Court disagreed and 48 Her Majesty's Advocate v. MacGregor, (1846) Ark. 49, allowed the prosecution, but reassured the defendant that “if 60. the jurisdiction of the two Courts be concurrent, the sentence 49 A. Gibb, International Law of Jurisdiction in England of either Court, either of conviction or acquittal, might be and Scotland 285–286 (1926); A. Gibson & A. Weldon, [later] pleaded in bar of the prosecution before the other.” 57 Criminal and Magisterial Law 225 (7th ed. 1919); S. In dissent, Justice Story thought the state court lacked Harris, Criminal Law 377 (9th ed. 1901); C. Kenny, jurisdiction because otherwise the defendant would be “liable Outlines of Criminal Law 469 (10th ed. 1920); H. Cohen, to be twice tried and punished for the same offence, against Roscoe on the Law of Evidence 172 (13th ed. 1908). the manifest intent of the act of Congress, the principles of the 58 50 ALI, Administration of Criminal Law § 16, p. 129 common law, and the genius of our free government.” But (Proposed Final Draft, Mar. 18, 1935). notice the point of agreement between majority and dissent: Both acknowledged that a second prosecution for the same 51 Regina v. Treacy, [1971] A. C. 537, 562, 2 W. L. R. 112, underlying offense would be prohibited even if brought by a 125 (opinion of Diplock, L. J.) (citing Roche, 1 Leach 59 134, 168 Eng. Rep. 169). separate government. Even more pertinently, consider how 18th-century Americans 56 understood the double jeopardy provision they had adopted. 5 Wheat. 1, 12, 5 L.Ed. 19 (1820). The legal treatises an American lawyer practicing between the 57 Id., at 31. founding and the Civil War might have consulted uniformly

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58 Id., at 72. 62 State v. Antonio, 7 S. C. L. 776 (1816).

59 The Court insists that Houston involved an unusual 63 Bartkus, 359 U.S. at 158–159, 79 S.Ct. 676 (Black, J., state statute that “imposed state sanctions for violation dissenting). of a federal criminal law.” Ante, at 1977. But so In the face of so much contrary authority, the Court winds what? Everyone involved in Houston agreed that the up leaning heavily on a single 1794 North Carolina Superior defendant had been tried by a Pennsylvania court, under Court decision, State v. Brown. But the Court's choice here is a Pennsylvania statute, passed by the Pennsylvania Legislature. And though there were separate sovereigns revealing. True, Brown said that a verdict in North Carolina with separate laws, everyone agreed there was only one would not be “pleadable in bar to an indictment preferred offense. against [the defendant] in the Territory South of the Ohio.” 64 Another case decided the same year also reflected the But the Court leaves out what happened next. Brown went on Hutchinson rule. In United States v. Furlong, one British to reject concurrent jurisdiction because trying the defendant subject killed another on the high seas, and the killer was “according to the several laws of each State” could result in indicted in an American federal court for robbery and murder. him being “cropped in one, branded and whipped in another, This Court unanimously held that “[r]obbery on the seas is imprisoned in a third, and hanged in a fourth; and all for one considered as an offence within the criminal jurisdiction of and the same offence.” 65 The North Carolina court viewed all nations” that can therefore be “punished by all,” and there that result as “against natural justice” and “therefore [could] can be “no doubt that the plea of autre fois acquit [double not believe it to be law.” 66 So it is that the principal support jeopardy] would be good in any civilized State, though resting the Court cites for its position is a state case that both (1) on a prosecution instituted in the Courts of any other civilized regarded transgressions of the laws of a State and a U.S. State.” 60 territory as the “same offence,” and (2) expressed aversion at the thought of both jurisdictions punishing the defendant for 67 60 5 Wheat. 184, 197, 5 L.Ed. 64 (1820). To be sure, that singular offense. Furlong proceeded to indicate that an acquittal for murder in an American court would not have prohibited 64 2 N. C. 100, 101. a later prosecution in a British court in this case. But that was only because the British courts would not have 65 Ibid. (emphasis added). recognized the jurisdiction of an American court to try a 66 murder committed by a British subject on the high seas. Ibid. Furlong's discussion is therefore perfectly consistent 67 Perhaps the only early state-law discussion that truly with the Hutchinson principle—a rule that applied only supports the Court's position is dicta in an 1834 Virginia when both courts had “competent jurisdiction of the decision. Hendrick v. Commonwealth, 32 Va. 707. Yet offence” and could actually place the defendant in even that support proves threadbare in the end, given that jeopardy. See 4 Blackstone, Commentaries 365. “the highest court of the same State later expressed the A number of early state cases followed the same rule. Indeed, view that such double trials would virtually never occur the Court today acknowledges that Massachusetts, Michigan, in our country.” Bartkus, 359 U.S. at 159, 79 S.Ct. 676 *2005 and Vermont all followed Hutchinson. Ante, at (Black, J., dissenting) (citing Jett v. Commonwealth, 59 1975. 61 The Court agrees that South Carolina did too, 62 but Va. 933, 947, 959 (1867) ). it believes that a later South Carolina case might have deviated from the Hutchinson rule. That decision, however, contains IV at best only “an inconclusive discussion coming from a State whose highest court had previously stated unequivocally that With the text, principles of federalism, and history now a bar against double prosecutions would exist.” 63 arrayed against it, the government is left to suggest that we should retain the separate sovereigns exception under the doctrine of stare decisis. But if that's the real basis for today's 61 Citing Commonwealth v. Fuller, 49 Mass. 313, 318 (1844); Harlan v. People, 1 Doug. 207, 212 (Mich. result, let's at least acknowledge this: By all appearances, 1843); State v. Randall, 2 Aik. 89 (Vt. 1827). the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000142 35 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... offense, yet the government wants this Court to tolerate the 74 Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, practice anyway. 138 L.Ed.2d 391 (1997). 75 Stare decisis has many virtues, but when it comes to enforcing Franchise Tax Bd. of Cal. v. Hyatt, ––– U.S. ––––, ––––, the Constitution this Court must take (and always has 139 S.Ct. 1485, 1499, ––– L.Ed.2d –––– (2019). taken) special care in the doctrine's application. After all, Take the “quality of [the] reasoning.” 76 The first cases to judges swear to protect and defend the Constitution, not to suggest that successive prosecutions by state and federal protect what it prohibits. And while we rightly pay heed authorities might be permissible did not seek to address to the considered views of those who have come before the original meaning of the word “offence,” the troubling us, especially in close cases, stare decisis isn't supposed federalism implications of the exception, or the relevant to be “the art of being methodically ignorant of what historical sources. Between 1847 and 1850, the Court 68 everyone knows.” Indeed, blind obedience to stare decisis decided a pair of cases, United States v. Marigold 77 would leave this Court still abiding grotesque errors like and Fox v. Ohio. 78 While addressing other matters in 69 70 *2006 Dred Scott v. Sandford, Plessy v. Ferguson, and those decisions, the Court offered passing approval to the Korematsu v. United States. 71 As Justice Brandeis explained, possibility of successive state and federal prosecutions, but “in cases involving the Federal Constitution, where correction did so without analysis and without actually upholding through legislative action is practically impossible, this Court a successive conviction. Indeed, in place of a careful has often overruled its earlier decisions. The Court bows to constitutional analysis, the Fox Court merely offered its the lessons of experience and the force of better reasoning, judgment that “the benignant spirit” of prosecutors could recognizing that the process of trial and error, so fruitful be relied on to protect individuals from too many repetitive in the physical sciences, is appropriate also in the judicial prosecutions. 79 We do not normally give precedential effect function.” 72 to such stray commentary.

68 R. Cross & J. Harris, Precedent in English Law, intro. 76 Janus v. State, County, and Municipal Employees, 585 comment (4th ed. 1991) (attributing the aphorism to U.S. ––––, ––––, 138 S.Ct. 2448, 2479, 201 L.Ed.2d 924 Jeremy Bentham). (2018).

69 19 How. 393, 15 L.Ed. 691 (1857). 77 9 How. 560, 13 L.Ed. 257 (1850).

70 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). 78 5 How. 410, 12 L.Ed. 213 (1847).

71 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). 79 Id., at 435.

72 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406– Perhaps the first real roots of the separate sovereigns 408, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (dissenting exception can be traced to this Court's 1852 decision in opinion) (footnotes omitted). Moore v. Illinois. 80 As it did five years later and more For all these reasons, while stare decisis warrants respect, it notoriously in Dred Scott, 81 the Court in Moore did violence has never been “ ‘an inexorable command,’ ” 73 and it is “at its to the Constitution in the name of protecting slavery and slaveowners. In Dred Scott the Court held that the Due weakest when we interpret the Constitution.” 74 In deciding Process Clause prevented Congress from prohibiting slavery whether one of our cases should be retained or overruled, in the territories, though of course the Clause did nothing of this Court has traditionally considered “the quality of the 82 decision's reasoning; its consistency with related decisions; the sort. And in Moore the *2007 Court upheld a state legal developments since the decision; and reliance on the fugitive slave law that it judged important because the States supposedly needed “to protect themselves against the influx decision.” 75 Each of these factors, I believe, suggests we either of liberated or fugitive slaves, and to repel from their should reject the separate sovereigns exception. soil a population likely to become burdensome and injurious, either as paupers or criminals.” 83 The defendant, who had 73 Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, harbored a fugitive slave, objected that upholding the state 172 L.Ed.2d 565 (2009). law could potentially expose him to double prosecutions by

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000143 36 Gamble v. United States, 139 S.Ct. 1960 (2019) 204 L.Ed.2d 322, 19 Cal. Daily Op. Serv. 5479, 2019 Daily Journal D.A.R. 5248... the state and federal governments. The Court rejected that It matters, too, that these cases “were decided by the argument, reasoning simply that such double punishment narrowest of margins, over spirited dissents challenging could be consistent with the Constitution if the defendant had the basic underpinnings of those decisions.” 88 In Moore, violated both state and federal law. 84 Yet notably, even here, Justice McLean wrote that although “the Federal and State the Court did not actually approve a successive prosecution. Governments emanate from different sovereignties,” they “operate upon the same people, and should have the same 89 80 14 How. 13, 14 L.Ed. 306. end in view.” He “deeply regret[ted] that our government should be an exception to a great principle of action, 81 19 How. 393, 15 L.Ed. 691. sanctioned by humanity and justice.” 90 Bartkus and Abbate, 82 Id., at 450. cases decided in the 1950s that more clearly approved the separate sovereigns exception, were decided only by 5-to-4 83 Moore, 14 How. at 18. and 6-to-3 margins, and Justice Black's eloquent dissents 84 Id., at 16. in those cases have triggered an avalanche of persuasive 91 Nor did the trajectory of the separate sovereigns exception academic support. *2008 improve much from there. The first time the Court actually approved an “instance of double prosecution [and] failed 88 Payne v. Tennessee, 501 U.S. 808, 828–829, 111 S.Ct. to find some remedy ... to avoid it” didn't arrive until 2597, 115 L.Ed.2d 720 (1991). 1922. 85 In that case, United States v. Lanza, 86 the federal 89 14 How. at 22 (dissenting opinion). government prosecuted the defendants for manufacturing, transporting, and possessing alcohol in violation of the 90 Ibid. National Prohibition Act. The defendants argued that they had 91 See, e.g., Cassell, The Rodney King Trials and the already been prosecuted by the State of Washington for the Double Jeopardy Clause: Some Observations on Original same offense. But, notably, the defendants did not directly Meaning and the ACLU's Schizophrenic Views of the question the permissibility of successive prosecutions for Dual Sovereign Doctrine, 41 UCLA L. Rev. 693, 708– the same offense under state and federal law. Instead, the 720 (1994); Braun, Praying to False Sovereigns: The defendants argued that both of the laws under which they Rule Permitting Successive Prosecutions in the Age of were punished really derived from the “same sovereign:” the Cooperative Federalism, 20 Am. J. Crim. L. 1 (1992); national government, by way of the Eighteenth Amendment Amar & Marcus, Double Jeopardy Law After Rodney that authorized Prohibition. After rejecting that argument as King, 95 Colum. L. Rev. 1, 6–15 (1995); King, The an “erroneous view of the matter,” the Court proceeded on, Problem of Double Jeopardy in Successive Federal-State perhaps unnecessarily, to offer its view that “an act denounced Prosecutions: A Fifth Amendment Solution, 31 Stan. L. as a crime by both national and state sovereignties is an Rev. 477 (1979). offense against the peace and dignity of both and may be What is more, the “underpinnings” of the separate sovereigns punished by each.” 87 Given that the Court was not asked exception have been “erode[d] by subsequent decisions of this directly to consider the propriety of successive prosecutions Court.” 92 When this Court decided Moore, Lanza, Bartkus, under separate state and federal laws for the same offense, it and Abbate, the Double Jeopardy Clause applied only to the is perhaps unsurprising the Court did not consult the original federal government under this Court's decision in Palko v. meaning of the Double Jeopardy Clause or consult virtually Connecticut. 93 In those days, one might have thought, the any of the relevant historical sources before offering its separate sovereigns exception at least served to level the dictum. playing field between the federal government and the States: If a State could retry a defendant after a federal trial, then 85 Grant, The Lanza Rule of Successive Prosecutions, 32 the federal government ought to be able to retry a defendant Colum. L. Rev. 1309, 1311 (1932). after a state trial. But in time the Court overruled Palko and held that the Double Jeopardy Clause does apply to the States 86 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). —and, with that, a premise once thought important to the 87 Id., at 381, 382, 43 S.Ct. 141. exception fell away. 94

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99 92 United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. fidelity to an unjustifiable rule.” Instead, “[i]f it is 2310, 132 L.Ed.2d 444 (1995). clear that a practice is unlawful, individuals' interest in its discontinuance clearly outweighs any law enforcement 93 302 U.S. 319, 328–329, 58 S.Ct. 149, 82 L.Ed. 288 100 (1937). ‘entitlement’ to its persistence.” That is the case here.

94 Benton, 395 U.S. at 794, 89 S.Ct. 2056. 99 Arizona v. Gant, 556 U.S. 332, 350, 129 S.Ct. 1710, 173 Nor has only the law changed; the world has too. And L.Ed.2d 485 (2009). when “far-reaching systemic and structural changes” make 100 an “earlier error all the more egregious and harmful,” stare Id., at 349, 129 S.Ct. 1710. decisis can lose its force. 95 In the era when the separate The Court today disregards these lessons. It worries that sovereigns exception first emerged, the federal criminal code overturning the separate sovereigns rule could undermine the was new, thin, modest, and restrained. Today, it can make reliance interests of prosecutors in transnational cases who none of those of boasts. Some suggest that “the federal might be prohibited from trying individuals already acquitted government has [now] duplicated virtually every major state by a foreign court. Ante, at 2009. Yet even on its own terms, this argument is unpersuasive. The government has not even crime.” 96 Others estimate that the U.S. Code contains more attempted to quantify the scope of the alleged “problem,” than 4,500 criminal statutes, not even counting the hundreds and perhaps for good reason. Domestic prosecutors regularly of thousands of federal regulations that can trigger criminal coordinate with their foreign counterparts when pursuing 97 penalties. Still others suggest that “ ‘[t]here is no one in transnational criminals, so they can often choose the most the United States over the age of 18 who cannot be indicted favorable forum for their mutual efforts. And because for some federal crime.’ ” 98 If long ago the Court could Blockburger requires an identity of elements before the have thought “the benignant spirit” of prosecutors rather double jeopardy bar can take hold, domestic prosecutors, than unwavering enforcement of the Constitution sufficient armed with their own abundant criminal codes, will often be protection against the threat of double prosecutions, it's able to find new offenses to charge if they are unsatisfied with unclear how we still might. outcomes elsewhere.

95 South Dakota v. Wayfair, Inc., 585 U.S. ––––, ––––, * * * 138 S.Ct. 2080, 2097, 201 L.Ed.2d 403 (2018) (internal quotation marks omitted). Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of 96 E. Meese, Big Brother on the Beat: The Expanding Rights, they thought the liberties promised there worth the Federalization of Crime, 1 Texas L. Rev. L. & Pol'y 1, costs. It is not for this Court to reassess this judgment to 22 (1997). make the prosecutor's job easier. Nor is there any doubt 97 See Wilson, That Justice Shall Be Done, 36 No. Ill. L. that the benefits the framers saw in prohibiting double Rev. 111, 121 (2015). prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might 98 Clark & Joukov, Criminalization of America, 76 Ala. in multiple prosecutions against an individual, exhausting L. 225 (2015). See also Larkin, Public Choice Theory themselves only when those who hold the reins of power are and Overcriminalization, 36 Harv. J. L. Pub. Pol'y 101 715, 726 (2013) (“There are so many federal criminal content with the result, it is “the poor and the weak,” laws that no one, including the Justice Department, the and the unpopular and controversial, who suffer first—and principal federal law enforcement agency, knows the there is nothing to stop them from being the last. The separate actual number of crimes”). sovereigns exception was wrong when it was invented, and it That leaves reliance. But the only people who have relied remains wrong today. on the separate sovereigns exception are prosecutors who have sought to double-prosecute and double-punish. And 101 Bartkus, 359 U.S. at 163, 79 S.Ct. 676 (Black, J., this Court has long rejected the idea that “law enforcement dissenting). reliance interests outweig[h] the interest in protecting I respectfully dissent. individual constitutional rights so as to warrant *2009

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All Citations

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was experienced or inexperienced. U.S. Const. Amend. 4. 2019 IL App (1st) 160987 Appellate Court of Illinois, First District, 2 Cases that cite this headnote Second Division.

The PEOPLE of the State of [2] Arrest Illinois, Plaintiff-Appellee, Justification for pat-down search v. In cases involving police-citizen encounters, Andre HOLMES, Defendant-Appellant. Terry gives officers a narrowly drawn authority to detain people and search for weapons where No. 1-16-0987 they reasonably believe that criminal activity | may be afoot and that the person seized may Opinion filed March 5, 2019 be armed and presently dangerous. U.S. Const. Amend. 4. Synopsis Background: Following a bench trial and denial of motion Cases that cite this headnote to suppress physical evidence, defendant was convicted in the Circuit Court, Cook County, No. 12 CR 15740, Timothy Joseph Joyce, J., of aggravated unlawful use of a weapon. [3] Arrest Defendant appealed. Reasonableness; reason or founded suspicion, etc A seizure, short of an arrest, is justified only where an officer reasonably suspects that [Holding:] The Appellate Court, Hyman, J., held that security the person apprehended is committing or has guard's tip was insufficient to establish reasonable suspicion committed a criminal offense. U.S. Const. to make a Terry investigatory stop of defendant. Amend. 4.

Cases that cite this headnote Reversed.

Mason P.J., filed a dissenting opinion. [4] Arrest Justification for pat-down search Once a suspect has been seized, he or she may only be frisked if an officer reasonably suspects West Headnotes (8) that the person stopped is armed and dangerous; the validity of the initial stop constitutes a [1] Arrest necessary precondition to the validity of any later Particular cases search. U.S. Const. Amend. 4. Security guard's tip that a man in the park Cases that cite this headnote had a gun in his pocket was unreliable, and thus was insufficient to establish a reasonable suspicion to make a Terry investigatory stop of [5] Arrest suspect matching description; tip was effectively Reasonableness; reason or founded anonymous as police officer who encountered suspicion, etc suspect did not know how the security guard The Appellate Court determines the reported the tip, did not know whether the reasonableness of a Terry investigatory stop of a security guard was actually an eyewitness suspect based on the facts known to the officer or learned his or her information elsewhere, at the moment the stop occurred. U.S. Const. and did not know whether security guard Amend. 4.

Cases that cite this headnote Attorneys and Law Firms

James E. Chadd, Patricia Mysza, and Benjamin Wimmer, of [6] Criminal Law State Appellate Defender’s Office, of Chicago, for appellant. Review De Novo Applying de novo review, the Appellate Court Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. may make its own determination as to whether Spellberg, Matthew Connors, and Mari R. Hatzenbuehler, the facts justify a challenged seizure as a matter Assistant State’s Attorneys, of counsel), for the People. of law. U.S. Const. Amend. 4.

Cases that cite this headnote OPINION

JUSTICE HYMAN delivered the judgment of the court, with [7] Arrest opinion. Reasonableness; reason or founded suspicion, etc **251 ¶ 1 Chicago police officer Delgado received For purposes of information sufficient to information from Sergeant Wilkerson, who received establish reasonable suspicion to justify a Terry information from an unidentified Chicago Park District investigatory stop of a suspect, cases involving security guard, whose source of information was unknown, known informants are stronger cases than that a man in Brainerd Park had a gun in his pocket. those involving anonymous tipsters and in all The man was described as black, about five-and-a-half cases involving tips, anonymous or otherwise, feet tall, wearing a purple shirt and black jeans. Two or paramount concerns involve the informant's three minutes after talking to Wilkerson, Delgado and his veracity, reliability, and basis of knowledge. U.S. partner saw Holmes, who matched the description. There was Const. Amend. 4. nothing inappropriate about Holmes' conduct. Nonetheless, the officers approached Holmes, and Delgado immediately Cases that cite this headnote touched the pocket of his jeans. Delgado felt what he recognized as the trigger and trigger guard of a gun. The [8] Arrest officers ordered Holmes to the ground, put him in handcuffs, Reasonableness; reason or founded and placed him under arrest. suspicion, etc ¶ 2 Holmes now challenges the initial seizure, before his For purposes of information sufficient to arrest, as an unconstitutional Terry stop (Terry v. Ohio, 392 establish reasonable suspicion to justify a Terry U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). He argues investigatory stop of a suspect, an anonymous that the officers did not have reasonable suspicion to stop tip, without more, generally provides virtually him. In particular, both the security guard's identity and nothing, by which one could conclude that the the source of information remain unknown, “effectively” tipster is honest, that his or her information is an anonymous tip, which, without more, cannot provide a reliable, or that he or she has a basis by which to reasonable suspicion of criminal activity. The State responds predict a suspect's criminal activity. U.S. Const. that the tip was reliable and not anonymous and contained Amend. 4. sufficient information to support the Terry stop. Cases that cite this headnote ¶ 3 The round of “telephone tag” that led to Delgado's decision to stop Holmes does serious damage to the tip's reliability; although, even if the involvement of a “park security guard” *1269 Appeal from the Circuit Court of Cook County. alone arguably dissipated the cloud of anonymity, we would No. 12 CR 15740, Honorable Timothy Joseph Joyce, Judge, still find the tip insufficiently reliable. presiding.

¶ 4 In a free society, we should be ever mindful of the ¶ 10 So testified both Holmes and Delgado at a hearing danger of anonymous tips. “[Unlawful possession of guns] on Holmes's pretrial motion to suppress evidence. After is a serious matter, but so is the loss of our freedom to Holmes's testimony, the trial court shifted the burden to come and go as we please without police interference.” the State to justify Holmes's detention. Holmes's counsel Navarette v. California, 572 U.S. 393, 414, 134 S.Ct. 1683, argued that the evidence had not indicated the source of 1697, 188 L.Ed.2d 680 (2014) (Scalia, J., dissenting, joined what Wilkerson had told the officers and, without more, was by Ginsburg, Sotomayor, and Kagan, JJ.). Moreover, while insufficient a Terry stop and frisk. hardly proof of *1270 **252 anything, anonymous tips can be highly inaccurate, misleading, and motivated by bad ¶ 11 The State countered that the officers' interaction with intentions, all of which can pose a serious threat to our fourth Holmes was nothing more than a field interview and, even if amendment rights. a seizure, was reasonable because it did not matter whether the source of Wilkerson's information was identifiable. ¶ 5 We reverse the denial of Holmes's motion to suppress, and since the State will be unable to proceed without evidence of ¶ 12 The trial court denied Holmes's motion finding that, the suppressed gun, Holmes's conviction is reversed outright. though based on “an anonymous tip,” the officers' actions were reasonable because a sufficient basis existed to stop Holmes. After arguments on Holmes's motion to reconsider, the trial court found that the interaction between Holmes and ¶ 6 Background the officers “was not a Terry stop,” characterizing it instead ¶ 7 On a summer evening in 2012, a crowd of some as “an encounter between a citizen and police officers.” The 1200 people attended an annual picnic in Brainerd Park. court, “without giving credibility one way or the other to Responding to a request for assistance from Sergeant the tip the officers received” found that the officers could Wilkerson, Chicago police officers Delgado and Montes reasonably approach Holmes and ask him some questions went to the park. When they arrived, Wilkerson told them based on the information they knew. that a park security guard had said that a man was in the park with a gun. Wilkerson never said whether the security ¶ 13 The State proceeded to trial on only one count, guard personally observed the man. Wilkerson also did not aggravated unlawful use of a weapon based on Holmes's lack otherwise identify the security guard or say how much time of a FOID card, and the parties adopted Delgado's suppression had elapsed since he had talked to the security guard or hearing testimony. The parties also stipulated that, as of the provide any information concerning the unidentified man's date of Holmes's arrest, he did not have a valid FOID card. location in the park. Wilkerson described the man as black, The trial court found him guilty and sentenced him to 18 about five-and-a-half feet tall, and wearing a purple shirt with months of felony probation. black jeans. *1271 **253 ¶ 14 Holmes filed a motion for a new trial, ¶ 8 Delgado and Montes then set off walking through the reasserting his claim that the trial court had erred by denying park. About two to three minutes after talking to Wilkerson, his motion to suppress. The trial court denied Holmes's they saw Holmes, who matched Wilkerson's description. motion. Holmes was not doing anything visibly illegal. There were no observable bulges in Holmes's pocket. ¶ 15 Analysis ¶ 9 Both officers walked up to Holmes, and Montes asked Holmes if they could speak with him. While Montes was [1] ¶ 16 Holmes argues that the trial court erred when talking to Holmes, Delgado got closer and touched Holmes's it denied his motion to suppress because the tip provided jeans pocket. Delgado felt the trigger and trigger guard of to the officers was “effectively anonymous” and therefore a gun and immediately told Holmes not to move and to get “insufficient to support reasonable suspicion for the stop down on the ground. Montes handcuffed Holmes and Delgado and frisk.” Holmes asserts that Delgado's frisk of his person recovered a gun from Holmes's pocket, loaded with four constituted a Terry stop sufficient to trigger the protections rounds of ammunition. The officers arrested Holmes. of the fourth amendment and that the tip lacked the requisite legal corroboration to establish reasonable suspicion for a

Terry stop and frisk. As an alternative argument, Holmes 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Once seized, he or she claims that his pat-down was not justified by the so-called may only be frisked if an officer “reasonably suspect[s] that “special needs” exception to the fourth amendment. If we the person stopped is armed and dangerous.” Id. In short, the find the gun should have been suppressed, Holmes asks us to validity of the initial stop constitutes a necessary precondition reverse his conviction outright because the State would not be to the validity of any later search. able to proceed at a new trial. *1272 **254 [5] [6] ¶ 20 We determine the ¶ 17 The State, for its part, no longer disputes the nature reasonableness of a Terry stop based on the facts known of the encounter between Holmes and the officers, agreeing to the officer at the moment the stop occurred. People v. that they conducted a Terry stop and frisk. The State argues, Thomas, 198 Ill. 2d 103, 109, 259 Ill.Dec. 838, 759 N.E.2d however, the tip that led to Holmes's detention came from an 899 (2001). In considering the interaction between a citizen identifiable security guard. The State assures us that we can and the police, we accept the facts as found by the trial rely on the security guard's tip because it was given in person court unless those findings are manifestly erroneous. People and security guards are presumptively more trustworthy v. Harris, 228 Ill. 2d 222, 230, 319 Ill.Dec. 823, 886 N.E.2d reporters of crime than ordinary eyewitnesses. The State 947 (2008). Applying de novo review, we may make our own argues only that the stop was supported by reasonable determinations as to whether the facts justify the challenged suspicion based on the security guard's tip and agrees “the seizure as a matter of law. Id. at 230, 319 Ill.Dec. 823, 886 special needs doctrine is not applicable.” Naturally, given its N.E.2d 947. position that the stop was reasonable, the State asks us to affirm. ¶ 21 Officer Delgado's justification for Holmes's seizure relies entirely on information received from Sergeant Wilkerson, ¶ 18 We find the security guard's tip insufficiently reliable. which was received from the security guard, who, because the The State's argument depends on multiple assumptions that record is silent, may or may not have had firsthand knowledge the record does not support. The State assumes that the that a man matching Holmes's description had a gun. While security guard provided the tip in person; the record reveals the circumstances are somewhat unusual, the legal framework that Delgado did not know how the security guard reported for evaluating third-party tips has been fairly well-settled. to Sergeant Wilkerson. The State argues that security guards by nature are more reliable eyewitnesses, but we do not know [7] [8] ¶ 22 Informant tips “may vary greatly in their whether the security guard was actually an eyewitness or value and reliability.” Adams v. Williams, 407 U.S. 143, learned his or her information elsewhere or, for that matter, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Cases involving whether he or she was an experienced or inexperienced known informants are “stronger case[s]” than those involving security guard. Given all of these unknowns, we agree with anonymous tipsters. Id. at 146, 92 S.Ct. 1921. In all cases Holmes that the tip was “effectively anonymous” and did not involving tips, anonymous or otherwise, paramount concerns support a finding of reasonable suspicion. We reverse the trial involve the informant's “veracity, reliability, and basis of court's denial of Holmes's motion to suppress and reverse his knowledge.” (Internal quotation marks omitted.) Alabama v. conviction outright. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). An anonymous tip, without more, generally provides [2] [3] [4] ¶ 19 We begin by setting out the foundational “virtually nothing” by which one could conclude that the principles of law applicable to this type of police-citizen tipster is honest, that his or her information is reliable, or that encounter. Broadly speaking, Terry, 392 U.S. 1, 88 S.Ct. he or she has a basis by which to predict a suspect's criminal 1868, governs. Terry gives officers a “narrowly drawn activity. Id. at 329, 110 S.Ct. 2412. authority” to detain people and search for weapons where they reasonably believe that “criminal activity may be afoot” ¶ 23 These principles collided in Florida v. J.L., 529 U.S. 266, and that the person seized “may be armed and presently 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (discussing dangerous.” Id. at 27, 30, 88 S.Ct. 1868. The justifications Williams and White). In J.L., an unknown tipster called and for the seizure and search are distinct. A seizure, short of an alleged that a young black man was standing at a bus stop, arrest, is justified only where an officer “reasonably suspects wearing a plaid shirt, and carrying a gun. Id. at 268, 120 S.Ct. that the person apprehended is committing or has committed 1375. When officers arrived at the bus stop, they saw J.L. a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326, wearing a plaid shirt, but they did not see him do anything

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000150 4 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 illegal, they did not see a firearm, and he made no furtive ¶ 26 Only one case in Illinois, People v. Lopez, 2018 IL App movements. Id. The court found the anonymous tip unreliable (1st) 153331, 425 Ill.Dec. 404, 112 N.E.3d 1069, has analyzed because there had been no predictive information given, so Navarette, and we find its analysis applicable and persuasive the officers were unable to judge the informant's knowledge as to Holmes's detention. or credibility. Id. at 271, 120 S.Ct. 1375. Moreover, the tipster had not explained how he or she knew about the gun and ¶ 27 In Lopez, the arresting police officer received provided no information to suggest inside knowledge. Id. It information from another officer about “ ‘a DUI driver’ ” in did not matter that the tip turned out to be correct because the a black Ford Expedition with a partial license plate number officers did not have reasonable suspicion of criminal activity of “NZ 1.” Id. ¶ 4. The Expedition was being driven by “ ‘a before the stop. Id. male Hispanic.’ ” Id. The arresting officer did not know the identity of the person who reported the drunk driver and did ¶ 24 J.L. also rejected two arguments pressed by the not know how much time had passed from the initial report to government. First, the court noted that it was unremarkable the traffic stop. Id. The officer found a black Expedition with a that a tip was able to provide accurate information about plate beginning with “N 211.” Id. ¶ 5. The Expedition did not “location and appearance.” Id. at 272, 120 S.Ct. 1375. commit any traffic violations. Id. Once the arresting officer These features are readily observable by anyone and, in any turned on his emergency lights, the Expedition immediately event, do not provide the reasonable suspicion of criminal pulled over. Id. activity necessary to support a Terry stop. Id. Second, the court declined to adopt a “firearm exception” to Terry. Id. ¶ 28 Relying on Navarette, the court in Lopez found that Recognizing the danger of guns, the court said that any such the arresting officer lacked sufficient information for the rule would “enable any person seeking to harass another to stop. The court found that, unlike Navarette, no information set in motion an intrusive, embarrassing police search of the indicated what the original tipster had witnessed to support targeted person simply by placing an anonymous call falsely a conclusion that the driver of the Expedition was drunk. Id. reporting the target's unlawful carriage of a gun.” Id. The ¶ 21. Also, unlike Navarette, no information indicated that fourth amendment *1273 **255 “is not so easily satisfied.” the tipster gave a name or contacted the police through an Id. at 273, 120 S.Ct. 1375. emergency number. Id. ¶ 22. So, the court found, “where there is no evidence that the tipster gave a name or contacted ¶ 25 Most recently, the Supreme Court addressed the issue the police through an emergency number, ‘the tip must be of anonymous tips in Navarette, 572 U.S. 393, 134 S.Ct. treated as an anonymous one, and its reliability hinges on the 1683. There, a 911 caller reported that another car ran her existence of corroborative details observed by the police.’ ” off the road. Id. at 395, 134 S.Ct. at 1686 She provided the Id. (quoting People v. Smulik, 2012 IL App (2d) 110110, ¶ make, model, license plate number, the mile marker, and the 8), 357 Ill.Dec. 820, 964 N.E.2d 183. Looking then to J.L., direction of travel. Id. at 395-97, 134 S.Ct. at 1686-87. About the court concluded that the only details confirmed by the 15 minutes later, an officer saw the car and pulled it over. arresting officer were the location, direction, make, color, and Id. at 396-97, 134 S.Ct. at 1687. The court, assuming the partial plate of the Expedition. Id. ¶ 23. That information was 911 caller was anonymous, found that the details in the call not enough to confirm any allegation of illegality. Id. provided evidence that the caller had firsthand knowledge of the incident, thereby distinguishing the case from J.L. Id. at ¶ 29 In every legally relevant respect, the tip on which 399-400, 134 S.Ct. at 1689. The court also found reliability Delgado and Montes relied is strikingly similar to the tip based on the officers' observation of the car, suggesting in Lopez. Just as the officer in Lopez, Delgado received the tipster reported the incident contemporaneously with his tip from another officer. While Sergeant Wilkerson told its occurrence. Id. at 399-400, 134 S.Ct. at 1689. Finally, Delgado that he received information about a man with a gun the court found the tip reliable because the caller exposed from a park security guard, just as in Lopez, no testimony herself to identification, and therefore accountability, by identified the ultimate source of the information that the first using the 911 system. Id. at 399-401, 134 S.Ct. at 1689-90. officer received. There is nothing in the record to indicate Nevertheless, Navarette was a self-described “ ‘close case.’ ” whether the guard personally **256 *1274 observed the Id. at 404, 134 S.Ct. at 1692. gun possession or if the guard received the information from somebody else. Just as the officer in Lopez, Delgado was told a general description of Holmes's appearance and that

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000151 5 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 he was somewhere in the park. Finally, just as the officer in We therefore cannot infer that the security guard had personal Lopez, Delgado confirmed that Holmes matched the general knowledge of the claimed illegal activity or that the guard description but did not notice Holmes doing anything illegal could have been tracked down as easily as the tipsters in when he saw him. Like the court in Lopez, we find the tip less Miller and A.V. had the information turned out false. reliable than the “close case” in Navarette. ¶ 33 The State also argues, citing United States v. Robinson, ¶ 30 The State makes several arguments in support of the 670 F.3d 874, 876-77 (8th Cir. 2012), that “security guards reliability of the security guard's tip, which may have some [are] especially reliable tipsters in the context of assessing the surface appeal but once examined are all flawed. The State reasonableness of a police officer's suspicion.” The Eighth argues that informants who provide tips in person are more Circuit's decision makes that point, but the genesis of its reliable than those who provide information over the phone. holding warrants more analysis than the State provides. The We have no quarrel with that proposition, as there are ample case that the Eighth Circuit relies on for this principle comes cases in Illinois supporting it. E.g., People v. Miller, 355 out of the Seventh Circuit. Id. at 876 (citing Gramenos v. Ill. App. 3d 898, 903, 291 Ill.Dec. 830, 824 N.E.2d 1080 Jewel Cos., 797 F.2d 432 (7th Cir. 1986) ). There, the court (2005) (citing In re A.V., 336 Ill. App. 3d 140, 144, 270 engaged in an extensive discussion about the reliability of Ill.Dec. 536, 783 N.E.2d 111 (2002) ). But, we have no eyewitnesses and concluded **257 *1275 that a security idea whether the security guard provided the information to guard, who personally observed a suspected crime, “is not just Sergeant Wilkerson in person because Delgado did not know any eyewitness.” Gramenos, 797 F.2d at 439. Security guards and he was the only officer to testify. Even if we were to in these circumstances face institutional pressures to err on the indulge in speculation that the security guard gave Wilkerson side of caution before accusing patrons of their establishments the tip in person, cases like Miller and A.V. are distinguishable. of criminal wrongdoing. Id.

¶ 31 In Miller, police received an in-person tip from a source ¶ 34 We cannot apply the Seventh and Eighth Circuits' who personally saw the defendant carrying a gun. Id. at endorsement of security guard tips to Holmes's detention. 899, 291 Ill.Dec. 830, 824 N.E.2d 1080. The officers then We do not know whether or not the security guard who drove only one-eighth of a mile to where they observed reported to Sergeant Wilkerson personally observed the gun the defendant, allowing the court to infer that the informant possession. Nothing in the record explains the source of the “could have been traced” because he likely would have still security guard's information. As a result, we cannot say that been near the scene. Id. at 903-04, 291 Ill.Dec. 830, 824 the security guard was an “eyewitness.” For that reason, the N.E.2d 1080. Similarly, in A.V., the tipster approached police institutional pressures that bear on security guards to avoid and told them a kid was showing a gun to other young people falsely implicating someone do not apply. For example, a in a park. 336 Ill. App. 3d at 141, 270 Ill.Dec. 536, 783 guard who hears of some criminal activity from another N.E.2d 111. Five or six others and the officer corroborated source does not bear personal responsibility for the error if the the information. Id. The court found that the information was source turns out to be wrong. He or she can simply pass on the conveyed timely; the officers found the respondent within blame for the incorrect information to the unknown source. one minute of the tip and did not travel far. Id. at 144, 270 So, unlike the eyewitness security guard in Robinson, there Ill.Dec. 536, 783 N.E.2d 111. The court inferred that the is no corporate or institutional “self-interest” weighing on the tipsters remained in the park and “could be found and held guard who simply passes on information he or she learned accountable.” Id. from another.

¶ 32 The tip from the security guard differs markedly from ¶ 35 All of this discussion about the reliability of security the tip in both Miller and A.V. Even if the guard made his guard tips assumes that Sergeant Wilkerson made personal or her report in person and from the park, unlike Miller and contact with the security guard, which the record does not A.V., we do not know whether the guard personally observed answer. During the suppression hearing, defense counsel and the allegedly illegal activity. Additionally, we do not know Delgado engaged in this exchange: the amount of time that elapsed between the tip and Holmes's detention. We know that two to three minutes passed from “Q. Did Sergeant Wilkerson indicate to you whether or not the time Delgado talked to Wilkerson, but we do not know he met with his park security or the security officer called how long before that the security guard spoke with Wilkerson. him on his phone?

S.Ct. at 1692. While the officers there were confronted with A. That I don't know. an anonymous tip, there were a lot of things that the officers did know. They knew that the tipster personally observed Q. Did the security officer say where my client got this gun the alleged illegality, they confirmed the details in the tip a from? demonstrably short time after receiving it, and they knew that [STATE]: Objection: Relevance. the tipster called in on the 911 system, allowing for the call to be traced. Id. at 399-401, 134 S.Ct. at 1689-90. If that case [THE COURT]: Overruled. was “close,” ours presents too many unknowns to reasonably conclude that the tip was reliable enough to support a Terry A. I have no idea if he told him whether he saw it or where stop. We do not know the name or have a description of he was or if he called.” the security guard. We do not know how the security guard Delgado's testimony does not establish, and we cannot reported the information to Sergeant Wilkerson. For that assume, that Wilkerson confirmed for himself the identity matter, we do not know how the security guard came across of the security guard. Furthermore, assuming the security the information in the first place, whether he or she personally guard got a tip from a concerned citizen, the testimony does observed the gun possession or whether it was reported by not establish whether the security guard received it from a another source. citizen in person or by phone. Notably, Delgado's testimony was offered by the State after the trial court had shifted the ¶ 38 Similarly, while we know that it was only two to three burden to the State to justify Holmes's detention. See People minutes from the time Wilkerson told Delgado and Montes about the man with a gun to the time that Holmes was stopped, v. Brooks, 2017 IL 121413, ¶ 22, 422 Ill.Dec. 850, 104 N.E.3d we have no idea how long it took from the time of the original 417 (burden shifts to State to justify intrusion after defendant observation of the man with the gun to the time Wilkenson makes prima facie showing that evidence was obtained by was told. The fourth amendment “is not so easily satisfied.” illegal seizure). We see no reason for the State not to have J.L., 529 U.S. at 273, 120 S.Ct. 1375. called the park security guard, if he or she is as identifiable as the State purports, to give a firsthand account.

¶ 36 As a final argument, the State asks us to find the tip ¶ 39 Responses to the Dissent reliable because Wilkerson's description—a black man, 5 feet, 6 inches to 5 feet, 8 inches tall, wearing a purple shirt and ¶ 40 We, as well as the dissent, are rightly concerned about black jeans—was more specific than the description in J.L. the scourge of gun violence in Cook County. But that does not See 529 U.S. at 268, 120 S.Ct. 1375 (“a young black male diminish or abrogate the protections afforded under the fourth standing at a particular bus stop and wearing a plaid shirt”). amendment. An all's-well-that-ends-well approach, one that So what. We fail to see any indication in J.L. that the outcome excuses an unconstitutional seizure because it turns up illegal would have differed had the tipster been able to describe activity, violates bedrock fourth amendment principles. See J.L.'s height. J.L. expressly rejected location and physical Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 appearance as sufficient indicators of the most important fact L.Ed.2d 441 (1963) (noting Court has “consistently rejected” necessary for a Terry stop: suspicion of criminal activity. Id. at proposition “that a search unlawful at its inception may be 272, 120 S.Ct. 1375 (“The reasonable suspicion here at issue validated by what turns up”); see also United States v. Shrum, requires that a tip be reliable in its assertion of illegality, not 908 F.3d 1219, 1232 (10th Cir. 2018) (“Fourth Amendment just in its tendency to identify a determinate **258 *1276 seizure unlawful at its inception does not change character person.”). Officer Delgado testified that he did not observe from its success” (internal quotation marks omitted) ). Holmes engage in any illegal activity before stopping him; in other words, the officers were able to confirm no more ¶ 41 The dissent first insists that Holmes has invented a novel than a general description. See also Lopez, 2018 IL App (1st) theory on appeal because, instead of saying that the security 153331, ¶ 23, 425 Ill.Dec. 404, 112 N.E.3d 1069 (applying guard was an anonymous source, he argues on appeal that this principle from J.L.). it is possible that an unidentified third party served as the source of information. On close examination of the record and ¶ 37 The United States Supreme Court described its decision Holmes's briefs, before the trial court and before us, Holmes in Navarette as a “ ‘close case.’ ” 572 U.S. at 404-05, 134 has urged the same theories in form and in substance. In the

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000153 7 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 trial court and here, Holmes insists the tip from the security as a given that contradictory statements made by an attorney guard, while not anonymous in a literal sense, lacks reliability cannot form the basis of a binding concession, particularly in due to the absence of testimony about the ultimate source of a criminal case.”). information. ¶ 45 The dissent next places the burden on Holmes to show the ¶ 42 In the trial court, defense counsel argued that “we reliability of the tip, despite the trial court's decision to shift have to classify this source of information as anonymous” the burden to the State. The dissent repeatedly states, “once because “[w]e don't have anyone or somebody identifying the State identified the * * * source of the information, the themselves as the security guard” and nothing indicates when State's burden of production was satisfied.” Infra ¶ 67. It goes the security guard found out, whether Wilkerson met with the on to say, “All the State had to show in the trial court was guard, or how the guard conveyed information to Wilkerson. that the source of the tip was not anonymous,” and that “once Then, *1277 **259 in counsel's motion to reconsider the the State identified the security guard as the source of the denial of the suppression motion, counsel acknowledged that information” it was Holmes's burden to fill in any evidentiary the tip was not literally anonymous but argued that even gaps. Infra ¶¶ 70-71. This argument relies on a faulty premise, tips from known citizen informants must be determined by namely that the State had actually identified the security guard factors including whether the tip was relayed to the police as the source of the information. officer in person and whether the person providing the tip personally observed the illegal activity. Counsel then repeated ¶ 46 Here it is important to distinguish between two related, the arguments from the motion hearing, explaining that but distinct, sources of information. The dissent focuses on nothing is known about the nature of Wilkerson's interaction the source of Wilkerson's information and, contrary to its with the security guard. implication (infra ¶ 67), we never have disputed that Delgado could rely on what Wilkerson told him. Absent Wilkerson's ¶ 43 Holmes makes the same argument in his appellate testimony, however, we must take Delgado's testimony about briefs—the tip the police officers received was “effectively what Wilkerson did and did not tell him at face value. anonymous” because the State “offered no witness, police According to Delgado, Wilkerson did not relay important officer or otherwise, who knew where the tip had ultimately information such as how or when the security guard contacted originated.” him or whether the security guard said they personally observed the illegal activity. Delgado can rely on Wilkerson to ¶ 44 In a brief corollary to its point about things that Holmes relay information, but the information that Wilkerson himself has or has not argued, the dissent suggests that Holmes possessed must have been enough to establish reasonable conceded at oral argument that if the source of the information suspicion. See *1278 **260 United States v. Hensley, was the security guard, the police would have been justified 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) in their conduct. We presume that the dissent is referring to (“[W]hen evidence is uncovered during a search incident to counsel's statement: “If the tip originated with the security arrest in reliance merely on a flyer or bulletin, its admissibility guard, and wasn't just relayed by the security guard, then it turns on whether the officers who issued the flyer possessed wouldn't be an anonymous tip * * * and Mr. Holmes concedes, probable cause to make the arrest.” (Internal quotation marks that if the record established that, that would be sufficient omitted.) ). Wilkerson certainly knew that his source was the to establish reasonable suspicion.” (Emphases added.) We security guard, but that provides no safe harbor or justification do not in any way consider this a concession. Counsel for the stop. hypothetically addressed what would have been sufficient for a finding of a reliable tip—knowledge about the ultimate ¶ 47 Instead, we must concern ourselves with the security source of the information. Nowhere in counsel's statement, guard and his or her source of information. See People v. or in the surrounding argument, did counsel concede that the Lawson, 298 Ill. App. 3d 997, 1001, 233 Ill.Dec. 24, 700 record actually established that the tip originated with the N.E.2d 125 (1998). The application of this principle to this security guard. And, besides, an isolated statement contrary case is straightforward. Delgado was entitled to rely on to everything counsel said in the remainder of his argument Wilkerson, who was in turn entitled to rely on the security and in his briefs does not amount to a concession. See People guard, but only if the security guard him or herself had v. Colyar, 2013 IL 111835, ¶ 92, 374 Ill.Dec. 880, 996 N.E.2d sufficient information to justify the Terry stop. Notably, every 575 (Burke, J., dissenting, joined by Freeman, J.) (“I take it case that Lawson cites places the burden on the State to

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000154 8 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 provide that information. Id. at 1001-02, 233 Ill.Dec. 24, 700 that Wilkerson would have dawdled in his report of the tip N.E.2d 125 (collecting cases). So, the “lack of clarity in the (infra ¶ 74); we simply add this unknown to the long list transcript” and “lack of * * * evidence in the record” (infra ¶ that we already have, including our lack of knowledge about 67) is not only proper to consider, it is dispositive. when the tipster received or observed the information **261 *1279 that was the subject of the tip. In sum, we have no idea ¶ 48 Here, as we have discussed, we have no information how soon the officers encountered Holmes after the initial about whether the security guard personally observed the observation (by whomever it was made) of the reported illegal possession of the gun in the park or whether that information activity. was conveyed by someone else; in other words, we have no information to show that the security guard was actually the ¶ 53 The dissent also relies on A.V. to point out that none “source” of the tip. of the witnesses “had actually seen or told the police officer he had seen” the alleged illegal activity. Infra ¶ 75. It is not ¶ 49 We may know where Wilkerson got his information, just us who believe that personal observation by the purported but the identity of the ultimate source of the tip—which source is “critical to the analysis.” Infra ¶ 75. The United was undisputedly the State's burden to provide—remains a States Supreme Court has said that a tipster who “claimed mystery. The State decided to attempt to satisfy its burden eyewitness knowledge” provided “significant support to the by calling a witness two-steps removed from the purported tip's reliability.” Navarette, 572 U.S. at 399-400, 134 S.Ct. at “source.” According to the dissent's own interpretation of the 1689. Notably, Miller and A.V. were decided before Navarette. applicable burden in litigation of a suppression motion, the So far, the only Illinois case to rely on Navarette since it State has not satisfied theirs. was decided distinguished it because there were “no specific allegations as to what the tipster witnessed or had particular ¶ 50 Turning to the merits, the dissent relies on A.V., knowledge of.” Lopez, 2018 IL App (1st) 153331, ¶ 21, 425 336 Ill. App. 3d 140, 270 Ill.Dec. 536, 783 N.E.2d 111, Ill.Dec. 404, 112 N.E.3d 1069. We are confronted with a and, to a lesser extent, Miller, 355 Ill. App. 3d 898, 291 similar distinction—there is no information in this record to Ill.Dec. 830, 824 N.E.2d 1080. The dissent also attempts determine whether the tipster (the security guard) personally to distinguish J.L. and Lopez, purely on the basis that the observed the alleged illegality. informants were anonymous in the literal sense. We do not find this distinction persuasive because, as we already have ¶ 54 The dissent's reliance on In re J.J., 183 Ill. App. 3d discussed, the tip provided to Wilkerson was effectively 381, 132 Ill.Dec. 201, 539 N.E.2d 764 (1989), is unpersuasive anonymous. We similarly find each case that the dissent relies for similar reasons. First, J.J. is factually distinguishable. As on distinguishable. the dissent itself acknowledges, the security guard in J.J. did not personally observe the respondent's gun possession but ¶ 51 We have already distinguished Miller and A.V. (supra¶¶ was able to identify the person who had told him about it. 31-32), and we adhere to those distinctions. In Miller, the 183 Ill. App. 3d at 383, 132 Ill.Dec. 201, 539 N.E.2d 764. court could infer a short time from observation of the illegal Here we know nothing about the basis of the security guard's activity to detention because the officers only had to travel knowledge. Additionally, in J.J., how the security guard had one-eighth of a mile from where they received the tip to where reported the tip—via a call to the Elgin police department they found the defendant. 355 Ill. App. 3d at 903, 291 Ill.Dec. —was known. Id. Notably, the call itself was played for the 830, 824 N.E.2d 1080. The tip provided to officers in A.V. was court at the suppression hearing, allowing the court to directly corroborated by other individuals and confirmed “within one evaluate the purported tipster's credibility. Id. Again, we have minute” of the officers receiving the tip. 336 Ill. App. 3d at no information about the manner in which the report was 144, 270 Ill.Dec. 536, 783 N.E.2d 111. By contrast, no witness made to Sergeant Wilkerson and the security guard was not confirms the information originally given to Wilkerson. More called to testify; so, directly evaluating their credibility is not importantly, nothing indicates “how quickly” (infra ¶ 74) the possible. officers confirmed the tip. ¶ 55 Second, and more significantly, J.J.'s value as precedent ¶ 52 We know officers found Holmes about two minutes after has been drastically diminished by the passage of time and one of them spoke to Wilkerson, but we have no idea when intervening decisions from the United States Supreme Court. the tip was made to Wilkerson. We do not mean to imply J.J. was decided in 1989 and, as a result, could only rely

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000155 9 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 on Williams, 407 U.S. 143, 92 S.Ct. 1921 (see supra ¶ 22), as the leading case discussing Terry stops based on ¶ 61 PRESIDING JUSTICE MASON, dissenting: tips. See J.J., 183 Ill. App. 3d at 385-89, 132 Ill.Dec. 201, ¶ 62 The Illinois legislature has declared that certain public 539 N.E.2d 764 (discussing Williams extensively). In the places are sensitive locations where no citizen has a right to time between J.J. and this case, the Supreme Court decided carry a weapon. Among those locations are schools, churches, White, J.L., and Navarette, as we have discussed. Those hospitals, courthouses, and pertinent here, public parks. 720 cases provided more guidance, adding nuance to evaluating ILCS 5/24-1(a)(10), (c)(1.5) (West 2012); People v. Bell, the reliability of third-party tips. We need not go through 2018 IL App (1st) 153373, ¶¶ 29-30, 424 Ill.Dec. 328, 107 the particulars again, but we find that Lopez is the best N.E.3d 1047; see also 430 ILCS 66/65(a)(13) (West 2016). contemporary example in Illinois of proper application of the The havoc wreaked by individuals intent on bringing weapons Williams-White-J.L.-Navarette line of cases. into such locations is all too familiar, and tragically, the senseless killings that have occurred in recent memory are too ¶ 56 A final note about the dissent's citation to J.J. We do numerous to list. See, e.g., Jeremy Gorner, Gunman in Mercy not disagree with the proposition that we are to review the Hospital Shooting Fired About 40 Shots Before Dying in facts before us from the perspective of a reasonable officer Shootout With SWAT Officer, Chi. Trib. (Nov. 21, 2018, 8:15 at the time he or she was required to act. But, we are not p.m.), https://www.chicagotribune.com/news/local/breaking/ confronted with an unreasonable response to known facts; ct-met-chicago-mercy-hospital-shooting-details-20181121- we are confronted with the complete absence of facts. We story.html [https://perma.cc/AF55-AMJB]; Campbell cannot confirm the reliability of the tip the officers received Robertson, Christopher Mele & Sabrina Tavernise, because there is too much that we do not know about it. We do 11 Killed in Synagogue Massacre; Suspect not reverse Holmes's conviction as a criticism of the officers. Charged With 29 Counts, N.Y. Times (Oct. We reverse because the State failed to meet its burden to 27, 2018), https://www.nytimes.com/2018/10/27/us/ identify the source of the tip—despite its repeated claims that active-shooter-pittsburgh-synagogue-shooting.html [https:// the security **262 *1280 guard, who could confirm the perma.cc/5X99-5RG6]; Elizabeth Chuck, Alex Johnson & source, would be easy to find—rendering the tip's reliability Corky Siemaszko, 17 Killed in Mass Shooting at High irrecoverably suspect. School in Parkland, Florida, NBC News (Feb. 14, 2018, 2:18 p.m.), https://www.nbcnews.com/news/us-news/police- respond-shooting-parkland-florida-high-school-n848101 ¶ 57 Conclusion [https://perma.cc/5REN-QDMR]. Although our supreme court, following the lead of the United States Supreme ¶ 58 We find that Holmes's seizure was unlawful, having been Court, has declared unconstitutional sweeping restrictions based on a factually insufficient and unreliable tip. As we upon an individual's right to carry firearms in public (People find insufficient facts to justify Holmes's detention, we need v. Chairez, 2018 IL 121417, 423 Ill.Dec. 69, 104 N.E.3d not consider whether the subsequent frisk was independently 1158; People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, justified. See Thomas, 198 Ill. 2d at 109, 259 Ill.Dec. 838, 759 2 N.E.3d 321), no court has ever questioned a state's ability N.E.2d 899. to prohibit completely the possession of firearms within designated sensitive areas even by individuals possessing ¶ 59 We reverse the trial court's denial of Holmes's motion valid FOID cards or concealed carry licenses. to suppress evidence. Because the State will be unable to proceed without evidence of the gun on remand, we reverse ¶ 63 On August 12, 2012, during the Annual Grand Picnic in Holmes's conviction outright. See Lopez, 2018 IL App (1st) Brainerd Park where 1200 people, including children, were 153331, ¶ 38, 425 Ill.Dec. 404, 112 N.E.3d 1069. present, Holmes decided to bring a weapon into the park, conduct that no citizen has a right to engage in and that the ¶ 60 Reversed. second amendment does not protect. See Chairez, 2018 IL 121417, ¶ 62, 423 Ill.Dec. 69, 104 N.E.3d 1158 (discussing the difference between possessing a gun “in” and “around” Justice Pucinski concurred in the judgment and opinion. sensitive places); People v. Green, 2018 IL App (1st) 143874, ¶ 23, 428 Ill.Dec. 137, 121 N.E.3d 911 (same). *1281 Presiding Justice Mason dissented, with opinion. **263 Within two minutes of receiving information from

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000156 10 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 a security guard that a man matching Holmes's description Terry, 392 U.S. at 27, 88 S.Ct. 1868; Colyar, 2013 IL 111835, was seen with a gun in his pocket, police, acting swiftly ¶¶ 36-37, 374 Ill.Dec. 880, 996 N.E.2d 575. and responsibly, located Holmes, patted his front pocket, and retrieved the gun. The majority concludes the trial court ¶ 65 On a motion to suppress evidence, the defendant bears should have suppressed that evidence because police did the burden of proof and must establish a prima facie case not have a reasonable, articulable suspicion that Holmes that the evidence was obtained from an unlawful search was engaging or about to engage in criminal activity when or seizure. 725 ILCS 5/114-12(b) (West 2012); People v. they conducted a Terry stop (Terry v. Ohio, 392 U.S. 1, 88 Brooks, 2017 IL 121413, ¶ 22, 422 Ill.Dec. 850, 104 N.E.3d S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). But the legislature 417. In other words, the defendant bears the burden of has declared that Holmes's very presence in the park while establishing the factual and legal bases for the motion to armed was a crime. 720 ILCS 5/24-1(a)(10), (c)(1.5) (West suppress. Brooks, 2017 IL 121413, ¶ 22, 422 Ill.Dec. 850, 104 2012). And, beyond that, the State provided ample evidence N.E.3d 417. And where the defendant asserts an illegal search to justify the minimally intrusive search given the quantum occurred, the defendant must establish both that there was a of information police possessed. Because the majority's search and that it was illegal. Id. If the defendant meets that rationale is legally unsound and, if accepted, poses an initial burden, the burden then shifts to the State to produce incalculable threat to public safety, I respectfully dissent. evidence justifying the intrusion. 725 ILCS 5/114-12(b) (West 2012); *1282 **264 Brooks, 2017 IL 121413, ¶ 22, 422 ¶ 64 The touchstone of any fourth amendment analysis is Ill.Dec. 850, 104 N.E.3d 417. Once the State has introduced reasonableness. The fourth amendment guarantees the “right evidence supporting the existence of a reasonable, articulable of the people to be secure in their persons, houses, papers, suspicion justifying the warrantless stop, the State's burden and effects, against unreasonable searches and seizures, * of production is satisfied and the burden then returns to the * * and no Warrants shall issue, but upon probable cause, defendant who must ultimately persuade the court that the supported by Oath or affirmation, and particularly describing search was unreasonable. Brooks, 2017 IL 121413, ¶ 22, 422 the place to be searched, and the persons or things to be Ill.Dec. 850, 104 N.E.3d 417. Holmes failed in that burden. seized.” U.S. Const., amend. IV. Illinois courts interpret the search and seizure clause of the Illinois Constitution ¶ 66 Holmes filed his motion to suppress alleging that police in conformity with the Supreme Court's interpretation of conducted a warrantless search of his person. Given that the fourth amendment. People v. Burns, 2016 IL 118973, ¶ it was undisputed that police acted without a warrant, that 19, 401 Ill.Dec. 468, 50 N.E.3d 610; People v. Fitzpatrick, claim shifted to the State the burden of producing evidence 2013 IL 113449, ¶ 15, 369 Ill.Dec. 527, 986 N.E.2d 1163; demonstrating why the police stopped and frisked Holmes. People v. Caballes, 221 Ill. 2d 282, 316, 303 Ill.Dec. 128, The State satisfied that burden through Delgado's testimony. 851 N.E.2d 26 (2006); People v. Lampitok, 207 Ill. 2d 231, After receiving the information from Wilkerson relaying the 240-41, 278 Ill.Dec. 244, 798 N.E.2d 91 (2003); see Ill. Const. description of a man in the park with a gun, Delgado and 1970, art. I, § 6 (“The people shall have the right to be Montes walked through the park and within minutes while secure in their persons, houses, papers and other possessions still within the park, they saw Holmes, who matched the against unreasonable searches, seizures, invasions of privacy description. While Montes asked Holmes if they could ask or interceptions of communications by eavesdropping devices him a few questions, Delgado touched the outside of Holmes' or other means. No warrant shall issue without probable jeans pocket, and immediately felt the trigger and trigger cause, supported by affidavit particularly describing the place guard of a handgun. Holmes was ordered to the ground, to be searched and the persons or things to be seized.”). The Montes handcuffed him, and Delgado recovered the revolver underlying purpose of the fourth amendment is to impose from his pocket. The encounter lasted less than a minute. a reasonableness standard on a police officer's exercise of discretion to safeguard the privacy and security of individuals ¶ 67 Wilkerson's knowledge as a result of his conversation against arbitrary invasions. People v. Colyar, 2013 IL 111835, with the security guard was imputed to Delgado even ¶ 31, 374 Ill.Dec. 880, 996 N.E.2d 575. Ultimately, when if Wilkerson never told Delgado where and when the assessing the reasonableness of an officer's conduct, due conversation took place or whether the security guard weight is given to reasonable inferences that the officer reported actually seeing the gun. See People v. Stroud, 392 is permitted to draw from the facts in light of his or her Ill. App. 3d 776, 805, 331 Ill.Dec. 922, 911 N.E.2d 1152 experience, and each case must be decided on its own facts. (2009). Thus, the majority's reliance on any lack of clarity

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000157 11 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 in the transcript on this point is misplaced. The State had a information to a police officer about a described individual burden of production, not the burden of persuasion, which in a public park with a gun, is that enough to give rise to remained at all times with Holmes. In re D.L., 2017 IL App a reasonable, articulable suspicion warranting a Terry stop (1st) 171764, ¶ 16, 2017 WL 8132159; People v. Mott, 389 Ill. of an individual matching that description. See In re J.J., App. 3d 539, 542, 329 Ill.Dec. 314, 906 N.E.2d 159 (2009); 183 Ill. App. 3d 381, 388, 132 Ill.Dec. 201, 539 N.E.2d 764 People v. Gaines, 220 Ill. App. 3d 310, 321, 163 Ill.Dec. 263, (1989) (police officer's stop of minor based on information 581 N.E.2d 214 (1991). And once the State identified the communicated to officer by restaurant security guard who, nonanonymous source of the information, the State's burden in turn, had been told by a patron about an individual in of production was satisfied. Moreover, because Holmes never the restaurant with a gun did not violate fourth amendment; argued, much less adduced evidence, that the information noting that “immediate action” was required, court stated, relayed by the security guard was stale or that Wilkerson “We do not view these facts with analytical hindsight but delayed contacting Delgado and Montes after speaking to instead consider them from the perspective of a reasonable the security guard, the majority's focus on the lack of this officer at the time the situation confronted him.”). evidence in the record is also misguided. ¶ 71 All the “unknowns” (supra ¶¶ 18, 37) identified by ¶ 68 An eminently experienced and respected trial judge the majority (e.g., the name or a physical description of the concluded that Holmes failed to sustain his burden to security guard, how the information was conveyed, etc.) were demonstrate that police acted unreasonably in stopping him part of Holmes's burden once the State identified the security to determine whether, as reported, he had a gun in his pocket. guard as the source of the information. And Holmes made The trial court properly rejected Holmes's arguments, which no effort to persuade the trial court that, notwithstanding focused on whether the unnamed security guard was an the identification of the source, the tip was nevertheless anonymous source, a contention that, as a matter of law, is unreliable because (1) the security guard did not actually see without merit. Indeed, during oral argument here, Holmes's Holmes with the gun, (2) Wilkerson may not have received counsel conceded that if the source of the information was the information from the security guard (or someone posing the security guard, the police would have been justified in as a security guard) in person, or (3) some third party, who conducting the Terry stop. The majority refuses to accept may or may not have had firsthand information, actually told this concession, but we should honor it because, as discussed the security guard about Holmes. If Holmes meant to contest below, it comports with the law. the State's identification of the source of the information or the manner in which the information was conveyed, ¶ 69 The majority relies on Florida v. J.L., 529 U.S. 266, nothing prevented him from subpoenaing Wilkerson to testify 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), finding at the suppression hearing or from ascertaining the name that the tip received here was unreliable because the officers of the security firm hired by the Chicago Park District did not personally observe Holmes with a gun and it was and investigating which of its employees conveyed the unknown whether the ultimate source of the tip observed information. The party with the ultimate burden of persuasion Holmes with a gun while in the park or if the tip was cannot satisfy that burden by substituting speculation for communicated in person to *1283 **265 Wilkerson. J.L. evidence. Brooks, 2017 IL 121413, ¶ 22, 422 Ill.Dec. 850, is not on point. Unlike the unknown and unaccountable tipster 104 N.E.3d 417; 725 ILCS 5/114-12(b) (West 2012) (the in J.L., the security guard here was capable of identification defendant bears the burden of proving that the search and and the tip was communicated to Wilkerson by the guard, who seizure were illegal and must provide the judge with evidence was working within the park. Indeed, the security guard here on any issue of fact needed to decide the motion to suppress). was not merely a “concerned citizen”; he was an identifiable The majority simply misapprehends both the nature of the individual whose presence in the park was specifically to State's burden of production and Holmes's ultimate burden of ensure the safety of the event. Accordingly, information from persuasion when it relies on these unknowns to reverse. that source about a threat to security is particularly reliable. ¶ 72 I also do not agree with the majority that People v. ¶ 70 All the State had to show in the trial court was that Lopez, 2018 IL App (1st) 153331, 425 Ill.Dec. 404, 112 the source of the tip was not anonymous. And plainly the N.E.3d 1069, is dispositive. This court found the tip in Lopez State sustained it burden. The only issue Holmes asked the insufficient to establish the required reliability because the trial court to decide was whether, if a security guard conveys tipster informed the police about “ ‘a DUI driver’ ” but

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000158 12 People v. Holmes, 2019 IL App (1st) 160987 (2019) 125 N.E.3d 1268, 430 Ill.Dec. 250 did not provide any additional information supporting the the crowded park with a gun (supra ¶ 52) is contrary to reason conclusion that the defendant was driving erratically. Lopez, and common experience. 2018 IL App (1st) 153331, ¶ 21, 425 Ill.Dec. 404, 112 N.E.3d 1069. Unlike Lopez, the security guard here communicated ¶ 75 Importantly, the result in A.V. did not turn on whether additional information by describing Holmes and specifying the unnamed individual had actually seen or told the police **266 *1284 that he had the gun in his pocket. And as officer he had seen the “kid” with the gun, a circumstance noted, because the security guard communicated the tip to the majority believes is critical to the analysis. And in none Wilkerson and the guard's identity could be determined, the of the cases relied on by the majority was the prosecution tip here was not anonymous. required to call the ultimate source of the tip to establish personal knowledge of the reported conduct. As long as the tip ¶ 73 The facts of this case closely resemble those in In re is not anonymous, the State has no burden to call the source A.V., 336 Ill. App. 3d 140, 141, 270 Ill.Dec. 536, 783 N.E.2d of the tip because the standard on the motion to suppress 111 (2002), where an unnamed individual approached a police is reasonable suspicion and a nonanonymous tip reporting vehicle patrolling a park and told the officer that “ ‘a kid’ criminal conduct is sufficient to give rise to a reasonable ” was “ ‘showing off’ a gun.” The individual described the suspicion. See J.J., 183 Ill. App. 3d at 388, 132 Ill.Dec. 201, “kid” and directed the officer to his location. Id. As the 539 N.E.2d 764 (“[T]he fourth amendment does not require officer drove in that direction, other unnamed individuals a police officer who lacks the precise level of information also reported the same information. Id. Within one minute, necessary for probable cause to arrest to simply shrug his the officer located the individual in the park. Id. at 144, shoulders and allow a crime to occur or a criminal to escape.” 270 Ill.Dec. 536, 783 N.E.2d 111. The investigatory stop (citing Williams v. Adams, 407 U.S. 143, 145, 92 S.Ct. 1921, was found lawful because the individuals conveyed the tip 32 L.Ed.2d 612 (1972) ) ). in person, and even though their names were unknown, the individuals could be identified and held accountable if they ¶ 76 On appeal, Holmes advances an entirely new theory provided false information. Id. at 144, 270 Ill.Dec. 536, 783 regarding the source of the information. Instead of assuming N.E.2d 111. that the security guard was the “anonymous” source—the position he took in the *1285 **267 trial court—he now ¶ 74 Here, although the security guard's name was not known, posits that perhaps an unidentified third party, in person, by his identity was traceable (indeed, more so than the concerned telephone (How would that person obtain the security guard's citizens in A.V.) and he too could have been held accountable cell phone number?), or shouting out the window of a car for conveying false information. See J.J., 183 Ill. App. 3d while driving by, told the security guard that a described at 387, 132 Ill.Dec. 201, 539 N.E.2d 764 (investigatory stop individual was in the park with a gun in his pocket and that the based on information relayed to police officers from a security security guard (or an imposter posing as a “security guard”) guard who received an in-person citizen tip of someone called Wilkerson (Again, how would the security guard, much with a gun was reasonable). Moreover, Delgado and Montes less an imposter posing as one obtain a police sergeant's cell encountered Holmes while he was still within the park and phone number?) and relayed the information. Based on this only minutes after receiving the information from Wilkerson. speculative scenario, which is decidedly different than the Given the urgent nature of the tip—a man with a gun in theory Holmes advanced in the trial court, Holmes now argues a crowded public park—combined with how quickly the that because the record does not rule out all possible sources officers located Holmes in the park, the circumstances dictate of the information police used to stop him, the State did not that a short period of time had elapsed from the time the tip succeed in disestablishing the anonymity of the tipster or was communicated to Wilkerson and Holmes's detention. See establishing the reasonable, articulable suspicion necessary to also Miller, 355 Ill. App. 3d at 903-04, 291 Ill.Dec. 830, 824 justify the Terry stop. N.E.2d 1080 (tip found reliable because the informant would have remained near the scene and his or her identity could ¶ 77 There are two reasons—either equally sufficient—why have been traced). The possibility the majority indulges in we should refuse to consider this argument. First, and most favor of Holmes, the party bearing the burden of persuasion, obviously, a defendant who has litigated and lost a motion that Wilkerson may have acted less then instantaneously upon to suppress in the trial court based on one theory cannot be receiving information from a security guard about a man in permitted to raise a new theory on appeal. See People v. Hughes, 2015 IL 117242, ¶ 46, 410 Ill.Dec. 246, 69 N.E.3d

791 (a defendant is prohibited from raising new theories on we must assume if an unnamed hospital or school security appeal because the State would be deprived of the opportunity guard or a church congregant reports to police the presence of to challenge the claims with evidence of its own). a described individual with a concealed weapon inside those buildings, police are, without more, powerless to locate, stop, ¶ 78 Second, Holmes's new theory overlooks the fact, as and frisk that person. According to the majority, the police discussed above, that even had he raised it in the trial court, must (i) first take the time to ascertain whether the person the evidence adduced at the suppression hearing regarding the reporting the information actually saw the weapon and (ii) if source of the information would have remained sufficient to not, determine how the person came to learn that information satisfy the State's burden of production. In other words, once and, in those precious seconds, hope that the possessor of the State presented evidence identifying the source of the tip the firearm does not begin shooting. Under the facts of this as emanating from an ascertainable and traceable person—the case, those options are neither viable nor legally required. The security guard—the burden would have returned to Holmes majority does not cite any authority that required the police to adduce evidence that, in fact, there was a different source officers here to disregard a reasonable belief that the safety of of the information. the park occupants was in imminent danger.

¶ 79 The most concerning aspect of the majority's rationale is ¶ 80 I cannot adhere to the majority's view of the law. Far from that it is not limited to public parks. If the quantum of evidence the “all's well that ends well” label that the majority attaches to my rationale for affirming, the police conduct here was law enforcement possessed here to conduct a Terry stop of not only legally justified, it was imperative. an individual reported to be carrying a weapon in a public *1286 **268 I would affirm Holmes's conviction. park is deemed insufficient, the same result must obtain in all sensitive locations because the statutory prohibition does not distinguish among them. See 720 ILCS 5/24-1(c)(1.5) (West All Citations 2012) (an individual is prohibited from possessing a weapon “in any school * * * in a public park, in a courthouse”) So 2019 IL App (1st) 160987, 125 N.E.3d 1268, 430 Ill.Dec. 250

UNITED STATES of America, Plaintiff-Appellee, v. Evelyn JOHNSON, Defendant- Appellant. No. 18-1313 United States Court of Appeals, Seventh Circuit. Argued October 31, 2018 Decided December 21, 2018 Rehearing and Rehearing En Banc Denied January 17, 2019 Background: Following entry of guilty plea, defendant was convicted in the Unit- ed States District Court for the Southern District of Illinois, No. 15-CR-30152-NJR- 01, Nancy J. Rosenstengel, J., of fraud and false statements via aid and assistance, arising from defendant’s preparation of false tax returns for clients, and was sentenced to 18 months’ imprisonment, one year of supervised release, and ordered to pay $79,325 in restitution, which was the amount that defendant’s clients had avoided paying in taxes via crimes for which defendant was convicted. Defendant appealed. Holdings: The Court of Appeals, Easter- brook, Circuit Judge, held that: (1) defendant failed to show that prosecution should have disclosed how much more it might collect from clients for purposes of calculating restitution; (2) it was unnecessary for government to inform the trial court of amount it would collect from taxpayers for purposes of restitution given that defendant would be credited for that amount; (3) defendant’s signing of waiver of her right to have conditions of supervised release read aloud before sentencing was not a due process violation; and

000161 850 911 FEDERAL REPORTER, 3d SERIES

(4) conditions of supervised release con- court at sentencing to determine base res- tested by defendant were not vague. titution award, as defendant contended; Affirmed. based on restitution statute, the government was entitled to only single recovery in form of collection of taxes owed and 1. Criminal Law O1995 restitution for unrecoverable amount. 18 Defendant convicted of fraud and false U.S.C.A. § 3664. statements via aid and assistance, based on preparation of false tax returns, failed to 4. Constitutional Law O4735 show that the prosecution should have dis- Sentencing and Punishment O1918 closed how much more it might collect Defendant’s signing of waiver of her from her clients, which could have affected right to have conditions of supervised re- calculation of restitution owed by defen- lease read aloud before sentencing, in ac- dant, as opposed to order that defendant tion wherein defendant pleaded guilty and pay amount that defendant’s clients unlaw- was convicted of fraud and false state- fully avoided paying that had not been ments via aid and assistance, arising from collected from taxpayers before sentenc- defendant’s preparation of false tax re- ing; although defendant asserted that turns for clients, did not violate the Due amount received from taxpayers was ex- Process Clause of the Fifth Amendment; culpatory material that should have been proposed terms and conditions of super- revealed under Brady, presentence report vised release were included in presentence showed that government had collected sub- report, which defendant had seen, court stantial sums and was trying to obtain offered defendant choice of having condi- remainder owed, and defendant was free tions read aloud as part of sentencing or to to ask how much more had been collected forego that right, defendant freely chose to by date of sentencing. 26 U.S.C.A. forego it, and the trial court did not say or § 7206(2). imply that defendant would suffer in any 2. Criminal Law O1995 way if she demanded that length condi- Brady, which requires exculpatory tions be read verbatim at sentencing. material to be revealed, does not apply U.S. Const. Amend. 5. when information is available for the ask- 5. Sentencing and Punishment ing. O1967(3) 3. Sentencing and Punishment O2175, Condition of supervised release for de- 2180 fendant convicted of fraud and false state- Defendant convicted of fraud and false ments via aid and assistance, based on statements via aid and assistance, based on preparation of false tax returns, stating preparation of false tax returns, would re- that defendant could not knowingly leave ceive credit against restitution award that judicial district without permission of the she was ordered to pay, constituting court or probation officer was not vague, amount that defendant’s clients unlawfully as defendant contended, where ‘‘judicial avoided paying that had not been collected district’’ was a statutory term, anyone from taxpayers before sentencing, for could look up the boundaries of the dis- whatever the government subsequently trict, presentence report listed all counties collected from taxpayers, and thus it was in the district, and the word ‘‘knowingly’’ unnecessary for prosecution to disclose de- indicated that if defendant accidentally tails of collection activities before the trial strayed outside of district, she would not

000162 U.S. v. JOHNSON 851 Cite as 911 F.3d 849 (7th Cir. 2018)

have violated condition. 28 U.S.C.A. No. 15-CR-30152-NJR-01 — Nancy J. Ro- § 93(c). senstengel, Judge.

6. Sentencing and Punishment Norman R. Smith, Attorney, Office of O1969(3) the United States Attorney, Criminal Divi- Condition of supervised release for de- sion, Fairview Heights, IL, for Plaintiff- fendant convicted of fraud and false state- Appellee. ments via aid and assistance, based on Daniel J. Hillis, Attorney, Office of the preparation of false tax returns, stating Federal Public Defender, Springfield, IL, that defendant was required to respond to Thomas W. Patton, Attorney, Office of the all inquiries of probation officer and follow Federal Public Defender, Peoria, IL, for all reasonable instructions of probation of- Defendant-Appellant. ficer was not vague, as defendant contended, where requirement of response to pro- Before FLAUM, EASTERBROOK, and bation officer inquiries came directly from BRENNAN, Circuit Judges. a statute, and the Court of Appeals would decline to declare that the word ‘‘reason- EASTERBROOK, Circuit Judge. able’’ needed to be removed from all condi- After pleading guilty to preparing false tions of supervised release, given its ubiq- tax returns for her clients, 26 U.S.C. uitous use in statutes, regulations, and § 7206(2), Evelyn Johnson was sentenced conditions of supervised release so as to to 18 months in prison, to be followed by prevent petty bureaucratic demands. 18 one year’s supervised release. The judg- U.S.C.A. § 3563(b)(17). ment includes $79,325 in restitution—the 7. Administrative Law and Procedure amount that Johnson’s clients unlawfully O1241 avoided paying (with respect to the counts Statutes O1132 of conviction) that had not been collected The word ‘‘reasonable’’ is not a prote- from the taxpayers before sentencing. an word that resists specification; it is Johnson does not contest her convictions ubiquitous in statutes and regulations, de- or the length of her sentences. But she signed for the protection of people who says that the prosecution should have told otherwise would be beset by petty bureau- the judge how much more it might collect cratic demands. from her clients, which could affect how much she owes in restitution. 8. Constitutional Law O1160 Criminal Law O990.1 [1, 2] Johnson contends that the amount received from the taxpayers is ex- Sentencing and Punishment O1963 culpatory material that should have been The word ‘‘reasonable’’ in statutes and revealed under Brady v. Maryland, 373 regulations is permissible even in situa- U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 tions governed by the First Amendment, (1963). Yet the collections were not con- indicating its permissibility in a criminal cealed. The presentence report showed the judgment context, such as part of a condi- court and Johnson that the United States tion of supervised release. U.S. Const. already had collected substantial sums (the Amend. 1. original loss figure exceeded $150,000) and was trying to obtain from taxpayers the Appeal from the United States District rest of what they should have paid in the Court for the Southern District of Illinois. first place. Johnson was free to ask how

000163 852 911 FEDERAL REPORTER, 3d SERIES much more had been collected by the date The United States’ interpretation would of sentencing but did not do so. Brady bring § 3664(f)(1)(B) into conflict with does not apply when information is avail- § 3664(j), which does deal with credits for able for the asking. See, e.g., United third-party collections: States v. Morris, 80 F.3d 1151, 1170 (7th (1) If a victim has received compensation Cir. 1996); United States v. Wilson, 901 from insurance or any other source with F.2d 378, 380 (4th Cir. 1990). respect to a loss, the court shall order [3] The restitution statute, not the that restitution be paid to the person Constitution, determines the prosecution’s who provided or is obligated to provide duty—and the duty is one of credit against the compensation, but the restitution or- the judgment, not of disclosure during the der shall provide that all restitution of sentencing hearing. The $79,325 figure re- victims required by the order be paid to flects taxes still outstanding because of the victims before any restitution is paid Johnson’s fraud. But the parties disagree to such a provider of compensation. about whether tax collections are credited (2) Any amount paid to a victim under against that award. an order of restitution shall be reduced The United States contends that 18 by any amount later recovered as com- U.S.C. § 3664(f)(1)(B) entitles it to collect pensatory damages for the same loss by the full $79,325 from Johnson and to keep the victim in— whatever it receives from the taxpayers— (A) any Federal civil proceeding; and and this despite the norm against double (B) any State civil proceeding, to the recovery. See Paroline v. United States, extent provided by the law of the 572 U.S. 434, 134 S.Ct. 1710, 188 L.Ed.2d State. 714 (2014); Restatement (Second) of Torts § 885(3) (1979). If collections from taxpay- Section 3664(j)(1) completes the picture ers don’t affect the restitution obligation, with respect to insurance and similar pay- there’s no need to disclose the collections ments: these do not reduce the amount of to Johnson, let alone credit them against the restitution award (per § 3664(f)(1)(B)), the award. But that’s not what and the wrongdoer must reimburse the § 3664(f)(1)(B) says. It provides: source of those benefits. Section 3664(j)(2) In no case shall the fact that a victim covers ‘‘compensatory damages’’, which re- has received or is entitled to receive duce the amount the wrongdoer pays in compensation with respect to a loss from restitution. This is the standard joint-and- insurance or any other source be consid- several-liability approach of tort law, which ered in determining the amount of resti- applies to collections under § 3664 too. tution. Victims get just a single recovery. And This is a statutory version of the collateral- since Johnson will receive credit against source doctrine, familiar in tort law. See the restitution award for whatever the Restatement (Second) of Torts § 920A(2). United States collects from the taxpayers, It deals with setting the base amount of it was unnecessary to disclose the details restitution, United States v. Malone, 747 of collection activities before the district F.3d 481, 488 (7th Cir. 2014), not with how judge determined the base restitution collections from joint wrongdoers are cred- award. ited. (The taxpayers are culpable for sign- Perhaps one could doubt that the collec- ing and filing the false returns that John- tion of back taxes counts as ‘‘compensatory son prepared.) damages’’ under § 3664(j)(2), but neither

000164 U.S. v. JOHNSON 853 Cite as 911 F.3d 849 (7th Cir. 2018)

party to this appeal has taken issue with read verbatim at sentencing. Having made cases holding that tax collections must be a free choice, she is bound by her decision credited against restitution awards in and cannot now complain that the court criminal prosecutions. Indeed, courts see did not read these conditions aloud. this as such an easy question that they In addition to waiving the reading of have treated the issue in non-precedential these conditions, Johnson also elected not decisions. See United States v. Smith, 398 to contest the substance of any. On appeal, Fed. App’x 938, 941–42 (4th Cir. 2010); however, she objects to five of them. Her United States v. Holland, 141 Fed. App’x failure to raise any of these objections in 589, 591 (9th Cir. 2005); United States v. the district court limits our review to plain Kerekes, 2012 WL 3526608 at *3–4, 2012 error. United States v. Poulin, 809 F.3d U.S. Dist. LEXIS 115280 at *12 (S.D. N.Y. 924, 930 (7th Cir. 2016); Bloch, 825 F.3d at Aug. 15, 2012); Rozin v. CIR, T.C. Memo 869. And we don’t see any error, let alone 2017-52 (Mar. 29, 2017). Two courts of plain error. We give just two examples. appeals have come to the same result with- [5] One contested condition reads: out discussing § 3664(j)(2). See United ‘‘The defendant shall not knowingly leave States v. Tucker, 217 F.3d 960, 962 (8th the judicial district without the permission Cir. 2000); United States v. Helmsley, 941 of the Court or the probation officer.’’ F.2d 71, 102 (2d Cir. 1991). And it does not Johnson calls this vague, but it isn’t. ‘‘Judi- seem to us a stretch to apply the label cial district’’ is a statutory term. Anyone ‘‘damages’’ to collections of taxes wrongly can look up the boundaries of this district, unpaid as a result of criminal fraud. see 28 U.S.C. § 93(c), and a person unable [4] All remaining issues concern the or unwilling to do that could look at the terms of Johnson’s supervised release. Be- presentence report, which lists all counties fore sentencing she signed a waiver of her in the district. What’s more, the word right to have these conditions read aloud, ‘‘knowingly’’ in this condition cures any and she now contends that this violated potential vagueness. See Screws v. United the Due Process Clause of the Fifth States, 325 U.S. 91, 102, 65 S.Ct. 1031, 89 Amendment. But why? The proposed L.Ed. 1495 (1945). If Johnson strays out- terms and conditions were included in the side the district by accident, she has not presentence report, which Johnson had violated this condition. seen. The court offered her a choice: Have Instead of dealing directly with the lan- these conditions read aloud as part of the guage of this condition, Johnson relies on sentencing or forego this right. She chose United States v. Ortiz, 817 F.3d 553, 555 to forego it, deeming the writing adequate. (7th Cir. 2016), which found excessive We’ve recommended that district judges vagueness in a condition requiring the de- give defendants this very choice. See, e.g., fendant to remain ‘‘within the jurisdiction’’ United States v. Bloch, 825 F.3d 862, 872 where he was being supervised. ‘‘The juris- (7th Cir. 2016). Defendants are entitled to diction’’ does not have a statutory defini- waive their rights and do so routinely as tion. It could mean anything from the city part of guilty pleas or stipulations. John- in which the probation office is located to son does not point to anything that made the judicial district to the limits of the this waiver involuntary. The court did not court’s subpoena power (generally the dis- say or imply that Johnson would suffer in trict plus 100 miles) to the boundaries of any way (other than boredom) if she de- the Seventh Circuit (Illinois, Indiana, and manded that the lengthy conditions be Wisconsin) to the United States as a

000165 854 911 FEDERAL REPORTER, 3d SERIES whole. Ortiz insisted that district judges searches), so that probation officers could give better notice. The reference to ‘‘the not intrude without justification into per- judicial district’’ was the result; it supplies sonal lives. Having deemed the word ‘‘rea- the degree of specificity missing from ‘‘the sonable’’ the solution to a problem in Kap- jurisdiction’’; adding ‘‘knowingly’’ makes pes, we are hardly going to declare now things doubly safe for defendants. The lan- that the word must be removed from all guage in Johnson’s case is exactly the sort conditions of supervised release. of condition we have been urging district Johnson’s remaining objections do not courts to employ. require separate discussion. [6–8] Another contested condition AFFIRMED reads: ‘‘The defendant shall respond to all inquiries of the probation officer and follow all reasonable instructions of the probation officer.’’ The first part of this condition , comes straight from a statute, 18 U.S.C. § 3563(b)(17), but Johnson asserts that the word ‘‘reasonable’’ makes the second part excessively vague. We do not see how. ‘‘Reasonable’’ is one of those protean SUGARLOAF FUND, LLC, words that resists specification. It is ubiq- Petitioner-Appellant, uitous in statutes and regulations, de- v. signed for the protection of people who otherwise would be beset by petty bureau- COMMISSIONER OF INTERNAL cratic demands. Thomas v. Chicago Park REVENUE, Respondent- District, 534 U.S. 316, 324, 122 S.Ct. 775, Appellee. 151 L.Ed.2d 783 (2002), holds that this No. 18-1046 word is permissible even in situations governed by the First Amendment; it is cer- United States Court of Appeals, tainly permissible in a criminal judgment. Seventh Circuit.

Would Johnson think herself better off if Argued September 28, 2018 the word were deleted and she were obliged to do whatever the probation offi- Decided December 21, 2018 cer said, however silly or obnoxious that Background: In consolidated action, rep- command might be? Does she want to face resentative of partnership’s tax matters revocation of supervised release for failing partner petitioned for review of IRS’s final to stand on her head when commanded to partnership administrative adjustment do so, or hoot like an owl in a restaurant? (FPAA) determinations that partnership Johnson likely wants an elaborate defini- was sham, that partnership could not claim tion, rather than deletion of this protec- cost-of-goods-sold expense partnership re- tion, but the history of tort law shows that ported when it sold its interest in limited any effort to define ‘‘reasonable’’ is a fool’s liability companies (LLCs) and associated errand. In United States v. Kappes, 782 uncollectible receivables to taxpayers, that F.3d 828, 860–62 (7th Cir. 2015), we recom- there was unreported income, and that mended that district judges add the word certain business expense deductions were ‘‘reasonable’’ to another condition (the one not permitted. The United States Tax requiring defendants to submit to Court, Wherry, J., 143 T.C. 322, entered

000166 U.S. v. MOODY 425 Cite as 915 F.3d 425 (7th Cir. 2019) federal statutes is insufficient to create automatically receive reimbursement for subject-matter jurisdiction). This is partic- the expense of defending that award on ularly so because, as the district court ob- appeal.’’ MB Fin., N.A. v. Stevens, 678 served, DuSablon cited no cases support- F.3d 497, 500 (7th Cir. 2012). JCB is there- ing his position nor attempted to apply fore ‘‘entitled to an award of ‘legal fees for controlling law, namely Grable & Sons the cost of work reasonably performed in Metal Prods., Inc. v. Darue Eng’r & Mfg., defense of the district court’s decision.’ ’’ 545 U.S. 308, 314–15, 125 S.Ct. 2363, 162 PNC Bank, 763 F.3d at 655 (quoting M.B. L.Ed.2d 257 (2005) (invoking federal juris- Fin., 678 F.3d at 500). JCB has fourteen diction over state law claim to quiet title days from the date of this decision to to property seized by federal government submit a statement of fees. DuSablon will where the validity of the seizure was ‘‘the have fourteen days to respond. only legal or factual issue[ ] in the case’’). Other considerations support the district III. Conclusion court’s exercise of discretion. The first is We DISMISS the appeal of the district the court’s finding that ‘‘DuSablon’s con- court’s remand order and AFFIRM its duct in defending the motion to remand’’ award of costs and fees. suggested that ‘‘removal was undertaken at least in part to delay a resolution of the noncompete issues to his benefit and to allow for a second bite at the apple after , losing his motion to dismiss in state court.’’ We see no clear error in this finding. The second consideration is the untimeliness of DuSablon’s removal. Despite his claimed ignorance of the supposed substantial fed- UNITED STATES of America, eral question until JCB responded to his Plaintiff-Appellee, motion to dismiss, DuSablon’s motion itself v. raised many issues of federal law. The Dandre MOODY, Defendant-Appellant. district court properly determined that DuSablon was or should have been aware No. 18-1837 of his asserted grounds for removal more United States Court of Appeals, than 30 days prior to his notice of removal. Seventh Circuit. Accordingly, the district court did not abuse its discretion in determining that Argued December 11, 2018 DuSablon lacked an objectively reasonable Decided February 7, 2019 basis to remove the case to federal court. Background: Following guilty plea, de- [6] Finally, JCB requests an award of fendant was convicted in the United States costs and fees incurred in defending this District Court for the Northern District of appeal.1 ‘‘[L]itigants who receive an award Illinois, John J. Tharp, Jr., J., No. 15-CR- of fees in the district court under § 1447(c) 350, of possessing a firearm as a felon,

1. In its brief, JCB also requests fees under (7th Cir. 2018) (denying request for sanctions Federal Rule of Appellate Procedure 38. But where party did not submit a ‘‘ ‘separately JCB did not file a separate motion under Rule filed motion’ ’’ for sanctions) (quoting FED. R. 38, so we deny its request. See Vexol, S.A. de APP. P. 38). C.V. v. Berry Plastics Corp., 882 F.3d 633, 638

000167 426 915 FEDERAL REPORTER, 3d SERIES

possessing a stolen firearm, and cargo gic justification for a defendant’s omission, theft, and was sentenced to 93 months’ court will presume an inadvertent forfei- imprisonment. Defendant appealed from ture rather than an intentional relinquish- sentence. ment. Holdings: The Court of Appeals, Barrett, 5. Criminal Law O1030(1) Circuit Judge, held that: Under the plain-error standard of re- (1) there was insufficient evidence to war- view, defendant must show that alleged rant four-level firearm-trafficking en- error is not subject to reasonable dispute, hancement, and that it affected his substantial rights, and (2) erroneous application of sentencing en- that it diminished the fairness, integrity, hancement warranted remand for fur- or reputation of the judicial proceedings. ther proceedings. Fed. R. Crim. P. 52(b). Vacated and remanded for further pro- 6. Sentencing and Punishment O973.5 ceedings. Government bears the burden of proving by a preponderance of the evidence 1. Criminal Law O1030(1), 1137(1) that firearm-trafficking sentencing en- Deferential standard of plain-error re- hancement is warranted. U.S.S.G. view applies when an issue has forfeited, § 2K2.1(b)(5). and no review is available when it has been 7. Sentencing and Punishment O731 waived. Government failed to prove by pre- 2. Criminal Law O1030(1), 1137(1) ponderance of the evidence that defendant An issue is waived and thus not re- knew or had reason to know that buyers of viewable when a defendant intentionally guns he stole from a train car were unlaw- relinquishes a known right; it is merely ful gun users or possessors, as would war- forfeited when a defendant neglects to rant four-level firearm-trafficking en- timely object. hancement, in sentencing defendant for possessing a firearm as a felon, possessing 3. Criminal Law O1042.3(1), 1137(1) a stolen firearm, and cargo theft; govern- Defendant forfeited, rather than ment did not present any evidence that waived, his objection to application of fire- defendant knew something more about the arm-trafficking enhancement upon his con- buyers than that they were in the market viction for possessing a firearm as a felon, for an off-the-books gun purchase, and it and thus, Court of Appeals would review was speculative to infer that those who for plain error; defendant failed to object purchased guns unlawfully also possessed at the time of sentencing, but the govern- or used those guns unlawfully, as they ment failed to propose any strategic justifi- could have carried valid firearms licenses. cation as to why defendant would inten- 18 U.S.C.A. §§ 659, 922(g)(1), 922(j); tionally bypass a challenge to a four-level U.S.S.G. § 2K2.1(b)(5). enhancement. 18 U.S.C.A. §§ 922(g)(1), 8. Criminal Law O1042.3(1), 1181.5(8) 922(j); U.S.S.G. § 2K2.1(b)(5). District court’s plainly erroneous ap- 4. Criminal Law O1144.19 plication of four-level firearm-trafficking Touchstone of waiver is knowing and enhancement following defendant’s convic- intentional decision not to assert right; if tion upon guilty plea to possessing a fire- the government cannot proffer any strate- arm as a felon, possessing a stolen firearm,

000168 U.S. v. MOODY 427 Cite as 915 F.3d 425 (7th Cir. 2019) and cargo theft affected defendant’s funda- BARRETT, Circuit Judge. mental rights and diminished fairness of Within two days of helping his codefen- judicial proceedings, warranting remand dants steal more than 100 guns from a for further proceedings; district court gave train car, Dandre Moody sold 13 of them no indication that it chose a sentence irre- to anonymous buyers who telephoned him spective of the advisory Guidelines range, after they ‘‘heard about it.’’ He pleaded and without the enhancement, the advisory guilty to possessing a firearm as a felon, 18 Guidelines range would drop from 121-151 U.S.C. § 922(g)(1); possessing a stolen months to 78-97 months, and because the firearm, id. § 922(j); and cargo theft, id. current 93-month sentence was designed § 659, for which he was sentenced to 93 to fall below range the judge had calculat- months’ imprisonment. ed, Court of Appeals could not be confi- Moody now appeals his sentence. He dent that district court would have been challenges, for the first time, a four-level willing to go even lower. 18 U.S.C.A. guideline enhancement under U.S.S.G. §§ 659, 922(g)(1), 922(j); U.S.S.G. § 2K2.1(b)(5) for trafficking firearms to § 2K2.1(b)(5). people he knew (or had reason to know) were unlawful users or possessors.1

Appeal from the United States District We agree with Moody that the district Court for the Northern District of Illinois, court plainly erred by imposing this en- Eastern Division. No. 15-CR-350 — John hancement. Nothing in the record suggests J. Tharp, Jr., Judge. that Moody had reason to believe that his buyers were unlawful gun users or posses- Christopher V. Parente, Attorney, OF- sors. By finding that Moody had such FICE OF THE UNITED STATES AT- knowledge, the court plainly crossed the TORNEY, Chicago, IL, for Plaintiff-Ap- line that separates permissible common- pellee. sense inference from impermissible speculation. We therefore vacate the judgment Michelle L. Jacobs, Attorney, Vanessa and remand for further sentencing pro- K. Eisenmann, Attorney, BISKUPIC & ceedings. JACOBS, S.C., Mequon, WI, for Defen- dant-Appellant. I. Before WOOD, Chief Judge, and One night in April 2015, Moody drove a RIPPLE and BARRETT, Circuit Judges. train-theft crew to a railyard on the south

1. Moody has abandoned a different argument: F.3d 1026, 1035 (7th Cir. 2018), and Moody that the district court engaged in impermissi- posits no grounds for overruling that decision. ble double-counting under U.S.S.G. Second, because this case was not consolidat- § 2K2.1(b) by applying both the four-level ed with Shelton’s, Moody was not permitted trafficking enhancement and a four-level en- to incorporate by reference his codefendant’s hancement for possessing a firearm in con- arguments. See Albrechtsen v. Bd. of Regents nection with another felony. Moody asked to of Univ. of Wisconsin Sys., 309 F.3d 433, 435– incorporate by reference this argument from 36 (7th Cir. 2002) (‘‘[A]ppellate briefs may not a codefendant’s brief in an appeal that was incorporate other documents by reference.’’); not consolidated with this one. We need not see also Parker v. Franklin Cty. Cmty. Sch. address this argument for two reasons. First, Corp., 667 F.3d 910, 924 (7th Cir. 2012) (re- as Moody conceded in his briefing, we reject- jecting defendants’ attempt to incorporate by ed this double-counting theory from a code- reference arguments in their prior district- fendant’s appeal, United States v. Shelton, 905 court brief).

000169 428 915 FEDERAL REPORTER, 3d SERIES side of Chicago. There, while part of the recovered in Chicago, many of them at crew broke into a parked train car and crime scenes.’’ It continued: stole 111 guns, Moody waited, ready to I know, Mr. Moody, that you don’t for a drive away with any merchandise that the second believe that any of those folks crew might retrieve. were interested in lawfully possessing a firearm. There is absolutely no question Moody’s share of the loot was 13 guns. that the people that were seeking to buy Within two days, according to his uncon- those firearms wanted those firearms to tradicted testimony at his change-of-plea support other unlawful activity beyond hearing, he sold them to different anony- their possession of the firearms. Wheth- mous buyers who phoned him after they er it was drug trafficking, whether it had ‘‘heard about it.’’ Moody was not asked was violent crime, whether it was bur- follow-up questions on the record about glary, robbery, that’s who buys guns the nature of ‘‘it,’’ and the presentence that have been stolen off a train. investigation report did nothing to further clarify what the callers had heard. Of the The court sentenced Moody to a prison crew’s stolen guns, 33 were recovered be- term of 93 months, which was below the fore sentencing—17 at crime scenes. The advisory Guidelines range. sentencing record does not, however, tie Moody to any of the recovered guns. II. Moody pleaded guilty to possessing a gun Moody argues that the district court as a felon, possessing a stolen gun, and wrongly applied the firearm-trafficking en- cargo theft. hancement under U.S.S.G. § 2K2.1(b)(5). He maintains that the government did not Sentencing followed. The district court provide sufficient evidence that he had rea- began the sentencing hearing by confirm- son to believe that 2 or more of the 13 ing that Moody had reviewed the PSR’s buyers either were legally barred from guidelines calculation (which included the firearm possession (by virtue of a prior enhancement at issue here, but not any conviction for, say, a crime of violence like factual detail on that point) with counsel, aggravated assault, see § 2K2.1 n.13(B) & had filed no objections, and planned to § 4B1.2(a)(2) ), or would use the guns in make none. The court calculated an adviso- other crimes. Based on this record, he ry Guidelines range of 121 to 151 months’ contends, someone in his shoes could at imprisonment. In doing so, it applied three most reasonably think only that the callers enhancements from the 2016 Guidelines wished to make an unlawful purchase but Manual, including a four-level enhance- not that they were otherwise barred from ment pursuant to 2K2.1(b)(5) because the firearm possession or would use the guns offense involved trafficking in firearms. unlawfully. The court reasoned that this enhancement applied because Moody had sold his share [1, 2] Before tackling the merits of of stolen guns ‘‘literally to anyone who Moody’s argument, we must address a called expressing an interest in getting’’ threshold issue: the parties’ dispute about them, and the court presumed that at least whether Moody’s failure to object in the several of these people would use them in district court to this enhancement means future crimes. The court said that this that he ‘‘waived’’ or merely ‘‘forfeited’’ this conduct posed a danger to the community argument. Whether a defendant had rea- because ‘‘many [of the guns] have been son to know of a gun-buyer’s nefarious

000170 U.S. v. MOODY 429 Cite as 915 F.3d 425 (7th Cir. 2019)

purpose is the kind of factual question we As relevant here, this means that the de- review for clear error if the issue is pre- fendant ‘‘knew or had reason to believe’’ served. United States v. Jemison, 237 F.3d that, for at least two guns, the recipient 911, 918 (7th Cir. 2001). But the even more intended to use the weapon in a further deferential standard of plain-error review crime or was already a person prohibited, applies when an objection has been forfeit- by federal law on specified grounds, from ed, and no review is available when it has possessing guns. U.S.S.G. § 2K2.1 n.13(A). been waived. United States v. Oliver, 873 A ‘‘person prohibited’’ is narrowly defined F.3d 601, 607 (7th Cir. 2017). An issue is as someone ‘‘whose possession or receipt waived when a defendant intentionally re- of the firearm would be unlawful.’’ Id. Such linquishes a known right; it is merely for- a person ‘‘(i) has a prior conviction for a feited when a defendant neglects to timely crime of violence, a controlled substance object. Id. offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense [3, 4] Here, the better view is that was under a criminal justice sentence, Moody forfeited rather than waived the including probation, parole, supervised re- objection. ‘‘The touchstone of waiver is a lease, imprisonment, work release, or es- knowing and intentional decision.’’ United cape status.’’ Id. at n.13(B) (emphasis add- States v. Jaimes-Jaimes, 406 F.3d 845, 848 ed). The government bears the burden of (7th Cir. 2005). If the government cannot proving by a preponderance of the evi- proffer any strategic justification for a de- dence that this enhancement is warranted. fendant’s omission, we will presume an United States v. Johnson, 743 F.3d 196, inadvertent forfeiture rather than an in- 201 (7th Cir. 2014). tentional relinquishment. Oliver, 873 F.3d at 607; cf. United States v. Young, 908 Moody attacks as impermissibly specula- F.3d 241, 246–47 (7th Cir. 2018). No one tive the district court’s conclusion that he has proposed a strategic reason for Moody had reason to believe that his buyers were to have bypassed a challenge to a four- barred from gun possession or that they level enhancement. Thus, the claim is for- intended to use the guns in crimes. In his feited, and we will review the district view, the court assumed that the callers court’s decision for plain-error. Oliver, 873 had heard about the train theft and were F.3d at 607. seeking to buy guns that they knew were stolen. And from that premise, the court [5] Under the plain-error standard, inferred that the callers planned to use Moody must show that the error is not these guns in other crimes, and, further, subject to reasonable dispute, that it af- that Moody had reason to know it. The fected his substantial rights, and that it PSR and sentencing memoranda, mean- diminished the fairness, integrity, or repu- while, offered no substantiation for this tation of the judicial proceedings. Id.; Mo- chain of inferences. lina-Martinez v. United States, ––– U.S. The government counters that while ––––, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 Moody did not know his buyers’ identities, (2016); Fed. R. Crim. P. 52(b). Although he surely knew that they were in the that standard is demanding, Moody meets market for stolen guns. Common sense, it. the government adds, would say that few, [6] U.S.S.G. § 2K2.1(b)(5) directs a if any, of these 13 anonymous buyers of court to increase a defendant’s offense lev- stolen guns would be permitted by federal el by four for the ‘‘trafficking’’ of firearms. law to possess guns generally.

000171 430 915 FEDERAL REPORTER, 3d SERIES

But the only evidence that the govern- (7th Cir. 2018) (upholding enhancement ment offered on this point is Moody’s re- where defendant and recipient discussed mark that he sold his share of the guns to using guns unlawfully); United States v. ‘‘different people who heard about it.’’ But Jemison, 237 F.3d 911, 918 (7th Cir. 2001) what ‘‘it’’ refers to is impossible to discern (reasoning that it would be ‘‘na¨ıve’’ to con- from the record. ‘‘It’’ might refer to the clude that Jemison had no reason to think train heist, or ‘‘it’’ might refer to a bunch guns he sold to a gang would be used to of guns (which may or may not be stolen) commit other felonies; ‘‘the public [is] not available for an off-the-books sale. If ‘‘it’’ blissfully ignorant of the connection be- merely refers to a load of guns for sale, tween criminal violence and street gangs’’). then Moody’s statement simply establishes Indeed, Moody’s case also stands in con- that he possessed stolen firearms. But that trast to that of his codefendants because in criminal act is already accounted for by his their case, the government introduced evi- conviction for possessing a stolen firearm dence that they knew specific buyers were and does not justify the enhancement. See prohibited persons.2 His case is more like 18 U.S.C. § 922(g)(1). And the anonymous United States v. Green, 360 F. App’x. 521, participants’ interest in off-the-books gun sales might have given Moody reason to 522–25 (5th Cir. 2010) (non-precedential believe that their purchases were unlawful, disposition), in which the Fifth Circuit re- but not that their possession or use of the jected the enhancement for a defendant guns is unlawful. As Moody emphasizes, who smuggled five guns to two people in those who purchase guns unlawfully do not Mexico. The enhancement was based on necessarily fall into the prohibited catego- the district court’s supposition that guns in ry defined by U.S.S.G. § 2K2.1(b)(5). For Mexico are predominantly used by drug- example, Lori Shelton, a lawful gun-owner trafficking organizations. The Fifth Circuit identified in a codefendant’s sentencing held that this supposition was too big a record, bought firearms from the heist. leap. Id. at 525. Shelton carried a valid firearm license and intended to give the guns to her adult [7] In short, the government’s evi- children once they, too, obtained licenses. dence that Moody sold guns to ‘‘different The government correctly notes that Shel- people who heard about it’’ is an insuffi- ton’s intentional purchase of stolen proper- cient basis for concluding that Moody sold ty was itself a crime in Illinois, see 720 guns to 2 or more people who satisfied the ILCS 5/16-1(a)(4), but this did not make narrow criteria of U.S.S.G. § 2K2.1 her a prohibited person under U.S.S.G. n.13(A). In concluding otherwise, the dis- § 2K2.1 n.13(B). trict court relied on a series of inferences Moody’s case thus stands in contrast to that were plainly too speculative to sup- those in which the seller knew something port a finding by a preponderance of the more about the buyers than that they were evidence. We therefore agree with Moody in the market for a gun. See, e.g., United that the enhancement was plainly improp- States v. Rodriguez, 884 F.3d 679, 679–81 er.

2. We might feel differently about this case if tion report or the government’s sentencing the government had presented more evidence memo—what Moody knew or had reason to (e.g., if the government had shown that know about who his buyers were or why they Moody’s buyers were connected to him and wanted guns, beyond his admission that his his train heist). But it is not clear from the callers had ‘‘heard about it.’’ record—not even the presentence investiga-

000172 U.S. v. VACCARO 431 Cite as 915 F.3d 431 (7th Cir. 2019)

In so holding, we are mindful that our was designed to fall below the range the precedents allow a district court great lee- judge had calculated, we cannot be confi- way to make commonsense inferences. See, dent that the court would have been un- e.g., United States v. Gilmore, 60 F.3d 392, willing to go even lower. 393–94 (7th Cir. 1995); see also United None of this is to say that Moody is States v. Jemison, 237 F.3d 911, 918 (7th assured a lighter sentence on remand. Per- Cir. 2001). In Gilmore, we held that a haps a revised PSR or other evidence will district court did not err by inferring that cure any ambiguity. And even if the gun- the defendant had reason to believe the trafficking guideline does not apply, the guns he ‘‘lost’’ would be used unlawfully, district court may consider whether, as a even though the only evidence was that matter of the sentencing factors under 18 one of the guns was found at a crime scene U.S.C. § 3553(a), Moody’s blindness to his and Gilmore (the original gunowner) did buyers’ identities makes it reasonable to not know the identities of the new owners. refrain from going any lower. These possi- 60 F.3d at 394. But in Moody’s case, no bilities are for the district court to consid- such inference is available. Although 17 of er in the first instance. the crew’s 111 firearms were found at crime scenes, no evidence ties any of the III. guns found at crime scenes to those sold by Moody. Because the inferential leap The judgment of the district court is required by common sense is too great VACATED and REMANDED for further here, the government has not met its bur- proceedings consistent with this decision. den of proof.

[8] Of course, this error is not reversible simply because it is plain—we must , also conclude that it affected Moody’s substantial rights and diminished the fairness, integrity, or reputation of the judicial proceedings. The Supreme Court has re- UNITED STATES of America, peatedly emphasized that when an unpre- Plaintiff-Appellee, served guideline error is plain, it typically v. affects both fundamental rights and fairness by setting an incorrect range for the Travis S. VACCARO, Defendant- probable sentence. See generally Molina- Appellant. Martinez v. United States, ––– U.S. ––––, No. 18-1753 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016); Rosales-Mireles v. United States, ––– U.S. United States Court of Appeals, ––––, 138 S.Ct. 1897, 201 L.Ed.2d 376 Seventh Circuit. (2018). That is true here. The district court Argued December 11, 2018 gave no indication that it chose a sentence ‘‘irrespective of the Guidelines range.’’ Mo- Decided February 7, 2019 lina-Martinez, 136 S.Ct. at 1346. And Background: Motorist was convicted, on without the enhancement, Moody’s adviso- conditional guilty plea entered in the Unit- ry Guidelines range would drop from 121– ed States District Court for the Eastern 151 months to 78–97 months. Because the District of Wisconsin, No. 17-CR-84-JPS, district court’s current 93-month sentence J. P. Stadtmueller, J., of being felon in

000173 Case: 1:18-cr-00629 Document #: 26-1 Filed: 12/10/18 Page 1 of 6 PageID #:47

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHISN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES, ) ) ) ) ) ) Case No. 18-CR-629 v. ) ) Judge Kennelly ) ELIJAH MURPHY, ) ) Defendant. ) )

DEFENDANT’S MOTION TO QUASH ARREST AND SUPPRESS GUN EVIDENCE, OR FOR THE SETTING OF AN EVIDENTIARY HEARING WITH REGARD TO THAT MOTION

Defendant, Elijah Murphy (“Mr. Murphy”), by and through his undersigned counsel, respectfully moves this Court for the entry of an Order quashing his arrest and suppressing the gun evidence which was unlawfully seized, and states as follows:

Procedural Background

1. Mr. Murphy has been charged as a felon in possession of gun in violation of 18

U.S.C., section 922 (g)(1).

2. That alleged offense arises out of the Evanston Police Department’s (“CPD”) arrest of

Mr. Murphy on state law charges.

000174 Case: 1:18-cr-00629 Document #: 26-1 Filed: 12/10/18 Page 2 of 6 PageID #:47

Facts

3. The facts arising out of Mr. Murphy’s arrest, including the circumstances surrounding

the search of the vehicle at issue, are set forth in the attached Affidavit of Mr.

Murphy. See Murphy Affidavit, submitted as an Exhibit herewith. However, they

are also set forth herein for convenience.

4. Prior to his arrest, Mr. Murphy was with several of his friends. Id. They dropped Mr.

Murphy off in a parking lot in Evanston, Illinois (“the parking lot”), where Murphy

had agreed to meet his girlfriend, China.

5. Murphy was meeting China in order to follow her to the south side in a light-colored

rental car that was rented under the name of China’s mother; the rental car was

parked in the parking lot before he arrived. Id.

6. China would be driving her own car, a dark colored Dodge Avenger (“the Dodge”),

and Mr. Murphy would be following her to the south side in the rental car. Id.

7. Murphy met China in the parking lot and she handed him the keys to that rental car.

Id.

8. Murphy got in the rental car. Id. When he did so, he was not: a.) carrying any bags;

b) in possession of any guns on his person; c.) smoking any marijuana; d) in

possession of any marijuana on his person. Id.

9. There was a bag on the floor of the rental car that the officers claimed contained a

firearm. Id. The bag, which was partially concealed, did not belong to Mr. Murphy.

10. China began to drive across and out of the parking lot in her car; however, a marked

squad car began pursuing her. Id.

2 000175 Case: 1:18-cr-00629 Document #: 26-1 Filed: 12/10/18 Page 3 of 6 PageID #:47

11. Mr. Murphy later learned – after his arrest – that the Evanston police arrested China

at that time. Id.

12. Mr. Murphy did not follow China out of the parking lot because he saw the police

pursuit. Id. Instead, Murphy remained in the parked rental car and called a friend. Id.

13. As Murphy was sitting in the car, he did not have any of the interior lights on in the

car. Id.

14. At no point was there any stench of marijuana in or near the parked car. Id.

15. After finishing his call, Mr. Murphy got out of the rental car, at which point the

Evanston police officers, who were fifteen or so feet away, got out of their car. Id.

16. Mr. Murphy locked the parked car with the key/key device and walked towards and

then past the Evanston police officers. Id.

17. As Mr. Murphy did so, he realized that he must have dropped the key for the rental

car and so he walked back towards the officers and said something like, “did I just

drop my key?” Id.

18. The Evanston Officers then told Mr. Murphy that they needed to search him. Id.

19. Mr. Murphy did not consent to the search of his person. Id.

20. Mr. Murphy provided them with his name and other information, and he told them

that he was on parole. Id.

21. The Officers asked Mr. Murphy if the parked car was his, and Mr. Murphy responded

that the car was not his. Id.

22. One of the Officers used the key that Mr. Murphy had previously dropped to open the

rental car. Id.

3 000176 Case: 1:18-cr-00629 Document #: 26-1 Filed: 12/10/18 Page 4 of 6 PageID #:47

23. The Officers did not ask Mr. Murphy’s permission prior to opening and searching the

parked car. Id. Murphy did not give the Officers permission to open or search the

car. Id.

24. The officers arrested Mr. Murphy. Id.

25. Based upon the charging documents and the discovery in this case, the Officers

recovered a gun – which the Government contends belonged to Mr. Murphy – during

their search of the rental car.

26. The Officers contend that it was in the bag that was inside the rental car – which, the

Government apparently concedes was not Mr. Murphy’s bag.

27. Mr. Murphy could not and did not see the gun sticking out of that bag. Mr. Murphy

does not believe anyone could see a gun sticking out of the bag as it was positioned

on the floor of the rental car. Id.

28. In fact, Mr. Murphy learned following his arrest that the Evanston Police

subsequently released the bag that purportedly contained the firearm to a woman. Id.

29. Moreover, in addition to that bag, the Officers recovered a number of items that were

tied to or identified China, including China’s job-related paperwork, etc.1

30. Based upon the discovery material produced to-date, it appears that at least one

Officer will concede that the gun was not in plain view, and that is was not seen until

the bag was moved by the Officer.

1 However, the Government will point out that, apparently multiple fingerprints were recovered from the gun seized, including, according to the Government, that of Mr. Murphy as well as China.

4 000177 Case: 1:18-cr-00629 Document #: 26-1 Filed: 12/10/18 Page 5 of 6 PageID #:47

31. The Evanston Police Officers did not have a warrant to arrest Mr. Murphy and did not

have a warrant to search the parked rental car.

32. It appears that the Government/Officers will attempt to claim that they had

probable cause to search the car because the Officers allegedly smelled marijuana

from across the parking lot. That is belied by the testimony of Mr. Murphy, defies

logic, and is not corroborated by objective evidence.

III. Conclusion

33. Based upon the foregoing, probable cause did not exist to search the vehicle, and the

gun recovered should therefore be suppressed.

WHEREFORE, Defendant, Mr. Murphy, by and through his undersigned CJA appointed panel counsel, Michael I. Leonard, respectfully moves this Court for the entry of an

Order granting his Motion, or, in the alternative, setting this Motion for an evidentiary hearing and requiring the Government to produce all of the officers involved in the arrest of Mr. Murphy at that hearing, and for such other and further relief as is appropriate.

RESPECTFULLY SUBMITTED,

By: s/Michael I. Leonard Counsel for Mr. Murphy

LEONARDMEYER, LLP Michael I. Leonard 120 North LaSalle – 20th Floor Chicago, Illinois 60602 (312)380-6659 (direct) (312)264-0671 (fax) [email protected]

5 000178 Case: 1:18-cr-00629 Document #: 26-1 Filed: 12/10/18 Page 6 of 6 PageID #:47

CERTIFICATE OF SERVICE

The undersigned states that, on December 10, 2018, he caused the above document to be served upon opposing counsel of record by ECF filing it, and by way of e-mail.

By:/s/ Michael I. Leonard

6 000179 Case: 1:18-cr-00629 Document #: 26-2 Filed: 12/10/18 Page 1 of 3 PageID #:53

000180 Case: 1:18-cr-00629 Document #: 26-2 Filed: 12/10/18 Page 2 of 3 PageID #:53

000181 Case: 1:18-cr-00629 Document #: 26-2 Filed: 12/10/18 Page 3 of 3 PageID #:53

000182 United States v. Smith, --- F.3d ---- (2019)

punishment was authorized, and in the state's prosecution of defendant, the state court, without 2019 WL 4724052 entering judgment of guilt, deferred further Only the Westlaw citation is currently available. proceedings and placed defendant on probation United States Court of Appeals, Fourth Circuit. for purpose of allowing him to demonstrate his UNITED STATES of America, Plaintiff - Appellee, good conduct. 18 U.S.C.A. §§ 921(a)(20), 922(g) v. (1); N.C. Gen. Stat. Ann. §§ 14-74, 114-415.1(b), Tyrius Eugene SMITH, Defendant - Appellant. 5A-1340.17, 15A-1341(a4). Cases that cite this headnote No. 18-4394 | Argued: May 8, 2019 [2] Weapons | Decided: September 27, 2019 To be guilty of being a felon in possession of a firearm, an individual must knowingly possess a Synopsis firearm and know that he had been convicted of Background: In prosecution for being a felon in possession a felony offense when he possessed. 18 U.S.C.A. of a firearm , the United States District Court for the Western § 922(g)(1). District of North Carolina, Martin Reidinger, J., 2018 WL 411338, denied defendant's motion to dismiss grand jury Cases that cite this headnote indictment, and defendant was convicted of charged offense after bench trial. Defendant appealed. [3] Weapons

For a state-law criminal offense, as predicate for [Holding:] The Court of Appeals, Richardson, Circuit Judge, federal offense of possessing a firearm following held that under North Carolina law as predicted by the Court a felony conviction, state law determines of Appeals, defendant's prior North Carolina felony larceny whether the offense counts as a conviction. 18 offense, for which defendant's guilty plea was followed by U.S.C.A. §§ 921(a)(20), 922(g)(1). conditional-discharge probation, was not a predicate felony “conviction” for the federal offense. Cases that cite this headnote

Reversed.

United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. West Headnotes (3) (1:17-cr-00098-MR-DLH-1)

Attorneys and Law Firms [1] Weapons ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS Under North Carolina law as predicted by the OF WESTERN NORTH CAROLINA, INC., Charlotte, federal court, defendant's prior North Carolina North Carolina, for Appellant. Anthony Joseph Enright, felony larceny offense, for which defendant's OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, guilty plea was followed by conditional- North Carolina, for Appellee. ON BRIEF: Anthony Martinez, discharge probation, was not a “conviction” for Federal Public Defender, FEDERAL DEFENDERS OF purposes of federal offense of firearm possession WESTERN NORTH CAROLINA, INC., Charlotte, North after felony conviction; North Carolina's felon- Carolina, for Appellant. R. Andrew Murray, United States in-possession statute defined “conviction” as a Attorney, OFFICE OF THE UNITED STATES ATTORNEY, “final judgment” in a case in which felony Charlotte, North Carolina, for Appellee.

entered shall be withdrawn and the court shall discharge the Before MOTZ, WYNN, and RICHARDSON, Circuit Judges. person and dismiss the proceedings against the person.” Id. at § 15A-1341(a6). But if Smith were to violate a condition, Opinion then “the court may enter an adjudication of guilt” and go on to impose a sentence. Id. Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Motz and Judge Wynn joined. While serving his conditional-discharge probation, Smith was caught with pistols twice. His firearm possession violated the RICHARDSON, Circuit Judge: terms of his state probation. But before the state court resolved this violation, a federal grand jury indicted Smith for being a *1 [1] Tyrius Smith was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). felon in possession of a firearm. Smith agreed to a bench trial While there is no doubt that he possessed a firearm, we must and was found guilty. The federal court sentenced him to time decide whether he was a felon under federal law. Answering served and three years of supervised release. that question is surprisingly difficult. Federal law treats someone as a felon if “convicted” of a crime punishable by Smith appeals his federal conviction, and we have jurisdiction more than one year in prison. 18 U.S.C. § 922(g)(1). But what to review it under 28 U.S.C. § 1291. He argues that his federal exactly counts as a “conviction”? In some cases the answer conviction is invalid because he had no prior convictions seems easy—for example, where a federal judge imposes a prohibiting his possession of the firearms. The Government sentence after a jury has found the defendant guilty. In other relies on Smith’s 2016 conditional-discharge plea, which cases it is hard; this is one of them. Smith’s only alleged Smith argues did not constitute a conviction. conviction is a North Carolina larceny offense where the state- court judge imposed a “conditional discharge,” as provided for by state statute, after a plea. So we must determine II. whether a conditional-discharge plea is a “conviction.” And by statute, we must follow North Carolina law in making that *2 [2] Federal law generally prohibits the possession of a determination. 18 U.S.C. § 921(a)(20). firearm by any person “who has been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding The district court found that, under North Carolina law, a one year.” 18 U.S.C. § 922(g)(1). To be guilty of this offense, plea of guilty followed by conditional-discharge probation is a the individual must knowingly possess a firearm and know conviction. We disagree and conclude that the North Carolina that he had been “convicted” of such an offense when he Supreme Court, if faced with the question before us, would possessed it. Rehaif v. United States, ––– U.S. ––––, 139 S. hold that a conditional-discharge plea is not a conviction for Ct. 2191, 2194, 204 L.Ed.2d 594 (2019). purposes of §§ 921 and 922. So Smith was not a felon, and his federal felon-in-possession conviction must be reversed. [3] A disqualifying conviction may be either a federal or state conviction. What constitutes a “conviction” “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a) I. (20). So, for a state-law criminal offense, the law of In 2016, Smith pleaded guilty to Larceny by Employee, the prosecuting jurisdiction determines whether something N.C. Gen. Stat. § 14-74, a state-law felony punishable by counts as a conviction. Beecham v. United States, 511 U.S. imprisonment for between four and twenty-five months, id. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994); United 1 at § 15A-1340.17. The judge, under statutory authority and States v. Walters, 359 F.3d 340, 344 (4th Cir. 2004). with the consent of the prosecutor, imposed a “conditional discharge.” This meant that “without entering a judgment of 1 In Dickerson v. New Banner Institute, Inc., 460 U.S. guilt,” the court “defer[ed] further proceedings and place[d] 103, 111–12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), the person on probation ... for the purpose of allowing the the Supreme Court had held that what constituted a defendant to demonstrate the defendant’s good conduct.” Id. conviction for federal gun control statutes was a question at § 15A-1341(a4). If Smith fulfilled the probation conditions of federal, not state, law. Three years later, Congress imposed, then “any plea or finding of guilty previously amended § 921(a)(20) to make state law controlling.

See Firearm Owners’ Protection Act, Pub. L. 99–308, punishment, or imprisonment for a term exceeding one year ... § 101(5), 100 Stat. 449 (1986) (currently codified at is authorized, without regard to the plea entered or to the 18 U.S.C. § 921); see also Logan v. United States, 552 sentence imposed.” N.C. Gen. Stat. § 14-415.1(b) (emphasis U.S. 23, 27–28, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007) added). Smith’s guilty plea and conditional discharge— (noting that Congress acted “in response to Dickerson’s as required by statute—was done “without entering a holding that, for purpose of federal firearm disabilities, judgment of guilt.” JA16; see also id. (deferring “further state law did not determine the present impact of a prior 2 conviction”). proceedings”). And without entry of a judgment, and until the anticipated “further proceedings” take place, the Smith’s larceny proceedings were held in North Carolina. We conditional discharge does not lead to a final judgment. In must thus determine how North Carolina’s Supreme Court sum, because this definition of “conviction” requires a final would decide whether an individual on conditional-discharge judgment, and Smith had no final judgment, there was no probation had a “conviction” under the federal felon-in- conviction. possession prohibition. As North Carolina has not been called to decide this state-law question in the context of this federal 2 criminal statute, we look at various sources of North Carolina A conditional discharge also fails to constitute the law for evidence of how the North Carolina Supreme Court imposition of a “final” sentence, instead deferring it. By would rule. statute, the initial conditional-discharge probation may be followed by punishment if the defendant violates “a term or condition of a conditional discharge.” N.C. North Carolina law lacks a single, general-use definition Gen. Stat. § 15A-1341(a6). This punishment extends of conviction. Instead, the applicable definition in North to the full extent of the punishment provided by the Carolina depends on the context. See State v. Bandy, 15 underlying offense. Id. Thus, the initial conditional- N.C.App. 188, 189 S.E.2d 773, 774 (1972) (“[T]he word discharge probation is not a final sentence but merely ‘conviction’ may mean a verdict or may refer to a verdict a step along the path to determining the final sentence. upon which judgment has been entered depending upon the Cf. id. at § 15A-101(4a) (“Judgment is entered when context in which it is used.”); cf. Turlington v. McLeod, 323 sentence is pronounced.”). N.C. 591, 374 S.E.2d 394, 398 (1988) (noting that interpreting The Government points to a different definition of a statutory term requires considering the differing contexts in “conviction” from North Carolina’s sentencing scheme, N.C. which it is used). Gen. Stat. § 15A-1331(b). This provides: “For the purpose of imposing sentence, a person has been convicted when he We begin by looking at how conviction is defined in the most has been adjudged guilty or has entered a plea of guilty or analogous context: North Carolina’s own felon-in-possession no contest.” Id. Since a person is “convicted” after entering statute, N.C. Gen. Stat. § 14-415.1. To be clear, whether a plea of guilty, and a conditional discharge requires a North Carolina’s felon-in-possession statute prohibited Smith guilty plea, a conditional discharge necessarily involves a from possessing a firearm does not control our inquiry. conviction. But this definition is limited “[f]or the purpose See United States v. Walters, 359 F.3d 340, 345 (4th Cir. of imposing sentence.” Id. And even within the sentencing 2004) (“Nowhere does the federal firearm law limit its context, other provisions suggest a different result. A separate applicability to the parameters of the state firearm law.”). sentencing statute provides that a “convicted offender” may But when a state has no all-purpose definition of conviction, be placed on probation for no more than five years while courts must look somewhere. And whether a defendant has someone receiving “a conditional discharge” is limited to two been “convicted” for the purpose of the state’s own felon- years. N.C. Gen. Stat. § 15A-1342(a). This provision suggests in-possession statute is a good place to start. See United that North Carolina sentencing law does not always treat a States v. Chubbuck, 252 F.3d 1300, 1304 (11th Cir. 2001) conditional discharge as a conviction. (“Viewing the term ‘conviction’ as context specific, the more appropriate source of applicable Florida law would be that Similarly unavailing are the Government’s citations to North surrounding Florida’s own unlawful possession of firearms by Carolina sentencing cases. Govt. Br. at 8. These cases do not a felon statute.” (emphasis added)). adopt a bright-line rule that a guilty plea is a conviction for all purposes. For example, in North Carolina v. Thompson, the *3 The North Carolina felon-in-possession ban defines court noted that a “valid guilty plea acts as a conviction of the “conviction” as “a final judgment in any case in which felony offense charged” for purpose of establishing the aggravating

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000185 3 United States v. Smith, --- F.3d ---- (2019) factors used to sentence the defendant on that guilty plea. 314 a “judgment,” making the plea and prayer a conviction. N.C. 618, 336 S.E.2d 78, 81 (1985) (emphasis added). Yet Friend, 609 S.E.2d at 476 (noting that a conviction is a the fact that the plea “acts” as a conviction in this specific “judgment”). But this conflicts with an earlier North Carolina circumstance suggests, if anything, that it is not a conviction Supreme Court decision: “When the prayer for judgment is in others. Cf. United States v. Waters, 359 F.3d 340, 346 (4th continued there is no judgment—only a motion or prayer by Cir. 2004) (“That an adjudication is treated as a conviction the prosecuting officer for a judgment.” State v. Griffin, 246 in specific circumstances implies that it is not so treated as N.C. 680, 100 S.E.2d 49, 51 (1957). And it conflicts with a a general rule.”). 3 Thompson thus serves to confirm our North Carolina statute: “Prayer for judgment continued upon conclusion above: a guilty plea may serve as a conviction for payment of costs, without more, does not constitute the entry sentencing, not necessarily for all purposes. of judgment.” N.C. Gen. Stat. § 15A-101(4a).

Only if the judge also “imposes conditions amounting 3 In North Carolina v. Sidberry, the court noted that to punishment (fine or imprisonment)” does a prayer for a guilty plea “is equivalent to a conviction” for the judgment order become a “final judgment.” Griffin, 100 purpose of North Carolina Rule of Evidence 609(a). 337 N.C. 779, 448 S.E.2d 798, 800 (1994). As in S.E.2d at 51, 246 N.C. 680. For when the prayer and Thompson, the court did not say that a guilty plea was punishment occur at the same time, the court must treat in fact a conviction; the plea was only “equivalent” to a the prayer as surplusage because the punishment creates conviction. And it did so in the context of determining a final judgment, subject to appeal. Since punishment has whether a guilty plea with a “prayer for judgment already been inflicted, “the court has exhausted its power continued” could be used to attack the credibility of a and cannot thereafter impose additional punishment.” Id. 4 witness. Thus, a key predicate of Friend’s holding—that a “prayer for *4 The Government also seeks to analogize Smith’s judgment continued” constitutes a “judgment”—appears to conditional discharge to a “prayer for judgment continued,” be inconsistent with North Carolina law. 5 which the North Carolina Court of Appeals has held qualified as a conviction barring issuing a firearm permit. Friend 4 The broad rationales employed by Friend are also hard v. North Carolina, 169 N.C.App. 99, 609 S.E.2d 473, to square with North Carolina cases explaining that the 476 (2005). A prayer for judgment continued is a unique meaning of the word “conviction” varies “depending procedure of North Carolina criminal law that allows the court upon the context in which it is used.” See Bandy, 189 to delay sentencing a defendant who has pleaded guilty until S.E.2d at 774. Compare N.C. Gen. Stat. § 14-415.1 a later term of the court. In Friend, the North Carolina court (conviction is a “final judgment[,] ... without regard to analyzed whether someone who has entered such a prayer the plea entered or to the sentence imposed”) (emphasis falls within the scope of a statute that prohibits issuing a added), with id. at § 15A-1331(b) (conviction includes a firearm permit to anyone “who is under an indictment or “plea of guilty”). information for or has been convicted ... of a felony.” N.C. 5 Nor do the cases that Friend cited provide much support Gen. Stat § 14-404(c)(1). Relying largely on judicial decisions for its analysis. Like Sidberry and Thompson discussed in other contexts that treated a guilty plea as a conviction, the above, these cases provide little clue about whether a court in Friend reasoned that, despite the lack of any sentence, conditional discharge should be treated as a conviction a plea followed by a prayer for judgment continued counted under North Carolina law for the federal felon-in- as a conviction under § 14-404(c)(1). See Friend, 609 S.E.2d possession ban. For example, in North Carolina v. Watts, at 475. 325 S.E.2d 83 (N.C. Ct. App. 1985), the appellate court summarily found that a “no contest” plea counted as a For two reasons, we conclude that the North Carolina conviction without discussion of whether the defendant Supreme Court would not apply Friend’s holding to a had been sentenced. conditional discharge. Second, even if we accepted Friend’s analysis of prayers for judgment continued, we would find conditional discharges First, while we generally treat intermediate appellate-court distinguishable. In 2014, the North Carolina General decisions as good evidence of state law, we have doubts Assembly amended the state’s law on “Probation Generally” about Friend’s persuasiveness. Friend appears to find that to authorize courts to grant a conditional discharge. N.C. a plea with a prayer for a judgment continued constitutes Gen. Stat. § 15A-1341(a4). True, the statute requires the

imposition of consequences in the form of probation with law—particularly where Smith must know that he had been conditions, which makes it look somewhat like a conviction. “convicted,” Rehaif, 139 S. Ct. at 2194—would point us to the Yet the imposition of probation as part of a conditional rule of lenity and require us to find for Smith. See generally discharge is done “without entering a judgment of guilt” and United States v. Davis, ––– U.S. ––––, 139 S.Ct. 2319, 2333, instead “defer[s] further proceedings.” Id. This procedure 204 L.Ed.2d 757 (2019); State v. Cates, 154 N.C.App. 737, permits the court to impose consequences in the form of 573 S.E.2d 208, 210 (2002). conditions and fines as part of the conditional-discharge probation while leaving open the possibility of punishment. * * * Id. at § 15A-1341(a6). 6 As a result, even if a prayer for Based on our review of North Carolina statutes and caselaw, judgment continued is properly treated as a “judgment” (as we conclude that the North Carolina Supreme Court would Friend held) and thus a conviction, the governing statute tells not treat a plea of guilty followed by conditional discharge as us that a conditional discharge is not a “judgment.” a conviction in the context of the federal felon-in-possession statute. Thus, Smith’s conditional discharge from 2016 was 6 In contrast, a prayer for judgment continued to the next not a conviction under § 921(a)(20). So Smith could not have term of court prohibits a court from dismissing the violated § 922(g)’s prohibition on possessing a firearm after proceeding absent a habeas corpus petition or motion for being “convicted” of a felony. Smith’s federal conviction is appropriate relief. State v. Popp, 197 N.C.App. 226, 676 therefore S.E.2d 613, 615 (2009). *5 Looking for a last bastion, the Government suggests REVERSED. that we resolve any uncertainty by looking at the punitive purpose of the federal law. Even were we to turn to purpose, the Government gets it exactly backwards. If we were All Citations unsure about how North Carolina law would treat Smith’s --- F.3d ----, 2019 WL 4724052 conditional-discharge guilty plea, the punitive nature of the

Before concluding, I should acknowledge the district judge’s references to experi- UNITED STATES of America, ences that she and a lawyer she knows Plaintiff-Appellee, have had with sudden courtroom violence. v. In Deck, the Supreme Court said it was Dimitris TERRY, Defendant-Appellant. ‘‘mindful of the tragedy that can result if judges are not able to protect themselves No. 18-1305 and their courtrooms.’’ 544 U.S. at 632, 125 United States Court of Appeals, S.Ct. 2007. I hope I am, as well. That’s Seventh Circuit. why appellate courts give trial courts considerable discretion in handling these is- Argued October 30, 2018 sues of courtroom security. Judge Myers- Decided February 14, 2019 cough’s distinguished career on federal Background: Defendant was charged and state benches shows her deep devotion with possession, distribution, and conspira- to the rule of law and her commitment to cy to possess and distribute heroin. The treating all parties fairly and with dignity. United States District Court for the With respect, however, given the tension Northern District of Illinois, No. 11 Cr between security and fairness, dignity, and 887-3, Ronald A. Guzm´an, J., 2014 WL decorum, a blanket practice of using maxi- 1651956, denied defendant’s motions to mum security measures for all detained suppress evidence obtain during search of defendants is not the correct answer to his apartment and his post-arrest state- this difficult problem. See United States v. ments to law enforcement. After defendant Baker, 432 F.3d 1189, 1245 (11th Cir. was convicted at bench trial, he appealed. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 821, Holdings: The Court of Appeals, Barrett, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) Circuit Judge, held that: (finding it was ‘‘improper for the district (1) it was not reasonable for officers to court to shackle the defendants based believe that woman at defendant’s upon what happened in other, unrelated apartment had authority to consent to trials involving different defendants and search, but different charges’’), citing Deck, 544 U.S. (2) defendant knowingly waived his right at 633, 125 S.Ct. 2007. to remain silent following his arrest. Accordingly, we should not dismiss this Affirmed in part, reversed in part, and appeal. We should issue a supervisory writ remanded. of mandamus to require individualized decision-making before a district court may 1. Criminal Law O1139, 1158.12 impose full restraints in the courtroom on In reviewing a district court’s denial pretrial defendants who are still presumed of a motion to suppress, the Court of Ap- innocent. peals reviews the district court’s legal conclusions de novo and its underlying factual determinations for clear error. , 2. Criminal Law O1158.12 In reviewing a district court’s denial of a motion to suppress, the Court of Ap- peals gives special deference to the district

000188 1142 915 FEDERAL REPORTER, 3d SERIES

court’s credibility determinations because the time they sought consent, not facts the resolution of a motion to suppress is that came to light after the search began. almost always a fact-specific inquiry, and it U.S. Const. Amend. 4. is the district court which heard the testi- O mony and observed the witnesses at the 9. Searches and Seizures 173.1 suppression hearing. If officers do not know enough to reasonably conclude that the third party has 3. Searches and Seizures O24 authority over the premises, they have a The Fourth Amendment’s warrant re- duty to inquire further before they can quirement for searches is subject to sever- rely on her consent to the search. U.S. al ‘‘carefully defined’’ exceptions. U.S. Const. Amend. 4. Const. Amend. 4. O 4. Searches and Seizures O171 10. Searches and Seizures 177, 181 One exception from the Fourth It was not reasonable for officers to Amendment’s warrant requirement for believe that woman at defendant’s apart- searches is consent from a person with ment had authority to consent to search, actual or apparent authority to give it. and thus officers’ warrantless search of U.S. Const. Amend. 4. apartment pursuant to woman’s consent 5. Searches and Seizures O174 violated Fourth Amendment; officers, having already arrested defendant, knew that When a person allows a third party to woman had been alone in apartment for exercise authority over his property, he assumes the risk that the third party about 45 minutes, woman was wearing might permit access to others, including bathrobe and appeared sleepy when she government agents seeking to search the answered door, and officers did not inquire property. U.S. Const. Amend. 4. who woman was, what her relationship to defendant was, why she was in apartment, O 6. Searches and Seizures 173.1 how long she had been in apartment, or Apparent authority to consent to a whether she lived there. U.S. Const. search exists when the facts available to Amend. 4. the officer at the moment warrant a man of reasonable caution in the belief that the 11. Criminal Law O411.91 consenting party had authority over the A defendant’s statement during a cus- premises, even if the person actually had todial interrogation is inadmissible at trial no such authority. U.S. Const. Amend. 4. unless the prosecution can establish that 7. Searches and Seizures O173.1 the accused in fact knowingly and volun- In the context of apparent authority tarily waived Miranda rights when mak- to consent to a search, an officer might ing the statement. reasonably believe that a third party has 12. Criminal Law O411.92 authority over certain property if the third Knowing waiver of Miranda rights party appears to have joint access or control for most purposes. U.S. Const. requires a full awareness of both the na- Amend. 4. ture of the right being abandoned and the consequences of the decision to abandon it. 8. Searches and Seizures O173.1 O To determine whether the officers’ be- 13. Criminal Law 411.97 lief as to a person’s authority to consent to Defendant knowingly waived his right a search was reasonable, the Court of Ap- to remain silent following his arrest, al- peals considers what the officers knew at though defendant refused to sign form ac-

000189 U.S. v. TERRY 1143 Cite as 915 F.3d 1141 (7th Cir. 2019)

knowledging Miranda rights, where quiet arrest. They waited for him to return agents read defendant his Miranda rights, home from taking his son to school one defendant’s education and familiarity with morning, arrested him when he got out of criminal justice system suggested that he his car, and took him to the DEA’s Chica- understood those rights when read to him, go field division for questioning. and defendant was thereafter willing to A few agents remained behind. Two of speak with agents. U.S. Const. Amend. 5. them knocked on the door of Terry’s apartment, and a woman answered, wear- Appeal from the United States District ing a bathrobe and looking sleepy. The Court for the Northern District of Illinois, agents identified themselves, explained Eastern Division. No. 11 CR 887-3—Ron- that they had just arrested Terry, and ald A. Guzman´ , Judge. asked to come inside. They didn’t ask the Jared Jodrey, Attorney, Office of the woman who she was, how she was related United States Attorney, Chicago, IL, for to Terry, or whether she lived at the Plaintiff-Appellee. apartment. Beau B. Brindley, Attorney, Michael J. Without hesitation, the woman let the Thompson, Attorney, Law Offices of Beau agents in, and they immediately presented B. Brindley, Chicago, IL, for Defendant- her with a consent-to-search form. After Appellant. she both read the form and had it read aloud to her, she signed it, and the search Before WOOD, Chief Judge, and began. Only then, after the search was SYKES and BARRETT, Circuit Judges. underway, did the agents ask the woman who she was. She identified herself as Ena BARRETT, Circuit Judge. Carson, the mother of Terry’s son. She Is it reasonable for officers to assume explained that her son lived at Terry’s that a woman who answers the door in a apartment, but she did not. Nevertheless, bathrobe has authority to consent to a the agents continued the search for rough- search of a male suspect’s residence? We ly the next hour. They recovered letters hold that the answer is no. The officers addressed to Terry showing proof of resi- could reasonably assume that the woman dence, four cell phones, and a suspected had spent the night at the apartment, but drug ledger. that’s about as far as a bathrobe could take them. Without more, it was unreason- Meanwhile, two DEA agents conducted able for them to conclude that she and the a post-arrest interview of Terry back at suspect shared access to or control over the field office. Before asking any ques- the property. tions, the agents read Terry his Miranda rights, which were also spelled out on an I. advice-of-rights form. The agents signed In February 2012, a team of agents from the form, but Terry refused to do so. the Drug Enforcement Agency (DEA) exe- When asked if he understood his rights, cuted an arrest warrant for Dimitris Terry Terry explained that ‘‘he was not going to related to his role in a conspiracy to pos- sign the form or initial it; that, you know, sess and distribute heroin. The agents this wasn’t his first go-around with law didn’t want others to know that Terry had enforcement TTT but he was willing to been arrested because they hoped to se- talk.’’ The agents understood Terry’s cure his cooperation in the broader investi- statement to mean that he had prior expe- gation; thus, they planned a quick and rience with law enforcement, understood

000190 1144 915 FEDERAL REPORTER, 3d SERIES his rights, and was knowingly and volun- encounters with law enforcement—he has tarily waiving them by agreeing to talk been arrested at least seventeen times with the agents. So they wrote ‘‘Verbal since he turned eighteen—as well as his Only’’ on the advice-of-rights form, indicat- level of education and success in business. ing that Terry ‘‘gave verbal consent that The court thought that this was strong he understood the form.’’ Terry then an- evidence that Terry understood his rights. swered the agents’ questions about the And because he understood his rights, the case and made incriminating statements court concluded that Terry’s answers to about his role in the conspiracy to distrib- the agents’ questions provided ‘‘a clear and ute heroin. unequivocal waiver of his right to remain Terry was charged with possession, dis- silent.’’ tribution, and conspiracy to possess and After a bench trial, the district court distribute heroin in violation of 21 U.S.C. found Terry guilty and sentenced him to §§ 841(a) and 846. He moved to suppress 168 months’ imprisonment. Terry asks us both the evidence recovered from the to vacate his conviction on the ground that search and his post-arrest statements to the district court erroneously denied his the agents. First, Terry argued that the motions to suppress. search was unlawful because Carson had neither actual nor apparent authority to II. consent to it—all the agents knew at the time of consent was that she answered the [1, 2] In reviewing a district court’s de- door at Terry’s apartment wearing a bath- nial of a motion to suppress, we review the robe. Had the agents simply inquired, Ter- district court’s legal conclusions de novo ry said, they would have discovered that and its underlying factual determinations Carson did not live at the apartment. Sec- for clear error. United States v. Richards, ond, Terry claimed that he had not under- 741 F.3d 843, 847 (7th Cir. 2014). We give stood that he was waiving his Miranda ‘‘special deference to the district court’s rights when he answered the agents’ ques- credibility determinations because the res- tions. Thus, he argued, the waiver was olution of a motion to suppress is almost invalid and his post-arrest statements always a fact-specific inquiry, and it is the should be suppressed. district court which heard the testimony After an evidentiary hearing at which and observed the witnesses at the suppres- the agents and Terry testified, the district sion hearing.’’ United States v. Burnside, court denied both motions. As to the first, 588 F.3d 511, 517 (7th Cir. 2009). the court determined that it was reasonable for the agents to assume that Carson A. lived at the residence and had authority to [3–5] As a rule, the Fourth Amend- consent to the search because (1) she was ment requires the government to get a permitted to be home when Terry was not; warrant before searching someone’s prop- (2) her son resided at the apartment; (3) erty. U.S. CONST. amend. IV; see also Unit- the bathrobe ‘‘indicated she was more than ed States v. Basinski, 226 F.3d 829, 833 a mere temporary guest’’; and (4) she con- (7th Cir. 2000). But the warrant require- sented to the search without hesitation. ment is subject to several ‘‘carefully de- On the second motion, the court found fined’’ exceptions. See Coolidge v. New Terry’s testimony that he did not know Hampshire, 403 U.S. 443, 474, 91 S.Ct. that his statements could be used against 2022, 29 L.Ed.2d 564 (1971). One is con- him ‘‘simply not credible’’ given his many sent from a person with actual or apparent

000191 U.S. v. TERRY 1145 Cite as 915 F.3d 1141 (7th Cir. 2019) authority to give it. Basinski, 226 F.3d at ‘ignorance is bliss.’ ’’ 4 WAYNE R. LAFAVE, 833–34. When a person allows a third par- SEARCH AND SEIZURE § 8.3(g) (5th ed. 2018). ty to exercise authority over his property, [10] When the search began, the he ‘‘assume[s] the risk that the third party agents had four facts: Terry left Carson might permit access to others, including alone in the apartment for about forty-five government agents.’’ Id. at 834 (citing minutes, Carson was wearing a bathrobe, United States v. Matlock, 415 U.S. 164, she appeared sleepy, and she consented to 171 n.7, 94 S.Ct. 988, 39 L.Ed.2d 242 the search without hesitation. They did not (1974)). know who she was, what her relationship [6, 7] The government does not claim to Terry was, why she was in the apart- that Carson had actual authority to con- ment, how long she had been in the apart- sent to the search of Terry’s apartment. ment, or whether she lived there. At that The dispute is about whether she had ap- point, the agents did not know that Carson parent authority, which exists when ‘‘the was the mother of Terry’s child—so it was facts available to the officer at the moment wrong for the district court to rely on that TTT ‘warrant a man of reasonable caution fact in evaluating Carson’s apparent au- in the belief’ that the consenting party had thority. See Alexander, 573 F.3d at 474 authority over the premises,’’ even if the (explaining that facts that come to light person actually had no such authority. Illi- after a search begins cannot support ap- nois v. Rodriguez, 497 U.S. 177, 188, 110 parent authority to consent). S.Ct. 2793, 111 L.Ed.2d 148 (1990) (altera- The facts that the agents had made it tion in original) (citation omitted). An offi- reasonable for them to conclude that Car- cer might reasonably believe that a third son had spent the night at Terry’s apart- party has authority over certain property ment. That might have been an indication if the third party appears to have ‘‘joint that she lived with him, but there are access or control for most purposes.’’ Unit- multiple other possibilities. She could have ed States v. Ryerson, 545 F.3d 483, 487 been a one-time guest, a periodic guest, a (7th Cir. 2008) (quoting Matlock, 415 U.S. friend or relative visiting for a couple of at 171 n.7, 94 S.Ct. 988). days—or she may have had some other [8, 9] To determine whether the offi- relationship to Terry. And the existence of cers’ belief was reasonable, we consider so many other equally plausible possibili- ‘‘what the officers knew at the time they ties should have prompted the agents to sought consent, not facts that came to light ‘‘inquire further.’’ See Goins, 437 F.3d at after the search began.’’ United States v. 648. Alexander, 573 F.3d 465, 474 (7th Cir. But they did not. Instead, they thought 2009) (emphasis added). If the officers did that it was safe to assume that Carson had not know enough to reasonably conclude spent the night in the apartment, therefore that the third party had authority over the lived in the apartment, therefore had joint premises, they had ‘‘a duty to inquire fur- access to or control over the apartment for ther’’ before they could rely on her consent most purposes, and therefore had the au- to the search. United States v. Goins, 437 thority to consent to the search. This kind F.3d 644, 648 (7th Cir. 2006). As one trea- of inferential pileup falls short of the rea- tise puts it: ‘‘sometimes the facts known by sonableness required by the Fourth the police cry out for further inquiry, and Amendment. See Rodriguez, 497 U.S. at when this is the case it is not reasonable 188–89, 110 S.Ct. 2793. A bathrobe alone for the police to proceed on the theory that does not clothe someone with apparent

000192 1146 915 FEDERAL REPORTER, 3d SERIES authority over a residence, even at 10:00 in has made a deliberate choice to relinquish the morning. the protection those rights afford,’’ id. at Because the government has failed to 385, 130 S.Ct. 2250. Consistent with that demonstrate that an exception to the war- principle, it concluded that the defendant rant requirement applies, the evidence dis- knowingly waived his rights because (1) his covered as a result of the search must be understanding of English was sufficient suppressed. See Basinski, 226 F.3d at 834. evidence that he understood the rights that had been presented, id. at 385–86, 130 B. S.Ct. 2250, and (2) the fact that he an- [11, 12] Terry also argues that the swered the detective’s questions was a suf- statements that he made in his post-arrest ficient ‘‘course of conduct indicating waiv- interview should be suppressed because he er,’’ id. at 386, 130 S.Ct. 2250 (citation did not knowingly waive his Miranda omitted). rights by choosing to speak with the [13] We agree with the district court agents. A defendant’s ‘‘statement during a that Terry’s education, sophistication, and custodial interrogation is inadmissible at trial unless the prosecution can establish familiarity with the criminal justice system that the accused ‘in fact knowingly and provides sufficient evidence that he under- voluntarily waived Miranda rights’ when stood his rights when the agents read making the statement.’’ Berghuis v. them to him. See id. at 385–86, 130 S.Ct. Thompkins, 560 U.S. 370, 382, 130 S.Ct. 2250; see also Burnside, 588 F.3d at 517. 2250, 176 L.Ed.2d 1098 (2010) (citation and And as in Berghuis, Terry’s willingness to alteration omitted). Knowing waiver re- speak with the agents was a ‘‘course of quires ‘‘a full awareness of both the nature conduct indicating waiver,’’ notwithstand- of the right being abandoned and the con- ing his refusal to sign the advice-of-rights sequences of the decision to abandon it.’’ form. 560 U.S. at 386, 130 S.Ct. 2250 (cita- Id. (citation omitted). Terry notes that he tion omitted). Thus, the district court cor- never explicitly waived his right to remain rectly concluded that Terry knowingly silent and points to his refusal to sign the waived his right to remain silent and prop- advice-of-rights form as evidence that he erly denied his motion to suppress. did not knowingly waive his Miranda * * * rights. But this argument is squarely foreclosed by Supreme Court precedent. The evidence discovered in Terry’s apartment was the fruit of an unconstitu- In Berghuis v. Thompkins, the defen- tional search, so the district court should dant refused to sign a form acknowledging have granted his motion to suppress it. his Miranda rights. He remained largely But the district court properly denied Ter- silent during questioning that lasted about ry’s motion to suppress his post-arrest three hours, but he ultimately confessed to statements. We therefore REVERSE in the crime. Id. at 375–76, 130 S.Ct. 2250. part, VACATE the conviction, and RE- The Supreme Court rejected his Fifth MAND for proceedings consistent with Amendment challenge. It explained that a this opinion. knowing waiver can be express or implied, id. at 384, 130 S.Ct. 2250, and that ‘‘[a]s a general proposition, the law can presume that an individual who, with a full under- , standing of his or her rights, acts in a manner inconsistent with their exercise

000193 United States v. Truitt, --- F.3d ---- (2019)

Admissibility 2019 WL 4315001 If the district court judge applied the proper legal Only the Westlaw citation is currently available. framework for determining the admissibility of United States Court of Appeals, Seventh Circuit. expert testimony, then Court of Appeals reviews the decision to exclude evidence for abuse of UNITED STATES of America, Plaintiff-Appellee, discretion. Fed. R. Evid. 702. v. Cases that cite this headnote Cathy Nicole TRUITT, Defendant-Appellant.

No. 18-2324 [3] Criminal Law | Necessity and scope of proof Argued February 21, 2019 Criminal Law | Reception and Admissibility of Evidence Decided September 12, 2019 District judges have wide discretion over Synopsis decisions to admit or exclude evidence; Court of Background: Defendant was convicted in United States Appeals will reverse only if no reasonable person District Court for the Northern District of Illinois, John Z. would take the judge’s view of the matter. Lee, J., of making false claims against the United States and theft of government funds. Defendant appealed. Cases that cite this headnote

[4] Criminal Law Holdings: The Court of Appeals, Sykes, Circuit Judge, held Subjects of Expert Testimony that: Criminal Law Basis of Opinion [1] defendant's proffered expert, a forensic psychologist, was Rule governing the admission of expert not qualified to testify as an expert on charismatic groups, testimony entrusts trial judges with a such as defendant's church, and gatekeeping role designed to ensure that expert testimony is both relevant and reliable. Fed. R. [2] defendant's proffered expert's methodology was Evid. 702. inadequate and thus not scientifically reliable. Cases that cite this headnote

Affirmed. [5] Criminal Law Determination of question of competency Criminal Law West Headnotes (14) Necessity and sufficiency The district court judge must determine [1] Criminal Law whether an expert is qualified and whether his Review De Novo methodology is scientifically reliable. Fed. R. Court of Appeals reviews de novo whether the Evid. 702. district court judge applied the proper legal Cases that cite this headnote framework for determining the admissibility of expert testimony. Fed. R. Evid. 702. [6] Criminal Law Cases that cite this headnote Knowledge, Experience, and Skill Forensic psychologist with some specialization [2] Criminal Law in certain group dynamics was not qualified to

testify as an expert on charismatic groups, such draws individually to see if he has the adequate as defendant's church, in support of her claim she education, skill, and training to reach them. Fed. laced mens rea for charged offenses of making R. Evid. 702. false claims against United States and theft of government funds, for filing fraudulent tax Cases that cite this headnote returns seeking $300,000 refunds in connection with purported trust funded by United States [11] Criminal Law government to benefit members of her church, Sources of data where psychologist had no experience with Methodology of forensic psychologist who was charismatic groups. Fed. R. Evid. 702. purported expert on charismatic groups, in doing Cases that cite this headnote little more to learn about defendant's church than interview defendant herself, was inadequate and thus not scientifically reliable, and thus [7] Criminal Law expert's proffered opinion that defendant was Knowledge, Experience, and Skill a member of a cult-like organization that In determining whether to admit expert indoctrinated its members was properly excluded testimony, the court asks not whether an expert from defendant's trial for making false claims is qualified in general but whether he is qualified against United States and theft of government to answer a specific question. Fed. R. Evid. 702. funds, for filing fraudulent tax returns seeking $300,000 refunds in connection with purported Cases that cite this headnote trust funded by United States government to benefit members of her church; a psychologist [8] Criminal Law who purported to give an opinion about group Knowledge, Experience, and Skill dynamics should have interviewed more than a single self-interested group member, especially Criminal Law when other experts in the field would have done Necessity and sufficiency so. Fed. R. Evid. 702. Nothing in rule governing the admission of expert testimony or Daubert categorically bars Cases that cite this headnote a generalist from opining on more specialized topics. Fed. R. Evid. 702. [12] Criminal Law Cases that cite this headnote Matters involving scientific or other special knowledge in general The overarching subject of the analysis when [9] Criminal Law deciding whether to admit expert testimony is Bodily and mental condition the scientific validity, and thus the evidentiary A general physician may, depending on his relevance and reliability, of the principles that experience, be qualified to testify as an expert underlie a proposed expert submission. Fed. R. about heart conditions regardless of whether he Evid. 702. is a licensed cardiologist. Fed. R. Evid. 702. Cases that cite this headnote Cases that cite this headnote

[13] Criminal Law [10] Criminal Law Basis of Opinion Knowledge, Experience, and Skill The focus when determining the reliability A generalist is not necessarily qualified to testify of proposed exert testimony must be solely as an expert on specialized subjects, as the on principles and methodology, not on the court must look at each of the conclusions he conclusions that they generate. Fed. R. Evid. 702.

Fogel, who proposed to testify that Truitt was a member Cases that cite this headnote of a “charismatic group”—a cult-like organization that indoctrinates its members. Truitt intended to offer this [14] Criminal Law testimony to bolster an argument that she lacked the requisite Necessity and sufficiency mens rea for the crimes. The district judge excluded the testimony under Daubert v. Merrell Dow Pharmaceuticals, Daubert identifies a number of factors a court Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), might consider when determining the reliability and Rules 702 and 704(b) of the Federal Rules of Evidence. of proffered expert testimony, including whether the methods have been tested or subjected to peer That ruling was sound. The judge reasonably concluded that review and whether they are generally accepted Dr. Fogel lacked the relevant expertise and his methods were in the field, but the list is not exhaustive. Fed. R. not reliable. We affirm the judgment. Evid. 702.

Cases that cite this headnote I. Background

In March 2009 Truitt joined the Moorish Science Temple of Appeal from the United States District Court for the Northern America, which views itself as a sovereign “ecclesiastical District of Illinois, Eastern Division. No. 14 CR 718 — John government.” The Moorish Temple teaches that neither the Z. Lee, Judge states nor the federal government have any authority over its members, who instead purport to hold something akin Attorneys and Law Firms to diplomatic immunity. Before initiation into the Temple, members fill out a series of forms designed to put the Helene B. Greenwald, Attorney, Office of the United States government on notice of their new nationality. After a Attorney, Chicago, IL, for Plaintiff-Appellee. ceremony, the Temple provides members with Moorish Lisa Lundell Wood, Attorney, Lisa Wood Law, LLC, Chicago, identification cards, license plates, and other documents IL, for Defendant-Appellant. backing up their purported change in citizenship.

Before Easterbrook, Sykes, and Barrett, Circuit Judges. Truitt quickly became an active member of a Moorish temple on Chicago’s west side. The group was small—at most Opinion about 25 members—and Truitt spent as many as 40 hours a week on church-related activities. She also developed Sykes, Circuit Judge. a close relationship with the local leader, Queen Akefe *1 In late 2009 Cathy Truitt filed seven nearly identical Muzari El (“Queen”). Three months after Truitt joined, tax returns, each falsely claiming that she was entitled to Queen told her congregants that the Temple’s founding a $300,000 refund. The IRS identified six of the seven as prophet had established a trust funded by the United States fraudulent, but for unknown reasons it approved one and government and designed to benefit Moorish nationals. To sent her a check for the full amount. Within weeks the prepare her members to collect funds from the trust, Queen IRS recognized the error and demanded that she return the led them through a variety of rituals and ceremonies. She then funds. She did not respond. Instead, she spent the money instructed them to use symbolic numbers to claim a refund on on jewelry, a condominium, tickets to sporting events, and a a series of IRS Form 1041s—the tax return used by trusts and business investment. The IRS launched an investigation, and estates. Some of the numbers were provided by a church elder; eventually she was indicted for making false claims against others came from numerology. Queen told Truitt and other the United States in violation of 18 U.S.C. § 287 and theft Moors that if the government sent them money in response of government funds in violation of 18 U.S.C. § 641. A jury to the tax returns, they were to tithe 25% back to the Temple. found her guilty as charged. Queen also warned her followers to expect “pushback” from the government—attempts to block the Moors from collecting Truitt’s appeal is limited to a single issue. She challenges despite their legitimate entitlement. This resistance, Queen the exclusion of her expert witness, psychologist Dr. Michael said, signified nothing about the legitimacy of their right to

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000196 3 United States v. Truitt, --- F.3d ---- (2019) payment. She instructed them to refile the 1041 forms if they requisite mens rea because she truly believed that the Moorish received a frivolous-filing notice. trust existed and that the 1041 forms were a legitimate way to access it. *2 In August 2009 Truitt filed three identical 1041 forms for the years 2006, 2007, and 2008. Each one claimed entitlement To support this defense, she intended to offer the testimony to a refund because an excess of $304,204.30 in taxes had of Dr. Michael Fogel, a forensic psychologist. Dr. Fogel been withheld from the income of a trust in her name. In truth, has extensive experience evaluating criminal defendants, there was no trust and no taxes were withheld at all. generally focusing on issues like insanity, competence to stand trial, and risk of violence. In his report summarizing As Queen predicted, the IRS pushed back. It sent Truitt letters his expertise and proposed testimony, Dr. Fogel claimed to informing her that each of the three 1041 forms was frivolous. be an expert on “charismatic groups,” which he defined as a In the back-and-forth that followed, Truitt filed four more “type of cultic group” that influences its members through “a identical 1041 forms, while the IRS responded with more shared belief system, a high level of social cohesiveness, a notifications that the forms were meaningless. But in the strong influence to comply with the group’s behavioral norms, midst of this flurry of filings and responses, on January 5, and assigning charismatic and sometimes divine power to 2010, the IRS issued a refund check for the full $304,204.30 the group or its leadership.” He distinguished this from other refund Truitt claimed for one of the tax years. On January 19 types of cultic groups that use physical coercion. she opened a Post Office Box in the name of “Maji Atarah El,” and the next day she deposited the Treasury check into *3 The government moved in limine to exclude Dr. Fogel’s a new account at Wachovia Bank in the name of the “Maji testimony. The judge granted the motion. His first concern Atarah El Trust.” She listed the Post Office Box as the account was that Dr. Fogel might try to testify directly that Truitt holder’s address. truly believed the 1041 forms she filed were legitimate. Rule 704(b) forbids that kind of expert testimony: “In a The IRS noticed the error almost immediately, and within criminal case, an expert witness must not state an opinion five weeks Truitt received notice that she was required to about whether the defendant did or did not have a mental return the money. She instead rapidly depleted the funds. state or condition that constitutes an element of the crime By this time she was less involved with the Temple, and charged or of a defense.” So the judge narrowly construed Queen excommunicated her for lack of attendance. So rather Dr. Fogel’s proposed opinion to say only that Truitt is the than tithe 25% of the sum back to the Temple, Truitt gave type of person who is susceptible to indoctrination. Even as roughly $75,000 of her refund to several Moors she was still narrowed, however, the judge ruled that Dr. Fogel failed to in touch with. She then placed $200,000 in several accounts identify the scientific basis he used to reach his conclusions. in her father’s name. Those funds quickly disappeared. They paid for, among other things, jewelry, a down payment on The judge gave the defense an opportunity to address these a Michigan Avenue condominium, Chicago White Sox and concerns in an amended submission. In an addendum to his Bulls tickets, and an investment in a diamond business. report, Dr. Fogel proposed to give two opinions: (1) that the Notably, almost all of this activity occurred after the IRS Moorish Temple is a charismatic group under his definition notified her of the mistake. By April 2010 the Wachovia and (2) that charismatic groups can cause a person to ignore account held only about $200. his moral compass and do things he otherwise wouldn’t.

Throughout this period the IRS continued to send Truitt The judge rejected the reformulated opinions for three notices that it had mistakenly sent the refund check. When two reasons. First, he found that Dr. Fogel lacked the expertise agents later visited her Michigan Avenue home, she refused to needed to speak authoritatively about charismatic groups. acknowledge herself by name. When they showed her a copy Among other things, Dr. Fogel had worked on only a single of the refund check, she denied ever having seen it. case involving religious themes of any kind. His expertise is instead in psychological diagnosis, but Rule 704(b) would In 2014 a grand jury indicted Truitt on four counts of block any direct testimony about Truitt’s mental condition. submitting false claims in violation of 18 U.S.C. § 287 and Second, the judge held that Dr. Fogel’s methods were one count of theft from the United States in violation of 18 unreliable. Most concerning, Dr. Fogel deviated dramatically U.S.C. § 641. Truitt’s primary defense was that she lacked the from the methods of other experts in the field—indeed, of

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 000197 4 United States v. Truitt, --- F.3d ---- (2019) the very expert whose work he used to educate himself on 2010), that limitation is all but dispositive: Dr. Fogel lacks charismatic groups. Third, and as an independent ground of experience with charismatic groups, so he shouldn’t give decision, the judge excluded Dr. Fogel’s testimony under Rule expert testimony on that subject. 403 of the Federal Rules of Evidence because its probative value was slight compared to the substantial risk of jury *4 [8] [9] [10] To be sure, nothing in Rule 702 confusion. or Daubert categorically bars a generalist like Dr. Fogel from opining on more specialized topics. Hall v. Flannery, The case proceeded to trial, and the jury convicted Truitt on 840 F.3d 922, 929 (7th Cir. 2016) (“Ordinarily, courts all counts. This appeal followed. impose no requirement that an expert be a specialist in a given field.” (quoting Gayton, 593 F.3d at 617)). To give an example, a general physician may, depending on his experience, be qualified to testify about heart conditions II. Discussion regardless of whether he is a licensed cardiologist. But that [1] [2] [3] Truitt’s sole argument on appeal is a challenge doesn’t mean a generalist is necessarily qualified to speak to the exclusion of Dr. Fogel’s testimony. A split standard on specialized subjects: “[W]e must look at each of the of review applies. We review de novo whether the judge conclusions he draws individually to see if he has the adequate applied the proper legal framework for determining the education, skill, and training to reach them.” Gayton, 593 F.3d admissibility of expert testimony. United States v. Brown, 871 at 617. F.3d 532, 536 (7th Cir. 2017). If the judge applied the proper legal framework, then we review the decision to exclude So Truitt is correct when she says that Dr. Fogel should not evidence for abuse of discretion. Id. “District judges have be excluded merely because he is a generalist. But that’s not wide discretion over decisions to admit or exclude evidence; why the judge excluded his testimony. He did so because we will reverse only if no reasonable person would take the Dr. Fogel’s experience as a general psychologist in no way judge’s view of the matter.” Id. qualified him to answer specific questions about the religious themes at play in this case. Nor did his experience with other [4] [5] Rule 702 entrusts trial judges with a gatekeeping kinds of group dynamics prepare him for the question at role designed “to ensure that expert testimony is both relevant hand. Everyone agrees that Dr. Fogel had no experience with and reliable.” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, charismatic groups, so the judge quite reasonably concluded 893 (7th Cir. 2011). To that end, the judge must determine that he was not qualified to give this proposed testimony. whether the expert is qualified, whether his methodology is scientifically reliable, and whether the proposed testimony [11] [12] [13] [14] The judge also ruled that Dr. Fogel’s “will help the trier of fact to understand the evidence or to methodology was inadequate and thus not scientifically determine a fact in issue.” FED. R. EVID. 702; see also reliable. This ruling too lies well within the judge’s discretion. Daubert, 509 U.S. at 592, 113 S.Ct. 2786 (explaining that The “overarching subject” of Rule 702 analysis “is the the latitude given to experts under the Rules of Evidence scientific validity—and thus the evidentiary relevance and “is premised on an assumption that the expert’s opinion will reliability—of the principles that underlie a proposed [expert] have a reliable basis in the knowledge and experience of his submission. The focus, of course, must be solely on principles discipline”). and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 594–95, 113 S.Ct. 2786. Daubert [6] [7] The judge properly applied this legal framework, so identifies a number of factors a court might consider, our review of his decision to exclude Dr. Fogel’s testimony including whether the methods have been tested or subjected is deferential. Turning first to the question of qualifications, to peer review and whether they are generally accepted in Dr. Fogel is a forensic psychologist with some specialization the field. See id. at 593–94, 113 S.Ct. 2786. But the list is in certain group dynamics—for instance, he has expertise in not exhaustive. See id. at 593, 113 S.Ct. 2786 (“Many factors the effect of peer pressure on juveniles serving probation— will bear on the inquiry, and we do not presume to set out a but he has no relevant experience with charismatic groups. definitive checklist or test.”). Because we ask not whether an expert “is qualified in general” but whether he is qualified “to answer a specific Here the judge was concerned that Dr. Fogel did little to question,” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. learn about the Moorish Temple other than interviewing Truitt

herself. That’s a fairly significant shortcoming in a case about specific analysis. The judge reasonably concluded that an group dynamics: Dr. Fogel’s definition of a “charismatic expert who purports to give an opinion about group dynamics group” requires evaluating whether there was a “shared belief should have interviewed more than a single self-interested system,” a “high level of social cohesiveness,” and “a strong group member, especially when other experts in the field 1 influence to comply with the group’s behavioral norms.” The would have done so. judge reasonably concluded that an evaluation of those three factors required at least a minimal inquiry into the experiences 1 The judge also held that Dr. Fogel’s reliance on Dr. Todd of other group members. Yet Dr. Fogel spoke to Truitt alone. DuBose, another expert, conflicted with our decisions Granted, he attempted to contact Queen and one other elder. in Dura Automotive Systems of Indiana, Inc. v. CTS But he made no effort to contact anyone else associated with Corp., 285 F.3d 609 (7th Cir. 2002), and In re James the Moorish Temple. Compounding the problem, Truitt had Wilson Associates, 965 F.2d 160 (7th Cir. 1992). Those a strong self-interest in convincing Dr. Fogel that the church cases hold that while one expert may rely on another could and did trick her into filing false claims. expert’s work, he cannot serve as a mere mouthpiece in order to circumvent the Rules of Evidence. See Dura Auto. Sys. of Ind., Inc., 285 F.3d at 611–14; In re James Curiously, Dr. Fogel omitted these steps in the analysis even Wilson Assocs., 965 F.2d at 172–73. We don’t need to though Dr. Marc Galanter—the expert in charismatic groups address the application of Dura and Wilson Associates whose work Dr. Fogel relied on most to learn about the subject here: regardless of whether Dr. Fogel leaned too heavily —would have done far more. When Dr. Galanter identifies on Dr. DuBose, the methods he used were unreliable, so charismatic groups in his own work, he first circulates written exclusion was appropriate. surveys, then conducts extensive interviews with a large In short, the judge was well within his discretion to exclude number of members, and finally spends significant time Dr. Fogel’s testimony—both because the witness had limited observing the group in action. The judge was justifiably experience with the specific topic at hand and because he used concerned that Dr. Fogel relied so heavily on Dr. Galanter’s questionable methods. The judge’s Rule 702 analysis was on work but inexplicably applied a watered-down version of his solid ground, so we have no need to address his alternative methodology. Rule 403 ruling that the risk of jury confusion substantially outweighed the probative value of Dr. Fogel’s testimony. *5 Truitt responds that experts often rely on interviews with defendants, sometimes exclusively so. That may be AFFIRMED appropriate when a doctor makes a medical diagnosis. See Walker v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir. 2000). But Dr. Fogel’s amended report disavowed any intention to All Citations make a medical diagnosis in light of the Rule 704(b) bar to that kind of expert testimony. And Daubert calls for case- --- F.3d ----, 2019 WL 4315001

States v. Emerson, 501 F.3d 804, 813 (7th dental presence at the four other banks Cir. 2007). Federal Rule of Evidence 901 just before they were robbed. It heard five states that ‘‘[t]o satisfy the requirement of tellers—from the Indiana robberies authenticating or identifying an item of alone—identify Brewer. The jury also evidence, the proponent must produce evi- heard about the compelling evidence the dence sufficient to support a finding that government recovered from Brewer and the item is what the proponent claims it Pawlak’s home, including titles for vehicles is.’’ Fed. R. Evid. 901(a). Rule 901 does not that matched the getaway cars. The gov- expressly describe how videotape evidence ernment’s case would not have been made may be authenticated, but we have held significantly less persuasive absent the that the government can authenticate a State Bank footage. See, e.g., United recording ‘‘by offering testimony of an eye- States v. Jett, 908 F.3d 252, 267 (7th Cir. witness that the recording accurately re- 2018). flects’’ the events as they occurred. United States v. Eberhart, 467 F.3d 659, 667 (7th III. Conclusion Cir. 2006); see also United States v. Cejas, There was no Fourth Amendment viola- 761 F.3d 717, 723 (7th Cir. 2014). That is tion in the task force’s execution of the what the government did here. It called warrant. There was no error in the district Sarah Felzer to testify, the teller on duty court’s evidentiary decisions. We AFFIRM when Brewer visited State Bank just be- the district court’s judgment. fore the robbery. She testified that the footage ‘‘fairly and accurately depict[ed] the events as they happened’’ that day. , On cross-examination, Felzer’s recollection seemed foggier. She testified that she did not have an ‘‘independent recollection’’ of that day, and she seemed to suggest that she could not distinguish that day UNITED STATES of America, from any other day that Brewer visited the Plaintiff-Appellee, bank. Brewer is right that this testimony was inconsistent with Felzer’s direct-exam- v. ination testimony. But he is wrong to think Josue VARGAS, Defendant-Appellant. it required exclusion of the footage. Fel- zer’s initial testimony was clear and suffi- No. 18-1250 cient under Rule 901, see Eberhart, 467 United States Court of Appeals, F.3d at 667, so the district court did not Seventh Circuit. abuse its discretion in finding that the government met its threshold burden. It Argued November 6, 2018 fell to the jury to decide ‘‘the evidence’s Decided February 5, 2019 true authenticity and probative value.’’ Background: Defendant was convicted in Fluker, 698 F.3d at 999. the United States District Court for the [20] Even if it were otherwise, we Northern District of Illinois, No. 14 CR would find harmless error. Fed. R. Crim. 579, Charles R. Norgle, J., of two cocaine P. 52(a). Take away the footage of Brewer offenses. After defendant’s motion for new at State Bank and the jury still heard trial was denied, 2016 WL 4059190, he about his confession and his all-too-coinci- appealed.

000200 418 915 FEDERAL REPORTER, 3d SERIES

Holdings: The Court of Appeals, Easter- be set aside until their resolution is un- brook, Circuit Judge, held that: avoidable.

(1) officers’ warrantless entry into parking 6. Constitutional Law O976 lot, where defendant’s truck was Before taking up a constitutional is- parked, did not violate defendant’s sue, a federal court should satisfy itself Fourth Amendment rights, and that there is no available non-constitutional (2) requirement that defendant disclose ground of decision. expert witness and summary of his testimony to prosecution applied to 7. Criminal Law O627.6(4), 629(11) witness whom prosecution already dis- At trial for cocaine offenses, require- closed but later decided not to call in ment that defendant disclose expert wit- its case-in-chief. ness and summary of his testimony to Affirmed. prosecution applied to witness whom prosecution already disclosed but later decided not to call in its case-in-chief. Fed. R. O 1. Searches and Seizures 25.1 Crim. P. 16(b)(1)(C). Police officers’ warrantless entry into O parking lot, where defendant’s truck was 8. Constitutional Law 4593 parked, did not violate defendant’s Fourth There is no general due process right Amendment rights, where defendant nei- to discovery in a criminal case. U.S. ther owned parking lot nor had leasehold Const. Amend. 5. interest in any particular part of it, defen- 9. Constitutional Law O4593 dant was entitled to park his truck in any open space but could not exclude anyone The Due Process Clause has little to else, and many other people also parked say regarding the amount of discovery there. U.S. Const. Amend. 4. which the parties must be afforded in a criminal case. U.S. Const. Amend. 5. 2. Searches and Seizures O25.1 O Agents normally do not need probable 10. Criminal Law 627.8(6) cause or a warrant to enter the vestibule Sanctions for violating discovery rules of a multi-tenant building. U.S. Const. generally are matters for the rules or stat- Amend. 4. utes.

3. Searches and Seizures O161 11. Constitutional Law O4555 Rights under the Fourth Amendment In criminal cases, the Due Process are personal; only someone whose own Clause deals with only egregious trans- rights have been transgressed is entitled gressions of trial rules and decorum. U.S. to relief. U.S. Const. Amend. 4. Const. Amend. 5.

4. Constitutional Law O976 Courts are obliged to consider statuto- Appeal from the United States District ry and rule-based arguments ahead of con- Court for the Northern District of Illinois, stitutional ones. Eastern Division. No. 14 CR 579—Charles R. Norgle, Judge. 5. Constitutional Law O976 Non-constitutional arguments always Stuart D. Fullerton, Jordan Melissa come first; constitutional contentions must Matthews, Allison A. Ray, Attorneys, Of-

000201 U.S. v. VARGAS 419 Cite as 915 F.3d 417 (7th Cir. 2019) fice of the United States Attorney, Chica- U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 go, IL, for Plaintiff–Appellee. (2012), Vargas observes that an invasion of Beau B. Brindley, Attorney, Law Offices property is as much within the Fourth of Beau B. Brindley, Chicago, IL, for De- Amendment as an invasion of privacy, and fendant–Appellant. he insists that when the agents entered the lot they lacked probable cause—and a Before WOOD, Chief Judge, and parking lot is not a vehicle, so the agents EASTERBROOK and KANNE, Circuit could not benefit from the automobile ex- Judges. ception to the warrant requirement.

EASTERBROOK, Circuit Judge. [2] The argument is a dud, because Convicted of two cocaine offenses, 21 Vargas neither owned the parking lot nor U.S.C. § 841(a)(1), Josue Vargas has been had a leasehold interest in any particular sentenced to 72 months’ imprisonment. His part of it. Vargas was entitled to park his principal appellate argument is that the truck in any open space but not to exclude district judge should have suppressed anyone else. Many other people also packages of that drug seized from his parked there, and each could admit third truck. parties. This is why agents normally do [1] Vargas rented a parking place for not need probable cause or a warrant to his truck in a lot that lacked assigned enter the vestibule of a multi-tenant build- spaces. Agents in Ohio arrested Luis ing. See United States v. Correa, 908 F.3d Hueter as he transported three kilograms 208, 221–22 (7th Cir. 2018). of cocaine that, Hueter asserted, he had [3] The only person whose property purchased from Vargas the day before at interest the agents invaded was the lot’s his parked truck. Hueter described Var- owner, who isn’t complaining—and at all gas, the truck, and the lot. They immedi- events an invasion of the owner’s property ately called agents in Illinois, who entered the lot by following someone through the (or privacy) rights would not entitle Var- gate. Approaching a truck that met Huet- gas to any remedy. Rights under the er’s description, the agents in Chicago sent Fourth Amendment are personal; only a photo to the agents in Ohio; Hueter someone whose own rights have been identified the truck as Vargas’s. A dog was transgressed is entitled to relief. See, e.g., called in and alerted to the odor of drugs. United States v. Payner, 447 U.S. 727, 100 Agents then broke a window of the truck, S.Ct. 2439, 65 L.Ed.2d 468 (1980); United opened the door, and found eight more States v. Sweeney, 821 F.3d 893, 900 (7th kilos of cocaine. Cir. 2016). No more need be said about the search and seizure. Vargas contends that the agents’ and the dog’s entry into the lot violated his All of Vargas’s remaining arguments rights. He does not say that it was improp- concern the conduct of the trial. According er to break into the truck without a war- to Vargas, the judge upbraided his lawyer rant; by the time the agents did this they more often (and more sternly) than the had probable cause, based on Hueter’s prosecution’s lawyer and erred in admit- statements plus confirmation (from the ting or excluding evidence. The district photo and the dog) that they had the right court considered and rejected these argu- truck. But, citing Florida v. Jardines, 569 ments when denying Vargas’s motion for a U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 new trial. 2016 WL 4059190, 2016 U.S. (2013), and United States v. Jones, 565 Dist. LEXIS 99021 (N.D. Ill. July 27, 2016).

000202 420 915 FEDERAL REPORTER, 3d SERIES

Vargas hopes that we will find the conten- issue, a federal court should satisfy itself tions stronger than did the district judge. that there is no available non-constitutional Vargas presents almost all of his argu- ground of decision.’’ There to Care, Inc. v. ment in constitutional terms, asserting Commissioner of the Indiana Department that the judge violated the Due Process of Revenue, 19 F.3d 1165, 1167 (7th Cir. Clause of the Fifth Amendment. He men- 1994) (citing Spector Motor Service, Inc. v. tions Fed. R. Evid. 613 but in the main McLaughlin, 323 U.S. 101, 105, 65 S.Ct. ignores both the Federal Rules of Evi- 152, 89 L.Ed. 101 (1944) ). See also Brock- dence and the Federal Rules of Criminal ett v. Spokane Arcades, Inc., 472 U.S. 491, Procedure. He does not maintain that any 501, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). of these rules is unconstitutional to the We illustrate this by considering one of extent it allowed the judge to proceed as Vargas’s evidentiary arguments—the he did; instead Vargas bypasses the rules strongest one, as it seems to us, but one on in favor of the Constitution. Nor does he which he has missed critical points. contend that the judge transgressed any [7] During discovery, Vargas asked supervisory rule laid down by the Supreme the prosecutor to identify any expert wit- Court or by this court. It is, for him, the nesses and describe the nature of the ex- Constitution or nothing (the invocation of perts’ testimony. The prosecution made a Rule 613 is so cursory that we need not reciprocal demand. One potential witness discuss it), and the Constitution at a high identified by the prosecution was Joseph level of generality rather than any con- Raschke, who would testify about how in- crete rule of criminal procedure to be formation from cell towers could be used found in the Confrontation Clause or any- to locate Vargas and Hueter on the critical where else. days. After the parties agreed to a stipula- [4–6] This is a hopeless strategy, be- tion about cell-site evidence, the prosecu- cause courts are obliged to consider statu- tion told the judge that it would not call tory and rule-based arguments ahead of Raschke as a witness in its case-in-chief. constitutional ones. See, e.g., New York When Vargas tried to call Raschke in his Transit Authority v. Beazer, 440 U.S. 568, own case, the prosecutor objected, because 582–83, 99 S.Ct. 1355, 59 L.Ed.2d 587 Vargas had not disclosed Raschke as an (1979). ‘‘Lawyers all too often invoke the expert for the defense or described the Constitution as if it were a panacea and subjects of his testimony. The judge sus- bypass seemingly mundane arguments tained the objection. Vargas now asserts based on statutes and regulations. Mimick- that this was absurd—after all, the prose- ing Gresham’s Law, flabby constitutional cutor had to know what Raschke would generalities drive out sound legal points.’’ have said on the stand—and that absurd Magala v. Gonzales, 434 F.3d 523, 526–27 decisions must be unconstitutional. (7th Cir. 2005). ‘‘Why counsel should start Whether the judge erred depends not on with the Constitution rather than the stat- the Due Process Clause but on Fed. R. utes and regulations that govern [these] Crim. P. 16(b)(1)(C), which provides that proceedings is beyond us. Non-constitu- at the prosecution’s request any defendant tional arguments always come first; consti- who has made an equivalent demand for tutional contentions must be set aside until expert disclosure must ‘‘give to the govern- their resolution is unavoidable.’’ Rehman ment a written summary of any testimony v. Gonzales, 441 F.3d 506, 508 (7th Cir. that the defense intends to use under 2006). ‘‘Before taking up a constitutional Rules 702, 703, or 705 of the Federal Rules

000203 U.S. v. VARGAS 421 Cite as 915 F.3d 417 (7th Cir. 2019) of Evidence TTT . This summary must Rule, so he did not need to bother. That is describe the witness’s opinions, the bases a staggering assertion. The prosecutor and reasons for those opinions, and the paid attention; that’s why an objection was witness’s qualifications’’. Vargas did not do made. The district judge enforced Rule 16 this about Raschke; the omission is why by sustaining the objection. And we en- the district judge barred Vargas from call- force rules by insisting that counsel ad- ing Raschke at trial. And unless the de- dress rather than ignore them. ‘‘There is fense plans to call an expert, already des- no general constitutional right to discovery ignated by the prosecution, for exactly the in a criminal case, and Brady [v. Mary- matters covered in the prosecutor’s disclo- land, 373 U.S. 83, 83 S.Ct. 1194, 10 sure, it can’t be called absurd (let alone L.Ed.2d 215 (1963) ] did not create one; as unconstitutional) for the judge to enforce the Court wrote recently, ‘the Due Process the Rule as written. Rule 16(b)(1)(C) thus Clause has little to say regarding the sinks Vargas’s appellate argument unless amount of discovery which the parties courts have read this Rule, despite its text, must be affordedTTTT’ Wardius v. Oregon, as inapplicable to defendants who want to 412 U.S. 470, 474 [93 S.Ct. 2208, 37 call witnesses already disclosed by the L.Ed.2d 82] (1973).’’ Weatherford v. Bur- prosecutor. sey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 We could not find any decision holding L.Ed.2d 30 (1977). Sanctions for violating that disclosure of an expert by the prose- discovery rules also generally are matters cutor relieves the defense of a duty to for the rules or statutes. See Michigan v. provide its own disclosure, if the defense Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 wants to call that expert. Nor could we L.Ed.2d 205 (1991) (judge entitled to ex- find any decision in the other direction clude evidence after defense failed to com- (that is, we couldn’t find any decision hold- ply with a notice obligation). Only close ing that disclosure by the defense relieved attention to Rule 16 might have offered the prosecutor of its duty to disclose the Vargas a chance to prevail. testimony that the same expert would give [11] None of Vargas’s other arguments if called by the prosecutor). The Rule is requires discussion. We agree with him designed to ensure that each side knows that the district judge should have been what an expert’s testimony would cover. more even-handed (at least when the jury See, e.g., United States v. Bresil, 767 F.3d could overhear his admonitions to defense 124, 127 (1st Cir. 2014); United States v. counsel), but neither on that subject nor Barile, 286 F.3d 749, 758 (4th Cir. 2002). any other did the judge violate the Due The possibility that one side will take an Process Clause, which in criminal cases expert in a direction different from the deals with only egregious transgressions of other side’s planned destination affords a trial rules and decorum. Donnelly v. De- good reason why each must identify the Christoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 potential ‘‘witness’s opinions, the bases and L.Ed.2d 431 (1974). reasons for those opinions’’, no matter what the other side has disclosed. AFFIRMED [8–10] Vargas has not addressed any of these subjects, because his brief does not mention Rule 16. When asked why at , oral argument, Vargas’s counsel asserted that no one pays any attention to this

000204 Case: 1:18-cr-00339 Document #: 117 Filed: 09/21/19 Page 1 of 11 PageID #:530

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA ) ) ) ) v. ) No. 18 CR 339 ) Judge Blakey ) ) JAMES WILLIAMS, ) Defendant. ) ) )

DEFENDANT JAMES WILLIAMS’ MOTION FOR MISTRIAL, OR IN THE ALTERNATIVE TO STRIKE MICHELLE HOWARD’S TESTIMONY IN ITS ENTIRETY AND TO DISREGARD THAT TESTIMONY

Defendant, James Williams, by and through his undersigned counsel, pursuant to Rules 16(a)(1)(G) (“Rule 16”) and 26.3 of the Federal Rules of Criminal

Procedure, Rule 702 of the Federal Rules of Evidence (“Rule 702”), the

Confrontation Clause, and the Due Process Clause, respectfully moves this Court for the entry of an Order granting him a mistrial, or in the alternative for the entry of an Order striking the testimony of the Government’s fingerprint expert, Michele

Howard, and barring the Jury from considering that testimony, and states as follows:

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I. BACKGROUND

Pre-Trial

In January 2019, the Government submitted lab reports from its expert fingerprint witness, Michele Howard (“Howard”). Appended to those lab reports was a list of articles. See list, attached hereto. That list of articles was entitled

“references.” Notably, those same articles were appended to another fingerprint report that was submitted to defense counsel as well. That report, which concluded that the FBI was unable to develop latent fingerprints on two license plates, contained the exact same Appendix and list of articles. That license plate report was apparently not submitted to a fingerprint examiner, as it bears no examiner’s name.

Given that the same list of articles was appended to both reports -- including the report where no latent fingerprint was even found -- it is impossible for the

Government to claim that Hoard “relied” on those articles within the meaning of

Fed. R. Evid. 702 and Rule 16, and these Appendixes certainly did not put the

Defendant and his counsel on proper notice that Howard would offer testify regarding any of those articles. How could one rely on an article opining about the statistical significance of fingerprint comparison in a report that found no fingerprints to compare? The Appendix is clearly a “cut-and-paste” appended to everything that comes out of the FBI laboratory. Furthermore, the “black box” study that Howard kept referencing during her trial testimony, including on cross-

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examination when she was not even asked about such a study, does not appear to be

even listed at all on this Appendix. Moreover, the articles appended to the report

were not tied to the lab reports in any way whatsoever.

The lab reports did not constitute the Government’s disclosure of an expert

witness in accordance with Rule 16 and Rule 702. Indeed, by the time the parties

filed their pre-trial materials on June 10, 2019, including their motions in limine,

the Government had still not made an expert disclosure of Howard in compliance

with Rule 16 and Rule 702. See Docket at No. 92, Defendant’s motions in limine), at p. 24 (stating “Again, to-date, the Government has not provided its expert disclosure to Defendant, but Defendant expects the Government to call a fingerprint examiner to testify that Defendant’s fingerprint was found on a box at a hardware store in the same town where one of the bank robberies occurred”).

On June 13, 2019, the Government finally made its expert disclosure

(“Disclosure”) of Michele Howard (“Howard”). See June 13, 2019 Disclosure, attached hereto. The Disclosure set forth in broad and generic terms the testimony and opinions that Ms. Howard would provide at trial. Id. The Disclosure did not cite to, much less refer in any way to, any studies, learned treatise, journals, or other documents as the foundation or basis for those generically described opinions.

Id. Similarly, the Disclosure did not tie any such studies, learned treatises, journals, or other documents to any of Howard’s disclosed opinions. Id.

Moreover, as noted above, to show how innocuous and untethered to any

Howard opinions the above-referenced list of articles was prior to Howard’s trial

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testimony, this Court should also take note of the fact that, as noted above, the very

same list of articles was also appended by the Government to the lab reports that it

produced in discovery documenting the fact that the Government was unable to

obtain any fingerprints from certain license plates at issue.

Trial

During her direct, cross-examination, and re-direct examination testimony,

Ms. Howard repeatedly specifically premised her testimony upon various (and

mostly unidentified) “studies,” “black box study,” “literature,” “research,” “journals,”

and ”journal articles” none of which, as noted above, were ever properly disclosed at

any time prior to her trial testimony and tied to any opinions she might be

proffering at trial. See Howard trial testimony (through September 20, 2019), attached hereto as two Exhibits, at: pp. 12:19-13:5 (“. . . From what I’ve seen in all

the literature that I've read . . . other than I have heard studies . . .”) (emphasis

added); p. 76:16-77:9 (. . . but I have seen it in two different journal articles, one

written by Lynn and others, and another written by Srihari and Srinivasan and

that this is research they had done) (emphasis added); p. 77:16-23 (I’ve read a

number of studies . . . )1 (emphasis added); p. 96:6-23 (“[T]here has been

numerous studies that have shown . . . But there was a study done in 2012 by

Cedric Neumann . . . So, his research supports . . .”) (emphasis added); p. 97:9-13

(“. . . but I do know that research has shown that examiners . . .”) (emphasis

1 Neither of these studies appear to be referenced on the Appendix to the two laboratory reports.

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added); 103:7-12 (I’m basing it on my opinion, but my opinion is based on all the research that I have read . . .”) (emphasis added)2; pp. 103:25-104:3 (It’s [her

opinion] based on the research that we have in the field currently . .”)

(emphasis and brackets added); 104:8-20) (. . . we do have research that does use statistics . . . And we also have statistical studies . . .”) (emphasis added); p. 107:1-

8 . . . I would like to state that there’s a lot of research in the field that does

support making identification decisions (emphasis added); 107:9-15 (. . . But I can

say that there’s a black box study . . . And these examiners, when they said

identification, they were right 99.8 percent of the time”); p. 108:9-13 (“. . . but I can

say that research has supported making these identification decisions”)

(emphasis added); p. 115:13-21 (“. . . And we have research that shows that we

are accurate and reliable in making these decisions”) (emphasis added); p. 117:22-

118:13) (However, I have read many articles on -- with respect to researching

latent print examiners, how accurate and reliable we are, as opposed to novices or

individuals who have never had training in latent print examinations, as well as

how repeatable and reproducible our results are, meaning: Can I come to the same

conclusion as I came to seven months prior, as documented in our black box

study, as well as can I –“) (emphasis added).

Moreover, as many of those passage illustrate, in response to questions from

both defense counsel and the Government, Howard herself repeatedly interjected

2 It would appear that even the Government would have to concede that it has not provided any type of list of all of the articles and journals that Howard has researched and is relying upon for her opinions).

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those types of references in an obvious attempt to bolster her own testimony and

opinions -- even where that information was not even responsive to the question posed

- Id. at pp. 12-13; 76-77; 96; 97; 103-104; 107; 108.

II. ARGUMENT

Pursuant to Rule 16 of the Federal Rules of Criminal Procedure (“Rule 16”), the Government was required to provide Defendant and his counsel with the following:

. . . a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial . . The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness's qualifications.

See Rule 16(a)(1)(G) (emphasis added)3; see also United States v. York, 572 F.3d 415,

421 (7th Cir. 2009) (recognizing the government’s violations of its disclosure

obligations under Rule 16, but declining to reverse where defendant had not raised

the issue of the government’s non-compliance before the District Court). The

Advisory Committee Notes to the 1993 Amendment “stated that the bases and

reasons must be sufficient to allow counsel to frame a Daubert motion (or other

motion in limine), to prepare for cross-examination, and to allow a possible

counter-expert to meet the purport of the case-in-chief testimony.” See United

States v. Cerna, No. CR 08-0730, 2010 WL 2347406 at *1 (N.D. Ca. June 8, 2010)

(emphasis added); see also United States v. Cuellar, 478 F.3d 282, 295 (5th Cir.

3 Rule 16 requires that the Defendant must first make a request in order for this Rule to be triggered. Here, it would appear that there is no dispute that such a request was made on behalf of the Defendant on multiple occasions. Id.

6 000210 Case: 1:18-cr-00339 Document #: 117 Filed: 09/21/19 Page 7 of 11 PageID #:530

2007) (rev’d on other grounds) (“[T]he purpose of Rule 16(a)(1)(G) is to minimize

surprise that often results from unexpected expert testimony, reduce the need for

continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through focused cross-examination”)

(emphasis added).

Where, as here, the Government has violated Rule 16, a District Court can

exclude the testimony at issue. See, e.g., United States v. Moya, 748 Fed.Appx. 819

(2018) (affirming District Court’s Order excluding testimony of government’s expert

witness based upon government’s violation of the disclosure requirements of Rule

16(a)(1)(G)); United States v. Fleet Management, Ltd., No. 07-279, 2008 WL 222325

at *3-5 (E.D. Pa. Jan. 28, 2008) (striking in part, and excluding in part, testimony of

government’s expert witness in light of the government’s Rule 16 disclosure

violations); United States v. Schiff, 538 F.Supp. 818 (D. N.J.) (barring and

excluding, in part, testimony of government’s expert witness based upon

government’s Rule 16 violation).

Alternatively, a District Court has broad discretion to fashion a remedy to

adequately address the Rule 16 violation. See, e.g., United States v. Oriedo, 498

F.3d 593, 604 (7th Cir. 2007) (District Court has wide discretion under Rule 16 to

fashion an appropriate violation of its provisions, including those with respect to

expert disclosure); United States v. Ocasio, No. 11 CR-2728, 2013 WL 2902907

(W.D. Tx. June 13, 2013) (holding that Government’s expert disclosure to be insufficient under Rule 16(a)(1)(G)).

7 000211 Case: 1:18-cr-00339 Document #: 117 Filed: 09/21/19 Page 8 of 11 PageID #:530

Here, the Government clearly violated Rule 16. First, its non-Disclosure attachment of a list of articles, which were not then tied to any relevant opinions disclosed at that time (or thereafter), did not satisfy Rule 16. Likewise, the

Government’s actual and belated June 2019 Disclosure did not comply with Rule 16.

That Disclosure again did not tie any opinions to be offered by Howard to any articles, studies, black box studies, research, or other materials, much less identify or cite to any or all of them.

The Government’s violations of Rule 16 only became apparent at trial. As referenced above, Howard repeatedly testified about articles, studies, black box studies, journals, and research, which were either never disclosed in any way at all, and/or which were never linked or tied to any of her opinions. Furthermore,

Howard went out of her way to attempt to bolster and prop up her opinions by injecting those alleged foundational source materials to her opinions, despite clearly being asked yes or no questions by counsel. In any event, defense counsel was left in a position where the materials Howard was relying upon – and disclosing for the very first time at trial as the alleged bases for particular opinions – could not be challenged in any meaningful way on cross-examination because defense counsel either had no prior notice at all of the existence of such materials and/or no prior notice that Howard would rely upon such materials or tie them to her opinions; and in any event, certainly no notice of how any such outside materials were linked to her opinions. In short, defense counsel cannot be limited to, and be expected to, engage in “cross-examination on the fly.” To hold otherwise, would deny Defendant

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the right to meaningfully confront and cross-examine witnesses and deny him Due

Process – rights guaranteed to him by the United States Constitution.

The “Confrontation Clause of the Sixth Amendment gives the accused the

right ‘to be confronted with the witnesses against him.’ This has long been read as

securing an adequate opportunity to cross-examine adverse witnesses.” United

States v. Owens, __ U.S. __, 108 S.Ct. 838, 841 (1988). Defense counsel’s ability to meaningfully and adequately cross-examine Howard was denied in light of the fact that Howard was allowed to repeatedly reference, disclose, and rely upon materials that were either never previously disclosed at all, and/or not adequately and properly disclosed, and/or were never tied to her opinions in any way.

As a direct and proximate result, Defendant has suffered substantial

prejudice that cannot be undone absent one of the two remedies sought by way of

this Motion. The Jury was led to believe, and allowed to conclude, that Howard’s

opinions are based upon, supported by, and corroborated by all types of foundational

source materials, including articles, journals, studies, black box studies, research

and other data. Defendant and his counsel cannot unring that bell. All of that

testimony unfairly served to prop up Howard’s opinions to the detriment of the

Defendant, and Defendant was and is left with no meaningful way to rebut those

inferences.

Accordingly, Defendant submits that the only remedy that will fully and

adequately address the prejudice he has and will suffer is the entry of an Order

granting him a mistrial. In the alternative, and as previously suggested orally by

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defense counsel during the parties’ September 19, 2019 end of the day sidebar, this

Court should bar and strike Howard’s testimony, and instruct the Jury that it must disregard that testimony in its entirety. See United States v. Oriedo, 498 F.3d 593,

604 (7th Cir. 2007) (District Court has wide discretion under Rule 16 to fashion an

appropriate violation of its provisions, including those with respect to expert

disclosure); see also United States v. Ocasio, No. 11 CR-2728, 2013 WL 2902907

(W.D. Tx. June 13, 2013) (holding that Government’s expert disclosure to be

insufficient under Rule 16(a)(1)(G)).

WHEREFORE, Defendant, James Williams, by and through his undersigned

counsel, respectfully requests the entry of an Order granting him a mistrial, or in

the alternative for the entry of an Order striking the testimony of the Government’s

fingerprint expert, Michele Howard, and barring the Jury from considering that

testimony, and for such other and further relief as is appropriate under the

circumstances.

RESPECTFULLY SUBMITTED,

By: s/Michael I. Leonard Attorneys for Defendant

LEONARDMEYER LLP Michael I. Leonard 120 N. LaSalle Street, 20th Floor Chicago, Illinois 60602 312-380-6559 (office) 312-264-0671 (fax) [email protected]

10 000214 Case: 1:18-cr-00339 Document #: 117 Filed: 09/21/19 Page 11 of 11 PageID #:530

CERTIFICATE OF SERVICE

The undersigned states that, on September 21, 2019, he caused the above to be served on all counsel of record by way of ECF filing.

RESPECTFULLY SUBMITTED,

By: s/Michael I. Leonard Counsel for Defendant

11 000215