United States v. Ernest D. Shields , 789 F.3d 733 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3726
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST D. SHIELDS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cr-00440-1 — Rubén Castillo, Chief Judge.
____________________
ARGUED OCTOBER 29, 2014 — DECIDED JUNE 15, 2015
____________________
Before RIPPLE, KANNE, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Ernest D. Shields was arrested
following a brief police chase and charged with possession
of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e)(1). Prior to trial, Mr. Shields filed, and the district
court denied, a motion to suppress the evidence obtained at
the time of his arrest as well as a motion to dismiss the
indictment on the ground that § 922(g)(1) violated the
Constitution of the United States. At a hearing three days
2 No. 13-3726
before trial, Mr. Shields requested a continuance to allow
him to file two past-due reply briefs and to arrange for two
additional witnesses. The court denied these requests. After
trial, a jury found Mr. Shields guilty, and the district court
imposed the fifteen-year mandatory minimum sentence.
Mr. Shields now appeals, setting forth six claims of error.
Because the district court correctly decided each
controverted issue, we affirm its judgment.
I
BACKGROUND
A.
At approximately 8:00 p.m. on January 10, 2011, Officers
Craig Coglianese and David Bachler of the Chicago Police
Department were on patrol in an unmarked police vehicle.
The officers observed Mr. Shields’s parked SUV partially
blocking a crosswalk, in violation of Chicago Municipal
Code § 9-64-110(c). The officers stopped their vehicle parallel
to Mr. Shields’s SUV.
Officer Coglianese exited his vehicle, approached
Mr. Shields, who was sitting in the driver’s seat of his SUV,
and asked for his driver’s license. After handing
Officer Coglianese his driver’s license, Mr. Shields
voluntarily exited the SUV and, at the officer’s request,
walked toward the rear of the vehicle with Officer
Coglianese. During this time, Officer Bachler had exited the
driver’s seat of the police vehicle and had walked around to
its front.
No. 13-3726 3
When Mr. Shields reached the rear of the vehicle, he did
not stop to talk to the police officers, but instead fled east
down an adjacent street. Officer Coglianese gave chase to
Mr. Shields. When Mr. Shields turned left down an alley, the
officer followed and saw Mr. Shields pull a firearm out of his
right coat pocket. Shortly thereafter, Officer Coglianese
caught up to Mr. Shields and pushed him to the ground.
Officer Bachler arrived in the police vehicle after one or two
minutes, and the officers placed Mr. Shields in handcuffs.
The officers rolled Mr. Shields over and discovered a loaded
six-shot .22-caliber revolver on the ground. It was the same
firearm that Officer Coglianese had observed Mr. Shields
remove from his pocket.
The officers placed Mr. Shields in the back of their police
vehicle, and Officer Coglianese read Mr. Shields his Miranda
rights. Thereafter, Officer Coglianese asked Mr. Shields,
“Why are you running with a gun?” 1 Mr. Shields responded,
“I shouldn’t have had that weapon on me.” 2 At the police
station, Officer Coglianese gave Mr. Shields a ticket for
blocking the crosswalk. Mr. Shields then was taken to the
hospital for treatment for a cut over his left eye that he
sustained during the arrest.
B.
On June 22, 2011, a grand jury indicted Mr. Shields for
possession of a firearm by a felon, in violation of 18 U.S.C.
1 R.143 at 163.
2 Id.
4 No. 13-3726
§§ 922(g) and 924(e)(1). The indictment thus listed both the
substantive crime and sentencing provision under the
Armed Career Criminal Act. In due course, Mr. Shields filed
a motion to suppress the firearm and his statements
following his arrest. In that motion, he maintained that the
traffic stop was illegal, that the police had conducted an
illegal search, and that his statement to the police was
involuntary. At an evidentiary hearing on this motion,
Officers Coglianese and Bachler testified about their
encounter with Mr. Shields. Corey Flournoy, an acquaintance
of Mr. Shields who was parked down the street at the time,
also testified.
Following the hearing, the district court denied the
motion. The court first determined that the officers acted
within the bounds of the Fourth Amendment in conducting
the traffic stop because they had probable cause to believe
that Mr. Shields had committed a traffic offense by blocking
the crosswalk. Rejecting Mr. Shields’s contention that the
officers illegally searched him after pulling him from his
vehicle, the court found that Mr. Shields had presented
“absolutely no evidence that” he was pulled out of the car by
the officers. 3 The court went on to note that Mr. Shields’s
flight provided the officers with probable cause to arrest him
for knowingly resisting or obstructing the performance of a
police officer in violation of 720 ILCS 5/31-1(a). 4 With regard
3 R.60 at 9.
4 The statute provides:
A person who knowingly resists or obstructs the per-
formance by one known to the person to be a peace of-
(continued...)
No. 13-3726 5
to the discovery of the firearm, the court determined that
“[t]he uncontroverted evidence from the suppression
hearing establishe[d] that the officers found the gun in plain
view after Shields was legally arrested following a traffic
stop that was reasonable in duration.” 5 Finally, the court
concluded that Mr. Shields did not establish that his
statements following his arrest were involuntary.
Mr. Shields filed a motion for reconsideration or, in the
alternative, a request that the court reopen the suppression
hearing to allow Mr. Shields to testify. The next day,
Mr. Shields filed a motion to dismiss the indictment on the
ground that the statute violated the Second Amendment of
the Constitution. The Government filed its responses to
Mr. Shields’s motions on March 8, 2013. Mr. Shields did not
file a reply for either motion by the March 15, 2013, deadline.
At a subsequent hearing, Mr. Shields asked for a
continuance of the trial so that he could have more time to
file his replies. He stated that he needed more time because
his counsel was involved in a separate trial that was “pushed
(...continued)
ficer, firefighter, or correctional institution employee of
any authorized act within his or her official capacity
commits a Class A misdemeanor.
720 ILCS 5/31-1(a).
Chicago Municipal Code § 9-64-230 provides that violat-
ing § 9-64-110(c) “shall be a civil offense punishable by fine, and
no criminal penalty, or civil sanction other than that prescribed
in this Code, shall be imposed.”
5 R.60 at 9.
6 No. 13-3726
into an inconvenient spot” and because he was trying to
arrange for two witnesses. 6 The court denied the request,
stating that it was too late to ask for more time to file the
replies and that it was too close to trial to grant a
continuance. The court specifically noted that Mr. Shields
had not filed a request for an extension of the reply deadline
and that it was only three business days from trial.
Mr. Shields then filed a motion to dismiss the indictment
on the ground that federal jurisdiction could not be
established beyond a reasonable doubt. He maintained that
the Government could not establish the requisite interstate
commerce nexus. The district court denied the motion.
The jury trial commenced on March 25, 2013, and lasted
three days. On the second day of trial, Mr. Shields stipulated
that he had “been at some time before January 10, 2011
convicted of a felony punishable by imprisonment for a term
exceeding one year.” 7 The Government offered no additional
evidence at trial of Mr. Shields’s prior convictions.
The district court instructed the jury that “the
government must prove…three…elements beyond a
reasonable doubt: No. 1, the defendant knowingly possessed
a firearm. No. 2, at the time of the charged act, the defendant
was a felon. And, No. 3, the firearm had been shipped or
transported in interstate or foreign commerce.” 8 The jury
6 R.142 at 2.
7 R.144 at 3.
8 R.145 at 48.
No. 13-3726 7
found Mr. Shields guilty of possession of a firearm by a
felon.
C.
The presentence report (“PSR”) calculated that
Mr. Shields had a total offense level of 33 and a criminal
history category of VI, resulting in a guidelines range of 235
to 293 months’ imprisonment. It also noted that Mr. Shields
had three prior violent felony convictions and therefore was
subject to a mandatory minimum sentence of fifteen years
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1).
At the sentencing hearing, Mr. Shields, appearing pro se,9
objected to the PSR on several grounds. He first stated that
two of his convictions did not qualify for the ACCA
enhancement. Second, Mr. Shields argued that his
mandatory minimum sentence violated Alleyne v. United
States, 133 S. Ct. 2151 (2013), because his three prior felony
convictions were not submitted to the jury. Finally,
Mr. Shields argued that he received a letter that indicated
9 After trial but before his sentencing hearing, Mr. Shields filed a “Notice
of Termination,” which stated that he “reject[ed], refute[d] and den[ied]
[his counsel’s] ineffective/incompetent counsel and legal determination.”
R.108 at 1. Mr. Shields continued by stating that his counsel’s “alleged
authority is hereby abrogated, quashed and terminated, for cause, due to
[his] fraudulent acts and omissions of malfeasance.” Id. Mr. Shields’s
counsel subsequently filed a motion to withdraw, which the court grant-
ed after holding a hearing. On appeal, Mr. Shields does not challenge the
district court’s decision to allow him to proceed to sentencing without
counsel.
8 No. 13-3726
that his civil rights were restored and that, consequently, the
underlying offense could not serve as the basis of a
sentencing increase. 10 The district court rejected all of
Mr. Shields’s arguments and sentenced him to the fifteen-
year mandatory minimum, followed by a five-year term of
supervised release.
Mr. Shields now appeals his conviction and his sentence.
He makes six claims. 11 We will address each in turn.
II
DISCUSSION
A. Failure to Prove Prior Convictions
Mr. Shields contends that, in accordance with recent
Supreme Court precedent, his three prior convictions had to
be proved to the jury. He also maintains that the criminal
process against him was flawed from the beginning because
the indictment recited not only the substantive crime of felon
in possession of a firearm, under 18 U.S.C. § 922(g)(1), but
also the statutory sentencing enhancement for three prior
felony convictions under 18 U.S.C. § 924(e)(1). In his view,
the recitation of this latter provision obligated the
Government to prove before the jury not only the
10A court may not consider a conviction for purposes of the ACCA if the
defendant’s civil rights have been restored. See 18 U.S.C. § 921(a)(20).
11
Although Mr. Shields styled his brief as raising seven distinct argu-
ments, we address together his contentions that the Government of-
fered insufficient evidence to prove his three prior convictions and that
his prior convictions needed to be proved to the jury.
No. 13-3726 9
substantive offense of conviction (possession of a firearm by
a felon) but also the existence of each conviction.
Alternatively, he submits that the Government
constructively amended the indictment by proving only the
§ 922 offense.
We cannot accept the view that § 924(e)(1), on its own,
provides a substantive element of the offense that must be
submitted to the jury. In Almendarez-Torres v. United States,
523 U.S. 224 (1998), the Supreme Court held that prior
convictions are sentencing factors that could be determined
by the court and that need not be proved to a jury. See id. at
246–47. More recently, the Court held that any fact that
increases the mandatory minimum sentence is an element of
the offense that must be submitted to a jury. See Alleyne, 133
S. Ct. at 2155. But, in crafting that rule, the Court explicitly
declined to revisit Almendarez-Torres. See id. at 2160 n.1.
Mr. Shields nevertheless argues that Almendarez-Torres
now conflicts with the Court’s more recent decision in
Alleyne. Although we have said that “Almendarez-Torres is
vulnerable to being overruled,” we also have noted that only
the Supreme Court can overrule its prior decisions. United
States v. Elliott, 703 F.3d 378, 381 n.2 (7th Cir. 2012) (quoting
United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006)).
Accordingly, unless the Court acts, we are bound to follow
Almendarez-Torres. See United States v. Boswell, 772 F.3d 469,
478 (7th Cir. 2014); United States v. Zuniga, 767 F.3d 712, 718
(7th Cir. 2014). Mr. Shields’s prior felony convictions
therefore were not substantive elements of his offense and
did not need to be proved to the jury in order to support his
fifteen-year mandatory minimum sentence.
10 No. 13-3726
The fact that the indictment recited § 924(e)(1) does not
alter this conclusion. Including a sentencing provision, such
as § 924(e)(1), in an indictment does not transform a
sentencing factor into a substantive element. “Under Rule
7(c) of the Federal Rules of Criminal Procedure, a miscitation
such as the reference to § 924(e) is harmless error and cannot
be grounds for dismissing the indictment or reversing the
conviction unless the defendant is misled by the erroneous
reference and prejudiced thereby.” United States v. Lowe, 860
F.2d 1370, 1381 (7th Cir. 1988). 12 Mr. Shields does not
contend that he was misled or otherwise prejudiced by the
reference to the sentencing provision. Indeed, Mr. Shields’s
pretrial motions indicate that he was fully aware of the
substance of the pending charges. 13
Finally, Mr. Shields submits that, by including the
§ 924(e)(1) enhancement in the indictment, the Government
constructively amended the indictment by only offering
evidence to prove one felony. “A constructive amendment of
an indictment occurs when the evidence at trial ‘goes
beyond the parameters of the indictment in that it
establishes offenses different from or in addition to those
12 See also United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989) (re-
jecting the defendant’s argument after noting that the defendant did “not
even allege that he was misled or that he did not receive adequate notice
of the charges against him” and finding that there was “no evidence in
the record that [the defendant] was misled by the surplusage”).
13 See United States v. Lowe, 860 F.2d 1370, 1381 (7th Cir. 1988) (noting that
it was “apparent from the content of Lowe’s numerous pretrial motions
that the indictment created no such notice problem for him or his coun-
sel”).
No. 13-3726 11
charged by the grand jury.’” United States v. Phillips, 745 F.3d
829, 832 (7th Cir. 2014) (quoting United States v. Pigee, 197
F.3d 879, 886 (7th Cir. 1999)). The alleged amendment must
be sufficiently different such that it would be impossible to
know whether the grand jury would have indicted for the
crime actually proved. See id. Here, because the inclusion of
the sentencing provision in the indictment did not create a
separate offense, there can be no constructive amendment.
Simply stated, the Government presented evidence to prove
that Mr. Shields committed the offense set forth in the
indictment: it proved that he previously was convicted of a
felony and that he possessed a firearm that had travelled in
interstate commerce.
B. Motion to Suppress
Mr. Shields submits that the district court erred in
denying his motion to suppress. He contends that, prior to
his running away from the police officers, he had not been
seized and was not under arrest. Furthermore, he submits
that the parking violation is not an offense that would
support his arrest in the alley. The Government takes a
distinctly different view of the matter. It submits that the
officers undertook a legal traffic stop supported by probable
cause: Mr. Shields was committing a traffic offense by
parking in a crosswalk in violation of the Chicago Municipal
Code. In the Government’s view, the violation justified a
valid Terry investigative stop. The Government further
maintains that, because Mr. Shields’s running away
obstructed the performance of their duty, the officers had
probable cause to chase and apprehend him. It contends that
12 No. 13-3726
the flight also gave them adequate reasonable suspicion to
undertake a Terry investigative stop.
1.
We begin by setting forth the settled principles that must
guide our analysis. When we review a district court’s denial
of a motion to suppress, we review the district court’s
finding of historical facts for clear error. See United States v.
Tyler, 512 F.3d 405, 409 (7th Cir. 2008). Legal determinations,
such as the existence of a seizure and probable cause, are
reviewed de novo. See id.The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. In analyzing
this important constitutional protection, we have recognized
that there are three basic categories of police-citizen
interactions:
The first category is an arrest, for which the
Fourth Amendment requires that police have
probable cause to believe a person has
committed or is committing a crime. The
second category is an investigatory stop, which
is limited to a brief, non-intrusive detention.
This is also a Fourth Amendment “seizure,”
but the officer need only have specific and
articulable facts sufficient to give rise to a
reasonable suspicion that a person has
committed or is committing a crime. The third
category involves no restraint on the citizen’s
liberty, and is characterized by an officer
seeking the citizen’s voluntary cooperation
No. 13-3726 13
through non-coercive questioning. This is not a
seizure within the meaning of the Fourth
Amendment.
United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir. 1990)
(citations omitted).
As this formulation makes clear, not every police encoun-
ter implicates the Fourth Amendment. A seizure within the
meaning of the Fourth Amendment takes place if, in view of
all the circumstances surrounding the incident, a reasonable
person would not believe that he was free to leave. See Flori-
da v. Bostick, 501 U.S. 429, 439 (1991); accord United States v.
Drayton, 536 U.S. 194, 201 (2002). In determining whether a
reasonable person would believe that he was free to leave or
whether, instead, the encounter amounts to a seizure, we
consider such factors as:
(1) whether the encounter occurred in a public
place; (2) whether the suspect consented to
speak with the officers; (3) whether the officers
informed the individual that he was not under
arrest and was free to leave; (4) whether the
individuals were moved to another area; (5)
whether there was a threatening presence of
several officers and a display of weapons or
physical force; (6) whether the officers de-
prived the defendant of documents she needed
to continue on her way; and (7) whether the of-
ficers’ tone of voice was such that their re-
quests would likely be obeyed.
United States v. Johnson, 680 F.3d 966, 975 n.4 (7th Cir. 2012)
(quoting United States v. Barker, 467 F.3d 625, 629 (7th Cir.
14 No. 13-3726
2006)). We also have considered “whether police indicated to
the person that she was suspected of a crime or was the
specific target of police investigation.” United States v.
McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993).
The distinction between a consensual encounter, which
does not implicate the Fourth Amendment, and an
investigative stop, which does implicate the constitutional
guarantee because it constitutes a seizure, is often difficult to
discern. On one hand, the Supreme Court has recognized
that “mere police questioning does not constitute a seizure.”
Bostick, 501 U.S. at 434; see also United States v. Childs, 277
F.3d 947, 950 (7th Cir. 2002) (en banc) (noting that police may
approach persons and ask questions “provided that the
officers do not imply that answers…are obligatory”).
Accordingly, “law enforcement officers do not violate the
Fourth Amendment by merely approaching an individual on
the street or in another public place, by asking him if he is
willing to answer some questions, [or] by putting questions
to him if the person is willing to listen.” Childs, 277 F.3d at
950 (alteration in original) (quoting Bostick, 501 U.S. at 434).
A mere request for identification does not change a
voluntary stop, which is outside the purview of the Fourth
Amendment, into an investigatory stop. See Bostick, 501 U.S.
at 437 (“As we have explained, no seizure occurs when
police…ask to examine the individual’s identification… .”);
INS v. Delgado, 466 U.S. 210, 216 (1984) (explaining that a
request for identification by itself does not constitute a
seizure under the Fourth Amendment). These principles do
not change when an individual is seated in an automobile.
See, e.g., United States v. Douglass, 467 F.3d 621, 624 (7th Cir.
2006) (holding that “the officers’ stance on either side of [the
defendant’s] car [did not] convert the encounter into a
No. 13-3726 15
seizure because he still could have declined to answer their
questions and driven away”).
Our decision in Tyler illustrates the distinction between
consensual encounters and investigatory stops. In Tyler, we
concluded that the defendant would not have believed that
he was free to leave, even though “the encounter took place
on a public street and the officers did not draw their
weapons or (at least initially) lay hands on Tyler,” because
the officers “told him he was violating the law, took his
identification from him and retained it while they ran a
warrant check, and told him he could not leave until the
warrant check was completed.” 512 F.3d at 410. We relied on
our precedents addressing whether a defendant is seized
when he is approached by officers at an airport or train
station. In those cases, we had held that a defendant is seized
“[w]here the officers told the defendant he was under
investigation for carrying drugs or retained possession of his
identification, travel documents, and/or luggage.” Id. We
contrasted such a situation from “[w]here the officers only
generally identified themselves as narcotics investigators
and immediately returned the defendant’s identification and
travel documents.” Id. We concluded that “[a] reasonable
person would not feel free to walk away after being
confronted by two police officers and told he was
committing a crime in the officers’ presence.” 14 Id. at 410–11.
14Cf. Florida v. Royer, 460 U.S. 491, 501 (1983) (plurality opinion) (holding
that a suspect was seized when narcotics agents told him “that he was
suspected of transporting narcotics, and asked him to accompany them
to the police room, while retaining his ticket and driver’s license and
without indicating in any way that he was free to depart”).
16 No. 13-3726
The Supreme Court has characterized a traffic stop as a
form of an investigative stop. See Rodriguez v. United States,
135 S. Ct. 1609, 1614 (2015) (“A seizure for a traffic violation
justifies a police investigation of that violation. A relatively
brief encounter, a routine traffic stop is more analogous to a
so-called ‘Terry stop’ than to a formal arrest.” (alterations
omitted) (internal quotation marks omitted)); Navarette v.
California, 134 S. Ct. 1683, 1687 (2014) (“The Fourth
Amendment permits brief investigative stops—such as the
traffic stop in this case—when a law enforcement officer has
a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” (internal
quotation marks omitted) (citing Terry v. Ohio, 392 U.S. 1, 21–
22 (1968))). In contrast to a consensual encounter, “[a] traffic
stop for a suspected violation of law is a ‘seizure’ of the
occupants of the vehicle and therefore must be conducted in
accordance with the Fourth Amendment.” Heien v. North
Carolina, 135 S. Ct. 530, 536 (2014).
2.
Our colleague in the district court, viewing the totality of
the circumstances, concluded that this encounter was more
properly characterized as a seizure. In the district court’s
view, the officers approached the vehicle, and Mr. Shields,
because they believed that he was in the process of
committing an offense against the Chicago Municipal Code
by parking his vehicle in a cross walk. In the court’s view,
the officers had undertaken to confront him about a specific
violation of the law and, had that process, already initiated
by the officers, not been interrupted by Mr. Shields’s flight,
that specific confrontation would have taken place.
No. 13-3726 17
We agree with the district court’s determination. As
Mr. Shields admitted in his motion to suppress, the officers
effectuated “a stop to issue a parking ticket.” 15 After
recognizing the parking violation, the officers stopped their
vehicle, approached Mr. Shields, asked for his license, and
asked him to walk to the back of the vehicles. When
Mr. Shields fled the scene, the officers still were in
possession of his license. In view of all the circumstances
surrounding the encounter, a reasonable person in
Mr. Shields’s position would not believe that he was free to
walk away from the officers.
Because the officers believed that Mr. Shields was in the
process of committing a parking offense, they had, at a
minimum, reasonable suspicion to believe that the law was
being violated. To support an investigatory stop, “officers
need only ‘reasonable suspicion’—that is, ‘a particularized
and objective basis for suspecting the particular person
stopped’ of breaking the law.” Heien, 135 S. Ct. at 536
(quoting Navarette, 134 S. Ct. at 1687). “The standard takes
into account the totality of the circumstances—the whole
picture.” Navarette, 134 S. Ct. at 1687 (internal quotation
marks omitted). Because Mr. Shields does not dispute that
he violated the Chicago Municipal Code by parking in the
cross walk, the officers clearly had an objective basis to
believe that he was violating the law. See United States v.
Choudhry, 461 F.3d 1097, 1103–04 (9th Cir. 2006) (holding that
15R.41 at 3; see also id. at 4 (“Ernest Shields had complied with all rea-
sonable requests and the reason for the police to approach and detain
him had ended.”).
18 No. 13-3726
a parking violation is sufficient to support an investigatory
stop).
Ultimately, the officers had probable cause to arrest
Mr. Shields after they seized him following his flight down
the alley. An arrest may be supported by probable cause that
the arrestee committed any offense, regardless of the crime
charged or the crime the officer thought had been
committed. See Devenpeck v. Alford, 543 U.S. 146, 153–56
(2004); United States v. Bullock, 632 F.3d 1004, 1021 n.3 (7th
Cir. 2011). Probable cause exists if a reasonable officer would
believe “that the suspect has committed, is committing, or is
about to commit an offense,” based on the “facts and
circumstances within the officer’s knowledge.” Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979). “Probable cause is a fluid
concept based on common-sense interpretations of
reasonable police officers as to the totality of the
circumstances at the time of arrest.” United States v. Breit, 429
F.3d 725, 728 (7th Cir. 2005).
The officers were aware of several facts that would allow
a reasonable officer to believe that Mr. Shields committed an
offense. First, Mr. Shields’s decision to run from the officers
constituted another violation of law because he was
interfering with the performance of their duty to investigate
and, if appropriate, hold him accountable for the earlier
violation. See 720 ILCS 5/31-1(a). 16 Second, once
Officer Coglianese saw Mr. Shields remove a firearm from
his pocket, he had probable cause to believe that Mr. Shields
had violated Illinois’s statutory prohibition then in force
16 See supra note 4.
No. 13-3726 19
against carrying firearms. 17 See 720 ILCS 5/24-1(a)(4)
(prohibiting, with limited exceptions, the carrying of “any
pistol, revolver, stun gun or taser or other firearm”); cf.
United States v. Price, 328 F.3d 958, 960 (7th Cir. 2003) (“In a
situation, like the one here, where officers see a gun upon
approaching a person, they certainly have ‘reasonable
suspicion’ to restrain that person without violating Terry.”).
3.
In summary, the officers had at least reasonable
suspicion at the time of their initial encounter with
Mr. Shields and acquired additional bases for probable cause
when Mr. Shields fled and removed the firearm from his
pocket. Finally, at the time of their justifiable seizure in the
alley, the weapon was in plain sight and clearly subject to
seizure incident to the arrest. The district court, therefore,
was on solid ground in denying Mr. Shields’s motion to
suppress.
17 This court’s decision, subsequent to Mr. Shields’s arrest, that the pro-
hibition on the carrying of firearms in public was unconstitutional, see
Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), does not alter our
probable cause analysis, see Michigan v. DeFillippo, 443 U.S. 31, 37–38
(1979) (“A prudent officer, in the course of determining whether re-
spondent had committed an offense under all the circumstances shown
by this record, should not have been required to anticipate that a court
would later hold the ordinance unconstitutional.”).
20 No. 13-3726
C. Brady Claim
Mr. Shields contends that the Government withheld
evidence, in violation of Brady v. Maryland, 373 U.S. 83(1963), by failing to disclose a lawsuit filed in 2004 against
the City of Chicago and twenty-six police officers, including
Officer Coglianese. He submits that the information
following an investigation, presumably conducted in
response to that lawsuit, might have included exculpatory
information and, at a minimum, be suitable for
impeachment purposes. Mr. Shields did not raise the alleged
Brady violation before the district court; we therefore review
the claim for plain error. See United States v. Mota, 685 F.3d
644, 648 (7th Cir. 2012). Accordingly, “the alleged Brady
violation must be an obvious error that affected [the
defendant’s] substantial rights and created ‘a substantial risk
of convicting an innocent person.’” Id. (quoting United States
v. Daniel, 576 F.3d 772, 774 (7th Cir. 2009)).
To establish a Brady violation, a defendant must “show
that (1) the [Government] suppressed evidence, (2) the
evidence was favorable to the defense, and (3) the evidence
was material to an issue at trial.” United States v. Villasenor,
664 F.3d 673, 683 (7th Cir. 2011). Evidence is suppressed
when “the prosecution fail[s] to disclose the evidence in time
for the defendant to make use of it” and “the evidence was
not otherwise available to the defendant through the exercise
of reasonable diligence.” Ienco v. Angarone, 429 F.3d 680, 683
(7th Cir. 2005). Although the Government has an affirmative
duty to learn of and to disclose any favorable evidence, the
defendant bears the burden of establishing a Brady violation
by offering more than mere speculation or unsupported
No. 13-3726 21
assertions that the Government suppressed evidence. See
United States v. Jumah, 599 F.3d 799, 808–09 (7th Cir. 2010).
Mr. Shields has failed to demonstrate that any evidence
was suppressed by the Government. The lawsuit, and its
settlement, have been publicly available since 2004. See
Quarles v. City of Chicago, No. 1:04-cv-03753 (N.D. Ill. filed
June 1, 2004). Mr. Shields could have accessed the settlement
at any point before the suppression hearing and trial
through the exercise of due diligence. See United States v.
Walker, 746 F.3d 300, 307 (7th Cir. 2014) (noting that the
defendant “never even asked the South [Holland] Police
Department to provide him with the evidence”); United
States v. White, 970 F.2d 328, 337 (7th Cir. 1992) (recognizing
that, among other considerations in finding no Brady
violation, the defendants “had access to the bankruptcy file
from which Center extracted and photocopied the notes he
turned over to the government”).
Indeed, the record makes clear that Mr. Shields was able
to obtain both the complaint and the settlement before the
end of trial. In his motion for a new trial, Mr. Shields noted
that “Officer Coglianese was part of a similar story in
another case, which became the subject of a civil rights law
suit.” 18 Even at sentencing, he expressed his dissatisfaction
with his trial counsel’s decision “not to bring [the prior
lawsuit] up in court,” noting that “[s]he could have brought
that up to the jurors to say, hey, I got a case similar like my
18 R.100 at 6. Cf. United States v. White, 970 F.2d 328, 337 (7th Cir. 1992)
(noting that the defendants introduced at trial “the very documents they
accuse the government of ‘suppressing’”).
22 No. 13-3726
client.” 19 Given that the documents were publicly available
and that Mr. Shields admittedly had accessed them, we
cannot conclude that they were suppressed under Brady.
Mr. Shields notes that he does not focus solely on
documents that were contained in the public record. He
submits that the Government had access to the “underlying
materials and evidence of alleged crimes committed by”
Officer Coglianese. 20 But a bare assertion that the
prosecution suppressed evidence, without more, is not
sufficient to prove a Brady violation. See Jumah, 599 F.3d at
809. Mr. Shields does not point to any specific evidence that
was suppressed by the Government. Instead, he theorizes
that, following the filing of the claim, the police department
initiated an investigation during which it created documents
that show that Officer Coglianese did in fact plant evidence
on the plaintiff. There is no reason to think that Mr. Shields’s
speculation is accurate. See United States v. Andrus, 775 F.2d
825, 843 (7th Cir. 1985) (denying request for discovery of
personnel files for law enforcement witnesses because there
was no suggestion that the personnel files actually contained
favorable evidence).
Furthermore, if Mr. Shields had some basis for his belief
that Officer Coglianese’s file contained evidence that could
be used for impeachment purposes, “he could have
requested that the district court undertake a review in camera
of the Government’s files.” Jumah, 599 F.3d at 809 (citing
Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)). “Such a
19 R.146 at 28.
20 Reply Br. 5.
No. 13-3726 23
review is the accepted procedure for resolving legitimate
doubt about the existence of undisclosed material and one
that balances the defendant’s important need for access to
potentially relevant material with the Government’s valid
interest in protecting confidential files and the integrity of
pending investigations.” Id. at 810 (emphasis added). Here,
we have nothing but speculation. Accordingly, we cannot
conclude that the Government committed a Brady violation.
D. Motion to Continue
Mr. Shields also contends that the district court erred in
denying his motion to continue the trial to allow him to file
replies in support of the pending motions and to locate two
witnesses. We will reverse the district court’s denial of a
motion for a continuance only for an abuse of discretion and
upon a showing of actual prejudice. United States v. Price, 520
F.3d 753, 760 (7th Cir. 2008).
A district court should consider several factors when
ruling upon a motion to continue, including
(1) the amount of time available for
preparation; (2) the likelihood of prejudice
from denial of the continuance; (3) the
defendant’s role in shortening the effective
preparation time; (4) the degree of complexity
of the case; (5) the availability of discovery
from the prosecution; (6) the likelihood a
continuance would have satisfied the movant’s
needs; and (7) the inconvenience and burden to
the district court and its pending case load.
24 No. 13-3726
United States v. Crowder, 588 F.3d 929, 936 (7th Cir. 2009)
(quoting United States v. Miller, 327 F.3d 598, 601 (7th Cir.
2003)). These factors are not exhaustive, and the district
court is in the best position to determine their relative
weight at the time the continuance is requested. See id. “The
party requesting the continuance should identify the specific
risk of prejudice, because a court may properly deny a
motion to continue that is based wholly on ‘vague and
conclusory’ statements.” Id. (quoting United States v. Robbins,
197 F.3d 829, 846 (7th Cir. 1999)).
We cannot conclude that the district court abused its
discretion in denying Mr. Shields’s motion for a continuance.
Mr. Shields requested the continuance three business days
before the start of trial. He had waited, moreover, until after
the filing deadline had passed before requesting that the
court grant him additional time to reply. After noting that
Mr. Shields had not filed a motion requesting an extension,
the district court reasonably explained that it was “way too
late” to request an extension or a continuance. 21 See Blue v.
Hartford Life & Accident Ins. Co., 698 F.3d 587, 594 (7th Cir.
2012) (noting that “courts have an interest in keeping
litigation moving forward and that maintaining respect for
set deadlines is essential to achieving that goal”).
Similarly, the district court did not err in determining
that Mr. Shields had enough time to prepare for trial. The
record indicates that Mr. Shields’s counsel filed an
appearance approximately three months before trial. The
case was not particularly complex, as Mr. Shields concedes,
21 R.142 at 2.
No. 13-3726 25
and the trial lasted only three days. Given these
circumstances, Mr. Shields had adequate time to prepare. See
United States v. Bush, 820 F.2d 858, 860–61 (7th Cir. 1987)
(holding that the district court did not abuse its discretion in
denying a continuance when the defendant had three
months to prepare for a simple case, with one defendant, in
a trial that lasted three days).
Nor has Mr. Shields made a convincing argument that he
has suffered prejudice by the lack of additional time to
prepare. Mr. Shields’s vague allegations that additional time
would have resulted in a more vigorous defense are
insufficient to establish the prejudice necessary to overturn
the district court’s determination. See Crowder, 588 F.3d at 937(holding that the defendant could not “rely on vague and
conclusory statements about his abstract need for more time
to review the evidence”). Mr. Shields suggested that he was
attempting to get two witnesses “in line.” 22 He contends that
the district court erred by not inquiring into the identity of
the additional witnesses. But it appears that, had the district
court asked Mr. Shields for the names of the witnesses he
sought, he would have been unable to provide them. Indeed,
Mr. Shields was unable to identify the witnesses that he was
seeking either in his briefs or at oral argument. Instead, he
submits that the witnesses may have been Flourney, who
testified at the suppression hearing, and Kelly Quarles, who
filed the above mentioned lawsuit against the City of
Chicago. Without a clearer explanation of the witnesses
sought and the prejudice that Mr. Shields faced from the
inability to obtain their testimony, we cannot conclude that
22 R.142 at 2.
26 No. 13-3726
Mr. Shields was prejudiced by the court’s denial. Cf. United
States v. Aviles, 623 F.2d 1192, 1197 (7th Cir. 1980) (noting that
“the contention that the appellant did not call additional
witnesses for any reason other than his own trial strategy is
unsupported by the record”); United States v. Walker, 621 F.2d
163, 168 (5th Cir. 1980) (“In moving for a continuance based
on the unavailability of witnesses, a movant must show that:
‘due diligence has been exercised to obtain the attendance of
the witness, that substantial favorable evidence would be
tendered by the witness, that the witness is available and
willing to testify, and that the denial of the continuance
would materially prejudice the defendant.’” (quoting United
States v. Miller, 513 F.2d 791, 793 (5th Cir. 1975)).
E. Consideration of Prior Convictions Under the ACCA
Mr. Shields contends that the district court erred in
considering two of his prior convictions when sentencing
him under the ACCA. Specifically, he submits that the
district court should not have considered his prior
convictions for aggravated battery and residential burglary
because his civil rights had been restored.
Under § 924(e)(1), a defendant convicted of possessing a
firearm following three prior violent felony convictions must
be sentenced to a mandatory fifteen-year minimum sentence.
Convictions for which a defendant’s civil rights have been
restored are excluded from consideration. See 18 U.S.C.
§ 921(a)(20). The defendant bears the burden of proving that
his rights were restored by a preponderance of the evidence.
United States v. Foster, 652 F.3d 776, 793 (7th Cir. 2011). To
meet his burden, a defendant must prove that his rights to
No. 13-3726 27
vote, hold public office, and serve on a jury were restored,
and the restoration document must not warn about a
lingering firearms disability. See Buchmeier v. United States,
581 F.3d 561, 564, 566 (7th Cir. 2009) (en banc). We review de
novo whether a district court erred in sentencing a
defendant under the ACCA, “except to the extent that the
alleged error implicates a factual finding, which we review
for clear error.” Foster, 652 F.3d at 792 (internal quotation
marks omitted).
At his sentencing hearing, Mr. Shields testified that he
received a letter in 2003 stating that his civil rights were
restored. We have recognized, however, that a defendant
cannot meet his burden by relying on a vague recollection
that he received a letter restoring his civil rights. See id. at
793. Mr. Shields did not present the letter to the district
court, nor has he provided it on appeal. The only other
evidence to which Mr. Shields points in order to support his
claim that his civil rights were restored is the PSR. The PSR
indicates that his aggravated battery and residential
burglary sentences were discharged on May 9, 2002. 23 But
the discharge of Mr. Shields’s convictions does not, on its
own, establish that his civil rights were restored. See
Buchmeier, 581 F.3d at 564–65 (analyzing discharge letter to
determine if defendant’s civil rights were restored).
23 In his brief, Mr. Shields attempts to place the burden of proving
whether a prior conviction qualifies under the ACCA on the
Government. Mr. Shields invites our attention to the discharge language
in the PSR and concludes that the Government did not prove that the
prior convictions were “convictions” for the purposes of sentencing. As
we stated above, however, it is the defendant, and not the Government,
who must prove that his rights were restored.
28 No. 13-3726
Accordingly, Mr. Shields has not carried his burden, and
therefore the court did not err in considering his prior
convictions for sentencing under the ACCA.
F. Constitutionality of 18 U.S.C. § 922(g)(1)
Finally, Mr. Shields contends that § 922(g)(1) violates his
right to bear arms under the Second Amendment of the
United States Constitution. He relies on the Supreme Court’s
decisions in District of Columbia v. Heller, 554 U.S. 570 (2008),
and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), as
well as our decision in Moore v. Madigan, 702 F.3d 933 (7th
Cir. 2012).
The Supreme Court has recognized that the Second
Amendment protects an individual’s right to keep and bear
arms for his personal defense. See Heller, 554 U.S. at 635. The
Court noted, however, that nothing in its opinion “should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons.” See id. at 626. 24
Applying Supreme Court precedent, we have
acknowledged that some categorical bans on firearm
possession are constitutional. See United States v. Skoien, 614
F.3d 638, 641 (7th Cir. 2010) (en banc). Indeed, in United
States v. Williams, 616 F.3d 685 (7th Cir. 2010), we addressed
the exact question presented here: whether the prohibition of
24 Accord McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (plurali-
ty opinion) (“We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as prohibitions on the
possession of firearms by felons… . We repeat those assurances here.”
(internal quotation marks omitted)).
No. 13-3726 29
firearm possession by a convicted felon under § 922(g)(1) is
constitutional. We concluded that keeping firearms out of
the hands of violent felons is an important objective, and,
because the defendant was a violent felon, applying
§ 922(g)(1) to the defendant was substantially related to that
objective. See id. at 693.
Because Mr. Shields was convicted of three violent
felonies, applying § 922(g)(1) here is substantially related to
the Government’s important interest in keeping firearms
away from violent felons. We thus conclude that § 922(g)(1)
is constitutional as applied to Mr. Shields.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED