United States v. Hines, Brian L. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2542
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN L. HINES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 10014—Joe Billy McDade, Judge.
____________
ARGUED DECEMBER 9, 2005—DECIDED JUNE 5, 2006
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. On February 18, 2004, a grand jury
sitting in the Central District of Illinois returned a two-count
indictment charging Brian Hines with bank fraud. See 18
U.S.C. § 1344. Mr. Hines subsequently filed a motion to
suppress evidence seized from his vehicle, which included
false forms of identification that led to an investigation of
his financial activities. After the district court denied this
motion, Mr. Hines, while reserving the right to appeal the
district court’s denial of his motion to suppress, see Fed. R.
2 No. 05-2542
Crim. P. 11(a)(2), pleaded guilty to both counts. The district
court sentenced him to concurrent terms of 37 months’
imprisonment on each count, followed by concurrent terms
of five years’ supervised release. The district court also
imposed a restitution obligation of $40,150.64.
Mr. Hines now appeals. He submits that the search of his
vehicle and the seizure of his false identification found in
the vehicle were unreasonable. He also contends that the
district court erred in placing on him the burden to produce
evidence that a two-level sentencing enhancement for use of
false identification to obtain another means of identification
was improper. See U.S.S.G. § 2B1.1(b)(10) (C)(i). For the
reasons set forth in the following opinion, we uphold the
search of Mr. Hines’ vehicle as supported by probable
cause, but remand for resentencing in light of the district
court’s misallocation of the burden of proof on the sentenc-
ing enhancement.
I
BACKGROUND
A. Facts
On December 29, 2003, FBI Special Agent Nicholas
Zambeck received a phone call from the United States
Probation Office, advising him that, according to customs
officials in Buffalo, New York, Mr. Hines had crossed the
border from Canada to New York the previous day. Mr.
Hines was under supervised release at the time as a result
of a prior conviction for possession of a firearm; leaving the
United States without permission constituted a violation
of the terms of his release. According to customs officials,
Mr. Hines used a fake Ohio driver’s license, bearing the
No. 05-2542 3
name “Huthiafa Abdul-Hakeem,” to cross the border. He
was traveling in a dark blue van with Illinois license plates.
For three days after receiving the call, the FBI placed Mr.
Hines’ two known residences in Peoria, Illinois, under
surveillance. On the afternoon of the third day, Agent
Zambeck, Agent Kerry Meyer and others arrived at one of
Mr. Hines’ residences. They found the house dark and the
driveway empty. The agents’ testimony varies on what
happened next: Agent Zambeck testified at the hearing on
the motion to suppress that, mid-afternoon, he and Agent
Meyer left the Hines’ residence to “link up with the other
[United States] marshals that were assisting [them]” at a
nearby intersection. R.32 at 10. He claims that they returned
to the Hines’ residence within “two or three minutes.” Id.
Agent Meyer, by contrast, testified at a revocation hearing
that, although he and Agent Zambeck had been outside Mr.
Hines’ residence for “most of the afternoon,” they “took a
break [in the late afternoon], came back to [their] office in
Peoria, [and] went to get something to eat”—a chain of
events that presumably took more than two or three
minutes. R.7, Ex.1 at 12-13.
When the agents and United States deputy marshals
returned to the Hines residence after these events, they
noticed a dark blue Chevrolet Suburban, whose exterior and
license plates matched the description of the van reportedly
used to cross the Canadian border two days prior, parked in
the driveway. Its “side doors were ajar” and it was “backed
in adjacent to [the residence],” giving the impression that it
was being unloaded—although no one was outside. R.32 at
10 (Zambeck Test.). Agent Zambeck and Deputy Marshal
Tim McFarden then approached the house, announced that
they had a warrant for Mr. Hines’ arrest and spoke with Mr.
Hines’ wife, who claimed that she did not know where her
4 No. 05-2542
husband was. Agents Zambeck and McFarden then con-
ducted a room-by-room search. In the bedroom, they
noticed car keys on the upper bunk bed, below an attic
hatch-door. Believing Mr. Hines to be hiding in the attic,
they made known that they “were going to go back and get
the dog to bring into the house.” Id. at 13-14. Mr. Hines then
revealed himself. While still in the home, he was arrested,
handcuffed and searched on the authority of a warrant
previously issued by the district court for violation of the
terms of his supervised release.1 Escorted by Agents
Zambeck and McFarden, Mr. Hines then was led down-
stairs, out the front door and past the blue van to the police
car. He was secured in the back seat of the police car.
When he walked by the van on his way to the squad car,
Agent Zambeck, shining a “light into the front driver’s
side compartment,” noticed a six- to eight-inch hatchet lying
on the floorboard of the vehicle. Id. at 18. He requested Mr.
Hines’ consent to search the van; Mr. Hines refused,
claiming that the item was merely an engraved trophy, not
a hatchet. Agent Zambeck then called an Assistant United
States Attorney to discuss the lawfulness of searching the
vehicle; the attorney told him it would be best to impound
the vehicle, inventory its contents and later obtain a search
warrant for a more complete investigation. This plan was
conveyed to Mr. Hines. Concerned that his wife would be
without a vehicle if the van was impounded, Mr. Hines
agreed to a search of the vehicle and signed a written
1
For this violation, Mr. Hines’ term of supervised release was
revoked and, on March 24, 2004, he was sentenced to 24 months’
imprisonment. The validity of this sentence is not in question
on appeal.
No. 05-2542 5
consent form.2
The agents searched the van in Mr. Hines’ presence. They
found and seized the hatchet; a notary stamp; an embossing
tool that reads, “Seal of Cook County Illinois”; and a brown
wallet containing the fake Ohio driver’s license. See R.8,
Def.’s Ex.3 at 1. The car was not impounded.
The false driver’s license led to a larger investigation into
Mr. Hines’ use of the alias, “Huthiafa Abdul-Hakeem.” The
police ultimately discovered that Mr. Hines had used this
alias, and the fake Ohio driver’s license in that name, to
obtain two loans from Citizen Equity Federal Credit Union
(“CEFCU”). The first loan was in the amount of $200 for
the purchase of a computer; the second was in the amount
of $46,102 for the purchase of a car. According to a CEFCU
official with whom the Government spoke, the alias played
a dispositive role in the decision to loan money to Mr.
2
The agents apparently planned to leave the vehicle for Mr.
Hines’ wife’s use before they saw the hatchet in the car. They had
given her the keys. But, when they saw the hatchet, the agents
admit that they used the possibility of depriving the wife of a car
to encourage Mr. Hines to consent to a search:
Q: Was there some discussion about the vehicle being
unavailable to his wife for use at that point in time?
A: Yes, there was.
Q: Can you relate to us what that was?
A: Merely that I told him that the vehicle would be
impounded and that, in fact, he would not have access
to it, implying that nobody else would either. . . . [H]e
agreed to consent to a search in lieu of having the
vehicle removed . . . .
R.32 at 21-22 (Zambeck Test.).
6 No. 05-2542
Hines; had the credit union known of Mr. Hines’ true
identity and of his criminal and credit history, they likely
would not have loaned him these funds. See R.33 at 17
(describing a conversation with authorities at CEFCU).
B. District Court Proceedings
On February 18, 2004, a grand jury in the Central District
of Illinois returned a two-count indictment that charged Mr.
Hines with bank fraud. See 18 U.S.C. § 1344. On May 4,
2004, Mr. Hines filed a motion to suppress the evidence
found in his vehicle, including the Ohio driver’s license that
led to the investigation of his bank activities, as the product
of an illegal and unreasonable search.
The district court denied this motion on May 20, 2004. It
determined that the agents’ search of the vehicle was not
supported by voluntary consent because the agents had
no lawful authority to “impound the vehicle and subject
it to an inventory search as they claimed.” R.9 at 2. The
court further determined that the search was not sup-
ported by probable cause because the hatchet was not
contraband, and there was no basis for believing that the
wallet, containing other fruits of illegal activity, would be
found in the van. Id. at 3. Nevertheless, in the district court’s
view, the search was valid as an automobile search incident
to arrest. The district court dismissed the fact that Mr. Hines
was handcuffed and in the back seat of the squad car before
the search commenced. Relying on United States v. Willis, 37
F.3d 313 (7th Cir. 1994), and United States v. Arango, 879 F.2d
1501 (7th Cir. 1989), the court concluded:
[O]nce [Mr. Hines] was brought outside in close prox-
imity to the car that he had only recently vacated, the
No. 05-2542 7
rationale for the automobile exception is implicated; a
search of the car is authorized for accessible weapons or
evidentiary items, no matter that Defendant was cuffed
and incapable of entering the automobile. I find this
result troubling, but it appears to be consistent with our
circuit court’s commitment to a “bright-line” rule in
applying the “incident to arrest” exception.
R.9 at 6. Mr. Hines, while reserving the right to appeal the
district court’s evidentiary ruling on the lawfulness of the
search, pleaded guilty to both counts of bank fraud. See 18
U.S.C. § 1344.
At Mr. Hines’ sentencing hearing, the Government
called two witnesses. The first was the Vice President of
Consumer Lending for CEFCU, who testified to the amount
of loss for the purpose of calculating restitution. The second
was FBI Special Agent Robert Brown, who detailed the FBI’s
investigation into Mr. Hines’ use of a false identification for
loan-related purposes. In pertinent part, Agent Brown
confirmed that Mr. Hines had applied for an Ohio driver’s
license using a false name and that the license had been
issued by the Secretary of the State of Ohio. He also testified
to whether the information on Mr. Hines’ Ohio driver’s
license belonged to an actual person:
Q: In conducting the investigation, have you
verified whether the name, the date of birth,
or the social security number was of an actual,
not fictitious individual other than the defen-
dant Brian Hines?
A: The name did not belong to any other indi-
vidual.
Q: Social security number?
A: No.
8 No. 05-2542
Q: Date of birth?
A: No.
...
Court: Let me make sure I understand that. You are
stating that the name used in connection with
these three exhibits, the social security num-
ber, the date of birth, did not belong to any
real person?
A: Did not belong to any person other than Mr.
Hines. Did not belong to a real person other
than Mr. Hines.
...
Court: Okay. Was the social security number used
real in a sense that it had been issued by the
United States Government?
A: I don’t know, Your Honor.
R.31 at 32-33.
On the basis of this testimony, the Government requested
an enhancement for “use of any means of identification
unlawfully to produce or obtain any other means of
identification.” U.S.S.G. § 2B1.1(b)(10)(C)(i). Defense counsel
objected and submitted that, for U.S.S.G. § 2B1.1(b)(10)(C)(i)
to apply, the false means of identification used must be that
“of an actual (i.e., not fictitious) individual, other than the
defendant.” Id. § 2B1.1(b)(10) (C)(i), cmt. 9(A). Because
Agent Brown’s testimony indicated that the name, social
security number and birth date used to obtain the Ohio
driver’s license did not belong to a real person, Mr. Hines
insisted that the sentencing enhancement was improper.
No. 05-2542 9
The district court initially agreed with this contention. It
took the view that the Government has the burden to prove
by a preponderance of the evidence that a particular
sentencing enhancement is proper. However, after further
discussion of this issue, the district court concluded that the
Government is not required to
prove anything . . . until the defendant has caused by
presenting something to make the Government prove
up its burden. . . . Now if the defendant or some other
witness for the defendant wishes to testify about
[whether the alias used was that of a real person], then
I take the position that the Government must bear the
burden of proving [that the sentencing enhancement is
proper]. . . . [It is] not put to that task until the defen-
dants [sic] had gone forth sufficiently to cause the
Government to be in that position.
R.31 at 90. The district court concluded that, because Agent
Brown “was not presented to testify with reference to [the
objection to the § 2B1.1(b)(10)(C)(i) enhancement],” his
testimony could not be used to “suggest to the Court that
now the Government has to carry its burden.” Id. at 91.
The district court calculated Mr. Hines’ sentence as
follows: The base offense level was 6. A 6-point upward
enhancement was added for a loss of more than $30,000 but
less than $70,000, see U.S.S.G. § 2B1.1(b)(1)(D); a 2-point
enhancement was added for “use of any means of identifica-
tion unlawfully to produce or obtain any other means of
identification,” id. § 2B1.1(b)(10)(C)(i); and a 2-point reduc-
tion was granted for acceptance of responsibility, id. §
3E1.1(a). This calculation resulted in a total offense level of
12 and, coupled with a Criminal History Category of VI,
yielded a sentencing range of 30-37 months. The district
court sentenced Mr. Hines to 37 months’ imprisonment on
10 No. 05-2542
each count, to run concurrently,3 followed by two concur-
rent terms of 5 years’ supervised release. The court also
imposed a restitution obligation in the amount of $40,150.64.
II
ANALYSIS
A. Motion to Suppress
Mr. Hines first contends that the district court erred in
holding that the agents’ search of his van was justified as a
search incident to his arrest. The district court held that,
under our recent precedent, although Mr. Hines was
secured in the backseat of the squad car before the search
commenced, the search was valid because he had been a
recent occupant of the van and, after his arrest, had been
brought by the agents within close proximity of the vehicle.
In reviewing a district court’s ruling on a motion to sup-
press, we review questions of law de novo and findings of
fact and reasonable inferences drawn from those findings
for clear error. United States v. Yang, 286 F.3d 940, 944 (7th
Cir. 2002).
While the parties strongly dispute whether the search of
Mr. Hines’ van can be justified as a search incident to his
arrest, we need not reach this issue.4 Contrary to the district
court’s conclusion, the agents’ search was supported by
probable cause.
3
The district court also ordered that Mr. Hines’ sentence run
concurrently with the sentence previously imposed for his
violation of the terms of his supervised release. See R.26 at 2.
4
For the same reason, we need not reach the question of whether
the search was supported by Mr. Hines’ voluntary consent.
No. 05-2542 11
Under the automobile exception to the warrant require-
ment, a law enforcement officer need not have a warrant to
search a vehicle when “there is probable cause to believe
that the search will uncover contraband or evidence of
crime.” United States v. Pittman, 411 F.3d 813, 817 (7th Cir.
2005); see also Maryland v. Dyson, 527 U.S. 465, 467 (1999)
(holding that there need not be an exigency for the automo-
bile exception to apply); United States v. Washburn, 383 F.3d
638, 641 (7th Cir. 2004) (explaining that this doctrine is
justified primarily by the realization that, because a car is
mobile, evidence could be destroyed before a search warrant
may be obtained). “[D]etermining whether probable cause
exists involves ‘a practical, common-sense decision whether,
given all the circumstances set forth . . . there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.’ ” United States v. Markling, 7
F.3d 1309, 1317 (7th Cir. 1993) (quoting with alteration
Illinois v. Gates, 462 U.S. 213, 238 (1983)).
A fair reading of the record establishes that the agents had
probable cause to believe that the van would contain
evidence of Mr. Hines’ alias and the identification used to
travel to and from Canada.5 The agents had learned from
5
The Government also suggests that there was probable cause
to believe that the van contained weapons, supported by Agent
Zambeck’s sighting of the hatchet. This claim is without merit.
Probable cause requires a reasonable belief that a search will turn
up “contraband or evidence of crime.” United States v. Pittman,
411 F.3d 813, 817 (7th Cir. 2005). The hatchet itself was not
contraband, and its possession was not illegal. Nor was its
existence in the car indicative of other illegal activity. Impor-
tantly, the evidence the FBI had gathered at that point on Mr.
Hines did not suggest violent activity, somehow linked to the
(continued...)
12 No. 05-2542
customs officials that, only three days prior, Mr. Hines had
crossed the border from Canada to Buffalo, New York, in a
dark blue van matching the description and license plates of
the Chevrolet Suburban parked in Mr. Hines’ driveway. At
the time of the border crossing, he used a fake Ohio driver’s
license; this license was presumably also in his possession
when he arrived home on December 31. Nevertheless, the
police did not find the license on Mr. Hines’ person when
they searched him contemporaneous to his arrest; nor was
it in the immediate vicinity. See R.32 at 16 (Zambeck Test.).
Moreover, only a short time had passed between when Mr.
Hines arrived home in the van—the same van in which he
was traveling when he crossed the border, using the false
5
(...continued)
possession of a hatchet; rather, he had been tied to leaving the
country illegally. In addition, unlike the other cases in which
we have found that a knife or similar tool in a car creates
probable cause to search that vehicle, the Government can
point to no other evidence corroborating the belief that the van
contained contraband or evidence of illegal activity linked to
weapon possession. Cf. United States v. Tumea, 2002 WL 31695094,
at *2 (7th Cir. Dec. 2, 2002) (holding that seeing a knife and
canister in the car—items consistent with an anonymous tip that
the car contained dangerous weapons—gave the police probable
cause to search the vehicle); United States v. Pace, 898 F.2d 1218,
1229 (7th Cir. 1990) (“Given that [the police officers] had probable
cause to believe that [the defendants] were hit men, it was
reasonable for them to believe that [they] were carrying the tools
of their trade.”).
Notably, the Government makes no argument that Mr. Hines’
status as an individual on supervised release gave them any
authority to search the van. Nor does the Government argue that
his previous conviction for being a felon in possession of a
firearm in any way justified a search of the van.
No. 05-2542 13
identification—and his subsequent arrest.6 Indeed, it
reasonably appeared to the officers that the process of
unloading the van was still in progress. Given these facts, it
was objectively reasonable for the police to believe that the
identification might be found inside the van. This conclu-
sion is bolstered by the fact that Mr. Hines’ wife had lied to
the police when they first approached the house and asked
if she knew where her husband was, as well as evidence that
Mr. Hines quickly fled from the vehicle and hid in the attic,
only revealing himself when the agents threatened to “bring
in the dog.” Id. at 13. Both circumstances are suspicious and,
when coupled with the other facts described above, could
lead a law enforcement officer to conclude reasonably that
the van contained evidence of Mr. Hines’ unauthorized trip
to Canada while on supervised release.7
6
This assessment holds true regardless of the difference in the
agents’ testimony concerning whether they were absent from
their post for two minutes or longer. Under both accounts, the
time during which the agents were absent from Mr. Hines’
residence was likely less than an hour.
7
The parties dispute whether the agents asked Mr. Hines about
the whereabouts of his wallet before the search. In addition, as
the defense points out, the agents returned the van keys to Mr.
Hines’ wife after arresting Mr. Hines, apparently believing at
the time that the van did not contain evidence of criminal
activity. Nevertheless, the existence of probable cause is an
objective, not a subjective, inquiry. It depends exclusively on
whether the evidence, viewed from the position of a reasonable
police officer, gives rise to probable cause to search the vehicle.
See Ornelas v. United States, 517 U.S. 690, 696 (1996) (“[The proper
inquiry is] whether [the] historical facts, viewed from the
standpoint of an objectively reasonable police officer amount
to . . . probable cause.”); Whren v. United States, 517 U.S. 806, 813
(continued...)
14 No. 05-2542
B. Burden of Proof on Sentencing Enhancement
Mr. Hines also submits that the district court erred in
requiring him to bear the initial burden of production
concerning whether his false identification was that of an
“actual individual.” U.S.S.G. § 2B1.1(b)(10)(C)(i), cmt. 9(A).
The district court held that, although the Government has
the ultimate burden of proof for sentencing enhancements,
it is not required to “prove anything” until the defendant
presents sufficient evidence refuting the applicability of the
enhancement. R.31 at 90. The Government concedes, and we
agree, that the district court’s conclusion is inconsistent with
our precedent and, therefore, resentencing is appropriate.
This court’s case law clearly places upon the Government
a “burden to prove by a preponderance of the evidence that
[a particular] sentencing enhancement is warranted.” United
States v. Ewing, 129 F.3d 430, 434 (7th Cir. 1997). The district
court was correct in recognizing that forfeiture principles
require a defendant to make a specific objection to a sen-
tencing enhancement. However, no principle of law requires
that such an objection be supported by the testimony of a
witness called by the defense; an oral or written statement
of reasons for the objection suffices to place the court and
the Government on notice of the content of the challenge.
See United States v. Gracia, 272 F.3d 866, 872, 877 (7th Cir.
2001) (requiring the Government to “carr[y] its burden of
proof by a preponderance of the evidence regarding [sen-
tencing enhancement] matters,” when the defendant filed
written objections to the Presentence Report but presented
7
(...continued)
(1996) (“Subjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.”). Therefore, these facts are
not relevant to the probable cause inquiry.
No. 05-2542 15
“no additional evidence” at the sentencing hearing (internal
quotation marks omitted)). In this case, the defense objected
in writing to the sentencing enhancements recommended in
the Presentence Report, including the 2-point enhancement
under § 2B1.1(b)(10)(C)(i). These objections were repeated
orally at the sentencing hearing. These measures were
certainly sufficient to require the Government to carry its
burden of proving, by a preponderance of the evidence, that
the false information used by Mr. Hines was that of an
“actual person,” as required by the Commentary to the
Sentencing Guidelines. U.S.S.G. § 2B1.1(b)(10)(C)(i), cmt.
9(A). The Government concedes that it did not meet this
burden. Agent Brown testified that the name on the Ohio
driver’s license, “Huthiafa Abdul-Hakeem,” as well as the
birth date cited on the license, does not belong to a real
person. See R.31 at 32-33. While Agent Brown could not state
conclusively whether the social security number fraudu-
lently used by Mr. Hines had been issued previously by the
United States Government, this lack of information merely
reflects a lack of proof on the Government’s part—not that,
as the district court held, the defendant was required to
rebut this uncertainty by calling additional witnesses.
“An incorrect application of the guidelines,” as occurred
here, “requires resentencing under the post-Booker sentenc-
ing regime.” United States v. Scott, 405 F.3d 615, 617 (7th Cir.
2005). Therefore, we remand the case to the district court to
recalculate Mr. Hines’ sentence in light of this opinion.
Conclusion
For the reasons set forth in this opinion, we affirm the
district court’s ruling that the search and seizure of items in
Mr. Hines’ van, including his false identification, was
16 No. 05-2542
reasonable because it was based on probable cause. We
vacate the district court’s application of a two-point sentenc-
ing enhancement under U.S.S.G. § 2B1.1(b)(10)(C)(i) and
remand to the district court for proceedings consistent with
this opinion.
AFFIRMED in part;
VACATED and REMANDED in part
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-5-06