NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 27, 2010
Decided October 15, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2139
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Western
Plaintiff‐Appellee, District of Wisconsin.
v. No. 3:09‐cr‐00124‐bbc‐1
CARLOS LEWIS, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Carlos Lewis was convicted by a jury of being a felon in possession of a firearm and
ammunition in violation of
18 U.S.C. § 922(g)(1). He appeals, claiming both a violation of the
Speedy Trial Act,
18 U.S.C. § 3161, et seq., and that the evidence was insufficient to support his
conviction.
The Speedy Trial Act violation claim is a non‐starter because Lewis failed to move to
dismiss the indictment prior to the start of his trial. So the issue, as far as our review is
concerned, is waived. See United States v. Broadnax,
536 F.3d 695 (7th Cir. 2008). But even if
Lewis had made the motion, and even if it would have been granted, he would have gained
No. [10‐2139] Page 2
nothing except more delay as the dismissal, in all likelihood, would have been without
prejudice to the issuance of a new indictment. Why do we say that? Well, because even if some
of the time between Lewis’ indictment and the start of his trial should not have been excluded
from the 70‐day speedy trial clock as recently clarified by Bloate v. United States,
130 S.Ct. 1345
(2010), the “violation” here would have been minor and dismissal of the charges with prejudice
would have been too drastic a remedy to impose for the violation. Lewis would have been
indicted again and his trial would have kicked off a few months later.
Turning to the sufficiency of the evidence claim, we start by recalling the facts, as we are
required to do at this stage of the case, in the light most favorable to the jury verdict. As so
viewed, Lewis, who was a felon in August of 2009, got into a squabble with a Madison
(Wisconsin) taxi driver over a fare. Things became heated when Lewis told the driver, in a
threatening manner, “I have something for you.” Alarmed, the cab driver hailed a nearby police
officer at which point Lewis got out of the cab and started to walk away. The officer asked him
to stop but Lewis took off running. The officer gave chase. Although he briefly lost sight of
Lewis when he rounded a corner, as luck (bad luck, actually, for Lewis) would have it, an
employee of an Einstein Bagels store close to the chase route was outside his store having a
smoke. He noticed a man running around a corner and he saw him “chuck” something onto
the roof of a building belonging to a concern called Dream Bikes. Immediately after seeing this,
the watchful employee saw a police officer round the same corner chasing the man. The officer
saw the man climb a fence. Lewis was subsequently arrested by officers while hiding under
some bushes near the fence. Later, a loaded Glock .22 caliber pistol was recovered from the
roof of the Dream Bikes building by one of the officers. The issue for the jury was simple: did
Lewis, a felon, possess the gun recovered from the roof?
Prevailing on a sufficiency of the evidence claim is a tall order for any defendant,
because he must show that after viewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could find guilt beyond a reasonable doubt. United States
v. Stevens,
453 F.3d 963, 965 (7th Cir. 2006). To sustain a conviction under
18 U.S.C. § 922(g)
possession of a firearm may be actual or constructive. United States v. Hampton,
585 F.3d 1033,
1040 (7th Cir. 2009). Actual possession exists when a person “knowingly maintains physical
control over an object.” Stevens,
453 F.3d at 965. Juries are entitled to use common sense in
making reasonable inferences from circumstantial evidence, and circumstantial evidence is no
less probative of guilt than direct evidence. United States v. Starks,
309 F.3d 1017, 1021 (7th Cir.
2002).
It’s true that no witness testified to actually seeing Lewis with a gun. Nor was any
fingerprint or DNA evidence offered to directly connect Lewis to a gun. But there was, we
think, sufficient circumstantial evidence pointing to the conclusion that he did. First, he made
what could be considered a verbal threat to the taxi driver. Second, he bolted when the officer
asked him to stop. As a felon who could not legally possess a gun, disregarding the command
No. [10‐2139] Page 3
of the officer and running away supports the inference that he had something (a gun?) that he
didn’t want to be caught possessing. Add to this the heads‐up observations of the chase by the
Einstein Bagels employee, the recovery of the Glock on the roof of the Dream Bikes store where
the employee saw Lewis “chuck” something while being pursued by an officer, and the
discovery of Lewis hiding in some bushes at the end of the chase route. Putting this all together,
we think the jury could have reasonably concluded that Lewis possessed the gun before he
tossed it on the roof with an officer in hot pursuit.
For these reasons, the judgment of the district court is AFFIRMED.
