Walter Hill v. Joseph Murphy , 785 F.3d 242 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2709
WALTER D. HILL,
Plaintiff-Appellant,
v.
JOSEPH R. MURPHY, Special Agent, individually, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 11 C 172 — Michael J. Reagan, Chief Judge.
____________________
SUBMITTED MARCH 12, 2015 — DECIDED MAY 4, 2015
____________________
Before POSNER, EASTERBROOK, and TINDER, Circuit Judges.
POSNER, Circuit Judge. In Heck v. Humphrey, 512 U.S. 477,
487 (1994), the Supreme Court held (so far as relates to this
case) that a person who has been convicted of a crime cannot
seek damages or other relief under federal law (as in a suit
under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)) for
violation of his rights by officers who participated in the in-
vestigation or prosecution of the criminal charge, if “a judg-
2 No. 13-2709
ment in favor of the plaintiff [in the civil suit] would neces-
sarily imply the invalidity of his conviction or sentence.” The
district judge held that a judgment in Hill’s favor would,
and so dismissed Hill’s suit (a Bivens action), precipitating
this appeal.
Hill had pleaded guilty in the criminal case to attempted
extortion, in violation of 18 U.S.C. § 1951, and to making a
false statement to federal investigators concerning his extor-
tionate activities, in violation of 18 U.S.C. § 1001(a)(2). (He
was the Deputy Liquor Commissioner of East St. Louis, Illi-
nois, and was alleged to have extorted bribes from liquor li-
censees.) He was sentenced to 60 months in prison. We af-
firmed the judgment in United States v. Hill, 645 F.3d 900 (7th
Cir. 2011).
The two defendants in this civil suit, an FBI agent and an
IRS agent, had interviewed the plaintiff at his home before
he was indicted and had gotten him to make damaging ad-
missions. In this civil suit for damages he claims that the de-
fendants forced their way into his house with drawn weap-
ons, searched the house, seized and kept his lawfully owned
handgun, and twirled a loaded gun in “John Wayne” fash-
ion, making Hill “so scared” that he was “in tears.” He felt
“like a hopeless prisoner” in his own home when he tried to
answer his phone and was “placed at gunpoi[n]t.” While be-
ing questioned he felt disoriented, was crying from the pain
in his head, and blacked out, but the agents did not call for
medical assistance—he later learned that he had suffered a
stroke. He was “under the gun, literally,” he says, and “felt
pressured and under duress” to answer the defendants’
questions. We accept these allegations as true for purposes
of this appeal.
No. 13-2709 3
He argues that by detaining him against his will, search-
ing his home, and seizing his gun, all without his consent,
plus using excessive force, ignoring his medical needs, and
coercing him to answer their questions, the defendants vio-
lated his Fourth Amendment right to be free from an unrea-
sonable search and seizure and his Fifth Amendment right
to due process of law.
His specific Fourth Amendment claims are illegal entry,
unlawful detention, unlawful seizure of a gun of which he
was the lawful owner, deliberate indifference to his medical
needs, and use of excessive force. These claims were proper-
ly brought under the Fourth Amendment because the inju-
ries complained of were inflicted before there had been a ju-
dicial determination of probable cause. Currie v. Chhabra, 728
F.3d 626, 629--30 (7th Cir. 2013); Lopez v. City of Chicago, 464
F.3d 711, 719 (7th Cir. 2006).
His Fifth Amendment claim concerns three statements
that he made to the officers—statements that he alleges were
extracted from him by the tactics of intimidation described
above. The statements are his denial to the officers that he
had sent a bagman to collect bribes for him (this lie was the
basis of the false-statement charge against him); his admis-
sion minutes later that the denial was indeed a lie; and his
acknowledging that the mayor, who doubled as the Liquor
Commissioner of East St. Louis (the plaintiff was as we not-
ed the Deputy Liquor Commissioner), had failed to exercise
proper supervision over him, a failure that facilitated his
bribe taking.
The Fourth Amendment claims that we have listed are
not barred by the principle of Heck v. Humphrey (such claims
rarely are, see Wallace v. City of Chicago, 440 F.3d 421, 426–28
4 No. 13-2709
(7th Cir. 2006), affirmed under the name Wallace v. Kato, 549
U.S. 384 (2007); VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir.
2006); Covey v. Assessor of Ohio County, 777 F.3d 186, 197 (4th
Cir. 2015); Hooper v. County of San Diego, 629 F.3d 1127, 1133–
34 (9th Cir. 2011); Hughes v. Lott, 350 F.3d 1157, 1160–61 (11th
Cir. 2003)). If the police roughed up Hill, seized his gun
without justification, waved a loaded gun in his face, and so
on, these outrages, constituting violations of his Fourth
Amendment right not to be subjected to an unreasonable
search and seizure, would entitle him to damages for physi-
cal and psychological injury resulting from the search and
seizure and for the expropriation of his gun. That would be
true even if he‘d never been prosecuted. But such violations
of his rights would not exonerate him from the false state-
ment and attempted-extortion charges that were the only
grounds of his convictions.
One of Hill’s due process claims, in contrast, challenges
his false-statement conviction head on. That is the claim that
he was coerced to answer the officers’ question whether he
used a bagman. Coerced to speak, he lied, and the lie was
the basis of his conviction for making a false statement to the
officers. The point was not that he was coerced to lie; doubt-
less the officers would have preferred a truthful answer,
which would have nailed down his guilt of extortion but left
no room for his also being convicted of making a false
statement to the government. But had he not been coerced to
speak, and as a result had remained silent, or (perhaps in re-
sponse to noncoercive questioning, told the truth), he could
not have been convicted of making a false statement. There-
fore proof in this civil case that the conviction was based on
a violation of his constitutional rights would be inconsistent
with the conviction and so is barred by Heck.
No. 13-2709 5
This sounds not like a due process claim, but rather like a
self-incrimination claim. Hill was forced to speak, and in
speaking he incriminated himself by making a false state-
ment. He doesn’t mention self-incrimination, but since we
are vacating much of the judgment and remanding, he may
on remand decide to add a self-incrimination claim and the
judge might let him do so. Furthermore, as we’ll note at the
end of this opinion, he might argue that his false statement
was the product of the excessive-force violation of the
Fourth Amendment that he alleges. In an effort to stave off a
further appeal, we shall consider whether such an addition
to the plaintiff’s suit would be barred by Heck v. Humphrey.
A Fourth Amendment claim based on violence or threats
used to extract the statement (conduct that violates the
Fourth Amendment “right of the people to be secure in their
persons … against unreasonable searches and seizures”)—a
claim unrelated to the truth or falsity of the statement—is
very different from a Fifth Amendment self-incrimination
claim based on the use of the statement to convict him of
making a false statement. The first claim, a Fourth Amend-
ment excessive-force claim that the plaintiff could press in
this civil case even if his lie about the bagman had not been
used in the criminal case, is unproblematic; a self-
incrimination claim, in contrast, would be deeply problemat-
ic, as we’re about to see.
But the fact that Hill admitted the lie—the admission be-
ing his second statement—along with the further fact that he
admitted that the mayor hadn’t supervised him effectively
(the third statement), were not grounds for the false-
statement charge: neither telling the truth nor committing
extortion is making a false statement. The lie was the false-
6 No. 13-2709
statement crime of which he was convicted; the admission
was merely evidence of the lie, and as explained in Heck “a
suit for damages attributable to an allegedly unreasonable
search may [be maintained] even if the challenged search
produced evidence that was introduced in a state criminal
trial that resulted in the plaintiff’s still-outstanding convic-
tion. Because of doctrines like independent source and inevi-
table discovery, and especially harmless error, such a § 1983
action, even if successful, would not necessarily imply that
the plaintiff’s conviction was unlawful.” Heck v. Humphrey,
supra, 512 U.S. at 487 n. 7 (emphasis in original and citations
omitted); see also Apampa v. Layng, 157 F.3d 1103, 1105 (7th
Cir. 1998).
These observations are pertinent because we know from
the presentence report that the government had ample evi-
dence, even without Hill’s confession, to prove that he had
lied—it had video and audio surveillance of his bagman col-
lecting payments on his behalf. The use against Hill of his
admission of having lied (the use consisting of including the
statement in the stipulation of facts as a factual basis for the
plea—had Hill’s statements never been “used” against him
he wouldn’t have a Fifth Amendment claim, Chavez v. Mar-
tinez, 538 U.S. 760, 767 (2003)) was thus a harmless error.
The same is true of Hill’s statement about the absence of
mayoral oversight, which earned him an increase in his sen-
tence for being a “public official in a high-level decision-
making or sensitive position.” U.S.S.G. § 2C1.1(b)(3). The ab-
sence of oversight amounted to a de facto delegation of
mayoral authority to him; his statement that “the [m]ayor
does not really know what he is doing in reference to liquor
licenses” revealed that Hill occupied a high-level decision-
No. 13-2709 7
making position. Other evidence pointed in the same direc-
tion. Hill and the mayor had been friends since college; Hill
stood in for the mayor at public events; and the mayor had
created the position of Deputy Liquor Commission just for
Hill. United States v. Hill, supra, 645 F.3d at 907. The presen-
tence report, moreover, reveals that local business owners
provided statements to the government about the extent of
Hill’s authority. One of the statements was that the mayor
had “referred [the business owner in question] to Hill,
whom [the mayor] identified as the individual who could
renew [the business owner’s] liquor license.”
So even if the second and third statements were coerced,
Hill’s false-statement and attempted-extortion convictions
and sentences would not be undermined. In contrast, his re-
sponse to the question whether he had sent a bagman to col-
lect bribes from liquor licensees was not only a ground but
the ground of his conviction for making a false statement. As
we noted earlier, had he remained silent—made no state-
ment—he could not have been convicted of making a false
statement. That makes this case like Okoro v. Callaghan, 324
F.3d 488, 490 (7th Cir. 2003), in which, as we explained in
McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006), “specific
factual allegations in the complaint [in this case, that Hill
was forced to speak, and in speaking lied] are necessarily
inconsistent with the validity of the conviction.”
Now one might be inclined to think that a lie is a lie; if
the officers had asked Hill politely whether he used a bag-
man, he would have lied and been convicted; how then
could the use of force have affected the outcome of his crim-
inal trial? But we can have no idea what he would have said
had they asked him politely. He might have told the truth,
8 No. 13-2709
but instead he might have lied in terror—he might have
feared that if he admitted using a bagman, the officers, con-
vinced now of his guilt, would really have beaten him up.
Had they asked him politely he might have ‘fessed up to his
use of a bagman, as indeed he did shortly afterward.
We can make this point a little clearer by reference to the
venerable distinction between “actus reus” and “mens rea.”
The former is the guilty act, the latter the guilty mind that
decided to do the guilty act. An act, Holmes explained, “is
always a voluntary muscular contraction, and nothing else.”
O. W. Holmes, Jr., The Common Law 91 (1881). In this case the
voluntary muscular contraction was Hill’s mouthing a deni-
al that he used a bagman. But was there a guilty mind? If
terror caused him to lie, the lie was not willful, which would
distinguish this case from such cases as Bryson v. United
States, 396 U.S. 64, 69--70 (1969), where we read that “the ju-
ry’s verdict reflects a determination that petitioner’s false
statement was knowingly and willfully made. This negates
any claim that petitioner did not know the falsity of his
statement at the time it was made, or that it was the product
of an accident, honest inadvertence, or duress”; see also
United States v. Knox, 396 U.S. 77, 83--84 (1969); Kay v. United
States, 303 U.S. 1 (1938); United States v. Kapp, 302 U.S. 214
(1937). If the lie was intentional rather than a mere terror re-
flex, there would be a guilty mind but a defense of duress,
see Dixon v. United States, 548 U.S. 1, 6–7 (2006), so the con-
sequence—a challenge in the civil proceeding to the correct-
ness of his conviction of making a false statement—would be
the same. If the agents were torturing him to speak and Hill
thought they’d brutalize him further if he implicated him-
self, lying would have been his only recourse to avoid fur-
ther brutalization.
No. 13-2709 9
Against concluding that basing a civil suit on coercion to
speak is barred by Heck it can be argued that Hill’s guilty
plea was the entire basis for the false-statement conviction,
as in Lockett v. Ericson, 656 F.3d 892, 896–97 (9th Cir. 2011),
that the plea was voluntary even if the lie may not have
been, that the civil suit does not challenge the plea, and that
anyway a conviction based on a guilty plea can rarely be col-
laterally attacked. United States v. Broce, 488 U.S. 563, 574
(1989); Connors v. Graves, 538 F.3d 373, 378 (5th Cir. 2008).
Although rarely is not never—see United States v. Broce, su-
pra, 488 U.S. at 574–76, citing Menna v. New York, 423 U.S. 61
(1975), and Blackledge v. Perry, 417 U.S. 21 (1974)—the excep-
tions authorized by those cases are not applicable to this
case.
But the Supreme Court in Heck was concerned not only
with limiting collateral attacks on criminal judgments, but
also with the unseemliness of conflicting judicial outcomes,
see 512 U.S. at 484–85, as when “a judgment in favor of the
plaintiff [in his civil suit] would necessarily imply the inva-
lidity of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated. But
if the district court determines that the plaintiff’s action,
even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the ac-
tion should be allowed to proceed.” Id. at 487 (emphasis in
original).
“Imply” is not synonymous with “invalidate.” A judg-
ment in favor of Hill’s claim in this civil suit that his convic-
tion of making a false statement was unconstitutional be-
cause it rested on police coercion would not invalidate the
10 No. 13-2709
conviction, or provide a ground for a suit for postconviction
relief (release from prison), but it would cast a shadow over
the conviction. It would allow Hill to argue that he had been
determined by a court to have been unjustly convicted and
sentenced but was forbidden to obtain relief on the basis of
that finding. It would thus enable him to indict the legal cul-
ture. This Heck forbids. As we put it in Dominguez v. Hendley,
545 F.3d 585, 588 (7th Cir. 2008), “a § 1983 claim for a due
process violation based on the denial of a fair criminal trial
may be brought only after the conviction is set aside. Other-
wise, that civil claim would imply the invalidity of the out-
standing conviction and would thus constitute a collateral
attack on the conviction through an impermissible route.” It
would not be a collateral attack in the literal sense, because a
judgment in favor of the plaintiff would not invalidate his
conviction. But the implication of invalidity would be
enough to establish the impropriety of the civil suit. Hill
thus can’t be permitted in his civil suit to prove that his first
statement was coerced, though he can complain about the
beating or threats or other brutalities that induced the three
statements to the extent the brutalities inflicted injuries
(whether physical or mental) for which tort damages can be
awarded.
All that matters, in short, is that Hill be forbidden to as-
sert on remand that the statement on which his conviction of
making a false statement to the government was predicated
was coerced, for if it was coerced then an element of his con-
viction would be negated. See id. at 589. (There are even
hints in his complaint, which Hill might try to amplify on
remand, that he made no false statement to the officers, co-
erced or otherwise—that their report of the interview is an
attempt, that worked, to frame him for a false-statement
No. 13-2709 11
crime that he did not commit. To allow him to present that
argument in this civil case would be an even clearer viola-
tion of Heck.)
We are not suggesting that there is a privilege to lie in re-
sponse to an improper interrogation. “[I]t cannot be thought
that as a general principle of our law a citizen has a privilege
to answer fraudulently a question that the Government
should not have asked. Our legal system provides methods
for challenging the Government’s right to ask questions—
lying is not one of them. A citizen may decline to answer the
question, or answer it honestly, but he cannot with impunity
knowingly and willfully answer with a falsehood." Bryson v.
United States, supra, 396 U.S. at 72; see also United States v.
Mandujano, 425 U.S. 564, 583–84 (1976); and the Knox, Kay,
and Kapp cases cited earlier. We add that Brogan v. United
States, 522 U.S. 398, 404–05 (1998), rejected a claim that the
Fifth Amendment barred a false-statement conviction under
18 U.S.C. § 1001 (the ground of Hill’s false-statement convic-
tion as well) merely because “it places a ‘cornered suspect’ in
the ‘cruel trilemma’ of admitting guilt, remaining silent, or
falsely denying guilt.”
But this is not a case in which the government “should
not have asked” the critical question (the question whether
Hill used a bagman). There would have been nothing wrong
with the government’s asking him that question. The wrong
lay in beating or terrorizing him into answering. “The use of
coerced confessions, whether true or false, is forbidden be-
cause the method used to extract them offends constitutional
principles.” Lego v. Twomey, 404 U.S. 477, 624 (1972); see also
Colorado v. Connelly, 479 U.S. 157, 163 (1986); Brown v. Missis-
12 No. 13-2709
sippi, 297 U.S. 278, 286 (1936) (“the rack and torture chamber
may not be substituted for the witness stand”).
Had the officers, foregoing brutality, merely said to Hill
“we want to ask you a question but of course you don’t have
to answer it,” and he had lied, he would be guilty of making
a false statement to the government. But as far as anyone can
know, had they said that, he would not have answered the
question at all—in other words, he would have said noth-
ing—or he might even have answered it truthfully; but in
either case he could not have been convicted of making a
false statement. Were he allowed to prove this in this civil
suit, he would be denying the validity of his conviction. And
that Heck forbids.
For completeness we note that while we have character-
ized Hill’s claims regarding the three statements as Fifth
Amendment claims, they would fare the same as Fourth
Amendment claims based on the defendants’ alleged use of
excessive force to extract an incriminating statement from
him (his denial that he used a bagman). In Evans v. Poskon,
603 F.3d 362, 364 (7th Cir. 2010), in which the defendant was
convicted of attempted murder and resisting arrest, we said
that
a fourth-amendment claim can coexist [that is, without vio-
lating the Heck principle] with a valid conviction. [Evans]
contends three things: (1) that he did not resist being taken
into custody; (2) that the police used excessive force to ef-
fect custody; and (3) that the police beat him severely even
after reducing him to custody. (Evans says that his skull
was fractured and his face mangled, leading to three sur-
geries and bone grafts. He also contends that his vision has
been permanently impaired. These are not normal conse-
quences of arrest.) Proposition (1) is incompatible with his
No. 13-2709 13
conviction; any proceedings based on this contention must
be stayed or dismissed under Wallace [v. Kato] or Heck. But
propositions (2) and (3) are entirely consistent with a con-
viction for resisting arrest. See Gilbert v. Cook, 512 F.3d 899
(7th Cir. 2008); VanGilder v. Baker, 435 F.3d 689, 692 (7th
Cir. 2006); Dyer v. Lee, 488 F.3d 876, 881 (11th Cir. 2007)
(collecting similar decisions in other circuits). These as-
pects of the suit can proceed.
Evans’s first contention, like Hill’s first, implicitly challenged
his conviction; his second and third contentions, like Hill’s
second and third contentions, did not—Evans’s because
there was no inconsistency between his second and third
contentions and the conviction, Hill’s because his convic-
tions rested comfortably on evidence unrelated to his second
and third contentions.
Wallace v. City of Chicago, supra, which emphasizes that
most Fourth Amendment claims survive Heck, thus coexists
with Evans v. Poskon, supra, which points out that a few do
not. We remarked that coexistence in Parish v. City of Elkhart,
614 F.3d 677, 681–82 (7th Cir. 2010); see also Walden v. City of
Chicago, 755 F. Supp. 2d 942, 954–55 (N.D. Ill. 2010).
In summary, the only one of Hill’s claims that is barred
by Heck v. Humphrey from being asserted in this civil case is
his claim that his false statement to the officers was coerced.
The district court’s judgment (which dismissed the entire
suit) is therefore affirmed in part and reversed and remand-
ed in part.
14   No.  13-­‐‑2709
EASTERBROOK,   Circuit   Judge,   concurring.   I   agree   with   my
colleagues’  conclusion  that  Hill  can  proceed  with  his  claims
under   the   Fourth   Amendment.   This   enables   him   to   recover
damages  for  any  improper  entry,  force,  or  threats  the  agents
employed.  It  also  makes  it  unnecessary  for  us  to  discuss  his
Fifth  Amendment  theories.  If  he  were  seeking  compensation
for   his   incarceration,   then   we   would   have   a   difference   be-­‐‑
tween  the  implications  of  the  Fourth  and  Fifth  Amendment
theories.   But   I   do   not   understand   Hill’s   complaint,   or   his
brief,   to   seek   compensation   for   anything   other   than   the
rough   treatment   that   he   says   he   received   at   the   agents’
hands.  A  claim  so  limited  is  independent  of  what  he  said  in
response   and   can   proceed   under   the   rationale   of   Wallace   v.
Kato,  549  U.S.  384  (2007),  without  any  problem  under  Heck  v.
Humphrey,  512  U.S.  477  (1994).
I  do  not  join  the  portions  of  the  majority  opinion  that  see
a   potential   Heck   problem   (as   applied   to   one   aspect   of   Hill’s
Fifth   Amendment   theory)   in   the   fact   that   Hill   lied   in   re-­‐‑
sponse   to   one   question,   then   pleaded   guilty   to   violating   18
U.S.C.  §1001.  My  colleagues  assert  that  a  person  who  lies  in
response  to  implied  threats  of  physical  force  lacks  the  mental
state  required  for  a  conviction  under  §1001.  Whether  that  is
so   is   not   an   issue   discussed   in   the   parties’   briefs,   and   I   am
not   at   all   sure   that   it   is   so.   A   person   who   tells   a   material
falsehood,  knowing  it  to  be  false  and  knowing  that  his  audi-­‐‑
ence   includes   agents   of   the   FBI   or   IRS,   violates   §1001;   no
other   mental   state   need   be   shown.   See   Brogan   v.   United
States,   522   U.S.   398   (1998)   (holding   that   false   exculpations
violate  §1001  and  rejecting  an  invitation  to  add  requirements
or  defenses  in  common-­‐‑law  fashion).
No.  13-­‐‑2709   15
The   law   has   ways   to   resist   wrongful   coercion   to   speak,
but   lying   is   not   among   them.   “[O]ur   cases   have   consistent-­‐‑
ly—indeed  without  exception—allowed  [criminal]  sanctions
for  false  statements  or  perjury;  they  have  done  so  even  in  in-­‐‑
stances  where  the  perjurer  complained  that  the  Government
exceeded   its   constitutional   powers   in   making   the   inquiry.
See,   e.g.,   United   States   v.   Knox,   396   U.S.   77   (1969);   Bryson   v.
United   States,   396   U.S.   64   (1969);   Dennis   v.   United   States,   384
U.S.  855  (1966);  Kay  v.  United  States,  303  U.S.  1  (1938);  United
States   v.   Kapp,   302   U.S.   214   (1937).”   United   States   v.   Man-­‐‑
dujano,   425   U.S.   564,   577   (1976).   My   colleagues   treat   these
cases  as  if  they  stand  for  no  more  than  the  proposition  that
one  cannot  defend  against  a  perjury  or  §1001  prosecution  by
contending   that   the   question   should   not   have   been   asked.
They  say  that,  all  right,  but  they  say  more  too.
For   example,   the   defendants   in   Dennis   contended   that
they   could   not   be   convicted   of   lying,   in   affidavits   denying
any   connection   to   the   Communist   Party,   because   a   statute
had  made  an  unconstitutional  threat:  any  labor  official  who
failed   to   execute   a   non-­‐‑Communist   affidavit   forfeited   for
himself  and  his  entire  union  all  benefits  of  federal  labor  law.
Defendants   did   not   contend   that   the   government   was   for-­‐‑
bidden  to  ask  about  their  political  affiliations;  they  contend-­‐‑
ed,   rather,   that   the   government   was   forbidden   to   coerce
them   to   answer,   and   that   because   the   coercion   violated   the
Constitution   they   were   entitled   to   give   false   answers.   The
Court  rejected  that  contention,  as  it  has  also  rejected  the  con-­‐‑
tention   that   a   witness   wrongly   threatened   with   imprison-­‐‑
ment   for   remaining   silent   (a   threat   that   violates   the   Self-­‐‑
Incrimination  Clause)  may  respond  to  the  threat  by  lying.
16   No.  13-­‐‑2709
In   Knox   the   Court   sustained   a   conviction   for   violating
§1001   by   filing   a   false   wagering-­‐‑tax   return,   even   though   it
had  earlier  held  that  the  statute  requiring  such  a  return  vio-­‐‑
lated   the   Self-­‐‑Incrimination   Clause.   That   statute   made   si-­‐‑
lence   a   crime.   People   who   had   gambling   income   were   co-­‐‑
erced   to   speak   on   pain   of   imprisonment—and   it   was   this
wrongful  coercion  that  Knox  tried  to  raise  as  a  defense  to  the
charge  of  lying.  But  the  Court  had  none  of  it  and  concluded
that  remaining  silent  and  facing  jail  for  that  silence,  or  telling
the  truth,  were  the  only  allowed  responses.
Maybe  there  is,  or  should  be,  a  difference  for  the  purpose
of  §1001  between  coercion  characterized  by  unconstitutional
threats   of   imprisonment   and   unconstitutional   threats   of
force.  But  my  colleagues  do  not  identify  a  case  in  which  the
Supreme   Court   has   drawn   that   line,   and   as   I’ve   mentioned
the  parties  have  not  briefed  the  subject.  At  page  7  the  majori-­‐‑
ty   cites   Okoro   v.   Callaghan,   324   F.3d   488,   490   (7th   Cir.   2003),
and  McCann  v.  Neilsen,  466  F.3d  619,  621  (7th  Cir.  2006),  for
the  proposition  that  a  person  who  lies  when  forced  to  speak
cannot   be   convicted   of   any   crime   (which   if   so   would   make
Hill’s  contentions  inconsistent  with  his  conviction’s  validity),
but  neither  decision  deals  with  a  person  wrongfully  induced
to   speak;   the   majority   has   added   in   brackets   vital   language
that   does   not   appear   in   Okoro   or   McCann.   The   issue   I   have
flagged  is  open  to  full  consideration  in  a  case  that  presents  it.
My   colleagues   also   suggest   (slip   op.   8)   that   Hill   would
have  had  a  duress  defense.  Dixon  v.  United  States,  548  U.S.  1,
6–7   (2006),   the   sole   cited   authority,   says   no   such   thing;   it
acknowledges  the  existence  of  duress  as  a  doctrine  but  does
not  consider  when  it  blocks  a  conviction.  United  States  v.  Bai-­‐‑
ley,   444   U.S.   394   (1980),   which   my   colleagues   do   not   cite,
No.  13-­‐‑2709   17
does  address  that  question—for  a  “necessity”  defense,  to  be
sure,  but  duress  and  necessity  are  fraternal  doctrines.  Bailey
holds  that  an  accused  cannot  assert  the  defense  if  he  had  “a
chance  both  to  refuse  to  do  the  criminal  act  and  to  avoid  the
threatened  harm.”  444  U.S.  at  410–11.  Hill  does  not  contend
that  he  was  mistreated  to  get  him  to  lie;  he  maintains  that  he
was   mistreated   to   get   him   to   speak.   He   could   have   avoided
the  threatened  harm  by  telling  the  truth,  so  under  Bailey  he
could  not  have  prevailed  on  a  defense  of  duress  or  necessity.
(My  colleagues’  suggestion  that  Hill  might  have  thought  that
he   needed   to   lie   is   inconsistent   with   the   fact   that   he   fessed
up   immediately   after   lying;   this   scotches   any   contention—
which  Hill  himself  does  not  advance—that  the  interrogators
compelled  him  to  lie.)
Hill  does  not  contend  that  he  was  under  duress.  The  de-­‐‑
fendants  likewise  do  not  maintain  that  Hill’s  theories  imply
(or  even  could  imply)  that  the  §1001  conviction  is  invalid  be-­‐‑
cause   he   lacked   the   mens   rea   needed   for   conviction   or   was
subject   to   duress.   Instead   they   maintain   that   Heck   bars   the
whole  suit  because  an  illegal  entry  (a  violation  of  the  Fourth
Amendment)   would   have   supported   a   motion   to   suppress
evidence.   The   panel   unanimously   rejects   that   contention,
which  is  inconsistent  with  Wallace.  We  should  have  stopped
with   that   conclusion.   There   are   good   reasons   why   courts
should   confine   themselves   to   issues   raised   and   briefed   by
the  parties;  this  case  illustrates  them.  The  majority’s  unguid-­‐‑
ed   journey   through   theories   of   criminal   responsibility   may
make   it   unduly   hard   to   enforce   §1001,   which   isn’t   remotely
what   the   Supreme   Court   set   out   to   accomplish   in   Heck.   I
hope   that   the   court   will   have   an   open   mind   when,   in   some
future  case,  these  subjects  matter  and  the  litigants  join  issue.