United States v. Price, Kenneth J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2569
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH JAMES PRICE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 771—James F. Holderman, Judge.
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ARGUED APRIL 17, 2003—DECIDED MAY 16, 2003
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Before BAUER, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. You just know there’s going to
be a whole lot of trouble when a man, wearing a ski
mask over his face, enters a bank on a hot August after-
noon. And there was plenty of trouble back in August
2001 when a man behind a ski mask pointed a gun at
Siamphay Mounivong, a teller at the Elgin State Bank in
Elgin, Illinois, and said, “I need money.” Mounivong opened
her teller drawer and complied with what seemed pretty
clearly to be an order. The robber was not satisfied and
said, “I need more money,” a request with which Mounivong
also wisely complied, giving the robber a total of $8,300,
$500 of which was bait money. The robber fled out the
front door of the bank. After locking the door so the robber
2 No. 02-2569
could not return, Mounivong went to the branch manager
to report the robbery. The manager, in the presence of
another employee, was already on the phone with the
police. Mounivong then described the mask, the gun, and
the clothes the robber was wearing. That information, plus
information that the robber was Hispanic, was passed on
to the police, where it was dispatched to two officers in the
area, Richard Ciganek and Jeff Wiltberger. In another
dispatch, Ciganek heard additional information that the
robber was a black man.
Within 2 minutes and 1,000 feet of the bank, the officers
saw Kenneth Price, who is African-American, walking
“at a brisk pace.” He was wearing blue jeans and a long-
sleeve blue shirt. He was carrying a “bulging sack,” which
upon later inspection turned out to be a blue ski mask
stuffed with money—$8,300 to be exact, including the
bait money. The officers stopped their squad car. As the
car was pulling to a stop, Officer Ciganek got out and
saw that Price had a gun tucked into his waistband. The
officer could see “[t]he gun handle, it’s on an angle. You
could see the handle come up and just kind of sticking
down.” He said, “You could see the top part of the handle
and maybe the butt end, back end.” Price was ordered to
the ground, where the gun was confiscated and he was
handcuffed and arrested.
A few minutes later, other officers, who had gone to the
bank, took Mounivong and another bank employee to the
site where Price was in custody. On the way, the officers
told Mounivong that they had the guy who did the robbery
and they wanted her to see him. Given that hint, it is
not surprising that Mounivong said “that’s the shirt,”
“that’s the color . . . for sure,” and “that’s the blue pants”
that he wore. Neither bank employee was asked to iden-
tify Price’s face.
It is probably also not surprising that Price was con-
victed of armed robbery, in violation of 18 U.S.C. § 2113(a)
No. 02-2569 3
and (d), of the use of a firearm in a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A), and, because he was
a felon, of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1).
He appeals, contending that the police did not have
a reasonable suspicion to stop him on the street. In other
words, the original stop was not a proper stop, pursuant
to Terry v. Ohio, 392 U.S. 1 (1968). He also contends
that the “show-up” at which Mounivong identified the
clothing violated his Fifth Amendment due process rights.
Finally, in what can only be described as a brash move, he
contends that the felon in possession statute—18 U.S.C.
§ 922(g)(1)—violates the Second Amendment’s protection
of an individual’s right to keep and bear arms.
None of these issues were raised in the trial court. For
that reason, the government makes an impassioned plea
that we need to find waiver—and not forfeiture—of these
issues and, not only that, that we need to take this oppor-
tunity to draw some bright line rules regarding waiver so
as to prevent, as was stated in a flight of fancy at argu-
ment, “havoc in the district courts.” We’re pretty sure that
whatever havoc might exist in the district courts is not
a result of our waiver-forfeiture decisions. In fact, on
that point, we reaffirm our discussion in United States
v. Clarke, 227 F.3d 874 (7th Cir. 2000).
In this case, it does not matter whether we find waiver,
or forfeiture, or if, in fact, we were to find the issues
properly preserved, which, of course, we do not. No matter
how you turn it, this remains a valid conviction.
As to the Terry stop, the police “do not have to have
any degree of reasonable suspicion in order to accost a
person and say they want to talk to him.” United States
v. DeBerry, 76 F.3d 884, 885-86 (7th Cir. 1996). When,
however, an officer restrains a person’s “freedom to walk
away,” that person has been subjected to a Terry stop. In
4 No. 02-2569
a situation, like the one here, where officers see a gun
upon approaching a person, they certainly have “reason-
able suspicion” to restrain that person without violating
Terry.
The “show-up,” if it can be called that, at which
Mounivong identified the clothing as those which the
robber wore, is not, in itself, the source of the alleged
error, nor could it be because the government did not on
direct examination elicit testimony regarding the out-of-
court identification of the clothing. It was the defense
which introduced the out-of-court identification in an
attempt to discredit Mounivong’s testimony. The argument
is that the out-of-court identification tainted her in-court
identification of the clothing.
Assuming, for the sake of discussion, that this issue
was forfeited, and not waived, we consider the issue for
plain error. Error under this standard is reversible only
if it is “plain,” meaning clear under current law, and if
it affects substantial rights, in that it must be prejudicial
and must have affected the outcome of the district court
proceedings. United States v. Olano, 507 U.S. 725, 734
(1993); United States v. Williams, 272 F.3d 845, 859 (7th
Cir. 2001). Despite what the government acknowledges
was a police misstep in telling Mounivong that they had
caught the robber, given the totality of the circum-
stances Price cannot establish that the identification is
unreliable under Neil v. Biggers, 409 U.S. 188 (1972). But
above all, he cannot establish that the error affected
his substantial rights—that the error affected the out-
come of the trial.
It is almost impossible to imagine that without the
identification of the clothing Price would have been acquit-
ted. The jury would have learned that within 2 minutes
and less than 1,000 feet from the bank while carrying
a gun, and with the exact amount of money stolen (in-
No. 02-2569 5
cluding the bait money) stuffed into a ski mask, Price
was arrested by the police. Price says yes, but there
was some testimony from a passerby that as he left the
bank the robber was dropping money. Price apparently
contends that he could have simply picked up the money
as he innocently walked along the street and then have
had the misfortune to be caught with it; never mind
that there was no testimony either from Price himself
or from anyone regarding that possibility. Price’s explana-
tion of the lack of testimony is that he was precluded
from testifying that he found the money because of the
identification of his clothing. We can find no way to credit
that explanation.
Finally, Price argues that the felon-in-possession statute
is unconstitutional. A basic problem with this argument
is that we have previously found that statute to be consti-
tutional. United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974)
(dealing with a predecessor statute); Gillespie v. City of
Indianapolis, 185 F.3d 693 (7th Cir. 1999) (dealing with
922(g)(9) prohibiting those convicted of misdemeanor
crimes of domestic violence from possessing firearms);
and United States v. Hemmings, 258 F.3d 587 (7th Cir.
2001) (upholding 922(g)(1) and (9) in the face of a Second
Amendment attack).
But, Price argues, a recent decision of the Court of
Appeals for the Fifth Circuit—United States v. Emerson,
270 F.3d 203 (2001)—and a recent letter written by At-
torney General John Ashcroft to the National Rifle As-
sociation provide us with reason to reexamine our position.
We don’t think so.
We, of course, would not be obliged to follow Emerson,
even were it to lead to the conclusion Price urges. It is
true that Emerson rejects what are known as the “collec-
tive rights” and “sophisticated collective rights” models
6 No. 02-2569
for interpreting the Second Amendment. In short, it
adopts the individual rights model, which says that the
amendment protects “individuals, including those not
then actually a member of any militia or engaged in ac-
tive military service or training, to privately possess and
bear their own firearms, such as the pistol involved
here . . . .” At 260. In contrast, in our decision in Gillespie,
we said that the rights under the Second Amendment
inure “not to the individual but to the people collectively,
its reach extending so far as is necessary to protect
their common interest in protection by a militia.” 185 at
710. But even were we inclined to, there is no need for us
to wade into that Second Amendment quagmire because,
although it espouses an individual rights approach to
the Second Amendment, the Emerson court agrees with
our conclusion that rights under the amendment can be
restricted. Specifically, the court found that 18 U.S.C.
§ 922(g)(8) did not infringe Emerson’s rights: “[I]t is clear
that felons, infants and those of unsound mind may be
prohibited from possessing firearms.” At 261.
Like the Court of Appeals for the Fifth Circuit, the
Attorney General subscribes to an individual rights inter-
pretation of the Second Amendment. In his letter to the
executive director of the NRA, he says “[L]et me state
unequivocally my view that the text and the original intent
of the Second Amendment clearly protect the right of
individuals to keep and bear firearms.” He says “clearly,”
though his view, as the need for such a lengthy discus-
sion in Emerson reveals, is also pretty clearly not self-
evident. But even given his interpretation, Mr. Ashcroft
also acknowledges in a footnote, as it would be hard
responsibly to deny, that “[o]f course, the individual rights
view of the Second Amendment dos [sic] not prohibit
Congress from enacting laws restricting firearms owner-
ship for compelling state interests, such as prohibiting
firearms ownership by convicted felons . . . .” At least for
No. 02-2569 7
the moment, § 922(g) is safe with us and, in fact, is safe
with the Attorney General and the Court of Appeals for
the Fifth Circuit.
The judgment of conviction is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-16-03