United States v. Gillaum, Durriel E.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4015
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DURRIEL E. GILLAUM,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02 CR 21—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 17, 2003—DECIDED JANUARY 20, 2004
____________
Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. A jury found Durriel Gillaum
guilty of possession of a firearm by a felon and sentenced
him to a prison term of 188 months. On appeal, Gillaum
challenges the execution of the search warrant that uncov-
ered the prohibited firearm, his interrogation, the failure of
the government promptly to disclose a police report to
defense counsel, the calculation of his prison sentence, and
the constitutionality of the federal felon-in-possession of a
firearm statute. We affirm.
2 No. 02-4015
I. Background
On December 4, 2001, at approximately 7:00 a.m.,
members of the Dane County (Wisconsin) Narcotics and
Gangs Task Force, led by Detective Steven Greiber and
Sergeant Gary Anderson, executed a search warrant for the
apartment of Durriel Gillaum. The purpose of the search
warrant was to search for drugs (specifically, but not ex-
clusively, cocaine base), drug paraphernalia, and other
items likely to constitute evidence of drug trafficking. In the
four months prior to December 2001, on four occasions
undercover officers had purchased cocaine from persons in
the apartment.
Prior to entering Gillaum’s apartment, Anderson pounded
on the door to the apartment and shouted, “Police, search
warrant.” Anderson then began counting to himself and
waving his arm to let the entry team know how much time
had elapsed. After he waited five seconds, Anderson heard
the sound of footsteps coming from inside the apartment.
Anderson testified that the footsteps did not sound as if
they were getting closer to the door and he could not
discern whether they were moving from left to right or right
to left.
After listening to the footsteps for three to five seconds,
Anderson ordered a forcible entry into the apartment.
Anderson later testified that he did not believe three to five
seconds was sufficient time for the footsteps to reach the
entry door. In his report and recommendation denying
Gillaum’s motion to suppress the discovery of the handgun,
the magistrate judge found that approximately eight to ten
seconds elapsed between Anderson’s knock on the entry
door and the task force’s forcible entry into the apartment.
The footsteps Anderson heard appear to have been made
by 13-year-old Tryphenia Sykes. Tryphenia is the daughter
No. 02-4015 3
1
of Gillaum’s wife, Mary Sykes. Tryphenia testified that she
was eating breakfast and watching television when she
heard a knock on the door and someone say something. She
started towards the door but did not reach the door before
the task force rushed in.
Inside the apartment, the task force spread throughout the
apartment. Members of the task force found Gillaum and
Mary in their bed. Gillaum was handcuffed, taken to the
living room and informed of the search warrant. In the
living room, members of the task force learned that Gillaum
was diabetic. Gillaum was asked if he was experiencing any
medical problems and was told if he was having problems
to let someone know. Gillaum was also asked if he needed
any food. Gillaum indicated that he was all right and did
not need any food. Detective Greiber then led Gillaum into
the bathroom.
Once inside the bathroom, Greiber removed Gillaum’s
handcuffs and read Gillaum the Miranda warnings. Greiber
asked Gillaum if he was familiar with the warnings.
Gillaum told Greiber that he was familiar with the warnings
and that he was willing to talk to Greiber.
Greiber then questioned Gillaum for approximately half
an hour concerning drug activities. Part of this questioning
focused on a drug dealer named Kevin Harper. Gillaum
refused to provide Greiber with any information concerning
Harper. Greiber testified that Gillaum was coherent and did
not appear to be under the influence of drugs or alcohol.
Greiber also testified that Gillaum did not express a desire
to cease the interview, nor did Gillaum at any time assert
1
Gillaum is not the biological father of Mary Sykes’ children.
Apparently, however, her children consider Gillaum their father
and we treat them as his children in this opinion.
4 No. 02-4015
his right to remain silent. Gillaum testified that he told
Greiber that he (Gillaum) ended the interview by telling
Greiber he no longer wanted to talk. After the interview
Gillaum was again handcuffed and led back to the living
room.
Meanwhile, members of the task force discovered in
Gillaum’s bedroom closet a Bryco .38 handgun and two
magazines of ammunition. Approximately 15 minutes after
the first interview in the bathroom, Greiber took Gillaum to
the bedroom where he allowed Gillaum to dress and
questioned him concerning the handgun. Greiber did not
provide Gillaum with a second round of Miranda warnings.
Greiber testified that Gillaum told him that the gun was not
his but that he knew the gun was in his bedroom and that
his fingerprints would likely be found on it, because he had
handled the gun and worked the ammunition through it to
make sure it worked and that it was safe.
On February 21, 2002, a federal grand jury in the Western
District of Wisconsin returned a one-count indictment
charging Gillaum with possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). On April 15, 2002, Gillaum filed
a motion to suppress the handgun asserting, inter alia, that
the failure of the task force to obey the knock and announce
requirements made the search unconstitutional. Gillaum
also filed a motion to suppress his statement to Greiber
in the second interview, asserting that the statement was
obtained in violation of Gillaum’s right against self-in-
crimination. Finally, Gillaum filed a motion to dismiss the
indictment, contending that 18 U.S.C. § 922(g)(1) is uncon-
stitutional because it exceeds Congress’s power under the
Commerce Clause of the United States Constitution.
On May 17, 2002, after an evidentiary hearing on
Gillaum’s suppression motions, a magistrate judge issued
a report and recommendation concluding that Gillaum’s
No. 02-4015 5
motions should be denied. On May 30, 2002, the district
court adopted the report and recommendation and denied
all of Gillaum’s motions. Gillaum’s case then proceeded to
trial.
At trial, Gillaum and two of his wife’s children testified to
the effect that the gun had been brought into his apartment
by a man named Jori Stinson. According to Gillaum, Stinson
had sold the gun to Rashan Ross, a friend of Gillaum’s who,
at the time, was staying with Gillaum and who had access
to all areas of the apartment. Gillaum testified that he told
Ross that he could not keep the gun in the apartment.
Gillaum also denied that he told Greiber that he had seen
the gun or worked ammunition through it. Sharon Sykes,
one of Gillaum’s daughters, testified that she had seen
Stinson in the apartment and had overheard Gillaum tell
2
Ross, “[y]ou can’t keep that here.” Shawn Sykes, Gillaum’s
son, testified that he was present in Gillaum’s apartment
when Stinson sold Ross the gun and was later present when
Gillaum told Ross that Ross could not keep the gun in the
apartment.
After the jury entered deliberations, problems arose.
The jury requested a transcript of certain portions of the
testimony of Gillaum and Greiber. Afer receiving a rough
transcript of the testimony, the jury sent a note to the court
indicating that it could not resolve discrepancies between
their memories of Gillaum’s testimony and the transcript of
his testimony. The court found that there were errors in the
transcript. An important error was in the transcribed
version of Gillaum’s testimony. The rough transcript had
Gillaum admitting to handling the gun. The parties agreed
that Gillaum made no such admission. The district court
2
Sharon testified that she never actually saw the gun.
6 No. 02-4015
found that the errors were likely to confuse the jury on cri-
tical issues and declared a mistrial.
A second trial was held a month later and, insofar as this
appeal is concerned, it was a reprise of the first trial.
Gillaum and his children offered the same testimony as at
the first trial. The trial lasted only a day and the jury re-
turned a guilty verdict that same day.
During the preparation of the presentence report, the
government for the first time put forward a copy of a
Bureau of Alcohol, Tobacco, and Firearms ( “BATF”) trace
report concerning the handgun found in Gillaum’s apart-
ment. The report indicated that Brian Hesterly was the
original owner of the gun, having purchased it from a
sporting goods store. According to the report, a BATF agent
interviewed Hesterly. Hesterly told the agent that his home
had been burglarized and the gun was stolen. Included with
the BATF report was a copy of a police report of the
Fitchburg, Wisconsin police department’s investigation of
the burglary. The Fitchburg police report noted an interview
with Hesterly. In that interview, Hesterly told a Fitchburg
police officer that he believed Stinson was the perpetrator of
the burglary.
On October 8, 2002, Gillaum filed a motion for a new trial
pursuant to Rule 33 of the Federal Rules of Criminal
Procedure. Gillaum argued that the BATF report constituted
exculpatory evidence the government failed to turn over in
violation of its obligations under Brady v. Maryland, 373 U.S.
83, 87 (1963). On February 19, 2003, the district court denied
Gillaum’s motion.
While Gillaum’s motion was pending, the district court
entered a judgment of conviction. Gillaum was sentenced to
188 months in prison. Gillaum’s prison sentence is to be
followed by five years of supervised release.
No. 02-4015 7
Gillaum is eligible for such a substantial sentence because
he has previously been convicted of aggravated battery and
attempted robbery in Cook County, Illinois and armed rob-
bery and possession with intent to deliver cocaine in Dane
County, Wisconsin. A defendant who is found guilty of
possession of a firearm in violation of 18 U.S.C. § 922(g) and
has at least three prior convictions that are considered either
a “violent felony” or a “serious drug offense” is subject to a
mandatory minimum sentence of fifteen years and a
maximum sentence of life. 18 U.S.C. § 924(e). If a defendant
does not have at least three such prior convictions, he is
subject to a statutory maximum of ten years’ imprisonment.
18 U.S.C. § 924(a)(2).
II. Discussion
Gillaum raises several issues on appeal. First, he argues
that the forcible entry by the task force into his apartment
was unreasonable and violated his right under the Fourth
Amendment to be free from unreasonable searches. Gillaum
argues that the remedy for this violation should be the
suppression of evidence uncovered in the search, namely,
the handgun and ammunition. Second, Gillaum argues that
his second interview with Greiber (in the interview in
Gillaum’s bedroom) was not voluntary and violated his
right against self-incrimination. Gillaum argues that the
remedy for this violation is the suppression of his statement
to Greiber that he handled the handgun. Third, Gillaum
argues that he is entitled to a new trial because the govern-
ment failed to promptly provide him with a copy of the
BATF report. Fourth, Gillaum challenges the length of his
sentence. He argues that, because his Illinois convictions
were discharged and certain of his civil rights had been
restored, these convictions cannot be counted toward the
three necessary for him to be subject to the sentence en-
8 No. 02-4015
hancement of 18 U.S.C. § 924(e)(1). Finally, Gillaum argues
that 18 U.S.C. § 922(g)(1) represents an unconstitutional
exercise of Congress’s power under the Commerce Clause
of the United State Constitution.
A. The Forcible Entry
Gillaum first argues that the task force failed to wait a
reasonable period of time after announcing its presence and
forcibly entering his apartment. According to Gillaum, the
sound of footsteps for a limited period of time (three to five
seconds) was insufficient to justify a forcible entry. The
district court, adopting the magistrate judge’s report and
recommendation, found that the sound of footsteps moving
laterally obviated the need to wait a reasonable period of
time after a knock and announce.
We review the district court’s factual findings for clear
error in deciding a motion to suppress. United States v. Jones,
208 F.3d 603, 606 (7th Cir. 2000). In doing so, “we must keep
in mind that ‘our inquiry is factually based and requires that
we give particular deference to the district court that had
the opportunity to hear the testimony and observe the
demeanor of the witness.’ ” Id. (quoting United States v.
Williams, 945 F.2d 192, 195 (7th Cir. 1991)). This deference is
equally applicable where credibility determinations have
been made by a magistrate judge and the report and
recommendation of the magistrate judge have been adopted
by the district court. Legal determinations (including
whether facts constitute exigent circumstances) of the
district court justifying its decision to deny a motion to
suppress are subject to de novo review. Id. (citing United
State v. Adames, 56 F.3d 737, 747 (7th Cir. 1995)); United
States v. Howard, 961 F.2d 1265, 1267 (7th Cir. 1992).
No. 02-4015 9
“[T]he method of [a law enforcement] officer’s entry into a
dwelling [is] among the factors to be considered in assessing
the reasonableness of a search or seizure.” Wilson v. Arkan-
sas, 514 U.S. 927, 934 (1995); United States v. Espinoza, 256
F.3d 718, 723 (7th Cir. 2001), cert. denied, 534 U.S. 1105
(2002). Absent exigent circumstances, law enforcement
officers must knock on the entry door of a dwelling and
“announce their identity and intention before attempting
forcible entry.” Id. (citing Wilson, 515 U.S. at 934). This court
has recognized that “a necessary corollary of the knock and
announce requirement is that officers must wait a reason-
able amount of time after announcing their intention to
serve a search warrant before attempting a forcible entry.”
Id. (citing Jones, 208 F.3d at 609-10).
In this case, however, the appropriate inquiry is not
whether Anderson waited a reasonable time before ordering
the forcible entry into the apartment. Rather, the question is
whether the sound of footsteps moving laterally in relation
to the entry door was sufficient to excuse the task force from
3
waiting a reasonable period of time. In other words, did
exigent circumstances exist that justified disregarding the
knock and announce requirement?
This court has held that “[e]xigent circumstances exist . . .
when a suspect’s awareness of the search would increase the
danger to police officers or others, or when an officer must
3
This case is not, therefore, governed by the recent decision of
the Supreme Court in United States v. Banks, 540 U.S. ___ (2003).
In that case, the Supreme Court held that 15-20 seconds was a
sufficient period of time for the police to wait when executing a
knock-and-announce warrant without hearing any noise or move-
ment before forcibly entering the apartment of a suspected drug
dealer. In this case there was an intervening act—the sound of
footsteps inside the apartment not moving towards the door.
10 No. 02-4015
act quickly to prevent the destruction of evidence.” Howard,
961 F.2d at 1267 (quoting United States v. Singer, 943 F.2d
758, 762 (7th Cir. 1991)). Whether such exigent circum-
stances exist “must be viewed ‘from the totality of circum-
stances known to the officers at the time [of the forcible
entry].’ ” Id. (quoting United States v. Lindsey, 877 F.2d 777,
781 (9th Cir. 1989)).
On the basis of the record before us, we cannot conclude
that the factual findings of the district court were in error.
The magistrate judge found Anderson to be a credible wit-
ness and concluded that Anderson honestly believed that he
was hearing lateral movement. Moreover, we conclude that
exigent circumstances existed that justified Anderson’s
order. Taking into consideration only those facts known
to Anderson at the time he ordered the forcible entry,
the sound of footsteps coming from inside the apartment
and not moving closer to the entry door was sufficient for
Anderson to order the forcible entry and disregard the
knock and announce requirement.
The search warrant was for drugs, specifically cocaine. Of
course, drugs, particularly cocaine, are the quintessential
form of evidence that may be easily destroyed. Anderson
testified that he was familiar with the layout of the apart-
ment and knew that the bathroom, the likely scene of any
attempt at destroying evidence, was located to one side of
the entry door. Given this, the movement in the apartment,
from one side of the apartment to the other, could have
indicated an attempt to destroy evidence. The fact that
Anderson’s fears were not realized, that the footsteps were
those of a 13-year-old girl, is immaterial. Anderson could
not have known who was moving in the apartment. Given
the layout of the apartment and the evidence that was the
subject of the warrant, Anderson was justified in believing
No. 02-4015 11
that someone might be attempting to destroy evidence. He
was, therefore, justified in ordering the forcible entry into
the apartment.
Moreover, even if we determined that the forcible entry of
the task force into Gillaum’s apartment violated Gillaum’s
rights under the Fourth Amendment, he would not be
entitled to suppression of the handgun. This court has held
that suppression is not the proper remedy for a violation of
the knock and announce rule. See United States v. Langford,
314 F.3d 892, 894 (7th Cir. 2002), cert. denied, ___ U.S. ___ ,
2003 WL 21696159 (2003).
B. Gillaum’s Interrogation
Gillaum next argues that his statements to Greiber, par-
ticularly his statements that he knew the handgun was
in the apartment and that he had handled the handgun,
should be suppressed as they were obtained in violation of
his Fourth and Fifth Amendment rights. Because we have
concluded that Gillaum’s Fourth Amendment rights were
not violated, we consider only the Fifth Amendment chal-
lenge. Whether a confession or statement to the police is
voluntary is a matter of law that this court reviews de novo.
United States v. Jordan, 223 F.3d 676, 683 (7th Cir. 2000)
(quoting United States v. D.F., 115 F.3d 413, 419 (7th Cir.
1997)). However, this court reviews “the determination of
historical facts of the case . . . for clear error.” Id.
Gillaum argues that Greiber violated his Fifth
Amendment right to remain silent. Gillaum maintains that
he invoked his right to remain silent by allegedly telling
Greiber after the interrogation in the bathroom that he did
not want to talk to Greiber anymore. Because Gillaum told
Greiber he no longer wished to talk, “it was incumbent
upon the police to scrupulously honor [his] assertion of his
right to remain silent.”
12 No. 02-4015
Gillaum principally relies on the United States Supreme
Court’s decision in Michigan v. Mosley, 423 U.S. 96 (1975). In
Mosley, the Court held that the admissibility of statements
obtained after a defendant invokes his right to remain silent
is dependent on whether the defendant’s right was “scru-
pulously honored.” 423 U.S. at 103. The Court set forth
several non-exclusive factors to determine whether interro-
gation was properly resumed. Id. These factors include “an
inquiry into the amount of time that lapsed between
interrogations; the scope of the second interrogation;
whether new Miranda warnings were given; and the degree
to which police officers pursued further interrogation once
the suspect had invoked his right to silence.” United States
v. Schwensow, 151 F.3d 650, 658 (7th Cir. 1998) (citing Mosley,
423 U.S. at 104-05).
Gillaum’s argument that his right to remain silent was not
“scrupulously honored” has a fatal defect: he never invoked
his right to remain silent. The magistrate judge heard the
testimony of Greiber and Gillaum. Greiber testified that
Gillaum did not invoke his right to remain silent. Gillaum
testified that he did invoke his right to remain silent. The
magistrate judge, with the advantage of having the wit-
nesses before him, made an explicit credibility determina-
tion finding that Gillaum never invoked his right to remain
silent. The district court adopted the report and recommen-
dation of the magistrate judge. That finding is supported by
the record and is not clearly erroneous. See United States v.
Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (quoting United
States v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999)) (“Under
the clearly erroneous standard, ‘if two permissible views
exist, the fact-finder’s choice between them cannot be clearly
erroneous.’ ”); id. at 872 (defendant made no showing that
a district court’s credibility determination was “exceedingly
improbable; she merely presents a contradictory statement
of facts. That is not enough.”).
No. 02-4015 13
Gillaum also argues that his confession was not voluntary
because of the coercive atmosphere of the interview.
Gillaum argues that the forcible entry of the task force into
his bedroom where he was sleeping, early in the morning,
the first interrogation in a small bathroom, his diabetic
condition and low blood pressure, together with statements
by Greiber that Gillaum would be better off if he provided
information concerning another drug dealer and that
his wife would be taken into custody if Gillaum did not
cooperate, contributed to an atmosphere that made his
statements to Greiber involuntary under the totality of
circumstances.
This court has held that “[a] confession is voluntary if, in
the totality of circumstances, it is the ‘product of a rational
intellect and free will and not the result of physical abuse,
psychological intimidation, or deceptive interrogation tac-
tics that have overcome the defendant’s free will.’ ” Huerta,
239 F.3d at 871 (quoting United States v. Dillon, 150 F.3d 754,
757 (7th Cir. 1998)). “Coercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’. .
. .” Id. (quoting Colorado v. Connelly, 479 U.S. 157, 167
(1986)). Factors relevant to a determination that police
conduct is coercive include “the defendant’s age, education,
intelligence level, and mental state; the length of the defen-
dant’s detention; the nature of the interrogations; the
inclusion of advice about constitutional rights; and the use
of physical punishment, including deprivation of food or
sleep.” Id.
Considering these factors, we conclude that Gillaum’s
statements to the police were voluntary. Gillaum was thirty-
seven at the time of his arrest and from past arrests was
personally familiar with the criminal justice system. He was
read the Miranda warnings and was asked whether he
understood the warnings. Gillaum told Greiber he under-
14 No. 02-4015
stood the warnings, and told Greiber that he had been
arrested on five or six previous occasions and had the
warnings read to him. Prior to his interrogation, members
of the task force learned that Gillaum was diabetic and
asked Gillaum if he was feeling all right and if he needed
insulin or something to eat. Gillaum was also told to tell
someone if he developed problems. Gillaum indicated that
he did not need his medication.
Additionally, both interrogations together lasted less than
45 minutes and Gillaum was not handcuffed while being
questioned. Greiber testified that Gillaum was coherent and
did not appear to be under the influence of drugs or alcohol.
Greiber also testified (and Gillaum does not dispute) that he
did not use physical force or yell at Gillaum.
The parties differ as to whether Greiber threatened
Gillaum. Gillaum, as indicated above, claims that Greiber
threatened to take Mary into custody and promised to en-
sure Gillaum was treated leniently if he provided informa-
tion concerning a drug dealer. Greiber testified that he never
threatened Gillaum. Greiber testified that although he did
ask if Gillaum was willing to cooperate and talk about the
other drug dealer, Gillaum was not willing to provide any
information and Greiber did not suggest that Gillaum
would be treated more favorably if he cooperated.
Once again, the magistrate judge who received this tes-
timony chose to accept Greiber’s version of events and we
cannot say that this decision was clearly erroneous. Under
the totality of circumstances, Gillaum’s statements to
Greiber were voluntary.
C. The Disclosure of the BATF Report
Gillaum next argues that the government failure to dis-
close the BATF report entitles him to a new trial because the
No. 02-4015 15
BATF report constitutes newly discovered evidence or
because the failure of the government to disclose the report
constitutes a Brady violation. Gillaum argues that the report
corroborates his testimony and the testimony of two of his
children that Stinson brought the gun into the apartment
and sold it to Ross. The district court held that Gillaum had
not shown that the report was material or that the evidence
would have been favorable to him and thus denied
Gillaum’s motion for a new trial.
The decision to grant a new trial is committed “to the
sound discretion of the trial judge.” United States v. Woolfolk,
197 F.3d 900, 904 (7th Cir. 1999). This court approaches
motions for a new trial “with great caution and [is] wary of
second guessing the determinations of both judge and jury.”
Id. (quoting United States v. DePriest, 6 F.3d 1201, 1216 (7th
Cir. 1993)). To be entitled to a new trial on the basis of
newly discovered evidence, a defendant must show (1) the
defendant became aware of the evidence only after trial; (2)
the defendant could not, by exercising due diligence, have
discovered the evidence sooner; (3) the evidence is material;
and (4) in the event of a new trial, the evidence would
probably lead to an acquittal. United States v. McClurge, 311
F.3d 866, 874 (7th Cir. 2002), cert. denied, ___ U.S. ___ , 123 S.
Ct. 2101 (2003). Where the defendant alleges a Brady
violation, the defendant is entitled to a new trial when the
defendant can establish “(1) that the prosecution suppressed
evidence; (2) that the evidence was favorable to the defense;
and (3) that the evidence was material to an issue at trial.”
United States v. Silva, 71 F.3d 667, 670 (7th Cir. 1995).
We address here only the materiality of the BATF re-
port—the probability that the presentation of the report
would have led to a different outcome in the trial. As this
court has held, “[e]vidence is material [under Brady] only if
16 No. 02-4015
there exists a ‘reasonable probability’ that its disclosure to
the defense would have changed the result of the trial.”
United States v. Irorere, 228 F.3d 816, 829 (7th Cir. 2000). The
question is “whether in [the absence of the suppressed
evidence, the defendant] received a fair trial, understood as
a trial resulting in a verdict worthy of confidence. A ‘rea-
sonable probability’ of a different result is accordingly
shown when the government’s evidentiary suppression
‘undermines confidence in the outcome of the trial.’ ” Kyles
v. Whitley, 514 U.S. 419, 434 (1985) (quoting United States v.
Bagley, 473 U.S. 667, 678 (1985)). “[T]he effect that a parti-
cular piece of evidence is likely to have had on the outcome
of a trial must be determined in light of the full context
of the weight and credibility of all evidence actually pre-
sented at trial.” Silva, 71 F.3d at 670.
In this case, the question for the jury was whether
Gillaum, a convicted felon, possessed the handgun. The
critical evidence at trial was the testimony of Gillaum and
Greiber. Greiber testified that Gillaum told him that he
knew the gun was in the bedroom, he had handled the gun,
and had cycled ammunition through it. Gillaum testified
that he had not made these statements to Greiber. Gillaum
also testified that the gun belonged to Ross and that he had
ordered Ross to get the gun out of his apartment. As the
government points out, and as the district court noted in its
decision to deny Gillaum’s motion, the government never
challenged Gillaum’s testimony concerning how the gun
came to Gillaum’s apartment.
Had the BATF report been properly disclosed to the
defense, there would not have been a reasonable probability
No. 02-4015 17
4
the report would have changed the outcome of trial. In this
case, the history of the gun prior to entering Gillaum’s
apartment is immaterial. Put differently, a jury could have
considered the BATF report, found it persuasive, and still
reached the same decision. The BATF report, if accurate (the
police report attached to the BATF report only recited
Hesterly’s belief that the gun was stolen by Stinson), cor-
roborates only a portion of Gillaum’s presentation, that
Stinson stole the handgun, an issue the government did not
need to dispute. Cf. United States v. Thomas, 321 F.3d 627, 634
(7th Cir. 2003) (“[T]he government is not required to show
how [a defendant] acquired the firearm, just that he had
possession of one. Even if he held a gun only to inspect it,
[the defendant] would be guilty under 18 U.S.C. § 922(g).”);
United States v. Lane, 267 F.3d 715, 718 (7th Cir. 2001)
(“Physical control over a gun is remarkably easy to effect.”).
The report adds nothing to the issue in dispute— that
Gillaum had possession of the handgun. Evidence that
corroborates a portion of a defendant’s story that is not
directly relevant to the crime charged does not justify a
finding of materiality under Brady. Duest v. Singletary, 967
F.2d 472, 479 (11th Cir. 1992), vacated on other grounds, 507
U.S. 1048 (1993); see also Lingle v. Iowa, 195 F.3d 1023, 1026
(8th Cir. 1999) (holding that medical report was not material
for Brady purposes where report, at best, showed lack of
vaginal penetration of sexual abuse victim; penetration was
not necessary for conviction of sexual abuse of a minor
under Iowa law); United States v. Booz, 451 F.2d 719, 725 (3d
4
We do not mean to suggest that the government’s actions were
proper. Like the district court, we find it difficult to understand
why the government failed to turn over the burglary report to
Gillaum. We only suggest that here, the failure does not merit a
new trial for Gillaum.
18 No. 02-4015
Cir. 1971) (finding no Brady violation where withheld
statements corroborated a portion of defendant’s story
related to the defendant’s whereabouts in the hours after the
time of crime but did not corroborate the portion of the
defendant’s story involving the defendant’s whereabouts at
the time of the crime). There is not a reasonable probability
that the BATF report would have changed the outcome
under Brady. Thus it is not probable that the introduction of
the BATF report in a new trial would lead to an acquittal
under Rule 33.
D. The Calculation of Gillaum’s Sentence
We next turn to Gillaum’s argument concerning the
calculation of his sentence. Gillaum argues that the district
court improperly used two Illinois convictions to reach the
three necessary for Gillaum to be considered an “armed
career criminal” and subject to a sentence enhancement
pursuant to 18 U.S.C. § 924(e)(1). The district court rejected
Gillaum’s argument and sentenced Gillaum to a prison
sentence of 188 months.
Pursuant to 18 U.S.C. § 924(e)(1), a defendant found guilty
of violating any provision of 18 U.S.C. § 922 “and who has
three previous convictions . . . for a violent felony or a
serious drug offense, or both . . .” shall be sentenced to a
mandatory minimum prison sentence of 15 years. The
difference in sentencing for a defendant who has not pre-
viously been convicted of three such offenses is consider-
able: If a defendant does not have at least three such prior
convictions the defendant is subject to a statutory maximum
of ten years’ imprisonment. 18 U.S.C. § 924(a)(2).
Not all previous convictions can be used to reach the three
necessary for the sentence enhancement. Section 921(a)(20)
of Title 18 provides, in part, that:
No. 02-4015 19
Any conviction which has been expunged, or set aside
or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction
for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, pos-
sess, or receive firearms.
18 U.S.C. § 921(a)(20). Put more clearly, a conviction does
not count toward the three necessary for an enhanced sen-
tence if the defendant “has had civil rights restored” unless
the defendant has been put on notice that he may not “ship,
transport, possess, or receive firearms.”
On October 27, 1983, Gillaum received an “Order
For Discharge” signed by the Governor of Illinois (the
“Order”). The Order stated that Gillaum was “finally dis-
charged” from the convictions for attempted robbery and
aggravated battery. The Order also stated that Gillaum’s
“rights to vote and administer estates are regained.” There
was no notice that Gillaum could not possess a firearm.
Gillaum argues that the Order restored his civil rights but
did not give him notice that he could not possess a firearm.
As a result, Gillaum argues, the Illinois convictions cannot
be considered qualifying felonies for sentence enhancement.
If the Illinois convictions are not considered, Gillaum would
not have the requisite three prior qualifying felonies and
would not, therefore, be subject to an enhanced sentence.
The United States argues that because all of Gillaum’s civil
rights were not restored by the Order, the convictions were
properly considered.
At issue here, therefore, is whether the restoration of some
of a defendant’s civil rights (here the rights to vote and
administer estates) triggers the notice requirement of
§ 921(a)(20). In other words, if a discharge order states that
20 No. 02-4015
some specific civil rights have been restored but does not
notify the defendant that he is prohibited from possessing
guns, can the conviction covered by such order still count
towards sentence enhancement under § 924(e)(1)? This is a
question of law that this court reviews de novo.
This court has reviewed § 921(a)(20) on several occasions.
There was some discussion at oral argument as to possible
conflicts in the holdings of these cases and whether they can
be reconciled. As discussed below, these cases are not in
conflict and a close reading indicates that it is the law of this
circuit that a conviction is not counted only where the
discharge order restores all of a defendant’s civil rights and
there is no notice to the defendant that he may not possess
firearms.
Section 921(a)(20) has been described by this court as “an
anti-mousetrapping rule.” United States v. Erwin, 902 F.2d
510, 512 (7th Cir. 1990). The notice requirement for convic-
tions that have been discharged for the conviction to count
“is designed to prevent states from deceiving ex-convicts
into believing they have the right to carry guns.” United
States v. Wagner, 976 F.2d 354, 355 (7th Cir. 1992).
In some states, upon the completion of a criminal defen-
dant’s sentence, all or some of the defendant’s civil rights
are restored by the operation of statute. In other states,
however, the defendant is given documentary evidence that
his civil rights are restored. This court has held that, where
a criminal defendant is given a piece of paper restoring his
civil rights, a court’s inquiry is limited to that document. See
United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994)
(“When the state gives [a] person a formal notice of the
restoration of civil rights, . . . the final sentence of
§ 921(a)(20) instructs us to look, not at the contents of the
state’s statute books but at the contents of the document.”)
(emphasis added). If the document restores the defendant’s
No. 02-4015 21
civil rights but does not provide that the defendant may not
possess firearms, the underlying conviction cannot count
towards sentence enhancement. Id. (“The statutory question
is whether, when the state disseminates a writing purport-
ing to restore all civil rights, the document contains a
firearms qualification.”) (emphasis added). This court has
explained the rationale as follows:
If the state sends the felon a piece of paper implying
that he is no longer “convicted” and that all civil rights
have been restored, a reservation in a corner of the
state’s penal code can not be the basis of a federal
prosecution. A state must tell the felon point blank that
weapons are not kosher. The final sentence of
§ 921(a)(20) can not logically mean that the state may
dole out an apparently-unconditional restoration of
rights yet be silent so long as any musty statute with-
holds the right to carry guns. Then the state never
would need to say a peep about guns; the statute would
self-destruct. It must mean, therefore, that the state
sometimes must tell the felon that under state law he is
not entitled to carry guns. . . . When, however, the state
sends no document granting pardon or restoring rights,
there is no potential for deception, and the question
becomes whether the particular civil right to carry guns
has been restored by law.
Erwin, 902 F.2d at 512-13 (emphasis in original).
The text of the previous decisions of this court makes it
clear that a conviction does not count only if the discharge
document restores all of the defendant’s civil rights and the
discharge conviction does not state that the defendant may
not possess a firearm. In Erwin, this court stated that “[i]f
the state sends the felon a piece of paper implying that he is
no longer ‘convicted’ and that all civil rights have been
restored, a reservation in a corner of the state’s penal code
22 No. 02-4015
cannot be the basis of a federal prosecution.” Id. (quoted in
Wagner, 976 F.2d at 355; Glaser, 14 F.3d at 1218; Dahler v.
United States, 143 F.3d 1084, 1087 (7th Cir. 1998)). Impor-
tantly, the italicized emphasis on “all” was in the original
opinion. In Dahler, this court vacated the sentencing deci-
sion of the district court where the Wisconsin discharge
document provided that “any civil rights lost as result of
[this] conviction . . . are restored.” Dahler, 143 F.3d at 1087.
This court held that in this context, “ ‘[a]ny’ and ‘all’ convey
the same message to the recipient.” Id.
The logic of this court’s rationale also makes it clear that
the discharge document must restore all of the defendant’s
civil rights. If the discharge document states that all of a
defendant’s civil rights have been restored but does not
expressly state that the defendant may not possess firearms,
presumably the right to possess firearms is included with all
civil rights, and the defendant’s sentence cannot be en-
hanced. To permit such would be, in effect, a “mouse-
trap”—baiting the defendant into believing that he has a
right to carry a gun when he, in fact, does not. However,
if the state restores only specific civil rights, there is no
mousetrap—the restoration of specifically listed rights
cannot be said to restore additional civil rights (including
the right to possess a firearm) to the defendant that are not
among those listed.
Here, not all of Gillaum’s civil rights were restored. In-
stead, the discharge order provided only that Gillaum’s
rights to vote and administer estates had been restored. It is
difficult to imagine that a statement restoring two specific
rights, wholly unrelated to the possession of a firearm,
could “deceive an ex-convict into believing they have the
right to carry guns.” Wagner, 976 F.2d at 355. Gillaum’s
Illinois convictions were properly counted.
At oral argument, Gillaum’s counsel argued that this
court’s decisions in Dahler and Glaser suggest that the
No. 02-4015 23
Illinois convictions should not count. In both of these cases,
the defendants’ discharge documents restored all of their
civil rights but there was not a proper notice to the defen-
dant that he could not carry firearms. In Glaser, the dis-
charge document stated that the restoration of the defen-
dant’s civil rights did not relieve the defendant “of the
disabilities imposed by the Federal Gun Control Act.” This
court found that this statement was insufficient to satisfy the
notice requirement of § 921(a)(20). Glaser, 14 F.3d at 1217. In
Dahler, as addressed above, the discharge document
provided that “any civil rights lost as result of [this] convic-
tion . . . are restored.” Dahler, 143 F.3d at 1087. This court
concluded that specific notice of the prohibition on possess-
ing firearms was required. Because such notice was not
provided, Dahler was not subject to the enhancement,
although he still had one prior conviction which made him
ineligible to carry a firearm.
Gillaum’s counsel also argues that Dahler and Glaser stand
for the proposition that there must be unambiguous notice
to the defendant in the text of the discharge document that
he may not possess a firearm for the conviction to count
towards an enhancement of a defendant’s discharge. He is
correct—when notice is required. As discussed above, notice
is not required when the discharge document does not
restore all of a defendant’s civil rights. Because all of
Gillaum’s civil rights were not restored, there is no notice
requirement. Gillaum’s Illinois convictions were properly
counted.
E. The Constitutionality of the Federal Felon-In-Posses-
sion Statute
Finally, Gillaum argues that 18 U.S.C. § 922(g)(1) is an
unconstitutional exercise (facially and as applied to him)
24 No. 02-4015
of Congress’s power under the Commerce Clause of the
United States Constitution. Gillaum concedes, however, that
this court has previously rejected this argument. See, e.g.,
United States v. Lemons, 302 F.3d 769 (7th Cir. 2002), cert.
denied, 537 U.S. 1049 (2002); United States v. Mitchell, 299 F.3d
632 (7th Cir. 2002), cert. denied, sub nom., Peete v. United
States, 537 U.S. 1130 (2003); United States v. Wesela, 223 F.3d
656 (7th Cir. 2000). He has raised the issue on appeal only so
as to preserve the argument in the event of a change in the
law. We note that Gillaum has raised this argument and we
decline to revisit our well established precedents.
III. Conclusion
For the foregoing reasons, the decisions of the district
court are AFFIRMED.
WILLIAMS, Circuit Judge, concurring in part and dissenting
in part. I join the majority opinion with respect to parts
II.A-C and II.E, but respectfully disagree with its conclusion
in part II.D that Gillaum must have all civil rights restored
by a discharge order before his prior Illinois convictions
may be excluded at sentencing.
Section 921(a)(20) provides that “[a]ny conviction . . . for
which a person . . . has had civil rights restored shall not be
considered a conviction for purposes of this chapter, unless
such . . . restoration of civil rights expressly provides that
the person may not ship, transport, possess, or receive
No. 02-4015 25
firearms.” 18 U.S.C. § 921(a)(20) (emphasis added). On its
face, the statute does not require that all civil rights be re-
stored, and it is here that our inquiry should end. Hubbard
v. United States, 514 U.S. 695, 703 (1995) (“In the ordinary
case, absent any ‘indication that doing so would frustrate
Congress’s clear intention or yield patent absurdity, our
obligation is to apply the statute as Congress wrote it.’ ”)
(citation omitted); see also United States v. Chemetco, Inc., 274
F.3d 1154, 1159 (7th Cir. 2001) (“When the language of a
statute is clear and unambiguous, we must give effect to its
plain meaning unless doing so would ‘thwart the purpose
of the overall statutory scheme.’ ”) (citation omitted).
The cases on which the majority relies, see Dahler v. United
States, 143 F.3d 1084 (7th Cir. 1998), and United States v.
Glaser, 14 F.3d 1213 (7th Cir. 1994), are not outcome determi-
native because we were not in those cases addressing the
question of whether all civil rights had to be restored before
a conviction was to be excluded. Indeed, in those cases we
were dealing with documents that explicitly restored “any”
or “all” civil rights that had been lost as a result of convic-
tion, and that is clearly not the case in the matter presently
before us. See Dahler, 143 F.3d at 1087 (order provided that
“[a]ny civil rights lost as a result of conviction . . . are
restored by virtue of this discharge”) (emphasis added);
Glaser, 14 F.3d at 1218-19 (order restored Glaser to “all civil
rights and to full citizenship . . . the same as if such convic-
1
tion had not taken place”) (emphasis added). Our commen-
tary in United States v. Erwin, 902 F.2d 510 (7th Cir. 1990),
1
This court’s decision in United States v. Wagner, 976 F.2d 354
(7th Cir. 1992), is similarly inapposite as Wagner did not allege
that he ever received any express notice that his civil rights had
been restored, and the court was examining whether his civil
right to carry guns had otherwise been restored under Indiana
state law. Id. at 355.
26 No. 02-4015
that “[i]f the state sends the felon a piece of paper implying
that he is no longer ‘convicted’ and that all civil rights have
been restored, a reservation in a corner of the state’s penal
code can not be the basis of a federal prosecution,” should
not be read to require that all civil rights must be restored
before a document restoring civil rights is sufficient to
exclude a conviction as provided in section 921(a)(20). 902
F.2d at 512-13 (emphasis in original). This dicta at best
discusses one situation in which a government document
might actually restore civil rights. Any more expansive
reading of Erwin is in direct conflict with the language in the
statute.
I recognize the intuitive appeal of the argument that when
only a few civil rights are explicitly restored by a discharge
order, and others are not, a person such as Gillaum could
not reasonably be “mousetrapped” into believing his right
to carry firearms had been restored when it was not specifi-
cally enumerated in the order. The statute, however, does
not make an enumeration distinction. It simply provides
that if a person “had civil rights restored,” the conviction
shall not count unless the person was informed in the right-
restoring document that he or she “may not ship, transport,
possess, or receive firearms.” 18 U.S.C. § 921(a)(20). Because
Gillaum had civil rights restored by the discharge orders
from the Governor of Illinois, and was not informed in those
documents that he could not possess or carry a firearm,
these prior convictions should not have been used in
determining his sentence. For these reasons, I would vacate
the judgment of the district court and remand for
resentencing without the inclusion of these prior convic-
2
tions.
2
It may be that Gillaum ultimately receives the same sentence,
as the district court only relied on three of his many previous
(continued...)
No. 02-4015 27
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
2
(...continued)
convictions (only two of which are at issue here), and one or
more of his other convictions (for which he did not receive a
discharge order) may meet the requirements of 18 U.S.C. § 924.
See Dahler, 143 F.3d at 1088.
USCA-02-C-0072—1-20-04