United States v. Ellis, Bernard

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2512 & 08-2443
U NITED S TATES OF A MERICA,
Plaintiff-Appellee/
Cross-Appellant,
v.
B ERNARD E LLIS,
Defendant-Appellant/
Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 756—Wayne R. Andersen, Judge.
No. 08-4055
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ERNARD E LLIS,
Defendant Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:05 CR 131—Robert L. Miller, Jr., Judge.
A RGUED JUNE 3, 2009—D ECIDED S EPTEMBER 17, 2010
2 Nos. 08-2512, 08-2443 & 08-4055
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Bernard Ellis was the chief enforcer
for a notorious Chicago street gang. He was also a felon,
so to arm himself and the members of his gang, Ellis
would travel to Indiana and enlist others to buy fire-
arms for him there. This illegal activity drew the atten-
tion of two separate United States Attorneys who
took turns prosecuting him. In the Northern District of
Illinois, Ellis was charged with and pleaded guilty to
two counts of possession of a firearm by a felon in viola-
tion of 18 U.S.C. § 922(g)(1). In the Northern District of
Indiana, he was charged with four counts of the same
offense—one of which involved the same guns as the
Illinois case—and was convicted by a jury on these and
five additional crimes stemming from various straw
purchases of firearms. He appealed in both cases. The
government cross-appealed in the Illinois case to chal-
lenge the district court’s sentencing decision.
We have consolidated the appeals for disposition
because they raise one common and several related
questions. The common question is whether Ellis’s
Indiana conviction for felony intimidation under section
35-45-2-1 of the Indiana Code qualifies as a “violent
felony” under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). The Illinois district judge answered
this question “no” and therefore declined to apply the
ACCA’s 15-year minimum sentence. The Indiana judge
disagreed and held that the intimidation conviction was
a “violent felony” because it “has as an element the . . .
Nos. 08-2512, 08-2443 & 08-4055 3
threatened use of physical force against the person of
another,” 18 U.S.C. § 924(e)(2)(B)(i). Ellis challenges this
determination and makes myriad other claims of error
in the Indiana case; he also contends his sentence in the
Illinois case is unreasonable. The government’s cross-
appeal in the Illinois case contests the district court’s
violent-felony determination and contends that the 90-
month sentence imposed in that case is too low.
We affirm in part and reverse in part. On the sen-
tencing issue common to both cases, we affirm in the
Illinois case and reverse in the Indiana case. Ellis’s con-
viction for felony intimidation under Indiana law
does not have “as an element the . . . threatened use of
physical force against the person of another” and there-
fore does not qualify as a violent felony under the
primary definition of the term. The government has not
contended that it qualifies under the residual clause of
the violent-felony definition, so Ellis is not subject to the
enhanced penalties applicable to armed career criminals
under the ACCA or the sentencing guidelines. We also
reverse, on double-jeopardy grounds, Ellis’s conviction
on one of the § 922(g)(1) counts in the Indiana case; it
was based on Ellis’s possession of the same guns as in
the Illinois case, and the government has not sufficiently
established a break in constructive possession. We reject
all remaining arguments and remand the Indiana case
for resentencing.
4 Nos. 08-2512, 08-2443 & 08-4055
I. Background
A. Ellis’s Crimes
Ellis was the chief enforcer for the Chicago Gangster
Disciples street gang and in that role obtained firearms
for himself and other members of this violent street
gang. Because he is a convicted felon, however, his pos-
session of firearms is illegal, so he regularly arranged for
others to make straw purchases of guns in Indiana. As
charged in the Indiana case, on at least five occasions
between 2003 and 2005, Ellis traveled to a gun store in
Osceola, Indiana, and gave his girlfriend (or the girl-
friends of two of his nephews) money to purchase fire-
arms. The straw purchasers submitted false ATF 1 forms
stating they were buying the guns for themselves. After
each purchase Ellis took possession of the guns, returned
to Chicago, and instructed the women to report them as
stolen.
The ATF office in Chicago was alerted to these illegal
transactions after the last one in June 2005. In late July
2005, federal agents went to Ellis’s mother’s house in
suburban Chicago, where Ellis was then living, to ques-
tion him about the straw purchases and other criminal
activity. The agents told Ellis he was suspected of
having guns, drugs, and money stored at the house.
Ellis admitted he was a member of the Gangster Dis-
ciples, acknowledged he was an enforcer for the gang,
and said that he always carried a gun for protection. He
1
“ATF” refers to the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives.
Nos. 08-2512, 08-2443 & 08-4055 5
also admitted to orchestrating an illegal purchase of two
9-millimeter handguns in Indiana in June 2005. One of
these guns was in the house, and Ellis turned it over to
the agents. The other gun, he explained, was then in
the possession of a fellow gang member named “OG.” Ellis
offered to retrieve it for the agents. He then went to Chi-
cago’s South Side, retrieved the gun, and gave it to the
agents. In August 2005 federal agents caught Ellis on
audiotape giving a detailed and gruesome account of
acts of torture and extortion he committed while
shaking down Chicago drug dealers as an enforcer for
the Gangster Disciples. The agents also learned of a plot
by Ellis to carry out a home-invasion robbery of a Chi-
cago fireman who was dealing cocaine on the side. They
arrested Ellis before this robbery took place.
B. The Northern District of Illinois Prosecution
Prosecutors in the Northern District of Illinois charged
Ellis with two counts of illegal firearms possession by a
felon. See 18 U.S.C. § 922(g)(1). These counts centered
on Ellis’s possession of the two handguns from the
June 2005 straw purchase that he turned over to the
agents during the July 2005 interview. The government
sought application of the ACCA’s 15-year mandatory-
minimum sentence based on Ellis’s felony record, so
Ellis requested a pre-plea “advisory opinion” from the
district court on whether the ACCA applied. Ellis con-
ceded that two of his prior convictions qualified as
violent felonies under the ACCA; the question was
whether his 2003 Indiana conviction for felony intimida-
6 Nos. 08-2512, 08-2443 & 08-4055
tion was a violent felony. The district court “prelimi-
narily” ruled that this conviction was not a violent
felony because the state-court judge who sentenced Ellis
“did not really believe that Mr. Ellis engaged in or was
about to engage in any actual violent behavior.”
Ellis then entered guilty pleas to the two § 922(g)(1)
counts, and at sentencing the judge affirmatively held
that Ellis’s 2003 intimidation conviction was not a
violent felony under the ACCA. This meant that
neither the statutory 15-year minimum sentence nor the
enhancements in the sentencing guidelines applied;
without these adjustments, the advisory guidelines sug-
gested a sentence of 46 to 57 months. Based on Ellis’s
substantial and violent criminal history and the need to
protect the public, the judge imposed an above-guidelines
sentence of 90 months.
C. The Northern District of Indiana Prosecution
While Ellis was in federal custody in Illinois, a grand
jury in the Northern District of Indiana indicted him
on nine crimes: five counts of aiding and abetting the
making of a false statement intended to deceive a
licensed gun dealer in violation of 18 U.S.C. §§ 2, 922(a)(6),
and 924(a)(2); and four counts of possession of a firearm
by a felon in violation of 18 U.S.C. § 922(g)(1). One of
the firearms possession counts—Count 9 in the indict-
ment—involved the same two guns as the Illinois pros-
ecution.
For the protection of the witnesses in the Indiana case,
the United States Attorney asked an Indiana magistrate
Nos. 08-2512, 08-2443 & 08-4055 7
judge to seal the indictment during the pendency of the
Illinois case. The judge did so, and the indictment re-
mained sealed until shortly after Ellis was sentenced by
the Illinois district court. It was unsealed in May 2008,
more than two-and-a-half years after it was returned
and more than five years after the 2003 straw purchases
that formed the basis of five of the charges. So Ellis
moved to dismiss on Sixth Amendment speedy-trial and
statute-of-limitations grounds. The court denied these
motions. The case was tried to a jury, and at the close
of the evidence, Ellis moved to dismiss Count 9 on dou-
ble-jeopardy grounds. The district court denied this
motion, and Ellis was convicted on all counts.
At sentencing Ellis took the position that he could not
be sentenced as an armed career criminal because the
Illinois district court had already concluded his Indiana
intimidation conviction was not a violent felony. The
Indiana judge rejected this argument, noting that the
government had appealed the Illinois district court’s
decision and therefore it lacked the finality necessary to
trigger issue preclusion. On the merits the Indiana
judge disagreed with his Illinois counterpart and con-
cluded that Ellis’s state-court conviction for felony in-
timidation was indeed a violent felony because it has
“as an element . . . the threatened use of physical force
against the person of another,” as required by the first
part of the statutory definition of the term. See 18 U.S.C.
§ 924(e)(2)(B)(i).
This determination, in combination with other factors,
placed Ellis in Criminal History Category VI, and after
8 Nos. 08-2512, 08-2443 & 08-4055
applying several other applicable adjustments (notably
for possession of assault rifles and firearms with large-
capacity magazines), the district court arrived at an
advisory guidelines range of 360 months to life. The
judge imposed concurrent sentences of 480 months on
each of the felon-in-possession counts and concurrent
sentences of 120 months on each of the false-statement
counts.
II. Discussion
Ellis has appealed in both the Illinois and Indiana cases,
raising a host of challenges to his convictions and sen-
tences.2 In the Illinois case, he claims that his sentence
is unreasonable. In the Indiana case, he reiterates his
Sixth Amendment speedy-trial, statute-of-limitations, and
double-jeopardy arguments, and also claims the district
court committed several sentencing errors. As we have
noted, the government filed a cross-appeal in the Illinois
case, contesting the district court’s determination that
Ellis’s Indiana conviction for felony intimidation is not
a violent felony under the ACCA and arguing that the 90-
2
Not all of Ellis’s arguments merit discussion. He claims, for
example, that the district court committed several evidentiary
errors during the course of the jury trial on the Indiana
charges. These arguments relate to evidence of Ellis’s gang
membership, rank, and activity; the admission of federal
firearms tracing reports; and the prosecutor’s inadvertent
display to the jury of a photo of Ellis wearing jail clothing. We
have considered these arguments and reject them as meritless.
Nos. 08-2512, 08-2443 & 08-4055 9
month sentence is otherwise unreasonable. We take up
Ellis’s challenges to the Indiana convictions first, and
then move to the parties’ sentencing arguments.
A. Challenges to the Indiana Convictions
1. Sixth Amendment Speedy-Trial Challenge
Ellis argues that the lengthy delay between his Indiana
indictment and trial violated his right to a speedy trial
under the Sixth Amendment. Ellis was taken into
federal custody during the August 2005 arrest that pre-
empted his plot to rob a Chicago firefighter who was
trafficking in cocaine. Ellis’s arrest set in motion the
indictment and ensuing proceedings in the Northern
District of Illinois. In the meantime, in November 2005
the United States Attorney in the Northern District of
Indiana obtained a separate indictment against Ellis. As
we have noted, however, on the government’s motion
and for the protection of the witnesses, the indictment
was sealed the same day it was returned.
In August 2007 Ellis’s attorney learned of the sealed
Indiana indictment and in February 2008 invoked
Ellis’s Sixth Amendment right to a speedy trial. In May
2008—about a week and a half after the proceedings in
the Illinois case concluded—the Indiana indictment was
unsealed. Ellis moved to dismiss on Sixth Amendment
speedy-trial grounds. The district court denied the
motion, concluding that Ellis had suffered no prejudice
from the delay. Ellis’s trial on the Indiana charges began
on July 22, 2008, about two months after the indictment
was unsealed but 32 months after it was returned.
10 Nos. 08-2512, 08-2443 & 08-4055
We review de novo the court’s denial of Ellis’s mo-
tion to dismiss, but accept the court’s underlying
factual findings unless they are clearly erroneous. United
States v. Loera, 565 F.3d 406, 411 (7th Cir. 2009). The
Sixth Amendment guarantees an accused the right to a
“speedy and public trial.” U.S. C ONST. amend. VI. To
determine whether a pretrial delay violates this right, the
Supreme Court has instructed us to weigh four factors:
“whether delay before trial was uncommonly long,
whether the government or the criminal defendant is
more to blame for that delay, whether, in due course, the
defendant asserted his right to a speedy trial, and whether
he suffered prejudice as the delay’s result.” Doggett v.
United States, 505 U.S. 647, 651 (1992). As to the first factor,
“[w]e have considered delays that approach one year
presumptively prejudicial.” United States v. Oriedo, 498
F.3d 593, 597 (7th Cir. 2007). The 32-month delay at
issue here plainly exceeds this threshold. The remaining
factors, however, outweigh the effect of the delay in
this case.
Ellis’s prosecution on the Illinois charges fully ac-
counted for the delay and justified putting the Indiana
case on hold. Although the postponement was lengthy,
nothing suggests that the government was dragging its
feet or was otherwise at fault. See United States v.
Grimmond, 137 F.3d 823, 828 (4th Cir. 1998) (“Valid rea-
sons for delaying a trial are weighted in favor of the
Government.”). It is generally accepted that a delay
occasioned by the prosecution of the defendant in
another jurisdiction is not a basis for a dismissal on
constitutional speedy-trial grounds. See, e.g., United States
Nos. 08-2512, 08-2443 & 08-4055 11
v. Watford, 468 F.3d 891, 903 (6th Cir. 2006); United States
v. Brown, 325 F.3d 1032, 1035 (8th Cir. 2003); Grimmond,
137 F.3d at 830; United States v. Thomas, 55 F.3d 144, 150-
51 & n.6 (4th Cir. 1995).
Although many cases considering the speedy-trial
implications of separate prosecutions involve one state
and one federal prosecution, the practical problems of
simultaneous criminal proceedings in separate jurisdic-
tions are the same regardless of whether the sovereign
prosecuting each case is the same or different. In both
situations the administrative difficulties and safety con-
cerns presented by parallel prosecutions generally
justify delaying the second case. See Thomas, 55 F.3d at 150-
51 (noting that having “to increase inmate transportation
back and forth between [two courts carries] consequent
additional safety risks and administrative costs, and
[it] generally . . . throw[s] parallel . . . prosecutions into
confusion and disarray”); see also United States v.
Kimberlin, 805 F.2d 210, 225-26 (7th Cir. 1986) (detailing
confusion that ensued from simultaneous federal pros-
ecutions). In this case the government prudently opted
for consecutive prosecutions and brought the Indiana
charges to trial soon after the Illinois case was concluded.
Nor was Ellis actually prejudiced by the delay. He
argues that any delay is inherently prejudicial because
it provokes anxiety, see Barker v. Wingo, 407 U.S. 514,
532 (1972) (noting the prejudice factor is designed “to
minimize anxiety and concern of the accused”), but here
the district court reasonably determined that the effect
of this factor was extremely limited. Importantly, Ellis
12 Nos. 08-2512, 08-2443 & 08-4055
did not know about the sealed indictment until
August 2007. Beyond his general claim of delay-based
“anxiety,” Ellis has not identified a more concrete form
of prejudice attributable to the gap in time between
indictment and trial. Finally, we note that although
Ellis properly and “in due course” invoked his Sixth
Amendment speedy-trial right, this factor does not con-
tribute much to the balance of equities, and certainly not
enough to warrant dismissal. As we have explained,
the delay in the Indiana case was entirely attributable
to the ongoing proceedings in the Northern District of
Illinois, and Ellis’s argument for an earlier trial must be
considered against the practicalities of the situation. Cf.
id. at 531 (“Whether and how a defendant asserts his
right is closely related to the other factors we have men-
tioned.”). Under the circumstances here, the balance of
factors is rather straightforward. Although the delay in
bringing the Indiana case to trial was lengthy, we con-
clude that the district court properly denied Ellis’s
motion to dismiss the indictment on Sixth Amendment
speedy-trial grounds.
2. Statute-of-Limitations Challenge
Ellis next argues that Counts 1 through 5 of the Indiana
indictment were time-barred under the statute of limita-
tions, see 18 U.S.C. § 3282(a), and should have been dis-
missed. Section 3282(a) provides that “no person shall be
prosecuted, tried, or punished for any offense, not capital,
unless the indictment is found . . . within five years next
after such offense shall have been committed.” Although
Nos. 08-2512, 08-2443 & 08-4055 13
the grand jury returned the indictment in November 2005,
well before the five-year limitations period expired, the
indictment was immediately sealed and not unsealed
until May 2008, more than five years after the 2003 events
that formed the basis for Counts 1 through 5. Ellis’s
statute-of-limitations challenge turns on how the sealing
of an indictment affects when an indictment is “found”
within the meaning of § 3282(a).
The circuits are divided on whether the sealing of an
indictment affects when the indictment is “found” for
purposes of the statute of limitations. The Tenth Circuit
has held that an indictment is “found” under § 3282(a)
whenever it is returned by the grand jury; sealing the
indictment has no effect on this date. United States v.
Thompson, 287 F.3d 1244, 1248-52 (10th Cir. 2002). But
other circuits have held that sealing matters, at least in
one sense; these circuits have held that an indictment
is not “found” for purposes of § 3282(a) if it was
improperly sealed and the improper sealing prejudiced
to the defendant. See, e.g., United States v. Bracy,
67 F.3d 1421, 1426 (9th Cir. 1995); United States v. Sharpe,
995 F.2d 49, 51-52 (5th Cir. 1993) (per curiam); United
States v. Muse, 633 F.2d 1041, 1043-44 (2d Cir. 1980) (en
banc). We have not affirmatively taken a position on
the question, cf. United States v. Pearson, 340 F.3d 459, 464
(7th Cir. 2003) (citing Thompson but not mentioning the
circuit split), vacated on other grounds sub nom., Hawkins
v. United States, 543 U.S. 1097 (2005), and there is no need
to do so in this case. Even under the interpretation of
§ 3282(a) most favorable to Ellis—that improper sealing
makes a difference if it prejudiced him—his statute-of-
14 Nos. 08-2512, 08-2443 & 08-4055
limitations argument fails. The Indiana indictment was
properly sealed.
Under Federal Rule of Criminal Procedure 6(e)(4),3 a
district court’s power to seal an indictment is broad;
sealing an indictment is generally permitted when it is
in the public interest or serves a legitimate law-enforce-
ment purpose. See Worrell Newspapers of Ind., Inc. v.
Westhafer, 739 F.2d 1219, 1222-23 (7th Cir. 1984) (“[C]ourts
have the power to seal indictments or informations,
under appropriate circumstances, to facilitate the ap-
prehension of criminals.”); Bracy, 67 F.3d at 1426
(holding that the need to protect potential witnesses
from a violent gang may justify the sealing of an indict-
ment); United States v. DiSalvo, 34 F.3d 1204, 1218 (3d Cir.
1994) (“An indictment may be sealed for any legitimate
law enforcement reason or where the public interest
requires it.”); United States v. Southland Corp., 760 F.2d
1366, 1380 (2d Cir. 1985) (“[G]reat deference should be
accorded to the discretion of the magistrate [to seal an
indictment], at least in the absence of any evidence
of substantial prejudice to the defendant.”). Here, the
indictment was sealed for the security of the witnesses
and to guard against potential witness intimidation or
tampering. These reasons are legitimate and com-
pellingly supported by the record.
3
The Rule reads in relevant part: “The magistrate judge to
whom an indictment is returned may direct that the indictment
be kept secret until the defendant is in custody or has been
released pending trial.” F ED . R. C RIM . P. 6(e)(4).
Nos. 08-2512, 08-2443 & 08-4055 15
Ellis was the chief enforcer of a violent street gang and
had an acknowledged history of torture, extortion, and
shakedowns. Before he was arrested, he had threatened
several witnesses. Under these circumstances, it was
manifestly reasonable for the government to suspect that
Ellis might enlist fellow gang members to target wit-
nesses in the Indiana case during the pendency of the
Illinois prosecution. Ellis contends that sealing the in-
dictment was not necessary because some of the wit-
nesses had themselves been indicted. We are not per-
suaded. That some of the witnesses in the Indiana pros-
ecution were under public indictment does not mean
they could not be targets of intimidation or retaliation
by Ellis or his gang associates. Sealing the indictment
was a reasonable measure to protect the identity,
security, and testimony of the witnesses in the Indiana
case.
3. Double Jeopardy as to Count 9 in the Indiana Prosecution
Ellis was prosecuted in the Illinois case for unlawfully
possessing the two handguns from the June 2005
Indiana straw purchase that he turned over to the ATF
agents in Chicago on July 29, 2005. Count 9 in the
Indiana case charged Ellis with illegally possessing
the same two firearms in Indiana after they were ac-
quired in the straw purchase at the Osceola gun store.
Ellis argued in the district court that punishing him
twice for possessing the same guns violated the Double
Jeopardy Clause. The district court agreed as to the hand-
gun he kept at his mother’s house in Illinois; that gun
16 Nos. 08-2512, 08-2443 & 08-4055
never left his possession after he acquired it in Indiana. But
the court rejected Ellis’s double-jeopardy claim with
respect to the second gun from the June 2005 straw pur-
chase. Because Ellis retrieved that gun from a fellow
Gangster Disciple before giving it to federal agents, the
court held there was a “break in possession that is suffi-
cient to satisfy the . . . double-jeopardy clause of the
Constitution.” The court explained that Ellis “had the
[second] gun in June, . . . gave it to somebody else and
got it back. Getting it back was a crime for which
Mr. Ellis has been convicted in Illinois . . . .”
We review de novo the district court’s denial of Ellis’s
motion to dismiss Count 9. See United States v. Gilmore,
454 F.3d 725, 729 (7th Cir. 2006). The Double Jeopardy
Clause of the Fifth Amendment prohibits “punishing
twice, or attempting a second time to punish criminally,
for the same offense.” Witte v. United States, 515 U.S. 389,
396 (1995) (emphasis removed) (quotation marks omit-
ted). The § 922(g)(1) felon-in-possession crime is a con-
tinuing offense. See United States v. Fleischli, 305 F.3d
643, 658 (7th Cir. 2002) (“Possession of a firearm is a
continuing offense which ceases only when the pos-
session stops.”), superseded by statute on other grounds.
As such, the Double Jeopardy Clause prohibits pun-
ishing Ellis twice for a continuous possession of the
same gun, even under a theory that he is being charged
for different “moments” of possession. See United States
v. Hope, 545 F.3d 293, 296 (5th Cir. 2008). Accordingly, if
Ellis maintained possession of the second handgun
from the June 2005 straw purchase in Indiana until he
turned it over to federal agents the following month in
Nos. 08-2512, 08-2443 & 08-4055 17
Illinois, double jeopardy prohibits a second punishment
in the Indiana case after his conviction and sentence for
unlawfully possessing the same gun in Illinois.
As it did in the district court, the government argues
that Ellis’s act of retrieving the second gun from his
gang associate establishes that he committed two
separate crimes rather than one continuous crime of
possession, citing United States v. Conley, 291 F.3d 464, 470
(7th Cir. 2002). In Conley we held that a felon may be
charged with two crimes of unlawful possession of the
same firearm under § 922(g)(1) if he possessed the
gun, knowingly relinquished possession, and then reac-
quired possession of the gun. Id. at 470-71. Possession
may be actual or constructive, and “there is no legal
difference . . . between actual and constructive posses-
sion.” United States v. Moses, 513 F.3d 727, 733 (7th Cir.
2008); see also Conley, 291 F.3d at 468 n.2. Therefore, a
felon who unlawfully possesses a firearm and then re-
linquishes actual possession while maintaining construc-
tive possession has committed only one violation of
§ 922(g)(1). Stated differently, a felon in this situation—
one who maintains constructive possession of a firearm
while another has actual possession of it—does not
commit a new crime when he regains actual possession
of the firearm. See United States v. Jones, 403 F.3d 604,
606 (8th Cir. 2005) (handing firearm momentarily to
officers does not establish interruption of constructive
possession); United States v. Horodner, 993 F.2d 191, 193
(9th Cir. 1993) (leaving firearm with repairman for one
week does not establish break in constructive possession).
18 Nos. 08-2512, 08-2443 & 08-4055
Therefore, to charge and punish a defendant for more
than one § 922(g)(1) offense for separate “possessions” of
the same gun, there must be a relinquishment of both
actual and constructive possession of the gun before it is
reacquired. See United States v. Lloyd, 71 F.3d 1256, 1267
(7th Cir. 1995). Here, Ellis argues that he committed only
one continuous § 922(g)(1) offense involving both of the
firearms from the June 2005 straw purchase—the one
he kept at his mother’s house and the one that was in
OG’s actual possession at the time he retrieved it and
gave it to the agents. Because he was convicted and
punished for illegally possessing the guns in Illinois, he
cannot be punished a second time in Indiana unless the
government can establish that he relinquished construc-
tive possession of the second firearm while it was in
OG’s actual possession.
Our cases hold that a gang leader constructively pos-
sesses a gang firearm when he has knowledge of the
firearm’s existence and intentionally directs the actions
of those who physically possess it. United States v.
Rawlings, 341 F.3d 657, 659 (7th Cir. 2003) (“[A] drug lord
who directs his enforcers to arm themselves is, if they
do so, a constructive possessor of the arms. He is acting
through agents, just as in the case . . . of the felon who
asks his companion to hold his gun for him.” (citations
omitted)); United States v. McAnderson, 914 F.2d 934, 947-
48 (7th Cir. 1990) (upholding a finding of constructive
possession where the gang leader “was aware of the
violence that had been planned and knew that the
weapons in the [gang’s] possession would be used to
commit [violent] acts”); see also Lloyd, 71 F.3d at 1266
Nos. 08-2512, 08-2443 & 08-4055 19
(“Constructive possession exists when a person does not
have actual possession but instead knowingly has
the power and the intention at a given time to exercise
dominion and control over an object, either directly or
through others.” (quotation marks omitted)). As the
chief enforcer for the Gangster Disciples, Ellis certainly
was a gang leader, but the district court held that he
could not have had “constructive possession of every
firearm in the possession of a member of the Gangster
Disciples.”
We think this overstates the inquiry. The pertinent
question is not whether Ellis was in constructive posses-
sion of every firearm in the Gangster Disciples’ arsenal
but whether he relinquished constructive possession of
this particular firearm while it was in the actual pos-
session of OG, his gang associate. And on this question
the record is scanty and the government’s argument
nonexistent. We do not know how long Ellis possessed
the gun after the straw purchase in June 2005. We do not
know when he gave it to OG (or how OG otherwise
came into actual possession of it) or what OG’s posses-
sory “rights” were with respect to the firearm. We do
know that Ellis was able to reacquire actual physical
possession of the gun on a moment’s notice on July 29
and then permanently deprive OG of possession of it.
The government has focused its argument exclusively
on the break in actual possession of the firearm and does
not address the question of constructive possession at all.
Moreover, Conley, on which the government heavily
relies, is factually distinguishable from this case. There,
20 Nos. 08-2512, 08-2443 & 08-4055
the defendant was indicted for two violations of
§ 922(g)(1) for possessing the same shotgun on two
dates about six months apart. Conley, 291 F.3d at 467. The
shotgun in question was not owned by the defendant
but by a friend who lived in a trailer behind the defen-
dant’s house. The first count in the indictment charged
the defendant with possessing the shotgun on July 7,
1999; the evidence established that on that date he had
fired it to scare a group of teenagers off his property. The
second count charged him with possessing the shot-
gun about six months later, in January 2000. Regarding
this second possession, the evidence established that
the owner of the shotgun had resumed possession of it
sometime after the July 7 incident and retained posses-
sion until the fall when he moved away and abandoned
the gun to the defendant. During the execution of a
search warrant on January 27, 2000, the shotgun was
found in the defendant’s padlocked storage shed, along
with many other items of his property. Id. at 467-68.
This evidence, we held, established an interruption in
the defendant’s possession of the shotgun sufficient
to establish two separate crimes and therefore permit
more than one punishment for distinct acts of pos-
sessing the same firearm. Id. at 470-71.
Conley thus involved two separate episodes of actual
possession of the same firearm; the question was
whether there was a sufficient break between the two
for double-jeopardy purposes. Constructive posession
was not at issue. This case is different. Here, it is undis-
puted that Ellis relinquished actual possession of the
second gun after he acquired it from the straw pur-
Nos. 08-2512, 08-2443 & 08-4055 21
chaser in June 2005; the important question for double-
jeopardy purposes is whether he relinquished construc-
tive possession as well. As we have noted, the govern-
ment has not discussed this question at all; it has not
addressed, that is, whether the evidence establishes
that Ellis intended either to relinquish or maintain
control over the gun while OG had it. As far as we can
tell, to the extent the evidence points in one direction or
another, it appears to suggest that Ellis intended to main-
tain dominion and control over the gun. He knew exactly
where it was kept and was able to get it back from OG
in very short order and deprive him permanently of it.
In any event, we are hard-pressed to credit the oppo-
site view of the evidence when the government has
neither made nor supported an argument in favor of it.4
4
Our cases are not clear about who has the burden in a double-
jeopardy claim of this type. In United States v. Dortch, 5 F.3d
1056, 1061 (7th Cir. 1993), we said that “at the post-trial stage
the defendant alone bears the burden of proving that he or
she has been charged with the same offense twice.” On the
other hand, in United States v. Doyle, 121 F.3d 1078, 1089 (7th
Cir. 1997), we applied a burden-shifting approach and held
that “[t]he defendant first must set out a prima facie case that
the second indictment charges him with the same offense for
which he has already been convicted. Then, the burden
switches to the government to demonstrate, by a preponder-
ance of the evidence, that the two indictments charged sepa-
rate offenses.” Conley considered the double-jeopardy ques-
tion—whether there was an interruption in the defendant’s
(continued...)
22 Nos. 08-2512, 08-2443 & 08-4055
In the face of this silence, we conclude that double jeop-
ardy precludes punishing Ellis twice under § 922(g)(9)—
first in the Illinois case and then in the Indiana case—based
on his possession of the same gun. His motion to
dismiss Count 9 should have been granted.
4
(...continued)
possession of the firearm—to be part of the government’s
general burden of proof at trial. United States v. Conley, 291 F.3d
464, 470-71 (7th Cir. 2002). (“Because the Government was
required to convince the jury beyond a reasonable doubt of
Conley’s possession of the shotgun on two separate dates, as
two distinct courses of conduct, the Government established
the elements of two separate crimes.”). The disagreement over
the applicable standards is not limited to this circuit. See, e.g.,
United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008) (“To
prevail on a double jeopardy argument, the defendant bears
the burden to establish, both in law and in fact, the commonality
of the offenses.” (quotation marks omitted)); United States v.
Olmeda, 461 F.3d 271, 282 (2d Cir. 2006) (“In considering
double jeopardy challenges to successive conspiracy prosecu-
tions, this court has identified a shifting burden of proof.”);
United States v. Jones, 403 F.3d 604, 606 (8th Cir. 2005) (“The
government argues that the record will support a finding
beyond a reasonable doubt that Mr. Jones knowingly lost and
then regained possession of the firearm . . . .”); see also United
States v. Guzman, 85 F.3d 823, 827 n.3 (1st Cir. 1996) (recognizing
other circuits’ various positions). As we have noted, the gov-
ernment relied entirely on Conley in its brief and at oral argu-
ment acknowledged that it had the burden of establishing
factually separate offenses beyond a reasonable doubt. We
will hold the government to this concession.
Nos. 08-2512, 08-2443 & 08-4055 23
B. Sentencing Challenges
1. Sentencing Enhancement Under the Armed Career
Criminal Act
The two district courts disagreed over whether Ellis’s
Indiana conviction for felony intimidation qualifies as
a third predicate violent felony for purposes of the en-
hanced penalties in the ACCA and the corresponding
sentencing guidelines. This is the primary issue in Ellis’s
challenge to his sentence in the Indiana case and
prompted the government’s cross-appeal in the Illinois
case.
Ordinarily, a defendant who violates § 922(g)(1) may be
“imprisoned not more than 10 years.” 18 U.S.C. § 924(a)(2).
But under the ACCA, a defendant who violates § 922(g)(1)
“shall be . . . imprisoned not less than fifteen years” if
he “has three previous convictions . . . for a violent
felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). As relevant here, the ACCA defines
“violent felony” as any crime punishable by more than
one year in prison and that “has as an element the use,
attempted use, or threatened use of physical force
against the person of another.” Id. § 924(e)(2)(B)(i). A
defendant who is subject to the ACCA’s enhanced penal-
ties as an armed career criminal is also subject to higher
offense and criminal-history levels under the sentencing
guidelines. See U.S.S.G. § 4B1.4.
The parties agree that two of Ellis’s convictions—for
robbery and armed robbery—are violent felonies. Their
disagreement centers on whether his Indiana conviction
for felony intimidation under IND. C ODE § 35-45-2-1
24 Nos. 08-2512, 08-2443 & 08-4055
qualifies as a third violent felony. A person is guilty of
intimidation under Indiana law if he “communicates a
threat to another person” with one of three prohibited
intents; the one that is relevant here is “the intent . . . that
the other person be placed in fear of retaliation for a
prior lawful act.” IND. C ODE § 35-45-2-1(a)(2). The
statute also defines “threat” in several different ways.
The relevant definition in this case is “an expression, by
words or action, of an intention to . . . unlawfully injure
the person threatened or another person.” Id. § 35-45-2-
1(c)(1). Although Indiana’s intimidation offense is gen-
erally a misdemeanor, the crime is a felony (and
carries a possible prison term of more than one year) if
the threat is directed at a law-enforcement officer. Id. § 35-
45-2-1(b)(1)(B)(i).
Ellis pleaded guilty to a state-court information
charging him with Class D felony intimidation for threat-
ening to “harm” a police officer who had arrested him.
As we have noted, this implicates the version of the
intimidation offense that requires an “expression . . . of
an intention to unlawfully injure” another “with the
intent . . . that the other person be placed in fear of retalia-
tion for a prior lawful act.” IND. C ODE § 35-45-2-1(a)(2)
and (c)(1). After reviewing the state-court record, the
district judge in the Illinois case decided that Ellis’s
offense was not a violent felony because “the [state-
court] judge did not really believe that Mr. Ellis engaged
in or was about to engage in any actual violent behav-
ior.” The Indiana judge disagreed and held that a con-
viction for the offense described in subsections (a)(2)
and (c)(1) of the Indiana statute “has as an element the
Nos. 08-2512, 08-2443 & 08-4055 25
threatened use of physical force against another person”
and therefore counts as a violent felony.5 We review these
determinations de novo. United States v. Woods, 576 F.3d
400, 408 (7th Cir. 2009).
A “categorical approach” applies to the determination
of whether a crime qualifies as a violent felony under
the ACCA. See, e.g., United States v. Dismuke, 593 F.3d
582, 589 (7th Cir. 2010); Woods, 576 F.3d at 403-04 . Under
this approach “we ‘look only to the fact of conviction
and the statutory definition of the prior offense’ rather
than the ‘particular facts disclosed by the record of con-
5
Ellis argues that the Indiana district judge was precluded
from considering the application of the ACCA to his intimida-
tion conviction because the issue had already been decided
by the Illinois district court. As a general matter, “[i]ssue pre-
clusion bars successive litigation of ‘an issue of fact or law’ that
‘is actually litigated and determined by a valid and final judg-
ment, and . . . is essential to the judgment.’ ” Bobby v. Bies, 129
S. Ct. 2145, 2152 (2009) (quoting R ESTATEMENT (S ECOND ) OF
JUDGMENTS § 27 (1980)). It is unclear how the doctrine of issue
preclusion applies in criminal sentencing. The Supreme Court
has applied the doctrine to a jury’s factual determinations
necessary to an acquittal, Ashe v. Swenson, 397 U.S. 436, 443-45
(1970), but it has also suggested that the doctrine applies
more narrowly in the criminal context than the civil context,
Standefer v. United States, 447 U.S. 10, 22-25 (1980). We have
uncovered only one case in which a federal circuit court
applied issue preclusion at sentencing, and that was in a
capital case. See Delap v. Dugger, 890 F.2d 285, 314-19 (11th
Cir. 1989). Because we agree with Ellis’s position on the
merits, we need not decide the procedural issue here.
26 Nos. 08-2512, 08-2443 & 08-4055
viction.’ ” Dismuke, 593 F.3d at 589 (quoting Shepard v.
United States, 544 U.S. 13, 17 (2005) (internal quotation
marks omitted)). A modified categorical approach
applies when the relevant statute is divisible—that is,
when the statute describes multiple crimes or one crime
with multiple modes of commission. Id. This approach
permits an “expand[ed] . . . inquiry into a limited
range of additional material . . . in order to determine
whether the jury actually convicted the defendant of
(or, in the case of a guilty plea, the defendant expressly
admitted to) violating a portion of the statute that con-
stitutes a violent felony.” Id. (internal quotation marks
and emphasis omitted). This inquiry, however, is limited
to “the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea
was confirmed by the defendant, or to some comparable
judicial record of this information.” Shepard, 544 U.S.
at 26. Importantly, the point of the modified categorical
approach is to determine which part of a divisible
statute the defendant was convicted of violating, not to
evaluate the actual facts of the underlying case. Dismuke,
593 F.3d at 589. As such, the Illinois judge’s focus on
whether Ellis had “engaged in or was about to engage
in any actual violent behavior” was misplaced.
The Illinois judge reached the right result, however, if
by the wrong route. Indiana’s intimidation statute is
divisible in the sense required to trigger the modi-
fied categorical approach, so a review of the state-court
charging document and Ellis’s plea colloquy was appropri-
ate—but only to determine which part of the Indiana
Nos. 08-2512, 08-2443 & 08-4055 27
intimidation statute he was convicted of violating. As we
have already noted, it is clear from these documents
that Ellis was convicted under subsections (a)(2) and
(c)(1) of the statute for threatening to “unlawfully
injure” a law-enforcement officer, making his offense a
felony under the penalty section of the statute. IND.
C ODE § 35-45-2-1(b)(1)(B)(i). The government maintains,
and the Indiana district court held, that this crime “has
as an element the . . . threatened use of physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
We disagree.
The Supreme Court’s decision in Johnson v. United States,
130 S. Ct. 1265 (2010), provides the framework for deter-
mining whether a crime has as an element the use of
physical force against another. The Supreme Court ex-
plained in Johnson that “in the context of a statutory
definition of ‘violent felony,’ the phrase ‘physical force’
means violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 1271
(citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)).
Applying this interpretation, the Court concluded
that Florida’s battery statute—which requires for convic-
tion only intentional physical contact, no matter how
slight, see id. at 1269-70—did not include as an element
the use of physical force and therefore was not a
violent felony under the ACCA. Id. at 1274.
If under Indiana law a threat to “unlawfully injure”
another person includes only threats to inflict physical
injury, then a violation of subsection (c)(1) of Indiana’s
intimidation statute has as an element the threatened
28 Nos. 08-2512, 08-2443 & 08-4055
use of physical force, as required by the ACCA and
explained in Johnson. Ellis argues, however, that the
statute does not require a threat to inflict a physical
injury, noting instead that a threat to “unlawfully injure”
can be directed at either physical or nonphysical injuries,
the latter including emotional or reputational harms.
The government notes in supplemental briefing that
most of the published Indiana cases analyzing convic-
tions under subsection (c)(1) involve threats of physical
force against others. See, e.g., Hyde v. State, 531 N.E.2d
472, 473 (Ind. 1988) (shotgun owner’s threat to “blow
[officer] away”); H.J. v. State, 746 N.E.2d 400, 403 (Ind. Ct.
App. 2001) (threat to put gun to another’s head and pull
trigger). But neither the language of the statute itself nor
any Indiana case limits the reach of subsection (c)(1) to
threats of physical injury. Indeed, Ellis has alerted us to
one Indiana Supreme Court decision suggesting that
subsection (c)(1) covers threats to inflict nonphysical
injuries.
In Meek v. State, 185 N.E. 899 (Ind. 1933), the defendant
threatened to disinter and sell the body of a widow’s
late husband unless she paid $200. Indiana charged the
defendant with violating the then-operative blackmail
statute, which criminalized “threat[s] to do any injury
to the person or property of any one.” Id. at 900. The
defendant argued that the prosecution failed under
the statute because he had not threatened to do any
injury to the victim herself or to her property. The
Indiana Supreme Court rejected this argument, instead
concluding that “injury to the person” included “a
threat to invade any right for the invasion of which an
Nos. 08-2512, 08-2443 & 08-4055 29
action in damages would lie.” Id. at 901. Thus, the court
explained, “The damage that would result to a widow
from disinterment, removal, or destruction of the body
of her husband consists principally, at least, in physical
and mental pain, anguish, and suffering, and to that
extent is an ‘injury to the person.’ ” Id.
Meek teaches that “an injury to the person” for pur-
poses of Indiana’s threat statute encompasses threats
of physical and nonphysical injuries. Although sub-
section (c)(1) of the intimidation statute uses the term
“unlawfully injure,” the fact that the earlier and the cur-
rent version of the statute use the word “injury” without
any modifier is significant. An “injury” is “[t]he viola-
tion of another’s legal right, for which the law provides
a remedy,” and can be either physical or nonphysical.
B LACK’S L AW D ICTIONARY 856 (9th ed. 2009). Moreover, the
Indiana Code uses the phrases “bodily injury” and “serious
bodily injury” to signify physical injuries. See I ND. C ODE
§§ 35-41-1-4 (defining “bodily injury”) & 35-41-1-25
(defining “serious bodily injury”); see also IND. C ODE § 35-
42-2-1(a) (using the terms in the battery statute). If
the intimidation offense described in subsection (c)(1) of
the statute were limited to threats of physical injury,
it would use a term such as “bodily injury,” as the
Indiana Code does elsewhere when only physical
injury is meant. Instead, the intimidation statute uses
the general term “injure” and therefore applies more
broadly to encompass threats to inflict “unlawful in-
jury,” whether physical or nonphysical.
The government contends that this interpretation is
in direct tension with United States v. Sperberg, 432 F.3d
30 Nos. 08-2512, 08-2443 & 08-4055
706, 707-08 (7th Cir. 2005), which held that a conviction
under a similar Wisconsin statute was a violent felony.
At issue in Sperberg was W IS. S TAT. 943.30(1), which pro-
vides in relevant part: “Whoever . . . threatens or
commits any injury to the person . . . of another . . . with
intent to compel the person so threatened to do any act
against the person’s will or omit to do any lawful act, is
guilty of a Class H felony.” The defendant in Sperberg
stole lobster tails from a grocery store, and while
making his escape told a security guard to get out of his
way, stating, “I’ve got a gun and I’ll shoot you.” Although
noting that “Wisconsin equates physical and economic
injury,” we affirmed the district court’s determination
that Sperberg’s crime was a “violent felony” because
the defendant had threatened the guard with physical
injury. Id. at 707-08.
Our later decision in Woods undermines Sperberg to the
extent that its holding was premised on an examination
of the specific facts underlying the defendant’s conviction
when the statute describing the crime is nondivisible.
Woods specifically disavowed this understanding of the
modified categorical approach. See Woods, 576 F.3d at 404
(“What the sentencing court cannot do is to look at
the particular facts underlying the defendant’s convic-
tion.”). Under the modified categorical approach, properly
understood, the result in Sperberg would likely have
been different; the opinion specifically noted that
W IS. S TAT. 943.30(1) permits prosecutions for threats to
cause physical and nonphysical injuries. Sperberg, 432
F.3d at 708. Sperberg does not control the outcome here.
Nos. 08-2512, 08-2443 & 08-4055 31
We hold that Ellis’s conviction under IND. C ODE § 35-45-
2-1(a)(2) and (c)(1) is not a violent felony under the
ACCA because it does not “ha[ve] as an element the . . .
threatened use of physical force against the person of
another.” § 924(e)(2)(B)(i). This conclusion requires
resentencing in the Indiana case. The government has
not argued that Ellis’s intimidation conviction qualifies
as a violent felony under the ACCA’s residual clause. See
id. at § 924(e)(2)(B)(ii) (a crime is a “violent felony” if the
crime “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”); see
also Begay v. United States, 553 U.S. 137 (2008) (analyzing
the residual clause). Neither district court considered
this question, and by not advancing this alternative
argument on appeal, the government has waived it. See
United States v. Knox, 573 F.3d 441, 450 (7th Cir. 2009).
2. Reasonableness of the Illinois Sentence
Ellis’s advisory guidelines range in the Illinois case was
46 to 57 months, but the district court imposed an above-
guidelines sentence of 90 months in prison. The judge
explained that Ellis’s extensive criminal history justified
a sentence above the recommended range, noting that
Ellis’s prior crimes were “potentially horrifying to the
people involved” and that his earlier “ten-year time in
jail did not deter [him] from committing crimes when
he got out of jail.” Ellis argues that 90 months is unrea-
sonably high. The government argues that 90 months is
unreasonably low. Our review is for an abuse of discre-
32 Nos. 08-2512, 08-2443 & 08-4055
tion. Gall v. United States, 552 U.S. 38, 51 (2007). “[W]e
will uphold an above-guidelines sentence so long as the
district court offered an adequate statement of its
reasons, consistent with 18 U.S.C. § 3553(a), for imposing
such a sentence.” United States v. McIntyre, 531 F.3d 481,
483 (7th Cir. 2008) (per curiam).
Under the circumstances here, a 90-month sentence
strikes us as quite lenient. Ellis is a former chief enforcer
for a violent Chicago street gang, committed serious gun
crimes, and has an appalling criminal record and an
acknowledged history of torture and extortion. But the
court’s explanation for the sentence was adequate
and grounded in an appropriate consideration of the
§ 3553(a) factors. That a longer sentence would have
made sense does not make this sentence unreasonable.
And the 90-month sentence is hardly unreasonably high,
as Ellis contends. There was no abuse of discretion.
III. Conclusion
For the foregoing reasons, the judgment in the Illinois
case is A FFIRMED. Ellis’s conviction on Count 9 in the
Indiana case is R EVERSED, but the remaining convictions
are A FFIRMED. Ellis’s sentence in the Indiana case is
V ACATED , and the case is R EMANDED for resentencing
consistent with this opinion.
9-17-10