U.S. v. Ellis

• Decision Date: 22 August 2006
• Docket Number: No. 05-3942.,05-3942.
• Citation: 460 F.3d 920
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian K. ELLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

460 F.3d 920

UNITED STATES of America, Plaintiff-Appellee, v. Brian K. ELLIS, Defendant-Appellant.

No. 05-3942.

United States Court of Appeals, Seventh Circuit.

Argued February 17, 2006.

Decided August 22, 2006.

Todd S. Shellenbarger (argued), Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee.

Conor M. O'Daniel (argued), Evansville, IN, for Defendant-Appellant.

Before FLAUM, Chief Judge, and KANNE and WOOD, Circuit Judges.

KANNE, Circuit Judge.

After being convicted at trial on three counts of illegal possession of firearms, Brian K. Ellis was sentenced as an armed career criminal to 300 months' imprisonment. He now raises three issues on appeal, including one argument relying on the decision of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm.

I. HISTORY

Ellis was pulled over in Gibson County, Indiana, when a police officer noticed him driving erratically. He failed some initial field sobriety tests, but a field test for the presence of alcohol came up negative. With the officer's prompting, Ellis agreed to go to a hospital to have his blood and urine tested for drugs.

At this point, the officer placed Ellis in custody. An inventory search of the pickup truck Ellis was driving led to the discovery of a loaded .22 caliber revolver on the driver's side floorboard, .22 caliber ammunition scattered throughout, drug paraphernalia, and several cans of beer. The only other passenger, Bradley Ventress, was interviewed and quickly denied ownership of the gun. Ellis, who has a lengthy criminal history including three felony convictions, also disclaimed ownership of the gun.

After undergoing tests at a local hospital, Ellis was released from custody. A warrant was later issued for his arrest on a state DUI charge. That state charge was followed by a federal indictment charging Ellis with unlawful possession of a firearm. Ellis was not interested in facing the warrant or the indictment and apparently went into hiding.

About a month later, police were tipped off that Ellis was at a residence in rural Illinois near the Indiana border. The local authorities made plans to arrest him. Ellis had other plans. As the jury heard, a sheriff's deputy attempted to effect a traffic stop on Ellis after he drove away from the residence, but by the time Ellis's car stopped, it was on fire. He then jumped out of the car with a can of Coleman fuel in his hands, which he used to feed the fire. After dousing the flames and throwing the whole fuel can into the car, Ellis ran into a cornfield. The Illinois State Police were called to assist, and in a matter of hours Ellis was arrested. When taken into custody, he had in his possession a .22 caliber Beretta and a receipt from the retailer Wal-Mart. What the jury did not hear was that before dousing his car with fuel and fleeing the scene, Ellis led authorities on a harrowing car chase during which he repeatedly fired shots at the police.¹

Subsequent investigation revealed that the Wal-Mart receipt documented a recent purchase of ammunition. Federal agents traced the receipt to a store in Vincennes, Indiana, where they were able to obtain video footage (later shown to the jury) of Ellis purchasing the ammunition.

Ellis was charged by a superseding indictment with three counts. Counts I and II, both based on the initial traffic stop in Indiana, charged that he was a felon in possession in violation of 18 U.S.C. § 922(g)(1), and a user of a controlled substance in possession of a firearm in violation of § 922(g)(3), respectively. Count III charged that Ellis was a felon in possession in violation of § 922(g)(1) based upon the events leading to his final arrest in Illinois. The indictment also alleged that Ellis would be subject to the fifteen-year mandatory minimum of § 924(e) because of his three previous felony convictions.

A trial was held on all three counts over Ellis's motion to sever Count III. A certified copy of the results of Ellis's blood and urine tests was introduced at trial over Ellis's objection under Crawford. The results were introduced as business records to help prove that Ellis was a user of controlled substances. Authentication of these records was established under Federal Rule of Evidence 902(11).² The records were admitted during the testimony of the arresting officer. He testified that he took Ellis to the hospital and witnessed a lab technician draw blood and Ellis urinate in a cup. He also testified that the results of the urine tests were positive for methamphetamine.

The actual exhibit of medical records admitted at trial contains a number of pages, including a certification of authenticity performed by a laboratory technician at the local hospital. The exhibit also contains two forms filled out at the local hospital, which apparently accompanied Ellis's blood and urine samples. These forms indicate that the "Collector" of the samples was a person with the first name Kristy. These forms were signed by Ellis and had a number of preprinted "Reason[s] for Test." The box checked on Ellis's forms indicates that the reason for his tests was "Reasonable Suspicion/Cause." Furthermore, in the section of one of the forms indicating which tests would be performed, presumably the form accompanying Ellis's blood, there is a handwritten note stating "Blood Drug Screen—Requested by Officer."

The exhibit also includes pages indicating three separate tests of Ellis's samples. An initial test of Ellis's urine was performed by Kristy at the local hospital on the same day Ellis was there. It returned a positive result for methamphetamine. The samples were then apparently shipped out of state to two separate companies for further tests—one for blood and one for urine. Both companies produced documents—dated after Ellis's trip to the hospital—indicating that Ellis had methamphetamine in his system.

The jury convicted on all counts. At sentencing, Ellis, relying on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), objected to the Presentence Report's conclusion that he should be sentenced as an armed career criminal, and other enhancements, on the basis that the jury had not found all the necessary predicate facts. The judge disagreed. The resultant offense level and criminal history were 34 and VI, respectively, which led to a Guidelines range of 262-327 months' imprisonment. U.S.S.G. § 4B1.4(b)(3)(A) (2004). The judge sentenced Ellis to 300 months' imprisonment.

II. ANALYSIS

We can easily dispose of two of the issues. First, denial of the severance motion, which we review for abuse of discretion, was not reversible error. See United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir.2000) (citation omitted). We approved of the joinder of four "discrete, unconnected" felon in possession charges in United States v. Coleman by emphasizing that the evidence was neither excessive nor confusing and that an accusation of gun possession is generally not unduly prejudicial to a defendant. 22 F.3d 126, 131-35 (7th Cir.1994); see United States v. Walls, 80 F.3d 238, 242-43 (7th Cir.1996) (approving the joinder of two unconnected felon-in-possession charges). Here, all three weapons charges "are of like class" as in Coleman, and Ellis points to no facts indicating any materially greater prejudice than that we have already considered insufficient to require severance. See Coleman, 22 F.3d at 133.

Second, we reject Ellis's invitation to find error in his being sentenced as an armed career criminal on the basis that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is no longer good law. This is something we cannot do. See United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006) (noting that "Almendarez-Torres remains intact"); United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006) (explaining that the "continued authority of Almendarez-Torres is not for us to decide"); see also United States v. Williams, 410 F.3d 397, 402 (7th Cir.2005) ("[T]he district court does not violate a defendant's Sixth Amendment right to a jury trial by making findings as to his criminal record that expose him to greater criminal penalties.") (citations omitted). There is also no merit in Ellis's argument that the district judge committed error in making findings of fact to support other enhancements. See United States v. Dean, 414 F.3d 725, 727-30 (7th Cir.2005).

Having dealt with those issues, we are left with Ellis's argument relying on Crawford attacking the admission of the medical records establishing the presence of methamphetamine in his system. Evidentiary rulings affecting a defendant's right to confront witnesses are reviewed de novo. United States v. Gilbertson, 435 F.3d 790, 794-95 (7th Cir.2006) (citations omitted). The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him." U.S. Const. amend. VI. As we now know, this right applies only to evidence that is considered "testimonial." Davis v. Washington, ___ U.S. ___, ___-___, 126 S.Ct. 2266, 2273-76, 165 L.Ed.2d 224 (2006). Hearsay evidence that is nontestimonial "is not subject to the Confrontation Clause." Id. at 2273. The Supreme Court, however, has expressly declined to provide a comprehensive definition of the term "testimonial." Davis, 126 S.Ct. at 2273 (citation omitted); Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

But we are not without guidance. The prototypical case of testimonial evidence is that created by the civil-law tradition of a judicial officer examining a witness in private and then later reporting the results in court. Crawford, 541 U.S. at 43-44, 124 S.Ct. 1354. This method was contrary to the common-law tradition of "live testimony in court subject to adversarial testing," but, nonetheless, it was utilized at times by English courts. Id. An infamous example of the use of this type of...