Cross v. Ellis
| Decision Date | 17 September 2010 |
| Docket Number | Nos. 08-2512, 08-2443, 08-4055.,s. 08-2512, 08-2443, 08-4055. |
| Citation | 622 F.3d 784 |
| Parties | UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Bernard ELLIS, Defendant-Appellee/Cross-Appellant. United States of America, Plaintiff-Appellee, v. Bernard Ellis, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
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Debra Riggs Bonamici (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant/Cross-Appellee in Nos. 08-2512, 08-2443.
Patrick W. Blegen (argued), Attorney, Blegen & Garvey, Chicago, IL, for Defendant-Appellee/Cross-Appellant in Nos. 08-2512 and 08-2443.
Donald J. Schmid (argued), Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 08-4055.
David A. Wemhoff (argued), Attorney, Law Offices of David A. Wemhoff, South Bend, IN, for Defendant-Appellant in No. 08-4055.
Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.
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 firearms for him there. This illegal activity drew the attention 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 violation 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. Ellis appealed his conviction and sentence in the Indiana case, and the government appealed the district court's sentencing decision in the Illinois case. Ellis then cross-appealed in the Illinois case challenging the reasonableness of the sentence.
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 ... 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 sentencing issue common to both cases, we affirm in the Illinois case and reverse in the Indiana case. Ellis's conviction for felony intimidation under Indiana law does not have “as an element the ... threatened use of physical force against the person of another” and therefore 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.
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 possession 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 girlfriends of two of his nephews) money to purchase firearms. 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 question 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 Disciples, acknowledged he was an enforcer for the gang, and said that he always carried a gun for protection. He 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 Chicago'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 Chicago fireman who was dealing cocaine on the side. They arrested Ellis before this robbery took place.
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 conceded that two of his prior convictions qualified as violent felonies under the ACCA; the question was whether his 2003 Indiana conviction for felony intimidation was a violent felony. The district court “preliminarily” 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 suggested 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.
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 indictment-involved the same two guns as the Illinois prosecution.
For the protection of the witnesses in the Indiana case, the United States Attorney asked an Indiana magistrate judge to seal the indictment during the pendency of the Illinois case. The judge did so, and the indictment remained 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 double-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 concluded that Ellis's state-court conviction for felony intimidation 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...
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