United States v. Boyce

• Decision Date: 13 February 2014
• Docket Number: No. 13–1087.,13–1087.
• Citation: 742 F.3d 792
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Darnell BOYCE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

742 F.3d 792

UNITED STATES of America, Plaintiff–Appellee,

v.Darnell BOYCE, Defendant–Appellant.

No. 13–1087.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 3, 2013.

Decided Feb. 13, 2014.

Michelle Marie Petersen, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Gary Ravitz, Attorney, Ravitz & Palles, Chicago, IL, for Defendant–Appellant.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

After a foot chase during which an officer said he saw Darnell Boyce throw a gun into a yard, officers recovered the gun from the area and also found ammunition for the gun in Boyce's pocket. A jury convicted Boyce of being a felon in possession of a firearm and ammunition. He maintains that he could lawfully possess a handgun on the premise that his civil rights had been restored. In light of our precedent, we disagree and conclude that a letter to Boyce restoring his civil rights did not do so for all his prior felonies. Boyce also challenges the admission at trial of statements of Sarah Portis, the mother of four of his children, made during a 911 call, including that Boyce had a gun. We find no abuse of discretion in the district court's admission of the statements under the excited utterance exception to the hearsay rule because they were made while under the stress of a domestic battery and related to it. We affirm the district court's judgment.

I. BACKGROUND

Sarah Portis called 911 at around 7:45 p.m. on March 27, 2010, asking that police come to her residence because her child's father had just hit her and was “going crazy for no reason.” The 911 operator asked, “Any weapons involved?” to which Portis responded, “Yes.” The operator asked what kind, and Portis said, “A gun.” The operator said, “He has a gun?”, then “Hello?”, and Portis responded, “I, I think so. ‘Cause he just, he just.” After the operator said, “Come on,” Portis responded, “Yes!” twice. The operator again inquired, “Did you see one?” and Portis replied, “Yes!” The operator then cautioned Portis that if she wasn't telling the truth, she could be taken to jail. Portis responded, “I'm positive.” After giving a description of what Boyce was wearing, the operator asked where he was at the moment. Portis responded that she “just ran upstairs to [her] neighbor's house” and didn't know whether Boyce had left her house yet.

Within minutes, Officers Robert Cummings and Eugene Solomon responded to the 911 call. After determining Boyce was no longer in the apartment, they interviewed Portis for about five to ten minutes. Officer Solomon described Portis as “appear[ing] emotional as if she just had an argument, perhaps a fight, someone who was just running.” The officers then went to their car to complete a case report for domestic battery. While they were sitting in their squad car, the officers saw that Boyce had returned to the outside of Portis's residence and was calling out her name. Officer Solomon asked Boyce to come over, but Boyce ran away instead, and Officer Cummings ran after him. During the chase, Officer Cummings saw Boyce reach toward the midsection of his body, retrieve a nickel-plated handgun, and toss it over a garage into a yard. The officer caught up with Boyce soon afterward and detained him. Officers found a silver .357 Magnum handgun in the area where Officer Cummings saw Boyce throw a gun. Officers also found three .357 bullets in Boyce's right front pants pocket after they arrested him.

Boyce was charged with one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1). While he was in jail awaiting trial, Boyce sent Portis a letter requesting that she recant her statement that he had a gun. He even provided the language he wanted her to use in a letter he wanted her to write to him:

It seems like my whole life is going down since I called the police and I lied on you. I didn't know that those police was going to actually put a gun on you. Like I said before, I am so sorry for calling them and lying about you had a gun and hit me, but you just misunderstand how I felt when I saw you and the other girl hugging and kissing.... So the only way I thought of paying you back was to call the police and get you locked up once again. I'm so sorry.

Boyce and Portis also spoke by telephone while he was in jail, and Boyce said “our story” to which they would stick was that Portis made the whole thing up because she was mad he had been talking to another woman.

Portis did not testify at trial, but the government played a recording of her 911 call for the jury. In arguing that Boyce possessed a firearm on March 27, 2010, the government pointed to Officer Cummings's testimony that he saw Portis throw a gun, other officers' testimony recounting the recovery of the gun in the area and ammunition matching the gun in Boyce's pocket, and Portis's statement on the 911 call that Boyce had a gun. A jury found Boyce guilty on both charged counts. The district court concluded that Boyce had three prior violent felonies or serious drug offenses that mandated a minimum term of fifteen years' imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). The court sentenced him to 210 months' imprisonment, two and a half years over the mandatory minimum sentence. Boyce appeals.

II. ANALYSIS

A. No Restoration of Civil Rights

Before we consider the admission of Portis's statements in the 911 call, we address Boyce's argument that the indictment against him should have been dismissed. Boyce contends that the district court should have granted his motion to dismiss the indictment for lack of a qualifying predicate felony conviction. We review that decision de novo, and we review the district court's factual findings for clear error. United States v. Greve, 490 F.3d 566, 570 (7th Cir.2007).

Boyce was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). A prior felony is not a predicate offense for a § 922(g)(1) violation if the defendant “has been pardoned or has had civil rights restored” unless the “restoration of civil rights expressly provides” that the person may not possess firearms. 18 U.S.C. § 921(a)(20). Boyce maintains his civil rights had been restored regarding his prior felony convictions before he possessed the gun and ammunition in this case, and, therefore, that he did not have a predicate felony for purposes of § 922(g)(1).

Boyce was convicted of five state felonies in 1991 and received concurrent prison terms. He was released from prison in 1993 and placed on supervised release. While on supervised release, he was arrested and convicted of unlawful use of a weapon (“UUW”). Because of that conviction, his supervised release on the prior 1991 convictions was revoked, and he returned to prison. The district court found that his sentence on the parole revocation ended on December 23, 1995. Boyce remained in prison, however, because he still had more time to serve on the UUW charge. Boyce completed his prison term on the UUW charge on February 6, 1996 and began a one-year period of supervised release on that charge. He completed that term on February 6, 1997. He then received a form letter informing him of the restoration of his right to vote and to hold state office. Specifically, the letter stated:

We are pleased to inform you of the restoration of your right to vote and to hold offices created under the constitution of the state of Illinois. You also have the right to restoration of licenses granted to you under the authority of the State of Illinois if such license was revoked solely as a result of your conviction, unless the licensing authority determined that such restoration would not be in the public interest.

This form letter that Boyce received was the same form letter we have already held constitutes a restoration of civil rights for purposes of § 921(a)(20). See Buchmeier v. United States, 581 F.3d 561 (7th Cir.2009) (en banc).

That does not end the analysis, however, as the pertinent question is whether the letter restored Boyce's civil rights on all his previous felonies or just on the UUW felony. Unfortunately for Boyce, we have considered and rejected the argument that the letter restored civil rights on all his previous felonies. We said in United States v. Burnett, 641 F.3d 894 (7th Cir.2011), that a letter telling a former prisoner that his civil rights have been restored applies conviction-by-conviction. Id. at 896. We concluded in that case that where a defendant finished his sentence for a parole revocation in 1994 but remained in prison on a murder conviction until 1999, the form letter he received after his release in 1999—the same form letter Boyce received—only restored his civil rights on the murder conviction. Id. Burnett reached that conclusion despite recognizing that “[i]t may well be that Illinois refrained from sending Burnett letters in 1994 about his [other] convictions because the ongoing custody for the murder conviction meant he could not vote or hold public office.” Id. at 897. Boyce does not ask us to overturn Burnett. He points out that the defendant in Burnett spent more time in prison for the new offense after the end of his parole revocation sentence than Boyce, but we do not find that distinction material here.

Burnett did suggest that a person who received a restoration letter after serving multiple concurrent sentences that expired on the same day might have his civil rights restored on all convictions. Id. at 896. In light of that, Boyce argues that the district court erred when it relied on an affidavit from the Chief Records Officer for the Illinois Department of Corrections that calculated Boyce's discharge revocation date as December 23, 1995. He contends that his sentence for his five 1991 convictions may have ended as early as mid-September 1995...