United States v. Common

Decision Date04 April 2016
Docket NumberNo. 14–3480.,14–3480.
Citation818 F.3d 323
Parties UNITED STATES of America, Plaintiff–Appellee, v. Adolph COMMON, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Matthew Hiller, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.

Carol A. Brook, Candace R. Jackson, Office of the Federal Defender Program, Chicago, IL, for DefendantAppellant.

Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.*


, Circuit Judge.

In 2014, Adolph Common was convicted of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1)

. The arresting officers claim that they saw a gun fall out of Common's pants and that Common confessed to possessing the gun. Common denies having the gun and making the confession. He alleges that the officers planted the gun on him and failed to provide Miranda warnings. The district court denied Common's motion to suppress his alleged confession. After two mistrials, a jury convicted Common. Common appeals, challenging the denial of his motion to suppress, the admission of the testimony of a fingerprint examiner, and the denial of his motion for a new trial based on claims of prosecutorial misconduct. We affirm.

I. Background
A. Factual Background

On June 24, 2011, Chicago Police Officers Thomas Hanrahan, John Murphy, James McNichols, and Patrick Kelly were patrolling a high-crime area of the city. The officers saw Common walking on the street. His left hand was clenched into a fist, which made the officers suspect he was concealing something. The officers allege that they also noticed a bulge near Common's waistband, which made them suspect he was concealing a gun.

Hanrahan called out to Common, who dropped several small plastic bags of crack cocaine from his left hand onto the ground. Common began to run away, and Murphy, Kelly, and McNichols chased him. Common ran toward his residence, tripping on his porch stairs. From this point forward, the government and Common allege different versions of the facts.

1. Government's Case–in–Chief

The government alleges that a gun fell from Common's pants when he tripped. Murphy and Kelly handcuffed Common, while McNichols recovered the gun. The government contends that Common was cooperative, did not ask what he did wrong, and did not express surprise about his arrest. The officers did not see or speak with anyone else during the arrest. Murphy placed Common in the police car and gave him Miranda warnings. Hanrahan says he witnessed the warnings. They left the scene ten minutes after first spotting Common.

Upon arriving at the police station, consistent with their regular practice, Hanrahan and Murphy performed a pat-down search and handcuffed Common. The government alleges that Murphy again advised Common of his Miranda rights, and Hanrahan again witnessed the warnings.1

The government contends that Murphy, in the presence of Hanrahan, asked Common why he had a gun. Common responded, "I'm making sure nothing happens to me out there. They're shooting." The officers did not ask Common to write, sign, or review this alleged confession. Murphy and Hanrahan then went to prepare arrest reports. Hanrahan wrote that Common made a statement to Murphy about having the gun for protection. Hanrahan did not write that he witnessed the Miranda warnings or that he was present when Hanrahan confessed to Murphy.

2. Common's Defense

Common admitted to possessing a personal use amount of cocaine but denied having a gun. According to Common, after the officers handcuffed him, one of them said, "You know what we want" and "Give us a gun or you'll get a gun." Common interpreted this to mean that the officers would falsely charge him with possessing a gun if he did not assist them in finding an illegally possessed gun.

Common alleges that six witnesses were present outside of his residence when the officers arrived and arrested him: Common's mother, stepfather, brother, girlfriend, neighbor, and a friend of Common's brother. At trial, each witness testified that he or she spoke with, or saw another witness speak with, the officers. Several witnesses testified that Common's mother asked the officers why they were arresting her son. The officers allegedly responded that the arrest was for drugs and did not mention a gun.

Common contends that when the officers were walking him to the door of the police station, one of the officers said, "We forgot to search the car." The officer returned to the car and said, "Oh shit. We got a 143." The officer asked Common what he had in the car. Common told him, "I ain't have nothing in the car.... What you found is what you found."

In the station, Common inquired about the charge. He alleges that an officer responded that the charge had not yet been decided. Common claims that he did not learn that he was being charged with unlawful possession of a firearm until he was transported to jail and that he did not know about the alleged confession until his public defender told him about it.

B. Procedural Background

On November 15, 2012, a federal grand jury indicted Common for unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1)

. On August 8, 2013, Common filed a motion to suppress his alleged confession, arguing that the officers failed to Mirandize him. However, Common neither denied possessing a gun nor accused the officers of other misconduct.

Common testified at a suppression hearing on November 5. For the first time, Common denied having a gun and making the confession. He alleged that six witnesses were present for the arrest but did not call them to testify. The government called Hanrahan and Murphy, who testified that they Mirandized Common twice and that Common admitted to having the gun for protection. They denied that any officers threatened Common or planted evidence. The district court denied the motion to suppress, finding that Hanrahan and Murphy's testimony was credible while Common's was not.

Common's first trial commenced on November 18, 2013. Hanrahan, Murphy, and McNichols testified on behalf of the government. Chicago Police Officer and Evidence Technician Matthew Savage testified for the government about his examination of the gun for fingerprints and the infrequency with which prints are recovered from firearms. Common objected on relevance grounds to the statistical evidence regarding the frequency of recovering prints from firearms. The district court overruled the objection. Common called the six defense witnesses. The jury could not reach a unanimous verdict, and the court declared a mistrial.

Prior to the second trial, Common filed a motion to reconsider his motion to suppress his alleged confession. Common argued that his story was now corroborated by the testimony of the six witnesses he presented at the first trial. The district court denied the motion. Common also filed a motion in limine to exclude any reference by Savage "to the statistical percentage of guns examined for latent fingerprints in which latent fingerprints are found." After a hearing, the court denied the motion. On February 4, 2014, the second trial began. The parties called the same witnesses as in the first trial. The jury could not reach a unanimous verdict, resulting in another mistrial.

Before the third trial, the district court ordered that "all prior motions by either side will stand as will the same previous rulings." The third trial began on April 7, 2014 with the same witnesses. Hanrahan, Murphy, and McNichols described Common's arrest, the recovery of the firearm and drugs, and Common's confession. Savage testified about his credentials as an evidence technician, fingerprint-recovery generally, and his examination of the firearm in this case. He stated that he did not recover any fingerprints from the gun and explained why it is difficult to recover fingerprints from firearms. Savage testified that it was "extremely uncommon" to recover prints from firearms and that he had only recovered prints from 30 firearms after examining more than 800 throughout career. The jury returned a guilty verdict.

On June 13, Common filed a motion for acquittal, which the district court denied. Common also filed a motion for a new trial, based in part on his argument that the government committed prosecutorial misconduct by distorting the burden of proof and misstating the evidence during closing arguments. After reviewing the transcript of closing arguments, the court denied the motion for a new trial.

On October 28, the district court found that Common qualified for sentencing as an armed career criminal pursuant to 18 U.S.C. § 924(e)

. It sentenced Common to the mandatory minimum of 180 months in prison, followed by a three-year term of supervised release.

II. Discussion

On appeal, Common argues that the district court erred by denying his motion to suppress his alleged confession, admitting the testimony of the government's fingerprint technician, and denying his motion for a new trial based on claims of prosecutorial misconduct.2 We address each argument in turn.

A. Motion to Suppress

Common argues that the district court should have suppressed his alleged confession because the officers did not provide Miranda warnings. In reviewing the denial of a motion to suppress, we review factual findings for clear error, with special deference to the district court's credibility determinations. United States v. Jones, 614 F.3d 423, 427 (7th Cir.2010)

. We will not disturb the district court's credibility determinations unless they are "completely without foundation." United States v. Huebner, 356 F.3d 807, 812 (7th Cir.2004) (citation and internal quotation marks omitted).

The district court found the officers' testimony that they Mirandized Common to be credible. Common argues that Hanrahan's testimony that he witnessed Murphy Mirandize Common should have been discredited because Hanrahan did not record this in the police reports. Common also points out that...

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