United States v. Proano, 17-3466

• Decision Date: 07 January 2019
• Docket Number: No. 17-3466,17-3466
• Citation: 912 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marco PROANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

912 F.3d 431

UNITED STATES of America, Plaintiff-Appellee,

v.Marco PROANO, Defendant-Appellant.

No. 17-3466

United States Court of Appeals, Seventh Circuit.

Argued October 23, 2018

Decided January 7, 2019

Georgia N. Alexakis, Nani Gilkerson, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff - Appellee.

Elizabeth Reddington Fleming, Daniel Q. Herbert, Attorneys, LAW OFFICES OF DANIEL Q. HERBERT AND ASSOCIATES, Chicago, IL, for Defendant - Appellant.

Before Kanne, Hamilton, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

On-duty officer Marco Proano fired sixteen shots at a moving sedan filled with teenagers until the car idled against a light pole. He hit two passengers. The government charged Proano with two counts of willful deprivation of constitutional rights, one for each injured passenger, and a jury convicted on both counts. 18 U.S.C. § 242. Proano appeals, claiming both pretrial and trial errors. We affirm.

I. Background

A. The Shooting

Around 5:00 p.m. on December 22, 2013, two Chicago Police Department (CPD) officers, Ken Flaherty and Jonathan Morlock, stopped a gray Toyota Avalon on Chicago’s southside. The Toyota had just sped out of an alley. The driver fled on foot, leaving one passenger in the front seat and four or five (as far as Flaherty could tell) in the backseat. Morlock pursued the driver; Flaherty stayed with the Toyota. Before fleeing, the driver did not, apparently, put the car in park, and it rolled toward Flaherty and his squad car. The Toyota wedged itself between Flaherty’s squad car and another car parked on the street.

Jaquon Grant had been in the passenger seat. He too tried to escape as the car rolled forward, but his legs got stuck between Flaherty’s squad car and the Toyota. Grant tried to break free, and Flaherty assured him that when backup arrived Flaherty would assist him. Flaherty shouted commands to the other passengers—"stay still," "quit moving"—but they did not obey. One passenger, thirteen-year-old Kevon Brown, attempted to flee, but stopped while hanging out of an open backseat window, with his head above the roof. Flaherty dispatched for backup.

Moments later, Proano and his partner, Guy Habiak, arrived in their squad car. Proano exited the car, with his weapon in one hand, cocked, and aimed at the Toyota. Seconds later, Delquantis Bates, who had been in the back seat of the Toyota, reached over the center console and pressed his hand on the gas pedal. The car, still wedged, revved but did not move. Bates then put the car in reverse and pressed the pedal again. The Toyota jolted free and began to reverse. No one was in its path.

As the car retreated, three things happened: a metal BB gun fell to the ground from the Toyota, Grant freed himself, and Proano began shooting at the Toyota. Flaherty quickly apprehended Grant. Habiak picked up the gun and handed it to Flaherty, saying "Gun. Here’s the gun. Here’s the gun." And Proano continued to shoot at the Toyota as it stopped, pivoted, and rolled forward into a light pole. Ten of Proano’s sixteen bullets entered the Toyota. One bullet hit Bates’s shoulder, while others grazed his face. Two bullets hit another passenger, David Hemmans, in his leg and foot. No other officer fired his weapon.

After the shooting, Proano completed two Tactical Response Reports, forms upon which the CPD relies to document use-of-force incidents. On both forms, Proano admitted to firing his weapon sixteen times. He indicated that he did so because an "assailant" presented an "imminent threat of battery" and so he "use[d] force likely to cause death or great bodily harm." The assailant’s weapon, according to Proano’s reports, was an "automobile." Proano did not identify the BB gun as a contributing factor in his decision to shoot in the reports. Still on the scene, however, Proano informed CPD detective Stanley Kalicki that he heard one of the other on-site officers identify a gun. Proano also told Kalicki that he fired his weapon because he feared for Brown, who, according to Proano, "was being dragged" by the Toyota.

Months later, Proano discussed the shooting with the Independent Police Review Authority (IPRA)—a now-defunct body, which at the time investigated allegations of police misconduct.¹ In March 2015, IPRA Investigator Dennis Prieto met with FBI agents to discuss the shooting. No one involved in that meeting believed that they discussed Proano’s statements to IPRA. The FBI agents received material from Prieto, including documents reflecting Proano’s statements to IPRA investigators. The FBI agents then passed those documents to the government’s "filter team" for review.

B. The Prosecution

On September 15, 2016, a grand jury returned a two-count indictment against Proano for willfully depriving Bates and Hemmans of their constitutional rights—namely, their Fourth Amendment right to be free from unreasonable force—in violation of 18 U.S.C. § 242.

Proano filed a motion to dismiss the indictment. He argued that the FBI agents’ meeting with Investigator Prieto led to the disclosure of statements protected by Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (a decision we explain below), and that the disclosure tainted the prosecution against him. The district court held a hearing, in which Prieto and the FBI agents, Larissa Camacho and Eugene Jackson, testified. The district court then denied Proano’s motion on two independent grounds. First, it found no evidence of "seepage or taint" of Proano’s Garrity -protected statements in the prosecution. Second, the district court found "legitimate independent sources" for any information the government could have gleaned from Proano’s Garrity -protected statements, assuming the government had seen them. The case proceeded to trial.

Before trial, Proano moved in limine to exclude evidence relating to his training on CPD policies and procedures. He submitted that such evidence was irrelevant and that the government’s witnesses—Sergeant Larry Snelling and officer Vincent Jamison, neither of whom recalled training Proano—lacked sufficient personal knowledge to testify regarding the training Proano received. The government filed a reciprocal motion in limine, asking the court to exclude evidence of Proano’s training on when use of force was appropriate under state law. The district court resolved the relevance of both pieces of evidence with the same stroke—both parties could use their respective training-related evidence either to help prove or disprove that Proano acted willfully. Proano, specifically, could argue that his actions comported with his state-law training, and so he thought them reasonable; the government, meanwhile, could argue that Proano’s actions violated his CPD training, which could be relevant to his state of mind. The district court reserved ruling on the foundational question. It also deferred on resolving questions about the relevance of certain training-related evidence, such as whether Proano was trained not to fire into a crowd or buildings.

Trial began on August 21, 2017, and lasted six days. Among other government witnesses, Flaherty, Bates, and Brown described what occurred the night of the shooting; Kalicki explained Proano’s statements after the shooting; and CPD Sergeant Timothy Moore detailed Proano’s post-shooting reports. Snelling and Jamison also testified.

Snelling described the CPD’s use-of-force policies, which he taught at the academy. He could not testify with certainty that he taught Proano. He was, however, familiar with the training that recruits received when Proano was a recruit at the academy, because trainers used a "common curriculum" and often sat in on each other’s classes to ensure consistent messaging. Regarding the CPD’s training, Snelling testified that use of deadly force is appropriate only when an assailant is likely to cause death or serious physical injury. Snelling testified that recruits learn not to shoot into buildings, windows, or openings without clear visibility, and they learn not to shoot into crowds. Snelling also testified that recruits learn not to fire at a moving vehicle unless doing so is necessary to protect the life of another.

Jamison testified about firearms training, which he oversaw at the academy. He too could not recall whether he personally trained Proano, but Jamison stated that every firearms instructor at the academy works from the same preapproved lesson plans. Jamison testified that recruits learn to hold a weapon with two hands absent necessary circumstances, and they learn never to point a gun merely as a show of force. CPD firearms instructors also taught recruits to stop and "assess" whether a threat is ongoing after firing a few shots, though he also testified that recruits learn to shoot "to eliminate the threat."

In addition to this testimony, the government introduced video footage of the shooting. The footage, taken from Proano’s dashcam, showed the shooting unobstructed and in its entirety. The jury saw real-time and slow-motion versions of the footage.

At the close of evidence, the parties discussed and debated jury instructions. Only one instruction-related debate is relevant here: Proano proposed a (lengthy) instruction on "willfulness," the necessary mens rea for § 242, but the district court rejected it as redundant and confusing. The district court, instead, instructed the jury on willfulness using an instruction it crafted with the parties’ input.

After closing arguments and deliberation, the jury convicted Proano on both counts. The district court later denied Proano’s posttrial motion, ruling in part that the court had properly admitted Snelling’s and Jamison’s testimony and that the government had laid an adequate foundation for their respective testimony. The district court then sentenced Proano to sixty months in prison. This appeal followed.

II. Discussion

Proano challenges four issues on appeal: (1) the denial of his Garrity motion; (2) the admission of...