United States v. Pulliam
| Decision Date | 03 September 2020 |
| Docket Number | No. 19-2162,19-2162 |
| Citation | 973 F.3d 775 |
| Parties | UNITED STATES of America, Plaintiff-Appellee v. Roland PULLIAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Robert C. Collins, III, Johanna M. Spellman, Attorneys, Latham & Watkins LLP, Chicago, IL, for Defendant-Appellant.
Before Sykes, Chief Judge, and Ripple and Kanne, Circuit Judges.
Roland Pulliam was arrested after fleeing from two Chicago police officers. During the chase, both officers saw a gun in Pulliam's hand. Pulliam had previously been convicted of multiple felonies, making it a federal crime for him to possess a gun. The government charged him with possessing a firearm as a felon, 18 U.S.C. § 922(g)(1) ; Pulliam was convicted after a jury trial.
After Pulliam was sentenced, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which clarified the elements of a § 922(g) conviction. Now, in addition to proving that the defendant knew he possessed a firearm, the government must also prove the defendant belonged to "the relevant category of persons barred from possessing a firearm." Id. at 2200. This knowledge-of-status element was not mentioned in the jury instructions at Pulliam's trial.
Pulliam now argues that the erroneous jury instructions and three evidentiary errors require the reversal of his conviction. But none of these alleged errors call for the reversal of Pulliam's conviction, so we affirm.
In July 2015, Chicago Police Department Officers Victor Alcazar and Jason Guziec responded to a dispatch call that four black men were selling drugs near a fence a few blocks from the officers’ location. Dispatch received this information from two anonymous 911 callers: the first caller reported seeing two drug transactions, while the other observed the men selling "something." As the officers drove to the reported sale, they noticed four black men standing together near a fence in a McDonald's parking lot. Officer Guziec parked the car and both officers approached the men to conduct a field interview.
The four men dispersed as the officers approached. One of the men—later identified as Roland Pulliam, an employee of a nearby auto body shop—walked between a parked van and the fence. When Pulliam emerged from behind the van, both officers saw a chrome gun in his hand. Officer Guziec yelled "gun" and drew his weapon. Pulliam then ran away from the officers and into a nearby alley. A short way down the alley, Pulliam threw the gun, raised his hands, and allowed Officer Guziec to place him in handcuffs. Officer Guziec escorted Pulliam back to the squad car. Officer Alcazar, having seen where Pulliam threw the gun, went to retrieve it. He found the gun and an ejected magazine near the McDonald's dumpster.
After Pulliam's arrest, Officer Alcazar and other officers searched the parking lot for contraband. The officers found no guns (other than the one discarded by Pulliam) or narcotics in the area. Officer Guziec brought Pulliam to the station and searched him. Pulliam was carrying $408 in cash.
Almost one year later, a grand jury charged Pulliam with possessing a firearm as a felon, 18 U.S.C. § 922(g). Before trial, the government filed a motion in limine seeking a ruling on the admissibility of testimony related to the 911 calls that were relayed by dispatchers to Officers Alcazar and Guziec. Pulliam filed a motion in limine of his own, asking the district court to bar the officers from testifying about the $408 Pulliam possessed. Additionally, Pulliam informed the district court that he planned to elicit testimony from the officers that, during an interview, Pulliam responded to a question by saying "what gun."
The district court prevented the government from presenting an audio recording of the 911 calls but allowed the officers to testify "as to what the dispatcher told them." The district court also allowed the government to elicit testimony about the $408 found on Pulliam. Finally, the district court held that Pulliam could not elicit testimony from the officers about his "what gun" remark.
At trial, Officers Alcazar and Guziec testified about receiving the dispatch call, arriving at the parking lot, and the chase and investigation that ensued. The government also called Alison Rees—a fingerprint specialist for the Bureau of Alcohol, Tobacco, Firearms and Explosives—to testify that no fingerprints were recovered from the gun Officer Alcazar recovered.
Pulliam called his boss and the owner of K&M Auto, Marlon Reid, to testify that Pulliam was normally paid in cash on Fridays. In response, the government called a K&M Auto employee to testify that he personally was paid on Saturdays, not Fridays.
A jury found Pulliam guilty of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court sentenced Pulliam to 63 months’ imprisonment.
After Pulliam's trial and sentencing, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). Rehaif held that, for the government to secure a conviction under § 922(g), the government must prove that a defendant knew he belonged to a category of persons prohibited from possessing a firearm. Id. at 2200. The jury that found Pulliam guilty was not instructed about this knowledge-of-status element.
Pulliam raises four issues on appeal. First, Pulliam argues that the district court's jury instructions constitute a plain error in light of the Supreme Court's decision in Rehaif . His other arguments concern three evidentiary rulings that the district court affirmed in its order denying Pulliam a new trial.
At Pulliam's trial, the jury was instructed that the government had to prove three elements beyond a reasonable doubt to convict Pulliam of being a felon in possession of a firearm: "[F]irst, that the defendant knowingly possessed a firearm; second, at the time of the charged act [Pulliam] had previously been convicted of a crime punishable by a term of imprisonment of exceeding one year; and third, ... the firearm had been shipped or transported in interstate or foreign commerce."
The district court gave this instruction based on well-settled law at the time that § 922(g) "required the government to prove a defendant knowingly possessed a firearm ... but not that [the defendant] knew he belonged to one of the prohibited classes." United States v. Williams , 946 F.3d 968, 970 (7th Cir. 2020). Seven months after Pulliam's trial, the Supreme Court in Rehaif reached a different conclusion, holding that the government must show that "the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it." 139 S. Ct. at 2194.
Pulliam did not argue in the district court that the jury instructions were missing an element. Still, Pulliam believes the jury instructions constitute plain error, requiring a reversal of his conviction. See Fed. R. Crim. P. 52(b) ; United States v. Maez , 960 F.3d 949, 956 (7th Cir. 2020) ().
Plain-error review has four elements: (1) an error occurred, (2) that error is plain, and (3) the error affects the defendant's substantial rights. United States v. Olano , 507 U.S. 725, 732–34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). These three elements are limitations on appellate authority, id. at 734, 113 S.Ct. 1770 ; if these elements are satisfied, an appellate court may "then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ " Johnson v. United States , 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alteration in original) (some internal quotation marks omitted) (quoting Olano , 507 U.S. at 732, 113 S.Ct. 1770 ).
Pulliam argues that the district court's error affected his substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Importantly, he argues that—in assessing the third and fourth plain-error elements—we may only look at evidence actually presented to the jury. To do otherwise, Pulliam reasons, would contravene his Sixth Amendment right to have "each element of a crime be proved to the jury beyond a reasonable doubt." Alleyne v. United States , 570 U.S. 99, 104, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
At the time Pulliam made this argument, we had not yet addressed how plain-error review applies to pre- Rehaif § 922(g) convictions by jury verdict. See, e.g. , United States v. Dowthard , 948 F.3d 814, 817–18 (7th Cir. 2020) (); Williams , 946 F.3d at 971–72 (same). This question has since been resolved by our decision in United States v. Maez , 960 F.3d 949 (7th Cir. 2020).
In Maez , we established the scope of the record we review when applying the third and fourth elements of the plain-error test. In assessing the third element (substantial rights), we look only "to the trial record when a defendant has exercised his right to a trial." Id. at 961 ( that the Sixth Amendment "mandates this approach"). But in exercising our discretion under the fourth element, we may consider "a narrow category of highly reliable information outside the trial record[ ]" that includes "undisputed portions of [a defendant's] PSR[ ]." Id. at 963 ().
With the Maez framework in mind, we now turn to Pulliam's plain-error arguments. First, we agree with Pulliam and the government that there was...
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