United States v. Shaffers

• Decision Date: 05 January 2022
• Docket Number: No. 21-1134,21-1134
• Citation: 22 F.4th 655
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramone SHAFFERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

22 F.4th 655

UNITED STATES of America, Plaintiff-Appellee,

v.Ramone SHAFFERS, Defendant-Appellant.

No. 21-1134

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2021

Decided January 5, 2022

Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Alexandra Kyle Benton, Attorney, Kyle Hosmer, Attorney, Faegre Drinker Biddle & Reath LLP, Denver, CO, Brian James Paul, Attorney, Faegre Drinker Biddle & Reath LLP, Indianapolis, IN, Jeffrey P. Justman, Attorney, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant-Appellant.

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

Hamilton, Circuit Judge.

Ramone Shaffers was charged with possession of a firearm by a convicted felon after a gun was recovered from his car during an encounter with Chicago police. At his first trial, the jury deadlocked and the district court declared a mistrial. Shaffers was then tried again, with an obstruction of justice count added based on his attempts to influence witness testimony before the first trial. He was convicted on both counts.

Shaffers now appeals his felon-in-possession conviction on four separate grounds. He argues that the gun should have been suppressed; that his Confrontation Clause rights were violated by admitting a witness's grand jury testimony; that the evidence of possession was insufficient to support his conviction; and that his prior aggravated assault conviction was improperly considered a "crime of violence" at sentencing. We reject all four challenges.

I. Motion to Suppress

Shaffers first argues that the gun recovered from his car should have been suppressed as the product of an unlawful stop. On that issue, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Wood , 16 F.4th 529, 532–33 (7th Cir. 2021).

A. Factual and Procedural Background

On the night of October 15, 2016, Shaffers attended a party in Chicago. He left around midnight with three people: Talieta Fulton, Cornell Westberry, and Shirley Butler. They all got into his car—with Shaffers in the driver's seat and Fulton in the passenger's seat—and began smoking cigarettes and listening to music while parked.

Meanwhile, Chicago Police Officers Jason Streeper and Brendan Bruno were patrolling nearby in an unmarked police car. As they drove down an alley, they heard loud music coming from Shaffers' car and smelled marijuana. They stopped directly behind the car, blocking it from pulling out. The officers then approached the car, identified themselves, and instructed the occupants to put their hands in the air. Officer Streeper had his gun drawn. He testified that Shaffers initially failed to comply with his directions and instead was "making furtive movements with his hands below the [driver's] seat." Shaffers eventually put his hands on the steering wheel, but he then fled before the officers could detain him. While Officer Bruno unsuccessfully gave chase, Officer Streeper recovered a gun from the floorboard between the driver's seat and the console. Several months later, Shaffers was taken into custody when he appeared in state court for a traffic infraction, and he was eventually charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Shaffers filed a motion to suppress the gun before his first trial on the felon-in-possession charge. After holding an evidentiary hearing, the district court concluded that the officers' initial approach was a seizure because Shaffers could not move his car and a reasonable person would not have felt free to leave. The court also held, however, that the seizure was permissible under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the court's view, the officers had reasonable suspicion for a Terry stop based on the combination of (1) the car's location in an alley in a high-crime area, playing loud music in violation of a local noise ordinance; (2) the smell of marijuana around the car; and (3) Shaffers' furtive movements and failure to immediately raise his hands. The court therefore denied Shaffers' motion to suppress.

B. Analysis

On appeal, the government no longer disputes that the officers' actions constituted a seizure. The question is whether the stop violated the Fourth Amendment. We agree with the district court's conclusion that it did not.¹

The Fourth Amendment protects against "unreasonable searches and seizures." U.S. Const. amend. IV. Accordingly, an officer conducting an investigatory stop must have "reasonable suspicion that ‘criminal activity may be afoot.’ "

United States v. Watson , 900 F.3d 892, 894 (7th Cir. 2018), quoting Terry , 392 U.S. at 30, 88 S.Ct. 1868. Reasonable suspicion requires "more than a hunch but less than probable cause." United States v. Wilson , 963 F.3d 701, 703 (7th Cir. 2020). Our analysis focuses on "the totality of the circumstances" and asks whether the officer had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Navarette v. California , 572 U.S. 393, 396–97, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), quoting United States v. Cortez , 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

Applying that standard here, we conclude that Officers Streeper and Bruno had a reasonable suspicion to justify the stop. At the moment they blocked in Shaffers' car, the officers had a reasonable, articulable suspicion that the occupants were violating a Chicago noise ordinance. As relevant here, the ordinance prohibits using a radio "to generate any sound, for the purpose of communication or entertainment, that is louder than average conversational level at a distance of 100 feet or more" between 10:00 p.m. and 8:00 a.m. Chi. Mun. Code § 8-32-070(b). At the suppression hearing, Officer Streeper testified that he heard "loud music" with "a lot of bass" coming from the car. Officer Bruno agreed, testifying that the music "was loud enough that we heard it on approach." Even Westberry and Butler testified that the music was loud. Based on these facts, the officers had an articulable, objective basis for believing that the occupants of Shaffers' car were violating the noise ordinance.

To compound the officers' suspicion, they also smelled marijuana as they drove down the alley. Contrary to Shaffers' assertion, the officers did not have merely a "generalized suspicion that someone in the alley possessed cannabis." Both officers specifically testified that they smelled marijuana coming from the vicinity of Shaffers' car. In addition, Butler testified that she and Westberry had smoked marijuana on a porch before leaving the party, that she had the marijuana joint in her pocket when she got into the car, and that she then threw the joint out the window. At the time, Illinois prohibited even recreational use or possession of marijuana. The officers therefore had reason to believe that the occupants of the car were violating Illinois law. Cf. United States v. Franklin , 547 F.3d 726, 733 (7th Cir. 2008) ("A police officer who smells marijuana coming from a car has probable cause to search that car.").

Based on the totality of the circumstances—including the combination of the loud music and the smell of marijuana— the officers had a sufficient basis to block Shaffers' car and investigate.²

II. Confrontation Clause

Second, Shaffers challenges his conviction on the ground that the admission of Talieta Fulton's grand jury testimony as substantive evidence violated the Confrontation Clause of the Sixth Amendment. We review that question de novo. United States v. Norwood , 982 F.3d 1032, 1042 (7th Cir. 2020).

A. Factual and Procedural Background

As noted above, Fulton was in the passenger's seat of Shaffers' car on the night of October 15, 2016. After Shaffers fled and Officer Streeper discovered the gun, Fulton and the other two passengers were arrested and taken to the police station. They were eventually released without being charged.

In May 2017, Fulton appeared before a federal grand jury. She testified that she had not known there was a gun in the car that night, that she had seen the police remove the gun from under the driver's seat, and that the gun was not hers. Shaffers was then arrested and charged in June 2017.

Almost two years later, during Shaffers' first trial, Fulton testified that she had no memory of the events of October 15. She also said she did not recall her testimony before the grand jury, although she vaguely remembered the government's flying her to Chicago. Over the defense's objection, the district court allowed the government to introduce Fulton's grand jury testimony as a prior inconsistent statement under Federal Rule of Evidence 801(d)(1)(A). Before the testimony was read, Shaffers' counsel cross-examined Fulton, asking whether her lack of memory was caused by a medical condition or a fear of prosecution. He also asked about her prior criminal history. An ATF agent then read Fulton's grand jury testimony aloud.

A similar process played out in Shaffers' second trial. Fulton continued to disclaim any memory of the events in question or of testifying before the grand jury. Over a defense objection, the district court again permitted her grand jury testimony to be used as substantive evidence. This time, Fulton read the testimony herself. Shaffers' counsel then cross-examined her. He inquired into her lack of memory and asked if it was because she had been drinking on the night of her arrest. Counsel also questioned whether Fulton was "claiming not to remember anything" because she feared prosecution. And he asked her to confirm that the government was paying for her airline ticket and hotel during the trial, which she did. During closing argument, Shaffers' counsel emphasized several times that Fulton "chose not to remember" the relevant events.

B. Analysis

Shaffers argues that the district court's decision to...