United States v. Ellis, Bernard

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-2512 & 08-2443

U NITED S TATES OF A MERICA,

Plaintiff-Appellee/

Cross-Appellant,

v.

B ERNARD E LLIS,

Defendant-Appellant/

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 756—Wayne R. Andersen, Judge.

No. 08-4055

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

B ERNARD E LLIS,

Defendant Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:05 CR 131—Robert L. Miller, Jr., Judge.

A RGUED JUNE 3, 2009—D ECIDED S EPTEMBER 17, 2010

2 Nos. 08-2512, 08-2443 & 08-4055

Before E ASTERBROOK, Chief Judge, and R OVNER and

S YKES, Circuit Judges.

S YKES, Circuit Judge. Bernard Ellis was the chief enforcer

for a notorious Chicago street gang. He was also a felon,

so to arm himself and the members of his gang, Ellis

would travel to Indiana and enlist others to buy fire-

arms for him there. This illegal activity drew the atten-

tion of two separate United States Attorneys who

took turns prosecuting him. In the Northern District of

Illinois, Ellis was charged with and pleaded guilty to

two counts of possession of a firearm by a felon in viola-

tion of 18 U.S.C. § 922(g)(1). In the Northern District of

Indiana, he was charged with four counts of the same

offense—one of which involved the same guns as the

Illinois case—and was convicted by a jury on these and

five additional crimes stemming from various straw

purchases of firearms. He appealed in both cases. The

government cross-appealed in the Illinois case to chal-

lenge the district court’s sentencing decision.

We have consolidated the appeals for disposition

because they raise one common and several related

questions. The common question is whether Ellis’s

Indiana conviction for felony intimidation under section

35-45-2-1 of the Indiana Code qualifies as a “violent

felony” under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). The Illinois district judge answered

this question “no” and therefore declined to apply the

ACCA’s 15-year minimum sentence. The Indiana judge

disagreed and held that the intimidation conviction was

a “violent felony” because it “has as an element the . . .

Nos. 08-2512, 08-2443 & 08-4055 3

threatened use of physical force against the person of

another,” 18 U.S.C. § 924(e)(2)(B)(i). Ellis challenges this

determination and makes myriad other claims of error

in the Indiana case; he also contends his sentence in the

Illinois case is unreasonable. The government’s cross-

appeal in the Illinois case contests the district court’s

violent-felony determination and contends that the 90-

month sentence imposed in that case is too low.

We affirm in part and reverse in part. On the sen-

tencing issue common to both cases, we affirm in the

Illinois case and reverse in the Indiana case. Ellis’s con-

viction for felony intimidation under Indiana law

does not have “as an element the . . . threatened use of

physical force against the person of another” and there-

fore does not qualify as a violent felony under the

primary definition of the term. The government has not

contended that it qualifies under the residual clause of

the violent-felony definition, so Ellis is not subject to the

enhanced penalties applicable to armed career criminals

under the ACCA or the sentencing guidelines. We also

reverse, on double-jeopardy grounds, Ellis’s conviction

on one of the § 922(g)(1) counts in the Indiana case; it

was based on Ellis’s possession of the same guns as in

the Illinois case, and the government has not sufficiently

established a break in constructive possession. We reject

all remaining arguments and remand the Indiana case

for resentencing.

4 Nos. 08-2512, 08-2443 & 08-4055

I. Background

A. Ellis’s Crimes

Ellis was the chief enforcer for the Chicago Gangster

Disciples street gang and in that role obtained firearms

for himself and other members of this violent street

gang. Because he is a convicted felon, however, his pos-

session of firearms is illegal, so he regularly arranged for

others to make straw purchases of guns in Indiana. As

charged in the Indiana case, on at least five occasions

between 2003 and 2005, Ellis traveled to a gun store in

Osceola, Indiana, and gave his girlfriend (or the girl-

friends of two of his nephews) money to purchase fire-

arms. The straw purchasers submitted false ATF 1 forms

stating they were buying the guns for themselves. After

each purchase Ellis took possession of the guns, returned

to Chicago, and instructed the women to report them as

stolen.

The ATF office in Chicago was alerted to these illegal

transactions after the last one in June 2005. In late July

2005, federal agents went to Ellis’s mother’s house in

suburban Chicago, where Ellis was then living, to ques-

tion him about the straw purchases and other criminal

activity. The agents told Ellis he was suspected of

having guns, drugs, and money stored at the house.

Ellis admitted he was a member of the Gangster Dis-

ciples, acknowledged he was an enforcer for the gang,

and said that he always carried a gun for protection. He

1

“ATF” refers to the federal Bureau of Alcohol, Tobacco,

Firearms and Explosives.

Nos. 08-2512, 08-2443 & 08-4055 5

also admitted to orchestrating an illegal purchase of two

9-millimeter handguns in Indiana in June 2005. One of

these guns was in the house, and Ellis turned it over to

the agents. The other gun, he explained, was then in

the possession of a fellow gang member named “OG.” Ellis

offered to retrieve it for the agents. He then went to Chi-

cago’s South Side, retrieved the gun, and gave it to the

agents. In August 2005 federal agents caught Ellis on

audiotape giving a detailed and gruesome account of

acts of torture and extortion he committed while

shaking down Chicago drug dealers as an enforcer for

the Gangster Disciples. The agents also learned of a plot

by Ellis to carry out a home-invasion robbery of a Chi-

cago fireman who was dealing cocaine on the side. They

arrested Ellis before this robbery took place.

B. The Northern District of Illinois Prosecution

Prosecutors in the Northern District of Illinois charged

Ellis with two counts of illegal firearms possession by a

felon. See 18 U.S.C. § 922(g)(1). These counts centered

on Ellis’s possession of the two handguns from the

June 2005 straw purchase that he turned over to the

agents during the July 2005 interview. The government

sought application of the ACCA’s 15-year mandatory-

minimum sentence based on Ellis’s felony record, so

Ellis requested a pre-plea “advisory opinion” from the

district court on whether the ACCA applied. Ellis con-

ceded that two of his prior convictions qualified as

violent felonies under the ACCA; the question was

whether his 2003 Indiana conviction for felony intimida-

6 Nos. 08-2512, 08-2443 & 08-4055

tion was a violent felony. The district court “prelimi-

narily” ruled that this conviction was not a violent

felony because the state-court judge who sentenced Ellis

“did not really believe that Mr. Ellis engaged in or was

about to engage in any actual violent behavior.”

Ellis then entered guilty pleas to the two § 922(g)(1)

counts, and at sentencing the judge affirmatively held

that Ellis’s 2003 intimidation conviction was not a

violent felony under the ACCA. This meant that

neither the statutory 15-year minimum sentence nor the

enhancements in the sentencing guidelines applied;

without these adjustments, the advisory guidelines sug-

gested a sentence of 46 to 57 months. Based on Ellis’s

substantial and violent criminal history and the need to

protect the public, the judge imposed an above-guidelines

sentence of 90 months.

C. The Northern District of Indiana Prosecution

While Ellis was in federal custody in Illinois, a grand

jury in the Northern District of Indiana indicted him

on nine crimes: five counts of aiding and abetting the

making of a false statement intended to deceive a

licensed gun dealer in violation of 18 U.S.C. §§ 2, 922(a)(6),

and 924(a)(2); and four counts of possession of a firearm

by a felon in violation of 18 U.S.C. § 922(g)(1). One of

the firearms possession counts—Count 9 in the indict-

ment—involved the same two guns as the Illinois pros-

ecution.

For the protection of the witnesses in the Indiana case,

the United States Attorney asked an Indiana magistrate

Nos. 08-2512, 08-2443 & 08-4055 7

judge to seal the indictment during the pendency of the

Illinois case. The judge did so, and the indictment re-

mained sealed until shortly after Ellis was sentenced by

the Illinois district court. It was unsealed in May 2008,

more than two-and-a-half years after it was returned

and more than five years after the 2003 straw purchases

that formed the basis of five of the charges. So Ellis

moved to dismiss on Sixth Amendment speedy-trial and

statute-of-limitations grounds. The court denied these

motions. The case was tried to a jury, and at the close

of the evidence, Ellis moved to dismiss Count 9 on dou-

ble-jeopardy grounds. The district court denied this

motion, and Ellis was convicted on all counts.

At sentencing Ellis took the position that he could not

be sentenced as an armed career criminal because the

Illinois district court had already concluded his Indiana

intimidation conviction was not a violent felony. The

Indiana judge rejected this argument, noting that the

government had appealed the Illinois district court’s

decision and therefore it lacked the finality necessary to

trigger issue preclusion. On the merits the Indiana

judge disagreed with his Illinois counterpart and con-

cluded that Ellis’s state-court conviction for felony in-

timidation was indeed a violent felony because it has

“as an element . . . the threatened use of physical force

against the person of another,” as required by the first

part of the statutory definition of the term. See 18 U.S.C.

§ 924(e)(2)(B)(i).

This determination, in combination with other factors,

placed Ellis in Criminal History Category VI, and after

8 Nos. 08-2512, 08-2443 & 08-4055

applying several other applicable adjustments (notably

for possession of assault rifles and firearms with large-

capacity magazines), the district court arrived at an

advisory guidelines range of 360 months to life. The

judge imposed concurrent sentences of 480 months on

each of the felon-in-possession counts and concurrent

sentences of 120 months on each of the false-statement

counts.

II. Discussion

Ellis has appealed in both the Illinois and Indiana cases,

raising a host of challenges to his convictions and sen-

tences.2 In the Illinois case, he claims that his sentence

is unreasonable. In the Indiana case, he reiterates his

Sixth Amendment speedy-trial, statute-of-limitations, and

double-jeopardy arguments, and also claims the district

court committed several sentencing errors. As we have

noted, the government filed a cross-appeal in the Illinois

case, contesting the district court’s determination that

Ellis’s Indiana conviction for felony intimidation is not

a violent felony under the ACCA and arguing that the 90-

2

Not all of Ellis’s arguments merit discussion. He claims, for

example, that the district court committed several evidentiary

errors during the course of the jury trial on the Indiana

charges. These arguments relate to evidence of Ellis’s gang

membership, rank, and activity; the admission of federal

firearms tracing reports; and the prosecutor’s inadvertent

display to the jury of a photo of Ellis wearing jail clothing. We

have considered these arguments and reject them as meritless.

Nos. 08-2512, 08-2443 & 08-4055 9

month sentence is otherwise unreasonable. We take up

Ellis’s challenges to the Indiana convictions first, and

then move to the parties’ sentencing arguments.

A. Challenges to the Indiana Convictions

1. Sixth Amendment Speedy-Trial Challenge

Ellis argues that the lengthy delay between his Indiana

indictment and trial violated his right to a speedy trial

under the Sixth Amendment. Ellis was taken into

federal custody during the August 2005 arrest that pre-

empted his plot to rob a Chicago firefighter who was

trafficking in cocaine. Ellis’s arrest set in motion the

indictment and ensuing proceedings in the Northern

District of Illinois. In the meantime, in November 2005

the United States Attorney in the Northern District of

Indiana obtained a separate indictment against Ellis. As

we have noted, however, on the government’s motion

and for the protection of the witnesses, the indictment

was sealed the same day it was returned.

In August 2007 Ellis’s attorney learned of the sealed

Indiana indictment and in February 2008 invoked

Ellis’s Sixth Amendment right to a speedy trial. In May

2008—about a week and a half after the proceedings in

the Illinois case concluded—the Indiana indictment was

unsealed. Ellis moved to dismiss on Sixth Amendment

speedy-trial grounds. The district court denied the

motion, concluding that Ellis had suffered no prejudice

from the delay. Ellis’s trial on the Indiana charges began

on July 22, 2008, about two months after the indictment

was unsealed but 32 months after it was returned.

10 Nos. 08-2512, 08-2443 & 08-4055

We review de novo the court’s denial of Ellis’s mo-

tion to dismiss, but accept the court’s underlying

factual findings unless they are clearly erroneous. United

States v. Loera, 565 F.3d 406, 411 (7th Cir. 2009). The

Sixth Amendment guarantees an accused the right to a

“speedy and public trial.” U.S. C ONST. amend. VI. To

determine whether a pretrial delay violates this right, the

Supreme Court has instructed us to weigh four factors:

“whether delay before trial was uncommonly long,

whether the government or the criminal defendant is

more to blame for that delay, whether, in due course, the

defendant asserted his right to a speedy trial, and whether

he suffered prejudice as the delay’s result.” Doggett v.

United States, 505 U.S. 647, 651 (1992). As to the first factor,

“[w]e have considered delays that approach one year

presumptively prejudicial.” United States v. Oriedo, 498

F.3d 593, 597 (7th Cir. 2007). The 32-month delay at

issue here plainly exceeds this threshold. The remaining

factors, however, outweigh the effect of the delay in

this case.

Ellis’s prosecution on the Illinois charges fully ac-

counted for the delay and justified putting the Indiana

case on hold. Although the postponement was lengthy,

nothing suggests that the government was dragging its

feet or was otherwise at fault. See United States v.

Grimmond, 137 F.3d 823, 828 (4th Cir. 1998) (“Valid rea-

sons for delaying a trial are weighted in favor of the

Government.”). It is generally accepted that a delay

occasioned by the prosecution of the defendant in

another jurisdiction is not a basis for a dismissal on

constitutional speedy-trial grounds. See, e.g., United States

Nos. 08-2512, 08-2443 & 08-4055 11

v. Watford, 468 F.3d 891, 903 (6th Cir. 2006); United States

v. Brown, 325 F.3d 1032, 1035 (8th Cir. 2003); Grimmond,

137 F.3d at 830; United States v. Thomas, 55 F.3d 144, 150-

51 & n.6 (4th Cir. 1995).

Although many cases considering the speedy-trial

implications of separate prosecutions involve one state

and one federal prosecution, the practical problems of

simultaneous criminal proceedings in separate jurisdic-

tions are the same regardless of whether the sovereign

prosecuting each case is the same or different. In both

situations the administrative difficulties and safety con-

cerns presented by parallel prosecutions generally

justify delaying the second case. See Thomas, 55 F.3d at 150-

51 (noting that having “to increase inmate transportation

back and forth between [two courts carries] consequent

additional safety risks and administrative costs, and

[it] generally . . . throw[s] parallel . . . prosecutions into

confusion and disarray”); see also United States v.

Kimberlin, 805 F.2d 210, 225-26 (7th Cir. 1986) (detailing

confusion that ensued from simultaneous federal pros-

ecutions). In this case the government prudently opted

for consecutive prosecutions and brought the Indiana

charges to trial soon after the Illinois case was concluded.

Nor was Ellis actually prejudiced by the delay. He

argues that any delay is inherently prejudicial because

it provokes anxiety, see Barker v. Wingo, 407 U.S. 514,

532 (1972) (noting the prejudice factor is designed “to

minimize anxiety and concern of the accused”), but here

the district court reasonably determined that the effect

of this factor was extremely limited. Importantly, Ellis

12 Nos. 08-2512, 08-2443 & 08-4055

did not know about the sealed indictment until

August 2007. Beyond his general claim of delay-based

“anxiety,” Ellis has not identified a more concrete form

of prejudice attributable to the gap in time between

indictment and trial. Finally, we note that although

Ellis properly and “in due course” invoked his Sixth

Amendment speedy-trial right, this factor does not con-

tribute much to the balance of equities, and certainly not

enough to warrant dismissal. As we have explained,

the delay in the Indiana case was entirely attributable

to the ongoing proceedings in the Northern District of

Illinois, and Ellis’s argument for an earlier trial must be

considered against the practicalities of the situation. Cf.

id. at 531 (“Whether and how a defendant asserts his

right is closely related to the other factors we have men-

tioned.”). Under the circumstances here, the balance of

factors is rather straightforward. Although the delay in

bringing the Indiana case to trial was lengthy, we con-

clude that the district court properly denied Ellis’s

motion to dismiss the indictment on Sixth Amendment

speedy-trial grounds.

2. Statute-of-Limitations Challenge

Ellis next argues that Counts 1 through 5 of the Indiana

indictment were time-barred under the statute of limita-

tions, see 18 U.S.C. § 3282(a), and should have been dis-

missed. Section 3282(a) provides that “no person shall be

prosecuted, tried, or punished for any offense, not capital,

unless the indictment is found . . . within five years next

after such offense shall have been committed.” Although

Nos. 08-2512, 08-2443 & 08-4055 13

the grand jury returned the indictment in November 2005,

well before the five-year limitations period expired, the

indictment was immediately sealed and not unsealed

until May 2008, more than five years after the 2003 events

that formed the basis for Counts 1 through 5. Ellis’s

statute-of-limitations challenge turns on how the sealing

of an indictment affects when an indictment is “found”

within the meaning of § 3282(a).

The circuits are divided on whether the sealing of an

indictment affects when the indictment is “found” for

purposes of the statute of limitations. The Tenth Circuit

has held that an indictment is “found” under § 3282(a)

whenever it is returned by the grand jury; sealing the

indictment has no effect on this date. United States v.

Thompson, 287 F.3d 1244, 1248-52 (10th Cir. 2002). But

other circuits have held that sealing matters, at least in

one sense; these circuits have held that an indictment

is not “found” for purposes of § 3282(a) if it was

improperly sealed and the improper sealing prejudiced

to the defendant. See, e.g., United States v. Bracy,

67 F.3d 1421, 1426 (9th Cir. 1995); United States v. Sharpe,

995 F.2d 49, 51-52 (5th Cir. 1993) (per curiam); United

States v. Muse, 633 F.2d 1041, 1043-44 (2d Cir. 1980) (en

banc). We have not affirmatively taken a position on

the question, cf. United States v. Pearson, 340 F.3d 459, 464

(7th Cir. 2003) (citing Thompson but not mentioning the

circuit split), vacated on other grounds sub nom., Hawkins

v. United States, 543 U.S. 1097 (2005), and there is no need

to do so in this case. Even under the interpretation of

§ 3282(a) most favorable to Ellis—that improper sealing

makes a difference if it prejudiced him—his statute-of-

14 Nos. 08-2512, 08-2443 & 08-4055

limitations argument fails. The Indiana indictment was

properly sealed.

Under Federal Rule of Criminal Procedure 6(e)(4),3 a

district court’s power to seal an indictment is broad;

sealing an indictment is generally permitted when it is

in the public interest or serves a legitimate law-enforce-

ment purpose. See Worrell Newspapers of Ind., Inc. v.

Westhafer, 739 F.2d 1219, 1222-23 (7th Cir. 1984) (“[C]ourts

have the power to seal indictments or informations,

under appropriate circumstances, to facilitate the ap-

prehension of criminals.”); Bracy, 67 F.3d at 1426

(holding that the need to protect potential witnesses

from a violent gang may justify the sealing of an indict-

ment); United States v. DiSalvo, 34 F.3d 1204, 1218 (3d Cir.

1994) (“An indictment may be sealed for any legitimate

law enforcement reason or where the public interest

requires it.”); United States v. Southland Corp., 760 F.2d

1366, 1380 (2d Cir. 1985) (“[G]reat deference should be

accorded to the discretion of the magistrate [to seal an

indictment], at least in the absence of any evidence

of substantial prejudice to the defendant.”). Here, the

indictment was sealed for the security of the witnesses

and to guard against potential witness intimidation or

tampering. These reasons are legitimate and com-

pellingly supported by the record.

3

The Rule reads in relevant part: “The magistrate judge to

whom an indictment is returned may direct that the indictment

be kept secret until the defendant is in custody or has been

released pending trial.” F ED . R. C RIM . P. 6(e)(4).

Nos. 08-2512, 08-2443 & 08-4055 15

Ellis was the chief enforcer of a violent street gang and

had an acknowledged history of torture, extortion, and

shakedowns. Before he was arrested, he had threatened

several witnesses. Under these circumstances, it was

manifestly reasonable for the government to suspect that

Ellis might enlist fellow gang members to target wit-

nesses in the Indiana case during the pendency of the

Illinois prosecution. Ellis contends that sealing the in-

dictment was not necessary because some of the wit-

nesses had themselves been indicted. We are not per-

suaded. That some of the witnesses in the Indiana pros-

ecution were under public indictment does not mean

they could not be targets of intimidation or retaliation

by Ellis or his gang associates. Sealing the indictment

was a reasonable measure to protect the identity,

security, and testimony of the witnesses in the Indiana

case.

3. Double Jeopardy as to Count 9 in the Indiana Prosecution

Ellis was prosecuted in the Illinois case for unlawfully

possessing the two handguns from the June 2005

Indiana straw purchase that he turned over to the ATF

agents in Chicago on July 29, 2005. Count 9 in the

Indiana case charged Ellis with illegally possessing

the same two firearms in Indiana after they were ac-

quired in the straw purchase at the Osceola gun store.

Ellis argued in the district court that punishing him

twice for possessing the same guns violated the Double

Jeopardy Clause. The district court agreed as to the hand-

gun he kept at his mother’s house in Illinois; that gun

16 Nos. 08-2512, 08-2443 & 08-4055

never left his possession after he acquired it in Indiana. But

the court rejected Ellis’s double-jeopardy claim with

respect to the second gun from the June 2005 straw pur-

chase. Because Ellis retrieved that gun from a fellow

Gangster Disciple before giving it to federal agents, the

court held there was a “break in possession that is suffi-

cient to satisfy the . . . double-jeopardy clause of the

Constitution.” The court explained that Ellis “had the

[second] gun in June, . . . gave it to somebody else and

got it back. Getting it back was a crime for which

Mr. Ellis has been convicted in Illinois . . . .”

We review de novo the district court’s denial of Ellis’s

motion to dismiss Count 9. See United States v. Gilmore,

454 F.3d 725, 729 (7th Cir. 2006). The Double Jeopardy

Clause of the Fifth Amendment prohibits “punishing

twice, or attempting a second time to punish criminally,

for the same offense.” Witte v. United States, 515 U.S. 389,

396 (1995) (emphasis removed) (quotation marks omit-

ted). The § 922(g)(1) felon-in-possession crime is a con-

tinuing offense. See United States v. Fleischli, 305 F.3d

643, 658 (7th Cir. 2002) (“Possession of a firearm is a

continuing offense which ceases only when the pos-

session stops.”), superseded by statute on other grounds.

As such, the Double Jeopardy Clause prohibits pun-

ishing Ellis twice for a continuous possession of the

same gun, even under a theory that he is being charged

for different “moments” of possession. See United States

v. Hope, 545 F.3d 293, 296 (5th Cir. 2008). Accordingly, if

Ellis maintained possession of the second handgun

from the June 2005 straw purchase in Indiana until he

turned it over to federal agents the following month in

Nos. 08-2512, 08-2443 & 08-4055 17

Illinois, double jeopardy prohibits a second punishment

in the Indiana case after his conviction and sentence for

unlawfully possessing the same gun in Illinois.

As it did in the district court, the government argues

that Ellis’s act of retrieving the second gun from his

gang associate establishes that he committed two

separate crimes rather than one continuous crime of

possession, citing United States v. Conley, 291 F.3d 464, 470

(7th Cir. 2002). In Conley we held that a felon may be

charged with two crimes of unlawful possession of the

same firearm under § 922(g)(1) if he possessed the

gun, knowingly relinquished possession, and then reac-

quired possession of the gun. Id. at 470-71. Possession

may be actual or constructive, and “there is no legal

difference . . . between actual and constructive posses-

sion.” United States v. Moses, 513 F.3d 727, 733 (7th Cir.

2008); see also Conley, 291 F.3d at 468 n.2. Therefore, a

felon who unlawfully possesses a firearm and then re-

linquishes actual possession while maintaining construc-

tive possession has committed only one violation of

§ 922(g)(1). Stated differently, a felon in this situation—

one who maintains constructive possession of a firearm

while another has actual possession of it—does not

commit a new crime when he regains actual possession

of the firearm. See United States v. Jones, 403 F.3d 604,

606 (8th Cir. 2005) (handing firearm momentarily to

officers does not establish interruption of constructive

possession); United States v. Horodner, 993 F.2d 191, 193

(9th Cir. 1993) (leaving firearm with repairman for one

week does not establish break in constructive possession).

18 Nos. 08-2512, 08-2443 & 08-4055

Therefore, to charge and punish a defendant for more

than one § 922(g)(1) offense for separate “possessions” of

the same gun, there must be a relinquishment of both

actual and constructive possession of the gun before it is

reacquired. See United States v. Lloyd, 71 F.3d 1256, 1267

(7th Cir. 1995). Here, Ellis argues that he committed only

one continuous § 922(g)(1) offense involving both of the

firearms from the June 2005 straw purchase—the one

he kept at his mother’s house and the one that was in

OG’s actual possession at the time he retrieved it and

gave it to the agents. Because he was convicted and

punished for illegally possessing the guns in Illinois, he

cannot be punished a second time in Indiana unless the

government can establish that he relinquished construc-

tive possession of the second firearm while it was in

OG’s actual possession.

Our cases hold that a gang leader constructively pos-

sesses a gang firearm when he has knowledge of the

firearm’s existence and intentionally directs the actions

of those who physically possess it. United States v.

Rawlings, 341 F.3d 657, 659 (7th Cir. 2003) (“[A] drug lord

who directs his enforcers to arm themselves is, if they

do so, a constructive possessor of the arms. He is acting

through agents, just as in the case . . . of the felon who

asks his companion to hold his gun for him.” (citations

omitted)); United States v. McAnderson, 914 F.2d 934, 947-

48 (7th Cir. 1990) (upholding a finding of constructive

possession where the gang leader “was aware of the

violence that had been planned and knew that the

weapons in the [gang’s] possession would be used to

commit [violent] acts”); see also Lloyd, 71 F.3d at 1266

Nos. 08-2512, 08-2443 & 08-4055 19

(“Constructive possession exists when a person does not

have actual possession but instead knowingly has

the power and the intention at a given time to exercise

dominion and control over an object, either directly or

through others.” (quotation marks omitted)). As the

chief enforcer for the Gangster Disciples, Ellis certainly

was a gang leader, but the district court held that he

could not have had “constructive possession of every

firearm in the possession of a member of the Gangster

Disciples.”

We think this overstates the inquiry. The pertinent

question is not whether Ellis was in constructive posses-

sion of every firearm in the Gangster Disciples’ arsenal

but whether he relinquished constructive possession of

this particular firearm while it was in the actual pos-

session of OG, his gang associate. And on this question

the record is scanty and the government’s argument

nonexistent. We do not know how long Ellis possessed

the gun after the straw purchase in June 2005. We do not

know when he gave it to OG (or how OG otherwise

came into actual possession of it) or what OG’s posses-

sory “rights” were with respect to the firearm. We do

know that Ellis was able to reacquire actual physical

possession of the gun on a moment’s notice on July 29

and then permanently deprive OG of possession of it.

The government has focused its argument exclusively

on the break in actual possession of the firearm and does

not address the question of constructive possession at all.

Moreover, Conley, on which the government heavily

relies, is factually distinguishable from this case. There,

20 Nos. 08-2512, 08-2443 & 08-4055

the defendant was indicted for two violations of

§ 922(g)(1) for possessing the same shotgun on two

dates about six months apart. Conley, 291 F.3d at 467. The

shotgun in question was not owned by the defendant

but by a friend who lived in a trailer behind the defen-

dant’s house. The first count in the indictment charged

the defendant with possessing the shotgun on July 7,

1999; the evidence established that on that date he had

fired it to scare a group of teenagers off his property. The

second count charged him with possessing the shot-

gun about six months later, in January 2000. Regarding

this second possession, the evidence established that

the owner of the shotgun had resumed possession of it

sometime after the July 7 incident and retained posses-

sion until the fall when he moved away and abandoned

the gun to the defendant. During the execution of a

search warrant on January 27, 2000, the shotgun was

found in the defendant’s padlocked storage shed, along

with many other items of his property. Id. at 467-68.

This evidence, we held, established an interruption in

the defendant’s possession of the shotgun sufficient

to establish two separate crimes and therefore permit

more than one punishment for distinct acts of pos-

sessing the same firearm. Id. at 470-71.

Conley thus involved two separate episodes of actual

possession of the same firearm; the question was

whether there was a sufficient break between the two

for double-jeopardy purposes. Constructive posession

was not at issue. This case is different. Here, it is undis-

puted that Ellis relinquished actual possession of the

second gun after he acquired it from the straw pur-

Nos. 08-2512, 08-2443 & 08-4055 21

chaser in June 2005; the important question for double-

jeopardy purposes is whether he relinquished construc-

tive possession as well. As we have noted, the govern-

ment has not discussed this question at all; it has not

addressed, that is, whether the evidence establishes

that Ellis intended either to relinquish or maintain

control over the gun while OG had it. As far as we can

tell, to the extent the evidence points in one direction or

another, it appears to suggest that Ellis intended to main-

tain dominion and control over the gun. He knew exactly

where it was kept and was able to get it back from OG

in very short order and deprive him permanently of it.

In any event, we are hard-pressed to credit the oppo-

site view of the evidence when the government has

neither made nor supported an argument in favor of it.4

4

Our cases are not clear about who has the burden in a double-

jeopardy claim of this type. In United States v. Dortch, 5 F.3d

1056, 1061 (7th Cir. 1993), we said that “at the post-trial stage

the defendant alone bears the burden of proving that he or

she has been charged with the same offense twice.” On the

other hand, in United States v. Doyle, 121 F.3d 1078, 1089 (7th

Cir. 1997), we applied a burden-shifting approach and held

that “[t]he defendant first must set out a prima facie case that

the second indictment charges him with the same offense for

which he has already been convicted. Then, the burden

switches to the government to demonstrate, by a preponder-

ance of the evidence, that the two indictments charged sepa-

rate offenses.” Conley considered the double-jeopardy ques-

tion—whether there was an interruption in the defendant’s

(continued...)

22 Nos. 08-2512, 08-2443 & 08-4055

In the face of this silence, we conclude that double jeop-

ardy precludes punishing Ellis twice under § 922(g)(9)—

first in the Illinois case and then in the Indiana case—based

on his possession of the same gun. His motion to

dismiss Count 9 should have been granted.

4

(...continued)

possession of the firearm—to be part of the government’s

general burden of proof at trial. United States v. Conley, 291 F.3d

464, 470-71 (7th Cir. 2002). (“Because the Government was

required to convince the jury beyond a reasonable doubt of

Conley’s possession of the shotgun on two separate dates, as

two distinct courses of conduct, the Government established

the elements of two separate crimes.”). The disagreement over

the applicable standards is not limited to this circuit. See, e.g.,

United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008) (“To

prevail on a double jeopardy argument, the defendant bears

the burden to establish, both in law and in fact, the commonality

of the offenses.” (quotation marks omitted)); United States v.

Olmeda, 461 F.3d 271, 282 (2d Cir. 2006) (“In considering

double jeopardy challenges to successive conspiracy prosecu-

tions, this court has identified a shifting burden of proof.”);

United States v. Jones, 403 F.3d 604, 606 (8th Cir. 2005) (“The

government argues that the record will support a finding

beyond a reasonable doubt that Mr. Jones knowingly lost and

then regained possession of the firearm . . . .”); see also United

States v. Guzman, 85 F.3d 823, 827 n.3 (1st Cir. 1996) (recognizing

other circuits’ various positions). As we have noted, the gov-

ernment relied entirely on Conley in its brief and at oral argu-

ment acknowledged that it had the burden of establishing

factually separate offenses beyond a reasonable doubt. We

will hold the government to this concession.

Nos. 08-2512, 08-2443 & 08-4055 23

B. Sentencing Challenges

1. Sentencing Enhancement Under the Armed Career

Criminal Act

The two district courts disagreed over whether Ellis’s

Indiana conviction for felony intimidation qualifies as

a third predicate violent felony for purposes of the en-

hanced penalties in the ACCA and the corresponding

sentencing guidelines. This is the primary issue in Ellis’s

challenge to his sentence in the Indiana case and

prompted the government’s cross-appeal in the Illinois

case.

Ordinarily, a defendant who violates § 922(g)(1) may be

“imprisoned not more than 10 years.” 18 U.S.C. § 924(a)(2).

But under the ACCA, a defendant who violates § 922(g)(1)

“shall be . . . imprisoned not less than fifteen years” if

he “has three previous convictions . . . for a violent

felony or a serious drug offense, or both.” 18 U.S.C.

§ 924(e)(1). As relevant here, the ACCA defines

“violent felony” as any crime punishable by more than

one year in prison and that “has as an element the use,

attempted use, or threatened use of physical force

against the person of another.” Id. § 924(e)(2)(B)(i). A

defendant who is subject to the ACCA’s enhanced penal-

ties as an armed career criminal is also subject to higher

offense and criminal-history levels under the sentencing

guidelines. See U.S.S.G. § 4B1.4.

The parties agree that two of Ellis’s convictions—for

robbery and armed robbery—are violent felonies. Their

disagreement centers on whether his Indiana conviction

for felony intimidation under IND. C ODE § 35-45-2-1

24 Nos. 08-2512, 08-2443 & 08-4055

qualifies as a third violent felony. A person is guilty of

intimidation under Indiana law if he “communicates a

threat to another person” with one of three prohibited

intents; the one that is relevant here is “the intent . . . that

the other person be placed in fear of retaliation for a

prior lawful act.” IND. C ODE § 35-45-2-1(a)(2). The

statute also defines “threat” in several different ways.

The relevant definition in this case is “an expression, by

words or action, of an intention to . . . unlawfully injure

the person threatened or another person.” Id. § 35-45-2-

1(c)(1). Although Indiana’s intimidation offense is gen-

erally a misdemeanor, the crime is a felony (and

carries a possible prison term of more than one year) if

the threat is directed at a law-enforcement officer. Id. § 35-

45-2-1(b)(1)(B)(i).

Ellis pleaded guilty to a state-court information

charging him with Class D felony intimidation for threat-

ening to “harm” a police officer who had arrested him.

As we have noted, this implicates the version of the

intimidation offense that requires an “expression . . . of

an intention to unlawfully injure” another “with the

intent . . . that the other person be placed in fear of retalia-

tion for a prior lawful act.” IND. C ODE § 35-45-2-1(a)(2)

and (c)(1). After reviewing the state-court record, the

district judge in the Illinois case decided that Ellis’s

offense was not a violent felony because “the [state-

court] judge did not really believe that Mr. Ellis engaged

in or was about to engage in any actual violent behav-

ior.” The Indiana judge disagreed and held that a con-

viction for the offense described in subsections (a)(2)

and (c)(1) of the Indiana statute “has as an element the

Nos. 08-2512, 08-2443 & 08-4055 25

threatened use of physical force against another person”

and therefore counts as a violent felony.5 We review these

determinations de novo. United States v. Woods, 576 F.3d

400, 408 (7th Cir. 2009).

A “categorical approach” applies to the determination

of whether a crime qualifies as a violent felony under

the ACCA. See, e.g., United States v. Dismuke, 593 F.3d

582, 589 (7th Cir. 2010); Woods, 576 F.3d at 403-04 . Under

this approach “we ‘look only to the fact of conviction

and the statutory definition of the prior offense’ rather

than the ‘particular facts disclosed by the record of con-

5

Ellis argues that the Indiana district judge was precluded

from considering the application of the ACCA to his intimida-

tion conviction because the issue had already been decided

by the Illinois district court. As a general matter, “[i]ssue pre-

clusion bars successive litigation of ‘an issue of fact or law’ that

‘is actually litigated and determined by a valid and final judg-

ment, and . . . is essential to the judgment.’ ” Bobby v. Bies, 129

S. Ct. 2145, 2152 (2009) (quoting R ESTATEMENT (S ECOND ) OF

JUDGMENTS § 27 (1980)). It is unclear how the doctrine of issue

preclusion applies in criminal sentencing. The Supreme Court

has applied the doctrine to a jury’s factual determinations

necessary to an acquittal, Ashe v. Swenson, 397 U.S. 436, 443-45

(1970), but it has also suggested that the doctrine applies

more narrowly in the criminal context than the civil context,

Standefer v. United States, 447 U.S. 10, 22-25 (1980). We have

uncovered only one case in which a federal circuit court

applied issue preclusion at sentencing, and that was in a

capital case. See Delap v. Dugger, 890 F.2d 285, 314-19 (11th

Cir. 1989). Because we agree with Ellis’s position on the

merits, we need not decide the procedural issue here.

26 Nos. 08-2512, 08-2443 & 08-4055

viction.’ ” Dismuke, 593 F.3d at 589 (quoting Shepard v.

United States, 544 U.S. 13, 17 (2005) (internal quotation

marks omitted)). A modified categorical approach

applies when the relevant statute is divisible—that is,

when the statute describes multiple crimes or one crime

with multiple modes of commission. Id. This approach

permits an “expand[ed] . . . inquiry into a limited

range of additional material . . . in order to determine

whether the jury actually convicted the defendant of

(or, in the case of a guilty plea, the defendant expressly

admitted to) violating a portion of the statute that con-

stitutes a violent felony.” Id. (internal quotation marks

and emphasis omitted). This inquiry, however, is limited

to “the terms of the charging document, the terms of a

plea agreement or transcript of colloquy between judge

and defendant in which the factual basis for the plea

was confirmed by the defendant, or to some comparable

judicial record of this information.” Shepard, 544 U.S.

at 26. Importantly, the point of the modified categorical

approach is to determine which part of a divisible

statute the defendant was convicted of violating, not to

evaluate the actual facts of the underlying case. Dismuke,

593 F.3d at 589. As such, the Illinois judge’s focus on

whether Ellis had “engaged in or was about to engage

in any actual violent behavior” was misplaced.

The Illinois judge reached the right result, however, if

by the wrong route. Indiana’s intimidation statute is

divisible in the sense required to trigger the modi-

fied categorical approach, so a review of the state-court

charging document and Ellis’s plea colloquy was appropri-

ate—but only to determine which part of the Indiana

Nos. 08-2512, 08-2443 & 08-4055 27

intimidation statute he was convicted of violating. As we

have already noted, it is clear from these documents

that Ellis was convicted under subsections (a)(2) and

(c)(1) of the statute for threatening to “unlawfully

injure” a law-enforcement officer, making his offense a

felony under the penalty section of the statute. IND.

C ODE § 35-45-2-1(b)(1)(B)(i). The government maintains,

and the Indiana district court held, that this crime “has

as an element the . . . threatened use of physical force

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

We disagree.

The Supreme Court’s decision in Johnson v. United States,

130 S. Ct. 1265 (2010), provides the framework for deter-

mining whether a crime has as an element the use of

physical force against another. The Supreme Court ex-

plained in Johnson that “in the context of a statutory

definition of ‘violent felony,’ the phrase ‘physical force’

means violent force—that is, force capable of causing

physical pain or injury to another person.” Id. at 1271

(citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)).

Applying this interpretation, the Court concluded

that Florida’s battery statute—which requires for convic-

tion only intentional physical contact, no matter how

slight, see id. at 1269-70—did not include as an element

the use of physical force and therefore was not a

violent felony under the ACCA. Id. at 1274.

If under Indiana law a threat to “unlawfully injure”

another person includes only threats to inflict physical

injury, then a violation of subsection (c)(1) of Indiana’s

intimidation statute has as an element the threatened

28 Nos. 08-2512, 08-2443 & 08-4055

use of physical force, as required by the ACCA and

explained in Johnson. Ellis argues, however, that the

statute does not require a threat to inflict a physical

injury, noting instead that a threat to “unlawfully injure”

can be directed at either physical or nonphysical injuries,

the latter including emotional or reputational harms.

The government notes in supplemental briefing that

most of the published Indiana cases analyzing convic-

tions under subsection (c)(1) involve threats of physical

force against others. See, e.g., Hyde v. State, 531 N.E.2d

472, 473 (Ind. 1988) (shotgun owner’s threat to “blow

[officer] away”); H.J. v. State, 746 N.E.2d 400, 403 (Ind. Ct.

App. 2001) (threat to put gun to another’s head and pull

trigger). But neither the language of the statute itself nor

any Indiana case limits the reach of subsection (c)(1) to

threats of physical injury. Indeed, Ellis has alerted us to

one Indiana Supreme Court decision suggesting that

subsection (c)(1) covers threats to inflict nonphysical

injuries.

In Meek v. State, 185 N.E. 899 (Ind. 1933), the defendant

threatened to disinter and sell the body of a widow’s

late husband unless she paid $200. Indiana charged the

defendant with violating the then-operative blackmail

statute, which criminalized “threat[s] to do any injury

to the person or property of any one.” Id. at 900. The

defendant argued that the prosecution failed under

the statute because he had not threatened to do any

injury to the victim herself or to her property. The

Indiana Supreme Court rejected this argument, instead

concluding that “injury to the person” included “a

threat to invade any right for the invasion of which an

Nos. 08-2512, 08-2443 & 08-4055 29

action in damages would lie.” Id. at 901. Thus, the court

explained, “The damage that would result to a widow

from disinterment, removal, or destruction of the body

of her husband consists principally, at least, in physical

and mental pain, anguish, and suffering, and to that

extent is an ‘injury to the person.’ ” Id.

Meek teaches that “an injury to the person” for pur-

poses of Indiana’s threat statute encompasses threats

of physical and nonphysical injuries. Although sub-

section (c)(1) of the intimidation statute uses the term

“unlawfully injure,” the fact that the earlier and the cur-

rent version of the statute use the word “injury” without

any modifier is significant. An “injury” is “[t]he viola-

tion of another’s legal right, for which the law provides

a remedy,” and can be either physical or nonphysical.

B LACK’S L AW D ICTIONARY 856 (9th ed. 2009). Moreover, the

Indiana Code uses the phrases “bodily injury” and “serious

bodily injury” to signify physical injuries. See I ND. C ODE

§§ 35-41-1-4 (defining “bodily injury”) & 35-41-1-25

(defining “serious bodily injury”); see also IND. C ODE § 35-

42-2-1(a) (using the terms in the battery statute). If

the intimidation offense described in subsection (c)(1) of

the statute were limited to threats of physical injury,

it would use a term such as “bodily injury,” as the

Indiana Code does elsewhere when only physical

injury is meant. Instead, the intimidation statute uses

the general term “injure” and therefore applies more

broadly to encompass threats to inflict “unlawful in-

jury,” whether physical or nonphysical.

The government contends that this interpretation is

in direct tension with United States v. Sperberg, 432 F.3d

30 Nos. 08-2512, 08-2443 & 08-4055

706, 707-08 (7th Cir. 2005), which held that a conviction

under a similar Wisconsin statute was a violent felony.

At issue in Sperberg was W IS. S TAT. 943.30(1), which pro-

vides in relevant part: “Whoever . . . threatens or

commits any injury to the person . . . of another . . . with

intent to compel the person so threatened to do any act

against the person’s will or omit to do any lawful act, is

guilty of a Class H felony.” The defendant in Sperberg

stole lobster tails from a grocery store, and while

making his escape told a security guard to get out of his

way, stating, “I’ve got a gun and I’ll shoot you.” Although

noting that “Wisconsin equates physical and economic

injury,” we affirmed the district court’s determination

that Sperberg’s crime was a “violent felony” because

the defendant had threatened the guard with physical

injury. Id. at 707-08.

Our later decision in Woods undermines Sperberg to the

extent that its holding was premised on an examination

of the specific facts underlying the defendant’s conviction

when the statute describing the crime is nondivisible.

Woods specifically disavowed this understanding of the

modified categorical approach. See Woods, 576 F.3d at 404

(“What the sentencing court cannot do is to look at

the particular facts underlying the defendant’s convic-

tion.”). Under the modified categorical approach, properly

understood, the result in Sperberg would likely have

been different; the opinion specifically noted that

W IS. S TAT. 943.30(1) permits prosecutions for threats to

cause physical and nonphysical injuries. Sperberg, 432

F.3d at 708. Sperberg does not control the outcome here.

Nos. 08-2512, 08-2443 & 08-4055 31

We hold that Ellis’s conviction under IND. C ODE § 35-45-

2-1(a)(2) and (c)(1) is not a violent felony under the

ACCA because it does not “ha[ve] as an element the . . .

threatened use of physical force against the person of

another.” § 924(e)(2)(B)(i). This conclusion requires

resentencing in the Indiana case. The government has

not argued that Ellis’s intimidation conviction qualifies

as a violent felony under the ACCA’s residual clause. See

id. at § 924(e)(2)(B)(ii) (a crime is a “violent felony” if the

crime “is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another”); see

also Begay v. United States, 553 U.S. 137 (2008) (analyzing

the residual clause). Neither district court considered

this question, and by not advancing this alternative

argument on appeal, the government has waived it. See

United States v. Knox, 573 F.3d 441, 450 (7th Cir. 2009).

2. Reasonableness of the Illinois Sentence

Ellis’s advisory guidelines range in the Illinois case was

46 to 57 months, but the district court imposed an above-

guidelines sentence of 90 months in prison. The judge

explained that Ellis’s extensive criminal history justified

a sentence above the recommended range, noting that

Ellis’s prior crimes were “potentially horrifying to the

people involved” and that his earlier “ten-year time in

jail did not deter [him] from committing crimes when

he got out of jail.” Ellis argues that 90 months is unrea-

sonably high. The government argues that 90 months is

unreasonably low. Our review is for an abuse of discre-

32 Nos. 08-2512, 08-2443 & 08-4055

tion. Gall v. United States, 552 U.S. 38, 51 (2007). “[W]e

will uphold an above-guidelines sentence so long as the

district court offered an adequate statement of its

reasons, consistent with 18 U.S.C. § 3553(a), for imposing

such a sentence.” United States v. McIntyre, 531 F.3d 481,

483 (7th Cir. 2008) (per curiam).

Under the circumstances here, a 90-month sentence

strikes us as quite lenient. Ellis is a former chief enforcer

for a violent Chicago street gang, committed serious gun

crimes, and has an appalling criminal record and an

acknowledged history of torture and extortion. But the

court’s explanation for the sentence was adequate

and grounded in an appropriate consideration of the

§ 3553(a) factors. That a longer sentence would have

made sense does not make this sentence unreasonable.

And the 90-month sentence is hardly unreasonably high,

as Ellis contends. There was no abuse of discretion.

III. Conclusion

For the foregoing reasons, the judgment in the Illinois

case is A FFIRMED. Ellis’s conviction on Count 9 in the

Indiana case is R EVERSED, but the remaining convictions

are A FFIRMED. Ellis’s sentence in the Indiana case is

V ACATED , and the case is R EMANDED for resentencing

consistent with this opinion.

9-17-10