United States v. Ernest D. Shields

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-3726

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERNEST D. SHIELDS,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-cr-00440-1 — Rubén Castillo, Chief Judge.

____________________

ARGUED OCTOBER 29, 2014 — DECIDED JUNE 15, 2015

____________________

Before RIPPLE, KANNE, and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Ernest D. Shields was arrested

following a brief police chase and charged with possession

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

and 924(e)(1). Prior to trial, Mr. Shields filed, and the district

court denied, a motion to suppress the evidence obtained at

the time of his arrest as well as a motion to dismiss the

indictment on the ground that § 922(g)(1) violated the

Constitution of the United States. At a hearing three days

2 No. 13-3726

before trial, Mr. Shields requested a continuance to allow

him to file two past-due reply briefs and to arrange for two

additional witnesses. The court denied these requests. After

trial, a jury found Mr. Shields guilty, and the district court

imposed the fifteen-year mandatory minimum sentence.

Mr. Shields now appeals, setting forth six claims of error.

Because the district court correctly decided each

controverted issue, we affirm its judgment.

I

BACKGROUND

A.

At approximately 8:00 p.m. on January 10, 2011, Officers

Craig Coglianese and David Bachler of the Chicago Police

Department were on patrol in an unmarked police vehicle.

The officers observed Mr. Shields’s parked SUV partially

blocking a crosswalk, in violation of Chicago Municipal

Code § 9-64-110(c). The officers stopped their vehicle parallel

to Mr. Shields’s SUV.

Officer Coglianese exited his vehicle, approached

Mr. Shields, who was sitting in the driver’s seat of his SUV,

and asked for his driver’s license. After handing

Officer Coglianese his driver’s license, Mr. Shields

voluntarily exited the SUV and, at the officer’s request,

walked toward the rear of the vehicle with Officer

Coglianese. During this time, Officer Bachler had exited the

driver’s seat of the police vehicle and had walked around to

its front.

No. 13-3726 3

When Mr. Shields reached the rear of the vehicle, he did

not stop to talk to the police officers, but instead fled east

down an adjacent street. Officer Coglianese gave chase to

Mr. Shields. When Mr. Shields turned left down an alley, the

officer followed and saw Mr. Shields pull a firearm out of his

right coat pocket. Shortly thereafter, Officer Coglianese

caught up to Mr. Shields and pushed him to the ground.

Officer Bachler arrived in the police vehicle after one or two

minutes, and the officers placed Mr. Shields in handcuffs.

The officers rolled Mr. Shields over and discovered a loaded

six-shot .22-caliber revolver on the ground. It was the same

firearm that Officer Coglianese had observed Mr. Shields

remove from his pocket.

The officers placed Mr. Shields in the back of their police

vehicle, and Officer Coglianese read Mr. Shields his Miranda

rights. Thereafter, Officer Coglianese asked Mr. Shields,

“Why are you running with a gun?” 1 Mr. Shields responded,

“I shouldn’t have had that weapon on me.” 2 At the police

station, Officer Coglianese gave Mr. Shields a ticket for

blocking the crosswalk. Mr. Shields then was taken to the

hospital for treatment for a cut over his left eye that he

sustained during the arrest.

B.

On June 22, 2011, a grand jury indicted Mr. Shields for

possession of a firearm by a felon, in violation of 18 U.S.C.

1 R.143 at 163.

2 Id.

4 No. 13-3726

§§ 922(g) and 924(e)(1). The indictment thus listed both the

substantive crime and sentencing provision under the

Armed Career Criminal Act. In due course, Mr. Shields filed

a motion to suppress the firearm and his statements

following his arrest. In that motion, he maintained that the

traffic stop was illegal, that the police had conducted an

illegal search, and that his statement to the police was

involuntary. At an evidentiary hearing on this motion,

Officers Coglianese and Bachler testified about their

encounter with Mr. Shields. Corey Flournoy, an acquaintance

of Mr. Shields who was parked down the street at the time,

also testified.

Following the hearing, the district court denied the

motion. The court first determined that the officers acted

within the bounds of the Fourth Amendment in conducting

the traffic stop because they had probable cause to believe

that Mr. Shields had committed a traffic offense by blocking

the crosswalk. Rejecting Mr. Shields’s contention that the

officers illegally searched him after pulling him from his

vehicle, the court found that Mr. Shields had presented

“absolutely no evidence that” he was pulled out of the car by

the officers. 3 The court went on to note that Mr. Shields’s

flight provided the officers with probable cause to arrest him

for knowingly resisting or obstructing the performance of a

police officer in violation of 720 ILCS 5/31-1(a). 4 With regard

3 R.60 at 9.

4 The statute provides:

A person who knowingly resists or obstructs the per-

formance by one known to the person to be a peace of-

(continued...)

No. 13-3726 5

to the discovery of the firearm, the court determined that

“[t]he uncontroverted evidence from the suppression

hearing establishe[d] that the officers found the gun in plain

view after Shields was legally arrested following a traffic

stop that was reasonable in duration.” 5 Finally, the court

concluded that Mr. Shields did not establish that his

statements following his arrest were involuntary.

Mr. Shields filed a motion for reconsideration or, in the

alternative, a request that the court reopen the suppression

hearing to allow Mr. Shields to testify. The next day,

Mr. Shields filed a motion to dismiss the indictment on the

ground that the statute violated the Second Amendment of

the Constitution. The Government filed its responses to

Mr. Shields’s motions on March 8, 2013. Mr. Shields did not

file a reply for either motion by the March 15, 2013, deadline.

At a subsequent hearing, Mr. Shields asked for a

continuance of the trial so that he could have more time to

file his replies. He stated that he needed more time because

his counsel was involved in a separate trial that was “pushed

(...continued)

ficer, firefighter, or correctional institution employee of

any authorized act within his or her official capacity

commits a Class A misdemeanor.

720 ILCS 5/31-1(a).

Chicago Municipal Code § 9-64-230 provides that violat-

ing § 9-64-110(c) “shall be a civil offense punishable by fine, and

no criminal penalty, or civil sanction other than that prescribed

in this Code, shall be imposed.”

5 R.60 at 9.

6 No. 13-3726

into an inconvenient spot” and because he was trying to

arrange for two witnesses. 6 The court denied the request,

stating that it was too late to ask for more time to file the

replies and that it was too close to trial to grant a

continuance. The court specifically noted that Mr. Shields

had not filed a request for an extension of the reply deadline

and that it was only three business days from trial.

Mr. Shields then filed a motion to dismiss the indictment

on the ground that federal jurisdiction could not be

established beyond a reasonable doubt. He maintained that

the Government could not establish the requisite interstate

commerce nexus. The district court denied the motion.

The jury trial commenced on March 25, 2013, and lasted

three days. On the second day of trial, Mr. Shields stipulated

that he had “been at some time before January 10, 2011

convicted of a felony punishable by imprisonment for a term

exceeding one year.” 7 The Government offered no additional

evidence at trial of Mr. Shields’s prior convictions.

The district court instructed the jury that “the

government must prove…three…elements beyond a

reasonable doubt: No. 1, the defendant knowingly possessed

a firearm. No. 2, at the time of the charged act, the defendant

was a felon. And, No. 3, the firearm had been shipped or

transported in interstate or foreign commerce.” 8 The jury

6 R.142 at 2.

7 R.144 at 3.

8 R.145 at 48.

No. 13-3726 7

found Mr. Shields guilty of possession of a firearm by a

felon.

C.

The presentence report (“PSR”) calculated that

Mr. Shields had a total offense level of 33 and a criminal

history category of VI, resulting in a guidelines range of 235

to 293 months’ imprisonment. It also noted that Mr. Shields

had three prior violent felony convictions and therefore was

subject to a mandatory minimum sentence of fifteen years

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e)(1).

At the sentencing hearing, Mr. Shields, appearing pro se,9

objected to the PSR on several grounds. He first stated that

two of his convictions did not qualify for the ACCA

enhancement. Second, Mr. Shields argued that his

mandatory minimum sentence violated Alleyne v. United

States, 133 S. Ct. 2151 (2013), because his three prior felony

convictions were not submitted to the jury. Finally,

Mr. Shields argued that he received a letter that indicated

9 After trial but before his sentencing hearing, Mr. Shields filed a “Notice

of Termination,” which stated that he “reject[ed], refute[d] and den[ied]

[his counsel’s] ineffective/incompetent counsel and legal determination.”

R.108 at 1. Mr. Shields continued by stating that his counsel’s “alleged

authority is hereby abrogated, quashed and terminated, for cause, due to

[his] fraudulent acts and omissions of malfeasance.” Id. Mr. Shields’s

counsel subsequently filed a motion to withdraw, which the court grant-

ed after holding a hearing. On appeal, Mr. Shields does not challenge the

district court’s decision to allow him to proceed to sentencing without

counsel.

8 No. 13-3726

that his civil rights were restored and that, consequently, the

underlying offense could not serve as the basis of a

sentencing increase. 10 The district court rejected all of

Mr. Shields’s arguments and sentenced him to the fifteen-

year mandatory minimum, followed by a five-year term of

supervised release.

Mr. Shields now appeals his conviction and his sentence.

He makes six claims. 11 We will address each in turn.

II

DISCUSSION

A. Failure to Prove Prior Convictions

Mr. Shields contends that, in accordance with recent

Supreme Court precedent, his three prior convictions had to

be proved to the jury. He also maintains that the criminal

process against him was flawed from the beginning because

the indictment recited not only the substantive crime of felon

in possession of a firearm, under 18 U.S.C. § 922(g)(1), but

also the statutory sentencing enhancement for three prior

felony convictions under 18 U.S.C. § 924(e)(1). In his view,

the recitation of this latter provision obligated the

Government to prove before the jury not only the

10A court may not consider a conviction for purposes of the ACCA if the

defendant’s civil rights have been restored. See 18 U.S.C. § 921(a)(20).

11

Although Mr. Shields styled his brief as raising seven distinct argu-

ments, we address together his contentions that the Government of-

fered insufficient evidence to prove his three prior convictions and that

his prior convictions needed to be proved to the jury.

No. 13-3726 9

substantive offense of conviction (possession of a firearm by

a felon) but also the existence of each conviction.

Alternatively, he submits that the Government

constructively amended the indictment by proving only the

§ 922 offense.

We cannot accept the view that § 924(e)(1), on its own,

provides a substantive element of the offense that must be

submitted to the jury. In Almendarez-Torres v. United States,

523 U.S. 224 (1998), the Supreme Court held that prior

convictions are sentencing factors that could be determined

by the court and that need not be proved to a jury. See id. at

246–47. More recently, the Court held that any fact that

increases the mandatory minimum sentence is an element of

the offense that must be submitted to a jury. See Alleyne, 133

S. Ct. at 2155. But, in crafting that rule, the Court explicitly

declined to revisit Almendarez-Torres. See id. at 2160 n.1.

Mr. Shields nevertheless argues that Almendarez-Torres

now conflicts with the Court’s more recent decision in

Alleyne. Although we have said that “Almendarez-Torres is

vulnerable to being overruled,” we also have noted that only

the Supreme Court can overrule its prior decisions. United

States v. Elliott, 703 F.3d 378, 381 n.2 (7th Cir. 2012) (quoting

United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006)).

Accordingly, unless the Court acts, we are bound to follow

Almendarez-Torres. See United States v. Boswell, 772 F.3d 469,

478 (7th Cir. 2014); United States v. Zuniga, 767 F.3d 712, 718

(7th Cir. 2014). Mr. Shields’s prior felony convictions

therefore were not substantive elements of his offense and

did not need to be proved to the jury in order to support his

fifteen-year mandatory minimum sentence.

10 No. 13-3726

The fact that the indictment recited § 924(e)(1) does not

alter this conclusion. Including a sentencing provision, such

as § 924(e)(1), in an indictment does not transform a

sentencing factor into a substantive element. “Under Rule

7(c) of the Federal Rules of Criminal Procedure, a miscitation

such as the reference to § 924(e) is harmless error and cannot

be grounds for dismissing the indictment or reversing the

conviction unless the defendant is misled by the erroneous

reference and prejudiced thereby.” United States v. Lowe, 860

F.2d 1370, 1381 (7th Cir. 1988). 12 Mr. Shields does not

contend that he was misled or otherwise prejudiced by the

reference to the sentencing provision. Indeed, Mr. Shields’s

pretrial motions indicate that he was fully aware of the

substance of the pending charges. 13

Finally, Mr. Shields submits that, by including the

§ 924(e)(1) enhancement in the indictment, the Government

constructively amended the indictment by only offering

evidence to prove one felony. “A constructive amendment of

an indictment occurs when the evidence at trial ‘goes

beyond the parameters of the indictment in that it

establishes offenses different from or in addition to those

12 See also United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989) (re-

jecting the defendant’s argument after noting that the defendant did “not

even allege that he was misled or that he did not receive adequate notice

of the charges against him” and finding that there was “no evidence in

the record that [the defendant] was misled by the surplusage”).

13 See United States v. Lowe, 860 F.2d 1370, 1381 (7th Cir. 1988) (noting that

it was “apparent from the content of Lowe’s numerous pretrial motions

that the indictment created no such notice problem for him or his coun-

sel”).

No. 13-3726 11

charged by the grand jury.’” United States v. Phillips, 745 F.3d

829, 832 (7th Cir. 2014) (quoting United States v. Pigee, 197

F.3d 879, 886 (7th Cir. 1999)). The alleged amendment must

be sufficiently different such that it would be impossible to

know whether the grand jury would have indicted for the

crime actually proved. See id. Here, because the inclusion of

the sentencing provision in the indictment did not create a

separate offense, there can be no constructive amendment.

Simply stated, the Government presented evidence to prove

that Mr. Shields committed the offense set forth in the

indictment: it proved that he previously was convicted of a

felony and that he possessed a firearm that had travelled in

interstate commerce.

B. Motion to Suppress

Mr. Shields submits that the district court erred in

denying his motion to suppress. He contends that, prior to

his running away from the police officers, he had not been

seized and was not under arrest. Furthermore, he submits

that the parking violation is not an offense that would

support his arrest in the alley. The Government takes a

distinctly different view of the matter. It submits that the

officers undertook a legal traffic stop supported by probable

cause: Mr. Shields was committing a traffic offense by

parking in a crosswalk in violation of the Chicago Municipal

Code. In the Government’s view, the violation justified a

valid Terry investigative stop. The Government further

maintains that, because Mr. Shields’s running away

obstructed the performance of their duty, the officers had

probable cause to chase and apprehend him. It contends that

12 No. 13-3726

the flight also gave them adequate reasonable suspicion to

undertake a Terry investigative stop.

1.

We begin by setting forth the settled principles that must

guide our analysis. When we review a district court’s denial

of a motion to suppress, we review the district court’s

finding of historical facts for clear error. See United States v.

Tyler, 512 F.3d 405, 409 (7th Cir. 2008). Legal determinations,

such as the existence of a seizure and probable cause, are

reviewed de novo. See id.

The Fourth Amendment protects “against unreasonable

searches and seizures.” U.S. Const. amend. IV. In analyzing

this important constitutional protection, we have recognized

that there are three basic categories of police-citizen

interactions:

The first category is an arrest, for which the

Fourth Amendment requires that police have

probable cause to believe a person has

committed or is committing a crime. The

second category is an investigatory stop, which

is limited to a brief, non-intrusive detention.

This is also a Fourth Amendment “seizure,”

but the officer need only have specific and

articulable facts sufficient to give rise to a

reasonable suspicion that a person has

committed or is committing a crime. The third

category involves no restraint on the citizen’s

liberty, and is characterized by an officer

seeking the citizen’s voluntary cooperation

No. 13-3726 13

through non-coercive questioning. This is not a

seizure within the meaning of the Fourth

Amendment.

United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir. 1990)

(citations omitted).

As this formulation makes clear, not every police encoun-

ter implicates the Fourth Amendment. A seizure within the

meaning of the Fourth Amendment takes place if, in view of

all the circumstances surrounding the incident, a reasonable

person would not believe that he was free to leave. See Flori-

da v. Bostick, 501 U.S. 429, 439 (1991); accord United States v.

Drayton, 536 U.S. 194, 201 (2002). In determining whether a

reasonable person would believe that he was free to leave or

whether, instead, the encounter amounts to a seizure, we

consider such factors as:

(1) whether the encounter occurred in a public

place; (2) whether the suspect consented to

speak with the officers; (3) whether the officers

informed the individual that he was not under

arrest and was free to leave; (4) whether the

individuals were moved to another area; (5)

whether there was a threatening presence of

several officers and a display of weapons or

physical force; (6) whether the officers de-

prived the defendant of documents she needed

to continue on her way; and (7) whether the of-

ficers’ tone of voice was such that their re-

quests would likely be obeyed.

United States v. Johnson, 680 F.3d 966, 975 n.4 (7th Cir. 2012)

(quoting United States v. Barker, 467 F.3d 625, 629 (7th Cir.

14 No. 13-3726

2006)). We also have considered “whether police indicated to

the person that she was suspected of a crime or was the

specific target of police investigation.” United States v.

McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993).

The distinction between a consensual encounter, which

does not implicate the Fourth Amendment, and an

investigative stop, which does implicate the constitutional

guarantee because it constitutes a seizure, is often difficult to

discern. On one hand, the Supreme Court has recognized

that “mere police questioning does not constitute a seizure.”

Bostick, 501 U.S. at 434; see also United States v. Childs, 277

F.3d 947, 950 (7th Cir. 2002) (en banc) (noting that police may

approach persons and ask questions “provided that the

officers do not imply that answers…are obligatory”).

Accordingly, “law enforcement officers do not violate the

Fourth Amendment by merely approaching an individual on

the street or in another public place, by asking him if he is

willing to answer some questions, [or] by putting questions

to him if the person is willing to listen.” Childs, 277 F.3d at

950 (alteration in original) (quoting Bostick, 501 U.S. at 434).

A mere request for identification does not change a

voluntary stop, which is outside the purview of the Fourth

Amendment, into an investigatory stop. See Bostick, 501 U.S.

at 437 (“As we have explained, no seizure occurs when

police…ask to examine the individual’s identification… .”);

INS v. Delgado, 466 U.S. 210, 216 (1984) (explaining that a

request for identification by itself does not constitute a

seizure under the Fourth Amendment). These principles do

not change when an individual is seated in an automobile.

See, e.g., United States v. Douglass, 467 F.3d 621, 624 (7th Cir.

2006) (holding that “the officers’ stance on either side of [the

defendant’s] car [did not] convert the encounter into a

No. 13-3726 15

seizure because he still could have declined to answer their

questions and driven away”).

Our decision in Tyler illustrates the distinction between

consensual encounters and investigatory stops. In Tyler, we

concluded that the defendant would not have believed that

he was free to leave, even though “the encounter took place

on a public street and the officers did not draw their

weapons or (at least initially) lay hands on Tyler,” because

the officers “told him he was violating the law, took his

identification from him and retained it while they ran a

warrant check, and told him he could not leave until the

warrant check was completed.” 512 F.3d at 410. We relied on

our precedents addressing whether a defendant is seized

when he is approached by officers at an airport or train

station. In those cases, we had held that a defendant is seized

“[w]here the officers told the defendant he was under

investigation for carrying drugs or retained possession of his

identification, travel documents, and/or luggage.” Id. We

contrasted such a situation from “[w]here the officers only

generally identified themselves as narcotics investigators

and immediately returned the defendant’s identification and

travel documents.” Id. We concluded that “[a] reasonable

person would not feel free to walk away after being

confronted by two police officers and told he was

committing a crime in the officers’ presence.” 14 Id. at 410–11.

14Cf. Florida v. Royer, 460 U.S. 491, 501 (1983) (plurality opinion) (holding

that a suspect was seized when narcotics agents told him “that he was

suspected of transporting narcotics, and asked him to accompany them

to the police room, while retaining his ticket and driver’s license and

without indicating in any way that he was free to depart”).

16 No. 13-3726

The Supreme Court has characterized a traffic stop as a

form of an investigative stop. See Rodriguez v. United States,

135 S. Ct. 1609, 1614 (2015) (“A seizure for a traffic violation

justifies a police investigation of that violation. A relatively

brief encounter, a routine traffic stop is more analogous to a

so-called ‘Terry stop’ than to a formal arrest.” (alterations

omitted) (internal quotation marks omitted)); Navarette v.

California, 134 S. Ct. 1683, 1687 (2014) (“The Fourth

Amendment permits brief investigative stops—such as the

traffic stop in this case—when a law enforcement officer has

a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” (internal

quotation marks omitted) (citing Terry v. Ohio, 392 U.S. 1, 21–

22 (1968))). In contrast to a consensual encounter, “[a] traffic

stop for a suspected violation of law is a ‘seizure’ of the

occupants of the vehicle and therefore must be conducted in

accordance with the Fourth Amendment.” Heien v. North

Carolina, 135 S. Ct. 530, 536 (2014).

2.

Our colleague in the district court, viewing the totality of

the circumstances, concluded that this encounter was more

properly characterized as a seizure. In the district court’s

view, the officers approached the vehicle, and Mr. Shields,

because they believed that he was in the process of

committing an offense against the Chicago Municipal Code

by parking his vehicle in a cross walk. In the court’s view,

the officers had undertaken to confront him about a specific

violation of the law and, had that process, already initiated

by the officers, not been interrupted by Mr. Shields’s flight,

that specific confrontation would have taken place.

No. 13-3726 17

We agree with the district court’s determination. As

Mr. Shields admitted in his motion to suppress, the officers

effectuated “a stop to issue a parking ticket.” 15 After

recognizing the parking violation, the officers stopped their

vehicle, approached Mr. Shields, asked for his license, and

asked him to walk to the back of the vehicles. When

Mr. Shields fled the scene, the officers still were in

possession of his license. In view of all the circumstances

surrounding the encounter, a reasonable person in

Mr. Shields’s position would not believe that he was free to

walk away from the officers.

Because the officers believed that Mr. Shields was in the

process of committing a parking offense, they had, at a

minimum, reasonable suspicion to believe that the law was

being violated. To support an investigatory stop, “officers

need only ‘reasonable suspicion’—that is, ‘a particularized

and objective basis for suspecting the particular person

stopped’ of breaking the law.” Heien, 135 S. Ct. at 536

(quoting Navarette, 134 S. Ct. at 1687). “The standard takes

into account the totality of the circumstances—the whole

picture.” Navarette, 134 S. Ct. at 1687 (internal quotation

marks omitted). Because Mr. Shields does not dispute that

he violated the Chicago Municipal Code by parking in the

cross walk, the officers clearly had an objective basis to

believe that he was violating the law. See United States v.

Choudhry, 461 F.3d 1097, 1103–04 (9th Cir. 2006) (holding that

15R.41 at 3; see also id. at 4 (“Ernest Shields had complied with all rea-

sonable requests and the reason for the police to approach and detain

him had ended.”).

18 No. 13-3726

a parking violation is sufficient to support an investigatory

stop).

Ultimately, the officers had probable cause to arrest

Mr. Shields after they seized him following his flight down

the alley. An arrest may be supported by probable cause that

the arrestee committed any offense, regardless of the crime

charged or the crime the officer thought had been

committed. See Devenpeck v. Alford, 543 U.S. 146, 153–56

(2004); United States v. Bullock, 632 F.3d 1004, 1021 n.3 (7th

Cir. 2011). Probable cause exists if a reasonable officer would

believe “that the suspect has committed, is committing, or is

about to commit an offense,” based on the “facts and

circumstances within the officer’s knowledge.” Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979). “Probable cause is a fluid

concept based on common-sense interpretations of

reasonable police officers as to the totality of the

circumstances at the time of arrest.” United States v. Breit, 429

F.3d 725, 728 (7th Cir. 2005).

The officers were aware of several facts that would allow

a reasonable officer to believe that Mr. Shields committed an

offense. First, Mr. Shields’s decision to run from the officers

constituted another violation of law because he was

interfering with the performance of their duty to investigate

and, if appropriate, hold him accountable for the earlier

violation. See 720 ILCS 5/31-1(a). 16 Second, once

Officer Coglianese saw Mr. Shields remove a firearm from

his pocket, he had probable cause to believe that Mr. Shields

had violated Illinois’s statutory prohibition then in force

16 See supra note 4.

No. 13-3726 19

against carrying firearms. 17 See 720 ILCS 5/24-1(a)(4)

(prohibiting, with limited exceptions, the carrying of “any

pistol, revolver, stun gun or taser or other firearm”); cf.

United States v. Price, 328 F.3d 958, 960 (7th Cir. 2003) (“In a

situation, like the one here, where officers see a gun upon

approaching a person, they certainly have ‘reasonable

suspicion’ to restrain that person without violating Terry.”).

3.

In summary, the officers had at least reasonable

suspicion at the time of their initial encounter with

Mr. Shields and acquired additional bases for probable cause

when Mr. Shields fled and removed the firearm from his

pocket. Finally, at the time of their justifiable seizure in the

alley, the weapon was in plain sight and clearly subject to

seizure incident to the arrest. The district court, therefore,

was on solid ground in denying Mr. Shields’s motion to

suppress.

17 This court’s decision, subsequent to Mr. Shields’s arrest, that the pro-

hibition on the carrying of firearms in public was unconstitutional, see

Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), does not alter our

probable cause analysis, see Michigan v. DeFillippo, 443 U.S. 31, 37–38

(1979) (“A prudent officer, in the course of determining whether re-

spondent had committed an offense under all the circumstances shown

by this record, should not have been required to anticipate that a court

would later hold the ordinance unconstitutional.”).

20 No. 13-3726

C. Brady Claim

Mr. Shields contends that the Government withheld

evidence, in violation of Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose a lawsuit filed in 2004 against

the City of Chicago and twenty-six police officers, including

Officer Coglianese. He submits that the information

following an investigation, presumably conducted in

response to that lawsuit, might have included exculpatory

information and, at a minimum, be suitable for

impeachment purposes. Mr. Shields did not raise the alleged

Brady violation before the district court; we therefore review

the claim for plain error. See United States v. Mota, 685 F.3d

644, 648 (7th Cir. 2012). Accordingly, “the alleged Brady

violation must be an obvious error that affected [the

defendant’s] substantial rights and created ‘a substantial risk

of convicting an innocent person.’” Id. (quoting United States

v. Daniel, 576 F.3d 772, 774 (7th Cir. 2009)).

To establish a Brady violation, a defendant must “show

that (1) the [Government] suppressed evidence, (2) the

evidence was favorable to the defense, and (3) the evidence

was material to an issue at trial.” United States v. Villasenor,

664 F.3d 673, 683 (7th Cir. 2011). Evidence is suppressed

when “the prosecution fail[s] to disclose the evidence in time

for the defendant to make use of it” and “the evidence was

not otherwise available to the defendant through the exercise

of reasonable diligence.” Ienco v. Angarone, 429 F.3d 680, 683

(7th Cir. 2005). Although the Government has an affirmative

duty to learn of and to disclose any favorable evidence, the

defendant bears the burden of establishing a Brady violation

by offering more than mere speculation or unsupported

No. 13-3726 21

assertions that the Government suppressed evidence. See

United States v. Jumah, 599 F.3d 799, 808–09 (7th Cir. 2010).

Mr. Shields has failed to demonstrate that any evidence

was suppressed by the Government. The lawsuit, and its

settlement, have been publicly available since 2004. See

Quarles v. City of Chicago, No. 1:04-cv-03753 (N.D. Ill. filed

June 1, 2004). Mr. Shields could have accessed the settlement

at any point before the suppression hearing and trial

through the exercise of due diligence. See United States v.

Walker, 746 F.3d 300, 307 (7th Cir. 2014) (noting that the

defendant “never even asked the South [Holland] Police

Department to provide him with the evidence”); United

States v. White, 970 F.2d 328, 337 (7th Cir. 1992) (recognizing

that, among other considerations in finding no Brady

violation, the defendants “had access to the bankruptcy file

from which Center extracted and photocopied the notes he

turned over to the government”).

Indeed, the record makes clear that Mr. Shields was able

to obtain both the complaint and the settlement before the

end of trial. In his motion for a new trial, Mr. Shields noted

that “Officer Coglianese was part of a similar story in

another case, which became the subject of a civil rights law

suit.” 18 Even at sentencing, he expressed his dissatisfaction

with his trial counsel’s decision “not to bring [the prior

lawsuit] up in court,” noting that “[s]he could have brought

that up to the jurors to say, hey, I got a case similar like my

18 R.100 at 6. Cf. United States v. White, 970 F.2d 328, 337 (7th Cir. 1992)

(noting that the defendants introduced at trial “the very documents they

accuse the government of ‘suppressing’”).

22 No. 13-3726

client.” 19 Given that the documents were publicly available

and that Mr. Shields admittedly had accessed them, we

cannot conclude that they were suppressed under Brady.

Mr. Shields notes that he does not focus solely on

documents that were contained in the public record. He

submits that the Government had access to the “underlying

materials and evidence of alleged crimes committed by”

Officer Coglianese. 20 But a bare assertion that the

prosecution suppressed evidence, without more, is not

sufficient to prove a Brady violation. See Jumah, 599 F.3d at

809. Mr. Shields does not point to any specific evidence that

was suppressed by the Government. Instead, he theorizes

that, following the filing of the claim, the police department

initiated an investigation during which it created documents

that show that Officer Coglianese did in fact plant evidence

on the plaintiff. There is no reason to think that Mr. Shields’s

speculation is accurate. See United States v. Andrus, 775 F.2d

825, 843 (7th Cir. 1985) (denying request for discovery of

personnel files for law enforcement witnesses because there

was no suggestion that the personnel files actually contained

favorable evidence).

Furthermore, if Mr. Shields had some basis for his belief

that Officer Coglianese’s file contained evidence that could

be used for impeachment purposes, “he could have

requested that the district court undertake a review in camera

of the Government’s files.” Jumah, 599 F.3d at 809 (citing

Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)). “Such a

19 R.146 at 28.

20 Reply Br. 5.

No. 13-3726 23

review is the accepted procedure for resolving legitimate

doubt about the existence of undisclosed material and one

that balances the defendant’s important need for access to

potentially relevant material with the Government’s valid

interest in protecting confidential files and the integrity of

pending investigations.” Id. at 810 (emphasis added). Here,

we have nothing but speculation. Accordingly, we cannot

conclude that the Government committed a Brady violation.

D. Motion to Continue

Mr. Shields also contends that the district court erred in

denying his motion to continue the trial to allow him to file

replies in support of the pending motions and to locate two

witnesses. We will reverse the district court’s denial of a

motion for a continuance only for an abuse of discretion and

upon a showing of actual prejudice. United States v. Price, 520

F.3d 753, 760 (7th Cir. 2008).

A district court should consider several factors when

ruling upon a motion to continue, including

(1) the amount of time available for

preparation; (2) the likelihood of prejudice

from denial of the continuance; (3) the

defendant’s role in shortening the effective

preparation time; (4) the degree of complexity

of the case; (5) the availability of discovery

from the prosecution; (6) the likelihood a

continuance would have satisfied the movant’s

needs; and (7) the inconvenience and burden to

the district court and its pending case load.

24 No. 13-3726

United States v. Crowder, 588 F.3d 929, 936 (7th Cir. 2009)

(quoting United States v. Miller, 327 F.3d 598, 601 (7th Cir.

2003)). These factors are not exhaustive, and the district

court is in the best position to determine their relative

weight at the time the continuance is requested. See id. “The

party requesting the continuance should identify the specific

risk of prejudice, because a court may properly deny a

motion to continue that is based wholly on ‘vague and

conclusory’ statements.” Id. (quoting United States v. Robbins,

197 F.3d 829, 846 (7th Cir. 1999)).

We cannot conclude that the district court abused its

discretion in denying Mr. Shields’s motion for a continuance.

Mr. Shields requested the continuance three business days

before the start of trial. He had waited, moreover, until after

the filing deadline had passed before requesting that the

court grant him additional time to reply. After noting that

Mr. Shields had not filed a motion requesting an extension,

the district court reasonably explained that it was “way too

late” to request an extension or a continuance. 21 See Blue v.

Hartford Life & Accident Ins. Co., 698 F.3d 587, 594 (7th Cir.

2012) (noting that “courts have an interest in keeping

litigation moving forward and that maintaining respect for

set deadlines is essential to achieving that goal”).

Similarly, the district court did not err in determining

that Mr. Shields had enough time to prepare for trial. The

record indicates that Mr. Shields’s counsel filed an

appearance approximately three months before trial. The

case was not particularly complex, as Mr. Shields concedes,

21 R.142 at 2.

No. 13-3726 25

and the trial lasted only three days. Given these

circumstances, Mr. Shields had adequate time to prepare. See

United States v. Bush, 820 F.2d 858, 860–61 (7th Cir. 1987)

(holding that the district court did not abuse its discretion in

denying a continuance when the defendant had three

months to prepare for a simple case, with one defendant, in

a trial that lasted three days).

Nor has Mr. Shields made a convincing argument that he

has suffered prejudice by the lack of additional time to

prepare. Mr. Shields’s vague allegations that additional time

would have resulted in a more vigorous defense are

insufficient to establish the prejudice necessary to overturn

the district court’s determination. See Crowder, 588 F.3d at 937

(holding that the defendant could not “rely on vague and

conclusory statements about his abstract need for more time

to review the evidence”). Mr. Shields suggested that he was

attempting to get two witnesses “in line.” 22 He contends that

the district court erred by not inquiring into the identity of

the additional witnesses. But it appears that, had the district

court asked Mr. Shields for the names of the witnesses he

sought, he would have been unable to provide them. Indeed,

Mr. Shields was unable to identify the witnesses that he was

seeking either in his briefs or at oral argument. Instead, he

submits that the witnesses may have been Flourney, who

testified at the suppression hearing, and Kelly Quarles, who

filed the above mentioned lawsuit against the City of

Chicago. Without a clearer explanation of the witnesses

sought and the prejudice that Mr. Shields faced from the

inability to obtain their testimony, we cannot conclude that

22 R.142 at 2.

26 No. 13-3726

Mr. Shields was prejudiced by the court’s denial. Cf. United

States v. Aviles, 623 F.2d 1192, 1197 (7th Cir. 1980) (noting that

“the contention that the appellant did not call additional

witnesses for any reason other than his own trial strategy is

unsupported by the record”); United States v. Walker, 621 F.2d

163, 168 (5th Cir. 1980) (“In moving for a continuance based

on the unavailability of witnesses, a movant must show that:

‘due diligence has been exercised to obtain the attendance of

the witness, that substantial favorable evidence would be

tendered by the witness, that the witness is available and

willing to testify, and that the denial of the continuance

would materially prejudice the defendant.’” (quoting United

States v. Miller, 513 F.2d 791, 793 (5th Cir. 1975)).

E. Consideration of Prior Convictions Under the ACCA

Mr. Shields contends that the district court erred in

considering two of his prior convictions when sentencing

him under the ACCA. Specifically, he submits that the

district court should not have considered his prior

convictions for aggravated battery and residential burglary

because his civil rights had been restored.

Under § 924(e)(1), a defendant convicted of possessing a

firearm following three prior violent felony convictions must

be sentenced to a mandatory fifteen-year minimum sentence.

Convictions for which a defendant’s civil rights have been

restored are excluded from consideration. See 18 U.S.C.

§ 921(a)(20). The defendant bears the burden of proving that

his rights were restored by a preponderance of the evidence.

United States v. Foster, 652 F.3d 776, 793 (7th Cir. 2011). To

meet his burden, a defendant must prove that his rights to

No. 13-3726 27

vote, hold public office, and serve on a jury were restored,

and the restoration document must not warn about a

lingering firearms disability. See Buchmeier v. United States,

581 F.3d 561, 564, 566 (7th Cir. 2009) (en banc). We review de

novo whether a district court erred in sentencing a

defendant under the ACCA, “except to the extent that the

alleged error implicates a factual finding, which we review

for clear error.” Foster, 652 F.3d at 792 (internal quotation

marks omitted).

At his sentencing hearing, Mr. Shields testified that he

received a letter in 2003 stating that his civil rights were

restored. We have recognized, however, that a defendant

cannot meet his burden by relying on a vague recollection

that he received a letter restoring his civil rights. See id. at

793. Mr. Shields did not present the letter to the district

court, nor has he provided it on appeal. The only other

evidence to which Mr. Shields points in order to support his

claim that his civil rights were restored is the PSR. The PSR

indicates that his aggravated battery and residential

burglary sentences were discharged on May 9, 2002. 23 But

the discharge of Mr. Shields’s convictions does not, on its

own, establish that his civil rights were restored. See

Buchmeier, 581 F.3d at 564–65 (analyzing discharge letter to

determine if defendant’s civil rights were restored).

23 In his brief, Mr. Shields attempts to place the burden of proving

whether a prior conviction qualifies under the ACCA on the

Government. Mr. Shields invites our attention to the discharge language

in the PSR and concludes that the Government did not prove that the

prior convictions were “convictions” for the purposes of sentencing. As

we stated above, however, it is the defendant, and not the Government,

who must prove that his rights were restored.

28 No. 13-3726

Accordingly, Mr. Shields has not carried his burden, and

therefore the court did not err in considering his prior

convictions for sentencing under the ACCA.

F. Constitutionality of 18 U.S.C. § 922(g)(1)

Finally, Mr. Shields contends that § 922(g)(1) violates his

right to bear arms under the Second Amendment of the

United States Constitution. He relies on the Supreme Court’s

decisions in District of Columbia v. Heller, 554 U.S. 570 (2008),

and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), as

well as our decision in Moore v. Madigan, 702 F.3d 933 (7th

Cir. 2012).

The Supreme Court has recognized that the Second

Amendment protects an individual’s right to keep and bear

arms for his personal defense. See Heller, 554 U.S. at 635. The

Court noted, however, that nothing in its opinion “should be

taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons.” See id. at 626. 24

Applying Supreme Court precedent, we have

acknowledged that some categorical bans on firearm

possession are constitutional. See United States v. Skoien, 614

F.3d 638, 641 (7th Cir. 2010) (en banc). Indeed, in United

States v. Williams, 616 F.3d 685 (7th Cir. 2010), we addressed

the exact question presented here: whether the prohibition of

24 Accord McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (plurali-

ty opinion) (“We made it clear in Heller that our holding did not cast

doubt on such longstanding regulatory measures as prohibitions on the

possession of firearms by felons… . We repeat those assurances here.”

(internal quotation marks omitted)).

No. 13-3726 29

firearm possession by a convicted felon under § 922(g)(1) is

constitutional. We concluded that keeping firearms out of

the hands of violent felons is an important objective, and,

because the defendant was a violent felon, applying

§ 922(g)(1) to the defendant was substantially related to that

objective. See id. at 693.

Because Mr. Shields was convicted of three violent

felonies, applying § 922(g)(1) here is substantially related to

the Government’s important interest in keeping firearms

away from violent felons. We thus conclude that § 922(g)(1)

is constitutional as applied to Mr. Shields.

Conclusion

The judgment of the district court is affirmed.

AFFIRMED