United States v. Gillaum, Durriel E.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4015

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DURRIEL E. GILLAUM,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 02 CR 21—Barbara B. Crabb, Chief Judge.

____________

ARGUED SEPTEMBER 17, 2003—DECIDED JANUARY 20, 2004

*

AMENDED JUNE 23, 2004

____________

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge. A jury found Durriel Gillaum

guilty of possession of a firearm by a felon and sentenced

him to a prison term of 188 months. On appeal, Gillaum

challenges the execution of the search warrant that uncov-

*

Appellant filed a petition for rehearing and suggestion for

rehearing en banc after the original opinion of January 20, 2004,

and the appellee submitted an answer on February 25, 2004. The

petition for rehearing was granted, the opinion issued January 20,

2004, was withdrawn, and the present amended opinion is

substituted.

2 No. 02-4015

ered the prohibited firearm, his interrogation, the failure of

the government promptly to disclose a police report to

defense counsel, the calculation of his prison sentence, and

the constitutionality of the federal felon-in-possession of a

firearm statute. We affirm.

I. Background

On December 4, 2001, at approximately 7:00 a.m.,

members of the Dane County (Wisconsin) Narcotics and

Gangs Task Force, led by Detective Steven Greiber and

Sergeant Gary Anderson, executed a search warrant for the

apartment of Durriel Gillaum. The purpose of the search

warrant was to search for drugs (specifically, but not ex-

clusively, cocaine base), drug paraphernalia, and other

items likely to constitute evidence of drug trafficking. In the

four months prior to December 2001, on four occasions

undercover officers had purchased cocaine from persons in

the apartment.

Prior to entering Gillaum’s apartment, Anderson pounded

on the door to the apartment and shouted, “Police, search

warrant.” Anderson then began counting to himself and

waving his arm to let the entry team know how much time

had elapsed. After he waited five seconds, Anderson heard

the sound of footsteps coming from inside the apartment.

Anderson testified that the footsteps did not sound as if

they were getting closer to the door and he could not

discern whether they were moving from left to right or right

to left.

After listening to the footsteps for three to five seconds,

Anderson ordered a forcible entry into the apartment.

Anderson later testified that he did not believe three to five

seconds was sufficient time for the footsteps to reach the

entry door. In his report and recommendation denying

No. 02-4015 3

Gillaum’s motion to suppress the discovery of the handgun,

the magistrate judge found that approximately eight to ten

seconds elapsed between Anderson’s knock on the entry

door and the task force’s forcible entry into the apartment.

The footsteps Anderson heard appear to have been made

by 13-year-old Tryphenia Sykes. Tryphenia is the daughter

1

of Gillaum’s wife, Mary Sykes. Tryphenia testified that she

was eating breakfast and watching television when she

heard a knock on the door and someone say something. She

started towards the door but did not reach the door before

the task force rushed in.

Inside the apartment, the task force spread throughout the

apartment. Members of the task force found Gillaum and

Mary in their bed. Gillaum was handcuffed, taken to the

living room and informed of the search warrant. In the

living room, members of the task force learned that Gillaum

was diabetic. Gillaum was asked if he was experiencing any

medical problems and was told if he was having problems

to let someone know. Gillaum was also asked if he needed

any food. Gillaum indicated that he was all right and did

not need any food. Detective Greiber then led Gillaum into

the bathroom.

Once inside the bathroom, Greiber removed Gillaum’s

handcuffs and read Gillaum the Miranda warnings. Greiber

asked Gillaum if he was familiar with the warnings.

Gillaum told Greiber that he was familiar with the warnings

and that he was willing to talk to Greiber.

Greiber then questioned Gillaum for approximately half

1

Gillaum is not the biological father of Mary Sykes’ children.

Apparently, however, her children consider Gillaum their father

and we treat them as his children in this opinion.

4 No. 02-4015

an hour concerning drug activities. Part of this questioning

focused on a drug dealer named Kevin Harper. Gillaum

refused to provide Greiber with any information concerning

Harper. Greiber testified that Gillaum was coherent and did

not appear to be under the influence of drugs or alcohol.

Greiber also testified that Gillaum did not express a desire

to cease the interview, nor did Gillaum at any time assert

his right to remain silent. Gillaum testified that he told

Greiber that he (Gillaum) ended the interview by telling

Greiber he no longer wanted to talk. After the interview

Gillaum was again handcuffed and led back to the living

room.

Meanwhile, members of the task force discovered in

Gillaum’s bedroom closet a Bryco .38 handgun and two

magazines of ammunition. Approximately 15 minutes after

the first interview in the bathroom, Greiber took Gillaum to

the bedroom where he allowed Gillaum to dress and

questioned him concerning the handgun. Greiber did not

provide Gillaum with a second round of Miranda warnings.

Greiber testified that Gillaum told him that the gun was not

his but that he knew the gun was in his bedroom and that

his fingerprints would likely be found on it, because he had

handled the gun and worked the ammunition through it to

make sure it worked and that it was safe.

On February 21, 2002, a federal grand jury in the Western

District of Wisconsin returned a one-count indictment

charging Gillaum with possession of a firearm in violation

of 18 U.S.C. § 922(g)(1). On April 15, 2002, Gillaum filed a

motion to suppress the handgun asserting, inter alia, that the

failure of the task force to obey the knock and announce

requirements made the search unconstitutional. Gillaum

also filed a motion to suppress his statement to Greiber in

the second interview, asserting that the statement was

obtained in violation of Gillaum’s right against self-incrimi-

No. 02-4015 5

nation. Finally, Gillaum filed a motion to dismiss the

indictment, contending that 18 U.S.C. § 922(g)(1) is uncon-

stitutional because it exceeds Congress’s power under the

Commerce Clause of the United States Constitution.

On May 17, 2002, after an evidentiary hearing on

Gillaum’s suppression motions, a magistrate judge issued

a report and recommendation concluding that Gillaum’s

motions should be denied. On May 30, 2002, the district

court adopted the report and recommendation and denied

all of Gillaum’s motions. Gillaum’s case then proceeded to

trial.

At trial, Gillaum and two of his wife’s children testified to

the effect that the gun had been brought into his apartment

by a man named Jori Stinson. According to Gillaum, Stinson

had sold the gun to Rashan Ross, a friend of Gillaum’s who,

at the time, was staying with Gillaum and who had access

to all areas of the apartment. Gillaum testified that he told

Ross that he could not keep the gun in the apartment.

Gillaum also denied that he told Greiber that he had seen

the gun or worked ammunition through it. Sharon Sykes,

one of Gillaum’s daughters, testified that she had seen

Stinson in the apartment and had overheard Gillaum tell

Ross, “[y]ou can’t keep that --- here.” Shawn Sykes,

Gillaum’s son, testified that he was present in Gillaum’s

apartment when Stinson sold Ross the gun and was later

present when Gillaum told Ross that Ross could not keep

the gun in the apartment.

After the jury entered deliberations, problems arose. The

jury requested a transcript of certain portions of the tes-

timony of Gillaum and Greiber. Afer receiving a rough

transcript of the testimony, the jury sent a note to the court

indicating that it could not resolve discrepancies between

their memories of Gillaum’s testimony and the transcript of

his testimony. The court found that there were errors in the

6 No. 02-4015

transcript. An important error was in the transcribed

version of Gillaum’s testimony. The rough transcript had

Gillaum admitting to handling the gun. The parties agreed

that Gillaum made no such admission. The district court

found that the errors were likely to confuse the jury on

critical issues and declared a mistrial.

A second trial was held a month later and, insofar as this

appeal is concerned, it was a reprise of the first trial.

Gillaum and his children offered the same testimony as at

the first trial. The trial lasted only a day and the jury re-

turned a guilty verdict that same day.

During the preparation of the presentence report, the

government for the first time put forward a copy of a

Bureau of Alcohol, Tobacco, and Firearms ( “BATF”) trace

report concerning the handgun found in Gillaum’s apart-

ment. The report indicated that Brian Hesterly was the

original owner of the gun, having purchased it from a

sporting goods store. According to the report, a BATF agent

interviewed Hesterly. Hesterly told the agent that his home

had been burglarized and the gun was stolen. Included with

the BATF report was a copy of a police report of the

Fitchburg, Wisconsin police department’s investigation of

the burglary. The Fitchburg police report noted an interview

with Hesterly. In that interview Hesterly told a Fitchburg

police officer that he believed Stinson was the perpetrator of

the burglary.

On October 8, 2002, Gillaum filed a motion for a new trial

pursuant to Rule 33 of the Federal Rules of Criminal

Procedure. Gillaum argued that the BATF report constituted

exculpatory evidence the government failed to turn over in

violation of its obligations under Brady v. Maryland, 373 U.S.

83, 87 (1963). On February 19, 2003, the district court denied

Gillaum’s motion.

No. 02-4015 7

While Gillaum’s motion was pending, the district court

entered a judgment of conviction. Gillaum was sentenced to

188 months in prison. Gillaum’s prison sentence is to be

followed by five years of supervised release.

Gillaum is eligible for such a substantial sentence because

he has previously been convicted of aggravated battery and

attempted robbery in Cook County, Illinois and armed rob-

bery and possession with intent to deliver cocaine in Dane

County, Wisconsin. A defendant who is found guilty of

possession of a firearm in violation of 18 U.S.C. § 922(g) and

has at least three prior convictions that are considered either

a “violent felony” or a “serious drug offense” is subject to a

mandatory minimum sentence of fifteen years and a

maximum sentence of life. 18 U.S.C. § 924(e). If a defendant

does not have at least three such prior convictions he is

subject to a statutory maximum of ten years’ imprisonment.

18 U.S.C. § 924(a)(2).

II. Discussion

Gillaum raises several issues on appeal. First, he argues

that the forcible entry by the task force into his apartment

was unreasonable and violated his right under the Fourth

Amendment to be free from unreasonable searches. Gillaum

argues that the remedy for this violation should be the

suppression of evidence uncovered in the search, namely,

the handgun and ammunition. Second, Gillaum argues that

his second interview with Greiber (in the interview in

Gillaum’s bedroom) was not voluntary and violated his

right against self-incrimination. Gillaum argues that the

remedy for this violation is the suppression of his statement

to Greiber that he handled the handgun. Third, Gillaum

argues that he is entitled to a new trial because the govern-

ment failed to promptly provide him with a copy of the

8 No. 02-4015

BATF report. Fourth, Gillaum challenges the length of his

sentence. He argues that, because his Illinois convictions

were discharged and certain of his civil rights had been

restored, these convictions cannot be counted toward the

three necessary for him to be subject to the sentence en-

hancement of 18 U.S.C. § 924(e)(1). Finally, Gillaum argues

that 18 U.S.C. § 922(g)(1) represents an unconstitutional

exercise of Congress’s power under the Commerce Clause

of the United States Constitution.

A. The Forcible Entry

Gillaum first argues that the task force failed to wait a

reasonable period of time after announcing its presence and

forcibly entering his apartment. According to Gillaum, the

sound of footsteps for a limited period of time (three to five

seconds) was insufficient to justify a forcible entry. The

district court, adopting the magistrate judge’s report and

recommendation, found that the sound of footsteps moving

laterally obviated the need to wait a reasonable period of

time after a knock and announce.

We review the district court’s factual findings for clear

error in deciding a motion to suppress. United States v. Jones,

208 F.3d 603, 606 (7th Cir. 2000). In doing so, “we must keep

in mind that ‘our inquiry is factually based and requires that

we give particular deference to the district court that had

the opportunity to hear the testimony and observe the

demeanor of the witness.’ ” Id. (quoting United States v.

Williams, 945 F.2d 192, 195 (7th Cir. 1991)). This deference is

equally applicable where credibility determinations have

been made by a magistrate judge and the report and

recommendation of the magistrate judge have been adopted

by the district court. Legal determinations (including

whether facts constitute exigent circumstances) of the

No. 02-4015 9

district court justifying its decision to deny a motion to

suppress are subject to de novo review. Id. (citing United

States v. Adames, 56 F.3d 737, 747 (7th Cir. 1995)); United

States v. Howard, 961 F.2d 1265, 1267 (7th Cir. 1992).

“[T]he method of [a law enforcement] officer’s entry into a

dwelling [is] among the factors to be considered in assessing

the reasonableness of a search or seizure.” Wilson v. Arkan-

sas, 514 U.S. 927, 934 (1995); United States v. Espinoza, 256

F.3d 718, 723 (7th Cir. 2001) cert. denied, 534 U.S. 1105 (2002).

Absent exigent circumstances, law enforcement officers

must knock on the entry door of a dwelling and “announce

their identity and intention before attempting forcible

entry.” Id. (citing Wilson, 514 U.S. at 934). This court has

recognized that “a necessary corollary of the knock and

announce requirement is that officers must wait a reason-

able amount of time after announcing their intention to

serve a search warrant before attempting a forcible entry.”

Id. (citing Jones, 208 F.3d at 609-10).

In this case, however, the appropriate inquiry is not

whether Anderson waited a reasonable time before ordering

the forcible entry into the apartment. Rather, the question is

whether the sound of footsteps moving laterally in relation

to the entry door was sufficient to excuse the task force from

3

waiting a reasonable period of time. In other words, did

exigent circumstances exist that justified disregarding the

knock and announce requirement?

3

This case is not, therefore, governed by the recent decision of

the Supreme Court in United States v. Banks, 540 U.S. ___ (2003).

In that case, the Supreme Court held that 15-20 seconds was a

sufficient period of time for the police to wait when executing a

knock and announce warrant without hearing any noise or move-

ment before forcibly entering the apartment of a suspected drug

dealer. In this case there was an intervening act—the sound of

footsteps inside the apartment not moving towards the door.

10 No. 02-4015

This court has held that “[e]xigent circumstances exist . . .

when a suspect’s awareness of the search would increase the

danger to police officers or others, or when an officer must

act quickly to prevent the destruction of evidence.” Howard,

961 F.2d at 1267 (quoting United States v. Singer, 943 F.2d

758, 762 (7th Cir. 1991)). Whether such exigent circum-

stances exist “must be viewed ‘from the totality of circum-

stances known to the officers at the time [of the forcible

entry].’ ” Id. (quoting United States v. Lindsey, 877 F.2d 777,

781 (9th Cir. 1989)).

On the basis of the record before us, we cannot conclude

that the factual findings of the district court were in error.

The magistrate judge found Anderson to be a credible wit-

ness and concluded that Anderson honestly believed that he

was hearing lateral movement. Moreover, we conclude that

exigent circumstances existed that justified Anderson’s

order. Taking into consideration only those facts known to

Anderson at the time he ordered the forcible entry, the

sound of footsteps coming from inside the apartment and

not moving closer to the entry door was sufficient for

Anderson to order the forcible entry and disregard the

knock and announce requirement.

The search warrant was for drugs, specifically cocaine. Of

course, drugs, particularly cocaine, are the quintessential

form of evidence that may be easily destroyed. Anderson

testified that he was familiar with the layout of the apart-

ment and knew that the bathroom, the likely scene of any

attempt at destroying evidence, was located to one side of

the entry door. Given this, the movement in the apartment,

from one side of the apartment to the other, could have

indicated an attempt to destroy evidence. The fact that

Anderson’s fears were not realized, that the footsteps were

those of a 13-year-old girl, is immaterial. Anderson could

not have known who was moving in the apartment. Given

No. 02-4015 11

the layout of the apartment and the evidence that was the

subject of the warrant, Anderson was justified in believing

that someone might be attempting to destroy evidence. He

was, therefore, justified in ordering the forcible entry into

the apartment.

Moreover, even if we determined that the forcible entry of

the task force into Gillaum’s apartment violated Gillaum’s

rights under the Fourth Amendment, he would not be

entitled to suppression of the handgun. This court has held

that suppression is not the proper remedy for a violation of

the knock and announce rule. See United States v. Langford,

314 F.3d 892, 894 (7th Cir. 2002), cert. denied, ___ U.S. ___ ,

2003 WL 21696159 (2003).

B. Gillaum’s Interrogation

Gillaum next argues that his statements to Greiber, par-

ticularly his statements that he knew the handgun was in

the apartment and that he had handled the handgun, should

be suppressed as they were obtained in violation of his

Fourth and Fifth Amendment rights. Because we have

concluded that Gillaum’s Fourth Amendment rights were

not violated, we consider only the Fifth Amendment chal-

lenge. Whether a confession or statement to the police is

voluntary is a matter of law that this court reviews de novo.

United States v. Jordan, 223 F.3d 676, 683 (7th Cir. 2000)

(quoting United States v. D.F., 115 F.3d 413, 419 (7th Cir.

1997)). However, this court reviews “the determination of

historical facts of the case . . . for clear error.” Id.

Gillaum argues that Greiber violated his Fifth

Amendment right to remain silent. Gillaum maintains that

he invoked his right to remain silent by allegedly telling

Greiber after the interrogation in the bathroom that he did

not want to talk to Greiber anymore. Because Gillaum told

12 No. 02-4015

Greiber he no longer wished to talk, “it was incumbent

upon the police to scrupulously honor [his] assertion of his

right to remain silent.”

Gillaum principally relies on the United States Supreme

Court’s decision in Michigan v. Mosley, 423 U.S. 96 (1975). In

Mosley, the Court held that the admissibility of statements

obtained after a defendant invokes his right to remain silent

is dependent on whether the defendant’s right was “scru-

pulously honored.” 423 U.S. at 103. The Court set forth

several nonexclusive factors to determine whether interro-

gation was properly resumed. Id. These factors include “an

inquiry into the amount of time that lapsed between

interrogations; the scope of the second interrogation;

whether new Miranda warnings were given; and the degree

to which police officers pursued further interrogation once

the suspect had invoked his right to silence.” United States

v. Schwensow, 151 F.3d 650, 658 (7th Cir. 1998) (citing Mosley,

423 U.S. at 104-05).

Gillaum’s argument that his right to remain silent was not

“scrupulously honored” has a fatal defect: he never invoked

his right to remain silent. The magistrate judge heard the

testimony of Greiber and Gillaum. Greiber testified that

Gillaum did not invoke his right to remain silent. Gillaum

testified that he did invoke his right to remain silent. The

magistrate judge, with the advantage of having the wit-

nesses before him, made an explicit credibility determina-

tion finding that Gillaum never invoked his right to remain

silent. The district court adopted the report and recommen-

dation of the magistrate judge. That finding is supported by

the record and is not clearly erroneous. See United States v.

Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (quoting United

States v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999)) (“Under

the clearly erroneous standard, ‘if two permissible views

exist, the fact-finder’s choice between them cannot be clearly

No. 02-4015 13

erroneous.’ ”); id. at 872 (defendant made no showing that

a district court’s credibility determination was “exceedingly

improbable; she merely presents a contradictory statement

of facts. That is not enough.”).

Gillaum also argues that his confession was not voluntary

because of the coercive atmosphere of the interview.

Gillaum argues that the forcible entry of the task force into

his bedroom where he was sleeping, early in the morning,

the first interrogation in a small bathroom, his diabetic

condition and low blood pressure, together with statements

by Greiber that Gillaum would be better off if he provided

information concerning another drug dealer and that his

wife would be taken into custody if Gillaum did not coop-

erate, contributed to an atmosphere that made his state-

ments to Greiber involuntary under the totality of circum-

stances.

This court has held that “[a] confession is voluntary if, in

the totality of circumstances, it is the ‘product of a rational

intellect and free will and not the result of physical abuse,

psychological intimidation, or deceptive interrogation tac-

tics that have overcome the defendant’s free will.’ ” Huerta,

239 F.3d at 871 (quoting United States v. Dillon, 150 F.3d 754,

757 (7th Cir. 1998)). “[C]oercive police activity is a ‘neces-

sary predicate to the finding that a confession is not “vol-

untary” within the meaning of the Due Process Clause of

the Fourteenth Amendment.’ ” Id. (quoting Colorado v.

Connelly, 479 U.S. 157, 167 (1986)). Factors relevant to a

determination that police conduct is coercive include “the

defendant’s age, education, intelligence level, and mental

state; the length of the defendant’s detention; the nature of

the interrogations; the inclusion of advice about constitu-

tional rights; and the use of physical punishment, including

deprivation of food or sleep.” Id.

14 No. 02-4015

Considering these factors, we conclude that Gillaum’s

statements to the police were voluntary. Gillaum was thirty-

seven at the time of his arrest, and from past arrests was

personally familiar with the criminal justice system. He was

read the Miranda warnings and was asked whether he

understood the warnings. Gillaum told Greiber he un-

derstood the warnings, and told Greiber that he had been

arrested on five or six previous occasions and had the

warnings read to him. Prior to his interrogation, members

of the task force learned that Gillaum was diabetic and

asked Gillaum if he was feeling all right and if he needed

insulin or something to eat. Gillaum was also told to tell

someone if he developed problems. Gillaum indicated that

he did not need his medication.

Additionally, both interrogations together lasted less than

45 minutes and Gillaum was not handcuffed while being

questioned. Greiber testified that Gillaum was coherent and

did not appear to be under the influence of drugs or alcohol.

Greiber also testified (and Gillaum does not dispute) that he

did not use physical force or yell at Gillaum.

The parties differ as to whether Greiber threatened

Gillaum. Gillaum, as indicated above, claims that Greiber

threatened to take Mary into custody and promised to en-

sure Gillaum was treated leniently if he provided informa-

tion concerning a drug dealer. Greiber testified that he never

threatened Gillaum. Greiber testified that although he did

ask if Gillaum was willing to cooperate and talk about the

other drug dealer, Gillaum was not willing to provide any

information and Greiber did not suggest that Gillaum

would be treated more favorably if he cooperated.

Once again, the magistrate judge who received this tes-

timony chose to accept Greiber’s version of events and we

cannot say that this decision was clearly erroneous. Under

No. 02-4015 15

the totality of circumstances, Gillaum’s statements to

Greiber were voluntary.

C. The Disclosure of the BATF Report

Gillaum next argues that because the government failed

to disclose the BATF report entitles him to a new trial be-

cause the BATF report constitutes newly discovered evi-

dence or because the failure of the government to disclose

the report constitutes a Brady violation. Gillaum argues that

the report corroborates his testimony and the testimony of

two of his children that Stinson brought the gun into the

apartment and sold it to Ross. The district court held that

Gillaum had not shown that the report was material or that

the evidence would have been favorable to him and thus

denied Gillaum’s motion for a new trial.

The decision to grant a new trial is committed “to the

sound discretion of the trial judge.” United States v. Woolfolk,

197 F.3d 900, 904 (7th Cir. 1999). This court approaches

motions for a new trial “with great caution and [is] wary of

second guessing the determinations of both judge and jury.”

Id. (quoting United States v. DePriest, 6 F.3d 1201, 1216 (7th

Cir. 1993)). To be entitled to a new trial on the basis of

newly discovered evidence, a defendant must show: (1) the

defendant became aware of the evidence only after trial; (2)

the defendant could not, by exercising due diligence, have

discovered the evidence sooner; (3) the evidence is material;

and (4) in the event of a new trial, the evidence would

probably lead to an acquittal. United States v. McClurge, 311

F.3d 866, 874 (7th Cir. 2002), cert. denied, U.S. 1046, 123 S. Ct.

2101 (2003). Where the defendant alleges a Brady violation,

the defendant is entitled to a new trial when the defendant

can establish: “(1) that the prosecution suppressed evidence;

(2) that the evidence was favorable to the defense; and (3)

16 No. 02-4015

that the evidence was material to an issue at trial.” United

States v. Silva, 71 F.3d 667, 670 (7th Cir. 1995).

We address here only the materiality of the BATF re-

port—the probability that the presentation of the report

would have led to a different outcome in the trial. As this

court has held, “[e]vidence is material [under Brady] only if

there is exists a ‘reasonable probability’ that its disclosure to

the defense would have changed the result of the trial.”

United States v. Irorere, 228 F.3d 816, 829 (7th Cir. 2000). The

question is “whether in [the absence of the suppressed evi-

dence, the defendant] received a fair trial, understood as a

trial resulting in a verdict worthy of confidence. A ‘reason-

able probability’ of a different result is accordingly shown

when the government’s evidentiary suppression ‘under-

mines confidence in the outcome of the trial.’ ” Kyles v.

Whitley, 514 U.S. 419, 434 (1985) (quoting United States v.

Bagley, 473 U.S. 667, 678 (1985)). “[T]he effect that a particu-

lar piece of evidence is likely to have had on the outcome of

a trial must be determined in light of the full context of the

weight and credibility of all evidence actually presented at

trial.” Silva, 71 F.3d at 670.

In this case, the question for the jury was whether

Gillaum, a convicted felon, possessed the handgun. The

critical evidence at trial was the testimony of Gillaum and

Greiber. Greiber testified that Gillaum told him that he

knew the gun was in the bedroom, he had handled the gun,

and had cycled ammunition through it. Gillaum testified

that he had not made these statements to Greiber. Gillaum

also testified that the gun belonged to Ross and that he had

ordered Ross to get the gun out of his apartment. As the

government points out, and as the district court noted in its

decision to deny Gillaum’s motion, the government never

challenged Gillaum’s testimony concerning how the gun

came to Gillaum’s apartment.

No. 02-4015 17

Had the BATF been properly disclosed to the defense,

there would not have been a reasonable probability the re-

4

port would have changed the outcome of trial. In this case,

the history of the gun prior to entering Gillaum’s apartment

is immaterial. Put differently, a jury could have considered

the BATF report, found it persuasive, and still reached the

same decision. The BATF report, if accurate (the police

report attached to the BATF report only recited Hesterly’s

belief that the gun was stolen by Stinson), corroborates only

a portion of Gillaum’s presentation, that Jori Stinson stole

the handgun, an issue the government did not need to

dispute. Cf. United States v. Thomas, 321 F.3d 627, 634 (7th

Cir. 2003) (“[T]he government is not required to show how

[a defendant] acquired the firearm, just that he had posses-

sion of one. Even if he held a gun only to inspect it, [the

defendant] would be guilty under 18 U.S.C. § 922(g).”);

United States v. Lane, 267 F.3d 715, 718 (7th Cir. 2001)

(“Physical control over a gun is remarkably easy to effect.”).

The report adds nothing to the issue in dispute— that

Gillaum had possession of the handgun. Evidence that

corroborates a portion of a defendant’s story that is not

directly relevant to the crime charged does not justify a

finding of materiality under Brady. Duest v. Singletary, 967

F.2d 472, 479 (11th Cir. 1992), vacated on other grounds, 507

U.S. 1048 (1993); see also Lingle v. Iowa, 195 F.3d 1023, 1026

(8th Cir. 1999) (holding that medical report was not material

for Brady purposes where report, at best, showed lack of

vaginal penetration of sexual abuse victim; penetration was

not necessary for conviction of sexual abuse of a minor

4

We do not mean to suggest that the government’s actions were

proper. Like the district court, we find it difficult to understand

why the government failed to turn over the burglary report to

Gillaum. We only suggest that here, the failure does not merit a

new trial for Gillaum.

18 No. 02-4015

under Iowa law); United States v. Booz, 451 F.2d 719, 725 (3d

Cir. 1971) (finding no Brady violation where withheld

statements corroborated a portion of defendant’s story

related to the defendant’s whereabouts in the hours after the

time of crime but did not corroborate the portion of the

defendant’s story involving the defendant’s whereabouts at

the time of the crime). There is not a reasonable probability

that the BATF report would have changed the outcome

under Brady. Thus it is not probable that the introduction of

the BATF report in a new trial would lead to an acquittal

under Rule 33.

D. The Calculation of Gillaum’s Sentence

We next turn to Gillaum’s argument concerning the cal-

culation of his sentence. Gillaum argues that the district

court improperly used two Illinois convictions to reach the

three necessary for Gillaum to be considered an “armed

career criminal” subjecting him to a sentence enhancement

under 18 U.S.C. § 924(e)(1). The district court rejected

Gillaum’s argument, counted the convictions, and sentenced

Gillaum to a prison sentence of 188 months.

Under 18 U.S.C. § 924(e)(1), a defendant found guilty

of violating any provision of 18 U.S.C. § 922 “and who has

three previous convictions . . . for a violent felony or a

serious drug offense, or both” shall be sentenced to a man-

datory minimum prison sentence of fifteen years. This adds

at least five years to what he would have otherwise re-

ceived, for without three such prior convictions the sta-

tutory maximum is ten years’ imprisonment. 18 U.S.C.

§ 924(a)(2). Some convictions, however, are excluded from

this enhancement formula. Section 921(a)(20) of Title 18

provides, in part, that:

No. 02-4015 19

Any conviction which has been expunged, or set aside

or for which a person has been pardoned or has had

civil rights restored shall not be considered a conviction

for purposes of this chapter, unless such pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport, pos-

sess, or receive firearms.

18 U.S.C. § 921(a)(20). Thus, unless the defendant has been

put on notice that he may not “ship, transport, possess, or

receive firearms,” a conviction does not count as one of the

three necessary for an enhanced sentence when the defen-

dant “has had civil rights restored.”

A defendant’s civil rights are generally restored in one of

two ways. In some states, upon the completion of a criminal

defendant’s sentence, all or some of the defendant’s civil

rights are restored by the operation of statute. In other

states, however, the defendant is given documentary evi-

5

dence that his civil rights are restored. This court has held

that, where a criminal defendant is given a formal notice of

the restoration of civil rights, a court’s inquiry is limited to

the contents of that document. United States v. Glaser, 14 F.3d

1213, 1218 (7th Cir. 1994) (“When the state gives [a] person

a formal notice of the restoration of civil rights, . . . the final

sentence of § 921(a)(20) instructs us to look, not at the contents

of the state’s statute books but at the contents of the document.”)

(emphasis added). If the document specifically states that he

cannot possess or use a firearm, that civil right is obviously

not restored. But if the document restores the defendant’s

5

As we discuss below, in this case Illinois purported to do both.

It gave Gillaum a discharge order stating that two of his civil

rights were restored. In addition, however, Illinois’s Code re-

stores, with some exceptions (not important here), all of a

defendant’s civil rights upon completion of his sentence.

20 No. 02-4015

civil rights but does not provide that the defendant may not

possess firearms, the underlying conviction cannot count

towards sentence enhancement. Id. This court has explained

the rationale as follows:

If the state sends the felon a piece of paper implying

that he is no longer “convicted” and that all civil rights

have been restored, a reservation in a corner of the

state’s penal code cannot be the basis of a federal

prosecution. A state must tell the felon point blank that

weapons are not kosher. The final sentence of

§ 921(a)(20) cannot logically mean that the state

may dole out an apparently-unconditional restoration

of rights yet be silent so long as any musty statute

withholds the right to carry guns. Then the state never

would need to say a peep about guns; the statute would

self-destruct. It must mean, therefore, that the state

sometimes must tell the felon that under state law he is

not entitled to carry guns. . . . When, however, the state

sends no document granting pardon or restoring rights,

there is no potential for deception, and the question

becomes whether the particular civil right to carry guns

has been restored by law.

Erwin, 902 F.2d at 512-13 (emphasis in original).

Section 921(a)(20) has been described by this court as

“an anti-mousetrapping rule.” United States v. Erwin, 902

F.2d 510, 512 (7th Cir. 1990). The notice requirement “is

designed to prevent states from deceiving ex-convicts into

believing they have the right to carry guns.” United States v.

Wagner, 976 F.2d 354, 355 (7th Cir. 1992). Given these con-

siderations, we determine which civil rights Gillaum had

restored.

On October 27, 1983, Gillaum received an “Order For

Discharge” signed by the Governor of Illinois (the “Order”).

The Order stated that Gillaum was “finally discharged”

No. 02-4015 21

from the convictions for attempted robbery and aggravated

battery. The Order also stated that Gillaum’s “rights to vote

and administer estates are regained.” There was no notice

in the Order that Gillaum could not possess a firearm.

Gillaum argues that the Order restored his civil rights but

did not give him notice that he could not possess a firearm.

As a result, Gillaum argues, the Illinois convictions cannot

be considered qualifying felonies for sentence enhancement.

If the Illinois convictions are not considered, Gillaum would

not have the requisite three prior qualifying felonies and

would not, therefore, be subject to the mandatory 15-year

sentence.

For the purposes of § 921(a)(20), however, the Order did

not sufficiently restore Gillaum’s civil rights. In United States

v. Williams, 128 F.3d 1128, 1134 (7th Cir. 1997), this court

held that a defendant has had his civil rights restored for the

purposes of § 921(a)(20) when he has had restored his rights

6

to vote, hold office, and serve on a jury. See also United

7

States v. McKinley, 23 F.3d 181, 183 (7th Cir. 1994). The

6

In the briefs to this court and at oral argument neither party

cited to, or discussed, our decision in Williams, 128 F.3d at 1134

a case that is dispositive of the issue on appeal. We remind both

parties of the necessity of providing this court with citations to,

and discussion of, the binding authority necessary to resolve the

issues before the court, particularly where such authority is

adverse to the position taken by a party in its appeal. See, e.g.,

Model Rules of Prof’l Conduct R. 3.3(a)(2).

7

This court’s focus on these three civil rights is supported by the

decisions of at least five other circuits. United States v. Blodgett,

130 F.3d 1, 3 (1st Cir. 1997); United States v. Essig, 10 F.3d 968, 975

(3d Cir. 1993); United States v. Thomas, 991 F.2d 206, 214 (5th Cir.

1993); United States v. Driscoll, 970 F.2d 1472, 1476 (6th Cir. 1992),

abrograted on other grounds by, Hampton v. United States, 191 F.3d

(continued...)

22 No. 02-4015

Order restored only the rights to vote and administer

estates, the latter being of no consequence for this analysis.

Because the Order did not also restore the rights to serve on

a jury and hold elective office, the Order did not restore

Gillaum’s civil rights and the convictions were properly

counted.

Although the Order did not benefit Gillaum’s challenge to

his sentence, a question remains: what would have been the

outcome had Gillaum not received the Order? Under Illinois

law as it has existed at all relevant times to our analysis, a

criminal defendant’s rights to vote and hold office are

automatically restored to him at the completion of his

prison sentence. 730 ILCS 5/5-5-5(b) & (c). Further, by

virtue of his conviction, a criminal defendant loses no other

civil rights, with the exception of the right to hold licenses

to engage in certain occupations and the right to hold public

employment after conviction for certain election-related

offenses. 730 ILCS 5/5-5-5(a) (“Conviction and disposition

shall not entail the loss by the defendant of any civil rights,

except under this Section and Sections 29-6 and 29-10 of The

Election Code, as now or hereafter amended.”). Gillaum’s

Order states that his right to vote and administer estates are

regained. This could be read to imply that only those rights

were restored. But according to Illinois law, all of the civil

rights important to our analysis (voting, holding office, and

serving on a jury), were automatically restored. Since our

precedent instructs us to limit our analysis to the Order, it

might seem, at first, that for sentencing purposes Gillaum

would have been better off with no order, if without it he

had these three civil rights restored.

7

(...continued)

695, 702 (6th Cir. 1999); United States v. Dahms, 938 F.2d 131, 133

(9th Cir. 1991).

No. 02-4015 23

Ultimately, however, Gillaum would not have benefitted

by not receiving a written order. This court has held that

even though the Illinois Code automatically restores all of

an ex-convict’s civil rights, the Code’s separate prohibition

on the possession of a firearm by a convicted felon, 720 ILCS

5/24-1.1, gives the express notice required by § 921(a)(20) to

permit a court to count a conviction. Erwin, 902 F.2d at 512.

This is the case even though the restoration of a convicted

felon’s civil rights and the prohibition on the carrying of

firearms by a convicted felon are contained in different

sections of the Illinois code. Id. at 513. Thus, if for some

reason we were to disregard Gillaum’s Order and instead

apply the pertinent provisions of the Illinois Code, he would

8

still be exposed to the enhanced sentence. We would find

that although his civil rights (the three specified in Williams,

128 F.3d at 1134) were restored, we would also find that as

a convicted felon he was prohibited from possessing or

carrying a firearm.

In sum, looking just at the Order, Gillaum did not have

the necessary civil rights restored. Looking to the Illinois

Code, although Gillaum did have all three necessary civil

rights restored, the Illinois Code also put Gillaum on notice

that he could not carry a firearm, as § 921(a)(20) requires.

Either way, the Illinois convictions were properly counted.

E. The Constitutionality of the Federal Felon-In-Posses-

8

The situation would be different were the Illinois Code silent

on whether a convicted felon could possess a firearm. In such a

case, because Gillaum had all three of his civil rights restored and

he was not given notice that he could not carry a firearm, the

convictions could not be counted.

24 No. 02-4015

sion Statute

Finally, Gillaum argues that 18 U.S.C. § 922(g)(1) is an

unconstitutional exercise (facially and as applied to him) of

Congress’s power under the Commerce Clause of the

United States Constitution. Gillaum concedes, however, that

this court has previously rejected this argument. See, e.g.,

United States v. Lemons, 302 F.3d 769 (7th Cir.), cert. denied,

537 U.S. 1049 (2002); United States v. Mitchell, 299 F.3d 632

(7th Cir. 2002), cert. denied, sub nom., Peete v. United States,

537 U.S. 1130 (2003); United States v. Wesela, 223 F.3d 656

(7th Cir. 2000). He has raised the issue on appeal only so as

to preserve the argument in the event of a change in the law.

We note that Gillaum has raised this argument and we

decline to revisit our well-established precedents.

III. Conclusion

For the foregoing reasons, the decisions of the district

court are AFFIRMED.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-23-04