United States v. Johnson

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2690

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

R ONALD L. JOHNSON, also known as

JOSHUA M C G HEE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-CR-121—Rudolph T. Randa, Judge.

A RGUED JANUARY 9, 2012—D ECIDED M AY 24, 2012

Before F LAUM and K ANNE, Circuit Judges, and C HANG ,

District Judge.Œ

K ANNE, Circuit Judge. Ronald L. Johnson was con-

victed of possession with intent to distribute 50 grams

or more of crack cocaine and possession of a firearm by

Œ

The Honorable Edmond E. Chang, United States District Court

for the Northern District of Illinois, sitting by designation.

2 No. 11-2690

a convicted felon. He was sentenced to 300 months’

imprisonment. On appeal, Johnson challenges his con-

viction and sentence on several grounds, arguing that

(1) his motion to suppress was improperly denied; (2) the

trial judge should have recused himself sua sponte; (3) an

aiding and abetting instruction was given in error; (4) the

obstruction of justice enhancement should not apply;

and (5) the sentencing judge improperly determined

that Johnson is a career offender. After considering all

of these arguments, we affirm Johnson’s conviction and

sentence.

I. B ACKGROUND

Sometime in late 2008, an informant told Milwaukee

police officers that a man known as “Loc” was dealing

large amounts of cocaine out of his residence on West Vliet

Street, part of the Hillside Terrace Housing Project in

Milwaukee. Loc and his girlfriend, Nina Fenske, resided

in Unit 301, although only Fenske’s name was on the

lease. The informant also told officers that Loc had a

gun and prior criminal history. Armed with this infor-

mation, Milwaukee police officers conducted surveillance

of Unit 301 for approximately two months. During

this time, they observed only Fenske and a man later

identified as Johnson coming and going from the residence.

On the morning of January 29, 2009, police officers

arranged to execute a search warrant at the West Vliet

address. Officers Todd Bohlen and James Henry set up

surveillance in an unmarked police car. They observed

Johnson exit the residence and drive away in a silver

No. 11-2690 3

Chevy Impala. Officers Bohlen and Henry followed

Johnson for approximately four blocks before pulling

him over, even though Johnson did not commit a traffic

violation. Officer Bohlen testified at the suppression

hearing that the purpose of this stop was to ensure

the preservation of evidence and safety of the officers

while they executed the search warrant.

Officer Bohlen approached Johnson’s vehicle and re-

quested his driver’s license. In response, Johnson handed

Officer Bohlen a driver’s license issued in the name of

Joshua McGhee. 1 Officer Bohlen then inquired if Johnson

had any aliases, to which Johnson replied, “Loc, Ron Loc.”

Upon request, Johnson also provided his current address

on West Vliet Street. After this short exchange, Officer

Bohlen asked Johnson to exit the vehicle to conduct a pat-

down for safety purposes. During this pat-down, Officer

Bohlen asked if Johnson had anything on him and

Johnson stated that he had some weed in his shoe.

Johnson was then placed in handcuffs and taken to

Officer Bohlen’s vehicle. While Johnson sat in the back

seat, Officer Bohlen removed Johnson’s left shoe and

discovered a small baggie of marijuana.

At this point, Officer Bohlen informed Johnson of

the search warrant for his residence on West Vliet Street.

Johnson remained in the back of Officer Bohlen’s vehicle

while Officer Bohlen called for assistance and a police

wagon. Approximately thirty to forty minutes after

the initial traffic stop, Johnson was transported to his

1

Joshua McGhee was later identified as Johnson’s brother.

4 No. 11-2690

residence in the police wagon, where he remained in

handcuffs while officers searched his apartment.

As Johnson waited in the police wagon, Officer Bohlen

read a copy of the search warrant to him. Johnson and

Officer Bohlen disagree on the ensuing dialogue. Officer

Bohlen testified that immediately after he read the

search warrant aloud, Johnson confessed that everything

in the apartment was his. In contrast, Johnson testified

that Officer Bohlen read the warrant and then asked

him, “Is there anything that you want to talk to me

about, that you want to tell me right now?” (Supp. Tr. at

87.) Johnson responded that he didn’t know what Officer

Bohlen was talking about, to which Officer Bohlen

replied, “Well, you know, if we go in here and find any-

thing we cannot only arrest you but we can arrest who’s

ever [sic] on the lease.” Id. According to Johnson, it was

only after Officer Bohlen made this statement that

Johnson confessed that anything found in the apart-

ment belonged to him.

Following Johnson’s confession, he and Officer Bohlen

spoke for a while longer, although Officer Bohlen did not

recall the specifics of their conversation. At one point,

Officer Bohlen asked Johnson for the combination to a

safe discovered in the apartment, but Johnson told

Officer Bohlen the safe belonged to his girlfriend.

Johnson confessed during the suppression hearing that

this was a lie and he later gave the combination to

officers at the police station. Officers discovered a

firearm and a large amount of cash in the safe.

In the end, police officers recovered crack cocaine,

marijuana, ecstasy pills, a scale, a firearm, and $19,940

No. 11-2690 5

cash from the apartment. The search lasted approxi-

mately one hour, after which Johnson was transported

to the Milwaukee police department’s administration

building for booking. There, Johnson was taken to an

interview room. According to Johnson’s testimony,

Officer Bohlen entered the room first. He asked Johnson

if he knew about the items found in the apartment,

implied that Johnson’s girlfriend would be kicked off

of housing assistance, and asked if Johnson wanted his

girlfriend’s daughter to end up in state custody. Johnson

maintains that no one else was present during this ques-

tioning. According to the government, Officer Andrew

Bell advised Johnson of his Miranda rights and inter-

viewed Johnson for approximately forty minutes. Officer

Bohlen was present for a majority of the interview but

did not enter the room until after Officer Bell began

questioning Johnson. During the interview, Johnson

admitted that the apartment contained a scale, crack

cocaine on a shelf in the bedroom closet, and a safe

that held a gun and approximately $20,000. He also

discussed his knowledge of drug distribution and esti-

mated that in two years he sold approximately ten to

fifteen kilograms of cocaine. He identified his supplier

as a man from Chicago named “Simon,” and remarked

that Simon never brought the cocaine to Johnson’s house.

On March 24, 2009, a federal grand jury charged

Johnson with possession of cocaine base with intent to

distribute, possession of MDMA (Ecstasy) with intent

to distribute, and possession of a firearm by a convicted

felon. Johnson’s case was docketed as 09-CR-83 and

assigned to the Honorable J.P. Stadtmueller. Johnson

6 No. 11-2690

filed a motion to suppress, which argued that Johnson’s

statements were obtained in violation of Miranda v. Ari-

zona, 384 U.S. 436 (1966). This motion was assigned to

Magistrate Judge Aaron E. Goodstein. While the motion

to suppress was pending, Judge Stadtmueller recused

himself from the case, citing 28 U.S.C. § 455(a) and (b)(3).

Judge Stadtmueller provided no additional explanation

for his recusal. The Honorable Rudolph T. Randa was

thereafter assigned to the case.

The magistrate judge held an evidentiary hearing

on Johnson’s motion to suppress on September 2, 2009.

Following this hearing and additional briefing, Magistrate

Judge Goodstein recommended that the motion be de-

nied. Judge Randa adopted this recommendation

on February 24, 2010, and scheduled Johnson’s trial for

June 1, 2010. In May, Johnson filed a motion to

dismiss, arguing that his trial was not conducted

within the time requirements of the Speedy Trial Act, 18

U.S.C. § 3162(a)(2). The government agreed that a speedy

trial violation occurred but asked that the case be dis-

missed without prejudice. Judge Randa dismissed the

case without prejudice on June 10, 2010.

On June 22, 2010, a federal grand jury returned another

three-count indictment against Johnson based upon the

same evidence as Johnson’s first case. This second case,

docketed as 10-CR-121, was again assigned to Judge

Stadtmueller. Johnson was arraigned for a second time

and new motions deadlines were set. This time, Johnson

filed a motion to suppress based on an alleged Franks

violation. See Franks v. Delaware, 438 U.S. 154, 155-56

No. 11-2690 7

(1978) (permitting a defendant to challenge the constitu-

tionality of a search if he can show intentional or

reckless misrepresentations in the warrant affidavit).

Johnson did not file a Miranda motion in the second case

and his Franks motion was ultimately denied.

Judge Stadtmueller presided over Johnson’s two-day

jury trial. Johnson testified and claimed that his

girlfriend’s friend, Jamie, and her boyfriend, Simon, had

moved into the residence on West Vliet Street. Johnson

felt Simon staying there was a problem because he was

selling drugs from that address. Johnson admitted that

the gun belonged to him but denied that the drugs were

his. He stated that he lied to officers following his arrest

because he was concerned that they would arrest his

girlfriend instead. After the close of evidence, Judge

Stadtmueller instructed the jury and, at the government’s

request and over Johnson’s objection, included an aiding

and abetting instruction on the basis of Johnson’s testi-

mony that Simon sold drugs out of the West Vliet ad-

dress. The jury convicted Johnson on two counts: posses-

sion with intent to distribute 50 grams or more of crack

cocaine in violation of 21 U.S.C. § 841(a)(1), and posses-

sion of a firearm by a convicted felon in violation

of 18 U.S.C. § 922(g)(1).2

Prior to sentencing, Judge Stadtmueller asked the

parties to brief the applicability of the Fair Sentencing

Act of 2010 (“FSA”) to Johnson’s case. On April 8, 2011,

2

Count Two, possession with intent to distribute MDMA, was

dismissed prior to trial.

8 No. 11-2690

the government sent a letter to Judge Stadtmueller

noting that, because the jury found that Johnson was

liable for 280 grams or more of crack cocaine, the retroac-

tive application of the FSA was not at issue. In other

words, the drug amount found by the jury was enough

to trigger a ten-year mandatory minimum sentence,

even under the FSA’s amendments to 21 U.S.C. § 841.

On the same day this letter was received by the district

court, Judge Stadtmueller recused himself from the

case, again citing 28 U.S.C. § 455(a) and (b)(3). The case

was reassigned to Judge Randa.

At sentencing, Judge Randa was tasked with deter-

mining an appropriate sentence for Johnson, despite

not having presided over the trial. Judge Randa first

concluded that Johnson was a career offender based on

his prior convictions for aggravated robbery, aggravated

discharge of a firearm, and aggravated battery with a

firearm. He also applied sentencing enhancements

for possession of a firearm and obstruction of justice.

Johnson received a sentence of 300 months on Count One

and 120 months on Count Three, to run concurrent to

each other and to the state court sentences Johnson

was also serving. Johnson filed this timely appeal.

II. A NALYSIS

As noted previously, Johnson challenges several

aspects of his conviction and sentence, including (1) the

denial of his motion to suppress; (2) Judge Stadtmueller’s

refusal to recuse himself sua sponte; (3) the aiding and

abetting instruction given at trial; (4) the application of

No. 11-2690 9

the obstruction of justice enhancement; and (5) the

finding that Johnson is a career offender. Following oral

argument, we issued an opinion addressing whether

this court may consider Johnson’s suppression argu-

ment since he did not renew his motion to suppress in

the second case. In that opinion, we held that Johnson’s

argument was merely forfeited and could be reviewed

for plain error. Accordingly, we granted Johnson’s

motion to expand the record on appeal and permitted

Johnson and the government to file supplemental

briefs addressing the denial of Johnson’s motion to sup-

press in 09-CR-83. United States v. Johnson, 668 F.3d

540, 543 (7th Cir. 2012). We withheld consideration of

Johnson’s additional challenges until after the record

was supplemented and the parties had filed their briefs.

Id. The parties now having filed their supplemental

briefs, this matter is ripe for decision.

A. Motion to Suppress

Johnson first challenges the district court’s denial of his

motion to suppress statements allegedly elicited in viola-

tion of Miranda v. Arizona, 384 U.S. 436 (1966). Because

this argument was forfeited by Johnson’s failure to raise

it in his second case, we review the district court’s

holding for plain error. Johnson, 668 F.3d at 542.3 Applying

3

Johnson argues that we should reconsider our finding of two

distinguishable cases (09-CR-83 and 10-CR-121), arguing that

his second case should be treated like a superseding indict-

(continued...)

10 No. 11-2690

this standard, we reverse only when we find: “(1) an error

or defect (2) that is clear or obvious (3) affecting the de-

fendant’s substantial rights (4) and seriously impugning

the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Anderson, 604 F.3d 997,

1002 (7th Cir. 2010).

The Supreme Court’s holding in Miranda was

designed to safeguard a suspect’s Fifth Amendment

3

(...continued)

ment. We reject Johnson’s analogy, and find support for this

position in our sister circuit’s precedent:

[T]here are crucial distinctions between a superseding

indictment and a reindictment. Hoslett’s separate

indictment on the firearm charges constituted an

entirely new case. The charges were adjudicated in

a separate trial. Hoslett was subjected to a separate

detention hearing in the new case. While a super-

seding indictment requires a rearraignment, it does

not create a new case with its own, independent iden-

tity. The district court established new and different

motion deadlines for the second case. Hoslett filed a

separate motion to suppress in that case. . . . In sum,

when a superseding indictment is filed there is only

one criminal action; a reindictment results in two. The

distinction makes all the difference here.

United States v. Hoslett, 998 F.2d 648, 658 (9th Cir. 1993). Al-

though Hoslett addressed charges dismissed on the motion of

the government which were later refiled in a new indictment,

we believe the Ninth Circuit’s discussion is also relevant to

this case. Accordingly, we affirm our prior ruling that the

two cases at issue here are two distinct cases.

No. 11-2690 11

constitutional guarantee against self-incrimination. J.D.B.

v. North Carolina, 131 S. Ct. 2394, 2401 (2011). Under

Miranda and its progeny, “the government may not use

statements stemming from the custodial interrogation of

a defendant unless the government has utilized

procedural safeguards effective to secure the privilege

against self-incrimination.” United States v. Ambrose, 668

F.3d 943, 954 (7th Cir. 2012) (citing Berkemer v. McCarty,

468 U.S. 420, 428 (1984)). In order for Miranda’s

safeguards to apply, a suspect must be in “custody” and

subject to “interrogation.” A suspect is in custody for

purposes of Miranda if, based on a totality of the circum-

stances, a reasonable person in the suspect’s position

would not have believed he was free to leave. See United

States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011). To

constitute custodial interrogation, a police officer’s

words or actions must be reasonably likely to elicit an

incriminating response. Rhode Island v. Innis, 446 U.S. 291,

301 (1980). If a suspect makes an incriminating state-

ment during custodial interrogation, the burden is

on the government to show the suspect “voluntarily,

knowingly and intelligently” waived his rights. J.D.B.,

131 S. Ct. at 2401 (quoting Miranda, 384 U.S. at 444).

Johnson gave three statements to police officers: (1) after

he was pulled over, Johnson admitted his shoe con-

tained a bag of marijuana; (2) after Officer Bohlen read

the search warrant to him, Johnson confessed that every-

thing in the apartment was his; and (3) after he

was taken to the police station, Johnson spoke with

Officers Bell and Bohlen about the drugs, gun, and money

found at the West Vliet residence. We address each of

these statements in turn.

12 No. 11-2690

1. Possession of Marijuana

Johnson gave his first incriminating statement after

he was pulled over by Officer Bohlen. Officer Bohlen

testified that he detained Johnson for purposes of exe-

cuting the search warrant, although he did not communi-

cate his intent to Johnson. After approaching Johnson’s

vehicle, Officer Bohlen requested his driver’s license

and inquired about his address and aliases. Officer Bohlen

then asked Johnson to exit the vehicle. As Officer Bohlen

was conducting a pat-down for weapons, he asked John-

son, “Do you have anything on you you shouldn’t

have?” (Supp. Tr. at 22.) Johnson replied that he had

marijuana in his shoe. At this point, Johnson was placed

in handcuffs. Officer Bohlen did not read Johnson his

Miranda rights at any time during this exchange.

In Johnson’s first case, the district court cited several

reasons for denying Johnson’s motion to suppress as to

his admission of possessing marijuana. First, the district

court found that, prior to Johnson’s confession, a rea-

sonable person in Johnson’s position would have

believed he was detained pursuant to a routine traffic

stop. Under Terry v. Ohio, 392 U.S. 1 (1968), a person

subject to a routine traffic stop is not in custody for

Miranda purposes. Accordingly, because all relevant

questioning occurred prior to Johnson’s arrest, he was

not in custody and there was no Miranda violation. In

addition, the district court held that Officer Bohlen’s

questions did not amount to interrogation. Preliminary

questions about a suspect’s identity and informa-

tion to confirm or dispel an officer’s suspicions are

No. 11-2690 13

permissible prior to any Miranda warnings. Finally, the

district court believed Officer Bohlen’s question about

whether Johnson had anything on him fell within the

public safety exception to Miranda, as articulated in

New York v. Quarles, 467 U.S. 649 (1984). We agree with

the district court’s reasoning.

The Supreme Court has held that police officers may

conduct an investigatory stop of an individual if they

have “specific and articulable facts sufficient to give rise

to a reasonable suspicion that a person has committed or

is committing a crime.” United States v. Johnson, 910 F.2d

1506, 1508 (7th Cir. 1990) (citing United States v. Brignoni-

Ponce, 422 U.S. 873, 881-82 (1975); Terry v. Ohio, 392 U.S. 1

(1968)). A typical traffic stop is analogous to a Terry

stop, and during these stops an officer is permitted to

ask questions to determine an individual’s identity and

to obtain information confirming an officer’s suspicions.

See Berkemer, 468 U.S. at 439. Given the nonthreatening

nature of this sort of detention, the Supreme Court has

held that “persons temporarily detained pursuant to

such stops are not ‘in custody’ for the purposes of

Miranda.” Id. at 440. Accordingly, we have previously

determined that Miranda warnings are not required

during Terry investigatory stops. See United States v.

Boden, 854 F.2d 983, 995 (7th Cir. 1988); accord United

States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994) (“While

detention during the execution of a search warrant is not

a traditional Terry stop, it is sufficiently analogous for us

to conclude that, in the usual case, Miranda warnings

are not required.” (footnote omitted)).

14 No. 11-2690

This is not to say that all investigatory stops are “typical”

or that Miranda warnings are never required. In this case,

Johnson argues that he was subject to more than a Terry

stop and was, in fact, in custody while Officer Bohlen

questioned him. The test for determining whether a

suspect is in custody during a Terry stop looks to “how

a reasonable man in the suspect’s position would

have understood his situation.” United States v. Wyatt,

179 F.3d 532, 536 (7th Cir. 1999) (quotation marks and

citation omitted). This inquiry is objective and “[n]either

the subjective views of the suspect being questioned

nor that of the officer engaging in the questioning is

considered.” Ambrose, 668 F.3d at 954. From this perspec-

tive, we agree with the district court’s conclusion that

Johnson would have understood his situation as a

routine traffic stop. Nothing in the record indicates that

Johnson was aware that officers were conducting sur-

veillance of his residence or that they had obtained a

search warrant. Instead, Johnson was pulled over while

driving his vehicle and Officer Bohlen requested his

driver’s license. A reasonable person would view this

situation as a typical traffic stop.

Nor was Johnson in custody after he got out of his

vehicle, prior to his confession that his shoe contained

marijuana. We have previously rejected the argument

that a reasonable person subject to a pat-down would

not feel free to leave, see Wyatt, 179 F.3d at 536, and there

is no other evidence to support such a claim. For

instance, no weapons were drawn, Johnson was not told

he was under arrest, Johnson was not handcuffed, only

two plainclothes officers were present, the encounter

No. 11-2690 15

occurred on a public roadway, and there was no other

display of force or physical restraint.4 Based on the

totality of the circumstances preceding Johnson’s con-

fession, a reasonable person in Johnson’s position

would have felt free to leave and he was not in custody

for Miranda purposes. Thus, the district court did not

plainly err in refusing to suppress Johnson’s con-

fession that he had marijuana in his shoe.

2. Ownership of All Items in the Apartment

Johnson made his second confession after he was

placed under arrest and transported to the West Vliet

address. At this point in time, it is undisputed that

Johnson was in custody and had not been read his

4

In determining whether a reasonable person would have

believed he or she was free to leave, 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 deprived

the defendant of documents she needed to continue

on her way; and (7) whether the officers’ tone of voice

was such that their requests would likely be obeyed.

United States v. Barker, 467 F.3d 625, 629 (7th Cir. 2006)

(quoting Wyatt, 179 F.3d at 535).

16 No. 11-2690

Miranda rights. Thus, the central issue is whether

Johnson was subjected to interrogation prior to stating

that everything in the apartment was his.

At the suppression hearing, Officer Bohlen and

Johnson offered different accounts of their interaction

at the West Vliet address. Officer Bohlen testified that

he read a copy of the search warrant from top to bottom

as Johnson sat in the back of the police wagon. After

he read the last line, Johnson stated, “Everything in

the apartment’s mine, it’s all mine.” (Supp. Tr. at 28.)

Officer Bohlen also testified that he did not question

Johnson in any way about the search warrant prior

to Johnson’s admission. In contrast, Johnson testified

that Officer Bohlen read the search warrant aloud and

then asked, “Is there anything that you want to talk to

me about, that you want to tell me right now?” Id. at 87.

In addition, Officer Bohlen stated, “If we find anything

in the apartment I can arrest not only you but who’s

ever [sic] on the lease.” Id. According to Johnson, it

was only after this statement from Officer Bohlen that

Johnson admitted everything in the apartment belonged

to him.

Even if a suspect is in custody, his statements are

not necessarily the product of interrogation such that

Miranda’s requirements are triggered. See Ambrose, 668

F.3d at 955 (quoting United States v. Swanson, 635 F.3d

995, 1002 (7th Cir. 2011)). For instance, “voluntary in-

criminating statements are not subject to Miranda

warnings and are admissible as evidence.” Swanson, 635

F.3d at 1001-02; Ambrose, 668 F.3d at 955 (“Law enforce-

No. 11-2690 17

ment officers are not prohibited from merely listening to

a person’s voluntary statement.”). As noted previously,

the test for determining whether a suspect was sub-

jected to interrogation is whether a reasonable objec-

tive observer would believe that an officer’s express

questioning, words, or actions were “reasonably likely

to elicit an incriminating response.” Swanson, 635 F.3d

at 1002 (quoting United States v. Abdulla, 294 F.3d 830,

834 (7th Cir. 2002)). The focus is on the suspect’s percep-

tions rather than the intent of the police. Innis, 446 U.S.

at 301.

The district court determined that Officer Bohlen’s

testimony was more credible, given Johnson’s “obvious

motive to be untruthful.” In addition, noting Johnson’s

willingness to cooperate with authorities and his

testimony that he lied to officers about the ownership

of the safe in the apartment, the magistrate judge found

Johnson’s version of the encounter between him and

Officer Bohlen to be incredible. Thus, the court held

that Johnson’s statement was spontaneous and unsolicited.

We give special deference to a district court on matters

of witness credibility in light of the district court’s “supe-

rior vantage point.” United States v. Pillado, 656 F.3d

754, 770 (7th Cir. 2011) (quoting United States v. Whited,

539 F.3d 693, 697 (7th Cir. 2008)). In other words, the

district court’s decision is entitled to deference because

the magistrate judge actually heard the testimony and

observed the demeanor of the witnesses in making

his credibility determination. See United States v.

McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993). In light of

18 No. 11-2690

this standard and the record before us, we see no

reason to upset the district court’s credibility determina-

tion.

But our analysis does not end here. Even acknowl-

edging the magistrate judge’s credibility finding, Johnson

argues that Officer Bohlen’s own testimony provides

enough evidence to establish that Johnson was subjected

to interrogation. Specifically, Johnson asserts that Officer

Bohlen’s act of reading the search warrant aloud was

designed to elicit an incriminating response. Interrogation

need not be express questioning; in fact, “[a]n officer

can ‘interrogate’ a suspect for Miranda purposes without

uttering a question.” United States v. Richardson, 657 F.3d

521, 525 (7th Cir. 2011) (citing Innis, 446 U.S. at 300-01). For

instance, in Rhode Island v. Innis, a man accused of

killing another man with a shotgun was arrested and

placed in the back of a police car. 446 U.S. at 294-95. On

the way to the police station, the officers transporting

the defendant talked about the missing murder weapon,

noting that there were several handicapped children in

that area who might happen upon the weapon and hurt

themselves. Id. Apparently concerned for these children,

the defendant interrupted the conversation to tell the

officers where the shotgun was located. Id. at 295. The

Supreme Court held that the defendant was not interro-

gated by police officers because there was nothing to

suggest that the officers’ conversation was reasonably

likely to elicit an incriminating response. Id. at 302-03

(“Given the fact that the entire conversation appears

to have consisted of no more than a few off hand

remarks, we cannot say that the officers should have

No. 11-2690 19

known that it was reasonably likely that Innis would so

respond.”). The fact that the defendant may have been

subjected to “subtle compulsion” was not enough for

the Court to find a Miranda violation. Id. at 303.

In this case, Officer Bohlen read the search warrant to

Johnson as Johnson sat in the police wagon outside

the residence. Officer Bohlen testified that he ap-

proached Johnson and stated, “Okay, now I’m going to

read the warrant to you.” (Supp. Tr. at 52.) After he

read the warrant aloud, Johnson declared that

everything in the apartment was his. In light of these

facts, we find that Officer Bohlen’s actions do not consti-

tute interrogation for purposes of Miranda. This case

is analogous to those cases in which we have held

that merely reciting the evidence against a suspect is

not the functional equivalent of an interrogation. See, e.g.,

United States v. Vallar, 635 F.3d 271, 285 (7th Cir. 2011)

(“Merely apprising Vallar of the evidence against him

by playing tapes implicating him in the conspiracy did

not constitute interrogation.”); Easley v. Frey, 433 F.3d

969, 974 (7th Cir. 2006) (advising a suspect of witness

testimony implicating him in a crime that could subject

him to the death penalty was not interrogation); United

States v. Sutton, 77 F. App’x 892, 895 (7th Cir. 2003)

(nonprecedential) (officer’s statement to defendant that

he found marijuana and a gun on the defendant’s

property was not an interrogation, and defendant’s

interjection that the items belonged to him and not his

sons was an admissible, volunteered statement). By

reading the warrant aloud, Officer Bohlen informed

Johnson of the items officers had probable cause to search

20 No. 11-2690

for in his apartment, essentially advising Johnson of

potentially incriminating evidence that could be used

against him. Johnson then made a voluntary statement

in response.

Cases from our sister circuits support this holding. See,

e.g., United States v. Genao, 281 F.3d 305, 310-11 (1st Cir.

2002) (detective’s actions did not constitute interroga-

tion where detective showed suspect items seized from

his apartment and stated, “we’ve got a problem here”);

United States v. Payne, 954 F.2d 199, 202-03 (4th Cir. 1992)

(officer’s statement to defendant that they found a gun

in his house was not interrogation); Shedelbower v. Estelle,

885 F.2d 570, 572-73 (9th Cir. 1989) (informing suspect

that his accomplice was in custody and the victim

had identified the suspect was not the functional equiva-

lent of interrogation). We have previously cited with

approval the Fourth Circuit’s reasoning in Payne, noting

that providing such information to a suspect may even

be helpful to him because “ ‘information about the

evidence against a suspect may also contribute to the

intelligent exercise of his judgment regarding what

course of conduct to follow.’ ” Easley, 433 F.3d at 974

(quoting Payne, 954 F.2d at 202). “Like the Fourth Circuit,

we do not believe that the provision of information, even

if its weight might move a suspect to speak, amounts

to an impermissible ‘psychological ploy.’ ” Id.

Here, Officer Bohlen read the search warrant to

Johnson, informing him of the items the officers were

searching for within his apartment. Like Innis, there

was nothing to indicate that reading the search

No. 11-2690 21

warrant aloud would prompt Johnson to confess to

owning everything in the apartment in order to protect

his girlfriend. The only indication that Officer Bohlen

was trying to play on Johnson’s fears that his girlfriend

would be in trouble comes from Johnson’s own

discredited testimony at the suppression hearing. Ac-

cordingly, the district court properly denied the motion

to suppress Johnson’s confession that everything in

the apartment belonged to him.

3. Johnson’s Statements at the Police Station

Johnson’s final statement to police officers occurred

during his interview at the police station with Officers Bell

and Bohlen. During this interview, which was recorded

and is part of the record, Officer Bell first introduced

himself to Johnson and asked if Johnson needed any-

thing. Johnson’s handcuffs were removed and he

was provided water and cigarettes. Officer Bell then

obtained background information from Johnson con-

cerning his personal history, family, and education.

After getting this basic information, Officer Bell read

Johnson his Miranda rights and Johnson indicated

that he understood those rights. Johnson then told

the officers what he knew about the items found in

the apartment and discussed his drug distribution activi-

ties in detail. As noted by Magistrate Judge Goodstein,

the entire interview was cordial and no threats were

made by either of the officers.

Johnson believes the statements he gave at the police

station should be excluded because they were tainted

22 No. 11-2690

by Officer Bohlen’s prior actions. To support this argu-

ment, Johnson attempts to stretch the holding of Missouri

v. Seibert, 542 U.S. 600 (2004), to this case. In Seibert, the

Supreme Court was confronted with a practice used by

some police forces of failing to provide Miranda

warnings during custodial interrogation until after the

interrogation produced a confession. Id. at 604. After a

confession was obtained, the interrogating officer

would read the suspect his Miranda rights and then

proceed through a similar line of questioning. Id. This

“question first, warn later” approach was rejected by

the Supreme Court in a plurality opinion which resulted

in two potential tests for evaluating such practices.5

5

Under the plurality’s test, the court determines whether a two-

step interrogation procedure’s “midstream recitation of

warnings after interrogation and unwarned confession” is

effective enough to accomplish the purposes of Miranda.

Seibert, 542 U.S. at 604. The court looks to: “the completeness

and detail of the questions and answers in the first round of

interrogation, the overlapping content of the two statements,

the timing and setting of the first and the second, the

continuity of police personnel, and the degree to which the

interrogator’s questions treated the second round as

continuous with the first.” Id. at 615. The second test, from

Justice Kennedy’s concurrence, looks to an interrogator’s

intent in using a deliberate two-step interrogation procedure.

Id. at 622. If this deliberate procedure is used, “postwarning

statements that are related to the substance of prewarning

statements must be excluded unless curative measures are

taken before the postwarning statement is made.” Id. Such

(continued...)

No. 11-2690 23

We have yet to determine which test governs in this

circuit. See United States v. Lee, 618 F.3d 667, 678 (7th

Cir. 2010). As in Lee, we need not determine which test

applies at this juncture because the facts of this case do

not meet the requirements of either test. See id.

Johnson’s case fails to satisfy either Seibert test because

he has not shown the existence of a prewarning

custodial interrogation. Thus, his case differs markedly

from Seibert. In that case, Seibert was arrested and taken

to the police station prior to any questioning. 542 U.S.

at 604-05. Seibert was clearly in custody and the officers

engaged in interrogation lasting thirty to forty minutes.

See id. After Seibert confessed, officers gave her a twenty-

minute break followed by Miranda warnings and a sec-

ond confession. Id. at 605. In contrast, as we have

already noted, Officer Bohlen’s first contact with Johnson

occurred during a traffic stop in which Johnson was

not in custody, and thus not subjected to custodial inter-

rogation. In addition, although Johnson was in custody

at the time Officer Bohlen read the search warrant

aloud, we have already determined that this action did

not amount to interrogation. Based on these findings, at

no time prior to Johnson’s interrogation at the police

station were police officers required to read Johnson

his Miranda warnings. This case is simply not the type

of situation Seibert intended to address.

5

(...continued)

curative measures may include a substantial break in time

and circumstances such that a reasonable person would under-

stand the effect of the Miranda waiver. Id.

24 No. 11-2690

Finding that the district court did not plainly err in

denying Johnson’s motion to suppress, we now turn

to Johnson’s remaining arguments on appeal.

B. Recusal

In Johnson’s first case (09-CR-83), Judge Stadtmueller

recused himself five months into the case, noting that

he was required to recuse under 28 U.S.C. § 455(a) and

(b)(3). In Johnson’s second case (10-CR-121), Judge

Stadtmueller presided over the trial, but recused

himself prior to sentencing, citing the same statutory

authority as the first case. Johnson now argues for the

first time on appeal that Judge Stadtmueller’s failure

to recuse himself sua sponte in the second case deprived

Johnson of having the same judge preside over both

his trial and sentencing, and implicated the public

interest in the impartial administration of justice.

Under § 455(a), “[a]ny justice, judge, or magistrate

judge of the United States shall disqualify himself in

any proceeding in which his impartiality might

reasonably be questioned.” A judge shall also disqualify

himself “[w]here he has served in governmental employ-

ment and in such capacity participated as counsel,

adviser or material witness concerning the proceeding

or expressed an opinion concerning the merits of the

particular case in controversy.” 28 U.S.C. § 455(b)(3). In

this circuit, a § 455(a) claim of bias is not properly pre-

served for appeal unless a defendant seeks a writ of

mandamus. United States v. Diekemper, 604 F.3d 345, 351-

52 (7th Cir. 2010). This rule upholds the general

No. 11-2690 25

principle that a post hoc motion for recusal does little

to remedy a § 455(a) violation, as the purpose of § 455(a)

is to preserve the appearance of impartiality. Id. at

352. Although this case presents somewhat unusual

procedural circumstances, the same reasoning applies.

Therefore, we apply the same standard. Accord United

States v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001) (“Because

a party waives his § 455(a) recusal argument by failing

to petition for a writ of mandamus, it follows that he

also waives it by failing altogether to raise it at the

district court level.”). Thus, Johnson’s § 455(a) challenge

is waived.

“ ‘It is less clear under our case law whether we may

review a refusal to recuse under section 455(b) when

the argument is raised for the first time on appeal,’ but

assuming that we can, that review will be for clear er-

ror.” Diekemper, 604 F.3d at 351 (quoting United States v.

Smith, 210 F.3d 760, 764 (7th Cir. 2000)). As in Diekemper,

Johnson did not raise the issue of recusal before the

district court but now argues that the judge had a duty

to recuse himself sua sponte. See id. Accordingly, we

review Johnson’s § 455(b)(3) challenge under a clear

error standard.

Johnson cannot meet his burden under this standard

of review. To show plain error, Johnson is required to

demonstrate that Judge Stadtmueller’s “participation in

the disposition of the case was an obvious or clear error

and that it affected his substantial rights.” Ruzzano,

247 F.3d at 695. The evidence before the court indicates

that Johnson received a fair trial and the fairness and

26 No. 11-2690

integrity of the judicial proceedings were unaffected

by Judge Stadtmueller’s presence. There is no actual

evidence of any bias or impartiality during trial. At

most, Johnson was denied the benefit of having the

same judge preside over his trial and sentencing. But

all judges are instructed to “approach a sentencing

hearing with an open mind and rely on meaningful

consideration of the evidence presented at the hearing,”

United States v. Pulley, 601 F.3d 660, 665 (7th Cir. 2010), and

there is no indication that Johnson was prejudiced at

his sentencing hearing because Judge Randa presided

instead of Judge Stadtmueller.6 Accordingly, Johnson’s

§ 455(b) argument fails because there was no clear error.

C. Aiding and Abetting Jury Instruction

Johnson next challenges the district court’s decision

to give an aiding and abetting jury instruction, arguing

that the government failed to produce sufficient

evidence at trial to support such an instruction. A

district court’s decision to give an aiding and abetting

instruction is reviewed for an abuse of discretion. United

States v. Powell, 652 F.3d 702, 708 (7th Cir. 2011). Under-

lying issues of law are reviewed de novo. Id.

Under 18 U.S.C. § 2(a), “[w]hoever commits an offense

against the United States or aids, abets, counsels, com-

mands, induces or procures its commission, is punishable

6

Johnson raises two arguments related to his sentencing

hearing which are addressed below.

No. 11-2690 27

as a principal.” In order to be considered an aider

and abettor, the defendant must “in some sort associate

himself with the venture, . . . participate in it as in some-

thing that he wishes to bring about, . . . [and] seek by

his action to make it succeed.” United States v. Pino-

Perez, 870 F.2d 1230, 1235 (7th Cir. 1989) (en banc) (quoting

United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)).

Put more simply, “[a]n aider and abettor is . . . one

who knowingly assists an illegal activity, wanting it to

succeed.” United States v. Colon, 549 F.3d 565, 571 (7th

Cir. 2008).

Pursuant to the government’s request and over

Johnson’s objection, the district court instructed the jury

as follows:

Any person who knowingly aids, counsels, com-

mands, induces or procures the commission of

an offense may be found guilty of that offense.

That person must knowingly associate with the

criminal activity, participate in the activity, and

try to make it succeed.

(Jury Inst. at 14.) Johnson does not challenge the content

of the district court’s instruction, which relies upon

the language of 18 U.S.C. § 2(a) and this court’s prece-

dent. Instead, Joh nson challenges the district

court’s decision to give this instruction in light of the

evidence presented at trial.

At the time Johnson was arrested, he admitted that

everything in the apartment belonged to him and

asserted that Simon was his supplier from Chicago.

During trial, Johnson changed his story and stated that

28 No. 11-2690

a man named Simon lived at and sold drugs from

the address on West Vliet Street. Johnson’s testimony

also revealed that he was aware of the quantity of

cocaine in the house as well as the location of the

cocaine, gun, and money recovered by police officers.

This evidence demonstrates that Johnson knew Simon

was selling drugs from the residence. Further, Johnson

knew the exact location and amount of drugs found in

the apartment, had more than $20,000 in cash, and kept

a firearm for protection. Johnson’s confession at the

police station also shows that Johnson had significant

knowledge about drug distribution. If, in fact, Simon

was selling drugs out of the residence, there is certainly

enough evidence to infer that Johnson knowingly

assisted Simon, wanting his activities to succeed. Based

on the evidence presented at trial, it was not an abuse

of discretion for the district court to give an aiding

and abetting jury instruction.

D. Obstruction of Justice Enhancement

Under Sentencing Guideline § 3C1.1, a sentencing

judge may increase a defendant’s offense level by two

levels if the defendant “willfully obstructed or impeded,

or attempted to obstruct or impede, the administration

of justice with respect to the investigation, prosecution,

or sentencing of the instant offense of conviction.”

U.S.S.G. § 3C1.1 (2010). This obstructive conduct must

be “related to (i) the defendant’s offense of conviction

and any relevant conduct; or (ii) a closely related of-

fense.” Id. At Johnson’s sentencing, Judge Randa deter-

No. 11-2690 29

mined that an obstruction of justice enhancement

applied because Johnson’s pretrial statements to authori-

ties were different from those offered at trial, to such

an extent that the differences could not be a result of

“mistake or faulty memory.” (Sent. Tr. at 6.) We review

a district court’s factual findings for clear error and

application of the sentencing guidelines de novo.

United States v. McCauley, 659 F.3d 645, 652 (7th Cir. 2011).

Johnson offers two arguments in favor of reversing

the sentencing judge’s decision to apply the § 3C1.1

enhancement. First, Johnson notes that Judge Randa

failed to identify a specific statement made by Johnson

at trial which was inconsistent with his post-arrest state-

ments. Second, Johnson argues that Judge Randa did

not make appropriate findings that he committed

perjury, as defined in 18 U.S.C. § 1621.

Section 3C1.1 identifies several examples of obstructive

conduct that warrant a two-level enhancement, in-

cluding “committing, suborning, or attempting to

suborn perjury.” U.S.S.G. § 3C1.1 cmt. n.4(B). A defendant

commits perjury if, while testifying under oath, he “gives

false testimony concerning a material matter with the

willful intent to provide false testimony, rather than as

a result of confusion, mistake, or faulty memory.”

United States v. Dunnigan, 507 U.S. 87, 94 (1993) (citing

18 U.S.C. § 1621(1)). To apply the enhancement, a

district court should make findings as to false

testimony, materiality, and willful intent. United States v.

Johnson, 612 F.3d 889, 893 (7th Cir. 2010). Although it

is preferable for a district court to make separate

30 No. 11-2690

findings for each element, such findings “are not

strictly necessary so long as the court determined that

the defendant lied to the judge and jury about matters

crucial to the question of the defendant’s guilt.” Id.

(quoting United States v. White, 240 F.3d 656, 662 (7th

Cir. 2001)); accord Dunnigan, 507 U.S. at 95 (“The district

court’s determination that enhancement is required is

sufficient . . . [if] the court makes a finding of an obstruc-

tion of, or impediment to, justice that encompasses all

of the factual predicates for a finding of perjury.”).

In this case, the presentence investigation report (PSR)

applied the § 3C1.1 obstruction of justice enhance-

ment, relying on the defendant’s denial at trial that the

cocaine found in the residence belonged to him. During

sentencing, Judge Randa acknowledged that he did not

preside over the trial and then applied the following

analysis:

Relative to the obstruction of justice, the Court

is laboring under the same deficiencies—or at

least not deficiencies, but certainly not the same

position as the trial Judge relative to 3C1.1. And

that the analysis of the statements pretrial to

the authorities were different than at the trial.

The issue is whether or not there was sufficient

difference in the versions of post-arrest state-

ments and the trial testimony that resulted in the

application of this level of points under 3C1.1.

And the Court finds that its analysis suggests

that it’s appropriately applied. That the dif-

ferential in the substance of the statements

No. 11-2690 31

are great enough that they’re not a case of

mistake or faulty memory.

(Sent. Tr. at 6.) Later in the proceeding, the probation

officer asked Judge Randa to clarify if the court had

found that Johnson perjured himself. Judge Randa

stated in response:

I don’t know if I used those words directly, but

the Court did say that the two different versions

of the post-arrest statements and the ones given

at trial were so—not clearly a matter of mistake

or faulty memory. And so that would result in

that conclusion, yes.

Id. at 20.

Although Judge Randa did not specifically state which

of Johnson’s statements at trial amounted to perjury,

he did reference the inconsistencies between Johnson’s

post-arrest statements and trial testimony. At trial,

Johnson testified that the cocaine found in the apart-

ment belonged to Simon. In contrast, in his post-arrest

interview with police officers, Johnson admitted that

everything in the apartment was his. After hearing

all of the evidence, the jury concluded beyond a

reasonable doubt that Johnson possessed 50 grams or

more of crack cocaine. Further, the PSR’s basis for

applying the enhancement was Johnson’s trial testimony

that the cocaine did not belong to him. Judge Randa

certainly read the PSR and relied upon its findings at the

sentencing hearing. From all of this, we can conclude

that Judge Randa believed Johnson gave false testi-

mony concerning ownership of the drugs found in

the apartment.

32 No. 11-2690

Judge Randa’s ruling also satisfies the remaining

two elements of perjury. First, ownership of the drugs

found in the West Vliet apartment was certainly a

material matter at trial and “crucial to the question of

the defendant’s guilt.” Johnson, 612 F.3d at 893. Second,

Judge Randa noted that Johnson’s inconsistencies could

not have been the result of “mistake or faulty memory.”

(Sent. Tr. at 6.) In other words, Judge Randa made a

clear finding that Johnson’s statements were willful. We

believe Judge Randa’s analysis, although admittedly

lacking some degree of clarity, was sufficient to satisfy

our precedent and to find that the obstruction of

justice enhancement should apply to Johnson’s sentence.

E. Career Offender Status

Finally, Johnson challenges the sentencing judge’s

finding that he is a career offender under Sentencing

Guideline § 4B1.1. Under this section, a defendant con-

victed of a controlled substance offense who was at least

eighteen years old at the time is considered a career

offender if he “has at least two prior felony convictions

of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 4B1.1(a). For purposes of the career

offender enhancement, a “crime of violence” is defined as

any federal or state law offense punishable by imprison-

ment for at least one year that:

(1) has as an element the use, attempted use, or

threatened use of physical force against the

person of another, or

No. 11-2690 33

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

Id. § 4B1.2(a)(1)-(2). We apply a categorical approach

in determining if a prior conviction is a crime of

violence, focusing “not on the facts of the defendant’s

particular crime, but only on the fact of conviction and

the essential elements of the offense.” United States v.

Sonnenberg, 628 F.3d 361, 364 (7th Cir. 2010) (citing Begay

v. United States, 553 U.S. 137, 141 (2008)). If a statute

is divisible, i.e., the statute describes distinct modes of

committing the offense in which some conduct may

constitute a crime of violence while other conduct

does not, we apply a modified categorical approach. Id.

at 367. Under this approach, we may look to the

judicial record for the limited purpose of determining

under which part of the statute the defendant was

charged. Id. (quoting United States v. Woods, 576 F.3d 400,

406 (7th Cir. 2009)).

As noted previously, we review a district court’s ap-

plication of the sentencing guidelines de novo and

any factual findings for clear error. McCauley, 659 F.3d

at 652. In determining whether Johnson is a career of-

fender, the district court considered three of Johnson’s

prior felony convictions: aggravated robbery, aggravated

discharge of a firearm, and aggravated battery with

a firearm. Johnson acknowledges that his aggravated

robbery conviction qualifies as a crime of violence. Ac-

cordingly, if one of Johnson’s other convictions is

34 No. 11-2690

also considered a crime of violence, the district court

did not err in finding that Johnson is a career offender.

Johnson’s aggravated discharge of a firearm convic-

tion occurred in Illinois. Specifically, Johnson was con-

victed of “knowingly or intentionally . . . [d]ischarg[ing]

a firearm in the direction of another person or in the

direction of a vehicle he or she knows or reasonably

should know to be occupied by a person.” 720 ILCS § 5/24-

1.2(a)(2). Johnson argues that this conviction is not a

crime of violence because it does not satisfy § 4B1.2(a),

requiring one of the elements of the offense be “the

use, attempted use, or threatened use of physical force

against the person of another,” or the offense “other-

wise involves conduct that presents a serious potential

risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(1)-

(2).

Recently, this court addressed whether an Illinois

conviction for aggravated discharge of a firearm con-

stitutes a crime of violence in United States v. Curtis,

645 F.3d 937 (7th Cir. 2011). Applying the categorical

approach in Curtis, we held that discharging a firearm

“is unquestionably the use, attempted use, or threatened

use of physical force.” Id. at 940. Further, “[w]hen the

firearm’s discharge is in the direction of another

person or vehicle the shooter knows or reasonably

should know to be occupied . . . that use, attempted use,

or threatened use of physical force is ‘against the person

of another.’ ” Id. (quoting U.S.S.G. § 4B1.2(a)(1)). Thus,

the statute was not divisible and satisfied § 4B1.1(a)(1).

No. 11-2690 35

Johnson asks the court to revisit Curtis, arguing that

we failed to consider that 720 ILCS § 5/24-1.2(a)(2) may

be violated by negligence. We have previously held

that Sentencing Guideline § 4B1.1 does not apply to

crimes with a mens rea of negligence or recklessness. See

Woods, 576 F.3d at 408 (quoting United States v. Smith,

544 F.3d 781, 786 (7th Cir. 2008)). In support of his argu-

ment, Johnson relies upon the portion of the statute

which requires that the shooter “knows or reasonably

should know [the vehicle] to be occupied by a person.”

720 ILCS § 5/24-1.2(a)(2) (emphasis added). Because the

offense of aggravated discharge of a firearm may be

committed through negligence, Johnson argues, the

statute is divisible and includes acts that may not be

considered crimes of violence.

But even if Johnson’s argument prevails and we hold

that the statute is divisible, the indictment for Johnson’s

aggravated discharge of a firearm conviction alleges

that he “knowingly discharged a firearm in the direction

of another vehicle he knew to be occupied” (emphasis

added). Thus, applying the modified categorical

approach, Johnson was charged under the portion of the

statute which clearly satisfies § 4B1.2(a). Accord United

States v. Rice, 520 F.3d 811, 820-21 (7th Cir. 2008) (finding

that an Illinois conviction for aggravated discharge of a

firearm was a crime of violence, especially where “[t]he

charging document imposed an even higher standard, as

it charged that Rice knew the vehicle was occupied”).

Accordingly, the district court did not err in finding

that Johnson is a career offender, and we need not

address Johnson’s arguments as to his third prior con-

viction.

36 No. 11-2690

III. C ONCLUSION

For the foregoing reasons, Johnson’s conviction and

sentence are A FFIRMED.

5-24-12