937 F.3d 965
7th Cir.2019Background
- On Feb. 9, 2017 Michael Barber and Anthony Chipps stole 15 handguns from Dutchman Hunting Supplies; Chipps cooperated and testified at trial.
- Barber was indicted under 18 U.S.C. §§ 922(u), 922(g)(1), and 922(j); convicted on all counts and sentenced to 210 months including a two‑level obstruction enhancement.
- Government introduced: (1) ATF “Blue Ribbon” license records and ATF affidavits, (2) Facebook Messenger records linking Barber to pre‑robbery planning, and (3) cell‑site location records from Barber’s carrier.
- Barber objected at trial to the ATF records (Confrontation Clause) and Facebook authentication (ownership); he did not move pretrial to suppress the cell‑site data that was obtained without a warrant.
- District court admitted ATF records, Facebook evidence, and location data; imposed § 3C1.1 obstruction enhancement based on a bench message advising Chipps to “think b4” he testified.
- Seventh Circuit affirmed: found ATF record admission erroneous but harmless (owner’s license copy sufficed); Facebook authentication proper; Carpenter challenge forfeited; obstruction enhancement supported by the bench message and context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of ATF license records / Confrontation Clause | ATF affidavits are testimonial; unavailable agents violated Sixth Amendment (no cross‑exam). | Government relied on ATF records as official records; argued admissible without live testimony. | Admission was erroneous under Melendez‑Diaz/Bullcoming but harmless because store owner produced an authentic signed license. |
| Authentication of Facebook messages | Facebook account not proven to belong to Barber; records inadmissible. | Account linked to Barber by friends, photos, phone number, and Thompson’s testimony linking messages to in‑person meetings. | Properly authenticated under Rule 901; ample circumstantial and testimonial links tied the account to Barber. |
| Cell‑site location data (Carpenter) | Obtaining CSLI without warrant violated Carpenter; should be suppressed. | Data obtained before Carpenter; defense failed to raise pretrial suppression motion; forfeited argument. | Forfeited under Rule 12; no good cause for untimely suppression motion despite Carpenter decision. |
| Sentencing: § 3C1.1 obstruction enhancement | Message urged Chipps to tell truth; not an attempt to obstruct; enhancement inappropriate. | Bench message objectively an attempt to influence/coerce witness; context suggests discouraging testimony. | Enhancement affirmed: objective standard shows an attempt to influence Chipps, supporting two‑level increase. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework for testimonial statements)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (forensic certificates can be testimonial; right to cross‑examine)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (report containing testimonial certification inadmissible through surrogate testimony)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (warrant required for historical cell‑site location records)
- United States v. Thomas, 897 F.3d 807 (7th Cir. 2018) (failure to file pretrial suppression motion forecloses post‑trial Carpenter challenge)
- United States v. Daniels, 803 F.3d 335 (7th Cir. 2015) (same principle on forfeiture of suppression claims)
- United States v. Cheek, 740 F.3d 440 (7th Cir. 2014) (context can make statements urging a witness to "tell the truth" obstructive)
- United States v. House, 551 F.3d 694 (7th Cir. 2008) (standard of review and objective test for § 3C1.1 enhancements)