United States v. Michael Bonin
932 F.3d 523
| 7th Cir. | 2019Background
- In 2014 at an AMC theater in Chicago, Michael Bonin repeatedly claimed to be a U.S. Marshal, displayed a badge and a firearm, threatened patrons, and convinced responding officers he was a marshal before being escorted out and later charged under 18 U.S.C. § 912 (acts-as-such clause).
- A prior alleged impersonation incident and a subsequent separate traffic incident produced related indictments; the court proceeded to trial on the theater § 912 charge after severance and dismissal of an earlier count.
- At trial witnesses (security, officer Guillory, patron Alfich) testified Bonin impersonated a marshal, threatened the audience, and brandished a badge and gun; Bonin denied these events and claimed he was a bounty hunter who used similar paraphernalia.
- The government introduced items seized from Bonin’s home and social-media photos after Bonin denied intent to impersonate, and Alfich’s immediate post-incident texts were admitted as prior consistent statements when Bonin’s testimony suggested fabrication.
- The jury found Bonin guilty; he was sentenced to three years’ probation. On appeal he raised First Amendment facial and overbreadth/vagueness challenges to § 912, claimed instructional errors (mens rea, assertion-of-authority, causation, unanimity, First Amendment instruction), and asserted evidentiary and suppression errors.
Issues
| Issue | Bonin’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether § 912 (acts-as-such clause) is facially unconstitutional under the First Amendment | Alvarez renders § 912 invalid as a restriction on false speech | § 912 targets impersonation plus overt acts and protects compelling interests (public safety, government integrity); Alvarez distinguished such statutes | § 912 is constitutional; survives heightened scrutiny because it’s narrowly tailored to prevent impersonation with harmful overt acts |
| Whether § 912 is substantially overbroad | The acts-as-such clause could criminalize a substantial amount of protected speech (hypothetical benign lies, costumes, satire) | Overbreadth requires realistic danger of chilling protected speech; § 912 reaches limited subset tied to deceptive acts | Overbreadth challenge fails; hypotheticals are speculative and not a realistic danger |
| Whether the acts-as-such clause is unconstitutionally vague | Statute is vague as to required elements (mens rea, assertion of authority, causation) | Bonin’s conduct was plainly proscribed; no vagueness as applied; statute’s text and precedent supply meaning | Vagueness claim rejected as Bonin’s conduct was clearly covered; no standing to complain about others’ hypothetical vagueness |
| Whether trial court erred in jury instructions (mens rea, assertion of authority, causation, unanimity, First Amendment) | Court should have instructed on mens rea, that impersonation requires asserting authority and causation, given unanimity and First Amendment protections | Instruction tracked § 912 and precedent; omission of mens rea harmless beyond a reasonable doubt; additional elements not in statute; unanimity unnecessary; First Amendment instruction would mislead | Instructional challenges fail: mens rea omission was harmless; court correctly declined to add non-statutory elements or give requested unanimity/First Amendment instructions |
| Admissibility of pseudo-law-enforcement items and social-media photos | Admission violated Rules 404(b) and 403 (propensity/unfair prejudice) | Evidence admissible as non-propensity impeachment and to prove intent once Bonin denied intent; limiting instruction given; probative > prejudicial | Admission proper: defendant opened the door by denying intent; district court did not abuse discretion and gave limiting instruction |
| Admission of Alfich’s texts and suppression of statements to officer Guillory | Texts were hearsay; initial encounter violated Fourth Amendment / Miranda issues | Texts admitted as prior consistent statements to rebut implied fabrication; 911 call and observed gun gave reasonable suspicion; encounter was consensual questioning | Texts admissible under Rule 801(d)(1)(B); suppression denial proper—reasonable suspicion supported encounter |
Key Cases Cited
- Schenck v. United States, 249 U.S. 47 (1919) (introduces limits on speech where false statements cause imminent harm)
- United States v. Alvarez, 567 U.S. 709 (2012) (plurality addressing truthfulness and First Amendment; distinguishes impersonation statutes)
- United States v. Lepowitch, 318 U.S. 702 (1943) (interprets § 912 as criminalizing acts in pretended character)
- United States v. Rippee, 961 F.2d 677 (7th Cir. 1992) (describes § 912 acts-as-such offense as impersonation plus overt conforming act)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error standard for omitted jury-element instructions)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (a party who engages in clearly proscribed conduct cannot complain of vagueness as applied to others)