UNITED STATES of America, Plaintiff-Appellee, v. Dennis JAMISON, Defendant-Appellant.
No. 10-1515
United States Court of Appeals, Seventh Circuit.
Decided March 18, 2011.
635 F.3d 962
Argued Dec. 3, 2010.
correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.“). But there is nothing in the record to suggest that the court did either.
The government contends that any error committed by the district court was harmless because the court would have imposed the same sentence regardless. But adopting the government‘s position in this case would eviscerate the requirement that the district court take the Guidelines into account. A failure to altogether consider the Guidelines is not harmless. See Gibbs, 578 F.3d at 695-96 (remanding for resentencing where the district court did not acknowledge the advisory range).
The government also argues that Snyder forfeited his contention that the district court erred because he did not “object” to the sentence imposed. But we have repeatedly held that the rules do not require a defendant to complain about a judicial choice after it has been made so long as the defendant argued for a lower sentence before the court imposed the sentence. Bartlett, 567 F.3d at 910; see also United States v. Paul, 542 F.3d 596, 599 (7th Cir.2008). Snyder argued for a lower sentence before the court sentenced him and therefore preserved his options on appeal.
Finally, Snyder also argues on appeal that his sentence is substantively unreasonable. Because we find that the district court did not follow the proper procedure in sentencing Snyder, we will not address whether the sentence is substantively unreasonable. The parties should address on remand the impact of Snyder‘s original sentence of one six-year term of supervised release in light of
III. CONCLUSION
We therefore VACATE Snyder‘s sentence and REMAND for proceedings consistent with this opinion.
Matthew M. Wawrzyn (argued), Attorney, Chicago, IL, for Defendant-Appellant.
Before FLAUM, ROVNER, and EVANS, Circuit Judges.
FLAUM, Circuit Judge.
Dennis Jamison (“Jamison“) was convicted of possessing a sawed-off shotgun, in violation of
I. Background
Jamison and his wife had a series of domestic disputes during the week of February 23, 2009. Jamison left their shared residence on February 23 to stay with his parents. He returned on February 24 to pick up clothes and other essentials, taking his double-barreled shotgun and a .22 cali-ber
On March 10, 2009, Federal Agents with the ATF Project Disarm Task Force, James Dean Vance and Bayne Bennett, arrived at Jamison‘s parents’ home, where Jamison was at the time, to interview him about the shotgun. During the interview, Jamison admitted that he purchased the shotgun eighteen or nineteen years prior from a private individual at a gun show in Indiana. A fair reading of the record indicates that he admitted that he knew the shotgun was illegal when he purchased it because it was too short and also that he fired the shotgun at his parents’ property.
Jamison was indicted on May 14, 2009, on one count of possessing an unregistered firearm, in violation of
Jamison had a two-day jury trial. The government‘s case-in-chief included testimony from nine witnesses. Among them, Officer David Curtis testified about Mrs. Jamison‘s visit to the police station on February 24, 2009. The government introduced the shotgun into evidence through Officer Curtis. Jamison‘s parents testified about the occasion on which Jamison fired the shotgun at their home. Officer Shively discussed his February 25 visit to Jamison‘s residence. Finally, Agents Vance and Bennett testified about their March 10 interview with Jamison.
Jamison called Mrs. Jamison as his first witness. She testified that she turned the shotgun into police on February 24. She also claimed, among other things, that she inherited the shotgun from her grandfather in the 1980s and that it belonged to her, not Jamison.
On cross-examination, the government established that the couple had been separated in February and March 2009, but that they had since reconciled and were living together at the time of the trial. Mrs. Jamison testified that she provided a sworn, taped statement to law enforcement officers on February 26, 2009. The government played portions of her statement at trial demonstrating that she told police that the shotgun belonged to Jamison. She also testified that she told law enforcement that Jamison owned the shotgun on March 10, 2009.
The government asked whether Mrs. Jamison had previously told the police that Jamison “raised his hand to you to intimidate you.” She admitted making the statement and said that her husband was “an aggressive person,” but claimed that Jamison had never actually raised his hand
Jamison was convicted and sentenced to thirty-six months of imprisonment and two years of supervised release. On appeal, he argues that the district court erred in permitting the government to ask Mrs. Jamison about her opinion that Jamison was aggressive.
II. Analysis
A. Mrs. Jamison‘s Testimony
Jamison appeals the district court‘s decision to permit the government to cross-examine Mrs. Jamison about why she thought Jamison was aggressive. We conclude that the district court did not err.
The
The question at issue—regarding why Mrs. Jamison thought Jamison was aggressive—was probative of Mrs. Jamison‘s bias. The district court did not abuse its discretion in permitting it. See Thompson, 359 F.3d at 479 (“Questioning a witness’ motives for testifying is precisely the type of inquiry permissible on cross-examination. The district court did not abuse its broad discretion in concluding that the evidence of threats and recent violence were probative of Shinnamon‘s credibility and bias. When admitted on cross-examination, this evidence of recent threats and violence was relevant and probative to demonstrate that Shinnamon, a witness who changed her pretrial testimony, was biased and therefore likely to slant or even fabricate her testimony in the defendant‘s favor.“).
Jamison appeals under
Jamison also argues that we should vacate his conviction based on our opinion in Dudley v. Duckworth, 854 F.2d 967 (7th Cir.1988). In Dudley, we held that the government‘s elicitation of threat evidence from a witness on direct examination was so prejudicial that its admission violated the defendant‘s constitutional right to a fair trial. Id. at 972. We suggested that the government elicited the threat evidence as pretext, intending “more to prejudice the defendants ... than to explain away any nervousness of the witness.” Id. Jamison‘s argument is unpersuasive.
We find more similarities between this case and Thompson, in which we distinguished Dudley. 359 F.3d at 476 n. 7, 477. In Thompson, the defendant‘s romantic partner made inconsistent statements—one in an initial meeting with police before trial, the other at trial—about the defendant‘s ownership of ammunition. Id. at 473-74. On cross-examination, the district court permitted the government to elicit testimony that the defendant threatened and physically abused the witness. Id. at 474. Moving for a new trial, the defendant argued that the district court erred by permitting the threat evidence. Id. The district court denied the motion, finding the evidence probative of the witness‘s bias and credibility and that it potentially explained the witness‘s inconsistent statements. Id. at 474-75. We affirmed and held that the evidence was relevant to prove bias and a motive to lie, and that it was not unduly prejudicial. Id. at 477-80. In reaching our holding, we distinguished eliciting threat evidence on direct examination, as was done in Dudley, from eliciting it on cross-examination, which occurred in Jamison‘s trial:
Evidence of threats on direct examination, admitted even though the witness shows no indication of intimidation, is not only of extremely weak probative value, but it also could constitute a prejudicial attack on the opposing party. Such evidence can be highly prejudicial. The situation is very different when the purpose of introducing evidence of a threat is to demonstrate bias on the cross-examination of a witness. In such a context, the probative value of such evidence is far more evident. For instance, evidence of bias, including evidence of a threat, to challenge the credibility of a witness who has made an inconsistent statement simply does not raise the same concerns as evidence of a threat offered, in the absence of a testimonial inconsistency, simply to “boost” a witness’ testimony.
Similar to the witness in Thompson, Mrs. Jamison made contradictory statements—one before trial, the other during trial—regarding whether she or Jamison owned the gun. In light of Thompson, the district court did not abuse its discretion by permitting the government to ask Mrs. Jamison why she thought Jamison was aggressive. See id. at 475-80.
Next, Jamison argues that the threat evidence was unduly cumulative because the government previously established
Finally, Jamison argues that the government did not lay adequate foundation to ask Mrs. Jamison about her opinion that Jamison was aggressive because there was no evidence that he physically abused her during the week of February 23, 2009. We disagree. There was undoubtedly sufficient foundation: She voluntarily admitted that Jamison was “an aggressive person” in response to an earlier question by the government, she acknowledged that she made a sworn statement to police that Jamison had raised his hand to her to intimidate her,2 and she explained that she and Jamison had been married for fifteen years at the time of the trial and that they dated for over three years before marrying. See
Further, we have “explained that there is no special foundational requirement for bias evidence and the party attempting to demonstrate bias should be able to prove any fact logically relevant to bias.” Thompson, 359 F.3d at 478 n. 12 (construing Manske, 186 F.3d at 779). A party eliciting bias evidence based on fear need not “ask explicitly whether the witness was ‘presently afraid’ or whether the witness felt ‘pressured to testify a certain way.‘” Id. (quoting Manske, 186 F.3d at 779). We have mentioned that defendants seeking to elicit such evidence must inquire into the “who, what, why, where, and when of the specific incidents he claims give rise to bias.” Id. (quoting Manske, 186 F.3d at 779). But such questions were unnecessary in this situation. Here, the government asked merely why Mrs. Jamison thought Jamison was aggressive. It did not seek testimony about specific incidents and Mrs. Jamison did not discuss any. In response, Mrs. Jamison explained that her belief was “based on a knowledge of a person‘s character” and that Jamison had not physically harmed her in any way. The district court did not err in permitting the government to elicit testimony regarding why Mrs. Jamison thought Jamison was aggressive.
B. Harmless Error
Assuming arguendo that the district court erred in its evidentiary ruling, the error was harmless. See
The government indisputably established the first and third elements. Jamison concedes in briefing that the evidence established that he possessed the firearm. Also, undisputed evidence demonstrated that the shotgun was never registered.
Jamison argues that the government failed to sufficiently prove the second element to render the alleged error harmless. This argument is meritless: The government proved the second element with overwhelming evidence. First, Agents Vance and Bennett testified that Jamison admitted to them on March 10, 2009, that he knew the shotgun was illegal when he purchased it because it was too short. Second, Officer Shively and Mrs. Jamison testified that Jamison told Officer Shively on February 25 that the barrel might be too short. Finally, the shotgun and its barrel were significantly shorter than
Jamison makes two final arguments, both unpersuasive. First, he points out that he testified that some people told him that the gun was antique, and, thus, not illegal. But his admissions to Agent Vance, Agent Bennett, and Officer Shively, in addition to the fact that the shotgun and its barrel were significantly shorter than
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.