United States v. Michael Bonin, 932 F.3d 523

Before B AUER , H AMILTON , B RENNAN , Circuit Judges . B RENNAN Circuit Judge Justice Holmes introduced mainstay jurisprudence when wrote: “The most stringent protection free speech would pro tect man falsely shouting fire theatre causing panic.” Schenck (1919). A cen tury later, Michael brings us back exam ine limits protected speech. 1479

After fellow moviegoers asked Bonin stop talking on his phone during a film, Bonin scolded audience, said he a U.S. Marshal speaking “the government,” flashed a gun on his belt, and threatened “anyone [who] had problem it, they could take it out in hall.” Panicked patrons called and theater security in response. Everyone now knows Bonin Marshal, but when police arrived, Bonin convinced them too was, and they allowed him reenter theater. Such second chance usually preludes character arc, but in story. As Bonin walked his seat, raised his arms, again exposed his gun, bellowed, “See, I told you I’m Marshal.” Moments later, police returned removed him theater. ruse resulted an indictment U.S.C.

§ That statute makes crime impersonate an officer employee States. A jury found Bonin guilty. He now claims unconstitutional restriction free speech challenges multiple evidentiary rulings jury instructions. Because none his claims offer reason reverse verdict, we affirm.

I events described above occurred AMC River East theater Chicago. Brian Reidy, off duty Chicago police officer moonlighting security, re sponded first asked Bonin step out into hallway. Reidy observed openly wore gold badge gun belt. When Reidy asked about employment, again falsely claimed Marshal. told Reidy was his “first night off” after “working many months.”

Minutes later, Chicago police officer Brenda Guillory ar ‐ rived response a call about a person a theater caus ing a disturbance with a gun. Two more police officers responded backup. As Guillory approached Bonin, she saw he wore a “full duty belt” typically worn enforce ment with gun, magazine, and badge it. Guillory’s con cerns were “relaxed,” however, after Bonin told her he U.S. Marshal. Bonin also gave Guillory his driver’s li cense and photo identification classifying him “U.S. Fugitive Enforcement Agent” “U.S. Fugitive Enforce ment Bureau.” The identification card contained “star” logo words “U.S. Investigations.” Similarly, Bonin’s gold badge read, “U.S. Fugitive Enforcement Bureau,” Seal and “The Amer ica” imprinted center.

Guillory ran check Bonin’s driver’s license, re vealed no outstanding warrants and valid concealed carry license. exchange between Guillory lasted about ten fifteen minutes. Because police theater security believed Marshal, they allowed him back into movie asked him keep quiet rest night. immediately ignored instruction. As reen tered theater, raised arms above his head, displayed gun, blustered, “See, I told you I’m Marshal.” One moviegoer ran out told Reidy returned boasting, “I’m [expletive] Marshal, there’s nothing you can do about it.” Another patron, Patrick Alfich, sent a series text messages a friend in he stated:

[J]ust got out movie w[h]ere drunk US marshal with a gun threatened audience … [.] Everyone started yelling when he took a phone call during movie[.] … Then po lice let him back into theater because he’s a US marshal … [H]e had his gun him his belt loop[.] … [S]aid he’s a US marshal was calling him everyone can go [expletive] themselves they had issue he was going take out into hallway[.]

Police, who had yet leave scene, escorted Bonin out. As Bonin exited, he walked limp explained Guillory injured leg executing search warrant; another lie, Bonin actually injured leg motorcycle accident. At point, Guillory offered ride home “as courtesy” because she still believed enforce ment officer. declined Guillory’s offer.

In response ruckus, gave customers free movie passes advised them contact Mar shals Service if they wished complain. Alfich did just that. Six weeks later, charged impersonation Marshal violation U.S.C.

A federal grand indicted twice falsely im personating Marshal: once Markham, Illinois (Count One), and the incident described above (Count Two). At the government’s request, the dis ‐ missed Count One the indictment January

One month later—while awaiting trial on the movie thea ter charge—Bonin took his show on the road. Police observed a car driving Beecher, Illinois, with flashing red and white emergency lights activated. As car approached, police pulled over to allow it to pass, believing it was emergency vehicle. But when vehicle sped police realized was a paramedic patrol car they expected, but a Ford Bronco adorned with large “AGENT” decal on wind shield and enforcement insignia on sides. Bonin was driver. After that, grand returned two count su perseding indictment charging Bonin with violations AMC theater incident (Count One) and this new act impersonation while driving. At request, dis trict severed two counts ordered trial to proceed theater charge.

Bonin raised numerous pretrial challenges govern ment’s movie charge. Initially moved dismiss indictment, pointing Alvarez U.S. 6 18 1479 (2012) (plurality opinion), which held speech restrictions im ‐ posed by Stolen Valor Act of 2005 violated First Amendment. claims logic of Alvarez renders § 912 unconstitutional extension. ^[3] The district court denied Bonin’s motion because “arguments rely on an over exag ‐ gerated interpretation of Alvarez ,” in which Supreme Court’s plurality, concurring, dissenting opinions discuss § dicta as an example of constitutional statute. The court concluded that no part of plurality’s opinion Alvarez made § “somehow vulnerable” Bonin’s argu ments.

The also refused give several of Bonin’s proposed instructions. On elements of offense, proposed instructions explained § violation requires: (1) false assertion authority; (2) an intent de fraud or “knowing” violation; (3) evidence false pretense federal authority caused others change their be havior some way. also requested an instruction re quiring unanimity alleged false representation violated law, well as an instruction informing protects freedom expression.

On elements, found pro posed instruction focused incorrect offense. It rejected Bonin’s proposal and instructed the jury that, to con vict, would need to find that Bonin: (1) “falsely assumed or pretended have been an officer employee acting under authority the Marshals Service”; and (2) “acted as such.” The court’s instructions further stated that “[w]ith respect acting ‘as such,’ government must prove that [Bonin] acted manner consistent with his pre tended authority as officer employee States.” With respect Bonin’s proposed unanimity and instructions, concluded they were consistent with facts and issue case. also moved suppress his statements Reidy and Guillory on two theories: removal from constituted unlawful seizure, officer failed read him Miranda warnings. The denied Bonin’s suppression motion, finding Bonin’s encounter police was consensual, ruling police had reasonable suspicion question based reports person gun causing disturbance theater.

At trial, heard from Reidy, Guillory, Alfich, each whom testified held himself out be Marshal. Alfich also testified about Bonin’s threats rating movie audience. presented testimony deputy Marshal Michael Woods Haw kins who explained basic duties position, including fugitive recovery accessories Marshal, such wearing weapon badge belt. Rippee 678–79 1992). proposal involved demands clause, but charged acts clause.

Bonin testified on his own behalf. On direct examination, he contradicted the testimony of Reidy, Guillory, and Alfich, denying he raised his voice at the movie audience pre tended a Marshal. He also testified the badge he wore at the the identification card he presented Guillory were given him the entity “employed” him a bounty hunter. The gold badge bore the words “U.S. Fugitive Enforcement Bureau” with the Seal of the United words “The United States of America” the center of badge. The ID card contained title “U.S. Fu gitive Enforcement Bureau,” termed Bonin a “Fugitive Recovery Agent.”

On cross examination, Bonin again testified he never cursed at audience, never said he Marshal, nor tried trick anyone into thinking he Marshal time his life, including night theater. To rebut testimony, government showed Bonin assortment of badges other items seized his home con tained words “Fugitive Recovery Agent,” “U.S.,” “United States.” The items also applied semblances Seal United States. admitted he purchased these items himself. One these items, knit cap with federal insig nia, included motto Marshals Service. He also acknowledged put gold magnet on his vehicle bearing image star badge with words “Fugitive Recovery Agent” encircling Seal States. asked about pictures posted his public Facebook page. These included picture wearing uniform badge, another picture car decals “U.S. Detective” “CAUTION K 9.” admitted placing those indicators vehicle, but denied doing so make people think he federal law enforcement officer.

Because testimony called into question verac ity Alfich’s prior testimony, re called Alfich. Before trial, court had excluded Alfich’s text messages. But after Bonin denied Alfich’s account Bo nin’s actions during movie, allowed govern ment introduce Alfich’s texts prior consistent statements.

After three day trial, jury returned guilty verdict. moved judgment acquittal new trial, but denied motions. At sentencing placed three years’ probation.

II

On appeal submits horde legal challenges. Three predominate: challenge § Amendment, objections instructions, eviden tiary disputes.

A

The Constitution mandates “Congress shall make no ... abridging freedom speech.” C ONST . amend. I. claims imperils freedom. We review 10 18 1479 constitutional question de novo. Ctr. for Individual Freedom v. Madigan , 697 F.3d 464, 476 (7th Cir. 2012).

Section 912 provides:

Whoever falsely assumes or pretends be officer or employee acting under authority United States or any department, agency or officer thereof, acts as such , or such pre tended character demands or obtains money, paper, document, or thing value, shall be fined under this title imprisoned more than three years, both.

(emphasis added). charged “acts such” clause § 912, criminalizes “false impersonation federal ficial coupled overt act conformity with pre tense.” v. Rippee , 677, 1992). He mounts facial challenge clause, advancing three arguments. First, he claims Supreme Court facially inval idated it v. Alvarez , U.S. (2012). Next, invokes overbreadth doctrine, arguing acts clause reaches “substantial amount” constitutionally pro tected conduct. Last, argues unconstitutionally vague. begin our analysis broader facial attack fore turning doctrines overbreadth vagueness. confronts “heavy burden” raising facial con stitutional challenge Nat’l Endowment Arts v. Finley , (1998). Supreme Court has repeat edly stated facial invalidation legislation disfavored. See Wash. State Grange Wash. State Republican Party (2008); Nat’l Endowment Arts 18 1479 11 (noting facial invalidation “has been employed Court sparingly only as last resort”); FW/PBS, Inc. v. Dallas , 493 U.S. 215, 223 (1990) (“[F]acial challenges legislation are generally disfavored.”). To prevail on facial attack, must establish “that no set of circumstances exists” in § 912 would valid it “lacks plainly legitimate sweep.” v. Stevens , 559 U.S. 460, 472 (2010) (in ternal quotations citations omitted). offers no arguments, nor could

Alvarez . There, plurality of Court described § 912 as “permissible” restriction on speech because “protect[s] integrity Government processes” “is itself confined ‘maintain[ing] general good repute dignity … … service itself.’” 567 at 720–21 (plurality opinion) (quoting Lepowitch 318 704 (1943)). Likewise, Justice Breyer’s concurring opinion Justice Alito’s dissent discussed § constitutional re striction speech. . at (Breyer, J., concurring in judgment); id . at (Alito, J., dissenting). Despite splin tered decision, no Justice in Alvarez questioned constitu tionality §

12 18 1479

The Alvarez plurality applied “most exacting scrutiny” striking down the Stolen Valor Act. at 724 (plurality opin ion) (quoting Turner Broadcasting System, Inc. v. FCC , 512 622, (1994)). The concurring opinion applied intermediate scrutiny. Id. at (Breyer, J., concurring the judgment). We will assume, without deciding, that the more demanding standard discussed Alvarez applies here, survival under former yields same result the latter.

“Most exacting scrutiny” requires government es tablish that “regulation necessary serve compelling state interest and that narrowly drawn achieve that end.” Boos v. Barry , 321–22 (1988). Here, stat ute prohibits impersonation federal officials and employ ees “protect integrity Government processes,” Alvarez , U.S (plurality opinion), and “maintain general good repute dignity government service itself,” Lepowitch , (internal parentheses omit ted). does dispute that public safety protection reputation law enforcement are compelling interests. are alone concluding they are. Fourth Circuit

addressed same issue held “ Alvarez … confirms … very real problem law enforcement impersonations misfortunes can flow them.” v. Chappell 2012) (rejecting Alvarez invalidated Virginia prohibiting impersonation police). Likewise, Ninth Circuit has held: “As Alvarez made clear, government has constitutional power prohibit impersonation federal officials employ ees” characterized prohibition serving “substan tial interests.” Tomsha Miguel 18 1479 13 F.3d 1048–49 (9th Cir. 2014) (applying intermediate scrutiny holding § 912 is constitutionally permissible restriction free speech). ^[7]

Pretending enforcement officer could, without more, help someone improperly gain entrance home, school, other secured location. See Chappell , 691 F.3d at (observing same). That is what happened here: lies gave him cover bring gun loaded magazine clip into dark crowded theater. Because impersona tion federal officer could have serious security ramifica tions erode public’s trust federal institutions, government’s interest protecting integrity govern ment processes is compelling.

Given government’s compelling interest, only question is whether § is “narrowly drawn achieve” those interests. Boos at 321–22. We look again Alvarez . False statements are categorically excluded protections. In recognizing principle, Alvarez distinguished between unprotected lies (like fraud, speech integral criminal conduct, defamation, perjury) 14 18 1479 protected lies (like those covered by the Stolen Valor Act, “targets falsity nothing more”). ^[9] 567 at 719; see also id . at 734–35 (Breyer, J., concurring in the judg ment) (distinguishing § 912 its “narrower” scope from the Stolen Valor Act). What sets § 912 apart the Stolen Valor Act requirement overt act in conformity the lie.

The Stolen Valor Act’s flaw was “its plain terms ap plie[d] to statement made at any time, any place, to any person. … And it does so entirely without regard whether lie made for purpose material gain.” at 722–23 (plurality opinion). Section 912’s acts clause more narrowly tailored because it requires inten tional “act[ion] pretended character … sought cause deceived person follow some course would not have pursued but deceitful conduct.” Lepowitch at 704; see Tomsha Miguel (finding stat utory elements § incorporate intent deceive). Ap plying reasoning Lepowitch here, evidence showed ‐ 1479 15 that both sought to deceive the movie audience to tol erate rude behavior sought to deceive the police offic ers avoid taking action against him threatening conduct the theater.

Because the acts such clause prohibits more than mere lies, it falls outside scope Alvarez’s holding. Alvarez , at (“Statutes … prohibit impersonating Gov ernment officer, protect integrity Government pro cesses, quite apart merely restricting false speech.”). Instead, clause is “narrowed … subset lies where specific harm is more likely occur,” “help[s] make certain statute does allow its threat liability criminal punishment roam large.” at (Breyer, J., concurring judgment). “Where claims are made effect fraud … well established Government may restrict speech without affronting Amend ment.” Alvarez (plurality opinion). Although Court’s observations § arose dicta, they inform us where Court stands. McBride CSX Transp., Inc. 2010) (“[W]e must treat great re spect prior pronouncements Supreme Court, even if those pronouncements are technically dicta.”). For these reasons, we follow Alvarez’s approach hold narrowly drawn serve government’s compelling inter ests. turn now whether acts clause prohibits substantial amount protected speech, violating over

breadth doctrine.

Because overly broad may deter constitutionally protected speech, overbreadth doctrine allows persons, like Bonin, “to attack overly broad statutes even though ‐ conduct of person making attack is clearly unpro tected and could be proscribed law drawn req uisite specificity.” New York v. Ferber , 747, (1982). Even still, “strong medicine” of doctrine is employed “with hesitation, then ‘only as last resort.’” Id . (citation omitted). “[T]he mere fact that one can conceive of some im permissible applications statute not sufficient to render it susceptible overbreadth challenge. Members City Council City Los Angeles v. Taxpayers for Vincent , (1984) (denying overbreadth challenge after plaintiffs “simply failed demonstrate realistic danger that ordi nance will significantly compromise recognized First Amend ment protections individuals not before Court”). Rather, “there must be realistic danger statute itself will significantly compromise recognized First Amendment protections parties before Court facially challenged overbreadth grounds.” fails raise any “realistic danger” acts such clause will compromise rights. offers weak examples: “a fired Treasury employee” who “conceal[s] unemployment from spouse claim[s] ‘going work’ each morning”; “[a]n Internet dater” who “fak[es] FBI agent work emergency end bad date early.” According Bonin, “the ‘acts’ offense [even] criminal izes Halloween.” These far fetched hypotheticals do presage risk acts clause will cause third parties avoid constitutionally protected speech. Moreover, “[t]he overbreadth claimant bears burden demonstrating, text from actual fact, substantial overbreadth exists.” Virginia Hicks (2003) (internal quotations citations omitted); see Ctr. Individual Freedom 479–80 (“The central ‐ question … is whether provisions issue potentially reach ‘substantial’ amount of protected speech.”). Bonin’s hypothetical cadre of costume wearers regretful suitors fail satisfy these conditions. The acts ‐ as ‐ such clause raises no overbreadth problems.

Bonin’s last attack on § 912’s constitutionality is for vague ness. It is “basic principle of due process” statute is void vagueness “if its prohibitions are not clearly de fined.” Grayned v. City of Rockford , 104, (1972).

Critically, makes no claim acts as such clause is vague respect his own conduct. The flagrancy frequency of Bonin’s lies fit within pro hibition of “falsely assume[] pretend[] of ficer employee acting authority States.” Bonin’s vagueness claim does survive “the rule ‘a plaintiff who engages some conduct clearly proscribed cannot complain vagueness ap plied conduct others.’” Holder v. Humanitarian Law Project (2010) (internal brackets omitted) (quot ing Vill. Hoffman Estates Flipside, Hoffman Estates, Inc. (1982)). “That rule makes no exception con duct form speech.” facts here do present close call issue. Because conduct “clearly proscribed,” we see no reason evaluate merits vagueness claim.

B next argues “misinstructed essential elements” acts offense. He

contends erred refusing give prof fered unanimity instructions. review challenge the elements instruction two steps. First, we review de novo “whether [the] structions accurately summarize the law, but give the substantial discretion formulate the instructions pro vided the instructions represent complete correct statement of the law.” United States Daniel 2014) (citation omitted). If the instructions are legally accurate, then we review court’s phrasing of instructions abuse discretion.

Here, instruction read:

In order you find defendant guilty these charges, must prove each following two elements beyond reason able doubt:

1. That defendant falsely assumed or pretended have been an officer or em ployee acting authority Marshals Service; That defendant acted such. With respect acting “as such,” govern ment must prove defendant acted manner consistent pretended authority officer employee Marshals Service. components instruction are either direct quota

tions from 912’s text (the numbered portion instruc tion) accurate restatement case precedent Supreme Court (the final sentence). Compare Lepowitch (“Government officials are imper sonated persons who ‘assume act pretended 18 1479 19 character.’”) with Rippee , F.2d at (“Section crimi nalizes … impersonation of federal official coupled with an overt act in conformity with pretense … .”) United States v. Hamilton , 96, 1960) (“The words ‘acts such’ as used [§] … have been construed mean acting pretended character, [without] neces sarily doing an act defendant would have been author ized do authority of assumed [office].”). Providing jurors these accurate summaries applicable is not an abuse discretion. argues should have instructed jury three additional elements an acts offense: mens rea component, an assertion authority component, causation. address proposed elements turn.

The concedes erred omit ting mens rea instruction. See , e.g., Elonis v. , S. Ct. (2015) (“The fact statute does not specify required mental state, however, does not mean none exists.”). Even so, “an instruction omits an ele ment offense does necessarily render criminal trial fundamentally unfair an unreliable vehicle determining guilt innocence.” Neder (1999). omission an element subject harmless error anal ysis. Id . 10.

In Neder Supreme Court set forth test determine whether error harmless: “Is clear beyond reasonable doubt rational would have found defendant guilty absent error?” Here, only pre tended Marshal break rule, did so attitude entitlement, undermining integrity profes sionalism Marshals Service. Then, kept con ‐ going, lying police avoid being arrested kicked out theater. And after that scam worked, he gloated and flashed a gun as he reentered theater. Section prohibits such conduct. More importantly, a fairly selected and impar ‐ tial jury weighed all evidence, including Bonin’s own tes timony, and rejected his defense. See id. 9. On record this case, no could reasonably find that Bonin’s contin ual falsehoods were knowing intentional. We thus hold court’s failure submit mens rea ele ment was harmless error. claims erred when failed

instruct acts ‐ as ‐ such impersonation requires an assertion authority. He contends this instruction required “har monize” our holdings Hamilton Rippee . disagree both fronts. First, Bonin’s proposed instruction ignores plain language § contains no “assertion au thority” requirement. Second, proposal would nullify acts such clause as separate distinct violation On point, he labors under misimpression tension exists between Hamilton Rippee In Hamilton defendant committed acts impersonation when wearing firearm someone’s home while falsely pretend ing be F.B.I. agent. 97–98 (affirming judgment conviction). Rippee involved defendant charged 18 1479 21 demands clause who pretended to Marshal as serted false authority (that he dispatched to break up fight) avoid traffic ticket for an illegal U turn. F.2d (affirming judgment conviction). These opinions apply different requirements because they concern different § offenses, there no conflict their holdings.

Bonin’s request for causation instruction—telling jurors “acts” must cause someone change their behavior—also fails because text does not mention causation. Nor has our interpreted statute require causation prove acts as offense. decline invitation decree requirements not included statute itself. asked unanimity structions. “We review de novo court’s refusal provide requested jury instruction when underlying as signment error implicates question law, but general tacks jury instructions are reviewed abuse discretion. v. Bloom F.3d (7th Cir. 2017) (citations internal quotation marks omitted). speculates may have convicted him without agreeing representations violated law. He claims a unanimity instruction would have fixed problem. “[W]hile a jury’s unanimity required regard to each principal element of a criminal offense, ‘a federal jury need not always decide unanimously which of several possi ‐ ble sets of underlying brute facts make up a particular ele ‐ ment, say, which of several possible means the defendant used to commit an element of the crime.’” Daniel (quoting Richardson (1999) (emphasis added)). Here, Bonin’s repeated statements Marshal, addition brandishing a badge gun, were the “underlying brute facts” the ver ‐ dict against him. In other words, “they were merely means used commit an element crime.” Because “the instructions used case accurately con veyed law,” id ., did abuse its discre tion when it declined give unanimity instructions requested. claims absence First Amendment

struction exposed him conviction protected expres sion. He insists erred refusing instruction saying “the First … prevents government criminalizing mere hyperbole, sleaziness, bad behavior, bragging, puffery, expression opinion. It illegal simply pretend Marshal.” But reasons explained above, pro posed instruction misstates law. And allowing muse on Amendment’s influence on constitution ally valid statute risks confusion elements fense government’s burden proof. The needed prove elements 912’s acts offense beyond reasonable doubt, did. district properly refused to give in ‐ struction.

C

Finally, presents series of evidentiary issues ‐ lieves warrant reversal. We start his claim ad mission of pseudo law enforcement items seized from his home, as well as social media images him in law enforce ment regalia, unfairly prejudiced his defense. After that, we consider admission Alfich’s text messages. Then, we ex amine whether erred denying Bonin’s motion suppress his statements to Officer Guillory. Last, we consider whether entitled present certain ev idence lawfully carried gun in theater.

During cross examination Bonin, intro duced three badges, one automobile magnet, knit cap seized home, in addition Facebook photos posing as law enforcement officer. alleges admission these items violated F ED . R. E VID . 404(b) they were used demonstrate propensity imperson ate enforcement resulted unfair prejudice. re view court’s decision admit this evidence abuse discretion. Anzaldi 2015).

Rule 404(b) provides “[e]vidence crime, wrong, other act admissible prove person’s character order show particular occasion person acted accordance character.” F ED . R. E VID . 404(b) (em phasis added). Yet rule permits other act evidence non propensity purposes, including proof intent. When, case, “intent ‘at issue’ because defendant ‐ makes it an issue,” other act evidence may be admissible to prove intent, “but must be relevant without relying on propensity inference, its probative value must sub stantially outweighed by risk unfair prejudice.” Gomez F.3d 2014).

Before trial, excluded items seized from home his social media postings. Yet allowed this other acts evidence on cross examination after Bonin denied ever intending to give impression he was Marshal, just theater, but at any time his life. Bonin also testified any resemblance iden tification card he gave Guillory badge he wore at had official law enforcement items was coinci dental created his “employer.” At point, Bonin opened door government’s impeachment evi dence pseudo federal law enforcement items his home. See Gomez at (“[I]n order govern ment introduce prior bad acts show intent, defendant must put his intent issue first.”). asked whether he purchased these

items himself, he affirmed. These questions were permissible impeachment after disclaimed intent trick anyone any time into believing he Marshal. For example, acknowledged placing words “U.S. Detective” gold star magnet similar Marshal insignia vehicle, but denied intent make peo ple think federal enforcement officer. When denied intent, evidence became relevant non propensity purpose proving contrary intent. Accordingly, challenged evidence clears Rule 404(b)’s bar propensity evidence.

The next question, then, whether the probative value of this evidence “is substantially outweighed by danger of … unfair prejudice.” F ED R. E VID . As general matter, “in tent becomes more relevant, evidence tending to prove intent becomes more probative, when the defense actually works to deny intent, joining the issue contesting it.” v. Miller F.3d (7th Cir. 2012).

Here, intent became contested issue after denied intending to deceive others point time into believing federal law enforcement. challenged evidence— which bore stark resemblances to federal enforcement tire, phrases, insignia, purchased him self—had high probative value because went directly to intent to deceive public. “accord great deference” district court’s eviden tiary determinations “because of judge’s first hand expo sure evidence[,] … familiarity case[,] ability gauge impact evidence context trial.” Williams 2000). In addition, gave limiting instruction avoid any possibility that the jury would im properly view this as “propensity” evidence. The court di rected the jury consider evidence impeachment alone, as well as the could not infer because committed act past he was more likely have committed charged offense. Affording “great defer ence” here, was within its discretion admit challenged evidence. argues erred by admitting text messages sent witness Patrick Alfich. Once again, we review abuse discretion. Anzaldi F.3d In government’s rebuttal case, Alfich testified regarding text messages sent immediately after witnessing outbursts. statements contained those text messages were admitted prior consistent statements under F ED . R. E VID . 801(d)(1)(B).

A statement is hearsay, is admissible prior consistent statement Rule 801(d)(1)(B), if four condi tions are met: (1) declarant testifies trial is subject cross examination; (2) prior statement consistent declarant’s trial testimony; (3) statement offered rebut express implied charge recent fabrication im proper motive; (4) statement made before de clarant had motive fabricate. Davis 788–89 2018). argues third re quirement met because never directly accused Alfich fabrication. But argument ignores Rule 801(d)(1)(B) allows prior statement rebut “ implied charge declarant recently fabricated.” F ED R. E VID . 801(d)(1)(B)(i) (emphasis added). 1479 27

“[T]he precise contours” of charge of fabrication “may unclear.” Miller v. Greenleaf Orthopedic Assocs., S.C. , F.3d 569, (7th Cir. 2016). Yet “determining whether wit ‐ ness’s past statement has potential rebut allegation will necessarily involve an exercise trial judge’s discre tion.” Here, Bonin’s testimony direct and cross exami nation directly contradicted Alfich implied Alfich’s testimony about statements, threats, behav ior was fictional. See United States v. Ruiz , F.3d 643, 647–48 (7th Cir. 2001) (holding accusation fabrication existed where defendant “raised implication” witness’s testimony “was fictional”). Given these reasons, court’s ruling supported reflects proper exercise discretion.

As admission pseudo enforcement items, social media images, text messages, reversal re quired if evidentiary error “had substantial injurious effect influence jury’s verdict.” v. Reddit , F.3d 597, (7th Cir. 2004) (quote omitted). An evidentiary error meets standard “only when signifi cant chance exists they affected outcome trial.” Whitehead v. Bond F.3d (7th Cir. 2012). Given trial evidence, these standards are met here. appeals initial police encounter. He argues officers lacked reasonable suspicion believe

volved criminal activity theater, therefore “eve rything happened during stop should have been suppressed.” review court’s denial motion suppress “dual standard review”; legal conclu sions are reviewed de novo, but findings fact clear error. Edgeworth 2018). 18 1479

“A limited intrusion into an individual’s privacy is per ‐ mitted Fourth where police have reasonable suspicion believe criminal activity is afoot.” United States v. Richmond , F.3d 404, (7th Cir. 2019) (ci ‐ tations omitted). Reasonable suspicion exists when an officer can point specific articulable facts which, taken gether rational inferences those facts, reasonably warrant intrusion. “presume reliability an emergency call reporting an emergency situation for pur poses establishing reasonable suspicion.” United States v. Drake , F.3d 771, (7th Cir. 2006).

Here, Guillory arrived response a call reporting person gun causing a disturbance theater. Reidy identified Bonin person causing dis turbance, Guillory observed gun belt. Ob jectively reasonable grounds existed for police suspect was engaged unlawful activity. As for scope Guillory’s questioning, “[i]t well settled police may ap proach individual public place seek individ ual’s cooperation answering few questions. Such encounter ‘seizure’ within meaning Fourth Amendment.” v. Adamson 519–20 2006); see Drayton (2002) (“Even when enforcement officers have no ba sis for suspecting particular individual, they may pose ques tions, [and] ask identification … .”). After learning suspect reported, Guillory asked him version events, took driver’s license only long enough verify had valid concealed carry license. Minutes later, reentered theater. Because evidence supported finding reasonable suspicion, “seized” violation of the Fourth Amendment, the district court did err denying Bonin’s motion suppress.

Finally, Bonin argues district court violated Sixth by excluding evidence of: Illinois’s concealed carry law; absence signs prohibiting guns theater; testimony Bonin’s bounty hunting instructor, John Howard, about firearms training gave Bonin. review district court’s decisions exclude Bonin’s

proffered evidence abuse discretion. Alayeto 920–21 2010) (citation omitted). But we review de novo question whether eviden tiary ruling infringed upon defendant’s constitutional rights. . (citation omitted). properly excluded Bonin’s proffered ev

idence three reasons. First, correctly ob served evidence was irrelevant under Rule because was charged violating Illinois’s concealed carry laws or movie theater’s policy prohibiting firearms. Evidence about openly wearing gun badge on his belt relevant because conduct was part parcel impersonation Marshal. Conversely, whether Illinois allowed have gun thea ter, theater’s signage issue, what John Howard told about Illinois law, were all irrelevant. None evidence had tendency make fact consequence guilt innocence more less probable. See F ED R. E VID .

Second, Bonin’s proposed evidence failed Rule balancing. Any probative value evidence substan tially outweighed danger would confuse sues mislead into thinking guilt charge somehow intertwined his compliance Illinois training he received from some third party. Third, Bonin presented defense on all these issues. For example, Howard did testify on training he gave his “agents,” like Bonin, as how when they could carry guns. Likewise, testified about his concealed carry li cense, purported work bounty hunter, his training position, unaware prohibited guns. So neither prevented pre senting defense, nor abused its discretion when ex cluded irrelevant misleading evidence requests appeal.

III

Fictional tales are part cinema experience. But when upstaged screen performances make believe marshal, broke law. can save him, instruction evidentiary claims do persuade us, so we A FFIRM

Notes

[1] recount facts light reasonably most favorable jury’s verdict. Murphy Smith 2016).

[2] Count One alleged off duty Markham police officer observed Bonin drive through red light red blue emergency lights acti vated. When officer asked Bonin about emergency lights, Bonin responded U.S. Marshal opened trench coat reveal gun holstered waist. officer reported Bonin suspicious per son duty Markham police, who issued traffic tickets running red light improperly using emergency lights. After this incident, Marshals met cautioned pretending Marshal illegal could lead unintentionally plac ing himself harm’s way. At end meeting, voluntarily surrendered two fake Marshal badges.

[3] Stolen Valor Act U.S.C. 704(b), made crime falsely claim award recipient military decorations med als.

[4] Section prohibits: (1) false impersonation federal official cou pled overt act conformity with pretense (the “acts clause”); (2) impersonation federal official coupled de manding obtaining thing value (the “demands clause”). Lepowitch 704–05 (1943); see v.

[5] have explained “one most important parts appellate advocacy selection proper claims urge appeal.” Howard Gramley 2000). kitchen sink approach embraces can criticized “consum[ing] space should be devoted developing arguments some promise.”

[6] argues Alvarez “confirms … Section facially uncon stitutional.” Each opinions Alvarez said just opposite. Court explained § along other statutes “implicate fraud speech integral criminal conduct,” are “inapplicable” reason ing its holding. Alvarez (plurality opinion); see id. at 734–35 (Breyer, J., concurring judgment) (distinguishing § Stolen Valor Act because its “focus acts impersonation” (em phasis original)); id 748–49 (Alito, J., dissenting) (describing vi olations “false statements fact [that] merit no protection their own right”).

[7] argues Tomsha Miguel holding “called into doubt” subsequent Ninth Circuit en banc opinion, held unconstitutional U.S.C. § 704(a), section Stolen Valor Act criminalizes unauthorized wearing military medals. See Swisher 2016). disagree, Ninth Circuit said opposite Swisher when “reject[ed] … reasoning § 704(a) like statutes described Alvarez prohibit impersonation officials, like U.S.C. 912.”

[8] Although witnesses observed only one gun, re ported actually carried six firearms because how “usually arm[s]” himself.

[9] The Stolen Valor Act provided: “Whoever falsely represents himself or herself, verbally or writing, have been awarded decoration or medal authorized Congress Armed Forces … shall be fined title, imprisoned more than six months, or both.” U.S.C. § 704(b) (2005).

[10] plurality opinion Alvarez called government’s interests “compelling” but held Stolen Valor Act’s restriction “the least restrictive means among available, effective alternatives.” 725–29. Notably, Congress amended Stolen Valor Act after Alvarez decision, now making crime “fraudulently hold[] oneself out recipient” specified military decorations medals “with intent obtain money, property, other tangible benefit.” See U.S.C.

[11] At trial, denied making representations. He did ar gue conduct based mistake, accident, his ignorance law. On appeal, claims “fugitive recovery agent” “proud bounty hunter,” although he has never recovered fugitive. Ac cording Bonin, “confusing relationship between bounty hunting Marshal Service” created misperception said Marshal.

[12] additionally contends “[t]he erroneously re fused instruct jury” follows: (1) “[a] person does not falsely rep resent himself if tells truth he understands it”; (2) “if you find did not prove beyond reasonable doubt Mr. did act good faith, then you must find him guilty.” But neither explains these defense theories nor develops argument applying them case. Because claims are “perfunctory un developed,” they are waived. Northbound Grp., Inc. Norvax, Inc. n.2 2015).

[13] Two days before trial, court’s executive committee reas signed this case Judge Robert Gettleman Judge Donald E. Walter Western District Louisiana, who had been designated perform judicial duties Northern District Illinois. contends Judge Walter’s substitution eve trial rendered him incapable famili arity this case, therefore, “no deference due” evidentiary rulings we should apply heightened standard review all decisions. cites no authority support argument. Regardless, argument fails because Judge Walter’s evidentiary rulings were proper.

Case Details

Case Name: United States v. Michael Bonin

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 26, 2019

Citations: 932 F.3d 523; 18-1479

Docket Number: 18-1479

Court Abbreviation: 7th Cir.