The opinion of the court was delivered by: JAMES FOREMAN, Senior District Judge
Before the Court are two motions filed by defendant Robert J.
Greenwood, Jr. (Docs. 113,114). By way of background, defendant
Greenwood is charged with:
Count 1: knowingly possessing thirty (30) stolen
firearms in violation of 18 U.S.C. § 922(j) and §
Count 2: unlawful possession of a machine gun in
violation of 18 U.S.C. § 922(o);
Count 3: unlawful possession of an unregistered rifle
in violation of 26 U.S.C. § 5861(d) and 5871; and
Count 4: being a felon of possession of firearms in
violation of 18 U.S.C. § 922(g)(1).
(Doc. 1, pp. 1-6).
Defendant's two motions are discussed below.
I. Motion to Dismiss Count Four of the Indictment.
Defendant has filed a motion to dismiss Count Four of the
indictment (Doc. 113). The government has filed a response (Doc.
126). Count Four of the indictment charges defendant with being a
felon in possession of numerous firearms in violation of
18 U.S.C. § 922(g)(1). Defendant has moved to dismiss Count IV on
the ground that 18 U.S.C. § 922(g)(1) violates the
Second Amendment to the United States Constitution which protects the
right to keep and bear arms. As aptly noted by the government,
however, this argument has been rejected on numerous occasions.
See e.g., U.S. v. Wilson, 2002 WL 31387011 at *3 (N.D.Ill., Oct
18, 2002) (rejecting defendant's argument that
18 U.S.C. § 922(g)(1) violates his Second Amendment right to bear arms);
Gillespie v. City of Indianapolis, 185 F.3d 693
, 710 (7th Cir.
1999) (The Second Amendment establishes no right to possess a
firearm "apart from the role possession of the gun might play in
maintaining a state militia."). Accordingly, defendant's motion
to dismiss Count Four of the indictment (Doc. 113) is denied.
Defendant has filed a motion in limine (Doc. 114). The
government has filed a response (Doc. 125).
On December 3, 2002, two law enforcement officers arrested
defendant by handcuffing him behind his back and placing him in
the back seat of a police car. The officers then left the vehicle
to search defendant's place of residence. While the officers were
gone, defendant kicked out the back window of the police car and
escaped on foot.
Defendant ran to a friend's house where the chain of the
handcuffs were cut. Defendant stole a bike, then a truck, and
then fled to his stepfather's residence. He then fled to New
Haven, Illinois, where the rest of his handcuffs were removed. He
then stole a van and drove to Kankakee, Illinois, where he intended to get a false
identification card. On December 8, 2002, while still in
Kankakee, defendant was arrested for battery after engaging in a
bar fight. Also on December 8, 2002, defendant was rearrested on
the present charges. On December 9, 2002, and several times
thereafter, defendant gave a detailed account of his criminal
activities, including an account of what happened after he fled
the scene of his original arrest.
Defendant has moved to exclude any and all evidence of his
escape. Specifically, defendant moves to exclude all evidence
between the time he kicked out the police car window on December
2, 2002, until the time he was rearrested on the present charges
on December 8, 2002. Defendant argues that this evidence does not
relate to the present charges and is therefore irrelevant.
Defendant also argues that this evident has no probative value
regarding defendant's guilt or credibility, and that it the
evidence is so prejudicial that it will deprive him of a fair
The United States Supreme Court has advised courts to be "wary
of the probative value of flight evidence." United States v.
Williams, 33 F.3d 876, 879 (7th Cir. 1994), cert. denied,
514 U.S. 1028 (1995) (citing Wong Sun v. United States,
371 U.S. 471, 483 n. 10, (1963)). Under Federal Rule of Evidence 404(b),
however, evidence of flight may be admissible to show
consciousness of guilt, as well as guilt itself. United States
v. Skoczen, 405 F.3d 537, 548 (7th Cir. 2005) (citing
United States v. Solomon, 688 F.2d 1171, 1176 (7th Cir. 1982);
United States v. Jackson, 572 F.2d 636, 639 (7th Cir. 1978)).
The determination of the probative value of flight as
circumstantial evidence of guilt depends upon the degree of confidence with which these four inferences can be drawn: "(1)
from the defendant's behavior to flight; (2) from flight to
consciousness of guilt; (3) from consciousness of guilt to
consciousness of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to actual
guilt of the crime charged." Skoczen, 405 F.3d at 548 (citing
United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993)).
Here, there appears to be ample evidence to support an
inference that defendant fled from the scene of his original
arrest due to his consciousness of guilt, and actual guilt, of
the crimes charged. First, immediately before he fled, he had
just admitted to Sheriff Ryker that he had stolen guns in the
house. (See Court's Memorandum and Order on Motion to Suppress,
Doc. 89, p. 4). Furthermore, after he was re-arrested on
December 8, 2002, defendant fully confessed to escaping,
providing a detailed account of his travels, and he completely
confessed to the current charges. (See Court's Memorandum and
Order on Motion to Suppress, Doc. 89, p. 6). Finally, the
intensity and other circumstances of his escape, (i.e.,
attempting to cover his tracks by changing vehicles and by
heading to the other end of the state), indicate that defendant
was attempting to get as far away as possible, and as fast as
possible, from the crime scene. The intensity of his escape and
his stated intention to obtain a false identification card are
also highly probative of consciousness of guilt, and of actual
As noted, defendant moves to exclude evidence related to his
escape on the ground that it is unfairly prejudicial. The
Comments to Federal Rule of Evidence 403 state that unfair
prejudice means an "undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid.
403 advisory committee's note. District courts are to apply Rule
403 in a manner that favors the admission of relevant evidence,
and only exclude evidence when unfair prejudice threatens to
overwhelm its probative value. Fed.R.Evid. 402. The greater the
probative value of the evidence, the more willing the court will
be to tolerate some risk of prejudice. United States v. Torres,
977 F.2d 321, 328 (7th Cir. 1992). Here, the Court finds that the
anticipated evidence is highly probative of defendant's guilt,
and that the risk of unfair prejudice created by the escape
evidence is low. "All evidence is `prejudicial' in the sense that
it influences the jury's opinion, otherwise it would not be
relevant." U.S. v. Neely, 980 F.2d 1074, 1086 (7th Cir.
The Court anticipates that at trial the government will present
evidence sufficient to allow the jury to infer that defendant's
escape is circumstantial evidence of defendant's guilt and
consciousness of guilt. Defendant may renew this motion in limine
at trial. Based upon the court's assessment of the facts of this
case and the applicable law, the court concludes that the
evidence of defendant's flight is relevant, and that the
probative value of this evidence substantially outweighs the
danger of unfair prejudice. Accordingly, defendant's motion in
limine is denied at this time.
Based on the above, defendant's motion to dismiss Count 4 of
the indictment (Doc. 113) is DENIED. Defendant's motion ...