Argued: October 3, 2013.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 00533 -- Robert M. Dow, Jr., Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Michelle Marie Petersen, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For DARNELL BOYCE, Defendant - Appellant: Gary Ravitz, Attorney, RAVITZ & PALLES, Chicago, IL.
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge, concurring.
Williams, Circuit Judge.
After a foot chase during which an officer said he saw Darnell Boyce throw a gun into a yard, officers recovered the gun from the area and also found ammunition for the gun in Boyce's pocket. A jury convicted Boyce of being a felon in possession of a firearm and ammunition. He maintains that he could lawfully possess a handgun on the premise that his civil rights had been restored. In light of our precedent, we disagree and conclude that a letter to Boyce restoring his civil rights did not do so for all his prior felonies. Boyce also challenges the admission at trial of statements of Sarah Portis, the mother of four of his children, made during a 911 call, including that Boyce had a gun. We find no abuse of discretion in the district court's admission of the statements under the excited utterance exception to the hearsay rule because they were made while under the stress of a domestic battery and related to it. We affirm the district court's judgment.
Sarah Portis called 911 at around 7:45 p.m. on March 27, 2010, asking that police come to her residence because her child's father had just hit her and was " going crazy for no reason." The 911 operator asked, " Any weapons involved?" to which Portis responded, " Yes." The operator asked what kind, and Portis said, " A gun." The operator said, " He has a gun?", then " Hello?", and Portis responded, " I, I think so. 'Cause he just, he just." After the operator said, " Come on," Portis responded, " Yes!" twice. The operator again inquired, " Did you see one?" and Portis replied, " Yes!" The operator then cautioned Portis that if she wasn't telling the truth, she could be taken to jail. Portis responded, " I'm positive." After giving a description of what Boyce was wearing, the operator asked where he was at the moment. Portis responded that she " just ran upstairs to [her] neighbor's house" and didn't know whether Boyce had left her house yet.
Within minutes, Officers Robert Cummings and Eugene Solomon responded to the 911 call. After determining Boyce was no longer in the apartment, they interviewed Portis for about five to ten minutes. Officer Solomon described Portis as " appear[ing] emotional as if she just had an argument, perhaps a fight, someone who was just running." The officers then went to their car to complete a case report for domestic battery. While they were sitting in their squad car, the officers saw that Boyce had returned to the outside of Portis's residence and was calling out her name. Officer Solomon asked Boyce to come over, but Boyce ran away instead,
and Officer Cummings ran after him. During the chase, Officer Cummings saw Boyce reach toward the midsection of his body, retrieve a nickel-plated handgun, and toss it over a garage into a yard. The officer caught up with Boyce soon afterward and detained him. Officers found a silver.357 Magnum handgun in the area where Officer Cummings saw Boyce throw a gun. Officers also found three.357 bullets in Boyce's right front pants pocket after they arrested him.
Boyce was charged with one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1). While he was in jail awaiting trial, Boyce sent Portis a letter requesting that she recant her statement that he had a gun. He even provided the language he wanted her to use in a letter he wanted her to write to him:
It seems like my whole life is going down since I called the police and I lied on you. I didn't know that those police was going to actually put a gun on you. Like I said before, I am so sorry for calling them and lying about you had a gun and hit me, but you just misunderstand how I felt when I saw you and the other girl hugging and kissing.... So the only way I thought of paying you back was to call the police and get you locked up once again. I'm so sorry.
Boyce and Portis also spoke by telephone while he was in jail, and Boyce said " our story" to which they would stick was that Portis made the whole thing up because she was mad he had been talking to another woman.
Portis did not testify at trial, but the government played a recording of her 911 call for the jury. In arguing that Boyce possessed a firearm on March 27, 2010, the government pointed to Officer Cummings's testimony that he saw Portis throw a gun, other officers' testimony recounting the recovery of the gun in the area and ammunition matching the gun in Boyce's pocket, and Portis's statement on the 911 call that Boyce had a gun. A jury found Boyce guilty on both charged counts. The district court concluded that Boyce had three prior violent felonies or serious drug offenses that mandated a minimum term of fifteen years' imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). The court sentenced him to 210 months' imprisonment, two and a half years over the mandatory minimum sentence. Boyce appeals.
A. No Restoration of Civil Rights
Before we consider the admission of Portis's statements in the 911 call, we address Boyce's argument that the indictment against him should have been dismissed. Boyce contends that the district court should have granted his motion to dismiss the indictment for lack of a qualifying predicate felony conviction. We review that decision de novo, and we review the district court's factual findings for clear error. United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007).
Boyce was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). A prior felony is not a predicate offense for a § 922(g)(1) violation if the defendant " has been pardoned or has had civil rights restored" unless the " restoration of civil rights expressly provides" that the person may not possess firearms. 18 U.S.C. § 921(a)(20). Boyce maintains his civil rights had been restored regarding his prior felony ...