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United States v. Bonin

United States Court of Appeals, Seventh Circuit

July 26, 2019

United States of America, Plaintiff-Appellee,
v.
Michael Bonin, Defendant-Appellant.

          Argued February 7, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 cr 22-1 - Robert W. Gettleman, Judge.

          Before Bauer, Hamilton, and Brennan, Circuit Judges.

          Brennan, Circuit Judge.

         Justice Holmes introduced a mainstay of First Amendment jurisprudence when he wrote: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U.S. 47, 52 (1919). A century later, Michael Bonin brings us back to a theater to examine the limits of protected speech.

         After fellow moviegoers asked Bonin to stop talking on his phone during a film, Bonin scolded the audience, said he was a U.S. Marshal speaking with "the government," flashed a gun on his belt, and threatened "anyone [who] had a problem with it, they could take it out in the hall." Panicked patrons called 911 and theater security in response. Everyone now knows Bonin is not a U.S. Marshal, but when police arrived, Bonin convinced them too that he was, and they allowed him to reenter the theater. Such a second chance usually preludes a character arc, but not in this story. As Bonin walked to his seat, he raised his arms, again exposed his gun, and bellowed, "See, I told you I'm a U.S. Marshal." Moments later, police returned and removed him from the theater.

         Bonin's ruse resulted in an indictment under 18 U.S.C. § 912. That statute makes it a crime to impersonate an officer or employee of the United States. A jury found Bonin guilty. He now claims § 912 is an unconstitutional restriction on free speech and challenges multiple evidentiary rulings and jury instructions. Because none of his claims offer any reason to reverse the jury verdict, we affirm.

         I

         The events described above occurred in 2014 at the AMC River East theater in Chicago.[1] Brian Reidy, an off-duty Chicago police officer moonlighting as theater security, responded first and asked Bonin to step out into the hallway. Reidy observed that Bonin openly wore a gold badge and gun on his belt. When Reidy asked Bonin about his employment, Bonin again falsely claimed to be a U.S. Marshal. Bonin also told Reidy this was his "first night off" after "working many months."

         Minutes later, Chicago police officer Brenda Guillory arrived in response to a 911 call about a person in a theater causing a disturbance with a gun. Two more police officers responded as backup. As Guillory approached Bonin, she saw that he wore a "full duty belt" typically worn by law enforcement with a gun, magazine, and badge on it. Guillory's concerns were "relaxed," however, after Bonin told her that he was a U.S. Marshal. Bonin also gave Guillory his driver's license and photo identification classifying him as a "U.S. Fugitive Enforcement Agent" for the "U.S. Fugitive Enforcement Bureau." The identification card also contained a "star" logo with the words "U.S. Investigations." Similarly, Bonin's gold badge read, "U.S. Fugitive Enforcement Bureau," with the Seal of the United States and "The United States of America" imprinted in the center.

         Guillory ran a check on Bonin's driver's license, which revealed no outstanding warrants and Bonin's valid concealed carry license. The exchange between Guillory and Bonin lasted about ten to fifteen minutes. Because police and theater security believed Bonin was a U.S. Marshal, they allowed him back into the movie and asked him to keep quiet for the rest of the night.

         Bonin immediately ignored the instruction. As he reentered the theater, he raised his arms above his head, displayed his gun, and blustered, "See, I told you I'm a U.S. Marshal." One moviegoer ran out of the theater and told Reidy that Bonin returned boasting, "I'm a U.S. [expletive] Marshal, and there's nothing you can do about it." Another patron, Patrick Alfich, sent a series of text messages to a friend in which he stated:

[J]ust got out of the movie w[h]ere drunk U.S. marshal with a gun threatened the audience ... [.] Everyone started yelling when he took a phone call during the movie[.] ... Then the police let him back into the theater because he's a U.S. marshal ... [H]e had his gun on him and his belt loop[.] ... [S]aid he's a U.S. marshal and the government was calling him and everyone can go [expletive] themselves and that they had an issue that he was going to take it out into the hall way [.]

         Police, who had yet to leave the scene, escorted Bonin out. As Bonin exited, he walked with a limp and explained to Guillory that he injured his leg executing a search warrant; another lie, as Bonin actually injured his leg in a motorcycle accident. At that point, Guillory offered Bonin a ride home "as a courtesy" because she still believed he was a law enforcement officer. Bonin declined Guillory's offer.

         In response to Bonin's ruckus, the theater gave customers free movie passes and advised them to contact the U.S. Marshals Service if they wished to complain. Alfich did just that. Six weeks later, Bonin was charged with false impersonation of a U.S. Marshal in violation of 18 U.S.C. § 912.

         A federal grand jury indicted Bonin for twice falsely impersonating a U.S. Marshal: once in 2013 in Markham, Illinois (Count One), [2] and the 2014 incident described above (Count Two). At the government's request, the district court dismissed Count One of the indictment in January 2017.

         One month later-while awaiting trial on the movie theater charge-Bonin took his show on the road. Police observed a car driving in Beecher, Illinois, with flashing red and white emergency lights activated. As the car approached, the police pulled over to allow it to pass, believing it was an emergency vehicle. But when the vehicle sped by police realized it was not a paramedic or patrol car as they expected, but a Ford Bronco adorned with a large "AGENT" decal on the windshield and law enforcement insignia on the sides. Bonin was the driver. After that, a grand jury returned a two-count superseding indictment charging Bonin with § 912 violations for the AMC theater incident (Count One) and this new act of false impersonation while driving. At Bonin's request, the district court severed the two counts and ordered trial to proceed on the theater charge.

         Bonin raised numerous pretrial challenges to the government's movie theater charge. Initially he moved to dismiss the indictment, pointing to United States v. Alvarez, 567 U.S. 709 (2012) (plurality opinion), which held speech restrictions imposed by the Stolen Valor Act of 2005 violated the First Amendment. Bonin claims the logic of Alvarez renders § 912 unconstitutional by extension.[3] The district court denied Bonin's motion because his "arguments rely on an over-exaggerated interpretation of Alvarez," in which the Supreme Court's plurality, concurring, and dissenting opinions discuss § 912 in dicta as an example of a constitutional statute. The court concluded that no part of the plurality's opinion in Alvarez made § 912 "somehow vulnerable" to Bonin's arguments.

         The district court also refused to give several of Bonin's proposed jury instructions. On the elements of the offense, Bonin proposed instructions that explained a § 912 violation requires: (1) a false assertion of authority; (2) an intent to defraud or a "knowing" violation; and (3) evidence that the false pretense of federal authority caused others to change their behavior in some way. Bonin also requested an instruction requiring unanimity on which alleged false representation violated the law, as well as an instruction informing that the First Amendment protects freedom of expression.

         On the elements, the district court found that Bonin's proposed instruction focused on the incorrect § 912 offense.[4] It rejected Bonin's proposal and instructed the jury that, to convict, it would need to find that Bonin: (1) "falsely assumed or pretended to have been an officer or employee acting under authority of the United States Marshals Service"; and (2) "acted as such." The district court's instructions further stated that "[w]ith respect to acting 'as such,' the government must prove that [Bonin] acted in a manner consistent with his pretended authority as an officer or employee of the United States." With respect to Bonin's proposed unanimity and First Amendment instructions, the court concluded they were inconsistent with the facts and law at issue in the case.

         Bonin also moved to suppress his statements to Reidy and Guillory on two theories: that his removal from the theater constituted an unlawful seizure, and that the officer failed to read him Miranda warnings. The district court denied Bonin's suppression motion, finding Bonin's encounter with police was consensual, and ruling police had reasonable suspicion to question Bonin based on reports that a person with a gun was causing a disturbance in the theater.

         At trial, the jury heard from Reidy, Guillory, and Alfich, each of whom testified that Bonin held himself out to be a U.S. Marshal. Alfich also testified about Bonin's threats and his berating of the movie audience. The government also presented testimony from deputy U.S. Marshal Michael Woods-Hawkins who explained the basic duties of the position, including fugitive recovery and the accessories of a U.S. Marshal, such as wearing a weapon and badge on the belt.

         Bonin testified on his own behalf. On direct examination, he contradicted the testimony of Reidy, Guillory, and Alfich, denying that he raised his voice at the movie audience or pretended to be a U.S. Marshal. He also testified the badge he wore at the theater and the identification card he presented to Guillory were given to him by the entity that "employed" him as a bounty hunter. The gold badge bore the words "U.S. Fugitive Enforcement Bureau" with the Seal of the United States and the words "The United States of America" in the center of the badge. The ID card contained the title "U.S. Fugitive Enforcement Bureau/' and termed Bonin as a "Fugitive Recovery Agent."

         On cross-examination, Bonin again testified that he never cursed at the audience, never said he was a U.S. Marshal, nor tried to trick anyone into thinking he was a U.S. Marshal at any time in his life, including the night at the theater. To rebut this testimony, the government showed Bonin an assortment of badges and other items seized from his home that contained the words "Fugitive Recovery Agent," "U.S.," or "United States." The items also applied semblances of the Seal of the United States. Bonin admitted he purchased these items for himself. One of these items, a knit cap with federal insignia, included the motto of the United States Marshals Service. He also acknowledged he put a gold magnet on his vehicle bearing an image of a star badge with the words "Fugitive Recovery Agent" encircling the Seal of the United States.

         The government also asked Bonin about pictures he posted on his public Facebook page. These included a picture of Bonin wearing a uniform with a badge, and another picture of his car with the decals "U.S. Detective" and "CAUTION K-9." Bonin admitted placing those indicators on his vehicle, but he denied doing so to make people think he was a federal law enforcement officer.

         Because Bonin's testimony called into question the veracity of Alfich's prior testimony, the government re-called Alfich. Before trial, the district court had excluded Alfich's text messages. But after Bonin denied Alfich's account of Bonin's actions during the movie, the court allowed the government to introduce Alfich's texts as prior consistent statements.

         After a three-day trial, the jury returned a guilty verdict. Bonin moved for judgment of acquittal and a new trial, but the district court denied his motions. At sentencing he was placed on three years' probation.

         II

         On appeal Bonin submits a horde of legal challenges.[5]Three predominate: a challenge to § 912 under the First Amendment, objections to the jury instructions, and evidentiary disputes.

         A

         The Constitution mandates that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST, amend. I. Bonin claims § 912 imperils that freedom. We review this constitutional question de novo. Ctr. for ...


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