February 7, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 cr 22-1 -
Robert W. Gettleman, Judge.
Bauer, Hamilton, and Brennan, Circuit Judges.
Brennan, Circuit Judge.
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
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.
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.
events described above occurred in 2014 at the AMC River East
theater in Chicago. 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
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
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.
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
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.
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.
federal grand jury indicted Bonin for twice falsely
impersonating a U.S. Marshal: once in 2013 in Markham,
Illinois (Count One),  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.
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
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. 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
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.
elements, the district court found that Bonin's proposed
instruction focused on the incorrect § 912
offense. 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.
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.
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.
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
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.
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.
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.
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.
appeal Bonin submits a horde of legal
challenges.Three predominate: a challenge to §
912 under the First Amendment, objections to the jury
instructions, and evidentiary disputes.
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 ...