May 30, 2019
from the United States District Court for the Central
District of Illinois. No. 16-CR-20077 - Colin S. Bruce,
Flaum, Manion, and Barrett, Circuit Judges.
MANION, CIRCUIT JUDGE
officers pulled Marshon Simon over for failing to signal
sufficiently ahead of turning. A drug-sniffing dog alerted on
Simon's car so officers searched it. They did not find
drugs, but they found a gun. The government charged Simon
with being a felon-in-possession. The district judge denied
Simon's motions for recusal, suppression, and
supplementation. Simon entered a conditional guilty plea and
received a sentence of 15 years. He raises a litany of issues
on appeal. He argues the judge should have recused himself
because before he was a judge he supervised a prior
prosecution of Simon. He argues the judge should have
suppressed the gun because the officers lacked probable cause
to initiate the traffic stop and because they prolonged the
stop to allow for the dog sniff. He argues the dog's
alert was false and the dog was unreliable because he was
improperly trained. He argues the judge should have allowed
him to supplement the evidence after denial of suppression.
Finally, he argues one of his prior felonies should not have
counted as a predicate for purposes of the Armed Career
Criminal Act. Concluding the judge committed no reversible
error in denying Simon's motions, we affirm.
night of August 21, 2016, three police officers in a
"bike patrol unit" surveyed a particular section of
Decatur, Illinois. Officers Jason Danner and Jamie Hagemeyer
rode bicycles. They sat behind a propane tank 145 yards from
the intersection of College and Green Streets. Officer Robert
Hoecker drove a squad car nearby.
bicycle officers saw a vehicle driven by Marshon Simon leave
the 1100 block of North College Street (five blocks away) and
drive toward them. As Simon approached the intersection of
College and Green Streets, he failed to signal at least 100
feet before turning left from College onto Green. This was
according to the bicyclists' testimony at the suppression
hearing, which the district judge credited. At the
bicyclists' request, Hoecker pulled Simon over at 10:26
approached Simon's car and made contact. Hoecker
introduced himself and told Simon the basic reason for the
stop. Hoecker explained bicycle officers would arrive and
provide details. Simon questioned the basis for the stop.
Simon gave his driver's license and proof of insurance to
Hoecker. According to Hoecker, Simon was cooperative and
polite, behaved normally, and was no more nervous than the
normal level of traffic-stop nervousness. Hoecker ran Simon
through the LEADS computer system and found he was validly
licensed and insured. Hoecker finished this check in less
than 2 minutes, before Danner and Hagemeyer arrived on scene
at about 10:29 p.m.
Danner and Hagemeyer arrived they took over "processing
the ticket," including some double-checking.
Hoecker's role was to assist. Hoecker told Danner that
Simon had insurance and a valid license. Hoecker said he
"didn't know if [Danner] wanted the dog or
not." (Appellant Br. at 8, quoting Hoecker's dashcam
video.) Danner asked if Simon had any criminal history.
Hoecker then ran a criminal-history check and found Simon had
prior drug and weapon charges.
made contact with Simon. Danner testified Simon appeared
abnormally nervous. Danner testified Simon asked about the
violation and insisted he used his turn signal. Danner
testified, "I observed him to pull his hand away from
his lap, and he was shaking pretty good, indicating to me
that he appeared nervous." But Danner did not note this
in the police report and he did not mention this when
discussing whether to call a dog.
testified that while speaking briefly with Hoecker he handed
her Simon's materials. She then went to another squad car
that had arrived on scene "to begin the written
warning." Both Danner and Hagemeyer testified about the
various steps and processes a bike patrol unit completes as
part of the mission instigated by a traffic violation,
including monitoring and securing the scene, making contacts
with the driver, running computer checks, and writing out the
warning or ticket.
decided to call a dog. He testified he decided to call a dog
at about 22:30:38 (10:30:38 p.m.) on the clock of
Hoecker's dashcam, about 1 minute after Danner and
Hagemeyer arrived at the traffic stop. An officer called for
the canine unit less than 4 minutes into the stop, when the
ticket was still being processed, according to the
handler Snyder arrived with Rex at the scene at about 10:33
p.m. At that time, the traffic violation was still being
processed, according to the officers'
testimony. Within a few seconds of walking around
Simon's car, Rex alerted. Snyder took less than 20
seconds to prepare Rex, begin the search, and confirm the
alert. The time period from the beginning of the stop to the
alert was about 7 minutes. Hagemeyer testified she had no
part in conducting the actual dog sniff. She testified she
"was writing the warning." She confirmed on
cross-examination that she filled out the traffic warning,
and that Danner issued it to Simon. Defense counsel asked,
"So you were the one who filled out the date, time,
name, address, and birth date?" Hagemeyer answered,
"I filled out the majority of it. I believe [Danner]
signed it, though."
the alert, Simon became angry and insisted there were no
drugs in his car. Danner asked Simon to step out of his car.
The police searched it. They did not find drugs, but they
found a gun. An officer drove Simon to the police station.
Danner handed Simon a traffic citation as he was released
from the station. Danner testified he filled out the
Simon was a felon, the government charged him with being a
felon in possession of a firearm. The case was assigned to
Judge Bruce. Simon moved Judge Bruce to recuse himself
because he had served as the First Assistant United States
Attorney for the Central District of Illinois with
supervisory authority over a prior case against Simon
culminating in conviction. Judge Bruce denied the recusal
moved to suppress the gun, arguing there was no probable
cause to stop his car, the police impermissibly extended the
stop to get a dog on scene, and the dog was unreliable and
improperly trained. Judge Bruce held an evidentiary hearing
over parts of three days and heard testimony from seven
witnesses. He found the officers credible, even if at times
confused. He found the officers had probable cause to think
Simon committed a traffic violation, the officers did not
unreasonably prolong the stop, and Rex was a properly trained
and certified canine whose alert can lead to probable cause.
The judge denied the motion to suppress.
moved to supplement the record with additional, unrelated
traffic citations issued by Danner (to show the differences
in the officers' handwriting to address the issue of
which officer wrote Simon's citation) and a video made by
a defense investigator (to contradict the officers'
version of events leading up to the traffic stop). The judge
denied this motion.
pleaded guilty conditioned on preserving his right to appeal.
He received an enhancement as an Armed Career Criminal. The
judge sentenced him to 15 years in prison, the mandatory
appeals the denials of his motions to recuse, suppress, and
supplement. He also appeals his qualification as an Armed
Career Criminal, arguing his prior conviction for attempted
armed robbery in Illinois in 2000 did not qualify as a
seeks remand because he claims Judge Bruce's handling of
this case conveys the appearance of impropriety. Simon does
not claim Judge Bruce actually had or acted on any unfair
bias against Simon.
argues Judge Bruce should have recused himself under 28
U.S.C. § 455(a): "Any justice, judge, or magistrate
judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned." Below, Simon also sought recusal under 28
U.S.C. § 455(b)(3), but he no longer presses that on
government agrees, we review a preserved § 455(a) claim
de novo. Cf. Fowler v. Butts, 829 F.3d 788, 793 (7th
Cir. 2016) (holding § 455(a) can be vindicated on
appeal); United States v. Dorsey, 829 F.3d 831, 835
(7th Cir. 2016) (a preserved § 455(b) claim is reviewed
recusal under § 455(a), a party must show a reasonable,
well-informed observer might question the judge's
impartiality. United States v. Herrera-Valdez, 826
F.3d 912, 917 (7th Cir. 2016). In other words, the party must
show an objective, disinterested observer fully informed of
the reasons for seeking recusal would "entertain a
significant doubt that justice would be done in the
sought recusal early in the case on the ground that Bruce
served as First Assistant United States Attorney for the
Central District of Illinois from 2010 through 2013. During
that time, the government charged Simon with violating 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). Bruce supervised
the AUSA assigned to that case. Simon pleaded guilty and was
sentenced in 2012 and again (after a successful appeal) in
March 2013. This prior criminal case involved occurrence
facts separate from those in the present case. But the prior
case is directly relevant to this case because the conviction
in the prior case enhanced Simon's sentence in this case
as an Armed Career Criminal.
Bruce denied the recusal motion. He noted he could not
remember any participation in past prosecutions of Simon.
Judge Bruce observed that even if he did participate in a
past prosecution, he did not participate in the current
prosecution, "which consists of new charges, wholly
unrelated to those brought against [Simon] in the past."
(Text Order, Dec. 6, 2016.)
likens this case to United States v. Herrera-Valdez.
There, the government prosecuted a defendant for illegal
reentry after deportation. Before trial on the
illegal-reentry charge, defendant moved to disqualify Judge
Der-Yeghiayan because he had served as the District Counsel
for the Immigration and Naturalization Service when defendant
was deported. District Counsel Der-Yeghiayan's name was
listed in several places in INS's briefing supporting
deporting. Judge Der-Yeghiayan denied the motion to
disqualify and defendant appealed. We observed that 28 U.S.C.
§ 455(a) requires a judge to "'disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.'" Herrera-Valdez,
826 F.3d at 917. We reversed the denial of disqualification,
concluding "a reasonable, disinterested observer could
assume bias from the fact that the judge presiding over the
defendant's prosecution for illegal reentry was the same
person who ran the office that pursued, and succeeded in
obtaining, the removal order that is the source of his
current prosecution." Id. at 919. We noted this
was particularly true given that the linchpin of
defendant's case against the illegal-reentry charge was a
collateral attack against the removal order. The judge need
not have been actually involved in the prior case or be
actually biased in the subsequent case to trigger the
requirement to recuse under § 455(a).
here, the prior case does not directly give rise to or
underly the present case. And here, Simon attempts no
collateral attack against the prior conviction. Simon's
2011 conviction was not, and could not have been, the
linchpin to his defense in this subsequent case. A defendant
in a federal sentencing proceeding may not collaterally
attack a prior conviction used to enhance his sentence, with
an exception not relevant here. See Daniels v. United
States, 532 U.S. 374, 382-83 (2001); Custis v.
United States, 511 U.S. 485, 487 (1994). Any collateral
attack against the prior conviction under 28 U.S.C. §
2255 would have been time-barred. So there was no possibility
of Judge Bruce adjudicating the merits of a collateral attack
against Simon's 2011 conviction here. And consequently
there was no reason to think Simon might have declined to
launch a collateral attack against the 2011 conviction
because he feared Judge Bruce would not be receptive to such
an attack, or would punish him in the present case for making
such an attack.
prior and subsequent cases at issue in Herrera-Valdez
are directly related in a way the prior and subsequent
cases at issue here are not. A closer analogy to
Herrera-Valdez is Simon's prior conviction under
the supervision of First AUSA Bruce and the proceedings for
revocation of supervised release involving that prior
conviction and the gun possession on August 21, 2016.
Simon's prior conviction directly gives rise to and
underlies the revocation proceedings. So Judge Bruce recused
himself from them. As this relationship is not present
between Simon's prior case and the current
felon-in-possession case, there was no need for Judge Bruce
to recuse himself here.
the prior conviction enhanced the sentence for the present
conviction under the ACCA. But this is mere happenstance. It
is not the same kind of direct connection we found
problematic in Herrera-Valdez. Another distinction
between Herrera-Valdez and this case is that there,
the future judge's name was on the briefs against the
defendant, but here the future judge's name was not on
the briefs. This is a relevant consideration ...