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United States v. Simon

United States Court of Appeals, Seventh Circuit

August 21, 2019

United States of America, Plaintiff-Appellee,
Marshon Simon, Defendant-Appellant.

          Argued May 30, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. 16-CR-20077 - Colin S. Bruce, Judge.

          Before Flaum, Manion, and Barrett, Circuit Judges.


         Police 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.

         I. Facts

         On the 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.

         The 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 p.m.

         Hoecker 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.

         Once 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.

         Danner 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.

         Hagemeyer 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.

         Danner 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 officers' testimony.

         Canine 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.[1] 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."

         After 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 citation.

         II. Procedural posture

         Since 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 motion.

         Simon 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.

         Simon 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.

         Simon 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 minimum.

         Simon 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 violent felony.

         III. Analysis

         A. Recusal

         Simon 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.

         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 appeal.

         As the 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 de novo).

         To win 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 case." Id.

         Simon 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.

         Judge 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.)

         Simon 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).

         But 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.

         The 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.[2] 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.

         True, 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 ...

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