United States v. Michael Hancock

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 15‐1956 UNITED STATES OF AMERICA, Plaintiff‐Appellee,

v.

MICHAEL ALLAN HANCOCK, Defendant‐Appellant. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:13‐cr‐00128‐bbc‐1 — Barbara B. Crabb, Judge. ____________________

ARGUED NOVEMBER 13, 2015 — DECIDED DECEMBER 28, 2016 ____________________

Before POSNER, RIPPLE, and SYKES, Circuit Judges. RIPPLE, Circuit Judge. Michael Allan Hancock was indicted on one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and on one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Before trial, Mr. Hancock challenged the search warrant that had led to his arrest by requesting a hearing under Franks v. Delaware, 438 U.S. 154 (1978). In sup‐

2  No. 15‐1956

port of that motion, he maintained that critical evidence bear‐ ing on a confidential informant’s credibility had been omitted from the probable cause affidavit. Following the magistrate judge’s recommendation, the district court denied the motion. Mr. Hancock also moved in limine to preclude the use of prior convictions as the basis for the § 922(g)(1) count. He maintained that the release document issued to him by the Colorado Department of Corrections lulled him into believing that all of his rights, including the right to possess a weapon, had been restored. The district court, assessing the release document within its four corners, held that the document did not communicate any restoration of rights to Mr. Hancock. A jury later convicted Mr. Hancock on both counts of the indict‐ ment. The court imposed concurrent sentences of 120 months 1 on each count. Mr. Hancock now challenges both of these rulings. We conclude that, viewed in its totality, the probable cause affi‐ davit amply supports the issued search warrant. We also agree with the district court that, on its face, the release docu‐ ment does not speak to the restoration of rights. We therefore affirm Mr. Hancock’s convictions.

1 The jurisdiction of the district court was premised on 18 U.S.C. § 3231. No. 15‐1956  3

I BACKGROUND A. On August 14, 2013, law enforcement officers executed a no‐knock search warrant on the property of Arthur Erickson. This property included a residence, out buildings, and sur‐ rounding land. Mr. Hancock served as a caretaker of this property during the winter months. When Erickson was away, he lived in the residence; when Erickson was at home, Mr. Hancock stayed in a recreational vehicle parked on the property. The search warrant, issued earlier the same day, was sup‐ ported by the probable cause affidavit of Chris Drost, an in‐ vestigator with the St. Croix Sheriff’s Office with fifteen years’ experience. In that affidavit, Investigator Drost recounted that he had interviewed Mr. Hancock (also known as “Munchy”) in June 2013, while Mr. Hancock was detained at the St. Croix County Jail. During that interview, Mr. Hancock referred to himself as a “one percenter,” which Investigator Drost under‐ stood to mean that Mr. Hancock was affiliated with the “Out‐ 2 law Motorcycle Gang.” Mr. Hancock further informed Inves‐ tigator Drost that he previously had been charged with a va‐ riety of crimes. Mr. Hancock also acknowledged that, on the day he had been brought to jail, he was with his girlfriend, who was identified (using police records) as Sarah Jo Davis. The affidavit also contained information provided to In‐ vestigator Drost by a confidential informant, Jeremy Ray Pea‐ body. In June 2013, Peabody began giving information about

2 R.17‐1 (Application for Search Warrant) at 4. 4  No. 15‐1956

drug activity and stolen goods on the Erickson property to In‐ vestigator Drost. Peabody previously had provided infor‐ mation to the St. Croix County Sheriff’s Office for fifteen years, and this information had led to several felony arrests and convictions. He reported to Investigator Drost that, ap‐ proximately ten months earlier, Robert Graves had intro‐ duced Mr. Hancock to him and that Graves had identified Mr. Hancock as his supplier. Peabody continued that, at their first meeting, he had used methamphetamine with Mr. Han‐ cock and had befriended him in the hope that he would be able to purchase drugs directly from Mr. Hancock and cut out the middleman. After two buys with Graves, Peabody was able to purchase drugs directly from Mr. Hancock. Peabody subsequently made more than twenty visits to the Erickson property to purchase methamphetamine from Mr. Hancock. He was, consequently, able to provide detailed information about Mr. Hancock, his business, and the prop‐ erty. Peabody explained that Mr. Hancock and Davis lived in an RV on the property and that Mr. Hancock had access to all of the buildings on the property, including a “large pole 3 shed” from which he sold drugs. Peabody further reported that he had witnessed approximately forty to sixty drug sales to other individuals on the property, that Mr. Hancock had accepted stolen property as well as cash from his customers, and that Mr. Hancock had informed him that the property was stolen. Peabody had seen the stolen items (including a car, ATVs, and chainsaws) on the Erickson property. He also warned Investigator Drost that he considered Mr. Hancock to be dangerous, in part because of Mr. Hancock’s affiliation

3 Id. at 5. No. 15‐1956  5

with the Outlaw Motorcycle Gang. Peabody “advised … that within the last several months he ha[d] seen a handgun in Munchy’s living quarters located in the RV” and that Mr. Hancock had access to the handguns inside the Erickson 4 residence. Peabody had seen Mr. Hancock use the weapons 5 to “shoot[] at lights and shadows on the property.” Peabody also provided Investigator Drost with cell phone numbers for Mr. Hancock and Davis. He said that Mr. Han‐ cock used Davis’s cell phone to conduct his drug activities. Based on this information, Investigator Drost had secured a search warrant for Davis’s cell phone number on July 15, 2015. The search revealed numerous text messages with references to drug transactions during the week prior to the application for the warrant to search the Erickson property. The probable cause affidavit also included information provided by Rachelle Lowrie. Lowrie had met Mr. Hancock in June 2013 through Davis. Lowrie asked Davis how she could purchase methamphetamine from Mr. Hancock and was told that she “could go through Davis to pur‐ 6 chase … from Munch[y].” Lowrie further explained that, on August 6, 2013, “she had been driven to [a] court appearance by Detective Funk of the Prescott Police Department” and that

4 Id. at 7. 5 Id. 6 Id. at 9. 6  No. 15‐1956

7 Mr. Hancock may have seen her. Mr. Hancock later accused 8 her “of being a snitch and informant for the police.” On August 11, 2013, Mr. Hancock and another man, iden‐ tified as “Shawn,” came to Lowrie’s residence. Mr. Hancock tied Lowrie to the sofa, sexually assaulted her, and “extin‐ 9 guished lit cigarettes” on her. Mr. Hancock warned her against “snitch[ing]” and threatened her and her daughter 10 with further harm if she reported him to the police. Lowrie believed that Mr. Hancock took from Lowrie prescription medications, jewelry, her wallet, and other items, including pictures of her daughter. Finally, the probable cause affidavit recounted that, after transporting Lowrie to the hospital, Investigator Drost spoke with the nurse who conducted Lowrie’s physical examina‐ tion. The nurse confirmed that Lowrie’s injuries were con‐ sistent with what Lowrie had reported to Investigator Drost. On the basis of this affidavit, a search warrant for the Er‐ ickson property was issued. Upon execution of the search warrant, the officers found a short barreled shotgun, shotgun shells, some allegedly stolen property, a small amount of methamphetamine, and some drug paraphernalia.

7 Id. 8 Id.

9 Id. 10 Id. No. 15‐1956  7

B. 1. On October 10, 2013, a grand jury returned a two‐count indictment charging Mr. Hancock with possession of a fire‐ arm by a felon, in violation of 18 U.S.C. § 922(g)(1), and with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Mr. Hancock moved to sup‐ press the evidence obtained during the execution of the search warrant and requested an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), alleging that the affidavit lacked probable cause, contained material false statements concern‐ ing the alleged sexual assault, and omitted material infor‐ mation, namely evidence of Peabody’s criminal record and the fact that he was in custody for assaulting a police officer at the time he provided the relevant information. The Govern‐ ment opposed the motion to suppress and the request for a Franks hearing. The magistrate judge recommended that the district court deny the motion to suppress and deny the request for a Franks hearing. In the report and recommendation, the magistrate judge identified four categories of evidence in the affidavit that supported the search warrant: (1) Investigator Drost’s in‐ terview of Mr. Hancock; (2) Peabody’s information to the po‐ lice; (3) Davis’s text messages related to drug dealing; and (4) the interview and medical examination of Lowrie. The mag‐ istrate judge concluded that Investigator Drost had been reck‐ less in omitting Peabody’s criminal convictions from the affi‐ davit. He concluded nevertheless that, even if the evidence of Peabody’s criminal history had been included in the probable cause affidavit, the warrant would have issued. Specifically, the magistrate judge noted that Peabody’s account had been

8  No. 15‐1956

detailed and corroborated by other evidence. Moreover, prob‐ able cause to search the premises would have existed based on the information provided by Lowrie: Lowrie’s account, as corroborated in part by the [Sexual Assault Response Team] nurse’s report to Investigator Drost … provides a separate and severable basis to search the premises for the ar‐ ticles that Lowrie claims Hancock took from her. Lowrie provided a vivid and detailed ac‐ count of what happened along with a lengthy and detailed list of what Hancock stole from her and took with him. This court has no reason to doubt this account and it could stand alone as a basis to uphold this search warrant.[11] The magistrate judge therefore recommended denying the re‐ quest for a Franks hearing and the motion to suppress. Mr. Hancock objected to the report and recommendation. In his view, the finding of a reckless omission of Peabody’s criminal convictions mandated a Franks hearing. Notably, Mr. Hancock did not address the magistrate judge’s finding that the interview and medical examination of Lowrie pro‐ vided an independent basis for the search. The district court accordingly held that Mr. Hancock had waived any objection to the finding of the discrete sufficiency of the rape allegations and otherwise adopted the magistrate judge’s report and rec‐ ommendation.

11 R.49 at 30–31. No. 15‐1956  9

2. Prior to trial, Mr. Hancock filed a motion in limine to pre‐ clude the Government from introducing evidence of his Col‐ orado felony convictions as the factual predicates for the § 922(g)(1) charge. Mr. Hancock argued that, by operation of state law, all of his rights to citizenship had been restored upon his release from prison. Moreover, the Colorado Depart‐ ment of Corrections had provided him with an “uncondi‐ 12 tional” discharge upon his release. According to Mr. Han‐ cock, because he had been unconditionally discharged, his convictions could not be used as predicate offenses under § 922(g)(1). The district court denied the motion. It further held that nothing in the document issued by the Colorado Department of Corrections told defendant that any or all of his civil rights had been restored. “Therefore, he was not misled into think‐ 13 ing he could possess a firearm.” A jury convicted Mr. Hancock on both counts of the indict‐ ment, and the court imposed concurrent sentences of 120 months. Mr. Hancock timely appealed.

12 R.62‐1. 13 R.88 at 5. 10  No. 15‐1956

II DISCUSSION A. Mr. Hancock maintains that the district court erred in denying his motion to suppress and his motion for a Franks hearing. In reviewing a motion to suppress, “we review legal conclusions de novo and factual findings for clear error. Simi‐ larly, we review the denial of a Franks hearing for clear error, but any legal determinations that factored into the ruling are reviewed de novo.” United States v. Glover, 755 F.3d 811, 815 (7th Cir. 2014) (citation omitted). We recently have reiterated the standard for granting a Franks hearing in United States v. Mullins, 803 F.3d 858 (7th Cir. 2015). We explained that [a] defendant is entitled to a Franks hearing—an evidentiary hearing regarding the veracity of in‐ formation included in a search warrant applica‐ tion—if he can make a substantial preliminary showing that: (1) the warrant affidavit con‐ tained false statements, (2) these false state‐ ments were made intentionally or with reckless disregard for the truth, and (3) the false state‐ ments were material to the finding of probable cause. Id. at 861–62. This rule applies to omissions as well as affirm‐ ative misrepresentations. Id. at 862. However, “[i]f sufficient allegations existed warranting the search irrespective of the affiant’s alleged errors, a hearing is unnecessary and the mo‐ tion should be denied.” Id. We assess the sufficiency of the

No. 15‐1956  11

allegations supporting the warrant according to the “totality of the circumstances.” Id. at 861. Specifically, [w]hen probable cause is supported by infor‐ mation supplied by an informant, we particu‐ larly look to several factors: (1) the degree to which the informant has acquired knowledge of the events through firsthand observation, (2) the amount of detail provided, (3) the extent to which the police have corroborated the inform‐ ant’s statements, and (4) the interval between the date of the events and the police officer’s ap‐ plication for the search warrant. Id. at 863 (quoting United States v. Sutton, 742 F.3d 770, 773 (7th Cir. 2014)). Here, the magistrate judge looked to these standards in evaluating whether a Franks hearing was warranted. He con‐ cluded that Investigator Drost’s omission of Peabody’s crimi‐ 14 nal record from the probable cause affidavit was reckless. He therefore “consider[ed] the affidavit, … incorporating omit‐ ted material facts, and determine[d] whether probable cause existed.” United States v. Harris, 464 F.3d 733, 738 (7th Cir. 2006); see also United States v. Robinson, 546 F.3d 884, 888 (7th Cir. 2008) (same). The magistrate judge reviewed the infor‐ mation provided by Peabody and concluded that it corrobo‐ rated Mr. Hancock’s statements to Investigator Drost, the text messages, and Lowrie’s statement. The magistrate judge also believed that, “[i]n light of Peabody’s long‐term, intertwined history as both a criminal and a snitch, a court considering the

14 See R.49 at 28. 12  No. 15‐1956

reliability of his information would have to be skeptical but receptive: notwithstanding his personal criminality, Peabody 15 was a long‐term, reliable informant.” “In this particular case,” the magistrate judge continued, “Peabody’s lengthy, richly detailed, first‐hand report of what Hancock and Davis were doing at the premises—involving precisely‐described stolen property, ongoing drug runs to Hastings, followed by sales and consumption on the premises, [and] meth‐fueled 16 gunplay … strikes this court as worthy of credence.” We per‐ ceive no legal error in the magistrate judge’s recitation of the applicable standards and no factual error in his thorough con‐ sideration of the evidence on which the probable cause affi‐ davit was based. Mr. Hancock does not point to any specific flaw in the magistrate judge’s analysis, which was adopted by the district 17 court as its own. Instead, he claims that our decision in Glover mandates a Franks hearing every time “substantial ad‐ verse information about the informant’s credibility” is omit‐ ted from a probable cause affidavit. Glover, 755 F.3d at 820. This is a misreading of our holding in Glover. In Glover, a search warrant had been issued on the basis of an officer’s affidavit, which contained the following facts: On July 23, 2010, confidential informant “Doe” spoke with Officer Brown regarding a felon, known to Doe as “T.Y.,” in possession of two handguns: a black semiautomatic and a black

15 Id. at 30. 16 Id. 17 See R.55 at 3–4. No. 15‐1956  13

.38‐caliber revolver. T.Y. lived at 905 Kedvale in Chicago. Doe said he had seen the guns while in the house the day before and “many times over the course of the last six weeks.” Doe said T.Y. needed the guns because he had a “dope spot” (a street‐level point of sale) for heroin. Doe also said T.Y. was a member of the Traveler Vice Lords gang and part of a “stick‐up crew” who robbed people carrying large amounts of money or drugs. Id. at 814–15. The affidavit, however, “did not include any available information on Doe’s credibility,” including that he was affiliated with a gang, that he had a lengthy criminal his‐ tory (including four crimes committed while he was working as an informant), that he “had used aliases when questioned by police officers,” and that he had “received payment for providing information to the police in the past.” Id. at 815. Applying the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213 (1983), we held that a Franks hear‐ ing was warranted. Looking at the factors that inform a Franks‐hearing determination, see Mullins, 803 F.3d at 863, we noted that the “tip was minimally corroborated,” and the in‐ formant had “provided little detail.” Glover, 755 F.3d at 817. Moreover, the “checkered past” of the informant called into question the reliability of the information, namely Doe may have “report[ed] Glover merely because of gang rivalries.” Id. Under these circumstances, “[t]he complete omission of infor‐ mation regarding Doe’s credibility [was] insurmountable.” Id. at 816. Unlike the information in Glover, however, here the prob‐ able cause affidavit contained specific information concerning

14  No. 15‐1956

18 Peabody and his reliability as a witness. As well, the infor‐ mation provided by Peabody differed in quantity and quality from that provided in Glover: Peabody gave highly detailed descriptions of Mr. Hancock’s activities based on Peabody’s frequent, personal interactions with Mr. Hancock. Further‐ more, Mr. Hancock’s criminal activities were corroborated by the text messages from Davis’s phone, Lowrie’s report of as‐ sault to the police, and Mr. Hancock’s own prior statements to Investigator Drost, in which he referenced his gang affilia‐ tion and admitted to a long line of arrests. We therefore con‐ clude, as we did in Mullins, that this other evidence of relia‐ bility distinguishes the present situation from Glover. See Mul‐ lins, 803 F.3d at 864 (holding that Glover was “readily distin‐ guishable” because “the search warrant in Glover was issued based almost entirely on the informant’s report,” but “[h]ere, by contrast, … the critical information was corroborated by the officers’ firsthand observations”). We also note that, in the case before us, there are not the same type of concerns with Peabody’s credibility as there were with the informant in Glover. Specifically, there is no ev‐ idence that Peabody was involved in a different—and per‐ haps rival—gang, that he had attempted to deceive the police, or that he was expecting remuneration for his cooperation.

18 See R.17‐1 at 4–5 (identifying Peabody as “a known credible confidential

informant,” who, “over the course of the last fifteen years, has provided the St. Croix County Sheriff’s Office with information on several burgla‐ ries leading to felony arrests and convictions,” and who had “made a min‐ imum of 3 controlled drug buys for the St. Croix County Sheriff’s Office and the West Central Drug Task Force, leading to at least one felony arrest and conviction”).

No. 15‐1956  15

Here, the magistrate judge comprehensively reviewed the totality of the circumstances and concluded that a Franks hear‐ ing was not warranted. We therefore affirm the district court’s denial of Mr. Hancock’s request for a Franks hearing.

B. Mr. Hancock renews his claim that his Colorado convic‐ tions cannot be considered predicate offenses for purposes of § 922(g)(1) because he received an “unconditional” discharge 19 for those convictions. Section 922(g) of Title 18 of the United States Code provides that “[i]t shall be unlawful for any per‐ son—(1) who has been convicted in any court of, a crime pun‐ ishable by imprisonment for a term exceeding one year[,] … to … possess in or affecting commerce, any firearm or ammu‐ nition … .” Excluded from the definition of “crime punishable by imprisonment for a term exceeding one year,” however, is “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored … unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U.S.C. § 921(a)(20). We have described this second provision as “an anti‐ mousetrapping rule, designed to ensure that persons who have been told that all civil rights have been restored are not taken by surprise when the statute books contain reservations (such as a ban on possessing firearms) omitted from the com‐ munication.” United States v. Burnett, 641 F.3d 894, 895 (7th Cir. 2011).

19 Appellant’s Br. 10. 16  No. 15‐1956

Consequently, if a state advises a convicted felon that his “’big three’ civil rights” have been restored—“the rights to vote, to hold office, and to serve on juries”—then it also must provide “express” notice that he may not possess firearms. Buchmeier v. United States, 581 F.3d 561, 564, 565 (7th Cir. 2009) (en banc). It is not sufficient notice that “the state’s statutes at large” contains such a prohibition. Id. at 565. Rather, “[t]he statute asks only what a document contains. If the document says that civil rights have been restored but omits a firearms qualification, then the conviction no longer counts as a violent felony … . Section 921(a)(20) directs us to the four corners of the document, and there we stop.” Burnett, 641 F.3d at 896. Here the discharge document issued by the Colorado De‐ partment of Corrections is silent as to the restoration of any rights. The “Statutory Discharge” states: “The above named inmate is to be unconditionally discharged from the custody 20 of the Department of Corrections pursuant to 18‐1.3‐401.” Because the document does not mention the restoration of rights, and because our analysis begins and ends with the four corners of the document, Mr. Hancock’s Colorado felonies are not excluded from consideration by § 921(a)(20). Mr. Hancock maintains, however, that our analysis should not end there. He notes that the discharge document refer‐ ences section 18‐1.3‐401 of the Colorado Revised Statutes, which states in relevant part: (3) Every person convicted of a felony, whether defined as such within or outside this code, shall be disqualified from holding any office of

20 R.62‐1. No. 15‐1956  17

honor, trust, or profit under the laws of this state or from practicing as an attorney in any of the courts of this state during the actual time of confinement or commitment to imprisonment or release from actual confinement on condi‐ tions of probation. Upon his or her discharge af‐ ter completion of service of his or her sentence or after service under probation, the right to hold any office of honor, trust, or profit shall be restored, except as provided in section 4 of arti‐ cle XII of the state constitution. Colo. Rev. Stat. Ann. § 18‐1.3‐401 (West 2016). Mr. Hancock further contends that, because his prior convictions are not 21 listed in Article XII, Section 4 of the Colorado Constitution, his right to hold office has been restored. Moreover, he con‐ tinues, a different article of the Colorado Constitution auto‐ matically restores his right to vote after completion of his sen‐ 22 tence. Finally, the Colorado Constitution specifically guar‐ antees the right to bear arms to all persons: “The right of no person to keep and bear arms in defense of his home, person

21 See Colo. Const. art. XII, § 4 (“No person hereafter convicted of embez‐

zlement of public moneys, bribery, perjury, solicitation of bribery, or sub‐ ornation of perjury, shall be eligible to the general assembly, or capable of holding any office of trust or profit in this state.”). 22 See Colo. Const. art. VII, § 10 (“No person while confined in any public

prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by vir‐ tue of a pardon, or by virtue of having served out his full term of impris‐ onment, shall without further action, be invested with all the rights of cit‐ izenship, except as otherwise provided in this constitution.”).

18  No. 15‐1956

and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.” Colo. Const. art. II, § 13. Mr. Hancock therefore submits that, because the discharge references the statute, which in turn references the Colorado Constitution, 23 he was sent on an “Easter egg hunt” for his rights, which eventually misled him to conclude that an unconditional right to possess firearms had been restored to him. We cannot accept this argument. The requirement that a state provide “express” notice of a continuing firearm prohi‐ bition only applies “[w]hen the state gives the person a formal notice of the restoration of civil rights.” United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994). As we already have ob‐ served, the notice Mr. Hancock received does not speak to the restoration of rights. The notice, therefore, stands in contrast to the notice sent in Buchmeier that specifically informed the recipient of “restoration of your right to vote and to hold of‐ fices created under the constitution of the state of Illinois.” 581 F.3d at 564. The rule of Buchmeier is confined to situations in which the state provides a notice of the restoration of civil rights to a former inmate. Absent such a notice, the proviso to 18 U.S.C. § 921(a)(20) requiring that the “restoration … expressly pro‐ vide[] that the person may not … possess … firearms” simply does not apply. The district court, therefore, did not err in con‐ sidering his Colorado convictions as predicate offenses for purposes of § 922(g)(1).

23 Appellant’s Br. 13. No. 15‐1956  19

Conclusion For the reasons set forth in this opinion, the judgment of the district court is affirmed. AFFIRMED