United States v. Binion

55 F. App'x 369
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 27, 2002
DocketNo. 02-1678
StatusPublished
Cited by1 cases

This text of 55 F. App'x 369 (United States v. Binion) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Binion, 55 F. App'x 369 (7th Cir. 2002).

Opinion

ORDER

Kitrus Binion was convicted by a jury of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(e). A month later, he pleaded guilty to an unrelated bank robbery charge, 18 U.S.C. § 2113(a). The district court sentenced Binion to 293-months’ imprisonment on the felon-in-possession charge and 210-months’ imprisonment on the bank robbery charge to run concurrent. Binion filed a timely notice of appeal from his felon-in-possession sentence, but did not appeal from the separate bank robbery sentence. His counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he considers the appeal frivolous. Binion was notified of the Anders motion, see Circuit Rule 51(a), and filed a response asserting an issue not raised by counsel. Because the Anders brief is adequate on its face, we limit our review to those issues identified in the brief and the response. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). Binion did not raise these issues in the district court, so our review is only for plain error. See Fed.R.Crim.P. 52(b). We grant counsel’s motion to withdraw and dismiss the appeal.

Counsel first considers whether Binion could challenge the constitutionality of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). Binion argues that § 922(g)(1) is unconstitutional because the Commerce Clause does not authorize Congress to reach the purely intrastate possession of a firearm by a convicted felon. But as counsel correctly notes, we have repeatedly rejected Commerce Clause challenges to the felon-in-possession statute. See, e.g., United States v. Fleischli, 305 F.3d 643, 652-53 (7th Cir.2002); United States v. Lemons, 302 F.3d 769, 772-73 (7th Cir. 2002); United States v. Mitchell, 299 F.3d 632, 635 (7th Cir.2002). Similarly, an argument that Binion’s sentence under § 924(e) is cruel and unusual punishment also fails. See United States v. Hayes, 919 F.2d 1262, 1265-66 (7th Cir.1990) (reject[371]*371ing Eighth Amendment challenge to § 924(e)). We agree with counsel that an appeal on these issues would be frivolous.

Counsel next considers whether a non-frivolous argument could be raised regarding an identification of Binion by witness John Webb. A district court should suppress an out-of-court identification when it is unduly suggestive and not reliable under the totality of the circumstances. United States v. Traeger, 289 F.3d 461, 474 (7th Cir.2002). We look at five factors when evaluating reliability: “(1) the witness’ opportunity to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty that the witness demonstrated at the time of the confrontation, and (5) the time elapsed between the crime and the confrontation.” Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). Webb, a store manager, confronted Binion and his companion, Sheila Merriweather, and accused them of shoplifting. As Binion and Merriweather left the store, Webb saw a flash of silver in Binion’s hand. Webb followed them outside the store, and Binion pointed a gun directly at Webb. After Webb returned to the store, Binion aimed the gun at Webb through the store’s windows. Webb provided the police with a detailed description. Twenty minutes later, the police brought Binion to the store for identification. Webb was certain that Binion was the man who pointed a gun at him. Viewed under the totality of the circumstances, we agree with counsel that a challenge to Webb’s identification would be frivolous.

Counsel also suggests that Binion could challenge the sufficiency of the evidence supporting his conviction. To succeed on a sufficiency of the evidence challenge, Binion must prove that, viewing the evidence in the light most favorable to the prosecution, a rational jury could not have found the elements of § 922(g) and § 924 beyond a reasonable doubt. Fleischli 305 F.3d at 657. Here, Binion’s companion Merriweather and Webb testified that they saw Binion holding a gun during the confrontation. Police Officer Ronald Santa testified that he saw Binion running away from the store with a gun in his hand. Viewing the evidence in a fight most favorable to the government, we believe that an argument that the evidence was insufficient would be frivolous.

Counsel also says that, in closing argument, the prosecutor “vouched” for two witnesses’ credibility and that Binion could argue that the statements deprived him of his due process rights. The prosecutor stated that Webb “didn’t stretch his testimony to tell you something he didn’t know” and that “as [Merriweather] told you, she intends to tell the truth. I suggest that’s what she did.” (Counsel’s Brief at 17, quoting Trial Transcript at 184,186.) We will first decide whether the comments in isolation were improper. United States v. Anderson, 303 F.3d 847, 854 (7th Cir. 2002). If the comments were improper, we will consider the whole record to determine whether the defendant was deprived of a fair trial. Id. In particular, we consider five factors: “1.) the nature and seriousness of the misconduct; 2.) the extent to which the comments were invited by the defense; 3.) the extent to which any prejudice was ameliorated by the court’s instruction to the jury; 4.) the defense’s opportunity to counter any prejudice; and 5.) the weight of the evidence supporting the conviction.” Id. (internal quotations omitted). Additionally, under the plain error standard, we must consider whether the outcome of the trial would have been different but for the prosecutor’s statements. Id. [372]*372In isolation, the prosecutor’s comments were improper. See United States v. Cornett, 232 F.3d 570, 575-76 (7th Cir.2000) (stating that a prosecutor improperly vouches for a witness’s credibility when she expresses her personal opinion about the witness’s truthfulness). Considering all of the allegedly improper statements in the context of the whole record, however, there is no reason to believe the outcome of the trial would have been different absent the statements.

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Bluebook (online)
55 F. App'x 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-binion-ca7-2002.