United States of America v. James Humphreys

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3172
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J AMES H UMPHREYS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 480—John W. Darrah, Judge.
____________
A RGUED S EPTEMBER 12, 2006—D ECIDED N OVEMBER 21, 2006
____________
Before C OFFEY , R OVNER , and E VANS , Circuit Judges.
C OFFEY , Circuit Judge. James Humphreys was convicted
after a jury trial of possession of a firearm by a felon. See 18
U.S.C. § 922(g)(1). The district court found that he had
three prior felony convictions for violent crimes and sen-
tenced him to fifteen and one half years’ imprisonment
under the Armed Career Criminal Act (“ACCA”). See 18
U.S.C. § 924(e)(1). On appeal Humphreys challenges his
conviction and sentence on three grounds and alleges that:
(1) the evidence at trial was insufficient to establish that
the firearm he possessed had traveled in interstate com-
merce; (2) the indictment failed to adequately allege a
nexus with interstate commerce; and (3) the district court
relied on inadequate evidence in ruling that one of his prior

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2 No. 05-3172
convictions was a “violent felony” for purposes of the ACCA.
We affirm.
I. Background
On December 9, 2002, Humphreys—who was a truck
driver for the Shawn Trimble Trucking Company located in
Chicago, Illinois—was dispatched by Shawn Trimble for a
pick-up and delivery, but he failed to pick up his assigned
load and never made any delivery. Trimble was unable to
reach him by telephone the next day, and thus he reported
that his truck had been stolen to the Chicago Police Depart-
ment. When Trimble finally reached Humphreys by tele-
phone on December 11th, Humphreys claimed the truck
was hijacked, and he was forced to witness a murder.
Humphreys added that the hijackers made him handle the
gun used in the murder so it would have his fingerprints on
it, and then left the gun with him.
Trimble asked Humphreys to return the truck, and he
agreed to do so. But Trimble instructed another employee
to call the police as soon as Humphreys arrived. When he
arrived, Trimble asked to see the gun, and Humphreys took
it out of a duffle bag and showed it to him. At this time,
Trimble suggested to Humphreys that he place the gun
back in his duffel bag. A few minutes later, two police
officers arrived and took Humphreys into custody. The
officers conducted a custodial search of Humphreys’s duffel
bag and found the gun.
The parties stipulated that Humphreys was previously
convicted of a felony. At trial the government called Trimble
and the two police officers to testify that Humphreys
possessed the gun. The government also presented Michael
Casey, a special agent with the Bureau of Alcohol, Tobacco,
Firearms and Explosives, as an expert witness to testify to
the existence of a commerce nexus. To support his qualifica-
tion as an expert, Casey testified that he was trained in

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No. 05-3172 3
firearms identification and had identified between 1,500
and 2,000 firearms in his 25 years as a law enforcement
officer. Humphreys failed to object when the district court
qualified Casey as an expert witness.
Casey testified that the gun found in Humphreys’s bag
was manufactured by the High Standard Manufacturing
Corporation in Hamden, Connecticut, and thus, in his
opinion, had traveled in interstate commerce. When the
government asked Casey for the basis of his opinion, he
explained that he could identify the gun’s manufacturer
“based on its stampings.” The barrel of the gun was
stamped with the words “High Standard Mfg. Corp.
Hamden, Conn. USA.” Casey also said he conducted
research to “verify” that High Standard did manufacture
firearms of that type but had never done so in the state
of Illinois. On cross-examination, Casey acknowledged
that he never attempted to trace the serial number of the
gun, but he was not asked why and did not volunteer an
explanation. The jury returned a verdict of guilty.
In preparing the presentence report, the probation offi-
cer determined that Humphreys was subject to an enhanced
sentence under the ACCA, based on his prior convictions for
bank robbery, armed robbery, and aggravated battery.
Humphreys responded with a written sentencing memoran-
dum in which he conceded that the two robbery convictions
do count as violent felonies, see 18 U.S.C. § 924(e)(2)(B), but
argued that the third predicate conviction—for aggravated
battery on a public way, see 720 ILCS 5/12-4(b)(8)—did not
qualify because the Illinois statute could be satisfied in a
way that did not require the use of force. The district court
concluded after reviewing the charging information and
transcripts from the state-court proceedings that the
commission of the aggravated battery involved “striking the
victim,” which qualifies as a “use . . . of physical force
against the person of another” and falls within the parame-
ters of the first prong of the ACCA’s definition of “violent

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4 No. 05-3172
felony.” See 18 U.S.C. § 924(e)(2)(B)(I). The court applied a
base offense level of 33, see U.S.S.G. § 4B1.4(b)(3)(B),
against a criminal history category of IV, see id.
§ 4B1.4(c)(3), and arrived at a Sentencing Guidelines
imprisonment range of 188 to 235 months. In selecting a
sentence in that range, the court identified two factors that
somewhat mitigated Humphreys’s “significant criminal
history:” his most recent conviction, the aggravated battery,
occurred more than three years before his current offense,
and he committed the aggravated battery “at least in part”
because he believed he was “defending someone else.” The
court decided that a sentence at the “lowest end of the
guidelines would be appropriate to meet the ends of the
statute,” and sentenced Humphreys to 188 months’ impris-
onment and five years’ supervised release.
II. Analysis
A. Sufficiency of the Evidence
Humphreys argues that the government failed to meet its
burden on the commerce element of § 922(g) because, in his
view, the evidence established only that the barrel of the
gun had traveled in interstate commerce. He argues that
the barrel cannot alone satisfy the statutory requirement,
and that because barrels are interchangeable, nothing
about the origin of the rest of the gun may fairly be in-
ferred.
We refuse to accept Humphreys’s very speculative and
self-serving interpretation of the evidence. The expert
testified that the gun—and not just the barrel—traveled
in interstate commerce. The expert stated that the weap-
on was manufactured in Hamden, Connecticut by a com-
pany that had never manufactured any weapon in the state
of Illinois. He also stated that the gun was not a counterfeit
weapon. Thus, there was no need for the jury to rely on any
assumption in concluding that the gun had traveled in

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No. 05-3172 5
interstate commerce, since “[t]he requisite interstate
commerce nexus can be established . . . merely by evidence
that the gun was manufactured outside the state in which
it was possessed.” United States v. Coleman, 22 F.3d 126,
130-31 (7th Cir. 1994); see also United States v. Van Sach,
458 F.3d 694, 703 (7th Cir. 2006) (required commerce nexus
existed where gun was manufactured in Montana and
possessed in Illinois); United States v. Williams, 403 F.3d
1188, 1195 (10th Cir. 2005) (testimony that a gun manufac-
tured in California and possessed in Kansas was sufficient
to establish commerce nexus); United States v. Scott, 263
F.3d 1270, 1274 (11th Cir. 2001) (per curiam) (same where
gun was manufactured in California and possessed in
Georgia); United States v. Bradley, 145 F.3d 889, 893 (7th
Cir. 1998) (likewise where a gun expert testified that gun
was manufactured outside of the state where it was pos-
sessed).
Essentially, Humphreys argues that there is insuf-
ficient evidence to support his conviction because he
speculates that the jury could not rule out that part of the
gun may have been manufactured in Illinois. But in
reviewing the sufficiency of the evidence presented at
trial, we view the evidence “in the light most favorable to
the government,” and ask whether “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Maholias, 985 F.2d
869, 874 (7th Cir. 1993). “[A]lternative explanations alone,
even if plausible, do not ordinarily overcome the defendant’s
burden in challenging the sufficiency of the evidence.”
United States v. Romero, 57 F.3d 565, 570 (7th Cir. 1995).
This is because “the law does not require the government to
disprove every conceivable hypothesis of innocence in order
to sustain a conviction on an indictment proved beyond a
reasonable doubt.” United States v. Townsend, 924 F.2d
1385, 1389 (7th Cir. 1991) (emphasis in original).
Humphreys had ample opportunity via the means of an

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6 No. 05-3172
exhaustive cross-examination to test his hypothesis that the
entire gun did not travel in interstate commerce, and we
refuse to allow Humphreys to prevail on appeal on the basis
of an impeachment theory he failed to test in the trial court.
Humphreys also proposes that the government’s failure
to trace the serial number undermined the evidence that
the weapon was manufactured in Connecticut. But as the
authority he cites indicates, see 2 Wigmore on Evidence
§ 285 (Chadbourn rev. 1979); see also United States
v. Tucker, 552 F.2d 202, 210 (7th Cir. 1977), the
nonproduction of evidence that normally would have
been produced merely permits an inference that such
evidence would be unfavorable to the producing party,
but that inference is not compelled. Humphreys com-
plains that the expert never explained why he failed to
trace the serial number, but the expert was never asked
why, by either the prosecution or defense counsel. Nor is it
the obligation of the judge who is presumed to be impartial
and must conduct himself or herself in that manner.
Humphreys points to no case in which a court has over-
turned a conviction under § 922(g) simply because
the government failed to have the serial number traced, and
we could find none. The only relevant case we found, in fact,
rejected a suggestion that an expert’s testimony is deficient
if he does not “rely on the markings on the firearm,”
including the serial number. See United States v. Corey, 207
F.3d 84, 90-91 (1st Cir. 2000).
B. Inadequacy of the Indictment
Humphreys next claims that the indictment was inade-
quate with respect to the commerce element. But since its
allegation that “the firearm had traveled in interstate
commerce prior to the defendant’s possession of the firearm”
is at the heart of the issue raised and nothing else
is required, see United States v. Hubbard, 61 F.3d 1261,
1269 (7th Cir. 1995); United States v. McCarty, 862 F.2d

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No. 05-3172 7
143, 145-46 (7th Cir. 1988), we conclude, and Humphreys
acknowledges, that he is really challenging the constitution-
ality of § 922(g)(1) as applied to him.
In Humphreys’s view, “recent Supreme Court precedent”
demands that § 922(g) be interpreted to require a “substan-
tial effect” on commerce rather than the “minimal” nexus
we have considered constitutionally sufficient. That argu-
ment, however, is one that we have repeatedly rejected. See
Van Sach, 458 F.3d at 703; United States v. Williams, 410
F.3d 397, 400 (7th Cir. 2005), cert. denied, 126 S.Ct. 1182
(2006); United States v. Peterson, 236 F.3d 848, 852 (7th
Cir. 2001). Because § 922(g)(1) “requires proof that the
defendant possessed a firearm ‘in or affecting commerce,’
[it] represents a valid exercise of congressional authority
under the Commerce Clause.” Williams, 410 F.3d at 400.
C. Violent Felony under the ACCA
Humphreys also contends that even if his conviction
can be sustained, his sentence must be vacated because the
district court erred in finding that his aggravated battery
conviction is a violent felony for purposes of the ACCA. He
contends that under the Illinois statute aggravated battery
may be nonviolent, and that the only “legitimate” items of
evidence for proving that his particular conviction involved
violence are inadequate under Shepard v. United States,
544 U.S. 13, 16 (2005). Shepard holds that a court should
look to the statutory elements, charging documents, and
judicial findings of fact to determine whether a previous
conviction was for a violent felony. Id. at 16. In this case,
Humphreys argues that the charging information and the
state judge’s findings of fact are too “ambiguous” to support
the district court’s finding that his conviction for aggravated
battery involved violence.
Whether an aggravated battery under the Illinois statute
may in some cases be nonviolent—and that contention

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8 No. 05-3172
is under some doubt given statements in our previous
decisions, see United States v. Thigpen, 456 F.3d 766, 770
(7th Cir. 2006) (“[U]nder Illinois law, aggravated battery
involves the use or threatened use of force against an-
other person and . . . also meets the requirements for a
crime of violence.”); United States v. Wallace, 326 F.3d 881,
886 (7th Cir. 2003) (“On appeal, Wallace concedes that
aggravated battery and second-degree murder qualify as
violent felonies . . . .”); United States v. Morales, 902 F.2d
604, 605 (7th Cir. 1990) (noting that defendant “had four
previous convictions—one for rape, one for attempted
rape, and two for aggravated battery, and these are all
violent felonies”)—we find that in this case, it was violent.
The charging information states that “James Humphries
[sic] and Diane Battle struck Warren Cook in the head with
a gun, while they were on or about a public way.” This
adequately demonstrates that the conviction involved the
use of force, and therefore satisfies the ACCA’s first alter-
native definition of “violent felony.” See 18 U.S.C.
§ 924(e)(2)(B)(I).
Humphreys argues that he was not the sole defendant
and that it cannot be determined whether he personally
engaged in any violent conduct under the charging informa-
tion alone. But Humphreys and his co-defendant were both
charged with striking Cook with a gun, and under Illinois
law, Humphreys could have been convicted of the offense as
a principal or as an aider or abettor to his co-defendant. 720
Ill. Comp. Stat. § 5/5-2(c); see also Brumley v. DeTella, 83
F.3d 856, 862-63 (7th Cir. 1996). When considering the
totality of the evidence produced at trial and the charging
information, we are convinced that the judge concluded that
Humphreys played one role or the other when he convicted
Humphreys of aggravated battery, and this court has held
that a conviction for aiding and abetting in the crime may
constitute a violent felony under the ACCA. See United
States v. Groce, 999 F.2d 1189, 1191-92 (7th Cir. 1993). We

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No. 05-3172 9
have no doubt that it was proper pursuant to the statute for
the sentencing judge to construe Humphreys’s conviction for
aggravated battery under Illinois law as a violent felony
under the ACCA.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-06

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