In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2709
WALTER D. HILL,
Plaintiff-Appellant,
v.
JOSEPH R. MURPHY, Special Agent, individually, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 11 C 172 — Michael J. Reagan, Chief Judge.
____________________
SUBMITTED MARCH 12, 2015 — DECIDED MAY 4, 2015
____________________
Before POSNER, EASTERBROOK, and TINDER, Circuit Judges.
POSNER, Circuit Judge. In Heck v. Humphrey, 512 U.S. 477,
487 (1994), the Supreme Court held (so far as relates to this
case) that a person who has been convicted of a crime cannot
seek damages or other relief under federal law (as in a suit
under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)) for
violation of his rights by officers who participated in the in-
vestigation or prosecution of the criminal charge, if “a judg-
2 No. 13-2709
ment in favor of the plaintiff [in the civil suit] would neces-
sarily imply the invalidity of his conviction or sentence.” The
district judge held that a judgment in Hill’s favor would,
and so dismissed Hill’s suit (a Bivens action), precipitating
this appeal.
Hill had pleaded guilty in the criminal case to attempted
extortion, in violation of 18 U.S.C. § 1951, and to making a
false statement to federal investigators concerning his extor-
tionate activities, in violation of 18 U.S.C. § 1001(a)(2). (He
was the Deputy Liquor Commissioner of East St. Louis, Illi-
nois, and was alleged to have extorted bribes from liquor li-
censees.) He was sentenced to 60 months in prison. We af-
firmed the judgment in United States v. Hill, 645 F.3d 900 (7th
Cir. 2011).
The two defendants in this civil suit, an FBI agent and an
IRS agent, had interviewed the plaintiff at his home before
he was indicted and had gotten him to make damaging ad-
missions. In this civil suit for damages he claims that the de-
fendants forced their way into his house with drawn weap-
ons, searched the house, seized and kept his lawfully owned
handgun, and twirled a loaded gun in “John Wayne” fash-
ion, making Hill “so scared” that he was “in tears.” He felt
“like a hopeless prisoner” in his own home when he tried to
answer his phone and was “placed at gunpoi[n]t.” While be-
ing questioned he felt disoriented, was crying from the pain
in his head, and blacked out, but the agents did not call for
medical assistance—he later learned that he had suffered a
stroke. He was “under the gun, literally,” he says, and “felt
pressured and under duress” to answer the defendants’
questions. We accept these allegations as true for purposes
of this appeal.
No. 13-2709 3
He argues that by detaining him against his will, search-
ing his home, and seizing his gun, all without his consent,
plus using excessive force, ignoring his medical needs, and
coercing him to answer their questions, the defendants vio-
lated his Fourth Amendment right to be free from an unrea-
sonable search and seizure and his Fifth Amendment right
to due process of law.
His specific Fourth Amendment claims are illegal entry,
unlawful detention, unlawful seizure of a gun of which he
was the lawful owner, deliberate indifference to his medical
needs, and use of excessive force. These claims were proper-
ly brought under the Fourth Amendment because the inju-
ries complained of were inflicted before there had been a ju-
dicial determination of probable cause. Currie v. Chhabra, 728
F.3d 626, 629--30 (7th Cir. 2013); Lopez v. City of Chicago, 464
F.3d 711, 719 (7th Cir. 2006).
His Fifth Amendment claim concerns three statements
that he made to the officers—statements that he alleges were
extracted from him by the tactics of intimidation described
above. The statements are his denial to the officers that he
had sent a bagman to collect bribes for him (this lie was the
basis of the false-statement charge against him); his admis-
sion minutes later that the denial was indeed a lie; and his
acknowledging that the mayor, who doubled as the Liquor
Commissioner of East St. Louis (the plaintiff was as we not-
ed the Deputy Liquor Commissioner), had failed to exercise
proper supervision over him, a failure that facilitated his
bribe taking.
The Fourth Amendment claims that we have listed are
not barred by the principle of Heck v. Humphrey (such claims
rarely are, see Wallace v. City of Chicago, 440 F.3d 421, 426–28
4 No. 13-2709
(7th Cir. 2006), affirmed under the name Wallace v. Kato, 549
U.S. 384 (2007); VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir.
2006); Covey v. Assessor of Ohio County, 777 F.3d 186, 197 (4th
Cir. 2015); Hooper v. County of San Diego, 629 F.3d 1127, 1133–
34 (9th Cir. 2011); Hughes v. Lott, 350 F.3d 1157, 1160–61 (11th
Cir. 2003)). If the police roughed up Hill, seized his gun
without justification, waved a loaded gun in his face, and so
on, these outrages, constituting violations of his Fourth
Amendment right not to be subjected to an unreasonable
search and seizure, would entitle him to damages for physi-
cal and psychological injury resulting from the search and
seizure and for the expropriation of his gun. That would be
true even if he‘d never been prosecuted. But such violations
of his rights would not exonerate him from the false state-
ment and attempted-extortion charges that were the only
grounds of his convictions.
One of Hill’s due process claims, in contrast, challenges
his false-statement conviction head on. That is the claim that
he was coerced to answer the officers’ question whether he
used a bagman. Coerced to speak, he lied, and the lie was
the basis of his conviction for making a false statement to the
officers. The point was not that he was coerced to lie; doubt-
less the officers would have preferred a truthful answer,
which would have nailed down his guilt of extortion but left
no room for his also being convicted of making a false
statement to the government. But had he not been coerced to
speak, and as a result had remained silent, or (perhaps in re-
sponse to noncoercive questioning, told the truth), he could
not have been convicted of making a false statement. There-
fore proof in this civil case that the conviction was based on
a violation of his constitutional rights would be inconsistent
with the conviction and so is barred by Heck.
No. 13-2709 5
This sounds not like a due process claim, but rather like a
self-incrimination claim. Hill was forced to speak, and in
speaking he incriminated himself by making a false state-
ment. He doesn’t mention self-incrimination, but since we
are vacating much of the judgment and remanding, he may
on remand decide to add a self-incrimination claim and the
judge might let him do so. Furthermore, as we’ll note at the
end of this opinion, he might argue that his false statement
was the product of the excessive-force violation of the
Fourth Amendment that he alleges. In an effort to stave off a
further appeal, we shall consider whether such an addition
to the plaintiff’s suit would be barred by Heck v. Humphrey.
A Fourth Amendment claim based on violence or threats
used to extract the statement (conduct that violates the
Fourth Amendment “right of the people to be secure in their
persons … against unreasonable searches and seizures”)—a
claim unrelated to the truth or falsity of the statement—is
very different from a Fifth Amendment self-incrimination
claim based on the use of the statement to convict him of
making a false statement. The first claim, a Fourth Amend-
ment excessive-force claim that the plaintiff could press in
this civil case even if his lie about the bagman had not been
used in the criminal case, is unproblematic; a self-
incrimination claim, in contrast, would be deeply problemat-
ic, as we’re about to see.
But the fact that Hill admitted the lie—the admission be-
ing his second statement—along with the further fact that he
admitted that the mayor hadn’t supervised him effectively
(the third statement), were not grounds for the false-
statement charge: neither telling the truth nor committing
extortion is making a false statement. The lie was the false-
6 No. 13-2709
statement crime of which he was convicted; the admission
was merely evidence of the lie, and as explained in Heck “a
suit for damages attributable to an allegedly unreasonable
search may [be maintained] even if the challenged search
produced evidence that was introduced in a state criminal
trial that resulted in the plaintiff’s still-outstanding convic-
tion. Because of doctrines like independent source and inevi-
table discovery, and especially harmless error, such a § 1983
action, even if successful, would not necessarily imply that
the plaintiff’s conviction was unlawful.” Heck v. Humphrey,
supra, 512 U.S. at 487 n. 7 (emphasis in original and citations
omitted); see also Apampa v. Layng, 157 F.3d 1103, 1105 (7th
Cir. 1998).
These observations are pertinent because we know from
the presentence report that the government had ample evi-
dence, even without Hill’s confession, to prove that he had
lied—it had video and audio surveillance of his bagman col-
lecting payments on his behalf. The use against Hill of his
admission of having lied (the use consisting of including the
statement in the stipulation of facts as a factual basis for the
plea—had Hill’s statements never been “used” against him
he wouldn’t have a Fifth Amendment claim, Chavez v. Mar-
tinez, 538 U.S. 760, 767 (2003)) was thus a harmless error.
The same is true of Hill’s statement about the absence of
mayoral oversight, which earned him an increase in his sen-
tence for being a “public official in a high-level decision-
making or sensitive position.” U.S.S.G. § 2C1.1(b)(3). The ab-
sence of oversight amounted to a de facto delegation of
mayoral authority to him; his statement that “the [m]ayor
does not really know what he is doing in reference to liquor
licenses” revealed that Hill occupied a high-level decision-
No. 13-2709 7
making position. Other evidence pointed in the same direc-
tion. Hill and the mayor had been friends since college; Hill
stood in for the mayor at public events; and the mayor had
created the position of Deputy Liquor Commission just for
Hill. United States v. Hill, supra, 645 F.3d at 907. The presen-
tence report, moreover, reveals that local business owners
provided statements to the government about the extent of
Hill’s authority. One of the statements was that the mayor
had “referred [the business owner in question] to Hill,
whom [the mayor] identified as the individual who could
renew [the business owner’s] liquor license.”
So even if the second and third statements were coerced,
Hill’s false-statement and attempted-extortion convictions
and sentences would not be undermined. In contrast, his re-
sponse to the question whether he had sent a bagman to col-
lect bribes from liquor licensees was not only a ground but
the ground of his conviction for making a false statement. As
we noted earlier, had he remained silent—made no state-
ment—he could not have been convicted of making a false
statement. That makes this case like Okoro v. Callaghan, 324
F.3d 488, 490 (7th Cir. 2003), in which, as we explained in
McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006), “specific
factual allegations in the complaint [in this case, that Hill
was forced to speak, and in speaking lied] are necessarily
inconsistent with the validity of the conviction.”
Now one might be inclined to think that a lie is a lie; if
the officers had asked Hill politely whether he used a bag-
man, he would have lied and been convicted; how then
could the use of force have affected the outcome of his crim-
inal trial? But we can have no idea what he would have said
had they asked him politely. He might have told the truth,
8 No. 13-2709
but instead he might have lied in terror—he might have
feared that if he admitted using a bagman, the officers, con-
vinced now of his guilt, would really have beaten him up.
Had they asked him politely he might have ‘fessed up to his
use of a bagman, as indeed he did shortly afterward.
We can make this point a little clearer by reference to the
venerable distinction between “actus reus” and “mens rea.”
The former is the guilty act, the latter the guilty mind that
decided to do the guilty act. An act, Holmes explained, “is
always a voluntary muscular contraction, and nothing else.”
O. W. Holmes, Jr., The Common Law 91 (1881). In this case the
voluntary muscular contraction was Hill’s mouthing a deni-
al that he used a bagman. But was there a guilty mind? If
terror caused him to lie, the lie was not willful, which would
distinguish this case from such cases as Bryson v. United
States, 396 U.S. 64, 69--70 (1969), where we read that “the ju-
ry’s verdict reflects a determination that petitioner’s false
statement was knowingly and willfully made. This negates
any claim that petitioner did not know the falsity of his
statement at the time it was made, or that it was the product
of an accident, honest inadvertence, or duress”; see also
United States v. Knox, 396 U.S. 77, 83--84 (1969); Kay v. United
States, 303 U.S. 1 (1938); United States v. Kapp, 302 U.S. 214
(1937). If the lie was intentional rather than a mere terror re-
flex, there would be a guilty mind but a defense of duress,
see Dixon v. United States, 548 U.S. 1, 6–7 (2006), so the con-
sequence—a challenge in the civil proceeding to the correct-
ness of his conviction of making a false statement—would be
the same. If the agents were torturing him to speak and Hill
thought they’d brutalize him further if he implicated him-
self, lying would have been his only recourse to avoid fur-
ther brutalization.
No. 13-2709 9
Against concluding that basing a civil suit on coercion to
speak is barred by Heck it can be argued that Hill’s guilty
plea was the entire basis for the false-statement conviction,
as in Lockett v. Ericson, 656 F.3d 892, 896–97 (9th Cir. 2011),
that the plea was voluntary even if the lie may not have
been, that the civil suit does not challenge the plea, and that
anyway a conviction based on a guilty plea can rarely be col-
laterally attacked. United States v. Broce, 488 U.S. 563, 574
(1989); Connors v. Graves, 538 F.3d 373, 378 (5th Cir. 2008).
Although rarely is not never—see United States v. Broce, su-
pra, 488 U.S. at 574–76, citing Menna v. New York, 423 U.S. 61
(1975), and Blackledge v. Perry, 417 U.S. 21 (1974)—the excep-
tions authorized by those cases are not applicable to this
case.
But the Supreme Court in Heck was concerned not only
with limiting collateral attacks on criminal judgments, but
also with the unseemliness of conflicting judicial outcomes,
see 512 U.S. at 484–85, as when “a judgment in favor of the
plaintiff [in his civil suit] would necessarily imply the inva-
lidity of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated. But
if the district court determines that the plaintiff’s action,
even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the ac-
tion should be allowed to proceed.” Id. at 487 (emphasis in
original).
“Imply” is not synonymous with “invalidate.” A judg-
ment in favor of Hill’s claim in this civil suit that his convic-
tion of making a false statement was unconstitutional be-
cause it rested on police coercion would not invalidate the
10 No. 13-2709
conviction, or provide a ground for a suit for postconviction
relief (release from prison), but it would cast a shadow over
the conviction. It would allow Hill to argue that he had been
determined by a court to have been unjustly convicted and
sentenced but was forbidden to obtain relief on the basis of
that finding. It would thus enable him to indict the legal cul-
ture. This Heck forbids. As we put it in Dominguez v. Hendley,
545 F.3d 585, 588 (7th Cir. 2008), “a § 1983 claim for a due
process violation based on the denial of a fair criminal trial
may be brought only after the conviction is set aside. Other-
wise, that civil claim would imply the invalidity of the out-
standing conviction and would thus constitute a collateral
attack on the conviction through an impermissible route.” It
would not be a collateral attack in the literal sense, because a
judgment in favor of the plaintiff would not invalidate his
conviction. But the implication of invalidity would be
enough to establish the impropriety of the civil suit. Hill
thus can’t be permitted in his civil suit to prove that his first
statement was coerced, though he can complain about the
beating or threats or other brutalities that induced the three
statements to the extent the brutalities inflicted injuries
(whether physical or mental) for which tort damages can be
awarded.
All that matters, in short, is that Hill be forbidden to as-
sert on remand that the statement on which his conviction of
making a false statement to the government was predicated
was coerced, for if it was coerced then an element of his con-
viction would be negated. See id. at 589. (There are even
hints in his complaint, which Hill might try to amplify on
remand, that he made no false statement to the officers, co-
erced or otherwise—that their report of the interview is an
attempt, that worked, to frame him for a false-statement
No. 13-2709 11
crime that he did not commit. To allow him to present that
argument in this civil case would be an even clearer viola-
tion of Heck.)
We are not suggesting that there is a privilege to lie in re-
sponse to an improper interrogation. “[I]t cannot be thought
that as a general principle of our law a citizen has a privilege
to answer fraudulently a question that the Government
should not have asked. Our legal system provides methods
for challenging the Government’s right to ask questions—
lying is not one of them. A citizen may decline to answer the
question, or answer it honestly, but he cannot with impunity
knowingly and willfully answer with a falsehood." Bryson v.
United States, supra, 396 U.S. at 72; see also United States v.
Mandujano, 425 U.S. 564, 583–84 (1976); and the Knox, Kay,
and Kapp cases cited earlier. We add that Brogan v. United
States, 522 U.S. 398, 404–05 (1998), rejected a claim that the
Fifth Amendment barred a false-statement conviction under
18 U.S.C. § 1001 (the ground of Hill’s false-statement convic-
tion as well) merely because “it places a ‘cornered suspect’ in
the ‘cruel trilemma’ of admitting guilt, remaining silent, or
falsely denying guilt.”
But this is not a case in which the government “should
not have asked” the critical question (the question whether
Hill used a bagman). There would have been nothing wrong
with the government’s asking him that question. The wrong
lay in beating or terrorizing him into answering. “The use of
coerced confessions, whether true or false, is forbidden be-
cause the method used to extract them offends constitutional
principles.” Lego v. Twomey, 404 U.S. 477, 624 (1972); see also
Colorado v. Connelly, 479 U.S. 157, 163 (1986); Brown v. Missis-
12 No. 13-2709
sippi, 297 U.S. 278, 286 (1936) (“the rack and torture chamber
may not be substituted for the witness stand”).
Had the officers, foregoing brutality, merely said to Hill
“we want to ask you a question but of course you don’t have
to answer it,” and he had lied, he would be guilty of making
a false statement to the government. But as far as anyone can
know, had they said that, he would not have answered the
question at all—in other words, he would have said noth-
ing—or he might even have answered it truthfully; but in
either case he could not have been convicted of making a
false statement. Were he allowed to prove this in this civil
suit, he would be denying the validity of his conviction. And
that Heck forbids.
For completeness we note that while we have character-
ized Hill’s claims regarding the three statements as Fifth
Amendment claims, they would fare the same as Fourth
Amendment claims based on the defendants’ alleged use of
excessive force to extract an incriminating statement from
him (his denial that he used a bagman). In Evans v. Poskon,
603 F.3d 362, 364 (7th Cir. 2010), in which the defendant was
convicted of attempted murder and resisting arrest, we said
that
a fourth-amendment claim can coexist [that is, without vio-
lating the Heck principle] with a valid conviction. [Evans]
contends three things: (1) that he did not resist being taken
into custody; (2) that the police used excessive force to ef-
fect custody; and (3) that the police beat him severely even
after reducing him to custody. (Evans says that his skull
was fractured and his face mangled, leading to three sur-
geries and bone grafts. He also contends that his vision has
been permanently impaired. These are not normal conse-
quences of arrest.) Proposition (1) is incompatible with his
No. 13-2709 13
conviction; any proceedings based on this contention must
be stayed or dismissed under Wallace [v. Kato] or Heck. But
propositions (2) and (3) are entirely consistent with a con-
viction for resisting arrest. See Gilbert v. Cook, 512 F.3d 899
(7th Cir. 2008); VanGilder v. Baker, 435 F.3d 689, 692 (7th
Cir. 2006); Dyer v. Lee, 488 F.3d 876, 881 (11th Cir. 2007)
(collecting similar decisions in other circuits). These as-
pects of the suit can proceed.
Evans’s first contention, like Hill’s first, implicitly challenged
his conviction; his second and third contentions, like Hill’s
second and third contentions, did not—Evans’s because
there was no inconsistency between his second and third
contentions and the conviction, Hill’s because his convic-
tions rested comfortably on evidence unrelated to his second
and third contentions.
Wallace v. City of Chicago, supra, which emphasizes that
most Fourth Amendment claims survive Heck, thus coexists
with Evans v. Poskon, supra, which points out that a few do
not. We remarked that coexistence in Parish v. City of Elkhart,
614 F.3d 677, 681–82 (7th Cir. 2010); see also Walden v. City of
Chicago, 755 F. Supp. 2d 942, 954–55 (N.D. Ill. 2010).
In summary, the only one of Hill’s claims that is barred
by Heck v. Humphrey from being asserted in this civil case is
his claim that his false statement to the officers was coerced.
The district court’s judgment (which dismissed the entire
suit) is therefore affirmed in part and reversed and remand-
ed in part.
14 No. 13-‐‑2709
EASTERBROOK, Circuit Judge, concurring. I agree with my
colleagues’ conclusion that Hill can proceed with his claims
under the Fourth Amendment. This enables him to recover
damages for any improper entry, force, or threats the agents
employed. It also makes it unnecessary for us to discuss his
Fifth Amendment theories. If he were seeking compensation
for his incarceration, then we would have a difference be-‐‑
tween the implications of the Fourth and Fifth Amendment
theories. But I do not understand Hill’s complaint, or his
brief, to seek compensation for anything other than the
rough treatment that he says he received at the agents’
hands. A claim so limited is independent of what he said in
response and can proceed under the rationale of Wallace v.
Kato, 549 U.S. 384 (2007), without any problem under Heck v.
Humphrey, 512 U.S. 477 (1994).
I do not join the portions of the majority opinion that see
a potential Heck problem (as applied to one aspect of Hill’s
Fifth Amendment theory) in the fact that Hill lied in re-‐‑
sponse to one question, then pleaded guilty to violating 18
U.S.C. §1001. My colleagues assert that a person who lies in
response to implied threats of physical force lacks the mental
state required for a conviction under §1001. Whether that is
so is not an issue discussed in the parties’ briefs, and I am
not at all sure that it is so. A person who tells a material
falsehood, knowing it to be false and knowing that his audi-‐‑
ence includes agents of the FBI or IRS, violates §1001; no
other mental state need be shown. See Brogan v. United
States, 522 U.S. 398 (1998) (holding that false exculpations
violate §1001 and rejecting an invitation to add requirements
or defenses in common-‐‑law fashion).
No. 13-‐‑2709 15
The law has ways to resist wrongful coercion to speak,
but lying is not among them. “[O]ur cases have consistent-‐‑
ly—indeed without exception—allowed [criminal] sanctions
for false statements or perjury; they have done so even in in-‐‑
stances where the perjurer complained that the Government
exceeded its constitutional powers in making the inquiry.
See, e.g., United States v. Knox, 396 U.S. 77 (1969); Bryson v.
United States, 396 U.S. 64 (1969); Dennis v. United States, 384
U.S. 855 (1966); Kay v. United States, 303 U.S. 1 (1938); United
States v. Kapp, 302 U.S. 214 (1937).” United States v. Man-‐‑
dujano, 425 U.S. 564, 577 (1976). My colleagues treat these
cases as if they stand for no more than the proposition that
one cannot defend against a perjury or §1001 prosecution by
contending that the question should not have been asked.
They say that, all right, but they say more too.
For example, the defendants in Dennis contended that
they could not be convicted of lying, in affidavits denying
any connection to the Communist Party, because a statute
had made an unconstitutional threat: any labor official who
failed to execute a non-‐‑Communist affidavit forfeited for
himself and his entire union all benefits of federal labor law.
Defendants did not contend that the government was for-‐‑
bidden to ask about their political affiliations; they contend-‐‑
ed, rather, that the government was forbidden to coerce
them to answer, and that because the coercion violated the
Constitution they were entitled to give false answers. The
Court rejected that contention, as it has also rejected the con-‐‑
tention that a witness wrongly threatened with imprison-‐‑
ment for remaining silent (a threat that violates the Self-‐‑
Incrimination Clause) may respond to the threat by lying.
16 No. 13-‐‑2709
In Knox the Court sustained a conviction for violating
§1001 by filing a false wagering-‐‑tax return, even though it
had earlier held that the statute requiring such a return vio-‐‑
lated the Self-‐‑Incrimination Clause. That statute made si-‐‑
lence a crime. People who had gambling income were co-‐‑
erced to speak on pain of imprisonment—and it was this
wrongful coercion that Knox tried to raise as a defense to the
charge of lying. But the Court had none of it and concluded
that remaining silent and facing jail for that silence, or telling
the truth, were the only allowed responses.
Maybe there is, or should be, a difference for the purpose
of §1001 between coercion characterized by unconstitutional
threats of imprisonment and unconstitutional threats of
force. But my colleagues do not identify a case in which the
Supreme Court has drawn that line, and as I’ve mentioned
the parties have not briefed the subject. At page 7 the majori-‐‑
ty cites Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003),
and McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006), for
the proposition that a person who lies when forced to speak
cannot be convicted of any crime (which if so would make
Hill’s contentions inconsistent with his conviction’s validity),
but neither decision deals with a person wrongfully induced
to speak; the majority has added in brackets vital language
that does not appear in Okoro or McCann. The issue I have
flagged is open to full consideration in a case that presents it.
My colleagues also suggest (slip op. 8) that Hill would
have had a duress defense. Dixon v. United States, 548 U.S. 1,
6–7 (2006), the sole cited authority, says no such thing; it
acknowledges the existence of duress as a doctrine but does
not consider when it blocks a conviction. United States v. Bai-‐‑
ley, 444 U.S. 394 (1980), which my colleagues do not cite,
No. 13-‐‑2709 17
does address that question—for a “necessity” defense, to be
sure, but duress and necessity are fraternal doctrines. Bailey
holds that an accused cannot assert the defense if he had “a
chance both to refuse to do the criminal act and to avoid the
threatened harm.” 444 U.S. at 410–11. Hill does not contend
that he was mistreated to get him to lie; he maintains that he
was mistreated to get him to speak. He could have avoided
the threatened harm by telling the truth, so under Bailey he
could not have prevailed on a defense of duress or necessity.
(My colleagues’ suggestion that Hill might have thought that
he needed to lie is inconsistent with the fact that he fessed
up immediately after lying; this scotches any contention—
which Hill himself does not advance—that the interrogators
compelled him to lie.)
Hill does not contend that he was under duress. The de-‐‑
fendants likewise do not maintain that Hill’s theories imply
(or even could imply) that the §1001 conviction is invalid be-‐‑
cause he lacked the mens rea needed for conviction or was
subject to duress. Instead they maintain that Heck bars the
whole suit because an illegal entry (a violation of the Fourth
Amendment) would have supported a motion to suppress
evidence. The panel unanimously rejects that contention,
which is inconsistent with Wallace. We should have stopped
with that conclusion. There are good reasons why courts
should confine themselves to issues raised and briefed by
the parties; this case illustrates them. The majority’s unguid-‐‑
ed journey through theories of criminal responsibility may
make it unduly hard to enforce §1001, which isn’t remotely
what the Supreme Court set out to accomplish in Heck. I
hope that the court will have an open mind when, in some
future case, these subjects matter and the litigants join issue.