NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 31, 2016
Decided March 16, 2017
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐2657
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Illinois.
v.
No. 13‐CR‐30266‐MJR
TIMOTHY R. COLLIER,
Defendant‐Appellant. Michael J. Reagan,
Chief Judge.
O R D E R
A jury found Timothy Collier guilty of two counts of Hobbs Act robbery, 18 U.S.C.
§ 1951(a), two counts of carrying and using a firearm during a crime of violence, 18
U.S.C. § 924(c)(1)(A), and one count of possessing a firearm as a felon, 18 U.S.C.
§ 922(g)(1). The convictions stem from robberies of a pawn shop in East St. Louis, Illinois,
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
No. 15‐2657 Page 2
and a liquor store in Belleville, Illinois. During the pawn‐shop robbery, Collier shot the
store owner three times, including one point‐blank shot to the back of the head. The
owner somehow managed to survive. Calling the crime “exceptionally heartless,” the
district court sentenced Collier to life plus 900 months in prison.
Collier has appealed, and a new lawyer was appointed for the appeal. That lawyer
asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386
U.S. 738, 744 (1967). Collier opposes the lawyer’s motion and has exercised his right under
Circuit Rule 51(b) to identify issues he believes should be pursued. The lawyer’s brief
explains the nature of the case and considers issues that an appeal of this kind might be
expected to involve. The analysis appears thorough, so we limit our review to the subjects
the lawyer discusses plus the contentions in Collier’s response. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel first considers a challenge to the district court’s decision to refuse to grant
a motion for a mistrial after Collier’s longtime on‐again off‐again girlfriend testified about
some clothing she had provided to him. The defense argued at trial that the line of
questioning about Collier having been out of town and returning with “some papers”
would have led the jury to conclude that Collier had been in prison before the charged
robberies. We agree with counsel that the challenge would be pointless. The district court
issued a curative instruction to the jury in response to the testimony. The judge also
pointed out in a post‐trial order that the jury would have learned of Collier’s previous
felony conviction anyway because the parties stipulated to it for the charge of possessing
a firearm as a felon. We would review the denial of a mistrial for abuse of discretion, and
we agree with counsel that there is no basis for finding that the witness’s testimony
denied Collier a fair trial or that denial of a mistrial was an abuse of discretion.
See United States v. Roux, 715 F.3d 1019, 1029 (7th Cir. 2013); United States v. Lane, 591 F.3d
921, 927 (7th Cir. 2010).
Counsel next considers renewing two challenges made at trial to the introduction
of evidence from a video recording of Collier’s interrogation. First, Collier objected to an
excerpt from the recording in which he suggests a possible alibi; he feared that the excerpt
might lead the jury to believe he had an obligation to raise an alibi defense. Second,
Collier objected to a still image from the recording because, he argued, it showed the
prison clothes he was wearing more clearly than the rest of the video. We agree with
counsel that it would be frivolous to argue the district court abused its discretion in
allowing this evidence. With respect to the alibi references, the court instructed the jury
that Collier had no obligation to raise any defense, and counsel cannot identify any reason
to believe that the jury disobeyed its duty to follow this instruction. See United States v.
Clark, 535 F.3d 571, 581 (7th Cir. 2008); United States v. Serfling, 504 F.3d 672, 677 (7th Cir.
2007). And because the video recording was itself admissible, nothing could be gained
No. 15‐2657 Page 3
by asserting the court had to exclude a still image from it.
Counsel also evaluates whether, because the prosecutor in her opening statement
described expected testimony from a witness who ended up not testifying, Collier could
argue that his trial was unfair. But counsel correctly concludes that such a challenge
would be hopeless. The district court instructed the jury that counsel’s statements were
not evidence, and again nothing suggests that the jury ignored the instruction and based
a decision on the prosecutor’s statement instead of evidence. See Clark, 535 F.3d at 581;
United States v. Hall, 165 F.3d 1095, 1115–16 (7th Cir. 1999).
Counsel next considers whether Collier could make a non‐frivolous argument that
grand‐jury testimony about the police investigation was misleading, rendering his trial
unfair. During that investigation, when presented with a photo array that included an
image of Collier, the victim of the robbery and shooting told police that Collier was
“definitely” not his attacker. The agent who presented the array did not relay this
statement to the grand jury. The agent said instead only that the victim was unable to
make a positive identification. This is a troubling discrepancy, but it did not affect the
fairness of the trial. At trial Collier’s counsel cross‐examined the agent about it and during
closing argument argued that it undermined the prosecution’s case. Moreover, such
errors before a grand jury are harmless if a trial jury finds the defendant guilty. See United
States v. Mechanik, 475 U.S. 66, 72–73 (1986); United States v. Philpot, 733 F.3d 734, 741–42
(7th Cir. 2013).
Counsel weighs a potential challenge to the district court’s application of the
sentencing guidelines. Because Collier used a firearm in connection with committing
other offenses (including assault with attempt to commit murder), the court used a
guideline cross‐reference that increased his offense level. See U.S.S.G. §§ 2K2.1(c)(1);
2X1.1; 2A2.1. Collier had objected to this cross‐reference. He argued that the discharge of
the firearm already resulted in an enhanced penalty under 18 U.S.C. § 924(c)(1)(A), so
that applying the cross‐reference “double‐counted” the increase for to the discharge.
We agree with counsel that this claim would be pointless. Under the Guidelines,
double‐counting occurs when a single aspect of the defendant’s conduct triggers multiple
increases in offense levels. See United States v. Diekemper, 604 F.3d 345, 354 (7th Cir. 2010).
But double‐counting is permissible unless a specific guideline provides otherwise, and
no guideline prohibited it here. See United States v. Vizcarra, 668 F.3d 516, 520–21 (7th Cir.
2012). In any event, the cross‐reference did not double‐count discharge of a firearm
because the district court found that Collier did not merely discharge it. He fired it
intentionally at the victim’s head from point‐blank range.
Finally, we agree with counsel that Collier could not bring a claim based on the
investigators’ decisions not to collect and test certain DNA evidence. The claim would
No. 15‐2657 Page 4
require some evidence of bad faith, and counsel cannot identify any in this record. See
Illinois v. Fisher, 540 U.S. 544, 547–48 (2004); United States v. Lee, 399 F.3d 864, 865 (7th Cir.
2005).
That brings us to the arguments in Collier’s Rule 51(b) response. He first proposes
to argue that he should not have been convicted under § 924(c) for carrying and using a
firearm during a crime of violence because his Hobbs Act robberies under § 1951(a) are
not crimes of violence. He reasons that § 1951(a) robberies are not crimes of violence
under the elements clause of § 924(c)(3)(A), and the residual clause of § 924(c)(3)(B) is
unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015). Collier is
incorrect about the elements clause. Section 1951(b)(1), which makes unlawful the taking
of property from the presence of another “by means of actual or threatened force, or
violence, or fear of injury . . . to his person or property,” closely tracks the definition of
“crime of violence” in the elements clause of § 924(c)(3)(A), which includes offenses that
have “as an element the use, attempted use, or threatened use of physical force against
the person or property of another.” We recently held that a Hobbs Act robbery remains a
crime of violence under the elements clause of § 924(c). United States v. Anglin, 846 F.3d
954, 965 (7th Cir. 2017). Anglin controls, so Collier’s proposed argument would fail.
Collier next suggests a Sixth Amendment challenge to the jury venire. In a post‐
trial order, the district court granted Collier access to some documents relating to the jury
venire, including the court’s plan for the random selection of jurors. The judge also
offered his “recollection” that no African Americans appeared among the 42 potential
jurors in the venire “to the extent one can discern race from merely looking at a person.”
But it would be frivolous to argue from the current record that the jury venire
violated the Sixth Amendment. To establish a prima facie violation of the
Sixth‐Amendment’s fair‐cross‐section requirement, Collier must show from this record:
“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community;
(2) that the representation of this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such persons in the community; and (3)
that this underrepresentation is due to systematic exclusion of the group in the
jury‐selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). We can assume, based
on the district court’s recollection about the lack of African Americans in the venire, that
Collier would satisfy the first two prongs. But the record is insufficient to satisfy the third
prong because the venire was randomly selected from voter lists under an authorized
plan. United States v. Neighbors, 590 F.3d 485, 491–92 (7th Cir. 2009); United States v. Guy,
924 F.2d 702, 706 (7th Cir. 1991). Collier concedes that he has no evidence of systematic
exclusion of African Americans in the jury‐selection process.
Collier also wants to challenge the district court’s instructions to the jury on the
No. 15‐2657 Page 5
§ 924(c) charges of carrying and using a firearm during a crime of violence. He contends
that the instruction did not include an essential element of the offense—that the offense
must be a felony. But the court properly instructed the jury on the requisite elements of
the offense: that Collier carried and used a firearm during a crime of violence. The
instruction thus adequately and fairly stated the controlling law defining the offense.
See United States v. Aldaco, 201 F.3d 979, 989–90 (7th Cir. 2000).
Finally, Collier contends that the district court lacked jurisdiction to order
restitution. He observes that the court ordered restitution after he filed his notice of
appeal and argues that, because he filed that notice, the district court was disabled from
ordering restitution. But a court retains jurisdiction to impose restitution when the
victim’s losses were not known before sentencing. See 18 U.S.C. § 3664(d)(5); United States
v. Ferguson, 831 F.3d 850, 853 n.1 (7th Cir. 2016); United States v. Tulsiram, 815 F.3d 114,
117 n.2 (2d Cir. 2016). A challenge to jurisdiction would thus go nowhere.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.