In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1344
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JIMMY B ROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 861—Rebecca R. Pallmeyer, Judge.
A RGUED D ECEMBER 1, 2011—D ECIDED D ECEMBER 30, 2011
Before E ASTERBROOK, Chief Judge, C UDAHY, Circuit
Judge, and P RATT, District Judge.
C UDAHY, Circuit Judge. This case concerns the ways
in which a defendant may acknowledge that he has
understood and has waived his Miranda rights. Officer
Turner Goodwin arrested Jimmy Brown for illegally
The Honorable Tanya Walton Pratt, District Judge for the
Southern District of Indiana, is sitting by designation.
2 No. 11-1344
possessing a firearm. While Brown was in the back
of a squad car, Goodwin informed Brown of his
Miranda rights. Goodwin asked if Brown understood
those rights. Brown slightly nodded his head and re-
sponded “pshh.” Brown proceeded to answer several
of Goodwin’s questions and requested a deal. Brown
argues that a mere head bob or dismissive noise is insuf-
ficient to show understanding of Miranda rights. Brown
was later informed of his Miranda rights and inter-
rogated at the station house. Brown moved to suppress
his post-arrest statements. The district court denied his
motion after an evidentiary hearing. Brown was convicted
after a jury trial. On appeal, Brown raises two issues:
(1) whether the court erred in denying his motion to
suppress and (2) whether there was sufficient evidence
to convict. While Brown’s immediate responses to his
Miranda warnings may have been ambiguous, de-
fendant’s attempts to negotiate a deal and his selective
answering of questions are evidence that he understood
his rights and voluntarily waived them. For the reasons
that follow, we affirm on both issues.
In March 2008, Officers Goodwin and Marcus McGrone
stopped their squad car to investigate a gathering of
men in front of a house. The officers saw one of the men,
Brown, flee from the scene with a handgun in his waist-
band. After a chase, the officers arrested Brown in front
of the residence of Gwendolyn Thompson.
The officers handcuffed Brown and placed him in the
back of a squad car. Goodwin read Brown his rights
under Miranda v. Arizona, 384 U.S. 436, 479 (1966). When
No. 11-1344 3
asked if he understood those rights, Brown bobbed his
head and made a sighing sound. Goodwin interpreted
this to mean “I know my rights” and began to inter-
rogate Brown. Brown indicated that he had a gun due to
a “murder hit” put on his head, that he did not want to
go back to jail and that he would like to strike a deal to
help himself. Goodwin asked who in particular from
the “80s babies” ordered the “hit.” Brown declined to
answer. Goodwin and McGrone then took Brown to
the police station.
At the station, Officer McGrone again informed Brown
of his rights under Miranda. Brown responded “Yeah”
when asked if he understood his rights. Brown also
answered “Yeah” when asked if he wanted to continue
speaking. Brown again admitted that he had had the
handgun because the “80s babies” had a “hit” out on him.
The interview ended shortly thereafter as Brown re-
quired treatment for injuries he sustained during his
flight from the police. At the hospital, Brown told
Dr. Thomas Bajo that he hurt his arm by falling from
a fence as he was trying to get away from the police.
I.
Brown argues that he did not clearly indicate that
he understood his Miranda rights and thus did not volun-
tarily waive those rights. In considering a district court’s
denial of a motion to suppress, this Court reviews legal
questions de novo, United States v. Jackson, 598 F.3d 340,
344 (7th Cir.), cert. denied, 131 S.Ct. 435 (2010), and findings
4 No. 11-1344
of fact for clear error, giving deference to the district
court’s determinations of credibility. Id. “A factual
finding is clearly erroneous only if, after considering all
the evidence, we cannot avoid or ignore a definite and
firm conviction that a mistake has been made.” Id.
(internal quotation and citation omitted).
The government must show that a Miranda waiver
was “voluntary in the sense that it was the product of a
free and deliberate choice.” Berghuis v. Thompkins, 130
S.Ct. 2250, 2260 (2010) (quoting North Carolina v. Butler,
441 U.S. 369, 373 (1979)). A Miranda “waiver can be either
express or implied.” United States v. Upton, 512 F.3d 394,
399 (7th Cir. 2008) (citing Butler, 441 U.S., at 375-76). A
person may take actions that constitute a waiver of his
rights “without expressly saying so.” Id. (quoting Butler,
441 U.S. at 373). Courts evaluate the voluntary nature of
a defendant’s actions in the context of his age, ex-
perience, education, background, intelligence, the
length of questioning and other circumstances. See, e.g.,
Johnson v. Pollard, 559 F.3d 746, 753 (7th Cir. 2009) (citing
Gilbert v. Merchant, 488 F.3d 780, 791 (7th Cir. 2007)).
Looking at the totality of the circumstance, we feel it is
clear that Brown understood and waived his rights.
Officers gave Miranda warnings to Brown twice. After
each recitation, he made it known that he understood
those rights and proceeded to answer questions. It is
immaterial that defendant did not sign a waiver form
or even utter a clear yes in response to the first recitation
of Miranda.
Even if this Court were to dismiss Brown’s upward
nod as ambiguous, Brown’s immediate actions con-
No. 11-1344 5
stituted an implied waiver. Brown has had substantial
experience with the criminal justice system due to six
previous convictions. Despite his experience, Brown did
not request a lawyer or that questioning cease. See
United States v. Banks, 78 F.3d 1190, 1198 (7th Cir. 1996)
(finding waiver where defendant had “prior experience
with law enforcement officials”) vacated on other grounds
by Mills v. United States, 519 U.S. 990 (1996). Instead, it
appears that Brown voluntarily provided information
in the hope that he could make a deal with police. Thus,
Brown asked Goodwin if there was anything Goodwin
could do for him after Brown answered a few questions.
In light of Brown’s experience and eagerness to strike
a deal, it is clear that Brown understood his rights and
thought he might benefit from waiving them. See United
States v. Upton, 512 F.3d 394, 399 (7th Cir. 2008).
Brown also did not answer all of Goodwin’s questions,
indicating that Brown understood he had the right to
remain silent. Brown told Goodwin that he was carrying
the gun to protect himself because the “80s babies” had
a “hit” out on him. However, when Goodwin asked
Brown to name a specific individual within that faction
who ordered the “hit,” Brown refused to answer. There
can be an implied waiver where a defendant “selectively
chose not to answer some of the questions that were
put to him.” Banks, 78 F.3d at 1198.
II.
Brown also argues that there was insufficient evidence
to convict him for illegal possession of a firearm. In con-
6 No. 11-1344
sidering a conviction for sufficiency of evidence, this
Court considers the evidence in the light most favorable
to the government. United States v. Carillo, 435 F.3d 767,
775 (7th Cir. 2006). Reversal is appropriate “only when
the record contains no evidence . . . upon which a rational
trier of fact could find guilt beyond a reasonable doubt.”
United States v. Starks, 309 F.3d 1017, 1021 (7th Cir. 2002).
Meeting this standard “presents a nearly insurmountable
hurdle to the defendant.” United States v. Fassnacht, 332
F.3d 440, 447 (7th Cir. 2003) (internal quotations omitted).
To convict for felon in possession of a firearm under
18 U.S.C. § 922(g), the jury must find 1) the defendant
had a prior felony conviction; 2) defendant knowingly
possessed or received a firearm; and 3) the firearm
traveled in or affected interstate commerce. United States
v. Hodges, 315 F.3d 794, 799 (7th Cir. 2003). Brown
contests only the sufficiency of the evidence as to the
second element. However, the testimony of arresting
officers Goodwin and McGrone, and Brown’s own state-
ments to police and medical personnel clearly provide
sufficient evidence.
Officers Goodwin and McGrone testified that they
pulled up to investigate a gathering of men on a street
corner, that Brown fled the scene carrying a gun stuffed
into the waistband of his pants and that, after chasing
Brown, the officers caught up with him and found him
in possession of a blue steel handgun. The testimony of
the officers was consistent and plausible and was cor-
roborated by Brown’s own statements. See Starks, 309
F.3d at 1025 (noting that juries may properly consider
flight as evidence of guilt).
No. 11-1344 7
Brown makes four arguments in support of his insuf-
ficiency claim, which are either unconvincing or present
jury questions. There was ample evidence to convict
Brown. When viewing the evidence in the light most
favorable to the government, this Court rejects de-
fendant’s argument that no rational jury could find
beyond a reasonable doubt that Brown knowingly pos-
sessed a firearm.
For the foregoing reasons, the judgment is A FFIRMED.
12-30-11