In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2690
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONALD L. JOHNSON, also known as
JOSHUA M C G HEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CR-121—Rudolph T. Randa, Judge.
A RGUED JANUARY 9, 2012—D ECIDED M AY 24, 2012
Before F LAUM and K ANNE, Circuit Judges, and C HANG ,
District Judge.
K ANNE, Circuit Judge. Ronald L. Johnson was con-
victed of possession with intent to distribute 50 grams
or more of crack cocaine and possession of a firearm by
The Honorable Edmond E. Chang, United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 11-2690
a convicted felon. He was sentenced to 300 months’
imprisonment. On appeal, Johnson challenges his con-
viction and sentence on several grounds, arguing that
(1) his motion to suppress was improperly denied; (2) the
trial judge should have recused himself sua sponte; (3) an
aiding and abetting instruction was given in error; (4) the
obstruction of justice enhancement should not apply;
and (5) the sentencing judge improperly determined
that Johnson is a career offender. After considering all
of these arguments, we affirm Johnson’s conviction and
sentence.
I. B ACKGROUND
Sometime in late 2008, an informant told Milwaukee
police officers that a man known as “Loc” was dealing
large amounts of cocaine out of his residence on West Vliet
Street, part of the Hillside Terrace Housing Project in
Milwaukee. Loc and his girlfriend, Nina Fenske, resided
in Unit 301, although only Fenske’s name was on the
lease. The informant also told officers that Loc had a
gun and prior criminal history. Armed with this infor-
mation, Milwaukee police officers conducted surveillance
of Unit 301 for approximately two months. During
this time, they observed only Fenske and a man later
identified as Johnson coming and going from the residence.
On the morning of January 29, 2009, police officers
arranged to execute a search warrant at the West Vliet
address. Officers Todd Bohlen and James Henry set up
surveillance in an unmarked police car. They observed
Johnson exit the residence and drive away in a silver
No. 11-2690 3
Chevy Impala. Officers Bohlen and Henry followed
Johnson for approximately four blocks before pulling
him over, even though Johnson did not commit a traffic
violation. Officer Bohlen testified at the suppression
hearing that the purpose of this stop was to ensure
the preservation of evidence and safety of the officers
while they executed the search warrant.
Officer Bohlen approached Johnson’s vehicle and re-
quested his driver’s license. In response, Johnson handed
Officer Bohlen a driver’s license issued in the name of
Joshua McGhee. 1 Officer Bohlen then inquired if Johnson
had any aliases, to which Johnson replied, “Loc, Ron Loc.”
Upon request, Johnson also provided his current address
on West Vliet Street. After this short exchange, Officer
Bohlen asked Johnson to exit the vehicle to conduct a pat-
down for safety purposes. During this pat-down, Officer
Bohlen asked if Johnson had anything on him and
Johnson stated that he had some weed in his shoe.
Johnson was then placed in handcuffs and taken to
Officer Bohlen’s vehicle. While Johnson sat in the back
seat, Officer Bohlen removed Johnson’s left shoe and
discovered a small baggie of marijuana.
At this point, Officer Bohlen informed Johnson of
the search warrant for his residence on West Vliet Street.
Johnson remained in the back of Officer Bohlen’s vehicle
while Officer Bohlen called for assistance and a police
wagon. Approximately thirty to forty minutes after
the initial traffic stop, Johnson was transported to his
1
Joshua McGhee was later identified as Johnson’s brother.
4 No. 11-2690
residence in the police wagon, where he remained in
handcuffs while officers searched his apartment.
As Johnson waited in the police wagon, Officer Bohlen
read a copy of the search warrant to him. Johnson and
Officer Bohlen disagree on the ensuing dialogue. Officer
Bohlen testified that immediately after he read the
search warrant aloud, Johnson confessed that everything
in the apartment was his. In contrast, Johnson testified
that Officer Bohlen read the warrant and then asked
him, “Is there anything that you want to talk to me
about, that you want to tell me right now?” (Supp. Tr. at
87.) Johnson responded that he didn’t know what Officer
Bohlen was talking about, to which Officer Bohlen
replied, “Well, you know, if we go in here and find any-
thing we cannot only arrest you but we can arrest who’s
ever [sic] on the lease.” Id. According to Johnson, it was
only after Officer Bohlen made this statement that
Johnson confessed that anything found in the apart-
ment belonged to him.
Following Johnson’s confession, he and Officer Bohlen
spoke for a while longer, although Officer Bohlen did not
recall the specifics of their conversation. At one point,
Officer Bohlen asked Johnson for the combination to a
safe discovered in the apartment, but Johnson told
Officer Bohlen the safe belonged to his girlfriend.
Johnson confessed during the suppression hearing that
this was a lie and he later gave the combination to
officers at the police station. Officers discovered a
firearm and a large amount of cash in the safe.
In the end, police officers recovered crack cocaine,
marijuana, ecstasy pills, a scale, a firearm, and $19,940
No. 11-2690 5
cash from the apartment. The search lasted approxi-
mately one hour, after which Johnson was transported
to the Milwaukee police department’s administration
building for booking. There, Johnson was taken to an
interview room. According to Johnson’s testimony,
Officer Bohlen entered the room first. He asked Johnson
if he knew about the items found in the apartment,
implied that Johnson’s girlfriend would be kicked off
of housing assistance, and asked if Johnson wanted his
girlfriend’s daughter to end up in state custody. Johnson
maintains that no one else was present during this ques-
tioning. According to the government, Officer Andrew
Bell advised Johnson of his Miranda rights and inter-
viewed Johnson for approximately forty minutes. Officer
Bohlen was present for a majority of the interview but
did not enter the room until after Officer Bell began
questioning Johnson. During the interview, Johnson
admitted that the apartment contained a scale, crack
cocaine on a shelf in the bedroom closet, and a safe
that held a gun and approximately $20,000. He also
discussed his knowledge of drug distribution and esti-
mated that in two years he sold approximately ten to
fifteen kilograms of cocaine. He identified his supplier
as a man from Chicago named “Simon,” and remarked
that Simon never brought the cocaine to Johnson’s house.
On March 24, 2009, a federal grand jury charged
Johnson with possession of cocaine base with intent to
distribute, possession of MDMA (Ecstasy) with intent
to distribute, and possession of a firearm by a convicted
felon. Johnson’s case was docketed as 09-CR-83 and
assigned to the Honorable J.P. Stadtmueller. Johnson
6 No. 11-2690
filed a motion to suppress, which argued that Johnson’s
statements were obtained in violation of Miranda v. Ari-
zona, 384 U.S. 436 (1966). This motion was assigned to
Magistrate Judge Aaron E. Goodstein. While the motion
to suppress was pending, Judge Stadtmueller recused
himself from the case, citing 28 U.S.C. § 455(a) and (b)(3).
Judge Stadtmueller provided no additional explanation
for his recusal. The Honorable Rudolph T. Randa was
thereafter assigned to the case.
The magistrate judge held an evidentiary hearing
on Johnson’s motion to suppress on September 2, 2009.
Following this hearing and additional briefing, Magistrate
Judge Goodstein recommended that the motion be de-
nied. Judge Randa adopted this recommendation
on February 24, 2010, and scheduled Johnson’s trial for
June 1, 2010. In May, Johnson filed a motion to
dismiss, arguing that his trial was not conducted
within the time requirements of the Speedy Trial Act, 18
U.S.C. § 3162(a)(2). The government agreed that a speedy
trial violation occurred but asked that the case be dis-
missed without prejudice. Judge Randa dismissed the
case without prejudice on June 10, 2010.
On June 22, 2010, a federal grand jury returned another
three-count indictment against Johnson based upon the
same evidence as Johnson’s first case. This second case,
docketed as 10-CR-121, was again assigned to Judge
Stadtmueller. Johnson was arraigned for a second time
and new motions deadlines were set. This time, Johnson
filed a motion to suppress based on an alleged Franks
violation. See Franks v. Delaware, 438 U.S. 154, 155-56
No. 11-2690 7
(1978) (permitting a defendant to challenge the constitu-
tionality of a search if he can show intentional or
reckless misrepresentations in the warrant affidavit).
Johnson did not file a Miranda motion in the second case
and his Franks motion was ultimately denied.
Judge Stadtmueller presided over Johnson’s two-day
jury trial. Johnson testified and claimed that his
girlfriend’s friend, Jamie, and her boyfriend, Simon, had
moved into the residence on West Vliet Street. Johnson
felt Simon staying there was a problem because he was
selling drugs from that address. Johnson admitted that
the gun belonged to him but denied that the drugs were
his. He stated that he lied to officers following his arrest
because he was concerned that they would arrest his
girlfriend instead. After the close of evidence, Judge
Stadtmueller instructed the jury and, at the government’s
request and over Johnson’s objection, included an aiding
and abetting instruction on the basis of Johnson’s testi-
mony that Simon sold drugs out of the West Vliet ad-
dress. The jury convicted Johnson on two counts: posses-
sion with intent to distribute 50 grams or more of crack
cocaine in violation of 21 U.S.C. § 841(a)(1), and posses-
sion of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g)(1).2
Prior to sentencing, Judge Stadtmueller asked the
parties to brief the applicability of the Fair Sentencing
Act of 2010 (“FSA”) to Johnson’s case. On April 8, 2011,
2
Count Two, possession with intent to distribute MDMA, was
dismissed prior to trial.
8 No. 11-2690
the government sent a letter to Judge Stadtmueller
noting that, because the jury found that Johnson was
liable for 280 grams or more of crack cocaine, the retroac-
tive application of the FSA was not at issue. In other
words, the drug amount found by the jury was enough
to trigger a ten-year mandatory minimum sentence,
even under the FSA’s amendments to 21 U.S.C. § 841.
On the same day this letter was received by the district
court, Judge Stadtmueller recused himself from the
case, again citing 28 U.S.C. § 455(a) and (b)(3). The case
was reassigned to Judge Randa.
At sentencing, Judge Randa was tasked with deter-
mining an appropriate sentence for Johnson, despite
not having presided over the trial. Judge Randa first
concluded that Johnson was a career offender based on
his prior convictions for aggravated robbery, aggravated
discharge of a firearm, and aggravated battery with a
firearm. He also applied sentencing enhancements
for possession of a firearm and obstruction of justice.
Johnson received a sentence of 300 months on Count One
and 120 months on Count Three, to run concurrent to
each other and to the state court sentences Johnson
was also serving. Johnson filed this timely appeal.
II. A NALYSIS
As noted previously, Johnson challenges several
aspects of his conviction and sentence, including (1) the
denial of his motion to suppress; (2) Judge Stadtmueller’s
refusal to recuse himself sua sponte; (3) the aiding and
abetting instruction given at trial; (4) the application of
No. 11-2690 9
the obstruction of justice enhancement; and (5) the
finding that Johnson is a career offender. Following oral
argument, we issued an opinion addressing whether
this court may consider Johnson’s suppression argu-
ment since he did not renew his motion to suppress in
the second case. In that opinion, we held that Johnson’s
argument was merely forfeited and could be reviewed
for plain error. Accordingly, we granted Johnson’s
motion to expand the record on appeal and permitted
Johnson and the government to file supplemental
briefs addressing the denial of Johnson’s motion to sup-
press in 09-CR-83. United States v. Johnson, 668 F.3d
540, 543 (7th Cir. 2012). We withheld consideration of
Johnson’s additional challenges until after the record
was supplemented and the parties had filed their briefs.
Id. The parties now having filed their supplemental
briefs, this matter is ripe for decision.
A. Motion to Suppress
Johnson first challenges the district court’s denial of his
motion to suppress statements allegedly elicited in viola-
tion of Miranda v. Arizona, 384 U.S. 436 (1966). Because
this argument was forfeited by Johnson’s failure to raise
it in his second case, we review the district court’s
holding for plain error. Johnson, 668 F.3d at 542.3 Applying
3
Johnson argues that we should reconsider our finding of two
distinguishable cases (09-CR-83 and 10-CR-121), arguing that
his second case should be treated like a superseding indict-
(continued...)
10 No. 11-2690
this standard, we reverse only when we find: “(1) an error
or defect (2) that is clear or obvious (3) affecting the de-
fendant’s substantial rights (4) and seriously impugning
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Anderson, 604 F.3d 997,
1002 (7th Cir. 2010).
The Supreme Court’s holding in Miranda was
designed to safeguard a suspect’s Fifth Amendment
3
(...continued)
ment. We reject Johnson’s analogy, and find support for this
position in our sister circuit’s precedent:
[T]here are crucial distinctions between a superseding
indictment and a reindictment. Hoslett’s separate
indictment on the firearm charges constituted an
entirely new case. The charges were adjudicated in
a separate trial. Hoslett was subjected to a separate
detention hearing in the new case. While a super-
seding indictment requires a rearraignment, it does
not create a new case with its own, independent iden-
tity. The district court established new and different
motion deadlines for the second case. Hoslett filed a
separate motion to suppress in that case. . . . In sum,
when a superseding indictment is filed there is only
one criminal action; a reindictment results in two. The
distinction makes all the difference here.
United States v. Hoslett, 998 F.2d 648, 658 (9th Cir. 1993). Al-
though Hoslett addressed charges dismissed on the motion of
the government which were later refiled in a new indictment,
we believe the Ninth Circuit’s discussion is also relevant to
this case. Accordingly, we affirm our prior ruling that the
two cases at issue here are two distinct cases.
No. 11-2690 11
constitutional guarantee against self-incrimination. J.D.B.
v. North Carolina, 131 S. Ct. 2394, 2401 (2011). Under
Miranda and its progeny, “the government may not use
statements stemming from the custodial interrogation of
a defendant unless the government has utilized
procedural safeguards effective to secure the privilege
against self-incrimination.” United States v. Ambrose, 668
F.3d 943, 954 (7th Cir. 2012) (citing Berkemer v. McCarty,
468 U.S. 420, 428 (1984)). In order for Miranda’s
safeguards to apply, a suspect must be in “custody” and
subject to “interrogation.” A suspect is in custody for
purposes of Miranda if, based on a totality of the circum-
stances, a reasonable person in the suspect’s position
would not have believed he was free to leave. See United
States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011). To
constitute custodial interrogation, a police officer’s
words or actions must be reasonably likely to elicit an
incriminating response. Rhode Island v. Innis, 446 U.S. 291,
301 (1980). If a suspect makes an incriminating state-
ment during custodial interrogation, the burden is
on the government to show the suspect “voluntarily,
knowingly and intelligently” waived his rights. J.D.B.,
131 S. Ct. at 2401 (quoting Miranda, 384 U.S. at 444).
Johnson gave three statements to police officers: (1) after
he was pulled over, Johnson admitted his shoe con-
tained a bag of marijuana; (2) after Officer Bohlen read
the search warrant to him, Johnson confessed that every-
thing in the apartment was his; and (3) after he
was taken to the police station, Johnson spoke with
Officers Bell and Bohlen about the drugs, gun, and money
found at the West Vliet residence. We address each of
these statements in turn.
12 No. 11-2690
1. Possession of Marijuana
Johnson gave his first incriminating statement after
he was pulled over by Officer Bohlen. Officer Bohlen
testified that he detained Johnson for purposes of exe-
cuting the search warrant, although he did not communi-
cate his intent to Johnson. After approaching Johnson’s
vehicle, Officer Bohlen requested his driver’s license
and inquired about his address and aliases. Officer Bohlen
then asked Johnson to exit the vehicle. As Officer Bohlen
was conducting a pat-down for weapons, he asked John-
son, “Do you have anything on you you shouldn’t
have?” (Supp. Tr. at 22.) Johnson replied that he had
marijuana in his shoe. At this point, Johnson was placed
in handcuffs. Officer Bohlen did not read Johnson his
Miranda rights at any time during this exchange.
In Johnson’s first case, the district court cited several
reasons for denying Johnson’s motion to suppress as to
his admission of possessing marijuana. First, the district
court found that, prior to Johnson’s confession, a rea-
sonable person in Johnson’s position would have
believed he was detained pursuant to a routine traffic
stop. Under Terry v. Ohio, 392 U.S. 1 (1968), a person
subject to a routine traffic stop is not in custody for
Miranda purposes. Accordingly, because all relevant
questioning occurred prior to Johnson’s arrest, he was
not in custody and there was no Miranda violation. In
addition, the district court held that Officer Bohlen’s
questions did not amount to interrogation. Preliminary
questions about a suspect’s identity and informa-
tion to confirm or dispel an officer’s suspicions are
No. 11-2690 13
permissible prior to any Miranda warnings. Finally, the
district court believed Officer Bohlen’s question about
whether Johnson had anything on him fell within the
public safety exception to Miranda, as articulated in
New York v. Quarles, 467 U.S. 649 (1984). We agree with
the district court’s reasoning.
The Supreme Court has held that police officers may
conduct an investigatory stop of an individual if they
have “specific and articulable facts sufficient to give rise
to a reasonable suspicion that a person has committed or
is committing a crime.” United States v. Johnson, 910 F.2d
1506, 1508 (7th Cir. 1990) (citing United States v. Brignoni-
Ponce, 422 U.S. 873, 881-82 (1975); Terry v. Ohio, 392 U.S. 1
(1968)). A typical traffic stop is analogous to a Terry
stop, and during these stops an officer is permitted to
ask questions to determine an individual’s identity and
to obtain information confirming an officer’s suspicions.
See Berkemer, 468 U.S. at 439. Given the nonthreatening
nature of this sort of detention, the Supreme Court has
held that “persons temporarily detained pursuant to
such stops are not ‘in custody’ for the purposes of
Miranda.” Id. at 440. Accordingly, we have previously
determined that Miranda warnings are not required
during Terry investigatory stops. See United States v.
Boden, 854 F.2d 983, 995 (7th Cir. 1988); accord United
States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994) (“While
detention during the execution of a search warrant is not
a traditional Terry stop, it is sufficiently analogous for us
to conclude that, in the usual case, Miranda warnings
are not required.” (footnote omitted)).
14 No. 11-2690
This is not to say that all investigatory stops are “typical”
or that Miranda warnings are never required. In this case,
Johnson argues that he was subject to more than a Terry
stop and was, in fact, in custody while Officer Bohlen
questioned him. The test for determining whether a
suspect is in custody during a Terry stop looks to “how
a reasonable man in the suspect’s position would
have understood his situation.” United States v. Wyatt,
179 F.3d 532, 536 (7th Cir. 1999) (quotation marks and
citation omitted). This inquiry is objective and “[n]either
the subjective views of the suspect being questioned
nor that of the officer engaging in the questioning is
considered.” Ambrose, 668 F.3d at 954. From this perspec-
tive, we agree with the district court’s conclusion that
Johnson would have understood his situation as a
routine traffic stop. Nothing in the record indicates that
Johnson was aware that officers were conducting sur-
veillance of his residence or that they had obtained a
search warrant. Instead, Johnson was pulled over while
driving his vehicle and Officer Bohlen requested his
driver’s license. A reasonable person would view this
situation as a typical traffic stop.
Nor was Johnson in custody after he got out of his
vehicle, prior to his confession that his shoe contained
marijuana. We have previously rejected the argument
that a reasonable person subject to a pat-down would
not feel free to leave, see Wyatt, 179 F.3d at 536, and there
is no other evidence to support such a claim. For
instance, no weapons were drawn, Johnson was not told
he was under arrest, Johnson was not handcuffed, only
two plainclothes officers were present, the encounter
No. 11-2690 15
occurred on a public roadway, and there was no other
display of force or physical restraint.4 Based on the
totality of the circumstances preceding Johnson’s con-
fession, a reasonable person in Johnson’s position
would have felt free to leave and he was not in custody
for Miranda purposes. Thus, the district court did not
plainly err in refusing to suppress Johnson’s con-
fession that he had marijuana in his shoe.
2. Ownership of All Items in the Apartment
Johnson made his second confession after he was
placed under arrest and transported to the West Vliet
address. At this point in time, it is undisputed that
Johnson was in custody and had not been read his
4
In determining whether a reasonable person would have
believed he or she was free to leave, we consider such factors as:
(1) whether the encounter occurred in a public place;
(2) whether the suspect consented to speak with
the officers; (3) whether the officers informed the
individual that he was not under arrest and was free
to leave; (4) whether the individuals were moved to
another area; (5) whether there was a threatening
presence of several officers and a display of weapons
or physical force; (6) whether the officers deprived
the defendant of documents she needed to continue
on her way; and (7) whether the officers’ tone of voice
was such that their requests would likely be obeyed.
United States v. Barker, 467 F.3d 625, 629 (7th Cir. 2006)
(quoting Wyatt, 179 F.3d at 535).
16 No. 11-2690
Miranda rights. Thus, the central issue is whether
Johnson was subjected to interrogation prior to stating
that everything in the apartment was his.
At the suppression hearing, Officer Bohlen and
Johnson offered different accounts of their interaction
at the West Vliet address. Officer Bohlen testified that
he read a copy of the search warrant from top to bottom
as Johnson sat in the back of the police wagon. After
he read the last line, Johnson stated, “Everything in
the apartment’s mine, it’s all mine.” (Supp. Tr. at 28.)
Officer Bohlen also testified that he did not question
Johnson in any way about the search warrant prior
to Johnson’s admission. In contrast, Johnson testified
that Officer Bohlen read the search warrant aloud and
then asked, “Is there anything that you want to talk to
me about, that you want to tell me right now?” Id. at 87.
In addition, Officer Bohlen stated, “If we find anything
in the apartment I can arrest not only you but who’s
ever [sic] on the lease.” Id. According to Johnson, it
was only after this statement from Officer Bohlen that
Johnson admitted everything in the apartment belonged
to him.
Even if a suspect is in custody, his statements are
not necessarily the product of interrogation such that
Miranda’s requirements are triggered. See Ambrose, 668
F.3d at 955 (quoting United States v. Swanson, 635 F.3d
995, 1002 (7th Cir. 2011)). For instance, “voluntary in-
criminating statements are not subject to Miranda
warnings and are admissible as evidence.” Swanson, 635
F.3d at 1001-02; Ambrose, 668 F.3d at 955 (“Law enforce-
No. 11-2690 17
ment officers are not prohibited from merely listening to
a person’s voluntary statement.”). As noted previously,
the test for determining whether a suspect was sub-
jected to interrogation is whether a reasonable objec-
tive observer would believe that an officer’s express
questioning, words, or actions were “reasonably likely
to elicit an incriminating response.” Swanson, 635 F.3d
at 1002 (quoting United States v. Abdulla, 294 F.3d 830,
834 (7th Cir. 2002)). The focus is on the suspect’s percep-
tions rather than the intent of the police. Innis, 446 U.S.
at 301.
The district court determined that Officer Bohlen’s
testimony was more credible, given Johnson’s “obvious
motive to be untruthful.” In addition, noting Johnson’s
willingness to cooperate with authorities and his
testimony that he lied to officers about the ownership
of the safe in the apartment, the magistrate judge found
Johnson’s version of the encounter between him and
Officer Bohlen to be incredible. Thus, the court held
that Johnson’s statement was spontaneous and unsolicited.
We give special deference to a district court on matters
of witness credibility in light of the district court’s “supe-
rior vantage point.” United States v. Pillado, 656 F.3d
754, 770 (7th Cir. 2011) (quoting United States v. Whited,
539 F.3d 693, 697 (7th Cir. 2008)). In other words, the
district court’s decision is entitled to deference because
the magistrate judge actually heard the testimony and
observed the demeanor of the witnesses in making
his credibility determination. See United States v.
McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993). In light of
18 No. 11-2690
this standard and the record before us, we see no
reason to upset the district court’s credibility determina-
tion.
But our analysis does not end here. Even acknowl-
edging the magistrate judge’s credibility finding, Johnson
argues that Officer Bohlen’s own testimony provides
enough evidence to establish that Johnson was subjected
to interrogation. Specifically, Johnson asserts that Officer
Bohlen’s act of reading the search warrant aloud was
designed to elicit an incriminating response. Interrogation
need not be express questioning; in fact, “[a]n officer
can ‘interrogate’ a suspect for Miranda purposes without
uttering a question.” United States v. Richardson, 657 F.3d
521, 525 (7th Cir. 2011) (citing Innis, 446 U.S. at 300-01). For
instance, in Rhode Island v. Innis, a man accused of
killing another man with a shotgun was arrested and
placed in the back of a police car. 446 U.S. at 294-95. On
the way to the police station, the officers transporting
the defendant talked about the missing murder weapon,
noting that there were several handicapped children in
that area who might happen upon the weapon and hurt
themselves. Id. Apparently concerned for these children,
the defendant interrupted the conversation to tell the
officers where the shotgun was located. Id. at 295. The
Supreme Court held that the defendant was not interro-
gated by police officers because there was nothing to
suggest that the officers’ conversation was reasonably
likely to elicit an incriminating response. Id. at 302-03
(“Given the fact that the entire conversation appears
to have consisted of no more than a few off hand
remarks, we cannot say that the officers should have
No. 11-2690 19
known that it was reasonably likely that Innis would so
respond.”). The fact that the defendant may have been
subjected to “subtle compulsion” was not enough for
the Court to find a Miranda violation. Id. at 303.
In this case, Officer Bohlen read the search warrant to
Johnson as Johnson sat in the police wagon outside
the residence. Officer Bohlen testified that he ap-
proached Johnson and stated, “Okay, now I’m going to
read the warrant to you.” (Supp. Tr. at 52.) After he
read the warrant aloud, Johnson declared that
everything in the apartment was his. In light of these
facts, we find that Officer Bohlen’s actions do not consti-
tute interrogation for purposes of Miranda. This case
is analogous to those cases in which we have held
that merely reciting the evidence against a suspect is
not the functional equivalent of an interrogation. See, e.g.,
United States v. Vallar, 635 F.3d 271, 285 (7th Cir. 2011)
(“Merely apprising Vallar of the evidence against him
by playing tapes implicating him in the conspiracy did
not constitute interrogation.”); Easley v. Frey, 433 F.3d
969, 974 (7th Cir. 2006) (advising a suspect of witness
testimony implicating him in a crime that could subject
him to the death penalty was not interrogation); United
States v. Sutton, 77 F. App’x 892, 895 (7th Cir. 2003)
(nonprecedential) (officer’s statement to defendant that
he found marijuana and a gun on the defendant’s
property was not an interrogation, and defendant’s
interjection that the items belonged to him and not his
sons was an admissible, volunteered statement). By
reading the warrant aloud, Officer Bohlen informed
Johnson of the items officers had probable cause to search
20 No. 11-2690
for in his apartment, essentially advising Johnson of
potentially incriminating evidence that could be used
against him. Johnson then made a voluntary statement
in response.
Cases from our sister circuits support this holding. See,
e.g., United States v. Genao, 281 F.3d 305, 310-11 (1st Cir.
2002) (detective’s actions did not constitute interroga-
tion where detective showed suspect items seized from
his apartment and stated, “we’ve got a problem here”);
United States v. Payne, 954 F.2d 199, 202-03 (4th Cir. 1992)
(officer’s statement to defendant that they found a gun
in his house was not interrogation); Shedelbower v. Estelle,
885 F.2d 570, 572-73 (9th Cir. 1989) (informing suspect
that his accomplice was in custody and the victim
had identified the suspect was not the functional equiva-
lent of interrogation). We have previously cited with
approval the Fourth Circuit’s reasoning in Payne, noting
that providing such information to a suspect may even
be helpful to him because “ ‘information about the
evidence against a suspect may also contribute to the
intelligent exercise of his judgment regarding what
course of conduct to follow.’ ” Easley, 433 F.3d at 974
(quoting Payne, 954 F.2d at 202). “Like the Fourth Circuit,
we do not believe that the provision of information, even
if its weight might move a suspect to speak, amounts
to an impermissible ‘psychological ploy.’ ” Id.
Here, Officer Bohlen read the search warrant to
Johnson, informing him of the items the officers were
searching for within his apartment. Like Innis, there
was nothing to indicate that reading the search
No. 11-2690 21
warrant aloud would prompt Johnson to confess to
owning everything in the apartment in order to protect
his girlfriend. The only indication that Officer Bohlen
was trying to play on Johnson’s fears that his girlfriend
would be in trouble comes from Johnson’s own
discredited testimony at the suppression hearing. Ac-
cordingly, the district court properly denied the motion
to suppress Johnson’s confession that everything in
the apartment belonged to him.
3. Johnson’s Statements at the Police Station
Johnson’s final statement to police officers occurred
during his interview at the police station with Officers Bell
and Bohlen. During this interview, which was recorded
and is part of the record, Officer Bell first introduced
himself to Johnson and asked if Johnson needed any-
thing. Johnson’s handcuffs were removed and he
was provided water and cigarettes. Officer Bell then
obtained background information from Johnson con-
cerning his personal history, family, and education.
After getting this basic information, Officer Bell read
Johnson his Miranda rights and Johnson indicated
that he understood those rights. Johnson then told
the officers what he knew about the items found in
the apartment and discussed his drug distribution activi-
ties in detail. As noted by Magistrate Judge Goodstein,
the entire interview was cordial and no threats were
made by either of the officers.
Johnson believes the statements he gave at the police
station should be excluded because they were tainted
22 No. 11-2690
by Officer Bohlen’s prior actions. To support this argu-
ment, Johnson attempts to stretch the holding of Missouri
v. Seibert, 542 U.S. 600 (2004), to this case. In Seibert, the
Supreme Court was confronted with a practice used by
some police forces of failing to provide Miranda
warnings during custodial interrogation until after the
interrogation produced a confession. Id. at 604. After a
confession was obtained, the interrogating officer
would read the suspect his Miranda rights and then
proceed through a similar line of questioning. Id. This
“question first, warn later” approach was rejected by
the Supreme Court in a plurality opinion which resulted
in two potential tests for evaluating such practices.5
5
Under the plurality’s test, the court determines whether a two-
step interrogation procedure’s “midstream recitation of
warnings after interrogation and unwarned confession” is
effective enough to accomplish the purposes of Miranda.
Seibert, 542 U.S. at 604. The court looks to: “the completeness
and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements,
the timing and setting of the first and the second, the
continuity of police personnel, and the degree to which the
interrogator’s questions treated the second round as
continuous with the first.” Id. at 615. The second test, from
Justice Kennedy’s concurrence, looks to an interrogator’s
intent in using a deliberate two-step interrogation procedure.
Id. at 622. If this deliberate procedure is used, “postwarning
statements that are related to the substance of prewarning
statements must be excluded unless curative measures are
taken before the postwarning statement is made.” Id. Such
(continued...)
No. 11-2690 23
We have yet to determine which test governs in this
circuit. See United States v. Lee, 618 F.3d 667, 678 (7th
Cir. 2010). As in Lee, we need not determine which test
applies at this juncture because the facts of this case do
not meet the requirements of either test. See id.
Johnson’s case fails to satisfy either Seibert test because
he has not shown the existence of a prewarning
custodial interrogation. Thus, his case differs markedly
from Seibert. In that case, Seibert was arrested and taken
to the police station prior to any questioning. 542 U.S.
at 604-05. Seibert was clearly in custody and the officers
engaged in interrogation lasting thirty to forty minutes.
See id. After Seibert confessed, officers gave her a twenty-
minute break followed by Miranda warnings and a sec-
ond confession. Id. at 605. In contrast, as we have
already noted, Officer Bohlen’s first contact with Johnson
occurred during a traffic stop in which Johnson was
not in custody, and thus not subjected to custodial inter-
rogation. In addition, although Johnson was in custody
at the time Officer Bohlen read the search warrant
aloud, we have already determined that this action did
not amount to interrogation. Based on these findings, at
no time prior to Johnson’s interrogation at the police
station were police officers required to read Johnson
his Miranda warnings. This case is simply not the type
of situation Seibert intended to address.
5
(...continued)
curative measures may include a substantial break in time
and circumstances such that a reasonable person would under-
stand the effect of the Miranda waiver. Id.
24 No. 11-2690
Finding that the district court did not plainly err in
denying Johnson’s motion to suppress, we now turn
to Johnson’s remaining arguments on appeal.
B. Recusal
In Johnson’s first case (09-CR-83), Judge Stadtmueller
recused himself five months into the case, noting that
he was required to recuse under 28 U.S.C. § 455(a) and
(b)(3). In Johnson’s second case (10-CR-121), Judge
Stadtmueller presided over the trial, but recused
himself prior to sentencing, citing the same statutory
authority as the first case. Johnson now argues for the
first time on appeal that Judge Stadtmueller’s failure
to recuse himself sua sponte in the second case deprived
Johnson of having the same judge preside over both
his trial and sentencing, and implicated the public
interest in the impartial administration of justice.
Under § 455(a), “[a]ny justice, judge, or magistrate
judge of the United States shall disqualify himself in
any proceeding in which his impartiality might
reasonably be questioned.” A judge shall also disqualify
himself “[w]here he has served in governmental employ-
ment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding
or expressed an opinion concerning the merits of the
particular case in controversy.” 28 U.S.C. § 455(b)(3). In
this circuit, a § 455(a) claim of bias is not properly pre-
served for appeal unless a defendant seeks a writ of
mandamus. United States v. Diekemper, 604 F.3d 345, 351-
52 (7th Cir. 2010). This rule upholds the general
No. 11-2690 25
principle that a post hoc motion for recusal does little
to remedy a § 455(a) violation, as the purpose of § 455(a)
is to preserve the appearance of impartiality. Id. at
352. Although this case presents somewhat unusual
procedural circumstances, the same reasoning applies.
Therefore, we apply the same standard. Accord United
States v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001) (“Because
a party waives his § 455(a) recusal argument by failing
to petition for a writ of mandamus, it follows that he
also waives it by failing altogether to raise it at the
district court level.”). Thus, Johnson’s § 455(a) challenge
is waived.
“ ‘It is less clear under our case law whether we may
review a refusal to recuse under section 455(b) when
the argument is raised for the first time on appeal,’ but
assuming that we can, that review will be for clear er-
ror.” Diekemper, 604 F.3d at 351 (quoting United States v.
Smith, 210 F.3d 760, 764 (7th Cir. 2000)). As in Diekemper,
Johnson did not raise the issue of recusal before the
district court but now argues that the judge had a duty
to recuse himself sua sponte. See id. Accordingly, we
review Johnson’s § 455(b)(3) challenge under a clear
error standard.
Johnson cannot meet his burden under this standard
of review. To show plain error, Johnson is required to
demonstrate that Judge Stadtmueller’s “participation in
the disposition of the case was an obvious or clear error
and that it affected his substantial rights.” Ruzzano,
247 F.3d at 695. The evidence before the court indicates
that Johnson received a fair trial and the fairness and
26 No. 11-2690
integrity of the judicial proceedings were unaffected
by Judge Stadtmueller’s presence. There is no actual
evidence of any bias or impartiality during trial. At
most, Johnson was denied the benefit of having the
same judge preside over his trial and sentencing. But
all judges are instructed to “approach a sentencing
hearing with an open mind and rely on meaningful
consideration of the evidence presented at the hearing,”
United States v. Pulley, 601 F.3d 660, 665 (7th Cir. 2010), and
there is no indication that Johnson was prejudiced at
his sentencing hearing because Judge Randa presided
instead of Judge Stadtmueller.6 Accordingly, Johnson’s
§ 455(b) argument fails because there was no clear error.
C. Aiding and Abetting Jury Instruction
Johnson next challenges the district court’s decision
to give an aiding and abetting jury instruction, arguing
that the government failed to produce sufficient
evidence at trial to support such an instruction. A
district court’s decision to give an aiding and abetting
instruction is reviewed for an abuse of discretion. United
States v. Powell, 652 F.3d 702, 708 (7th Cir. 2011). Under-
lying issues of law are reviewed de novo. Id.
Under 18 U.S.C. § 2(a), “[w]hoever commits an offense
against the United States or aids, abets, counsels, com-
mands, induces or procures its commission, is punishable
6
Johnson raises two arguments related to his sentencing
hearing which are addressed below.
No. 11-2690 27
as a principal.” In order to be considered an aider
and abettor, the defendant must “in some sort associate
himself with the venture, . . . participate in it as in some-
thing that he wishes to bring about, . . . [and] seek by
his action to make it succeed.” United States v. Pino-
Perez, 870 F.2d 1230, 1235 (7th Cir. 1989) (en banc) (quoting
United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)).
Put more simply, “[a]n aider and abettor is . . . one
who knowingly assists an illegal activity, wanting it to
succeed.” United States v. Colon, 549 F.3d 565, 571 (7th
Cir. 2008).
Pursuant to the government’s request and over
Johnson’s objection, the district court instructed the jury
as follows:
Any person who knowingly aids, counsels, com-
mands, induces or procures the commission of
an offense may be found guilty of that offense.
That person must knowingly associate with the
criminal activity, participate in the activity, and
try to make it succeed.
(Jury Inst. at 14.) Johnson does not challenge the content
of the district court’s instruction, which relies upon
the language of 18 U.S.C. § 2(a) and this court’s prece-
dent. Instead, Joh nson challenges the district
court’s decision to give this instruction in light of the
evidence presented at trial.
At the time Johnson was arrested, he admitted that
everything in the apartment belonged to him and
asserted that Simon was his supplier from Chicago.
During trial, Johnson changed his story and stated that
28 No. 11-2690
a man named Simon lived at and sold drugs from
the address on West Vliet Street. Johnson’s testimony
also revealed that he was aware of the quantity of
cocaine in the house as well as the location of the
cocaine, gun, and money recovered by police officers.
This evidence demonstrates that Johnson knew Simon
was selling drugs from the residence. Further, Johnson
knew the exact location and amount of drugs found in
the apartment, had more than $20,000 in cash, and kept
a firearm for protection. Johnson’s confession at the
police station also shows that Johnson had significant
knowledge about drug distribution. If, in fact, Simon
was selling drugs out of the residence, there is certainly
enough evidence to infer that Johnson knowingly
assisted Simon, wanting his activities to succeed. Based
on the evidence presented at trial, it was not an abuse
of discretion for the district court to give an aiding
and abetting jury instruction.
D. Obstruction of Justice Enhancement
Under Sentencing Guideline § 3C1.1, a sentencing
judge may increase a defendant’s offense level by two
levels if the defendant “willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction.”
U.S.S.G. § 3C1.1 (2010). This obstructive conduct must
be “related to (i) the defendant’s offense of conviction
and any relevant conduct; or (ii) a closely related of-
fense.” Id. At Johnson’s sentencing, Judge Randa deter-
No. 11-2690 29
mined that an obstruction of justice enhancement
applied because Johnson’s pretrial statements to authori-
ties were different from those offered at trial, to such
an extent that the differences could not be a result of
“mistake or faulty memory.” (Sent. Tr. at 6.) We review
a district court’s factual findings for clear error and
application of the sentencing guidelines de novo.
United States v. McCauley, 659 F.3d 645, 652 (7th Cir. 2011).
Johnson offers two arguments in favor of reversing
the sentencing judge’s decision to apply the § 3C1.1
enhancement. First, Johnson notes that Judge Randa
failed to identify a specific statement made by Johnson
at trial which was inconsistent with his post-arrest state-
ments. Second, Johnson argues that Judge Randa did
not make appropriate findings that he committed
perjury, as defined in 18 U.S.C. § 1621.
Section 3C1.1 identifies several examples of obstructive
conduct that warrant a two-level enhancement, in-
cluding “committing, suborning, or attempting to
suborn perjury.” U.S.S.G. § 3C1.1 cmt. n.4(B). A defendant
commits perjury if, while testifying under oath, he “gives
false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as
a result of confusion, mistake, or faulty memory.”
United States v. Dunnigan, 507 U.S. 87, 94 (1993) (citing
18 U.S.C. § 1621(1)). To apply the enhancement, a
district court should make findings as to false
testimony, materiality, and willful intent. United States v.
Johnson, 612 F.3d 889, 893 (7th Cir. 2010). Although it
is preferable for a district court to make separate
30 No. 11-2690
findings for each element, such findings “are not
strictly necessary so long as the court determined that
the defendant lied to the judge and jury about matters
crucial to the question of the defendant’s guilt.” Id.
(quoting United States v. White, 240 F.3d 656, 662 (7th
Cir. 2001)); accord Dunnigan, 507 U.S. at 95 (“The district
court’s determination that enhancement is required is
sufficient . . . [if] the court makes a finding of an obstruc-
tion of, or impediment to, justice that encompasses all
of the factual predicates for a finding of perjury.”).
In this case, the presentence investigation report (PSR)
applied the § 3C1.1 obstruction of justice enhance-
ment, relying on the defendant’s denial at trial that the
cocaine found in the residence belonged to him. During
sentencing, Judge Randa acknowledged that he did not
preside over the trial and then applied the following
analysis:
Relative to the obstruction of justice, the Court
is laboring under the same deficiencies—or at
least not deficiencies, but certainly not the same
position as the trial Judge relative to 3C1.1. And
that the analysis of the statements pretrial to
the authorities were different than at the trial.
The issue is whether or not there was sufficient
difference in the versions of post-arrest state-
ments and the trial testimony that resulted in the
application of this level of points under 3C1.1.
And the Court finds that its analysis suggests
that it’s appropriately applied. That the dif-
ferential in the substance of the statements
No. 11-2690 31
are great enough that they’re not a case of
mistake or faulty memory.
(Sent. Tr. at 6.) Later in the proceeding, the probation
officer asked Judge Randa to clarify if the court had
found that Johnson perjured himself. Judge Randa
stated in response:
I don’t know if I used those words directly, but
the Court did say that the two different versions
of the post-arrest statements and the ones given
at trial were so—not clearly a matter of mistake
or faulty memory. And so that would result in
that conclusion, yes.
Id. at 20.
Although Judge Randa did not specifically state which
of Johnson’s statements at trial amounted to perjury,
he did reference the inconsistencies between Johnson’s
post-arrest statements and trial testimony. At trial,
Johnson testified that the cocaine found in the apart-
ment belonged to Simon. In contrast, in his post-arrest
interview with police officers, Johnson admitted that
everything in the apartment was his. After hearing
all of the evidence, the jury concluded beyond a
reasonable doubt that Johnson possessed 50 grams or
more of crack cocaine. Further, the PSR’s basis for
applying the enhancement was Johnson’s trial testimony
that the cocaine did not belong to him. Judge Randa
certainly read the PSR and relied upon its findings at the
sentencing hearing. From all of this, we can conclude
that Judge Randa believed Johnson gave false testi-
mony concerning ownership of the drugs found in
the apartment.
32 No. 11-2690
Judge Randa’s ruling also satisfies the remaining
two elements of perjury. First, ownership of the drugs
found in the West Vliet apartment was certainly a
material matter at trial and “crucial to the question of
the defendant’s guilt.” Johnson, 612 F.3d at 893. Second,
Judge Randa noted that Johnson’s inconsistencies could
not have been the result of “mistake or faulty memory.”
(Sent. Tr. at 6.) In other words, Judge Randa made a
clear finding that Johnson’s statements were willful. We
believe Judge Randa’s analysis, although admittedly
lacking some degree of clarity, was sufficient to satisfy
our precedent and to find that the obstruction of
justice enhancement should apply to Johnson’s sentence.
E. Career Offender Status
Finally, Johnson challenges the sentencing judge’s
finding that he is a career offender under Sentencing
Guideline § 4B1.1. Under this section, a defendant con-
victed of a controlled substance offense who was at least
eighteen years old at the time is considered a career
offender if he “has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). For purposes of the career
offender enhancement, a “crime of violence” is defined as
any federal or state law offense punishable by imprison-
ment for at least one year that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
No. 11-2690 33
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
Id. § 4B1.2(a)(1)-(2). We apply a categorical approach
in determining if a prior conviction is a crime of
violence, focusing “not on the facts of the defendant’s
particular crime, but only on the fact of conviction and
the essential elements of the offense.” United States v.
Sonnenberg, 628 F.3d 361, 364 (7th Cir. 2010) (citing Begay
v. United States, 553 U.S. 137, 141 (2008)). If a statute
is divisible, i.e., the statute describes distinct modes of
committing the offense in which some conduct may
constitute a crime of violence while other conduct
does not, we apply a modified categorical approach. Id.
at 367. Under this approach, we may look to the
judicial record for the limited purpose of determining
under which part of the statute the defendant was
charged. Id. (quoting United States v. Woods, 576 F.3d 400,
406 (7th Cir. 2009)).
As noted previously, we review a district court’s ap-
plication of the sentencing guidelines de novo and
any factual findings for clear error. McCauley, 659 F.3d
at 652. In determining whether Johnson is a career of-
fender, the district court considered three of Johnson’s
prior felony convictions: aggravated robbery, aggravated
discharge of a firearm, and aggravated battery with
a firearm. Johnson acknowledges that his aggravated
robbery conviction qualifies as a crime of violence. Ac-
cordingly, if one of Johnson’s other convictions is
34 No. 11-2690
also considered a crime of violence, the district court
did not err in finding that Johnson is a career offender.
Johnson’s aggravated discharge of a firearm convic-
tion occurred in Illinois. Specifically, Johnson was con-
victed of “knowingly or intentionally . . . [d]ischarg[ing]
a firearm in the direction of another person or in the
direction of a vehicle he or she knows or reasonably
should know to be occupied by a person.” 720 ILCS § 5/24-
1.2(a)(2). Johnson argues that this conviction is not a
crime of violence because it does not satisfy § 4B1.2(a),
requiring one of the elements of the offense be “the
use, attempted use, or threatened use of physical force
against the person of another,” or the offense “other-
wise involves conduct that presents a serious potential
risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(1)-
(2).
Recently, this court addressed whether an Illinois
conviction for aggravated discharge of a firearm con-
stitutes a crime of violence in United States v. Curtis,
645 F.3d 937 (7th Cir. 2011). Applying the categorical
approach in Curtis, we held that discharging a firearm
“is unquestionably the use, attempted use, or threatened
use of physical force.” Id. at 940. Further, “[w]hen the
firearm’s discharge is in the direction of another
person or vehicle the shooter knows or reasonably
should know to be occupied . . . that use, attempted use,
or threatened use of physical force is ‘against the person
of another.’ ” Id. (quoting U.S.S.G. § 4B1.2(a)(1)). Thus,
the statute was not divisible and satisfied § 4B1.1(a)(1).
No. 11-2690 35
Johnson asks the court to revisit Curtis, arguing that
we failed to consider that 720 ILCS § 5/24-1.2(a)(2) may
be violated by negligence. We have previously held
that Sentencing Guideline § 4B1.1 does not apply to
crimes with a mens rea of negligence or recklessness. See
Woods, 576 F.3d at 408 (quoting United States v. Smith,
544 F.3d 781, 786 (7th Cir. 2008)). In support of his argu-
ment, Johnson relies upon the portion of the statute
which requires that the shooter “knows or reasonably
should know [the vehicle] to be occupied by a person.”
720 ILCS § 5/24-1.2(a)(2) (emphasis added). Because the
offense of aggravated discharge of a firearm may be
committed through negligence, Johnson argues, the
statute is divisible and includes acts that may not be
considered crimes of violence.
But even if Johnson’s argument prevails and we hold
that the statute is divisible, the indictment for Johnson’s
aggravated discharge of a firearm conviction alleges
that he “knowingly discharged a firearm in the direction
of another vehicle he knew to be occupied” (emphasis
added). Thus, applying the modified categorical
approach, Johnson was charged under the portion of the
statute which clearly satisfies § 4B1.2(a). Accord United
States v. Rice, 520 F.3d 811, 820-21 (7th Cir. 2008) (finding
that an Illinois conviction for aggravated discharge of a
firearm was a crime of violence, especially where “[t]he
charging document imposed an even higher standard, as
it charged that Rice knew the vehicle was occupied”).
Accordingly, the district court did not err in finding
that Johnson is a career offender, and we need not
address Johnson’s arguments as to his third prior con-
viction.
36 No. 11-2690
III. C ONCLUSION
For the foregoing reasons, Johnson’s conviction and
sentence are A FFIRMED.
5-24-12