### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 3

- 2709
W ALTER D. H ILL , Plaintiff

- Appell ant ,

v.
J OSEPH R. M URPHY , Special Agent, individually, et al. , Defendant s

- Appell ees

.

____________________ Appeal from t he United States District Court for the Southern District of Illinois

. No. 11 C 172

— Michael J. Reagan , Chief Judge

.

____________________
S UBMITTED M ARCH 12, 2015

— D ECIDED M AY 4, 2015

____________________

Before P OSNER , E ASTERBROOK , and T INDER , Circuit Judges

. P OS NER , Circuit Judge

. In Heck v. Humphrey , 512 U.S. 477 , 4 8 7 (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 i nvestigation or prosecution of the criminal charge , if “a jud g-2 No. 13

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ment in favor of the plaintiff [ in the civil suit] would nece ssarily imply the invalidity of his conviction or se n tence. ” The district judge held that a judgment in Hill’s favor would, and so dismissed Hill’s suit (a Bivens action) , precip i tating this a p peal.
Hill had pleaded guilty in t he criminal case to attempted

e x tortion , in violation of 18 U.S.C. § 1951 , and to making a false statement to federal investigators concerning his exto rtionate activities , in violation of 18 U.S.C. § 1001(a)(2). ( He was the Deputy Liquor Commissioner of Ea st St. Louis, Ill inois, and was alleged to have extorted bribes from liquor l icensees.) He was sentenced to 60 months in prison. We a ffirmed the judgment in Uni t ed 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 be fore he was indicted and had gotten him to make damaging a dmissions

. In this civil suit for damages he claims that the d efendants forced their way into his house with drawn wea pons, search ed the house, seized and kept his lawfully owned handgun, and twirled a loaded gun in “John Wayne” fas hion, 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 b eing questioned he felt disor i ented, 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 su f fered a stroke. He was “under the gun, literally,” he say s, and “felt pressured and under duress” to answer the defendants’ questions. We a c cept these allegations as true for purposes of this appeal.No. 13

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He argues that by detaining him against his will, searc hing his home, and seizing his gun , all without his consen t, plus using e x cessive force, ignoring his medical needs, and coercing him to answer their questions, the defendants vi olated his Fourth Amendment right to be free from an unre asonable search and seizure and his Fifth Amendment right to due process of law

. His specific Fourth Amendment claims are illegal en try, unlawful detention , unlawful sei zure of a gun o f which he was the lawful owner, deliberate indifference to his med i cal needs , and use of excessive force. These claims were pro p e rly brought under the Fourth Amendment because the inj uries complained of were inflicted before there had been a j udicial 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 concern s three statements that he made to the off i cers

— statements that he alleges were extracted from him by the tactics of intimidation described above . The stat e men t s are his denial to the officers that he had sent a bagman to coll ect bribes for him (this lie was the basis of the false

- statement charge against him); his admi ssion mi n utes later that the denial was indeed a lie; and his acknowledging that the mayor, who doubled as the Li q uor Commissioner of East St. Louis (the plainti ff was as we no ted the Deputy Liquor Commissioner), had failed to exe r cise proper super vision over him, a failure that facilitated his bribe ta k ing

. The Fourth Amendment claims that we have listed are not barred by the principle of Heck v. Hu m phrey (such c laims rarely are, see Wallace v. City of Chic a go , 440 F.3d 421 , 426

– 284 No. 13

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(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. Cou n ty 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 just i fication, waved a loaded gun in his face, and so

o n, these outrages , constituting violation s of his Fourth Amendment right not to be subjected to an unreasonable search and seizure, would entitle him to damages for phys ical and psychological injury resulting from the search and seizure and for the expropr iation 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 stat ement an d attempted

- extortion charges that were the only grounds of his convi c tion s

. One of Hill’s due pr ocess 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 mak ing a false statement to the officers . The point was not that he was coerced to lie; doub tless 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 f alse statement to the government. But had he not been c o erced to speak, and as a result had remained silent , or (perhaps in r esponse to noncoercive questioning, told the truth), he could not have been convicted of making a false statement . Ther efore proof in this civil case that the convi c tion was based on a violation of his constitutional rights would be inconsistent with the co n viction and so is barred by Heck

.No. 13

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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 stat ement. 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 jud ge 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 co n sider 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 vio lates the Fourth Amendment “right of the people to be secure in their pe r sons ... against unreasonable searches and seizures”)

— a claim u n related to the truth or falsity of the statement

— is very different from a Fifth Amen d ment self

- incrimination claim based on the use of the statement to convict him of making a false statement. The first claim , a Fourth Amen dment exce s sive

- 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 unpro b lematic; a self

incrimination claim, in contrast , would be deeply proble m a tic , as we’re about to see.
But th e fact that Hill admitted the lie

— the admission b eing his se c ond statement

— along with the further fact that he admitted that the mayor hadn’t s u pervised him effectively (the third stat e ment), were not grounds for the false

statement charge: ne i ther telling the truth nor committing extortion is making a false statement

. T he li e was the false

-6 No. 13

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statement crime of which he was convicted; the admi s sion was merely evidence of the lie , and as explained in Heck “ a suit for damages attributable to an allegedly u n reasonable search may [be maintained] even if the challenged search produced ev i dence that was introduced in a state criminal trial that resulted in the plaintiff ’ s still

- outstanding convi ction. Becau se of doctrines like independent source and inev itable discovery , and esp e cially harmless error, such a § 1983 action , even if successful, would not ne c essarily imply that the plai ntiff ’ s conviction was unlawful

. ” Heck v. Hu m phrey, supra , 512 U.S. at 487 n

. 7 (emphasis in orig i nal and citations omitted ) ; s ee 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 ev idence, even wit h out Hill ’ s confes sion , to prove that he had lied

— it had video and audio surveillance of his bagman co llecting payments on his behalf. The use against Hill of his admi s sion of having lied (the use consisting of including the statement in the stipul a tion of facts as a factua l basis for the plea

— had Hill’s stat e ments never been “used” against him he wouldn’t have a Fifth Amendment claim, Chavez v. Ma rt i nez , 538 U.S. 760, 767 (2003)) was thus a har m less error.
The same is true of Hill ’ s stat e ment about the ab sence of mayor al ov ersight, which earned him a n increase in his se ntence for being a “public official in a high

- level decisi on

making or sensitive posi tion. ” U.S.S.G. § 2C1.1(b)(3) . T he a bsence of oversight amounted to a de facto delegation of

ma y oral a u thority to him; his s tatement that “the [m]ayor does not really know what he is doing in reference to liquor l i censes” revealed that Hill occupied a high

- level decision

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making posi tion. Other evidence pointed in the same dire ction . Hill and the mayor had been fr iends since col lege; Hill stood in for the mayor at public events; and the mayor had created the position of Deputy Liquor Commi s sion just for Hill. United States v. Hill, supra , 645 F.3d at 907. The prese ntence report , moreover, reveals that local business owners provid ed statements to the go v ernment about the extent of Hill ’ s authority . O ne of the statements was that the mayor had “ referred [the business owner in question] to Hill, whom [the mayor] identified as the ind i vidual who could renew [the business owner’s] liqu or l i cense.” 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 r esponse to the question whether he had sent a bagman to co llect bribes from li q uor licensees was not only a ground but the ground of his co n viction for making a false statement. As we noted earlier, had he remained silent

— made no stat ement

— he c ould not have been convicted of making a false
statement

. That makes this case lik e Okoro v. Ca l laghan , 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 ] a re necessarily inconsistent with the validity of the convi c tion .” Now one might be inclined to think that a lie is a lie; if the officers had asked Hill politely whether he used a ba gman, he would have lied and been convicted; how then could the use of for ce have affected the outcome of his cri minal 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

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but instead he might have lied in terror

— he might have feared that if he admitted using a bagman, the officers, co nvinced now of his guilt, would really have beat en him up. Had they asked him politely he might have ‘fessed up to his use of a bagman, as indeed he did shortly afte r ward. We can make this point a little clearer by refe r ence to the venerab le 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 e x plained, “ 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 den ial 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 j ury ’ s verdict reflects a determination that peti tioner’ s false statement was knowingly and willfully made. This n e gates any claim that petitioner did not know the falsity of h is statement at the time it was made, or that it was the product of an accident, honest inadver tence, or duress”; s ee 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 r efle x , 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 co nsequence

— a challenge in the civil proceeding to the correc tness of his convi ction of maki n g 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 hi mself , lying would have been his only recourse to avoid fu rther brutalization

.No. 13

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A gainst concludin g 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 convi c tion, 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 co llaterally attacked

. United States v. Broce , 488 U.S. 563 , 574 (1989) ; Co n nors v. Graves , 538 F.3d 373, 378 (5th Cir. 2008)

. Alt hough rarely is not never

— see United States v. Broce , s upra , 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 exce ptions authorized by those cases are not applicable t o this

case. But the Supreme Court in Heck was concerned not only with li m iting collateral attacks on criminal judgment s , but also with the unseemliness of co n flicting judicial outcomes, see 512 U.S. at 484

– 85 , as when “ a judgment in favor of the plaintif f [in his civil suit] would necessarily imply the inv alidity of his con viction or sentence; if it would, the co m plaint must be dismissed unless the plaintiff can demo n strate that the conviction or sentence has already been inva l idated. But if the district cour t determines that the plaintiff’ s action, even if success ful, will not demonstrate the inv a lidity of any outstanding criminal judgment against the plaintiff, the a ction should be allowed to proceed.” Id

. at 487 (emph a sis in orig i nal). “Imply” is not sy nonymous with “invalidate.” A jud gment in favor of Hill’s claim in this civil suit that his convi ction of making a false statement was unconstitutional b ecause it rested on police coercion would not invalidate the10 No. 13

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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 u n justly convicted and
sentence d but was forbidden to obtain relief on the ba sis of that finding. It would thus enable him to indict the legal cu lture. 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 d e nial of a fair criminal trial may be brought only after the conviction is set aside. Othe rwise, that civil claim would imply the invalidity of the ou tstanding conviction and would thus co n stitute a collateral attack on the conviction through an i m permissible route .” It would not be a c ollateral attack in the literal sense, because a judgment in favor of the plaintiff would not invalidate his conviction . B ut the implication of invalidity would be enough to establish the impropriety of the civil suit

. Hill thus can’t be permitted in his c ivil 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 phys i cal or mental) for whi ch tort damages can be awarded. All that matters, in short, is that Hill be forbidden to a ssert on remand that the statement on which his convi c tion of

ma k ing a false statement to the government was predicated was coerced, for if it was coerced then an element of his co nviction 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, c oerced or otherwise

— that their report of the inte r view is an attempt, tha t worked, to frame him for a false

- statementNo. 13

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crime that he did not co m mit. To allow him to present that argument in this civil case would be an even clearer viol ation of Heck .)
We are not suggesting that there is a privilege to lie in r esponse to an improp er 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 Govern ment’ s right to ask que s tions

— lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with i m punity knowingly and willfully answer with a fals e hood." Bryson v. United States , supra , 396 U.S. at 72; s ee also United S tates 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 convi c tion under 18 U.S.C . § 1001 (the ground of Hill’s false

- statement convi ction as well ) merely because “it places a ‘cornered suspect’ in the ‘cruel trilemma’ of admitting guilt, remaining silent, or falsely d e nying guilt.” But this is not a case in which the government “shoul d not have asked” the critical question (the question whether Hill used a ba g man). There would have been nothing wrong with the go v ernment ’s asking him that question. The wrong lay in beating or terrorizing him into answering. “ The use of coerced confessio ns, whether true or false, is forbidden b ecause the method used to extract them offe nds constitutional principles.” Lego v. Twomey , 404 U.S. 477, 624 (1972); see also Colorado v. Connelly, 479 U.S. 157, 163 (1986); Brown v. Missi s-12 No. 13

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sippi , 297 U.S. 278, 286 ( 1936) (“t he rack and torture chamber may not be subst ituted 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 o f making a false statement to the go v ernment. But as far as anyone can know, had they said that , he would not have a n swered the ques tion at all

— in other words , he would have said not hing

— or he might even have answered it truthfully ; but in either case he c ould not have been convicted of making a false stat e ment. W ere he allowed to prove this in this civil suit, he would be denying the validity of his convi c tion . And that Heck forbids. For completeness we note that while we have characte rized Hill’s claims r egarding 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 E v ans v. Poskon , 603 F.3d 362, 364 (7th Cir. 2010), in which the defendant was convicted of attempted murder and resisting a r rest , we said that

a fourth

- amendment claim can coexist [that is, without vi olating 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 e ffect 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 su rgeries and bone grafts. He also contends that his vision has been permanently impaired. These are not normal cons equences of arrest.) Proposition (1) is i n compatible with hisNo. 13

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conviction; any proceedings based on th is contention must be stayed or dismissed under Wallace [ v. Kato ] or Heck . But propositions (2) and (3) are entirely consistent with a co nviction 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 a spects of the suit can proceed. Evans’s first contention, like Hill’s first, implicitly challenged his conviction; his second and thi rd 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 convi ctions rested comfortably on evidence unrelated to his second and third co n tentions.
Wallace v. City of Chicago , supra , which emphasizes that most Fourth Amendment claims survive Heck , thus coexists with Evans v. Poskon , s u pra , which points out that a few do not. We remarked that coexistence in Pa r ish v. City of Elk hart , 614 F.3d 677, 681

– 82 (7th Cir. 2010); see also Wa l den 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 t hat his false statement to the officers was coerced. T he district court’s ju dgment (which dismissed the entire suit) is therefore affirmed in part and reversed and r e man ded in part

.14 No. 13

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E ASTERBROOK , 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 b etween 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 Ame ndment theory) in the fact that Hill lied in r esponse 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 conv iction 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 false hood, knowing it to be false and knowing that his aud ience 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

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The law has ways to r esist wrongful coercion to speak, but lying is not among them. “ [O]ur cases have consisten tly

— indeed without exception

— allowed [criminal] sanctions for false statements or perjury; they have done so even in i nstances 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 (19 66); Kay v. United States , 303 U.S. 1 (1938); United States v. Kapp , 302 U.S. 214 (1937). ” United States v. Ma ndujano , 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 agains t 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

a ny 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 fo rbidden to ask about their political affiliations; they conten ded, rather, that the government was forbidden to coerce them to answer, and that because the coercion violated the Constitution they were entitled to give fal se answers. The Court rejected that contention, as it has also rejected the co ntention that a witness wrongly threate ne d with impriso nment for remaining si lent (a threat that violates the Self

Incrimination Clause) may respond to the threat by lying.16 No. 13

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I n Kn ox the Court sustained a conviction for violating §1001 by filing a false wagering

- tax return, even though it had earlier held that the statut e requiring such a return vi olated the Self

- Incrimination Clause. That statute made s ilence a crime. P eople who ha d gambling income were c oerced 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 silenc e, 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 unconstit utional threats of imprisonment and unconstitutional threats of force. But my colleague s 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 major ity cites Okoro v. Calla g han , 324 F.3d 488, 490 (7th Cir. 2003), and McCann v. Neils e n , 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. Ba iley , 444 U.S. 394 (1980), which my colleagues do not cite,No. 13

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does address that question

— for a “necess ity” 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 con tend 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 te lling the truth, so under Bailey he could not have prevailed on a de fense 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 sc otches any contention

— which Hill himself does not advance

— that the interrogators compelled him to lie .)
Hill does no t contend that he was under duress. The d efendants likewise do not maintain that Hill’s theories imply (or even could imply) that the §1001 conviction is invalid b ecause 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 suppor ted 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
t he parties; this case illustrates them. The majority’s ungui ded 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 w ill have an open mind when, in some future case, these subjects matter and the litigants join issue

.