The Honorable Tanya Walton Pratt, District Judge for the 

Southern District of Indiana, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1344

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIMMY BROWN,

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.

ARGUED DECEMBER 1, 2011—DECIDED DECEMBER 30, 2011

Before EASTERBROOK, Chief Judge, CUDAHY, Circuit

Judge, and PRATT, District Judge.



CUDAHY, 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
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 responded “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 insufficient to show understanding of Miranda rights. Brown

was later informed of his Miranda rights and interrogated 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, defendant’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 waistband. 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 interrogate 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 required 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 voluntarily 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, experience, 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 statements 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 corroborated 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 insufficiency 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 defendant’s argument that no rational jury could find

beyond a reasonable doubt that Brown knowingly possessed a firearm.

For the foregoing reasons, the judgment is AFFIRMED.

12-30-11