United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 5, 2021 

Decided January 27, 2021 

Before

DIANE S. SYKES, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 19-2762 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v. 

KENNETH R. MORRISON, 

Defendant-Appellant.

Appeal from the United States District 

Court for the Northern District of Indiana, 

Hammond Division. 

No. 2:17CR130-001 

Philip P. Simon, 

Judge. 

O R D E R

Kenneth Morrison dismantled an unused railroad bridge in Indiana and sold it 

as scrap metal in Illinois. A jury found him guilty of transporting stolen property in 

interstate commerce. 18 U.S.C. § 2314. The judge imposed a within-guidelines sentence

of 24 months in prison, followed by two years of supervised release, and ordered 

Morrison to pay restitution. Morrison appealed, but his appointed counsel asserts that 

the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 

(1967). Morrison has not responded to counsel’s motion. See CIR. R. 51(b). Because 

counsel’s analysis appears thorough, we limit our review to the subjects she discusses. 

See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). 

After an unsuccessful motion to dismiss the indictment, Morrison’s defense at 

trial focused on his knowledge of the bridge’s legal ownership. A 1987 deed from the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-2762 Page 2 

railroad company to the City of Hammond showed that the city owned the bridge. 

Morrison, who twice tried to buy the bridge from the city before he dismantled it,

maintained that the bridge had been abandoned, so he could lawfully remove it. To

support his defense, he pointed out that the city did not locate its letter acknowledging

receipt of the deed until after Morrison dismantled the bridge, and it did not record the 

deed until later. He also emphasized the bridge’s state of disrepair when he dismantled 

it. The jury rejected this defense. 

Counsel first considers whether Morrison could challenge the denial of his 

motion to dismiss the indictment and correctly concludes that any challenge would be 

frivolous. In that motion, Morrison argued that by not offering the grand jury evidence 

about the city’s shoddy recordkeeping regarding its letter acknowledging receipt of the 

deed, the government misled the grand jury into believing that the city owned the 

bridge. At best, this argument suggests that the grand jury received incomplete 

evidence, but that is not a ground for dismissal. See Bank of Nova Scotia v. United States, 

487 U.S. 250, 260–61 (1988). Moreover, by the time of the relevant testimony, the city 

had located the letter. Regardless, the jury’s guilty verdict—finding that Morrison stole 

the bridge’s metal (because he did not own it)—rendered harmless any omission of

evidence to the grand jury about the city’s recordkeeping. See United States v. Mechanik, 

475 U.S. 66, 70–71 (1986). 

Counsel also examines two other pretrial rulings but rightly concludes that 

contesting them would be pointless. First, the judge quashed, in part, a subpoena from 

Morrison for documents. Because the subpoena sought cumulative material and was 

served just ten days before trial, and nothing reasonably excused the belated service, 

Morrison could not plausibly argue that the judge abused his discretion. See United 

States v. Tokash, 282 F.3d 962, 967, 971 (7th Cir. 2002). Second, the judge denied 

Morrison’s motion for a bench trial. But the judge could not grant that motion because

the government did not consent to it. See United States v. Williams, 559 F.3d 607, 609 (7th 

Cir. 2009). 

Next, counsel explores whether Morrison could reasonably raise a claim of 

evidentiary error. The judge admitted evidence that Morrison did not have a permit to 

take down the bridge, lied to public officials and his workers about having permission 

to remove it, and damaged government property while doing so. Counsel properly

rejects a challenge to these rulings because this evidence was directly relevant to 

Morrison’s knowledge. The judge also admitted evidence of an email from Morrison 

suggesting that he knew the bridge was eligible for inclusion in the National Register of 
No. 19-2762 Page 3 

Historic Places. This email too was relevant to his knowledge that the bridge was 

neither abandoned nor his to dismantle. Under these circumstances, counsel could not 

raise a plausible argument that the judge was wrong to admit this evidence. 

See United States v. Gorman, 613 F.3d 711, 717, 720–21 (7th Cir. 2010). 

Counsel weighs whether Morrison could argue that he was deprived of his right 

to testify on his own behalf. This argument, too, would be doomed to fail because he 

unequivocally waived his right to testify. See United States v. Jones, 844 F.3d 636, 645–46 

(7th Cir. 2016). Morrison initially told the judge that he wanted to testify, but he 

changed his mind after other witnesses had done so and expressly acknowledged under 

oath that he changed his position. 

Counsel next considers whether Morrison could challenge the jury instructions 

but correctly concludes that the only preserved argument would be frivolous. During 

the jury-instruction conference, Morrison unsuccessfully objected to a knowledge 

instruction given in the disjunctive—it said that the government had to prove his 

knowledge that the scrap metal was “stolen, converted, or taken by fraud.” Morrison

argued that the instruction constructively amended the indictment, which charged him 

in the conjunctive. But the instruction was not an impermissible variance; the grand jury 

found probable cause for each of the three alternatives. See United States v. Jones, 418 F.3d 

726, 729–30 (7th Cir. 2005). Counsel correctly concludes that Morrison waived any other 

challenge to the instructions. 

Next, counsel explores whether Morrison could challenge the sufficiency of the 

evidence. Morrison informed counsel that he would like to argue that the railroad’s

deed to the city did not convey ownership because the railroad needed permission from 

the Interstate Commerce Commission to transfer its property. But counsel correctly 

concludes that this argument is frivolous. As the judge instructed the jury, the 

government needed to prove that Morrison knew he was depriving “the owner” of the 

property. See United States v. Natour, 700 F.3d 962, 970 (7th Cir. 2012). Here, ample

evidence supported the jury’s verdict that Morrison knew that “the owner” of the 

bridge was not him. See United States v. Maldonado, 893 F.3d 480, 484–85 (7th Cir. 2018). 

He tried to buy it from the city twice; he would not have attempted such a purchase if 

he thought himself the owner. He also told government officials, in referring to the 

bridge, that he knew that taking stolen property across state lines was illegal—another 

admission from which the jury could find that Morrison knew someone else owned the 

bridge. 
No. 19-2762 Page 4 

Counsel also considers whether Morrison could raise any non-frivolous 

challenge to the calculation of his imprisonment range under the Sentencing Guidelines. 

But as counsel explains, the judge properly used § 2B1.5(a) to determine Morrison’s 

base offense level because the case involved theft of a cultural heritage resource, 

defined in part as a historic structure eligible for inclusion on the National Register. See 

U.S.S.G. § 2B1.5, App. Note 1(A)(i) (referencing 54 U.S.C. § 300308 and 36 C.F.R. § 

800.16(l)). Unrebutted testimony from a representative from the Indiana Division of 

Historic Preservation and Archaeology showed that the agency found the bridge 

eligible for inclusion on the Register in 2008 and again in 2013. And though Morrison 

would like to challenge enhancements for the value of the bridge ($54,000) and for 

committing the offense for pecuniary gain, he did not contest the value of the bridge at 

sentencing, and he sold the metal as scrap for money, obviously a pecuniary gain. 

Counsel also explores challenging the substantive reasonableness of Morrison’s 

sentence and properly concludes that doing so would be frivolous. We may presume 

that his sentence within the guidelines range is reasonable. See Rita v. United States, 

551 U.S. 338, 347 (2007). Nothing in the record rebuts that presumption. And his counsel 

expressly agreed that the judge addressed all his argument in mitigation, waiving any 

appellate challenge to the adequacy of the judge’s explanation. See United States v. 

Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013). 

Finally, counsel questions whether Morrison could make a nonfrivolous 

argument that his trial counsel was ineffective. That argument, however, is better saved 

for collateral review. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); United 

States v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020). 

We GRANT counsel’s motion to withdraw and DISMISS the appeal.