In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3172

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES HUMPHREYS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 480—John W. Darrah, Judge.

____________

ARGUED SEPTEMBER 12, 2006—DECIDED NOVEMBER 21, 2006

____________

Before COFFEY, ROVNER, and EVANS, Circuit Judges.

COFFEY, Circuit Judge. James Humphreys was convicted

after a jury trial of possession of a firearm by a felon. See 18

U.S.C. § 922(g)(1). The district court found that he had

three prior felony convictions for violent crimes and sentenced him to fifteen and one half years’ imprisonment

under the Armed Career Criminal Act (“ACCA”). See 18

U.S.C. § 924(e)(1). On appeal Humphreys challenges his

conviction and sentence on three grounds and alleges that:

(1) the evidence at trial was insufficient to establish that

the firearm he possessed had traveled in interstate commerce; (2) the indictment failed to adequately allege a

nexus with interstate commerce; and (3) the district court

relied on inadequate evidence in ruling that one of his prior
2 No. 05-3172

convictions was a “violent felony” for purposes of the ACCA.

We affirm.

I. Background

On December 9, 2002, Humphreys—who was a truck

driver for the Shawn Trimble Trucking Company located in

Chicago, Illinois—was dispatched by Shawn Trimble for a

pick-up and delivery, but he failed to pick up his assigned

load and never made any delivery. Trimble was unable to

reach him by telephone the next day, and thus he reported

that his truck had been stolen to the Chicago Police Department. When Trimble finally reached Humphreys by telephone on December 11th, Humphreys claimed the truck

was hijacked, and he was forced to witness a murder.

Humphreys added that the hijackers made him handle the

gun used in the murder so it would have his fingerprints on

it, and then left the gun with him.

Trimble asked Humphreys to return the truck, and he

agreed to do so. But Trimble instructed another employee

to call the police as soon as Humphreys arrived. When he

arrived, Trimble asked to see the gun, and Humphreys took

it out of a duffle bag and showed it to him. At this time,

Trimble suggested to Humphreys that he place the gun

back in his duffel bag. A few minutes later, two police

officers arrived and took Humphreys into custody. The

officers conducted a custodial search of Humphreys’s duffel

bag and found the gun.

The parties stipulated that Humphreys was previously

convicted of a felony. At trial the government called Trimble

and the two police officers to testify that Humphreys

possessed the gun. The government also presented Michael

Casey, a special agent with the Bureau of Alcohol, Tobacco,

Firearms and Explosives, as an expert witness to testify to

the existence of a commerce nexus. To support his qualification as an expert, Casey testified that he was trained in
No. 05-3172 3

firearms identification and had identified between 1,500

and 2,000 firearms in his 25 years as a law enforcement

officer. Humphreys failed to object when the district court

qualified Casey as an expert witness.

Casey testified that the gun found in Humphreys’s bag

was manufactured by the High Standard Manufacturing

Corporation in Hamden, Connecticut, and thus, in his

opinion, had traveled in interstate commerce. When the

government asked Casey for the basis of his opinion, he

explained that he could identify the gun’s manufacturer

“based on its stampings.” The barrel of the gun was

stamped with the words “High Standard Mfg. Corp.

Hamden, Conn. USA.” Casey also said he conducted

research to “verify” that High Standard did manufacture

firearms of that type but had never done so in the state

of Illinois. On cross-examination, Casey acknowledged

that he never attempted to trace the serial number of the

gun, but he was not asked why and did not volunteer an

explanation. The jury returned a verdict of guilty.

In preparing the presentence report, the probation officer determined that Humphreys was subject to an enhanced

sentence under the ACCA, based on his prior convictions for

bank robbery, armed robbery, and aggravated battery.

Humphreys responded with a written sentencing memorandum in which he conceded that the two robbery convictions

do count as violent felonies, see 18 U.S.C. § 924(e)(2)(B), but

argued that the third predicate conviction—for aggravated

battery on a public way, see 720 ILCS 5/12-4(b)(8)—did not

qualify because the Illinois statute could be satisfied in a

way that did not require the use of force. The district court

concluded after reviewing the charging information and

transcripts from the state-court proceedings that the

commission of the aggravated battery involved “striking the

victim,” which qualifies as a “use . . . of physical force

against the person of another” and falls within the parameters of the first prong of the ACCA’s definition of “violent
4 No. 05-3172

felony.” See 18 U.S.C. § 924(e)(2)(B)(I). The court applied a

base offense level of 33, see U.S.S.G. § 4B1.4(b)(3)(B),

against a criminal history category of IV, see id.

§ 4B1.4(c)(3), and arrived at a Sentencing Guidelines

imprisonment range of 188 to 235 months. In selecting a

sentence in that range, the court identified two factors that

somewhat mitigated Humphreys’s “significant criminal

history:” his most recent conviction, the aggravated battery,

occurred more than three years before his current offense,

and he committed the aggravated battery “at least in part”

because he believed he was “defending someone else.” The

court decided that a sentence at the “lowest end of the

guidelines would be appropriate to meet the ends of the

statute,” and sentenced Humphreys to 188 months’ imprisonment and five years’ supervised release.

II. Analysis

A. Sufficiency of the Evidence

Humphreys argues that the government failed to meet its

burden on the commerce element of § 922(g) because, in his

view, the evidence established only that the barrel of the

gun had traveled in interstate commerce. He argues that

the barrel cannot alone satisfy the statutory requirement,

and that because barrels are interchangeable, nothing

about the origin of the rest of the gun may fairly be inferred.

We refuse to accept Humphreys’s very speculative and

self-serving interpretation of the evidence. The expert

testified that the gun—and not just the barrel—traveled

in interstate commerce. The expert stated that the weapon was manufactured in Hamden, Connecticut by a company that had never manufactured any weapon in the state

of Illinois. He also stated that the gun was not a counterfeit

weapon. Thus, there was no need for the jury to rely on any

assumption in concluding that the gun had traveled in
No. 05-3172 5

interstate commerce, since “[t]he requisite interstate

commerce nexus can be established . . . merely by evidence

that the gun was manufactured outside the state in which

it was possessed.” United States v. Coleman, 22 F.3d 126,

130-31 (7th Cir. 1994); see also United States v. Van Sach,

458 F.3d 694, 703 (7th Cir. 2006) (required commerce nexus

existed where gun was manufactured in Montana and

possessed in Illinois); United States v. Williams, 403 F.3d

1188, 1195 (10th Cir. 2005) (testimony that a gun manufactured in California and possessed in Kansas was sufficient

to establish commerce nexus); United States v. Scott, 263

F.3d 1270, 1274 (11th Cir. 2001) (per curiam) (same where

gun was manufactured in California and possessed in

Georgia); United States v. Bradley, 145 F.3d 889, 893 (7th

Cir. 1998) (likewise where a gun expert testified that gun

was manufactured outside of the state where it was possessed).

Essentially, Humphreys argues that there is insufficient evidence to support his conviction because he

speculates that the jury could not rule out that part of the

gun may have been manufactured in Illinois. But in

reviewing the sufficiency of the evidence presented at

trial, we view the evidence “in the light most favorable to

the government,” and ask whether “any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Maholias, 985 F.2d

869, 874 (7th Cir. 1993). “[A]lternative explanations alone,

even if plausible, do not ordinarily overcome the defendant’s

burden in challenging the sufficiency of the evidence.”

United States v. Romero, 57 F.3d 565, 570 (7th Cir. 1995).

This is because “the law does not require the government to

disprove every conceivable hypothesis of innocence in order

to sustain a conviction on an indictment proved beyond a

reasonable doubt.” United States v. Townsend, 924 F.2d

1385, 1389 (7th Cir. 1991) (emphasis in original).

Humphreys had ample opportunity via the means of an
6 No. 05-3172

exhaustive cross-examination to test his hypothesis that the

entire gun did not travel in interstate commerce, and we

refuse to allow Humphreys to prevail on appeal on the basis

of an impeachment theory he failed to test in the trial court.

Humphreys also proposes that the government’s failure

to trace the serial number undermined the evidence that

the weapon was manufactured in Connecticut. But as the

authority he cites indicates, see 2 Wigmore on Evidence

§ 285 (Chadbourn rev. 1979); see also United States

v. Tucker, 552 F.2d 202, 210 (7th Cir. 1977), the

nonproduction of evidence that normally would have

been produced merely permits an inference that such

evidence would be unfavorable to the producing party,

but that inference is not compelled. Humphreys complains that the expert never explained why he failed to

trace the serial number, but the expert was never asked

why, by either the prosecution or defense counsel. Nor is it

the obligation of the judge who is presumed to be impartial

and must conduct himself or herself in that manner.

Humphreys points to no case in which a court has overturned a conviction under § 922(g) simply because

the government failed to have the serial number traced, and

we could find none. The only relevant case we found, in fact,

rejected a suggestion that an expert’s testimony is deficient

if he does not “rely on the markings on the firearm,”

including the serial number. See United States v. Corey, 207

F.3d 84, 90-91 (1st Cir. 2000).

B. Inadequacy of the Indictment

Humphreys next claims that the indictment was inadequate with respect to the commerce element. But since its

allegation that “the firearm had traveled in interstate

commerce prior to the defendant’s possession of the firearm”

is at the heart of the issue raised and nothing else

is required, see United States v. Hubbard, 61 F.3d 1261,

1269 (7th Cir. 1995); United States v. McCarty, 862 F.2d
No. 05-3172 7

143, 145-46 (7th Cir. 1988), we conclude, and Humphreys

acknowledges, that he is really challenging the constitutionality of § 922(g)(1) as applied to him.

In Humphreys’s view, “recent Supreme Court precedent”

demands that § 922(g) be interpreted to require a “substantial effect” on commerce rather than the “minimal” nexus

we have considered constitutionally sufficient. That argument, however, is one that we have repeatedly rejected. See

Van Sach, 458 F.3d at 703; United States v. Williams, 410

F.3d 397, 400 (7th Cir. 2005), cert. denied, 126 S.Ct. 1182

(2006); United States v. Peterson, 236 F.3d 848, 852 (7th

Cir. 2001). Because § 922(g)(1) “requires proof that the

defendant possessed a firearm ‘in or affecting commerce,’

[it] represents a valid exercise of congressional authority

under the Commerce Clause.” Williams, 410 F.3d at 400.

C. Violent Felony under the ACCA

Humphreys also contends that even if his conviction

can be sustained, his sentence must be vacated because the

district court erred in finding that his aggravated battery

conviction is a violent felony for purposes of the ACCA. He

contends that under the Illinois statute aggravated battery

may be nonviolent, and that the only “legitimate” items of

evidence for proving that his particular conviction involved

violence are inadequate under Shepard v. United States,

544 U.S. 13, 16 (2005). Shepard holds that a court should

look to the statutory elements, charging documents, and

judicial findings of fact to determine whether a previous

conviction was for a violent felony. Id. at 16. In this case,

Humphreys argues that the charging information and the

state judge’s findings of fact are too “ambiguous” to support

the district court’s finding that his conviction for aggravated

battery involved violence.

Whether an aggravated battery under the Illinois statute

may in some cases be nonviolent—and that contention
8 No. 05-3172

is under some doubt given statements in our previous

decisions, see United States v. Thigpen, 456 F.3d 766, 770

(7th Cir. 2006) (“[U]nder Illinois law, aggravated battery

involves the use or threatened use of force against another person and . . . also meets the requirements for a

crime of violence.”); United States v. Wallace, 326 F.3d 881,

886 (7th Cir. 2003) (“On appeal, Wallace concedes that

aggravated battery and second-degree murder qualify as

violent felonies . . . .”); United States v. Morales, 902 F.2d

604, 605 (7th Cir. 1990) (noting that defendant “had four

previous convictions—one for rape, one for attempted

rape, and two for aggravated battery, and these are all

violent felonies”)—we find that in this case, it was violent.

The charging information states that “James Humphries

[sic] and Diane Battle struck Warren Cook in the head with

a gun, while they were on or about a public way.” This

adequately demonstrates that the conviction involved the

use of force, and therefore satisfies the ACCA’s first alternative definition of “violent felony.” See 18 U.S.C.

§ 924(e)(2)(B)(I).

Humphreys argues that he was not the sole defendant

and that it cannot be determined whether he personally

engaged in any violent conduct under the charging information alone. But Humphreys and his co-defendant were both

charged with striking Cook with a gun, and under Illinois

law, Humphreys could have been convicted of the offense as

a principal or as an aider or abettor to his co-defendant. 720

Ill. Comp. Stat. § 5/5-2(c); see also Brumley v. DeTella, 83

F.3d 856, 862-63 (7th Cir. 1996). When considering the

totality of the evidence produced at trial and the charging

information, we are convinced that the judge concluded that

Humphreys played one role or the other when he convicted

Humphreys of aggravated battery, and this court has held

that a conviction for aiding and abetting in the crime may

constitute a violent felony under the ACCA. See United

States v. Groce, 999 F.2d 1189, 1191-92 (7th Cir. 1993). We
No. 05-3172 9

have no doubt that it was proper pursuant to the statute for

the sentencing judge to construe Humphreys’s conviction for

aggravated battery under Illinois law as a violent felony

under the ACCA.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-21-06