United States v. Nehemiah Felders ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2867
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NEHEMIAH R. FELDERS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:18CR109-001 — Robert L. Miller, Jr., Judge.
____________________
ARGUED JULY 7, 2020 — DECIDED JULY 14, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
PER CURIAM. A jury convicted Nehemiah Felders of pos-
sessing a firearm, despite a felony conviction making this
unlawful. 18 U.S.C. §922(g)(1). He was sentenced to 96
months’ imprisonment. His sole argument on appeal is his
statements should have been suppressed, because the police
did not give him the warnings required by Miranda v. Arizo-
na, 384 U.S. 436 (1966).
2 No. 19-2867
Felders testified at a hearing that the police had not given
him warnings of any kind. Officer Jonathan Price testified, to
the contrary, that he had taken from his credential case a
card with warnings and read Felders the advice on that card.
The district judge believed Price and disbelieved Felders,
which led him to deny the motion to suppress the statements
that Felders made to Price and other officers.
In this court Felders no longer denies that Price read him
warnings from a card. Instead he contends that the record
does not show that the statements read from the card satisfy
Miranda. Because Felders did not make such an argument to
the district court, appellate review is for plain error. See
United States v. Olano, 507 U.S. 725 (1993).
Yet the record is silent about what was on the card from
which Price read. Felders has the burden of persuasion, id. at
734–35, and on a silent record he cannot show that any error
occurred—not when the warnings were read, not in the dis-
trict court. The judge was available to hear the parties’ evi-
dence. That Felders did not ask Price for details does not
show that the judge made a mistake. Someone who invokes
plain-error review on a silent record has lifle chance of suc-
cess. See, e.g., United States v. Williams, 946 F.3d 968 (7th Cir.
2020); United States v. Ramirez, 606 F.3d 396 (7th Cir. 2010).
The district judge could have avoided the argument now
presented on appeal by asking Price to read the card aloud,
but the absence of this information cuts against Felders giv-
en the plain-error burden.
To get anywhere, Felders needed to show what was on
the card. Asking Price to read it, or produce a copy, would
have been one way to do that. Asking the police to produce a
copy would have been another. At trial Price testified that
No. 19-2867 3
the state police issued the card he used, so it was an official
document. Felders does not contend that the state distribut-
ed some cards that satisfy Miranda and some that do not.
Nor does he contend that someone else, such as The Onion,
has produced wallet cards purporting to be from the state
police but containing doctored warnings. Evidence that the
card in Price’s possession could have been defective or satir-
ical might have persuaded us to remand for a hearing. But
we are not aware of any reason to believe that Indiana, or
any other state, distributes warning cards that fail to satisfy
the Supreme Court’s requirements.
AFFIRMED