In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1258

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW HAYES,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 CR 173--J.P. Stadtmueller, Chief Judge.


ARGUED SEPTEMBER 14, 2000--DECIDED JANUARY 11, 2001




  Before ROVNER, DIANE P. WOOD, and EVANS, Circuit
Judges.

  ROVNER, Circuit Judge. A grand jury indicted
Matthew Hayes on one count of being a felon in
possession of a firearm in violation of 18 U.S.C.
sec. 922(g)(1), and a jury convicted him of that
charge. The Armed Career Criminal Act, 18 U.S.C.
sec. 924 (e), applied and Hayes was ultimately
sentenced to 250 months imprisonment, five years
supervised release, a $1,500 fine and $100
special assessment. Hayes now appeals that
conviction, arguing selective prosecution,
insufficiency of the trial evidence, and absence
of probable cause for the initial arrest.


I.

  The path to his nearly 21-year sentence began
when Hayes engaged in the rather unremarkable act
of crossing a street when the pedestrian signal
read "DON’T WALK." Hayes’ traverse was ill-timed,
however, because he stepped out in front of a
police car that had to brake to avoid hitting
him. Hayes proceeded across the street, and the
police car completed a U-turn and approached him.
The officers testified that they were following
Hayes to issue him a pedestrian violation
citation. Rather than waiting to see what the
officers would do, however, Hayes began running
away from them. One of the officers observed him
trying to shove something into a couch that was
located outside a secondhand furniture store. He
then raced away again. The officers checked the
couch and did not find anything there, but at
that time a witness alerted them that Hayes had
dropped something near the couch. The officers
then recovered a firearm magazine containing
nine-millimeter ammunition. Another witness,
Larry Webb, informed the officers that he had
observed that Hayes was carrying a gun, and that
Hayes attempted to stuff it into the couch but
then retrieved it and ran away. The officers then
broadcast a description of Hayes, and other
officers apprehended him approximately a block
and a half away from the furniture store. He was
placed under arrest for obstruction and on
suspicion of carrying a concealed weapon. When
the officers retraced Hayes’ path of travel, they
spotted a dumpster just north of the vacant lot
by the secondhand furniture store, and resting on
top of the dumpster was a black semiautomatic
handgun with a brown handle. The witness who had
observed Hayes carrying the weapon and attempting
to place it in the couch cushions subsequently
identified the gun as the one carried by Hayes.
The loaded magazine retrieved from the sidewalk
fit the gun recovered in the dumpster.

  Hayes told the police that the firearm belonged
to a friend of his named "James." Hayes further
stated that James dropped the pistol when he was
running, and that Hayes picked it up and the
magazine fell out into his hand. He acknowledged
that he tried to hide the gun under a couch on
the sidewalk so he would not "catch a gun case,"
but then ran around the corner and threw it into
the dumpster.

  At trial, Hayes took a different tack in
explaining the events of that night. He
maintained that he ran from the police because he
thought a warrant had issued for his failure to
pay child support, and he denied putting the gun
in the couch cushions or the dumpster. Hayes
testified that he had lied to the police
concerning his conduct because he was assured by
the detective interviewing him that he would just
get a misdemeanor charge, that his fingerprints
were on the gun, and that the D.A. would "make it
hard" for him because they had to release him on
a murder charge he did not commit. The jury
convicted him of being a felon in possession of
a firearm.

II.

  Hayes first argues that the court erred in
refusing to suppress all evidence stemming from
his arrest because the officers lacked probable
cause to believe he had committed a misdemeanor
or felony offense at the time of his arrest.
According to Hayes, the only "offense" for which
there was probable cause at the time of his
arrest was for jaywalking, and that nonmoving
traffic violation gave them authority to issue a
municipal citation, but not to arrest him.

  In order to have probable cause for an arrest,
law enforcement agents must reasonably believe,
in light of the facts and circumstances within
their knowledge at the time of the arrest, that
the suspect had committed or was committing an
offense. United States v. Kincaid, 212 F.3d 1025,
1028 (7th Cir. 2000); United States v. Osborn, 120
F.3d 59, 62 (7th Cir. 1997). The probable cause
standard is a flexible, practical common-sense
one which is met if the facts are sufficient to
warrant a person of reasonable caution to believe
that an offense has been or is being committed.
United States v. Colonia, 870 F.2d 1319, 1323 (7th
Cir. 1989) (citations omitted); United States v.
Evans, 27 F.3d 1219, 1228 (7th Cir. 1994).

  At the time that Hayes was arrested, the
officers had been presented with facts sufficient
to indicate that Hayes was committing the offense
of carrying a concealed weapon. At that time, the
officers had already heard from Webb who told
them that he observed Hayes with the gun, and
that Hayes attempted to place the gun in the
couch cushions but then ran off with it. That
eyewitness account was consistent with the
officer’s own observation of Hayes attempting to
place something in the couch. Moreover, the
officers had recovered a magazine for a nine-
millimeter firearm that another witness
identified as having been dropped by Hayes. In
conjunction with Hayes’ flight upon seeing the
officers approaching him, the facts certainly
warranted a person of reasonable caution to
believe that Hayes had committed the offense of
carrying a concealed weapon. Because that
evidence established probable cause for the
arrest, we need not address the government’s
alternative argument that the seizure of the gun
was not the fruit of the arrest.

  Hayes next asserts that the district court
erred in denying his motion to dismiss the
superceding indictment on the grounds that he was
a victim of selective prosecution (which he also
terms "selective enforcement"). In that motion,
Hayes argued that African-American felons are
disproportionately selected for prosecution in
federal court on charges of possession of a
firearm by a felon, whereas members of other
ethnic groups are charged only in state court. As
support for this motion, Hayes presented an
article from the Milwaukee Journal Sentinel
indicating that about a dozen offenders per year
were referred for federal rather than state
prosecution. Hayes’ counsel argued that based on
information and belief and his own experience,
the overwhelming majority of those offenders
subject to such federal prosecution from
Milwaukee County have been African-American.
Hayes’ counsel then stated that he recently
represented two African-American defendants who,
like Hayes, were not only referred for federal
prosecution for violation of 18 U.S.C. sec.
922(g)(1) (felon in possession of a firearm), but
also were subject to the Armed Career Criminal
Act, 18 U.S.C. sec. 924(e), and its mandatory
minimum sentence of 15 years. With no further
factual evidence, Hayes sought dismissal of the
indictment or, in the alternative, a court order
allowing Hayes to subpoena records from the
Milwaukee County District Attorney’s office
concerning the nature and number of persons
selected for federal versus state prosecution for
unlawful possession of a firearm.

  In response, the government produced its
guidelines for Operation Triggerlock, which set
forth race-neutral criteria for determining which
convicted felons would be charged in federal
court for possessing firearms. Under those
guidelines, referrals for federal prosecution
were sought in two types of cases: (1) felons in
possession of firearms who have two or more prior
convictions for crimes of violence or one prior
crime of violence along with other aggravating
circumstances such as multiple guns or prohibited
weapons; and (2) felons in possession of firearms
who are armed career criminals as defined by 18
U.S.C. sec. 924(e).

  The Supreme Court in United States v.
Armstrong, 517 U.S. 456, 458 (1996), directly
addressed the showing necessary for a defendant
to be entitled to discovery on a claim that the
prosecuting attorney singled him out for
prosecution on the basis of race. The Court first
recognized that a claim of selective prosecution
draws on ordinary equal protection standards, and
requires the claimant to demonstrate "that the
federal prosecutorial policy ’had a
discriminatory effect and that it was motivated
by a discriminatory purpose.’" Id. at 465
[citations omitted]. The Court further noted that
to establish a discriminatory effect in race
cases, the claimant must show that similarly-
situated persons of a different race were not
prosecuted. Accordingly, the Court held that in
order to obtain discovery on such a claim, a
defendant must at least produce some evidence
that similarly-situated defendants of other races
could have been prosecuted but were not. Id. at
469.
  Hayes has produced no such evidence here. The
submission of a newspaper article and his
attorney’s anecdotal evidence is remarkably
similar (in form if not content) to the evidence
rejected by the Armstrong Court as insufficient
to trigger discovery. In Armstrong, which
involved prosecutions for distribution of crack
cocaine, the defendants submitted an affidavit
from a criminal defense attorney alleging that in
his experience, many non-blacks are prosecuted in
state court for crack offenses, and a newspaper
article reporting that crack criminals are
punished far more severely than powder cocaine
criminals, and that almost every one of them is
black. Id. at 460-61. One of the defendants’
attorneys in Armstrong also presented an
affidavit alleging that an intake coordinator at
a drug treatment center told her that there are
an equal number of Caucasian and non-Caucasian
users and dealers. Id. at 460. Finally, the
defendants presented a "study" from the Public
Defenders’ Office indicating that all crack
distribution cases closed by that office in 1991
involved African-American defendants. The
Armstrong court held that the evidence was
insufficient to meet the minimal burden of
demonstrating that similarly-situated persons of
another race were treated differently. Id. at
470.
  The evidence presented by Hayes is similar in
form but much less relevant in substance. The
newspaper article presented by Hayes says nothing
regarding the race of persons federally
prosecuted for firearms offenses, and merely
indicates that approximately a dozen cases were
prosecuted in a year. Moreover, Hayes’ attorney
did not present an affidavit, but merely
improperly included statements of personal
experience in the motion itself. Those statements
were similarly unhelpful because they merely
indicated that African-Americans falling within
the Operation Triggerlock guidelines were
prosecuted in federal courts on such charges.
Entirely absent is the information essential for
a selective prosecution allegation--that persons
of another race who fell within the Operation
Triggerlock guidelines were not federally
prosecuted. Hayes has failed to identify a single
defendant of another race who met the guidelines
of Operation Triggerlock but was not federally
prosecuted, and presented no evidence whatsoever
supporting his claim that African-Americans are
disproportionately prosecuted for such offenses
in federal court. Absent some evidence of
different treatment for similarly-situated
individuals of other races, Hayes is engaged in
the type of fishing expedition rejected by the
Supreme Court and this court. Id.; United States
v. Westmoreland, 122 F.3d 431, 434 (7th Cir.
1997). As in Westmoreland, his claim "borders on
the frivolous." 122 F.3d at 434. The district
court properly denied his motion to dismiss the
indictment or to obtain discovery based on
selective prosecution.

  Finally, Hayes argues that the evidence at
trial was insufficient to support the jury
determination of guilt. This claim too is
patently without merit. Hayes largely relies on
inconsistencies between Webb’s testimony
regarding the sequence of events and that of the
officers. The lack of a complete overlap between
the recollection of two witnesses is hardly
surprising, and it was the province of the jury
to determine whether those inconsistencies
rendered the testimony incredible. See United
States v. Griffin, 194 F.3d 808, 817 (7th Cir.
1999). We will overturn a conviction based on a
credibility determination only if the witness’
testimony was incredible as a matter of law. Id.
That is an exacting standard, and can be met, for
instance, by showing that "’it would have been
physically impossible for the witness to observe
what he described, or it was impossible under the
laws of nature for those events to have occurred
at all.’" Id., quoting United States v. Alcantar,
83 F.3d 185, 189 (7th Cir. 1996). In contrast,
"witnesses’ disagreements about such facts as the
color or direction of the car are routine
conflicts in testimony, inconsistencies well
within the province of the jury to sort out."
Griffin, 194 F.3d at 818. The inconsistencies
identified by Hayes fall into the latter
category, involving facts such as which vehicle
Hayes walked out in front of and what other
vehicles were present. Nothing in the record
indicates that it was physically impossible for
Webb to have observed the events to which he
testified, or that those events could not have
occurred. The alleged inconsistencies were
properly weighed by the jury considering
credibility, but they do not render his testimony
incredible as a matter of law.

  For the above reasons, the decision of the
district court is affirmed.
