In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1623

United States of America,

Plaintiff-Appellee,

v.

Bradley Carl Brown,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-CR-104-S--John C. Shabaz, Judge.

Argued November 7, 2001--Decided January 10, 2002



  Before Flaum, Chief Judge, and Posner and
Kanne, Circuit Judges.

  Posner, Circuit Judge. The defendant
pleaded guilty to bank robbery in
violation of 18 U.S.C. sec. 2113(a) and
was then sentenced to life in prison
under the federal "three strikes and
you’re out" law, 18 U.S.C. sec. 3559(c).
That law requires a life sentence upon
conviction of a "serious violent felony,"
defined to include bank robbery, 18
U.S.C. sec. 3559(c)(2)(F)(i), if, so far
as is relevant to this case, the
defendant has previously been convicted
of two "serious violent" felonies. But
the statute goes on to provide that a
robbery shall not qualify as a serious
violent felony "if the defendant
establishes by clear and convincing
evidence" that (again, so far as bears on
this case) he did not use a "firearm or
other dangerous weapon" and did not
inflict a "serious bodily injury," 18
U.S.C. sec. 3559(c)(3)(A), which the
statute, incorporating by reference 18
U.S.C. sec. 1365(g)(3), defines as bodily
injury that involves "a substantial risk
of death," "extreme physical pain,"
"protracted and obvious disfigurement,"
or "protracted loss or impairment of the
function of a bodily member, organ, or
mental faculty." Brown concedes that he
has two prior qualifying convictions but
argues that his latest offense, the one
he has been sentenced to life in prison
for, is nonqualifying, and alternatively
that the statute violates due process by
imposing on him the burden of proving
that a robbery is nonqualifying.

  Brown had brandished a baseball bat
during the robbery; and during his escape
he had rammed a police officer’s car,
causing a muscle in the officer’s leg and
calf to tear, which required
hospitalization, crutches, and a
prescription for pain medication,
although the officer refused the
medication because he was allergic to it.
Brown’s assault did not create a
substantial risk of death, nor did it
cause disfigurement, or protracted loss
or impairment of the function of the leg;
but the officer testified that he
experienced extreme pain for eight days,
and, since the testimony was
uncontradicted and was believed by the
sentencing judge, that was enough to
knock out the defense that the offense
was nonqualifying. In addition, a
baseball bat, when used as Brown used it,
becomes a dangerous weapon, United States
v. Johnson, 199 F.3d 123, 126 (3d Cir.
1999); Corder v. State, 467 N.E.2d 409,
412 (Ind. 1984); State v. Tomlinson, 635
N.W.2d 201, 212, 213 (Wis. App. 2001);
Hill v. State, 516 So. 2d 876, 882 (Ala.
Crim. App. 1987); it can cause grievous
injury or even death. Foster v. Schomig,
223 F.3d 626, 628 (7th Cir. 2000);
Simpson v. Matesanz, 175 F.3d 200, 202
(1st Cir. 1999); People v. Fair, 636
N.E.2d 455, 476 (Ill. 1994); People v.
Flowers, 561 N.E.2d 674, 676 (Ill. 1990);
Perigo v. State, 541 N.E.2d 936, 938
(Ind. 1989); State v. Tomlinson, supra,
635 N.W.2d at 212; State v. Truax, 444
N.W.2d 432, 433 (Wis. App. 1989); cf.
Chandler v. Moore, 240 F.3d 907, 913
(11th Cir. 2001). So Brown’s first
argument fails twice over.

  Brown’s second argument relies on the
ubiquitous Apprendi case, Apprendi v. New
Jersey, 530 U.S. 466 (2000), which Brown
interprets to mean that any fact that
increases a defendant’s sentence must be
proved by the prosecution beyond a
reasonable doubt. However, as the other
courts to consider this argument have
held, United States v. Gatewood, 230 F.3d
186, 192 (6th Cir. 2000) (en banc);
United States v. Weaver, 267 F.3d 231,
251 (3d Cir. 2001); United States v.
Gray, 260 F.3d 1267, 1279 n. 5 (11th Cir.
2001), Apprendi leaves undisturbed the
principle that while the prosecution must
indeed prove all the elements of the
offense charged beyond a reasonable
doubt, Apprendi v. New Jersey, supra, 530
U.S. at 477; United States v. Bjorkman,
270 F.3d 482, 491 (7th Cir. 2001) (per
curiam), the legislation creating the of
fense can place the burden of proving
affirmative defenses on the defendant.
E.g., Martin v. Ohio, 480 U.S. 228, 235-
36 (1987). What is more, it can be a
heightened burden of proof, like proof
beyond a reasonable doubt, Leland v. Ore
gon, 343 U.S. 790, 798 (1952), and even
more clearly therefore it can be as in
this case the lesser burden of proof by
clear and convincing evidence. Apprendi
v. New Jersey, supra, 530 U.S. at 487 n.
13; Patterson v. New York, 432 U.S. 197,
207-08 (1977).

  The first half of this rule comes from
the principle that due process requires
the prosecution in a criminal case to
prove the defendant’s guilt beyond a
reasonable doubt. This principle implies
that the prosecution must prove each
element of the offense beyond a
reasonable doubt. Fiore v. White, 531
U.S. 225, 228-29 (2001) (per curiam);
Apprendi v. New Jersey, supra, 530 U.S.
at 477; United States v. Gaudin, 515 U.S.
506, 510 (1995); United States v. Stott,
245 F.3d 890, 908 (7th Cir. 2001); Eaglin
v. Welborn, 57 F.3d 496, 500 (7th Cir.
1995). A defendant cannot be convicted of
an offense unless all its elements are
proved. Therefore, if the prosecution
didn’t have to prove one of the elements
beyond a reasonable doubt, this would
imply that a defendant could be convicted
upon something less than proof beyond a
reasonable doubt.

  It is a different question what if any
limits there are on a legislature’s power
to determine what shall be the elements
of an offense and what shall be defenses
for the defendant to prove. The Supreme
Court has said that it would be
unconstitutional for a state to
reclassify all the elements of a crime as
affirmative defenses. That would amount
to a legislative declaration that any
individual charged with a crime was
presumptively guilty of it and so would
erase the presumption of innocence,
McMillan v. Pennsylvania, 477 U.S. 79,
86-87 (1986); Patterson v. New York,
supra, 432 U.S. at 210, 211-12 n. 13,
which these and other cases treat, though
with minimal discussion, as a component
of due process of law. See Carella v.
California, 491 U.S. 263, 265 (1989) (per
curiam); Holbrook v. Flynn, 475 U.S. 560,
567 (1986); Sandstrom v. Montana, 442
U.S. 510, 521-23 (1979); In re Winship,
397 U.S. 358, 363, 364 (1970); United
States v. Seale, 461 F.2d 345, 372 (7th
Cir. 1972); United States v. Doyle, 130
F.3d 523, 534-35 (2d Cir. 1997). Maybe
the point seems too obvious to require
elaboration or historical investigation.
It would indeed be grotesque and indecent
for a legislature to define the offense
of murder as any killing of a human being
and place on the defendant the burden of
proving that the killing was
unintentional. In Martin v. Ohio, supra,
480 U.S. at 236, the Supreme Court did
hold that a state could place the burden
of proving self-defense on the defendant
in a murder case, but killing in self-
defense is deliberate, though
justifiable.

  This case does not involve erosion of
the principle that all elements of the
offense must be proved beyond a
reasonable doubt or of the principle that
wholesale conversion of offense elements
to affirmative defenses would be an
impermissible infringement of the
presumption of innocence. The federal
"three strikes" law does not alter the
existing statutory definition of bank
robbery. It just allows the defendant to
show that the particular robbery he
committed was not very violent. There is
an analogy to such partial defenses as
provocation and limited mental capacity,
Patterson v. New York, supra, 432 U.S at
205-06, which also enable a defendant to
show that his particular conduct was less
culpable than that of the average
perpetrator of the offense with which he
is charged. The novelty of the particular
defense at issue here is not an objection
of constitutional magnitude. See id. at
207; Apprendi v. New Jersey, supra, 530
U.S. at 483-84. It would be absurd to
discourage states from recognizing new
defenses by saying that prosecutors must
negate any new defense beyond a
reasonable doubt while the burden of
proving old defenses may be placed on
defendants.
Affirmed.
