USA v. Mohamed Fadiga
Filed opinion of the court by Judge Easterbrook. AFFIRMED. William J. Bauer, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6844936-1]  [16-3870]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:15CR43-‐‑001 — Philip P. Simon, Judge.
ARGUED MAY 18, 2017 — DECIDED JUNE 1, 2017
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. A jury found Mohamed
Fadiga guilty of possessing more than 15 unauthorized “ac-‐‑
cess devices”—gift cards that had been fraudulently reen-‐‑
coded—and a judge sentenced him to 30 months’ imprison-‐‑
ment. See 18 U.S.C. §1029(a)(3). He contends that police
learned about the crime by violating the Fourth Amendment
and that the jury pool was the result of racial discrimination.
A police officer stopped a car that had an expired license
plate. He asked Mamadu Barry, the driver, for registration
papers, which he did not have; Barry also professed not to
know who owned the car or where he was driving to. So the
officer asked Fadiga, who was in the passenger’s seat. Fadi-‐‑
ga replied that “a friend” owned the car and produced, not a
registration document, but a rental agreement. The car’s re-‐‑
turn was past due under that agreement, which did not au-‐‑
thorize either Barry or Fadiga to drive the car. When Fadiga
opened his wallet to extract his driver’s license, the officer
saw oodles of plastic cards in lieu of money. Now suspi-‐‑
cious, he asked Barry and Fadiga for permission to search
the car; both consented. The search turned up a bag full of
gift cards, and the officer asked his dispatcher to send some-‐‑
one with a card reader to determine whether the cards were
legitimate. About half an hour later the card reader arrived
and detected that the cards had been tampered with.
Fadiga’s motion to suppress the evidence rests on the de-‐‑
lay between the officer’s call and the card reader’s arrival.
Rodriguez v. United States, 135 S. Ct. 1609 (2015), holds that
police violate the Fourth Amendment by extending a traffic
stop to allow time for a drug-‐‑detection dog to arrive, unless
reasonable suspicion justifies an investigation. District Judge
Lozano concluded that the unless clause of Rodriguez has
been satisfied: the police reasonably suspected that the car’s
occupants possessed doctored gift cards. 2015 U.S. Dist.
LEXIS 91006 (N.D. Ind. July 14, 2015). Later the case was
transferred to Judge Simon, who agreed with Judge Lozano
and denied a motion for reconsideration. 2016 U.S. Dist.
LEXIS 65316 (N.D. Ind. May 18, 2016).
We agree with both district judges. The car’s occupants
consented to a search, which turned up far more gift cards
than the most avid shopper carries. That plus other suspi-‐‑
cious details—Barry’s professed ignorance of the car’s own-‐‑
ership and destination; Fadiga’s assertion that an unnamed
friend owned the car, coupled with a rental contract that did
not permit either Barry or Fadiga to operate the car—
justified detention to learn more. Rodriguez tells us that rea-‐‑
sonable suspicion permits a delay for the arrival of investiga-‐‑
tive resources. 135 S. Ct. at 1615–16. And that’s not all. Rodri-‐‑
guez dealt with a situation in which the car’s occupants
could drive away lawfully, if not detained by the police. But
Fadiga and Barry did not appear to have any right to use the
car. The return date on the rental contract had passed, and
neither Fadiga nor Barry had been authorized to drive the
car. Whether or not they waited for a card reader, the police
were entitled to detain Fadiga and Barry until their authority
to use the car had been determined. Extending the traffic
stop therefore did not violate the Constitution.
Now for the argument about discrimination. The venire
from which the jury was to be selected comprised 48 per-‐‑
sons, none of them black. Fadiga asserted that this must
have been the result of racial discrimination. Asked for sup-‐‑
porting evidence, Fadiga’s lawyer offered none. The judge
ruled that a person who protests the composition of the pool
from which a jury is drawn must show that some discrimi-‐‑
natory practice produced the racial imbalance. 2016 U.S.
Dist. LEXIS 71102 (N.D. Ind. June 1, 2016), citing, e.g., United
States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001) (“[T]he
makeup of any given venire is not significant, provided all
rules for selection have been observed.”).
Fadiga’s appellate brief tries to supply some of what was
missing in the district court. His lawyer observes that the
population of the two counties (Lake and Porter) from which
the jury pool came is approximately 20% black, and he asks
us to infer that a discriminatory practice must have existed.
Zero for 48 from such a population is exceptional, but Fadiga
has not attempted to estimate the probability that it could
occur by chance—nor has he provided data about voter reg-‐‑
istration or the age distribution of the counties’ population
(people under 18 are ineligible to serve on juries). The plan
at the time of Fadiga’s trial drew from lists of registered vot-‐‑
ers; since then, the Northern District of Indiana has amended
its plan to include as potential jurors everyone with gov-‐‑
ernment-‐‑issued identification such as a driver’s license, plus
all resident taxpayers, whether or not registered to vote.
For a challenge to the composition of a jury pool to suc-‐‑
ceed, counsel must show how the venire was selected. The
Jury Selection and Service Act, 28 U.S.C. §§ 1861–78, pro-‐‑
vides a means to do that, and §1867(d) entitles litigants to
hearings before jury selection begins if they can show what
seems to be a substantial departure from expectations. Liti-‐‑
gants who invoke this statute are entitled to discovery. See
§§ 1867(f), 1868. The statute adds that the “procedures pre-‐‑
scribed by this section shall be the exclusive means by which
a person accused of a Federal crime … may challenge any
jury on the ground that such jury was not selected in con-‐‑
formity with the provisions of this title” (§1867(e)).
The record does not offer any reason to think that the
rules of the Northern District’s former plan were either bi-‐‑
ased or bypassed. The plan is race-‐‑blind and before its
amendment should have produced venires that in aggregate
tracked the population of registered voters—at least if all
groups respond to jury summonses at the same rate, another
question on which the record is silent. It is possible to imag-‐‑
ine things going wrong, such as a batch of jury summonses
being sent to a single town or precinct that is predominantly
white, but there’s no evidence that this, or anything else, did
go wrong. As no one is entitled to racial balance on any par-‐‑
ticular jury, see Holland v. Illinois, 493 U.S. 474, 480 (1990);
United States v. Ashley, 54 F.3d 311, 315 (7th Cir. 1995), the
district court properly rejected Fadiga’s complaint about this
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