United States of America v. Hailey Gist-Holden

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 14, 2024 *
Decided July 11, 2024
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 23-1755
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HAILEY GIST-HOLDEN,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:21CR71-002
Philip P. Simon,
Judge.
O R D E R
A jury found Hailey Gist-Holden guilty of armed robbery and murder in
violation of 18 U.S.C. §§ 2113(a), (d), (e), 924(c)(1)(A), (j). He was sentenced to two
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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consecutive terms of life imprisonment. He now challenges his conviction, raising
numerous pre-trial, trial, and post-trial errors. We affirm.
Background
Gist-Holden partially owned and coached the Illini Panthers, a minor league
football team. In 2021, he and the team ran into financial troubles. Gist-Holden
approached James King and Kenyon Hawkins, two players on the football team, about
a plan to rob a bank in Gary, Indiana, so that the team would have money for lodging
and other costs. King and Hawkins agreed to participate in the robbery.
On June 11, 2021, Gist-Holden brought King and Hawkins to his home in Gary to
plan the operation. Gist-Holden provided two firearms, a handgun and an AR-style
rifle, that his girlfriend had purchased. At that time, King sent a photo to another
teammate that showed Gist-Holden holding a firearm.
The group then left the home, driving in a U-Haul that Gist-Holden had rented.
Hawkins dropped King and Gist-Holden off near the bank, where a security guard
stood out front. Bank security footage shows Gist-Holden shooting the guard in the
head with the rifle, killing him. King entered the bank and collected approximately
$9,000 from registers, while Gist-Holden stood in a vestibule, yelling that it was a
robbery and shooting out the windows of the bank with the rifle.
Approximately two hours later, King was apprehended by Indiana authorities in
the woods adjacent to the bank. There, authorities recovered the handgun and the
money. In the bank, authorities also found shell casings connected to the rifle used by
Gist-Holden. Authorities questioned King, and he told them to check the serial number
of his handgun. King later identified Gist-Holden as the robber in a photo lineup.
In the meantime, Hawkins and Gist-Holden had driven to Atlanta. Authorities
identified Gist-Holden’s phone numbers and sought to locate him. On June 12 and 14, a
federal magistrate judge issued a search warrant for the call detail records and real-time
location data for one phone. On June 16, the magistrate judge issued a search warrant
for the location data of another phone. Authorities also sent a preservation letter to a
cell phone provider on June 15, asking it to preserve historical cell-site data while they
obtained a warrant, which occurred on March 3, 2022.
In addition, law enforcement agents applied for a search warrant for Gist-
Holden’s house. The affidavit supporting the warrant relied on King’s identification of

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Gist-Holden as a co-conspirator in the robbery, King’s photo showing an armed Gist-
Holden sitting inside his house before the robbery, and agents’ contact with Gist-
Holden’s landlord, who stated that he was significantly behind on rent. Agents
obtained the warrant the night of June 15 and executed it the next day. During the
search, agents recovered a bag of ammunition, empty rifle cartridge casings, and empty
handgun cartridge casings. (In September 2022, a ballistics expert testified that the rifle
casings from the robbery scene and from Gist-Holden’s home had been “cycled through
the same weapon.”) In the basement of the house, agents also found marijuana
growing; combined with the packaging and jars, it weighed over 15,000 grams.
A federal criminal complaint drafted the day of the search charged Gist-Holden
with possession of marijuana with intent to distribute. 21 U.S.C. § 841(a). The same
agent who supported the federal complaint also filed a probable cause affidavit relating
to state robbery and murder charges against Gist-Holden, leading to an arrest warrant.
Eventually, Gist-Holden was pulled over and arrested by Georgia police on
June 17, after engaging in a nine-mile high-speed chase with officers. After he was taken
into custody, a nurse conducted a medical screening and confirmed that Gist-Holden
did not suffer any injury or distress and looked alert and responsive. FBI agents in
Georgia later explained to Gist-Holden that he had been arrested for the high-speed
chase and for federal marijuana charges, but he would not be questioned until agents
from Indiana arrived. He was brought into an interview room that had a video camera,
four chairs, and a table, to await the agents’ arrival. Gist-Holden asked one of the local
agents, “Is there anybody who could counsel me right now by the time [Indiana
authorities] arrive?” The agent responded that an attorney would be difficult to obtain
at that hour, but that he had the right to not speak with the agents and could go back to
his cell. Gist-Holden stayed in the interrogation room.
When agents arrived from Indiana later that night, Gist-Holden was read his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). He reviewed the written
admonitions himself, and agents verbally confirmed that he understood that, by signing
the waiver, he was agreeing to speak without counsel. Gist-Holden then signed. During
the interrogation, he denied taking part in the robbery, but admitted that the morning
of the robbery he was at his house with King and Hawkins and later drove Hawkins to
Georgia. He also wrote down that the rifle was “gone.” He again referred to obtaining
counsel, including by saying, “I want a lawyer to assist with some kind of deal.” But he
continued to answer questions until agents asked him to clarify his intent to obtain

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counsel. He then stated that he wanted a lawyer before further questioning, and the
interview stopped.
Later, a federal grand jury indicted King and Gist-Holden for engaging in an
armed bank robbery that caused another’s death, 18 U.S.C. § 2113(a), (d), (e), and using
a firearm during a crime of violence resulting in murder, id. §§ 2, 924(c)(1)(A), (j). The
government dismissed the marijuana complaint. The government later charged
Hawkins (eventually arrested in Florida) as well. King and Hawkins pleaded guilty and
agreed to testify against Gist-Holden at his trial.
Before trial, Gist-Holden, who proceeded pro se, moved to suppress (1) the
record of numbers dialed from his cell phones; (2) tracking and location data gleaned
from cell-tower records; (3) his statements during the interrogation in Georgia;
and (4) all evidence recovered from his home. He requested a Franks hearing to
challenge the validity of the search and arrest warrants on the ground that they were
based on perjured statements. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Without a hearing, the district court denied the motions, explaining that Gist-Holden’s
assertions of perjury largely lacked support and that the records, evidence, and
statements were validly obtained.
At his nine-day jury trial in October 2022, Gist-Holden continued to act pro se,
with the assistance of standby counsel. The jury found him guilty on both counts. Five
months after the verdict, Gist-Holden moved for a new trial on the basis that his co-
defendants and various law enforcement officers gave perjured testimony. FED . R. C IV.
P. 33. The district court denied the motion as untimely. Gist-Holden was sentenced to
two consecutive terms of life imprisonment.
Gist-Holden timely appealed. We appointed counsel on appeal, but Gist-Holden
moved to terminate the representation and have a different lawyer appointed. After we
denied that motion, Gist-Holden moved to proceed pro se on appeal. We ordered his
attorney to “report back to the court with her assessment whether defendant Gist-
Holden’s desire to proceed pro se on appeal is knowing, intelligent, voluntary, and
unequivocal.” See Faretta v. California, 422 U.S. 806, 835 (1975). Appellate counsel
reported that she had a “thorough discussion” with Gist-Holden about his background
and abilities and the consequences of handling his appeal without counsel. She
concluded that his decision to proceed pro se was knowing, intelligent, voluntary, and
unequivocal. Thereafter, we granted Gist-Holden’s motion to terminate counsel and
proceed pro se, and we set the briefing schedule.

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Analysis
On appeal, Gist-Holden argues that the district court committed multiple
reversible errors before, during, and after trial. We address each argument in turn.
I. Request for a Franks Hearing
Gist-Holden challenges the denial of his motion for a Franks hearing to establish
that the search and arrest warrants were invalid because law enforcement officers
obtained them “by deliberately or recklessly providing false, material information or
deceptive omissions to the issuing judge.” United States v. Vines, 9 F.4th 500, 510–11
(7th Cir. 2021). A defendant is entitled to an evidentiary hearing on this question if he
makes “a substantial preliminary showing of specific intentional or reckless
misrepresentations or omissions” and shows that “if the deliberately or recklessly false
statements were omitted, or if the . . . misleading omissions included, probable cause
would have been absent.” Id. (quotations and citations omitted). We review the denial
of a Franks hearing for clear error and any underlying legal conclusions de novo. See id.
a. Validity of Search Warrants for Cell Phone Data and House
First, Gist-Holden asserts that a Franks hearing should have been held to
determine whether FBI agents knowingly relied on false statements by King to obtain
search warrants for his cell phone call records and his house. Gist-Holden asserts that
King was not a reliable informant because he “lied” about Gist-Holden’s height and
haircut, told agents that he committed the robbery with his “teammates” rather than his
coach, and was not truthful about his own whereabouts. But even if these details in the
affidavit are inaccurate, they are not material to whether there was probable cause to
believe that Gist-Holden’s home and cell phone records would contain evidence of a
bank robbery and murder. Immaterial information in a probable-cause affidavit, even if
intentionally misleading, does not trigger the need for a Franks hearing. See United States
v. Swanson, 210 F.3d 788, 790 (7th Cir. 2000); Vines, 9 F.4th at 511. Moreover, Gist-Holden
failed to point to any evidence that the affiant used King’s statements with the intent to
deceive or with reckless disregard of the truth. See United States v. Spears, 673 F.3d 598,
605 (7th Cir. 2012). Gist-Holden’s speculation that agents knew King made false
statements is not enough to obtain a Franks hearing. See United States v. Johnson, 580 F.3d
666, 671 (7th Cir. 2009).

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b. Validity of Arrest Warrant for Federal Marijuana Charges
Second, Gist-Holden asserts that the district court should have held a Franks
hearing to determine whether agents made perjurious statements to obtain a warrant to
arrest him on federal marijuana charges. He argues that the agent-affiant falsely attested
that there were 15,000 grams of marijuana inside Gist-Holden’s house. This is incorrect.
The agent stated that a “significant amount of marijuana” was found in the house, and,
together with the packaging, the weight “was greater than 15,000 grams.” This use of an
approximate weight did not require a Franks hearing. See United States v. Maro, 272 F.3d
817, 822 (7th Cir. 2001) (alleged affidavit shortcomings were not egregious errors that
warranted Franks hearing). Further, any statement about the overall weight was
immaterial because federal law prohibits possessing with intent to distribute any
quantity of marijuana. 21 U.S.C. § 841(a)(1), (b)(1)(D).
II. Suppression of Cell Phone Identifiers, Real-Time Tracking Data, Historical
Cell-Site Data, and Evidence from Home Search
Next, Gist-Holden challenges the district court’s denial of his motions to
suppress evidence from the search of his home and his cell phones’ identifiers, real-time
tracking information, and historical location data. He argues that authorities obtained
unlawful consent from his landlord to search the house before obtaining a warrant and
improperly “hacked” into his phones without a warrant.
As to the search of Gist-Holden’s house, a landlord cannot consent to a search of
a tenant’s premises, and thus a warrantless search based on a landlord’s consent may
violate the Fourth Amendment. See United States v. Thomas, 65 F.4th 922, 924–25 (7th Cir.
2023). But Gist-Holden provided no evidence in the district court that the search
occurred before law enforcement obtained a warrant or that law enforcement went to
the landlord to gain entry. (Before the search, agents talked to the landlord about Gist-
Holden’s tenancy but did not seek the landlord’s consent to search). Gist-Holden says
only that the search must have occurred before the warrant’s issuance on June 15 at
8:55 p.m. because photos from the search show daylight. Indeed, the search occurred
during the day—but on June 16, the day after the warrant’s issuance.
As to the identifiers from Gist-Holden’s cell phones that agents obtained by
subpoena to his wireless carrier, no court has held that a defendant has a reasonable
expectation of privacy in the phone numbers dialed from a particular phone. See Smith
v. Maryland, 442 U.S. 735, 743–44 (1979); United States v. Soybel, 12 F.4th 584, 591 (7th Cir.

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2021). Thus, a warrant was unnecessary, and a subpoena sufficed, to obtain this
information. See United States v. Caira, 833 F.3d 803, 809 (7th Cir. 2016).
The tracking and historical location data gleaned from Gist-Holden’s cell phones,
however, raises an expectation of privacy under the Fourth Amendment, and a warrant
is required for that information. See Carpenter v. United States, 585 U.S. 296, 316–17
(2018). Here, law enforcement obtained warrants before obtaining the tracking and
historical location data from Gist-Holden’s cell phones. Gist-Holden does not challenge
the validity of these warrants; he ignores them in simply alleging “hacking.” And even
if the warrants were invalid, the exigent circumstances exception to the warrant
requirement would apply because Gist-Holden had not yet been located after fleeing
from Indiana, and law enforcement needed to locate him quickly. See id. at 319–20.
III. Fifth Amendment Right Against Self-Incrimination
Next, Gist-Holden argues that the district court erred when it denied his motion
to suppress inculpatory statements made to law enforcement. We review the denial of
the motion de novo. See United States v. Hunter, 708 F.3d 938, 942 (7th Cir. 2013).
Gist-Holden first argues that he did not waive his Miranda rights knowingly and
intelligently because agents coerced him into speaking. See Moran v. Burbine, 475 U.S.
412, 421 (1986). We reviewed the video and audio footage of Gist-Holden’s waiver, and
there is more than enough evidence to conclude that Gist-Holden understood his
Miranda rights; received a written copy of the warnings and took time to read them;
heard an explanation of his rights; and knew he had the option to remain silent
throughout questioning. Moreover, there is no evidence that his statements were
coerced. The agents did not threaten or injure him; he did not express any fear; and the
interrogation occurred in a standard-sized room in unremarkable conditions.
Second, Gist-Holden argues that his statements should have been suppressed
because questioning should have stopped when he said, “Is there anybody who could
counsel me right now by the time [Indiana authorities] arrive?” and “I want a lawyer to
assist with some kind of deal.” During a custodial interrogation, when a suspect clearly
asserts his right to counsel, all questioning must stop, and any admissions after that
point must be suppressed. See Edwards v. Arizona, 451 U.S. 477, 484–85, 487 (1981). A
statement is sufficient to invoke the right to counsel if it shows “a certain and present
desire to consult with counsel.” Hunter, 708 F.3d at 942. But if the suspect makes an
“ambiguous or equivocal” reference to an attorney, and a reasonable officer would

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conclude only that the suspect might be requesting counsel, questioning can
continue. See Davis v. United States, 512 U.S. 452, 459 (1994).
As the district court concluded, none of Gist-Holden’s statements were
unambiguous requests for counsel. The first statement (“Is there anybody who could
counsel me right now by the time [Indiana authorities] arrive?”) uses hedging,
conditional language, and we have distinguished words such as “should,” “could,” or
“might” from a clear request. Hunter, 708 F.3d at 943–44. Further, the forward-looking
clause (“by the time [Indiana authorities] arrive”) would allow a reasonable officer to
believe that Gist-Holden was not yet requesting an attorney. His second statement (“I
want a lawyer to assist with some kind of deal”) did not reference the ongoing
interrogation. A reasonable officer would not believe that Gist-Holden was requesting
an attorney to be present for questioning rather than expressing a desire for a lawyer-
negotiated plea bargain. Regardless, the officers asked clarifying questions—a practice
that is encouraged but not required, see United States v. Lee, 413 F.3d 622, 625 (7th Cir.
2005)—and Gist-Holden still did not make an unambiguous statement. When he did so
later in the interrogation, all questioning stopped. Thus, officers did not infringe his
rights under the Fifth Amendment as understood by Miranda and Edwards.
IV. Sixth Amendment Right to Counsel
Gist-Holden also challenges his interrogation on Sixth Amendment grounds
because, he asserts, state robbery and murder charges had already been filed at the time
the agents started questioning him without a lawyer. The Sixth Amendment right to
counsel attaches at the initiation of formal judicial proceedings. See McNeil v. Wisconsin,
501 U.S. 171, 180–81 (1991). But here, when Gist-Holden was questioned in Georgia, he
had not yet been brought before a judge, so the Sixth Amendment had not yet attached.
See id.; Garcia v. Hepp, 65 F.4th 945, 950 (7th Cir. 2023). Regardless, Gist-Holden agreed
to waive his Miranda rights, which generally suffices as a valid abandonment of Sixth
Amendment rights in addition to those under the Fifth Amendment. See Montejo v.
Louisiana, 556 U.S. 778, 786 (2009).
V. Evidence
Gist-Holden next argues that the government failed to meet its burden to prove
at trial that he committed the murder and armed robbery. He cites various perceived
holes in the government’s case, including: (1) that King and Hawkins were unreliable
witnesses because local officers on the scene identified only two robbers exiting the
bank; (2) that Gist-Holden obtained the agreement of an FBI witness that had Gist-

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Holden been “let’s just say, near O’Hare Airport” at the time of the robbery (though no
evidence supported Gist-Holden’s theory that he was not at the bank during the
robbery), it would have been impossible for him to commit the robbery; (3) that none of
his DNA or fingerprints were found at the crime scene; and (4) that none of the bank
employees or eyewitnesses identified Gist-Holden’s proper height.
Gist-Holden did not raise a sufficiency argument at the close of the government’s
case or after the verdict in a motion under Rule 29 of the Federal Rules of Criminal
Procedure. Accordingly, we review his challenge for plain error. See United States v.
Lundberg, 990 F.3d 1087, 1095 (7th Cir. 2021). For unpreserved sufficiency challenges, we
can overturn a jury verdict “only if no rational trier of fact could have agreed with the
jury.” Id. We view the evidence in the light most favorable to the government and do
not reweigh evidence or reassess credibility of witnesses. See United States v. Wallace,
991 F.3d 810, 812 (7th Cir. 2021). Ultimately, Gist-Holden must show that the record is
“devoid of evidence pointing to guilt” or that the evidence on a key element is so
“tenuous” that a conviction is “shocking.” Lundberg, 990 F.3d at 1095.
The evidence against Gist-Holden is overwhelming. It includes a video recording
of him shooting the security guard, real-time text messages placing Gist-Holden at his
home with the co-defendants just before the robbery, shell casings in his home
connected to the same weapon used for the murder, testimony from co-defendants
about his role in the robbery, cell phone records and location data, and evidence of his
consciousness of guilt (fleeing the jurisdiction and engaging in a high-speed chase). The
holes that Gist-Holden points to are trivialities when weighed against the evidence of
his guilt and did not require the jurors to reject the ample evidence against him.
VI. Motion for New Trial
Finally, Gist-Holden argues that the district court should have granted his
motion for a new trial. In his motion five months after the jury verdict, Gist-Holden
asserted that, in its closing argument, the government improperly relied on a statement
from King that Gist-Holden had impeached. (King falsely denied ever saying that “he
would say or do anything to get out of jail.”) The district court denied the motion as
untimely, and Gist-Holden now asserts that his motion should have been granted.
The court did not err. Gist-Holden’s motion was not filed within 14 days of the
verdict, as required by Rule 33(b)(1) of the Federal Rules of Criminal Procedure. Even if
timely, the weight of the evidence of Gist-Holden’s guilt was so overwhelming that the
jury would have convicted him with or without the government referring to King’s

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statement in its closing. The possibility that the jury relied on a statement bolstering
King’s credibility is too abstract to create a reasonable doubt about his guilt.
AFFIRMED

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