United States v. Conn, Bill S. Sr. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3506
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BILL S. CONN, SR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 CR 160—Sarah Evans Barker, Judge.
____________
ARGUED APRIL 10, 2002—DECIDED JULY 16, 2002
____________
Before RIPPLE, MANION and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Bill S. Conn, Sr., was convicted of
one count of willfully dealing in firearms without a license
in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). He
was sentenced to a two-year prison term. He now appeals
his conviction and submits that expert testimony was ad-
mitted improperly. He further contends that the jury could
not have convicted him on the sixth count after having ac-
quitted him on five related counts. For the reasons set forth
in the following opinion, we affirm the judgment of the
district court.
2 No. 01-3506
I
BACKGROUND
A. Facts
Acting on a tip from a local firearms dealer, the Bureau of
Alcohol, Tobacco and Firearms (“ATF”) in cooperation with
the Indiana State Police (“ISP”) investigated the activities of
Bill S. Conn, Sr., of Laurel, Indiana, a small town in the
southeastern corner of the state, near Ohio. Specifically, the
dealer suspected that Mr. Conn might be dealing in firearms
without a license. The ATF and ISP cooperated in an under-
cover investigation designed to discover whether Mr. Conn
was operating an unlicensed firearms dealership.
Over a three-month period, ISP officers and ATF agents
acquired seven firearms on six occasions from Mr. Conn. On
January 26, 2000, ISP Detective Ron Shoemaker went to Mr.
Conn’s farm. He told Mr. Conn that he was a felon, and that
he worked for a trucking company. At first, Detective Shoe-
maker attempted to sell Mr. Conn two guns. They negoti-
ated but Detective Shoemaker’s asking price was too high.
Detective Shoemaker then purchased a Davis Industries
model D25, .25 caliber Derringer handgun. On February 10,
Detective Shoemaker returned with ISP Detective Scott
Stockton and purchased a Fratelli Tanfoglio model Titan II,
.380 caliber pistol. On February 23, the two men returned
and this time Detective Stockton traded two DeWalt drills
for a Phoenix Arms model HP22, .22 caliber pistol. On
March 6, Detective Stockton, again accompanied by Detec-
tive Shoemaker, traded a drill and chainsaw, along with
$150 for a Taurus model PT92AF, 9 mm pistol. On April 17,
2000, Detective Stockton returned to Mr. Conn’s farm with
Jason Lowe, an ISP employee, who was then 19 years old.
Lowe traded a Stihl Model 44 chainsaw for a Davis Indus-
tries model P380, .380 caliber pistol. Finally, on April 24,
No. 01-3506 3
2000, Detective Shoemaker and ATF Special Agent Mike
Jaraczeski returned to Mr. Conn’s farm. Agent Jaraczeski
traded a television for a Lorcin Engineering model L380,
.380 caliber pistol, and he purchased for $200 a Charter
Arms model Undercover, .38 caliber revolver. The agents re-
corded each transaction on audiotape, and excerpts of these
tapes were played for the jury at trial.
Once the undercover operation was completed, the ATF
obtained a search warrant and seized 165 firearms and
10,000 rounds of ammunition from Mr. Conn’s home, most
of which were in one room (called the “gun room” by law
enforcement agents and “Bill’s room” by Mr. Conn’s wife
and adult son). Mr. Conn was arrested and indicted on six
counts of willfully dealing in firearms without a license in
violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). Each
count of the indictment corresponded to a separate firearms
purchase by the undercover officers.
B. District Court Proceedings
In addition to the officers who made the undercover pur-
chases, the Government presented the testimony of Alberta
Mohler, Rodney Pollard, Leesa Wyatt, firearms dealer James
Wulff, ATF Inspector Lisa Laughlin and ATF Special Agent
Scott McCart, who had coordinated the investigation into
Mr. Conn’s activities. Inspector Laughlin testified about the
nature of the federal licensing requirements for firearm
dealers, including the forms that must be filled out with
each firearm purchase. Mohler testified about her transac-
tions with Mr. Conn involving six firearms that she had pur-
chased from or sold to Mr. Conn in the late 1990s. Wulff
testified about firearms he had sold to Mr. Conn as well as
a firearm he had sold to Wyatt’s husband, which had been
stolen and ended up in the possession of Mr. Conn.
4 No. 01-3506
It was Rodney Pollard, a truck driver, who told Wulff
about Mr. Conn’s firearms cache after Pollard went to Mr.
Conn’s farm to sell some firearms. Pollard thought Mr.
Conn’s offer was too low and declined to sell him the fire-
arms. Pollard told Mr. Conn that he might be interested in
purchasing a hunting firearm for his son. Mr. Conn offered
to sell him a .357, but Pollard thought the price was too
high. Pollard also testified that while he was there, two
young men came to Mr. Conn’s farm and made a payment
of some kind on a firearms purchase. The story of these
young men was the subject of significant cross-examination
by Mr. Conn’s attorney. Apparently, the first time Pollard
related this aspect of his experience was at trial.
Agent McCart was the Government’s final witness. He
testified about the items seized from Mr. Conn’s house, in-
cluding receipts for nine firearms Mr. Conn had purchased
from individuals, 165 firearms and 10,000 rounds of ammu-
nition. Agent McCart also narrated the presentation of a
videotape made during the search and seizure, which the
jury viewed during his testimony. After Agent McCart tes-
tified that the search had revealed eight different calibers of
ammunition without a matching firearm in Mr. Conn’s col-
lection, the Government asked Agent McCart “whether or
not the firearms recovered in the search warrant . . . are
generally considered collector’s items?” Tr.III at 417.
The Government prefaced its question by asking Agent
McCart to base his answer on his “training and experience
as an agent with the Alcohol, Tobacco and Firearms Bu-
reau.” Id. Mr. Conn objected. Mr. Conn’s attorney stated that
“I don’t believe this witness is qualified to answer the
question. I don’t believe there is a proper foundation to
establish that he is a firearm collector or has any knowledge
of what is a collector’s item or not.” Id. The district court
then permitted Mr. Conn’s attorney to voir dire Agent Mc-
No. 01-3506 5
Cart. Mr. Conn’s attorney asked whether Agent McCart was
a firearms collector and whether Agent McCart went to
firearm shows to look at firearm collections. Agent McCart
responded to both questions in the negative. The Govern-
ment then engaged in the following colloquy with Agent
McCart:
Q. . . . . [A]s a part of your training and experience . . .
have you been trained and have you dealt with the type
of firearms that are collector’s items based on their rar-
ity and/or their value?
A. Yes, I have.
Q. And also as part of your training and experience, do
you also receive information about firearms that are
commonly used other than as collector’s items, that is,
used for other purposes?
....
A. Yes, I have.
Q. And based upon that training and experience that
you’ve had, do you believe that you can tell the jury
whether or not the firearms that are before the jury now,
that is, Exhibits 35 through 199, are collector’s items, or
are they firearms used for other purposes?
A. Yes.
Tr.III at 418-19. After the voir dire, the district court over-
ruled Mr. Conn’s objection based on Agent McCart’s qual-
ifications and lack of a proper foundation. Agent McCart
testified that he did “not believe that these firearms are
collector’s items. There are a couple that would have value
to them, but the majority of them, no, are not collector’s
items.” Tr.III at 420.
The jury convicted Mr. Conn on Count 6 of the indict-
ment, which concerned the April 24, 2000 sale to Detective
6 No. 01-3506
Shoemaker and Agent Jaraczeski. Mr. Conn was found not
guilty on Counts 1 through 5 of the indictment. The district
court sentenced Mr. Conn to two years of imprisonment and
two years of supervised release.
II
DISCUSSION
Mr. Conn was convicted of “willfully,” 18 U.S.C. § 924(a)(1)(D), “engag[ing] in the business of . . . dealing in
firearms” without a license, 18 U.S.C. § 922(a)(1)(A). The
statute defines a “dealer” as “any person engaged in the
business of selling firearms at wholesale or retail, any per-
son engaged in the business of repairing firearms or of
making or fitting special barrels, stocks, or trigger mecha-
nisms to firearms, or any . . . pawnbroker.” 18 U.S.C.
§ 921(a)(11). A person “engaged in the business” of firearms
dealing is one “who devotes time, attention, and labor to
dealing in firearms as a regular course of trade or business
with the principal objective of livelihood and profit through
the repetitive purchase and resale of firearms.” 18 U.S.C.
§ 921(a)(21)(C). “[A] person who makes occasional sales,
exchanges, or purchases of firearms for the enhancement of
a personal collection or for a hobby, or who sells all or part
of his personal collection of firearms,” is not a firearms
dealer. Id. Mr. Conn argued at trial that he was a collector of
firearms who made periodic purchases and sales of firearms
to enhance his personal collection and, therefore, he was not
a firearms dealer within the statute’s definition.
A.
Mr. Conn first challenges his conviction on the ground
that Agent McCart’s testimony was admitted improperly
No. 01-3506 7
under Federal Rule of Evidence 702, which governs expert
testimony. Specifically, Mr. Conn argues that the Govern-
ment failed to demonstrate that Agent McCart was qualified
to render an expert opinion about the nature of Mr. Conn’s
stockpile of firearms. Mr. Conn’s principal argument was
that his firearms were a personal collection, which he is
entitled to augment through periodic purchases and sales.
Agent McCart testified that, based on his training and
experience as an ATF agent, Mr. Conn’s firearms were not
collector’s items. On appeal, the Government argues that
Agent McCart did not need to be qualified as an expert
because his testimony was not offered as expert testimony
under Rule 702, but as lay opinion testimony permitted by
Rule 701. We review the district court’s decision to admit
evidence for an abuse of discretion. See United States v.
Inglese, 282 F.3d 528, 538 (7th Cir. 2002).
1.
We first address the question whether Agent McCart’s
testimony is expert testimony subject to the constraints of
Rule 702. The record is ambiguous as to whether the district
court, in admitting the evidence, relied on Rule 701 or 702.
The Government did not formally seek to admit Agent
McCart’s testimony under Rule 702, and the district court
did not make clear whether it was admitting the testimony
1
under Rule 701 or Rule 702. However, a recent amendment
to the Rules of Evidence makes clear that a submission of
the sort at issue here must meet the criteria of Rule 702. Rule
1
The district court did include a jury instruction about expert tes-
timony. It is not clear whether that instruction applied to Inspector
Lisa Laughlin, who testified about the federal licensing scheme for
firearms dealers, Agent McCart, or both.
8 No. 01-3506
701 was amended, effective December 1, 2000, to emphasize
that lay opinion testimony is limited to those observations
of a lay witness that are “not based on scientific, technical,
or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701. The advisory committee notes state
that
Rule 701 has been amended to eliminate the risk that
the reliability requirements set forth in Rule 702 will be
evaded through the simple expedient of proffering an
expert in lay witness clothing. . . . [A] witness’ testi-
mony must be scrutinized under the rules regulating ex-
pert opinion to the extent that the witness is providing
testimony based on scientific, technical, or other special-
ized knowledge within the scope of Rule 702.
Fed. R. Evid. 701, 2000 advisory committee note. The Ad-
visory Committee notes also give a rather plenary explana-
tion for this amendment. Before the 2000 amendment to
Rule 701, some courts had become more lenient in the ad-
mission of lay opinion on subjects appropriate for expert
testimony. See 29 Charles Alan Wright & Victor James Gold,
Federal Practice & Procedure: Evidence, § 6253 at 119-23 (1997).
The amendment was designed to make clear that courts
must scrutinize witness testimony to ensure that all testi-
mony based on scientific, technical or other specialized
knowledge is subjected to the reliability standard of Rule
702.
Earlier decisions have explained helpfully the difference
between lay and expert testimony. Lay opinion testimony
most often takes the form of a summary of first-hand sen-
sory observations. See Asplundh Mfg. Div. v. Benton Harbor
No. 01-3506 9
2
Eng’g, 57 F.3d 1190, 1196-1202 (3d Cir. 1995). The opinion
provides the jury with a more complete picture than would
be provided by a recitation of each component fact. “Lay
opinion testimony is admissible only to help the jury or the
court to understand the facts about which the witness is
testifying and not to provide specialized explanations or
interpretations that an untrained layman could not make if
perceiving the same acts or events.” United States v. Peoples,
250 F.3d 630, 641 (8th Cir. 2001). Expert opinion, by contrast,
need not be based on first-hand knowledge of the facts of
the case. It brings to an appraisal of those facts a scientific,
technological or other specialized knowledge that the lay
person cannot be expected to possess.
We must conclude that the testimony offered by Agent
McCart about the nature of Mr. Conn’s firearms collection
was expert testimony. During voir dire, the Government
asked Agent McCart to base his answer on his “training and
experience” as an ATF agent. He was not asked to summa-
rize his observations in the form of an opinion; rather, he
was asked to view Mr. Conn’s firearms collection in light of
2
In Asplundh, a case cited favorably by the Advisory Committee, the
Third Circuit offered this helpful summary of lay opinion testimony:
The prototypical example of the type of evidence contemplated
by the adoption of Rule 701 relates to the appearance of persons
or things, identity, the manner of conduct, competency of a per-
son, degrees of light or darkness, sound, size, weight, distance,
and an endless number of items that cannot be described
factually in words apart from inferences. . . . Other examples of
this type of quintessential Rule 701 testimony include identifica-
tion of an individual, the speed of a vehicle, the mental state or
responsibility of another, whether another was healthy, the
value of one’s property.
Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196-98 (3d
Cir. 1995) (Becker, J.).
10 No. 01-3506
his training and experience with firearms. Even a lay person
familiar with firearms in general would not have the ex-
pertise to distinguish between firearms that are collector’s
items and firearms that are not. Agent McCart’s opinion was
unnecessary as a descriptive tool. The jury was shown pic-
tures of Mr. Conn’s firearms, the number and type of fire-
arms were entered into evidence, and Agent McCart de-
scribed the firearms in detail while narrating a videotape
recorded during the ATF search of Mr. Conn’s house. Agent
McCart was assisting the jury by applying his years of ATF
experience to give the jurors a better understanding of the
nature of Mr. Conn’s firearms stash. Agent McCart’s tes-
timony was not based only on his observations; rather, the
testimony was based on his accumulated expertise obtained
3
through experience and training. He was asked to draw
upon his accumulated knowledge and to provide informa-
tion to the jury about the appropriate characterization of Mr.
3
Compare United States v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001)
(testimony of FBI agent about code words used in recorded calls was
admissible as lay opinion testimony when it was based on his “ex-
tensive participation in the investigation of this conspiracy, . . .
[which] allowed him to form opinions concerning the meaning of
certain code words used in this drug ring based on his personal per-
ceptions”) (emphasis added), with United States v. Riddle, 103 F.3d
423, 429 (5th Cir. 1997) (bank examiner went beyond “straightfor-
ward conclusions from observations informed by his own experi-
ence . . . [and] functioned not as a witness relaying his own observa-
tions so much as a knowledgeable bank examiner who could provide
the jury with an overview of banking regulations and practices” and
therefore his testimony could not be offered under Rule 701). Here,
Agent McCart is not testifying about what he learned about Mr.
Conn’s firearms collection during Agent McCart’s investigation of
Mr. Conn; rather, he is offering an opinion about the nature of
firearms in general and how Mr. Conn’s specific collection fits into
this picture.
No. 01-3506 11
Conn’s firearms: would the firearms market consider these
weapons to be collector’s items or suitable only for use as
firearms? Testimony of this nature is expert testimony; it
could have been offered by any individual with specialized
knowledge of the collector’s market in firearms. It did not
have to be offered by one of the investigating agents.
2.
Having determined that Agent McCart’s expert testimony
is subject to Rule 702, we must determine whether that tes-
timony met the criteria set forth in that Rule. As we have
noted earlier, Rule 702 has been amended to reflect the
Supreme Court’s decision in Daubert v. Merrell Dow Phar-
maceuticals, Inc., 509 U.S. 579 (1993). See Fed. R. Evid. 702,
2000 advisory committee note. Expert testimony is admissi-
ble if offered by “a witness qualified as an expert by knowl-
edge, skill, experience, training, or education,” and “if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed. R. Evid. 702.
With respect to the first prong of this test, Agent McCart
testified that, as an ATF agent, he was trained to deal with
and had dealt with firearms that are collector’s items. Agent
McCart also indicated that he received “information about
firearms that are commonly used other than as collector’s
items.” Tr.III at 419. Mr. Conn nevertheless argued at trial
that Agent McCart was not qualified because he was not a
firearms collector and did not go to firearms shows to de-
termine what firearms were collected. Although one might
become an expert in firearm collections in the manner sug-
gested by the defense, it is not the only path to such a
qualification. Rule 702 is flexible and permits a witness to be
12 No. 01-3506
qualified as an expert if he is “qualified as an expert by
knowledge, skill, experience, training, or education.” Fed. R.
Evid. 702. We believe that the record adequately establishes
that Agent McCart’s opinions, based on his accumulated
training and experience in dealing with firearms that were
collector’s items and those that were not, combined with his
inspection of the firearms found in Mr. Conn’s stash, were
grounded in sufficient facts and data.
The second prong of the test set forth in Rule 702 requires
that the testimony be the product of reliable principles and
methods. In Daubert, the Supreme Court set forth five fac-
tors to guide a court in assessing the reliability of scientif-
ic expert testimony. Those now-familiar factors are: (1)
“whether a theory or technique . . . can be (and has been)
tested”; (2) “whether the theory or technique has been
subjected to peer review and publication”; (3) “the known
or potential rate of error”; (4) “the existence and mainte-
nance of standards controlling the technique’s operation”;
and (5) whether the technique or method has met with gen-
eral acceptance. Daubert, 509 U.S. at 593-94. In Kumho Tire
Company, Ltd. v. Carmichael, 526 U.S. 137, 147 (1999), the
Supreme Court held that the Daubert’s “gatekeeping” ob-
ligation applies not only to “scientific” expert testimony, but
to all kinds of expert testimony. Indeed, as the Court noted,
Rule 702 makes no distinction between “scientific” knowl-
edge and other forms of specialized knowledge. See id. At
the same time, the Supreme Court acknowledged that, al-
though the fundamental task of the trial court remains the
same no matter what sort of specialized information is prof-
fered, the Daubert factors set forth above ought not be con-
sidered a definitive check list suitable for the evaluation of
all kinds of evidentiary submissions involving specialized
knowledge. See id. Using the Daubert factors as a point of
departure, the district court is free to fashion an approach
more precisely tailored to an evaluation of the particular
No. 01-3506 13
evidentiary submission before it. In reviewing that determi-
nation, we are to apply the deferential abuse-of-discretion
standard. See Kumho Tire, 526 U.S. at 141.
In applying these principles, we have said that “the meas-
ure of intellectual rigor will vary by the field of expertise
and the way of demonstrating expertise will also vary.”
Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996).
Indeed, we have noted specifically that “genuine expertise
may be based on experience or training.” Id. As we pointed
out in United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001),
the Advisory Committee notes to Rule 702 specifically
note that “[i]n certain fields, experience is the predominant,
if not the sole, basis for a great deal of reliable expert tes-
timony.” Fed. R. Evid. 702, 2000 advisory committee note.
Earlier cases reflect that courts of appeals have sanctioned
the reliance of trial courts on established law enforcement
methodologies to fulfill the mandate of Rule 702. For in-
stance, expert testimony has been admitted frequently in
firearms prosecutions to establish that the firearm in ques-
tion traveled in interstate commerce. See, e.g., United States
v. Corey, 207 F.3d 84, 85, 88-89 (1st Cir. 2000); United States v.
Vincent, 20 F.3d 229, 236-37 (6th Cir. 1994). Of particular
help in the present case are those situations in which trial
courts have admitted the testimony of law enforcement
officers about the modus operandi of narcotics dealers. See,
e.g., United States v. Ortega, 150 F.3d 937, 943 (8th Cir. 1998).
Our circuit has permitted regularly such an approach. See
United States v. Doe, 149 F.3d 634, 636-38 (7th Cir. 1998);
United States v. Hubbard, 61 F.3d 1261, 1274-75 (7th Cir.
1995); United States v. Lipscomb, 14 F.3d 1236, 1239, 1242 (7th
Cir. 1994); see also Walter G. Amstutz & Bobby Marzine
Harges, Evolution of Controversy: The Daubert Dilemma: The
Application of Daubert v. Merrell Dow Pharmaceuticals, Inc.
to Expert Testimony of Law Enforcement Officers in Narcotics
Related Cases, 23 U. Haw. L. Rev. 67, 100-07 (2000) (collecting
14 No. 01-3506
cases). Experts in narcotics dealing typically are qualified
based upon their field experience. See United States v. Allen,
269 F.3d 842, 846 (7th Cir. 2001); United States v. Griffith, 118
F.3d 318, 321-22 (5th Cir. 1997). Courts have looked to the
agent’s years of experience as well as the number of narcot-
ics cases in which the agent was involved. See Griffith, 118
F.3d at 322-23; Hubbard, 61 F.3d at 1274; United States v.
Cotton, 22 F.3d 182, 185 (8th Cir. 1994). In these cases, ex-
perienced narcotics investigators applied the knowledge
gained through years of experience and, essentially, de-
scribed for the jury what they knew about narcotics dealers.
Agent McCart’s testimony is based on a similar methodol-
ogy. He was asked to appraise, on the basis of his past
experience and training, the value of the firearms found in
Mr. Conn’s residence. On this record, we cannot say that the
district court abused its discretion in determining that the
evidence ought to be allowed. The situation here is not,
however, a paradigmatic example of how such an issue
ought to be developed at trial. The Government never actu-
ally sought to have the agent certified as an expert and,
indeed, on appeal, has argued that his testimony was not
expert testimony. We do not believe that this infirmity is
fatal because the agent was required to state the basis of his
expertise, and the defense counsel was given ample oppor-
tunity to examine the agent about his background before the
court determined to go forward with the testimony. See
Griffith, 118 F.3d at 322.
We also note that the agent’s description of his training
and experience was somewhat less than specific. For ex-
ample, Agent McCart was asked whether his training and
experience dealt with firearms that are collector’s items. He
responded in the affirmative, but no information was elic-
ited about the nature of his training, or how many cases he
had worked, or other details of his experience. The defense
nevertheless had the opportunity during voir dire to cross-
No. 01-3506 15
examine him about his experience and training, but chose to
limit its questions to Agent McCart’s status as a firearms
collector and to the nature of his trips to firearms shows.
Had the defense had other concerns about the quality of
Agent McCart’s training, the quantity of his experience, or
the methodology that he employed in reaching his assess-
ment of Mr. Conn’s firearms, it could have raised those
questions during voir dire. In sum, we must conclude that
the agent employed a recognized and valid methodology
when he characterized the nature of Mr. Conn’s firearms on
the basis of his earlier training and experience with both
collectible firearms and those that were not.
The third prong of the Rule 702 analysis requires that the
expert witness apply his methodology to the facts of the
case with accuracy. Although the entire record on the ad-
missibility of this testimony is less than well-developed, we
cannot say that the district court abused its discretion in this
regard. The defense chose not to challenge the actual ap-
plication of Agent McCart’s training and experience to the
facts of the case, although it had an opportunity to do so.
Nor does the record contain any hint that the agent based
his opinions on anything other than the factors that he
articulated. The agent was never asked why, on the basis of
his training and experience, he believed that the firearms
that had been recovered from Mr. Conn’s residence could
not be characterized as collector’s items. In light of the
defense’s decision not to explore these matters further when
given the opportunity to do so by the district court before
proceeding with the testimony at issue, we cannot say that
the district court made a fatal misstep in this regard.
B.
Mr. Conn also submits that his conviction must be over-
turned because of the alleged inconsistency between the
16 No. 01-3506
jury’s verdicts on Counts 1-5 and its verdict on Count 6. He
further maintains that the Government did not present suf-
ficient evidence that Mr. Conn’s firearms were not a per-
sonal collection. Mr. Conn did not move for a new trial un-
der Federal Rule of Criminal Procedure 33, nor did he move
for a judgment of acquittal under Rule 29(c). Therefore, we
review these contentions for plain error. See United States v.
Olano, 507 U.S. 725, 732-34 (1993); United States v. Nobles, 69
F.3d 172, 182-83 (7th Cir. 1995).
“Inconsistent verdicts in a criminal case are not a basis
for reversal of a conviction or the granting of a new trial.”
United States v. Reyes, 270 F.3d 1158, 1168 (7th Cir. 2001). As
the Supreme Court has held, “inconsistent verdicts . . .
should not necessarily be interpreted as a windfall to the
government at the defendant’s expense.” United States v.
Powell, 469 U.S. 57, 65 (1984). The jury may have reached
such a verdict “through mistake, compromise or lenity.” Id.Furthermore, in this case, it is not even clear that the ver-
4
dicts are inconsistent.
Whether the verdicts are inconsistent or not, the jury
heard ample evidence on which to base its conviction. The
Government presented evidence of six undercover firearms
purchases over the course of three months. The jury heard
the testimony of Rodney Pollard, who described his negotia-
tions with Mr. Conn over the purchase and sale of several
4
The Government argues, for example, that the jury could have
concluded that, after hearing evidence about the five other under-
cover firearms purchases, that it was only after the sixth sale that Mr.
Conn met the statutory definition of a firearms dealer. In that case,
the verdicts would not be inconsistent because the jury would have
found that Mr. Conn was not a dealer on each of the first five occa-
sions, but that his conduct had reached the point that he met the
statutory definition on April 24, 2000.
No. 01-3506 17
different firearms. Pollard also testified that he witnessed
other individuals coming to Mr. Conn’s home to make pay-
ments on an earlier firearms purchase. The Government
presented evidence that Mr. Conn was willing to sell a
firearm to Detective Shoemaker, even after Shoemaker told
him that he was a convicted felon. Alberta Mohler testified
about her transactions with Mr. Conn, which included
purchases for her boyfriend and the sale of six firearms to
Mr. Conn over several years. Finally, the jury heard the tes-
timony of Agent McCart who testified about the volume
and nature of Mr. Conn’s firearm collection and the many
firearms seized from Mr. Conn’s “gun room.” On the basis
of this evidence, the jury was entitled to conclude that Mr.
Conn was willfully dealing in firearms without a license in
violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D).
Conclusion
The district court did not abuse its discretion in admitting
the testimony of Agent McCart. There was ample evidence
to support Mr. Conn’s conviction and any inconsistency be-
tween the verdicts does not require reversal. Therefore, the
judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-16-02