United States v. Young, Roy ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1294
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROY YOUNG,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 052—Rebecca R. Pallmeyer, Judge.
____________
ARGUED NOVEMBER 1, 2002—DECIDED DECEMBER 4, 2002
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge. On March 19, 2001, the federal
government charged the Defendant, Roy Young, under a
three-count indictment; count 1 charged Young with
kidnaping Beatrice Patrick on or about January 14 to 18,
2001, a violation of 18 U.S.C. § 1201; count 2 charged
him with interstate domestic violence against Patrick
on or about January 14, 2001, in violation of 18 U.S.C.
§§ 2261(a)(1) and (b)(3); and finally, count 3 charged Young
with unlawfully using or carrying a firearm during and
in relation to the commission of a crime of violence on or
about January 14, 2001, in contravention of 18 U.S.C.
§ 924(c)(1)(A). Young was later charged under a Super-
2 No. 02-1294
seding Indictment, alleging the same three offenses, though
altering the wording in count 2 slightly.
A jury found Young not guilty of the kidnaping charge
in count 1, but found him guilty of interstate domestic
violence and unlawful use of a firearm under counts 2
and 3. The district court sentenced Young to consecutive
five-year terms of imprisonment for counts 2 and 3. Young
raises four issues on appeal: 1) whether the district court
abused its discretion by admitting testimony from the
government’s expert regarding common patterns among
domestic abuse victims; 2) whether the district court erred
in admitting Patrick’s grand jury testimony under Rule
801(d)(1)(A) of the Federal Rules of Evidence; 3) wheth-
er the government sustained its burden of proof that
Young used or carried a firearm in violation of 18 U.S.C.
§ 924(c)(1)(A); and finally 4) whether the district court
abused its discretion in its response to a question from the
jury while it was deliberating. We affirm the decision of
the district court.
BACKGROUND
A. Events Prior to and Surrounding January 14,
2001
Young and Patrick began dating in 1989, when Young
was fifteen years old and Patrick was seventeen years old.
During their ten- to eleven-year relationship, the couple
had three children but never married. The relationship
was marred by domestic violence, and in April of 2000
Patrick obtained an Order of Protection against Young.
Though it appears the relationship was an off-and-on ar-
rangement, the two were at least in touch in January of
2001, when Patrick sent word to Young that she needed
money from him. At that time, Patrick lived in the Altgeld
Gardens housing development in Chicago, Illinois, while
Young resided in Michigan City, Indiana.
No. 02-1294 3
On the evening of January 14, 2001, Young drove with
a friend, Forknewin Sidney, and two others from his home
in Michigan City to the Altgeld Gardens development. After
dropping Sidney off at Sidney’s mother’s home, Young
located Patrick at Theresa Miller’s home, a neighbor of
Patrick’s. In addition to Patrick, Young also found George
Terry present. Patrick previously had told Terry that if
Young caught the two of them together, he would kill
them both.
When Young arrived at the apartment, he became vis-
ibly agitated at Terry’s presence. Young kept one hand
in his pocket, which apparently contained a heavier object.
Terry fled the apartment, and Young proceeded upstairs
and confronted Patrick by grabbing her and asking wheth-
er she had been “messing around” with Terry. This argu-
ment escalated and Young punched Patrick near her eye
and told her to leave with him. The two eventually tum-
bled down the stairs from the second floor of Miller’s
home while struggling. Miller and her nephew broke the
two apart and ordered both of them to leave, for fear
of damage to Miller’s apartment. Patrick pleaded with
Miller to allow her to stay because Patrick said she could
not breathe, but Miller insisted that she leave.
The argument continued outside, and Patrick eventually
entered Young’s car and drove to a nearby wooded area,
where Patrick’s car was parked. Once there, Young con-
tinued to yell at Patrick and used a car jack to smash
the front passenger window of her car. Patrick also tes-
tified before the grand jury that Young said “Don’t play
with me” and “I’ll kill you” at this time. Young then drove
both of them back to Patrick’s apartment and proceeded
upstairs into her bedroom, where the couple’s three chil-
dren were present. Young told the children to get out of
the room and told Patrick that she was coming with
him, but Patrick refused. The two continued to argue,
with Patrick refusing to go until Young picked up a plas-
4 No. 02-1294
tic milk crate and threatened to hit Patrick if she did not
go. Patrick eventually left the apartment with Young and
got into his van.
Young then drove Patrick, Sidney, and his two other
friends to Michigan City, Indiana. Though Patrick tes-
tified at trial that she was not “forced” to leave with
Young, she testified before the grand jury that she feared
for her life if she did not go with him. During the drive
to Indiana, Patrick held her head as if in pain and spoke
to no one, except to ask for a cigarette on one occasion.
When they arrived at Young’s apartment, Patrick walked
straight into his bedroom with Young close behind. Once
inside, Young began beating Patrick with his fists, kick-
ing her, and choking her. This scenario replayed itself
off and on over the ensuing two to three hours. On at
least one occasion, Patrick called out to Young’s friends,
who were in the other room, but no one intervened. Pat-
rick did not leave the bedroom that first night.
B. January 15-17, 2001
In fact, Patrick went nowhere over the next four days;
Young kept her in the apartment, continued to beat
her, and threatened to kill her. Young allowed Patrick to
go into the bathroom and living room but not to leave
the apartment. Patrick was able to phone her employer
at some point by sneaking a call with Young’s cellular
phone, but she did not call the police. She had never been
to the apartment and apparently did not know where
she was. Young also kept two pit bulls in the apartment,
which got loose at one point and forced Patrick to jump
behind a stereo speaker for safety.
During these four days, Young’s friends apparently
continued to stay in the apartment. At one point, Sidney
witnessed Young walk out of the bedroom (where Sidney
had heard Young beating Patrick) with a gun in his waist-
No. 02-1294 5
band. Young asked Sidney to hide the gun for him, but
Sidney refused. At trial, Patrick testified that Young
never had a gun, but before the grand jury she re-
counted that he began loading bullets into the gun while
in the bedroom and that he struck her in the face with it.
C. January 18-19, 2001
After four days of abuse, Patrick convinced Young to
drive her back to Chicago so that she could sign some
papers at work, pick up her paycheck, and see her children.
Just as on the trip to Indiana, Young took Sidney and
two other friends with him as he drove Patrick back to
her grandmother’s apartment in Altgeld Gardens. Once
inside, Patrick locked the door and called 911, telling the
operator that she had been kidnaped for several days
and just released. Young banged on the door to gain entry,
which the 911 operator heard over the phone. Patrick
also made a second call to 911 and gave a description
of Young and his van, told the operator that she had been
held against her will, and said that Young had a gun.
After calling 911, Patrick called her aunt, Shirley
Fields, and pleaded with Fields to come and get her. Pat-
rick told Fields that Young tried to kill her and that
she ran from him. Fields could hear Young banging on
the door outside and swearing at Patrick. Fields arrived
at the apartment shortly thereafter but did not see Young
anywhere. Fields found Patrick in her grandmother’s
apartment with two black eyes, a cut mouth, swelling on
her head, and marks on her neck where Patrick said
Young choked her. Fields also saw blood all over Patrick’s
clothing.
Fields took Patrick to nearby Jackson Park Hospital,
where Patrick informed the attending nurse and doctor
that she had been kidnaped and beaten by Young, in-
cluding the fact that Young struck her in the face with
6 No. 02-1294
a gun. Patrick also told them that she lost consciousness
at one point and was forced to have sex. The medical
staff noted bruising and tenderness on her head, eyes,
forehead, cheek, chin, neck, and back.
That evening FBI agents interviewed Patrick in the
hospital and took photos of her injuries. Patrick told
them Young forced her to go to Indiana with him, that
he beat her, and that she went with him because she
thought he had a gun by the way he held his hand in his
pocket. She also informed them that he threatened her
with the gun while in Indiana on several occasions and
hit her in the face with it. Police officers found Sidney
that evening and interviewed him as well. Sidney later
told Young of the interview, at which time Young in-
structed Sidney not to tell anyone about the gun.
On January 19, 2001, FBI agents went to Young’s apart-
ment, but he was not home. Upon seeing the police, Chris-
tine Smith, a friend of Young’s, called to warn him, and
Young subsequently spent the night at her home. The
police searched Young’s home and recovered forty-three
bullets of various calibers but no gun. The next day,
Young agreed to sell Smith’s boyfriend a gun, and Young
had a friend retrieve it from under the tree where Young
had hidden the gun.
FBI agents arrested Young on January 22, 2001, finding
him hiding between a mattress and a wall in a friend’s
apartment. Young helped police locate Sidney and the
other individuals present during the kidnaping, who
were all arrested as well. The two other individuals were
released without being charged, and Sidney testified
against Young pursuant to a grant of immunity.
D. Young’s Trial
During the trial, the government called Patrick as a
witness. As is not entirely uncommon with victims of do-
No. 02-1294 7
mestic abuse, she denied most of the allegations against
Young and recanted her story about the kidnaping and
abuse. Patrick testified that she still loved Young and
specifically denied that he threatened her before taking
her to Indiana, that he forced her to go with him to
Indiana, and that he had a gun. The government then
treated Patrick as a hostile witness and introduced her
grand jury testimony, in which she affirmed the details
recited above about the trip to Indiana, the abuse, and
Young’s gun.
Patrick’s grand jury testimony tracked a written state-
ment prepared during a lengthy meeting with govern-
ment prosecutors. Before the grand jury, she testified
that she had an opportunity to review and correct the
statement, which she utilized. The government ques-
tioned her from the statement, and following her testi-
mony she affirmed that all of her answers were correct.
Patrick also affirmed that her testimony was entirely
consistent with her statements to the police, the FBI
agents, the medical personnel, the 911 operators, and her
aunt.
The government also called Dr. Ann Wolbert Burgess,
a psychiatric mental health nurse specializing in crime
victims, as an expert to explain Patrick’s recantation. Dr.
Burgess has more than forty years of nursing exper-
ience and holds a doctorate in nursing science as well
as both master and bachelor of science degrees. She is
a Professor of Nursing at Boston College and has written,
among other things, over 114 articles in various profes-
sional journals and publications on topics including fo-
rensic nursing, rape, and domestic violence. Dr. Burgess
was also the chair of a group from the National Research
Council Institute of Medicine that prepared a book at
Congress’ request entitled Understanding Violence Against
Women.
8 No. 02-1294
Young objected to Dr. Burgess’ testimony, but following
a full Daubert hearing, the court ruled that Dr. Burgess
could testify. The doctor stated that victims of domestic
violence commonly recant their accusations and that vic-
tims of such abuse have a limited ability to perceive
means of escape. She also testified that Patrick exhi-
bited this not uncommon behavior pattern. In forming
her opinion, Dr. Burgess had reviewed FBI reports, Chi-
cago Police Department reports detailing various confron-
tations between Patrick and Young, Patrick’s grand jury
testimony, the Order of Protection Patrick obtained against
Young, the criminal history report on Young, letters be-
tween Young and Patrick, the defense counsel’s notes of
an interview with Patrick, and recordings of telephone
conversations between Young and Patrick while Young
was in pre-trial detention. Dr. Burgess also spent over
an hour interviewing Patrick personally.
During deliberations, the jury sent a question to the
district judge asking for clarification on the meaning of
“during” with respect to count 3’s charge of unlawfully
using or carrying a firearm during and in relation to the
commission of a crime of violence on or about January 14,
2001, in contravention of 18 U.S.C. § 924(c)(1)(A). With re-
spect to this count, the court originally instructed the
jury that the government must prove the following be-
yond a reasonable doubt: 1) that Young committed the
crime of kidnaping as charged in count 1 or the crime
of interstate domestic violence as charged in count 2; and
2) that on or about January 14, 2001, Young knowingly
used or carried a firearm during and in relation to the
offense charged in counts 1 or 2.
The jury sent the following question to the district judge
during deliberations:
Dear Judge Pallmeyer: We, the jury, would like fur-
ther clarification of the terms “during” and “in relation
No. 02-1294 9
to,” the second part of Count 3. We, the jury, agree
on the first part of Count 3. However, there has been
much discussion on when “during” begins and ends.
Question: If a person is convicted of interstate domestic
violence, does the “during” begin when the defendant
crosses state lines or does that time frame begin when
the violence first occurs in Michigan City, Indiana?
Thus, when does it end?
Young asked that the jury be referred to the already
given instructions, while the government and district judge
felt a clarification was necessary. The court, accordingly,
sent the following written clarification to the jury: “Dear
Jurors: ‘During and in relation to the offense charged in
Counts 1 or 2’ means at any point within the offense
conduct charged in Counts 1 or 2.”
The jury ultimately acquitted Young of the kidnaping
charge in count 1 but convicted him of the charges in
counts 2 and 3. In a special interrogatory on count 2,
the jury stated that it did not find beyond a reasonable
doubt that Young “used” a dangerous weapon in connec-
tion with the interstate domestic violence charge.1 The
district court, thus, sentenced Young to consecutive, five-
year prison terms, for a total of ten years. Young appeals
the district court’s decision to admit the expert testimony
of Dr. Burgess as well as Patrick’s grand jury testimony.
Young further appeals the sufficiency of the evidence on
his conviction for use of a firearm during and in relation
to a crime of violence and the district court’s supplemen-
tal instruction in response to the question from the jury.
1
The court submitted this special interrogatory to the jury
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), because
an affirmative answer to the special interrogatory could have
increased Young’s maximum sentence from five to ten years un-
der 18 U.S.C. § 2261(b)(3), (4).
10 No. 02-1294
ANALYSIS
A. Expert Testimony on Patterns Among Domestic
Abuse Victims
We review the district court’s implementation of the
Daubert framework with respect to the admission of ex-
pert testimony de novo. Once we are convinced that the
district court properly applied the Daubert framework,
however, we review the decision to admit or exclude the
expert testimony for an abuse of discretion. United States
v. Allen, 269 F.3d 842, 845 (7th Cir. 2001).
According to Rule 702 of the Federal Rules of Evi-
dence, “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evi-
dence or to determine a fact in issue,” a properly qualified
expert may testify as to their opinion on the matter. FED. R.
EVID. 702. That testimony must also be based on sufficient
facts, be the product of reliable principles and methods,
and reflect reliable application of those methods to the
facts. Id. It is the job of the district court to ensure that
the expert’s opinion is reliable and relevant to the case,
and thus, the district court is given broad discretion to do
so. Allen, 269 F.3d at 846.
Young does not argue that the district court improp-
erly qualified Dr. Burgess as an expert witness. We must
determine, therefore, whether the methodology used by
Dr. Burgess to arrive at her opinions was reliable and
relevant to this case. Young argues that Dr. Burgess’
methodology was not reliable because: a) Dr. Burgess
formed her opinion before meeting with Patrick; b) Dr.
Burgess reached her conclusion about Patrick based up-
on “anecdotal” evidence of other battered women; and c)
Dr. Burgess did not interview Patrick’s friends and family.
The Supreme Court laid out several factors in Daubert
that serve as a starting point for determining whether
an expert’s opinion is based upon reliable methodology.
No. 02-1294 11
Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579, 593-94
(1993). The Court later made clear in Kumho Tire, however,
that “the factors [Daubert] mentions do not constitute
a ‘definitive checklist or test.’ ” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 150 (1999) (emphasis in original);
see also United States v. Conn, 297 F.3d 548, 555-56 (7th
Cir. 2002). Thus, the Daubert inquiry must be connected
to the particular facts of the case. Kumho Tire, 526 U.S. at
150; Conn, 297 F.3d at 555-56.
Among the factors to consider, the expert witness’s
experience in a particular field is often quite relevant
in determining the reliability of her opinion. See Conn, 297
F.3d at 556. In United States v. Allen, this Court upheld
the admission of expert testimony in a drug trafficking
case by a police officer with twenty-six years of experience,
thirteen of which were with the DEA. Allen, 269 F.3d
at 846. The expert in that case based his opinion not only
on his extensive experience investigating over 200 drug
cases but also on a full examination of the relevant po-
lice reports. Id.
Beyond considering the reliability of the expert’s opin-
ion, we must also examine its helpfulness to the jury. FED.
R. EVID. 702. On this issue, two cases from our sister Cir-
cuits are most enlightening and highly relevant. In United
States v. Alzanki, the First Circuit upheld the defend-
ant’s conviction for holding and conspiring to hold a house-
hold employee in involuntary servitude. United States
v. Alzanki, 54 F.3d 994, 1009 (1st Cir. 1995). In so holding,
the court also affirmed the admission of expert testimony
by the same Dr. Burgess who testified in Young’s case,
deeming it helpful to the jury. Id. at 1005-06.
As in Young’s case, Dr. Burgess based her testimony in
Alzanki on the patterns abuse victims generally exhibit
and whether the victim in that case exhibited those pat-
terns. Id. at 1006. The court noted that Dr. Burgess’
12 No. 02-1294
expertise focused on victims of sexual abuse but that
she also researched comparable behavior in victims of non-
sexual abuse in “unequal power” relationships (i.e.—bat-
tered spouses and children). Id. The First Circuit re-
viewed the admission of Dr. Burgess’ testimony under
an abuse of discretion standard, as we do here, and con-
cluded that her testimony “was ‘reasonably likely’ to as-
sist the jury in understanding and assessing the evidence,
in that the matter at issue was highly material, some-
what technical, and beyond the realm of acquired knowl-
edge normally possessed by lay jurors.” Id.
Similarly, in Arcoren v. United States, the Eighth Cir-
cuit affirmed the admission of expert testimony on “bat-
tered woman syndrome.” Arcoren v. United States, 929
F.3d 1235, 1241 (8th Cir. 1991). Like Patrick, the victim
in Arcoren recanted her allegations of rape and abuse
after describing her ordeal to police, medical professionals,
and investigators and testifying to those events before
a grand jury. Id. At the trial four months later, the vic-
tim stated that she did not remember her statements be-
fore the grand jury and that she fabricated those state-
ments she could remember making. Id. The government
in Arcoren, as in Alzanki, called an expert psychologist
who worked with battered women for ten years and with
rape victims for fourteen years. Id. at 1239.
In affirming the admission of the expert testimony, the
Eighth Circuit noted that a “jury naturally would be
puzzled at the complete about-face [the victim] made, and
would have great difficulty in determining which version
of [the victim’s] testimony it should believe. If there were
some explanation for [the victim’s] changed statements,
such explanation would aid the jury in deciding which
statements were credible.” Id. at 1240. The court then
discussed how the expert testimony, strikingly similar to
that offered by Dr. Burgess in both Alzanki and Young’s
No. 02-1294 13
case, provides the explanation a jury needs in order to
properly weigh the victim’s trial testimony. Id.
Before this Court, Young initially argued that Dr. Bur-
gess’ methodology was unreliable because she arrived at
her conclusion before interviewing Patrick. To support
this argument, he points only to testimony from his ex-
pert witness that failing to interview Patrick first is not
sound. The jury, however, is free to credit whichever wit-
ness it sees fit. United States v. Woolfolk, 197 F.3d 900, 904
(7th Cir. 1999) Obviously, the jury did not find Young’s
expert persuasive, and it is not within the province of this
Court to determine otherwise. Id.
Young also argues that Clark v. Takata Co., 192 F.3d 750
(7th Cir. 1999), demonstrates that the district court abused
its discretion by admitting Dr. Burgess’ testimony be-
cause she arrived at her conclusion before interviewing
Patrick. Clark, however, is inapposite, as it dealt with
whether or not the proffered expert merely assumed the
fact he was being called to prove. Clark, 192 F.3d at 757. In
this case, not even Young disputes that he beat Patrick
for years. The government did not offer Dr. Burgess as
an expert on whether or not Young abused Patrick, but
rather, as an expert on how victims such as Patrick typi-
cally respond to such abuse. Furthermore, there is no le-
gal authority supporting the proposition that Dr. Burgess
must interview Patrick before forming her expert opinion.
Young’s final two arguments are as futile as the first.
Next, he claims that Dr. Burgess’ methodology was based
upon “anecdotal” evidence of other battered women; and
finally, he argues that her methodology was unsound
because she did not interview Patrick’s friends and fam-
ily. As for “anecdotal” evidence, Dr. Burgess is a highly
qualified psychiatric mental health nurse with over forty
years of experience. She specializes in crime victims and
has published well over 100 scholarly articles and other
14 No. 02-1294
writings on forensic nursing, rape, and domestic violence.
Her work is generally accepted in the mental health
profession. Even Young’s own expert agreed with Dr.
Burgess that abuse victims often recant their statements
to protect their abusers. Dr. Burgess’ background makes
it clear that she based her opinion in this case on her
extensive nursing experience as well as her academic
research on several hundred battered women. See Allen,
269 F.3d at 846 (relying, in part, on experience of police
officer to affirm admission of expert testimony).
Furthermore, Dr. Burgess reached her opinion after
conducting a thorough and full examination of the facts
in this case. We noted above the substantial evidence Dr.
Burgess reviewed in forming her opinion, including po-
lice and medical reports as well as communications be-
tween Patrick and Young. See id. (noting expert’s reliance
on police reports). And, lest we forget, Dr. Burgess also
spent over an hour interviewing Patrick personally. To
assert that Dr. Burgess’ opinion was based on “anecdotal”
evidence is patently inaccurate. That Dr. Burgess did not
also interview Patrick’s friends and family is of no con-
cern; it seems unlikely that they would disprove the
abuse Young dealt out to Patrick for over a decade.
Finally, given Patrick’s recantation at trial, we find that
Dr. Burgess’ expert opinion was helpful to the jury in
determining how to credit that testimony. We see no
reason to disagree with the First Circuit’s conclusion in
Alzanki that Dr. Burgess’ testimony is both reliable and
helpful in a case such as this one. The district court did
not abuse its discretion in admitting the expert testimony
of Dr. Burgess.
In a last-ditch effort, Young argues that Rule 403 of the
Federal Rules of Evidence prohibits the introduction of
Dr. Burgess’ testimony because the prejudicial effect of
asserting that Young battered Patrick outweighs the pro-
No. 02-1294 15
bative value of her testimony. See FED. R. EVID. 403. There
is no real issue disputing that Young beat Patrick dur-
ing the course of their relationship and over the days at
issue here. The evidence of the beatings was overwhelm-
ing, and Dr. Burgess’ testimony was highly probative as
to why Patrick recanted on the stand in light of her earli-
er statements.
B. Admission of Patrick’s Grand Jury Testimony
Next, we review the district court’s decision to admit
Patrick’s grand jury testimony under Rule 801(d)(1)(A) for
an abuse of discretion. United States v. Williams, 737 F.2d
594, 608 (7th Cir. 1984). Rule 801(d)(1)(A) of the Federal
Rules of Evidence provides that a statement is not hear-
say if the declarant testifies at trial, is subject to cross-
examination concerning the statement, and the statement
is “inconsistent with the declarant’s [trial] testimony, and
was given under oath subject to the penalty of perjury at
a trial, hearing, or other proceeding, or in a deposition.”
FED. R. EVID. 801(d)(1)(A). Young does not dispute that
Patrick testified at his trial, nor that she was subject to
cross-examination by defense counsel. It is equally obvi-
ous that Patrick’s trial testimony was inconsistent with
her grand jury testimony. Indeed, Patrick recanted her al-
legations of abuse against Young while on the witness
stand at his trial; what is commonly referred to as a
turncoat witness. See United States v. DiCaro, 772 F.2d
1314, 1322 (7th Cir. 1985). Finally, the grand jury testi-
mony satisfies the requirement that the prior inconsis-
tent statement be given under oath. Id.
Young’s primary argument, however, is that the district
court improperly limited his cross-examination of Patrick
by prohibiting him from impeaching her grand jury testi-
mony with hearsay statements she made the day after she
testified before the grand jury. He also submits that the
16 No. 02-1294
district court abused its discretion in admitting Patrick’s
grand jury testimony under Rule 801(d)(1)(A) because
it violated the Confrontation Clause of the Sixth Amend-
ment and was unfairly prejudicial under Rule 403 of the
Federal Rules of Evidence. None of these arguments
prevail.
First, Young agrees that Patrick was subject to cross-
examination at his trial and that cross-examination surely
took place. His complaint is that the district court improp-
erly limited this cross-examination because it prevented
him from impeaching the government’s impeachment of
Patrick by eliciting statements she made to a defense
investigator the day after her grand jury testimony. Ap-
parently, Patrick told Young’s investigator that the trip
to Indiana was “no kidnaping.” The statement, however,
did not impeach any of Patrick’s grand jury testimony
because Patrick did not actually tell the grand jury that
she had been “kidnaped.”
We find no abuse of discretion in the district court’s
ruling. Young had a right to cross-examine Patrick with-
in the rules of evidence, which he fully exercised. Young’s
proposed impeachment of Patrick’s grand jury testimony
sought to elicit a legal conclusion from Patrick about
whether Young’s conduct amounted to the kidnaping
charged in count 1. See United States v. Hach, 162 F.3d 937,
945 (7th Cir. 1998) (noting that answers in the form of a
legal conclusion amount to unhelpful opinion testimony).
In the event, Young’s attorney brought the sought-after
statement into evidence through the investigator. Finally,
Young was not convicted of kidnaping under count 1, so
that any possible error was harmless.
Young’s Confrontation Clause and Rule 403 arguments
are likewise without merit. It is well-settled law that
“the Confrontation Clause is not violated by admitting a
declarant’s out-of-court statements, as long as the declar-
No. 02-1294 17
ant is testifying as a witness and subject to full and effec-
tive cross-examination.” California v. Green, 399 U.S. 149,
158 (1970); DiCaro, 772 F.2d at 1326; Mason v. Duckworth,
74 F.3d 815, 819 n.3 (7th Cir. 1989).
Finally, Young relies on United States v. Doerr, 886 F.2d
944 (7th Cir. 1989), to assert his Rule 403 argument
that admission of Patrick’s grand jury testimony is unfair-
ly prejudicial. Young argues that the testimony does not
contain a long, narrative answer from Patrick and is sim-
ply her responses to leading questions from the govern-
ment that were not subject to cross-examination. He be-
lieves this pattern presents a problem because Patrick
has limited education and recanted much of that testi-
mony. While Doerr does list several factors the court
should bear in mind when considering the trustworthi-
ness of out-of-court statements, the case is concerned
with hearsay statements being offered into evidence
under the catch-all hearsay exception in Rule 807. Id. at
955-56. As we stated above, Patrick’s grand jury testi-
mony was not hearsay under Rule 801(d)(1)(A), and
therefore, Doerr is inapplicable here.
C. Conviction for Use of a Firearm Under
§ 924(c)(1)(A)
Young’s third argument in this appeal is that the gov-
ernment did not prove beyond a reasonable doubt that
he “used” a firearm in violation of 18 U.S.C. § 924(c)(1)(A).
With a challenge to the sufficiency of the evidence, this
Court considers the evidence in a light most favorable to
the government and will overturn a conviction only if no
rational trier of fact could conclude that the govern-
ment proved the crime’s essential elements beyond a
reasonable doubt. United States v. Jones, 188 F.3d 773,
776 (7th Cir. 1999); United States v. Jackson, 177 F.3d 628,
630 (7th Cir. 1999).
18 No. 02-1294
Under 18 U.S.C. § 924(c)(1)(A), “any person who, during
and in relation to any crime of violence . . . for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm” is subject to various im-
prisonment terms. 18 U.S.C. § 924(c)(1)(A) (2002) (empha-
sis added). Young argues that there was insufficient evi-
dence to convict him of this crime because the government
did not show, per Bailey v. United States, that Young
“actively employed” the firearm in connection with the
charge of interstate domestic violence in count 2. See Bailey
v. United States, 516 U.S. 137, 142-43 (1995).
The holding in Bailey is not as broad as Young would
have this Court believe. The Court in Bailey referred only
to the meaning of “uses” under § 924(c)(1)(A) and did not
address the meaning of “carries” or “possesses” under the
statute, which is the issue presented by this case. Thus, we
must determine whether Young “carried” a firearm “dur-
ing and in relation to,” or whether he “possessed” one “in
furtherance of,” the interstate domestic violence charge.
This Court stated in United States v. Pike that the “in
relation to” prong of § 924(c)(1)(A) may be satisfied “by
evidence that the defendant carried his weapon to fur-
ther the ‘purpose or effect’ of his crime.” United States v.
Pike, 211 F.3d 385, 389 (7th Cir. 2000) (quoting Smith v.
United States, 508 U.S. 223, 238 (1993)) (emphasis in
original). In Young’s case, there can be no doubt that he
carried his gun during and in relation to the charge of
interstate domestic violence. Witnesses saw him violently
confront Patrick at Miller’s apartment in Chicago, appar-
ently with something heavy concealed in his pocket. Sidney
testified that at least once during the four days Young
kept Patrick in Indiana he saw Young exit the bed-
room with a gun in his waistband. Young asked Sidney to
dispose of the gun, but Sidney refused. Finally, before
the grand jury Patrick testified that she told her aunt,
No. 02-1294 19
police, and medical personnel that Young had a gun, that
he loaded it in front of her, threatened her with it, and
struck her in the face with it.
It also goes without saying that Young possessed his
gun “in furtherance of” the underlying charge of inter-
state domestic violence. The events described above all
illustrate that he possessed the gun throughout the time
he terrorized Patrick and that his possession of the gun
furthered the abuse he rendered upon her. Thus, there
was ample evidence for a rational jury to conclude beyond
a reasonable doubt that Young violated § 924(c)(1)(A), and
his conviction for that crime will stand.
D. The District Court’s Response to a Question from
the Jury
We review the district court’s decision to answer a
question propounded from the jury as well as the language
used in the court’s response for an abuse of discretion.
United States v. Sanders, 962 F.2d 660, 677 (7th Cir. 1992).
The government urges this Court to review the district
court’s decision to answer the question for an abuse of
discretion, but argues that Young waived this standard
with respect to the language of the court’s answer and
therefore waived the issue on appeal. The government
contends that defense counsel did not object to the lang-
uage of the answer and objected only to the court’s deci-
sion to give an answer. The record, however, supports
that defense counsel adequately objected to both the giv-
ing and language of the answer. We will review both
issues for an abuse of discretion.
First, Young argues that the supplemental instruction
should not have been given, and second, that the judge
mislead the jury by defining the terms “during” and “in
relation to” jointly. Young contends the joint definition led
the jury to believe the terms had similar meanings when,
20 No. 02-1294
in fact, they do not. Young also submits that the jury’s
findings in the special interrogatory submitted on count 2
as well as his conviction under count 3 reveal the confu-
sion stemming from the erroneous instruction.
With respect to Young’s first argument, we note that the
district court has broad discretion to respond to questions
propounded from the jury during deliberations. United
States v. Watts, 29 F.3d 287, 291 (7th Cir. 1994). When it is
clear that the jury is having difficulty with the original
instructions, a supplemental instruction is appropriate.
United States v. Lakich, 23 F.3d 1203, 1208 (7th Cir. 1994).
Furthermore, the district court should strive to clear
away any difficulties with concrete accuracy. United
States v. Otto, 850 F.2d 323, 325-26 (7th Cir. 1988) (citing
Bollenbach v. United States, 326 U.S. 607, 612-13 (1946)).
Here it is quite clear from the language of the jury’s
question that it was having primary difficulty understand-
ing the meaning of the term “during” in § 924(c)(1)(A). The
district judge decided to respond to the jury’s question
because the court wished to clear away the confusion
with concrete accuracy. We find that the district court
did not abuse its discretion in deciding to respond to the
jury’s question.
When the court issues a supplemental instruction, we
examine the language for the following factors: 1) wheth-
er the instruction as a whole fairly and adequately treats
the issues; 2) whether the instruction is a correct state-
ment of the law; and 3) whether the district court an-
swered the jury’s question specifically. Lakich, 23 F.3d
at 1208. The supplemental instruction at issue stated that
“ ‘[d]uring and in relation to the offense charged in Counts
1 or 2’ means at any point within the offense conduct
charged in Counts 1 or 2.” As noted above, the actual
question propounded by the jury concerned itself only
with the meaning of “during,” though the initial paragraph
No. 02-1294 21
of the note to the district judge referenced clarification
of both “during” and “in relation to.” So, the issue here is
whether the district judge’s inclusion of the term “in
relation to” in her supplemental instruction on the mean-
ing of “during” represents an abuse of discretion.
First, the supplemental instruction fairly and ade-
quately treated the issue presented by the jury as it fully
considered only the question propounded by the jury. Sec-
ond, the supplemental instruction provided a correct
statement of law. But because the terms “during” and “in
relation to” have separate meanings under § 924(c)(1)(A),
the district judge should not have included the words “in
relation to” in her response to the jury. The inclusion of
those words, however, did not mislead the jury with re-
spect to the meaning of “during.” As we held above,
there was sufficient evidence for a rational jury to find
Young guilty of count 3 beyond a reasonable doubt. This
verdict was predicated upon the fact that Young carried
a gun during and in relation to the interstate domestic
violence charge. The “in relation to” prong was satisfied
by his carrying the gun to further the purpose or effect of
the crime. Pike, 211 F.3d at 389. Thus, inclusion of the
words “in relation to” in the supplemental instruction
defining “during” amounted, at most, to harmless error
and does not render the response an incorrect statement
of law. Third, it is clear from this language that the sup-
plemental instruction specifically answered the jury’s
question on the meaning of “during,” as it defined a spe-
cific time period the jury could consider in its deliberations.
Finally, Young argues that the jury’s confusion from this
supplemental instruction appears from its finding in the
special interrogatory submitted with count 2 (that the
government did not prove beyond a reasonable doubt
that he “used” a firearm in connection with the interstate
domestic violence charge) and his conviction for count 3.
First, as we stated above, the § 924(c)(1)(A) conviction rests
22 No. 02-1294
upon a finding that Young “carried” the gun during and
in relation to the interstate domestic violence charge. The
statutory term “uses” in § 924(c)(1)(A) retains an inde-
pendent meaning from “carries.” Young could “carry” the
gun without “using” it, and there is no inconsistency in the
jury’s findings.
And, even if the special interrogatory and the conviction
for count 3 were inconsistent, “[a] jury that inconsistently
convicts the defendant of one offense and acquits him of
another is as likely to have erred in acquitting him of the
one as in convicting him of the other.” United States v.
Johnson, 223 F.3d 665, 675 (7th Cir. 2001). In other words,
inconsistent verdicts do not invalidate the verdict. Id.
Accordingly, we AFFIRM the decision of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-4-02