United States v. Wren, Jimmy D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2199 & 03-2232
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JIMMY DOYLE WREN and CHARLES YARBOR,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 163-3,4—Charles P. Kocoras, Chief Judge.
____________
ARGUED FEBRUARY 27, 2004—DECIDED APRIL 14, 2004
____________
Before EASTERBROOK, MANION, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Jimmy Doyle Wren, Charles
Yarbor, and two codefendants were charged with conspiring
to unlawfully transport firearms in interstate commerce, in
violation of 18 U.S.C. § 371. A jury trial on the charges
resulted in guilty verdicts, and Wren and Yarbor were both
sentenced to terms of 60 months. Their appeals have been
consolidated for our consideration.
2 Nos. 03-2199 & 03-2232
We review the evidence in the light most favorable to the
government, and doing so reveals that Yarbor and code-
fendants Louis Rowe and Julius Sangster conspired to
obtain firearms from Wren, a federally licensed firearms
dealer in Mississippi, and transport them to Chicago for
resale at a profit. They obtained the firearms by using false
identification and several female straw purchasers.
Sangster, who had entered a plea of guilty, agreed to
cooperate with the government. He testified at trial that
Yarbor and Rowe told him about their activities and asked
if he was interested in joining them in exchange for a share
of the profits. He was, and in May 1996 the three went to
Mississippi. Yarbor brought along crack cocaine, which he
sold in Mississippi. The three then met Wren at a hospital
parking lot in Grenada, Mississippi, a town on I-55 (a direct
route from downtown Chicago) about 80 miles south of
Memphis, Tennessee. Rowe told Wren that Sangster was
his brother, who had just been released from prison, and
that Sangster would soon be taking over for Rowe because
Rowe was about to go to jail himself. Wren provided blank
Alcohol, Tobacco and Firearms (ATF) forms 4473, which the
men filled out using false information. Later that day they
again met with Wren at the parking lot. At this time Wren
delivered an SKS rifle and a 2.9mm handgun. Yarbor
wrapped the guns in duct tape and concealed them under
the back bumper of the car. Yarbor, Rowe, and Sangster
drove the guns to Chicago, where Yarbor sold them to a
member of the Gangster Disciples street gang.
After this trip Rowe was incarcerated, and Sangster and
Yarbor began to make the trips to Mississippi to obtain the
guns. In general, they followed the same procedure as be-
fore. Because Sangster was a convicted felon he could not
fill out the ATF forms using his own name. He used an
alias—Johnny Ray Hall—or he had various women fill out
the forms for him. The forms were presented to Wren, who
did not ask for identification. From May 1996 until January
Nos. 03-2199 & 03-2232 3
1997, Sangster made 9 trips to Mississippi and obtained
between 70 to 80 guns from Wren. Yarbor accompanied
Sangster on six of the nine trips.
During the summer of 1996, Sangster asked Yarbor to
make another trip and Yarbor declined, explaining that he
planned to go into a different business—selling drugs in
Chicago. But, Yarbor said, he would go to Mississippi “when
he got the chance.” He did not make any more trips, but he
did help Sangster find purchasers for the guns.
In August or September of 1996, Wren received an ATF
“tracer” indicating that a gun purchased by Melinda Parker,
one of the women working with the conspiracy, was recov-
ered in connection with a murder investigation in Florida.
Wren told Sangster and Yarbor about the tracer and
suggested that they direct Parker to report her gun stolen.
The tracer did not stop their activities, however; Wren
continued to supply guns to Sangster until Sangster and
Rowe had a falling out over past gun sales and Sangster
stopped making trips to Mississippi. His last trip was in
November 1996.
Two of the other women who were straw purchasers—
Paulette Hayes and Rosie Ammus—testified at trial. They
acknowledged that they never paid for or received any
firearms themselves. Hayes said she filled out ATF forms
and that Wren never asked her for identification. Ammus
said she bought guns for Rowe and Sangster (they could not
legally buy them themselves because they had criminal
records).
In April 1997, Chicago police officers raided Rowe’s
residence. Despite the raid, Rowe, now out of jail, continued
to buy guns from Wren and resell them in Chicago until
August 1997, when his residence was raided a second time.
The officers notified agents of the ATF about the raids. An
ATF agent traced the guns and learned that 28 of them had
traveled in interstate commerce and that 21 had come from
a store owned by Wren.
4 Nos. 03-2199 & 03-2232
Both Yarbor and Wren made statements to ATF agents.
Yarbor told the agent about the trips to Mississippi, about
selling crack cocaine in Mississippi, and purchasing guns to
bring back to Chicago. He described the guns purchased on
the trips, the prices paid, and the people in Chicago to
whom the guns were sold. He admitting knowing that
Sangster and Rowe were convicted felons who could not
legally purchase firearms. He claimed that he stopped
making trips in July 1996.
Wren made a statement to Tina Sherrow, an ATF agent,
in April 1998 after she executed a warrant to search his
business, the delightfully named “J.W.’s Second
Amendment Sporting Goods Store.” In the statement, Wren
said he sold firearms to his codefendants but that he
stopped selling to them when he learned that some of the
guns were used in criminal offenses. Wren also traveled to
Chicago in February 2002, pursuant to a grand jury sub-
poena. In preparation for his grand jury testimony he was
given a written cooperation agreement, which he signed,
and a grand jury statement prepared by an assistant
United States attorney (AUSA). He was allowed to make
any changes he wished to the statement before he signed it.
The next day he read the statement to the grand jury after
he was advised of his right to remain silent, to have a
lawyer present, and of the ramifications of committing
perjury.
Wren and Yarbor raise several issues on appeal. Wren
contends that “venue and jurisdiction” were improper in the
Northern District of Illinois, that he was promised immu-
nity for his testimony before the grand jury, and that his
statement was involuntary. He also contends that his
sentence was improperly enhanced on the basis that the
offense involved more than 50 firearms, that he had reason
to know that the firearms would be used in another crim-
inal offense, and that he obstructed justice by committing
perjury at trial. He also says it was error for the district
Nos. 03-2199 & 03-2232 5
court not to depart downward from the sentencing guide-
lines in his case. Yarbor contends that the statute of
limitations expired before he was indicted, that the district
court improperly refused to instruct the jury on his theory
that he withdrew from the conspiracy or that the conspiracy
terminated before February 13, 1997, which would mean
that the statute of limitations had run. He also argues that
it was error for the district court to conclude that he had
two felony drug convictions prior to the commission of the
present offense and to find that certain firearms involved in
the offense were semiautomatic assault rifles within the
meaning of the United States sentencing guidelines.
We turn first to Wren’s contention that “venue and jur-
isdiction” were improper in the Northern District of Illinois.
As to jurisdiction, federal courts have exclusive jurisdiction
over offenses against the United States, 18 U.S.C. § 3231,
which means, of course, that they in fact have jurisdiction.
But federal criminal prosecutions must be brought in the
district in which the offense was committed. Fed. R. Crim.
P. 18; United States v. Pearson, 340 F.3d 459 (7th Cir.
2003). We review claims of improper venue only to deter-
mine “whether the government proved by a preponderance
of the evidence that the crimes occurred in the district
charged, viewing the evidence in the light most favorable to
the government.” United States v. Ochoa, 229 F.3d 631, 636
(7th Cir. 2000). When a crime is committed in more than
one district, venue is proper in any district in which any
part of the crime was committed. 18 U.S.C. § 3237(a). In a
conspiracy case, venue is proper in any district where at
least one overt act in furtherance of the conspiracy oc-
curred. It is not necessary that the conspiracy was formed
in the district, that the defendant himself carried out an
overt act in the district, or even that the defendant entered
the district. What is necessary is that one of the conspira-
tors carried out an overt act in the district. United States v.
Rodriguez-Moreno, 526 U.S. 275 (1999).
6 Nos. 03-2199 & 03-2232
As our recitation of the evidence reveals, the Northern
District of Illinois was the site of a number of overt acts.
Sangster, Yarbor, and Rowe transported firearms supplied
by Wren to Chicago and resold them in Chicago. In Chicago,
Rowe was found in possession of one of the firearms
obtained from Wren. Wren does not seriously contend—nor
could he—that the evidence was not sufficient to sustain a
finding that he was a member of the conspiracy. Accord-
ingly, venue was proper in the Northern District of Illinois.
We turn next to Wren’s contention that he should have
prevailed on his motion to suppress statements for which he
claims he was granted immunity. In connection with a
motion to suppress, we review questions of law de novo and
questions of fact for clear error. United States v. Peters, 153
F.3d 445 (7th Cir. 1998). We will conclude that a district
court’s factual finding is clearly erroneous only if we are left
with the definite and firm conviction that a mistake has
been made. See United States v. Quinn, 83 F.3d 917, 921
(7th Cir.1996). Generally speaking, a cooperation-immunity
agreement is contractual in nature and subject to contract
law standards. The language of the contract is to be read as
a whole and given a reasonable interpretation. United
States v. Hartmann, 958 F.2d 774 (7th Cir. 1992).
The first bit of evidence, then, on the issue of whether
Wren was granted immunity is his cooperation agreement,
in which we find the following statement:
At this time, no promises have been made to you, nor
have any agreements been reached with you by the ATF
regarding what sentence you may receive for your
participation in the illegal firearms purchases and sales
scheme, or what charges will be filed against you by the
United States.
. . . You have agreed to cooperate because you have
been informed that the extent and nature of your
Nos. 03-2199 & 03-2232 7
cooperation will be made known to the judge who will
sentence you, and that your cooperation will also be
considered by the United States Attorney’s Office in its
decision as to what charges to file against you for your
involvement in the illegal firearms purchases and sales
scheme.
One cannot read these statements without concluding that
the threat of prosecution remained. Second, we have Wren’s
statement to the grand jury which shows that before he
testified he was advised of his right to remain silent and to
consult with an attorney.
Wren nevertheless says he had a phone conversation in
which the investigating agent told him no charges would be
brought against him. His son and a friend filed affidavits
saying they were present during this conversation. Wren
also claims he did not read the cooperation agreement
before signing it.
At trial, however, Special Agent Sherrow testified that
Wren was never promised immunity and that Wren read,
signed, and initialed the cooperation agreement and that he
was alert and responsive when he did so. We cannot find
that Wren was granted immunity for his statements.
On appeal, Wren raises an issue that his grand jury
testimony was involuntary because he was medicated and
incapable of understanding what was happening. This issue
was not developed in the district court, and therefore our
review is limited to a determination whether there is plain
error. United States v. Brumley, 217 F.3d 905 (7th Cir.
2000). The transcript of the grand jury proceedings does not
show that Wren was incoherent or that he did not under-
stand the nature of his testimony. The court reporter
testified that Wren seemed alert and responsive when he
testified. Thus, Wren is miles away from demonstrating
that he is the victim of plain error.
8 Nos. 03-2199 & 03-2232
Wren also raises objections to three findings of the dis-
trict court, which form the bases of enhancements to his
sentence: (1) that the offense involved 50 firearms; (2) that
he had reason to know that the firearms he supplied would
be used in other criminal offenses; and (3) that he ob-
structed justice by committing perjury at trial.
We review the district court’s factual determinations at
sentencing for clear error. United States v. Griffin, 310 F.3d
1017 (7th Cir. 2002). A factual finding is clearly erroneous
only if, after considering all the evidence, we are left with
a firm conviction that a mistake has been made. United
States v. Messino, 55 F.3d 1241 (7th Cir. 1995). A district
court’s choice between two permissible inferences from the
evidence cannot be clearly erroneous. United States v.
Wyatt, 102 F.3d 241 (7th Cir. 1996). We lack authority to
review a refusal to depart from the guideline range unless
it is clear that the judge believed he lacked the authority to
depart. United States v. Aron, 328 F.3d 938 (7th Cir. 2003).
Under U.S.S.G. §2K2.1(b)(1), a sentence is enhanced by 6
levels if the offense involves between 25 and 99 firearms. At
trial the parties stipulated to the accuracy of two gov-
ernment summary charts showing that Wren supplied 50
firearms to Rowe and Sangster directly or through straw
purchasers. Nevertheless, Wren argues that he could only
be held responsible for 21 firearms because that is the
number recovered in connection with criminal activity. The
argument cannot be sustained. The guideline does not re-
quire that the guns be recovered in criminal activity for the
enhancement to apply.
Wren also argues that it was error to find that he knew or
had reason to know that the firearms would be possessed in
connection with a felony. U.S.S.G. §2K2.1(b)(5) provides for
a 4-level enhancement for such a transfer. Making what
sounds like an argument that he “didn’t know the gun was
loaded,” Wren says he did not know the guns would be used
Nos. 03-2199 & 03-2232 9
in criminal activity. The evidence at trial was sufficient to
show that he did. The inference is easily drawn from the
sheer number and type of firearms that he supplied. The
circumstances under which he sold the guns also show that
he had reason to know the sales were not on the up and up.
Besides all that, his grand jury testimony was that he knew
the straw purchasers were buying guns for Sangster
because they never selected or inspected the guns they
bought, nor did they pay for them. Also, the women were
buying more guns than they reasonably could need. We
cannot find clear error in the district court finding on this
enhancement.
Wren says he did not commit perjury at trial and his
sentence should not have been enhanced under U.S.S.G.
§3C1.1. In that regard, we uphold an obstruction enhance-
ment so long “as the district court made an independent
finding of obstruction that encompasses all of perjury’s
factual predicates.” Griffin at 1023-24. And we afford great
deference to the sentencing judge’s determination that the
enhancement is appropriate. United States v. Lanzotti, 205
F.3d 951 (7th Cir. 2000). Wren testified at trial that he
didn’t know that the sale of the firearms in question was
illegal until the ATF agent told him so. He also said that as
soon as he received tracers from ATF he stopped selling the
guns. But the investigating agent testified that Wren con-
tinued to sell firearms after he received tracers. Wren also
said that an AUSA gave him a new statement to sign just
5 minutes prior to his testimony at the grand jury and told
him just to sign it. He also testified that he was promised
immunity. Again the investigating agent testified that only
one statement was ever prepared by the AUSA, that it was
signed the day before Wren testified before the grand jury,
and that there was no promise of immunity.
Chief Judge Kocoras succinctly summarized the situation,
saying:
10 Nos. 03-2199 & 03-2232
But I listened to all of this evidence, quite frankly,
and aside from the clash in testimony, which is not—
you could not square it up; someone was not telling it
right—a lot of the things that I think Mr. Wren said,
and I do not mean to be so harsh and direct about it,
but I found inherently implausible.
. . . And I cannot help but, therefore, conclude, with or
without the competing testimony, that it did not happen
the way he said it happened.
The judge also said he did not think that Wren was “forced
to say things that he didn’t willingly say and volunteer.” We
also cannot say that these findings are insufficient or
otherwise in error.
Finally, we lack jurisdiction to review Wren’s contention
that he should have been granted a downward departure
based on his physical condition, so long as Chief Judge
Kocoras was aware that he had the discretion to depart
downward. The judge, it is clear, was well aware of his
discretion and in fact stated that “in appropriate cases I
have done that [depart downward].”
We turn now to the issues raised by Yarbor. He claims
that the indictment against him for conspiracy to transport
illegally acquired firearms through interstate commerce
was not returned within the 5-year statute of limitations.
For that reason, he says, his motion for judgment of ac-
quittal should have been granted.
Although we review de novo the question whether the
statute of limitations has run, see United States v.
Anderson, 188 F.3d 886, 888 (7th Cir. 1999), the question
whether the district court properly found that there was
sufficient evidence to show that a defendant committed the
offense within the relevant time period is one that receives
the highly deferential review reserved for evidentiary
challenges to criminal convictions, see United States v.
Richardson, 208 F.3d 626, 631 (7th Cir. 2000); United
Nos. 03-2199 & 03-2232 11
States v. Griffin, 150 F.3d 778, 784 (7th Cir. 1998); United
States v. Barnes, 230 F.3d 311 (7th Cir. 2000).
In order to prove a conspiracy, the prosecution must prove
that the conspiracy existed and that each defendant was a
member at some point in the 5 years preceding the date of
the indictment. United States v. Read, 658 F.2d 1225 (7th
Cir. 1981). The statute of limitations does not begin to run
until the offense expires or from the last act in furtherance
of the conspiracy. United States v. Yashar, 166 F.3d 873(7th Cir. 1999). Also, the government need not prove any
overt acts of a particular defendant within the limitations
period but must show that the conspiracy existed into the
limitations period and that the defendant did not withdraw
from the conspiracy prior to that time. In fact, a defendant’s
membership in the conspiracy is presumed to continue
unless he withdraws from the conspiracy by the affirmative
act of confessing to the police or by clear communication to
coconspirators that he is withdrawing. United States v.
Maloney, 71 F.3d 645 (7th Cir. 1995). Simply ceasing to
participate even for extended periods of time is not suffi-
cient to show withdrawal. United States v. Bafia, 949 F.2d
1465 (7th Cir. 1991).
The indictment in this case was returned on February 13,
2002. Yarbor sees two reasons why that date is outside the
statute of limitations. First, he claims that three of the four
coconspirators had withdrawn from the conspiracy or were
incapacitated by as early as November 1996 and at least no
later than January 1997. Second, he says that evidence at
trial established that he withdrew from the conspiracy as
early as July 1996 but no later than October 1996.
The evidence relevant to the issue included Sangster’s
testimony that after Rowe was released from prison he
continued to make trips to Mississippi to purchase guns.
His trips continued at least until April 3, 1997, when he
purchased a Bryco 9mm in the name of Paulette Hayes. A
12 Nos. 03-2199 & 03-2232
few days before Rowe’s house was searched in August 1997,
he showed Sangster a shotgun he had purchased from
Wren. There is evidence that the conspiracy continued until
August, which would mean that the indictment was timely.
There was no real evidence of any affirmative act on
Yarbor’s part to withdraw from the conspiracy. Although
Sangster testified that in the summer of 1996 Yarbor said
he was going to stop making trips to Mississippi in order to
concentrate on selling drugs, he also testified that Yarbor
said he would go to Mississippi with Sangster when he had
a chance to. Yarbor’s statement about changing careers is
not sufficient to show that he left gunrunning behind. In
addition, he says that an argument he had with Sangster,
which his brother Tony Yarbor overheard, shows he with-
drew. But Tony Yarbor did not know what the subject of the
argument was, and in any case an argument is not suffi-
cient evidence of withdrawal. There is evidence to support
a finding that the conspiracy extended into the limitations
period and that Yarbor did not affirmatively withdraw from
the conspiracy. His motion for judgment of acquittal on this
ground was properly denied.
A related issue Yarbor raises involves the district court’s
refusal to instruct the jury on his theories of defense that
the conspiracy terminated or that he withdrew from it more
than 5 years before the indictment was returned. When
there was a proper objection at trial, as there was here, we
review the refusal to give a tendered theory of defense
instruction de novo. United States v. Mutoc, 2003 WL
22746676 (7th Cir. Nov. 21, 2003).
A defendant is entitled to a theory of defense instruction
if (1) he proposes a correct statement of the law; (2) his
theory is supported by the evidence; (3) the theory of
defense is not part of the charge; and (4) the failure to
include an instruction of the defendant’s theory would deny
him a fair trial. United States v. Swanquist, 161 F.3d 1064,
Nos. 03-2199 & 03-2232 13
1075 (7th Cir. 1998). A “ ‘mere scintilla’ of evidence support-
ing a defendant’s theory . . . is not sufficient to warrant a
defense instruction.” United States v. Buchmeier, 255 F.3d
415, 427 (7th Cir. 2001). Specifically, a defendant is entitled
to a withdrawal instruction only if the evidence could
sustain the claim. United States v. Nava-Salazar, 30 F.3d
788 (7th Cir. 1994).
Our review of the record convinces us that the refusal to
give the instructions was proper. The conspiracy continued
until August 1997 when Rowe’s house was searched by
the Chicago police department. There is no evidence that
Yarbor took affirmative steps to withdraw from the con-
spiracy. His not taking actions in furtherance of the con-
spiracy is not the same as taking affirmative action to
withdraw.
Yarbor also appeals from two determinations made at his
sentencing hearing. He contends that the district court
erred in finding that he committed the present offense after
sustaining two felony convictions for drug offenses and in
finding that the firearms involved were semiautomatic
assault weapons. We review a sentencing court’s factual
findings for clear error; questions of law are reviewed de
novo. United States v. Bruder, 945 F.2d 167 (7th Cir. 1991).
Section 2K2.1(a)(1) of the United States sentencing
guidelines provides for an enhancement in a defendant’s
base offense level if “the offense involved a firearm de-
scribed in . . . 18 U.S.C. § 921(a)(30), and the defendant
committed any part of the instant offense subsequent to
sustaining at least two felony convictions for either a crime
of violence or a controlled substance offense[.]” Yarbor
claims that the government failed to prove that the weap-
ons involved in the present offense were semiautomatic
assault weapons as defined by 18 U.S.C. § 921(a)(30)(B).
Section 921(a)(30) provides:
14 Nos. 03-2199 & 03-2232
The term “semiautomatic assault weapon” means—
...
(B) a semiautomatic rifle that has an ability to
accept a detachable magazine and has at least 2
of—
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously
beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel de-
signed to accommodate a flash suppressor; and
(v) a grenade launcher[.]
Yarbor claims the weapon at issue did not meet two of these
characteristics—(i) and (ii). However, it was virtually
undisputed that the weapon had a folding stock. The only
real issue was whether the pistol grip protruded conspicu-
ously beneath the action of the weapon. Yarbor says that
United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998), and
United States v. Meadows, 91 F.3d 851 (7th Cir. 1996),
establish that, without guidance from expert witnesses,
juries are not qualified to make determinations as to what
statutory features exist on any particular firearm. There
was no expert testimony here so, the argument goes, there
can be no finding about whether the pistol grip protruded
conspicuously beneath the weapon. The problem with the
argument is that Spinner and Meadows are distinguishable.
In both cases, the issue was one for trial where, of course,
the burden on the government is to prove the nature of the
gun beyond a reasonable doubt. Here, it was not necessary
to prove beyond a reasonable doubt that the gun was
semiautomatic. The issue came up at sentencing where the
burden of proof is a preponderance of the evidence. Harris
v. United States, 536 U.S. 545 (2002); United States v.
Nos. 03-2199 & 03-2232 15
Merritt, 2004 WL 549475 (7th Cir. Mar. 22, 2004). Further-
more, the issue does not seem to require any particular
expertise. The discussion about this feature of the gun at
sentencing shows that Chief Judge Kocoras found the
argument that the pistol grip did not protrude conspicu-
ously to be almost frivolous. In making his factual finding
he had an opportunity to see the gun and found that the
pistol grip extended conspicuously. Looking at the gun, the
judge stated in no uncertain terms that it was conspicuous.
We have no basis in the record before us to say that the
finding is clearly erroneous.
Yarbor also argues that even if the gun is a semiauto-
matic assault rifle pursuant to 18 U.S.C. § 921(a)(30)(B),
it is excluded under 18 U.S.C. § 922(v)(3)(B)(ii) in that
it “has been rendered permanently inoperable” or under
subsection (C) in that it “cannot accept a detachable mag-
azine that holds more than 5 rounds of ammunition[.]”
On the first exception, Chief Judge Kocoras said there was
a presumption that the gun was operable and no one had
shown him that it wasn’t. On the second exception, Special
Agent Sherrow testified, “The magazine that came with the
weapon did have a capacity to carry more than five rounds.”
The finding that the exceptions did not apply is not clearly
erroneous.
As to the requirement that Yarbor have been convicted of
two prior felony drug charges, we note that he was con-
victed of such charges on April 18, 1997. That means that
the guideline would apply to the present case if the conspir-
acy continued past that date. The issue, then, involves the
same facts we have been discussing. How long did this
conspiracy continue? We have said that there was evidence
from which to conclude that it continued until August 1997
when Rowe’s house was searched. It therefore was not error
for Chief Judge Kocoras to find by a preponderance of the
evidence that Yarbor had two prior felony drug convictions.
Similarly, relying on our previous discussion, we find that
16 Nos. 03-2199 & 03-2232
it was not error for the judge to find that Yarbor did not
withdraw from the conspiracy prior to the drug convictions.
Accordingly, the application of U.S.S.G. §2K2.1 to Yarbor’s
sentence was not error.
The judgments of conviction and the sentences of Jimmy
Doyle Wren and Charles Yarbor are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-14-04