United States v. Whitlow, Gary T. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4222
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY T. WHITLOW,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03-30096-DRH—David R. Herndon, Judge.
____________
ARGUED MAY 24, 2004—DECIDED AUGUST 25, 2004
____________
Before RIPPLE, MANION and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. A jury convicted Gary T. Whitlow of
ten counts of possessing automatic weapons in violation of
18 U.S.C. § 922(o). Mr. Whitlow challenges the district
court’s admission of certain evidence and also challenges
the sufficiency of the evidence with respect to his conviction
on counts seven through ten. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
2 No. 03-4222
I
BACKGROUND
A. Facts
On August 4, 2000, Mr. Whitlow’s wife, Rachel Whitlow,
rented a storage unit at The Storage Center in O’Fallon,
Illinois. The rental paperwork listed both Mrs. and Mr.
Whitlow as the renters of a ten-foot by ten-foot unit des-
ignated as unit J-11. The Whitlows rented unit J-11 from
August 4, 2000, until July 31, 2001.
Michael Walker owned and operated The Storage Center.
In May of 2001, another renter reported a theft of items in
his unit. Thereafter, Walker increased security and began
conducting regular checks of the units to ensure that un-
rented units were empty and that rented units were locked.
1. Weapons recovered on May 18, 2001
During his patrols on May 17, 2001, Walker observed two
men in a pick-up truck loading items from unit J-11. Walker
did not suspect anything at the time and waved as he rode
past on his golf cart. While patrolling the following day,
however, Walker noticed that the lock on the J-11 unit was
missing. Walker’s wife then called Mrs. Whitlow to report
the missing lock.
A short while later, Walker noticed a U-Haul truck enter
the storage facility; Walker thought one of the men in the
truck looked familiar. When Walker noticed that the U-Haul
stopped in front of unit J-11, he suspected a burglary was in
progress. He immediately called the police and locked the
perimeter gate to the storage facilities.
Officer David Matevey arrived first and arrested Steven
Hopkins and Rodney Taylor as they attempted to leave the
No. 03-4222 3
storage facility premises in a U-Haul truck. Officer Kerry
Andrews also responded to the scene. Upon arrival, he
found a bolt cutter, gloves and a two-way radio in the cab
of the U-Haul. The cargo compartment of the U-Haul con-
tained the following items: 1) an MP40 submachinegun, 2)
four Sten type submachineguns manufactured from im-
ported, homemade and surplus parts, 3) an MP40 receiver
1
tube, 4) one tripod with a pintle assembly attached and one
without a pintle assembly attached, both designed to fit an
2
M1919 machinegun, 5) a box containing various gun parts,
6) a box of magazines for 9mm rounds, 7) a military style
rucksack with .223 caliber ammunition, 8) stencils for the
letters W-H-I-T-L-O, 9) a military jacket with the name
“Whitlow,” and other items. After surveying the contents of
the U-Haul, the officers went to unit J-11; when they ar-
rived, they found that the lock was missing and that the
remaining contents were in disarray.
While the officers were still at The Storage Center, Mrs.
Whitlow arrived. She confirmed that the items in the back
of the U-Haul belonged to her husband. The police took cus-
tody of the items and called the Bureau of Alcohol, Tobacco
and Firearms (“ATF”) for assistance.
Hopkins’ testimony at trial provided some context to the
events leading to his arrest at The Storage Center on May 18,
2001. He stated that he was smoking crack cocaine at Joe
3
Wingate’s house on May 17, 2001. Someone suggested
1
These items were the bases for the first six counts of the in-
dictment against Mr. Whitlow.
2
A pintle assembly holds the machinegun on the tripod.
3
Hopkins initially failed to identify Wingate as his accomplice
because Hopkins knew that Wingate had killed people, and he
(continued...)
4 No. 03-4222
breaking into a storage shed so that they could get more
money to buy crack. Hopkins had a driver’s license and was
asked to drive the truck. Hopkins stated that he and Wingate
drove the white pick-up to the storage facility on May 17,
4
2001, and picked a unit at random. Once they opened the
unit, they loaded duffel bags and other items in the truck
until it was full. While doing this, Hopkins recalled waving
to someone riding by on a golf cart as they worked. Hopkins
and Wingate eventually closed the door, leaving numerous
5
items behind.
The next day, May 18, 2001, Wingate asked Hopkins to
steal the remaining items and provided him with an empty
U-Haul truck. This time Hopkins went with Rodney Taylor
instead of Wingate. Hopkins loaded wooden boxes that
Wingate had instructed him to steal. Once Hopkins and
Taylor completed loading the truck, they attempted to leave
but found the gate locked and saw the police arriving.
ATF Agent Daniel Owens met with local police on May
18, 2001. He conducted a preliminary test and determined
that the firearms recovered from the U-Haul were fully auto-
matic machineguns. At the end of May, Agent Owens
brought Agent David Klein, who was familiar with World
War II machineguns, to inspect the items recovered from the
3
(...continued)
feared that Wingate would retaliate. Indeed, Wingate previously
had been convicted of murder.
4
Hopkins stated the lock may have been missing or open on unit
J-ll.
5
Walker’s surveillance tape for May 17, 2001, confirmed much
of Hopkins’ testimony. The tape revealed that a white truck en-
tered the property empty and left full. Later that day, it returned
empty and again left full.
No. 03-4222 5
U-Haul. Agent Klein discovered that one of the boxes
contained M16 parts; based on this discovery, he reasoned
that, prior to the burglary on May 17, 2001, the storage unit
may have contained AR-15s that had been converted into
M16 machineguns. Agent Klein also believed that other
machineguns possibly were missing and had hit the streets
because the U-Haul contained two tripods that were de-
signed to be used with Browning M1919 machineguns.
2. Weapons recovered after May 18, 2001
The weapons that formed the bases of counts seven through
ten of the indictment were recovered through more circu-
itous means. In October 2001, Joe Wingate was indicted for
an unrelated bank robbery that had taken place on June 23,
2001. When authorities went to Wingate’s house to make the
arrest, officers recovered an Eagle Arms M15, which
eventually was traced to Mr. Whitlow. Specifically, docu-
ments entered into evidence confirmed that Mr. Whitlow
had purchased the gun in semi-automatic form on June 7,
6
1999. Again, like the other weapons, this gun had been
altered to operate in a fully automatic mode.
In a later interview with the FBI, Wingate admitted he had
additional stolen guns and agreed to turn them over for the
assurance that he would not be prosecuted for the posses-
sion of those weapons. According to Wingate’s testimony at
6
Once Mr. Whitlow was identified as the gun’s owner, Deputy
Tom Woods of the United States Marshal’s Service telephoned
Mr. Whitlow to inform him that the gun had been recovered. The
officer asked if the gun belonged to Mr. Whitlow, and Mr.
Whitlow responded that he was not sure because he could not
recall the serial number on the gun. When he was told the gun
was traced to him, Mr. Whitlow stated that the gun was his.
6 No. 03-4222
Mr. Whitlow’s trial, Wingate came to possess the guns in the
following way: Two men brought the guns to Wingate’s
house a month or a month and a half before his bank rob-
7
bery on June 23, 2001. He thought two of the guns looked
like M16s or military rifles and two were “real big ones . . .
[l]ike big machine guns, . . . you know, military guns that
they put on trucks, mount them on trucks.” Trial Tr. III at
92-93. He identified the Bushmaster receiver, an Eagle Arms
M15, two M1919s and an MP40 as guns brought to him in
the white pick-up. Wingate explained that he did not use any
of the stolen guns during his bank robbery because they
were too big. He stated that he had not altered the guns in his
possession, that he never had altered guns and that he did
not know how to manufacture or alter weapons.
Wingate also testified regarding what happened to the
guns after they came into his possession. He stated that the
guns were at his house for a few days and then moved to the
home of Alan Bledsoe. Bledsoe then hid the guns over his
bathroom ceiling. The guns were moved again after a week
or two when the police came to Bledsoe’s house to question
him about the bank robbery. All of the guns except one were
8
taken to a property owned by “Stiff.” The guns remained
at Stiff’s house until December 2001. At that time, Wingate,
through his attorney, made arrangements for his wife,
Felicia Wingate, to turn the guns over to authorities.
7
With respect to these details, Wingate’s testimony differed from
that of Hopkins. As noted above, Hopkins testified that Wingate
participated in the first burglary and ordered the second. Wingate
denied directing anyone to steal for him.
8
Wingate asserted that there originally was a sixth gun, another
MP40, which he believed was stolen by Bledsoe prior to the
transfer of weapons to Stiff’s property.
No. 03-4222 7
Upon instructions from Wingate, Felicia Wingate went to
pick up the guns from Stiff. The guns reportedly were stored
outside and covered with sheeting. ATF Agents Martin
Feely and John Jiminez met with Felicia Wingate on a street
in Washington Park, Illinois, to receive the guns. Felicia
Wingate stated that she never before had seen guns like the
ones delivered to the ATF agents. She turned over two
M1919 machineguns (one with a pintle assembly attached),
a Model MP40 machinegun and the upper receiver to an
AR-15. The M1919 guns matched the tripods recovered on
the U-Haul truck, one with and one without a pintle. One
M1919 was stamped with the initials “G.T.W.”
With respect to the upper receiver of the AR-15, Wingate
explained that he had given a gun that looked like an M16
to Eric Drisdell, a relative by marriage. Drisdell later re-
turned part of the gun to Wingate, claiming that police had
seized the lower receiver of the weapon. While Drisdell still
had the gun in his possession, he took it to a shooting range
to see if he could purchase a magazine for it. The owner of
the shooting range called authorities when it was discov-
ered that the weapon had an auto sear, which made it
9
capable of firing in a fully automatic mode. ATF Agent
Lauren Townsend then confiscated the lower receiver of the
Bushmaster AR-15.
After seizing the portion of the AR-15 from Drisdell, Agent
Townsend examined gun records to ascertain the original
purchaser. She found that Mr. Whitlow had purchased the
gun from the same shooting range; the documents indicated
that the gun was a semiautomatic at the time Mr. Whitlow
purchased it. This lower receiver fit the upper receiver that
was later turned over by Felicia Wingate.
9
Drisdell denied knowing the gun was altered.
8 No. 03-4222
B. District Court Proceedings
A grand jury indicted Mr. Whitlow on eleven counts of
possessing machineguns on or about May 17, 2001, in vio-
10
lation of 18 U.S.C. § 922(o). The weapons recovered from
the U-Haul on May 18, 2001, formed the bases for the first
six counts of the indictment. The basis of count seven was
possession of the Bushmaster AR-15 receiver seized from
Drisdell when he attempted to purchase ammunition for it.
Count eight charged Mr. Whitlow with possession of the
Eagle Arms M15A2 recovered when authorities searched
Wingate’s home in October 2001. The bases of counts nine
and ten were the two M1919 machineguns turned over by
Felicia Wingate. Finally, count eleven charged Mr. Whitlow
with possession of the MP40, also turned over by Felicia
Wingate.
At trial, in addition to the testimony of the witnesses set
forth above, the Government also offered the testimony of
10
18 U.S.C. § 922(o) provides: “(1) Except as provided in para-
graph (2), it shall be unlawful for any person to transfer or
possess a machinegun.” Additionally,
[t]he term “machinegun” means any weapon which shoots, is
designed to shoot, or can be readily restored to shoot, auto-
matically more than one shot, without manual reloading, by
a single function of the trigger. The term shall also include
the frame or receiver of any such weapon, any part designed
and intended solely and exclusively, or combination of parts
designed and intended, for use in converting a weapon into
a machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the
possession or under the control of a person.
26 U.S.C. § 5845(b); see also 18 U.S.C. § 923(a)(23) (incorporating
§ 5845(b) definition by reference).
No. 03-4222 9
11
David Stopher. Stopher was an associate of Mr. Whitlow
from 1995 to 1998. Stopher and Mr. Whitlow shared a com-
mon interest in guns and would frequently attend gun shows
together where they bought firearms and firearm parts. Addi-
tionally, he and Mr. Whitlow had possessed machinegun parts
and had manufactured machineguns during those years.
Specifically, during 1996 and 1997, they had assembled four
A-15 machineguns together by inserting auto sears in them.
Stopher also was prepared to testify that, after the theft of
Mr. Whitlow’s storage unit, Stopher coincidentally was in
Fairview Heights, Illinois, in May of 2001 to show a gun to
local ATF agents; he had purchased a Browning 1919 that was
firing in automatic mode when it should only have been a
semi-automatic weapon. The agents, along with Stopher,
went to compare the 1919 with two others in the evidence
vault. When Stopher saw the monogram “G.T.W.” on one of
the 1919 machineguns, he remarked that it looked like
something Mr. Whitlow would do.
Mr. Whitlow objected to Stopher’s testimony on the ground
that it was unduly prejudicial because the events to which
Stopher proposed to testify were too far removed in time
from the actions for which he was charged—the possession
of weapons in 2001. The court overruled Mr. Whitlow’s
objection and allowed the testimony; the court stated:
Well, first of all, certainly the fact that this defendant
has at some point in time acquired the knowledge of
how to convert a semi-automatic weapon to an automatic
weapon is relevant. It doesn’t matter when he acquired
the knowledge, once he acquired the knowledge he pos-
sesses the knowledge, and that is certainly relevant and
11
Prior to trial, the Government had given notice of its intention
to introduce Stopher’s testimony as required by Federal Rule of
Evidence 404(b). See R.11.
10 No. 03-4222
pertinent to the Government’s case in chief, and some-
thing they are obligated to prove in this kind of case.
Trial Tr. III at 18. Despite the relevancy of the testimony, the
court acknowledged that Stopher’s testimony included
evidence of other wrongful acts that were not charged and
that therefore the court was required to weigh the relevancy of
the testimony against the possibility of unfair prejudice to
Mr. Whitlow. The court determined that the evidence was
probative of Mr. Whitlow’s knowledge of how to convert
semiautomatic weapons to automatic weapons; the evidence
also was relevant to show an absence of mistake. The court
concluded that, with a limiting instruction, the threat of
undue prejudice would be minimized. It therefore allowed
Stopher to testify to the events set forth above. At the time
of Stopher’s testimony, the court gave the following instruc-
tion:
Ladies and gentlemen, during the course of Mr. Stopher’s
testimony, you will likely hear about certain acts of Mr.
Whitlow other than those acts charged in the Superseding
Indictment. Now, this evidence may be considered by
you only on the question of Mr. Whitlow’s knowledge
and absence of mistake or accident, and it’s to be con-
sidered by you only for this limited purpose.
12
Trial Tr. III at 132.
At the close of the Government’s case, Mr. Whitlow moved
for a directed verdict. This motion was denied by the district
court. A renewed motion for a directed verdict was not
12
In its final instructions to the jury, the court similarly stated:
“You have heard testimony from David Stopher regarding acts of
the defendant other than those charged in the indictment. You
may consider this evidence only on the question of knowledge
and absence of mistake or accident. You should consider this
evidence only for this limited purpose.” Trial Tr. IV at 9.
No. 03-4222 11
made after the close of all evidence.
The jury returned a verdict of guilty on counts one through
ten of the indictment. The jury found Mr. Whitlow not guilty
on count eleven of the indictment.
Mr. Whitlow timely appealed.
II
ANALYSIS
A. Sufficiency of the Evidence
Under usual circumstances, when a defendant challenges
his conviction based on the sufficiency of the evidence, we
ask only whether, when viewed in the light most favorable to
the Government, the evidence was sufficient “to allow a
rational trier of fact to find all of the essential elements of an
offense beyond a reasonable doubt.” United States v. Owens,
301 F.3d 521, 528 (7th Cir. 2002). Mr. Whitlow, however,
failed to preserve this issue for review because he did not
renew his motion for acquittal at the close of all of the
evidence. See id. at 527-28. Consequently, we shall reverse
Mr. Whitlow’s conviction “only if his conviction[ ]
amount[s] to a manifest miscarriage of justice,” that is, “ ‘if
the record is devoid of evidence pointing to guilt, or if the
evidence on a key element of the offense was so tenuous
that a conviction would be shocking.’ ” Id. at 528 (quoting
United States v. Taylor, 226 F.3d 593, 597-98 (7th Cir. 2000)).
Mr. Whitlow’s argument with respect to the sufficiency of
the evidence is a narrow one. He does not argue that the
weapons that form the bases for counts seven through ten
were never in his possession in some form. He also ac-
knowledges that, when located by the Government, the
weapons had been modified to operate as machineguns. Mr.
Whitlow’s argument is, essentially, that the Government failed
12 No. 03-4222
to prove that, at the time he possessed the weapons on or
about May 17, 2001, they already had been modified to
operate in fully automatic mode.
The evidence is more than sufficient to support a jury’s
conclusion that Mr. Whitlow possessed the guns in modi-
fied form. There was testimony that Mr. Whitlow had the
knowledge and skill to modify a semi-automatic weapon
into an automatic weapon. Furthermore, among the items
taken from Mr. Whitlow’s storage unit and found in the U-
Haul were parts used to make automatic weapons as well as
tripods on which to mount such weapons. Finally, the
individuals who possessed the guns after May 17, 2001,
testified that they had not altered the weapons to operate in
automatic mode.
At bottom, Mr. Whitlow’s argument is that it was possible
that another individual modified the weapons between the
time that they were removed from the J-11 unit on May 17,
2001, and the time that they were recovered by the
Government. However, “[i]f the government proves its case by
circumstantial evidence, it need not exclude every reason-
able hypothesis of innocence so long as the total evidence
permits a conclusion of guilt beyond a reasonable doubt.”
United States v. Rose, 12 F.3d 1414, 1420 (7th Cir. 1994) (in-
ternal quotation marks and citations omitted). Here, there
was evidence that Mr. Whitlow originally possessed the
weapons, that he knew how to modify the weapons, that he
had the materials to modify the weapons, that he had the
necessary equipment (tripods) to operate the weapons in
automatic mode and that the other individuals in contact
with the weapons did not alter the weapons. This evidence,
even if it leaves open other possibilities, permits a conclu-
sion beyond a reasonable doubt that, on or about May 17,
2001, Mr. Whitlow possessed the machineguns on which
counts seven through ten are based.
No. 03-4222 13
B. Rule 404(b) Evidence
Mr. Whitlow maintains that portions of Stopher’s testi-
mony should have been excluded under Federal Rules of
Evidence 403 and 404. Specifically, Mr. Whitlow argues that
Stopher should not have been allowed to testify that he and
Mr. Whitlow manufactured machineguns together in 1996
and 1997. This evidence, he contends, “was merely cumula-
tive in light of the remainder of Stopher’s testimony and
was unfairly prejudicial.” Appellant’s Br. at 24.
Federal Rule of Evidence 404(b) provides that “[e]vidence
of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other
purposes such as proof of motive, opportunity, intent, pre-
paration, plan, knowledge, identity, or absence of mis-
take . . . .” Fed. R. Evid. 404(b). Furthermore, even if evidence
is admissible pursuant to Rule 404(b), courts still are con-
strained by Rule 403, which provides that relevant evidence
“may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Fed. R.
Evid. 403. This circuit employs a four-pronged test to
determine whether evidence of other crimes should be
admitted:
The evidence of the other act must 1) be directed toward
establishing a matter in issue other than the defendant’s
propensity to commit the crime charged; 2) show that
the other act is similar enough and close enough in time to
be relevant to the matter in issue; 3) be sufficient to sup-
port a jury finding that the defendant committed the
similar act; and 4) have probative value that is not sub-
stantially outweighed by the danger of unfair prejudice.
United States v. Moore, 115 F.3d 1348, 1354 (7th Cir. 1997)
(citations omitted). As noted above, Mr. Whitlow’s argu-
14 No. 03-4222
ment focuses on the fourth prong of the above test—that the
resulting unfair prejudice outweighed the probative value
of Stopher’s testimony. We review the district court’s
decision to admit evidence under Rules 403 and 404(b) only
for an abuse of discretion. See United States v. Williams, 238
F.3d 871, 874 (7th Cir. 2001).
We do not believe that the district court abused its dis-
cretion in admitting Stopher’s testimony that he and Mr.
Whitlow manufactured machineguns together in 1996 and
1997. The Government had the burden to prove beyond a
reasonable doubt that Mr. Whitlow knew that the guns he
possessed were machineguns. In addition, because the weap-
ons had been modified to operate as machineguns, the
Government, as a practical matter, also had to show that Mr.
Whitlow knew how to convert semiautomatic weapons to
automatic weapons. The evidence, therefore, was highly
probative of one of the elements of the offense.
The district court also took precautions to ensure that the
jury used the evidence only for a legitimate purpose—to es-
tablish Mr. Whitlow’s knowledge of the relevant weaponry
and to establish lack of mistake. The court gave the jury a
limiting instruction both at the time of Stopher’s testimony
and in the final jury instructions. We previously have rec-
ognized that such instructions help “minimize the prejudicial
effect of such evidence.” Williams, 238 F.3d at 876. Given the
fact that the court gave these instructions, and that Stopher’s
testimony regarding the manufacture of machineguns was
relevant and succinct (consisting of only a few sentences, see
Trial Tr. III at 142), we must conclude that the district court
did not abuse its discretion in holding that any prejudicial
impact was outweighed by the probative value of the
evidence and, therefore, that Mr. Whitlow was not unfairly
prejudiced by Stopher’s testimony.
No. 03-4222 15
Conclusion
For the foregoing reasons, 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-02-C-0072—8-25-04