United States v. William Boswell , 772 F.3d 469 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3641
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM BOSWELL,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cr-00098-WTL-MJD-1 — William T. Lawrence, Judge.
ARGUED SEPTEMBER 16, 2014 — DECIDED NOVEMBER 26, 2014
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge. A jury convicted defendant-appellant,
William Boswell (“Boswell”), of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The district court
sentenced Boswell under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), to 235 months—a bit over
nineteen and a half years—imprisonment, with a five-year
term of probation to follow. Boswell challenges both his
conviction and sentence on appeal. In regard to his conviction,
2 No. 13-3641
he argues that the district court committed reversible error
when it permitted the government to elicit testimony regarding
a tattoo of a firearm that he had on his neck. As to his sentence,
Boswell maintains that the prior convictions used to character-
ize him as an armed career criminal under § 924(e) were not
charged in the indictment and proven beyond a reasonable
doubt to the jury, in violation of his Fifth and Sixth Amend-
ment rights. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
On June 20, 2012, a federal grand jury returned a single-
count indictment charging Boswell with being a felon in
possession of two firearms (two revolvers) on January 26, 2011.
The charge stemmed from an investigation of Boswell that law
enforcement launched in December 2010. Boswell proceeded
to trial on the charge and, after two days of trial, the jury found
him guilty. The following facts are recited from the testimony
and evidence produced at trial.
In December 2010, the Anderson, Indiana, Police Depart-
ment received a tip from Jasmine White (“White”) that Bos-
well, a prior convicted felon, was in possession of firearms
available for purchase. White testified that she first met
Boswell in 2010, while working as a bartender at a bar that
Boswell frequented. She became more familiar with Boswell
after he began dating one of her friends, Chelsea Cunningham
(“Cunningham”). Eventually, Boswell and Cunningham began
staying nights at White’s residence, and ultimately Cunning-
ham took over White’s lease, living in the home with Boswell,
her son, and Monte Laswell (Boswell’s cousin) thereafter.
White testified that she began to observe Boswell treating
No. 13-3641 3
Cunningham and her son poorly and she became concerned
for Cunningham’s safety. For this reason, White decided to
alert the police upon discovering that Boswell was trying to
sell firearms.
On the basis of White’s tip, law enforcement planned a
sting operation. Special Agent John O’Boyle (“O’Boyle”) of the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
headed the operation. The initial plan called for Special Agent
Jeremy Godsave (“Godsave”), also ATF, to make an under-
cover purchase of firearms from Boswell directly. However,
when Boswell indicated to White that he would only sell to
someone he knew, the plan changed—White agreed to make
the purchase while accompanied by Godsave, who would
remain at a distance. The operation went forward in this
manner on January 26, 2011:
To set-up the firearms transaction, White made a
recorded phone call to Boswell in the presence of
O’Boyle and Godsave. She asked Boswell if he was
still home and if he still had guns to sell. The mate-
rial part of the call is as follows:
White: Ok, so I just come by and grab them then and
just bring them back to you?
Boswell: Yeah, you can, yeah you can come by and
grab them. That’s what I’m telling you, you can
come by and get them. I understand he ain’t going
to pay for them. He’s gotta see what he getting him.
Thereafter, White was equipped with an audio and visual
recorder on her person, and Godsave was outfitted with an
4 No. 13-3641
audio recording device. White and Godsave then drove to
Boswell’s residence. Upon arrival, White walked up to the
front door of the home, while Godsave waited in the car
parked out front. Boswell met White at the door and let her
inside. White reported that Cunningham, Cunningham’s
mother and son, and Monte Laswell were also present in the
home. Boswell led White into the kitchen, where he reached
into a cabinet and retrieved a brown paper sack, which
contained the two firearms listed in the indictment. Boswell
gave the guns to White and she made her way out. Upon her
return to the undercover vehicle, White gave the guns to
Godsave and made a second recorded phone call to Boswell
after Godsave had inspected the weapons. Both White and
Godsave spoke with Boswell during this call, which concerned
how the firearms worked, whether they were tied to any
crimes, the purchase price, and whether Boswell could acquire
more guns to sell. After Boswell and Godsave came to terms on
price, White returned to the home to make the payment.
Boswell met White at the front door, she gave him the money,
and he indicated that next time he would deal with Godsave
directly. This brief conversation was picked up by the audio
recording device on White’s person.
At trial, White, O’Boyle, and Trena Murphy (“Murphy”),
Boswell’s Indiana state probation officer, each identified
Boswell’s voice as that of the “male seller” on the audio
recordings made incident to the sting operation. White testified
that she had “no doubt” that it was Boswell’s voice on the
recordings. Murphy testified that she was able to identify
Boswell’s voice on the recordings as a result of having previ-
ously spoken with him over the phone and at a number of
No. 13-3641 5
probation-related meetings. Murphy also linked Boswell to the
phone number that White dialed to contact the gun seller.
O’Boyle testified that he was able to identify Boswell’s voice,
in part, on account of having conducted an unrecorded 10–15
minute interview with Boswell on October 11, 2011, during
which Boswell confessed to the firearms sale that occurred on
January 26, 2011.
At trial, Cunningham testified on Boswell’s behalf. She
stated that she had never seen firearms in their home, that she
had never seen Boswell handle a gun, that Boswell did not
abuse her or her son, and that there was no reason to believe
such abuse occurred. On cross-examination, Cunningham
admitted that she was not paying attention to the events that
took place between Boswell and White while they were in the
kitchen, as she was focused on her son at the time.
Boswell chose to take the stand. On direct examination, he
admitted to having a number of felony convictions, including
two Florida battery convictions, an Indiana aggravated battery
conviction, a conviction for dealing in stolen property, and a
conviction for conspiracy to introduce marijuana into a prison
facility. Boswell denied ever possessing any guns subsequent
to his first felony conviction and, in doing so, stated, “I don’t
mess with weapons.” Although he admitted to speaking with
O’Boyle in October 2011, he denied giving any sort of confes-
sion at that time. Rather, according to Boswell’s testimony, he
told O’Boyle, “I ain’t never sold no guns … I don’t use weap-
ons.” On cross-examination, the government confronted
Boswell with the audio recordings made incident to
the January 26, 2011, sting operation. Boswell denied that it
was his voice on the recordings and proceeded to challenge the
6 No. 13-3641
credibility of the government’s voice identification witnesses,
explicitly calling White, O’Boyle, and Murphy liars. The
government then sought permission from the district court to
ask Boswell about a tattoo of a firearm (a revolver) that he had
on his neck. After the district court overruled defense counsel’s
objection to the proposed inquiry, the cross-examination of
Boswell proceeded as follows:
Government: I believe you testified on your direct
that you don’t even like guns, correct?
Boswell: Yes, sir.
Government: Not since your grandfather committed
suicide, correct?
Boswell: Yeah.
Government: Well, if you don’t like guns so much,
why do you have a tattoo of one up there on your
neck?
Boswell: Because it’s back in the westerns. I like to
gamble; and it’s part of a western thing with cards,
poker and dice.
Government: But you do have a tattoo of a revolver,
correct?
Boswell: I have a tattoo of a 4-barrel Dillinger, yes,
sir.
Government: On your neck?
Boswell: Yes.
Government: A person who doesn’t like guns?
No. 13-3641 7
Boswell: I got it before my grandfather passed away,
yes, sir.
In its closing argument, the government commented on the
motivations, testimony, and demeanor of White and Boswell.
Specifically, in regard to Boswell, the government highlighted
his five prior felony convictions and firearm tattoo to demon-
strate that his testimony had been dishonest. Defense counsel’s
closing argument focused on credibility; in particular, the
defense attacked White’s credibility, stating that the evidence
“would support the conclusion that [White] has been exposed
as a monumental liar.” In rebuttal, the government rehashed
its argument that Boswell’s prior felony convictions and
firearm tattoo made his testimony incredible.
The jury returned a verdict of guilty. The district court
entered a judgment in accordance with the verdict. The
presentence report (“PSR”), issued in anticipation of sentenc-
ing, recommended that Boswell be sentenced as an armed
career criminal pursuant to 18 U.S.C. § 924(e). Under § 924(e)
any “person who violates section 922(g) … and has three
previous convictions … for a violent felony … shall be fined as
provided in this title, imprisoned not more than 10 years, or
both.”). Boswell objected to the PSR’s classification of him as
an armed career criminal under § 924(e) on a number of
grounds, inter alia, that his two Florida convictions could not
be counted for the purposes of the ACCA because they were
not charged in the indictment and proven beyond a reasonable
doubt to the jury. The district court dismissed Boswell’s
objections, determined that Boswell qualified as an armed
career criminal under § 924(e), and sentenced him to a term of
8 No. 13-3641
235 months imprisonment, with a five-year term of probation
to follow. Boswell now appeals.
II. DISCUSSION
Boswell raises two challenges on appeal: one that goes to
his conviction, the other to his sentence. We first tackle Bos-
well’s contention that his conviction must be reversed because
the district court erroneously permitted the government to
elicit testimony regarding his firearm tattoo.
A. Admission of the Firearm Tattoo Testimony
As discussed above, Boswell chose to waive his Fifth
Amendment right and testify in his own defense. On direct
examination, Boswell was asked, “Have you possessed any
firearms since you obtained your first felony conviction?” To
which he responded, “No, sir. I don’t mess with weapons.”
Boswell further stated on direct, “I’m a fighter. I don’t use
weapons.” On cross-examination, the government sought to
elicit testimony from Boswell regarding a tattoo of a revolver
that he had inked to his neck. In a bench conference, the
following exchange took place:
Government: I’ll ask this. I believe the defendant
indicated on his direct testimony that he doesn’t like
guns, that ever since his grandfather committed
suicide he doesn’t like them. I’m going to inquire as
to his tattoo. … I think that goes to his credibility,
which he’s made an issue by taking the stand.
Defense Counsel: It’s too much of a stretch between
a picture of a gun and a gun. … [j]ust because he
owns a picture of a gun and it happens to be on his
No. 13-3641 9
skin I don't think is enough of a connection to
impeach it as that.
The Court: I don’t think it’s otherwise objectionable.
I think it’s fair game.
On appeal, Boswell insists that the district court committed
reversible error in permitting the government’s proposed line
of inquiry regarding his firearm tattoo. According to Boswell,
the firearm tattoo testimony should have been excluded as
irrelevant under Federal Rule of Evidence 401. In the alterna-
tive, he claims that even if relevant, the firearm tattoo testi-
mony should have been excluded under Federal Rule of
Evidence 403 because the risk of unfair prejudice it engen-
dered significantly outweighed its probative value. We first
address the issue of relevancy.
1. Relevance and Rule 401
We agree with Boswell that defense counsel’s objection that
any questions regarding Boswell’s firearm tattoo were “too
much of a stretch” or lacked “enough of a connection to
impeach” squarely challenged the relevancy of the evidence.
Because a timely objection was made on the basis of relevance,
we review the district court’s corresponding evidentiary ruling
for abuse of discretion. We “will not substitute our opinion for
that of the trial judge merely because we may be inclined to
rule differently on the question of relevancy.” United States v.
Boros, 668 F.3d 901, 907 (7th Cir. 2012). Rather, a district court’s
evidentiary ruling “will be reversed ‘only where no reasonable
person could take the view adopted by the trial court.’” United
States v. Reese, 666 F.3d 1007, 1015 (7th Cir. 2012) (quoting
United States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008)). Given
10 No. 13-3641
the “low threshold” that Rule 401 comprehends for establish-
ing that evidence is relevant, Boswell faces a significant
obstacle in contending that the firearm tattoo testimony should
have been barred as irrelevant. See Boros, 668 F.3d at 907; see
also United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011)
(“[A]ll relevant evidence is admissible and the Rules define
relevance broadly.”); Int’l Merger Acquisition Consultants, Inc. v.
Armac Enters., Inc., 531 F.2d 821, 823 (7th Cir. 1976) (relevancy
standard is liberal).
The government maintains, as it did before the district
court, that the firearm tattoo inquiry was relevant to impeach
Boswell’s credibility, which he put in issue when he elected to
testify. The district court accepted the government’s position.
Because relevant evidence is admissible provided it is not
otherwise proscribed by law or rule, see Fed. R. Evid. 402, the
district court need only identify a legitimate basis for its ruling.
See United States v. Abel, 469 U.S. 45, 56 (1984) (“[T]here is no
rule of evidence which provides that testimony admissible for
one purpose and inadmissible for another purpose is thereby
rendered inadmissible; quite the contrary is the case.”).
Accordingly, we begin—and end—our analysis with the
district court’s adopted justification.
The rule is well established that when a criminal defendant
elects to testify in his own defense, he puts his credibility in
issue and exposes himself to cross-examination, including the
possibility that his testimony will be impeached. See, e.g.,
Brown v. United States, 365 U.S. 148, 154–55 (1958); United States
v. Tolliver, 454 F.3d 660, 667 (7th Cir. 2006); United States v.
Chevalier, 1 F.3d 581, 583 (7th Cir. 1993); United States v.
Amaechi, 991 F.2d 374, 379 (7th Cir. 1993); United States v.
No. 13-3641 11
Studley, 892 F.3d 518, 529 (7th Cir. 1989); United States v. Covelli,
738 F.2d 847, 856 (7th Cir. 1984). Boswell chose to testify and,
by doing so, he thrust his credibility in issue. The government,
in turn, was entitled to impeach Boswell’s testimony, i.e., cast
doubt upon his credibility as a witness. See Black’s Law Dictio-
nary (9th ed. 2009) (defining “impeachment evidence” as
“evidence used to undermine a witness’s credibility”). Im-
peachment can be effected in a number of ways, including
contradiction, which involves presenting evidence that the
substance of a witness’s testimony is not to be believed. See,
e.g., United States v. Douglas, 408 F.3d 922, 928 (7th Cir. 2005);
United States v. Poole, 207 F.3d 893, 898–99 (7th Cir. 2000);
United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996);
United States v. Kozinski, 16 F.3d 795, 805 (7th Cir. 1994).
Therefore, the question for us to resolve is whether the govern-
ment’s firearm tattoo-related inquiry had any tendency to
impeach, or cast doubt upon, the truthfulness of Boswell’s trial
testimony. See Fed. R. Evid. 401. As we view the matter, it did.
Boswell, in defending himself on direct examination,
sought to cast himself as someone who steers clear of guns,
asserting “I don’t mess with” and “I don’t use” weap-
ons—guns, in this case. Such a strategy was not without risk,
however. By portraying himself as someone who generally
does not associate with guns, Boswell “opened the door” for
the government to cross-examine and impeach him on that
testimony. See Douglas, 408 F.3d at 928; Poole, 207 F.3d at
898–99; Taylor v. National R.R. Passenger Corp., 920 F.2d 1372,
1375 n.3 (7th Cir. 1990); United States v. Gaertner, 705 F.2d 210,
216 (7th Cir. 1983). And, that’s what the government did on
cross-examination. After Boswell affirmed the government’s
12 No. 13-3641
characterization of his direct testimony as stating he did not
“like guns,” the government asked him about his firearm
tattoo. Although it may well be impossible to ascertain an
individual’s subjective motive or reasons for getting any
particular image memorialized on his or her skin, this does not
render the firearm tattoo testimony without impeachment
value, as Boswell seems to claim. Rather, a jury may draw a
number of reasonable inferences from the tattoo evidence.
Prominent among such inferences is that Boswell maintained
some degree of association with, or affinity for, guns—an
inference which casts doubt upon his testimony that he does
not “mess with” or “like” guns. Given the “low threshold” that
Rule 401 comprehends, we cannot say that the district court
abused its discretion when it allowed the government to ask
Boswell about his firearm tattoo.
2. Unfair Prejudice and Rule 403
Boswell next argues that the government’s inquiry regard-
ing his firearm tattoo should have been excluded under Rule
403 of the Federal Rules of Evidence. Rule 403 permits the
district court to exclude relevant evidence “if its probative
value is substantially outweighed by the danger of unfair
prejudice … .” Fed. R. Evid. 403. Since “‘most relevant evi-
dence is, by its very nature, prejudicial,’ we have emphasized
that evidence must be unfairly prejudicial to require exclusion.”
United States v. Hanna, 630 F.3d 505, 511 (7th Cir. 2010) (quoting
United States v. Thomas, 321 F.3d 627, 630 (7th Cir. 2003)).
“Evidence is unfairly prejudicial if it will induce the jury to
decide the case on an improper basis rather than on the
evidence presented.” United States v. Klebig, 600 F.3d 700, 713
(7th Cir. 2009); United States v. Rodgers, 587 F.3d 816, 822 (7th
No. 13-3641 13
Cir. 2009). The amount of prejudice that is acceptable varies
according to the amount of probative value the evidence
possesses. Vargas, 552 F.3d at 557. Because Boswell’s trial
counsel did not lodge a specific objection or make any refer-
ence to prejudice during the bench conference, we review for
plain error. See United States v. Christian, 673 F.3d 702, 707 (7th
Cir. 2012). On review for plain error, Boswell must show (1)
that the complained of error occurred, (2) that the error “was
so obvious and so prejudicial that a district judge should have
intervened without being prompted by an objection from
defense counsel,” and (3) that the error affected his “substan-
tial rights—meaning that [he] likely would have been acquit-
ted” absent the error. United States v. Haldar, 751 F.3d 450, 456
(7th Cir. 2014). “‘Once these three conditions have been met,
we may exercise our discretion to correct the error if it seri-
ously affects the fairness, integrity, or public reputation of
judicial proceedings.’” United States v. LeShore, 543 F.3d 935,
939 (7th Cir. 2008) (quoting United States v. James, 464 F.3d 699,
709 (7th Cir. 2006)). The plain error standard sets a tremen-
dously high bar, indeed one far too high for Boswell's argu-
ments to reach.
As indicated, the government’s firearm tattoo-related
inquiry bore on Boswell’s credibility. After Cunningham, the
only other defense witness, admitted that she was not paying
attention to White and Boswell when the firearms transaction
occurred, Boswell’s testimony stood as the only evidence
refuting the government's case. In other words, Boswell’s
credibility was not just in issue, but it was a major issue for the
jury to consider. Through his testimony, Boswell sought his
acquittal by placing before the jury the notion that he is
14 No. 13-3641
someone who deliberately steers clear of guns. Although the
firearm tattoo evidence did not unequivocally fly in the face of
his testimonial statements regarding his relationship with
guns, it certainly cast doubt upon the truthfulness of those
statements and his credibility as a witness. At the same time,
however, the government’s inquiry regarding Boswell’s
firearm tattoo did contain a significant prejudicial element. See
United States v. Thomas, 321 F.3d 627, 631–33 (7th Cir. 2003)
(holding the district court violated Rule 403 in permitting
government to introduce a picture of defendant’s gun tattoo on
its case in chief, where defendant was charged with being a
felon in possession and the court could not “see how the …
photo of the tattoo was admitted for any purpose other than to
establish [the defendant’s] propensity to possess guns”). This,
of course, is the crux of Boswell's “unfair prejudice” argument.
We afford the district court great deference when it comes
to the admissibility of evidence for good reason. Unlike the
district court, we are not in a position to observe the trial
proceedings first-hand and gauge the impact of the evidence
in the context of the proceedings as a whole. United States v.
Boone, 628 F.3d 927, 932 (7th Cir. 2010). Instead, we must rely
on the record on appeal. Neither of the parties’ briefs nor the
record indicate where on Boswell's neck the tattoo was located,
how big it was, how identifiable it was, where the jury sits in
the particular Indiana district court relative to the witness
stand or the defense table, etc. At oral argument, the govern-
ment did indicate that Boswell was wearing an open-collar
shirt at trial, but counsel could not say with any certainty
whether some or all of the jurors could identify the firearm
tattoo from the jury box. At any rate, the admissibility of the
No. 13-3641 15
fact that the tattoo existed under the circumstances of this case
was not error, clear or otherwise.
Furthermore, at trial, the government presented a collection
of recorded conversations made incident to the January 26,
2011, sting operation. Government witnesses White, O'Boyle,
and Murphy each identified Boswell’s voice as that of the
“male seller” in the recorded conversations. The only evidence
that called these voice identifications into question was the
testimony of Boswell himself, who, unsurprisingly, denied that
it was his voice on the recordings. Most significantly, however,
the audio recordings were played in open court. Accordingly,
the jury, who heard Boswell testify, was able to make its own
determination as to whether it was Boswell’s voice on the
recordings. Plainly stated, this determination was all but
outcome determinative in this case. Indeed, defense counsel
acknowledged this much in closing argument, telling the jury,
“If you think that you can … say that beyond a reasonable
doubt that the person you heard testify this morning (referring
to Boswell) is the person that’s on those recordings, then your
verdict will be guilty.” By finding Boswell guilty, we think the
jury made their view clear. Because the audio recordings made
incident to the sting operation comprise overwhelming,
untainted evidence of Boswell’s guilt, his challenge to his
conviction must fail.
B. Boswell’s Sentence under the ACCA
As this Court has recognized, it is hard to overstate the
consequences that flow from Boswell's status as an armed
career criminal. Although an ordinary felon found in posses-
sion of a firearm is subject to a term of imprisonment not to
16 No. 13-3641
exceed ten years, 18 U.S.C. § 924(a)(2), an armed career
criminal charged with possession of a firearm faces a manda-
tory minimum sentence of fifteen years and a maximum of life.
18 U.S.C. § 924(e)(1).
Subject to this comparatively harsh punishment, Boswell
now challenges his sentence on appeal, arguing that the three
qualifying felony predicates used to sentence him under the
ACCA had to be alleged in the indictment and proven beyond
a reasonable doubt to the jury. These failures, he claims,
violated his Fifth Amendment right to due process and Sixth
Amendment right to trial by jury, respectively. Boswell
concedes, however, that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), see, e.g.,
United States v. Long, 748 F.3d 322, 328–29 (7th Cir. 2014),
cert. denied sub nom. Coprich v. United States, — U.S. —, 134
S. Ct. 2832 (U.S. 2014), and he raises the argument merely to
preserve his right to seek review by the Supreme Court. In
Almendarez-Torres, the Supreme Court held that recidivism
used to enhance a defendant’s maximum penalty is not an
element of the crime that must be charged in the indictment
and proven to a jury beyond a reasonable doubt, but is instead
a traditional sentencing factor decided by the judge. 523 U.S. at
239, 243–44. Because Almendarez-Torres remains the law of the
land, we will continue to apply its holding until the Supreme
Court tells us otherwise. Accordingly, we decline to set aside
Boswell's sentence.
III. CONCLUSION
For these reasons, Boswell’s conviction and sentence are
AFFIRMED.