United States v. Inglese, Brian L. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1203
United States of America,
Plaintiff-Appellee,
v.
Brian L. Inglese and Earl F. Baumhardt, Jr.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 611--George M. Marovich, Judge.
Argued September 28, 2001--Decided March 8, 2002
Before Posner, Easterbrook, and Kanne,
Circuit Judges.
Kanne, Circuit Judge. Defendants Brian
Inglese and Earl Baumhardt were convicted
of firearm offenses pursuant to 18 U.S.C.
secs. 2 and 1001(a)(3). The district
court sentenced Inglese to 30 months
imprisonment and Baumhardt to 15 months
imprisonment. Defendants appeal and we
affirm.
I. History
A. Background
In 1998, both Inglese and Baumhardt
worked at B & H Sports, Ltd., a
federally-licensed gun store in Oak Park,
Illinois. During that time, Illinois law
required individuals to obtain a
Firearms’ Owner’s Identification ("FOID")
card in order to purchase guns from a gun
store such as B & H. Some individuals,
such as convicted felons, were barred
from obtaining FOID cards. In addition,
Illinois law required there to be a
waiting period between the time the
customer ordered the gun and the time the
customer took possession of the gun.
During the waiting period, the gun shop
was required to run a background check on
the customer to determine whether the
customer possessed a valid FOID card and
had ever been convicted of a felony.
Federal law required gun shops to record
the customer data and results of the
background check in an Acquisition and
Disposition Book ("A & D Book").
People without FOID cards were able to
circumvent Illinois law and obtain
firearms through "straw purchases." That
is the purchase of a firearm by one
individual (the "straw purchaser") on
behalf of another individual (the "actual
buyer"). This allowed the actual buyer to
obtain a gun even though he was legally
barred from buying one. When a customer
ordered a gun at B & H, a store employee
would create a sales receipt containing
the customer’s information and the
transaction details and would run a
background check on that customer. If the
transaction was a straw purchase,
however, the sales receipt would show the
straw purchaser’s information and the
background check would be on the straw
purchaser, rather than on the actual
buyer.
After the background check was run and
the waiting period had passed, the
customer would return to B & H to pick up
his gun. A store employee would then use
the sales receipt to create an ATF
firearms transaction form ("ATF Form")
and to complete the A & D Book entry. The
customer would fill out the top of the
ATF Form, providing personal information
and averring that he was the actual
buyer. Each B & H gun transaction,
therefore, would consist of two parts.
The first part consisted of the customer
agreeing to purchase a gun and of the
store employee creating a sales receipt
(the "front-end"). The second part
consisted of the customer taking
possession of the gun and filling out the
ATF Form and of the store employee
signing the ATF Form and completing the A
& D Book entry (the "back-end").
With a straw purchase, the information
on the sales receipt would cause the ATF
Form and the A & D Book entry to contain
false entries. The false entries
prevented the ATF from determining
whether convicted felons were purchasing
guns and made it impossible to trace a
gun to the actual buyer.
In an effort to stop these illegal gun
purchases from occurring, the City of
Chicago initiated "Operation Gunsmoke," a
sting operation where Chicago Police
officers would assume fake identities,
obtain fake FOID cards corresponding with
the assumed identities, and make straw
purchases at gun shops. While at the gun
shops, the officers would make statements
and behave in a manner that would
indicate that they were engaging in straw
purchases. Thus, if a gun shop sold a gun
to a Chicago Police officer, it could be
charged with violating federal law
(knowingly creating false ATF Forms and A
& D Book entries) and with violating
state law (knowingly selling a gun to an
actual buyer without an FOID card).
On twelve occasions between August 10
and November 9, 1998, Chicago Police
officers visited B & H as part of their
sting operation. The police officers
purchased twenty-five guns from B & H
during these visits. As a result of these
alleged straw purchases, a grand jury
returned a multiple-count superceding
indictment against B & H, Inglese, and
Baumhardt. For every alleged straw
purchase, the indictment contained two
counts. One count charged B & H and the
respective store employee with "knowingly
and willfully ma[king] and us[ing], and
caus[ing] to be made and used, false
writings and documents knowing that they
contained materially false, fictitious,
and fraudulent statements and entries" in
violation of 18 U.S.C. secs. 2 and
1001(a)(3)./1 The other count charged B
& H with knowingly delivering a gun to an
individual in violation of state law
pursuant to 18 U.S.C. sec. 922(b)(2) and
charged the respective store employee
with aiding and abetting this
violation./2 Inglese was charged with
participating in four straw purchases,
and Baumhardt was charged with
participating in two straw purchases. In
addition, the indictment charged B & H
and Inglese with three counts of
knowingly transferring guns that were
going to be used to commit a drug
trafficking crime, in violation of 18
U.S.C. sec. 924(h) ("drug trafficking
counts").
B. The Trial
At the joint trial, the government’s
first witness was Chicago Police Officer
Ron Korzeniewski, who testified to the
following: On August 10, 1998, while on
undercover duty, he went to B & H and
portrayed himself as "Ronald Czaja."
While there, Inglese offered to sell him
two 9-millimeter handguns. Officer
Korzeniewski then presented Inglese with
his FOID card, which bore the name
"Ronald Czaja." Officer Korzeniewski told
Inglese that he lost his previous handgun
while running from the police, but that
he had never been convicted of a felony.
He also told Inglese, "I think I figured
out who ratted me out to the cops where
I lost my 9 [millimeter]," and that he
was going "to get even with him." Officer
Korzeniewski and Inglese also discussed a
gun with a laser sight about which
Officer Korzeniewski asked, "If I point
the gun at somebody’s stomach, it will
hit them in the chest?" Inglese replied,
"Yeah." Inglese then began filling out a
sales receipt and asked Officer
Korzeniewski what his occupation was.
Officer Korzeniewski responded that he
"hung out in the streets," but told
Inglese to put down "sales." Inglese
wrote "sales" as "Czaja’s" occupation and
"target shooting" as his purpose for
buying the guns on the sales receipt,
even though he and Officer Korzeniewski
had never discussed target shooting.
Officer Korzeniewski returned to B & H
on August 14, 2000 to pick up his guns.
He was accompanied by undercover Chicago
Police Officer Bernard Kelly, who
portrayed FOID cardholder "Pete Cooney."
When Inglese presented Officer
Korzeniewski with one black 9-millimeter
gun and one gray and black 9-millimeter
gun, Officer Korzeniewski replied, "I
wanted two shiny identical guns, so when
I draw down, they will know it’s me,
they’ll know I mean business." Inglese
agreed to sell Officer Korzeniewski four
Lorcin 9-millimeter guns instead.
Officer Korzeniewski also testified that
on August 14, Officer Kelly told Inglese
that he needed a gun "for his girls"
because "they were getting ripped off and
needed protection." Inglese agreed to
sell Officer Kelly two Jennings .22
caliber pistols. The two officers then
left B & H with the four Lorcin 9-
millimeter guns.
Officer Kelly testified to the
following: On August 19, 2000, he and
Chicago Police Officer Robert McClain
went to B & H. Officer Kelly portrayed
FOID cardholder "Pete Cooney," and
Officer McClain portrayed non-FOID
cardholder "Jeff." When they arrived,
Inglese told them that "Ron" had just
been in the store--referring to Officer
Korzeniewski. Officer Kelly responded
that "Ron" owed him some money and that
he "got to get a Tec for his ass."
Officer Kelly then agreed to purchase an
Intratec 9-millimeter gun ("Tec-9").
Officer Kelly testified that based on his
experience, the Tec-9 was popular with
drug dealers. On the sales receipt,
Inglese wrote that "Cooney’s" purpose in
making the purchase was "target
shooting," even though he and Officer
Kelly had not discussed target shooting.
Inglese also wrote that "Cooney’s"
occupation was "laborer." The officers
then left the store with the two .22
caliber pistols that Officer Kelly had
agreed to purchase on August 14.
Officer Kelly testified that he and
Officer McClain went to B & H again on
September 9, 2000. While there, Inglese
asked Officer McClain if he had obtained
an FOID card, to which Officer McClain
responded that he could not obtain one
"for a bunch of reasons." Inglese then
handed Officer McClain a Calico semi-
automatic rifle and explained to him how
it worked. Officer McClain told Inglese
that he wanted to purchase the gun.
Officer Kelly also told Inglese that he
wanted to purchase a Beretta .45 caliber
gun. Officer McClain paid the deposit for
both guns. Because Officer McClain did
not have an FOID card, however, Officer
Kelly signed the sales receipt.
Therefore, Inglese performed the
background check on "Cooney" (the name on
Officer Kelly’s FOID card) rather than on
Officer McClain’s undercover identity.
Officer Kelly testified that when he and
Officer McClain returned to B & H a few
days later, Inglese again asked Officer
McClain if he had obtained an FOID card.
Officer McClain responded that he had not
and that therefore "Cooney" would be
handling all of the paperwork. When
Inglese presented the bill for the Calico
rifle and Beretta .45 caliber handgun,
Officer Kelly told Officer McClain to pay
for the Calico rifle, as that was his gun
and not Officer Kelly’s. Officer McClain
then took out $500 from his pocket (the
remaining balance on the Calico rifle)
and handed it to Inglese. Officer Kelly
paid for the remaining balance on the
Beretta .45 caliber gun. Officer Kelly
also testified that when he filled out
the ATF Forms for the two guns he and
Officer McClain purchased that day, he
indicated that "Cooney" was the actual
buyer of both guns, which was false
because Officer McClain was the actual
buyer of the Calico rifle.
Officer Kelly also testified about
events that provided the basis for two of
the four straw purchase counts against
Baumhardt. On September 17, 2000, he and
Officer McClain went to B & H. Howard
Zelenka (the co-owner of B & H) asked
Officer McClain if he had received his
FOID card yet, to which Officer McClain
testified that he had not. This
conversation took place in Baumhardt’s
presence. Baumhardt showed Officer
McClain a .40 caliber gun, and Officer
McClain agreed to purchase this gun.
Officer Kelly agreed to purchase two
different guns. When Baumhardt was
preparing the sales receipt for these
three guns, Officer Kelly told Officer
McClain to give him money for the gun
that Officer McClain was purchasing. When
Officer McClain reached into his pocket
and took out several hundred dollars,
Baumhardt asked Officer Kelly if he was
just borrowing that money, or if Officer
McClain was paying for some of the guns.
Before Officer Kelly could answer the
question, Baumhardt walked away from the
two officers and answered the phone. When
Baumhardt returned, Officer McClain
handed Baumhardt $600 (the amount of the
deposit for all three guns). Officer
Kelly then signed the sales receipt.
Officer Kelly also testified that
Baumhardt wrote "laborer" as "Cooney’s"
occupation and "target shooting" as his
purpose for purchasing the guns.
On September 21, 2000, when Officers
Kelly and McClain returned to B & H to
pick up the three guns that they had
ordered on September 17, Inglese was at
the store, but Baumhardt was not. Inglese
brought the officers their guns, and
Officer Kelly paid the balance on the
guns. Officer Kelly testified that he
filled out the ATF Form for these
purchases and indicated that he was the
actual buyer of all three of the guns,
and that Inglese signed the ATF Form and
completed the A & D Book entry. Officer
Kelly also testified that the information
he provided on the ATF Form was erroneous
because Officer McClain was the actual
buyer of one of the .40 caliber guns.
Officer McClain also testified at trial
and corroborated Officer Kelly’s
testimony in full.
The government’s next witness was
Yolanda Webb, who testified pursuant to a
grant of immunity. Webb testified about
several straw purchases that she engaged
in with her boyfriend Andre Smith. Smith
could not obtain an FOID card and asked
Webb to obtain a card and purchase guns
for him. Therefore, Webb obtained a valid
FOID card and went to B & H on several
occasions with Smith. For example, on
September 16, 2000, Webb and Smith went
to B & H and were helped by Baumhardt.
Smith pointed out two guns that he wanted
and asked Webb to ask Baumhardt how much
they cost. After Baumhardt told her the
price of the guns and the amount of the
deposit, Smith reached into his pocket
and took out the amount of money for the
deposit. While Baumhardt was watching
them, Smith then handed the money to
Webb, who immediately handed it to
Baumhardt. Webb testified that Baumhardt
then filled out a sales receipt for the
guns, using the information on Webb’s
FOID card. The sales receipt indicated
that Webb’s purpose for buying the guns
was "target shooting," even though she
and Baumhardt had never discussed target
shooting. Webb testified that a few days
later, she and Smith returned to B & H to
pick up the guns and were assisted by
Baumhardt again. Baumhardt asked Webb to
fill out an ATF Form and asked for
payment. Smith then took money out of his
pocket and gave it to Webb, who
immediately gave the money to Baumhardt.
Both Inglese and Baumhardt also
testified at trial. They claimed that
virtually everything the three officers
and Webb had said when they testified was
false. For example, Inglese testified
that on September 16 and 19, Webb had
come into B & H alone, had picked out the
guns herself, and had paid for the guns
with money that she had taken out of her
purse. Further, he testified that when
Officer Korzeniewski came into B & H on
August 10, he told Inglese that he wanted
guns that he could use for target
shooting and that he never mentioned
anything about getting "ripped off" or
needing to get even with someone who
"ratted him out." Inglese also testified
that on August 14, Officer Kelly told him
that he was a "construction laborer" and
that he never said anything about needing
a gun to "protect his girls." He also
denied that Officer Kelly told him that
he was going to get a "Tec for [Czaja’s]
ass," or that Officer McClain ever paid
for guns for which "Cooney" was the
actual buyer. Finally, Inglese testified
that there was nothing suspicious about
the purchases that Officers Korzeniewski
or Kelly made, and that if he had heard
any of the comments that the officers
claimed to have made, he would have
terminated the sales.
Baumhardt testified that on September
16, Webb came into the store alone,
picked out the guns that she wanted, and
paid for them with money that she took
out of her purse. He also testified that
on September 19, he was not in the store
and did not complete the bottom of the
ATF Form or the A & D Book entry for her
purchase. When shown the ATF Form for
Webb’s September 16 and 19 purchase, he
testified that the signature on the ATF
Form was Inglese’s. Baumhardt also denied
seeing or hearing anything suspicious
concerning the purchases made by Officers
Korzeniewski or Kelly.
After the close of the evidence and
closing arguments, the district court
instructed the jury. Because each of the
crimes that Inglese and Baumhardt were
charged with had a mens rea requirement
of "knowing" behavior, the district court
instructed the jury on what this meant
and gave the following instruction (the
"ostrich instruction"):
When I use the word "knowingly" or the
phrase the defendant "knew" as used in
these instructions, it means that the
defendant realized what he was doing and
was aware of the nature of his conduct
and did not act through ignorance,
mistake or accident. Knowledge may be
proved by the defendant’s conduct and by
all of the facts and circumstances
surrounding the case.
You may infer knowledge from a
combination of suspicion and indifference
to the truth. If you find that a person
had a strong suspicion that things were
not what they seemed or that someone had
withheld some important facts, yet shut
his eyes for fear of what he would learn,
you may conclude that he acted knowingly
as I have used that word. You may not
conclude that the defendant had knowledge
if he was merely negligent in not
discovering the truth.
The jury convicted Inglese of the eight
counts associated with his participation
in four straw purchases and convicted
Baumhardt of the four counts associated
with his participation in two straw
purchases. The jury acquitted Inglese on
the drug trafficking counts.
C. Sentencing
The district court sentenced Baumhardt
to 15 months imprisonment to be served
concurrently on each of the four counts
for which he was found guilty. The
district court sentenced Inglese to 30
months imprisonment to be served
concurrently on each of the eight counts
for which he was found guilty. In
sentencing Inglese, the district
courtincreased his offense level by four
levels pursuant to United States
Sentencing Guideline sec. 2K2.1(b)(5).
That Guideline applies to a defendant who
"transferred any firearm or ammunition
with knowledge, intent, or reason to
believe that it would be used or
possessed in connection with another
felony offense." U.S.S.G. sec.
2K2.1(b)(5).
II. Analysis
Inglese and Baumhardt raise the
following issues on appeal: 1) It was
reversible error for the district court
to give the ostrich instruction; 2) the
district court abused its discretion in
admitting certain evidence at trial; 3)
the district court erred in applying
Sentencing Guideline sec. 2K2.1(b)(5) to
Inglese’s sentence; 4) the district court
violated Baumhardt’s right to conflict-
free counsel; and 5) there was
insufficient evidence to support
Baumhardt’s conviction.
A. Ostrich Instruction
Inglese and Baumhardt contend that the
district court erred in giving the
ostrich instruction to the jury. However,
because neither of them objected to the
instruction at trial, they have forfeited
this argument on appeal, and we review
for plain error. See, e.g., United States
v. Griffin, 84 F.3d 912, 924-25 (7th Cir.
1996). Under plain error analysis, the
defendants must show the following: 1)
that the district court committed an
error; 2) that the error was clear or
obvious; and 3) that the error affected
substantial rights. See, e.g., United
States v. Olano, 507 U.S. 725, 732-34,
113 S. Ct. 1770, 123 L. Ed. 2d 508(1993). Thus, we must first determine
whether the district court erred in
giving the ostrich instruction. See id.
at 732-33. When addressing such a claim,
this court views the evidence in the
light most favorable to the government.
See United States v. Craig, 178 F.3d 891,
896 (7th Cir. 1999).
An ostrich instruction informs the jury
that actual knowledge and the deliberate
avoidance of knowledge are the same
thing. See id. The district court may
give an ostrich instruction "where the
defendant is prosecuted under a criminal
statute with a ’knowingly’ mens rea
component, and he or she claims [1] a
lack of guilty knowledge and [2] there
are facts and evidence that support an
inference of deliberate ignorance."
United States v. McClellan, 165 F.3d 535,
549 (7th Cir. 1999) (quotation omitted).
At trial, Inglese and Baumhardt clearly
claimed that they did not know that the
police officers and Webb engaged in straw
purchases. Therefore, we focus on whether
there was sufficient evidence that they
were deliberately ignorant of this fact
to justify the ostrich instruction.
Deliberate ignorance may be established
by "overt, physical acts as well as by
purely psychological avoidance, a cutting
off of one’s normal curiosity by an
effort of will." Craig, 178 F.3d at 896(quotation omitted).
For example, in United States v. Wilson,
134 F.3d 855, 858 (7th Cir. 1998), the
defendant was convicted of possessing
cocaine with the intent to distribute.
The government alleged that at a co-
defendant’s direction, the defendant
knowingly loaded a van with several large
trash bags full of cocaine, drove the van
to a nearby street, parked it, left the
keys inside, and watched someone drive
the van away. See id. at 868. At trial,
the defendant admitted that those facts
were true, but testified that he was not
aware that the trash bags contained
cocaine. See id. The district court found
that the defendant was faced with
suspicious circumstances--for example,
being asked to load large trash bags into
a van and to leave the van in the street
with the keys inside of it. See id.Because the defendant failed to ask
follow-up questions or take any other
action in the face of these suspicious
circumstances, the district court gave an
ostrich instruction to the jury. See id.We affirmed, holding that the defendant’s
testimony denying knowledge in the face
of suspicious circumstances was
sufficient to justify the ostrich
instruction. See id.; see also Craig, 178
F.3d at 897-98 (holding that defendant’s
"failure to ask questions that would
certainly arise from the circumstances .
. . is evidence that could lead a jury to
determine" that the defendant
deliberately avoided learning the truth)
(citation omitted).
In the present case, the record is
replete with evidence for the jury to
conclude that both Inglese and Baumhardt
were deliberately ignorant. For example,
Officers Kelly and McClain both testified
that they told Inglese and Baumhardt that
Officer McClain did not possess an FOID
card, but on several occasions, Officer
McClain paid for guns that were
purportedly being purchased by Officer
Kelly. Further, Webb’s testimony
indicated that Smith pointed out certain
guns, directed Webb to ask questions
about these guns, and paid for the guns,
even though Webb filled out the
paperwork. Finally, Officer Korzeniewski
testified that he made several self-
incriminating comments, such as that he
was going to get even with whomever
ratted him out, and that Inglese still
put down "sales" as his occupation on the
paperwork. In the face of these
suspicious circumstances, Inglese and
Baumhardt did not ask any follow-up
questions or take any action to find out
whether straw purchases were occurring.
In fact, Inglese testified that as long
as the FOID cardholder told him that the
guns were for him, he would not ask any
follow-up questions. Thus, as in Wilson
and Craig, Inglese and Baumhardt’s
failure to take any action in the face of
the suspicious circumstances that were
presented to them warranted the giving of
an ostrich instruction.
B. Evidentiary Issues
Next, Inglese and Baumhardt contend that
the district court made several erroneous
evidentiary rulings that require reversal
of their convictions. All of their
evidentiary arguments are meritless and
warrant minimal discussion. First, they
argue that the district court admitted
inadmissible hearsay when Webb testified
that her boyfriend Smith told her that he
had been in jail, that he was a member of
the Gangster Disciples street gang, and
that he was unable to obtain an FOID
card. We hold that the district court did
not abuse its discretion in ruling that
this evidence was not hearsay, as it was
offered for the effect it had on the
listener--to explain why Webb went to B &
H to purchase guns for Smith. See, e.g.,
United States v. Linwood, 142 F.3d 418,
425 (7th Cir. 1998) (holding testimony
was not hearsay where offered to show its
effect on witness).
Next, Inglese and Baumhardt assert that
the district court admitted unduly
prejudicial evidence when it allowed
Officer Kelly to testify that Tec-9 guns
were popular with drug dealers. This
evidence was relevant to the drug
trafficking counts as it tended to show
that Inglese sold firearms that he knew
were going to be used in the commission
of a drug trafficking crime. Further,
this evidence was relevant to the straw
purchase counts as it tended to show that
when Inglese and Baumhardt put down
"sales" and "laborer" as the undercover
officers’ occupations on the paperwork,
they knew that this information was
erroneous. The district court did not
abuse its discretion in finding that any
prejudice stemming from the admission of
this evidence did not substantially
outweigh its relevance. See United States
v. Medina, 755 F.2d 1269, 1274 (7th Cir.
1985) (noting that district court’s
determination on this issue is afforded
"great deference").
Inglese and Baumhardt also allege that
the government improperly referred to
certain guns as "machine pistols" and
"military-style assault rifles" in its
opening statement. Without citing any
authority, they allege that the use of
these terms was "highly inflammable"
because the government used these terms
in connection with guns that were not
technically machine guns or assault
rifles. Because neither defendant
objected to the use of these terms, we
review for plain error. See Griffin, 84
F.3d at 924-25. The district court
instructed the jury that opening
statements were not evidence. We have no
reason to believe that the jury
improperly relied on these statements,
and the defendants have offered nothing
to suggest otherwise. See, e.g., United
States v. Saadeh, 61 F.3d 510, 521 (7th
Cir. 1995). Therefore, the district court
did not commit plain error by failing to
strike these references.
Finally, Inglese and Baumhardt argue
that the government’s closing argument
was improper because it said that Inglese
offered to sell Officer Kelly a "machine
gun" and there was no evidence of that
fact. Defense counsel objected to the use
of the term "machine gun," and the
district court sustained this objection.
Even if the government’s comment was
improper, because Inglese and Baumhardt
received the relief that they requested,
there is no adverse ruling about which
they can complain. See United States v.
Whitaker, 127 F.3d 595, 606-07 (7th Cir.
1997) (holding that government’s improper
comment during closing argument was not
reversible error where the district court
sustained defendant’s objection to the
comment). Further, given the totality of
the circumstances, the government’s
comments did not have the inflammatory
impact necessary to warrant a reversal.
See id.C. Sentencing Enhancement
Inglese’s next argument is that the
district court improperly enhanced his
sentence under U.S.S.G. sec. 2K2.1(b)(5).
That Guideline applies to any defendant
who "transferred any firearm or
ammunition with knowledge, intent,
orreason to believe that it would be used
or possessed in connection with another
felony offense." Id. The district court
found that Inglese had "reason to
believe" that "one or more of [the] guns"
that he sold to Officers Korzeniewski or
Kelly "would be used in the commission of
a felony." We review this finding for
clear error. See United States v.
Jemison, 237 F.3d 911, 918 (7th Cir.
2001).
In Jemison, the defendant planned to
sell ten guns that he purchased from an
Illinois gun store to members of the
Gangster Disciple street gang. See id. at
913. The district court found that the
defendant "had reason to believe" that
the guns would be used for felonious
activities and enhanced the defendant’s
sentence by four levels pursuant to
U.S.S.G. sec. 2K2.1(b)(5). See Jemison,
237 F.3d at 915. On appeal, the defendant
argued that the district court erred in
enhancing his sentence because the
government did not show that he "had
reason to believe that the [guns] would
be used in a specific offense in the
future." Id. at 918 (quotation omitted)
(emphasis added). We affirmed the
sentencing enhancement even though the
district court made no findings regarding
whether the defendant knew which of the
ten guns he sold would be used to commit
a felony or which specific felony the
gang members would commit. See id. We
held that the defendant "had reason to
believe" that the guns he sold would be
used to commit a felony because the
Gangster Disciples were "an infamous
nationwide criminal organization" and
because of the connection between street
gangs and felonies. Id.In our case, there is ample evidence to
suggest that Inglese "had reason to
believe" that at least one of the guns he
sold to the undercover police officers
would be used to commit a felony.
U.S.S.G. sec. 2K2.1(b)(5). For example,
Officer Kelly told him that he needed to
buy a Tec-9 with which to shoot Czaja.
Further, Officer Korzeniewski told him
that he needed to buy guns in order to
get even with the person who ratted him
out to the police. He also told Inglese
that he wanted identical guns "so that
when [he draws] down, they would know
it’s [him], they’ll know [he] mean[s]
business." Finally, he asked Inglese, "if
I point the gun at somebody’s stomach, it
will hit them in the chest?" These
comments clearly gave Inglese "reason to
believe" that the undercover police
officers would commit felonies with the
guns that they purchased from B & H.
U.S.S.G. sec. 2K2.1(b)(5). That the
district court did not make specific
findings regarding whether Inglese knew
which guns would be used to commit which
felonies is irrelevant. See Jemison, 237
F.3d at 918.
D. Conflict-Free Counsel
On appeal, Baumhardt argues that he
received ineffective assistance of
counsel because his trial counsel was not
"free from conflicts of interest." Wood
v. Georgia, 450 U.S. 261, 271, 101 S. Ct.
1097, 67 L. Ed. 2d 220 (1980). However,
Baumhardt has waived the right to raise
this issue on appeal. At trial, Joel
Ostrander represented both Baumhardt and
B & H but not Inglese. The government
filed a motion to disqualify Ostrander
from his joint representation because
Baumhardt and B & H appeared to have
conflicting interests. In response,
Ostrander claimed that both of his
clients wished to waive their right to
conflict-free counsel and had signed a
waiver to that effect. The waiver form
indicated that Baumhardt had discussed
this issue with Ostrander, that he
understood the potential conflict, that
he understood his Constitutional rights,
and that he wished to waive any potential
conflicts of interest and remain
represented by Ostrander. More
importantly, Baumhardt averred: "I
understand that this waiver of conflict-
free counsel includes the waiver of my
right to claim ineffective assistance of
counsel on this ground, either on appeal
or in any post-conviction proceeding."
After reviewing the waiver form, the
district court engaged in the following
colloquy with Baumhardt:
The Court: Mr. Baumhardt, did you read the
motion [to disqualify Ostrander]?
Baumhardt: Yes sir.
The Court: Do you understand what the
problem is?
Baumhardt: Yes sir.
The Court: Real or imaginary?
Baumhardt: Yes sir.
The Court: Did you discuss it with Mr.
Ostrander?
Baumhardt: Yes sir.
The Court: Did you discuss it with anyone
else?
Baumhardt: No sir.
The Court: Did you discuss it with Mr.
Zelenka [the co-owner of B & H]?
Baumhardt: No sir.
The district court then accepted the
waiver and denied the government’s
motion.
On appeal, Baumhardt contends that his
appellate waiver should not be enforced.
However, we have held that appellate
waivers are enforceable if made knowingly
and voluntarily and if not amounting to
empty promises. See United States v.
Williams, 184 F.3d 666, 668 (7th Cir.
1999); United States v. Wegner, 58 F.3d
280, 281-82 (7th Cir. 1995). "Most
waivers are effective when set out in
writing and signed." Wegner, 58 F.3d at
282. In Wegner, the defendant entered
into a written plea agreement, one
provision of which stated: "I expressly
waive any and all rights . . . to appeal
my sentence." Id. at 281. We held that
the appellate waiver was enforceable
because it was made knowingly and
voluntarily, as evidenced by the fact
that the waiver provision was express,
was in writing, and was signed by the
defendant. See id. Further, we noted that
the defendant had bargained for a benefit
(the prosecutor’s recommendation for a
more lenient sentence) in exchange for a
detriment (a guilty plea and an appellate
waiver), and after receiving his
bargained-for benefit, the defendant was
merely seeking to repudiate his part of
the deal. See id. at 282-83.
As in Wegner, Baumhardt’s appellate
waiver was express ("I understand that
this waiver of conflict-free counsel
includes the waiver of my right to claim
ineffective assistance of counsel . . .
on appeal.") was in writing and was
signed by Baumhardt. Further, the waiver
form and colloquy conducted by the
district court indicate that Baumhardt’s
waiver was voluntary and knowing and was
not an empty promise. Therefore, as in
Wegner, we hold that Baumhardt’s
appellate waiver is enforceable.
E. Insufficiency of the Evidence
Baumhardt’s last argument on appeal is
that the evidence was insufficient for
the jury to convict him on two of the
straw purchase counts, which charged that
he "knowingly and willfully made and
used, and caused to be made and used,
false writings and documents." 18 U.S.C.
secs. 2, 1001(a)(3) (emphasis added).
These two counts related to the alleged
straw purchases that took place at B & H
on September 16 and 19 with Webb and on
September 17 and 21 with Officer Kelly.
We may overturn the jury verdict "only if
the record contains no evidence from
which the jury could have found guilt
beyond a reasonable doubt." United States
v. Viezca, 265 F.3d 593, 597 (7th Cir.
2001) (quotation omitted). In addition,
in assessing Baumhardt’s claim, we view
the evidence in the light most favorable
to the government and draw all reasonable
inferences in its favor. See id.Baumhardt does not dispute that there
was sufficient evidence to implicate him
in the front-ends of the September 16 and
17 transactions. Rather, he argues that
because he did not complete the ATF Forms
and A & D Book entries for these
purchases, the convictions on these two
counts cannot lie. Baumhardt’s argument,
however, ignores the language of the
indictment and the jury instructions. The
indictment charged that Baumhardt
"knowingly and willfully made and used,
and caused to be made and used, false
writings and documents." 18 U.S.C.
secs. 2, 1001(a)(3) (emphasis added).
Further, the jury instructions stated
that a "statement or entry is fraudulent
if known to be untrue and made or caused
to be made with intent to deceive."
(emphasis added). Therefore, even if
Baumhardt did not complete the ATF Forms
and A & D Book entries for these
purchases, he could be convicted if the
evidence showed that he "caused" these
false entries to be completed.
Officers Kelly and McClain both
testified that on September 17, Baumhardt
heard Officer McClain say that he did not
have an FOID card and saw Officer McClain
pay for some of the guns even though
Officer Kelly was the purported actual
buyer. Further, they testified that
Baumhardt filled out the sales receipt
for these purchases and indicated that
Officer Kelly’s occupation was "laborer"
and his purpose for buying the guns was
"target shooting." Webb testified that on
September 16, she and Smith, who did not
possess an FOID card, went to B & H.
Smith pointed out two guns that he wanted
and asked Webb to ask Baumhardt how much
they cost. After Baumhardt told her the
price of the guns and the amount of the
deposit, Smith reached into his pocket
and took out the amount of money for the
deposit. While Baumhardt was watching
them, Smith then handed the money to
Webb, who immediately handed it to
Baumhardt. Webb testified that Baumhardt
then filled out a sales receipt for the
guns, using the information on Webb’s
FOID card. The sales receipt indicated
that Webb’s purpose for buying the guns
was "target shooting," even though she
and Baumhardt had never discussed target
shooting.
The evidence showed that Baumhardt
created the sales receipts in Officer
Kelly’s and Webb’s names with knowledge
that they were not the actual buyers. The
completion of the sales receipts was a
critical step towards the completion of
the straw purchases because the B & H
employee would do the background check on
the name that appeared on the sales
receipt. Moreover, the entries on the ATF
Forms and in the A & D Books would be
made from the information contained in
the sales receipts. Thus, because the
evidence clearly showed that Baumhardt
created the sales receipts with knowledge
that they contained false information,
there was sufficient evidence for a
rational juror to find that he "caused"
false ATF Forms and A & D Book entries to
be made.
III. Conclusion
For the foregoing reasons, we AFFIRM.
FOOTNOTES
/1 18 U.S.C. sec. 1001(a)(3) provides:
"[W]hoever . . . makes or uses any false writing
or document knowing the same to contain any
materially false, fictitious, or fraudulent
statement or entry; shall be fined under this
title or imprisoned not more than 5 years, or
both."
/2 18 U.S.C. sec. 922(b)(2) provides:
It shall be unlawful for any . . . licensed
dealer . . . to sell or deliver any firearm to
any person in any State where the purchase or
possession by such person of such firearm would
be in violation of any State law . . . unless the
licensee knows or has reasonable cause to believe
that the purchase or possession would not be in
violation of such State law.