United States v. Samy Hamzeh ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3072
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
SAMY M. HAMZEH,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16-cr-21-pp — Pamela Pepper, Chief Judge.
____________________
ARGUED OCTOBER 1, 2020 — DECIDED FEBRUARY 3, 2021
____________________
Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
MANION, Circuit Judge. Samy Mohammed Hamzeh was
charged with illegal possession of two machineguns and a si-
lencer, in violation of 26 U.S.C. § 5861(d). Before trial, he
raised an entrapment defense, arguing he was induced by
government informants and lacked the predisposition to
2 No. 19-3072
obtain these weapons. In four pretrial orders, 1 the district
court excluded many of his recorded statements and evidence
of the availability of parts that could be used to assemble ma-
chineguns. The day before trial was scheduled to begin, the
Government filed this interlocutory appeal, pursuant to
18 U.S.C. § 3731. Because we find the court abused its discre-
tion through the commission of legal errors in considering the
evidence, we reverse and remand for further proceedings.
I. Background
In the light most favorable to the Government, as the pro-
ponent of the evidence, 2 the facts are as follows: Hamzeh’s
close friend, Steve, contacted the FBI because he was con-
cerned that Hamzeh planned to commit a mass killing. In Sep-
tember 2015, Steve began working with the FBI, and the FBI
also involved another informant named Mike, who began
working with Hamzeh and Steve at a restaurant.
In October 2015, Steve recorded his conversations with
Hamzeh. Then, in November 2015, Mike began recording his
1 The majority of one of these orders concerns whether Hamzeh could ad-
mit additional excerpts based on the rule of completeness. We do not
opine on that matter. See generally 18 U.S.C. § 3731. We confine our review
of that order to the two exclusions of the Government’s evidence made
therein.
2 On appeal, we view the facts in the light most favorable to the Govern-
ment. United States v. Connelly, 874 F.2d 412, 415 (7th Cir. 1989). Upon ex-
amination of the record, it appears the district court adopted Hamzeh’s
factual proffer by setting forth the facts from his motion in limine. The dis-
trict court should have evaluated the Government’s proffers. See United
States v. Tatum, 548 F.3d 584, 587 (7th Cir. 2008) (explaining that the Gov-
ernment must lay a proper foundation for the admissibility of its evi-
dence).
No. 19-3072 3
conversations with Hamzeh, as well. During these conversa-
tions, Hamzeh spoke about committing acts of terrorism to be
martyred as part of his Islamic faith, carrying out a shooting
in the Middle East, committing a domestic shooting at a Ma-
sonic lodge, and acquiring weapons to complete these crimes.
The recordings span from October 13, 2015, to January 25,
2016, the day Hamzeh would eventually acquire two ma-
chineguns and a silencer.
At some point during the informants’ interactions with
Hamzeh, authorities felt Mike and Steve could not maintain a
relationship with Hamzeh unless they escorted him to shoot-
ing ranges and gun stores. The FBI instructed Mike and Steve
to offer to arrange a purchase if Hamzeh wanted a weapon so
authorities could set up a sting operation. On January 25,
2016, Hamzeh and the informants negotiated with two under-
cover FBI Special Agents posing as arms dealers for the pur-
chase of two machineguns and a silencer. Hamzeh carried the
unregistered weapons to his vehicle and was arrested. After
his arrest, FBI agents recorded interviews with Hamzeh. He
was later indicted by a grand jury.
Before trial, the district court granted Hamzeh leave to
present an entrapment defense. As a result, the Government
moved in limine to admit excerpts of Steve’s and Mike’s rec-
orded conversations with Hamzeh to show lack of entrap-
ment. In ruling, the district court expressed concern with a
jury convicting Hamzeh of possession based on his planning
terrorist attacks and his “disturbing talk” rather than the Gov-
ernment’s having proved the elements of the offense. The
4 No. 19-3072
court also found motive was irrelevant to a § 5861(d) 3 viola-
tion because it was not an element of the offense. Ultimately,
the court admitted some of the Government’s evidence and
excluded a substantial portion as “irrelevant,” “not proba-
tive,” or “unduly prejudicial.”
The Government also sought to admit evidence about the
availability of conversion kits and other items meeting the
statutory definition of “machinegun” under 26 U.S.C.
§ 5845(b). Hamzeh moved to exclude this evidence, and the
district court granted Hamzeh’s motion. Specifically, the
court ruled the Government could present evidence about the
availability of machineguns to rebut Hamzeh’s assertion ma-
chineguns are difficult to acquire on the street. However, it
found evidence “about the availability of devices that convert
semi-automatic firearms to automatic weapons, the cost of
these devices [and] the ease of obtaining them through online
retailers” was inadmissible.
After the court issued these rulings, and one day before
trial, the Government filed this interlocutory appeal.
II. Discussion
At this stage in the proceedings, our narrow question is
whether the district court abused its discretion in excluding
the Government’s evidence. The Government argues we do
not owe deference to the district court’s ruling since it oc-
curred pretrial. However, “[w]e review the district court’s ev-
identiary rulings during trial or beforehand on motions in limine
for an abuse of discretion.” Arrigo v. Link, 836 F.3d 787, 794
3 Presumably, the court meant § 5861(d), but the actual order states
§ 5261(d).
No. 19-3072 5
(7th Cir. 2016) (emphasis added). “A district court by defini-
tion abuses its discretion when it makes an error of law.” Koon
v. United States, 518 U.S. 81, 100 (1996).
To the extent we must address the court’s interpretation of
the rules of evidence, we apply a de novo standard of review.
United States v. Rogers, 587 F.3d 816, 819 (7th Cir. 2009). We
also review de novo any underlying legal conclusions in the
district court’s grant of a motion in limine. See United States v.
Wade, 962 F.3d 1004, 1011 (7th Cir. 2020).
The Government seeks admission of recorded statements
Hamzeh made while talking to the informants, and later to
law enforcement, along with evidence about the availability
of parts used to assemble machineguns. 4 We address each of
these categories in turn.
A. Recorded Statements
The Government seeks admission of Hamzeh’s statements
planning an attack in the Middle East 5 and a domestic attack
on a Masonic center. It also challenges exclusion of Hamzeh’s
recorded statements to law enforcement after his arrest. 6 The
4 In a single paragraph, the Government states the fact Hamzeh’s recorded
statements about attacks in the Middle East are relevant makes Dr. Levitt’s
expert testimony on conflicts in the Middle East admissible. The Govern-
ment fails to cite authority, to cite the record, or to present a meaningful
argument. Fed. R. App. P. 28(a)(8). We deem the issue forfeited.
5 The court noted the statements about killing people overseas were made
after Hamzeh met Mike and after Steve started working with the Govern-
ment. The timing goes to the weight and credibility of the evidence, not
its admissibility.
6It appears Hamzeh was issued Miranda warnings, and the Fourth
Amendment is not at issue.
6 No. 19-3072
court excluded the evidence on relevance grounds and, in
many instances, implied the evidence violated Rule 403 of the
Federal Rules of Evidence.
i. Relevance
The Government first argues the district court improperly
found evidence bearing on Hamzeh’s predisposition to obtain
a machinegun was “not probative” or “irrelevant.” We agree.
Whether evidence is relevant is a low threshold. United States
v. Driggers, 913 F.3d 655, 658 (7th Cir. 2019). Relevant evidence
is that which “has any tendency to make a fact … of conse-
quence” any “more or less probable than it would be without
the evidence.” Fed. R. Evid. 401. A fact of consequence in-
cludes one that is “ultimate, intermediate, or evidentiary.”
Fed. R. Evid. 401 advisory committee’s notes. Consequently,
what must be proven at trial in this case is germane to the rel-
evance inquiry.
Hamzeh is charged with violating 26 U.S.C. § 5861, which
states in relevant part, “It shall be unlawful for any per-
son … to receive or possess a firearm which is not registered
to him in the National Firearms Registration and Transfer
Record.” § 5861(d). The Government must show (1) Hamzeh
consciously possessed a firearm; (2) he knew the features
which brought the firearm “within the realm of regulation”
(specifically, the automatic nature of the machineguns and the
silencing effect of the silencer); and (3) the firearm was not
registered. United States v. Jamison, 635 F.3d 962, 967–68 (7th
Cir. 2011) (quoting United States v. Edwards, 90 F.3d 199, 205
(7th Cir. 1996)). Regarding the third element, there is no re-
quirement the Government show Hamzeh knew the weapons
were unregistered, knew they were required to be registered,
or intended not to register them. Id. at 968; see also United
No. 19-3072 7
States v. Freed, 401 U.S. 601, 607 (1971) (holding no scienter is
required for the registration element).
Further, the district court allowed Hamzeh to raise the en-
trapment defense. 7 Once raised, the Government must show
either (1) law enforcement and government agents did not in-
duce Hamzeh to commit the crime or (2) Hamzeh was predis-
posed to commit the crime. See United States v. Blitch, 773 F.3d
837, 843 (7th Cir. 2014); see also United States v. Hilliard, 851
F.3d 768, 783 (7th Cir. 2017).
Governmental inducement occurs when the government
solicits the crime “plus some other government conduct that
creates a risk that a person who would not commit the crime
if left to his own devices will do so in response to the govern-
ment’s efforts.” United States v. Mayfield, 771 F.3d 417, 434–35
(7th Cir. 2014). For example, “repeated attempts at persua-
sion, fraudulent representations, threats, coercive tactics, har-
assment, promises of reward beyond that inherent in the cus-
tomary execution of the crime, pleas based on need, sympa-
thy, or friendship” may each constitute such “other conduct.”
Id. at 435.
Predisposition to commit a crime occurs when a defendant
was “‘ready and willing’ to commit the charged crime and
‘likely would have committed it without the government’s in-
tervention, or actively wanted to but hadn’t yet found the
means.’” Blitch, 773 F.3d at 845 (quoting id. at 438). This Cir-
cuit examines several factors in deciding whether a defendant
is predisposed. See Mayfield, 771 F.3d at 435. These include:
7Whether allowing the entrapment defense was proper is not before this
Court.
8 No. 19-3072
(1) the defendant’s character or reputation; (2) whether
the government initially suggested the criminal activ-
ity; (3) whether the defendant engaged in the criminal
activity for profit; (4) whether the defendant evidenced
a reluctance to commit the offense that was overcome
by government persuasion; and (5) the nature of the in-
ducement or persuasion by the government.
Id. (quoting United States v. Pillado, 656 F.3d 754, 766 (7th Cir.
2011)). While no single factor is dispositive, the most im-
portant factor is “whether the defendant was reluctant to
commit the offense.” Id. (quoting Pillado, 656 F.3d at 766).
Against this background, we examine the court’s rele-
vance rulings. 8 First, in examining the recorded statements
between Hamzeh and the informants, the court repeatedly ex-
cluded evidence as irrelevant or “not probative.” For exam-
ple, the court excluded a conversation in which Hamzeh
stated it was his “intention a long time ago” to martyr himself.
It found the statement irrelevant concerning predisposition.
8 In ruling on the admissibility of Hamzeh’s recorded statements with the
informants, the court used “probative” and “relevant” synonymously. See
Dkt. 342 at 14 (“When the court opines below that a particular statement
is probative of the defendant’s predisposition, it means that the statement
is relevant for the jury to consider in determining whether the statement
shows predisposition or was the result of inducement.”); c.f. Old Chief v.
United States, 519 U.S. 172, 184 (1997) (explaining “probative value” is de-
termined by “comparing evidentiary alternatives” while relevance is de-
termined in a vacuum); see generally Fed. R. Evid. 401 advisory commit-
tee’s notes (explaining relevance is determined “as a relation between an
item of evidence and a matter properly provable in the case,” not in relation
to other evidence (emphasis added)). Thus, when it found evidence “not
probative,” it found that evidence irrelevant. See generally Fed. R. Evid. 402
(“Irrelevant evidence is not admissible.”).
No. 19-3072 9
Under Mayfield and its progeny, a defendant’s statement
about when his intent to use a weapon was formed is certainly
relevant. Hamzeh’s mental state and predisposition to obtain
a machinegun will be central issues at trial. The fact Hamzeh
stated he intended to commit an attack a long time ago, if be-
lieved by the jury, makes it more likely he was predisposed to
obtain two machineguns and a silencer.
The court expressed concern about conflating predisposi-
tion to commit a mass attack with predisposition to commit
the charged offenses of possession. These two concepts are
not mutually exclusive under the law of relevance. If believed
by the jury, the fact Hamzeh wanted to commit a mass attack
is evidence he was predisposed to obtain the weapons neces-
sary to do so.
The court also erred in excluding Hamzeh’s statement,
“But I am absolutely sure that the police won’t hear about the
incident; they won’t hear about it.” The Government can in-
troduce this evidence to show Hamzeh’s predisposition to ob-
tain a silencer and as evidence bearing on the second element
of the offense. Concerning the latter, the Government must
show Hamzeh knew of the silencing effect of the silencer he
possessed. While the jury is free to believe or disbelieve the
Government’s interpretation of the statement, it is relevant for
these purposes.
The court also excluded a passage in which Hamzeh dis-
cussed what type of weapons he sought to acquire. On Janu-
ary 23, 2016, two days before he was arrested for unlawfully
purchasing the weapons, he stated, “Listen, what we need
from those people, two machineguns, and three silencers and
three magazines.” Again, this evidence relates to the
10 No. 19-3072
reluctance factor of predisposition and shows Hamzeh’s men-
tal state close to the date of the offense, which is highly rele-
vant.
Most strikingly, the court excluded a recording of inform-
ant Steve telling Hamzeh he should not simply postpone his
plans but should “[g]et the whole idea out of [his] head.” Be-
fore this statement, Hamzeh spoke about the fact his father
tried to convince him not to travel abroad for an attack. Steve
responded, “Well why don’t you give up the whole idea and
stop this thing?” The court found the passage irrelevant.
These statements clearly bear on the governmental induce-
ment prong of the entrapment defense, in which repeated at-
tempts at persuasion is a factor. The Government can intro-
duce this evidence to show Steve attempted to dissuade Ham-
zeh from carrying out an attack, and necessarily from acquir-
ing the weapons to do so.
Next, the court found motive irrelevant because it is not
an element of the crime. 9 We have held motive to possess a
9 Citing United States v. Khatib and United States v. Brown, the court came
to this conclusion, but we interpret these cases differently. See generally
Khatib, 706 F.2d 213, 216–17 (7th Cir. 1983) (holding the fact a government
agent’s possession of firearms was exempt from the registration require-
ment did not provide a defense in a prosecution under 26 U.S.C.
§ 5861(d)); Brown, 548 F.2d 204, 209 (7th Cir. 1977) (finding criminal liabil-
ity attaches “regardless of the motives of either party to the transaction”
and good intentions could not provide a defense to the crime of posses-
sion). However, the relevant language in those cases merely establishes
that a defendant’s motive for not registering a firearm is irrelevant. In those
instances, introduction of evidence of motive to excuse the registration el-
ement of 26 U.S.C. § 5861(d) is irrelevant since the registration element is
a strict liability element of the overall crime. See Freed, 401 U.S. at 607;
Jamison, 635 F.3d at 967–68. On the other hand, in this case, the
No. 19-3072 11
firearm is relevant, despite not being an element of the crime,
because it makes the element of possession more probable.
U.S. v. Lloyd, 71 F.3d 1256, 1264 (7th Cir. 1995). As Hamzeh
points out, physical possession is not disputed since he will
concede that fact at trial. He argues his concession makes ev-
idence of motive to possess the firearms irrelevant since the
possession element would therefore not be “in issue.”
This argument is misguided. Under Rule 401, the evidence
need only affect a fact “of consequence,” which includes any
ultimate fact. See Fed. R. Evid. 401. As stated above, posses-
sion is one of the ultimate facts the Government must show,
whether disputed or not. Relevant evidence remains relevant
even if directed to an undisputed fact. Old Chief, 519 U.S. at
179; see Fed. R. Evid. 401 advisory committee’s notes (“The
fact to which the evidence is directed need not be in dispute.
While situations will arise which call for the exclusion of evi-
dence offered to prove a point conceded by the opponent, the
ruling should be made on the basis of such considerations as
waste of time and undue prejudice (see Rule 403) … .”). Alt-
hough the court committed legal error in finding motive irrel-
evant, as Hamzeh correctly points out, the error is academic
because the Government sought to introduce evidence of mo-
tive to show predisposition, and the court considered its evi-
dence as it relates to predisposition. So, the errors affecting
the Government’s case were the court’s relevance rulings
finding the evidence not probative or relevant to entrapment.
The specific statements in this section are merely some of
the many instances in which the court excluded evidence that
Government offers evidence of motive regarding the possession element,
not the registration element.
12 No. 19-3072
is indeed relevant to the entrapment issue. By our count, the
court ruled at least sixty times that evidence was not proba-
tive or relevant to entrapment. While we find the excluded
evidence relevant, it is not automatically admissible. See Fed.
R. Evid. 402. It is still subject to other rules of evidence.
ii. Rule 403
Second, the Government argues the court abused its dis-
cretion under Rule 403. See generally Fed. R. Evid. 403. After
the district court ruled the Government’s evidence irrelevant,
it used language similar to that found in Rule 403 of the Fed-
eral Rules of Evidence, stating the evidence failed scrutiny un-
der that rule, as well. 10 Rule 403 gives judges discretion to
10 Without explicitly ruling on these grounds, the court also expressed
concern that admission of evidence about using machineguns to commit
attacks abroad may violate Rule 404(a)(1) and Rule 404(b)(1) of the Federal
Rules of Evidence. The Government does not seek to introduce this evi-
dence to prove character, a character trait, or conduct in conformity on a
particular occasion. See generally Fed. R. Evid. 404; see also United States v.
Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc) (explaining other-act ev-
idence is admissible under Rule 404(b) “only when its admission is sup-
ported by some propensity-free chain of reasoning”); see also United States
v. Rogers, 587 F.3d 816, 822 (7th Cir. 2009) (clarifying 404(b) only “bars one
particular inference from prior-act evidence”). Instead, it seeks to intro-
duce the evidence as it relates to the entrapment defense, discussed above.
Further, one of the factors in determining whether a defendant is predis-
posed is character or reputation, putting character “in issue.” See generally,
Fed. R. Evid. 404 advisory committee’s notes (explaining “character in is-
sue” occurs when character is “an element of a crime, claim, or defense.”
(emphasis added)); see also Gomez, 763 F.3d at 858 (explaining other-act
evidence is inadmissible to show intent in a case involving a general-intent
crime “unless the defendant puts intent ‘at issue’ beyond a general denial
of guilt”).
No. 19-3072 13
exclude relevant evidence “if its probative value is substan-
tially outweighed by a danger of … unfair prejudice, confus-
ing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. Since the court erroneously found the Govern-
ment’s evidence irrelevant, it necessarily was not properly
able to weigh probative value against the danger of unfair
prejudice to determine whether the latter substantially out-
weighed the former. While we would normally review exclu-
sions of evidence under Rule 403 for abuse of discretion, 11 the
better approach in this case is to remand for reweighing under
Rule 403, since the errors made under the court’s Rule 401 de-
termination necessarily affected its Rule 403 determination.
See Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982)
(“[W]here findings are infirm because of an erroneous view of
the law, a remand is the proper course unless the record per-
mits only one resolution of the factual issue.”).
We remind the court only exclusions of that evidence
which violates Rule 403 should be made, and prejudice
should be unfair to justify exclusion. See United States v. Buck-
ner, 91 F.3d 34, 36 (7th Cir. 1996) (clarifying exclusion of evi-
dence must be based on unfair prejudice, not mere prejudice);
see generally Fed. R. Evid. 403 advisory committee’s notes (de-
fining unfair prejudice as having “an undue tendency to
11 The Government argues we should rule all its evidence admissible due
to the court’s legal errors. But, such a remedy ignores any rulings within
the court’s discretion—for example, the court was well within its discre-
tion to exclude Hamzeh’s racist comments about African Americans and
the fact he expected to be considered a terrorist if caught—and fails to al-
low the court the opportunity to correct legal errors affecting its Rule 403
analysis.
14 No. 19-3072
suggest decision on an improper basis, commonly, though
not necessarily, an emotional one”). The district court should
reweigh the evidence with the correct evidentiary standards,
and with recognition the evidence is relevant and probative
of whether Hamzeh was entrapped. See Gomez, 763 F.3d at 857
(noting an important issue in Rule 403 analysis is “the extent
to which the non-propensity factual proposition actually is
contested in the case”). When evidence is relevant and other-
wise admissible, exclusions should be narrowly tailored to
only the phrases or statements violative of Rule 403. We leave
the Rule 403 determination, consistent with this opinion, in
the district court’s sound discretion. See Rogers, 587 F.3d at 823(“Rule 403 balancing depends on the context and individual
circumstances of each case, and we prefer not to ‘cabin artifi-
cially the discretion of the district courts.’”(quoting United
States v. Hawpetoss, 478 F.3d 820, 825 (7th Cir. 2007))).
iii. Recorded Statements to Police
The Government also asks this Court to review an order
entered October 21, 2019, regarding Hamzeh’s post-arrest
statements. Most of the order deals with admission of Ham-
zeh’s evidence based on the rule of completeness, not exclu-
sion of the Government’s evidence. To the extent the Govern-
ment seeks review of the admission of Hamzeh’s evidence,
this Court is without jurisdiction to review those rulings. See
18 U.S.C. § 3731 (allowing appeal by the Government “from a
decision or order of a district court suppressing or excluding
evidence”). We confine our review to the two decisions within
that order excluding the Government’s evidence.
First, the court excluded the Government’s proposed ex-
cerpt about Hamzeh’s passports and history of traveling
abroad. It did so based on prior exclusions in the order dated
No. 19-3072 15
October 16, 2019, which found inadmissible similar conversa-
tions about traveling abroad to commit an attack. In so doing,
it stated its prior rulings made the post-arrest statement “no
longer relevant.” Second, the court excluded statements Ham-
zeh made to a federal agent after his arrest about his conver-
sations with a Muslim religious leader about whether to at-
tack the Masonic center. Law enforcement asked Hamzeh
whether he would have committed the attack had the reli-
gious leader said it was okay. The court found the exchange
too speculative and “irrelevant” to the entrapment defense
and the offense with which he is charged.
These rulings fall victim to the same evidentiary errors as
the rulings regarding recorded conversations with the in-
formants (found in the order entered October 16, 2019). The
evidence is not offered to prove Hamzeh actually would carry
out the attacks abroad or domestically. Instead, it was offered
to show Hamzeh’s predisposition to obtain the firearms. The
evidence is relevant to predisposition and should be re-
weighed under Rule 403.
B. Machinegun Evidence
Next, the Government argues the court erred in excluding
its evidence about the availability, cost, and ease of obtaining
devices that convert semi-automatic weapons into automatic
weapons. The Government seeks to introduce this evidence in
response to Hamzeh’s evidence that machineguns are rare
and expensive.
Citing United States v. Hollingsworth, the court found Ham-
zeh’s evidence about the expense and rarity of machineguns
admissible on the issue of his “positional predisposition.” 27
F.3d 1196 (7th Cir. 1994). We do not opine on the propriety of
16 No. 19-3072
admission of this evidence under Hollingsworth. See 18 U.S.C.
§ 3731. Instead, we only consider whether admission of this
evidence makes the Government’s evidence relevant, since
the court, in essence, found the evidence not relevant to the
crime charged. 12
When relevance depends on a fact, also known as “condi-
tional relevance,” “proof must be introduced sufficient to sup-
port a finding that the fact does exist.” Fed. R. Evid. 104(b); see
generally Fed. R. Evid. 401 advisory committee’s notes (refer-
encing conditional relevance); see, e.g., United States v. Collins,
966 F.2d 1214, 1223 (7th Cir. 1992) (applying conditional rele-
vance in the context of conspiracy). This case presents a less
common application of the rule, in that the relevance of the
Government’s machinegun evidence depends on Hamzeh’s
introduction of facts (that machineguns are rare and expen-
sive), not the Government’s introduction of its own facts.
If Hamzeh’s evidence is introduced at trial, he puts at is-
sue his ability to commit the offense, making evidence that
bears on ability relevant. The Government’s evidence that the
acquisition of parts to assemble machineguns and assembly
itself is easy makes a fact of consequence—ability (as raised
by Hamzeh)—more likely. Stated otherwise, Hamzeh’s evi-
dence creates a fact in issue, laying the foundation for admis-
sion of the Government’s evidence. The Government’s evi-
dence is conditionally relevant; once Hamzeh’s evidence is
12 Hamzeh argues this Court cannot consider the issue because the Gov-
ernment did not make an offer of proof. This argument lacks merit. The
district court’s order dated October 15, 2019, repeats the Government’s
proffer that Special Agent Lindeman would testify about the availability
of various conversion devices and the ease of converting a semi-automatic
firearm into a machinegun.
No. 19-3072 17
admitted, the Government may admit its evidence in rebuttal.
Thus, the district court erred.
III. Conclusion
While we commend the court’s thoroughness in its pre-
trial orders, it must correct the repeated errors in excluding
evidence as “not probative” or irrelevant, which affected its
further findings under Rule 403. It also erred in excluding the
Government’s machinegun-availability evidence as irrelevant
to the charged conduct. Thus, we REVERSE and REMAND
for further proceedings consistent with this opinion and in-
struct the district court to find the Government’s ma-
chinegun-availability evidence conditionally admissible, sub-
ject to Hamzeh’s introduction of evidence he did not have the
ability to commit the crime.