United States v. Buchmeier, Shane

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2410
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHANE BUCHMEIER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 82--Joan B. Gottschall, Judge.
Argued January 18, 2001--Decided June 26, 2001
Before Cudahy, Kanne, and Rovner, Circuit
Judges.
Kanne, Circuit Judge. A jury found Shane
Buchmeier guilty of two counts of being a
felon in possession of a firearm in
violation of 18 U.S.C. sec. 922(g)(1),
and two counts of receiving stolen
firearms in violation of 18 U.S.C. sec.
922(j). Because of his multiple prior
violent felony convictions, Buchmeier was
sentenced as an armed career
criminalpursuant to section 4B1.4 of the
United States Sentencing Guidelines,
which resulted in his receiving a prison
term of 188 months. He now appeals,
arguing that his conviction is invalid
because the district court abused its
discretion by: (1) denying his motion to
dismiss all counts of the indictment
against him because they were
duplicitous; (2) refusing to submit a
special interrogatory to the jury for
each firearm listed in the indictment;
(3) refusing to submit his theory of
defense instruction to the jury; and (4)
denying his motion for a judgment of
acquittal. Upon review of the district
court’s rulings, we agree with the court
with regard to all but one of these
rulings; we find that Counts I and III of
the indictment are duplicitous. However,
as we explain, the error resulting from
the government’s formulation of these
counts was harmless. Therefore, we affirm
Buchmeier’s conviction.
I. History
Arthur Haverstock, a resident of Crown
Point, Indiana, took a two-week vacation
to the Bahamas, leaving his nineteen-
year-old nephew, Justin Gorball, to watch
over his house. In his residence,
Haverstock maintained an extensive
firearms collection. Some of these
weapons were located in a gun cabinet in
Haverstock’s bedroom and others were
stored in a gun safe anchored to the
floor of a closet. During this two-week
period, Gorball invited a recently-made
acquaintance, Neil Schroeder, to his
uncle’s house, and allowed him to sleep
there on several occasions. Problems
arose, however, when Schroeder began to
"visit" Haverstock’s house when Gorball
was not there and without Gorball’s
permission. Schroeder brought his friend
John Weis with him on several of these
visits. He showed Weis the different
items in the Haverstock home, including
Haverstock’s firearms collection. On
August 5, Schroeder took Weis with him to
Steger, Illinois, to Rocco DeMarco’s
house, where they met DeMarco, Mark
Flamini Rossi, Brian Engel, and
Buchmeier. During this visit, Schroeder
announced to the group of men that he
could obtain firearms. Buchmeier
expressed interest, telling Schroeder to
"bring them." After this discussion,
Schroeder left DeMarco’s house with Weis
and Rossi and drove to the home of Tommy
Joyce. Schroeder obtained a firearm from
Joyce’s house and returned to DeMarco’s
house. The group of men then drove to
Buchmeier’s home. At Buchmeier’s house,
Weis, DeMarco, and Rossi watched
Schroeder give Buchmeier the firearm he
had obtained from Joyce’s house, and
DeMarco saw Buchmeier place the firearm
in his van. Weis, DeMarco, and Rossi also
heard Schroder tell Buchmeier that he
could obtain additional firearms.
Buchmeier again expressed his interest to
Schroeder, indicating that if Schroeder
obtained additional firearms he would
take a look at them.
That same day, Schroeder took Weis and
Rossi with him to Haverstock’s house.
Schroeder obtained two handguns from
Haverstock’s gun safe, which Rossi
recognized as a .357 revolver and a .44
magnum revolver. The three men then
joined DeMarco, Engel, and Buchmeier at
Buchmeier’s house, where Schroeder and
Rossi each handed Buchmeier one of the
firearms taken from the Haverstock home.
Buchmeier discharged one of the guns into
the woods near his house. He then put one
of the weapons into his van. Engel heard
Buchmeier explain that he was going to
purchase the firearms. After giving
Buchmeier these two handguns, Schroeder
indicated to Buchmeier that he could also
obtain shotguns and rifles. Buchmeier
again expressed an interest in
Schroeder’s offer. Schroeder and Weis
then left Buchmeier’s house. After
Schroeder and Weis had left, Engel and
DeMarco heard Buchmeier state that he
would "get rid" of the guns he had
obtained from Schroeder through an
individual by the name of Richie in Park
Forest, Illinois.
The next day, on August 6, Schroeder and
Weis returned to the Haverstock home.
Weis observed Schroeder remove
approximately eight rifles from
Haverstock’s gun cabinet and put them
into a duffle bag. Schroder also took a
quantity of fishing supplies, which he
loaded into a plastic crate. Schroeder
and Weis then went to Buchmeier’s house
with these items. Schroeder displayed the
contents of the duffle bag to Buchmeier.
DeMarco saw Buchmeier place the duffle
bag and fishing supplies into his van.
The four men then drove to DeMarco’s
house. Buchmeier, DeMarco, and Schroeder
went inside. Schroeder later emerged from
the house carrying a pack of marijuana, a
pager, and $150, all of which he showed
to Weis.
In relation to these transactions,
Buchmeier told DeMarco that he had
"pretty much ripped off" Schroeder.
Buchmeier also explained that he would
trade or sell the firearms. Approximately
one week later, DeMarco watched Buchmeier
saw off the barrel of a shotgun.
Buchmeier told DeMarco that he would keep
this firearm in his van for protection.
Buchmeier also told Engel that the
shotgun was one of the guns he had
purchased from Schroeder.
Haverstock returned home from his
vacation to find that a number of items
had been stolen, including the firearms
from the gun cabinet in his bedroom. He
contacted the police regarding the
burglary. Haverstock was also unable to
find the key to his gun safe. After
obtaining a new key, approximately two
weeks later, Haverstock opened his gun
safe and found that two handguns had been
removed. Haverstock made an inventory for
the police of all of the stolen items.
Special Agent Jeff Emmons, of the Bureau
of Alcohol, Tobacco and Firearms (the
"ATF"), investigated the Haverstock
burglary. During this investigation,
Agent Emmons obtained the cooperation of
Schroeder and recorded a telephone
conversation between Buchmeier and
Schroeder regarding the stolen firearms.
Some time after recording this
conversation, Agent Emmons interviewed
Buchmeier. Buchmeier admitted that he had
purchased fishing equipment from
Schroeder, and that he had seen firearms
in the trunk of Schroeder’s car, but he
denied ever being interested in
purchasing firearms from Schroeder, much
less having actually purchased any
firearms from him. Buchmeier subsequently
acknowledged, however, that he handled
one of the firearms. He also acknowledged
that his voice was the voice on the
recorded phone conversation discussing
the stolen firearms with Schroeder.
Buchmeier explained to Agent Emmons that
the firearms had merely passed through
his hands. He then asked Agent Emmons why
he was interested in him since he was
"small time" and had not sold any of the
firearms to gang members.
A grand jury returned a six count
indictment against Buchmeier and
Schroeder. Counts I and IV charged
Buchmeier with two instances of being a
felon in possession of a firearm in
violation of 18 U.S.C. sec. 922(g)(1).
Counts III and VI charged Buchmeier with
two separate incidents of receiving
stolen firearms in violation of 18 U.S.C.
sec. 922(j). The remaining two counts of
the indictment charged Schroeder with two
instances of selling stolen firearms in
violation of sec. 922(j). Buchmeier filed
a motion to dismiss the four counts of
the indictment against him, arguing that
the counts were impermissibly
duplicitous. The district court denied
this motion. Buchmeier was tried by jury
and found guilty of all four counts.
II. Analysis
A. Buchmeier’s Motion for Judgment of
Acquittal
We will first review Buchmeier’s claim
that the district court improperly denied
his motion for judgment of acquittal
because if he is correct, we need not
address his other claims. Buchmeier
argues that the district court erred in
denying his motion because the evidence
presented at his trial was insufficient
to support his conviction. The government
contends that the district court properly
denied his motion.
We note that there is a question of
whether Buchmeier made his motion for a
judgment of acquittal in a timely manner.
In a case where a defendant has been
convicted by a jury, Rule 29(c) of the
Federal Rules of Criminal Procedure
explains that "a motion for judgment of
acquittal may be made or renewed within 7
days after the jury is discharged or
within such further time as the court may
fix during the 7-day period." Fed. R. Crim.
P. 29(c). The jury’s guilty verdict was
returned on January 15, 1998; however,
Buchmeier did not file his motion for a
judgment of acquittal until February 2,
1998. We have previously found that a
defendant’s failure to properly file such
a motion results in the waiver of "any
challenge on appeal to the sufficiency of
the evidence absent a manifest
miscarriage of justice." United States v.
Baker, 40 F.3d 154, 160 (7th Cir. 1994).
The government has not argued that
Buchmeier waived this argument on appeal,
however, instead choosing to argue that
there was sufficient evidence presented
at Buchmeier’s trial to support his
conviction. Thus, the government has
waived Buchmeier’s waiver. See id. at 160
(citing United States v. Moya-Gomez, 860
F.2d 706, 745-46 n.33 (7th Cir. 1988)).
At the conclusion of Buchmeier’s trial,
the district court instructed the jury
that it could find Buchmeier guilty of
any of the four counts charged in the
indictment if it unanimously agreed that
he possessed at least one of the firearms
listed in that charge and if it also
agreed as to which particular firearm he
possessed. This "general verdict of
guilty" for those counts listing multiple
firearms "may be upheld only if there is
sufficient evidence to support the charge
as to each of the acts alleged." United
States v. Berardi, 675 F.2d 894, 902 (7th
Cir. 1982). We have explained that "[t]he
reason for this rule is that, with the
’one-is-enough’ instruction that was
given here, it would be impossible to
determine whether the jury based its
decision on an act for which there w[as]
insufficient evidence." Id. In evaluating
Buchmeier’s claim that the evidence was
insufficient to support his conviction we
will "consider the evidence in the light
most favorable to the government, drawing
all reasonable inferences in its favor."
United States v. Fraizer, 213 F.3d 409,
416 (7th Cir. 2000). Additionally, we
will find for Buchmeier "only if there is
no evidence from which the trier of fact
could have found the essential elements
of the crime beyond a reasonable doubt."
United States v. Polin, 194 F.3d 863, 866
(7th Cir. 1999).
The main thrust of Buchmeier’s challenge
is an attack on the testimony of various
witnesses called by the government during
his trial. He first argues that
Haverstock’s testimony as to what
firearms were stolen from his house is
not credible. He likewise contends that
DeMarcco, Rossi, and Weiss testified
inconsistently as to whether they
actually saw him in possession of any of
the firearms listed in the indictment.
Buchmeier asserts that these alleged
weaknesses in the government’s evidence
indicate that there is reasonable doubt
as to his culpability for the crimes for
which he was convicted.
We have repeatedly explained with regard
to claims like Buchmeier’s that
"[b]ecause questions of credibility are
solely for the trier of fact, such
arguments are ’wasted on an appellate court.’"
United States v. Hatchett, 31 F.3d 1411,
1416 (7th Cir. 1994) (quoting United
States v. Marin, 7 F.3d 679, 688 (7th
Cir. 1993)) (citation omitted). "[I]t is
not our role, when reviewing the
sufficiency of the evidence, to second-
guess a jury’s credibility
determinations." United States v. McGee,
189 F.3d 626, 630 (7th Cir. 1999).
Therefore, "’absent extraordinary
circumstances,’ this court will not
reevaluate the testimony of a witness to
determine his or her motives or other
possible measures of reliability." United
States v. Dunigan, 884 F.2d 1010, 1013
(7th Cir. 1989) (citation omitted).
There are no circumstances present in
this case which require us to reevaluate
the reliability of the witness testimony
presented by the government at
Buchmeier’s trial. The testimony at trial
repeatedly confirmed Buchmeier’s
acquisition and possession of each of the
firearms listed in the indictment.
Although Buchmeier is correct in noting
that at the time of his trial in January
1998 Haverstock was no longer able to
recall the makes, models, and serial
numbers of the missing firearms, the
record demonstrates that Haverstock knew
which firearms were missing from his
house when he made the inventory of the
missing guns for the police in August of
1994. Haverstock noted that four of the
missing weapons were handguns, and the
rest were rifles and shotguns. Haverstock
used a photograph of his rifles and
shotguns to substantiate the loss of
these firearms. He also referred to the
boxes that several of the firearms had
been in when he originally purchased
them. Witness testimony describing the
firearms Schroeder removed from
Haverstock’s house matched Haverstock’s
written description of the firearms that
were stolen from his house. Additionally,
multiple witnesses placed the firearms
taken by Schroeder in Buchmeier’s
possession. Further testimony also
indicated that Buchmeier knew these
firearms were stolen and that he sold or
intended to sell the majority of these
stolen firearms. We find, therefore, that
the evidence presented against Buchmeier
was sufficient to support a guilty jury
verdict for any of the firearms listed in
the indictment.
B. Buchmeier’s Motion to Dismiss the
Indictment on Duplicity Grounds
Prior to the commencement of his trial,
Buchmeier moved to have Counts I, III,
IV, and VI of the indictment dismissed,
arguing that they were impermissibly
duplicitous. The district court denied
the motion, finding that "the
government’s decision to charge Buchmeier
in four counts rather than in twenty
counts was reasonable and not
prejudicially duplicitous." United States
v. Buchmeier, No. 97 CR 82-01, 1997 WL
695678, at *2 (N.D. Ill. Nov. 4, 1997).
Buchmeier now appeals the district
court’s decision.
"’Duplicity’ is the joining of two or
more offenses in a single count." United
States v. Marshall, 75 F.3d 1097, 1111
(7th Cir. 1996). We have explained that
"the prohibition of duplicitous counts is
embodied in Rule 8(a) of the Federal
Rules of Criminal Procedure, which
provides for ’a separate count for each offense.’"
United States v. Berardi, 675 F.2d 894,
897 n.5 (7th Cir. 1982). However, an
indictment charging multiple acts in the
same count, each of which could be
charged as a separate offense, may not be
duplicitous where these acts comprise a
continuing course of conduct that
constitutes a single offense. See id. at
898.
Buchmeier contends that sec. 922(g)(1)
and sec. 922(j) both contemplate a
violation to include the possession of a
single firearm. Because the counts
against him included multiple firearms,
Buchmeier asserts that they each
encompass more than one offense and are
therefore impermissibly duplicitous.
In order to address Buchmeier’s argument
we must determine Congress’ intended unit
of prosecution for these subsections.
Section 922(g)(1) prohibits a convicted
felon from "possess[ing] . . . any
firearm" that has traveled in interstate
commerce. Likewise, sec. 922(j) makes it
"unlawful for any person to receive . . .
any stolen firearm" that has traveled in
interstate commerce. Although the use of
the word "any" in these subsections
creates "[u]ncertainty as to the unit of
prosecution intended by Congress," United
States v. Cunningham, 145 F.3d 1385, 1398
(D.C. Cir. 1998), this court has found
guidance for interpreting such statutes
in the Supreme Court’s decision in Bell
v. United States, 349 U.S. 81, 75 S. Ct.
620, 99 L. Ed. 905 (1955). See McFarland
v. Pickett, 469 F.2d 1277 (7th Cir.
1972); United States v. Oliver, 683 F.2d
224 (7th Cir. 1982). In Bell, the Supreme
Court reviewed a provision of the Mann
Act, 18 U.S.C. sec. 2421, which explained
that "’[w]hoever knowingly transports in
interstate or foreign commerce . . . any
woman or girl for the purpose of
prostitution or debauchery, or for any
other immoral purpose. . . . Shall be
fined not more than $5,000 or imprisoned
not more than five years, or both.’" 349
U.S. at 82 (quoting 18 U.S.C. sec. 2421).
The Court addressed the question of
whether an individual who admitted to
transporting two women in the same car on
the same trip for purposes prohibited by
sec. 2421 had committed one or two
violations of that section. See id. at
82-83. Finding there to be no clear
congressional expression of a desired
unit of prosecution, the Court found that
the defendant should only have been
charged with one violation. See id. at
83. The Court explained that when
"Congress does not fix the punishment for
a federal offense clearly and without
ambiguity, doubt will be resolved against
turning a single transaction into
multiple offenses." Id. at 84.
Relying on the Court’s reasoning in
Bell, this court evaluated the language
of sec. 922(j) in McFarland v. Pickett,
469 F.2d 1277 (7th Cir. 1972)./1 The
question in McFarland was whether a
defendant who was found with two stolen
firearms could be charged with a separate
count for each firearm in his possession.
See 469 F.2d at 1278. Unable to discern
any clear congressional intent as to the
desired unit of prosecution from the
language "any stolen firearm or stolen
ammunition," this court concluded that
the government could not charge McFarland
with separate counts of concealing and
storing stolen firearms in violation of
sec. 922(j) for each of the firearms
found in his possession when "there [wa]s
no evidence to show whether the two
firearms were stored at the same or
different locations or whether they were
acquired at the same or different times."
469 F.2d at 1279.
Subsequent to McFarland, in United
States v. Oliver, 683 F.2d 224 (7th Cir.
1982), this court reviewed the
predecessor to the current version of
sec. 922(g)(1), at that time 18 U.S.C.
sec. 922(h),/2 and again found
Congress’ intended unit of prosecution to
be unclear. 683 F.2d at 232-33.
Therefore, we relied on Bell and
McFarland to conclude that a convicted
felon found to be in possession of both a
firearm and ammunition could only be
charged with one violation of sec. 922(h)
if the government "could not show that
the ammunition and revolver were acquired
at different times." Id. at 232; see also
United States v. Calhoun, 510 F.2d 861,
869 (7th Cir. 1975) (finding that under
18 U.S.C. sec. 1202(a), "absent a showing
that two firearms were stored or acquired
at different times or places, there is
only one offense, not two").
These decisions indicate that this
court, like every other circuit court,
has been unable to clearly determine Con
gress’ intended unit of prosecution for
these subsections. We have thus
determined that when a defendant’s
possession of multiple firearms is
simultaneous and undifferentiated, the
government may only charge that defendant
with one violation of sec. 922(g)(1) and
sec. 922(j), regardless of the actual
quantity of firearms involved. See
McFarland, 469 F.2d at 1278; Oliver, 683
F.2d at 232-33; see also United States v.
Verrecchia, 196 F.3d 294, 298 (1st Cir.
1999) ("[T]he simultaneous possession by
a felon of multiple firearms, that is,
possession of multiple firearms in one
place at one time, is only one violation
of sec. 922(g)(1)."); accord United
States v. Pelusio, 725 F.2d 161, 168-69
(2d Cir. 1983) (construing sec.
922(g)(1)’s predecessor sec. 922(h));
United States v. Frankenberry, 696 F.2d
239, 244-45 (3d Cir. 1982) (construing
sec. 922(h)); United States v. Dunford,
148 F.3d 385, 390 (4th Cir. 1998); United
States v. Hodges, 628 F.2d 350, 352 (5th
Cir. 1980) (construing sec. 922(h) and
sec. 18 U.S.C. 1202(a)); United States v.
Adams, 214 F.3d 724, 728 (6th Cir. 2000);
United States v. Kinsley, 518 F.2d 665,
668-70 (8th Cir. 1975) (construing sec.
18 U.S.C. 1202(a)(1)); United States v.
Szalkiewicz, 944 F.2d 653, 654 (9th Cir.
1991); United States v. Valentine, 706
F.2d 282, 292-94 (10th Cir. 1983)
(construing sec. 922(h)); United States
v. Bonavia, 927 F.2d 565, 568-69 (11th
Cir. 1991); United States v. Cunningham,
145 F.3d 1385, 1398 (D.C. Cir. 1998).
Thus, under sec. 922(g)(1), a convicted
felon is seemingly punished for each
transaction or acquisition by which
heattempts to arm himself unlawfully.
Likewise, under sec. 922(j), an
individual is punished for each separate
transaction involving stolen firearms.
Therefore, these decisions also suggest
that the government may charge an
individual with multiple violations of
either sec. 922(g)(1) or sec. 922(j)
where it can produce evidence
demonstrating that the firearms were
stored or acquired separately and at
different times or places. See McFarland,
469 F.2d at 1279; Oliver, 683 F.2d at
232-33; see also United States v. Keen,
96 F.3d 425, 431 n.11 (9th Cir. 1996)
("Guns that are acquired at different
times or stored in separate places permit
separate punishment to be imposed for
each violation of sec. 922(g).");
Cunningham, 145 F.3d at 1398 ("When a
felon possesses multiple weapons, only
one offense is committed unless the
weapons are stored or acquired at
different times or places."). But see
United States v. Valentine, 706 F.2d 282,
294 (10th Cir. 1983) (reserving the issue
of whether "sec. 922(h) . . . should be
construed to support multiple convictions
because separate times of receipt and
possession are shown").
Turning to the facts of this case, we
find that the government properly limited
the charges it filed against Buchmeier
for the firearms he acquired from
Schroeder on August 6, 1994. The
government charged Buchmeier with having
committed one violation of sec. 922(g)(1)
(Count IV) and one violation of sec.
922(j) (Count VI) on August 6, listing
all seven firearms involved in this
transaction in these two counts. Because
these firearms were simultaneously
acquired and received by Buchmeier, any
attempt to charge him with more than one
violation of either sec. 922(g)(1) or
sec. 922(j) for these seven firearms
would have been multiplicitous.
The closer question, however, is whether
the government’s decision to charge
Buchmeier with one count of violating
sec. 922(g)(1) (Count I) and one count of
violating sec. 922(j) (Count III) for the
stolen firearms he acquired from
Schroeder through the two transactions on
August 5 resulted in these counts being
duplicitous. Throughout this case the
government has repeatedly described the
interactions between Schroeder and
Buchmeier as three separate acquisitions
of stolen firearms in which Buchmeier, a
convicted felon, attempted to arm himself
unlawfully. The evidence supports this
characterization. Thus, we find that the
government could have charged Buchmeier
with three separate counts of both sec.
922(g)(1) and sec. 922(j). Of course,
just because we find that the facts of
this case permitted the government to
charge Buchmeier with three sets of
counts, one for each transaction, does
not mean that it was required to do so.
See United States v. Hammen, 977 F.2d
379, 383 (7th Cir. 1992) (explaining that
although each count of conviction for
committing bank fraud in violation of 18
U.S.C. sec. 1344 requires the execution
of some act in furtherance of a scheme,
"the law does not require the converse:
each execution need not give rise to a
charge in the indictment"). However, once
the government chose to charge Buchmeier
with acquiring and receiving all ten
firearms, we find that it was required to
either charge him with one violation of
sec. 922(g)(1) and sec. 922(j), by way of
a continuing course of conduct, or with
three separate violations of sec.
922(g)(1) and sec. 922(j), in order to
avoid formulating either a duplicitous or
multiplicitous indictment. Therefore, we
do not think the government’s decision to
combine the two August 5 transactions
into the same two counts of the
indictment was proper.
The government has argued that the
indictment is not duplicitous because the
multiple acts charged in each count were
part of a continuing course of conduct.
In support of this argument the
government asserts that the three
transactions taken together could be seen
as a continuing course of conduct because
the same persons were involved in the
same action over the course of a
relatively short period of time. As
alluded to above and as we further
explain below, we agree that Buchmeier
could have been charged with one
continuing violation. However, the
government’s reliance on this argument is
misplaced in light of the manner in which
it chose to charge Buchmeier.
In United States v. Berardi, 675 F.2d
894 (7th Cir. 1982), the defendant was
charged with multiple counts, including
one count of obstruction of justice in
violation of 18 U.S.C. sec. 1503. 675
F.2d at 897. Although sec. 1503 only
requires one discrete act for a
violation,/3 this count "described three
epi-sodes in which Berardi was alleged to
have furthered this endeavor." Id. While
this court acknowledged that each episode
listed in the count could have
constituted a separate violation and
therefore a separate count in the
indictment, we observed that "[t]he three
alleged acts of obstruction occurred
within a relatively short period of time,
werecommitted by one defendant, involved
a single witness, and were in furtherance
of [the] solitary object of influencing
[a witness] not to reveal [information]
to the grand jury." Id. at 898. Thus,
finding that "the indictment, fairly
interpreted, charge[d] Berardi with a
continuing course of conduct, during a
discrete period of time, to influence"
one witness’s grand jury testimony, we
concluded that these acts constituted one
violation of sec. 1503, and therefore,
the count was not prejudicially
duplicitous. Id. at 898, 899.
Unlike the indictment in Berardi, the
indictment in this case did not charge
Buchmeier with one continuing course of
conduct. Instead, the government chose to
divide the three transactions and the
firearms involved in each of these
transactions based on the day that each
of the transactions took place; one count
included the two transactions on August
5, 1994, and another count dealt with the
one transaction that took place on August
6, 1994. Thus, we are left wondering why
the government broke up this alleged
course of conduct into two separate
counts if it truly wished to rely on our
analysis in cases like Berardi.
Ironically, the facts of this case
provide substantial support for the
government’s argument that the three
interactions between Buchmeier and
Schroeder could reasonably be
characterized as a continuing course of
conduct. The three meetings took place
over a very short period of time, less
than forty-eight hours, they involved the
same activity between the same two
parties, and there was only one instance
of payment, which took place after the
third and final interaction. However, the
government’s decision to charge Buchmeier
with multiple counts of each violation
renders it unable to successfully assert
this argument in defense of the
indictment. Therefore, we set aside the
government’s proffered argument.
Having concluded that Counts I and III
are duplicitous, we must now determine if
this error affected the fairness of
Buchmeier’s trial. See United States v.
Tanner, 471 F.2d 128, 139 (7th Cir. 1972)
("The duplicity of Count III would not
require a dismissal if it were shown to
constitute ’harmless error’ under Rule
52(a)."); see also United States v.
Kimberlin, 781 F.2d 1247, 1250 (7th Cir.
1985). "’The overall vice of duplicity is
that the jury cannot in a general verdict
render its finding on each offense,
making it difficult to determine whether
a conviction rests on only one of the
offenses or both.’" United States v.
Marshall, 75 F.3d 1097, 1111 (7th Cir.
1996) (quoting United States v.
Blandford, 33 F.3d 685, 699 n.17 (6th
Cir. 1994)). Additionally, we have
explained that a duplicitous indictment
may expose a defendant to other adverse
effects including "improper notice of the
charges against him, prejudice in the
shaping of evidentiary rulings, in
sentencing, in limiting review on appeal,
in exposure to double jeopardy, and of
course the danger that a conviction will
result from less than a unanimous verdict
as to each separate offense." Id.; see
also Kimberlin, 781 F.2d at 1250;
Berardi, 675 F.2d at 899.
In United States v. Marshall, 75 F.3d
1097 (7th Cir. 1996), we upheld an
indictment containing a count that
included "arguably separate and distinct"
offenses. Id. at 1112. Our conclusion
that the indictment was not fatally
flawed rested in large part on the fact
that the district court had avoided
prejudicing the defendant by instructing
the jury that it was required to
unanimously agree as to which of the
offenses included in the disputed count
the defendant had committed. See id.; see
also United States v. Cherif, 943 F.2d
692, 701 (7th Cir. 1991) (explaining that
the possibility that the defendant was
convicted by a less than unanimous jury--
where a count of the indictment listed
two unlawful acts in the same count--
could have been eliminated by an
instruction requiring the jury to
unanimously agree as to which act the
defendant was guilty of committing);
accord United States v. Nattier, 127 F.3d
655, 657 (8th Cir. 1997) ("The risk
inherent in a duplicitous count . . . may
be cured by a limiting instruction
requiring the jury to unanimously find
the defendant guilty of at least one
distinct act."); United States v.
Trammell, 133 F.3d 1343, 1354-55 (10th
Cir. 1998) ("’One cure for an otherwise
duplicitous indictment is to give an
augmented instruction requiring unanimity
on one or the other of the acts charged
within a count that otherwise appear to
constitute separate offenses.’")
(citation omitted). Referring to all four
counts against Buchmeier, the district
court explained to the jury that:
[i]n order to return a verdict of guilty
on any one count, you must find that the
defendant possessed at least one of the
firearms listed in that count, and you
must unanimously agree as to which
particular firearm or firearms listed in
that count the defendant possessed. If
you cannot agree in that manner, you must
find the defendant not guilty of that
count.
Because the jury received this specific
instruction, Buchmeier can be assured
that the decision to convict him on
Counts I and III was the result of a
unanimous verdict. Additionally, the
other adverse effects that can result
from a duplicitous indictment have not
occurred in this case: the specificity of
the counts properly notified Buchmeier of
the charges against him; he was not
subjected to any prejudicial evidentiary
rulings during the course of his trial;
the review he has sought on appeal has
not been limited by the duplicitous
counts; he was not prejudiced in
sentencing as his sentence of 188 months
was the low end of the applicable range
of sentences given his status as an armed
career criminal; and he faces no risk of
double jeopardy because the government
has conceded that he cannot again be
charged for any of the firearms listed in
the indictment. Because Buchmeier was not
prejudiced by the duplicitous counts of
the indictment and none of the concerns
that can arise with a duplicitous
indictment have been implicated in this
case, we find that the government’s
improper formulation of the indictment
was harmless error. Therefore, we will
affirm Buchmeier’s conviction on these
counts.
C. Buchmeier’s Theory of Defense Jury
Instruction
Buchmeier also challenges the district
court’s refusal to submit his theory of
defense instruction to the jury. At the
end of Buchmeier’s trial his counsel
proposed the following theory of defense
instruction:
The defendant’s mere association with
those who may have possessed firearms is
insufficient to show possession or
constructive possession.
The defendant’s possession or
constructive possession is not
established by the defendant having
played the role of a finder or broker, or
by the defendant having brought a buyer
and seller together.
The government objected to this proposed
instruction, arguing that neither the
constructive possession language nor the
mere association language were
appropriate based on the evidence in the
case. The district court refused to
submit the proposed instruction to the
jury, over Buchmeier’s objections,
finding that there was an insufficient
evidentiary record to support such an
instruction.
Because Buchmeier properly objected at
trial to the district court’s ruling, we
review the district court’s decision not
to instruct the jury on his theory of
defense de novo. See United States v.
Irorere, 228 F.3d 816, 825 (7th Cir.
2000). With regard to a defendant’s right
to have his or her theory of defense
instruction submitted to the jury, this
Court has explained that
a defendant is entitled to a jury
instruction as to his or her particular
theory of defense provided: "(1) the
instruction represents an accurate
statement of the law; (2) the instruction
reflects a theory that is supported by
the evidence; (3) the instruction
reflects a theory which is not already
part of the charge; and (4) the failure
to include the instruction would deny the
appellant a fair trial."
United States v. Swanquist, 161 F.3d
1064, 1075 (7th Cir. 1998) (quoting
United States v. Edwards, 36 F.3d 639,
645 (7th Cir. 1994)). Buchmeier now
contends that his theory of defense
instruction met these requirements, and
therefore, the district court erroneously
denied his proposed instruction. He
further argues that the court’s error
denied him a fair trial because his
counsel had specifically relied on this
theory of defense in his opening
statement and throughout the entire trial
only to have it precluded prior to the
jury deliberating. The government
concedes that the instruction Buchmeier
presented to the court was an accurate
statement of the law. It contends,
however, that the district court properly
concluded that there was no factual
support in the record to justify the
instruction. The government argues that
the evidence at trial showed that
Buchmeier’s interaction with Schroeder
was much more than a "mere association
with those who may have possessed
firearms." Additionally, the government
asserts that there is no evidence in the
record that Buchmeier "played the role of
a finder and broker of firearms," or that
he "brought a buyer and seller together."
While a defendant’s theory of defense
need only have "some foundation in the
evidence, however tenuous," Irorere, 228
F.3d at 825 (citations omitted), we find
that the district court correctly
concluded that there was no evidence
presented at Buchmeier’s trial that
supported his proposed theory of defense
instruction. At oral argument,
Buchmeier’s counsel explained that there
was only a "scintilla of evidence" in the
record supporting the notion that
Buchmeier "played the role of a finder or
broker" of firearms. Although our review
of the record indicates that even this
description is a generous
characterization of the evidence, we
agree with the Ninth Circuit that "’[a]
’mere scintilla’ of evidence supporting a
defendant’s theory . . . is not
sufficient to warrant a defense instruction.’"
United States v. Wofford, 122 F.3d 787,
789 (9th Cir. 1997) (quoting United
States v. Morton, 999 F.2d 435, 437 (9th
Cir. 1993)). There is likewise no
evidence in the record to support the
idea that Buchmeier’s interaction with
Schroeder and the other individuals
mentioned above was a "mere association
with those who may have possessed
firearms." Thus, the district court
properly refused to submit Buchmeier’s
proposed theory of defense instruction to
the jury.
D. Buchmeier’s Request for Special
Interrogatories
Buchmeier’s final argument on appeal
contests the district court’s denial of
his request that special interrogatory
verdicts be submitted to the jury for
each firearm listed in the indictment. He
claims that these special interrogatory
verdicts were needed because each firearm
charged is a separate element of a
separate crime. Thus, Buchmeier argues
that the jury should have been required
to find him guilty beyond a reasonable
doubt for each firearm. Additionally,
Buchmeier asserts that because the
special interrogatory verdicts were not
submitted to the jury, he is unable to
determine which firearm he was convicted
of possessing and receiving. This result,
he contends, is so manifestly unfair that
it violates the Constitution’s notions of
due process and fundamental fairness. We
do not agree.
The Supreme Court has explained that "a
jury in a federal criminal case cannot
convict unless it unanimously finds that
the Government has proven each element"
of a crime. Richardson v. United States,
526 U.S. 813, 817, 119 S. Ct. 1707, 143
L. Ed. 2d (1999). Given our
discussionregarding the appropriate unit
of prosecution for sec. 922(g)(1) and
sec. 922(j), we conclude that the
district court correctly instructed the
jury that it only needed to find that
Buchmeier had possessed or received,
depending on the charge, one of the
firearms listed in each count in order to
satisfy the elements of those violations.
As we have explained, the focus of these
provisions is upon the individual
defendant and the actions taken by the
defendant to acquire firearms. A
convicted felon is to be prosecuted under
sec. 922(g)(1) not for the number of
firearms he possesses, but instead for
each transaction or acquisition by which
that defendant has attempted to arm
himself. See, e.g., United States v.
Oliver, 683 F.2d 224, 232-33 (7th Cir.
1982); see also United States v. Jester,
139 F.3d 1168, 1171 (7th Cir. 1998)
("Congress enacted sec. 922(g)(1) in
order to keep firearms out of the hands
of those persons whose prior conduct
indicated a heightened proclivity for
using firearms to threaten community
peace and the ’continued and effective
operation of the Government of the United
States.’") (citation omitted). Likewise,
a defendant receiving stolen firearms is
to be prosecuted under sec. 922(j) not
for each of the stolen firearms that the
defendant receives in a single
transaction, but instead for each
transaction or instance by which that
defendant receives another stolen firearm
or group of stolen firearms. See, e.g.,
McFarland v. Pickett, 469 F.2d 1277,
1278-79 (7th Cir. 1972). Thus, it is
sufficient in this case that the jury was
required to unanimously find that
Buchmeier possessed one of the firearms
listed in each of the counts of the
indictment against Buchmeier./4
Buchmeier is correct in noting that the
jury’s verdict form did not inform him
as to the specific firearms the jury
found him to have possessed. Indeed, this
general verdict required us to evaluate
the sufficiency of the evidence for each
firearm listed in the indictment when
reviewing Buchmeier’s claim that the
evidence was insufficient to support his
conviction. We also recognize the
possibility of a situation where a
defendant is convicted of one count of
violating sec. 922(g)(1) but that such a
large number of firearms are listed in
the count that the defendant’s inability
to know which firearms he was convicted
of having possessed creates such a burden
on that defendant’s ability to appeal his
conviction that it would be problematic.
However, we do not find such a situation
in this case. Only three firearms were
listed in Counts I and III, and seven
firearms were listed in Counts IV and VI.
Furthermore, the evidence presented at
trial indicated that Buchmeier acquired
these firearms in groups, through three
transactions, further enabling Buchmeier
to focus his efforts in challenging his
conviction on appeal. Finally, the
evidence indicating Buchmeier possessed
these firearms came from a limited number
of sources, primarily four witnesses, as
is demonstrated by his challenge in this
appeal to the sufficiency of the
evidence. Therefore, Buchmeier’s
inability to know which firearms the jury
found him to have possessed does not
violate constitutional notions of due
process.
III. Conclusion
For the aforementioned reasons, we AFFIRM
Buchmeier’s conviction on all counts of
the indictment.
FOOTNOTES
/1 Varying only slightly from the current version,
the version of sec. 922(j) reviewed by the court
also made it unlawful for any person to "receive,
conceal, store, barter, sell, or dispose of any
stolen firearm or stolen ammunition, . . . which
is a part of . . . interstate or foreign com-
merce, knowing or having reasonable cause to
believe that the firearm or ammunition was sto-
len." McFarland, 469 F.2d at 1278.
/2 Section 922(h) prohibited "any person (1) . . .
who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding
one year; . . . to receive any firearm or ammuni-
tion which has been shipped or transported in
interstate or foreign commerce." Oliver, 683 F.2d
at 232.
/3 At that time, sec. 1503 explained that:
Whoever corruptly, or by threats or force, or by
any threatening letter or communication, endeav-
ors to influence, intimidate, or impede any
witness, in any court of the United States or
before any United States commissioner or other
committing magistrate, or any grand or petit
juror, or officer in or of any court of the
United States, . . . in the discharge of his
duty, . . . or corruptly or by threats of force,
or by any threatening letter or communication,
influences, obstructs, or impedes, or endeavors
to influence, obstruct, or impede, the due admin-
istration of justice, shall be fined not more
than $5,000 or imprisoned not more than five
years, or both.
Berardi, 675 F.2d at 897 n.3.
/4 Because the district court instructed the jury
that it was required to unanimously agree as to
which particular firearm Buchmeier acquired or
received with regard to each count, we need not
reach the issue of whether it would have been
sufficient for the jury to have simply agreed
that Buchmeier possessed at least one of the
firearms listed in each count without agreeing
which particular firearm he possessed. See United
States v. Verrecchia, 196 F.3d 294, 298-301 (1st
Cir. 1999) (holding that because a jury need only
agree that a defendant possessed "a" firearm in
order to find a defendant guilty of violating
sec. 922(g)(1), a unanimity instruction was not
required where defendant was charged with one
count of violating sec. 922(g)(1) and multiple
firearms were listed in that count).