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United States v. Berry

July 10, 1995






Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 94 CR 229--Marvin E. Aspen, Judge.

Before FLAUM and MANION, Circuit Judges, and SHARP, Chief District Judge. *fn1

SHARP, Chief District Judge.

ARGUED MAY 18, 1995


This trial concluded on June 22, 1994, with the appellant convicted on all counts of a superseding and earlier indictment, charging violations of 18 U.S.C. secs. 924(a)(1)(A) and 922(a)(6). He was sentenced on October 17, 1994, to a 27-month term of imprisonment. This appeal followed. We have jurisdiction. We affirm.


The appellant makes an argument with reference to the sufficiency of evidence, and that claim must be examined under the formulation of Jackson v. Virginia, 443 U.S. 307 (1979). See also United States v. Williams, 33 F.3d 876, 878 (7th Cir. 1994). On appellate review, this court evaluates a challenge to the sufficiency of evidence following a conviction by a jury by reviewing the evidence in the light most favorable to the government and drawing all reasonable inferences in its favor to determine if any rational jury could have found beyond a reasonable doubt the essential elements of the crime. The focus is on the jury's responsibility to determine the credibility of witnesses. United States v. Patterson, 23 F.3d 1239, 1244 (7th Cir. 1994). Most recently, see, United States v. Lahey, __ F.3d __ Nos. 94-2203 and 94-2204 (7th Cir. May 22, 1995). The appellant attempts to invoke United States v. Fearn, 589 F.2d 1316 (7th Cir. 1978) with regard to a narrowly constructed rule referencing the corroboration of admissions or confessions by a defendant. Most recently, this court has specifically held that a defendant may not be convicted based on his uncorroborated admissions made after the crime has ended. See United States v. Waldemer, 50 F.3d 1379 (7th Cir. 1995). See also United States v. Mukovski, 863 F.2d 1319, 1325 (7th Cir. 1988), cert. denied, 489 U.S. 1067 (1989).

The original indictment alleged six specified occasions between February 1992 and July 1993 at Breit and Johnson Sporting Goods in Oak Park, Illinois where this appellant did knowingly make false statements with respect to information required by federal law to be kept in the records of a federally licensed firearms dealer. The superseding indictment added five additional counts made under 18 U.S.C. sec. 922(a)(6) which prohibits intentional false statements intended or likely to deceive a firearms dealer in connection with acquisition of firearms. The superseding indictment involved the same firearms referred to in the original indictment and the same time period of February 1992 to July 1993.

The evidence most favorable to the verdict shows that Berry would go to the Breit & Johnson gun store in Elmwood Park, Illinois and purchase handguns for individuals who could not do so on their own because they were convicted felons. At the time of each purchase, Berry would fill out Bureau of Alcohol, Tobacco and Firearms (BATF) Form 4473, as required by law. This form required the buyer to state his or her name and birth date, answer questions regarding the buyer's possible illegal drug use and felon or fugitive status, and sign his or her name as the buyer. Berry contests the jury's finding that he falsely stated on various Forms 4473 that he was not a user of illegal narcotics. Breit & Johnson would retain a portion of the Form 4473, which they referred to as a "gun sheet."

At the trial, Kenya Freeman, who had been granted immunity, testified that he had gone with Berry to the Breit and Johnson store, where Berry had purchased a gun for Freeman. Freeman further testified that Berry had then requested cocaine from Freeman. Freeman additionally testified that Berry stated he had been a "strawman" before.

The facts here simply do not benefit the appellant under the Fearn-Mukovski-Waldemer line of authority. Here, to be sure, the evidence included a detailed confession made by this appellant a month after his arrest but there was more. The evidence also included testimony of Kenya Freeman and it was for the jury and it is not for this court to evaluate the credibility of witness Freeman. Also provided were ATF Forms 4473 and the so-called "pistol sheets" themselves, all of which squared up with the defendant's admissions at the time of his arrest and 30 days later. Thus, under Jackson v. Virginia, 443 U.S. 307 (1979), any argument with regard to the insufficiency of the evidence fails.


The next issue which requires our specific attention has to do with the appellant's motions for continuance made after the filing of the superseding indictment on May 31, 1994. As indicated, there was a motion made by the appellant on June 1, 1994, for a "continuance to adequately investigate and prepare for trial on the superseding indictment." On June 3, 1994, the appellant also moved for a continuance of the trial date long enough to allow the defendant to obtain a transcript of the suppression hearing. In neither of the motions was an exact time requested. The district court granted the motions to continue the trial date, excepting that the jury selection would be had on the date originally scheduled, namely, June 6, 1994, thereby giving the appellant more than two additional weeks' time in which to prepare for trial and to file any objections to the recommendation of the magistrate judge made on the motion to suppress. Actual presentation of evidence commenced on June 21, 1994. During this time frame, the appellant did in fact file written objections to the recommendations of the magistrate judge on the suppression issue. The district judge adopted the recommendations of the ...

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