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United States v. Inglese

March 08, 2002

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.

Before Posner, Easterbrook, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge.

Argued September 28, 2001

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).*fn1 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.*fn2 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 ...


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