Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 00-CR-17--James T. Moody, Judge.
Before Coffey, Easterbrook and Ripple, Circuit Judges.
The opinion of the court was delivered by: Coffey, Circuit Judge.
John D. "Spider" Conley is a twice-convicted felon with a self-destructive appetite for guns and motorcycles. Conley's first felony conviction was in 1982, after he and his fellow members of the Satan Calvary bikers gang fired several gun shots at a police officer who was attempting to arrest them for disorderly conduct. Conley was incarcerated for fourteen years for attempted murder and was barred by federal law from possessing any type of firearm after his release from prison. Nevertheless, not long after his parole in December 1995, Conley joined an Indiana chapter of the Invaders motorcycle club, acquired at least six firearms--including two rifles, two shotguns, a pistol and a revolver--and stored them inside his home and a shed on his property in Crown Point, Ind. The possession of these weapons formed the basis of a two-count supserseding federal indictment charging Conley with violating the Armed Career Criminal Act, 18 U.S.C. sec. 922(g)(1). Conley pled not guilty, the case proceeded to trial, and a jury found Conley guilty of both charges. The district court sentenced Conley to 108 months in prison followed by a three-year term of supervised release, with the sentences and subsequent periods of supervision to run concurrently with each other. The court also ordered Conley to pay a special assessment of $100 on each of the counts, for a total of $200. We affirm.
The superseding indictment in this case specifically charged Conley with: (1) possession of a Mossberg shotgun on July 7, 1999; and (2) possession of the same Mossberg shotgun plus several other firearms on January 27, 2000.*fn1 In order to prove both counts of the indictment, the Government presented evidence establishing that Conley possessed the Mossberg on two separate occasions, i.e., June 7, 1999 and January 27, 2000, and that his possession of the weapon was completely interrupted at some point between June 1999 and January 2000.
The Government proved that Conley's possession of the shotgun was interrupted by offering proof that the weapon was in the sole possession of another man, Dwight "Lightbulb" Sheldon, during the late summer and early fall of 1999. Sheldon, who is one of Conley's friends and a fellow member of the Invaders, testified that he was the sole owner of the shotgun, having purchased it for $100 from a bartender in Kentucky in 1998. Sheldon subsequently traveled to Crown Point, Ind., in the spring of 1999 and moved into a trailer located in Conley's backyard. Sheldon testified at trial that he usually kept the shotgun hidden behind the front seat of his pickup truck or in a toolbox inside the trailer. Under cross-examination, however, Sheldon admitted that he was frequently under the influence of drugs and alcohol. In view of this fact, Sheldon conceded that he may have given the weapon to Conley in early July 1999 and asked Conley to return it sometime thereafter. Indeed, several witnesses confirmed that Conley fired the Mossberg in order to scare away a group of teenagers, who were present on Conley's property July 7, 1999 in order to collect a debt owed them by a friend of Conley's son, who was staying at Conley's home that evening. Sheldon reacquired the shotgun later in the summer and remained in possession of the weapon until the fall, when he abandoned the firearm somewhere on Conley's property and moved out of state.
A number of federal agents testified that they discovered the shotgun inside Conley's padlocked storage shed when they searched his property pursuant to a warrant executed the afternoon of January 27, 2000. On that occasion, Conley gave a key to the agents and told them that his wife and children had been ordered to keep out of the structure. He admitted that he kept some of his most valuable possessions inside the shed, including photographs of himself riding his beloved Harley-Davidson motorcycle across the vast midwestern prairie. The agents further uncovered several additional photographs depicting Conley holding as many as six firearms, including a Thompson machine gun.
The preceding evidence, which we presume was accepted and believed by the jury, served to convict Conley of obtaining possession of the Mossberg firearm on or around the date charged in Count I of the indictment (July 7, 1999) then completely losing such control before reacquiring it by the date charged in Count II of the indictment (January 27, 2000).*fn2 Conley now appeals, arguing: (1) that the indictment was multiplicitous; and (2) that the trial court erred by admitting certain photographs that Conley feels are unfairly prejudicial.*fn3
Conley's first challenge is that the two-count indictment under which he was convicted is multiplicitous because it charged him with a single course of conduct, rather than two separate offenses. Conley argues that the indictment charged and convicted him on two counts of possession of the Mossberg shotgun without alleging that his possession was interrupted, as is required by the statute. Based on this argument, Conley asks us to vacate one of his convictions as violating the Double Jeopardy Clause of the Fifth Amendment. (Br. at 12.) We decline to do so, because we are convinced that the indictment adequately identified the nature of the separate charges facing Conley so as to comport with the requirements of the Double Jeopardy Clause.
At the outset, we reject Conley's claim that he raised the issue of multiplicity in the district court, for upon review of the record we are convinced that he failed to argue that the indictment was multiplicitous but instead raised only the separate and distinct issue of whether the indictment was ...