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United States v. Conn

July 16, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BILL S. CONN, SR., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 00 CR 160--Sarah Evans Barker, Judge.

Before Ripple, Manion and Rovner, Circuit Judges.

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

ARGUED APRIL 10, 2002

Bill S. Conn, Sr., was convicted of one count of willfully dealing in firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). He was sentenced to a two-year prison term. He now appeals his conviction and submits that expert testimony was admitted improperly. He further contends that the jury could not have convicted him on the sixth count after having acquitted him on five related counts. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Acting on a tip from a local firearms dealer, the Bureau of Alcohol, Tobacco and Firearms ("ATF") in cooperation with the Indiana State Police ("ISP") investigated the activities of Bill S. Conn, Sr., of Laurel, Indiana, a small town in the southeastern corner of the state, near Ohio. Specifically, the dealer suspected that Mr. Conn might be dealing in firearms without a license. The ATF and ISP cooperated in an undercover investigation designed to discover whether Mr. Conn was operating an unlicensed firearms dealership.

Over a three-month period, ISP officers and ATF agents acquired seven firearms on six occasions from Mr. Conn. On January 26, 2000, ISP Detective Ron Shoemaker went to Mr. Conn's farm. He told Mr. Conn that he was a felon, and that he worked for a trucking company. At first, Detective Shoemaker attempted to sell Mr. Conn two guns. They negotiated but Detective Shoemaker's asking price was too high. Detective Shoemaker then purchased a Davis Industries model D25, .25 caliber Derringer handgun. On February 10, Detective Shoemaker returned with ISP Detective Scott Stockton and purchased a Fratelli Tanfoglio model Titan II, .380 caliber pistol. On February 23, the two men returned and this time Detective Stockton traded two DeWalt drills for a Phoenix Arms model HP22, .22 caliber pistol. On March 6, Detective Stockton, again accompanied by Detective Shoemaker, traded a drill and chainsaw, along with $150 for a Taurus model PT92AF, 9 mm pistol. On April 17, 2000, Detective Stockton returned to Mr. Conn's farm with Jason Lowe, an ISP employee, who was then 19 years old. Lowe traded a Stihl Model 44 chainsaw for a Davis Industries model P380, .380 caliber pistol. Finally, on April 24, 2000, Detective Shoemaker and ATF Special Agent Mike Jaraczeski returned to Mr. Conn's farm. Agent Jaraczeski traded a television for a Lorcin Engineering model L380, .380 caliber pistol, and he purchased for $200 a Charter Arms model Undercover, .38 caliber revolver. The agents recorded each transaction on audiotape, and excerpts of these tapes were played for the jury at trial.

Once the undercover operation was completed, the ATF obtained a search warrant and seized 165 firearms and 10,000 rounds of ammunition from Mr. Conn's home, most of which were in one room (called the "gun room" by law enforcement agents and "Bill's room" by Mr. Conn's wife and adult son). Mr. Conn was arrested and indicted on six counts of willfully dealing in firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). Each count of the indictment corresponded to a separate firearms purchase by the undercover officers.

B. District Court Proceedings

In addition to the officers who made the undercover purchases, the Government presented the testimony of Alberta Mohler, Rodney Pollard, Leesa Wyatt, firearms dealer James Wulff, ATF Inspector Lisa Laughlin and ATF Special Agent Scott McCart, who had coordinated the investigation into Mr. Conn's activities. Inspector Laughlin testified about the nature of the federal licensing requirements for firearm dealers, including the forms that must be filled out with each firearm purchase. Mohler testified about her transactions with Mr. Conn involving six firearms that she had purchased from or sold to Mr. Conn in the late 1990s. Wulff testified about firearms he had sold to Mr. Conn as well as a firearm he had sold to Wyatt's husband, which had been stolen and ended up in the possession of Mr. Conn.

It was Rodney Pollard, a truck driver, who told Wulff about Mr. Conn's firearms cache after Pollard went to Mr. Conn's farm to sell some firearms. Pollard thought Mr. Conn's offer was too low and declined to sell him the firearms. Pollard told Mr. Conn that he might be interested in purchasing a hunting firearm for his son. Mr. Conn offered to sell him a .357, but Pollard thought the price was too high. Pollard also testified that while he was there, two young men came to Mr. Conn's farm and made a payment of some kind on a firearms purchase. The story of these young men was the subject of significant cross-examination by Mr. Conn's attorney. Apparently, the first time Pollard related this aspect of his experience was at trial.

Agent McCart was the Government's final witness. He testified about the items seized from Mr. Conn's house, including receipts for nine firearms Mr. Conn had purchased from individuals, 165 firearms and 10,000 rounds of ammunition. Agent McCart also narrated the presentation of a videotape made during the search and seizure, which the jury viewed during his testimony. After Agent McCart testified that the search had revealed eight different calibers of ammunition without a matching firearm in Mr. Conn's collection, the Government asked Agent McCart "whether or not the firearms recovered in the search warrant . . . are generally considered collector's items?" Tr.III at 417.

The Government prefaced its question by asking Agent McCart to base his answer on his "training and experience as an agent with the Alcohol, Tobacco and Firearms Bureau." Id. Mr. Conn objected. Mr. Conn's attorney stated that "I don't believe this witness is qualified to answer the question. I don't believe there is a proper foundation to establish that he is a firearm collector or has any knowledge of what is a collector's item or not." Id. The district court then permitted Mr. Conn's attorney to voir dire Agent McCart. Mr. Conn's attorney asked whether Agent McCart was a firearms collector and whether Agent McCart went to firearm shows ...


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