Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 07 CR 57-Robert L. Miller, Jr., Chief Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
ARGUED SEPTEMBER 15, 2008
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
Defendant Cory Lee Brandt and a co-defendant, Larry Adam Beck, were indicted on June 13, 2007, for crimes related to the sale of an AK-47 rifle on August 18, 2006. Beck was charged under 18 U.S.C. § 922(g)(1) with being a felon in possession of a firearm and ammunition, and Brandt was charged under 18 U.S.C. § 1001(a)(2) with making a false statement to federal agents. Beck pled guilty, and Brandt's trial commenced on November 5, 2007. During trial, Brandt moved for a judgment of acquittal, arguing that the government had not proven all elements of the crime beyond a reasonable doubt. The district court denied the motion, which Brandt did not renew. During the jury instruction conference, Brandt requested an instruction based on the "exculpatory no" doctrine. The district court denied the request, citing Brogan v. United States, 522 U.S. 398 (1998). Brandt appeals the district court's denial of his motion for a judgment of acquittal and its refusal to grant the requested instruction. We affirm.
On August 18, 2006, Brandt and his long-time friend Beck were drinking at Roxie's Manhattan Bar in Mishawaka, Indiana. Beck, a convicted felon, was interested in selling his AK-47 rifle, and asked if Brandt knew of any potential buyers. Brandt stated that he was unsure, but he agreed to make some phone calls on Beck's behalf. Brandt contacted Robert Smith, who expressed an interest in purchasing the rifle, and Brandt informed Beck that he had found a potential buyer. After Brandt arranged a meeting with Smith, Brandt drove Beck home to retrieve the gun. They then met Smith, sold the gun, and returned to the bar to continue drinking. Brandt testified that he took the money and handed the gun to Smith, but that he believed at the time that the transaction was legal.
That night, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") received a tip from local law enforcement about the potential federal firearms violation. Agent Lucas Battani and Special Agent Craig Ed-wards began their investigation by interviewing Tara Lemon, Beck's wife. They also interviewed Beck, who by then was in jail for an unrelated altercation, to determine the gun's whereabouts. In the interview, Beck told the agents that he did not know the identity of the buyer but that Brandt, who had brokered the sale, would have this information. Beck testified at trial that after his interview with the ATF agents, Brandt visited him in jail and told him not to say anything about the gun sale.
After interviewing Beck, ATF agents interviewed Asheley James and Brad Sanders, who were present at the bar when Beck and Brandt discussed the sale. Both James and Sanders recounted the same version of events as Beck. Sanders further stated that he had informed Brandt that the ATF was trying to locate him.
On August 24, Agent Battani called a telephone number he believed to be Brandt's. A woman who identified herself as Cynthia Finn answered the phone and confirmed that Brandt was home. Battani and Special Agent Edwards then went to Brandt's home. Brandt agreed to talk to the agents outside. The agents did not record the interview because, in their view, the use of recording devices often intimidates witnesses. Battani did, however, take notes of the interview, which he and Ed-wards later used to compile their report.
The ATF agents recounted a significantly different version of the ensuing discussion than that of Brandt and Finn. According to the agents' version of events, Battani informed Brandt that they were investigating the sale of a gun. Battani asked if Brandt and Beck had left the bar on August 18, to which Brandt responded, "No. We had been there all night." Battani then stressed that they were asking about his involvement in the gun sale. Brandt replied that he didn't know what they were talking about. Special Agent Edwards explained that lying to a federal agent was punishable under federal law, and that Brandt was not a suspect but a witness. According to the agents, Brandt replied, "There was no gun."
Agent Battani then recounted to Brandt the agents' discussion with Beck. Brandt retorted that he knew they were lying because he had visited Beck, and Beck had said nothing about speaking with the authorities. The agents explained that they had talked to Beck, that Brandt had not done anything wrong, and that Brandt should tell the truth. According to the agents, Brandt repeated, "There was no gun." Special Agent Edwards explained for a second time that lying to federal agents was a crime and told Brandt that if he told the truth, they would leave. Brandt did not respond.
According to the agents, Battani then asked Brandt if the statement he wished to make was that he and Beck never left the bar, that they had never sold a gun that evening, and that he had no knowledge of a gun. Brandt answered, "Yes, that's what I'm saying." Brandt then asked if they were done. The agents maintain that as Brandt walked back into the house he said, "[Beck] didn't even know the guy."
Brandt's recollection of the interview varies considerably from that of Agent Battani and Special Agent Edwards. According to Brandt, Battani began by explaining the details of the sale. When Battani reached the point where he described Beck and Brandt's trip to Beck's house, Brandt said, "I don't know what you're talking about." According to Brandt, this statement was an attempt to end the conversation. Brandt testified that the agents grew very upset and asked him if he knew that the punishment for obstructing a federal investigation was up to one year in jail. Brandt then asked if he was under arrest. The agents told him he was not, and Brandt returned to the apartment. Cynthia Finn, who claims to have overheard the conversation from inside the apartment, testified to the same version of events as Brandt.
According to Smith, Brandt called him on August 24 after this encounter with ATF agents and told him that "if everyone just kept their mouth shut then... nobody would get in trouble." Brandt later admitted to speaking ...