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United States v. Wescott

August 3, 2009


Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 06 CR 50008-Frederick J. Kapala, Judge.

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


Before FLAUM, ROVNER and WOOD, Circuit Judges.

A jury convicted David L. Wescott of two counts of unlawful possession of firearms, in violation of 18 U.S.C. § 922(g)(8). Wescott com-plains that the evidence was insufficient to sustain his conviction, that the court erred in admitting certain evidence, that prosecutorial misconduct prevented him from receiving a fair trial, and that the statute under which he was convicted is unconstitutional. We affirm.


In 2004, Glenda Wescott sought an order of protection against her former husband, David Wescott.*fn1 Wescott received notice of his ex-wife's petition and appeared with counsel at the June 25, 2004 hearing on the petition. R. 103, Gov't Ex. 1. At that hearing, an Illinois state court judge entered an Order of Protection (hereafter "Order") prohibiting Wescott from committing "further acts of abuse or threats of abuse" towards Glenda, and ordering him to stay away from her. The Order was entered on a standardized form and Glenda's attorney filled in the blanks and checked off boxes as the court ruled on the petition. On the first page of the Order, in a section identifying Wescott as the respondent, a box is checked next to the warning: "Caution: Weapon Involved." The Order indicates that Wescott had abused Glenda and would likely continue to abuse her unless the Order was entered. The court granted Glenda exclusive possession of a home the two had shared at 8850 Hales Corner in Stillman Valley, Illinois (hereafter "the Hales Corner house"). The court found that "there is a danger of the illegal use of firearms" and ordered Wescott to turn over "any and all firearms" including any registered to him and any located at 2710 Centerville in Rockford, Illinois, Wescott's residence at that time. The Order specified that Wescott was to turn over the firearms to the Ogle County Sheriff's Office by June 28, 2004, for safekeeping. This part of the Order expressly referenced 18 U.S.C. § 922(g), the provision of federal law under which Wescott was eventually charged. The Order was to remain in effect for two years, until June 24, 2006. The face of the Order indicated that Wescott was served with a copy of the Order in open court on June 24, 2004.

On November 29, 2005, just before midnight, a red Chevy Lumina caught the eye of Officer Timothy Stec of the Rockford Police Department as he was patrolling his assigned area. The Lumina was the only other car on the road at that hour, and Officer Stec noticed that the trunk was riding unusually low. He ran the license plate on his squad car computer and determined that the car was registered to Wescott and that Wescott's driver's license had expired in June 2005. The computer also indicated that there was an Order of Protection entered against Wescott that prohibited him from possessing firearms and ammunition. Because the driver of the Lumina matched the description of Wescott given by the computer, Officer Stec decided to pull the car over. In order to avoid passing traffic and because the Order indicated that a weapon was involved, Officer Stec initially approached Wescott's car from the passenger side of the vehicle. Wescott turned over his expired license at the officer's request, and the officer explained that he was issuing a citation for driving on an expired license. Wescott told the officer that he was heading home from work, and was concerned about the cost of the citation. Officer Stec returned to his squad car to complete the traffic citation for driving on an expired license, and then approached the driver's side of the car to give Wescott the ticket.

At that time, the officer noticed that there were several bullets lying loose on the floor of the car. He informed Wescott that the Order prohibited him from possessing firearms or ammunition and asked him if he had those items in the car. Wescott denied that he did. Officer Stec than asked Wescott to step out of the car, and secured him in the back of his squad car. He asked Wescott again whether there were any weapons in the car and Wescott replied that "it was possible." Officer Stec searched the passenger compartment of the car and found 427 bullets, some rolling around loose and some secured in plastic baggies. He then ran a check on Wescott's Firearms Owner Identification card ("FOID card") and learned that Wescott's FOID card had been revoked. He advised Wescott that he was arresting him for possessing ammunition and having a lapsed FOID card. Wescott then told the officer that he was in the process of moving from a house on Bavarian Lane to a house in Stillman Valley that had previously been covered by the Order. He told the officer that he still owned a few rifles, despite the Order. When Wescott again asked about the cost of his bond, Officer Stec told him that, unless he found firearms in the car, the bond would be the same as the original citation. Wescott took a deep breath and told the officer "he was going to need a whole lot more money." R. 86, Tr. at 60.

Subsequent to the arrest, police officers impounded Wescott's car and conducted an inventory search. In the trunk of Wescott's car, the officers found almost enough guns to arm a platoon. Immediately on opening the trunk, the officers saw two new shotguns, still in the original boxes. Inside two duffel bags, the officers found seventeen pistols and revolvers. A subsequent search of the Hales Corner house resulted in the confiscation of two more rifles and another pistol as well as an astonishing amount of ammunition. The officers who searched the Hales Corner house took photographs of the guns and ammunition that they found there, documenting the location of these items before they were removed.

During an interview with police officers following his arrest, Wescott said he was moving from the Hales Corner house to a house on Bavarian Lane. He told the officers he had not lived at Hales Corner for approximately two years, that he was aware of the Order of Protection, that he knew it was still active and that he had placed the duffle bags in his car trunk a few days before the traffic stop. A detective prepared a written statement for Wescott based on his oral admissions. He asked Wescott to initial before and after each paragraph if he agreed with the contents. Wescott made a few corrections and initialed before and after each paragraph, but balked when he was asked to sign the statement. Instead, he tore the paper in half.

Wescott was charged with two counts of violating 18 U.S.C. § 922(g)(8), one related to the weapons found in the car and one for the weapons found at the Hales Corner house. Section 922(g)(8) declares that it shall be unlawful for any person- who is subject to a court order that-(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(8). A jury found Wescott guilty on both counts and the court sentenced him to thirty-nine months' imprisonment, three years of supervised release and a $7500 fine. Wescott appeals.


On appeal, Wescott first claims that the evidence was insufficient to convict him on the charged offense because the Order of Protection was not valid and was void on its face. Second, he complains that the court erred in admitting unfairly prejudicial evidence regarding the number of firearms and the amount of ammunition recovered. Third, he maintains that prosecutorial misconduct prevented him from receiving a fair trial. Fourth, he contends that Section 922(g) is an unconstitutional exercise of federal power over a matter traditionally regulated by the states. And finally, he ...

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