15 F.3d 1393 (7th Cir. 1994), 92-3433, United States v. Davis

Docket Nº:92-3433.
Citation:15 F.3d 1393
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael DAVIS, Defendant-Appellant.
Case Date:February 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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15 F.3d 1393 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Michael DAVIS, Defendant-Appellant.

No. 92-3433.

United States Court of Appeals, Seventh Circuit

February 7, 1994

Argued June 10, 1993.

Rehearing and Suggestion for Rehearing In Banc Denied April

21, 1994.

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Barry R. Elden, Asst. U.S. Atty., Haywood E. McDuffie (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Daniel S. Alexander (argued), Patrick E. Boyle, Chicago, IL, for defendant-appellant.

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Before POSNER, Chief Judge, ESCHBACH and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

In need of quick cash to satisfy his heroin addiction, defendant-appellant Michael Davis sold a .12 gauge sawed-off shotgun to Debra Schwede, a paid informant assisting in a Bureau of Alcohol, Tobacco, and Firearms investigation. A jury convicted Davis of possession of a non-registered firearm in violation of 26 U.S.C. Sec. 5861(d) and possession of a firearm by a felon in violation of 18 U.S.C. Sec. 922(g)(1), but acquitted him of transferring a firearm in violation of 26 U.S.C. Sec. 5861(e). The district court sentenced Davis to 33 months of imprisonment to be followed by three years of probation (supervised release). On appeal, Davis contends 1) the evidence in support of the two possession convictions was insufficient, 2) certain remarks made by the prosecutor during closing argument denied him a fair trial, 3) the jury selection process was improper, and 4) the government engaged in outrageous conduct. We affirm.


Davis's convictions arose out of "Operation Triggerlock," an ATF investigation designed to rid a Chicago, Illinois west-side neighborhood of illegal weapons sales. As part of the operation, the ATF employed Schwede, a neighborhood local, and had her accompany John Rotunno, an ATF special agent posing as her drug-dealing, weapons-buying Californian brother.

Schwede testified that on June 11, 1990, while she stood next to a hot dog stand, Davis pulled up and asked her if her "brother was still interested in that." By "that," Schwede assumed Davis meant guns because, as Schwede testified, "everyone on the west side knew that my brother was buying guns." After telling Davis her brother was still interested, Davis replied that he had a gun he wanted to sell. After Davis departed, Schwede consulted with her ATF contacts and made plans to purchase the weapon.

Two days later, Schwede, carrying a concealed tape recorder furnished by the government, went to Davis's home. Davis, after greeting Schwede and inviting her into his home, retrieved a sawed-off shotgun from a closet, wrapped it in Christmas paper, and gave it to her. Schwede handed Davis $250, placed the wrapped gun in a bag, and departed.

At trial, Davis readily admitted he sold the sawed-off shotgun to Schwede, but claimed he was entrapped into illegally possessing as well as entrapped into illegally selling the weapon. He testified that in October of 1989 he inherited a house--with a full-barreled shotgun in it--from his deceased father. After hearing Schwede repeatedly make known her brother's desire to buy sawed-off shotguns, Davis stated he finally gave in and used a hacksaw to saw off the shotgun's barrel; as he put it, "I just grabbed a hacksaw and went at it." Davis testified that upon receiving the $250, "I ran straight out of the house and went to get me some heroin." He claimed that both his severe heroin addiction and Schwede's constant hounding him for the gun induced him to shorten the barrel and sell the weapon for quick cash.


I. Sufficiency of the Evidence

Davis contends the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt on both possession counts. Count I charged Davis with being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1), and Count II charged him with possessing a non-registered firearm, in violation of 26 U.S.C. Sec. 5861(d).

When reviewing challenges to the sufficiency of evidence supporting a conviction, we consider the evidence presented at trial in the light most favorable to the government; if we conclude that any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, we will reject the defendant's sufficiency challenge. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The reviewing court neither weighs the evidence nor assesses the credibility of witnesses, "even when the evidence

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at trial is 'totally uncorroborated and comes from an admitted liar, convicted felon, large-scale drug-dealing, paid government informant'[.]" United States v. Beverly, 913 F.2d. 337, 358 (7th Cir.1990), cert. denied, 498 U.S. 1052, 111 S.Ct. 766, 112 L.Ed.2d 786 (1991) (citing United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.1989)).

Count I: Felon in Possession of a Firearm

Davis challenges the sufficiency of the evidence under Count I, which charged him with being a felon in possession of a .12 gauge sawed-off shotgun transported in interstate commerce, in violation of 18 U.S.C. Sec. 922(g)(1). Davis stipulated that he is a convicted felon (having been convicted of the sale of a stolen treasury check and possession of stolen mail on June 20, 1989) and does not dispute the fact that the gun he sold is classified as a "weapon" under the statute 18 U.S.C. Sec. 921(a)(3)(A). Neither does Davis challenge the government's evidence that the gun was transported in interstate commerce.

It appears Davis's sole challenge to the sufficiency of this particular conviction relies on his assertion that the government entrapped him into removing the gun from his closet and selling it to Schwede. He insists he had not removed the gun from the closet since receiving it, except to shorten the barrel and sell the weapon to Schwede. But Davis ignores the fact that he accepted the shotgun from his father's estate and kept the shotgun in his closet in his house. By keeping the weapon in his immediate occupancy and control, the convicted felon was in actual possession of the weapon in violation of federal law. Actual possession "exists where the thing is in the immediate occupancy and control of the party." BLACK'S LAW DICTIONARY 1047 (5th ed. 1979). Davis's own testimony conclusively shows he actually possessed the firearm from the moment he inherited it. On cross-examination, Davis testified as follows:

Q. Where was the gun all that time?

A. In the house.

Q. And that's your house, correct?

A. Right.

Q. You were prohibited from having any guns. The law did not allow you to have any guns, correct?

A. Yes.

Q. But yet you had that?

A. I--well, it was something that I had inherited, you know. It's just [the] same as an old suit, man, you know. If someone's giving it to you, it has sentimental value to you.

Q. So you kept it?

A. Well, I took it from--well, I kept it from people that could get in possession of it, yeah.

Q. So you kept it?

A. Well, yes.

Q. And no one induced you to keep it. You kept it because you wanted to keep it, correct?

A. No. Well, yeah.

Q. You had the gun, kept the gun, prior to even having the conversation with [Schwede], isn't that correct?

A. The gun was in the house.

Not only does substantial evidence of probative value support Davis's conviction under 18 U.S.C. Sec. 922(g)(1) beyond a reasonable doubt, it supports the conviction beyond all doubt, literally. Davis's own stipulations and his own testimony proved he possessed the firearm conclusively. We therefore reject Davis's sufficiency challenge to his conviction of being a felon in possession of a firearm.

Count II: Possession of a Non-Registered Firearm

Neither do we find persuasive Davis's argument that the evidence presented was insufficient to support his conviction under Count II, possessing a non-registered firearm. 26 U.S.C. Sec. 5861(d) makes it unlawful for an individual "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record[.]" For purposes of Sec. 5861(d), a "firearm" is defined, in part, as "a shotgun having a barrel or barrels of less than 18 inches in length." 26 U.S.C. Sec. 5845(a). Davis stipulated that his shotgun was not registered, and it is undisputed that the shotgun

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he sold to Schwede had a barrel measuring less than 18 inches in length.

Davis maintains that he reduced the barrel to less than 18 inches in length only because he was entrapped into shortening the barrel by Schwede's urging him to sell her brother a sawed-off shotgun. Davis testified that he sawed off the barrel with a hacksaw shortly before the June 11th, 1990 sale because he needed quick cash to satisfy his heroin addiction. The jury, however, was not required to--and obviously did not--believe Davis's entrapment defense. Rather, the jury's guilty verdict demonstrates it believed ATF special agent Mark Bartholomew, who testified that based on the wear and rust exhibited at the point where the barrel was cut, the barrel had been sawed off for quite a period of time, "probably four or five years."

The jury's acquittal of the illegal transfer charge (Count III) is of no consequence to our analysis. Even if the jury believed that the government entrapped Davis into selling the gun, it does not necessarily follow that the jury would come to the conclusion that the government also entrapped Davis into shortening the barrel. It was...

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