U.S.A. v. Buchmeier

• Decision Date: 26 June 2001
• Docket Number: No. 00-2410,00-2410
• Citation: 255 F.3d 415
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHANE BUCHMEIER, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 415

255 F.3d 415 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHANE BUCHMEIER, Defendant-Appellant.

No. 00-2410

In the United States Court of Appeals For the Seventh Circuit

Argued January 18, 2001

Decided June 26, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 82--Joan B. Gottschall, Judge. [Copyrighted Material Omitted]

Before Cudahy, Kanne, and Rovner, Circuit Judges.

Kanne, Circuit Judge.

A jury found Shane Buchmeier guilty of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1), and two counts of receiving stolen firearms in violation of 18 U.S.C. sec. 922(j). Because of his multiple prior violent felony convictions, Buchmeier was sentenced as an armed career criminalpursuant to section 4B1.4 of the United States Sentencing Guidelines, which resulted in his receiving a prison term of 188 months. He now appeals, arguing that his conviction is invalid because the district court abused its discretion by: (1) denying his motion to dismiss all counts of the indictment against him because they were duplicitous; (2) refusing to submit a special interrogatory to the jury for each firearm listed in the indictment; (3) refusing to submit his theory of defense instruction to the jury; and (4) denying his motion for a judgment of acquittal. Upon review of the district court's rulings, we agree with the court with regard to all but one of these rulings; we find that Counts I and III of the indictment are duplicitous. However, as we explain, the error resulting from the government's formulation of these counts was harmless. Therefore, we affirm Buchmeier's conviction.

I. History

Arthur Haverstock, a resident of Crown Point, Indiana, took a two-week vacation to the Bahamas, leaving his nineteen- year-old nephew, Justin Gorball, to watch over his house. In his residence, Haverstock maintained an extensive firearms collection. Some of these weapons were located in a gun cabinet in Haverstock's bedroom and others were stored in a gun safe anchored to the floor of a closet. During this two-week period, Gorball invited a recently-made acquaintance, Neil Schroeder, to his uncle's house, and allowed him to sleep there on several occasions. Problems arose, however, when Schroeder began to "visit" Haverstock's house when Gorball was not there and without Gorball's permission. Schroeder brought his friend John Weis with him on several of these visits. He showed Weis the different items in the Haverstock home, including Haverstock's firearms collection. On August 5, Schroeder took Weis with him to Steger, Illinois, to Rocco DeMarco's house, where they met DeMarco, Mark Flamini Rossi, Brian Engel, and Buchmeier. During this visit, Schroeder announced to the group of men that he could obtain firearms. Buchmeier expressed interest, telling Schroeder to "bring them." After this discussion, Schroeder left DeMarco's house with Weis and Rossi and drove to the home of Tommy Joyce. Schroeder obtained a firearm from Joyce's house and returned to DeMarco's house. The group of men then drove to Buchmeier's home. At Buchmeier's house, Weis, DeMarco, and Rossi watched Schroeder give Buchmeier the firearm he had obtained from Joyce's house, and DeMarco saw Buchmeier place the firearm in his van. Weis, DeMarco, and Rossi also heard Schroder tell Buchmeier that he could obtain additional firearms. Buchmeier again expressed his interest to Schroeder, indicating that if Schroeder obtained additional firearms he would take a look at them.

That same day, Schroeder took Weis and Rossi with him to Haverstock's house. Schroeder obtained two handguns from Haverstock's gun safe, which Rossi recognized as a .357 revolver and a .44 magnum revolver. The three men then joined DeMarco, Engel, and Buchmeier at Buchmeier's house, where Schroeder and Rossi each handed Buchmeier one of the firearms taken from the Haverstock home. Buchmeier discharged one of the guns into the woods near his house. He then put one of the weapons into his van. Engel heard Buchmeier explain that he was going to purchase the firearms. After giving Buchmeier these two handguns, Schroeder indicated to Buchmeier that he could also obtain shotguns and rifles. Buchmeier again expressed an interest in Schroeder's offer. Schroeder and Weis then left Buchmeier's house. After Schroeder and Weis had left, Engel and DeMarco heard Buchmeier state that he would "get rid" of the guns he had obtained from Schroeder through an individual by the name of Richie in Park Forest, Illinois.

The next day, on August 6, Schroeder and Weis returned to the Haverstock home. Weis observed Schroeder remove approximately eight rifles from Haverstock's gun cabinet and put them into a duffle bag. Schroder also took a quantity of fishing supplies, which he loaded into a plastic crate. Schroeder and Weis then went to Buchmeier's house with these items. Schroeder displayed the contents of the duffle bag to Buchmeier. DeMarco saw Buchmeier place the duffle bag and fishing supplies into his van. The four men then drove to DeMarco's house. Buchmeier, DeMarco, and Schroeder went inside. Schroeder later emerged from the house carrying a pack of marijuana, a pager, and $150, all of which he showed to Weis.

In relation to these transactions, Buchmeier told DeMarco that he had "pretty much ripped off" Schroeder. Buchmeier also explained that he would trade or sell the firearms. Approximately one week later, DeMarco watched Buchmeier saw off the barrel of a shotgun. Buchmeier told DeMarco that he would keep this firearm in his van for protection. Buchmeier also told Engel that the shotgun was one of the guns he had purchased from Schroeder.

Haverstock returned home from his vacation to find that a number of items had been stolen, including the firearms from the gun cabinet in his bedroom. He contacted the police regarding the burglary. Haverstock was also unable to find the key to his gun safe. After obtaining a new key, approximately two weeks later, Haverstock opened his gun safe and found that two handguns had been removed. Haverstock made an inventory for the police of all of the stolen items.

Special Agent Jeff Emmons, of the Bureau of Alcohol, Tobacco and Firearms (the "ATF"), investigated the Haverstock burglary. During this investigation, Agent Emmons obtained the cooperation of Schroeder and recorded a telephone conversation between Buchmeier and Schroeder regarding the stolen firearms. Some time after recording this conversation, Agent Emmons interviewed Buchmeier. Buchmeier admitted that he had purchased fishing equipment from Schroeder, and that he had seen firearms in the trunk of Schroeder's car, but he denied ever being interested in purchasing firearms from Schroeder, much less having actually purchased any firearms from him. Buchmeier subsequently acknowledged, however, that he handled one of the firearms. He also acknowledged that his voice was the voice on the recorded phone conversation discussing the stolen firearms with Schroeder. Buchmeier explained to Agent Emmons that the firearms had merely passed through his hands. He then asked Agent Emmons why he was interested in him since he was "small time" and had not sold any of the firearms to gang members.

A grand jury returned a six count indictment against Buchmeier and Schroeder. Counts I and IV charged Buchmeier with two instances of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1). Counts III and VI charged Buchmeier with two separate incidents of receiving stolen firearms in violation of 18 U.S.C. sec. 922(j). The remaining two counts of the indictment charged Schroeder with two instances of selling stolen firearms in violation of sec. 922(j). Buchmeier filed a motion to dismiss the four counts of the indictment against him, arguing that the counts were impermissibly duplicitous. The district court denied this motion. Buchmeier was tried by jury and found guilty of all four counts.

II. Analysis

A. Buchmeier's Motion for Judgment of Acquittal

We will first review Buchmeier's claim that the district court improperly denied his motion for judgment of acquittal because if he is correct, we need not address his other claims. Buchmeier argues that the district court erred in denying his motion because the evidence presented at his trial was insufficient to support his conviction. The government contends that the district court properly denied his motion.

We note that there is a question of whether Buchmeier made his motion for a judgment of acquittal in a timely manner. In a case where a defendant has been convicted by a jury, Rule 29(c) of the Federal Rules of Criminal Procedure explains that "a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." Fed. R. Crim. P. 29(c). The jury's guilty verdict was returned on January 15, 1998; however, Buchmeier did not file his motion for a judgment of acquittal until February 2, 1998. We have previously found that a defendant's failure to properly file such a motion results in the waiver of "any challenge on appeal to the sufficiency of the evidence absent a manifest miscarriage of justice." United States v. Baker, 40 F.3d 154, 160 (7th Cir. 1994). The government has not argued that Buchmeier waived this argument on appeal, however, instead choosing to argue that there was sufficient evidence presented at Buchmeier's trial to support his conviction. Thus, the government has waived Buchmeier's waiver. See id. at 160 (citing United States v. Moya-Gomez, 860 F.2d 706, 745-46 n.33 (7th Cir. 1988)).

At the conclusion of Buchmeier's trial, the district court instructed the jury that it could find Buchmeier guilty of any of the four counts charged in the indictment if it unanimously agreed that he possessed at least...