U.S. v. Conley, 01-1587.

• Decision Date: 23 May 2002
• Docket Number: No. 01-1587.,01-1587.
• Citation: 291 F.3d 464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John D. CONLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

291 F.3d 464

UNITED STATES of America, Plaintiff-Appellee, v. John D. CONLEY, Defendant-Appellant.

No. 01-1587.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2001.

Decided May 23, 2002.

COPYRIGHT MATERIAL OMITTED

Philip P. Simon (argued), Office of the U.S. Atty., Hammond, IN, for Plaintiff-Appellee.

James T. Mueller (argued), Holland & Knight, Chicago, IL, for Defendant-Appellant.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

John D. "Spider" Conley is a twice-convicted felon with a self-destructive appetite for guns and motorcycles. Conley's first felony conviction was in 1982, after he and his fellow members of the Satan Calvary bikers gang fired several gun shots at a police officer who was attempting to arrest them for disorderly conduct. Conley was incarcerated for thirteen years for attempted murder and was barred by federal law from possessing any type of firearm after his release from prison. Nevertheless, not long after his parole in December 1995, Conley joined an Indiana chapter of the Invaders motorcycle club, acquired at least six firearms — including two rifles, two shotguns, a pistol and a revolver — and stored them inside his home and a shed on his property in Crown Point, Ind. The possession of these weapons formed the basis of a two-count superseding federal indictment charging Conley with violating the Armed Career Criminal Act, 18 U.S.C. § 922(g)(1). Conley pled not guilty, the case proceeded to trial, and a jury found Conley guilty of both charges. The district court sentenced Conley to 108 months in prison followed by a three-year term of supervised release, with the sentences and subsequent periods of supervision to run concurrently with each other. The court also ordered Conley to pay a special assessment of $100 on each of the counts, for a total of $200. We affirm.

I.

The superseding indictment in this case specifically charged Conley with: (1) possession of a Mossberg shotgun on July 7, 1999; and (2) possession of the same Mossberg shotgun plus several other firearms on January 27, 2000.¹ In order to prove both counts of the indictment, the Government presented evidence establishing that Conley possessed the Mossberg on two separate occasions, i.e., June 7, 1999 and January 27, 2000, and that his possession of the weapon was completely interrupted at some point between June 1999 and January 2000.

The Government proved that Conley's possession of the shotgun was interrupted by offering proof that the weapon was in the sole possession of another man, Dwight "Lightbulb" Sheldon, during the late summer and early fall of 1999. Sheldon, who is one of Conley's friends and a fellow member of the Invaders, testified that he was the sole owner of the shotgun, having purchased it for $100 from a bartender in Kentucky in 1998. Sheldon subsequently traveled to Crown Point, Ind., in the spring of 1999 and moved into a trailer located in Conley's backyard. Sheldon testified at trial that he usually kept the shotgun hidden behind the front seat of his pickup truck or in a toolbox inside the trailer. Under cross-examination, however, Sheldon admitted that he was frequently under the influence of drugs and alcohol. In view of this fact, Sheldon conceded that he may have given the weapon to Conley in early July 1999 and asked Conley to return it sometime thereafter. Indeed, several witnesses confirmed that Conley fired the Mossberg in order to scare away a group of teenagers, who were present on Conley's property July 7, 1999 in order to collect a debt owed them by a friend of Conley's son, who was staying at Conley's home that evening. Sheldon reacquired the shotgun later in the summer and remained in possession of the weapon until the fall, when he abandoned the firearm somewhere on Conley's property and moved out of state.

A number of federal agents testified that they discovered the shotgun inside Conley's padlocked storage shed when they searched his property pursuant to a warrant executed the afternoon of January 27, 2000. On that occasion, Conley gave a key to the agents and told them that his wife and children had been ordered to keep out of the structure. He admitted that he kept some of his most valuable possessions inside the shed, including photographs of himself riding his beloved Harley-Davidson motorcycle across the vast midwestern prairie. The agents further uncovered several additional photographs depicting Conley holding as many as six firearms, including a Thompson machine gun.

The preceding evidence, which we presume was accepted and believed by the jury, served to convict Conley of obtaining possession of the Mossberg firearm on or around the date charged in Count I of the indictment (July 7, 1999) then completely losing such control before reacquiring it by the date charged in Count II of the indictment (January 27, 2000).² Conley now appeals, arguing: (1) that the indictment was multiplicitous; and (2) that the trial court erred by admitting certain photographs that Conley feels are unfairly prejudicial.³

II.

Conley's first challenge is that the two-count indictment under which he was convicted is multiplicitous because it charged him with a single course of conduct, rather than two separate offenses. Conley argues that the indictment charged and convicted him on two counts of possession of the Mossberg shotgun without alleging that his possession was interrupted, as is required by the statute. Based on this argument, Conley asks us to vacate one of his convictions as violating the Double Jeopardy Clause of the Fifth Amendment. (Br. at 12.) We decline to do so, because we are convinced that the indictment adequately identified the nature of the separate charges facing Conley so as to comport with the requirements of the Double Jeopardy Clause.

A.

1.

At the outset, we reject Conley's claim that he raised the issue of multiplicity in the district court, for upon review of the record we are convinced that he failed to argue that the indictment was multiplicitous but instead raised only the separate and distinct issue of whether the indictment was duplicative. Thus we review Conley's present challenge for plain error.⁴

The sole support for Conley's claim that he preserved the multiplicity argument lies in the final sentence in a 9-paragraph affidavit in support of his "Motion For Election Of Separate Trials," wherein Conley's attorney informed the magistrate judge assigned to hear pre-trial matters that: "Count Two is duplicative, and not a separate count at all. It does not allege a separate distinct firearm possessed by the defendant, but if proved, continued evidence of possession of one of the six firearms alleged in Count One."

In order to preserve an issue for appellate review, "a party must make a timely and specific objection, in order that he or she might alert the court and the opposing party as to the specific grounds for the objection during trial." United States v. Harris, 271 F.3d 690, 700 (7th Cir.2001) (emphasis in original). We hold that Conley's passing reference to duplicity was insufficient to challenge the indictment on the separate ground of multiplicity, for Conley failed to cite any case law or elaborate in any detail upon why he felt the indictment improperly charged him with the same crime in two separate counts. Cf. United States v. Petitjean, 883 F.2d 1341, 1344 (7th Cir.1989) (holding that objections to multiplicity are insufficient to preserve subsequent claim of duplicity). But see 24 MOORE'S FEDERAL PRACTICE § 608.04[3] at 22 (2000) (noting that "multiplicity is sometimes referred to as duplicity"). Notwithstanding the above-quoted statement in the affidavit, each of the affidavit's remaining eight paragraphs argued that Conley was prejudiced by the joinder of the indictment in two counts. Conley's trial counsel asked for separate trials on each count of the indictment, FED. R.CRIM.P. 14, because his client wished to testify on Count II but invoke his Fifth Amendment rights on Count I. When the Government filed its brief in opposition to Conley's Rule 14 motion, it argued that the "motion for severance should be denied." The magistrate judge similarly focused on the issue of severance and found that Conley was not entitled to separate trials because he failed to indicate how he might possibly be prejudiced if he was to testify on Count II of the indictment but declined to testify on Count I. (Doc. No. 44.) Because Conley never informed the judge that he was raising the issue of multiplicity, rather than duplicity or prejudicial joinder, we conclude that Conley waived any argument about the allegedly multiplicitous nature of the indictment, and we shall review for plain error alone. See United States v. Wisch, 275 F.3d 620, 624-26 (7th Cir.2001).

It is well-established that the plain error standard allows appellate courts to correct only particularly egregious errors for the purpose of preventing a miscarriage of justice. Lieberman v. Washington, 128 F.3d 1085, 1095 (7th Cir. 1997). The error must have affected the substantial rights of the parties, thus calling into question the fairness, integrity, or public reputation of the judicial process. United States v. Montenegro, 231 F.3d 389, 393 (7th Cir.2000). Put another way, under the plain error doctrine, we will reverse only where the trial court's error is "clear, prejudicial, and affects substantial rights." United States v. Carrillo, 269 F.3d 761, 768 (7th Cir.2001). However, even if there has been plain error, "we have the power to correct the error but are not required to do so." United States v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998).

2.

As noted previously, Conley argues that the indictment violates his rights against multiple punishments for the same crime. The imposition of more than one conviction for the same criminal act violates the Double Jeopardy Clause of the Fifth Amendment. Schiro v. Farley, 510 U.S....