U.S. v. Dillon

• Decision Date: 24 July 1998
• Docket Number: No. 96-3433,96-3433
• Citation: 150 F.3d 754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth P. DILLON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 754

150 F.3d 754

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth P. DILLON, Defendant-Appellant.

No. 96-3433.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1998.

Decided July 24, 1998.

Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for Plaintiff-Appellee.

Lori S. Klingman (argued), Wilmette, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A jury convicted Kenneth P. Dillon of knowingly making false statements to licensed firearms dealers in connection with the purchase of firearms and of wilfully receiving firearms while under state court indictment for a crime punishable by more than one year in prison. Dillon raises two challenges to his conviction: First, he argues that the district court erred in concluding that his confession was voluntary and admitting it into evidence. Second, he claims that the government produced insufficient evidence to convict him. Because we find no error in the proceedings below, we affirm.

I. History

Before a purchaser may remove a gun from a store, the government requires that person to fill out Treasury Form 4473 for the transaction. The purchaser must complete the top portion (section A). This section consists of a series of questions, including whether or not the purchaser is under indictment or information for a crime punishable by imprisonment for a term exceeding one year. The purchaser must answer "no" to all of the questions in order to remove the gun from the store.

Between April 1993 and March 1994, Dillon purchased approximately twenty handguns and pistols from two pawn shops in the Calumet region of northwest Indiana, Cash-Indiana, Inc. and Jack's Loan Office. The problem with these purchases is the fact that on September 24, 1993 Dillon was charged with theft. Theft in Indiana is a Class D felony which carries with it a sentence of half a year to three years in prison and the possibility of a $10,000 fine. Yet, Dillon answered "no" to the Form 4483 question on whether he was under indictment.

On April 21, 1995, a federal grand jury returned an eight count indictment against Dillon. Counts one through four alleged that he knowingly made false and fictitious written statements to a licensed firearms dealer while purchasing a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2); counts five through eight charged that he wilfully received firearms which had been shipped in interstate commerce while under indictment for a crime punishable by a term of imprisonment of more than one year in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D).

On May 22, 1995, Bureau of Alcohol, Tobacco, and Firearms ("ATF") agents arrested Dillon in Merrillville, Indiana at the Olive Garden Restaurant where he worked. As ATF agent Roger Crafton later explained, agents transported Dillon to the ATF office in Merrillville. After changing vehicles, the agents escorted Dillon to the United States Marshal's office in Hammond for processing. The processing occurred at approximately 3:30 p.m. The agents then took Dillon to Magistrate Judge Rodovich for an initial appearance. There, the United States Attorney read Dillon the charges and possible penalties pending against him. The magistrate judge informed Dillon of his rights and the fact that he did not have to talk with the agents and then released Dillon on a $20,000 unsecured bond.

Though he was free to go, Dillon requested a ride from Hammond back to Merrillville, a distance of approximately 25 miles. Agent Crafton obliged and drove him to ATF's Merrillville office. During the trip, Dillon asked if there was anything he could do to help himself. Agent Crafton told him that he had the option of becoming an informant for the government and assisting them in investigating criminal activity in the area. At the office, Agent Crafton warned Dillon that any statements he might make could be incriminating and gave him an Advice of Rights Form which was read aloud to Dillon as he examined the form. Dillon signed the form, made incriminating comments, and prepared a written statement in the form of an affidavit. In these statements, he admitted to his gun trafficking activities. He also specifically stated that he entered Cash-Indiana on December 30, 1993 to purchase a gun for a drug dealer he knew. Dillon read and signed a Confidential Source Agreement. According to Agent Crafton, no one threatened Dillon.

After an eight month delay, ¹ Dillon recalled the events much differently. In a hearing to determine whether his statement was voluntary, he testified that the agents took him to the Merrillville field office after he was arrested. There, according to Dillon, agents allegedly interrogated him for two hours and threatened to shoot him if he did not cooperate. Dillon also testified that no one read him his rights, that ATF agents forced him to sign a cooperation agreement, and that they forced him to produce a handwritten statement or else suffer physical harm. Although he admitted that he wrote the statement, Dillon claimed that the agents dictated his statement to him line by line. He also asserted that the agents promised to pay him money if he became an informant.

During his direct examination, Dillon did not mention his appearance before the magistrate judge in Hammond. On cross-examination, he remembered that event but estimated that it happened around 9:00 p.m. Dillon did not recall whether the magistrate informed him of his rights, and he did not remember anyone telling him that he was free to leave at the end of that proceeding. Dillon then stated that the agents returned him to the Olive Garden at approximately 8:00 p.m. that evening.

After reviewing the exhibits and considering the credibility of Dillon and Agent Crafton, the district court found Dillon's testimony to be inconsistent and not credible and the testimony of the agent to be credible. Based on these findings, the court determined that Dillon made his statements knowingly and voluntarily.

The case proceeded to trial before a jury in March 1996. The government introduced Dillon's written statement as evidence and called to testify each of the sales clerks with whom Dillon interacted in making the various gun purchases. Its first witness was Catherine Batz, the owner of Cash-Indiana. Batz testified that all of her sales clerks must participate in a training session to learn the proper procedure for selling a firearm. This training includes a requirement that the sales clerks read an ATF manual on the subject. Batz stated that Cash-Indiana requires the purchaser to complete Treasury Form 4473 unless the purchaser shows that he or she cannot read or write. Dillon purchased 15 handguns from Cash-Indiana, Inc. and completed Form 4473 for each transaction.

Batz also testified about a transaction she handled for Dillon on April 16, 1993 in which he bought a semi-automatic pistol. She stated that Dillon completed the top portion of Form 4473, answering "no" to all of the questions. She also testified that, based on her observations of Dillon, she had no reason to believe that he did not understand the questions on any of the forms.

Michael Penix, a sales clerk at Cash-Indiana, also assisted Dillon in a number of the transactions. He testified that he sold Dillon weapons on December 30, 1993, January 4, 1994, and March 17, 1994. In each of these transactions, Dillon completed the top portion of Form 4473 and did not ask any questions about how to fill out the form. Penix also stated that he followed the same procedures for every purchase even though he knew Dillon from previous transactions. Finally, he testified that he had no reason to believe that Dillon did not understand the questions on the form or that Dillon had a learning disability or that Dillon did not answer the questions truthfully.

Likewise, Sherman Thomas, a sales manager at Jack's Loan Office, assisted Dillon in purchasing a gun. According to Thomas, Jack's follows the same procedures as Cash-Indiana when selling a firearm, including the completion of Form 4473. Thomas testified that he handled a sale to Dillon on December 31, 1993, in which Dillon completed section A of Form 4473. Thomas stated that Dillon did not ask any questions about the form and never gave him any indication that he did not understand the questions on the form.

Dillon then took the stand. He admitted that he purchased the various guns as alleged in the indictment. His defense was that he cannot read and, therefore, was unaware of the contents of the forms he signed or completed. Although he graduated from high school and attended adult reading classes at a local community college for additional reading instruction, Dillon testified that he probably read at a third grade level. He then repeatedly denied completing section A of Treasury Form 4473 even though he did sign that form every time he purchased a firearm. According to Dillon, after inquiring about a gun purchase, he would show his firearm license and identification. The sales clerk would ask him whether he had ever been convicted of a felony. He would respond "no," and the clerk would then complete Form 4473. The clerk would ask that he sign the form before he left with the gun.

The jury convicted Dillon on all eight counts. On August 16, 1996, the district court sentenced him to twenty-one months' imprisonment on each count with the sentences to run concurrently and three years' supervised release.

II. Analysis

Dillon raises two issues on appeal. First, he claims that we must overturn his convictions because ATF agents coerced him into giving an involuntary confession. Second, he challenges whether the government produced sufficient evidence to support his convictions.

A.

Dillon claims that ATF agents used threats of physical coercion and a promise of leniency to induce him to confess involuntarily. A trial court may admit a...