U.S. v. Haskins, 06-1438.

• Decision Date: 26 December 2007
• Docket Number: No. 06-1438.,06-1438.
• Citation: 511 F.3d 688
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwayne HASKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

511 F.3d 688

UNITED STATES of America, Plaintiff-Appellee, v. Dwayne HASKINS, Defendant-Appellant.

No. 06-1438.

United States Court of Appeals, Seventh Circuit.

Argued January 3, 2007.

Decided December 26, 2007.

Dean R. Lanter (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Lucy C. Lisiecki (argued), Stephen J. Landes, Wildman, Harrold, Allen & Dixon, Chicago, IL, for Defendant-Appellant.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge.

A wild night at Dena's Pub, a local nightclub in Gary, Indiana, ended prematurely when police arrived on the scene and confiscated drugs and firearms from Dena's patrons and employees. One employee was Dwayne Haskins, who worked as a security guard at Dena's. Police took Haskins' firearm but later returned it because he lawfully possessed it. Police also inadvertently gave Haskins a Beretta .40-caliber pistol. Not one to "look a gift horse in the mouth" (as he later put it), Haskins accepted the weapon, although it was not his. He later sold the Beretta to Darryl Eller, his friend and fellow security guard at Dena's. Unfortunately for Haskins, Eller was not only a convicted felon, he was also cooperating with federal agents. Consequently, Haskins was convicted of violating 18 U.S.C. § 922(d), which makes it a crime to sell a firearm to an individual known or reasonably believed to be a felon. Haskins appeals, and we affirm.

I.

Haskins became acquainted with Eller in 2000 at Dena's Pub. Both men provided security in some capacity at Dena's. In addition to their security positions at Dena's, both Haskins and Eller worked in various other jobs relating to law enforcement and security. Before resigning after an investigation into his conduct, Eller was employed as a police officer in Gary. Thereafter he worked in the private security industry. In addition to his night job at Dena's, Haskins worked during the day as a hall monitor at Gary Roosevelt High School.

Although Haskins had nothing in his past restricting his possession of firearms, Eller had several felony convictions. As relevant here, Eller was convicted in 1993 of being a felon-in-possession and sentenced to 27 months' imprisonment. This did not deter Eller from again possessing a firearm, an offense for which he was arrested in October 1999. This incident involved him impersonating a police officer by driving a Ford LTD with lights and siren while trailing a fire engine at a high rate of speed. According to Eller, because the circumstances surrounding his arrest were publicized, he told his coworkers at Dena's, including Haskins, about it, including the fact that he had a previous felony conviction.

On March 1, 2003, police arrived to a packed crowd at Dena's and began arresting individuals who possessed drugs and firearms. During the raid, police confiscated firearms from both Eller and Haskins. Specifically, they arrested Eller as a felon-in-possession and took from him a .40-caliber Beretta, Model 8040 Mini Cougar. Then, instead of taking Eller's Beretta into evidence, police inadvertently returned it to Haskins, in addition to his own firearm that they had previously confiscated.

Eller was taken into custody and admitted to being a felon. He later revealed to police that his firearm had been purchased for him by Dena's head of security, Arthur McClain, and that Haskins had also agreed to purchase a firearm for him. These revelations prompted agents to open investigations into Eller, McClain, and Haskins. Eller agreed to cooperate with the agents in the investigations into Haskins and McClain.

Police wired Eller, who made a number of phone calls to Haskins arranging to buy the weapon. In those calls, Haskins explained to Eller that he would sell him a Beretta Mini Cougar so that he (Haskins) would not have to go to the store for Eller. Their phone conversations culminated with a meeting in front of the high school where Haskins worked, at which time Eller paid Haskins $440 for the gun. After the sale, Eller reported surprisedly to agents that the weapon was the same firearm that police had confiscated from him in the raid on Dena's. Eller continued to work with the authorities after the sale and participated in several more recorded conversations discussing the possibility of Haskins buying him another gun, but it never happened.

After the sale, Haskins met with ATF agent Daniel Mitten. In his interview with Agent Mitten, Haskins admitted to selling the gun to Eller. When Agent Mitten asked Haskins whether he knew Eller was a felon, Haskins responded, "Aaah, yeah." He did, however, go on to say that although he knew Eller had been in some trouble, he did not know the specifics or whether Eller had been imprisoned.

At trial, Eller testified about his conversations with Haskins leading up to and after the sale. He explained that Haskins was aware of his felony conviction. The jury also heard the taped conversations between Haskins and Eller. Additionally, Agent Mitten recounted for the jury his conversation with Haskins where Haskins admitted selling Eller the weapon. The jury convicted Haskins of a single count of violating 18 U.S.C. § 922(d)(1) by selling a firearm knowing or having reasonable cause to believe that Eller was a felon.

II.

Haskins first argues that his conviction should be reversed because both the government and the district court constructively amended the indictment. Specifically, Haskins maintains that the government was obligated to prove that he knew, not only that Eller had been convicted of a felony, but that it was the particular felony referred to in the indictment. The indictment charged Haskins with selling a firearm to Eller "knowing and having reasonable cause to believe that [Eller] had previously been convicted of a crime punishable by imprisonment for a term exceeding one year, to wit: Possession of a Firearm by a Felon in 1993." At trial the government put on evidence that Haskins knew generally that Eller had a felony conviction. It did not, however, prove that Haskins knew specifically about the 1993 conviction. According to Haskins, the phrasing of the indictment obligated the government to prove that he knew about Eller's 1993 conviction. On a related note, he claims that the district court constructively amended the indictment by instructing the jury that he could be convicted based on evidence that he knew Eller had a felony conviction, without reference specifically to the 1993 conviction.

Constructive amendment of an indictment occurs when the government or the district court broadens the possible bases of conviction beyond those specified in the indictment. See United States v. Murphy, 406 F.3d 857, 860 (7th Cir.2005). Such broadening runs afoul of the Grand Jury Clause of the Fifth Amendment, which limits the available grounds for conviction to those specified in the indictment. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) ("[A] court cannot permit a defendant to be tried on charges that are not made in the indictment against him."); United States v. Jones, 418 F.3d 726, 729-30 (7th Cir.2005).

Haskins relies on this court's decision in United States v. Willoughby, 27 F.3d 263 (7th Cir.1994) for his argument that the wording in his indictment required the government to prove that he knew about Eller's 1993 conviction. In Willoughby, we reversed a conviction where the defendant's indictment for using a firearm in relation to a drug trafficking crime specified a particular drug trafficking crime. There the indictment charged the defendant with the use of a firearm "during and in relation to a drug trafficking crime, to wit: the distribution of cocaine." Id. at 266 (emphasis in original). At trial, the government proved a connection between the defendant's use of a firearm and the possession of cocaine, but not distribution, as specified in the indictment. Id. at 265. We concluded that by specifying distribution in the indictment, the government had narrowed the possible bases for conviction to the use of a gun connected to distribution. Thus, the cocaine possession proven at trial was insufficient. Id. at 267.

Haskins maintains that his situation is similar: by specifying Eller's 1993 felony conviction, the government obligated itself to prove at trial Haskins' knowledge of that specific conviction. We disagree. In Willoughby, the phrase "to wit: the distribution of cocaine" followed directly and modified the crime with which the defendant was charged: using a firearm in relation to a drug trafficking crime. Here, however, the alleged narrowing language comes on the heels of the description of Eller's felony, not the charge against Haskins. Haskins is charged with selling a firearm to Eller "knowing and having reasonable cause to believe that [Eller] had previously been convicted of a crime punishable by imprisonment for a term exceeding one year, to wit: Possession of a Firearm by a Felon in 1993." The statute itself requires only that the defendant know the firearm recipient is a felon. In Willoughby, however, the statute itself requires proof of a drug trafficking crime, and the indictment there specified a particular drug trafficking crime. Here, however, the phrase "to wit" modifies Eller's felony, not Haskins' knowledge of it. The indictment thus provides Haskins notice as to which felony of Eller's the government will rely on when proving that Haskins made the sale knowing that Eller had a conviction. It does not narrow the scope of Haskins' knowledge about Eller's felony conviction. As such, the inclusion of Eller's felony conviction in the indictment is simply "superfluous background information," United States v. Swanson, 394 F.3d 520, 525-26 (7th Cir.2005), that the government need not prove.

Haskins next claims that he is entitled to a new trial based on the district court's failure to instruct the jury as to the meaning of the phrase "reasonable...