U.S. v. Jones

• Decision Date: 09 June 2004
• Docket Number: No. 03-2406.,03-2406.
• Citation: 371 F.3d 363
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dirk D. JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 363

371 F.3d 363

UNITED STATES of America, Plaintiff-Appellee, v. Dirk D. JONES, Defendant-Appellant.

No. 03-2406.

United States Court of Appeals, Seventh Circuit.

Argued December 17, 2003.

Decided June 9, 2004.

Ruth Hennage, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

John Maksimovich, Highland, IN, for Defendant-Appellant.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Dirk Jones was charged in two counts of a three-count indictment arising from the purchase and attempted resale of a firearm. Count One charged him with a conspiracy having two objects: to make a false statement to a federally licensed firearms dealer, and to transfer a firearm to a resident of another state. 18 U.S.C. §§ 371, 922(a)(6), 922(a)(5). Count Three charged him with possession of a firearm by a felon. Id. § 922(g)(1). A jury found him guilty of both counts, and the district court sentenced him consecutively to 60 months' imprisonment on Count One and three months' imprisonment on Count Three. At the close of the government's case and again at the close of all evidence, Jones had moved for acquittal on both counts under Fed.R.Crim.P. 29. Jones now appeals the denial of that motion only as to Count One, arguing that the government did not present sufficient evidence to support the conspiracy conviction. Because the government failed to meet its burden, we reverse Jones's conviction on Count One.

I. BACKGROUND

Early on the morning of June 20, 2001, Dennis Rock entered the Westforth Sports Shop in Gary, Indiana, with an unidentified individual and made a $200 down payment on a Norinco SKS semi-automatic assault rifle. Rock was a frequent customer at Westforth's. Between September 2000 and June 2001, Rock had purchased at least ten firearms from Westforth's, and agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF) had asked the store to alert them if Rock made any more purchases. After Rock placed the down payment on the rifle and had left the store, the sales clerk called the ATF to report the transaction. ATF agents arrived at the store and hid in a back room. The government made no effort at trial to establish the identity of Rock's companion, but nevertheless argued in closing that Jones was the second man in the store.

Rock returned to Westforth's later that morning, and Jones admits that this time he was with Rock. Store surveillance cameras recorded the entire time the two men were at Westforth's. Rock and Jones spent at least half an hour in the store because the ATF had instructed the sales clerk to delay completing the transaction until additional agents could arrive. During this time, the store surveillance video showed that Rock filled out a federally required Form 4473. The video also showed that during this period Jones handled the SKS rifle briefly, spoke with Rock and the sales clerk, smoked a cigarette, looked at the display cases, and held a pistol from one of the cases for a few moments. There was no testimony about what Jones said while in the store. Once the sale was completed, the sales clerk placed the rifle in a box and Jones carried the box to Rock's car and placed it in the trunk.

The two men then drove away, and ATF agents followed. Rock drove around Gary with Jones in the car for approximately ninety minutes, making stops at a convenience store, an apartment building, and a restaurant. Rock then entered Interstate 90 and drove into Chicago, stopping in front of a Chicago Housing Authority building at 2920 South State Street. While Rock remained in the car, Jones got out and walked into the building. Approximately a minute later Rock exited his car and opened the trunk. The ATF agents testified that they believed Rock was trying to remove the rifle from the trunk, so they approached the car and arrested him. Chicago police officers also arrived at this point. ATF Agent Mickey French testified that approximately three to five minutes after Rock had parked his car, Jones and seven or eight other people exited the building. The agents approached and detained Jones, but did not question the others. Chicago police officers took Jones to a police station for questioning, but later released him and allowed him to leave in Rock's vehicle. Seventeen months later, in November 2002, Jones was indicted along with Rock. But Rock became a fugitive, so Jones was tried alone. Rock was subsequently located, and he pleaded guilty to Count One in August 2003.

The government and the defense offer widely different theories about Jones's actions on that day. The government's theory of the case was that Rock had an ongoing relationship with a man in Chicago named "Vino" or "Vince". Agent Kevin O'Malley read into evidence a redacted written confession Rock had given to the police on the day he was arrested, in which Rock describes his dealings with Vino and says that he was purchasing the SKS rifle for Vino. Agent Cynthia Carroll testified that the ATF had been investigating Rock because he had bought eleven firearms from Westforth's. Agent Carroll testified that the ATF suspected Rock of making "straw purchases" — meaning that Rock (who had a gun permit and could legally buy firearms) would purchase a gun from a store and then resell it in Chicago, possibly with Vino's assistance. The government presented no evidence that Jones was involved in any other transactions, but argued in its closing that Jones was helping Rock to carry out one of these straw purchases on June 20, and that Jones entered the housing project to find a buyer for the rifle. The version of Rock's confession read to the jury made no mention of Jones.

The defense argued instead that Jones had nothing to do with the purchase or sale of the rifle. Jones testified that he is a drug addict and that on the morning in question he wanted to go to Chicago to purchase heroin. Indeed, Jones has two previous convictions for drug offenses, and at trial he rolled up his sleeve to show the jury what are apparently extensive needle marks on his arm. He testified that he was standing on a street corner in Gary where addicts regularly go to look for rides into Chicago to buy drugs, when Rock — who was a casual acquaintance — drove up and offered to take him. According to Jones, Rock said he needed to make a stop before heading to Chicago and then went to Westforth's. Jones said he was experiencing withdrawal and wanted to get to Chicago quickly, so he went into the store to try to keep Rock from wasting time — an explanation the government disputed in its closing. When they arrived at 2920 South State Street, according to Jones, he went inside and bought heroin that he snorted while still inside. Jones also testified that this building was the location where he usually bought his heroin.

II. ANALYSIS

A. Standard of Review

Jones argues that the district court erred in denying his motions for acquittal on Count One. We review the denial of those motions de novo. United States v. Quilling, 261 F.3d 707, 712 (7th Cir.2001). We recognize that we may not reweigh the evidence or the credibility of witnesses, and must view the evidence in the light most favorable to the government and draw all reasonable inferences in its favor. United States v. Senffner, 280 F.3d 755, 760 (7th Cir.2002). The question we must ask is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); accord United States v. Curtis, 324 F.3d 501, 505 (7th Cir.2003).

B. Sufficiency of the Evidence

In order to establish a conspiracy under § 371, the government must prove: (1) an agreement to commit an illegal act; (2) the defendant's knowing and intentional participation in the agreement; and (3) an overt act committed in furtherance of the agreement. United States v. Gee, 226 F.3d 885, 893 (7th Cir.2000). The government may rely on circumstantial evidence to establish both the existence of a conspiracy and the defendant's involvement. United States v. Irorere, 228 F.3d 816, 823 (7th Cir.2000). But although a jury may infer facts from other facts derived by inference, "`each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.'" United States v. Peters, 277 F.3d 963, 967 (7th Cir.2002) (quoting Piaskowski v. Bett, 256 F.3d 687, 693 (7th Cir.2001)); accord United States v. Cruz, 285 F.3d 692, 699 (8th Cir.2002); United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir.2000); United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir.1994).

In its brief, the government lists a sequence of events it says the jury could have found without drawing any inferences. The events are: Jones talked with Rock on the morning of June 20, 2001, and entered his car; Rock entered Westforth's with another man and made a $200 deposit on an SKS rifle; Jones and Rock later entered Westforth's together; Rock paid for the rifle and filled out the necessary paperwork, and Jones placed the rifle in Rock's trunk; three hours later Rock and Jones arrived at 2920 South State Street, and Jones entered the building; approximately a minute later Rock opened his trunk and started to remove the rifle; Rock was detained; and Jones exited the building by a side door with seven or eight men. The government says this sequence "amply supports" the jury's finding that Jones participated in the conspiracy.

The government overstates the strength of its evidence. This sequence of events establishes at most that Jones was present while Rock engaged in what Rock admitted was an illegal straw purchase of a firearm. But "mere presence" while a crime is being committed is insufficient to show that a defendant acted to further a conspiracy. Piaskowski, 256 F.3d at 692; United States v. Navarrete, 125 F.3d 559, 562 (7th Cir.1997); United States v. Larkins, 83 F.3d 162, 167 (7th Cir.1996); United...