United States of America v. John D. Conley

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1587
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN D. CONLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00-CR-17--James T. Moody, Judge.
Argued NOVEMBER 29, 2001--Decided May 23, 2002
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 fourteen
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 supserseding federal
indictment charging Conley with violating
the Armed Career Criminal Act, 18 U.S.C.
sec. 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

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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.

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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.

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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 duplicitive.
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 sec. 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

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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. United States v.
Lieberman, 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. Shiro v. Farley, 510
U.S. 222, 229 (1994); United States v.
Colvin, 276 F.3d 945, 948 (7th Cir.
2002); United States v. Handford, 39 F.3d
731, 735 (7th Cir. 1994). In this case,

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the Government concedes that Congress
intended that persons convicted of
violating 18 U.S.C. sec. 922(g)(1) should
be punished only for possessing weapons
in separate courses of conduct. Thus,
under circumstances similar to this case,
a felon may be charged and convicted of
two counts of possessing the same firearm
only if: (1) he possesses the weapon; (2)
he is aware that his possession of the
weapon has been interrupted; and (3) he
thereafter reacquires possession of the
weapon himself. United States v. Rivera,
77 F.3d 1348 (11th Cir. 1996); United
States v. Horodner, 993 F.2d 191 (9th
Cir. 1993); United States v. Jones, 533
F.2d 1387 (6th Cir. 1976); see also
United States v. Capozzi, 73 F. Supp.2d
75, 82 (D. Mass. 1999). Put another way,
the Government may charge and convict an
individual of multiple violations of sec.
922(g)(1) only if "it can produce
evidence demonstrating that the firearms
were stored or acquired separately and at
different times or places." United States
v. Buchmeier, 255 F.3d 415, 423 (7th Cir.
2001); see also Horodner, 993 F.2d at 193
("a new possession, separately
chargeable, could begin if possession was
interrupted").
In asking whether an indictment is
multiplicative, we typically ask "whether
each count requires proof of a fact which
the other does not. If one element is
required to prove the offense in one
count which is not required to prove the
offense in the second count, there is no
multiplicity." United States v. Briscoe,
896 F.2d 1476, 1522 (7th Cir.
1990)(quoting United States v. Marquardt,
786 F.2d 771, 778 (7th Cir. 1986)
(internal citations and quotations
omitted)). The two separate counts of the
indictment before us explicitly alleged
that Conley possessed the Mossberg
shotgun during two different periods of
time--July 7, 1999 and January 27, 2000.
In order to prove Count I, the Government
had to establish possession on July 7 but
not January 27; conversely, to prove
Count II, the Government had to establish
possession on January 27 but not July 7.
Because the Government was required to
convince the jury beyond a reasonable
doubt of Conley’s possession of the
shotgun on two separate dates, as two
distinct courses of conduct, the
Government established the elements of
two separate crimes. Thus, the indictment

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is not multiplicitous. See United States
v. Snyder, 189 F.3d 640, 647 (7th Cir.
1999) ("The Double Jeopardy Clause is not
implicated when multiple separate
violations of the same provision are
charged in multiple counts."); 1A Wright,
Federal Practice & Procedure sec. 142 (1999).
Nonetheless, at oral argument, defense
counsel insisted that the indictment was
insufficient because it failed to
expressly state that Conley’s possession
of the shotgun was interrupted at some
point between July 1999 and January 2000.
Conley, however, has failed to cite any
cases in support of his claim that an
indictment listing successive dates of
unlawful possession of a weapon must
expressly state that the two dates have
been interrupted by an intervening lack
of possession. We reject Conley’s
argument, for on numerous occasions we
have sustained convictions that were
obtained on multi-count indictments,
charging separate courses of unlawful
conduct, despite the fact that the
indictments failed to allege that each
course was interrupted. See, e.g., United
States v. Stott, 245 F.3d 890, 896 n.2
(7th Cir. 2001) (interstate travel with
intent to distribute); Marquardt, 786
F.2d at 774 (bank fraud).
The cardinal rule for reading multi-
count indictments is that each count must
stand on its own two feet; "[e]ach count
. . . is regarded as if it was a separate
indictment." United States v. Powell, 469
U.S. 57, 62 (1984) (quoting Dunn v.
United States, 284 U.S. 390, 393 (1932));
United States v. Sims, 144 F.3d 1082,
1085 (7th Cir. 1998). Thus, when an
indictment charges two violations of 18
U.S.C. sec. 922(g)(1), on two specific
dates, it follows that the defendant has
been notified of the Government’s intent
to prosecute him for unlawfully
possessing a weapon in two separate
courses of conduct. Furthermore, in this
case, the interruption of possession was
an element of neither of the offenses
charged in the indictment. Conley could
have been convicted on either one of the
charges without any proof of
interruption, because if Conley possessed
the weapon in a continuous course of
conduct beginning in July 1999 and
continuing through January 2000, he would
have been guilty of only one crime.
Rivera, 77 F.3d at 1351; Horodner, 993

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F.2d at 193. Therefore, although
interruption was another fact that the
Government was required to prove in order
to obtain successful convictions on more
than one count, it was not necessary to
allege this fact in any of the counts in
the indictment itself. Accordingly, we
reject Conley’s claim that his
convictions were tainted by a
multiplicitous indictment. See, e.g.,
United States v. Smith, 230 F.3d 300,
305-06 & n.3 (7th Cir. 2000); United
States v. Canino, 949 F.2d 928, 949 (7th
Cir. 1992).
B.
We next consider whether the trial court
erred in admitting two photographs found
in Conley’s shed, which depicted him
holding several weapons other than the
Mossberg shotgun that was named in the
indictment. The photographs were admitted
by the Government during its rebuttal,
after numerous defense witnesses
testified that the Mossberg shotgun
belonged to Conley’s wife and friends and
that Conley studiously avoided handling
firearms or other weapons around his
home. The first photograph depicted
Conley with a smile on his face and six
firearms strapped to his waist, arms, and
legs. The second photograph showed Conley
with a menacing frown, staring straight
into the camera and brandishing a
Thompson machine gun. Conley argues that
the photographs should have been
excluded, for their probative value was
slight and they tended to portray him in
a prejudicial light as a "gun-toting
lawbreaker." The Government responds that
the photos helped prove that Conley had
"the power and intention . . . to
exercise dominion and control" over the
weapons on or about the dates charged in
the indictment. United States v. Hunte,
196 F.3d 687, 692 (7th Cir. 1999). We
agree with the Government’s argument that
the photos were relevant to the issue of
dominion and control, and therefore we
perceive no abuse of discretion with the
trial judge’s decision to admit them into
the record of this case.
1.
We review the court’s evidentiary
rulings for an abuse of discretion.
United States v. Hunt, 272 F.3d 488, 494
(7th Cir. 2001); United States v.

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Dominguez, 992 F.2d 678, 680-81 (7th Cir.
1993). "The district court’s
determination of the admissibility of
evidence is treated with great deference
because of the trial judge’s firsthand
exposure to the witnesses and the
evidence as a whole, and because of his
familiarity with the case and ability to
gauge the likely impact of the evidence
in the context of the entire
proceedings." Okai v. Verfuth, 275 F.3d
606, 610 (7th Cir. 2001). "Because of the
special deference we give to the trial
judge’s evidentiary rulings, we will not
reverse unless the record contains no
evidence on which [the trial judge]
rationally could have based [his]
decision." Id.
2.
Evidence of a defendant’s prior bad acts
is inadmissible under Rule 404(b) of the
Federal Rules of Evidence if it is
offered to demonstrate that the
defendant’s conduct on or about the dates
alleged in the indictment conformed to
his previous behavior when he was placed
in similar situations. Such evidence is
admissible only if it is relevant to an
understanding of the defendant’s "motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident" in committing the
offenses charged. Fed. R. Evid. 404(b).
District courts should employ a four-part
test when considering whether to admit
evidence of this nature. As we stated in
United States v. Moore:
The evidence of the other act must: (1)
be directed toward establishing a matter
in issue other than the defendant’s
propensity to commit the crime charged;
(2) show that the other act is similar
enough and close enough in time to be
relevant to the matter in issue; (3) be
sufficient to support a jury finding that
the defendant committed the similar act;
and (4) have a probative value that is
not substantially outweighed by the
danger of unfair prejudice.
115 F.3d 1348, 1354 (7th Cir. 1997).
Conley argues that the two pictures in
dispute both fail the second and fourth
prongs of the Moore test. With respect to
the second prong, Conley claims that the
guns were used as props for staged

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photographs, an act which differs
significantly from the Government’s claim
that Conley exercised constructive
possession over six functioning firearms
in the Conley residence. Conley further
contends that the pictures are irrelevant
because they demonstrate nothing more
than the fact that he momentarily
possessed the weapons. As for the fourth
prong, Conley states that the probative
value of the photographs was
substantially outweighed by the potential
that the jury would conclude that he was
a "gun-toting lawbreaker" and,
thereafter, convict him based on
irrational prejudice rather than the
evidence presented at trial.
We disagree with each of Conley’s
arguments. Minor or insubstantial
differences in the type of conduct or
charge at issue fails to establish that
the conduct is dissimilar. United States
v. Long, 86 F.3d 81, 84 (7th Cir. 1995).
Guns do not belong in the hands of
felons. Our case law makes clear that an
individual convicted of a felony violates
sec. 922(g)(1) whenever he is in
possession and physical control of a
weapon for more than an "academic" period
of time, United States v. Lane, 267 F.3d
715, 718 (7th Cir. 2001), even if he
lacks the specific intent to use the
weapon for criminal purposes. Id. at 720.
In addition, we have repeatedly held that
evidence is unfairly prejudicial only if
it will "induce the jury to decide the
case on an improper basis, commonly an
emotional one, rather than on the
evidence presented." United States v.
Pulido, 69 F.3d 192, 201 (7th Cir. 1995).
In this case, because the photos showed
Conley in actual possession of a bevy of
weapons, we are convinced that the
evidence was relevant to the issue of
whether Conley remained in constructive
possession of other similar weapons while
they remained in his home or on his
property. The determination of the proper
weight of such evidence was left to the
jury’s sound discretion, after hearing
the court’s instructions regarding the
applicable law and evaluating the
arguments of both the Government and the
defendant at trial. Given the great
degree of deference afforded the judge’s
evidentiary determinations--and the
judge’s caution in admitting the photos
only in rebuttal to the testimony of ten

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defense witnesses--we find no abuse of
discretion with the court’s careful and
well-reasoned conclusion that any
prejudicial effect was outweighed by the
probative value of the photographs in
demonstrating Conley’s intent to exercise
control over firearms listed in the
indictment.
The judgment of the district court is
AFFIRMED.
FOOTNOTES
/1 The superseding indictment reads as follows:
COUNT ONE: On or about July 7, 1999, in the
Northern District of Indiana, the defendant, JOHN
CONLEY, having been convicted of attempted murder
and robbery in Case No. 4-CR-128881546 on or
about April 6, 1982 in Lake County, Ind., a crime
which is punishable by a term of imprisonment
exceeding one year, did knowingly possess in or
affecting commerce a firearm, specifically, a
Mossberg Model 500A 12-gauge shotgun with an
obliterated serial number--in violation of 18
U.S.C. sec. 922(g)(1).
COUNT TWO: On or about January 27, 2000, in the
Northern District of Indiana, the defendant, JOHN
CONLEY, having been convicted of attempted murder
and robbery in Case No. 4-CR-128881546 on or
about April 6, 1982 in Lake County, Ind., a crime
which is punishable by a term of imprisonment
exceeding one year, did knowingly possess in or
affecting commerce, the following firearms: (1)
a Mossberg Model 500A 12-gauge shotgun, with an
obliterated serial number . . . in violation of
18 U.S.C. sec. 922(g)(1).
/2 At oral argument, defense counsel suggested in
passing that, as a matter of law, Conley remained
in continuous, constructive possession over the
shotgun because it remained on his property
without interruption throughout the time period
charged in the separate counts of the indictment.
Such a position is inconsistent with our prior
holdings that a defendant’s mere presence within
a dwelling is insufficient evidence, standing
alone, to establish constructive possession of
contraband within the dwelling. See, e.g., United
States v. Quilling, 261 F.3d 707, 712 (7th Cir.
2001) (citing United States v. Herrera, 757 F.2d
144, 150 (7th Cir. 1985)).
/3 At oral argument, we pointed out that Conley’s
trial counsel failed to request a jury instruc-
tion that Conley could be found guilty of two
counts of possessing the Mossberg shotgun only if
the Government presented evidence that Conley was

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aware he lost and subsequently reacquired posses-
sion of the weapon some time between the dates
listed in each count of the indictment. Although
Conley attacked the jury instruction during oral
argument, we decline to consider his objections
because they were neither presented to the dis-
trict court nor contained in any of his briefs on
appeal. See, e.g., Holman v. State, 211 F.3d 399,
406 (7th Cir. 2000) ("Moreover, the Holmans did
not make this argument in their initial appellate
brief . . . and thus it is waived."); IUOE Local
150 v. Rabine, 161 F.3d 427, 432 (7th Cir. 1998)
(refusing to consider argument raised at oral
argument because it was not raised in briefs);
Kasper v. St. Mary of Nazareth Hosp., 135 F.3d
1170, 1174 (7th Cir. 1998) ("the alleged error on
which the hospital’s appellate counsel laid the
heaviest weight at oral argument does not appear
in the hospital’s opening brief . . . and is
therefore waived."); Charles v. Daley, 846 F.2d
1057, 1059 n.1 (7th Cir. 1988) ("a party is
barred procedurally from raising for the first
time on appeal an argument it failed to include
in its Opening Brief").
/4 Multiplicity is the charging of a single offense
in separate counts of an indictment. United
States v. Allender, 62 F.3d 909, 912 (7th Cir.
1995). Duplicity, by contrast, is the joining of
two or more separate offenses in a single count
of an indictment. United States v. Smith, 26 F.3d
739, 753 (7th Cir. 1993).

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