United States of America v. Alan L. Klebig

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2589
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALAN L. KLEBIG,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 64—Charles N. Clevert, Jr., Chief Judge.
ARGUED OCTOBER 30, 2009—DECIDED NOVEMBER 2, 2009
OPINION PUBLISHED APRIL 8, 2010
Before CUDAHY, POSNER and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Alan L. Klebig
of possessing an unregistered rifle and an unregistered
silencer, in violation of 26 U.S.C. §§ 5861(d) and 5871.
Klebig appealed both his conviction and his sentence. On
November 2, 2009, shortly after we heard oral argument
in this case, we issued an Order reversing the judgment
of conviction and remanding for a new trial. We noted
that an opinion would follow our Order. This is that
opinion.

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2 No. 08-2589
I.
On October 18, 2005, Alan Klebig had a peculiar collec-
tion of things in his home and yard. In addition to the
dozens of squirrel tails and shiny compact discs that
adorned his fence and yard, his house and garage con-
tained dozens (if not hundreds) of containers filled with
caustic chemicals and other unidentified substances. The
walls and floor inside his garage were covered with tools,
cords, cables, canisters, and just plain junk from every
imaginable category. Even the rafters of the garage were
filled with clutter, including a web-footed doll that was
suspended from the ceiling beams by its head. His base-
ment contained a similar collection of chemicals, tools
and odds-and-ends covering every shelf, every inch of
wall space and most of the floor. Every countertop and
tabletop surface in his kitchen was crowded with what
can only be described as stuff. He was not a good house-
keeper. His living room and bedrooms were also in disar-
ray. His home could not have been considered “guest
ready” unless the guests were a hazmat team and a van
full of Merry Maids. On his front door, he displayed a
small but threatening sign that warned visitors that
“Nothing Here Is Worth Dying For.” He had installed
security cameras to monitor his house and property. An
avid hunter, his home held almost two dozen firearms
of various types and sizes as well as ammunition and a
crossbow and arrows. Some of the guns were stored in a
cabinet and a toolbox but many were strewn around
the house, blending in seamlessly with the rest of the
mess. Near the front door was a loaded shotgun and a

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No. 08-2589 3
A silencer is considered a “firearm” for the purposes of the 1
statute. See 26 U.S.C. § 5845(a)(7) (“The term firearm means . . .
any silencer (as defined in section 921 of title 18, United States
Code)”). Section 921, in turn, defines the term “firearm silencer”
as “any device for silencing, muffling, or diminishing the
report of a portable firearm, including any combination of
parts, designed or redesigned, and intended for use in assem-
bling or fabricating a firearm silencer or firearm muffler, and
any part intended only for use in such assembly or fabrication.”
As we have noted, Klebig legally possessed more than 2
twenty other guns. We will refer to the rifle charged in the
indictment as the sawed-off rifle or the charged rifle or the
unregistered rifle, in order to distinguish it from the firearms
he held lawfully.
cane that could be pulled apart into “like a Samurai
sword type of thing.” Tr. at 28.
We know that this was the state of Klebig’s home on
October 18, 2005 because, at his trial for possessing two
unregistered firearms, the government entered into1
evidence witness testimony and a series of photographs
depicting Klebig’s home and yard. Klebig was charged
under Sections 5861(d) and 5871 with knowingly pos-
sessing a firearm and a silencer which were not reg-
istered to him in the National Firearms Registration
and Transfer Record. The unregistered firearm was a .22-
caliber rifle with a sawed-off barrel, a missing stock, and
two magazines of ammunition taped together. The total
length of the sawed-off rifle was thirteen inches and the
barrel was approximately six inches long. This unregis-2
tered rifle was found under Klebig’s bed, along with a

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4 No. 08-2589
Klebig was allegedly involved in a dispute with an elderly 3
neighbor. According to the Watertown Police Department,
Klebig blamed his neighbor for reporting him to local officials
for various property code violations. The local building inspec-
tor issued thirty-three tickets to Klebig, resulting in fines in
excess of $5000. The neighbor’s home and yard were
damaged by unknown substances that had been sprayed or
poured on her house and lawn. Police officers obtained a
warrant to search Klebig’s home for chemicals that could cause
that kind of damage. That search warrant, which led to the
discovery of the unregistered firearms at issue in the instant
case, was the subject of an earlier appeal. See United States
v. Klebig, 228 Fed. Appx. 613 (7th Cir. 2007).
Playboy magazine, as the government informed the jury
in opening statements, and as a government witness
helpfully reminded the jury during testimony. The
silencer consisted of an oil filter taped to the end of the
barrel of a different rifle that was leaning against the
wall inside his bedroom closet. Both the unregistered rifle
and silencer were seized in a search of Klebig’s home on
an unrelated matter.3
The main issue at the trial was whether Klebig knew
that the firearm under his bed possessed the charac-
teristics that required it to be registered as a rifle and
whether he intended to use the oil filter as a silencer. Not
all rifles are required to be registered in the National
Firearms Registration and Transfer Record (“Record”) but
a “rifle having a barrel or barrels of less than 16 inches
in length,” or a “weapon made from a rifle if such
weapon as modified has an overall length of less than

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No. 08-2589 5
26 inches or a barrel or barrels of less than 16 inches in
length” must be registered. 26 U.S.C. §§ 5845(a)(3) and (4).
Klebig did not contest the government’s characterization
of the sawed-off rifle as meeting this definition. Rather,
he contended that he did not know it was a rifle but
thought it was a modified pistol that did not require
registration. Klebig also argued that he did not intend
to use the oil filter as a silencer but rather as a flash sup-
pressor, a use that does not require registration. See 26
U.S.C. § 5845(a)(7). Because of this defense, Klebig’s
familiarity with firearms and silencers was a major issue
at trial.
Before the jury trial began, Klebig’s attorney moved
in limine to exclude from evidence the sign boasting,
“Nothing Here Is Worth Dying For” and also the presence
of a surveillance system in Klebig’s home. Counsel also
sought to exclude references to other items seized from
Klebig’s house including chemicals, oils, prescription
bottles, marijuana, and syringes. He asked the court to
prohibit references to the reasons the search warrant was
issued in the first place, and any mention of an investiga-
tion into damage caused to his next door neighbor’s
home. He argued that none of this evidence was relevant
to the issue of whether Klebig knowingly possessed two
firearms without having registered them as required
by law. If the court deemed the evidence relevant, he
argued in the alternative that any probative value was
outweighed by the prejudicial effect of this evidence,
and that this was inadmissable character evidence.
At a hearing on the motion, the government agreed it
would not refer to the investigation into damage to the

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6 No. 08-2589
property of Klebig’s neighbor. The government also
indicated it would not introduce evidence of the mari-
juana or syringes found in Klebig’s home, and agreed
it would not refer to the reasons the search warrant
was issued. The government argued, however, that the
sign and the surveillance were relevant because, like the
sawed-off rifle and the silencer, they were anti-burglary
devices. The government characterized the sign and
the security cameras as “inextricably intertwined” with
Klebig’s possession of the charged firearms. The sawed-off
rifle and the silencer would be intimidating items that
would discourage burglars, the government argued,
much like the sign and the surveillance system. The court
agreed and denied the motion in limine as to those
items. The court did not expressly address the part of
Klebig’s motion related to chemicals.
In its opening statement, the government described the
charges against Klebig and then turned to “the heart and
the meat of this case.” The government noted that the
Watertown Police Department executed a search war-
rant on Klebig’s home on October 18, 2005:
They came to his address, and what did they see. They
went to the door. They saw two double steel doors, and
they saw disks on the side of his property strung up
which shined light into a neighbor’s house. They
knocked on the door and made entry.
Next to the door before gaining entry they saw a sign
that read something along the lines of nothing in this
house is worth dying for or nothing in here is worth
your life, a sign to that effect.

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No. 08-2589 7
Tr. at 16. The prosecutor also mentioned a loaded rifle
next to the front door, and other rifles, guns and ammuni-
tion scattered throughout the house, in the living room,
kitchen and bedrooms. The government also described
the police officers finding a rifle with an oil filter taped to
the end of the barrel in Klebig’s bedroom closet. The
officers also searched under Klebig’s bed:
One officer pulled out another—a handgun from
underneath the defendant’s bed. Underneath the
defendant’s bed were some papers, a Playboy maga-
zine, a DVD, some type of DVD case; but the handgun
that they pulled out wasn’t the one with the scope
that they saw initially.
They pulled out another gun from underneath the
defendant’s bed. And what was it. It was a gun with a
sawed-off barrel, with a scope on it, with two maga-
zines taped to the bottom of it. Recognizing that as
an illegal weapon, they seized that.
Tr. at 18. The officers found on Klebig’s bedroom floor
another oil filter with what appeared to be a bullet hole
shot out on one end. In the second and third bedrooms
of the house, the officers found additional firearms and
“surveillance equipment for the defendant to monitor
the outside of his house. They found somewhere in the
neighborhood throughout the house, somewhere in the
neighborhood of 50 to 100 squirrel tails.” Tr. at 19.
The government’s first witness was Detective Michael
Beisbier, the Watertown police officer who conducted
the search of Klebig’s home. After describing his position

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8 No. 08-2589
and experience and establishing his role in the search,
the government explored the particulars of the search:
Q: And what did you observe outside the house when
you arrived?
A: We walked up the—like the front stoop to front
door. It’s double steel doors that lead into the
house. And there’s a sticker on the door that said
something to the effect of nothing in this residence
is worth dying for.
Q: Did you also observe objects strung up along
the defendant’s property?
A: Yes.
Q: What, if anything, did you observe?
A: Probably 50, 60 squirrel tails hanging throughout
the property along with these like CDs hanging
from strings.
Q: Were you able to observe the effect that the CDs
had hanging on the strings?
A: I guess I didn’t see what was on them, no.
Q: Do you know whether it caused a reflection onto
the neighbor’s property?
A: Yes, yes. They were strung up on the property line.
Tr. at 23-24. After eliciting a general description of the
search from Detective Beisbier, the government entered
into evidence photographs of the outside of Klebig’s
house, including photos that depicted, in part, the out-
side of the front door from across the width of the drive-

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No. 08-2589 9
Indeed, an examination of the photos with a magnifying 4
glass reveals the presence of a sticker that is a few inches
square. Any words on the sticker could have been read only by
a person standing on the porch, immediately in front of the
door. On cross-examination of Detective Beisbier, Klebig’s
lawyer introduced a closer view of the door, but again, no
words were discernable on the small sticker. Ex. 1001.
way. Using those photos as a reference, the government
asked, “And describe to the jury where the sign was or
the notice that said words to the effect of nothing in
here is worth dying for.” The detective answered, “It
was on the door. You can’t really see it, but as I recall
it’s on the door.” Tr. at 27. The detective also con-4
firmed that the CDs hanging from strings along the
property line, which can be seen in two photos, were
present on the day of the search.
The government continued to enter into evidence
photographs of the interior of Klebig’s home, asking
Detective Beisbier to point out for the jury the location
of firearms and ammunition he found in the living room
and kitchen. At this point, Klebig’s attorney objected to
the prejudicial nature of the testimony pointing out each
and every one of the legally owned guns in the home,
especially since Klebig had conceded in his opening
argument that he possessed a number of guns that he
purchased himself and also inherited from his father.
Counsel pointed out that the government had been elic-
iting testimony from Detective Beisbier for a half hour
without addressing anything related to the merits of the
case. After initially directing the government to limit

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10 No. 08-2589
further testimony to relevant matters, the court reversed
itself and allowed the testimony because Klebig had
implied in his opening statement that he was not an
expert with firearms.
The government next led the witness through a series
of photographs taken in Klebig’s rather untidy bedroom
where the officers found the sawed-off rifle and the
long rifle with the attached oil filter. Using the photos as
a guide, Detective Beisbier pointed out a dresser on
which he found ammunition, the long rifle with the oil
filter in the closet, the second oil filter, and the sawed-off
rifle recovered from under the bed. Detective Beisbier
testified that he saw a firearm under the bed, and warned
a fellow officer to remove it carefully because “[n]inety
percent of his guns were loaded.” Tr. at 41. The other
officer removed a silver revolver, and then went back
to retrieve the gun Detective Beisbier had seen from
his side of the bed:
I said there’s another gun underneath there, Dave, just
be careful; and as he set that one down, he went
back under. He had to move some items from under-
neath the bed; papers, a Playboy, I think, or two; and
then he had to reach down and pull the gun out, and
that’s the one—I said to him the one I see has a
scope on it. . . . and it was a .22 rifle that didn’t have
a stock on it and that the end of the barrel was cut off
of it.
Tr. at 41. Detective Beisbier testified to then finding a
loaded .45-caliber handgun, a crossbow with a quiver of
arrows, .12-gauge rounds, approximately 1000 BB gun

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No. 08-2589 11
rounds, and a container of .45-caliber shells, all in the
master bedroom. In addition to the photos, the sawed-off
rifle and the long rifle with the oil filter taped to the
end were also entered into evidence during Detective
Beisbier’s testimony.
Detective Beisbier identified photos of the next bed-
room, where he found several additional firearms, some
in a gun cabinet and some leaning against a wall. Some
were loaded and some were not. The second bedroom
also contained a surveillance system hooked up to a
camera mounted outside and pointing at the front door.
In the third bedroom, the detective found another fire-
arm, in a case, leaning against a wall. The room also
contained a camera on a tripod facing out the window.
The prosecutor next led Detective Beisbier through a
series of photographs of Klebig’s basement, which con-
tained a vast array of chemicals and tools, as well as a
motorcycle and a number of items that were both odd
and alarming in appearance. For example, one photo
portrayed a small plastic cooler, the type that a person
might carry to a picnic, containing a plastic bag of motor
oil. Tr. at 54; Ex. 26. Another portrayed a large soda
fountain canister converted to “a like weed eater sprayer
gun.” Tr. at 54; Ex. 27. Yet another depicted a plastic ice
cream tub containing a liquor bottle and a jug. Ex. 28.
Detective Beisbier testified, “That are, those are in the
laundry room on the shelving just above the washer and
dryer, the shelving, that are bottles of I believe to
be acid.” Tr. at 54. Although a few of the bottles in the
basement were identifiable substances such as common

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12 No. 08-2589
household cleaners and detergents, the vast majority of
the containers were unmarked or had illegible labels. On
some containers, the words “caution” and “corrosive” were
visible, and many of the shelves holding the bottles and
jugs were partly corroded. In one picture, the arm of a
person wearing a white glove can be seen pulling cords
and cables back to reveal five or six plastic gallon-size jugs,
each filled with a black substance and hand-labeled “oil.”
Ex. 33. When Klebig’s lawyer objected to these photos
and photos of the garage interior on relevance grounds,
the government contended that the pictures portrayed
“all sorts of things mechanical” and were relevant to
Klebig’s technical and mechanical abilities. Tr. at 56.
Although Klebig’s counsel asserted that he had not
called into question his client’s mechanical abilities, the
court overruled the objection.
The photos of the garage were equally odd. One
photo depicted a full length mirror leaning against the
outside of the garage door, next to a large jug and a
bucket on stained concrete. Ex. 37. Detective Beisbier
indicated that one of the containers held oil. Tr. at 58. As
with most of the other containers in the garage and base-
ment, the jury was left wondering what was in the other
one. Five pictures of the garage interior revealed two
motorcycles (or parts of motorcycles), several more soda
fountain canisters, buckets and jugs containing unidenti-
fied liquids and other substances, cables, cords, tools,
and crates, as well as a large number of objects that
simply cannot be identified. Exs. 38-42. As we noted
earlier, a web-footed doll was suspended from the ceiling
by its head, and the rafters were also filled with junk. Ex.

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No. 08-2589 13
On cross-examination, Detective Beisbier testified that he 5
found two handguns locked in a toolbox in the basement. The
guns are not visible in the photos of the basement and the
government did not ask Detective Beisbier on direct examina-
tion to point out the location of firearms in the basement.
38. The amount of clutter was breathtaking. None of the
photos from the basement or garage depicted firearms or
ammunition.5
Earl Griffith, a firearms expert from the Bureau of
Alcohol, Tobacco and Firearms (“ATF”) testified that he
examined the sawed-off rifle and identified it as a
Squires Bingham .22-caliber long rifle, manufactured in
the Philippines and sold by Kmart in the United States.
He noted that the barrel had been crudely cut off, the
stock lug had been removed, and the back rear sight had
been removed. A scope was mounted on the trigger
mechanism. Griffith also displayed for the jury an intact
Squires Bingham rifle that had not been modified in any
way. He compared the intact rifle to the one found
under Klebig’s bed and described all of the similarities
and all of the differences. In describing the sawed-off
rifle, he noted that the front part of the barrel had been
removed and the front sight was removed along with it.
He remarked:
See the marks where someone probably used a pipe
cutter to take it off; as it goes around and you tighten
it, goes around and it came off.
Tr. at 244. He testified that he test-fired the sawed-off rifle
and it was capable of being fired. He described the differ-

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14 No. 08-2589
The report of a firearm is the sound it makes on being 6
fired. Tr. at 248-49.
ence between a pistol and a sawed-off rifle, and con-
cluded that Klebig’s firearm was a rifle rather than a
pistol. Griffith also testified about silencers and flash
suppressors and opined that the oil filter taped to the
long rifle found in Klebig’s bedroom closet functioned as
a silencer. Griffith had seen oil filters employed for
this purpose twenty or thirty times in his career. He
tested the long rifle with the oil filter against a similar
long rifle without a filter and noted that, on average, the
oil filter reduced the rifle report by approximately six
decibels. On cross-examination, the defense questioned6
Griffith about pictures of pistols that bore some phys-
ical resemblance to the sawed-off rifle.
After this cross-examination, the government informed
the court that it intended to introduce into evidence the
firearms that Klebig legally possessed and turned over
to law enforcement officers when these charges were
brought against him. Tr. at 331; 368-69. The government
argued that the defense had put at issue Klebig’s knowl-
edge of firearms by suggesting that the sawed-off rifle
resembled a number of pistols that were not required to
be registered. The government contended it was relevant
for the jury to see exactly what guns Klebig possessed
and maintained. Klebig’s lawyer objected to the physical
presentations of the guns, arguing that the same
purpose could be accomplished with photographs of
Klebig’s guns. Tr. at 331-32; 369-70. He asserted that the

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No. 08-2589 15
prejudice of showing the jury twenty-three additional
guns individually or even as a group far outweighed the
probative value, especially because the same goal could be
achieved through the introduction of color photographs
of each gun that the government itself produced. The
court overruled the objection without comment.
The government then called to the stand Sergeant
Katherine Selck of the Watertown Police Department. The
prosecutor handed Klebig’s guns to Sgt. Selck one at a
time, asking her in each instance to identify the gun, and
verify that it came from Klebig. Through this process, the
government introduced a Colt Trooper .357 revolver; a
Ruger .32 single six-shot; a Davis Industries Model .22,
commonly called a Derringer; a Ruger .22-caliber revolver;
a High Standard double nine .22-caliber revolver; a .45-
caliber Pedersoli black powder; a .50-caliber Connecticut
Valley Arms black powder; a Mossberg .12-gauge
shotgun; a .20-caliber pellet gun; a Jukar black powder; a
Smith and Wesson 38 Special revolver; a Smith and
Wesson .177-caliber air gun; a Repeatair Crosman airgun;
a .45-caliber Colt Series 70 semiautomatic handgun; a .22-
caliber Sears-Roebuck 282; a Crosman airgun; a Western
Field .20-gauge shotgun; a Ruger Model .22-caliber; a
Remington .12-gauge shotgun; a Western Arms double-
barreled shotgun; a Daisy BB pellet gun; a .357-caliber
Marlin Model 1897; and a Topper Model .12-gauge shot-
gun. Each of the twenty-three guns was laid on the floor
in front of the witness box, as Sgt. Selck identified
them, forming an arc around the witness box. Tr. 370-86.
The guns remained on the floor while the court conferred
with counsel in a sidebar that occupied three pages of

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16 No. 08-2589
trial transcript, at which time the jurors were released
for lunch. Over the lunch break, Klebig’s lawyer asked
the court to remove the firearms:
One last issue, Judge. Can we have the guns removed
from the floor and around the witness table over the
lunch hour and put someplace else? Right now the
record should reflect they are lined up in front of the
witness box and around the side on the floor.
There’s about 25 guns laid out there as well as the
guns that are—
Tr. at 405. The court interrupted by stating, “They will
be appropriately removed and stored.” Tr. at 405. When
the jury returned from lunch, the guns were no longer
on the floor.
Some guns returned to the witness stand during the
government’s cross-examination of Klebig, who testified
on his own behalf. On direct, Klebig testified that he
owned approximately twenty-five guns, that he had been
an avid hunter since the age of sixteen when his father
began teaching him to hunt, and that he had inherited
about half of his firearms from his father. Klebig also
enjoyed target practice, read magazines related to
hunting and outdoor activities, and attended gun shows.
He explained that the compact discs hanging in his yard
were meant to keep mice and squirrels out of his garden.
He placed the squirrel tails around his yard after reading
in an outdoor magazine that birds would use the fur
to make nests. He explained that he had a security
system in his home because his work required him to be
away from home frequently. He was experimenting

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No. 08-2589 17
Mark DeBlare, the original owner of the sawed-off rifle, 7
testified that he broke the stock hitting a raccoon over the head
when hunting. Apparently, the raccoon continued to climb
out of a tree after DeBlare “unloaded the clip into the raccoon.”
Tr. at 153. After the attack on the hard-headed and unusually
resilient raccoon, all that remained of the rifle was the barrel
“with a little bit of the wood on it.” Tr. at 153. DeBlare later
sold the broken rifle to Larry Klebig, the defendant’s brother.
Although the stock was broken, the barrel was intact when
Larry Klebig took possession. The record does not reveal who
sawed off the barrel after Larry Klebig took possession of
the gun.
with oil filters, he claimed, to see if they would suppress
the flash of his shotgun. He intended to hunt for a trouble-
some raccoon on his mother’s property at night (raccoons
are nocturnal) and did not want to draw the atten-
tion of passing motorists. He testified that he found the
sawed-off rifle in the basement of his father’s home after
his father died. He thought it was a pistol missing its
grip or stock. He knew the barrel was sawed-off but
assumed that his father had sawed it off because the
tip had been damaged. After firing the weapon a few7
times, he stopped using it because it was inaccurate
and clumsy to hold.
On cross-examination, the government questioned
Klebig about four of his pistols and three of his long guns,
comparing features and asking how he would hold
them and operate them. Tr. at 451-62. It is unclear from
the record how many of the guns were visible to the jury
during this exchange, or where the guns were in the

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18 No. 08-2589
courtroom. After handing Klebig four pistols, the govern-
ment indicated it was turning the discussion to long
guns. At that point, the court intervened and directed the
government to “remove what’s up there, please.” Tr. at
453. After questioning Klebig about long guns, the gov-
ernment turned to the collection of firearms as a whole:
Q: There are a number of firearms here. Do you see
any with a sawed off barrel?
A: Not that I can see, no.
Q: All right. So none of them have a sawed off barrel.
Are any of them missing a stock?
A: I see they put some of them back together.
Q: No. I’m asking you do you see any of your firearms
that are missing a stock?
A: No.
Q: Do you see any of your firearms that are missing
a grip?
A: No.
Tr. at 460. Presumably, all of Klebig’s firearms were
present for this line of questioning but the record does not
reveal how they were displayed. The government also
questioned Klebig about his crossbow and arrows, his
surveillance cameras, and the sign on his door “that said
nothing in here is worth your life or worth dying for,
words to that effect.” Tr. at 464.
Prior to the start of closing arguments and outside the
hearing of the jury, the government told the court that it

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No. 08-2589 19
wished to argue to the jury that the second oil filter
found on Klebig’s bedroom floor “fit” the sawed-off rifle,
and that the “markings match.” Tr. at 551-53. When the
court asked the prosecutor to clarify the inference that
she wished the jury to draw from the demonstration,
she replied that, taking the sawed-off rifle and the
second oil filter together, “there’s an alternative sugges-
tion that he, in fact, used this as a silencer on this
particular item.” Tr. at 552-53. This inference, she con-
tended, was in turn relevant to Klebig’s knowledge of
the use of oil filters as silencers. Klebig objected to this
argument because nothing in the record tied those
items together, and nothing in the record supported the
inference the government was attempting to draw, that
Klebig had used the second oil filter as a silencer on
the sawed-off rifle. The court decided to allow the argu-
ment. The government proceeded to demonstrate twice
(once in the first part of closing arguments and once
in rebuttal) that the second oil filter fit on the barrel of
the sawed-off rifle. The prosecutor also told the jury
that the markings on the barrel “matched” the oil filter.
The last thing the jury saw or heard was the second
demonstration of the second oil filter being fitted onto
the sawed-off rifle. Less than an hour after entering
deliberations, the jury sent out a note requesting the
sawed-off rifle, the second oil filter, the long gun with
the oil filter taped to the barrel, and the clip from the
sawed-off rifle, in that order. The court arranged for the
jury to examine those items. The jury later returned a
verdict finding Klebig guilty on both counts. The court
sentenced Klebig to twenty-seven months’ imprisonment

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20 No. 08-2589
on each count, to be served concurrently. Klebig appealed.
As we noted earlier, after hearing oral argument, we
issued an order reversing the judgment of conviction
and remanding for a new trial. We indicated that this
opinion would follow.
II.
On appeal, Klebig challenges the district court’s deci-
sion to allow evidence relating to the sign on his front
door and his surveillance system. He also contends that
the court erred in allowing certain evidence relating to
his legal possession of other firearms. Finally, Klebig
maintains that the court erred in permitting the govern-
ment to conduct a demonstration during closing argu-
ments that introduced new, unsupported facts into the
record. Because we are reversing his conviction and
remanding for a new trial, we will not address his claim
that the court failed adequately to consider his argument
that he was entitled to a sentence of probation with
community confinement.
A.
We review evidentiary decisions for abuse of discretion.
United States v. Wescott, 576 F.3d 347, 355 (7th Cir. 2009),
cert. denied, 2010 WL 596600 (2010); United States v.
Millbrook, 553 F.3d 1057, 1062 (7th Cir. 2009). Some of the
evidence admitted in this case forces us to return to
first principles. With certain exceptions, all relevant
evidence is admissible, and evidence which is not

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No. 08-2589 21
relevant is not admissible. Fed. R. Evid. 402. “ ‘Relevant
evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
See also Huddleston v. United States, 485 U.S. 681, 687 (1988)
(Rules 401 and 402 establish the broad principle that
relevant evidence—evidence that makes the existence
of any fact at issue more or less probable—is admissible
unless the Rules of Evidence provide otherwise). With
respect to the charge of possessing an unregistered short-
barreled rifle, Klebig conceded all of the facts of conse-
quence except whether he knew that the firearm was a
rifle or a weapon made from a rifle. He conceded that
the sawed-off rifle met the statutory definition, that he
possessed it, and that it was not registered. He con-
tended that he thought the firearm was a modified
pistol that did not require registration. His knowledge
of whether this firearm was a rifle or a pistol was thus
the central fact of consequence for that charge. On
the silencer charge, Klebig again conceded that he pos-
sessed the oil filter and that it was not registered. He
contested only his knowledge that the oil filter was a
silencer and his intent to use it as a device for silencing,
muffling, or diminishing the report of a portable fire-
arm. He contended instead that he was testing the oil filter
as a flash suppressor, a device which is not required to be
registered, and that he did not intend to diminish the
report of the rifle and was not aware that the oil filter even
had that effect. As with the sawed-off rifle, the only fact of
consequence was Klebig’s knowledge and intent with
regard to the oil filter.

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22 No. 08-2589
So we begin by asking how a strange and rude sign on
Klebig’s door threatening that “Nothing Here Is Worth
Dying For” makes it more or less likely that Klebig knew
the firearm was a modified rifle rather than a modified
pistol. Similarly, we must ask whether this sign would
help a jury answer the question of whether Klebig knew
or intended to use the oil filter as a silencer rather than
a flash suppressor. In each instance, the government
urged the court below and argues to us on appeal that the
sign and surveillance system were admissible under the
“inextricably intertwined” doctrine. According to the
government, these items are inextricably intertwined
with the crime of knowingly possessing unregistered
firearms because they are probative of Klebig’s:
security conscious state of mind, which made it more
probable than not that he knowingly possessed a
sawed-off rifle, and a long rifle with a silencer. Both
items, [sic] have menacing appearances, and appear
likely to deter an intruder as the sign was meant to
do. Thus, this evidence was intertwined with Klebig’s
knowing possession of these illegal firearms.
Government’s Brief at 14. But Klebig’s preoccupation with
security concerns has nothing to do with his knowledge
that the sawed-off rifle was a rifle rather than a pistol or
his intent to use the oil filter as a silencer rather than a
flash suppressor. Both legal and illegal guns are menacing
to a burglar and Klebig legally possessed a small arsenal
that would have sent any burglar packing. His legally
owned firearms were visible all over the house, but the
sawed-off rifle was under his bed (along with a legally

-- 22 of 47 --

No. 08-2589 23
Although it is tempting to agree that the intimidating ap- 8
pearance of the sawed-off rifle or the long gun with the oil
filter would frighten a would-be burglar, the issue here is
Klebig’s knowledge and intent about these items. Items that
appear substantially identical to the charged items here may
be owned legally. Indeed, these very items may be legally
possessed if they are properly registered. Whether the items
would intimidate a burglar makes it no more or less likely that
Klebig knew the firearm was a rifle and whether he intended
to use the oil filter as a silencer.
possessed pistol) and the long gun with the oil filter
attached was in his bedroom closet. The government
has been unable to explain why security concerns make
it more likely that a person would know that a modified
gun started out as a rifle instead of as a pistol. Klebig did
not deny that he knew the gun was in his collection; he
denied only knowing that it was a sawed-off rifle instead
of a sawed-off pistol. We are hard-pressed to draw any
rational connection between sawed-off rifles, silencers
and burglars. A person normally saws off the barrel of a
gun in order to make the gun easier to conceal. A8
silencer makes it less likely that the shot would be
heard. But neither of these functions makes sense in the
context of protecting a home against burglary. There
is generally no need to conceal a gun from a burglar and
if there was, Klebig admittedly possessed many hand-
guns that would have been far easier to conceal and shoot
than the awkwardly configured sawed-off rifle. And a
homeowner hardly wants to muffle the sound of
the shot when taking aim at a burglar. A homeowner

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24 No. 08-2589
The government also twice took note of the “double steel 9
doors” on Klebig’s house as part of his security-conscious
attitude. Although the record does not reveal the full composi-
tion of the doors, they appear from the photographs to be two
ordinary steel entry doors in a side-by-side configuration.
According to Consumer Reports, “Steel doors account for about
half the market, competing with fiberglass and wood.” See
http://www.consum erreports.org /cro/hom e-garden/hom e-
improvement/hardware-building-supplies/doors-entry/entry-
doors-1004/overview/index.htm (last visited April 5, 2010).
There is no evidence in the record regarding whether steel
doors are more secure than other types.
would want the burglar to hear the shot and would
likely want neighbors to hear the commotion as well, so
that they might alert the police department.
The government’s explanation simply does not make
sense. It does not take much of a stretch to imagine the
real relevance of the sign and the surveillance system to
a jury. In combination with his legally owned guns, the9
vast amounts of clutter, the squirrel tails and compact
disks hanging in the yard, and the collection of unidenti-
fied but apparently caustic chemicals, the sign and the
surveillance cameras make Klebig appear to be a danger-
ous and perhaps unbalanced man, an oddball, perhaps
a survivalist or a gun nut. The government even saw fit
to twice mention the Playboy magazines found under
Klebig’s bed along with the sawed-off rifle, evidence
which had no relevance or purpose other than to perhaps
embarrass Klebig. This is all character evidence, which
is generally inadmissible for the purpose of proving

-- 24 of 47 --

No. 08-2589 25
action in conformity with that character. Fed. R. Evid.
404(a); Huddleston, 485 U.S. at 685; United States v. Bonner,
302 F.3d 776, 781 (7th Cir. 2002) (general evidence of the
defendant’s character is inadmissible in criminal cases).
Rule 404(b) “generally prohibits the introduction of
evidence of extrinsic acts that might adversely reflect on
the actor’s character, unless that evidence bears upon a
relevant issue in the case such as motive, opportunity, or
knowledge.” Huddleston, 485 U.S. at 685. This evidence
that Klebig posted a threatening sign on his door, filled
his home with security cameras, and stowed adult maga-
zines under his bed is wholly irrelevant to whether
Klebig knew the sawed-off gun was a rifle or a pistol
and whether he intended to use the oil filter as a silencer
or a flash suppressor.
We have criticized the “inextricably intertwined” or
“intricately related” doctrine (as we have called it at
times in other cases) as a vague theory that tempts prose-
cutors to expand the exceptions to Rule 404(b) beyond
the proper boundaries of that rule. United States v. Edwards,
581 F.3d 604, 608 (7th Cir. 2009), cert. denied, 2010 WL
250838 (2010); United States v. Taylor, 522 F.3d 731, 735 (7th
Cir.), cert. denied, 129 S. Ct. 190 (2008). Rule 404(b) con-
cerns evidence of other crimes, wrongs, or acts:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to
show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident,

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26 No. 08-2589
provided that upon request by the accused, the prose-
cution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to
introduce at trial.
Fed. R. Evid. 404(b). The government’s argument about the
sign and the surveillance system is really an argument
that these items were relevant to knowledge and
intent, recognized exceptions to the inadmissibility of
“other acts” evidence. Because knowledge and intent
are allowable uses of other acts evidence, there is no
need to “spread the fog of ‘inextricably intertwined’ over
them.” Taylor, 522 F.3d at 735. As we have just noted,
though, neither the sign nor the security system in
Klebig’s home shines any light on his knowledge or
intent regarding the sawed-off rifle and silencer. The
aim of Rule 404(b) “is simply to keep from the jury evi-
dence that the defendant is prone to commit crimes or
is otherwise a bad person.” Taylor, 522 F.3d at 735. Yet
that seems to be exactly the use to which this evidence
was put.
If this evidence had any slight relevance, it would be
outweighed by the danger of unfair prejudice and confu-
sion of the issues. Fed. R. Evid. 403. United States v.
Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). “Evidence is
unfairly prejudicial if it induces the jury to decide the
case on an improper basis rather than on the evidence
presented.” Conner, 583 F.3d at 1025. See also Old Chief
v. United States, 519 U.S. 172, 180 (1997) (evidence is

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No. 08-2589 27
Some of the photographs, which displayed the location of 10
weapons in the house, were relevant to the issue of Klebig’s
familiarity and comfort with firearms. With appropriate
instuctions to the jury on the proper use of those photos, they
would be admissible. However, some of the photos, especially
those of the basement and garage, showed no evidence of
firearms or ammunition and served no purpose other than to
show Klebig’s prodigious capacity to collect very odd and
sometimes dangerous looking clutter. On remand, the court
should review the photographs carefully to determine which
have relevance to the issues in the case, and which, although
relevant, bear a risk of undue prejudice that outweighs their
usefulness in helping the jury decide the issues. Irrelevant
photos, especially those which do nothing more than make
(continued...)
unfairly prejudicial when it has an undue tendency to
suggest decision on an improper basis, commonly, though
not necessarily, an emotional one); United States v.
Rogers, 587 F.3d 816, 822 (7th Cir. 2009) (same); United
States v. Coleman, 179 F.3d 1056, 1062 (7th Cir. 1999)
(relevant evidence may be considered unfairly prejudicial
when it has the capacity to lure the fact-finder into de-
claring guilt on a ground different from proof specific to
the offense charged). Evidence that Klebig is overly
concerned about security, to the point of threatening
visitors at the door with an ominous sign, invites the
jury to decide the case based on their fear or dislike of
Klebig rather than on the real issues in the case, namely,
his knowledge and intent. The same is true of the sur-
veillance system and some of the photographs of the
extensive clutter present in Klebig’s home and garage.10

-- 27 of 47 --

28 No. 08-2589
(...continued) 10
Klebig appear to be a strange or dangerous man, should
be excluded.
The court abused its discretion when it concluded that
any of this evidence was relevant to the issue of knowledge
and intent. We will defer for now the issue of whether
this error was harmless so that we may consider all
together any errors made at trial.
B.
Klebig also challenged the introduction of certain
evidence relating to the guns he legally owned. Klebig
concedes that his ownership of these weapons was
relevant to the issue of his familiarity with firearms.
He put that issue into play when arguing that he
did not know the sawed-off rifle was a rifle but thought
that it was a pistol, and when he contended that he
was using the oil filter as a flash suppressor and was not
aware it would also reduce the report of the gun. He
objects, however, to the amount of evidence relating to
the legal guns, and the manner in which it was presented.
In particular, he complains that the government led
Detective Beisbier through a room-by-room description
of the firearms and ammunition he found in the house,
and followed up each of those instances with a photo-
graph, so that Detective Beisbier could point out the
locations of various weapons and ammunition he had
just mentioned. The government then introduced into
evidence each of the legally owned firearms Klebig pos-

-- 28 of 47 --

No. 08-2589 29
sessed, over Klebig’s objection. Klebig argued to the
district court that photographs of the guns would serve
the same purpose of demonstrating Klebig’s extensive
experience with firearms without the unnecessarily
prejudicial effect of displaying approximately two dozen
guns to the jury. When the local police department took
custody of Klebig’s legally owned guns, the officers took
photographs of each gun for inventory purposes, and the
government possessed eight-inch-by-eleven-inch color
photos of each weapon as a result. The court overruled
Klebig’s objection and his alternate suggestion without
comment. As we described above, the government
then led Sergeant Selck through the introduction and
identification of approximately twenty-three firearms,
laying each on the floor in an arc around the witness
stand as they were identified.
The potential prejudice of this evidence was apparent
to the government. The prosecutor sought to reassure the
jury repeatedly that the weapons had been rendered
safe for the courtroom. Near the beginning of Sergeant
Selck’s testimony, the prosecutor asked her to con-
firm that courthouse building security had cleared the
weapons before they came into the building, and that
they had also been examined and cleared by the court-
room bailiff. Tr. at 372-73. During closing arguments, the
government showed the jury the intact version of the
sawed-off rifle, pointing out the size of the bore hole at
the end of the muzzle. In doing so, the government sought
to demonstrate that the weapon’s flash would be corre-
spondingly small, calling into doubt Klebig’s claim that
he wanted to use the oil filter as a flash suppressor. Tr. at

-- 29 of 47 --

30 No. 08-2589
563. In order to make her point that the bore hole was
small, the prosecutor literally asked the jury to look into
the barrel of the rifle. Acknowledging the jury’s discom-
fort with the firearm she was demonstrating, the gov-
ernment attorney assured the jury that the firearm was
safe, telling jurors, “I’m being safe with this firearm,” “if
anyone is uncomfortable let me know,” and “I don’t mean
to make any of you uncomfortable.” Tr. at 563. She fol-
lowed up the display of this single firearm with another
reassurance: “And I would say just for everyone’s
comfort level that these tags represent that the firearm is
secure. So I just wanted to make sure you know that.” Id.
In response to Klebig’s closing argument, the government
again mentioned the safety of the firearms appearing in
court:
And just so you know, before these firearms come into
court, Special Agent Handy from ATF, over there, he
checks them every day. He has plastic tabs on all of
them. They’re all safety-checked before they come
in here. CSO Hill, who is over there, checks them
before they come into court. Those—Mr. Klebig’s guns
were all inspected by Special Agent Handy and by
Mr. Hill before they came in here. So, I mean, just to
assure anyone if they had thought—They’re all safe.
Tr. at 579. These were acknowledgments that people
generally fear guns, and that the physical presence of a
large number of guns would cause a jury some anxiety.
Conceding that some evidence about the legally owned
firearms was relevant to the key issue in the case, Klebig
argued that the evidence should have come in through

-- 30 of 47 --

No. 08-2589 31
less prejudicial photographs. The government would still
have been able to make its point, Klebig contends, that
he was familiar with firearms and could tell a modified
rifle from a modified pistol. Although relevant evidence
is presumptively admissible under Fed. R. Evid. 402, a
court has the authority to exclude it if the risks posed
by the introduction of the evidence significantly out-
weigh its probative worth. Fed. R. Evid. 403; Mihailovich v.
Laatsch, 359 F.3d 892, 906 (7th Cir. 2004). Rule 403 provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation
of cumulative evidence.
“Rule 403 thus calls upon the district court to weigh the
need for and probative value of the evidence against
potential harm that its admission might cause.”
Mihailovich, 359 F.3d at 906; Advisory Committee Note
(1972).
We review a district court’s ruling under Rule 403 for
abuse of discretion. United States v. Ellis, 548 F.3d 539, 543
(7th Cir. 2008); United States v. LeShore, 543 F.3d 935, 939
(7th Cir. 2008). Klebig’s familiarity with guns was one of
the key issues in the case, given his defense that he
mistook the sawed-off rifle for a pistol and he did not
intend to use the oil filter as a silencer. That Klebig
owned and personally maintained a wide variety of
handguns and long guns was highly relevant to whether
he could tell the difference between the two when a

-- 31 of 47 --

32 No. 08-2589
weapon had been modified as was the sawed-off rifle.
The appearance of Klebig’s handguns and long guns was
therefore relevant. Klebig’s comfort and familiarity with
firearms was also relevant, and so the fact that he
stored loaded weapons throughout his home was fair
game for the government to raise.
Two dozen guns in a courtroom is undoubtedly an
alarming sight. The prosecutor’s repeated assurances
that the weapons were not loaded and that all were
examined multiple times to verify that they were secure
demonstrated an awareness that jurors would be appre-
hensive in the presence of this much weaponry. To make
the point that Klebig was very familiar with firearms, it
was not necessary to lay two dozen guns out on the
floor around the witness box. Nor was it necessary to re-
peat evidence regarding Klebig’s gun ownership multiple
times. The court appeared to give little consideration
to whether the government could make the same points
with photographs rather than the actual guns, or with
photographs of some guns and physical specimens of a
limited number of the guns. Some of the guns would
likely make the salient point better than others. We
do not mean to suggest that it was not appropriate to
bring any of the guns into the courtroom, but the display
on the floor of guns fanned out around the witness box
served no purpose other than to emphasize the sheer
volume of weaponry that Klebig owned. The effect was
to display his dangerousness rather than his knowledge
or expertise with firearms. Because the district court
allowed the evidence without comment, it is difficult to
assess the court’s weighing of the need for and probative

-- 32 of 47 --

No. 08-2589 33
value of this evidence against the danger of unfair preju-
dice. There were far less prejudicial ways to display
the guns and Klebig’s familiarity with them, and on
remand, the court should manage the presentation of
this evidence to focus on Klebig’s knowledge and intent
rather than on the sheer number of guns he possessed.
C.
Klebig also objects to the district court’s decision to
allow the government to conduct a demonstration during
closing argument that had the effect of introducing new
facts into the record. After the close of testimony and
prior to the start of closing arguments, the government
alerted the court that it wished to argue to the jury that
the second oil filter found on Klebig’s bedroom floor “fit”
the sawed-off rifle, and that the “markings match.” Tr. at
551-53. Klebig objected to this argument because nothing
in the record tied those items together, and nothing in the
record supported the inference the government was
attempting to draw, that Klebig had used the second oil
filter as a silencer on the sawed-off rifle. The court decided
to allow the argument. In closing, the government con-
tended that the primary issues were whether Klebig
knew that the sawed-off rifle was a modified rifle
rather than a modified pistol, and whether Klebig in-
tended to use the oil filter as a silencer as opposed to a
flash suppressor. In questioning the credibility of Klebig’s
claim that he intended to use the oil filter as a flash sup-
pressor, the government argued that the second oil filter
found on the floor of Klebig’s bedroom fit on the end of

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34 No. 08-2589
the sawed-off rifle. Klebig had testified that he had tried
the second oil filter on the same long gun on which
the charged oil filter was mounted. In the excerpt
below, Exhibit No. 1 was the long rifle with an oil
filter taped to the end of the barrel, Exhibit No. 2 was the
sawed-off rifle, and Exhibit No. 4 was the second oil
filter recovered from the bedroom floor.
Now, I’m going to show you something with regard
to Exhibit No. 2, the sawed off rifle, and Exhibit No. 4.
Now, Mr. Klebig or the defendant testified that coinci-
dentally he had only used Exhibit No. 1 ten years
prior to approximately October 16th. So if his testi-
mony is to be believed, on October 16th for the first
time in ten years he takes out Exhibit No. 4 along with
Exhibit No. 1, he goes to a quarry, he tests Exhibit
No. 4 on Exhibit No. 1, and then he goes ahead and
tests Exhibit No. 1 as it is in its entirety.
And then if his testimony is to be believed on that
date, because he’s testing two oil filters, he has to bring
the tape out with him, he has to bring the equipment
necessary to bore the hole in to get it in and out. He
has to bring all of that to the quarry, if his testimony
is to be believed. So that for the first time in ten years
he goes to the quarry.
Well, here’s a demonstration. Exhibit No. 2 under-
neath his bed, Exhibit No. 4 on the floor of his bed-
room. The markings fit, the oil filter fits.
Members of the jury, based upon the proximity of the
oil filter to this weapon which was underneath his bed
the defendant indeed did have the intent to use

-- 34 of 47 --

No. 08-2589 35
Exhibit No. 1 as a silencer and, in fact, had already
used it as a silencer and, in fact, had used, potentially
used Exhibit No. 4 on Exhibit No. 2. It fits.
Tr. at 561-62. In his closing argument, Klebig compared
transcripts of the government’s closing argument with
the ATF agent’s testimony. Klebig noted that the gov-
ernment’s own expert witness had opined that the marks
on the barrel of the sawed-off rifle were probably caused
by a pipe cutter. Klebig had no opportunity to cross-
examine the ATF expert about the government’s claim
that the marks were caused by the oil filter found on the
floor rather than by a pipe cutter. Klebig was thus forced
to argue against the demonstration without having any
opportunity to test the government’s claim on the stand.
There is no way to know on this record whether the ATF
expert would have backed up the government’s theory
about how the marks were created on the rifle barrel.
Counsel had no opportunity to cross-examine the gov-
ernment’s expert on this point, and had no opportunity
to put his client back on the stand to deny or explain
this new evidence.
The government later closed its rebuttal argument with
a second demonstration, aided by some of the photographs
of Klebig’s bedroom that had been entered into evidence:
What you see first is the firearm, Exhibit No. 1, in the
defendant’s closet with his clothes. This is a picture of
the scene on October 18th. The next shot documents
where Exhibit No. 4 was found. Exhibit No. 4, an
oil filter, was found in the defendant’s bedroom.
Next picture, please. The next exhibit documents
the Exhibit No. 2 after it was pulled out from the

-- 35 of 47 --

36 No. 08-2589
defendant’s bed—underneath the defendant’s bed.
Now, I’m going to step out from behind the podium
for a minute, and I’m going to speak loudly. Special
Agent Griffith did testify that he thought this might
have been some vice grip or something like that, but
that’s not inconsistent with the thread mark—with it
matching the thread marks from the oil filter. You’ll
have the opportunity to do this yourself.
You take Exhibit No. 2 with Exhibit No. 4, they were
in close proximity to each other in the bedroom, and
you put them on. It’s a match. The blue ink is worn
away to fit the threads of this oil filter. The sight here
is gone. There would have been a sight—There would
have been a sight here. If there was a sight here,
you couldn’t put the oil filter on.
The proximity of Exhibit No. 4 to Exhibit No. 2 in the
defendant’s bedroom, a match, is inconsistent with
his testimony that he used this as a test for Exhibit
No. 1. It doesn’t work. There’s a Latin phrase I
learned once, res ipsa loquitur, the thing speaks for
itself, and that’s exactly what this does.
Members of the jury, all you need to do is look to the
defendant’s testimony in conjunction with what you
know to be true in this case, and you will—and there
is sufficient evidence to find the defendant guilty
beyond a reasonable doubt on Count One and Count
Two. Thank you.
Tr. at 599-600.
As we noted above, the last thing the jury saw or heard
was this second demonstration of the second oil filter

-- 36 of 47 --

No. 08-2589 37
being fitted onto the sawed-off rifle. Less than an hour
after entering deliberations, the jury sent out a note
requesting the sawed-off rifle, the second oil filter, the
long gun with the oil filter taped to the barrel, and the
clip from the sawed-off rifle, in that order. The court
arranged for the jury to examine those items, and the
jury later returned a verdict of guilty on both counts of the
indictment. Klebig contends that the prosecutor’s demon-
stration and argument relating to the demonstration
were improper and constituted prosecutorial misconduct.
In reviewing a claim of prosecutorial misconduct, we
consider first whether the challenged remark by the
prosecutor was improper, and second, whether it preju-
diced the defendant. Wescott, 576 F.3d at 355; United
States v. Serfling, 504 F.3d 672, 677 (7th Cir. 2007), cert.
denied, 128 S. Ct. 1718 (2008). Klebig argues that the demon-
stration and accompanying argument were improper
because they were not based on evidence in the record, but
rather constituted new evidence. Although prosecutors
may not “infuse their closing arguments with facts that
the court has not admitted into evidence, they may
argue reasonable inferences from the evidence that the
jury has seen and heard.” United States v. Waldemer, 50 F.3d
1379, 1383 (7th Cir. 1995). See also United States v. Doyle, 771
F.2d 250, 258 (7th Cir. 1985) (closing arguments are
limited to the facts evidence); United States v. Vargas, 583
F.2d 380, 385 (7th Cir. 1978) (counsel may make argu-
ments reasonably inferred from the evidence presented).
At some point, however, the inference asked to be
drawn will be unreasonable enough that the sugges-

-- 37 of 47 --

38 No. 08-2589
tion of it cannot be justified as a fair comment on the
evidence but instead is more akin to the presentation
of wholly new evidence to the jury, which should
only be admitted subject to cross-examination, to
proper instructions and to the rules of evidence.
Vargas, 583 F.2d at 385. See also Doyle, 771 F.2d at 258
(same). Whether an inference is reasonable will, of course,
depend on the particular facts of the case. Waldemer, 50
F.3d at 1384 (the term “reasonable inference” must be
defined contextually). “Whether the evidence bears
logical and proximate connection to the point the pros-
ecutor wishes to prove are perhaps the most obvious
considerations in determining whether the inference is
reasonable.” Waldemer, 50 F.3d at 1384. Another factor
to consider is whether the prosecutor makes the argu-
ment solely to inflame the passions of the jury. Id. In
Vargas, we also deemed relevant whether the prosecutor’s
statement would have been subject to a colorable objec-
tion if introduced during the trial. Vargas, 583 F.2d at 385;
Waldemer, 50 F.3d at 1384. In Waldemer, we questioned
the utility of this last consideration, but concluded it
could play into the calculus of whether the prosecutor’s
statement was a reasonable inference. Waldemer, 50 F.3d
at 1384.
With these standards in mind, we turn to the prosecu-
tor’s statements here. In particular, Klebig contends that
the government stated new facts when the prosecutor
asserted, “The markings fit,” and “It’s a match. The blue
ink is worn away to fit the threads of this oil filter.” Tr. at
561-62 and 599-600. Additionally, the prosecutor implied

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No. 08-2589 39
Any doubt that this inference was the one the prosecutor 11
wished the jury to draw may be dispelled by the prosecutor’s
argument to the court. When the court asked, “[W]hat inference
are you suggesting should be drawn from what you just
demonstrated?” the prosecutor answered, “The defendant’s
knowledge is at issue, I think that’s clear from his testimony
and all the arguments, his knowledge or his intent to use
Exhibit No. 1 [the charged oil filter attached to the long gun] as
a silencer as opposed to a flash hider or flash suppressor.
Here we have this oil filter that was located on the floor. This
[presumably the sawed-off rifle] was located underneath
the bed. It was loaded. The markings match. The defendant
testified that he used this [the second oil filter] at the quarry on
Exhibit No. 1 [the long gun]. My argument is that, you know,
it would be, take these two pieces of evidence and you put
them together, there’s an alternative suggestion that he, in
fact, used this [the second oil filter] as a silencer on this particu-
lar item [the sawed-off rifle]. I’m not saying that there is
testimony. I’m just saying based on the evidence in the record
that that’s a fair inference that the jury can draw which goes
to his knowledge of the use of these silencers.” The court
replied, “You may proceed.” Tr. at 552-53.
that Klebig had already used the second oil filter as a
silencer on the sawed-off rifle, and also implied that
because he had used the uncharged oil filter as a
silencer on the sawed-off rifle, it was more likely that he
intended to use the charged oil filter as a silencer:11
“Members of the jury, based upon the proximity of the
oil filter to this weapon which was underneath his bed
the defendant indeed did have the intent to use Exhibit
No. 1 as a silencer and, in fact, had already used it as a

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40 No. 08-2589
silencer and, in fact, had used, potentially used Exhibit
No. 4 on Exhibit No. 2. It fits.” Tr. at 562. In effect, she
asked the jury to infer that Klebig had used a different oil
filter as a silencer on a different gun (the sawed-off rifle),
and that this made it more likely that he intended to use
the charged oil filter as a silencer on the long gun. An
argument that a defendant is more likely to be guilty of
the charged crime because he committed the same crime
on another occasion is a propensity argument, and as
such, it would be subject to a colorable objection had it
come in as evidence rather than as argument in closing
statements. Fed. R. Evid. 404(b). The prosecutor also
added to the testimony of the government’s own expert
by claiming that the expert’s testimony was not inconsis-
tent with her new theory: “Special Agent Griffith did
testify that he thought this might have been some vice
grip or something like that, but that’s not inconsistent
with the thread mark—with it matching the thread
marks from the oil filter.” Tr. at 599-600.
The issue before the jury was whether Klebig intended
to use the oil filter that was taped to the barrel of a long
gun as a silencer rather than as a flash suppressor. Several
physical objects relevant to the prosecutor’s argument
had been admitted into evidence, including the long gun
with the oil filter taped to the barrel, the sawed-off rifle
and the second oil filter found on the floor of Klebig’s
bedroom. The first inferential leap the prosecutor made
was that the second oil filter made the marks on the
barrel of the sawed-off rifle. She next asserted that the
marks were a match, that the oil filter fit, and that this
was evidence Klebig had used the second oil filter on the

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No. 08-2589 41
The government sought to assure us at oral argument that 12
the prosecutor alerted the trial court to this argument before
making it before the jury, and thus did not engage in prosecu-
torial misconduct in the usual sense of that term. Although
it was admirable that the prosecutor sought to get the court’s
approval before attempting this unusual closing argument
demonstration, from the defendant’s perspective the effect
was the same whether or not the prosecutor had a wrongful
motive in making the argument. Because allegations of prose-
cutorial misconduct are based on notions of due process, the
inquiry focuses on the fairness of the trial and not the culpa-
bility of the prosecutor. See United States v. Velez, 46 F.3d 688,
691 (7th Cir. 1995).
sawed-off rifle. According to the prosecutor, Klebig was
therefore lying when he said he had tried out the second
oil filter on the long gun to which the charged oil filter
was attached. She then drew the final connection, con-
tending that Klebig had already used the second oil filter
as a silencer on the sawed-off rifle, making it more likely
that he was using the charged oil filter as a silencer on
the long gun.
We conclude easily that it was error to allow the demon-
strations and accompanying commentary. Wescott, 57612
F.3d at 355; Serfling, 504 F.3d at 677. The government’s
demonstration asserted new facts that seemed to conflict
with the testimony of the government’s own expert. A
number of leaps were required to travel from the asser-
tions that the second oil filter fit the sawed-off rifle to the
conclusion that the government sought to prove, that
Klebig intended to use the charged oil filter as a silencer

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42 No. 08-2589
on the long gun. One of those leaps involved propensity
evidence that may be admitted, if at all, only with proper
limiting instructions. Klebig may well have raised a
successful objection had the government sought to
prove this point at trial. In addition, the government
muddied the waters further by stating that the ATF agent
had testified the marks were caused by “some vice grip
or something like that” when the agent had in fact said
the marks were likely caused by a pipe cutter. Tr. at 244.
Our review of the record finds no reference to a vice
grip in the trial.
The government argues that the prosecutor was
simply characterizing the appearance of admitted items,
and that the jury could examine the evidence and con-
clude whether the government’s characterization was
correct. Citing Velez, the government maintains that
“when the jury has the evidence in its possession
and is equipped to ascertain whether the government’s
characterization is accurate, a statement characterizing
that evidence is not improper.” Velez, 46 F.3d at 692. In
Velez, a drug trafficking case, a scale was admitted into
evidence. During closing arguments, the prosecutor stated
to the jury that the scale had a “white powder residue
on it.” 46 F.3d at 691. The court found this was not im-
proper because the jury could look at the scale and
decide if the statement was correct based on its own
observation. But the prosecutor in Klebig’s case went
far beyond describing the markings on the barrel of the
sawed-off rifle. She stated that the markings fit, that
they were a match, and that the blue ink was worn
away to fit the threads of the second oil filter. The fit, the

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No. 08-2589 43
match, the cause of the discoloration on the barrel
were not facts that the jury could simply confirm by
looking at the evidence. The government’s own expert
had an entirely different explanation for how the marks
were caused and what they “fit” or “matched.” The
marks were likely made by a pipe cutter, according to the
ATF agent. The marks may or may not have been
caused by or been consistent with the second oil filter. We
cannot say because this evidence was allowed for the
first time in closing arguments when there was no oppor-
tunity to test it. This very subject matter of the cause of
the marks had already been the topic of expert testimony
and was not a readily observable “fact” like the existence
of white powder residue on a scale.
We next consider whether Klebig was prejudiced by
this error, and we conclude that he was. To assess the
prejudice of the improper demonstration, we must con-
sider it in light of the whole trial to determine if it
deprived Klebig of a fair trial. United States v. Cheska, 202
F.3d 947, 950 (7th Cir. 2000). In assessing the effect of
improper remarks on the fairness of the trial, a court
should consider the nature and seriousness of the
remarks; whether the remarks were invited by the
conduct of defense counsel; whether the district court
sufficiently instructed the jury to disregard the remarks;
whether the defense could counter the improper remarks
through rebuttal; and finally, whether the weight of
the evidence was against the defendant. United States
v. McMath, 559 F.3d 657, 667 (7th Cir.), cert. denied, 130
S. Ct. 373 (2009); Serfling, 504 F.3d at 677; Cheska, 202
F.3d at 950.

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44 No. 08-2589
This was not a single, off-handed remark, but rather
a demonstration and commentary that occurred twice in
the government’s closing arguments. The implication of
the demonstration was that Klebig lied about testing
the long gun with the oil filter to see if it would suppress
the gun’s flash because Klebig had also used an oil filter
on the sawed-off rifle, in that case as a silencer. When
it sent out a note to the court during deliberations, the
jury specifically asked to see the second oil filter and the
sawed-off rifle, among other things, apparently taking
the prosecutor up on her suggestion that the jurors
could themselves repeat the demonstration. There were
no charges pending relating to the second oil filter, and we
are hard-pressed to explain why the jury wanted to see
it except to repeat the demonstration. The demonstration
was not invited by anything that defense counsel said
during the trial or during closing statements. Although the
jury was instructed that the arguments of counsel were
not evidence, it is difficult to know how the jury would
have applied this admonition to the prosecutor’s demon-
stration and accompanying commentary.
Of course, Klebig had no opportunity to cross-examine
ATF Agent Griffith on the government’s claims that the
marks on the barrel of the sawed-off rifle were “a match”
with the uncharged oil filter, that the marks were
caused not by a pipe cutter but by the oil filter, and that
the oil filter had worn away the blue ink on the barrel to
fit the threads of the filter. Klebig had no opportunity
to ask the government’s expert if the government’s
claim was in fact consistent with his testimony that the
marks were caused by a pipe cutter, as the government

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No. 08-2589 45
asserted. Without knowing during the trial that the
government was going to argue that Klebig had already
used the second oil filter on the sawed-off rifle, Klebig
had no opportunity to explain or deny this assertion
when he took the stand in his own defense. Nor was he
able to object to this assertion as improper evidence
under Rule 404(b). If the government’s remarks would
have been subject to a colorable objection if introduced
as evidence during the trial, “it is important to enforce
carefully the limitation that the inference be reasonable
not only to avoid abridging the defendant’s right to cross-
examine possibly untrue testimony but also to prevent
a party from presenting to the jury in closing argument
a fact that might have been ruled inadmissible at trial
(or at least subject to a limiting instruction) simply by
asserting in closing argument that the jury could infer it
from the evidence that was presented and admitted.”
Vargas, 583 F.2d at 385.
A demonstration such as the one conducted by the
prosecutor twice in closing arguments should have been
conducted, if at all, with a witness on the stand who
could assert from first-hand knowledge or by expert
opinion that the government’s theory was plausible. And
Klebig should have been given an opportunity to test
that theory through cross-examination, and to present
his own evidence on the subject. Finally, if the govern-
ment intended to argue that Klebig had engaged in the
same conduct with a different filter and a different gun
than the filter and long gun charged in the indictment,
Klebig should have had the opportunity to challenge
this as propensity evidence, and request a limiting in-

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46 No. 08-2589
struction. Vargas, 583 F.2d at 386 (the need for caution
is particularly prevalent when the government’s state-
ment involves evidence which, although arguably ad-
missible, is subject to objections under Rules 403 and 404,
which is recognized to be perhaps the most prejudicial
kind of evidence). The prejudice to Klebig has been estab-
lished.
III.
There were thus three errors in the trial. First, the
court should not have allowed the government to place
into evidence the threatening sign and security system,
which together with other irrelevant, prejudicial evidence
had the effect of inviting the jury to convict Klebig based
on their fear or dislike of him. Second, the court should
have more carefully managed the introduction of evi-
dence relating to Klebig’s extensive collection of legally
owned guns, so that the presentation would have
focused on the relevant issue of Klebig’s knowledge of
and familiarity with firearms instead of on the sheer
volume of fire power that Klebig possessed. Finally, the
court should not have allowed the two demonstrations
to take place during closing arguments, but rather
should have required the government to enter this evi-
dence, if at all, through a witness who could be cross-
examined. The effect of all of these errors was to cause
the jury to see Klebig as an odd man and perhaps a dan-
gerous one, and to decide the case on that basis rather
than on the issue of Klebig’s knowledge and intent
related to the sawed-off rifle and the oil filter taped to

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No. 08-2589 47
the barrel of the long gun. The errors, taken together, were
not harmless. See United States v. Blanchard, 542 F.3d 1133,
1151 (7th Cir. 2008) (the test for harmless error is whether,
in the mind of the average juror, the prosecution’s case
would have been significantly less persuasive had the
improper evidence been excluded); United States v. Emer-
son, 501 F.3d 804, 813 (7th Cir. 2007) (same). See also
United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000) (in
determining whether a conviction should be upheld
despite the presence of error, a court is required to
assess the harm done by the errors considered in the
aggregate). Without the improperly admitted evidence,
the prosecution’s case here would have been con-
siderably weaker. The evidence on Klebig’s knowledge of
the nature of the sawed-off rifle and his intent to use the
filter as a silencer was not so strong that we can be confi-
dent that the jury would have convicted Klebig in the
absence of these errors. We therefore reverse Klebig’s
conviction and remand for a new trial, conducted con-
sistently with this opinion.
REVERSED AND REMANDED.
4-8-10

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