United States of America v. Michael Phillippi

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2488
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ICHAEL P HILLIPPI ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 04 CR 24—John Daniel Tinder, Judge.
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A RGUED J ANUARY 25, 2006—D ECIDED A PRIL 5, 2006
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Before POSNER , M ANION , and W OOD , Circuit Judges.
M ANION , Circuit Judge. On September 14, 2003,
Michael Phillippi attempted to purchase a 12-gauge shotgun
and ammunition from a sporting goods store in Terre
Haute, Indiana. The attendant handed Phillippi a copy of
ATF Form 4473 and told him to complete the form truth-
fully and accurately. The attendant indicated that the
form would be used to complete a background check.
This case arose as a result of the answer Phillippi gave
to question 12b, which asks: “Are you under indictment
or information in any court for a felony, or any other
crime, for which the judge could imprison you for more

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2 No. 05-2488
than one year?” Without asking any additional questions of
the attendant, Phillippi answered, “No.” Further, he signed
the certification at the bottom of the form that said: “I
understand that a person who answers ‘yes’ to any of the
questions 12b through 12k is prohibited from purchasing or
receiving a firearm. . . . I also understand that making any
false oral or written statement . . . with respect to this
transaction, is a crime punishable as a felony.”
Although none of Phillippi’s answers precluded the
sale of the shotgun, when the attendant contacted the
National Instant Criminal Background Check System
(NICS), he was instructed to “delay” the transaction. The
attendant told Phillippi that he would have to wait three
days for NICS to recontact the sporting goods store. Al-
though he paid for the shotgun and ammunition and
received a sales receipt, NICS ultimately denied permis-
sion for the sale because of Phillippi’s history of domestic
violence and drug abuse. It turned out that he had qualify-
ing felony cases pending in three different counties: a
charge of obtaining a controlled substance by fraud filed in
March 2003 in Vigo County, Indiana; charges of forgery and
attempted acquisition of a controlled substance by fraud
filed in April 2003 in Tippecanoe County, Indiana; and an
arrest for felony intimidation in Edgar County, Illinois, on
September 9, 2003.
Phillippi was charged with one count of making a false
statement in connection with the attempted acquisition of a
firearm and ammunition from a federally licensed firearms
dealer. See 18 U.S.C. § 922(a)(6). Before trial he filed a
motion in limine to exclude evidence of two of the three
pending charges, arguing that the Supreme Court’s decision
in Old Chief v. United States, 519 U.S. 172 (1997), forbade
presenting “multiple pending cases” as long as

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No. 05-2488 3
the defendant was willing to stipulate to having a pend-
ing case on the date of the offense charged in the
indictment. The motion was accompanied by a proposed
stipulation to the Vigo County charge. At the evidentiary
hearing on the morning of trial, the government responded
that it would not pursue the Edgar County charge but
asserted that it was entitled under Federal Rule of Evi-
dence 404(b) to present transcripts from the proceedings
in both of the other cases to show that Phillippi knew
he was under a felony information when he executed
ATF Form 4473. Phillippi then offered to stipulate to
either the Vigo County charge or the Tippecanoe County
charge, whichever the government preferred, but the gov-
ernment rejected the offer.
The district court denied the motion in limine except as
it regarded the Edgar County charge. The court
distinguished Old Chief on the ground that Phillippi’s
proposed stipulation was not a method of proof equivalent
to the government’s evidence. To make it equivalent, the
court suggested, Phillippi would have to stipulate as well to
his knowledge that he could be imprisoned for more than
one year. Phillippi refused to make the additional
stipulation, thinking, as his counsel explained at
oral argument, that this would be tantamount to con-
fessing the crime. The court then weighed the probative
value of the government’s evidence against a risk of
prejudice it considered “quite slight” and concluded that the
prejudice did not outweigh the probative value. See Fed. R.
Evid. 403.
At trial, the government introduced the two felony
informations and had the respective court reporters read
into the record the portions of the transcripts involving
colloquies on the charges. Phillippi testified in his own

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4 No. 05-2488
defense, explaining to the jury that his false answer on ATF
Form 4473 was an “honest mistake” that resulted because he
“went through” the paperwork “too quick[ly].”
Nevertheless, the jury found him guilty. The district court
imposed a fine of $15,000 and sentenced him to 50 months’
imprisonment and three years’ supervised release.
On appeal, the sole issue is whether the district court
abused its discretion in admitting evidence of both of the
pending felony charges. Phillippi points out that in Old
Chief, the Supreme Court reversed the district court’s
decision to admit the full record of the defendant’s prior
felony conviction, because it found that the danger of
prejudice due to the similarity between the offense of
conviction and the charged offense substantially
outweighed the probative value of the record evidence. See
Old Chief, 519 U.S. at 191. The Court held that where the
only purpose for which the government sought to introduce
evidence of the defendant’s conviction was to prove the fact
of conviction, it was an abuse of discretion to refuse the
defendant’s offer to stipulate to the conviction. Id. Phillippi
points to three areas in which his case is congruent with Old
Chief: (1) his offense involved a “legal status” element, (2) he
offered to stipulate to that element, and (3), at least in his
view, there was a similarity between his prior charges and
his current charge, because all three could be characterized
as “crimes of lying to obtain a regulated product.” Based on
these congruencies, he asks us to hold that the case is
controlled by Old Chief.
This analysis, however, misses the point of Old Chief.
The Court deliberately limited its holding to “cases in-
volving proof of felon status,” see id. at 183 n.7, because
the holding depended on its conclusion that the evidentiary
values of the stipulation and the evidence the government

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No. 05-2488 5
wished to present were “distinguishable only by the risk [of
prejudice] inherent in the one and wholly absent from the
other,” id. at 191. Phillippi did not and could not show that
the stipulation he offered was an adequate substitute for the
government’s evidence because the government’s evidence
had an additional purpose beyond proof of his felony
status. The government intended to show not only that he
was subject to a felony information but also that he knew
that his statement to the sporting goods store was false. See
United States v. Dillon, 150 F.3d 754, 759 (7th Cir. 1998)
(holding that conviction under § 922(a)(6) requires proof
that “defendant knowingly made a false statement to a li-
censed firearms dealer”).
The existence of this additional purpose is enough to
take Phillippi’s case outside the scope of Old Chief. Old Chief
itself indicated that its result was not applicable in cases like
this one when it warned that “[t]he issue of substituting one
[sort of evidence] for the other normally arises only when
the record of conviction would not be admissible for any
purpose beyond proving status, so that excluding it would
not deprive the prosecution of evidence with multiple
utility.” See Old Chief, 519 U.S. at 190. Moreover, in United
States v. Williams, 238 F.3d 871, 876 (7th Cir. 2001), we held
specifically, citing Old Chief, that “a defendant’s offer to
stipulate to an element of an offense does not render
inadmissible the prosecution’s evidence of prior crimes to
prove elements such as knowledge and intent.”
Here, we would have no ground for disturbing the district
court’s decision to admit the government’s evidence, even
if the government had wanted to introduce the second
information only because it believed that two adjurations
about the felony penalty were better than one. See Gonzalez
v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997) (noting that “no
rule of law . . . limits the prosecutor to one piece of evidence

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6 No. 05-2488
in support of each element of the offense”). But there is
further justification for the decision. The government
argues, persuasively, that inclusion of both informations
was not merely duplicative but actually necessary because
of “deficiencies” in both proceedings that left either
vulnerable to the claim that Phillippi did not understand the
penalties he faced. In the Vigo County proceedings, the
presiding judge read him the charges and the possible
penalties, and asked him if he understood them, but he did
not answer. Though the judge followed up with another
question about the charges, he did not again probe
Phillippi’s understanding of the penalty. In the Tippecanoe
County proceedings, Phillippi was shown an audio-
videotape that explained the charges and penalties. He
confirmed in colloquy with the presiding magistrate judge
that he was able to hear the videotape and that he had no
questions about his rights, but he was never specifically
questioned about the applicable penalties.
We perceive no abuse of discretion in the district court’s
admission of this evidence, and therefore we A FFIRM the
judgment of conviction.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-5-06

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