United States v. Ghiassi

729 F.3d 690, 2013 WL 4647312, 2013 U.S. App. LEXIS 18190
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 30, 2013
DocketNo. 12-3596
StatusPublished
Cited by33 cases

This text of 729 F.3d 690 (United States v. Ghiassi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ghiassi, 729 F.3d 690, 2013 WL 4647312, 2013 U.S. App. LEXIS 18190 (7th Cir. 2013).

Opinion

ROVNER, Circuit Judge.

Farshad Ghiassi pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court ordered him to serve a prison term of 70 months. Ghiassi appeals his sentence, contending that the district court erred as a matter of fact in finding him responsible for eight or more firearms and deprived him of due process by relying, in substantial part, on his co-defendant’s testimony at her sentencing to make that finding. Finding no error, we affirm.

I.

In February and early March of 2011, Alicia Wiseman purchased a total of eight handguns at outdoor-gear retail stores in southern Indiana: six of them she acquired from a Gander Mountain store in Evansville, Indiana, and the other two she purchased at a Bass Pro Shops in Clarks-ville, Indiana. Chad Foreman, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), looked into those purchases. When Foreman interviewed Wiseman on March 21, 2011, she told him that she had purchased the guns for Ghiassi. Ghiassi was prohibited from possessing firearms on two grounds: he had prior felony convictions for stalking and taking another person’s vehicle without the owner’s consent, and he was also the subject of a protective order which prohibited him from possessing a firearm. Wiseman indicated to Foreman that Ghiassi would shop for the type of handgun he wanted, and he would then advise Wiseman of his choice. Wise-man in turn would buy the gun on his behalf, and in connection with each purchase complete an ATF Form 4473 in which she falsely averred that she would be the individual possessing the firearm. Following the purchase, she would deliver the gun to Ghiassi at his apartment, on the understanding that he would reimburse her for it.

Upon Wiseman’s additional disclosure that Ghiassi had an AK-47 assault rifle that he wished to sell, Foreman arranged [692]*692to make an undercover purchase of that weapon. Wiseman, who agreed to cooperate, advised Ghiassi by text message that she had a friend who was interested in buying the gun; Ghiassi in turn instructed Wiseman to have her friend call him. Foreman did so, and arranged by phone to purchase the gun for $550. Foreman was to meet Ghiassi in the parking lot of an Evansville movie theater on March 23, 2011.

At the scheduled place and time, Ghiassi arrived at his meeting with Foreman in a Subaru automobile driven by Chad Gam-blin. Ghiassi sold the assault rifle to Foreman as agreed for $550. After Ghiassi turned the weapon over to Foreman, both he and Gamblin were taken into custody. A subsequent search of the trunk of the Subaru produced multiple weapons that had been purchased by Wiseman.

In a post-arrest interview, Ghiassi admitted that Wiseman had illegally purchased weapons on his behalf at both Gander Mountain in Evansville and at Bass Pro Shops in Clarksville. Ghiassi apparently did not, however, acknowledge any particular number of weapons that Wise-man had purchased for him. Separately, Gamblin disclosed that he had taken possession of Ghiassi’s weapons approximately one week earlier.

Foreman subsequently reviewed camera surveillance footage from the Bass Pro Shops in Clarksville. In footage corresponding to a date on which Wiseman said she had purchased a firearm for Ghiassi, Ghiassi could be seen at the firearms counter looking over guns with Wiseman. Ghiassi then left the counter, at which point Wiseman completed the requisite paperwork and purchased a firearm.

A grand jury indicted both Foreman and Wiseman on a variety of gun-related charges. Ghiassi was charged with conspiring with Wiseman to provide false information in connection with the sale of a firearm and to possess a firearm following a felony conviction, in violation of 18 U.S.C. § 371; possession of a firearm following a felony conviction, in violation of § 922(g)(1); and possession of a firearm following a conviction for a misdemeanor crime of domestic violence, § 922(g)(9). Wiseman was charged with, in addition to conspiracy, multiple counts of knowingly making false statements in connection with the sale of a firearm, in violation of 18 U.S.C. § 922(a)(6).

Ghiassi and Wiseman both pleaded guilty. Wiseman pleaded guilty to Count Six of the indictment, one of the false information charges. She was ultimately sentenced to three years’ probation. Ghiassi opted to plead guilty to Count Two, the felon-in-possession charge. There was no plea agreement between Ghiassi and the government.

Ghiassi appeared before the court to change his plea on May 29, 2012. Things proceeded smoothly until Ghiassi voiced disagreement with the government’s proffer of the evidence it would present if the case were to go to trial. During that proffer, Special Agent Foreman had testified, inter alia, that: (1) Wiseman admitted that she had purchased eight firearms at two different locations on Ghiassi’s behalf; (2) he (Foreman) had purchased an AK-47 rifle from Ghiassi; and (3) a total of nine guns had been seized from Ghiassi’s possession during the course of the ATF’s investigation, including the AK-47 that Ghiassi sold to Foreman, seven guns that were recovered from the trunk of Gam-blin’s Subaru, and another handgun that was found in Ghiassi’s bed, beneath his pillow. Ghiassi acknowledged responsibility for the AK-47, the weapon which underlay the felon-in-possession charge to which he was pleading guilty, but he disputed the notion that Wiseman had purchased eight [693]*693other weapons on his behalf. He contended that Wiseman had only purchased one gun for him, which he kept, and that he “had nothing to do with ... the other weapons.” R. 70 at 29. The court pointed out that Wiseman was scheduled for sentencing later that same day, and that Ghiassi’s statement as to the number of guns Wiseman had purchased for him was at odds with her own account, as set forth in the probation department’s pre-sentence report (“PSR”) for Wiseman. In view of the conflict, the court postponed its decision whether to accept Ghiassi’s plea and added that it would question Wiseman further about the number of guns she had purchased for Ghiassi at her sentencing. The court adjourned the plea proceeding to a later date, but ordered the probation department to prepare a pre-sentence report for Ghiassi in the meantime.

On November 2, 2012, the court convened what turned out to be both a continued change-of-plea hearing as well as a sentencing hearing. The court engaged Ghiassi in a fresh change-of-plea colloquy, during which Special Agent Foreman once again outlined the evidence that the government would present if Ghiassi were to proceed to trial. Foreman recounted, in some detail, the evidence he had gathered during the ATF’s investigation, including his purchase of the AK-47 from Ghiassi as well as Wiseman’s statement that she had purchased a total of eight handguns on Ghiassi’s behalf in February and early March of 2011 and that she had subsequently delivered the guns to Ghiassi’s apartment and was reimbursed for them. Foreman added that during his own post-arrest interview, Ghiassi admitted that Wiseman had purchased handguns for him at both Gander Mountain in Evansville and Bass Pro Shops in Clarksville.

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Cite This Page — Counsel Stack

Bluebook (online)
729 F.3d 690, 2013 WL 4647312, 2013 U.S. App. LEXIS 18190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ghiassi-ca7-2013.