United States v. Williams

93 F. App'x 951
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 24, 2004
DocketNo. 02-4361
StatusPublished

This text of 93 F. App'x 951 (United States v. Williams) 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. Williams, 93 F. App'x 951 (7th Cir. 2004).

Opinion

ORDER

Michael J. Williams appeals his conviction on two counts for being a felon in possession of a firearm. He stipulated to a predicate felony conviction and was sentenced to 70 months’ imprisonment on each count, to run concurrently. He now argues that he was improperly charged and convicted of multiple counts , for the same offense; that the evidence was insufficient to support his conviction; and that the evidence and jury instructions resulted in a constructive amendment of his indictment. We affirm.

I.

On April 23, 2002, Michael Williams, then 24 years old, phoned Daniel Clary at the residence of Clary’s girlfriend in Fort Wayne, Indiana. Richard Goodpaster, like [953]*953Clary, a juvenile, was also present at the time of the call. All three were friends or acquaintances. Apparently in anticipation of Williams’ arrival, Clary and Goodpaster moved a pistol and rifle from one location in the house to the front room.

Williams entered the residence of Clary’s girlfriend through the front room and informed Goodpaster and Clary that he was upset with someone and wanted to scare him. As Williams soon disclosed, the person causing his angst was a man called “Buck.” Williams claimed that Buck was angry because Buck thought Williams was sleeping with Buck’s girlfriend. In light of Buck’s anger, Williams vowed to do whatever he had to do to protect himself.

Williams then returned to his car, a maroon Cadillac sedan. Goodpaster and Clary each took a gun and joined Williams. Once in the car, Clary gave Williams the pistol and Goodpaster gave Glary the rifle. The three then drove off to find Buck. Williams was driving, Clary was in the front passenger seat, and Goodpaster was in the back.

Before leaving the house, Goodpaster recalled that Williams stated he was going to shoot the person harassing him. While in the car, Goodpaster heard Williams talking on his cell phone and telling Buck that he was going to shoot him. Shortly thereafter, apparently thinking he spotted a car driven by Buck, Williams stopped the car that was actually occupied by Darron Dean, his wife and six-month-old daughter. According to the Deans, Clary had a rifle sticking out the front window, pointed at the Deans’ car. Williams then got out of the car with a hand behind his back, and approached Darron Dean on the driver’s side. Williams then realized that Dean was not Buck, but instead a casual acquaintance of Williams. After recognizing that he had the wrong man, Williams got back in his car and drove off. Darron Dean later testified that as the cars passed driver-window to driver-window, he saw a gun in Williams’ hand and that Williams put the gun down on the armrest.

After this brush with danger, the Deans drove to their house and immediately called 911. The 911 tape reveals the voice of Darron Dean in the background stating that Williams had a gun, and Dean’s wife stating that the passenger had a rifle. During the 911 call, Williams actually came to the Deans’ house and apologized for the mixup. After he left, the police spotted the Cadillac and apprehended the trio after a high-speed chase and minor crash.

Williams was then indicted on two counts of being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1). At Williams’ trial, Goodpaster testified about Williams’ statement at the house that he was going to kill or shoot the person with whom he was having problems, and about the phone call while in the car telling Buck that he was going to shoot him. Goodpaster finally claimed that he saw both Williams and Clary point the guns at the Dean car. As stated, Mr. Dean testified to seeing the gun in Williams’ hand. Williams did not testify, but during a police interview denied touching the guns.

To establish the interstate nexus element for the offenses, the government presented the testimony of Alcohol, Tobacco, and Firearms (ATF) Agent John Phinney, a firearms expert. Phinney concluded that the pistol used by Williams was manufactured in Connecticut, and thus had to travel in interstate commerce before arriving in Indiana. Likewise, Phinney testified that the rifle in question was manufactured in Germany and had to travel in interstate and foreign commerce before arriving in Indiana.

[954]*954The jury found Williams guilty on both counts. Williams then stipulated to his prior felony conviction and was sentenced to 70 months’ imprisonment on each count, to run concurrently. In addition, the district court ordered Williams to pay a mandatory Special Assessment of $100 on each count. This appeal followed.

II.

Williams first argues that the indictment charged him with two separate counts for the same crime-multiplicity. He claims that the evidence on the two guns (in the light most favorable to the government) shows nothing more than that he possessed the guns at the same time and place.

Multiplicity is the charging of a single offense in separate counts of an indictment. See United States v. Conley, 291 F.3d 464, 469-70, n. 4 (7th Cir.2002). Multiplicity challenges are determined by “whether each count [of the indictment] requires proof of a fact which the other does not.” Id. at 470. If a defendant’s possession of multiple firearms is “simultaneous and undifferentiated,” the government may only charge him with one firearm violation. See United States v. Buchmeier, 255 F.3d 415, 422 (7th Cir.2001).

Williams failed to raise the multiplicity issue before trial. The failure to raise the multiplicity challenge in a timely manner before trial constitutes forfeiture of the issue and forfeited issues are reviewed for plain error. See, e.g., United States v. Jacques, 345 F.3d 960, 962-63 (7th Cir.2003). Thus, Williams must establish plain error that affected his substantial rights and the fairness, integrity or public reputation of the judicial proceedings. See United States v. Bursey, 85 F.3d 293, 296 (7th Cir.1996) (quoting United States v. Penny, 60 F.3d 1257, 1264 (7th Cir.1995)).

The government maintains that, because Williams actually possessed the pistol in his hand, but only constructively possessed the rifle (through Clary), his possession of the respective weapons was sufficiently “differentiated” so as to allow for the two charges without violating multiplicity. Cf. Buckmeier, 255 F.3d at 422. We express no opinion on this argument and need not reach the question of wheth- . er the indictment on two counts constitutes plain error, because, as explained below, assuming that the court committed plain error, the error is nonetheless harmless.

At oral argument, Williams concedes that his appeal merely turns on a $100 mandatory Special Assessment. As stated above, the district court ordered Williams to pay a $100 Special Assessment on each count. Williams does not claim that the number of firearms possessed or the counts charged-one or two-has any impact on his Guideline calculation under U.S. Sentencing Guidelines Manual § 2K2.1.1

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93 F. App'x 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-williams-ca7-2004.