7th Circuit affirms judgment for felon who used accomplice to buy guns

An Indiana felon who used an accomplice to purchase firearms couldn’t convince the 7^th Circuit Court of Appeals that he was charged with duplicitous counts or that his sentence was improperly calculated.

In July 2018, James Rogers, who had a previous felony conviction, went to a Rural King store in Bedford and handled multiple firearms at a sales counter. After Rogers inspected a few guns, his friend, A.W., approached the sales counter, purchased a shotgun and filled out a Form 4473.

A week later, the pair went to a Rural King store in Bloomington and did the same thing, but this time A.W. purchased a Sig Sauer 400 rifle.

Following the purchases, law enforcement received a tip that Rogers and A.W. were purchasing firearms with gift cards obtained from stolen merchandise that had been returned fraudulently to the store.

While investigating the theft, the officers reviewed the security footage at the Rural King stores and concluded A.W. was purchasing the firearms for Rogers.

During a police interview, A.W. denied knowing the location of the Sig Sauer rifle. However, Rogers claimed the rifle was under the couch in A.W.’s living room and noted it was still inside the box.

Both guns were later found in A.W.’s home.

Rogers subsequently went to trial on two counts of being a felon in possession of a firearm.

After an initial mistrial, a second jury trial was held in July 2021. In presenting its case, the government first assumed that Count I, regarding the shotgun, charged Rogers with possessing the shotgun that he was recorded holding in the surveillance video at the Bedford Rural King.

However, when Rogers’ attorney cross-examined the store associate who had sold the shotgun to A.W., it became evident that two shotguns were involved in the Bedford incident. The first was the shotgun that Rogers personally handled, and the second was the one retrieved by the manager from the back of the store and sold to A.W.

A law enforcement witness also admitted at trial that they were not aware the incident had involved two shotguns in the store.

After a colloquy with counsel, the district court determined it was clear that a grand jury intended to indict Rogers with possession of the gun purchased by A.W., noting the charges handed down by the grand jury were clear that it focused on a theory of joint possession of the purchased weapon.

Then, to avoid any unfairness from lack of notice, the court required the government to choose which firearm it was going to prove. The government chose to prove, under a theory of joint possession, that Rogers possessed the Mossberg purchased by A.W.

Rogers was found guilty as charged, and a presentence report recommended a base offense level of 20 because Count II, the Sig Sauer count, involved a firearm capable of accepting a high-capacity magazine.

Rogers objected to the recommendation, stating he did “not believe a high capacity magazine [was] involved in his case.” In his view, the jury’s verdict was based on “what happened at the gun counter, which did not include any kind of a magazine whatsoever.”

The government responded that it presented evidence of joint possession of the Sig Sauer rifle for Count II and noted that a case agent confirmed that it was sold with a 30-round magazine. In its supplemental addendum to the PSR, the probation department also noted the purchase of the high-capacity magazine was confirmed by the case agent.

The district court overruled Rogers’ objection, finding a clear connection between him and the Sig Sauer rifle and noting that he had provided specific instructions to law enforcement on where to find it, and those instructions were correct.

Rogers was ultimately sentenced to almost six years in prison.

On appeal, the 7^th Circuit affirmed Rogers’ conviction and sentence, concluding the district court properly identified the risk for duplicitous counts at trial and cured the problem with its final jury instructions, and used the correct base offense level when calculating the guidelines range.

“The grand jury charged Mr. Rogers with possessing one Mossberg shotgun,” Senior Judge Kenneth Ripple wrote. “At trial, it became apparent that the Bedford incident involved two Mossberg shotguns. Nevertheless, the record simply does not support the conclusion that the evidence at trial established a crime different from the one charged in his indictment.

“… Here, Mr. Rogers’s offense under Count 1 was the possession of ‘any firearm’ in violation of § 922(g),” Ripple continued. “The jury unanimously agreed that he was a felon in possession of ‘any firearm’ after the district court instructed the jurors to consider the purchased Mossberg shotgun for Count 1. The district court’s instructions obviated any question about adequate notice.”

The 7^th Circuit also concluded that the record firmly protected Rogers against further prosecution, that Rogers waived his argument that a high-capacity magazine was not involved in his case and that the correct base offense level was used in his sentencing calculation.The case is United States of America v. James Rogers, 21-2638.