Argued September 16, 2014
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cr-00098-WTL-MJD-1 -- William T. Lawrence, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Bradley P. Shepard, Attorney, MaryAnn T. Mindrum, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.
For WILLIAM BOSWELL, Defendant - Appellant: Sara J. Varner, Attorney, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, IN.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
Bauer, Circuit Judge
A jury convicted defendant-appellant, William Boswell (" Boswell" ), of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Boswell under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e), to 235 months--a bit over nineteen and a half years--imprisonment, with a five-year term of probation to follow. Boswell challenges both his conviction and sentence on appeal. In regard to his conviction, he argues that the district court committed reversible error when it permitted the government to elicit testimony regarding a tattoo of a firearm that he had on his neck. As to his sentence, Boswell maintains that the prior convictions used to characterize him as an armed career criminal under § 924(e) were not charged in the indictment and proven beyond a reasonable doubt to the jury, in violation of his Fifth and Sixth Amendment rights. For the reasons set forth in this opinion, we affirm.
On June 20, 2012, a federal grand jury returned a single-count indictment charging Boswell with being a felon in possession of two firearms (two revolvers) on January 26, 2011. The charge stemmed
from an investigation of Boswell that law enforcement launched in December 2010. Boswell proceeded to trial on the charge and, after two days of trial, the jury found him guilty. The following facts are recited from the testimony and evidence produced at trial.
In December 2010, the Anderson, Indiana, Police Department received a tip from Jasmine White (" White" ) that Boswell, a prior convicted felon, was in possession of firearms available for purchase. White testified that she first met Boswell in 2010, while working as a bartender at a bar that Boswell frequented. She became more familiar with Boswell after he began dating one of her friends, Chelsea Cunningham (" Cunningham" ). Eventually, Boswell and Cunningham began staying nights at White's residence, and ultimately Cunningham took over White's lease, living in the home with Boswell, her son, and Monte Laswell (Boswell's cousin) thereafter. White testified that she began to observe Boswell treating Cunningham and her son poorly and she became concerned for Cunningham's safety. For this reason, White decided to alert the police upon discovering that Boswell was trying to sell firearms.
On the basis of White's tip, law enforcement planned a sting operation. Special Agent John O'Boyle (" O'Boyle" ) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ) headed the operation. The initial plan called for Special Agent Jeremy Godsave (" Godsave" ), also ATF, to make an undercover purchase of firearms from Boswell directly. However, when Boswell indicated to White that he would only sell to someone he knew, the plan changed--White agreed to make the purchase while accompanied by Godsave, who would remain at a distance. The operation went forward in this manner on January 26, 2011:
To set-up the firearms transaction, White made a recorded phone call to Boswell in the presence of O'Boyle and Godsave. She asked Boswell if he was still home and if he still had guns to sell. The material part of the call is as follows:
White: Ok, so I just come by and grab them then and just bring them back to you?
Boswell: Yeah, you can, yeah you can come by and grab them. That's what I'm telling you, you can come by and get them. I understand he ain't going to pay for them. He's gotta see what he getting him.
Thereafter, White was equipped with an audio and visual recorder on her person, and Godsave was outfitted with an audio recording device. White and Godsave then drove to Boswell's residence. Upon arrival, White walked up to the front door of the home, while Godsave waited in the car parked out front. Boswell met White at the door and let her inside. White reported that Cunningham, Cunningham's mother and son, and Monte Laswell were also present in the home. Boswell led White into the kitchen, where he reached into a cabinet and retrieved a brown paper sack, which contained the two firearms listed in the indictment. Boswell gave the guns to White and she made her way out. Upon her return to the undercover vehicle, White gave the guns to Godsave and made a second recorded phone call to Boswell after Godsave had inspected the weapons. Both White and Godsave spoke with Boswell during this call, which concerned how the firearms worked, whether they were ...