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United States v. Driggers

United States Court of Appeals, Seventh Circuit

January 16, 2019

United States of America, Plaintiff-Appellee,
v.
Nathan Driggers, Defendant-Appellant.

          Argued September 21, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CR 350 - John J. Tharp, Jr., Judge.

          Before Wood, Chief Judge, and Flaum and Hamilton, Circuit Judges.

          WOOD, Chief Judge.

         In the wee hours of the morning on April 12, 2015, thieves stole approximately 104 Ruger firearms from a train sitting in a Chicago railyard. Later that day, according to the government, Nathan Driggers purchased 30 of those stolen guns. He wound up facing charges of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and possession of a stolen firearm in violation of 18 U.S.C. § 922(j). Driggers proceeded to trial, and a jury returned a split verdict, finding him guilty of being a felon in possession of a firearm, but not guilty of possessing a stolen firearm. Driggers now appeals his conviction. He argues that the district court improperly allowed testimony about his co-defendant Warren Gates and gave an erroneous jury instruction on joint possession. Finding no error in the district court's decisions, we affirm Driggers's conviction.

         I

         On April 12, 2015, eight men entered a Chicago railyard, broke into a cargo train parked there, and discovered a cache of Ruger firearms being shipped from a factory in New Hampshire to a distributor in Washington State. By the end of the night, these men had stolen over 100 guns.

         The government did not accuse Driggers of participating in the actual robbery. Instead, its theory (supported by the testimony of one of the robbers, Marcel Turner) was that Terry Walker, another of the robbers, contacted Driggers shortly after the heist to set up a sale of the stolen guns. The same day, Turner and Walker took approximately 30 of the stolen firearms to Driggers's store. They met Driggers there, at which point Driggers and Walker briefly haggled over the price of the guns and then consummated the sale. Though Turner did not know how much Driggers ultimately paid for the 30 guns, Turner received $1, 700 for the six guns that comprised his share.

         The government's other trial evidence attempted to corroborate Turner's account of the gun sale. One inconvenient fact for the prosecution was that Driggers was not on the lease for the store where the gun sale allegedly occurred. But testimony from Driggers's landlord and property manager established that, despite his absence from the lease, the store did in fact belong to him. Their testimony showed that Drig-gers co-leased the store month-to-month with another man, Yashmine Odom. Odom was apparently the store's principal occupant, but Driggers paid the rent for the most part and made at least some repairs.

         Additionally, police searched Driggers's store during their investigation, and ATF Agent Jason Vachy described that search in detail at trial. He explained that the agents found a hodgepodge of merchandise (some of which appeared to be stolen), various personal documents and items belonging to Driggers and Odom, and a gun hidden in a tire in the backroom. That gun's serial number matched one of the guns stolen during the train robbery. There was a fingerprint on that gun, but it did not come from Driggers.

         The government also presented trial testimony and phone records that showed that shortly after Driggers allegedly purchased the 30 stolen guns, he contacted Warren Gates, a co-defendant who pleaded guilty. Before Driggers's trial, Gates admitted to possessing 17 of the guns from the train robbery. Notably, during the first four months of 2015, there were zero contacts between Driggers's and Gates's cell phones, but shortly after the train robbery, there were 46 such contacts. Police searched Gates's storage units and found six of the stolen guns. Gates confessed to possessing these guns and further admitted that he had purchased them, as well as 11 others from the train robbery. In his own case, Gates stated that he purchased those guns from two of the robbers, Elgin Lipscomb and Alexander Peebles; in Driggers's case, the prosecution argued that Gates had bought them from Driggers. The government further urged that the jury could infer from Drig-gers's contacts with Gates and Gates's gun purchases that Driggers possessed and sold guns from the train robbery.

         II

         A

         As we indicated, Driggers raises only two points on appeal: one about the admission of testimony concerning Gates, and the other about the ...


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