September 21, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 CR 350 - John
J. Tharp, Jr., Judge.
Wood, Chief Judge, and Flaum and Hamilton, Circuit Judges.
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
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.
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.
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
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.
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.
indicated, Driggers raises only two points on appeal: one
about the admission of testimony concerning Gates, and the
other about the ...