United States v. Inglese, Brian L.

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1203

United States of America,

Plaintiff-Appellee,

v.

Brian L. Inglese and Earl F. Baumhardt, Jr.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 611--George M. Marovich, Judge.

Argued September 28, 2001--Decided March 8, 2002

Before Posner, Easterbrook, and Kanne,

Circuit Judges.

Kanne, Circuit Judge. Defendants Brian

Inglese and Earl Baumhardt were convicted

of firearm offenses pursuant to 18 U.S.C.

secs. 2 and 1001(a)(3). The district

court sentenced Inglese to 30 months

imprisonment and Baumhardt to 15 months

imprisonment. Defendants appeal and we

affirm.

I. History

A. Background

In 1998, both Inglese and Baumhardt

worked at B & H Sports, Ltd., a

federally-licensed gun store in Oak Park,

Illinois. During that time, Illinois law

required individuals to obtain a

Firearms’ Owner’s Identification ("FOID")

card in order to purchase guns from a gun

store such as B & H. Some individuals,

such as convicted felons, were barred

from obtaining FOID cards. In addition,

Illinois law required there to be a

waiting period between the time the

customer ordered the gun and the time the

customer took possession of the gun.

During the waiting period, the gun shop

was required to run a background check on

the customer to determine whether the

customer possessed a valid FOID card and

had ever been convicted of a felony.

Federal law required gun shops to record

the customer data and results of the

background check in an Acquisition and

Disposition Book ("A & D Book").

People without FOID cards were able to

circumvent Illinois law and obtain

firearms through "straw purchases." That

is the purchase of a firearm by one

individual (the "straw purchaser") on

behalf of another individual (the "actual

buyer"). This allowed the actual buyer to

obtain a gun even though he was legally

barred from buying one. When a customer

ordered a gun at B & H, a store employee

would create a sales receipt containing

the customer’s information and the

transaction details and would run a

background check on that customer. If the

transaction was a straw purchase,

however, the sales receipt would show the

straw purchaser’s information and the

background check would be on the straw

purchaser, rather than on the actual

buyer.

After the background check was run and

the waiting period had passed, the

customer would return to B & H to pick up

his gun. A store employee would then use

the sales receipt to create an ATF

firearms transaction form ("ATF Form")

and to complete the A & D Book entry. The

customer would fill out the top of the

ATF Form, providing personal information

and averring that he was the actual

buyer. Each B & H gun transaction,

therefore, would consist of two parts.

The first part consisted of the customer

agreeing to purchase a gun and of the

store employee creating a sales receipt

(the "front-end"). The second part

consisted of the customer taking

possession of the gun and filling out the

ATF Form and of the store employee

signing the ATF Form and completing the A

& D Book entry (the "back-end").

With a straw purchase, the information

on the sales receipt would cause the ATF

Form and the A & D Book entry to contain

false entries. The false entries

prevented the ATF from determining

whether convicted felons were purchasing

guns and made it impossible to trace a

gun to the actual buyer.

In an effort to stop these illegal gun

purchases from occurring, the City of

Chicago initiated "Operation Gunsmoke," a

sting operation where Chicago Police

officers would assume fake identities,

obtain fake FOID cards corresponding with

the assumed identities, and make straw

purchases at gun shops. While at the gun

shops, the officers would make statements

and behave in a manner that would

indicate that they were engaging in straw

purchases. Thus, if a gun shop sold a gun

to a Chicago Police officer, it could be

charged with violating federal law

(knowingly creating false ATF Forms and A

& D Book entries) and with violating

state law (knowingly selling a gun to an

actual buyer without an FOID card).

On twelve occasions between August 10

and November 9, 1998, Chicago Police

officers visited B & H as part of their

sting operation. The police officers

purchased twenty-five guns from B & H

during these visits. As a result of these

alleged straw purchases, a grand jury

returned a multiple-count superceding

indictment against B & H, Inglese, and

Baumhardt. For every alleged straw

purchase, the indictment contained two

counts. One count charged B & H and the

respective store employee with "knowingly

and willfully ma[king] and us[ing], and

caus[ing] to be made and used, false

writings and documents knowing that they

contained materially false, fictitious,

and fraudulent statements and entries" in

violation of 18 U.S.C. secs. 2 and

1001(a)(3)./1 The other count charged B

& H with knowingly delivering a gun to an

individual in violation of state law

pursuant to 18 U.S.C. sec. 922(b)(2) and

charged the respective store employee

with aiding and abetting this

violation./2 Inglese was charged with

participating in four straw purchases,

and Baumhardt was charged with

participating in two straw purchases. In

addition, the indictment charged B & H

and Inglese with three counts of

knowingly transferring guns that were

going to be used to commit a drug

trafficking crime, in violation of 18

U.S.C. sec. 924(h) ("drug trafficking

counts").

B. The Trial

At the joint trial, the government’s

first witness was Chicago Police Officer

Ron Korzeniewski, who testified to the

following: On August 10, 1998, while on

undercover duty, he went to B & H and

portrayed himself as "Ronald Czaja."

While there, Inglese offered to sell him

two 9-millimeter handguns. Officer

Korzeniewski then presented Inglese with

his FOID card, which bore the name

"Ronald Czaja." Officer Korzeniewski told

Inglese that he lost his previous handgun

while running from the police, but that

he had never been convicted of a felony.

He also told Inglese, "I think I figured

out who ratted me out to the cops where

I lost my 9 [millimeter]," and that he

was going "to get even with him." Officer

Korzeniewski and Inglese also discussed a

gun with a laser sight about which

Officer Korzeniewski asked, "If I point

the gun at somebody’s stomach, it will

hit them in the chest?" Inglese replied,

"Yeah." Inglese then began filling out a

sales receipt and asked Officer

Korzeniewski what his occupation was.

Officer Korzeniewski responded that he

"hung out in the streets," but told

Inglese to put down "sales." Inglese

wrote "sales" as "Czaja’s" occupation and

"target shooting" as his purpose for

buying the guns on the sales receipt,

even though he and Officer Korzeniewski

had never discussed target shooting.

Officer Korzeniewski returned to B & H

on August 14, 2000 to pick up his guns.

He was accompanied by undercover Chicago

Police Officer Bernard Kelly, who

portrayed FOID cardholder "Pete Cooney."

When Inglese presented Officer

Korzeniewski with one black 9-millimeter

gun and one gray and black 9-millimeter

gun, Officer Korzeniewski replied, "I

wanted two shiny identical guns, so when

I draw down, they will know it’s me,

they’ll know I mean business." Inglese

agreed to sell Officer Korzeniewski four

Lorcin 9-millimeter guns instead.

Officer Korzeniewski also testified that

on August 14, Officer Kelly told Inglese

that he needed a gun "for his girls"

because "they were getting ripped off and

needed protection." Inglese agreed to

sell Officer Kelly two Jennings .22

caliber pistols. The two officers then

left B & H with the four Lorcin 9-

millimeter guns.

Officer Kelly testified to the

following: On August 19, 2000, he and

Chicago Police Officer Robert McClain

went to B & H. Officer Kelly portrayed

FOID cardholder "Pete Cooney," and

Officer McClain portrayed non-FOID

cardholder "Jeff." When they arrived,

Inglese told them that "Ron" had just

been in the store--referring to Officer

Korzeniewski. Officer Kelly responded

that "Ron" owed him some money and that

he "got to get a Tec for his ass."

Officer Kelly then agreed to purchase an

Intratec 9-millimeter gun ("Tec-9").

Officer Kelly testified that based on his

experience, the Tec-9 was popular with

drug dealers. On the sales receipt,

Inglese wrote that "Cooney’s" purpose in

making the purchase was "target

shooting," even though he and Officer

Kelly had not discussed target shooting.

Inglese also wrote that "Cooney’s"

occupation was "laborer." The officers

then left the store with the two .22

caliber pistols that Officer Kelly had

agreed to purchase on August 14.

Officer Kelly testified that he and

Officer McClain went to B & H again on

September 9, 2000. While there, Inglese

asked Officer McClain if he had obtained

an FOID card, to which Officer McClain

responded that he could not obtain one

"for a bunch of reasons." Inglese then

handed Officer McClain a Calico semi-

automatic rifle and explained to him how

it worked. Officer McClain told Inglese

that he wanted to purchase the gun.

Officer Kelly also told Inglese that he

wanted to purchase a Beretta .45 caliber

gun. Officer McClain paid the deposit for

both guns. Because Officer McClain did

not have an FOID card, however, Officer

Kelly signed the sales receipt.

Therefore, Inglese performed the

background check on "Cooney" (the name on

Officer Kelly’s FOID card) rather than on

Officer McClain’s undercover identity.

Officer Kelly testified that when he and

Officer McClain returned to B & H a few

days later, Inglese again asked Officer

McClain if he had obtained an FOID card.

Officer McClain responded that he had not

and that therefore "Cooney" would be

handling all of the paperwork. When

Inglese presented the bill for the Calico

rifle and Beretta .45 caliber handgun,

Officer Kelly told Officer McClain to pay

for the Calico rifle, as that was his gun

and not Officer Kelly’s. Officer McClain

then took out $500 from his pocket (the

remaining balance on the Calico rifle)

and handed it to Inglese. Officer Kelly

paid for the remaining balance on the

Beretta .45 caliber gun. Officer Kelly

also testified that when he filled out

the ATF Forms for the two guns he and

Officer McClain purchased that day, he

indicated that "Cooney" was the actual

buyer of both guns, which was false

because Officer McClain was the actual

buyer of the Calico rifle.

Officer Kelly also testified about

events that provided the basis for two of

the four straw purchase counts against

Baumhardt. On September 17, 2000, he and

Officer McClain went to B & H. Howard

Zelenka (the co-owner of B & H) asked

Officer McClain if he had received his

FOID card yet, to which Officer McClain

testified that he had not. This

conversation took place in Baumhardt’s

presence. Baumhardt showed Officer

McClain a .40 caliber gun, and Officer

McClain agreed to purchase this gun.

Officer Kelly agreed to purchase two

different guns. When Baumhardt was

preparing the sales receipt for these

three guns, Officer Kelly told Officer

McClain to give him money for the gun

that Officer McClain was purchasing. When

Officer McClain reached into his pocket

and took out several hundred dollars,

Baumhardt asked Officer Kelly if he was

just borrowing that money, or if Officer

McClain was paying for some of the guns.

Before Officer Kelly could answer the

question, Baumhardt walked away from the

two officers and answered the phone. When

Baumhardt returned, Officer McClain

handed Baumhardt $600 (the amount of the

deposit for all three guns). Officer

Kelly then signed the sales receipt.

Officer Kelly also testified that

Baumhardt wrote "laborer" as "Cooney’s"

occupation and "target shooting" as his

purpose for purchasing the guns.

On September 21, 2000, when Officers

Kelly and McClain returned to B & H to

pick up the three guns that they had

ordered on September 17, Inglese was at

the store, but Baumhardt was not. Inglese

brought the officers their guns, and

Officer Kelly paid the balance on the

guns. Officer Kelly testified that he

filled out the ATF Form for these

purchases and indicated that he was the

actual buyer of all three of the guns,

and that Inglese signed the ATF Form and

completed the A & D Book entry. Officer

Kelly also testified that the information

he provided on the ATF Form was erroneous

because Officer McClain was the actual

buyer of one of the .40 caliber guns.

Officer McClain also testified at trial

and corroborated Officer Kelly’s

testimony in full.

The government’s next witness was

Yolanda Webb, who testified pursuant to a

grant of immunity. Webb testified about

several straw purchases that she engaged

in with her boyfriend Andre Smith. Smith

could not obtain an FOID card and asked

Webb to obtain a card and purchase guns

for him. Therefore, Webb obtained a valid

FOID card and went to B & H on several

occasions with Smith. For example, on

September 16, 2000, Webb and Smith went

to B & H and were helped by Baumhardt.

Smith pointed out two guns that he wanted

and asked Webb to ask Baumhardt how much

they cost. After Baumhardt told her the

price of the guns and the amount of the

deposit, Smith reached into his pocket

and took out the amount of money for the

deposit. While Baumhardt was watching

them, Smith then handed the money to

Webb, who immediately handed it to

Baumhardt. Webb testified that Baumhardt

then filled out a sales receipt for the

guns, using the information on Webb’s

FOID card. The sales receipt indicated

that Webb’s purpose for buying the guns

was "target shooting," even though she

and Baumhardt had never discussed target

shooting. Webb testified that a few days

later, she and Smith returned to B & H to

pick up the guns and were assisted by

Baumhardt again. Baumhardt asked Webb to

fill out an ATF Form and asked for

payment. Smith then took money out of his

pocket and gave it to Webb, who

immediately gave the money to Baumhardt.

Both Inglese and Baumhardt also

testified at trial. They claimed that

virtually everything the three officers

and Webb had said when they testified was

false. For example, Inglese testified

that on September 16 and 19, Webb had

come into B & H alone, had picked out the

guns herself, and had paid for the guns

with money that she had taken out of her

purse. Further, he testified that when

Officer Korzeniewski came into B & H on

August 10, he told Inglese that he wanted

guns that he could use for target

shooting and that he never mentioned

anything about getting "ripped off" or

needing to get even with someone who

"ratted him out." Inglese also testified

that on August 14, Officer Kelly told him

that he was a "construction laborer" and

that he never said anything about needing

a gun to "protect his girls." He also

denied that Officer Kelly told him that

he was going to get a "Tec for [Czaja’s]

ass," or that Officer McClain ever paid

for guns for which "Cooney" was the

actual buyer. Finally, Inglese testified

that there was nothing suspicious about

the purchases that Officers Korzeniewski

or Kelly made, and that if he had heard

any of the comments that the officers

claimed to have made, he would have

terminated the sales.

Baumhardt testified that on September

16, Webb came into the store alone,

picked out the guns that she wanted, and

paid for them with money that she took

out of her purse. He also testified that

on September 19, he was not in the store

and did not complete the bottom of the

ATF Form or the A & D Book entry for her

purchase. When shown the ATF Form for

Webb’s September 16 and 19 purchase, he

testified that the signature on the ATF

Form was Inglese’s. Baumhardt also denied

seeing or hearing anything suspicious

concerning the purchases made by Officers

Korzeniewski or Kelly.

After the close of the evidence and

closing arguments, the district court

instructed the jury. Because each of the

crimes that Inglese and Baumhardt were

charged with had a mens rea requirement

of "knowing" behavior, the district court

instructed the jury on what this meant

and gave the following instruction (the

"ostrich instruction"):

When I use the word "knowingly" or the

phrase the defendant "knew" as used in

these instructions, it means that the

defendant realized what he was doing and

was aware of the nature of his conduct

and did not act through ignorance,

mistake or accident. Knowledge may be

proved by the defendant’s conduct and by

all of the facts and circumstances

surrounding the case.

You may infer knowledge from a

combination of suspicion and indifference

to the truth. If you find that a person

had a strong suspicion that things were

not what they seemed or that someone had

withheld some important facts, yet shut

his eyes for fear of what he would learn,

you may conclude that he acted knowingly

as I have used that word. You may not

conclude that the defendant had knowledge

if he was merely negligent in not

discovering the truth.

The jury convicted Inglese of the eight

counts associated with his participation

in four straw purchases and convicted

Baumhardt of the four counts associated

with his participation in two straw

purchases. The jury acquitted Inglese on

the drug trafficking counts.

C. Sentencing

The district court sentenced Baumhardt

to 15 months imprisonment to be served

concurrently on each of the four counts

for which he was found guilty. The

district court sentenced Inglese to 30

months imprisonment to be served

concurrently on each of the eight counts

for which he was found guilty. In

sentencing Inglese, the district

courtincreased his offense level by four

levels pursuant to United States

Sentencing Guideline sec. 2K2.1(b)(5).

That Guideline applies to a defendant who

"transferred any firearm or ammunition

with knowledge, intent, or reason to

believe that it would be used or

possessed in connection with another

felony offense." U.S.S.G. sec.

2K2.1(b)(5).

II. Analysis

Inglese and Baumhardt raise the

following issues on appeal: 1) It was

reversible error for the district court

to give the ostrich instruction; 2) the

district court abused its discretion in

admitting certain evidence at trial; 3)

the district court erred in applying

Sentencing Guideline sec. 2K2.1(b)(5) to

Inglese’s sentence; 4) the district court

violated Baumhardt’s right to conflict-

free counsel; and 5) there was

insufficient evidence to support

Baumhardt’s conviction.

A. Ostrich Instruction

Inglese and Baumhardt contend that the

district court erred in giving the

ostrich instruction to the jury. However,

because neither of them objected to the

instruction at trial, they have forfeited

this argument on appeal, and we review

for plain error. See, e.g., United States

v. Griffin, 84 F.3d 912, 924-25 (7th Cir.

1996). Under plain error analysis, the

defendants must show the following: 1)

that the district court committed an

error; 2) that the error was clear or

obvious; and 3) that the error affected

substantial rights. See, e.g., United

States v. Olano, 507 U.S. 725, 732-34,

113 S. Ct. 1770, 123 L. Ed. 2d 508

(1993). Thus, we must first determine

whether the district court erred in

giving the ostrich instruction. See id.

at 732-33. When addressing such a claim,

this court views the evidence in the

light most favorable to the government.

See United States v. Craig, 178 F.3d 891,

896 (7th Cir. 1999).

An ostrich instruction informs the jury

that actual knowledge and the deliberate

avoidance of knowledge are the same

thing. See id. The district court may

give an ostrich instruction "where the

defendant is prosecuted under a criminal

statute with a ’knowingly’ mens rea

component, and he or she claims [1] a

lack of guilty knowledge and [2] there

are facts and evidence that support an

inference of deliberate ignorance."

United States v. McClellan, 165 F.3d 535,

549 (7th Cir. 1999) (quotation omitted).

At trial, Inglese and Baumhardt clearly

claimed that they did not know that the

police officers and Webb engaged in straw

purchases. Therefore, we focus on whether

there was sufficient evidence that they

were deliberately ignorant of this fact

to justify the ostrich instruction.

Deliberate ignorance may be established

by "overt, physical acts as well as by

purely psychological avoidance, a cutting

off of one’s normal curiosity by an

effort of will." Craig, 178 F.3d at 896

(quotation omitted).

For example, in United States v. Wilson,

134 F.3d 855, 858 (7th Cir. 1998), the

defendant was convicted of possessing

cocaine with the intent to distribute.

The government alleged that at a co-

defendant’s direction, the defendant

knowingly loaded a van with several large

trash bags full of cocaine, drove the van

to a nearby street, parked it, left the

keys inside, and watched someone drive

the van away. See id. at 868. At trial,

the defendant admitted that those facts

were true, but testified that he was not

aware that the trash bags contained

cocaine. See id. The district court found

that the defendant was faced with

suspicious circumstances--for example,

being asked to load large trash bags into

a van and to leave the van in the street

with the keys inside of it. See id.

Because the defendant failed to ask

follow-up questions or take any other

action in the face of these suspicious

circumstances, the district court gave an

ostrich instruction to the jury. See id.

We affirmed, holding that the defendant’s

testimony denying knowledge in the face

of suspicious circumstances was

sufficient to justify the ostrich

instruction. See id.; see also Craig, 178

F.3d at 897-98 (holding that defendant’s

"failure to ask questions that would

certainly arise from the circumstances .

. . is evidence that could lead a jury to

determine" that the defendant

deliberately avoided learning the truth)

(citation omitted).

In the present case, the record is

replete with evidence for the jury to

conclude that both Inglese and Baumhardt

were deliberately ignorant. For example,

Officers Kelly and McClain both testified

that they told Inglese and Baumhardt that

Officer McClain did not possess an FOID

card, but on several occasions, Officer

McClain paid for guns that were

purportedly being purchased by Officer

Kelly. Further, Webb’s testimony

indicated that Smith pointed out certain

guns, directed Webb to ask questions

about these guns, and paid for the guns,

even though Webb filled out the

paperwork. Finally, Officer Korzeniewski

testified that he made several self-

incriminating comments, such as that he

was going to get even with whomever

ratted him out, and that Inglese still

put down "sales" as his occupation on the

paperwork. In the face of these

suspicious circumstances, Inglese and

Baumhardt did not ask any follow-up

questions or take any action to find out

whether straw purchases were occurring.

In fact, Inglese testified that as long

as the FOID cardholder told him that the

guns were for him, he would not ask any

follow-up questions. Thus, as in Wilson

and Craig, Inglese and Baumhardt’s

failure to take any action in the face of

the suspicious circumstances that were

presented to them warranted the giving of

an ostrich instruction.

B. Evidentiary Issues

Next, Inglese and Baumhardt contend that

the district court made several erroneous

evidentiary rulings that require reversal

of their convictions. All of their

evidentiary arguments are meritless and

warrant minimal discussion. First, they

argue that the district court admitted

inadmissible hearsay when Webb testified

that her boyfriend Smith told her that he

had been in jail, that he was a member of

the Gangster Disciples street gang, and

that he was unable to obtain an FOID

card. We hold that the district court did

not abuse its discretion in ruling that

this evidence was not hearsay, as it was

offered for the effect it had on the

listener--to explain why Webb went to B &

H to purchase guns for Smith. See, e.g.,

United States v. Linwood, 142 F.3d 418,

425 (7th Cir. 1998) (holding testimony

was not hearsay where offered to show its

effect on witness).

Next, Inglese and Baumhardt assert that

the district court admitted unduly

prejudicial evidence when it allowed

Officer Kelly to testify that Tec-9 guns

were popular with drug dealers. This

evidence was relevant to the drug

trafficking counts as it tended to show

that Inglese sold firearms that he knew

were going to be used in the commission

of a drug trafficking crime. Further,

this evidence was relevant to the straw

purchase counts as it tended to show that

when Inglese and Baumhardt put down

"sales" and "laborer" as the undercover

officers’ occupations on the paperwork,

they knew that this information was

erroneous. The district court did not

abuse its discretion in finding that any

prejudice stemming from the admission of

this evidence did not substantially

outweigh its relevance. See United States

v. Medina, 755 F.2d 1269, 1274 (7th Cir.

1985) (noting that district court’s

determination on this issue is afforded

"great deference").

Inglese and Baumhardt also allege that

the government improperly referred to

certain guns as "machine pistols" and

"military-style assault rifles" in its

opening statement. Without citing any

authority, they allege that the use of

these terms was "highly inflammable"

because the government used these terms

in connection with guns that were not

technically machine guns or assault

rifles. Because neither defendant

objected to the use of these terms, we

review for plain error. See Griffin, 84

F.3d at 924-25. The district court

instructed the jury that opening

statements were not evidence. We have no

reason to believe that the jury

improperly relied on these statements,

and the defendants have offered nothing

to suggest otherwise. See, e.g., United

States v. Saadeh, 61 F.3d 510, 521 (7th

Cir. 1995). Therefore, the district court

did not commit plain error by failing to

strike these references.

Finally, Inglese and Baumhardt argue

that the government’s closing argument

was improper because it said that Inglese

offered to sell Officer Kelly a "machine

gun" and there was no evidence of that

fact. Defense counsel objected to the use

of the term "machine gun," and the

district court sustained this objection.

Even if the government’s comment was

improper, because Inglese and Baumhardt

received the relief that they requested,

there is no adverse ruling about which

they can complain. See United States v.

Whitaker, 127 F.3d 595, 606-07 (7th Cir.

1997) (holding that government’s improper

comment during closing argument was not

reversible error where the district court

sustained defendant’s objection to the

comment). Further, given the totality of

the circumstances, the government’s

comments did not have the inflammatory

impact necessary to warrant a reversal.

See id.

C. Sentencing Enhancement

Inglese’s next argument is that the

district court improperly enhanced his

sentence under U.S.S.G. sec. 2K2.1(b)(5).

That Guideline applies to any defendant

who "transferred any firearm or

ammunition with knowledge, intent,

orreason to believe that it would be used

or possessed in connection with another

felony offense." Id. The district court

found that Inglese had "reason to

believe" that "one or more of [the] guns"

that he sold to Officers Korzeniewski or

Kelly "would be used in the commission of

a felony." We review this finding for

clear error. See United States v.

Jemison, 237 F.3d 911, 918 (7th Cir.

2001).

In Jemison, the defendant planned to

sell ten guns that he purchased from an

Illinois gun store to members of the

Gangster Disciple street gang. See id. at

913. The district court found that the

defendant "had reason to believe" that

the guns would be used for felonious

activities and enhanced the defendant’s

sentence by four levels pursuant to

U.S.S.G. sec. 2K2.1(b)(5). See Jemison,

237 F.3d at 915. On appeal, the defendant

argued that the district court erred in

enhancing his sentence because the

government did not show that he "had

reason to believe that the [guns] would

be used in a specific offense in the

future." Id. at 918 (quotation omitted)

(emphasis added). We affirmed the

sentencing enhancement even though the

district court made no findings regarding

whether the defendant knew which of the

ten guns he sold would be used to commit

a felony or which specific felony the

gang members would commit. See id. We

held that the defendant "had reason to

believe" that the guns he sold would be

used to commit a felony because the

Gangster Disciples were "an infamous

nationwide criminal organization" and

because of the connection between street

gangs and felonies. Id.

In our case, there is ample evidence to

suggest that Inglese "had reason to

believe" that at least one of the guns he

sold to the undercover police officers

would be used to commit a felony.

U.S.S.G. sec. 2K2.1(b)(5). For example,

Officer Kelly told him that he needed to

buy a Tec-9 with which to shoot Czaja.

Further, Officer Korzeniewski told him

that he needed to buy guns in order to

get even with the person who ratted him

out to the police. He also told Inglese

that he wanted identical guns "so that

when [he draws] down, they would know

it’s [him], they’ll know [he] mean[s]

business." Finally, he asked Inglese, "if

I point the gun at somebody’s stomach, it

will hit them in the chest?" These

comments clearly gave Inglese "reason to

believe" that the undercover police

officers would commit felonies with the

guns that they purchased from B & H.

U.S.S.G. sec. 2K2.1(b)(5). That the

district court did not make specific

findings regarding whether Inglese knew

which guns would be used to commit which

felonies is irrelevant. See Jemison, 237

F.3d at 918.

D. Conflict-Free Counsel

On appeal, Baumhardt argues that he

received ineffective assistance of

counsel because his trial counsel was not

"free from conflicts of interest." Wood

v. Georgia, 450 U.S. 261, 271, 101 S. Ct.

1097, 67 L. Ed. 2d 220 (1980). However,

Baumhardt has waived the right to raise

this issue on appeal. At trial, Joel

Ostrander represented both Baumhardt and

B & H but not Inglese. The government

filed a motion to disqualify Ostrander

from his joint representation because

Baumhardt and B & H appeared to have

conflicting interests. In response,

Ostrander claimed that both of his

clients wished to waive their right to

conflict-free counsel and had signed a

waiver to that effect. The waiver form

indicated that Baumhardt had discussed

this issue with Ostrander, that he

understood the potential conflict, that

he understood his Constitutional rights,

and that he wished to waive any potential

conflicts of interest and remain

represented by Ostrander. More

importantly, Baumhardt averred: "I

understand that this waiver of conflict-

free counsel includes the waiver of my

right to claim ineffective assistance of

counsel on this ground, either on appeal

or in any post-conviction proceeding."

After reviewing the waiver form, the

district court engaged in the following

colloquy with Baumhardt:

The Court: Mr. Baumhardt, did you read the

motion [to disqualify Ostrander]?

Baumhardt: Yes sir.

The Court: Do you understand what the

problem is?

Baumhardt: Yes sir.

The Court: Real or imaginary?

Baumhardt: Yes sir.

The Court: Did you discuss it with Mr.

Ostrander?

Baumhardt: Yes sir.

The Court: Did you discuss it with anyone

else?

Baumhardt: No sir.

The Court: Did you discuss it with Mr.

Zelenka [the co-owner of B & H]?

Baumhardt: No sir.

The district court then accepted the

waiver and denied the government’s

motion.

On appeal, Baumhardt contends that his

appellate waiver should not be enforced.

However, we have held that appellate

waivers are enforceable if made knowingly

and voluntarily and if not amounting to

empty promises. See United States v.

Williams, 184 F.3d 666, 668 (7th Cir.

1999); United States v. Wegner, 58 F.3d

280, 281-82 (7th Cir. 1995). "Most

waivers are effective when set out in

writing and signed." Wegner, 58 F.3d at

282. In Wegner, the defendant entered

into a written plea agreement, one

provision of which stated: "I expressly

waive any and all rights . . . to appeal

my sentence." Id. at 281. We held that

the appellate waiver was enforceable

because it was made knowingly and

voluntarily, as evidenced by the fact

that the waiver provision was express,

was in writing, and was signed by the

defendant. See id. Further, we noted that

the defendant had bargained for a benefit

(the prosecutor’s recommendation for a

more lenient sentence) in exchange for a

detriment (a guilty plea and an appellate

waiver), and after receiving his

bargained-for benefit, the defendant was

merely seeking to repudiate his part of

the deal. See id. at 282-83.

As in Wegner, Baumhardt’s appellate

waiver was express ("I understand that

this waiver of conflict-free counsel

includes the waiver of my right to claim

ineffective assistance of counsel . . .

on appeal.") was in writing and was

signed by Baumhardt. Further, the waiver

form and colloquy conducted by the

district court indicate that Baumhardt’s

waiver was voluntary and knowing and was

not an empty promise. Therefore, as in

Wegner, we hold that Baumhardt’s

appellate waiver is enforceable.

E. Insufficiency of the Evidence

Baumhardt’s last argument on appeal is

that the evidence was insufficient for

the jury to convict him on two of the

straw purchase counts, which charged that

he "knowingly and willfully made and

used, and caused to be made and used,

false writings and documents." 18 U.S.C.

secs. 2, 1001(a)(3) (emphasis added).

These two counts related to the alleged

straw purchases that took place at B & H

on September 16 and 19 with Webb and on

September 17 and 21 with Officer Kelly.

We may overturn the jury verdict "only if

the record contains no evidence from

which the jury could have found guilt

beyond a reasonable doubt." United States

v. Viezca, 265 F.3d 593, 597 (7th Cir.

2001) (quotation omitted). In addition,

in assessing Baumhardt’s claim, we view

the evidence in the light most favorable

to the government and draw all reasonable

inferences in its favor. See id.

Baumhardt does not dispute that there

was sufficient evidence to implicate him

in the front-ends of the September 16 and

17 transactions. Rather, he argues that

because he did not complete the ATF Forms

and A & D Book entries for these

purchases, the convictions on these two

counts cannot lie. Baumhardt’s argument,

however, ignores the language of the

indictment and the jury instructions. The

indictment charged that Baumhardt

"knowingly and willfully made and used,

and caused to be made and used, false

writings and documents." 18 U.S.C.

secs. 2, 1001(a)(3) (emphasis added).

Further, the jury instructions stated

that a "statement or entry is fraudulent

if known to be untrue and made or caused

to be made with intent to deceive."

(emphasis added). Therefore, even if

Baumhardt did not complete the ATF Forms

and A & D Book entries for these

purchases, he could be convicted if the

evidence showed that he "caused" these

false entries to be completed.

Officers Kelly and McClain both

testified that on September 17, Baumhardt

heard Officer McClain say that he did not

have an FOID card and saw Officer McClain

pay for some of the guns even though

Officer Kelly was the purported actual

buyer. Further, they testified that

Baumhardt filled out the sales receipt

for these purchases and indicated that

Officer Kelly’s occupation was "laborer"

and his purpose for buying the guns was

"target shooting." Webb testified that on

September 16, she and Smith, who did not

possess an FOID card, went to B & H.

Smith pointed out two guns that he wanted

and asked Webb to ask Baumhardt how much

they cost. After Baumhardt told her the

price of the guns and the amount of the

deposit, Smith reached into his pocket

and took out the amount of money for the

deposit. While Baumhardt was watching

them, Smith then handed the money to

Webb, who immediately handed it to

Baumhardt. Webb testified that Baumhardt

then filled out a sales receipt for the

guns, using the information on Webb’s

FOID card. The sales receipt indicated

that Webb’s purpose for buying the guns

was "target shooting," even though she

and Baumhardt had never discussed target

shooting.

The evidence showed that Baumhardt

created the sales receipts in Officer

Kelly’s and Webb’s names with knowledge

that they were not the actual buyers. The

completion of the sales receipts was a

critical step towards the completion of

the straw purchases because the B & H

employee would do the background check on

the name that appeared on the sales

receipt. Moreover, the entries on the ATF

Forms and in the A & D Books would be

made from the information contained in

the sales receipts. Thus, because the

evidence clearly showed that Baumhardt

created the sales receipts with knowledge

that they contained false information,

there was sufficient evidence for a

rational juror to find that he "caused"

false ATF Forms and A & D Book entries to

be made.

III. Conclusion

For the foregoing reasons, we AFFIRM.

FOOTNOTES

/1 18 U.S.C. sec. 1001(a)(3) provides:

"[W]hoever . . . makes or uses any false writing

or document knowing the same to contain any

materially false, fictitious, or fraudulent

statement or entry; shall be fined under this

title or imprisoned not more than 5 years, or

both."

/2 18 U.S.C. sec. 922(b)(2) provides:

It shall be unlawful for any . . . licensed

dealer . . . to sell or deliver any firearm to

any person in any State where the purchase or

possession by such person of such firearm would

be in violation of any State law . . . unless the

licensee knows or has reasonable cause to believe

that the purchase or possession would not be in

violation of such State law.