Cases involving felons charged with possessing firearms are generally pretty mundane. In the typical case, a felon, with a gun in his car, is stopped for a traffic violation. If the evidence isn’t suppressed, the inevitable conditional guilty plea follows, with the search issue reserved for appellate review. Unlike the typical case, our case today, at least the factual situation from which it springs, is anything but mundane. Here are the facts.
Cleo Ross was in jail in the summer of 2000 when he began corresponding with Wynemia Lindsey, a legal secretary in the State’s Attorney’s office in Champaign County, Illinois. Lindsey was the mother of one of Ross’s childhood friends and he got to know her when she hosted neighborhood cookouts back in the late 1980s and early 1990s. Despite their 14-year age gap, romance blossomed. When Ross left jail on parole in February of 2001, he moved in with Lindsey. Sometime that summer, Ross allegedly showed Lindsey a shotgun he had stashed behind the furnace in her basement. He explained that he wanted to keep the firearm with her because, as a convicted felon, he could not possess it himself. Lindsey later moved the shotgun into her bedroom. The June-November romance 1 between Ross and Lindsey hit the skids in early 2002.
In August of 2002, Lindsey began dating another man, Jesse Ratliffe. Lindsey testified at trial that in the early morning of September 8, 2002, Ross showed up at her home unannounced and armed with a handgun. He found Lindsey in bed with Ratliffe. The two men began to wrestle and a gun went off, wounding Ratliffe in the hand. Both men then fled, apparently in different directions. The police later recovered Ross’s shotgun from Lindsey’s house but were unable to find the gun used in the shooting. Also, Lindsey’s story had a few holes. For one thing, it differed from her original account, where she fingered an imaginary ex-boyfriend as the culprit. And though Ratliffe’s testimony corroborated Lindsey’s in some respects, he could not identify Ross as the perpetrator. Moreover, Ratliffe said the perpetrator was around 6'0"; Ross, however, is closer to 6 ’7".
Trial commenced in early 2003. The defense’s theory was that Lindsey shot Ratliffe and then tried to pin it on Ross. As for the shotgun, which had his fingerprints on it, Ross argued that he possessed it many years ago. The jury found Ross guilty of violating 18 U.S.C. § 922(g)(1). He was sentenced to a term of 115 months.
Ross raises three challenges to his conviction. First, he argues that the district court erred in excluding the polygraph results. “A district court’s decision on the admissibility of polygraph results deserves considerable deference, and will be reversed only when the district court has abused its discretion.”
United States v. Lea,
Ross has failed to establish an abuse of discretion. His primary argument is that the district court applied the wrong legal standard, mistakenly relying on Illinois law, which prohibits polygraph evidence all together. But the district court did no such thing. True, Judge McCuskey did say that he was familiar with Illinois’s blanket prohibition because he was a former state judge. But he also recognized that there is no similar ban in federal court and then proceeded to analyze the admissibility question under Rule 403 and the expert witness test enunciated in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
There was no abuse of discretion here because, for one thing, the manner in which the test was administered — privately commissioned, in the eleventh hour, and without notice to the government — was highly suspect. Not surprisingly, Ross fails to identify another case where polygraph evidence was admitted in similar circumstances. Indeed, courts have routinely rejected unilateral and clandestine polygraph examinations like the one taken here, citing concern that a test taken without the government’s knowledge is unreliable because it carries no negative consequences, and probably won’t see the light of day if a defendant flunks.
See United States v. Tucker,
Next, Ross argues that the district court erred by refusing to bar the government from introducing evidence of his pri- or felony convictions, for impeachment purposes, in the event he testified. But by choosing not to testify during his trial, Ross waived appellate review of this issue.
Luce v. United States,
Ross raises one other challenge to his conviction, one that is before us in a rather unusual “here today, gone tomorrow” fashion. Unlike his other issues, this one has traction. The indictment charged Ross with being a felon who possessed a firearm “on or about September 8, 2002.” The jury was instructed, however, in accordance with the evidence presented at trial&emdash;which east some doubt on the government’s claim that Ross possessed a firearm at any time close to the date in the indictment&emdash;that it could still convict as long as Ross possessed the weapon “on or after May 22, 1998.” The instruction was given to meet a possible statute of limitations defense that if Ross possessed the gun, he did so years earlier than the date charged in the indictment. This change allowed the jury to find Ross guilty if it believed he possessed the shotgun in the summer of 2001 (when he allegedly showed it to Lindsey) as opposed to possessing “a firearm” on or about September 8, 2002, when the Lindsey/Ratliffe tryst was rudely interrupted. Although the evidence, and hence jury instructions, in a criminal trial are permitted to vary somewhat from the allegations of the indictment, in recognition of the inherent uncertainties of the trial process, there are limits to any permitted variance.
United States v. Jefferson,
The government tells us that the phrase “on or about” a specified date allows the prosecutor at trial to reach back to the beginning of the statutory period of limitations, which here is 5 years. Although dicta can be quoted to that effect,
e.g., Ledbetter v. United States,
There might, we suppose, be cases where it was obvious to the grand jury that the criminal conduct that it was asked to charge the defendant with began years before the “on or about” date in the indictment, and then it might be argued that the variance, while startling, was not fatal. But this case is at the opposite end of that spectrum. It is clear from the “on or about” date alleged here that the grand jury probably thought it was indicting Ross for possessing a pistol when the Llindsey/Ratliffe tryst was interrupted. The instructions, however, permitted the jury to convict him for possessing a shotgun 4 years earlier. Had the instructions limited the jury’s consideration to the later incident, Ross might well have been acquitted.
So Ross has a strong argument, one his lawyer argued about in her opening brief. But then, bizarrely, in the opening sentence of her reply brief, the lawyer wrote, without further elaboration: “After reviewing the brief for the Plaintiff-Appel-lee [i.e., the government], the defendant concedes this issue.” Essentially, she threw away a winning argument&emdash;“Here today, gone tomorrow.” But after oral argument, counsel realized she made a mistake and sent a letter asking to withdraw the concession made in her reply brief. We are unaware of any authority for making such a retraction (she cites none), but then again, the government can’t claim prejudice, as defense counsel did not have to make the concession or even file a reply brief.
See
Fed. R.App. P. 28(c); 16A Charles Alan Wright, Arthur R. Miller
&
Edward H. Cooper,
Federal Practice and Procedure
§ 3974.3, pp. 525, 530 (3d ed.1999); Jason Vail, “The Pitfalls of Replies,” 2
J.App. Prac. & Process
213-14, 216 (2000);
compare United States v. Rodriguez,
Accordingly, we Vaoate Ross’s conviction and sentence and Remand the case to the district court for a new trial.
Notes
. A 14-year age spread is too short to qualify as a traditional May-December romance.