In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3280

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW POOLE,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 560--David H. Coar, Judge.


Argued February 25, 2000--Decided March 22, 2000



    Before BAUER, RIPPLE and MANION, Circuit Judges.

  RIPPLE, Circuit Judge. Matthew Poole was
convicted in the district court of five counts of
knowingly making false statements in connection
with the purchase of firearms. See 18 U.S.C. sec.
924(a)(1)(A). The Bureau of Alcohol, Tobacco and
Firearms ("ATF") requires that all gun purchasers
fill out ATF Form 4473. Mr. Poole was charged
with giving false answers to the Form 4473
questions that asked whether he was the "actual
buyer" of the firearms and whether he had ever
been convicted of a crime that would have
prohibited him from possessing a firearm. Mr.
Poole now submits that the district court abused
its discretion on certain evidentiary rulings and
abused its discretion by its denial of a motion
for mistrial based upon the prosecutor’s improper
closing argument. For the reasons set forth in
this opinion, we affirm the judgment of the
district court.

I

BACKGROUND

A.    Facts

  In November 1996, in an Illinois state court,
Mr. Poole, pursuant to a plea agreement, pleaded
guilty to felony possession of cannabis. The
state court, in accepting his plea, advised him
that he could receive from 1 to 3 years
imprisonment. Mr. Poole was sentenced to 12
months of felony probation. Under 18 U.S.C. sec.
922, it is illegal for convicted felons to
possess firearms.

  In April, May and June 1998, at Suburban
Sporting Goods in Melrose Park, Illinois, Mr.
Poole purchased a total of 14 guns, in five
transactions, using his Firearm Owner’s
Identification ("FOID") card./1 On every visit
to the gun shop, Mr. Poole was accompanied by
another man./2 That other man selected the guns
and paid for them. For each transaction, Mr.
Poole filled out ATF Form 4473, completing five
forms between April 1998 and June 1998. Question
8(a) on the form asks, "Are you the actual buyer
of the firearm listed below?" Mr. Poole answered
"yes" to this question on each form. Question
8(c) asks, "Have you been convicted in any court
of a crime for which the judge could have
imprisoned you for more than one year, even if
the judge actually gave you a shorter sentence?"
Mr. Poole answered "no" to this question on each
form.

  In August 1998, after receiving notification
from the Illinois State Police that his FOID card
had been revoked, Mr. Poole went back to the same
gun shop and once again filled out ATF Form 4473
in order to effect the purchase of two more guns.
Because Illinois has a 72-hour waiting period,/3
Mr. Poole and the other man planned to return in
three days to complete the purchase of those
guns. Before his planned return, however, Mr.
Poole was arrested, and the proposed sale was
terminated. He was charged with five counts of
making false statements on a form used to
purchase firearms, in violation of 18 U.S.C. sec.
924 (a)(1)(A),/4 and five counts of being a
felon in possession of a firearm, in violation of
18 U.S.C. sec. 922(g)(1). He was not charged with
the August 1998 attempted transaction, and, prior
to trial, the Government dismissed the five
counts of being a felon in possession of a
firearm. In essence, the Government prosecuted
Mr. Poole for being a "straw purchaser" by buying
guns for someone who was unable to obtain them
legally.

  Mr. Poole pleaded not guilty based upon his
assertions that he thought he was being truthful
when he filled out the 4473 forms. He contended
that he considered himself to be the actual buyer
because he was the one with the FOID card. He
further argued that he had not lied by stating
that he did not have a felony conviction; he did
not realize, he explained, that the November 1996
plea resulted in a felony conviction and that he
could have been sentenced to at least one year in
prison for that conviction.

  Prior to trial, the Government had filed a
notice of intent to offer evidence, under Federal
Rule of Evidence 404(b). This evidence pertained
to the August 1998 attempted transaction. The
district court, after a hearing, allowed this
evidence to be presented at trial with a limiting
instruction.

  During the trial, Mr. Poole testified that he
did not know anything about guns. In an effort to
impeach Mr. Poole and therefore cast doubt on his
credibility, the Government questioned Mr. Poole
about his 1996 arrest because the police report
stated that 5 guns were found during that arrest.
Specifically, the prosecutor asked Mr. Poole
whether guns were found in his apartment at the
time of his arrest on his state cannabis charge.
Mr. Poole answered, "No, sir, not in my
apartment. Down the hallway but not in my
apartment."/5 Tr. III at 237.

  During her closing argument, the prosecutor
commented on Mr. Poole’s state felony conviction.
Mr. Poole, contending that the prosecutor’s
comments were not supported by the record, moved
for a mistrial. The district court denied the
motion.

  Mr. Poole now appeals, stating that he should be
granted a new trial for the following reasons: 1)
the district court improperly admitted evidence
of Mr. Poole’s August 1998 attempted transaction
under Rule 404(b); 2) the district court
improperly allowed the defendant to be questioned
about the presence of guns at his 1996 arrest;
and 3) the district court erred by not granting a
mistrial based upon the allegedly improper
closing argument of the prosecutor. We shall
address each of these contentions.

II

DISCUSSION

A.   August 1998 Attempted Transaction

1.

  Mr. Poole argues that the introduction of the
August 1998 attempted transaction was improper
under Federal Rule of Evidence 404(b) because the
Government used that evidence for the purpose of
showing his propensity to commit the crimes
charged./6 Mr. Poole further states that such
evidence should not have been admitted because he
never was charged with any violations stemming
from that incident. Additionally, Mr. Poole
contends that this evidence was especially
prejudicial because the attempted transaction
occurred after Mr. Poole’s FOID card had been
revoked.

  The Government counters that evidence of this
attempted transaction, which had occurred
subsequent to the charged offense, properly was
admitted because it showed Mr. Poole’s intent and
plan. The Government also points out that, in
order to minimize the possibility of unfair
prejudice, the district court gave a limiting
instruction to the jury concerning this evidence.


  The trial court’s admission of evidence of other
acts under Rule 404(b) is reviewed by this court
under the abuse of discretion standard. See
United States v. Asher, 178 F.3d 486, 491-92 (7th
Cir.), cert. denied, 120 S. Ct. 359 (1999);
United States v. Robinson, 161 F.3d 463, 466 (7th
Cir. 1998), cert denied, 119 S. Ct. 1482 (1999);
United States v. Lloyd, 71 F.3d 1256, 1264 (7th
Cir. 1995), cert. denied, 517 U.S. 1250 (1996).

2.

  When evaluating the admissibility of other acts
under Rule 404(b), this court uses a four-prong
test that incorporates the relevancy aspect of
Rule 403: (1) the evidence of the other act must
address a matter in issue other than the
defendant’s propensity to commit the crime
charged; (2) the other act must be similar enough
and close enough in time to be relevant to the
matter in issue; (3) the evidence of the other
act must be sufficient for the jury to find that
the defendant committed the other act; and (4)
the other act must have probative value that is
not substantially outweighed by the danger of
unfair prejudice. See Asher, 178 F.3d at 492;
United States v. Smith, 103 F.3d 600, 603 (7th
Cir. 1996); Lloyd, 71 F.3d at 1264.

a.

  The other act must address a matter at issue.
Mr. Poole based his defense upon his assertion
that he did not knowingly give false statements
on the ATF forms, thus making his own knowledge a
matter at issue. Therefore, it was proper to
allow the Government the opportunity to show that
Mr. Poole knew full well what he was doing. We
agree with the Government that evidence of the
subsequent act shows "intent and plan." It
supported the argument that, even though the
defendant claimed to be the actual purchaser in
the transactions at issue, his subsequent conduct
showed that his claim was not true. Furthermore,
this subsequent attempted transaction, without
the benefit of a FOID card, was relevant with
respect to Mr. Poole’s knowledge of his state
felony conviction because in July 1998, the
Illinois State Police had sent Mr. Poole notice
of his FOID card revocation.

b.

  The other act must be similar and close in time.
The August 1998 incident occurred within a few
months of the conduct that prompted Mr. Poole’s
indictment. Indeed, Mr. Poole was arrested on the
very day that he was scheduled to pick up the
guns from the August transaction. Moreover, other
than the absence of his FOID card, which had been
revoked, the transaction was virtually identical
to Mr. Poole’s other gun shop transactions.

c.

  The evidence must be sufficient to show that the
defendant committed the other act. Mr. Poole does
not deny that he committed the August 1998
attempt to purchase guns. Indeed, the jury was
not presented with any evidence that disputed
that the August 1998 transaction occurred.

d.

  The danger of unfair prejudice must not
substantially outweigh the probative value.
"’Relevant evidence is inherently prejudicial.’"
Lloyd, 71 F.3d at 1265 (quoting Cook v. Hoppin,
783 F.2d 684, 689 (7th Cir. 1986)). When the
other three prongs of the test are met, evidence
should be excluded only if any resulting unfair
prejudice substantially outweighs the probative
value. See Asher, 178 F.3d at 494-95; Smith, 103
F.3d at 603-04. Care may be taken to decrease the
possibility of unfair prejudice by issuing
special jury instructions on the proper use of
this evidence. See Smith, 103 F.3d at 604. It was
undoubtably harmful to Mr. Poole’s case when
evidence of his subsequent attempted transaction
was offered at trial. But harm alone is not
enough to warrant exclusion under the heading of
"unfair" prejudice. See Lloyd, 71 F.3d at 1265.
In this case, the evidence of the subsequent act
was directly relevant to Mr. Poole’s intent, plan
and knowledge of his actions. Furthermore, the
district court issued limiting instructions to
the jury on the proper use of this evidence.
Consequently, we are not persuaded by Mr. Poole’s
argument stating that unfair prejudice outweighed
the probative value. Therefore, we do not believe
that the district court abused its discretion by
admitting the evidence.

B.   Guns at the 1996 Cannabis Arrest

  Mr. Poole contends that questions concerning the
presence of guns at his 1996 arrest for
possession of cannabis were improper because he
was not charged with any firearms violations as a
result of that incident. Moreover, he submits,
the prosecutor’s questions were very prejudicial
because they portrayed him as a "man of
violence." Appellant’s Br. at 21. He submits that
the district court should have used the Rule
404(b) test to exclude the evidence. The
Government counters that the circumstances
surrounding the 1996 cannabis arrest were
introduced to impeach Mr. Poole’s testimony. We
review the district court’s decision to allow
this line of questioning for abuse of discretion.
See United States v. Given, 164 F.3d 389, 393
(7th Cir.), cert. denied, 120 S. Ct. 132 (1999).

  The record discloses that Mr. Poole testified,
on direct examination, that, when "James"
approached him and asked if he knew anyone who
had a gun, Mr. Poole said that he knew nothing
about guns. He further testified that, while
James and James’ friend were looking at guns in
the gun shop, he did not know what to look for,
so he stood aside and did not participate in the
conversation. The prosecutor, on cross-
examination, first questioned Mr. Poole about his
participation in the purchase of the firearms. He
again denied that he knew anything about the guns
that were being purchased. The prosecutor then
pointedly asked him whether he knew "anything
about guns." Tr. III at 234. He answered that he
did not and that he did not even know how to
shoot one. See id. The defense counsel then asked
for a sidebar and objected to the line of
questioning on the ground that the Government was
setting the stage to ask Mr. Poole about the
presence of guns at his 1996 cannabis arrest. The
district court determined that, by asserting that
he was not knowledgeable about guns, the
Government was allowed to impeach him on that
statement. The following cross-examination then
took place:

Q: Now, Mr. Poole, you just told the members of
the jury that you didn’t know anything about
guns, is that correct?
A: Yes, sir.
Q: In fact, you didn’t even know how to shoot a
gun, right?
A: Correct.
Q: You didn’t handle any of the guns that were
purchased by James, is that correct?
A: No, sir, I did not.
Q: And you didn’t handle any of the guns that
were purchased by his partner?
A: No, sir.
Q: But you had handled guns before, hadn’t you?
A: No, sir.
Q: Wasn’t it true that in that 1996 conviction,
Mr. Poole, that five handguns were found in your
apartment?
A: No, sir, not in my apartment. Down the hallway
but not in my apartment.

Tr. III at 237. Notably, Mr. Poole was given an
opportunity to dispute the Government’s
suggestion that the guns were in his apartment.

  We cannot say that the district court abused its
discretion in admitting this testimony. Because
the Government’s case rested on the showing that
Mr. Poole was purchasing the guns for someone
else as a "straw purchaser," any evidence of Mr.
Poole’s personal possession of guns would not
have benefitted, in any direct way, the
Government’s case. However, as the district court
noted, this line of questioning would address Mr.
Poole’s credibility and therefore was admissible
for that limited purpose. When used for
impeachment purposes, the statements do not
require the Rule 404(b) analysis that Mr. Poole
argues. See United States v. Cerro, 775 F.2d 908,
914 (7th Cir. 1985).

C.   The Government’s Closing Argument

  Mr. Poole also contends that the district court
should have granted a mistrial because the
prosecutor made improper comments during her
closing argument. Mr. Poole argues that the
prosecutor improperly relied upon her own
personal knowledge and on other information that
was not in the record. The Government replies
that, because Mr. Poole put his lack of knowledge
of his previous felony conviction at issue,
closing argument appropriately included comments
concerning the 1996 court proceeding and any
reasonable inferences drawn from the evidence of
Mr. Poole’s court appearance. We review the
district court’s denial of a mistrial for an
abuse of discretion. See United States v. Butler,
71 F.3d 243, 254 (7th Cir. 1995).

  We follow a two-step analysis when assessing
possible prosecutorial misconduct during closing
argument. First, we look at the disputed remarks
in isolation to see if they were improper;
second, if the statements were improper, then we
proceed to determine whether the statements, when
assessed in the context of the record as a whole,
denied the defendant a fair trial. See United
States v. Morgan, 113 F.3d 85, 89 (7th Cir.
1997); Butler, 71 F.3d at 254; United States v.
Badger, 983 F.2d 1443, 1450 (7th Cir.), cert.
denied, 508 U.S. 928 (1993). When we reach this
second step, in order to determine whether the
defendant was denied a fair trial, we examine:

1)   the nature and seriousness of the
prosecutorial misconduct, 2) whether the
prosecutor’s statements were invited by conduct
of defense counsel, 3) whether the trial court
instructions to the jury were adequate, 4)
whether the defense was able to counter the
improper arguments through rebuttal, and 5) the
weight of the evidence against the defendant.

Badger, 983 F.2d at 1450.

1.

  Mr. Poole alleges that the prosecutor made
improper closing remarks when she characterized
the circumstances surrounding Mr. Poole’s 1996
plea agreement in state court on the cannabis
charge. The prosecutor described Mr. Poole’s
access to legal counsel and the courtroom
setting. She told the jury that the 1996 trial
transcript supported the contention that Mr.
Poole had received legal counsel from two
attorneys. She continued by giving her own
assessment of the duties and roles those
attorneys played:

[H]is lawyers on his behalf would have been
testing the strength of the state’s evidence. And
what that means and why it’s relevant here is
that Matthew Poole would have been present and he
would have been fully aware of what the state’s
charges were against him.

Tr. IV at 277. These comments were not
unreasonable and improper.

  In addition to discussing Mr. Poole’s attorneys,
the prosecutor stated that, "Matthew Poole stood
before a judge in a courtroom probably like this
one." Tr. IV at 278. The evidence presented at
trial revealed that Mr. Poole did appear with
counsel before a judge in a courtroom. Although
Mr. Poole’s 1996 trial was a state proceeding in
night court, the particular physical appearance
of the courtroom was not essential to the solemn
nature of that proceeding. Moreover, Question
8(c) on ATF Form 4473 asks if the purchaser had
been convicted in any court. Consequently, in
assessing this remark in isolation, there is
nothing to suggest that the prosecutor’s remarks
were improper.

2.

  Even if the statement had been improper in
isolation, Mr. Poole’s argument would fail the
second test in our analysis of possible
prosecutorial misconduct during closing argument.
Mr. Poole testified at trial that he did not know
he had a felony conviction and that he did not
know that he could have been sentenced to over
one year of imprisonment, thereby inviting the
prosecutor’s comments. Also, Mr. Poole had ample
opportunity to refute the prosecutor’s argument
during his own closing.

  Moreover, sufficient evidence existed for a
reasonable jury to find Mr. Poole guilty on all
counts. When challenging the sufficiency of
evidence to support a conviction, "’[a]s an
appellate court, we will not second-guess the
jury on [the credibility determination].’" United
States v. Curry, 79 F.3d 1489, 1497 (7th Cir.
1996) (quoting United States v. Lakich, 23 F.3d
1203, 1210-11 (7th Cir. 1994)). In assessing the
weight of the evidence, we must look at the proof
supporting the Government’s allegation that Mr.
Poole knowingly gave false statements concerning
his felony conviction and knowingly gave false
statements when he said he was the actual buyer.
In addition to arguing his lack of knowledge of
his felony conviction, Mr. Poole argued that
because his FOID card was being used to
effectuate the purchase, he believed he was the
actual buyer. "[The defendant] was free to make
these arguments to the jury. The jury, in turn,
was free to reject them." United States v.
Obiuwevbi, 962 F.2d 1236, 1239 (7th Cir. 1992).
Mr. Poole testified at trial that he bought guns
for a man named "James," that Mr. Poole
personally did not pay for the guns, and that he
never had possession of the guns. That testimony
alone could be enough evidence for a reasonable
jury to find that Mr. Poole knowingly gave false
statements when he stated that he was the actual
buyer. Additionally, the jury was presented
evidence that Mr. Poole was a convicted felon,
that he had appeared in state court with counsel
before a judge, and that he had signed a plea
agreement with respect to that conviction. Most
importantly, a special agent of the ATF testified
that Mr. Poole had related to her his
understanding that, as a felon, he could not
possess firearms and then described each
purchase.

  The motion for mistrial was properly denied by
the district court.

Conclusion

  We have reviewed each of Mr. Poole’s contentions
and conclude that the district court did not
abuse its discretion in adjudicating any of these
issues. Accordingly, the judgment of the district
court is affirmed.

AFFIRMED


/1 Illinois residents may not purchase or possess a
firearm without a valid FOID card. Convicted
felons are not eligible to obtain a FOID card,
and a felony conviction results in the revocation
of a valid FOID card. Mr. Poole’s FOID card had
not been revoked at the time of his felony
conviction and was not revoked until after he had
used it to purchase 14 firearms.

/2 On April 30, 1998, his first visit to the gun
store, Mr. Poole was accompanied by a man he
refers to as "James." On all subsequent visits,
Mr. Poole was accompanied by a man he refers to
as "James’ friend."

/3 The 72-hour waiting period gives the licensed
dealers time to obtain the necessary approval of
the Illinois State Police for every firearm sale.
During the 72-hour period, the Illinois State
Police check the purchaser’s criminal and mental
history before giving that approval.
Nevertheless, Mr. Poole had been able to purchase
14 firearms from April 1998 through June 1998.

/4 18 U.S.C. sec. 924(a)(1)(A) states in part:

whoever--knowingly makes any false statement or
representation with respect to the information
required by this chapter to be kept in the
records of a person licensed under this chapter .
. . shall be fined under this title, imprisoned
not more than five years, or both.

18 U.S.C. sec. 924(a)(1)(A) (emphasis added).

/5 Mr. Poole was charged with felony possession of
cannabis, but he was never charged with gun
violations stemming from his 1996 arrest.

/6 Federal Rule of Evidence 404(b) states as
follows:

Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity therewith. It may, however,
be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the
accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
Fed. R. Evid. 404(b).
