                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-2406
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                                v.

DIRK D. JONES,
                                          Defendant-Appellant.

                         ____________
            Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
              No. 2:02 cr 93-02—Rudy Lozano, Judge.
                         ____________
    ARGUED DECEMBER 17, 2003—DECIDED JUNE 9, 2004
                   ____________



  Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Dirk Jones was charged in
two counts of a three-count indictment arising from the
purchase and attempted resale of a firearm. Count One
charged him with a conspiracy having two objects: to make
a false statement to a federally licensed firearms dealer,
and to transfer a firearm to a resident of another state.
18 U.S.C. §§ 371, 922(a)(6), 922(a)(5). Count Three charged
him with possession of a firearm by a felon. Id. § 922(g)(1).
A jury found him guilty of both counts, and the district
court sentenced him consecutively to 60 months’ impri-
sonment on Count One and three months’ imprisonment on
Count Three. At the close of the government’s case
2                                               No. 03-2406

and again at the close of all evidence, Jones had moved for
acquittal on both counts under Fed. R. Crim. P. 29. Jones
now appeals the denial of that motion only as to Count One,
arguing that the government did not present sufficient
evidence to support the conspiracy conviction. Because the
government failed to meet its burden, we reverse Jones’s
conviction on Count One.


                    I. BACKGROUND
  Early on the morning of June 20, 2001, Dennis Rock
entered the Westforth Sports Shop in Gary, Indiana, with
an unidentified individual and made a $200 down payment
on a Norinco SKS semi-automatic assault rifle. Rock was a
frequent customer at Westforth’s. Between September 2000
and June 2001, Rock had purchased at least ten firearms
from Westforth’s, and agents from the Bureau of Alcohol,
Tobacco, and Firearms (ATF) had asked the store to alert
them if Rock made any more purchases. After Rock placed
the down payment on the rifle and had left the store, the
sales clerk called the ATF to report the transaction. ATF
agents arrived at the store and hid in a back room. The
government made no effort at trial to establish the identity
of Rock’s companion, but nevertheless argued in closing
that Jones was the second man in the store.
  Rock returned to Westforth’s later that morning, and
Jones admits that this time he was with Rock. Store sur-
veillance cameras recorded the entire time the two men
were at Westforth’s. Rock and Jones spent at least half an
hour in the store because the ATF had instructed the sales
clerk to delay completing the transaction until additional
agents could arrive. During this time, the store surveillance
video showed that Rock filled out a federally required Form
4473. The video also showed that during this period Jones
handled the SKS rifle briefly, spoke with Rock and the sales
clerk, smoked a cigarette, looked at the display cases, and
No. 03-2406                                                 3

held a pistol from one of the cases for a few moments. There
was no testimony about what Jones said while in the store.
Once the sale was completed, the sales clerk placed the rifle
in a box and Jones carried the box to Rock’s car and placed
it in the trunk.
  The two men then drove away, and ATF agents followed.
Rock drove around Gary with Jones in the car for approx-
imately ninety minutes, making stops at a convenience
store, an apartment building, and a restaurant. Rock then
entered Interstate 90 and drove into Chicago, stopping in
front of a Chicago Housing Authority building at 2920
South State Street. While Rock remained in the car, Jones
got out and walked into the building. Approximately a
minute later Rock exited his car and opened the trunk. The
ATF agents testified that they believed Rock was trying to
remove the rifle from the trunk, so they approached the car
and arrested him. Chicago police officers also arrived at this
point. ATF Agent Mickey French testified that approxi-
mately three to five minutes after Rock had parked his car,
Jones and seven or eight other people exited the building.
The agents approached and detained Jones, but did not
question the others. Chicago police officers took Jones to a
police station for questioning, but later released him and
allowed him to leave in Rock’s vehicle. Seventeen months
later, in November 2002, Jones was indicted along with
Rock. But Rock became a fugitive, so Jones was tried alone.
Rock was subsequently located, and he pleaded guilty to
Count One in August 2003.
  The government and the defense offer widely different
theories about Jones’s actions on that day. The govern-
ment’s theory of the case was that Rock had an ongoing re-
lationship with a man in Chicago named “Vino” or “Vince”.
Agent Kevin O’Malley read into evidence a redacted written
confession Rock had given to the police on the day he was
arrested, in which Rock describes his dealings with Vino
and says that he was purchasing the SKS rifle for Vino.
4                                                No. 03-2406

Agent Cynthia Carroll testified that the ATF had been
investigating Rock because he had bought eleven firearms
from Westforth’s. Agent Carroll testified that the ATF
suspected Rock of making “straw purchases”—meaning that
Rock (who had a gun permit and could legally buy firearms)
would purchase a gun from a store and then resell it in
Chicago, possibly with Vino’s assistance. The government
presented no evidence that Jones was involved in any other
transactions, but argued in its closing that Jones was
helping Rock to carry out one of these straw purchases on
June 20, and that Jones entered the housing project to find
a buyer for the rifle. The version of Rock’s confession read
to the jury made no mention of Jones.
  The defense argued instead that Jones had nothing to do
with the purchase or sale of the rifle. Jones testified that he
is a drug addict and that on the morning in question he
wanted to go to Chicago to purchase heroin. Indeed, Jones
has two previous convictions for drug offenses, and at trial
he rolled up his sleeve to show the jury what are apparently
extensive needle marks on his arm. He testified that he was
standing on a street corner in Gary where addicts regularly
go to look for rides into Chicago to buy drugs, when
Rock—who was a casual acquaintance—drove up and
offered to take him. According to Jones, Rock said he
needed to make a stop before heading to Chicago and then
went to Westforth’s. Jones said he was experiencing with-
drawal and wanted to get to Chicago quickly, so he went
into the store to try to keep Rock from wasting time—an
explanation the government disputed in its closing. When
they arrived at 2920 South State Street, according to Jones,
he went inside and bought heroin that he snorted while still
inside. Jones also testified that this building was the
location where he usually bought his heroin.
No. 03-2406                                                5

                      II. ANALYSIS
A. Standard of Review
  Jones argues that the district court erred in denying his
motions for acquittal on Count One. We review the denial
of those motions de novo. United States v. Quilling, 261
F.3d 707, 712 (7th Cir. 2001). We recognize that we may not
reweigh the evidence or the credibility of witnesses, and
must view the evidence in the light most favorable to the
government and draw all reasonable inferences in its favor.
United States v. Senffner, 280 F.3d 755, 760 (7th Cir. 2002).
The question we must ask is whether “any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); accord United States v. Curtis, 324 F.3d
501, 505 (7th Cir. 2003).


B. Sufficiency of the Evidence
  In order to establish a conspiracy under § 371, the gov-
ernment must prove: (1) an agreement to commit an illegal
act; (2) the defendant’s knowing and intentional participa-
tion in the agreement; and (3) an overt act committed in
furtherance of the agreement. United States v. Gee, 226
F.3d 885, 893 (7th Cir. 2000). The government may rely
on circumstantial evidence to establish both the existence
of a conspiracy and the defendant’s involvement. United
States v. Irorere, 228 F.3d 816, 823 (7th Cir. 2000). But
although a jury may infer facts from other facts derived
by inference, “ ‘each link in the chain of inferences must be
sufficiently strong to avoid a lapse into speculation.’ ”
United States v. Peters, 277 F.3d 963, 967 (7th Cir. 2002)
(quoting Piaskowski v. Bett, 256 F.3d 687, 693 (7th Cir.
2001)); accord United States v. Cruz, 285 F.3d 692, 699 (8th
Cir. 2002); United States v. Rahseparian, 231 F.3d 1257,
1262 (10th Cir. 2000); United States v. D’Amato, 39 F.3d
1249, 1256 (2d Cir. 1994).
6                                                No. 03-2406

  In its brief, the government lists a sequence of events
it says the jury could have found without drawing any
inferences. The events are: Jones talked with Rock on the
morning of June 20, 2001, and entered his car; Rock entered
Westforth’s with another man and made a $200 deposit on
an SKS rifle; Jones and Rock later entered Westforth’s
together; Rock paid for the rifle and filled out the necessary
paperwork, and Jones placed the rifle in Rock’s trunk; three
hours later Rock and Jones arrived at 2920 South State
Street, and Jones entered the building; approximately a
minute later Rock opened his trunk and started to remove
the rifle; Rock was detained; and Jones exited the building
by a side door with seven or eight men. The government
says this sequence “amply supports” the jury’s finding that
Jones participated in the conspiracy.
  The government overstates the strength of its evidence.
This sequence of events establishes at most that Jones was
present while Rock engaged in what Rock admitted was
an illegal straw purchase of a firearm. But “mere presence”
while a crime is being committed is insufficient to show that
a defendant acted to further a conspiracy. Piaskowski, 256
F.3d at 692; United States v. Navarrete, 125 F.3d 559, 562
(7th Cir. 1997); United States v. Larkins, 83 F.3d 162, 167
(7th Cir. 1996); United States v. Knox, 68 F.3d 990, 995 (7th
Cir. 1995). Even if Jones knew of Rock’s plan to resell the
rifle, his knowledge or approval of the illegal scheme is
insufficient to sustain a conviction. Knox, 68 F.3d at 995;
United States v. Durrive, 902 F.2d 1221, 1225 (7th Cir.
1990).
  The indictment charged that Jones conspired with Rock
to make a false statement to a firearms dealer because Rock
stated on the Form 4473 that he was purchasing the gun for
himself when in reality he was purchasing it for Vino. Jones
would not have known that Rock falsified the ATF form
unless he knew of Rock’s plan at that point. But the govern-
ment’s evidence at trial that Jones was connected with—or
No. 03-2406                                                  7

even aware of—Vino’s and Rock’s scheme to resell firearms
in Chicago is nonexistent. There is no evidentiary support
that shows either an agreement between Rock and Jones,
or Jones’s knowing participation in an agreement between
Rock and Vino. Rock, not Jones, filled out the form and gave
the money to the clerk. Moreover, Agent O’Malley even
testified that he had no probable cause to make an arrest at
the time Rock and Jones left Westforth’s because Rock had
a valid gun permit. The government’s evidence does not
even establish that Jones knew that Rock committed a
crime at Westforth’s, much less that he participated in it.
  Likewise, the fact that Jones knew Rock bought the gun
does not prove that he knew that Rock planned to sell it to
a nonresident of Indiana or that he played any role in the
scheme. The ATF agents could only speculate as to Jones’s
purpose for entering 2920 South State Street, because once
they arrested Rock and Jones, they made no attempt to
locate any potential buyer of the rifle or to identify any of
the people who left the building with Jones. Rock did not
testify at Jones’s trial, so he could not establish the purpose
for which Jones entered the building. Jones claimed he
entered the building to purchase heroin from his regular
drug supplier, and the government presented no evidence
to the contrary.
  To further support its case, the government lists several
inferences it says the jury reasonably could have drawn
from the evidence. First, it says the jury could have inferred
that Rock enlisted Jones to help him sell the rifle in
Chicago and that Jones agreed to participate to get money
for drugs. Although surely the jury could have inferred both
the existence of an agreement and Jones’s knowing partici-
pation had there been evidence from which to reasonably
draw those inferences, see Irorere, 228 F.3d at 838, there
was not in this case even circumstantial evidence to support
either inference. The government never explained at trial
8                                               No. 03-2406

how Jones was to profit from this transaction if he was to
profit at all; speculation is all that the government offers
now.
   Adding to its speculation, the government also says that
the jury could have inferred that Jones told Rock that they
could sell the gun to one of his heroin suppliers at 2920
South State Street. But the only basis for suspecting that
Jones told Rock he knew of a buyer for the gun is a single
sentence in Rock’s post-arrest confession: “My friend Duke,
came with me to pickup the SKS, and that he (Duke) knew
of someone in the city of Chicago that would purchase the
SKS from me for a profit.” The government argues that
“Duke” is an alias for Dirk Jones. But the jury never saw
this sentence because the parties agreed before trial that it
was inadmissible. The government next argues that the
jury could have inferred that Jones was the man who went
into Westforth’s with Rock when Rock made his down pay-
ment, that the two men left the store to finalize their plan,
and that they returned to the store so Rock could complete
the purchase. But these points all assume that Jones was
the unidentified man who entered Westforth’s with Rock
the first time. This would be an important fact for the
government because it would undermine Jones’s assertion
that he first met Rock on the street corner and would also
suggest that he played a role in the transaction. But Jones
claims he wasn’t there, and the sales clerk was unable to
identify Jones as Rock’s original companion (even though he
did identify him as Rock’s companion the second time Rock
was in the store). Furthermore, Westforth’s has nine video
surveillance cameras that record every angle both inside
and outside the store. At trial the government played a tape
of Jones’s and Rock’s entire visit to the store when they left
with the SKS rifle. It seems that the government would also
have presented a videotape of the earlier visit to the store
if Jones was present, but it did not do so. As it was, the
government offered no evidence that the man with Rock the
first time was Jones.
No. 03-2406                                                 9

  Finally, the government says the jury could have inferred
that Jones knew Rock was going to lie on the Form 4473
about being the actual purchaser, and that pursuant to
their “agreement” Jones entered 2920 South State Street to
look for a buyer. These arguments again assume that Jones
was aware of a conspiracy and was a knowing participant
in it. The government might have obtained support for the
latter point if the ATF had further investigated after
detaining Jones. But the ATF did not question any of the
seven or eight people who left the building at the same time
as Jones and made no attempt to locate the assumed buyer
of the weapon. All the government brought to trial was its
speculation about the stop at the housing project.
   In short, the government’s evidence establishes at most
that Jones was present while Rock committed two federal
firearms crimes: falsifying the ATF form and driving to
Chicago for the purpose of selling the SKS rifle to an out-of-
state resident. The government tries to infer from his
presence that Jones both knew of and knowingly parti-
cipated in a conspiracy to commit those offenses. But the
government’s case relies on speculation with scant eviden-
tiary support. Even though a jury may infer facts, “each
link in the chain of inferences must be sufficiently strong to
avoid a lapse into speculation.” Piaskowski, 256 F.3d at 693.
The government’s evidence in this case required the jury to
do just that. The government’s case certainly casts suspi-
cion upon Jones. But a “strong suspicion that someone is
involved in criminal activity is no substitute for proof of
guilt beyond a reasonable doubt.” Id. at 692. Even given the
deferential standard of appellate review that applies here,
we cannot say that the government met its burden.


C. Rock’s Out-of-Court Statement
  One more matter before we conclude. Although it does not
impact our decision, we are troubled that the redacted
10                                               No. 03-2406

version of Rock’s confession was admitted into evidence.
Even assuming that the confession qualifies as a hearsay
exception as a statement against Rock’s penal interest, see
Fed. R. Evid. 804(b)(3), its admission at a trial where only
Jones was before the jury implicates the Confrontation
Clause of the Sixth Amendment, and we asked the parties
to file supplemental briefs on this issue.
  Jones had filed a pretrial motion in limine requesting
that any mention of him in the confession be redacted; cit-
ing Bruton v. United States, 391 U.S. 123 (1968), the gov-
ernment agreed to do so. But the Eighth Circuit recently
recognized that the long line of cases beginning with Bruton
does not go far enough to address a situation like this in
which the confession of a fugitive defendant is offered
against only his alleged accomplice. United States v.
Chapman, 345 F.3d 630, 634-35 (8th Cir. 2003). The court
in Chapman held that admitting the confession of a fugitive
co-defendant violated the remaining defendant’s rights
under the Confrontation Clause (though it found the error
to be harmless). Chapman, 345 F.3d at 634-35. Neither
party has even acknowledged Chapman in their post-argu-
ment submissions, so we do not have their views—parti-
cularly the government’s—about why we should not follow
the Eighth Circuit’s reasoning.
  The Bruton line of cases deals with situations in which
the confession of one defendant is offered at a joint trial
where the statement is redacted to omit any explicit refer-
ence to the co-defendant and the jury is instructed to con-
sider the statement only against the declarant. Id. Here,
Rock, the declarant, was not present at the trial, so his
confession was obviously intended to be used against Jones.
Until recently, cases interpreting the Confrontation Clause
required that a co-conspirator’s statement incriminating the
defendant contain “ ‘particularized guarantees of trustworthi-
ness’ such that cross-examination would be of marginal
utility in determining the truthfulness of the statements.”
No. 03-2406                                                11

United States v. Ochoa, 229 F.3d 631, 637 (7th Cir. 2000)
(quoting Lilly v. Virginia, 527 U.S. 116, 134 & n.5, 136
(1999)); see also Ohio v. Roberts, 448 U.S. 56, 66 (1980). As
discussed below, we have doubts about the reliability of
Rock’s confession, and we question whether it would satisfy
this standard. But since the parties filed their supplemental
briefs, the Supreme Court issued its opinion in Crawford v.
Washington, ___ U.S. ___, 124 S. Ct. 1354 (March 8, 2004).
Crawford holds that “the Sixth Amendment demands what
the common law required: unavailability and a prior
opportunity for cross-examination.” Id. at 1374. Crawford
curtails the inquiry into a statement’s reliability by holding
that “the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually
prescribes: confrontation.” Id. Jones never had an opportu-
nity to cross-examine Rock and thus, under Crawford, no
part of Rock’s confession should have been allowed into
evidence.
  Furthermore, we are also concerned that the district court
relied on Rock’s confession—including the sentence saying
that Jones knew of a buyer for the rifle—when it deter-
mined that Jones committed perjury at trial and therefore
deserved an adjustment for obstruction of justice. See
U.S.S.G. § 3C1.1. Although a judge may consider otherwise
inadmissible evidence in calculating a sentence, any
evidence upon which the judge relies must have “sufficient
indicia of reliability.” United States v. Cleggett, 179 F.3d
1051, 1054 (7th Cir. 1999) (quoting United States v. Cedano-
Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993)). But Rock’s
confession implicated both Jones and Vino in his gun selling
scheme, which could be considered an effort by Rock to shift
blame to others, thus reducing his own criminal liability
and raising questions about the veracity of the statement.
See, e.g., Williamson v. United States, 512 U.S. 594, 604
(1994). Moreover, a “very strong presumption of unreliabil-
ity” attaches to statements that are: (1) given with govern-
12                                               No. 03-2406

ment involvement; (2) describe past events; and (3) have not
been subjected to adversarial testing. Ochoa, 229 F.3d at
637 (citing Lilly, 527 U.S. at 137). Rock’s confession con-
tains all three of these elements, making it presumptively
unreliable. Since our disposition of the conspiracy count will
result in a remand for resentencing on the § 922(g)(1) count,
see United States v. Martenson, 178 F.3d 457, 462 (7th Cir.
1999), the district court should conduct a close examination
of the circumstances surrounding Rock’s confession before
considering it when imposing a new sentence.


                    III. CONCLUSION
  Jones’s conviction on Count One is REVERSED; his sen-
tence on Count Three is VACATED, and this case is
REMANDED to the district court for resentencing on Count
Three.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—6-9-04
