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

No. 04-2124
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.
CLEO C. ROSS,
                                        Defendant-Appellant.

                        ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
      No. 03 CR 20042—Michael P. McCuskey, Chief Judge.
                        ____________
       ARGUED MAY 9, 2005—DECIDED JUNE 20, 2005
                     ____________




  Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. 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 secre-
2                                                No. 04-2124

tary 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 neighbor-
hood 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 shot-
gun into her bedroom. The June-November romance1
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”.
  Ross filed two motions on the eve of trial. First, he sought
to introduce the results of a private polygraph test taken by
him 2 weeks earlier. Incredibly, the polygraph report
purported to establish that Ross placed the shotgun in


1
 A 14-year age spread is too short to qualify as a traditional
May-December romance.
No. 04-2124                                                  3

Lindsey’s home in 1991 and had forgotten it was there. If
credited, this report could have torpedoed the government’s
case. First, it would time-stamp the crime roughly 10 years
prior to the time identified by Lindsey; notably, outside the
5-year statute of limitations. And it also would cast doubt
on whether Ross was a convicted felon when he possessed
the gun. After reviewing the polygraph report in camera,
the district court refused to admit it, concluding that its
prejudicial impact far outweighed its probative value under
Federal Rule of Evidence 403. The court also noted that
allowing an expert to vouch for the test results “would be
turning over the function of the jury to a polygraph exam-
iner.” Ross also filed a motion in limine seeking to preclude
the government from impeaching him with his prior
convictions for home invasion and armed robbery. The court
denied that request as well.
  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 ar-
gues 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, 249 F.3d 632, 638 (7th Cir.
2001) (citing United States v. Olson, 978 F.2d 1472, 1480
(7th Cir. 1992)). In assessing the admissibility of such
evidence, a court must balance its probative value and
prejudicial effect, and the risk of issue confusion, mislead-
ing the jury, and undue delay. Id. The court should there-
fore “take as its guide Rule 403 of the Federal Rules of
Evidence[.]” United States v. Robbins, 197 F.3d 829, 844
(7th Cir. 1999).
4                                               No. 04-2124

  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., 509 U.S. 579 (1993).
The court therefore applied the correct legal standard.
  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 surpris-
ingly, 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 con-
cern 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, 773 F.2d 136, 141 (7th
Cir. 1985); United States v. Williams, 737 F.2d 594, 611 (7th
Cir. 1984); United States v. Feldman, 711 F.2d 758, 767 (7th
Cir. 1983); United States v. Thomas, 167 F.3d 299, 309 (6th
Cir. 1999); United States v. Sherlin, 67 F.3d 1208, 1217 (6th
Cir. 1995); United States v. Beck, 729 F.2d 1329, 1332 (11th
Cir. 1984).
  Next, Ross argues that the district court erred by refusing
to bar the government from introducing evidence of his
prior 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.
No. 04-2124                                                 5

United States, 469 U.S. 38, 43 (1984); United States v.
Fallon, 348 F.3d 248, 254 (7th Cir. 2003).
   Ross raises one other challenge to his conviction, one that
is before us in a rather unusual “here today, gone tomor-
row” 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—which cast some doubt on the
government’s claim that Ross possessed a firearm at any
time close to the date in the indictment—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, 334 F.3d 670, 673 (7th Cir. 2003);
United States v. Trennell, 290 F.3d 881, 887-88 (7th Cir.
2002); United States v. Milstein, 401 F.3d 53, 65 (2nd Cir.
2005); United States v. Floresca, 38 F.3d 706, 710-11 (4th
Cir. 1994) (en banc). Otherwise the Fifth Amendment right
of a defendant not to be prosecuted unless a grand jury
determines that there is probable cause to prosecute him for
the crime for which he is to be tried could be easily circum-
vented. Stirone v. United States, 361 U.S. 212, 216 (1960);
United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001);
United States v. Field, 875 F.2d 130, 133 (7th Cir. 1989).
Realistically, federal grand juries today provide little
6                                                No. 04-2124

protection for criminal suspects whom a U.S. Attorney
wishes to indict. Nevertheless, that is not a realism to
which judges are permitted to yield.
  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, 170 U.S. 606, 612-13 (1898);
United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.
1988); United States v. Krepper, 159 F.2d 958, 964 (3rd Cir.
1946), we’ve found no cases that hold that a huge dis-
crepancy, like 4 years here, is permissible. The canonical
formula is that “when ‘on or about’ language is used in an
indictment, proof of the exact date of an offense is not re-
quired as long as a date reasonably near that named in the
indictment is established.” United States v. Ford, 872 F.2d
1231, 1236-37 (6th Cir. 1989); see, e.g., United States v.
Castillo, 140 F.3d 874, 885 (10th Cir. 1998); United States
v. Nersesian, 824 F.2d 1294, 1323 (2nd Cir. 1987). Four
years isn’t “reasonably near.” United States v. Hinton, 222
F.3d 664, 672-73 (9th Cir. 2000), cites two cases, involving
2-year and 7-month discrepancies respectively, to illustrate
unreasonable departures from charging language in an
indictment.
  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.
No. 04-2124                                                7

  So Ross has a strong argument, one his lawyer argued
about in her opening brief. But then, bizarrely, in the open-
ing sentence of her reply brief, the lawyer wrote, without
further elaboration: “After reviewing the brief for the
Plaintiff-Appellee [i.e., the government], the defendant con-
cedes this issue.” Essentially, she threw away a winning
argument—“Here today, gone tomorrow.” But after oral ar-
gument, 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, 15 F.3d 408,
415 n.7 (5th Cir. 1994). Given the situation here, we will
allow the retraction and find for Ross on the resurrected
issue we just discussed.
  Accordingly, we VACATE Ross’s conviction and sentence
and REMAND the case to the district court for a new trial.
8                                         No. 04-2124

A true Copy:
      Teste:

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




               USCA-02-C-0072—6-20-05
