In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2589

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALAN L. KLEBIG,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 06 CR 64—Charles N. Clevert, Jr., Chief Judge.

ARGUED OCTOBER 30, 2009—DECIDED NOVEMBER 2, 2009

OPINION PUBLISHED APRIL 8, 2010

Before CUDAHY, POSNER and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. A jury convicted Alan L. Klebig

of possessing an unregistered rifle and an unregistered

silencer, in violation of 26 U.S.C. §§ 5861(d) and 5871.

Klebig appealed both his conviction and his sentence. On

November 2, 2009, shortly after we heard oral argument

in this case, we issued an Order reversing the judgment

of conviction and remanding for a new trial. We noted

that an opinion would follow our Order. This is that

opinion.
2 No. 08-2589

I.

On October 18, 2005, Alan Klebig had a peculiar collection of things in his home and yard. In addition to the

dozens of squirrel tails and shiny compact discs that

adorned his fence and yard, his house and garage contained dozens (if not hundreds) of containers filled with

caustic chemicals and other unidentified substances. The

walls and floor inside his garage were covered with tools,

cords, cables, canisters, and just plain junk from every

imaginable category. Even the rafters of the garage were

filled with clutter, including a web-footed doll that was

suspended from the ceiling beams by its head. His basement contained a similar collection of chemicals, tools

and odds-and-ends covering every shelf, every inch of

wall space and most of the floor. Every countertop and

tabletop surface in his kitchen was crowded with what

can only be described as stuff. He was not a good housekeeper. His living room and bedrooms were also in disarray. His home could not have been considered “guest

ready” unless the guests were a hazmat team and a van

full of Merry Maids. On his front door, he displayed a

small but threatening sign that warned visitors that

“Nothing Here Is Worth Dying For.” He had installed

security cameras to monitor his house and property. An

avid hunter, his home held almost two dozen firearms

of various types and sizes as well as ammunition and a

crossbow and arrows. Some of the guns were stored in a

cabinet and a toolbox but many were strewn around

the house, blending in seamlessly with the rest of the

mess. Near the front door was a loaded shotgun and a
No. 08-2589 3

A silencer is considered a “firearm” for the purposes of the 1

statute. See 26 U.S.C. § 5845(a)(7) (“The term firearm means . . .

any silencer (as defined in section 921 of title 18, United States

Code)”). Section 921, in turn, defines the term “firearm silencer”

as “any device for silencing, muffling, or diminishing the

report of a portable firearm, including any combination of

parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and

any part intended only for use in such assembly or fabrication.”

As we have noted, Klebig legally possessed more than 2

twenty other guns. We will refer to the rifle charged in the

indictment as the sawed-off rifle or the charged rifle or the

unregistered rifle, in order to distinguish it from the firearms

he held lawfully.

cane that could be pulled apart into “like a Samurai

sword type of thing.” Tr. at 28.

We know that this was the state of Klebig’s home on

October 18, 2005 because, at his trial for possessing two

unregistered firearms, the government entered into 1

evidence witness testimony and a series of photographs

depicting Klebig’s home and yard. Klebig was charged

under Sections 5861(d) and 5871 with knowingly possessing a firearm and a silencer which were not registered to him in the National Firearms Registration

and Transfer Record. The unregistered firearm was a .22-

caliber rifle with a sawed-off barrel, a missing stock, and

two magazines of ammunition taped together. The total

length of the sawed-off rifle was thirteen inches and the

barrel was approximately six inches long. This unregis- 2

tered rifle was found under Klebig’s bed, along with a
4 No. 08-2589

Klebig was allegedly involved in a dispute with an elderly 3

neighbor. According to the Watertown Police Department,

Klebig blamed his neighbor for reporting him to local officials

for various property code violations. The local building inspector issued thirty-three tickets to Klebig, resulting in fines in

excess of $5000. The neighbor’s home and yard were

damaged by unknown substances that had been sprayed or

poured on her house and lawn. Police officers obtained a

warrant to search Klebig’s home for chemicals that could cause

that kind of damage. That search warrant, which led to the

discovery of the unregistered firearms at issue in the instant

case, was the subject of an earlier appeal. See United States

v. Klebig, 228 Fed. Appx. 613 (7th Cir. 2007).

Playboy magazine, as the government informed the jury

in opening statements, and as a government witness

helpfully reminded the jury during testimony. The

silencer consisted of an oil filter taped to the end of the

barrel of a different rifle that was leaning against the

wall inside his bedroom closet. Both the unregistered rifle

and silencer were seized in a search of Klebig’s home on

an unrelated matter.3

The main issue at the trial was whether Klebig knew

that the firearm under his bed possessed the characteristics that required it to be registered as a rifle and

whether he intended to use the oil filter as a silencer. Not

all rifles are required to be registered in the National

Firearms Registration and Transfer Record (“Record”) but

a “rifle having a barrel or barrels of less than 16 inches

in length,” or a “weapon made from a rifle if such

weapon as modified has an overall length of less than
No. 08-2589 5

26 inches or a barrel or barrels of less than 16 inches in

length” must be registered. 26 U.S.C. §§ 5845(a)(3) and (4).

Klebig did not contest the government’s characterization

of the sawed-off rifle as meeting this definition. Rather,

he contended that he did not know it was a rifle but

thought it was a modified pistol that did not require

registration. Klebig also argued that he did not intend

to use the oil filter as a silencer but rather as a flash suppressor, a use that does not require registration. See 26

U.S.C. § 5845(a)(7). Because of this defense, Klebig’s

familiarity with firearms and silencers was a major issue

at trial.

Before the jury trial began, Klebig’s attorney moved

in limine to exclude from evidence the sign boasting,

“Nothing Here Is Worth Dying For” and also the presence

of a surveillance system in Klebig’s home. Counsel also

sought to exclude references to other items seized from

Klebig’s house including chemicals, oils, prescription

bottles, marijuana, and syringes. He asked the court to

prohibit references to the reasons the search warrant was

issued in the first place, and any mention of an investigation into damage caused to his next door neighbor’s

home. He argued that none of this evidence was relevant

to the issue of whether Klebig knowingly possessed two

firearms without having registered them as required

by law. If the court deemed the evidence relevant, he

argued in the alternative that any probative value was

outweighed by the prejudicial effect of this evidence,

and that this was inadmissable character evidence.

At a hearing on the motion, the government agreed it

would not refer to the investigation into damage to the
6 No. 08-2589

property of Klebig’s neighbor. The government also

indicated it would not introduce evidence of the marijuana or syringes found in Klebig’s home, and agreed

it would not refer to the reasons the search warrant

was issued. The government argued, however, that the

sign and the surveillance were relevant because, like the

sawed-off rifle and the silencer, they were anti-burglary

devices. The government characterized the sign and

the security cameras as “inextricably intertwined” with

Klebig’s possession of the charged firearms. The sawed-off

rifle and the silencer would be intimidating items that

would discourage burglars, the government argued,

much like the sign and the surveillance system. The court

agreed and denied the motion in limine as to those

items. The court did not expressly address the part of

Klebig’s motion related to chemicals.

In its opening statement, the government described the

charges against Klebig and then turned to “the heart and

the meat of this case.” The government noted that the

Watertown Police Department executed a search warrant on Klebig’s home on October 18, 2005:

They came to his address, and what did they see. They

went to the door. They saw two double steel doors, and

they saw disks on the side of his property strung up

which shined light into a neighbor’s house. They

knocked on the door and made entry.

Next to the door before gaining entry they saw a sign

that read something along the lines of nothing in this

house is worth dying for or nothing in here is worth

your life, a sign to that effect. 
No. 08-2589 7

Tr. at 16. The prosecutor also mentioned a loaded rifle

next to the front door, and other rifles, guns and ammunition scattered throughout the house, in the living room,

kitchen and bedrooms. The government also described

the police officers finding a rifle with an oil filter taped to

the end of the barrel in Klebig’s bedroom closet. The

officers also searched under Klebig’s bed:

One officer pulled out another—a handgun from

underneath the defendant’s bed. Underneath the

defendant’s bed were some papers, a Playboy magazine, a DVD, some type of DVD case; but the handgun

that they pulled out wasn’t the one with the scope

that they saw initially.

They pulled out another gun from underneath the

defendant’s bed. And what was it. It was a gun with a

sawed-off barrel, with a scope on it, with two magazines taped to the bottom of it. Recognizing that as

an illegal weapon, they seized that.

Tr. at 18. The officers found on Klebig’s bedroom floor

another oil filter with what appeared to be a bullet hole

shot out on one end. In the second and third bedrooms

of the house, the officers found additional firearms and

“surveillance equipment for the defendant to monitor

the outside of his house. They found somewhere in the

neighborhood throughout the house, somewhere in the

neighborhood of 50 to 100 squirrel tails.” Tr. at 19.

The government’s first witness was Detective Michael

Beisbier, the Watertown police officer who conducted

the search of Klebig’s home. After describing his position
8 No. 08-2589

and experience and establishing his role in the search,

the government explored the particulars of the search:

Q: And what did you observe outside the house when

you arrived?

A: We walked up the—like the front stoop to front

door. It’s double steel doors that lead into the

house. And there’s a sticker on the door that said

something to the effect of nothing in this residence

is worth dying for.

Q: Did you also observe objects strung up along

the defendant’s property?

A: Yes.

Q: What, if anything, did you observe?

A: Probably 50, 60 squirrel tails hanging throughout

the property along with these like CDs hanging

from strings.

Q: Were you able to observe the effect that the CDs

had hanging on the strings?

A: I guess I didn’t see what was on them, no.

Q: Do you know whether it caused a reflection onto

the neighbor’s property?

A: Yes, yes. They were strung up on the property line.

Tr. at 23-24. After eliciting a general description of the

search from Detective Beisbier, the government entered

into evidence photographs of the outside of Klebig’s

house, including photos that depicted, in part, the outside of the front door from across the width of the drive-
No. 08-2589 9

Indeed, an examination of the photos with a magnifying 4

glass reveals the presence of a sticker that is a few inches

square. Any words on the sticker could have been read only by

a person standing on the porch, immediately in front of the

door. On cross-examination of Detective Beisbier, Klebig’s

lawyer introduced a closer view of the door, but again, no

words were discernable on the small sticker. Ex. 1001.

way. Using those photos as a reference, the government

asked, “And describe to the jury where the sign was or

the notice that said words to the effect of nothing in

here is worth dying for.” The detective answered, “It

was on the door. You can’t really see it, but as I recall

it’s on the door.” Tr. at 27. The detective also con- 4

firmed that the CDs hanging from strings along the

property line, which can be seen in two photos, were

present on the day of the search.

The government continued to enter into evidence

photographs of the interior of Klebig’s home, asking

Detective Beisbier to point out for the jury the location

of firearms and ammunition he found in the living room

and kitchen. At this point, Klebig’s attorney objected to

the prejudicial nature of the testimony pointing out each

and every one of the legally owned guns in the home,

especially since Klebig had conceded in his opening

argument that he possessed a number of guns that he

purchased himself and also inherited from his father.

Counsel pointed out that the government had been eliciting testimony from Detective Beisbier for a half hour

without addressing anything related to the merits of the

case. After initially directing the government to limit
10 No. 08-2589

further testimony to relevant matters, the court reversed

itself and allowed the testimony because Klebig had

implied in his opening statement that he was not an

expert with firearms.

The government next led the witness through a series

of photographs taken in Klebig’s rather untidy bedroom

where the officers found the sawed-off rifle and the

long rifle with the attached oil filter. Using the photos as

a guide, Detective Beisbier pointed out a dresser on

which he found ammunition, the long rifle with the oil

filter in the closet, the second oil filter, and the sawed-off

rifle recovered from under the bed. Detective Beisbier

testified that he saw a firearm under the bed, and warned

a fellow officer to remove it carefully because “[n]inety

percent of his guns were loaded.” Tr. at 41. The other

officer removed a silver revolver, and then went back

to retrieve the gun Detective Beisbier had seen from

his side of the bed:

I said there’s another gun underneath there, Dave, just

be careful; and as he set that one down, he went

back under. He had to move some items from underneath the bed; papers, a Playboy, I think, or two; and

then he had to reach down and pull the gun out, and

that’s the one—I said to him the one I see has a

scope on it. . . . and it was a .22 rifle that didn’t have

a stock on it and that the end of the barrel was cut off

of it.

Tr. at 41. Detective Beisbier testified to then finding a

loaded .45-caliber handgun, a crossbow with a quiver of

arrows, .12-gauge rounds, approximately 1000 BB gun
No. 08-2589 11

rounds, and a container of .45-caliber shells, all in the

master bedroom. In addition to the photos, the sawed-off

rifle and the long rifle with the oil filter taped to the

end were also entered into evidence during Detective

Beisbier’s testimony.

Detective Beisbier identified photos of the next bedroom, where he found several additional firearms, some

in a gun cabinet and some leaning against a wall. Some

were loaded and some were not. The second bedroom

also contained a surveillance system hooked up to a

camera mounted outside and pointing at the front door.

In the third bedroom, the detective found another firearm, in a case, leaning against a wall. The room also

contained a camera on a tripod facing out the window.

The prosecutor next led Detective Beisbier through a

series of photographs of Klebig’s basement, which contained a vast array of chemicals and tools, as well as a

motorcycle and a number of items that were both odd

and alarming in appearance. For example, one photo

portrayed a small plastic cooler, the type that a person

might carry to a picnic, containing a plastic bag of motor

oil. Tr. at 54; Ex. 26. Another portrayed a large soda

fountain canister converted to “a like weed eater sprayer

gun.” Tr. at 54; Ex. 27. Yet another depicted a plastic ice

cream tub containing a liquor bottle and a jug. Ex. 28.

Detective Beisbier testified, “That are, those are in the

laundry room on the shelving just above the washer and

dryer, the shelving, that are bottles of I believe to

be acid.” Tr. at 54. Although a few of the bottles in the

basement were identifiable substances such as common
12 No. 08-2589

household cleaners and detergents, the vast majority of

the containers were unmarked or had illegible labels. On

some containers, the words “caution” and “corrosive” were

visible, and many of the shelves holding the bottles and

jugs were partly corroded. In one picture, the arm of a

person wearing a white glove can be seen pulling cords

and cables back to reveal five or six plastic gallon-size jugs,

each filled with a black substance and hand-labeled “oil.”

Ex. 33. When Klebig’s lawyer objected to these photos

and photos of the garage interior on relevance grounds,

the government contended that the pictures portrayed

“all sorts of things mechanical” and were relevant to

Klebig’s technical and mechanical abilities. Tr. at 56.

Although Klebig’s counsel asserted that he had not

called into question his client’s mechanical abilities, the

court overruled the objection.

The photos of the garage were equally odd. One

photo depicted a full length mirror leaning against the

outside of the garage door, next to a large jug and a

bucket on stained concrete. Ex. 37. Detective Beisbier

indicated that one of the containers held oil. Tr. at 58. As

with most of the other containers in the garage and basement, the jury was left wondering what was in the other

one. Five pictures of the garage interior revealed two

motorcycles (or parts of motorcycles), several more soda

fountain canisters, buckets and jugs containing unidentified liquids and other substances, cables, cords, tools,

and crates, as well as a large number of objects that

simply cannot be identified. Exs. 38-42. As we noted

earlier, a web-footed doll was suspended from the ceiling

by its head, and the rafters were also filled with junk. Ex.
No. 08-2589 13

On cross-examination, Detective Beisbier testified that he 5

found two handguns locked in a toolbox in the basement. The

guns are not visible in the photos of the basement and the

government did not ask Detective Beisbier on direct examination to point out the location of firearms in the basement. 

38. The amount of clutter was breathtaking. None of the

photos from the basement or garage depicted firearms or

ammunition.5

Earl Griffith, a firearms expert from the Bureau of

Alcohol, Tobacco and Firearms (“ATF”) testified that he

examined the sawed-off rifle and identified it as a

Squires Bingham .22-caliber long rifle, manufactured in

the Philippines and sold by Kmart in the United States.

He noted that the barrel had been crudely cut off, the

stock lug had been removed, and the back rear sight had

been removed. A scope was mounted on the trigger

mechanism. Griffith also displayed for the jury an intact

Squires Bingham rifle that had not been modified in any

way. He compared the intact rifle to the one found

under Klebig’s bed and described all of the similarities

and all of the differences. In describing the sawed-off

rifle, he noted that the front part of the barrel had been

removed and the front sight was removed along with it.

He remarked:

See the marks where someone probably used a pipe

cutter to take it off; as it goes around and you tighten

it, goes around and it came off.

Tr. at 244. He testified that he test-fired the sawed-off rifle

and it was capable of being fired. He described the differ-
14 No. 08-2589

The report of a firearm is the sound it makes on being 6

fired. Tr. at 248-49.

ence between a pistol and a sawed-off rifle, and concluded that Klebig’s firearm was a rifle rather than a

pistol. Griffith also testified about silencers and flash

suppressors and opined that the oil filter taped to the

long rifle found in Klebig’s bedroom closet functioned as

a silencer. Griffith had seen oil filters employed for

this purpose twenty or thirty times in his career. He

tested the long rifle with the oil filter against a similar

long rifle without a filter and noted that, on average, the

oil filter reduced the rifle report by approximately six

decibels. On cross-examination, the defense questioned

6

Griffith about pictures of pistols that bore some physical resemblance to the sawed-off rifle.

After this cross-examination, the government informed

the court that it intended to introduce into evidence the

firearms that Klebig legally possessed and turned over

to law enforcement officers when these charges were

brought against him. Tr. at 331; 368-69. The government

argued that the defense had put at issue Klebig’s knowledge of firearms by suggesting that the sawed-off rifle

resembled a number of pistols that were not required to

be registered. The government contended it was relevant

for the jury to see exactly what guns Klebig possessed

and maintained. Klebig’s lawyer objected to the physical

presentations of the guns, arguing that the same

purpose could be accomplished with photographs of

Klebig’s guns. Tr. at 331-32; 369-70. He asserted that the
No. 08-2589 15

prejudice of showing the jury twenty-three additional

guns individually or even as a group far outweighed the

probative value, especially because the same goal could be

achieved through the introduction of color photographs

of each gun that the government itself produced. The

court overruled the objection without comment.

The government then called to the stand Sergeant

Katherine Selck of the Watertown Police Department. The

prosecutor handed Klebig’s guns to Sgt. Selck one at a

time, asking her in each instance to identify the gun, and

verify that it came from Klebig. Through this process, the

government introduced a Colt Trooper .357 revolver; a

Ruger .32 single six-shot; a Davis Industries Model .22,

commonly called a Derringer; a Ruger .22-caliber revolver;

a High Standard double nine .22-caliber revolver; a .45-

caliber Pedersoli black powder; a .50-caliber Connecticut

Valley Arms black powder; a Mossberg .12-gauge

shotgun; a .20-caliber pellet gun; a Jukar black powder; a

Smith and Wesson 38 Special revolver; a Smith and

Wesson .177-caliber air gun; a Repeatair Crosman airgun;

a .45-caliber Colt Series 70 semiautomatic handgun; a .22-

caliber Sears-Roebuck 282; a Crosman airgun; a Western

Field .20-gauge shotgun; a Ruger Model .22-caliber; a

Remington .12-gauge shotgun; a Western Arms doublebarreled shotgun; a Daisy BB pellet gun; a .357-caliber

Marlin Model 1897; and a Topper Model .12-gauge shotgun. Each of the twenty-three guns was laid on the floor

in front of the witness box, as Sgt. Selck identified

them, forming an arc around the witness box. Tr. 370-86.

The guns remained on the floor while the court conferred

with counsel in a sidebar that occupied three pages of
16 No. 08-2589

trial transcript, at which time the jurors were released

for lunch. Over the lunch break, Klebig’s lawyer asked

the court to remove the firearms:

One last issue, Judge. Can we have the guns removed

from the floor and around the witness table over the

lunch hour and put someplace else? Right now the

record should reflect they are lined up in front of the

witness box and around the side on the floor.

There’s about 25 guns laid out there as well as the

guns that are—

Tr. at 405. The court interrupted by stating, “They will

be appropriately removed and stored.” Tr. at 405. When

the jury returned from lunch, the guns were no longer

on the floor.

Some guns returned to the witness stand during the

government’s cross-examination of Klebig, who testified

on his own behalf. On direct, Klebig testified that he

owned approximately twenty-five guns, that he had been

an avid hunter since the age of sixteen when his father

began teaching him to hunt, and that he had inherited

about half of his firearms from his father. Klebig also

enjoyed target practice, read magazines related to

hunting and outdoor activities, and attended gun shows.

He explained that the compact discs hanging in his yard

were meant to keep mice and squirrels out of his garden.

He placed the squirrel tails around his yard after reading

in an outdoor magazine that birds would use the fur

to make nests. He explained that he had a security

system in his home because his work required him to be

away from home frequently. He was experimenting
No. 08-2589 17

Mark DeBlare, the original owner of the sawed-off rifle,

7

testified that he broke the stock hitting a raccoon over the head

when hunting. Apparently, the raccoon continued to climb

out of a tree after DeBlare “unloaded the clip into the raccoon.”

Tr. at 153. After the attack on the hard-headed and unusually

resilient raccoon, all that remained of the rifle was the barrel

“with a little bit of the wood on it.” Tr. at 153. DeBlare later

sold the broken rifle to Larry Klebig, the defendant’s brother.

Although the stock was broken, the barrel was intact when

Larry Klebig took possession. The record does not reveal who

sawed off the barrel after Larry Klebig took possession of

the gun.

with oil filters, he claimed, to see if they would suppress

the flash of his shotgun. He intended to hunt for a troublesome raccoon on his mother’s property at night (raccoons

are nocturnal) and did not want to draw the attention of passing motorists. He testified that he found the

sawed-off rifle in the basement of his father’s home after

his father died. He thought it was a pistol missing its

grip or stock. He knew the barrel was sawed-off but

assumed that his father had sawed it off because the

tip had been damaged. After firing the weapon a few 7

times, he stopped using it because it was inaccurate

and clumsy to hold.

On cross-examination, the government questioned

Klebig about four of his pistols and three of his long guns,

comparing features and asking how he would hold

them and operate them. Tr. at 451-62. It is unclear from

the record how many of the guns were visible to the jury

during this exchange, or where the guns were in the
18 No. 08-2589

courtroom. After handing Klebig four pistols, the government indicated it was turning the discussion to long

guns. At that point, the court intervened and directed the

government to “remove what’s up there, please.” Tr. at

453. After questioning Klebig about long guns, the government turned to the collection of firearms as a whole:

Q: There are a number of firearms here. Do you see

any with a sawed off barrel?

A: Not that I can see, no.

Q: All right. So none of them have a sawed off barrel.

Are any of them missing a stock?

A: I see they put some of them back together.

Q: No. I’m asking you do you see any of your firearms

that are missing a stock?

A: No.

Q: Do you see any of your firearms that are missing

a grip?

A: No.

Tr. at 460. Presumably, all of Klebig’s firearms were

present for this line of questioning but the record does not

reveal how they were displayed. The government also

questioned Klebig about his crossbow and arrows, his

surveillance cameras, and the sign on his door “that said

nothing in here is worth your life or worth dying for,

words to that effect.” Tr. at 464.

Prior to the start of closing arguments and outside the

hearing of the jury, the government told the court that it
No. 08-2589 19

wished to argue to the jury that the second oil filter

found on Klebig’s bedroom floor “fit” the sawed-off rifle,

and that the “markings match.” Tr. at 551-53. When the

court asked the prosecutor to clarify the inference that

she wished the jury to draw from the demonstration,

she replied that, taking the sawed-off rifle and the

second oil filter together, “there’s an alternative suggestion that he, in fact, used this as a silencer on this

particular item.” Tr. at 552-53. This inference, she contended, was in turn relevant to Klebig’s knowledge of

the use of oil filters as silencers. Klebig objected to this

argument because nothing in the record tied those

items together, and nothing in the record supported the

inference the government was attempting to draw, that

Klebig had used the second oil filter as a silencer on

the sawed-off rifle. The court decided to allow the argument. The government proceeded to demonstrate twice

(once in the first part of closing arguments and once

in rebuttal) that the second oil filter fit on the barrel of

the sawed-off rifle. The prosecutor also told the jury

that the markings on the barrel “matched” the oil filter.

The last thing the jury saw or heard was the second

demonstration of the second oil filter being fitted onto

the sawed-off rifle. Less than an hour after entering

deliberations, the jury sent out a note requesting the

sawed-off rifle, the second oil filter, the long gun with

the oil filter taped to the barrel, and the clip from the

sawed-off rifle, in that order. The court arranged for the

jury to examine those items. The jury later returned a

verdict finding Klebig guilty on both counts. The court

sentenced Klebig to twenty-seven months’ imprisonment
20 No. 08-2589

on each count, to be served concurrently. Klebig appealed.

As we noted earlier, after hearing oral argument, we

issued an order reversing the judgment of conviction

and remanding for a new trial. We indicated that this

opinion would follow.

II.

On appeal, Klebig challenges the district court’s decision to allow evidence relating to the sign on his front

door and his surveillance system. He also contends that

the court erred in allowing certain evidence relating to

his legal possession of other firearms. Finally, Klebig

maintains that the court erred in permitting the government to conduct a demonstration during closing arguments that introduced new, unsupported facts into the

record. Because we are reversing his conviction and

remanding for a new trial, we will not address his claim

that the court failed adequately to consider his argument

that he was entitled to a sentence of probation with

community confinement.

A.

We review evidentiary decisions for abuse of discretion.

United States v. Wescott, 576 F.3d 347, 355 (7th Cir. 2009),

cert. denied, 2010 WL 596600 (2010); United States v.

Millbrook, 553 F.3d 1057, 1062 (7th Cir. 2009). Some of the

evidence admitted in this case forces us to return to

first principles. With certain exceptions, all relevant

evidence is admissible, and evidence which is not
No. 08-2589 21

relevant is not admissible. Fed. R. Evid. 402. “ ‘Relevant

evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401.

See also Huddleston v. United States, 485 U.S. 681, 687 (1988)

(Rules 401 and 402 establish the broad principle that

relevant evidence—evidence that makes the existence

of any fact at issue more or less probable—is admissible

unless the Rules of Evidence provide otherwise). With

respect to the charge of possessing an unregistered shortbarreled rifle, Klebig conceded all of the facts of consequence except whether he knew that the firearm was a

rifle or a weapon made from a rifle. He conceded that

the sawed-off rifle met the statutory definition, that he

possessed it, and that it was not registered. He contended that he thought the firearm was a modified

pistol that did not require registration. His knowledge

of whether this firearm was a rifle or a pistol was thus

the central fact of consequence for that charge. On

the silencer charge, Klebig again conceded that he possessed the oil filter and that it was not registered. He

contested only his knowledge that the oil filter was a

silencer and his intent to use it as a device for silencing,

muffling, or diminishing the report of a portable firearm. He contended instead that he was testing the oil filter

as a flash suppressor, a device which is not required to be

registered, and that he did not intend to diminish the

report of the rifle and was not aware that the oil filter even

had that effect. As with the sawed-off rifle, the only fact of

consequence was Klebig’s knowledge and intent with

regard to the oil filter.
22 No. 08-2589

So we begin by asking how a strange and rude sign on

Klebig’s door threatening that “Nothing Here Is Worth

Dying For” makes it more or less likely that Klebig knew

the firearm was a modified rifle rather than a modified

pistol. Similarly, we must ask whether this sign would

help a jury answer the question of whether Klebig knew

or intended to use the oil filter as a silencer rather than

a flash suppressor. In each instance, the government

urged the court below and argues to us on appeal that the

sign and surveillance system were admissible under the

“inextricably intertwined” doctrine. According to the

government, these items are inextricably intertwined

with the crime of knowingly possessing unregistered

firearms because they are probative of Klebig’s:

security conscious state of mind, which made it more

probable than not that he knowingly possessed a

sawed-off rifle, and a long rifle with a silencer. Both

items, [sic] have menacing appearances, and appear

likely to deter an intruder as the sign was meant to

do. Thus, this evidence was intertwined with Klebig’s

knowing possession of these illegal firearms.

Government’s Brief at 14. But Klebig’s preoccupation with

security concerns has nothing to do with his knowledge

that the sawed-off rifle was a rifle rather than a pistol or

his intent to use the oil filter as a silencer rather than a

flash suppressor. Both legal and illegal guns are menacing

to a burglar and Klebig legally possessed a small arsenal

that would have sent any burglar packing. His legally

owned firearms were visible all over the house, but the

sawed-off rifle was under his bed (along with a legally
No. 08-2589 23

Although it is tempting to agree that the intimidating ap- 8

pearance of the sawed-off rifle or the long gun with the oil

filter would frighten a would-be burglar, the issue here is

Klebig’s knowledge and intent about these items. Items that

appear substantially identical to the charged items here may

be owned legally. Indeed, these very items may be legally

possessed if they are properly registered. Whether the items

would intimidate a burglar makes it no more or less likely that

Klebig knew the firearm was a rifle and whether he intended

to use the oil filter as a silencer.

possessed pistol) and the long gun with the oil filter

attached was in his bedroom closet. The government

has been unable to explain why security concerns make

it more likely that a person would know that a modified

gun started out as a rifle instead of as a pistol. Klebig did

not deny that he knew the gun was in his collection; he

denied only knowing that it was a sawed-off rifle instead

of a sawed-off pistol. We are hard-pressed to draw any

rational connection between sawed-off rifles, silencers

and burglars. A person normally saws off the barrel of a

gun in order to make the gun easier to conceal. A 8

silencer makes it less likely that the shot would be

heard. But neither of these functions makes sense in the

context of protecting a home against burglary. There

is generally no need to conceal a gun from a burglar and

if there was, Klebig admittedly possessed many handguns that would have been far easier to conceal and shoot

than the awkwardly configured sawed-off rifle. And a

homeowner hardly wants to muffle the sound of

the shot when taking aim at a burglar. A homeowner
24 No. 08-2589

The government also twice took note of the “double steel

9

doors” on Klebig’s house as part of his security-conscious

attitude. Although the record does not reveal the full composition of the doors, they appear from the photographs to be two

ordinary steel entry doors in a side-by-side configuration.

According to Consumer Reports, “Steel doors account for about

half the market, competing with fiberglass and wood.” See

http://www.consumerreports.org/cro/home-garden/homeimprovement/hardware-building-supplies/doors-entry/entrydoors-1004/overview/index.htm (last visited April 5, 2010).

There is no evidence in the record regarding whether steel

doors are more secure than other types.

would want the burglar to hear the shot and would

likely want neighbors to hear the commotion as well, so

that they might alert the police department.

The government’s explanation simply does not make

sense. It does not take much of a stretch to imagine the

real relevance of the sign and the surveillance system to

a jury. In combination with his legally owned guns, the 9

vast amounts of clutter, the squirrel tails and compact

disks hanging in the yard, and the collection of unidentified but apparently caustic chemicals, the sign and the

surveillance cameras make Klebig appear to be a dangerous and perhaps unbalanced man, an oddball, perhaps

a survivalist or a gun nut. The government even saw fit

to twice mention the Playboy magazines found under

Klebig’s bed along with the sawed-off rifle, evidence

which had no relevance or purpose other than to perhaps

embarrass Klebig. This is all character evidence, which

is generally inadmissible for the purpose of proving
No. 08-2589 25

action in conformity with that character. Fed. R. Evid.

404(a); Huddleston, 485 U.S. at 685; United States v. Bonner,

302 F.3d 776, 781 (7th Cir. 2002) (general evidence of the

defendant’s character is inadmissible in criminal cases).

Rule 404(b) “generally prohibits the introduction of

evidence of extrinsic acts that might adversely reflect on

the actor’s character, unless that evidence bears upon a

relevant issue in the case such as motive, opportunity, or

knowledge.” Huddleston, 485 U.S. at 685. This evidence

that Klebig posted a threatening sign on his door, filled

his home with security cameras, and stowed adult magazines under his bed is wholly irrelevant to whether

Klebig knew the sawed-off gun was a rifle or a pistol

and whether he intended to use the oil filter as a silencer

or a flash suppressor.

We have criticized the “inextricably intertwined” or

“intricately related” doctrine (as we have called it at

times in other cases) as a vague theory that tempts prosecutors to expand the exceptions to Rule 404(b) beyond

the proper boundaries of that rule. United States v. Edwards,

581 F.3d 604, 608 (7th Cir. 2009), cert. denied, 2010 WL

250838 (2010); United States v. Taylor, 522 F.3d 731, 735 (7th

Cir.), cert. denied, 129 S. Ct. 190 (2008). Rule 404(b) concerns evidence of 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,
26 No. 08-2589

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). The government’s argument about the

sign and the surveillance system is really an argument

that these items were relevant to knowledge and

intent, recognized exceptions to the inadmissibility of

“other acts” evidence. Because knowledge and intent

are allowable uses of other acts evidence, there is no

need to “spread the fog of ‘inextricably intertwined’ over

them.” Taylor, 522 F.3d at 735. As we have just noted,

though, neither the sign nor the security system in

Klebig’s home shines any light on his knowledge or

intent regarding the sawed-off rifle and silencer. The

aim of Rule 404(b) “is simply to keep from the jury evidence that the defendant is prone to commit crimes or

is otherwise a bad person.” Taylor, 522 F.3d at 735. Yet

that seems to be exactly the use to which this evidence

was put.

If this evidence had any slight relevance, it would be

outweighed by the danger of unfair prejudice and confusion of the issues. Fed. R. Evid. 403. United States v.

Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). “Evidence is

unfairly prejudicial if it induces the jury to decide the

case on an improper basis rather than on the evidence

presented.” Conner, 583 F.3d at 1025. See also Old Chief

v. United States, 519 U.S. 172, 180 (1997) (evidence is
No. 08-2589 27

Some of the photographs, which displayed the location of 10

weapons in the house, were relevant to the issue of Klebig’s

familiarity and comfort with firearms. With appropriate

instuctions to the jury on the proper use of those photos, they

would be admissible. However, some of the photos, especially

those of the basement and garage, showed no evidence of

firearms or ammunition and served no purpose other than to

show Klebig’s prodigious capacity to collect very odd and

sometimes dangerous looking clutter. On remand, the court

should review the photographs carefully to determine which

have relevance to the issues in the case, and which, although

relevant, bear a risk of undue prejudice that outweighs their

usefulness in helping the jury decide the issues. Irrelevant

photos, especially those which do nothing more than make

(continued...)

unfairly prejudicial when it has an undue tendency to

suggest decision on an improper basis, commonly, though

not necessarily, an emotional one); United States v.

Rogers, 587 F.3d 816, 822 (7th Cir. 2009) (same); United

States v. Coleman, 179 F.3d 1056, 1062 (7th Cir. 1999)

(relevant evidence may be considered unfairly prejudicial

when it has the capacity to lure the fact-finder into declaring guilt on a ground different from proof specific to

the offense charged). Evidence that Klebig is overly

concerned about security, to the point of threatening

visitors at the door with an ominous sign, invites the

jury to decide the case based on their fear or dislike of

Klebig rather than on the real issues in the case, namely,

his knowledge and intent. The same is true of the surveillance system and some of the photographs of the

extensive clutter present in Klebig’s home and garage.10
28 No. 08-2589

(...continued) 10

Klebig appear to be a strange or dangerous man, should

be excluded.

The court abused its discretion when it concluded that

any of this evidence was relevant to the issue of knowledge

and intent. We will defer for now the issue of whether

this error was harmless so that we may consider all

together any errors made at trial.

B.

Klebig also challenged the introduction of certain

evidence relating to the guns he legally owned. Klebig

concedes that his ownership of these weapons was

relevant to the issue of his familiarity with firearms.

He put that issue into play when arguing that he

did not know the sawed-off rifle was a rifle but thought

that it was a pistol, and when he contended that he

was using the oil filter as a flash suppressor and was not

aware it would also reduce the report of the gun. He

objects, however, to the amount of evidence relating to

the legal guns, and the manner in which it was presented.

In particular, he complains that the government led

Detective Beisbier through a room-by-room description

of the firearms and ammunition he found in the house,

and followed up each of those instances with a photograph, so that Detective Beisbier could point out the

locations of various weapons and ammunition he had

just mentioned. The government then introduced into

evidence each of the legally owned firearms Klebig pos-
No. 08-2589 29

sessed, over Klebig’s objection. Klebig argued to the

district court that photographs of the guns would serve

the same purpose of demonstrating Klebig’s extensive

experience with firearms without the unnecessarily

prejudicial effect of displaying approximately two dozen

guns to the jury. When the local police department took

custody of Klebig’s legally owned guns, the officers took

photographs of each gun for inventory purposes, and the

government possessed eight-inch-by-eleven-inch color

photos of each weapon as a result. The court overruled

Klebig’s objection and his alternate suggestion without

comment. As we described above, the government

then led Sergeant Selck through the introduction and

identification of approximately twenty-three firearms,

laying each on the floor in an arc around the witness

stand as they were identified.

The potential prejudice of this evidence was apparent

to the government. The prosecutor sought to reassure the

jury repeatedly that the weapons had been rendered

safe for the courtroom. Near the beginning of Sergeant

Selck’s testimony, the prosecutor asked her to confirm that courthouse building security had cleared the

weapons before they came into the building, and that

they had also been examined and cleared by the courtroom bailiff. Tr. at 372-73. During closing arguments, the

government showed the jury the intact version of the

sawed-off rifle, pointing out the size of the bore hole at

the end of the muzzle. In doing so, the government sought

to demonstrate that the weapon’s flash would be correspondingly small, calling into doubt Klebig’s claim that

he wanted to use the oil filter as a flash suppressor. Tr. at
30 No. 08-2589

563. In order to make her point that the bore hole was

small, the prosecutor literally asked the jury to look into

the barrel of the rifle. Acknowledging the jury’s discomfort with the firearm she was demonstrating, the government attorney assured the jury that the firearm was

safe, telling jurors, “I’m being safe with this firearm,” “if

anyone is uncomfortable let me know,” and “I don’t mean

to make any of you uncomfortable.” Tr. at 563. She followed up the display of this single firearm with another

reassurance: “And I would say just for everyone’s

comfort level that these tags represent that the firearm is

secure. So I just wanted to make sure you know that.” Id.

In response to Klebig’s closing argument, the government

again mentioned the safety of the firearms appearing in

court:

And just so you know, before these firearms come into

court, Special Agent Handy from ATF, over there, he

checks them every day. He has plastic tabs on all of

them. They’re all safety-checked before they come

in here. CSO Hill, who is over there, checks them

before they come into court. Those—Mr. Klebig’s guns

were all inspected by Special Agent Handy and by

Mr. Hill before they came in here. So, I mean, just to

assure anyone if they had thought—They’re all safe.

Tr. at 579. These were acknowledgments that people

generally fear guns, and that the physical presence of a

large number of guns would cause a jury some anxiety.

Conceding that some evidence about the legally owned

firearms was relevant to the key issue in the case, Klebig

argued that the evidence should have come in through
No. 08-2589 31

less prejudicial photographs. The government would still

have been able to make its point, Klebig contends, that

he was familiar with firearms and could tell a modified

rifle from a modified pistol. Although relevant evidence

is presumptively admissible under Fed. R. Evid. 402, a

court has the authority to exclude it if the risks posed

by the introduction of the evidence significantly outweigh its probative worth. Fed. R. Evid. 403; Mihailovich v.

Laatsch, 359 F.3d 892, 906 (7th Cir. 2004). Rule 403 provides:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation

of cumulative evidence.

“Rule 403 thus calls upon the district court to weigh the

need for and probative value of the evidence against

potential harm that its admission might cause.”

Mihailovich, 359 F.3d at 906; Advisory Committee Note

(1972).

We review a district court’s ruling under Rule 403 for

abuse of discretion. United States v. Ellis, 548 F.3d 539, 543

(7th Cir. 2008); United States v. LeShore, 543 F.3d 935, 939

(7th Cir. 2008). Klebig’s familiarity with guns was one of

the key issues in the case, given his defense that he

mistook the sawed-off rifle for a pistol and he did not

intend to use the oil filter as a silencer. That Klebig

owned and personally maintained a wide variety of

handguns and long guns was highly relevant to whether

he could tell the difference between the two when a
32 No. 08-2589

weapon had been modified as was the sawed-off rifle.

The appearance of Klebig’s handguns and long guns was

therefore relevant. Klebig’s comfort and familiarity with

firearms was also relevant, and so the fact that he

stored loaded weapons throughout his home was fair

game for the government to raise.

Two dozen guns in a courtroom is undoubtedly an

alarming sight. The prosecutor’s repeated assurances

that the weapons were not loaded and that all were

examined multiple times to verify that they were secure

demonstrated an awareness that jurors would be apprehensive in the presence of this much weaponry. To make

the point that Klebig was very familiar with firearms, it

was not necessary to lay two dozen guns out on the

floor around the witness box. Nor was it necessary to repeat evidence regarding Klebig’s gun ownership multiple

times. The court appeared to give little consideration

to whether the government could make the same points

with photographs rather than the actual guns, or with

photographs of some guns and physical specimens of a

limited number of the guns. Some of the guns would

likely make the salient point better than others. We

do not mean to suggest that it was not appropriate to

bring any of the guns into the courtroom, but the display

on the floor of guns fanned out around the witness box

served no purpose other than to emphasize the sheer

volume of weaponry that Klebig owned. The effect was

to display his dangerousness rather than his knowledge

or expertise with firearms. Because the district court

allowed the evidence without comment, it is difficult to

assess the court’s weighing of the need for and probative
No. 08-2589 33

value of this evidence against the danger of unfair prejudice. There were far less prejudicial ways to display

the guns and Klebig’s familiarity with them, and on

remand, the court should manage the presentation of

this evidence to focus on Klebig’s knowledge and intent

rather than on the sheer number of guns he possessed.

C.

Klebig also objects to the district court’s decision to

allow the government to conduct a demonstration during

closing argument that had the effect of introducing new

facts into the record. After the close of testimony and

prior to the start of closing arguments, the government

alerted the court that it wished to argue to the jury that

the second oil filter found on Klebig’s bedroom floor “fit”

the sawed-off rifle, and that the “markings match.” Tr. at

551-53. Klebig objected to this argument because nothing

in the record tied those items together, and nothing in the

record supported the inference the government was

attempting to draw, that Klebig had used the second oil

filter as a silencer on the sawed-off rifle. The court decided

to allow the argument. In closing, the government contended that the primary issues were whether Klebig

knew that the sawed-off rifle was a modified rifle

rather than a modified pistol, and whether Klebig intended to use the oil filter as a silencer as opposed to a

flash suppressor. In questioning the credibility of Klebig’s

claim that he intended to use the oil filter as a flash suppressor, the government argued that the second oil filter

found on the floor of Klebig’s bedroom fit on the end of
34 No. 08-2589

the sawed-off rifle. Klebig had testified that he had tried

the second oil filter on the same long gun on which

the charged oil filter was mounted. In the excerpt

below, Exhibit No. 1 was the long rifle with an oil

filter taped to the end of the barrel, Exhibit No. 2 was the

sawed-off rifle, and Exhibit No. 4 was the second oil

filter recovered from the bedroom floor.

Now, I’m going to show you something with regard

to Exhibit No. 2, the sawed off rifle, and Exhibit No. 4.

Now, Mr. Klebig or the defendant testified that coincidentally he had only used Exhibit No. 1 ten years

prior to approximately October 16th. So if his testimony is to be believed, on October 16th for the first

time in ten years he takes out Exhibit No. 4 along with

Exhibit No. 1, he goes to a quarry, he tests Exhibit

No. 4 on Exhibit No. 1, and then he goes ahead and

tests Exhibit No. 1 as it is in its entirety.

And then if his testimony is to be believed on that

date, because he’s testing two oil filters, he has to bring

the tape out with him, he has to bring the equipment

necessary to bore the hole in to get it in and out. He

has to bring all of that to the quarry, if his testimony

is to be believed. So that for the first time in ten years

he goes to the quarry. 

Well, here’s a demonstration. Exhibit No. 2 underneath his bed, Exhibit No. 4 on the floor of his bedroom. The markings fit, the oil filter fits.

Members of the jury, based upon the proximity of the

oil filter to this weapon which was underneath his bed

the defendant indeed did have the intent to use
No. 08-2589 35

Exhibit No. 1 as a silencer and, in fact, had already

used it as a silencer and, in fact, had used, potentially

used Exhibit No. 4 on Exhibit No. 2. It fits.

Tr. at 561-62. In his closing argument, Klebig compared

transcripts of the government’s closing argument with

the ATF agent’s testimony. Klebig noted that the government’s own expert witness had opined that the marks

on the barrel of the sawed-off rifle were probably caused

by a pipe cutter. Klebig had no opportunity to crossexamine the ATF expert about the government’s claim

that the marks were caused by the oil filter found on the

floor rather than by a pipe cutter. Klebig was thus forced

to argue against the demonstration without having any

opportunity to test the government’s claim on the stand.

There is no way to know on this record whether the ATF

expert would have backed up the government’s theory

about how the marks were created on the rifle barrel.

Counsel had no opportunity to cross-examine the government’s expert on this point, and had no opportunity

to put his client back on the stand to deny or explain

this new evidence.

The government later closed its rebuttal argument with

a second demonstration, aided by some of the photographs

of Klebig’s bedroom that had been entered into evidence:

What you see first is the firearm, Exhibit No. 1, in the

defendant’s closet with his clothes. This is a picture of

the scene on October 18th. The next shot documents

where Exhibit No. 4 was found. Exhibit No. 4, an

oil filter, was found in the defendant’s bedroom.

Next picture, please. The next exhibit documents

the Exhibit No. 2 after it was pulled out from the
36 No. 08-2589

defendant’s bed—underneath the defendant’s bed.

Now, I’m going to step out from behind the podium

for a minute, and I’m going to speak loudly. Special

Agent Griffith did testify that he thought this might

have been some vice grip or something like that, but

that’s not inconsistent with the thread mark—with it

matching the thread marks from the oil filter. You’ll

have the opportunity to do this yourself.

You take Exhibit No. 2 with Exhibit No. 4, they were

in close proximity to each other in the bedroom, and

you put them on. It’s a match. The blue ink is worn

away to fit the threads of this oil filter. The sight here

is gone. There would have been a sight—There would

have been a sight here. If there was a sight here,

you couldn’t put the oil filter on.

The proximity of Exhibit No. 4 to Exhibit No. 2 in the

defendant’s bedroom, a match, is inconsistent with

his testimony that he used this as a test for Exhibit

No. 1. It doesn’t work. There’s a Latin phrase I

learned once, res ipsa loquitur, the thing speaks for

itself, and that’s exactly what this does.

Members of the jury, all you need to do is look to the

defendant’s testimony in conjunction with what you

know to be true in this case, and you will—and there

is sufficient evidence to find the defendant guilty

beyond a reasonable doubt on Count One and Count

Two. Thank you.

Tr. at 599-600.

As we noted above, the last thing the jury saw or heard

was this second demonstration of the second oil filter
No. 08-2589 37

being fitted onto the sawed-off rifle. Less than an hour

after entering deliberations, the jury sent out a note

requesting the sawed-off rifle, the second oil filter, the

long gun with the oil filter taped to the barrel, and the

clip from the sawed-off rifle, in that order. The court

arranged for the jury to examine those items, and the

jury later returned a verdict of guilty on both counts of the

indictment. Klebig contends that the prosecutor’s demonstration and argument relating to the demonstration

were improper and constituted prosecutorial misconduct.

In reviewing a claim of prosecutorial misconduct, we

consider first whether the challenged remark by the

prosecutor was improper, and second, whether it prejudiced the defendant. Wescott, 576 F.3d at 355; United

States v. Serfling, 504 F.3d 672, 677 (7th Cir. 2007), cert.

denied, 128 S. Ct. 1718 (2008). Klebig argues that the demonstration and accompanying argument were improper

because they were not based on evidence in the record, but

rather constituted new evidence. Although prosecutors

may not “infuse their closing arguments with facts that

the court has not admitted into evidence, they may

argue reasonable inferences from the evidence that the

jury has seen and heard.” United States v. Waldemer, 50 F.3d

1379, 1383 (7th Cir. 1995). See also United States v. Doyle, 771

F.2d 250, 258 (7th Cir. 1985) (closing arguments are

limited to the facts evidence); United States v. Vargas, 583

F.2d 380, 385 (7th Cir. 1978) (counsel may make arguments reasonably inferred from the evidence presented). 

At some point, however, the inference asked to be

drawn will be unreasonable enough that the sugges-
38 No. 08-2589

tion of it cannot be justified as a fair comment on the

evidence but instead is more akin to the presentation

of wholly new evidence to the jury, which should

only be admitted subject to cross-examination, to

proper instructions and to the rules of evidence.

Vargas, 583 F.2d at 385. See also Doyle, 771 F.2d at 258

(same). Whether an inference is reasonable will, of course,

depend on the particular facts of the case. Waldemer, 50

F.3d at 1384 (the term “reasonable inference” must be

defined contextually). “Whether the evidence bears

logical and proximate connection to the point the prosecutor wishes to prove are perhaps the most obvious

considerations in determining whether the inference is

reasonable.” Waldemer, 50 F.3d at 1384. Another factor

to consider is whether the prosecutor makes the argument solely to inflame the passions of the jury. Id. In

Vargas, we also deemed relevant whether the prosecutor’s

statement would have been subject to a colorable objection if introduced during the trial. Vargas, 583 F.2d at 385;

Waldemer, 50 F.3d at 1384. In Waldemer, we questioned

the utility of this last consideration, but concluded it

could play into the calculus of whether the prosecutor’s

statement was a reasonable inference. Waldemer, 50 F.3d

at 1384.

With these standards in mind, we turn to the prosecutor’s statements here. In particular, Klebig contends that

the government stated new facts when the prosecutor

asserted, “The markings fit,” and “It’s a match. The blue

ink is worn away to fit the threads of this oil filter.” Tr. at

561-62 and 599-600. Additionally, the prosecutor implied
No. 08-2589 39

Any doubt that this inference was the one the prosecutor 11

wished the jury to draw may be dispelled by the prosecutor’s

argument to the court. When the court asked, “[W]hat inference

are you suggesting should be drawn from what you just

demonstrated?” the prosecutor answered, “The defendant’s

knowledge is at issue, I think that’s clear from his testimony

and all the arguments, his knowledge or his intent to use

Exhibit No. 1 [the charged oil filter attached to the long gun] as

a silencer as opposed to a flash hider or flash suppressor.

Here we have this oil filter that was located on the floor. This

[presumably the sawed-off rifle] was located underneath

the bed. It was loaded. The markings match. The defendant

testified that he used this [the second oil filter] at the quarry on

Exhibit No. 1 [the long gun]. My argument is that, you know,

it would be, take these two pieces of evidence and you put

them together, there’s an alternative suggestion that he, in

fact, used this [the second oil filter] as a silencer on this particular item [the sawed-off rifle]. I’m not saying that there is

testimony. I’m just saying based on the evidence in the record

that that’s a fair inference that the jury can draw which goes

to his knowledge of the use of these silencers.” The court

replied, “You may proceed.” Tr. at 552-53.

that Klebig had already used the second oil filter as a

silencer on the sawed-off rifle, and also implied that

because he had used the uncharged oil filter as a

silencer on the sawed-off rifle, it was more likely that he

intended to use the charged oil filter as a silencer:11

“Members of the jury, based upon the proximity of the

oil filter to this weapon which was underneath his bed

the defendant indeed did have the intent to use Exhibit

No. 1 as a silencer and, in fact, had already used it as a
40 No. 08-2589

silencer and, in fact, had used, potentially used Exhibit

No. 4 on Exhibit No. 2. It fits.” Tr. at 562. In effect, she

asked the jury to infer that Klebig had used a different oil

filter as a silencer on a different gun (the sawed-off rifle),

and that this made it more likely that he intended to use

the charged oil filter as a silencer on the long gun. An

argument that a defendant is more likely to be guilty of

the charged crime because he committed the same crime

on another occasion is a propensity argument, and as

such, it would be subject to a colorable objection had it

come in as evidence rather than as argument in closing

statements. Fed. R. Evid. 404(b). The prosecutor also

added to the testimony of the government’s own expert

by claiming that the expert’s testimony was not inconsistent with her new theory: “Special Agent Griffith did

testify that he thought this might have been some vice

grip or something like that, but that’s not inconsistent

with the thread mark—with it matching the thread

marks from the oil filter.” Tr. at 599-600.

The issue before the jury was whether Klebig intended

to use the oil filter that was taped to the barrel of a long

gun as a silencer rather than as a flash suppressor. Several

physical objects relevant to the prosecutor’s argument

had been admitted into evidence, including the long gun

with the oil filter taped to the barrel, the sawed-off rifle

and the second oil filter found on the floor of Klebig’s

bedroom. The first inferential leap the prosecutor made

was that the second oil filter made the marks on the

barrel of the sawed-off rifle. She next asserted that the

marks were a match, that the oil filter fit, and that this

was evidence Klebig had used the second oil filter on the
No. 08-2589 41

The government sought to assure us at oral argument that 12

the prosecutor alerted the trial court to this argument before

making it before the jury, and thus did not engage in prosecutorial misconduct in the usual sense of that term. Although

it was admirable that the prosecutor sought to get the court’s

approval before attempting this unusual closing argument

demonstration, from the defendant’s perspective the effect

was the same whether or not the prosecutor had a wrongful

motive in making the argument. Because allegations of prosecutorial misconduct are based on notions of due process, the

inquiry focuses on the fairness of the trial and not the culpability of the prosecutor. See United States v. Velez, 46 F.3d 688,

691 (7th Cir. 1995).

sawed-off rifle. According to the prosecutor, Klebig was

therefore lying when he said he had tried out the second

oil filter on the long gun to which the charged oil filter

was attached. She then drew the final connection, contending that Klebig had already used the second oil filter

as a silencer on the sawed-off rifle, making it more likely

that he was using the charged oil filter as a silencer on

the long gun.

We conclude easily that it was error to allow the demonstrations and accompanying commentary. Wescott, 576

12

F.3d at 355; Serfling, 504 F.3d at 677. The government’s

demonstration asserted new facts that seemed to conflict

with the testimony of the government’s own expert. A

number of leaps were required to travel from the assertions that the second oil filter fit the sawed-off rifle to the

conclusion that the government sought to prove, that

Klebig intended to use the charged oil filter as a silencer
42 No. 08-2589

on the long gun. One of those leaps involved propensity

evidence that may be admitted, if at all, only with proper

limiting instructions. Klebig may well have raised a

successful objection had the government sought to

prove this point at trial. In addition, the government

muddied the waters further by stating that the ATF agent

had testified the marks were caused by “some vice grip

or something like that” when the agent had in fact said

the marks were likely caused by a pipe cutter. Tr. at 244.

Our review of the record finds no reference to a vice

grip in the trial.

The government argues that the prosecutor was

simply characterizing the appearance of admitted items,

and that the jury could examine the evidence and conclude whether the government’s characterization was

correct. Citing Velez, the government maintains that

“when the jury has the evidence in its possession

and is equipped to ascertain whether the government’s

characterization is accurate, a statement characterizing

that evidence is not improper.” Velez, 46 F.3d at 692. In

Velez, a drug trafficking case, a scale was admitted into

evidence. During closing arguments, the prosecutor stated

to the jury that the scale had a “white powder residue

on it.” 46 F.3d at 691. The court found this was not improper because the jury could look at the scale and

decide if the statement was correct based on its own

observation. But the prosecutor in Klebig’s case went

far beyond describing the markings on the barrel of the

sawed-off rifle. She stated that the markings fit, that

they were a match, and that the blue ink was worn

away to fit the threads of the second oil filter. The fit, the
No. 08-2589 43

match, the cause of the discoloration on the barrel

were not facts that the jury could simply confirm by

looking at the evidence. The government’s own expert

had an entirely different explanation for how the marks

were caused and what they “fit” or “matched.” The

marks were likely made by a pipe cutter, according to the

ATF agent. The marks may or may not have been

caused by or been consistent with the second oil filter. We

cannot say because this evidence was allowed for the

first time in closing arguments when there was no opportunity to test it. This very subject matter of the cause of

the marks had already been the topic of expert testimony

and was not a readily observable “fact” like the existence

of white powder residue on a scale.

We next consider whether Klebig was prejudiced by

this error, and we conclude that he was. To assess the

prejudice of the improper demonstration, we must consider it in light of the whole trial to determine if it

deprived Klebig of a fair trial. United States v. Cheska, 202

F.3d 947, 950 (7th Cir. 2000). In assessing the effect of

improper remarks on the fairness of the trial, a court

should consider the nature and seriousness of the

remarks; whether the remarks were invited by the

conduct of defense counsel; whether the district court

sufficiently instructed the jury to disregard the remarks;

whether the defense could counter the improper remarks

through rebuttal; and finally, whether the weight of

the evidence was against the defendant. United States

v. McMath, 559 F.3d 657, 667 (7th Cir.), cert. denied, 130

S. Ct. 373 (2009); Serfling, 504 F.3d at 677; Cheska, 202

F.3d at 950.
44 No. 08-2589

This was not a single, off-handed remark, but rather

a demonstration and commentary that occurred twice in

the government’s closing arguments. The implication of

the demonstration was that Klebig lied about testing

the long gun with the oil filter to see if it would suppress

the gun’s flash because Klebig had also used an oil filter

on the sawed-off rifle, in that case as a silencer. When

it sent out a note to the court during deliberations, the

jury specifically asked to see the second oil filter and the

sawed-off rifle, among other things, apparently taking

the prosecutor up on her suggestion that the jurors

could themselves repeat the demonstration. There were

no charges pending relating to the second oil filter, and we

are hard-pressed to explain why the jury wanted to see

it except to repeat the demonstration. The demonstration

was not invited by anything that defense counsel said

during the trial or during closing statements. Although the

jury was instructed that the arguments of counsel were

not evidence, it is difficult to know how the jury would

have applied this admonition to the prosecutor’s demonstration and accompanying commentary.

Of course, Klebig had no opportunity to cross-examine

ATF Agent Griffith on the government’s claims that the

marks on the barrel of the sawed-off rifle were “a match”

with the uncharged oil filter, that the marks were

caused not by a pipe cutter but by the oil filter, and that

the oil filter had worn away the blue ink on the barrel to

fit the threads of the filter. Klebig had no opportunity

to ask the government’s expert if the government’s

claim was in fact consistent with his testimony that the

marks were caused by a pipe cutter, as the government
No. 08-2589 45

asserted. Without knowing during the trial that the

government was going to argue that Klebig had already

used the second oil filter on the sawed-off rifle, Klebig

had no opportunity to explain or deny this assertion

when he took the stand in his own defense. Nor was he

able to object to this assertion as improper evidence

under Rule 404(b). If the government’s remarks would

have been subject to a colorable objection if introduced

as evidence during the trial, “it is important to enforce

carefully the limitation that the inference be reasonable

not only to avoid abridging the defendant’s right to crossexamine possibly untrue testimony but also to prevent

a party from presenting to the jury in closing argument

a fact that might have been ruled inadmissible at trial

(or at least subject to a limiting instruction) simply by

asserting in closing argument that the jury could infer it

from the evidence that was presented and admitted.”

Vargas, 583 F.2d at 385.

A demonstration such as the one conducted by the

prosecutor twice in closing arguments should have been

conducted, if at all, with a witness on the stand who

could assert from first-hand knowledge or by expert

opinion that the government’s theory was plausible. And

Klebig should have been given an opportunity to test

that theory through cross-examination, and to present

his own evidence on the subject. Finally, if the government intended to argue that Klebig had engaged in the

same conduct with a different filter and a different gun

than the filter and long gun charged in the indictment,

Klebig should have had the opportunity to challenge

this as propensity evidence, and request a limiting in-
46 No. 08-2589

struction. Vargas, 583 F.2d at 386 (the need for caution

is particularly prevalent when the government’s statement involves evidence which, although arguably admissible, is subject to objections under Rules 403 and 404,

which is recognized to be perhaps the most prejudicial

kind of evidence). The prejudice to Klebig has been established.

III.

There were thus three errors in the trial. First, the

court should not have allowed the government to place

into evidence the threatening sign and security system,

which together with other irrelevant, prejudicial evidence

had the effect of inviting the jury to convict Klebig based

on their fear or dislike of him. Second, the court should

have more carefully managed the introduction of evidence relating to Klebig’s extensive collection of legally

owned guns, so that the presentation would have

focused on the relevant issue of Klebig’s knowledge of

and familiarity with firearms instead of on the sheer

volume of fire power that Klebig possessed. Finally, the

court should not have allowed the two demonstrations

to take place during closing arguments, but rather

should have required the government to enter this evidence, if at all, through a witness who could be crossexamined. The effect of all of these errors was to cause

the jury to see Klebig as an odd man and perhaps a dangerous one, and to decide the case on that basis rather

than on the issue of Klebig’s knowledge and intent

related to the sawed-off rifle and the oil filter taped to
No. 08-2589 47

the barrel of the long gun. The errors, taken together, were

not harmless. See United States v. Blanchard, 542 F.3d 1133,

1151 (7th Cir. 2008) (the test for harmless error is whether,

in the mind of the average juror, the prosecution’s case

would have been significantly less persuasive had the

improper evidence been excluded); United States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007) (same). See also

United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000) (in

determining whether a conviction should be upheld

despite the presence of error, a court is required to

assess the harm done by the errors considered in the

aggregate). Without the improperly admitted evidence,

the prosecution’s case here would have been considerably weaker. The evidence on Klebig’s knowledge of

the nature of the sawed-off rifle and his intent to use the

filter as a silencer was not so strong that we can be confident that the jury would have convicted Klebig in the

absence of these errors. We therefore reverse Klebig’s

conviction and remand for a new trial, conducted consistently with this opinion.

REVERSED AND REMANDED.

4-8-10