In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3280

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. 

MATTHEW POOLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 CR 560--David H. Coar, Judge.

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

 Before BAUER, RIPPLE and MANION, Circuit Judges.

 RIPPLE, Circuit Judge. Matthew Poole was

convicted in the district court of five counts of

knowingly making false statements in connection

with the purchase of firearms. See 18 U.S.C. sec.

924(a)(1)(A). The Bureau of Alcohol, Tobacco and

Firearms ("ATF") requires that all gun purchasers

fill out ATF Form 4473. Mr. Poole was charged

with giving false answers to the Form 4473

questions that asked whether he was the "actual

buyer" of the firearms and whether he had ever

been convicted of a crime that would have

prohibited him from possessing a firearm. Mr.

Poole now submits that the district court abused

its discretion on certain evidentiary rulings and

abused its discretion by its denial of a motion

for mistrial based upon the prosecutor’s improper

closing argument. For the reasons set forth in

this opinion, we affirm the judgment of the

district court. 

I

BACKGROUND

A. Facts

 In November 1996, in an Illinois state court,

Mr. Poole, pursuant to a plea agreement, pleaded

guilty to felony possession of cannabis. The

state court, in accepting his plea, advised him
that he could receive from 1 to 3 years

imprisonment. Mr. Poole was sentenced to 12

months of felony probation. Under 18 U.S.C. sec.

922, it is illegal for convicted felons to

possess firearms. 

 In April, May and June 1998, at Suburban

Sporting Goods in Melrose Park, Illinois, Mr.

Poole purchased a total of 14 guns, in five

transactions, using his Firearm Owner’s

Identification ("FOID") card./1 On every visit

to the gun shop, Mr. Poole was accompanied by

another man./2 That other man selected the guns

and paid for them. For each transaction, Mr.

Poole filled out ATF Form 4473, completing five

forms between April 1998 and June 1998. Question

8(a) on the form asks, "Are you the actual buyer

of the firearm listed below?" Mr. Poole answered

"yes" to this question on each form. Question

8(c) asks, "Have you been convicted in any court

of a crime for which the judge could have

imprisoned you for more than one year, even if

the judge actually gave you a shorter sentence?"

Mr. Poole answered "no" to this question on each

form. 

 In August 1998, after receiving notification

from the Illinois State Police that his FOID card

had been revoked, Mr. Poole went back to the same

gun shop and once again filled out ATF Form 4473

in order to effect the purchase of two more guns.

Because Illinois has a 72-hour waiting period,/3

Mr. Poole and the other man planned to return in

three days to complete the purchase of those

guns. Before his planned return, however, Mr.

Poole was arrested, and the proposed sale was

terminated. He was charged with five counts of

making false statements on a form used to

purchase firearms, in violation of 18 U.S.C. sec.

924 (a)(1)(A),/4 and five counts of being a

felon in possession of a firearm, in violation of

18 U.S.C. sec. 922(g)(1). He was not charged with

the August 1998 attempted transaction, and, prior

to trial, the Government dismissed the five

counts of being a felon in possession of a

firearm. In essence, the Government prosecuted

Mr. Poole for being a "straw purchaser" by buying

guns for someone who was unable to obtain them

legally. 

 Mr. Poole pleaded not guilty based upon his

assertions that he thought he was being truthful

when he filled out the 4473 forms. He contended

that he considered himself to be the actual buyer

because he was the one with the FOID card. He

further argued that he had not lied by stating

that he did not have a felony conviction; he did

not realize, he explained, that the November 1996

plea resulted in a felony conviction and that he

could have been sentenced to at least one year in
prison for that conviction. 

 Prior to trial, the Government had filed a

notice of intent to offer evidence, under Federal

Rule of Evidence 404(b). This evidence pertained

to the August 1998 attempted transaction. The

district court, after a hearing, allowed this

evidence to be presented at trial with a limiting

instruction. 

 During the trial, Mr. Poole testified that he

did not know anything about guns. In an effort to

impeach Mr. Poole and therefore cast doubt on his

credibility, the Government questioned Mr. Poole

about his 1996 arrest because the police report

stated that 5 guns were found during that arrest.

Specifically, the prosecutor asked Mr. Poole

whether guns were found in his apartment at the

time of his arrest on his state cannabis charge.

Mr. Poole answered, "No, sir, not in my

apartment. Down the hallway but not in my

apartment."/5 Tr. III at 237. 

 During her closing argument, the prosecutor

commented on Mr. Poole’s state felony conviction.

Mr. Poole, contending that the prosecutor’s

comments were not supported by the record, moved

for a mistrial. The district court denied the

motion.

 Mr. Poole now appeals, stating that he should be

granted a new trial for the following reasons: 1)

the district court improperly admitted evidence

of Mr. Poole’s August 1998 attempted transaction

under Rule 404(b); 2) the district court

improperly allowed the defendant to be questioned

about the presence of guns at his 1996 arrest;

and 3) the district court erred by not granting a

mistrial based upon the allegedly improper

closing argument of the prosecutor. We shall

address each of these contentions.

II

DISCUSSION

A. August 1998 Attempted Transaction

1.

 Mr. Poole argues that the introduction of the

August 1998 attempted transaction was improper

under Federal Rule of Evidence 404(b) because the

Government used that evidence for the purpose of

showing his propensity to commit the crimes

charged./6 Mr. Poole further states that such

evidence should not have been admitted because he

never was charged with any violations stemming

from that incident. Additionally, Mr. Poole

contends that this evidence was especially
prejudicial because the attempted transaction

occurred after Mr. Poole’s FOID card had been

revoked.

 The Government counters that evidence of this

attempted transaction, which had occurred

subsequent to the charged offense, properly was

admitted because it showed Mr. Poole’s intent and

plan. The Government also points out that, in

order to minimize the possibility of unfair

prejudice, the district court gave a limiting

instruction to the jury concerning this evidence.

 The trial court’s admission of evidence of other

acts under Rule 404(b) is reviewed by this court

under the abuse of discretion standard. See

United States v. Asher, 178 F.3d 486, 491-92 (7th

Cir.), cert. denied, 120 S. Ct. 359 (1999);

United States v. Robinson, 161 F.3d 463, 466 (7th

Cir. 1998), cert denied, 119 S. Ct. 1482 (1999);

United States v. Lloyd, 71 F.3d 1256, 1264 (7th

Cir. 1995), cert. denied, 517 U.S. 1250 (1996).

2.

 When evaluating the admissibility of other acts

under Rule 404(b), this court uses a four-prong

test that incorporates the relevancy aspect of

Rule 403: (1) the evidence of the other act must

address a matter in issue other than the

defendant’s propensity to commit the crime

charged; (2) the other act must be similar enough

and close enough in time to be relevant to the

matter in issue; (3) the evidence of the other

act must be sufficient for the jury to find that

the defendant committed the other act; and (4)

the other act must have probative value that is

not substantially outweighed by the danger of

unfair prejudice. See Asher, 178 F.3d at 492;

United States v. Smith, 103 F.3d 600, 603 (7th

Cir. 1996); Lloyd, 71 F.3d at 1264.

a.

 The other act must address a matter at issue.

Mr. Poole based his defense upon his assertion

that he did not knowingly give false statements

on the ATF forms, thus making his own knowledge a

matter at issue. Therefore, it was proper to

allow the Government the opportunity to show that

Mr. Poole knew full well what he was doing. We

agree with the Government that evidence of the

subsequent act shows "intent and plan." It

supported the argument that, even though the

defendant claimed to be the actual purchaser in

the transactions at issue, his subsequent conduct

showed that his claim was not true. Furthermore,

this subsequent attempted transaction, without

the benefit of a FOID card, was relevant with
respect to Mr. Poole’s knowledge of his state

felony conviction because in July 1998, the

Illinois State Police had sent Mr. Poole notice

of his FOID card revocation. 

b.

 The other act must be similar and close in time.

The August 1998 incident occurred within a few

months of the conduct that prompted Mr. Poole’s

indictment. Indeed, Mr. Poole was arrested on the

very day that he was scheduled to pick up the

guns from the August transaction. Moreover, other

than the absence of his FOID card, which had been

revoked, the transaction was virtually identical

to Mr. Poole’s other gun shop transactions.

c.

 The evidence must be sufficient to show that the

defendant committed the other act. Mr. Poole does

not deny that he committed the August 1998

attempt to purchase guns. Indeed, the jury was

not presented with any evidence that disputed

that the August 1998 transaction occurred.

d.

 The danger of unfair prejudice must not

substantially outweigh the probative value.

"’Relevant evidence is inherently prejudicial.’"

Lloyd, 71 F.3d at 1265 (quoting Cook v. Hoppin,

783 F.2d 684, 689 (7th Cir. 1986)). When the

other three prongs of the test are met, evidence

should be excluded only if any resulting unfair

prejudice substantially outweighs the probative

value. See Asher, 178 F.3d at 494-95; Smith, 103

F.3d at 603-04. Care may be taken to decrease the

possibility of unfair prejudice by issuing

special jury instructions on the proper use of

this evidence. See Smith, 103 F.3d at 604. It was

undoubtably harmful to Mr. Poole’s case when

evidence of his subsequent attempted transaction

was offered at trial. But harm alone is not

enough to warrant exclusion under the heading of

"unfair" prejudice. See Lloyd, 71 F.3d at 1265.

In this case, the evidence of the subsequent act

was directly relevant to Mr. Poole’s intent, plan

and knowledge of his actions. Furthermore, the

district court issued limiting instructions to

the jury on the proper use of this evidence.

Consequently, we are not persuaded by Mr. Poole’s

argument stating that unfair prejudice outweighed

the probative value. Therefore, we do not believe

that the district court abused its discretion by

admitting the evidence. 

B. Guns at the 1996 Cannabis Arrest

 Mr. Poole contends that questions concerning the
presence of guns at his 1996 arrest for

possession of cannabis were improper because he

was not charged with any firearms violations as a

result of that incident. Moreover, he submits,

the prosecutor’s questions were very prejudicial

because they portrayed him as a "man of

violence." Appellant’s Br. at 21. He submits that

the district court should have used the Rule

404(b) test to exclude the evidence. The

Government counters that the circumstances

surrounding the 1996 cannabis arrest were

introduced to impeach Mr. Poole’s testimony. We

review the district court’s decision to allow

this line of questioning for abuse of discretion.

See United States v. Given, 164 F.3d 389, 393

(7th Cir.), cert. denied, 120 S. Ct. 132 (1999).

 The record discloses that Mr. Poole testified,

on direct examination, that, when "James"

approached him and asked if he knew anyone who

had a gun, Mr. Poole said that he knew nothing

about guns. He further testified that, while

James and James’ friend were looking at guns in

the gun shop, he did not know what to look for,

so he stood aside and did not participate in the

conversation. The prosecutor, on crossexamination, first questioned Mr. Poole about his

participation in the purchase of the firearms. He

again denied that he knew anything about the guns

that were being purchased. The prosecutor then

pointedly asked him whether he knew "anything

about guns." Tr. III at 234. He answered that he

did not and that he did not even know how to

shoot one. See id. The defense counsel then asked

for a sidebar and objected to the line of

questioning on the ground that the Government was

setting the stage to ask Mr. Poole about the

presence of guns at his 1996 cannabis arrest. The

district court determined that, by asserting that

he was not knowledgeable about guns, the

Government was allowed to impeach him on that

statement. The following cross-examination then

took place:

Q: Now, Mr. Poole, you just told the members of

the jury that you didn’t know anything about

guns, is that correct?

A: Yes, sir.

Q: In fact, you didn’t even know how to shoot a

gun, right?

A: Correct.

Q: You didn’t handle any of the guns that were

purchased by James, is that correct?

A: No, sir, I did not.

Q: And you didn’t handle any of the guns that

were purchased by his partner?

A: No, sir.

Q: But you had handled guns before, hadn’t you?

A: No, sir.

Q: Wasn’t it true that in that 1996 conviction,
Mr. Poole, that five handguns were found in your

apartment?

A: No, sir, not in my apartment. Down the hallway

but not in my apartment.

Tr. III at 237. Notably, Mr. Poole was given an

opportunity to dispute the Government’s

suggestion that the guns were in his apartment. 

 We cannot say that the district court abused its

discretion in admitting this testimony. Because

the Government’s case rested on the showing that

Mr. Poole was purchasing the guns for someone

else as a "straw purchaser," any evidence of Mr.

Poole’s personal possession of guns would not

have benefitted, in any direct way, the

Government’s case. However, as the district court

noted, this line of questioning would address Mr.

Poole’s credibility and therefore was admissible

for that limited purpose. When used for

impeachment purposes, the statements do not

require the Rule 404(b) analysis that Mr. Poole

argues. See United States v. Cerro, 775 F.2d 908,

914 (7th Cir. 1985). 

C. The Government’s Closing Argument

 Mr. Poole also contends that the district court

should have granted a mistrial because the

prosecutor made improper comments during her

closing argument. Mr. Poole argues that the

prosecutor improperly relied upon her own

personal knowledge and on other information that

was not in the record. The Government replies

that, because Mr. Poole put his lack of knowledge

of his previous felony conviction at issue,

closing argument appropriately included comments

concerning the 1996 court proceeding and any

reasonable inferences drawn from the evidence of

Mr. Poole’s court appearance. We review the

district court’s denial of a mistrial for an

abuse of discretion. See United States v. Butler,

71 F.3d 243, 254 (7th Cir. 1995). 

 We follow a two-step analysis when assessing

possible prosecutorial misconduct during closing

argument. First, we look at the disputed remarks

in isolation to see if they were improper;

second, if the statements were improper, then we

proceed to determine whether the statements, when

assessed in the context of the record as a whole,

denied the defendant a fair trial. See United

States v. Morgan, 113 F.3d 85, 89 (7th Cir.

1997); Butler, 71 F.3d at 254; United States v.

Badger, 983 F.2d 1443, 1450 (7th Cir.), cert.

denied, 508 U.S. 928 (1993). When we reach this

second step, in order to determine whether the

defendant was denied a fair trial, we examine:

1) the nature and seriousness of the
prosecutorial misconduct, 2) whether the

prosecutor’s statements were invited by conduct

of defense counsel, 3) whether the trial court

instructions to the jury were adequate, 4)

whether the defense was able to counter the

improper arguments through rebuttal, and 5) the

weight of the evidence against the defendant.

Badger, 983 F.2d at 1450.

1.

 Mr. Poole alleges that the prosecutor made

improper closing remarks when she characterized

the circumstances surrounding Mr. Poole’s 1996

plea agreement in state court on the cannabis

charge. The prosecutor described Mr. Poole’s

access to legal counsel and the courtroom

setting. She told the jury that the 1996 trial

transcript supported the contention that Mr.

Poole had received legal counsel from two

attorneys. She continued by giving her own

assessment of the duties and roles those

attorneys played:

[H]is lawyers on his behalf would have been

testing the strength of the state’s evidence. And

what that means and why it’s relevant here is

that Matthew Poole would have been present and he

would have been fully aware of what the state’s

charges were against him.

Tr. IV at 277. These comments were not

unreasonable and improper.

 In addition to discussing Mr. Poole’s attorneys,

the prosecutor stated that, "Matthew Poole stood

before a judge in a courtroom probably like this

one." Tr. IV at 278. The evidence presented at

trial revealed that Mr. Poole did appear with

counsel before a judge in a courtroom. Although

Mr. Poole’s 1996 trial was a state proceeding in

night court, the particular physical appearance

of the courtroom was not essential to the solemn

nature of that proceeding. Moreover, Question

8(c) on ATF Form 4473 asks if the purchaser had

been convicted in any court. Consequently, in

assessing this remark in isolation, there is

nothing to suggest that the prosecutor’s remarks

were improper.

2.

 Even if the statement had been improper in

isolation, Mr. Poole’s argument would fail the

second test in our analysis of possible

prosecutorial misconduct during closing argument.

Mr. Poole testified at trial that he did not know

he had a felony conviction and that he did not

know that he could have been sentenced to over
one year of imprisonment, thereby inviting the

prosecutor’s comments. Also, Mr. Poole had ample

opportunity to refute the prosecutor’s argument

during his own closing. 

 Moreover, sufficient evidence existed for a

reasonable jury to find Mr. Poole guilty on all

counts. When challenging the sufficiency of

evidence to support a conviction, "’[a]s an

appellate court, we will not second-guess the

jury on [the credibility determination].’" United

States v. Curry, 79 F.3d 1489, 1497 (7th Cir.

1996) (quoting United States v. Lakich, 23 F.3d

1203, 1210-11 (7th Cir. 1994)). In assessing the

weight of the evidence, we must look at the proof

supporting the Government’s allegation that Mr.

Poole knowingly gave false statements concerning

his felony conviction and knowingly gave false

statements when he said he was the actual buyer.

In addition to arguing his lack of knowledge of

his felony conviction, Mr. Poole argued that

because his FOID card was being used to

effectuate the purchase, he believed he was the

actual buyer. "[The defendant] was free to make

these arguments to the jury. The jury, in turn,

was free to reject them." United States v.

Obiuwevbi, 962 F.2d 1236, 1239 (7th Cir. 1992).

Mr. Poole testified at trial that he bought guns

for a man named "James," that Mr. Poole

personally did not pay for the guns, and that he

never had possession of the guns. That testimony

alone could be enough evidence for a reasonable

jury to find that Mr. Poole knowingly gave false

statements when he stated that he was the actual

buyer. Additionally, the jury was presented

evidence that Mr. Poole was a convicted felon,

that he had appeared in state court with counsel

before a judge, and that he had signed a plea

agreement with respect to that conviction. Most

importantly, a special agent of the ATF testified

that Mr. Poole had related to her his

understanding that, as a felon, he could not

possess firearms and then described each

purchase. 

 The motion for mistrial was properly denied by

the district court.

Conclusion

 We have reviewed each of Mr. Poole’s contentions

and conclude that the district court did not

abuse its discretion in adjudicating any of these

issues. Accordingly, the judgment of the district

court is affirmed. 

AFFIRMED

/1 Illinois residents may not purchase or possess a
firearm without a valid FOID card. Convicted

felons are not eligible to obtain a FOID card,

and a felony conviction results in the revocation

of a valid FOID card. Mr. Poole’s FOID card had

not been revoked at the time of his felony

conviction and was not revoked until after he had

used it to purchase 14 firearms.

/2 On April 30, 1998, his first visit to the gun

store, Mr. Poole was accompanied by a man he

refers to as "James." On all subsequent visits,

Mr. Poole was accompanied by a man he refers to

as "James’ friend."

/3 The 72-hour waiting period gives the licensed

dealers time to obtain the necessary approval of

the Illinois State Police for every firearm sale.

During the 72-hour period, the Illinois State

Police check the purchaser’s criminal and mental

history before giving that approval.

Nevertheless, Mr. Poole had been able to purchase

14 firearms from April 1998 through June 1998. 

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

whoever--knowingly makes any false statement or

representation with respect to the information

required by this chapter to be kept in the

records of a person licensed under this chapter .

. . shall be fined under this title, imprisoned

not more than five years, or both.

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

/5 Mr. Poole was charged with felony possession of

cannabis, but he was never charged with gun

violations stemming from his 1996 arrest.

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

follows:

Other crimes, wrongs, or acts. Evidence of other

crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show

action in conformity therewith. It may, however,

be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake

or accident, provided that upon request by the

accused, the prosecution in a criminal case shall

provide reasonable notice in advance of trial, or

during trial if the court excuses pretrial notice

on good cause shown, of the general nature of any

such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b).