In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1320 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

VAHAN KELERCHIAN, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division. 

No. 2:13-CR-66 — Joseph S. Van Bokkelen, Judge. 

____________________ 

ARGUED APRIL 2, 2019 — DECIDED AUGUST 22, 2019 

____________________ 

Before HAMILTON, BARRETT, and SCUDDER, Circuit Judges. 

HAMILTON, Circuit Judge. Federal law imposes tight restrictions on private possession of machineguns and laser 

gunsights but allows law enforcement agencies to purchase 

and use both machineguns and laser sights. This appeal concerns criminal conspiracies among a firearms dealer and law 

enforcement officers to fool manufacturers into thinking they 

were selling to local police forces when the machineguns and 

laser sights were instead going into private hands. 
2 No. 18-1320 

Defendant-appellant Vahan Kelerchian was a licensed 

firearms dealer. His co-conspirators were Joseph Kumstar, the 

Deputy Chief of the Lake County Sheriff’s Department in Indiana, and Ronald Slusser, a patrolman who was the armorer 

for the department’s SWAT team. The trio defrauded firearms 

manufacturer Heckler & Koch and the laser sight producer 

Insight Technologies into selling them machineguns and laser 

sights restricted by law for law enforcement and military use. 

After many fraudulent transactions, the three were indicted 

on several charges. Kumstar and Slusser pleaded guilty. 

Kelerchian went to trial and was convicted on four counts of 

conspiracy and four counts of making false writings. On appeal, Kelerchian raises numerous issues, but we affirm his 

convictions on all counts. In Parts I and II, we provide the factual and procedural background for Kelerchian’s arguments. 

In Part III, we analyze his numerous challenges to his convictions. 

I. Factual Background 

A. Machineguns and Laser Sights 

Since enactment of the National Firearms Act of 1934, codified in the Internal Revenue Code as 26 U.S.C. § 5801 et seq. 

(“the 1934 Act”), federal law has forbidden the importation of 

machineguns, but with several exceptions. Two are relevant 

here. First, machineguns may be imported for use by state or 

federal departments or agencies, and second, machineguns 

may be imported “solely for use as a sample by a registered 

importer or registered dealer.” 26 U.S.C. § 5844; see also 27 

C.F.R. § 479.112. The conspirators here submitted fake documents to Heckler & Koch to take advantage of these two exceptions. 
No. 18-1320 3 

The Gun Control Act of 1968, as amended and codified as 

part of the criminal code in 18 U.S.C. § 921 et seq. (“the 1968 

Act”), imposed additional restrictions on a much broader category of firearms, as well as new recordkeeping laws. The 

1968 Act, as amended, prohibits the transfer or possession of 

machineguns made after 1986, except by a federal, state, or 

local agency. 18 U.S.C. § 922(o). Both the 1968 and 1934 Acts 

require importers and dealers of firearms to keep records related to their transactions. 18 U.S.C. § 923(g); 26 U.S.C. § 5843. 

Both Acts make it a crime to make false statements with respect to these records. 18 U.S.C. § 924(a)(1)(A); 26 U.S.C. 

§ 5861(l). The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) administers the recordkeeping requirements 

and the exceptions. 

Laser sights, on the other hand, are regulated by the Food 

and Drug Administration (“FDA”) as part of its regulation of 

radiation-emitting devices. See 21 U.S.C. § 360ii. The powerful lasers on gunsights can cause eye damage, so federal law 

ordinarily requires them to be equipped with visible or audible warnings before and during use, as well as protective covers and key controls. 21 C.F.R. § 1040.10(f). They also must 

have labels warning of the risk of eye damage. 21 C.F.R. 

§ 1040.10(g)(2)(iii). 

The FDA may, however, grant exemptions or variances 

from these requirements, such as for police departments that 

might need to be able to use silent laser sights. 21 U.S.C. 

§ 360oo(b); 21 C.F.R. § 1010.4(a). The FDA also requires accurate records for laser sales. Laser manufacturers must collect 

and preserve information that will enable the tracing of lasers 

sold to distributors or to dealers. 21 C.F.R. § 1002.30(b)(1); see 

also 21 U.S.C. § 360nn(f). Dealers and distributors must 
4 No. 18-1320 

“obtain such information as is necessary to identify and locate 

first purchasers” of lasers and forward this information “immediately to the appropriate manufacturer.” 21 C.F.R. 

§ 1002.40(a), (c). 

B. The Conspiracies 

Vahan Kelerchian was a licensed firearms dealer who ran 

a business in Pennsylvania called Armament Services International, Inc., known as ASI. He met Lake County Sheriff patrolman Ronald Slusser at a Kentucky machinegun show some 

time in the early 2000s. A few years later at the same show, 

Slusser introduced Kelerchian to his supervisor, Joseph Kumstar, the Deputy Chief of the Lake County Sheriff’s Department. According to Slusser, he and Kelerchian stayed in touch 

and did business together for the next several years. 

At some point, Slusser told Kelerchian about an illegal 

arms deal in 2008 that Kumstar had instructed him to help 

with. Kumstar had acquired machineguns by claiming that 

they were for the Sheriff’s Department, but then instructed 

Slusser to remove certain parts of these guns and to sell them 

over the internet for Kumstar’s personal gain. Slusser testified 

that Kelerchian expressed interest in doing a similar deal with 

Kumstar and Slusser. The three then plotted the conspiracies 

that led to their convictions. 

1. Machinegun Purchases

The first part of the conspirators’ plan was to purchase machineguns from international gun importer Heckler & Koch 

(“H&K”) under the pretense that the weapons were for the 

Lake County Sheriff’s Department. Kelerchian, Slusser, and 

Kumstar orchestrated three fraudulent machinegun purchases from H&K. 
No. 18-1320 5 

In the first transaction, in December 2008, Kelerchian, 

Kumstar, Slusser, and Slusser’s cousin, Ed Kabella, ordered 

50 machineguns for $83,026. Kumstar prepared paperwork 

saying falsely that the Sheriff’s Department was purchasing 

all 50 machineguns. Kelerchian sent this paperwork to H&K, 

including statements on Sheriff’s Department letterhead attesting that the weapons were for the exclusive use of Lake 

County law enforcement. H&K then filed ATF Form 6, asserting that it was importing 50 machineguns for the Lake County 

Sheriff’s Department. ATF approved the transaction, and 

H&K sent the 50 machineguns to the Sheriff’s Department. 

Slusser then took the machineguns apart, separating the 

guns’ lower receivers, which are the regulated portions of the 

weapons containing traceable serial numbers. The unregulated upper barrels of the guns were distributed among the 

conspirators according to how much money each had contributed to the purchase. The plan was to refurbish 15 of the regulated lower receivers into new guns using cheaper parts, and 

then to add these new weapons into the Sheriff’s Department’s armory. The 35 remaining lower receivers were to be 

destroyed. No machineguns ever made it to the Sheriff’s Department, though. The conspirators sold the unregulated machinegun parts for a substantial profit. Slusser sold his unregulated machinegun barrels to a dealer named Adam Webber, 

who runs a website selling hard-to-acquire H&K machinegun 

parts. 

Webber was involved in the next two machinegun purchases. He told Kumstar and Kelerchian that he was interested in buying additional machinegun parts. In February 

2009, using the same procedure as before, Kumstar and Kelerchian bought nine H&K machineguns, again telling H&K 
6 No. 18-1320 

falsely that the guns were for the Sheriff’s Department. Once 

the machineguns were delivered, Slusser again disassembled 

them and sent the unregulated parts to Webber. In exchange,

and relevant to the money-laundering conspiracy charge,

Webber sent Slusser a cashier’s check for $18,900. At Kumstar’s direction, Slusser deposited that check into his own account and then sent cashier’s checks to both Kumstar and 

Kelerchian. Nine months later, Kelerchian mailed H&K a 

check for the machineguns. 

In October 2009, Kelerchian and Kumstar bought twelve 

more machineguns from H&K, again telling H&K falsely that 

they were for the Sheriff’s Department. Slusser again disassembled the guns and sent the unregulated parts to Webber. 

Webber mailed Slusser a $31,200 check, which he cashed. 

Slusser wrote Kelerchian a check for $28,200, and Kelerchian 

wrote H&K a check for the guns’ $16,800 purchase price. 

2. Demonstration Letters

In the meantime, the conspirators also used the exception 

for importing machineguns as demonstration samples for a 

dealer. Kumstar testified that Kelerchian asked him for help 

in buying machineguns for his personal collection. Between 

October 2007 and March 2010, Kumstar sent five letters to the 

ATF stating falsely that the Lake County Sheriff’s Department 

was interested in demonstrations of the weapons Kelerchian 

wanted for himself. The letters said that Kelerchian had “offered to conduct such demonstration[s]” and “intend[ed] to 

demonstrate the operation, identification and safe handling of 

the guns” to provide “department personnel a better understanding of the capabilities, limitations and differences of 

these guns.” Kumstar testified that neither he nor the Sheriff’s 

Department was actually interested in demonstrations of the 
No. 18-1320 7 

requested machineguns and that he never had discussed a 

plan for conducting an actual demonstration with Kelerchian. 

Kumstar also testified that the weapons were not guns the Department would use. 

Through this arrangement, Kelerchian was able to buy 

nine machineguns. He became the registered owner of these 

weapons, and federal law allowed him to sell them at his own 

discretion. No demonstrations ever occurred. 

Kelerchian’s testimony disputed Kumstar’s account. He 

said that Kumstar had offered on his own to write the first 

dealer sales sample letter for Kelerchian and genuinely was 

interested in a demonstration. Kelerchian also testified that he 

offered to conduct demonstrations for Kumstar and the Department many times between October 2008 and April 2011. 

He said that he offered a variety of settings and dates but that 

Kumstar never took him up on his offers. The most Kumstar 

did, according to Kelerchian, was to come to Kelerchian’s 

place of business, take photographs with guns, and pick up a 

gun, saying “We did our demo.” 

3. Laser Sight Purchases 

Kelerchian, Kumstar, and Slusser also devised a plan to 

buy restricted laser sights from a company called Insight 

Technology. Slusser testified that he and Kelerchian wanted 

to buy laser sights for their personal collections. The devices 

Kelerchian and Slusser wanted did not comply with FDA 

safety rules requiring a visible or audible warning. However, 

the FDA had granted Insight Technology a variance allowing 

it to sell its laser sights (technically, Class IIIb devices) to federal, state, and local enforcement agencies on the theory that 

safety features like a visible or audible warning could 
8 No. 18-1320 

compromise stealth operations in which officers need to remain unheard and unseen. 

Slusser and Kelerchian used the variance to buy laser 

sights on the pretext that they were for the Sheriff’s Department. Kelerchian and Slusser told Kumstar which sights they 

wanted, and Kumstar then put together a purchase order with 

paperwork saying falsely that the Sheriff’s Department was 

buying the lasers. In December 2008, Kelerchian sent Insight 

Technology this purchase order for 25 sights for $27,103.52. 

Using a nearly identical method, in March 2010, the three 

bought an additional 22 lasers sights for $30,249.92. According to Slusser, he and Kelerchian placed two more orders for 

Insight Technology laser sights by using a friend of Slusser’s 

in the Lowell, Indiana Police Department in December 2009 

and August 2010. The Lowell orders were for more than 28 

Class IIIb laser products costing more than $32,000.

Kelerchian testified that he was unaware of the FDA’s regulation of lasers and the variance. He told the jury that an Insight Technology employee named Linda Harms told him 

that the lasers could be sold to individuals if they went 

through a law enforcement department first. Harms testified 

at trial that she never would have told a customer that laser 

sights were available for individual purchase. 

II. Procedural Background

A federal grand jury returned a nine-count indictment. 

Count I alleged that, in buying the machineguns, Kelerchian, 

Kumstar, and Slusser violated 18 U.S.C. § 371 by conspiring 

to make false statements in records required by the 1968 Act. 

See 18 U.S.C. § 924(a)(1)(A). Count II alleged that, in buying 

the laser sights, Kelerchian and the others violated 18 U.S.C. 
No. 18-1320 9 

§ 371 by conspiring to defraud the FDA by interfering with its 

lawful government functions of limiting the sale of various 

restricted laser sights to military and law enforcement agencies and correctly identifying the buyers of restricted laser 

sights. 

Counts III through VII focused on the demonstration letters. Count III charged Kelerchian under 18 U.S.C. § 371 with 

conspiring with Kumstar and others to violate 18 U.S.C. 

§ 1001 by making false statements to the ATF in the phony 

demonstration letters. Counts IV through VII charged Kelerchian with actual violations of § 1001 in four separate letters. 

Count VIII alleged that Kelerchian committed bribery by 

offering Kumstar a shotgun in exchange for his help with several of the fraudulent transactions. Count IX alleged that 

Kelerchian, Kumstar, and Slusser conspired to launder 

money in violation of both 18 U.S.C. § 1956 and § 1957. The 

§ 1956 allegation concerned the second machinegun purchase 

and the § 1957 allegation concerned the third. The premise of 

Count IX is that the conspirators engaged in wire fraud in obtaining the machineguns and then laundered the proceeds of 

that fraud. 

Slusser, Kumstar, and Kabella pleaded guilty and agreed 

to testify for the prosecution. Kelerchian took his case to trial. 

After the government rested and again after the close of all 

the evidence, Kelerchian moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on all counts. At 

both stages, the district court denied the motion on Counts I 

through VII and took the motion under advisement on 

Counts VIII and IX. 
10 No. 18-1320 

The jury found Kelerchian guilty on all counts except the 

bribery charge in Count VIII. Through a special verdict form, 

regarding Count II, the jury specifically found Kelerchian 

guilty of conspiring to interfere with both of the two regulatory functions of the FDA identified in the indictment. 

Through another special verdict form on Count IX, the jury 

found Kelerchian guilty of conspiring to launder money in violation of both 18 U.S.C. § 1956 and § 1957. Kelerchian was 

sentenced to 100 months in prison, plus a fine and term of supervised release. 

III. Legal Analysis 

Kelerchian challenges all of his convictions on a variety of 

grounds. First, he argues that Counts I and II failed to allege 

federal crimes. Second, he argues the government failed to 

prove the demonstration-letter charges in Counts III through 

VII and the money-laundering conspiracy in Count IX. Third, 

he contends the district court erred in its jury instructions. Finally, he claims the prosecution engaged in misconduct in its 

closing argument. We find no errors. 

A. Legal Sufficiency of Counts I and II 

1. Count I—Conspiracy to Violate Gun Control Act Recording Requirements 

Kelerchian argues that Counts I and II of the indictment 

fail to allege federal offenses. We start with Count I, which 

charged Kelerchian under 18 U.S.C. § 371 with conspiring to 

violate 18 U.S.C. § 924(a)(1)(A), which makes it a crime to 

knowingly make “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,” including federally licensed firearms importers, manufacturers, and 
No. 18-1320 11 

dealers, including H&K. See Abramski v. United States, 573 U.S. 

169, 174–75 (2014). “This chapter” is chapter 44 of Title 18, and 

it provides in relevant part that licensees may not sell “any 

firearm ... to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person ... or 

the identity ... of such ... corporation or other business entity.” 18 U.S.C. § 922(b)(5). “Person” in this case means the 

real buyer or intended recipient of the firearm, not a nominal 

or straw purchaser. Abramski, 573 U.S. at 179–82. Regulations 

implementing the 1968 Act also require licensees like H&K to 

“maintain permanent records of the importation ... of firearms, including ATF Forms 6 and 6A.” 27 C.F.R. § 478.129(d). 

Count I thus alleged a conspiracy to violate § 924(a)(1) by 

leading H&K to create false records for the machinegun purchases—falsely identifying the Lake County Sheriff’s Department as the buyer. On this logic, Count I alleged a federal offense. 

To avoid this conclusion, Kelerchian argues that 18 U.S.C. 

§ 924(a)(1)(A) and the 1968 Act’s regulations in 27 C.F.R. § 478 

do not apply generally to machineguns. He argues that the 

1934 Act regulates purchase, possession, importation, registration, and recordkeeping for machineguns, and that the 

only provision of the 1968 Act that applies to machineguns is 

18 U.S.C. § 922(o), which criminalizes the transfer and possession of machineguns, but which was not charged in Count I. 

Kelerchian bases his statutory argument on the two Acts’ 

different definitions of the term “firearm.” The 1934 Act provides: “The term ‘firearm’ means” a number of categories of 

especially dangerous weapons, including short-barreled shotguns and rifles, and specifically including “a machinegun.” 26 
12 No. 18-1320 

U.S.C. § 5845(a). By contrast, the 1968 Act defines a “firearm” 

in relevant part much more broadly as “any weapon ... which 

will or is designed to or may readily be converted to expel a 

projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3). 

Comparing these definitions, Kelerchian argues that because 

the 1968 Act’s definition does not expressly include machineguns, unlike the 1934 Act’s definition, Congress meant 

to distinguish between machineguns and firearms in the 1968 

Act, leaving machinegun regulation largely to the 1934 Act. 

Based on both the text and the structure of the 1968 Act, 

we reject this argument. First, a machinegun clearly fits into 

the 1968 Act’s broad definition of a “firearm” as a weapon that 

“will or is designed to or may readily be converted to expel a 

projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3). 

Machineguns are a subset of “firearms” as defined in the 1968 

Act.1

Second, other provisions of the 1968 Act show that machineguns are properly treated as a subset of firearms under 

that Act. For example, § 924(c)(1) punishes the possession of a 

firearm during the commission of a crime of violence or a 

drug trafficking offense, but § 924(c)(1)(B)(ii) enhances the 

 1 In the 1934 Act, the term “‘machinegun’ means any weapon which 

shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function 

of the trigger. The term shall also include the frame or receiver of any such 

weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon 

into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the 

control of a person.” 26 U.S.C. § 5845(b). The 1968 Act borrows the same 

definition for the term where it is used in the 1968 Act. 18 U.S.C. 

§ 921(a)(23). 
No. 18-1320 13 

punishment “if the firearm possessed ... is a machinegun.” 

Similarly, § 924(c)(1)(C)(ii) imposes a more severe penalty for 

a second § 924(c) conviction “if the firearm involved is a machinegun.” Section 925(d) provides the Attorney General with 

authority over importation of firearms into the United States 

and possession of “unserviceable firearm[s], other than ... machinegun[s].” 18 U.S.C. § 925(d) (emphasis added). The 1968 

Act also grants qualified law enforcement officers with the 

proper identification the ability to carry concealed firearms, 

but specifically excludes machineguns from the definition of 

firearm for purposes of just that section. 18 U.S.C. § 926B(e). 

The clear implication is that all other provisions of the Act 

without such a limit apply to machineguns as a subset of firearms. 

Accordingly, a machinegun counts as a firearm for purposes of 18 U.S.C. § 924, so Count I properly charged Kelerchian with conspiracy to violate the 1968 Act by submitting 

documents falsely telling H&K that the buyer of all the machineguns would be the Lake County Sheriff’s Department. 

2. Count II—Conspiracy to Defraud the FDA 

Section 371 of Title 18 of the United States Code makes it 

a crime not only to conspire to commit “any offense against 

the United States,” but also to conspire “to defraud the United 

States, or any agency thereof in any manner or for any purpose.” The Supreme Court has “stated repeatedly that the 

fraud covered by the statute reaches any conspiracy for the 

purpose of impairing, obstructing or defeating the lawful 

function of any department of Government.” Tanner v. United 

States, 483 U.S. 107, 128 (1987) (internal quotation marks omitted) (collecting cases). Count II charged Kelerchian with violating § 371 by conspiring to defraud the FDA in carrying out 
14 No. 18-1320 

its regulatory responsibilities. Kelerchian argues that Count II 

charged him with violating only FDA policy as opposed to any 

statute or regulation with the force of law. He emphasizes the 

text of the indictment charging him with conspiring to defraud the FDA by interfering with and obstructing the lawful 

functions of the FDA to: 

a. Limit the sale of various restricted laser aiming sight devices to the military and law enforcement agencies only; 

b. Correctly identify first line purchasers of 

various laser aiming sight devices which 

were restricted to military or law enforcement agency purchasers only. 

As Kelerchian sees the case, no law or regulation restricts 

laser device sales to law enforcement, so he was charged with 

conspiring to violate only the variance the FDA granted Insight Technology to sell otherwise-illegal laser sights to law 

enforcement. Because this variance, Kelerchian continues, 

was not adopted in accordance with the Administrative Procedure Act, it has no force of law and cannot be used to bind 

third parties or to support criminal charges against them. 

The argument misreads the indictment. Count II did not 

charge Kelerchian with conspiring to violate the variance but 

with conspiring to defraud the FDA, rendering his Administrative Procedure Act argument irrelevant. Section 371 makes 

it a crime to defraud an agency of the United States “in any 

manner or for any purpose.” The indictment alleged that 

Kelerchian, Kumstar, and Slusser conspired to defraud the 

FDA by obstructing the agency’s ability to perform the two 

listed regulatory functions. Federal law provides the FDA 
No. 18-1320 15 

with the authority to regulate the sale of laser devices. See 21 

U.S.C. § 360ii. In carrying out its regulatory function, the FDA 

promulgated safety and performance standards for laser 

sights. 21 C.F.R. § 1040.10. Manufacturers are barred from 

selling products that do not comply with the standards the 

agency sets. 21 U.S.C. § 360oo(a). That prohibition is in place 

unless a valid variance applies to a sale. § 360oo(b). 

The variance is not a regulation, but as the indictment recognizes, granting these variances is an exercise of the FDA’s 

regulatory function over laser products. By deceiving Insight 

Technology into selling them non-compliant laser sights, 

Kelerchian and the other conspirators defrauded the FDA 

into allowing them to possess devices that federal law prohibits. They also led Insight to create a false paper trail for these 

devices that would make it impossible for the FDA to keep 

track of the true owners of these dangerous products, which 

the FDA is supposed to do. Such fraud impairs the ability of 

the FDA to regulate laser devices to prevent harm to the public. 

In United States v. F.J. Vollmer & Co., 1 F.3d 1511 (7th Cir. 

1993), we rejected an argument similar to Kelerchian’s. At issue in F.J. Vollmer was a settlement agreement reached between the ATF and Gun South, Inc., a firearms importer. The 

settlement agreement allowed Gun South to sell an otherwisebanned semi-automatic rifle only to law enforcement officers 

or agencies. Id. at 1514. Kenneth Nevius, a captain on active 

duty in the Illinois National Guard, took advantage of this exception and bought two restricted rifles using his National 

Guard stationery. He said he was buying the weapons “in 

connection with his official duties and not for the purpose of 

resale.” Id. He lied. He actually bought the guns to sell them 
16 No. 18-1320 

to F.J. Vollmer & Company, a firearms dealer. Nevius orchestrated several such deals. Nevius and F.J. Vollmer were indicted. The company was convicted of mail fraud and conspiracy to defraud the United States government. 

On appeal, the company argued that it was charged with 

conspiring to violate only the settlement agreement between 

the ATF and Gun South, which was being treated as if it were 

a “de facto substantive agency rule.” Id. at 1516. We rejected 

the argument, explaining that “F.J. Vollmer and Nevius were 

not convicted of violating a settlement agreement.” Id. at 1515. 

“The indictment ... specifically stated the elements” of a § 371 

conspiracy, making it evident to the court that this was the 

federal crime the defendants were charged with committing. 

Id. at 151516. “Further,” we continued, “because the convictions are not based on the violation of the settlement agreement, the defendants’ [APA] argument ... is irrelevant.” Id. at 

1516. We apply the same reasoning here. Count II properly 

charged Kelerchian with a violation of 18 U.S.C. § 371. 

B. Sufficiency of Evidence 

Kelerchian next argues that the government failed to 

prove the charges involving the so-called demonstration letters that enabled Kelerchian to buy machineguns for his personal collection (Counts III through VII) and failed to prove 

the money-laundering conspiracy charge (Count IX). On its 

own initiative or upon a defendant’s motion, a trial court 

“must enter a judgment of acquittal of any offense for which 

the evidence is insufficient to sustain a conviction.” Fed. R. 

Crim. P. 29 (a). 

We review de novo the denial of a defendant’s motion for 

acquittal, considering the evidence in the light most favorable 
No. 18-1320 17 

to the prosecution. United States v. Mohamed, 759 F.3d 798, 803 

(7th Cir. 2014). We “ask whether any rational trier of fact 

could have found the essential elements of a crime beyond a 

reasonable doubt,” United States v. Foley, 740 F.3d 1079, 1083 

(7th Cir. 2014) (internal quotation marks omitted), and “overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find 

guilt beyond a reasonable doubt.” United States v. Blassingame,

197 F.3d 271, 284 (7th Cir. 1999) (internal quotation marks 

omitted). This is usually a high hurdle for a defendant to clear, 

but “the height of the hurdle depends directly on the strength 

of the government’s evidence.” United States v. Garcia, 919 

F.3d 489, 496–97 (7th Cir. 2019) (reversing denial of Rule 29 

motion), quoting United States v. Jones, 713 F.3d 336, 339 (7th 

Cir. 2013) (affirming grant of Rule 29 motion). 

1. Demonstration Letters

Kelerchian argues that the evidence does not support his 

convictions for conspiring to make false statements and making false statements in the demonstration letters submitted to 

ATF. To recap, Count III alleged that Kelerchian violated 18 

U.S.C. § 371 by conspiring with Kumstar and Slusser to make 

false statements to the ATF by submitting letters falsely claiming that the Sheriff’s Department wanted demonstrations of 

otherwise-prohibited weapons that Kelerchian wanted for his 

personal collection. Counts IV through VII alleged that the 

phony demonstration letters were false statements to the ATF 

in violation of 18 U.S.C. § 1001. 

Kelerchian bases his argument on narrow readings of the 

text of the demonstration letters as compared to the 

indictment. He reads the indictment narrowly to charge him 

with conspiring to make and making specific false 
18 No. 18-1320 

statements—requests for demonstrations of machineguns. 

Nowhere in the essentially identical demonstration letters, 

Kelerchian contends, however, is there specific language, 

false or otherwise, actually requesting a demonstration. 

Because the indictment charged Kelerchian not with 

conspiring to make and making any false statement to the ATF 

but with conspiring to make and making specific false 

statements to the ATF, the government was required to 

produce evidence showing that the specific false statements 

were in fact made and failed to do so. We disagree. 

The letters said the Sheriff’s Department was “interested 

in a demonstration” of several listed guns and had found a 

dealer, Kelerchian, who had “offered to conduct such a 

demonstration.” The letters explained that the 

“demonstration[s] will give [the] department personnel a 

better understanding of the capabilities, limitations, and 

differences of these [requested] guns.” From the content of 

these letters, a reasonable jury could find that these were false 

requests for demonstrations. The letters could have had no 

other purpose. In addition, Kelerchian’s own testimony 

characterized the letters as a “request to demonstrate” 

machineguns. Kumstar also testified that each of the letters 

was “a demonstration request,” that Kelerchian had not 

offered demonstrations, and that the Sheriff’s Department 

was not really interested in any. In short, there was sufficient 

evidence to support Kelerchian’s convictions for conspiring 

to make and actually making false statements in the 

demonstration letters that he and his co-conspirators drafted. 

2. Money-Laundering Conspiracy 

Kelerchian’s challenge to his conviction for conspiring to 

commit money laundering poses the closest question in this 
No. 18-1320 19 

appeal. The money-laundering conspiracy charge stems from 

the conspirators’ second and third fraudulent machinegun 

purchases. The indictment charged Kelerchian with conspiring to launder money in violation of 18 U.S.C. § 1956(h), 

which makes it a crime to conspire to commit any of the 

money-laundering offenses defined in § 1956 or § 1957. 

The indictment specified that Kelerchian conspired to violate this statute in two ways. First was a conspiracy to engage 

in a financial transaction using the known proceeds of an unlawful activity (wire fraud to obtain the machineguns) to conceal the ownership and control of the proceeds from the specified unlawful activity in violation of § 1956(a)(1)(B)(i). Second was a conspiracy to use the proceeds of the wire fraud to 

engage in a monetary transaction exceeding $10,000 in violation of § 1957. The jury found Kelerchian guilty of both alleged conspiracies. We focus on the conspiracy to violate 

§ 1957, which we find was proven, so we need not address the 

theory under § 1956(a)(1)(B)(i). See United States v. Joshua, 648 

F.3d 547, 553 (7th Cir. 2011). 

A money-laundering violation under either § 1956 or 

§ 1957 requires proof of two distinct acts: the unlawful activity that generated “proceeds” and then the monetary transaction conducted with the criminal proceeds. United States v. 

Seward, 272 F.3d 831, 836 (7th Cir. 2001), quoting United States 

v. Mankarious, 151 F.3d 694, 705 (7th Cir. 1998). The underlying unlawful activity here was wire fraud. “To establish wire 

fraud under 18 U.S.C. § 1343, the government must prove the 

defendant (1) participated in a scheme to defraud, (2) intended to defraud, and (3) used interstate wires in furtherance 

of the fraud.” United States v. Buncich, 926 F.3d 361, 366 (7th 

Cir. 2019). The wire fraud offense was completed during the 
20 No. 18-1320 

second and third machinegun transactions when Kelerchian 

and the others sent materially false statements to H&K asserting that the machineguns were being purchased by the Lake 

County Sheriff. See United States v. Aslan, 644 F.3d 526, 545–46 

(7th Cir. 2011) (wire fraud statute “punishes the scheme, not 

its success”) (collecting cases); accord, e.g., United States v. 

Kennedy, 707 F.3d 558, 566–67 (5th Cir. 2013) (wire fraud distinct from money laundering of proceeds); United States v. 

Halstead, 634 F.3d 270, 280–81 (4th Cir. 2011) (health care fraud 

distinct from money laundering of proceeds). The machineguns were the proceeds of that wire fraud. According to 

the government, the way in which Kelerchian and Kumstar 

sold these weapons to dealer Adam Webber constituted 

money laundering. 

The government’s theories for the money-laundering conspiracy are that, after completing the fraud in the second purchase of machineguns, Kelerchian and Kumstar conspired to 

conceal the fact that machinegun parts were intended for 

dealer Adam Webber in violation of § 1956(a)(1)(B)(i) and conspired to engage in one or more transactions in criminally derived proceeds worth more than $10,000 in violation of § 1957. 

Kelerchian and Kumstar used Slusser as a middleman in their 

dealings with Webber to obscure the true ownership of the 

guns. In particular, Slusser sold the parts to Webber for 

$18,900 and received a check in his name as payment. He was 

instructed to deposit that check in his own account and then 

to issue cashier’s checks to Kelerchian and Kumstar for $9,450 

each. Kelerchian then waited nine months before paying H&K 

for the weapons. The intention, the government argued, was 

to make it appear as though the Sheriff’s Department bought 

and retained control over the weapons. Further, Kelerchian 

waited months to pay H&K to distance himself from the 
No. 18-1320 21 

Webber sale, making it look as though he was unaware of the 

connection between the money sent to H&K and the check he 

received from Slusser. The wire fraud theory thus holds together. 

But the government’s explanation of its theory raised a 

new issue in the law of wire fraud. The government must 

show that the scheme to defraud was aimed at some form of 

money or property. Cleveland v. United States, 531 U.S. 12, 19 

(2000).2 In his opening appellate brief, Kelerchian argued that 

the wire fraud the government alleged was not a transaction 

distinct from the sale of the fraudulently obtained 

machinegun parts to Webber. The government responded 

that the wire fraud was complete as soon as the defendants 

sent the purchase packets with fraudulent statements to 

H&K, so that the later sale of the parts was a distinct offense. 

We agree with that point, but Kelerchian argued in his reply 

brief that the government’s solution to the distinct-transaction 

problem posed a different fatal problem for the moneylaundering conspiracy charge. Submitting the fraudulent 

statements to H&K to obtain the machineguns, Kelerchian 

argued, did not amount to wire fraud because Kelerchian and 

his co-conspirators did not deprive anyone of a “property 

interest” as required under Cleveland. 

This property interest issue takes us to the edges of federal 

mail and wire fraud law and poses Kelerchian’s strongest 

 2 Although Cleveland and other Supreme Court cases establishing this 

rule involve the mail fraud statute, 18 U.S.C. § 1341, as opposed to the wire 

fraud statute, we have explained that “the elements of wire fraud under 

18 U.S.C. § 1343 directly parallel those of the mail fraud statute” so that 

“cases construing one are equally applicable to the other.” United States v. 

Leahy, 464 F.3d 773, 786 (7th Cir. 2006). 
22 No. 18-1320 

challenge to any of his convictions. In McNally v. United States,

the Supreme Court explained that the federal mail fraud statute is “limited in scope to the protection of property rights.” 

483 U.S. 350, 360 (1987), superseded by statute on other grounds, 

18 U.S.C. § 1346. To establish mail fraud, the government thus 

must “prove as an element of the offense ... that the defendant 

deprived the victim of a property right.” United States v. F.J. 

Vollmer & Co., 1 F.3d 1511, 1520 (7th Cir. 1993), citing McNally, 

483 U.S. at 359–61. Kelerchian argues that the government 

failed to identify a victim whom the defendants intended to 

deprive of a recognized property interest. He argues that neither the ATF’s regulatory interest in the transfer of firearms 

nor H&K’s interest in the legal disposition of its guns qualifies. The government’s interest will not suffice, but H&K’s interests will support the wire fraud theory. 

As discussed above, F.J. Vollmer & Co. involved a scam in 

which an Illinois National Guard captain, Kenneth Nevius, 

defrauded a weapons manufacturer into selling him restricted guns under the pretense that he was purchasing the 

weapons “in connection with” his official duties. 1 F.3d at 

1514. Nevius then resold the weapons to F.J. Vollmer & Company, a business dealing in the sale of firearms. Id. at 151314. 

Nevius and F.J. Vollmer were convicted of mail fraud in violation of § 1341. F.J. Vollmer argued that the mail fraud charge 

was insufficient because it “did not allege that the government had a property interest in the guns as is required by 

McNally.” Id. at 1520. As in this case, at F.J. Vollmer’s trial “the 

government did not allege in the indictment, present evidence 

at trial, nor was the jury instructed on the deprivation of a 

property right.” Id.
No. 18-1320 23 

We agreed with F.J. Vollmer, concluding that the government was not deprived of a qualifying property interest. 

Vollmer, 1 F.3d at 1521. The government argued that its “right 

to control the disposition of ... firearms is a property interest” 

of which Nevius and F.J. Vollmer deprived it through mail 

fraud. We rejected this argument, holding that “the government’s regulatory interests are not protected by the mail fraud 

statute.” Id. (emphasis added), citing, among other cases, 

United States v. Bruchhausen, 977 F.2d 464 (9th Cir. 1992). 

We conclude here, however, that the government proved 

that Kelerchian and his co-conspirators committed wire fraud 

against H&K, which had a sufficient property interest of 

which they schemed to deprive it. Kelerchian finds support 

for his position, though, in the Ninth Circuit’s Bruchhausen decision. We consider first that case and then decisions of this 

court and the Second Circuit that adopt a broader view of 

property interests when parties are induced to enter into illegal sales, especially of weapons. 

In Bruchhausen, the defendant was charged with a scheme 

to defraud American manufacturers by buying sophisticated 

technology, promising falsely that the purchased equipment 

would be used only in the United States, and then smuggling 

the goods to countries in the Soviet Bloc. “Representatives 

from these companies testified that they would never have 

sold to Bruchhausen had they known the truth.” 977 F.2d at 

466. On appeal the Ninth Circuit held that Bruchhausen had 

not defrauded the manufacturers of “property interests” 

within the meaning of the wire fraud statute. The court reasoned: “The manufacturers received the full sale price for 

their products,” and “While they may have been deceived 

into entering sales that they had the right to refuse, their 
24 No. 18-1320 

actual loss was in control over the destination of their products after sale.” Id. at 467. The Ninth Circuit wrote that while 

“the manufacturer may have an interest in assuring that its 

products are not ultimately shipped in violation of law ... that 

interest in the disposition of goods it no longer owns is not 

easily characterized as property.” Id. at 468. Accordingly, the 

court held “that the interest of the manufacturers in seeing 

that the products they sold were not shipped to the Soviet 

Bloc in violation of federal law is not ‘property’ of the kind 

Congress intended to reach in the wire fraud statute.” Id.

If that view were correct, then it would be difficult to affirm Kelerchian’s money-laundering conspiracy conviction. 

Bruchhausen is not the final word on the issue, however. The 

government’s Rule 28(j) letter cited cases from this circuit and 

the Second Circuit that support its view that Kelerchian and 

the others defrauded H&K of a property interest sufficient to 

allow use of wire fraud as “unlawful activity” to support 

Kelerchian’s money-laundering conspiracy conviction, and 

that view is consistent with the way the jury instructions and 

the government’s closing argument framed Count IX for the 

jury at trial. 

We start with United States v. Leahy, 464 F.3d 773 (7th Cir. 

2006), in which defendant Duff was convicted of defrauding 

the City of Chicago. A Chicago ordinance required the city to 

establish a goal of awarding not less than 25% of the annual 

dollar value of all city contracts to qualified minority-owned 

businesses and 5% of the annual dollar value to qualified 

women-owned businesses, and set aside certain contracts for 

such businesses. Id. at 778. To take fraudulent advantage of 

the ordinance, Duff, a white man, obscured the ownership 

and control of two of his businesses to give the city the false 
No. 18-1320 25 

impression that his mother and a black man were running 

them. Id. at 77981. Through this fraud, Duff was able to win 

lucrative contacts with the city. Duff and others were eventually convicted of wire fraud, in addition to other offenses. The 

defendants appealed, arguing that the indictment could not 

support a conviction under the applicable mail and wire 

fraud statutes because “the only loss Chicago suffered was to 

its regulatory interests—an intangible right unprotected by 

these statutes.” Id. at 786. 

We rejected that argument. We noted that the object of the 

wire fraud was in fact property—money paid under contracts. Id. at 78788. We distinguished Cleveland, where the Supreme Court held that for mail-fraud purposes, Louisiana did 

not have a property interest in state permits or licenses it issued for video poker machines. See 531 U.S. at 21–23. Unlike 

the fraud to obtain the licenses in Cleveland, in Leahy “the 

fraud was committed both against Chicago as a regulator and 

also against the city as a property holder.” 464 F.3d at 788. 

This “scheme precisely and directly targeted Chicago’s coffers 

and its position as a contracting party.” Id. We concluded that 

Chicago suffered a property loss “in that it paid for a service 

provided by [a minority-owned business] or [women-owned 

business] that it did not receive.” Id. We affirmed the mail and 

wire fraud convictions. 

Leahy is not precisely on point—the fraud there was aimed 

at the buyer, not the seller, of products and services—but it is 

instructive. First, in both cases, the object of the fraud was 

property—money in Leahy and here machineguns. Second, in 

both cases one party to a contract deceived the other to induce 

it to enter into the contract. In Leahy the city was deceived into 

contracting with businesses controlled by Duff rather than by 
26 No. 18-1320 

minorities or women, as the ordinance called for. Here, H&K 

was induced to sell machineguns to a buyer it thought was 

lawful (the Sheriff’s Department) when the real buyers were 

the defendants, who could not lawfully buy the machineguns. 

Kelerchian’s fraud deprived H&K of the ability to ensure that 

its products were sold in compliance with federal law. As 

Kelerchian points out, H&K was paid the full price for the machineguns. In Leahy, too, however, the city received the services it paid for, yet not from the sorts of businesses it thought 

it was paying for them. 464 F.3d at 788. We treated that sort of 

loss as sufficient, noting that the object of the fraud “was 

money, plain and simple, taken under false pretenses from 

the city its role as a purchaser of services.” Id. 

The government also finds support from Second Circuit 

cases. In United States v. Schwartz, the defendants purchased 

night-vision equipment from Litton Industries. 924 F.2d 410 

(2d Cir. 1991). The Arms Export Control Act restricted the sale 

of this equipment to certain countries (including Argentina, 

then fighting the United Kingdom in the Falklands War), so 

Litton sought assurances that the defendants would not export purchased equipment to restricted countries. Id. at 414. 

The sales contracts required the buyers to assure that they 

would comply “with all laws and regulations pertaining to 

the export of night vision goggles.” Id. As the defendants 

placed additional orders, Litton sought further assurances 

and documentation that the equipment was not destined for 

restricted countries. The defendants signed the contracts and 

promised to abide by applicable laws but then exported regulated night-vision goggles to Argentina, where they were 

used against British forces. Id. The defendants were convicted 

of wire fraud, among other crimes. Id. at 420. 
No. 18-1320 27 

In challenging their wire fraud convictions for the Argentine sales, the defendants argued that Litton did not suffer any 

economic harm and thus could identify no qualifying property interest. Id. The Second Circuit upheld the convictions because the defendants’ “misrepresentations went to an essential element of the bargain between the parties and were not 

simply fraudulent inducements to gain access to Litton equipment.” Id. at 421. The court explained that “the fact that Litton 

was paid for its night vision goggles does not mean that Litton 

received all it bargained for. In fact, it did not.” Id. The “defendants’ conduct deprived Litton of the right to define the 

terms for the sale of its property ... and cost it, as well, good 

will because equipment Litton ... sold was exported illegally.” 

Id.

In later cases, the Second Circuit has clarified the test it applied in Schwartz. The court has acknowledged that “[t]he 

‘right to control one’s assets’ does not render every transaction induced by deceit actionable under the mail and wire 

fraud statutes.” United States v. Binday, 804 F.3d 558, 570 (2d 

Cir. 2015), quoting United States v. Wallach, 935 F.2d 445, 463 

(2d Cir. 1991). Its “cases have drawn a fine line between 

schemes that do no more than cause their victims to enter into 

transactions they would otherwise avoid—which do not violate the mail or wire fraud statutes—and schemes that depend 

for their completion on a misrepresentation of an essential element of the bargain—which do violate the mail and wire 

fraud statutes.” Id., quoting United States v. Shellef, 507 F.3d 82, 

108 (2d Cir. 2007). This is a fine distinction, but Kelerchian and 

his co-conspirators fell on the wrong side of it, as the defendants in Schwartz did with their fraud to obtain arms for illegal 

export. 
28 No. 18-1320 

In Shellef, for example, the defendants persuaded a company to sell them hundreds of thousands of pounds of a 

highly regulated chemical by falsely representing that they 

would not resell the solvent within the United States. 507 F.3d 

at 8990. The court distinguished Schwartz by focusing on the 

different misrepresentations made in the cases. In Shellef, the 

misrepresentations induced the seller only “to enter into a 

transaction it would otherwise have avoided,” whereas in 

Schwartz, the defendants had misrepresented “an essential element of the bargain.” Id. at 109, quoting Schwartz, 924 F.2d at 

421. In explaining this distinction further, the Second Circuit 

later said that it “reject[s] application of the mail and wire 

fraud statute where the purported victim received the full 

economic benefit of its bargain,” and upholds “convictions ... 

where the deceit affected or the victim’s economic calculus or 

the benefits and burdens of the agreement.” Binday, 804 F.3d 

at 570. 

The Second Circuit opinions and our opinion in Leahy

show that schemes to defraud a party into entering a contract 

it would not enter if it had been told the truth, but where the 

fraudsters deliver the agreed money, goods, or services are 

close to the edge of the reach of the wire and mail fraud 

statutes. We do not attempt here, in this money-laundering 

conspiracy case, to establish a comprehensive guide on the 

scope of the mail and wire fraud statutes. We concentrate on 

the case before us, focused on illegal imports of highly 

regulated and dangerous machineguns. On the strength of 

our decision in Leahy and the Second Circuit’s in Schwartz, 

which is remarkably close to our facts and persuasive, we 

conclude that the government proved that the scheme to 

defraud H&K involved a sufficient property interest to 
No. 18-1320 29 

support using wire fraud as the underlying unlawful activity 

for a money-laundering conspiracy charge. 

As in Leahy, the scheme to defraud induced one party here 

to contract with others who were not legally entitled to enter 

into the contract. And as in Schwartz, this case involves much 

more than the seller’s preferences about the terms of the deals. 

As in Schwartz, an arms manufacturer was defrauded into 

making a sale to buyers who were legally prohibited from 

buying the goods. We agree with the Second Circuit’s explanation in Schwartz that, in such a deal, the fact that the seller 

was paid full price does not mean it received all it bargained 

for and is not decisive. The Bruchhausen view fails to take into 

account the damage to goodwill from the illegal sale and, we 

add, the legal and regulatory risk that the seller faces in such 

deals. If Litton (in Schwartz) and H&K (here) had known the 

true facts of the sales, those companies would have faced 

criminal liability. Even the investigation of the criminal transactions posed costs and legal risks for the sellers. 

In the language of the Second Circuit, the destination of 

the machineguns—a law enforcement agency—was an 

“essential element of the bargain” between H&K and the 

supposed buyer. Without the Sheriff’s Department stationery, 

Kelerchian and the others could not even have approached 

H&K about buying these machineguns. The sale required 

submitting the ATF forms and an application certifying that 

the purchaser of the guns was a law enforcement agency. 

Although H&K did not lose any money in the machinegun 

transaction itself, by illegally selling firearms it opened itself 

up to risks it did not bargain for: risks of liability, of increased 

government scrutiny, and negative publicity, all of which in 

turn could jeopardize future sales. These are serious 
30 No. 18-1320 

repercussions central to H&K’s calculus of the “benefits and 

burdens” of this transaction. 

Comparing the Ninth Circuit’s decision in Bruchhausen

with the Second Circuit’s decisions in Schwartz and its progeny, we think the Second Circuit has the better reading of the 

mail and wire fraud statutes. Although “property” in these 

statutes is not broad enough to encompass intangible interests 

like government regulatory interests, “property” is not so narrow as to exclude any tangible good or service for which fair 

market value is paid. In Bruchhausen, the Ninth Circuit rejected the idea that a seller could have a cognizable property 

interest “in assuring that its products are not ultimately 

shipped in violation of law” because that would mean the 

manufacturer’s interest is “in the disposition of goods it no 

longer owns.” 977 F.2d at 468. We respectfully disagree. The 

seller’s interest is not only in shipping goods legally, but also 

in not selling products in violation of federal law. That interest 

exists before the seller relinquishes ownership. As the concurrence in Bruchhausen explained: “The strictures an owner puts 

on his willingness to sell an item are not mere ephemera. 

When a prospective buyer lies in order to evade those strictures, a fraud has been committed upon the owner of the item 

just as surely as if the buyer had issued a rubber check.” Id. at 

469 (Fernandez, J., concurring). 

H&K sold the machineguns to Kelerchian and his coconspirators only because of their deceit. Because this fraud 

deprived H&K of a cognizable property interest in avoiding 

illegal sales of its products, the government established a 

violation of § 1343. This is as far as we need to go to affirm 

Kelerchian’s conviction on conspiracy to launder money in 

violation of § 1957. 
No. 18-1320 31 

Kelerchian also argues that the government failed to prove 

that he conspired “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds 

of” the wire fraud in the second machinegun purchase. See 18 

U.S.C. § 1956(a)(1)(B)(i). Although such evidence is needed to 

sustain a § 1956 conviction, we need not decide whether the 

government proved this allegation. As discussed above, the 

jury expressly found Kelerchian guilty of conspiring to violate 

both § 1956 and § 1957. That means that Kelerchian must 

show that the evidence was insufficient under either theory to 

overturn his conviction on Count IX. Because a rational jury 

could find Kelerchian guilty of conspiracy to violate § 1957, 

we affirm his conviction on Count IX. 

C. Jury Instructions 

1. Standard of Review 

Kelerchian raises several objections to the jury instructions. “We review de novo whether jury instructions accurately 

summarize the law, but give the district court substantial discretion to formulate the instructions provided that the instructions represent a complete and correct statement of the 

law.” United States v. Edwards, 869 F.3d 490, 496 (7th Cir. 2017), 

quoting United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 

2014). We review jury instructions as a whole and in context. 

United States v. al-Awadi, 873 F.3d 592, 598 (7th Cir. 2017).

2. Conspiracy Instructions 

Kelerchian challenges the jury instructions on three distinct conspiracy charges. Count I alleged that he conspired to 

make false statements regarding the records required to be 

kept by a licensed firearms dealer. Making the false statements violated 18 U.S.C. § 924(a)(1)(A), which is the 
32 No. 18-1320 

substantive crime. Similarly, making false statements to the 

ATF in violation of 18 U.S.C. § 1001 was the substantive crime 

of Count III’s conspiracy charge, and money laundering in violation of § 1956 and § 1957 was the substantive offense in 

Count IX’s conspiracy charge. 

To establish a conspiracy to commit an offense against the 

United States in violation of § 371, the government must 

prove “(1) an agreement to commit an offense against the 

United States; (2) an overt act in furtherance of the conspiracy; 

and (3) knowledge of the conspiratorial purpose.” United 

States v. Soy, 454 F.3d 766, 768 (7th Cir. 2006). The government 

must show only “that the conspirators agreed that the underlying crime be committed. ... In other words, each conspirator 

must have specifically intended that some conspirator commit 

each element of the substantive offense.” Ocasio v. United 

States, 136 S. Ct. 1423, 1432 (2016). “[T]he fundamental characteristic of a conspiracy is a joint commitment to an ‘endeavor which, if completed, would satisfy all the elements of 

[the underlying substantive] criminal offense.’” Id. at 1429, 

quoting Salinas v. United States, 522 U.S. 52, 65 (1997) (alteration in original). 

Kelerchian asked the district court to instruct the jury that 

the government had to prove every element of the substantive 

offenses underlying the § 371 charges. The court declined to 

give that instruction and instead, for each of the three relevant

conspiracy counts, gave the Seventh Circuit’s Pattern Jury Instruction, telling the jurors that that government had to 

“prove each of the following elements beyond a reasonable 

doubt:”(1) that the conspiracy charged in the indictment existed; (2) that the defendant knowingly joined the conspiracy 

with the intent to advance it; and (3) that one of the 
No. 18-1320 33 

conspirators committed an overt act to advance the charged 

conspiracy. See 7th Cir. Pattern Criminal Jury Instr. § 5.08(A) 

(2018). For each conspiracy count, the court also gave the jurors an Eighth Circuit Pattern Instruction at the Government’s 

request: “To help you decide whether the defendant conspired to commit” the relevant substantive offense, the jury 

“should consider the elements of the [substantive offense].”

The court then listed the elements of each of the substantive 

offenses and instructed the jurors that they “should consider 

these elements in determining whether the defendant conspired to commit” the underlying offense at issue. 

Kelerchian argues that these instructions misled the jurors 

into thinking that they were not obliged to consider the elements of the substantive offenses to convict Kelerchian on the 

conspiracy charges against him. In particular, he asserts that 

the use of “should” as opposed to “must” was problematic. 

He argues that the word “should” suggested that the jury 

could disregard entirely the elements of the substantive 

crimes in the conspiracy charges and convict on a finding that 

a generic conspiracy existed, rather than a conspiracy to commit a specific, defined crime. The problem was exacerbated, 

Kelerchian contends, by instructions saying that the government must prove the elements of conspiracy beyond a reasonable doubt. 

These instructions were not erroneous. We have said before that “should” and “must” are interchangeable in this context: “[B]oth words are imperative when used to instruct a 

jury,” and “it is hardly plausible that a jury would reach a different verdict based on the use of ‘should’ or ‘must.’” United 

States v. Davis, 724 F.3d 949, 955 (7th Cir. 2013). That is how 

the district court used the terms throughout its instructions 
34 No. 18-1320 

here. The jurors were instructed that, in deliberations, they 

“should” or “should not” do a variety of things that are mandatory or prohibited. For example, the jurors were told that 

they “should not consider the possible punishment for the defendant who is on trial,” “should rely on your independent 

recollection of the evidence,” “should not be unduly influenced by the notes of other jurors,” and “should find the defendant not guilty” if the government failed to prove all elements of an alleged offense beyond a reasonable doubt. We 

see no meaningful difference between the framing of these instructions and the instructions to which Kelerchian objects. 

The instructions communicated correctly that to convict 

on the conspiracy counts, the jury needed to find that Kelerchian “agree[d] with [the] others to commit the acts which 

constitute the substantive offense[s]” defined by 

§ 924(a)(1)(A), § 1001, and §§ 1956 and 1957. United States v. 

Craig, 573 F.2d 455, 486 (7th Cir. 1977). There was no error. 

3. Demonstration Letter Instruction 

Kelerchian also argues that the district court erroneously 

instructed the jury regarding ATF’s requirements for demonstration letters. His issue is with Instruction 27, which said in 

relevant part: 

Machine guns may also be imported as dealer 

samples if a dealer can establish to the Bureau 

of Alcohol, Tobacco, Firearms and Explosives 

by specific information: 

o that there is a governmental customer 

requiring a demonstration of the 

weapons; and 
No. 18-1320 35 

o the weapons are available to fill subsequent orders. 

In addition, the governmental entity must provide a letter expressing a need for a particular 

model or interest in seeing a demonstration of a 

particular weapon. 

If a dealer requests more than one machine gun 

of a particular model, he must also establish his 

need for the quantity of samples sought to be 

imported. 

Kelerchian contends that this instruction selectively 

pulled a phrase from 27 C.F.R. § 479.112(c), which governs the 

registration of imported firearms, including those acquired 

pursuant to demonstration letters, to create the erroneous impression that “dealer sales samples required a demonstration 

of the weapons” to take place. The government responds that 

Kelerchian is focusing on the wrong regulation. Instruction 27 

addressed 27 C.F.R § 479.105, which applies to the transfer, 

rather than the importation, of machineguns, and subsection 

(d) specifically deals with demonstration letters. In short, 

§ 479.112(c) applies to importation of firearms for demonstrations and § 479.105(d) applies to domestic transfers of machineguns for the same purpose. Kelerchian was alleged to 

have conducted dealer sample purchases involving the importation of machine guns only in Count IV. The remaining 

counts involved domestic transfers.

Regardless of which regulation Instruction 27 is based on, 

Kelerchian’s challenge fails because the instruction did not 

say that the dealer must actually perform a demonstration. It 

said that a dealer must show “that there is a governmental 
36 No. 18-1320 

customer requiring a demonstration.” Another instruction 

told the jury: “The law does not require a dealer who receives 

a machine gun for use as a sale sample to do a demonstration 

of the machine gun.” The instructions as a whole correctly 

stated the law.

D. Closing Argument Issues 

Kelerchian also argues that the government committed 

prosecutorial misconduct and improperly amended the indictment. Neither argument is persuasive. 

1. Prosecutorial Misconduct 

We review claims of prosecutorial misconduct in two 

steps. “First, we determine whether the prosecutor’s comments were improper standing alone. Second, we ask whether 

the remarks in the context of the whole record denied the defendants the right to a fair trial.” United States v. Durham, 766 

F.3d 672, 684 (7th Cir. 2014), citing United States v. Bell, 624 

F.3d 803, 811 (7th Cir. 2010). To evaluate the relevant statements in context to determine whether they deprived a defendant of a fair trial, we consider “1) the nature and seriousness of the misconduct; 2) the extent to which the comments 

were invited by the defense; 3) the extent to which the prejudice was ameliorated by the court’s instruction to the jury; 

4) the defense’s opportunity to counter any prejudice; and 5) 

the weight of the evidence supporting the conviction.” United 

States v. Common, 818 F.3d 323, 333 (7th Cir. 2016). 

At trial, Kelerchian did not object to the prosecution’s arguments in closing that he now argues are improper. We 

therefore review only for plain error. “On plain-error review, 

we may reverse if: (1) an error occurred, (2) the error was 

plain, (3) it affected the defendant’s substantial rights, and (4) 
No. 18-1320 37 

it seriously affected the fairness, integrity, or public reputation of the proceedings.” United States v. Pierson, 925 F.3d 913, 

919 (7th Cir. 2019), citing United States v. Olano, 507 U.S. 725, 

73238 (1993). Together, these inquiries mean that Kelerchian 

“must demonstrate that the comments at issue were ‘obviously’ or ‘clearly’ improper ... [such] that not only was [he] 

deprived of a fair trial, but also that the outcome of the trial 

probably would have been different absent the prosecution’s 

remarks.” United States v. Hills, 618 F.3d 619, 640 (7th Cir. 

2010) (internal citation omitted). In essence, the question is 

whether the argument was so egregious that the trial judge 

was required to intervene without a defense objection. 

Kelerchian argues that the government’s rebuttal improperly appealed to the jurors’ emotions and invited them to consider the societal consequences of their verdict. Some background is needed on relevant testimony solicited during trial. 

There was testimony throughout trial that the machineguns 

Kelerchian and his co-conspirators requested for dealer sales 

samples were not appropriate for use by the Sheriff’s Department. They included a “multipurpose belt-fed machine gun 

... typically used on top of a Humvee or maybe on the door 

of a helicopter” and a “light-weight, belt-fed machinegun,” 

“designed for the Navy SEAL teams for warfare.” Testimony 

of this nature helped show that the dealer sales sample letters 

were fraudulent because the Sheriff’s Department had no use 

for the sample firearms. 

In closing, defense counsel responded by pointing out that 

the ATF agreed to allow H&K to provide these weapons to 

Kelerchian to demonstrate to the Sheriff’s Department: 

I want to talk now about the demonstration letters. Count 3 is charged as a conspiracy. Counts 
38 No. 18-1320 

4 through 7 are charged as making the actual 

statement, the false statement. Every letter at issue in this case says, well, basically the same 

thing ... approximately seven letters on the Lake 

County Sheriff’s Department letterhead requesting firearms demonstrations of machine 

guns from Kelerchian knowing the same to contain a materially false, fictitious, and fraudulent 

statement because Vahan Kelerchian very well 

knew in fact, no demonstration was going to occur. 

First of all, ladies and gentlemen, every single 

one of those letters was accepted by the ATF, 

was signed off by numerous people from the 

ATF as justifying the transfer of those guns. This 

whole discussion about these guns not being 

appropriate for the Lake County Sheriff’s Department is completely undercut by ATF signing off and indicating that, in fact, these are the 

kinds of weapons that are justifiable in a 

demonstration letter. 

Defense counsel emphasized the point a second time in closing: “ATF found [these] letter[s] acceptable.” 

In rebuttal, the government responded: 

There is no way on earth that these types of 

guns, any department would require a demonstration because they’re belt-fed machine guns 

... [T]hese guns are so far outside the bounds of 

what regular law enforcement uses that there is 

no legitimate reason to have them 
No. 18-1320 39 

demonstrated. They’re belt-fed machine guns 

with ammunition that is three inches long. 

There’s no reason on earth why any law enforcement agency would want them to be 

demonstrated. Mr. Kelerchian wants those. He 

told you that, but there’s no reason an agency 

would want them demonstrated. ... That’s why 

the demonstration letters are utter nonsense because the weapon is so far out of bounds it 

doesn’t make any sense. Under their rationale, 

the Lake County Sheriff’s Department, Mr. 

Kelerchian, could demonstrate a tank, and he 

would get to keep it. How absurd is that? The 

law isn’t meant to function in absurdities. It’s 

meant to be applied by rational people such as 

you to determine what’s acceptable. 

Kelerchian argues that the prosecution’s use of the word 

“acceptable” invited the jury to decide what is socially acceptable as opposed to what is legal. According to the government, its use of the term “acceptable” in context was meant 

only to remind the jury that its job was to determine whether 

the letters requesting demonstrations were legitimate. In rejecting a similar claim of plain error in closing argument, we 

have noted that “[l]awyers sometimes are not as precise as 

they should be when giving extemporaneous closing arguments.” United States v. Thomas, — F.3d —, — , 2019 WL 

3490675, at *6 (7th Cir. Aug. 1, 2019). This jury was instructed 

to focus on the instructions and to remember that lawyers’ arguments are not evidence. The government’s use of the ambiguous term “acceptable,” which did not even draw an objection, did not deny Kelerchian a fair trial or rise to the level 

of plain error. 
40 No. 18-1320 

2. Constructive Amendment 

A constructive amendment of an indictment occurs in violation of the Fifth Amendment when the jury is allowed “to 

convict for an offense outside the scope of the indictment.” 

Pierson, 925 F.3d at 91920. Kelerchian argues that the government’s closing attempted to change its theory of liability as to 

the demonstration letter charges in Counts III through VII. 

The government argued in rebuttal: 

In Instruction Number 27, it tells you how you 

get these guns into the country for purposes of 

a demonstration. You know, it’s sales samples. 

That’s what it’s called, dealer samples. There’s a 

couple requirements. It’s pretty loose. I’ll grant 

you that. And there certainly doesn’t have to be 

any demonstration—and I mentioned that to 

you in the first part of my closing—but whether 

or not one occurs is sort of helpful to know 

whether or not they intended one. And it says 

that you have to have a document with specific 

information that there was a governmental customer requiring a demonstration of the weapon. 

Again, there was no objection to this argument. On appeal, 

Kelerchian argues that the reference to “‘a document with 

specific information’ ... led the jury to underst[and] that the 

‘document’ the government referred to in relation to Instruction No. 27, [was], in fact the [demonstration] letters referenced in Counts 3–7.” Although Kelerchian does not spell this 

out clearly, he implies that the government changed its theory 

for Counts III through VII, arguing now that the “false statements” were in an unspecified document submitted to H&K 
No. 18-1320 41 

as opposed to in the demonstration letters as alleged in the 

indictment. 

We see no error, let alone a plain error. The government 

was always clear that the demonstration letters were the basis 

for Counts III through VII. They were the documents that contained the “specific information” asserting “that there is a 

governmental customer requiring a demonstration of the 

weapons.” The government’s closing did not indicate otherwise simply because in this excerpt it uses the term “document” as opposed to “demonstration letter.” 

The judgment of the district court is 

AFFIRMED.