In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2410

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHANE BUCHMEIER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 82--Joan B. Gottschall, Judge.

Argued January 18, 2001--Decided June 26, 2001

 Before Cudahy, Kanne, and Rovner, Circuit

Judges.

 Kanne, Circuit Judge. A jury found Shane

Buchmeier guilty of two counts of being a

felon in possession of a firearm in

violation of 18 U.S.C. sec. 922(g)(1),

and two counts of receiving stolen

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

922(j). Because of his multiple prior

violent felony convictions, Buchmeier was

sentenced as an armed career

criminalpursuant to section 4B1.4 of the

United States Sentencing Guidelines,

which resulted in his receiving a prison

term of 188 months. He now appeals,

arguing that his conviction is invalid

because the district court abused its

discretion by: (1) denying his motion to

dismiss all counts of the indictment

against him because they were

duplicitous; (2) refusing to submit a

special interrogatory to the jury for

each firearm listed in the indictment;

(3) refusing to submit his theory of

defense instruction to the jury; and (4)

denying his motion for a judgment of

acquittal. Upon review of the district

court’s rulings, we agree with the court

with regard to all but one of these

rulings; we find that Counts I and III of

the indictment are duplicitous. However,

as we explain, the error resulting from

the government’s formulation of these

counts was harmless. Therefore, we affirm

Buchmeier’s conviction.
I. History

 Arthur Haverstock, a resident of Crown

Point, Indiana, took a two-week vacation

to the Bahamas, leaving his nineteenyear-old nephew, Justin Gorball, to watch

over his house. In his residence,

Haverstock maintained an extensive

firearms collection. Some of these

weapons were located in a gun cabinet in

Haverstock’s bedroom and others were

stored in a gun safe anchored to the

floor of a closet. During this two-week

period, Gorball invited a recently-made

acquaintance, Neil Schroeder, to his

uncle’s house, and allowed him to sleep

there on several occasions. Problems

arose, however, when Schroeder began to

"visit" Haverstock’s house when Gorball

was not there and without Gorball’s

permission. Schroeder brought his friend

John Weis with him on several of these

visits. He showed Weis the different

items in the Haverstock home, including

Haverstock’s firearms collection. On

August 5, Schroeder took Weis with him to

Steger, Illinois, to Rocco DeMarco’s

house, where they met DeMarco, Mark

Flamini Rossi, Brian Engel, and

Buchmeier. During this visit, Schroeder

announced to the group of men that he

could obtain firearms. Buchmeier

expressed interest, telling Schroeder to

"bring them." After this discussion,

Schroeder left DeMarco’s house with Weis

and Rossi and drove to the home of Tommy

Joyce. Schroeder obtained a firearm from

Joyce’s house and returned to DeMarco’s

house. The group of men then drove to

Buchmeier’s home. At Buchmeier’s house,

Weis, DeMarco, and Rossi watched

Schroeder give Buchmeier the firearm he

had obtained from Joyce’s house, and

DeMarco saw Buchmeier place the firearm

in his van. Weis, DeMarco, and Rossi also

heard Schroder tell Buchmeier that he

could obtain additional firearms.

Buchmeier again expressed his interest to

Schroeder, indicating that if Schroeder

obtained additional firearms he would

take a look at them.

 That same day, Schroeder took Weis and

Rossi with him to Haverstock’s house.

Schroeder obtained two handguns from

Haverstock’s gun safe, which Rossi

recognized as a .357 revolver and a .44

magnum revolver. The three men then

joined DeMarco, Engel, and Buchmeier at
Buchmeier’s house, where Schroeder and

Rossi each handed Buchmeier one of the

firearms taken from the Haverstock home.

Buchmeier discharged one of the guns into

the woods near his house. He then put one

of the weapons into his van. Engel heard

Buchmeier explain that he was going to

purchase the firearms. After giving

Buchmeier these two handguns, Schroeder

indicated to Buchmeier that he could also

obtain shotguns and rifles. Buchmeier

again expressed an interest in

Schroeder’s offer. Schroeder and Weis

then left Buchmeier’s house. After

Schroeder and Weis had left, Engel and

DeMarco heard Buchmeier state that he

would "get rid" of the guns he had

obtained from Schroeder through an

individual by the name of Richie in Park

Forest, Illinois. 

 The next day, on August 6, Schroeder and

Weis returned to the Haverstock home.

Weis observed Schroeder remove

approximately eight rifles from

Haverstock’s gun cabinet and put them

into a duffle bag. Schroder also took a

quantity of fishing supplies, which he

loaded into a plastic crate. Schroeder

and Weis then went to Buchmeier’s house

with these items. Schroeder displayed the

contents of the duffle bag to Buchmeier.

DeMarco saw Buchmeier place the duffle

bag and fishing supplies into his van.

The four men then drove to DeMarco’s

house. Buchmeier, DeMarco, and Schroeder

went inside. Schroeder later emerged from

the house carrying a pack of marijuana, a

pager, and $150, all of which he showed

to Weis. 

 In relation to these transactions,

Buchmeier told DeMarco that he had

"pretty much ripped off" Schroeder.

Buchmeier also explained that he would

trade or sell the firearms. Approximately

one week later, DeMarco watched Buchmeier

saw off the barrel of a shotgun.

Buchmeier told DeMarco that he would keep

this firearm in his van for protection.

Buchmeier also told Engel that the

shotgun was one of the guns he had

purchased from Schroeder. 

 Haverstock returned home from his

vacation to find that a number of items

had been stolen, including the firearms

from the gun cabinet in his bedroom. He

contacted the police regarding the

burglary. Haverstock was also unable to
find the key to his gun safe. After

obtaining a new key, approximately two

weeks later, Haverstock opened his gun

safe and found that two handguns had been

removed. Haverstock made an inventory for

the police of all of the stolen items. 

 Special Agent Jeff Emmons, of the Bureau

of Alcohol, Tobacco and Firearms (the

"ATF"), investigated the Haverstock

burglary. During this investigation,

Agent Emmons obtained the cooperation of

Schroeder and recorded a telephone

conversation between Buchmeier and

Schroeder regarding the stolen firearms.

Some time after recording this

conversation, Agent Emmons interviewed

Buchmeier. Buchmeier admitted that he had

purchased fishing equipment from

Schroeder, and that he had seen firearms

in the trunk of Schroeder’s car, but he

denied ever being interested in

purchasing firearms from Schroeder, much

less having actually purchased any

firearms from him. Buchmeier subsequently

acknowledged, however, that he handled

one of the firearms. He also acknowledged

that his voice was the voice on the

recorded phone conversation discussing

the stolen firearms with Schroeder.

Buchmeier explained to Agent Emmons that

the firearms had merely passed through

his hands. He then asked Agent Emmons why

he was interested in him since he was

"small time" and had not sold any of the

firearms to gang members.

 A grand jury returned a six count

indictment against Buchmeier and

Schroeder. Counts I and IV charged

Buchmeier with two instances of being a

felon in possession of a firearm in

violation of 18 U.S.C. sec. 922(g)(1).

Counts III and VI charged Buchmeier with

two separate incidents of receiving

stolen firearms in violation of 18 U.S.C.

sec. 922(j). The remaining two counts of

the indictment charged Schroeder with two

instances of selling stolen firearms in

violation of sec. 922(j). Buchmeier filed

a motion to dismiss the four counts of

the indictment against him, arguing that

the counts were impermissibly

duplicitous. The district court denied

this motion. Buchmeier was tried by jury

and found guilty of all four counts. 

II. Analysis

A. Buchmeier’s Motion for Judgment of

Acquittal 
 We will first review Buchmeier’s claim

that the district court improperly denied

his motion for judgment of acquittal

because if he is correct, we need not

address his other claims. Buchmeier

argues that the district court erred in

denying his motion because the evidence

presented at his trial was insufficient

to support his conviction. The government

contends that the district court properly

denied his motion. 

 We note that there is a question of

whether Buchmeier made his motion for a

judgment of acquittal in a timely manner.

In a case where a defendant has been

convicted by a jury, Rule 29(c) of the

Federal Rules of Criminal Procedure

explains that "a motion for judgment of

acquittal may be made or renewed within 7

days after the jury is discharged or

within such further time as the court may

fix during the 7-day period." Fed. R. Crim.

P. 29(c). The jury’s guilty verdict was

returned on January 15, 1998; however,

Buchmeier did not file his motion for a

judgment of acquittal until February 2,

1998. We have previously found that a

defendant’s failure to properly file such

a motion results in the waiver of "any

challenge on appeal to the sufficiency of

the evidence absent a manifest

miscarriage of justice." United States v.

Baker, 40 F.3d 154, 160 (7th Cir. 1994).

The government has not argued that

Buchmeier waived this argument on appeal,

however, instead choosing to argue that

there was sufficient evidence presented

at Buchmeier’s trial to support his

conviction. Thus, the government has

waived Buchmeier’s waiver. See id. at 160

(citing United States v. Moya-Gomez, 860

F.2d 706, 745-46 n.33 (7th Cir. 1988)). 

 At the conclusion of Buchmeier’s trial,

the district court instructed the jury

that it could find Buchmeier guilty of

any of the four counts charged in the

indictment if it unanimously agreed that

he possessed at least one of the firearms

listed in that charge and if it also

agreed as to which particular firearm he

possessed. This "general verdict of

guilty" for those counts listing multiple

firearms "may be upheld only if there is

sufficient evidence to support the charge

as to each of the acts alleged." United

States v. Berardi, 675 F.2d 894, 902 (7th

Cir. 1982). We have explained that "[t]he
reason for this rule is that, with the

’one-is-enough’ instruction that was

given here, it would be impossible to

determine whether the jury based its

decision on an act for which there w[as]

insufficient evidence." Id. In evaluating

Buchmeier’s claim that the evidence was

insufficient to support his conviction we

will "consider the evidence in the light

most favorable to the government, drawing

all reasonable inferences in its favor."

United States v. Fraizer, 213 F.3d 409,

416 (7th Cir. 2000). Additionally, we

will find for Buchmeier "only if there is

no evidence from which the trier of fact

could have found the essential elements

of the crime beyond a reasonable doubt."

United States v. Polin, 194 F.3d 863, 866

(7th Cir. 1999). 

 The main thrust of Buchmeier’s challenge

is an attack on the testimony of various

witnesses called by the government during

his trial. He first argues that

Haverstock’s testimony as to what

firearms were stolen from his house is

not credible. He likewise contends that

DeMarcco, Rossi, and Weiss testified

inconsistently as to whether they

actually saw him in possession of any of

the firearms listed in the indictment.

Buchmeier asserts that these alleged

weaknesses in the government’s evidence

indicate that there is reasonable doubt

as to his culpability for the crimes for

which he was convicted. 

 We have repeatedly explained with regard

to claims like Buchmeier’s that

"[b]ecause questions of credibility are

solely for the trier of fact, such

arguments are ’wasted on an appellate court.’"

United States v. Hatchett, 31 F.3d 1411,

1416 (7th Cir. 1994) (quoting United

States v. Marin, 7 F.3d 679, 688 (7th

Cir. 1993)) (citation omitted). "[I]t is

not our role, when reviewing the

sufficiency of the evidence, to secondguess a jury’s credibility

determinations." United States v. McGee,

189 F.3d 626, 630 (7th Cir. 1999).

Therefore, "’absent extraordinary

circumstances,’ this court will not

reevaluate the testimony of a witness to

determine his or her motives or other

possible measures of reliability." United

States v. Dunigan, 884 F.2d 1010, 1013

(7th Cir. 1989) (citation omitted).

 There are no circumstances present in
this case which require us to reevaluate

the reliability of the witness testimony

presented by the government at

Buchmeier’s trial. The testimony at trial

repeatedly confirmed Buchmeier’s

acquisition and possession of each of the

firearms listed in the indictment.

Although Buchmeier is correct in noting

that at the time of his trial in January

1998 Haverstock was no longer able to

recall the makes, models, and serial

numbers of the missing firearms, the

record demonstrates that Haverstock knew

which firearms were missing from his

house when he made the inventory of the

missing guns for the police in August of

1994. Haverstock noted that four of the

missing weapons were handguns, and the

rest were rifles and shotguns. Haverstock

used a photograph of his rifles and

shotguns to substantiate the loss of

these firearms. He also referred to the

boxes that several of the firearms had

been in when he originally purchased

them. Witness testimony describing the

firearms Schroeder removed from

Haverstock’s house matched Haverstock’s

written description of the firearms that

were stolen from his house. Additionally,

multiple witnesses placed the firearms

taken by Schroeder in Buchmeier’s

possession. Further testimony also

indicated that Buchmeier knew these

firearms were stolen and that he sold or

intended to sell the majority of these

stolen firearms. We find, therefore, that

the evidence presented against Buchmeier

was sufficient to support a guilty jury

verdict for any of the firearms listed in

the indictment.

B. Buchmeier’s Motion to Dismiss the

Indictment on Duplicity Grounds

 Prior to the commencement of his trial,

Buchmeier moved to have Counts I, III,

IV, and VI of the indictment dismissed,

arguing that they were impermissibly

duplicitous. The district court denied

the motion, finding that "the

government’s decision to charge Buchmeier

in four counts rather than in twenty

counts was reasonable and not

prejudicially duplicitous." United States

v. Buchmeier, No. 97 CR 82-01, 1997 WL

695678, at *2 (N.D. Ill. Nov. 4, 1997).

Buchmeier now appeals the district

court’s decision. 

 "’Duplicity’ is the joining of two or
more offenses in a single count." United

States v. Marshall, 75 F.3d 1097, 1111

(7th Cir. 1996). We have explained that

"the prohibition of duplicitous counts is

embodied in Rule 8(a) of the Federal

Rules of Criminal Procedure, which

provides for ’a separate count for each offense.’"

United States v. Berardi, 675 F.2d 894,

897 n.5 (7th Cir. 1982). However, an

indictment charging multiple acts in the

same count, each of which could be

charged as a separate offense, may not be

duplicitous where these acts comprise a

continuing course of conduct that

constitutes a single offense. See id. at

898.

 Buchmeier contends that sec. 922(g)(1)

and sec. 922(j) both contemplate a

violation to include the possession of a

single firearm. Because the counts

against him included multiple firearms,

Buchmeier asserts that they each

encompass more than one offense and are

therefore impermissibly duplicitous. 

 In order to address Buchmeier’s argument

we must determine Congress’ intended unit

of prosecution for these subsections.

Section 922(g)(1) prohibits a convicted

felon from "possess[ing] . . . any

firearm" that has traveled in interstate

commerce. Likewise, sec. 922(j) makes it

"unlawful for any person to receive . . .

any stolen firearm" that has traveled in

interstate commerce. Although the use of

the word "any" in these subsections

creates "[u]ncertainty as to the unit of

prosecution intended by Congress," United

States v. Cunningham, 145 F.3d 1385, 1398

(D.C. Cir. 1998), this court has found

guidance for interpreting such statutes

in the Supreme Court’s decision in Bell

v. United States, 349 U.S. 81, 75 S. Ct.

620, 99 L. Ed. 905 (1955). See McFarland

v. Pickett, 469 F.2d 1277 (7th Cir.

1972); United States v. Oliver, 683 F.2d

224 (7th Cir. 1982). In Bell, the Supreme

Court reviewed a provision of the Mann

Act, 18 U.S.C. sec. 2421, which explained

that "’[w]hoever knowingly transports in

interstate or foreign commerce . . . any

woman or girl for the purpose of

prostitution or debauchery, or for any

other immoral purpose. . . . Shall be

fined not more than $5,000 or imprisoned

not more than five years, or both.’" 349

U.S. at 82 (quoting 18 U.S.C. sec. 2421).

The Court addressed the question of

whether an individual who admitted to
transporting two women in the same car on

the same trip for purposes prohibited by

sec. 2421 had committed one or two

violations of that section. See id. at

82-83. Finding there to be no clear

congressional expression of a desired

unit of prosecution, the Court found that

the defendant should only have been

charged with one violation. See id. at

83. The Court explained that when

"Congress does not fix the punishment for

a federal offense clearly and without

ambiguity, doubt will be resolved against

turning a single transaction into

multiple offenses." Id. at 84. 

 Relying on the Court’s reasoning in

Bell, this court evaluated the language

of sec. 922(j) in McFarland v. Pickett,

469 F.2d 1277 (7th Cir. 1972)./1 The

question in McFarland was whether a

defendant who was found with two stolen

firearms could be charged with a separate

count for each firearm in his possession.

See 469 F.2d at 1278. Unable to discern

any clear congressional intent as to the

desired unit of prosecution from the

language "any stolen firearm or stolen

ammunition," this court concluded that

the government could not charge McFarland

with separate counts of concealing and

storing stolen firearms in violation of

sec. 922(j) for each of the firearms

found in his possession when "there [wa]s

no evidence to show whether the two

firearms were stored at the same or

different locations or whether they were

acquired at the same or different times."

469 F.2d at 1279. 

 Subsequent to McFarland, in United

States v. Oliver, 683 F.2d 224 (7th Cir.

1982), this court reviewed the

predecessor to the current version of

sec. 922(g)(1), at that time 18 U.S.C.

sec. 922(h),/2 and again found

Congress’ intended unit of prosecution to

be unclear. 683 F.2d at 232-33.

Therefore, we relied on Bell and

McFarland to conclude that a convicted

felon found to be in possession of both a

firearm and ammunition could only be

charged with one violation of sec. 922(h)

if the government "could not show that

the ammunition and revolver were acquired

at different times." Id. at 232; see also

United States v. Calhoun, 510 F.2d 861,

869 (7th Cir. 1975) (finding that under

18 U.S.C. sec. 1202(a), "absent a showing

that two firearms were stored or acquired
at different times or places, there is

only one offense, not two"). 

 These decisions indicate that this

court, like every other circuit court,

has been unable to clearly determine Con

gress’ intended unit of prosecution for

these subsections. We have thus

determined that when a defendant’s

possession of multiple firearms is

simultaneous and undifferentiated, the

government may only charge that defendant

with one violation of sec. 922(g)(1) and

sec. 922(j), regardless of the actual

quantity of firearms involved. See

McFarland, 469 F.2d at 1278; Oliver, 683

F.2d at 232-33; see also United States v.

Verrecchia, 196 F.3d 294, 298 (1st Cir.

1999) ("[T]he simultaneous possession by

a felon of multiple firearms, that is,

possession of multiple firearms in one

place at one time, is only one violation

of sec. 922(g)(1)."); accord United

States v. Pelusio, 725 F.2d 161, 168-69

(2d Cir. 1983) (construing sec.

922(g)(1)’s predecessor sec. 922(h));

United States v. Frankenberry, 696 F.2d

239, 244-45 (3d Cir. 1982) (construing

sec. 922(h)); United States v. Dunford,

148 F.3d 385, 390 (4th Cir. 1998); United

States v. Hodges, 628 F.2d 350, 352 (5th

Cir. 1980) (construing sec. 922(h) and

sec. 18 U.S.C. 1202(a)); United States v.

Adams, 214 F.3d 724, 728 (6th Cir. 2000);

United States v. Kinsley, 518 F.2d 665,

668-70 (8th Cir. 1975) (construing sec.

18 U.S.C. 1202(a)(1)); United States v.

Szalkiewicz, 944 F.2d 653, 654 (9th Cir.

1991); United States v. Valentine, 706

F.2d 282, 292-94 (10th Cir. 1983)

(construing sec. 922(h)); United States

v. Bonavia, 927 F.2d 565, 568-69 (11th

Cir. 1991); United States v. Cunningham,

145 F.3d 1385, 1398 (D.C. Cir. 1998).

 Thus, under sec. 922(g)(1), a convicted

felon is seemingly punished for each

transaction or acquisition by which

heattempts to arm himself unlawfully.

Likewise, under sec. 922(j), an

individual is punished for each separate

transaction involving stolen firearms.

Therefore, these decisions also suggest

that the government may charge an

individual with multiple violations of

either sec. 922(g)(1) or sec. 922(j)

where it can produce evidence

demonstrating that the firearms were

stored or acquired separately and at

different times or places. See McFarland,
469 F.2d at 1279; Oliver, 683 F.2d at

232-33; see also United States v. Keen,

96 F.3d 425, 431 n.11 (9th Cir. 1996)

("Guns that are acquired at different

times or stored in separate places permit

separate punishment to be imposed for

each violation of sec. 922(g).");

Cunningham, 145 F.3d at 1398 ("When a

felon possesses multiple weapons, only

one offense is committed unless the

weapons are stored or acquired at

different times or places."). But see

United States v. Valentine, 706 F.2d 282,

294 (10th Cir. 1983) (reserving the issue

of whether "sec. 922(h) . . . should be

construed to support multiple convictions

because separate times of receipt and

possession are shown").

 Turning to the facts of this case, we

find that the government properly limited

the charges it filed against Buchmeier

for the firearms he acquired from

Schroeder on August 6, 1994. The

government charged Buchmeier with having

committed one violation of sec. 922(g)(1)

(Count IV) and one violation of sec.

922(j) (Count VI) on August 6, listing

all seven firearms involved in this

transaction in these two counts. Because

these firearms were simultaneously

acquired and received by Buchmeier, any

attempt to charge him with more than one

violation of either sec. 922(g)(1) or

sec. 922(j) for these seven firearms

would have been multiplicitous. 

 The closer question, however, is whether

the government’s decision to charge

Buchmeier with one count of violating

sec. 922(g)(1) (Count I) and one count of

violating sec. 922(j) (Count III) for the

stolen firearms he acquired from

Schroeder through the two transactions on

August 5 resulted in these counts being

duplicitous. Throughout this case the

government has repeatedly described the

interactions between Schroeder and

Buchmeier as three separate acquisitions

of stolen firearms in which Buchmeier, a

convicted felon, attempted to arm himself

unlawfully. The evidence supports this

characterization. Thus, we find that the

government could have charged Buchmeier

with three separate counts of both sec.

922(g)(1) and sec. 922(j). Of course,

just because we find that the facts of

this case permitted the government to

charge Buchmeier with three sets of

counts, one for each transaction, does
not mean that it was required to do so.

See United States v. Hammen, 977 F.2d

379, 383 (7th Cir. 1992) (explaining that

although each count of conviction for

committing bank fraud in violation of 18

U.S.C. sec. 1344 requires the execution

of some act in furtherance of a scheme,

"the law does not require the converse:

each execution need not give rise to a

charge in the indictment"). However, once

the government chose to charge Buchmeier

with acquiring and receiving all ten

firearms, we find that it was required to

either charge him with one violation of

sec. 922(g)(1) and sec. 922(j), by way of

a continuing course of conduct, or with

three separate violations of sec.

922(g)(1) and sec. 922(j), in order to

avoid formulating either a duplicitous or

multiplicitous indictment. Therefore, we

do not think the government’s decision to

combine the two August 5 transactions

into the same two counts of the

indictment was proper. 

 The government has argued that the

indictment is not duplicitous because the

multiple acts charged in each count were

part of a continuing course of conduct.

In support of this argument the

government asserts that the three

transactions taken together could be seen

as a continuing course of conduct because

the same persons were involved in the

same action over the course of a

relatively short period of time. As

alluded to above and as we further

explain below, we agree that Buchmeier

could have been charged with one

continuing violation. However, the

government’s reliance on this argument is

misplaced in light of the manner in which

it chose to charge Buchmeier. 

 In United States v. Berardi, 675 F.2d

894 (7th Cir. 1982), the defendant was

charged with multiple counts, including

one count of obstruction of justice in

violation of 18 U.S.C. sec. 1503. 675

F.2d at 897. Although sec. 1503 only

requires one discrete act for a

violation,/3 this count "described three

epi-sodes in which Berardi was alleged to

have furthered this endeavor." Id. While

this court acknowledged that each episode

listed in the count could have

constituted a separate violation and

therefore a separate count in the

indictment, we observed that "[t]he three

alleged acts of obstruction occurred
within a relatively short period of time,

werecommitted by one defendant, involved

a single witness, and were in furtherance

of [the] solitary object of influencing

[a witness] not to reveal [information]

to the grand jury." Id. at 898. Thus,

finding that "the indictment, fairly

interpreted, charge[d] Berardi with a

continuing course of conduct, during a

discrete period of time, to influence"

one witness’s grand jury testimony, we

concluded that these acts constituted one

violation of sec. 1503, and therefore,

the count was not prejudicially

duplicitous. Id. at 898, 899.

 Unlike the indictment in Berardi, the

indictment in this case did not charge

Buchmeier with one continuing course of

conduct. Instead, the government chose to

divide the three transactions and the

firearms involved in each of these

transactions based on the day that each

of the transactions took place; one count

included the two transactions on August

5, 1994, and another count dealt with the

one transaction that took place on August

6, 1994. Thus, we are left wondering why

the government broke up this alleged

course of conduct into two separate

counts if it truly wished to rely on our

analysis in cases like Berardi.

Ironically, the facts of this case

provide substantial support for the

government’s argument that the three

interactions between Buchmeier and

Schroeder could reasonably be

characterized as a continuing course of

conduct. The three meetings took place

over a very short period of time, less

than forty-eight hours, they involved the

same activity between the same two

parties, and there was only one instance

of payment, which took place after the

third and final interaction. However, the

government’s decision to charge Buchmeier

with multiple counts of each violation

renders it unable to successfully assert

this argument in defense of the

indictment. Therefore, we set aside the

government’s proffered argument.

 Having concluded that Counts I and III

are duplicitous, we must now determine if

this error affected the fairness of

Buchmeier’s trial. See United States v.

Tanner, 471 F.2d 128, 139 (7th Cir. 1972)

("The duplicity of Count III would not

require a dismissal if it were shown to

constitute ’harmless error’ under Rule
52(a)."); see also United States v.

Kimberlin, 781 F.2d 1247, 1250 (7th Cir.

1985). "’The overall vice of duplicity is

that the jury cannot in a general verdict

render its finding on each offense,

making it difficult to determine whether

a conviction rests on only one of the

offenses or both.’" United States v.

Marshall, 75 F.3d 1097, 1111 (7th Cir.

1996) (quoting United States v.

Blandford, 33 F.3d 685, 699 n.17 (6th

Cir. 1994)). Additionally, we have

explained that a duplicitous indictment

may expose a defendant to other adverse

effects including "improper notice of the

charges against him, prejudice in the

shaping of evidentiary rulings, in

sentencing, in limiting review on appeal,

in exposure to double jeopardy, and of

course the danger that a conviction will

result from less than a unanimous verdict

as to each separate offense." Id.; see

also Kimberlin, 781 F.2d at 1250;

Berardi, 675 F.2d at 899. 

 In United States v. Marshall, 75 F.3d

1097 (7th Cir. 1996), we upheld an

indictment containing a count that

included "arguably separate and distinct"

offenses. Id. at 1112. Our conclusion

that the indictment was not fatally

flawed rested in large part on the fact

that the district court had avoided

prejudicing the defendant by instructing

the jury that it was required to

unanimously agree as to which of the

offenses included in the disputed count

the defendant had committed. See id.; see

also United States v. Cherif, 943 F.2d

692, 701 (7th Cir. 1991) (explaining that

the possibility that the defendant was

convicted by a less than unanimous jury--

where a count of the indictment listed

two unlawful acts in the same count--

could have been eliminated by an

instruction requiring the jury to

unanimously agree as to which act the

defendant was guilty of committing);

accord United States v. Nattier, 127 F.3d

655, 657 (8th Cir. 1997) ("The risk

inherent in a duplicitous count . . . may

be cured by a limiting instruction

requiring the jury to unanimously find

the defendant guilty of at least one

distinct act."); United States v.

Trammell, 133 F.3d 1343, 1354-55 (10th

Cir. 1998) ("’One cure for an otherwise

duplicitous indictment is to give an

augmented instruction requiring unanimity

on one or the other of the acts charged
within a count that otherwise appear to

constitute separate offenses.’")

(citation omitted). Referring to all four

counts against Buchmeier, the district

court explained to the jury that: 

[i]n order to return a verdict of guilty

on any one count, you must find that the

defendant possessed at least one of the

firearms listed in that count, and you

must unanimously agree as to which

particular firearm or firearms listed in

that count the defendant possessed. If

you cannot agree in that manner, you must

find the defendant not guilty of that

count. 

Because the jury received this specific

instruction, Buchmeier can be assured

that the decision to convict him on

Counts I and III was the result of a

unanimous verdict. Additionally, the

other adverse effects that can result

from a duplicitous indictment have not

occurred in this case: the specificity of

the counts properly notified Buchmeier of

the charges against him; he was not

subjected to any prejudicial evidentiary

rulings during the course of his trial;

the review he has sought on appeal has

not been limited by the duplicitous

counts; he was not prejudiced in

sentencing as his sentence of 188 months

was the low end of the applicable range

of sentences given his status as an armed

career criminal; and he faces no risk of

double jeopardy because the government

has conceded that he cannot again be

charged for any of the firearms listed in

the indictment. Because Buchmeier was not

prejudiced by the duplicitous counts of

the indictment and none of the concerns

that can arise with a duplicitous

indictment have been implicated in this

case, we find that the government’s

improper formulation of the indictment

was harmless error. Therefore, we will

affirm Buchmeier’s conviction on these

counts.

C. Buchmeier’s Theory of Defense Jury

Instruction

 Buchmeier also challenges the district

court’s refusal to submit his theory of

defense instruction to the jury. At the

end of Buchmeier’s trial his counsel

proposed the following theory of defense

instruction:
 The defendant’s mere association with

those who may have possessed firearms is

insufficient to show possession or

constructive possession. 

 The defendant’s possession or

constructive possession is not

established by the defendant having

played the role of a finder or broker, or

by the defendant having brought a buyer

and seller together.

The government objected to this proposed

instruction, arguing that neither the

constructive possession language nor the

mere association language were

appropriate based on the evidence in the

case. The district court refused to

submit the proposed instruction to the

jury, over Buchmeier’s objections,

finding that there was an insufficient

evidentiary record to support such an

instruction.

 Because Buchmeier properly objected at

trial to the district court’s ruling, we

review the district court’s decision not

to instruct the jury on his theory of

defense de novo. See United States v.

Irorere, 228 F.3d 816, 825 (7th Cir.

2000). With regard to a defendant’s right

to have his or her theory of defense

instruction submitted to the jury, this

Court has explained that 

a defendant is entitled to a jury

instruction as to his or her particular

theory of defense provided: "(1) the

instruction represents an accurate

statement of the law; (2) the instruction

reflects a theory that is supported by

the evidence; (3) the instruction

reflects a theory which is not already

part of the charge; and (4) the failure

to include the instruction would deny the

appellant a fair trial."

United States v. Swanquist, 161 F.3d

1064, 1075 (7th Cir. 1998) (quoting

United States v. Edwards, 36 F.3d 639,

645 (7th Cir. 1994)). Buchmeier now

contends that his theory of defense

instruction met these requirements, and

therefore, the district court erroneously

denied his proposed instruction. He

further argues that the court’s error

denied him a fair trial because his

counsel had specifically relied on this

theory of defense in his opening

statement and throughout the entire trial
only to have it precluded prior to the

jury deliberating. The government

concedes that the instruction Buchmeier

presented to the court was an accurate

statement of the law. It contends,

however, that the district court properly

concluded that there was no factual

support in the record to justify the

instruction. The government argues that

the evidence at trial showed that

Buchmeier’s interaction with Schroeder

was much more than a "mere association

with those who may have possessed

firearms." Additionally, the government

asserts that there is no evidence in the

record that Buchmeier "played the role of

a finder and broker of firearms," or that

he "brought a buyer and seller together."

 While a defendant’s theory of defense

need only have "some foundation in the

evidence, however tenuous," Irorere, 228

F.3d at 825 (citations omitted), we find

that the district court correctly

concluded that there was no evidence

presented at Buchmeier’s trial that

supported his proposed theory of defense

instruction. At oral argument,

Buchmeier’s counsel explained that there

was only a "scintilla of evidence" in the

record supporting the notion that

Buchmeier "played the role of a finder or

broker" of firearms. Although our review

of the record indicates that even this

description is a generous

characterization of the evidence, we

agree with the Ninth Circuit that "’[a]

’mere scintilla’ of evidence supporting a

defendant’s theory . . . is not

sufficient to warrant a defense instruction.’"

United States v. Wofford, 122 F.3d 787,

789 (9th Cir. 1997) (quoting United

States v. Morton, 999 F.2d 435, 437 (9th

Cir. 1993)). There is likewise no

evidence in the record to support the

idea that Buchmeier’s interaction with

Schroeder and the other individuals

mentioned above was a "mere association

with those who may have possessed

firearms." Thus, the district court

properly refused to submit Buchmeier’s

proposed theory of defense instruction to

the jury. 

D. Buchmeier’s Request for Special

Interrogatories

 Buchmeier’s final argument on appeal

contests the district court’s denial of

his request that special interrogatory
verdicts be submitted to the jury for

each firearm listed in the indictment. He

claims that these special interrogatory

verdicts were needed because each firearm

charged is a separate element of a

separate crime. Thus, Buchmeier argues

that the jury should have been required

to find him guilty beyond a reasonable

doubt for each firearm. Additionally,

Buchmeier asserts that because the

special interrogatory verdicts were not

submitted to the jury, he is unable to

determine which firearm he was convicted

of possessing and receiving. This result,

he contends, is so manifestly unfair that

it violates the Constitution’s notions of

due process and fundamental fairness. We

do not agree.

 The Supreme Court has explained that "a

jury in a federal criminal case cannot

convict unless it unanimously finds that

the Government has proven each element"

of a crime. Richardson v. United States,

526 U.S. 813, 817, 119 S. Ct. 1707, 143

L. Ed. 2d (1999). Given our

discussionregarding the appropriate unit

of prosecution for sec. 922(g)(1) and

sec. 922(j), we conclude that the

district court correctly instructed the

jury that it only needed to find that

Buchmeier had possessed or received,

depending on the charge, one of the

firearms listed in each count in order to

satisfy the elements of those violations.

As we have explained, the focus of these

provisions is upon the individual

defendant and the actions taken by the

defendant to acquire firearms. A

convicted felon is to be prosecuted under

sec. 922(g)(1) not for the number of

firearms he possesses, but instead for

each transaction or acquisition by which

that defendant has attempted to arm

himself. See, e.g., United States v.

Oliver, 683 F.2d 224, 232-33 (7th Cir.

1982); see also United States v. Jester,

139 F.3d 1168, 1171 (7th Cir. 1998)

("Congress enacted sec. 922(g)(1) in

order to keep firearms out of the hands

of those persons whose prior conduct

indicated a heightened proclivity for

using firearms to threaten community

peace and the ’continued and effective

operation of the Government of the United

States.’") (citation omitted). Likewise,

a defendant receiving stolen firearms is

to be prosecuted under sec. 922(j) not

for each of the stolen firearms that the

defendant receives in a single
transaction, but instead for each

transaction or instance by which that

defendant receives another stolen firearm

or group of stolen firearms. See, e.g.,

McFarland v. Pickett, 469 F.2d 1277,

1278-79 (7th Cir. 1972). Thus, it is

sufficient in this case that the jury was

required to unanimously find that

Buchmeier possessed one of the firearms

listed in each of the counts of the

indictment against Buchmeier./4

 Buchmeier is correct in noting that the

jury’s verdict form did not inform him

as to the specific firearms the jury

found him to have possessed. Indeed, this

general verdict required us to evaluate

the sufficiency of the evidence for each

firearm listed in the indictment when

reviewing Buchmeier’s claim that the

evidence was insufficient to support his

conviction. We also recognize the

possibility of a situation where a

defendant is convicted of one count of

violating sec. 922(g)(1) but that such a

large number of firearms are listed in

the count that the defendant’s inability

to know which firearms he was convicted

of having possessed creates such a burden

on that defendant’s ability to appeal his

conviction that it would be problematic.

However, we do not find such a situation

in this case. Only three firearms were

listed in Counts I and III, and seven

firearms were listed in Counts IV and VI.

Furthermore, the evidence presented at

trial indicated that Buchmeier acquired

these firearms in groups, through three

transactions, further enabling Buchmeier

to focus his efforts in challenging his

conviction on appeal. Finally, the

evidence indicating Buchmeier possessed

these firearms came from a limited number

of sources, primarily four witnesses, as

is demonstrated by his challenge in this

appeal to the sufficiency of the

evidence. Therefore, Buchmeier’s

inability to know which firearms the jury

found him to have possessed does not

violate constitutional notions of due

process.

III. Conclusion

 For the aforementioned reasons, we AFFIRM

Buchmeier’s conviction on all counts of

the indictment.

FOOTNOTES
/1 Varying only slightly from the current version,

the version of sec. 922(j) reviewed by the court

also made it unlawful for any person to "receive,

conceal, store, barter, sell, or dispose of any

stolen firearm or stolen ammunition, . . . which

is a part of . . . interstate or foreign commerce, knowing or having reasonable cause to

believe that the firearm or ammunition was stolen." McFarland, 469 F.2d at 1278.

/2 Section 922(h) prohibited "any person (1) . . .

who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding

one year; . . . to receive any firearm or ammunition which has been shipped or transported in

interstate or foreign commerce." Oliver, 683 F.2d

at 232.

/3 At that time, sec. 1503 explained that:

Whoever corruptly, or by threats or force, or by

any threatening letter or communication, endeavors to influence, intimidate, or impede any

witness, in any court of the United States or

before any United States commissioner or other

committing magistrate, or any grand or petit

juror, or officer in or of any court of the

United States, . . . in the discharge of his

duty, . . . or corruptly or by threats of force,

or by any threatening letter or communication,

influences, obstructs, or impedes, or endeavors

to influence, obstruct, or impede, the due administration of justice, shall be fined not more

than $5,000 or imprisoned not more than five

years, or both.

Berardi, 675 F.2d at 897 n.3.

/4 Because the district court instructed the jury

that it was required to unanimously agree as to

which particular firearm Buchmeier acquired or

received with regard to each count, we need not

reach the issue of whether it would have been

sufficient for the jury to have simply agreed

that Buchmeier possessed at least one of the

firearms listed in each count without agreeing

which particular firearm he possessed. See United

States v. Verrecchia, 196 F.3d 294, 298-301 (1st

Cir. 1999) (holding that because a jury need only

agree that a defendant possessed "a" firearm in

order to find a defendant guilty of violating

sec. 922(g)(1), a unanimity instruction was not

required where defendant was charged with one

count of violating sec. 922(g)(1) and multiple

firearms were listed in that count).