In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2956
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
W ILLIAM D INGA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-CR-122—Barbara B. Crabb, Judge.
A RGUED A PRIL 9, 2010—D ECIDED JULY 6, 2010
Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. William Dinga bought several
firearms in March and April 2008 which attracted the
attention of the Bureau of Alcohol, Tobacco, Firearms
and Explosives. Because he lied about these purchases,
Dinga was charged and convicted of making a false
statement to a federal law enforcement officer, in viola-
tion of 18 U.S.C. § 1001. He now challenges the suf-
ficiency of the evidence against him, an evidentiary
ruling excluding his offer to take a polygraph, and the
2 No. 09-2956
district court’s imposition of an obstruction of justice
enhancement at sentencing. Because the evidence is
sufficient to uphold his conviction, the evidentiary chal-
lenge is without merit, and the sentencing enhance-
ment was properly applied, we affirm both his conviction
and sentence.
I. BACKGROUND
On March 6, 2008, William Dinga and a friend went
to Big River Sports in Adams, Wisconsin and purchased
two firearms with cash. Dinga filled out the necessary
forms required by the Bureau of Alcohol, Tobacco, Fire-
arms and Explosives (“ATF”). After waiting the man-
datory forty-eight hours, Dinga returned to Big River
Sports on March 8, 2008 and picked up the guns. He also
purchased three more guns and a magazine for a nine-
millimeter handgun, again with cash. Dinga returned yet
again on April 9, 2008 to purchase six more firearms.
Suspicious of this activity, Big River Sports’ owner called
ATF about the multiple firearm sales to the same person.
That same day, ATF agent Jason Salerno arranged to
interview Dinga on the telephone with the help of the
local sheriff’s department.
During the April 9 interview, Dinga told a series of
stories to Agent Salerno before settling on a final explana-
tion that the firearms purchased in March were stolen.
Dinga first told Agent Salerno that the firearms were
at home in Minneapolis, and then said they were at his
girlfriend’s house. Dinga also explained that he had
been approached by someone who asked him to buy the
No. 09-2956 3
guns for him, but he was too scared to reveal that
person’s identity. When Agent Salerno informed Dinga
that it was a crime to purchase firearms for others, Dinga
finally claimed he would tell the complete truth. Dinga
stated that the guns were purchased for his own use.
He said that the guns bought on March 6 and March 8
had been stolen out of the backseat of his unlocked car
while he was playing basketball with friends the same
night he picked them up from the store. Dinga said he
left them in the backseat, and not the trunk, because
there were large stereo speakers in the trunk and he
would have had to work to get the guns in there. He said
he did not bring the firearms to his house because the
front door to his house was broken, and he did not
believe there was a good hiding place in the house. Dinga
also admitted that he never reported the stolen firearms
to the police, and that the six additional handguns pur-
chased on April 9 were to replace the ones that had
been stolen.
Dinga stuck to this story, and Agent Salerno asked
Dinga to take a polygraph test to see if Dinga was telling
the truth. Dinga asked, “Don’t you have to get a court
order for that?” to which Agent Salerno replied he did
not, and he continued to press Dinga about taking the
examination. Eventually, in response to Agent Salerno’s
insistence that Dinga set a time on Tuesday for the
exam, Dinga replied, “[A]nytime Tuesday.” But no poly-
graph test was ever conducted.
The superseding indictment charged Dinga with three
counts of knowingly making a false statement with
4 No. 09-2956
respect to information required to be kept by a fed-
erally licensed firearms dealer, in violation of 18 U.S.C.
§ 924(a)(1)(A), and one count of knowingly and willfully
making a false material statement to a federal agent
in a matter within that agency’s jurisdiction, in violation
of 18 U.S.C. § 1001. The first three counts concerned
Dinga’s written statements that he was the actual buyer
of the firearms purchased on March 6 and 8, 2008 and
April 9, 2008 on ATF Form 4473, a firearms transaction
record. In court four, Dinga was charged with falsely
telling Agent Salerno that the firearms purchased on
March 8, 2008 were for himself and that they had been
stolen. The jury acquitted Dinga of the first three counts
of the indictment but found Dinga guilty of making a
false material statement to Agent Salerno.
II. ANALYSIS
A. Sufficiency of the Evidence
Ordinarily, we review sufficiency of the evidence chal-
lenges in the light most favorable to the government and
reverse only if no reasonable factfinder could find the
defendant guilty beyond a reasonable doubt. United
States v. Morris, 576 F.3d 661, 665 (7th Cir. 2009). A defen-
dant posing this challenge “faces a nearly insurmountable
hurdle.” Id. Dinga faces an additional hurdle because
he has forfeited his challenge by not renewing his
motion for judgment of acquittal at the close of evidence
or within seven days of the verdict as required by Fed. R.
Crim. P. 29, and so we will only reverse his conviction if
we find a manifest miscarriage of justice under the plain
No. 09-2956 5
error standard of review. United States v. Taylor, 226
F.3d 595, 596 (7th Cir. 2000).
Dinga was charged with making a false statement to a
federal law enforcement officer. To convict Dinga of
this crime, the government needed to prove that Dinga
willingly and knowingly made a statement that was
false and material, and that the statement concerned a
matter within the jurisdiction of a federal agency.
18 U.S.C. § 1001. Dinga insists that he bought the guns for
self-use but that he no longer has them because the guns
were stolen from his car. He argues the government
cannot disprove this story because it is true, and the
evidence that he did not buy the guns for self-use was
circumstantial. But, a “verdict may be rational even if it
relies solely on circumstantial evidence.” United States
v. Moore, 572 F.3d 334, 337 (7th Cir. 2009). The govern-
ment’s theory of the case was that Dinga no longer pos-
sessed the firearms on the date of the ATF interview
because he bought them to sell or give to someone
else. Although it would have strengthened the govern-
ment’s argument to introduce the recovered firearms or
witness testimony that Dinga had given the firearms
to others, this evidence was not necessary.
The government introduced evidence of Dinga’s be-
havior during and after the purchase of firearms and
the conflicting stories he initially told the federal agent.
Dinga testified to his version of events. Documents
showed that Dinga had very little money in his bank
account before his purchase of the firearms, had worked
only a few days in the months before the purchase, and
6 No. 09-2956
had no experience with firearms. Dinga testified that
he had lied to Agent Salerno about many facts such as
missing his driver’s license, being approached by some-
one to purchase firearms, and the firearms being at his
girlfriend’s house. Nonetheless, he insisted that the truth
was that the guns were stolen out of his car. Dinga ac-
knowledged that he reported a missing wallet to the
police on April 8, 2008 but did not report the alleged
theft of firearms that cost over $800. He only reported
them missing to the police on April 11, 2008, after his
phone interview with Agent Salerno. Based on this evi-
dence, a rational juror could have found that Dinga lied
to the federal agent about why he bought the guns
and what he did with the guns.
Dinga also argues that the guilty verdict on this count
of the indictment is impossible to square with the
overall jury verdict. The jury acquitted Dinga of the
first three counts of the indictment, which charged Dinga
with lying on three different dates on ATF forms when
purchasing guns at Big River Sports. Dinga reasons that
if the jury believed he told the truth on the ATF forms
when he stated that he bought the guns for self-use, it
could not then have believed he lied when he told the
ATF agent that he had bought them for self-use and
they were subsequently stolen. This is not necessarily
inconsistent—a jury may have believed that Dinga
initially bought them for self-use but then lied about
what happened after he left the store. But, even accepting
Dinga’s argument that the verdicts are inconsistent, any
claim based on inconsistency of the verdicts fails. Each
count of an indictment is treated as if it were a separate
No. 09-2956 7
charge and any inconsistency does not warrant rever-
sal. United States v. Anderson, 517 F.3d 953, 960 (7th Cir.
2008).
B. Exclusion of Polygraph-Related Evidence
Dinga also challenges the district court’s exclusion of
his offer to take a polygraph test. We review evidentiary
rulings for an abuse of discretion and give district courts
great latitude in deciding whether to admit or exclude
evidence relating to polygraphs. United States v. Beyer,
106 F.3d 175, 176 (7th Cir. 1997). We will only disturb
a district court’s evidentiary ruling if no reasonable
person could agree with the ruling. United States v. Toro,
359 F.3d 879, 884-85 (7th Cir. 2004).
Dinga argues that he should have been allowed to
introduce evidence of his “offer” to take the polygraph
test as evidence probative of his mental state. Most
courts, including ours, have been wary of this type of self-
serving evidence. Beyer, 106 F.3d at 176; United States
v. Bursten, 560 F.2d 779, 785 (7th Cir. 1977) (offer of a
willingness to submit to a polygraph “is so unreliable
and self-serving as to be devoid of probative value.”).
Dinga argues that his offer is relevant to his conscious-
ness of innocence and credibility, and that it is especially
probative in a case dependent on his credibility. Dinga
emphasizes that he was not in custody during his
phone interview with Agent Salerno and had not yet
talked to an attorney about the investigation. He also
maintains that his was a genuine offer, made without
knowledge that the results of any such exam might not
8 No. 09-2956
be admissible in court. The government counters that
Dinga’s characterization of the exchange as an “offer” is
farfetched. The district court agreed, observing that Agent
Salerno initiated and pushed the idea of taking the poly-
graph test and Dinga’s “offer” that he was available
“anytime Tuesday” to take a test seemed reluctant. The
court excluded the evidence because it viewed the
“offer” as Dinga being backed into a corner until, as a
last resort, he agreed to take a test because he felt that
he had no better options.
The district court was well within its discretion to
exclude this evidence. There has long been a debate
over the admissibility of polygraph testing results, par-
ticularly considering the concerns about the reliability
of such testing and the possibilities of misleading and
confusing the issues for a jury. Beyer, 106 F.3d at 176. As a
general matter, the same is true of offers to take poly-
graph tests. Bursten, 560 F.2d at 785; see also United States
v. Harris, 9 F.3d 493, 502 (6th Cir. 1993). A juror, having
little understanding of the admissibility or reliability of
any subsequent results, may erroneously believe that
any offer necessarily meant Dinga was innocent. More
importantly, Dinga’s offer to take a test would only be
only marginally probative as to his credibility. Absent
an agreement that polygraph results (favorable or not)
would be admissible in court, Dinga had little at stake
by expressing his willingness to submit to a poly-
graph test. No test was ever taken, and there is no way
of knowing what Dinga knew about the subsequent
admissibility of any such test results. He may have be-
No. 09-2956 9
lieved that the test would be taken and the results would
be admissible, or he may have known that he would
never submit to a test, or he may have believed that
any results would be inadmissible in court. The great
potential of confusing the issues and misleading the
jury substantially outweighed any probative value of the
offer as to Dinga’s credibility. The district court’s deci-
sion to exclude Dinga’s “offer” to take a polygraph test
was not an abuse of discretion.
C. Obstruction of Justice Sentencing Enhancement
Finally, Dinga argues that there was insufficient evi-
dence for the district court to apply a two-level sen-
tencing enhancement for obstruction of justice. See
U.S.S.G. § 3C1.1 (2009). We review a district court’s
factual findings supporting a sentencing enhancement
for clear error, United States v. Bermea-Boone, 563 F.3d 621,
636 (7th Cir. 2009), and only reverse if a review of the
evidence leaves us “firmly convinced” that a mistake
has been made, United States v. Orozco-Vasquez, 469
F.3d 1101, 1107 (7th Cir. 2006). Perjury is an example of
conduct warranting the obstruction. United States v.
Gonzalez-Mendoza, 584 F.3d 726, 730 (7th Cir. 2009). A
witness commits perjury if, while under oath, he “gives
false testimony concerning a material matter with the
willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory.”
Bermea-Boone, 563 F.3d at 626-27 (quoting United States
v. Dunnigan, 507 U.S. 87, 94 (1993)).
10 No. 09-2956
The government presented sufficient evidence to estab-
lish that Dinga falsely testified that he was the true pur-
chaser of the firearms but that they were subsequently
stolen. Records indicated that Dinga independently
did not have enough money to make the firearm pur-
chases. Dinga asked the jury to believe that, although he
would not leave the guns, worth hundreds of dollars,
in his three-level house because the front lock was
broken and there were supposedly no good hiding
places, he was willing to leave them in plain view in
the backseat of his unlocked car. When asked why he
had not put them out of sight in the trunk, he testified
that the trunk was too full of stereo equipment to fit
five firearms. To believe this story would require a sig-
nificant stretch of the imagination. A simple denial of
guilt cannot serve as a basis for an obstruction-of-
justice enhancement, but an elaborate mistruth re-
garding material facts of the counts alleged is more than
sufficient to support the enhancement. United States v.
Hickok, 77 F.3d 992, 1007 (7th Cir. 1996). Here, Dinga
took the stand and provided a detailed story as to
why these guns were no longer in his possession. This
testimony was material because it was information
which, if believed, would have influenced the essential
issue under determination. U.S.S.G. § 3C1.1 cmt. n.6
(2009). At sentencing, the court did not clearly err in
making a finding that Dinga and his version of events
were incredible and “preposterous,” and correctly
applied the two-level enhancement for obstruction of
justice.
No. 09-2956 11
III. CONCLUSION
For the reasons expressed above, we A FFIRM Dinga’s
conviction and sentence.
7-6-10