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United States v. Bailey
Citations: 123 F.3d 1381; 1997 U.S. App. LEXIS 26289Docket: 18-11306
Court: Court of Appeals for the Eleventh Circuit; September 24, 1997; Federal Appellate Court
Original Court Document: View Document
The Eleventh Circuit Court of Appeals addressed an appeal by Thomas G. Bailey, a firearms dealer, challenging his conviction for mail fraud, operating a firearms business without a license, and possession of machineguns in violation of 18 U.S.C. 922(o). The court affirmed the conviction based on sufficiency of the evidence, constitutionality of the statute, and alleged prosecutorial misconduct. However, Bailey's sentence was vacated due to being imposed under an incorrect version of the Sentencing Guidelines, and the case was remanded for resentencing. Bailey became a federally licensed firearms dealer in 1986, with specific authority to sell machineguns to law enforcement. Federal regulations require licensed dealers to operate at designated locations, maintain detailed transaction records, obtain ATF approval for certain transactions, and submit to inspections. In 1989, Bailey contracted with Heckler and Koch (H. K.) to act as a law enforcement firearms dealer, with restrictions against stocking weapons for future sale to police. Bailey understood that his contract and federal law prohibited sales of machineguns to civilians and detailed the excise tax implications. In July 1989, Bailey interacted with Wayne Bass, the Acting Chief of Police of Wauchula, Florida, who expressed interest in purchasing assault rifles for his department. Bailey provided a sample authorization letter to Bass that allowed him to order weapons from H. K. for the police department, though Bass was concerned about the letter's open-ended nature, particularly regarding automatic weapons. Chief Bass contacted Bailey to discuss concerns regarding the procurement of weapons for the Wauchula Police Department. Bailey indicated that H. K. wanted the letters of authorization to be open-ended for all H. K. products and suggested that the weapons be shipped directly to him rather than the police department. Chief Bass agreed but emphasized that the department would only be liable for specifically ordered weapons and expressed that their tight budget of approximately $5,000 prioritized other essential equipment over exotic firearms. Despite this, on September 29, 1989, Bailey used the authorization to order $30,000 worth of weapons, including twenty-five assault rifles, falsely claiming they were for the police department. The non-assault weapons were shipped to Bailey, but when H. K. contacted Chief Bass for confirmation of the assault rifle order, he denied any such request, leading H. K. to cancel the shipment. Bailey’s actions resulted in his conviction on mail fraud charges in Counts II through IV of the indictment. In a separate incident in mid-1989, Bailey met Joel Hodges from the Clay County Sheriff’s Department SWAT team, which used H. K. MP5s. Bailey proposed trading new MP5s for old ones and obtained Hodges' agreement. Subsequently, in September 1989, Bailey dictated an open-ended letter of authorization for purchasing weapons on behalf of the Clay County Sheriff's Department, which Hodges signed. Bailey then ordered additional weapons and accessories under this authorization, representing them as requests from the department. H. K. obtained ATF approval for the sale but did not ship the items. Bailey’s actions in this case also led to a conviction on a mail fraud charge in Count V of the indictment. In October 1989, Bailey proposed a trade of two HK MP5s and one HK 33 rifle to the Titusville Police Department for three of its pre-1986 machineguns, requesting an authorization letter for the purchase, which the department provided. Bailey then misrepresented the order to obtain additional weapons worth over $12,000, despite the ATF disapproving the transfer in January 1990. This led to Bailey's conviction for mail fraud in Counts VI and VII. Additionally, on February 15, 1990, Bailey attempted to sell a Colt Thompson submachine gun to Charles Schaaf, falsely claiming it was in 97% condition. Unbeknownst to Schaaf, Bailey had sent the gun for repairs, where it was found to be in very poor condition. Schaaf paid $12,508 for the weapon, which Bailey never delivered, resulting in convictions for mail fraud in Counts X and XI. In another incident, gun collector Philip Parker agreed to purchase an AK-47 from Bailey, who failed to send the necessary ATF transfer forms after receiving Parker's payment of $1,995. Despite Parker’s attempts to communicate and demand a refund, he never received the weapon or his money back. Bailey had later promised to arrange for a dealer-to-dealer transfer but did not fulfill his obligations. On April 22, 1992, the ATF transfer forms were received, leading to Bailey's conviction for mail fraud related to his dealings with Parker, as charged in Counts XII and XIII of the indictment. The ATF's investigation into Bailey's firearms business began in November 1989 after a complaint from Wauchula Police Chief Bass, who reported that Bailey had ordered multiple firearms, including a 9mm pistol (serial number USA906) and twenty-one HK 94 assault rifles, using authorization from the police department. ATF Special Agent Charles Hudson attended a gun show in December 1989, where he confirmed the presence of the 9mm pistol in Bailey's display and was offered it for sale. In February 1990, Bailey attempted to sell twelve HK 94s to dealers Duke McCaa and Khalid Akkawi, despite having ordered them under police authorization. During his grand jury testimony in February 1991, Bailey falsely denied selling or attempting to sell any of the ordered weapons, resulting in his conviction for making a false statement, as outlined in Count XXI of the indictment. The investigation revealed that Bailey's federal firearms licenses listed locations where he did not conduct business. His first license was linked to McCaa’s gun shop, where he had no involvement, and the second to an accounting business owned by Martine Priest, who testified that Bailey misrepresented her address as his own and sought to use it for receiving packages. When Priest requested he stop this misrepresentation, Bailey failed to comply. Consequently, Agent Hudson secured search warrants for Bailey's home, revealing that he was illegally conducting business there. The search uncovered various firearms, ammunition, and documents indicating that Bailey’s actual business operations took place at his home address in Geneva, Florida. At trial, a defense witness testified to purchasing firearms from Bailey at his home, leading to Bailey's conviction for operating an unlicensed firearms business (Count XIV). During a search of Bailey's residence, ATF agents discovered unregistered weapons, including a modified UZI assault rifle, a Colt AR-15 converted to a machinegun, another AR-15 altered with a drop-in autosear, and unregistered flash-bang grenades, resulting in multiple convictions (Counts XV-XVII, XIX-XX). Additionally, Bailey rented a storage locker for firearms and later attempted to conceal ownership by changing the contract name, leading to his conviction for obstructing an official investigation (Count XXII). A search of the locker uncovered further illegal weapons, contributing to his conviction for machinegun possession (Count XVIII). Overall, Bailey was convicted on ten counts, including mail fraud, operating without a license, and possession of unregistered weapons, and was sentenced to time served, three years of supervised release, and restitution. On appeal, he challenges the sufficiency of evidence for his convictions and the constitutionality of the relevant firearm statutes, while the government cross-appeals regarding the sentencing guidelines applied. Challenges to the sufficiency of evidence are reviewed de novo, with the evidence considered in the light most favorable to the government, favoring the jury's verdict. To establish mail fraud, the government must demonstrate that the defendant intentionally participated in a scheme to defraud and utilized the mails to further that scheme. A successful execution of the scheme is not necessary for conviction; proving the existence of the fraudulent scheme suffices. Direct proof of the defendant's intent is not required, as circumstantial evidence can establish criminal intent. In this case, Bailey was charged with defrauding the IRS and H. K. by overstating or fabricating orders for restricted weapons intended for law enforcement. Federal law and his contract stipulated that he could only purchase these weapons for direct sale to law enforcement agencies. Evidence indicated that Bailey used unauthorized letters from police departments to procure weapons that were never requested by them, enabling him to evade federal excise tax applicable to sales to law enforcement. The jury could reasonably conclude that Bailey intended to deceive by ordering weapons for personal sale rather than for law enforcement. This conclusion was supported by evidence of open-ended authorization letters, false representations about requirements for these letters, and attempts to sell the weapons to civilians. Bailey's actions misled both H. K. and the IRS, contradicting his defense that no harm occurred. Thus, Bailey's conviction was upheld as he fraudulently obtained restricted weapons in violation of his contractual obligations and without paying applicable taxes. Bailey contests the sufficiency of evidence regarding actual injury under the mail fraud statute, asserting that his conviction should be invalidated because his fraudulent scheme was thwarted before the shipment of assault rifles. However, the mail fraud statute (18 U.S.C. § 1346) requires only a scheme to defraud using the mails, irrespective of its success. Previous rulings confirm that a conviction does not depend on the success of the scheme. Bailey also challenges his convictions related to specific customers, claiming a lack of fraudulent intent in transactions with Charles Schaaf and Philip Parker. He alleges he intended to fulfill his commitments but was hindered by an ATF investigation. Evidence presented shows Bailey misrepresented the condition of the Thompson submachine gun sold to Schaaf, claiming it was in excellent condition when it was not, and he deposited Schaaf's check without delivering the weapon. For the AK-47 sale to Parker, Bailey failed to send the required ATF transfer forms until after the criminal case began, leading to the inference of fraudulent intent. Despite Bailey's arguments, the jury could reasonably reject the notion that the ATF investigation prevented him from completing the transactions. The evidence indicated Bailey's actions were independent of the investigation, supporting the jury's conclusion of fraud. Additionally, Bailey contends that the evidence was insufficient for his conviction for dealing firearms without a license, but he does not dispute engaging in the firearms business illegally from his home. Instead, he argues that he was not actively operating the business there. On March 14, 1990, ATF agents searched Bailey's residence, uncovering various firearms, ammunition, and business records indicating he operated a firearms business from his home. Evidence included rifles, pistols, machine guns, and business documents that linked Bailey's business activities to his home address, despite his firearms licenses listing different addresses. A defense witness corroborated that Bailey sold guns from his residence. The jury could reasonably conclude that Bailey was conducting his firearms business at home without a license. Bailey challenged his conviction under 18 U.S.C. 922(o), which prohibits the possession and transfer of machine guns post-May 19, 1986, arguing it was unconstitutional under the Commerce Clause due to insufficient connection to interstate commerce. He cited United States v. Lopez, where a related statute was deemed unconstitutional. However, the court pointed out that legislative history clearly demonstrated Congress's intent to restrict private possession of machine guns and that the statute was constitutional under the Commerce Clause. Previous rulings confirmed that section 922(o) effectively prohibits private possession of machine guns not lawfully possessed before the cutoff date. The court also acknowledged the authority of the Bureau of Alcohol, Tobacco, Firearms, and Explosives in implementing these regulations. The excerpt references the Supreme Court's ruling in Lopez, which identifies three categories of activity Congress can regulate under the Commerce Clause: (1) the use of interstate commerce channels, (2) instrumentalities of interstate commerce or persons/things in interstate commerce, and (3) activities that substantially affect interstate commerce. The court distinguishes the total ban on machineguns from the limited regulation of firearms in school zones, citing Lopez’s conclusion that possession of a gun in a school zone does not constitute economic activity influencing interstate commerce. In United States v. Walker, the court ruled that Section 922(q) does not regulate commercial activity and thus exceeds Congress's commerce power, as it does not connect possession to interstate commerce. Conversely, in Wright, the court and other circuits found Section 922(o) constitutional, affirming that it relates to commerce under Lopez's first two categories. Bailey's challenge to Section 922(o) on Commerce Clause grounds is deemed meritless. The document notes that Lopez has not successfully invalidated various firearm regulations, as many challenges based on it have failed. Additionally, the text acknowledges that some circuits have upheld Section 922(o) based on its relation to channels and instrumentalities of commerce. Finally, the excerpt indicates that Bailey raises four issues of alleged prosecutorial misconduct on appeal. Agent Hudson is accused of committing perjury concerning certain tape-recorded evidence. The key points of contention include: (1) the failure to disclose that Duke McCaa was an ATF informant and to produce his ATF file, (2) the withholding of exculpatory evidence, and (3) improper conduct during the prosecutor's closing argument. In detail, regarding the tape-recorded evidence, Agent Hudson had authorization to make consensual recordings related to Bailey's firearms activities. One significant recording involved a conversation with Martine Priest, the owner of the accounting firm associated with Bailey. This conversation indicated Priest's lack of involvement in any wrongdoing. However, Agent Hudson inadvertently recorded over this conversation with another, failing to mention it in his reports. Two years later, all tape evidence, including the Priest conversation, was provided to the defense. During trial, Agent Hudson testified but did not disclose the recording of Priest, leading to claims of perjury when the defense later revealed the tape's existence. The court permitted the defense to withhold the Priest conversation to prevent Agent Hudson from preparing a response. Ultimately, during Bailey's testimony, the defense played the Priest tape, prompting a motion to dismiss the indictment based on alleged perjury committed in court. The district judge addressed the issue of alleged perjury by Agent Hudson, clarifying that mere testimonial errors do not equate to perjury. He stated that he couldn't conclude that Hudson was guilty of perjury based on the evidence presented and would not summon Hudson to testify unless the defense chose to call him. The government later presented Agent Hudson in rebuttal, where he acknowledged the existence of the Priest tape, stating it was authorized and that he had simply forgotten about it. Bailey argued that the Priest tape was unauthorized because Hudson's internal authorization forms only listed Bailey's name, claiming Hudson's testimony was false to cover up this breach. However, ATF Order 3530.2 allows agents to record individuals connected to the primary subject of the investigation. Since Priest was connected to Bailey's firearms business, her recording was permissible. The judge found no basis for Bailey's claim that Hudson had falsely testified, as the recording was authorized under ATF rules. Bailey's assertion that Hudson had admitted recording without authorization was also dismissed; Hudson clarified that while it is generally a crime for civilians to record conversations, law enforcement officers are permitted to do so under certain conditions. Florida law supports this by allowing law enforcement to intercept communications with consent, and federal law dictates the admissibility of evidence in federal cases, regardless of state law or internal regulations violations. Agent Hudson's recording of his conversation with Priest during the investigation of Bailey was lawful. Bailey contended that Agent Hudson initially claimed to have erased the Priest tape but later denied it. However, Agent Hudson maintained that he inadvertently taped over the conversation. Despite this, a government exhibit did contain the Priest conversation, and both the relevant exhibits were presented to the jury, which was informed that one exhibit did not include the Priest conversation. During closing arguments, Bailey's attorney urged the jury to consider the tapes and highlighted alleged perjury by Agent Hudson. After Bailey's conviction, his attorney filed a motion for acquittal based on this alleged perjury, which the district court denied, citing the absence of prosecutorial knowledge of perjury and the thoroughness of cross-examination that mitigated any potential prejudice. On appeal, Bailey renewed his claim of perjury, asserting that the indictment should be dismissed. To establish perjury as grounds for reversal, it must be proven that the statements were false, material, and known to be false by the prosecution. The court found no evidence of perjury, characterizing Agent Hudson's inconsistencies as memory lapses rather than deliberate falsehoods. The jury accepted Agent Hudson's testimony, convicting Bailey on twenty out of twenty-two counts, and both counsel emphasized that the jury should acquit if they found any testimony to be false. Agent Hudson had a trainee during the copying process and testified that he made multiple copies, yet the defense only had one copy of the Priest conversation. The jury's guilty verdict indicated their belief in Agent Hudson's credibility. Additionally, there was no motive for Agent Hudson to misrepresent the existence of the Priest tape since it did not benefit the defense; Priest's testimony was actually detrimental to Bailey. The prosecutor noted that if any tape were to be discarded, it would not be the one involving Priest, as it was not exculpatory. Agent Hudson had no motive to erase or falsely testify about the Priest tape, as evidenced by the fact that the entire tape was not erased. He testified regarding a recording that took place over three years prior, which he had forgotten until prompted by the introduction of Defendant's Exhibit 18, surprising him and leaving no opportunity for premeditated responses. Any potential error in Hudson's testimony about the tape's copying procedures was likely due to his faulty memory. Bailey failed to provide any reasonable basis to claim that Hudson's testimony was perjurious or to suggest a motive for falsehood. The alleged perjury concerning the Priest tape was found to be immaterial to Bailey's conviction and did not undermine the trial's truth-seeking function, as established in relevant case law. Hudson did not deny discussing with Priest; he simply did not mention the recording. Therefore, the fact of the recording was irrelevant to the charges against Bailey, including mail fraud and obstruction of justice. Even if there had been false testimony about the content of the tape, it would not have warranted relief since Priest's testimony remained available. Bailey's attorney characterized the conversation as "innocuous" and not significant. The district court noted that Bailey had ample opportunity to challenge Hudson's credibility during the trial. Consequently, any alleged perjury was not material, and the prosecution's lack of knowledge of any perjury further negated grounds for relief. The use of perjured testimony must be proven to have affected the jury's judgment to necessitate a conviction reversal, which was not the case here. The defense conducted an ex parte hearing to withhold the Priest tape from the prosecution. Bailey criticized the prosecutor for not addressing Agent Hudson's alleged perjury, but the prosecutor acted appropriately by recalling Agent Hudson for cross-examination on the matter. The district court found no prosecutorial misconduct since the prosecutor was unaware of any perjury, and the incident did not impact Bailey's conviction. A prosecutor must inform the court of known perjury, but failure to do so warrants reversal only if it compromises trial fairness. Bailey also claimed that Duke McCaa, a firearms dealer he approached, was an ATF confidential informant, arguing that the government did not review McCaa's ATF file to check for a plea agreement that could have provided impeachment evidence. This raised a potential Brady v. Maryland violation, requiring proof that the state had favorable evidence, that the defendant could not obtain it, that the prosecution suppressed it, and that its disclosure could have changed the trial's outcome. Evidence indicated that McCaa had previously reported illegal firearm purchase attempts to ATF but received no benefits for those reports. He testified under oath that he had no agreement or compensation with ATF, stating his cooperation was a civic duty and that he had not been promised any benefit for his testimony in Bailey's trial. McCaa explicitly did not consider himself a confidential informant. Bailey's attorney questioned the prosecution about the existence of an ATF file on McCaa that had not been disclosed to the defense. The lead prosecutor indicated uncertainty about the file's existence and noted that the defense had not requested a court order for its production. Despite the existence of the file, it contained no exculpatory evidence for Bailey. McCaa testified that he had not expected leniency or benefits in exchange for his testimony, and his file revealed no evidence of regulatory violations or any plea agreements. The file confirmed that McCaa cooperated with ATF as a concerned citizen without any promise of reward, aligning with the prosecutors' assertions regarding his testimony. Consequently, since the file lacked exculpatory material, Bailey could not establish a Brady violation. Additionally, Bailey claimed that a letter from McCaa's secretary, discovered during a search of his home, corroborated his testimony about a deal to sell firearms from McCaa's store, as indicated by an envelope and note found with his firearms license. Bailey's claim suggests a potential Brady violation regarding the government's disclosure of certain documents, specifically his license and attachments. However, the defense received these materials ahead of the trial, and even if they were provided during the trial, a Brady violation necessitates a showing of prejudice, which Bailey fails to demonstrate. The defense attorney acknowledged the discovery of the materials during trial, and they were admitted as evidence and utilized effectively. Additionally, Bailey claimed to have learned at trial about a recorded statement made at a gun show, referring to a note detailing his actions and statements to Agent Hudson. Although Bailey does not present legal authority to support his assertion that this note was discoverable, he seems to invoke Federal Rule of Criminal Procedure 16, which requires the government to disclose certain statements. Substantial prejudice is required to constitute reversible error, and because Bailey did not object to the note's late disclosure at trial, the standard of review is plain error. Furthermore, Rule 16 only mandates the disclosure of statements made in response to known government agents, and Bailey's voluntary statements to unknown agents fall outside this requirement. The government had no obligation to disclose three oral statements made by Cochran, as he was unaware that McAnally was a government agent during their conversations. Several cases, including United States v. Burns and United States v. Presser, establish that unrecorded, spontaneous statements not made in response to interrogation are not subject to discovery under Fed.R.Crim.P. 16(a)(1)(A). Similarly, Bailey's statements to Agent Hudson were not discoverable because Bailey was also unaware of Hudson's status as a government agent. Prior to trial, Bailey was aware that Agent Hudson would testify about the pistol offered for sale, as this was included in Hudson’s search application. The defense introduced the note containing Bailey's statements, and Bailey’s counsel had previously elicited this information from a witness, indicating no surprise or prejudice. The court concluded that the nondisclosure of the statements and the erased tape did not compromise the defendants' right to a fair trial, and Bailey failed to demonstrate any prejudice from the alleged late disclosure. Regarding alleged misconduct during closing arguments, Bailey contended that the prosecutor improperly characterized his defense and invoked emotional appeals. However, the purpose of closing arguments is to aid the jury’s understanding of the evidence. While prosecutors cannot exceed the evidence, they may draw reasonable conclusions from it. The court found that the prosecutor's comments were permissible as they related to the evidence, and although arguments appealing to juror emotions are generally disallowed, there is no prohibition against using vivid and engaging language if it pertains to the case. The prosecutor's statements were deemed to fall within acceptable bounds of advocacy, thus not warranting relief for Bailey. A claim of prosecutorial misconduct regarding a closing argument must demonstrate that the argument was both improper and prejudicial to the defendant's substantial rights. A curative instruction can mitigate prejudicial remarks, rendering them harmless. Misconduct justifies reversing a conviction only if it affects the defendant's substantial rights within the context of the entire trial, factoring in any curative measures. If a defendant does not object to the closing argument during the trial, relief is limited to instances of plain error, defined as errors that severely impact the fairness or integrity of the trial. Evaluating remarks for plain error involves considering them within the broader context of the trial record, including previous defense arguments. In this case, the prosecutor made two Biblical references during the closing argument. The first reference aimed to emphasize the argument of guilt regarding mail fraud, without suggesting the application of Biblical law or urging the jury to decide on religious grounds. This context rendered the commentary not improper. The second reference, made at the end of the rebuttal, included a quote from John F. Kennedy, which was presented as a final thought for the jury. The use of specific Biblical references was concluded to have no prejudicial effect on the jury. For a prosecutor's remarks to violate due process, they must be deemed improper, with a reasonable probability that their absence would lead to a different verdict. The excerpt emphasizes the moral and ethical responsibilities of jurors, urging them to embody dedication, judgment, integrity, and courage in their decision-making. The prosecutor's comments were intended to reinforce the jurors' duty to fulfill their oaths without bias against the defendant, Bailey. The prosecutor did not explicitly ask for a conviction but rather for a conscientious civic duty. This aligns with legal precedents that permit prosecutors to appeal to the jury’s sense of community conscience, provided these appeals do not incite bias. In addressing defense allegations of perjury against Agent Hudson, the prosecutor argued the credibility of the agent's testimony and urged the jurors to acquit Bailey if they believed Hudson had lied. This approach was deemed appropriate, as it directly countered the defense's claims while also presenting a reasonable standard for acquittal tied to the agent's integrity. The remarks, while vigorous, did not constitute error and served to clarify the prosecution's stance on the evidence and witness credibility. Thus, the prosecutor's arguments were ultimately beneficial to the defense, as they permitted jurors to consider acquittal based on their assessment of Agent Hudson's truthfulness. Potential prejudice to Bailey from the prosecutor's closing argument was mitigated by the district judge's instructions, emphasizing that the lawyers' arguments were not evidence and that the jury should base its decision solely on trial evidence. The judge instructed jurors to determine whether the government proved its case beyond a reasonable doubt, avoid being influenced by sympathy or prejudice, and adhere to the law as explained, without singling out any specific instruction. The prosecutor's remarks were deemed appropriate responses to Bailey's defense, which questioned Agent Hudson's credibility. The remarks did not constitute plain error that would undermine the trial's fairness and integrity. Regarding Bailey's sentencing, the government contested that it was conducted under the November 1989 Sentencing Guidelines rather than the November 1991 version applicable at the time of his last crime. Bailey argued he was sentenced under the 1990 Sentencing Guidelines, which was confirmed by the sentencing transcript. All parties, including the district judge, referenced the same edition, which was the November 1989 version marked as the "1990 Edition." The government claimed that if the 1989 guidelines were proper, they were misapplied in Bailey's case. The government contends that the district court erred in sentencing Bailey, a licensed firearms dealer, by incorrectly applying the 1990 Sentencing Guidelines instead of the relevant version in effect at the time most of his crimes were committed. The district court's determination was challenged on two main grounds: (1) the application of the possession guideline (U.S.S.G. 2K2.1) which reduced Bailey’s base offense level from 16 to 6 based on the assumption that he possessed firearms solely for lawful purposes, despite evidence indicating he possessed them for sale; and (2) the failure to adhere to the plain language of U.S.S.G. 2K2.1(b)(1) and 2K2.1(c)(1). The government argues that the district court's errors were both prejudicial and plain, impacting the outcome significantly, as Bailey's actual sentencing range was 10 to 16 months, while it should have been 78 to 97 months under the correct guidelines. Although the government acknowledges the errors made by the district court, it suggests that the alternative argument regarding the November 1989 Sentencing Guidelines may not require further consideration since Bailey's sentence is being vacated for resentencing under the November 1991 Sentencing Guidelines. Bailey’s argument for using the 1990 Guidelines was based on the date of the highest concentration of his crimes, which he successfully presented to the district court. In Stinson v. United States, the Supreme Court established that a Sentencing Guidelines policy statement serves as an authoritative interpretive guide for applicable guidelines. If the Sentencing Guidelines Manual in effect at sentencing violates the Ex Post Facto Clause, the manual effective at the time of the crime must be used for sentencing. This principle, known as the "one book rule," mandates that only one version of the Guidelines Manual be applied in its entirety during sentencing, ensuring consistency. The 1992 amendments to the Sentencing Guidelines codified this rule, prohibiting the mixing of guideline sections from different editions while allowing the consideration of clarifying amendments from subsequent versions. In cases involving multiple offenses under different guidelines, only the manuals in effect at the time of the last offense and at sentencing need to be compared. Clarifying amendments are applicable even for sentences imposed before their effective date. The Ex Post Facto Clause forbids imposing harsher penalties for actions committed before a law's enactment, as reinforced by relevant case law. The court emphasizes the necessity of applying the Sentencing Guidelines Manual in its entirety to maintain sentencing uniformity, as intended by the Sentencing Commission. This principle prevents defendants from selectively choosing provisions from different versions of the guidelines for a more favorable outcome. The "one-book rule" prohibits the mixing of amendments from various editions, thereby preserving the integrity and consistency of the guidelines. In cases involving ex post facto concerns, the earlier version of the Manual must be applied if the one-book rule cannot mandate the later Manual for all counts. Furthermore, the Guidelines grouping rules dictate that related offenses committed in a series should be sentenced together. Offenses are grouped if they involve similar harm, the same victim, or are part of a common scheme. Specific criteria for grouping include counts related to the same act, connected transactions, or those that affect the same offense level based on aggregate harm. The commentary highlights that the grouping rule is particularly applicable to property crimes, drug offenses, and other crimes primarily assessed by quantity. Examples include consolidating multiple counts of mail and wire fraud or unlicensed firearm dealing into a single group for sentencing. Additionally, relevant conduct—comprising all acts related to the defendant's criminal behavior—must also be considered in the sentencing process. Offenses requiring grouping under U.S.S.G. § 3D1.2(d) must be part of the same course of conduct or common scheme as the offense of conviction, per U.S.S.G. § 1B1.3(a)(1)(A). The terms "common scheme or plan" and "same course of conduct" are closely related, indicating that defendants committing related crimes can be sentenced for all offenses under the guidelines in effect at the time of their last act. This principle, known as the "one book rule," ensures that interconnected criminal acts are sentenced together. The Eighth Circuit affirmed this rule in United States v. Cooper, where possession of firearms on separate occasions was deemed part of a single operation. In Bailey's case, spanning from February 1989 to April 1992, the government argued for sentencing under the November 1991 guidelines to avoid violating the Ex Post Facto Clause, as the November 1993 guidelines were inapplicable. For offenses to be considered part of a common scheme, they must share substantial connections, such as common victims or purposes. Alternatively, offenses not qualifying as a common scheme may still be considered part of the same course of conduct if sufficiently related. Factors influencing this determination include the similarity of the offenses and the time intervals between them. The 1992 amendments to the Guidelines further clarified these definitions. Bailey's counsel sought to apply the 1990 guidelines, claiming it reflected the period of most of his crimes, but the government contested this approach. Bailey, on cross appeal, acknowledges that the 1993 Sentencing Guidelines Manual would have imposed a harsher sentence than the applicable guidelines at the time of his offenses. His counsel presented a "heartland" theory related to ex post facto issues, arguing that the guidelines do not adequately address how subsequent offenses affect earlier ones, particularly highlighting March 14, 1990, as the critical date for determining the "heartland" of his offenses. The attorney contended that a firearms offense from 1992 should not retroactively influence the sentencing for earlier grouped offenses, advocating for the application of the least harsh guidelines under the rule of lenity. The district judge initially questioned this argument but was ultimately persuaded, concluding that the heartland of the offenses was indeed in 1989 and 1990, acknowledging the significant disparity in penalties. Both parties agreed that sentencing under the 1993 guidelines would violate the Ex Post Facto Clause, indicating that the November 1991 edition of the Sentencing Guidelines was appropriate since it was in effect during the commission of Bailey's last crime in April 1992. The court noted that all of Bailey's crimes were connected to a consistent purpose related to his firearms business, thus forming a single Guidelines group. Importantly, sentencing under the guidelines in effect at the time of the offenses provided fair notice of the potential punishments, aligning with ex post facto protections. Bailey's brief also detailed the substantial changes in penalties for possession of automatic weapons between 1990 and 1993, supporting his argument against harsher sentencing. If the court had adhered to the Guidelines in effect at sentencing, the defendant would have faced a significantly harsher sentence, with potential penalties ranging from time served to 12 years. Recognizing constitutional concerns, the district court applied the 1990 Guidelines Manual, relevant at the time of the defendant's misconduct. Although Bailey could not have anticipated the "one book rule" introduced in the 1992 Guidelines Manual, it was deemed a clarifying amendment that should have been considered during his sentencing on March 4, 1994. The Ex Post Facto Clause is not violated in this case, as Bailey will be sentenced according to the Guidelines applicable when he committed his final crime. The court emphasized that the essence of the Ex Post Facto prohibition is to ensure fair notice of the law before imposing criminal penalties. The defendant had sufficient warning that his January 23, 1992, firearm crime fell under the 1991 amendments, which established increased offense levels. The court rejected Bailey's argument regarding an ex post facto issue, concluding that he was aware of the legal consequences of his ongoing criminal behavior post-amendment. Furthermore, the method suggested by Bailey for calculating his sentence would create an illogical outcome, allowing for lesser sentences despite more criminal activity, which the Guidelines acknowledge as a significant anomaly. Bailey was convicted of multiple counts of machinegun possession on dates that are critical to the sentencing analysis. Bailey was sentenced under the 1990 Sentencing Guidelines Manual for three of his four convictions, receiving a sentence of 10 to 16 months. Had he only been convicted on Count XVIII, the 1991 Sentencing Guidelines Manual would have been applied due to the timing of the crime. The district judge would have considered all firearms involved as relevant conduct, leading to a potential sentencing range of 121 to 151 months for Count XVIII alone, as supported by precedent. The heartland approach resulted in Bailey receiving a lower sentence despite multiple convictions, contradicting the intent of the Sentencing Guidelines. The Ex Post Facto Clause does not necessitate his current sentence. The case was remanded for resentencing under the 1991 Sentencing Guidelines Manual. Bailey’s appeal regarding the conviction was affirmed, while the government’s cross-appeal for a different sentencing guideline was agreed upon. Consequently, Bailey's sentence was vacated, and the case was remanded for resentencing consistent with the one book rule.