United States v. Dinga, No. 09-2956 (7th Cir. 07/06/2010)
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 violation of 18 U.S.C. § 1001.
On March 6, 2008, William Dinga and a friend went to Big River Sports in Adams, Wisconsin and purchased two firearms with cash. After waiting the mandatory 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 explanation 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 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.
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, Dinga set a time on Tuesday for the exam, Dinga replied, "[A]nytime Tuesday." But no polygraph test was ever conducted.
Dinga 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).
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. Dinga argues that his offer is relevant to his consciousness of innocence and credibility, and that it is especially probative in a case dependent on his credibility. The district court observed that Agent Salerno initiated and pushed the idea of taking the polygraph 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, particularly 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 polygraph tests. United States v. Bursten, 560 F.2d 779, 785 (7th Cir. 1977). 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. 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 decision to exclude Dinga's "offer" to take a polygraph test was not an abuse of discretion.
We AFFIRM Dinga's conviction and sentence.
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