United States v. David L. Bradford ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1080
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID L. BRADFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 15-CR-30001 — David R. Herndon, Judge.
____________________
ARGUED OCTOBER 31, 2017 — DECIDED SEPTEMBER 19, 2018
____________________
Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
SYKES, Circuit Judge. A jury convicted David Bradford of
conspiracy to distribute controlled substances and related
drug and firearms offenses. His appeal raises three claims of
error. First, he contests the denial of his motion to suppress
evidence recovered in a search of his home pursuant to a
warrant. His chief complaint is that the warrant application
2 No. 17-1080
relied on statements from a confidential informant but
omitted information damaging to the informant’s credibility.
Second, he challenges the denial of his pretrial motion to
exclude evidence that he used the firearms seized in the
search or directed others to use them. Last, Bradford claims
that the government failed to prove a crack-cocaine conspir-
acy. We reject these arguments and affirm.
I. Background
A grand jury returned a seven-count indictment against
Bradford stemming from his drug-distribution operation in
East St. Louis, Illinois. A jury convicted him on six of the
seven charges: conspiracy to distribute and possess with
intent to distribute controlled substances, see 21 U.S.C.
§§ 841(a)(1), 846; transfer of a firearm to a felon, see 18 U.S.C.
§ 922(d)(1); two counts of distribution of cocaine base, see
21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C); possession of mari-
juana with intent to distribute, see id. § 841(a)(1), (b)(1)(D);
and possession of a firearm as a felon, see 18 U.S.C.
§ 922(g)(1). (The jury acquitted on the remaining charge of
possession of a firearm in furtherance of a drug-trafficking
crime. See id. § 924(c).) We limit our account of the facts to
the background necessary to understand the issues raised on
appeal.
Federal law enforcement opened an investigation of
Bradford after he participated in a suspicious firearm pur-
chase with his girlfriend Delenthegia Beard-Hawkins and
their friend Danielle Smith. (The latter’s first name might be
misleading; Smith is a man.) In late February 2014, the trio
went to an Illinois gun store where Bradford and Smith
examined two .50-caliber Desert Eagle semiautomatic pis-
tols. But it was Hawkins who ended up purchasing one. The
No. 17-1080 3
gun cost about $1,500, and because Hawkins did not have
enough cash, Bradford pitched in a couple hundred dollars.
Bradford also purchased a laser sight for another type of
firearm. The clerk offered to ship the firearm to a gun store
in Missouri where Hawkins lived so she could pick it up
there.
The Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) received information about the transaction and
launched an investigation. Agents learned that both
Bradford and Smith were convicted felons, so it was illegal
for them to possess a firearm. See § 922(g)(1).
On March 4 ATF agents surveilled Hawkins as she
picked up the Desert Eagle at a Missouri gun store and
drove it to Bradford’s home in East St. Louis, Illinois. When
she arrived, Smith was on the front porch. Hawkins handed
him the firearm, and when the two started walking toward
the front door, agents arrested them. Bradford approached
from around the corner, and he too was arrested.
Hawkins told the agents that she had three firearms in
her home—two handguns and an AK-47 rifle—and that she
would sometimes bring them to Bradford’s house and leave
them there. She also admitted to being a regular marijuana
user, making it illegal for her to possess a firearm. See
18 U.S.C. § 922(g)(3). Though she denied purchasing the
Desert Eagle for Bradford, she reported that he kept a 9mm
pistol under his pillow and that she had seen two other
firearms and ammunition at his house in the days leading
up to her arrest.
All three were detained in the St. Clair County Jail on a
48-hour hold. Based on Hawkins’s information, on March 6
4 No. 17-1080
ATF agents obtained a warrant to search her home and
Bradford’s. In Bradford’s bedroom they recovered indicia of
ownership of a Draco pistol (a box, an owner’s manual, and
a serial-number tag), as well as empty magazines, gun
holsters, a gun lock, and miscellaneous firearm parts. They
did not find any firearms or the laser sight Bradford pur-
chased at the Illinois gun store. At Hawkins’s home agents
found a handgun, ammunition, and magazines, but they did
not locate the second handgun or the AK-47 she said she
kept there. The 48-hour hold expired that evening, and
Bradford, Hawkins, and Smith were released. A few days
later, Hawkins surrendered a Draco pistol to the ATF. As
expected, the pistol matched the serial number on the tag
recovered from Bradford’s bedroom.
Around this time the ATF obtained additional infor-
mation from confidential informants that Bradford was
selling crack cocaine. Smith was one of those informants; he
began cooperating with the ATF after his arrest. Agents used
Smith to conduct two controlled crack-cocaine buys from
Bradford, recording both transactions. Smith called
Bradford’s cell phone and asked to purchase crack. On
April 18 the two met at Bradford’s house, and Smith pur-
chased 23.8 grams of crack for $1,400. Several days later
Smith called Bradford and asked for more. On April 29 the
two met again at Bradford’s house, and Smith paid $2,250 for
33.8 grams of crack.
A few weeks after the controlled buys, Smith observed
marijuana and various firearms in Bradford’s home. Specifi-
cally, Smith reported to Special Agent Adam Ulery that on
May 29 he observed an SKS rifle in Bradford’s bedroom
closet, a Smith & Wesson .40-caliber pistol and an XD
No. 17-1080 5
.40-caliber pistol on Bradford’s bed, as well as a Tommy-gun
rifle under Bradford’s mattress. Smith also reported that
Bradford sometimes kept firearms in his white Cadillac.
Ulery had observed a white Cadillac parked in front of
Bradford’s residence; it was registered in Bradford’s name.
Smith continued his cooperation, telling agents on June 8
that he observed Bradford carrying a Springfield XD
.40-caliber pistol and saw marijuana packaged for sale at
Bradford’s house. He also reported that Bradford told him he
had pistol-whipped a person named D-Bow in retaliation for
stealing marijuana from him. Later that same day, Smith
witnessed a firearms transfer at Bradford’s residence; he
reported that Bradford handed a bag containing several
firearms to another person inside the home. Finally, Smith
told the agents that earlier on June 8 he saw an SKS rifle and
a Smith & Wesson .40-caliber pistol in Bradford’s bedroom.
On June 9 Agent Ulery applied for another warrant to
search Bradford’s home. He swore to the facts we’ve just
recited and noted his experience investigating the use of
firearms in drug-trafficking crimes. He explained that a
confidential informant had supplied information about
Bradford’s drug dealing and the firearms he kept in his
home, and also that the informant had participated in two
recorded crack buys from Bradford. He described these facts
in some detail, and he also stated that the informant “ha[d]
proven reliable in this and in other criminal investigations
over the last three months.” Though he mentioned Smith’s
role in the illegal firearm purchase that prompted the March
6 warrant, he did not identify Smith as the informant.
A magistrate judge issued the warrant that same day. The
search of Bradford’s home yielded three rifles, a digital scale,
6 No. 17-1080
and two sandwich baggies each containing about one ounce
of marijuana.
As we’ve noted, Bradford was indicted on charges of
conspiracy to distribute controlled substances and six related
drug-distribution and firearms crimes. He moved in limine
to suppress the evidence recovered in the March 6 and
June 9 searches of his home. The motion was denied in all
respects; only the second search remains at issue. As relevant
here Bradford argued that the June 9 warrant was invalid
because the agent’s application omitted negative information
relevant to Smith’s credibility.
At the suppression hearing, Agent Ulery testified that by
the time of the June 9 warrant application, Smith had served
as an informant in two other investigations involving con-
trolled buys and those transactions had confirmed his
reliability. He told the court that Smith had advised the ATF
that he had two prior felony convictions—one for possession
of a controlled substance and the other for armed robbery—
but he actually had three: possession of a controlled sub-
stance, residential burglary, and possession of a firearm by a
felon. Finally, Ulery testified that Smith was on probation
when he began cooperating and that the ATF had paid him
for his services. None of this information—Smith’s record,
his probation status, and the fact that he was a paid inform-
ant—was included in Ulery’s warrant application.
Ruling on the motion, the district judge acknowledged
that Ulery had omitted important information about Smith’s
credibility from the warrant application. But the judge
reasoned that Smith’s statements were otherwise detailed,
timely, and adequately corroborated, and that the applica-
No. 17-1080 7
tion contained sufficient additional information to support
probable cause for the search.
Bradford also moved in limine to exclude any evidence
that he had used the seized firearms in other crimes or
directed others to use them. The motion was cursory and
entirely generic. It did not specify the evidence at which it
was directed or explain why the evidence was inadmissible
other than a bare assertion that it was irrelevant and prejudi-
cial. In a written response, the government explained that it
would seek to introduce evidence of four violent acts (or
threats of violence) as direct evidence of the charged offens-
es.
First, the government sought to introduce evidence that
Bradford ordered a shooting in retaliation for a threat
against one of his subordinates in the drug-distribution
conspiracy. Raphael Harris, Bradford’s cousin, sold marijua-
na for him at a housing complex in the area. The boyfriend
of a woman who lived in that complex had threatened
Harris, so Bradford loaned him a Mossberg rifle to “shoot
up” the woman’s apartment. Harris did as Bradford directed
and shot up the apartment. No one was injured.
The second set of events involved Bradford’s repeated
threats and violence against a teenager nicknamed D-Bow,
who had stolen marijuana from him. In retaliation for the
theft, Bradford and Harris went to D-Bow’s house and
violently banged on the security bars on his bedroom win-
dow. Next, Bradford spotted D-Bow on a bike and chased
him down with his truck. When D-Bow jumped off the bike
and fled on foot, Bradford ran over the bike. Bradford later
confronted D-Bow directly and pistol-whipped him.
8 No. 17-1080
The third incident centered on Bradford’s plan to rob one
of his crack suppliers because the two had a falling-out.
Bradford solicited Smith and his brother to steal her car
where she kept both drugs and cash. They didn’t go through
with it.
In the fourth and final episode, an associate of Bradford’s
nicknamed Boo Man arranged for Bradford to purchase
firearms at someone’s house. When Bradford, Boo Man, and
two others entered the house, they were held up at gunpoint
and robbed. Bradford later instructed Boo Man to shoot up
the house and loaned him a firearm for that purpose. Boo
Man didn’t follow through.
In a written order, the judge summarily ruled that “the
anticipated evidence outlined by the government” was
“relevant evidence directly related to the charges” because,
as the government asserted, “it demonstrates how Bradford
allegedly conducted his [drug] ‘business.’” The judge also
ruled, again summarily, that the evidence was not “unduly
prejudicial.” But the judge’s concluding line was cryptic:
“[T]o the extent that Bradford’s motion goes to relevant
evidence directly related to the charges … , it is DENIED.
However, to the extent that the evidence goes to conduct that
is not relevant to the charges … , it is GRANTED.”
The charges were tried to a jury over five days. The gov-
ernment’s case included, among other evidence, testimony
from Hawkins, Smith, Raphael Harris, and Jeremy Harris
(Raphael’s brother, who also sold drugs for Bradford). The
government also presented evidence of the four violent
incidents we’ve just discussed without objection from
Bradford. The jury found him guilty on six counts: conspira-
cy, two of the three firearms crimes, and all three drug-
No. 17-1080 9
distribution counts (two involving cocaine base and one
involving marijuana). The judge sentenced him to 35 years in
prison and this appeal followed.
II. Discussion
A. The Search Warrant
Bradford challenges the denial of his motion to suppress
the fruits of the June 9 search. He maintains that the omis-
sion of information damaging to Smith’s credibility was fatal
to the warrant application because it deprived the magistrate
judge of information vital to the determination of probable
cause.
“Probable cause is a practical, nontechnical inquiry that
asks whether there is a fair probability, given the totality of
the circumstances, that evidence of a crime will be found in a
particular place.” United States v. Orozco, 576 F.3d 745, 748
(7th Cir. 2009) (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)). We give “great deference” to the probable-cause
determination of the magistrate who issued the warrant.
United States v. Glover, 755 F.3d 811, 816 (7th Cir. 2014) (citing
Gates, 462 U.S. at 236); see also United States v. McIntire,
516 F.3d 576, 578 (7th Cir. 2008).
When a warrant application is based on information from
an informant, our cases have identified five factors that are
particularly relevant to the warrant’s facial validity: “the
level of detail, the extent of firsthand observation, the degree
of corroboration, the time between the events reported and
the warrant application, and whether the informant ap-
peared or testified before the magistrate.” Glover, 755 F.3d at
816. Although the sufficiency of a warrant application is a
highly fact-specific determination, we have said that “infor-
10 No. 17-1080
mation about the informant’s credibility or potential bias is
crucial.” Id. Omitting this information deprives the magis-
trate of important data in the probable-cause calculus. The
omission is not necessarily fatal, however. “[E]ven where
some credibility information is omitted, a strong showing on
the primary factors can salvage the warrant.” Id. at 818; see
also United States v. Musgraves, 831 F.3d 454, 460 (7th Cir.
2016).
Agent Ulery’s warrant application left out adverse infor-
mation bearing on Smith’s credibility: his three felony con-
victions, one of which he failed to disclose to law
enforcement; his probation status; and the payments he
received for his services as an informant. And Smith did not
appear before the magistrate for questioning. Still, we’re
satisfied that the June 9 warrant was facially valid. Smith’s
information was fresh, firsthand, quite detailed, and corrob-
orated, all of which supports the magistrate’s finding of
probable cause.
A few examples suffice to show that Smith’s information
was both sufficiently detailed and adequately corroborated.
His descriptions of the firearms Bradford kept in his home
were quite specific as to gun type, and he also identified
their precise location within the home. Hawkins provided
corroboration; the information agents had gathered from her
confirmed that Bradford kept multiple firearms in his home.
And the Draco pistol she turned over to the ATF matched
the serial-number tag recovered in the earlier search of
Bradford’s home. Smith also reported that Bradford some-
times kept his firearms in his white Cadillac, and the ATF
confirmed that Bradford owned one. Finally, the warrant
application chronicled the controlled buys, which confirmed
No. 17-1080 11
Smith’s reports that Bradford was dealing crack and mariju-
ana from his home.
Bradford insists that the information from sources other
than Smith was too stale to support a finding of probable
cause. The most recent controlled buy took place around six
weeks before the warrant was issued, and Hawkins had
described the firearms in Bradford’s home three months
earlier. It’s true that “‘[s]taleness’ is highly relevant to the
legality of a search for a perishable or consumable object”
like crack cocaine or marijuana. United States v. Seiver,
692 F.3d 774, 777 (7th Cir. 2012). But “depending on the
circumstances, evidence of the sighting of a gun (or related
items) does not automatically grow stale as time passes.”
United States v. Hicks, 650 F.3d 1058, 1068 (7th Cir. 2011)
(collecting cases). And more recent information supporting
probable cause can freshen information that might otherwise
be stale. See United States v. Prideaux-Wentz, 543 F.3d 954, 958
(7th Cir. 2008); United States v. Newsom, 402 F.3d 780, 783 (7th
Cir. 2005).
Smith’s last report to the agents did just that. On June 8,
the day before the warrant issued, he observed firearms and
drugs packaged for distribution in Bradford’s residence. This
information, like his earlier reports, was firsthand and
specific. In particular, he identified the firearms Bradford
possessed by type and location in the residence.
Smith hangs his hat on United States v. Glover, but that
case is distinguishable. There, as here, the affidavit in sup-
port of the warrant omitted facts damaging to the inform-
ant’s credibility. Glover, 755 F.3d at 815. But that is where the
similarity ends. In Glover the information from the informant
was only minimally corroborated and provided little detail.
12 No. 17-1080
Id. at 817. Given the weak showing on the primary factors
relevant to probable cause, the omission of adverse credibil-
ity information was fatal to the warrant application. Id. at
818. In contrast, Smith’s information was quite detailed and
more robustly corroborated. And his information stood
alongside ample additional evidence from the ATF’s investi-
gation. Considering the warrant application as a whole, the
omission of facts bearing negatively on Smith’s credibility
was not fatal to the magistrate’s probable-cause finding.
B. Other-Acts Evidence Under Rules 404(b) and 403
Bradford also challenges the admission of evidence of the
four violent incidents we’ve described above. He argues that
this evidence should have been excluded as impermissible
character evidence under Rule 404(b) of the Federal Rules of
Evidence or alternatively under Rule 403 because the risk of
unfair prejudice substantially outweighed its probative
value.
The parties first debate whether we should consider this
issue at all, as well as the appropriate standard of review.
The government argues that the judge’s ruling on Bradford’s
motion in limine simply postponed the decision on admissi-
bility until trial, so Bradford either forfeited or strategically
waived the issue by not reasserting his objection at trial.
Accordingly, the government asks us to review for plain
error or decline to review the issue altogether. See United
States v. Ridley, 826 F.3d 437, 442, 443 n.1 (7th Cir. 2016).
Bradford urges us to review for abuse of discretion, insisting
that he preserved his objection by raising it in a motion in
limine.
No. 17-1080 13
The Rules of Evidence provide that “[o]nce the court
rules definitively on the record—either before or at trial—a
party need not renew an objection or offer of proof to pre-
serve a claim of error for appeal.” FED. R. EVID. 103(b). A
“definitive ruling” is one that “definitively settle[s] the issue
of admissibility.” United States v. Gajo, 290 F.3d 922, 927 (7th
Cir. 2002). But Rule 103 also states that objections to the
admission of evidence must be made with specificity. See FED.
R. EVID. 103(a)(1)(B); see also United States v. Gulley, 722 F.3d
901, 906 (7th Cir. 2013) (explaining that a generalized motion
in limine is insufficient to preserve a Rule 404(b) objection
for review).
Bradford’s motion in limine did not satisfy Rule 103(a)’s
specificity requirement. It did not identify the specific evi-
dence he feared would be admitted or explain why it was
inadmissible. On appeal he relies on Rules 404(b) and 403,
but his motion in limine mentioned neither rule. The gov-
ernment’s response listed the four incidents we’ve described
above and characterized these episodes as direct evidence of
the charged crimes insofar as they showed how Bradford ran
his drug business.
Based on these submissions, it’s no wonder the judge’s
ruling was equivocal. The order appears to simultaneously
accept the government’s argument and punt the whole issue
over to trial. It concludes: “[T]o the extent that Bradford’s
motion goes to relevant evidence directly related to the
charges … , it is DENIED. However, to the extent that the
evidence goes to conduct that is not relevant to the charg-
es … , it is GRANTED.” That’s not a definitive ruling. So
Bradford had to lodge a timely and specific objection at trial
14 No. 17-1080
to preserve the issue for appeal. He did not do so. His argu-
ments under Rules 404(b) and 403 are entirely new.
That means our review is constrained by the plain-error
standard, which is a difficult hurdle for a challenger to clear.
Reversal is unwarranted unless Bradford can establish a
“clear or obvious” error that affected his substantial rights.
United States v. Swan, 486 F.3d 260, 264 (7th Cir. 2007). Even
then, we will not “exercise our discretion to correct the error
unless it seriously affect[s] the fairness, integrity, or public
reputation of the judicial proceedings.” Id. (internal quota-
tion marks omitted). Bradford has not carried this burden.
Rule 404(b) bars the admission of “[e]vidence of a crime,
wrong, or other act … to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.” FED. R. EVID. 404(b)(1). The
government contends that the testimony regarding the four
violent episodes was direct evidence of the charged drug
conspiracy and firearms crimes, taking it outside the ambit
of Rule 404(b). See United States v. Gorman, 613 F.3d 711, 717
(7th Cir. 2010).
Evidence that “tend[s] to prove the elements of the of-
fense” does not violate Rule 404(b). United States v. Vargas,
689 F.3d 867, 874 (7th Cir. 2012); Gorman, 613 F.3d at 717.
More to the point here, “evidence directly pertaining to the
defendant’s role in a charged conspiracy” falls outside the
scope of Rule 404(b). United States v. Adams, 628 F.3d 407, 414
(7th Cir. 2010). To win a conviction on the conspiracy count,
the government had to prove that Bradford “knowingly and
intentionally” joined an agreement to distribute drugs.
United States v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015). To
convict him of possessing a firearm in furtherance of that
No. 17-1080 15
conspiracy, the government had to prove that the firearms
listed in the indictment did indeed “further, advance, move
forward, promote or facilitate the drug-trafficking crime …
by providing the dealer, his stash, or his territory with
protection.” United States v. Eller, 670 F.3d 762, 765 (7th Cir.
2012) (citing 18 U.S.C. § 924(c)).
As we’ve explained, the government introduced testimo-
ny that Bradford loaned a Mossberg rifle to Raphael Harris,
one of his distributors, with instructions that he shoot up the
apartment of a woman whose boyfriend had threatened him.
The Mossberg is listed in the indictment among the firearms
that Bradford possessed in furtherance of the drug-
distribution conspiracy. It’s also listed in the felon-in-
possession count. So the testimony about Bradford’s transfer
of this particular firearm was properly before the jury on
these counts. It was also properly before the jury as direct
evidence of the charged conspiracy—though not because it
demonstrates how Bradford conducted his drug business, as
the government (primarily) argues. The notion that other-
crimes evidence is always admissible to prove how the
defendant ran his criminal enterprise is unsound.
A narrower justification for introducing this evidence is
that a drug-distribution conspiracy requires more than a
mere buyer-seller relationship; it requires evidence of a
shared stake in the illegal venture—for example, the “provi-
sion of tools to advance the distribution.” Pulgar, 789 F.3d at
813. Evidence that Bradford gave Harris the Mossberg rifle
to use in a show of force to preserve authority in his as-
signed drug territory is just this sort of direct evidence of a
conspiracy.
16 No. 17-1080
A similar rationale might also cover Bradford’s retaliation
against D-Bow for stealing marijuana from him. Here again,
evidence that Bradford and Harris used intimidation and
violence to protect their drug-trafficking enterprise from
perceived threats tends to prove that they participated in a
conspiracy. See United States v. Love, 706 F.3d 832, 838 (7th
Cir. 2013) (finding sufficient evidence of a drug-distribution
conspiracy in part because the defendant and his coconspira-
tors beat up an individual who the defendant suspected of
robbing his crack house); United States v. James, 540 F.3d 702,
707 (7th Cir. 2008) (citing the fact that the defendant “pro-
tected the [drug ring’s] territory through violence” as evi-
dence of the defendant’s participation in a drug-distribution
conspiracy).
The third episode is a closer call. Bradford had a falling-
out with one of his suppliers and solicited Smith to steal her
car, knowing that she stored drugs and cash in it. Perhaps it
could be inferred that Bradford would distribute the stolen
drugs or that he plotted against his supplier to intimidate a
would-be rival in order to protect his own drug trade. See,
e.g., United States v. Stephenson, 53 F.3d 836, 844–45 (7th Cir.
1995) (involving evidence of the defendants’ attempt to steal
drugs with plans to distribute the stolen product); United
States v. Nieto, 721 F.3d 357, 367–68 (5th Cir. 2013) (involving
evidence that the defendant robbed rival drug dealers to
maintain a monopoly over the drug trade). The govern-
ment’s brief touches on these purposes to justify its introduc-
tion of this evidence, but the argument is not developed.
In the fourth and final incident, Bradford gave a firearm
to a coconspirator nicknamed Boo Man and told him to
shoot up a house where the two had been robbed as they
No. 17-1080 17
were purchasing firearms. This episode is comparable to the
retaliation against D-Bow, though only loosely so.
Our point in tracing these plausible alternative justifica-
tions relates to the plain-error standard of review. It’s far
from “clear or obvious” that admitting this evidence violated
Rule 404(b). And even if it was error, Bradford has not
demonstrated that admitting this evidence violated his
substantial rights and seriously undermined the fairness and
integrity of his trial.
As a fallback, Bradford argues that the evidence should
have been kept out under Rule 403’s balancing test, which
permits exclusion of “relevant evidence if its probative value
is substantially outweighed by a danger of … unfair preju-
dice.” This argument requires only brief comment. Bradford
insists that the probative value of this evidence was dimin-
ished because he did not “actively dispute” that he pos-
sessed firearms. The premise of this argument is correct: an
important consideration in Rule 403 balancing is the extent
to which the defendant actually contests the fact that the
evidence tends to prove. United States v. Gomez, 763 F.3d 845,
857 (7th Cir. 2014). “[I]f a defendant offers to concede or
stipulate to the fact for which the evidence is offered, addi-
tional evidence may have little probative value.” Id. But
Bradford never offered to stipulate that he possessed the
firearms listed in the indictment. As a more general matter,
because Rule 403 is a balancing test, it’s hard to show plain
error. We see no such error here.
C. Sufficiency of the Evidence of a Crack Conspiracy
Finally, Bradford insists that the evidence was insufficient
to prove a conspiracy to distribute crack cocaine. This argu-
18 No. 17-1080
ment requires little comment. It should be clear from our
description of the trial evidence that the government proved
Bradford’s participation in an ongoing crack-distribution
conspiracy, not just two isolated crack-cocaine transactions.
And even if Bradford is right that the evidence was insuffi-
cient to prove an agreement to distribute crack, the conspira-
cy conviction would still stand. Bradford was charged with
conspiracy to distribute both crack cocaine and marijuana. He
does not argue that the evidence was insufficient to prove
his participation in a marijuana-distribution conspiracy.
AFFIRMED.