United States v. Birk, Edward ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1210
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD BIRK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 31—Amy St. Eve, Judge.
____________
ARGUED SEPTEMBER 12, 2005—DECIDED JULY 11, 2006
____________
Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On August 24, 2004, a jury
convicted Edward Birk on a charge of felon in possession of
a firearm, see 18 U.S.C. § 922(g)(1), and the district court
sentenced him to a term of imprisonment of 120 months
followed by three years of supervised release. On appeal,
Birk argues that he was denied a fair trial and due process
of law when the government’s witness testified that Birk
had a “very violent and extensive” criminal background and
that he was denied the effective assistance of counsel when
his trial attorney failed to object to this testimony. Birk also
claims that the district court erred in imposing a two level
enhancement on his base offense level upon finding that the
2 No. 05-1210
offense and relevant conduct included Birk’s involvement
with four firearms. We affirm.
I. Background
In December of 2003, the Chicago Police Department
(“CPD”) began investigating Dwayne Anderson for his
involvement in the unlawful sale of firearms. While investi-
gating Anderson, the CPD received information that led
them to suspect that Edward Birk, a convicted felon, might
also be involved. In January of 2004, the CPD and the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”),
with the assistance of a paid informant, Granville Payne,
began investigating Birk. Officer Todd Gillerlain, a seven-
year veteran of the CPD, instructed Payne to record any
telephone calls from Birk on the stationary phone in his
apartment using a recording device supplied by the ATF.
Payne enlisted the help of his live-in girlfriend, Nancy
Williams, to record any telephone conversations
she received from Birk, known to her as “Ed,” in the event
he was not home.1
On January 7, 2004, Williams received two calls from an
individual who identified himself as “Ed.” As Payne re-
quested, Williams recorded the two calls. During the first
call, Williams and the caller discussed the sale of a shotgun:
Ed: I’m calling to see if somebody, ah, you,
know, gonna buy the shotgun.
Williams: Yeah, he . . . . No he said his guy ain’t want
to buy it, ah, but he’ll let you, ah, use his
van to go hit the gun shop. But you got to
1
Throughout the trial transcripts, Edward Birk is referred to as
both “Birk” and “Ed.”
No. 05-1210 3
make sure that he get at least two of the
guns out of it.
....
Ed: [D]ig this now, ‘cause, ah, hey, somebody
out here waiting on me. Just tell him to get
somebody, sell, for the shotgun and I got
him (unintelligible) hand things.
Williams: Un huh.
....
Ed: Okay. After we got the gun, hey don’t worry
about these pistols.
Williams then told “Ed” to call back in fifteen minutes.
During the second call, they agreed that the price would be
$400, that the sale would be the following morning, and
that “Ed” would obtain two pistols for Payne once he “hit
the gun shop”:
Ed: You in there.
Williams: Okay. But . . . . So his guys said he’ll
buy . . . .
Ed: I got . . . . Look, I guarantee you two hand-
guns after we hit the thing.
Williams: Right. That’s what . . . .
Ed: This week. Do you hear me?
Williams: Yeah, I’m listening.
Ed: Okay.
Williams: Okay.
Ed: My word.
Williams: Alright, so he . . . . This is what his guy
said. His guy said that, uh, he’ll buy the
4 No. 05-1210
shotgun from you in the morning but he
don’t want . . .
Ed: (unintelligible)
Williams: No bullshit. You listening?
Ed: Okay. Yeah. Yeah.
Williams: But he don’t want no bullshit because you
already got him with the six hundred on
the 410.
Ed: Okay, I gotcha. I gotcha.
Williams: So Boo get up with you in the morning . . .2
Ed: Okay.
Williams: . . . with the four hundred dollars.
Ed: Bet.
Williams: That’s what you want for it right?
Ed: Yeah. Yeah.
Williams: It’s a 12 gauge right?
Ed: Right.
Williams: Okay, and make sure that you get the . . .
give him the two pistols . . .
Ed: Okay.
Williams: After you hit the gun shop.
Ed: Gotcha.
Williams: Okay.
On January 8, 2004, CPD Officer Gillerlain equipped
Payne and an undercover police officer with recording
2
During trial, Payne was referred to as (a) Payne; (b) the
confidential informant; (c) Boo; and (d) Mike.
No. 05-1210 5
devices and police money and instructed them to attempt to
buy the shotgun from Birk; however, Birk failed to appear
for the transaction and could not be contacted. The next
day, Payne called Officer Gillerlain and told him that Birk
was in Payne’s apartment with a loaded shotgun and that
he and Williams feared for their safety. Gillerlain and five
other officers were dispatched to Payne’s residence. En
route, Gillerlain received an urgent call from Williams,
inquiring as to how soon they would arrive. Gillerlain told
Williams that their arrival was imminent and that they
would confirm it by calling the apartment and letting the
phone ring once. Upon the signal, Williams was to attempt
to convince Birk to leave with the shotgun.
Once they arrived at the scene, the six officers positioned
themselves at the bottom of the stairwell leading to Payne’s
apartment. Shortly thereafter, they heard someone leave
the apartment and observed Birk descending the stairwell.
Officer Gillerlain recognized the individual as Edward Birk
and observed that he was carrying a gun which was pro-
truding approximately one foot from underneath a bed
sheet. As Birk started down the stairs, the officers an-
nounced their presence and ordered him to drop the gun.
Birk immediately retreated up the stairs, but just as he re-
entered Payne’s residence, the police apprehended him and
took possession of the shotgun.
Birk was arrested and charged with being a felon in
possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1).3 The case proceeded to trial, with the parties
3
On May 25, 2004, Birk was charged in a superceding indictment
with two counts: (1) selling a firearm, namely, a Savage .410
shotgun, to a person while having reason to believe that such
person had previously been convicted of a felony, and (2) being a
felon in possession of a firearm, namely, one loaded Kessler Arms
16-gauge shotgun. On August 23, 2004, the first day of Birk’s jury
(continued...)
6 No. 05-1210
stipulating that the shotgun was a firearm that was
transported in interstate commerce prior to January 9,
2004, and that Birk was a convicted felon. Officer Gillerlain
identified Birk in open court, and he also testified that he
recognized Birk’s voice on the two tape recorded calls with
Williams. Another arresting officer, Sergeant Loughran,
testified that he read Birk his Miranda warnings and then
transported Birk to the police station. According to
Loughran, while they were en route to the station, Birk
made the unprompted admission that he had been at
Payne’s residence to sell the shotgun for $250. Chris Labno,
the ATF agent that interviewed Birk later that day in the
lock-up, testified that Birk told him that he was going to
sell the gun to Payne’s cousin for $75. Labno recounted that
Birk admitted to possessing a shotgun when arrested, that
he was carrying the gun to Payne’s van at the time of his
arrest, and that after he saw the officers, he fled back into
Payne’s apartment, where he threw the gun onto the floor
just as he was apprehended. At trial, the tape and tran-
scripts of the calls between Birk and Williams were intro-
duced, and Officer Gillerlain, Agent Labno, and Williams all
identified the male voice on the tape as Birk’s.
During trial, the government broached the issue of
Birk’s prior convictions with Officer Gillerlain, who stated
that he learned Birk was a convicted felon by searching law
enforcement databases. Prior to this testimony, the district
court gave the following limiting instruction to the jury:
“Ladies and gentlemen, you are about to hear testimony that
is not being offered for the truth of the matter. So, it is not
being offered for the truth of what this individual is about to
tell you. It is being offered for the limited purpose to show
you why he took certain actions.” Later in his testimony, the
3
(...continued)
trial, the government moved to dismiss the sales charge and
proceeded to trial only on the possession charge.
No. 05-1210 7
prosecutor asked Officer Gillerlain if he knew of Birk’s
criminal history when he saw him exiting Payne’s apart-
ment with the shotgun, to which Officer Gillerain re-
sponded, “I knew that the criminal history of that individ-
ual was very violent and extensive.” The prosecutor then
asked, “You had knowledge that he was a convicted felon at
that time?” Gillerlain responded, “Correct. Correct.” Birk’s
trial counsel did not object to this line of questioning.
On August 24, 2004, after a two-day trial, the jury
convicted Birk of the felon in possession charge. On Septem-
ber 17, 2004, Birk moved the district court for permission to
discharge his trial counsel, who had been appointed at the
time the complaint against Birk was filed. Thereafter, on
September 30, 2004, the court granted his motion and
appointed another attorney, who currently serves as Birk’s
appellate counsel. On January 19, 2005, Birk was sentenced
to a term of imprisonment of 120 months to be followed by
three years of supervised release. At sentencing, the district
court determined that Birk’s offense and related conduct
involved four firearms and enhanced Birk’s base offense
level two points pursuant to U.S.S.G. § 2K2.1(b)(1)(A). The
court found the enhancement appropriate because “. . . the
offense and related conduct involved at least four firearms;
namely, the Kessler Arms 16-gauge shotgun, which the
defendant had when he was arrested; the .410 shotgun that
the defendant sold to the cooperating individual through co-
defendant Anderson; and, the two promised handguns that
the defendant was supposed to sell to the cooperating
individual.”
II. ISSUES
On appeal, Birk argues that he was denied a fair trial and
due process of law when the government’s witness informed
the jury that Birk had a “very violent and extensive”
criminal background, that he was denied the effec-
8 No. 05-1210
tive assistance of counsel based on his trial attorney’s
failure to object to the testimony of the government witness
that Birk had a “very violent and extensive” criminal
background, and that the district court erred in imposing a
two level enhancement on Birk’s base offense level under
U.S.S.G. § 2K2.1(b)(1)(A) upon finding that the offense and
relevant conduct included Birk’s involvement with four
firearms.
III. DISCUSSION
A. Admissibility of the Nature of Birk’s Prior Felony
Since Birk’s counsel did not object to the admission of
Officer Gillerlain’s testimony at trial, the admission of such
testimony is reviewed for plain error. Fed. R. Crim. P. 52(b);
United States v. Pree, 408 F.3d 855, 868 (7th Cir. 2005).
Under the plain error standard, before an appellate court
can correct an error not raised at trial, there must be “(1) an
‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial
rights.’ ” United States v. Cotton, 535 U.S. 625, 631 (2002);
see also United States v. Henningsen, 402 F.3d 748, 750 (7th
Cir. 2005). If all three requirements are met, an appellate
court may review a forfeited error, “but only if [ ] the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Cotton, 535 U.S. at 631-32; see also
Henningsen, 402 F.3d at 750. The defendant bears the
burden of proving that an error affected his substantial
rights and may do so by establishing that “the outcome [of
the trial] would have been different without the error.” Pree,
408 F.3d at 869. In other words, Birk must demonstrate
that the trier of fact decided his fate based not on the
circumstances of the charged offense, but upon the fact that
he was a violent career criminal.
In order to prove its case against Birk, the government
needed to establish that: (1) on January 9, 2004, Birk
knowingly possessed a firearm; (2) he had a prior felony
No. 05-1210 9
conviction; and (3) the firearm possessed by Birk had
traveled in interstate commerce prior to Birk’s possession
of the shotgun. See 18 U.S.C. § 922(g)(1); United States v.
Morris, 349 F.3d 1009, 1013 (7th Cir. 2003). Birk stipulated
to the latter two elements, thus the only issue at trial was
whether Birk knowingly possessed a firearm on January 9,
2004. On that issue, the government presented a plethora
of evidence. Officers Gillerlain and Loughran testified that
they witnessed Birk exiting Payne’s apartment holding a
gun, fleeing from police officers once their presence was
announced, and then throwing the gun to the floor in
Payne’s apartment while being apprehended by the officers.
The government also introduced testimony regarding Birk’s
confessions to law enforcement officers, on two occasions,
that he was holding a gun or involved in trying to sell one
on the date in question. Specifically, Sergeant Loughran
testified that after Birk was read his Miranda warnings,
Birk made an unprompted admission that he had been at
Payne’s residence to sell the shotgun to an acquaintance’s
brother for $250. Additionally, ATF Agent Labno testified
that after he advised Birk of his Miranda warnings, Birk
admitted that (1) he was carrying a gun to Payne’s van just
prior to his arrest, (2) he planned to sell the gun to Payne’s
cousin, (3) he would receive $75 for selling the gun to
Payne’s cousin, (4) he fled from the officers when they
announced their presence, and (5) he threw the gun just as
he was being apprehended by the police. Furthermore, the
jurors heard the recordings and transcripts of the calls from
January 7, 2004, in which Birk explicitly discussed the sale
of a shotgun as well as an agreement to obtain two hand-
guns for Payne in exchange for facilitating the sale of the
shotgun. The jury also presented with Williams’ in-court
identification of Birk, based on his voice, as the caller on
January 7, 2004, and the man in Payne’s apartment on
January 9, 2004.
As conceded by the government, the admission into
evidence of Officer Gillerlain’s testimony that Birk’s
10 No. 05-1210
criminal history was “very violent and extensive” clearly
constituted plain error. However, when the evidence is
so strong and convincing that a jury would have reached the
same verdict absent the error, then the error is harmless.
See United States v. Ramsey, 406 F.3d 426, 432 (7th Cir.
2005). Based on the overwhelming evidence detailed above,
which demonstrated Birk’s knowing possession of a firearm,
we are convinced that the district court’s error did not
seriously affect Birk’s substantial rights or “the fairness,
integrity, or public reputation of judicial proceedings.” Id.;
see also United States v. Daniel, 134 F.3d 1259, 1262-63 (6th
Cir. 1998) (holding that admission of the nature of defen-
dant’s prior criminal history was harmless due to over-
whelming evidence against defendant), cert. denied, 525
U.S. 830 (1998). Rather, we are of the opinion that the
record conclusively demonstrates that the government
presented more than sufficient evidence to satisfy the
elements of a felon in possession charge. See United States
v. Johnson, 137 F.3d 970, 975 (7th Cir. 1998). We have no
doubt that the jury would have rendered the same verdict
in this case had Officer Gillerlain never mentioned the
violent nature of Birk’s prior criminal convictions or had the
trial judge stricken that remark. Thus, we hold that the
district court’s error in admitting the evidence was harm-
less.
B. Ineffective Assistance of Counsel
Birk also argues that he was denied the effective assis-
tance of counsel because his trial attorney failed to object to
Officer Gillerlain’s testimony that he had a “very violent
and extensive” criminal background. In order to sustain
an ineffective assistance of counsel claim, a defendant must
prove that his attorney’s performance fell below an objective
standard of reasonableness and that he was prejudiced as
a result. See Strickland v. Washington, 466 U.S. 668, 687-88
No. 05-1210 11
(1984). Furthermore, in Strickland, the Supreme Court
stated that “a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficien-
cies,” and concluded that where an ineffective assistance
claim may be resolved based on lack of sufficient prejudice,
“that course should be followed.” Id. at 697; see also Taylor
v. Bradley, 2006 WL 1376958, at *6 (7th Cir. 2006) (citing
Strickland and finding that “[t]his court has consistently
followed the Supreme Court’s mandate in Strickland, first
examining whether the petitioner has established prejudice
and then, if necessary, examining whether counsel’s
performance fell outside the parameters of what could
objectively be considered ‘professionally competent.’ ”).
In light of the overwhelming evidence against him and
from our review of the record, we are convinced that Birk
has failed to demonstrate how the outcome of his trial
would have been different if the jury had not heard Officer
Gillerlain’s remark about the nature of his prior convic-
tions. As previously set forth in detail, the government
presented more than sufficient evidence of Birk’s knowing
possession and control of a shotgun on January 9, 2004.
Thus, his trial attorney’s failure to object to the admission
of Officer Gillerlain’s testimony did not prejudice Birk, and
his ineffective assistance of counsel claim falls short. See
also Bieghler v. McBride, 389 F.3d 701, 707 (7th Cir. 2004)
(holding that ineffective assistance of trial counsel did
not prejudice the case where there was overwhelming
evidence and “damning testimony” against the defendant).
C. Sentence Enhancements
Birk’s final argument is that the district court’s imposi-
tion of a two level enhancement to his base offense level
pursuant to U.S.S.G. §2K2.1(b)(1)(A) constituted clear error.
Specifically, Birk contends that the district court errone-
12 No. 05-1210
ously found that his offense involved the .410 shotgun he
sold to Payne through Anderson and the two handguns he
promised to obtain for Payne. The district court’s factual
determinations related to sentencing are reviewed only
for clear error. United States v. Griffin, 310 F.3d 1017, 1022
(7th Cir. 2002). “Furthermore, a district court’s choice
between two permissible inferences from the evidence
cannot be clearly erroneous.” United States v. Wyatt, 102
F.3d 241, 246 (7th Cir. 1996). Rather, a factual determina-
tion is clearly erroneous “only, if after considering all the
evidence, the reviewing court is left with the definite and
firm conviction that a mistake has been committed.” United
States v. Messino, 55 F.3d 1241, 1247 (7th Cir. 1995)
(internal quotations omitted).
Pursuant to the now-advisory United States Sentencing
Guidelines, see United States v. Booker, 543 U.S. 220 (2005),
U.S.S.G. §2K2.1(b)(1)(A) provides for a two level increase in
the defendant’s base offense level if an offense involved
three or more firearms. The commentary to
U.S.S.G. §2K2.1(b)(1)(A) provides that the district court
should “count only those firearms that were unlawfully
sought to be obtained, unlawfully possessed, or unlawfully
distributed.” U.S.S.G. § 2K2.1, cmt., n. 2. It is the govern-
ment’s burden to prove by a preponderance of the evidence
the number of firearms involved in an offense, and the
sentencing court may consider relevant evidence regardless
of whether such evidence is admissible under the Federal
Rules of Evidence “so long as the information . . . has a
sufficient indicia of reliability to support its probable
accuracy.” United States v. Edwards, 115 F.3d 1322, 1326-
27 (7th Cir. 1997).
The district court found that the offense and relevant
conduct involved at least four firearms: (1) the Kessler
Arms 16-gauge shotgun, for which Birk was convicted; (2)
a .410 shotgun that Birk sold to Payne through Anderson,
which was charged in Count Two of the indictment but later
No. 05-1210 13
dismissed; and (3) the two handguns that Birk discussed
with Nancy Williams and intended to sell to Payne at some
later date, but did not possess at the time of his arrest. We
need only address the two handguns Birk promised to
obtain for Payne in exchange for facilitating the sale of the
shotgun. If they are properly included in the calculation,
then the magic number three is reached and the enhance-
ment was appropriate; if they cannot be counted, then a
remand for resentencing would be warranted.
The Guideline commentary states that a court should
consider those firearms “unlawfully sought to be obtained”
when determining whether an enhancement is appropriate.
U.S.S.G. § 2K2.1, cmt., n. 1. At sentencing, the government
introduced into evidence both of the recorded conversations
between Birk and Williams that occurred on January 7,
2004. The first conversation begins with Birk referencing
the shotgun at issue in this conviction: “I’m calling to see if
somebody, ah, you, know, gonna buy the shotgun.” Wil-
liams, in turn, counters with, “Yeah, he . . . . No he said his
guy ain’t want to buy it, ah, but he’ll let you, ah, use his van
to go hit the gun shop. But you got to make sure that he get
at least two of the guns out of it.” In the second conversa-
tion, Birk states, “I guarantee you two handguns after we
hit the thing.” Then, at the end of the second conversation,
Williams says, “[M]ake sure that you get the . . . give him
the two pistols,” to which Birk replies, “Okay.”
The dialogue between Birk and Williams demonstrates an
understanding that not only was the shotgun at issue but
that the two handguns were also part of the deal. While the
Guidelines caution against speculative findings, they also
“emphasize the need to consider intended conduct as well as
completed conduct.” United States v. Szakacs, 212 F.3d 344,
348 (7th Cir. 2000). Although the guns were not yet in
Birk’s possession, he did offer specific information about the
guns he promised to obtain for Payne in exchange for
facilitating the sale of the shotgun, namely, the number of
14 No. 05-1210
guns (two) and the type of guns (“handguns” or “pistols”) to
be bartered. Furthermore, as previously discussed, there
was ample evidence offered at trial that Birk was the
individual on the phone bartering with Williams. Thus,
because there is more than a sufficient quantum of evidence
in the record to support the district court judge’s finding
that the two pistols formed part of the consideration for the
sale of the shotgun Birk was ultimately charged with
possessing, we affirm Birk’s sentence, including the two
level enhancement to Birk’s base offense level upon finding
that the offense and relevant conduct included Birk’s
involvement with three or more firearms.
III. Conclusion
The court AFFIRMS Birk’s conviction and sentence.
No. 05-1210 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-11-06