U.S. v. Birk

• Decision Date: 11 July 2006
• Docket Number: No. 05-1210.,05-1210.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward BIRK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

453 F.3d 893

UNITED STATES of America, Plaintiff-Appellee, v. Edward BIRK, Defendant-Appellant.

No. 05-1210.

United States Court of Appeals, Seventh Circuit.

Argued September 12, 2005.

Decided July 11, 2006.

As Amended July 28, 2006.

Christopher Veatch (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Susan M. Pavlow (argued), Weinberg & Rizzi, Chicago, IL, for Defendant-Appellant.

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. Birk also claims that the district court erred in imposing a two level enhancement on his base offense level upon finding that the 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 investigating 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 requested, 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 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 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 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 protruding approximately one foot from underneath a bed sheet. As Birk started down the stairs, the officers announced their presence and ordered him to drop the gun. Birk immediately retreated up the stairs, but just as he reentered 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 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 transcripts of the calls between Birk and Williams were introduced, 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 prosecutor asked Officer Gillerlain if he knew of Birk's criminal history when he saw him exiting Payne's apartment with the shotgun, to which Officer Gillerain responded, "I knew that the criminal history of that individual 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 September 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 codefendant 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 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,...