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

1 Throughout the trial transcripts, Edward Birk is referred to as

both “Birk” and “Ed.”

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 sevenyear 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
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 handguns 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

2 During trial, Payne was referred to as (a) Payne; (b) the

confidential informant; (c) Boo; and (d) Mike.

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
No. 05-1210 5

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...)

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
6 No. 05-1210

3 (...continued)

trial, the government moved to dismiss the sales charge and

proceeded to trial only on the possession charge.

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
No. 05-1210 7

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, 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 handguns 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 defendant’s prior criminal history was harmless due to overwhelming 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 harmless.

B. Ineffective Assistance of Counsel

Birk also argues that he was denied the effective assistance 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 deficiencies,” 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 convictions. 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 imposition 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 determination 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 government’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 enhancement 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.” Williams, 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 conversation, 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