United States of America v. Brian Stafford

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 18, 2023
Decided August 1, 2025
Before
DIANE P. WOOD,1 Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2351
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN STAFFORD,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:16-cr-727
Robert W. Gettleman,
Judge.
O R D E R
Twice, the government tried defendant Brian Stafford for firearm and drug
offenses. The first jury rendered a partial verdict, convicting on one charge but failing to
reach a verdict on three other charges. The second jury, however, did convict on those
remaining charges. Stafford appeals his conviction on the ground that evidence—which
1 Circuit Judge Wood retired on May 1, 2024, and did not participate in the decision of this order,
which is being resolved under 28 U.S.C. § 46(d) by a quorum of the panel.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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the second jury heard but the first jury did not—was improperly admitted. He also
challenges two sentencing enhancements applied by the district court. Finding no error
underlying his conviction or sentence, we affirm.
I
The relevant events in this case center on three critical dates in 2016: October 24,
November 1, and November 2. While evidence from October 24 and November 2 was
introduced at both trials, the November 1 evidence was only introduced at the second
trial. We describe these events in detail.
A
A confidential source (CS) notified federal agents after Stafford texted images of
boxed firearms to him. FBI agents tasked the CS with determining whether Stafford, a
convicted felon, still possessed the firearms.
On October 24, 2016, the government conducted a controlled buy of three firearms
at Stafford’s Bellwood, Illinois home with the help of the CS. The FBI equipped the CS
with an audio-visual recording device. The CS’s recording device captured images of
Stafford accessing his fiancée’s Ford Taurus parked outside his home. The CS also
documented Stafford retrieving three boxes, each containing an assault rifle, from the
trunk of the Taurus. Stafford gave the three assault rifles to the CS.
About a week later, on November 1, Stafford offered to sell 100 grams of heroin to
the CS in exchange for $8,000. Later that same day, the CS made the purchase, again
equipped with a recording device. Inside Stafford’s home, the CS’s recording device
captured images of a table with narcotics packaged for sale and a handgun with a unique
serial number. When the CS asked for more heroin as they exited the house, Stafford went
outside to a parked Ford Taurus and reached inside. The CS and Stafford then proceeded
to the CS’s car and got in. There, Stafford gave the CS three additional grams of heroin.
While in the CS’s vehicle, Stafford also discussed prices for four-and-a-half ounces of
cocaine.
The following day, November 2, the government executed warrants to search
Stafford’s home and the Ford Taurus. After searching the Taurus, agents recovered: (1)
from the front-passenger seat, a handgun with the same serial number captured by the
CS’s camera the day before along with a sock filled with 9mm ammunition; (2) from the

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trunk, a second handgun and a box of ammunition; (3) bagged heroin and crack cocaine
from the trunk and glove compartment; and (4) a bottle of Dormin (a chemical agent used
to cut heroin). Agents also searched Stafford’s garage and found a hydraulic press (a tool
used to package drugs), a shoebox containing more Dormin and empty pill casings, and
a handgun box with a serial number matching the serial number of the handgun
recovered from the trunk of the Taurus. Agents also recovered a ballistic vest from
Stafford’s house.
B
In August 2019, the government charged Stafford with four counts: (1) possessing
as a felon the three assault rifles sold to the CS on October 24, 2016 (Count One); (2)
possessing as a felon the two firearms found in the Taurus on November 2, 2016 (Count
Two); (3) possessing cocaine base and heroin with intent to distribute on November 2,
2016 (Count Three); and (4) possessing the two firearms found in the Taurus on
November 2, 2016, in furtherance of a drug trafficking crime (Count Four). The
information did not charge Stafford with any crimes related to his sale of heroin to the
CS on November 1, 2016.
Stafford proceeded to trial on these charges in December 2019. The government
played video and audio excerpts recorded by the CS during the controlled buy on
October 24, 2016. It also presented an expert witness to discuss the items recovered
during the execution of the November 2, 2016, search warrants. Primarily, the expert
testified that the quantities of crack cocaine and heroin recovered amounted to “hundreds
and hundreds of hits” and were consistent with the quantities that one would sell to
“another mid-level dealer,” not a mere user. He also connected the ballistic vest, firearms,
plastic bags, and hydraulic press to the sale of drugs. Additionally, analysts from the FBI
testified that the hydraulic press bore Stafford’s fingerprints and that DNA collected from
one of the recovered firearms was 1,700 times more likely to have come from Stafford
than another source.
Stafford’s theory of the case was that several other individuals also had access to
his fiancée’s vehicle and that the guns and drugs must have belonged to one of them. To
support this theory, Stafford called his fiancée, Tiffany Sims, who verified that she owned
the Ford Taurus. But on cross-examination, she conceded that Stafford handled the
repairs and possessed the only set of keys. She also testified that she had never seen
anyone other than Stafford or herself operate the car.

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The jury found Stafford guilty of possessing as a felon the assault rifles he sold to
the CS on October 24, 2016. As to the remaining three counts, the jury was unable to reach
a verdict, and the court declared a mistrial.
C
In October 2020, a grand jury again indicted Stafford with four counts, with
Counts Two through Four mirroring those in the prior information. But Count One was
new. It charged Stafford with distribution of heroin based on the controlled buy on
November 1, 2016, when he sold the CS heroin. Stafford pleaded guilty to Count One
prior to trial.
After Stafford’s guilty plea but before the second trial, the government moved in
limine to admit evidence of Stafford’s November 1, 2016, drug transaction as well as the
firearm the CS filmed inside Stafford’s home that day. According to the government,
although the November 1 evidence showed “other acts” proscribed by Federal Rule of
Evidence 404(b), those acts were relevant to prove that Stafford had knowingly possessed
both the gun and the drugs and had intended to distribute the drugs the very next day,
November 2—both permissible purposes under Rule 404(b)(2). Stafford objected, arguing
that the facts related to the November 1 transaction constituted improper propensity
evidence proscribed by Rule 404(b)(1). The court disagreed and granted the government’s
motion.
Stafford proceeded to his second trial on the remaining three counts—the same
that were at issue at the first trial. All told, the evidence was very similar. The only
material difference was the admission of the evidence from the November 1 sale. Prior to
the government’s introduction of that evidence, the court instructed the jury to only
consider the evidence to determine whether Stafford knowingly possessed the drugs and
guns on November 2 and whether he intended to distribute the drugs on that date.
As in the first trial, Stafford proceeded on the theory that he was not the only
person with access to the Taurus. In addition to his fiancée, Stafford called a new witness,
his neighbor Claudell Edwards, who testified that she had observed other individuals
driving the Taurus, including the CS.
After closing arguments, the court instructed the jury on the legal principles that
governed the trial. As part of these instructions, the court again admonished the jury to
consider the evidence from the November 1 controlled buy only as to whether Stafford

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had exercised ownership and control of the firearms and drugs and possessed the intent
to distribute the drugs on or about November 2 as alleged in the indictment. The court
added, “You may not consider this evidence for any other purpose. And to be more
specific, you may not assume that because the defendant committed an act in the past he
is more likely to have committed the crimes charged in the indictment.”
The jury returned a guilty verdict against Stafford on all three counts. Stafford filed
a post-trial motion for a judgment of acquittal and, alternatively, a new trial, again
objecting to the admission of the November 1 evidence. The court denied the motion.
D
The court ultimately sentenced Stafford to a total of 160 months of imprisonment.
Relevant to this appeal, Stafford objected to two enhancements at sentencing, which the
district court overruled. First, the district court imposed a four-level enhancement to
Stafford’s base offense level pursuant to Sentencing Guidelines § 2K2.1(b)(5) for selling
two or more firearms to an individual whom the defendant knew or had reason to believe
had a prior conviction for a “crime of violence, a controlled substance offense, or a
misdemeanor crime of domestic violence.” U.S. Sent’g Guidelines Manual (U.S.S.G.)
§ 2K2.1(b)(5) & cmt. n.13 (U.S. Sent’g Comm’n 2021). The enhancement was predicated
on Stafford’s sale of the assault rifles to the CS on October 24, 2016. Stafford emphasized
at trial the decades-long friendship he shared with the CS, describing him as “a member
of [the Stafford] family.” So, the court inferred that Stafford must have been aware of the
CS’s lengthy criminal history.
The district court also enhanced Stafford’s base offense level pursuant to
Sentencing Guidelines § 2K2.1(a)(4), which provides that a defendant convicted of certain
firearms offenses will receive a base offense level of 20 if he has a prior conviction of a
“controlled substance offense.” U.S.S.G. § 2K2.1(a)(4). At the time of sentencing, Stafford
had a prior conviction for trafficking cocaine under Illinois law. According to Stafford,
this offense could not trigger § 2K2.1(a)(4)(A) because Illinois law defines “cocaine” more
broadly than federal law. As the district court recognized, and as Stafford admits on
appeal, this argument is foreclosed by our decision in United States v. Ruth, 966 F.3d 642
(7th Cir. 2020).
II
We first address Stafford’s contention that the district court erroneously admitted

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the November 1 evidence at his second trial. We then turn to the two sentencing
enhancements.
A
A district court’s decision to admit evidence is reviewed for abuse of discretion.
United States v. Norweathers, 895 F.3d 485, 490 (7th Cir. 2018). Stafford’s challenge on
appeal is predicated on Federal Rules of Evidence 404 and 403. Stafford does not
challenge the court’s decision to admit evidence that he had possessed a handgun on
November 1; rather, he focuses on the admission of evidence regarding his sales of heroin
to the CS on that day. But his challenge fails on numerous grounds.
First, Stafford argues that the November 1 evidence constituted propensity
evidence prohibited by Rule 404(b)(1), which states that “[e]vidence of any other crime,
wrong, or act is not admissible 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). In other words, the government may not introduce evidence that a defendant
acted a certain way in the past to prove that he has a “propensity” for specific sorts of
behavior that manifested on a subsequent occasion. See United States v. Gomez, 763 F.3d
845, 852 (7th Cir. 2014) (en banc). But other-act evidence can be admissible for non-
propensity purposes, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
We explained in Gomez that “the rule allows the use of other-act evidence only
when its admission is supported by some propensity-free chain of reasoning.” 763 F.3d
at 856 (citations omitted). We noted that it is not enough for a trial court to determine that
evidence of crimes, wrongs, or other acts is relevant to an issue such as motive, plan, or
identity; instead, trial courts must further determine whether that relevance is based
upon “a hidden propensity inference.” Id. Therefore, before deciding that evidence is
admissible, “the district court should not just ask whether the proposed other-act evidence
is relevant to a non-propensity purpose but how exactly the evidence is relevant to that
purpose—or more specifically, how the evidence is relevant without relying on a
propensity inference.” Id.
Here, the district court stated in its order granting the government’s Rule 404(b)
motion that the evidence “consisting of defendant’s possession of the Smith & Wesson
pistol on November 1, 2016, and the November 1 heroin transaction with the informant
is directly relevant to show intent, preparation, plan and knowledge related to the crimes

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charged in the remaining three counts of the indictment.” The court continued that, “[i]n
light of the government’s representation limiting the recording, such evidence is not
unfairly prejudicial to the defendant.” The court therefore concluded that the evidence
from November 1 “does not violate Evidence Rule 404(b)’s prohibition of evidence
offered to prove the character of the defendant in order to show action and conformity
therewith.”
Stafford believes that the district court’s explanation fell short of what Gomez
requires. And, admittedly, the court’s rather cursory statement does give us pause. But
our review of the record convinces us that the court’s Rule 404(b) analysis was correct.
See United States v. Mabie, 862 F.3d 624, 634 (7th Cir. 2017) (admitting evidence under Rule
404(b) while acknowledging district court could “have been clearer” with more explicit
findings). Under Gomez, the proponent must show that the other-act evidence is relevant
to the proffered purpose through a non-propensity chain of reasoning. Gomez, 763 F.3d
at 856. This is what the government did here.
According to the government, the November 1 evidence illustrated Stafford’s
possession and control over the Ford Taurus (as well as the drugs and firearms found
inside) and demonstrated his intent to distribute the drugs that were later found in the
vehicle on November 2. Neither of these paths depend upon a propensity inference. See,
e.g., United States v. Morgan, 929 F.3d 411, 427 (7th Cir. 2019) (concluding that testimony
from witnesses that defendant had distributed meth to them shortly before defendant’s
arrest was admissible under Rule 404(b) to prove defendant’s intent to distribute meth).
The district court recognized this, finding the November 1 evidence “directly relevant”
to the crimes charged. So, while we would have preferred a more fulsome explanation
consistent with Gomez, the district court’s reasoning here was sufficient (if barely), given
the straightforward nature of the facts in this case.
Furthermore, it bears noting that, because the evidence the CS provided of his
November 1 encounter with Stafford was directly relevant to the charged crimes, it may
not constitute other-acts evidence at all. See United States v. Edwards, 26 F.4th 449, 453 (7th
Cir. 2022) (“Rule 404(b) simply does not apply to direct evidence of the crime charged.”)
(citation modified); United States v. Alviar, 573 F.3d 526, 538 (7th Cir. 2009) (“Rule 404(b)
is inapplicable where the bad acts alleged are really direct evidence of an essential part
of the crime charged.”) (internal quotation marks omitted).
Recall that the indictment underlying the second trial charged Stafford with
possession of heroin and cocaine base with intent to distribute, possession of firearms in

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furtherance of a drug crime, and possession of firearms as a felon—each “on or about
November 2, 2016.” On November 1, inside Stafford’s home, the CS filmed a firearm on
a table with drugs bundled for sale as well as Stafford’s transfer of 100 grams of heroin
to the CS. Shortly after exiting the home, Stafford reached into the Ford Taurus parked
outside before joining the CS in his car. He then handed over another three grams of
heroin and talked about prices for cocaine. The very next day, November 2, investigators
recovered heroin, cocaine, drug paraphernalia (including a hydraulic press bearing his
fingerprints), and two firearms from the Ford Taurus and Stafford’s home. Under these
circumstances, the evidence of Stafford’s sales of heroin to the CS on November 1 was
probative of the crimes charged in the indictment. See, e.g., United States v. Adkins, 743
F.3d 176, 183–84 (7th Cir. 2014) (evidence of defendant’s planned trip to Canada to obtain
heroin one week prior was admissible as direct evidence of attempted possession with
intent to distribute “on or about” certain date one week later).
That said, regardless of whether we treat the November 1 events as direct or other-
acts evidence, we conclude that the district court did not abuse its discretion when it
rejected Stafford’s request to exclude the evidence under Rule 403. To be sure, “Rule 403
does much of the heavy lifting in the admissibility analysis by excluding other-act
evidence that may be slightly probative through a non-propensity theory but has a high
likelihood of creating unfair prejudice by leading a jury to draw conclusions based on
propensity.” Gomez, 763 F.3d at 857. But the events of November 1 were highly relevant
to the crimes at issue.
For example, Stafford denied that the drugs recovered from the Ford Taurus on
November 2 were his. But this is contradicted by Stafford’s actions on November 1 that
tended to show his control over the vehicle and its contents.2 Moreover, Stafford refuted
that he had the intent to sell the drugs law enforcement recovered from the Taurus on
November 2. But his sale of drugs from the Taurus the day before rebutted this theory.
Thus, the November 1 evidence was highly probative of the elements the government
needed to prove at trial.
What is more, any risk of undue prejudice was mitigated by the court’s
instructions to the jury, given both before the November 1 evidence was introduced and
2 By contrast, the improperly admitted other-acts evidence in United States v. Miller, 673 F.3d 688,
698 (7th Cir. 2012), and United States v. Chapman, 765 F.3d 720, 726 (7th Cir. 2014), involved prior convictions
occurring years before the offense conduct for which the government did not offer a non-propensity theory
of admissibility.

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again after closing arguments, that the evidence should be considered only for assessing
whether Stafford controlled the firearms and drugs and had intended to sell the drugs on
November 2.3 See Gomez, 763 F.3d at 865 (Hamilton, J., concurring) (providing exemplar
of jury instruction when evidence is properly admitted under Rule 404(b), which the
district court followed closely here). “We presume a limiting instruction along these lines
is effective[.]” United States v. Mireles, 116 F.4th 713, 726 n.4 (7th Cir. 2024). Accordingly,
“[a]lthough the district court might have better explained the rationale” underlying its
finding that the evidence was not unfairly prejudicial to Stafford, United States v. Gorman,
613 F.3d 711, 720 (7th Cir. 2010), we are satisfied the district court did not abuse its
discretion in admitting this evidence.
Even if, however, the November 1 drug evidence was erroneously admitted, we
conclude that any error was harmless. “The test for harmless error is whether, in the mind
of the average juror, the prosecution’s case would have been significantly less persuasive
had the improper evidence been excluded.” Gomez, 763 F.3d at 863 (citation modified).
The burden of proving harmless error rests on the government. See id. at 865 (Hamilton,
J., concurring). We do not take lightly the fact that the second jury, who heard the
November 1 evidence, convicted on all counts and that the first jury, who did not hear
that evidence, did not. But while the prosecution’s case may have been less persuasive
without that evidence, we do not find it was significantly so.
Stafford points to the inconsistent verdict which figured prominently in our
harmless-error analysis in Chapman, 765 F.3d at 722. There, the defendant was charged
with the same three counts at issue here. Id. Officers testified that they spotted Chapman
carrying a bag containing what looked like a rifle and, after apprehending him, later
found a bag containing both drugs and a rifle. Id. Chapman claimed he did not possess
the bag at all. A jury convicted him of possessing the drugs but not of possessing the
firearm. Id. Chapman challenged the admission at his trial of his heroin-trafficking
conviction from years prior. Id. After concluding that the district court erroneously
3 We reject Stafford’s contention that the district court’s two limiting instructions were inconsistent.
Specifically, the court first permitted the jury to consider the November 1 evidence to “decide whether the
defendant, Mr. Stafford, knowingly possessed the controlled substances and firearms … or whether the
defendant had the intent to distribute the controlled substances.” And in the final instructions, the court
stated the jury could consider the evidence to “decide whether, first the defendant exercised ownership
and control of the firearms and controlled substances … and second, that the defendant had the intent to
distribute the controlled substances.” Both instructions referred to possession and intent, essential elements
of the charges against Stafford, even if the second instruction framed possession in terms of the exercise of
“ownership and control.”

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allowed the prior conviction, we held that the error was not harmless and vacated
Chapman’s conviction. Id. at 727–28. We observed that “[t]he jury’s factually inconsistent
verdict is strong evidence that the government’s case would have been significantly less
persuasive without the other-act evidence.” Id. at 728.
Critical facts distinguish Chapman from the instant case. As an initial matter, unlike
the verdict in Chapman, Stafford’s guilty verdict following a mistrial based on a hung jury
is not inherently inconsistent. “The fact that a jury hangs is evidence of nothing—other
than, of course, that it has failed to decide anything.” Yeager v. United States, 557 U.S. 110,
125 (2009). A hung jury does not necessarily indicate that the evidence was insufficient to
sustain a guilty conviction. More importantly, unlike in Chapman, independent evidence
supports the conviction under all counts. Cf. Chapman, 765 F.3d at 724, 728 (describing
multiple “unexplained discrepancies” that diminished the strength of the government’s
case). Setting aside the November 1 evidence, the jury heard testimony that officers
recovered a distribution quantity of drugs, drug-dealing contraband bearing Stafford’s
fingerprints, and firearms (one of which bore Stafford’s DNA) from Stafford’s home and
the Ford Taurus on November 2—all of which the government tied to Stafford.
Because the convictions here stand on sufficiently independent evidence, we are
satisfied, “with fair assurance,” that the government’s case against Stafford would not
have been substantially less persuasive without the November 1 evidence. United States
v. Diggs, 81 F.4th 755, 757 (7th Cir. 2023) (citing Kotteakos v. United States, 328 U.S. 750, 765
(1946)).
B
Stafford also challenges the district court’s decisions to enhance his base offense
level under two guidelines provisions. Challenges to a district court’s application of the
Sentencing Guidelines are reviewed de novo, and the court’s factual findings are reviewed
for clear error. United States v. Turnipseed, 47 F.4th 608, 614 (7th Cir. 2022).
1
The district court increased Stafford’s Guidelines offense level by four levels
pursuant to the “firearm-trafficking” enhancement under Sentencing Guidelines
§ 2K2.1(b)(5). That enhancement applies when a defendant has transferred two or more
firearms to an individual whom the defendant “knew or had reason to believe” had a
“prior conviction for a crime of violence, a controlled substance offense, or a

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misdemeanor crime of domestic violence,” as those terms are defined in the Guidelines.
U.S.S.G. § 2K2.1, cmt. n.13(A)(ii)(I), (B). The court applied the enhancement based on
Stafford’s sale of the assault rifles to the CS on October 24, 2016. In applying the
enhancement, the court reasoned that the CS had a lengthy rap sheet that included
multiple felony convictions for drug offenses and attempted armed robbery. The court
further found that Stafford must have known or had reason to believe that the CS fit the
definition of § 2K2.1(b)(5) because the two men had enjoyed a decades-long close
friendship.
Stafford contends on appeal that the enhancement cannot apply because the
government never established that the CS had been convicted of “a crime of violence, a
controlled substance offense, or a misdemeanor crime of domestic violence” as those
terms are defined in the Sentencing Guidelines. But we have since held that the
government was not required to make this showing. See United States v. Prieto, 85 F.4th
445, 448–49 (7th Cir. 2023) (rejecting the argument requiring proof that the firearm
recipient was a prohibited person). The Guidelines plainly state that, for the enhancement
to apply, the transferor of the firearms need only know or have reason to believe that the
transferee has one of the relevant convictions. U.S.S.G. § 2K2.1, cmt. n.13(A)(ii). Stafford
is therefore eligible for the enhancement as long as he knew or had reason to believe that
CS had such a conviction.
Stafford denies knowing this as well. But the CS did, in fact, have a significant
criminal history, which includes at least three convictions for controlled substance
offenses and a prior conviction for armed robbery. Stafford and the CS also shared a tight-
knit, decades-long friendship. Both pieces of evidence—undisputed by Stafford—
permitted an inference that Stafford had reason to believe that the CS had a qualifying
conviction. In making this finding, the district court did not commit clear error. See, e.g.,
Prieto, 85 F.4th at 449 (no clear error by court applying trafficking enhancement where
defendant knew transferee was on parole approximately one year before firearm sale at
issue and nothing in the record suggested that parole status would have changed in
intervening period).
2
Stafford also objects to the district court’s application of U.S.S.G. § 2K2.1(a)(4)(A).
Under it, a defendant convicted of specified firearms offenses will receive a base offense
level of 20 if he “committed any part of the instant offense subsequent to sustaining one
felony conviction of … a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). The

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district court imposed this enhancement because Stafford had a prior Illinois conviction
for delivery of cocaine. Stafford now protests that that conviction is not a “controlled
substance offense” for purposes of § 2K2.1(a)(4)(A) because Illinois defines “cocaine”
more broadly than the federal Controlled Substances Act.
Our holding in United States v. Ruth forecloses this argument. 966 F.3d at 651
(concluding that U.S.S.G. § 4B1.2(b), to which U.S.S.G. § 2K2.1 refers for the definition of
the term “controlled substance offense,” “does not incorporate, cross-reference, or in any
way refer to the Controlled Substances Act”). In Ruth, we held that a state conviction
could therefore qualify as a controlled substance offense for Guideline purposes even
when the state’s definition of the relevant controlled substance is broader than the
Controlled Substances Act’s definition of the same substance. See id. at 651–54. None of
Stafford’s arguments compel us to depart from precedent. See United States v. Ramirez, 52
F.4th 705, 712–17 (7th Cir. 2022) (declining to overrule Ruth and citing other recent cases
doing the same); Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 858 (7th Cir.
2001) (“For the sake of law’s stability, a court will not reexamine a recent decision …
unless given a compelling reason to do so.”).
III
For the foregoing reasons, we AFFIRM Stafford’s conviction and sentence.

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