In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1267

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

M ARCUS D. C ANADY,
                                           Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
          No. 07 CR 61—Barbara B. Crabb, Chief Judge.



    A RGUED O CTOBER 22, 2008—D ECIDED A UGUST 24, 2009




 Before C UDAHY, M ANION, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Marcus Canady, a convicted
felon, was found by a police officer in an overturned
SUV with a semi-automatic weapon in his waistband.
He was charged with unlawful possession of a firearm
and ammunition. At trial, in addition to the officer’s
testimony, the government introduced evidence
linking Canady to a home invasion and shooting earlier
that night, where he used the same weapon. The jury
convicted Canady.
2                                               No. 08-1267

   Canady appeals his conviction and sentence because,
he contends, the home invasion and shooting evidence
was inadmissible, the district court improperly denied
his theory of defense jury instruction, and the evidence
did not support the district court’s determination at
sentencing that he used the gun in an attempted murder.
We reject Canady’s first argument because the home
invasion and shooting evidence were integral in estab-
lishing his possession of the firearm. Next, we agree
with the district court’s determination that the evidence
did not support Canady’s theory of defense instruction,
and we also conclude that the evidence supported the
district court’s findings during sentencing. Therefore,
we affirm Canady’s conviction and sentence.


                   I. BACKGROUND
  In the early morning on April 2, 2007, Brent Krause
woke to discover an intruder, later identified as Duane
Vance, in his living room bleeding from his face. Moments
later, Krause heard the sound of breaking glass and saw
another man enter through the front door. According to
Krause, the second intruder displayed a small handgun
and commanded him to follow Vance who, by that time,
had fled toward the kitchen. Eventually, the commotion
downstairs woke Krause’s roommate who proceeded
to yell at the intruders, threatening to call the police. The
second armed intruder then ran out of the house
through the front door. At the same time, Krause ran to
the garage to get his shotgun and then outside to pursue
him. Krause never caught up, but, through the scope of
No. 08-1267                                              3

his shotgun, Krause saw him enter a light gray compact
SUV and take off swerving down the road. Vance, who
was still bleeding from his face, ran across the street
and collapsed by the side of the road.
  That morning, Tony Pucillo, a Madison, Wisconsin police
officer, received an emergency call regarding the home
invasion at Krause’s residence. He turned on his emer-
gency lights and headed towards the scene of the crime.
On the way, approximately a mile and a half from
Krause’s home, he spotted a gray Nissan Murano SUV
rolled over at the side of the road. Officer Pucillo testi-
fied that the headlights were on, and, based on the
smoke and dust coming from the vehicle, it appeared
that the accident had “just happened.” He stopped to
investigate and found Canady inside the vehicle. Officer
Pucillo said that he immediately noticed a semi-automatic
nine millimeter handgun tucked in Canady’s waistband
and that he “ran” the gun back to the hood of his car.
Kathryn Becker, a City of Fitchburg police officer, also
saw the overturned SUV while responding to the home
invasion. She testified that she accompanied Canady to
the hospital, and, although he wasn’t bleeding, she saw
blood on Canady’s jacket, pants, and shoes. Based on the
evidence from the accident, a grand jury returned a
superseding indictment charging Canady with posses-
sion of a firearm after having been convicted of a felony,
in violation of 18 U.S.C. § 922(g).
  The government believed that the home invasion and
accident that occurred in the early morning on April 2
were related. Specifically, its theory was that Canady
4                                             No. 08-1267

was the second intruder who entered the house with the
gun, and that he had shot Vance in the head after a dis-
agreement about drugs, followed him into Krause’s
home, and escaped in the Nissan Murano after Krause’s
roommate threatened to call the police. Nonetheless, the
government filed a motion in limine to exclude evidence
of the home invasion and shooting, provided that Canady
did not present a defense denying that the officer found
him with the gun in his waistband. The government
eventually withdrew its motion in limine, however,
because Canady indicated that he planned to use
evidence of the events that occurred before the accident
to demonstrate that Officer Pucillo’s story was false.
  As a result, the government presented evidence at trial
to link Canady to both the home invasion and Vance’s
shooting. This included the testimony of Brent Krause
who stated that the second intruder had hair styled in
cornrows, wore a North Carolina jacket, and escaped in
a light gray compact SUV—all of which closely matched
the officers’ observations at the accident scene. The gov-
ernment also presented a DNA analyst who testified
that Vance’s blood was found in the SUV and on the
muzzle of the gun. Canady, on the other hand, denied
that he had a gun in his waistband and argued that a
third person was responsible for the shooting and home
invasion. The jury found Canady guilty.
  At the sentencing hearing, the district court adopted
the presentence report’s (“PSR”) determination that
Canady used the gun in connection with the attempted
murder of Vance. This allowed the court, under U.S.S.G.
No. 08-1267                                                5

§ 2K2.1(c)(1), to sentence Canady using the base offense
level for attempted murder, which was 27. See U.S.S.G.
§ 2A2.1(a)(2). The court also added two levels because
the victim sustained serious bodily injury, U.S.S.G.
§ 2A2.1(b)(1), and, combined with Canady’s criminal
history, this resulted in an advisory guideline range of 188-
235 months. As an alternative, the court noted that even
without the attempted murder finding, Canady
would have qualified for a four level enhancement for
breaking into Krause’s home with a gun, and an addi-
tional two level enhancement for using a large capacity
semiautomatic firearm. U.S.S.G. § 2K2.1(a)(3). The
court sentenced Canady to 120 months, the statutory
maximum term of imprisonment for his charge. Canady
appeals his conviction and sentence.


                      II. ANALYSIS
A. Admission of Home Invasion Evidence Was Proper
  During trial, the government presented testimony
linking Canady to the home invasion and shooting. At
the time, Canady did not object to the introduction of
this testimony. He now argues, however, that the
district court erred in admitting this evidence because
it only showed his propensity to commit the crime
charged, and, as a result, deprived him of a fair trial.
Before reaching the merits, we first address the govern-
ment’s claim that Canady waived this argument. The
government initially presented a motion in limine to
exclude evidence of the home invasion and shooting on
the condition that Canady did not present a defense
6                                                  No. 08-1267

denying that he possessed the firearm. Canady did not
agree to these terms and indicated that he intended to
use “evidence of a series of events” that occurred before
the accident to show that he did not have a firearm in
his waistband. This, according to the government, was a
strategic choice which now precludes Canady from
challenging the admissibility of the evidence on appeal.
  The first question before us is whether Canady waived
his right to challenge the admission of the evidence, which
would preclude us from reviewing this argument on
appeal, or whether he merely forfeited it, which would
permit appellate review for plain error. Waiver is the
intentional relinquishment of a known right, while for-
feiture is the failure to assert a right in a timely fashion.
United States v. Irby, 

, 655 (7th Cir. 2009) (citing
United States v. Olano, 

, 733 (1993)) (quotation
marks omitted). Waiver implies a knowing and inten-
tional decision, but a forfeiture is more akin to an ac-
cidental or negligent omission. See United States v. Jaimes-
Jaimes, 

, 848 (7th Cir. 2005) (“The touchstone
of waiver is a knowing and intentional decision.”). In
most cases, when there is no sound strategic reason for
failing to raise an issue before the district court, the
omission is more appropriately characterized as a forfei-
ture rather than a waiver. See, e.g., United States v. Spells,

, 747 (7th Cir. 2008) (noting that the
waiver/forfeiture distinction required the court to deter-
mine whether the defendant’s failure to object was part
of a sound strategic decision); 

(reviewing defendant’s argument for plain error
when it could not conceive of any strategic reason for the
defendant’s failure to raise the issue at trial).
No. 08-1267                                                7

  The government proposes that Canady waived his
objection to the home invasion and shooting evidence
because he opposed the government’s pretrial motion in
limine to exclude that same evidence. Canady did indeed
oppose the motion in limine, but that was because the
government’s motion was contingent upon Canady’s
agreement not to contest the possession issue. If Canady
had not opposed the motion, then he would essentially
have given up his entire defense. The motion in limine
came with a catch, one that would have crippled Canady’s
defense. Under these circumstances, Canady’s opposition
to the motion is not necessarily inconsistent with the
argument that the evidence should have been excluded.
  This issue is further complicated, however, by Canady’s
attorney’s statement at the pretrial conference. He
stated that he intended to use evidence from events
prior to the accident to cast doubt over Officer Pucillo’s
testimony, and the government suggests this was a strate-
gic choice that invokes waiver. In United States v. Clark,

, 578 (7th Cir. 2008), for instance, we held
that a defendant waived his challenge to the admission
of certain evidence because he agreed before trial that
the evidence was admissible and indicated his intent to
use that evidence as part of his trial strategy. Here,
Canady’s situation is distinguishable. First, the attorney’s
statement in this case was made not to convince the
judge to admit the evidence, but to reject the govern-
ment’s conditional motion in limine. Canady did not
argue that the evidence was admissible, and the judge
did not make a ruling on its admissibility. Cf. United States
v. Tann, 

, 872 (D.C. Cir. 2008) (finding a
8                                               No. 08-1267

forfeiture rather than a waiver where defendant merely
acquiesced, but did not invite the district court’s
decision to admit evidence). Also, unlike the defendant
in Clark, Canady’s defense strategy at trial did not rely
on any of the evidence that he now challenges, and the
government points to no other strategic reason for
Canady’s failure to object. See 

(finding forfeiture where there was no sound
strategic reason for defendant’s failure to object at trial).
Because “[w]aiver principles should be construed
liberally in favor of the defendant,” 

(citing
United States v. Sumner, 

, 539 (7th Cir. 2001)),
we give Canady the benefit of the doubt and construe
his failure to object as a forfeiture.
  Even so, this provides little benefit to Canady because
he falls short of demonstrating plain error. Under this
standard of review, we must determine whether: (1) an
error occurred, (2) that was plain, (3) that affects the
defendant’s substantial rights, and (4) seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. United States v. McMath, 

, 667
(7th Cir. 2009) (citing Johnson v. United States, 

, 466-67 (1997)). Canady contends that the testimony
of three witnesses—Krause, Officer Kelly Dougherty, and
Officer Tim Smith—should have been excluded under
Rules 403 and 404(b) of the Federal Rules of Evidence.
Krause, the victim of the home invasion, provided a
description of the armed intruder that resembled Canady.
Officer Dougherty discussed her initial encounter with
Vance as she responded to a home invasion call at
Krause’s residence. She stated that Vance was “covered
No. 08-1267                                                9

in blood from head to toe” and that he appeared to
have been shot in the face. And Officer Smith’s
testimony concerned his examination of the gun found at
the accident scene as well as the ammunition he retrieved
from it. At one point, Officer Smith stated that he was
wearing a protective suit to reduce the possibility of
contamination in case the evidence was used again. The
government concedes that the evidence of the home in-
vasion and shooting was inadmissible under Rule 404(b)
but argues that it was intricately related to the charged
crime and was therefore admissible to prove an element
of possession.
  We disagree with Canady’s interpretation of Rule 404(b)
and we think the government concedes too much.
Rule 401 defines relevant evidence as “evidence having
any tendency to make the existence of any fact that is of
consequence . . . more probable or less probable than it
would be without the evidence,” and Rule 402 states
generally that all relevant evidence is admissible unless
there are other reasons for its exclusion. The relevance of
the home invasion and shooting is readily apparent; if
the parties contest whether Canady possessed the gun
in the SUV, evidence that he was seen with (and may
have used) the gun minutes beforehand increases the
likelihood that he possessed the gun in the car. Rule 404(b),
which is a rule of exclusion, says that evidence of other
crimes is inadmissible to show one’s character but may be
admissible for other purposes, including motive, intent,
knowledge, and absence of mistake or accident. In apply-
ing this rule, we consider whether:
10                                               No. 08-1267

     (1) the evidence is directed toward establishing a
     matter in issue other than the defendant’s propen-
     sity to commit the crime charged; (2) the evidence
     shows that the other act is similar enough and
     close enough in time to be relevant to the matter
     in issue; (3) the evidence is sufficient to support a
     jury finding that the defendant committed the
     similar act; and (4) the evidence has probative
     value that is not substantially outweighed by the
     danger of unfair prejudice.
United States v. Vargas, 

, 554 (7th Cir. 2008)
(citing United States v. Diekhoff, 

, 617 (7th Cir.
2008)). Canady argues that the home invasion evidence
was only directed toward his propensity to commit the
crime charged, but he ignores the fact that possession
of the handgun was the central issue at trial. “Possession
of a firearm is a continuing offense which ceases only
when the possession stops.” United States v. Fleischli, 

, 658 (7th Cir. 2002) (superseded by statute on
other grounds). So if the government could show
that Canady used the same firearm shortly before the
accident, that fact would also support a guilty verdict
for Canady’s illegal possession charge. Cf. 

(7th Cir. 2002) (finding that the district court
did not err in admitting evidence of defendant’s
firearm possession in other districts in addition to the
district where he was charged with possession of a
firearm by a felon). That is exactly what happened here.
Officer Pucillo claimed to have found a firearm in Canady’s
waistband, Canady challenged the accuracy of Pucillo’s
report, and the government presented evidence that
No. 08-1267                                              11

indicated that Canady used the same gun minutes
before the accident, which, if true, would also support
a guilty verdict. The home invasion evidence was
clearly directed towards establishing that Canady pos-
sessed the firearm.
  We must also reject Canady’s argument that the
evidence was insufficient to demonstrate that he was the
second intruder in the home invasion. Although none
of the witnesses personally identified Canady, Krause
testified that the second intruder had hair styled in
cornrows, wore a blue and white jacket, and fled in a
light gray compact SUV. This description closely
matched Canady’s appearance when Officer Pucillo
found him in an overturned gray Nissan Murano, a
compact SUV. The home invasion and shooting evidence
also had probative value that was not substantially out-
weighed by the danger of unfair prejudice. See Fed. R.
Evid. 403. Although Officer Dougherty’s statement that
Vance was “covered in blood from head to toe” was
largely unnecessary to prove the crime charged, the
events surrounding the home invasion were instru-
mental in establishing a contested issue—Canady’s pos-
session of the firearm. The grisly details of Vance’s
injury explained why Canady had the firearm in the first
place, and also lent support to Officer Pucillo’s observa-
tions. Whatever prejudice Canady suffered from this
evidence does not substantially outweigh its probative
value, and its admission, at the least, was not plain error.
  As a result, we need not consider the government’s
argument that the evidence was admissible under the
12                                              No. 08-1267

intricately related doctrine. We noted in United States v.
Taylor, 

, 734 (7th Cir. 2008), that this formula
was “unhelpfully vague” and that courts had not agreed
on its proper application—whether it was limited to
evidence of the charged crime or whether it included
evidence of another crime introduced solely to
“complete the story.” 

see also United States v.
Harris, 

, 807 (7th Cir. 2008). This case may
very well present the type of scenario for which the
doctrine was originally intended. Evidence of Canady’s
firearm possession inevitably reveals the other crimes,
and vice versa, because Canady committed several crimi-
nal acts (the home invasion, shooting, and unlawful
possession of a firearm) within a very short time span,
all while possessing the firearm. See 

. However, as we recognized before, almost all
evidence that is admissible under this doctrine would
fall within one of the exceptions in Rule 404(b), and this
case is no different. 

government’s invita-
tion to apply the doctrine here would be redundant
and would only encourage its use in more difficult cases
to skirt around the restrictions in the Federal Rules of
Evidence. See 

no reason to rely on the intri-
cately related doctrine to reach the conclusion that the
district court did not err in admitting the home in-
vasion and shooting evidence.


B. Canady Was Not Entitled to His Theory of Defense
   Jury Instruction
  Canady proposed jury instructions that stated, in part:
“If you believe that someone other than Mr. Canady
No. 08-1267                                              13

shot Mr. Vance, left the gun in the vehicle, and Mr. Canady
drove the vehicle away from the scene of the shooting
without knowledge that the gun was in the car . . . you
may not find the defendant guilty . . . .” The court refused
to issue this instruction because, it concluded, the
evidence did not support Canady’s theory and it would
only mislead the jury. Instead, the court defined “posses-
sion” of an object as “the ability to control it” and in-
structed the jury that “[p]ossession may exist even
when a person is not in physical contact with the
object, but knowingly has the power and intention to
exercise direction or control over it.” Canady argues
that the court erred when it rejected his proposed jury
instructions. We review de novo the district court’s
decision not to instruct the jury on a theory of defense.
United States v. White, 

, 461 (7th Cir. 2006).
   A defendant is entitled to a jury instruction on a theory
of defense if: (1) the instruction is a correct statement
of law; (2) the evidence supports the theory of defense;
(3) the theory of defense is not part of the charge; and
(4) failure to provide the instruction would deny the
defendant a fair trial. United States v. Sawyer, 

, 710 (7th Cir. 2009). Canady’s proposed instruction
essentially told the jurors to find him not guilty if they
believed that someone else shot Vance and placed the
weapon in the car. Although a correct statement of logic
(if he didn’t do it, then he’s not guilty), the instruction
doesn’t provide any information that is not already
covered by the charge to the jury. The jury instructions
specifically stated that “possession” meant the ability to
control, or “knowledge of the power and intent to
14                                                 No. 08-1267

exercise control over, the weapon.” So if another person
shot Vance and placed the weapon in the car, Canady
could not have possessed the gun under either instruc-
tion. Moreover, Canady’s theory of defense is unsup-
ported by the evidence. Canady only needs to demon-
strate a foundation in evidence, “however tenuous,” to
support his theory, but a “ ‘mere scintilla’ of evidence. . . is
not sufficient to warrant a defense instruction.” United
States v. Buchmeier, 

, 427 (7th Cir. 2001) (quot-
ing United States v. Wofford, 

, 789 (9th Cir.
1997)). The evidence which he claims pointed to the
presence of a third person—a scribbled note found in the
vehicle with another man’s name, and Vance’s statement
to police that he was driving two men before he was
shot—says nothing about the shooter’s identity. The
mere presence of a third person at some point before
the shooting, without more, does not support Canady’s
theory that the third person was the shooter. Therefore, the
district court correctly concluded that Canady was not
entitled to his theory of defense instruction.


C. Sufficient Evidence Supports Canady’s Sentence
   Canady also challenges the district court’s application
of the sentencing guidelines. In a situation where a defen-
dant used a firearm “in connection with the commission
or attempted commission of another offense,” U.S.S.G.
§ 2K2.1(c) (the guideline for unlawful possession of a
firearm) allows the court to sentence the defendant ac-
cording to the guideline for the attempt of the second
offense, but only if the new base offense level is higher
No. 08-1267                                                  15

than it would have been under the original guideline. As
a result, the district court found that the correct guide-
line to use was U.S.S.G. § 2A2.1(a)(2) because Canady
used the gun in connection with the attempted murder
of Vance. Canady argues that the cross-reference was
improper because the evidence linking him to the at-
tempted murder was unreliable. We review the district
court’s application of the sentencing guidelines de novo,
United States v. Abbas, 

, 662 (7th Cir. 2009), but
where the court’s application of the guidelines are
based on factual findings, we review for clear error,
United States v. Wagner, 

, 1089 (7th Cir. 2006).
  Although Vance identified Canady as the shooter,
Canady argues that the court erred in making this find-
ing. Canady claims that Vance’s statements to the police
were unreliable because he was a suspect under the threat
of police punishment and that none of the evidence before
the court corroborated his accusations. These circum-
stances do not help Canady’s case, however, because a
motive to lie, or even a record of telling lies, does not
render Vance’s statements incredible as a matter of law. Cf.
United States v. Meyer, 

, 326 (7th Cir. 2000)
(holding that sentencing judge was not precluded from
relying on testimony from witnesses who had impure
motives, criminal histories, and a record of telling lies); see
also United States v. Johnson, 

, 797 (7th Cir. 2007)
(“[E]ven the testimony of a potentially biased witness is
sufficient to support a finding of fact.”) (citing United States
v. Zehm, 

, 514 (7th Cir. 2000)). Also, Krause’s
description of the armed intruder (which bore a striking
resemblance to Canady), the discovery of Vance’s blood on
16                                            No. 08-1267

Canady’s jacket, and Officer Pucillo’s testimony easily
corroborate Vance’s statements. The district court also
provided alternate grounds for the sentencing enhance-
ments, but we need not address them because the record
clearly supports its initial finding that Canady committed
attempted murder. The district court properly applied the
cross-reference in section 2K2.1(c) and Canady is not
entitled to a remand for resentencing.


                  III. CONCLUSION
  For these reasons, we A FFIRM Canady’s conviction and
sentence.




                          8-24-09