                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 17-2994
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

NATHAN DRIGGERS,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
             No. 15 CR 350 — John J. Tharp, Jr., Judge.
                     ____________________

  ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019
                ____________________

    Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-
cuit Judges.
    WOOD, Chief Judge. In the wee hours of the morning on
April 12, 2015, thieves stole approximately 104 Ruger ﬁrearms
from a train sitting in a Chicago railyard. Later that day, ac-
cording to the government, Nathan Driggers purchased 30 of
those stolen guns. He wound up facing charges of being a
felon in possession of a ﬁrearm in violation of 18 U.S.C.
§ 922(g), and possession of a stolen ﬁrearm in violation of 18
2                                                    No. 17-2994

U.S.C. § 922(j). Driggers proceeded to trial, and a jury re-
turned a split verdict, ﬁnding him guilty of being a felon in
possession of a ﬁrearm, but not guilty of possessing a stolen
ﬁrearm. Driggers now appeals his conviction. He argues that
the district court improperly allowed testimony about his co-
defendant Warren Gates and gave an erroneous jury instruc-
tion on joint possession. Finding no error in the district court’s
decisions, we aﬃrm Driggers’s conviction.
                                I
   On April 12, 2015, eight men entered a Chicago railyard,
broke into a cargo train parked there, and discovered a cache
of Ruger ﬁrearms being shipped from a factory in New
Hampshire to a distributor in Washington State. By the end of
the night, these men had stolen over 100 guns.
    The government did not accuse Driggers of participating
in the actual robbery. Instead, its theory (supported by the tes-
timony of one of the robbers, Marcel Turner) was that Terry
Walker, another of the robbers, contacted Driggers shortly af-
ter the heist to set up a sale of the stolen guns. The same day,
Turner and Walker took approximately 30 of the stolen ﬁre-
arms to Driggers’s store. They met Driggers there, at which
point Driggers and Walker brieﬂy haggled over the price of
the guns and then consummated the sale. Though Turner did
not know how much Driggers ultimately paid for the 30 guns,
Turner received $1,700 for the six guns that comprised his
share.
    The government’s other trial evidence attempted to cor-
roborate Turner’s account of the gun sale. One inconvenient
fact for the prosecution was that Driggers was not on the lease
for the store where the gun sale allegedly occurred. But
No. 17-2994                                                  3

testimony from Driggers’s landlord and property manager
established that, despite his absence from the lease, the store
did in fact belong to him. Their testimony showed that Drig-
gers co-leased the store month-to-month with another man,
Yashmine Odom. Odom was apparently the store’s principal
occupant, but Driggers paid the rent for the most part and
made at least some repairs.
    Additionally, police searched Driggers’s store during their
investigation, and ATF Agent Jason Vachy described that
search in detail at trial. He explained that the agents found a
hodgepodge of merchandise (some of which appeared to be
stolen), various personal documents and items belonging to
Driggers and Odom, and a gun hidden in a tire in the
backroom. That gun’s serial number matched one of the guns
stolen during the train robbery. There was a ﬁngerprint on
that gun, but it did not come from Driggers.
   The government also presented trial testimony and phone
records that showed that shortly after Driggers allegedly pur-
chased the 30 stolen guns, he contacted Warren Gates, a co-
defendant who pleaded guilty. Before Driggers’s trial, Gates
admitted to possessing 17 of the guns from the train robbery.
Notably, during the ﬁrst four months of 2015, there were zero
contacts between Driggers’s and Gates’s cell phones, but
shortly after the train robbery, there were 46 such contacts.
Police searched Gates’s storage units and found six of the sto-
len guns. Gates confessed to possessing these guns and fur-
ther admitted that he had purchased them, as well as 11 others
from the train robbery. In his own case, Gates stated that he
purchased those guns from two of the robbers, Elgin Lip-
scomb and Alexander Peebles; in Driggers’s case, the prose-
cution argued that Gates had bought them from Driggers. The
4                                                     No. 17-2994

government further urged that the jury could infer from Drig-
gers’s contacts with Gates and Gates’s gun purchases that
Driggers possessed and sold guns from the train robbery.
                                II
                                A
   As we indicated, Driggers raises only two points on ap-
peal: one about the admission of testimony concerning Gates,
and the other about the joint-possession jury instruction. We
begin with the latter.
    Driggers does not assert that the joint-possession instruc-
tion used by the district court misstated the law. Instead he
argues that the court should not have included the instruction
because neither party’s theory of the case involved joint pos-
session, and so it only served to confuse the jury.
    We review a district court’s decision to give a jury instruc-
tion for abuse of discretion. United States v. Tanner, 628 F.3d
890, 904 (7th Cir. 2010). A joint-possession instruction is
proper where “[t]here was substantial evidence that more
than one person could have possessed the gun.” United States
v. Rainone, 816 F.3d 490, 494 (7th Cir. 2016). Indeed, we have
gone so far as to say that “a joint possession instruction is ‘nec-
essary’ when contraband is recovered from a jointly-occupied
residence.” Id. (quoting United States v. Lawrence, 788 F.3d 234,
246 (7th Cir. 2015)) (emphasis added).
    Driggers is correct that the government primarily focused
on his alleged purchase and subsequent sole possession of the
stolen guns. But he ignores the fact that the jury had before it
evidence that he and Odom jointly possessed the ﬁrearm that
the oﬃcers found in his store. Driggers co-leased the store
with Odom, and both Driggers’s and Odom’s personal
No. 17-2994                                                     5

eﬀects—including mail, a birthday card, and bank state-
ments—were found there. The owner and the property man-
ager of the store also testiﬁed that they observed both Drig-
gers and Odom exhibiting control over the store, such as by
making rent payments or oﬀering to make repairs.
   Given the substantial personal eﬀects addressed to both
Driggers and Odom found within the store, as well as the tes-
timony suggesting that both occupied the store, there was am-
ple basis for a joint-possession instruction. The district court
acted well within its discretion to provide the jury this guid-
ance.
                                B
    Driggers also complains that the introduction of evidence
about his contacts with Gates, including the evidence about
the guns from the train robbery found in Gates’s storage
locker, was improper. He ﬁrst argues that the evidence was
irrelevant under Federal Rule of Evidence 401. In addition, he
asserts that the court’s decision to admit the evidence violated
his due process rights, because the government oﬀered incon-
sistent theories about how Gates obtained the guns. A “dis-
trict court has ‘wide discretion’ when it rules on the admission
of evidence.” United States v. Boros, 668 F.3d 901, 907 (7th Cir.
2012). We thus review “a district court’s decision to admit or
exclude evidence for abuse of discretion.” Id. We review the
question whether a defendant’s due process rights were vio-
lated de novo. See United States v. Kielar, 791 F.3d 733, 736 (7th
Cir. 2015).
   In fact, Driggers’s Rule 401 argument and his due process
argument are intertwined. The potential relevance of any ev-
idence regarding Gates could be limited because, based on the
6                                                   No. 17-2994

government’s contentions in Gates’s own prosecution, it ap-
pears that Driggers did not sell Gates any of the particular
guns Gates was prosecuted for possessing. On the other hand,
if Driggers had sold any of the guns he allegedly bought from
the train robbers to Gates, evidence about the contacts be-
tween Driggers and Gates, as well as the fact that those guns
were found in Gates’s possession, would have been highly
relevant.
    In either scenario, the district court did not abuse its dis-
cretion in ﬁnding that the Gates evidence passed the thresh-
old for Rule 401. The standard for relevance is low. Tennard v.
Dretke, 542 U.S. 274, 284–85 (2004). When determining
whether evidence is relevant, we ask only whether it has
“‘any tendency to make a fact more or less probable than it
would be without the evidence’ [when] ‘the fact is of conse-
quence in determining the action.’” Boros, 668 F.3d at 907
(quoting FED. R. EVID. 401). Even if Driggers did not directly
sell Gates the guns police found in Gates’s storage locker, the
fact that Driggers had 46 contacts with a known buyer of sto-
len guns immediately after he allegedly bought 30 stolen guns
supported the government’s theory that Driggers served as
the robbers’ fence. This ﬂurry of contacts was additionally
suspicious because Driggers and Gates were not in contact at
all during the four months preceding the robbery. The district
court thus did not abuse its discretion in ﬁnding that this evi-
dence satisﬁed Rule 401.
   Before turning more directly to the due-process argument,
we explain how the Gates prosecution diﬀered from the case
against Driggers. The government ﬁrst proceeded against
Gates; that case was resolved with a plea agreement. In that
agreement, Gates admitted that he “purchased approximately
No. 17-2994                                                   7

seventeen of the ﬁrearms [from the train robbery] from co-de-
fendants PEEBLES and LIPSCOMB on or after April 13, 2015.”
Plea Agreement at 3, United States v. Gates, No. 1:15-cr-350-3
(N.D. Ill. July 19, 2016), ECF No. 173 (capitalization in origi-
nal). Gates also admitted that at the time the oﬃcers searched
his storage units, he kept 13 ﬁrearms in those units, six of
which he had bought from Peebles and Lipscomb and “seven
additional ﬁrearms unrelated to the train theft.” Id. This ver-
sion of the oﬀense—that Gates purchased 17 ﬁrearms from
Peebles and Lipscomb, with oﬃcers recovering six of those 17
guns from Gates’s storage units—was repeated by both ATF
Agent Vachy in Gates’s Presentence Investigation Report and
by the prosecution in Gates’s sentencing memorandum.
    By contrast, in Driggers’s prosecution, the government
represented to both the district court and to the jury that the
guns it had previously contended Gates bought from Peebles
and Lipscomb were in fact sold to him by Driggers. The gov-
ernment has not explained to us (or to anyone else) how these
two conﬂicting factual representations can coexist, and we are
at a loss to reconcile them.
    The question is thus what to do about this inconsistency.
The circuits are split on the question whether the prosecu-
tion’s use of inconsistent theories in multiple prosecutions vi-
olates due process. Compare United States v. Frye, 489 F.3d
201, 214 (5th Cir. 2007) (“[A] prosecutor can make inconsistent
arguments at the separate trials of codefendants without vio-
lating the due process clause.”), with Smith v. Groose, 205 F.3d
1045, 1049–52 (8th Cir. 2000) (agreeing with the Ninth Circuit
that “inconsistent prosecutorial theories can, in certain cir-
cumstances, violate due process rights”); see also Bradshaw v.
Stumpf, 545 U.S. 175, 190 (2005) (Thomas, J. concurring) (“This
8                                                     No. 17-2994

Court has never hinted, much less held, that the Due Process
Clause prevents a State from prosecuting defendants based
on inconsistent theories.”). Though several litigants have
raised this argument before us, we have thus far declined to
choose a side in this matter. We have not needed to address
the constitutional issue because the defendants who have ad-
vanced this theory were either not prejudiced by the prosecu-
tion’s behavior, see United States v. Flournoy, 842 F.3d 524, 530
(7th Cir. 2016), or because the government did not actually
“take fundamentally opposite positions in its two prosecu-
tions.” United States v. Presbitero, 569 F.3d 691, 702 (7th Cir.
2009). We likewise take a pass here, because Driggers was not
prejudiced by the government’s actions.
    A defendant is entitled to a new trial only when “there is
a reasonable possibility that the trial error had a prejudicial
eﬀect on the jury’s verdict.” Flournoy, 842 F.3d at 530. Here,
there is a simple reason that the Gates evidence was not prej-
udicial to Driggers: the jury acquitted him of the possession
of a stolen ﬁrearm charge that the Gates evidence supported.
Even if we totally disregard the Gates evidence, as well as the
other testimony and argument it bolstered, there is still suﬃ-
cient evidence to support the jury’s verdict on the other
charge. This is because the jury could ﬁnd Driggers guilty of
being a felon in possession based solely on the gun found in
his store—a gun that had no connection to Gates. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (“Once a defendant has
been found guilty of the crime charged, the factﬁnder’s role
as weigher of the evidence is preserved through a legal con-
clusion that upon judicial review all of the evidence is to be con-
sidered in the light most favorable to the prosecution.”). As
we noted earlier, Driggers’s connection to, and control over,
the store was strongly supported by the evidence. The gun
No. 17-2994                                                    9

was found hidden in a tire in the store’s backroom. This was
enough to permit the jury to convict Driggers of being a felon
in possession of a ﬁrearm in violation of 18 U.S.C. § 922(g).
    For purposes of that count, it did not matter whether the
gun was stolen. And apparently the jury was not convinced
that Driggers knew, for purposes of the other count (under 18
U.S.C. § 922(j)), that the gun in his store came from the train
robbery, because it acquitted him on that charge. Even if the
government’s theories in the Gates prosecution were incon-
sistent with those it used against Driggers, there is thus no
reasonable possibility that this tactic created a prejudicial ef-
fect on the jury’s verdict.
                               III
   Because the district court did not improperly instruct the
jury, and because Driggers suﬀered no prejudice from any er-
ror that may have existed in the treatment of the Gates evi-
dence, we AFFIRM Driggers’s conviction and sentence.
