United States v. Ramone Mockabee , 763 F.3d 777 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 11-2267, 11-2288, 11-2535 & 11-2687
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH JONES, RAMONE MOCKABEE,
DEVON YOUNG and ELISHA DRAKE,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-cr-00003-SEB-KPF — Sarah Evans Barker, Judge.
____________________
ARGUED MAY 29, 2013 — DECIDED AUGUST 18, 2014
____________________
Before WOOD, Chief Judge, and BAUER and TINDER, Circuit
Judges.
TINDER, Circuit Judge. Beginning in August of 2009, the
Indianapolis Metropolitan Police Department (IMPD) and
the FBI conducted a coordinated investigation of a suspected
cocaine-distribution organization operating in the Indianap-
olis area. The two law enforcement agencies employed a va-
2 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
riety of investigative techniques, including interviews of
confidential informants and suspects, surveillance, staged or
controlled drug purchases, and consensual (on one side) re-
cording of telephone conversations. In addition, the investi-
gation utilized court-authorized pen registers of telephone
traffic, wiretaps of telephone conversations, and interdiction
stops of selected individuals, which were often initiated on
the basis of information gleaned from those wiretaps.
This coordinated law enforcement operation continued
until January 20, 2010, when a series of searches and arrests
were effectuated. A federal grand jury in the Southern Dis-
trict of Indiana then issued an indictment (and subsequently,
a superseding indictment) that leveled charges related to the
distribution of drugs against twenty defendants, including
the appellants in this case, Ramone Mockabee, Kenneth
Jones, Elisha Drake, and Devon Young. Jones, Drake, and
Young contested the charges against them at a jury trial, but
were all convicted. Mockabee pleaded guilty.
We will discuss the particulars of the counts of conviction
and the penalties imposed later. For now, we note that all
appellants individually raise a variety of pretrial, trial, and
sentencing issues, and we have consolidated their appeals.
Ultimately, we affirm the convictions that Jones, Drake, and
Young now appeal, but we vacate the sentences of Mocka-
bee, Jones, and Drake, and remand their cases for resentenc-
ing. Before we tackle the multitude of separate issues raised
by each appellant, however, we will first discuss the evi-
dence and procedures common to all of them, and then dis-
cuss specific facts relating to each one in turn.
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 3
I. Background on the Evidence
In this cocaine-distribution organization, appellant
Mockabee was the central figure. Mockabee obtained his
supply of powder cocaine from Dominic Robinson and Da-
mon Luter. After obtaining powder cocaine, Mockabee
stored it at a house located at 781 West 25th Street in Indian-
apolis, which was his center of operation. There he would
also cook some of the powder into crack cocaine. Mockabee’s
distribution method functioned through a regular routine as
follows. His customers would telephone him, and through
the use of coded language—asking questions such as, “Are
you down the way?”—they would express their interest in
acquiring cocaine. If the inquiry met with a favorable re-
sponse, the customer would travel to the 25th Street resi-
dence and knock on the back door. Upon hearing a knock,
Mockabee would admit only one person at a time, even if
several were lined up outside the residence waiting to enter.
Once inside the 25th Street residence, customers would
either be allowed to go up to the kitchen and deal with
Mockabee, or they would go downstairs to deal with a sepa-
rate supplier named Diomoni Small. One customer, Seron
Poole, testified at trial that once or twice a week, he had pur-
chased one to two ounces in this manner from Mockabee be-
ginning in the fall of 2008 and lasting until the summer of
2009. Another customer, Devon Hudgins, testified that he
had purchased between one-eighth and three-eighths ounces
of crack from Mockabee two or three times a month from the
summer of 2009 until December of that year.
Utilizing court-authorized wiretaps, the coordinated FBI-
IMPD investigation monitored four target cell phones from
late November 2009 through January of the following year.
4 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
No. 11-2267 App. Dkt. 78-1, 20-27. The case agent in charge
of the wiretap investigation was IMPD Detective Ryan
Clark, who was a member of the FBI Safe Streets Task
Force. 1 At the joint trial of Jones, Drake, and Young, Detec-
tive Clark testified that the principal users of these four tar-
get phones were Mockabee, Small, Lonnie Belmar (another
supplier operating from a residence nearby at 736 West 25th
Street), and Robinson. No. 11-2267 App. Dkt. 78-1, 20-27.
The wiretapping of these four target phones resulted in
the interception of over 10,000 telephone conversations. At
trial, the government played recordings and provided writ-
ten transcripts of several intercepted phone calls in an at-
tempt to link the appellants to the cocaine-distribution or-
ganization. But because the participants in these intercepted
phone conversations did not “use words like ‘cocaine,’
‘crack cocaine,’ or ‘powder cocaine,’” Detective Clark pro-
vided opinion testimony about the meaning of the words
actually used. Clark asserted that participants in these con-
versations were speaking in a “coded language” in an at-
tempt to hide their cocaine-distribution activities. No. 11-
2267 App. Dkt. 78-2, 97. Hudgins similarly testified that the
speakers in phone conversations avoided using words like
“crack cocaine” and “crack” because if someone was listen-
ing, “then they’d know what we was talking about.” Trial
Tr. vol. 1, 95–96, Jan. 10, 2011. In addition to the wiretapped
phone calls and Clark’s supporting testimony, the govern-
ment presented testimony from individuals who had been
involved in the conspiracy as well as testimony from other
1 The FBI Safe Streets Task Force is composed of FBI agents and local law
enforcement officers who “concentrate[] on gang investigations, criminal
enterprise investigations, bank robberies, and violent crimes.”
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 5
law enforcement officials. We turn to an examination of the
evidence relevant to each of the three individual appel-
lants—Drake, Young, and Jones—who went to trial.
A. Evidence Relevant to Drake
The first overheard conversation introduced at trial
against Drake began on November 27, 2009, when Drake
asked Mockabee if she could “holler at” him. Detective Clark
testified that, based on his training and experience, Drake
was asking Mockabee if she could purchase crack cocaine
from him. No. 11-2267 Dkt. 78-2, 121-22. A few weeks later,
on December 14, Drake asked Mockabee if she could “slide
through.” Mockabee responded by asking her an unusual
question: “Is it the same address?” Drake replied that it was.
Clark told the jury that “same address” was a coded term
meaning the same amount of cocaine Drake had acquired
during her last purchase. Because Drake had previously or-
dered “one,” Clark believed that Drake was asking Mocka-
bee if she could come to the 781 West 25th Street residence
so she could purchase one ounce of crack cocaine.
On the witness stand, Clark soundly rebutted any sug-
gestion that “same address” referred to an actual street ad-
dress, noting, “Ms. Drake is driving to Mr. Mockabee. He’s
stationary at a location. He wouldn’t ask the address of
where he already was.” Id. at 171-72. Drake and Mockabee
spoke again that day, approximately six hours later. In that
conversation, Drake requested permission to “fly through
real quick,” to which Mockabee responded by asking
whether she wanted the “same address.” Clark again ex-
plained that he understood “same address” to mean the
same amount of cocaine as before. No. 11-2267 App. Dkt. 78-
3, 5-6. Clark’s interpretation was consistent with Hudgins’s
6 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
testimony that “address” was a common code word Mocka-
bee used, and when Mockabee asked for the address, he was
asking how much crack Hudgins wanted.
Drake and Mockabee were overheard talking again the
next day, with Drake inquiring whether he was “ready.”
Mockabee responded that he was “shut down.” Although he
was “putting his apron on the last stuff,” he presently “had
nothing but cataracts,” and it would “probably be tomor-
row.” Detective Clark interpreted Mockabee’s remarks to
mean that “[Mockabee] had already sold the last of” his co-
caine, he presently had nothing but marijuana, and it would
probably be tomorrow before he had cooked more crack to
sell. No. 11-2267 App. Dkt. 78-3, 5-6. This testimony was
supported by Hudgins’s testimony that when he called
Mockabee on the phone he would say something like “are
you ready for me,” or “are you down the way,” which
meant that he wanted to obtain some crack cocaine. Trial Tr.
vol. 1 96, Jan. 10, 2011. Hudgins also testified that when
Mockabee told him, “I’m shut down,” Hudgins understood
him to mean that he had no crack cocaine. Id. at 109. Finally,
Hudgins testified that when Mockabee said he was “putting
my apron on” Mockabee meant that he was cooking cocaine
into crack. Trial. Tr vol. 1, 98.
Six days later, on December 21, Drake called Mockabee,
asking, “Still nothin’?” to which he responded, “I ain’t called
you yet.” Clark interpreted this conversation as an inquiry
about the availability of cocaine with a negative response.
Then five days later, Drake was overheard asking Mockabee
if he was “still out.” Mockabee responded, “[I]t’ll probably
have to be tomorrow.… I have to put that shit together.”
Clark concluded that “shit” referred to cocaine, and that
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 7
Mockabee needed to get more cocaine to distribute to Drake.
No. 1-2267 App. Dkt. 78-3, 22-23.
Mockabee and Drake continued to have similar conversa-
tions over the course of the next two weeks. On December
28, 2009, Mockabee told Drake, “Ain’t nuttin’ yet. I ain’t
called you yet, Kelly,”—Kelly was a nickname of Drake’s—
which Clark interpreted to mean that Mockabee “still
ha[d]n’t obtained any cocaine.” Id. at 23-24. On December 31,
Drake again asked Mockabee if she could “slide through.”
Id. at 28. On January 4, 2010, Drake asked Mockabee if she
could “holla” at him, which Clark interpreted to mean
“come and make a purchase of crack cocaine from Mocka-
bee.” Id. at 39. A little over an hour later, Drake asked Mock-
abee if he was “ready,” and he responded affirmatively.
Clark’s take on that conversation was that “ready” meant
“ready to make a sale of crack cocaine” to Drake. Id. at 40.
Hudgins similarly testified that when Mockabee said that he
was “ready to take care of something” it meant that he “still
wasn’t ready, … he still had to cook” the crack cocaine. Trial
Tr. vol. 1, 112, Jan. 10, 2011. This conversation between
Drake and Mockabee followed Mockabee’s receipt of a kilo-
gram of cocaine from Damon Luter by about four hours.
Finally, on January 9, 2010—in what may have been a
pivotal conversation with respect to the government’s theory
that Drake was a member of the Mockabee cocaine-
distribution conspiracy—Mockabee told Drake, “[Y]ou doin’
some, uh … slippin’ in your pimpin’. You need to be careful,
man, what you doin.’” Detective Clark explained that in this
remark, Mockabee was “cautioning Ms. Drake on how she’s
handling her [drug trafficking] business transactions.” Drake
responded to Mockabee’s comment by denying that she had
8 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
been “trippin’ on shit,” and by assuring Mockabee that he
could “talk about my business, but you about the only one
that can … my business is your business … just like yours is
mine.” No. 11-2267 App. Dkt. 78-3, 53.
In addition to Drake’s conversations with Mockabee,
Clark and his team overheard Drake’s conversations with
other involved parties via wiretap. For example, on Novem-
ber 8, 2009, they overheard Drake asking Lonnie Belmar if
she could come “holler at” him. When Belmar gave an af-
firmative response, Drake then told Belmar, “I’m ‘bout to go
holler at her real quick and I’ll be back to holler at you.”
Clark testified that this statement meant Drake had to meet
with one of her cocaine customers before she could meet
with Belmar to purchase cocaine. No. 11-2267 Dkt. 78-2, 122-
23.
Drake was also intercepted during a December 12, 2009,
phone conversation with Belmar, in which she mentioned
law enforcement activity in the neighborhood. She told
Belmar that the police “got a nigga stretched out in the al-
ley” near the house from which Belmar distributed crack co-
caine. She also said, “[Y]ou all make sure you be careful
when you all head to the hood.” Clark described this con-
versation as a warning to Belmar about police activity near
his crack distribution location. Drake had apparently been in
the neighborhood to witness the law enforcement activity
because she “had one of [her] stings call … want[ing] some.”
Clark told the jury that “sting” referred to a cocaine custom-
er, and “some” meant cocaine. In this conversation, Drake
further remarked to Belmar that although she “didn’t have
shit on [her],” she had “seen all that” and “was like shit, I’m
gettin’ the fuck away from here.” Belmar responded by ask-
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 9
ing if Drake had called “Mone.” Clark explained that
“Mone” referred to the defendant Ramone Mockabee. No.
11-2267 Dkt. 78-2, 153.
B. Evidence Relevant to Young
The government also presented wiretapped conversa-
tions involving appellant Young. Specifically, it presented
intercepted conversations between Young and Belmar as
well as between Young and Mockabee. Of all the conversa-
tions replayed at trial for use against Young, perhaps the
most damaging conversation involved Belmar.
Before the prosecution played a recording of the tele-
phone conversation between Young and Belmar from De-
cember 8, 2009, Detective Clark first provided some back-
ground about the process of turning powder cocaine into
crack cocaine, noting, “Powder cocaine is taken and mixed
with a certain amount of cutting agent, usually baking soda.
Water’s added to that. It’s boiled. In the boiling process, the
oils and the moisture in the cocaine evaporate, and you’re
left with a hard, solid substance, which is crack cocaine.” No.
11-2267 Dkt. 78-2, 143–44. The prosecution then played the
December 8th conversation, in which Young was overheard
telling Belmar, “My person has some software, it won’t get
hard when you cook it.” Belmar responded by advising
Young to “melt it down,” “pour the water off,” “throw [bak-
ing] soda on it,” and “keep stirring it up.” Young later told
Mockabee that the person with the software “owe[d]” him.
Detective Clark testified that the “person” with the trouble-
some “software” discussed in this conversation was likely
one of Young’s customers. Clark further suggested that this
particular customer was in a “fronting” relationship with
Young, such that Young had given cocaine to this customer
10 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
“on consignment,” and the customer now owed Young
money “on the back end.” No. 11-2267 Dkt. 78-2, 144–48.
Young’s wiretapped conversations with Mockabee cer-
tainly did not help his case either. For example, the prosecu-
tion played a recording of a January 7, 2010 conversation, in
which Young was overheard telling Mockabee that he “was
trying to come up this way,” and Mockabee responded, “It’d
be a couple hours.” No. 11-2267 Dkt. 78-3, 42. Detective
Clark interpreted this conversation to mean that Young
wanted to purchase cocaine from Mockabee, but Mockabee
was not presently available. In subsequent conversations
that day, Young continued to ask Mockabee if he was
“ready.”
Once Mockabee responded affirmatively in a conversa-
tion on January 8 (by saying, “I’ll be there in ten minutes”),
Young told Mockabee that he “probably needed the same
thing.” Clark interpreted this statement to mean that Young
needed the “same amount of cocaine that he had previously
obtained from Mr. Mockabee.” Id. at 44. Based on this inter-
pretation of the January 8 conversation, law enforcement be-
lieved that a drug transaction between Mockabee and Young
was imminent at the 781 West 25th Street residence. As a re-
sult, law enforcement officers stopped Young’s vehicle after
it left the residence that day. Finding Young and his associ-
ate, Gary Davis, in the car, police recovered 41.9 grams of
powder cocaine from Davis’s crotch area.
At trial, three witnesses—Gary Davis, Ernest French, and
Brooke Taggart—all testified that Young was more than just
a mere buyer of cocaine; rather, he was actively engaged in
the sale of cocaine to others. Davis, an Indianapolis native
who had been using illegal drugs since age twenty, spent the
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 11
three years between 2005 and 2008 in Kentucky getting clean
and sober. Upon moving back to Indianapolis, Davis
promptly became reacquainted with two of his old friends:
Young and crack cocaine. No. 11-2267 App. Dkt. 78-2, 30-39.
Davis’s rekindled friendships soon convinced him to begin
working for Young; Young, in turn, would compensate Da-
vis in crack cocaine. According to Davis’s testimony, this ar-
rangement began after Young approached him in October
2008 and asked Davis to accompany him to Columbus, Indi-
ana. Davis agreed to ride with Young, and thus began
Young’s and Davis’s weekly trips to Columbus, which con-
tinued until their interdiction stop on January 8, 2010.
On these weekly trips, Young would hand Davis an
amount of crack cocaine (typically one ounce) for Davis to
hide in his underwear in order to avoid detection by law en-
forcement. Next, the two men would drive to either an
apartment or a parking lot in Columbus. Davis would then
hand the crack cocaine back to Young upon arrival, and
Young would deliver the crack to his customers and collect
payment. These customers, according to Davis, included
both Ernest French and Brooke Taggart. No. 11-2267 App.
Dkt. 78-2, 39-47.
French, like Davis, also testified at trial for the prosecu-
tion. French indicated that from the spring of 2008 until Jan-
uary 2010, he purchased crack cocaine from Young during
his trips to Columbus. With the exception of one ninety-day
break, French bought one to two ounces of crack cocaine
every week during this two-year period. On some occasions,
Young advanced (that is, fronted) the cocaine to French
without payment. French corroborated that Davis was with
Young for some of the trips but indicated that another per-
12 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
son rode along instead of Davis on some occasions. No. 11-
2267 App. Dkt. 78-3, 148-51.
In Taggart’s testimony for the prosecution, she too cor-
roborated that Young made regular trips to Columbus with
someone else in order to sell crack cocaine (although Taggart
could only identify the person accompanying Young on
these trips as “Fats”). Taggart began transacting with Young
in June 2010 as a matter of convenience; since Young came to
her in Columbus, she no longer had to drive to Indianapolis
to obtain crack cocaine. Taggart testified that she typically
purchased a quarter-ounce to a half-ounce of crack cocaine
from Young twice per week using cash; she then resold the
crack cocaine to someone else. No. 11-2267 App. Dkt. 78-2,
78-81.
C. Evidence Relevant to Jones
The wiretap of Mockabee’s phone also provided damag-
ing evidence against appellant Jones. Specifically, this wire-
tap revealed six transactions in which Mockabee sold distri-
bution quantities of crack cocaine to Jones. In the telephone
conversations replayed at trial, Jones was overheard on No-
vember 25, 2009, telling Mockabee, “I was trying to see what
the address was,” and later in the conversation, asking
Mockabee for “one.” Once again, Detective Clark and Devon
Hudgins interpreted these statements to signify that Jones
had been trying to determine the amount of crack cocaine
that his customer wanted, and eventually decided that he
required one ounce of cocaine from Mockabee.
Similarly, Jones was overheard on November 27, 2009,
telling Mockabee, “I’m going to slide down there in a mi-
nute,” and “It’s all the same.” Detective Clark interpreted
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 13
these statements to mean that Jones intended to purchase the
same one-ounce quantity of cocaine from Mockabee that he
had purchased only two days before. No. 11-2267 App. Dkt.
78-2, 118-20.
On December 2, 2009, Jones and Mockabee spoke again.
In this conversation, Mockabee told Jones, “I got [to] fill that
up for you man,” and “I had just got through taking the
apron off.” Jones responded that he had “jumped up” and
needed Mockabee to “give [him] the sing and a half.” Detec-
tive Clark believed that Jones was conveying to Mockabee
that he wanted more cocaine than he had in his previous or-
ders—one and a half ounces. At the same time, Mockabee
was conveying to Jones that he was “getting the order to-
gether of crack cocaine” by “cooking” powder cocaine. No.
11-2267 App. Dkt. 78-2, 132-33.
The next conversation between Mockabee and Jones in-
troduced into evidence at trial came from five days later, on
December 7, 2009, during which Mockabee asked Jones,
“What’s the address?” and Jones responded, “Same.” Like
all of the other address conversations, Detective Clark be-
lieved that Mockabee’s inquiry was about the amount of co-
caine desired. Jones’s response, according to Clark, signified
that he desired one ounce of crack cocaine. Id. at 141-42. An-
other conversation from December 11 was then played at
trial, in which Mockabee again asked Jones for “the ad-
dress,” and Jones responded “two” plus “some chez.” Clark
testified that here, Jones was ordering two ounces of crack
cocaine plus some marijuana from Mockabee. Id. at 149-50.
The final conversation between Mockabee and Jones played
at trial came from January 4, 2010, when Mockabee advised
Jones that he was “back up running.” Clark believed this call
14 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
signified that Mockabee “had obtained cocaine and was
ready to sell” it to Jones. No. 11-2267 App. Dkt. 78-3, 38-39.
In addition to these six wiretapped telephone conversa-
tions, the government introduced some physical evidence
against Jones, most of which came from a house at 2713 Ea-
gledale Drive in Indianapolis. Jones’s phone calls to Mocka-
bee were critical in linking Jones with the Eagledale address.
In all of his conversations with Mockabee, Jones had used a
cell phone with the number 317-333-4974. After hearing the
six conversations between Jones and Mockabee in which the
two men appeared to discuss cocaine transactions, Detective
Clark obtained a court order allowing his IMPD/FBI team to
use GPS technology to locate this cell phone. Clark’s law en-
forcement team used the court order twice to locate the cell
phone: first, on January 11, 2010, at 5:38 am, and second, on
January 15, 2010, at 7:01 am. The team specifically chose
these two particular times to locate the cell phone associated
with Jones because “early morning hours[] are the time that
an individual’s most likely to be in their true residence, that
most people sleep.” Both times, the cell phone associated
with Jones was traced to the 2713 Eagledale Drive address.
No. 11-2267 App. Dkt. 78-6, 90-91. Moreover, on those same
days, law enforcement observed a car registered to Jones
parked in close proximity to the Eagledale address during
the early morning hours.
Based on these car sightings, the intercepted calls, and
the two supporting GPS locations of the cell phone used by
Jones, the IMPD/FBI team obtained a search warrant for the
Eagledale Drive address. 2 Law enforcement executed the
2On appeal, Jones contests only whether the supporting affidavit sub-
mitted by Detective Clark, which identified 2713 Eagledale Drive as
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 15
search warrant during the early morning hours of January
20, 2010. Gov’t Appx. 3, 78.
While executing the search warrant, law enforcement
discovered Jones inside the house at 2713 Eagledale Drive
and arrested him there. In addition, law enforcement found
a variety of incriminating items throughout the house, in-
cluding (1) several pieces of crack cocaine on a towel,
amounting to 36.6 grams, located on the kitchen countertop
behind a marijuana plant; (2) 7.8 grams of crack cocaine in a
Pyrex measuring cup, located on the kitchen counter next to
a digital scale with suspected (but apparently untested) co-
caine residue; (3) 1.3 grams of crack cocaine, also located on
the kitchen counter next to some money and a couple of cell
phones; (4) 47.6 grams of crack cocaine contained within a
Pyrex mixing bowl and covered with rags, located by an en-
tertainment center in the living room; (5) a loaded .22 caliber
Ruger pistol, located behind the entertainment center in the
living room; (6) 6.8 grams of crack cocaine, located next to
suspected (but apparently untested) marijuana on a mattress
in the middle of the living room floor; (7) a MAK-90 semi-
automatic assault rifle, located on the floor of the master
bedroom with “clothing and items of personal belongings
scattered near and on or about it”; (8) a .22 caliber Ruger ri-
fle, also located on the floor of the master bedroom but ob-
scured from view because it was underneath some clothes;
(9) a digital scale containing cocaine residue, located inside a
shoebox in the second bedroom; (10) another digital scale,
located inside a clear plastic tub (that also contained many
Jones’s “residence,” contained enough information to link Jones to the
address, so we need not discuss any additional details of the eighty-four
page affidavit.
16 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
other items) in the second bedroom; (11) the cell phone that
Jones had used to call Mockabee (corresponding to tele-
phone number 317-333-4974); and (12) a substantial stack of
cash. No. 11-2267 App. Dkt. 78-6, 32-77. With all this evi-
dence in mind, we turn now to Jones’s particular claims of
error with respect to the pretrial rulings. (Neither Drake nor
Young alleges error with respect to pretrial motions).
II. Pretrial Error Claims: Jones’s Motion to Suppress
Before trial, Jones moved to suppress the evidence seized
during the search of the residence at 2713 Eagledale Drive.
The focus of his motion was whether Detective Clark’s affi-
davit supporting the search warrant provided sufficient in-
formation to link Jones to the Eagledale. Without that link to
him and his wiretapped drug conversations, Jones argues,
the police had no basis to search the house. The affidavit
claimed that 2713 Eagledale Drive was Jones’s “residence”;
the only support for this claim presented in the affidavit
were the two early-morning GPS locations of Jones’s cell
phone and two early-morning sightings of Jones’s car at that
location. When reviewing the denial of a motion to suppress,
we review the district court’s legal conclusions de novo and
its factual findings for clear error. United States v. Glover, ---
F.3d ---, No. 2014 WL 2747124, at * 2 (7th Cir. June 18, 2014).
In his motion to suppress, Jones objected to the affidavit’s
identification of 2713 Eagledale Drive as his “residence.” He
pointed out that, first, nothing was presented to the magis-
trate judge issuing the search warrant about the ownership
or rental of the house at 2713 Eagledale Drive. Second, noth-
ing was presented linking the registration of Jones’s car or
cell phone to that address. Third, nothing was presented to
suggest that Jones himself had been seen at or around that
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 17
address. Fourth, nothing was presented to indicate that a
drug transaction had been initiated or had taken place at
that address.
In spite of these four objections, the district judge con-
cluded that there was probable cause to believe that 2713
Eagledale Drive was “if not Jones’s only residence, at least
one location at which Jones resided.” Dkt. 643, 7. Emphasiz-
ing the fact that law enforcement both spotted his vehicle at
the residence and located his cell phone during early-
morning hours, the judge noted that:
most people are not usually at their place of
employment or engaged in social activity at
such early hours. … The fact that Jones’s vehi-
cle and cell phone were within the residence at
2713 Eagledale Drive during those early morn-
ing hours is sufficient to support the common
sense conclusion that the address was a loca-
tion at which Jones resided during the relevant
time period and would thus probably be a lo-
cation where contraband would be stashed.
Dkt. 643, 7. Furthermore, the district judge determined that
even if probable cause had not been present in the affidavit,
the search was saved by the good-faith exception to the war-
rant requirement. See United States v. Leon, 468 U.S. 897, 922
(1984) (finding that a law enforcement officer’s good faith,
“objectively reasonable reliance on a subsequently invalidat-
ed search warrant cannot justify the substantial costs of ex-
clusion” of evidence). The district judge accordingly denied
Jones’s motion to suppress.
18 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
Like the district judge, we, too, believe that Detective
Clark’s affidavit contained sufficient information to support
a finding of probable cause. Law enforcement officials have
probable cause sufficient to support a search warrant when
“the known facts and circumstances are sufficient to warrant
a man of reasonable prudence in the belief that contraband
or evidence of a crime will be found.” Ornelas v. United
States, 517 U.S. 690, 696 (1996). As the district judge correctly
pointed out, the government’s burden of proof under the
probable cause standard is lower than it is at trial. See Braun
v. Baldwin, 346 F.3d 761, 766 (7th Cir. 2003) (“Probable cause
is not proof beyond a reasonable doubt, or even proof by a
preponderance of evidence.”). Compounding Jones’s trou-
bles is the fact that we “afford great deference to the decision
of the judge issuing the warrant.” United States v. Aljabari,
626 F.3d 940, 944 (7th Cir. 2010) (quoting United States v. Bell,
585 F.3d 1045, 1049 (7th Cir. 2009)) (internal quotation marks
omitted). Under this deference, we must uphold the magis-
trate’s decision here so long as there was “a substantial basis
for concluding that a search would uncover evidence of a
crime.” Glover, 2014 WL 2747124, at *2.
A magistrate judge issuing a warrant “is entitled to draw
reasonable inferences about where evidence is likely to be
kept, based on the nature of the evidence and the type of of-
fense.” United States v. Orozco, 576 F.3d 745, 749 (7th Cir.
2009) (quoting United States v. Lamon, 930 F.2d 1183,
1188 (7th Cir. 1991)). And “in the case of drug dealers, evi-
dence is likely to be found where the dealers live.” Id. (quot-
ing Lamon). Jones does not contest these propositions. Nor
does he contest whether there was probable cause to believe
that he was a drug dealer. Instead, Jones challenges whether
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 19
the affidavit contained a substantial basis for concluding that
he lived at 2713 Eagledale Drive.
Ideally, Detective Clark’s affidavit might have supported
its claim that 2713 Eagledale Drive was Jones’s “residence”
through house rental, house sale, utility or car registration
records. (Notably, Jones’s cell phone registration would not
have helped law enforcement, since Jones’s phone was regis-
tered to a different address at 2545 Brittany Road.) Still, even
in the absence of such proof, the affidavit provided some ev-
idence that Jones had a substantial connection to the Eagle-
dale address. The observations of Jones’s cell phone at, and
his car in close proximity to, the address were sufficient to
demonstrate a likelihood that Jones had spent the night there
on at least two recent occasions.
Of course, the fact that an individual spends the night at
a location on two occasions does not necessarily make that
location the individual’s residence. And law enforcement
did have information, not presented to the magistrate judge,
that 2713 Eagledale Drive might not have been Jones’s only
residence since his cell phone was registered to a different
address at 2545 Brittany Road. Nonetheless, the fact remains
that both times that law enforcement tried to locate Jones
during the early morning hours, he appeared to be at the
Eagledale address.
Given that law enforcement had some evidence suggest-
ing that 2713 Eagledale Drive was one location (if not the on-
ly location) where Jones resided, the district court’s decision
was supported by substantial evidence. Probable cause ex-
ists if the supporting affidavit “allege[s] specific facts and
circumstances to allow the judge to reasonably conclude that
the items sought to be seized are associated with the crime
20 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
and located in the place indicated.” United States v. Koerth,
312 F.3d 862, 867 (7th Cir. 2002). Here, Detective Clark pro-
vided two observations of both Jones’s cell phone and car to
support the claim that 2713 Eagledale Drive was Jones’s
“residence.” Perhaps law enforcement could have done
more to connect Jones to the house on Eagledale Drive; how-
ever, they did enough to support a search warrant for the
house.
Furthermore, even if Detective Clark’s affidavit had not
been sufficient to support a search warrant for the house
under the probable cause standard, the search of 2713 Ea-
gledale Drive would nonetheless be saved under Leon, 468
U.S. at 922. Leon and its progeny require us to treat Detective
Clark’s decision to obtain a search warrant “prima facie evi-
dence that he was acting in good faith.” United States v. Gar-
cia, 528 F.3d 481, 487 (7th Cir. 2008). As a result, Jones can
only defeat this good-faith exception by showing: “(1) that
the issuing judge abandoned the detached and neutral judi-
cial role; (2) that the officer was dishonest or reckless in pre-
paring the affidavit; or (3) that the warrant was so lacking in
probable cause that the officer could not reasonably rely on
the judge’s issuance of it.” United States v. Miller, 673 F.3d
688, 693 (7th Cir. 2012).
Jones does not contest the issuing magistrate judge’s neu-
trality; indeed, Jones seems to concede that the issuing judge
made an understandable decision given the affidavit pre-
sented to him by Detective Clark. According to Jones’s brief,
the affidavit’s use of the term “‘residence’” to describe 2173
Eagledale Drive “is a highly meaningful assertion to any is-
suing magistrate” and “carries with it unique inferences that
do not exist with other types of physical locations.” Instead,
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 21
Jones attempts to defeat the good-faith exception by arguing
that (1) Detective Clark was reckless in preparing the affida-
vit by labeling 2713 Eagledale Drive as Jones’s “residence”
and by failing to mention the 2545 Brittany Road address,
and (2) law enforcement officers could not have reasonably
relied on the magistrate judge’s issuance of a search warrant
as it was based on only two observations of Jones’s car and
cell phone at that location.
We agree with Jones that Detective Clark’s affidavit
could have been more complete. If the affidavit had men-
tioned that the cell phone was billed and the automobile was
registered at 2545 Brittany Road, the magistrate judge could
have weighed those facts against the early-morning GPS and
car-sighting results. Given the limited information that Clark
had about Jones’s link to 2713 Eagledale Drive, it would
have been more accurate to describe the Eagledale address
as “a place where Jones appears to reside” or even “one of
Jones’s residences.” Nevertheless, Detective Clark’s affidavit
need not be either airtight or flawless in order to hold up
under the good-faith exception. Under our precedent, the
presumption that law enforcement was acting in good faith
by seeking a search warrant is so strong that we will uphold
the presumption as long as there is “some indicia” of crimi-
nal activity on the property that can support a finding of
probable cause. Koerth, 312 F.3d at 870.
For instance, although we found that the officer’s affida-
vit in Koerth had failed to establish probable cause for issu-
ing a warrant to search the defendant’s “residence,” we
nonetheless refused to suppress the fruits of the search un-
der the good-faith exception. Id. at 867–71. The affidavit in
that case referenced a tip from a confidential informant indi-
22 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
cating that Koerth resided at the property to be searched and
that illegal drug activity had previously occurred there. Id. at
870. We also did not believe that the judge issuing the search
warrant had been misled by the affidavit. Id. at 871–72. As a
result, we concluded that the affidavit “provided the type of
facts that, if corroborated or explained in greater detail,
might very well have been sufficient to establish probable
cause,” and upheld the district court’s refusal to suppress
the evidence recovered during the search. Id. at 870.
In the present case, the observations of Jones’s cell phone
and car at the Eagledale address during the early morning
hours certainly provided some indicia that Jones was resid-
ing at that address. Moreover, these observations indicated
that illegal drug activity was occurring on the property since
the cell phone traced through GPS to the Eagledale address
was the very same cell phone that Jones had used to make
incriminating phone calls to Mockabee. Although Detective
Clark’s affidavit did not make clear whether 2713 Eagledale
Drive was Jones’s only “residence,” as opposed to one of his
several residences, at the very least it suggested that Jones
was regularly and recently spending the night there. Conse-
quently, we do not believe that Detective Clark’s failure to
mention that Jones may have had other residences besides
2713 Eagledale Drive was reckless.
Nor do we believe the magistrate judge issuing the
search warrant was misled by Clark’s failure to mention that
Jones might have had other residences. Including the ad-
dress to which Jones’s cell phone was registered probably
would not have changed the magistrate judge’s determina-
tion that there was probable cause to search 2713 Eagledale
because his car and cell phone were observed there on two
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 23
different occasions in the early morning hours. As the dis-
trict court correctly pointed out: “Because of the fungible na-
ture of cell phones, it is not at all uncommon for individuals
to reside at an address other than that listed in their cell
phone subscriber records.” The observations of Jones’s cell
phone and car at the Eagledale address cited in the affidavit
were more than sufficient for a law enforcement officer to
reasonably rely upon when executing the warrant, and thus
were more than sufficient to satisfy the good-faith exception.
Accordingly, the district court did not err in denying Jones’s
motion to suppress.
III. Trial Error Claims
A. Jones – Sufficiency of the Evidence
Because we agree with the district court that the evidence
recovered from 2713 Eagledale Drive should not have been
suppressed, we move now from Jones’s pre-trial error claims
to his trial error claims. As it turned out, the evidence recov-
ered from the Eagledale residence was critical to the prose-
cution. The jury found Jones guilty of two crimes based up-
on items discovered in the Eagledale search—namely, pos-
session of crack cocaine with the intent to distribute and be-
ing a convicted felon in possession of a firearm. The jury also
found Jones guilty on the drug conspiracy charge, but the
district court granted an oral Fed. R. Crim. P. 29 motion for
judgment of acquittal on that charge after the verdict.
Jones contends that his Rule 29 motion should have been
granted on the other two charges as well. According to
Jones, the government failed to introduce sufficient evidence
to prove that he possessed either the crack (Count Eleven) or
the firearms (Count Twelve) recovered from the house at
24 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
2713 Eagledale Drive. He also challenges whether the gov-
ernment proved that he possessed the crack with intent to
distribute. “A defendant challenging the sufficiency of the
evidence supporting a jury’s verdict bears a ‘heavy bur-
den.’” United States v. Griffin, 684 F.3d 691, 694 (7th Cir. 2012)
(quoting United States v. Olson, 978 F.2d 1472, 1478 (7th Cir.
1992)). He “must show that no rational trier of fact could
have found that the government proved the essential ele-
ments of the crime beyond a reasonable doubt.” Id. We view
the evidence and draw all reasonable inferences “from the
evidence in the light most favorable to the government.” Id.The essential elements of possession of a controlled sub-
stance with the intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) are that “the defendant knowingly or intentional-
ly possessed a controlled substance with the intent to dis-
tribute it, while knowing that it was a controlled substance.”
United States v. Carraway, 612 F.3d 642, 645 (7th Cir. 2010).
The essential elements of possession of a firearm by a con-
victed felon in violation of 18 U.S.C. § 922(g)(1)) are that “(1)
the defendant has a previous felony conviction, (2) the de-
fendant possessed the firearm …, and (3) the firearm … had
traveled in or affected interstate or foreign commerce.” Grif-
fin, 684 F.3d at 695.
With respect to both the drugs and the firearms, the pos-
session proved could be actual or constructive, and sole or
joint. Proof of the mere presence of Jones at the Eagledale
residence would not be enough; proof of his possessory in-
terest in the contraband would be necessary. Since both the
drugs and the firearms attributed to Jones were recovered
from the Eagledale residence, the success of Jones’s Rule 29
motion claim hinges on the evidence presented by the gov-
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 25
ernment at trial regarding the fruits of the search there, so
we have scoured the record carefully for details concerning
that search.
When law enforcement arrived to execute the search
warrant, there were two people inside the house: Jones and
an unidentified female. 2713 Eagledale Drive is a ranch-style
house containing three bedrooms, a living room, a dining
room, and a kitchen. The house was, by all accounts and as
well demonstrated by photos admitted into evidence, “a lit-
tle messy,” to say the least. No. 11-2267 App. Dkt. 78-6, 77.
There was a mattress in the middle of the living room floor,
not to mention an entire bedroom with “clothing and items
of personal belongings scattered … about it.” Id. And of
course, there were three guns, three digital scales, a total of
100.1 grams of crack cocaine and Jones’s cell phone, strewn,
along with a hodge-podge of clothing and household items,
throughout the kitchen, the living room, and the two bed-
rooms.
IMPD narcotics detective Mark Kunst testified at trial
about where various items were found during the execution
of the search warrant. Unfortunately, he was unable to pro-
vide information about where Jones and the female were in
the residence at the moment of the police entry. But he did
explain where the drugs and guns were found. The drugs
were in plain sight in two rooms of the house. But the guns
were not. The first gun was located in the living room be-
hind the entertainment center, and Detective Kunst admitted
on the stand that this gun was “not in view” and “you’d
have to bend over to get it.” No. 11-2267 App. Dkt. 78-6, 75.
The other two guns were located in the master bedroom, ap-
parently lying among the piles of clothing. The master bed-
26 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
room, according to Kunst’s testimony, was quite messy, and
one of the guns there was at least partially obscured by
clothing and other personal belongings.
The government argues that it presented at least enough
evidence to sustain a conviction on a theory of constructive
possession. “Constructive possession is a legal fiction
whereby a person is deemed to possess contraband even
when he does not actually have immediate, physical control
of the object.” Griffin, 684 F.3d at 695 (citing United States v.
Morris, 576 F.3d 661, 666 (7th Cir. 2009)). We apply the same
test to determine constructive possession of the drugs and
the gun. Morris, 576 F.3d at 666. “Constructive possession
may be established by demonstrating that the defendant
knowingly had both the power and the intention to exercise
dominion and control over the object, either directly or
through others. This required ‘nexus’ must connect the de-
fendant to the contraband, separating true possessors from
mere bystanders.” Griffin, 684 F.3d at 695 (citation omitted).
Where, as here, a defendant does not have “exclusive con-
trol” over the property where the contraband was found,
“evidence that a defendant had a ‘substantial connection’ to
the location where contraband was seized is sufficient to es-
tablish the nexus between that person and the [contraband].”
Id. (alteration in original) (quoting Morris, 576 F.3d at 667).
“[M]ere proximity to contraband is not enough to estab-
lish a sufficient nexus to prove constructive possession.” Id.
at 696. Rather, “[p]roximity must be coupled with other evi-
dence, including connection with an impermissible item,
proof of motive, a gesture implying control, evasive conduct,
or a statement indicating involvement in an enterprise in or-
der to sustain a guilty verdict.” United States v. Reed, 744 F.3d
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 27
519, 526 (7th Cir. 2014) (citing Griffin, 684 F.3d at 696), peti-
tion for cert. filed, (U.S. June 9, 2014) (No. 13-10530). In cases
where a defendant jointly occupies a residence, a defend-
ant’s “substantial connection” to the residence is insufficient
to establish constructive possession of contraband in that
residence. Griffin, 684 F.3d at 696–97. In such cases “proof of
constructive possession of contraband in the residence re-
quires the government to demonstrate a ‘substantial connec-
tion’ between the defendant and the contraband itself, not
just the residence.” Id. at 697 (emphasis added).
We conclude that there was sufficient evidence for the ju-
ry to find that Jones had a substantial connection to both the
Eagledale Drive address and the crack cocaine located there.
The government introduced evidence that on two separate
occasions, in the early morning hours of January 11 and 15—
four days apart—Jones’s cell phone was located at the Ea-
gledale Drive address and his car was parked nearby. Thus
Jones’s cell phone and car were placed at the residence with-
in five days of the January 20 search of the residence. And,
as we know, when law enforcement searched the Eagledale
Drive residence in the early morning on January 20, they
found both Jones and his cell phone. Furthermore, although
we do not know where inside the house the officers found
Jones, we do know that more than half of the crack cocaine
found there was out in the open in common areas—the
kitchen and living room; it was not concealed away in a bed-
room or closed container. One of the digital scales was found
out in clear view on the kitchen countertop too. Thus, Jones
had easy access to the crack cocaine and had the power to
exercise dominion and control over it.
28 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
In addition, the government introduced evidence of the
telephone arrangement of six transactions from late Novem-
ber 2009 through January 4, 2010, in which Jones sought dis-
tribution quantities of crack cocaine from Mockabee. The last
of these transactions occurred about two weeks before the
search and seizure at the Eagledale Drive residence. These
recorded conversations provide evidence that close to the
time leading up to the search, Jones repeatedly had been
seeking to acquire the very type of contraband found at the
residence—distribution quantities of crack cocaine. This evi-
dence provides that “other factor” our case law demands:
Jones’s connection with and desire to possess crack cocaine.
We think the evidence at trial established Jones’s sub-
stantial connection not only to the Eagledale Drive address
but also to the quantities of crack cocaine found there—
sufficient for the jury to conclude he was guilty of drug pos-
session. That the woman who also was in the house when
the officers arrived to search may also have had access to the
crack is immaterial. As previously noted, possession may be
joint. United States v. Kitchen, 57 F.3d 516, 521 (7th Cir. 1995).
Thus, the evidence was sufficient to prove that Jones pos-
sessed the crack cocaine.
The government also presented sufficient evidence of
Jones’s intent to distribute the cocaine. Evidence of a drug
quantity inconsistent with personal use and evidence of
drug paraphernalia associated with distribution, such as
baggies or scales, raise a reasonable inference that the de-
fendant possessed the drug with intent to distribute it. See,
e.g., United States v. Irby, 558 F.3d 651, 654 (7th Cir. 2009).
Digital scales with cocaine residue were found in the resi-
dence. Detective Clark testified that 0.2 grams of crack co-
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 29
caine was a common dosage unit for crack cocaine, and more
than 450 dosage units of crack cocaine were seized from the
residence. And the crack and scale in the kitchen were found
in sight of a substantial stack of currency, a typical feature of
the lucrative, cash-based business of illegal drug trafficking.
Thus, the evidence raises a reasonable inference that Jones
possessed the cocaine with intent to distribute it.
Turning to the firearms found at the residence, we reach
the same conclusion. The government argues that it has es-
tablished a substantial connection between Jones and the .22
caliber Ruger pistol based on the proximity of the pistol to
the crack cocaine found by the entertainment center in the
living room. Detective Kunst testified that a Pyrex bowl con-
taining the crack was “in the living room by the entertain-
ment center” and the Ruger was found by reaching behind
that center. Although not right next to each other, the drugs
and that gun were in close proximity to each other.
Regarding all the firearms found in the house, the gov-
ernment argues that it established a substantial connection
between Jones and these firearms with proof of motive. The
government relies on the strong relationship between drug
trafficking and the possession of firearms. We have re-
marked that “it is widely known that guns and drugs go
hand in hand.” United States v. Gulley, 722 F.3d 901, 908 (7th
Cir. 2013). Similarly, we and countless experts have recog-
nized that “guns are tools of the drug trade.” United States v.
Vaughn, 585 F.3d 1024, 1029 (7th Cir. 2009). And although we
have also recognized that “the average juror is not well
versed in the mechanics of the drug trade,” United States v.
Ramirez-Fuentes, 703 F.3d 1038, 1043 (7th Cir. 2013), the gov-
ernment helped the jury draw that connection through the
30 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
testimony of one of its law enforcement witnesses. IMPD De-
tective Stephen Swarm testified without objection that, based
on his training and experience, drug traffickers use firearms
to protect themselves from robbery or from being arrested
by the police. Trial Tr. vol. 5, 748–49. Such testimony com-
ports with what courts have allowed “concerning the tools
of the [drug] trade.” Ramirez-Fuentes, 703 F.3d at 1043 (quot-
ing United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001) (in-
ternal quotation marks omitted). The evidence of Jones’s
participation in drug trafficking provides the motive for his
possession of all three firearms found in the residence and
therefore establishes the substantial connection between
Jones and the firearms.
Viewing the evidence and drawing all reasonable infer-
ences in the light most favorable to the government, the evi-
dence was sufficient to allow a reasonable jury to find that
Jones possessed crack cocaine with the intent to distribute it
and that he possessed the firearms to protect that distribu-
tion objective. Therefore, Jones’s sufficiency challenge to his
convictions is unsuccessful.
B. Drake
Drake raises several alleged trial errors. She argues that
the district court erred in: 1) admitting opinion testimony of
Detective Clark interpreting drug code language, 2) imper-
missibly restricting her cross-examination of Detective Clark,
3) denying her Rule 29 motion challenging the sufficiency of
the evidence to sustain her conspiracy conviction, and 4) al-
lowing prosecutorial misconduct during rebuttal argument.
Drake also argues that the cumulative effect of these alleged
errors denied her a fair trial.
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 31
In responding to the first argument, the government does
not argue that Detective Clark testified only as a lay witness,
which distinguishes the recent case of United States v. Cheek,
740 F.3d 440, 447 (7th Cir.), cert. denied, 134 S. Ct. 2152 (2014),
where we held that an agent’s “testimony about the drug
code words and phrases used by [the defendant] and his co-
conspirators” that was based on the agent’s personal
knowledge obtained from his case investigation was lay tes-
timony. We therefore must review the district court’s deci-
sion to admit Detective Clark’s testimony under the Federal
Rules of Evidence governing opinion testimony.
1. Federal Rules of Evidence 702 and 704
At trial, Drake’s counsel did not object to any of Detec-
tive Clark’s expert opinion testimony about how to interpret
certain words used in the recorded telephone conversations
(although counsel did question Clark about how he arrived
at some of his interpretations). Nor did Drake’s counsel ob-
ject to Clark being qualified as an expert. App. Dkt. 70-2, 100.
Because neither Drake nor any other defendant objected to
Detective Clark’s expert testimony, the government was not
alerted that it needed to provide the bases for Clark’s opin-
ions. Had there been an objection, the prosecutor could have
examined Clark on his specialized knowledge, the bases of
his expert opinions, and the principles and methods he used
in forming his expert opinions, and we do not doubt that the
prosecutor would have done so in this case. Consequently,
we review the admission of his expert opinion testimony for
plain error. United States v. Collins, 715 F.3d 1032, 1037 (7th
Cir.), cert. denied, 134 S. Ct. 658 (2013). We will reverse the
district court’s admission of testimony only if the admission
was “an ‘error’ that [wa]s ‘plain’ and that ‘affect[ed] substan-
32 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
tial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993)
(quoting Fed. R. Crim. P. 52(b)). If the error was harmless,
we will not reverse. See United States v. York, 572 F.3d 415,
429 (7th Cir. 2009).
“Expert testimony must be helpful to the jury to be ad-
missible,” and “a witness should not be allowed to put an
‘expert gloss’ on a conclusion that the jurors should draw
themselves.” United States v. Christian, 673 F.3d 702, 710 (7th
Cir. 2012). Detective Clark pointed out (shortly before being
qualified as an expert witness) that although there is some
“standard code” for drug transactions, “the majority of code
language that drug traffickers use” is not “standardized.”
App. Dkt. 70-2, 98. According to Clark, the non-standardized
code between drug traffickers generally arises from “some-
one’s familiarity with another individual over time, repeated
transactions.” Id. As a task force officer experienced in the
drug trade, Clark helped the jury interpret the standardized
drug language used by the defendants. And as the lead
agent on the case who had “listen[ed] to over 10,000” inter-
cepted phone calls among the defendants, Clark’s testimony
helped the jury interpret the non-standardized drug lan-
guage specific to these defendants.
We have condoned such testimony as helpful to the jury.
In United States v. Ceballos, 302 F.3d 679, 687–88 (7th Cir.
2002), we found DEA agents’ interpretations of the pronouns
“it,” “them,” and “both” as referring to methamphetamine
shipments “helpful to the jurors because [a]s a result of [the
agents’ expert] testimony, the jury was able to apply to the
evidence alternative theories of which they ordinarily would
not have been aware” (alteration in original) (internal quota-
tion marks and citation omitted). In York, we concluded that
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 33
an FBI agent’s expert testimony about the meaning of the
words “six,” “nine,” “five dollar,” and “fifty-five” within a
conversation “would assist the jury” since the meaning of
these words were otherwise ambiguous. 572 F.3d at 423.
And in Christian, we found that an FBI agent’s expert testi-
mony about a defendant’s arm movements helpful, explain-
ing: “Although at first glance, expert testimony that Chris-
tian’s arm movements were consistent with tossing an object
may appear to be a matter of common sense, a more deliber-
ate consideration of the testimony suggests otherwise. What
might seem like innocuous conduct to an untrained jury,
might, to the trained eye, be indicative of criminal activity.”
673 F.3d at 711.
Drake also challenges whether Detective Clark’s opinions
were based on reliable principles and methods. Although
not a model of expert analysis, there is no evidence that
Clark used unreliable principles and methods. Throughout
the expert portion of his testimony, Clark stated that he
drew his conclusions from his “training and experience ap-
plied to this case, [and] listening to over 10,000 or so inter-
cepts.” App. Dkt. 70-3, 81. He also said that in “identifying
and interpreting code language in this case,” he “con-
duct[ed] some form of peer review … in the sense that [he]
work[ed] closely with other detectives within [his] unit.” If
he had a “thought or a certain technique or operation” he
wanted to try, it was “discussed, and people offer[ed] their
opinions as well.” App. Dkt. 70-2, 305-06. Clark’s limited
discussion of his principles and methods is sufficient under
York, where we said:
Experts need not establish that certain words
have fixed meanings only in the narcotics
34 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
world or in the particular conspiracy before
they can interpret those words. Experts can de-
termine, based on their expertise, that certain
words have drug-related meanings within the
context of a single conversation. In Ceballos, for
example, agents interpreted the words “it,”
“them,” and “both” as referring to shipments
of methamphetamine. 302 F.3d at 687. Those
words certainly lack any “fixed meaning” in
the narcotics world or elsewhere—“it” does
not always mean meth. But in the context of
that conversation, where the pronoun “it” had
no antecedent, the agents, drawing on their
expertise, had a reliable basis to conclude that
those words referred to drugs. Id. at 687–88.
572 F.3d at 424. In addition, two interdiction stops were con-
ducted shortly after Mockabee, Drake, and Young had used
some of the coded language, and powder or crack cocaine
was seized each time. These interdictions tested Detective
Clark’s theory as to the meaning of the coded language, and
the seizures lend support to his interpretations.
Yet Detective Clark repeatedly transitioned back and
forth between testifying as an expert and testifying as a fact
witness/lead case agent during his expert testimony. In York,
we explained:
Seamlessly switching back-and-forth between
expert and fact testimony does little to stem the
risks associated with dual-role witnesses. Even
more problematic was the way in which the
government prefaced these questions: “Based
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 35
on your experience of [sic] crack cocaine inves-
tigations and this investigation in particular … .”
Id.; see also United States v. Garrett, No. 13-1182, 2014 WL
2883886, at *6–7 (7th Cir. June 26, 2014) (discussing the dan-
ger of allowing an investigating officer to testify as both an
expert and fact witness); Cheek, 740 F.3d at 447 (recognizing
“inherent dangers” with using one witness as both an expert
and lay witness). Although the prosecution was careful to
preface every question with “based upon your training and
experience,” it seems that “experience” sometimes meant
experience with this particular case, not general experience
as a task force agent. For example, when asked on cross-
examination (during his expert testimony) how he came to
the conclusion that “one” meant “one ounce of cocaine,”
Clark attributed this interpretation to his experience “from
what [he] gathered through the investigation” as lead case
agent. App. Dkt. 70-3, 127. It was error to allow this transi-
tioning back and forth between expert and fact testimony.
See York, 572 F.3d at 426 (holding district court erred in ad-
mitting a witness’s responses to the government’s questions
about “six,” “fifty-five,” and “five dollar” where the appeals
court could not tell whether the witness’s interpretations
were based on his expertise or a conversation with the in-
formant); United States v. Moreland, 703 F.3d 976, 983 (7th Cir.
2012) (“Telling the jury that a witness is both a lay witness
and an expert witness and will be alternating between the
two roles is potentially confusing—and unnecessary.”), cert.
denied, 133 S. Ct. 2377 (2013).
To avoid errors from dual-role witness testimony, we
have explained that “[t]he lawyer examining the witness
need only ask him the basis for his answer to a question, and
36 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
the witness will then explain whether it was his investiga-
tion of the defendants’ conspiracy or his general experience
in decoding drug code.” Id. at 983–84. But here the lawyers
did not do a good job asking Detective Clark for the basis for
his answer to each question. It is often unclear in the trial
transcript whether the detective is basing his testimony on
his experience as a general drug investigator or his experi-
ence with this particular case. The district court should not
have admitted Detective Clark’s dual-role witness testimo-
ny.
Nonetheless, the error in failing to distinguish between
the expert testimony and lead-case-agent testimony is sal-
vaged under our plain error standard of review. Under that
standard, we will not reverse where an error is harmless. See
York, 572 F.3d at 429. The error in admitting Clark’s dual-
role witness testimony was harmless as to Drake. The gov-
ernment had very strong evidence that Drake was part of the
drug conspiracy since it had a recorded telephone conversa-
tion of her telling Mockabee that “my business is your busi-
ness.” This conversation is evidence that Drake had “‘a stake
in [Mockabee’s] venture’” and that they had an agreement to
further distribute drugs. 3 See United States v. Brown, 726 F.3d
993, 998 (7th Cir. 2013) (quoting Direct Sales Co. v. United
States, 319 U.S. 703, 713 (1943)), cert. denied, 134 S. Ct. 1876(2014). Moreover, Hudgins also testified about the meaning
of code words such as “address,” “ready,” “shut down,” and
“putting my apron on,” and his testimony was consistent
with Detective Clark’s interpretation of each word’s mean-
ing. Hudgins’s testimony was not offered as expert or dual-
3Further discussion of the evidence against Drake follows in connection
with her challenge to the sufficiency of the evidence.
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 37
role witness testimony. It provides evidence of the case-
specific meaning of the code words used by members of
Mockabee’s cocaine-distribution organization. That testimo-
ny would have convinced the jury that Drake was involved
in the conspiracy even if Detective Clark’s expert testimony
had been excluded.
Drake also argues that Detective Clark rendered inad-
missible opinions as to her state of mind. Federal Rule of Ev-
idence 704(b) prohibits an expert from testifying about the
defendant’s “mental state or condition that constitutes an
element of the crime.” “Although an expert may not testify
or opine that the defendant actually possessed the requisite
mental state, he may testify in general terms about facts or
circumstances from which a jury might infer that the de-
fendant intended to distribute drugs.” United States v. Win-
bush, 580 F.3d 503, 512 (7th Cir. 2009). “An important factor
in determining whether an expert violated Rule 704(b) is the
degree to which the expert refers to the specific defendant’s
intent, and expert testimony is proper as long as it leaves for
the jury the ultimate conclusion that the defendant intended
to distribute controlled substances.” Id. (citations omitted).
Although Detective Clark appears to have been simulta-
neously testifying as both an expert and a lead case agent, he
never directly testified that Drake intentionally joined the
drug conspiracy—which is all that our precedent prohibits.
See, e.g., Collins, 715 F.3d at 1038 (expert testimony properly
admitted where officer’s testimony was not based on “some
special familiarity with the workings of [the defendant’s]
mind”) (internal quotation marks omitted); United States v.
Are, 590 F.3d 499, 513 (7th Cir. 2009) (“We affirmed the dis-
trict court’s decision to allow the expert testimony because
38 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
the officers testified that their opinions were based on their
knowledge of ‘common practices in the drug trade’ and not
on ‘some special familiarity with the workings of [the de-
fendant’s] mind.’” (citations omitted); United States v. Lip-
scomb, 14 F.3d 1236, 1242 (7th Cir. 1994) (concluding there
was no Rule 704(b) violation where an expert testified “that
a certain pattern of conduct evinces a particular kind of
criminal activity. On the contrary, such testimony is consid-
ered quite helpful in drug-trafficking cases.”). Detective
Clark did not render an opinion as to Drake’s state of mind.
The district court erred under Rules 702 and 704 in ad-
mitting testimony by Detective Clark concerning the mean-
ing of drug-related telephone conversations involving
Drake. But the error was only with respect to the failure to
adequately distinguish between Clark’s dual-role as expert
and lead case investigator, and this error was harmless as to
Drake. And Detective Clark did leave the ultimate question
of Drake’s intent to the jury. We therefore will not overturn
Drake’s conviction on this ground.
2. Cross-Examination of Detective Clark
Drake makes two objections to the district court’s limita-
tion of her cross-examination of Detective Clark. First, she
objects to restriction on the line of questioning about how
Clark arrived at his interpretation of the word “one” to
mean “one ounce of cocaine.” She also objects to the district
court’s refusal to let her play recordings of additional inter-
cepted telephone calls. “We review a trial court’s limitation
of cross examination for an abuse of discretion. … Neverthe-
less, if the court’s ruling implicates the defendant’s constitu-
tional rights, we review it de novo.” United States v. Neely, 980
F.2d 1074, 1080 (7th Cir. 1992).
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 39
With respect to the cross-examination of Detective Clark
about his interpretation of the word “one,” it appears from
the trial transcript that Drake’s counsel repeatedly asked
Clark how he arrived at his interpretation. App. Dkt. 70-3,
123-128. To illustrate:
Q. Elisha Drake says “Can you have one of those
ready for me?” Your opinion is that “one of those”
means crack cocaine, correct?
A. One ounce of crack cocaine, yes.
…
Q. Now, the contextual—the code language and the
vague language used that has meaning within the
context and within the understanding between the
speakers is based on their understanding, correct?
A. I don’t understand that question.
Q. Okay. The language used, and the particular mean-
ing of generic phrases or vague phrases or pronouns,
their meaning specific to the call is based on the mu-
tual understanding of the callers, of the parties speak-
ing, correct?
A. Yes.
Q. So within that context, “one” could mean anything
that the two of them have previously agreed or previ-
ously understood that “one” means?
A. Between two people, yes, that’s correct.
Q. And, for instance, if Elisha Drake were in the habit
of buying one-eighth and she stated to Ramone
Mockabee “Can you have one of those ready for me,”
40 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
“one of those ready for me” could be whatever quan-
tity she was in the habit of purchasing, correct?
A. Based on my training and experience in this case –
as applied to this case, with all the information, I be-
lieve this means one ounce.
Q. And what information do you base that on?
App. Dkt. 70-3, 123–25. Drake’s counsel did not clearly
phrase his questions, and when he did not get the answer
that he wanted from Clark, counsel simply asked the same
question over again. Eventually, Detective Clark appeared to
get somewhat frustrated and ended up reciting his history in
law enforcement to the jury in an attempt to answer the
question posed by Drake’s counsel. At that point, the judge
called the attorneys up to the bench to put an end to the
“fishing expedition” by Drake’s attorney. Id. at 128.
Contrary to the characterization of events in Drake’s
brief, it appears that the judge was actually trying to help
Drake’s attorney by cutting off his questioning. After calling
the attorneys to the bench, the judge warned Drake’s attor-
ney, “I can’t figure out exactly where you’re headed, but it
can’t be serving your client’s interest to have [Clark] re-
hearse all of his expertise and his involvement in this case.
All you do when you ask these questions is buttress his tes-
timony.” Id. The questions posed by Drake’s attorney
seemed to lack direction, suggesting that counsel did not
have a clear theory of defense.
Similarly, the judge’s prohibition on Drake’s attorney
playing telephone calls during his cross-examination of
Clark appears to be the result of a lack of focus and organi-
zation by counsel. Drake’s attorney first claimed that he
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 41
wanted to play twelve phone calls to impeach Clark. Then
he claimed that he “missp[oke]” and that he actually wanted
to play twenty-five phone calls. App. Dkt. 70-3, 62. The at-
torney also admitted that there was no written transcript of
these phone calls for the jury and that the court reporter
“had such difficulty in understanding the slang and termi-
nology used by the subject [in these phone calls] … that he
was not able to get [the transcripts] done in time” (an admis-
sion that indicated that the jury would likely need a written
transcript in order for the recordings to be meaningful). Id. at
61. Drake’s attorney had not previously disclosed to the
prosecution that he intended to use these phone calls at trial.
And when asked by the judge why he suddenly wanted to
introduce them, Drake’s attorney could only make the gen-
eral statement that he wanted to “rebut[] a statement made
by the witness”—offering absolutely no specifics about the
content of the phone calls. Id.
Despite the lack of specifics offered, the judge did not
prohibit Drake’s attorney from playing the telephone calls at
the trial. Rather, the judge stated that she wanted transcripts
of the calls before they were played for the jury because she
“simply d[id]n’t know what [Drake’s attorney has] got in
mind or what he’s got in his recording.” Id. at 66. The judge
told Drake’s attorney that until he could establish a proper
foundation for playing the recorded phone calls during
cross-examination (by giving more specifics about what was
said in them), she would not let him play the phone calls.
The judge then remarked that the phone calls might “have to
come in on [Drake’s] case-in-chief” instead of during cross-
examination. Id. Under these circumstances, the district
court’s limitation of the cross-examination by Drake’s attor-
ney was reasonable.
42 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
The district court did not violate Drake’s Sixth Amend-
ment rights by limiting her cross-examination of Clark.
3. Sufficiency of the Evidence of Conspiracy
Drake next argues that the district court erred in denying
her Rule 29 motion because the evidence was insufficient to
distinguish her involvement with the cocaine-distribution
organization from that of a simple buyer-seller relationship.
We review a denial of a Rule 29 motion de novo. United States
v. Mandel, 647 F.3d 710, 717 (7th Cir. 2011). We consider
whether there was sufficient evidence from which a rational
jury could find Drake guilty beyond a reasonable doubt. Id.Buyer-seller relationships “do not qualify as conspiracies.
People in a buyer-seller relationship have not agreed to ad-
vance further distribution of drugs; people in conspiracies
have.” United States v. Brown, 726 F.3d 993, 1001 (7th Cir.
2013), cert. denied, 134 S. Ct. 1876 (2014); United States v. John-
son, 592 F.3d 749, 754 (7th Cir. 2010) (“To support a conspira-
cy conviction, there must be sufficient evidence of an agree-
ment to commit a crime other than the crime that consists of
the sale itself.”) (quotations and citations omitted). We re-
cently provided a clear statement of our approach to distin-
guishing conspiracies from buyer-seller relationships. In de-
termining whether there was a conspiracy, “we consider the
totality of the circumstances.” Brown, 726 F.3d at 1002. A rea-
sonable jury can infer a conspiracy from evidence of a con-
signment relationship, or a relationship exhibiting three
qualities: “multiple, large-quantity purchases, on credit.” Id.
Other characteristics that distinguish a conspiracy from a
buyer-seller relationship include “an agreement to look for
other customers, a payment of commission on sales, an indi-
cation that one party advised the other on the conduct of the
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 43
other’s business, or an agreement to warn of future threats to
each other’s business stemming from competitors or law-
enforcement authorities.” Id. at 999 (quoting Johnson, 592
F.3d at 755–56).
It is true, as Drake claims, that the police did not search
Drake’s car or home, and Drake did not have drugs on her
person at the time of arrest. Nonetheless, her recorded
phone calls to Mockabee provide the government with very
strong evidence that she was selling drugs, that Mockabee
was her supplier, and that Drake and Mockabee had an
agreement “to advance further distribution” of cocaine. See
Brown, 726 F.3d at 1001 (emphasis added). The most damag-
ing evidence against Drake includes her telephone conversa-
tion with Mockabee in which he told her that she was “slip-
pin’ in her pimpin.’” Later in the conversation, she told him
that “you can talk to me about my business. You about the
only one that can” because “my business is your business,
just like yours is mine.” Mockabee responded that she
“needed to stop that shit.” This conversation provides clear
evidence—even to a layman—that Mockabee and Drake
were in the drug distribution business together. It also is ev-
idence of Mockabee advising Drake on how to conduct her
business. Moreover, in this conversation Mockabee appears
to be warning her of a future threat.
Another piece of damaging evidence was Drake’s phone
call to Lonnie Belmar (who apparently owned the house in
which Mockabee was cooking crack cocaine) to warn him
that the police were a block away from his house. She
warned Belmar that the police “ha[d] somebody stretched
out in the alley, so I want y’all to be careful when you head
to the hood.” Later in the conversation, Drake talked about
44 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
warning Mockabee about the police presence as well. App.
Dkt. 70-2, 152. This conversation provides clear evidence of
Drake warning Belmar and agreeing to warn Mockabee of
future threats posed by law enforcement. During this con-
versation, Drake also mentioned that she “had one of [her]
stings call.” While testifying as an expert, Detective Clark
testified that “sting” was “common code language” for a co-
caine customer (in other words, “sting” was a drug term
used by others in addition to these particular defendants.
App. Dkt. 70-2, 152-53. Devon Hudgins had also testified
earlier that a “sting” was a “low level crack smoker.” App.
Dkt. 70-1, 99. Once again, this recorded conversation pro-
vides evidence that Drake was more than just a mere buyer
and seller of crack cocaine; she was a member of Mockabee’s
drug distribution conspiracy.
Furthermore, the government introduced evidence that
Drake and Mockabee engaged in nine cocaine transactions
from late November 2009 to early January 2010, and that at
least several of these transactions involved one ounce of
crack cocaine—distributor quantities. Although the govern-
ment had no evidence that Drake purchased cocaine from
Mockabee on credit and its evidence against Drake is entire-
ly circumstantial, the cumulative evidence—multiple, large-
quantity purchases, Mockabee’s advice to Drake about her
distribution efforts, and Drake’s warning to Belmar and
agreement to warn Mockabee of law enforcement activity
that threatened their drug distribution in the area—all raise
a reasonable inference that Drake and Mockabee were in a
conspiracy rather than a buyer-seller relationship. See Brown,
726 F.3d at 1002. Considering that the district court was re-
quired to “examine the evidence in the light most favorable
to the government” when evaluating Drake’s Rule 29 mo-
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 45
tion, Mandel, 647 F.3d at 717, the court did not err in finding
sufficient evidence from which a rational jury could find
Drake guilty beyond a reasonable doubt of the charged con-
spiracy.
4. Prosecutor’s Conduct During Closing Arguments
Drake points to several instances of alleged prosecutorial
misconduct during closing arguments, which she contends
denied her a fair trial. Where Drake objected to the prosecu-
tor’s remark, we review the district court’s decision to over-
rule her objection for an abuse of discretion. United States v.
Philpot, 733 F.3d 734, 745 (7th Cir. 2013). Where Drake did
not object, we review the district court’s decision to allow
the remarks for plain error. United States v. Graham, 315 F.3d
777, 782 (7th Cir. 2003). Under this standard, Drake is enti-
tled to a new trial only if she “can demonstrate an error that
is plain, that affects [her] substantial rights, and that serious-
ly affects the fairness, integrity or public reputation of the
judicial proceeding, effectuating a miscarriage of justice.”
United States v. Iacona, 728 F.3d 694, 699 (7th Cir. 2013) (cita-
tions omitted).
We evaluate claims of prosecutorial misconduct using a
two-part inquiry. Id. at 698–99. “First, we determine whether
the challenged conduct was improper, and second, we eval-
uate the conduct in light of the trial as a whole to decide if it
deprived the defendant of a fair trial.” Id. at 699. That evalu-
ation is guided by consideration of “the nature and serious-
ness of the remarks, whether the remarks were invited by
the defense, whether the remarks could be rebutted by de-
fense counsel, whether the district court provided a curative
instruction, and the weight of the evidence against the de-
fendant.” United States v. Lathrop, 634 F.3d 931, 940 (7th Cir.
46 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
2011) (citation omitted). We have recognized that “improper
statements made during closing argument are rarely re-
versible error.” Philpot, 733 F.3d at 745–46 (quotation and ci-
tation omitted).
First, Drake challenges the prosecutor’s remark in his re-
buttal argument that Belmar’s house had no heat. The prose-
cutor argued:
And this business about going to Lonnie
Belmar’s house for social purposes? Mr. Ansell
says look at Seron Poole. You can believe eve-
rything he has to say because his only incen-
tive is to tell the truth. Yeah? What did he say
about Lonnie Belmar’s house. “In the winter,
we didn’t go there for social purposes to hang
out. We didn’t go there because there is no heat
in the house.”
Drake asserts that Poole never said that the house lacked
heat during his testimony and that this mischaracterization
of Poole’s testimony “pierced the heart of her defense.”
Drake objected to the prosecutor’s statement that Poole testi-
fied there was no heat in the house, and the judge respond-
ed: “Overruled. The jury will rely on its own recollections of
the evidence in any event, but that objection may not be well
taken. So I’ll overrule it.”
Drake is correct that Poole never testified that Belmar’s
house at 736 West 25th Street lacked heat and there was no
other evidence that the house was without heat. The prose-
cutor misstated the evidence. In fact, Poole testified:
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 47
Q. So in the winter time, people would drink
alcohol and smoke marijuana socially at Lon-
nie Belmar’s house?
A. Yeah.
App. Dkt. 84-1, 61. Poole said the opposite of what the pros-
ecutor claimed he had said; Poole testified that he did social-
ize at 736 West 25th Street during the winter. Thus the dis-
trict court erred in overruling Drake’s objection to the prose-
cutor’s misstatement of Poole’s testimony.
However, we find that the court’s error did not negative-
ly impact the fairness of Drake’s trial. See Iacona, 728 F.3d at
699. The district court instructed the jury that the “argu-
ments of counsel are not evidence.” In addition, when the
judge overruled counsel’s objection to the prosecutor’s mis-
statement of Poole’s testimony, she instructed the jury that it
should “rely on its own recollection of the evidence.” “Jurors
are presumed to follow limiting and curative instructions
unless the matter improperly before them is so powerfully
incriminating that they cannot be reasonably expected to put
it out of their minds.” United States v. Tucker, 714 F.3d 1006,
1014 (7th Cir. 2013). Drake has given us no reason to think
that the jury could not follow the court’s instruction that ar-
guments of counsel are not evidence. Nor has she given us a
reason to think that the jury would not rely on its own recol-
lection of the evidence and put the prosecutor’s misstate-
ment about Poole’s testimony out of their minds. Further-
more, given the strength of government’s evidence against
Drake from the wiretapped phone conversations—and the
fact that the prosecutor only made this comment about the
lack of heat once—we do not believe that this inappropriate
remark deprived Drake of a fair trial.
48 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
Next, Drake disputes a number of other prosecutorial
statements, but these concerns were not raised at trial. She
complains that the prosecutor referred to Lonnie Belmar’s
house as a “crack house”; she argues that there was no evi-
dence to support that characterization. Drake also objects to
the prosecutor’s statement that Devon Hudgins’s mother
died of a crack overdose and submits that the prosecutor
improperly attacked Drake’s character “by linking her sup-
posed disregard for the welfare of others” to Hudgins’s
mother’s death. The prosecutor argued:
Elisha Drake’s a predator. She talks about
stings, and we know what stings are. Devon
Hudgins told [you] what … a sting was. His
mama was a sting, and she died of a crack
overdose. … [T]o Devon Hudgins, that’s per-
sonal. That’s what a sting is. To Elisha Drake,
that’s business. She’s a predator.
Finally, Drake argues that the prosecutor grossly mischarac-
terized her defense arguments, thereby inflaming and preju-
dicing the jury against her. Because Drake did not object at
trial to any of these remarks, we review the district court’s
decision to allow these statements for plain error. Graham,
315 F.3d at 782. We now take her objections in turn.
The prosecutor’s characterization of Belmar’s house at
736 West 25th Street as a “crack house” during closing ar-
guments was proper. The prosecutor had repeatedly re-
ferred to the house in question as a “crack house” when
questioning Detective Clark, and Drake’s counsel never ob-
jected to this characterization during Clark’s testimony.
App. Dkt. 70-2, 323, 358, 429. Even Drake’s own counsel re-
ferred to the crack house in questioning Detective Clark:
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 49
Q. During your investigation, you identified
781 West 25th Street as Ramone Mockabee’s
crack house; is that right?
A. Yes.
Q. Did he live at that residence?
A. No.
Id. at 515. More importantly, Clark’s testimony substantiates
the prosecutor’s statements that Belmar’s house was a “crack
house.” Thus the prosecutor’s characterization of the house
as a “crack house” was appropriate.
Drake also is correct that Hudgins never testified that his
mother died of a crack cocaine overdose. With respect to his
mother, Hudgins testified that he heard someone call his
mother a “sting” one day and that a “sting” was someone
who “smoked crack cocaine.” App. Dkt. 70-1, 137. He also
testified that his father was a heroin addict and that when he
was about four years of age, he witnessed his mother kill his
father with a knife. App. Dkt. 70-1, 86-87. Once again, the
prosecutor mischaracterized trial testimony. We expect
greater precision and care by government lawyers. But
Drake cannot show that she was prejudiced by this remark
such that her trial was unfair. The misstatement did not con-
cern an important fact.
Nor can Drake show that the other remarks deprived her
of a fair trial. Although the jury did not hear evidence that
Hudgins’s mother had died from a crack overdose, it heard
that she was a crack addict who killed Hudgins’s father in
front of him when he was only four years old. Consequently,
the jury had evidence that the damaging effects of crack co-
caine abuse were “personal” to Hudgins. And while calling
50 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
Drake a “predator” may have been harsh, “so long as the ev-
idence supports the comments, prosecutors may speak
harshly about the actions and conduct of the accused.” Unit-
ed States v. Turner, 651 F.3d 743, 752 (7th Cir. 2011) (quoting
United States v. Durham, 211 F.3d 437, 440 (7th Cir. 2000)
(concluding that prosecutor’s reference to defendant “as a
‘slick little dope dealer’ who ‘uses kids and exploits them to
peddle poison’” and reference to defendant’s brother as a
“dope dealer” and a “liar” were not improper)). And Drake
did refer to her customers as “stings,” which may raise a
reasonable inference that she had little regard for them and
their welfare. Furthermore, the weight of the government’s
case against Drake negates any concern that these remarks
denied her a fair trial.
Lastly, in rebuttal the prosecutor described the defense’s
central argument as follows: “[The defense would] like you
to think that there’s only a social relationship between Elisha
Drake and Ramone Mockabee,” Gov’t’s Supplemental App.
108, but (we are paraphrasing here), if you don’t believe that
and think there is a drug relationship, then it was a buyer-
seller relationship; if you believe it is a seller-seller relation-
ship, then it involved marijuana; and if you think it involved
crack cocaine, “[the defense wants] you to believe that
[Drake is] sweet and vulnerable,” id. These remarks were not
a gross mischaracterization of Drake’s defense, which
evolved throughout trial. The remarks were directed at the
weakness of her defense; they were not improper. See United
States v. Washington, 417 F.3d 780, 787 (7th Cir. 2005) (noting
that the prosecutor’s arguments “largely focused on the
lameness of the defense rather than the defense counsel per-
sonally” were not improper); United States v. Xiong, 262 F.3d
672, 675 (7th Cir. 2001) (noting that “it was proper for the
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 51
prosecutor to comment on the lameness of the defendant’s
case”). Even if these remarks were improper, Drake has not
shown that they prejudiced her, particularly given the sub-
stantial evidence of her guilt presented at trial.
5. Cumulative Error
Drake’s final argument is that even if the alleged errors
in isolation were harmless, their cumulative effect denied
her the constitutional right to a fair trial. To succeed on a
cumulative error theory, she must show that (1) two or more
errors occurred at trial, and (2) “when considered together
along with the entire record, the multiple errors so infected
the jury’s deliberation that they denied the petitioner a fun-
damentally fair trial.” Tucker, 714 F.3d at 1017 (quotation and
citation omitted). Even though Drake has shown that some
errors occurred at trial, none were severe enough, even con-
sidered cumulatively, to have affected the jury’s verdict giv-
en the overwhelming evidence against her.
C. Young - Sufficiency of the Evidence
Young argues on appeal that the district court erred in
denying his motion for acquittal under Rule 29 of the Feder-
al Rules of Criminal Procedure because the government did
not prove beyond a reasonable doubt that he participated in
the conspiracy. In other words, he argues that the govern-
ment failed to prove that he “agreed with any conspirator to
commit a crime beyond the crime of engaging in a drug
transaction.” On appeal, Young submits that “the govern-
ment proved only a buyer-seller relationship between him-
self and Ramone Mockabee, and … the government’s proof
regarding Gary Davis established only that he acted as an
aider and abettor to Young’s drug transactions.” He also
52 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
claims that the evidence showed only that he and Belmar
“discussed converting powder into crack cocaine, but did
not discuss engaging in any drug transactions or agreeing to
commit any crime.”
The government responds that Young waived the right
to challenge the sufficiency of the evidence based upon a
buyer-seller argument. “Although a motion for judgment of
acquittal need not spell out the particular basis for the chal-
lenge to the sufficiency of the evidence, when such a motion
raises specific arguments, any claims not presented in the
motion are waived.” United States v. Moore, 363 F.3d 631, 637
(7th Cir. 2004). In making his Rule 29 motion at trial,
Young’s counsel specifically argued that “there is an absence
of evidence in regard to any connection or nexus with Mr.
Young and any of the co-conspirators as it relates to carrying
out any type of agreement.”
As we know, “[a] drug sale is itself an agreement: a buy-
er and seller come together, agree on terms, and exchange
money or commodities at the settled rate.” Brown, 726 F.3d
at 998. However, a conspiracy “is the extra act of agreeing to
commit a crime.” Id. at 997. A “conspiracy to traffic drugs
requires an agreement to advance further distribution.” Id. at
998. While Young has refined his arguments on appeal, as
we might expect a defendant to do, his challenge to the suf-
ficiency of the evidence as to conspiracy at trial encom-
passed his finer-tuned argument that the government
proved merely that he had a buyer-seller relationship with
Mockabee. In essence, Young argued that the government
failed to prove that he agreed to further distribute drugs. We
find no waiver here.
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 53
Moreover, the government presented sufficient evidence
to establish that Young conspired to distribute crack cocaine.
To convict him of conspiracy, the government had to prove
that “(1) two or more people agreed to commit an unlawful
act, and (2) the defendant knowingly and intentionally
joined the agreement.” Johnson, 592 F.3d at 754. The govern-
ment need not prove the specific individuals with whom
Young conspired. See, e.g., United States v. Avila, 557 F.3d 809,
816 (7th Cir. 2009). The indictment charged that Young and
his nineteen co-defendants “knowingly conspir[ed] together
and with diverse other persons, known and unknown to the
Grand Jury, to distribute controlled substances.” Young Dkt.
177, 2 (emphasis added). Although the indictment alleged
that Young “distributed powder cocaine for Mockabee,”
most of the evidence that the government presented against
Young at trial focused on Young’s interactions with Gary
Davis (one of the original twenty defendants) and Earnest
French (not one of the original twenty defendants).
Young admits in his reply brief that “a rational jury could
find that he conspired with French to distribute crack co-
caine.” Young seems to think that he cannot be convicted of
conspiracy if all that the government can prove is his con-
spiracy with French. He argues that his conspiracy with
French “is not the crime for which [he] was charged in the
superseding indictment.” This argument ignores the plain
language of the indictment, which alleges that Young con-
spired “with diverse other persons” to distribute crack co-
caine. The government only needed to prove that Young en-
gaged in a conspiracy with one other person (not every per-
son identified in the indictment) in order for a jury to convict
him.
54 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
And we reject Young’s argument that proof of a conspir-
acy based on the transactions with French would amount to
a fatal variance between the conspiracy alleged in the in-
dictment and the government’s proof at trial. This claim,
which was first asserted in Young’s reply brief on appeal,
was raised far too late and was therefore waived. See, e.g.,
United States v. Kennedy, 726 F.3d 968, 974 n.3 (7th Cir. 2013).
Even if the claim was not waived, however, it still fails. A
conspiracy variance claim is treated as a sufficiency of the
evidence claim. United States v. Stevenson, 656 F.3d 747, 752
(7th Cir. 2011). To overturn his conspiracy conviction be-
cause of a variance, Young would have to show from the ev-
idence “both that he did not conspire with each defendant
and that he was prejudiced by being tried with defendants
who were not his coconspirators.” Id. at 753 (quoting United
States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991)). But he
has failed to demonstrate that he did not conspire with each
defendant. As shown below, there was sufficient evidence
that he conspired with codefendant Davis; thus we do not
reach the prejudice prong. Besides, evidence that Young
conspired with French to distribute crack cocaine fits well
within the larger conspiracy charged in the indictment.
The government presented evidence that Young was on
the same side of drug transactions as Davis, and thus en-
gaged in a conspiracy to distribute crack with him. “There is
sufficient evidence to establish a conspiracy … where the ju-
ry finds credible a government witness who shows that the
alleged coconspirators were ‘on the same side of the transac-
tion.’” United States v. Johnson, 437 F.3d 665, 675 (7th Cir.
2006) (quoting United States v. Smith, 393 F.3d 717, 720 (7th
Cir. 2004)); see also United States v. Rea, 621 F.3d 595, 608 (7th
Cir. 2010) (“[W]e have held that a conspiracy exists when the
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 55
defendant and a co-conspirator were on the ‘same side of the
transaction.’” (quoting Johnson, 437 F.3d at 675).
Davis testified at trial that he had made many car trips
with Young from Indianapolis to Columbus, Indiana be-
tween October 2008 and January 2010. Davis stated that he
and Young took these trips as often as “once a week.” App.
Dkt. 70-2, 40. On these trips, Davis agreed to carry crack for
Young on his person—most often in his underwear, and in
exchange, Young compensated Davis with “enough [crack]
to smoke.” Id. Upon arrival in Columbus, Davis would give
the cocaine back to Young, and Young would get out of the
car and meet either a man named “Frenchy” or a woman
named “Brook.” Id. at 44-50. (These names obviously corre-
spond to the aforementioned government witness Earnest
French and Brooke Taggart.) After his meetings with
“Frenchy” and “Brook,” Young would return with a “wad of
money.” Id. at 46. Assuming that the jury found Davis’s tes-
timony credible—and we must do so at this stage if at all
reasonably possible, see Brown, 726 F.3d at 1005—Davis’s tes-
timony presents clear evidence that Young was on the same
side of a drug transaction with his co-defendant. And Da-
vis’s testimony was corroborated by the January 8, 2010 in-
terdiction stop of Young and Davis, during which officers
recovered about one ounce of cocaine from Davis’s under-
wear. Therefore, we find sufficient evidence that Young con-
spired with Davis to distribute crack cocaine.
Moreover, the government has evidence from Young’s
conversation with Belmar that Young took part in a conspir-
acy to distribute crack with both Belmar (an original co-
defendant) and another unnamed party. At trial, the gov-
ernment presented a recorded conversation of Young appar-
56 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
ently asking Belmar for advice about how to cook some
troublesome powder cocaine into crack. Young said that he
had a “person” who “owe[d]” him and “ha[d] some soft-
ware, [but] it won’t get hard when you cook it.” App. Dkt.
78-2, 144-45, 147. In response, Belmar advised Young to
“melt it down,” “pour the water off,” “throw soda on it,”
and “keep stirring it up.” Id. at 145. This conversation pre-
sents evidence that Belmar was advising Young on his busi-
ness, which is one of the factors used to distinguish a con-
spiracy to distribute drugs from a mere buyer-seller relation-
ship. See, e.g., Johnson, 592 F.3d at 756. The conversation also
presents evidence that Young had sold drugs on credit to
another unnamed party. According to Detective Clark’s tes-
timony, Young’s statement that his “person” with the trou-
blesome powder cocaine “owe[d]” him indicated that Young
had previously given that person cocaine “on consignment,”
and that that person owed Young “money on the back end.”
App. Dkt. 78-2, 148. Sale on credit or consignment is another
one of the factors used to distinguish a conspiracy to distrib-
ute drugs from a mere buyer-seller relationship. Id.Accordingly, we conclude that the government presented
sufficient evidence that Young conspired to distribute con-
trolled substances, and the district court did not err in deny-
ing Young’s motion for judgment of acquittal.
IV. Post-Trial Error Claims
Although we affirm the convictions of Jones, Drake and
Young, for the reasons explained below we must vacate the
sentences of Jones, Mockabee, and Drake, and remand their
cases for further proceedings.
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 57
A. Jones – Fair Sentencing Act
Following his conviction, the district court sentenced
Jones to life on Count Eleven and 120 months on Count
Twelve, to be served concurrently. Jones maintains that the
district court’s denial of his request to be sentenced under
the Fair Sentencing Act of 2010 (FSA), 124 Stat 2372, was er-
ror because the Act applied to him at the time of sentencing.
See United States v. Dorsey, 132 S. Ct. 2321, 2331 (2012) (hold-
ing that the FSA’s more lenient penalties apply to defend-
ants who committed their crimes before the Act’s effective
date but were sentenced after that date). The government
has admitted error. We agree that the court erred and will
vacate Jones’s sentence and remand for resentencing con-
sistent with Dorsey and the FSA.
B. Mockabee
Mockabee pleaded guilty to Count One of the supersed-
ing indictment, charging him with the cocaine conspiracy in
violation of 21 U.S.C. § 846; Count Seven, charging him with
possession with intent to distribute five grams or more of
cocaine in violation of § 841(a)(1); and Count Eight, charging
him with possession of a firearm as a convicted felon in vio-
lation of 18 U.S.C. § 922(g)(1). He was sentenced to 360
months’ imprisonment on each count, to be served concur-
rently. He challenges his sentence on two grounds.
1. Ex Post Facto Clause
Mockabee first argues that his sentence violates the Ex
Post Facto Clause because the district court sentenced him
under the version of the guidelines in effect at the time of
sentencing—the 2010 version was in effect when he was sen-
tenced on May 27, 2011—rather than the 2009 version in ef-
58 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
fect at the time of the offense, which was complete by Janu-
ary 20, 2010. The 2010 version contained three adjustments
that were applied to Mockabee at sentencing: the credible
threat of violence adjustment in U.S.S.G. § 2D1.1(b)(2), the
crack house adjustment in U.S.S.G. § 2D1.1(b)(12), and the
criminal livelihood adjustment in U.S.S.G. § 2D1.1(b)(14)(E).
These adjustments were added to the guidelines after the
charged conspiracy had ended.
The government opposed Mockabee’s ex post facto argu-
ment in its brief and at sentencing, relying on our decision in
United States v. Demaree, 459 F.3d 791, 795–96 (7th Cir. 2006),
in which we held that applying the version of the guidelines
in effect at the time of sentencing does not violate the Ex Post
Facto Clause, even if that version took effect after the de-
fendant committed the offense and even if the version in-
creased the sentencing range. Since then the Supreme Court
decided Peugh v. United States, 133 S. Ct. 2072 (2012), overrul-
ing Demaree and holding that the Ex Post Facto Clause is vio-
lated “when a defendant is sentenced under Guidelines
promulgated after he committed his criminal acts and the
new version provides a higher applicable Guidelines sen-
tencing range than the version in place at the time of the of-
fense.” Id. at 2078. Because Mockabee was sentenced under a
more recent version of the sentencing guidelines, which pro-
vides for a higher guideline range than the guidelines in ef-
fect at the time of his offense, he must be resentenced.
2. Aggravating Role in the Offense
The second issue Mockabee raises is whether the district
court erred in applying a four-level sentence enhancement
under U.S.S.G. § 3B1.1(a) based on a finding that he “was a
leader or organizer of criminal activity that involved five or
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 59
more participants or was otherwise extensive.” Application
of this increase along with the other increases unchallenged
on appeal, less a reduction for acceptance of responsibility
brought Mockabee’s total offense level to 43. This combined
with his criminal history category of II yielded a sentencing
guideline range of life imprisonment. To the extent that
Mockabee challenges the district court’s factual determina-
tion that he exercised a leadership role in the charged of-
fense, we review for clear error. United States v. Rosen, 726
F.3d 1017, 1024 (7th Cir. 2013). We review the district court’s
interpretation and application of the guidelines de novo.
United States v. Walsh, 723 F.3d 802, 807 (7th Cir. 2013).
Mockabee does not challenge that the offense involved
five or more participants; he contests only whether he was
an organizer or leader. He says that he does not challenge
the district court’s findings of fact as to his role, but he con-
tests the court’s conclusions from the facts and its applica-
tion of the guideline to the facts. Mockabee maintains that,
although he was a buyer and seller of drugs in a large-scale
conspiracy, he did not have any “real or direct influence”
over other members in the conspiracy.
At Mockabee’s sentencing, Detective Clark testified that
Mockabee decided which cocaine source would be ap-
proached when the conspiracy needed to resupply. Clark
added that Mockabee contacted Poole, who introduced
Mockabee to Luter, and eventually Mockabee decided to
bypass Poole and purchase directly from Luter. Clark also
testified that Mockabee decided to cook the powder cocaine
purchased from his suppliers into crack cocaine and decided
where to cook the crack (at 781 West 25th Street). He also
chose his customers, set the prices for the crack, and decided
60 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
the quantities of crack to be distributed. And Mockabee de-
termined which customers were admitted through the back
door and which ones were allowed up into the kitchen at the
crack house to purchase cocaine from him, and he decided
that only one person would be allowed in at a time. In addi-
tion, according to Clark, Mockabee declined to sell to poten-
tial purchasers of small quantities, and instead referred them
to Lonnie Belmar and Diomoni Small, and Mockabee told
Belmar and Small to deal with those small-time customers.
The district court found that the evidence demonstrated
that Mockabee’s role was that of a leader or organizer, ex-
plaining that “in controlling his own behavior, he also con-
trolled and managed and led major aspects of this criminal
enterprise.” Mockabee Sent. Tr. 62–63. The district court re-
lied on the facts that Mockabee “located the sources of the
cocaine and determined who to deal with in terms of not just
his own acquisition of [cocaine], but in terms of supplying
his considerable network of buyers and purchases in quanti-
ties, by the way, that they were acquiring that suggested
clearly that they were distributing it themselves.” The court
also found that Mockabee was “the distribution point” for
his network, that he decided when his customers would get
the cocaine for distribution, how much cocaine they would
get, and the price they would pay for it. Id. at 63. In addition,
it found that Mockabee’s network of participants involved at
least five people who were involved in the conspiracy and
that Mockabee oversaw their activities in the conspiracy and
the distribution network. Id. at 63–64. And the court looked
to the evidence that Mockabee recruited Poole as a source of
supply for the cocaine, and then through Poole recruited
Luter as a source. The fact that law enforcement seized twice
as much money from Mockabee as from Luter, and much
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 61
more than anyone else, was also a basis for the court’s find-
ing.
“The ‘central concern’ of § 3B1.1 is the defendant’s rela-
tive responsibility for the commission of the offense.” Rosen,
726 F.3d at 1024 (quoting United States v. Vasquez, 673 F.3d
680, 685 (7th Cir. 2012)). In determining whether a defendant
was an organizer or leader under 3B1.1(a), “we have held
that courts may consider the factors outlined in Application
Note 4 to § 3B1.1(c), including the degree of control and au-
thority the defendant exercised over others.” United States v.
Vaughn, 722 F.3d 918, 935 (7th Cir.), cert. denied, 134 S. Ct. 541(2013). Those factors are “the exercise of decision making au-
thority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to
a larger share of the fruits of the crime, the degree of partici-
pation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and
authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4.
We have said that to justify a § 3B1.1(a) adjustment, “’the de-
fendant must have exercised some degree of control over
others involved in the commission of the offense or he must
have been responsible for organizing others for the purpose
of carrying out the crime.’” Rosen, 726 F.3d at 1025 (quoting
Vasquez, 673 F.3d at 685).
As Mockabee argues, middleman status alone is not suf-
ficient for purposes of § 3B1. See United States v. Brown, 944
F.2d 1377, 1382 (7th Cir. 1991). And it is also true that the fact
that a defendant sets the price to be paid for the drugs by the
conspiracy’s members alone is not dispositive under the
guideline. United States v. Thompson, 944 F.2d 1331, 1349 (7th
Cir. 1991). But that is not the only fact that supports the find-
62 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
ing that Mockabee was an organizer or leader of the conspir-
acy.
Mockabee challenges the district court’s reliance on the
fact that more than twice as much money was seized from
him than from Luter, yet Mockabee acknowledges that “the
claimed right to a larger share of the fruits of the crime” is a
factor to be considered in determining a defendant’s role in
the offense. See U.S.S.G. § 3B1.1 cmt. n.4. He argues that the
district court “teases far too much from limited facts.” Quar-
reling with the court’s reasonable inference drawn from a
fact does not establish clear error. See United States v. Salem,
657 F.3d 560, 563 (7th Cir. 2011) (“The district court may
draw reasonable inferences from the record in making its
factual findings at sentencing.”).
We also reject Mockabee’s argument that the controlling
aspects of his conduct were simply examples of him direct-
ing his own behavior as a buyer and seller of cocaine. The
district court was right: Mockabee controlled, managed, and
led the major aspects of the cocaine distribution conspiracy.
Mockabee was the center of the conspiracy. He ran the crack
distribution center at the 25th Street residence, making key
decisions as to supply, including when to cook the cocaine
into crack and how much. He controlled access to the house,
deciding who was admitted and when, who was allowed to
conduct business with him and who was sent to deal with
Small or Belmar. It was Mockabee who made the decision to
allow only one purchaser into the house at time, further con-
trolling others’ access to the crack house and their access to
the cocaine used for further distribution. And when he sent
customers to Small or Belmar, Mockabee instructed Small
and Belmar to deal with the customers, thus exercising au-
Nos. 11-2267, 11-2288, 11-2535 & 11-2687 63
thority over all these underlings—the low-level cocaine cus-
tomers, Small, and Belmar. Furthermore, Mockabee recruit-
ed Poole and then through Poole recruited Luter into the
distribution network. The evidence supports the finding that
Mockabee claimed a right to a larger share of the proceeds of
the conspiracy. Moreover, there was evidence that Mockabee
gave advice to Drake on how to run her part of the business,
which further reveals his leadership role. Each of the factors
listed in the application note to § 3B1.1 supports the conclu-
sion that Mockabee held an organizational and leadership
role in the conspiracy.
We find no clear error in the district court’s determina-
tion that Mockabee was an organizer or leader of the con-
spiracy, and the court’s application of the four-level adjust-
ment under § 3B1.1(a) to the facts of Mockabee’s case was
appropriate.
C. Drake
Drake brings two challenges to her sentence. She first ar-
gues that the district court erred in subjecting her to an en-
hanced mandatory minimum despite the absence of specific
jury findings regarding the drug quantities involved in the
conspiracy. Although Drake did not object at trial to the dis-
trict court’s instructions or verdict forms regarding drug
quantities, the Supreme Court’s recent decision in Alleyne v.
United States, 133 S. Ct. 2151, 2155 (2013), holds that any fact
that increases the mandatory minimum is an element of the
crime that must be submitted to the jury. Because the jury
failed to make specific findings regarding drug quantities,
which increased the mandatory minimum for her from five
to ten years, see 21 U.S.C. § 841(b)(1), we must remand her
case for resentencing.
64 Nos. 11-2267, 11-2288, 11-2535 & 11-2687
Drake also argues that using her prior felony drug con-
viction to increase the mandatory minimum sentence violat-
ed her Fifth and Sixth Amendment rights because the con-
viction was not alleged in the indictment or proven to the
jury. The Supreme Court in Almendarez-Torres v. United
States, 523 U.S. 224, 239, 243–47 (1998), rejected the argument
that a prior conviction triggering a mandatory minimum
sentence is an element of an offense that must be proved to a
jury beyond a reasonable doubt. See United States v. Elliott,
703 F.3d 378, 381 (7th Cir. 2012), cert. denied, 133 S. Ct. 2359(2013). Although Almendarez-Torres has been widely criti-
cized and is “vulnerable to being overruled,” id. at 381 n.2,
that is for the Supreme Court to decide, not us, id. The dis-
trict court did not err by finding that Drake’s prior felony
drug conviction increased her mandatory minimum sen-
tence.
V. Conclusion
For the foregoing reasons, Jones’s convictions on Count
Eleven and Count Twelve are AFFIRMED, and his sentence is
VACATED and REMANDED for resentencing consistent with
Dorsey; Drake’s conviction is AFFIRMED and her sentence is
VACATED and REMANDED for resentencing consistent with
Alleyne; Young’s conviction is AFFIRMED; and Mockabee’s
sentence is VACATED and REMANDED for resentencing con-
sistent with Peugh.