United States v. Tolliver, John L. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2910 & 05-2962
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN L. TOLLIVER and ARCHIE DUNKLIN, JR.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 04 CR 40014—J. Phil Gilbert, Judge.
____________
ARGUED APRIL 12, 2006—DECIDED JULY 19, 2006
____________
Before POSNER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. A jury convicted John Tolliver and
Archie Dunklin of conspiring to distribute and possess with
intent to distribute 50 grams or more of crack cocaine. The
district court sentenced Tolliver and Dunklin to 240 and 360
months of imprisonment, respectively. The defendants
appeal, raising two evidentiary arguments and challenging
portions of the jury instructions. We affirm in all respects.
2 Nos. 05-2910 & 05-2962
I.
The grand jury in this matter issued a superseding
indictment (hereinafter “the indictment”), charging John
Tolliver and Archie Dunklin with one count of conspiring
to distribute and possess with intent to distribute 50 or more
grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. According to the indictment, Tolliver
and Dunklin perpetrated this conspiracy with someone
named Reginald Walls and other unnamed persons from
January 2002 to March 2004. The conspiracy primarily
entailed purchasing crack cocaine in St. Louis, Missouri and
selling it in DuQuoin, Illinois.
The cases against Tolliver and Dunklin were tried
jointly in March 2005. In a three-day trial, the government
called more than a dozen witnesses, including Walls, to
show that during the relevant period Tolliver and Dunklin
each made numerous trips with an assortment of people
to St. Louis to purchase varying quantities of crack co-
caine. This evidence further showed that they transported
the crack cocaine back to DuQuoin, where they sold it.
These witnesses included those who traveled with the two
to St. Louis as part of the conspiracy, others who sold crack
cocaine to the conspiracy, and still others who purchased
crack cocaine from the conspiracy. According to these
witnesses, the conspiracy trafficked in well over 50 grams of
crack cocaine. Also, according to the trial testimony,
Dunklin once purchased powder cocaine in Memphis,
Tennessee, and, upon returning to DuQuoin, converted it
into more than 170 grams of crack cocaine.
Beyond this general background, three segments of the
trial are pertinent to this appeal. First, in addition to the
aforementioned testimony and other evidence, the gov-
ernment played two audiotapes for the jury concerning
Nos. 05-2910 & 05-2962 3
Dunklin. Each tape contained a recorded conversation
between Dunklin and a confidential informant named
Charles Shye. During the conversations, Shye made con-
trolled purchases of crack cocaine from Dunklin. Shye did
not testify at trial, but the government authenticated the
tapes through the testimony of a police detective named
Jamie Ellermeyer, who worked with Shye on the controlled
buys and the recordings. Additionally, the government
introduced the crack cocaine that Dunklin sold to Shye
during each conversation.
Second, Tolliver (unlike Dunklin) took the stand in his
own defense. Tolliver was the only defense witness at trial.
On direct examination, Tolliver confessed to being a “crack
addict” but denied the conspiracy charge against him,
attempting to paint himself as anything other than a
drug dealer. To further his claim of innocence, Tolliver
asserted that he had no reason to sell drugs because he
earned a legitimate income as a mechanic. At one point,
for instance, he stated: “I have no reason to sell crack.
I worked all my life.” During his direct examination,
Tolliver also attempted to blunt the testimony of Walls, the
co-conspirator named in the indictment. Tolliver flatly
rejected Walls’s statements that, during the relevant period,
Tolliver purchased crack cocaine in St. Louis and resold it in
DuQuoin. Tolliver further denied that he had “ever con-
ducted any drug business with” Walls.
On cross-examination, the government probed the
veracity of these denials. Specifically, the government,
after the district court overruled Tolliver’s objection at
sidebar, asked Tolliver about his prior drug dealings,
including a conviction from 1992. Before trial, the district
court had ruled that the government could not raise matters
related to that conviction, but, after hearing Tolliver testify,
4 Nos. 05-2910 & 05-2962
the district court allowed the government to bring up those
matters in response to Tolliver’s testimony. Through this
questioning, Tolliver admitted selling one crack-cocaine-
laced marijuana cigarette in 1991 and acknowledged
pleading guilty in 1992 to a corresponding state felony
charge. The government then inquired if, in relation to that
episode, Tolliver had spoken with the police about becom-
ing a confidential source against Walls. In that regard,
Tolliver denied ever telling the police that he could obtain
crack cocaine from Walls. He also denied informing the
police, in the context of that 1991-1992 investigation, that he
had been with Walls when Walls had brought crack cocaine
back from East St. Louis, Illinois to DuQuoin.
The government then called a retired DuQuoin police
officer named Gary Darnell as a rebuttal witness. Darnell
worked on the aforementioned 1991-92 case, and his
testimony refuted key points of Tolliver’s testimony. Darnell
reported that Tolliver had sold, not one, but four crack-
cocaine-laced marijuana cigarettes to undercover officers in
1991. Darnell also stated that, during the follow-up investi-
gation, he had spoken to Tolliver about becoming a confi-
dential source. In that context, according to Darnell, Tolliver
styled himself as a drug trafficker, stating that he could
obtain crack cocaine from Walls for Darnell’s investigation.
According to Darnell, during that investigation, Tolliver
also stated that he had been with Walls in East St. Louis and
brought crack cocaine back to DuQuoin.
Third, after each side rested, attention turned to jury
instructions. Three instructions are important to this appeal.
The district court’s Instruction 6 introduced the indictment
as the relevant charging document, cautioning that it was
not evidence of guilt. Instruction 11 defined the elements of
the crime and told the jury that, to convict, the government
Nos. 05-2910 & 05-2962 5
had to prove “that the conspiracy as charged in the Super-
seding Indictment existed.” In turn, the indictment, as is
customary in the post-Apprendi1 world, referenced the
necessary drug quantity for sentencing purposes: alleging
that the defendants “conspire[d] . . . to knowingly and
intentionally distribute and possess with intent to distribute
50 grams or more of . . . ‘crack cocaine’. . .” Additionally,
Instruction 12, in keeping with Apprendi, told the jurors that,
“if” they arrived at a guilty verdict, they “then” had to
determine the quantity of drugs involved in the conspiracy.
Verdict and special verdict forms reiterated these points.
In their deliberations, the jurors found each defendant
guilty of the charged conspiracy and further determined
that the conspiracy was responsible for 50 grams or more of
crack cocaine. Thereafter, the district court sentenced
Tolliver and Dunklin to 240 and 360 months of imprison-
ment, respectively. The defendants appeal.
II.
In this appeal, we confront three independent issues. First,
Dunklin challenges the admission of the audiotapes that
recorded two of his conversations with a confiden-
tial informant. Second, Tolliver contests the government’s
inquiry into his 1991 drug sale to undercover police officers,
his corresponding conviction, and related matters. Finally,
the defendants argue that portions of the jury instructions
referencing the indictment and drug quantity confused the
jury and led to erroneous convictions. We address each
issue in turn.
1
Apprendi v. New Jersey, 530 U.S. 466, 476, 490 (2000).
6 Nos. 05-2910 & 05-2962
A.
We begin with Dunklin’s challenge to the audiotapes
that recounted Dunklin selling crack cocaine to the confi-
dential informant, Shye. Dunklin concedes that this eviden-
tiary matter was not properly preserved and that, as a
consequence, our review is limited to plain error. See United
States v. Hodges, 315 F.3d 794, 800 (7th Cir. 2003). “Under the
plain error standard, we will not reverse a decision unless
the defendant demonstrates that (1) there was error; (2) the
error was plain; and (3) the error affected the defendant’s
substantial rights. If the defendant meets these three
requirements, we may correct the error if in our discretion,
we find the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Trennell, 290 F.3d 881, 887 (7th Cir. 2002) (quotations and
citations omitted).
Relying exclusively upon Crawford v. Washington, 541 U.S.
36 (2004), Dunklin argues for a new trial, contending that
the admission of the tapes violated his constitutional
right “to be confronted with the witnesses against him.”
U.S. Const. amend. VI. Crawford addressed the admission of
testimonial hearsay in criminal trials, holding that the Sixth
Amendment’s Confrontation Clause bars the admission of
such testimonial statements unless the declarant is unavail-
able and the defendant had a prior opportunity for cross-
examination. 541 U.S. at 68; see also United States v. Kelley,
446 F.3d 688, 691 & n.2 (7th Cir. 2006); United States v. Price,
418 F.3d 771, 780 (7th Cir. 2005). While Crawford did not
firmly define the word “testimonial” for every situation, see
541 U.S. at 68, examples and other guidance from the
Supreme Court indicate that the term pertains to statements
that a declarant makes in anticipation of or with an eye
toward a criminal prosecution. See Davis v. Washington, 126
Nos. 05-2910 & 05-2962 7
S. Ct. 2266, 2273, 2276, 2279 (2006); United States v.
Gilbertson, 435 F.3d 790, 795-96 (7th Cir. 2006) (collecting
authorities).
There are two declarants at issue here. The first is Dunklin
himself. His statements on the tapes constitute admissions
by a party-opponent, and, as such, those statements are, by
definition, not hearsay under Federal Rule of Evidence
801(d)(2)(A). See United States v. Spiller, 261 F.3d 683, 690
(7th Cir. 2001). Consequently, since the prohibition annunci-
ated in Crawford only applies to hearsay, that prohibition
does not cover Dunklin’s statements on the tapes. See United
States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005) (Crawford
inapplicable to another form of non-hearsay under Rule
801(d)(2), co-conspirator statements under Rule
801(d)(2)(E)). Furthermore, Dunklin—the target of this sting
operation who engaged in informal conversations with a
customer, not known to him to be an informant—did not
make his statements here with any expectation that they
would be used against him in a criminal trial. If anything, as
a purveyor of an illegal substance, Dunklin made these
statements believing the exact opposite. Moreover, unlike a
witness giving testimony, Dunklin was not recounting past
events on these tapes but was rather making candid, real-
time comments about drug transactions in progress. There-
fore, besides not being hearsay, Dunklin’s statements on the
tapes are also not testimonial and thus fall outside of the
Crawford rule against testimonial hearsay. See Davis, 126 S.
Ct. at 2275 (statements made “unwittingly” to a government
informant are “clearly nontestimonial” (citing Bourjaily v.
United States, 483 U.S. 171, 181-84 (1987))); id. at 2276-77,
2278-79 (indicating that, among other distinguishing traits,
statements recounting past events are testimonial whereas
statements relaying present-tense happenings are gen-
erally nontestimonial); United States v. Underwood, 446
8 Nos. 05-2910 & 05-2962
F.3d 1340, 1346-48 (11th Cir. 2006); United States v. Hendricks,
395 F.3d 173, 181, 183-84 (3d Cir. 2005); United States v.
Saget, 377 F.3d 223, 229-30 (2d Cir. 2004).2
The other declarant in question is Shye. It is important to
emphasize again that, aside from the testimonial versus
nontestimonial issue, a crucial aspect of Crawford is that
it only covers hearsay, i.e., out-of-court statements “of-
fered in evidence to prove the truth of the matter asserted.”
Fed. R. Evid. 801. Thus, to restate, Crawford only covers
testimonial statements proffered to establish the truth of the
matter asserted. See Price, 418 F.3d 780-81 (quoting and
explaining Crawford, 541 U.S. at 59-60 n.9); Hendricks, 395
F.3d at 183. In this case, as pointed out by the government,
2
Crawford’s focus was testimonial hearsay. As for treatment
of nontestimonial hearsay under the Confrontation Clause,
Crawford left the issue unresolved, stating: “Where nontesti-
monial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their develop-
ment of hearsay law—as does [Ohio v.] Roberts [448 U.S. 56
(1980)], and as would an approach that exempted such statements
from Confrontation Clause scrutiny altogether.” 541 U.S. at 68; see
also id. at 61; United States v. Danford, 435 F.3d 682, 687 (7th Cir.
2005); United States v. Dumeisi, 424 F.3d 566, 576 (7th Cir. 2005);
Saget, 377 F.3d at 227. However, the Supreme Court’s recent
decision on the matter, Davis v. Washington, appears to have
resolved the issue, holding that nontestimonial hearsay is not
subject to the Confrontation Clause. 126 S. Ct. at 2273, 2274-76,
2277-78. Even so, we need not pursue Dunklin’s constitutional
challenge beyond the Crawford framework because Dunklin has
not argued that, even if the statements at issue are deemed
nontestimonial, they still violate the Confrontation Clause. In
other words, there is no dispute here that, if the statements are
held nontestimonial, they do not run afoul of the Confrontation
Clause.
Nos. 05-2910 & 05-2962 9
Shye’s statements were admissible to put Dunklin’s admis-
sions on the tapes into context, making the admissions
intelligible for the jury.3 Statements providing context for
other admissible statements are not hearsay because they
are not offered for their truth. See United States v. Gajo, 290
F.3d 922, 930 (7th Cir. 2002); United States v. Plescia, 48 F.3d
1452, 1463 (7th Cir. 1995). As a result, the admission of such
context evidence does not offend the Confrontation Clause
because the declarant is not a witness against the accused.
See Crawford, 541 U.S. at 51, 59-60 n.9; United States v. Davis,
890 F.2d 1373, 1380 (7th Cir. 1989); United States v. Hansen,
434 F.3d 92, 100 & n.9 (1st Cir. 2006); Hendricks, 395 F.3d at
183. Therefore, as Shye’s statements were readily admissible
as this form of non-hearsay, not subject to the strictures of
Crawford and the Confrontation Clause, Dunklin’s argument
here does not entitle him a reversal under the plain error
standard.4
3
Dunklin has not challenged the government’s characteriza-
tion of this evidence, nor has he given us any indication that the
government used Shye’s statements for any reason other than to
place Dunklin’s admissions into context. Further, before us,
Dunklin has not explicitly contested the absence of limiting
instruction on the use of this evidence. Such an instruction
was not given at the time the evidence was introduced be-
cause Dunklin did not request one or otherwise raise an objec-
tion. Moreover, even after Dunklin brought his Crawford issue
to the district court’s attention (after the close of all evidence
but before closing arguments), he still did not request any
such limiting instruction. He is thus confined to plain error
review. See United States v. Breland, 356 F.3d 787, 792 (7th Cir.
2004); see also United States v. Walter, 434 F.3d 30, 35 (1st Cir.
2006).
4
In his brief, Dunklin also hints at an authentication argument,
(continued...)
10 Nos. 05-2910 & 05-2962
B.
Next, we turn to the district court’s decision allowing
the government’s inquiry into Tolliver’s 1991 sale of
drugs to undercover police officers and related matters. We
review such evidentiary rulings only for an abuse of
discretion. See United States v. Zizzo, 120 F.3d 1338, 1355 (7th
Cir. 1997).
As highlighted above, Tolliver, in defending himself on
the witness stand, tried to communicate two pivotal points
to the jury. First, he cast himself as someone who was
not a drug dealer, asserting he had no reason to sell
drugs. Second, in a related but more specific vein, he denied
working with Walls, the co-conspirator named in the
indictment, to sell drugs. Critically, in the course of
this direct testimony, Tolliver did not limit his statements to
the period of the alleged conspiracy, i.e., 2002 to 2004.
Rather, he denied ever selling drugs. For example, as
mentioned above, Tolliver told the jury that he had “no
reason to sell crack” because he had “worked all [his] life.”
At another juncture, he stated that it was “[n]ot my bag to
(...continued)
suggesting that the tapes could not be admitted through the
testimony of Ellermeyer, the detective. Ellermeyer supervised
each controlled purchase and its recording and further re-
viewed each recording one-on-one with Shye. The record
shows that, before the admission of each tape, Ellermeyer
testified that each tape was a true and accurate recording of each
conversation and also that he was familiar with Shye’s and
Dunklin’s voices. As such, the government adequately authenti-
cated each tape. See United States v. Westmoreland, 312 F.3d 302,
310-11 (7th Cir. 2002); United States v. Degaglia, 913 F.2d 372, 375-
76 (7th Cir. 1990); Fed. R. Evid. 901(a) & (b)(5).
Nos. 05-2910 & 05-2962 11
sell no [sic] drugs.” He also testified that he did not
“consider” himself to be “in that class of people” “who sell
or deal or conspire to sell and deal in crack cocaine.”
Similarly, with respect to Walls, Tolliver was asked: “Have
you ever conducted any drug business with Mr. Walls?”
Tolliver replied: “No, sir. . . . No business, no sales.”
Through his testimony, therefore, Tolliver sought his
acquittal by placing before the jury the notion that he had
never been a drug dealer, with Walls or otherwise.
Such a strategy was not without risk. By becoming a
witness, Tolliver exposed himself to cross-examination and
the possibility that his testimony would be impeached. See
United States v. Gaertner, 705 F.2d 210, 216 (7th Cir. 1983).
After Tolliver laid his blanket denials of ever having traf-
ficked in drugs before the jury, the government was entitled
to test the accuracy of that evidence. See Zizzo, 120 F.3d at
1355; Gaertner, 705 F.2d at 216. In other words, by casting
himself as something other than a drug dealer,
who additionally had never done business with Walls,
Tolliver “opened the door” for the government to impeach
that testimony. This enabled the government to extract
evidence about Tolliver’s prior drug dealing, including his
1991 sale of crack-cocaine-laced marijuana cigarettes to
undercover police officers. His related comments describing
his relationship with Walls were also exposed. See Zizzo, 120
F.3d at 1355; Gaertner, 705 F.2d at 216; see also Gilbertson, 435
F.3d at 797 (“[W]hen a party opens the door to evidence that
would be otherwise inadmissible, that party cannot com-
plain on appeal about the admission of that evidence.”
(citation omitted)). Therefore, given certain sweeping
denials within Tolliver’s direct testimony, the district court
did not abuse its discretion in permitting the government to
impeach that testimony and allowing the jury to hear both
sides of the story.
12 Nos. 05-2910 & 05-2962
C.
The defendants also contest portions of the jury instruc-
tions. They concede that they did not object to the instruc-
tions as given; as a result, we review only for plain error. See
United States v. Jones, 418 F.3d 726, 729 (7th Cir. 2005). We
have two arguments to address here.
First, Tolliver and Dunklin contend that interplay between
the instructions and indictment with respect to drug
quantity caused confusion that resulted in an unfair trial.
Three instructions are at issue. The district court’s Instruc-
tion 6 introduced the indictment to the jury. It directly
tracked the text of the pertinent pattern instruction. See
Seventh Circuit Pattern Criminal Jury Instructions 2.01
(1999).
Instruction 11 explained the elements of the crime. As
discussed at oral argument, Instruction 11 is a modified
version of our Pattern Instruction 5.08. However, the district
court’s modifications do not materially affect the drug
quantity issue before the court. In relevant part, Pattern
Instruction 5.08 states: “To sustain the charge of conspiracy,
the government must prove: First, that the conspiracy as
charged in Count __ existed . . . .” Seventh Circuit Pattern
Criminal Jury Instructions 5.08 (1999). Similarly, Instruction
11 stated: “To sustain the charge of conspiracy against a
defendant, the government must prove these elements
beyond a reasonable doubt as to that defendant: First, that
the conspiracy as charged in the Superseding Indictment
existed . . . .”5 In this case, the phrase “conspiracy as
5
The district court made several additions to the pattern
instruction, accenting and clarifying certain conspiracy law
(continued...)
Nos. 05-2910 & 05-2962 13
charged” meant, according to the indictment, a conspiracy
to “distribute and possess with intent to distribute 50 grams
or more of . . . ‘crack cocaine’. . . . “
Instruction 12 began by stating: “If you find a defendant
guilty of the conspiracy charged in the Superseding Indict-
ment, then you must complete the Special Verdict Form
pertaining to that defendant to determine the quantity of
drugs involved in the charged conspiracy. If you find a
defendant not guilty, leave the Special Verdict Form
pertaining to that defendant blank.” The instruction then
meticulously explained the special verdict forms to the jury,
tracking the applicable quantity distinctions laid out in
§ 841(b)(1) (i.e., 50 grams or more, 5 grams or more, less
than 5 grams). The discussion of drug quantity in the
indictment and in Instruction 12 is a direct result of the
structure of § 841(b)(1) and Apprendi, which held “that facts
(other than a prior conviction) that raise a defendant’s
sentence above the statutory maximum for the crime of
conviction must be charged in an indictment, submitted to a
jury, and proven beyond a reasonable doubt.” United States
v. Dumes, 313 F.3d 372, 384-85 (7th Cir. 2002). We have,
furthermore, previously approved the general framework
employed here by the district court.6 See, e.g., United States
v. Macedo, 406 F.3d 778, 785-86 & n.7 (7th Cir. 2005); United
(...continued)
nuances for the jury. These additions were mostly taken from the
suggestions made in Committee Comment (b) that follows
Pattern Instruction 5.08.
6
Instruction 12 does not have an equivalent pattern instruction
at the current time, as our present pattern instructions (issued
in 1998 and published in 1999) have not been reissued since
Apprendi (decided in 2000).
14 Nos. 05-2910 & 05-2962
States v. Knight, 342 F.3d 697, 709-12 (7th Cir. 2003); United
States v. Smith, 308 F.3d 726, 740-42 (7th Cir. 2002).
Nevertheless, Tolliver and Dunklin lament Apprendi’s
impact on their jury instructions. Most disconcerting to
the defendants is the fact that the instructions used the
phrase “the conspiracy as charged in the Superseding
Indictment.” They maintain that, because the instructions,
particularly Instruction 11, cross-referenced the indict-
ment and because the indictment mentioned a drug quan-
tity, the instructions confused and misled the jury into
prematurely making a quantity determination—i.e., decid-
ing guilt and quantity simultaneously—and giving the
quantity inquiry short shrift. In the defendants’ words: “The
only way the jury can place ‘guilty’ on the verdict form is to
determine the conspiracy existed in the Superseding
Indictment which necessitates a determination that [a
defendant] agreed to more than 50 grams of crack.”
Of course, if that were true, it would cut both ways. If
the jury combined the conspiracy and quantity determina-
tions into one, the jury would then erroneously acquit the
defendants of conspiracy if the jury believed that less than
50 grams were at issue. However, the defendants’ conten-
tion is not true. Jury instructions must be viewed as a whole,
see Knight, 342 F.3d at 709, and, as a whole, these instruc-
tions are neither confusing nor misleading. The key is the
“if-then” combination in the first two sentences of Instruc-
tion 12. Any potential for confusion along the lines alleged
by the defendants was dispelled by those two sentences
which are quoted above. The first sentence, to summarize,
told the jurors: “if” you find that a conspiracy existed,
“then” determine the quantity of crack cocaine at issue by
using the special verdict forms; the second sentence in-
structed: “if” you alternatively determine that a conspiracy
Nos. 05-2910 & 05-2962 15
did not exist, then leave the special verdict forms blank
because a drug quantity determination is unnecessary. The
special verdict forms also helped negate any potential for
confusion. These forms restated the contingent nature of the
drug quantity inquiry, directing the jurors to answer the
special verdict questions only “if” they first found the
defendants guilty of conspiracy. Consequently, the instruc-
tions, along with the special verdict forms, made the jurors
aware that, upon entering the jury room, they had to
confront two separate and sequential inquiries, first conspir-
acy and then, only if necessary, quantity. Further, as to the
defendants’ underlying concern, the carefully worded text
of Instruction 12 and the special verdict forms afforded the
jury a genuine opportunity, upon a conspiracy conviction,
to find that the conspiracy was responsible for less than
50 grams of crack cocaine. Viewing the instructions as
whole, therefore, we conclude that the instructions treated
the relevant issues fairly and accurately. See United States
v. Alhalabi, 443 F.3d 605, 612 (7th Cir. 2006); Knight, 342
F.3d at 709. We thus find no error here, let alone a plain one.
Second, Tolliver claims that, in terms of drug quantity, the
jury instructions denied him his right to a unanimous
verdict. He speculates that, given the large number of
transactions that the government put into evidence, individ-
ual jurors may have reached the jury’s 50-gram-or-more
finding via different routes. According to Tolliver, therefore,
Instruction 12 and the attendant language on his special
verdict form directing the jury to agree unanimously upon
a drug quantity range (e.g., 50 grams or more, 5 grams or
more) was insufficient. Instead, Tolliver believes that the
district court should have instructed the jurors to reach
unanimity upon the transactions and even the specific
pieces of crack cocaine for which they believed he was
individually responsible. However, “[d]rug quantity is not
16 Nos. 05-2910 & 05-2962
an element of a § 841 drug offense,” and, in the context of
quantity determinations, the law only requires that the jury
reach unanimous agreement upon a drug range, not upon
specific amounts, transactions, or morsels. Smith, 308 F.3d
at 740-42 (“We do not believe that, under Apprendi, the
district court was required to take the additional step of
asking the jury to return a specific finding of drug amount,
which would ostensibly reflect the jury’s agreement on the
occurrence of specific drug transactions.”); see also Macedo,
406 F.3d at 786-87. Additionally, in the conspiracy context,
the jury need not make a defendant-specific quantity
determination. See Knight, 342 F.3d at 710-12 (“Apprendi
[does] not require defendant- specific findings of drug type
and quantity to a conspiracy charge. . . . Once the jury
determines the existence of the conspiracy, the defendants’
participation in it, and assigns a type and quantity attribut-
able to the conspiracy as a whole, it has established the
statutory maximum sentence that any one participant in that
conspiracy may receive.”); see also United States v. McGee,
408 F.3d 966, 986 n.4 (7th Cir. 2005). Accordingly, there is no
error in these instructions, plain or otherwise.
III.
In sum, the defendants have not presented us with a
reversible error in this case. The admission of audiotapes of
Dunklin’s candid conversations with Shye, the confidential
informant, did not run afoul of the Confrontation Clause.
Further, Tolliver’s broad-brush denials of ever having sold
drugs, with or without Walls, the named co-conspirator,
opened the door for the government to impeach that
testimony by raising Tolliver’s 1991 drug sale to undercover
police officers and related matters. Finally, when read as a
whole, the jury instructions address the necessary references
Nos. 05-2910 & 05-2962 17
to the indictment and drug quantity fairly and accurately.
Accordingly, the judgment of the district court in each
defendant’s case is AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-06