United States v. Oluwadamilola Are ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3246, 07-3247, 07-3928 & 08-2269
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
O LUWADAMILOLA A RE, A NTWAN D ANIELS,
JEROME M URRAY and JULIUS S TATHAM,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 650—Ronald A. Guzmán, Judge.
A RGUED A PRIL 1, 2009—D ECIDED D ECEMBER 30, 2009
Before P OSNER, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. This is a drug conspiracy case
involving multiple defendants, twenty-seven counts, a
variety of illegal drugs, guns, and the use of a telephone
to facilitate a drug conspiracy. The drug activity
centered around the “Four Corner Hustlers” gang on the
south side of Chicago, an organization that has been
mentioned in several opinions of this court over the last
2 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
decade. See, e.g., United States v. Longstreet, 567 F.3d 911 (7th
Cir.), cert. denied, ___ S. Ct. ___, 78 U.S.L.W. 3294 (U.S.
Nov. 16, 2009) (No. 09-7065); United States v. Haynie, 179
F.3d 1048 (7th Cir. 1999). Jerome Murray (the “Chief” of the
gang) and Julius Statham pled guilty; Antwan Daniels
and Oluwadamilola Are were tried by a jury. The
defendants-appellants challenge several pretrial rulings
and the admission of law enforcement expert evidence
on the meaning of coded language. They also raise
several sentencing issues. In addition, Are claims a viola-
tion of Brady v. Maryland, 373 U.S. 83 (1963), and Napue v.
Illinois, 360 U.S. 264 (1959). The number of issues raised
results in a lengthy opinion, but ultimately we affirm. Our
review of the record leads us to the conclusion that, by
and large, the district court handled this case very well.
I. Background
Jerome Murray was the chief of the “Four Corner Hus-
tlers” gang on the south side of Chicago. He was con-
victed of murder in 1987. Following his release from
prison in late 2001, he assumed the leadership role in the
gang since other gang members looked up to him because
of, among other things, his prior conviction. The Four
Corner Hustlers were heavily involved in trafficking
heroin, cocaine, and crack cocaine in the Chicago area.
Murray bought wholesale quantities of the drugs to sell
to customers, including other gang members, and his
customers, in turn, distributed the drugs to their own
customers. Oluwadamilola Are and Julius Statham sup-
plied Murray with heroin and cocaine, respectively.
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 3
Antwan Daniels (“Sko”) bought heroin directly from Are,
through another person, with Murray’s assistance. One
such transaction occurred on January 26, 2005, when Are
supplied Daniels with about 50 grams of heroin through
a person identified as “Rocco” (a\k\a “Heavy” and “Lil’
Morocco”).
Prior to that, on January 25, Murray was recorded in a
telephone call asking Daniels if he wanted “$50, man for
that or a $100?” Murray immediately called Are, asking to
“borrow fifty dollars,” and explaining that he had “just
hollered . . . at Sko [Daniels].” Are agreed and, half an
hour later, he instructed Murray to call an individual
named “Heavy” or “Lil’ Morocco,” and Murray did. In
subsequent telephone calls, Murray arranged an in-
person meeting between Daniels and Rocco. Law enforce-
ment agents were conducting surveillance and observed
Murray enter an apartment building and later meet
with Daniels and another person at a convenience store.
The next day, January 26, Murray asked Are if he had
“call[ed] back, uh, Sko?” Murray later spoke with Daniels,
who talked Murray down to a price of $3,000 for the 50
grams of heroin. Murray then instructed Daniels to “hit
Little Morocco . . . .” Rocco subsequently confirmed with
Murray the quantity that Daniels was to get, asking if “this
is twenty-five dollars,” and Murray told Rocco to “give
him, uh, fifty dollars.” Later that evening while under
surveillance, Rocco met with Daniels. Shortly after that
meeting, law enforcement conducted a traffic stop of
Daniels and seized 49.6 grams of heroin. Not wanting to
jeopardize their investigation, the officers did not arrest
Daniels but let him go.
4 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
After the seizure, Daniels called Rocco, who then called
Murray. Murray asked Rocco if he had “holler[ed] at
Olewah [Are]?” Rocco said, “no,” and Murray reassured
him that there “ain’t nothin’ to, uh, panic about.” Murray
made some calls and then he, Rocco, and an unidentified
male met at a McDonald’s. They were later joined by Are.
Ronald Kimble, a Chicago Police Department (“CPD”) task
force officer, was posing as a homeless person and over-
heard some of the conversation between Murray, Rocco,
Are, and the unidentified male. Kimble heard Murray say
“they got the shit,” “that that was the cost of doing busi-
ness,” and “better him than me.” Kimble thought it
appeared that Are lectured Rocco and the unidentified
male. Kimble testified that Are was animated and in-
structed the others on how to evade the police by
changing meeting locations and erratic driving. According
to Kimble, Murray appeared disinterested, walking
away, pacing up and down, and looking out the window.
Kimble also said that Are’s instructions were directed at
the other two men.
Both Murray and Statham pled guilty pursuant to
written plea agreements to Count One of the indictment,
which charged them, Are, Daniels, and others with a
criminal drug conspiracy in violation of 21 U.S.C. § 846.
Are and Daniels were tried by a jury. At trial, the govern-
ment introduced sixty-one recorded calls in its case-in-
chief. The recorded conversations were between Jerome
Murray and others including Are, Daniels, Murray Brown,
Rocco, and Catherine Fauntleroy (Jerome Murray’s wife).
Following several days of evidence, Are and Daniels
were convicted as charged. Are was found guilty of three
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 5
counts: the drug conspiracy charged in Count One, distri-
bution of heroin in violation of 21 U.S.C. § 841(a)(1),
and knowingly and intentionally using a telephone to
facilitate the commission of the drug conspiracy in viola-
tion of 21 U.S.C. § 843(b). Daniels was convicted of five
counts: the drug conspiracy charged in Count One, posses-
sion with intent to distribute heroin in violation of
§ 841(a)(1), possession of a firearm as a convicted felon
in violation of 18 U.S.C. § 922(g)(1), and two counts of
knowingly and intentionally using a telephone to
facilitate the commission of the drug conspiracy in viola-
tion of § 843(b). They filed post-trial motions for judg-
ment of acquittal or new trial, all of which were unsuc-
cessful. The district court sentenced all four defendants
to prison: Are received 96 months, Daniels 180 months,
Murray 262 months, and Statham 125 months. These
appeals followed and are consolidated for disposition.
II. Discussion
We first address the challenges to the district court’s
denial of two motions to suppress, followed by Are’s
claims under Brady and Napue, and then Are’s and
Daniel’s challenge to the admissibility of expert testimony
on the meaning of code words. After that we will turn to
the various sentencing challenges. Additional factual
background will be provided as necessary along the way.
A. Daniels’ Motion to Suppress
Daniels contends that the district court erred in
denying his motion to suppress both his post-arrest
6 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
statement about the location of a gun and the gun itself.
We review the district court’s legal conclusions de novo
and its factual findings for clear error. United States v.
Marrocco, 578 F.3d 627, 632 (7th Cir. 2009).
Background
On July 19, 2005, FBI agents and two CPD officers went
to Daniels’ Country Club Hills home at 6:00 A.M . to
execute a warrant for his arrest. They were aware that
Daniels was being arrested for a drug conspiracy and
that he had several prior arrests for drug and weapons
offenses. FBI Agent Helen Dunn led the arrest team of
the nine officers and agents. She knocked on Daniels’ door
and was greeted and allowed to enter by his wife, who
directed them to the master bedroom. On the way
there, the team conducted a brief protective sweep of the
house, finding two young children in another bedroom.
The children were brought, along with their mother, to
the dining/living room area. Daniels was handcuffed in
the bedroom and taken to the living room at about
6:05 A.M .
Before he was advised of his Miranda rights, an FBI agent
asked him whether there were any weapons in the
house, to which he replied that there was an AK-47 under
the dresser in the bedroom. A CPD officer and FBI agents
immediately went to the bedroom to look for the gun, but
could not locate it under the dresser. An officer went
back to the living room to report that the AK-47 could not
be found. Upon hearing that, Daniels snickered and said
that he must have gotten rid of it. Meanwhile, the officers
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 7
continued to search the bedroom, eventually finding the
AK-47 assault rifle on the floor in a nearby closet. The
search ended as soon as the gun was located. At approxi-
mately 6:10 A.M ., Daniels was placed in an FBI car.
Daniels moved to suppress his post-arrest statement
and the AK-47 firearm found in his residence. After
holding an extended suppression hearing, the district
court denied the suppression motion. The court con-
cluded that the search was justified by exigent circum-
stances, specifically that Daniels’ wife and children were
present in the house and potentially could have
retrieved the gun. The court also determined that the gun
would have been inevitably discovered anyway, based
on Daniels’ statement. The court allowed the statement
under the “public safety” exception to Miranda.
1. Post-Arrest Statement
Daniels argues that admission of his post-arrest state-
ment about the location of the gun was in error because
the public safety exception was inapplicable. Under the
“public safety” exception to Miranda established in New
York v. Quarles, 467 U.S. 649 (1984), police officers can
ask a suspect questions without first giving Miranda
warnings if they reasonably believe it is “necessary to
secure their own safety or the safety of the public.” Id. at
659. In Quarles, a woman told police she had just been
raped and she described the suspect and where he was
going (a supermarket). She also said that he had a gun.
Id. at 651-52. The officers pursued the suspect, appre-
hended him in the supermarket, and discovered he was
8 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
wearing an empty shoulder holster. Before giving the
suspect his Miranda warnings, the officers asked him
where the gun was, and he told them it was in the super-
market. This statement and the gun were excluded
from evidence under Miranda. Id. at 652-53. The Supreme
Court reversed on the basis of the “public safety” excep-
tion.
Here, the district court concluded that this exception
applied based on the following: (1) the warrant
established that Daniels had engaged in drug trafficking
and had a criminal history for drug and weapons offenses;
(2) the home had not been thoroughly searched, so any
weapons present could have been hidden anywhere, even
near the handcuffed Daniels; and (3) police could not
rule out the possibility that another person was in the
home. Daniels argues that the “public safety” exception
should not apply here because he and the house were
secured at 6 A.M . by nine armed officers who had per-
formed a protective sweep and had no reasonable
concern for their safety or for that of anyone else. From a
broader perspective, Daniels argues that, if the public
safety exception is applied here, it would render
Miranda meaningless in the arrest-warrant execution
context.
Daniels is right that his case is different in several
respects from Quarles. First, the officers had no specific
reason to believe that Daniels had a gun, only that he had
prior weapons convictions and was involved in drug
trafficking, which often involves weapons. Second,
Daniels was found in his home with his family, rather
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 9
than in a public place like a supermarket. Third, a team
of nine officers were present and had conducted a pro-
tective sweep. However, as the government points out, a
sister circuit confronted a similar situation in United
States v. Williams, 181 F.3d 945 (8th Cir. 1999). In that case,
the police were executing a search warrant and arrested
the defendant in the process. They asked the defendant
if there was “anything we need to be aware of,” and he told
them about a gun he had. Id. at 953. Though Williams
was handcuffed, the court found the statement admissible
under the public safety exception, explaining:
[T]he officers could not have known if any armed
individuals were present in the apartment or
preparing to enter the apartment within a short
period of time. Similarly, the officers could not
have known whether other hazardous weapons
were present in the apartment that could cause
them harm if they happened upon them unex-
pectedly or mishandled them in some way.
Id. at 953-54 (footnote omitted). The court also relied on the
fact that the officers had information that Williams had
been arrested before on a weapons charge and was
dealing drugs out of his apartment. The court considered
a gun one of the “tools of the trade” for drug dealers. Id.at 954 n.14.
Daniels tries to distinguish Williams based on the fact
that the officers knew Williams had been dealing drugs
out of his apartment. This distinction is not significant,
though. The Williams court relied more heavily on the
general risks posed to officers in the arrest context than
10 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
on the specific facts of the case. And the fact that Williams
was dealing out of his apartment seems less important
than the fact that he was a drug dealer and guns are
the tools of the drug trade.
We, too, have concluded that questioning a suspect
about whether he has a gun may fall within Quarles’ public
safety exception. See United States v. Edwards, 885 F.2d
377 (7th Cir. 1989). In Edwards, the defendant was
handcuffed and searched for weapons and contraband.
None were found, but then he was asked if he had a gun.
We decided that it was appropriate for the detective to
ask the defendant if he had a weapon that might pose
a threat to the detective or others in the area and upheld
the admission of the defendant’s statements. Id. at 384. We
relied on the fact that drug dealers are known to arm
themselves, especially when dealing drugs, in order to
protect themselves, their drugs, and cash. Id.The FBI agent’s question to Daniels about the presence
of a weapon in the house falls within the “public safety”
exception to Miranda. The question seemed “reasonably
prompted by a concern for the public safety.” Quarles,
467 U.S. at 656. Though Daniels was cuffed and the
officers and agents had conducted a brief protective
sweep, they knew that Daniels was a drug dealer who
was being arrested for drug conspiracy charges. They
also knew that he had several prior drug and weapons
offenses. But they did not know the location of any
weapon that he may have had in the house. A weapon
might have been hidden near the place where the
officers placed Daniels before taking him outside and
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 11
thus would have been within his reach. Or it could have
been in an easily accessible location for Daniels to lunge
for on his way out the door. Therefore, it was reasonable
for the officers and agents to believe that Daniels might
have a gun on the premises and to ask him whether he
had any weapons in the house.
Furthermore, the presence of Daniels’ wife and children
bolsters the conclusion that the question about a
weapon falls within the public safety exception. The wife
and children would be free to roam the house as the
officers were leaving. Any one or all of them may have
known the gun’s location. It is conceivable that one of
them could have retrieved the gun and attempted to use
it against the officers and agents as they took Daniels
away. And even when a quick protective search of a
residence is conducted, the potential presence of an
undiscovered but dangerous individual with access to a
weapon cannot be discounted. The district court did not
err in denying Daniels’ motion to suppress his state-
ment about the location of the weapon.
2. The Gun
Daniels also challenges the admission of the gun
which the court concluded was justified on the grounds of
exigent circumstances and inevitable discovery. Daniels
asserts that several sister circuits apply the inevitable
discovery doctrine only when “the prosecution [can] show
that the lawful means which made discovery inevitable
were being actively pursued prior to the occurrence of the
illegal conduct.” United States v. Virden, 488 F.3d 1317, 1322
12 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
(11th Cir. 2007) (quotation omitted, emphasis in origi-
nal); see also United States v. Conner, 127 F.3d 663, 667 (8th
Cir. 1997). The rationale is that any other rule would
“eviscerate the exclusionary rule, because in most illegal
search situations the government could have obtained a
valid search warrant had they waited or obtained the
evidence through some lawful means had they taken
another course of action.” Virden, 488 F.3d at 1322-23.
We explicitly rejected this approach in United States v.
Tejada, 524 F.3d 809 (7th Cir. 2008). Tejada discussed
Virden and Conner and held that their rule would confer a
windfall on defendants because courts would have to
suppress evidence merely because police were not
seeking a warrant, even if a warrant would certainly
have been issued. Id. at 812-13; see also Marrocco, 578 F.3d at640 n.21. In this sense, Tejada took a “harmless error”
approach to inevitable discovery. The doctrine applies if
the government proves that “a warrant would certainly,
and not merely probably, have been issued had it been
applied for.” Tejada, 524 F.3d at 813; see also United States
v. Sims, 553 F.3d 580, 584 (7th Cir. 2009) (taking a nearly
identical approach in the context of the particularity
requirement for warrants).
The district court correctly held that the gun was ad-
missible under the inevitable discovery doctrine. The
officers had a statement from Daniels, who was being
arrested on drug charges, that an AK-47 assault rifle
was located in his home. Daniels’ statement constituted
probable cause to search the bedroom for the firearm.
Given his statement, it is reasonable to conclude that the
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 13
officers would have sought a warrant to search the bed-
room and, once they had, it is virtually certain that a
warrant would have been issued. Daniels argues that the
inevitable discovery doctrine cannot be based on an
illegally obtained statement. However, as discussed above,
Daniels’ statement was not illegally obtained, so this
argument fails. The officers inevitably would have dis-
covered the gun by lawful means; therefore, the gun
was admissible.
B. Statham’s Motion to Suppress
Statham contends that the district court erred in
denying his motion to suppress evidence (two guns and
approximately $21,000) found during a July 19, 2005,
search of his home. Following a suppression hearing, the
court found that Statham’s fiancée gave her voluntary
consent to the search of the house (the house was hers)
and that Statham gave his voluntary consent to the
search of the safe where the evidence was found and,
therefore, denied the motion.
The government responds that Statham’s plea agree-
ment did not reserve the right to appeal the suppression
ruling and, thus, he has waived any right to appeal this
issue. Indeed, Statham’s plea agreement expressly pro-
vides: “Defendant further understands he is waiving all
appellate issues that might have been available if he had
exercised his right to trial, and only may appeal the
validity of this plea of guilty.”
Statham replies that we should reach the merits
because they have been briefed, citing the dissent in United
14 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
States v. Schmidt, 47 F.3d 188, 192 (7th Cir. 1995) (Ripple, J.,
dissenting). However, in Schmidt the government did not
assert the appeal waiver but instead fully addressed the
merits. Id. Here, in contrast, from the outset, the govern-
ment has asserted Statham’s waiver of appellate rights;
it argued the merits only in the alternative. “It is well
established that an unconditional plea of guilty operates
as a waiver of all formal defects in the proceedings,
including any constitutional violations that occurred
before the plea was entered.” Gomez v. Berge, 434 F.3d 940,
942 (7th Cir. 2006). Statham’s guilty plea expressly waived
his right to appeal all issues other than the validity of his
plea, which he does not challenge on appeal. Statham’s
waiver encompassed the denial of his suppression mo-
tion. So we decline to review that ruling. (The court’s
findings that voluntary consent was given to search the
house and safe were not clearly erroneous, so reaching
the merits would not have provided Statham any relief.)
C. Are’s Brady and Napue Challenges
Are contends that the district court erred in denying his
motion for a new trial because the government failed to
correct a government witness’s testimony in violation of
Napue v. Illinois, 360 U.S. 264 (1959), and failed to disclose
exculpatory information to him in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The government responds
that it neither presented false testimony nor withheld
material exculpatory information. “The decision whether
to grant the parties a new trial is one committed to the
district court’s discretion, and our review of that decision
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 15
is deferential.” United States v. Jackson, 546 F.3d 801, 812
(7th Cir. 2008) (citation omitted), cert. denied, 129 S. Ct. 2010(2009).
Background
At trial, Are argued that he was involved with Murray
in connection with his music business and offered the
testimony of his wife, Tenielle, as support. Are maintains
that Tenielle’s credibility was critical to his defense.
On July 19, 2005, law enforcement conducted a search
of Are’s home and arrested him. At trial, CPD Officer
Colello (the team leader for the search of Are’s house)
testified that Are’s wife (Tenielle) was not pulled over
in her car after she left the Are home on the day of the
search—at least not that he knew of. In her testimony on
behalf of Are, however, Tenielle disputed that testimony
and explained the details of the stop and search of her
vehicle. In cross-examining Tenielle, the prosecutor
implied that she was skeptical of Tenielle’s testimony.
During a trial break following Tenielle’s testimony, the
government received some information that an officer
knowledgeable about “traps” (compartments concealed
in automobiles for the storage of drugs/cash) had been
called and searched Tenielle’s car. The government did not
disclose that information at that time, but proceeded with
final argument during which the prosecutor repeatedly
asserted that the police officer witnesses were credible.
The Assistant United States Attorney (“AUSA”) also
stated that “Officer Colello told you that he didn’t know
16 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
anything about the search of the car. He had left. He
was with Defendant Are. Maybe the car was searched.
I don’t know.”
Six days after the defendants were convicted, govern-
ment counsel interviewed CPD Sergeant Fred Waller,
who indicated that he had called for a search of Tenielle’s
vehicle and that a “trap” expert had been called for that
purpose. The day of Waller’s interview, the AUSA sent
defense counsel a letter, summarizing the discussion
with the agent on the trial break and the interview of
Waller. Are moved for a new trial, asserting Napue and
Brady violations.
1. The Failure to Correct a Government Witness’s
Testimony
Are argues that the government failed to correct Officer
Colello’s testimony that Tenielle’s car was not searched.
He also argues that the AUSA perpetuated Colello’s false
testimony in closing argument by stating “I don’t know” if
Tenielle’s car was searched. “[A] conviction obtained
through use of false evidence, known to be such by repre-
sentatives of the State, must fall under the Fourteenth
Amendment.” Napue, 360 U.S. at 269. “Napue stands for
the proposition that prosecutors may not suborn per-
jury.” United States v. Holt, 486 F.3d 997, 1003 (7th Cir.
2007). Napue extends to false testimony that goes to the
credibility of a witness. Napue, 360 U.S. at 269.
The parties dispute the correct standard by which we
determine whether testimony or withheld information
was material for purposes of Napue and Brady. Both
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 17
materiality standards are well-defined. In the Brady
context, “[e]vidence is material if there is a ‘reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.’ ” United States v. Palivos, 486 F.3d 250, 255 (7th
Cir. 2007) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). Under Napue, “when the prosecutor knowingly
relies on false testimony, the conviction must be set aside
‘if there is any reasonable likelihood that the false testi-
mony could have affected the judgment of the jury.’ ” Braun
v. Powell, 227 F.3d 908, 920 (7th Cir. 2000) (quoting United
States v. Agurs, 427 U.S. 97, 103 (1976)). In Mataya v.
Kingston, 371 F.3d 353 (7th Cir. 2004), we noted that “the
standard is the same” where the Napue violation “was not
distinct from the Brady violation in any realistic sense.” Id.
at 358-59. Are argues that the Napue standard applies,
whereas the government submits that the Brady standard
applies in cases like this where the alleged Napue viola-
tion grows out of the alleged Brady violation. We
need not resolve this dispute because even under the
standard more favorable to the defendant, Are has not
shown either a Napue or Brady violation.
The prosecutor did not knowingly rely on false testi-
mony from Officer Colello. Colello testified that he
was not “aware” and did not “know of” officers searching
Tenielle’s car. Neither the mid-trial information received
by the government nor the post-trial interview revealed
that Colello was present for that search or was otherwise
aware of it. The government had no reason to believe that
Colello was not telling the truth. Napue does not require
the government to recall Colello in its rebuttal case to
18 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
clear up any possible confusion when the witness’s testi-
mony was not perjurous. See Holt, 486 F.3d at 1003 (“Napue
stands for the proposition that prosecutors may not
suborn perjury, not that prosecutors must present
evidence exculpatory to a defendant in their case-in-
chief.”).
Nor did the government knowingly rely on false state-
ments in the AUSA’s closing arguments. The prosecutor’s
statements were far from material even under the Napue
standard. The government had conflicting stories. The
remark, “Maybe the car was searched. I don’t know,”
seems to reflect this uncertainty. Admittedly, the better
course for the AUSA would have been to avoid com-
menting on Tenielle’s testimony about the car search. But
any impropriety in doing so did not, “in light of the record
as a whole . . . deprive[ ] the defendant of a fair trial.”
United States v. Morris, 498 F.3d 634, 640 (7th Cir. 2007)
(quotation omitted), cert. denied, 128 S. Ct. 2502 (2008).
Are argues that Tenielle’s testimony about him being
involved in the music business was central to his defense.
He asserts that the jury would find Tenielle incredible
based on the difference between her testimony and
Colello’s. According to Are, this “[u]nfair blemish on
Tenielle’s veracity likely contaminated all aspect of her
testimony and the defense case in general.” But the
AUSA’s remark during closing only slightly disparaged
Tenielle’s testimony. And more importantly, the car
search was an entirely collateral matter and had nothing
to do with Tenielle’s testimony about Are’s music busi-
ness. Furthermore, the government’s case against Are was
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 19
substantial. There is no reasonable likelihood that
the prosecutor’s comment, “I don’t know,” could have
affected the jury’s judgment.
2. The Failure to Disclose Exculpatory Information
Are also argues that the government’s failure to
disclose what it learned mid-trial about the car search
violated Brady. “For a Brady violation to exist, entitling a
defendant to a new trial, he must establish (1) that the
prosecution suppressed evidence; (2) that the evidence
was favorable to the defendant; and (3) that it is material
to an issue at trial.” Palivos, 486 F.3d at 255. As the gov-
ernment responds, however, Are already knew that
Tenielle’s car was searched—she testified that it was—and
therefore this evidence was not “suppressed.” See United
States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002)
(“[E]vidence for Brady purposes is deemed ‘suppressed’
if (1) the prosecution failed to disclose the evidence
before it was too late for the defendant to make use of the
evidence, and (2) the evidence was not otherwise
available to the defendant through the exercise of rea-
sonable diligence.”). At a minimum, the evidence of the
car search was available to Are through the exercise of
due diligence. Tenielle, his wife, certainly knew of the
search, and the government didn’t prevent her from
telling Are about it. Yet, giving Are the benefit of the
doubt, perhaps he didn’t know about the other officers
who were involved in the search and who could have
testified that nothing was found. (We say “perhaps”
because Tenielle would have known of the other officers’
20 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
involvement, and it seems that a simple investigation
by Are would have uncovered this information.)
Nonetheless, there was no Brady violation because the
evidence was not material. As stated, the car search was a
collateral matter. The absence of drugs in Tenielle’s car
does not negate proof that Are was a drug dealer. Instead,
it just proves that drugs were not found in her car, and
that has no relevance to the case against Are. (The gov-
ernment’s evidence did not implicate either Tenielle or
her vehicle in the drug conspiracy.) Moreover, the
evidence would be largely cumulative of Tenielle’s testi-
mony that her car was searched but nothing was found.
Are asserts that he could have called the searching
officers as witnesses to rebut Colello’s testimony and
bolster Tenielle’s. But Colello testified that he wasn’t
“aware” of whether a car search occurred or not. So unless
another officer could testify that Colello was there, the
other officer could not contradict Colello. And, as dis-
cussed above, any attack on Tenielle’s credibility was
slight and invited by the defense’s questioning of Colello.
We perceive no reasonable probability that additional
evidence about the car search would have led to a dif-
ferent outcome for Are.
D. Are’s & Daniels’ Objections to the Admission of
Expert Testimony
Are and Daniels contend that the district court abused its
discretion in admitting expert testimony by police officer
Robert Coleman on the meaning of code words in
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 21
recorded conversations. The government had a wiretap
on Murray’s cell phone and captured over 20,000 calls.
Sixty-one of them were played at trial. Officer Coleman
opined that 50 grams of heroin was a distribution
amount and that coded language (25/50/100 dollars) was
used in the recorded conversations to refer to a trans-
action of a quantity (grams) of drugs.
Are and Daniels contend that the admission of this
testimony violated Federal Rule of Evidence 704(b), which
prohibits expert witnesses from opining (or stating an
inference) that the defendant did (or did not) have the
mental state constituting an element of the crime charged.
The focus of this argument is on the telephone counts,
which require proof that a defendant “knowingly and
intentionally” used a telephone to facilitate a drug of-
fense. But they also advance this argument with respect to
the other counts of conviction.
The government claims that Are and Daniels only
challenged Coleman’s testimony on the basis of relevance
and lack of personal knowledge and never objected
before or during trial to the use of expert testimony to
interpret “code words” on the ground that such testi-
mony would invade the province of the jury. Thus, it
argues, they have waived or at least forfeited the issue.
The defendants assert that they did object to Officer
Coleman’s testimony on the ground that it invaded the
province of the jury.
We generally review the district court’s admission of
expert testimony for an abuse of discretion. United States v.
Pansier, 576 F.3d 726, 738 (7th Cir. 2009). But if the defen-
22 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
dants forfeited this argument, we would review for
plain error. United States v. Canady, 578 F.3d 665, 669 (7th
Cir. 2009). And if they waived the issue, we could not
review it at all. Id.Rule 704(b) states:
No expert witness testifying with respect to the
mental state or condition of a defendant in a
criminal case may state an opinion or inference
as to whether the defendant did or did not have
the mental state or condition constituting an
element of the crime charged or of a defense
thereto. Such ultimate issues are matters for the
trier of fact alone.
Fed. R. Evid. 704(b). The trial transcript shows that
defense counsel objected based on “testifying as to the
ultimate issue in this case” and that Officer Coleman
would be “invading the province of the jury.” We can
conclude that the defendants did not waive the issue,
but whether this objection was sufficient to avoid
forfeiture is a more difficult call. Counsel did not specifi-
cally mention the words “mental state,” but use of the
words “ultimate issue” signifies a Rule 704(b) objection.
Still, it appears that the Rule 704(b) objection related to
the conduct that would be sufficient to prove “trafficking”
and not the phone charge. Defense counsel said: “It’s a
little different when you take a call that you introduced
in this case and testify that that specific call related to a
defendant. You’re basically saying this defendant is
guilty of trafficking, Judge. When you do that, that’s the
ultimate issue.” At no time during the sidebar about
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 23
Coleman’s expert testimony did defense counsel object on
the basis that Coleman’s testimony went to the ultimate
issue on the phone charge. Under a strict sense of “forfei-
ture,” the district court probably did not have an op-
portunity to consider whether Coleman’s testimony
invaded the jury’s decisionmaking as to “knowingly”
using a phone. The colloquy was mostly about Coleman
testifying to the ultimate issue, irrespective of the charge,
and the court seemed to overrule the objection on a
general basis, not on the basis of the specific charge. In
the end, however, we need not resolve whether the defen-
dants forfeited this issue, because under either standard
of review, we find no error here.
This circuit has routinely upheld the admission of expert
testimony from law enforcement purporting to translate
“code words” used by conspirators during intercepted
phone calls. E.g., United States v. Goodwin, 496 F.3d 636, 641-
42 (7th Cir. 2007). And we have held, generally, that
Rule 704(b) applies to the expert testimony of law en-
forcement officers. E.g., United States v. Morris, 576 F.3d
661, 674 (7th Cir. 2009). However, we have not analyzed
testimony about “code words” in terms of Rule 704(b).
Other circuits have confronted this issue and have
allowed law enforcement experts to translate code words
in the narcotics context. E.g., United States v. Dukagjini,
326 F.3d 45, 53 (2d Cir. 2003) (“[W]e conclude that the
district court did not err by allowing [the officer] to
testify that code words referred to specific drugs.”); United
States v. Watson, 260 F.3d 301, 308 (3d Cir. 2001) (same).
The appellants rely heavily on the Ninth Circuit’s
approach to Rule 704(b) issues in expert law enforcement
24 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
testimony. See United States v. Morales, 108 F.3d 1031, 1037
(9th Cir. 1997) (holding that Rule 704(b) prohibits “testi-
mony from which it necessarily follows, if the testimony is
credited, that the defendant did or did not possess the
requisite mens rea”) (emphasis added). But we have taken
a different approach.
In United States v. Lipscomb, 14 F.3d 1236 (7th Cir. 1994),
we observed:
Decisions applying Rule 704(b) to the expert
testimony of law enforcement officials have found
it significant whether the expert actually referred
to the intent of the defendant or, instead, simply
described in general terms the common practices
of those who clearly do possess the requisite
intent, leaving unstated the inference that the
defendant, having been caught engaging in more
or less the same practices, also possessed the
requisite intent.
Id. at 1239; see also Morris, 576 F.3d at 674. Then, reviewing
the text and legislative history of Rule 704, we concluded
that Rule 704(b) only prohibits expert testimony that
is based on an analysis of the defendant’s mental
processes, only a “slight” limitation on expert testimony.
Lipscomb, 14 F.3d at 1241-42. Still, we recognized the
dangers that “modus operandi” testimony carries. To
reconcile our view of Rule 704 with those concerns, we
concluded:
[W]hen a law enforcement official states an
opinion about the criminal nature of a defendant’s
activities, such testimony should not be excluded
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 25
under Rule 704(b) as long as it is made clear, either
by the court expressly or in the nature of the
examination, that the opinion is based on the
expert’s knowledge of common criminal practices,
and not on some special knowledge of the defen-
dant’s mental processes.
Id. at 1242 (citation omitted). We affirmed the district
court’s decision to allow the expert testimony because
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 Lipscomb’s mind.” Id. at 1243; see also
Morris, 576 F.3d at 675 (upholding admission of police
sergeant’s testimony about common practices of street-
level narcotics sales where he testified only as an expert,
never alluded to his impressions or recollections from
the search, never referred to defendant specifically, and
never expressed an opinion about defendant’s actual
state of mind).
The admission of Officer Coleman’s testimony about
“coded language” did not violate Rule 704(b). Coleman
testified based on his experience and training in wiretap
and drug trafficking investigations, which he outlined
extensively for the jury. He testified that he was familiar
with the language and words that “drug dealers” use. He
also stated that he had not interviewed any witness in
relation to the case on trial, had not reviewed any docu-
ments in connection with the case, other than some tran-
scripts, and had no knowledge of the facts of the case
or the allegations against the defendants. Ironically,
26 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
defense counsel objected to Officer Coleman testifying
as an expert on the basis that he had no knowledge
about the particular case other than the transcripts that
he had reviewed. Thus, it is apparent that Coleman
testified as an expert on the basis of his knowledge of
drug dealers’ use of coded language generally and not on
some special knowledge of the defendants’ mental pro-
cesses or mental states. In effect, Officer Coleman
testified about the coded language, or “druggish,” much
like another expert would translate a foreign language.
Had the recorded conversations been conducted in
Spanish instead of a drug code and had Officer Coleman
testified as to the English translation of the Spanish
words, we doubt the defendants would have objected, at
least not on the basis of testifying as to an ultimate issue
or invading the province of the jury. Moreover, Coleman
never testified about what the defendants “intended”
and he gave no opinion as to their mental states.
We acknowledge that this case is somewhat different
from ordinary drug cases because of the telephone
charges. Are and Daniels argue that, once the jury
credited Officer Coleman’s testimony, no inference was
necessary to find that they possessed the requisite
intent—one cannot utter drug code into a telephone
without knowingly using the phone to conduct drug
transactions. They cite United States v. Badger, 983 F.2d
1443, 1452 (7th Cir. 1993), which rejected a sufficiency of
the evidence challenge on a “phone charge” conviction
because the jury was free to conclude that the
defendants were not “playing games” but were talking
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 27
about drug deals. In Badger, the defendants acknowledged
that they were discussing drug deals on the telephone.
But here, Are and Daniels do not concede that they were
using coded language to discuss drug transactions over
the telephone, which makes this case quite different. If
the jury credited Officer Coleman’s expert testimony
about drug dealers’ use of coded language (which it
did), it does not necessarily follow that Are and Daniels
knowingly used a telephone to facilitate drug deals. This
is because the jury would still have to evaluate the
coded terms in the context of the entire conversation to
determine whether, as a whole, the conversation was
intended to further a drug transaction. Clarifying the
coded terms did not tell the jury that Are and Daniels
possessed the requisite mental state. Perhaps they were
just “playing games” instead of discussing real drug
transactions. Significantly, Officer Coleman never
opined as to Are’s or Daniels’ intent or knowledge.
As the government argued, Officer Coleman’s testimony
must be viewed in the context of the charges and jury
instructions. The indictment charged the telephone
counts in relevant part as follows:
[Are or Daniels] . . . knowingly and intentionally
used and caused to be used a communication
facility, namely, a telephone, in committing and in
causing and facilitating the commission of a felony
in violation of Title 21, United States Code, Section
846, namely, conspiring to distribute and possess
with intent to distribute controlled substances,
as charged in Count One of this Indictment[.]
28 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
(emphasis added). The district court instructed the jury
that to convict Are and Daniels of the telephone counts,
the government had to prove beyond a reasonable doubt
that:
First, the particular defendant you are considering
used a telephone; second, that the use of the tele-
phone was accomplished as part of the committing
of or to cause or facilitate the committing of con-
spiracy to possess with intent to distribute and to
distribute a controlled substance, as charged in
Count 1 of the indictment; and, third, that such use
of a telephone was knowing or intentional.
(emphasis added). The court also instructed the jury that
they should judge the opinions of witnesses about
matters requiring special knowledge or skill “in the same
way you judge the testimony of any other witness” and
“[t]he fact that such a person has given an opinion
does not mean that you are required to accept it.” The jury
was told that such testimony should be given as much
weight as they thought it deserved. Thus, the jury was
appropriately instructed on how to evaluate Officer
Coleman’s expert testimony about the coded language.
Moreover, proof that a defendant knowingly used a
telephone to facilitate a drug deal was not sufficient to
sustain a conviction under the telephone counts. Instead,
the government had to prove that the defendant’s use of
the telephone was part of the commission of, or causing or
facilitating the commission of, the specific conspiracy
alleged in Count One. See United States v. Briscoe, 896 F.2d
1476, 1510 n.28 (7th Cir. 1990) (noting that where the
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 29
indictment alleged that the telephone calls facilitated the
substantive offenses and the conspiracy to commit
those offenses, it was sufficient to prove that the calls
facilitated either the substantive offenses or the conspir-
acy). And the government also had to prove that in using
the telephone, the defendant knowingly or intentionally
committed, or caused or facilitated the commission of the
conspiracy charged in Count One. See United States v.
Rodgers, 755 F.2d 533, 542-43 (7th Cir. 1985). Officer
Coleman did not testify that Are or Daniels did, or
did not, knowingly or intentionally use the telephone to
commit or cause or facilitate the commission of the drug
conspiracy alleged in Count One. If the indictment
had not charged the conspiracy as a separate count but
alleged that the defendants used a telephone to facilitate
a drug conspiracy, the government still would have had
to prove that the defendants knowingly or intentionally
used a phone to facilitate the conspiracy. It would not
be enough merely to prove that they used a phone to
facilitate a drug deal. Though Coleman’s testimony is
strong circumstantial evidence of the mens rea required
for the telephone charges, even more so than for the drug
charges, its admission did not violate Rule 704(b).
E. Sentencing Issues
Each appellant except Daniels raises sentencing chal-
lenges. We review the district court’s legal interpretation
of the Guidelines de novo, United States v. Abbas, 560
F.3d 660, 662 (7th Cir. 2009), and review its findings
regarding a defendant’s role in the offense and drug
30 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
quantity for clear error, United States v. Fox, 548 F.3d 523,
528 (7th Cir. 2008). The district court’s factual findings
at sentencing must be based on a preponderance of the
evidence. See United States v. Goodwin, 496 F.3d 636, 643 (7th
Cir. 2007). And “we will affirm the district court unless,
after considering all of the evidence, we are left with a
definite and firm conviction that a mistake has been
committed.” United States v. Rollins, 544 F.3d 820, 838
(7th Cir. 2008) (quotation omitted).
1. Are
We begin with Are, who challenges the district court’s
finding that he was responsible for more than 100 grams
(but less than 400 grams) of heroin and that he was a
manager or supervisor. These findings resulted in a
base offense level of 26, see U.S.S.G. § 2D1.1(a)(3), (c)(7)
(2006), and a three-level enhancement under U.S.S.G.
§ 3B1.1(b).
Background
Between December 13 and 23, 2004, Jerome “Head”
Murray had phone conversations with Are and a Murray
Brown (to avoid confusion in this section, Jerome Murray
will be referred to by his nickname “Head” and Murray
Brown will be referred to as “Brown”). These conversations
were recorded and culminated in a meeting between
Are and Head on the 23rd. On the 13th, Head was
talking to Brown and referred to “my guy” “that’s in
Nigeria” (Are is Nigerian) and said that he (Head) had to
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 31
“come up with $10” and that “he [presumably Are] already
came up with his money.” Brown asked Head, “So he
gonna have the whole security thing down pat then, huh?”
Head responded, “Oh no he don’t, you know . . . we
got, uhm, start off, uhm, half of uhm, tryin’ to, . . . you
know got everything right, right, you know.” Brown
asked Head, “When is this gonna start?” Head answered,
“as soon as I . . . come up with, uh, uhm . . .” at which
point Brown interjected, “The 10.” Head replied, “Yeah,
yeah. So I only need but 3 more now.”
In the next week, Head and Are engaged in several
recorded conversations. Head advised Are that he (Head)
was “waiting on his man” who “just sold his Vette” and
would give Head a “30 piece,” and then said that his
man “was gonna give me 5” “and I got 5.” Head later
told Are that he “might just gonna have to go to the bank
to get, uh, five more dollars out” and that he was “waitin’
on this [person] to get me, . . . five, that owe me.” Head
said that “somebody was tryin’ to hit me . . . at my bank”
and he thought he “might have to change my bank thang.”
Head explained it was “the TCF shit . . . but they straight-
ened it out. That’s why I had to wait. . . . I don’t need but
four more dollars now.” Head again told Are that “I got to
get some, I got to get some money. See once I get down
there, I’m straight.” Head referred to “a little, uh, project
we got goin’ ” and said that “I need like two more dollars
and I’m cool . . . I’m talkin’ about 200 to go to this thing.”
Head went to Atlanta between December 19 and 22.
On December 23, Head and Are arranged to meet. Law
enforcement officers observed Head leave an apartment,
32 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
meet for less than a minute in Are’s Mazda, and then
return to the apartment. The officers followed
Are, who engaged in counter-surveillance, including
speeding, several U-turns, as well as pulling into a strip
mall, waiting, and then driving away in the opposite
direction. Are successfully eluded an effort by the
police to stop him. About a month later, the Daniels-Are
49.6-gram transaction took place. In his plea agreement,
Head admitted that on January 26, 2005, he supplied
Daniels with 50 grams of heroin.
The Presentence Investigation Report (“PSR”) and the
district court concluded that the December 23rd meeting
between Head and Are was related to a drug deal
between them involving 125 grams of heroin. This was
based on the December conversations, which were inter-
preted as referring to a $20,000 deal—the equivalent of 125
grams of heroin. At sentencing, Are argued that the
conversations about money referred to his and Head’s
business relationship in connection with Are’s recording
studio. The district court rejected that assertion and
concluded that the conversations referred to a drug deal.
The court based this finding on the wiretap con-
versations in the case, the way Are interacted with
Head and others, the use of coded language, the officers’
subsequent observations of Are’s and Head’s meeting,
including Are’s concerted efforts to elude the police after
the meeting had occurred, and the familiarity between
Head and Are, which the court found indicated that they
had been doing such deals for a long time. Responsibility
for at least 100 grams but less than 400 grams of heroin
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 33
resulted in a base offense level of 26, see U.S.S.G.
§ 2D1.1(a)(3), (c)(7) (2006).
With respect to the leadership enhancement in § 3B1.1(b),
the court relied on a January 2005 recorded conver-
sation related to the January 26 deal in which Are
directed Head to call Rocco. The court relied further on
what appeared to be a lecture that Are gave Rocco and
another individual at the McDonald’s on the night of the
heroin seizure about “how they screwed up and how
they better do things in the future to keep from getting
caught.” Are was also overheard lecturing Rocco and the
other individual on the use of evasive driving tactics to
determine if they were being followed and frequently
changing meeting locations. The district court inferred
that a person who would lecture other participants in a
drug conspiracy on how they were supposed to conduct
their business could only be someone in a managerial
position. The court reasoned that such a person super-
vised the others’ activities—instructing them not only
on what they should do, but how they should go about
doing it. Therefore, the court determined that Are was a
manager or supervisor of the criminal activity (no one
disputed that the conspiracy involved five or more
people), and applied the three-level enhancement under
§ 3B1.1(b).
a. Drug Quantity
For purposes of sentencing, because Are was
convicted of the criminal drug conspiracy charged in
34 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
Count One, he is responsible not just for his own acts but
also for the acts of his coconspirators “that were both
made in furtherance of the conspiracy and [reasonably]
foreseeable to [him].” United States v. Dean, 574 F.3d 836,
844-45 (7th Cir. 2009) (citation omitted); see also United
States v. Goodwin, 496 F.3d 636, 642 (7th Cir. 2007). An
application note to § 2D1.1 provides:
Where there is no drug seizure or the amount
seized does not reflect the scale of the offense, the
court shall approximate the quantity of the con-
trolled substance. In making this determination,
the court may consider, for example, the price
generally obtained for the controlled substance, . . .
[and] similar transactions in controlled sub-
stances by the defendant . . . .
U.S.S.G. § 2D1.1 cmt. n.12; see United States v. Bautista, 532
F.3d 667, 672 (7th Cir.), cert. denied, 129 S. Ct. 773 (2008).
The record supports the finding that Are was involved
in drug deals in December 2004 and on January 26, 2005.
We do not believe that the district court erred in
finding that the December coded conversations were
about a drug transaction. In addition to those recorded
calls, the evidence established that Are was Jerome
Murray’s heroin supplier and there was a January 2005
heroin transaction involving Are and Murray. Also,
Murray’s quick meeting with Are on December 23, typical
of a drug transaction, and Are’s subsequent evasive
driving both suggest that the conversations were about
drug dealing, and involved a transaction on December 23.
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 35
Nor do we believe that the district court clearly erred
in finding the quantity of heroin from the dollar amounts
discussed or in finding the value to be $20,000. Because
no drugs were actually seized from the December 2004
transaction, the district court properly extrapolated the
drug quantity from the alleged price of $20,000. See
U.S.S.G. § 2D1.1 cmt. n.12. The court could reasonably
infer that when Murray talked about coming up with
“half” of the purchase price, which he described as “10” or
“$10,” that he was referring to $10,000. And this rea-
sonably suggested that the total purchase price was
$20,000, which was the cost of 125 kilograms of heroin.
Such an inference may at first seem inconsistent with
Officer Coleman’s testimony about the meaning of the
coded language (dollar amounts meant grams of heroin).
But a closer look reveals that it is not. Tellingly, although
Are argued that the December 2004 telephone calls
were about his recording business rather than drugs, he
did not dispute that in those conversations the
numbers referred to money.
In addition, the context of the telephone calls rea-
sonably suggests that the numbers and dollar amounts
were references to money (in terms of thousands of
dollars). Jerome Murray talked about needing to “come up
with the $10” to execute a transaction with the “guy
in Nigeria.” This transaction seems to have been in
the works for some time—the initial conversation
occurred ten days before Are’s and Murray’s December
23rd meeting—which was atypical for the conspiracy. In
one call, Murray said he only needs “3 more now.” The
evidence established that Murray was the kingpin of the
36 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
drug operation, so it would be unlikely that he would be
struggling to come up with three, or even ten, grams of
heroin. In other calls, the January 25 call for example, he
talked about obtaining 25, 50, and even 100 grams
without expressing any uncertainty about his ability to
quickly consummate such a deal. Added to that are
Murray’s statements that his friend was selling his Vette,
that he (Murray) had to go to the bank, and that he was
having trouble with the bank and his TCF account. These
statements suggest that Murray was referring to money
rather than a drug quantity. And as noted, the evidence
established that Murray purchased heroin from Are
and did so on other occasions. This also supports the
inference that Murray was trying to come up with
money for a $20,000 heroin transaction with Are.
The evidence wasn’t overwhelming and the district
court’s explanation was not elaborate. But we are not left
with a definite and firm conviction that the court made
a mistake in first finding that the December 2004 drug
transaction had a value of $20,000 and then finding
that this dollar amount was for 125 grams of heroin. There
was enough evidence allowing reasonable inferences
to constitute a preponderance supporting that amount.
b. Section 3B1.1 Enhancement for Aggravating Role
Moving on to the enhancement for Are’s role in the
offense, U.S.S.G. § 3B1.1(b) provides: “If the defendant was
a manager or supervisor (but not an organizer or leader)
and the criminal activity involved five or more
participants or was otherwise extensive, increase by
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 37
3 levels.” In determining whether a defendant was a
manager or supervisor, the court should consider such
factors as
the exercise of decision making authority, 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 participation 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; see also United States v. Longstreet,
567 F.3d 911, 925-26 (7th Cir. 2009), cert. denied, ___ S. Ct.
___, 78 U.S.L.W. 3294 (U.S. Nov. 16, 2009) (No. 09-7065).
Are contends that Jerome Murray, not he, was Rocco’s
boss. Are points out that, when a drug deal went bad,
Rocco called Murray, not Are. According to Are, he was a
mere middle man with no managerial function in the
enterprise. (Are does not contest the finding that the
criminal activity involved five or more participants, only
whether he played a supervisory or managerial role.)
However, the record easily supports the district court’s
finding that Are was a manager or supervisor in the
criminal activity that involved five or more participants.
First of all, as the Application Note to § 3B1.1 indicates,
“[t]here can, of course, be more than one person who
qualifies as a leader or organizer of a criminal association
or conspiracy.” U.S.S.G. § 3B1.1 cmt. n.4; see United States v.
Millet, 510 F.3d 668, 679 n.1 (7th Cir. 2007). This logic
extends to a manager or supervisor position as well. Are
38 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
advances nothing to suggest any reason why both he
and Murray could not have been managers or
supervisors, if not organizers or leaders, in the drug
conspiracy, particularly as such a role relates to Rocco.
Furthermore, Are’s lecturing of Rocco at the McDonald’s
is significant. Officer Kimble testified that he heard Are
lecturing Rocco about how to avoid law enforcement.
Though Are argues on appeal that Kimble only heard “bits
and pieces” of the conversation, and that Are was only
“boasting about past conduct,” the district court quite
reasonably understood Kimble’s testimony as the gov-
ernment construes it—that Are was disciplining Rocco
and the other unidentified individual for a failed transac-
tion. The court found Kimble’s testimony to be “dramatic
and convincing,” an aspect of credibility to which we
should defer to the district court’s assessment. The
district judge reasonably inferred that a person who
would lecture other participants in a drug conspiracy on
how to conduct their business could only be someone in
a managerial position. The court also reasoned that such
a person supervised the others’ activities by directing
them on what to do and how to do it. Audacity may not
be a proxy for a § 3B1.1 enhancement, but Are’s lecturing
of Rocco and the other male on “how they screwed up
and how they better do things in the future to keep
from getting caught” supports the district court’s finding.
In addition, there was evidence that Are directed Murray
to call Rocco in relation to the January 26 deal, and that
after the seizure, Murray and Rocco discussed the need
to call Are, at which point Murray reassured Rocco there
“ain’t nothin’ to, uh, panic about,” which also supports
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 39
the district court’s finding that Are was a manager or
supervisor of the criminal activity involving five or
more participants.
2. Jerome Murray
Jerome Murray contends that the district court com-
mitted two errors in applying Guideline enhancements.
He complains that the court erred in applying a four-
level enhancement for being a leader of the drug conspir-
acy under U.S.S.G. § 3B1.1(a). He next argues, in the
alternative, that the district court erred in relying on
evidence introduced at his codefendants’ trial without
giving him proper notice in violation of Fed. R. Crim. P.
32(i)(1)(C) and in failing to make sufficient factual
findings to support the enhancement.
Background
FBI Special Agent Jeffrey A. Cooper’s affidavit was
submitted in support of the criminal complaint originally
filed to initiate the charges in this case. The affidavit stated
that the Four Corner Hustlers gang was located on Chi-
cago’s south and west sides and in some southern and
western suburbs and was historically linked to large-
scale drug distribution in the Chicago area. The affidavit
said that Jerome Murray was recognized as the “Chief” of
the Four Corner Hustlers on the south side. Cooper’s
affidavit also referred to information obtained from
various sources including four “cooperating wit-
nesses” (CW1, CW2, CW3, and CW4, each of whom was
40 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
cooperating to obtain some form of benefit), coconspirator
and Hustler gang member Clarence Whalum, and the
wiretap of Murray’s cell phone. (Law enforcement ob-
tained a wiretap on Murray’s cell phone on December 13,
2004, which continued for sixty days.)
CW1, an active and high-ranking Hustler gang member
and drug dealer until 1999, when he was taken into
custody, stated that Murray was responsible for the
distribution of between 50 and 100 kilograms of cocaine
per week. CW1 said that he maintained contact with
Murray even while Murray was incarcerated (prior to
2001). According to CW1, a Nigerian, referred to as
“Dummy” (believed to be Are), supplied heroin to the
Hustlers.
CW2, then a current Hustler, was attributed in the
affidavit with identifying a photograph of Murray as
an individual known to him as “Head” and supplying
information about a close relationship he had with an
“Individual A” who told CW2 about Murray’s drug
trafficking. CW2 said that he was present for certain drug
trafficking activities. In the summer of 2003, CW2
observed Murray and Individual A with a duffel bag
containing fifty kilograms of cocaine. CW2 reported that
Individual A told him that Murray’s girlfriend (now wife),
Catherine Fauntleroy, regularly held drugs for Murray.
CW2 also observed Murray selling heroin to Daniels on
two occasions. CW2 indicated that Daniels controlled a
drug trafficking operation in Chicago.
CW3, a former member of the Hustler rival Black Disci-
ples gang and drug distributor on the south side of Chi-
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 41
cago, expressed familiarity with the Hustlers and with
the fact that Murray is their leader. CW3 identified a
picture of Murray as an individual known to him as
“Head.” CW4, a member of the Hustlers from 1979
until his arrest in 1996, indicated that Murray “called the
shots” for the Hustlers, controlled the Hustlers’ drug
trafficking, and that Hustlers are either supplied drugs
by Murray or pay a “tax” (a portion of their profits) to
Murray. According to CW4, a Nigerian known as
“Dommy” (again, believed to be Are) distributed
heroin and was close with Murray.
Cooper’s affidavit indicated that Hustler gang member
Clarence Whalum also had said that Murray “called the
shots” for the Hustlers. Whalum stated that after several
Hustlers were arrested, Murray told the others to be
careful, which Whalum understood to mean to be
careful about how they were running their drug opera-
tions. Whalum identified Daniels, known to Whalum
as “Sko,” as a Hustler who sold crack.
The affidavit indicated that CW1 previously had pro-
vided reliable information to law enforcement and was
cooperating with the hope of receiving a reduction in the
sentence he was currently serving. CW2 was cooperating
in exchange for payment. CW3 was cooperating in
hopes of receiving consideration on his sentence in a
pending narcotics case. Like CW1, CW4 was cooperating
in hopes of receiving a reduction in the sentence he
already was serving. The affidavit asserted that the infor-
mation from the cooperating individuals was reliable
because it was corroborated by other information
42 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
obtained in the investigation, including other cooperating
witness information, surveillance, intercepted conversa-
tions, drug seizures and controlled purchases of drugs.
(The district court denied a pretrial request by Murray
to disclose the identities of the cooperating individuals.)
The affidavit also listed information obtained from the
wiretaps, including that Murray bought a kilogram of
cocaine from Julius Statham (which was then seized),
that Murray brokered a heroin deal between Are and
Daniels, that Kenard McCollum supplied heroin and
cocaine to Murray, that Murray fronted cocaine to Steve
Jordan and Lamont Hooks, that Fauntleroy purchased
drugs with Murray and advised him on the drug business
(e.g., keep multiple suppliers, break large quantities to
smaller ones, and recruit others to do the buying and
selling for him), and that Murray fronted coke and
heroin to Bertell McKenzie who then redistributed it.
In his plea agreement, Murray admitted to buying a
wholesale quantity of heroin from Are and wholesale
quantities of cocaine from Statham. Murray also
admitted to obtaining from Ramon Ceballos wholesale
quantities of cocaine and heroin, as well as quantities of
marijuana. Murray admitted to redistributing the cocaine
and heroin to wholesale customers, including Hooks
and Daniels, and to brokering deals for wholesale quanti-
ties of heroin or cocaine between customers and suppliers.
The government asserted in the plea agreement that
Murray should receive a four-level enhancement under
U.S.S.G. § 3B1.1(a) for being an organizer or a leader of a
drug organization involving five or more people, whereas
Murray contended that he was a manager or supervisor
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 43
and, therefore, should receive only a three-level enhance-
ment under § 3B1.1(b).
The PSR discussed the Hustlers’ drug operations,
concluding that Murray was its leader. As support, the
PSR relied on the information in the complaint and state-
ments by Agent Cooper, including that Murray was
commonly viewed as the Hustlers’ “Chief,” that all deci-
sions went through Murray, that Murray was responsible
for directing other gang members in various aspects of the
drug activities, including where they could sell and from
whom they could buy, and that close to 100 Hustlers
worked for Murray in some capacity. The PSR also
noted that Fauntleroy (by then Murray’s wife) assisted
Murray with the drug trafficking organization. At sen-
tencing, Murray argued that he acted as a broker, not
a leader or organizer.
The district court agreed with the PSR’s assessment of
Murray’s role in the offense, explaining:
I’m frankly inclined to agree with the calculation
in the presentence investigation report. I think it’s
right. It’s conservative. I think everything that
goes into that calculation is supported.
[F]rom all the testimony that I heard, the differ-
ent tape recorded conversations, the information
in the presentence investigation report, the state-
ments of the other co-defendants in this case, it’s
clear to me that the defendant was a leader.
And I take into account only in part the fact that
he is known as a chief of the Four Corner Hustlers
street gang, only to this extent: It’s indirect, cir-
44 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
cumstantial evidence of what his role was in this
case. But there’s plenty of other evidence and
information in the way of the testimony that was
given during the trial and the statements of the
other co-defendants and the structure of the trans-
actions to indicate that he was, in fact, a leader in
this particular drug conspiracy, insofar as you can
differentiate this from the other activities of the
Four Corner Hustlers street gang.
a. Section 3B1.1 Enhancement for Aggravating Role
The Guidelines authorize a four-level enhancement in
offense level “[i]f the defendant was an organizer or leader
of a criminal activity that involved five or more partici-
pants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In
determining whether the four-level enhancement
applies, the court should consider the same factors that
are relevant to determining whether a defendant is a
manager or supervisor. Id. cmt. n.4; Longstreet, 567 F.3d
at 925-26. (See supra for our discussion of Are’s challenge
to his aggravating role enhancement.)
An organizer or leader is more than just a distributor.
United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994).
An organizer or leader must “influence the criminal
activity by coordinating its members.” United States v.
Skoczen, 405 F.3d 537, 550 (7th Cir. 2005) (quotation omit-
ted). “In distinguishing a leadership and organizational
role from one of mere management or supervision, titles
such as ‘kingpin’ or ‘boss’ are not controlling.” U.S.S.G.
§ 3B1.1 cmt. n.4. In sum, “we emphasize both relative
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 45
responsibility and control over other participants, and
recognize that middleman status is not necessarily incon-
sistent with being a manager or supervisor.” United
States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008).
In determining whether a defendant is an organizer or
leader, the district court need not rely solely on admissible
evidence. U.S.S.G. § 6A1.3(a). Instead, the court may
consider any relevant information, as long as it “has
sufficient indicia of reliability to support its probable
accuracy.” Id. This standard comports with due process.
United States v. Acosta, 534 F.3d 574, 582 (7th Cir.), cert.
denied, 129 S. Ct. 612 (2008). The court also may rely on
hearsay. United States v. Sanchez, 507 F.3d 532, 538 (7th
Cir. 2007) (“[A] sentencing court clearly errs by con-
sidering hearsay evidence only if the evidence was
devoid of any indicia of reliability.”). The government can
establish the reliability of hearsay with corroborating
evidence. United States v. Martinez, 289 F.3d 1023, 1029
(7th Cir. 2002).
On appeal, Murray argues that he was merely a middle-
man, not a leader or organizer, simply facilitating deals
between Are and Daniels. (This argument doesn’t square
very well with Murray’s position in his plea agreement
that he was a manager or supervisor.) In addition,
Murray attacks each source of evidence upon which the
district court relied: trial testimony, statements by
codefendants, recorded conversations, the PSR’s findings,
cooperating witnesses, Clarence Whalum, and Officer
Cooper’s affidavit. Murray also argues that he was not
afforded an opportunity to rebut the cooperating wit-
46 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
nesses’ information because he did not know their identi-
ties. Thus, we must decide whether the district court’s
finding that Murray was an organizer or leader of the
drug conspiracy was based on sufficiently reliable evi-
dence.
The following evidence was sufficiently reliable and
supports that finding:
(1) Murray admitted in his plea agreement to buying
wholesale quantities of cocaine and heroin and re-
distributing those drugs to wholesale customers,
including Hooks and Daniels.
(2) CW1 stated that Murray was responsible for the
distribution of between 50 and 100 kilograms of
cocaine weekly. CW3 said that Murray was the leader
of the Four Corner Hustlers street gang. CW4 said that
Murray “called the shots” for the south side Hustlers
and controlled their drug trafficking. This evidence of
Murray’s leadership role was corroborated by
Whalum, who said that Murray “called the shots” for
the Hustlers on the south side of Chicago, and by
Agent Cooper’s affidavit, based in part on his investi-
gation, including the wiretaps, surveillance, con-
trolled buys and seizures. As in United States v.
Hankton, 432 F.3d 779 (7th Cir. 2005), it appears that
Murray’s involvement in the Hustlers gang was
inextricable from his participation in the drug traf-
ficking. Id. at 794 (“[A]ll of the evidence presented—as
well as commonsense—suggest that, in fact, Hankton’s
gang activities were intimately, related to and inter-
twined with, his drug distribution activities.”).
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 47
(3) A December 28, 2004, recorded telephone conversation
between Murray and Daniels in which Murray told
Daniels to tell the “shorties” and “guys” to be “cool . . .
and careful.” These comments match up with
what Whalum said about Murray instructing his
people to be “careful” after several Hustlers had been
arrested. Murray contends that the government takes
this remark out of context and that the conversation
reveals that he did not know what Daniels was up to
or where he was. Still, Murray’s words were an order
to Daniels, and Whalum’s statement is corroborating.
(4) Agent Kimble observed Are giving instructions on
evasion to Rocco and another individual at a McDon-
ald’s after the January 26, 2005 seizure of heroin from
Daniels. Kimble testified that Murray was disinter-
ested, walked away, and seemed to carry on other
business. This gives the impression that Murray was
not controlled by Are, yet the others there were, and
that Murray held a position of authority in the organi-
zation that was at least on the same level as Are’s.
(5) Murray was the “conduit of information” for all
participants. He was party to most, if not all, of the 61
phone calls played at trial, and he used those calls to
coordinate the distribution of heroin from Statham
through Rocco and Are to Daniels. See Millet, 510 F.3d
at 679 (finding district court did not clearly err in
determining that defendant was a leader in the drug
conspiracy where, inter alia, he was a conduit of
information).
(6) CW2 related information he learned from another
individual that Fauntleroy was storing narcotics for
48 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
Murray on a regular basis. This was corroborated by
Fauntleroy’s plea agreement, in which she admitted to
receiving and storing drugs, including heroin and
multiple kilograms of cocaine, for Murray. At Murray’s
sentencing hearing, the AUSA argued that Murray
supervised Fauntleroy, based on her plea admissions
to having stored large amounts of cocaine for Murray.
In addition, Murray even admits in his appellate brief
that “both Daniels and Murray had distributors that
worked for them.” This also supports a finding that
Murray played a leadership role in the offense.
In challenging the evidence, Murray disparages the
information provided by the CWs, arguing that it was
unreliable because it was uncorroborated. While some of
the CWs’ information was not corroborated, for example,
CW4’s statement that Murray charges his people a “tax,”
many of the CWs’ statements were corroborated by
other reliable evidence. Murray next attacks the CWs’
statements by arguing that they should have been
excluded because the district court did not afford him an
opportunity to rebut them. Murray claims he was not
afforded that opportunity because the government did not
disclose the CWs’ identities. But he cites no case, and we
are unaware of any, which requires a court to reveal a
cooperating witness’s identity before relying at sen-
tencing on information provided by the witness. And we
have observed that “confidential informants are not
categorically unreliable.” United States v. Wilson, 502 F.3d
718, 722 (7th Cir. 2007). In any event, the district court
found the CWs sufficiently reliable, not because they
corroborated each other, but because “Whalum, phone
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 49
taps, surveillance, and seizures” corroborated their in-
formation.
But even if the court erred in relying on the CWs’
statements, such an error was harmless given the other
substantial evidence establishing that Murray was an
organizer or leader in the criminal drug conspiracy. See
United States v. Kincannon, 567 F.3d 893, 899-900 (7th Cir.
2009) (“[N]ot all errors require remand since they are
subject to harmless error analysis.”). Murray also com-
plains that Agent Cooper’s assertions were based on the
CWs’ information and, as a result, were also uncorrobo-
rated and unreliable. He is incorrect. Other information,
from Whalum, the wiretap evidence, and Agent Kimble’s
observations at the McDonald’s, corroborated the
agent’s statements. The district court did not clearly err
in applying the four-level enhancement under § 3B1.1(a).
b. Evidence from Codefendants’ Trial
Murray contends, in the alternative, that his case should
be remanded for a new sentencing hearing because the
district court relied on evidence introduced at the trial of
his codefendants as well as other codefendant statements
without giving him proper notice. Murray claims that
the PSR did not provide him with any notice that the
court would consider evidence introduced at his
codefendants’ trial. As he concedes, because he did not
object in the district court, we review for plain error.
Thus, Murray must show “(1) an error has occurred, (2)
it was ‘plain,’ (3) it affected a substantial right of the
defendant, and (4) it seriously affected the fairness, integ-
rity, or public reputation of the judicial proceedings.”
50 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
United States v. Nitch, 477 F.3d 933, 935 (7th Cir. 2007)
(quotation omitted).
Federal Rule of Criminal Procedure 32(i)(1)(C) requires
a sentencing court to “allow the parties’ attorneys to
comment on the probation officer’s determinations and
other matters relating to an appropriate sentence.” This
rule gives the defendant “a right to know what evidence
will be used against him at the sentencing hearing.” United
States v. Morales, 994 F.2d 386, 389 (7th Cir. 1993). This
includes evidence from a codefendant’s trial, especially
if the defendant was not a party in that case and could
not challenge the reliability of the evidence. Id. If a sen-
tencing judge is going to consider evidence from a
codefendant’s trial, then he should warn the defendant
and give him a chance to review the trial transcript. Id.In the plain error context, however, the defendant must
show “a high degree of prejudice . . . as well as a high
degree of certainty that it really was an error.” Id. at 390. In
Morales, we affirmed despite the district court’s failure
to notify the defendant of its reliance on other trial evi-
dence. We noted that the defendant could not argue
that the undisclosed information was “inaccurate or
otherwise inappropriate for consideration in the sen-
tencing hearing.” Id. And the defendant’s counsel acknowl-
edged that she hadn’t even read the transcript. Id. Ac-
cordingly, we found no plain error. See also United States
v. Anaya, 32 F.3d 308, 314 (7th Cir. 1994) (finding no
plain error because the defendant “did not demonstrate
that the information derived from [a codefendant’s]
sentencing hearing was unreliable,” failed to establish
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 51
the extent to which the court relied on it, and other infor-
mation supported aggravating role enhancement).
The district court did not give Murray prior notice of its
intent to use evidence from his codefendants’ trial in
determining whether to apply the leadership role en-
hancement. Under most cases in our circuit, this would be
error. However, in Acosta, 534 F.3d at 582, we observed
that any defendant is “on notice” about the potential use
of evidence from a codefendant’s trial, because “under
the sentencing guidelines, he would be held responsible
for the relevant conduct of his coconspirators if rea-
sonably foreseeable to him.” Murray argues that Acosta
is an outlier upon which we should not rely and that it
was not circulated under Rule 40(e), thus having little
precedential authority in this circuit. We have not cited
Acosta again for this proposition. Yet, we need not decide
whether Acosta should be followed because, even
assuming error, Murray has not shown that it was plain
error.
Murray would have us take a strict view of what con-
stitutes reversible error in the failure-to-give-notice
context. He cites United States v. Jackson, 32 F.3d 1101, 1110
(7th Cir. 1994), in which a split panel concluded that the
failure to notify the defendant that the court was
intending to impose a certain sentencing guidelines
enhancement was not harmless error. Applied to this
case, Murray would have Jackson stand for the proposition
that, if the court relied on the undisclosed evidence
from Murray’s codefendants’ trial but would have
reached a different result had he not relied on that evi-
52 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
dence, then we should reverse. Jackson is distinguishable,
however, and Morales and Anaya are more on point. The
sentencing court in Jackson failed to give the defendant
notice that he would apply a particular Guideline en-
hancement, depriving him of any reasonable opportunity
to challenge the enhancement both legally and factually.
When the court relied on that enhancement in imposing
the sentence, the defendant was clearly prejudiced and
any error could not have been harmless.
Here, in contrast, Murray was aware of the leadership
role enhancement; the PSR clearly identified it. Thus, the
district court failed only to give Murray notice of one of
the types of evidence that it would consider when deter-
mining whether the enhancement should apply. This
deprived Murray of the opportunity to challenge that
evidence’s reliability and accuracy; it did not affect
Murray’s ability to challenge the Guideline’s applica-
tion. If Murray had a good faith argument that the evi-
dence was unreliable, then the court’s reliance on this
evidence might be prejudicial. But on appeal, Murray
does not question the reliability or accuracy of that evi-
dence. He instead disagrees with the court’s take on the
undisclosed evidence, arguing that it merely showed that
he was a middleman distributor, not an organizer or
leader. The court’s reliance on undisclosed evidence
does not make the non-disclosure prejudicial. See Anaya,
32 F.3d at 314 (affirming in part because the defendant
“did not demonstrate that the information derived from
[codefendant’s] sentencing hearing was unreliable”);
Morales, 994 F.2d at 390 (affirming because the defendant
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 53
could not show that the evidence was “inaccurate or
otherwise inappropriate for consideration in the sen-
tencing hearing”).
Given Murray’s argument on appeal, non-disclosure in
this case would only result in prejudice, or rather plain
error, if we determined that the district court’s view of the
undisclosed evidence was incorrect. But as shown
above, the trial evidence supports a finding that Murray
was a leader of the drug conspiracy. Murray was a “con-
duit of information,” as evidenced by the phone calls
played at the trial. He arranged meetings between sup-
pliers such as Daniels and distributors such as Rocco,
and Murray coordinated the price and quantity for drug
deals. At least one call showed him giving an order to
Daniels—to tell the “shorties” to be “cool” and “careful.”
And Officer Kimble testified about Murray’s conduct at
the McDonald’s while Are lectured other members of
the conspiracy. Thus, the trial evidence, which Murray
does not allege was unreliable, supports the district
court’s application of the enhancement. Any error in not
disclosing the court’s intent to rely on this evidence before
sentencing was harmless and did not amount to plain
error.
Murray also challenges the district court’s reliance on
“the statements of the other co-defendants in this case.” It
is unclear to which statements the court was referring.
Nonetheless, the information in the PSR and the trial
evidence, including the wiretap evidence, justify the
decision to give Murray the § 3B1.1(a) enhancement.
54 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
c. Sufficiency of the District Court’s Findings
That brings us to Murray’s challenge to the sufficiency
of the district court’s factual findings at sentencing, yet
another challenge that he did not raise below, so again, our
review is for plain error. The court’s discussion of its
findings is sparse. It did not evaluate the reliability of the
evidence, nor identify extensive specifics to support its
conclusion. Nor did the court identify those participants
whom Murray controlled or recruited. However, where
the district court adopts the PSR’s findings, as it did
here, the court rarely needs to add details. United States
v. Torres-Ramirez, 213 F.3d 978, 980 (7th Cir. 2000). In
United States v. Patel, 131 F.3d 1195, 1202 (7th Cir. 1997),
cited by Murray, the court did not reference the PSR in
concluding that the enhancement under § 3B1.1 was
appropriate. But here, the district court did make that
minimal effort.
Admittedly, the district court could have done a more
thorough job in explaining its finding that Murray was
an organizer or leader, but any error in making its
factual findings was harmless. From the record it was
obvious that Murray was at the center of the drug con-
spiracy with responsibility for organizing its activities, a
fact that makes the cases cited by Murray, such as United
States v. Jewel, 947 F.2d 224 (7th Cir. 1991), distinguishable.
Murray supervised others, including Fauntleroy, and
gave orders and directions to other Hustlers, for
example, Daniels, with regard to their drug activities.
Hence, a remand for further factual findings is unnec-
essary.
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 55
3. Statham
Statham brings three challenges to his sentence. He
argues that the court erred in applying a two-level en-
hancement under U.S.S.G. § 2D1.1(b)(1) for possession
of a dangerous weapon during or in connection with a
drug trafficking offense. He also challenges the court’s
criminal history calculation. And, third, Statham
argues that the court failed to adequately consider the
§ 3553(a) factors in determining his sentence.
a. Possession of Firearm in Connection with Drug
Crime
The district court applied the § 2D1.1(b)(1) enhancement
based on the two guns found in Statham’s home in the
safe that also contained about $21,000. Statham admitted
in his plea agreement that he possessed both firearms.
He argues that the court should not have applied the two-
level enhancement because no drugs were found in the
safe or anywhere in his home when agents arrested
him and found the guns. He also points to the PSR, which
states that there was “no direct evidence linking said
weapons to Statham’s drug activities, rather, the FBI
strongly suspects that the guns were used in relation to
the defendant’s drug activities.” We review the district
court’s finding of a relationship between the weapon
and drug offense for clear error. United States v. Perez,
581 F.3d 539, 546 (7th Cir. 2009).
U.S.S.G. § 2D1.1(b)(1) provides: “If a dangerous weapon
(including a firearm) was possessed, increase [the base
56 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
offense level] by 2 levels.” Application Note 3 to § 2D1.1
states:
The enhancement for weapon possession reflects
the increased danger of violence when drug traf-
fickers possess weapons. The adjustment should
be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected
with the offense. For example, the enhancement
would not be applied if the defendant, arrested at
his residence, had an unloaded hunting rifle in
the closet.
Application of § 2D1.1 involves a shifting of burdens.
United States v. Idowu, 520 F.3d 790, 793 (7th Cir. 2008). The
government bears the burden of first proving by a prepon-
derance of the evidence that the defendant possessed the
weapon. Id. (citing United States v. Bothun, 424 F.3d 582, 586
(7th Cir. 2005)). The defendant need not have actual
possession of the weapon; constructive possession is
sufficient. Id. If the government carries its burden, then
the defendant must show that it was “clearly improbable”
that the weapon was connected to the drug offense. Id.We have noted that when a gun is found in “close
proximity” to illegal drugs the gun is presumed “to have
been used in connection with the drug trafficking offense.”
United States v. Souffront, 338 F.3d 809, 833 (7th Cir.
2003). However, close proximity to drugs is not a require-
ment for application of the § 2D1.1(b)(1) enhancement. We
have upheld application of § 2D1.1 where the weapon
was not found in the same place as illegal drugs. See, e.g.,
United States v. Parra, 402 F.3d 752, 767 (7th Cir. 2005)
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 57
(upholding the finding that it was not “clearly improba-
ble” that gun was connected to drug offense where
gun was found under the mattress in defendant’s bed-
room and defendant was selling drugs out of her house);
United States v. Grimm, 170 F.3d 760, 767-68 (7th Cir. 1999)
(concluding that § 2D1.1(b)(1) could apply where defen-
dant had a gun in the trunk of his car but no drugs were
present where he had used the car to deliver drugs six
weeks earlier).
Statham directs us to a few cases to support his
argument that the district court erred in applying the
§ 2D1.1(b)(1) enhancement. First, he cites United States v.
Franklin, 484 F.3d 912 (7th Cir. 2007), in which the defen-
dant had been arrested in his van upon returning
from purchasing cocaine. We reversed because the evi-
dence showed that the weapon was likely a pocket
knife that the defendant used in his electrician business;
the district court may have miscalculated the length of
the blade by misunderstanding the difference between
a “sheath” and a “case”; the police officers who stopped
the defendant saw the knife but did not confiscate it;
and the government did not seek the enhancement any-
way. Id. at 915-16. Statham also cites United States v.
Salery, 119 F. Supp. 2d 1268 (M.D. Ala. 2000), in which the
district court did not apply the § 2D1.1 enhancement. In
that case, officers found a handgun when they arrested
the defendant in his car and found another handgun
and over $50,000 cash in a subsequent search of the defen-
dant’s house. Id. at 1274-75. The district court observed
that the arrest took place eight months after the most
recent drug activity and no drugs were found on the
58 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
premises. Id. at 1275. It concluded that “evidence con-
sisting of only a handgun and cash in a house does not
support a finding of drug transactions in the home. . . .
[T]he government has not produced any evidence to
show that the defendant possessed the handguns
during conduct relevant to the convicted offense.” Id.
These cases are distinguishable from Statham’s situa-
tion. On July 19, 2005, the two guns were found in a safe
with a little over $20,000 in cash in the home of “a
kilogram-size cocaine dealer.” As the government
notes, the amount of cash found in the safe is roughly
the price of one kilogram of cocaine—the quantity that
Statham had been providing to Murray. And the conspir-
acy was ongoing at the time the guns were found; it
had not stopped eight months previously as in Salery.
Statham even admitted in his plea agreement to
having conspired to possess and distribute illegal drugs
“continuing until July 19, 2005.” Moreover, Statham
doesn’t claim that he had a legitimate source of income
to account for the large amount of cash. The district court
reasonably inferred that the cash was drug money. See
United States v. Smith, 308 F.3d 726, 746 (7th Cir. 2002)
(affirming because “[defendant’s] testimony does not
establish an innocent explanation for the presence of the
guns found at his residence, where he kept more than
$100,000 in cash, presumably derived, at least in part,
from drug trafficking,” even though officers did not
find drugs at the residence). Statham offered nothing to
rebut such an inference. And the court reasonably
inferred that the guns were kept in the safe to protect the
drug money. See Perez, 581 F.3d at 547 (“We have consis-
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 59
tently held that weapons are ‘recognized tools of the
drug trade’ and that the possession of a gun can advance
the possession and future distribution of narcotics by
protecting the drugs or the drug dealer.” (citation omit-
ted)).
The temporal proximity to the conspiracy and the
physical proximity to the cash suggest that the guns were
connected to the Statham’s drug dealing. Statham did not
show that it was clearly improbable that the guns were
connected to the drug conspiracy.
b. Criminal History Category
Statham’s next challenge is to the court’s criminal
history category calculation. First, he objects to the addi-
tion of two points on the basis of his commission of the
instant offense within two years from release from
custody pursuant to U.S.S.G. § 4A1.1(e).
During a recorded call on January 25, 2005, Murray
called Statham and asked him whether the “stripper
broad was 19,” meaning whether the kilogram was still
$19,000. Statham replied that “she was still around there
and she still is the same,” meaning that he still had kilo-
grams of cocaine and they were still the same price, and
Murray said that he might need “3 or 4 of them broads
[kilograms] to come to the party.” Statham told Murray to
call him. Murray made several more calls to Statham on
January 29, 30, and 31. Later on the 31st, surveillance
units observed Statham meet with Murray, after which
law enforcement conducted a traffic stop of Murray and
recovered just under one kilogram of cocaine.
60 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
The PSR indicated that Statham was released from
custody on parole on January 29, 2003, and on January 25,
2005, began negotiating the January 31, 2005, cocaine sale
with Murray. (The PSR adopted the allegations of the
criminal complaint. Statham has not challenged the
negotiation dates provided in the criminal complaint
and in the government’s version of the offense which is
attached to his PSR.) The government contends that
the January 31 sale is the culmination of the January 25
negotiation.
Under U.S.S.G. § 4A1.1(e) two points are added to a
defendant’s criminal history “if the defendant committed
the instant offense less than two years after release
from imprisonment.” Statham argues that the additional
points should not have been applied because he was
charged for this crime on January 31, 2005, two years
and two days after he was released from custody on parole.
The district court did not err in applying the enhance-
ment under § 4A1.1. Application Note 5 to § 4A1.1 states:
“Two points are added if the defendant committed any
part of the instant offense (i.e., any relevant conduct) less
than two years following release from confinement on a
sentence counted under § 4A1.1(a) or (b).” The January
25th call between Statham and Murray is a part of the
conspiracy count to which Statham pled guilty. This phone
call got the ball rolling for the January 31 drug transaction.
Based on this call, Statham would have “committed the
instant offense [of conspiracy]” at least as early as
January 25, 2005, so § 4A1.1(e) applies. Likewise,
the January 29 call was part of the negotiations that
culminated in the January 31 transaction.
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 61
Furthermore, Statham admitted in his plea agreement
that beginning no later than January 2002, he conspired
with others to possess with intent to distribute and to
distribute cocaine. Thus, he admitted to committing the
conspiracy offense even before he was released from
custody on parole. And, Statham also admitted in his
plea agreement that he supplied cocaine to Murray in
January 2005 and further admitted that before the
January 31 kilogram transaction, he delivered at least
three ounces of cocaine to Murray on at least three
separate occasions. These admissions support the rea-
sonable inference that Statham delivered cocaine to
Murray prior to January 29, 2005, and that such delivery
was part of the conspiracy. We find no error in adding
two points because the record supports the district
court’s finding that Statham participated in the con-
spiracy less than two years after his release from custody
on parole.
Next, Statham argues that the district court erred in
treating three of his prior convictions as separate
offenses when calculating his criminal history points.
Statham made the identical argument in his appeal of
another case, see United States v. Statham, 581 F.3d 548, 554
(7th Cir. 2009), and it is no more persuasive here. On
August 6, 1996, Statham was sentenced for the crimes of
theft and the unlawful use of a firearm by a felon, for
which he was arrested on December 17, 1995. Also on
August 6, 1996, he was sentenced for possession of a
controlled substance; he was arrested for that offense on
February 24, 1996. And, on August 7, 1996, Statham was
sentenced for a probation revocation, based on a 1989
62 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
arrest for burglary. Statham contends that the district
court should have treated these convictions as
functionally consolidated because the sentences were
imposed on the “same” day and the state judge ap-
parently intended “that a concurrent sentence was appro-
priate punishment for all three convictions.” But that
doesn’t seem to have been the judge’s intent. Instead, it
appears that the judge intended for two of the sentences
to run concurrently and for the sentence for possession
of a controlled substance to run consecutively. See id. at
554-55.
U.S.S.G. § 4A1.2(a)(2) instructs the district court that
in computing criminal history points:
If the defendant has multiple prior sentences,
determine whether those sentences are counted
separately or as a single sentence. Prior sentences
always are counted separately if the sentences
were imposed for offenses that were separated by
an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing
the second offense). If there is no intervening
arrest, prior sentences are counted separately
unless (A) the sentences resulted from offenses
contained in the same charging instrument; or (B)
the sentences were imposed on the same day.
Count any prior sentence covered by (A) or (B) as
a single sentence. See also § 4A1.1(f).
The Guidelines were amended effective November 1,
2007, between the time Statham committed the offense
and the time he was sentenced. We apply the version in
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 63
effect at the time of sentencing. U.S.S.G. § 1B1.11(a)-(b);
18 U.S.C. § 3553(a)(4)(A)(ii). Both the government and
Statham rely on “functional consolidation” cases that
interpret the former Guidelines version. Now, though, the
Guideline is more straightforward: Prior sentences
always are counted separately if they were for offenses
separated by an intervening arrest. See Statham, 581 F.3d
at 555 (finding that notwithstanding the Guideline amend-
ment, the logic of United States v. Best, 250 F.3d 1084,
1094 (7th Cir. 2001)—“intervening arrests preclude consoli-
dation of cases”—“remains compelling”). The record
shows that each of the three offenses at issue was
separated by an intervening arrest. Thus, the district court
did not err in treating these three convictions as separate
offenses when calculating Statham’s criminal history
category.
c. Consideration of § 3553(a) Factors
And, finally, Statham argues that the district court erred
in failing to adequately consider the § 3553(a) factors. He
argues that instead of applying § 3553(a)(2), the court
merely told him that his conduct was detrimental to
society. Beyond this, he simply states that the court
failed to explain the various factors.
We review the district court’s sentencing procedures,
including its consideration of the § 3553(a) factors, de novo.
United States v. Corson, 579 F.3d 804, 813 (7th Cir. 2009). If
we find no procedural error, we consider the substantive
reasonableness of the sentence under an abuse-of-discre-
tion standard. Gall v. United States, 552 U.S. 38, 51 (2007);
64 Nos. 07-3246, 07-3247, 07-3928 & 08-2269
United States v. Scott, 555 F.3d 605, 608 (7th Cir.),
cert. denied, 130 S. Ct. 341 (2009).
The sentencing transcript proves Statham’s claims of
error lack merit. After considering the record, including
the sentencing memorandum, Statham’s supplement to
his attorney’s memorandum, Statham’s statements at the
sentencing hearing, and those of the witnesses who
testified at the hearing on his behalf, the court sentenced
Statham to 125 months’ imprisonment. This was in the
middle of the Guideline range of 110 to 137 months. The
court articulated the basis for the sentence imposed,
discussing the need for punishment, deterrence and
rehabilitation. In particular, the court noted that
Statham’s prior sentences—probation, parole, light sen-
tences and the like—had not deterred him or caused
him to change his criminal ways and stated that Statham
was not likely to be rehabilitated. The court also
mentioned the need to protect the public from the types of
conduct that Statham had been involved in over an ex-
tended period of time, referring to his fourteen-year
span of criminal history. And the court discussed the
seriousness of the offense, and the destructiveness of drug
trafficking in the neighborhoods and the attendant vio-
lence. The district court’s statement of reasons for
Statham’s sentence was sufficient “to allow for meaningful
appellate review and promote the perception of fair
sentencing.” Scott, 555 F.3d at 608 (quotation omitted). In
our view, the court did not fail to adequately consider
the § 3553(a) factors or fail to adequately explain the
chosen sentence.
Nos. 07-3246, 07-3247, 07-3928 & 08-2269 65
Finding the court’s sentencing procedures sound, we
turn to the substantive reasonableness of Statham’s
sentence. A sentence properly calculated within the
Guidelines range is presumed reasonable on appeal. Rita
v. United States, 551 U.S. 338, 347 (2007); United States v.
Meece, 580 F.3d 616, 621 (7th Cir. 2009). A defendant can
rebut this presumption of reasonableness by showing
that his sentence is unreasonable when considered
against the § 3553(a) factors. United States v. Campos, 541
F.3d 735, 750-51 (7th Cir. 2008), cert. denied, 129 S. Ct. 955(2009). Statham has not done so.
III. Conclusion
For the foregoing reasons, we affirm.
12-30-09