United States v. Ivy Tucker , 714 F.3d 1006 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1281
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
IVY T. T UCKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-CR-131—Rudolph T. Randa, Judge.
A RGUED D ECEMBER 4, 2012—D ECIDED A PRIL 30, 2013
Before B AUER and H AMILTON, Circuit Judges, and
T HARP,ΠDistrict Judge.
B AUER, Circuit Judge. Following a three-day jury
trial, Ivy T. Tucker was found guilty of conspiracy to dis-
tribute more than one kilogram of heroin in violation of
Œ
The Honorable John J. Tharp, Jr., District Judge of the
United States District Court for the Northern District of
Illinois, Eastern Division, sitting by designation.
2 No. 12-1281
21 U.S.C. §§ 841 (a)(1) and (b)(1)(A). Tucker was sen-
tenced to 480 months’ imprisonment, followed by five
years of supervised release. On appeal, Tucker argues
he was denied a fair trial because of misconduct by
the prosecutor and the improper admittance of “dual
capacity” evidence testimony of a police officer. For
the reasons that follow, we affirm.
I. BACKGROUND
On May 12, 2009, Tucker and nine co-defendants were
charged with conspiracy to distribute more than one
kilogram of heroin, the use of which resulted in a death
on January 9, 2009. A seven-count superseding indict-
ment returned on June 23, 2009, re-alleged the con-
spiracy count against Tucker and his co-defendants,
and added six additional counts charging several of
Tucker’s co-conspirators with distribution of heroin on
specific occasions during 2008 and 2009. All of Tucker’s
co-defendants pleaded guilty; Tucker proceeded to a
three-day jury trial on October 12, 2010.
During opening statements, the prosecutor explained
that the evidence against Tucker would mostly be
in the form of testimony from his co-conspirators, all
of whom had criminal backgrounds and drug prob-
lems. After summarizing the investigation that lead
to Tucker’s arrest, the prosecutor commented on the
devastating effects of heroin, and referenced prospec-
tive jurors’ personal experiences with family members’
drug abuse that they had shared with the court during
voir dire. He said:
No. 12-1281 3
And heroin is a highly addictive drug. It’s a horrible
drug. And as we all know from news accounts, and
some of the people told us during jury selection, it’s
a drug that can kill you. It can kill you the first time
you use it . . . .
Tucker’s trial counsel did not object to these statements.
The evidence at trial did consist primarily of testi-
mony from Tucker’s nine co-conspirators, who testified
that Tucker ran a heroin distribution ring in Racine,
Wisconsin, from 2008 through 2009. The jury also heard
from the lead investigator on the case, Officer Jason
Baranek, a twelve-year veteran of the Oak Creek, Wis-
consin, Police Department. Officer Baranek’s testimony
set the stage for the rest of the Government’s case by
describing how his investigation of Tucker unfolded.
Officer Baranek explained that in early 2008, Oak Creek,
Wisconsin, was plagued by rising heroin overdoses
and related theft cases. This disturbing trend prompted
Officer Baranek, a member of the Drug Enforcement
Unit, to begin an investigation into heroin trafficking
in Racine County. Officer Baranek explained that as part
of the investigation, local law enforcement, working
in conjunction with the Federal Drug Enforcement Ad-
ministration (DEA), conducted “controlled purchases”
in which a cooperating informant would use govern-
ment money to buy heroin from his drug source. Then
the individuals arrested after the controlled purchase
would be “debriefed.” During debriefing, a member of
law enforcement interviewed the suspects in hopes
of uncovering the source of their drug supply, as well as
4 No. 12-1281
the identity of any other individuals involved, any prac-
tices used to deliver the drugs, and whether any other
crimes were being committed. Officer Baranek also pro-
vided the jury with details about the use of “stash
houses” and other drug-trafficking practices based
upon his experience as a member of the Drug Enforce-
ment Unit.
Destiny Merritt, Tucker’s ex-girlfriend, was one of the
nine testifying co-conspirators at his trial. She said the
two began dating in 2008. Merritt testified that Tucker
paid her expenses, such as rent and car payments, and
in exchange Merritt sold heroin for Tucker and allowed
him to store drugs in her apartment. Merritt stated that
she accompanied Tucker on trips where he purchased
heroin, paying approximately $70,000 for a kilogram.
Merritt also testified that she aided Tucker in sup-
plying multiple customers with heroin. Tucker would
“front” the drugs to Merritt, and she would reimburse
him once she was paid by the customers.
Charles Stuck, another co-conspirator, also testified
against Tucker. Stuck testified that he initially pur-
chased one to two grams of heroin from Merritt per
week and later increased the amount to multiple grams
daily. Stuck kept some of the heroin for personal use
and sold the rest in South Milwaukee. Stuck also testi-
fied that Merritt told him that Tucker was her heroin
supplier, and on at least one occasion, Tucker accom-
panied Merritt when she sold to Stuck. Furthermore,
Stuck testified that Tucker asked him if he wanted to
start selling heroin for him.
No. 12-1281 5
In addition to Stuck and Merritt, seven other indi-
viduals took the stand and identified Tucker as the
source of their heroin supply. During his defense, Tucker
offered into evidence a stipulation that, if called to
testify, Noconnco Price (who was never charged in
relation to this case) would state that he spoke with
DEA Agent Ken Darling on January 14, 2009, and identi-
fied Tucker as a customer of another co-conspirator,
rather than the central supplier. Tucker exercised his
right not to testify, and the district court instructed the
jury that no inference of guilt could be drawn from
that decision.
During closing arguments, defense counsel questioned
the credibility of the Government’s witnesses by im-
plying they had a motivation to lie in exchange for fa-
vorable plea deals. In rebuttal, the prosecutor stated:
But we’re supposed to trust that they’re smart
enough that they all get together somewhere, some-
how—some of these people are out some are in jail.
They’re all over the place. But they all sit down
shortly after their arrest and say this is what hap-
pened. And—what? All their stories are the same?
It’s the same guy? It’s Mr. Tucker.
The prosecutor also explained to the jury how plea
agreements may affect the testifying co-conspirators:
They testified as to their deal. Their deal—their deal
isn’t made with the Government. They’re still facing
long prison terms. And their deal and their ulti-
mate sentence isn’t decided by the Government. It’s
not decided by the United States Attorneys Office.
It’s decided by one man. That’s Judge Randa, who’s
6 No. 12-1281
sitting in there. Who’s listening to this testimony.
Who’s examining what these witnesses say. And
he’ll make the ultimate determination.
The prosecutor went on to add:
You know, it’s one person’s witness against an-
other. And in this case it’s nine witnesses against
Mr. Tucker, saying that he was involved in this role,
in this conspiracy. You’ve heard the evidence in
this case. You—each and every one of you know
what the truth is in this case.
The prosecutor then utilized imagery of local children
purchasing heroin from street dealers:
After he was selling it to the Oak Creek kids, as
Mr. [William] White testified to. There are all theses
kids coming down from Oak Creek, Franklin, South
Milwaukee. You know, we know that there’s an in-
crease in heroin because we read about it every day
in the paper. And these kids are going down there
looking for one thing. They’re looking for heroin.
After closing arguments, the district court instructed
the jury as to the law, reminded it that the lawyers’ state-
ments are not evidence, and again admonished the jury
that no inference of guilt could be drawn from Tucker’s
decision not to testify. Ultimately, the jury returned a
verdict of guilty on the conspiracy count and found that
the offense involved more than one kilogram of heroin.
Tucker was sentenced to 480 months’ imprisonment,
followed by five years of supervised release. Tucker filed
a timely notice of appeal on February 7, 2012.
No. 12-1281 7
II. DISCUSSION
Tucker challenges his conviction on two grounds.
First, he argues that the prosecutor made numerous
improper remarks that denied Tucker his right to a fair
trial under the due process clause of the Fifth Amend-
ment to the United States Constitution. Second, he con-
tends that Officer Baranek was improperly allowed to
testify as a “dual capacity” witness. Tucker has an
uphill battle on appeal, since defense counsel failed to
make objections at trial, this Court’s review is limited
to plain error. United States v. Christian, 673 F.3d 702, 708
(7th Cir. 2012). Under the plain error standard, we must
determine whether there was (1) an error, (2) that was
plain, meaning clear or obvious, (3) that affected the
defendant’s substantial rights in that he probably
would not have been convicted absent the error, and
(4) that seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Id. Even if
there is a finding of plain error, in order to prevail,
Tucker must “show that the error caused a ‘miscar-
riage of justice, in the sense of seriously affecting the
fairness, integrity, or public reputation of judicial pro-
ceedings.’ ” Id. (citing United States v. Ambrose, 668 F.3d
943, 963-64 (7th Cir. 2012)).
A. Prosecutorial Misconduct
We first consider Tucker’s argument that improper
statements by the prosecutor denied him a fair trial.
When evaluating questions of prosecutorial misconduct,
we undertake a two-part inquiry. We first determine
8 No. 12-1281
whether the prosecutor’s conduct was improper, and if
so, we then evaluate the conduct in light of the entire
record to determine if the conduct deprived the de-
fendant of a fair trial. United States v. Smith, 674 F.3d 722,
728-29 (7th Cir. 2012). “[I]t is not enough that the pros-
ecutor’s remarks were undesirable or even universally
condemned. The relevant question is whether the pros-
ecutor’s comments so infected the trial with unfairness
as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181,
106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
Here, Tucker argues that the prosecutor: (1) referenced
prior witness statements not in evidence; (2) improperly
commented on Tucker’s decision not to testify; (3) mis-
construed the nature of the co-conspirators’ plea agree-
ments; and (4) improperly referenced familial experi-
ences with heroin that jurors’ shared with the court
during voir dire. We address each of his contentions
in turn.
1. The Prosecutor Referenced Prior Consistent
Statements Not in Evidence.
In this case, nine co-defendants with firsthand knowl-
edge of Tucker’s drug trafficking testified against him.
This testimony was the bulk of the Government’s evidence,
so the case hinged a good deal on their credibility. In
an attempt to undermine that credibility, Tucker’s trial
counsel pointed out during cross-examination that
these witnesses had a motive to lie in order to receive
favorable plea agreements from the Government. The
prosecutor, in turn, attempted to bolster the credibility
No. 12-1281 9
of these witnesses during closing arguments by making
statements that could be construed as suggesting that
all nine of Tucker’s co-conspirators, immediately after
being arrested, told law enforcement that Tucker was
the source of their heroin supply. However, no prior
consistent statements were offered into evidence
during the trial so, even when viewed in isolation, it
was dangerous for the prosecutor to allude to witness
statements that were not offered in evidence.
The more difficult question, however, is whether these
improper statements warrant a new trial under the
plain error standard of review. Tucker argues that the
statements made by the prosecutor amount to power-
fully incriminating evidence that cannot be cured. In
support of this contention, Tucker relies upon United
States v. Fearns, 501 F.2d 486 (7th Cir. 1974). In Fearns,
the prosecutor told the jury during his closing argument
that a Government witness made a prior statement
“about these men being involved in this” and without
that statement the Government “wouldn’t have even
known about them.” Id. at 488. There was no objection
by defense counsel. Then during rebuttal argument, the
prosecutor went on to add, “[I]n connecting with the
last statement [defense counsel] made about Dianne,
I want to remind you again that she gave us the story
before she was ever indicted.” Id. at 489. Defense coun-
sel did object to that statement, and his objection
was sustained.
In evaluating whether the improper comments made
by the prosecutor in Fearns warranted reversal, we
stated that:
10 No. 12-1281
Even though defendants did not object when the
prosecutor went outside the record in his [closing]
argument, and their objection was sustained when
he did so in rebuttal, the prosecutor’s gross miscon-
duct requires reversal under the plain error rule.
Fearns, 501 F.2d at 489.
Two years later, relying on Fearns, we ordered a new
trial in United States v. Davis, 532 F.2d 22, 28 (7th Cir. 1976).
In Davis, the prosecutor commented during his closing
argument that a witness relayed information to him
prior to trial that was consistent with the witness’ trial
testimony. Id. Defense counsel objected, and the court
admonished the prosecutor to “[j]ust stick to the evi-
dence.” Id. Compelled by our decision in Fearns, we
held that the Government’s misstep was not a harmless
error as “the prosecutor violated the fundamental rule
that argument to a jury is limited to the facts in evi-
dence” and ordered the case to be retried. Id.Tucker argues that Fearns establishes that prosecu-
torial references to prior consistent statements, that
were not put before the jury as evidence, “create
prejudice that could not have been eradicated by any
action of the trial judge.” Fearns, 501 F.2d at 489. As our
questions during oral argument in this case suggested,
we believe that such an interpretation of Fearns imposes
an unreasonable burden on the district court of having
to listen to closing arguments with a hair trigger on
the mistrial button—whether defense counsel has
launched an objection or not. Generally, “a mistrial is
appropriate when an event during trial has a real likeli-
No. 12-1281 11
hood of preventing a jury from evaluating the evidence
fairly and accurately, so that the defendant has been
deprived of a fair trial.” United States v. Collins, 604
F.3d 481, 489 (7th Cir. 2010) (citing Deicher v. City of Evans-
ville, 545 F.3d 537, 543 (7th Cir. 2008)). We will only
find plain error if the district court failed to declare a
mistrial when it was clear and obvious that a mistrial
was necessary. United States v. Tanner, 628 F.3d 890, 898
(7th Cir. 2010). Meaning, it must have been obvious to
the district court both that an error occurred and that
the error deprived the defendant of a fair trial. Id. How-
ever, it appears Fearns has been interpreted to impose
a duty on the district court to sua sponte declare a
mistrial when prosecutorial comments potentially cross
the line of impropriety, without regard to the critical
next step in the analysis. This result is not in harmony
with the balance of our case law as we do not review
allegations of prosecutorial misconduct in a vacuum,
but rather in the larger context of the parties’ closing
arguments and the trial itself. Id. at 896. This aspect
of Fearns and Davis also invites serious double jeopardy
risks, since a defendant has the right to have his trial
completed by the first jury empaneled to try him, United
States v. Gilmore, 454 F.3d 725, 729 (7th Cir. 2006), and
defense counsel may well have good tactical reasons
for not objecting to a prosecutor’s mistake in closing
argument. See United States v. Jozwiak, 954 F.2d 458, 459
(7th Cir. 1992). Therefore, we now overrule Fearns to
the extent that it imposes such a burden on the district
court, and reaffirm our position that even if we deter-
mine a comment to be improper when read in isola-
12 No. 12-1281
tion, unless the remark, when interpreted through
the full context of the record, “so infects the trial with
unfairness as to make the resulting conviction a denial of
due process,” we will not reverse under the plain error
test. United States v. McClinton, 135 F.3d 1178, 1189 (7th
Cir. 1998) (internal citations omitted).1
As we have stated, though we may agree with
Tucker that the Government’s comments were improper,
when read within the full context of the record, there
is nothing to suggest that these comments denied
Tucker a fair trial. The district court instructed the jury
that statements of the attorneys are not evidence, and
“jurors are presumed to follow limiting and curative
instructions unless the matter improperly before them
is so powerfully incriminating that they cannot be rea-
sonably expected to put it out of their minds.” United
States v. Smith, 308 F.3d 726, 739 (7th Cir. 2002). Tucker
has not provided any support to undermine that pre-
sumption. In the face of overwhelming evidence of
his guilt, Tucker argues that but for the prosecutor’s
unfortunate implication the jury would have discredited
the corroborated testimony of his nine co-conspirators
because of their pending plea agreements. We disagree.
The nine co-conspirators gave detailed testimony against
Tucker describing both the nature and scope of his heroin-
1
Because this decision overrules a prior decision of this
court, pursuant to Circuit Rule 40(e), we have circulated it
among all judges in regular active service. None of the judges
requested a hearing en banc.
No. 12-1281 13
distribution ring. There is nothing in the record to
suggest that the result of this trial would have been
different absent the prosecutor’s unfortunate remarks.
2. The Prosecutor’s Comment Regarding Tucker’s
Silence.
Next, Tucker argues that the prosecutor made an im-
proper statement that brought to the jury’s attention
Tucker’s decision not to testify on his own behalf. A
prosecutor may not make comments, either directly or
indirectly, that lead the jury to draw a negative in-
ference from a defendant’s decision not to testify. United
States v. Hills, 618 F.3d 619, 640 (7th Cir. 2010) (citing
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d
106 (1965)). It is a violation of the Fifth Amendment
privilege against self-incrimination for a prosecutor to
directly and adversely comment on the defendant’s
failure to testify on his own behalf. Id. On the other
hand, an indirect comment will be deemed improper
“only if (1) the prosecutor manifestly intended to refer
to the defendant’s silence or (2) a jury would naturally
and necessarily take the remark for a comment on the
defendant’s silence.” United States v. Mietus, 237 F.3d
866, 871 (7th Cir. 2001).
In this case, during rebuttal argument, the prosecutor
stated:
You know, it’s one person’s witness against an-
other. And in this case it’s nine witnesses against
Tucker, saying that he was involved in this role, in
this conspiracy.
14 No. 12-1281
Tucker finds this comment analogous to the Govern-
ment’s remark in United States v. Rodriguez, 627 F.2d
110, 111 (7th Cir. 1980), where we found that the pros-
ecutor made a direct comment on the defendant’s
silence when he stated that the defendant “had been
very quiet at the end of the counsel table.” We disagree
that the prosecutor’s comment in this case rises to that
level of impropriety, even when read in isolation. The
Government, here, was not making a direct comment
on Tucker’s decision not to testify, but rather on his
assertion—evidenced by his not guilty plea—that he
was not involved in a drug ring.
Tucker also argues, in the alternative, that this remark
by the prosecutor was an indirect comment on his si-
lence. To that end, Tucker contends that we have con-
sistently found a prosecutor’s comment insinuating
that the Government’s evidence is “uncontradicted,”
“undenied,” “unrebutted,” “undisputed,” etc., to be
improper when the only witness who can provide
contrary testimony is the defendant. United States v.
Cotnam, 88 F.3d 487, 497 (7th Cir. 1996). We do not find
that to be the case here. Although Tucker did exercise
his right not to testify, he was not the only witness
capable of contradicting the Government’s version of
the facts. Rather, Tucker offered into evidence a stipu-
lation which stated, that if called to testify, Noconnco
Price, would say that he identified Tucker to the DEA
as a customer of co-conspirator James Silas. This stipula-
tion was offered to rebut the Government’s argument that
Tucker was the central heroin supplier in the drug ring;
we do not interpret the prosecutor’s remark to be an
No. 12-1281 15
indirect comment on Tucker’s decision not to testify
on his behalf.
Additionally, even if we found this comment to be
made in error, there is nothing in the record to indicate
that Tucker suffered any prejudice as a result. The jury
was cautioned by the district court that Tucker had a
right to remain silent and “was not required to put on
any evidence at all.” We find no support for Tucker’s
contention that he was deprived of a fair trial by this
remark by the prosecutor.
3. The Prosecutor’s Vouching for the Government
Witnesses by Placing the Authority of the
District Court Behind Their Testimony.
Tucker also contends that the prosecutor misrep-
resented to the jury the nature of the Government wit-
nesses’ plea agreements by implying that the reliability
of their testimony was vouched for by the district court.
Specifically, Tucker argues that the prosecutor rep-
resented that the plea agreements were actually between
the court and the witnesses.
During rebuttal, the prosecutor explained that
Judge Randa, “who’s sitting in here . . . listening to this
testimony . . . examining what these witnesses say” would
make the ultimate decision as to whether the witnesses
would receive the benefit of their plea agreements. The
Government concedes that the prosecutor’s remarks
were “inartfully” phrased, and we agree. A prosecutor
may not bolster the credibility of a witness by implying
16 No. 12-1281
that facts not before the jury lend to the witness’ credi-
bility. United States v. Anderson, 303 F.3d 847, 855 (7th
Cir. 2002). Here, the prosecutor’s maladroit handling of
his rebuttal argument is regrettable. However, when
taken in context, it is apparent that the prosecutor was
attempting to convey to the jury that the judge makes
the ultimate determination of the testifying co-conspira-
tors’ sentence but does not determine their credibility.
4. The Prosecutor Commented on the Effect
of Heroin on Jurors’ Families.
Next, Tucker argues that the prosecutor attempted to
emphasize to the jury the devastating effects of heroin
by improperly referencing experiences shared by indi-
vidual jurors with the court during voir dire. While it
is impossible to expect a criminal trial to proceed de-
void of any emotion, we do prohibit arguments that are
so inflammatory and prejudicial that they deprive the
defendant of a fair trial. United States v. Zylstra, 713
F.2d 1332, 1339 (7th Cir. 1983). We have held that it
would be improper for the prosecutor to refer to a
juror’s family or children specifically, United States v.
Zanin, 831 F.2d 740, 743 (7th Cir. 1987), but, a prosecutor
can impress upon the jury the seriousness of the charges
and comment on the ongoing drug problem in American
culture. Zylstra, 713 F.2d at 1340.
In this case, during his opening statement, the pros-
ecutor told the jury, “[H]eroin is a highly addictive
drug . . . and some of the people told us during jury
selection, it’s a drug that can kill you. It can kill you the
No. 12-1281 17
first time you use it.” Then during his closing argument,
the prosecutor said, “[It] would be easy for you to look
at Mr. Tucker and say okay, well, this is a case about
heroin distribution in the central city. What does it have
to do with me? But don’t kid yourself, drugs are
destroying this community.” Tucker argues the pros-
ecutor’s comments were improper because he refer-
enced experiences shared by jurors during jury selec-
tion. On review we focus on the “probable effect the
prosecutor’s [remark] would have on the jury’s
ability to judge the evidence fairly.” Zanin, 831 F.2d at
742 (quoting United States v. Young, 470 U.S. 1, 12,
105 S.Ct. 1038, 1045, 84 L.Ed.2d 1 (1985)).
Here, the prosecutor’s comments centered around
the seriousness of heroin use generally, not the effect
of the drug on specific juror’s family or friends. There-
fore, we find the prosecutor’s statements were not im-
proper and would not have interfered with the jury’s
ability to fairly judge the evidence before it.
B. Officer Baranek’s “Dual Capacity” Testimony
Tucker next argues that the Government improperly
used Officer Baranek as a “dual capacity” witness, with-
out giving the jury any guidance on how to properly
evaluate such testimony. A “dual capacity” witness
weaves fact and expert opinion testimony together,
and “[t]hough such a practice is routinely upheld, par-
ticularly where experienced law enforcement officers
were involved in the particular investigation at issue,
there are inherent dangers involved . . . .” United States
18 No. 12-1281
v. York, 572 F.3d 415, 425 (7th Cir. 2009) (internal cita-
tions omitted). For example, the jury may “unduly
credit the opinion testimony of an investigating officer
based on a perception that the expert was privy to
facts about the defendant not presented at trial.” Id.(citing United States v. Upton, 512 F.3d 394, 401 (7th Cir.
2008)). Therefore, district courts must take precau-
tionary measures to ensure the jury understands how to
properly evaluate the evidence as presented. Such safe-
guards can include cautionary jury instructions, a
properly structured direct examination which makes
clear when the witness is testifying as to facts or when
he is offering his expert opinion, establishing the
proper foundation for the expert component of the testi-
mony, and allowing for the rigorous cross-examination
of the dual capacity witness. York, 572 F.3d at 425.
Here, both sides agree that Officer Baranek testified
as a dual capacity witness. Again, as no objection was
raised, our review is limited to plain error. United States
v. Christian, 673 F.3d 702, 708 (7th Cir. 2012). Although
the record in this case would surely not serve as a
model on how to properly manage a dual capacity
witness, the prosecutor did lay a foundation for Officer
Baranek’s expertise, noting his twelve years of ex-
perience in drug investigations and nine years of service
on the Drug Enforcement Unit. Officer Baranek was also
subject to cross-examination and a re-cross, where his
“expert” testimony concerning the role of controlled buys
and stash houses in drug investigations was probed by
defense counsel. Further, Tucker does not question Officer
Baranek’s qualifications, and there is little doubt he would
No. 12-1281 19
have been able to be qualified as an expert, thus failure to
“formally anoint” him as such is harmless. See York, 572
F.3d at 422. Although we agree with Tucker that Officer
Baranek’s dual capacity testimony could have been more
deftly conducted, we do not find plain error. As in Chris-
tian, “given that the safeguards taken (although they could
have been better) helped [to] alleviate the risk of jury
confusion, we do not find a miscarriage of justice in the
blending of dual testimony.” Christian, 673 F.3d at 714.
C. Cumulative Error
Lastly, Tucker argues that while the errors that
occurred during his trial might not rise to the level of
reversible error individually, when they are considered
as a whole, they warrant granting him a new trial. To
demonstrate that such a cumulative error occurred,
Tucker must establish that “(1) at least two errors
were committed in the course of the trial; (2) when con-
sidered together along with the entire record, the
multiple errors so infected the jury’s deliberation that
they denied the petitioner a fundamentally fair trial.”
United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001).
Even accepting that the Government improperly in-
sinuated that the co-conspirators gave prior consistent
statements, and also implied that the district court
played some role in vouching for the plea agreements of
the co-conspirators, we are not convinced that but for
these missteps the outcome of Tucker’s trial would
have been different. Rather, the evidence against Tucker
was overwhelming. Nine co-conspirators testified con-
20 No. 12-1281
sistently and corroborated that they either: (1) saw Tucker
purchase heroin; (2) purchased heroin from Tucker;
(3) sold heroin for Tucker; or (4) packaged and dis-
tributed heroin for Tucker. The record here fairly dem-
onstrates Tucker’s guilt, “such that none of the as-
serted errors, either individually or cumulatively” could
have affected the jury’s result. United States v. Adams,
628 F.3d 407, 420 (7th Cir. 2010) (quoting Anderson v.
Sternes, 243 F.3d 1049, 1055 (7th Cir. 2001)). We therefore
do not accept Tucker’s contention that he was deprived
of a fair trial.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment
of the district court.
4-30-13