United States v. Terrance Brasher ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1997
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE BRASHER,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:15-cr-00028-TWP — Tanya Walton Pratt, Judge.
ARGUED JANUARY 8, 2020 — DECIDED JUNE 11, 2020
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. A grand jury charged Terrance
Brasher and 14 other defendants with engaging in a conspiracy
to distribute narcotics in and around the Southern District of
Indiana. See 21 U.S.C. §§ 846, 841(a)(1). Only Brasher pro-
ceeded to trial, and after hearing the government’s evidence,
a jury found him guilty. The district court ordered him to serve
2 No. 18-1997
a term of life in prison. See 21 U.S.C. § 841(b)(1)(A) (2016).
Brasher appeals, asserting that there was a material variance
between the conspiracy as charged and as proven at trial, that
the government’s proof at trial constructively amended the
indictment, that the government improperly exercised its
peremptory challenges to exclude two African American
venire members during the jury selection process, that the
prosecutor made prejudicial remarks in closing argument, that
the government made improper use of evidence obtained via
court-authorized wiretaps, and that the district court errone-
ously precluded him from challenging one of the prior narcot-
ics convictions which triggered his mandatory term of life
imprisonment. Finding no merit to any of these arguments, we
affirm Brasher’s conviction and sentence.
I.
Brasher was one spoke in a large hub-and-spoke narcotics
conspiracy centered in Louisville, Kentucky. Defendant Carlos
Shelton headed the conspiracy and was therefore at its hub.
Terry Martin, an Indiana resident whose Louisville auto
supply shop served as the de facto headquarters for the
operation, was Shelton’s partner in the criminal enterprise,
frequently pooling money with Shelton to acquire narcotics.
Maycoe Ortiz, who had a mechanic shop in Louisville, Ken-
tucky across the street from Martin’s auto shop, became a
principal supplier of narcotics for the conspiracy.
It was Martin who introduced Brasher to Shelton. Martin
knew Brasher from a previous stint of incarceration. In or
about September 2014, Martin supplied Brasher with a small
quantity of heroin. Brasher quickly sold the heroin and
No. 18-1997 3
returned to Martin asking for more. Martin did not think that
he would be able to supply Brasher with the quantities Brasher
needed, so he introduced Brasher to Shelton, and Brasher
became Shelton’s customer.
Shelton distributed narcotics to dealers in both Indiana and
Kentucky. Louisville is on the northern Kentucky border,
directly across the Ohio river from multiple southern Indiana
municipalities, including New Albany and Jeffersonville, that
are part of the greater Louisville metropolitan area. Brasher
himself lived in Louisville, Kentucky, and distributed drugs
there. After joining the conspiracy in the Fall of 2014, he
remained a participant until authorities brought it to an end
with multiple searches and arrests in December 2015. So far as
the trial record reveals, Brasher did not distribute drugs in
Indiana, took no conspiracy-related actions in Indiana, and did
not interact with any of the Indiana dealer/spokes.
As he did with other dealers, Shelton typically “fronted”
heroin, cocaine, and methamphetamine to Brasher and
accepted payment from the proceeds of Brasher’s subsequent
re-sales of the substances. Dealers, whether operating in
Indiana or Kentucky, typically came to Louisville to pick up
their drugs or drop off their payments for Shelton; occasion-
ally, Shelton would meet a dealer in Indiana. Like other
dealers, Brasher often picked up his supply of narcotics at
Martin’s auto supply shop and dropped off cash to reimburse
Shelton at the same location (Shelton had a key to Martin’s
shop). Brasher was Shelton’s most reliable dealer: He moved
relatively large quantities of narcotics and paid his debts to
Shelton on time. Shelton came to consider Brasher his “number
one customer” (R. 888 at 299) and developed “a strong relation-
4 No. 18-1997
ship based on trust with [him]” (R. 889 at 481). Brasher also on
several occasions supplied kilogram quantities of cocaine to
Shelton that he obtained from his own supplier in Texas. On
one occasion, a multi-kilogram quantity of cocaine that Brasher
had purchased with nearly $100,000 of Shelton’s money was
lost in shipment when the driver was stopped by police. Such
was Shelton’s trust in Brasher that he accepted Brasher’s
account of the incident and continued to do business with him.
A superseding indictment charged that Brasher conspired
with Shelton, Martin and others in the Southern District of
Indiana and elsewhere to distribute heroin, cocaine, and
methamphetamine in violation of 21 U.S.C. §§ 846 and
841(a)(1). As we noted at the outset, every named defendant
other than Brasher pleaded guilty. Shelton, Martin, and Ortiz
testified for the government at Brasher’s trial in January 2018,
and at the conclusion of a four-day trial, the jury convicted him
of the conspiracy charge. In its verdict, the jury specifically
found Brasher responsible for the distribution of 500 grams or
more of methamphetamine, at least one kilogram of heroin,
and five kilograms or more of cocaine.
Prior to the trial, the government filed two notices of
Brasher’s prior felony drug convictions pursuant to 21 U.S.C.
§ 851. The first notice referenced a 2000 conviction for, inter
alia, drug trafficking, and the second referenced three such
convictions in 2013. At sentencing, the district court found that
because Brasher had at least two prior felony drug convictions,
he was subject to enhanced statutory sentencing provisions
which in his case dictated a life term in prison. See 21 U.S.C.
No. 18-1997 5
§ 841(b)(1)(A) (2016).1 Based on additional testimony and wire
intercepts presented at the sentencing hearing, the district
court also found that Brasher was responsible for a murder
committed in furtherance of the conspiracy, and that finding
resulted in an offense level likewise calling for life imprison-
ment under the Sentencing Guidelines. In compliance with the
statutory mandate, the court ordered Brasher to serve a life
term.
II.
A. Variance between the indictment and the trial evidence.
Although the superseding indictment charged a conspiracy
to distribute drugs that took place in the Southern District of
Indiana and elsewhere, Brasher, as discussed above, appears
to have operated in Kentucky exclusively. This leads him to
argue that he was not involved in the larger conspiracy
encompassing Indiana and that the evidence at most estab-
lished that he was part of a separate conspiracy to distribute
narcotics solely in Kentucky. Consequently, he argues, there
was a fatal variance between the conspiracy as charged and the
proof at trial, as there was no proof that he participated in a
conspiracy to distribute drugs in the Southern District of
Indiana.
A conspiracy variance claim is essentially a challenge to the
sufficiency of the evidence underlying the conviction, United
States v. Stevenson, 656 F.3d 747, 752 (7th Cir. 2011) (citing
United States v. Womack, 496 F.3d 791, 794 (7th Cir. 2007)); and
1
Subsequent to Brasher’s sentencing, the statute was amended to eliminate
the mandatory life term. See P.L. 115-391, 132 Stat. 5194, 5220 (Dec. 21, 2018).
6 No. 18-1997
to that extent, we must, of course, examine the evidence in the
light most favorable to the government, id. If the evidence
reveals that there was actually more than one conspiracy, as
Brasher contends there was here, we will not find a fatal
variance so long as the jury could have found beyond a
reasonable doubt that among the multiple conspiracies was the
conspiracy charged in the indictment. Womack, 496 F.3d at 794
(citing United States v. Williams, 272 F.3d 845, 862 (7th Cir.
2001)); see also United States v. James, 540 F.3d 702, 706–07 (7th
Cir. 2008).
To sustain its burden of proof on the conspiracy charge, the
government was required as a general matter to show that
Brasher knowingly joined an agreement to commit a criminal
offense. United States v. Green, 648 F.3d 569, 579 (7th Cir. 2011);
United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010); United
States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009). More specifi-
cally, the government had to prove that Brasher embraced a
common criminal objective with Shelton and the other co-
conspirators—namely, the distribution of narcotics. See United
States v. Tello, 687 F.3d 785, 793 (7th Cir. 2012); Green, 648 F.3d
at 579. But Brasher did not need to know every member of the
conspiracy nor did he need to participate in every act of the
conspiracy in order to be convicted. Avila, 557 F.3d at 814;
James, 540 F.3d at 707–08. As long as he was aware of the aim
of the conspiracy and made a knowing decision to join it, he
may be held to account for each act foreseeably committed in
furtherance of the conspiracy by another conspirator. United
States v. Thompson, 286 F.3d 950, 964 (7th Cir. 2002).
As we have noted, this was a classic hub-and-spoke
conspiracy in which there were many dealers who served as
No. 18-1997 7
spokes, interacting with certain central figures like Shelton at
the hub. To qualify as a single conspiracy, a hub-and-spoke
operation must have a “rim” connecting the spokes, namely,
“an agreement to further a single design or purpose[.]” Avila,
557 F.3d at 814 (citing United States v. Bustamonte, 493 F.3d 879,
885 (7th Cir. 2007)). Brasher agrees that, as a narcotics dealer,
he was a spoke in Shelton’s narcotics enterprise, but he
contends that there was no such rim uniting him with all of the
other dealers Shelton supplied—including in particular the
dealers in Indiana—and that consequently this was not one
conspiracy but, at a minimum, two conspiracies: one focused
on distributing drugs in Kentucky and one doing the same in
Southern Indiana.
But especially given Brasher’s particular place in the
enterprise, the jury readily could have concluded otherwise.
Brasher, repeatedly and over a substantial period of time, had
the drugs fronted to him and repaid Shelton from the proceeds
of his sales, which is one factor signaling that he had more than
a mere buyer-seller relationship with Shelton. See United States
v. Hopper, 934 F.3d 740, 755 (7th Cir. 2019); United States v.
Moreno, 922 F.3d 787, 794–95 (7th Cir. 2019). And what Brasher
was doing in these respects was no different than what other
dealers supplied by Shelton were doing, including dealers who
operated in Indiana. Indeed, on at least one occasion, Shelton
mentioned another dealer to Brasher, explaining that he
(Shelton) needed to reserve a couple of ounces for that individ-
ual from a supply of cocaine he was otherwise making avail-
able to Brasher. R. 888 at 369–70. More than that, Brasher was
not only a dealer, but occasionally a supplier to Shelton and
thus to the broader enterprise. So Brasher was necessarily
8 No. 18-1997
aware of the existence of other dealers and that the enterprise
extended beyond his own dealings with Shelton and Martin.
See Avila, 557 F.3d at 814–15. And given that he was making
multi-kilogram purchases of cocaine on Shelton’s behalf, he
would have had some idea of the scope of the conspiracy; at
the same time, his willingness to undertake such purchases
demonstrates his agreement to further the overall conspiracy.
Id. In short, Brasher was not just operating as an isolated dealer
in Kentucky. See James, 540 F.3d at 707–08.
Moreover, the distinction that Brasher attempts to draw
between the Indiana dealers and Kentucky dealers is an
artificial one, given the geographic realities of the Louisville
metropolitan area. People cross state lines as a matter of
routine, particularly in metropolitan areas, like the Louisville
metroplex, that straddle a border. As one of the government’s
witnesses, a Louisville police officer, testified at trial, “[t]here
are no boundaries in criminal activity,” and consequently it is
not uncommon for people to conspire with someone across a
river. R. 889 at 742. Thus, it is no surprise that Shelton was
supplying dealers on both sides of the Ohio river, that a
conspiracy member like Martin, for example, might live in
Indiana but operate a place of business (both legitimate and
criminal) in Louisville proper, or that the methamphetamine
supplied to conspiracy members, including Brasher, was
processed at a house on the Indiana side of the river/border
before it was distributed to Brasher and others operating on the
Kentucky side of the border. Brasher himself mentioned a trip
across the river to Indiana “to grab something for his car,” in
one of the intercepted conversations introduced at trial (R. 889
at 455); and although the record does not disclose whether that
No. 18-1997 9
trip was in any way related to the conspiracy, it illustrates the
larger point that people living on the Kentucky side of the river
do not necessarily remain there at all times. Brasher confined
his trafficking activities to Kentucky, but it would have been
reasonably foreseeable to him that other members of the
conspiracy might be trafficking narcotics in Indiana and/or
traveling to Indiana for conspiracy-related purposes. Indeed,
it is not at all unusual for conspiracies to cross state and
judicial district lines; hence, the law recognizes that such
crimes may be prosecuted in any district where one’s co-
conspirators have acted in furtherance of the conspiracy. See 18
U.S.C. § 3237(a) (venue for offenses, inter alia, committed in
more than one district may be prosecuted in any district in
which the offense was begun, continued, or completed); Hyde
v. United States, 225 U.S. 347, 356–67, 32 S. Ct. 793, 798–802
(1912) (conspirators could be tried in forum district based on
overt acts taken by unindicted co-conspirator in that district,
which rendered defendants constructively present in that
district); United States v. Wren, 363 F.3d 654, 660 (7th Cir. 2004)
(venue proper in any district wherever one overt act in
furtherance of the conspiracy was committed) (citing United
States v. Rodriguez-Moreno, 526 U.S. 275, 119 S. Ct. 1239 (1999)),
j. vacated on other grounds, 543 U.S. 1101, 125 S. Ct. 1021 (2005).
Apart from whether various co-conspirators were operating in
Indiana or across the river in Louisville, there was nothing
distinguishing the nature of their activities or dividing them
from other conspirators. This was a single conspiracy engaging
in a common aim of distributing heroin, cocaine, and metham-
phetamine in the greater Louisville area, and it would have
come as no surprise to Brasher that some dealers were traffick-
10 No. 18-1997
ing on the Indiana side of the river. As a conspirator, Brasher
may be said to have conspired with those dealers operating in
Indiana even if he never set foot there on conspiracy business.
For these reasons, the evidence was sufficient to establish
Brasher’s knowing participation in the conspiracy as charged,
one reaching into the Southern District of Indiana. There was
no fatal variance between the proof at trial and the conspiracy
alleged in the superseding indictment.
B. Constructive amendment of the indictment.
In what is largely a reprise of his variance argument,
Brasher also contends that the evidence at trial constructively
amended the indictment by establishing a conspiracy different
from the one charged, thus inviting the jury to convict him for
an offense outside the scope of the indictment returned by the
grand jury. See United States v. Cusimano, 148 F.3d 824, 829 (7th
Cir. 1998). Because Brasher first raised this issue in a post-trial
motion, our review is for plain error only. United States v.
Hughes, 213 F.3d 323, 328 & nn. 7–8 (7th Cir.), j. vacated on other
grounds, 531 U.S. 975, 121 S. Ct. 423 (2000). Judge Pratt rejected
Brasher’s argument for the same reasons she found the
evidence sufficient to sustain Brasher’s conviction for conspir-
acy, and she was correct to do so.
As discussed above, the evidence readily supports the
notion that Brasher, as charged, conspired with the other
defendants to distribute drugs in the Louisville metropolitan
area, including those portions of the metropolitan areas on the
Indiana side of the Ohio river. Any error in that regard surely
was not plain.
No. 18-1997 11
C. Batson claim.
Brasher renews his contention that the government exer-
cised its peremptory challenges on the basis of race to strike
two of the three African American members of the venire, in
violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712
(1986), with the result that his jury included only one African
American juror. Brasher did not raise his Batson claim until
after the jury was seated and sworn and the venire dismissed,
which, as he concedes, was late. See United States v. Williams,
819 F.3d 1026, 1029 (7th Cir. 2016) (“the dismissal of the venire
or the swearing of the jury is the presumptive deadline for
making Batson challenges”). The district judge nonetheless
chose to treat the claim as preserved and, after a brief hearing,
rejected the claim on its merits. We therefore treat the claim as
preserved as well, and review the trial court’s ruling for clear
error. United States v. Yarrington, 640 F.3d 772, 778 (7th Cir.
2011) (citing United States v. McMath, 559 F.3d 657, 663 (7th Cir.
2009)).
Batson calls for a three-step process when the defendant
charges that the prosecution has improperly exercised its
peremptory challenges based on race: (1) the defendant makes
a prima facie case that race was a factor in the government’s
exercise of its peremptory challenges; (2) the prosecution offers
a race-neutral reason for the challenge(s) in question; and
(3) the court considers whether the prosecution’s stated non-
discriminatory rationale is pretextual. Foster v. Chatman, 136
S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552 U.S.
472, 476–77, 128 S. Ct. 1203, 1207 (2008)). The parties’ dispute
in this case focuses on the third step of the process—pretext.
12 No. 18-1997
The government explained below that it struck the two
African American venire members, Ms. W. and Mr. H., because
Ms. W.’s brother had been charged (and acquitted) of a drug
offense, and Mr. H. had been convicted of a misdemeanor drug
offense. There is no question that this is a valid, non-discrimi-
natory rationale for striking prospective jurors. See United
States v. Lampkins, 47 F.3d 175, 178 (7th Cir. 1995) (“a prosecu-
tor may permissibly strike a prospective juror on the grounds
that close friends or relatives have been convicted of the very
crime at issue”) (collecting cases). But Brasher argued that this
non-discriminatory rationale was pretextual, in view of the fact
that the government had not used one of its remaining pe-
remptory challenges to strike Mr. M., whose brother had been
convicted of a narcotics trafficking offense. In reply, the
government acknowledged that it had accepted Mr. M., but
pointed out that it had also used a peremptory challenge to
excuse another white juror, Mr. K., who also had a brother who
had pleaded guilty to and was at that time incarcerated for a
drug offense.
Weighing the parties’ submissions, the district court
credited the government’s explanation for its strikes and
rejected Brasher’s Batson challenge:
[T]here’s no evidence before the Court, or no
argument even, that the exclusions were race
based, so the Court is going to find that the
government’s explanations are acceptable
and that they—the government’s offered
nondiscriminatory reasons for striking both
Ms. [W.] and Mr. [H.].
No. 18-1997 13
Rawle 887 at 24. The court reiterated its finding when it denied
Brasher’s subsequent motion for a new trial, describing the
government’s reasons for striking the two African American
venire members and one white venire member as “non-
discriminatory, reasonable, and credible, considering the
charges before the jury.” R. 828 at 13.
Brasher contends that the district court’s finding was
clearly erroneous, given that the government did not use its
proffered rationale to excuse Mr. M. Indeed, in crediting the
government’s explanation for striking Ms. W. and Mr. H., the
court did not explicitly address the government’s failure to
strike Mr. M and reconcile it with the government’s proffered
rationale for striking the African American jurors.
Before we entertain the merits of the district court’s ruling,
we must first consider whether the court committed a proce-
dural error in its handling of the Batson claim. Our two
published opinions in the Taylor case make clear that in
addressing the strikes of multiple prospective jurors, a district
court must take care to analyze each such juror individually,
and in particular to evaluate the plausibility and credibility of
the government’s proffered rationale for each strike in light of
the individual juror’s characteristics and circumstances. United
States v. Taylor, 509 F.3d 839 (7th Cir. 2007) (“Taylor I”); United
States v. Taylor, 636 F.3d 901 (7th Cir. 2011) (“Taylor II”); see also
United States v. Taylor, 277 F. App’x 610 (7th Cir. 2008) (non-
precedential decision). Taylor was a capital case in which the
defendants were charged with, inter alia, Hobbs Act robbery
and the commission of a murder in the course of that robbery.
The defense objected to the government’s use of peremptory
challenges to exclude two African American members of the
14 No. 18-1997
venire from the jury, Ms. W. and Ms. G. The objections were
addressed collectively, and in the process of overruling them,
the district court neglected to specifically consider and resolve
the strike of Ms. W. The government had given the same
general rationale for the two strikes (statements that the
panelists had given during voir dire expressing a reluctance to
impose the death penalty on an individual who had not
himself shot the victim), but the credibility of that rationale
turned on the specific answers each of the two African Ameri-
can panelists had given in response to questions by both
government and defense counsel. And when all of the relevant
questions posed to and answered by Ms. W. were examined,
it became obvious that her views on the death penalty were
comparable to those of a white panelist whom the government
had not stricken from the jury. Because the district court had
never addressed Ms. W. individually, let alone attempted to
reconcile her similarities with the seated white juror, we found
it necessary to remand the case to give the district court the
opportunity to supplement the record with its findings as to
whether the government’s stated rationale for striking Ms. W.
was credible or whether the defense had met its burden of
demonstrating that the strike was discriminatory. On remand,
the district court conducted a hearing and again rejected the
defendant’s Batson challenge. Ultimately, we reversed, con-
cluding that the rationale the government had articulated at
trial for excluding Ms. W. did not hold up to scrutiny in view
of her material similarities to the seated white juror vis-a-vis
the death penalty. See Taylor I, 509 F.3d at 844–46; Taylor II, 636
F.3d at 905–06. The government had attempted to justify
striking her after the fact with a different rationale, but we
No. 18-1997 15
declined to consider that rationale precisely because it was not
put before the district court during voir dire when the Batson
challenge was made. Id.
Brasher initially cited our opinion in Taylor II for the point
we just mentioned: that in evaluating the credibility of the
rationale for the exclusion of a prospective juror, a court must
ignore post hoc rationales never advanced when the striking of
the juror was challenged under Batson. But in the give and take
of oral argument on Brasher’s Batson claim, Brasher’s counsel
expanded his argument to posit that the district court here, as
in Taylor, failed in the first instance to address each of the
excluded African American jurors individually and to reconcile
the government’s rationale for the exclusion in light of their
individual circumstances.
We agree with Brasher that the district court’s Batson
findings would be clearer and stronger had the district court
expressly addressed the evident inconsistency between the
government’s stated reason for excluding the two African
American venire members and its decision not to exclude Mr.
M, who like them had a close family member who had been
tried on a narcotics charge. We take the opportunity to reiterate
that when one or more peremptory challenges are challenged
under Batson, the district court’s analysis should (a) address
each excluded juror individually in light of all of the material
circumstances, including similarities between the excluded
juror and seated jurors, and (b) expressly resolve any argument
as to why the proffered rationale for excluding the juror is
pretextual. But apart from the omission to do so here, this case
is materially different from Taylor, and we are not convinced
that a remand is necessary as it was in Taylor.
16 No. 18-1997
First, although Brasher challenged the exclusion of multiple
jurors and the district court addressed the excluded jurors
collectively rather than individually, just as in Taylor, this case
does not present the same need for juror-specific factual
development that Taylor did. In Taylor, it was necessary to
consider in full the answers touching upon the death penalty
that each of the excluded jurors had given during voir dire and
to compare them with the answers given by a white juror as to
whom the government had not exercised a peremptory
challenge. In this case, the material facts concerning both the
excluded and seated jurors were both known to the district
court and straightforward: Ms. W. and Mr. H., who were
African American, in one instance had a close family member
who had been charged with a narcotics offense and in the
second instance had been convicted of such an offense himself.
According to the government, they were both excluded from
the jury on that basis, as was a white member of the venire, Mr.
K, whose brother had been convicted on a drug charge. But
Mr. M., another white member of the venire whose brother had
been convicted of narcotics trafficking, was not excluded.
These facts were fully aired before the district court, and the
court (twice) rejected the notion that the government’s expla-
nation for striking Ms. W. and Mr. H. was pretextual in view
of the fact that it did not strike Mr. M.
The only thing missing from the district court’s findings, as
we have said, is a statement as to why the court was not
persuaded that the government’s acceptance of Mr. M. onto the
jury did not bespeak pretext. We could remand for that limited
purpose, but we are not persuaded that step is necessary.
No. 18-1997 17
There can be no doubt that the district court understood the
basis for Brasher’s pretext argument: Brasher’s counsel made
that clear at the time of the Batson hearing (R. 887 at 22–23);
and the government’s counsel both expressly acknowledged
not challenging Mr. M. while adding that the government had
excluded Mr. K. (R. 887 at 223). And in denying Brasher’s
motion for a new trial, the court expressly acknowledged that
it was the seating of Mr. M. that was the basis for Brasher’s
pretext argument. R. 828 at 10, 12. So we have no ground on
which to suspect that the district court overlooked and failed
to consider pretext.
In short, the pertinent facts were developed and considered
by the district court. What remains is for us to consider
whether, in light of these facts, the district court committed
clear error in finding that the government’s exclusion of the
two African American jurors was motivated by the non-
discriminatory rationale it articulated to the court rather than
their race.
In defense of the district court’s ruling (and the propriety
of the exercise of its peremptory challenges), the government
argues that Mr. M. was different from the stricken jurors in the
sense that he had disowned his brother once he learned that he
was engaged in narcotics trafficking. See R. 864 at 82–83. That
revelation—elicited by defense counsel during voir dire in
follow-up questioning of Mr. M.—gave the government reason
to believe that Mr. M. would not be sympathetic to Brasher’s
defense, or hostile to the government’s case, notwithstanding
the similar charges levied against Mr. M’s brother.
18 No. 18-1997
The problem with this explanation is that it was not voiced
in the district court and instead was articulated for the first
time on appeal. Brasher rightly argues, that the validity of the
government’s challenged peremptory challenges must stand or
fall on the reasons provided to the district court during the
Batson inquiry. See Miller-El v. Dretke, 545 U.S. 231, 246, 252, 125
S. Ct. 2317, 2328, 2332 (2005); Taylor II, 636 F.3d at 906. The
government defends its after-the-fact rationale regarding Mr.
M. by suggesting that Batson requires it only to explain its
decision to strike a given juror rather than its decision not to
strike another. We are not persuaded. It is true, of course, that
it is the decision to strike a potential juror based on race that is
prohibited by Batson, but the characteristics of venire members
that a party chooses not to strike frequently shed light on the
veracity of the party’s proffered explanations for the use of its
peremptory challenges. See Miller-El, 545 U.S. at 241, 125 S. Ct.
at 2325 (“If a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar non black
who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third
step.”); Flowers v. Mississippi, 139 S. Ct. 2228, 2248 (2019)
(“Comparing prospective jurors who were struck and not stuck
can be an important step in determining whether a Batson
violation occurred.”); Taylor II, 636 F.3d at 905–06; Mahaffey v.
Page, 162 F.3d 481, 485–86 (7th Cir. 1998); see also Snyder v.
Louisiana, supra, 552 U.S. at 478, 483–84, 128 S. Ct. at 1208,
1211–12. Mr. M., like Ms. W. and Mr. H., had a family member
who was charged with a drug offense, but rather than using a
peremptory challenge to strike Mr. M as it had Ms. W. and Mr.
H, the government allowed him to be seated on the jury. So in
No. 18-1997 19
defending its decision to strike Ms. W. and Mr. H., the govern-
ment was required to offer a timely explanation not only for its
decision to strike the two African American venire members,
but also for its decision not to strike Mr. M., a white member of
the venire who otherwise appears to have been similarly
situated with the excluded African American panelists.
Because it did not do so, we put aside the government’s
belated explanation.2
Nonetheless, focusing on evidence and arguments that
were before the district court, we find no clear error in the
court’s decision to credit the government’s stated non-discrimi-
natory rationale for using its peremptories to strike Ms. W. and
Mr. H. By itself, the fact that the government chose to allow a
white venire member to be seated on the jury despite a prior
drug charge against a family member tends to suggest that the
government’s stated rationale for striking Ms. W. and Mr. H.
was not its true reason. E.g., Miller-El, 545 U.S. at 241, 125 S. Ct.
at 2325–26. But this was not the whole of the evidence before
the district court. As the government pointed out below, it had
also stricken a white venire member, Mr. K., based on a drug
charge to which his brother had pleaded guilty; and Brasher
has not challenged that this was in fact the reason Mr. K. was
2
Certainly the facts underlying the government’s belated rationale were
before the district judge, who had presided over the voir dire, and these
facts theoretically could have informed the judge’s decision that the
government did not exercise its peremptory challenges in a discriminatory
manner. But because this rationale was not argued to the district court, and
the court did not independently raise it in either of its two decisions
rejecting Brasher’s Batson challenge, we can only assume that these facts did
not influence the court’s decision-making.
20 No. 18-1997
stricken. So this was not a rationale that the government used
solely to exclude African American individuals from the jury.3
Moreover, the government did not use its peremptory chal-
lenges to exclude all African American persons on the venire:
One African American person was seated on the jury despite
the fact that the government had peremptory challenges left to
exercise, resulting in a jury that was consistent with the
demographics of the New Albany Division of the Southern
District of Indiana (where the case was tried), which has a
relatively small African American population. See United States
v. White, 582 F.3d 787, 802 (7th Cir. 2009) (sustaining denial of
Batson challenge where proffered non-discriminatory rationale
was used to strike both white and African American jurors,
one African American was seated on jury, government did not
use all of its peremptory challenges, and government had
proposed seating African American panelist as alternate);
United States v. Hendrix, 509 F.3d 362, 370–71 (7th Cir. 2007)
(sustaining denial of Batson challenge where use of proffered
rationale to exclude a white panelist as well as an African
3
The government represents on appeal that it excluded a second white
juror, Mr. B., whose uncle had a drug conviction, on the same basis. See
R. 864 at 31, 67. The government did not point this out to the district court
below (although the prosecutor may have had Mr. B. in mind when he
professed confusion as to whether it was Mr. K.’s uncle or brother who had
a narcotics conviction, see R. 887 at 22), and the court itself never mentioned
Mr. K., so presumably it did not factor into the district court’s rationale in
rejecting Brasher’s Batson challenge. Brasher does not contest that Mr. B was
excluded on this basis, however, and the government’s use of a peremptory
challenge as to Mr. B. lends further support to the notion that the govern-
ment’s use of its peremptory challenges was not animated by the race of the
stricken jurors.
No. 18-1997 21
American panelist “further illuminates the non-discriminatory
nature of the prosecution’s strikes and erodes notions of
pretext in the prosecution’s motive for the strikes”); United
States v. Griffin, 194 F.3d 808, 826 n.9 (7th Cir. 1999) (“the fact
that the Government did not challenge the other black juror
further ‘weaken[s] the argument that the Government’s strikes
were based on a motive to discriminate’”) (quoting United
States v. Hughes, 970 F.2d 227, 232 (7th Cir. 1992)); cf. Mahaffey,
162 F.3d at 484–86 (noting that where prosecution had used its
peremptory challenges to exclude all seven African American
members of venire, it was wrong to emphasize fact that
particular rationale offered to explain those strikes was also
used to strike white panelists while ignoring fact that same
rationale applied equally to other white panelists who were
seated on jury).
In evaluating whether the prosecution’s stated rationale for
striking the two African American jurors was genuine, the
district court was required to consider the totality of the
circumstances. Snyder, 552 U.S. at 478, 483–84, 128 S. Ct. at
1208, 1211–12. Here, there were objective facts that were both
inconsistent and consistent with the government’s race-neutral
explanation. And, to some extent, the court’s evaluation of
pretext depended on intangible signs of the prosecutor’s
candor. “[E]valuation of the prosecutor's state of mind based
on demeanor and credibility lies ‘peculiarly within a trial
judge's province.’” Hernandez v. New York, 500 U.S. 352, 365,
111 S. Ct. 1859, 1869 (1991) (quoting Wainwright v. Witt, 469
U.S. 412, 428, 105 S. Ct. 844, 854 (1985)). As we noted at the
outset of this discussion, the district court in this case expressly
found the prosecutor’s proffered rationale for excluding Ms.
22 No. 18-1997
W. and Mr. H. to be “non-discriminatory, reasonable, and
credible.” R. 828 at 13 (emphasis ours).
Given the deference we owe the district court on this
question, see Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n. 21,
we cannot say that the court clearly erred in giving credence to
the government and finding that its stated reason for striking
Ms. W. and Mr. H. was not pretextual. Certainly it is possible
that a different judge might have reached a different conclu-
sion based on the facts we have highlighted. But that possibil-
ity alone does not demonstrate that there was clear error
infecting the court’s resolution of the Batson objection. See
United States v. Nat’l Ass’n of Real Estate Bds., 339 U.S. 485, 495,
70 S. Ct. 711, 717 (1950); United States v. Stephens, 514 F.3d 703,
712 (7th Cir. 2008) (quoting United States v. Mendoza, 457 F.3d
726, 729 (7th Cir. 2006)). Based on the evidence before the
district court, we are not “left with the definite and firm
conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948).
D. Improper remarks in closing argument.
Brasher faults the government for making two categories of
improper remarks in closing argument: (1) vouching for the
credibility of its own witnesses; and (2) appealing to regional
prejudice. Because Brasher did not object to the remarks at the
time, our review is for plain error only. E.g., United States v.
Chaparro, 956 F.3d 462, 484 (7th Cir. 2020). The remarks at issue
here were relatively innocuous, and we are not convinced they
amount to prosecutorial misconduct, let alone an obvious
manifestation of misconduct, and certainly not wrongdoing
No. 18-1997 23
raising the prospect that Brasher was denied a fair trial. See id.
(laying out the elements of plain error).
The prosecutor did not vouch for the credibility of its
witnesses. “Impermissible vouching occurs when a prosecutor
expresses her personal belief in the truthfulness of a witness,
or when a prosecutor implies that facts not in evidence lend to
a witness’s credibility.” United States v. Jones, 889 F.3d 876, 881
(7th Cir. 2018) (citing United States v. Wolfe, 701 F.3d 1206, 1212
(7th Cir. 2012)). In a portion of his closing argument addressing
the testimony of Brasher’s co-defendants, who had opted to
plead guilty and cooperate with the government, the prosecu-
tor asserted:
I think you can be confident that their testi-
mony was truthful, because it was consistent.
Everything they said was internally consis-
tent with each other, but it also reinforced
exactly what you heard in wire transcripts,
intercepts that took place in this case, court-
authorized wire intercepts.
R. 890 at 837. He went on to discuss what the recorded conver-
sations showed. And he later emphasized in rebuttal that
although the cooperating witnesses were hoping to benefit
from their testimony, they had to be truthful in order to do so.
R. 890 at 863. This is standard fare in addressing the credibility
questions posed by cooperating witnesses and does not
constitute vouching. The argument was grounded in the
evidence before the jury, and at no time did the prosecutor
claim personal knowledge of the witnesses’ veracity or imply
24 No. 18-1997
that evidence outside of the trial record confirmed their
credibility, which is the sort of vouching that is proscribed.
As for the purported appeal to regional bias, what the
government’s counsel did was invite jurors, as they evaluated
the evidence presented in the case, to use their common sense,
which counsel suggested “we Hoosiers really seem to have
more than most other folks.” R. 890 at 865. We do not take this
to be an implicit attack on Kentuckians like himself, as Brasher
seems to have construed it. The remark may reflect some bias
in favor of Hoosiers, but again, it is relatively innocuous as
these sorts of remarks go. Cf. United States v. Durham, 211 F.3d
437, 441–42 (7th Cir. 2000) (appeal to jurors’ “good Midwestern
common sense” did not constitute misconduct). Certainly it
did not unduly prejudice Brasher.
E. Procedural error with respect to section 851 notice of prior
conviction.
As we noted at the outset, Brasher was subject to an
enhanced statutory sentence of life as a result of his prior
felony narcotics convictions which were disclosed prior to the
trial in two section 851 notices filed by the government. See
§ 841(b)(1)(A) (2016) & n. 1, supra. The conviction referenced in
the first information was a conviction Brasher incurred in 2000,
based on drug trafficking activity that took place in 1998, when
Brasher was 17. (He was tried as an adult.) At the sentencing
hearing, Brasher argued for the first time that he was not the
person identified in the records of that conviction. R. 878 at
56–57, 85. See United States v. Arango-Montoya, 61 F.3d 1331,
1339 (7th Cir. 1995) (per curiam) (“it is always possible that the
government was mistaken and there was no prior conviction,
No. 18-1997 25
or that the facts alleged in the government’s information of
prior conviction are incorrect”). He made a similar challenge
to the 2013 convictions identified in the second section 851
notice, which the district court rejected on the merits. R. 878 at
89, 131. But the court did not reach the merits of his objection
to the 2000 conviction, reasoning that because the conviction
was more than five years old, Brasher could not deny the
existence of the conviction. R. 878 at 84–85. See § 851(e).4 In
actuality, Brasher was barred only from challenging the
validity of the conviction, which is not the objection he presses
here. See Arreola-Castillo v. United States, 889 F.3d 378, 385–90
(7th Cir. 2018). So the district court erred in this regard. Section
851 left Brasher free to challenge whether he was the individ-
ual convicted. Id.
There is a real question, nonetheless, whether Brasher
waived this issue. Brasher never contested the existence of this
conviction in writing, see § 851(c)(1) (defendant to file “written
response” to government’s § 851 information; district court
shall thereafter hold hearing to determine any issues raised by
response); Arreola-Castillo, 889 F.3d at 384–85; and more to the
point, the written objections he did file to the section 851
enhancement were silent on this point. R. 836. See § 851(d)(1)
(“[i]f the person files no response to the information … the
court shall proceed to impose sentence upon him as provided
4
The court did instruct the government, following the sentencing, to verify
the 2000 conviction through a check of Brasher’s fingerprints and advise the
court if there was a discrepancy suggesting that Brasher was not the
individual convicted. R. 873 at 61, 121. The record does not reveal the
outcome of any such inquiry.
26 No. 18-1997
by this part”).5 Indeed, Brasher’s sentencing memorandum
acknowledged and, seemingly, accepted, the 2000 conviction
as part of his criminal history. R. 833 at 7, 20. As a result, both
the court and the government, with no advance warning that
Brasher intended to contest the existence of this or any other
prior conviction, were forced to address Brasher’s objections on
the fly, without the opportunity to make as complete of a
record on the issue as they otherwise might have done.6 It is
Brasher who emphasizes that the government, in the face of his
objection, was required to prove the existence of his conviction
beyond a reasonable doubt, see § 851(c)(1); Arreola-Castillo, 889
F.3d at 704, and yet, ironically, it was his own tardiness in
voicing the objection that interfered with the government’s
ability to meet his challenge. Under these circumstances, his
failure to object until the sentencing hearing was underway at
the least resulted in a forfeiture, in the same way that a defen-
dant’s failure to raise a contention that he was deprived of his
constitutional rights or that a trial error occurred at a time
when the objection could be fully addressed and, if necessary,
5
The statute also requires a “timely challenge” to the government’s
information. § 851(c)(2). We have not yet decided whether the timeliness
requirement applies to any and all challenges under section 851, including
challenges to the existence of a prior conviction, although we have
acknowledged that other circuits have answered this question in the
affirmative, with the consequence that such challenges can be waived. See
United States v. Webster, 628 F.3d 343, 345 (7th Cir. 2010) (per curiam)
(collecting cases).
6
The government was able to locate a police sergeant from Louisville who
was able to identify Brasher in court as the person charged and convicted
in 2013.
No. 18-1997 27
rectified, is routinely deemed to forfeit the objection. See
generally Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660,
677 (1944) (“[n]o procedural principle is more familiar to this
Court than that a constitutional right may be forfeited in
criminal as well as civil cases by the failure to make a timely
assertion of the right …”); Puckett v. United States, 556 U.S. 129,
134, 129 S. Ct. 1423, 1428 (2009) (“[t]his limitation of appellate-
court authority [resulting from forfeiture of an objection]
serves to induce the timely raising of claims and objections,
which gives the district court the opportunity to consider and
resolve them”); see also, e.g., United States v. Barber, 937 F.3d 965,
971 (7th Cir. 2019) (forfeiture of Fourth Amendment claim);
United States v. Pankow, 884 F.3d 785, 790–91 (7th Cir. 2018)
(forfeiture of sentencing issue); United States v. Irby, 558 F.3d
651, 655 (7th Cir. 2009) (forfeiture of Confrontation Clause
objection to confidential informant’s out-of-court statements);
United States v. Jenkins, 772 F.3d 1092, 1096–97 (7th Cir. 2014)
(forfeiture of objection to criminal history calculation). We
therefore confine our review to one for plain error.
The district court’s error was not plain in the sense that
Brasher’s substantial rights were affected, see Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904–05 (2018) (articulating
elements of plain error in sentencing context), as there can be
no real doubt that Brasher was the individual convicted in
2000. In support of the section 851 enhancement, the govern-
ment presented certified records of the 2000 conviction as well
as the 2013 convictions (which Brasher does not challenge
here). Brasher nonetheless faults the government for failing to
produce a booking photograph, fingerprint, or other evidence
in order to prove, beyond a reasonable doubt, that he was in
28 No. 18-1997
fact the person convicted in 2000. See § 851(c)(1). But courts
have recognized that certified court records are sufficient to
prove the fact of a defendant’s prior conviction beyond a
reasonable doubt. United States v. Miller, 782 F.3d 793, 800–01
(7th Cir. 2015); Arreola-Castillo, 539 F.3d at 704–05; United States
v. Jones, 700 F.3d 615, 629–30 (1st Cir. 2012) (Ripple, J.). In this
case, the certified records pertaining to the conviction (which
include both the charging document and the judgment of
conviction) collectively reflect Brasher’s name, date of birth,
and social security number; and this is not to mention
Brasher’s own acknowledgment of the conviction in his
sentencing memorandum. Looking at this evidence in the light
most favorable to the government, a rational factfinder could
readily and reasonably find beyond a reasonable doubt that
Brasher was the individual convicted. See generally Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). At no
time, either below or on appeal, has Brasher identified any-
thing which, in spite of the record evidence indicating that
Brasher was the subject of the 2000 conviction, suggests that he
was not in fact the individual convicted. He has not established
plain error. See Chaparro, supra, 956 F.3d at 468 (forfeited claim
regarding sufficiency of evidence is reviewed for manifest
miscarriage of justice, which requires showing that record is
devoid of evidence of guilt or that evidence as to key element
of offense is so tenuous that conviction would be shocking).
F. Violation of 18 U.S.C. § 2517(5) by using wiretap discussions of
murder at trial and sentencing without judicial approval.
During the investigatory phase of this case, the district
court had authorized Title III electronic surveillance of multi-
ple individuals’ phones for the stated purpose of gathering
No. 18-1997 29
evidence of narcotics trafficking. Pursuant to 18 U.S.C.
§ 2517(3) and (5), the government was authorized to introduce
the results of that surveillance into evidence at trial and at
sentencing insofar as the recordings related to the charged
narcotics conspiracy; but use of the recordings to establish an
unrelated crime required further court approval. See United
States v. Brodson, 528 F.2d 214, 215–16 (7th Cir. 1975). In the
course of the approved surveillance of phone calls between
Brasher and Shelton, the government intercepted conversations
relating to the murder of another customer/dealer of Shelton’s
with a large outstanding drug debt. Shelton recruited Brasher
to arrange the killing of that individual in order to set an
example that would frighten his other customers (several of
whom were likewise delinquent) into timely payment of their
debts to him. The government introduced evidence of these
conversations at sentencing in aggravation. And although the
government did not play any of these recorded discussions of
murder for the jury at trial, the jury was given a transcript of
a conversation from which the references to the murder were
not redacted as they should have been. Because the govern-
ment never asked the court for authorization to introduce
evidence of the murder discussions, Brasher contends that the
government violated section 2517 to his undue prejudice.
With respect to the unredacted transcript given to the jury,
any error was surely harmless. The reference to the murder in
that transcript was so coded as to be undecipherable absent
additional testimony illuminating what the discussion was
concerning.
As to the use of the recorded conversation(s) at sentencing,
we are not convinced that prior authorization was required
30 No. 18-1997
before the recording could be used. The execution of the
delinquent drug dealer was part and parcel of Shelton’s
narcotics trafficking organization. Shelton ordered the hit in
order to make an example of a deadbeat and thus ensure that
other dealers would timely pay their debts to him. In the same
way that a drug kingpin might order that a rogue subordinate
be beaten or killed in order to maintain discipline within the
organization, Shelton’s order was in furtherance of the drug
conspiracy. Had the conversations concerned an offense that
pre-dated or was unrelated to the aims and business of the
conspiracy, Brasher might have a point. But Brasher’s willing-
ness to plan and execute a murder of a fellow dealer on
Shelton’s behalf was in service of the charged drug trafficking
enterprise, and as a matter of sentencing it was highly relevant
in assessing his culpability as a participant in that enterprise.
Cf. United States v. Nicksion, 628 F.3d 368, 374 (7th Cir. 2010)
(statements by co-conspirator confessing to murder committed
when he and defendant were attempting to collect drug debt
were admissible pursuant to Fed. R. Evid. 801(d)(2)(E) as
statements made in furtherance of conspiracy).
III.
For all of the reasons given, we reject Brasher’s claims of
error and affirm his conviction and sentence.
AFFIRMED