United States v. Demettris Cruse

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-2929, 13-3008 & 14-2297
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEMETTRIS CRUSE, DANIEL MCCLAIN,
and CHARLES HENDERSON,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 11-Cr-191 — Rudolph T. Randa, Judge.
____________________
ARGUED NOVEMBER 12, 2014 — DECIDED NOVEMBER 3, 2015
____________________
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Demettris Cruse, Daniel McClain,
Charles Henderson, and eight others were indicted for their
involvement in a long-running conspiracy to distribute
controlled substances in Milwaukee. The indictment cen-
tered on the activities of two street gangs that controlled the
crack-cocaine trade in adjacent neighborhoods on the city’s
northwest side. The eight coconspirators not party to this
2 Nos. 13-2929, 13-3008 & 14-2297
appeal pleaded guilty and agreed to cooperate with the
government.
Henderson also negotiated a plea bargain. He agreed to
plead guilty to the conspiracy charge but only to a subset of
the drugs listed in the indictment (that is, crack and mariju-
ana but not powder cocaine). In exchange the government
would recommend the mandatory minimum sentence.
Henderson pleaded guilty pursuant to this agreement and
the court imposed the recommended sentence. But the
government neglected to file an information narrowing the
charged drug types as contemplated by the plea agreement.
Henderson argues that this mistake undermines the validity
of his plea. We disagree. Henderson understood the charge
against him and the possible penalty, and the judgment
conforms precisely to the terms of the agreement. We see no
reason to unwind the plea.
A jury found Cruse and McClain guilty. They argue that
the trial was contaminated by a host of errors: two Batson
violations, improperly admitted hearsay, and two faulty jury
instructions (one about the distinction between a buyer-
seller relationship and a conspiracy, and the other about the
scope of coconspirator liability). McClain also claims that the
evidence was insufficient to convict him. Only one of these
arguments merits relief, and only with respect to one de-
fendant: the absence of a buyer-seller instruction violated
Cruse’s right to a fair trial, so we vacate his conviction and
remand for retrial. The judgments against Henderson and
McClain are affirmed.
Nos. 13-2929, 13-3008 & 14-2297 3
I. Background
By the mid-1990s, two gangs controlled the drug trade in
and near the Westlawn housing project on Milwaukee’s
northwest side. The Westlawn gang operated in the housing
project itself, and Six Trey controlled the territory in the
nearby neighborhood around the intersection of 63rd Street
and West Bobolink Avenue. The two gangs operated just a
few blocks apart and were generally—though not always—
on friendly terms.
Both gangs operated similarly. Six Trey’s membership
consisted primarily of people who had grown up together
near 63rd and Bobolink. The gang had no formal structure,
but it held meetings during which its members would
discuss who would sell drugs and also mete out punishment
(usually in the form of beatings) to those who broke the
gang’s norms against cheating and stealing. Six Trey also
maintained tight control over its territory; if an outsider
encroached and tried to sell drugs, Six Trey members would
page each other using a distress code, and when reinforce-
ments arrived, they’d beat and rob the intruder. The benefits
of membership included money, protection from rival gangs,
and the ability to sell drugs in Six Trey’s territory.
Most of Westlawn’s members had also known each other
since childhood (“we was all like brothers,” according to one
Westlawn member). The gang had no formal leadership
hierarchy, but different members had different roles, such as
supplying drugs, delivering drugs, providing security, and
organizing gambling. Outsiders were robbed and beaten if
they tried to sell drugs in Westlawn’s territory. The benefits
of membership included protection, access to drugs, tips
about police activity, and the assurance that members
4 Nos. 13-2929, 13-3008 & 14-2297
wouldn’t snitch on one another (though it was acceptable to
cooperate with the police on non-gang-related matters). The
gang also gave its members things like shoes and TVs, and
supplied money to incarcerated members.
The Drug Enforcement Administration (“DEA”) began
investigating Westlawn and Six Trey in 2004. In 2009,
18 gang members were indicted on drug-conspiracy charges.
Two years later on September 7, 2011, a federal grand jury
returned a second indictment against 11 additional gang
members, including Cruse, McClain, and Henderson. This
indictment alleged a single count of conspiracy to possess
with intent to distribute and to distribute controlled sub-
stances in violation of 21 U.S.C. §§ 841(a)(1) and 846. The
indictment also alleged that the offense involved at least
5 kilograms of powder cocaine, 280 grams of crack cocaine,
and an unspecified amount of marijuana. The charged
quantities of powder and crack cocaine were each inde-
pendently sufficient to trigger a ten-year mandatory mini-
mum sentence. See id. § 841(b)(1)(A)(ii)–(iii).
The eight coconspirators not party to this appeal pleaded
guilty and agreed to cooperate with the government. Hen-
derson, a relatively low-level crack dealer affiliated with
Westlawn, also pleaded guilty. On appeal he challenges the
validity of his plea; we’ll provide the relevant background
for his argument later in this opinion.
The case against Cruse and McClain proceeded to jury
trial. The government’s case rested primarily on the testimo-
ny of seven cooperating gang members: Shywan Mathis,
Willie Mohomes, Michael Riley, Aaron Seymore, and Corey
Winters, all of whom self-identified as members of
Westlawn; Kendall Burton, a member of Six Trey who also
Nos. 13-2929, 13-3008 & 14-2297 5
sold drugs in Westlawn; and Kenyounta Harvester, who
didn’t consider himself a member of either gang but sold
large quantities of drugs to their members. All of these
witnesses except Mathis and Harvester were charged in the
2009 indictment and pleaded guilty. Mathis was charged in
the 2011 indictment (along with Cruse and McClain) and
pleaded guilty. Harvester pleaded guilty to a separate con-
spiracy charge.
The witnesses described Cruse as a mid-level dealer who
worked in Westlawn and McClain as a member of Six Trey
and a high-level supplier of drugs in both the Six Trey and
Westlawn territories. The jury found both guilty and in a
special verdict found that the conspiracy involved at least
5 kilograms of powder cocaine or 280 grams of crack. Cruse
was sentenced to 240 months, the mandatory minimum.
McClain was sentenced to 252 months.
II. Discussion
Henderson asks us to vacate his conviction and remand
to permit him to withdraw his guilty plea. McClain and
Cruse raise several common claims of trial error and a few
individual arguments as well. We’ll begin with Henderson’s
appeal and then move to the arguments raised by McClain
and Cruse.
A. Henderson’s Appeal
For about ten years prior to his arrest, Henderson sold
drugs in Westlawn, mostly “dime bags” ($10 packets) of
crack cocaine. In a written plea agreement, Henderson
agreed to plead guilty to the conspiracy charge, but only
with respect to two of the three drug types alleged in the
indictment. He would admit to conspiring to distribute at
6 Nos. 13-2929, 13-3008 & 14-2297
least 280 grams of crack and an indeterminate amount of
marijuana, but not powder cocaine.
To implement this agreement, the government agreed to
file an information identical to the September 2011 indict-
ment except that it would eliminate the reference to 5 kilo-
grams of powder cocaine. In exchange for Henderson’s
guilty plea, the government agreed to recommend the ten-
year minimum sentence required by § 841(b)(1)(A) and
oppose any guidelines sentence enhancements, most notably
a two-level increase for Henderson’s possession of a firearm.
See U.S.S.G. § 2D1.1(b)(1) (2011).
Henderson pleaded guilty pursuant to this agreement,
and at sentencing the judge accepted the government’s
recommendation and imposed the minimum sentence of ten
years. The judge also granted the government’s motion to
dismiss the September 2011 indictment. Before the court
entered judgment, however, the parties discovered that the
prosecutor had neglected to file an information narrowing
the charged drug types as contemplated by the plea agree-
ment. Henderson moved to withdraw his guilty plea. Alter-
natively, he sought specific performance of the plea agree-
ment.
The judge declined to allow plea withdrawal, noting that
a guilty plea generally may not be withdrawn after sentence
is imposed. See FED. R. CRIM. P. 11(e) (“After the court impos-
es sentence, the defendant may not withdraw a plea of guilty
or nolo contendere, and the plea may be set aside only on
direct appeal or collateral attack.”). Although the court had
not yet entered judgment, “[o]ral pronouncement of the
sentence triggers the bar” under Rule 11(e), United States v.
Nos. 13-2929, 13-3008 & 14-2297 7
Vinyard, 539 F.3d 589, 595 (7th Cir. 2008), so the judge con-
cluded that he could not set aside the plea.
Instead, to remedy the obvious mistake, the judge vacat-
ed the dismissal of the original indictment and ordered the
clerk to enter judgment adjudicating Henderson guilty of
conspiracy as charged in count one, but only with respect to
280 grams of crack and an unspecified amount of marijuana,
not the 5 kilos of powder cocaine listed in the indictment.
The resulting judgment thus conforms precisely to the terms
of the plea agreement and to Henderson’s guilty plea.
The judge acknowledged that this remedy created a vari-
ance between the indictment and the judgment. A variance
occurs when the proven elements of an offense are “narrow-
er than the full scope of the charge in the sense that the
charge states all and more than what is necessary to identify
the offense and sufficient evidence is not introduced to
support each of the excess allegations.” United States v.
Willoughby, 27 F.3d 263, 265 (7th Cir. 1994). Because “a
prosecutor may elect to proceed on a subset of the allega-
tions in the indictment, proving a conspiracy smaller than
the one alleged,” variances are not inherently problematic.
United States v. Bustamante, 493 F.3d 879, 885 (7th Cir. 2007)
(quotation marks omitted). Rather, a variance only calls a
guilty plea or verdict into question if it prejudiced the de-
fendant, such as by depriving him of fair notice of the charg-
es against him or by creating the risk of double jeopardy. See
id; United States v. Neighbors, 590 F.3d 485, 498 (7th Cir. 2009)
(“[A] conspiracy to distribute crack cocaine is a subset of a
conspiracy to distribute both crack cocaine and powder
cocaine. Therefore, because the defendants had adequate
notice of the government’s allegations and suffered no
8 Nos. 13-2929, 13-3008 & 14-2297
prejudice from this variance, we find that the jury’s verdict
should stand.”).
Henderson does not argue that the variance caused him
any prejudice. 1 After all, the judgment matched the plea
agreement and was fully supported by the facts he admitted
in the agreement and at his change-of-plea hearing. The
upshot is that he got exactly what he’d bargained for—a ten-
year sentence for the crime of conspiring to distribute con-
trolled substances; namely, at least 280 grams of crack and an
unspecified amount of marijuana.
Nonetheless, Henderson argues that the mix-up violated
his right to due process. One basic requirement of due
process is that “a plea of guilty must be intelligent and
voluntary,” Brady v. United States, 397 U.S. 742, 747 n.4 (1970),
and a plea cannot be voluntary “unless the defendant re-
ceived real notice of the true nature of the charge against
him,” Henderson v. Morgan, 426 U.S. 637, 645 (1976) (internal
quotation marks omitted). Although departures from the
plea procedures prescribed in Rule 11 are ordinarily re-
viewed for harmless error, see FED. R. CRIM. P. 11(h), a
“[m]isunderstanding of the nature of the charge … is not
harmless error,” United States v. Bradley, 381 F.3d 641, 647
(7th Cir. 2004).
1 At oral argument Henderson’s attorney suggested that if a future
Congress reduced sentences across the board for prisoners convicted of
selling crack cocaine but denied the reduction to those convicted of
selling powder cocaine, Henderson might be deemed ineligible. But how
could that be? It’s the judgment against Henderson that carries legal
force, and the judgment only refers to crack cocaine and marijuana.
Henderson was not convicted of any crime involving powder cocaine.
Nos. 13-2929, 13-3008 & 14-2297 9
As we’ve noted, under Rule 11(e) the judge’s hands were
tied; he could not entertain Henderson’s motion for plea
withdrawal on the merits. So we resolve the voluntariness
question by reference to the totality of the circumstances, as
in the typical case of a defendant who seeks to withdraw his
plea before sentence is imposed. 2 See United States v. Moussa-
oui, 591 F.3d 263, 278 (4th Cir. 2010) (assessing the voluntari-
ness of the defendant’s plea under the totality of the circum-
stances in a case in which review by the district court was
barred by Rule 11(e)); cf. Bousley v. United States, 523 U.S. 614,
622 (7th Cir. 1998) (noting in the context of habeas review
that a challenge about the petitioner’s intelligent acceptance
of a plea “can be fully and completely addressed on direct
review based on the record created at the plea colloquy”).
The voluntariness of a guilty plea turns on such factors as
the complexity of the charge, the evidence proffered by the
government, the adequacy of the plea colloquy, and the
defendant’s own statements. Bradley, 381 F.3d at 644–45. As a
general matter, Henderson mentions the complexity of
conspiracy law, but he does not seriously argue that he
misunderstood the nature of the conspiracy charge against
him or that his plea colloquy was inadequate. His real
argument, it seems, is that his due-process rights were
violated by virtue of the mutual mistake about the infor-
2 The government suggests that we should review the district court’s
denial of Henderson’s motion for abuse of discretion. But that approach
would not only deny Henderson any review whatsoever of the voluntar-
iness of his plea (since the district court was barred from reviewing it
under Rule 11(e)) but also would contradict the text of Rule 11(e) itself,
which expressly envisions that a guilty plea “may be set aside … on
direct appeal.” FED. R. CRIM. P. 11(e).
10 Nos. 13-2929, 13-3008 & 14-2297
mation, even absent any prejudice. For support he relies
primarily on United States v. Bradley. In that case the defend-
ant was indicted on two counts, one for possession of crack
with the intent to distribute and one for carrying a gun in
relation to that drug-trafficking crime. Id. at 643. Pursuant to
a plea agreement, he pleaded guilty to possessing (without
intent to distribute) marijuana (not crack) and to carrying a
firearm in relation to the crime of marijuana possession. Id.
These departures were not mere inconsequential variances;
they created a host of legal problems that went unnoticed by
the defendant, the government, and the court. Id. at 646–47.
Most importantly, since possession of crack with intent to
deliver was listed in the indictment as the drug-trafficking
predicate for the firearm-possession count, the defendant’s
intent to distribute crack was an essential element of the gun
charge. Id. at 646. The government confessed error. Id. at 644.
We concluded that the mutual mistake and the manifold
confusion it had created meant that the defendant was
entitled to withdraw his plea. Id. at 648.
Here, in contrast, there is no question that Henderson
understood the nature of the conspiracy charge to which he
was pleading guilty and how the facts he admitted related to
that charge. See McCarthy v. United States, 394 U.S. 459, 466
(1969) (“[B]ecause a guilty plea is an admission of all the
elements of a formal criminal charge, it cannot be truly
voluntary unless the defendant possesses an understanding
of the law in relation to the facts.”). Likewise, there cannot
have been any confusion about the minimum and maximum
sentences. As we’ve noted, a person convicted of conspiring
to distribute 280 grams of crack faces the same ten-year
mandatory minimum as a person convicted of conspiring to
distribute both 280 grams of crack cocaine and 5 kilograms of
Nos. 13-2929, 13-3008 & 14-2297 11
powder cocaine. 3 See § 841(b)(1)(A)(vii) (using the conjunc-
tion “or” in the list of drug quantities triggering the ten-year
mandatory minimum). And each would face a maximum
penalty of life. § 841(b)(1)(A).
Accordingly, in notable contrast to Bradley, here there was
no misunderstanding about the substantive elements of the
offense, the agreed factual basis for those elements, or the
applicable penalties. Instead, Henderson wants to use the
government’s inattentiveness as a basis to unwind his plea,
even though he harbored no essential misunderstanding
about the law or the facts. The government’s mistake was
unfortunate, but it did not vitiate the voluntariness of
Henderson’s plea.
B. Batson Challenges
In one of their common arguments on appeal, Cruse and
McClain claim that the government used its peremptory
challenges to dismiss two black jurors based on their race in
violation of the equal-protection rule announced in Batson v.
Kentucky, 476 U.S. 79, 85–86 (1986). To prevail on this claim,
the defendants must show that the government used its
peremptory strikes with discriminatory intent; disparate
impact does not violate the Equal Protection Clause. See
Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality
opinion).
3 The overall quantity and type of drugs would be relevant to the
Sentencing Guidelines recommendation. See U.S.S.G. § 2D1.1 cmt. n.7
(2011). But Henderson’s presentence report only referred to crack cocaine
and marijuana sales. If the government had reneged on its agreement
and asked the court to attribute 5 kilograms of powder cocaine to
Henderson in order to impose a guidelines sentence above the mandato-
ry minimum, this would be a different case.
12 Nos. 13-2929, 13-3008 & 14-2297
A Batson challenge proceeds in three steps. 4 First, the de-
fendant must make a prima facie case that the peremptory
strike was racially motivated. Snyder v. Louisiana, 552 U.S.
472, 476 (2008). Second, the government must articulate a
race neutral explanation for the strike. Id. at 477. Finally, the
court must determine whether the defendant has shown
purposeful discrimination. Id. We review the district court’s
Batson findings for clear error. Id. On this standard of review,
we will affirm unless “we arrive at a definite and firm
conviction that a mistake has been made.” United States v.
McMath, 559 F.3d 657, 670 (7th Cir. 2009) (internal quotation
marks omitted). This deference is appropriate because the
best evidence of discriminatory intent often will be the
credibility and demeanor of the government’s attorney, and
determinations about credibility and demeanor lie “peculiar-
ly within a trial judge’s province.” Snyder, 552 U.S. at 477
(quoting Hernandez, 500 U.S. at 365).
There were four black jurors in the 33-person venire
summoned for trial. The government used peremptory
challenges to strike two of the four, Robert Albritton and
Helen Callahan; the other two black jurors were seated on
the jury.
The first two steps of the Batson inquiry are not contest-
ed. “[T]he burden at the prima facie stage is low, requiring
only circumstances raising a suspicion that discrimination
4 Discrimination by race, ethnicity, and sex is constitutionally prohibited
in all jury selection, including by defendants (so-called “reverse Batson”).
See Georgia v. McCollum, 505 U.S. 42, 59 (1992). For simplicity’s sake,
however, we will describe Batson doctrine in light of the posture of this
case; namely, defendants alleging that the government used its peremp-
tory strikes in a racially discriminatory manner.
Nos. 13-2929, 13-3008 & 14-2297 13
occurred, even when those circumstances are insufficient to
indicate that it is more likely than not that the challenges
were used to discriminate.” United States v. Stephens, 421 F.3d
503, 512 (7th Cir. 2005); see also Johnson v. California, 545 U.S.
162, 173 (2005). The defendants objected to the prosecutor’s
strikes against Albritton and Callahan, noting that they were
struck even though they were not self-evidently unfavorable
to the government. Batson Step Two requires the government
to advance race neutral reasons for its strikes, but these
reasons need not be persuasive (or even plausible) as long as
they are not racially discriminatory. United States v. Stephens,
514 F.3d 703, 710 (7th Cir. 2008); see also Purkett v. Elem,
514 U.S. 767–68 (1995) (per curiam).
The prosecutor said she struck Albritton primarily be-
cause he wore a Bluetooth device in his ear throughout voir
dire, and he also “seemed fairly disinterested in the proceed-
ings.” She offered several additional reasons as well:
Albritton said he had once been addicted to drugs (he had
been in recovery for nine years), his brother was an officer in
the Milwaukee Police Department, and he was unemployed.
The prosecutor also offered multiple race neutral justifi-
cations for striking Callahan: she was “very precise” in her
answers during voir dire (e.g., she said she was “61-and-a-
half,” and she specified, without prompting, that she had
previously served on a “civil” jury); she missed a question
even though it was written on a display board; and she
described herself as “self-employed” (as a massage thera-
pist). The prosecutor regarded this last point as problematic
because the defendants were planning to claim “that they
were self-employed at the time that they were actually
dealing drugs.”
14 Nos. 13-2929, 13-3008 & 14-2297
This brings us to the heart of the matter—Batson Step
Three. It’s at this stage that “the persuasiveness of the justifi-
cation becomes relevant … [and] the trial court determines
whether the opponent of the strike has carried his burden of
proving purposeful discrimination.” Johnson, 545 U.S. at 171.
The court can consider the totality of the circumstances,
measuring credibility by, “among other factors, the prosecu-
tor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has
some basis in accepted trial strategy.” Miller-El v. Cockrell,
537 U.S. 322, 339 (2003). If the court determines that the
proffered justification for the strike was pretextual, it may
infer discriminatory intent. Snyder, 552 U.S. at 485.
The judge found that the government’s use of a peremp-
tory strike against Albritton was not racially invidious, and
we find no clear error in that conclusion. In particular, the
judge concluded that Albritton’s close relationship with a
police officer (his brother) was a neutral, nonpretextual
justification for the strike. The judge acknowledged that a
relative of a police officer might be especially sympathetic to
the government, but remarked that the relationship “could
cut both ways.” That wasn’t error; the prosecutor might have
plausibly believed that a juror with a close relative on a
police force might hold police officers to an especially high
standard or have nonrepresentative beliefs about what
constitutes good police work.
The judge also credited the government’s reliance on the
fact that Albritton was a recovering drug addict. This was a
drug-conspiracy case, after all, and it’s a reasonable trial
strategy to remove jurors with firsthand experience buying
illegal drugs. There’s a heightened risk that they would rely
Nos. 13-2929, 13-3008 & 14-2297 15
on personal knowledge or find it difficult to evaluate the
case dispassionately. Albritton told the court that his history
of drug addiction would not prevent him from fairly serving
on the jury, but the government was not required to take his
word for it—that’s what peremptory challenges are for.
Regarding the prosecutor’s removal of Callahan, the
judge said this:
The argument that this involves employment,
it involves -- she is self-employed -- and is go-
ing to be the crux of the Government’s case, is
less than persuasive. But I also think that it
doesn’t rise to the level of an improper motive.
And that is placed in the context of the fact that
we do have minorities on the jury. … [I] think it
does impact back upon the motives of the Gov-
ernment when in fact there is a diverse panel to
begin with.
The judge did not specifically address the prosecutor’s other
proffered justifications for striking Callahan.
The question for us is whether the court clearly erred in
finding that the government’s “self-employment” rationale
was “less than convincing” but nevertheless nonpretextual.
It’s worth amplifying a point we made earlier: “The relevant
question during the third step of the Batson inquiry is
whether a strike was racially motivated. It follows that
Batson and its progeny direct trial judges to assess the hones-
ty—not the accuracy—of a proffered race-neutral explana-
tion.” Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Cir. 2006)
(citations omitted). In other words, “the government’s
proffered reason for the strike need not be particularly
16 Nos. 13-2929, 13-3008 & 14-2297
persuasive … so long as it is not pretextual.” United States v.
George, 363 F.3d 666, 674 (7th Cir. 2004); see also Purkett,
514 U.S. at 769 (noting that “the genuineness of the motive” is
the focus of the inquiry, not the “reasonableness of the assert-
ed nonracial motive”); United States v. Montgomery, 210 F.3d
446, 453 (5th Cir. 2000) (“[T]he ultimate inquiry for the judge
is not whether counsel’s reason is suspect, or weak, or irra-
tional, but whether counsel is telling the truth in his or her
assertion that the challenge is not race-based.”) (quotation
marks omitted).
It was not clear error for the judge to accept the prosecu-
tor’s “self-employment” rationale as nonpretextual, even
after saying it was “less than persuasive.” Despite his skepti-
cism, the judge’s ultimate conclusion—based on firsthand
observations of the proceedings—remains entitled to defer-
ence. He relied in part on the fact that two black jurors
remained on the jury, which is a valid (if not dispositive)
factor. See United States v. Grandison, 885 F.2d 143, 147 (4th
Cir. 1989) (“While the racial composition of the actual petit
jury is not dispositive of a Batson challenge, neither [is] the
district court precluded from considering it.”); see also United
States v. Simon, 422 F. App’x 489, 495 (6th Cir. 2011) (“While
the final racial composition of a jury … [is] not determinative
of whether a Batson violation occurred, [it is still] relevant to
the totality of the circumstances.”) (internal citations omit-
ted); United States v. Williams, 610 F.3d 271, 284 (5th Cir. 2010)
(“In light of the demographic composition of the jury and
the differences between [a black venire member’s] voir dire
responses and those of [two white venire members], we
discern no clear error … .”).
Nos. 13-2929, 13-3008 & 14-2297 17
Of course, the racial makeup of the venire and the final
jury panel can be affected by factors outside the govern-
ment’s control—challenges for cause, strikes by defense
counsel, juror availability, to name a few. But the govern-
ment’s “strike rate” is within its control, and it can some-
times be insightful. See Coombs v. Diguglielmo, 616 F.3d 255,
262 (3d Cir. 2010) (citing Miller-El, 545 U.S. at 241). The
relevance of the final jury composition is enhanced where
the government has peremptory strikes remaining but
declines to use them to remove minority jurors. See United
States v. Canoy, 38 F.3d 893, 900 (7th Cir. 1994) (“A number of
circuits, including this one, have relied on the fact that the
government waived available strikes and permitted mem-
bers of a racial minority to be seated on a jury to support a
finding that the government did not act with discriminatory
intent in striking another member of the same minority
group.”); see also id. at 900–01 (collecting cases). That’s what
happened here, and this factor bolsters the judge’s conclu-
sion that the prosecutor did not use a peremptory strike
against Callahan with discriminatory intent.
We caution, however, that the racial composition of the
venire and the seated jury cannot be the sole consideration
under Batson. The Equal Protection Clause is violated if even
a single juror is excluded because of invidious racial discrim-
ination. Cf. Powers v. Ohio, 499 U.S. 400, 409 (1991) (“An
individual juror … possess[es] the right not to be excluded
from [a jury] on account of race.”). We see no indication here
that the judge misunderstood this principle.
In the end, the defendants—from whom “the burden of
persuasion regarding racial motivation never shifts,” United
States v. McAllister, 693 F.3d 572, 578 (6th Cir. 2012)—have
18 Nos. 13-2929, 13-3008 & 14-2297
not persuaded us that the judge clearly erred in rejecting
their Batson challenge to the prosecutor’s peremptory strike
against Callahan. They rely heavily on McMath, but we don’t
think that case controls. There, the prosecutor struck a black
juror because of the “expression on his face,” and the judge
summarily denied the defendant’s Batson challenge. McMath,
559 F.3d at 661. We held, following Snyder, 552 U.S. at 479,
that “summary denial does not allow us to assume that the
prosecution’s reason was credible,” McMath, 559 F.3d at 666.
Here, in contrast, the judge did not rule summarily. We find
no clear error.
C. Hearsay Evidence
Special Agent James Krueger led the DEA’s multiyear in-
vestigation of Westlawn and Six Trey. He testified that in the
mid-2000s, the DEA gathered information about the two
gangs through search warrants, controlled buys, and record-
ed phone calls. He explained that the effectiveness of these
techniques waned as the years wore on because the gangs
adapted their practices to evade detection. As a result, the
September 2011 indictment was based primarily on evidence
derived from “historical debriefs”—interviews with inform-
ants—along with “a little bit of surveillance.”
Agent Krueger identified McClain and Cruse as targets
of the investigation that produced the September 2011
indictment. The prosecutor then asked this question: “Did
you receive information from confidential informants about
the drug trafficking activities of Daniel McClain and De-
mettris Cruse?” McClain objected on hearsay grounds,
noting that the government “[wi]ll have the informants
present to testify, Judge.” The judge overruled the objection,
and Agent Krueger answered, “Yes, I did.”
Nos. 13-2929, 13-3008 & 14-2297 19
McClain argues that his objection to this question should
have been sustained. We review evidentiary rulings for
abuse of discretion and will reverse only if no reasonable
person could have adopted the court’s view of the matter.
United States v. Causey, 748 F.3d 310, 316 (7th Cir. 2014).
Moreover, reversal for evidentiary error will be appropriate
only if the error affected the defendant’s substantial rights,
meaning that an average juror would have found the prose-
cution’s case significantly less persuasive without the im-
proper evidence. Id.
Hearsay is familiarly defined as an out-of-court state-
ment offered to prove the truth of the matter asserted. See
FED. R. EVID. 801(c). Whether a particular statement is hear-
say “will most often hinge on the purpose for which it is
offered.” United States v. Linwood, 142 F.3d 418, 425 (7th Cir.
1998). As relevant here, “[w]e have recognized repeatedly
that statements offered to establish the course of the investi-
gation, rather than to prove the truth of the matter asserted,
are nonhearsay and therefore admissible.” United States v.
Taylor, 569 F.3d 742, 749 (7th Cir. 2009) (internal quotation
marks omitted). If the jury would not otherwise understand
why an investigation targeted a particular defendant, testi-
mony regarding a confidential informant’s tip “could dispel
an accusation that the officers were officious intermeddlers
staking out [the defendant] for nefarious purposes.” United
States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004).
Considered in context, Agent Krueger’s answer to the
question whether law enforcement had “received infor-
mation” about drug trafficking by McClain and Cruse was
just this sort of “course of investigation” testimony.
McClain’s attorney had emphasized in opening statement
20 Nos. 13-2929, 13-3008 & 14-2297
that there would be no physical evidence of drug trafficking.
The government was entitled to ask Agent Krueger how the
DEA came to suspect McClain despite a lack of physical
evidence. The question came amidst a litany of questions
about the methods the DEA used to investigate the case: the
preceding question concerned surveillance of Six Trey, and
the subsequent one was about the use of search warrants.
Agent Krueger’s testimony explained why the police were
investigating McClain; whether the informants’ tips were
truthful was beside the point. Indeed, as McClain’s lawyer
pointed out in objecting to the question, numerous inform-
ants were scheduled to testify against McClain at trial, and
the jury would have ample opportunity to decide if they
were credible.
As with all evidence, the probative value of the testimony
must not be substantially outweighed by the risk of unfair
prejudice. See FED. R. EVID. 403. But Agent Krueger’s simple
three-word answer (“Yes, I did”) was a particularly innocu-
ous use of course-of-investigation testimony, especially
given that so many government cooperators later testified at
trial.
For the first time on appeal, McClain argues that Agent
Krueger’s answer to this question violated his Sixth
Amendment right to confront witnesses. It’s true that the
“informants” mentioned in the question were unidentified,
so we do not know if they were the same cooperators who
testified at trial. Because this objection was not preserved,
however, McClain must shoulder the heightened burden of
plain-error review. United States v. Anderson, 450 F.3d 294,
299 (2006). Even if there was error, he hasn’t come close to
showing that it affected his substantial rights, as required to
Nos. 13-2929, 13-3008 & 14-2297 21
warrant reversal. Id. Seven cooperating witnesses testified
that they engaged in drug transactions with McClain and
gave the DEA information about this activity. They were
subject to full cross-examination. In light of the abundant
testimony from cooperating witnesses, it cannot reasonably
be argued the verdict was influenced by Agent Krueger’s
affirmative answer to the question whether unidentified
informants fingered McClain. See id. (rejecting a Confronta-
tion Clause challenge because the defendants’ substantial
rights were not violated when five witnesses testified about
their drug dealing at trial).
D. Sufficiency of the Evidence
McClain challenged the sufficiency of the government’s
evidence in a Rule 29 motion for a judgment of acquittal. See
FED. R. CRIM. P. 29(a), (c). He reprises this argument here.
Our review is de novo. United States v. Mohamed, 759 F.3d
798, 803 (7th Cir. 2014). We view the evidence in the light
most favorable to the government and will affirm if any
rational trier of fact could have found the elements of the
crime beyond a reasonable doubt. Id.
Conspiracy has two elements: (1) an agreement to com-
mit an unlawful act; and (2) the defendant must have know-
ingly and intentionally joined that agreement. United States
v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006). The government
can prove these elements with circumstantial evidence,
though the Supreme Court has warned that “[i]n some cases
reliance on [circumstantial] evidence perhaps has tended to
obscure the basic fact that the agreement is the essential evil at
which the crime of conspiracy is directed.” Iannelli v. United
States, 420 U.S. 770, 777 n.10 (1975) (emphasis added).
McClain says that’s exactly what happened here: The ev-
22 Nos. 13-2929, 13-3008 & 14-2297
idence shows that he engaged in multiple buyer-seller
transactions only, not that he participated in a conspiratorial
agreement to distribute drugs. “Although every drug deal
involves an unlawful agreement to exchange drugs, we’ve
held that a buyer-seller arrangement can’t by itself be the
basis of a conspiracy conviction because there is no common
purpose: The buyer’s purpose is to buy; the seller’s purpose
is to sell.” United States v. Long, 748 F.3d 322, 325 (7th Cir.
2014) (internal quotation marks omitted).
Whether the evidence establishes a conspiratorial agree-
ment must ultimately be determined by the totality of the
circumstances, and we conduct a “holistic assessment of
whether the jury reached a reasonable verdict.” United States
v. Brown, 726 F.3d 993, 1002 (7th Cir. 2013). Still, we have
recognized “a few per se rules.” Id. For example:
A reasonable jury can infer a conspiracy from
evidence of a consignment relationship, or a re-
lationship exhibiting three qualities: “multiple,
large-quantity purchases, on credit.” Other
characteristics that distinguish a conspiracy
from a buyer-seller relationship include “an
agreement to look for other customers, a pay-
ment of commission on sales, an indication that
one party advised the other on the conduct of
the other’s business, or an agreement to warn
of future threats to each other’s business
stemming from competitors or law-
enforcement authorities.”
United States v. Jones, 763 F.3d 777, 807 (7th Cir. 2014) (quot-
ing Brown, 726 F.3d at 1002, 999).
Nos. 13-2929, 13-3008 & 14-2297 23
The government introduced ample evidence showing
that McClain knowingly participated in a long-running
conspiratorial agreement to distribute drugs in the neigh-
borhoods where the Six Trey and Westlawn gangs operated.
Nearly all the witnesses described the two gangs as informal
organizations that advanced their members’ drug-trafficking
activities by (among other things) keeping out intruders,
enforcing conduct norms, and providing warnings about
law enforcement. Testimony established that McClain was a
member of Six Trey and a longtime, large-scale cocaine
supplier within the organization, and also that he regularly
supplied drugs to Westlawn gang members for resale in the
housing project. This testimony was easily sufficient for the
jury to find that he entered into a conspiratorial agreement.
Additionally, McClain’s relationship with his middle-
men—particularly, Melvin Cooper (from 1996 to 2001) and
Dawan Howard (from 2007 onward)—supports the conspir-
acy conviction. Cooperation with a middleman is a conspira-
cy per se because the dealer and the middleman have agreed
to work together to distribute drugs to third parties. See
United States v. Bey, 725 F.3d 643, 649–50 (7th Cir. 2013);
United States v. Payton, 328 F.3d 910, 911 (7th Cir. 2003)
(collecting cases). Four witnesses—Mathis, Mohomes, Riley,
and Winters—testified that McClain used Cooper and
Howard as his middlemen to sell drugs, and that testimony
was independently adequate to satisfy both elements of the
conspiracy charge.
It’s true that the indictment did not name Cooper or
Howard as coconspirators. But it alleged a conspiracy
among certain identified members of the Westlawn and Six
Trey gangs and other “persons known and unknown.” The
24 Nos. 13-2929, 13-3008 & 14-2297
jury was entitled to believe the testimony about McClain’s
use of middlemen, and that testimony supports his convic-
tion even though they were not named as coconspirators in
the indictment. See United States v. Avila, 557 F.3d 809, 816
(7th Cir. 2009) (“Proving that [the defendant] joined the
conspiracy alleged in the indictment does not require that
the government prove he conspired with the individuals
named in the indictment. … [The government] need only
prove that the defendant conspired with anyone to commit
the crime charged in the indictment.”).
McClain responds with a general attack on the credibility
of the government’s witnesses, many of whom received
sentence reductions in exchange for their agreement to
testify. But evaluating the credibility of the witnesses is the
jury’s job. McClain also notes—correctly—that membership
in a gang is not definitive proof of conspiracy. See United
States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005). But the
jury was entitled to infer from McClain’s membership in the
Six Trey gang and his long history of supplying drugs to
middlemen for redistribution in the Six Trey and Westlawn
territories that he intentionally entered into a conspiratorial
agreement.
McClain’s fallback argument is that the government
failed to prove his involvement in a single conspiracy
stretching from 1996 to 2011, as described in the indictment.
At most, he argues, the evidence established that he partici-
pated in multiple, unconnected conspiracies. This is essen-
tially an argument that a fatal variance exists between the
conspiracy charged and the conspiracy (or conspiracies)
proven.
Nos. 13-2929, 13-3008 & 14-2297 25
As we’ve already explained, “[a] variance arises when
the facts proved by the government at trial differ from those
alleged in the indictment.” Avila, 557 F.3d at 815 (quoting
United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)); see
also id. (“We treat a conspiracy variance claim as nothing
more than a challenge to the sufficiency of the evidence.”).
To prevail on this claim, McClain must establish that (1) the
evidence at trial was insufficient for a rational juror to find
that he belonged to a single conspiracy (even if it could also
have been interpreted to show multiple conspiracies); and
that (2) he was prejudiced by the variance. Id. Prejudice in
this context generally means that the variance either unfairly
surprised the defendant, created a risk of subsequent prose-
cution for the same offense (this is only an issue when
multiple conspiracies were charged but only one was prov-
en), or threatened to confuse the jury. Id.
“[B]y their very nature, drug conspiracies are loosely-knit
ensembles.” United States v. Townsend, 924 F.2d 1385, 1391
(7th Cir. 1991). Here, as we’ve noted, the Westlawn and Six
Trey gangs had their own identities, members, and territo-
ries, and they occasionally feuded. But some members,
including McClain, moved freely between the gangs to
supply the drug trade within their respective territories. 5
Viewed in the light most favorable to the government, the
5 The government frames the Westlawn and Six Trey conspiracy as a
“hub and spoke” conspiracy, but our comment in United States v. Town-
send, 924 F.2d 1385, 1392 (7th Cir. 1991), bears repeating: “The fact that
we can squeeze a group into a hypothetical organizational chart says
little about whether a single agreement exists between the members of
the group,” and “organizational construct[s] … don’t eliminate the need
to inquire directly into whether the defendants had a mutual interest in
achieving the goal of the conspiracy.”
26 Nos. 13-2929, 13-3008 & 14-2297
evidence of a loose connection between the two gangs—an
overlap in membership and evidence of cooperation (such as
McClain’s use of two Westlawn members as middlemen)—is
sufficient to support a single conspiracy. See United States v.
Cerro, 775 F.2d 908, 914 (7th Cir. 1985) (describing “mutual
support” conspiracies that “require at most that the various
arrangements and transactions alleged to constitute or
manifest a single conspiracy contribute to the success of the
overall undertaking and in that sense reinforce each other”);
United States v. Longstreet, 567 F.3d 911, 919 (2009) (“So long
as the evidence demonstrates that the co-conspirators em-
braced a common criminal objective, a single conspiracy
exists, even if the parties do not know one another and do
not participate in every aspect of the scheme.”) (quotation
marks omitted).
But even if the evidence supported only smaller, uncon-
nected conspiracies as McClain argues, he hasn’t shown
prejudice. The indictment provided adequate notice of the
nature of the government’s evidence against McClain, and he
does not argue that he was the victim of unfair surprise at
trial. All seven of the government’s coconspirator witnesses
testified about McClain’s role as a drug supplier in the Six
Trey and Westlawn territories. There was little risk that the
jury would have been confused about “spillover” evidence
describing a distinct conspiracy in which he did not partici-
pate. See Bustamante, 493 F.3d at 887. This argument also
fails.
E. Buyer-Seller Instruction
As we’ve noted, an agreement to buy or sell drugs is not
itself conspiratorial. Rather, the law of conspiracy “pun-
ish[es] criminal objectives beyond the sale itself—most
Nos. 13-2929, 13-3008 & 14-2297 27
typically, the parties’ agreement subsequently to distribute
the drugs exchanged.” United States v. Askew, 403 F.3d 496,
503 (7th Cir. 2005). McClain and Cruse asked the district
court to instruct the jury about the distinction between a
buyer-seller relationship and a conspiracy. Specifically, they
requested Seventh Circuit Pattern Criminal Jury Instruc-
tion 5.10(A):
A conspiracy requires more than just a buyer-
seller relationship between the defendant and
another person. In addition, a buyer and seller
of [cocaine] do not enter into a conspiracy to
distribute [cocaine] simply because the buyer
resells [cocaine] to others, even if the seller
knows that the buyer intends to resell the [co-
caine].
The government objected, and the judge declined to give the
instruction. Both defendants raise this issue on appeal.
We review the denial of a requested jury instruction de
novo. United States v. Love, 706 F.3d 832, 838 (7th Cir. 2013).
“Defendants are not automatically entitled to any particular
theory-of-defense jury instruction.” United States v. Walker,
746 F.3d 300, 307 (7th Cir. 2014). Rather,
[a] defendant is only entitled to a jury instruc-
tion that encompasses [a] theory of the defense
if (1) the instruction represents an accurate
statement of the law; (2) the instruction reflects
a theory that is supported by the evidence;
(3) the instruction reflects a theory which is not
already part of the charge; and (4) the failure to
28 Nos. 13-2929, 13-3008 & 14-2297
include the instruction would deny the de-
fendant a fair trial.
Id. (internal quotation marks and alteration omitted). Only
the second and fourth steps in the analysis are contested
here: Did the evidence support Cruse’s or McClain’s request
for a buyer-seller instruction, and if so, were they denied a
fair trial because the jury was not instructed on this theory?
We’ve said many times that “district courts should give a
‘buyer-seller’ instruction … where the jury could rationally
find, from the evidence presented, that the defendant merely
bought or sold drugs but did not engage in a conspiracy.”
Love, 706 F.3d at 838 (citing United States v. Chavis, 429 F.3d
662, 671–72 (7th Cir. 2005)); United States v. Thomas, 150 F.3d
743, 746 (7th Cir. 1998) (per curiam) (“If a jury rationally
could find in the defendant’s favor on some material issue,
then the jury must be instructed on that subject.”); 7TH CIR.
PATTERN CRIM. JURY INSTRUCTIONS 5.10(A) cmt. (2012) (“This
[buyer-seller] instruction should be used only in cases in
which a jury reasonably could find that there was only a
buyer-seller relationship rather than a conspiracy.”).
Of course, there will be cases in which the evidence does
not support the reasonable inference that the defendant was
merely a buyer-seller; an irrelevant instruction would only
serve to confuse the jury and need not be given. See Love,
706 F.3d at 839. We have frequently upheld district courts
that have declined to give the instruction in the face of
strong evidence of a conspiratorial agreement. See, e.g., id.
(holding no buyer-seller instruction was required in a case in
which the evidence included phone logs, videotapes, audio
recordings, and testimony from an informant and law-
enforcement officers); Johnson, 437 F.3d at 669 (finding no
Nos. 13-2929, 13-3008 & 14-2297 29
plain error where the government introduced audio record-
ings showing that the defendant acted as a broker for his
coconspirator, as well as evidence from controlled buys);
Askew, 403 F.3d at 504 (finding no plain error where the
record included direct surveillance of drug deals, evidence
that the defendant received drugs at below-market prices,
and other evidence linking the defendant to his coconspira-
tor); United States v. Fort, 998 F.2d 542, 543 (7th Cir. 1993)
(holding that the instruction was not necessary when there
was wiretap and surveillance evidence documenting the
defendant’s cooperation with his coconspirator).
The government argues as a threshold matter that Cruse
and McClain were not entitled to a buyer-seller instruction
because they tried to portray themselves as “innocent by-
standers.” The government reads Love, Johnson, Askew, and
Fort as establishing a general principle that a defendant who
denies selling drugs is never entitled to buyer-seller instruc-
tion. That’s not correct. As we’ve just noted, in each of those
cases we reviewed the entire record and upheld the denial of
the instruction based on strong, direct evidence of conspira-
cy (e.g., videotapes, audio recordings, surveillance, con-
trolled buys, informant testimony) and the absence of any
record support for a buyer-seller relationship. Moreover, and
importantly, the government’s understanding of these cases
is in tension with Mathews v. United States, 485 U.S. 58, 63–64
(1988), which holds that inconsistent defenses are permissi-
ble. For these reasons, we think the government has misread
this line of cases.
With the legal background now in place, we begin with
Cruse. Four witnesses—Seymore, Mathis, Winters, and
Riley—testified that they engaged in drug transactions with
30 Nos. 13-2929, 13-3008 & 14-2297
Cruse. But a reasonable jury could have found that these
deals were merely buyer-seller transactions. None of the
drug sales had any of the usual markers of conspiracy, such
as consignment arrangements, profit sharing, or agreements
regarding further distribution of the drugs. Seymore and
Mathis said they bought drugs from Cruse but always paid
in cash upon delivery. Winters and Riley testified that they
sold drugs to Cruse and he normally paid in full upon
delivery; only occasionally did they sell drugs to him on
credit. Occasional credit sales are not necessarily incon-
sistent with a buyer-seller relationship. See United States v.
Johnson, 592 F.3d 749, 755 n.5 (7th Cir. 2010). Repeated, large-
scale sales of drugs on credit are a sufficient basis from
which a jury can infer a conspiratorial agreement, but we
cannot conclude that the evidence of sporadic purchases on
credit defeats Cruse’s request for a buyer-seller instruction.
The government counters that Cruse could not have been
a mere buyer-seller because he taught Winters how to cook
powder cocaine into crack, and this sharing of advice can
indicate a conspiracy. See Jones, 763 F.3d at 807. But the “cook-
ing lesson” took place before the start date of the conspiracy, at
a time when Winters was in seventh grade and Cruse was just a
few years older. A reasonably jury could conclude that Cruse’s
tutoring session was not evidence of an agreement regarding
the distribution of drugs years later.
The government also suggests that since Cruse was a
member of Westlawn, he was part of the gang’s drug-
distribution network regardless of the specific sales de-
scribed at trial. But Cruse’s status with respect to Westlawn
was disputed. Winters, who self-identified as a Westlawn
member, answered “no” when asked if Cruse was a member
Nos. 13-2929, 13-3008 & 14-2297 31
of Westlawn. (Winters said he sold drugs to Cruse because
they had grown up together.) Riley said Cruse was a
Westlawn member, but he also explained that he considered
everyone who grew up in the Westlawn housing projects to
be a member of the gang. Seymore’s testimony on this point
was ambiguous; he said that Cruse was “affiliated” with
Westlawn but was allowed to sell drugs in the neighborhood
because he “grew up in that area.”
In short, the testimony about Cruse’s relationship to the
Westlawn gang was sufficiently equivocal that the jury
might reasonably have rejected the government’s argument
that Cruse was a gang member. Alternatively, the jury might
reasonably have concluded that even if Cruse was a member,
“membership” was so informal (everyone from the neigh-
borhood was “in” by default) that it did not suggest a con-
spiratorial agreement, but instead only a buyer-seller rela-
tionship. See Avila, 465 F.3d at 798 (“The government has
confused gang membership with membership in a conspira-
cy … .”). On this record we think Cruse has shown that the
evidence supported an inference that he engaged in buyer-
seller transactions.
McClain is a different story. Burton testified that McClain
was a member of Six Trey and served as the gang’s major
drug supplier. Mohomes testified that he regularly saw
McClain selling drugs out of a drug house operated by Six
Trey members. Even more decisively, Mohomes, Riley,
Mathis, and Winters all testified that Cooper and Howard
worked as middlemen for McClain. As we’ve explained, the
relationship between middlemen and their superiors is per
se conspiratorial because it is an agreement to cooperate to
sell drugs. See Thomas, 150 F.3d at 745 (equating conspiracy
32 Nos. 13-2929, 13-3008 & 14-2297
with a “business partners[hip]”). Because a middleman and
his principal are on the same side of a transaction, they
cannot have a buyer-seller relationship. Payton, 328 F.3d at
912 (“The ‘buyer-seller’ argument is irrelevant … [if] the
conspirators are on the same side of the sale.”).
Although “[i]n a dubious case it may often be better to give
the proposed instruction and let the jury sort it out,” United
States v. Meyer, 157 F.3d 1067, 1076 (7th Cir. 1998), a defendant
is not entitled to a theory-of-the-defense instruction unless the
evidence supports the theory. The robust and uncontroverted
evidence regarding McClain’s use of middlemen made the
buyer-seller instruction inapposite. See Fort, 998 F.2d at 544–45
(holding that the buyer-seller instruction was not required
when the alleged conspiracy was between the defendant and
a “broker” who arranged drug sales on his behalf). The
judge properly denied McClain’s request for the instruction.
This brings us back to Cruse. Was he denied a fair trial
when the judge refused to give the buyer-seller instruction
when the evidence supported it? We have generally an-
swered this question “yes”: If “the evidence was such that a
reasonable jury could have found that [the defendant] was
merely a buyer from the conspiracy, the failure to give a
buyer-seller instruction denied [him] a fair trial.” Meyer,
157 F.3d at 1075; see also United States v. Gee, 226 F.3d 885, 895
(7th Cir. 2000) (“We have no way of knowing whether, had
the jury understood the distinction between a conspiracy
and a buyer-seller relationship, it would still have convicted
[the defendants] of conspiracy.”).
An uninstructed jury is not likely to be able to intuit the
distinction between an arm’s-length agreement to buy or sell
drugs and a conspiratorial agreement to distribute drugs.
Nos. 13-2929, 13-3008 & 14-2297 33
For this reason, we have never found a failure to give the
buyer-seller instruction to be harmless. And the error was
not harmless here. Cruse is entitled to a new trial with the
benefit of the buyer-seller jury instruction.
F. Drug-Quantity Instruction
McClain and Cruse raise a second claim of instructional
error, this one related to the special verdict form that the jury
used to find the type and quantities of drugs attributable to
the defendants. 6 The jury was told that Cruse and McClain
were responsible for “the amount of cocaine involved in the
agreement, and all amounts involved in all acts of the co-
conspirators committed in furtherance of the conspiracy.”
This instruction omitted the Pinkerton principle that cocon-
spirator liability only extends to those criminal acts that
(1) were reasonably foreseeable to the defendants; and
(2) occurred during the time that they were members of the
conspiracy. See Pinkerton v. United States, 328 U.S. 640, 647–48
(1946); 7TH CIR. PATTERN CRIM. JURY INSTRUCTIONS 5.11
(2012).
6 Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 133 S. Ct. 2151 (2013), facts that increase either a statutory maxi-
mum or trigger a mandatory minimum sentence must be found beyond
a reasonable doubt by the jury. Alleyne was decided several months after
this trial. Ordinarily, a “new rule for the conduct of criminal prosecutions
is to be applied retroactively to all cases … pending on direct review … ,
with no exception for cases in which the new rule constitutes a ‘clear
break’ with the past.” Johnson v. United States, 520 U.S. 461, 467 (1997)
(quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). This creates no
complication here because the jury used a special verdict form to find the
drug types beyond a reasonable doubt (under Apprendi, its findings
could have increased the statutory maximums).
34 Nos. 13-2929, 13-3008 & 14-2297
The defendants did not object to the instruction, so our
review is for plain error only. Everyone agrees that the jury
should have been instructed on the Pinkerton doctrine. But
the government argues that we need not correct the error
because it did not seriously affect the fairness, integrity, or
public reputation of the proceedings, as required to win
reversal on plain-error review. United States v. Anderson,
450 F.3d 294, 299 (7th Cir. 2006).
Because we’re vacating Cruse’s conviction on other
grounds, we focus our attention on McClain. As we’ve
already explained (back in our discussion of Henderson’s
plea agreement), drug quantity is not an element of a drug
conspiracy under § 841(a)(1). See United States v. Martinez,
301 F.3d 860, 865 (7th Cir. 2002). Accordingly, the Pinkerton
instructional error does not cast doubt on McClain’s conspir-
acy conviction. Rather, the remedy for the error would be
resentencing under the default drug-conspiracy penalty
provision, § 841(b)(1)(C). See United States v. Delgado-Marrero,
744 F.3d 167, 191 (1st Cir. 2014); United States v. Daniels,
723 F.3d 562, 572 (5th Cir. 2013).
The pertinent question is the effect of the Pinkerton in-
structional error on the jury’s finding that the conspiracy
involved at least five kilograms of cocaine or 280 grams of
crack for purposes of the penalty scheme in § 841(b)(1)(A).
We’re confident that the error had no effect at all. Even with
the more narrowly focused Pinkerton instruction, the jury
would have attributed more than 5 kilograms of powder
cocaine or 280 grams of crack to McClain. Five of the six
cooperating witnesses—Winters, Burton, Mathis, Mohomes,
Harvester, and Riley—testified that they engaged in drug
transactions directly with McClain or through his middle-
Nos. 13-2929, 13-3008 & 14-2297 35
men, and their drug-quantity estimates alone were sufficient
to trigger the mandatory minimum sentence under
§ 841(b)(1)(A). Because McClain was personally responsible
for such a large quantity of drugs during the course of this
long-running conspiracy, there is no reason to doubt that the
threshold limits set forth in § 841(b)(1)(A) were met, regard-
less of the failure to instruct on the Pinkerton principle of
reasonable foreseeability. The error did not affect McClain’s
substantial rights. 7
III. Conclusion
Summing up, we AFFIRM the judgments against Hender-
son and McClain; as for Cruse, we VACATE the judgment and
remand for a new trial.
7 McClain also argues in a footnote to his reply brief that the court
miscalculated his recommended sentence under the Sentencing Guide-
lines. However, “[a]rguments raised for the first time in a reply brief are
waived.” Damato v. Sullivan, 945 F.2d 982, 988 n.5 (7th Cir. 1991) (quota-
tion marks omitted).