The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4265
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN WILLIAMS, also known as
TWIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 30080--Jeanne E. Scott, Judge.
Argued May 10, 2000--Decided June 19, 2000
Before EASTERBROOK, RIPPLE and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. A jury convicted
Kevin Williams of conspiracy to
distribute cocaine base, in violation of
21 U.S.C. secs. 841(b)(1)(A) and 846.
Williams now challenges the sufficiency
of the evidence, the district court’s
admission of evidence of other bad acts,
and his sentence. We affirm.
I.
Williams was charged with conspiring
with Eric Powell and others to distribute
cocaine and cocaine base. Powell was a
childhood friend of Williams who
testified under a grant of immunity as
part of a plea agreement with the
government. Powell testified that from
mid-1997 through October 1998, Williams
provided him with crack cocaine on a
regular basis. Approximately every other
day, Williams provided Powell with
quantities ranging from one-eighth of an
ounce to two full ounces of crack
cocaine. Sometimes Powell collected money
from the ultimate buyer up-front and paid
Williams for the drugs at the time Powell
received them. Other times, Williams
provided Powell with cocaine base with
the expectation that Powell would pay him
after he sold the drugs, a practice known
as "fronting." Powell and Williams often
communicated using cellular phones, and
many of their discussions were recorded
by the FBI under a court-authorized
wiretap. At trial, Powell and seven other
witnesses who knew Williams well
identified Williams’ voice on the tapes.
The conversations were brief and in code,
as Powell explained at trial. Powell
called whenever he had a buyer and needed
to meet with Williams to replenish his
supply of crack cocaine. Using a language
that was all their own, Powell and
Williams discussed quantities and prices,
as well as times and places for the
transactions to take place.
Powell’s girlfriend Yvonne Persley also
testified. She had been charged with
assisting Powell in his drug business,
and at the time of Williams’ trial she
was awaiting sentencing for her role in
the scheme. She testified that Williams
was at her house with Powell several
times a week, that she heard Powell on
the telephone with Williams arranging to
receive a "package" for one of Powell’s
drug customers, and that she twice saw
Williams in possession of wads of cash
the size of a tennis ball. Larry Austin,
who had been charged with conspiring with
Powell, testified under a grant of
immunity that he saw Williams sell crack.
David Jackson, another of Powell’s co-
conspirators, testified that he purchased
crack directly from Williams during the
relevant time period. Finally, Powell’s
brother, Deshawn Powell, testified that
he saw Williams sell crack to Powell in
the summer and early fall of 1998.
Before trial, the government filed
notice that it wished to introduce
evidence from five witnesses concerning
their observations of Williams possessing
and selling crack cocaine during the time
of the conspiracy, but not directly
relating to the conspiracy with Powell.
The court carefully considered the
government’s proffer, applying the four-
part test set out by this Court in
analyzing the evidence. The district
court ruled that the prejudice of some of
the evidence outweighed its probative
value, and this evidence was excluded.
The district court ruled that other
evidence was relevant to method of
operation, motive to conspire and
availability of the drug to the
defendant, and that the prejudice did not
outweigh the probative value for this
evidence. The court offered to give
limiting instructions to the jury, an
offer that Williams accepted. At trial,
the court instructed the jury both at the
time the evidence was admitted and during
final instructions that this other bad
acts evidence was to be considered for a
limited purpose only, that it could not
be used as direct evidence of the crime
charged but rather could be used only to
show motive, opportunity and method of
operation. After the first two "bad acts"
witnesses testified, the court further
limited the government, believing that
additional bad acts testimony would be
cumulative. Although the court ruled that
the government could put on one more such
witness, the government declined to put
in further bad acts evidence. The jury
subsequently convicted Williams, and the
court sentenced him to 151 months of
incarceration.
II.
On appeal, Williams first asserts that
the evidence was insufficient to allow
any rational jury to find that he was
guilty of conspiring to distribute a
controlled substance. Williams
acknowledges the formidable hurdle he
must overcome to successfully challenge
the sufficiency of the evidence. See
United States v. Van Dreel, 155 F.3d 902,
906 (7th Cir. 1998). Viewing the
evidence in the light most favorable to
the government, we reverse only if the
record contains no evidence from which
the jury could find guilt beyond a
reasonable doubt. Id. Williams claims the
government’s case must fail because the
witnesses presented against him were not
credible, and there was no corroborating
evidence. The essence of Williams’ claim
is that Powell lied to the government in
the process of reaching his plea
agreement, and as a result, the
government was forced to enter into a
second cooperation agreement with Powell.
Thus, by the government’s own account,
Powell was a liar. Moreover, some of the
government’s other witnesses contradicted
certain testimony by Powell. Williams
concludes that Powell was incredible as a
matter of law. Williams also complains
that the government failed to produce any
corroborating physical evidence, such as
the drugs Williams distributed. In these
circumstances, Williams contends, his
conviction cannot stand.
Credibility determinations are within
the province of the jury, and we reverse
such determinations on appeal only under
exceptional circumstances, such as "where
it was physically impossible for the
witness to observe that which he claims
occurred, or impossible under the laws of
nature for the occurrence to have taken
place at all." United States v. Ruiz, 178
F.3d 877, 880 (7th Cir. 1999), cert.
denied, 120 S. Ct. 229 (1999) (quoting
United States v. Hach, 162 F.3d 937, 942
n.1 (7th Cir. 1998), cert. denied, 119 S.
Ct. 1586 (1999)). Because Williams has
failed to allege any such special
circumstances here, his challenge to the
sufficiency of the evidence is without
merit. Ruiz, 178 F.3d at 880; Van Dreel,
155 F.3d at 906. We must leave open the
possibility that even a liar tells the
truth once in a while, and the jury is in
the best position to judge Powell’s
credibility.
Williams next contends that the district
court abused its discretion in admitting
evidence of other bad acts committed by
him. Federal Rule of Evidence 404(b)
provides:
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however, be
admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident,
provided that upon request by the
accused, the prosecution in a criminal
case shall provide reasonable notice in
advance of trial, or during trial if the
court excuses pretrial notice on good
cause shown, of the general nature of any
such evidence it intends to introduce at
trial.
The government provided notice in advance
of trial, and Williams does not challenge
the adequacy of that notice. Rather, he
complains that the district court
conducted only a cursory review of the
proffered evidence, and that the
admission of this evidence led the jury
to convict him based solely on his bad
character. The prejudicial effect of the
evidence, he contends, greatly exceeded
the probative value.
We review rulings determining the
admissibility of evidence under Rule
404(b) for an abuse of discretion. United
States v. Wiman, 77 F.3d 981, 984 (7th
Cir. 1995). The district court applies a
four-part test to determine the
admissibility of 404(b) evidence: (1) the
evidence is directed toward establishing
a matter in issue other than the
defendant’s propensity to commit the
crime charged; (2) the evidence shows
that the other act is similar enough and
close enough in time to be relevant to
the matter in issue; (3) the evidence is
sufficient to support a jury finding that
the defendant committed the similar act;
and (4) the probative value of the
evidence is not substantially outweighed
by the danger of unfair prejudice. United
States v. Asher, 178 F.3d 486, 492 (7th
Cir. 1999), cert. denied, 120 S. Ct. 359
(1999). The only prong of this test that
Williams cites is the last one, and so we
will focus our attention there as well.
The district court engaged in a careful
analysis of the evidence the government
proffered, and decided that, on balance,
some of the evidence should be excluded.
Thus the court excluded evidence that
Williams’ pit bull dog had dug up drugs
in his yard in the summer of 1997 or
1998, finding that the reputation of the
pit bull was such that there was a danger
the jury would be unduly prejudiced. But
the court ruled admissible evidence from
five different witnesses that they had
either seen Williams in possession of
crack cocaine or that they had personally
purchased crack from Williams in 1997 and
1998. The court found that this testimony
would establish Williams’ method of
operation, his motive to conspire, and
the availability to Williams of drugs.
The court also determined that the
conduct was similar to the charged
conduct and close enough in time to the
charged conduct to be relevant. Because
these witnesses were making statements
against their own interest, the district
court found that the evidence set forth
in the government’s proffer would be
sufficient to support a jury finding.
Finally, the court found that the
probative value of the evidence was not
outweighed by the prejudice. In order to
minimize the prejudicial effect of the
evidence, the court offered to give
limiting instructions, and Williams
accepted this offer. The court gave the
instructions twice, once when the
witnesses testified, and again in final
instructions.
We assume that jurors follow the court’s
instructions, unless there is substantial
evidence to the contrary. United States
v. Hernandez, 84 F.3d 931, 935 (7th Cir.
1996). Moreover, we accord great
deference to the district court’s
assessment of the evidence because of the
judge’s first-hand exposure to the
evidence and because of the judge’s
familiarity with the case and ability to
gauge the impact of the evidence on the
jury in the context of the trial. Asher,
178 F.3d at 494. Because the court
properly applied the four-part test and
observed numerous safeguards to reduce
the possibility of unfair prejudice, we
conclude that the district court did not
abuse its discretion in admitting the
Rule 404(b) evidence.
Williams’ final challenge is to the two-
point sentence enhancement he received
for gun possession under U.S.S.G. sec.
2D1.1(b)(1). That provision requires a
two-level enhancement if a weapon was
possessed during the commission of a drug
offense, unless it is clearly improbable
that the weapon was connected to the
offense. Williams complains that the
government’s evidence in support of the
enhancement is "scant." The guns were
seized from a car parked at the home of
Williams’ girlfriend approximately five
months after Williams was arrested, and
no drugs were ever found. The government
notes that Williams was living with his
girlfriend at the time of the seizure and
that this seizure merely corroborated
testimony from David Jackson, a co-
conspirator of Powell, that he had seen
Williams in possession of a number of
different guns during the time Williams
was dealing crack cocaine. We need not
decide if the government’s evidence was
sufficient, however, because Williams
received the statutory minimum sentence
for a person with a prior felony drug
conviction who is subsequently convicted
of an offense involving in excess of 50
grams of crack. Williams does not dispute
that he was eligible for this statutory
minimum or that he in fact received the
statutory minimum. As a result, his
challenge to the two-level enhancement is
moot, and we need not decide the issue.
See United States v. Ivory, 11 F.3d 1411,
1413 (7th Cir. 1993). For all of these
reasons, the judgment of the district
court is
AFFIRMED.