United States v. McGee, Keith

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 01-2493, 01-3071, 01-3978, 01-4027, 01-4139,

01-4235, 02-1130, 02-1136, & 02-2153

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH MCGEE, THOMAS KING,

LARONE BRIM, HAROLD MCKINZIE,

TONY BANKS, RABBONI SMITH,

JOHN ECTOR, and FLOZELL MCGEE,

Defendants-Appellants.

____________

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 99 CR 952—Ruben Castillo, Judge.

____________

ARGUED OCTOBER 1, 2004—DECIDED JUNE 3, 2005

____________

Before FLAUM, Chief Judge, and BAUER and POSNER,

Circuit Judges.

BAUER, Circuit Judge. A grand jury indicted the eight

above-named defendants and seven others in 1999 in a

thirty-nine count indictment based on their respective roles

in a drug conspiracy in the Englewood neighborhood on

Chicago’s South Side. The indictment charged the defendants

2 Nos. 01-2493, et al.

with various drug offenses, including conspiracy to distribute

narcotics, possession with intent to distribute narcotics, and

use of a telephone to facilitate the conspiracy. Larone Brim

pleaded guilty and the other seven defendants-appellants

proceeded to trial. After a three-week trial, a jury convicted

Keith McGee, Thomas King, Tony Banks, Rabboni Smith,

John Ector, and Flozell McGee on all counts. The jury

acquitted Harold McKinzie on the conspiracy count, but

convicted him on two telephone facilitation counts. McKinzie

subsequently pleaded guilty to two previously severed

counts of possession with intent to distribute.

The defendants, individually and collectively, appeal

raising numerous issues. For the reasons stated herein, we

affirm the defendants’ convictions, vacate and remand

Ector’s case for resentencing, and order a limited remand

with respect to the sentences of King, Smith, Keith McGee,

Flozell McGee, Brim, and McKinzie pursuant to United States

v. Paladino, 401 F.3d 471 (7th Cir. 2005).

I. Background

A. Investigation and Indictments

In 1997, while investigating Charles Jackson, a suspected

drug dealer in Chicago, the FBI identified Robert Allen as

a cocaine supplier in Chicago’s Englewood neighborhood.

The FBI eventually obtained authorization to monitor Allen’s

land line and cellular telephones from April to June 1998.

During that period, the FBI intercepted over 4,000 tele-

phone calls, many of which involved drug transactions.

In August 1998, based in part on information from the

intercepted phone calls, the FBI arrested Allen, Antwayne

Palmore, Samuel Redding, and Irving Tillman—all of whom

subsequently pleaded guilty to drug conspiracy charges and

agreed to cooperate with the government. Thereafter, and

in part as a result of their cooperation, the grand jury

Nos. 01-2493, et al. 3

returned an indictment against defendants Keith McGee,

King, Banks, Smith, Ector, Flozell McGee, McKinzie, Brim,

and seven others. All defendants were charged with conspir-

ing, between January 1997 and August 1998, to distribute

and possess with intent to distribute more than five

kilograms of cocaine and more than fifty grams of cocaine

base, in violation of 21 U.S.C. § 846. The grand jury further

charged King with possessing with intent to distribute ap-

proximately 123.5 grams of cocaine on or about January 6,

1998, in violation of 21 U.S.C. § 841(a)(1). In addition, the

grand jury charged McKinzie with possessing with intent to

distribute approximately 60.7 grams of cocaine and

92 grams of cocaine base on or about December 8, 1999,

in violation of 21 U.S.C. § 841(a)(1). The grand jury also

charged each defendant with at least one count of using a

telephone to facilitate the conspiracy, in violation of 21

U.S.C. § 843(b).

On September 1, 2000, Brim pleaded guilty to the con-

spiracy count and to four telephone facilitation counts. On

September 8, 2000, the district court severed the possession

with intent to distribute counts against McKinzie from the

trial. The remainder of the case proceeded to trial in

January 2001.

B. Evidence at Trial

Allen, Palmore, Samuel Redding, and Tillman all testified

for the government at trial. According to Allen and Palmore,

Allen, Palmore, Franklin Redding, and King “grouped

together” to sell cocaine in early 1997 due to a “drought” of

cocaine in Chicago. Each had been involved in the drug trade

previously. Allen was in charge of the operation; Palmore

contributed money, suppliers, and customers; Franklin

Redding contributed customers and drugs; and King picked

up kilograms of cocaine from suppliers and sold them to

drug dealers. Although Palmore and Franklin Redding left

4 Nos. 01-2493, et al.

the operation at different points due to disputes over money,

both later resumed buying and selling drugs in connection

with the operation.

The drug operation obtained powder cocaine in kilogram

quantities from various drug suppliers. Before the drugs

were resold, Allen usually “rerocked” the powder cocaine,

adding a mix to it in order to increase the volume of the

cocaine and the operation’s profits. In order to create crack

cocaine, Allen heated a mixture of the “rerocked” cocaine,

baking soda, and water to an oil base and then cooled it into

a hardened substance. The operation then resold the

“rerocked” powder cocaine and crack cocaine to drug dealers

in quantities ranging from 63 grams to multiple kilograms.

From early 1997 to August 1998, the operation sold over

100 kilograms of crack cocaine and over 100 kilograms of

powder cocaine, with a profit of approximately $31,000 on

each kilogram. Allen and Palmore kept most of the profits;

Franklin Redding and King received $1,000 and $500 per

kilogram respectively.

Like many drug dealers, Allen and his cohorts frequently

spoke in code. Allen translated the code for the government

before trial and explained the code to the jury at trial.

Crack cocaine was referred to as “tight” or “hard.” With re-

spect to quantity, “125th street” was code for 125 grams of

drugs, “halfway home” was code for one-half kilogram, and

“all the way home” was code for one kilogram. Although the

operation generally expected payment from customers upon

delivery of the drugs, it “fronted” drugs to certain customers

with the understanding that they would pay the operation

within a reasonable period of time.

In presenting the evidence, the government addressed

each defendant individually, beginning with Banks. Allen

testified that he and Banks grew up together. When Banks

was released from jail in 1998, Allen gave him money,

drugs, and a car. Allen testified that there were numerous

Nos. 01-2493, et al. 5

sales between him and Banks, and that Banks bought a

total of approximately two kilograms of cocaine from Allen

in 1998. Allen fronted Banks drugs if they were “just for

him,” and Banks paid Allen on delivery when he acted as a

middleman. On occasion, Allen cooked crack cocaine for

Banks.

Ector began dealing drugs with Allen in 1998. According

to the evidence presented at trial, Ector purchased a total

of four kilograms of powder cocaine from the drug operation

in 1998. On one occasion, in early 1998, Ector arranged

with Palmore to buy one-eighth of a kilogram of cocaine;

Allen and Samuel Redding met Ector at a gas station to

complete the deal. Samuel Redding also testified about two

additional drug deals between the operation and Ector, with

Ector purchasing 250 grams of cocaine on one occasion and

one-half kilogram of cocaine on another occasion.

King actively worked for the drug operation between 1997

and April 1998. While working for the operation, King

picked up kilograms of cocaine from suppliers and sold it to

drug dealers. On two occasions in 1997, King delivered one-

eighth of a kilogram of cocaine to Samuel Redding. In late

1997, King delivered one-half of a kilogram of cocaine to

Irving Tillman. On two occasions in 1998, King sold Irving

Tillman one-eighth of a kilogram of cocaine. On

both occasions in 1998, King delivered the drugs to Irving

Tillman’s apartment and was present while he cooked the

powder cocaine into crack cocaine.

The McGee brothers, Keith and Flozell, engaged in numer-

ous drug deals with Allen and his associates. Between 1997

and 1998, Keith McGee purchased four kilograms of powder

cocaine and two kilograms of crack cocaine from the

operation. Keith McGee acted as a middleman, selling those

drugs to other customers, including his brother, Flozell.

During 1998, members of the drug operation sold a total of

three kilograms of powder cocaine to Flozell McGee in one-

6 Nos. 01-2493, et al.

eighth of a kilogram quantities. The FBI intercepted and

recorded numerous phone calls reflecting the McGee broth-

ers’ involvement in the operation.

Allen met McKinzie in late 1997 when McKinzie began

buying drugs from the operation. According to Allen,

McKinzie bought powder and crack cocaine in quantities of

one-sixteenth to one-eighth of a kilogram. Irving Tillman

testified that he delivered drugs to McKinzie approximately

twenty times between late 1997 and early 1998.

Allen met Rabboni Smith in 1997. In 1997 and 1998,

Smith purchased approximately five kilograms of powder

cocaine and four kilograms of crack cocaine. The operation

fronted drugs to Smith, who paid various members of the

operation after he sold the drugs to his customers. Samuel

Redding sold drugs to Smith on twenty occasions at Allen’s

home. Palmore sold drugs to Smith about twelve times in

spring of 1998. In early 1998, Irving Tillman saw Smith buy

drugs from Allen ten times. The FBI intercepted and

recorded numerous phone calls reflecting Smith’s involve-

ment in the drug operation.

Smith took the stand in his own defense at trial. Smith

admitted that it was his voice on the tape-recorded phone

calls, and he admitted that he sold at least one-quarter of

a kilogram of powder and crack cocaine between February

and July 1998. Smith also admitted that the operation

fronted drugs to him. According to Smith, he was coerced in-

to engaging in the charged conduct under threat of serious

bodily harm or death to himself, his wife, and his daughter

in order to pay a debt to the Black Disciples street gang.

Smith testified that he joined the Black Disciples in

March 1992 and attempted to leave the gang in 1993, but

the gang terrorized and fined him for trying to leave. Smith

eventually left the gang after paying a portion of his fine

and enrolled in an engineering program at the Illinois

Institute of Technology (“IIT”). Smith testified that he was

crossing the IIT campus with a classmate in February 1998

when he was accosted by Palmore, Samuel Redding, and

Nos. 01-2493, et al. 7

another Black Disciple. According to Smith, the men had

come to collect on Smith’s unpaid debt, and they forced him

into their car at gunpoint. Smith was taken to Allen’s

apartment and beaten with a Wiffle Ball bat. According to

Smith, he was ultimately forced to work off the old debt as

well as an additional fine by selling drugs for Allen, whom

Smith insisted had never left the Black Disciples.

The jury convicted all defendants on all counts with the

exception of McKinzie, who was acquitted on the conspiracy

count and convicted on two telephone facilitation counts.

The defendants appeal numerous issues.

II. Discussion

A. Joint Brief

Defendants argue that the district court thwarted their

right to cross-examine the government’s witnesses and, in

the end, denied them a fair trial. Defendants first criticize

the district court for denying their request for the “versions

of offenses” portion of the presentence reports of six govern-

ment witnesses. Next, defendants assail the district court

for putting limitations on their cross-examination of Allen,

primarily with regard to two letters Allen wrote to the

prosecutor in which he offered to cooperate with the

government in exchange for leniency. Finally, defendants

contend that the district court barred ordinary impeach-

ment by prior inconsistent statement and the use of FBI

reports to attempt to refresh a witness’ recollection. We will

address each argument in turn.

1. Jencks Act

We begin with defendants’ contention that the district

court improperly denied them access to the “versions of

offenses” portions of government witnesses’ presentence

8 Nos. 01-2493, et al.

reports, which defendants view as Jencks Act material. The

Jencks Act provides, in relevant part:

After a witness called by the United States has testified

on direct examination, the court shall, on motion of the

defendant, order the United States to produce any

statement (as hereinafter defined) of the witness in the

possession of the United States which relates to the

subject matter as to which the witness has testified.

18 U.S.C. § 3500(b). The Jencks Act defines a statement as

“a written statement made by said witness and signed or

otherwise adopted or approved by him.” 18 U.S.C.

§ 3500(e)(1). Defendants point out that, pursuant to the

local rules, a defendant must submit his own version of the

offense for the presentence report, or approve or adopt the

government’s version. Thus, according to defendants, the

versions of offenses are statements under Jencks, and the

government must produce them upon request after direct

examination, to the extent that they relate to the testimony

of the witness.

We are not persuaded by defendants’ argument. First, we

have long recognized “the critical importance of maintaining

the confidentiality of presentence reports.” United States v.

Cyphers, 553 F.2d 1064, 1069 (7th Cir. 1977). As we noted in

United States v. Corbitt, 879 F.2d 224, 229-30 (7th Cir.

1989), it is essential for district courts to receive full

disclosure of information relevant to sentencing, especially

considering the role presentence reports play in guidelines

sentencing, and the defendant may not be as forthcoming

with information if he knows that his spurned confederates

will have access to the report. Defendants point out that

this “free flow of information” rationale may be less compel-

ling when the witness publicly testifies about information

in the report, but sources other than the defendant contrib-

ute to the report, and those sources may be less willing to

take the risks associated with exposure than the defendant

Nos. 01-2493, et al. 9

who agrees to testify for the government at trial. Moreover,

presentence reports may contain information relevant to

ongoing criminal investigations, and the government has a

strong interest in preventing disclosures that could tip off

unindicted coconspirators or otherwise compromise such

investigations. Corbitt, 879 F.2d at 235. The concern about

compromising investigations is particularly significant with

a cooperating witness like Allen, who pleaded guilty to

offenses based on his central role in a sprawling drug

conspiracy, provided the government with a trove of

information that led to the indictments of dozens of young

men, and testified against his former associates in at least

two trials. United States v. Trennell, 290 F.3d 881 (7th Cir.

2002).

In addition, presentence reports are not statements of the

defendant within the meaning of Jencks. They are reports

prepared by probation officers used primarily as an aid to

district courts at sentencing, and what defendants would

characterize as adoption (within the meaning of Jencks) of

the government’s version of the offense is usually little

more than failing to submit their own version of the offense

or failing to object to the probation officer’s version. Finally,

as noted by the Second Circuit, it is difficult to argue that

Congress intended for the Jencks Act to mandate routine

disclosure of presentence reports to third parties when

defendants did not even have access to their own

presentence reports until 20 years after the enactment of

the Act:

The Jencks Act was enacted in 1957. At that time, dis-

closure of presentence reports was even more restricted

than it is now. Indeed, it was not until 1975 that

defendants were entitled to see their own presentence

reports as a matter of right. It would be ironic to hold

that Congress, almost two decades earlier, intended the

Jencks Act to require the routine release of such reports

to third parties.

10 Nos. 01-2493, et al.

United States v. Moore, 949 F.2d 68, 71 (2d Cir. 1991) (cita-

tion omitted). Accordingly, we join the other circuits that

have considered this issue, United States v. Jackson, 978

F.2d 903, 909 (5th Cir. 1993); United States v. Moore, 949

F.2d 68, 71 (2d Cir. 1991); United States v. Dansker, 537

F.2d 40, 60 (3d Cir. 1976), and conclude that the Jencks Act

does not require routine disclosure of presentence reports to

third parties.

This conclusion does not deprive defendants of access to

cooperating witnesses’ presentence reports in every case. If

a defendant suspects that a presentence report contains

Brady material, he may request that the district court

conduct an in camera review of the report to determine if

his suspicions are warranted. United States v. Anderson,

724 F.2d 596, 598 (7th Cir. 1984). That procedure was

requested by the defendants in this case and performed by

the district court. The district court subsequently released

information on Allen’s financial condition contained in the

report and refused to disclose the remainder of Allen’s re-

port or the other cooperating defendants’ reports because

they did not contain impeachment or exculpatory material.

The district court thus fulfilled its duty and afforded

defendants their rights. Accordingly, we reject defendants’

arguments that their trial rights were compromised by the

district court’s failure to order disclosure of the entirety of

the “versions of offenses” portions of the presentence reports.

2. Cross-examination of Allen

Defendants’ next argument centers on the limits placed

on their cross-examination of Allen. According to defendants,

the district court viewed the cross-examination of Allen “as

an exercise in futility and a waste of time” and “imposed

blunt-edged, arbitrary limits on defense cross-examination

by forcing defendants to accept the cross-examination of

[Allen] by one defense lawyer.” Def.’s Joint Brief at 17. Speci-

Nos. 01-2493, et al. 11

fically, defendants assail the district court for limiting their

cross-examination of Allen with regard to two handwritten

letters he sent to the prosecutor prior to his sentencing and

prior to his testimony in the instant case. In the letters,

Allen assures the prosecutor that he is “not a bad person,”

that he is “riding with the government 100%,” and that he

knows enough information so that “we can make arrange-

ments for [Allen] to go home.” He also reminds the prosecu-

tor that he has children that need him and that his mother

is sick, and adds that the prosecutor “seems like a very nice,

understanding woman.” The district judge initially per-

mitted Ector’s attorney to question Allen about the letters,

but sustained a subsequent government objection to

questions about the letters because he already had granted

Ector’s counsel “a lot of leeway” and “the subject [was] com-

pletely exhausted.” Tr. 1306, 1317-18. Attorneys for Banks,

Smith, Keith McGee, Flozell McGee, McKinzie, and King

were not permitted to cross-examine Allen about the letters.

According to defendants, that ruling by the district court

denied them their Sixth Amendment right to confront and

cross-examine Allen about his biases and motivations for

testifying. In response, the government asserts that the

letters were inadmissible hearsay evidence and that even if

the letters were not hearsay, any error by the district court

was harmless.

The Confrontation Clause of the Sixth Amendment guar-

antees the right of a criminal defendant “to be confronted

with the witnesses against him.” U.S. CONST. amend. VI.

The clause protects the criminal defendant’s “right physi-

cally to face those who testify against him, and the right to

conduct cross-examination.” Pennsylvania v. Ritchie, 480

U.S. 39, 51, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). The right

to cross-examination is not unlimited; trial courts have wide

latitude “to impose reasonable limits on such cross-exami-

nation based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’

12 Nos. 01-2493, et al.

safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106

S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

We agree with the defendants that the better practice

would have been for the district court to grant each

defendant’s attorney some leeway to cross-examine Allen on

the letters to the prosecutor. Moreover, the government’s

characterization of the letters as hearsay is inaccurate; the

letters are textbook examples of impeachment evidence.

However, even if the court’s ruling amounted to a violation

of the defendants’ Confrontation Clause rights, the ruling

is subject to harmless error review. Van Arsdall, 475 U.S. at

684. The Van Arsdall Court advised courts to consider the

following factors when determining whether a Confrontation

Clause violation is harmless: “the importance of the witness’

testimony in the prosecution’s case, whether the testimony

was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness

on material points, the extent of cross-examination other-

wise permitted, and of course, the overall strength of the

prosecution’s case.” Id.

After an exhaustive review of the record, we are confident

that even if the district court erred in not allowing each

defendant’s attorney to cross-examine Allen about the let-

ters, the error was harmless beyond a reasonable doubt. Al-

though Allen was an important witness for the prosecution

and that militates in favor of defendants, other relevant

factors demonstrate that the challenged ruling was harm-

less. First, the jury was aware of the gist of the letters due to

Ector’s attorney’s cross-examination of Allen. The district

court allowed Ector’s attorney to ask Allen the following

questions about the letters:

Q. Well, in this letter, you’re saying that you want to

do more to help yourself, don’t you?

A. Exactly.

Nos. 01-2493, et al. 13

Q. And you’re saying that you just want a little time

off for cooperating; you say that, don’t you?

A. Yes, I say that.

Q. And you say you want to do it to go home, right?

A. Yes.

Q. And not do any time, right?

A. Yes.

Q. And you say, “I know you can help me. I’m not ask-

ing for anything free. I can earn mine. I just want

you to be fair, [that is] why I’m making my effort to

earn all the credit I need to go home.” You say that,

right?

A. Yes, I do.

Tr. 1257-58. After some argument over government ob-

jections, Ector’s attorney continued to cross-examine Allen

about the letters:

Q. And by writing this letter, you’re trying to convince

[the prosecutor] to help you get a low sentence so

you can go home, aren’t you? Isn’t that your pur-

pose?

A. Yes.

Q. And you’re telling—you tell her in this letter, or it’s

your feeling at this point that you’ll do anything

that you can do for the government or for her so

that you can go home, isn’t that true?

A. No, I wouldn’t do anything, but I tell the truth as

far as cooperating.

Q. Well, you talk about setting people up, don’t you?

A. Yes.

Q. You’re willing to do that?

14 Nos. 01-2493, et al.

A. Yes, that’s cooperating. That’s not doing anything.

Q. And you’re telling her that you’ll try to get other

people to work for the government, right, friends and

relatives?

A. I was explaining to her that I can get someone to do

something on my behalf to help me get a reduced

sentence.

Q. And that you’ll work as a [confidential informant]

if she lets you out and does that, right?

A. Yes.

Q. You’re really telling her you’d do almost anything to

get out of jail, right?

A. I’m not telling her I do anything [sic], I’m just let-

ting her know that I cooperate.

Q. You tell her that you don’t have a limit on what

you’d do. You tell her that, don’t you?

A. Yes.

Tr. 1260-61. Thus, even though not every attorney was per-

mitted to cross-examine on the letters, the jury heard about

the content of the letters, and Allen admitted that he wrote

the letters and acknowledged his motivations for writing

them, which casts doubt on defendants’ assumption that

further questioning on the letters would have had a devas-

tating effect on Allen’s credibility. Cf. Van Arsdall, 475 U.S.

at 677 (trial court did not allow any cross-examination of

government witness regarding government’s dismissal of an

unrelated charge in exchange for the witness’ cooperation).

Second, Allen was extensively cross-examined on bias and

motive by each defense attorney. Ector’s attorney was the

first defense attorney to cross-examine Allen, and he

hammered Allen’s credibility for approximately three hours.

Among other things, he questioned Allen about the follow-

Nos. 01-2493, et al. 15

ing topics: his practice of diluting cocaine to fool customers

and increase profits; his 1993 arrest on narcotics charges;

his immediate return to dealing drugs in violation of his

bond conditions; his cooperation with the government after

the 1993 arrest that ultimately resulted in a sentence of

40 months instead of 10 to 15 years; his return to drug

dealing about two months after his release from prison in

violation of his supervised release; his monthly bribes to a

probation officer to avoid the consequences of his dirty urine

drops; his bribes to his former employer so that the employer

would issue him paychecks and tell his probation officer

that he was still working there; his bribes to employees at

City Hall in exchange for the transfer of property rights to

him; his involvement with the Black Disciples; his “trap cars”

with secret compartments for hiding cocaine; his 1998 ar-

rest on narcotics charges; his immediate cooperation with

authorities and his willingness to turn on friends, relatives,

and other associates; his deal with the government in which

the government would recommend a 20-year sentence in

exchange for his cooperation; and the Rule 35 motion filed

by the government that could further reduce his sentence

depending on his testimony at trial. King’s attorney cross-

examined Allen about his purchase of two grenade launchers

and grenades; the mix that Allen added to dilute cocaine

and cheat his customers; his deal with government; and the

possibility that he met with the other cooperating defendants

in the Metropolitan Correctional Center (“MCC”) to coordi-

nate their testimony. Keith McGee’s attorney asked Allen

about the details of his plea agreement and his drug dealing.

Counsel for Banks cross-examined Allen on how he laundered

his drug money; the property he forfeited as part of his plea

agreement; the false monthly reports he submitted under

oath to his probation officer; the government’s failure to

prosecute him for perjury; his defrauding of a local Boys

and Girls Club; and the lies that Allen told the government

immediately after his arrest. In addition to impeaching Allen

on many of the areas already covered by other defense

16 Nos. 01-2493, et al.

lawyers, Smith’s attorney cross-examined Allen about his

fights in prison and about the fact that he had met with

prosecutor so many times that he was on a first name basis

with her.1 Flozell McGee’s attorney peppered Allen with

questions about the massive profits he made as a drug

dealer; his failure to pay taxes; and the disappearance of all

the drug money. As the foregoing summary of Allen’s cross-

examination demonstrates, the extent of cross-examination

otherwise permitted was considerable and provided defen-

dants with ample opportunity to paint a reasonably com-

plete picture of Allen from which the jury could assess his

credibility.

Finally, defendants’ arguments about the limits placed on

cross-examination run headlong into the overall strength of

the government’s case. The government supported its case

with what may be the most powerful and reliable evidence

in a drug conspiracy prosecution: tape recordings of numer-

ous phone calls between the defendants that evidenced their

extensive involvement in the illegal drug trade. Palmore,

Redding, and Tillman all provided testimony at trial that

largely corroborated the material aspects of the wiretap

evidence and Allen’s testimony. Smith took the stand in his

own defense and admitted that it was his voice on the tape

recordings. As a result, we think that the not-fully-im-

peached evidence had little or no effect on the reliability of

the factfinding process at trial.

In sum, due to Ector’s cross-examination of Allen on the

letters, Allen’s admissions about the contents of the letters,

the otherwise extensive cross-examination of Allen by all

1

In his individual brief, Smith also challenges the limitations

that the district judge imposed on his cross-examination of

Palmore and Redding. After reviewing the record, we conclude

that the limitations placed on Smith’s cross-examination of

Palmore and Redding were reasonable and did not violate Smith’s

rights under the Sixth Amendment.

Nos. 01-2493, et al. 17

defense attorneys, and the overall strength of the prose-

cution’s case, we doubt that further cross-examination on

the letters would have had an appreciable effect on the

jury’s assessment of Allen’s credibility or the outcome of the

case and conclude that any error by the district court was

harmless beyond a reasonable doubt.

3. Other Objections

Defendants raise a number of other objections to the

district court’s rulings, mainly about their attempts to re-

fresh the recollection of government witnesses and impeach

government witnesses with prior inconsistent statements.

After a careful review of the objections, we conclude that

the issues do not warrant extended discussion because the

challenged rulings, to the extent that they are erroneous, do

not individually or collectively amount to reversible error.

B. Smith’s Brief

1. Testimony from Gang Expert

Smith first challenges the district court’s denial of his

request to appoint Dr. John Hagedorn under 18 U.S.C.

§ 3006A(e), which authorizes trial courts to appoint experts for

indigent defendants if the services are “necessary for ade-

quate representation.” Smith argues that Dr. Hagedorn’s

testimony, which would have explained gang life and drug

trafficking to the jury, was necessary because it would have

independently corroborated his coercion defense and

undermined the government’s theory that Smith was dealing

drugs for the money. The district court refused to appoint

Dr. Hagedorn in a pre-trial ruling, opining that his testimony

was neither helpful nor admissible. When Smith renewed

his request to appoint Dr. Hagedorn at trial, the district

court reaffirmed its ruling, reasoning that “Dr. Hagedorn’s

testimony is just not necessary under the 700 series of the

18 Nos. 01-2493, et al.

rules of evidence, was not necessary for this jury’s consider-

ation [and] there’s been plenty of testimony about what gangs

do and what they don’t do in Chicago on the South Side.”

We review the district court’s decision for abuse of discre-

tion. United States v. Daniels, 64 F.3d 311, 315 (7th Cir.

1995).

Dr. Hagedorn, a criminal justice professor at the

University of Illinois-Chicago who has focused his scholar-

ship on inner-city youth gangs, would have testified that the

Black Disciples operate within a highly structured hier-

archy where failure to follow gang rules often results in

swift and violent penalties, including death. Leaving the

gang can be a hazardous undertaking, involving beatings

and fines. A gang member that cooperates with law en-

forcement puts himself and his family at risk of death or

serious injury. Furthermore, gangs are driven by profits

from drugs sales, and debts are taken seriously and seldom

forgiven.

Smith sought to introduce the above-recited testimony to

bolster his own testimony that he was kidnaped, beaten,

and threatened by the Black Disciples in early 1998 over a

debt he incurred by leaving the gang in 1993, effectively

coercing him to return to dealing drugs. Smith asserts that

Dr. Hagedorn’s testimony also would have explained why

Smith did not go to the police after the Black Disciples kid-

naped and threatened him. In addition, Smith maintains

that gang life and drug trafficking are beyond the ken of the

average juror. In response, the government argues that Dr.

Hagedorn’s testimony was unnecessary under 18 U.S.C.

§ 3006A(e) because the jury already had heard similar tes-

timony from a number of witnesses. We agree with the

government.

First, we doubt that the substance of Dr. Hagedorn’s testi-

mony was beyond the ken of the average juror. Most jurors

are aware that gang members deal drugs, commit violent

Nos. 01-2493, et al. 19

acts, and react unfavorably when their misdeeds are re-

ported to authorities. Second, Dr. Hagedorn’s description of

gang life in Chicago would have been a needless rehashing

of ground covered by prior witnesses. For example, FBI

Agent Yun, the first witness called by the government,

testified that Black Disciple gang leaders may punish a

member’s violation of a gang rule by ordering that member

to be beaten, or even murdered. Allen acknowledged his

past membership and role in the Black Disciples, testified

about the violent nature of drug trafficking, and stated that

there were consequences if people owed him money. Samuel

Redding admitted that he was affiliated with the Black

Disciples and that the gang pressured him to participate in

illegal activity. Palmore acknowledged participation in the

beatings of other Black Disciple members on multiple

occasions and said that a Black Disciple gang member could

not go to the police because it could cost him his life. Smith

himself testified extensively about the modus operandi of

the Black Disciples. In light of the testimony of Agent Yun,

Allen, Redding, Palmore, and Smith about the violent and

coercive nature of the Black Disciples, Dr. Hagedorn’s

testimony was cumulative and unnecessary. The district

court did not abuse its discretion by denying Smith’s

requests to appoint Dr. Hagedorn.

2. New and Previously Undisclosed Evidence

Smith next argues that the district court erred in denying

his motion for a new trial based on newly discovered evi-

dence. This evidence consists of: (1) a statement by Larone

Brim that Allen asked Brim to “touch up” Smith for failure

to pay a debt; (2) a statement from Black Disciple Will

Carthan that Allen and his associates conducted surveil-

lance of Smith to ensure that he sold narcotics; (3) grand

jury testimony from a Black Disciple member in a related

investigation that a Chicago police officer received protec-

20 Nos. 01-2493, et al.

tion money from the gang; and (4) a statement by Charles

Jackson that he heard from Antwayne Palmore, who had

heard from a third-party, that Smith had been beaten with

a baseball bat for failing to pay a debt.

Under Rule 33 of the Federal Rules of Criminal Procedure,

a district court “may vacate any judgement and grant a new

trial if the interest of justice so requires.” To carry his

burden of showing that the interest of justice requires a

new trial, a defendant must establish that the evidence: (1)

came to his knowledge only after trial; (2) could not have

been discovered sooner had due diligence been exercised; (3)

is material and not merely impeaching or cumulative; and

(4) would probably lead to an acquittal in the event of a

retrial. United States v. Ryan, 213 F.3d 347, 352 (7th Cir.

2000). “[W]e approach such motions with great caution and

are wary of second-guessing the determinations of both

judge and jury.” United States v. DePriest, 6 F.3d 1201, 1216

(7th Cir. 1993). Accordingly, we will reverse the denial of a

motion for a new trial only upon a showing of abuse of dis-

cretion. United States v. Reed, 986 F.2d 191, 193 (7th Cir.

1993).

Every piece of evidence offered by Smith fails at least one

prong of the above-recited test. With respect to Larone

Brim’s statement that Allen asked him to “touch up” Smith

for failure to pay a debt and Will Carthan’s statement about

the Black Disciples’ surveillance of Smith’s house, Smith

fails to address why this evidence could not have been

discovered before trial. The grand jury testimony about

Black Disciple members paying protection money to the

police would have corroborated a largely unchallenged and

unsurprising portion of Smith’s testimony—that gang

members seek to mitigate the risks associated with their

unlawful behavior by bribing unscrupulous police officers.

It is not the sort of evidence that warrants a new trial.

Finally, we doubt that Jackson’s statement that Smith was

beaten with a bat would lead to an acquittal in the event of

Nos. 01-2493, et al. 21

a retrial. Even though the evidence would corroborate a

portion of Smith’s testimony, a jury would probably still re-

ject his coercion defense because of his admittedly extensive

involvement with Allen’s drug group and because of his

failure to permanently flee the area or seek the assistance

of authorities. The district court did not abuse its discretion

in denying Smith’s motion for a new trial.

3. MCC Phone Call Recording

Smith also challenges the trial court’s ruling allowing the

government to play the recording of a phone call that Smith

made to his employer while he was in federal custody at the

MCC. Smith telephoned his supervisor at the Illinois

Department of Transportation to explain his sudden absence

from work and told him that a relative from out of state had

been murdered and that Smith had to retrieve the children

and deal with DCFS because they were taking guardianship

of the children. Smith also called his wife from the MCC

and joked about the elaborate lie he told his boss. Consis-

tent with MCC policy, the phone calls were recorded. The

prosecution played the tape of Smith’s call to his supervisor

at the beginning of his cross-examination after the following

colloquy:

BY THE PROSECUTOR:

Q. Mr. Smith, you tell stories. You make things up on

occasion. Correct?

A. As I’m sure everyone does. People make things up

on occasion. Yes.

Q. Is that a yes, Mr. Smith?

A. Yes.

Q. And you do that, [sic] in many times, to get out of a

jam, to get out of a bind. Correct?

22 Nos. 01-2493, et al.

A. No.

Q. You don’t do it to get out of a jam?

A. No. Now, you said “many times,” sir. I’m saying

“no” to many times.

Q. Mr. Smith, we’ll start here. Have you ever made up

stories to get out of a jam?

A. Yes.

DEFENSE COUNSEL:

Judge, I’m going to object for lack of foundation.

THE COURT:

Okay. The objection—the objection is overruled.

BY THE PROSECUTOR:

Q. Have you, in fact, made up stories regarding your

situation in this case to get out a jam, Mr. Smith?

A. No.

Q. Have you ever made up a story regarding your

situation in this case to get out of a jam, Mr. Smith?

A. No.

Q. Now, Mr. Smith, after you were arrested in Decem-

ber of 1999, you placed several phone calls from the

Metropolitan Correctional Center, didn’t you?

A. Yes, I did.

Q. And you knew those calls were being recorded,

didn’t you?

A. No. I did not.

Q. You saw that big sign over the phone that told you

that those calls were being recorded, didn’t you,

Mr. Smith?

Nos. 01-2493, et al. 23

A. The phone was in the middle of a desk, sir, and

there was no sign there at all.

Q. Mr. Smith, one of the people you called was your

wife. Correct?

A. Yes.

Q. And one of the stories you told was to your em-

ployer, isn’t that correct, Mr. Smith?

DEFENSE COUNSEL:

Objection. Foundation.

THE COURT:

Overruled.

BY THE WITNESS:

A. I’m not sure what you’re talking about.

BY THE PROSECUTOR:

Q. You’re not sure what I’m talking about. Well, let me

refresh your recollection.

DEFENSE COUNSEL:

Judge, I’ve never received this. I’ve never heard it. May

we take a break for me to hear it?

THE COURT:

No. You can proceed.

Smith later moved unsuccessfully for a mistrial based on

the playing of the tape and then objected unsuccessfully

during the government’s closing when the prosecutor argued

that Smith’s coercion defense was just another story “he’d

made up to get out of a jam.” During rebuttal, the prosecutor

likened Smith’s defense to a “made-for-TV-movie,”and ar-

gued that his coercion story was “strikingly similar to the

same lie he told his boss.”

24 Nos. 01-2493, et al.

Citing Rule 608(b) of the Federal Rules of Evidence, Smith

asserts that the MCC tape was inadmissible extrinsic evi-

dence of a specific instance of conduct bearing on his char-

acter for truthfulness. Smith argues that playing the tape

devastated his credibility, and that the only remedy was a

mistrial because Smith’s defense rested on his credibility.

In response, the government maintains that the tape was

admissible extrinsic evidence of a prior inconsistent state-

ment under Fed. R. Evid. 613. The government also notes

that even if the tape was inadmissible extrinsic evidence,

Rule 608(b) does not bar questioning about the conduct, and

Smith eventually admitted that he told this story to his

employer.

We review the district court’s evidentiary rulings for abuse

of discretion. United States v. Hernandez, 330 F.3d 964, 969

(7th Cir. 2003). If we identify an error that amounts to an

abuse of discretion and a timely objection to the error was

raised at trial, we must determine if the error was harmless

under Fed. R. Crim. P. 52(a). United States v. Olano, 507

U.S. 725, 731, 113 S.Ct. 1770, 123 L. Ed. 508 (1993). If no

timely objection was raised at trial, we review the error

under the Fed. R. Crim. P. 52(b)’s plain error standard. Id.

In the instant case, the government argues that the playing

of the MCC tape should be reviewed for plain error because

Smith’s counsel failed to note the specific ground for her

objection. In the context of this case, we disagree with the

government’s position. Smith’s counsel objected twice for

lack of foundation and then objected to the prosecutor’s

suggestion to “refresh the witness’ recollection” with the

tape by saying, “Judge, I’ve never received this. I’ve never

heard it. May we take a break for me to hear it?” If the

government actually wanted to use the tape to refresh

Smith’s recollection, the proper course would have been to

play the tape for Smith outside the presence of the jury, and

Smith’s request to excuse the jury before playing the tape

would have been appropriate. United States v. Meza-Urtado,

351 F.3d 301, 303-04 (7th Cir. 2003). But the record shows

Nos. 01-2493, et al. 25

that the government used the tape to impugn Smith’s

credibility rather than refresh his recollection, which makes

the prosecutor’s “refresh the recollection” comment puz-

zling. Considering that Smith was in the dark about the

contents of the tape and that he was led astray by the

prosecutor’s “refresh the recollection” foundation, we con-

clude that Smith’s objection was sufficient and that any error

is subject to harmless error review.

Rule 608(b) provides, in relevant part:

(b) Specific instances of conduct. Specific instances

of the conduct of a witness, for the purpose of attacking

or supporting the witness’ character for truthfulness,

other than conviction of crime as provided in Rule 609,

may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning the witness’

character for truthfulness or untruthfulness . . . .

Although Rule 608(b) bars extrinsic evidence of specific

instances of conduct bearing on a witness’ character for truth-

fulness, the extrinsic evidence may still be admissible for

another reason, such as impeachment for bias, contradic-

tion, or prior inconsistent statement. United States v. Abel,

469 U.S. 45, 105 S.Ct. 465, 83 L. Ed. 2d 450 (1984). The

government argues that the tape was admissible because it

was extrinsic evidence of a prior inconsistent statement.

Under Rule 613(b), extrinsic evidence of a witness’ prior

inconsistent statement is admissible as long as the witness

is given an opportunity to explain the statement and op-

posing counsel is afforded an opportunity to question the

witness about it.

In some instances, it is difficult to distinguish between

Rule 608(b) evidence and Rule 613(b) evidence. In this case,

however, the government’s attempt to characterize the MCC

tape as Rule 613(b) evidence is unconvincing and would

amount to an end-run around Rule 608(b)’s bar on extrinsic

26 Nos. 01-2493, et al.

evidence. The First Circuit’s discussion in United States v.

Winchenbach, 197 F.3d 548 (1st Cir. 1999) helps clarify the

distinction between these rules and illustrates why the

government’s position is without merit:

In our view, Rule 613(b) applies when two statements,

one made at trial and one made previously, are irrecon-

cilably at odds. In such an event, the cross-examiner is

permitted to show the discrepancy by extrinsic evidence

if necessary—not to demonstrate which of the two is

true but, rather, to show that the two do not jibe (thus

calling the declarant’s credibility into question). In short,

comparison and contradiction are the hallmarks of Rule

613(b). . . . In contrast, Rule 608(b) addresses situations

in which a witness’ prior activity, whether exemplified

by conduct or by a statement, in and of itself casts

significant doubt upon his veracity. . . . So viewed, Rule

608(b) applies to a statement, as long as the statement

in and of itself stands as an independent means of

impeachment without any need to compare it to contra-

dictory trial testimony.

Id. at 558 (citations omitted). The force of the MCC phone

call recording was not due to a comparison of Smith’s state-

ments on the tape and his equivocations at trial. Rather,

Smith’s elaborate lie to his supervisor, in and of itself, cast

significant doubt on Smith’s character for truthfulness. For

this reason, the MCC tape falls squarely within the ambit

of Rule 608(b), and it was error for the district court to

allow the government to play the tape.

Nevertheless, we decline to reverse Smith’s conviction

because the error was harmless. United States v. Jarrett,

133 F.3d 519, 529 (7th Cir. 1998) (noting that courts do not

reverse convictions for evidentiary error unless the error

had a substantial or injurious effect on the jury’s verdict).

Smith, who was charged with and convicted of conspiracy to

distribute narcotics and the use of a telephone to facilitate

the conspiracy, took the stand in his own defense, admitted

that the government properly identified his voice on the phone

Nos. 01-2493, et al. 27

call recordings and acknowledged that he dealt cocaine and

crack with Allen from February 1998 until July 1998 (Allen

was arrested in August 1998), but maintained that he was

coerced into dealing drugs in February 1998 to pay off a

debt to the Black Disciples. Even if the government had not

played the MCC tape and the jury credited Smith’s testi-

mony that the Black Disciples pushed him back into drug

dealing in February 1998 to pay off a debt, we think that

his coercion defense is deficient as a matter of law. The

government intercepted and recorded dozens of phone calls

between Smith and Allen discussing drug transactions.

Based on our review of the record, there is neither a hint of

coercion on the tapes nor any discussion of payment of a

debt to the Black Disciples (though Allen and Smith often

discuss payment for drugs that Allen had fronted Smith).

Instead, in the tapes played to the jury and interpreted by

Allen, Smith arranges to purchase large quantities of co-

caine and crack, Tr. 1035, bickers with Allen about the

prices of the drugs, Tr. 1033-35, 1096, complains about the

quality of the drugs, Tr. 1084-85, complains that he is losing

business and profits because Allen cannot always deliver

the cocaine when the customers want it, Tr. 1099-1100, 1106,

and informs Allen that he was renting a house to “open up

shop there.” Tr. 1080. On one occasion, Smith tells Allen

that some of his customers claim that they were robbed and

that he is holding the customers at gunpoint until they pay

him. Tr. 1056-62. Although we do not foreclose the pos-

sibility of a viable coercion defense to federal narcotics

charges, we are dubious of the defense in circumstances

where the defendant engaged in numerous drug transactions

over an extended period of time, accepted the proceeds from

the drug sales, and made no effort to contact authorities or

permanently flee the area. Even if Smith’s initial step into

the drug conspiracy in 1998 was not voluntary, the only

reasonable conclusion supported by the evidence is that

Smith persisted in the illegal activity after any immediate

danger had passed and failed to permanently flee or seek

protection despite having the opportunity to do so, and this

28 Nos. 01-2493, et al.

dooms his coercion theory. United States v. Bailey, 444 U.S.

394, 410, 100 S.Ct. 624, 62 L. Ed. 2d 575 (1980) (“Under any

definition of these defenses [coercion/duress and necessity]

one principle remains constant: if there was a reasonable,

legal alternative to violating the law, ‘a chance both to re-

fuse to do the criminal act and also to avoid the threatened

harm,’ the defenses will fail.”). Consequently, we reject

Smith’s invitation to reverse his conviction on the basis of

a Rule 608(b) error.

4. Prosecutorial Misconduct

Smith next argues that he is entitled to a new trial because

the prosecutors engaged in a pattern of misconduct that

compromised the fairness of his trial. Though he provides

us with a long list of instances of prosecutorial misconduct,

he only develops arguments with regard to two of them: (1)

the government’s failure to disclose the MCC tape prior to

trial; and (2) an FBI agent’s use of sealed recordings of two

intercepted phone calls in an interview with Smith’s neigh-

bors.2 Smith moved for a mistrial based on the government’s

failure to disclose the MCC tape and moved to suppress all

of the wiretap evidence based on the FBI agent’s use of the

two sealed recordings, and the district court denied both

motions. We will defer to the district court’s judgment on

these rulings unless either decision amounted to an abuse

of discretion. United States v. Boyd, 55 F.3d 239, 242 (7th

Cir. 1995). When assessing allegations of prosecutorial mis-

conduct, we must first decide whether the government’s

2

Smith’s failure to develop arguments with respect to the other

alleged instances of misconduct results in waiver of those claims.

United States v. Andreas, 150 F.3d 766, 769 (7th Cir. 1998).

Notwithstanding the waiver problem, many of the actions that

Smith challenges, such as the prosecutor’s facial expressions when

cross-examining Smith, fall far short of prosecutorial misconduct

and had no appreciable effect on the outcome of the trial.

Nos. 01-2493, et al. 29

conduct was proper. United States v. White, 222 F.3d 363,

369-70 (7th Cir. 2000). If we conclude that the conduct was

improper, we must consider the conduct in light of the en-

tire record to determine if Smith was so prejudiced by the

improprieties that he was deprived of a fair trial. Id.

We agree with Smith that the government’s failure to dis-

close the MCC tape was improper. Smith filed a pre-trial

motion to require the government to disclose its intention

to use any Rule 404(b) or Rule 608(b) evidence at trial, and

the district court granted the motion. As explained above,

the MCC tape was Rule 608(b) evidence. Consequently, the

government should have disclosed its intention to use the

tape prior to trial. The FBI agent’s use of sealed wiretap

evidence was also ill-advised. During an interview with the

agent, Smith’s neighbors expressed doubt about the charges

against Smith because he seemed “too nice.” The agent

cleared up their doubts by playing two phone call recordings

that left no question as to Smith’s involvement in the drug

trade. The district court had previously issued an order pur-

suant to Title III that sealed the recordings and permitted

the recordings to be disclosed by court order “or to other law

enforcement agencies.” The government’s justification for

the disclosure—that the agent played the tapes in order to

develop witnesses that could identify Smith’s voice on the

recordings—strikes us as an unpersuasive, post hoc ration-

alization for the disclosure.

However, we do not punish prosecutors for government

misconduct by reversing convictions. Boyd, 55 F.3d at 241.

The appropriate focus is on whether the improprieties im-

pacted the outcome of the trial, and we will reverse only

if there is a reasonable probability that, in the absence of

the improprieties, the defendant would have been acquitted.

Id. More precisely, we will reverse only if the district court’s

answer to the question posed above was an abuse of dis-

cretion. Id. In the instant case, the improprieties identified

by Smith do not require a new trial. While the pre-trial

disclosure of the tape recordings may have hurt Smith’s

30 Nos. 01-2493, et al.

reputation with his neighbors, we fail to see how the dis-

closure had any effect at all on the outcome of Smith’s case,

considering that the neighbors did not testify at trial or

provide the government with incriminating evidence about

Smith after the disclosure. Smith does not provide the

missing prejudice link in his brief. The failure to disclose

the MCC tape, on the other hand, had some potential for

prejudice. Had the government disclosed the tape before

trial, Smith would have had the opportunity to file a motion

in limine to exclude the tape and, with the benefit of a

briefed motion, the district court may have excluded the

tape. As it turned out, the government did not disclose its

intention to use the tape, Smith objected at trial based on

limited information, and the court allowed the government

to play the tape. Nevertheless, the evidence against Smith

was overwhelming and his coercion defense was flawed. There

is no reasonable probability that pre-trial disclosure of the

tape would have led to an acquittal. The district court did

not abuse its discretion when it denied Smith’s motion to

suppress the wiretap evidence or when it denied Smith’s

motion for a mistrial based on the government’s failure to

disclose the MCC tape.

C. McKinzie’s Brief

McKinzie was charged with conspiracy to distribute co-

caine, two counts of possession with intent to distribute

specific amounts of cocaine, and two counts of using a tele-

phone to facilitate the drug conspiracy. After the district

court severed the two possession with intent to distribute

cocaine counts from the trial, McKinzie went to trial on the

conspiracy and facilitation counts. McKinzie advanced a

buyer-seller defense at trial, and the jury found him not

guilty on the conspiracy count and guilty on the two tele-

phone facilitation counts. Thereafter, McKinzie pleaded

guilty to the possession with intent to distribute counts.

Nos. 01-2493, et al. 31

McKinzie now challenges the sufficiency of the evidence

supporting the telephone facilitation convictions. Because

the government must prove the commission of the underly-

ing offense to obtain a conviction on a charge of telephone

facilitation, United States v. Iennaco, 893 F.2d 394, 396-97

(D.C. Cir. 1990) (Ginsburg, J.), and because he was acquitted

on the underlying conspiracy charge, McKinzie argues that

we must vacate his conviction on the telephone facilitation

counts. McKinzie also maintains that the government

offered no evidence that the April 11, 1998, telephone call

resulted in a drug transaction and little evidence that the

June 7, 1998, conversation led to a drug deal. United States

v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991).

To the extent that McKinzie rests his sufficiency chal-

lenge on the fact that the jury acquitted him of the underly-

ing conspiracy charge and convicted him of the compound

offense (use of a telephone to facilitate the conspiracy), his

position is foreclosed by the Supreme Court’s decision in

United States v. Powell, 469 U.S. 57 (1984). In Powell, a

case that also involved a conviction on a telephone facili-

tation count and an acquittal on an underlying conspiracy

count, the Court held that an acquittal on one count, even

if inconsistent with conviction on another count, does not

invalidate the conviction. Id. at 64-65. The Court explained

that an inconsistent verdict presents a situation where error

has occurred, but that “it is unclear whose ox has been

gored.” Id. at 65. In such situations, the defendant should

not receive a reversal as a matter of course, especially con-

sidering that the acquittal may have been the result of juror

mistake, compromise, or lenity. Id. The Court also stressed

that its holding did not leave criminal defendants like

Powell without a remedy:

[A] criminal defendant already is afforded protection

against jury irrationality or error by the independent

review of the sufficiency of the evidence undertaken by

the trial and appellate courts. This review should not be

32 Nos. 01-2493, et al.

confused with the problems caused by inconsistent

verdicts . . . . This review should be independent of the

jury’s determination that evidence on another count

was insufficient.

Id. at 67. Thus, under Powell, we review the sufficiency of

the evidence on McKinzie’s telephone facilitation conviction

independent of the jury’s acquittal on the conspiracy count.

On a sufficiency challenge, the “evidence and all reasonable

inferences that can be drawn from it must be viewed in the

light most favorable to the government.” United States v.

Gardner, 238 F.3d 878, 879 (7th Cir. 2001) (citation omitted).

“The test is whether, after viewing the evidence, ‘any ra-

tional trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’ ” United States v.

Jackson, 300 F.3d 740, 747 (7th Cir. 2002) (quoting Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d

560 (1979)) (emphasis in original).

Section 843(b) prohibits the knowing or intentional use of

a telephone “in committing or in causing or facilitating the

commission of any act or acts constituting a felony [under

subchapter I or II of the Comprehensive Drug Abuse

Prevention and Control Act].” 21 U.S.C. § 843(b). McKinzie’s

sufficiency challenge centers on whether his phone con-

versations with Allen on April 11, 1998, and June 7, 1998,

facilitated the commission of the conspiracy, the charged

underlying offense. We give the term “facilitate” its ordinary

meaning: “to make easier.” United States v. Binkley, 903 F.2d

1130, 1134-36 (7th Cir. 1990). Viewing the evidence in the

light most favorable to the government, we believe that the

jury was entitled to conclude that both phone conversations

facilitated drug transactions and the drug conspiracy.3 Dur

3

We reach this conclusion despite our agreement with McKinzie

that the government’s evidence against him on the conspiracy

count was very weak. A customer like McKinzie can facilitate a

(continued...)

Nos. 01-2493, et al. 33

ing the April 11 conversation, McKinzie told Allen, “I need

to get, uh, two and a quarter,” which Allen understood to

mean two and one-quarter ounces of cocaine. Tr. 1003. Al-

though the usual price for that quantity of drugs was $1200,

Allen agreed to lower the price to $950 to keep McKinzie as

a customer. Tr. 1003-06. Allen told McKinzie, “All right . . . .

You gonna be standing on the block. . . . I’m fitting to ride

through there.” Tr. 1003. McKinzie responded, “[o]kay, I’ll be

right there.” Tr. 1004. Allen understood that he would drive

to Normal Avenue to meet McKinzie and consummate the

drug deal. Id. A rational jury could infer that this phone

conversation, during which Allen and McKinzie discussed drug

type, quantity, price, and the location of the deal, facilitated

a drug transaction. The June 7, 1998, telephone conversa-

tion was similar. Allen asked McKinzie, “For the dollar, or

you trying to go to 125th?” McKinzie replied, “Yeah, for the

dollar,” which Allen understood as a request for two and

one-quarter ounces of crack cocaine for $1,000. Tr. 1008.

McKinzie and Allen set a location for the transaction, and

Allen called Tillman to ask him to take care of the deal.

Tr. 1927-28. Allen later testified that a drug transaction

followed the June 7 conversation with McKinzie. Tr. 1009.

Given the recorded phone conversation and Allen’s inter-

pretation of it, a rational trier of fact could have found that

the June 7 conversation facilitated a drug transaction and

the drug conspiracy. Accordingly, we reject McKinzie’s suffi-

3

(...continued)

drug conspiracy by purchasing drugs from it. United States v.

Dotson, 871 F.2d 1318, 1327 n.3 (6th Cir. 1989) (Guy, J., concur-

ring) (“[N]o court has required the government to prove that the

defendant charged with the ‘facilitating’ offense must be the one

that committed the substantive offense.”); Iennaco, 893 F.2d at

396 (“[T]o obtain a conviction on a charge of telephone facilitation,

the government must prove actual commission (by the defendant

or another person) of the alleged underlying offense”) (emphasis

added).

34 Nos. 01-2493, et al.

ciency of the evidence challenge with respect to the tele-

phone facilitation convictions.

D. Sentencing

The jury’s special verdict in this case attributed at least

5 kilograms of cocaine or 50 grams of cocaine base to the

conspiracy, which yields a base offense level of 32 under

U.S.S.G. § 2D1.1(c)(4) and qualifies defendants for a life

sentence pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) and (iii).4

Brim, who pleaded guilty, admitted to responsibility for pow-

der cocaine but denied responsibility for any crack cocaine.

At sentencing, the district court enhanced the defendants’

sentences based on factual findings regarding drug quan-

tities and obstruction of justice. Ector, King, Smith, Keith

McGee, Flozell McGee, and Brim all were assigned base

offense levels of at least 34, and their corresponding sen-

tences were all longer than they would have been based

solely on the jury verdict or their admissions. As we now

know, the district court’s factual findings violated the Sixth

Amendment. United States v. Booker, 125 S. Ct. 738 (2005).

Ector was the only defendant that raised an Apprendi

objection below, and the government has not explained how

the Sixth Amendment error in his sentencing was harmless.

Consequently, we will remand Ector’s case for resentencing.

United States v. Macedo & Contreras, 2005 WL 851501, at *6

(7th Cir. Apr. 14, 2005). Due to the forfeited Sixth Amendment

errors that increased the sentences of King, Smith, Keith

4

Ector objected to the special verdict form on the basis of

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000), arguing that the jury must make a defendant-

specific rather than an offense-specific determination as to drug

quantity. We have rejected similar arguments in the past, see, e.g.,

United States v. Smith, 308 F.3d 726, 740-41 (7th Cir. 2002), and

we decline to reconsider those decisions at this time.

Nos. 01-2493, et al. 35

McGee, Flozell McGee, and Brim, we will direct a limited

Paladino remand with respect to their sentences. Banks has

not appealed his sentence. McKinzie’s sentence was based

on the district court’s determination that he qualified as a

career offender, and we discuss below McKinzie’s challenge

to that determination.

King, Keith McGee, and Smith also argue that the district

court erred by denying them two-level reductions for being

minor participants under U.S.S.G. § 3B1.2. This is not a

Booker issue because a role in the offense adjustment would

reduce a defendant’s sentence, not enhance it. United States

v. Miller, 2005 WL 949086, at *5 (7th Cir. Apr. 20, 2005). To

show that a role adjustment is warranted, a defendant must

establish that he was substantially less culpable than the

average participant. U.S.S.G. § 3B1.2, Application Note 3.

We review a district court’s decision to deny a defendant a

downward adjustment for a minor role in an offense for

clear error. United States v. Rodriguez-Cardenas, 362 F.3d

958, 959 (7th Cir. 2004).

This was an unusual case in the sense that the principal

conspirators cooperated with the government and testified

against their underlings, a reverse of the more typical si-

tuation where the subordinates turn on the principals. In

addition, the principals—Allen, Palmore, Samuel Redding,

and Irving Tillman—were prosecuted in a separate indict-

ment. King, Keith McGee, and Smith were undoubtedly less

culpable than Allen, Palmore, Redding, and Tillman. King,

for example, was described by Allen as a “gofer” who

received about $500 per kilogram sold when the operation

was clearing a profit of approximately $31,000 per kilo-

gram. Keith McGee was a middleman, buying drugs from

the operation, selling drugs to customers, and delivering the

customer’s money to the operation. Smith engaged in

numerous drug transactions with Allen for relatively large

quantities of cocaine and crack, and probably has the weakest

argument for a minor role adjustment among the three

36 Nos. 01-2493, et al.

defendants. Unfortunately for King, Keith McGee, and Smith,

the fact that they were less culpable than people like Allen

and Palmore does not establish that they are entitled to a

minor role adjustment. Defendants must be substantially

less culpable than the average participants in the conspir-

acy, not substantially less culpable than the leaders of the

conspiracy. This was a wide-ranging drug conspiracy, and

King, Keith McGee, and Smith all played roles that could be

fairly described as average. Moreover, the role in the

offense adjustment is a fact-intensive inquiry that the

district court is best suited to address in the first instance,

especially after becoming intimately acquainted with the

roles of the members of a drug conspiracy during a three-

week trial. United States v. Mojica, 185 F.3d 780, 790-91

(7th Cir. 1999). Because the record does not convince us that

the district court clearly erred when it found that King,

Keith McGee, and Smith were not substantially less culp-

able than the average participants in the conspiracy, we

affirm the finding.

In his sentencing brief, King maintains that other

defendants with similar roles in the conspiracy fared better

with their ultimate sentences than he did, undercutting the

guidelines’ goal of uniformity in sentencing. This is a credible

argument, given that King, Allen’s “gofer,” was sentenced

to 360 months, which is more than ten years longer than

the highest sentence of the other defendants that went to

trial, and the same sentence that a high-ranking conspirator

received in a related prosecution. United States v. Trennell,

290 F.3d 881 (7th Cir. 2002) (affirming 360-month sentence

of defendant after jury conviction on basis of Allen’s testi-

mony; defendant had withdrawn guilty plea after govern-

ment recommended doubling his sentence compared to other

conspirators); 18 U.S.C. § 3553(a)(6) (directing district

judge’s to consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who

have been found guilty of similar conduct.”). Nonetheless,

Nos. 01-2493, et al. 37

we think that this argument is best directed to the district

court on limited remand, particularly considering that

King’s sentence was at the bottom of the applicable sentenc-

ing range and the district judge may have imposed a

different sentence had he known the guidelines were merely

advisory.

McKinzie’s 210-month sentence was driven by the district

court’s determination that three prior state court drug con-

victions qualified him as a career offender under U.S.S.G.

§ 4B1.1. Without the career offender enhancement, McKinzie

would have had an adjusted offense level of 30 and a

category III criminal history for a sentencing range of 121-

151 months. McKinzie argues that he cannot be considered

a career offender because his state court convictions are re-

lated to his federal convictions. United States v. Garecht,

183 F.3d 671, 675 (7th Cir. 1999). The district court rejected

his argument and sentenced him as a career offender. As-

suming that the court relied on appropriate sources in making

the determination, we see no error in the district court’s

conclusion that the state court convictions were unrelated to

the federal convictions and qualify McKinzie as a career

offender. The caveat about the sources is important after

the Supreme Court’s recent decision in Shepard v.

United States, 125 S. Ct. 1254 (2005), where the Court held

that sentencing courts may not look to police reports or com-

plaint applications to determine whether an earlier guilty

plea for burglary amounted to a “generic burglary” that

counts as a “violent felony” under the Armed Career

Criminal Act. See 18 U.S.C. § 924(e) (mandating a minimum

15-year sentence for anyone possessing a firearm after three

prior drug offenses or violent felonies). According to the

Shepard Court, later courts considering such questions are

“generally limited to examining the statutory definition,

charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” Shepard, 125 S. Ct.

38 Nos. 01-2493, et al.

at 1257. The Court’s holding applies with equal force to the

guidelines’ career offender provision, which increases a

defendant’s offense level and corresponding sentence if the

defendant, among other requirements not at issue here, has

“at least two prior felony convictions of either a crime of vio-

lence or a controlled substance offense.” U.S.S.G. § 4B1.1.

See also United States v. Ngo, 2005 WL 1023034 (7th Cir.

May 3, 2005) (ordering a limited remand where district

court considered sources that were not authorized under

Shepard in finding that defendant was a career offender).

In the instant case, it is unclear what sources the district

judge relied on to determine that McKinzie’s state convic-

tions and federal convictions were unrelated. At McKinzie’s

sentencing, the district court listened to the parties’ argu-

ments and then stated, “I reluctantly conclude that the

government is absolutely correct and that the career offender

provision needs to be applied . . . . I think it would be over-

inclusive to conclude that these other convictions . . . are

part of this relevant conduct.” McKinzie Sentencing Tr. at 22.

McKinzie attached the state court plea transcripts to his

sentencing memorandum, which are sources of “conclusive

significance” under Shepard, and those transcripts may be

enough to establish that McKinzie’s state convictions were

unrelated to his federal convictions. R. 509; Shepard, 125

S.Ct. at 1262. However, we do not know if the district court

relied on the state court plea transcripts. Moreover, the

government referred to a police report at sentencing, which

is a source that may not be considered under Shepard.

McKinzie Sentencing Tr. at 18. Because of our uncertainty

about the sources relied on by the district court, we will

order a limited Paladino-style remand so that the district

judge can inform us if he reached his conclusion about

McKinize’s career offender status based on sources of “con-

clusive significance” under Shepard and whether he would

reimpose his original sentence had he known that the

guidelines were not mandatory. See United States v. White,

Nos. 01-2493, et al. 39

2005 WL 1023032, at *7 (7th Cir. May 3, 2005) (“[T]he mere

mandatory application of the Guidelines—the district

court’s belief that it was required to impose a Guidelines

sentence—constitutes error.”). If the judge states that he

relied on police reports or other sources that are improper

under Shepard or that he would have imposed a different

sentence had he known that the guidelines were advisory,

then we will vacate the original sentence and remand for

resentencing.

III. Conclusion

For the reasons stated herein, we AFFIRM the defendants’

convictions, VACATE and REMAND Ector’s sentence, and

order a LIMITED REMAND with regard to the sentences of

King, Smith, Keith McGee, Flozell McGee, Brim, and

McKinzie pursuant to the procedure set forth in Paladino.

40 Nos. 01-2493, et al.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-3-05