United States v. Terrance Brasher

In the

United States Court of Appeals

For the Seventh Circuit

No. 18-1997

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE BRASHER,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Indiana, New Albany Division.

No. 4:15-cr-00028-TWP — Tanya Walton Pratt, Judge.

ARGUED JANUARY 8, 2020 — DECIDED JUNE 11, 2020

Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.

ROVNER, Circuit Judge. A grand jury charged Terrance

Brasher and 14 other defendants with engaging in a conspiracy

to distribute narcotics in and around the Southern District of

Indiana. See 21 U.S.C. §§ 846, 841(a)(1). Only Brasher pro-

ceeded to trial, and after hearing the government’s evidence,

a jury found him guilty. The district court ordered him to serve

2 No. 18-1997

a term of life in prison. See 21 U.S.C. § 841(b)(1)(A) (2016).

Brasher appeals, asserting that there was a material variance

between the conspiracy as charged and as proven at trial, that

the government’s proof at trial constructively amended the

indictment, that the government improperly exercised its

peremptory challenges to exclude two African American

venire members during the jury selection process, that the

prosecutor made prejudicial remarks in closing argument, that

the government made improper use of evidence obtained via

court-authorized wiretaps, and that the district court errone-

ously precluded him from challenging one of the prior narcot-

ics convictions which triggered his mandatory term of life

imprisonment. Finding no merit to any of these arguments, we

affirm Brasher’s conviction and sentence.

I.

Brasher was one spoke in a large hub-and-spoke narcotics

conspiracy centered in Louisville, Kentucky. Defendant Carlos

Shelton headed the conspiracy and was therefore at its hub.

Terry Martin, an Indiana resident whose Louisville auto

supply shop served as the de facto headquarters for the

operation, was Shelton’s partner in the criminal enterprise,

frequently pooling money with Shelton to acquire narcotics.

Maycoe Ortiz, who had a mechanic shop in Louisville, Ken-

tucky across the street from Martin’s auto shop, became a

principal supplier of narcotics for the conspiracy.

It was Martin who introduced Brasher to Shelton. Martin

knew Brasher from a previous stint of incarceration. In or

about September 2014, Martin supplied Brasher with a small

quantity of heroin. Brasher quickly sold the heroin and

No. 18-1997 3

returned to Martin asking for more. Martin did not think that

he would be able to supply Brasher with the quantities Brasher

needed, so he introduced Brasher to Shelton, and Brasher

became Shelton’s customer.

Shelton distributed narcotics to dealers in both Indiana and

Kentucky. Louisville is on the northern Kentucky border,

directly across the Ohio river from multiple southern Indiana

municipalities, including New Albany and Jeffersonville, that

are part of the greater Louisville metropolitan area. Brasher

himself lived in Louisville, Kentucky, and distributed drugs

there. After joining the conspiracy in the Fall of 2014, he

remained a participant until authorities brought it to an end

with multiple searches and arrests in December 2015. So far as

the trial record reveals, Brasher did not distribute drugs in

Indiana, took no conspiracy-related actions in Indiana, and did

not interact with any of the Indiana dealer/spokes.

As he did with other dealers, Shelton typically “fronted”

heroin, cocaine, and methamphetamine to Brasher and

accepted payment from the proceeds of Brasher’s subsequent

re-sales of the substances. Dealers, whether operating in

Indiana or Kentucky, typically came to Louisville to pick up

their drugs or drop off their payments for Shelton; occasion-

ally, Shelton would meet a dealer in Indiana. Like other

dealers, Brasher often picked up his supply of narcotics at

Martin’s auto supply shop and dropped off cash to reimburse

Shelton at the same location (Shelton had a key to Martin’s

shop). Brasher was Shelton’s most reliable dealer: He moved

relatively large quantities of narcotics and paid his debts to

Shelton on time. Shelton came to consider Brasher his “number

one customer” (R. 888 at 299) and developed “a strong relation-

4 No. 18-1997

ship based on trust with [him]” (R. 889 at 481). Brasher also on

several occasions supplied kilogram quantities of cocaine to

Shelton that he obtained from his own supplier in Texas. On

one occasion, a multi-kilogram quantity of cocaine that Brasher

had purchased with nearly $100,000 of Shelton’s money was

lost in shipment when the driver was stopped by police. Such

was Shelton’s trust in Brasher that he accepted Brasher’s

account of the incident and continued to do business with him.

A superseding indictment charged that Brasher conspired

with Shelton, Martin and others in the Southern District of

Indiana and elsewhere to distribute heroin, cocaine, and

methamphetamine in violation of 21 U.S.C. §§ 846 and

841(a)(1). As we noted at the outset, every named defendant

other than Brasher pleaded guilty. Shelton, Martin, and Ortiz

testified for the government at Brasher’s trial in January 2018,

and at the conclusion of a four-day trial, the jury convicted him

of the conspiracy charge. In its verdict, the jury specifically

found Brasher responsible for the distribution of 500 grams or

more of methamphetamine, at least one kilogram of heroin,

and five kilograms or more of cocaine.

Prior to the trial, the government filed two notices of

Brasher’s prior felony drug convictions pursuant to 21 U.S.C.

§ 851. The first notice referenced a 2000 conviction for, inter

alia, drug trafficking, and the second referenced three such

convictions in 2013. At sentencing, the district court found that

because Brasher had at least two prior felony drug convictions,

he was subject to enhanced statutory sentencing provisions

which in his case dictated a life term in prison. See 21 U.S.C.

No. 18-1997 5

§ 841(b)(1)(A) (2016).1 Based on additional testimony and wire

intercepts presented at the sentencing hearing, the district

court also found that Brasher was responsible for a murder

committed in furtherance of the conspiracy, and that finding

resulted in an offense level likewise calling for life imprison-

ment under the Sentencing Guidelines. In compliance with the

statutory mandate, the court ordered Brasher to serve a life

term.

II.

A. Variance between the indictment and the trial evidence.

Although the superseding indictment charged a conspiracy

to distribute drugs that took place in the Southern District of

Indiana and elsewhere, Brasher, as discussed above, appears

to have operated in Kentucky exclusively. This leads him to

argue that he was not involved in the larger conspiracy

encompassing Indiana and that the evidence at most estab-

lished that he was part of a separate conspiracy to distribute

narcotics solely in Kentucky. Consequently, he argues, there

was a fatal variance between the conspiracy as charged and the

proof at trial, as there was no proof that he participated in a

conspiracy to distribute drugs in the Southern District of

Indiana.

A conspiracy variance claim is essentially a challenge to the

sufficiency of the evidence underlying the conviction, United

States v. Stevenson, 656 F.3d 747, 752 (7th Cir. 2011) (citing

United States v. Womack, 496 F.3d 791, 794 (7th Cir. 2007)); and

1

Subsequent to Brasher’s sentencing, the statute was amended to eliminate

the mandatory life term. See P.L. 115-391, 132 Stat. 5194, 5220 (Dec. 21, 2018).

6 No. 18-1997

to that extent, we must, of course, examine the evidence in the

light most favorable to the government, id. If the evidence

reveals that there was actually more than one conspiracy, as

Brasher contends there was here, we will not find a fatal

variance so long as the jury could have found beyond a

reasonable doubt that among the multiple conspiracies was the

conspiracy charged in the indictment. Womack, 496 F.3d at 794

(citing United States v. Williams, 272 F.3d 845, 862 (7th Cir.

2001)); see also United States v. James, 540 F.3d 702, 706–07 (7th

Cir. 2008).

To sustain its burden of proof on the conspiracy charge, the

government was required as a general matter to show that

Brasher knowingly joined an agreement to commit a criminal

offense. United States v. Green, 648 F.3d 569, 579 (7th Cir. 2011);

United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010); United

States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009). More specifi-

cally, the government had to prove that Brasher embraced a

common criminal objective with Shelton and the other co-

conspirators—namely, the distribution of narcotics. See United

States v. Tello, 687 F.3d 785, 793 (7th Cir. 2012); Green, 648 F.3d

at 579. But Brasher did not need to know every member of the

conspiracy nor did he need to participate in every act of the

conspiracy in order to be convicted. Avila, 557 F.3d at 814;

James, 540 F.3d at 707–08. As long as he was aware of the aim

of the conspiracy and made a knowing decision to join it, he

may be held to account for each act foreseeably committed in

furtherance of the conspiracy by another conspirator. United

States v. Thompson, 286 F.3d 950, 964 (7th Cir. 2002).

As we have noted, this was a classic hub-and-spoke

conspiracy in which there were many dealers who served as

No. 18-1997 7

spokes, interacting with certain central figures like Shelton at

the hub. To qualify as a single conspiracy, a hub-and-spoke

operation must have a “rim” connecting the spokes, namely,

“an agreement to further a single design or purpose[.]” Avila,

557 F.3d at 814 (citing United States v. Bustamonte, 493 F.3d 879,

885 (7th Cir. 2007)). Brasher agrees that, as a narcotics dealer,

he was a spoke in Shelton’s narcotics enterprise, but he

contends that there was no such rim uniting him with all of the

other dealers Shelton supplied—including in particular the

dealers in Indiana—and that consequently this was not one

conspiracy but, at a minimum, two conspiracies: one focused

on distributing drugs in Kentucky and one doing the same in

Southern Indiana.

But especially given Brasher’s particular place in the

enterprise, the jury readily could have concluded otherwise.

Brasher, repeatedly and over a substantial period of time, had

the drugs fronted to him and repaid Shelton from the proceeds

of his sales, which is one factor signaling that he had more than

a mere buyer-seller relationship with Shelton. See United States

v. Hopper, 934 F.3d 740, 755 (7th Cir. 2019); United States v.

Moreno, 922 F.3d 787, 794–95 (7th Cir. 2019). And what Brasher

was doing in these respects was no different than what other

dealers supplied by Shelton were doing, including dealers who

operated in Indiana. Indeed, on at least one occasion, Shelton

mentioned another dealer to Brasher, explaining that he

(Shelton) needed to reserve a couple of ounces for that individ-

ual from a supply of cocaine he was otherwise making avail-

able to Brasher. R. 888 at 369–70. More than that, Brasher was

not only a dealer, but occasionally a supplier to Shelton and

thus to the broader enterprise. So Brasher was necessarily

8 No. 18-1997

aware of the existence of other dealers and that the enterprise

extended beyond his own dealings with Shelton and Martin.

See Avila, 557 F.3d at 814–15. And given that he was making

multi-kilogram purchases of cocaine on Shelton’s behalf, he

would have had some idea of the scope of the conspiracy; at

the same time, his willingness to undertake such purchases

demonstrates his agreement to further the overall conspiracy.

Id. In short, Brasher was not just operating as an isolated dealer

in Kentucky. See James, 540 F.3d at 707–08.

Moreover, the distinction that Brasher attempts to draw

between the Indiana dealers and Kentucky dealers is an

artificial one, given the geographic realities of the Louisville

metropolitan area. People cross state lines as a matter of

routine, particularly in metropolitan areas, like the Louisville

metroplex, that straddle a border. As one of the government’s

witnesses, a Louisville police officer, testified at trial, “[t]here

are no boundaries in criminal activity,” and consequently it is

not uncommon for people to conspire with someone across a

river. R. 889 at 742. Thus, it is no surprise that Shelton was

supplying dealers on both sides of the Ohio river, that a

conspiracy member like Martin, for example, might live in

Indiana but operate a place of business (both legitimate and

criminal) in Louisville proper, or that the methamphetamine

supplied to conspiracy members, including Brasher, was

processed at a house on the Indiana side of the river/border

before it was distributed to Brasher and others operating on the

Kentucky side of the border. Brasher himself mentioned a trip

across the river to Indiana “to grab something for his car,” in

one of the intercepted conversations introduced at trial (R. 889

at 455); and although the record does not disclose whether that

No. 18-1997 9

trip was in any way related to the conspiracy, it illustrates the

larger point that people living on the Kentucky side of the river

do not necessarily remain there at all times. Brasher confined

his trafficking activities to Kentucky, but it would have been

reasonably foreseeable to him that other members of the

conspiracy might be trafficking narcotics in Indiana and/or

traveling to Indiana for conspiracy-related purposes. Indeed,

it is not at all unusual for conspiracies to cross state and

judicial district lines; hence, the law recognizes that such

crimes may be prosecuted in any district where one’s co-

conspirators have acted in furtherance of the conspiracy. See 18

U.S.C. § 3237(a) (venue for offenses, inter alia, committed in

more than one district may be prosecuted in any district in

which the offense was begun, continued, or completed); Hyde

v. United States, 225 U.S. 347, 356–67, 32 S. Ct. 793, 798–802

(1912) (conspirators could be tried in forum district based on

overt acts taken by unindicted co-conspirator in that district,

which rendered defendants constructively present in that

district); United States v. Wren, 363 F.3d 654, 660 (7th Cir. 2004)

(venue proper in any district wherever one overt act in

furtherance of the conspiracy was committed) (citing United

States v. Rodriguez-Moreno, 526 U.S. 275, 119 S. Ct. 1239 (1999)),

j. vacated on other grounds, 543 U.S. 1101, 125 S. Ct. 1021 (2005).

Apart from whether various co-conspirators were operating in

Indiana or across the river in Louisville, there was nothing

distinguishing the nature of their activities or dividing them

from other conspirators. This was a single conspiracy engaging

in a common aim of distributing heroin, cocaine, and metham-

phetamine in the greater Louisville area, and it would have

come as no surprise to Brasher that some dealers were traffick-

10 No. 18-1997

ing on the Indiana side of the river. As a conspirator, Brasher

may be said to have conspired with those dealers operating in

Indiana even if he never set foot there on conspiracy business.

For these reasons, the evidence was sufficient to establish

Brasher’s knowing participation in the conspiracy as charged,

one reaching into the Southern District of Indiana. There was

no fatal variance between the proof at trial and the conspiracy

alleged in the superseding indictment.

B. Constructive amendment of the indictment.

In what is largely a reprise of his variance argument,

Brasher also contends that the evidence at trial constructively

amended the indictment by establishing a conspiracy different

from the one charged, thus inviting the jury to convict him for

an offense outside the scope of the indictment returned by the

grand jury. See United States v. Cusimano, 148 F.3d 824, 829 (7th

Cir. 1998). Because Brasher first raised this issue in a post-trial

motion, our review is for plain error only. United States v.

Hughes, 213 F.3d 323, 328 & nn. 7–8 (7th Cir.), j. vacated on other

grounds, 531 U.S. 975, 121 S. Ct. 423 (2000). Judge Pratt rejected

Brasher’s argument for the same reasons she found the

evidence sufficient to sustain Brasher’s conviction for conspir-

acy, and she was correct to do so.

As discussed above, the evidence readily supports the

notion that Brasher, as charged, conspired with the other

defendants to distribute drugs in the Louisville metropolitan

area, including those portions of the metropolitan areas on the

Indiana side of the Ohio river. Any error in that regard surely

was not plain.

No. 18-1997 11

C. Batson claim.

Brasher renews his contention that the government exer-

cised its peremptory challenges on the basis of race to strike

two of the three African American members of the venire, in

violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712

(1986), with the result that his jury included only one African

American juror. Brasher did not raise his Batson claim until

after the jury was seated and sworn and the venire dismissed,

which, as he concedes, was late. See United States v. Williams,

819 F.3d 1026, 1029 (7th Cir. 2016) (“the dismissal of the venire

or the swearing of the jury is the presumptive deadline for

making Batson challenges”). The district judge nonetheless

chose to treat the claim as preserved and, after a brief hearing,

rejected the claim on its merits. We therefore treat the claim as

preserved as well, and review the trial court’s ruling for clear

error. United States v. Yarrington, 640 F.3d 772, 778 (7th Cir.

2011) (citing United States v. McMath, 559 F.3d 657, 663 (7th Cir.

2009)).

Batson calls for a three-step process when the defendant

charges that the prosecution has improperly exercised its

peremptory challenges based on race: (1) the defendant makes

a prima facie case that race was a factor in the government’s

exercise of its peremptory challenges; (2) the prosecution offers

a race-neutral reason for the challenge(s) in question; and

(3) the court considers whether the prosecution’s stated non-

discriminatory rationale is pretextual. Foster v. Chatman, 136

S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552 U.S.

472, 476–77, 128 S. Ct. 1203, 1207 (2008)). The parties’ dispute

in this case focuses on the third step of the process—pretext.

12 No. 18-1997

The government explained below that it struck the two

African American venire members, Ms. W. and Mr. H., because

Ms. W.’s brother had been charged (and acquitted) of a drug

offense, and Mr. H. had been convicted of a misdemeanor drug

offense. There is no question that this is a valid, non-discrimi-

natory rationale for striking prospective jurors. See United

States v. Lampkins, 47 F.3d 175, 178 (7th Cir. 1995) (“a prosecu-

tor may permissibly strike a prospective juror on the grounds

that close friends or relatives have been convicted of the very

crime at issue”) (collecting cases). But Brasher argued that this

non-discriminatory rationale was pretextual, in view of the fact

that the government had not used one of its remaining pe-

remptory challenges to strike Mr. M., whose brother had been

convicted of a narcotics trafficking offense. In reply, the

government acknowledged that it had accepted Mr. M., but

pointed out that it had also used a peremptory challenge to

excuse another white juror, Mr. K., who also had a brother who

had pleaded guilty to and was at that time incarcerated for a

drug offense.

Weighing the parties’ submissions, the district court

credited the government’s explanation for its strikes and

rejected Brasher’s Batson challenge:

[T]here’s no evidence before the Court, or no

argument even, that the exclusions were race

based, so the Court is going to find that the

government’s explanations are acceptable

and that they—the government’s offered

nondiscriminatory reasons for striking both

Ms. [W.] and Mr. [H.].

No. 18-1997 13

R. 887 at 24. The court reiterated its finding when it denied

Brasher’s subsequent motion for a new trial, describing the

government’s reasons for striking the two African American

venire members and one white venire member as “non-

discriminatory, reasonable, and credible, considering the

charges before the jury.” R. 828 at 13.

Brasher contends that the district court’s finding was

clearly erroneous, given that the government did not use its

proffered rationale to excuse Mr. M. Indeed, in crediting the

government’s explanation for striking Ms. W. and Mr. H., the

court did not explicitly address the government’s failure to

strike Mr. M and reconcile it with the government’s proffered

rationale for striking the African American jurors.

Before we entertain the merits of the district court’s ruling,

we must first consider whether the court committed a proce-

dural error in its handling of the Batson claim. Our two

published opinions in the Taylor case make clear that in

addressing the strikes of multiple prospective jurors, a district

court must take care to analyze each such juror individually,

and in particular to evaluate the plausibility and credibility of

the government’s proffered rationale for each strike in light of

the individual juror’s characteristics and circumstances. United

States v. Taylor, 509 F.3d 839 (7th Cir. 2007) (“Taylor I”); United

States v. Taylor, 636 F.3d 901 (7th Cir. 2011) (“Taylor II”); see also

United States v. Taylor, 277 F. App’x 610 (7th Cir. 2008) (non-

precedential decision). Taylor was a capital case in which the

defendants were charged with, inter alia, Hobbs Act robbery

and the commission of a murder in the course of that robbery.

The defense objected to the government’s use of peremptory

challenges to exclude two African American members of the

14 No. 18-1997

venire from the jury, Ms. W. and Ms. G. The objections were

addressed collectively, and in the process of overruling them,

the district court neglected to specifically consider and resolve

the strike of Ms. W. The government had given the same

general rationale for the two strikes (statements that the

panelists had given during voir dire expressing a reluctance to

impose the death penalty on an individual who had not

himself shot the victim), but the credibility of that rationale

turned on the specific answers each of the two African Ameri-

can panelists had given in response to questions by both

government and defense counsel. And when all of the relevant

questions posed to and answered by Ms. W. were examined,

it became obvious that her views on the death penalty were

comparable to those of a white panelist whom the government

had not stricken from the jury. Because the district court had

never addressed Ms. W. individually, let alone attempted to

reconcile her similarities with the seated white juror, we found

it necessary to remand the case to give the district court the

opportunity to supplement the record with its findings as to

whether the government’s stated rationale for striking Ms. W.

was credible or whether the defense had met its burden of

demonstrating that the strike was discriminatory. On remand,

the district court conducted a hearing and again rejected the

defendant’s Batson challenge. Ultimately, we reversed, con-

cluding that the rationale the government had articulated at

trial for excluding Ms. W. did not hold up to scrutiny in view

of her material similarities to the seated white juror vis-a-vis

the death penalty. See Taylor I, 509 F.3d at 844–46; Taylor II, 636

F.3d at 905–06. The government had attempted to justify

striking her after the fact with a different rationale, but we

No. 18-1997 15

declined to consider that rationale precisely because it was not

put before the district court during voir dire when the Batson

challenge was made. Id.

Brasher initially cited our opinion in Taylor II for the point

we just mentioned: that in evaluating the credibility of the

rationale for the exclusion of a prospective juror, a court must

ignore post hoc rationales never advanced when the striking of

the juror was challenged under Batson. But in the give and take

of oral argument on Brasher’s Batson claim, Brasher’s counsel

expanded his argument to posit that the district court here, as

in Taylor, failed in the first instance to address each of the

excluded African American jurors individually and to reconcile

the government’s rationale for the exclusion in light of their

individual circumstances.

We agree with Brasher that the district court’s Batson

findings would be clearer and stronger had the district court

expressly addressed the evident inconsistency between the

government’s stated reason for excluding the two African

American venire members and its decision not to exclude Mr.

M, who like them had a close family member who had been

tried on a narcotics charge. We take the opportunity to reiterate

that when one or more peremptory challenges are challenged

under Batson, the district court’s analysis should (a) address

each excluded juror individually in light of all of the material

circumstances, including similarities between the excluded

juror and seated jurors, and (b) expressly resolve any argument

as to why the proffered rationale for excluding the juror is

pretextual. But apart from the omission to do so here, this case

is materially different from Taylor, and we are not convinced

that a remand is necessary as it was in Taylor.

16 No. 18-1997

First, although Brasher challenged the exclusion of multiple

jurors and the district court addressed the excluded jurors

collectively rather than individually, just as in Taylor, this case

does not present the same need for juror-specific factual

development that Taylor did. In Taylor, it was necessary to

consider in full the answers touching upon the death penalty

that each of the excluded jurors had given during voir dire and

to compare them with the answers given by a white juror as to

whom the government had not exercised a peremptory

challenge. In this case, the material facts concerning both the

excluded and seated jurors were both known to the district

court and straightforward: Ms. W. and Mr. H., who were

African American, in one instance had a close family member

who had been charged with a narcotics offense and in the

second instance had been convicted of such an offense himself.

According to the government, they were both excluded from

the jury on that basis, as was a white member of the venire, Mr.

K, whose brother had been convicted on a drug charge. But

Mr. M., another white member of the venire whose brother had

been convicted of narcotics trafficking, was not excluded.

These facts were fully aired before the district court, and the

court (twice) rejected the notion that the government’s expla-

nation for striking Ms. W. and Mr. H. was pretextual in view

of the fact that it did not strike Mr. M.

The only thing missing from the district court’s findings, as

we have said, is a statement as to why the court was not

persuaded that the government’s acceptance of Mr. M. onto the

jury did not bespeak pretext. We could remand for that limited

purpose, but we are not persuaded that step is necessary.

No. 18-1997 17

There can be no doubt that the district court understood the

basis for Brasher’s pretext argument: Brasher’s counsel made

that clear at the time of the Batson hearing (R. 887 at 22–23);

and the government’s counsel both expressly acknowledged

not challenging Mr. M. while adding that the government had

excluded Mr. K. (R. 887 at 223). And in denying Brasher’s

motion for a new trial, the court expressly acknowledged that

it was the seating of Mr. M. that was the basis for Brasher’s

pretext argument. R. 828 at 10, 12. So we have no ground on

which to suspect that the district court overlooked and failed

to consider pretext.

In short, the pertinent facts were developed and considered

by the district court. What remains is for us to consider

whether, in light of these facts, the district court committed

clear error in finding that the government’s exclusion of the

two African American jurors was motivated by the non-

discriminatory rationale it articulated to the court rather than

their race.

In defense of the district court’s ruling (and the propriety

of the exercise of its peremptory challenges), the government

argues that Mr. M. was different from the stricken jurors in the

sense that he had disowned his brother once he learned that he

was engaged in narcotics trafficking. See R. 864 at 82–83. That

revelation—elicited by defense counsel during voir dire in

follow-up questioning of Mr. M.—gave the government reason

to believe that Mr. M. would not be sympathetic to Brasher’s

defense, or hostile to the government’s case, notwithstanding

the similar charges levied against Mr. M’s brother.

18 No. 18-1997

The problem with this explanation is that it was not voiced

in the district court and instead was articulated for the first

time on appeal. Brasher rightly argues, that the validity of the

government’s challenged peremptory challenges must stand or

fall on the reasons provided to the district court during the

Batson inquiry. See Miller-El v. Dretke, 545 U.S. 231, 246, 252, 125

S. Ct. 2317, 2328, 2332 (2005); Taylor II, 636 F.3d at 906. The

government defends its after-the-fact rationale regarding Mr.

M. by suggesting that Batson requires it only to explain its

decision to strike a given juror rather than its decision not to

strike another. We are not persuaded. It is true, of course, that

it is the decision to strike a potential juror based on race that is

prohibited by Batson, but the characteristics of venire members

that a party chooses not to strike frequently shed light on the

veracity of the party’s proffered explanations for the use of its

peremptory challenges. See Miller-El, 545 U.S. at 241, 125 S. Ct.

at 2325 (“If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar non black

who is permitted to serve, that is evidence tending to prove

purposeful discrimination to be considered at Batson’s third

step.”); Flowers v. Mississippi, 139 S. Ct. 2228, 2248 (2019)

(“Comparing prospective jurors who were struck and not stuck

can be an important step in determining whether a Batson

violation occurred.”); Taylor II, 636 F.3d at 905–06; Mahaffey v.

Page, 162 F.3d 481, 485–86 (7th Cir. 1998); see also Snyder v.

Louisiana, supra, 552 U.S. at 478, 483–84, 128 S. Ct. at 1208,

1211–12. Mr. M., like Ms. W. and Mr. H., had a family member

who was charged with a drug offense, but rather than using a

peremptory challenge to strike Mr. M as it had Ms. W. and Mr.

H, the government allowed him to be seated on the jury. So in

No. 18-1997 19

defending its decision to strike Ms. W. and Mr. H., the govern-

ment was required to offer a timely explanation not only for its

decision to strike the two African American venire members,

but also for its decision not to strike Mr. M., a white member of

the venire who otherwise appears to have been similarly

situated with the excluded African American panelists.

Because it did not do so, we put aside the government’s

belated explanation.2

Nonetheless, focusing on evidence and arguments that

were before the district court, we find no clear error in the

court’s decision to credit the government’s stated non-discrimi-

natory rationale for using its peremptories to strike Ms. W. and

Mr. H. By itself, the fact that the government chose to allow a

white venire member to be seated on the jury despite a prior

drug charge against a family member tends to suggest that the

government’s stated rationale for striking Ms. W. and Mr. H.

was not its true reason. E.g., Miller-El, 545 U.S. at 241, 125 S. Ct.

at 2325–26. But this was not the whole of the evidence before

the district court. As the government pointed out below, it had

also stricken a white venire member, Mr. K., based on a drug

charge to which his brother had pleaded guilty; and Brasher

has not challenged that this was in fact the reason Mr. K. was

2

Certainly the facts underlying the government’s belated rationale were

before the district judge, who had presided over the voir dire, and these

facts theoretically could have informed the judge’s decision that the

government did not exercise its peremptory challenges in a discriminatory

manner. But because this rationale was not argued to the district court, and

the court did not independently raise it in either of its two decisions

rejecting Brasher’s Batson challenge, we can only assume that these facts did

not influence the court’s decision-making.

20 No. 18-1997

stricken. So this was not a rationale that the government used

solely to exclude African American individuals from the jury.3

Moreover, the government did not use its peremptory chal-

lenges to exclude all African American persons on the venire:

One African American person was seated on the jury despite

the fact that the government had peremptory challenges left to

exercise, resulting in a jury that was consistent with the

demographics of the New Albany Division of the Southern

District of Indiana (where the case was tried), which has a

relatively small African American population. See United States

v. White, 582 F.3d 787, 802 (7th Cir. 2009) (sustaining denial of

Batson challenge where proffered non-discriminatory rationale

was used to strike both white and African American jurors,

one African American was seated on jury, government did not

use all of its peremptory challenges, and government had

proposed seating African American panelist as alternate);

United States v. Hendrix, 509 F.3d 362, 370–71 (7th Cir. 2007)

(sustaining denial of Batson challenge where use of proffered

rationale to exclude a white panelist as well as an African

3

The government represents on appeal that it excluded a second white

juror, Mr. B., whose uncle had a drug conviction, on the same basis. See

R. 864 at 31, 67. The government did not point this out to the district court

below (although the prosecutor may have had Mr. B. in mind when he

professed confusion as to whether it was Mr. K.’s uncle or brother who had

a narcotics conviction, see R. 887 at 22), and the court itself never mentioned

Mr. K., so presumably it did not factor into the district court’s rationale in

rejecting Brasher’s Batson challenge. Brasher does not contest that Mr. B was

excluded on this basis, however, and the government’s use of a peremptory

challenge as to Mr. B. lends further support to the notion that the govern-

ment’s use of its peremptory challenges was not animated by the race of the

stricken jurors.

No. 18-1997 21

American panelist “further illuminates the non-discriminatory

nature of the prosecution’s strikes and erodes notions of

pretext in the prosecution’s motive for the strikes”); United

States v. Griffin, 194 F.3d 808, 826 n.9 (7th Cir. 1999) (“the fact

that the Government did not challenge the other black juror

further ‘weaken[s] the argument that the Government’s strikes

were based on a motive to discriminate’”) (quoting United

States v. Hughes, 970 F.2d 227, 232 (7th Cir. 1992)); cf. Mahaffey,

162 F.3d at 484–86 (noting that where prosecution had used its

peremptory challenges to exclude all seven African American

members of venire, it was wrong to emphasize fact that

particular rationale offered to explain those strikes was also

used to strike white panelists while ignoring fact that same

rationale applied equally to other white panelists who were

seated on jury).

In evaluating whether the prosecution’s stated rationale for

striking the two African American jurors was genuine, the

district court was required to consider the totality of the

circumstances. Snyder, 552 U.S. at 478, 483–84, 128 S. Ct. at

1208, 1211–12. Here, there were objective facts that were both

inconsistent and consistent with the government’s race-neutral

explanation. And, to some extent, the court’s evaluation of

pretext depended on intangible signs of the prosecutor’s

candor. “[E]valuation of the prosecutor's state of mind based

on demeanor and credibility lies ‘peculiarly within a trial

judge's province.’” Hernandez v. New York, 500 U.S. 352, 365,

111 S. Ct. 1859, 1869 (1991) (quoting Wainwright v. Witt, 469

U.S. 412, 428, 105 S. Ct. 844, 854 (1985)). As we noted at the

outset of this discussion, the district court in this case expressly

found the prosecutor’s proffered rationale for excluding Ms.

22 No. 18-1997

W. and Mr. H. to be “non-discriminatory, reasonable, and

credible.” R. 828 at 13 (emphasis ours).

Given the deference we owe the district court on this

question, see Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n. 21,

we cannot say that the court clearly erred in giving credence to

the government and finding that its stated reason for striking

Ms. W. and Mr. H. was not pretextual. Certainly it is possible

that a different judge might have reached a different conclu-

sion based on the facts we have highlighted. But that possibil-

ity alone does not demonstrate that there was clear error

infecting the court’s resolution of the Batson objection. See

United States v. Nat’l Ass’n of Real Estate Bds., 339 U.S. 485, 495,

70 S. Ct. 711, 717 (1950); United States v. Stephens, 514 F.3d 703,

712 (7th Cir. 2008) (quoting United States v. Mendoza, 457 F.3d

726, 729 (7th Cir. 2006)). Based on the evidence before the

district court, we are not “left with the definite and firm

conviction that a mistake has been committed.” United States v.

U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948).

D. Improper remarks in closing argument.

Brasher faults the government for making two categories of

improper remarks in closing argument: (1) vouching for the

credibility of its own witnesses; and (2) appealing to regional

prejudice. Because Brasher did not object to the remarks at the

time, our review is for plain error only. E.g., United States v.

Chaparro, 956 F.3d 462, 484 (7th Cir. 2020). The remarks at issue

here were relatively innocuous, and we are not convinced they

amount to prosecutorial misconduct, let alone an obvious

manifestation of misconduct, and certainly not wrongdoing

No. 18-1997 23

raising the prospect that Brasher was denied a fair trial. See id.

(laying out the elements of plain error).

The prosecutor did not vouch for the credibility of its

witnesses. “Impermissible vouching occurs when a prosecutor

expresses her personal belief in the truthfulness of a witness,

or when a prosecutor implies that facts not in evidence lend to

a witness’s credibility.” United States v. Jones, 889 F.3d 876, 881

(7th Cir. 2018) (citing United States v. Wolfe, 701 F.3d 1206, 1212

(7th Cir. 2012)). In a portion of his closing argument addressing

the testimony of Brasher’s co-defendants, who had opted to

plead guilty and cooperate with the government, the prosecu-

tor asserted:

I think you can be confident that their testi-

mony was truthful, because it was consistent.

Everything they said was internally consis-

tent with each other, but it also reinforced

exactly what you heard in wire transcripts,

intercepts that took place in this case, court-

authorized wire intercepts.

R. 890 at 837. He went on to discuss what the recorded conver-

sations showed. And he later emphasized in rebuttal that

although the cooperating witnesses were hoping to benefit

from their testimony, they had to be truthful in order to do so.

R. 890 at 863. This is standard fare in addressing the credibility

questions posed by cooperating witnesses and does not

constitute vouching. The argument was grounded in the

evidence before the jury, and at no time did the prosecutor

claim personal knowledge of the witnesses’ veracity or imply

24 No. 18-1997

that evidence outside of the trial record confirmed their

credibility, which is the sort of vouching that is proscribed.

As for the purported appeal to regional bias, what the

government’s counsel did was invite jurors, as they evaluated

the evidence presented in the case, to use their common sense,

which counsel suggested “we Hoosiers really seem to have

more than most other folks.” R. 890 at 865. We do not take this

to be an implicit attack on Kentuckians like himself, as Brasher

seems to have construed it. The remark may reflect some bias

in favor of Hoosiers, but again, it is relatively innocuous as

these sorts of remarks go. Cf. United States v. Durham, 211 F.3d

437, 441–42 (7th Cir. 2000) (appeal to jurors’ “good Midwestern

common sense” did not constitute misconduct). Certainly it

did not unduly prejudice Brasher.

E. Procedural error with respect to section 851 notice of prior

conviction.

As we noted at the outset, Brasher was subject to an

enhanced statutory sentence of life as a result of his prior

felony narcotics convictions which were disclosed prior to the

trial in two section 851 notices filed by the government. See

§ 841(b)(1)(A) (2016) & n. 1, supra. The conviction referenced in

the first information was a conviction Brasher incurred in 2000,

based on drug trafficking activity that took place in 1998, when

Brasher was 17. (He was tried as an adult.) At the sentencing

hearing, Brasher argued for the first time that he was not the

person identified in the records of that conviction. R. 878 at

56–57, 85. See United States v. Arango-Montoya, 61 F.3d 1331,

1339 (7th Cir. 1995) (per curiam) (“it is always possible that the

government was mistaken and there was no prior conviction,

No. 18-1997 25

or that the facts alleged in the government’s information of

prior conviction are incorrect”). He made a similar challenge

to the 2013 convictions identified in the second section 851

notice, which the district court rejected on the merits. R. 878 at

89, 131. But the court did not reach the merits of his objection

to the 2000 conviction, reasoning that because the conviction

was more than five years old, Brasher could not deny the

existence of the conviction. R. 878 at 84–85. See § 851(e).4 In

actuality, Brasher was barred only from challenging the

validity of the conviction, which is not the objection he presses

here. See Arreola-Castillo v. United States, 889 F.3d 378, 385–90

(7th Cir. 2018). So the district court erred in this regard. Section

851 left Brasher free to challenge whether he was the individ-

ual convicted. Id.

There is a real question, nonetheless, whether Brasher

waived this issue. Brasher never contested the existence of this

conviction in writing, see § 851(c)(1) (defendant to file “written

response” to government’s § 851 information; district court

shall thereafter hold hearing to determine any issues raised by

response); Arreola-Castillo, 889 F.3d at 384–85; and more to the

point, the written objections he did file to the section 851

enhancement were silent on this point. R. 836. See § 851(d)(1)

(“[i]f the person files no response to the information … the

court shall proceed to impose sentence upon him as provided

4

The court did instruct the government, following the sentencing, to verify

the 2000 conviction through a check of Brasher’s fingerprints and advise the

court if there was a discrepancy suggesting that Brasher was not the

individual convicted. R. 873 at 61, 121. The record does not reveal the

outcome of any such inquiry.

26 No. 18-1997

by this part”).5 Indeed, Brasher’s sentencing memorandum

acknowledged and, seemingly, accepted, the 2000 conviction

as part of his criminal history. R. 833 at 7, 20. As a result, both

the court and the government, with no advance warning that

Brasher intended to contest the existence of this or any other

prior conviction, were forced to address Brasher’s objections on

the fly, without the opportunity to make as complete of a

record on the issue as they otherwise might have done.6 It is

Brasher who emphasizes that the government, in the face of his

objection, was required to prove the existence of his conviction

beyond a reasonable doubt, see § 851(c)(1); Arreola-Castillo, 889

F.3d at 704, and yet, ironically, it was his own tardiness in

voicing the objection that interfered with the government’s

ability to meet his challenge. Under these circumstances, his

failure to object until the sentencing hearing was underway at

the least resulted in a forfeiture, in the same way that a defen-

dant’s failure to raise a contention that he was deprived of his

constitutional rights or that a trial error occurred at a time

when the objection could be fully addressed and, if necessary,

5

The statute also requires a “timely challenge” to the government’s

information. § 851(c)(2). We have not yet decided whether the timeliness

requirement applies to any and all challenges under section 851, including

challenges to the existence of a prior conviction, although we have

acknowledged that other circuits have answered this question in the

affirmative, with the consequence that such challenges can be waived. See

United States v. Webster, 628 F.3d 343, 345 (7th Cir. 2010) (per curiam)

(collecting cases).

6

The government was able to locate a police sergeant from Louisville who

was able to identify Brasher in court as the person charged and convicted

in 2013.

No. 18-1997 27

rectified, is routinely deemed to forfeit the objection. See

generally Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660,

677 (1944) (“[n]o procedural principle is more familiar to this

Court than that a constitutional right may be forfeited in

criminal as well as civil cases by the failure to make a timely

assertion of the right …”); Puckett v. United States, 556 U.S. 129,

134, 129 S. Ct. 1423, 1428 (2009) (“[t]his limitation of appellate-

court authority [resulting from forfeiture of an objection]

serves to induce the timely raising of claims and objections,

which gives the district court the opportunity to consider and

resolve them”); see also, e.g., United States v. Barber, 937 F.3d 965,

971 (7th Cir. 2019) (forfeiture of Fourth Amendment claim);

United States v. Pankow, 884 F.3d 785, 790–91 (7th Cir. 2018)

(forfeiture of sentencing issue); United States v. Irby, 558 F.3d

651, 655 (7th Cir. 2009) (forfeiture of Confrontation Clause

objection to confidential informant’s out-of-court statements);

United States v. Jenkins, 772 F.3d 1092, 1096–97 (7th Cir. 2014)

(forfeiture of objection to criminal history calculation). We

therefore confine our review to one for plain error.

The district court’s error was not plain in the sense that

Brasher’s substantial rights were affected, see Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1904–05 (2018) (articulating

elements of plain error in sentencing context), as there can be

no real doubt that Brasher was the individual convicted in

2000. In support of the section 851 enhancement, the govern-

ment presented certified records of the 2000 conviction as well

as the 2013 convictions (which Brasher does not challenge

here). Brasher nonetheless faults the government for failing to

produce a booking photograph, fingerprint, or other evidence

in order to prove, beyond a reasonable doubt, that he was in

28 No. 18-1997

fact the person convicted in 2000. See § 851(c)(1). But courts

have recognized that certified court records are sufficient to

prove the fact of a defendant’s prior conviction beyond a

reasonable doubt. United States v. Miller, 782 F.3d 793, 800–01

(7th Cir. 2015); Arreola-Castillo, 539 F.3d at 704–05; United States

v. Jones, 700 F.3d 615, 629–30 (1st Cir. 2012) (Ripple, J.). In this

case, the certified records pertaining to the conviction (which

include both the charging document and the judgment of

conviction) collectively reflect Brasher’s name, date of birth,

and social security number; and this is not to mention

Brasher’s own acknowledgment of the conviction in his

sentencing memorandum. Looking at this evidence in the light

most favorable to the government, a rational factfinder could

readily and reasonably find beyond a reasonable doubt that

Brasher was the individual convicted. See generally Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). At no

time, either below or on appeal, has Brasher identified any-

thing which, in spite of the record evidence indicating that

Brasher was the subject of the 2000 conviction, suggests that he

was not in fact the individual convicted. He has not established

plain error. See Chaparro, supra, 956 F.3d at 468 (forfeited claim

regarding sufficiency of evidence is reviewed for manifest

miscarriage of justice, which requires showing that record is

devoid of evidence of guilt or that evidence as to key element

of offense is so tenuous that conviction would be shocking).

F. Violation of 18 U.S.C. § 2517(5) by using wiretap discussions of

murder at trial and sentencing without judicial approval.

During the investigatory phase of this case, the district

court had authorized Title III electronic surveillance of multi-

ple individuals’ phones for the stated purpose of gathering

No. 18-1997 29

evidence of narcotics trafficking. Pursuant to 18 U.S.C.

§ 2517(3) and (5), the government was authorized to introduce

the results of that surveillance into evidence at trial and at

sentencing insofar as the recordings related to the charged

narcotics conspiracy; but use of the recordings to establish an

unrelated crime required further court approval. See United

States v. Brodson, 528 F.2d 214, 215–16 (7th Cir. 1975). In the

course of the approved surveillance of phone calls between

Brasher and Shelton, the government intercepted conversations

relating to the murder of another customer/dealer of Shelton’s

with a large outstanding drug debt. Shelton recruited Brasher

to arrange the killing of that individual in order to set an

example that would frighten his other customers (several of

whom were likewise delinquent) into timely payment of their

debts to him. The government introduced evidence of these

conversations at sentencing in aggravation. And although the

government did not play any of these recorded discussions of

murder for the jury at trial, the jury was given a transcript of

a conversation from which the references to the murder were

not redacted as they should have been. Because the govern-

ment never asked the court for authorization to introduce

evidence of the murder discussions, Brasher contends that the

government violated section 2517 to his undue prejudice.

With respect to the unredacted transcript given to the jury,

any error was surely harmless. The reference to the murder in

that transcript was so coded as to be undecipherable absent

additional testimony illuminating what the discussion was

concerning.

As to the use of the recorded conversation(s) at sentencing,

we are not convinced that prior authorization was required

30 No. 18-1997

before the recording could be used. The execution of the

delinquent drug dealer was part and parcel of Shelton’s

narcotics trafficking organization. Shelton ordered the hit in

order to make an example of a deadbeat and thus ensure that

other dealers would timely pay their debts to him. In the same

way that a drug kingpin might order that a rogue subordinate

be beaten or killed in order to maintain discipline within the

organization, Shelton’s order was in furtherance of the drug

conspiracy. Had the conversations concerned an offense that

pre-dated or was unrelated to the aims and business of the

conspiracy, Brasher might have a point. But Brasher’s willing-

ness to plan and execute a murder of a fellow dealer on

Shelton’s behalf was in service of the charged drug trafficking

enterprise, and as a matter of sentencing it was highly relevant

in assessing his culpability as a participant in that enterprise.

Cf. United States v. Nicksion, 628 F.3d 368, 374 (7th Cir. 2010)

(statements by co-conspirator confessing to murder committed

when he and defendant were attempting to collect drug debt

were admissible pursuant to Fed. R. Evid. 801(d)(2)(E) as

statements made in furtherance of conspiracy).

III.

For all of the reasons given, we reject Brasher’s claims of

error and affirm his conviction and sentence.

AFFIRMED