In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-3012 & 00-3228

United States of America,

Plaintiff-Appellee,

v.

Enoch Nubuor and Sulley Salami,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 98 CR 23--Robert W. Gettleman, Judge.

Argued October 22, 2001--Decided December 12, 2001 

 Before Flaum, Chief Judge, and Ripple and

Williams, Circuit Judges.

 Flaum, Chief Judge. After a joint jury

trial, Enoch Nubuor was convicted of

engaging in a conspiracy to distribute

heroin and for possession of heroin with

an intent to distribute. At the same

trial, Sulley Salami was also convicted

of engaging in a conspiracy to distribute

heroin. Nubuor and Salami have filed the

instant appeal contesting the sufficiency

of the evidence presented against them,

several of the district court’s

evidentiary rulings, and the district

court’s sentencing procedures. For the

reasons stated herein, we affirm the

convictions of both Nubuor and Salami and

the sentences imposed by the district

court.

I. BACKGROUND 

 In 1997, in an effort to penetrate and

disband a heroin ring operating in

Chicago, the FBI used a paid informant to

infiltrate a suspected drug ring’s

distribution chain. This informant

established contact with an individual

named Seth Bonsu. Over the course of

several weeks, Bonsu made numerous heroin

sales to the FBI informant. Enoch Nubuor

was present during some of the

transactions between Bonsu and the FBI

informant. On one occasion, after

completing a sale of heroin to the
government’s agent, Bonsu met with Nubuor

and entered Nubuor’s automobile. On

another occasion, on November 20, 1997,

while Bonsu made an additional sale of

heroin to the informant, Nubuor was

waiting outside Bonsu’s apartment in his

automobile.

 In December of 1997, the FBI informant

began negotiating a significantly larger

heroin deal with Bonsu. In devising this

transaction, the FBI hoped to expose the

members of Bonsu’s supply and

distribution chain. The FBI informant was

instructed to solicit the sale of six

kilograms of heroin from Bonsu. As the

deal for the larger quantity of heroin

began to take shape, Bonsu told the FBI

informant that he would be able to

provide four kilograms of heroin from

three different sources./1 Ultimately,

Bonsu and the FBI informant agreed that

the larger heroin transaction would take

place on January 14, 1998. 

 On January 13, 1998, Bonsu met with

Salami at a Chicago restaurant. During

this encounter, Salami provided Bonsu

with a sample dosage of heroin. The next

day, January 14, Bonsu called the FBI

informant at around 8:04 a.m. After this

telephone call, Bonsu immediately paged

Salami three times and called Nubuor

twice. The FBI informant and Bonsu then

met. At this meeting, Bonsu explained

that he had arranged to get four

kilograms of heroin from three separate

sources: one source would provide four

hundred grams of heroin, a second source

would supply six hundred grams, and a

third source would supply the balance.

After a request from the FBI informant,

Bonsu agreed to supply a sample dosage of

heroin.

 FBI agents arrested Bonsu just after he

gave the informant the requested sample.

After his arrest, Bonsu agreed to

cooperate with the agents and made

several tape-recorded telephone calls.

Bonsu first called a distributor named

Oyesile. In that call, Bonsu told Oyesile

to call or page him, so that Bonsu could

pick up the drugs. Oyesile responded to

Bonsu by saying, "Okay, the same thing

like Enoch, Enoch." Bonsu then told

Oyesile that he would like to receive

"one" from Nubuor; Oyesile responded,

"[y]eah, I got the same thing just like

Enoch."
 On the following day, Bonsu made a

recorded telephone call to Nubuor. In

that call, Bonsu told Nubuor that he had

been arrested and to "be careful with

yourself and the four that you said you

will give me, it is still in the foam,

remove it from there. And your friend, go

and talk to him well. They were watching

you all the while I was coming there."

Nubuor responded to these comments with

"Eh-heh." Nubuor gave the same response

when Bonsu referred to "that small thing

you gave me."/2 

 On January 16, 1998, FBI agents went to

Salami’s residence. With Salami’s

consent, the agents conducted a search of

the residence. After the search, Salami

agreed to make a statement to the FBI. In

that statement, which was later admitted

into evidence at trial, Salami admitted

to participating in the planning of the

January 14th transaction with two other

individuals, Bonsu and Biliki Brimah. In

addition, Salami admitted to having known

Bonsu for two years. However, Salami

stated that he had only discussed drug

transactions with Bonsu in the weeks

leading up to the January 14th

transaction. 

 Salami also stated that he had met Bonsu

on January 13, 1998, and on that date he

provided Bonsu with a small plastic bag

containing a sample dosage of heroin.

According to Salami, he had received the

sample of heroin from Brimah. Salami also

admitted that he had recent contacts with

Brimah and that she had been making

efforts to contact him to receive payment

for a consignment of 50 grams of heroin

which she had provided him. After making

the above statement, Salami agreed to

cooperate with the government against

Brimah. Over the next several days,

Salami made numerous telephone calls to

Brimah and also met with her. Ultimately,

Salami was able to purchase 100 grams of

heroin from Brimah./3 

 On January 23, 1998, the FBI arrested

Nubuor and conducted a consent search of

his apartment. Nubuor admitted that he

had been selling heroin at his place of

employment; however, he refused to name

the individuals who supplied him with

heroin. After searching both Nubuor’s

apartment and person, FBI agents found

5.9 grams of heroin. 
 On March 3, 1999, both Nubuor and Salami

were indicted for offenses related to the

trafficking of heroin. Count I of the

indictment charged Nubuor and Salami with

conspiring with each other and others to

distribute heroin. Nubuor was also

charged with distribution of heroin and

possession of heroin with intent to

distribute.

 During the course of the trial, after

Salami had withdrawn from cooperating

with the government’s case, the

government sought to admit Salami’s postconfession transactions with Biliki

Brimah as evidence of his participation

in the conspiracy. The district court

admitted these transactions into

evidence. At trial, pursuant to Federal

Rule of Evidence 801(d)(2), Salami sought

to admit a statement made by a prosecutor

as an admission by a party opponent. The

district court denied Salami’s motion.

 After the conclusion of the trial, both

Nubuor and Salami were found guilty of

engaging in a conspiracy to distribute

heroin. Nubuor was also found guilty of

possession of heroin with intent to

distribute. The district court then

commenced sentencing. After reviewing the

Federal Sentencing Guidelines and the

Apprendi v. New Jersey case, the district

court concluded that Nubuor was

responsible for 1.5509 kilograms of

heroin. Nubuor and Salami were then given

the respective sentences of 121 and 120

months in the penitentiary.

 In the instant appeal, both Nubuor and

Salami contest the sufficiency of the

evidence presented at trial. Both claim

that the evidence admitted against them

fails to support their convictions on

conspiracy charges. Separately, Nubuor

appeals the sentencing determinations

reached by the district court. According

to Nubuor, the district court, in holding

him responsible for 1.5509 kilograms of

heroin, committed clear error. 

 Salami contends that the district court

abused its discretion in admitting

Salami’s post-confession drug purchases.

Those purchases were offered and admitted

as evidence of Salami’s participation in

a drug conspiracy. Lastly, Salami claims

that the district court committed clear

error when it denied his motion to admit
a prosecutor’s statements as a statement

against the government’s interest.

II. DISCUSSION

 After considering the arguments raised

by both Nubuor and Salami, we find them

to be unavailing.

A. Sufficiency of Evidence

 Both Salami and Nubuor contend that the

evidence adduced at trial was

insufficient to support their convictions

for engaging in a conspiracy to

distribute heroin. Recently, this court

set forth that a drug sale in and of

"itself cannot [form the basis of a]

conspiracy, for it has no criminal

object." United States v. Torres-Ramirez,

213 F.3d 978, 981 (7th Cir. 2000).

Instead, to establish the existence of a

conspiracy, there must be an "agreement

to commit some other crime beyond the

crime constituted by the sale agreement

itself." Id. According to Nubuor and

Salami, the government failed to present

evidence at trial that could prove that

they were involved in a scheme to commit

a crime that extended beyond the buyerseller agreement.

 When examining an individual’s

participation in a conspiracy, proof of

additional crimes may be based entirely

upon circumstantial evidence. See, e.g.,

United States v. Pagan, 196 F.3d 884, 889

(7th Cir. 1999), cert. denied, 530 U.S.

1283 (2000). Factors that may be

considered, particularly in the area of

drug conspiracies, include: the length of

affiliation between the parties; the

existence of an established method of

payment; the extent to which transactions

between the parties are standardized; and

the demonstrated level of mutual trust

between the alleged participants. See

United States v. Contreras, 249 F.3d 595,

599 (7th Cir. 2000). No one

circumstantial factor will typically be

dispositive. Id. However, "[i]f enough

point in the direction of a concrete,

interlocked interest beyond the

consummation of the individual buy-sell

deals themselves, we will not disturb the

conclusion reached by the finder of fact

that at some point the association

blossomed into a cooperative venture."

Id.
 With respect to both Nubuor and Salami,

we find that ample facts were adduced at

trial to support the jury’s verdict that

both individuals engaged in a conspiracy

to distribute heroin. 

 1. Enoch Nubuor

 In its case against Nubuor, the

government presented the testimony of

Carla Evans, the girlfriend of FBI

informant, Bonsu. In her testimony, Evans

stated that she often saw Nubuor at

Bonsu’s apartment. Evans also testified

that Bonsu told her that Nubuor was his

regular supplier of drugs and that Nubuor

was to contribute quantities of heroin to

help complete the January 14 sale. This

testimony was bolstered by the fact that

Nubuor was seen (by government agents)

with Bonsu after numerous smaller drug

sales had taken place. The jury also

heard the recorded telephone calls that

Bonsu made when he was cooperating with

the government. On these tapes, in a

conversation between Bonsu and Oyesile,

Oyesile states, when speaking about the

quantity of drugs he was to furnish

Bonsu, "I got the same thing just like

Enoch." Similarly, the jury heard a

telephone call that occurred between

Bonsu and Nubuor. In that call, Nubuor

replied with an affirmative "Eh-heh" when

Bonsu told him to get rid of the "four

you said you will give me."/4 Lastly,

the jury was able to see and examine the

frequency of contacts between Nubuor and

Bonsu. Bonsu and Nubuor contacted each

other 97 times in the two months leading

up to the January 14 transaction. 

 All of the above facts, together, allow

a jury to find that Nubuor was a party to

a conspiracy. The testimony of Carla

Evans, the sightings of Nubuor at

multiple drug transactions, and the

significant amount of phone traffic

between Bonsu and Nubuor, establish that

Bonsu and Nubuor knew one another for

some time and that they worked together

comfortably. The duration of the

relationship between Bonsu and Nubuor and

the trust the two seemed to demonstrate

toward one another indicate something

more substantive and expansive than "an

arm’s length retail-type sale" of drugs.

United States v. Ferguson, 35 F.3d 327,

331 (7th Cir. 1994). When presented with

the above facts, it is clear that a
"rational trier of fact could have found

the essential elements of the crime

beyond a reasonable doubt." Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

 2. Sulley Salami

 The facts surrounding Salami’s

involvement in the January 14, 1998

heroin transaction also support his

conviction on conspiracy charges. First

and foremost, Salami admitted to federal

agents that he had known Bonsu for two

years and that he had discussed the

January 14, 1998 sale of heroin with

Bonsu. Although Salami argues that he

never discussed drugs with Bonsu prior to

the planning of the January 14

transaction, that assertion is

dramatically undercut by the facts

presented at trial. When viewed with a

critical eye, those facts indicate that

Salami and Bonsu operated with a distinct

level of trust. For example, before the

effectuation of the January 14 sale of

heroin, Salami provided Bonsu with a

sample dosage of heroin prior to receipt

of payment. Evidence of fronting, or

"providing drugs ’up front’ [and without

payment] may establish the existence of a

conspiracy because it indicates

cooperation and trust" between the

parties. Ferguson, 35 F.3d at 221.

Similarly, Bonsu used a special numerical

code when paging Salami. That code

indicated to Salami that Bonsu was

attempting to contact him. The use of

this special code indicates that both

Bonsu and Salami had a systematic way of

communicating and transacting business. 

 Salami’s post-confession drug

transactions also support the jury’s

verdict. After his arrest and confession,

Salami agreed to cooperate with

government to implicate Biliki Brimah in

the government’s investigation./5 During

the course of his cooperation, Salami

purchased up to 100 grams of heroin from

Biliki Brimah. These post-confession

transactions between Brimah and Salami

were standardized in the method of

transfer, with the drugs consistently

wrapped inside a napkin. Furthermore, the

facts support a conclusion that there was

a level of trust and familiarity between

Brimah and Salami. Brimah was willing to

"front" modest to large quantities of

drugs on Salami’s behalf, as evidenced by
her provision of a sample dosage to

Salami on January 13, 1998.

 The above facts, standing alone, support

the jury’s conclusion that Salami

participated in a conspiracy to

distribute heroin.

B. Admission of Salami’s Post-Confession

Drug Transactions

 Salami’s next contention is that the

district court abused its discretion when

it admitted Salami’s post-confession drug

transactions, which occurred while he was

working as a government agent, as

evidence of his participation in a

conspiracy to distribute heroin.

According to Salami, the district court

should have excluded those transactions

from evidence pursuant to Federal Rule of

Evidence 403. Salami’s principal argument

is that it is unfair for the government

to use evidence of his post-arrest and

post-confession actions against him

because those actions occurred while he

was cooperating with the government.

 We find that Salami’s arguments on this

issue lack merit. This circuit’s caselaw

supports the entry of a defendant’s postarrest cooperation as evidence against a

defendant, particularly after that

defendant has withdrawn from his

cooperation with the government./6 See,

e.g., United States v. Hubbard, 22 F.3d

1410, 1416-17 (7th Cir. 1994). Lastly, we

find that any prejudicial effect

attendant upon the admission of Salami’s

post-arrest actions was blunted by the

fact that Salami was afforded ample

opportunity to highlight (in both crossexamination and in closing argument) that

the disputed purchases occurred at the

direction of the government.

C. Denial of Salami’s Motion to Admit

Prosecutor’s Statements

 Salami’s next claim is that the district

court erred in excluding statements made

by a prosecutor during Bonsu’s plea

hearing. Salami offered those statements

into evidence pursuant to Federal Rule of

Evidence 801(d)(2). During the plea

hearing of Bonsu, the prosecutor stated

that Bonsu received sample dosages of

heroin from three suppliers: Oyesile,

Nubuor, and Salami. The prosecutor then

stated that Bonsu gave the sample dosages
received from Oyesile and Nubuor to the

FBI’s agent, in anticipation of the Janu

ary 14 deal. The prosecutor did not

mention what Bonsu did with the sample

dosage provided by Salami. At trial, the

government introduced evidence that

Salami admitted to providing Bonsu with a

sample dosage of heroin on January 13,

1998. In addition, Salami, in crossexamination, elicited testimony from an

FBI agent indicating that Bonsu also

passed the sample dosage received from

Salami onto the FBI informant.

 After this alleged inconsistency was

exposed, Salami attempted to introduce

the prosecutor’s statements at the Bonsu

plea hearing as a judicial admission,

pursuant to 801(d)(2). The district court

denied Salami’s motion, noting that the

prosecutor’s statements were based upon

information gleaned from Bonsu and that

it "could hardly hold what [Bonsu] said

and what the government was willing to

stipulate with Mr. Bonsu about as a

judicial admission[,] given that Mr.

Bonsu was not competent at the time." In

his appeal, Salami argues that the

district court should have admitted the

prosecutor’s statements as admissions of

a party opponent. 

 We need not address Salami’s contention

that a government prosecutor’s statements

may be admitted into evidence as a

statement of a party opponent to conclude

that, even under the most searching

review, the district court’s ruling would

amount to harmless error./7 Salami

admitted to engaging in fulsome

discussion with Bonsu regarding the

January 14 heroin transaction and

admitted that he supplied Bonsu with a

sample dosage of heroin. It would strain

the bounds of reason and logic to assume

that a jury would change its

determinations about Salami’s involvement

in the drug conspiracy, in the face of a

minor misunderstanding over what happened

to the sample dosage of heroin he

supplied to the government’s informant.

Furthermore, this is not a case where the

alleged erroneous exclusion of evidence

precluded Salami from presenting his

defense. See, e.g., United States v.

Peak, 856 F.2d 825, 834-35 (7th Cir.

1988). Therefore, we find Salami’s

arguments on this matter to be

unavailing. 
D. The District Court’s Sentencing

Determinations

 Nubuor argues that the district court

erred in determining the amount of heroin

that he was responsible for at his

sentencing. We review the district

court’s determination of drug quantity

for clear error. See United States v.

Magana, 118 F.3d 1173, 1205 (7th Cir.

1997). 

 Nubuor was sentenced pursuant to USSG

sec.1B1.3(a)(1)(B). In sentencing

pursuant to that provision, a district

court is to consider "reasonably

foreseeable acts and omissions of others

in the jointly undertaken criminal

activity." USSG sec.1B1.3(a)(1)(B).

Furthermore, in the context of drug

distribution cases, we have held that a

defendant who has conspired with others

may be sentenced for drug quantities that

he did not handle, so long as he could

reasonable foresee that the drug

transactions would occur. See United

States v. McEntire, 153 F.3d 424, 438

(7th Cir. 1998). In reviewing the

district court’s sentencing

determinations under the above standards,

we find that the district court did not

commit clear error. 

 At the sentencing hearing, the district

court determined that Nubuor was

responsible for 1.5509 kilograms of

heroin. The district court reached this

figure by first concluding that Nubuor

was responsible for the amount of heroin

found on his premises and on his person:

5.9 grams. Next, the district court

determined that Nubuor was responsible

for an additional 400 grams of heroin.

This finding was based upon Nubuor’s

recorded telephone conversation with

Bonsu, in which he acknowledged Bonsu’s

remark (the "four that you said you will

give me") with an "Eh-heh." This

conversation, coupled with the fact that

Bonsu, in his settlement proffer, stated

that Nubuor had agreed to furnish 400

grams of heroin to the January 14 heroin

deal, support the district court’s

findings.

 The district court then determined that

Nubuor and Salami "knew about each other

and their roles in the conspiracy" and

were accountable for all the heroin that

their counterpart could have foreseeably

delivered. Therefore, the district court
concluded that because Salami intended to

deliver one kilogram of heroin to Bonsu,

Nubuor should be found responsible for

that additional kilogram. Evidence

submitted at trial established that

Nubuor was aware that various parties

would contribute drug quantities to the

January 14, 1998 transaction. Nubuor’s

awareness, coupled with the fact that

"reasonable forseeability does not

require that the co-conspirator be aware

of the precise quantity in each of an

ongoing series of illegal transactions,"

support the district court’s

determinations as to the additional kilo

gram of heroin. United States v.

Scroggins, 939 F.2d 416, 423 (7th Cir.

1991).

 To reach the final sum, the district

court determined that Nubuor should be

held responsible for the quantities of

heroin that Bonsu sold to the FBI

informant, prior to the January 14th

transaction. The total quantity of drugs

sold in these transactions equals 115

grams. Evidence presented at trial

established that Nubuor was present, and

indeed was often consulted by Bonsu, when

some of these transactions were executed.

In this instance, we agree with the

district court and find that it was

reasonably foreseeable to Nubuor that

these smaller transactions would be

required to further the overall

conspiracy to sell a far larger quantity

of drugs.

E. Apprendi

 Lastly, pursuant to Apprendi v. New

Jersey, 530 U.S. 466 (2000), both Nubuor

and Salami claim that the district court

should not have been allowed to find drug

quantities by a preponderance of the

evidence, in determining base offense

levels under the Sentencing Guidelines.

This court has recently rejected the

appellants’ arguments. United States v.

Jones, 248 F.3d 671, 676-77 (7th Cir.

2001) (when ascertaining base offense

levels, a district court may determine

drug quantities by a preponderance of the

evidence). Similarly, both Nubuor and

Salami claim that Apprendi requirements

should apply to mandatory minimum

sentences. This court has expressly

rejected such an argument. United States

v. Sandoval, 241 F.3d 549, 551 (7th Cir.

2001).
III. CONCLUSION

 For the foregoing reasons, we Affirm both

the convictions and the sentences of the

appellants in the instant case.

FOOTNOTES

/1 While negotiating this larger transaction, Bonsu

had numerous phone conversations with both Nubuor

and Sulley Salami. From November 2, 1997 to

January 14, 1998, there were 97 contacts between

Bonsu and Nubuor’s telephones. Similarly, between

December 27, 1997 and January 14, 1998, Bonsu

contacted Salami’s pager 29 times. When Bonsu

paged Salami, he would use a special numerical

code.

/2 Carla Evans, Bonsu’s girlfriend at the time of

the drug transactions, later testified that

Nubuor was a regular presence at Bonsu’s apartment and that Bonsu had told her that Nubuor

regularly supplied him with heroin. Evans also

testified that Bonsu told her he was going to get

drugs from both Nubuor and Salami in order to

complete the January 14 transaction.

/3 Salami later stopped cooperating with the government.

/4 Nubuor’s statements on the recorded telephone

calls do not provide great detail into his involvement in the conspiracy to sell drugs. However, Nubuor did not demur when asked about the

heroin to be sold or when the details of the

transaction were mentioned with great specificity.

/5 In his confession, Salami admitted to receiving

50 grams of heroin from Brimah on previous drug

transactions.

/6 It should also be noted that the government did

not attempt to use Salami’s post-arrest actions

to charge him with the substantive crimes committed at the government’s behest. Rather, the

cooperative purchases of heroin were offered to

show that Salami operated with a level of trust

and comfort with heroin distributors and was,

therefore, likely to have been part of the conspiracy to distribute heroin.

/7 We note that in several other contexts this

court, in criminal cases, excludes the statements

of government agents and officers from admission

under Rule 801(d)(2). The theory behind these exclusions is that those government agents do not

have the authority to bind the United States and

are generally disinterested in the outcome of the

trial. See United States v. Zizzo, 120 F.3d 1338,
1352 n.4 (7th Cir. 1997).