In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-1182, 07-1190 & 07-1191

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIM BAILEY, SHANE D. WILLIAMS, AND

ORLANDO ALEXANDER,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 02-CR-10144—Joe Billy McDade, Judge.

____________

ARGUED SEPTEMBER 17, 2007—DECIDED DECEMBER 18, 2007

____________

Before FLAUM, RIPPLE, and WOOD, Circuit Judges.

FLAUM, Circuit Judge. Nettlesome issues arise when

federal authorities disassemble a drug-distribution racket.

The government must often prove its case through the

testimony of informants with a checkered past or former

members of the conspiracy that are cooperating to gain

quarter in their own cases. The defendants themselves

frequently have prior records or indiscretions, requiring

the trial court to monitor any evidence that would prove

to be unduly prejudicial. Then there is the need to prove

the conspiracy itself, an agreement that often exists

merely in a shared understanding or coordinated activity.
2 Nos. 07-1182, 07-1190 & 07-1191

This case raises all of these issues. Defendants-appellants, Shane Williams, Tim Bailey, and Orlando Alexander

appeal their convictions, which stem from their participation in a crack-distribution ring in Peoria, Illinois. The

enterprise stretched from Chicago down to Peoria, spanned

twelve years, and involved at least two street gangs—the

Black Disciples and the Vice Lords. Eventually law

enforcement caught wind of the operation, and these

prosecutions ensued. On July 21, 2004, a grand jury

returned an indictment against the defendants and, on

February 9, 2006, a jury convicted all three on most of the

counts in the indictment.

Williams stood convicted of one count of conspiracy and

two counts of distributing crack. For his involvement, the

jury convicted Bailey of one count of conspiracy and one

count of distributing more than fifty grams of crack.

Finally, the jury convicted Alexander of one count of

conspiracy and one count of distributing more than five

grams of crack. Williams and Bailey received 240 months’,

and Alexander 180 months’ imprisonment. They now

appeal, raising several issues relating to the investigation and prosecution of the offenses. Finding no error,

we affirm.

I. Background

All three defendants are members of gangs, though not

the same one. Shane Williams is a member of the Black

Disciples, a gang that began in Chicago and was eventually overseen by a man named Sylvester “Star” Mickle.

Beginning in 1989, with Mickle at the helm, the Black

Disciples developed a far-reaching drug-distribution

scheme that ran from their headquarters in Chicago down

to Peoria, Illinois. Eventually, Williams joined the operation in Peoria and, after a few years of yeoman’s work

selling crack, he came to head his own distribution net-
Nos. 07-1182, 07-1190 & 07-1191 3

work in 1996. In 1999, Mickle promoted Williams to

“minister” and Williams headed the Black Disciples’ entire

drug-distribution operations in Peoria.

Williams functioned mostly as a middleman who would

move crack from upstream distributors to downstream

Peoria dealers or users. As business boomed, Williams

was able to expand his downstream crack-distribution

business to include his brother, Bailey, and his brother’s

friend, Alexander, who were both members of a rival gang,

the Vice Lords. Throughout the 1990s and the early 2000s,

the Black Disciples and Vice Lords accounted for much

of the crack sales in Peoria. Although they initially divided

Peoria into territories, the gangs soon came to realize that

they had more to gain through cooperation than conflict;

and strict adherence to their former turf soon eroded. In

the spirit of cooperation, Williams began purchasing crack

from a Vice Lord supplier, Mario Thompson, buying

multiple ounces a week for several months until Thompson’s arrest in January 2002. Thompson also sold lesser

quantities of drugs to Alexander—quarter ounces or “eight

balls”—during the months before his arrest.

Even though he had Thompson as a supplier, Williams

continued to buy drugs from Mickle. At least once in 2002,

he and Bailey traveled to Chicago to resupply. At trial,

a government witness, John T. Williams (to our knowledge, no relation), would testify that he had seen Bailey

accompany Williams to Mickle’s father’s house on several

occasions to purchase crack. John T. Williams said that

Bailey would wait in the car during the transaction,

sometimes coming to the front door to spur Williams

along if the deal took too long. Bailey could not join

Williams inside Mickle’s father’s house because of his

different gang affiliation; the détente between the Black

Disciples and the Vice Lords only went so far.

Williams, Bailey, and Alexander worked the Taft Homes,

a government-assisted housing project run by the Peoria
4 Nos. 07-1182, 07-1190 & 07-1191

Housing Authority (“PHA”). Bailey and Alexander would

regularly sell user-quantities of crack to residents in the

Taft Homes or would serve as liaisons between interested buyers and Williams. One such buyer was Victon

Bethel, a resident of the Taft Homes who had bought

several “eight balls” of crack from Alexander during the

spring and summer of 2002. Unbeknownst to Alexander,

Bethel had become a paid informant for the Peoria

Police Department at around the same time. Bethel’s

brother was on trial for murder and Bethel wanted to

make money to pay down the legal fees. So he contacted

the Peoria Police Department to become a paid informant.

Under the guidance of the Peoria Police Department,

Bethel agreed to wear a wire and arrange sales of crack

cocaine from Alexander. On August 13, 2002, Bethel

spoke to Alexander and arranged a purchase. Later that

day, Alexander and Williams arrived at Bethel’s home

where Williams sold Bethel twenty-four grams of crack

for $900. Soon afterwards, Alexander cut out the middleman and gave Williams’ pager number to Bethel. On

August 21, 2002, Bethel called Williams to set up a sale,

but Williams directed Bethel to another seller, Adrian

Shird. Bethel met Shird later in the day and paid him

$1800 for two ounces of crack.

On August 29, 2002, the final sale occurred. Bethel

called Alexander to purchase two more ounces. After

getting in touch with Alexander, Bethel walked to the Taft

Homes and waited near his mother’s house. After a few

minutes of waiting, Bethel received a call from Williams.

Although Williams said he had not talked to Alexander,

he told Bethel that Bailey would be coming with at least

an ounce of crack. Soon enough, Bailey arrived, but

without all of the promised supply. For some reason,

Bailey was not able to complete the sale right away, and

it took some work to get the promised amount, involving

a few calls to Williams. Bailey left Bethel, only to return
Nos. 07-1182, 07-1190 & 07-1191 5

a few minutes later to say that the drugs would arrive

shortly. Bailey left again and Alexander reappeared,

remaining on the scene and even putting his cell phone

to Bethel’s ear so that Bailey could again reassure him

that the drugs would be arriving shortly. Bethel understood Alexander to be engaging in customer relations,

“making sure that [Bethel] still wanted what [he] had

asked him for.” A few hours later Bailey returned in his

car with the full two ounces—the amount that Bethel

had originally ordered from Alexander. After delivery,

Bethel paid Bailey $1800 and Alexander got into Bailey’s

car and drove off.

On January 21, 2003, the police arrested Bailey, Williams, and Alexander. During a search of Williams’

residence after his arrest, the police confiscated a pager, a

cell phone, two handguns and a digital scale. On January

21, 2004, a grand jury issued a five-count superseding

indictment against Williams, Bailey, and Alexander. Count

One charged the three with a drug conspiracy. Counts Two

through Four charged the three for their involvement

in the controlled sales to Bethel: Count Two charged

Williams and Alexander with distributing more than five

grams of crack during the August 13, 2002 sale; Count

Three charged Williams alone for distributing more

than fifty grams of crack based on the August 21, 2002

sale; and Count Four charged all three with distributing

more than fifty grams of crack based on the August 29,

2002 sale. Finally, Count Five charged Williams with

possessing a firearm in furtherance of a drug crime, based

on a gun found in his residence after his arrest.

All three plead not guilty and requested a jury trial.

Before trial, Bailey learned from the government that

the Peoria Police Department and the Drug Enforcement Agency had paid Bethel, who would be testifying at

trial. Bailey filed a motion in limine requesting Bethel’s

federal income-tax records; Bailey suspected that Bethel
6 Nos. 07-1182, 07-1190 & 07-1191

had not paid income taxes on his informant payments

and claimed that the records were necessary for effective

cross-examination. The government had told Bailey that

it did not have the records and that applicable tax-return

disclosure laws forbade production anyway. The district

court denied Bailey’s motion without elaboration. Bethel

ultimately testified at trial that he had not reported his

informant payments as income on his tax returns.

At trial, the government put forth several witnesses

against the three men. The majority of the government’s

thirteen lay witnesses were either Black Disciples or Vice

Lords; all were familiar with Peoria’s crack market and

the defendants’ involvement. As former participants in

the crack trade, the witnesses were not exactly wilting

lilies. Mario Thompson was serving a life term for crack

distribution; John T. Williams, 240 months; Martez Harris,

260 months; Ometries Barnes, 232 months; to name a few.

They testified as to their prior involvement in the drug

market, their personal drug use at the time of their

involvement, and, for those who were in prison, their

hopes of securing reduced sentences in exchange for

their testimony. On cross-examination, the defendants

questioned the witnesses at length regarding these

points and, on some occasions, pointed to inconsistencies

in their testimony or impeached them with prior inconsistent statements.

One witness was John T. Williams who testified that

he had seen several of the crack sales that Mickle had

made to Williams and recounted how Bailey would usually

wait in the car. At a sidebar, Bailey’s attorney moved

to strike the testimony. He argued that the fact that

Bailey waited in the car was prejudicial and did not

establish “any type of conspiracy.” The district court

denied the motion to strike, reasoning that it was

relevant to whether a conspiracy existed.
Nos. 07-1182, 07-1190 & 07-1191 7

Another witness was Officer James Feehan, a PHA

security guard from the Taft Homes who had once arrested Bailey for trespassing. The PHA maintained a

“trespass list,” a running tally of people that were not

allowed on PHA property. When the PHA learned that

someone on the list was on the premises of a PHA complex, they would arrest him for trespassing. Both Williams

and Bailey were on the list, but Alexander was not. On

May 28, 2002, Feehan investigated a report that Williams

and Bailey were entering the apartments of some residents

of the Taft Homes. At trial he began to testify that upon

receiving information that Bailey was in the Taft Homes,

he had arrested him. Bailey’s attorney objected to the

testimony under Rule 404, as a prior bad act. The court

admitted the testimony, reasoning that it tended to

show why Bailey would need Alexander’s help selling

drugs in the Taft Homes: Because Bailey was persona

non grata, he would need Alexander to do the leg work.

The court did not consider the prejudice to be “unreasonable . . . because all he is showing is that [Bailey] was

on the trespass list.”

On February 9, 2006, the jury returned its verdict. It

convicted all three men of conspiracy. In addition, the

jury convicted Williams and Alexander for distributing

more than five grams of crack based on the August 13,

2002 controlled sale. The jury also convicted Williams

and Bailey for the August 29, 2002 sale of more than

fifty grams of crack, but acquitted Alexander. Finally,

the jury acquitted Williams on both the August 21, 2002

sale, in which Williams passed Bethel along to Shird, and

the firearm charge.

On January 17, 2007, the district court sentenced

Williams and Bailey to 240 months’ imprisonment and

Alexander to 180 months. For Williams, the presentence

investigation report recommended a base offense level of

38. After adding two levels for firearm possession, two
8 Nos. 07-1182, 07-1190 & 07-1191

levels for using a minor to distribute drugs, and four

levels for his role in the offense, his total offense level

went up to 46. Due to his category III criminal history,

Williams’ PSR recommended life imprisonment. At sentencing, however, the court struck the firearm and

use-of-a-minor enhancements, lowering the offense level

to 42 and the minimum sentence to 360 months. Based

on mitigating factors, the court further reduced

Williams term in prison to 240 months. The three now

appeal.

II. Discussion

Williams, Bailey, and Alexander raise a number of issues

on appeal. Williams appeals both the sufficiency of the

evidence supporting his conviction and the reasonableness of his sentence. Bailey appeals the district court’s

refusal to compel production of Bethel’s tax records and

its admission of testimony concerning both his trespassing

arrest and his presence in the car during Williams’ drug

purchases. Finally, Alexander appeals the sufficiency of

the evidence linking him to the overall conspiracy. The

following sections discuss each appeal in turn.

A. Williams’ Appeal

1. The Sufficiency of the Evidence

Challenging the sufficiency of the evidence on appeal is

a “daunting task.” United States v. McCaffrey, 181 F.3d

854, 856 (7th Cir. 1999). The question is not whether

this Court considers the evidence insufficient to prove

guilt beyond a reasonable doubt. Instead, this Court

will affirm a conviction if “any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Griffin, 150 F.3d 778,
Nos. 07-1182, 07-1190 & 07-1191 9

784 (7th Cir. 1998) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)). To be irrational, a verdict must not

rest on any “evidence, regardless of how it is weighed,

from which the trier of fact could find guilt.” Id. (citing

United States v. Grier, 866 F.2d 908, 923 (7th Cir. 1989)).

An appeal does not lend itself well to challenging the

credibility of witnesses, United States v. Alcantar, 83 F.3d

185, 189 (7th Cir. 1996), as this Court construes all

evidence in the light most favorable to the government,

defers to the jury in assessing credibility, and resolves all

conflicts in the evidence in favor of the government.

Griffin, 150 F.3d at 784-85.

The jury convicted Williams of conspiring to possess

and conspiring to distribute crack cocaine and two counts

of distributing crack. Williams argues that insufficient

evidence supports the jury’s verdicts. First, Williams

argues that the government’s witnesses were “incredible

as a matter of law” because, he alleges, they were drug

users during the relevant times forming the basis for

their testimony. Second, Williams argues that the evidence surrounding the controlled buys was equivocal at

best and does not corroborate the witnesses. He

argues that the recordings are of poor quality, the witnesses who identified his voice on the tapes were not

credible, and that there is no solid evidence that he said

he would send his brother, Bailey.

i. Credibility of Government’s Witnesses

At trial, the government brought in thirteen lay witnesses, most of whom had damning things to say about

Williams. To parry the blow of their testimony, Williams

asks this Court to deem the testimony of the witnesses

who testified against him incredible as a matter of law.

Williams argues that the government’s lay witnesses

should not be believed because they were drug users at
10 Nos. 07-1182, 07-1190 & 07-1191

the time of the investigation and had ulterior motives

aside from fulfilling their civic duties.

This is a tall order, which we decline to fill. Though

undoubtedly not pillars of society, the government’s

witnesses were not unbelievable as a matter of law

by virtue of their drug use. A witness’s testimony is

incredible as a matter of law if it is “physically impossible

for the witness to [have] observe[d] that which he claims

occurred, or impossible under the laws of nature for the

occurrence to have taken place at all.” United States v.

Hunter, 145 F.3d 946, 949-50 (7th Cir. 1998) (quoting

United States v. Saulter, 60 F.3d 170, 275 (7th Cir. 1995)).

Even if the witness testifies as to a period during which he

was under the influence of drugs, a jury is entitled to

believe the witness and can discount the testimony as

it sees fit. See United States v. Blackman, 950 F.2d 420,

424 (7th Cir. 1991) (holding that just because a witness

was a drug user, the jury could believe him).

Because he cannot point to any suspended laws of

nature, Williams argues that the government’s witnesses

were unbelievable as a matter of law because they

were drug users during the relevant period of the investigation. Bethel, for example, smoked marijuana the morning of the August 29, 2002 controlled buy. John T. Williams, who testified that Bailey would always wait in

the car while Williams was inside purchasing crack,

testified that he smoked marijuana everyday during the

relevant period. Most of the other witnesses’ testimony

was, unfortunately, a variation on a theme. Because

these witnesses’ drug use coincided with the period

forming the basis of their testimony, Williams asks

this Court to exclude it.

It is probably true that witnesses who were stoned

during the relevant parts of the investigation did not

have all their wits about them, making their memories
Nos. 07-1182, 07-1190 & 07-1191 11

fuzzy when they took the stand. This could, in turn, lessen

the credence that is owed to their version of events. But

it is for the jury to evaluate the credibility of the witnesses, including any cloudiness brought on by their drug

use. United States v. Wilson, 31 F.3d 510, 514 (7th Cir.

1994) (stating that this Court will uphold conviction “even

if the evidence is ‘totally uncorroborated and comes

from an admitted liar, convicted felon, large-scale drug

dealing, paid government informant’ ” (quoting United

States v. Davis, 15 F.3d 1393, 1398 (7th Cir. 1994))). A

prophylactic rule that drug-using witnesses are per se

unbelievable would derail most drug prosecutions which

frequently involve, of necessity, the testimony of drug

users. These witnesses’ shortcomings must be accounted

for through cross-examination, not an exclusionary rule.

Accordingly, we will not upset the jury’s decision to

credit their testimony.

For similar reasons, that a witness has cooperated in

exchange for a shortened prison sentence or, in Bethel’s

case, money, does not change the outcome. Although the

use of informants is “an unattractive business,” United

States v. Kaminski, 703 F.2d 1004, 1010 (7th Cir. 1983),

it is far from an upstart; “[c]ourts have countenanced

the use of informers from time immemorial.” United States

v. Dennis, 183 F.2d 201, 224 (2d Cir. 1950) (Hand, J.).

Unveiling criminal operations in which the participants

have a strong incentive to conceal their efforts often

requires coopting those who had once engaged in the

same sordid business. Id. Motivating these informants

requires consideration, such as a shortened sentence or

cash. In some circumstances, a trial court should issue a

cautionary instruction with respect to an informant’s

testimony. See United States v. Cook, 102 F.3d 249, 254-55

(7th Cir. 1996) (Ripple, J., concurring) (collecting cases).

But this is not that case. Several witnesses detailed their

involvement with Williams in the crack trade. One wit-
12 Nos. 07-1182, 07-1190 & 07-1191

ness, Bethel, produced recordings that memorialized

some of these transactions. Further, the attorneys for all

three defendants pointed out the carrots motivating the

witnesses on cross-examination. Thus, neither the drug

use nor the use of incentives (whether viewed in isolation or in tandem) justifies excluding the testimony as

incredible.

ii. Conspiracy

After concluding that the witnesses’ testimony was not

incredible as a matter of law, Williams’ conspiracy conviction must stand. A drug conspiracy requires an “agreement

between two or more persons to possess with intent to

distribute cocaine base, the defendants’ knowledge of the

agreement, and their intention to join it.” United States v.

Billops, 43 F.3d 281, 284 (7th Cir. 1994). But the nub of

a conspiracy is an agreement, and the government can

prove the agreement by showing “an understanding—

explicit or implicit—among co-conspirators to work

together to commit te offense.” United States v.

Bustamante, 493 F.3d 879, 884 (7th Cir. 2007) (quoting

United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)).

Evidence of a conspiracy depends on the criminal endeavor. In a crack conspiracy, the evidence involves

efforts to move crack down the supply chain from the

distributor to the market (through buying, selling, finding buyers, distribution) or providing support to the

operation through force, financing, or concealment. Thus,

although no overt act is required under 21 U.S.C. § 846,

see United States v. Shabani, 513 U.S. 10, 11 (1994), this

Court has credited the purchase of large quantities of

drugs, cooperation in the distribution of drugs, regular

or standardized dealings, sales on credit, and prolonged

cooperation. See Bustamante, 493 F.3d at 884-85 (collecting cases). In proving its case, the government can rely

on both direct and circumstantial evidence.
Nos. 07-1182, 07-1190 & 07-1191 13

Aside from questioning the reliability of the government’s witnesses, Williams points to little that would

undermine his conviction. He questions the quality of the

government’s audiotapes and points to a lack of corroboration of Williams’ involvement with Bailey. But, as discussed more fully above, the evidence of his guilt is

overwhelming. Several witnesses discussed aspects of

Williams’ ascendancy and involvement in the Peoria crack

market. From 1996 to 2003, Williams ran the Black

Disciples’ crack operation in Peoria. Multiple witnesses

testified as to their personal involvement in drug transactions with Williams, often for large amounts of crack

from distributors like Mickle and Thompson. Bethel also

testified that he had purchased crack from Williams

and Alexander on August 13, 2002. This evidence is

sufficient to establish an agreement between Williams

and Alexander and Williams and Bailey to distribute

crack.

iii. Distribution Counts

Similarly, sufficient evidence supports Williams’ conviction for the August 13, 2002 and August 29, 2002 sales.

To prove a violation of 21 U.S.C. § 841(a)(1), the government must show that the defendant knowingly and

intentionally distributed crack and that the defendant

knew that the substance was crack. United States v.

Johnson, 127 F.3d 625, 628 (7th Cir. 1997). And “distribution” consists of the “transfer of possession from one

person to another.” Id. In addition, whoever “causes an

act to be done which if directly performed by him or

another would be an offense against the United States, is

punishable as a principal.” 18 U.S.C. § 2(b) (2006).

The evidence at trial supports Williams’ convictions.

First, Bethel testified that he purchased twenty-four

grams of crack directly from Williams on August 13, 2002
14 Nos. 07-1182, 07-1190 & 07-1191

after calling Alexander to set up a sale of “zip,” which

Bethel testified was a street name for crack. Audio recordings of the sale corroborated Bethel’s testimony

regarding the conversation with Alexander and the

subsequent sale by Williams and Alexander. At trial, the

government would also present photos of the transacted

substance, which Bethel had turned over to the police.

Second, Bethel testified that he purchased fifty-three

grams of crack from Bailey on August 29, 2002 after

placing an order with Williams over the phone. Again,

audio recordings corroborate Bethel’s testimony regarding

his conversations with Williams. As Williams had promised, Bailey soon arrived. When Bailey had trouble getting

Bethel the agreed-upon amount, Bailey’s and Williams’

phone records confirm that the two were in constant

contact. Ultimately, after several calls to Williams, Bailey

delivered two ounces of crack to Bethel. At trial, the

government presented pictures of the distributed substance, which Bethel had turned over to the police. In

short, Bethel ordered crack from Williams and received

it from Bailey, as Williams had promised. This is sufficient to show that Williams “cause[d]” the distribution of

crack to Bethel for purposes of 21 U.S.C. § 841 and 18

U.S.C. § 2. The evidence from the controlled buys is

thus sufficient to support Williams’ distribution convictions.

2. Reasonableness of Sentence

Finally, Williams challenges his sentence, arguing that

it is “excessive,” but the jury’s verdict forecloses this

argument. The district court rejected the PSR’s findings

that would have resulted in life in prison. It even varied

from the advisory Guidelines range requiring thirty years

in prison down to twenty. Given how central Williams

was to a decade-long drug conspiracy, a sentence that is
Nos. 07-1182, 07-1190 & 07-1191 15

ten years below the advisory Guidelines range is not

“excessive.”

B. Bailey’s Appeal

1. District Court’s Refusal to Compel Production of Bethel’s Tax Records

Bailey argues on appeal that the district court erred in

denying his request for the production of Bethel’s tax

records. Citing Brady v. Maryland, 373 U.S. 83 (1963), he

argues that the government denied his constitutional

right to exculpatory evidence and that a judgment of

acquittal is in order. The government disagrees, arguing

first that it is not clear that it could have produced the

documents at all and, second, that the defendant was not

prejudiced by the lack of the records because Bethel

admitted that he did not pay taxes on his informant

income.

It is not necessary to determine whether the district

court erred or whether the government in fact had an

obligation to track down and turn over Bethel’s tax

records. Even if it was error to not produce the tax

returns, Bailey was not prejudiced by their absence.

Nondisclosure of material exculpatory evidence can deny

an accused a fair trial. United States v. Hamilton, 107 F.3d

499, 509 (7th Cir. 1997). Evidence is material if “there

is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different.” Id. Conversely, “[e]vidence that

impeaches an already thoroughly impeached witness is

the definition of ‘cumulative impeachment’ evidence and

its suppression cannot give rise to a Brady violation.”

United States v. Kozinski, 16 F.3d 795, 819 (7th Cir. 1994).

Because the tax records would have been cumulative,

the district court did not err in refusing to order their
16 Nos. 07-1182, 07-1190 & 07-1191

disclosure. Even if Bailey had the tax records, the testimony at trial would not have changed one jot. Bailey

cross-examined Bethel on whether he had paid taxes on

his informant income. Bethel said that he had not, an

admission that would ostensibly undermine his credibility. It is thus hard to see what benefit Bailey would

have obtained by the tax records. The impeaching bell

had been rung; the tax records would not have amplified

the toll. Kozinski, 16 F.3d at 819 (stating that cumulative

evidence is not material); United States v. Dweck, 913 F.2d

365, 371 (7th Cir. 1990) (same). Because there is no

“reasonable probability” that the cumulative evidence

would have changed the outcome, it was not material

and no relief is available under Brady.

2. Testimony Regarding Bailey’s Trespass Arrest

Bailey argues that the district court erred in permitting

Officer James Feehan to testify about Bailey’s trespassing

arrest in May 2002. The district court admitted the

testimony after first concluding both that it showed why

Bailey would need Alexander to serve as a liaison in the

Taft Homes and that the probative value outweighed any

likely prejudice. On appeal, Bailey argues that the trespassing arrest is inadmissible as a prior bad act.

Even if the evidence should not have been admitted, the

error was harmless. The admission of prior bad acts

into evidence is harmless if “we are convinced that the

error did not influence the jury, or had but very slight

effect, and can say with fair assurance . . . that the

judgment was not substantially swayed by the error.”

United States v. Dennis, 497 F.3d 765, 770 (7th Cir. 2007)

(quoting United States v. Torres, 977 F.2d 321, 328 (7th

Cir. 1992)).

The admission of the trespassing arrest, if it was an

inadmissible prior bad act, did not bump the jury from an
Nos. 07-1182, 07-1190 & 07-1191 17

acquittal to a conviction. Evidence of the prior trespass

played only a minimal role in the seven-day trial. With

respect to his conviction for distribution, Bethel still

testified that Bailey brought him two ounces of crack on

August 29, 2002. This alone would establish distribution.

As for the conspiracy, the government introduced Bailey’s

phone records to show that he was in contact with Williams on August 29, 2002 to purchase crack. The phone

records then show Williams calling Bailey, and Bethel’s

testimony establishes that Bailey ultimately arrived

with the drugs. The evidence of Bailey’s guilt is overwhelming, leaving no doubt that the jury would have

reached the same decision with or without the trespassing

arrest in evidence. See United States v. Torres, 977 F.2d

321, 328 (7th Cir. 1992) (“[A]ny error would be harmless

because even without the . . . evidence the jury’s verdict

would almost certainly have been the same.”). Nor was

the trespass so damning as to have unduly prejudiced

the defendant in the eyes of the jury. Therefore, the

admission of Officer Feehan’s testimony regarding the

trespass arrests does not entitle Bailey to any relief.

3. Bailey’s Presence at the Drug Sales

Bailey also appeals the district court’s decision to

admit testimony that Bailey accompanied Williams on

trips to Mickle’s father’s house for drug sales. John T.

Williams testified that Bailey would accompany Shane

Williams to purchase crack cocaine from Mickle. He said

that Bailey would wait in the car, rather than join Williams inside because, as a Vice Lord, he was unwelcome in

the home of a Black Disciple’s father. On appeal, Bailey

argues that this evidence was not probative of the conspiracy and that it was unduly prejudicial. Bailey characterizes his behavior as innocent and argues that it shows

no involvement in the drug conspiracy.
18 Nos. 07-1182, 07-1190 & 07-1191

Federal Rule of Evidence 402 provides that all relevant

evidence is admissible. FED. R. EVID. 402. Evidence is

relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of

the action more probable or less probable than it would

be without the evidence.” FED. R. EVID. 401. Where the

admitted evidence fills a “chronological and conceptual

void” in the government’s case, it is relevant. United

States v. Pulido, 69 F.3d 192, 202 (7th Cir. 1995) (quoting

United States v. Vretta, 790 F.2d 651, 656 (7th Cir. 1986)).

A district court can exclude relevant evidence “if its

probative value is substantially outweighed by the danger

of unfair prejudice.” FED. R. EVID. 403. Unfair prejudice

occurs if the evidence “will induce the jury to decide the

case on an improper basis, commonly an emotional one,

rather than on the evidence presented.” Pulido, 69 F.3d

at 202 (quoting Vretta, 790 F.2d at 655). This calculus

falls squarely in the lap of the district court. This Court

will disturb the district court’s decision to admit evidence

only when it abuses its discretion. Id. at 201.

The district court properly admitted the testimony. The

fact that Bailey waited in the car was relevant to Bailey’s

involvement in Williams’ drug purchases. The evidence

established that Bailey was not unfamiliar with Williams’

frequent visits to Mickle’s father’s home to purchase

crack, which was the nature of the alleged conspiracy.

Bailey is correct that sitting in the car and occasionally

knocking on the door are otherwise innocent behavior.

Mere presence does not prove a conspiracy. United States

v. Saadeh, 61 F.3d 510, 525 (7th Cir. 1995). But when

viewed in the context of Williams’ drug purchases, this

evidence is certainly relevant. Bailey’s presence shows

both an association between Bailey and Williams’ illicit

business and that Williams trusted Bailey enough to bring

him along. Though not conclusive, Bailey’s presence at

these drug deals makes the existence of the conspiracy
Nos. 07-1182, 07-1190 & 07-1191 19

“more probable.” In addition, the evidence was not

unfairly prejudicial. The prejudice that results from

Bailey’s presence at Williams’ drug purchases is pretty

clear. However, the testimony was unlikely to cause

the jury to convict the defendant on an impermissible or

emotional basis. It would not be irrational for a jury to

conclude that Bailey was part of an ongoing conspiracy

to distribute drugs based, in part, on his presence in the

car during Williams’ purchases. We therefore find no

error in the district court’s conclusion and affirm Bailey’s

conviction.

C. Alexander’s Appeal

Alexander only appeals his conviction for being a member of the drug-distribution conspiracy. He has never

denied his involvement in the August 13, 2002 sale of

crack to Bethel. Nor does Alexander deny that Bailey

and Williams were involved in a conspiracy, saying

that “overwhelming evidence” supports their convictions.

But he does deny that sufficient evidence proves that

he intended to join a conspiracy with Williams and Bailey

to distribute drugs. We disagree.

Alexander may not have been the laboring oar in the

conspiracy, but he was certainly rowing. The evidence

established that Alexander would direct willing buyers

to Bailey or Williams. Alexander thus served as an intermediary in the conspiracy, bridging the divide between a

willing buyer and Williams or Bailey. See United States

v. Sachsenmaier, 491 F.3d 680, 684 (7th Cir. 2007); United

States v. Rock, 370 F.3d 712, 715 (7th Cir. 2004) (“Case

law is clear that when defendants are on the same side

of a sale of drugs to a third party, there is sufficient

evidence of a conspiracy.”).

The most obvious instance of Alexander’s role was the

August 13, 2002 sale. Bethel testified that he had called
20 Nos. 07-1182, 07-1190 & 07-1191

Alexander around noon and asked if he could purchase

an ounce of crack. A few hours later, Bethel called Alexander and asked how long it was going to take him to “grab

that zip for me.” Alexander responded that all he had to

do was “make a phone call” and that he would “have

them bring it over here, and I’ll just come to the Taft

with them.” At around 5:00 P.M. that night, Alexander

and Williams stopped by where Bethel was living and

delivered the ounce. Although Bethel had purchased crack

from Alexander three or four times in the past, he had

never bought from Williams before. After the initial

transaction, Alexander gave Williams’ number to Bethel

for him to call directly. Alexander also helped set up the

August 29, 2002 transaction, serving as a bridge between

Bailey and Bethel when the former was slow in making

delivery. Throughout the day, Alexander was in contact

with Bailey and Williams on their cell phones. Although

the jury acquitted Alexander of a distribution charge for

that day, his behavior is still relevant to whether he

conspired to do so. Billops, 43 F.3d at 286.

This evidence clearly establishes Alexander’s involvement as of August 2002, but his involvement stretches

back much further. Alexander had worked with Bailey

to sell drugs for years. Jason Parker testified that Alexander would purchase “ounces, half ounces, . . . two ounces

of crack from” him beginning in 1994. He would deliver

the drugs to Alexander and Bailey together at the Taft

Homes “when their supply didn’t have the drugs they

needed.” John T. Williams testified that Williams had

Alexander and Bailey working for him out of Williams’

house on Madison Street. Until he was sent to prison in

1997, John T. Williams would deliver ounces of crack to

the house where Alexander was working for Williams,

“dealing drugs and stuff like that.” Finally, Mario Thompson testified that he had also sold smaller amounts of

crack to Alexander during the months leading up to his
Nos. 07-1182, 07-1190 & 07-1191 21

arrest in 2002, the same period in which he was supplying Williams. In short, the jury was entitled to believe

that Alexander had formed an agreement with Williams

and Bailey to sell drugs, based on the controlled buys

to Bethel and the testimony establishing Alexander’s

involvement with Williams and Bailey in the Peoria crack

market. The testimony certainly supported this conclusion. We will not disturb it on appeal.

III. Conclusion

For the foregoing reasons, we AFFIRM the jury’s verdicts

for all three defendants and AFFIRM Williams’ sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-18-07