# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 3, 2010

Decided March 10, 2010

Before

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 09

‐ 1303

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

DWAYNE L. TOLIVER,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 07

‐ CR

‐ 29

Lynn Adelman,

Judge

.

O R D E R

Police officers in Nebraska discovered 900 pounds of marijuana in an SUV during a

traffic stop in September 2006. The driver agreed to cooperate with the DEA and delivered

his cargo to Reginald Bickham, a marijuana distributor in Milwaukee, Wisconsin. Bickham

was arrested and fingered people below him in the distribution chain, including the

defendant, Dwayne Toliver, who was arrested in May 2007. The other participants pleaded

guilty, but Toliver insisted that Bickham had falsely accused him to curry favor with

prosecutors. A jury rejected this defense and found Toliver guilty of conspiracy to

distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1). The drug quantity and his criminal history

triggered a 10

‐ year statutory minimum, see id. § 841(b)(1)(B)(viii), which the district court

imposed. Toliver filed a notice of appeal, but his appointed lawyers move to withdraw

because they cannot find a nonfrivolous issue to pursue. See Anders v. California

, 386 U.S. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 1303 Page 2

738 (1967). Toliver opposes counsel’s submission. S ee C IR

. R. 51(b). We confine our review

to the potential issues identified in counsel’s facially adequate brief and Toliver’s response.

See United States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

At trial Bickham testified that he was a small

‐ time distributor until late 2004 when a

willing source started fronting him large amounts of marijuana. Initially he received 20

‐ pound shipments from this supplier, but over time the weight increased until reaching the

900 pounds intercepted by police. Bickham did not sell directly to users but instead fronted

the drug to dealers who employed their own distributors or sold it themselves. He

explained that Toliver, whom he knew only as “Big Baby,” owned the car wash he

patronized and sold small amounts of marijuana for him as early as 21⁄2 to 3 years before the

Nebraska seizure. As his drug business grew, Bickham continued, he needed a safe place to

transfer the marijuana from the supplier’s car to his, and Toliver let him use the car wash.

After that, said Bickham, he began giving Toliver more marijuana to sell, ranging from 5 to

100 pounds. Bickham added that Toliver was always present when marijuana was being

unloaded at the car wash. Another man, Bickham’s longtime friend Rahjee Shabazz, was

also present on occasion. Bickham stopped using the car wash in 2005 but continued

fronting marijuana to Toliver until the next year when he failed to pay for 15 pounds worth

about $10,000. At that point, said Bickham, he ended all contact with Toliver. Bickham’s

cell phone records for 2006 corroborate that he and Toliver conversed more than 170 times

in January and February before the calls ceased.

Before his arrest Bickham had been using notebooks and scraps of paper to track his

drug business. He gave these ledgers to investigators and explained at trial that he started

keeping records when his operation became too big to track mentally. In his ledgers he

recorded the weight of the marijuana and the amount of money paid or owed by his

customers, who were identified only by initials or nicknames. Their real names were often

unknown to him. Bickham testified that Toliver’s transactions were listed under “Big Baby”

or “Wash”—the latter a nickname referring to his car wash but that Bickham never used

when speaking with Toliver.

Shabazz, Bickham’s friend, also pleaded guilty and testified for the government. He

knew Toliver only as “Big Baby” and first met him when Bickham was using the car wash

to unload marijuana. Bickham would call Toliver when a shipment arrived, and Toliver

would let them into the car wash to unload and weigh the drugs. Bickham fronted part of

those shipments to Shabazz and Toliver. Shabazz testified that investigators showed him

Bickham’s ledgers and asked if he was the customer identified as “Rha.” He told the jury he

assumed that “Rha” was short for Rahjee even though Bickham never called him by that

nickname. Shabazz confirmed that the numbers in the ledgers were consistent with

amounts of drugs Bickham had fronted him and the money he owed in return. ShabazzNo. 09

‐ 1303 Page 3

also confirmed that the directory copied from his cell phone by police after an unrelated

arrest in 2005 included Toliver’s number stored under “Big Baby.”

Four other buyers of Bickham’s marijuana likewise pleaded guilty and testified for

the government. One of them knew Toliver socially, but otherwise none was aware that he

was buying from Bickham, and neither did they know any of Bickham’s other customers.

All four, though, recognized in Bickham’s ledgers their own transactions with him.

Toliver took the stand and denied selling drugs. He said he met Bickham in 2005

when Bickham started coming to his car wash 2 or 3 times a week with up to 15 different

vehicles. Toliver insisted that he uses the nickname “Man,” which is what Bickham called

him, not “Big Baby” or “Wash.” Toliver also acknowledged that Bickham telephoned him

frequently, but always concerning his cars. And he in turn called Bickham, he continued,

because Bickham had a habit of being late to retrieve his cars. Toliver testified that Bickham

quit coming to his car wash early in 2006 but did not tell him why.

Other than his own denials, Toliver’s defense relied on cross

‐ examination of the

government’s witnesses and his fiancee’s testimony that she never saw him with large

quantities of drugs. Defense counsel questioned Bickham about his motivation for

testifying and implied that he was lying about Toliver to evade a 10

‐ year statutory

minimum and an even

‐ higher imprisonment range under the guidelines. Counsel

questioned why Bickham had used two different names for Toliver in his ledgers, but the

nicknames of other customers did not vary. Counsel elicited that it took Bickham months to

provide enough information for investigators to begin identifying the customers in his

ledger entries, and Bickham agreed that he was under pressure “to put a name with every

one of those nicknames.” Bickham countered, however, that even at the time of trial there

were still a number of ledger entrants who remained unidentified and at large.

In this court both counsel and Toliver consider whether Toliver could tease a

nonfrivolous issue from the differing dates of the conspiracy alleged in the indictment and

proven at trial. The indictment alleges a conspiracy beginning in January 2006 and

continuing until the date of Bickham’s arrest in September 2006, but the evidence at trial

showed that Toliver and Bickham had engaged in drug transactions beginning in 2005 and

continuing through February 2006. Toliver proposes to argue that the government actually

proved two conspiracies—one in 2005 involving Bickham and Shabazz using the car wash

to unload drugs and the other beginning in January or February 2006—and thus the lack of

a multiple

‐ conspiracy jury instruction sullies his conviction. And counsel also examine

whether Toliver could argue that the differing time frames led to a constructive amendment

of the indictment, a fatal variance, or proof insufficient to convict.No. 09

‐ 1303 Page 4

All of these contentions would be frivolous. First, the very suggestion that the

evidence established two separate marijuana conspiracies would doom the possibility of a

constructive amendment: the indictment charges a drug conspiracy, and a constructive

amendment, by definition, cannot occur unless the evidence and the jury instructions

allowed conviction for an entirely different crime from what the indictment alleges.

See United States v. Ratliff

‐ White

, 493 F.3d 812, 820 (7th Cir. 2007); United States v. Trennell

,

290 F.3d 881, 888 (7th Cir. 2002); United States v. Johnson

, 248 F.3d 655, 665 (7th Cir. 2001).

The beginning and ending dates of a conspiracy are not elements of the offense, so proof of

different dates could never raise the specter of conviction for a different crime. See United

States v. Hatten

‐ Lubick

, 525 F.3d 575, 581 (7th Cir. 2008); United States v. Spaeni

, 60 F.3d 313,

315

‐ 16 (7th Cir. 1995); United States v. Jackson

, 935 F.2d 832, 844 (7th Cir. 1991). Moreover, on

this record we would be compelled to conclude that a rational jury could have found that

Toliver knew about and agreed to participate in Bickham’s marijuana business within the

dates alleged in the indictment, thus also dooming any claim of variance or insufficient

evidence. See United States v. Haynes

, 582 F.3d 686, 698 (7th Cir. 2009) (discussing variance);

United States v. Dean

, 574 F.3d 836, 842 (7th Cir. 2009) (same); United States v. Longstreet

, 567

F.3d 911, 918

‐ 19 (7th Cir.) (discussing sufficiency of the evidence), cert. denied

, 130 S. Ct. 652

(2009); United States v. Harris

, 585 F.3d 394, 402 (7th Cir. 2009) (same). Bickham’s testimony

established that Toliver knowingly helped him receive and sell marijuana, and Shabazz’s

testimony corroborated Toliver’s involvement in unloading the marijuana. Toliver painted

a different, innocent picture, but the jury was entitled to reject his testimony, and we would

not upset the jury’s credibility findings. United States v. Hampton

, 585 F.3d 1033, 1041

‐ 42

(7th Cir. 2009).

Counsel next consider whether Toliver could claim error based on the government’s

use of a prior conviction to impeach him. Counsel examine whether it prejudiced the jury

to hear that Toliver had an 8

‐ year

‐ old conviction for possessing cocaine with intent to

distribute. Because Toliver did not object at trial, we would review for plain error. United

States v. Williams

, 272 F.3d 845, 860 (7th Cir. 2001). Federal Rule of Evidence 609 allows the

government to submit evidence of a defendant’s prior felony conviction if the conviction

occurred within the last 10 years and its probative value outweighs the prejudice to the

accused. See United States v. Smith

, 454 F.3d 707, 716 (7th Cir. 2006). In evaluating whether a

conviction satisfies this requirement, a trial court should consider “(1) the impeachment

value of the prior crime; (2) the point in time of the conviction and the defendant’s

testimony; (3) the similarity between the past crime and the charged crime; (4) the

importance of the defendant’s testimony; and (5) the centrality of the credibility issue.”

United States v. Gant

, 396 F.3d 906, 909 (7th Cir. 2005). Here, Toliver’s testimony and

credibility were central to the case: either he was lying or Bickham was lying. Thus,

although the similarity of the two crimes increased the risk of prejudice, the importance of

Toliver’s credibility weighed in favor of admissibility. And the prejudicial effect wasNo. 09

‐ 1303 Page 5

lessened because the government confined its inquiry to the type and time of conviction and

the court gave the jury a limiting instruction. See United States v. Montgomery

, 390 F.3d 1013,

1015

‐ 16 (7th Cir. 2004). Accordingly, we agree with counsel that an argument premised on

Rule 609 would be frivolous.

Counsel also assess whether Toliver could challenge several remarks the prosecutor

made during closing argument, and Toliver identifies other aspects of the prosecutor’s

conduct he thinks deserve review. We evaluate alleged impropriety during closing

argument in the context of the record as a whole, United States v. DeSilva

, 505 F.3d 711, 719

(7th Cir. 2007), and in this case, because no objections were lodged at trial, Toliver would

face the additional hurdle of plain

‐ error review, see United States v. Anderson

, 450 F.3d 294,

300 (7th Cir. 2006).

According to counsel, Toliver might argue from two isolated statements—which

together comprise 12 lines in 26 pages of transcribed argument—that the prosecutor

misstated the evidence and also injected his personal belief that Bickham and Shabazz were

credible. But we would not read into the prosecutor’s words any improper meaning or

purpose. Regarding the first statement, which counsel characterize as the prosecutor

misrepresenting that Bickham and Shabazz testified directly that Toliver ʹ s involvement

ended in February 2006, we disagree with counsel’s interpretation. The prosecutor did not

attribute the ending date to either Bickham or Shabazz but rather was summarizing the

evidence as a whole: Bickham and Shabazz testified about Toliver’s involvement, which

likely ended in February 2006 when the phone calls to and from Bickham stopped. In the

second statement, which was delivered in rebuttal, the prosecutor reasoned that if Bickham

and Shabazz had lied about Toliver’s involvement, they would have concocted a more

damning story. This statement was not only invited by defense counsel’s implication that

Toliver was falsely accused, see United States v. Myers

, 569 F.3d 794, 799 (7th Cir. 2009), but

was also an appropriate response to that argument, see United States v. Morris

, 498 F.3d 634,

643 (7th Cir. 2007); United States v. Clarke

, 227 F.3d 874, 884

‐ 85 (7th Cir. 2000); see also United

States v. Vasquez

‐ Rivera

, 407 F.3d 476, 483

‐ 84 (1st Cir. 2005); United States v. Perez

‐ Ruiz

, 353

F.3d 1, 9

‐ 10 (1st Cir. 2003). We agree with counsel, then, that an appellate claim premised

on these two statements would be frivolous.

In his Rule 51(b) response, Toliver points to a third passage, which he interprets as

implying to jurors that they could safely credit the government’s witnesses because the trial

judge ensures that they tell the truth. In fact what the prosecutor conveyed is that the judge

has final say in whether to lower a witness’s sentence when the government moves for a

reduction in exchange for testimony. A prosecutor may discuss a witness’s plea agreement

and highlight the negative consequences for being untruthful, United States v. Alviar

, 573

F.3d 526, 542 (7th Cir. 2009), cert. denied

, 78 U.S.L.W. 3438 (U.S. Jan. 25, 2010) (No. 09

‐ 8215),No. 09

‐ 1303 Page 6

and may also clarify the process by which a criminally involved witness may receive a

lower sentence, United States v. Johnson

, 437 F.3d 665, 672

‐ 74 (7th Cir. 2006); United States v.

Anderson

, 303 F.3d 847, 855

‐ 56 (7th Cir. 2002). Toliver’s proposed argument would be

frivolous because, on this record, we would conclude that the prosecutor’s remarks fairly

answered Toliver’s theme that his accusers were lying to get a lower sentence.

Finally, Toliver argues that the prosecutor violated the “advocate

‐ witness rule,”

which bars an attorney from acting as both witness and advocate in the same proceeding.

Toliver singles out two parts of trial. First, it was evident from the prosecutor’s questioning

of Bickham that the two men had met when Bickham first started cooperating. Second,

during closing argument the prosecutor repeatedly used the word “we” in acknowledging

that the evidence against Toliver was largely testimonial, e.g., the prosecutor explained that

“we” did not have recordings of telephone calls and had not caught anyone “in the act”

except Bickham. Toliver proposes to argue that these remarks were tantamount to

testifying as a witness, but that contention would be frivolous. The questioning of Bickham

was entirely proper, see United States v. Watson

, 87 F.3d 927, 931

‐ 32 (7th Cir. 1996); United

States v. Marshall

, 75 F.3d 1097, 1106 (7th Cir. 1996), and although such references to “we”

might run the danger of being misinterpreted as vouching for the integrity and good faith of

the investigators’ efforts, see United States v. Hermanek

, 289 F.3d 1076, 1097

‐ 99 (9th Cir. 2002),

it would be a stretch to draw that inference here, especially given the limitations of review

for plain error.

The last two points counsel identify require little discussion. After reviewing the

evidentiary objections Toliver made at trial (three for speculation, one hearsay, and one for

foundation), we are convinced that it would be frivolous to challenge the rulings. Even if

the district court did err in overruling the objections, the testimony and exhibit were so

tangential to Toliver’s guilt or innocence that we would find the error harmless. Finally, as

counsel notes, Toliver was sentenced to the statutory minimum, so an appeal of his prison

sentence would be frivolous.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.