*

 We granted the parties’ joint motion to waive oral argument. Thus, the

appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(f).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 17, 2007*

Decided April 18, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

 Hon. WILLIAM J. BAUER, Circuit Judge 

 Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 06-2077

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEMUEL T. CARROL,

Defendant-Appellant.

Appeal from the United States District

Court for the Central District of

Illinois

No. 05-40002-001

Joe Billy McDade, 

Judge.

O R D E R

Lemuel Carrol was found guilty by a jury of conspiracy to distribute cocaine

base, 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to 264 months’ imprisonment. 

On appeal he argues that his constitutional and statutory rights to a speedy trial

were violated and that the admission of certain testimony by government witnesses

unfairly prejudiced the jury against him. We affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-2077 Page 2

Carrol was arrested on January 4, 2005, and indicted on January 20, 2005,

but his trial did not begin until December 5, 2005. Various factors contributed to

the delay. The trial date originally was set for March 25, but both sides requested a

continuance to prepare for trial. The court reset the trial date to April 25. In midApril defense counsel withdrew due to a conflict of interest. The court vacated the

trial date and appointed a new attorney who, in May, also withdrew due to a

conflict of interest. The court appointed a third lawyer and granted his request for

three weeks to review the case before a status conference. At that conference in

June, the parties informed the court that they were looking for a trial date in

September because defense counsel needed time to prepare and the court’s calendar

was full until September. Accordingly, the court set a trial date of September 12. 

Then in August the prosecutor requested a continuance because she could not try a

case during September due to her pregnancy. Carrol objected, but the court granted

the continuance, reasoning that the prosecutor had been with the case since the

beginning and that the root cause of the delay was the substitution of defense

counsel. The court set a new trial date for November 7. Later the judge, over

Carrol’s objection, rescheduled the trial for a later date in November because he

was having surgery. And then again the court postponed the trial to December 5,

with no objection from the government or defense counsel.

At trial the government set out to prove that, from 1997 to 2004, Carrol

purchased drugs from various sources and resold them both to other dealers and to

users in the Quad Cities, where he lived. The government’s fourteen witnesses

included a former drug user turned informant, a former dealer turned informant,

and seven incarcerated drug dealers who either had bought drugs from Carrol or

sold drugs to him for resale. The government sought to show that a conspiracy to

distribute crack existed between Carrol, the seven drug dealers called as witnesses,

and other dealers. The government also presented evidence of drug sales involving

Carrol and an undercover police officer. The defense called five witnesses, including

three police officers, Carrol’s ex-girlfriend, and his ex-wife. Carrol did not testify. 

The defense attempted to discredit the government witnesses by pointing out

inconsistencies or gaps in their testimony, but did not offer any evidence refuting

Carrol’s participation in drug sales. On December 7 the jury returned a verdict of

guilty.

On appeal Carrol argues that the delayed commencement of his trial violated

his rights under the Speedy Trial Act, 18 U.S.C. §§ 3161-67, and the Sixth

Amendment. Carrol, though, never moved to dismiss the indictment on the ground

that his statutory right to a speedy trial was violated, so that contention is waived. 

See 18 U.S.C. § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to

trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the

right to dismissal under this section.”); United States v. Morgan, 384 F.3d 439, 443

(7th Cir. 2004). Only the Sixth Amendment claim is before us. In considering a
No. 06-2077 Page 3

constitutional challenge, courts apply a four-part test: (1) whether the delay in

proceeding to trial was inordinate; (2) whether the government or the defendant is

more to blame for that delay; (3) whether the defendant asserted his right to a

speedy trial; (4) and whether the defendant suffered prejudice as a result of the

delay. Doggett v. United States, 505 U.S. 647, 651 (1992); United States v. White,

443 F.3d 582, 589 (7th Cir. 2006).

Here there was no constitutional violation. The eleven-month delay between

arrest and trial is long enough to be “presumptively prejudicial” and warrant review

of the other factors, see, e.g., White, 443 F.3d at 590 (finding that a delay of nine

months between arrest and trial warrants a more searching analysis); United States

v. Ward, 211 F.3d 356, 361 (7th Cir. 2000) (“Courts have generally found delays

approaching one year to be presumptively prejudicial.”), but since the further delay

after the point of presumptive prejudice was not excessive, this factor does not

count heavily in Carrol’s favor, see White, 443 F.3d at 590. Neither does the reason

for the delay favor Carrol. The parties and the court all shared some responsibility

for the overall delay, but the bulk of it resulted from the withdrawal of Carrol’s first

two lawyers and the request of his third lawyer for adequate time to prepare. See

Barker v. Wingo, 407 U.S. 514, 531 (1972) (“A valid reason, such as a missing

witness, should serve to justify appropriate delay.”); White, 443 F.3d at 590

(concluding that second factor was neutral where delay was caused by novel legal

issue for which neither party deserved blame); United States v. Taylor, 196 F.3d

854, 861-862 (7th Cir. 1999) (concluding that second factor weighed against

defendant where delays were attributable to defense and not government). The

government sought only one continuance on its own, and that was due to the

prosecutor’s pregnancy. This delay does not suggest a deliberate prosecutorial

effort to postpone the trial. See Barker, 407 U.S. at 531; United States v. Koller, 956

F.2d 1408, 1415 (7th Cir. 1992) (explaining that illness of government witness was

valid reason for five-month delay). And, finally, Carrol suffered no demonstrable

prejudice. He does not allege that the delay impaired his ability to defend against

the charge, and instead he asserts that his pretrial detention between January 4

and December 5 was oppressive and caused him great anxiety and concern. While

this is a proper factor to consider under the prejudice prong, it is insufficient to tip

the scales in Carrol’s favor. See White, 443 F.3d at 591; Ward, 211 F.3d at 361. 

Carrol next presents several challenges to the admission of evidence at his

trial. Defense counsel did not object during the trial to any of the testimony now

challenged on appeal; therefore, our review is for plain error, United States v. Pree,

408 F.3d 855, 868 (7th Cir. 2005). To prevail Carrol must show that (1) an error

occurred, (2) it was “plain,” (3) it affected a substantial right, and (4) it seriously

affected the fairness, integrity, or public reputation of the judicial proceedings. See

United States v. Nitch, 477 F.3d 933 (7th Cir. 2007); see generally United States v.

Olano, 507 U.S. 725, 732-37 (1993) (discussing plain error review in detail).
No. 06-2077 Page 4

Carrol contends that he was unduly prejudiced by evidence of his prior drug

conviction and incarceration. The challenged testimony was elicited through David

Harris and Jermaine Torrey, two of the seven imprisoned dealers who testified. 

Both said that they sold crack to Carrol for him to resell to other dealers and to

users. Harris explained that he remembered when he first met Carrol because

Carrol “had just gotten out of prison and I knew him through mutual friends.” 

Torrey stated that Carrol had a history of “cooking up dope” and had “caught a state

charge cooking up, manufacturing.” 

Carrol has failed to show how this isolated testimony prejudiced the outcome

of his case. Carrol’s defense was not premised on denying that he was involved in

dealing crack; instead, the theory of defense was that Carrol was a small-time drug

dealer, not a member of a distribution conspiracy. The evidence of Carrol’s earlier

conviction and incarceration did not impact that defense. See United States v.

Kibler, 279 F.3d 511, 514-15 (7th Cir. 2002) (holding that witnesses’ allusions to

defendant’s prior incarceration did not rise to the level of plain error where the

defense’s case was not premised on denying his involvement with drug sales).

Carrol also challenges the admission of testimony by informant Kelly Hinson

and police officer Jeff Ven Huisen, who stated that they jointly made three

“controlled purchases” of user amounts of crack cocaine from Carrol. Hinson had

become an informant in February 2004 after police stopped Carrol’s car while she

was with him trying to purchase crack. Van Huisen testified that he was with

Hinson three times in April 2004 when they bought crack from Carrol. Carrol

argues that these sales were simply evidence of buyer-seller transactions, and so

testimony about them should have been excluded under Federal Rule of Evidence

404(b) because the transactions were not probative of his participation in a

conspiracy. See United States v. Luster, No. 05-4312, 2007 U.S. App. LEXIS 5937,

at *7-8 (7th Cir. Mar. 15, 2007); United States v. Townsend, 924 F.2d 1385, 1394

(7th Cir. 1991).

The admission of this routine evidence was not error. To prove a conspiracy

the government must show more than a buyer-seller agreement. See United States

v. Rivera, 273 F.3d 751, 755 (7th Cir. 2001). The government must show “an

agreement to commit a further crime, usually involving the subsequent distribution

of drugs by the buyer.” Id. We have employed four factors to determine the

existence of a conspiracy: “1) length of relationship; 2) established method of

payment (for example, fronting); 3) the extent to which the transactions were

standardized; and 4) the level of mutual trust between buyer and seller.” Id. In the

end, what we are looking for is “evidence of a prolonged and actively pursued course

of sales coupled with the seller’s knowledge of and a shared stake in the buyer’s

illegal venture.” United States v. Thomas, 284 F.3d 746, 752 (7th Cir. 2002)

(internal quotation marks and citations omitted). Although a drug distribution
No. 06-2077 Page 5

might not itself establish a conspiracy, a history of transactions may be evidence of

conspiracy. Thomas, 284 F.3d at 750. Conspiracies, like other crimes, can be

proved entirely by circumstantial evidence. United States v. Williams, 61 F.3d 534,

536 (7th Cir. 1995). The evidence provided by Hinson and Ven Huisen followed

testimony by seven former drug dealers alleged to be part of the conspiracy. The

evidence of these controlled purchases, therefore, tends to show a history of

transactions making up the conspiracy.

Finally, Carrol asserts that he was unfairly prejudiced by the testimony of

Alycia White, the former drug dealer who became an informant. White was told

that no charges would be brought against her as long as she cooperated with the

government, and Carrol apparently believes the arrangement should have

disqualified her as a witness. But Carrol presents no legal argument against the

admission of her testimony, and indeed none could be maintained. See United

States v. Dawson, 425 F.3d 389 (7th Cir. 2005) (rejecting exclusionary rule for

immunized testimony and noting that “a jury should be competent to discount

appropriately testimony given under a powerful inducement to lie”).

AFFIRMED.