In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2406

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FEMI JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 103—Matthew F. Kennelly, Judge.

____________

ARGUED DECEMBER 2, 2005—DECIDED FEBRUARY 10, 2006

____________

Before BAUER, POSNER, and MANION, Circuit Judges.

BAUER, Circuit Judge. A jury convicted Femi Johnson of

one count of conspiring to possess with intent to distribute,

and to distribute, heroin in violation of 21 U.S.C. § 846, and

two counts of possession of heroin with intent to distribute

in violation of 21 U.S.C. § 841(a)(1). Johnson challenges his

conviction claiming prosecutorial misconduct, insufficient

evidence to support the jury verdict, failure of the district

court to instruct the jury properly, and denial of his right to

present witnesses in his defense. He also challenges his

sentence. We affirm Johnson’s conviction but order a

limited remand to the district court in accordance with our
2 No. 04-2406

decision in United States v. Paladino, 401 F.3d 471 (7th Cir.

2005).

I. Background

In November 1999, a government informant named Henry

Adebayo engaged Kenny Mohammed, whom he knew to be

a drug dealer, in a series of recorded conversations to

arrange heroin purchases. Mohammed told Adebayo that he

had to call a friend, Johnson, to obtain heroin. Mohammed

and Johnson agreed that a sale would take place when

Mohammed informed Johnson that the buyer was ready.

On January 28, 2000, agents fitted Adebayo with a

recording device and supplied him with buy money. While

waiting with Adebayo at Leona’s restaurant in Hyde Park,

Mohammed received a phone call and told the caller that he

would meet him shortly. When they left Leona’s, Adebayo

returned to his car; Mohammed entered a wine-colored

Toyota Corolla, driven by a black male, with tinted windows

and Texas license plates. Agents then observed Mohammed

walk to Adebayo’s car, take the buy money, return to and

enter the Corolla, exit and walk back to Adebayo’s car, and

hand Adebayo an object resembling a newspaper. This

comports with Adebayo’s later testimony that he and

Mohammed exchanged the buy money for heroin while the

two men were in Adebayo’s car in front of the nearby

McDonald’s. Mohammed, on the other hand, later testified

that Adebayo gave him the money while they were still at

Leona’s, and that he gave Adebayo the heroin while they

stood in front of the McDonald’s. After Mohammed left the

car, agents saw Adebayo drive off, followed him, and

recovered fifty grams of heroin from inside the newspaper.

Another agent followed the Corolla to the north side of the

city, where it turned around and headed south.

After several more conversations with Mohammed,

Adebayo succeeded in scheduling another transaction for

February 16, 2000. Mohammed testified that he contacted
No. 04-2406 3

Johnson to tell him that his “guy” was ready and to order

seventy grams of heroin. When Johnson agreed and asked

where to meet, Mohammed instructed him to go to the

apartment building at 7337 S. South Shore Drive. Mohammed testified that they agreed to the same unit price as was

paid for the January 28 transaction: “Since the other one

was $5,000, this one was $7,000, I told him already.” Later,

Mohammed received a phone call and traveled

with Adebayo to the apartment building, where they waited

for Johnson to arrive with the heroin.

Agents monitored the apartment building in anticipation

of the second controlled purchase. Earlier, they had given

Adebayo $7,000 in buy money and recorded the serial

numbers on the bills. The same wine-colored Corolla arrived

at the apartment building. An agent observed Mohammed

make an exchange with the driver. Mohammed testified

that he took the heroin from Johnson in the Corolla,

brought it to Adebayo, exchanged it for the money, and then

went upstairs with Johnson to Mohammed’s apartment.

According to the agents, the fire lane in which the Corolla

was parked presented surveillance problems. As a result,

the agents did not observe Mohammed or Johnson enter the

building. Only by moving to an area just north of the fire

lane could DEA Agent William Wilson observe the Corolla

leave the apartment building.

After the Corolla left, agents recovered the approximately

seventy grams of heroin from Adebayo, while Customs

Agent John Coleman followed the Corolla to the 8600 block

of South Saginaw Street. There, Coleman saw the driver

leave the car and enter a house, before returning to the car.

Agent Coleman again followed the Corolla, which proceeded

to turn right while signaling left, make a sharp right turn,

accelerate sharply, run two red lights, weave through

traffic, and run yield signs at cross streets. When Coleman

could no longer keep pace with the car, he radioed for

assistance. Officer Robert Sapp, who was part of the
4 No. 04-2406

surveillance team, pulled the Corolla over after it ran a

third red light. Johnson was the driver. 

Officer Sapp discovered $5,950 in U.S. currency wrapped

in newspaper in the glove compartment. Agents photocopied

the bills, whose serial numbers matched the ones agents

had recorded for $5,950 of the $7,000 given to Adebayo.

Agents gave Johnson a receipt for the money. On February

24, 2000, in order to maintain the covert nature of the

investigation, agents gave the money to Witness A, who

claimed that she had given it to Johnson to purchase a car

on her behalf. In early February 2001, Witness A was

indicted and arrested for making false statements to federal

agents in violation of 18 U.S.C. § 1001. While in custody,

she said that Johnson had paid her $200 to tell the agents

that the money belonged to her. Based on this statement,

the complaint was dismissed without prejudice, as the

government “expected her to be a cooperating witness.” 

On June 2, 2001, authorities arrested Johnson on conspiracy and possession charges. Shortly before trial, Witness A’s

attorney informed the government that she had reversed

herself again and was prepared to testify consistent with

her original statement. As a result, the government complied with a court order requiring disclosure of impeachment evidence by sending a letter to defense counsel

indicating that Witness A was again a possible subject of

investigation. In response to the defendant’s subpoena,

Witness A invoked her Fifth Amendment privilege against

self-incrimination.

Johnson’s trial began on November 19, 2003. In both voir

dire questioning and opening statement, defense counsel

indicated that Johnson’s defense would be to attack Mohammed’s credibility. During trial, the government called a

number of witnesses, including Agent Coleman, who gave

expert testimony that the supplier in a brokered drug deal

will often be present in the area to ensure that he receives
No. 04-2406 5

1 The safety valve provision of 18 U.S.C. § 3553(f) allows the

district court to depart below the statutory mandatory minimum

sentence for certain drug offenses if the defendant satisfies each

of the five criteria set forth in the statute. See also U.S.S.G.

§ 5C1.2. The provision generally applies “where the defendant is

a first time offender who was not the organizer or leader of

criminal activity and has made a good faith effort to cooperate

with the government.” United States v. Harrison, 431 F.3d 1007,

1013 (7th Cir. 2005).

payment from the sale proceeds, just as Johnson did on

these two occasions. Mohammed also testified for the

government, relating the circumstances of the two transactions. The court allowed the government to introduce the

court’s order granting Mohammed immunity and compelling his testimony. Accordingly, the prosecutor questioned

him on direct examination about his understanding of the

immunity agreement. On cross-examination, defense

counsel questioned Mohammed about the dependence of his

“safety valve ” reduction1

 on pleasing the government with

his testimony against Johnson. On redirect, then, the

government questioned Mohammed about the facts omitted

by defense counsel, such as all five of the factors considered

by the court in determining safety valve eligibility. 

At trial, Johnson never set forth a buyer-seller defense;

rather, he argued that he was “not a drug dealer.” During

closing arguments, the prosecutor portrayed Mohammed as

a credible witness based on the evidence corroborating his

testimony. He stated that Mohammed “is here under an

order” and “understands he needs to tell the truth.” Defense

counsel, in closing argument, argued that “Kenny Mohammed wasn’t telling the truth. He had every incentive to lie.”

Responding in rebuttal, the prosecutor again raised Mohammed’s immunity agreement to demonstrate his incentive to

testify truthfully. No buyer-seller jury instruction was

requested by either party and none was given. On Novem-
6 No. 04-2406

ber 25, 2003, the jury found Johnson guilty of the conspiracy and possession counts. On May 14, 2004, Judge

Kennelly imposed an enhancement for obstruction of justice

under the Sentencing Guidelines and sentenced Johnson to

seventy months in prison. Johnson now challenges his

conviction and sentence.

II. Discussion

Johnson advances the following five arguments on appeal:

(1) that prosecutors denied him a fair trial by improperly

vouching for the truthfulness of government witness

Mohammed during their case-in-chief and closing argument; (2) that the evidence presented by the government

was not sufficient to prove Johnson guilty of conspiracy and

possession beyond a reasonable doubt; (3) that the district

court erred when it failed to instruct the jury on a buyerseller defense; (4) that the government denied him the right

to present witnesses in his defense by threatening Witness

A with investigation and indictment; and (5) that the

district court violated Johnson’s Sixth Amendment rights by

enhancing his sentence for obstruction of justice. We

consider each claim in turn.

A. Fair Trial

Johnson first contends that the government made improper remarks during examination and closing argument,

thereby denying him a fair trial. Because Johnson did not

object at trial to the remarks he now challenges, we review

only for plain error. United States v. Renteria, 106 F.3d 765,

766 (7th Cir. 1997). Under the plain error standard, the

defendant must establish not only that the prosecutor’s

remarks were improper and denied him a fair trial, but also

that they prejudiced him by altering the outcome of the
No. 04-2406 7

proceedings. United States v. Sandoval-Gomez, 295 F.3d

757, 762 (7th Cir. 2002). 

1. Testimony Concerning Mohammed’s Immunity

Agreement

During direct examination of Mohammed, the district

court allowed the government to introduce the court’s order

granting Mohammed immunity and compelling his testimony. The court specifically stated that introduction of the

order was warranted to show that Mohammed’s testimony

“can be used against him in a prosecution for perjury or

false statement.” Johnson now claims that the government

exceeded the bounds of the order and “told the jury” that

Johnson would be sent to jail if he testified falsely. The

prosecutor told the jury no such thing; instead, he merely

questioned Mohammed about his understanding of the

agreement:

Q. So what could happen if you were to not tell the

truth today?

A. I will be sent to jail.

This question was not improper—it was within the

bounds of the court’s order. Moreover, the government

immediately sought to clarify Mohammed’s comment about

being “sent to jail”:

Q. Could you at least be prosecuted is what your understanding is?

A. Right.

Q. Based on what you say here today?

A. What did you say?

Q. You could be prosecuted based on what you say here

today if you were to not tell the truth; is that your

understanding?
8 No. 04-2406

A. Right, right, right.

This exchange does not, as Johnson claims, constitute

improper bolstering of a government witness. On direct

examination, the government may elicit testimony regarding the witness’s guilty plea or immunity deal because

doing so allows the jury to hear “all relevant aspects of a

witness’s testimony at one time.” United States v. Montani,

204 F.3d 761, 766 (7th Cir. 2000). The government may

generally introduce this evidence regardless of whether the

witness’s credibility has already been attacked. Id. Here,

however, the government introduced this evidence on direct

examination because defense counsel had already signaled,

in voir dire questioning and in opening statement, that

Johnson’s defense would be to attack Mohammed’s credibility.

The prosecutor in this case did not, as Johnson claims,

suggest that the government’s or the court’s authority

rested behind the witness’s testimony. Johnson cites to

several cases where other Courts of Appeals have found

that the government improperly vouched for the witness,

but each is readily distinguishable from the present case.

This is not a case where the prosecutor stated outright in

closing argument that the witness could not say “whatever

he wanted to say” because he would be prosecuted for

perjury, and that “the court wouldn’t allow” the government

to do anything wrong in the trial. See United States v.

Smith, 962 F.2d 923, 934 (9th Cir. 1992). Nor is it the case

where a prosecutor, again in closing argument, stated that

the witnesses would be in jeopardy if the government or the

court did not believe that they were telling the truth. See

United States v. Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994).

Instead, here the government properly questioned Mohammed about his understanding of the agreement he signed

with the government. As this Court has stated, “it is not

improper for the prosecutor to remind the jury of the

deterrent effect the threat of a perjury conviction has upon
No. 04-2406 9

the conduct of government witnesses who to obtain a grant

of immunity might otherwise be inclined to lie.” United

States v. Kramer, 711 F.2d 789, 795 (7th Cir. 1983). Because

this line of inquiry was proper, there was no plain error. See

United States v. Mealy, 851 F.2d 890, 900 (7th Cir. 1988). 

2. Testimony Concerning Mohammed’s Safety

Valve Reduction

Johnson also claims that the government improperly

suggested that the court had already found Mohammed’s

testimony truthful as a matter of law based on proceedings

outside the jury’s presence. In introducing evidence of an

agreement, prosecutors may not imply that they possess

information not heard by the jury on the issue of the

immunized witness’s testimony. Mealy, 851 F.2d at 900. As

stated above, defense counsel alluded to Mohammed’s lack

of credibility during both voir dire questioning and opening

statement. In his opening, defense counsel stated that

Mohammed received a “benefit that was indirect . . . as a

result of his plea.” In cross-examining Mohammed, defense

counsel further intimated that the safety valve reduction

Mohammed received at sentencing depended on his pleasing the government. On redirect, then, the government

sought to elicit those facts that defense counsel failed to

mention on cross-examination, including the four other

safety valve criteria and the court’s role in ultimately

determining Mohammed’s safety valve eligibility under

federal law. See U.S.S.G. § 5C1.2. The government at no

time argued that the jury should believe the witness

because the court found him truthful. Government questioning regarding the witness’s understanding of his

agreement with the government is proper. See Mealy, 851

F.2d at 900. Where defense counsel raises the issue of

sentencing and makes statements regarding the witness’s

agreement, the government may provide appropriate
10 No. 04-2406

clarification of any mischaracterization. United States v.

Sanchez, 251 F.3d 598, 603 (7th Cir. 2001). Here, because

the prosecutor merely placed the circumstances of Mohammed’s safety valve sentencing into proper context, the

government’s conduct was proper. 

3. Closing Remarks Regarding Mohammed’s

Truthfulness

Johnson additionally argues that the prosecutor, in

closing argument, improperly suggested that the government’s and the court’s actions ensured Mohammed’s

truthfulness. He first objects to the prosecutor’s recital in

closing of the circumstances of Mohammed’s appearing to

testify. The prosecutor described Mohammed’s initial

reluctance to testify and Judge Kennelly’s ensuing order of

immunity, which he said “takes away Kenny Mohammed’s

ability to assert the Fifth and forces him to come here and

tell you the truth. And that is exactly what he did.” The

prosecutor immediately thereafter detailed the substance of

Mohammed’s testimony and compared it to other evidence

that “corroborates what Kenny Mohammed told you from

the stand.” Also, when relating Mohammed’s testimony, the

prosecutor repeatedly intoned, “he told you the truth.” 

These remarks about the witness’s truthfulness, however,

are acceptable when placed in context with corroborating

evidence. For instance, in United States v. Morgan, this

Court found that the prosecutor did not inject his personal

opinion into the trial by characterizing the witness as “an

honest person.” 113 F.3d 85, 89 (7th Cir. 1997). Because the

comment was immediately preceded by the prosecutor’s

argument that corroborating evidence showed the witness

to be truthful, the prosecutor’s comment was “a permissible

inference from the evidence, not improper vouching.” Id. at

90. The same is true here. Where the government charac-
No. 04-2406 11

terizes a witness’s credibility “based on the evidence,” the

argument is proper because it is based on the record instead

of “the prosecutor’s own personal belief.” United States v.

Clarke, 227 F.3d 874, 884 (7th Cir. 2000). Because the

prosecutor premised Mohammed’s truthfulness on “all of

the evidence in this case” and stated that the jury must

“consider all of it together,” his remarks constituted a

permissible credibility argument based on the evidence, not

improper vouching based on his personal belief. 

Second, Johnson challenges the government’s later

remarks in closing to the effect that Mohammed “is here

under an order” and “understands he needs to tell the

truth” if he wanted to avoid a possible return to jail. Again,

though, where a prosecutor comments during closing

argument on a witness’s veracity but then follows with a

comparison to other evidence presented at trial, the comment reflects “evidence presented at trial and not the

prosecutor’s personal opinion.” United States v. Goodapple,

958 F.2d 1402, 1410 (7th Cir. 1992). As described above, the

prosecutor in this case acted properly—he surveyed the

evidence corroborating Mohammed’s testimony and from

that evidence assessed his credibility. As in the following

example, the prosecutor’s closing argument portrayed

Mohammed as credible based on the evidence taken as a

whole:

He told you the truth, and he told you that he got

heroin from the defendant. He told you the truth, that

he sold that heroin to Henry Adebayo, and he told you

the truth, that he took the money from that sale and

gave it to the defendant, the supplier of that heroin.

That was the brokered transaction. You know that

Kenny Mohammed told you the truth from all of the

evidence in this case. The evidence in this case corroborates what Kenny Mohammed told you from that stand.
12 No. 04-2406

The prosecutor then proceeded to summarize that corroborating evidence, discussing the recordings of Mohammed

receiving and making calls before the transactions, the

testimony of agents who witnessed the wine-colored Corolla

and Mohammed’s movements at both transactions, the

expert testimony of Agent Coleman regarding the typical

structure of these drug transactions, and the evasive moves

made by Johnson in the wine-colored Corolla. Thus, the

prosecutor properly argued that the evidence compelled the

conclusion that Mohammed complied with his immunity

agreement by testifying truthfully. See Clarke, 227 F.3d at

885 (holding that the prosecutor’s statement about a

witness’s truthfulness was proper “because the evidence

showed that [the witness] complied with the plea agreement, not that [he] told the truth simply because he entered

into the plea agreement.”).

Finally, Johnson challenges the prosecutor’s rebuttal

remarks again referencing the immunity order. One of

defense counsel’s arguments in closing was that “Kenny

Mohammed wasn’t telling the truth. He had every incentive

to lie.” In rebuttal, the prosecutor responded by arguing

that Mohammed understood “that he could be prosecuted

for perjury based on what he told you in Court today if it

turned out that what he said was not true,” and further

that “Kenny Mohammed has no incentive in this case to not

tell you the truth.” Yet again, however, the prosecutor

placed these remarks in context by telling the jury that it

“will be able to judge him . . . not only by what he said, but

also by the corroborating evidence,” which the prosecutor

then reviewed. Moreover, he specifically anticipated the

court’s instruction to the jury to consider the evidence “with

caution and care,” stating that “[t]he government asks that

you do that.” The government’s reference in closing argument to a witness’s truthfulness is proper so long as the

remarks are “tied to the evidence presented at trial or

reasonable inferences from that evidence,” rather than
No. 04-2406 13

personal opinion. United States v. Robbins, 197 F.3d 829,

843 (7th Cir. 1999). Our review of the record reveals that

the theory of the defense was to attack Mohammed’s

credibility. The defense argued in closing that Mohammed

“wasn’t telling the truth” and “had every incentive to lie,”

thus inviting a response from the prosecutor. See id. As a

result, the prosecutor’s comments in rebuttal were meant to

“right the scale” and were not improper. See id.

B. Sufficiency of the Evidence

Johnson next asserts that the evidence presented at trial

was insufficient to establish beyond a reasonable doubt that

he was guilty of the conspiracy and possession counts. We

review a jury’s sufficiency of the evidence determination “in

the light most favorable to the government and uphold . . .

a jury’s decision if ‘any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Burke, 425 F.3d 400, 415 (7th

Cir. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). We will indulge all reasonable inferences that

benefit the government. United States v. Sanchez, 251 F.3d

598, 601 (7th Cir. 2001). Because great deference is given to

the jury, a verdict will be overturned only if we find that

“the record contains no evidence, no matter how the

evidence is weighed, from which the jury could have found

guilt beyond a reasonable doubt.” Burke, 425 F.3d at 415.

1. Conspiracy

Under 21 U.S.C. § 846, a conspiracy exists where: “(1) two

or more people agreed to commit an unlawful act[;] and (2)

the defendant knowingly and intentionally joined in the

agreement.” United States v. Gardner, 238 F.3d 878, 879

(7th Cir. 2001). In order to support a conspiracy conviction,

the government must establish beyond a reasonable doubt

that there was a “combination or confederation between two
14 No. 04-2406

or more persons formed for the purpose of committing, by

their joint efforts, a criminal act.” United States v. Sullivan,

903 F.2d 1093, 1098 (7th Cir. 1990). The government must

establish that the defendant’s relationship with the other

conspirators was “more than a mere association.” Id. at

1098-99. An explicit agreement, however, is not required; a

jury can infer an agreement from the parties’ course of

dealing. Sanchez, 251 F.3d at 602.

Johnson argues that the evidence of conspiracy was

insufficient because it proved only an ordinary buyer-seller

relationship between him and Mohammed, not a joint

conspiracy to sell heroin to Adebayo. Evidence that the

defendant was in a mere buyer-seller relationship with the

alleged coconspirator is insufficient to establish a conspiracy. See United States v. Rock, 370 F.3d 712, 714 (7th Cir.

2004). That remains true “even when the buyer intends to

resell the purchased narcotics.” United States v. Mims, 92

F.3d 461, 465 (7th Cir. 1996). There is sufficient evidence to

establish a conspiracy, however, where the jury finds

credible a government witness who shows that the alleged

coconspirators were “on the same side of the transaction.”

United States v. Smith, 393 F.3d 717, 720 (7th Cir. 2004).

We will not upset the jury’s credibility determination

unless “exceptional circumstances” exist; that is, it was

“physically impossible for the witness to observe that which

he claims occurred, or impossible under the laws of nature

for the occurrence to have taken place at all.” Id. at 719.

Here, the events described by Mohammed were neither

physically impossible nor contrary to the laws of nature.

His testimony contained inconsistencies, to be sure—

Mohammed recalled the January 28 exchange occurring at

a different spot than the one remembered by the agents,

and the agents did not observe Mohammed enter the 7337

apartment building on February 16, as he remembered

doing. After defense counsel emphasized these contradictions in closing argument and the court instructed the jury
No. 04-2406 15

to consider them in assessing Mohammed’s testimony,

though, the jury still found Mohammed credible. As we

have said before, “it is not for us to second guess” the jury’s

credibility determination in a sufficiency challenge. United

States v. Smith, 34 F.3d 514, 521 (7th Cir. 1994). 

The evidence presented by the government was sufficient

to establish that the parties acted in concert, with the object

of distributing heroin to the third-party buyer in two

separate transactions. If Mohammed’s testimony is to be

believed, Mohammed contacted Johnson before the first

transaction to obtain the heroin for resale to the customer,

Adebayo. Johnson did not make Mohammed pay up front

but rather waited for Mohammed “to procure the money”

from the customer. See United States v. Smith, 393 F.3d

717, 720 (7th Cir. 2004). After the transaction, Mohammed

paid Johnson for the heroin, along with $250 as a brokering

commission, from the money he received from Adebayo. 

Before the February transaction, Mohammed again told

Johnson that his “guy,” the buyer, was ready. Afterwards,

he again paid Johnson from the sale proceeds, both for the

heroin and for the commission. The price, $100 per gram of

heroin, was the same for both transactions. Furthermore,

Agent Coleman’s expert testimony about the incentive

suppliers have to position themselves near brokered drug

deals corresponds with Johnson’s behavior in these two

instances. Taken together, this evidence of repeat sales, a

standardized course of dealing, and trust between the

parties was sufficient to establish that Mohammed and

Johnson “formed a continuing and mutually profitable

relationship to distribute drugs.” Sanchez, 251 F.3d at 602.

Because a reasonable jury could conclude that the two were

on the same side of the transaction, the evidence was

sufficient to establish a conspiracy. See United States v.

Smith, 393 F.3d 717, 720 (7th Cir. 2004). 
16 No. 04-2406

2. Possession

Johnson similarly argues that the evidence presented by

the government was insufficient to establish that Johnson

possessed heroin. The government’s case against Johnson

depended heavily, though not exclusively, on Mohammed’s

testimony, described above. The principles described above

in reference to Mohammed’s credibility apply equally to

Johnson’s conviction on the possession counts. See United

States v. Smith, 34 F.3d 514, 521 (7th Cir. 1994). A reasonable jury, crediting this testimony, could infer that Johnson

possessed and transferred heroin to Mohammed in exchange for money. Additionally, the government presented

substantial evidence corroborating Johnson’s possession.

Agents observed a wine-colored Toyota Corolla with tinted

windows and Texas license plates at both the January 28

transaction and the February 16 transaction. Immediately

after the first transaction, agents observed the car engage in an evasive counter-surveillance excursion from the

south side to the north side of Chicago. In the same automobile, Johnson engaged in an erratic and high-speed flight

from agents shortly after the second transaction. Agents

recovered from Johnson the cash, identified unmistakably

by serial number, provided to Adebayo earlier that day to

purchase heroin from Mohammed. Together, Mohammed’s

testimony and the corroborating evidence provided sufficient evidence to support Johnson’s possession conviction.

See United States v. Smith, 393 F.3d 717, 719 (7th Cir.

2004). 

C. Buyer-Seller Defense Instruction

Johnson also claims that the district court erred by failing

to instruct the jury sua sponte that repeat drug sales alone

do not constitute a conspiracy. Because Johnson did not

tender a buyer-seller instruction or object to its omission,

we review for plain error. United States v. Askew, 403 F.3d
No. 04-2406 17

496, 502-03 (7th Cir. 2005). To reverse a conviction under

the plain error standard, we must find that: (1) an error

occurred; (2) it was “plain,” meaning obvious or clear; (3) it

affected the defendant’s substantial rights; and (4) it

seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. (quoting United States

v. Gibson, 356 F.3d 761, 765-66 (7th Cir. 2004)). District

courts should instruct juries that repeat transactions by

themselves do not constitute a conspiracy only if “the

instruction has some foundation in the evidence.” United

States v. Douglas, 818 F.2d 1317, 1320 (7th Cir. 1987).

In assessing the propriety of giving the instruction, we

consider whether the defendant put forth a buyer-seller

theory at trial. Askew, 403 F.3d at 503. Finding no error in

Askew, this Court noted that the defendant’s trial strategy,

denying any involvement with drugs instead of asserting a

buyer-seller defense, “cuts in favor of finding no error in the

district judge’s decision not to give the instruction.” Id. at

504. Here, as in Askew, it is undisputed that Johnson did

not advance a buyer-seller theory of defense. He argued

instead that he was “not a drug dealer” and so could not

have supplied Mohammed with heroin for the two transactions. The strength of the evidence indicating a conspiracy,

combined with Johnson’s decision at trial not to pursue a

buyer-seller theory of defense, leads to our conclusion that

the district court did not commit plain error by declining to

give the instruction sua sponte. See Askew, 403 F.3d at 504-

05. 

D. Intimidation of Defense Witness

Johnson further alleges that the government denied him

constitutional due process by threatening investigation and

indictment of a defense witness, Witness A, to prevent her

from testifying. We review allegations of prosecutorial

threatening of defense witnesses for abuse of discretion,
18 No. 04-2406

which arises where the prosecutor “intends to use his

authority to distort the judicial fact-finding process.” United

States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988). A

fundamental element of due process is the right of the

accused to present witnesses in his own defense. Id. (citing

Washington v. Texas, 388 U.S. 14 (1967)). Defense witnesses

must be free to testify without fear of governmental retaliation. United States v. Burke, 425 F.3d 400, 411 (7th Cir.

2005). The defendant’s right to present witnesses, however,

is tempered by the witness’s Fifth Amendment privilege not

to provide incriminating testimony. United States v. George,

363 F.3d 666, 671 (7th Cir. 2004). A prosecutor may

therefore caution a defense witness about the risks of

testifying, but “[w]here . . . the substance of what the

prosecutor communicates to the witness is ‘a threat over

and above what the record indicate[s] was timely, necessary, and appropriate,’ the inference that the prosecutor

sought to coerce a witness into silence is strong.” United

States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991) (quoting

United States v. Simmons, 670 F.2d 365, 369 (D.C. Cir.

1982)). 

At trial Johnson wanted Witness A to testify that she had

given Johnson $5,950, the amount seized by Officer Sapp

from Johnson’s car, so that Johnson could purchase a car on

her behalf. When she initially told agents that account in

February 2000, they gave her the money in order to keep

the investigation “covert.” Witness A was arrested and

indicted approximately a year later. Although Johnson now

describes this complaint as “flimsy,” the government is

correct in presuming that Witness A would have a difficult

time explaining how money that supposedly belonged to her

bore the serial numbers of bills that agents had given to

Adebayo to purchase heroin. In fact, she admitted while in

custody that Johnson had paid her $200 to fabricate the

story. As a result, the criminal complaint was dismissed

without prejudice because the government “expected her to
No. 04-2406 19

be a cooperating witness.” In fall 2003, shortly before the

trial was scheduled to begin, because she again reverted to

her original account of events, the government understandably designated her a subject of investigation once again. In

response to the defendant’s subpoena, Witness A invoked

her Fifth Amendment privilege against self-incrimination.

The government announced its changed position in the

following letter to defense counsel:

Witness A is currently the possible subject or target of

an investigation concerning false statements and/or

obstruction of justice concerning her statements on

February 24, 2000, and she may be charged with a

crime. The U.S. Attorney’s Office currently has not

provided Witness A with any consideration or promises

of consideration.

Significantly, this announcement was made to Johnson and

his counsel, not to Witness A. The fact that the disputed

language appeared in a court-ordered letter to defense

counsel, a rather inefficient medium for conveying threats

to a witness, suggests that it probably was not intended to

deter Witness A from testifying. After all, this line of cases

focuses on “what the prosecutor communicates to the

witness.” Jackson, 935 F.2d at 847. 

The government’s messages to a witness, conveyed

through defense counsel, have in the past been held to be

improper threats. See, e.g., United States v. Morrison, 535

F.2d 223, 225-26 (3d Cir. 1976). In Morrison, however, the

prosecutor’s conduct was far more flagrant; he sent messages to the witness through defense counsel on three

occasions communicating “that she was liable to be prosecuted on drug charges; that if she testified, that testimony

would be used as evidence against her and, further, that as

she was now eighteen it would be possible to bring federal

perjury charges against her.” Id. at 225. The prosecutor
20 No. 04-2406

further subpoenaed the witness and had her brought into

his office for a meeting with three undercover agents to

impress on her again the dangers of testifying. Id.

The letter sent by the government in this case does not

approximate the actions taken by the prosecutor in Morrison. Here, the letter conveyed accurate information about

the risks Witness A faced by testifying, and contained a

single warning instead of several. Where the prosecution

simply presents the facts to the witness, informing him that

he is the target of an investigation and providing him with

a warning, no constitutional violation occurs. Jackson, 935

F.2d at 847. Moreover, no evidence indicated that the letter

sent to defense counsel was intended as a message to

Witness A; to the contrary, the government sent the letter

to comply with a court order requiring disclosure of impeachment evidence. Because the letter was not directed to

Witness A and none of its language can fairly be construed

as overreaching or improper intimidation, there is no basis

in the record from which to conclude that the government

improperly threatened her, procured her unavailability, or

caused her to invoke the privilege. On the contrary, the

government had a reasonable basis to believe that Witness

A was a possible subject of prosecution. The court accordingly considered her assertion of the Fifth Amendment

privilege in light of the “plainly incriminating nature of the

proposed testimony.” George, 363 F.3d at 671. Thus, Johnson’s right to present a defense was not violated by Witness

A’s invocation of her Fifth Amendment privilege. 

E. Limited Remand

Finally, Johnson challenges his sentence, asserting that

the court’s mandatory application of the Guidelines made

the sentence improper. In United States v. Booker, the

Supreme Court held that “the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines.”
No. 04-2406 21

125 S.Ct. 738, 746 (2005). Accordingly, “[a]ny fact (other

than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Id. at 756. Because the court based

Johnson’s enhancement on his statements at the suppression hearing, none of the relevant facts were found by a

jury. Moreover, the parties do not dispute that at the time

of defendant’s May 2004 sentencing, the district court

regarded the Sentencing Guidelines as mandatory. 

Because the Supreme Court rendered the Guidelines

advisory, “the mere mandatory application of the Guidelines—the district court’s belief that it was required to

impose a Guidelines sentence—constitutes error.” United

States v. White, 406 F.3d 827, 835 (7th Cir. 2005) (citing

Booker, 125 S.Ct. at 769). It is impossible to say whether

the court would have imposed the same sentence knowing

that the Guidelines were advisory. Therefore, we order a

limited Paladino remand to determine whether the district

court, treating the Guidelines as advisory, would reimpose

the same sentence. See United States v. Paladino, 401 F.3d

471, 484 (7th Cir. 2005).

III. Conclusion

For the foregoing reasons, we AFFIRM Johnson’s conviction. While retaining jurisdiction, we remand to the district

court for proceedings consistent with Paladino, 401 F.3d at

483-84.
22 No. 04-2406

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-10-06