In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1036 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ADONNIS CARSWELL, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Fort Wayne Division. 

No. 1:17-cr-00039-HAB-SLC-1 — Holly A. Brady, Judge. 

____________________ 

ARGUED FEBRUARY 12, 2021 — DECIDED MAY 6, 2021 

____________________ 

Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges. 

HAMILTON, Circuit Judge. A jury convicted defendant-appellant Adonnis Carswell on four drug and ęrearm oěenses, 

including possession of heroin with intent to distribute. 21 

U.S.C. § 841(a)(1). He raises two issues on appeal. First, he 

contends that the search warrant for his residence was issued 

without probable cause, so that the heroin, cash, and ęrearms 
2 No. 20-1036 

found there should have been suppressed as evidence. Second, he contends that several portions of the prosecutor’s 

closing arguments violated his constitutional rights. 

We aĜrm. The judge who issued the search warrant had a 

reasonable basis for thinking evidence of drug and ęrearm 

crimes was likely to be found at Carswell’s home. The prosecution’s closing arguments were not improper, did not make 

Carswell’s trial unfair, and did not deny him due process of 

law. We address ęrst the search warrant issue and then the 

closing arguments. Key to both issues is Carswell’s trial defense, which was that the 64 grams of heroin seized in the 

search of his home was only for his personal use and that he 

was not distributing drugs of any sort. 

I. Probable Cause for the Search Warrant 

A. Facts and Procedural Background 

In June 2017, OĜcer Caleb Anderson with the Bureau of 

Alcohol, Tobacco, Firearms, and Explosives (ATF) sought a 

federal warrant to search for evidence of drug traĜcking and 

unlawful possession of a ęrearm in the New Haven, Indiana 

residence of defendant Adonnis Carswell and his partner, 

Dereka Evans. To establish probable cause, OĜcer Anderson’s supporting aĜdavit relied on three sources of information: a trash pull from Carswell’s driveway that turned up 

evidence of drugs, drug packaging materials, and a ęrearm 

purchase; Carswell’s prior drug-related activity; and a tip 

from a recently arrested drug dealer who identięed Carswell 

as his/her supplier. Even if we assume for purposes of the appeal that none of these three sources alone would have pro-
No. 20-1036 3

vided probable cause, we must consider them together. Together they gave the issuing judge probable cause to issue the 

warrant. 

The story begins on June 26, 2017, when police saw Carswell driving a Porsche over 100 miles per hour through a 45 

miles per hour zone of New Haven, Indiana. When police 

stopped him, he gave his home address on Green Road in 

New Haven. Law enforcement had suspected Carswell of 

drug dealing but had not yet ęgured out where he lived. After 

OĜcer Anderson learned of Carswell’s arrest, he carried out 

surveillance at the Green Road address for four days. He consistently observed a vehicle registered to Carswell parked in 

the driveway. 

On the ęrst evening of surveillance, OĜcer Anderson noticed two trash bins at the end of the driveway for pick-up. He 

returned just before midnight and removed several bags from 

the bins. He found the following items in one of the trash 

bags: (i) three opened food-saver bags; (ii) two one-gallon 

Ziploc bags containing residue that ęeld-tested positive for 

cocaine; (iii) two sandwich bags that ęeld-tested positive for 

cocaine; (iv) two pairs of white latex gloves; and (v) packaging 

that resembled a kilogram wrapper for cocaine that ęeldtested positive for cocaine. The kilogram packaging, which 

OĜcer Anderson identięed as green saran wrap, matched 

photographs of drug packaging used in a 2014 Indiana State 

Police case involving Carswell. OĜcer Anderson’s aĜdavit 

also said that green saran wrap is commonly used to wrap 

kilogram packages of cocaine. A kilogram typically costs between $25,000 and $35,000 and is not (remotely) a user quantity. 
4 No. 20-1036 

In a second trash bag, OĜcer Anderson found three grams 

of a pink crystal substance that he recognized as crystal methamphetamine and that later ęeld-tested positive for methamphetamine. His aĜdavit said that a personal user of methamphetamine was unlikely to discard three grams of the drug 

(valued at approximately $300). 

OĜcer Anderson also found receipts showing that Ms. Evans had purchased a CZ Scorpion EVO 3 pistol and four boxes 

of ammunition from a Fort Wayne ęrearms dealer in April 

2017. OĜcer Anderson explained that in his training and experience, it was common for people with prior felony convictions to have close associates, including girlfriends, buy ęrearms for them. 

OĜcer Anderson’s aĜdavit also provided background information on Carswell and Evans. Carswell had a 2004 felony 

conviction for armed bank robbery. The aĜdavit described a 

recent Indiana State Police investigation involving intercepted shipments of marijuana to Fort Wayne addresses associated with Carswell. In March 2015, oĜcers identięed a ęvepound package of marijuana on its way to one of those addresses, located on Stormy Court. OĜcers had obtained a 

warrant and made a controlled delivery. When Carswell, Evans, and two children arrived, Carswell took the package inside. When the package was opened, oĜcers executed their 

search warrant. They found the bundle of marijuana encased 

in green saran wrap, as well as $7,240 in cash, a Glock .40 caliber pistol, a ballistic body-armor vest, documents and mail in 

Evans’ name, documents and mail in Carswell’s name, three 

drug ledgers, several cell phones belonging to Carswell, a digital scale with cocaine residue, a plate with cocaine residue, 
No. 20-1036 5

plastic bags, and rubber gloves. Carswell was eventually convicted in Indiana state court of maintaining a common nuisance. 

Finally, OĜcer Anderson’s aĜdavit reported May 2017 

statements by a person arrested for unlawful possession of a 

ęrearm. The arrestee’s residence contained evidence of drug 

traĜcking, including $3,000 in cash, a ęrearm near materials 

used to dilute cocaine and heroin, 386 grams of marijuana, 24 

grams of crack cocaine, 58 grams of heroin, and 6 grams of 

fentanyl. The arrestee told OĜcer Anderson that he/she 

earned about $20,000 per month by dealing drugs. The person 

identięed Carswell and Carswell’s brother, Jashod Thomas, 

as the suppliers. The arrestee claimed that Thomas had supplied cocaine, crack cocaine, and heroin two days prior to the 

arrest. The arrestee further claimed that Thomas had been 

supplied by Carswell.1 

A federal magistrate judge issued a warrant to search 

Carswell’s Green Road residence based solely on OĜcer Anderson’s aĜdavit. OĜcers conęscated 64 grams of heroin, 

ęve cell phones, $25,000 in cash, ęrearms and ammunition, 

and drug packaging materials, including two digital scales 

that ęeld-tested positive for cocaine and a machete laced with 

marijuana residue. Carswell was charged with federal drug 

and ęrearm oěenses. 

Carswell moved to suppress all evidence seized in the 

search of his residence, asserting that the warrant failed to establish probable cause. The district court denied the motion, 

1 The arrestee had provided addresses for Carswell, but Officer Anderson had been unable to locate Carswell at those addresses. The arrestee 

had not provided the Green Road address. 
6 No. 20-1036 

ęnding that OĜcer Anderson’s aĜdavit established a fair 

probability that a search of Carswell’s residence would reveal 

evidence of drug traĜcking and unlawful possession of a ęrearm. The court did not reach the government’s back-up argument that the evidence should not be suppressed because ofęcers relied in good faith on a facially valid warrant, per 

United States v. Leon, 468 U.S. 897, 922 (1984). 

B. Analysis 

The Fourth Amendment provides “no Warrants shall issue, but upon probable cause, supported by Oath or aĜrmation ....” Probable cause for a search warrant is established 

when, based on the totality of the circumstances, the government presents a judge with evidence showing a “fair probability that contraband or evidence of a crime will be found in 

a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); 

United States v. Jones, 208 F.3d 603, 608 (7th Cir. 2000). On appeal we give no special weight to the district court’s legal conclusion about probable cause, but we defer to the issuing 

judge’s decision so long as substantial evidence supported it. 

United States v. Curry, 538 F.3d 718, 729 (7th Cir. 2008). When 

an aĜdavit is the only evidence presented to support a search 

warrant, the validity of the warrant rests solely on the 

strength of the aĜdavit. United States v. Orozco, 576 F.3d 745, 

748 (7th Cir. 2009). 

The task of the issuing judge is to make a “practical, commonsense decision” whether, in light of the facts in the aĜdavit, there is a fair probability that contraband or evidence of a 

crime will be discovered in a particular place. United States v. 

Koerth, 312 F.3d 862, 866 (7th Cir. 2002), quoting Gates, 462 U.S. 

at 238; accord, e.g., United States v. Aljabari, 626 F.3d 940, 944 
No. 20-1036 7

(7th Cir. 2010) (this is a “common-sense, non-technical determination”). The judge is entitled to draw reasonable inferences about where evidence is likely to be kept and must conclude only that it would be reasonable to seek the evidence in 

the location identięed in the aĜdavit. Curry, 538 F.3d at 729. 

Nevertheless, a judge may not rely solely upon “conclusory 

allegations” or a “bare bones” aĜdavit in issuing a warrant. 

Id., quoting Koerth, 312 F.3d at 867. 

Here, the issuing judge reasonably found a fair probability 

that evidence of drug and ęrearm crimes would be found at 

Carswell’s Green Road residence. On appeal, Carswell challenges each of the three legs of the stool that OĜcer Anderson 

and the issuing judge used to support probable cause. 

The trash pull found drugs, drug residue, drug packaging 

materials, and a receipt for a ęrearm and ammunition, 

providing substantial reason to think one might ęnd drugdistribution and ęrearm evidence in the Carswell residence. 

See United States v. McDuěy, 636 F.3d 361, 364 (7th Cir. 2011) 

(“[E]ven a tiny bit of discarded drugs increases the likelihood 

that police will ęnd more in the home.”); United States v. Billian, 600 F.3d 791, 794 (7th Cir. 2010) (small quantities of marijuana in defendant’s trash indicated that there was marijuana in his house, not that small quantities were all he possessed). 

Carswell points out that two trash pulls with drug evidence would be more compelling than just one because of the 

possibility that someone else could have dropped her trash in 

the bins at the end of his driveway. Cf. United States v. Leonard, 

884 F.3d 730, 734–35 (7th Cir. 2018) (two trash pulls, a week 

apart, both testing positive for cannabis, were suĜcient to establish probable cause for search warrant). We suppose it is 
8 No. 20-1036 

possible that other people dropped their drug-related trash in 

Carswell’s bins that particular week. But that possibility does 

not necessarily defeat probable cause, which deals with, well, 

probability, not certainty. See United States v. Sidwell, 440 F.3d 

865, 869 (7th Cir. 2006) (“theoretically possible” scenario submiĴed by defendant was not enough to negate existence of 

probable cause). (Not to mention the receipt for Evans’ purchase of the CZ Scorpion pistol and ammunition, and the ample evidence linking Carswell and Evans to the Green Road 

residence.)2

In addition to the drug and ęrearm evidence from the 

trash pull, the aĜdavit noted Carswell’s criminal history, including the armed robbery and the nuisance conviction from 

the receipt of distribution quantities of marijuana. Such prior 

convictions will not by themselves establish probable cause 

for a search today, of course. (Recall Captain Renault’s iconic 

line at the end of Casablanca, “Round up the usual suspects ....”) But those prior convictions can be relevant and 

“retain some corroborative value.” United States v. Olson, 408 

F.3d 366, 372 (7th Cir. 2005); see also McDuěy, 636 F.3d at 364 

(prior drug convictions not dispositive but relevant and entitled to some weight in casting doubt on any innocent explanations for the marijuana trace in trash, a currency handoě, 

and a stream of visitors to suspect’s home); United States v. 

Smith, 581 F.3d 692, 694 (8th Cir. 2009) (interpreting evidence 

from suspect’s trash in light of prior conviction). 

2 The affidavit also connected Evans to Carswell. For example, in 2014 

and 2015, Evans and Carswell shared the Stormy Court residence where 

Carswell received the marijuana bundle. And on June 26, 2017, Evans 

picked up Carswell when his Porsche was impounded after his speeding 

offense. 
No. 20-1036 9

Carswell also points out that the informant’s tip lacked detail and that no information was provided about the informant’s reliability or basis of knowledge. We assume that the informant’s tip would not have been enough by itself to support 

a search warrant. See, e.g., Olson, 408 F.3d at 370 (newly arrested informant “merits a greater dose of skepticism when 

assessing his credibility”); United States v. Peck, 317 F.3d 754, 

757 (7th Cir. 2003) (“Given the deęciencies in the warrant application, we cannot ęnd that [the conędential informant’s] 

oath compensates for the lack of detail in the aĜdavit and the 

failure of the police to corroborate her statements.”). That’s 

why we ordinarily expect police oĜcers to corroborate information from tipsters of unknown reliability. See McDuěy, 636 

F.3d at 364 (informant’s report was “ęrsthand and precise, 

and thus more reliable”); Olson, 408 F.3d at 371–72 (emphasizing that some corroboration of informant’s account was essential to uphold warrant); Jones, 208 F.3d at 609 (“OĜcer 

Welsh corroborated as much of Jane Doe’s information as he 

could before seeking the search warrant.”); United States v. 

Singleton, 125 F.3d 1097, 1104 (7th Cir. 1997) (highlighting “independent, often contemporaneous, police corroboration” of 

informant’s controlled buys). 

Here the investigators had substantial corroboration, 

which poses the biggest obstacle for Carswell’s challenge to 

the search warrant. When we evaluate a probable cause ęnding, we do not view the individual facts in isolation. We consider the totality of the circumstances presented to the judge. 

United States v. Fifer, 863 F.3d 759, 764 (7th Cir. 2017). The determination is rooted in common sense. It requires only a fair 

probability—not certainty—that the search will uncover evidence of criminal activity. Gates, 462 U.S. at 238 & 243 n.13; 
10 No. 20-1036 

Curry, 538 F.3d at 729; Koerth, 312 F.3d at 866. The combination of the drug and ęrearm evidence from the trash pull, 

Carswell’s prior convictions, and the informant’s tip was 

enough to support, even if not to require, a ęnding of probable cause for the search warrant. We need not address the ofęcers’ good-faith reliance on the warrant. The district court 

properly denied Carswell’s motion to suppress the evidence 

seized pursuant to the search warrant. 

II. Closing Arguments and the Claims of Prosecutorial Misconduct 

A. Facts and Procedural Background 

1. The Search of Carswell’s Green Road Residence 

To explain Carswell’s numerous challenges to the closing 

arguments, we need to lay out much of the evidence presented at trial. When federal agents executed the search warrant, they found extensive evidence of drugs and ęrearms. 

Carswell’s only defense at trial was that the 64 grams of heroin found in the search was only for his personal use, not for 

distribution. 

In the master bedroom, agents found two ęrearms, ammunition, ęve cell phones, and thousands of dollars in cash. The 

CZ Scorpion EVO 3 pistol—listed on the receipt from the 

trash pull—was under the bed, loaded with twenty-one 

rounds in the magazine and one in the chamber. In the 

dresser, oĜcers found a purse with Evans’ identięcation and 

handgun permit. 

In the master bedroom closet, and close to Carswell’s wallet, oĜcers found a Zastava AK-47 Variant riĚe loaded with 

60 rounds of ammunition. Also close to the riĚe, oĜcers 

found men’s clothing, a Rolex watch, and a digital safe. From 

inside the safe, oĜcers recovered $3,000 in cash. A second safe 
No. 20-1036 11

held $20,404 in cash banded into sets of thousands. Agents recovered a total of $25,464 in cash. 

In the kitchen, agents found a Smith & Wesson pistol 

loaded with ten rounds, including one in the chamber. A cabinet held extra magazines for the Smith & Wesson and CZ 

Scorpion pistols, a box of ammunition, and, most notably, 64 

grams of heroin. Agents also found two digital scales that recorded weights up to 13 pounds and later ęeld-tested positive 

for cocaine. The basement smelled of raw marijuana, and 

agents found green plastic saran wrap and a machete laced 

with marijuana residue.3

Agents examined photographs and text messages from 

Carswell’s cell phones. One photo showed a partial brick of 

cocaine next to three individual portions atop a scale. The 

scale read “64,” which ATF Agent Thomas Kaiser interpreted 

to mean 64 ounces or four pounds of cocaine. The counter and 

the scale in the photo matched the counter and one of the digital scales found in Carswell’s kitchen. Another photo showed 

44 pounds of marijuana bundled into three large bales atop a 

Ěoor scale.

2. Carswell’s Statements During the Search 

During the search, Carswell was taken to his dining room.

He volunteered to Agent Kaiser: “It’s all personal.”4 Carswell 

3 A government witness testified that machetes are commonly used to 

break apart bales of marijuana. 

4 Carswell’s out-of-court statement was offered by the government. 

On direct examination, Agent Kaiser testified that Carswell briefly engaged him in a conversation about sports. The conversation quickly pivoted to the possibility of finding narcotics in Carswell’s home. Agent Kaiser testified that “from what I could gather,” Carswell told him: “Just put 
12 No. 20-1036 

was later interviewed by OĜcer Anderson and ATF Agent 

Sean Skender. OĜcer Anderson and Agent Skender asked 

Carswell if he had used drugs within the last twenty-four 

hours. Carswell replied “marijuana” and clarięed that he had 

used the drug a “few times” the day before. Carswell later admiĴed that there was heroin in the kitchen cabinet and 

claimed that he used heroin but was not addicted to it. During 

the interview, Carswell wore boxer shorts and a sleeveless undershirt. Agents did not observe track marks on his arms and 

legs or any other physical signs of heroin use. 

3. Trial Evidence 

Carswell did not testify or oěer other evidence, but his 

counsel used cross-examination to lay a foundation for his 

personal-use defense theory. Defense counsel conęrmed that 

Carswell had told the agents during the search that the heroin 

in the kitchen was “for personal use.” As another example, 

one agent acknowledged that heroin can be consumed nasally—i.e., snorted—through a rolled-up dollar bill, for example, without needles or evidence of smoking. 

To rebut Carswell’s personal-use theory, the government 

called a veteran DEA agent, Howard Schneider, Jr., as an expert witness in drug traĜcking. Agent Schneider testięed that 

heroin is very addictive, both emotionally and physically. It is 

common, he said, for heroin users to consume the drug every 

day. It is also common for those who stop using heroin to become “dope sick,” causing them to sweat, vomit, and suěer 

Ěu-like symptoms. Agent Schneider testięed that if a heroin 

it in your pocket, $10,000.” Agent Kaiser testified that he responded: “Are 

you referring to narcotics?” Carswell replied, “It’s all personal.” 
No. 20-1036 13

user had not used heroin within the past twenty-four hours, 

he would expect the person to be “dope sick.” 

Agent Schneider also testięed that heroin users typically 

smoke or inject the drug. He testięed that heroin users who 

snort the drug tend to have straws or thin glass tubes, while 

those who inject the drug have a “kit” consisting of a needle, 

spoon, belt (or tourniquet) to prepare the veins, and a pocket 

scale that can measure the tenths of grams that constitute the 

typical single dose.5 To that point, Agent Schneider added, the 

digital scales found in Carswell’s kitchen—which recorded 

weights up to 13 pounds—were not typical user scales. 

Agent Schneider also testięed that in his experience, users 

possess “very small amounts” of heroin. The largest quantity 

that a user will possess, he explained, would be an “eight 

ball,” about three grams. Agent Schneider explained that a 

lack of self-control combined with a desire to avoid withdrawal prevents the average heroin user from possessing 

large quantities of the drug at any given time. For similar reasons, he said, heroin users do not typically possess large sums 

of cash. Agent Schneider said he had never encountered a heroin user who possessed a month’s supply, let alone a year’s 

supply, of heroin. In his experience, therefore, 64 grams of 

heroin was “distribution quantity.”6

5 Agent Schneider testified that a typical single dose of heroin is 0.1 

gram, but a heavy user might consume up to three grams in a single dose.

6 On cross-examination, Agent Schneider conceded that heroin has a 

long shelf life, and that, as with many other products, it can be cheaper if 

bought in bulk. He also said that a person who snorts the drug typically 

will use a larger quantity in a single dose than a person who injects it. And 
14 No. 20-1036 

4. Closing Arguments 

The government’s closing arguments focused on the issue 

of intent to distribute versus personal use. The government 

emphasized Agent Schneider’s opinions about the physical 

evidence seized from Carswell’s home—ęrearms, ammunition, packaging for distribution, lots of cash, the quantity of 

heroin—and the absence of physical evidence of personal use, 

including the absence of evidence of dope sickness. 

Carswell contends that several of the government’s remarks violated his right to a fair trial under the due process 

clause of the Fifth Amendment. Carswell argues that the government: (i) directly and indirectly commented on his decision not to testify or present evidence at trial; (ii) argued that 

he was not “dope sick” without any basis in the record; (iii) 

argued that he operated a “stash house” with his brother 

without any basis in the record; and (iv) exaggerated the 

amount of heroin he possessed by misstating the evidence. 

Most of the challenged comments came in this passage: 

Consider the defendant’s credibility. The only 

evidence the defendant has placed—don’t get 

me wrong. He doesn’t have to do anything if he 

doesn’t want to. He doesn’t have to testify or 

none of that. You are entitled to consider what 

evidence is in front of you through the exhibits 

and what’s come in through the witness stand. 

he acknowledged that heroin can be snorted from a surface without any 

special equipment.
No. 20-1036 15

So he did say that the heroin was personal use. 

But evaluate that credibility. What is the credibility of that statement? And the Judge is going 

to give you an instruction on credibility. And it 

talks about a couple of concepts that I think are 

important for you to consider. One of them is 

whether the defendant has a reason to lie. Is 

there any bias, prejudice or other reason to lie or 

slant the statement? The truthfulness and accuracy of the witness’ statement—and this is the 

testimony instruction—but Mr. Carswell’s 

statement in light of other evidence presented, 

and any inconsistent statements or conduct. 

So consider that statement in light of the evidence. Does it make sense? With all this evidence of intent to distribute, that statement is 

just not a credible statement. 

... His conduct is just simply not consistent with 

a user. He’s not dope sick and he’s got all those 

other tools of the drug traĜcking trade: The ęre 

power, the cash, the assets, the vehicles. 

B. Analysis

In our view, none of the challenged remarks were improper, and none deprived Carswell of a fair trial. To evaluate 

such claims of prosecutorial misconduct, we ęrst determine 

whether the remarks by the prosecutor were improper when 

viewed in isolation. United States v. Common, 818 F.3d 323, 331 

(7th Cir. 2016). If not, the analysis ends there and the defendant’s claim fails. United States v. Love, 336 F.3d 643, 647 (7th 

Cir. 2003). If any remarks were improper, we would evaluate 
16 No. 20-1036 

them in light of the entire record and determine whether they 

deprived the defendant of a fair trial. Common, 818 F.3d at 331. 

We would consider: (i) whether the prosecutor misstated the 

evidence; (ii) whether the remark implicated the specięc 

rights of the accused; (iii) whether the defense invited the response; (iv) the eěect of any curative instructions; (v) the defendant’s opportunity to rebut; and (vi) the weight of the evidence. United States v. Hale, 448 F.3d 971, 986 (7th Cir. 2006); 

Love, 336 F.3d at 647–48. The weight of the evidence is by far 

the most important factor. Love, 336 F.3d at 648. 

Defense counsel did not object to any of these remarks at 

trial. That means our review is even more deferential to the 

district court, limited to “plain error.” United States v. Tucker, 

714 F.3d 1006, 1011 (7th Cir. 2013). Under the plain-error 

standard, we determine whether there was: (i) an error (ii) 

that was plain, meaning, clear or obvious, (iii) that seriously 

aěected Carswell’s substantial rights to the extent that he 

probably would not have been convicted absent the error, and 

(iv) that seriously aěected the fairness, integrity, or public 

reputation of the judicial proceedings. Id. Put another way, we 

ask whether the remarks were so egregious that the district 

judge was obliged, upon pain of reversal, to step in even without a defense objection. United States v. Briseno, 843 F.3d 264, 

269 (7th Cir. 2016); United States v. Alexander, 741 F.3d 866, 870 

(7th Cir. 2014). 

1. Carswell’s Decision Not to Testify at Trial 

Carswell argues that the government’s argument improperly commented on his decision not to testify or present evidence at trial. The Fifth Amendment protects a defendant’s 

right against compelled self-incrimination by permiĴing a de-
No. 20-1036 17

fendant to refuse to testify at trial. The corollary of that protection is that a prosecutor may not make comments, either 

directly or indirectly, that invite the jury to infer guilt from 

the defendant’s decision not to testify. GriĜn v. California, 380 

U.S. 609, 615 (1965); Tucker, 714 F.3d at 1014. This important 

and general protection, however, does not silence the prosecution when the defense makes arguments not supported by 

credible evidence. The prosecution is well within its rights in 

pointing out the absence or weakness of defense evidence. 

To preserve this balance, we have explained often that the 

Fifth Amendment may forbid a prosecutor’s comment on the 

absence of a particular category of potential defense evidence 

when the only source of the potential evidence would have 

been the defendant himself. See United States v. Cotnam, 88 

F.3d 487, 497 (7th Cir. 1996) (collecting cases explaining that 

the Fifth Amendment forbids prosecutorial comment on a 

failure to call witnesses when the only potential witness was 

the defendant himself); see also, e.g., Tucker, 714 F.3d at 1015 

(“Although [defendant] did exercise his right not to testify, he 

was not the only witness capable of contradicting the Government’s version of the facts.”); cf. United States v. Handman, 447 

F.2d 853, 855 (7th Cir. 1971) (reversing conviction where government commented on absence of evidence that could have 

come only from the defendant himself). Accord, e.g., United 

States v. Williams, 479 F.2d 1138, 1140 (4th Cir. 1973) (collecting 

cases from First, Second, Third, Fourth, and Tenth Circuits to 

support proposition that even after GriĜn, “the prosecutor 

may point out that the defense did not oěer evidence to contradict the government’s case ... at least where it is apparent 

that witnesses other than the defendant might have been offered by the defense”); Desmond v. United States, 345 F.2d 225, 

227 (1st Cir. 1965) (“Nor can we doubt that the government’s 
18 No. 20-1036 

statement that its witness’ statement stood ‘unimpeached and 

uncontradicted’ constituted improper comment. No one but 

appellant (or his co-defendant, whom appellant could not put 

on the stand against his will) could have contradicted the government witness.”); United States v. Taylor, 848 F.3d 476, 488–

89 (1st Cir. 2017), citing Desmond, 345 F.2d at 227. 

A prosecutor violates the Fifth Amendment by commenting directly and adversely on the defendant’s failure to testify 

on his own behalf. United States v. Hills, 618 F.3d 619, 640 (7th 

Cir. 2010). Where a prosecutor indirectly comments on the defendant’s failure to testify, such a comment will be deemed 

improper only if the prosecutor’s “manifest intent” was to use 

the defendant’s silence as evidence of guilt, or if the jury 

would “naturally and necessarily” infer guilt from the comment. Id.; United States v. Mietus, 237 F.3d 866, 871 (7th Cir. 

2001). 

Carswell challenges three comments on this ground. First, 

he points to the government’s comment that he did not have 

to testify: 

Consider the defendant’s credibility. The only 

evidence the defendant has placed—don’t get 

me wrong. He doesn’t have to do anything if he 

doesn’t want to. He doesn’t have to testify or 

none of that. 

This comment closely tracked the trial court’s correct and 

more formal instructions on the defendant’s right not to testify. It was not improper at all. 

The government continued: “You are entitled to consider 

what evidence is in front of you through the exhibits and 

what’s come in through the witness stand.” Carswell argues 
No. 20-1036 19

that this statement, made in the context of discussing the credibility of his “It’s all personal” statement to agents during the 

search, was an improper indirect reference to his decision not 

to testify. We do not see how the government can be faulted 

for this comment. It merely repeated the essence of the court’s 

standard instructions about what counts as evidence. The defendant’s statement that the 64 grams of heroin was for his 

personal use was in evidence. The government was entitled to 

respond by asking the jury to evaluate the credibility of that 

statement in light of all the evidence. 

This is not a case where the only supporting evidence 

could have come from the defendant himself, so that a comment on the absence of supporting evidence might be interpreted as an indirect comment on his choice not to testify. Yes, 

Carswell could have testięed himself about this. But he also 

could have oěered evidence of paraphernalia indicating personal use, yet there was none. Or perhaps he could have offered evidence from his partner or friends who knew he used 

large quantities of heroin himself. Again, no such evidence 

was oěered. The government was entitled to point out that 

the defendant’s self-serving “personal use” statement was not 

credible because it was not supported by other evidence and 

was contradicted by a great deal of evidence. Those arguments did not violate the defendant’s Fifth Amendment privilege. As noted above, pointing out the lack of witness testimony or exhibits supporting the defendant’s theory does not 

violate the Fifth Amendment, at least so long as the defendant 

was not the only potential source of such evidence. Cf. United 

States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968) (“The commentary focused on the evidence as a whole and did not emphasize [defendant]’s failure to testify.”). 
20 No. 20-1036 

Carswell also points to the government’s comments on 

judging his credibility: 

So he did say that the heroin was personal use. 

But evaluate that credibility. What is the credibility of that statement? And the Judge is going 

to give you an instruction on credibility. And it 

talks about a couple of concepts that I think are 

important for you to consider. One of them is 

whether the defendant has a reason to lie. Is 

there any bias, prejudice or other reason to lie or 

slant the statement? The truthfulness and accuracy of the witness’ statement—and this is the 

testimony instruction—but Mr. Carswell’s 

statement in light of other evidence presented, 

and any inconsistent statements or conduct. 

So consider that statement in light of the evidence. Does it make sense? With all this evidence of intent to distribute, that statement is 

just not a credible statement. 

Carswell argues that these comments misstated the instructions because the instructions applied only to witnesses and 

he did not testify. The jury, Carswell suggests, was likely confused by the government’s instruction that it should evaluate 

his statements to oĜcers during the search as though he had 

testięed. 

We disagree. First, juries often must evaluate the credibility of statements made outside of court. Consider the numerous exceptions to the general rule against hearsay. If an outof-court statement is oěered to prove the truth of the statement, the credibility of the statement is fair game. Although 
No. 20-1036 21

Carswell’s self-serving statement, that the 64 grams of heroin 

was for his personal use, was introduced by the government 

in this case, the statement served as the foundation for his entire theory of defense. The government was perfectly entitled 

to argue why that self-serving statement was not credible. 

Moreover, the judge specięcally instructed the jury about 

the defendant’s statement in this case: 

You have heard testimony and received evidence that the Defendant made a statement to 

law enforcement oĜcers. You must decide 

whether the Defendant actually made the statement and, if so, how much weight to give the 

statement. In making these decisions, you 

should consider all of the evidence, including 

the Defendant’s personal characteristics and the 

circumstances under which the statement may 

have been made. 

The government’s comments ęt right in with this instruction 

and did not comment indirectly on Carswell’s decision not to 

testify. 

2. Carswell’s Lack of “Dope Sickness”

Carswell argues next that no evidence supported the government’s argument that he was not “dope sick” while speaking with oĜcers during the search, so that he could not have 

been a heroin user. We disagree. The combination of the 

agents’ observations of Carswell and Agent Schneider’s testimony about heroin users more generally was enough to support the point made in argument. 
22 No. 20-1036 

3. The “Stash House” Comment 

During closing arguments, the prosecutor reviewed text 

messages from Carswell’s cell phones, including one saying 

that Carswell had “people in Chicago that want 2, but they 

only pay 27, if that’s cool. I’ll make it happen?” The prosecutor 

also argued that one exchange between Carswell and an unidentięed person indicated that Carswell’s brother was operating a stash house connected to Carswell.7 The prosecutor 

said in closing: “Sounds like liĴle brother is operating a stash 

house that’s connected to Mr. Carswell, because Mr. Carswell 

provides the phone so the other guy can take care of it.” Carswell argues that this “stash house” comment went beyond the 

evidence. Counsel are allowed to comment on and argue inferences from the evidence. The “stash house” inference 

strikes us as a fairly long stretch, but there was no objection. 

This minor and tangential point did not deprive Carswell of a 

fair trial. 

4. Exaggeration of the Heroin Amount? 

Carswell complains that the government unfairly exaggerated the quantity of 64 grams of heroin by a mistaken analogy 

and by seeming to misquote defense counsel’s argument. 

First, the prosecutor said: 

if you’re a casual user, why in the world would 

you buy 64 grams of heroin for $8,000? Doesn’t 

make any sense at all. That’s like if you’re a wine 

7 “Also, on that phone number 18, incoming message, ‘I now’—probably means [know]—‘I now that I was seeing if yo little brother had an E.’ 

‘E,’ we know, means ... an eighth of a kilogram of cocaine. Mr. Carswell 

says, ‘Let me check,’ and then he provides that phone number, apparently, 

his little brother.” 
No. 20-1036 23

drinker, going to the liquor store and buying, I 

don’t know, half a truck load or something, just 

because you might drink it in the next 10 years 

or so. 

Recall that the evidence was that Carswell possessed 64 grams 

of heroin, that a typical dose is 0.1 grams, but that some heavy 

users might use as much as three grams per dose. (We see no 

evidence at all that Carswell was such a heavy user.) Carswell 

says the government’s analogy with ten years of wine inĚated 

the amount of heroin he possessed by roughly sixty times the 

actual amount. We ęnd no reversible or plain error here. This 

is the kind of loose analogy (“I don’t know,” the prosecutor 

said) that jurors were unlikely to treat as precise. If a timely 

objection had been made, the judge might have been able to 

order the government to make it more precise. On the other 

hand, an objection demanding clarięcation or correction 

might have focused more aĴention on the analogy that it deserved. In the absence of an objection, the judge was not 

obliged to intervene on this rhetorical Ěourish. 

Finally, Carswell complains about this statement in the 

prosecutor’s rebuĴal: 

consider the surrounding circumstances, consider the context, consider the totality of the evidence to decide whether an individual simply 

intended to use this massive ball of heroin, as 

[defense counsel] describes it, or whether he 

was intending to distribute it. 

Carswell argues that the “massive ball” phrase misquoted defense counsel when it was too late to respond. Defense counsel had referred to it as a “ball of heroin” and as “a simple ball 
24 No. 20-1036 

of heroin.” We do not read the prosecutor’s comment as necessarily aĴributing “massive” to defense counsel, but that 

point is not decisive. Both counsel “spun” the undisputed 

quantity, one labeling it “simple” and the other “massive.” 

Counsel in closing arguments spin and sometimes misstate 

the evidence. That’s why this judge and virtually all other 

judges instruct juries to focus on the evidence and to discount 

what counsel say in closing. And when counsel misstate the 

evidence, a timely objection can lead to a quick ęx by the 

judge. The use of “massive” did not amount to a plain error 

that denied Carswell a fair trial or due process of law. 

The key evidence against defendant Carswell was seized 

under a proper search warrant, and he was convicted in a fair 

trial. The judgment of the district court is AFFIRMED.