In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3209

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GARY STEVENSON,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 07 CR 30178—William D. Stiehl, Judge.

ARGUED MARCH 31, 2011—DECIDED SEPTEMBER 7, 2011

Before CUDAHY, POSNER, and MANION, Circuit Judges.

MANION, Circuit Judge. A jury convicted Gary

Stevenson of one count of conspiracy to distribute and

possess with intent to distribute cocaine and crack cocaine. The district court sentenced Stevenson to life imprisonment. Stevenson appeals, arguing that the

district court erred in admitting evidence related to

his distribution and use of marijuana and that the

verdict is not supported by the evidence, but rather

constitutes a variance from the indictment. We affirm.
2 No. 09-3209

Juries convicted Hogan, Moore, Talton and Wilkins, and they 1

were sentenced, respectively, to life, 360 months’, 160 months’,

and 121 months’ imprisonment. All four appealed their convictions to this court. Prior to oral argument, the government

confessed error, namely the failure to prove venue in the

(continued...)

I.

In 2007, the Drug Enforcement Administration (“DEA”)

began investigating a crack and cocaine distribution

ring operating out of St. Louis, Missouri. The investigation resulted in the eventual charge of defendantappellant Gary Stevenson, in a fourth superseding indictment, with one count of conspiring to distribute and

possess with the intent to distribute crack and cocaine. An

initial indictment had charged Stevenson, Diallo Bohanna

and Kimyata Young with one count of conspiracy to

distribute and possess with intent to distribute cocaine

and crack cocaine. A second, third, and fourth superseding indictment were later returned, adding as codefendants Gloria Stevenson (Gary’s mother), Shalonda

Byrth, Herman Moore, Gregory Hogan, Dave Kent, Tony

Friends, Jr., Pamela Stevenson (Gary’s sister), Priscilla

Hawkins, Nathaniel Lewis, Ernest Miller, Sr., Kenneth

Talton and Jennifer Wilkins. All of the co-defendants

pleaded guilty, with the exception of Gary Stevenson,

Hogan, Moore, Talton, and Wilkins, who pleaded not

guilty and proceeded to trial in the Southern District of

Illinois. The trials were severed for all of the defendants,

except for Hogan and Wilkins who were tried together.

This appeal concerns only Gary Stevenson’s trial.1
No. 09-3209 3

(...continued) 1

Southern District of Illinois, to defendants Wilkins and Moore

and their convictions were vacated. See United States v. Wilkins,

No. 09-3457 (January 28, 2011); United States v. Moore, No. 09-

3731 (January 28, 2011). Following oral argument, the government filed a motion to confess error to defendants Talton and

Hogan, again on the basis of the lack of venue in the Southern

District of Illinois. We granted that motion and their convictions

were likewise vacated. See United States v. Talton, No. 09-2751

(April 28, 2011); United States v. Hogan, No. 09-3588 (April 28,

2011). Stevenson’s appeal is the only one remaining before us.

At Stevenson’s trial, in addition to government agents,

Friends, Young, Byrth, Miller, Hawkins, Pamela Stevenson, Lewis, Bohanna, and Kent testified. Stevenson

did not testify, nor did he call any witnesses in his defense. The government witnesses testified as follows:

Stevenson lived in St. Louis, Missouri and, on a weekly

basis from 2003 to 2007 sold large quantities of crack

cocaine to Miller and Kent, among others. At times,

Miller and Kent would pay cash, and at other times,

Stevenson would front them the crack and they would

pay Stevenson later. Stevenson also sold large amounts

of powder cocaine to Bohanna on a weekly basis from

2006 to 2007, again regularly fronting the drugs to

Bohanna.

Beginning in 2006, Stevenson traveled to Kansas City,

Missouri to purchase marijuana and cocaine from Tony

Friends. Before leaving St. Louis, Stevenson or Moore

would remove speakers from his automobile and hide

money for the drug purchase inside the speakers, before
4 No. 09-3209

reinstalling the speakers in a courier car. Then one of

several women (Pamela Stevenson, Byrth, Wilkins, or a

woman only identified at trial as “Sweet Pea”) would

proceed in the money-laden courier car to Kansas City.

(Stevenson purposely enlisted women to act as couriers,

believing that females were less likely to attract the attention of law enforcement.) Stevenson paid the

couriers several hundred dollars per trip, although he

never paid his sister Pamela. But, as Pamela testified at

trial, she “was more like hook my man up with

marijuana and I be cool.” And Pamela indirectly

benefitted by this arrangement because she and her

boyfriend, Talton, resold the marijuana they received

from Stevenson out of the residence they shared with

Pamela’s three children.

In addition to the women couriers, Stevenson also

paid Lewis to drive a “trail car” during the round trips

to Kansas City. As a trail car driver, Lewis was

responsible for keeping in contact with the couriers en

route and for watching out for any law enforcement

presence. And if there were any problems, he was to

contact Stevenson and inform him of the difficulties.

Sometimes, though, Stevenson himself would drive

the trail car with a friend or a girlfriend. Kimyata Young

testified that she went with Stevenson to Kansas City

on one occasion, although she claimed she did not

know the true purpose of the trip at first—she thought

she was going shopping. In fact, when Young first met

him, Stevenson told her that he was a police officer

who worked for the Drug Task Unit. But she soon
No. 09-3209 5

learned the truth. Notwithstanding the fact that Young

was well educated (she had a Master’s degree and was

a licensed clinical social worker) and gainfully

employed (making in the mid-$30,000), she not only

continued to associate with Stevenson, but also helped

him by storing cocaine and marijuana at her home.

At trial, the couriers and trail-car drivers testified that

when they arrived in Kansas City, they would go to

Friends’ home. There, they would back the courier car

into Friends’ garage and then wait for Stevenson and

Friends, and sometimes help them, to remove the drug

money from the speakers and replace it with cocaine

and/or marijuana. Friends testified that he served as a

middleman for the transaction and that the drugs were

supplied by an individual from Mexico named Ramone.

Ramone was also present on several occasions during

the drug exchanges.

After packing the courier car with the drugs, the

courier would return to St. Louis, with Stevenson or

others following in the trail car. Most of the time when

they arrived the courier car would be taken to the home

of Stevenson’s mother. There Stevenson, Moore, or

Talton would remove the speaker box and bring it into

the kitchen, where it would be unloaded. On a few occasions, Stevenson stored the cocaine at Young’s home;

Stevenson would later call Young and tell her to bring it

to his mother’s house. Once the cocaine was unloaded

in the kitchen, Stevenson would either break the cocaine

into smaller packages and resell it or cook it into crack

and then sell the crack. Stevenson sold the cocaine and
6 No. 09-3209

crack to several regular customers, including, as noted

above, Bohanna, Miller and Kent, oftentimes fronting

the drugs to these individuals. The couriers and trailcar drivers often witnessed both the crack cooking and

the cocaine and crack sales.

The DEA discovered Stevenson’s drug operation

through its investigation of Bohanna’s East St. Louis,

Illinois crack dealing. After conducting several controlled

purchases of crack from Bohanna, the DEA arrested

Bohanna in late August 2007. Following his arrest,

Bohanna agreed to cooperate with the DEA and fingered

Stevenson as his source. Bohanna also agreed to call

Stevenson and arrange to purchase additional cocaine,

which he did.

Unbeknownst to Stevenson, DEA agents were

watching him the evening he was scheduled to meet

Bohanna. After observing Stevenson enter Young’s residence, officers directed Bohanna to call Stevenson and

tell Stevenson that he was in the St. Louis area and

ready to meet. In response to Bohanna’s call, Stevenson

told Bohanna to meet him in the area of Riverview and

Broadway. Stevenson and Young then left Young’s residence, with Stevenson carrying a small white bag. The

duo originally headed toward the Riverview/Broadway

area, but they never finished the trip; instead they

turned around and headed back to Young’s home. DEA

agents then attempted to arrest Stevenson, but he drove

off, leading agents on a high-speed chase. Stevenson

evaded police and disappeared for several months.

During Stevenson’s months in hiding, he changed the
No. 09-3209 7

voicemail message on his cell phone directing callers to

DTA (which in text-talk means “Don’t Trust Anyone”) and

telling them to dump their telephones. Stevenson also

left a message for one of the DEA agents, taunting him,

as the agent explained at trial, by saying: “[t]hat it was

my job to catch him and it was his job to run, bitch.”

While Stevenson was on the run, the government gathered evidence. They immediately obtained a search

warrant for Young’s home and inside recovered a bowl

of powder cocaine inside the refrigerator, three bags of

crack cocaine underneath the kitchen sink, three scales

in the kitchen, and two kilo wrappers in the kitchen

trash. Agents also recovered a total of thirteen grams of

crack cocaine and 231 grams of powder cocaine. Agents

also interviewed friends and associates of Stevenson

and obtained statements from several who agreed to

cooperate with the government. Stevenson was eventually arrested in early 2008. 

Based on the above evidence, a jury convicted Stevenson of conspiracy to distribute and possess with

intent to distribute cocaine and crack cocaine. Stevenson

appeals.

II.

On appeal, Stevenson presents two arguments. First,

he argues that the district court erred in admitting evidence related to his distribution and use of marijuana.

Second, Stevenson contends that the evidence does not

support a verdict for the conspiracy charge—but rather
8 No. 09-3209

Stevenson does not challenge venue, which as noted above 2

served as the basis for the government’s confession of error in

Moore’s, Wilkins’, Talton’s and Hogan’s cases. Stevenson’s

trial, which was the first of four, differed significantly from

those for the co-conspirators. In Stevenson’s trial the government called Bohanna as a witness and he provided the necessary link to the Southern District of Illinois, testifying that

Stevenson fronted him crack cocaine (thus making him a

member of the conspiracy, see United States v. Stott, 245 F.3d 890,

903 (7th Cir. 2001), amended on rehearing in part, 15 Fed.Appx.

355), which Bohanna then sold in East St. Louis, Illinois (thus

making venue proper in the Southern District of Illinois. See

United States v. Ochoa, 229 F.3d 631, 636-37 (7th Cir. 2000)).

Bohanna was not called to testify in Moore’s, Wilkins’, Talton’s

or Hogan’s cases, although it is unclear why not. During the

opening statement at Stevenson’s trial, the prosecutor stated

that “Diallo Bohanna is going to tell you in 2006, 2007 he

would purchase multiple ounces of cocaine from the

Defendant practically weekly. What Diallo Bohanna would

do is he would come in this District, this side of the river in

Illinois, typically from East St. Louis, drive to St. Louis, and pick

up his cocaine from the Defendant, bring it back to this

District, turn it into crack, and sell it to his customers for

profit. The reason that’s important is that’s why this case has

been indicted in this District, even though most of it takes

place in St. Louis. Diallo Bohanna is the link. He’s the reason

this case has been indicted here in this courtroom today.”

Bohanna’s testimony established proper venue for Stevenson’s

trial. The record does not show why he did not testify at the

trials of the other accused co-conspirators.

the proof at trial constitutes a variance from the indictment.2
No. 09-3209 9

A. Marijuana Evidence

Throughout Stevenson’s three-day trial, the government elicited testimony from several witnesses that

Stevenson had distributed and used marijuana. Stevenson

argues on appeal that this testimony was “bad acts”

evidence and was inadmissible under Rule 404(b).

Rule 404(b) provides that evidence of a defendant’s

prior bad acts is inadmissible character evidence, but

may be admitted to prove the defendant’s “motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident, . . . .” Fed.

R. Evid. 404(b). In its brief on appeal, the government does not assert a valid purpose for the marijuana

evidence, but instead argues that Stevenson did not

preserve the issue because his only objection to the marijuana evidence was based on relevancy and not

Rule 404(b), and therefore our review is solely for plain

error. Stevenson counters that his objection was sufficient to put the government and the court on

notice that he was complaining about the admission of

“bad acts” evidence. Alternatively, Stevenson claims

that this court should nonetheless review his Rule 404(b)

challenge for an abuse of discretion because the prosecution violated Rule 404(b) by not providing his attorney with the requisite notice of its intent to introduce

such evidence. See Fed. R. Evid. 404(b) (“[U]pon request

by the accused, the prosecution in a criminal case shall

provide reasonable notice in advance of trial, or during

trial if the court excuses pretrial notice of good cause

shown, of the general nature of any such evidence it

intends to introduce at trial.”).
10 No. 09-3209

On appeal, Stevenson also argues that the marijuana evi- 3

dence “was far more prejudicial than probative under

Fed.R.Evid. 403,” Appellant Brief at 33, but Stevenson did not

present that argument to the district court and even had he,

as noted, any error was harmless.

Whether Stevenson preserved the issue and whether

the government’s violation of Fed. R. Evid. 404(b)’s notice

requirement should excuse an insufficient objection to

the marijuana evidence, however, is irrelevant because

any error was harmless. See Fed. R. Crim. P. 52(a); United 3

States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007) (“Errors

do not merit reversal when the government proves that

they are harmless, that is, that they did not affect the

outcome of the trial.”). The evidence against Stevenson

was overwhelming. Stevenson’s supplier, Friends,

testified at trial that he supplied Stevenson with huge

quantities of cocaine over the years. Several couriers

and trail-car drivers also testified, not just about their

roles, but also about events they witnessed—Stevenson

secreting the money and drugs in the speaker boxes;

his cooking of the cocaine into crack; and his weighing,

packaging, and selling large quantities of crack and

cocaine out of his mother’s house. Additionally, three of

Stevenson’s regular purchasers, to whom Stevenson

fronted the drugs, also testified. Testimony from government agents concerning Stevenson’s behavior also

bolsters the testimony of the co-conspirators. Specifically,

Stevenson led officers on a high-speed chase the evening

of the attempted sting operation. After eluding officers,

he then taunted them, leaving messages evidencing an
No. 09-3209 11

awareness of guilt, i.e., it’s my job to run and your job

to catch me. Stevenson also changed his voicemail

message to inform his friends and family members that

there was a “snitch” and that they should dump their

cell phones and trust no one. For his part, Stevenson

called no witnesses and presented no evidence.

Moreover, the references to marijuana, for the most

part, were merely repetitive of the references to the

charged crack and cocaine—e.g., Stevenson “would come

from St. Louis and buy kilograms of cocaine and pounds

of marijuana from me.” In fact, Stevenson argues on

appeal that there was no reason for the additional marijuana evidence to be admitted because it was “entirely

cumulative” and that “of the 32 pages of trial testimony

where marijuana evidence appears, 27 include the same

or substantially similar testimony with respect to

cocaine or crack.” Appellant Brief at 30. But rather

than bolster Stevenson’s argument, this redundancy

highlights why any error was harmless. It is also wrong

to think that a jury would hear the same witnesses

testify about marijuana and cocaine and crack and conclude that those witnesses must be truthful regarding

the cocaine and crack because they also said that

Stevenson had distributed or used marijuana. See United

States v. Persico, 425 F.2d 1375, 1384 (2d Cir. 1970) (“As the

trial judge noted, [the witness’] testimony as to other

crimes and criminal propensity was so closely bound up

with his directly relevant testimony with regard to the

[charged] hijacking that unless the jury believed the

relevant testimony it is quite unlikely that it would

have been influenced by the accompanying testimony
12 No. 09-3209

of other crimes.”). For all of these reasons, we conclude

that any error related to the admission of testimony

concerning marijuana was harmless.

B. Variance

Stevenson next challenges his conspiracy conviction,

styling his challenge as a fatal variance between the government’s indictment and its proof at trial. A conspiracy

variance claim is treated as a sufficiency of the evidence

claim, United States v. Womack, 496 F.3d 791, 794 (7th Cir.

2007), which normally means that this court reviews

the evidence in the light most favorable to the government. But in this case, because Stevenson did not raise

the issue in the district court, our review is for plain

error. Id. Under this exacting standard, reversal is warranted “only if the record is devoid of evidence pointing

to guilt, or if the evidence on a key element was so

tenuous that a conviction would be shocking. United

States v. Irby, 558 F.3d 651, 653 (7th Cir. 2009) (internal

quotations omitted).

In arguing that the evidence was insufficient to support the charged conspiracy, Stevenson claims “[i]n

short, the government failed to prove that Mr. Stevenson

conspired with numerous of the other purported coconspirators charged in the indictment.” Appellant’s

Brief at 42. Stevenson’s argument fails as a legal matter.

Legally, “[t]o convict a defendant of conspiracy, the

government must prove that (1) two or more people

agreed to commit an unlawful act, and (2) the defendant

knowingly and intentionally joined the agreement.” United
No. 09-3209 13

States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). But “the

government doesn’t have to prove with whom a defendant

conspired; it need only prove that the defendant joined

the agreement alleged, not the group.” United States v.

Townsend, 924 F.2d 1385, 1389-90 (7th Cir. 1991). Thus, “to

overturn a conspiracy conviction on the ground of variance, an appellant must show both that he did not

conspire with each defendant and that he was prejudiced by being tried with defendants who were not his

coconspirators.” Id. at 1390. In this case, Stevenson

merely claims that the government did not show that

he conspired with five of the fourteen individuals

named in the indictment. Legally, though, the government was not required to prove their participation, id.,

and therefore Stevenson’s argument is without merit.

In his reply brief, Stevenson claims a variance based

on a different ground: he no longer claims that the

problem with the evidence is that the government did

not establish the participation of all the alleged co-conspirators. Rather, Stevenson argues in his reply brief

that “the government offered insufficient evidence at

trial that Mr. Stevenson engaged in a conspiracy to

possess and distribute both crack and cocaine as

charged in the indictment.” Appellant’s Reply Brief at 19.

Stevenson then claims that “[t]he testimony of Messrs.

Miller and Kent showed, at most, individual buy-sell

transactions with Mr. Stevenson involving crack.” Appellant’s Reply Brief at 21. Arguments not presented

until a reply brief are waived. See United States v.

Boisture, 563 F.3d 295, 299 n.3 (7th Cir. 2009). But even

if Stevenson had not waived this argument, it would fail.
14 No. 09-3209

As noted above, the government presented evidence that

Stevenson fronted crack to Miller and Kent and this

alone would be sufficient to make the duo part of the

conspiracy and support the verdict that Stevenson conspired to distribute crack. See Stott, 245 F.3d at 903.

But in addition to this evidence, several of the other coconspirators testified that after Stevenson purchased

cocaine from Friends, they helped him transport it back

to his mother’s house, where they observed him cook

the cocaine into crack and then sell both cocaine and

crack to various purchasers. This evidence was sufficient

to establish Stevenson’s conspiracy to deal in both

crack and cocaine. Accordingly, the additional theory

presented in Stevenson’s reply brief fares no better than

his initial argument. And the jury’s verdict stands.

III.

The evidence of Stevenson’s guilt was overwhelming.

Numerous members of the conspiracy, serving in all

roles—supplier, courier, trail-car driver, and purchaser—testified at length about the scope and operations of the conspiracy. Given this overwhelming evidence, any error in admitting evidence related to

marijuana was harmless. Moreover, the overwhelming

evidence established the conspiracy charged in the indictment—conspiracy to distribute and possess with

intent to distribute cocaine and crack cocaine. There

was no variance. We AFFIRM.

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