In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2079

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEE F. KIBLER, also known as SHORTY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 98 CR 40005--J. Phil Gilbert, Judge.

ARGUED APRIL 19, 2001--DECIDED FEBRUARY 1, 2002 

 Before FLAUM, Chief Judge, HARLINGTON

WOOD, JR., and ROVNER, Circuit Judges.

 ROVNER, Circuit Judge. Lee F. Kibler was

indicted by a grand jury on one count of

conspiracy to distribute and possess

cocaine base with intent to distribute,

in violation of 21 U.S.C. sec.sec.

841(a)(1) and 846, and on two counts of

possession of cocaine base with intent to

distribute, in violation of 21 U.S.C.

sec. 841(a)(1). A jury found him guilty

on all three counts, and the court

sentenced him to life imprisonment on the

conspiracy count, and to 360 months on

each of the remaining counts to be served

concurrently.

 The trial testimony demonstrated that

Kibler operated an automobile detailing

shop in Mount Vernon. In a bedroom above

the shop, Kibler weighed and packaged

crack cocaine, and he also used the

bedroom to trade crack cocaine for sex

with a number of female customers. In

addition, he traded crack cocaine for

food stamps, sold it for cash, and

fronted it to others who would sell it

and then return cash to him. The

testimony included recordings from two

"controlled buys," in which Zelman

Johnson, a confidential source working

for law enforcement, arranged and

completed purchases of crack from Kibler.

In addition, a number of other witnesses
testified as to their transactions with

Kibler.

 Kibler alleges that his due process

right to a fair trial was violated by the

introduction of evidence regarding prior

convictions, uncharged offenses, and

irrelevant immoral behavior. We take each

allegation in turn.

 Kibler concedes that he made no

objection at trial to evidence regarding

his prior convictions, and that his

defense counsel in fact made no effort to

limit the facts of his prior convictions

from reaching the jury. Accordingly, our

review is limited to plain error. Error

under that standard is reversible only if

it is "plain," meaning clear under

current law, and if it affects

substantial rights, in that it must be

prejudicial and must have affected the

outcome of the district court

proceedings. United States v. Olano, 507

U.S. 725, 734 (1993); United States v.

Williams, ___ F.3d ___, 2001 WL 1443900,

*9 (7th Cir. 2001); Fed. R. Crim. Proc.

52(b). If the defendants can make that

showing, the court of appeals has the

discretion to correct the forfeited error

under Rule 52(b), but "the court should

not exercise that discretion unless the

error "’seriously affect[s] the fairness,

integrity or public reputation of

judicial proceedings.’" Olano, 507 U.S.

at 732.

 At a number of points in the trial,

various witnesses alluded to Kibler’s

prior incarceration. Generally, it arose

in the context of establishing either a

timeline of events, or in establishing

the relationship between Kibler and the

witness. For instance, an initial

reference came during the direct

testimony by Chris Mendenall, the Chief

of Police of the Mount Vernon Police

Department. Mendenall testified that

Kibler made a statement after his arrest

in which he declared that he started

selling crack when he got out of prison

in 1996. Similarly, government witness

Manuel Vernell Berry, when asked on

direct examination if he met with Kibler

when he was in Mount Vernon, stated that

Kibler was incarcerated until around

1996, and that he saw him after that

time. Other witnesses alluded to the

incarceration in the course of explaining

a relationship with Kibler or an event
involving Kibler. For instance,

government witness Zelman Johnson

testified that he had the same parole

officer as Kibler, and that the officer’s

presence at the detail shop when Kibler

and Zelman were both there had caused

Kibler to get everyone together and

decide to shut the shop down for a while.

Finally, government witness Fred Goosby

testified that he first met Kibler when

they were both in the penitentiary in

1990. Kibler’s defense counsel objected

to the follow-up question by the prosecu

tor, in which Goosby stated that Kibler

was in the penitentiary "for drugs," and

the court sustained that objection.

 We need not discuss whether it was error

to allow the witnesses to reveal Kibler’s

prior incarceration in those contexts,

because even assuming it was error, it

cannot rise to the level of plain error.

The defense in this case was not premised

on denying Kibler’s involvement with

crack cocaine. Kibler presented no

witnesses in rebuttal of the government’s

case. Instead, the theory of the defense

was that Kibler could not be guilty of

conspiracy, because the government could

not prove the agreement with two or more

persons that was essential to the

conspiracy charge. The defense counsel

made clear that the trial strategy was to

rebut the existence of an agreement in

both his opening and closing statements

to the jury, and in his insistence on the

buyer-seller instruction. That

instruction, based on United States v.

Thomas, 150 F.3d 743 (7th Cir. 1998), ad

monished the jury that the existence of a

simple buyer-seller relationship between

Kibler and another person, without more,

was insufficient to establish a

conspiracy, even where the buyer intended

to resell the crack cocaine.

 The evidence of the prior convictions,

however, had virtually no impact on that

defense. The evidence that Kibler was a

seller of crack was overwhelming, and the

defense strategy was a concession to that

reality. Therefore, we are not faced with

a situation in which a defendant denies

all illegal activities, and the prior

convictions render that denial less

believable. There was no evidence

introduced indicating that those prior

convictions were for a drug conspiracy,

as opposed to individual actions as a

seller. Therefore, the prior convictions
were consistent with the defense strategy

of portraying Kibler as a drug dealer who

operates independently, rather than as

part of a conspiracy. Moreover, a

limiting instruction was given

admonishing the jury that it could not

consider his prior incarceration as

evidence of guilt of the crimes for which

Kibler was charged. We assume that jurors

follow the court’s instructions, unless

there is substantial evidence to the

contrary. United States v. Williams, 216

F.3d 611, 615 (7th Cir. 2000); United

States v. Hernandez, 84 F.3d 931, 935

(7th Cir. 1996). There is no reason here

to believe that the jury did not heed

that instruction. Kibler failed to

identify any manner in which the prior

conviction evidence prejudiced his

defense of no conspiracy, nor has he

demonstrated that the prior convictions

affected the outcome of the proceedings

in this case.

 Kibler next challenges the introduction

of evidence relating to uncharged

criminal conduct, specifically testimony

that Kibler had "put out a hit" on

another person, which was elicited by the

government on direct examination of

Manuel Vernell Berry as follows:

Q. Do you recall something that happened

to you that led you to believe that

someone was out to kill you?

MR. STOBBS [defense counsel]: Judge, I’m

going to object to this being irrelevant.

THE COURT: Overruled.

A. Uh, the FBI agent stopped my--

MR. STOBBS: Objection. Hearsay.

Q. Well, I don’t want you to tell me what-

-

THE COURT: Sustain that.

Q. I don’t want you to tell us what the

FBI agent told you. But you were advised

of some information?

MR. STOBBS: Well, if he is advised of

some information, that’s hearsay.

MR. MOORE: We’re not going to get into

the information, Judge; just what he did

afterwards.
THE COURT: All right.

Q. You were advised of some information,

without getting into the information; is

that correct?

A. Yes, sir.

Q. Once you were advised of that

information, what did you do?

A. I went to Mr. Kibler..

. . . Q. And what did you say to Mr.

Kibler?

A. I told him I had been told, you know,

that he is supposed to have a hit put out

on me.

Q. When you told Kibler that you’d been

advised that there was a hit out on you

by Kibler, what did Kibler say to you?

A. He just laughed about it, and he didn’t

say one way or the other.

Transcript 4 at pp. 94-95. Berry then

went on to testify that he was not doing

business with Kibler at that time, but

that after he confronted Kibler about the

alleged hit, they began doing business

together again.

 The government argues that the

introduction of the evidence was not

error because Berry "merely used the con

versation as a reference marking the end

of an eight month hiatus in his drug

relationship with the defendant." It also

argues that we should review only for

plain error, because Kibler failed to

properly object.

 Although Kibler objected to the initial

question concerning the hit, he did so

only on grounds of relevance. He did not

renew that objection to the later

questions, in which Berry was asked about

his conversations with Kibler, and he

never argued that the evidence was unduly

prejudicial, and should be excluded on

that ground. It is that argument, based

on Rule of Evidence 404(b), that he makes

on appeal, and we review that for plain

error.

 Once again, assuming error, Kibler

cannot demonstrate that admission of that
evidence was prejudicial and must have

affected the outcome of the district

court proceedings. Kibler’s own counsel

had in fact elicited testimony earlier in

the trial which indicated that Kibler

might be capable of being involved in

murder, when cross-examining Zelman

Johnson as follows:

Q. Did you know that Lee Floyd [Kibler]

was some sort of a target before you went

to talk to Chris Mendenall?

A. No. See, they never asked--the reason

Lee Floyd, the reason I got hooked up

with Lee Floyd was because he was telling

me about a murder that he wanted to do.

I went to my parole officer and told my

parole officer about it, and my parole

officer called Mt. Vernon Police

Department and federal and told them I

was scared, blah, blah, blah, and I came

to them because I was on parole, and

that’s how I got to know--that’s how we

bought the dope from Lee Floyd.

Transcript 3 at p . 197. In light of that

testimony, the testimony later elicited

by the government may actually have been

helpful, because it made the allegation

of Kibler ordering a "hit" appear to be

laughable. In contrast to Zelman, Berry

did not appear to be frightened by the

alleged threat given that he went to

speak to Kibler about it. Kibler’s

reaction in laughing off the allegation,

and the resumption of drug transactions

between Berry and Kibler, cast doubt upon

the credibility of the "hit" allegation.

Therefore, any prejudice from that

testimony was minimal, and in fact it may

have served to lessen the impact of more

damaging, similar allegations elicited in

response to defense questioning.

Accordingly, Kibler has failed to satisfy

the plain error standard. Olano, 507 U.S.

at 734; Williams, 2001 WL 1443900 at *9.

In fact, even if we were to interpret the

initial objection as sufficient to avoid

forfeiture, Kibler has failed to meet the

lesser standard as well. Even where a

defendant properly preserves an

objection, "[i]f a reviewing court is

certain that an evidentiary error did not

have ’a substantial and injurious effect

or influence on the jury’s verdict,’ the

error is harmless and the jury verdict

stands." United States v. Sargent, 98

F.3d 325, 330 (7th Cir. 1996), quoting

United States v. Hanson, 994 F.2d 403,
407 (7th Cir. 1993) (internal citations

omitted). For the reasons stated above,

any error in admitting the "hit" evidence

is harmless under that standard as well.

 Kibler also raises a cursory challenge

to the admission of "evidence regarding

the second floor bedroom, where both

black and white girls would come and

exchange food stamps and sex with

Defendant-Appellant for ’crack.’" Def.

Brief at 23. Kibler asserts that the

evidence was prejudicial because it

concerned immoral conduct intertwined

with potential racial issues, and that it

had no probative value. The evidence was

probative because it concerned the drug

transactions that formed the basis for

the indictment. The government is not

prevented from eliciting testimony

regarding relevant drug transactions,

solely because payment for those drugs

are made in the form of food stamps or

sex rather than cash, and the race of the

women involved was raised only

incidentally when witnesses were

identifying the persons involved.

Moreover, Kibler has made no effort to

argue how admission of that evidence

could have had an impact on the outcome

of the trial, and it is apparent from the

record that it could have no impact

whatsoever. Accordingly, the alleged

evidentiary errors in this case do not

provide a basis for reversal.

 The only other argument raised by Kibler

is that his due process rights were

violated when he was sentenced based on a

quantity of drugs that was neither pled

in the indictment nor subjected to proof

beyond a reasonable doubt. He argues

based upon Apprendi v. New Jersey, 530

U.S. 466 (2000), that the drug amounts

constituted an element of the offense

that had to be proven to the jury beyond

a reasonable doubt. The rule in Apprendi

applies only to drug quantities that

permit a sentence in excess of the

default statutory maximum. United States

v. Nance, 236 F.3d 820, 825 (7th Cir.

2000). In this case, Kibler possessed

prior drug convictions as was set forth

in the enhancement information filed

pursuant to 21 U.S.C. sec. 851, which

affected his default statutory maximum.

Accordingly, his sentence under counts 2

and 3 fell within that default maximum,

and no Apprendi issue arises.
 Regarding the conspiracy count, however,

the government concedes that he was

sentenced in excess of the default

statutory maximum. His sentence of life

imprisonment was based upon 21 U.S.C.

sec. 841(b)(1)(B), which authorizes that

sentence in cases involving prior

convictions and a conspiracy to

distribute 5 grams or more of cocaine

base. Accordingly, the government

acknowledges that the indictment should

have charged a conspiracy to distribute 5

or more grams of cocaine base, and that

the issue of whether that quantity was

met should have been submitted to the

jury. As to count one, the government

concedes that there was plain error that

affected the defendant’s substantial

rights. That, however, does not end the

inquiry.

 Under the plain error standard, such

error is not reversible unless it

seriously affected the "fairness,

integrity, or public reputation of the

judicial proceedings." Nance, 236 F.3d at

825-26. We have held that the failure to

allege the drug quantity in the

indictment is not reversible error where

it is clear beyond a reasonable doubt

that a properly worded indictment and a

properly instructed jury instruction

would have produced a guilty finding Id.

Where the evidence of the drug quantity

is overwhelming, the error does not

affect the fairness, integrity or public

reputation of the judicial proceedings,

because there is no reasonable doubt that

a jury faced with proper instructions

would have found him guilty of that

quantity and no reasonable doubt that a

grand jury presented with a properly

worded charge would have returned the

indictment.

 We are presented with such a situation

here. No reasonable jury, presented with

the evidence in this case, could have

concluded that the conspiracy for which

Kibler was convicted involved less than 5

grams of cocaine base. A brief glance at

the witness testimony makes the point.

 Steven Davis testified that he purchased

sixteenth ounce quantities of crack on a

number of occasions. He testified that

Sandra Davis, one of Kibler’s

girlfriends, sold him a sixteenth which

she identified as belonging to both her

and Kibler. At that time, he saw
approximately ten to fifteen sixteenths

in the bag she was holding, which is

approximately 17-26 grams. On another

occasion, he testified that she

inadvertently dropped two ounces (56

grams) of Kibler’s crack on the street,

returning with Kibler to search for it.

 Jennifer Scott testified that she began

purchasing crack from Kibler six months

after she was released from prison in

1996. She paid for it with cash and with

sex, eventually purchasing crack nearly

every day, and sometimes as often as

three times per day, in amounts varying

in worth from $20, $50 and $100. At one

time, she saw Kibler with approximately

150 grams of crack.

 Katina Harbor testified that she used

crack throughout the time that she was

Kibler’s girlfriend, from the fall of

1996 through January 1998. During the

last two months, she was consuming more

than 5 grams daily, and obtained at least

300 grams from him during that time. She

also assisted Kibler on occasion, and on

one occasion she counted out five hundred

$20 and $50 rocks of crack. Five hundred

$20 rocks amounts to 50-100 grams. She

also testified that she traveled with him

to Elgin three or four times, and that

they obtained a softball-sized rock of

crack on those occasions. Those rocks

would weigh approximately 140 grams each.

 The other testimony was consistent with

that portrayal. The evidence is simply

overwhelming that the conspiracy

encompassed significantly more than 5

grams of cocaine base, and no reasonable

jury could conclude otherwise.

Accordingly, there is no basis for

reversal.

 The decision of the district court is

AFFIRMED.