In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 13-2929, 13-3008 & 14-2297

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEMETTRIS CRUSE, DANIEL MCCLAIN,

and CHARLES HENDERSON,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 11-Cr-191 — Rudolph T. Randa, Judge.

____________________

ARGUED NOVEMBER 12, 2014 — DECIDED NOVEMBER 3, 2015

____________________

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Demettris Cruse, Daniel McClain,

Charles Henderson, and eight others were indicted for their 

involvement in a long-running conspiracy to distribute 

controlled substances in Milwaukee. The indictment centered on the activities of two street gangs that controlled the 

crack-cocaine trade in adjacent neighborhoods on the city’s 

northwest side. The eight coconspirators not party to this 
2 Nos. 13-2929, 13-3008 & 14-2297

appeal pleaded guilty and agreed to cooperate with the 

government. 

Henderson also negotiated a plea bargain. He agreed to 

plead guilty to the conspiracy charge but only to a subset of 

the drugs listed in the indictment (that is, crack and marijuana but not powder cocaine). In exchange the government 

would recommend the mandatory minimum sentence. 

Henderson pleaded guilty pursuant to this agreement and 

the court imposed the recommended sentence. But the 

government neglected to file an information narrowing the 

charged drug types as contemplated by the plea agreement. 

Henderson argues that this mistake undermines the validity 

of his plea. We disagree. Henderson understood the charge 

against him and the possible penalty, and the judgment

conforms precisely to the terms of the agreement. We see no 

reason to unwind the plea.

A jury found Cruse and McClain guilty. They argue that 

the trial was contaminated by a host of errors: two Batson 

violations, improperly admitted hearsay, and two faulty jury

instructions (one about the distinction between a buyerseller relationship and a conspiracy, and the other about the 

scope of coconspirator liability). McClain also claims that the 

evidence was insufficient to convict him. Only one of these

arguments merits relief, and only with respect to one defendant: the absence of a buyer-seller instruction violated 

Cruse’s right to a fair trial, so we vacate his conviction and 

remand for retrial. The judgments against Henderson and 

McClain are affirmed.
Nos. 13-2929, 13-3008 & 14-2297 3

I. Background

By the mid-1990s, two gangs controlled the drug trade in 

and near the Westlawn housing project on Milwaukee’s 

northwest side. The Westlawn gang operated in the housing 

project itself, and Six Trey controlled the territory in the 

nearby neighborhood around the intersection of 63rd Street

and West Bobolink Avenue. The two gangs operated just a 

few blocks apart and were generally—though not always—

on friendly terms.

Both gangs operated similarly. Six Trey’s membership 

consisted primarily of people who had grown up together 

near 63rd and Bobolink. The gang had no formal structure, 

but it held meetings during which its members would 

discuss who would sell drugs and also mete out punishment 

(usually in the form of beatings) to those who broke the 

gang’s norms against cheating and stealing. Six Trey also 

maintained tight control over its territory; if an outsider 

encroached and tried to sell drugs, Six Trey members would 

page each other using a distress code, and when reinforcements arrived, they’d beat and rob the intruder. The benefits 

of membership included money, protection from rival gangs, 

and the ability to sell drugs in Six Trey’s territory.

Most of Westlawn’s members had also known each other 

since childhood (“we was all like brothers,” according to one 

Westlawn member). The gang had no formal leadership 

hierarchy, but different members had different roles, such as 

supplying drugs, delivering drugs, providing security, and 

organizing gambling. Outsiders were robbed and beaten if 

they tried to sell drugs in Westlawn’s territory. The benefits 

of membership included protection, access to drugs, tips 

about police activity, and the assurance that members 
4 Nos. 13-2929, 13-3008 & 14-2297

wouldn’t snitch on one another (though it was acceptable to 

cooperate with the police on non-gang-related matters). The 

gang also gave its members things like shoes and TVs, and

supplied money to incarcerated members.

The Drug Enforcement Administration (“DEA”) began 

investigating Westlawn and Six Trey in 2004. In 2009,

18 gang members were indicted on drug-conspiracy charges. 

Two years later on September 7, 2011, a federal grand jury 

returned a second indictment against 11 additional gang 

members, including Cruse, McClain, and Henderson. This

indictment alleged a single count of conspiracy to possess 

with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846. The 

indictment also alleged that the offense involved at least 

5 kilograms of powder cocaine, 280 grams of crack cocaine, 

and an unspecified amount of marijuana. The charged 

quantities of powder and crack cocaine were each independently sufficient to trigger a ten-year mandatory minimum sentence. See id. § 841(b)(1)(A)(ii)–(iii). 

The eight coconspirators not party to this appeal pleaded 

guilty and agreed to cooperate with the government. Henderson, a relatively low-level crack dealer affiliated with 

Westlawn, also pleaded guilty. On appeal he challenges the 

validity of his plea; we’ll provide the relevant background 

for his argument later in this opinion. 

The case against Cruse and McClain proceeded to jury 

trial. The government’s case rested primarily on the testimony of seven cooperating gang members: Shywan Mathis, 

Willie Mohomes, Michael Riley, Aaron Seymore, and Corey 

Winters, all of whom self-identified as members of 

Westlawn; Kendall Burton, a member of Six Trey who also 
Nos. 13-2929, 13-3008 & 14-2297 5

sold drugs in Westlawn; and Kenyounta Harvester, who

didn’t consider himself a member of either gang but sold 

large quantities of drugs to their members. All of these 

witnesses except Mathis and Harvester were charged in the 

2009 indictment and pleaded guilty. Mathis was charged in 

the 2011 indictment (along with Cruse and McClain) and

pleaded guilty. Harvester pleaded guilty to a separate conspiracy charge. 

The witnesses described Cruse as a mid-level dealer who 

worked in Westlawn and McClain as a member of Six Trey 

and a high-level supplier of drugs in both the Six Trey and 

Westlawn territories. The jury found both guilty and in a 

special verdict found that the conspiracy involved at least

5 kilograms of powder cocaine or 280 grams of crack. Cruse 

was sentenced to 240 months, the mandatory minimum.

McClain was sentenced to 252 months.

II. Discussion

Henderson asks us to vacate his conviction and remand 

to permit him to withdraw his guilty plea. McClain and 

Cruse raise several common claims of trial error and a few

individual arguments as well. We’ll begin with Henderson’s 

appeal and then move to the arguments raised by McClain

and Cruse.

A. Henderson’s Appeal

For about ten years prior to his arrest, Henderson sold

drugs in Westlawn, mostly “dime bags” ($10 packets) of 

crack cocaine. In a written plea agreement, Henderson 

agreed to plead guilty to the conspiracy charge, but only 

with respect to two of the three drug types alleged in the 

indictment. He would admit to conspiring to distribute at 
6 Nos. 13-2929, 13-3008 & 14-2297

least 280 grams of crack and an indeterminate amount of 

marijuana, but not powder cocaine.

To implement this agreement, the government agreed to 

file an information identical to the September 2011 indictment except that it would eliminate the reference to 5 kilograms of powder cocaine. In exchange for Henderson’s

guilty plea, the government agreed to recommend the tenyear minimum sentence required by § 841(b)(1)(A) and 

oppose any guidelines sentence enhancements, most notably

a two-level increase for Henderson’s possession of a firearm. 

See U.S.S.G. § 2D1.1(b)(1) (2011). 

Henderson pleaded guilty pursuant to this agreement, 

and at sentencing the judge accepted the government’s 

recommendation and imposed the minimum sentence of ten 

years. The judge also granted the government’s motion to 

dismiss the September 2011 indictment. Before the court 

entered judgment, however, the parties discovered that the 

prosecutor had neglected to file an information narrowing 

the charged drug types as contemplated by the plea agreement. Henderson moved to withdraw his guilty plea. Alternatively, he sought specific performance of the plea agreement.

The judge declined to allow plea withdrawal, noting that 

a guilty plea generally may not be withdrawn after sentence 

is imposed. See FED. R. CRIM. P. 11(e) (“After the court imposes sentence, the defendant may not withdraw a plea of guilty 

or nolo contendere, and the plea may be set aside only on 

direct appeal or collateral attack.”). Although the court had 

not yet entered judgment, “[o]ral pronouncement of the 

sentence triggers the bar” under Rule 11(e), United States v. 
Nos. 13-2929, 13-3008 & 14-2297 7

Vinyard, 539 F.3d 589, 595 (7th Cir. 2008), so the judge concluded that he could not set aside the plea. 

Instead, to remedy the obvious mistake, the judge vacated the dismissal of the original indictment and ordered the 

clerk to enter judgment adjudicating Henderson guilty of 

conspiracy as charged in count one, but only with respect to 

280 grams of crack and an unspecified amount of marijuana, 

not the 5 kilos of powder cocaine listed in the indictment. 

The resulting judgment thus conforms precisely to the terms 

of the plea agreement and to Henderson’s guilty plea.

The judge acknowledged that this remedy created a variance between the indictment and the judgment. A variance 

occurs when the proven elements of an offense are “narrower than the full scope of the charge in the sense that the 

charge states all and more than what is necessary to identify 

the offense and sufficient evidence is not introduced to 

support each of the excess allegations.” United States v. 

Willoughby, 27 F.3d 263, 265 (7th Cir. 1994). Because “a 

prosecutor may elect to proceed on a subset of the allegations in the indictment, proving a conspiracy smaller than 

the one alleged,” variances are not inherently problematic.

United States v. Bustamante, 493 F.3d 879, 885 (7th Cir. 2007) 

(quotation marks omitted). Rather, a variance only calls a 

guilty plea or verdict into question if it prejudiced the defendant, such as by depriving him of fair notice of the charges against him or by creating the risk of double jeopardy. See 

id; United States v. Neighbors, 590 F.3d 485, 498 (7th Cir. 2009) 

(“[A] conspiracy to distribute crack cocaine is a subset of a 

conspiracy to distribute both crack cocaine and powder 

cocaine. Therefore, because the defendants had adequate 

notice of the government’s allegations and suffered no 
8 Nos. 13-2929, 13-3008 & 14-2297

prejudice from this variance, we find that the jury’s verdict 

should stand.”). 

Henderson does not argue that the variance caused him 

any prejudice.1 After all, the judgment matched the plea 

agreement and was fully supported by the facts he admitted

in the agreement and at his change-of-plea hearing. The 

upshot is that he got exactly what he’d bargained for—a tenyear sentence for the crime of conspiring to distribute controlled substances; namely, at least 280 grams of crack and an 

unspecified amount of marijuana.

Nonetheless, Henderson argues that the mix-up violated 

his right to due process. One basic requirement of due 

process is that “a plea of guilty must be intelligent and 

voluntary,” Brady v. United States, 397 U.S. 742, 747 n.4 (1970), 

and a plea cannot be voluntary “unless the defendant received real notice of the true nature of the charge against 

him,” Henderson v. Morgan, 426 U.S. 637, 645 (1976) (internal 

quotation marks omitted). Although departures from the 

plea procedures prescribed in Rule 11 are ordinarily reviewed for harmless error, see FED. R. CRIM. P. 11(h), a 

“[m]isunderstanding of the nature of the charge ... is not 

harmless error,” United States v. Bradley, 381 F.3d 641, 647 

(7th Cir. 2004).

 

1 At oral argument Henderson’s attorney suggested that if a future 

Congress reduced sentences across the board for prisoners convicted of 

selling crack cocaine but denied the reduction to those convicted of 

selling powder cocaine, Henderson might be deemed ineligible. But how 

could that be? It’s the judgment against Henderson that carries legal 

force, and the judgment only refers to crack cocaine and marijuana. 

Henderson was not convicted of any crime involving powder cocaine.
Nos. 13-2929, 13-3008 & 14-2297 9

As we’ve noted, under Rule 11(e) the judge’s hands were 

tied; he could not entertain Henderson’s motion for plea 

withdrawal on the merits. So we resolve the voluntariness 

question by reference to the totality of the circumstances, as 

in the typical case of a defendant who seeks to withdraw his 

plea before sentence is imposed.2 See United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (assessing the voluntariness of the defendant’s plea under the totality of the circumstances in a case in which review by the district court was 

barred by Rule 11(e)); cf. Bousley v. United States, 523 U.S. 614, 

622 (7th Cir. 1998) (noting in the context of habeas review 

that a challenge about the petitioner’s intelligent acceptance 

of a plea “can be fully and completely addressed on direct 

review based on the record created at the plea colloquy”).

The voluntariness of a guilty plea turns on such factors as

the complexity of the charge, the evidence proffered by the 

government, the adequacy of the plea colloquy, and the 

defendant’s own statements. Bradley, 381 F.3d at 644–45. As a 

general matter, Henderson mentions the complexity of 

conspiracy law, but he does not seriously argue that he

misunderstood the nature of the conspiracy charge against 

him or that his plea colloquy was inadequate. His real 

argument, it seems, is that his due-process rights were 

violated by virtue of the mutual mistake about the infor-

 

2 The government suggests that we should review the district court’s 

denial of Henderson’s motion for abuse of discretion. But that approach 

would not only deny Henderson any review whatsoever of the voluntariness of his plea (since the district court was barred from reviewing it 

under Rule 11(e)) but also would contradict the text of Rule 11(e) itself, 

which expressly envisions that a guilty plea “may be set aside ... on 

direct appeal.” FED. R. CRIM. P. 11(e).
10 Nos. 13-2929, 13-3008 & 14-2297

mation, even absent any prejudice. For support he relies 

primarily on United States v. Bradley. In that case the defendant was indicted on two counts, one for possession of crack 

with the intent to distribute and one for carrying a gun in 

relation to that drug-trafficking crime. Id. at 643. Pursuant to 

a plea agreement, he pleaded guilty to possessing (without

intent to distribute) marijuana (not crack) and to carrying a 

firearm in relation to the crime of marijuana possession. Id.

These departures were not mere inconsequential variances;

they created a host of legal problems that went unnoticed by 

the defendant, the government, and the court. Id. at 646–47. 

Most importantly, since possession of crack with intent to 

deliver was listed in the indictment as the drug-trafficking 

predicate for the firearm-possession count, the defendant’s

intent to distribute crack was an essential element of the gun 

charge. Id. at 646. The government confessed error. Id. at 644. 

We concluded that the mutual mistake and the manifold

confusion it had created meant that the defendant was 

entitled to withdraw his plea. Id. at 648.

Here, in contrast, there is no question that Henderson

understood the nature of the conspiracy charge to which he 

was pleading guilty and how the facts he admitted related to

that charge. See McCarthy v. United States, 394 U.S. 459, 466

(1969) (“[B]ecause a guilty plea is an admission of all the 

elements of a formal criminal charge, it cannot be truly 

voluntary unless the defendant possesses an understanding 

of the law in relation to the facts.”). Likewise, there cannot 

have been any confusion about the minimum and maximum 

sentences. As we’ve noted, a person convicted of conspiring 

to distribute 280 grams of crack faces the same ten-year 

mandatory minimum as a person convicted of conspiring to 

distribute both 280 grams of crack cocaine and 5 kilograms of 
Nos. 13-2929, 13-3008 & 14-2297 11

powder cocaine.3 See § 841(b)(1)(A)(vii) (using the conjunction “or” in the list of drug quantities triggering the ten-year 

mandatory minimum). And each would face a maximum 

penalty of life. § 841(b)(1)(A).

Accordingly, in notable contrast to Bradley, here there was 

no misunderstanding about the substantive elements of the 

offense, the agreed factual basis for those elements, or the 

applicable penalties. Instead, Henderson wants to use the 

government’s inattentiveness as a basis to unwind his plea, 

even though he harbored no essential misunderstanding 

about the law or the facts. The government’s mistake was 

unfortunate, but it did not vitiate the voluntariness of 

Henderson’s plea.

B. Batson Challenges

In one of their common arguments on appeal, Cruse and 

McClain claim that the government used its peremptory 

challenges to dismiss two black jurors based on their race in 

violation of the equal-protection rule announced in Batson v. 

Kentucky, 476 U.S. 79, 85–86 (1986). To prevail on this claim, 

the defendants must show that the government used its 

peremptory strikes with discriminatory intent; disparate 

impact does not violate the Equal Protection Clause. See 

Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality 

opinion).

 

3 The overall quantity and type of drugs would be relevant to the 

Sentencing Guidelines recommendation. See U.S.S.G. § 2D1.1 cmt. n.7 

(2011). But Henderson’s presentence report only referred to crack cocaine 

and marijuana sales. If the government had reneged on its agreement 

and asked the court to attribute 5 kilograms of powder cocaine to 

Henderson in order to impose a guidelines sentence above the mandatory minimum, this would be a different case. 
12 Nos. 13-2929, 13-3008 & 14-2297

A Batson challenge proceeds in three steps.4 First, the defendant must make a prima facie case that the peremptory 

strike was racially motivated. Snyder v. Louisiana, 552 U.S. 

472, 476 (2008). Second, the government must articulate a 

race neutral explanation for the strike. Id. at 477. Finally, the 

court must determine whether the defendant has shown 

purposeful discrimination. Id. We review the district court’s 

Batson findings for clear error. Id. On this standard of review, 

we will affirm unless “we arrive at a definite and firm 

conviction that a mistake has been made.” United States v. 

McMath, 559 F.3d 657, 670 (7th Cir. 2009) (internal quotation 

marks omitted). This deference is appropriate because the 

best evidence of discriminatory intent often will be the 

credibility and demeanor of the government’s attorney, and 

determinations about credibility and demeanor lie “peculiarly within a trial judge’s province.” Snyder, 552 U.S. at 477 

(quoting Hernandez, 500 U.S. at 365).

There were four black jurors in the 33-person venire

summoned for trial. The government used peremptory 

challenges to strike two of the four, Robert Albritton and

Helen Callahan; the other two black jurors were seated on 

the jury.

The first two steps of the Batson inquiry are not contested. “[T]he burden at the prima facie stage is low, requiring 

only circumstances raising a suspicion that discrimination 

 4 Discrimination by race, ethnicity, and sex is constitutionally prohibited 

in all jury selection, including by defendants (so-called “reverse Batson”). 

See Georgia v. McCollum, 505 U.S. 42, 59 (1992). For simplicity’s sake, 

however, we will describe Batson doctrine in light of the posture of this 

case; namely, defendants alleging that the government used its peremptory strikes in a racially discriminatory manner.
Nos. 13-2929, 13-3008 & 14-2297 13

occurred, even when those circumstances are insufficient to 

indicate that it is more likely than not that the challenges 

were used to discriminate.” United States v. Stephens, 421 F.3d 

503, 512 (7th Cir. 2005); see also Johnson v. California, 545 U.S. 

162, 173 (2005). The defendants objected to the prosecutor’s 

strikes against Albritton and Callahan, noting that they were 

struck even though they were not self-evidently unfavorable 

to the government. Batson Step Two requires the government 

to advance race neutral reasons for its strikes, but these 

reasons need not be persuasive (or even plausible) as long as 

they are not racially discriminatory. United States v. Stephens, 

514 F.3d 703, 710 (7th Cir. 2008); see also Purkett v. Elem, 

514 U.S. 767–68 (1995) (per curiam).

The prosecutor said she struck Albritton primarily because he wore a Bluetooth device in his ear throughout voir 

dire, and he also “seemed fairly disinterested in the proceedings.” She offered several additional reasons as well: 

Albritton said he had once been addicted to drugs (he had 

been in recovery for nine years), his brother was an officer in 

the Milwaukee Police Department, and he was unemployed. 

The prosecutor also offered multiple race neutral justifications for striking Callahan: she was “very precise” in her 

answers during voir dire (e.g., she said she was “61-and-ahalf,” and she specified, without prompting, that she had 

previously served on a “civil” jury); she missed a question

even though it was written on a display board; and she

described herself as “self-employed” (as a massage therapist). The prosecutor regarded this last point as problematic

because the defendants were planning to claim “that they 

were self-employed at the time that they were actually 

dealing drugs.”
14 Nos. 13-2929, 13-3008 & 14-2297

This brings us to the heart of the matter—Batson Step 

Three. It’s at this stage that “the persuasiveness of the justification becomes relevant ... [and] the trial court determines 

whether the opponent of the strike has carried his burden of 

proving purposeful discrimination.” Johnson, 545 U.S. at 171. 

The court can consider the totality of the circumstances, 

measuring credibility by, “among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the 

explanations are; and by whether the proffered rationale has 

some basis in accepted trial strategy.” Miller-El v. Cockrell, 

537 U.S. 322, 339 (2003). If the court determines that the 

proffered justification for the strike was pretextual, it may 

infer discriminatory intent. Snyder, 552 U.S. at 485.

The judge found that the government’s use of a peremptory strike against Albritton was not racially invidious, and 

we find no clear error in that conclusion. In particular, the 

judge concluded that Albritton’s close relationship with a 

police officer (his brother) was a neutral, nonpretextual 

justification for the strike. The judge acknowledged that a 

relative of a police officer might be especially sympathetic to 

the government, but remarked that the relationship “could 

cut both ways.” That wasn’t error; the prosecutor might have 

plausibly believed that a juror with a close relative on a 

police force might hold police officers to an especially high 

standard or have nonrepresentative beliefs about what 

constitutes good police work.

The judge also credited the government’s reliance on the 

fact that Albritton was a recovering drug addict. This was a 

drug-conspiracy case, after all, and it’s a reasonable trial 

strategy to remove jurors with firsthand experience buying 

illegal drugs. There’s a heightened risk that they would rely 
Nos. 13-2929, 13-3008 & 14-2297 15

on personal knowledge or find it difficult to evaluate the 

case dispassionately. Albritton told the court that his history 

of drug addiction would not prevent him from fairly serving 

on the jury, but the government was not required to take his 

word for it—that’s what peremptory challenges are for. 

Regarding the prosecutor’s removal of Callahan, the 

judge said this:

The argument that this involves employment, 

it involves -- she is self-employed -- and is going to be the crux of the Government’s case, is 

less than persuasive. But I also think that it 

doesn’t rise to the level of an improper motive. 

And that is placed in the context of the fact that 

we do have minorities on the jury. ... [I] think it 

does impact back upon the motives of the Government when in fact there is a diverse panel to 

begin with.

The judge did not specifically address the prosecutor’s other 

proffered justifications for striking Callahan. 

The question for us is whether the court clearly erred in

finding that the government’s “self-employment” rationale 

was “less than convincing” but nevertheless nonpretextual. 

It’s worth amplifying a point we made earlier: “The relevant 

question during the third step of the Batson inquiry is 

whether a strike was racially motivated. It follows that 

Batson and its progeny direct trial judges to assess the honesty—not the accuracy—of a proffered race-neutral explanation.” Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Cir. 2006) 

(citations omitted). In other words, “the government’s 

proffered reason for the strike need not be particularly 
16 Nos. 13-2929, 13-3008 & 14-2297

persuasive ... so long as it is not pretextual.” United States v. 

George, 363 F.3d 666, 674 (7th Cir. 2004); see also Purkett, 

514 U.S. at 769 (noting that “the genuineness of the motive” is 

the focus of the inquiry, not the “reasonableness of the asserted nonracial motive”); United States v. Montgomery, 210 F.3d 

446, 453 (5th Cir. 2000) (“[T]he ultimate inquiry for the judge 

is not whether counsel’s reason is suspect, or weak, or irrational, but whether counsel is telling the truth in his or her 

assertion that the challenge is not race-based.”) (quotation 

marks omitted). 

It was not clear error for the judge to accept the prosecutor’s “self-employment” rationale as nonpretextual, even 

after saying it was “less than persuasive.” Despite his skepticism, the judge’s ultimate conclusion—based on firsthand 

observations of the proceedings—remains entitled to deference. He relied in part on the fact that two black jurors 

remained on the jury, which is a valid (if not dispositive) 

factor. See United States v. Grandison, 885 F.2d 143, 147 (4th 

Cir. 1989) (“While the racial composition of the actual petit 

jury is not dispositive of a Batson challenge, neither [is] the 

district court precluded from considering it.”); see also United 

States v. Simon, 422 F. App’x 489, 495 (6th Cir. 2011) (“While 

the final racial composition of a jury ... [is] not determinative 

of whether a Batson violation occurred, [it is still] relevant to 

the totality of the circumstances.”) (internal citations omitted); United States v. Williams, 610 F.3d 271, 284 (5th Cir. 2010) 

(“In light of the demographic composition of the jury and 

the differences between [a black venire member’s] voir dire 

responses and those of [two white venire members], we 

discern no clear error ... .”).
Nos. 13-2929, 13-3008 & 14-2297 17

Of course, the racial makeup of the venire and the final 

jury panel can be affected by factors outside the government’s control—challenges for cause, strikes by defense 

counsel, juror availability, to name a few. But the government’s “strike rate” is within its control, and it can sometimes be insightful. See Coombs v. Diguglielmo, 616 F.3d 255, 

262 (3d Cir. 2010) (citing Miller-El, 545 U.S. at 241). The 

relevance of the final jury composition is enhanced where

the government has peremptory strikes remaining but 

declines to use them to remove minority jurors. See United 

States v. Canoy, 38 F.3d 893, 900 (7th Cir. 1994) (“A number of 

circuits, including this one, have relied on the fact that the 

government waived available strikes and permitted members of a racial minority to be seated on a jury to support a 

finding that the government did not act with discriminatory 

intent in striking another member of the same minority 

group.”); see also id. at 900–01 (collecting cases). That’s what 

happened here, and this factor bolsters the judge’s conclusion that the prosecutor did not use a peremptory strike

against Callahan with discriminatory intent.

We caution, however, that the racial composition of the 

venire and the seated jury cannot be the sole consideration 

under Batson. The Equal Protection Clause is violated if even 

a single juror is excluded because of invidious racial discrimination. Cf. Powers v. Ohio, 499 U.S. 400, 409 (1991) (“An 

individual juror ... possess[es] the right not to be excluded 

from [a jury] on account of race.”). We see no indication here

that the judge misunderstood this principle.

In the end, the defendants—from whom “the burden of 

persuasion regarding racial motivation never shifts,” United 

States v. McAllister, 693 F.3d 572, 578 (6th Cir. 2012)—have 
18 Nos. 13-2929, 13-3008 & 14-2297

not persuaded us that the judge clearly erred in rejecting 

their Batson challenge to the prosecutor’s peremptory strike 

against Callahan. They rely heavily on McMath, but we don’t 

think that case controls. There, the prosecutor struck a black

juror because of the “expression on his face,” and the judge

summarily denied the defendant’s Batson challenge. McMath, 

559 F.3d at 661. We held, following Snyder, 552 U.S. at 479, 

that “summary denial does not allow us to assume that the 

prosecution’s reason was credible,” McMath, 559 F.3d at 666. 

Here, in contrast, the judge did not rule summarily. We find 

no clear error.

C. Hearsay Evidence

Special Agent James Krueger led the DEA’s multiyear investigation of Westlawn and Six Trey. He testified that in the 

mid-2000s, the DEA gathered information about the two 

gangs through search warrants, controlled buys, and recorded phone calls. He explained that the effectiveness of these 

techniques waned as the years wore on because the gangs 

adapted their practices to evade detection. As a result, the 

September 2011 indictment was based primarily on evidence 

derived from “historical debriefs”—interviews with informants—along with “a little bit of surveillance.”

Agent Krueger identified McClain and Cruse as targets 

of the investigation that produced the September 2011 

indictment. The prosecutor then asked this question: “Did 

you receive information from confidential informants about 

the drug trafficking activities of Daniel McClain and Demettris Cruse?” McClain objected on hearsay grounds, 

noting that the government “[wi]ll have the informants 

present to testify, Judge.” The judge overruled the objection, 

and Agent Krueger answered, “Yes, I did.”
Nos. 13-2929, 13-3008 & 14-2297 19

McClain argues that his objection to this question should 

have been sustained. We review evidentiary rulings for 

abuse of discretion and will reverse only if no reasonable 

person could have adopted the court’s view of the matter.

United States v. Causey, 748 F.3d 310, 316 (7th Cir. 2014). 

Moreover, reversal for evidentiary error will be appropriate 

only if the error affected the defendant’s substantial rights, 

meaning that an average juror would have found the prosecution’s case significantly less persuasive without the improper evidence. Id.

Hearsay is familiarly defined as an out-of-court statement offered to prove the truth of the matter asserted. See 

FED. R. EVID. 801(c). Whether a particular statement is hearsay “will most often hinge on the purpose for which it is 

offered.” United States v. Linwood, 142 F.3d 418, 425 (7th Cir.

1998). As relevant here, “[w]e have recognized repeatedly 

that statements offered to establish the course of the investigation, rather than to prove the truth of the matter asserted, 

are nonhearsay and therefore admissible.” United States v. 

Taylor, 569 F.3d 742, 749 (7th Cir. 2009) (internal quotation 

marks omitted). If the jury would not otherwise understand 

why an investigation targeted a particular defendant, testimony regarding a confidential informant’s tip “could dispel 

an accusation that the officers were officious intermeddlers 

staking out [the defendant] for nefarious purposes.” United 

States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). 

Considered in context, Agent Krueger’s answer to the 

question whether law enforcement had “received information” about drug trafficking by McClain and Cruse was

just this sort of “course of investigation” testimony. 

McClain’s attorney had emphasized in opening statement 
20 Nos. 13-2929, 13-3008 & 14-2297

that there would be no physical evidence of drug trafficking. 

The government was entitled to ask Agent Krueger how the 

DEA came to suspect McClain despite a lack of physical 

evidence. The question came amidst a litany of questions 

about the methods the DEA used to investigate the case: the 

preceding question concerned surveillance of Six Trey, and 

the subsequent one was about the use of search warrants.

Agent Krueger’s testimony explained why the police were 

investigating McClain; whether the informants’ tips were

truthful was beside the point. Indeed, as McClain’s lawyer 

pointed out in objecting to the question, numerous informants were scheduled to testify against McClain at trial, and 

the jury would have ample opportunity to decide if they 

were credible. 

As with all evidence, the probative value of the testimony 

must not be substantially outweighed by the risk of unfair 

prejudice. See FED. R. EVID. 403. But Agent Krueger’s simple 

three-word answer (“Yes, I did”) was a particularly innocuous use of course-of-investigation testimony, especially 

given that so many government cooperators later testified at 

trial.

For the first time on appeal, McClain argues that Agent 

Krueger’s answer to this question violated his Sixth 

Amendment right to confront witnesses. It’s true that the 

“informants” mentioned in the question were unidentified, 

so we do not know if they were the same cooperators who 

testified at trial. Because this objection was not preserved,

however, McClain must shoulder the heightened burden of 

plain-error review. United States v. Anderson, 450 F.3d 294, 

299 (2006). Even if there was error, he hasn’t come close to 

showing that it affected his substantial rights, as required to 
Nos. 13-2929, 13-3008 & 14-2297 21

warrant reversal. Id. Seven cooperating witnesses testified 

that they engaged in drug transactions with McClain and 

gave the DEA information about this activity. They were 

subject to full cross-examination. In light of the abundant 

testimony from cooperating witnesses, it cannot reasonably 

be argued the verdict was influenced by Agent Krueger’s 

affirmative answer to the question whether unidentified 

informants fingered McClain. See id. (rejecting a Confrontation Clause challenge because the defendants’ substantial 

rights were not violated when five witnesses testified about 

their drug dealing at trial).

D. Sufficiency of the Evidence

McClain challenged the sufficiency of the government’s 

evidence in a Rule 29 motion for a judgment of acquittal. See 

FED. R. CRIM. P. 29(a), (c). He reprises this argument here. 

Our review is de novo. United States v. Mohamed, 759 F.3d 

798, 803 (7th Cir. 2014). We view the evidence in the light 

most favorable to the government and will affirm if any 

rational trier of fact could have found the elements of the 

crime beyond a reasonable doubt. Id. 

Conspiracy has two elements: (1) an agreement to commit an unlawful act; and (2) the defendant must have knowingly and intentionally joined that agreement. United States 

v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006). The government 

can prove these elements with circumstantial evidence, 

though the Supreme Court has warned that “[i]n some cases 

reliance on [circumstantial] evidence perhaps has tended to 

obscure the basic fact that the agreement is the essential evil at 

which the crime of conspiracy is directed.” Iannelli v. United 

States, 420 U.S. 770, 777 n.10 (1975) (emphasis added).

McClain says that’s exactly what happened here: The ev-
22 Nos. 13-2929, 13-3008 & 14-2297

idence shows that he engaged in multiple buyer-seller 

transactions only, not that he participated in a conspiratorial 

agreement to distribute drugs. “Although every drug deal 

involves an unlawful agreement to exchange drugs, we’ve 

held that a buyer-seller arrangement can’t by itself be the 

basis of a conspiracy conviction because there is no common 

purpose: The buyer’s purpose is to buy; the seller’s purpose 

is to sell.” United States v. Long, 748 F.3d 322, 325 (7th Cir. 

2014) (internal quotation marks omitted). 

Whether the evidence establishes a conspiratorial agreement must ultimately be determined by the totality of the 

circumstances, and we conduct a “holistic assessment of 

whether the jury reached a reasonable verdict.” United States 

v. Brown, 726 F.3d 993, 1002 (7th Cir. 2013). Still, we have 

recognized “a few per se rules.” Id. For example:

A reasonable jury can infer a conspiracy from 

evidence of a consignment relationship, or a relationship exhibiting three qualities: “multiple, 

large-quantity purchases, on credit.” Other 

characteristics that distinguish a conspiracy 

from a buyer-seller relationship include “an 

agreement to look for other customers, a payment of commission on sales, an indication that 

one party advised the other on the conduct of 

the other’s business, or an agreement to warn 

of future threats to each other’s business 

stemming from competitors or lawenforcement authorities.”

United States v. Jones, 763 F.3d 777, 807 (7th Cir. 2014) (quoting Brown, 726 F.3d at 1002, 999).
Nos. 13-2929, 13-3008 & 14-2297 23

The government introduced ample evidence showing

that McClain knowingly participated in a long-running 

conspiratorial agreement to distribute drugs in the neighborhoods where the Six Trey and Westlawn gangs operated.

Nearly all the witnesses described the two gangs as informal 

organizations that advanced their members’ drug-trafficking 

activities by (among other things) keeping out intruders, 

enforcing conduct norms, and providing warnings about 

law enforcement. Testimony established that McClain was a 

member of Six Trey and a longtime, large-scale cocaine 

supplier within the organization, and also that he regularly 

supplied drugs to Westlawn gang members for resale in the 

housing project. This testimony was easily sufficient for the 

jury to find that he entered into a conspiratorial agreement.

Additionally, McClain’s relationship with his middlemen—particularly, Melvin Cooper (from 1996 to 2001) and 

Dawan Howard (from 2007 onward)—supports the conspiracy conviction. Cooperation with a middleman is a conspiracy per se because the dealer and the middleman have agreed 

to work together to distribute drugs to third parties. See 

United States v. Bey, 725 F.3d 643, 649–50 (7th Cir. 2013); 

United States v. Payton, 328 F.3d 910, 911 (7th Cir. 2003) 

(collecting cases). Four witnesses—Mathis, Mohomes, Riley,

and Winters—testified that McClain used Cooper and 

Howard as his middlemen to sell drugs, and that testimony 

was independently adequate to satisfy both elements of the 

conspiracy charge.

It’s true that the indictment did not name Cooper or 

Howard as coconspirators. But it alleged a conspiracy 

among certain identified members of the Westlawn and Six 

Trey gangs and other “persons known and unknown.” The 
24 Nos. 13-2929, 13-3008 & 14-2297

jury was entitled to believe the testimony about McClain’s 

use of middlemen, and that testimony supports his conviction even though they were not named as coconspirators in 

the indictment. See United States v. Avila, 557 F.3d 809, 816 

(7th Cir. 2009) (“Proving that [the defendant] joined the 

conspiracy alleged in the indictment does not require that 

the government prove he conspired with the individuals

named in the indictment. ... [The government] need only 

prove that the defendant conspired with anyone to commit 

the crime charged in the indictment.”).

McClain responds with a general attack on the credibility 

of the government’s witnesses, many of whom received 

sentence reductions in exchange for their agreement to 

testify. But evaluating the credibility of the witnesses is the 

jury’s job. McClain also notes—correctly—that membership 

in a gang is not definitive proof of conspiracy. See United 

States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005). But the 

jury was entitled to infer from McClain’s membership in the 

Six Trey gang and his long history of supplying drugs to 

middlemen for redistribution in the Six Trey and Westlawn 

territories that he intentionally entered into a conspiratorial 

agreement.

McClain’s fallback argument is that the government 

failed to prove his involvement in a single conspiracy 

stretching from 1996 to 2011, as described in the indictment.

At most, he argues, the evidence established that he participated in multiple, unconnected conspiracies. This is essentially an argument that a fatal variance exists between the 

conspiracy charged and the conspiracy (or conspiracies)

proven.
Nos. 13-2929, 13-3008 & 14-2297 25

As we’ve already explained, “[a] variance arises when 

the facts proved by the government at trial differ from those 

alleged in the indictment.” Avila, 557 F.3d at 815 (quoting 

United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)); see 

also id. (“We treat a conspiracy variance claim as nothing 

more than a challenge to the sufficiency of the evidence.”).

To prevail on this claim, McClain must establish that (1) the 

evidence at trial was insufficient for a rational juror to find

that he belonged to a single conspiracy (even if it could also 

have been interpreted to show multiple conspiracies); and

that (2) he was prejudiced by the variance. Id. Prejudice in 

this context generally means that the variance either unfairly 

surprised the defendant, created a risk of subsequent prosecution for the same offense (this is only an issue when 

multiple conspiracies were charged but only one was proven), or threatened to confuse the jury. Id. 

“[B]y their very nature, drug conspiracies are loosely-knit 

ensembles.” United States v. Townsend, 924 F.2d 1385, 1391 

(7th Cir. 1991). Here, as we’ve noted, the Westlawn and Six 

Trey gangs had their own identities, members, and territories, and they occasionally feuded. But some members, 

including McClain, moved freely between the gangs to 

supply the drug trade within their respective territories.5

Viewed in the light most favorable to the government, the 

 5 The government frames the Westlawn and Six Trey conspiracy as a 

“hub and spoke” conspiracy, but our comment in United States v. Townsend, 924 F.2d 1385, 1392 (7th Cir. 1991), bears repeating: “The fact that 

we can squeeze a group into a hypothetical organizational chart says 

little about whether a single agreement exists between the members of 

the group,” and “organizational construct[s] ... don’t eliminate the need 

to inquire directly into whether the defendants had a mutual interest in 

achieving the goal of the conspiracy.” 
26 Nos. 13-2929, 13-3008 & 14-2297

evidence of a loose connection between the two gangs—an 

overlap in membership and evidence of cooperation (such as 

McClain’s use of two Westlawn members as middlemen)—is 

sufficient to support a single conspiracy. See United States v. 

Cerro, 775 F.2d 908, 914 (7th Cir. 1985) (describing “mutual 

support” conspiracies that “require at most that the various 

arrangements and transactions alleged to constitute or 

manifest a single conspiracy contribute to the success of the 

overall undertaking and in that sense reinforce each other”); 

United States v. Longstreet, 567 F.3d 911, 919 (2009) (“So long 

as the evidence demonstrates that the co-conspirators embraced a common criminal objective, a single conspiracy 

exists, even if the parties do not know one another and do 

not participate in every aspect of the scheme.”) (quotation 

marks omitted).

But even if the evidence supported only smaller, unconnected conspiracies as McClain argues, he hasn’t shown

prejudice. The indictment provided adequate notice of the 

nature of the government’s evidence against McClain, and he 

does not argue that he was the victim of unfair surprise at 

trial. All seven of the government’s coconspirator witnesses 

testified about McClain’s role as a drug supplier in the Six 

Trey and Westlawn territories. There was little risk that the 

jury would have been confused about “spillover” evidence 

describing a distinct conspiracy in which he did not participate. See Bustamante, 493 F.3d at 887. This argument also 

fails.

E. Buyer-Seller Instruction

As we’ve noted, an agreement to buy or sell drugs is not 

itself conspiratorial. Rather, the law of conspiracy “punish[es] criminal objectives beyond the sale itself—most 
Nos. 13-2929, 13-3008 & 14-2297 27

typically, the parties’ agreement subsequently to distribute 

the drugs exchanged.” United States v. Askew, 403 F.3d 496, 

503 (7th Cir. 2005). McClain and Cruse asked the district 

court to instruct the jury about the distinction between a 

buyer-seller relationship and a conspiracy. Specifically, they 

requested Seventh Circuit Pattern Criminal Jury Instruction 5.10(A):

A conspiracy requires more than just a buyerseller relationship between the defendant and 

another person. In addition, a buyer and seller 

of [cocaine] do not enter into a conspiracy to 

distribute [cocaine] simply because the buyer 

resells [cocaine] to others, even if the seller 

knows that the buyer intends to resell the [cocaine].

The government objected, and the judge declined to give the 

instruction. Both defendants raise this issue on appeal.

We review the denial of a requested jury instruction de 

novo. United States v. Love, 706 F.3d 832, 838 (7th Cir. 2013). 

“Defendants are not automatically entitled to any particular 

theory-of-defense jury instruction.” United States v. Walker, 

746 F.3d 300, 307 (7th Cir. 2014). Rather, 

[a] defendant is only entitled to a jury instruction that encompasses [a] theory of the defense 

if (1) the instruction represents an accurate 

statement of the law; (2) the instruction reflects 

a theory that is supported by the evidence; 

(3) the instruction reflects a theory which is not 

already part of the charge; and (4) the failure to 
28 Nos. 13-2929, 13-3008 & 14-2297

include the instruction would deny the defendant a fair trial.

Id. (internal quotation marks and alteration omitted). Only 

the second and fourth steps in the analysis are contested

here: Did the evidence support Cruse’s or McClain’s request 

for a buyer-seller instruction, and if so, were they denied a 

fair trial because the jury was not instructed on this theory?

We’ve said many times that “district courts should give a 

‘buyer-seller’ instruction ... where the jury could rationally 

find, from the evidence presented, that the defendant merely 

bought or sold drugs but did not engage in a conspiracy.” 

Love, 706 F.3d at 838 (citing United States v. Chavis, 429 F.3d 

662, 671–72 (7th Cir. 2005)); United States v. Thomas, 150 F.3d 

743, 746 (7th Cir. 1998) (per curiam) (“If a jury rationally 

could find in the defendant’s favor on some material issue, 

then the jury must be instructed on that subject.”); 7TH CIR.

PATTERN CRIM. JURY INSTRUCTIONS 5.10(A) cmt. (2012) (“This 

[buyer-seller] instruction should be used only in cases in 

which a jury reasonably could find that there was only a 

buyer-seller relationship rather than a conspiracy.”).

Of course, there will be cases in which the evidence does 

not support the reasonable inference that the defendant was 

merely a buyer-seller; an irrelevant instruction would only 

serve to confuse the jury and need not be given. See Love, 

706 F.3d at 839. We have frequently upheld district courts 

that have declined to give the instruction in the face of 

strong evidence of a conspiratorial agreement. See, e.g., id.

(holding no buyer-seller instruction was required in a case in 

which the evidence included phone logs, videotapes, audio 

recordings, and testimony from an informant and lawenforcement officers); Johnson, 437 F.3d at 669 (finding no 
Nos. 13-2929, 13-3008 & 14-2297 29

plain error where the government introduced audio recordings showing that the defendant acted as a broker for his 

coconspirator, as well as evidence from controlled buys); 

Askew, 403 F.3d at 504 (finding no plain error where the 

record included direct surveillance of drug deals, evidence 

that the defendant received drugs at below-market prices, 

and other evidence linking the defendant to his coconspirator); United States v. Fort, 998 F.2d 542, 543 (7th Cir. 1993)

(holding that the instruction was not necessary when there 

was wiretap and surveillance evidence documenting the 

defendant’s cooperation with his coconspirator).

The government argues as a threshold matter that Cruse 

and McClain were not entitled to a buyer-seller instruction 

because they tried to portray themselves as “innocent bystanders.” The government reads Love, Johnson, Askew, and 

Fort as establishing a general principle that a defendant who 

denies selling drugs is never entitled to buyer-seller instruction. That’s not correct. As we’ve just noted, in each of those 

cases we reviewed the entire record and upheld the denial of 

the instruction based on strong, direct evidence of conspiracy (e.g., videotapes, audio recordings, surveillance, controlled buys, informant testimony) and the absence of any 

record support for a buyer-seller relationship. Moreover, and 

importantly, the government’s understanding of these cases 

is in tension with Mathews v. United States, 485 U.S. 58, 63–64 

(1988), which holds that inconsistent defenses are permissible. For these reasons, we think the government has misread 

this line of cases.

With the legal background now in place, we begin with 

Cruse. Four witnesses—Seymore, Mathis, Winters, and 

Riley—testified that they engaged in drug transactions with
30 Nos. 13-2929, 13-3008 & 14-2297

Cruse. But a reasonable jury could have found that these 

deals were merely buyer-seller transactions. None of the 

drug sales had any of the usual markers of conspiracy, such 

as consignment arrangements, profit sharing, or agreements 

regarding further distribution of the drugs. Seymore and 

Mathis said they bought drugs from Cruse but always paid 

in cash upon delivery. Winters and Riley testified that they 

sold drugs to Cruse and he normally paid in full upon 

delivery; only occasionally did they sell drugs to him on 

credit. Occasional credit sales are not necessarily inconsistent with a buyer-seller relationship. See United States v. 

Johnson, 592 F.3d 749, 755 n.5 (7th Cir. 2010). Repeated, largescale sales of drugs on credit are a sufficient basis from 

which a jury can infer a conspiratorial agreement, but we 

cannot conclude that the evidence of sporadic purchases on 

credit defeats Cruse’s request for a buyer-seller instruction. 

The government counters that Cruse could not have been 

a mere buyer-seller because he taught Winters how to cook 

powder cocaine into crack, and this sharing of advice can 

indicate a conspiracy. See Jones, 763 F.3d at 807. But the “cooking lesson” took place before the start date of the conspiracy, at 

a time when Winters was in seventh grade and Cruse was just a 

few years older. A reasonably jury could conclude that Cruse’s 

tutoring session was not evidence of an agreement regarding 

the distribution of drugs years later. 

The government also suggests that since Cruse was a 

member of Westlawn, he was part of the gang’s drugdistribution network regardless of the specific sales described at trial. But Cruse’s status with respect to Westlawn 

was disputed. Winters, who self-identified as a Westlawn 

member, answered “no” when asked if Cruse was a member 
Nos. 13-2929, 13-3008 & 14-2297 31

of Westlawn. (Winters said he sold drugs to Cruse because 

they had grown up together.) Riley said Cruse was a 

Westlawn member, but he also explained that he considered 

everyone who grew up in the Westlawn housing projects to 

be a member of the gang. Seymore’s testimony on this point 

was ambiguous; he said that Cruse was “affiliated” with 

Westlawn but was allowed to sell drugs in the neighborhood

because he “grew up in that area.”

In short, the testimony about Cruse’s relationship to the 

Westlawn gang was sufficiently equivocal that the jury 

might reasonably have rejected the government’s argument 

that Cruse was a gang member. Alternatively, the jury might

reasonably have concluded that even if Cruse was a member, 

“membership” was so informal (everyone from the neighborhood was “in” by default) that it did not suggest a conspiratorial agreement, but instead only a buyer-seller relationship. See Avila, 465 F.3d at 798 (“The government has 

confused gang membership with membership in a conspiracy ... .”). On this record we think Cruse has shown that the 

evidence supported an inference that he engaged in buyerseller transactions.

McClain is a different story. Burton testified that McClain 

was a member of Six Trey and served as the gang’s major 

drug supplier. Mohomes testified that he regularly saw 

McClain selling drugs out of a drug house operated by Six 

Trey members. Even more decisively, Mohomes, Riley,

Mathis, and Winters all testified that Cooper and Howard 

worked as middlemen for McClain. As we’ve explained, the 

relationship between middlemen and their superiors is per 

se conspiratorial because it is an agreement to cooperate to 

sell drugs. See Thomas, 150 F.3d at 745 (equating conspiracy 
32 Nos. 13-2929, 13-3008 & 14-2297

with a “business partners[hip]”). Because a middleman and 

his principal are on the same side of a transaction, they 

cannot have a buyer-seller relationship. Payton, 328 F.3d at 

912 (“The ‘buyer-seller’ argument is irrelevant ... [if] the 

conspirators are on the same side of the sale.”).

Although “[i]n a dubious case it may often be better to give 

the proposed instruction and let the jury sort it out,” United 

States v. Meyer, 157 F.3d 1067, 1076 (7th Cir. 1998), a defendant 

is not entitled to a theory-of-the-defense instruction unless the 

evidence supports the theory. The robust and uncontroverted

evidence regarding McClain’s use of middlemen made the 

buyer-seller instruction inapposite. See Fort, 998 F.2d at 544–45 

(holding that the buyer-seller instruction was not required 

when the alleged conspiracy was between the defendant and 

a “broker” who arranged drug sales on his behalf). The 

judge properly denied McClain’s request for the instruction.

This brings us back to Cruse. Was he denied a fair trial 

when the judge refused to give the buyer-seller instruction 

when the evidence supported it? We have generally answered this question “yes”: If “the evidence was such that a 

reasonable jury could have found that [the defendant] was 

merely a buyer from the conspiracy, the failure to give a 

buyer-seller instruction denied [him] a fair trial.” Meyer, 

157 F.3d at 1075; see also United States v. Gee, 226 F.3d 885, 895 

(7th Cir. 2000) (“We have no way of knowing whether, had 

the jury understood the distinction between a conspiracy 

and a buyer-seller relationship, it would still have convicted 

[the defendants] of conspiracy.”).

An uninstructed jury is not likely to be able to intuit the

distinction between an arm’s-length agreement to buy or sell 

drugs and a conspiratorial agreement to distribute drugs. 
Nos. 13-2929, 13-3008 & 14-2297 33

For this reason, we have never found a failure to give the

buyer-seller instruction to be harmless. And the error was 

not harmless here. Cruse is entitled to a new trial with the 

benefit of the buyer-seller jury instruction.

F. Drug-Quantity Instruction

McClain and Cruse raise a second claim of instructional 

error, this one related to the special verdict form that the jury 

used to find the type and quantities of drugs attributable to 

the defendants.6 The jury was told that Cruse and McClain 

were responsible for “the amount of cocaine involved in the 

agreement, and all amounts involved in all acts of the coconspirators committed in furtherance of the conspiracy.” 

This instruction omitted the Pinkerton principle that coconspirator liability only extends to those criminal acts that 

(1) were reasonably foreseeable to the defendants; and 

(2) occurred during the time that they were members of the 

conspiracy. See Pinkerton v. United States, 328 U.S. 640, 647–48 

(1946); 7TH CIR. PATTERN CRIM. JURY INSTRUCTIONS 5.11 

(2012). 

 

6 Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United 

States, 133 S. Ct. 2151 (2013), facts that increase either a statutory maximum or trigger a mandatory minimum sentence must be found beyond 

a reasonable doubt by the jury. Alleyne was decided several months after 

this trial. Ordinarily, a “new rule for the conduct of criminal prosecutions 

is to be applied retroactively to all cases ... pending on direct review ... , 

with no exception for cases in which the new rule constitutes a ‘clear 

break’ with the past.” Johnson v. United States, 520 U.S. 461, 467 (1997) 

(quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). This creates no 

complication here because the jury used a special verdict form to find the 

drug types beyond a reasonable doubt (under Apprendi, its findings 

could have increased the statutory maximums). 
34 Nos. 13-2929, 13-3008 & 14-2297

The defendants did not object to the instruction, so our

review is for plain error only. Everyone agrees that the jury 

should have been instructed on the Pinkerton doctrine. But 

the government argues that we need not correct the error 

because it did not seriously affect the fairness, integrity, or 

public reputation of the proceedings, as required to win

reversal on plain-error review. United States v. Anderson, 

450 F.3d 294, 299 (7th Cir. 2006).

Because we’re vacating Cruse’s conviction on other 

grounds, we focus our attention on McClain. As we’ve 

already explained (back in our discussion of Henderson’s 

plea agreement), drug quantity is not an element of a drug 

conspiracy under § 841(a)(1). See United States v. Martinez, 

301 F.3d 860, 865 (7th Cir. 2002). Accordingly, the Pinkerton 

instructional error does not cast doubt on McClain’s conspiracy conviction. Rather, the remedy for the error would be 

resentencing under the default drug-conspiracy penalty 

provision, § 841(b)(1)(C). See United States v. Delgado-Marrero, 

744 F.3d 167, 191 (1st Cir. 2014); United States v. Daniels, 

723 F.3d 562, 572 (5th Cir. 2013).

The pertinent question is the effect of the Pinkerton instructional error on the jury’s finding that the conspiracy 

involved at least five kilograms of cocaine or 280 grams of 

crack for purposes of the penalty scheme in § 841(b)(1)(A).

We’re confident that the error had no effect at all. Even with 

the more narrowly focused Pinkerton instruction, the jury 

would have attributed more than 5 kilograms of powder 

cocaine or 280 grams of crack to McClain. Five of the six 

cooperating witnesses—Winters, Burton, Mathis, Mohomes, 

Harvester, and Riley—testified that they engaged in drug 

transactions directly with McClain or through his middle-
Nos. 13-2929, 13-3008 & 14-2297 35

men, and their drug-quantity estimates alone were sufficient 

to trigger the mandatory minimum sentence under 

§ 841(b)(1)(A). Because McClain was personally responsible 

for such a large quantity of drugs during the course of this 

long-running conspiracy, there is no reason to doubt that the 

threshold limits set forth in § 841(b)(1)(A) were met, regardless of the failure to instruct on the Pinkerton principle of 

reasonable foreseeability. The error did not affect McClain’s 

substantial rights.7

III. Conclusion

Summing up, we AFFIRM the judgments against Henderson and McClain; as for Cruse, we VACATE the judgment and 

remand for a new trial.

 7 McClain also argues in a footnote to his reply brief that the court 

miscalculated his recommended sentence under the Sentencing Guidelines. However, “[a]rguments raised for the first time in a reply brief are 

waived.” Damato v. Sullivan, 945 F.2d 982, 988 n.5 (7th Cir. 1991) (quotation marks omitted).