In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

Nos. 21-1521, 21-2618, & 21-2689 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ERIC BARD, CARLO PAYNE,

and ANTONIO MCCLURE, 

Defendants-Appellants. 

____________________ 

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division. 

No. 1:19-cr-00029-JRS-DML — James R. Sweeney II, Judge. 

____________________ 

ARGUED NOVEMBER 28, 2022 — DECIDED JULY 10, 2023 

____________________ 

Before ROVNER, ST. EVE, and KIRSCH, Circuit Judges. 

KIRSCH, Circuit Judge. In early 2018, law enforcement began investigating an Indianapolis drug trafficking organization led by Jshaun Trice. The investigation led to the indictments of Trice and over twenty of his associates for crimes 

including drug conspiracy, possession, and distribution. Antonio McClure and Carlo Payne, two of Trice’s associates, 

were arrested following a drug surveillance operation on 
2 Nos. 21-1521, 21-2618, & 21-2689 

October 21, 2018. Law enforcement intercepted a phone call 

between McClure and Trice during which they spoke in 

coded language suggestive of a drug deal. Officers later observed McClure and Payne meet with Trice and pursued 

Payne in a high-speed chase during which he threw a sock 

containing 214.2 grams of methamphetamine out of his car 

window. Payne and McClure later discussed these events in 

detail on a recorded jail call. Both were charged as part of the 

drug conspiracy and with purchasing 50 grams or more of

methamphetamine from Trice for the purpose of distribution, 

in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii). 

The government eventually dropped the conspiracy charge as 

to McClure and Payne. Both defendants went to trial on the 

remaining count and were convicted of possession of methamphetamine with intent to distribute.

McClure and Payne raise three categories of arguments on 

appeal. First, they argue that the government impermissibly 

struck a Black potential juror in violation of Batson v. Kentucky, 

476 U.S. 79 (1986). They argue that the government’s explanation for striking this juror—that he had a brother with a drug 

dealing conviction—was pretext because some white jurors 

who were not stricken also had relatives who had been involved with drugs. Second, they argue that the district court 

erred in permitting Detective Jason Hart to offer both expert 

and lay opinions at trial, and that the court failed to adequately instruct the jury as to his dual-role testimony according to the guidelines set forth in United States v. Jett, 908 F.3d 

252 (7th Cir. 2018). Third, they contend that the evidence supporting their convictions was legally insufficient. We take 

each argument in turn, filling in the facts as we go. Finding no 

error, we affirm their convictions. 
Nos. 21-1521, 21-2618, & 21-2689 3

This appeal also involves a third Trice associate, Eric Bard, 

who pleaded guilty to distribution of 50 grams or more of 

methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). 

The district judge sentenced him to 262 months, the very bottom of his Sentencing Guidelines range. Bard argues on appeal that his sentence is substantively unreasonable. We disagree, and thus affirm his sentence too. 

I 

A 

We begin with McClure and Payne’s Batson argument. We 

defer to a district court’s Batson findings and review those 

findings only for clear error. United States v. Jones, 56 F.4th 455, 

477 (7th Cir. 2022). “Unless we arrive at a definite and firm 

conviction that a mistake has been made,” we will affirm. Id.

(cleaned up). As opponents of the strike, McClure and Payne

bear the burden of proving the existence of purposeful discrimination. Johnson v. California, 545 U.S. 162, 170–71 (2005). 

Prosecutors are prohibited from “discriminat[ing] on the 

basis of race when exercising peremptory challenges against 

prospective jurors in a criminal trial.” Flowers v. Mississippi, 

139 S. Ct. 2228, 2234 (2019). Courts use a three-step framework 

to determine whether a Batson violation has occurred. First, 

the defendant “must make a prima facie case that the peremptory strike was racially motivated.” Jones, 56 F.4th at 477. Second, if such a showing is made, the prosecution “must then 

provide a non-discriminatory explanation for its decision to 

strike the juror.” Id. At the final step, the district court determines “whether the defendant has carried the burden of 

showing purposeful discrimination—that is, that the government’s race-neutral justification is not credible.” United States 
4 Nos. 21-1521, 21-2618, & 21-2689 

v. Howard, 67 F.4th 876, 879 (7th Cir. 2023). In doing so, the 

district judge considers all the relevant circumstances, including the prosecutor’s demeanor, to determine “the honesty—

not the accuracy—of a proffered race-neutral explanation.” 

Jones, 56 F.4th at 477; see also United States v. Lovies, 16 F.4th 

493, 500 (7th Cir. 2021). If a prosecutor’s proffered reason for 

striking a Black juror applies equally to an otherwise-similar 

non-Black juror who was not stricken, “that is evidence tending to prove purposeful discrimination[.]” United States v. 

Taylor, 636 F.3d 901, 905 (7th Cir. 2011). While “implausible or 

fantastic justifications may (and probably will) be found to be 

pretexts for purposeful discrimination[,]” Purkett v. Elem, 514 

U.S. 765, 768 (1995), we acknowledge that from a district 

judge’s “firsthand vantage point,” he or she is “in the best position to make the determination [of whether] the prosecutors 

were sincere.” Lovies, 16 F.4th at 502. 

At the beginning of jury selection, the court separated 48 

potential jurors into two waves for voir dire. The judge conducted the questioning and asked the following questions of 

each wave: (1) Have you, any member of your family, or a 

close friend ever been involved in the criminal justice system 

whether as a defendant, witness, or victim?; and (2) Have you 

had any experience involving yourself, any member of your 

family, or any close friend that relates to the use or possession 

of illegal drugs or narcotics?

The government used five of its six peremptory challenges 

during the first wave. During the second wave, the government used its last peremptory challenge on Juror 39, a Black 

man. McClure and Payne raised a Batson objection, arguing 

that Juror 39 was impermissibly stricken because of his race. 

Although the court expressed doubts as to whether the 
Nos. 21-1521, 21-2618, & 21-2689 5

defendants had made a prima facie case, it proceeded to rule 

on the remaining Batson steps, making step one moot. See id.

at 503 (“Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has 

ruled on the ultimate question of intentional discrimination, 

the preliminary issue of whether the defendant had made a 

prima facie showing becomes moot.”) 

At the second step, the government provided a permissible race-neutral justification for the strike: Juror 39 answered 

that his brother had been convicted of drug dealing. See 

United States v. Lampkins, 47 F.3d 175, 178 (7th Cir. 1995) (“[A] 

prosecutor may permissibly strike a prospective juror on the 

grounds that close relatives or friends have been convicted of 

the very crime at issue.”). McClure and Payne argued that this 

reason for striking Juror 39 was pretext because white prospective jurors also answered that their family members had 

been involved with drugs, yet were not stricken. The government acknowledged that Juror 34 answered that her sister had 

been incarcerated for writing bad checks and “something to 

do with drugs,” but that she did not know specifics. The defendants also identified Juror 51, who answered that her 

brother-in-law had been convicted on a charge relating to 

shipping marijuana from Africa when he was in the Peace 

Corps in the 1970s, and Juror 62, who answered that her sister 

had pleaded guilty to methamphetamine possession. The 

government argued that those jurors were different because

only Juror 39 specifically said that he had a brother convicted 

of drug dealing. 

At the third step, the district court evaluated the credibility of the government’s justification by assessing the prosecutor’s demeanor and the reasonableness of his explanation. To 
6 Nos. 21-1521, 21-2618, & 21-2689 

the government, the specificity of Juror 39’s answer—that his 

brother had been convicted of drug dealing, rather than just 

any general drug charge—differentiated him from Jurors 34, 

51, and 62. The court agreed that this was “an appreciable difference,” found the prosecutor’s demeanor to be credible, and 

overruled the Batson challenge. Ultimately, the jury consisted 

of twelve white jurors, one white alternate, and one Black alternate.

On appeal, McClure and Payne argue that if the government were not motivated by race, it would have also moved 

to strike white jurors who had relatives convicted of drug 

charges. In the district court, McClure and Payne compared 

Juror 39 to Jurors 51 and 62, while the government acknowledged the similarities between Juror 39 and Juror 34. On appeal, McClure and Payne compare Juror 39 to Jurors 34 and 

13 while failing to mention Jurors 51 and 62 at all in their 

opening brief.

We begin our analysis with Juror 34, who responded that 

her sister had been incarcerated for “writing bad checks and 

something to do with drugs.” She then apologized, saying

“Sorry. I’m not too clear on it.” The court asked whether she 

knew anything more, and Juror 34 responded that she did not. 

Later, when the court asked whether anyone had a circumstance that would make jury service especially difficult, Juror

34 expressed concerns. She explained that she was an accountant, it was busy season, and she had a long commute to 

the courthouse. Defense counsel later moved to strike multiple jurors for cause, including Juror 34. Payne’s counsel argued that Juror 34 could not be fully attentive throughout trial 

and should be excused. The government opposed the strike, 

and the court denied it. Neither defense counsel nor the 
Nos. 21-1521, 21-2618, & 21-2689 7

government used a peremptory strike on Juror 34, so she was 

seated.

McClure and Payne’s arguments related to Juror 34 are 

twofold. First, they argue that if the government was genuine

about not wanting jurors who had a relative convicted of drug 

dealing, it would have used one of its peremptory strikes on 

Juror 34. Second, they argue that at the very least, if the government were sincere, it would not have opposed their motion to strike Juror 34 for cause. We consider each argument, 

keeping in mind our deferential standard of review.

The defendants ask us to engage in a side-by-side comparison of Jurors 39 and 34. When offering its race-neutral reason

for striking Juror 39, the government explained that it viewed 

his answer—about his brother’s involvement with drugs—

differently from Juror 34’s answer. While Juror 39 knew his

brother had a conviction for drug dealing, Juror 34 did not 

know any details of her sister’s conviction. All Juror 34 knew 

was that her sister was convicted of “something to do with 

drugs.” While in theory her sister could have been convicted 

of drug dealing like Juror 39’s brother, Juror 34 expressly 

stated that she was unclear on the specifics and neither the 

government, the defense, nor the judge pressed her any further. On this record, we cannot say that the judge clearly erred 

in concluding that the government drew a credible race-neutral distinction between Jurors 34 and 39, and further, that the 

government honestly struck the latter because his brother was 

convicted of drug dealing. And nothing about the government’s earlier opposition to defendants’ for-cause challenge 

to Juror 34 suggests any discriminatory motive.

We now consider Juror 13. The government suggests that 

McClure and Payne waived their argument regarding Juror 
8 Nos. 21-1521, 21-2618, & 21-2689 

13 because they never raised this comparison as part of their 

Batson challenge below. See United States v. Brown, 809 F.3d 

371, 374 (7th Cir. 2016) (“It is the defendant’s burden to raise 

specific arguments that the government’s justification was 

pretextual so that the court can properly address them.”).

Nevertheless, the Supreme Court has suggested that “a retrospective comparison of jurors based on a cold appellate record” is permissible in at least some circumstances. Snyder v. 

Louisiana, 552 U.S. 472, 483 (2008). And because we conclude 

that the substance of McClure and Payne’s comparison argument lacks merit as to Juror 13, we need not decide the waiver 

issue. See Brown, 809 F.3d at 374 n.1 (declining to address the 

government’s forfeiture argument when the defendant’s comparison argument lacked merit). 

Juror 13 answered that her son had been convicted of a 

drug charge. She also expressed that although she “had issues 

with the judge” in his case, she believed her son received a 

fair trial. McClure and Payne argue that if the government 

had truly wanted to strike jurors with relatives convicted of 

drug dealing, it would have moved to strike Juror 13 or at the 

very least, would have requested that the court ask follow-up 

questions about her son’s conviction and her competency to 

remain unbiased. But Juror 13, like Juror 34, did not specify 

what type of drug charge her son was convicted of. There was 

no mention of drug dealing. The comparative net that McClure 

and Payne ask us to cast is simply too broad. See Jamerson v. 

Runnels, 713 F.3d 1218, 1230 (9th Cir. 2013) (rejecting as too 

broad a Batson comparison based on the fact that accepted jurors also had relatives or knew people associated with a 

crime). This reasoning applies equally to Juror 62, whom 

McClure and Payne originally compared to Juror 39 below. 

Her answer did not indicate that her sister had been convicted 
Nos. 21-1521, 21-2618, & 21-2689 9

of drug dealing, but only that she pled guilty to a crime involving methamphetamine. 

In their reply brief, McClure and Payne also make a halfhearted comparison of Juror 39 to Juror 51, who answered 

that her future brother-in-law (before she met him) had been

convicted on a charge relating to shipping marijuana from Africa while serving in the Peace Corps in the 1970s. The defendants waived this argument by failing to even mention Juror 

51 in their opening brief. See United States v. Webster, 775 F.3d 

897, 904 (7th Cir. 2015) (noting that arguments not raised in a 

party’s opening brief are waived). So, we do not consider it 

further.

Lastly, McClure and Payne raise a broader argument 

about how the government should have asked follow-up 

questions to the jurors who responded that they had relatives 

with drug charges. Because it was the judge who conducted 

the voir dire, not the parties, we understand their argument 

to be that the prosecutor should have requested follow-up 

questioning to determine the nature of those charges. The 

government’s failure to ask the court to inquire further about 

potential jurors’ responses that supposedly motivated a peremptory strike can be evidence of pretext. Harris v. Hardy, 680 

F.3d 942, 962 (7th Cir. 2012) (citing Miller-El v. Dretke, 545 U.S. 

231, 246 (2005) (“The prosecution’s reason [for striking a juror] ... is not creditable in light of its failure to enquire about 

the matter.”)). But in this case, we cannot say that the judge 

clearly erred by failing to read into the absence of such a request. Jury selection moved quickly and neither party asked 

the court to conduct additional questioning. Nothing about 

the government’s silence in this situation suggests it had a discriminatory motive. See Brown, 809 F.3d at 375 (“The jury 
10 Nos. 21-1521, 21-2618, & 21-2689 

selection process moved quickly and neither counsel asked 

any questions. Thus, it appears likely that the government did 

not want to interrupt the flow of the proceeding, not that it 

was trying to deceive the court.”). And while follow-ups may 

have clarified some jurors’ answers, it would have been futile 

with others. For example, Juror 34 expressed that she had no 

further knowledge of the nature of her sister’s conviction. In 

her situation, further questioning would have been entirely 

unhelpful. See id. (concluding that since a potential juror’s answer was “clear enough on its face,” it was “unlikely that further questions would have changed the government’s impression”).

The focus of the pretext inquiry is on what the government 

actually knew at the time it struck the juror, and what it knew 

here was that Juror 39’s brother had a drug dealing conviction. To the district court, this sufficiently differentiated Juror 

39’s answerfrom those of other jurors, and the court adjudged 

the prosecutor’s demeanor to be sincere and genuine after

considering the totality of the circumstances. We accord the

court’s credibility determination great deference, and because 

the government’s reason for striking Juror 39—that his 

brother was convicted of drug dealing—was not “completely 

outlandish,” we have no basis to reverse. United States v. Jones, 

224 F.3d 621, 625 (7th Cir. 2000). 

B 

The government’s primary trial witness was Detective Jason Hart, who has more than twenty years of experience as a 

law enforcement officer in the Indianapolis area. In 2017, Detective Hart received a tip about the 700 block of Arnolda Avenue: drug dealing, robberies, violence, and intimidation 

were unfolding under the watch of Trice and his associates. 
Nos. 21-1521, 21-2618, & 21-2689 11

Detective Hart, who at the time was an ATF task force officer, 

took the information to the FBI, thus beginning the joint investigation that ultimately led to the federal prosecution of 

McClure and Payne. On appeal, McClure and Payne object to 

Detective Hart’s trial testimony on multiple fronts. We summarize Detective Hart’s testimony, and then address their objections.

1 

The government disclosed Detective Hart as both a fact 

and expert witness and called him to testify twice. On the first 

day of trial, Detective Hart initially testified as a fact witness

and told the jury about how the investigation into the 700 

block of Arnolda Avenue unfolded. The court then admitted 

him as an expert in drug trafficking, briefly explaining to the 

jury that he was being designated an expert based on his education, training, experience, or knowledge. Detective Hart 

then explained how drug deals are usually made, including 

how dealers use lookouts for security and are disinclined to 

deal with strangers. Next, the government notified the court 

that it intended to “ask questions of Detective Hart as a fact 

witness and no longer as an expert witness.” The judge responded “All right. Thank you.” Detective Hart went on to

describe the events of October 21, 2018, from his own personal 

observations. He told the jury that at 12:51 pm, Trice called 

McClure. The call was recorded, and the recording was 

played for the jury:

MCCLURE: Hello?

TRICE: How you what nasty?

MCCLURE: What’s happening?

TRICE: Chillin.
12 Nos. 21-1521, 21-2618, & 21-2689 

MCCLURE: Shit, I ain’t doin shit. Bout to come 

down that way in a minute. I’m about to take 

my girl to the library. Shit, what’s the, uhh, 

what’s the ticket?

TRICE: Two.

MCCLURE: Two?

TRICE: Yep.

MCCLURE: Alright. Uhh, I’m on my way from 

the crib. I’ll be down there in about like thirty 

minutes.

TRICE: Alright, just hit me up.

MCCLURE: Alright.

TRICE: Alright.

After the recording was played, Detective Hart explained that 

the phrase “what’s the ticket” was commonly used by Trice 

and his associates to refer to the price of drugs. Detective Hart 

explained that he believed there was about to be a drug transaction for $2,000 and got a team in place to surveil the area. 

Detective Hart narrated, based on his own observations, 

as surveillance footage from a telephone pole camera played 

for the jury: Trice drove his red Jeep to the 700 block of Arnolda Avenue. McClure and Payne arrived together in a silver 

Dodge and briefly met with Trice. Trice then drove to his 

apartment where he was suspected of storing large quantities 

of meth, briefly went inside, and drove back to the 700 block

of Arnolda Avenue. McClure entered the passenger seat of 

the red Jeep to speak with Trice. A moment later, McClure 

exited the Jeep and returned to the passenger seat of the silver 

Dodge with Payne. McClure and Payne drove away. 
Nos. 21-1521, 21-2618, & 21-2689 13

Surveillance footage ended there, but law enforcement followed them.

From his own memory, Detective Hart testified that Payne 

next dropped off McClure at a different vehicle. With limited 

resources, the officers let McClure elude them in favor of continuing to follow Payne. Detective Hart explained that surveilling officers believed—based on their prior observations—that McClure had brokered a deal for Payne and that 

Payne would be the one with drugs in his vehicle. Detective 

Hart instructed law enforcement to initiate a traffic stop on 

the Dodge that Payne was driving. Rather than stop, Payne 

led the officers on a high-speed chase.

Other government witnesses detailed what happened 

next. Trooper Ryan Kenworthy pursued Payne. He testified 

that, during the chase, he saw a white object fly out of the 

driver’s side window of the Dodge. Other officers located the 

white object—a sock containing 214.2 grams of methamphetamine. The chase ended when Payne collided with a median,

allowing officers to apprehend him.

On the second (and last) day of trial, Detective Hart was 

called to testify again. The government once again moved to 

offer him as an expert in drug trafficking. After no objection, 

the court admitted him and gave the following instruction to 

the jury: 

THE COURT: Ladies and gentlemen, remember 

that from time to time, based on a witness’s experience or knowledge or specialized training, 

that we allow them to give opinions on certain 

matters that they may not have specifically seen 

but, again, is based on this experience, expertise, 
14 Nos. 21-1521, 21-2618, & 21-2689 

and knowledge, training; and we allow them to 

give opinions on that. As you will be instructed 

and have been instructed, you’re entitled to give 

that whatever weight that you believe it deserves; but they are allowed to make their opinions, and I’m going to designate Agent Hart as 

requested in this case. Go ahead.

After asking just four brief questions eliciting testimony

about how much methamphetamine a user would typically 

purchase at a time, the government signaled that it no longer 

sought to offer expert testimony and would return to offering 

testimony based on Detective Hart’s personal observations. 

The judge clarified, “All right. So no more expert testimony at 

this time,” to which the government responded “Thank you, 

Your Honor.”

The government then introduced and played for the jury 

a jail call between Payne and McClure from the day after 

Payne’s arrest. The government occasionally paused the recording to question Detective Hart about what he understood 

certain terms to mean based on his knowledge acquired from 

the investigation. For example, when McClure asked Payne 

whether law enforcement took both of Payne’s “hitters,” Detective Hart explained that this was slang for phones. Payne 

expressed paranoia that he had been set up and asked 

McClure whether “the [guy] that washed the truck for me ... 

Is he one hundred?” Detective Hart explained that Payne was 

asking whether Trice was a turncoat. McClure responded 

with “you don’t’ [sic] know him from a can of paint,” which 

Detective Hart interpreted as McClure explaining that since 

Trice didn’t know Payne, there’s no way Trice could have set 

Payne up like that. Payne later told McClure that if he wanted 
Nos. 21-1521, 21-2618, & 21-2689 15

to “take [his] seat” while he was in jail, he would “put 

[McClure] all the way in.” Detective Hart explained that he 

understood Payne to be offering to put McClure in touch with 

his customers to keep up the business while Payne was in jail. 

2 

McClure and Payne raise three issues with respect to Detective Hart’s testimony. They argue: (1) the district court 

failed to follow the dual-testimony procedures established by 

this court in United States v. Jett, 908 F.3d 252, 267 (7th Cir. 

2018); (2) Detective Hart’s interpretations of the conversations 

in the two phone calls were inadmissible; and (3) Detective 

Hart impermissibly opined on the defendants’ guilt. We address each argument in turn.

i 

We start with Detective Hart’s dual-role testimony and the 

defendants’ assertion that the court failed to follow the guidance we set forth in Jett. Neither McClure’s nor Payne’s defense counsel objected at trial, so our review is only for plain 

error. Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). 

This standard requires the defendants to show: (1) an error; 

(2) that is plain; (3) that affected their substantial rights; (4) 

and that “seriously affects the fairness, integrity[,] or public 

reputation of judicial proceedings.” Id.

It is routine for a law enforcement officer to act as a dualrole witness, offering both lay and expert testimony. United 

States v. Parkhurst, 865 F.3d 509, 518 (7th Cir. 2017). But we 

have recognized that there are “inherent dangers” with this 

practice. Jett, 908 F.3d at 267. For example, jurors may “unduly credit the opinion testimony due to a perception that the 

expert was privy to facts about the defendant not presented 
16 Nos. 21-1521, 21-2618, & 21-2689 

at trial” or be unduly influenced “by an expert’s aura of special reliability.” Id. (cleaned up). In Jett, we held that district 

courts must take certain precautions to avoid admitting confusing dual-role testimony. Id. at 268. The goal is to help juries 

understand whether to evaluate the testimony based on the 

witness’s personal knowledge (under Federal Rule of Evidence 701) or based on the witness’s qualifications, training, 

and methods (under Federal Rule of Evidence 702). Id. We advised the district judge to first “encourage the government to 

present the expert and lay testimony separately.” Id. at 269. 

“[W]hen the expert portion of the case agent’s testimony begins, the district judge should allow the government to lay its 

foundation and establish the agent’s qualifications.” Id. Next, 

the judge “should instruct the jury that the testimony it is 

about to hear is the witness’s opinion based on training and 

experience, not firsthand knowledge, and that it is for the jury 

to determine how much weight, if any, to give that opinion.”

Id. at 269–70. And at the end of the trial, the judge should give 

an adequate jury instruction that reinforces the jury’s duty to 

weigh fact and expert testimony separately, under their applicable standards. Id. at 270. 

Defendants argue that the district court did not follow the 

guidance we provided in Jett perfectly at trial, but that is not 

the test for reversal. The court mostly adhered to Jett’s principles and crucially, the different types of testimony were presented separately. The government properly segmented Detective Hart’s expert testimony into two discrete portions of 

his direct examinations. The government also laid the appropriate foundation for his qualifications. Both times he testified 

as an expert, the court adequately delineated the expert testimony by instructing the jury that Detective Hart was about to 

testify as an expert and by signaling when that portion of the 
Nos. 21-1521, 21-2618, & 21-2689 17

examination had concluded. The court also explained that

when a witness gives an expert opinion, it is based on his expertise, knowledge, and training rather than personal observation. We recognize that the court could have more clearly 

articulated to the jury that Detective Hart’s expert opinions

were to be weighed separately from his fact testimony, and 

that the members of the jury were entitled to give those opinions however much weight they believed appropriate. But 

this shortcoming did not amount to plain error. And at the 

end of trial, the court gave a final jury instruction that all parties jointly submitted, agreed to, and do not challenge on appeal.

Even if there were errors under Jett that were plain (there 

weren’t), they did not affect the defendants’ substantial rights 

or “seriously affect[] the fairness, integrity[,] or public reputation of judicial proceedings.” Molina-Martinez, 578 U.S. at

194. Detective Hart’s testimony was corroborated by video 

surveillance, phone recordings, and physical evidence. As 

will be discussed below, the evidence of the defendants’ guilt 

was convincing, making any error harmless. See United States 

v. Cosby, 924 F.3d 329, 337 (7th Cir. 2019) (rejecting a plain error challenge under Jett). Accordingly, reversal based on the 

court’s instructions regarding Detective Hart’s dual-role testimony is not warranted. 

ii

McClure and Payne also object to Detective Hart’s testimony interpreting their phone calls. Because they preserved 

this argument by objecting at trial, we review for abuse of discretion. United States v. Hilliard, 851 F.3d 768, 779 (7th Cir. 

2017). As Detective Hart’s testimony was offered as a lay (or 

firsthand) witness, our analysis is guided by Federal Rule of 
18 Nos. 21-1521, 21-2618, & 21-2689 

Evidence 701. Under Rule 701, a lay opinion “is limited to one 

that is: (a) rationally based on the witness’s perception; 

(b) helpful to clearly understanding the witness’s testimony 

or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the 

scope of Rule 702.” Id. at 779–80. A law enforcement officer’s 

lay opinion is limited to his “observations or other facts derived exclusively from a particular investigation.” United 

States v. Malagon, 964 F.3d 657, 662 (7th Cir. 2020). 

McClure and Payne argue that there was insufficient foundation for Detective Hart to interpret McClure and Payne’s 

conversations because he was unfamiliar with either of them 

until October 21. They suggest that to offer a lay opinion interpreting these phone calls, Detective Hart must have previously investigated McClure and Payne individually, and that 

his knowledge acquired from the broader investigation is insufficient.

But this is not what Rule 701 requires. Even though Detective Hart had not specifically investigated McClure or Payne, 

his foundational knowledge still derived from the “particular 

investigation” into Trice’s drug operation. Id.; see also United 

States v. Rollins, 544 F.3d 820, 831–32 (7th Cir. 2008) (holding 

that the district court did not err in admitting an agent’s testimony interpreting drug code when the agent had extensive 

personal knowledge of the organization’s habits and how it 

operated). Detective Hart had been investigating Trice and 

his associates for months. He became intimately familiar with 

how the organization operated. He had listened to many intercepted phone calls and learned the lingo commonly used

when discussing drug transactions. For example, he testified 

that he had overheard the use of the term “ticket” about 40 
Nos. 21-1521, 21-2618, & 21-2689 19

times while monitoring phone calls throughout the investigation. The district court committed no error in allowing Detective Hart to draw from his extensive experience with the 

broader investigation into Trice’s drug trafficking organization when interpreting the words and behavior of its individual members.

We make one final observation about the testimony regarding Payne and McClure’s jail call. We have previously 

warned that officers should not interpret terms with which 

they are no more familiar than others. Jett, 908 F.3d at 266 

(“We caution, however, against conflating commonly used 

slang or vernacular with the code words of a criminal milieu.”). We can hardly say that phrases such as “tickets,” “hitters,” “jump-out boys,” or “memory card” would have otherwise been understood by the jury. Detective Hart’s interpretation of this coded language was thus proper. But some of 

his testimony interpreting ordinary slang such as “you don’t 

know him from a can of paint” and “I knew what it was” 

veered close to crossing the line into improper narration. Any 

such error in permitting this testimony was harmless, however, due to the strength of the government’s case. Accordingly, Detective Hart’s testimony interpreting the phone calls 

is not a basis for reversal. 

iii

McClure and Payne’s final evidentiary argument is that 

the district court improperly allowed Detective Hart to opine

on their guilt by describing their meeting as a drug 
20 Nos. 21-1521, 21-2618, & 21-2689 

transaction. They preserved this argument as well, so we review for abuse of discretion. Hilliard, 851 F.3d at 779. 

The relevant testimony came during McClure’s counsel’s 

cross-examination of Detective Hart, where she tried to cast

doubt on his perception of the events of October 21: 

Q: Sir, you testified that you were not physically 

present on Arnolda Avenue to witness a drug 

purchase, correct?

A: That is not -- I said I was not physically on 

Arnolda Avenue. I witnessed the transaction 

via the video.

DEFENSE COUNSEL: Judge, I would ask that 

that answer be stricken. It’s not answering the 

question.

THE COURT: I think it did. It’s overruled.

Q: So since you were not physically present on 

Arnolda Avenue on October 21st, 2018, you cannot tell these ladies and gentlemen that you actually physically witnessed that in person, correct?

A: That’s inaccurate. I think they witnessed it 

now. They watched the video.

Q: I’m sorry. Did you say the jurors witnessed 

it?

A: Ma’am, I’m confused. We all just watched the 

video of the narcotics transaction take place. 

That’s what 38 minutes of video was about. I’m 

confused by the question.
Nos. 21-1521, 21-2618, & 21-2689 21

It was defense counsel who was the first to describe what 

the jury saw as a drug transaction. Detective Hart accepted 

counsel’s framing to clarify a less than clear line of questioning. There was no error in permitting Detective Hart’s testimony, and even if there were, such an error would have been 

invited by defense counsel’s own questioning. This was 

hardly an example of a witness impermissibly giving an opinion “that would merely tell the jury what result to reach.” 

United States v. Brown, 871 F.3d 532, 539 (7th Cir. 2017) 

(cleaned up). Accordingly, the district court did not abuse its 

discretion in admitting this testimony.

C 

Finally, McClure and Payne argue that there was insufficient evidence for the jury to convict them. They preserved 

this argument below by moving for a judgment of acquittal. 

We view the evidence in the light most favorable to the government and ask “whether any rational trier of fact could 

have found the essential elements of the charged offense beyond a reasonable doubt.” United States v. Garcia, 919 F.3d 489, 

496 (7th Cir. 2019). We will “overturn the jury’s verdict only 

when the record contains no evidence, regardless of how it is 

weighed, from which the factfinder could find guilt beyond a 

reasonable doubt.” United States v. Faulkner, 885 F.3d 488, 492 

(7th Cir. 2018) (cleaned up). For a jury to convict McClure and 

Payne of possession with intent to distribute, the government

needed to prove that they (1) knowingly or intentionally possessed methamphetamine (2) with intent to distribute it 

(3) while knowing it was a controlled substance. See United 

States v. Irby, 558 F.3d 651, 654 (7th Cir. 2009). 

Despite McClure and Payne’s contentions, the government presented more than sufficient evidence to support their
22 Nos. 21-1521, 21-2618, & 21-2689 

convictions. First, the jury heard a recording of McClure 

speaking with Trice shortly before they met on Arnolda Avenue on October 21. Detective Hart spent months learning how 

Trice’s organization operated. The jury was entitled to give 

weight to his testimony that their language—specifically, the 

use of the phrase “what’s the ticket” and the response 

“two”—suggested that a drug transaction for $2,000 was imminent. Second, the jury watched video surveillance from October 21 corroborating Detective Hart’s interpretation. Footage showed Trice coming and going from his apartment between meetings on Arnolda Avenue, as law enforcement had 

observed during earlier drug deals. The jury watched video 

of McClure exit Payne’s car, briefly enter Trice’s car, and then 

return to Payne’s car. The jury also heard that this pattern of 

movement resembled other drug deals Trice had carried out. 

Third, multiple government witnesses testified that after 

dropping off McClure, Payne fled from police and threw a

white object out of the driver’s side window. This object 

turned out to be a sock containing 214.2 grams of methamphetamine, and the jury heard evidence that this was roughly 

40 times the amount consistent with personal use. Finally, the 

jury heard a recording of McClure and Payne’s jail phone call 

discussing the previous day’s events in language consistent 

with drug dealing. 

McClure and Payne cite cases in which we found the evidence insufficient to support drug convictions. See Garcia, 919 

F.3d at 504; Jones, 713 F.3d at 352. But the facts of those cases 

are far different from this case. Here, the evidence of 

McClure’s and Payne’s guilt was not just sufficient but overwhelming. A rational juror could certainly conclude that 

McClure brokered a deal with Trice for the purchase of methamphetamine on Payne’s behalf, and when Payne realized 
Nos. 21-1521, 21-2618, & 21-2689 23

law enforcement was following him, he threw the methamphetamine out of his car.

II

We next turn to Eric Bard’s sentencing challenge. Bard 

pleaded guilty to knowingly distributing 50 grams or more of 

methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). 

The district court calculated a Guidelines range of 262 to 327 

months, which Bard admits is correct. The district judge sentenced him to 262 months, a sentence Bard now calls unreasonable. Some of Bard’s arguments sound more like procedural rather than substantive challenges. Bard frames them all 

as substantive, however, and the government accepted this 

framing. We do as well, noting that we would affirm whether

these challenges are procedural or substantive.

When a defendant disputes the substantive reasonableness of a sentence, we review for abuse of discretion. United 

States v. Walsh, 47 F.4th 491, 496 (7th Cir. 2022) (citing Gall v. 

United States, 552 U.S. 38, 51 (2007)). “[W]e do not substitute 

our judgment for that of a district judge, who is better situated 

to make individualized sentencing decisions.” United States v. 

Daoud, 980 F.3d 581, 591 (7th Cir. 2020). A reasonable conclusion “that a different sentence was appropriate is insufficient 

to justify reversal[.]” Gall, 552 U.S. at 51. We will reverse only

if the “sentence falls outside the broad range of objectively 

reasonable sentences in the circumstances.” Daoud, 980 F.3d 

at 591 (cleaned up). A within-guidelines sentence is presumptively reasonable. United States v. Miller, 834 F.3d 737, 744 (7th 

Cir. 2016). Here, not only did Bard’s sentence fall within the 

Guidelines range, but it was at the absolute bottom of that 

range. Accordingly, he faces an uphill battle.
24 Nos. 21-1521, 21-2618, & 21-2689 

Bard contends that his Guidelines range was far greater 

than necessary to comply with the goals of 18 U.S.C. § 3553(a)

and that the district judge’s justification was inadequate. He 

argues that his minor past violations overstated his criminal 

history and had a distorting effect on his Guidelines range, 

which resulted in a sentence that is unfairly disproportionate 

to co-defendants who played a much bigger role in the drug 

operation. Bard also believes the district judge misconstrued 

his criminal history argument as one questioning the policy 

and concept of the career offender enhancement in general,

rather than one asking the court to consider that since he 

barely qualified for the enhancement, it should not drive his

ultimate sentence. Finally, he argues that due to his age and 

health conditions, he received nearly a life sentence. None of 

these arguments justifies reversal.

First, Bard’s criminal history was not overstated. Bard 

qualified as a career offender because of two prior felony convictions for controlled substance offenses. He also has a history of resisting arrest, domestic battery, and probation violations. It is true that were it not for the career offender enhancement, his Guidelines range would have been cut in half—

down to 130 to 162 months. But that is not the case here. The 

judge observed that Bard had received “multiple breaks” in 

the past and characterized his record as a “history of not getting the message[.]” Without the enhancement, he believed 

Bard’s “criminal history would [have] be[en] understated[.]” 

Second, Bard highlights the seeming disparity between his 

sentence and those of his co-defendants who were more culpable. For instance, Trice, the drug organization’s leader, only 

received 210 months, while Bard received 262 months for a 

single $1,200 transaction. But “only unwarranted disparities 
Nos. 21-1521, 21-2618, & 21-2689 25

are impermissible in sentencing.” United States v. Pape, 601 

F.3d 743, 750 (7th Cir. 2010). Disparate sentences can certainly 

be warranted even when a less culpable co-defendant receives 

a longer sentence. United States v. Solomon, 892 F.3d 273, 279 

(7th Cir. 2018). Here, the district judge acknowledged his responsibility under § 3553(a)(6) to avoid unwarranted disparities and did not need to engage in a lengthy comparison of 

Bard’s culpability with those of his co-defendants before imposing a within-Guidelines sentence. See Pape, 601 F.3d at 750. 

The simple fact is that Bard’s criminal history differentiated 

him from his co-defendants, which increased his Guidelines 

and justified his longer sentence.

Third, the judge clearly understood Bard’s argument to be 

about his own personal criminal history, rather than mistaking it for one about policy. The court did not consider it as a 

challenge to the career offender enhancement as a whole, but 

as applied to him. The court explained that Bard’s past runins with the law “have consequences” and that application of 

the enhancement was the appropriate consequence, even if he 

only narrowly qualified for it. 

Finally, though we by no means suggest that 262 months 

is insignificant, we are not persuaded by Bard’s argument that 

it is in effect a “nearly life sentence.” But Bard was only 34 at 

the time of sentencing and assuming he serves his full 262 

months, he will be in his mid-50’s at the time of release. As he 

has not presented sufficient evidence suggesting that he will 

not live out his sentence, we do not consider this argument 

further. See United States v. Wurzinger, 467 F.3d 649, 652 (7th 

Cir. 2006); United States v. Patrick, 707 F.3d 815, 820 (7th Cir. 

2013). 
26 Nos. 21-1521, 21-2618, & 21-2689 

At bottom, Bard believes his sentence is just too long. The 

district court correctly calculated the Guidelines, considered 

all the relevant statutory factors and principal arguments in 

mitigation, and explained its reasoning before imposing a bottom-of-the-Guidelines sentence. The district judge explained 

that although he believed a sentence in the middle or upper 

end of the Guidelines range would be appropriate, he would 

“show some leniency” and sentenced Bard to the very bottom 

of the Guidelines range. Far from an abuse of discretion, the 

district court gave thoughtful consideration to Bard’s arguments. It simply disagreed with them, as do we.

AFFIRMED