## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-3201 and 06-3250

U NITED S TATES OF A MERICA , Plaintiff-Appellee,

v.

A NTHONY G ILMER and J AMAR B AILEY , Defendants-Appellants.

____________ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 05 CR 8— Milton I. Shadur

, Judge.

____________
A RGUED M AY 7, 2008—D ECIDED J ULY 18, 2008

____________

Before B AUER, P OSNER and W ILLIAMS , Circuit Judges

.
B AUER, Circuit Judge . Anthony Gilmer and Jamar Bailey were indicted on two counts of conspiracy and drug possession charges in March 2005. Following a bench trial, the district court found Gilmer and Bailey guilty
and sentenced them to 57 mo nths’ and 100 months’ imprisonment respectively. On appeal, both raise several challenges to their convictions. For the following reasons,
we affirm.2 Nos. 06-3201 and 06-3250

I. BACKGROUND

In December of 2004, a confidential informant reached out to Untavious Davenport to see if he had a kilogram of heroin to sell. On December 21, an undercover DEA agent met with Davenport an d the informant to negotiate the sale. Davenport agreed to sell the undercover agent the kilo for $102,000; a week later, Davenport asked his friend Cleon Wilson about obtaining a kilo of heroin. Wilson located a supplier named Jamar Bailey—a friend of
Wilson’s—and informed Dave nport of the connection.
On January 3, 2005, while DEA agents conducted surveillance, the informant picked up Davenport in a black Escalade and drove to a parking lot of Cermak Mall in Chicago, where they were joined by the undercover agent to wait for the drugs. After Davenport spoke with Wilson on the telephone, he and the informant drove to
Wilson’s house to check on th e status of the heroin. Baileyarrived a short time later, and Wilson introduced Davenport to Bailey. Bailey told Wilson he would get the kilo
of heroin from “out we st” and left the house.

Wilson, Davenport, and the informant left Wilson’s house around 5:00 p.m. Later, Bailey called Wilson and
told him that he had the kilo of heroin and that Wilson
should meet him to consumma te the deal. They agreed to meet at a laundromat parkin g lot at Cermak and Cicero Avenues. The Escalade parked across the street from the laundromat in an Aldi’s parking lot.
Meanwhile, Bailey had called Gilmer looking for a kilogram of heroin, and Gilmer told Bailey that hewould broker the deal. Gilmer approached Romeal Williams, an acquaintance who had supplied heroin to Gilmer in the past, to see if he could supply one quarterNos. 06-3201 and 06-3250 3

to one half kilogram of hero in. Williams called his source, but only asked for 100 grams because he did not trust Gilmer. Williams obtained (what he thought was) 100 grams of heroin and called Gilmer. Gilmer told Williams
to meet at the street corn er of Jackson and Kostner; when Williams arrived, Gilmer and Bailey were waiting.
As the three rode around in Williams’ white Chevrolet Lumina, Williams showed the drugs to Gilmer. When the two vehicles arrived at Aldi’s, Gilmer told Bailey totell the occupants in the Escalade to meet them at a nearby Citgo station. Bailey got out of the Lumina and into the Escalade, with Wilson, Da venport, and the informant, and he relayed the information to rendezvous at the Citgo.

Once both vehicles arrived at the Citgo, the informant walked over to the Lumina and got inside. Williams handed him the heroin, but the informant noticed the package was not a kilogram as requested. He asked Williams whether it was a sample and handed the heroin back to Williams. At that time, DEA agents approached
the Lumina and identified themselves. Davenport, Wilson and Bailey were immediately arrested; Gilmer and Williams ran but were promptly apprehended by the agents. At the time of his arrest, Williams possessed one bag containing two smaller bags of heroin and cocaine
base.
Bailey, Gilmer, Williams, Davenport, and Wilson were each indicted on one count of conspiracy to possess with intent to distribute at least 100 grams of mixtures containing heroin, in viol ation of 21 U.S.C. § 846, andone count of possession with intent to distribute approximately 83 grams of mixtures containing heroin and 13.3 grams of mixtures containi ng cocaine base, in violation of 21 U.S.C. § 841 (a)(1). Williams, Davenport and4 Nos. 06-3201 and 06-3250

Wilson pleaded guilty to the co nspiracy count and testifiedagainst Gilmer and Bailey at trial. Other evidence introduced at trial included records of phone calls made between Wilson and Bailey, and between Bailey and Gilmer; testimony from se veral DEA agents who conducted surveillance on that day; and Bailey and Gilmer’s post-arrest statemen ts, in which both defendants acknowledged that one kilo gram of heroin was to be purchased. Bailey stated that Wilson knew someone who wanted a kilo, and that he “was along for the ride to make $200.” Gilmer told the agents that Bailey called him looking to buy a kilo of heroin, and that he was the middleman who introduced Williams and Bailey.

The district court found Baile y and Gilmer guilty of bothcounts on January 10, 2006. The court credited the testimony of the DEA agents, as well as the testimony of the cooperating co-conspirators (with the exception of their conflicting testimony about the timing of events that day). The court also considered Bailey’s post-arrest admissions only as to Bailey, and not to Gilmer, so as to avoid a

Bruton problem. In finding that Bailey and Gilmerwere guilty of the conspiracy charge, the court specifically held that Gilmer ’s conduct was inconsistent with mere presence at the scene of the conspiracy, finding that his actions and his admissions established him as a co-conspirator. As for the possession charge, the court found both defendants guilty under the Pinkerton theory of liability. The court analogized the conspiracy to a chain, each conspirator representing a linkin a chain, with each link knowing at least one co-conspirator, but not always more than one. The court discussed Gilmer’s role as the link between Bailey and Williams, and that Williams’s testimony linked him toNos. 06-3201 and 06-3250 5

the chain of the conspiracy. During sentencing, the court found that although Williams believed he was selling 100 grams of heroin, that belief did not equate to an agreement under the cons piracy theory. The court
said that it would consider the 83.3 grams of heroin for sentencing purposes, but not the 13.3 grams of crackcocaine, because there was no evidence that any co-conspirator had agreed to or contemplated the purchase ofcrack. Bailey and Gilmer each filed motions for judgment of acquittal, which the court denied on February 7, 2006. These timely appeals followed.

II. DISCUSSION
Gilmer and Bailey challenge the denial of their post-trial motions, arguing that the evidence presented at trial wasinsufficient to convict either of them on charges of conspiracy to distribute drugs. They also believe that the government failed to prove the quantity of drugs alleged in their indictments. Additionally, Gilmer argues that the government violated the Speedy Trial Act, and that the district court erred in admitting evidence of his prior uncharged criminal activity. We address each contention
in turn.
First, Gilmer and Bailey argue that the government presented insufficient evidence to support their convictions, and that the district court should have granted their motions for judgment of acquittal. In asserting insufficiency of the evidence, a defendant carries a heavy burden. A court of appe als does not stand in judgment of the credibility of witn esses; rather that question
is left to the sound discretion of the trier of fact.
To support a conviction fo r conspiracy, the government is required to prove that“two or more people agreed6 Nos. 06-3201 and 06-3250

to commit an unlawful act and the defendant knowingly and intentionally joined in that agreement.” United States

v. Duran , 407 F.3d 828, 835 (7th Cir. 2005) (citation omitted).Gilmer argues the government failed to prove an agreement between himself and the co-conspirators. Specifically, Gilmer maintains th at he had not previously sold drugs with (or to) any of them, that he only knew one of the co-conspirators (Williams), and there was no
consensus as to how the deal was to go down.

A defining characteristic of a conspiracy is a common agreement “to further a single design or purpose.” United
States v. Thomas , 520 F.3d 729, 733 (7th Cir. 2008). “The agreement need not be form al, and the government may establish that agreement, as it may other elements of the charge, through circumstantial evidence.” United States v. Taylor, 116 F.3d 269, 271 (7th Cir. 1997) (citation omitted). The government must prove an understanding—explicit or implicit—among co-conspir ators to work together to
commit the offense. United States v. Curtis , 324 F.3d 501, 505 (7th Cir. 2003).
The district court accurately characterized this conspiracy as links in a chain. Within the span of a few hours, Davenport called Wilson and informed him that he needed a kilo for a buyer. Wilson in turn contacted Bailey, and Bailey proceeded to arrange the transaction. Bailey called Gilmer, and Gilmer called Williams, who was able to provide the drugs. The fact that Gilmer only knew Williams hardly supports his belief that he was not in an agreement with the other conspirators, for “[a] conspiracy does not need discussions between all parties—this is a classic links-in-a-chain conspiracy,with [the defendant] assisting [a co-conspirator] in distributing drugs down the chain .” United States v. Johnson

,Nos. 06-3201 and 06-3250 7

137 F.3d 970, 973-74 (7th Cir. 1998); see also United States v.
Price , 258 F.3d 539, 545 (6th Cir. 2001) (finding that it is sufficient in a “drug-chain conspiracy” to show that each member of the conspiracy realized that he was participating in a joint venture, even if he did not know the identity of every other member, or was not involved
in all of the activities in furtherance of the conspiracy).
In viewing the evidence in the light most favorable to the government, we find that Gilmer was in agreement with the other conspirators to further a single purpose— the distribution of heroin. Williams’s testimony was particularly damning; he te stified that he had supplied heroin to Gilmer in the past , and that Gilmer called him on the afternoon of January 3rd and asked him if he could get a hold of some “dope” for a cousin of Gilmer’s friend. Williams obtained the heroin, or what he believed was heroin (it turned out to cont ain heroin and crack cocaine),
and Gilmer directed Williams to pick him and Bailey up. As they were driving around, Gilmer asked if Williams had the drugs, and Williams handed them over to Gilmer for inspection. When they arrived at the designated meeting spot, Williams testified that Gilmer directed Bailey to tell the other conspirators in the Escalade to meet at the Citgo (within the city limits) to make the deal,
because Gilmer did not “want to deal with the Cicero police.”

Other evidence included G ilmer’s post-arrest statements (corroborated by the testimony of a DEA agent), in
which he admitted that he acted as “the middleman” between Bailey and Williams for the procurement of one kilogram of heroin. He stated that when he received a phone call from Bailey, who was looking for heroin, he put him on the phone with Williams to “work out the8 Nos. 06-3201 and 06-3250

details.” The three of them met an hour later, and Gilmer stated that he was present for the discussion about how the deal would play out. Gilmer drove to the scene for the deal, and after Bailey got out of the car, Gilmer switched the meeting place when he saw a police car in the area. After conferring with Bailey on the phone, he went to the Citgo gas station so they “could do the deal with the guy.” When Gilmer saw the police, he ran to avoid getting arrested. See United States v. Moore , 521 F.3d 681, 685 (7th Cir. 2008) (reasoning that evidence of a conspirator “hightailing” it ou t of a pre-arranged meeting place for a drug deal “bespe aks of guilty knowledge.”).
There is ample evidence that there was a conspiracy and that Gilmer was a knowing member of it. Gilmerknew Bailey was a drug dealer and assisted him in distributing drugs to at least one dealer farther down thechain of distribution, namely Wilson. There were sixteen telephone calls between Bailey and Gilmer on the afternoon of January 3rd, and these calls immediately preceeded or followed conversations between Bailey and Wilson, Wilson and Davenport, and Davenport and
the informant. Gilmer was at the scene where the deal was to take place. Gilmer’s belief that the conspirators
lacked a “consensus” on how the deal was to be made lends no support to his cause. See United States v. Zarnes

, 33 F.3d 1454, 1466 (7th Cir. 1995) (“A conspirator need not be overly involved with other conspirators, or beaware of the details of the conspiracy, to be held responsible for the acts of the conspiracy.”). Gilmer argues that
there was no evidence to show he had a financial stake in the transaction, however the government need only prove that Gilmer joined an agreement to distribute the drugs. See United States v. Larkins , 83 F.3d 162, 167 (7th Cir.Nos. 06-3201 and 06-3250 9

1996) (rejecting the argument that a defendant is not a conspirator unless the government establishes that he
has a financial stake in the overall distribution of the drugs). Because sufficient evidence existed to prove
Gilmer’s involvement withthe conspiracy, Gilmer’sargument that he cannot be liable for offenses committed by his co-conspirators under Pinkerton necessarily
fails. See Curtis , 324 F.3d at 506.

We now turn to Bailey’s challenge to the sufficiency ofthe evidence against him. Bailey believes that his statements, at most, reveal that he knew about the transaction and was present for the preceding events, and mere knowledge and presence cannot prove an agreement to participate in a conspiracy.
While it is true that pres ence alone is not enough to convict, a single act will suffi ce if the circumstances permit the inference that the presen ce or act was intended to advance the ends of the conspiracy. United States v. Macedo

, 406 F.3d 778, 792 (7th Cir. 2005) (citing United States v.
Gutierrez , 978 F.2d 1463, 1469 (7th Cir. 1992)). “[O]ne need not be at the heart of the conspiracy to be part of its
web.” Curtis , 324 F.3d at 506 (citat ion omitted). A conspiracy may be shown by evidence which shows that the co-conspirators embraced the criminal objective of the conspiracy, that the conspiracy continued towardsits common goal, and that there were co-operative relationships. United States v. Messino , 382 F.3d 704, 709 (7th Cir. 2004) (internal citations omitted); United States
v. Starks , 309 F.3d 1017, 1024 (7th Cir. 2002) (citing
United States v. Staten , 581 F.2d 878, 883-85 & n. 60 (D.C. Cir. 1978) (“[T]he critical inquiry for judges is whether the factfinder can reasonably conclude from the proof that the accused likely had some appreciable ability to guide the destiny of the drug.”)).10 Nos. 06-3201 and 06-3250

Bailey cites our holding in United States v. Baker , 499 F.2d 845, 848 (7th Cir. 1974) to support his propositionthat Bailey was simply “along for the ride,” but his argument misses the mark. Bakerheld that criminal participation cannot be drawn merely from presence; a culpable purpose is essential. In Baker , testimony revealed
that one co-defendant drove a car that one conspirator rode in, engaged only in “small talk” at the location where the drug transactions took place, and did not participate in any conversations about drug dealing. In reversing the co-defendant’s conspiracy conviction, weheld that where a single act of driving a car that a conspirator rode in, without more, was insufficient evidence to infer intent to participat e or associate with a conspiracy. See499 F.2d at 847-49.

Plenty of evidence linked Ba iley to the conspiracy. Bailey was more than simply a driver of the car or an observer at the site of the transaction. The government’s evidence demonstrated that Bailey served as an intermediary in the conspiracy, bridging the divide between a willing buyer and seller by recruiting Gilmer to perform the
critical function of obtaining the heroin. See United States
v. Rock, 370 F.3d 712, 714 (7th Cir. 2004) (reasoning that when defendants are on the same side of a sale of drugsto a third party, there is sufficient evidence of a conspiracy). Bailey was in contact wi th Wilson throughout the day on his cell phone, arranging the deal. Twenty-seven calls were made between Bailey and Wilson that day. Along with Bailey’s own admissions in his post-arrest statements (during which he confirmed that Wilson told him he needed help finding some heroin because he knew someone who wanted “a key”), the district court credited his co-conspirators’s testimony that Bailey was involved in the conspira cy. Wilson testified that heNos. 06-3201 and 06-3250 11

asked Bailey to get a kilogram of heroin for a friend, and Bailey promptly got on his cell phone. Later, Bailey came over to Wilson’s house and told him he would get the kilo, and that he would let Wilson know when it was ready. Wilson stated that at one point, he and Bailey could not decide on a proper meeting place, and that when they ended the phone conversation, it seemed like the deal was off. But Bailey called Wilson back and told him that they needed the money and the deal should happen. Bailey and Gilmer drove to meet Williams, who showed Gilmer the drugs in the car while Bailey was present. Davenport stated that when Bailey got into the Escalade at Aldi’s, Bailey questioned him about whether his people were the police, and asked about money. Both Davenport and Wilson testified that Bailey told them he wanted to leave the Aldi’s parking lot because there were too many police in the area.
We decline to find that Bailey was simply “along for the ride,” for common sense di ctates that drug dealers want to minimize contacts throughout a conspiracy, therefore it is unlikely for i nnocent parties to be present at drug deals. See United States v. Garcia , 439 F.3d 363, 367 (7th Cir. 2006); Starks , 309 F.3d at 1023 (holding that the factfinder may infer that it runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes) (quoting United States v. Batista-Polanco , 927 F.2d 14, 18 (1st Cir. 1991)). We believe that there was sufficient evidence, beyond a reasonable doubt, that Gilmer and Bailey conspired with each other and with their fellow co-conspirator s to distribute heroin.
Next, Gilmer and Bailey argue that because the government indicted the defendan ts for conspiracy to distribute at least 100 grams ofheroin, they could only be12 Nos. 06-3201 and 06-3250

convicted on that count if the court determined that the conspiracy involved an amount greater than 100 grams. Drug quantity is not an element of the charged offense
in the indictment. United States v. Abdulahi

, 523 F.3d 757, 760 (7th Cir. 2008); United States v. Thomas , 328 F.3d 305, 309 (7th Cir. 2003) (holding thatApprendidoes not make drug quantity an “element” of the offense under 21 U.S.C. § 841)

. Quantity of drugs sold or possessed goes to the severity of the sentence, no t the existence of the crime. United States v. Lechuga , 994 F.2d 346, 348 (7th Cir. 1993).

Defendants also argue that, under Apprendi v. New Jersey

, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),when a certain amount of drugs would increase a defendant’s sentence above the statutory maximum, the quantity of drugs constitutes an essential element to a drug conspiracy offense that must be charged in the indictment and proved beyond a reasonable doubt. After Apprendi, any fact that increases the statutory maximum sentence must be proven to a jury beyond a reasonable doubt or admitted by the defendant. Abdulahi

, 523 F.3d at 760. “But when a judge imposes a sentence below the statutory maximum, he may do so based on facts found by a preponderance of the evidence.” Id.
The government’s sting was intended to bust a deal to distribute one kilogram of heroin, but as more and more players became involved, what began as a deal for one kilo of heroin ended with a deal of a substantially lesser amount (83.3 grams of heroin and 13.3 grams of cocaine). The district court, recognizing the distinction between the amount charged in the indictment (at least 100 grams of heroin) and the amount actually possessed,
held that it would consider the lesser amount for sentencing purposes, and sentenced both defendants underNos. 06-3201 and 06-3250 13

21 U.S.C. § 841(b)(1)(C), wh ich holds a maximum statutory penalty of twenty years. After a very thorough discussion of the factors listed in 18 U.S.C. § 3553(a), the court sentenced Gilmer to 57 months and Bailey to 100 months’ imprisonment for ea ch count, to run concurrently. Apprendihas no application to cases where the sentence is below the statutory maximum. See Abdulahi

, 523 F.3d at 760

. The district court correctly applied the preponderance of the evidence standard in determining the amount of drugs invo lved in the conspiracy. See
United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006) (citing Bookerfor its conclusion that “judges may continue to make findings based on preponderance of the evidence, provided that they do not treat the Sentencing Guidelines as ‘laws’ with binding effect.”).
Next, Gilmer argues that the district court erred in failing to dismiss his indictment as untimely under the Speedy Trial Act, 18 U.S.C. § 3161(b). Gilmer was arrested on January 3, 2005, and indicted on March 3, 2005, which Gilmer argues is well outsid e the Act’s mandate that an indictment must be filed within 30 days of an arrest.
Gilmer fails to consider an unopposed motion for an extension of time to and including March 4, 2005, filed by the government on January 19, which stated that the government needed more ti me to issue subpoenas for phone records, as well as to speak to other co-defendants who expressed interest in cooperating with its case. The district court made explicit findings to support the ends of justice continuance, statin g that “the ends of justice served by this extension outweigh the best interests of the defendants and the public in a speedy trial . . . in light of the evidence that is important to this case . . . [and because] some of the defend ants may seek to cooperate14 Nos. 06-3201 and 06-3250

1 Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Under Rule 404(b), “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be (continued...) with the government prior to indictment,” which the Act allows for. Accordingly, the district court did not abuse its discretion nor did Gilmer suffer actual prejudice when the court granted a continuance under the Act.
Finally, Gilmer argues thatthe district court erred in admitting Williams’ testimony about his prior drug trafficking activity with Gilmer because (1) the evidence was not intricately related to the charged conspiracy, and (2) the testimony was far more prejudicial than probative. The district cour t found that Gilmer’s prior drug deals with Williams were relevant and admissible because the prior deals were inextricably intertwined to the charged offense. We review that decision for an abuse of discretion, United States v. Price , 516 F.3d 597, 603(7th Cir. 2008), and conclude that the evidence was properly admitted.
Evidence of uncharged criminal activity is admissible if it is “intricately related to the facts of the case before the
court.” United States v. Ward , 211 F.3d 356, 362 (7th Cir. 2000) (internal quotations omitted). The admissibility of such evidence is limited onlyby Fed. R. Evid. 403 and is not subject to the limiting requ irements of Fed. R. Evid. 404(b). 1 Id. ; United States v. Ramirez , 45 F.3d 1096, 1102 (7thNos. 06-3201 and 06-3250 15

1 (...continued) admissible for other purposes, su ch as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistak e or accident.” Cir. 1995) (finding that cases applying the “intricatelyrelated” doctrine have recognized that evidence concerning the chronological unfolding of events that led to an indictment, or other ci rcumstances surrounding the crime, is not evidence of “o ther acts” within the meaning of Rule 404(b)). “Acts satisfy the inextricably intertwined doctrine if they complete the story of the crime on trial;their absence would create a chronological or conceptual void in the story of the crime; or they are so
blended or connected that they incidentally involve, explain the circumstances surrounding, or tend to prove any element of, the charged crime.” United States v. Senffner , 280 F.3d 755, 764 (7th Cir. 2000).

The prior drug deals explain the development of the relationship between Gilmer and Williams that led to their roles in the conspira cy. The earlier transactions explained how Williams and Gilmer met, and how, over time, Williams supplied heroin to Gilmer when he
asked for it. As the district co urt put it, “why [else] would Gilmer come to Williams with a question as to whether he could obtain a quarter to a half kilo of heroin?” We have held in similar situations that testimony about prior uncharged criminal activity was intricately related to the charged conspiracy because it showed how the witness’s relationship with a defendant “began, its basis, and structure, and how the relationship blossomed into the charged conspiracy.” See Ward , 211 F.3d at 362 (holding that testimony from cooperating witnesses about16 Nos. 06-3201 and 06-3250

their prior drug transactions with a defendant was intricately related to the facts of the charged drug conspiracy charges); Zarnes , 33 F.3d at 1469 (holding that evidence of drug transact ions completed before conspiracy began was intricately related to conspiracy case because it showed how the relationship between the parties began and unfolded in to the charged conspiracy). Moreover, in a bench trial, we assume that the district court was not influenced by evidence improperly brought before it unless there is evidence to the contrary.

III. CONCLUSION
For the foregoing reasons, the convictions of Anthony Gilmer and Jamar Bailey are A FFIRMED

.

USCA-02-C-0072—7-18-08