In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 06-3201 and 06-3250

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY GILMER and JAMAR BAILEY,

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.

____________

ARGUED MAY 7, 2008—DECIDED JULY 18, 2008

____________

Before BAUER, POSNER and WILLIAMS, Circuit Judges.

BAUER, 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 months’ 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 and 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 Davenport 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 the status of the heroin. Bailey

arrived a short time later, and Wilson introduced Davenport to Bailey. Bailey told Wilson he would get the kilo

of heroin from “out west” 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 consummate the deal. They agreed to

meet at a laundromat parking 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 he

would 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 quarter
Nos. 06-3201 and 06-3250 3

to one half kilogram of heroin. 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 corner 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 to

tell 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, Davenport, 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 violation of 21 U.S.C. § 846, and

one count of possession with intent to distribute approximately 83 grams of mixtures containing heroin and

13.3 grams of mixtures containing cocaine base, in violation of 21 U.S.C. § 841 (a)(1). Williams, Davenport and
4 Nos. 06-3201 and 06-3250

Wilson pleaded guilty to the conspiracy count and testified

against 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 several DEA agents who conducted surveillance on that day; and Bailey and

Gilmer’s post-arrest statements, in which both defendants

acknowledged that one kilogram 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 Bailey and Gilmer guilty of both

counts 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 Gilmer

were 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 link

in 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 to
Nos. 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 conspiracy theory. The court

said that it would consider the 83.3 grams of heroin for

sentencing purposes, but not the 13.3 grams of crack

cocaine, because there was no evidence that any co-conspirator had agreed to or contemplated the purchase of

crack. 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 was

insufficient 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 appeals does not stand in judgment of the credibility of witnesses; rather that question

is left to the sound discretion of the trier of fact.

To support a conviction for conspiracy, the government is required to prove that “two or more people agreed
6 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 that 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 formal, 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-conspirators 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 testified 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 contain 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 Gilmer’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 the
8 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 out of a pre-arranged meeting

place for a drug deal “bespeaks of guilty knowledge.”).

There is ample evidence that there was a conspiracy

and that Gilmer was a knowing member of it. Gilmer

knew Bailey was a drug dealer and assisted him in distributing drugs to at least one dealer farther down the

chain 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 be

aware 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 with the conspiracy, Gilmer’s

argument 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 of

the 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 presence alone is not enough to

convict, a single act will suffice if the circumstances permit

the inference that the presence 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 (citation 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 towards

its 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 proposition

that Bailey was simply “along for the ride,” but his argument misses the mark. Baker held 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, we

held that where a single act of driving a car that a conspirator rode in, without more, was insufficient evidence

to infer intent to participate or associate with a conspiracy. See 499 F.2d at 847-49.

Plenty of evidence linked Bailey 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 drugs

to a third party, there is sufficient evidence of a conspiracy). Bailey was in contact with 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 conspiracy. Wilson testified that he
Nos. 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 dictates that drug dealers

want to minimize contacts throughout a conspiracy,

therefore it is unlikely for innocent 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-conspirators to distribute heroin.

Next, Gilmer and Bailey argue that because the government indicted the defendants for conspiracy to distribute at least 100 grams of heroin, they could only be
12 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 that Apprendi does 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, not 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 under
Nos. 06-3201 and 06-3250 13

21 U.S.C. § 841(b)(1)(C), which 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 each count, to run concurrently. Apprendi has 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 involved in the conspiracy. See

United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006)

(citing Booker for 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 outside 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 time 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, stating 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 defendants may seek to cooperate
14 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 that the 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 court 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 only by Fed. R. Evid. 403 and is

not subject to the limiting requirements of Fed. R. Evid.

404(b).1 Id.; United States v. Ramirez, 45 F.3d 1096, 1102 (7th
Nos. 06-3201 and 06-3250 15

1 (...continued)

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”

Cir. 1995) (finding that cases applying the “intricately

related” doctrine have recognized that evidence concerning the chronological unfolding of events that led to

an indictment, or other circumstances surrounding the

crime, is not evidence of “other 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 conspiracy. 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 court 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 about
16 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 transactions completed before conspiracy began was intricately related to conspiracy case

because it showed how the relationship between the

parties began and unfolded into 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 AFFIRMED.

USCA-02-C-0072—7-18-08