In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 04-1176, 04-1177, 04-1231 & 04-2009

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ZACHARY JENKINS, MERLIN COLEMAN,

KEVIN REED and ANTOINE HILL,

Defendants-Appellants.

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Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 CR 236—Elaine E. Bucklo, Judge.

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ARGUED APRIL 13, 2005—DECIDED AUGUST 16, 2005

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Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. The FBI and the Joliet Police

Department, together with several other agencies, conducted a narcotics investigation into a drug ring operating

in Joliet, Illinois. As a result of the investigation, Kevin

Reed, Zachary Jenkins, Merlin Coleman, and Antoine Hill

were charged with, among other things, conspiracy to distribute and to possess with intent to distribute in excess of

five kilograms of cocaine and in excess of 50 grams of
2 Nos. 04-1176, 04-1177, 04-1231 & 04-2009

cocaine base. Reed, who was the central figure in the conspiracy, pleaded guilty to the conspiracy charge and was

sentenced to 360 months in prison. Hill was convicted of

conspiracy and two counts of using a telephone to facilitate

the conspiracy, but was acquitted of a substantive count of

possession with the intent to distribute in excess of

500 grams of cocaine. Jenkins was convicted of conspiracy,

four counts of using a telephone to facilitate the conspiracy,

and the substantive counts of distribution of cocaine and

possession with the intent to distribute crack cocaine.

Coleman was convicted of conspiracy, three counts of using

a telephone to facilitate the conspiracy, and a substantive

count of possession with the intent to distribute crack cocaine. Hill was sentenced to 360 months in prison, Jenkins

to 135 months in prison, and Coleman to 240 months in

prison. Hill appeals both his conviction and sentence,

Jenkins and Coleman appeal their convictions, and Reed

appeals his sentence.

I. Background

Kevin Reed was a large-scale cocaine dealer in Joliet,

Illinois. Jenkins and Coleman were two of Reed’s suppliers.

Hill collected drug proceeds for Reed and also attempted to

intimidate a potential witness against Reed. Several courtauthorized wiretaps, including one on Reed’s cellular phone,

allowed the government to monitor the activities of the drug

ring. On December 27, 2000, the government executed a

search warrant and seized 1,691 grams of crack cocaine

from the home of Reed’s girlfriend, Wendy Whennen.

Another search on August 3, 2001, resulted in a seizure of

over 18 grams of crack cocaine from the home of Jenkins’

girlfriend, Diedre Keys. Keys told police that the crack

belonged to Jenkins, and Jenkins later admitted to police

that the drugs were his.
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 3

In March 2002, the FBI busted the drug ring. Reed was

arrested on March 13 and agreed to cooperate with authorities. Part of his cooperation was identifying a person who

was overheard on the wiretaps as Coleman and taking

police to Coleman’s house in order to arrest him. Jenkins

was also arrested and admitted to supplying Reed with

cocaine.

Reed entered a plea of guilty to the conspiracy count on

December 11, 2002. He eventually testified before the grand

jury, but later claimed that his grand jury testimony was

false. Reed did not testify at the trial of the other co-defendants. On two occasions the government, without objection from Reed, filed motions to continue Reed’s sentencing

so it could determine its sentencing position with respect to

his level of cooperation and assistance. Ultimately, the

government decided not to make a motion for downward

departure based on substantial assistance. Reed then filed

a motion for specific performance, claiming that the government promised that it would move for a downward departure of his sentence. The district court found that the

government did not make any such promise and sentenced

Reed to 360 months in prison.

Jenkins, Coleman, and Hill were tried before a jury in

July 2003. The government played 280 recorded telephone

calls that detailed the defendants’ extensive involvement in

the drug trade. Jenkins and Coleman were recorded discussing supplying cocaine to Reed, and Hill discussed his

role as an enforcer on behalf of the conspiracy, including

intimidating Reed’s girlfriend, who was a potential witness

for the prosecution. In addition to the recorded phone calls,

the prosecution called several of Reed’s associates to testify

about their involvement in buying cocaine from Reed and

reselling it. Jenkins and Coleman were convicted on all

counts, and Hill was convicted on the conspiracy and

telephone counts.
4 Nos. 04-1176, 04-1177, 04-1231 & 04-2009

II. Discussion

A. Joint Issues

The defendants (other than Reed) jointly challenge: (1)

the sufficiency of the evidence leading to their convictions

on the conspiracy count; (2) the district court’s refusal to

instruct the jury with regard to multiple conspiracies and

buyer/seller relationships; and (3) the admissibility of the

tape recorded calls from Reed’s telephone.

First, defendants argue that the evidence was insufficient

to support their convictions for conspiracy. In a challenge to

the sufficiency of the evidence, we view the evidence and all

reasonable inferences in the light most favorable to the

prosecution and will reverse only if no rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt. United States v. Pree, 408 F.3d 855, 865

(7th Cir. 2005). This is a difficult burden, which the defendants do not carry.

The government presented substantial evidence in the

form of recorded phone calls and eyewitness testimony

which depicted a long-term drug distribution network involving Reed, Jenkins, Coleman, and Hill. The evidence

showed that the defendants repeatedly discussed the possession and distribution of cocaine. Reed often spoke with

Jenkins and Coleman about his customers, and Jenkins and

Coleman spoke with Reed about their sources and also

occasionally fronted cocaine to Reed. The telephone calls

revealed Hill’s relationship to Reed as an enforcer and

detailed how he protected the conspiracy by intimidating

potential prosecution witness Wendy Whennen. A rational

jury could have found the defendants guilty of conspiracy.

Second, the defendants claim that the trial court erred by

failing to instruct the jury regarding multiple conspiracies

and buyer/seller relationships. They claim that Jenkins was

involved in a separate conspiracy with Reed and not the

larger conspiracy alleged in the indictment. They also argue
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 5

that the relationships between Reed and Jenkins and

between Reed and Coleman were merely those of buyer and

seller, not co-conspirators. We review the district court’s

refusal to instruct the jury on a theory of defense de novo.

United States v. Skoczen, 405 F.3d 537, 545 (7th Cir. 2005).

A defendant is entitled to an instruction on his theory of

defense only if: (1) the proposed instruction is a correct

statement of the law; (2) the evidence lends some support to

the defendant’s theory; (3) the theory of defense is not part

of the charge; and (4) the failure to include the instruction

would deny the defendant a fair trial. United States v.

Katalinich, 113 F.3d 1475, 1482 (7th Cir. 1997). The district

court determined that the evidence did not support defendants’ theories regarding multiple conspiracies and the

existence of a mere buyer/seller relationship, and we agree.

As stated above, Reed often shared information about his

customers with Jenkins and Coleman. Jenkins and

Coleman also occasionally fronted cocaine to Reed and were

only paid after Reed’s customers paid him. This type of

long-term, interlocking relationship is not indicative of a

simple buyer/seller arrangement, nor does it support the

idea that Reed was involved in several smaller conspiracies

instead of one large conspiracy. The defendants were not

entitled to instructions on those theories.

Finally, defendants challenge the evidentiary foundation

for the tape-recorded conversations and also argue that

their admission into evidence violated their rights under the

Confrontation Clause as set out in Crawford v. Washington,

124 S.Ct. 1354 (2004). These arguments are without merit.

The government provided sufficient foundation for the admission of the tapes; they called witnesses familiar with

defendants’ voices, had them listen to the tapes, and the

witnesses identified defendants’ voices as those on the recordings. Defendants’ challenge goes more to the weight of

the recordings than to their admissibility. To that end, the

defense had full opportunity to cross-examine the witnesses
6 Nos. 04-1176, 04-1177, 04-1231 & 04-2009

with respect to the extent of their familiarity with the

voices.

As to the Confrontation Clause argument, Crawford does

not apply. The recordings featured the statements of co-conspirators. These statements, by definition, are not hearsay.

Crawford did not change the rules as to the admissibility of

co-conspirator statements.

B. Jenkins’ Issues

Jenkins first claims that the evidence presented by the

prosecution was insufficient to sustain his conviction on the

cocaine distribution counts. As with the conspiracy count,

Jenkins does not meet the difficult burden placed on a

defendant making a sufficiency of the evidence challenge.

First and foremost, Jenkins admitted to police that it was

his cocaine that was found in Diedre Keys’ apartment, and

that he engaged in cocaine distribution. Also, the prosecution presented recorded phone calls between Jenkins and

Reed in which they discussed cocaine distribution,

and testimony from other associates regarding the cocaine

distribution conspiracy. Given this evidence, a rational jury

could convict on these counts.

Next, Jenkins argues that the trial court erred when it

denied his motion to identify and produce a confidential

informant (“CI”). We review for abuse of discretion.

United States v. Valles, 41 F.3d 355, 358 (7th Cir. 1994).

Jenkins failed to show a compelling need to identify the CI

that outweighed the public interest in non-disclosure.

Lastly, Jenkins challenges the district court’s evidentiary

ruling with respect to the statements made by his girlfriend, Diedre Keys. Officer Vincent Humphrey testified

about the details of the search of Keys’ home. Part of his

testimony included statements Keys made to him regarding

the crack cocaine located in her kitchen. Jenkins argues
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 7

that these statements were hearsay and should not have

been admitted into evidence. We review for abuse of discretion. United States v. Bonty, 383 F.3d 575, 579 (7th Cir.

2004).

The testimony was not hearsay because it was not offered

to prove the fact that the cocaine belonged to Jenkins.

Officer Humphrey was asked on cross-examination about

whether he had read Keys her rights and about his police

report which stated that Keys told the police that “Jenkins

told her that she left a little something under the kitchen

cabinet.” Humphrey testified that Keys told him that

Jenkins had left the crack under the cabinet and explained

that the report contained a typo—that “she” should have

been written “he”. Jenkins’ attorney attempted to show,

through the inconsistency in the report and the fact that

Keys was given Miranda warnings, that the police actually

believed that the crack belonged to Keys. By doing so, he

took a risk and opened the door to Keys’ statements that

attributed the drugs to Jenkins. Her statements were

offered to show why the police did not believe the crack to

be hers and why she was not arrested. There was no abuse

of discretion in admitting the statements.

C. Hill’s Issues

First, Hill argues that the record does not support the

jury’s finding that he was a part of the cocaine distribution

conspiracy because the conspiracy ended when the police

seized crack cocaine from Wendy Whennen. This argument

is without merit. The charged conspiracy’s purpose was the

distribution of narcotics in the Joliet area. The fact that the

government seized 1,691 grams of crack cocaine from the

home of Reed’s girlfriend did not end the conspiracy. The

main criminal objective of the conspiracy had not been

abandoned after this single drug seizure. See United States

v. McKinney, 954 F.2d. 471, 475 (7th Cir. 1992). Also, Hill
8 Nos. 04-1176, 04-1177, 04-1231 & 04-2009

continued to assist the conspiracy in several ways, including

intimidating Whennen, a potential government witness.

The evidence sufficiently established Hill’s role as an enforcer in the drug conspiracy.

Second, Hill challenges the district court’s denial of his

motion to sever the possession with intent to distribute

count of the indictment. He argues that there was very little

evidence presented at trial that connected him to drugs, and

though he was eventually acquitted on the possession

count, the evidence presented to support it prejudiced the

jury with respect to the other charges. We review a denial

of a motion to sever for an abuse of discretion. United States

v. Smith, 308 F.3d 726, 736 (7th Cir. 2002).

The count at issue is of the same character and is based

on the same series of transactions as the other counts of the

indictment. FED. R. CRIM. P. 8(a). The evidence presented

in support of this count did not prejudice Hill. The overall

evidence showed that Hill was, in fact, involved in drugs.

Different people play different roles in a drug conspiracy, be

it supplier, lookout, courier, or enforcer. The indictment

charged, and the evidence showed, that Hill played the role

of an enforcer in this particular conspiracy. The fact that he

may not have had as much direct contact with the actual

distribution of cocaine as others does not mean that he was

not part of the overall conspiracy. Also, the fact that he was

acquitted on the possession with intent to distribute count

shows that the jury was able to give separate consideration

to the various counts of the indictment and the evidence.

The district court did not abuse its discretion in denying the

motion to sever.

Finally, Hill challenges his sentence on Sixth Amendment

grounds. The district court, operating prior to the Supreme

Court’s decision in United States v. Booker, 125 S.Ct. 738

(2005), treated the Guidelines as mandatory and made findings of fact that enhanced Hill’s sentence. This was error.
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 9

We order a limited remand in accordance with the procedure outlined in United States v. Paladino, 401 F.3d 471

(7th Cir. 2005).

D. Reed’s Issues

Reed claims that (1) the prosecutor breached a promise to

seek a downward departure in his sentence in exchange for

his cooperation, which the district court failed to remedy;

and (2) his sentence violates Booker.

First, Reed contends that the government promised to

move for downward departure based on substantial assistance if he helped to identify Coleman. The district court

determined that no such promise had been made. Disputes

regarding the terms of a cooperation or plea agreement are

questions of fact to be determined by the district court and

will only be reversed if they are clearly erroneous. See

United States v. Williams, 198 F.3d 988, 992 (7th Cir. 1999);

United States v. Daniels, 902 F.2d 1238, 1243 (7th Cir.

1990). The district court did not err by finding that the

government did not make any enforceable promise to Reed.

Reed acknowledged on three separate occasions that the

prosecution made no promises to him. He signed a proffer

letter which stated that there was no other promise existing

between himself and the government, he testified before the

grand jury that the prosecution had not made him any

promises about seeking a downward departure, and he

admitted at his plea colloquy that no oral promises had

induced him to plead guilty. Furthermore, the government

twice asked the district court to delay Reed’s sentencing so

that it could have more time to consider its position on

whether to move for a downward departure based on

substantial assistance, and Reed did not object. Logic

dictates that if there had been a promise made and some

sort of enforceable agreement reached, Reed would not have

agreed to these continuances. He would have objected,
10 Nos. 04-1176, 04-1177, 04-1231 & 04-2009

claiming that the government did not need additional time

as it had already promised to make the substantial assistance motion.

Second, Reed takes issue with the trial judge’s decision to

impose a sentence based on a total adjusted offense level of

41 under the Sentencing Guidelines. The district court

determined that his base level was 38, but arrived at an

adjusted offense level of 41 after enhancements for being a

leader/organizer. Following the Guidelines, the judge sentenced Reed to 360 months in prison. As with Hill, the

district court erred in treating the Guidelines as mandatory

and making findings of fact that enhanced Reed’s sentencing range. We remand in accordance with Paladino.

E. Coleman’s Issue

Coleman maintains that the trial court erred when it

allowed testimony from FBI Special Agent Wayne Zydron

regarding statements made by another officer and Coleman

after they played a tape containing Coleman’s voice. After

taking Coleman into custody, Zydron advised him of his

rights, then played a tape which he believed contained

Coleman’s voice. After playing the tape, Zydron asked the

other officer whether he thought that the voice on the tape

was Coleman’s. The officer agreed that the voice was indeed

Coleman’s, at which point, Zydron testified Coleman hung

his head and said, “I’m fucked.”

Coleman never moved to suppress his statement at trial.

In fact, even after an inquiry by the trial judge as to

whether he was going to make a motion to suppress,

Coleman’s attorney declined to do so. By making this strategic choice, Coleman has waived the issue.
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 11

III. Conclusion

We AFFIRM the convictions of Jenkins, Coleman, and Hill

and order a LIMITED REMAND with respect to the sentences

of Reed and Hill.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-16-05