In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1414

United States of America,

Plaintiff-Appellee,

v.

James E. Johnson,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 97 CR 211--Charles N. Clevert, Judge.

Argued September 10, 1999--Decided January 13, 2000

 Before Flaum, Manion, and Diane P. Wood, Circuit

Judges.

 Manion, Circuit Judge. James Johnson was

convicted by a jury of one count of conspiracy to

distribute and to possess with intent to

distribute in excess of five kilograms of

cocaine. He was sentenced to 360 months of

imprisonment. He argues on appeal that the

government failed to provide Jencks Act material

and that the district court erred in admitting

hearsay at his trial. As to his sentence, Johnson

argues that the district court erred in adopting

the government’s determination of the amount of

cocaine attributable to him. Finding no error, we

affirm.

I.

 The prosecution’s primary witness at Johnson’s

trial was Michael Blake, one of Johnson’s

associates and drug suppliers who had agreed to

cooperate with the authorities. Blake testified

that he began distributing cocaine in the

Milwaukee, Wisconsin area around 1979. He met

Johnson around that time through Johnson’s

brother, Charles, and began distributing drugs to

James Johnson. Blake’s drug distribution was

periodically interrupted by short stints in

prison, but when he was released in 1995, a

former prison buddy--Candelario Nevarez-Diaz--

contacted him and proposed a cocaine dealing
venture. Nevarez-Diaz agreed to front the

cocaine, meaning Blake would pay for it only

after he had sold it to others. That very night,

Nevarez-Diaz fronted Blake 125 grams of cocaine,

which Blake in turn fronted to Johnson and

another individual, Gordon Hagenkord. Blake and

Hagenkord also fronted cocaine to Robert

Schultz/1 and his stepdaughter Colleen Hanson,

who sold it out of Shultz’s Milwaukee bar, the

Blue Ribbon Pub.

 The sales continued and increased to a point

where in early 1996, Nevarez-Diaz was supplying

Blake with one kilogram of cocaine every two

months. Blake, in turn, delivered some of the

cocaine to Johnson’s home in Milwaukee. Blake

testified that in 1996, he delivered up to two

kilograms of cocaine to Johnson at any one time,

and Johnson paid him $28,000 for each kilogram.

By this time, Blake was working closely with

Nevarez-Diaz and even used Nevarez-Diaz’s money

to purchase a Chevrolet Lumina to transport drugs

from Arizona. In 1997, Nevarez-Diaz supplied

Blake with around 5 to 10 kilograms of cocaine

every ten to twelve days, for which Blake paid

him $22,000 per kilogram. Blake, in turn,

supplied Johnson with between 3 and 4 kilograms

of cocaine every ten to twelve days, and sold it

on credit for about $27,000 per kilogram. Blake

estimated that between January 1, 1996 and July

24, 1997 he supplied Johnson with between 35 and

45 kilograms of cocaine.

 On July 24, 1997, the police finally caught up

with Blake when they pulled his car over for a

traffic violation. A search of his vehicle turned

up cocaine and around $120,000, some of which

Johnson had given to Blake for cocaine. Charged

with possession of cocaine and facing a long

stretch in prison, Blake decided to cooperate

with the government. With the assistance of the

police, he placed recorded telephone calls to

Nevarez-Diaz, Johnson, and Hagenkord. Audio tapes

of Blake’s four conversations with Johnson were

admitted into evidence and played for the jury.

The recorded conversations were consistent with

Blake’s testimony that he fronted cocaine to

Johnson and that Johnson was a willing

participant in the conspiracy. 

 Johnson testified at his trial, and although he

admitted that he used cocaine, he denied that he

ever was involved in a drug conspiracy. Rather,

Johnson stated that he and Blake sold seafood

products. According to Johnson, Blake would drop

off shrimp, which Johnson would peddle on the

street and for which he would pay Blake some of

the proceeds. Apparently the jury did not believe

him, as it convicted him of one count of

conspiracy with intent to distribute and
possession with the intent to distribute cocaine,

in violation of 21 U.S.C. sec. 841(a)(1). With an

offense level of 37 and a criminal history

category of VI, Johnson was sentenced to 360

months of imprisonment, the shortest sentence

permitted under the Guidelines. 

II.

A. Co-Conspirator Exception to the

Hearsay Rule

 During direct examination, government witness

Gordon Hagenkord was asked about his duties in

carrying on the drug business after supplier

Michael Blake was arrested. As part of his

response Hagenkord stated that when he started

selling drugs for Blake, "I took over the south

side and J.J. [Johnson] had the north side."

Johnson first contends that the district court

erred in admitting this testimony. Johnson argues

that this statement, "J.J. had the north side",

was inadmissible hearsay not covered by the coconspirator exception because Blake’s statement

was not made in furtherance of the conspiracy./2

 We review for an abuse of discretion the

district court’s decision to admit testimony

while its factual findings are examined for clear

error. United States v. Mojica, 185 F.3d 780, 788

(7th Cir. 1999); United States v. Petty, 132 F.3d

373, 379 (7th Cir. 1997). A statement is not

considered to be hearsay if it is made by "a coconspirator of a party during the course and in

furtherance of the conspiracy." Fed. R. Evid.

801(d)(2)(E). To utilize the co-conspirator

exception the government must show that: (1) a

conspiracy existed; (2) the declarant and the

defendant were both members of the conspiracy;

and (3) the statements were made in the course

and in furtherance of the conspiracy. Mojica, 185

F.3d at 788.

 Statements which further the conspiracy must be

distinguished from mere idle chatter, narrative

declarations, and superfluous casual remarks

which do not further the conspiracy. United

States v. Curry, 187 F.3d 762, 766 (7th Cir.

1999); United States v. Santos, 20 F.3d 280, 286

(7th Cir. 1994) (narrative discussions of past

events were not statements made in furtherance of

the conspiracy). Statements made in furtherance

of a conspiracy can take a variety of forms. Some

examples include comments designed to assist in

recruiting potential members, to inform other

members about the progress of the conspiracy, to

control damage to or detection of the conspiracy,

to hide the criminal objectives of the

conspiracy, or to instill confidence and prevent

the desertion of other members. United States v.

Godinez, 110 F.3d 448, 454 (7th Cir. 1997);
United States v. Stephenson, 53 F.3d 836, 845

(7th Cir. 1995); United States v. Brookins, 52

F.3d 615, 623 (7th Cir. 1995); United States v.

Cox, 923 F.2d 519, 527 (7th Cir. 1991). Courts

assess a statement’s ability to advance the

conspiracy in the context in which the statement

was made. United States v. Powers, 75 F.3d 335,

340 (7th Cir. 1996). "The statement need not have

been made exclusively, or even primarily, to

further the conspiracy." Id. Rather, the record

need only contain some reasonable basis for

concluding that the statement in question

furthered the conspiracy in some respect.

Stephenson, 53 F.3d at 845; United States v.

Marin, 7 F.3d 679, 690 (7th Cir. 1993).

 Here, Blake’s statement, "J.J. had the north

side", as repeated by Hagenkord, served several

purposes. First the statement gave Hagenkord

confidence in the confederacy through knowledge

that others like Johnson were similarly willing

to participate in the conspiracy. More

importantly, the statement conveyed to Hagenkord

the breadth of the conspiracy, its geographical

divisions, and his role with respect to those

divisions. Blake’s statement could have furthered

the conspiracy by letting Hagenkord know that he

was to concentrate on the south side of town

while leaving the north side for Johnson. By

precluding internecine competition, the

conspiracy could more efficiently allocate its

resources and thereby minimize waste. Thus, we

have held that the "in furtherance" element is

satisfied when the statement conveys information

which helps conspirators perform their designated

roles, as Blake’s comment did in this case.

Godinez, 110 F.3d at 454. Similarly, by

preventing the conspiracy from becoming a house

divided against itself, Blake’s comment helped to

prolong the conspiracy. Because Blake’s statement

to Hagenkord furthered the goals of the

conspiracy in several respects, the district

court did not err in admitting this testimony

under Rule 801(d)(2)(E).

B. Jencks Act

 Johnson also argues that the government failed

to provide Jencks Act material, despite the

government’s assurances to the district judge

that it had no such material with respect to

Gordon Hagenkord. In support of this argument,

Johnson directs our attention to his trial

attorney’s cross-examination of Hagenkord.

Defense Counsel:

You said that persons [a prosecuting attorney, an

IRS agent, and DEA agent Rodel Babasa] read

reports to you?
Hagenkord:

They weren’t reports. They were, they read back

my own statements to me as I, they were putting

them down.

Defense Counsel:

That is, they had a document that had your

statement in it?

Hagenkord:

Yes.

Defense Counsel:

And they read your statements back to you?

Hagenkord:

Yes.

Defense Counsel:

And they read your statements back and asked you

if that’s what happened. Do I have that right?

Hagenkord:

Yes.

[Tr. Trans. Vol X pp. 348-49] According to

Johnson, this colloquy demonstrates that Jencks

material existed, and he argues that he never

received this material. 

 The Jencks Act was enacted in response to the

Supreme Court’s holding in Jencks v. United

States, 353 U.S. 657 (1957). To ensure the

meaningful confrontation of government witnesses,

the Act requires the government, upon the

defendant’s motion, to produce statements made by

any of its witnesses which the particular

witnesses signed, adopted, or approved, and which

pertain to their testimony at trial. 18 U.S.C.

sec. 3500(b); see also Fed. R. Crim. P. 26.2;

United States v. Lopez, 6 F.3d 1281, 1288 (7th

Cir. 1993). The hope is that these statements

will afford the defense a basis for effective

cross-examination of government witnesses and the

possible impeachment of their testimony without

overly burdening the government with a duty to

disclose all of its investigative material. See

United States v. O’Malley, 796 F.2d 891, 900 (7th

Cir. 1986); United States v. Snow, 537 F.2d 1166,

1168 (4th Cir. 1976). To ensure the government’s

compliance with the Act the statute prescribes

penalties for failing to produce Jencks material,

which include the striking of the particular
witness’s testimony or the declaration of a

mistrial. 18 U.S.C. sec. 3500(d).

 In addressing Johnson’s argument that the Jencks

Act was violated, the government presents a host

of rather weak arguments. First, the government

argues that Johnson only requested the

prosecutor’s notes, and made no general call for

Jencks material. The trial transcript, however,

indicates that the prosecutor’s notes were merely

one type of material sought by Johnson.

Furthermore, even if Johnson’s request could be

construed as being limited to the prosecutor’s

notes, where (as in this case) the defendant

sought at least some Jencks material and the AUSA

affirmatively represented to the defendant and

the district judge that no additional Jencks

material existed, the defendant is entitled to

rely on this representation. See United States v.

Knapp, 25 F.3d 451, 460 (7th Cir. 1994) (a

defendant need not move for each witness’s Jencks

material where the government promises to produce

it).

 The government then contends that Johnson’s

request for the material was not sufficiently

specific. This argument fails because Johnson

requested all Jencks material, and he could

hardly identify documents by name when they are

not in his possession. For this reason, we have

said that a "defendant need not be extremely

particular in requesting such information. A

defendant’s counsel cannot be overly specific

about items he may never have seen." United

States v. Allen, 798 F.2d 985, 997 (7th Cir.

1986).

 The government then argues that Hagenkord did

not approve or adopt any statements, thereby

taking them outside the scope of the Act. The key

question here is "’whether the statement can

fairly be deemed to reflect fully and without

distortion the witness’s own words.’" United

States v. Blas, 947 F.2d 1320, 1326 (7th Cir.

1991) (quoting Allen, 798 F.2d at 994).

Hagenkord’s testimony indicates that the

government read his statements back to him and

that he then assented to them. Under longstanding

precedent this constitutes the witness’s approval

of them. Allen, 798 F.2d at 994 (adoption or

approval can be shown by demonstrating that the

interviewer read back to the witness what he

wrote and the witness affirmatively stated his

approval); see United States v. Marrero-Ortiz,

160 F.3d 768, 776 (1st Cir. 1998); United States

v. Roseboro, 87 F.3d 642, 645 (4th Cir. 1996);

United States v. Ogbuehi, 18 F.3d 807, 810-11

(9th Cir. 1994); United States v. Newman, 849

F.2d 156, 160 (5th Cir. 1988). So since this is

precisely the process Hagenkord described, the

government’s argument gets nowhere.
 Next, the government seems to argue that the

purported statements at issue here were not

covered by the Jencks Act because the AUSA in

charge of the case was not the prosecuting

attorney who read the statements back to

Hagenkord and that he had no such document in his

immediate possession. But as our colleagues on

the Fifth Circuit have made clear, "[t]he Jencks

Act is not restricted to statements ’in the hands

of, or known to, the particular prosecuting

attorney assigned to the case, the U.S.

Attorney’s office, the Criminal Section of the

Justice Department, or even the entire Justice

Department. Its order is unqualified.’" United

States v. Ramirez, 174 F.3d 584, 588 (5th Cir.

1999); United States v. Bryant, 439 F.2d 642, 650

(D.C. Cir. 1971) (the duty to disclose under the

Jencks Act "affects not only the prosecutor, but

the Government as a whole, including its

investigative agencies."). Thus, the document in

question was required to be turned over to

Johnson so long as any federal prosecuting

attorney or agent had possession of it. 

 Finally, the government contends that Johnson

has failed to show prejudice. On the surface,

this argument has some legitimacy because

although the text of the Act does not itself

require a demonstration of prejudice, courts have

held that relief may not be granted under the

Jencks Act without such a showing. United States

v. Riley, 189 F.3d 802, 806 (9th Cir. 1999)

("While a defendant need not prove prejudice to

show a violation of the Jencks Act . . . when

there is no prejudice, a witness’s testimony need

not be stricken."); United States v. RosarioPeralta, 175 F.3d 48, 53 (1st Cir. 1999)

(statements must be produced under the Jencks Act

whether they are exculpatory or not, but no

relief will be granted unless the failure to

disclose caused prejudice). Furthermore, a

showing of prejudice is part of the harmless

error analysis, which also applies to Jencks

violations. United States v. Wables, 731 F.2d

440, 448 (7th Cir. 1984) (a failure to produce

Jencks material may be a harmless error "only

when it is ’perfectly clear’ that the

nondisclosure of Jencks Act statements did not

prejudice the defendant")./3 But in making this

argument here, where the government allegedly did

not produce the purported Jencks documents for

the defendant to review, the argument’s

limitations become readily apparent. A defendant

who does not know what is contained in unproduced

Jencks documents would be hard pressed to show

how that material would have benefitted his

defense. So assuming that Johnson was never given

the document in question, we can hardly hold

Johnson responsible for his failure to allege
prejudice. Indeed, it would be improper for

counsel who are ignorant of a document’s contents

to argue that the failure to produce such a

document prejudiced the defense.

 Ultimately, however, Johnson cannot prevail on

this argument because he neither raised it nor

attempted to develop it before the district

court. Although there is no question that he

initially requested Jencks documents, Johnson

never pursued this request after he learned at

trial about the alleged statements read back to

Hagenkord. Johnson should have informed the

district court about the potential contradiction

created by Hagenkord’s testimony and the AUSA’s

assertion that no Jencks material existed.

Similarly, as Agent Babasa was identified by

Hagenkord as being present while Hagenkord

approved the statements, Johnson’s attorney

should have cross-examined Babasa about the

document and the meeting. Had Johnson done this,

and his efforts demonstrated the existence of a

probable Jencks document that had not been

produced, the district judge would have been

obliged to conduct a hearing on the matter,

thereby preserving the issue for appellate

review. Lopez, 6 F.3d at 1288-89. Alternatively,

if the district judge denied the defendant’s

motion to hold such a hearing, that decision

itself would be subject to appellate scrutiny.

Id. at 1289. But because Johnson failed to take

any of these steps, he has waived this argument,

and we review only for plain error. United States

v. Shorty, 159 F.3d 312, 313 (7th Cir. 1998).

 In an effort to get to the bottom of this, at

oral argument we asked AUSA Paul Kanter (who was

also the trial prosecutor) whether he knew to

which document Hagenkord was referring, and

whether the document was produced for Johnson.

Kanter unequivocally insisted that any such

document would have been turned over to Johnson

under the open file discovery policy of the

United States Attorney’s office and that he had

no knowledge of any such government document that

was not given to Johnson. In light of these

assertions, if the document in question existed,

it was available to Johnson. This would certainly

explain why Johnson’s trial counsel declined to

further explore this issue with Hagenkord and

Babasa on cross-examination, and why he didn’t

present this argument to the district court or

seek a hearing on the matter. In short, Johnson

points to nothing in the record which indicates

that he did not receive this document, but

instead asks us to speculate that this may be the

case. Because the open file policy gives defense

counsel access to all information available to

the prosecution and there is nothing in the

record which definitively indicates that a Jencks
document was not produced for the defense, we

cannot say that there was an error here, much

less a manifest error that affected Johnson’s

rights. See United States v. Cusimano, 148 F.3d

824, 828 (7th Cir. 1998)./4 Accordingly, Johnson

cannot prevail on this argument.

C. Calculation of Drug Amounts for

Sentencing

 Finally, Johnson attacks the district court’s

decision that, for purposes of determining his

relevant conduct for sentencing, Johnson should

be held responsible for between 15 and 50

kilograms of cocaine. This resulted in a base

offense level of 34. See U.S.S.G. sec.

2D1.1(c)(3). Johnson complains that the district

court adopted the Probation Department’s

calculation of the drug quantity, which Johnson

asserts was just a wholesale adoption of the

government’s position on the matter./5 Thus, he

seems to question the integrity of the

calculations.

 We review the district court’s calculations of

drug quantities for clear error. United States v.

Span, 170 F.3d 798, 803 (7th Cir. 1999). We must

affirm unless we are left with the firm

conviction that a mistake has been committed. Id.

The defendant has the right to be sentenced on

the basis of a reasonable quantity of reliable

information. United States v. James, 113 F.3d

721, 730 (7th Cir. 1997). The government has the

burden of establishing the type and amount of

drugs attributable to the defendant by a

preponderance of the evidence. Id. Thus, clear

error can occur with respect to drug calculations

when the government fails to marshal evidence of

a sufficient magnitude or where the calculations

are based on unreliable evidence. Span, 170 F.3d

at 803. In calculating the drug quantities, a

district court may "consider a wide range of

information so long as it has a "’sufficient

indicia of reliability to support its probable accuracy.’"

United States v. Robinson, 164 F.3d 1068, 1070

(7th Cir. 1999) (quoting United States v. Taylor,

72 F.3d 533, 543 (7th Cir. 1995)). In assessing

the reliability of the evidence we will leave

credibility determinations to the sound

discretion of the district court. United States

v. Miner, 127 F.3d 610, 615 (7th Cir. 1997).

 Here, the district judge stated his reasons for

calculating the drug quantity as he did, and the

evidence he relied upon in making the

calculation.

 Well, I have listened carefully to your

arguments and have had a chance to look at some

of the transcript which is available. Among the
things that I note from my review of the record

set forth in the transcript and my notes as well

as my recollection of the witnesses as they

testified is that there were some places where

there were inconsistencies in the testimony of

Mr. Blake and Mr. Hagenkord and Mr. Babasa.

 But notwithstanding that Blake and Hagenkord in

my view were truthful, truthful in the relevant

aspects insofar as drug quantities are concerned.

I note that their testimony was corroborated in

large measure by the tape, the conversations of

Mr. Johnson. This conspiracy lasted at least 21

months. And as Mr. Kanter has pointed out, if at

least one kilogram was delivered each month then

Mr. Johnson was responsible for at least 21 kilos

and the quantity of drugs for which he can be

held responsible is clearly within the 15 and 50

kilograms which would obviously affect the

implications of the guidelines.

[Sent. Tr. Vol. 16 p.14-15]

It is clear from this excerpt that the district

judge based his calculations on the evidence in

the record, and that he did not simply restate

the government’s calculations set forth in the

pre-sentence report without first scrutinizing

them. Rather, he determined that the government’s

calculations were correct, and in fact were quite

conservative. (Recall Blake’s testimony that he

supplied Johnson with between 35 and 45 kilograms

of cocaine.) Johnson correctly notes that there

could be some problem if the district judge

unwittingly relied on the recommended

calculations of the pre-sentence report thinking

that they were non-partisan conclusions, or if he

failed to scrutinize them in any way. But

"district judges have the ability to read a presentence report without being improperly

influenced." United States v. Sifuentez, 30 F.3d

1047, 1049 (9th Cir. 1994) (emphasis in

original). In this case, not only was the

district judge made aware of the government’s

authorship of the calculations, he based his

adoption of these figures on an independent

review of the record.

 Importantly, the Probation Department’s

substantial reliance on the government’s position

does not mean that the information on which it

relied or the calculations that it performed were

inaccurate; it simply means that the Probation

Department also believed that there was a

sufficient basis for these calculations. Notably,

Johnson fails to show that there was insufficient

evidence to support the district court’s

calculations, or that the evidence on which the

calculations were based is unworthy of credence;

rather, his sole complaint is with the PSR’s
conformity with the government’s view. Because

Johnson fails to show that the district court’s

determinations were incorrect or that they were

based on unreliable evidence, we conclude that

the district court did not clearly err in finding

that Johnson should be held responsible for

between 15 and 50 kilograms of cocaine. 

 For all of these reasons, we affirm.

/1 Both Hagenkord and Shultz pleaded guilty to one

count of conspiracy to distribute and possess

with intent to distribute in excess of five

kilograms of cocaine, in violation of 21 U.S.C.

sec.sec. 841(a)(1) & 846.

/2 Although at first glance this statement may not

appear to be hearsay, the parties agree that

Hagenkord was paraphrasing Blake, and that the

statement was indeed hearsay.

/3 However, in at least one federal circuit,

deliberate misrepresentations to the district

court that no Jencks material exists precludes

harmless error analysis. United States v.

DeFranco, 30 F.3d 664, 667 (6th Cir. 1994).

/4 The present case is much like the one we faced in

United States v. Starnes, 644 F.2d 673, 680 (7th

Cir. 1981). There, we held that the defendants

forfeited their argument that the prosecutor

failed to provide Brady material where the

prosecutor denied having such material and the

defendant failed to explore the issue by crossexamining government agents or seeking a hearing.

/5 The record supports Johnson’s contention that the

Probation Department relied on the government’s

calculations of drug quantities, as Kanter

specifically stated so during the sentencing

hearing. Johnson argued before the district court

(but not to this court) that the only reliable

evidence showed that he was responsible for 4.5

kilograms of cocaine, thereby giving him a base

offense level of 30.