In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-1466, 08-1608, 08-1616 & 08-1617

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAREK HAYNES, BRODERICK JONES,

EURAL BLACK, and BRENT TERRY,

Defendants-Appellants.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:05-cr-70—Ronald A. Guzmán, Judge.

ARGUED JUNE 5, 2009—DECIDED SEPTEMBER 17, 2009

Before POSNER, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Crime is a risky business. One

of the risks is that you will get caught. That happened to

Darek Haynes, Broderick Jones, Eural Black, and Brent

Terry. They were charged with a drug conspiracy, a

robbery and extortion conspiracy, and related offenses.

Haynes, Jones, and Black also were charged with a racketeering conspiracy. Haynes and Jones pled guilty. Black
2 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

As you read this, it may be difficult to tell the cops from the 1

crooks. That’s because many of the actors in these events

are both. You may be reminded of a popular movie released

in 2001, Training Day, featuring Denzel Washington’s Oscarwinning portrayal of the ultimate corrupt cop. See

http://trainingday.warnerbros.com (last visited Sept. 4, 2009).

In our case, life imitates art.

and Terry were tried by a jury and convicted. These

defendants appeal, raising several issues. Finding no

error, we affirm.

I. Background

The following facts are taken from the evidence

viewed in the light most favorable to the government

with all reasonable inferences drawn in the government’s favor, as we must. The defendants were involved 1

in a criminal enterprise that included bad cops and drug

dealers in Chicago, Illinois, beginning as early as 1999

and continuing into 2005. The drug dealers in the enterprise provided the corrupt cops with information about

the location of narcotics and money held by other drug

dealers. The corrupt officers used that information to

conduct traffic stops and home invasions and seize

any drugs and money they found. The cops then sold the

drugs with the help of the drug dealers, and the

coconspirators divided the proceeds. None of this was

legitimate law enforcement activity.

The leader of the conspiracy was defendant Broderick

Jones, then a Chicago police officer. Someone in the
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 3

Chicago Police Department (CPD) management must

have had suspicions about him because on August 22,

2003, Jones was informed by the CPD that he was no

longer authorized to exercise police authority and was

being placed on “restricted duty” pending an investigation into his conduct. He had to surrender his CPD

star, shield, and ID card, and was ordered not to carry

a firearm or any other weapon, not to exercise his police

powers, and not to drive a CPD motor vehicle without

authorization.

In the summer of 2004, Jones called his former police

partner, Erik Johnson, and asked for his assistance in

ripping off a drug dealer. At the time of Jones’s call,

Johnson was on duty with his new CPD partner, defendant

Eural Black, patrolling in Johnson’s unmarked police

cruiser. Johnson agreed to meet Jones at the intersection

of 87th Street and Lafayette Avenue to discuss the

ripoff. When Black and Johnson met Jones, he told them

that a drug courier would be driving by shortly and that

he wanted them to stop the car and seize any narcotics

they found. Jones would sell the drugs and give

Johnson and Black between $8,000 and $10,000. Black

and Johnson discussed Jones’s proposal and agreed to

participate. Once they told Jones that they would join

in, Jones called someone on his cell phone. Then the

three cops waited for several hours for the drug courier,

but he didn’t show. Since it was approaching the end

of their shift, Black and Johnson left.

A few weeks later, Jones again called Johnson while

Johnson was on duty patrolling with Black in his CPD
4 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

cruiser. Jones asked Johnson to meet him at the intersection of 87th Street and Lafayette Avenue, the same

location where they had met before. Johnson told Black

that Jones wanted to meet with them again, and they

drove to the intersection where they met Jones. Jones

advised them that a drug courier would be driving

through the neighborhood and that he wanted them to

pull him over, search his vehicle, and seize any

narcotics found. He again offered to pay Johnson and

Black between $8,000 and $10,000 for their assistance.

Johnson understood that they would be paid from the

sale of any drugs seized during their traffic stop of the

drug courier.

Black and Johnson agreed to join in the ripoff. Jones got

into the back of the police cruiser and they drove to the

intersection of 91st Street and Indiana Avenue where

they waited for the drug courier. Jones said that the

courier would be a Hispanic male driving a red sport

utility vehicle (SUV). Soon enough, a Hispanic male

driving a red SUV appeared. Johnson pulled behind the

SUV, activated his cruiser’s siren and lights, and ordered

the driver to pull over. The driver complied. Jones, Johnson, and Black exited the police cruiser and approached

the SUV. Jones pulled the driver out and patted him

down. Black handcuffed the driver and placed him in

the police cruiser. Then Jones searched the SUV. When

he had completed his search, the officers released the

driver. Johnson didn’t see Jones remove any drugs

from the SUV, but when Johnson returned to the

cruiser after the search, he saw an empty cardboard

box inside that hadn’t been there before. According to
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 5

Johnson, the box was large enough to contain a onekilogram brick of cocaine.

Jones, Johnson, and Black returned to 91st and

Indiana, where Jones had left his personal vehicle.

Jones advised the other two that he would call them in a

while to inform them when and where they could meet

him for payment. That evening, Jones called Johnson and

the three arranged to meet. When they met that night,

Jones gave Johnson a large bag of money. Black and

Johnson went to Johnson’s house, counted the money,

$12,000, and split it between themselves.

On July 21, 2004, Jones called Johnson a third time,

offering him another chance to participate in ripping off

a drug courier. Again, Johnson was on duty with Black

and in his CPD cruiser. Johnson told Black about Jones’s

offer, and Black agreed to participate, saying that he

needed the cash. This time they met Jones at 87th Street

and Ashland Avenue where Jones told them that a Hispanic male in a black Chevy Blazer SUV would be

driving northbound on Ashland that afternoon. Jones

said the male was a drug courier and that Jones wanted

them to pull him over, search his vehicle, and seize any

drugs inside. Jones gave Johnson a Nextel cell phone

with a “Direct Connect” walkie talkie feature so they

could communicate and told them to wait on Ashland.

A while later, Jones called Johnson on the Nextel phone

and told him that the Blazer was approaching. The

Blazer passed Black and Johnson, and Johnson pulled

out, activated his lights and siren, and pulled the SUV

over.
6 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

In an ironic twist of fate, the driver was a confidential infor- 2

mant (CI) working with the CPD in a legitimate drug investigation. As part of that investigation, legitimate narcotics officers

were using the CI to broker a sale of cocaine to Joseph Wilson,

the owner of a car wash in the 8500 block of South Ashland

Avenue who was involved in drug dealing. Though the CPD

had been suspicious of Jones’s activities, it does not appear

that the CPD had specific information regarding Jones’s and

his cohorts’ illegal activities that day. However, earlier in the

day, some CPD officers working with the CI had observed a

suspected drug courier being followed by Jones in his

personal vehicle and CPD officers defendant Darek Haynes

and Corey Flagg in an unmarked police cruiser. When Haynes

and Flagg pulled over the courier and searched his car, the

CPD officers knew something was up—neither Jones, Haynes,

nor Flagg was participating in the narcotics investigation and

all of them were outside of their assigned district. The officers

contacted the CPD’s Internal Affairs Division, which contacted the FBI. The jig was just about up for our bold defendants.

Black and Johnson exited the cruiser and approached

the Blazer. Both of them were wearing their normal

tactical gear and their guns. Johnson removed the driver

from the Blazer and patted him down. Black handcuffed 2

him and placed him in the police cruiser. By then Jones

had parked his own vehicle a few car lengths behind the

cruiser. Johnson searched the Blazer, receiving specific

instructions from Jones through Direct Connect about

where to look. Johnson, however, didn’t find any drugs.

Johnson and Black released the driver and then met

Jones a few blocks away to discuss the failed ripoff attempt. Jones, Black, and Johnson were photographed
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 7

Jerry’s brother, Joel Montgomery, makes his way into this 3

opinion as well; thus, to avoid confusion, we will refer to

each of them by their first name.

during the stop by legitimate CPD officers. These photographs were introduced into evidence at trial.

The government obtained telephone records from

July 21, 2004, for calls made between phones registered

to the CI, Jones, Johnson, and other CPD officers known

to Jones. The records showed that six calls were made

that morning and afternoon between Jones’s cell phone

and a cell phone registered to Defendant Brent Terry.

Several of those calls were placed within two minutes of

a call between Jones’s phone and a phone registered or

used by one of the other officers known to Jones. A summary of these telephone calls was introduced into

evidence at trial.

Within a few days of the July 21 attempted ripoff, the

government obtained a wire tap on Joseph Wilson’s

phone. A few weeks later, the government obtained a

wire tap on one of Jones’s cell phones. The wire taps

provided a good deal of evidence of Jones’s planned

ripoffs of drug dealers and use of corrupt police officers

to make the ripoffs appear to be legitimate police work.

Early in September, Jones devised a plan to search the

home of Jerry Montgomery, whom Jones knew to be a

drug dealer, and steal his cocaine and money. Jerry knew 3

Jones, so Jones needed another officer to execute the

search. Corey Flagg, another former CPD partner of

Jones, agreed to play that role. Jones thought Flagg
8 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

would need another officer along, so Jones attempted to

contact other officers he knew from the Seventh District

to ask them to participate. Jones asked for Black, but

Black was off duty that day. Jones eventually reached

defendant Darek Haynes who agreed to participate

in ripping off Jerry.

On September 8, 2004, Flagg and Haynes unlawfully

entered the building where Jerry lived. Their plans were

thwarted, however. A neighbor downstairs confronted

them, and Flagg feared he might call the CPD to complain. So Haynes left the scene and Flagg called

his sergeant and other officers to make things look legitimate. When the other officers arrived, Flagg had to inventory the drugs and weapons found and had Jerry

arrested. Jerry attempted to get released by telling the

arresting officers that he knew Jones. Flagg let Jerry

call Jones, and Jerry pleaded with Jones to be released.

Jones called Terry, explaining that Jerry had

been arrested by one of Jones’s associates and had been

throwing Jones’s name around. Jones told Terry that

Jerry would have been released had he bribed the associate, but Jerry didn’t have any cash. Terry called Jones

later that evening and asked whether it was still possible

to get Jerry out. But Jones said it was too late for that.

Jones didn’t obtain any drugs or cash from Jerry’s

house, but he did discover some good information. Jones

learned that Jerry’s drug source was Jerry’s girlfriend,

Marie Townsend, and that she continued to run Jerry’s

drug business while he was detained on the charges

arising from the invasion of his home. So, Jones
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 9

formulated a plan to rip off Townsend. The day after

the failed home invasion, Jones called Terry and

informed him that Jerry’s source was his girlfriend. Terry

said that he knew the girlfriend and would try to find a

way to contact her. He had a tough time contacting

Townsend, though.

So, on September 22, 2004, Jones called Jerry’s estranged

brother, Joel, and told him that Jones’s “buddy B” wanted

to get in touch with Jerry’s girlfriend. (“B” was a nickname Jones used for Terry.) Joel said that Townsend

had Jerry’s cell phone while Jerry was in jail and that

“B” should try Jerry’s number. Joel indicated that

Townsend had been taking calls on Jerry’s cell phone

from Jerry’s associates and would often ask Joel whether

the associate could be trusted. Joel offered to vouch for

“B” if Townsend asked.

Jones and Joel discussed the planned transaction

with Townsend, including the number of kilograms “B”

should order from her. Jones asked if Townsend could

handle a “dub,” meaning twenty kilograms, and Joel

said he thought so. But, he added, if “B” asked for a

“dub” that might “spook” Townsend and she might

want to bring someone else with her to the transaction.

Thus, Joel recommended that “B” ask for less than a “dub,”

more like five to ten kilograms. Immediately after the

call with Joel, Jones called Terry and advised him that

Joel suggested that Terry call Jerry’s phone to reach

Townsend.

On September 24, Terry called Jones and reported that

he was “supposed to meet up with old girl in a little
10 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

bit” and he would call Jones back later. Jones

immediately called Flagg, saying “My buddy B, you

know my buddy B? He about to hook up with old girl

and then . . . he going to know something for me, and . . .

I’ll hit you later.” A few days later, on September 27, Jones

met with Flagg to discuss the plan to rip off Townsend.

Jones told Flagg that his buddy “B” would meet with

Townsend and try to buy ten kilograms of cocaine. Jones

also told Flagg that when the drugs arrived at the

meeting site, “B” would call Jones and say, “bring the

money,” which was a signal for Jones and Flagg to come

to the scene, seize the drugs, and pretend to arrest “B.”

That evening, Terry gave the signal. So Jones and Flagg

drove in Flagg’s unmarked CPD cruiser to a parking

lot near the intersection of 87th Street and Wabash Avenue. Upon arrival, they saw Terry and Townsend

in Townsend’s car. Flagg was wearing his CPD badge

and handgun. Jones and Flagg removed Terry and

Townsend from the car, handcuffed them, and placed

them in the cruiser. Jones seized a bag from the car and

put it in the trunk of the cruiser. Then Jones and Flagg

released Townsend. Jones, Flagg, and Terry drove to

Flagg’s house where they opened the bag that had been

removed from Townsend’s car. Inside, Flagg observed

two brick-shaped packages that he believed, based on

his experience, were two kilograms of cocaine. He also

saw several other brick-shaped objects beneath the

two packages and believed they were cocaine as well.

Based on his observations and the size of the bag, Flagg

believed that the bag contained ten kilograms of cocaine.

Jones called a third person to say he was on his way,
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 11

and then Jones and Terry departed with the cocaine.

Later in the evening, Jones returned to Flagg’s house. Jones

told Flagg that he kept five kilograms of cocaine and gave

“B” five. Jones gave Flagg between $10,000 and $12,000,

which Flagg understood came from the sale of the cocaine. Flagg eventually received a total of $21,000 to

$25,000 for his role in the Townsend ripoff.

On October 15, 2004, Jerry was released from detention.

Within a few weeks, he was pulled over by CPD officers

who called Flagg to the scene. When Flagg arrived, Jerry

revealed his suspicion that the stop of Townsend and

Terry was not legitimate. Flagg called Jones from the

scene to relay this to him. Later that month, Jones

called Terry to inform him that Jerry might be on to

them. Jones admitted that he was a bit worried, but he

was going to meet with his “buddy” who would “tell

[him] everything.” After Jones talked to his “buddy,” he

called Terry to say that he thought Jerry knew that

Townsend’s arrest was a scam. Jones also told Terry

that Jerry had mentioned Terry’s name.

On November 13, 2004, Jones and James Walker agreed

to rip off a Mexican drug supplier. According to Jones’s

plan, Walker would invite the supplier to bring drugs

to the car wash at the intersection of 85th and Ashland

and would back out at the last minute. Then, when the

supplier left the car wash, Jones and other crooked cops

would stop him, seize the drugs, and let him go. Jones

tried feverishly to contact officers to assist in the ripoff.

He tried to reach Black, but got his voice mail. Later

that afternoon, Black returned Jones’s call, and Jones
12 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

said that he “might have something for you.” Black

responded, “Call me man.” Jones replied, “Okay . . . just

stay around for a minute, I got to make a call real quick.”

Black asked where he should go, and Jones instructed, “it’s

gonna be over there where we was last time by the car

wash . . . 85th and Ashland.” Black told Jones, “I’m heading that way.” Jones called Black again and advised

that “we waiting for him to call back.” Black said he was

on his way. That afternoon, law enforcement agents,

conducting surveillance in the vicinity of the car wash

at 8540 S. Ashland Avenue, observed Black’s CPD cruiser

parked in a parking lot near the intersection of 87th

and Ashland with two black males inside. Nothing came

of the planned ripoff of the Mexican drug supplier.

A few hours later, Jones and Terry spoke by phone. Jones

said he was at the intersection of 85th and Ashland and

had “just tried to do something,” but it “didn’t go

through.” Jones said that he “was going to come at

you tonight too, but . . . it ain’t followed through so

we’ll see what happens in the morning.” Jones and Terry

talked on the phone again on November 23, 2004, when

Jones stated, “I need another demo.” Terry replied, “I’ve

been trying to work on some s— too though. . . . [W]e got

to get up, link up together this week for sure.”

Haynes, Jones, Black, Terry were charged with a drug

conspiracy involving five kilograms or more of mixtures

containing cocaine and quantities of marijuana and a

robbery and extortion conspiracy in violation of 21

U.S.C. § 846 and 18 U.S.C. § 1951. Haynes, Jones, and

Black also were charged with a racketeering conspiracy
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 13

in violation of 18 U.S.C. § 1962(d). All four were charged

with related drug and robbery and extortion offenses

and one or more firearms offenses under 18 U.S.C. § 924(c).

Haynes pled guilty and was sentenced to 168 months

on the conspiracy convictions and a consecutive 60-

month sentence on the § 924(c) conviction for a total of

228 months. Jones pled guilty and was sentenced

to 240 months on the conspiracy counts and a consecutive

60-month sentence on the firearm conviction for a total

of 300 months. Black and Terry were tried by a jury

and convicted as charged. Black was sentenced to 480

months’ imprisonment. Terry was sentenced to 168

months for the substantive drug conspiracies and a 60-

month consecutive sentence on the § 924(c) conviction

for a total of 228 months. These appeals followed.

II. Discussion

Black and Terry claim that the trial evidence was insufficient to support their conspiracy convictions, resulting

in a fatal variance between the conspiracy charged and

the conspiracy proved at trial. They also challenge the

sufficiency of the evidence to support their § 924(c) convictions. Terry argues that there was insufficient

evidence to prove that he possessed five kilograms of

cocaine and that a recorded conversation between Jones

and Ricky Dee (who was not charged in the indictment)

was erroneously admitted as a coconspirator statement

under Fed. R. Evid. 801(d)(2)(E). Haynes challenges the

district court’s decision not to give him a minor role

reduction under U.S.S.G. § 3B1.2(b) and its application of
14 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Terry has adopted Black’s conspiracy variance and hub-and4

spoke conspiracy arguments and vice versa.

a four-level enhancement under U.S.S.G. § 3B1.5(2)(B) for

his use of body armor. He also challenges the imposition

of a consecutive five-year sentence for his firearm conviction. Jones argues that the district court erred in applying the use of body armor enhancement because it also

applied an enhancement for abuse of a position of trust.

We will address each of these claims in turn, starting

with the challenges to the proof at trial. 

A. Trial Issues

1. Black and Terry: Conspiracy Variance

Black and Terry first complain that there was a fatal

variance between the conspiracy charged in the indictment and the conspiracy proved at trial. A fatal variance 4

exists “when the facts proved at trial differ from those

alleged in the indictment.” United States v. Dean, No. 08-

3287, 2009 WL 2341676, at *4 (7th Cir. Aug. 5, 2009) (quoting United States v. Longstreet, 567 F.3d 911, 918 (7th Cir.

2009)). To prove a conspiracy variance claim, a defendant

must establish that “the evidence at trial did not

support the jury’s finding that he joined the charged

conspiracy” and that this caused him prejudice. Id. A

conspiracy variance claim is a challenge to the

sufficiency of the evidence, see United States v. Avila,

557 F.3d 809, 815 (7th Cir. 2009), which is reviewed under

a highly deferential standard, United States v. Womack,
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 15

Black’s opening brief conceded that the defendants did not 5

make a rimless hub-and-spoke conspiracy argument and did not

request a multiple conspiracies instruction and, therefore, that

these matters are reviewed for plain error. However, Black’s

reply brief asserts that his position on the standard of review

may have been incorrect because his motion for a new trial

challenged the sufficiency of the evidence. We think Black

was right the first time. We have reviewed his motion for a new

trial and, while it challenges the sufficiency of the evidence,

there is no mention of proof of a rimless hub-and-spoke conspiracy or the lack of a multiple conspiracies instruction. Thus,

we review for plain error. See United States v. Groves, 470 F.3d

311, 324 (7th Cir. 2006). But even if we were to review these

issues under the more stringent de novo standard, the result

would be the same.

496 F.3d 791, 794 (7th Cir. 2007). Viewing the evidence

and drawing all reasonable inferences in the light most

favorable to the government, we consider whether the

evidence is sufficient to support the jury’s verdict. See

Dean, 2009 WL 2341676, at *4. We will “ ‘overturn a conviction only if the record contains no evidence from

which a reasonable juror could have found the defendant

guilty.’ ” Id. (quoting Longstreet, 567 F.3d at 918). As we

have often observed, a defendant faces a “nearly insurmountable” hurdle when challenging the sufficiency of

the evidence. See, e.g., United States v. Hensley, 574 F.3d

384, 390 (7th Cir. 2009) (quotation omitted).

Neither Black nor Terry raised a conspiracy variance

claim in the district court, so their burden is even

heavier; we review for plain error only. See Womack, 496

5

F.3d at 794. We find plain error if an error occurred, the
16 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

error was plain, and the error affected the defendant’s

substantial rights. Id. Thus, our task is to determine

whether the record contains evidence from which a

reasonable juror could have found Black and Terry

guilty of the conspiracies charged in the indictment.

To prove a drug or Hobbs Act conspiracy, the government must establish that two or more persons agreed

to commit an unlawful act, and that the defendant knowingly and intentionally joined in the agreement. Avila,

557 F.3d at 814. Two or more persons conspired together

if they “embraced a common criminal objective, even if

they did not know each other or participate in every

aspect of the crime.” Id. (quotation omitted); see also

Longstreet, 567 F.3d at 919. The government may prove

an agreement among coconspirators by circumstantial

evidence. Avila, 557 F.3d at 816. However, two persons

have not conspired together “when each of the conspirators’ agreements has its own end, and each constitutes

an end in itself.” Id. at 814 (quotation omitted). This

often comes up in a “hub-and-spoke” conspiracy,

where the core conspirator is connected to each of the

coconspirators by a “spoke.” Id. To prove a single conspiracy in the hub-and-spoke context, the government

must establish that a “rim” connects the spokes together;

“otherwise the conspiracy is not one but many.” United

States v. Bustamante, 493 F.3d 879, 885 (7th Cir. 2007). “This

‘rim’ is an agreement to further a single design or purpose.” Avila, 557 F.3d at 814. For a single conspiracy

to exist, the conspirators “who form the wheel’s spokes

must have been aware of each other and must do something in furtherance of some single, illegal enterprise.”

Bustamante, 493 F.3d at 885 (quotation omitted).
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 17

Black and Terry contend that the government’s

evidence established a rimless hub-and-spoke conspiracy. Black claims that he was involved in only four

ripoffs or attempted ripoffs. Terry asserts that the

evidence proved that he was involved in just the

Townsend ripoff. They claim that the government presented no evidence that they were aware of any other

criminal activities involving the other alleged

coconspirators or that they intended to further the

wide conspiracy charged in the indictment. We, however, find no variance with respect to the proof against

either Black or Terry.

As for Black, the evidence established that he was

aware that others were assisting him and Jones in the

ripoffs and attempted ripoffs. The evidence was that

Black agreed with Jones and Erik Johnson to participate

in three ripoffs of drug dealers. Jones would relay information to Black and Johnson about the drug courier—what type and color vehicle he would be driving,

his gender and ethnicity, and where he would be driving. Jones’s information usually panned out. It would be

reasonable for a jury to infer that Black must have known

that Jones was getting what proved to be very accurate

inside information from someone who was also involved

in the ripoff. And once Black and Johnson agreed to

participate in the first attempted ripoff, Jones called

someone in their presence. This evidence supports a

reasonable inference that the person Jones called was

involved in the ripoff and that Black was aware of that

person’s involvement.
18 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Furthermore, after the first successful ripoff, Jones

didn’t pay Black and Johnson immediately, but instead

told them that he’d be in touch regarding payment. This

reasonably suggests that Jones had to have another conspirator sell the drugs to get the cash to pay Black and

Johnson. The wiretap evidence also supports the

finding that Black was aware that Jones was working

with other conspirators in setting up the ripoffs. In a

November 13 call, after Black had agreed to participate

in yet another ripoff, Jones instructed him to “stay

around for a minute, I got to make a call real quick,”

and then called Black back and advised, “we waiting

for him to call back.” These statements made directly

to Black convey that Jones wasn’t working alone in

setting up the ripoff.

The recorded conversations also support a finding

that Terry was aware that Jones was working with other

bad cops. Take, for example, the recorded conversations

shortly after Jerry Montgomery’s arrest on September 8,

2004. That night, Jones called Terry and told him that

“one of my homies just called me . . . [who] [u]sed to

work with me on my team” and reported that “your

[Terry’s] buddy,” Jerry “just got popped off [arrested]”

and “he [Jerry] flew my name.” Jones explained to

Terry that Jerry had called Jones, and Jones advised

Jerry, “you got some . . . green cause he can . . . he will

go away with some of that for sure,” meaning that Jerry

could bribe Jones’s associate to release him. Terry’s response demonstrated that he understood what Jones

meant: Terry asked him: “[Y]ou guys . . . they can’t cut

him loose or nothing can they?” The next day, Jones
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 19

and Terry were discussing Jerry’s situation when Jones

told Terry that Jerry once had taunted him with a bag

of money and that Jones responded by telling Jerry

that he was lucky Jones knew him because he “can call

some cars right now . . . [b]e like, whoop, whoop . . . [a]nd

grab your ass and follow you.” This statement reflected

Jones’s ability to have other officers pull someone over.

In addition, on October 27, 2004, shortly after Jerry got

out of jail, he was pulled over. Jones called Terry to

inform him that one of Jones’s buddies called Jones to

report that they had pulled Jerry over and Jerry was

talking again. Jones assured Terry that his buddies were

“just going to f— with [Jerry] for a minute.” The next day,

Jones told Terry that “[y]our man [Jerry] was talking a

little bit” and “brought up” Jones’s name and also mentioned “B”—Terry’s nickname—in the sense that Jerry

was pointing a finger at “B.” Jones assured Terry that

he was going to meet his buddy and he’d find out what

Jerry had said. Thus, the wiretap evidence permitted a

reasonable jury to find that Terry knew that other bad

cops were assisting Jones in his criminal activities.

Moreover, the evidence clearly established that Terry

was aware of coconspirator Flagg. Both Terry and Flagg

participated with Jones in the Townsend ripoff. Once

Flagg arrived on the scene with Jones and ripped off

Townsend, Terry knew that Flagg was in on Jones’s

criminal activities. And a few days after the ripoff, Terry

asked Jones about “the split” between him and his

“buddy,” meaning Flagg.

The evidence also supported a finding that Terry participated in the conspiracy both before and after the
20 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Townsend ripoff. For one, telephone records for July 21,

the day Jones, Black, and others attempted to rip off

drug couriers near Ashland and 85th Street, show six

calls between Jones and Terry. A few of these were

made within two minutes of calls between Jones’s cell

phone and a cell phone registered to or used by other

members of the conspiracy: Corey Flagg and Erik Johnson.

In addition, on September 14, Jones told James Walker in

a recorded conversation that “B” was coming over to his

house that night and he was supposed “to have something.” Jones added that “when he come . . . it’s serious

business.” Given the evidence, a reasonable jury could

infer that the “something” that Terry would have would

be another opportunity to rip off a drug dealer.

Moreover, in an October 7, 2004, conversation, Jones

was praising Terry’s performance and said, “yeah, you

good. . . . I’m thinking like damn, that man got a demo.”

(Jones testified that “demo” meant criminal activity.)

And Terry asked him, “Which, which one you talking

about?” Terry’s question implies there were several

“demos” and thus supports the inference that Terry

participated in more than one ripoff. Then, on

November 13, 2004, Jones called Terry and Terry said,

“I thought you wanted to link up. . . . [Y]ou had said you

wanted to holler at me this week for something.” Jones

responded, “Oh, yeah . . . I just tried to do something” but

it “didn’t go through.” The jury could reasonably find

that this referred to the plan to rip off the Mexican

drug dealer. Jones added that he hoped it would go

through tomorrow when he got to work. Terry responded,

“you let me know,” which a jury could reasonably infer
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 21

indicated his continued interest in participating in

Jones’s schemes. And even later, on November 23, 2004,

Jones and Terry were recorded discussing plans for

another ripoff.

In arguing that the wiretap evidence does not prove

that he participated in a conspiracy larger than the

single ripoff of Townsend, Terry selectively identifies a

September 22 phone call between Jones and Joel Montgomery in which Joel tells Jones how to contact the “old

girl.” Jones says that he will tell “B” to contact her and

then Jones and Joel agree not to tell “B” that Joel was the

source for the “old girl’s” phone number. Terry also

points to a call between himself and Jones in which Terry

asks Jones if he told Joel about Terry. Jones says he

said Terry wanted Townsend’s phone numbers, but

claimed not to know why Terry wanted them. While

Terry submits that these calls show that Jones was

keeping him in the dark about the extent of his criminal

activities, the jury was in the best position to weigh this

evidence against the other evidence that reasonably

suggests that Terry’s involvement ran deeper than he

claims.

The government’s evidence supports the finding that

Terry, Black, Jones, Flagg, and other coconspirators

were acting in furtherance of a single, illegal purpose.

Terry set up drug dealers and couriers to be ripped off,

and Jones, Black, and other corrupt cops performed the

stops, invasions, and seizures of the drugs and money.

This was not a rimless hub-and-spoke conspiracy.

Terry asserts that there was no evidence that he had

any direct communication with any coconspirator
22 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Even if there had been a variance, it would not necessarily 6

require reversal of their convictions. Bustamante, 493 F.3d at 885.

The “prosecutor may elect to proceed on a subset of the allegations in the indictment, proving a conspiracy smaller than the

one alleged.” Id. (quotation omitted). The government easily

proved that Black and Terry at the very least joined a subset

of the alleged conspiracies.

other than Jones. However, “[c]oconspirators do not

have to have contact with, or even know, all of the other

conspirators.” United States v. Frazier, 213 F.3d 409, 415 (7th

Cir. 2000). And coconspirators need not participate in

every aspect of the scheme. Avila, 557 F.3d at 814. The

evidence supported the finding that Terry was aware

that others were assisting Jones in planning and conducting the ripoffs; Terry did not have to talk with them

to gain that knowledge.

To find for Black and Terry on their conspiracy

variance claims, we would have to reweigh the evidence

and second-guess the jury’s credibility determinations.

In the absence of truly exceptional circumstances, and

they have not pointed to any, we cannot do so. See Dean,

2009 WL 2341676, at *5. Accordingly, we conclude that

there was sufficient evidence from which a reasonable

jury could have found Black and Terry guilty of the

conspiracies with which they were charged in the indictment.6

Black and Terry also suggest that the district court erred

in failing to give a multiple conspiracies instruction.

Because neither of them requested a multiple con-
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 23

spiracies instruction they forfeited this challenge on

appeal and our review is for plain error only. See

Longstreet, 567 F.3d at 921. We find no error—plain or

otherwise—in the failure to give a multiple conspiracies

instruction in this case. As discussed, the evidence

was sufficient to establish Black’s and Terry’s participation in the overall conspiracy charged in the indictment.

2. Black: Sufficiency of Evidence

for § 924(c) Conviction

Black argues that the evidence was insufficient to

sustain his firearm conviction under § 924(c). He doesn’t

dispute that he carried a firearm during the attempted

ripoff; he disputes only whether he carried the firearm

“in relation to” the attempted ripoff. Section 924(c)

requires a nexus between the firearm and the alleged

crime; mere possession of a firearm by a person engaged

in criminal activity is insufficient. United States v. Harvey,

484 F.3d 453, 457 (7th Cir. 2007). Black claims that the

evidence failed to establish any nexus between his

weapon and the July 21 attempted ripoff. (Recall the

deferential standard of review for such challenges and

the high hurdle a defendant must clear to gain relief on

such an appellate challenge. See Hensley, 574 F.3d at 390.)

The government responds that Black forfeited this challenge by failing to raise it when moving for judgment

of acquittal. Black doesn’t argue otherwise, so we

review for plain error. Under this standard, a defendant

must show “that a manifest miscarriage of justice will

occur if his conviction is not reversed.” Id. at 390-91
24 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Black makes a few arguments related to the possessed “in 7

furtherance of” prong, but the government relies on the

carried “during and in relation to” prong.

(quotation omitted). In other words, the record must be

“devoid of evidence pointing to guilt” or “the evidence

on a key element” must have been “so tenuous that a

conviction would be shocking.” Id. (quotation omitted).

Black can’t meet this standard.

The government argues that the evidence was

sufficient to prove that Black carried a firearm during

and in relation to the July 21, 2004 attempted ripoff.

7

We addressed a similar argument in United States v.

Moore, 363 F.3d 631 (7th Cir. 2004), rev’d sub nom. by Young

v. United States, 543 U.S. 1100 (2005). In that case, the

defendant police officers were convicted under § 924(c)

for carrying firearms while engaging in acts of robbery

and extortion and while escorting drug couriers around.

On appeal, they argued that it was just a coincidence

that they carried their service revolvers during the acts

for which they were convicted—they were cops and cops

had to carry weapons. We rejected their argument, concluding that the evidence established that they carried

guns in relation to a drug trafficking offense. Id. at 640-41.

We reasoned that just as a police badge and so-called

“cop talk” were essential to their drug escort activities, so

were their weapons. Id. at 640. The defendants were

hired “to play the role of a police officer, which necessarily entails carrying a service revolver” and “to use

their status as police officers, with all the trappings, to
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 25

protect [the] drug couriers.” Id. at 641. This we concluded was sufficient to support their convictions for

carrying a gun in relation to a drug trafficking crime. Id.

We reached a similar result in United States v. Patterson,

348 F.3d 218 (7th Cir. 2003), where the defendant police

officer was convicted of a firearms offense in relation to

a drug trafficking offense. Patterson did not dispute that

he possessed his service revolver while attempting to

steal narcotics and money. He argued, however, that

the evidence failed to prove that he carried the firearm

for the purpose of accomplishing the ripoff. Id. at 226.

We said that the “in relation to” language required that

the firearm “ ‘have some purpose or effect with respect

to the drug trafficking crime . . . [and] the gun at least

must facilitate, or have the potential of facilitating, the

drug trafficking offense.’ ” Id. (quoting Smith v. United

States, 508 U.S. 223, 238 (1993) (internal quotations and

alterations omitted)). We found this standard satisfied

for two reasons. First, the firearm was necessary for

the plan that required the defendant to pretend to be

performing a legitimate police raid, which required

legitimate-looking officers, which in turn, required them

to carry firearms. And, second, we concluded that the

jury could have found that the firearm provided the

defendant with a needed sense of security. Id. at 227.

The reasoning in Moore and Patterson applies to Black’s

case as well. Black’s participation in the conspiracy was

sought because he was a police officer who wore a uniform, had a badge, and could effect traffic stops and

seizures, and conduct other police work. A reasonable
26 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

jury could have found that Black carried his police handgun in order to make it appear that he was a legitimate

cop performing legitimate police work. Black contends

that there was no evidence that his weapon was

exposed, drawn, or brandished during the attempted

ripoff. That makes no difference. A reasonable jury could

still conclude that he carried his gun in an effort to

appear to be a legitimate police officer, performing a

legitimate stop. At the least, a reasonable jury could

have found that the gun provided Black with a sense

of security, something that would come in handy when

one is attempting to rip off a drug dealer. We therefore

find that the evidence was sufficient to establish the

required nexus between Black’s weapon and the July 21

attempted ripoff.

Black next suggests that the § 924(c) charges in Counts

Four and Seven were duplicitous, requiring reversal of his

§ 924(c) convictions. He also claims that the district court

conflated the possessed “in furtherance of” and used or

carried “during and in relation to” prongs of § 924(c).

Counts Four and Seven charged that Black “knowingly

possessed a firearm in furtherance of, and used, carried,

and brandished a firearm during and in relation to, a

drug trafficking crime . . .” in violation of § 924(c).

The court’s jury instructions on Counts 4 and 7 read:

To prove defendant Black guilty of the weapons

offense as charged . . . , the government must prove

the following propositions:

First, that the defendant committed one of the

following crimes: [as charged in the relevant

Count]; and
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 27

Second, that the defendant knowingly possessed

a firearm in furtherance of, or knowingly used or

carried a firearm during and in relation to, that

crime.

“An indictment is duplicitous if it charges two or more

offenses in a single count.” United States v. Pansier, No. 07-

3771, 2009 WL 2448414, at *7 (7th Cir. Aug. 12, 2009).

Black did not raise a timely challenge to the indictment

in the trial court, so again, we review for plain error. See

United States v. Presbitero, 569 F.3d 691, 698 (7th Cir. 2009).

Under this standard, “we will reverse only if there was

an error, that was plain, that affected the defendant’s

substantial rights, and that affected the fairness, integrity,

or public reputation of the judicial proceedings.” Id.

We find no plain error here.

Black cites United States v. Savoires, 430 F.3d 376 (6th

Cir. 2005), which states that § 924(c) criminalizes two

separate and distinct offenses: (1) a “use” or carriage

offense, which has “during and in relation to” as “its

standard of participation,” and (2) a “possession” offense,

which has “in furtherance of” as its standard. Id. at 379-

80 (quotation omitted). We, however, have not decided

that § 924(c) criminalizes two separate and distinct offenses. See Harvey, 484 F.3d at 456 (noting that whether

we construe § 924(c) as creating one offense or two, its

separate parts criminalize similar behavior). And our

case law suggests that § 924(c) charges one offense

that may be committed in more ways than one. The

indictment in Moore charged the defendants with using

and carrying a firearm in relation to a crime of violence
28 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

or drug trafficking offense in violation of § 924(c). One

jury instruction tracked the indictment’s language.

Another stated that the government had to prove “that

the defendant used or carried a firearm during and in

relation to” the drug trafficking crime or crime of violence.

The defendants challenged the instructions, arguing, inter

alia, that they were deprived of a unanimous verdict.

Moore, 363 F.3d at 639. We found no error, explaining that

“where a statute defines two or more ways in which an

offense may be committed, all may be alleged in the

conjunctive in one count . . . . And proof of any one of

those acts conjunctively charged may support a conviction.” Id. at 640 (quoting United States v. LeDonne, 21 F.3d

1418, 1427 (7th Cir. 1994)). We thus concluded that

the indictment charging the defendants with using and

carrying firearms was not duplicitous and found no

error in the instructions. Id.

Here, the jury instructions covered the three ways in

which § 924(c) may be violated: (1) possessed in furtherance of, and (2) used or (3) carried during and in relation

to the drug trafficking crime. Under Moore, the three

ways in which § 924(c) can be committed may be alleged

in the conjunctive in one count, as they were here, and

proof of any one of them will support Black’s conviction.

Therefore, we conclude that Counts Four and Seven

were not duplicitous and there was no error in the

§ 924(c) instructions.

Even assuming error in those instructions, the probability that the error affected the outcome of this case is

nil. Of the three ways that § 924(c) may be violated, the
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 29

“carry” prong is the lowest standard of participation.

“Carry” includes carrying a firearm directly on the

person or in a vehicle. Muscarello v. United States, 524 U.S.

125, 131 (1998). “Uses . . . a firearm” is construed narrowly

and limited to the “active employment” of a firearm.

Muscarello, 524 U.S. at 136 (quotation omitted). And “to

the extent that the phrase ‘in furtherance of’ differs at all

from the phrase ‘during and in relation to,’ the former

wording logically connotes a higher standard of participation.” Harvey, 484 F.3d at 457. A finding that Black possessed a firearm in furtherance of, or used a firearm

during and in relation to a drug trafficking crime,

would encompass a finding that he carried a firearm

during and in relation to that crime. Thus, any error

in instructing the jury on all three prongs of § 924(c) was

harmless.

In a footnote in his reply brief, Black for the first time

complains of sentencing manipulation and disparity,

noting that Johnson received a nine-year sentence for

the exact same offenses that resulted in his forty-year

sentence. He invites the government to explain the disparity. To the extent Black attempts to raise an

appealable issue based on sentencing manipulation, he

has waived it by failing to assert it in his opening brief

and by making it only in a footnote, in passing, and

without any discussion or citation to pertinent legal

authority. United States v. Boisture, 563 F.3d 295, 299 n.3

(7th Cir. 2009) (finding waiver of argument raised for

the first time in appellant’s reply brief); United States v.

Hook, 471 F.3d 766, 775 (7th Cir. 2006) (making clear that

perfunctory and undeveloped arguments and arguments
30 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

unsupported by pertinent authority are waived). This

isn’t sentencing manipulation anyway. See United States

v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006). It seems

that much of the difference between Black’s and

Johnson’s sentences can be attributed to the fact that

Johnson pled guilty to two counts pursuant to a plea

agreement, whereas Black did not—he was convicted of

six counts following a jury trial; and Johnson was given

a reduction for acceptance of responsibility; Black was

not. It is commonly understood that defendants who

plead guilty typically receive a lesser sentence than

those who don’t. 

3. Terry: Evidence of Drug Quantity

& Coconspirator Statements

Terry contends that the district court erred in denying

his motion for judgment of acquittal and motion for a

new trial because the government presented insufficient

evidence to prove that he possessed at least five

kilograms of cocaine. In support, he first argues that the

court erred in admitting evidence of the October 7, 2004,

telephone call between Jones and Ricky Dee. He also

argues that the other trial evidence was insufficient to

establish the drug quantity.

The district court admitted the evidence of the Jones-Dee

call as coconspirator statements under Fed. R. Evid.

801(d)(2)(E). In the recorded conversation, Jones tells Dee

that he had “a five, five demo with my man.” When Dee

asked Jones where he got “that lick,” Jones said that “one

of my homies who, uh, you know be grabbing ten of
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 31

them at a time and s–t. He decided to woo-wop this

broad this time, you know?” Presumably, the homie was

Terry, the “ten” was ten kilograms, the “broad” was

Townsend, and the “five, five” was the division between

Jones and Terry of the seized drugs.

Under Rule 801(d)(2)(E), a “statement is not hearsay if . . .

[t]he statement is offered against a party and is . . . a

statement by a co-conspirator of a party during the

course and in furtherance of the conspiracy.” For

coconspirator statements to be admissible, the government must prove by a preponderance of the evidence

that “(1) a conspiracy existed, (2) the defendant and the

declarant were members of the conspiracy, and (3) the

statement(s) sought to be admitted were made during

and in furtherance of the conspiracy.” United States v.

Alviar, 573 F.3d 526, 540 (7th Cir. 2009). According to

Terry, the government failed to prove the third prong.

Whether the Jones-Dee statements were properly admitted under Rule 801(d)(2)(E) turns on whether the

evidence was sufficient to prove that Terry joined the

overarching conspiracy charged in the indictment. As

noted above, it was. That Jones was a member of that

conspiracy is undisputed—he was the ringleader. So we

consider whether the Jones-Dee statements were made

during and in furtherance of the conspiracy.

The call was made on October 7, 2004, well within the

time frame of the conspiracy, which continued at least

until the end of November 2004, if not later. Thus, the

statements satisfy the “during” requirement. Statements

intended to recruit other conspirators qualify as state-
32 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

But even if erroneous, any error was harmless given the 8

other evidence, described below, of the quantity of cocaine

stolen from Townsend.

ments in furtherance of a conspiracy. United States v.

Skidmore, 254 F.3d 635, 638 (7th Cir. 2001). In the call, Jones

talks about prior ripoffs and arguably was trying to recruit

Dee to buy drugs seized in the conspiracy. Though Dee

was not a conspirator, his statements provided the full

context for the conversation. Thus, the Jones-Dee statements were made in furtherance of the conspiracy, and

the district court did not err in admitting them.8

Terry claims that the admission of the Jones-Dee call

prejudiced him because it was the government’s principal

evidence that the Townsend ripoff occurred and

involved more than five kilograms of cocaine. First of

all, the drug quantity is not an element of the offenses.

See 21 U.S.C. §§ 841(a), 846; see also United States v.

Kelly, 519 F.3d 355, 363 (7th Cir. 2008). It is relevant to

sentencing. If the evidence failed to establish that Terry

possessed five or more kilograms of cocaine, and the

district court sentenced him above the default

twenty-year maximum applicable to any amount of

cocaine, see 21 U.S.C. § 841(b)(1)(C), his remedy would not

be a new trial but a remand for re-sentencing subject to

the default statutory maximum term of twenty years.

Kelly, 519 F.3d at 363. But the district court sentenced

Terry to 168 months, which is below that statutory maximum, so “Apprendi [v. New Jersey, 530 U.S. 466 (2000)] is not

implicated,” id., and Terry has not shown prejudice.
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 33

Furthermore, as Terry acknowledges, the government

presented other evidence of the quantity of drugs

involved in the Townsend ripoff. This included the September 22, 2004 wiretap conversation between Jones

and Joel Montgomery while Jones was planning the

Townsend ripoff in which Jones discussed with Joel how

much cocaine Terry should get from Townsend, and they

discussed five, seven, ten and twenty kilograms of cocaine.

The evidence also included Flagg’s testimony that:

(a) Jones told him that Jones and Terry had planned to

order ten kilograms from Townsend; (b) inside the bag

taken from Townsend’s car Flagg saw two bricks of

what he believed were cocaine and saw several

additional objects of like shape beneath the bricks, large

enough to be ten kilograms; (c) Flagg believed that the

bag contained ten kilograms; and (d) Jones told Flagg

that Jones had given five kilograms to Terry and kept

five for himself.

Terry asserts that because the Jones-Joel call occurred

before the Townsend ripoff, it did not reflect the

quantity of drugs actually stolen. True, the call did not

reflect the historical fact of the quantity of drugs that was

stolen from Townsend. But the statements about how

much “B” should ask Townsend for support a reasonable inference as to the amount actually taken. The

fact that Terry was going to try to buy X quantity from

Townsend raises a reasonable inference that Townsend

brought X quantity to the transaction with Terry which

in turn raises a reasonable inference that X was the quantity that was stolen from her.
34 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Terry also suggests that the Jones-Joel call supports a

finding that the drug amount involved in the Townsend

ripoff was less than ten kilograms. But he does not

dispute that every amount Joel mentioned was greater

than five kilograms. And Terry ignores that Jones stated

that Townsend could handle a “dub,” which Joel

clarified meant “twenty,” (kilograms), and Joel answered

that she could. The Jones-Joel phone call thus supports

Flagg’s testimony that he saw what he believed was ten

kilograms of cocaine.

Terry challenges the basis for Flagg’s personal knowledge as to the drug quantity. However, Terry had the

opportunity to cross-examine Flagg, and did so. Sure,

Terry can claim that Flagg is incredible, and he may not

be a choir boy, but it is not for us to judge his credibility.

See Dean, 2009 WL 2341676, at *5. That was for the jury

to decide. Terry asserts that Jones did not pay Flagg an

amount commensurate with ripping off ten kilograms

of cocaine. Terry claims it would be unreasonable to

find that Jones skimped Flagg (who didn’t get what he

expected to get) and skimped Joel (who testified that he

got nothing from the ripoff), but was generous to Terry.

A jury could reasonably infer that Jones’s “generosity” to

Terry reflected Terry’s role in the Townsend ripoff and

Jones’s trust of Terry. Anyway, Terry offers us nothing

to show why it would be reasonable to expect Jones, a

crooked cop, to treat his coconspirators fairly. Jones

wasn’t a man of principle.

Terry also complains that the prosecutor asked

numerous improper leading questions of Flagg, testifying
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 35

as to the amount of drugs involved in the ripoff. For

example, government counsel asked, “Did you ever

receive any more money from [Jones] after that ripoff of

the 10 kilos of cocaine?” Terry acknowledges that he did

not object to any of the questions as leading. We have

considered them and disagree that they were improper

or leading. We also note that Flagg had already testified

that he observed ten kilograms of cocaine before the

government asked the allegedly improper questions.

We conclude that the evidence was sufficient to

establish beyond a reasonable doubt that Terry possessed

five kilograms or more of cocaine.

4. Terry: Foreseeability that

Flagg Would Carry a Firearm

Terry contends that the evidence is insufficient to

support his § 924(c) conviction because Flagg’s presence

at the Townsend ripoff was unexpected. He argues that

it was not reasonably foreseeable to him that a

coconspirator would have a weapon during the ripoff.

The government offered no evidence, and did not

argue, that Terry himself carried a weapon during the

ripoff. However, Terry can be held liable for the acts of

his coconspirators that were both in furtherance of the

conspiracy and foreseeable to him. United States v.

Pinkerton, 328 U.S. 640 (1946). As stated, we review challenges to the sufficiency of the evidence under a

deferential standard, and a defendant making such a

challenge faces a high hurdle. Hensley, 574 F.3d at 390.

However, Terry did not raise this challenge below, so the
36 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

bar is even higher for him, and we review for plain

error. See id. He can’t clear the bar.

Terry first argues that the government failed to prove

that Flagg used or carried a weapon in relation to or

possessed a weapon in furtherance of the Townsend

ripoff. However, the evidence supports the finding that

Flagg carried a firearm during and in relation to the

Townsend ripoff. As noted, “carry” under § 924(c)

includes carrying a firearm directly on the person.

Muscarello, 524 U.S. at 131. Flagg’s testimony was that he

had his firearm on his waistband during the Townsend

ripoff.

For the same reasons that the jury could reasonably

find that Black carried a firearm in relation to his criminal

activities, discussed above, a reasonable jury could

find that Flagg carried his firearm in relation to the

Townsend ripoff. Flagg, like Black, was recruited to join

the conspiracy because he was a police officer who

could make the stops, home invasions, arrests, and

seizures appear to be legitimate police work. Police

officers carry guns. More specifically, Flagg was asked

to participate in the Townsend ripoff for this very reason.

A reasonable jury could find that Flagg’s gun was necessary for the plan that required him to pretend to be performing a legitimate stop, which required him to look

like a legitimate cop, which in turn, required him to wear

a gun. In addition, the jury also could have concluded

that Flagg’s gun provided him with a sense of security,

which would have come in very handy in ripping off a

known drug dealer of such a large quantity of cocaine.
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 37

Terry argues that the evidence was insufficient because

Flag was off duty, driving an unmarked squad car, wearing

plain clothes, and not wearing a tactical vest. We do not

understand how any of these circumstances make it

unreasonable for a jury to conclude that Flagg carried

his firearm in relation to the ripoff. As the government

argues, the fact that Flagg was off duty raises a reasonable inference that it was not by mere chance that he

had his CPD weapon on his person during the ripoff. And

the absence of a police uniform or bulletproof vest seems

to make it more likely that Flagg needed the gun to make

it look as if he were a legitimate cop performing a legitimate stop and seizure. Terry also suggests that the evidence was insufficient because Flagg did not show his

weapon and there was no evidence that Townsend even

saw his gun. But, as mentioned, it makes no difference

that the gun was neither exposed, drawn, nor brandished.

Regardless of whether Flagg displayed his gun to

Townsend, the jury could reasonably conclude that the

presence of his gun in his waistband provided him

with security—one of the reasons we found the evidence

sufficient to establish that the Patterson defendant

carried his firearm in relation to the drug trafficking

crime. See 348 F.3d at 227.

The evidence was also sufficient to establish that it

was reasonably foreseeable to Terry that a coconspirator

would have a weapon during the Townsend ripoff. Terry

submits that Jones cut him off from knowing what the

other conspirators were doing. Terry complains that he

didn’t even know that Flagg was going to be there. According to Terry, he only spoke with Jones who by then
38 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

had been stripped of his police powers and couldn’t carry

a firearm. But the evidence need not establish that Terry

knew that Flagg would carry a firearm. Nor does the

government have to prove that Terry knew that a

coconspirator would carry a firearm. The evidence need

only establish that it was reasonably foreseeable to Terry

that a coconspirator would carry a firearm.

The evidence was sufficient to support the finding

that Terry arranged to buy ten kilograms of cocaine

from Townsend and later met with her to set her up to be

ripped off. Terry knew that he had arranged to buy a

large quantity of cocaine, and he knew that he was

setting Townsend up to be ripped off. Thus, a rational

jury could infer that it was reasonably foreseeable to him

that a firearm would be carried in relation to the ripoff.

See United States v. Gutierrez, 978 F.2d 1463, 1468 (7th Cir.

1992) (“The illegal drug industry is a dangerous and

violent business, and when an individual conspires to

take part in a transaction involving a large quantity of

cocaine (such as [one] kilogram . . .) it is reasonably

foreseeable that a firearm would be carried.”). The fact

that Terry knew that Jones couldn’t carry a firearm

made it reasonably foreseeable to Terry that someone

else would be involved and would carry a gun. Terry

need not have known that person’s identity ahead of time.

Finally, Terry complains that his § 924(c) conviction was

based solely on the testimony of Flagg, who was an

admitted liar and incredible. To address this claim, we

would have to second-guess the jury’s credibility determination, which we cannot do in the absence of truly
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 39

exceptional circumstances. See Dean, 2009 WL 2341676,

at *5. Terry has not identified such circumstances. We

therefore conclude that a rational jury could have

found sufficient evidence to convict Terry under § 924(c).

B. Sentencing Issues

1. Haynes: Minor Role Reduction

Under U.S.S.G. § 3B1.2(b)

Haynes challenges the district court’s decision that he

was not entitled to a minor role reduction in his offense

level under U.S.S.G. § 3B1.2(b). We review the district

court’s interpretation and application of the Sentencing

Guidelines de novo, United States v. Abbas, 560 F.3d 660, 662

(7th Cir. 2009), and we review the decision to deny a

defendant a minor role reduction for clear error,

United States v. Panaigua-Verdugo, 537 F.3d 722, 724 (7th

Cir. 2008). We will find clear error only when our review

of the evidence leaves us “with a definite and firm conviction that a mistake has been committed.” Id. (quotation

omitted). A district court’s minor role decision is rarely

reversed because that court is in the best position to

evaluate the defendant’s role in the criminal activity. Id.

Under § 3B1.2(b), a defendant’s offense level can be

reduced by two levels if he was a minor participant in

the criminal activity. A defendant is a “minor participant”

if he “plays a part in committing the offense that

makes him substantially less culpable than the average

participant” and he “is less culpable than most other

participants, but [his] role could not be described as
40 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Gonzalez uses the arguably more permissive “should” rather 9

than the mandatory “must” that Haynes uses.

minimal.” United States v. Gonzalez, 534 F.3d 613, 616 (7th

Cir. 2008) (quotation omitted); see also U.S.S.G. § 3B1.2, cmt.

n.3(A) & n.5. “ ‘However, where each person was an

“essential component” in the conspiracy, the fact that

other members of the conspiracy were more involved

does not entitle a defendant to a reduction in the offense

level.’ ” Gonzalez, 534 F.3d at 616 (quoting United States v.

Gallardo, 497 F.3d 727, 741 (7th Cir. 2007)). The defendant

bears the burden of showing by a preponderance of

the evidence that he is entitled to the minor role adjustment. Id.

Haynes contends that the district court erred in not

applying the minor role adjustment because it did not

compare his role in the conspiracy to that of the average

member. He also argues that the record fails to support

the finding that he was necessary to the conspiracy. The

government agrees that a defendant’s role should be

compared to that of the average member of the

conspiracy, but maintains that Haynes did not play a

minor role. Although a defendant’s “role should be

compared to that of the average member of the conspiracy,” id. (quotation omitted), we have not required

9

district courts to articulate elaborate comparisons on

the record. Our cases emphasize that the comparison

should be made to an average member, not to the leaders. E.g., id.; Gallardo, 497 F.3d at 741.
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 41

In denying Haynes a minor role reduction, the district

court reasoned that his participation

was obviously necessary as a police officer. These

things could not have been done or would have

been much more difficult to do and much more

dangerous were the participants not police officers. . . . And I cannot envision where the use of the

authority and the power vested in a police officer

in the commission of a crime is going to be deemed

minor.

Haynes argues that his role as a police officer had no

obvious relevance to his role in the offense as compared

to others. But which others? Haynes acknowledges that

the conspiracy included five police officers and “a

number of laymen.” We understand the district court’s

comments to mean that none of the five conspiring

police officers could be considered a minor participant.

Each defendant officer’s participation was essential to

the success of the conspiracy. No matter which ripoff or

attempted ripoff is considered, a police officer’s presence

was essential. It is even fair to say that the presence of

two officers was necessary to convey the impression to

the drug dealers and couriers that these were legitimate

cops making legitimate stops and conducting legitimate

searches. After all, the record establishes that at least

two officers assisted in executing each illegal stop and

home invasion for which Haynes was sentenced. That

some of the other defendant officers were more involved

in the conspiracy than Haynes does not entitle him to

a reduction as a minor participant. See Gonzalez, 534 F.3d

at 616.
42 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

We have observed that the district court is best suited

to address the role in the offense adjustment,

particularly “after becoming intimately acquainted with

the roles of the members of a drug conspiracy during [a

lengthy] trial.” United States v. McGee, 408 F.3d 966, 987

(7th Cir. 2005). Although Haynes pled guilty, Black and

Terry were tried to a jury—before the same judge, Judge

Guzmán, who sentenced Haynes. Over the course of the

nine-day trial, Judge Guzmán was able to become quite

knowledgeable about the various roles played by the

conspiracy’s members and he was thus able to draw

comparisons between their roles in the conspiracy. So

even though the court did not articulate a comparison

of Haynes’ role in the conspiracy to the role of the

average member, we feel confident that he made the

comparison in deciding whether Haynes was entitled to

a minor role reduction.

In addition, the presentence report’s calculation of

Haynes’ offense level was based on: (1) a ripoff of a drug

dealer of one-half kilogram of cocaine and $7,000 in

2003; (2) the failed home invasion of a drug dealer in

2003; (3) the attempted ripoff on July 21, 2004; and (4) the

failed Jerry Montgomery home invasion in September

2004. In his plea agreement, Haynes admitted to having

a direct and active involvement in all four of these

events. The conduct to which he admitted establishes

that in each instance he played an essential role as a police

officer making vehicle stops, seizing cocaine, and performing home invasions. Haynes admitted that during

the invasion of Jerry Montgomery’s home, he spoke with

and displayed his badge to a neighbor who was ques-
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 43

tioning Haynes and Flagg about the legitimacy of their

presence in the building. The presentence report also

indicated that Haynes was aware of the entirety of

the offenses and that he communicated with his

codefendants while planning and conducting the offenses. So, too, Haynes admitted in his plea agreement

to participating with Jones and Flagg in some of the

planning to invade Jerry’s home.

Haynes maintains that the court’s reasoning for not

giving him a minor role reduction implies impermissible

double counting because the court also relied on his use

of authority and power in applying an enhancement

for abuse of trust. Impermissible double counting occurs

when the district court imposes “two or more upward

adjustments . . . when both are premised on the same

conduct.” United States v. Blum, 534 F.3d 608, 612 (7th

Cir. 2008); see also United States v. Shearer, 479 F.3d 478,

484 (7th Cir. 2007) (stating that “impermissible double

counting . . . occurs when identical conduct justifies two

upward adjustments under the Guidelines” (quotation

omitted)). The government argues that the court did not

engage in double counting because the court made only

one upward adjustment based on the same set of facts.

We agree. Haynes is complaining that the court did not

make a downward adjustment. Haynes offers no

authority to suggest that declining to adjust an offense

level downward based on the same facts that support

an enhancement would constitute impermissible double

counting. We have found some authority to the contrary.

See United States v. Elliot, 307 Fed. Appx. 41, 43 (9th Cir.

2009) (unpublished) (“It is not impermissible double

counting to consider [defendant’s] obstruction of justice
44 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

conduct both in imposing a sentencing enhancement

and as a basis for denying a discretionary downward

departure under the Sentencing Guidelines.”). Therefore,

we find no impermissible double counting in Haynes’s

case.

Moreover, “[t]he presence of some factual overlap is

not sufficient to trigger the prohibition on double

counting . . . where the two enhancements address

distinct aspects of a defendant’s conduct.” Blum, 534

F.3d at 612. Here, the facts supporting the adjustment

for abuse of trust are only a subset of the complete set

of facts which support the finding that Haynes did not

play a minor role. His status as a police officer gave

him the apparent authority to conduct what would seem

at first glance to be legitimate stops, thereby abusing the

trust placed in him. But as a police officer Haynes had

special skills and experience that allowed him to make

the illegal stops and home invasions. And the gun, vest,

uniform and other accouterments of law enforcement

came in quite handy during the execution of ripoffs. So

the “on the ground” aspects of his policeman status

made him an integral, not minor, actor in the ripoffs.

Thus, even if applying one enhancement and refusing to

make a downward adjustment could be considered

“double counting,” there was no double counting here.

Haynes’ role in the conspiracy was not as great as some

of his coconspirators’, but it was essential. He has not

shown that he was a minor participant. Therefore, we

reject his challenge to the district court’s finding that he

was not entitled to a reduction in offense level under

§ 3B1.2.
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 45

2. Haynes and Jones: Use of Body Armor

Under U.S.S.G. § 3B1.5(2)(B)

Haynes argues that the court erred in applying a fourlevel enhancement for use of body armor because it

did not adequately explain why it imposed a four-level

adjustment instead of two, which he had argued was

appropriate. He does not challenge the factual finding

that he “used” body armor. Haynes claims that it is

unclear from the Guideline what behavior falls under

§ 3B1.5(2)(B) that warrants more severe punishment

than that under § 3B1.5(2)(A).

U.S.S.G. § 3B1.5 states:

If—

(1) the defendant was convicted of a drug trafficking crime or a crime of violence; and

(2)(apply the greater)—

(A) the offense involved the use of body

armor, increase by 2 levels; or

(B) the defendant used body armor during

the commission of the offense, in preparation for the offense, or in an attempt to

avoid apprehension for the offense, increase by 4 levels.

Section 3B1.5(2)(A) applies when the offense involved the

use of body armor, for example, when a codefendant used

body armor. Section 3B1.5(2)(B), however, applies when

the defendant himself used body armor. There is nothing

ambiguous about (2)(A) and (2)(B) when read together;

the two subsections are quite different.
46 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

Jones doesn’t challenge the enhancement for abuse of trust, 10

only the enhancement for use of body armor.

Haynes admitted that he wore his bulletproof vest

during the invasion of Jerry’s house. Section 3B1.5(2)

directs the sentencing judge to “apply the greater” of (2)(A)

and (2)(B). The judge correctly applied § 3B1.5(2)(B)

rather than §3B1.5(2)(A) here. He was not required to

give a more extensive explanation than he did for

applying the four-level enhancement.

For his part, Jones contends that the district court

miscalculated his offense level by applying enhancements

both for an abuse of trust under § 3B1.3 and for use of body

armor under § 3B1.5. He argues that this was error

10

because § 3B1.3 states that the “adjustment may not be

employed if an abuse of trust or skill is included in the

base offense level or specific offense characteristic.”

According to Jones, the body armor was part of his uniform as a CPD officer and a specific offense characteristic.

He claims that the defendant officers wore body armor

only to make their targets believe they were legitimate

CPD officers engaged in legitimate law enforcement.

His argument ignores that a “specific offense characteristic” has a particular meaning in the Guidelines,

referring to adjustments to the base offense level contained

in Chapter Two. U.S.S.G. ch. 2, introductory cmt. (“Chapter

Two . . . is organized by offenses . . . . Each offense has a

corresponding base offense level and may have one or

more specific offense characteristics that adjust the

offense level upward or downward.”). Chapter Three
Nos. 08-1466, 08-1608, 08-1616 & 08-1617 47

Adjustments are not “specific offense characteristics.” See

U.S.S.G. § 1B1.1(b), (c). Section 2D1.1, the offense

Guideline applicable to Jones’s offense of conviction,

does not have a specific offense characteristic for abuse of

trust or use of body armor. See U.S.S.G. § 2D1.1(b). Instead,

the adjustments for abuse of trust and use of body armor

were made under Chapter Three, which are not specific

offense characteristics.

Furthermore, Jones gives us no reason to equate the

use of body armor with “an abuse of trust” in this case.

The district court rejected Jones’s argument that he used

body armor only to make it look like he was a legitimate

officer engaged in legitimate law enforcement. The court

drew the reasonable inference that the body armor was

being used for its primary purpose—for protection. The

fact that the body armor may also have been used to

identify the defendant officers as legitimate Chicago cops

engaged in lawful police activity doesn’t make the enhancement inappropriate. See United States v. Barrett, 552

F.3d 724, 728 (8th Cir. 2009) (“The ability of body armor

to serve dual purposes does not make § 3B1.5 inapplicable

where the facts show one purpose could be to protect

the wearer from gunfire.”). We therefore find no error

in the district court’s application of both § 3B1.3 and

§ 3B1.5 in determining Jones’s sentence.

3. Argument Preservation

Haynes also argued that the district court erred in

imposing a 60-month consecutive sentence for his

firearm conviction under 18 U.S.C. § 924(c)(1)(A) because
48 Nos. 08-1466, 08-1608, 08-1616 & 08-1617

he was already subject to a ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(ii)(II). He concedes

that United States v. Easter, 553 F.3d 519, 525-26 (7th Cir.

2009), petition for cert. filed (U.S. Mar. 26, 2009) (No. 08-

9560), and petition for cert. filed (U.S. May 20, 2009) (No. 08-

10584), forecloses this argument. He now seeks to

preserve the issue for review in the Supreme Court.

The government submits that Haynes waived the

argument by requesting the court to impose a consecutive

five-year sentence. Haynes did not challenge whether

a consecutive sentence was appropriate, but we do not

understand him to have been affirmatively requesting

such a sentence. His challenge was to the length of the

sentence under § 924(c)—the government argued for the

seven-year minimum—not to whether a consecutive

sentence was proper in the first instance. We find no

waiver of an objection to the consecutive nature of the

sentence; the argument was forfeited instead. Thus,

Haynes has preserved the argument, although it is foreclosed by our binding precedent.

III. Conclusion

None of the challenges to the evidence, the convictions,

or sentences raised by these defendants earn them

any relief. The district court’s judgments are AFFIRMED.

9-17-09