United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 7, 2008

Decided August 14, 2008

Before

RICHARD D. CUDAHY, Circuit Judge

           MICHAEL S. KANNE, Circuit Judge

           ILANA DIAMOND ROVNER, Circuit Judge

No. 07‐3546

UNITED STATES OF AMERICA,

           Plaintiff‐Appellee,

v.

RICARDO JENKINS

Defendant‐Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 07‐CR‐072

J.P. Stadtmueller,

Judge.

O R D E R

Police, acting on a warrant, searched Ricardo Jenkins’s house and found nearly 25

grams of crack cocaine, a substance they believed to be marijuana, $1,364, scales,

ammunition, and a Beretta pistol.  After a two‐day trial, a jury found Jenkins guilty of

possession with intent to distribute crack, see 21 U.S.C. § 841(a)(1), and possession of a

firearm by a felon, see 18 U.S.C. § 922(g)(1).  Jenkins filed a notice of appeal, but his

appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738 (1967),

because he cannot discern any nonfrivolous ground for appeal.  Jenkins did not accept our

invitation to respond to his lawyersʹ submission.  See CIR. R. 51(b).  Limiting our review to

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐3546 Page 2

the potential issues identified in counselʹs supporting brief, see United States v. Schuh, 289

F.3d 968, 973‐74 (7th Cir. 2002), we grant counselʹs motion and dismiss the appeal.

In his Anders submission, counsel considers a general challenge to the sufficiency of

the evidence.  See, e.g., United States v. Mendoza, 510 F.3d 749, 752 (7th Cir. 2007).  We would

review such a challenge for plain error because counsel did not move for acquittal on that

basis in the district court.  See, e.g., United States v. Groves, 470 F.3d 311, 324 (7th Cir. 2006).

To convict under 21 U.S.C. § 841(a)(1), the government had to prove that Jenkins

(1) knowingly possessed crack, (2) intended to distribute it, and (3) knew that it was a

controlled substance.  United States v. Orozco‐Vasquez, 469 F.3d 1101, 1106 (7th Cir. 2006).

The police found Jenkins home alone with nearly 25 grams of crack, they found evidence

that he resided at that address, and they found the scales, gun, ammunition, and currency

that are often associated with drug dealing.  That was sufficient.  To convict under 18 U.S.C.

§ 922(g)(1), the government had to prove that (1) Jenkins was a felon, (2) he possessed a

gun, and (3) the gun previously had traveled in or affected interstate commerce.  United

States v. Birk, 453 F.3d 893, 897 (7th Cir. 2006).  Jenkins stipulated to the first element and did

not dispute evidence proving the third.  As to the second element, the same evidence tying

Jenkins to the drugs in the house were sufficient to tie him to the gun.  Thus, a sufficiency

challenge to conviction on either count would be frivolous.

Counsel also addresses the district court’s decision, after an objection, to qualify

Detective Keith Dodd, one of the officers who searched Jenkins’s house, as an expert

witness.  After being qualified as an expert, Dodd volunteered several ways to distinguish

between drug users and drug dealers: (1) firearms and cell phones are often used by drug

dealers, (2) crack users are unlikely to hold onto crack any longer than it takes to use the

drug, (3) crack users are unlikely to have large quantities, such as 25 grams, of the drug,

(4) drug users do not own multiple scales, (5) drug dealers normally keep scales near their

drugs, and (6) drug dealers often have large amounts of currency.  Finally, Dodd testified

that based on his training and experience, it was his opinion that the crack found at Dodd’s

home was being possessed for the purpose of selling it.  

There are two potential problems with Dodd’s testimony.  First, “[n]o expert witness

testifying with respect to the mental state or condition of a defendant in a criminal case may

state an opinion or inference as to whether the defendant did or did not have the mental

state or condition constituting an element of the crime charged or of a defense thereto.”

FED. R. EVID. 704(b); see also United States v. Brumley, 217 F.3d 905, 912 (7th Cir. 2000).  But

Dodd never purported to have any special insights into Jenkins’s mental state; he spoke

only in general, not specific, terms regarding what someone who possessed 25 grams of

crack along with cell phones, guns, and scales was likely to do with the crack.   Thus, his
No. 07‐3546 Page 3

testimony did not violate Rule 704(b).  See United States v. Love, 336 F.3d 643, 647 (7th Cir.

2003); Brumley, 217 F.3d at 912.  

Second, in United States v. Moore, 521 F.3d 681, 684 (7th Cir. 2008), we cautioned

against admitting “expert” testimony similar to Dodd’s without discussion of whether it

satisfies the three conditions listed in Federal Rule of Evidence 702, that is, “(1) the

testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the principles and methods reliably

to the facts of the case.”  As in Moore, the district court here addressed none of these

questions, see Moore, 521 F.3d at 683, and instead concluded only that Dodd had the

necessary experience to qualify as an expert.  Still, as in Moore, Jenkins did not object on the

grounds that the three conditions of Rule 702 were not satisfied.  Id. at 685.  He argued only

that Dodd was not experienced enough to be qualified as an expert because he had never

before given expert testimony and because his last formal training on drug trafficking had

been more than two years earlier.  Because “the right questions were not asked, we cannot

know whether [Dodd] should have been allowed to testify,” id., and, therefore, the

argument would be frivolous.

Counsel also considers whether Jenkins could argue that the district court erred in

admitting .25 and .45 caliber ammunition found in the search since Jenkins was charged

only with possessing a .40 caliber firearm.  When Jenkins objected, the district court held

that the ammunition could be admitted because firearms and, relatedly, ammunition, are a

“tool of the trade” for drug dealing.  We routinely uphold evidentiary rulings based on a

tool‐of‐the‐trade theory, see, e.g., United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005), and

would do so again here.  But even absent the drug charge, evidence that a defendant

possessed ammunition is surely relevant to proving that he possessed a gun, even when

that ammunition could not be used in the gun charged in the indictment.  Thus, counsel is

correct that an argument challenging the ammunition evidence would be frivolous.

Counsel’s final two potential issues are easily dealt with.  In her closing argument,

the prosecutor said the following:

So I need to premise my final remarks to you with a few reminders.  As the

Court has told you, Mr. Jenkins has an absolute right to remain silent.  There

is absolutely no obligation on his behalf to present any evidence to you, or to

demonstrate why he’s not guilty of the crimes that he’s been charged with, or

present any evidence whatsoever.  But that being said, you have heard the

theory of defense.  You have heard from a defense witness in this case, and

that has been presented to you, and it is your obligation to determine if it
No. 07‐3546 Page 4

makes sense.  It’s your obligation to consider whether the rest of the evidence

and theory of defense fits.

Jenkins objected, but the district court refused to declare a mistrial.  A prosecutor may not

suggest that a defendant’s failure to testify is evidence of his guilt, see United States v. Willis,

523 F.3d 762, 773 (7th Cir. 2008), but no rule prevents a prosecutor from mentioning the

right while summarizing the evidence presented by the defendant, see United State v. Stark,

507 F.3d 512, 519 (7th Cir. 2007) (“Prosecutors are allowed to comment on the weakness of

the defendantʹs case in closing arguments.”).  Because all the prosecutor did here was

summarize defendant’s case, any argument based on her comments would be frivolous.

Finally, a challenge to the underlying search warrant would also be frivolous because

Jenkins failed to raise a suppression claim in the district court.  We excuse such failures in

those very rare cases where a defendant can show good cause for the failure, see FED. R.

CRIM. P. 12(e); United States v. Johnson, 415 F.3d 728, 730‐31 (7th Cir. 2005), but because this is

not such a case, the argument would be frivolous.

Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is

DISMISSED.