In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 03-3780, 03-3764 & 03-3884

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRAUN PRICE, also known as

BOO ROCK, TERENCE DILWORTH,

also known as T, and WILLIAM J.

DAVISON, also known as TALL ONE,

Defendants-Appellants.

____________

Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division.

Nos. 01 CR 98 & 02 CR 44—James T. Moody, Judge.

____________

ARGUED FEBRUARY 25, 2005—DECIDED AUGUST 15, 2005

____________

Before BAUER, POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Terence Dilworth, Terraun Price and

William Davison all were convicted of drug-related offenses. They appeal their convictions and sentences on

several grounds. For the reasons set forth in the following

opinion, we affirm the defendants’ convictions. We further

order, while retaining jurisdiction, a limited remand of this
2 Nos. 03-3780, 03-3764 & 03-3884

case to the district court as required by United States v.

Paladino, 401 F.3d 471 (7th Cir. 2005).

I

BACKGROUND

A. Facts

We shall set forth here a brief rendition of the facts

relevant to this appeal; the facts that bear specifically on the

defendants’ contentions on appeal will be discussed in

greater detail further below.

The defendants’ convictions stemmed from a federal

investigation of the illegal drug trade in Gary, Indiana. At

various times, the defendants became involved in a criminal

conspiracy that existed to distribute crack cocaine and other

drugs in the Concord neighborhood of Gary. The conspiracy, which existed from 1994 until 2001, eventually came to

be led by Bobby Suggs. See United States v. Suggs, 374 F.3d

508, 512 (7th Cir. 2004). The conspiracy members trafficked

in crack cocaine and other drugs near a government housing

complex (“the Hill”). The defendants also were involved

with Concord Affiliated (“CCA”), a rap group and a street

gang associated with the well-known Vice Lords gang.

B. District Court Proceedings

Mr. Price was indicted on June 20, 2001, along with 32

other individuals. He was charged with commission of three

crimes: (1) conspiracy to distribute 50 grams or more of

cocaine base, in violation of 21 U.S.C. § 846; (2) use of a

telephone to facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b); and (3) possession of marijuana

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
Nos. 03-3780, 03-3764 & 03-3884 3

Mr. Dilworth and Mr. Davison were indicted on June 7,

2002, along with four other individuals. Mr. Dilworth was

charged with one count of conspiracy to distribute 50 grams

or more of cocaine base, in violation of 21 U.S.C. § 846; and

two counts of distribution of cocaine base, in violation of 21

U.S.C. § 841(a)(1). Mr. Davison was charged with the same

crimes.

The defendants’ cases were consolidated for trial. During

the proceedings, the Government introduced evidence to

which the defendants object in this appeal; this evidence

will be discussed in greater detail below. The Government

also introduced the testimony of Kenneth Lewis, a resident

of the Concord neighborhood. The defendants now challenge the use of Lewis’ testimony on the ground that it

violates the principles set forth in Brady v. Maryland, 373

U.S. 83, 87 (1963).

At the conclusion of the trial, the jury found Mr. Price

guilty of conspiring to distribute 50 grams or more of

cocaine base and using a telephone to facilitate the commission of a felony. Mr. Price was acquitted on the marijuana

charge. The jury returned guilty verdicts against

Mr. Dilworth on all counts against him. The jury found

Mr. Davison guilty on both distribution counts against him

but acquitted him on the conspiracy count.

The court sentenced the defendants believing the federal

sentencing guidelines to be mandatory. The court sentenced

Mr. Price to life in prison on the conspiracy count and to

48 months, to run concurrently with his life sentence, for the

use of a telephone to facilitate the commission of a felony.

Mr. Dilworth received a sentence of 360 months. Mr.

Davison received a sentence of 360 months.
4 Nos. 03-3780, 03-3764 & 03-3884

1 Target Number Two is not implicated in this appeal.

II

DISCUSSION

A. Admission of Wiretap Evidence

During its investigation of the illegal drug trade in Gary,

the FBI repeatedly sought the district court’s permission to

intercept telephone communications involving suspected

members of the conspiracy. In January 2001, the FBI sought

permission to extend a wiretap authorization that previously

had been granted to intercept communications occurring to

and from one phone number (“Target Number One”). In the

same application, the FBI also sought authorization to

intercept communications occurring to and from two other

numbers (“Target Number Two” and “Target Number

Three”).1 See 18 U.S.C. § 2518 (allowing a court to authorize

interception of wire or other communications within the

court’s territorial jurisdiction). In an affidavit supporting the

wiretap request, FBI Special Agent Anthony Riedlinger

alleged that undercover agents had been unable to infiltrate

the targeted conspiracy to buy drugs, that government informants had been beaten and threatened and that physical

surveillance of targeted subjects had caused illegal activities

to be moved elsewhere. The district court issued an order

granting the FBI permission to intercept communications

made to and from these three phone numbers. The recordings made pursuant to the authorized wiretaps revealed a

conversation between Bobby Suggs, speaking from Target

Number Three, and Mr. Price.

Before trial, Mr. Price moved to suppress the fruits of the

wiretap that the district court had authorized. He alleged

that “all” the communications the Government had intercepted by wiretap “were unlawfully intercepted” and that
Nos. 03-3780, 03-3764 & 03-3884 5

2 The documents referred to are part of Mr. Price’s appendix. We

have not been able to locate them in the record on appeal. The

existence of the documents and their contents is not in contention.

the “authorization . . . under which these communications

were intercepted is insufficient on its face.” Price’s

Sep. App., Tab C at 1.2

 The district court denied Mr. Price’s

motion to suppress, noting that the motion was “much too

broad for the court to meaningfully evaluate it” and that it

was “Price’s responsibility . . . [to] narrow[ ] the field to the

communications he believes were unlawfully obtained.”

Price’s Sep. App., Tab D at 2. The wiretap evidence was

admitted at trial over Mr. Price’s renewed objection. On

appeal, Mr. Price contends that the FBI’s application for the

wiretap did not establish probable cause and did not

establish necessity as required by statute.

1. Standard of Review

This court reviews de novo a district court’s finding that

a wiretap application established probable cause. See United

States v. Dumes, 313 F.3d 372, 379 (7th Cir. 2002). A district

court’s determination that an application established

necessity for a wiretap is reviewed for abuse of discretion.

See id. at 378-79.

2. 18 U.S.C. § 2518

Section 2518 of Title 18 outlines the requirements that

must be met by an application to intercept wire, oral or electronic communications. First, a wiretap application must

establish probable cause. See 18 U.S.C. § 2518(3)(a), (b)

(court must determine that there is “probable cause for
6 Nos. 03-3780, 03-3764 & 03-3884

belief that an individual is committing . . . a particular

offense enumerated in section 2516 of this chapter” and “for

belief that particular communications concerning that

offense will be obtained through such interception”).

A wiretap application also must establish necessity. Seeid.

§ 2518(1)(c) (application for wiretap must include a full and

complete statement as to whether “normal investigative

procedures have been tried and have failed or reasonably

appear to be unlikely to succeed if tried or to be too dangerous”). Statements asserting that the necessity requirement

of § 2518(1)(c) has been met should “be reviewed in a

practical and commonsense fashion.” United States v.

Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988). If the Government offers a “valid factual basis” for the necessity of a

wiretap—alleging, for instance, that “informants and

undercover agents could not infiltrate the drug conspiracy”

or that “physical surveillance might alert the subject to the

investigation”—the necessity requirement is met. United

States v. Ceballos, 302 F.3d 679, 683 (7th Cir. 2002); see also

Dumes, 313 F.3d at 378 (“[W]e will affirm a district court’s

finding that normal investigative procedures are not likely

to be successful as long as there was a factual predicate in

the affidavit.” (internal quotation omitted)).

3. The Wiretap Evidence in the Present Case

Mr. Price submits that Agent Riedlinger’s affidavit did not

establish probable cause because it relied on interpretations

of everyday language to suggest drug activity. Mr. Price

claims that this evidence would not “warrant a prudent

man in believing that the [suspect] had committed or was

committing an offense.” Woods v. City of Chicago, 234 F.3d

979, 996 (7th Cir. 2000) (defining “probable cause”). Mr.

Price also claims that Agent Riedlinger’s application did not
Nos. 03-3780, 03-3764 & 03-3884 7

establish necessity because, he contends, the application

only referred to Target Number One.

The Government asserts that probable cause was shown

because Agent Riedlinger’s affidavit averred that a call had

been intercepted between Target Number One, for which

interception already was authorized, and Target Number

Three, for which a wiretap was being sought. The person

using Target Number Three was Bobby Suggs, who had

been identified as a suspected member of the conspiracy.

The Government also submits that necessity was shown by

Agent Riedlinger’s detailed account in his affidavit regarding the inability of investigators to generate evidence using

traditional law enforcement techniques.

On the issue of probable cause, our review of

Agent Riedlinger’s affidavit leads to our independent conclusion that probable cause existed with respect to Target

Number Three. In particular, the affidavit describes one

recorded phone call between Target Number One and

Target Number Three. In the phone call, Shawn Tarver

(speaking from Target Number One) and Bobby Suggs

(speaking from Target Number Three) discuss an upcoming

“party” and where it was to take place. Price’s Sep. App.,

Tab N at 31. Later in the conversation, Tarver states that he

“just got supplied yesterday.” Id. Furthermore, Agent

Riedlinger’s affidavit described the results obtained through

a dialed number recorder used on Target Number Three.

From October 2000 until January 2001, with court permission, the FBI made a record of the telephone calls made

from and dialed to Target Number Three. The dialed

number records showed numerous calls made to and from

other targets of the investigation. We believe that, taken

together, these circumstances constitute probable cause for

the belief that Suggs and Tarver were engaged in drug

offenses and for the belief that communications related to
8 Nos. 03-3780, 03-3764 & 03-3884

the drug offenses would be obtained through the wiretap of

Target Number Three.

Furthermore, Agent Riedlinger’s description of the failure

of ordinary investigative techniques is sufficient to establish

necessity. Contrary to Mr. Price’s submission, the content of

the affidavit, when read in its totality, addresses necessity

with respect to all three target numbers.

The affidavit relates that physical surveillance had not

been of much value, both because the close-knit neighborhood in which the targets of the investigation lived made it

hard to conceal police presence and because the targets had

begun to conduct counter-surveillance. It was difficult for

agents to obtain the help of cooperating witnesses because

the strong bonds between CCA members made it unlikely

that any high-ranking members would turn on their friends;

the Government was not able to contact any cooperating

witness that knew the details of the roles that the targets

played in CCA operations. Furthermore, some of the targets

had been informed that they were under investigation,

which made the use of cooperating witnesses more dangerous. Agent Riedlinger also averred that undercover agents

would not have been useful because the targets did not trust

strangers. He also claimed that search warrants would have

compromised the secrecy of the investigation. In view of all

the contents of Agent Riedlinger’s affidavit, we believe that

the district court acted within its discretion when it concluded that the affidavit established a factual basis for the

necessity of the wiretap.

On the record in this case, we must conclude that the

Government established both probable cause and necessity

through Agent Riedlinger’s affidavit. Thus, we also conclude that the district court appropriately admitted the

wiretap evidence at trial.
Nos. 03-3780, 03-3764 & 03-3884 9

B. Admission of Other Evidence

Mr. Price and Mr. Dilworth take issue with several rulings

of the district court admitting evidence at trial. We shall

review the challenged evidence in more detail below.

1. Standard of Review

The Federal Rules of Evidence state that, generally, “[a]ll

relevant evidence is admissible” and that “[e]vidence which

is not relevant is inadmissible.” Fed. R. Evid. 402. Relevant

evidence is defined under the Rules as “evidence having

any tendency to make the existence of any fact that is of

consequence to the determination of the action more

probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401. However, Rule 403 provides

that relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed. R. Evid. 403.

We review a district court’s evidentiary rulings for abuse

of discretion. See United States v. Brown, 289 F.3d 989, 994

(7th Cir. 2002). “[E]ven erroneous evidentiary rulings will

not be overturned if any resulting error was harmless.”

United States v. Farmer, 924 F.2d 647, 654 (7th Cir. 1991).

A point of particular contention between the parties in

this appeal is whether an objection to evidence on Rule 403

grounds must be asserted separately from an objection to

that evidence based on relevance. In this circuit, “[a] general

objection to ‘relevance[ ]’ . . . is not sufficient to preserve an

objection under Rules 404(b) or 403.” United States v. Mejia,

909 F.2d 242, 246 (7th Cir. 1990); see also United States v.

Carroll, 871 F.2d 689, 691 (7th Cir. 1989) (noting the general
10 Nos. 03-3780, 03-3764 & 03-3884

rule that the specific basis for reversal of an evidentiary

ruling on appeal must be the same as the one raised at trial).

When a party has failed to raise at trial the specific ground

on which he appeals the trial court’s evidentiary ruling, this

court reviews only for plain error. Mejia, 909 F.2d at 247; see

also Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(d). In the

evidence context, “[a] ‘plain error’ is one that results in ‘an

actual miscarriage of justice,’ which implies that the defendant ‘probably would have been acquitted’ but for the

erroneously admitted evidence.” Mejia, 909 F.2d at 247

(quoting Carroll, 871 F.2d at 692).

2. Weapons from 1770 Hanley Street

Pursuant to a search warrant, government agents in

May 2001 searched 1770 Hanley Street in Gary, the home of

Bobby Suggs, Sr. and Warena Suggs. Bobby, Sr. and Warena

are the parents of Bobby Suggs, and of another convicted

conspirator, Seantai Suggs. The search resulted in the discovery of four weapons (“the Hanley Street weapons”): a

.357 caliber handgun, a .38 caliber handgun, a .44 caliber

magnum handgun and a .20 gauge sawed-off shotgun. The

Hanley Street weapons were admitted in evidence at trial

over the defendants’ Rule 403 objection.

On appeal, the defendants contend that the district court

abused its discretion by admitting the Hanley Street weapons. They contend that the admission of the weapons

impermissibly “inflame[d] the passions of the jury,”

Dilworth’s Br. at 28, and were not probative of the existence

of a conspiracy because Bobby, Sr. and Warena were not

identified in the Government’s evidentiary proffer as

members of the conspiracy. The Government, on the other

hand, contends that the Hanley Street weapons were highly
Nos. 03-3780, 03-3764 & 03-3884 11

3 Mr. Dilworth’s brief also mentions, in the same heading that

concerns the police alert, a piece of evidence to which he does not

direct any further argument in the body of his brief: “the Vice

Lords Oath.” Dilworth’s Br. at 28. The defendants make no

further mention of the oath, and they did not address it at oral

argument. Consequently, we shall not address it either.

probative of the existence of a conspiracy in light of the fact

that Bobby and Seantai Suggs had access to their parents’

home.

This court previously has remarked that “guns are tools

of the drug trade and are therefore relevant evidence in a

drug case.” United States v. Van Dreel, 155 F.3d 902, 906 (7th

Cir. 1998). We conclude that the district court acted within

its discretion in admitting into evidence the Hanley Street

weapons.

3. Gary Police Alert

The defendants also challenge the admission of a Gary

Police Department intelligence alert (“the police alert”), a

document seized from Bobby, Sr. and Warena Suggs’ home

at 1770 Hanley Street.3

 The document was prepared by the

Gary Police. It listed known members of CCA, including

Mr. Dilworth and Bobby and Seantai Suggs (but not

Mr. Price or Mr. Davison). The defendants contended at trial

that the document was irrelevant, that it was hearsay and

that it violated the Confrontation Clause of the Sixth

Amendment. The district court held that the document was

non-hearsay because it was not offered to prove that the

listed men were members of CCA, but rather was offered to

show that CCA was engaging in counter-surveillance. On

appeal, the defendants contend that the district court

committed an abuse of discretion by failing to exclude the
12 Nos. 03-3780, 03-3764 & 03-3884

4 In other of our cases, we have considered evidence of countersurveillance as relevant to certain aspects of a conspiracy. Cf.

United States v. Carillo, 269 F.3d 761, 771 (7th Cir. 2001) (noting

that defendant’s role in a conspiracy had not been a minor one

when he had conducted counter-surveillance for the members of

the conspiracy).

police alert on the grounds of relevance, hearsay and the

Sixth Amendment Confrontation Clause.

The district court was well within its discretion in overruling the defendants’ relevance objection to the police alert.

Evidence that members of an alleged conspiracy were

conducting counter-surveillance of police activity certainly

makes more probable the existence of a conspiracy to break

the law.4

Furthermore, the district court acted well within its

discretion when it concluded that the police alert was not

hearsay. Although it constitutes an out-of-court statement,

the police alert was not “offered in evidence to prove the

truth of the matter asserted,” and therefore it is not hearsay.

Fed. R. Evid. 801(c). Although the police alert includes Mr.

Dilworth’s name as a member of an alleged conspiracy, the

alert was not introduced to prove that assertion. When the

Government sought to introduce the police alert at trial, it

argued that the alert was being introduced “to show that it

was found in Bobby Suggs’ home” and “to show countersurveillance.” Tr.IV at 10. The Government explicitly stated

that the police alert was not being introduced “in the record

to argue that because of [the police alert], these people are

members of a gang.” Id. The district court did not abuse its

discretion in failing to exclude the police alert on hearsay

grounds.
Nos. 03-3780, 03-3764 & 03-3884 13

5 Although we decide the Confrontation Clause issue on the

ground that the police alert was not used to establish the truth of

the matters asserted therein, we also point out that the police

alert may not fall within the definition of “testimonial” evidence

for purposes of the Sixth Amendment. In Crawford v. Washington,

541 U.S. 36, 68 (2004), the Court “le[ft] for another day any effort

to spell out a comprehensive definition of ‘testimonial.’ ” The

Court noted that the definition of “testimonial” includes, “at a

minimum,” “prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and . . . police interrogations.” Id.

Finally, our determination that the police alert was not

hearsay leads us to conclude that there is no merit to the

defendants’ contention that admission of the police alert

violated the Confrontation Clause of the Sixth Amendment.

The defendants correctly point out that the Supreme Court

held in Crawford v. Washington, 541 U.S. 36, 68 (2004), that

the admission of testimonial hearsay evidence at trial, when

the witness is unavailable and the defendant has had no

opportunity to cross-examine the witness, violates the

Confrontation Clause of the Sixth Amendment. However,

the Court in Crawford also noted explicitly that the

Confrontation Clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of

the matter asserted.”5 Id. at 59 n.9 (citing Tennessee v. Street,

471 U.S. 409, 414 (1985) (holding that “nonhearsay aspect

of . . . confession” raised “no Confrontation Clause concerns” (emphasis in original))). The police alert was not

introduced to prove the truth of the matters asserted in it.

The district court therefore committed no error in failing to

exclude the police alert on Sixth Amendment Confrontation

Clause grounds.
14 Nos. 03-3780, 03-3764 & 03-3884

4. Weapons from 1727 Clinton Street

On April 25, 1996, Gary police officer James Gaskey

chased a suspect into 1727 Clinton Street, a drug house out

of which Bobby Suggs sold crack cocaine. Inside 1727

Clinton Street, Officer Gaskey made several arrests and

discovered twelve weapons (“the Clinton Street weapons”).

When the Government sought to introduce these weapons,

the defendants objected on relevance grounds. The court

overruled the objection.

On appeal, the defendants assert that the district court

should have excluded the weapons on relevance grounds

and on Rule 403 grounds. They submit that the Clinton

Street weapons were not relevant because there was no indication of who lived at 1727 Clinton Street. The Government

contends that the Clinton Street weapons were relevant

because they had some tendency to show that Bobby Suggs

was leading a conspiracy to sell crack cocaine near the Hill.

The district court acted within the bounds of its discretion

when it overruled the defendants’ relevance objection. As

we already have noted, evidence of weapons is relevant in

a drug case. Furthermore, Officer Gaskey testified at trial

that Bobby Suggs, the alleged leader of the drug conspiracy,

was present at 1727 Clinton Street when the weapons were

seized. Thus, the presence of weapons was relevant to

establishing the existence of the conspiracy.

The defendants also seem to contend on appeal that the

Clinton Street weapons were more prejudicial than probative and should not have been admitted into evidence. See

Dilworth’s Br. at 30 (“[T]his evidence was offered solely to

influence the emotions of the mostly white jury.”). Because

the defendants did not raise a Rule 403 objection to these

weapons at trial, the assertion that the weapons were more

prejudicial than probative should be reviewed only for plain
Nos. 03-3780, 03-3764 & 03-3884 15

error. We certainly cannot conclude that the district court

committed plain error in admitting the weapons. As the

Government points out, there were numerous other weapons introduced at trial and attributed to the conspiracy. We

simply cannot say, in light of the other evidence introduced

at trial, that “an actual miscarriage of justice” resulted from

the introduction of the guns seized from 1727 Clinton Street.

See Carroll, 871 F.2d at 692.

5. Pole Camera Video Tape

As part of the FBI’s surveillance activities, a camera was

installed on a telephone pole near the Hill from

October 1996 to March 1997. At trial, the Government

played some of the tape recorded by the pole camera. The

defendants objected at trial on relevance and hearsay

grounds, but did not raise a Rule 403 objection.

On appeal, the defendants contend that the tape was

irrelevant because it did not provide enough detail to show

the identity of persons filmed; they also contend that the

tape was prejudicial and confused the jury. The Government

asserts that the tape was relevant because it tended to show

that organized drug dealing occurred near the Hill.

In view of the high degree of deference accorded to a

district court’s evidentiary rulings, we must conclude that

the court did not abuse its discretion by failing to exclude

the pole camera tape on relevance grounds. We do not believe that admission of the pole camera tape was error

because the tape, which showed unidentifiable individuals

engaging in what a police officer testified appeared to be

drug transactions, made more probable the existence of a

drug conspiracy operating around the Hill.

With respect to the defendants’ contention that the introduction of the pole camera tape was prejudicial and con-
16 Nos. 03-3780, 03-3764 & 03-3884

fusing, we must conclude that the defendants have not

established that the district court committed plain error in

admitting the tape. Even assuming that it would have been

error to admit the pole camera tape over a proper Rule 403

objection, it was not prejudicial to the defendants. The pole

camera tape merely displayed drug activity on the Hill to

which other witnesses already had testified. The fact that

this gave the jury a physical, as opposed to a mental, picture

of that activity does not render the tape unduly prejudicial.

On the facts of this case, we cannot say that the introduction

of the pole camera tape resulted in “an actual miscarriage of

justice.” Carroll, 871 F.2d at 692.

6. Photographs Seized from Laidback Records

In May 2001, FBI agents executed a search warrant at

Laidback Records, the recording label for the CCA rap

group. Several photographs were seized from Laidback

Records and were admitted at trial. One photograph showed

Mr. Dilworth, along with Bobby Suggs, Seantai Suggs and

other co-conspirators, sitting atop an SUV. Mr. Price appeared in two other photographs; in one, he was seated in

a car in which another passenger was carrying a handgun.

At trial, the defendants objected to the photographs on relevance grounds, and the district court overruled the objection.

On appeal, the defendants submit that the district court

abused its discretion by failing to exclude the photographs

on relevance grounds. For the first time on this appeal, they

raise Rule 403 grounds.

Turning to the relevance objection, the district court did

not abuse its discretion. The photographs established a connection among the defendants and therefore were relevant
Nos. 03-3780, 03-3764 & 03-3884 17

because they had the tendency to make the defendants’

participation in the conspiracy more likely.

With respect to the alleged Rule 403 error, which we

review only for plain error, we conclude that there was no

“actual miscarriage of justice,” Carroll, 871 F.2d at 692, from

the admission of the photographs. The photographs were

indeed probative of the defendants’ associations with other

conspirators, and the danger of prejudice from the photographs was minimal in light of the fact that numerous other

photographs admitted into evidence at trial showed the

defendants associating with other gang members and

flashing gang symbols. Therefore, the defendants cannot

prevail on this ground. The district court properly admitted

into evidence the photographs seized at Laidback Records.

7. Song Lyrics

At trial, the Government introduced “One Life 2 Live,” a

compact disc recorded by the CCA rap group; a music video

made by the CCA rap group; and the lyrics to “COKE,” a

song from the “One Life 2 Live” CD. The district court

admitted the CD, the music video and the song lyrics over

the defendants’ objections. Specifically, the defendants

objected to these items on relevance grounds and, later,

objected to the song lyrics on Rule 403 grounds. In its oral

rulings on the objections, the district court stated that the

evidence “of the jargon that’s pervasive in the drug trade”

would aid the jury. Tr.V at 174.

On appeal, the defendants contend that the “COKE” song

lyrics should not have been admitted at trial because the

danger of unfair prejudice from their admission outweighed

their probative value. We review this claim for abuse of

discretion.
18 Nos. 03-3780, 03-3764 & 03-3884

We have held in the past that rap lyrics, because they

reflect “urban life” and “the reality around [the song’s]

author,” can be relevant to drug crimes. United States v.

Foster, 939 F.2d 445, 456 (7th Cir. 1991). In this case, the

lyrics were possibly of some help to the jury in assessing the

evidence. However, the possible prejudicial value of these

song lyrics certainly gives us pause. Nonetheless, regardless

of whether the district court was in error in overruling the

defendants’ Rule 403 objection to the song lyrics, we shall

not overturn its ruling because any error that resulted from

the admission of the lyrics was harmless. See Farmer, 924

F.2d at 654. The district court admitted the song lyrics in

order for them to be interpreted by a federal agent with

specialized knowledge of the drug trade, and it appears that

the lyrics were used in that manner at trial. Moreover, it was

made clear at trial that the authorship of the song was

unknown; it was not attributed to any of the defendants. We

conclude that the admission at trial of the lyrics, if in error,

was harmless.

8. Mr. Dilworth’s Past Arrest for Drug Dealing

In September 1994, an undercover Gary police officer

observed Mr. Dilworth engaging in drug dealing near the

Hill. Mr. Dilworth was arrested after he left the Hill; a postarrest search of his person did not recover any drugs. At

trial, Mr. Dilworth objected to the officer’s testimony regarding that arrest on the ground that it was inadmissible

under Federal Rule of Evidence 404(b). The Government

argued that it was evidence of an overt act in furtherance of

the conspiracy. The court overruled Mr. Dilworth’s objection.

On appeal, Mr. Dilworth argues that the district court

abused its discretion by failing to exclude the undercover
Nos. 03-3780, 03-3764 & 03-3884 19

officer’s testimony on Rule 404(b) grounds. The Government

contends that the officer’s testimony was admissible because

Mr. Dilworth’s drug dealing constituted an overt act in

furtherance of the conspiracy in which Mr. Dilworth was

alleged to have participated.

According to Rule 404(b), the Government may not introduce evidence of a defendant’s “prior misconduct merely

to demonstrate ‘that a defendant has a propensity to commit

crime and that he acted in conformity with that propensity

on the occasion in question.’ ” United States v. Hughes, 310

F.3d 557, 564 (7th Cir. 2002) (quoting United States v. Best,

250 F.3d 1084, 1090 (7th Cir. 2001)). However, the Government may present evidence of prior misconduct in order to

prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b).

This court uses a four-prong test to determine whether

evidence of prior misconduct is admissible under

Rule 404(b). According to the test,

[e]vidence of prior crimes, wrongs, or acts may be

admitted when: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s

propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and

close enough in time to be relevant to the matter in

issue; (3) the evidence is sufficient to support a jury

finding that the defendant committed the similar act;

and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

United States v. Asher, 178 F.3d 486, 492 (7th Cir. 1999).

Mr. Dilworth’s submissions to this court do not make

particularly clear on which of these prongs he bases his

arguments. Nonetheless, we must conclude that the district
20 Nos. 03-3780, 03-3764 & 03-3884

court acted within its discretion in admitting the evidence

of Mr. Dilworth’s prior arrest for drug dealing over a

Rule 404(b) objection. First, the evidence establishes opportunity, plan and knowledge on Mr. Dilworth’s part with

respect to the charges of conspiracy and drug trafficking.

Second, the evidence of Mr. Dilworth’s September 1994

arrest is similar in nature and close in time to the charges

against Mr. Dilworth. Mr. Dilworth was charged with participating in a conspiracy to sell drugs beginning in 1994 and

the actions that led to the arrest are quite similar to the

charged conspiracy. Third, although there is, as

Mr. Dilworth himself points out, no evidence that he ever

was prosecuted or convicted based on the September 1994

arrest, we think that the undercover officer’s testimony at

trial provided sufficient evidence to allow a jury to conclude

that Mr. Dilworth committed the similar act. Finally, we

believe that the probative value of the evidence of the arrest

outweighs its prejudicial value.

Thus, we must conclude that evidence of Mr. Dilworth’s

arrest for drug dealing was admissible Rule 404(b) evidence

and, therefore, that the district court did not abuse its

discretion in allowing the officer to testify regarding

Mr. Dilworth’s arrest.

9. Drugs Discovered in Mr. Dilworth’s Vehicle

In June 1995, Gary police officer Phillip Pardus made a

traffic stop of a vehicle driven by a high-level member of

CCA. Officer Pardus conducted a consensual search of

the vehicle. The vehicle that was the subject of the stop

was owned by Mr. Dilworth. In Mr. Dilworth’s car,

Officer Pardus found several baggies containing crack

cocaine.
Nos. 03-3780, 03-3764 & 03-3884 21

At trial, Mr. Dilworth objected to Officer Pardus’ testimony regarding the drugs on several grounds, one of which

was Rule 403. He again raises the Rule 403 argument on

appeal and also belatedly argues that the evidence of drugs

was irrelevant.

The district court’s conclusion that the probative value of

Officer Pardus’ testimony outweighed the danger of unfair

prejudice was not an abuse of its discretion. The evidence

clearly had probative value because it tended to show that

Mr. Dilworth had loaned his car to another member of the

conspiracy. Furthermore, the risk of unfair prejudice to

Mr. Dilworth was low. For instance, as Officer Pardus testified, there was no concern that the vehicle was being used

without the owner’s permission because “[t]here didn’t

appear to be any signs or indications that the car was

stolen.” Tr.IV at 200.

Mr. Dilworth did not raise a relevance objection at trial,

but even if he had, admitting Officer Pardus’ testimony

would not have been error, let alone error that is plain. His

testimony was relevant because it connected Mr. Dilworth

to other members of the conspiracy, thus making it more

probable that Mr. Dilworth was himself a member of the

conspiracy. Therefore, we cannot conclude that the district

court committed plain error by admitting Officer Pardus’

testimony.

C. Testimony of Kenneth Lewis

Kenneth Lewis testified at trial as a government witness.

As a neighbor of Mr. Price and a resident of the Concord

area, Lewis testified to having seen members of the conspiracy selling crack cocaine. Lewis also testified that he had

purchased crack cocaine from members of the conspiracy.

At trial, the Government claimed that it never had promised
22 Nos. 03-3780, 03-3764 & 03-3884

Lewis, in exchange for his testimony, that he would not be

charged with a crime. At Mr. Dilworth’s sentencing hearing,

when asked whether the Government had promised Lewis

that he would not be charged, FBI Agent Bradley Bookwalter

replied that he was not sure but that an Assistant United

States Attorney might have made such a promise. Agent

Bookwalter also stated that any promises would have been

documented in reports that were turned over to the defendants. In this appeal, Mr. Price and Mr. Dilworth both

contend that the Government’s failure to disclose the

agreement is a ground for a new trial based on Brady, 373

U.S. 83.

The Supreme Court in Brady held “that the suppression by

the prosecution of evidence favorable to an accused . . .

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” Id. at 87. A district court has broad

discretion to determine Brady violations, and we review the

court’s exercise of that discretion for abuse. See United States

v. Knight, 342 F.3d 697, 705 (7th Cir. 2003), cert. denied sub

nom. Williams v. United States, 540 U.S. 1227 (2004).

To prove a Brady violation, a defendant must show: (1)

that the “evidence at issue [is] favorable to the accused,

either because it is exculpatory, or because it is impeaching”; (2) that the evidence was “suppressed by the State,

either willfully or inadvertently”; and (3) that “prejudice . . .

ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The

third prong also has been phrased in terms of whether “the

evidence was material to an issue at trial.” Boss v. Pierce, 263

F.3d 734, 740 (7th Cir. 2001). The Supreme Court has held

that evidence that a witness who testified for the Government was the beneficiary of an “understanding or agreement as to a future prosecution” is “relevant to [that witness’] credibility” and that, in some circumstances, the
Nos. 03-3780, 03-3764 & 03-3884 23

suppression of such information will violate an accused’s

right to due process. Giglio v. United States, 405 U.S. 150, 154-

55 (1972); see also Crivens v. Roth, 172 F.3d 991, 998 (7th Cir.

1999).

Mr. Price and Mr. Dilworth contend that the Government

committed a Brady violation when it failed to disclose its

agreement with Lewis, because Lewis’ testimony was

material at trial and because evidence of the agreement

would have impeached Lewis’ credibility. Although Agent

Bookwalter at one point alluded to a possible agreement

between the Government and Lewis, he admitted that

he did not speak with certainty. Furthermore, as the Government points out, no document suggests any promise

from the Government to Lewis. Because there was no

promise, no Brady violation occurred and Mr. Price and

Mr. Dilworth are not entitled to new trials.

D. Sentencing

Mr. Price, Mr. Dilworth and Mr. Davison contend that

they are entitled to resentencing because their sentences violate the Sixth Amendment as interpreted in United States v.

Booker, 125 S. Ct. 738 (2005) (holding that federal sentencing

guidelines are not mandatory and rendering the guidelines

effectively advisory). Because none of the defendants raised

the proper objection before the district court, we review for

plain error. United States v. Paladino, 401 F.3d 471, 480-81

(7th Cir. 2005).

The test for plain error dictates that, “before an appellate

court can correct an error not raised at trial, there must be

(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial

rights.’ ” United States v. Cotton, 535 U.S. 625, 631 (2002)

(quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

If those three conditions are met, “ ‘an appellate court may
24 Nos. 03-3780, 03-3764 & 03-3884

6 Mr. Price contends that the district court applied to his sentence

a two-level enhancement for CCA’s use of a minor as a lookout.

However, the transcript from Mr. Price’s sentencing does not

contain any reference to such an enhancement.

then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.’ ” Id. (quoting

Johnson, 520 U.S. at 467).

1. Mr. Price’s Sentence

Under the federal sentencing guidelines, the jury’s verdict

on the conspiracy charge against Mr. Price required a base

offense level of 32. See U.S.S.G. § 2D1.1(c)(4) (at least 50

grams but less than 150 grams of cocaine base). The district

court determined that the total amount of cocaine base

attributable to Mr. Price was more than 1.5 kilograms,

which increased the base offense level to 38. See id.

§ 2D1.1(c)(1). The district court applied a two-level enhancement for possession of a dangerous weapon in connection

with a drug offense, see id. § 2D1.1(b)(1), and a three-level

enhancement for Mr. Price’s role as a supervisor or manager

of the criminal activity, see id. § 3B1.1(b).6

 The enhanced

offense level, combined with Mr. Price’s criminal history

category of IV, required a life sentence. The court also

sentenced Mr. Price to a term of 48 months for his conviction for using a telephone to facilitate the commission of a

felony, to be served concurrently with the life sentence.

Turning to our plain error analysis, the district court in

this case based Mr. Price’s sentence on supplemental facts

neither admitted by Mr. Price nor proven to the jury beyond

a reasonable doubt, an action which we have recognized to

“violate[ ] our new understanding of the Sixth Amendment
Nos. 03-3780, 03-3764 & 03-3884 25

as divined by Booker, . . . thereby constitut[ing] error.”

United States v. White, 406 F.3d 827, 835 (7th Cir. 2005).

Additionally, the district conducted the sentencing believing, understandably, the federal sentencing guidelines to be

mandatory. The first two prongs of the plain error test are

therefore satisfied. See id.; see also United States v. Castillo, 406

F.3d 806, 824 (7th Cir. 2005) (holding that mandatory

application of the Guidelines is error that satisfies the first

two prongs of test for plain error). However, with respect to

the third and fourth prongs of the plain error test, we must

conclude that we cannot, on this record, determine “what

the district court would have done with the additional

sentencing discretion now afforded by Booker.” Castillo, 406

F.3d at 825. Thus, while retaining jurisdiction, we order a

limited remand to the district court for proceedings consistent with our decision in Paladino, 401 F.3d at 483-84.

2. Mr. Dilworth’s Sentence

At sentencing, the district court found at least 1.5 kilograms of cocaine base attributable to Mr. Dilworth’s offenses, which established a combined offense level of 38. See

U.S.S.G. § 2D1.1(c)(1) (1.5 kilograms or more of cocaine

base). The district court also applied a two-level enhancement for possession of a dangerous weapon in connection

with a drug offense. See id. § 2D1.1(b)(1). The resulting

offense level of 40, along with Mr. Dilworth’s criminal

history category of III, called for a sentencing range of 360

months to life. The court sentenced Mr. Dilworth to 360

months’ imprisonment on each of his three convictions, with

the sentences to run concurrently.

With respect to Mr. Dilworth’s sentence, the first two

prongs of the test for plain error are established by the

district court’s reliance on facts that were neither admitted

by Mr. Dilworth nor proven to the jury beyond a reasonable
26 Nos. 03-3780, 03-3764 & 03-3884

doubt and by the mandatory application of the guidelines.

See White, 406 F.3d at 835. While retaining jurisdiction over

this appeal, we order a limited remand of Mr. Dilworth’s

case for proceedings consistent with Paladino, so that we

may complete our plain error analysis.

3. Mr. Davison’s Sentence

The jury’s verdict against Mr. Davison on the two distribution charges required a base offense level of 18, see

U.S.S.G. § 2D1.1(c)(11) (at least 1 gram but less than 2 grams

of cocaine base), which would have carried a sentence of 27

to 33 months. However, despite the fact that the jury had

acquitted Mr. Davison on the conspiracy charge, the district

court at sentencing found by a preponderance of the evidence that Mr. Davison had been a member of the conspiracy and that more than 1.5 kilograms of cocaine base were

attributable to him as a result. These findings elevated

Mr. Davison’s combined offense level to 38. See id.

(1.5 kilograms or more of cocaine base). The district court

also applied a two-level enhancement to Mr. Davison’s

sentence for possession of a dangerous weapon in connection with a drug offense. See id. § 2D1.1(b)(1). The final

offense level of 40, taken together with Mr. Davison’s

criminal history category, yielded a sentencing range of 292

to 365 months. The district court sentenced Mr. Davison to

360 months’ imprisonment, to consist of two 180-month

terms of imprisonment running consecutively.

As with his codefendants’ sentences, we must conclude

that Mr. Davison’s sentence fulfills the first two prongs of

plain error because the district court’s sentence was based

on facts neither admitted by Mr. Davison nor proven to the

jury beyond a reasonable doubt and because the court sentenced him believing that the guidelines were mandatory.
Nos. 03-3780, 03-3764 & 03-3884 27

7 Other circuits similarly have concluded that Watts continues to

apply after Booker. See, e.g., United States v. Magallanez, 408 F.3d

672, 684 (10th Cir. 2005) (holding that Watts, along with 18 U.S.C.

§ 3661, “remains in full force” after Booker); United States v.

Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (noting that, after

Booker, “sentencing judges can continue to consider relevant

acquitted conduct when applying the Guidelines in an advisory

manner”) petition for cert. filed (U.S. July 20, 2005) (No. 05-5467).

Furthermore, overruling a precedent of the Supreme Court of the

United States is the province of the Supreme Court alone. See

State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s

(continued...)

We order a limited remand, while retaining jurisdiction, for

proceedings consistent with our decision in Paladino.

The district court found for sentencing purposes that

Mr. Davison was a member of the conspiracy despite the

fact that the jury acquitted him on the conspiracy charge. In

United States v. Watts, 519 U.S. 148 (1997), the Court held

that a court is permitted to consider a broad range of

information for sentencing purposes, including conduct

related to charges of which the defendant was acquitted. See

id. at 152-55. The Court based its holding, in part, on 18

U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of

a person convicted of an offense which a court of the United

States may receive and consider for the purpose of imposing

an appropriate sentence.”), see Watts, 519 U.S. at 151, and

also on the notion that “different standards of proof . . .

govern at trial and sentencing,” id. at 155.

We join all the other courts that have confronted the issue

in holding that the Supreme Court’s holding in Watts remains the law after Booker.

7 See Booker, 125 S. Ct. at 754-55
28 Nos. 03-3780, 03-3764 & 03-3884

7 (...continued)

prerogative alone to overrule one of its precedents.”).

USCA-02-C-0072—8-15-05

(remarking that “[n]one of our prior cases is inconsistent

with today’s holding” and specifically reviewing the holding of Watts); cf. id. at 760 (noting that preventing sentencing

court from finding facts relevant to sentencing “would

undermine the sentencing statute’s basic aim of ensuring

similar sentences for those who have committed similar

crimes in similar ways”).

Conclusion

For the foregoing reasons, we affirm the defendants’ convictions. While retaining jurisdiction, we remand this case

to the district court for proceedings consistent with this

opinion.

IT IS SO ORDERED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit