United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 23, 2007

Decided May 24, 2007

Before

 Hon. FRANK H. EASTERBROOK, Chief Judge

 Hon. JOEL M. FLAUM, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

No. 05-4165

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES A. COOPER,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of Illinois

No. 4:03CR40059-001 DRH

David R. Herndon, 

Judge.

O R D E R

James Cooper and his confederates dealt powder and crack cocaine. A jury

found him guilty on drug and gun charges, 21 U.S.C. §§ 846, 841(a)(1); 18 U.S.C.

§ 922(g)(1), and the district court sentenced him within the applicable guidelines

range to a total of 285 months’ imprisonment. Cooper filed a notice of appeal, but

his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S.

738 (1967), because he cannot discern a nonfrivolous issue to pursue. Counsel’s

supporting brief is facially adequate, and Cooper has responded to our invitation

under Circuit Rule 51(b) to comment on counsel’s submission. We limit our review

to the potential issues identified in counsel’s brief and Cooper’s response. See

United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 05-4165 Page 2

Police sent an informant to make three separate controlled buys of crack from

James Golden, who ran drugs for Cooper. At trial Golden testified for the

government that on all three occasions he used the informant’s cell phone to contact

Cooper, who then—outside of the informant’s view—delivered the drugs. Golden

also testified that he acted as the middleman for Cooper in other drug transactions

and that Cooper occasionally fronted him drugs, expecting payment only after he

resold them. The informant corroborated Golden’s account. 

Surveillance officers who monitored the controlled buys also testified that

they observed Cooper and Golden meet during all three transactions, and that they

found the marked money from the third purchase in Cooper’s car when they

arrested him. Following his arrest, Cooper disclosed after Miranda warnings the

numbers assigned to his pager and cell phone; those numbers were dialed from the

informant’s cell phone during the controlled buys. Officers also executed a search

warrant of Cooper’s apartment and found roughly 540 grams of crack, 340 grams of

powder cocaine, three firearms, and $8,400 in currency. The police overlooked

another $112,000 in $20 bills that a maintenance man found later. Over trial

counsel’s objection of unfair prejudice, the district court admitted Cooper’s financial

affidavit supporting his request for appointed counsel. In that affidavit he asserted

that he was financially unable to obtain an attorney because he earned only $300

per month.

The government also called nine other witnesses who bought drugs from

Cooper, sometimes through middlemen. One witness explained that Cooper would

usually front him drugs twice a day. He testified that they would split “fifty-fifty”

the proceeds from the ensuing drug sales—the witness sold the crack for twice what

he agreed to pay the defendant. 

In the brief supporting his motion to withdraw, counsel identifies a litany of

potential arguments—many requiring no discussion here—but concludes that all of

them would be frivolous. Both counsel and Cooper first consider whether Cooper

could argue that the government failed to present sufficient evidence to convict him

of conspiracy to possess and distribute crack. Although trial counsel moved for a

judgment of acquittal after the government rested, he failed to renew this motion at

the close of all the evidence; our review thus would be for plain error. See United

States v. Owens, 301 F.3d 521, 527-28 (7th Cir. 2002). 

To prove the conspiracy count the government had to show not a buyer-seller

relationship between Cooper and those who bought crack from him, but rather that

he worked in concert with others to sell drugs. See United States v. Smith, 393 F.3d

717, 719-20 (7th Cir. 2004). We have held that an established method of

payment—like fronting drugs—and a shared stake in the sale of the drugs can

demonstrate this type of joint effort. Id. At trial one witness testified that Cooper
No. 05-4165 Page 3

typically fronted him drugs twice each day, and that they split the proceeds from

his sales. Golden likewise testified that Cooper fronted him drugs, and that if he

consumed any of those himself—as he often did—he would “work it off by selling

more” drugs for Cooper. Thus, we agree with counsel that arguing that this

evidence is insufficient to support Cooper’s conspiracy conviction would be frivolous. 

Counsel next considers whether Cooper could argue that the district court

erred by denying his pro se motion for appointment of substitute counsel. We

review such rulings only for an abuse of discretion, see United States v. Best, 426

F.3d 937, 947 (7th Cir. 2005), and we agree with counsel that it would be frivolous

to argue that there was an abuse of discretion here. The district court conducted a

hearing on the motion—at which Cooper and trial counsel were present—and the

court determined that there had not been an irretrievable breakdown between

them. This conclusion finds support in Cooper’s pretrial motion, which alludes to

letters and meetings between Cooper and his counsel regarding potential motions,

witnesses, and defense theories. Although Cooper disagreed with some of trial

counsel’s tactical decisions, their relationship never reached the point of a total

breakdown that would have warranted substituting another lawyer. See id. at

947-48. After all, counsel, not the defendant, makes these strategic decisions

because they require legal training. See United States v. Babul, 476 F.3d 498, 500

(7th Cir. 2007); United States v. Johnson, 223 F.3d 665, 670 (7th Cir. 2000). 

Counsel and Cooper next consider whether Cooper could argue that the

delayed commencement of his trial violated his rights under the Speedy Trial Act,

18 U.S.C. §§ 3161-74. Cooper, though, never moved to dismiss the indictment on

the ground that his statutory right to a speedy trial was violated, so that argument

is waived. See 18 U.S.C. § 3162(a)(2); United States v. Morgan, 384 F.3d 439, 443

(7th Cir. 2004). 

In his Rule 51(b) response, Cooper suggests that a police officer lied in an

affidavit for a warrant to search his apartment and contends that the district court

should have conducted a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to

determine whether to suppress the drugs and guns found there. The affiant

represented that the informant who made the controlled buys had fingered Cooper

as the source of the drugs, but, as Cooper notes, the informant could not identify

him at trial. It would be frivolous, however, to raise a Franks argument on appeal. 

Cooper forfeited that argument by not moving to suppress. See United States v.

Johnson, 415 F.3d 728, 730 (7th Cir. 2005); United States v. McDonald, 723 F.2d

1288, 1292-93 (7th Cir. 1983). And in any event, Cooper was not entitled to a

Franks hearing because, even after setting aside the allegedly false information,

sufficient content in the affidavit supports a finding of probable cause. See United

States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003). The affiant stated that
No. 05-4165 Page 4

agents observed Cooper meet with Golden during the controlled buys and saw

Cooper stop at his apartment immediately before one of the purchases. 

Counsel also questions whether the district court made errors in its multiple

evidentiary rulings during Cooper’s trial. First, counsel considers whether Cooper

could argue that the district court admitted evidence that was unfairly prejudicial. 

The court allowed in Cooper’s postarrest statement in which he identified the

numbers assigned to his pager and cell phone. Both numbers appeared on the

informant’s cell phone during the controlled buys, and like any probative evidence

the statement was prejudicial to Cooper. See Souffront, 338 F.3d at 826. But to

argue that it unfairly prejudiced Cooper would be frivolous. See Old Chief v. United

States, 519 U.S. 172, 180 (1997) (“The term ‘unfair prejudice,’ as to a criminal

defendant, speaks to the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof specific to the offense

charged.”); United States v. Fawley, 137 F.3d 458, 466 (7th Cir. 1998). The same is

true for Cooper’s affidavit supporting his request for appointed counsel. In that

affidavit Cooper asserts that he had a meager income, which the court found

relevant in light of the more than $120,000 in cash found in his apartment. 

Although it was damaging because it suggests that Cooper had an illicit source of

income, the affidavit did not lure the jury into finding him guilty based on improper

reasons. 

Counsel also considers arguing that the witness used to introduce Cooper’s

gambling records from Harrah’s Casino—which reveal that from 1999 to 2004 he

played a total of $334,675 on cash games and lost $44,555—was unqualified to do

so. See Fed. R. Evid. 803(6). We have held that a witness laying the foundation for

business records must have knowledge concerning their creation but doesn’t need

personal knowledge about the specific entries in those records. See United States v.

Lawrence, 934 F.2d 868, 870-71 (7th Cir. 1991). Here, the casino’s regulatory

compliance officer testified that the records were compiled from a regularly

maintained computer tracking system and described in detail the casino’s method of

recording their patrons’ bets. Thus, arguing that she was unqualified to introduce

the evidence would be frivolous. 

Counsel next raises two potential issues regarding the jury. He first

addresses whether Cooper could argue that the district court improperly excused a

juror on the third day of trial based on her representation that she could not

concentrate because she had been kicked out of her home. Cooper, however, waived

this argument by agreeing with the district court’s proposal to excuse the juror and

replace her with an alternate. See United States v. Olano, 507 U.S. 725, 733 (1993);

United States v. Cunningham, 405 F.3d 497, 502 (7th Cir. 2005); Johnson, 223 F.3d

at 669-70. Counsel also considers asking whether the district court erred by

refusing to grant a motion for mistrial after two jurors overheard a nervous
No. 05-4165 Page 5

government witness complain that she had not received money for lunch as

promised by the government. We would review the court’s denial of this motion for

abuse of discretion. United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir.

1998). Outside of the presence of the other jurors, the court held a hearing where

both jurors explained what they observed and asserted that they would assess the

witness’ credibility from what transpired during the trial alone. Cf. Schaff v.

Snyder, 190 F.3d 513, 534 (7th Cir. 1999) (“[The] unintended receipt of extraneous

information by the juror was an outside unauthorized communication, but it

certainly was not a purposeful intrusion into the sanctity of the juror’s domain.”). 

On this record it would be frivolous to argue that the court abused its discretion by

refusing to grant a mistrial. 

Counsel also raises three potential arguments regarding Cooper’s overall

prison sentence. First, counsel and Cooper consider whether Cooper could argue

that the district court miscalucated the drug quantity, which largely controlled his

offense level under the guidelines. We agree with counsel that this argument would

be frivolous; Cooper’s base offense level of 36 was justified simply by the 540 grams

of crack found in his apartment. See 2D1.1(c)(2). 

Both counsel and Cooper also question whether the district court properly

increased Cooper’s offense level based on the firearms found in his apartment. See

U.S.S.G. § 2D1.1(b)(1). This adjustment applies “unless it is clearly improbable

that the weapon was connected with the offense.” Id. cmt. n.3; United States v.

Cashman, 216 F.3d 582, 587 (7th Cir. 2000). Here, officers testified that they found

the firearms at Cooper’s residence, where he also stored large amounts of drugs,

and Cooper offered no evidence that they were unconnected with his offense. Thus,

it would be frivolous to argue that the court erred by applying this adjustment. 

Counsel also considers whether Cooper could argue that his prison sentence

is unreasonable because one of his co-conspirators, Golden, was sentenced to 70

months’ imprisonment, while he was sentenced to 235 months’ imprisonment. 

Cooper’s sentence was within the properly calculated guidelines range and is thus

entitled to a presumption of reasonableness. See United States v. Gama-Gonzalez,

469 F.3d 1109, 1110 (7th Cir. 2006). Although the Supreme Court recently granted

a writ of certiorari to consider whether it is consistent with United States v. Booker,

543 U.S. 220 (2005), to afford a presumption of reasonableness to a sentence within

the guidelines range, see United States v. Rita, No. 05-4674, 177 F. App’x 357 (4th

Cir. May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), the

resolution of that question would not affect our conclusion that challenging the term

imposed here would be frivolous. Sentencing courts are required to avoid

“unwarranted sentencing disparities among defendants . . . found guilty of similar

conduct,” 18 U.S.C. § 3553(a)(6), but that requirement means that courts must

avoid “an unjustified difference across judges (or districts) rather than among
No. 05-4165 Page 6

defendants to a single case.” United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.

2006). And in any event, Cooper and Golden were not found guilty of similar

conduct. Officers found over 540 grams of crack cocaine, 340 grams of powder

cocaine, and three firearms at Cooper’s apartment, while Golden was found with a

single rock of crack. 

Finally, we are in agreement with counsel that if Cooper wishes to argue that

trial counsel was ineffective for refusing to file requested motions and call certain

witnesses, he would be better served by bringing that claim through a collateral

proceeding under 28 U.S.C. § 2255. See, e.g., Massaro v. United States, 538 U.S.

500, 504-05 (2003); United States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005). 

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.