In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-2596 & 05-2633

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLAUDE WILEY, JR. and

TATU M. BROWN,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 04 CR 7—John Daniel Tinder, Judge.

____________

ARGUED NOVEMBER 6, 2006—DECIDED FEBRUARY 6, 2007

____________

Before RIPPLE, WILLIAMS and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Claude Wiley, Jr. and Tatu M.

Brown were charged in a single indictment with various

counts relating to a drug conspiracy. Mr. Brown subsequently entered a conditional guilty plea to a single

count of conspiracy and the district court sentenced him

to 188 months’ imprisonment. Mr. Wiley proceeded to

trial and was convicted of a conspiracy charge and of

certain distribution charges. The district court sentenced

him to 395 months’ imprisonment.
2 Nos. 05-2596 & 05-2633

Mr. Brown and Mr. Wiley timely filed these direct

appeals. Mr. Brown contends that evidence obtained from

a search of his home was inadmissible because the affidavit in support of the warrant did not establish probable

cause. He further submits that the good faith exception to

the warrant requirement is inapplicable. Mr. Wiley contends that the jury was instructed improperly as to the

weight to give the testimony of Government informants

who received a benefit in exchange for their testimony.

For the reasons set forth in the following opinion, we

affirm the convictions of both defendants.

I

BACKGROUND

Mr. Brown and Mr. Wiley were charged in a single, fourcount superseding indictment with several offenses

under 21 U.S.C. § 841(a)(1). Both defendants faced a

charge of conspiracy to possess with intent to distribute

and conspiracy to distribute cocaine hydrochloride

(“powder cocaine”) and cocaine base (“crack”) as well as

a charge of crack distribution. Mr. Wiley also was charged

with distribution of powder cocaine. The indictment

alleged that Mr. Wiley obtained powder cocaine in Chicago

and that, by himself and with the assistance of others,

he transported the cocaine to Terre Haute, Indiana,

where he and Mr. Brown both distributed cocaine powder

and also manufactured and distributed crack.

A. Facts and Proceedings Involving Mr. Brown

1. The Search Warrant

On January 16, 2003, Drug Enforcement Administration

(“DEA”) Special Agent Joanna Zoltay executed an eight-
Nos. 05-2596 & 05-2633 3

1 The affidavit refers to him as “Brit,” although the remainder

of the record makes clear that his name is in fact “Britt.”

page affidavit detailing evidence linking Mr. Brown to

drug trafficking. This affidavit was intended to accompany an application for a search warrant for Mr. Brown’s

residence at 2320 2nd Avenue, Terre Haute, Indiana. In

that affidavit, Agent Zoltay first recounted facts about a

controlled buy of cocaine in which Mr. Brown was involved. Specifically, on September 24, 2002, a confidential source (“CS”), whose information previously had

resulted in over ten convictions of narcotics traffickers,

contacted the DEA and stated that the CS could purchase cocaine from a man named Donte Britt.1

 The DEA

prepared the CS for a controlled buy from Britt later

that same afternoon, including outfitting him with a

listening device. The CS then traveled to a motel parking

lot. Britt met the CS at the CS’ vehicle, then walked to a

green Ford Expedition parked across the street. The CS

called out over the wire that he observed Mr. Brown in

the Expedition. A license plate check revealed that the

Expedition was registered to Annalee Monts, Mr. Brown’s

girlfriend, at the 2nd Avenue residence. Britt returned

to the CS’ vehicle from the Expedition carrying 28.9 grams

of cocaine which the CS purchased and handed over to the

police. Agent Zoltay further stated that it was consistent

with her experience in narcotics investigations that “upper

level narcotics traffickers do not participate in transactions with persons they do not know, but will deliver to a

middleman such as Brit[t], who then conducts the transaction.” R.59, Ex.C at 2.

Agent Zoltay also recounted statements of two additional

sources who had identified Mr. Brown as a drug trafficker.
4 Nos. 05-2596 & 05-2633

First, a cooperating individual (“CI-1”), arrested on crack

distribution charges, had informed the police that he

had trafficked cocaine for a period of several years and

that Mr. Brown was his primary drug source during that

period. He also stated that Mr. Brown supplied other

distributors, including Britt and Seagrams Poston. CI-1

told agents that he had witnessed Mr. Brown, on an

unspecified date, cooking powder cocaine into crack in the

2nd Avenue residence. CI-1 further stated that he had

accompanied Mr. Brown when Mr. Brown delivered two

ounces of crack to a man named Derrick Hatfield in late

October 2002; Agent Zoltay herself had participated in

surveillance of Hatfield on October 29, 2002, when Hatfield delivered two ounces of crack to a DEA CS. A second cooperating individual (“CI-2”), arrested on cocaine

trafficking charges, told DEA agents that he had purchased high-quality marijuana from Mr. Brown.

Finally, Agent Zoltay’s affidavit provided certain details

from independent DEA investigations connecting the

2nd Avenue residence both to Mr. Brown and to drug

trafficking activity. She stated that, on January 14, 2003,

DEA agents conducting surveillance on the 2nd Avenue

residence observed Mr. Brown exit the house to assist

Monts in carrying groceries from the green Expedition,

which had been seen at the controlled buy from Britt in

September 2002. Agents also observed Poston, who had

a prior conviction for cocaine possession, enter the residence with a backpack and leave several hours later

without it. On January 15, 2003, agents observed Mr.

Brown exit a car, unlock the front door of the 2nd Avenue

residence, enter, then later exit, lock the door and return

to the car. On the same date, Mr. Brown was stopped

while driving the green Expedition registered to Monts
Nos. 05-2596 & 05-2633 5

in connection with an investigation relating to a stolen

Expedition. Also on January 15, 2003, a DEA agent confirmed with a postal inspector that Mr. Brown received

mail at the 2nd Avenue residence.

In addition to the specific evidence linking Mr. Brown

to drug trafficking activity and to the 2nd Avenue residence, Agent Zoltay provided additional background

information drawn from her own experience, including

the likelihood that certain types of evidence relating

to drug trafficking activity would be found in the residence of a suspected drug trafficker.

On January 16, 2003, a magistrate judge issued a

search warrant for the 2nd Avenue home. The officers

executed the warrant later that same day. The inventory

from the search included numerous firearms and ammunition, a small quantity of marijuana and a marijuana

pipe, bullet proof vests, a police scanner and Illinois license plates. R.59, Ex.B.

2. Mr. Brown’s Motion to Suppress and the Plea

Agreement

Before his trial, Mr. Brown moved to suppress the

evidence obtained in the search. He challenged the sufficiency of the affidavit to sustain the magistrate judge’s

probable cause determination. The district court denied

the motion and admitted the evidence. In its opinion,

the district court first addressed the reliability of the

informants. The court identified CI-1 as the key informant

and determined that, with respect to this source, sufficient reliability had been established through corroboration by police investigation and by the statements

of the other informants. First, the information from CS,
6 Nos. 05-2596 & 05-2633

whose reliability is established by the statement in the

affidavit that he had assisted in investigations leading to

over ten convictions, connected Mr. Brown to Britt, as had

CI-1. CI-1’s statements regarding deals to Poston were

corroborated, the court found, however slightly, by the

observations of the agents at the 2nd Avenue residence,

who saw Poston enter with the backpack and leave without it. With respect to Mr. Brown’s sale of cocaine to

Hatfield, a controlled buy by a DEA source from Hatfield corresponded to the date and drug quantity identified by CI-1. The district court concluded that, taken

together, these statements tended to establish as reliable

the information that CI-1 had purchased cocaine from

Mr. Brown and had observed Mr. Brown cooking cocaine

in the searched residence. Moreover, reasoned the court,

the statements of CI-1 should be credited because they

were offered against CI-1’s penal interest. The court

thus concluded that the DEA had corroborated sufficiently CI-1’s statements through investigation. It further

determined that, based on the totality of circumstances,

the magistrate judge had a substantial basis for concluding that the affidavit contained probable cause to support a finding that Mr. Brown was a drug trafficker.

The court also found that the reliability of CS was

supported not only by the agent’s direct statement in the

affidavit, but also because the CS’ statements placing

Mr. Brown in the Expedition at the time of the controlled

buy from Britt in 2002 were corroborated by an independent investigation connecting Mr. Brown and the Expedition.

Turning to the question of nexus between the alleged

criminal activity and the premises, the district court

concluded that the requisite connection was established by
Nos. 05-2596 & 05-2633 7

the nature of the criminal activity at issue and the probability that evidence of drug dealing may be found where

drug dealers live. R.71 at 13 (citing United States v. Lamon,

930 F.2d 1183, 1188 (7th Cir. 1991)). More specifically,

the court concluded that the affidavit sufficiently linked

Mr. Brown himself to the 2nd Avenue home. The most

critical evidence, in the court’s view, was Mr. Brown’s

possession of a key to the house, suggesting some element of dominion and control over the location. In addition, he was observed carrying in groceries, and he apparently had received mail at the residence. Refusing to

accept as a general proposition that a drug dealer’s home

categorically establishes the nexus to criminal activity

required to support a warrant, the court found further

evidence connecting Mr. Brown’s criminal activities to the

home was sufficient to establish the requisite nexus.

Specifically, CI-1 had stated that he had observed Mr.

Brown cooking cocaine into crack at the residence.

The court then turned to the case authorities relied upon

by Mr. Brown in support of his lack-of-nexus argument.

In the court’s view, those cases involved substantially

thinner connections to the home. Specifically, Mr. Brown

had contended that his case was substantially similar

to two cases in which a court had concluded that a

nexus to the searched premises was lacking. However, as

the district court noted, in one of those cases the only

connection was a vehicle registration; in another, there

was simply a conclusory statement that a defendant

resided at the place to be searched. R.71 at 14-16 (citing

United States v. McNeal, 82 F. Supp.2d 945, 957-60 (S.D. Ind.

2000), and United States v. Dickerson, 975 F.2d 1245 (7th Cir.

1992)). In neither case, concluded the court, did the warrant include specific statements regarding the defendant’s
8 Nos. 05-2596 & 05-2633

entry or exit from the house, possession of a key, receipt of

mail, or illegal activity within the house. Given these

facts, and the court’s belief that there was a certain inherent likelihood that evidence of drug activity would be

found in a drug dealer’s home, the court held that there

was a substantial basis for probable cause linking the home

with Mr. Brown’s illegal activities.

The district court then turned to Mr. Brown’s final

argument that the information provided in the affidavit

was stale at the time that it was presented to the magistrate

judge. The court concluded that, even though some of the

evidence was from several months prior to the application, it nevertheless established a pattern of on-going

criminal activity. In such circumstances, the court concluded, “the passage of time becomes less critical,” and

staleness less of a concern in establishing probable cause.

R.71 at 17 (citing Lamon, 930 F.2d at 1188). In sum, although calling it a “close case,” the district court determined that the warrant should be upheld as supported by

probable cause. R.71 at 17.

Turning to the issue of good faith reliance, the district

court concluded that, even if the affidavit were insufficient to establish probable cause, it was not so lacking as

to render belief by the executing officers in the existence

of probable cause “entirely unreasonable.” Id. at 18 (quoting United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002)).

Therefore, the court held in the alternative that the

good faith exception was applicable.

Having determined, on alternate grounds, that the

search did not violate the Fourth Amendment, the court

denied the motion to suppress.

Following this ruling, Mr. Brown pleaded guilty to,

and was sentenced on, the conspiracy count only, but
Nos. 05-2596 & 05-2633 9

conditioned his plea on his right to appeal the suppression issue.

B. Proceedings Involving Mr. Wiley

1. Investigation

In 2003, the Vigo County Drug Task Force suspected

Mr. Wiley of dealing drugs in the Terre Haute area. At the

about the same time, Timothy Bailey was arrested and

charged with certain methamphetamine and marijuana

offenses in Vigo County. As a part of a deal struck with

the prosecutor’s office, Bailey agreed to cooperate as an

informant to the Drug Task Force on Mr. Wiley’s drug

trafficking activities. Bailey also agreed to participate in

a controlled buy of powder cocaine from Mr. Wiley for

the Task Force.

On the morning of August 21, 2003, Bailey arranged a

meeting with Mr. Wiley to purchase four-and-a-half

ounces of powder cocaine for $3000 later that day. Detective Charles Burress of the Terre Haute City Police prepared Bailey for the buy. He strip-searched Bailey and

also searched his vehicle prior to the actual purchase,

proceeded to a location to view Mr. Wiley’s residence

and observed Bailey enter the residence with money

provided by law enforcement to purchase cocaine. Bailey

testified that he requested the cocaine from Mr. Wiley

and waited with Mr. Brown for some time, smoking

marijuana in the kitchen, while Mr. Wiley and his cousin

finished playing a video game. R.71 at 211. According to

Bailey, Mr. Brown left sometime before Bailey. Id. Bailey

then left the house forty-five minutes to an hour later and

proceeded to a drop location to meet with Detective

Burress and provide to him what was later determined
10 Nos. 05-2596 & 05-2633

to be 121 grams of cocaine. Bailey said that he had purchased this cocaine from Mr. Wiley.

Agents conducted surveillance on Mr. Wiley’s residence

both before and during the buy and remained there after

Bailey left while a search warrant was obtained. Mr. Wiley

left the residence during this period; agents on the

scene asked that a marked police car conduct a traffic

stop of the car he was traveling in and detain him. The

agents obtained the warrant later that afternoon and

searched his home where they discovered crack in the

kitchen freezer and other drug paraphernalia.

2. The Trial and the Jury Instruction

At trial, Detective Burress and Bailey testified about

the controlled buy leading to the search of Mr. Wiley’s

home. Bailey also testified that he had obtained small

amounts of powder cocaine from Mr. Brown for several

years during the 1990s in Terre Haute and that, from

1994 until 2001, when he was arrested, he had purchased

large amounts of cocaine from Mr. Wiley and Mr. Brown.

The Government also called Michael Collier as a witness. He testified that he had purchased crack from

Mr. Brown for several years and that during that time, he

came to know Mr. Wiley as “Cuz,” Mr. Brown’s cocaine

source. Collier testified that he previously had shuttled

cocaine from Mr. Wiley in Chicago to Mr. Brown in Terre

Haute. He also stated that he had traveled with Mr. Brown

to Chicago on another occasion. While in Chicago,

Mr. Brown had seen Mr. Wiley, among others, and, on

returning to Terre Haute, Mr. Brown had cocaine that he

had not possessed earlier. Collier told the jury that, in

exchange for his testimony, the Government had agreed
Nos. 05-2596 & 05-2633 11

not to file an information alleging a prior felony drug

conviction. Consequently, Collier avoided the possibility

of a sentencing enhancement based on that prior conviction in his future trial on federal cocaine charges. Because

of this agreement, his minimum sentence would be ten,

not twenty, years.

At the conclusion of a two-day trial, the court instructed

the jury. Included among the instructions was the following cautionary instruction pertaining to informant credibility:

You have heard testimony from several witnesses who:

(1) received a benefit from the [G]overnment in

connection with this case, namely a promise of a

recommendation for a reduced sentence;

(2) stated that they were involved in the commission of the offenses as charged against the Defendants; and

(3) have pleaded guilty to an offense arising out of

the same occurrence for which the Defendants are

now on trial. Their admission of guilt is not to be

considered as evidence against the Defendants on

trial.

You may give the testimony of such witnesses

the weight as you feel it deserves, keeping in mind

that it is to be received with caution and weighed

with great care.

R.75 at 322. The jury returned a verdict of guilty on a lesser

included conspiracy charge and on distribution charges

for both powder cocaine and cocaine base. The district

court sentenced Mr. Wiley to 395 months’ imprisonment.
12 Nos. 05-2596 & 05-2633

II

DISCUSSION

A. Mr. Brown’s Motion to Suppress

Mr. Brown asks that we review the ruling of the district

court denying his motion to suppress the evidence obtained in the search of his home. Whether a warrant

affidavit includes sufficient indicia of probable cause is a

legal conclusion that we review de novo. United States v.

Harris, 464 F.3d 733, 738 (7th Cir. 2006).

We have stated:

A magistrate’s determination of probable cause is to

be given considerable weight and should be overruled only when the supporting affidavit, read as a

whole in a realistic and common sense manner, does

not allege specific facts and circumstances from which

the magistrate could reasonably conclude that the

items sought to be seized are associated with the

crime and located in the place indicated.

United States v. Newsom, 402 F.3d 780, 782 (7th Cir. 2005)

(internal citation and quotation marks omitted). The

probable cause inquiry “is practical, not technical, and

we consider the totality of the circumstances.” United

States v. Anderson, 450 F.3d 294, 302 (7th Cir. 2006) (internal

citations and quotation marks omitted). However, where

“an affidavit is all that was presented to the issuing

judge, the warrant’s validity rests on the strength of the

affidavit.” Id. When an affidavit is based on informant tips,

our probable cause inquiry is also based on the totality of

the circumstances. See Illinois v. Gates, 462 U.S. 213, 230

(1983). However, four factors are particularly relevant as

a part of this inquiry. Specifically, we shall pay close at-
Nos. 05-2596 & 05-2633 13

tention to: “(1) the extent to which the police have corroborated the informant’s statements; (2) the degree to which

the informant has acquired knowledge of the events

through firsthand observation; (3) the amount of detail

provided; and (4) the interval between the date of the

events and police officer’s application for the search

warrant.” United States v. Koerth, 312 F.3d 862, 866 (7th Cir.

2002).

Mr. Brown contends that various omissions demonstrate the absence of probable cause. First, Mr. Brown notes

that the affidavit fails to establish the credibility of the

informants on which it relies, particularly CI-1 and CI-2.

With respect to the information provided by CI-1,

Mr. Brown argues that the account does not provide a date

on material facts, such as the observation of Mr. Brown

cooking cocaine. Accordingly, he submits, the facts could

be so stale that, at the time the warrant was obtained,

probable cause no longer existed. With respect to CI-2,

Mr. Brown notes that the affidavit does not provide any

evidence of a link to the residence to be searched.

Mr. Brown’s argument seeks to separate each assertion

in the affidavit and to find an infirmity with all of them.

The flaw in Mr. Brown’s approach is its failure to recognize

the nature of the probable cause inquiry: We, like the

issuing magistrate judge, assess the totality of circumstances presented and make a practical, common-sense

determination about the existence of probable cause on

the basis of the affidavit as a whole. Credibility of informants, nexus to the searched premises and to illegal

activity, and the age of the information are all relevant

considerations in this inquiry, but no single piece of

information need satisfy every relevant consideration
14 Nos. 05-2596 & 05-2633

2 This is not a case where the defendant alleges that the affidavit included false information (or material omissions) that

must be excised (or must be added) before the determination of

probable cause is made. See United States v. Merritt, 361 F.3d

1005, 1010 (7th Cir. 2004), vacated and remanded in light of

United States v. Booker, 543 U.S. 220 (2005); see generally Franks

v. Delaware, 438 U.S. 154 (1978).

before we may consider it.2 When specific facts and

circumstances are alleged that reasonably could lead a

magistrate judge to believe that the fruits or instrumentalities of a crime are to be found at a particular location,

we shall give great weight to that determination. See

Newsom, 402 F.3d at 782.

We now turn to an examination of the facts relevant

in assessing the existence of probable cause in the affidavit

at issue. Three separate informants provided information linking Mr. Brown to drug activity; all claimed firsthand knowledge of Mr. Brown’s drug activities. CS was a

source from which the DEA agent preparing the affidavit

previously had received reliable information. CI-1’s

information overlapped to some degree with CS’ information, insofar as it linked Mr. Brown to Britt, the

controlled-buy target of CS and the DEA. CI-1’s information regarding Mr. Brown’s residence was corroborated

by the independent investigation that revealed his free

entry and exit from the home during the relevant period.

CI-1’s information regarding Mr. Brown’s drug activities was corroborated by the information about the

separate controlled buy from Hatfield; CI-1 stated that he

and Mr. Brown had provided the original cocaine for that

transaction. CI-2’s information admittedly adds little

insofar as it relates to an entirely different drug and
Nos. 05-2596 & 05-2633 15

points to no specific occurrences tending to corroborate

anything the other informants had stated other than the

general proposition that Mr. Brown trafficked in narcotics.

Considering the totality of the circumstances described

in the affidavit, we conclude that the district court was

correct in its ruling that the magistrate judge had a substantial basis for concluding that probable cause existed.

We are not persuaded by Mr. Brown’s contentions to the

contrary. We acknowledge that the affidavit does not

provide any statements attesting to the credibility of

either CI-1 or CI-2 and that, in fact, the information contained in the warrant about the individuals (that they

were cooperating with law enforcement following their

own arrests) does not strongly suggest that their accounts are unimpeachable. Nonetheless, CI-1’s statement,

which provides the most material details, is corroborated

generally by CS’ and CI-2’s identification of Mr. Brown as

a narcotics trafficker. CI-1’s identification of Mr. Brown

with cocaine trafficking specifically and his connection to

Britt are both items which are corroborated by CS’ statement. On perhaps the affidavit’s most convincing and

most damaging facts, as far as Mr. Brown is concerned,

further corroboration was provided by independent

investigation, such as the controlled buys from Britt and

Hatfield, which add “great weight” to the reliability of an

informant’s tip. United States v. McKinney, 143 F.3d 325, 329

(7th Cir. 1998). In addition, under the facts and circumstances presented here, staleness does not greatly limit

the information presented because the information possessed by the DEA indicated an on-going pattern of

criminal activity. United States v. Lamon, 930 F.2d 1183,

1187-88 (7th Cir. 1991).

Finally, on the issue of nexus, “[p]robable cause does

not require direct evidence linking a crime to a particular
16 Nos. 05-2596 & 05-2633

place. Instead, issuing judges are entitled to draw reasonable inferences about where evidence is likely to be

found given the nature of the evidence and the type of

offense. In the case of drug dealers, evidence is often found

at their residences.” Anderson, 450 F.3d at 303 (internal

quotation marks and citations omitted). We agree with

the district court that it would be inappropriate to adopt

a categorical rule that would, in every case, uphold a

finding of probable cause to search a particular location

simply because a suspected drug trafficker resides there;

we nevertheless conclude that, in this case, a belief that a

sufficient nexus exists is supported by the affidavit itself.

Specifically, Agent Zoltay states that CI-1 observed

Mr. Brown cook cocaine into crack and that Poston, who

CI-1 identifies as another narcotics trafficker linked to

Mr. Brown, was observed by police entering the residence

and leaving a bag inside. These statements directly connect the residence to Mr. Brown’s trafficking activities. In

consideration of the totality of circumstances presented

to the magistrate judge and given the practical nature of

the probable cause determination, we conclude that the

magistrate judge had a substantial basis to find probable

cause for the warrant to issue.

Even if probable cause was lacking, we still would not

exclude the evidence obtained unless Mr. Brown also

demonstrated that the officer could not reasonably have

believed that the facts set forth in the affidavit were

sufficient to support the magistrate judge’s determination of probable cause. Koerth, 312 F.3d at 866 (citing

United States v. Leon, 468 U.S. 897 (1984)).

We review de novo the district court’s conclusion that

law enforcement officers reasonably relied on a search

warrant that is subsequently invalidated. United States v.

Sidwell, 440 F.3d 865, 869 (7th Cir. 2006). The decision to
Nos. 05-2596 & 05-2633 17

seek a warrant is prima facie evidence that an officer

was acting in good faith. Koerth, 312 F.3d at 868. The

defendant must defeat this presumption with evidence

that the issuing magistrate judge wholly abandoned his

judicial role or that the officer’s affidavit was so lacking

in indicia of probable cause as to render official belief in

its existence entirely unreasonable. Id.

Mr. Brown’s argument on this point is relatively thin,

and makes broad generalizations that “no facts” corroborate informant information, that “no facts” establish that

Mr. Brown lived at the residence, and that “no nexus” was

made between Brown’s dealing and the residence. Appellants’ Br. at 24. These statements are not supported by

the record. Although corroboration of some elements of

the informants’ statements is lacking, independent

police corroboration was a significant factor in establishing the reliability of the informants. Likewise, some

evidence, specifically Mr. Brown’s possession of a key and

the statement of the postal inspector, established Mr.

Brown’s residence, and statements from CI-1 connected

the residence to the drug dealing activity. Accordingly,

even if the warrant itself were infirm, Mr. Brown has not

made substantial arguments that the good faith exception

should not apply. Therefore, the evidence is admissible,

and we affirm Mr. Brown’s conviction and sentence.

B. The Cautionary Instruction at Mr. Wiley’s Trial

Mr. Wiley asks that we review the language of the

cautionary instruction. At the outset, we note that Mr.

Wiley failed to object to this instruction at trial and,

therefore, he has forfeited this argument. Forfeited objections to jury instructions are reviewed for plain error.

United States v. Holmes, 93 F.3d 289, 292 (7th Cir. 1996).
18 Nos. 05-2596 & 05-2633

“[E]rror is plain, first of all, if it is clearly an error . . . . But

it must also affect the defendant’s substantial rights and,

in addition, seriously affect the fairness, integrity, or

public reputation of judicial proceedings.” United States

v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005) (internal

quotation marks and citations omitted). It must be “so

obvious, crucial, and egregious that we may and should

correct it even though no objection was made below.”

Backwater, Inc. v. Penn-American Ins. Co., 448 F.3d 962, 965

(7th Cir. 2006).

The Supreme Court has stated that informant testimony presents special credibility problems, and accordingly, careful instructions to the jury regarding credibility are appropriate. Banks v. Dretke, 540 U.S. 668, 701-02

(2004); see also On Lee v. United States, 343 U.S. 747, 757

(1952) (“The use of informers, accessories, accomplices,

false friends, or any of the other betrayals which are ‘dirty

business’ may raise serious questions of credibility. To

the extent that they do, a defendant is entitled to broad

latitude to probe credibility by cross-examination and

to have the issues submitted to the jury with careful

instructions.”).

In considering the matter of instructions regarding

informant credibility, this court has held that a special

instruction is not necessary as a matter of course and that,

as a general matter, a general credibility instruction

will suffice. United States v. Cook, 102 F.3d 249, 252-53 (7th

Cir. 1996). Moreover, we have emphasized that the district court is “best situated to detect and deal with threats

of unreliable testimony,” id. at 252, and therefore to

determine when such an instruction is advisable or necessary.

Mr. Wiley does not dispute the state of this circuit’s law.

Nor does he dispute that our review is limited to plain
Nos. 05-2596 & 05-2633 19

error because he failed to object at trial. He nonetheless

challenges the instruction given by the district court. He

contends essentially that the instruction was so ill-tailored

to the actual facts of the case that the jury reasonably

might not have understood to whom it was directed.

Mr. Wiley argues that reversal is required because, by

virtue of giving an instruction that is not required by this

circuit’s precedent, the district court clearly signaled that

it believed the testimony of the informant witnesses

posed a special danger to the fairness of the trial and that

a supplementary instruction was necessary under

the circumstances. Appellants’ Br. at 12-13. Mr. Wiley

bolsters his contention by pointing to record facts he

believes demonstrate reason for particular apprehension

regarding the informant testimony in this case, including a lack of a recording of the controlled buy from Bailey

and the absence of visual contact by investigators during the buy.

The instruction actually provided at trial refers generally to “witnesses who received a benefit from the

government,” and identifies that benefit as the promise of

a reduced sentence. R.75 at 322. The instruction also

states that these witnesses were involved in and pleaded

guilty to an offense arising out of the same occurrence

for which the defendants are on trial. The problem with

this instruction, in Mr. Wiley’s view, is that it deviates

from the pattern instruction in failing to name specifically

the witnesses to whom it should apply and that, on its

facts, it cannot be applied to the informants involved in

this case.

Although the instruction that was given was ill-tailored

to the facts of his case, we are persuaded that any error

was harmless under the circumstances.
20 Nos. 05-2596 & 05-2633

The informant-witnesses in this case are Bailey and

Collier. While the statements of each implicated themselves in the drug trade and in some involvement with

Mr. Wiley in that regard, neither was involved directly

in any occurrence for which Mr. Wiley currently stood

trial and neither pleaded guilty to any conduct arising

out of the conspiracy with which Mr. Wiley was charged.

Bailey received a reduced sentence in state court in exchange for his cooperation with the investigation and

prosecution of Mr. Wiley; Collier did not receive a sentence

reduction, as stated in the instruction, but was the beneficiary of a decision not to seek an enhancement of his sentence on the basis of a prior felony drug conviction.

Mr. Wiley’s argument first presupposes that, in the

course of this relatively short trial with relatively few

witnesses, the jury would have misunderstood to whom

this instruction was meant to apply. He apparently believes that a detailed parsing of the instruction would

have confused the jury to such an extent that it would

not have applied its cautions to either Bailey or Collier.

We cannot accept Mr. Wiley’s suggestion of the probable impact of the instruction. We further note that, even

if the jury had concluded that the instruction did not

apply to the informant-witnesses, the ultimate effect

would simply be that the general instruction on credibility, which asked the jury to consider witnesses’ potential bias and prejudice in determining the weight to give

their testimony, would be left to carry the day. It is our

duty to consider whether the instructions in their entirety

may have prejudiced the defendant by confusing or

misleading the jury, see United States v. White, 443 F.3d

582, 587-88 (7th Cir. 2006), but Mr. Wiley’s argument

suggests only the remote possibility that the jury could
Nos. 05-2596 & 05-2633 21

have been misled into thinking that the specific informant

instruction did not apply to any witness. If true, that leaves

him in precisely the position this circuit’s precedent allows:

no special instruction on informant credibility.

In addition, both informants admitted the benefits they

received during their testimony. In closing arguments,

Mr. Wiley’s counsel separately drew attention to the

particular credibility problem posed by informant testimony. These methods of informing the jury about the

dangers of such testimony are specifically approved of by

this court as generally providing adequate protection for a

defendant facing informant witnesses. See Cook, 102 F.3d

at 251 (“[T]he argument against giving [a special] instruction is . . . straightforward: the informant’s motive can be

spelled out by counsel (if it is not admitted on crossexamination) and considered under the general credibility instruction.”).

As noted above, we review the instruction to the jury

in its entirety. United States v. Renner, 238 F.3d 810, 812-13

(7th Cir. 2001). Although we conclude that the instruction

was not tailored properly to the facts of the case and

failed to identify specifically the witnesses to whom it

applied, the fact that the general credibility instruction

was given, combined with the absence of any peculiar

facts that would indicate the necessity of a special instruction, renders any error harmless.

Conclusion

For the foregoing reasons, the convictions of both defendants are affirmed.

AFFIRMED
22 Nos. 05-2596 & 05-2633

WILLIAMS, Circuit Judge, concurring. Like my colleagues, I think “it would be inappropriate to adopt a

categorical rule that would, in every case, uphold a finding of probable cause to search a particular location

simply because a suspected drug trafficker resides there.”

Op. at 16. I write separately, however, because I fear

the majority has come dangerously close to doing exactly

that.

Probable cause amounts to a showing “(1) that it is now

probable that (2) contraband, evidence of a crime, or a

fugitive will be on the described premises (3) when the

warrant is executed.” United States v. Grubbs, 126 S. Ct.

1494, 1500 (2006); see Illinois v. Gates, 462 U.S. 213, 238

(1983). The majority concludes that CI-1’s undated account of seeing Brown cook crack at the residence and law

enforcement’s observation of Poston, an alleged cocaine

trafficker, entering the home and leaving behind a backpack, establish a nexus between drug trafficking and the

premises, thereby sidestepping an ill-advised categorical

rule. I cannot be so sure.

In my view, that CI-1 witnessed Brown cook crack at the

residence at an unspecified time is of little probative value.

The warrant affidavit gives no indication whatsoever as

to when Brown was observed cooking crack. And, “[i]n

determining whether probable cause exists, magistrates

should consider, as one factor, the age of the information

in the supporting affidavit.” United States v. Lamon, 930

F.2d 1183, 1187-88 (7th Cir. 1991) (citing United States v.

Batchelder, 824 F.2d 563, 564 (7th Cir. 1987)). Because CI-1’s

single observation might have been several years old, it

could hardly predict whether contraband would be

found on the premises on the day of the search. Admittedly, as the majority notes, where an ongoing pattern of
Nos. 05-2596 & 05-2633 23

criminal activity is involved, staleness is less of a concern.

But, even where ongoing criminal activity is at issue, at

some point an event becomes too old to have meaningful

predictive value. Given the total lack of information

regarding the date of CI-1’s observation, we have no way

of discerning whether that threshold has been reached

here.

Nor does the additional fact that an alleged cocaine

trafficker set foot in the home and left behind a backpack

get the government over the probable cause hurdle. The

officers knew nothing of the backpack’s contents or even

whether it was purposefully left behind. And, given the

three-hour duration of Poston’s stay, it is as likely that

he entered the home for a social call as for a drug transaction. In this way, any suspicions regarding the purpose

of Poston’s visit were just that—suspicions—and where

probable cause is concerned, “mere suspicion is not

enough.” United States v. Ingrao, 897 F.2d 860, 862 (7th Cir.

1990). On this record, then, I do not think it can be said

that officers were likely to find evidence of drug dealing

at Brown’s home at the time of the search. (And, notably,

no cocaine, large sums of money, or drug-transaction

records were found during the search.)

In the end, the affidavit did little more than establish that

Brown resided at the home and had probably trafficked

in crack cocaine outside of his home. Because I am not

prepared to conclude that police officers always have

probable cause to search the residence of a suspected drug

trafficker, I would affirm Brown’s conviction not by

concluding that there was probable cause for the

search, but because the police acted in good faith.
24 Nos. 05-2596 & 05-2633

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-6-07