In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2574

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ULICE ASKEW,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 CR 37—Elaine E. Bucklo, Judge.

____________

ARGUED APRIL 6, 2004—DECIDED APRIL 5, 2005

____________

Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. Ulice Askew challenges the sufficiency of the evidence supporting his conviction under 21

U.S.C. § 846 for conspiracy to possess with intent to distribute PCP. He argues that the only credible evidence against

him established one PCP spot purchase amounting to a

buyer-seller relationship only, not a conspiracy. Relatedly,

Askew argues that the district judge committed plain error

by failing to supply the jury with a buyer-seller instruction.

He also asserts that the judge failed to answer appropriately the jury’s questions during deliberations about the

conspiracy count. His final ground for appeal alleges that
2 No. 03-2574

1 Askew testified that he declared bankruptcy in 1999 following

release from prison for a non-drug-related felony.

the judge committed plain error when she failed to suppress

evidence obtained through an unconstitutional stop that led

to his arrest. For the reasons discussed below, we affirm.

I. History

Christine Williams worked for Napoleon “Pokey” Moore

as a PCP distributor beginning in June 1999. Her relationship with Moore ended in December 2001, when she was

arrested and agreed to cooperate with the FBI.

According to Williams, Askew was one of the customers to

whom she regularly sold PCP. Williams testified that her

business relationship with Askew began in the summer of

2000, after Moore directed her to sell PCP to Askew to “help

him get back on his feet.”1

 Moore set the prices for the PCP

sold, often allowing Askew to pay a portion of the price,

with the remainder to be paid at the next buy. For a time,

Moore also charged Askew less for PCP than he charged

other customers. Williams believed Askew and Moore to be

“best friends.” 

Williams sold PCP to Askew almost weekly between the

summer of 2000 and her arrest in December 2001. Askew

would contact either Moore or Williams to let them know

when he needed the drugs. Williams testified that Askew

purchased a total of sixteen ounces (453 grams) to twenty

ounces (566 grams) of PCP each month and that she would

typically make deliveries to his home on South Millard

Avenue in Chicago. According to the expert witness presented by the government, sixteen ounces, or one pint, of

PCP amounted to 10,000 to 20,000 individual doses.

On January 4, 2002, after her arrest and while in FBI

custody, Williams received a call from Askew. He intro-
No. 03-2574 3

duced himself as “Pokey[’s] guy” from “off Millard.” When

she asked him what he was “tryin’ to do,” he responded, “[A]

whole one.” Williams then said, “The whole one? . . . [Y]ou

usually get the half. What you talkin’ about a whole one?”

Askew responded, “You know[,] the two fours,” which

Williams understood to mean eight ounces of PCP. In another call that same day, Askew told Williams that Moore

set the price of the purchase at a “stack,” or $1000.

At the FBI’s direction, Williams called Askew on January

9, 2002, and proposed that the buy take place at the Homan

Square Theater, located in a busy strip mall. Williams told

Askew that Moore said she could sell him a “pop” (sixteen

ounces of PCP) for $1300, which was a better price than

$1000 for an “eight” (eight ounces of PCP). Askew told

Williams that all he could come up with was $1100. As had

been done in the past, Williams proposed that he pay the

$1100 up front and supply the remaining $200 later. The

two agreed to meet at 11:00 A.M. that same day. Askew

informed Williams that she could find him in a white

Cadillac.

At 11:05 A.M., Williams called Askew to check on his status. Askew stated that he had already been to the meeting

place and had just left. Williams, who was actually in the

Dirksen Federal Building with her FBI handlers in downtown Chicago, represented that she was just arriving in her

car and asked him to turn around and meet her, which she

said should take “two or three minutes.” Askew agreed and

again indicated he could be recognized by the white Cadillac. Shortly thereafter, Williams again called Askew to tell

him she had arrived and to determine his whereabouts.

Askew stated that he was in the parking lot and described

his location—“by that little red truck. Where that lady

walkin [sic].” When Williams protested that she could not

see him, he told her he was pulling out and was “in front of

the theater now” but in “another car.” The call then cut off.
4 No. 03-2574

All of these calls, beginning with the January 4, 2002,

contact and others, were recorded and played for the jury at

trial. 

Unbeknownst to Askew, FBI agents and Chicago police

were positioned outside of the Homan Square Theater in

unmarked cars. The agents sitting with Williams four miles

away relayed, by radio, the content of her conversations

with Askew to the law enforcement officers attempting to

perform the arrest. The officers correctly identified a silver

Hyundai Accent as the car carrying Askew based on the

information provided by Williams through her handlers and

also due to the car’s suspicious maneuvers—it was circling

the lot as if its passengers were looking for someone. The

agents blocked the vehicle with theirs and, with guns

drawn, removed the occupants. Once Askew identified himself, they placed him under arrest and conducted a safety

search. The agents found $1189 in cash. 

While in custody, Askew signed a confession stating that

in October 2001 he purchased one ounce (28 grams) of PCP

from Williams for $200 and resold it for $300. He also admitted to his unsuccessful attempts to purchase more PCP

from Williams in November 2001 and to his intent to buy

sixteen ounces of PCP from Williams the day of his arrest.

At trial, the government’s evidence consisted primarily of

Williams’s testimony, Askew’s confession, a pen register

showing that Askew called Williams eighteen times between

September 2001 and December 2001, and the recorded phone

calls between Williams and Askew. Askew testified in his

own defense and stated that he never, at any time, purchased or intended to purchase PCP from Williams. Rather,

he claimed that he planned to buy stereo speakers (his

brother had previously testified the speakers were called

“pops”) from Williams the day of his arrest, which were to

be used to help promote his brother’s rap CD. He told the

jury that he met Williams through Moore, but that Moore

was a casual acquaintance that he had spoken to only three

times—once around 1989 at an album release party,
No. 03-2574 5

another time when he ran into him at a mall about twelve

years later in 2001, and again sometime in late 2001. During

the mall conversation, according to Askew, Moore put him

in touch with Williams because her nephew was interested

in the rap music industry. During the third conversation,

Askew said he and Moore discussed the speakers Askew

wanted to buy and that they worked out a package deal for

the purchase. Askew testified that he had only spoken to

Williams about five times in his life, and that she had never

been to his house. He also disavowed his written confession,

contending that he never even read it—he signed it only

because he was scared and was told that the confession

merely indicated his willingness to cooperate with the FBI.

The jury returned a verdict of guilty on all three counts

charged. The verdict form for Count I (the conspiracy count

and the only count at issue here) asked the jury to determine the amount of PCP attributable to Askew: one kilogram or more; 100 grams but less than one kilogram; or less

than 100 grams. The jury chose the third option—less than

100 grams. 

At sentencing, the district judge determined that 8,000 to

10,000 grams (eight to ten kilograms) of PCP was attributable to Askew on Count I. The judge also determined that

Askew lied at trial about his involvement with the PCP conspiracy and gave him a two-level enhancement for obstruction of justice. The district court sentenced him to 210 months’

imprisonment on the conspiracy count, to be served concurrently with the sentences rendered on the other two

counts of the indictment. 

II. Analysis

A. Sufficiency of the Evidence

Askew challenges the sufficiency of the evidence supporting his conviction on the indictment’s conspiracy count. His

sole argument relies on the jury’s decision, in rendering its
6 No. 03-2574

verdict, to attribute less than 100 grams of PCP to him. He

reasons that the jury, who heard Williams testify to selling

thousands of grams to Askew over a year-and-a-half period,

must have completely discounted her witness testimony and

accepted as true Askew’s confession that he purchased one

ounce (28 grams) of PCP. Otherwise, Askew argues, the jury

would have attributed far more PCP to Askew than it did.

Based on that premise, Askew asserts that we should follow

what he believes is the jury’s lead and review the record

sanitized of Williams’s testimony. The remaining evidence,

Askew posits, establishes not a conspiracy, but rather, at

most, a buyer-seller relationship premised on spot purchases. 

Because Askew’s sufficiency of the evidence appeal hinges

on our treatment of Williams’s trial testimony, we must

first determine whether, as Askew suggests, we should disregard it based on the jury’s verdict. Askew’s issue is somewhat unique: most defendants challenging their convictions

because of verdict inconsistencies do so because they were

acquitted on some counts that would seem to require acquittal on others of which they were found guilty, e.g.,

United States v. Conn, 297 F.3d 548, 557 (7th Cir. 2002)

(defendant acquitted on five counts of willfully dealing firearms without a license but convicted on sixth), or because

they were convicted when co-defendants were acquitted

under the same evidence, e.g., United States v. Patterson,

348 F.3d 218, 224 (7th Cir. 2003) (defendant convicted on

conspiracy charge and alleged sole co-conspirator acquitted

on same charge). Askew’s verdict was not inconsistent

across counts (the jury found him guilty of all three) or as

to co-defendants (there were none). Instead, he argues that

the jury’s verdict on Count I was internally inconsistent—

that he could not have engaged in a conspiracy to distribute

PCP, as the jury found, if the amount of PCP attributed to

him was less than 100 grams, which the jury also found.
No. 03-2574 7

Regardless of how the apparent inconsistency in a jury’s

determination presents itself, it is well established that

“[i]nconsistent verdicts in a criminal case are not a basis for

reversal of a conviction or the granting of a new trial.”

United States v. Reyes, 270 F.3d 1158, 1168 (7th Cir. 2001)

(collecting authority). This is because the Supreme Court

has recognized that inconsistent jury verdicts may occur for

various reasons, including mistake, compromise, or lenity.

See United States v. Powell, 469 U.S. 57, 65 (1984). Here, we

do not know why the jury decided to attribute less than 100

grams of PCP to Askew, and neither does Askew. Any

attempt to discern the jury’s rationale for the verdict “would

be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally

will not undertake.” Id. at 66; see also Gacy v. Welborn, 994

F.2d 305, 313 (7th Cir. 1993) (“One enduring element of the

jury system, no less vital today than two centuries ago, is

insulation from questions about how juries actually decide.”). Because we assume that juries follow the law as

charged, because of our deep deference to the jury’s collective judgment, and because Askew is provided protection

from jury irrationality or error through an insufficiency

of evidence challenge, see Powell, 469 U.S. at 67-68, we decline to resort to conjecture and assume, as Askew does,

that the jury found Williams’s testimony incredible. We are

bound to include her testimony in our review of the evidence presented against Askew at trial, to which we now

turn.

When evaluating a sufficiency of the evidence challenge,

we view all the evidence and draw all reasonable inferences

in the light most favorable to the prosecution—a rigorous

standard. See United States v. Hicks, 368 F.3d 801, 804-05

(7th Cir. 2004). We will affirm the verdict if “any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. (quotation omitted).
8 No. 03-2574

Conspicuously, Askew does not make the alternative

argument that even considering Williams’s testimony, the

jury did not have sufficient evidence to convict on the conspiracy count. Because Askew does not challenge his conviction based on the record as a whole, but rather relies on

a trial transcript figuratively excised of Williams’s testimony,

we could end our discussion of the sufficiency issue here.

Yet, in the interest of completeness, we note that our review

of the record, including Williams’s testimony, satisfies us

that the government presented the jury with sufficient

evidence to establish Askew engaged in a conspiracy with

Williams and Moore, not a mere buyer-seller relationship.

For Askew’s conspiracy conviction to stand, the government needed to convince the jury that “(1) two or more

people agreed to commit an unlawful act and (2) the

defendant knowingly and intentionally joined in the agreement.” United States v. Gardner, 238 F.3d 878, 879 (7th Cir.

2001). Proof of a drug distribution conspiracy, as opposed to

a simple buyer-seller relationship, includes evidence of a

prolonged and actively pursued course of sales, coupled with

the defendant’s knowledge of and shared stake in the illegal

venture. United States v. Contreras, 249 F.3d 595, 599 (7th

Cir. 2001). A list of non-dispositive factors considered when

assessing whether the alleged co-conspirators’ association

ripened into a conspiracy includes “whether there was prolonged cooperation between the parties, a level of mutual

trust, standardized dealings, sales on credit (‘fronting’), and

the quantity of drugs involved.” Hicks, 368 F.3d at 805.

Here, Williams testified that she sold Askew PCP on

Moore’s behalf almost weekly for a year and a half, resulting

in the exchange of thousands of grams of drugs. The transactions were regulated by Moore, sometimes at below-average prices or volume discounts, and sometimes paid in part

by Askew, with the rest owing at the next purchase. From

this and other evidence—including the phone recordings

reflecting Askew’s familiar relationship with Williams and
No. 03-2574 9

Moore, the pen register revealing his eighteen calls to

Williams in a two-month period, Askew’s close friendship

with Moore that prompted him to help Askew “get back on

his feet” after his financial woes, and Askew’s signed confession admitting to at least one consummated PCP deal—

a rational trier of fact could find that Askew and Williams

engaged in more than a buyer-seller relationship. Indeed,

a jury could conclude beyond a reasonable doubt that an

agreement to distribute PCP existed among Moore, Williams,

and Askew and that Askew willingly and intentionally

joined in the agreement.

B. Buyer-Seller Instruction

In line with his theory that the evidence established, at

most, a buyer-seller relationship, Askew challenges the

district judge’s failure sua sponte to supply the jury with an

instruction (a “buyer-seller instruction”) explaining that

repeated drug buys alone do not establish a conspiracy. Because Askew at no time requested a buyer-seller instruction

or objected to its omission, we review the judge’s failure to

include such an instruction for plain error. United States v.

Gee, 226 F.3d 885, 894 (7th Cir. 2000). To reverse a conviction under the plain error standard, we must find that

(1) an error occurred; (2) it was “plain,” meaning obvious or

clear; (3) it affected Askew’s substantial rights; and (4) it

seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Gibson,

356 F.3d 761, 765-66 (7th Cir. 2004); Gee, 226 F.3d at 894-

95. In other words, “[p]lain error must be of such a great

magnitude that it probably changed the outcome of the

trial.” United States v. Douglas, 818 F.2d 1317, 1320 (7th

Cir. 1987). 

Our finding above that the jury had sufficient evidence to

convict Askew on the conspiracy count does not automa-
10 No. 03-2574

tically negate his claim that the judge committed plain error

in failing to provide the jury with a buyer-seller instruction.

See, e.g., Gee, 226 F.3d at 894-96 (finding that the jury had

sufficient evidence to convict on the conspiracy charge, but

reversing for failure to give a buyer-seller instruction);

United States v. Mims, 92 F.3d 461, 466 (7th Cir. 1996) (finding ample evidence to support the conspiracy conviction, but

reversing because the judge gave a flawed buyer-seller

instruction). This is because the line between a buyer-seller

relationship and a drug conspiracy can be a blurry one. In

the former, the government seeks to punish the sale of the

drugs alone; in the latter, it seeks to punish criminal objectives beyond the sale itself—most typically, the parties’

agreement subsequently to distribute the drugs exchanged.

See United States v. Thomas, 284 F.3d 746, 751-52 (7th Cir.

2002). Evidence of repeated sales can be used to establish

both offenses, although in the case of a drug conspiracy, evidence of repeated sales alone is not enough to support a

conviction. Rather, as already outlined above, in conspiracy

cases the jury must assess a host of factors—including

repeated sales—to determine whether an agreement beyond

the simple purchase of drugs exists. Hence, we have found

that “because the line between a conspiracy and a mere

buyer-seller relationship is difficult to discern, district judges

should instruct juries in appropriate situations on the distinction” and “inform juries that repeated transactions do

not constitute a conspiracy.” Gee, 226 F.3d at 895; see also

United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998)

(“[T]he jury should be told that agreement—the crime of

conspiracy—cannot be equated with repeated transactions.

This is the office of the buyer-seller instruction. It reminds

juries that distribution of drugs is not itself conspiracy,

although a history of transactions may be evidence of conspiracy.”) (emphasis in original).

Askew argues that the district court committed plain

error in failing to realize that the evidence in this case ne-
No. 03-2574 11

cessitated a buyer-seller instruction to ensure that the jury

understood it could not convict on the conspiracy count

solely on the basis of repeated drug buys. In evaluating his

claim, we note that “[e]ach drug conspiracy case must be

analyzed according to its specific facts to determine whether

a buyer-seller instruction is appropriate.” Douglas, 818 F.2d

at 1321. “A defendant is entitled to a buyer-seller instruction only if the instruction has some foundation in the

evidence.” Id. In assessing the appropriateness of giving the

instruction, we also consider whether Askew put forth a

buyer-seller defense at trial. Id.; see also United States v.

Baker, 40 F.3d 154, 162 (7th Cir. 1994).

We first examine the evidence Askew offered at trial. It is

undisputed that Askew did not advance a buyer-seller

defense during trial. Instead, Askew’s strategy was to deny

any involvement whatsoever with illegal drugs. When he

testified in his own defense, he claimed to have been introduced to Williams by Moore, whom he barely knew, because

Williams’s nephew was interested in the rap music industry.

He swore he never purchased or intended to purchase PCP

from Williams, despite strong evidence suggesting otherwise, including: his signed confession admitting actual and

intended purchases, the recorded phone conversations with

Williams in which he made obvious attempts to purchase

something (he says stereo speakers, she says PCP), and his

arrest at the Homan Square rendezvous point carrying

nearly $1200 in cash—enough to purchase the sixteen ounces

of PCP offered by Williams for $1100 down with $200 owing.

Because Askew did not advance a buyer-seller theory of

defense, his case is distinguishable from Mims and Thomas,

two cases in which we reversed convictions based on missing or erroneous buyer-seller instructions. In both Mims

and Thomas, the defendants’ theories at trial were that

they were drug dealers/buyers, not drug conspirators. See

Mims, 92 F.3d at 463; Thomas, 150 F.3d at 744. They admitted their involvement in drug transactions, unlike Askew,
12 No. 03-2574

and they requested buyer-seller instructions, unlike Askew.

See Mims, 92 F.3d at 463-64; Thomas, 150 F.3d at 744. We

reversed when the district court gave a fatally flawed buyerseller instruction that was different than the one requested

by the defendant, Mims, 92 F.3d at 465-66, and when the

district court refused to give the instruction at all, Thomas,

150 F.3d at 745-46. We also note that in both cases, the evidence against the defendants was weaker than that produced by the government here.

Although Askew’s choice not to adopt a buyer-seller defense cuts in favor of finding no error in the district judge’s

decision not to give the instruction, we must still review the

evidence presented by the government to determine

whether it was such that a jury could confuse a buyer-seller

relationship with a conspiratorial one. For example, in Gee,

we determined that the district court committed plain error

when it failed to give the buyer-seller instruction sua sponte

because the court had explicitly recognized that the conspiracy evidence against the defendants was weak. 226 F.3d at

895. There, the district court refused to admit the government’s proffered co-conspirator statements under Federal

Rule of Evidence 801(d)(2)(E), finding that the government

had not shown by a preponderance of the evidence that a

conspiracy existed between the defendants. Id. at 895 n.8.

Because of this, we reasoned, “[t]he district judge’s reservation about the proof of a conspiracy should have alerted him

to be certain that the jury correctly evaluated the evidence

before determining whether a conspiracy existed.” Id. at

895. 

No similar reservations were expressed by the district

judge here, and rightly so, in light of the evidence presented

at trial. As already noted, Williams testified to almost weekly

sales of large quantities of PCP over a year-and-a-half

period, during which time she, at Moore’s behest, regularly

“fronted” Askew portions of the purchase. Moore agreed to

let Williams sell him large quantities of PCP at wholesale
No. 03-2574 13

prices so that Askew “could get back on his feet.” The logical

inference to be drawn from this evidence was that all three

agreed that Askew would purchase drugs from Moore through

Williams so that Askew could redistribute it at a profit.

This enabled Askew to pay off the amounts fronted to him

and “get back on his feet”; the arrangement also provided a

steady demand for Moore’s product. Such facts indicate a

conspiracy, not a simple buyer-seller relationship. The

strength of the government’s case, combined with Askew’s

choice not to present or argue any evidence tending to show

he was involved in a buyer-seller relationship only, leads us

to conclude that there was no clear error in not sua sponte

giving a buyer-seller instruction. See Baker, 40 F.3d at 162

(finding no error in refusing to give a theory of defense

instruction where nothing in evidence supported the

defense);United States v. Fort, 998 F.2d 542, 547 (7th Cir.

1993) (finding no error in not giving a buyer-seller instruction when the defendant chose to portray himself as a

mere bystander rather than a drug buyer because such an

instruction would have been inconsistent with his defense).

Moreover, considering the relative strength of the evidence

against Askew, we do not believe giving the instruction

would have changed the outcome of the trial, as required

under plain error review. The absence of that instruction,

therefore, did not affect Askew’s substantial rights and does

not warrant reversal.

C. Judge’s Response to Jury Questions

Askew also argues that the court, in response to written

questions forwarded by the jury during deliberations, failed

properly to supplement the jury instructions and make it

clear that events taking place after Williams agreed to cooperate with the government could not be considered part
14 No. 03-2574

2 Although a conspiracy terminates when one member agrees to

cooperate with the government, Thomas, 284 F.3d at 754 (noting

that if a party’s goal is “not to commit a crime but to expose one,

there [can] be no genuine agreement” supporting a conspiracy conviction), “one might still look to later events for clues about what

the nature of the relationship between [the alleged co-conspirators] was prior to that date.” Id. at 755. Thus, the jury was

entitled to consider the phone calls between Askew and Williams

setting up the January 9, 2002, buy and the events surrounding

Askew’s arrest to clarify Askew and Williams’s relationship prior

to those events. The jury was not permitted, though, to use those

events to establish the elements of the conspiracy charge.

of the conspiracy agreement.2 But Askew has waived any

such objections because he explicitly agreed to the proposed

response to the jury’s first set of questions and, as to the

final questions posed by the jury, he actually suggested the

response provided by the court. See United States v. Lakich,

23 F.3d 1203, 1208 (7th Cir. 1994) (finding defendant waived

any argument that the court’s supplemental instruction was

erroneous because his attorney specifically stated that he

agreed to the instruction); see also United States v.

Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004) (“Waiver is the

intentional relinquishment or abandonment of a known

right, representing the manifestation of an intentional

choice[.]”) (internal quotations and citations omitted). 

As reflected by the trial transcript, the jury first asked

the following questions, among others: 

[I]n considering the quantity of drugs involved in an

alleged conspiracy, are we to consider evidence of transactions prior to the Jan. 9 arrest of Askew?

***

The jury wants to know if it should consider evidence

up to and including the events of Jan. 9 in reaching a
No. 03-2574 15

conclusion about the count one conspiracy, or does count

one only deal with evidence prior to those events?

The judge consulted with the attorneys about the appropriate response. During that conference, Askew’s attorney

stressed, “[M]y position is you should simply say to read the

indictment and the instructions. I think you are getting into

a place where you are telling them what to do other than

just read the instructions and read the indictment, and I

think that’s the Court putting itself in the process.” (Tr. at

361.) After further discussion, the judge stated: “I suppose

one other thing we can say is[,] ‘As to your other questions,

you may consider whatever evidence you think is appropriate.’ ” (Tr. at 361.) The government agreed. Askew’s attorney

stated, “All right,” to which the judge responded, “That

would be alright?” Askew’s attorney answered, “Yes.” (Tr. at

362.) The judge then wrote the jury with the following

response: “Thank you for your notes. . . . With regard to

your remaining questions, you may consider whatever

evidence you think is appropriate.”

The final questions asked by the jury were as follows:

Does count one conspiracy charge apply only to the

period of “beginning in or about 2000 and continuing on

or about Dec. 16, 2000” as outlined in the indictment? 

In deciding whether the defendant is guilty of count 1,

should the jury consider the events and evidence after

Dec. 16—or should the jury consider events and evidence only up to Dec. 16 and not beyond? [emphasis in

original]

Askew’s attorney suggested the following response: “Just

reread the conspiracy instruction. You should tell them that.”

The judge responded, “Okay,” (Tr. at 370), and delivered the

following message to the jury: “In response to your question,

please reread the conspiracy instruction in your jury

instructions.” 
16 No. 03-2574

3 We also note that at no time did Askew make the argument he

makes here, that the conspiracy instruction as originally given by

the court was inadequate, lacking clarification as to Williams’s

status as a government informant after her arrest and to its significance in terms of the conspiracy charge. By taking the position,

in response to the jury’s questions, that the judge should direct

the jury to the conspiracy instruction already provided and by

requesting no clarifying language, Askew implicitly accepted the

conspiracy instruction as a complete and accurate statement

of the law. Thus, not only has he waived the argument that the

district judge failed to provide appropriate supplemental instruction to the jury, he has effectively waived the related argument

that the conspiracy instruction with which the jury was initially

charged was flawed in such a way as to warrant a new trial.

Considering his conduct during the conferences with the

judge discussing the appropriate response to the jury’s questions, Askew has no basis for appeal now.3

D. Evidence Suppression

Askew argues that the $1189 seized after he was stopped

and searched by the FBI outside the Homan Street Theater

and the confession procured after his arrest should have

been suppressed because the initial stop was a seizure that

violated the Fourth Amendment. He states that the stop, in

which FBI agents blocked his vehicle with theirs and

ordered him out of the car with weapons drawn, constituted

a full arrest unsupported by probable cause. In the alternative, he argues that if the actions of the FBI can be characterized as a Terry investigative stop, see Terry v. Ohio, 392

U.S. 1, 21 (1968), the FBI did not have reasonable suspicion

to perform the stop. We note at the outset that Askew failed

to challenge the FBI’s actions and the evidence discovered

before the district judge. Thus, we review the district court’s

admission of the evidence for plain error only. United States v.

Kincaid, 212 F.3d 1025, 1030 (7th Cir. 2000). Again, “[p]lain
No. 03-2574 17

error review allows us to correct only particularly egregious

errors for purposes of preventing a miscarriage of justice.”

Id. (quotations omitted).

Under our Fourth Amendment jurisprudence, citizens can

be subjected to a full custodial arrest only if the arresting

officer has probable cause to detain them. “Probable cause

to arrest exists when a reasonably cautious and prudent

person would be justified in believing that the individual to

be arrested had committed, was committing or was about to

commit a crime.” United States v. Tilmon, 19 F.3d 1221,

1228 (7th Cir. 1994) (citing Wong Sun v. United States, 371

U.S. 471, 479 (1963)).

In addition, precedent teaches that law enforcement

officers may engage in brief investigative stops that need

not be supported by probable cause, but instead by reasonable suspicion that the target has committed, is committing,

or is about to commit a crime. See Terry, 392 U.S. at 26;

United States v. Scheets, 188 F.3d 829, 837 (7th Cir. 1999)

(“Since the Supreme Court’s decision in Terry, it has been

established that a law enforcement officer may conduct a

brief, non-intrusive detention of a person if the officer has

specific and articulable facts sufficient to give rise to a

reasonable suspicion that the person had committed or is

committing a crime.”) (citations omitted).

The line between a lawful Terry stop and an unlawful

arrest is not bright, United States v. Vega, 72 F.3d 507, 515

(7th Cir. 1995) (citing United States v. Smith, 3 F.3d 1088,

1095 (7th Cir. 1993)), especially since we have “witnessed

a multifaceted expansion of Terry. . . . For better or for worse,

the trend has led to the permitting of the use of handcuffs,

the placing of suspects in police cruisers, the drawing of

weapons and other measures of force more traditionally

associated with arrest than with investigatory detention.”

Tilmon, 19 F.3d at 1224-25 (internal quotations and citation

omitted).
18 No. 03-2574

Based on the facts presented here, we find that the FBI

executed a constitutional Terry stop—not an arrest—in the

Homan Square Theater parking lot, even though the agents

blockaded Askew’s car and approached with guns drawn.

The agents’ show of force corresponded to their reasonable

suspicion that one of the people in the silver Hyundai was

Askew, who was preparing to commit a drug-related crime.

As we explain below, the inherent danger in stopping those

suspected of drug trafficking, for which guns are known tools

of the trade, in a public place where civilian lives might be

at risk, warranted the level of intrusion in this instance.

1. Reasonable suspicion

A finding of reasonable suspicion supporting a Terry stop

must be based on the totality of the circumstances presented

to the officer at the time of the detention. Scheets, 188 F.3d

at 837. “[T]he ‘totality of the circumstances’ encompasses

both ‘the experience of the law enforcement agent and the

behavior and characteristics of the suspect.’ ” Id. (quoting

United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995)).

Askew argues that his behavior the day of the stop could

not reasonably have alerted the officers that he, out of all

the people in the strip mall parking lot, was the individual

about to purchase PCP from Williams. He characterizes his

behavior as described by the FBI—riding in a car slowly

circling the lot—as innocently looking for a parking space,

like the many other patrons of Homan Square. He also

points out that although he told Williams he would be

arriving in a white Cadillac, he switched cars and was a

passenger in a car of a completely different make, model,

and color. 

Yet Agent Benvenuto, the FBI agent in charge of the stop,

testified that he received information from Williams, a

cooperating witness, that Askew was to arrive at the

theater at 11:00 A.M. for the purpose of making a PCP buy.
No. 03-2574 19

While waiting for Askew to arrive, Agent Benvenuto was in

contact with Williams’s case agents, who were updating him

as to Askew’s whereabouts based on Williams’s contemporaneous phone conversations with Askew. From these communications, Agent Benvenuto knew when Askew’s arrival was

imminent and that he was in a car, although not the white

Cadillac that Askew originally claimed he would be driving.

Agent Benvenuto, who was assigned to investigate drug

trafficking organizations, explained his decision to stop the

Hyundai Accent: “It has been [my] experience that when

you arrange a buy-bust for a certain location and then a car

arrives at that location driving in what I would describe as

a suspicious manner, clearly looking for someone in that

parking lot, it’s been my experience that that is the individual.” (Tr. at 114.)

The totality of the circumstances here firmly establishes

reasonable suspicion, if not probable cause, for the stop.

Although circling a parking lot looking for someone is most

certainly an innocent act, we have acknowledged that “a

pattern of behavior interpreted by the untrained observer

as innocent may justify a valid investigatory stop when

viewed collectively by experienced drug enforcement agents

like [Agent Benvenuto].” United States v. Lechuga, 925 F.2d

1035, 1039 (7th Cir. 1991) (quotation and citations omitted).

This is especially true, where, as here, the FBI were alerted

to Askew’s intent to commit a crime at the Homan Street

Theater by a trusted informant, Williams. Id. (“Taken together, the facts observed by [the officer], especially when

viewed in light of the prior tip he had received from a trusted

informant, amply suffice to establish reasonable suspicion

for the stop of [the defendant’s] car.”).

2. Degree of intrusion

Having decided that the initial stop was justified under

Terry, we must examine whether the manner in which it
20 No. 03-2574

was executed—car blocked, guns drawn—was “reasonably

related in scope to the circumstances which justified the interference in the first place.” Vega, 72 F.3d at 515 (quotation omitted). “We . . . have recognized that, because investigative detentions often pose a great risk of harm to the

police, the ‘mere use or display of force in making a stop

does not necessarily transform a stop into an arrest if the

surrounding circumstances give rise to a justifiable fear for

personal safety.’ ” United States v. Brown, 366 F.3d 456, 461

(7th Cir. 2004) (quoting Tilmon, 19 F.3d at 1226). 

Drug arrests can warrant intrusive tactics because of their

inherent danger. “Guns are among the tools of the drug

trade[,]” United States v. Rhodes, 229 F.3d 659, 661 (7th Cir.

2000), and, thus, “[a]llowing police to draw their weapons

may be reasonable if the suspect . . . is thought to be involved in criminal activity in which the use of weapons is

commonplace,” Tilmon, 19 F.3d at 1227 (quotation omitted).

Here, the FBI and the police assisting on the arrest believed

Askew to be part of a large PCP distribution ring. The arrest took place late morning in a busy strip-mall parking

lot. Any attempt Askew might make to flee in the car or to

use weapons to aid in escape had the potential to harm large

numbers of innocent bystanders or the law enforcement

officers attempting to execute the arrest. Therefore, the FBI

acted reasonably in neutralizing Askew by surrounding his

car and approaching with weapons drawn. See, e.g., Vega,

72 F.3d at 515 (“The agents who stopped and questioned

[the defendant] believed that he was involved in a massive

cocaine importation conspiracy. They had every reason to

believe that he was dangerous. Certainly it was reasonable

for the agents to have their weapons drawn upon their initial contact.”); Lechuga, 925 F.2d at 1040 (noting the expansion of Terry to include circumstances where weapons

are drawn and vehicles are blocked in order to effectuate

the stop) (collecting authority).
No. 03-2574 21

We find the Terry stop lawful based on the particular

circumstances of this case and, therefore, the judge did not

commit any error, plain or otherwise, in allowing evidence

collected as a result of the stop to be presented to the jury.

E. Askew’s Sentence

One final matter we must address is the effect of the recent Court decision in United States v. Booker, 125 S. Ct. 738

(2005), on Askew’s sentence. In Booker, the Court reaffirmed

the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000),

and extended its principles to the federal Sentencing

Guidelines, holding that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”

Booker, 125 S. Ct. at 756. In its remedial holding, the Court

excised the mandatory provisions of the Guidelines. See id.

at 757. As a result, district courts now have the discretion

to sentence outside the ranges set in the Guidelines, and we

review these sentences for reasonableness. See id. at 765-

66.

Askew failed to raise in the district court an Apprendibased objection to his sentence, but following argument, we

granted Askew leave to file a supplemental brief raising

such a challenge in light of Blakely v. Washington, 124

S. Ct. 2531 (2004), and United States v. Booker, 375 F.3d

508 (7th Cir. 2004). Accordingly, we review for plain error.

As discussed earlier, “[u]nder [the plain error] test, 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) (citation and internal quotation marks

omitted). “If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error,
22 No. 03-2574

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

integrity, or public reputation of judicial proceedings.” Id.

The record discloses that Askew received a sentence mandated by the Guidelines and increased on the basis of facts

found by the judge, not the jury—in other words, Askew’s

sentence was imposed under a sentencing scheme that we

now know is unconstitutional. Askew’s sentence, therefore,

was imposed in error, and the error is plain. See United States

v. Paladino, No. 03-2296, 2005 WL 435430, at *7 (7th Cir.

Feb. 25, 2005). We cannot determine, however, whether

Askew would have received the same sentence had the

district court been free to exercise the broad sentencing discretion now afforded in the wake of Booker. In short, we are

unable to resolve whether Askew’s substantial rights were

affected when he received a sentence imposed under the

mandatory Guidelines regime.

As we concluded in Paladino, the “only practical way . . .

to determine whether the kind of plain error argued in

these cases has actually occurred is to ask the district

judge.” Paladino, 2005 WL 435430, at *10. To that end, we

“order a limited remand to permit the sentencing judge to

determine whether he would . . . reimpose his original sentence.” Id. If the district court determines that Askew would

have received the same sentence, we will conclude that

Askew was not prejudiced, and his plain error challenge

must fail. We will then affirm the original sentence, provided it is reasonable. See id. (citing Booker, 125 S. Ct. at

765).

On the other hand, if the district court decides that a different sentence would have been appropriate pursuant to its

exercise of greater discretion, “we will vacate the original

sentence and remand for resentencing.” Paladino, 2005 WL

435430, at *10. Regardless of whether the district court

decides to resentence Askew, the court should abide by the

process we set forth in Paladino to provide an appropriate

explanation for its decision. See id.
No. 03-2574 23

III. Conclusion

Because we find no merit in any of the arguments Askew

raises on appeal, his conviction is AFFIRMED. As to Askew’s

sentence, however, we order a limited remand of this case

in accordance with the remedial procedure adopted by this

circuit in Paladino. The district court is directed to return

this case to us at the completion of its sentencing determination, pursuant to the procedure set forth in Paladino.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-5-05