In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1307

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEMARCO IRBY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 06-10095—Michael M. Mihm, Judge.

ARGUED DECEMBER 3, 2008—DECIDED MARCH 11, 2009

Before EASTERBROOK, Chief Judge, and MANION and

WOOD, Circuit Judges.

MANION, Circuit Judge. DeMarco Irby was indicted

for possessing with intent to distribute more than five

grams of crack in violation of 21 U.S.C. § 841(a)(1). After

a two-day trial, a jury found Irby guilty of that offense.

Irby appeals his conviction, challenging the sufficiency

of the evidence and the admission of several out-of-court

statements made by a confidential informant (“CI”).

We affirm.
2 No. 08-1307

Just prior to this testimony, defense counsel objected to the 1

government’s leading of the witness. The government then

gave Batterham an open-ended invitation to describe the

circumstances surrounding his surveillance of 805 East Republic. In his first sentence in response, Batterham testified that a

CI had informed him that a person named DeMarco was

selling cocaine from that address.

The CI was not called to testify at trial. 2

I.

In its opening statement, the government told the

jury that the evidence would show that an officer of the

Peoria, Illinois Police Department “received evidence” that

Irby was trafficking drugs from 805 East Republic Avenue. The government then called Officer Chad Batterham

to testify in its case in chief. Batterham stated that

he received information from a CI that a person

named DeMarco was selling cocaine from the house at

805 East Republic. The CI then made a controlled buy 1

of a rock of crack cocaine from someone at that residence;

Batterham said that the CI identified the seller as

“DeMarco.” Batterham also testified that the CI later

identified the defendant from a photo lineup as the

person from whom he had bought the crack. Irby did not

object to Batterham’s recounting of any of the CI’s out-of- 2

court statements.

Officer Batterham then testified that he surveilled the

805 East Republic residence and observed the defendant

emerge from the house, feed a dog, and reenter the

house. After obtaining a search warrant for Irby and the
No. 08-1307 3

house, Batterham returned to his surveillance post and

watched Irby leave the front porch and go inside the

house. A few minutes later, a car driven by Natale

Saraceno parked in front of the residence. Batterham

stated that he saw Irby emerge from the house, walk to the

passenger’s side of the car, and lean in the window. A

raid team swarmed the area and took Irby into custody

near the car. One of the arresting officers testified that

he saw Irby take a bag of marijuana out of his pocket and

drop it on the ground just before he was arrested. The

quantity of marijuana in the bag was worth about ten

dollars. A ten-dollar bill was found between the passenger’s seat and door of the car.

During the execution of the search warrant for the

residence, police officers discovered three surveillance

cameras around the front entrance of the house; two

monitors with live feeds from these cameras were

located in the master bedroom. A scanner set to the

Peoria Police Department’s frequency was found in the

same room. The police found a metal pan of loose marijuana on the bed in the master bedroom, along with

several sandwich bags containing marijuana. A plastic

grocery bag on the bed contained three digital scales,

several bags of marijuana, and another bag holding a

couple of bags of marijuana and fifty-nine baggies of

crack. The total weight of the crack was 16.9 grams. A

drug-trafficking expert testified that the quantity and

packaging of the crack was consistent with an intent to

distribute. Police found another digital scale near the

head of the bed. Irby’s state identification card was

found on a dresser in the master bedroom and his social
4 No. 08-1307

security card was found in a locked box in the bedroom’s

closet. On a shelf in the same room, police discovered

several articles of mail addressed to Irby at 805 East

Republic.

Irby did not move for a judgment of acquittal under

Federal Rule of Criminal Procedure 29(a) when the government rested its case or at the close of all of the evidence. The jury returned a verdict of guilty, specifically

finding that Irby possessed with intent to distribute

16.9 grams of crack. Irby did not move for a judgment of

acquittal under Rule 29(c) after the verdict was returned. The district court sentenced him to 132 months’

imprisonment. Irby appeals his conviction.

II.

A. Sufficiency of the Evidence

Irby argues that the evidence presented at trial was

insufficient to sustain his conviction on the charged

offense. When presented with a challenge to the sufficiency of the evidence, we typically “will reverse a

conviction only when no rational trier of fact, viewing the

evidence in the light most favorable to the prosecution,

could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Knox, 540

F.3d 708, 719 (7th Cir. 2008). While this standard is “highly

deferential” and “nearly insurmountable,” id., where, as

here, the defendant did not move for a judgment of

acquittal in the district court, the even more stringent

plain-error standard applies, United States v. Beaver, 515
No. 08-1307 5

F.3d 730, 741 (7th Cir. 2008). In order to prevail, the

defendant must demonstrate that a manifest miscarriage

of justice will occur if his conviction is not reversed. Id.

Put another way, “ ‘reversal is warranted only if the

record is devoid of evidence pointing to guilt, or if the

evidence on a key element was so tenuous that a conviction would be shocking.’ ” United States v. Van Allen, 524

F.3d 814, 819 (7th Cir. 2008) (quoting Beaver, 515

F.3d at 741-42).

In order to convict Irby under 21 U.S.C. § 841(a)(1), the

government was required to prove that he (1) knowingly

or intentionally possessed crack cocaine (2) with the

intent to distribute it (3) while knowing it was a controlled substance. United States v. Campbell, 534 F.3d

599, 605 (7th Cir. 2008). The government can prove the

first element by demonstrating that the possession was

either actual or constructive. Id. The defendant is correct

when he says that he was never found in actual possession

of the crack. That leaves constructive possession, in

which case the government must prove Irby had ownership, dominion, or control over the crack, thus establishing a nexus between him and the drugs. United States

v. Parra, 402 F.3d 752, 761-62 (7th Cir. 2005). “Mere proximity to the drug, mere presence on the property where it

is located, or mere association, without more, with the

person who does control the drug or property on which

it is found, is insufficient to support a finding of possession.” United States v. DiNovo, 523 F.2d 197, 201 (7th

Cir. 1975) (internal quotation marks and citation omitted).

Before the raid, Batterham observed the defendant exit

and reenter the house after feeding a dog, which sug-
6 No. 08-1307

Irby asserts that the unrebutted testimony of Tameka Edwards 3

and Jonathan Thomas that the marijuana and crack were theirs

(respectively) casts doubt on his possession of the crack. The

jury heard this testimony and obviously rejected it; on a

sufficiency-of-the-evidence challenge, we will not secondguess the jury’s credibility determinations. United States v.

Brandt, 546 F.3d 912, 917 (7th Cir. 2008).

gested he was occupying the house. The presence of Irby’s

state identification card, social security card, and mail

addressed to him in the master bedroom demonstrated

that he was living in the room where the marijuana and

crack were found. Trial testimony established that the

defendant came from the house, walked to Saraceno’s

car, and attempted to sell marijuana, thus supporting

the inference that he was dealing marijuana from the

house. A jury reasonably could have inferred that the

marijuana the defendant took to the car came from the

master bedroom where the crack and marijuana were

found and which he was occupying. The fact that the

bags of marijuana and the loose marijuana on the bed

in the master bedroom were mingled with the baggies

of crack supports an inference that the crack and marijuana were owned or controlled by the same person.

This evidence was substantial enough to show a nexus

between Irby and the crack.3

Regarding the intent to distribute element, a government witness testified that the quantity of crack (16.9

grams) was inconsistent with personal use and that its

packaging in fifty-nine baggies was consistent with an

intent to distribute. The four scales found in the master
No. 08-1307 7

bedroom also suggest that the crack had been prepared

for sale rather than personal consumption. This evidence

was sufficient to show that Irby intended to distribute

the crack.

Irby does not contend that evidence was lacking on

the third element—knowledge that the crack was a controlled substance. Even had he made this argument, the

surveillance cameras around the front entrance, the livefeed monitors, and the scanner set to the police frequency

suggest that Irby wished to avoid detection by law enforcement and were sufficient to permit an inference

that he knew that the crack was a controlled substance.

Cf. United States v. Mendoza, 510 F.3d 749, 752-53 (7th Cir.

2007) (the fact that a defendant required a buyer to go

through certain procedures before giving him drugs

suggested he was trying to avoid drawing the attention

of the authorities and allowed a reasonable jury to infer

the defendant knew he was distributing a controlled

substance).

For these reasons, we easily conclude that the record

is not devoid of evidence of Irby’s guilt and that the

evidence on each element of the charged offense was not

so slight that his conviction is shocking. Accordingly,

his challenge to the sufficiency of the evidence fails.

B. Admission of the CI’s Statements

1. Confrontation Clause

The defendant argues that the admission of the CI’s

statements (concerning the identity of the person selling
8 No. 08-1307

crack from 805 East Republic) through Batterham’s testimony violated his Sixth Amendment right to confront

witnesses against him. As we noted earlier, Irby did not

object to the introduction of the statements. The initial

question is whether this is properly characterized as a

waiver or a forfeiture. “Whereas forfeiture is the failure

to make the timely assertion of a right, waiver is the

‘intentional relinquishment or abandonment of a known

right.’ ” United States v. Olano, 507 U.S. 725, 733 (1993)

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Plainerror review under Federal Rule of Criminal Procedure

52(b) allows us to correct errors which were forfeited in

the district court. Id. at 731. However, if a right was

waived, there was no error and thus even plain-error

review is unavailable. United States v. Babul, 476 F.3d 498,

500 (7th Cir. 2007). The record shows that Irby simply

failed to make a timely assertion of his right; he

said nothing to indicate intentional relinquishment or

abandonment. This means that there was only a forfeiture, and we can proceed with plain error review.

The plain-error standard comprises three requirements

and one discretionary component. United States v. Sawyer,

521 F.3d 792, 796 (7th Cir. 2008). The defendant must

show there was 1) an error 2) that was plain 3) that

affected his substantial rights. Olano, 507 U.S. at 732. If

these three conditions are met, we may exercise our

discretion to rectify the error but only if it “seriously

affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks and

citation omitted). We often have stated that this last part

of the plain-error standard requires a “miscarriage of
No. 08-1307 9

We have previously suggested that plain-error review is ill- 4

suited for claimed confrontation-clause violations when there

(continued...)

justice” before we will reverse. See, e.g., United States

v. Anderson, 450 F.3d 294, 299 (7th Cir. 2006).

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const.

amend. VI. The Confrontation Clause applies only

to hearsay, see Crawford v. Washington, 541 U.S. 36, 59-60

n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414

(1985)), that is “testimonial” in nature, Davis v. Washington,

547 U.S. 813, 823-25 (2006). In Crawford, the Supreme

Court held that the Confrontation Clause enables a defendant to bar the admission of testimonial statements of a

witness who did not appear at trial unless the witness

was unavailable to testify and the defendant had a

prior opportunity to cross-examine him. 541 U.S. at 53-54.

In Davis, the Court said that statements made in the

course of a police interrogation are testimonial “when the

circumstances objectively indicate that there is no . . .

ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” 547

U.S. at 822.

Although the CI’s statements were probably testimonial

hearsay per Davis, Irby’s counsel may have had good

reasons for not objecting to their introduction; nevertheless, we will assume arguendo that their admission

was plain error.4
10 No. 08-1307

(...continued) 4

may have been strategic reasons for a defendant not to object

to the admission of testimonial hearsay. United States v. Moon,

512 F.3d 359, 361 (7th Cir. 2008). In this case, had Irby raised

and the district court sustained a confrontation-clause objection to the hearsay statements, the result could have been

the live and potentially more forceful testimony of the CI from

the witness stand. Faced with this prospect, it may have been

to Irby’s advantage to let the statements come into evidence

through Officer Batterham. In addition, the defendant may

have decided that, after the first hearsay statement came

into evidence identifying Irby as the person who was selling

crack at 805 East Republic, it was best to let it and all similar

subsequent statements quietly pass before the jury rather

than calling undue attention to them while trying to put the

cat back in the bag. Because we decide the case assuming the

presence of plain error, we need not speculate further.

Under the third prong of the plain-error standard, Irby

must demonstrate that his substantial rights were

affected, i.e., but for any confrontation-clause error the

outcome of the trial probably would have been different.

United States v. Prude, 489 F.3d 873, 880 (7th Cir. 2007). We

conclude he cannot make this showing in light of the

following overwhelming evidence of his guilt. One of the

arresting officers testified that Irby took a bag of

marijuana out of his pocket and dropped it on the ground

just before he was arrested near Saraceno’s car, and a drugtrafficking expert testified that this amount of marijuana

was worth ten dollars. The police video that was

received into evidence showed the bag on the ground near

Irby. The video also showed a ten-dollar bill resting
No. 08-1307 11

between the seat and passenger door of Saraceno’s car.

Officer Batterham testified that he observed Irby go in

and out of the house at 805 East Republic on two

separate occasions: one when he fed a dog and the

other just before the raid. The video showed that the

defendant’s state identification card, social security card,

and mail addressed to him at 805 East Republic were

present in the master bedroom. The video also showed a

pan of loose marijuana and several bags of marijuana

on the bed in the master bedroom, four scales, and a

grocery bag that contained several bags of marijuana

and fifty-nine baggies of crack. The three cameras

guarding the front of the house were on the video. The

monitors located in the master bedroom that were receiving a live-feed from these cameras were also on the

video, as was the scanner from the same room that was

tuned to the frequency used by the Peoria Police Department. The bag of marijuana that Irby dropped before

he was arrested, the ten-dollar bill from Saraceno’s car,

Irby’s state identification card, social security card, and

mail addressed to him at 805 East Republic were admitted

into evidence, as were the marijuana, 16.9 grams of crack,

four scales, two monitors and scanner from the master

bedroom, and the three surveillance cameras.

This array of evidence that was presented to the jury

was compelling proof that Irby was in the illegal drug

business and specifically that he possessed with the

intent to distribute more than five grams of crack. Because

Irby has not shown that his substantial rights were

affected by the admission of the CI’s statements, we have
12 No. 08-1307

no occasion to exercise our discretion to reverse under

the fourth part of the plain-error standard.

2. Inadmissible Hearsay

The defendant also claims that the district court erred

in admitting the CI’s statements because they were inadmissible hearsay under the Federal Rules of Evidence.

Irby did not raise this objection at trial, so we review for

plain error. Even if these statements were hearsay not

covered by any exception and the district court erred

in admitting them, for the same reasons stated in our

discussion of his confrontation-clause challenge we

conclude that such error did not affect Irby’s substantial

rights.

III.

Having found that the record is not devoid of proof of

Irby’s guilt and that the evidence on each element of the

charged offense was not so tenuous that his conviction

is shocking, we reject his challenge to the sufficiency of

the evidence. Because Irby has not shown that his substantial rights were affected by the admission of the CI’s

out-of-court statements, we need not exercise our discretion to disturb his conviction. We AFFIRM.

3-11-09