United States of America v. DAREK HAYNES, BRODERICK JONES, EURAL BLACK, and BRENT TERRY

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1466, 08-1608, 08-1616 & 08-1617
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAREK HAYNES, BRODERICK JONES,
EURAL BLACK, and BRENT TERRY,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cr-70—Ronald A. Guzmán, Judge.
ARGUED JUNE 5, 2009—DECIDED SEPTEMBER 17, 2009
Before POSNER, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Crime is a risky business. One
of the risks is that you will get caught. That happened to
Darek Haynes, Broderick Jones, Eural Black, and Brent
Terry. They were charged with a drug conspiracy, a
robbery and extortion conspiracy, and related offenses.
Haynes, Jones, and Black also were charged with a racke-
teering conspiracy. Haynes and Jones pled guilty. Black

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2 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
As you read this, it may be difficult to tell the cops from the 1
crooks. That’s because many of the actors in these events
are both. You may be reminded of a popular movie released
in 2001, Training Day, featuring Denzel Washington’s Oscar-
winning portrayal of the ultimate corrupt cop. See
http://trainingday.warnerbros.com (last visited Sept. 4, 2009).
In our case, life imitates art.
and Terry were tried by a jury and convicted. These
defendants appeal, raising several issues. Finding no
error, we affirm.
I. Background
The following facts are taken from the evidence
viewed in the light most favorable to the government
with all reasonable inferences drawn in the govern-
ment’s favor, as we must. The defendants were involved1
in a criminal enterprise that included bad cops and drug
dealers in Chicago, Illinois, beginning as early as 1999
and continuing into 2005. The drug dealers in the enter-
prise provided the corrupt cops with information about
the location of narcotics and money held by other drug
dealers. The corrupt officers used that information to
conduct traffic stops and home invasions and seize
any drugs and money they found. The cops then sold the
drugs with the help of the drug dealers, and the
coconspirators divided the proceeds. None of this was
legitimate law enforcement activity.
The leader of the conspiracy was defendant Broderick
Jones, then a Chicago police officer. Someone in the

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 3
Chicago Police Department (CPD) management must
have had suspicions about him because on August 22,
2003, Jones was informed by the CPD that he was no
longer authorized to exercise police authority and was
being placed on “restricted duty” pending an investi-
gation into his conduct. He had to surrender his CPD
star, shield, and ID card, and was ordered not to carry
a firearm or any other weapon, not to exercise his police
powers, and not to drive a CPD motor vehicle without
authorization.
In the summer of 2004, Jones called his former police
partner, Erik Johnson, and asked for his assistance in
ripping off a drug dealer. At the time of Jones’s call,
Johnson was on duty with his new CPD partner, defendant
Eural Black, patrolling in Johnson’s unmarked police
cruiser. Johnson agreed to meet Jones at the intersection
of 87th Street and Lafayette Avenue to discuss the
ripoff. When Black and Johnson met Jones, he told them
that a drug courier would be driving by shortly and that
he wanted them to stop the car and seize any narcotics
they found. Jones would sell the drugs and give
Johnson and Black between $8,000 and $10,000. Black
and Johnson discussed Jones’s proposal and agreed to
participate. Once they told Jones that they would join
in, Jones called someone on his cell phone. Then the
three cops waited for several hours for the drug courier,
but he didn’t show. Since it was approaching the end
of their shift, Black and Johnson left.
A few weeks later, Jones again called Johnson while
Johnson was on duty patrolling with Black in his CPD

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4 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
cruiser. Jones asked Johnson to meet him at the inter-
section of 87th Street and Lafayette Avenue, the same
location where they had met before. Johnson told Black
that Jones wanted to meet with them again, and they
drove to the intersection where they met Jones. Jones
advised them that a drug courier would be driving
through the neighborhood and that he wanted them to
pull him over, search his vehicle, and seize any
narcotics found. He again offered to pay Johnson and
Black between $8,000 and $10,000 for their assistance.
Johnson understood that they would be paid from the
sale of any drugs seized during their traffic stop of the
drug courier.
Black and Johnson agreed to join in the ripoff. Jones got
into the back of the police cruiser and they drove to the
intersection of 91st Street and Indiana Avenue where
they waited for the drug courier. Jones said that the
courier would be a Hispanic male driving a red sport
utility vehicle (SUV). Soon enough, a Hispanic male
driving a red SUV appeared. Johnson pulled behind the
SUV, activated his cruiser’s siren and lights, and ordered
the driver to pull over. The driver complied. Jones, John-
son, and Black exited the police cruiser and approached
the SUV. Jones pulled the driver out and patted him
down. Black handcuffed the driver and placed him in
the police cruiser. Then Jones searched the SUV. When
he had completed his search, the officers released the
driver. Johnson didn’t see Jones remove any drugs
from the SUV, but when Johnson returned to the
cruiser after the search, he saw an empty cardboard
box inside that hadn’t been there before. According to

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 5
Johnson, the box was large enough to contain a one-
kilogram brick of cocaine.
Jones, Johnson, and Black returned to 91st and
Indiana, where Jones had left his personal vehicle.
Jones advised the other two that he would call them in a
while to inform them when and where they could meet
him for payment. That evening, Jones called Johnson and
the three arranged to meet. When they met that night,
Jones gave Johnson a large bag of money. Black and
Johnson went to Johnson’s house, counted the money,
$12,000, and split it between themselves.
On July 21, 2004, Jones called Johnson a third time,
offering him another chance to participate in ripping off
a drug courier. Again, Johnson was on duty with Black
and in his CPD cruiser. Johnson told Black about Jones’s
offer, and Black agreed to participate, saying that he
needed the cash. This time they met Jones at 87th Street
and Ashland Avenue where Jones told them that a His-
panic male in a black Chevy Blazer SUV would be
driving northbound on Ashland that afternoon. Jones
said the male was a drug courier and that Jones wanted
them to pull him over, search his vehicle, and seize any
drugs inside. Jones gave Johnson a Nextel cell phone
with a “Direct Connect” walkie talkie feature so they
could communicate and told them to wait on Ashland.
A while later, Jones called Johnson on the Nextel phone
and told him that the Blazer was approaching. The
Blazer passed Black and Johnson, and Johnson pulled
out, activated his lights and siren, and pulled the SUV
over.

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6 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
In an ironic twist of fate, the driver was a confidential infor- 2
mant (CI) working with the CPD in a legitimate drug investiga-
tion. As part of that investigation, legitimate narcotics officers
were using the CI to broker a sale of cocaine to Joseph Wilson,
the owner of a car wash in the 8500 block of South Ashland
Avenue who was involved in drug dealing. Though the CPD
had been suspicious of Jones’s activities, it does not appear
that the CPD had specific information regarding Jones’s and
his cohorts’ illegal activities that day. However, earlier in the
day, some CPD officers working with the CI had observed a
suspected drug courier being followed by Jones in his
personal vehicle and CPD officers defendant Darek Haynes
and Corey Flagg in an unmarked police cruiser. When Haynes
and Flagg pulled over the courier and searched his car, the
CPD officers knew something was up—neither Jones, Haynes,
nor Flagg was participating in the narcotics investigation and
all of them were outside of their assigned district. The officers
contacted the CPD’s Internal Affairs Division, which con-
tacted the FBI. The jig was just about up for our bold defendants.
Black and Johnson exited the cruiser and approached
the Blazer. Both of them were wearing their normal
tactical gear and their guns. Johnson removed the driver
from the Blazer and patted him down. Black handcuffed2
him and placed him in the police cruiser. By then Jones
had parked his own vehicle a few car lengths behind the
cruiser. Johnson searched the Blazer, receiving specific
instructions from Jones through Direct Connect about
where to look. Johnson, however, didn’t find any drugs.
Johnson and Black released the driver and then met
Jones a few blocks away to discuss the failed ripoff at-
tempt. Jones, Black, and Johnson were photographed

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 7
Jerry’s brother, Joel Montgomery, makes his way into this 3
opinion as well; thus, to avoid confusion, we will refer to
each of them by their first name.
during the stop by legitimate CPD officers. These photo-
graphs were introduced into evidence at trial.
The government obtained telephone records from
July 21, 2004, for calls made between phones registered
to the CI, Jones, Johnson, and other CPD officers known
to Jones. The records showed that six calls were made
that morning and afternoon between Jones’s cell phone
and a cell phone registered to Defendant Brent Terry.
Several of those calls were placed within two minutes of
a call between Jones’s phone and a phone registered or
used by one of the other officers known to Jones. A sum-
mary of these telephone calls was introduced into
evidence at trial.
Within a few days of the July 21 attempted ripoff, the
government obtained a wire tap on Joseph Wilson’s
phone. A few weeks later, the government obtained a
wire tap on one of Jones’s cell phones. The wire taps
provided a good deal of evidence of Jones’s planned
ripoffs of drug dealers and use of corrupt police officers
to make the ripoffs appear to be legitimate police work.
Early in September, Jones devised a plan to search the
home of Jerry Montgomery, whom Jones knew to be a
drug dealer, and steal his cocaine and money. Jerry knew3
Jones, so Jones needed another officer to execute the
search. Corey Flagg, another former CPD partner of
Jones, agreed to play that role. Jones thought Flagg

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8 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
would need another officer along, so Jones attempted to
contact other officers he knew from the Seventh District
to ask them to participate. Jones asked for Black, but
Black was off duty that day. Jones eventually reached
defendant Darek Haynes who agreed to participate
in ripping off Jerry.
On September 8, 2004, Flagg and Haynes unlawfully
entered the building where Jerry lived. Their plans were
thwarted, however. A neighbor downstairs confronted
them, and Flagg feared he might call the CPD to com-
plain. So Haynes left the scene and Flagg called
his sergeant and other officers to make things look legiti-
mate. When the other officers arrived, Flagg had to in-
ventory the drugs and weapons found and had Jerry
arrested. Jerry attempted to get released by telling the
arresting officers that he knew Jones. Flagg let Jerry
call Jones, and Jerry pleaded with Jones to be released.
Jones called Terry, explaining that Jerry had
been arrested by one of Jones’s associates and had been
throwing Jones’s name around. Jones told Terry that
Jerry would have been released had he bribed the associ-
ate, but Jerry didn’t have any cash. Terry called Jones
later that evening and asked whether it was still possible
to get Jerry out. But Jones said it was too late for that.
Jones didn’t obtain any drugs or cash from Jerry’s
house, but he did discover some good information. Jones
learned that Jerry’s drug source was Jerry’s girlfriend,
Marie Townsend, and that she continued to run Jerry’s
drug business while he was detained on the charges
arising from the invasion of his home. So, Jones

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 9
formulated a plan to rip off Townsend. The day after
the failed home invasion, Jones called Terry and
informed him that Jerry’s source was his girlfriend. Terry
said that he knew the girlfriend and would try to find a
way to contact her. He had a tough time contacting
Townsend, though.
So, on September 22, 2004, Jones called Jerry’s estranged
brother, Joel, and told him that Jones’s “buddy B” wanted
to get in touch with Jerry’s girlfriend. (“B” was a nick-
name Jones used for Terry.) Joel said that Townsend
had Jerry’s cell phone while Jerry was in jail and that
“B” should try Jerry’s number. Joel indicated that
Townsend had been taking calls on Jerry’s cell phone
from Jerry’s associates and would often ask Joel whether
the associate could be trusted. Joel offered to vouch for
“B” if Townsend asked.
Jones and Joel discussed the planned transaction
with Townsend, including the number of kilograms “B”
should order from her. Jones asked if Townsend could
handle a “dub,” meaning twenty kilograms, and Joel
said he thought so. But, he added, if “B” asked for a
“dub” that might “spook” Townsend and she might
want to bring someone else with her to the transaction.
Thus, Joel recommended that “B” ask for less than a “dub,”
more like five to ten kilograms. Immediately after the
call with Joel, Jones called Terry and advised him that
Joel suggested that Terry call Jerry’s phone to reach
Townsend.
On September 24, Terry called Jones and reported that
he was “supposed to meet up with old girl in a little

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10 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
bit” and he would call Jones back later. Jones
immediately called Flagg, saying “My buddy B, you
know my buddy B? He about to hook up with old girl
and then . . . he going to know something for me, and . . .
I’ll hit you later.” A few days later, on September 27, Jones
met with Flagg to discuss the plan to rip off Townsend.
Jones told Flagg that his buddy “B” would meet with
Townsend and try to buy ten kilograms of cocaine. Jones
also told Flagg that when the drugs arrived at the
meeting site, “B” would call Jones and say, “bring the
money,” which was a signal for Jones and Flagg to come
to the scene, seize the drugs, and pretend to arrest “B.”
That evening, Terry gave the signal. So Jones and Flagg
drove in Flagg’s unmarked CPD cruiser to a parking
lot near the intersection of 87th Street and Wabash Ave-
nue. Upon arrival, they saw Terry and Townsend
in Townsend’s car. Flagg was wearing his CPD badge
and handgun. Jones and Flagg removed Terry and
Townsend from the car, handcuffed them, and placed
them in the cruiser. Jones seized a bag from the car and
put it in the trunk of the cruiser. Then Jones and Flagg
released Townsend. Jones, Flagg, and Terry drove to
Flagg’s house where they opened the bag that had been
removed from Townsend’s car. Inside, Flagg observed
two brick-shaped packages that he believed, based on
his experience, were two kilograms of cocaine. He also
saw several other brick-shaped objects beneath the
two packages and believed they were cocaine as well.
Based on his observations and the size of the bag, Flagg
believed that the bag contained ten kilograms of cocaine.
Jones called a third person to say he was on his way,

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 11
and then Jones and Terry departed with the cocaine.
Later in the evening, Jones returned to Flagg’s house. Jones
told Flagg that he kept five kilograms of cocaine and gave
“B” five. Jones gave Flagg between $10,000 and $12,000,
which Flagg understood came from the sale of the co-
caine. Flagg eventually received a total of $21,000 to
$25,000 for his role in the Townsend ripoff.
On October 15, 2004, Jerry was released from detention.
Within a few weeks, he was pulled over by CPD officers
who called Flagg to the scene. When Flagg arrived, Jerry
revealed his suspicion that the stop of Townsend and
Terry was not legitimate. Flagg called Jones from the
scene to relay this to him. Later that month, Jones
called Terry to inform him that Jerry might be on to
them. Jones admitted that he was a bit worried, but he
was going to meet with his “buddy” who would “tell
[him] everything.” After Jones talked to his “buddy,” he
called Terry to say that he thought Jerry knew that
Townsend’s arrest was a scam. Jones also told Terry
that Jerry had mentioned Terry’s name.
On November 13, 2004, Jones and James Walker agreed
to rip off a Mexican drug supplier. According to Jones’s
plan, Walker would invite the supplier to bring drugs
to the car wash at the intersection of 85th and Ashland
and would back out at the last minute. Then, when the
supplier left the car wash, Jones and other crooked cops
would stop him, seize the drugs, and let him go. Jones
tried feverishly to contact officers to assist in the ripoff.
He tried to reach Black, but got his voice mail. Later
that afternoon, Black returned Jones’s call, and Jones

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12 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
said that he “might have something for you.” Black
responded, “Call me man.” Jones replied, “Okay . . . just
stay around for a minute, I got to make a call real quick.”
Black asked where he should go, and Jones instructed, “it’s
gonna be over there where we was last time by the car
wash . . . 85th and Ashland.” Black told Jones, “I’m head-
ing that way.” Jones called Black again and advised
that “we waiting for him to call back.” Black said he was
on his way. That afternoon, law enforcement agents,
conducting surveillance in the vicinity of the car wash
at 8540 S. Ashland Avenue, observed Black’s CPD cruiser
parked in a parking lot near the intersection of 87th
and Ashland with two black males inside. Nothing came
of the planned ripoff of the Mexican drug supplier.
A few hours later, Jones and Terry spoke by phone. Jones
said he was at the intersection of 85th and Ashland and
had “just tried to do something,” but it “didn’t go
through.” Jones said that he “was going to come at
you tonight too, but . . . it ain’t followed through so
we’ll see what happens in the morning.” Jones and Terry
talked on the phone again on November 23, 2004, when
Jones stated, “I need another demo.” Terry replied, “I’ve
been trying to work on some s— too though. . . . [W]e got
to get up, link up together this week for sure.”
Haynes, Jones, Black, Terry were charged with a drug
conspiracy involving five kilograms or more of mixtures
containing cocaine and quantities of marijuana and a
robbery and extortion conspiracy in violation of 21
U.S.C. § 846 and 18 U.S.C. § 1951. Haynes, Jones, and
Black also were charged with a racketeering conspiracy

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 13
in violation of 18 U.S.C. § 1962(d). All four were charged
with related drug and robbery and extortion offenses
and one or more firearms offenses under 18 U.S.C. § 924(c).
Haynes pled guilty and was sentenced to 168 months
on the conspiracy convictions and a consecutive 60-
month sentence on the § 924(c) conviction for a total of
228 months. Jones pled guilty and was sentenced
to 240 months on the conspiracy counts and a consecutive
60-month sentence on the firearm conviction for a total
of 300 months. Black and Terry were tried by a jury
and convicted as charged. Black was sentenced to 480
months’ imprisonment. Terry was sentenced to 168
months for the substantive drug conspiracies and a 60-
month consecutive sentence on the § 924(c) conviction
for a total of 228 months. These appeals followed.
II. Discussion
Black and Terry claim that the trial evidence was insuf-
ficient to support their conspiracy convictions, resulting
in a fatal variance between the conspiracy charged and
the conspiracy proved at trial. They also challenge the
sufficiency of the evidence to support their § 924(c) con-
victions. Terry argues that there was insufficient
evidence to prove that he possessed five kilograms of
cocaine and that a recorded conversation between Jones
and Ricky Dee (who was not charged in the indictment)
was erroneously admitted as a coconspirator statement
under Fed. R. Evid. 801(d)(2)(E). Haynes challenges the
district court’s decision not to give him a minor role
reduction under U.S.S.G. § 3B1.2(b) and its application of

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14 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Terry has adopted Black’s conspiracy variance and hub-and- 4
spoke conspiracy arguments and vice versa.
a four-level enhancement under U.S.S.G. § 3B1.5(2)(B) for
his use of body armor. He also challenges the imposition
of a consecutive five-year sentence for his firearm con-
viction. Jones argues that the district court erred in apply-
ing the use of body armor enhancement because it also
applied an enhancement for abuse of a position of trust.
We will address each of these claims in turn, starting
with the challenges to the proof at trial.
A. Trial Issues
1. Black and Terry: Conspiracy Variance
Black and Terry first complain that there was a fatal
variance between the conspiracy charged in the indict-
ment and the conspiracy proved at trial. A fatal variance4
exists “when the facts proved at trial differ from those
alleged in the indictment.” United States v. Dean, No. 08-
3287, 2009 WL 2341676, at *4 (7th Cir. Aug. 5, 2009) (quot-
ing United States v. Longstreet, 567 F.3d 911, 918 (7th Cir.
2009)). To prove a conspiracy variance claim, a defendant
must establish that “the evidence at trial did not
support the jury’s finding that he joined the charged
conspiracy” and that this caused him prejudice. Id. A
conspiracy variance claim is a challenge to the
sufficiency of the evidence, see United States v. Avila,
557 F.3d 809, 815 (7th Cir. 2009), which is reviewed under
a highly deferential standard, United States v. Womack,

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 15
Black’s opening brief conceded that the defendants did not 5
make a rimless hub-and-spoke conspiracy argument and did not
request a multiple conspiracies instruction and, therefore, that
these matters are reviewed for plain error. However, Black’s
reply brief asserts that his position on the standard of review
may have been incorrect because his motion for a new trial
challenged the sufficiency of the evidence. We think Black
was right the first time. We have reviewed his motion for a new
trial and, while it challenges the sufficiency of the evidence,
there is no mention of proof of a rimless hub-and-spoke con-
spiracy or the lack of a multiple conspiracies instruction. Thus,
we review for plain error. See United States v. Groves, 470 F.3d
311, 324 (7th Cir. 2006). But even if we were to review these
issues under the more stringent de novo standard, the result
would be the same.
496 F.3d 791, 794 (7th Cir. 2007). Viewing the evidence
and drawing all reasonable inferences in the light most
favorable to the government, we consider whether the
evidence is sufficient to support the jury’s verdict. See
Dean, 2009 WL 2341676, at *4. We will “ ‘overturn a con-
viction only if the record contains no evidence from
which a reasonable juror could have found the defendant
guilty.’ ” Id. (quoting Longstreet, 567 F.3d at 918). As we
have often observed, a defendant faces a “nearly insur-
mountable” hurdle when challenging the sufficiency of
the evidence. See, e.g., United States v. Hensley, 574 F.3d
384, 390 (7th Cir. 2009) (quotation omitted).
Neither Black nor Terry raised a conspiracy variance
claim in the district court, so their burden is even
heavier; we review for plain error only. See Womack, 4965
F.3d at 794. We find plain error if an error occurred, the

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16 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
error was plain, and the error affected the defendant’s
substantial rights. Id. Thus, our task is to determine
whether the record contains evidence from which a
reasonable juror could have found Black and Terry
guilty of the conspiracies charged in the indictment.
To prove a drug or Hobbs Act conspiracy, the govern-
ment must establish that two or more persons agreed
to commit an unlawful act, and that the defendant know-
ingly and intentionally joined in the agreement. Avila,
557 F.3d at 814. Two or more persons conspired together
if they “embraced a common criminal objective, even if
they did not know each other or participate in every
aspect of the crime.” Id. (quotation omitted); see also
Longstreet, 567 F.3d at 919. The government may prove
an agreement among coconspirators by circumstantial
evidence. Avila, 557 F.3d at 816. However, two persons
have not conspired together “when each of the conspira-
tors’ agreements has its own end, and each constitutes
an end in itself.” Id. at 814 (quotation omitted). This
often comes up in a “hub-and-spoke” conspiracy,
where the core conspirator is connected to each of the
coconspirators by a “spoke.” Id. To prove a single con-
spiracy in the hub-and-spoke context, the government
must establish that a “rim” connects the spokes together;
“otherwise the conspiracy is not one but many.” United
States v. Bustamante, 493 F.3d 879, 885 (7th Cir. 2007). “This
‘rim’ is an agreement to further a single design or pur-
pose.” Avila, 557 F.3d at 814. For a single conspiracy
to exist, the conspirators “who form the wheel’s spokes
must have been aware of each other and must do some-
thing in furtherance of some single, illegal enterprise.”
Bustamante, 493 F.3d at 885 (quotation omitted).

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 17
Black and Terry contend that the government’s
evidence established a rimless hub-and-spoke conspir-
acy. Black claims that he was involved in only four
ripoffs or attempted ripoffs. Terry asserts that the
evidence proved that he was involved in just the
Townsend ripoff. They claim that the government pre-
sented no evidence that they were aware of any other
criminal activities involving the other alleged
coconspirators or that they intended to further the
wide conspiracy charged in the indictment. We, how-
ever, find no variance with respect to the proof against
either Black or Terry.
As for Black, the evidence established that he was
aware that others were assisting him and Jones in the
ripoffs and attempted ripoffs. The evidence was that
Black agreed with Jones and Erik Johnson to participate
in three ripoffs of drug dealers. Jones would relay infor-
mation to Black and Johnson about the drug cou-
rier—what type and color vehicle he would be driving,
his gender and ethnicity, and where he would be driv-
ing. Jones’s information usually panned out. It would be
reasonable for a jury to infer that Black must have known
that Jones was getting what proved to be very accurate
inside information from someone who was also involved
in the ripoff. And once Black and Johnson agreed to
participate in the first attempted ripoff, Jones called
someone in their presence. This evidence supports a
reasonable inference that the person Jones called was
involved in the ripoff and that Black was aware of that
person’s involvement.

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18 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Furthermore, after the first successful ripoff, Jones
didn’t pay Black and Johnson immediately, but instead
told them that he’d be in touch regarding payment. This
reasonably suggests that Jones had to have another con-
spirator sell the drugs to get the cash to pay Black and
Johnson. The wiretap evidence also supports the
finding that Black was aware that Jones was working
with other conspirators in setting up the ripoffs. In a
November 13 call, after Black had agreed to participate
in yet another ripoff, Jones instructed him to “stay
around for a minute, I got to make a call real quick,”
and then called Black back and advised, “we waiting
for him to call back.” These statements made directly
to Black convey that Jones wasn’t working alone in
setting up the ripoff.
The recorded conversations also support a finding
that Terry was aware that Jones was working with other
bad cops. Take, for example, the recorded conversations
shortly after Jerry Montgomery’s arrest on September 8,
2004. That night, Jones called Terry and told him that
“one of my homies just called me . . . [who] [u]sed to
work with me on my team” and reported that “your
[Terry’s] buddy,” Jerry “just got popped off [arrested]”
and “he [Jerry] flew my name.” Jones explained to
Terry that Jerry had called Jones, and Jones advised
Jerry, “you got some . . . green cause he can . . . he will
go away with some of that for sure,” meaning that Jerry
could bribe Jones’s associate to release him. Terry’s re-
sponse demonstrated that he understood what Jones
meant: Terry asked him: “[Y]ou guys . . . they can’t cut
him loose or nothing can they?” The next day, Jones

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 19
and Terry were discussing Jerry’s situation when Jones
told Terry that Jerry once had taunted him with a bag
of money and that Jones responded by telling Jerry
that he was lucky Jones knew him because he “can call
some cars right now . . . [b]e like, whoop, whoop . . . [a]nd
grab your ass and follow you.” This statement reflected
Jones’s ability to have other officers pull someone over.
In addition, on October 27, 2004, shortly after Jerry got
out of jail, he was pulled over. Jones called Terry to
inform him that one of Jones’s buddies called Jones to
report that they had pulled Jerry over and Jerry was
talking again. Jones assured Terry that his buddies were
“just going to f— with [Jerry] for a minute.” The next day,
Jones told Terry that “[y]our man [Jerry] was talking a
little bit” and “brought up” Jones’s name and also men-
tioned “B”—Terry’s nickname—in the sense that Jerry
was pointing a finger at “B.” Jones assured Terry that
he was going to meet his buddy and he’d find out what
Jerry had said. Thus, the wiretap evidence permitted a
reasonable jury to find that Terry knew that other bad
cops were assisting Jones in his criminal activities.
Moreover, the evidence clearly established that Terry
was aware of coconspirator Flagg. Both Terry and Flagg
participated with Jones in the Townsend ripoff. Once
Flagg arrived on the scene with Jones and ripped off
Townsend, Terry knew that Flagg was in on Jones’s
criminal activities. And a few days after the ripoff, Terry
asked Jones about “the split” between him and his
“buddy,” meaning Flagg.
The evidence also supported a finding that Terry partici-
pated in the conspiracy both before and after the

-- 19 of 48 --

20 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Townsend ripoff. For one, telephone records for July 21,
the day Jones, Black, and others attempted to rip off
drug couriers near Ashland and 85th Street, show six
calls between Jones and Terry. A few of these were
made within two minutes of calls between Jones’s cell
phone and a cell phone registered to or used by other
members of the conspiracy: Corey Flagg and Erik Johnson.
In addition, on September 14, Jones told James Walker in
a recorded conversation that “B” was coming over to his
house that night and he was supposed “to have some-
thing.” Jones added that “when he come . . . it’s serious
business.” Given the evidence, a reasonable jury could
infer that the “something” that Terry would have would
be another opportunity to rip off a drug dealer.
Moreover, in an October 7, 2004, conversation, Jones
was praising Terry’s performance and said, “yeah, you
good. . . . I’m thinking like damn, that man got a demo.”
(Jones testified that “demo” meant criminal activity.)
And Terry asked him, “Which, which one you talking
about?” Terry’s question implies there were several
“demos” and thus supports the inference that Terry
participated in more than one ripoff. Then, on
November 13, 2004, Jones called Terry and Terry said,
“I thought you wanted to link up. . . . [Y]ou had said you
wanted to holler at me this week for something.” Jones
responded, “Oh, yeah . . . I just tried to do something” but
it “didn’t go through.” The jury could reasonably find
that this referred to the plan to rip off the Mexican
drug dealer. Jones added that he hoped it would go
through tomorrow when he got to work. Terry responded,
“you let me know,” which a jury could reasonably infer

-- 20 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 21
indicated his continued interest in participating in
Jones’s schemes. And even later, on November 23, 2004,
Jones and Terry were recorded discussing plans for
another ripoff.
In arguing that the wiretap evidence does not prove
that he participated in a conspiracy larger than the
single ripoff of Townsend, Terry selectively identifies a
September 22 phone call between Jones and Joel Mont-
gomery in which Joel tells Jones how to contact the “old
girl.” Jones says that he will tell “B” to contact her and
then Jones and Joel agree not to tell “B” that Joel was the
source for the “old girl’s” phone number. Terry also
points to a call between himself and Jones in which Terry
asks Jones if he told Joel about Terry. Jones says he
said Terry wanted Townsend’s phone numbers, but
claimed not to know why Terry wanted them. While
Terry submits that these calls show that Jones was
keeping him in the dark about the extent of his criminal
activities, the jury was in the best position to weigh this
evidence against the other evidence that reasonably
suggests that Terry’s involvement ran deeper than he
claims.
The government’s evidence supports the finding that
Terry, Black, Jones, Flagg, and other coconspirators
were acting in furtherance of a single, illegal purpose.
Terry set up drug dealers and couriers to be ripped off,
and Jones, Black, and other corrupt cops performed the
stops, invasions, and seizures of the drugs and money.
This was not a rimless hub-and-spoke conspiracy.
Terry asserts that there was no evidence that he had
any direct communication with any coconspirator

-- 21 of 48 --

22 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Even if there had been a variance, it would not necessarily 6
require reversal of their convictions. Bustamante, 493 F.3d at 885.
The “prosecutor may elect to proceed on a subset of the allega-
tions in the indictment, proving a conspiracy smaller than the
one alleged.” Id. (quotation omitted). The government easily
proved that Black and Terry at the very least joined a subset
of the alleged conspiracies.
other than Jones. However, “[c]oconspirators do not
have to have contact with, or even know, all of the other
conspirators.” United States v. Frazier, 213 F.3d 409, 415 (7th
Cir. 2000). And coconspirators need not participate in
every aspect of the scheme. Avila, 557 F.3d at 814. The
evidence supported the finding that Terry was aware
that others were assisting Jones in planning and con-
ducting the ripoffs; Terry did not have to talk with them
to gain that knowledge.
To find for Black and Terry on their conspiracy
variance claims, we would have to reweigh the evidence
and second-guess the jury’s credibility determinations.
In the absence of truly exceptional circumstances, and
they have not pointed to any, we cannot do so. See Dean,
2009 WL 2341676, at *5. Accordingly, we conclude that
there was sufficient evidence from which a reasonable
jury could have found Black and Terry guilty of the
conspiracies with which they were charged in the in-
dictment.6
Black and Terry also suggest that the district court erred
in failing to give a multiple conspiracies instruction.
Because neither of them requested a multiple con-

-- 22 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 23
spiracies instruction they forfeited this challenge on
appeal and our review is for plain error only. See
Longstreet, 567 F.3d at 921. We find no error—plain or
otherwise—in the failure to give a multiple conspiracies
instruction in this case. As discussed, the evidence
was sufficient to establish Black’s and Terry’s participa-
tion in the overall conspiracy charged in the indictment.
2. Black: Sufficiency of Evidence
for § 924(c) Conviction
Black argues that the evidence was insufficient to
sustain his firearm conviction under § 924(c). He doesn’t
dispute that he carried a firearm during the attempted
ripoff; he disputes only whether he carried the firearm
“in relation to” the attempted ripoff. Section 924(c)
requires a nexus between the firearm and the alleged
crime; mere possession of a firearm by a person engaged
in criminal activity is insufficient. United States v. Harvey,
484 F.3d 453, 457 (7th Cir. 2007). Black claims that the
evidence failed to establish any nexus between his
weapon and the July 21 attempted ripoff. (Recall the
deferential standard of review for such challenges and
the high hurdle a defendant must clear to gain relief on
such an appellate challenge. See Hensley, 574 F.3d at 390.)
The government responds that Black forfeited this chal-
lenge by failing to raise it when moving for judgment
of acquittal. Black doesn’t argue otherwise, so we
review for plain error. Under this standard, a defendant
must show “that a manifest miscarriage of justice will
occur if his conviction is not reversed.” Id. at 390-91

-- 23 of 48 --

24 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Black makes a few arguments related to the possessed “in 7
furtherance of” prong, but the government relies on the
carried “during and in relation to” prong.
(quotation omitted). In other words, the record must be
“devoid of evidence pointing to guilt” or “the evidence
on a key element” must have been “so tenuous that a
conviction would be shocking.” Id. (quotation omitted).
Black can’t meet this standard.
The government argues that the evidence was
sufficient to prove that Black carried a firearm during
and in relation to the July 21, 2004 attempted ripoff.7
We addressed a similar argument in United States v.
Moore, 363 F.3d 631 (7th Cir. 2004), rev’d sub nom. by Young
v. United States, 543 U.S. 1100 (2005). In that case, the
defendant police officers were convicted under § 924(c)
for carrying firearms while engaging in acts of robbery
and extortion and while escorting drug couriers around.
On appeal, they argued that it was just a coincidence
that they carried their service revolvers during the acts
for which they were convicted—they were cops and cops
had to carry weapons. We rejected their argument, con-
cluding that the evidence established that they carried
guns in relation to a drug trafficking offense. Id. at 640-41.
We reasoned that just as a police badge and so-called
“cop talk” were essential to their drug escort activities, so
were their weapons. Id. at 640. The defendants were
hired “to play the role of a police officer, which neces-
sarily entails carrying a service revolver” and “to use
their status as police officers, with all the trappings, to

-- 24 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 25
protect [the] drug couriers.” Id. at 641. This we con-
cluded was sufficient to support their convictions for
carrying a gun in relation to a drug trafficking crime. Id.
We reached a similar result in United States v. Patterson,
348 F.3d 218 (7th Cir. 2003), where the defendant police
officer was convicted of a firearms offense in relation to
a drug trafficking offense. Patterson did not dispute that
he possessed his service revolver while attempting to
steal narcotics and money. He argued, however, that
the evidence failed to prove that he carried the firearm
for the purpose of accomplishing the ripoff. Id. at 226.
We said that the “in relation to” language required that
the firearm “ ‘have some purpose or effect with respect
to the drug trafficking crime . . . [and] the gun at least
must facilitate, or have the potential of facilitating, the
drug trafficking offense.’ ” Id. (quoting Smith v. United
States, 508 U.S. 223, 238 (1993) (internal quotations and
alterations omitted)). We found this standard satisfied
for two reasons. First, the firearm was necessary for
the plan that required the defendant to pretend to be
performing a legitimate police raid, which required
legitimate-looking officers, which in turn, required them
to carry firearms. And, second, we concluded that the
jury could have found that the firearm provided the
defendant with a needed sense of security. Id. at 227.
The reasoning in Moore and Patterson applies to Black’s
case as well. Black’s participation in the conspiracy was
sought because he was a police officer who wore a uni-
form, had a badge, and could effect traffic stops and
seizures, and conduct other police work. A reasonable

-- 25 of 48 --

26 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
jury could have found that Black carried his police hand-
gun in order to make it appear that he was a legitimate
cop performing legitimate police work. Black contends
that there was no evidence that his weapon was
exposed, drawn, or brandished during the attempted
ripoff. That makes no difference. A reasonable jury could
still conclude that he carried his gun in an effort to
appear to be a legitimate police officer, performing a
legitimate stop. At the least, a reasonable jury could
have found that the gun provided Black with a sense
of security, something that would come in handy when
one is attempting to rip off a drug dealer. We therefore
find that the evidence was sufficient to establish the
required nexus between Black’s weapon and the July 21
attempted ripoff.
Black next suggests that the § 924(c) charges in Counts
Four and Seven were duplicitous, requiring reversal of his
§ 924(c) convictions. He also claims that the district court
conflated the possessed “in furtherance of” and used or
carried “during and in relation to” prongs of § 924(c).
Counts Four and Seven charged that Black “knowingly
possessed a firearm in furtherance of, and used, carried,
and brandished a firearm during and in relation to, a
drug trafficking crime . . .” in violation of § 924(c).
The court’s jury instructions on Counts 4 and 7 read:
To prove defendant Black guilty of the weapons
offense as charged . . . , the government must prove
the following propositions:
First, that the defendant committed one of the
following crimes: [as charged in the relevant
Count]; and

-- 26 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 27
Second, that the defendant knowingly possessed
a firearm in furtherance of, or knowingly used or
carried a firearm during and in relation to, that
crime.
“An indictment is duplicitous if it charges two or more
offenses in a single count.” United States v. Pansier, No. 07-
3771, 2009 WL 2448414, at *7 (7th Cir. Aug. 12, 2009).
Black did not raise a timely challenge to the indictment
in the trial court, so again, we review for plain error. See
United States v. Presbitero, 569 F.3d 691, 698 (7th Cir. 2009).
Under this standard, “we will reverse only if there was
an error, that was plain, that affected the defendant’s
substantial rights, and that affected the fairness, integrity,
or public reputation of the judicial proceedings.” Id.
We find no plain error here.
Black cites United States v. Savoires, 430 F.3d 376 (6th
Cir. 2005), which states that § 924(c) criminalizes two
separate and distinct offenses: (1) a “use” or carriage
offense, which has “during and in relation to” as “its
standard of participation,” and (2) a “possession” offense,
which has “in furtherance of” as its standard. Id. at 379-
80 (quotation omitted). We, however, have not decided
that § 924(c) criminalizes two separate and distinct of-
fenses. See Harvey, 484 F.3d at 456 (noting that whether
we construe § 924(c) as creating one offense or two, its
separate parts criminalize similar behavior). And our
case law suggests that § 924(c) charges one offense
that may be committed in more ways than one. The
indictment in Moore charged the defendants with using
and carrying a firearm in relation to a crime of violence

-- 27 of 48 --

28 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
or drug trafficking offense in violation of § 924(c). One
jury instruction tracked the indictment’s language.
Another stated that the government had to prove “that
the defendant used or carried a firearm during and in
relation to” the drug trafficking crime or crime of violence.
The defendants challenged the instructions, arguing, inter
alia, that they were deprived of a unanimous verdict.
Moore, 363 F.3d at 639. We found no error, explaining that
“where a statute defines two or more ways in which an
offense may be committed, all may be alleged in the
conjunctive in one count . . . . And proof of any one of
those acts conjunctively charged may support a convic-
tion.” Id. at 640 (quoting United States v. LeDonne, 21 F.3d
1418, 1427 (7th Cir. 1994)). We thus concluded that
the indictment charging the defendants with using and
carrying firearms was not duplicitous and found no
error in the instructions. Id.
Here, the jury instructions covered the three ways in
which § 924(c) may be violated: (1) possessed in further-
ance of, and (2) used or (3) carried during and in relation
to the drug trafficking crime. Under Moore, the three
ways in which § 924(c) can be committed may be alleged
in the conjunctive in one count, as they were here, and
proof of any one of them will support Black’s conviction.
Therefore, we conclude that Counts Four and Seven
were not duplicitous and there was no error in the
§ 924(c) instructions.
Even assuming error in those instructions, the prob-
ability that the error affected the outcome of this case is
nil. Of the three ways that § 924(c) may be violated, the

-- 28 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 29
“carry” prong is the lowest standard of participation.
“Carry” includes carrying a firearm directly on the
person or in a vehicle. Muscarello v. United States, 524 U.S.
125, 131 (1998). “Uses . . . a firearm” is construed narrowly
and limited to the “active employment” of a firearm.
Muscarello, 524 U.S. at 136 (quotation omitted). And “to
the extent that the phrase ‘in furtherance of’ differs at all
from the phrase ‘during and in relation to,’ the former
wording logically connotes a higher standard of participa-
tion.” Harvey, 484 F.3d at 457. A finding that Black pos-
sessed a firearm in furtherance of, or used a firearm
during and in relation to a drug trafficking crime,
would encompass a finding that he carried a firearm
during and in relation to that crime. Thus, any error
in instructing the jury on all three prongs of § 924(c) was
harmless.
In a footnote in his reply brief, Black for the first time
complains of sentencing manipulation and disparity,
noting that Johnson received a nine-year sentence for
the exact same offenses that resulted in his forty-year
sentence. He invites the government to explain the dis-
parity. To the extent Black attempts to raise an
appealable issue based on sentencing manipulation, he
has waived it by failing to assert it in his opening brief
and by making it only in a footnote, in passing, and
without any discussion or citation to pertinent legal
authority. United States v. Boisture, 563 F.3d 295, 299 n.3
(7th Cir. 2009) (finding waiver of argument raised for
the first time in appellant’s reply brief); United States v.
Hook, 471 F.3d 766, 775 (7th Cir. 2006) (making clear that
perfunctory and undeveloped arguments and arguments

-- 29 of 48 --

30 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
unsupported by pertinent authority are waived). This
isn’t sentencing manipulation anyway. See United States
v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006). It seems
that much of the difference between Black’s and
Johnson’s sentences can be attributed to the fact that
Johnson pled guilty to two counts pursuant to a plea
agreement, whereas Black did not—he was convicted of
six counts following a jury trial; and Johnson was given
a reduction for acceptance of responsibility; Black was
not. It is commonly understood that defendants who
plead guilty typically receive a lesser sentence than
those who don’t.
3. Terry: Evidence of Drug Quantity
& Coconspirator Statements
Terry contends that the district court erred in denying
his motion for judgment of acquittal and motion for a
new trial because the government presented insufficient
evidence to prove that he possessed at least five
kilograms of cocaine. In support, he first argues that the
court erred in admitting evidence of the October 7, 2004,
telephone call between Jones and Ricky Dee. He also
argues that the other trial evidence was insufficient to
establish the drug quantity.
The district court admitted the evidence of the Jones-Dee
call as coconspirator statements under Fed. R. Evid.
801(d)(2)(E). In the recorded conversation, Jones tells Dee
that he had “a five, five demo with my man.” When Dee
asked Jones where he got “that lick,” Jones said that “one
of my homies who, uh, you know be grabbing ten of

-- 30 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 31
them at a time and s–t. He decided to woo-wop this
broad this time, you know?” Presumably, the homie was
Terry, the “ten” was ten kilograms, the “broad” was
Townsend, and the “five, five” was the division between
Jones and Terry of the seized drugs.
Under Rule 801(d)(2)(E), a “statement is not hearsay if . . .
[t]he statement is offered against a party and is . . . a
statement by a co-conspirator of a party during the
course and in furtherance of the conspiracy.” For
coconspirator statements to be admissible, the govern-
ment must prove by a preponderance of the evidence
that “(1) a conspiracy existed, (2) the defendant and the
declarant were members of the conspiracy, and (3) the
statement(s) sought to be admitted were made during
and in furtherance of the conspiracy.” United States v.
Alviar, 573 F.3d 526, 540 (7th Cir. 2009). According to
Terry, the government failed to prove the third prong.
Whether the Jones-Dee statements were properly ad-
mitted under Rule 801(d)(2)(E) turns on whether the
evidence was sufficient to prove that Terry joined the
overarching conspiracy charged in the indictment. As
noted above, it was. That Jones was a member of that
conspiracy is undisputed—he was the ringleader. So we
consider whether the Jones-Dee statements were made
during and in furtherance of the conspiracy.
The call was made on October 7, 2004, well within the
time frame of the conspiracy, which continued at least
until the end of November 2004, if not later. Thus, the
statements satisfy the “during” requirement. Statements
intended to recruit other conspirators qualify as state-

-- 31 of 48 --

32 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
But even if erroneous, any error was harmless given the 8
other evidence, described below, of the quantity of cocaine
stolen from Townsend.
ments in furtherance of a conspiracy. United States v.
Skidmore, 254 F.3d 635, 638 (7th Cir. 2001). In the call, Jones
talks about prior ripoffs and arguably was trying to recruit
Dee to buy drugs seized in the conspiracy. Though Dee
was not a conspirator, his statements provided the full
context for the conversation. Thus, the Jones-Dee state-
ments were made in furtherance of the conspiracy, and
the district court did not err in admitting them.8
Terry claims that the admission of the Jones-Dee call
prejudiced him because it was the government’s principal
evidence that the Townsend ripoff occurred and
involved more than five kilograms of cocaine. First of
all, the drug quantity is not an element of the offenses.
See 21 U.S.C. §§ 841(a), 846; see also United States v.
Kelly, 519 F.3d 355, 363 (7th Cir. 2008). It is relevant to
sentencing. If the evidence failed to establish that Terry
possessed five or more kilograms of cocaine, and the
district court sentenced him above the default
twenty-year maximum applicable to any amount of
cocaine, see 21 U.S.C. § 841(b)(1)(C), his remedy would not
be a new trial but a remand for re-sentencing subject to
the default statutory maximum term of twenty years.
Kelly, 519 F.3d at 363. But the district court sentenced
Terry to 168 months, which is below that statutory maxi-
mum, so “Apprendi [v. New Jersey, 530 U.S. 466 (2000)] is not
implicated,” id., and Terry has not shown prejudice.

-- 32 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 33
Furthermore, as Terry acknowledges, the government
presented other evidence of the quantity of drugs
involved in the Townsend ripoff. This included the Sep-
tember 22, 2004 wiretap conversation between Jones
and Joel Montgomery while Jones was planning the
Townsend ripoff in which Jones discussed with Joel how
much cocaine Terry should get from Townsend, and they
discussed five, seven, ten and twenty kilograms of cocaine.
The evidence also included Flagg’s testimony that:
(a) Jones told him that Jones and Terry had planned to
order ten kilograms from Townsend; (b) inside the bag
taken from Townsend’s car Flagg saw two bricks of
what he believed were cocaine and saw several
additional objects of like shape beneath the bricks, large
enough to be ten kilograms; (c) Flagg believed that the
bag contained ten kilograms; and (d) Jones told Flagg
that Jones had given five kilograms to Terry and kept
five for himself.
Terry asserts that because the Jones-Joel call occurred
before the Townsend ripoff, it did not reflect the
quantity of drugs actually stolen. True, the call did not
reflect the historical fact of the quantity of drugs that was
stolen from Townsend. But the statements about how
much “B” should ask Townsend for support a rea-
sonable inference as to the amount actually taken. The
fact that Terry was going to try to buy X quantity from
Townsend raises a reasonable inference that Townsend
brought X quantity to the transaction with Terry which
in turn raises a reasonable inference that X was the quan-
tity that was stolen from her.

-- 33 of 48 --

34 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Terry also suggests that the Jones-Joel call supports a
finding that the drug amount involved in the Townsend
ripoff was less than ten kilograms. But he does not
dispute that every amount Joel mentioned was greater
than five kilograms. And Terry ignores that Jones stated
that Townsend could handle a “dub,” which Joel
clarified meant “twenty,” (kilograms), and Joel answered
that she could. The Jones-Joel phone call thus supports
Flagg’s testimony that he saw what he believed was ten
kilograms of cocaine.
Terry challenges the basis for Flagg’s personal knowl-
edge as to the drug quantity. However, Terry had the
opportunity to cross-examine Flagg, and did so. Sure,
Terry can claim that Flagg is incredible, and he may not
be a choir boy, but it is not for us to judge his credibility.
See Dean, 2009 WL 2341676, at *5. That was for the jury
to decide. Terry asserts that Jones did not pay Flagg an
amount commensurate with ripping off ten kilograms
of cocaine. Terry claims it would be unreasonable to
find that Jones skimped Flagg (who didn’t get what he
expected to get) and skimped Joel (who testified that he
got nothing from the ripoff), but was generous to Terry.
A jury could reasonably infer that Jones’s “generosity” to
Terry reflected Terry’s role in the Townsend ripoff and
Jones’s trust of Terry. Anyway, Terry offers us nothing
to show why it would be reasonable to expect Jones, a
crooked cop, to treat his coconspirators fairly. Jones
wasn’t a man of principle.
Terry also complains that the prosecutor asked
numerous improper leading questions of Flagg, testifying

-- 34 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 35
as to the amount of drugs involved in the ripoff. For
example, government counsel asked, “Did you ever
receive any more money from [Jones] after that ripoff of
the 10 kilos of cocaine?” Terry acknowledges that he did
not object to any of the questions as leading. We have
considered them and disagree that they were improper
or leading. We also note that Flagg had already testified
that he observed ten kilograms of cocaine before the
government asked the allegedly improper questions.
We conclude that the evidence was sufficient to
establish beyond a reasonable doubt that Terry possessed
five kilograms or more of cocaine.
4. Terry: Foreseeability that
Flagg Would Carry a Firearm
Terry contends that the evidence is insufficient to
support his § 924(c) conviction because Flagg’s presence
at the Townsend ripoff was unexpected. He argues that
it was not reasonably foreseeable to him that a
coconspirator would have a weapon during the ripoff.
The government offered no evidence, and did not
argue, that Terry himself carried a weapon during the
ripoff. However, Terry can be held liable for the acts of
his coconspirators that were both in furtherance of the
conspiracy and foreseeable to him. United States v.
Pinkerton, 328 U.S. 640 (1946). As stated, we review chal-
lenges to the sufficiency of the evidence under a
deferential standard, and a defendant making such a
challenge faces a high hurdle. Hensley, 574 F.3d at 390.
However, Terry did not raise this challenge below, so the

-- 35 of 48 --

36 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
bar is even higher for him, and we review for plain
error. See id. He can’t clear the bar.
Terry first argues that the government failed to prove
that Flagg used or carried a weapon in relation to or
possessed a weapon in furtherance of the Townsend
ripoff. However, the evidence supports the finding that
Flagg carried a firearm during and in relation to the
Townsend ripoff. As noted, “carry” under § 924(c)
includes carrying a firearm directly on the person.
Muscarello, 524 U.S. at 131. Flagg’s testimony was that he
had his firearm on his waistband during the Townsend
ripoff.
For the same reasons that the jury could reasonably
find that Black carried a firearm in relation to his criminal
activities, discussed above, a reasonable jury could
find that Flagg carried his firearm in relation to the
Townsend ripoff. Flagg, like Black, was recruited to join
the conspiracy because he was a police officer who
could make the stops, home invasions, arrests, and
seizures appear to be legitimate police work. Police
officers carry guns. More specifically, Flagg was asked
to participate in the Townsend ripoff for this very reason.
A reasonable jury could find that Flagg’s gun was neces-
sary for the plan that required him to pretend to be per-
forming a legitimate stop, which required him to look
like a legitimate cop, which in turn, required him to wear
a gun. In addition, the jury also could have concluded
that Flagg’s gun provided him with a sense of security,
which would have come in very handy in ripping off a
known drug dealer of such a large quantity of cocaine.

-- 36 of 48 --

Nos. 08-1466, 08-1608, 08-1616 & 08-1617 37
Terry argues that the evidence was insufficient because
Flag was off duty, driving an unmarked squad car, wearing
plain clothes, and not wearing a tactical vest. We do not
understand how any of these circumstances make it
unreasonable for a jury to conclude that Flagg carried
his firearm in relation to the ripoff. As the government
argues, the fact that Flagg was off duty raises a rea-
sonable inference that it was not by mere chance that he
had his CPD weapon on his person during the ripoff. And
the absence of a police uniform or bulletproof vest seems
to make it more likely that Flagg needed the gun to make
it look as if he were a legitimate cop performing a legiti-
mate stop and seizure. Terry also suggests that the evi-
dence was insufficient because Flagg did not show his
weapon and there was no evidence that Townsend even
saw his gun. But, as mentioned, it makes no difference
that the gun was neither exposed, drawn, nor brandished.
Regardless of whether Flagg displayed his gun to
Townsend, the jury could reasonably conclude that the
presence of his gun in his waistband provided him
with security—one of the reasons we found the evidence
sufficient to establish that the Patterson defendant
carried his firearm in relation to the drug trafficking
crime. See 348 F.3d at 227.
The evidence was also sufficient to establish that it
was reasonably foreseeable to Terry that a coconspirator
would have a weapon during the Townsend ripoff. Terry
submits that Jones cut him off from knowing what the
other conspirators were doing. Terry complains that he
didn’t even know that Flagg was going to be there. Ac-
cording to Terry, he only spoke with Jones who by then

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38 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
had been stripped of his police powers and couldn’t carry
a firearm. But the evidence need not establish that Terry
knew that Flagg would carry a firearm. Nor does the
government have to prove that Terry knew that a
coconspirator would carry a firearm. The evidence need
only establish that it was reasonably foreseeable to Terry
that a coconspirator would carry a firearm.
The evidence was sufficient to support the finding
that Terry arranged to buy ten kilograms of cocaine
from Townsend and later met with her to set her up to be
ripped off. Terry knew that he had arranged to buy a
large quantity of cocaine, and he knew that he was
setting Townsend up to be ripped off. Thus, a rational
jury could infer that it was reasonably foreseeable to him
that a firearm would be carried in relation to the ripoff.
See United States v. Gutierrez, 978 F.2d 1463, 1468 (7th Cir.
1992) (“The illegal drug industry is a dangerous and
violent business, and when an individual conspires to
take part in a transaction involving a large quantity of
cocaine (such as [one] kilogram . . .) it is reasonably
foreseeable that a firearm would be carried.”). The fact
that Terry knew that Jones couldn’t carry a firearm
made it reasonably foreseeable to Terry that someone
else would be involved and would carry a gun. Terry
need not have known that person’s identity ahead of time.
Finally, Terry complains that his § 924(c) conviction was
based solely on the testimony of Flagg, who was an
admitted liar and incredible. To address this claim, we
would have to second-guess the jury’s credibility deter-
mination, which we cannot do in the absence of truly

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 39
exceptional circumstances. See Dean, 2009 WL 2341676,
at *5. Terry has not identified such circumstances. We
therefore conclude that a rational jury could have
found sufficient evidence to convict Terry under § 924(c).
B. Sentencing Issues
1. Haynes: Minor Role Reduction
Under U.S.S.G. § 3B1.2(b)
Haynes challenges the district court’s decision that he
was not entitled to a minor role reduction in his offense
level under U.S.S.G. § 3B1.2(b). We review the district
court’s interpretation and application of the Sentencing
Guidelines de novo, United States v. Abbas, 560 F.3d 660, 662
(7th Cir. 2009), and we review the decision to deny a
defendant a minor role reduction for clear error,
United States v. Panaigua-Verdugo, 537 F.3d 722, 724 (7th
Cir. 2008). We will find clear error only when our review
of the evidence leaves us “with a definite and firm con-
viction that a mistake has been committed.” Id. (quotation
omitted). A district court’s minor role decision is rarely
reversed because that court is in the best position to
evaluate the defendant’s role in the criminal activity. Id.
Under § 3B1.2(b), a defendant’s offense level can be
reduced by two levels if he was a minor participant in
the criminal activity. A defendant is a “minor participant”
if he “plays a part in committing the offense that
makes him substantially less culpable than the average
participant” and he “is less culpable than most other
participants, but [his] role could not be described as

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40 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Gonzalez uses the arguably more permissive “should” rather 9
than the mandatory “must” that Haynes uses.
minimal.” United States v. Gonzalez, 534 F.3d 613, 616 (7th
Cir. 2008) (quotation omitted); see also U.S.S.G. § 3B1.2, cmt.
n.3(A) & n.5. “ ‘However, where each person was an
“essential component” in the conspiracy, the fact that
other members of the conspiracy were more involved
does not entitle a defendant to a reduction in the offense
level.’ ” Gonzalez, 534 F.3d at 616 (quoting United States v.
Gallardo, 497 F.3d 727, 741 (7th Cir. 2007)). The defendant
bears the burden of showing by a preponderance of
the evidence that he is entitled to the minor role adjust-
ment. Id.
Haynes contends that the district court erred in not
applying the minor role adjustment because it did not
compare his role in the conspiracy to that of the average
member. He also argues that the record fails to support
the finding that he was necessary to the conspiracy. The
government agrees that a defendant’s role should be
compared to that of the average member of the
conspiracy, but maintains that Haynes did not play a
minor role. Although a defendant’s “role should be
compared to that of the average member of the conspir-
acy,” id. (quotation omitted), we have not required9
district courts to articulate elaborate comparisons on
the record. Our cases emphasize that the comparison
should be made to an average member, not to the lead-
ers. E.g., id.; Gallardo, 497 F.3d at 741.

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 41
In denying Haynes a minor role reduction, the district
court reasoned that his participation
was obviously necessary as a police officer. These
things could not have been done or would have
been much more difficult to do and much more
dangerous were the participants not police offi-
cers. . . . And I cannot envision where the use of the
authority and the power vested in a police officer
in the commission of a crime is going to be deemed
minor.
Haynes argues that his role as a police officer had no
obvious relevance to his role in the offense as compared
to others. But which others? Haynes acknowledges that
the conspiracy included five police officers and “a
number of laymen.” We understand the district court’s
comments to mean that none of the five conspiring
police officers could be considered a minor participant.
Each defendant officer’s participation was essential to
the success of the conspiracy. No matter which ripoff or
attempted ripoff is considered, a police officer’s presence
was essential. It is even fair to say that the presence of
two officers was necessary to convey the impression to
the drug dealers and couriers that these were legitimate
cops making legitimate stops and conducting legitimate
searches. After all, the record establishes that at least
two officers assisted in executing each illegal stop and
home invasion for which Haynes was sentenced. That
some of the other defendant officers were more involved
in the conspiracy than Haynes does not entitle him to
a reduction as a minor participant. See Gonzalez, 534 F.3d
at 616.

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42 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
We have observed that the district court is best suited
to address the role in the offense adjustment,
particularly “after becoming intimately acquainted with
the roles of the members of a drug conspiracy during [a
lengthy] trial.” United States v. McGee, 408 F.3d 966, 987
(7th Cir. 2005). Although Haynes pled guilty, Black and
Terry were tried to a jury—before the same judge, Judge
Guzmán, who sentenced Haynes. Over the course of the
nine-day trial, Judge Guzmán was able to become quite
knowledgeable about the various roles played by the
conspiracy’s members and he was thus able to draw
comparisons between their roles in the conspiracy. So
even though the court did not articulate a comparison
of Haynes’ role in the conspiracy to the role of the
average member, we feel confident that he made the
comparison in deciding whether Haynes was entitled to
a minor role reduction.
In addition, the presentence report’s calculation of
Haynes’ offense level was based on: (1) a ripoff of a drug
dealer of one-half kilogram of cocaine and $7,000 in
2003; (2) the failed home invasion of a drug dealer in
2003; (3) the attempted ripoff on July 21, 2004; and (4) the
failed Jerry Montgomery home invasion in September
2004. In his plea agreement, Haynes admitted to having
a direct and active involvement in all four of these
events. The conduct to which he admitted establishes
that in each instance he played an essential role as a police
officer making vehicle stops, seizing cocaine, and per-
forming home invasions. Haynes admitted that during
the invasion of Jerry Montgomery’s home, he spoke with
and displayed his badge to a neighbor who was ques-

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 43
tioning Haynes and Flagg about the legitimacy of their
presence in the building. The presentence report also
indicated that Haynes was aware of the entirety of
the offenses and that he communicated with his
codefendants while planning and conducting the of-
fenses. So, too, Haynes admitted in his plea agreement
to participating with Jones and Flagg in some of the
planning to invade Jerry’s home.
Haynes maintains that the court’s reasoning for not
giving him a minor role reduction implies impermissible
double counting because the court also relied on his use
of authority and power in applying an enhancement
for abuse of trust. Impermissible double counting occurs
when the district court imposes “two or more upward
adjustments . . . when both are premised on the same
conduct.” United States v. Blum, 534 F.3d 608, 612 (7th
Cir. 2008); see also United States v. Shearer, 479 F.3d 478,
484 (7th Cir. 2007) (stating that “impermissible double
counting . . . occurs when identical conduct justifies two
upward adjustments under the Guidelines” (quotation
omitted)). The government argues that the court did not
engage in double counting because the court made only
one upward adjustment based on the same set of facts.
We agree. Haynes is complaining that the court did not
make a downward adjustment. Haynes offers no
authority to suggest that declining to adjust an offense
level downward based on the same facts that support
an enhancement would constitute impermissible double
counting. We have found some authority to the contrary.
See United States v. Elliot, 307 Fed. Appx. 41, 43 (9th Cir.
2009) (unpublished) (“It is not impermissible double
counting to consider [defendant’s] obstruction of justice

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44 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
conduct both in imposing a sentencing enhancement
and as a basis for denying a discretionary downward
departure under the Sentencing Guidelines.”). Therefore,
we find no impermissible double counting in Haynes’s
case.
Moreover, “[t]he presence of some factual overlap is
not sufficient to trigger the prohibition on double
counting . . . where the two enhancements address
distinct aspects of a defendant’s conduct.” Blum, 534
F.3d at 612. Here, the facts supporting the adjustment
for abuse of trust are only a subset of the complete set
of facts which support the finding that Haynes did not
play a minor role. His status as a police officer gave
him the apparent authority to conduct what would seem
at first glance to be legitimate stops, thereby abusing the
trust placed in him. But as a police officer Haynes had
special skills and experience that allowed him to make
the illegal stops and home invasions. And the gun, vest,
uniform and other accouterments of law enforcement
came in quite handy during the execution of ripoffs. So
the “on the ground” aspects of his policeman status
made him an integral, not minor, actor in the ripoffs.
Thus, even if applying one enhancement and refusing to
make a downward adjustment could be considered
“double counting,” there was no double counting here.
Haynes’ role in the conspiracy was not as great as some
of his coconspirators’, but it was essential. He has not
shown that he was a minor participant. Therefore, we
reject his challenge to the district court’s finding that he
was not entitled to a reduction in offense level under
§ 3B1.2.

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 45
2. Haynes and Jones: Use of Body Armor
Under U.S.S.G. § 3B1.5(2)(B)
Haynes argues that the court erred in applying a four-
level enhancement for use of body armor because it
did not adequately explain why it imposed a four-level
adjustment instead of two, which he had argued was
appropriate. He does not challenge the factual finding
that he “used” body armor. Haynes claims that it is
unclear from the Guideline what behavior falls under
§ 3B1.5(2)(B) that warrants more severe punishment
than that under § 3B1.5(2)(A).
U.S.S.G. § 3B1.5 states:
If—
(1) the defendant was convicted of a drug traffick-
ing crime or a crime of violence; and
(2)(apply the greater)—
(A) the offense involved the use of body
armor, increase by 2 levels; or
(B) the defendant used body armor during
the commission of the offense, in prepara-
tion for the offense, or in an attempt to
avoid apprehension for the offense, in-
crease by 4 levels.
Section 3B1.5(2)(A) applies when the offense involved the
use of body armor, for example, when a codefendant used
body armor. Section 3B1.5(2)(B), however, applies when
the defendant himself used body armor. There is nothing
ambiguous about (2)(A) and (2)(B) when read together;
the two subsections are quite different.

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46 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
Jones doesn’t challenge the enhancement for abuse of trust, 10
only the enhancement for use of body armor.
Haynes admitted that he wore his bulletproof vest
during the invasion of Jerry’s house. Section 3B1.5(2)
directs the sentencing judge to “apply the greater” of (2)(A)
and (2)(B). The judge correctly applied § 3B1.5(2)(B)
rather than §3B1.5(2)(A) here. He was not required to
give a more extensive explanation than he did for
applying the four-level enhancement.
For his part, Jones contends that the district court
miscalculated his offense level by applying enhancements
both for an abuse of trust under § 3B1.3 and for use of body
armor under § 3B1.5. He argues that this was error10
because § 3B1.3 states that the “adjustment may not be
employed if an abuse of trust or skill is included in the
base offense level or specific offense characteristic.”
According to Jones, the body armor was part of his uni-
form as a CPD officer and a specific offense characteristic.
He claims that the defendant officers wore body armor
only to make their targets believe they were legitimate
CPD officers engaged in legitimate law enforcement.
His argument ignores that a “specific offense charac-
teristic” has a particular meaning in the Guidelines,
referring to adjustments to the base offense level contained
in Chapter Two. U.S.S.G. ch. 2, introductory cmt. (“Chapter
Two . . . is organized by offenses . . . . Each offense has a
corresponding base offense level and may have one or
more specific offense characteristics that adjust the
offense level upward or downward.”). Chapter Three

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Nos. 08-1466, 08-1608, 08-1616 & 08-1617 47
Adjustments are not “specific offense characteristics.” See
U.S.S.G. § 1B1.1(b), (c). Section 2D1.1, the offense
Guideline applicable to Jones’s offense of conviction,
does not have a specific offense characteristic for abuse of
trust or use of body armor. See U.S.S.G. § 2D1.1(b). Instead,
the adjustments for abuse of trust and use of body armor
were made under Chapter Three, which are not specific
offense characteristics.
Furthermore, Jones gives us no reason to equate the
use of body armor with “an abuse of trust” in this case.
The district court rejected Jones’s argument that he used
body armor only to make it look like he was a legitimate
officer engaged in legitimate law enforcement. The court
drew the reasonable inference that the body armor was
being used for its primary purpose—for protection. The
fact that the body armor may also have been used to
identify the defendant officers as legitimate Chicago cops
engaged in lawful police activity doesn’t make the en-
hancement inappropriate. See United States v. Barrett, 552
F.3d 724, 728 (8th Cir. 2009) (“The ability of body armor
to serve dual purposes does not make § 3B1.5 inapplicable
where the facts show one purpose could be to protect
the wearer from gunfire.”). We therefore find no error
in the district court’s application of both § 3B1.3 and
§ 3B1.5 in determining Jones’s sentence.
3. Argument Preservation
Haynes also argued that the district court erred in
imposing a 60-month consecutive sentence for his
firearm conviction under 18 U.S.C. § 924(c)(1)(A) because

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48 Nos. 08-1466, 08-1608, 08-1616 & 08-1617
he was already subject to a ten-year mandatory mini-
mum under 21 U.S.C. § 841(b)(1)(A)(ii)(II). He concedes
that United States v. Easter, 553 F.3d 519, 525-26 (7th Cir.
2009), petition for cert. filed (U.S. Mar. 26, 2009) (No. 08-
9560), and petition for cert. filed (U.S. May 20, 2009) (No. 08-
10584), forecloses this argument. He now seeks to
preserve the issue for review in the Supreme Court.
The government submits that Haynes waived the
argument by requesting the court to impose a consecutive
five-year sentence. Haynes did not challenge whether
a consecutive sentence was appropriate, but we do not
understand him to have been affirmatively requesting
such a sentence. His challenge was to the length of the
sentence under § 924(c)—the government argued for the
seven-year minimum—not to whether a consecutive
sentence was proper in the first instance. We find no
waiver of an objection to the consecutive nature of the
sentence; the argument was forfeited instead. Thus,
Haynes has preserved the argument, although it is fore-
closed by our binding precedent.
III. Conclusion
None of the challenges to the evidence, the convictions,
or sentences raised by these defendants earn them
any relief. The district court’s judgments are AFFIRMED.
9-17-09

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