United States of America v. SCOTT JOHNSON and LISA LAMB

The Honorable Joan Humphrey Lefkow, United States å
District Judge for the Northern District of Illinois, sitting by
designation.
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1762 & 10-2230
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SCOTT JOHNSON and LISA LAMB,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 08 CR 30217—Michael J. Reagan, Judge.
ARGUED APRIL 15, 2011—DECIDED AUGUST 11, 2011
Before POSNER and MANION, Circuit Judges, and
LEFKOW, District Judge.å
MANION, Circuit Judge. After a two-year investigation,
Scott Johnson was indicted and eventually convicted on
charges arising from a large cocaine-dealing conspiracy

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2 Nos. 10-1762 & 10-2230
that he ran; he was sentenced to life in prison. His girl-
friend, Lisa Lamb, was convicted on a lesser charge of
obstructing justice for destroying cocaine base to
prevent its discovery by the government and its use
against her and Johnson in a criminal prosecution. Both
appeal. Johnson challenges the district court’s refusal to
suppress certain evidence, to give requested jury instruc-
tions, and to order a mistrial based on a comment by
the prosecutor during opening statements. Lamb argues
that the criminal statute under which she was con-
victed does not apply to her conduct. She also chal-
lenges her sentence. We affirm the convictions and sen-
tences in all respects.
I.
In 2006, federal law enforcement authorities began
investigating Scott Johnson. As part of the investigation,
the Drug Enforcement Agency observed three properties
in Washington Park, Illinois, linked to Johnson: his restau-
rant (the Best Fish House), his residence (the State
Street residence), and another residence that he used as
a distribution point for cocaine (the Westmoreland resi-
dence). Based on its surveillance, records from the
utility company, and information from four confidential
informants, the government linked Johnson, along with
his associates and his girlfriend Lisa Lamb, and these
three properties to cocaine dealing. In early April 2008,
federal agents coordinated a controlled purchase of
cocaine from Johnson at the Westmoreland residence by
one of the confidential informants. That informant met

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Nos. 10-1762 & 10-2230 3
with Johnson and returned with 250 grams of cocaine.
On the same day, agents stopped a vehicle they ob-
served leaving the Westmoreland residence and re-
covered 125 grams of cocaine. Based on the evidence
gained from the four confidential informants and direct
surveillance, a magistrate judge issued search warrants
for all three properties in question.
While observing the Westmoreland residence on the
day of the controlled purchase, agents had seen Johnson
come and go several times. When they attempted to
stop his vehicle, Johnson led the agents on a high-speed
chase. Agents eventually apprehended Johnson and
discovered $16,400 in cash on his person. They then took
him with them while they executed the search warrants.
At the Best Fish House, agents discovered a large
amount of money and several firearms. And at the
State Street residence they found a vacuum heat sealer
and a big bag of rubber bands—items commonly used
in processing cocaine for distribution. During this
period, Johnson made several incriminating confes-
sions: he had received seven kilograms of cocaine the
day before and had already sold it all; and he had distrib-
uted another ten to twelve kilograms in the past two
to three weeks.
During Johnson’s chase, some agents attempted to
execute the search warrant at the Westmoreland resi-
dence. At that time, Lamb and Johnson’s brother
were still at the residence. When one agent approached
and knocked on the door, Lamb answered through an
iron gate on the door and refused to let him in, demanding

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4 Nos. 10-1762 & 10-2230
At oral argument, the government explained that two wit- 1
nesses against Lamb refused to testify at the last minute, leaving
(continued...)
a copy of the search warrant (which was with other
agents at the time). The agent told her that he would
obtain a copy of the warrant, but that she needed to
remain in front of the open door, for his safety and to
prevent the destruction of evidence. In response, Lamb
slammed the metal inner door. It took agents between
20 and 30 minutes—and the assistance of local police
and firefighters, who eventually cut out the entire door
frame—to breach the house. During that time, agents
heard toilets flushing and saw Lamb standing at the
kitchen sink, where she was apparently washing
dishes. When the agents finally entered the house, they
discovered a glass measuring dish with cocaine base
residue on it. They also found typical tools of the cocaine
and crack trafficking trade in the house, including
small plastic bags, scales, and latex gloves.
Both Johnson and Lamb were indicted. Johnson was
charged with distributing cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A), and with being a felon
in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Lamb was charged with obstruction of
justice in violation of 18 U.S.C. § 1512(c)(1). Both were
also charged with a conspiracy to distribute cocaine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846,
but the government dropped that count against Lamb
on the eve of trial.1

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Nos. 10-1762 & 10-2230 5
(...continued) 1
them with little choice but to abandon the conspiracy charges
and proceed solely on obstruction charges.
Before trial, Johnson moved to suppress the evidence
recovered from the Westmoreland residence, arguing
that the search warrant was not supported by probable
cause. The district court denied the motion. The sixteen-
page affidavit in support of the application detailed
an extensive investigation that supported a finding of
probable cause. Lamb moved to sever her case from
Johnson’s, but the district court denied the motion.
Lamb was still charged as a co-conspirator at the time,
and she did not renew her motion once that conspiracy
charge had been dropped.
During opening statement, the prosecutor initially
overstated the quantity of cocaine the government had
found. Rather than the 375 grams recovered from pur-
chases on the day of the arrest, the prosecutor referred
to 5 kilograms. The misstatement was corrected immedi-
ately, and no evidence was presented that the govern-
ment had discovered so much cocaine. Johnson unsuc-
cessfully moved for a mistrial. Johnson’s main associate
testified about an extensive cocaine distribution conspir-
acy. Others who had purchased cocaine from Johnson
testified, including the informant who had made a con-
trolled purchase on the day of Johnson’s arrest. Federal
agents told the jury about the investigation and John-
son’s confessions.
Against Lamb, the agents testified about her actions
when they tried to search the Westmoreland residence.

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6 Nos. 10-1762 & 10-2230
The jury also heard from an associate of Johnson that
Lamb had often been present when Johnson picked up
and sold cocaine.
The jury convicted Johnson and Lamb of all charges.
The district court sentenced Johnson to concurrent sen-
tences of life imprisonment for the conspiracy convic-
tion, 360 months for the distribution conviction, and
120 months for the felon-in-possession conviction. It also
ordered Johnson to pay a $2.25 million fine. At Lamb’s
sentencing, the district court found that the conduct
relevant to her obstruction-of-justice conviction in-
cluded 11 kilograms of cocaine (far short of the total
amount attributed to Johnson) and 122 milligrams of
cocaine base. The court sentenced her to 78 months’
imprisonment and 3 years’ supervised release. Both
Johnson and Lamb filed timely notices of appeal, and
their cases were consolidated.
II.
Although their cases have been consolidated, none of
the issues they pursue on appeal overlaps. Therefore, we
address each defendant’s arguments separately.
A. Scott Johnson’s Appeal
1. Suppression of Evidence
Johnson first argues that the search warrants executed
on the day of his arrest were fatally flawed and that the
district court erred in denying his motion to suppress the

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Nos. 10-1762 & 10-2230 7
evidence. When reviewing the denial of a motion to sup-
press, we give deference to the issuing judge’s
finding of probable cause, but review de novo the
district court’s legal conclusion that the warrant was
supported by probable cause. United States v. Bell, 585
F.3d 1045, 1049 (7th Cir. 2009).
As an initial matter, we note that while Johnson’s
appeal attacks the bases for any and all of the search war-
rants issued in this case, his pretrial motion to sup-
press specifically addressed only the warrant for
the search of the Westmoreland residence. When a de-
fendant fails to move to suppress evidence before trial,
he waives his objection to the evidence under Federal
Rule of Criminal Procedure 12(e); such waived argu-
ments are not subject to appellate review unless the
district court first grants relief from the waiver for good
cause. United States v. Acox, 595 F.3d 729, 730 (7th Cir.
2010). Therefore, we entertain only Johnson’s challenge
to the search warrant for the Westmoreland residence.
Johnson argues that there was insufficient evidence
to support the magistrate judge’s finding of probable
cause because the affidavit accompanying the warrant
application relied on insufficiently corroborated infor-
mants. Where, as here, the issuing judge considered only
the supporting affidavit when deciding whether to issue
a search warrant, “the warrant must stand or fall solely
on the contents of the affidavit.” United States v. Koerth,
312 F.3d 862, 866 (7th Cir. 2002). And when an affidavit
relies on information supplied by an informant, the
issuing judge must consider whether the information is

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8 Nos. 10-1762 & 10-2230
reliable. The judge must look at a variety of factors,
including the degree to which police have corroborated
the information, whether and to what extent the infor-
mation is based on the informant’s own observations, how
much detail the informant provides, how much time
elapsed between the events reported and the warrant
application, and whether the informant personally ap-
peared before the warrant-issuing judge. United States
v. Dismuke, 593 F.3d 582, 586-87 (7th Cir. 2010). We take
into account these and any other pertinent factors as a
whole, and no one factor necessarily dooms a search
warrant. Bell, 585 F.3d at 1049.
The affidavit accompanying the warrant application
contained information from four confidential inform-
ants tying Johnson to cocaine dealing at various loca-
tions over the course of two years. While that might be
enough for an arrest warrant, a search warrant for the
Westmoreland residence, however, required more than
general evidence of Johnson’s cocaine dealing: the
affidavit needed to allow the issuing judge to deter-
mine that there was probable cause that evidence of
that cocaine dealing would be found at the Westmoreland
residence. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
We agree with the district court that the informa-
tion from the fourth confidential informant alone was
sufficient to support probable cause for the search war-
rant. Specifically, this informant told the government
that he had purchased multi-ounce quantities of cocaine
from Johnson four times in the preceding week, all
from the Westmoreland residence, and made a controlled

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Nos. 10-1762 & 10-2230 9
purchase on the same day as the warrant application.
And this informant was previously known to the gov-
ernment and had provided reliable information in the
past. See United States v. Sidwell, 440 F.3d 865, 869 (7th
Cir. 2006) (citing as persuasive “the fact that the inform-
ant had completed numerous other controlled buys in
the past and provided, on those occasions, accurate and
reliable information”). Moreover, his own observations
were corroborated by direct surveillance by federal
agents. See Dismuke, 593 F.3d at 587. Finally, the strongest
bit of evidence supporting the warrant—the informant’s
supervised, controlled purchase from Johnson, at the
residence—took place mere hours before the warrant
was requested and issued. See id.
All of this was enough for the issuing judge to
conclude that the fourth informant’s statements were
reliable. See id. And those statements were more than
adequate to provide the magistrate judge with “sufficient
evidence to induce a reasonably prudent person to
believe that a search [would] uncover evidence of a
crime.” United States v. Lowe, 516 F.3d 580, 585 (7th Cir.
2008). Thus, the district court properly denied Johnson’s
motion to suppress the evidence recovered from the
Westmoreland residence.
2. Special Credibility Instruction
Johnson next argues that the district court erred by
failing to instruct the jury that two of the witnesses
against Johnson had received benefits from the govern-
ment because they had not been charged with possession

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10 Nos. 10-1762 & 10-2230
of cocaine in exchange for their testimony and were
hoping that by testifying they would not be charged. The
district court is in the best position to assess the risk of
unreliable testimony, and therefore we leave the de-
cision regarding credibility instructions to the district
court’s discretion. United States v. Tavarez, 626 F.3d 902,
904 (7th Cir. 2010). It is well established in this circuit
that general credibility instructions highlighting the
possibility of bias are generally adequate, and thus that
special credibility instructions are not required as a
matter of course. United States v. Cook, 102 F.3d 249, 251-52
(7th Cir. 1996). While we have never ruled out the pos-
sibility that some circumstances may demand special
credibility instructions, we addressed, and rejected,
arguments very similar to Johnson’s in United States v.
Jordan, 223 F.3d 676, 692 (7th Cir. 2000), and Cook, 102
F.3d at 251-52. Absent any special factors distinguishing
this case, we have no reason to revisit the issue here.
3. Misstatement of Drug Quantity
Johnson’s final argument is that in its opening state-
ment, the prosecutor erroneously claimed that over five
kilograms of cocaine were recovered from searches of
Johnson’s property when in fact the amount was less
than one half-kilogram. Johnson claims that this planted
a false impression in the jurors’ minds that persisted
throughout the trial to Johnson’s prejudice. Therefore,
Johnson argues, the district court erred in denying his
timely motion for a mistrial. We review the denial of a
motion for a mistrial for an abuse of discretion, because

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Nos. 10-1762 & 10-2230 11
Cf. United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) 2
(holding that isolated, accidental misstatements of testimony
during closing arguments did not establish impropriety suffi-
cient for prosecutorial misconduct).
the district court is in a superior position to judge the
“seriousness of the incident in question, particularly as
it relates to what has transpired in the course of the trial.”
United States v. Lauderdale, 571 F.3d 657, 660 (7th Cir. 2009).
To win a new trial based on a prosecutor’s improper
comments, a defendant must establish that the prosecuto-
rial misconduct deprived him of his right to a fair trial.
United States v. Myers, 569 F.3d 794, 798 (7th Cir. 2009).
This means that Johnson must establish both that the
prosecutor’s misstatement was improper and that it
prejudiced him by “so infect[ing] the trial with unfairness
as to make the resulting conviction a denial of due pro-
cess.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The
district court, which was in the best position to judge,
found that the overstatement was a mistake and a
minor issue. Leaving aside whether such an “isolated,
accidental” comment as this can ever satisfy the first
prong, Johnson cannot establish the requisite prejudice.2
The misstatement was made only once during opening
statement, and the prosecutor immediately corrected
the statement in his next breath and made no further
reference to the five kilograms. Johnson’s counsel had
ample opportunity to address the misstatement in his
own opening or closing presentations. And whatever
impression the misstatement left on the jury, the gov-

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12 Nos. 10-1762 & 10-2230
ernment never put forward any evidence that five kilo-
grams had been discovered during searches. We do not
assume that such a discrepancy prejudices a defendant—
it could just as easily harm the government’s case. See
United States v. Akin, 562 F.2d 459, 466 (7th Cir.
1977) (reasoning that when opening statement is not sub-
stantiated at trial “the Government rather than de-
fendant was hurt by [the] failure of proof”). In light of
the overall insignificance of the prosecutor’s comments
in its opening statement, as well as the substantial evi-
dence against Johnson—including his own confession
that he had received and sold more than five kilograms
the night before—we hold that the district court did not
abuse its discretion in refusing to grant a mistrial.
B. Lisa Lamb’s Appeal
Lamb appeals both her conviction and sentence. The
challenge to her conviction presents a closer question.
We do not doubt that the jury reasonably concluded
that Lamb did destroy evidence of her and Johnson’s
criminal conduct when confronted by federal agents
with a search warrant for the Westmoreland residence.
There is also little doubt that this conduct likely violated
other statutes more precisely targeting the obstruction
of federal investigations and search warrants. See, e.g., 18
U.S.C. § 1519 (obstructing a federal agency’s investiga-
tion); and § 2232 (destruction or removal of property to
prevent seizure). The more interesting, and difficult,
question is whether that conduct also violated the
statute with which she was charged, to wit: “cor-

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Nos. 10-1762 & 10-2230 13
Lamb also argues that the substantial evidence of her in- 3
volvement with Johnson’s cocaine dealing either construc-
tively amended or fatally varied from her indictment for
destroying a small quantity of cocaine base. But we conclude
below that Lamb’s involvement with and knowledge of John-
son’s cocaine dealing was crucial to her conviction under
§ 1512(c)(1), so the government’s evidence was entirely appro-
priate. The cases she cites for constructive amendment and
fatal variance are inapposite.
ruptly—alter[ing], destroy[ing], mutilat[ing], or con-
ceal[ing] a record, document, or other object, or
attempt[ing] to do so, with the intent to impair the
object’s integrity or availability for use in an official
proceeding.” 18 U.S.C. § 1512(c)(1). Lamb attacks her
conviction on two fronts—the proper reach of 18 U.S.C.
§ 1512(c)(1) and the sufficiency of the evidence even
under the government’s interpretation. We review each
of Lamb’s challenges in turn.3
1. Scope of 18 U.S.C. § 1512(c)(1)
Lamb’s primary contention is that she was mischarged
under a statute that does not apply to the conduct
alleged or proved, and thus that her conviction must be
thrown out. This argument is purely legal. The provision
in question, 18 U.S.C. § 1512(c)(1), was added to the
statute as part of the Sarbanes-Oxley Act of 2002, Pub. L.
No. 107-204, § 1102. Lamb claims that the law is confined
to the destruction of documents and other records in the
context of white-collar corporate fraud and does not

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14 Nos. 10-1762 & 10-2230
extend to the destruction of drug contraband in antic-
ipation of discovery by the authorities. Put differently,
is the government overreaching by using a statute tar-
geting white-collar crime to punish ordinary criminal
conduct not envisioned by Congress when it passed the
statute?
Section 1512(c)(1) applies to the destruction of any
“record, document, or other object.” Lamb argues that we
should not interpret “other object” to include any and
every object imaginable, but solely those objects similar
to records or documents. This follows from an applica-
tion of the principle of statutory construction often
known by its Latin descriptor ejusdem generis—literally
translated “of the same kind.” According to it, “[w]here
general words follow specific words in a statutory enum-
eration, the general words are construed to embrace
only objects similar in nature to those objects enumer-
ated by the preceding specific words.” Circuit City Stores,
Inc. v. Adams, 532 U.S. 105, 114-15 (2001). Applied to
this case, it would mean that only an “other object” that
is similar in nature to records or documents would fall
within § 1512(c)(1)’s scope.
Lamb argues that this interpretation is bolstered by
the fact that Congress added § 1512(c)(1) in 2002 with
Sarbanes-Oxley and meant to address the problem of
white-collar financial crimes. The proof of such crimes
often depends significantly on information contained in
records and documents, which may be easy to shred or
otherwise destroy in anticipation of an investigation.
Therefore, it makes sense that Congress would specifically

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Nos. 10-1762 & 10-2230 15
single out records and documents for special protec-
tion. Thus, according to Lamb, the purpose of the statute
confirms that “record, document, or other object” must
be limited to items similar to records or documents that
would evince the white-collar crimes that Congress
targeted with Sarbanes-Oxley.
While it is not entirely unpersuasive, two principal
defects ultimately doom Lamb’s argument. First, Lamb’s
characterization of § 1512(c)(1) as limited to the narrow,
white-collar context that prompted Sarbanes-Oxley
does not square with the broader history of § 1512 and
the statutory phrase at issue. When § 1512 was first
enacted in 1982, it was not limited to the white-collar
crime context. Rather, it was a general statute addressing
witness tampering and intimidation. It criminalized any
use of intimidation or physical force (or its threat), “to
cause or induce any person to withhold testimony, or
withhold a record, document, or other object from an
official proceeding [or] alter, destroy, mutilate, or conceal
an object with intent to impair the object’s integrity or
availability for use in an official proceeding.” Pub. L. 97-
291, § 4 (codified at 18 U.S.C. § 1512(a)(2)). The statute
has been modified numerous times since then, but has
always continued to prohibit intimidating or “corruptly
persuad[ing]” a witness to “withhold . . . a record, docu-
ment, or other object” or to “alter, destroy, mutilate, or
conceal” such an object. 18 U.S.C. § 1512(a)(2)(B), (b)(2)(A),
& (b)(2)(B).
These other provisions were enacted well before
Sarbanes-Oxley and there is no indication that Congress
intended to limit their use to the white-collar context.

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16 Nos. 10-1762 & 10-2230
The vast majority of prosecutions under § 1512 appear
to have involved tampering with witnesses’ testimony,
and that aspect of the statute clearly applies in any crimi-
nal context. See, e.g. United States v. Murphy, 406 F.3d 857,
860 (7th Cir. 2005) (conviction under § 1512(a)(2)(A) for
using physical force against a witness with intent to
prevent testimony in crack cocaine case). And where
§ 1512 has been used to prosecute efforts to encourage
others to withhold or destroy evidence, courts have had
no hesitation in reading “other object” broadly. See, e.g.,
United States v. England, 555 F.3d 616 (7th Cir. 2009)
(hiding car); United States v. Applewhaite, 195 F.3d 679 (3d
Cir. 1999) (painting over blood splattered on stone wall).
While § 1512(c)(1), in particular, was added to the
statute in 2002 by Sarbanes-Oxley, the phrase “record,
document, or other object” was taken directly from the
original statutory text. The repetition of the same
language tells us nothing of what Congress intended,
or did, in 2002. Given the history of § 1512, it is not sur-
prising that this and a number of other courts have
applied the same language in § 1512(c)(1) just as
broadly, reaching the destruction of evidence other
than records or documents and outside the white-collar
context—including contraband. In United States v.
Matthews, we upheld the conviction of a police chief
who destroyed a firearm that was to be used as evidence
in a case against his friend who was charged as a felon
in possession of a firearm. 505 F.3d 698, 704 (7th Cir.
2007). And Lamb’s own brief confirms that Matthews is
not an outlier: ten out of the twenty-seven prosecutions
under § 1512(c)(1) across the country that she cites in her

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Nos. 10-1762 & 10-2230 17
Two relevant cases decided since the parties submitted their 4
briefs split evenly: compare United States v. Moss, 2011 WL
2118940 (E.D. La. May 24, 2011) (destroying a van) with United
States v. Stevens, 771 F.Supp. 2d 556 (D. Md. 2011) (documents).
brief—just over thirty seven percent—have involved an
“other object” that would not meet Lamb’s limited
reading. See, e.g., United States v. Ortiz, 220 Fed. Appx.4
13, 17 (2d Cir. 2007) (car); United States v. Thompson, 237
Fed. Appx. 575, 576 (11th Cir. 2007) (gun, money, and
crack cocaine). While it is true that Matthews (nor,
for that matter, any court to our knowledge) was pre-
sented with the same argument that Lamb makes, the
uncontroverted impression of several courts cuts
against her attempt to narrow the statute.
Second, ejusdem generis is “no more than an aid to
construction and comes into play only when there is
some uncertainty as to the meaning of a particular clause
in a statute.” United States v. Turkette, 452 U.S. 576, 581
(1981). Because the statutory text is clear, we have no
need of recourse to ejusdem generis. And even assuming,
arguendo, that the meaning of “other object” is somehow
unclear, application of ejusdem generis does not par-
ticularly aid the statutory construction. In this case, the
“specific” preceding terms “record” and “document”
are nearly as general as “other object.” Lamb points to
corporate files, papers, diskettes, a computer hard drive,
or any other object used to document or memorialize
some other events as an example of an “other object”
within the reach of her interpretation of § 1512(c)(1). But

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18 Nos. 10-1762 & 10-2230
a reasonable interpretation of “record” and “document”
might include all these examples, leaving “other object”
void of meaning in Lamb’s interpretation and thereby
violating another principle of construction. See Duncan
v. Walker, 533 U.S. 167, 174 (2001). Rather than clarify
an ambiguous statute, application of ejusdem generis
would thus confuse the clear meaning of the text.
For these reasons, we hold that § 1512(c)(1) criminalizes
the alteration, destruction, mutilation, or concealment of
any object, including contraband.
2. Forseeability of an Official Proceeding
Conviction under § 1512(c)(1) also required proof that
Lamb destroyed the evidence “with the intent to impair
the object’s integrity or availability for use in an official
proceeding.” Interpreting this provision in Arthur Ander-
sen v. United States, 544 U.S. 696, 707-08 (2005), which
involved document shredding, the Court admonished
that it is “one thing to say that a proceeding ‘need not
be pending or about to be instituted at the time of the
offense,’ and quite another to say a proceeding need not
even be foreseen.” Lamb argues that her conviction
cannot stand because there was insufficient evidence to
prove that she believed her actions would affect a fore-
seeable official proceeding. And failing that, she argues
that her conviction should be vacated (presumably for
a new trial) because the jury was not adequately in-
structed that Lamb had to have foreseen an official pro-
ceeding to act corruptly under the statute.

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Nos. 10-1762 & 10-2230 19
We consider first the question of the jury instructions.
Because Lamb did not object to the jury instructions or
request the specific Forseeability instruction she now
urges, we review the instructions only for plain error.
United States v. Ye, 588 F.3d 411, 414 (7th Cir. 2009). Lamb
argues that she was entitled to an “explicit Forseeability
instruction.” She apparently leaves it to us to fashion the
appropriate instruction, as she did not request such an
instruction below and does not propose any specific
language now. The district court in this case gave a
Forseeability instruction. Specifically, it instructed the
jury that to convict on the obstruction of justice charge,
it must find that Lamb “attempted to destroy or conceal
an object” and “acted with the intent to impair the
object’s availability for use in an official proceeding.” It
also specified that this “official proceeding” was “the
federal grand jury or a proceeding in the United States
District Court for the Southern District of Illinois,” but
“need[ed] not be pending or about to be instituted at the
time of the offense.” We approved virtually identical
jury instructions in Matthews, 505 F.3d at 704-05. Here,
just as in Matthews, the instructions clearly informed the
jury that it could only convict Lamb if it found that
she attempted to destroy or conceal the crack cocaine
with the intent to prevent its use in a federal grand
jury or criminal proceeding in the District Court for the
Southern District of Illinois. See id. at 708. Thus, the jury
could not have convicted Lamb unless it found that she
foresaw such a proceeding. The instructions adequately
conveyed § 1512(c) (1)’s nexus requirement; there was
no error.

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20 Nos. 10-1762 & 10-2230
Next, we turn to the sufficiency of the evidence. We
review de novo challenges to the sufficiency of the evi-
dence, viewing “the evidence in the light most favorable
to the verdict and will reverse only if no rational trier
or fact could have found [the defendant] guilty of
the charges beyond a reasonable doubt.” United States v.
Williams, 553 F.3d 1073, 1080 (7th Cir. 2009) (quoting United
States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007)). Lamb
argues that if we sustain her conviction, we endorse the
idea that mere knowledge of a criminal investigation is
enough to trigger § 1512(c)(1) and she insists that this
cannot be what Congress intended because it has
enacted separate statutes that more precisely address
the conduct at issue here. Section 1519, for example,
criminalizes the obstruction of a federal investigation,
and § 2232 criminalizes the destruction or removal of
property to prevent its lawful seizure. She asserts that
such an extension of § 1512(c)(1) would drag in all sorts
of run-of-the-mill “obstructive” conduct—from tossing
drugs or money out of a car window during pursuit by
the police to flushing evidence down the toilet at the
first sign of a police investigation.
Lamb’s argument appears to invoke the rule of lenity,
where criminal statutes must be construed narrowly.
But we cannot accept this argument. Lamb would have
us read the statute more narrowly than its plain terms
suggest and the rule of lenity does not require this. See
United States v. LaFaive, 618 F.3d 613, 618 (7th Cir. 2010)
(declining to apply rule of lenity where statute was unam-
biguous). Further, there is no suggestion that Congress
could not include even the most mundane destruction
of evidence. Clearly, such obstructive conduct is illegal

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Nos. 10-1762 & 10-2230 21
under other statutes. Nor is there any rule that two
statutes cannot overlap, even significantly. The fact
that Lamb’s conduct would also violate statutes more
tailored to her specific actions does not mean that it does
not also violate the more general provisions of § 1512(c)(1).
Moreover, it cannot be that the government needed to
prove that Lamb knew that her conduct would affect a
particular official proceeding: § 1512(f)(1) instructs us
that “[f]or purposes of this section an official proceeding
need not be pending or about to be instituted at the time
of the offense.” It simply needed to provide enough
evidence that Lamb foresaw that the contraband might
be used in an official proceeding and destroyed it with
the intent of preventing that use. But why else would
Lamb aggressively destroy contraband while authorities
were attempting to exercise a search warrant, other than
to prevent the discovery of that evidence? And why
would she want to prevent that discovery, if not to mini-
mize or eliminate the evidence that could be used
against her in a criminal prosecution?
There was evidence that Lamb was aware of, and per-
haps deeply involved with, Johnson’s cocaine dealing.
Given her level of involvement, it was not unreasonable
for a jury to assume that Lamb was aware of how much
difference the type and quantity of the drugs discovered
could make, and that she destroyed the cocaine base
with the intent to minimize the evidence against her
and Johnson at their eventual criminal prosecution. And
this is not a case of a suspect panicking and tossing contra-
band out the window of a fleeing vehicle. Rather, when
threatened with a search warrant, Lamb slammed closed

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22 Nos. 10-1762 & 10-2230
We need not decide whether knowledge of any investiga- 5
tion is sufficient for a conviction under § 1512(c)(1), or even
(continued...)
the metal door, then while the police were attempting
to force their way into the house, she spent over
20 minutes deliberately eradicating evidence of her and
Johnson’s criminal activity.
Possibly at first Lamb did not believe that the people
at the door were really police. But the ensuing activity
of federal agents as well as local police and firefighters
should have convinced her otherwise. This was enough
evidence for the jury to conclude that Lamb foresaw
criminal prosecution and used the last few minutes
before they gained entry to minimize the evidence
against her and Johnson.
The evidence may not have been overwhelming. But
that is often the case when attempting to prove what
was in a defendant’s mind. The jury could have believed,
as Lamb urged, that she acted out of panic or because
she believed the cops were crooked and out to steal the
drugs. The jury was not required, however, to accept
Lamb’s version of events. Given Lamb’s knowledge of
Johnson’s cocaine dealing and the quantities involved,
the jury could reasonably believe that Lamb foresaw
that any contraband discovered in the search would be
used against her and Johnson in official proceedings.
Therefore, the jury could reasonably conclude that she
foresaw proceedings in the federal grand jury or the
District Court for the Southern District of Illinois, and
destroyed cocaine base to prevent that use.5

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Nos. 10-1762 & 10-2230 23
(...continued) 5
whether a person who destroys evidence when confronted
with a search warrant always violates the statute. It is enough
to conclude that under the facts in this case, the jury could
conclude that Lamb foresaw a grand jury or criminal pro-
ceedings when she destroyed the contraband.
3. Relevant Sentencing Conduct
Finally, Lamb argues that the district court incorrectly
applied the accessory-after-the-fact cross-reference under
Federal Sentencing Guideline § 2X3.1. We review the
calculation of the sentencing guidelines range de novo,
but the district court’s underlying findings of fact only
for clear error. United States v. Quintero, 618 F.3d 746,
755 (7th Cir. 2010). There is no question that § 2X3.1
applies here. Section 2J1.2, the guideline applicable to
§ 1512(c)(1), clearly instructs district courts that “[i]f the
offense involved obstructing the investigation or pros-
ecution of a criminal offense, apply § 2X3.1 in respect to
that criminal offense.” Rather, Lamb’s contention is that
the “underlying offense” for purposes of the § 2X3.1 cross-
reference should have been possession of cocaine base
rather than Johnson’s cocaine distribution conspiracy.
But given the evidence that Lamb was aware of and
involved with Johnson’s cocaine distribution, the district
court did not clearly err in finding by a preponderance
of the evidence that Lamb destroyed evidence at the
Westmoreland residence to obstruct the investigation
and prosecution of the broader conspiracy, not merely
her own possession. Based on that finding, the district
court correctly applied the guidelines using the con-

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24 Nos. 10-1762 & 10-2230
spiracy as the underlying criminal offense that Lamb
sought to impede.
III.
For the reasons above, we find no merit in Johnson’s
arguments on appeal: the search warrant for the West-
moreland residence was valid and the district
court did not abuse its discretion in refusing John-
son’s requested special credibility instructions or
denying the motion for mistrial. His conviction is there-
fore AFFIRMED. We also cannot accept Lamb’s argu-
ments limiting the scope of 18 U.S.C. § 1512(c)(1). The
statute covers contraband in drug cases as well as
records in corporate fraud cases, and her knowledge of
a government investigation is sufficient to sustain
the jury’s conclusion that Lamb foresaw an official pro-
ceeding when she destroyed evidence. Further, the
district court properly counted drugs from the con-
spiracy against her at sentencing. Her conviction
and sentence are therefore AFFIRMED.
8-11-11

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