In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2041

United States of America,

Plaintiff-Appellee,

v.


Rodriguez D. Jones,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 00-CR-30070 Jeanne E. Scott, Judge.

Argued November 30, 2001--Decided December 28, 2001



  Before Flaum, Chief Judge, and Cudahy and
Manion, Circuit Judges.

  Flaum, Chief Judge. A jury convicted
Rodriguez Jones of conspiring to
distribute crack cocaine. Jones appeals,
arguing that the government failed to
prove a conspiracy for the time period
alleged in the indictment, and that the
district court erred in denying a motion
to suppress evidence. For the reasons
stated herein, we affirm.

I.   Background

  Jones was a Chicago resident and a
member of the Gangster Disciples street
gang. In January 1999, Jones asked Huey
Whitley if he would join him in selling
crack cocaine in Springfield, Illinois,
where a better opportunity existed to
deal crack. Whitley agreed, and the two
relocated to Springfield. On numerous
occasions, Jones and Whitley traveled to
Chicago, where they purchased crack
cocaine, transported it back to
Springfield, and distributed it for sale.
Jones and Whitley decided that their
venture was worthy of expansion, and they
began pooling money with two other
individuals, Casey Jones and McCall
Cleveland. Jones and Whitley took the
pooled funds to Chicago, where they
obtained crack cocaine. Upon return to
Springfield, Jones divided the crack
among himself, Whitley, Cleveland and
Casey Jones.

  In March 1999, law enforcement officers
began investigating Jones and his
cohorts. During that month, Springfield
police officers searched the trash of the
residence where the four individuals
conducted their drug dealing business.
This search revealed various drug
distribution paraphernalia, including 62
plastic bags, some of which contained
cocaine residue. Several days later,
officers stopped Jones for a traffic
violation. A search of the automobile
produced a loaded .22 caliber pistol. The
officers arrested Jones and subsequently
performed a search incident to the
arrest, which revealed approximately
$7,000 in cash stashed in Jones’s shoe.

  Despite his encounter with authorities,
and possibly as a result of a personal
conflict with Whitley, Jones decided to
recruit additional help to continue his
business. He contacted Gabriel Folks,
Jonathan Norris and Denver Wheeler and
asked them to sell crack cocaine in
Springfield. Once there, the four men
adhered to Jones’s earlier practices,
traveling to Chicago to purchase crack
and returning to Springfield to sell it.
Unfortunately for Jones, law enforcement
authorities adhered to their earlier
practices as well, searching trash bags
retrieved from a residence where drug
dealing activity occurred and
subsequently executing a search warrant
on the residence. This time, officers
seized a loaded revolver, approximately
80 grams of crack cocaine, a digital
scale, several varieties of plastic bags,
and various documents containing Jones’s
name. Officers immediately arrested Folks
and Norris who were in the house during
the search, and Norris agreed to
cooperate with the government.
  In October 1999, Jones began a
relationship with Tonya Gephardt, who had
previously dated Charles Cleveland.
During her relationship with Cleveland,
Gephardt had met Jones and also had
witnessed the sale of crack cocaine. From
October 1999 through January 2000,
Gephardt and Jones traveled to Chicago
once or twice per week to purchase crack
cocaine for distribution in Springfield.
On return trips to Springfield, Jones
asked Gephardt to conceal the crack
cocaine in her vagina, and Gephardt
complied with this request. Gephardt also
accompanied Jones when he sold crack
throughout Springfield.

  Although his initial partners had been
arrested, Jones continued dealing until
December 10, 1999. On that day, FBI
Special Agent Steve Bennet was conducting
surveillance when he observed Jones run a
stop sign and turn without signaling.
Springfield police officers then stopped
Jones’s car, determined that he did not
have proper proof of insurance and issued
several citations for the traffic
violations. Officers also requested a
certified canine unit, which arrived on
the scene within approximately 13
minutes. When the canine unit arrived,
officers noticed that Jones had curbed
his car near several puddles, which would
impede the dog’s movement around the car.
Rather than force the dog to traipse
through puddles, a member of the
Springfield Police Department entered
Jones’s automobile and moved it forward
approximately five feet. The drug-
sniffing dog then cased the exterior of
the vehicle and alerted officers to the
presence of narcotics. A search of this
particular area of the car revealed a
small amount of marijuana. Officers
arrested Jones and conducted a search
incident to the arrest, finding
approximately $3,000 in Jones’s shoe.

  A grand jury indicted Jones on September
8, 2000, and charged him with conspiracy
to distribute crack cocaine. The
indictment alleged that the conspiracy
continued until at least January 2000.
Jones moved to suppress evidence related
to the December 10 traffic stop, arguing
that the officer illegally searched
Jones’s vehicle when he moved it to
accommodate the canine unit. Following a
hearing, the district court denied the
motion, acknowledging that the entry into
the vehicle was most likely improper, but
stating that the search produced no
evidence. Only after the drug-sniffing
dog produced probable cause did officers
search Jones’s vehicle.

  At trial, the government presented
testimony from several witnesses who had
participated in the conspiracy, including
Wheeler, Norris, Whitley and Gephardt.
Jones moved to strike Gephardt’s
testimony in its entirety, maintaining
that the events she described necessarily
occurred after the termination of the
conspiracy because all of the co-
conspirators were incarcerated or
cooperating with the government by June
1999. Jones argued that the government
introduced Gephardt’s testimony to extend
the length of the conspiracy, thus
allowing the prosecution to admit
theevidence from the December 10 traffic
stop. The district court denied Jones’s
motion to strike. The jury returned a
guilty verdict, and Jones appeals.

II.   Discussion

  Jones raises two issues on appeal.
First, he claims that the government
failed to prove a single conspiracy that
lasted beyond June 1999. If the
conspiracy ended in June 1999, Jones
reasons, then admitting Gephardt’s
testimony was so prejudicial as to
warrant a new trial. Second, Jones
contends that the trial court improperly
denied his motion to suppress evidence
stemming from the December 10 traffic
stop. We address each issue below.


  A. Alleged Variance Between Indictment
and Proof at Trial

  Jones first argues that the government
never established beyond a reasonable
doubt that Jones was a member of a
conspiracy to distribute crack cocaine
for the entire period alleged in the
indictment, that is, until January 2000.
According to Jones, two prejudicial
consequences flow from this expansion of
the length of the conspiracy: (1) it
allowed the government to introduce
Gephardt’s testimony, which should have
been treated as a wholly separate
conspiracy; and (2) it enabled the
government to introduce the evidence
obtained during the December 10, 1999
traffic stop.

  Generally, a defendant claiming a
variance between the indictment and the
proof at trial "will succeed in obtaining
reversal of his conviction only if he
establishes that (1) the evidence
presented at trial was insufficient to
support the jury’s finding of a single
conspiracy, and (2) he was prejudiced by
the variance." United States v. Mojica,
185 F.3d 780, 786 (7th Cir. 1999)
(quoting United States v. Curtis, 37 F.3d
301, 305 (7th Cir. 1994)). We are unable
to agree that the government failed to
introduce evidence supporting a single
conspiracy. Moreover, even if Jones did
engage in two separate conspiracies--
which he did not--any alleged error was
harmless given the overwhelming evidence
against him.

  Initially, the government provided
sufficient evidence to prove a single
conspiracy. In defining a conspiracy,
this Court looks to "the nature of the
agreement." United States v. Marhsall,
985 F.2d 901, 907 (7th Cir. 1993). So
long as the evidence demonstrates that
the co-conspirators embraced a common
criminal objective, a single conspiracy
exists, even if the parties do not know
one or another and do not participate in
every aspect of the scheme. See United
States v. Magana, 118 F.3d 1173, 1186
(7th Cir. 1997) (citing United States v.
Briscoe, 896 F.2d 1476, 1507 (7th Cir.
1990)). In contrast, multiple
conspiracies exist when there are
separate agreements that effectuate
distinct purposes. United States v.
Thornton, 197 F.3d 241, 254 (7th Cir.
1999).

  In this case, there was ample evidence
to support the jury’s finding of a single
conspiracy. Jones does not dispute the
fact that the government provided
sufficient evidence to prove a conspiracy
for the period ending in May 1999. In
fact, in his brief, Jones states that
"the evidence adduced at trial, viewed in
the light most favorable to the
government, established that the
defendant participated in a conspiracy to
distribute cocaine through May 1999."
However, according to Jones, the only
evidence of a conspiracy from June 1999
through January 2000 derives from Tonya
Gephardt’s testimony, which the district
court improperly admitted over Jones’s
objection. Jones notes that by June 1999
Jonathan Norris, Denver Wheeler and
Gabriel Folks either were incarcerated or
had agreed to cooperate with the
government. As a result, Jones claims
that all of his co-conspirators
necessarily withdrew from the conspiracy
by the end of 1999.

  Jones bases his assertion on the
incorrect premise that Norris, Wheeler
and Folks were the only co-conspirators
involved in Jones’s scheme. The
indictment against Jones specified only
that he conspired with "others" to
distribute crack cocaine, which certainly
does not mean that the conspiracy could
not involve individuals other than
Norris, Wheeler and Folks. Indeed, the
evidence at trial proved that Huey
Whitley, Casey Jones and McCall Cleveland
participated in the conspiracy as well.
So, too, did Tonya Gephardt, who traveled
with Jones to Chicago, hid crack cocaine
in her vagina on the return trip, and
accompanied Jones while he sold crack in
Springfield.

  Faced with this testimony, Jones
contends that the government conceded
during sentencing that Tonya Gephardt was
not a member of the conspiracy. Jones
maintains that this concession
necessarily precludes a finding of
criminal activity beyond June 1999
because Gephardt provided the only
testimony regarding the conspiracy past
that time. This argument requires further
explanation. United States Sentencing
Guideline sec.3B1.1 enhances a sentence
when the conspiracy involved five or more
participants. At sentencing, the
prosecutor noted that the Probation
Office applied a four level enhancement
based upon sec.3B1.1 because the
conspiracy involved more than five
individuals. The prosecutor acknowledged
that the evidence at trial did not
necessarily establish that one
individual, Huey Whitley, was a member of
the conspiracy. Because Whitley was one
of the individuals counted in the
probation report, and because the
enhancement did not affect the sentencing
range, the prosecutor stated:

I know there was testimony at the trial
that [other individuals] were involved in
the offense, but there certainly wasn’t
as much detail with respect to their
particular role like Mr. Wheeler and Mr.
Folks and Mr. Norris. And while I think
it is certainly reasonable to come to
that four level enhancement, Your Honor,
given that we’re talking about a life
sentence here, my thought was that to be
as cautious as possible, two levels would
certainly be more than sound, and that’s
why I came to that conclusion.

Sent. Tr. At 8-9. This is hardly a
concession that Gephardt (or others) did
not participate in the conspiracy. While
the government never formally charged
Gephardt, she testified in some detail
that Jones continued his practice of
traveling to Chicago, purchasing crack,
and distributing it in Springfield. Thus,
the jury’s finding is not "insufficient
to support the jury’s finding of a single
conspiracy. Mojica, 185 F.3d at 786.

  While we hold that the evidence was
sufficient to prove a single conspiracy,
we also note that any alleged error in
this case was harmless. Jones’s
allegation that Gephardt’s testimony
prejudiced him does not withstand
scrutiny. Despite Gephardt’s testimony,
the jury considered the following:
testimony from Wheeler, Norris and
Whitley, recorded conversations between
Jones and Norris, evidence from two
traffic stops, and physical evidence
seized during the searches of residences
where Jones dealt drugs. In short, the
evidence against Jones during the period
between March 1999 and June 1999 was
overwhelming, and there can be no
question that Jones participated in a
conspiracy to deal crack cocaine. See
United States v. Monzon, 869 F.2d 338,
345 (7th Cir. 1989). As a result, Jones
cannot establish that he suffered any
prejudice from the alleged error. See
United States v. Noble, 754 F.2d 1324,
1330 (7th Cir. 1985).


  B.   Denial of Motion to Suppress

  Jones also argues that the district
court erred in denying his motion to
suppress evidence seized during the
December 10, 1999 traffic stop. Jones
maintains that the officer’s entry into
his vehicle was an illegal search, and
the district court should have suppressed
all evidence subsequently obtained. In
support of this proposition, Jones relies
exclusively on People v. Fulton, 683
N.E.2d 154 (Ill. App. Ct. 1997). In that
case, officers stopped the defendant for
a traffic violation and arrested him for
driving without a valid license and
without proof of insurance. The defendant
did not consent to a search of the
vehicle, but officers searched the
interior of the defendant’s car. After
that initial search, one officer entered
the vehicle, drove it to the police
station and noticed a clear plastic bag
protruding from the air vent. He removed
the vent and discovered a bag containing
cocaine. Id. at 156. In reversing the
trial court’s denial of defendant’s
motion to suppress, the Illinois
Appellate Court held that the officers
did not have a warrant, probable cause,
or the defendant’s consent to search the
car. Id. at 157. Moreover, the court
refused to accept the State’s "exigent
circumstances" argument, noting that the
record contained no evidence that the
location where the defendant curbed his
car was dangerous or illegal. Id.

  Beyond the limited precedential value of
Fulton before this Court, that case is
distinguishable from the present
circumstances in one critical respect.
The officers in this case had probable
cause to search the particular area of
the vehicle once the canine alerted
officers to the presence of narcotics.
See United States v. Ward, 144 F.3d 1024,
1031 (7th Cir. 1998) ("The DEA did not
intrude upon Ward’s privacy interest by
opening the bag until after the canine
had alerted to the bag, supplying
probable cause for the warrant which
authorized a search of the bag’s
contents."). Thus, unlike the search in
Fulton, the officers here clearly had
probable cause to search Jones’s vehicle
because the canine unit detected the
presence of marijuana. The initial
"search" (if it even was a search)
produced no evidence whatsoever. The
Fourth Amendment prohibits only those
searches that are unreasonable. Illinois
v. Rodriguez, 497 U.S. 177, 183 (1990).
While it is true that the district court
noted that the officer’s entry into
Jones’s vehicle was "improper," that is
not the search that this Court must exam
ine for reasonableness. Instead, we must
focus on the limited search that occurred
after the canine unit provided probable
cause. As discussed above, that search
was entirely reasonable under the Fourth
Amendment.

III.   Conclusion

  Jones suffered no prejudice from alleged
variances between the indictment and the
proof at trial, and the district court
acted properly in denying his motion to
suppress evidence. For the foregoing
reasons, we AFFIRM the decision of the
district court.
