                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-4026

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

D AVID W. H ARRIS,
                                          Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
         No. 06-CR-164-RTR-1—Rudolph T. Randa, Judge.



   A RGUED S EPTEMBER 9, 2009—D ECIDED O CTOBER 30, 2009



 Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.
  F LAUM, Circuit Judge. David Harris appeals his con-
viction for possession of cocaine with intent to distrib-
ute. Harris challenges the district court’s decision to
admit testimony against him under Fed. R. Evid.
801(d)(2)(E). He then argues that the principal witness
for the prosecution was not credible; that the evidence
appropriately presented at trial only established his
proximity to the drugs, not his actual possession of them;
and that said evidence was therefore insufficient to
sustain a conviction.
 For the following reasons, we affirm the conviction.
2                                              No. 08-4026

                     I. Background
   Marc Cannon and Corey Anderson have worked
together as drug dealers in Milwaukee, Wisconsin, for
fifteen years. During the tail end of this period, Anderson
also worked as a confidential informant (CI) for the
Milwaukee police. David Harris, the defendant-appellant,
is Marc Cannon’s cousin. Harris was arrested and con-
victed of cocaine possession after Milwaukee police
discovered a kilogram of cocaine in a green Ford
Excursion sport-utility vehicle he drove from his home
in Arkansas.
  At trial, the prosecution’s case depended primarily on
Anderson’s testimony. Anderson testified that during
the spring and early summer of 2006, Cannon told Ander-
son that his cousin was coming to Milwaukee with a
significant amount of cocaine. Harris arrived in
Milwaukee sometime around June 25, 2006. That same
evening, Cannon called Anderson and told him that his
cousin had arrived. Anderson went to Cannon’s
residence on North 39th Street in Milwaukee (one of
two residences that Cannon maintained) and met with
Cannon and Harris. There, Anderson claimed to have
seen some of the two kilograms of cocaine that Harris
had brought with him from Arkansas. When Anderson
asked Harris how much he was charging for four-and-a-
half ounces of cocaine, Harris allegedly replied that “he
was gonna let Marc take care of all of that.” Anderson
claimed that if he and Harris had successfully moved
those two kilograms, Cannon would bring more in the
future—an arrangement that would mark a significant
step-up in their enterprise.
No. 08-4026                                              3

  After meeting with Cannon and Harris, Anderson
called Detective Jasemin Pasho, a member of the Milwau-
kee Police Department’s gang intelligence unit. Anderson
had previously both provided Pasho with information
on a homicide investigation and a marijuana trafficking
investigation and arranged controlled purchases of
cocaine for her. Anderson told Pasho about what he
had seen and heard at Cannon’s house. Specifically,
Anderson explained that Cannon and an individual
from Arkansas (although he had met with him,
Anderson did not know Harris’s name at that time) were
traveling in a green Ford Excursion with Arkansas
plates and were trying to sell a substantial amount of
cocaine. Anderson told Pasho that he believed the cocaine
was concealed in the Excursion, though Pasho later
testified that Anderson did not claim that he had actually
seen the cocaine in the Excursion. He also told her that
Cannon and Harris had asked him whether he could
take some of the cocaine.
  Pasho called another officer from the gang intelligence
unit and told him to go to Cannon’s residence on
North 39th Street and to look for the Ford Excusion. When
the police arrived, the Excursion was not there. Pasho
then called Anderson, who told her that Cannon also
had another residence in the 6500 block of Coldspring
Road and that this was his primary residence. Pasho
called other officers in her unit and gave them the infor-
mation about the house on Coldspring Road and the
green Ford Excursion, describing it as a vehicle with dark-
tinted windows and no front license plate.
4                                               No. 08-4026

  Members of the gang intelligence unit located the Ford
Excursion at the Coldspring Road house and set up
surveillance. A short time later, the officers stopped the
Excursion when they observed Cannon and Harris
driving away from the residence. Officers found $8,900
in cash in Harris’s pockets and a full brick of cocaine
contained in the rear bench seat of the truck. A search
of Cannon’s house on June 27, 2006 turned up additional
cocaine hidden in the basement rafters.
  Harris was indicted for possession with intent to distrib-
ute 500 or more grams of cocaine, in violation of
21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B). Harris then filed
several pretrial motions, including a motion to sup-
press the evidence seized during the traffic stop of the
Excursion. A magistrate judge held an evidentiary
hearing on Harris’s suppression motion and issued a
report recommending that the district court deny the
motion. The district court adopted that recommendation
in an order on February 13, 2007. On September 13,
2007, Harris moved to re-open the suppression issue;
the magistrate recommended that the district court deny
the motion, and the district court subsequently adopted
that recommendation.
  The grand jury returned a superceding indictment on
June 17, 2008, adding a count of conspiracy to distribute
more than five kilograms of cocaine. At trial, the gov-
ernment hoped to present the testimony of Marc Cannon,
but informed the court at sidebar before opening state-
ments that Cannon had invoked his Fifth Amendment
privilege against self-incrimination with respect to his
No. 08-4026                                                5

proposed testimony against Harris. Thus, the principal
witnesses against Harris were Corey Anderson and the
law enforcement team that made the arrest. After a two-
day trial, the jury convicted Harris of the charge of posses-
sion with intent to distribute but acquitted him on the
conspiracy charge. The district court sentenced Harris
to 120 months’ imprisonment and eight years of super-
vised release. This appeal followed.


                      II. Discussion
A. Corey Anderson’s Testimony
  Harris first objects to the district court’s decision to
admit certain portions of Corey Anderson’s testimony
under the exception to the hearsay rule for co-conspirator’s
declarations. This testimony was mostly hearsay state-
ments by Marc Cannon, such as when Cannon said that
“one of his cousins was coming up from down south.
Supposed to be bringing some [cocaine] up here;” “[Can-
non’s] cousin supposed to come down. He supposed to
have a couple [kilograms of cocaine];” and that “his [Can-
non’s] cousin was coming down here with some work
[some cocaine].”
  We review a district court’s decision to admit hearsay
statements under the co-conspirator’s exception for abuse
of discretion. United States v. Prieto, 549 F.3d 513, 523
(7th Cir. 2008). “In order for a statement made by a mem-
ber of a conspiracy to be admissible against other
members of the conspiracy under Rule 801(d)(2)(E), the
government must prove by a preponderance of the evi-
6                                               No. 08-4026

dence that (1) a conspiracy existed; (2) the defendant and
the declarant were members of the conspiracy; and (3) the
statement was made during the course and in fur-
therance of the conspiracy.” United States v. Schalk, 515
F.3d 768, 775 (7th Cir. 2008). This Circuit requires that a
district court make a ruling on the admissibility of a co-
conspirator’s statement prior to their introduction at trial.
United States v. Santiago, 582 F.2d 1128, 1130-35 (7th Cir.
1978). However, a failure to make the required findings
does not necessarily doom the district court’s decision to
admit the testimony. “[A] district court’s failure to
make Santiago findings will not be reversible error so
long as the evidence in the trial record would support
such findings.” United States v. Stephenson, 53 F.3d 836,
842 (7th Cir. 1995).
  Harris has a two-part qualm with the district court’s
decision to admit Anderson’s statements. He first argues
that this court should overrule Stephenson and adopt a
procedure similar to that used in the Sixth and Tenth
Circuits. In those circuits, an appeals court reviewing a
district court’s decision to admit statements pursuant to
Rule 801(d)(2)(E) first assumes that the evidence is inad-
missible and then determines whether the decision to
admit it was harmless error beyond a reasonable doubt.
See United States v. Mahar, 801 F.2d 1477, 1503-04 (6th
Cir. 1986); United States v. Radeker, 664 F.2d 242 (10th Cir.
1981). As the government points out, both circuits are
flexible about implementing this test and have held that
where the record demonstrates that the court must have
made the formal inquiry, even with no findings on the
record, there is no reversible error. See United States v.
No. 08-4026                                                7

Martinez, 430 F.3d 317 (6th Cir. 2005); United States v.
Sinclair, 109 F.3d 1527, 1533-35 (10th Cir. 1997). This
observation, when combined with our need to follow
extensive precedent (Stephenson itself relied on prior
Seventh Circuit cases that reached the same conclusion, see,
e.g., United States v. Nicosia, 638 F.2d 970, 974 (7th Cir.
1980)), proves fatal for the appellant’s first point. The
district court should have made an explicit finding on
the record with respect to the admissibility of the con-
tested statements under Rule 801(d)(2)(E), but its neglect
to do so does not rise to the level of a reversible error.
  Harris next argues that there is not enough evidence
in the record for the hearsay statements to pass muster
under the rule in Stephenson. When considering the ad-
missibility of hearsay statements under Rule 801(d)(2)(E),
a district court is allowed to consider the statements
themselves as evidence of the conspiracy. See Bourjaily v.
United States, 483 U.S. 171, 180 (1987) (“We think that there
is little doubt that a co-conspirator’s statements could
themselves be probative of the existence of a conspiracy
and the participation of both the defendant and the
declarant in the conspiracy.”). Notably, Bourjaily did not
go so far as to hold that the statements alone could be
sufficient to demonstrate a conspiracy and the defendant-
declarant’s participation therein without independent
supporting evidence in the record. Id. at 181. That is, the
record must contain at least some facts confirming the
existence of the conspiracy and Harris’s participation
in it before we could find the disputed portions of Ander-
son’s testimony admissible under Rule 801(d)(2)(E).
8                                               No. 08-4026

  In terms of independent evidence, the government
argues that the existence of a drug-trafficking conspiracy
can be inferred from: (1) the one-kilogram brick of cocaine
found in the Ford Excursion that Cannon was driving
with Harris in the passenger seat; and (2) the fact that
Harris had $8,900 in cash in his pockets, an amount the
government claims is approximately equal to the value of
about 500 grams of cocaine (which, together with the
cocaine taken from the Excursion and from Cannon’s
residence, equals about two kilograms, the amount that
Anderson claimed Harris and Cannon had available
for sale). Harris attempts to combat this corroborating
evidence. He states that, according to the government’s
own witness at trial, the value of a half-kilogram of
cocaine is in fact about $12,000, not $8,900, and that the
mere presence of Harris in a vehicle driven by someone
else and registered to a third party (Harris apparently
drove the Excursion from Arkansas, but it was not regis-
tered to him) is thin evidence of a conspiracy.
  The government, however, points to further indications
of a conspiracy in Anderson’s testimony. These include
Harris’s presence at Cannon’s house when Anderson
and Cannon discussed cocaine sales, Harris’s presence
when Cannon both showed Anderson cocaine that Harris
supposedly brought with him and claimed that Harris
could bring more cocaine in the future, and Harris’s
statement to Anderson that he would let Cannon take
care of setting a price for cocaine. Harris presents counter-
arguments against the use of each data point. He
explains his presence during the conversations by
pointing out that he was only in town for the weekend
No. 08-4026                                                 9

and was staying with Cannon, and that his alleged willing-
ness to let Cannon take care of the details was in fact a non-
committal statement that did not indicate the existence
of a conspiracy. In the alternative, he argues that these
statements only indicate the existence of a conspiracy if
one assumes that Anderson is credible. Because the
district court never made an explicit credibility deter-
mination on the record, Harris asks us to either remand
to the district court for said determination or reverse
outright under the theory that the absence of such a
determination dooms the admission of the hearsay state-
ments at the heart of the case. Harris further points out
that the jury’s decision to acquit him on the conspiracy
charge signals its skepticism with respect to Anderson’s
testimony about a future agreement to buy and sell
greater quantities of cocaine.
  Both sides agree that the statements, if improperly
admitted, were not harmless. Harris argues that Ander-
son’s testimony was central to the case against him, and
the government waived any harmless error argument by
not presenting one in its response brief. This presents a
close question: the government’s evidence of the con-
spiracy centers around the disputed hearsay statements
themselves (and while Bourjaily permits this kind of
bootstrapping, it is not the strongest evidence of a con-
spiracy) and Harris’s presence in the Excursion when
police officers discovered a kilogram of cocaine.
  Nonetheless, the preponderance of the evidence on
record does support the existence of a conspiracy. First, it
is relevant that while Harris was not the owner of the
10                                           No. 08-4026

Excursion, he drove it from Arkansas to Milwaukee, and
thus there is strong evidence that the cocaine discovered
in the car belonged to him. Second, while $8900 found in
Harris’s pockets may not exactly equal the street value
of a half-kilogram of cocaine, such an exceedingly large
quantity of cash is further circumstantial evidence of
Harris’s involvement in drug trafficking. Third, the
accuracy of some of Anderson’s statements to the po-
lice—most importantly, that there was cocaine concealed
in the Excursion—corroborate his testimony and ade-
quately bolster his credibility. Finally, Harris’s claim
that Detective Pasho’s testimony is contradictory lacks
merit. Pasho testified that Anderson told her he had seen
cocaine during his meeting with Cannon and Harris, and
that he believed cocaine was concealed in the Excursion,
even though he did not personally see it. We there-
fore defer to the trial court’s decision to characterize
Anderson’s testimony as credible, conclude that a prepon-
derance of the evidence on the record supports the exis-
tence of a conspiracy, and affirm that the district court
properly admitted Anderson’s testimony under Rule
801(d)(2)(E). While the district court should have deter-
mined as much pursuant to the procedure set out in
Santiago, the absence of such explicit findings in this
case is not reversible error. Since the decision to admit
evidence was correct, it did not infringe on defendant-
appellant’s Sixth Amendment rights.


B. The Traffic Stop of Harris’s Ford Excursion
  Harris’s second argument is that the district court
erred by admitting evidence seized during the traffic
No. 08-4026                                             11

stop of the Ford Excursion in which he was riding. Harris
argues that one of the stated bases for the stop—that he
was riding in a vehicle that lacked a properly displayed
front license plate—is not required in Arkansas, where
the car is registered. The district court nonetheless found
that there was probable cause for the stop based on the
information that Anderson supplied to Pasho, and that in
turn the officers who actually conducted the stop had
probable cause under the collective knowledge doctrine.
 The collective knowledge doctrine provides that
   The police who actually make the arrest need not
   personally know all of the facts that constitute proba-
   ble cause if they reasonably are acting at the
   direction of another officer or police agency. In that
   case, the arrest is proper so long as the knowledge
   of the officer directing the arrest, or the collective
   knowledge of the agency he works for, is sufficient
   to constitute probable cause.
Tangwell v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998) (em-
phasis removed) (quoting United States v. Valencia, 913
F.2d 378, 383 (7th Cir. 1990)). The doctrine derives from
the Supreme Court’s decision in United States v. Hensley,
469 U.S. 221 (1985), where the Court held that “effective
law enforcement cannot be conducted unless police
officers can act on directions and information trans-
mitted by one officer to another and that officers, who
must often act swiftly, cannot be expected to cross-examine
their fellow officers about the foundation for the trans-
mitted information.” Id. at 231 (citations omitted). We
have recognized two situations where the collective
12                                               No. 08-4026

knowledge doctrine usually applies: where police de-
partments or agencies transmit information across juris-
dictions, and where officers communicate with each
other at the scene of an arrest. United States v. Parra, 402
F.3d 752, 764 (7th Cir. 2005).
  The present case falls into the second of those two
scenarios. Harris, however, argues that the police officers
who actually conducted the stop did not have sufficient
communication with Pasho to justify application of the
collective knowledge doctrine. He relies heavily on
United States v. Ellis, 499 F.3d 686 (7th Cir. 2007). In
Ellis, three police officers had arrived at a home; two
officers questioned one of the residents at the front door
of the house, while the third officer went around to a
side door. Id. at 688. The officer at the side door, upon
hearing what he though was a person running inside
the house, decided to enter. Id. The district court found
that the police could justify the officer’s warrantless
entry through the side door of the house by relying on
the information that the two officers at the front door
learned from questioning the house’s resident. Id. at 689-
90. We reversed, holding that because there was no com-
munication between the officers at the scene, and
because the officer who entered the house conceded at
the suppression hearing that he could not hear the con-
versation at the front door, that the collective knowledge
doctrine did not apply to the case. Id. at 690.
  Harris argues that in his case, as in Ellis, there was
insufficient communication between Pasho and the
officers at the scene to justify application of the collective
No. 08-4026                                             13

knowledge doctrine. The government counters that Pasho
and the officers who conducted the stop were all
members of the same police unit and that there was
“extensive communication” between Pasho and the
officers at the scene. The content of this communication
at least included information about the Ford Excursion
and the need to conduct a traffic stop. That information
alone would be enough to justify application of the collec-
tive knowledge doctrine, as the officers were acting
based on Pasho’s request for a traffic stop rather than
their own suspicions.
  Harris also argues that the information that Anderson
supplied to Pasho did not provide probable cause for a
traffic stop. When law enforcement agents act on an
informant’s tip, a reviewing court examines (1) whether the
informant made first-hand observations; (2) the degree
of detail provided by the informant; (3) whether indep-
endent information corroborates the informant; and
(4) whether the informant has proven to be reliable in
past dealings with law enforcement. United States v.
Sidwell, 440 F.3d 865, 869 (7th Cir. 2006).
  Anderson had previously provided information to law
enforcement as part of various investigations, and
Harris does not suggest that he was unreliable in those
situations. Nor does Harris challenge Anderson’s first-
hand observation of drugs, though he continues to assert
that Anderson was inconsistent in claiming that he had
seen drugs in the car. Instead, Harris argues that there
was no independent corroboration of Anderson’s tip,
and that the information was not especially detailed.
14                                              No. 08-4026

  However, the tip contained specific information about
Cannon’s residence, the car Harris was driving, and
Anderson’s interactions with both Cannon and Harris. At
the very least, those details turned out to be correct.
Anderson’s tip also told officers that Cannon and Harris
had cocaine in Harris’s truck. In the “Agreed Facts”
portion of his motion to suppress, Harris stipulated
that “Detective Jasemin P. Miscichoski [Pasho], City of
Milwaukee Police Department, reported that on Sunday
June 25, 2006 at approximately 7:42 p.m. he [sic] was
advised in a telephone conversation with a confidential
informant that: ‘. . . a black male, in his late 30’s was
driving a Ford green Excursion displaying Arkansas
registration plate, and that inside the truck there is
hidden approximately 2-3 kg of cocaine.’ ” While Pasho
(at the time named Miscichoski) did not question
Anderson about whether he had actually seen cocaine
in the vehicle, Anderson had seen cocaine in Cannon’s
residence and had seen both Cannon and Harris in the
same room with cocaine, and heard Cannon claim that
Harris had driven up from Arkansas with significant
quantities of it. As the district court correctly determined,
that information would give officers probable cause to
stop and search Harris’s vehicle.


C. Sufficiency of Evidence for a Conviction
  Harris’s last argument renews his post-judgment
motion for acquittal. A challenge to the sufficiency of the
evidence is reviewed under an extremely deferential
standard. We ask whether “after viewing the evidence
No. 08-4026                                               15

in the light most favorable to the prosecution, any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United
States v. Curtis, 324 F.3d 501, 504 (7th Cir. 2003) (emphasis
in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). A judgment of acquittal is only warranted if the
record is entirely devoid of evidence from which a
rational jury could find guilt beyond a reasonable doubt.
  Harris argues that the evidence introduced by the
government at trial merely established his proximity to
the drugs seized from the truck, but did not establish
that he knew the vehicle contained cocaine. This Circuit
has previously ruled that mere proximity to an item is
insufficient to establish possession. See United States v.
Irby, 558 F.3d 651, 654 (7th Cir. 2009); United States v.
Chairez, 33 F.3d 823, 825 (7th Cir. 1994). However, the
government presented evidence that a kilogram of
cocaine was found in the Ford Excursion that Harris
drove from Arkansas to Milwaukee, and that Harris was
present when Cannon and Anderson discussed drug
sales. Even without the disputed hearsay testimony from
Anderson, this evidence would enable a rational jury to
find Harris guilty of the possession charge on which he
seeks a judgment of acquittal.


                     III. Conclusion
  For the foregoing reasons, we A FFIRM the district court’s
judgment of conviction.

                           10-30-09
