In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1724

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT GARDNER,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99-CR-108 RL--Rudy Lozano, Judge.


Argued October 24, 2000--Decided January 26, 2001



  Before FLAUM, Chief Circuit Judge, and MANION and
EVANS, Circuit Judges.

  EVANS, Circuit Judge. Robert Gardner and a
codefendant were charged with conspiracy to
maintain a crack house, in violation of 21 U.S.C.
sec. 846; with maintaining a crack house, in
violation of 21 U.S.C. sec. 856(a)(1); and with
possession with intent to distribute cocaine, in
violation of 21 U.S.C. sec. 841(a)(1). At trial,
Gardner was found guilty on the first count and
not guilty on the third; the second count was
dismissed during the trial. At sentencing,
Gardner was found responsible for 120 grams of
crack cocaine, resulting in an offense level of
32. His level was enhanced by 2, under sec.
3C1.1, for trial testimony which the court found
was perjurious. This netted him a sentencing
range of 151 to 188 months, and he received 151
months.

  Gardner appeals both his sentence and his
conviction. He contends that the trial judge
abused his discretion in excluding the testimony
of a codefendant’s attorney, that the evidence
was not sufficient to sustain his conviction, and
that the judge erred in enhancing his offense
level for false testimony during the trial.

  In attacking the sufficiency of the evidence, a
defendant bears a heavy burden. United States v.
Wallace, 212 F.3d 1000 (7th Cir. 2000). The
evidence and all reasonable inferences that can
be drawn from it must be viewed in the light most
favorable to the government. United States v.
Frazier, 213 F.3d 409 (7th Cir. 2000); United
States v. Angle, 2000 WL 1785056 (7th Cir. 2000).
We do not weigh the evidence or second-guess the
jury’s credibility determinations. United States
v. Irorere, 228 F.3d 816 (7th Cir. 2000). The
test is whether, when the evidence is viewed in
a light most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S.
307 (1979).

  A conspiracy under 21 U.S.C. sec. 846 requires
that (1) two or more people agreed to commit an
unlawful act and (2) the defendant knowingly and
intentionally joined in the agreement. No overt
act is required. United States v. Thornton, 197
F.3d 241 (7th Cir. 1999). Guilt can be inferred
by the circumstances and the conduct of the
parties. United States v. Brown, 934 F.2d 886
(7th Cir. 1991).

  The evidence in this case shows that a man
named Jermaine Carr and his now-deceased brother
moved into a house on Fillmore Street in Gary,
Indiana. The previous residents of the house had
been selling crack cocaine, and after Carr and
his brother moved in, people continued to come to
the house to buy crack. Apparently spying a
financial opportunity, the Carr brothers began to
sell crack out of the house. Jermaine Carr sold
crack 6 days a week; men named Roger Taylor, Shun
Drayton, and Mario Bird each sold 3 days a week.
All supplied their own crack to sell.

  Gardner was close friends with Taylor and
visited the house seven or eight times. On five
occasions he sold crack out of the house by
asking Carr, when customers came by, whether he
could "get that one."

  In April 1999 the Gary Response Investigative
Team (GRIT), operating through a confidential
informant, made a controlled buy of crack from
the house. After a second controlled buy, GRIT
officers obtained a search warrant. Proving again
how important bad timing is in drug cases, see
United States v. Folami, 2001 WL 15922 (7th Cir.,
Jan. 9, 2001), Gardner had the misfortune of
arriving at the house a minute before officers
arrived to execute the warrant. The officers put
the four men who were in the house, including
Gardner, on the floor, handcuffed them, and
patted them down for weapons. While inside the
house, the men were not searched for drugs. Then
the four were taken out of the house and turned
over to an FBI agent. The men were again required
to lie down. The agent searched the area and
found a plastic bag containing 6.1 grams of
cocaine base near Gardner’s knees. Agents found
other drug-related items in the house. Later, at
the GRIT office, money was found in Gardner’s
underwear.

  Gardner testified that the money came from his
mother’s account which he accessed through an
ATM. He testified that the reason he had gone to
the Fillmore house was to ask Taylor to do some
work on his mother’s house. He also testified
that he did not agree to maintain a crack house,
that he did not go to the house to use drugs,
that he had not seen people selling drugs there,
and that the crack found was not his.

  The evidence showed that Jermaine Carr and his
brother clearly conspired to maintain a crack
house and committed the substantive offense of
maintaining one. To be guilty of conspiracy to
operate a crack house, Gardner had to know of the
conspiracy and intend to join and associate
himself with its criminal design and purpose.
United States v. Auerbach, 913 F.2d 407 (7th Cir.
1990). Here, the government proved that Gardner
knew of the conspiracy because he actually sold
crack out of the house on five separate
occasions. He asked Jermaine Carr for permission
to sell crack to the customers who came to the
house. Gardner also had a mutual interest with
the Carrs in the success of the house because it
provided him with a place to sell his crack. In
turn, by selling crack on the premises, Gardner
helped the Carrs be sure that crack was available
at the house when customers wanted it. Viewing
these facts again as we must in the light most
favorable to the government, the evidence was
sufficient to sustain Gardner’s conviction.

  Gardner also contends that the judge abused his
discretion in excluding evidence of a
conversation between an assistant United States
attorney and Paul Jeffrey Schlesinger, the
attorney for Taylor. Taylor had pled guilty and
was awaiting sentencing. The government had
listed Taylor as a potential witness at Gardner’s
trial but decided not to call him, no doubt
because Taylor reportedly would either testify
that Gardner had no involvement in the crime or
would exercise his Fifth Amendment right not to
testify. However, Taylor had also been subpoenaed
as a witness for Gardner. The AUSA told
Schlesinger that Taylor should be aware that if
he testified he risked losing credit on his
sentence for acceptance of responsibility and,
further, that his offense level might be
increased for obstruction of justice. Taylor did
not testify.
  Gardner claims that the reason Taylor did not
testify is that he had been intimidated by the
prosecutor’s warning about the effects his
testimony could have on his sentence. To make
matters worse, Gardner thinks the government
called attention to the absence of Taylor’s
testimony. During cross-examination of Gardner,
the government elicited testimony that Taylor was
a long-time friend of his and that, in fact,
Taylor considered Gardner to be a little brother.
Gardner contends that the only reason for the
cross-examination was to raise the question that
if Taylor was such a good friend, why did he not
testify on Gardner’s behalf.

  To explain Taylor’s absence, Gardner wanted to
call Schlesinger to testify regarding the
conversation with the AUSA. The judge excluded
the testimony pursuant to Rule 403, saying that
the probative value was outweighed by the dangers
of unfair prejudice, confusion, the risk of
misleading the jury, and by considerations of
undue delay. We review this ruling for an abuse
of discretion, United States v. Williamson, 202
F.3d 974 (7th Cir. 2000), and find that the
exclusion of attorney Schlesinger’s testimony was
within a proper exercise of the trial judge’s
discretion.

  The cases Gardner relies on to support his
claim are off the mark. United States v. Goodwin,
625 F.2d 693, 703 (5th Cir. 1980), is cited for
the unremarkable proposition that "[t]hreats
against witnesses are intolerable." The Goodwin
court goes on to note that "[s]ubstantial
government interference" with a defense witness
violates a defendant’s due process rights. That
case is not helpful on this point, however,
because the court was unable, on the record
before it, to evaluate whether "substantial"
interference had occurred. Thus we cannot surmise
from that case what substantial interference
might be. In United States v. Blackwell, 694 F.2d
1325 (D.C. Cir. 1982), a witness was warned once
by both the prosecutor and the trial judge about
the consequences of perjury. The court concluded
that the "conduct of the judge and the prosecutor
just recounted does not begin to approach the
level of misconduct" described in other cases
where deprivations of due process were found.

  In United States v. Jackson, 935 F.2d 832
(1991), we have drawn what we see as the
appropriate line between a truthful warning to a
potential witness and a highly intimidating
threat. We recognized the "narrow path"
prosecutors must walk in dealing with
unrepresented witnesses. On one hand they have
"ethical duties" to warn witnesses of the risk
they face in testifying; on the other hand, a
defendant has a right to call witnesses who are
free to testify without fear of government
retaliation. Where the prosecutor merely provides
the witness with a "truthful warning" there is no
constitutional violation. Where what the
prosecutor says is a threat over and above
whatever warning was "timely, necessary, and
appropriate," the inference is that the
prosecutor was trying to coerce the witness into
silence. Jackson involved an unrepresented
witness, and the claim was that the defendant’s
due process rights were violated, not simply that
the trial judge committed an evidentiary error.
Nevertheless, we think that the principles set
forth can guide our analysis of the present
situation where the witness, Taylor here, had a
lawyer.

  The prosecutor informed attorney Schlesinger of
the dangers of testimony which might be perceived
by the trial judge as false. At the hearing held
out of the presence of the jury, Schlesinger
testified as follows:

And he [the prosecutor] indicated that anything
that my client testified to could be used against
him in a sentencing, specifically, that he would
be subject to enhance--well, either revocation of
acceptance of responsibility to depart his plea.
And also, that he could be facing perjury or
obstruction of justice charges. And also that he
had seen Judge Lozano do that in the past on
other cases.

When asked whether that conveyed to him any
danger to his client if he testified, he said:

Well, I was aware of the danger to Mr. Taylor and
the problems that [the prosecutor] had advised me
of in advance to that.

Schlesinger also testified that because his
client would not have been sentenced at the time
of the Gardner trial, "I would be crazy not to
tell him to take the Fifth at that point."
Schlesinger was also aware that

[t]he truthfulness of my client’s statement, of
course, is going to be determined by the Court.
And my fear was that whether it’s truthful or
not, if the Court determines based on the overall
evidence that it’s not truthful, that the
enhancement will be--will be that. And of course,
not knowing--the other consideration is not
knowing all the evidence that’s going to come in,
my client runs that risk, even if he indicates
that his testimony is truthful to me, you’re [the
judge] the final determiner or that.

In this context it seems clear that the
prosecutor’s statement to Schlesinger was a
truthful warning. It also seems that it had no
bearing on the issue as to whether Taylor would
testify for Gardner. Taylor’s attorney was well
aware--with or without the prosecutor’s warning--
that Taylor’s self-interest dictated that he
remain silent.

  Furthermore, practical considerations support
the exclusion of the testimony. In order to
understand the significance of the warning the
jury would need to know something about the
arcane sentencing guidelines. Instructing the
jury on the guidelines would cause undue delay of
the trial. Also, practically speaking, how is it
of much benefit to Gardner to have the jury know
that Taylor would be testifying for him except
for the fact that the judge might find the
testimony to be perjurious? All in all, we see no
abuse of discretion in the exclusion of
Schlesinger’s testimony.

  Finally, Garner contends that the judge erred
in enhancing his sentence 2 levels under sec.
3C1.1 for obstruction of justice. Gardner says
the findings that he testified falsely about not
dealing drugs at the crack house and that the
drugs found near his knees were not his were
deficient because the judge did not find that he
had willfully given false testimony. He does not
contend that the judge was wrong to find that the
testimony was false, only that the judge did not
find it to be willfully false.

  A sentencing court’s determination that a
defendant obstructed justice is a factual finding
reviewed under the clearly erroneous standard.
United States v. Brown, 900 F.2d 1098 (7th Cir.
1990). We find no clear error in this situation.
The court independently evaluated Gardner’s
testimony and found him untruthful when his
testimony was compared to that of the other
witnesses. We have previously found such a
finding adequate. United States v. Pedigo, 12
F.3d 618 (7th Cir. 1994). Gardner’s statements
that he did not deal drugs out of the house or
that the drugs found were not his cannot be said
to be the result of confusion, mistake or faulty
memory. Accordingly, the judgment is AFFIRMED.
