                            In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 12-1277 & 12-2865

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

R ONALD Z ITT and JOSHUA W AMPLER,

                                          Defendants-Appellants.


            Appeals from the United States District Court
      for the Northern District of Indiana, Hammond Division.
                 No. 2:09cr35—Rudy Lozano, Judge.



      A RGUED M ARCH 5, 2013—D ECIDED A PRIL 15, 2013




 Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge.   Ronald Zitt and Joshua
Wampler were charged in a multi-count, multi-
defendant indictment alleging a heroin conspiracy and
substantive counts of distribution. See 21 U.S.C.
§§ 841(a)(1), 846. Zitt was convicted after a jury trial
of conspiring to distribute, and distributing, heroin.
Wampler pleaded guilty to conspiring to distribute
heroin. Both filed notices of appeal, and we consoli-
dated their cases.
2                                  Nos. 12-1277 & 12-2865

  On appeal Zitt challenges the denial of his motion
for a mistrial. Because the district court properly exer-
cised its discretion in denying that motion, we affirm
the judgment.
  Wampler’s appointed lawyer has concluded that Wam-
pler’s appeal is frivolous and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). Wampler waived
his right to appeal as a condition of his plea agree-
ment. We therefore grant counsel’s motion to withdraw,
dismiss the appeal, and deny Wampler’s motion for
substitute counsel.


                            I.
  Zitt went to trial for conspiring to distribute and dis-
tributing heroin. In his opening statement, Zitt’s lawyer,
Adam Tavitas, reminded the jurors of their duty to
assess the credibility of the government’s witnesses
and asserted that many of those witnesses had agreed
to testify against Zitt because, in exchange, they would
receive lenient sentences for crimes they had committed.
  On the second day of trial, the government called
James Summers. The prosecutor questioned Summers,
an informant, about his prior convictions in 1976 and
2005. On cross-examination, attorney Tavitas returned
to that subject. He asked whether the defendant had
known that Summers had gone to prison in 2005, and
Summers answered, “I was in prison while he’s locked
up.” At a sidebar Tavitas immediately moved for a mis-
trial. He argued that Summers’s answer was improper
Nos. 12-1277 & 12-2865                                    3

because, although evidence of Zitt’s convictions would
be admissible should he testify, Zitt had not yet decided
whether he would take the stand. The jury would
assume, Tavitas asserted, that Zitt had a criminal
history and be prejudiced by that knowledge.
  The prosecutor countered that Summers simply had
given an “obvious answer” to Tavitas’s question. The
prosecutor assured the court that Summers had been
cautioned not to “bring up” Zitt’s convictions; neither
the court nor Tavitas doubted that was true. The pros-
ecutor added that, until then, he was unaware that
Zitt and Summers had been “in jail together,” which
prompted Tavitas to explain that they weren’t “together
at the same jail,” and thus weren’t “bunkies or any-
thing like that.”
  The district court refused to order a mistrial but
offered Zitt two lesser remedies: (1) a recess so that
Tavitas could investigate whether Zitt and Summers
had been incarcerated in the same facility at the same
time; and (2) an admonishment to the jury that
Summers’s answer was irrelevant. Zitt declined those
options and the trial resumed.
  During the 3-day trial the government called 15 wit-
nesses, including law-enforcement officers, informants,
codefendants, and heroin buyers. The jury learned that
Zitt had confessed to a federal agent and divulged
where he got his heroin, who traveled to retrieve it,
and how he distributed it. Two codefendants testified
that Zitt had sent them to get heroin in Chicago and
deliver it to buyers in Indiana. Several of Zitt’s customers
4                                  Nos. 12-1277 & 12-2865

also testified, implicating him in hundreds of heroin
sales. And investigators and informants testified about
six attempts to buy heroin from Zitt, all documented
with audio and video. Three of those controlled buys
succeeded, two were foiled after Zitt’s confederates
discovered the recording devices worn by the
informant, and Zitt himself put the kibosh on the
sixth controlled buy when the informant declined to
sample the heroin as directed.
  Zitt did not testify or present other evidence. The
jury returned guilty verdicts on all counts. He was sen-
tenced to life imprisonment.
   On appeal Zitt argues that the district court abused
its discretion, see United States v. Keskes, 703 F.3d 1078,
1086 (7th Cir. 2013), by refusing to order a mistrial after
Summers had said they were in jail together. The answer
Summers gave, Zitt argues, was improper because his
convictions were relevant only to impeach his credi-
bility if he testified, which he did not. Evidence of
prior crimes is always prejudicial, says Zitt, and in his
view the district court’s offer to admonish the jury
proves that the testimony was so inflammatory that he
was denied a fair trial.
  Although the government accepts Zitt’s characteriza-
tion of Summers’s answer as “improper,” we disagree.
Examining another party’s witness entails risk in
deciding what to ask and how to craft questions,
see Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir. 1997),
and after Summers gave an answer that surprised every-
one, Zitt decided that his gamble did not pay off. Zitt’s
Nos. 12-1277 & 12-2865                                    5

trial lawyer, Tavitas, never explained why he asked that
particular question, and Zitt does not offer a reason on
appeal. Whatever Tavitas’s intent may have been, the
government’s argument at sidebar is persuasive: A
logical answer to the question whether Zitt had known
that Summers went to jail in 2005 is yes, because
Summers was in prison at the same time as Zitt. Sum-
mers gave an answer that was responsive, fair, and
entirely proper given the line of questioning Tavitas
was pursuing. See United States v. Powell, 652 F.3d 702,
709 (7th Cir. 2011); United States v. Johnson-Dix, 54 F.3d
1295, 1303-04 (7th Cir. 1995). Tavitas invited the
answer Summers gave, and thus the district court did
not abuse its discretion by denying Zitt’s motion
for mistrial. See id. at 1304 (concluding that defense
counsel invited government agent’s answer—that defen-
dant told agent “half-truths”—in response to cross-exami-
nation inquiry into defendant’s willingness to answer
agent’s questions, and upholding denial of motion for
mistrial); United States v. Robinson, 439 F.3d 777, 782
(8th Cir. 2006) (noting that “a witness’s truthful response
to counsel’s own question is not grounds for a mistrial”);
United States v. Vigneau, 187 F.3d 70, 81-82 (1st Cir. 1999)
(concluding that government witness’s answer alluding
to credibility of other witnesses was arguably “fairly
responsive” to defense counsel’s question and, because
it was “a single brief reference,” harmless); United States
v. Wills, 88 F.3d 704, 712-13 (9th Cir. 1996) (upholding
denial of motion for mistrial after defense counsel
elicited testimony on cross-examination barred by
motion in limine).
6                                   Nos. 12-1277 & 12-2865

   Zitt urges us to follow the reasoning in United States
v. Aldrich, 169 F.3d 526 (8th Cir. 1999), but that case is
inapposite. In Aldrich the defendant was tried before a
jury on charges for possessing a gun and ammunition as
a felon and also for possessing an unregistered firearm.
169 F.3d at 527. To prove the counts of possession by a
felon, the government introduced evidence of a prior
conviction that would have been excluded as irrelevant
if the trial was limited to a charge of possessing an unreg-
istered firearm. Id. The jury returned guilty verdicts
on all counts, but after the parties learned that the defen-
dant had regained his right to possess firearms fifteen
years earlier, the district court vacated the counts for
possession by a felon but denied a new trial for the
third count. Id. at 527-28. The Eighth Circuit—focusing
on the “[p]rejudicial spillover from evidence used to
obtain a conviction subsequently vacated”—remanded for
a new trial. Id. at 528 (emphasis added). There is
nothing remarkable about the outcome in Aldrich, and
the decision has nothing to do with the issue presented
here by Zitt.
  Even if we assume for the sake of argument that Sum-
mers’s testimony was improper, the statement was not
so prejudicial that Zitt was denied a fair trial, so any
arguable error would be harmless. See United States v.
Vargas, 689 F.3d 867, 873 (7th Cir. 2012). Summers’s com-
ment was brief and nondescript and, afterward, Zitt’s
criminal history was never mentioned again. See United
States v. Prieto, 549 F.3d 513, 522 (7th Cir. 2008). Thus,
there was no danger that, because of this fleeting
answer, the jury was prevented from fairly evaluating
Nos. 12-1277 & 12-2865                                    7

the evidence. See, e.g., United States v. Garvey, 693 F.3d
722, 726 (7th Cir. 2012) (concluding that one isolated
statement about defendant smoking marijuana, though
inadmissible, did not warrant mistrial); Powell, 652 F.3d
at 709 (acknowledging jury’s ability to disregard wit-
ness’s improper testimony on potential length of defen-
dant’s sentence). And contrary to Zitt’s contention that
the district court conceded that Summers’s testimony
was “highly inflammatory” by offering to admonish
the jury that evidence of past crimes is irrelevant, Zitt’s
decision to decline the court’s offer further weighs
against finding an abuse of discretion. See United States
v. Brack, 188 F.3d 748, 759 (7th Cir. 1999); Bergmann v.
McCaughtry, 65 F.3d 1372, 1377-78 (7th Cir. 1995);
United States v. Ramos, 932 F.2d 611, 617 (7th Cir. 1991).
  Finally, any impact Summers’s quick reference to
Zitt’s past jail time may have had on the jury is out-
weighed by the overwhelming evidence of guilt. See
Vargas, 689 F.3d at 875. The government elicited testi-
mony from investigators and informants implicating Zitt
in six attempted controlled buys, all of them memori-
alized by video or audio played for the jury. Four of his
customers testified that, over time, they had purchased
significant amounts of heroin from him. Moreover, an
agent testified that Zitt had confessed after his arrest
and offered incriminating details about the conspiracy.
Because the government’s untainted evidence was so
overwhelming, Summers’s momentary comment could
not have contributed to the conviction and therefore
was harmless. See Chapman v. California, 386 U.S. 18, 23
(1967); Vargas, 689 F.3d at 875-76; Prieto, 549 F.3d at 522;
8                                  Nos. 12-1277 & 12-2865

United States v. Miller, 276 F.3d 370, 375 (7th Cir. 2002);
United States v. Emerson, 501 F.3d 804, 813 (7th Cir.
2007); United States v. Thornton, 197 F.3d 241, 250 (7th
Cir. 1999).
  One technique that might prevent such testimony from
coming out in open court would be to have the court
directly inform or remind the witness about the pro-
hibited testimony before the witness testifies, outside
the presence of the jury. The court could also advise the
witness that she may request a sidebar or recess if the
witness believes that honestly answering a question
would require her to give the prohibited testimony. Then
if such a question arises, the witness can request a
sidebar or recess, the issue can be fully discussed outside
the jury’s presence, and a preemptive solution, such as
a reformulated question, might be worked out.


                            II.
  Wampler pleaded guilty to conspiring to distribute
heroin. But after reviewing a presentence report incor-
rectly labeling him as a career offender, he moved to
withdraw his guilty plea. The district court denied this
motion and imposed a below-guidelines prison sentence
of 151 months.
  Wampler filed a notice of appeal, but his appointed
lawyer has concluded that the appeal is frivolous and
moves to withdraw under Anders v. California, 386 U.S.
738 (1967). Wampler has responded to counsel’s motion,
see Cir. R. 51(b), and we limit our review to coun-
sel’s facially adequate brief and Wampler’s response,
Nos. 12-1277 & 12-2865                                    9

see United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2002).
  Wampler’s appointed counsel fails to note in his
Anders submission that Wampler waived his right to
appeal. Unless there is reason to question the validity
of Wampler’s appeal waiver, that waiver is dispositive
here. An appeal waiver stands or falls with the under-
lying guilty plea, United States v. Kilcrease, 665 F.3d 924,
929 (7th Cir. 2012); United States v. Henry, 702 F.3d 377,
380 (7th Cir. 2012); United States v. Sakellarion, 649 F.3d
634, 638-39 (7th Cir. 2011), but counsel does not say if
he asked Wampler whether he wants to challenge his
guilty plea, see United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670-
71 (7th Cir. 2002). Although the defendant’s Rule 51(b)
response is ambiguous, it appears that he wishes to
challenge his guilty plea, though any challenge would
be frivolous.
  During the plea colloquy the district court sub-
stantially complied with Federal Rule of Criminal Pro-
cedure 11. See Konczak, 683 F.3d at 349; United States
v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003); United
States v. Akinsola, 105 F.3d 331, 334 (7th Cir. 1997). The
judge explained the nature of the charge, the statutory
penalties, the role of the sentencing guidelines and
the judge’s discretion in applying them, the process for
receiving credit for acceptance of responsibility and
cooperation with the government, and the trial and
appellate rights he was waiving by entering the plea.
And the judge ensured that the plea was made
10                                    Nos. 12-1277 & 12-2865

voluntarily with neither the government nor counsel
forcing him to plead guilty or assuring a specific sen-
tence. Thus, the transcript of the plea colloquy demon-
strates that Wampler knowingly and voluntarily
pleaded guilty, and that means that his waiver is en-
forceable.
  Wampler asserts in his Rule 51(b) response that he
would argue on appeal that he received ineffective assis-
tance of counsel during plea negotiations (though he
does not say how counsel purportedly was deficient).
His appeal waiver does contain an exception for ineffec-
tive assistance of counsel, but only if it relates directly
to the waiver. And even if Wampler limits his argument,
his claim is better suited for a collateral proceeding.
See United States v. Jones, 696 F.3d 695, 702 (7th Cir. 2012);
United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005).


                             III.
  Zitt’s conviction is AFFIRMED. The motion to with-
draw filed by counsel for Wampler is G RANTED , and
Wampler’s appeal is D ISMISSED. Wampler’s pro se
motion for substitute counsel is D ENIED.




                            4-15-13
