In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-2541 & 99-2758

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL A. ROE,

Defendant-Appellant.



Appeals from the United States District Court
for the Western District of Wisconsin.
No. 98 C 3946--Barbara B. Crabb, Judge.


Argued January 21, 2000--Decided April 11, 2000



      Before BAUER, RIPPLE and KANNE, Circuit Judges.

      RIPPLE, Circuit Judge. A jury found Michael Roe
guilty of conspiring to distribute cocaine in
violation of 21 U.S.C. sec. 846. The district
court held Mr. Roe responsible for conspiring to
distribute 623 grams of cocaine and based his
sentence on that amount. On this appeal, Mr. Roe
seeks the reversal of his conviction. He contends
that the district court improperly allowed the
Government to enter evidence of his prior cocaine
conviction and to make improper statements during
closing argument. Mr. Roe also challenges the
district court’s sentencing decision. He contends
that the court improperly determined the amount
of cocaine attributable to him. For the reasons
set forth in the following opinion, we affirm the
judgment of the district court.

I

BACKGROUND

      Michael Roe was convicted of conspiring with
Timothy Weger to distribute cocaine. There is no
dispute that Weger was involved in the
distribution of cocaine; he pleaded guilty to
cocaine conspiracy and then testified against Mr.
Roe at trial. A Madison, Wisconsin, police
officer testified that he had found drug
paraphernalia in Weger’s trash, and more
paraphernalia was found inside Weger’s home.
Further, there is no dispute that Mr. Roe and
Weger engaged in cocaine transactions with each
other. Mr. Roe’s defense at trial was that he was
not a co-conspirator of Weger’s, but instead was
merely a customer. Weger testified that some of
the paraphernalia at his house belonged to Mr.
Roe.

      At trial, the Government questioned Mr. Roe
about his prior cocaine-related conviction. In
1989, Mr. Roe had pleaded guilty to possession of
cocaine with intent to distribute. In addition to
asking Mr. Roe about his prior conviction, the
Government referred to the issue in its closing
argument. After trial, the district court issued
an opinion clarifying its basis for allowing this
evidence under Federal Rules of Evidence 404(b)
and 609. The court noted that Mr. Roe had put at
issue the absence of cocaine paraphernalia at his
own house. Therefore, this evidence helped
explain why he would not keep such paraphernalia
there but might instead keep it at Weger’s house.

      The Government made two comments during closing
argument that Mr. Roe claims misstated the law.
The first comment, to which Mr. Roe did not
object at trial, was a statement of the law of
conspiracy: "Basically what we have to do is
prove to you that there was an agreement. That
there was something going on between those two
men, an agreement." R.98 at 57. The second
statement was as follows:

Last point. Mr. Roe got up there and did a big
deal about basically what was a role reversal.
"I’m not the source. I’m the customer. Tim’s the
source." It’s total poppycock, but believe it if
you will. He’s still guilty. Just reversing the
roles doesn’t get you out of the conspiracy.
Whether one guy is a source and one guy is the
customer who’s selling, or the other way around,
it’s still, you’re in a conspiracy.

R.98 at 110. Mr. Roe did make a contemporaneous
objection to this statement, and the district
court told the jury that only the court could
instruct the jury as to the elements of a
conspiracy charge.
      At sentencing, the district court attributed 623
grams of cocaine to Mr. Roe. The district court
had relied on several pieces of evidence in
arriving at this amount. Timothy Weger had
testified about the amount of cocaine he saw Mr.
Roe handle. Tina Weger, Timothy Weger’s wife, had
testified about a pile of cocaine she saw Mr. Roe
weighing in the Weger basement and had made hand
motions to demonstrate the size of the pile.
Further, the Government had introduced evidence
that the cocaine it took from the Weger house was
45% pure and evidence of empty bottles found in
the house that had contained 10 ounces of
inositol, a cocaine cutting agent. From the
purity of the cocaine and the amount of inositol
used, the district court determined that over a
pound of cocaine was involved in the conspiracy.


II

DISCUSSION

A.

      Mr. Roe’s first contention is that the district
court improperly admitted evidence of his 1989
conviction for conspiracy to distribute cocaine.
Federal Rule of Evidence 404(b) allows the
admission of evidence of other crimes, wrongs, or
acts under certain circumstances./1 For evidence
to be admissible under Rule 404(b), it must meet
four requirements:

(1) the evidence is directed toward establishing
a matter in issue other than the defendant’s
propensity to commit the crime charged; (2) the
evidence shows that the other act is similar
enough and close enough in time to be relevant to
the matter in issue; (3) the evidence is
sufficient to support a jury finding that the
defendant committed the similar act; and (4) the
probative value of the evidence is not
substantially outweighed by the danger of unfair
prejudice.

United States v. Asher, 178 F.3d 486, 492 (7th
Cir.), cert. denied, 120 S. Ct. 359 (1999);
United States v. Brooks, 125 F.3d 484, 499-500
(7th Cir. 1997). We review the district court’s
decision to admit evidence pursuant to Rule
404(b) for an abuse of discretion. See United
States v. Robinson, 161 F.3d 463, 466 (7th Cir.
1998), cert. denied, 119 S. Ct. 1482 (1999);
United States v. Smith, 103 F.3d 600, 602 (7th
Cir. 1996).

      Mr. Roe argues first that the district court did
not properly engage in the four-part inquiry
required, and therefore that it has abused its
discretion. See United States v. Nagib, 56 F.3d
798, 806-07 (7th Cir. 1995). It is true that the
district court’s order does not discuss
explicitly all four factors. On this record,
however, we do not believe that the district
court abused its discretion. The district court’s
post-trial clarifying order gives us a sufficient
basis for appellate review.

1.

      First, we must consider whether the evidence was
directed toward establishing a matter in issue
other than Mr. Roe’s propensity to commit
cocaine-related crimes. The district court, in
its post-trial order, said that the earlier
conviction showed Mr. Roe’s motive for not having
drug paraphernalia at his house. It added that
the conviction also helped to explain "the
unusual fact that [Mr. Roe] did not put any trash
out at the curb in front of his residence for
collection by municipal crews." R.70 at 2. Mr.
Roe had admitted on cross-examination that his
prior conviction for cocaine distribution taught
him not to keep drug paraphernalia at his
residence.

      We believe the district court fairly
characterized the absence of cocaine at Mr. Roe’s
house as a matter at issue. As part of his case,
Mr. Roe offered testimony from Madison Police
Department Detective Rolly Squire, who said that
no drug paraphernalia was ever found at Mr. Roe’s
house. Squire also testified that police officers
were instructed to search Mr. Roe’s trash, but
that Mr. Roe never put out any trash. The prior
conviction was relevant in explaining Mr. Roe’s
motive for not leaving any trash on the curb.

2.

      Second, we must consider whether the acts were
similar enough and close enough in time. The
district court described the prior conviction as
being for "essentially the same conduct." R.70 at
2. Mr. Roe correctly points out that the district
court’s order did not address the issue of the
time lag between the cases. However, in upholding
the exercise of discretion by district courts, we
have allowed the admission of Rule 404(b)
evidence with greater temporal gaps than the one
at bar. See United States v. Tringali, 71 F.3d
1375, 1379 (7th Cir. 1995) (1984 cocaine
trafficking conviction introduced at trial for
drug deals in 1994); United States v. Wimberly,
60 F.3d 281, 285 (7th Cir. 1995) (child
molestation conviction 13 years earlier).
Therefore, we decline to find an abuse of
discretion in the decision to admit evidence of
the 1989 conviction in a trial for offenses
allegedly committed in 1996.

3.

      As for the third element, Mr. Roe admits that he
was convicted of a crime. His argument on this
point is that the Government did not establish
the exact facts surrounding the earlier
conviction. In this case, the fact of conviction
is all that is necessary to show that Mr. Roe had
a reason to keep drug paraphernalia out of his
house. The desire to act in a manner calculated
to avoid a second conviction for distributing
cocaine would not be dependent on the details
underlying the prior conviction. Because the
conviction itself is undisputed, we do not find
error on this ground. See Tringali, 71 F.3d at
1379 (finding third factor satisfied because
defendant was "actually convicted").

4.

      Finally, the district court balanced, under
Federal Rule of Evidence 403, the probative value
of the evidence against its potential for unfair
prejudice. The district court acknowledged that
the similarity of the 1989 conviction to the
instant proceeding would be prejudicial, but
found that its probative value outweighed the
prejudice. "A district court’s Rule 403 balancing
is afforded a special degree of deference: only
in an extreme case are appellate judges competent
to second-guess the judgment of the person on the
spot, the trial judge." United States v. Robbins,
197 F.3d 829, 843-44 (7th Cir. 1999) (quoting
United States v. Dillard, 43 F.3d 299, 305 (7th
Cir. 1994)). The district court explained the
probative value of the evidence, and we share its
view that the evidence was in fact probative. We
shall not second-guess the district court’s
decision that the probative value of this
evidence outweighed any unfair prejudice to Mr.
Roe.

      In conclusion, Mr. Roe’s prior conviction
satisfied all four of the required elements under
Rule 404(b). In evaluating a district court’s
decision to admit evidence under Rule 404(b), we
accord the district court’s decision great
deference. See Asher, 178 F.3d at 494; United
States v. Stevenson, 942 F.2d 1111, 1117 (7th
Cir. 1991); United States v. Parkin, 917 F.2d
313, 317 (7th Cir. 1990). In this case, the
district court did not abuse its discretion in
admitting the evidence of Mr. Roe’s prior
conviction.

B.

      Mr. Roe also claims reversible error because of
two statements made by the prosecutor at closing
argument. To evaluate this claim, we first must
look at the remarks in isolation to determine if
they were improper. See United States v. Brisk,
171 F.3d 514, 524 (7th Cir.), cert. denied, 120
S. Ct. 150 (1999); United States v. Lovelace, 123
F.3d 650, 655 (7th Cir. 1997), cert. denied, 522
U.S. 1132 (1998). If they were improper, we
examine them in light of the record as a whole,
to determine whether the defendant was deprived
of a fair trial. See Brisk, 171 F.3d at 529;
Lovelace, 123 F.3d at 655. We review the district
court’s decision that the defendant was not
deprived of a fair trial for an abuse of
discretion. See United States v. Miller, 199 F.3d
416, 422 (7th Cir. 1999); United States v.
Rivera, 153 F.3d 809, 814 (7th Cir. 1998). When
the defendant has failed to object
contemporaneously to the remarks, we review only
for plain error. See Rivera, 153 F.3d at 814;
United States v. Rose, 12 F.3d 1414, 1422 (7th
Cir. 1994).

1.

      The first statement that Mr. Roe claims is
erroneous is one to which he did not object at
trial, and therefore our review is for plain
error. Mr. Roe, in his brief to this court,
claims that the prosecutor misstated the law by
telling the jury "that all the government had to
show to establish the conspiracy was ’[t]hat
there was something going on between those two men.’"
Appellant’s br. at 15 (quoting R.98 at 57).

      At the outset, it is important to evaluate the
prosecutor’s remark in context. The complete
statement made by the prosecutor was as follows:

First of all, what you’ve got on the ELMO there
are the elements. That’s the jury instruction
that Judge Crabb is going to read to you. There’s
two elements in a conspiracy. One, the government
has to prove that the conspiracy, as we charted
it in the Indictment, existed. Basically what we
have to do is prove to you that there was an
agreement. That there was something going on
between these two men, an agreement. That’s the
first thing we have to do. The second thing we
have to do is show that the defendant knowingly
became a member of that conspiracy with an intent
to further it. We have to show membership or
joining in the conspiracy.

R.98 at 57. The prosecutor told the jury that the
first element of the conspiracy was met by an
agreement between Weger and Mr. Roe; the second
element was met by Mr. Roe’s knowingly joining
the conspiracy with an intent to further its
aims. There was no misstatement of the law. We
have explained the elements of a conspiracy under
21 U.S.C. sec. 846 as follows:

In order to prove a conspiracy conviction, the
government must provide substantial evidence that
a conspiracy existed and that the defendant
knowingly agreed to join that conspiracy. The
government may establish each element of a
conspiracy through circumstantial evidence. With
respect to the first element, an agreement, the
government need not establish a formal agreement
to conspire.
United States v. Turner, 93 F.3d 276, 281-82 (7th
Cir. 1996) (citations omitted and emphasis
added). The prosecutor’s statement was consistent
with the law of conspiracy as explained by this
court. Therefore, these remarks were not
improper.

2.

      The second remark that Mr. Roe claims was
erroneous is one to which he did object at trial.
We thus review the district court’s decision not
to grant a mistrial based on this comment for an
abuse of discretion. We repeat the comment made
by the prosecutor:

Last point. Mr. Roe got up there and did a big
deal about basically what was a role reversal.
"I’m not the source. I’m the customer. Tim’s the
source." It’s total poppycock, but believe it if
you will. He’s still guilty. Just reversing the
roles doesn’t get you out of the conspiracy.
Whether one guy is a source and one guy is the
customer who’s selling, or the other way around,
it’s still, you’re in a conspiracy.

R.98 at 110. Mr. Roe argues that, because his
defense was that he was merely a customer of
Weger’s, this statement, which he says is a
misstatement of the law, unfairly prejudiced him
before the jury.

      This remark was not a misstatement of the law.
The two actors in the final sentence quoted are a
"source" and "the customer who’s selling." Fairly
read in its entirety, the prosecutor’s statements
did not imply that a mere customer was a member
of a conspiracy, only the customer of a source
who then re-sells to others. In effect, the
prosecutor said that, even if Mr. Roe was not
Weger’s source--as Weger had testified he was--
Mr. Roe could still be found guilty of a
conspiracy if Mr. Roe purchased cocaine from
Weger for resale to others, rather than for
personal use. Although the simple act of buying
cocaine does not create a conspiracy between a
buyer and a seller, a conspiracy may be found
when the seller understood that the buyer
intended to resell the drugs to others. See
United States v. Brack, 188 F.3d 748, 760 (7th
Cir. 1999).

      Although this remark was not improper, we also
note that the district court acted quickly to
remedy any confusion that might have arisen. When
the statement was made, the district court
responded to Mr. Roe’s objection by telling the
jury that it would provide proper instructions on
the elements of conspiracy. Mr. Roe has not
argued to this court that any of the jury
instructions were erroneous. We do not believe
that any statements by the prosecutor in closing
arguments unfairly prejudiced Mr. Roe.

C.

1.

      Mr. Roe also submits that the district court
overstated the amount of cocaine attributable to
him. The district court held Mr. Roe responsible
for 623 grams (21.8 ounces) of cocaine. Under 21
U.S.C. sec. 841(b)(1)(B)(ii)(I), the statutory
minimum sentence for distributing more than 500
grams of cocaine is 5 years, but that minimum is
increased to 10 years if the offender has a
previous conviction. Thus, when the district
court found Mr. Roe responsible for 623 grams of
cocaine, it sentenced him to 10 years’
imprisonment.

      The district court’s determination of the amount
of cocaine attributable to Mr. Roe is ultimately
a factual one that we shall review only for clear
error. See United States v. Jean, 25 F.3d 588,
598 (7th Cir. 1994). Such a review is not,
however, a toothless one. We cannot uphold a
sentence based on unreliable information. See
United States v. Humphrey, 154 F.3d 668, 671 (7th
Cir. 1998); United States v. Burke, 148 F.3d 832,
836 (7th Cir.), cert. denied, 119 S. Ct. 572
(1998). Testimony from informants who are former
drug addicts must be subject to special scrutiny.
See United States v. Beler, 20 F.3d 1428, 1432
(7th Cir. 1994). On the other hand, in our
assessment, we must remain aware of the practical
difficulties that confront the district court as
it makes this crucial determination. In
determining the amount of contraband involved,
the district court often must deal with evidence
that is stated with less than laboratory-standard
precision. Rather than rely upon the precise
tools of the scientist to ascertain the amount
involved, the district court must rely on its own
skills of critical assessment of testimonial and
circumstantial evidence. Here, our cases
demonstrate that an articulated methodology for
assessment, combined with thoroughness in the
execution of that methodology, usually signal
that the district court has made the sort of
reasoned decision that ought not be disturbed on
appeal. As we noted in United States v. Duarte,
950 F.2d 1255 (7th Cir. 1991), although the
district court’s determinations need not "emulate
the precision of Newtonian physics," they also
may not be based on "nebulous eyeballing." Id. at
1265.

      Our review of the record convinces us that the
district court well understood the issues that
needed to be resolved in determining the amount
of cocaine that ought to be attributed to Mr.
Roe. It articulated a decisional matrix for
assessing those issues and then carefully
assessed the evidence before the court. The
initial presentence report recommended a finding
that Mr. Roe had dealt 623.7 grams of cocaine
based on two separate factual components: (1)
Timothy Weger had been held responsible for 170
grams at his own sentencing, and had testified
that Mr. Roe had delivered that cocaine to him
over the course of six months; and (2) Weger also
testified that, in early April, he saw Mr. Roe
repackaging an additional pound of cocaine./2
The district court carefully considered the
evidence submitted with respect to both of these
components. Central to the district court’s
analysis of both of these components was the
testimony of Timothy Weger. The court did not
accept that testimony blindly; it candidly noted
that there were some discrepancies and, in
evaluating those discrepancies, sought
corroboration in other circumstantial evidence.

2.

       With respect to the 170 grams that Timothy Weger
said Mr. Roe had delivered over a six-month
period, the court noted that Weger had been
unable to remember exactly how much cocaine he
had in his possession at different times. The
court therefore considered other circumstantial
evidence with respect to that amount. It
considered Tina Weger’s testimony that she "saw
Mr. Roe weighing out a quantity of cocaine
sufficient to fill a soft drink can in December."
R.101 at 57. In a later order, the court also
described Tina Weger as having seen Mr. Roe with
a "’Coke can’ sized pile of cocaine." R.87 at 2.
Mr. Roe now argues that the district court
incorrectly recalled the trial testimony of Tina
Weger.

      At trial, Tina Weger, when asked how much
cocaine she saw Mr. Roe weighing on a scale in
the basement of her home, made a hand gesture
that the court described as holding her thumbs
and first fingers together. Tina Weger then
responded, "It was more. It filled the whole
scale. I don’t know how big it is. I don’t know
how big, but it looked--or from here I mean it
looked like it was a nice-sized pile." R.96 at
24. The district court used terminology different
from Tina Weger’s in describing the amount of
cocaine. That difference does not make its
finding of facts clearly erroneous. "We defer to
the sentencing judge’s credibility determinations
because the presiding judge while listening to
the witnesses’ testimony is in the best position
to observe, weigh, and evaluate a witness’ verbal
as well as nonverbal behavior." United States v.
Pitz, 2 F.3d 723, 727 (7th Cir. 1993); see also
United States v. Magana, 118 F.3d 1173, 1205 (7th
Cir. 1997) (quoting Pitz), cert. denied, 522 U.S.
1139 (1998). The district court, after observing
Tina Weger’s gesture and seeing the scale to
which she was referring, simply described in
graphic terms what it had seen.

      In determining the extent of Mr. Roe’s cocaine
dealing between November 1995 and April 1996, the
district court also found corroborative the
number of baggies for packaging cocaine that had
been found in Timothy Weger’s trash. Weger had
testified that baggies were used to package
either 1/16 ounce or 1/8 ounce quantities. The
district court concluded that, even if all the
baggies were used to package the lesser amount,
three ounces (84 grams) would have been packaged
in a two-month time period. This rough
calculation, standing alone, would indeed be a
thin reed upon which to support a quantity
determination. Here, however, the court simply
employed this observation as a rough measuring
stick of the volume of cocaine involved in the
transactions in an effort to corroborate the
testimony of Weger. We cannot say that the
district court abused its discretion in using
this approach. Nor can we say that the district
court was wrong in its estimation that the 170
gram figure was "extremely conservative." R.101
at 56-57.

3.

      The district court similarly engaged in a
careful process of evaluating Timothy Weger’s
testimony concerning the amount of cocaine
possessed by Mr. Roe on April 4. It noted that
there were some inconsistencies. When asked at
trial how much cocaine Mr. Roe had on the night
of April 4, 1996, Weger said, "I don’t know the
exact amount." R.72 at 37-38. However, at both
the trial and at the sentencing hearing, he
testified that, on April 4, he saw Mr. Roe with
two bags of cocaine that he would estimate
weighed four ounces, two bags that he estimated
weighed two ounces, seven or eight 1/8 ounce
bags, and one ounce left at the end of the night
for Weger’s personal use. As Weger acknowledged,
there was an inconsistency between his trial
testimony and his testimony at the sentencing
hearing: At trial, he stated that on April 4 he
saw Mr. Roe with three "one-ouncers"; at the
sentencing hearing, he said he saw Mr. Roe with
only one. Including the ounce left for Weger, the
sum total of the cocaine involved would be a
total of either 17 ounces (485.7 grams) or 15
ounces (428.6 grams), depending on which version
is credited. The district   court finally
characterized Mr. Weger’s   testimony as
"unwavering" that "he saw   approximately 16 ounces
of cocaine bagged up that   evening." R.101 at 58
(emphasis added).

      As it had with respect to the quantity of
cocaine involved in the six month period, the
court took into account corroborating evidence in
determining the appropriate assessment of Weger’s
testimony. It credited Timothy Weger’s statements
that Mr. Roe had possessed 1 pound (457.1 grams)
in his basement on April 4. The court noted that
Weger was accustomed to seeing a variety of
smaller quantities of cocaine and, therefore,
would be able to estimate accurately the amount
of cocaine in a larger pile. Additionally, the
court pointed out that approximately 10 ounces of
inositol had been used in preparing the cocaine.
Mr. Roe does not dispute that the cocaine found
at the Weger residence was 45% pure. A cocaine
mixture of 45% purity containing 10 ounces of
inositol would weigh 18.18 ounces, or 519.48
grams./3 We think the district court was
entitled to conclude that it was "practically
indisputable" that there was "at least a pound of
cocaine involved." Id.

      In determining the amount of cocaine involved in
the conspiracy, the district court credited
Timothy Weger’s testimony after a thoughtful
examination of its contents and an evaluation of
the corroborating evidence. In proceeding in this
manner, it employed an acceptable methodology in
cases where there may be questions about the
credibility of an addict witness. See United
States v. Taylor, 72 F.3d 533, 544 (7th Cir.
1995). On appellate review, we shall disturb a
sentence only if we cannot find any evidence in
the record to support it and are left with a
definite and firm conviction that a mistake has
been made. See United States v. Joiner, 183 F.3d
635, 640 (7th Cir. 1999); United States v. Gabel,
85 F.3d 1217, 1221 (7th Cir. 1996). The evidence
in this case is sufficient to support the
district court’s finding.

Conclusion
      For the foregoing reasons, the judgment of the
district court is affirmed.

AFFIRMED


/1 The Rule reads as follows:

Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity therewith. It may, however,
be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the
accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b).

/2 A later revision to the presentencing report
recommended that Mr. Roe be held responsible for
only 396.9 grams, but that revision offered no
explanation for its new conclusion and the
district court did not rely upon it.

/3 Mr. Roe suggests that the cocaine originally
delivered to Weger’s house may not have been 100%
pure; he points out that there is no testimony
that the cocaine delivered to the house was of
high purity. However, if we assume that the
cocaine to which the 10 ounces of inositol were
added was not 100% pure, this consideration only
raises the amount of cocaine mixture involved in
the conspiracy. As we noted above, assuming that
the inositol was added to 8.8 ounces of 100% pure
cocaine, adding 10 ounces of inositol to create a
mixture of 45% purity creates a cocaine mixture
of 18.18 ounces. Reducing the purity of the
original cocaine to which the inositol was added,
but maintaining the acknowledged constants of 10
ounces of inositol and a final mixture that is
45% pure, increases the weight of the original
cocaine mixture.
