                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 04-1507 & 04-1535
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

RODNEY MCLEE and
VICKI MURPH-JACKSON,
                                     Defendants-Appellants.
                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 02 CR 635—Charles P. Kocoras, Judge.
                          ____________
 ARGUED FEBRUARY 22, 2005—DECIDED FEBRUARY 2, 2006
                   ____________


  Before KANNE, WOOD, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. A jury convicted Rodney McLee
of cocaine conspiracy and related drug-trafficking crimes
and also two firearms offenses. McLee’s wife and
codefendant, Vicki Murph-Jackson, was convicted with him
on the drug charges. Both received lengthy prison sen-
tences. Their appeals have been consolidated, and numer-
ous trial and sentencing errors are alleged. McLee argues
the evidence was insufficient to convict him on the firearms
charges. Both defendants contend that certain evidence
predating the conspiracy was erroneously admitted, that
their right of cross-examination was erroneously restricted,
and that the government’s wiretap evidence should have
2                                  Nos. 04-1507 & 04-1535

been excluded. They also argue that factual findings made
by the district court at sentencing were clearly erroneous.
Finally, McLee challenges his sentence under United States
v. Booker, 543 U.S. 220 (2005). We affirm the defendants’
convictions and order a limited remand as to both defen-
dants in accordance with United States v. Paladino, 401
F.3d 471 (7th Cir. 2005).


                     I. Background
  Trial evidence established that McLee and Murph-
Jackson were intimately involved in all aspects of a large-
scale cocaine distribution operation run from the south side
of Chicago by a man named Kevin Turner. Turner and other
subordinate members of the conspiracy were indicted along
with McLee and Murph-Jackson. Turner pleaded guilty to
the conspiracy charge and testified against McLee and
Murph-Jackson under the terms of his plea agreement.
Others charged in the conspiracy— Steve Brown, Dymica
Hilt, and Kevin Turner’s brother Prince Turner, Jr.—also
entered into plea agreements with the government and
testified for the prosecution.
  Testimony established that upon Turner’s release from
federal prison on drug-related charges in 1996, he quickly
resumed his previous occupation as a seller of cocaine.
Turner enlisted the services of his friend McLee and later
McLee’s girlfriend and future wife, Murph-Jackson, both of
whom participated in the operation by delivering drugs to
customers, packaging and storing drugs for later delivery,
and collecting money from customers. Specifically, Turner
testified that he would purchase large quantities of cocaine
from his suppliers—as much as 50 kilograms a month—and
store it at the home occupied by McLee and Murph-Jackson.
McLee and Murph-Jackson, sometimes assisted by others,
would weigh and divide the cocaine into smaller amounts
and package it for future sale. McLee also cooked cocaine
Nos. 04-1507 & 04-1535                                     3

into crack. When Turner arranged a sale with a purchaser,
he would contact McLee and either McLee or Murph-
Jackson would deliver the drugs, collect the money, and
hold it until arrangements could be made for its trans-
fer to Turner.
  McLee and Murph-Jackson were paid a salary by Turn-
er for their services. McLee was originally Turner’s right-
hand man and the person trusted to have control over the
cocaine during the period between purchase and sale.
However, toward the end of 1998, when Turner became
convinced that McLee was skimming cocaine for sale to
his own customers, McLee was demoted from his “man-
agerial” position and replaced in this capacity by Murph-
Jackson. From this point until the conspirators were
arrested in 2002, McLee still packaged drugs, made deliver-
ies, and collected money, but did so under the supervision
of his wife.
  Two or three times a week from late 1997 to July of 1999,
Turner sold cocaine in a wholesale fashion to another drug
dealer named Vernon Everett. Everett testified that on
some occasions McLee would deliver cocaine he had ordered
from Turner, often accompanied by Murph-Jackson. On
other occasions Everett would travel to various locations
controlled by Turner where Everett would witness McLee
weighing out the drugs and/or standing guard over the
process with a handgun tucked in the waistband of his
pants. On one occasion, Everett and Turner met at a
designated location and it was Murph-Jackson, unaccompa-
nied by McLee, who showed up to deliver the kilogram of
cocaine Everett had ordered.
  In an event not directly related to the drug conspiracy, on
May 19, 1998, Officer Ramirez of the Chicago Police
Department was dispatched to a location on the south
side of the city in response to a complaint of a man wielding
a handgun. When the officer arrived on the scene, he saw
4                                   Nos. 04-1507 & 04-1535

about ten men congregated together on the sidewalk. One
of the men, later identified as McLee, held what the officer
described as a .45-caliber, blue steel handgun in his hand.
When McLee saw the squad car approaching, he put the
gun into the waistband of his pants and fled through a
series of residential backyards. McLee was the only one
of the group to flee upon seeing the police.
   Officer Ramirez drove around the block and caught up
with McLee less than a minute after he had fled. The officer
ordered McLee to the ground and searched him but did not
find a gun. After McLee had been handcuffed and trans-
ferred to the custody of another officer, Ramirez searched
the path by which McLee had fled and discovered a loaded
.45 handgun lying in the grass in one of the yards McLee
had crossed during his flight. At the time of this incident,
McLee was a convicted felon. Turner testified that he had
been with McLee earlier that same day and McLee was
carrying a black gun with a brown handle that Turner had
given to him. Turner testified that McLee “often” carried a
firearm on drug transactions “to secure himself and secure
me.”
  At some point during 2001, Murph-Jackson and McLee
separated and McLee moved out of the couple’s home in the
Chicago suburb of Calumet City, leaving Murph-Jackson
and her children as the only regular daily residents of the
home. In the summer of 2001, a confidential informant
identified Kevin Turner as a drug trafficker to agents
employed by the Drug Enforcement Administration
(“DEA”). Using information provided by the informant, the
DEA made three controlled cocaine buys from Turner in
2001.
  Agents then applied for and received court authoriza-
tion to wiretap two telephones used primarily by Turner. A
total of 1,800 calls were subsequently intercepted, and 51 of
those calls were presented to the jury at trial, both
Nos. 04-1507 & 04-1535                                       5

in transcribed and audio forms. DEA Special Agent
Wise testified that the intercepted telephone calls were
monitored by DEA agents and simultaneously recorded onto
magneto-optical disks located at the DEA offices in down-
town Chicago. When the period of wiretap authorization
expired, the disks were placed into an evidence bag, sealed,
and delivered to the Chief Judge of the District Court for
the Northern District of Illinois.
  Law enforcement authorities brought an end to Kevin
Turner’s drug-dealing enterprise on February 21, 2002.
On that day a Chicago police officer working with the
DEA in the ongoing investigation was detailed to a team
maintaining surveillance of McLee. The officer watched
McLee leave a tavern and enter a waiting vehicle driven
by Murph-Jackson. The officer then followed that vehicle for
several blocks until it parked on a city street for a rendez-
vous with three men in another car. The officer observed
McLee get out of Murph-Jackson’s car and hand a plastic
bag to the driver of the second vehicle. McLee then returned
to his wife’s car and they left the scene. Another officer in
the surveillance team followed the second car as it, too, left
the area; a third officer in a marked squad car was eventu-
ally instructed to pull the second car over. The driver was
identified as Juan Martinez. Martinez consented to a search
and police recovered the plastic bag that had been trans-
ferred by McLee. It contained $47,060 in cash. Turner later
identified Martinez as his principal supplier of cocaine
during the latter stages of the conspiracy.
  Officers were then dispatched to Murph-Jackson’s
Calumet City residence and waited there until she arrived
home. Murph-Jackson consented to a search of the home. In
the attic officers found a blue, plastic storage box containing
37 one-kilogram “bricks” of cocaine and a loaded 9mm
Beretta handgun. Officers also recovered approximately
3 kilograms of cocaine and 403 grams of crack from Murph-
Jackson’s bedroom. At trial Turner testified that he and
6                                   Nos. 04-1507 & 04-1535

McLee had delivered the blue storage container to the
Calumet City home earlier in the month. Murph-Jackson’s
fifteen-year-old daughter, however, offered conflicting
testimony on this point; she said that Turner, unaccompa-
nied by McLee, brought the blue storage box to the home.
   McLee was charged with conspiracy to deliver cocaine and
crack, possession of cocaine and crack with intent to deliver,
possession of a firearm in furtherance of a drug-trafficking
crime, use of a telephone to facilitate a narcotics offense,
and felon in possession of a firearm, contrary to 21 U.S.C.
§§ 846, 841(a)(1), 843(b), and 18 U.S.C. §§ 924(c)(1), 922(g).
Murph-Jackson was charged with the three drug crimes and
the drug-related firearms offense. McLee was convicted by
a jury on all counts. Murph-Jackson was convicted of the
drug charges but acquitted on the § 924(c) drug-related
firearms offense. McLee was sentenced to a total of 322
months in prison, and Murph-Jackson received a sentence
of 262 months.


                      II. Discussion
A. Gun Possession in Furtherance of a Drug Crime
  The jury found McLee guilty of possession of a firearm
in furtherance of a drug-trafficking offense, contrary to
18 U.S.C. § 924(c)(1) and (2). The gun in question was
the 9mm Beretta found with the cocaine in the blue storage
box in the attic of Murph-Jackson’s home. McLee argues
there was insufficient evidence to prove possession because
he was not living in the home at the time of the search and
there was no evidence that he ever had actual physical
possession of the gun.
  A challenge to the sufficiency of the evidence carries
a “daunting” burden. United States v. Hicks, 368 F.3d 801,
804 (7th Cir. 2004). The evidence is viewed in the light most
favorable to the prosecution, and the verdict must be upheld
Nos. 04-1507 & 04-1535                                     7

if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id. at 804-
05. We will overturn a conviction based upon insufficient
evidence “only if the record is devoid of evidence from which
a reasonable jury could find guilt beyond a reasonable
doubt.” United States v. Curtis, 324 F.3d 501, 505 (7th Cir.
2003).
  McLee is correct that the government presented no
evidence that he ever possessed the Beretta on his person
or that he was living in Murph-Jackson’s Calumet City
home at the time the gun was found. But neither of these
facts was necessary to a conviction on this count. Construc-
tive possession may be established through evidence
demonstrating that the defendant had the power and
intention to exercise dominion and control over the firearm,
either directly or through others. United States v. Walls,
225 F.3d 858, 864 (7th Cir. 2000); United States v. Thomas,
321 F.3d 627, 636 (7th Cir. 2003). If there was sufficient
evidence from which the jury could conclude that McLee
had the intent to exercise dominion and control over the
gun, it makes no difference that McLee was no longer living
in the home and no one testified to seeing him with the gun.
  Viewed in the light most favorable to the verdict, the
pertinent evidence adduced at trial established that
McLee and Murph-Jackson played prominent roles in the
Turner drug conspiracy, storing cocaine purchased by
Turner, packaging it, delivering the drugs to customers, and
collecting large sums of money. The evidence further
established that McLee often carried a gun in the course
of carrying out these duties as a member of the conspir-
acy. The Beretta was found in the storage box with
37 kilograms of cocaine in the attic of the home where much
of this activity was taking place. McLee, together with
Turner, had delivered the storage box to the resi-
8                                      Nos. 04-1507 & 04-1535

dence before its eventual discovery by police.1 Testimony
also established that although McLee and Murph-Jackson
were separated at the time the gun was seized, McLee
was often observed by surveillance officers coming and
going from the Calumet City home during the pertinent
time frame—including earlier in the day on which the
search was performed.
   A reasonable jury could infer from this evidence that
the gun belonged to or was controlled by either McLee or
Turner. Either inference provides a sufficient basis for
McLee’s conviction. If the jury concluded that the gun
was McLee’s, or under his control, the government had
directly proven his constructive possession of the weapon.
If the jury alternatively concluded that the gun be-
longed to Turner, or was under his control, McLee’s convic-
tion is sustainable under the Pinkerton doctrine,2 pursuant
to which a defendant may be found guilty of violating
§ 924(c) if a coconspirator possessed a gun in furtherance of
the drug conspiracy and it was reasonably foreseeable to the
defendant that his accomplice would do so. See United
States v. Chairez, 33 F.3d 823, 826-27 (7th Cir. 1994) (“If
the government proved beyond a reasonable doubt that [the
defendant] was a member of a conspiracy at the time that
it was reasonably foreseeable that a member of a conspiracy
used or carried the firearm in furtherance of the conspiracy,
then [the defendant] might be found guilty of violating
§ 924(c).”); see also United States v. Goines, 988 F.2d 750,
774 (7th Cir. 1993); United States v. Carson, 9 F.3d 576, 591


1
  Drawing inferences in favor of the verdict, and not second-
guessing the jury’s credibility determinations, we can only assume
that the jury credited Turner’s testimony that he and McLee
delivered the box together, rather than the testimony of McLee’s
stepdaughter that Turner delivered the box alone.
2
  The doctrine takes its name and derives its authority from
Pinkerton v. United States, 328 U.S. 640 (1946).
Nos. 04-1507 & 04-1535                                           9

(7th Cir. 1993). The jury was instructed as to McLee’s
potential Pinkerton liability with respect to this count of the
indictment. We conclude that the evidence was sufficient to
sustain McLee’s conviction for violating § 924(c).


B. Felon in Possession of a Firearm
   McLee’s conviction for being a felon in possession of a
firearm involves a different gun—the one Officer Ramirez
saw in McLee’s hands on May 19, 1998, and which he
recovered from a yard McLee traversed during the ensuing
foot chase. McLee challenges the sufficiency of the evidence
on this count, arguing that nothing connected him to the
specific gun recovered by Officer Ramirez.3 McLee relies
solely on a perceived discrepancy between the characteris-
tics of the firearm described and found by the officer and
Turner’s description of the gun he saw in McLee’s posses-
sion earlier on the same day.
  Turner testified that he was with McLee on the day in
question and saw McLee in possession of a “black gun with
a brown handle.” The gun recovered by Officer Ramirez and
shown to the jury was described by Ramirez as being made
of “blue steel.” This discrepancy is not enough to disturb the
jury’s verdict. Evidence is not reweighed on appeal. United
States v. Bowman, 353 F.3d 546, 552 (7th Cir. 2003).
Resolution of this sort of evidentiary inconsistency is
exclusively for the jury. Even if we indulge the assumption
that Turner’s recollection was accurate on this specific
point, there is absolutely nothing preventing a rational fact
finder from concluding that McLee had his hands on two



3
  Unlike the § 924(c) charge discussed above, a felon in possession
charge pursuant to § 922(g) may not be proven by way of
the Pinkerton doctrine of vicarious coconspirator liability.
United States v. Walls, 225 F.3d 858, 864-66 (7th Cir. 2000).
10                                      Nos. 04-1507 & 04-1535

guns on the day in question, given the testimony that
McLee regularly armed himself in connection with his role
in the drug conspiracy.
   More important is the sufficiency of Officer Ramirez’s
testimony that he observed McLee with a .45-caliber pistol
in his hand, saw McLee stick the gun in his pants and run,
observed the route by which McLee was attempting to
flee, and within minutes of McLee’s arrest found a .45-
caliber handgun along the very same route McLee had
traveled. This evidence is sufficient to sustain McLee’s
conviction for being a felon in possession of a firearm.


C. Evidence of Preconspiracy Criminal Conduct
  The indictment concerned itself with the drug-trafficking
enterprise that Kevin Turner initiated upon his release
from federal prison in 1996.4 The activity that had origi-
nally landed Turner in prison was, itself, a drug-trafficking
operation. Over the defendants’ objection, the district court
permitted Turner to offer limited testimony that McLee had
assisted him in drug-dealing activity that predated the time
frame alleged in the indictment.5 Specifically, as a prelude
to his testimony concerning the conspiracy charged in the
indictment, Turner testified that he originally started
selling cocaine in 1988, and that McLee—his friend since
childhood—had assisted him by “brokering transactions,”
“going to get customers,” and delivering money during the
period 1988-1990.


4
  Count One of the indictment charged that the conspiracy
lasted from “in or about 1996, until on or about February 21,
2002.”
5
  McLee also complains about the admission of preconspiracy
testimony offered by witnesses other than Turner, but our re-
view of the record reveals that only Turner testified to any activity
by McLee that occurred prior to 1996.
Nos. 04-1507 & 04-1535                                         11

   Immediately prior to this line of questioning, the court
instructed the jury as follows: “I will instruct the jury
that this is prior to the period charged in the indictment.
But you may consider it as background information. And its
relevance has to do with the relationship of the parties, but
it is not directly relevant to the charges in this case.” The
court also included the following instruction in its closing
instructions to the jury: “You have heard evidence of acts of
. . . Rodney McLee other than those charged in the indict-
ment. You may consider this evidence only on the question
of the relationship of the participants. You should consider
this evidence only for this limited purpose.”
  McLee argues that the admission of Turner’s testimony
was erroneous because it was not “inextricably intertwined”
with the charged offense and thus should have been
excluded as impermissible “other crimes” character evidence
pursuant to FED. R. EVID. 404(b).6 The district court did not
abuse its discretion in admitting this testimony. United
States v. Hite, 364 F.3d 874, 881 (7th Cir. 2004) (evidentiary
rulings are reviewed for abuse of discretion). Evidence of
uncharged criminal activity does not implicate the charac-
ter/propensity prohibition of Rule 404(b) if the evidence is
“intricately related” to the facts and circumstances of the
charged offense. United States v. Gougis, Nos. 04-1345, 04-
1508 & 04-1535, 2005 WL 3534195 (7th Cir. Dec. 27, 2005);
United States v. Lahey, 55 F.3d 1289, 1295 (7th Cir. 1995);
United States v. King, 126 F.3d 987, 995 (7th Cir. 1997).
Evidence falls within this doctrine—also referred to as the
“inextricably intertwined” doctrine—if it helps to complete


6
  FED. R. EVID. 404(b) provides in pertinent part: “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, knowl-
edge, identity, or absence of mistake or accident . . . .”
12                                   Nos. 04-1507 & 04-1535

the story of the crime on trial, if its absence would create a
chronological or conceptual void in the story of the crime, or
if it is so blended or connected that it incidentally involves,
explains the circumstances surrounding, or tends to prove
an element of the charged crime. Gougis, 2005 WL 3534195,
at *5; Hite, 364 F.3d at 881; United States v. Ojomo, 332
F.3d 485, 489 (7th Cir. 2003); United States v. Senffner, 280
F.3d 755, 764 (7th Cir. 2002).
  Here, Turner’s testimony helped to complete the story
of how the conspiracy between Turner and McLee began
and filled what would otherwise have been a chron-
ological and conceptual void in the jury’s understanding
of the genesis and nature of their relationship. The evidence
explained why Turner anointed McLee as the most trusted
member of his inner circle almost immediately upon being
released from federal prison and reentering the drug trade.
The court’s limiting instructions, both before the jury heard
this testimony and at the close of the case, properly circum-
scribed the purpose for which the evidence was admitted.
Admission of this evidence was not error.


D. Admission of Hearsay from Nonconspirators
  McLee and Murph-Jackson argue that the district court
erred in admitting testimony under the exception to the
hearsay rule for statements made by coconspirators. FED. R.
EVID. 801(d)(2)(E).7 This argument is woefully undeveloped.
McLee cites numerous pages of the trial transcript and then
baldly asserts that somewhere on these pages we may find
hearsay that either predates the conspiracy or that came



7
  The entirety of the argument section of Murph-Jackson’s brief
states: “All issues raised and arguments presented in his brief
by co-defendant, Rodney McLee, applicable to this co-defen-
dant, Vicki Murph-Jackson are hereby adopted.”
Nos. 04-1507 & 04-1535                                       13

from witnesses who were not coconspirators. He makes no
attempt to identify the particular statements he would like
to put at issue or how any particular statement was prejudi-
cial to his defense. He wraps up his one-page argument by
acknowledging that standing alone, admission of this
supposed hearsay was harmless, but that when viewed in
combination with Turner’s preconspiracy testimony dis-
cussed above, the hearsay created “a false image about the
amount of drugs McLee was involved in.”
  The weakness of this argument is difficult to over-
state. First, “it is not the obligation of this court to research
and construct the legal arguments open to parties, espe-
cially when they are represented by counsel.” United States
v. Holm, 326 F.3d 872, 877 (7th Cir. 2003). In any event,
our cursory examination of the transcript pages cited by
McLee reveals that on none of these pages is any witness
testifying about either McLee or Murph-Jackson. Nor was
there any objection, leaving only plain error review. We
decline to undertake that analysis on so undeveloped an
argument.


E. Limitation on Cross-Examination
  One of those originally charged in the indictment was
Prince Turner, Sr., father of Kevin and Prince Turner, Jr.
Approximately five weeks prior to trial, the government
dropped all charges against Prince Turner, Sr. Two weeks
later, the government moved in limine to preclude the
defendants from “making any arguments based on the
government’s decisions not to charge other individuals
who conceivably could have been charged and to dismiss the
indictment as to Prince Turner, Sr.” The defendants
apparently did not respond to this motion. Based on events
that transpired during the trial, it appears that the motion
was granted, although the parties have not provided us
with any record of the court’s ruling. During cross-examina-
14                                   Nos. 04-1507 & 04-1535

tion of Prince Turner, Jr.—who, like his brother Kevin,
pleaded guilty and testified pursuant to a plea agree-
ment—the district judge made the following statement at a
sidebar conference:
     And I want to make it plain now to everybody if there
     is any mention before this jury about his father’s
     charges and later dismissal, I will hold that lawyer in
     contempt. That is off limits based on a pretrial ruling.
     We are not going to deviate from that. And these
     questions do not elicit any additional probative value as
     to his motive and bias and court the danger that we are
     going to get into his father’s case. It is entirely proper
     to ask, as has been asked by counsel, about his father’s
     participation and did he do this and do that. There is
     nothing wrong with that. But the charges that were
     dismissed are decisions by the U.S. Attorney’s office and
     do not add anything to this case and are not properly
     before this jury.
  McLee and Murph-Jackson argue on appeal that the
district court inhibited their right to confront the witnesses
against them about a possible motivation for their testi-
mony—specifically, they suggest that Kevin and Prince
Turner, Jr., agreed to plead guilty and testify in exchange
for the dismissal of charges against their father. The
government responds that the charges against Prince
Turner, Sr., were dismissed before the Turner brothers
decided to plead guilty and cooperate with the prosecution,
and there is not a shred of evidence from which to infer any
connection between the dismissal of the charges and their
agreement to testify.
  The Sixth Amendment guarantees a defendant the
right to cross-examine witnesses, and “the exposure of a
witness’ motivation in testifying is an important function of
the constitutionally protected right of cross-examination.”
Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).
Nos. 04-1507 & 04-1535                                   15

However, the right of cross-examination is not unfettered,
and trial judges have broad discretion to impose reasonable
limits on cross-examination based on concerns about
“harassment, prejudice, confusion of the issues, the wit-
nesses’ safety, or interrogation that is repetitive or only
marginally relevant.” United States v. Cameron, 814 F.2d
403, 406 (7th Cir. 1987) (quoting Van Arsdall, 475 U.S. at
679). Moreover, we have held that once a witness has been
exposed through cross-examination as having a motive to
lie, a district court enjoys greater freedom to limit cross-
examination that merely seeks to add additional layers of
motivation to those already established:
    [O]nce this core function [of the Sixth Amendment] is
    satisfied by allowing cross-examination to expose a
    motive to lie, it is of peripheral concern to the Sixth
    Amendment how much opportunity defense counsel gets
    to hammer that point home to the jury. The trial court
    may preclude “cumulative and confusing cross-examina-
    tion into areas already sufficiently explored to permit
    the defense to argue personal bias and testimonial
    unreliability.”
    ....
    “When reviewing the adequacy of a cross-examination,
    the question is whether the jury had sufficient infor-
    mation to make a discriminating appraisal of the
    witness’s motives and bias.”
United States v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994)
(quoting United States v. Robinson, 832 F.2d 366, 373 (7th
Cir. 1987) and United States v. DeGudino, 722 F.2d 1351,
1354 (7th Cir. 1983)).
  Here, there was no shortage of cross-examination expos-
ing the Turner brothers’ motive to lie. The jury heard
exhaustive detail about the brothers’ plea agreements and
knew that those plea bargains could have influenced them
to testify for the prosecution in an effort to obtain more
16                                  Nos. 04-1507 & 04-1535

favorable sentencing recommendations. Kevin Turner was
questioned about his agreement to plead guilty and testify
in order to avoid a possible life sentence. The defense was
permitted great leeway to ask, repeatedly and in various
ways, whether Turner would “do anything”—including give
false testimony—to avoid the possibility of life in prison.
The same testimony was elicited from Prince Turner,
Jr.—that he struck a deal to testify as a means of eliminat-
ing the possibility of life imprisonment. The jury had more
than enough information to make a “discriminating ap-
praisal” of the Turner brothers’ motives for testifying
against McLee and Murph-Jackson.
  Given that the possible biases of Kevin and Prince
Turner, Jr., were exposed and explored, the district court
was within its discretion to exclude evidence of the
U.S. Attorney’s charging decisions regarding their father.
There is no evidence suggesting a link between the dis-
missal of the charges against the father and the plea
agreements of the sons; any inference of bias on this basis
would have been entirely speculative. If the defense had
been permitted to invite such speculation by the jury, the
prosecution may well have felt compelled to present evi-
dence explaining its decision to dismiss the charges against
Prince Turner, Sr.—a potentially misleading diversion the
district court justifiably chose to avoid.


F. Necessity of Wiretaps
  Prior to trial, McLee and Murph-Jackson moved to
suppress the evidence obtained from wiretaps on Kevin
Turner’s telephones on the ground that the govern-
ment failed to show, when applying for judicial authoriza-
tion to conduct the surveillance, that the wiretaps were
“necessary” pursuant to 18 U.S.C. § 2518(1)(c). Specifically,
the defendants argued that the government had amassed
“more than enough” evidence to indict them prior to
Nos. 04-1507 & 04-1535                                        17

obtaining the wiretap order, thus rendering the wire-
tap unnecessary to the prosecution. The motion was
denied and they challenge the denial on appeal.
  The statute in question provides a checklist of informa-
tion that must be included in an application for an order
authorizing the interception of telephonic communica-
tions. Subsection (1)(c) requires: “[A] full and complete
statement as to whether or not other investigative proce-
dures have been tried and failed or why they reason-
ably appear to be unlikely to succeed if tried or to be too
dangerous.”8
   This section of the statute was not intended to ensure
that wiretaps are used only as a last resort in an inves-
tigation, but rather that they are “not to be routinely
employed as the initial step” in a criminal investigation.
United States v. Thompson, 944 F.2d 1331, 1340 (7th Cir.
1991) (quoting United States v. Giordano, 416 U.S. 505, 515
(1974)). The rule in this circuit is that the government’s
burden of establishing compliance with § 2518(1)(c) “is not
great,” and that the requirement of exhausting “other
investigative procedures” prior to obtaining a wiretap is
“reviewed in a practical and common-sense fashion.” United
States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995); United
States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988);
United States v. Anderson, 542 F.2d 428, 430 (7th Cir.
1976). To receive a wiretap order, the government need not
demonstrate that prosecution would be impossible without
it or that evidence possibly sufficient for indictment could
not conceivably be obtained through other means. Plescia,


8
  The statute goes on to state that a judge may enter an ex parte
order authorizing the interception of wire, oral, or electronic
communications if he or she finds, among other things, that
“normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(3)(c).
18                                  Nos. 04-1507 & 04-1535

48 F.3d at 1463. We have upheld the “necessity” of wiretap
orders on the basis that investigators were “having trouble
fingering other members of the conspiracy,” United States
v. Farmer, 924 F.2d 647, 652 (7th Cir. 1991), and that the
wiretaps “allowed the government to ascertain the extent
and structure of the conspiracy.” Plescia, 48 F.3d at 1463.
A finding of necessity is reviewed for abuse of discretion,
with great deference given to the determination made
by the issuing judge. Zambrana, 841 F.2d at 1329-30.
  The affidavit supporting the issuance of the wiretap order
in this case stated that traditional investigative techniques
had met with “some success” but that tapping Turner’s
telephones had become necessary because investigators had
been unable, through the use of traditional techniques, to
establish the identities of all those participating in the
conspiracy. The truth of this assertion was borne out by
subsequent events—the identity of Juan Martinez, Turner’s
primary supplier of cocaine and an indicted coconspirator,
was learned only through the intercepted telephone commu-
nications. Further, the record demonstrates that the roles
played by Murph-Jackson and Steve Brown in the conspir-
acy were revealed to investigators only after they listened
in on Turner’s telephone calls. Despite McLee’s assertion to
the contrary, the fact that the government may have been
able to indict him in the absence of evidence obtained
through the use of a wiretap does not preclude a finding of
necessity under § 2518(1)(c). The government’s demon-
strated need for a wiretap as a means of identifying all
coconspirators and the roles they occupied in the structure
of the conspiracy is sufficient for a finding of “necessity”
under the statute.


G. Admissibility of Wiretap Evidence
  In another pretrial motion, McLee and Murph-Jackson
sought to suppress the evidence obtained through the taps
Nos. 04-1507 & 04-1535                                      19

on Turner’s telephones on the basis that the government
failed to seal the original recordings of the intercepted calls,
which they claim is required by 18 U.S.C. § 2518(8)(a). The
motion was denied by the district court and the argument
is renewed on appeal.
 The statute on which the defendants’ argument is pre-
mised provides as follows:
    The contents of any wire, oral, or electronic communica-
    tion intercepted by any means authorized by this
    chapter shall, if possible, be recorded on tape or wire or
    other comparable device. The recording of the contents
    of any wire, oral, or electronic communication under
    this subsection shall be done in such way as will protect
    the recording from editing or other alterations. Immedi-
    ately upon the expiration of the period of the order, or
    extensions thereof, such recordings shall be made
    available to the judge issuing such order and sealed
    under his directions.
    ....
    Duplicate recordings may be made for use or disclo-
    sure pursuant to the provisions of subsections (1) and
    (2) of section 2517 of this chapter for investigations.
18 U.S.C. § 2518(8)(a). McLee and Murph-Jackson con-
tend that this statute requires the government to present
the district court with the “original” recordings for seal-
ing and that the recordings that were sealed in this case
run afoul of the statutory requirements because they
were not the “originals.”
  The record reflects that the intercepted phone calls in this
case were processed in the following manner: Telephone
calls being monitored by the DEA’s Chicago office—from all
ongoing wiretap investigations, not just this one—are
initially directed to a single computer hard drive located in
that office. This hard drive, according to the government’s
20                                  Nos. 04-1507 & 04-1535

terminology, is a “buffer” or “temporary holding site” for all
intercepted communications. Although the storage capacity
of the hard drive buffer is “relatively large and thus typi-
cally would not fill to capacity,” the system is designed to
overwrite previously stored audio with new audio in the
event the drive becomes filled to capacity.
  When a telephone call enters this system, the buffer: 1)
stores the actual audio of the telephone call in an encoded
form; 2) generates “session data” comprised of a session
number, date, start time, and end time; and 3) generates
“pointers” for the call, described by the government as “a
decoding map that the system can later use to decode
the encoded audio portion on the hard drive buffer.” The
hard drive buffer initially stores the session data and
pointers separately from the audio but then merges the
three pieces of information by automatically writing from
the buffer onto a magneto-optical disk. The information
on the disk is thus comprised of the encoded audio, session
data, and the pointers necessary to decode the audio. There
is no “editing or alteration function” in this system.
  The magneto-optical disks relevant to the wiretap or-
der in this investigation were presented to the district court
for sealing pursuant to the statute. McLee and Murph-
Jackson argue that § 2518(8)(a) required the government to
deliver the hard drive buffer to the court for sealing because
the buffer is the true “original recording” of the intercepted
call.
  The primary purposes of § 2518(8)(a) are to “ensure the
reliability and integrity of evidence obtained by means
of electronic surveillance” and “limit[ ] the Government’s
opportunity to alter the recordings.” United States v. Ojeda-
Rios, 495 U.S. 257, 263 (1990). As applicable to this case,
the statute requires that intercepted communications be
recorded “on tape or wire or other comparable device” in
such a way “as will protect the recording from editing or
other alterations,” and that “such recordings” be made
Nos. 04-1507 & 04-1535                                    21

available to the judge issuing the surveillance order and
sealed under his direction. Despite the strenuous efforts of
McLee and Murph-Jackson to convince us otherwise, the
word “original” appears nowhere in the statute. Moreover,
their argument ignores every detail of the procedure used
by the government for recording the intercepted calls.
  McLee argues that “anyone familiar with computers
knows that a computer hard drive leaves lasting records
that can allow a technician to decipher any alterations
or tampering” and “anyone with editing software and a
CD burner knows that alteration of a CD’s content can be
done seamlessly and with little or no trail of alteration.”
McLee presented no evidence to this effect in the district
court, and these suppositions conflict with the record
evidence regarding the sophisticated capture and pres-
ervation system used by the government. This unsupported
attempt to equate the government’s wiretap recording
system with the functions commonly used on home comput-
ers is unpersuasive. In the complete absence of any counter-
vailing evidence, we must accept the accuracy of the govern-
ment’s description of the attributes of its computer system,
including the absence of any editing or alteration function.
  McLee and Murph-Jackson assert that because the
intercepted calls are routed to the buffer prior to being
written onto the magneto-optical disk, it is the buffer, and
not the disk, that constitutes the “device” on which the
communications are recorded and must be sealed pursu-
ant to § 2518(8)(a).9 This argument ignores the fact that the
buffer is a temporary holding site for the audio portion of
the call and generates the “session data” and the “pointers”
that identify and decode the encoded audio. The magneto-


9
  The defendants do not argue that the sealed disks contained
recordings that differed in any way from the data that was
initially stored on the hard drive buffer.
22                                     Nos. 04-1507 & 04-1535

optical disk is therefore the first storage medium from
which a comprehensible call can be replayed to a listener.
In other words, even if it were possible for the hard drive
buffer to be removed from the system and sealed by the
court (a topic on which the parties do not comment), it is not
apparent that the object being sealed would be capable of
reproducing any recognizable human voices without
transfer to another medium.
  Finally, the fact that the government’s interception
system is designed to overwrite existing audio from the
buffer in the event it fills to capacity makes it clear that the
disk, not the buffer, is the secure storage medium for
intercepted recordings that must be submitted for seal-
ing under § 2518(8)(a). The motion to suppress the wire-
tap evidence was properly denied.


H. Drug Quantity Determination
  McLee argues that the district court committed clear
error when it found, for purposes of sentencing, that he was
responsible for more than 150 kilograms of cocaine and 1.5
kilograms of crack.10 Post-Booker, the clear error standard
of review continues to apply to factual findings made by the
district court for purposes of determining the applicable
advisory sentencing guidelines range. United States v.
Julian, 427 F.3d 471, 489 (7th Cir. 2005). In a drug conspir-
acy each conspirator is responsible not only for drug


10
  With respect to this issue, Murph-Jackson’s brief once again
states only that she “adopts” the arguments made by McLee to the
extent that they apply to her. The trouble here is that McLee
makes no arguments applicable to Murph-Jackson, and he ar-
gues only that the evidence against him was insufficient to
sustain the court’s drug quantity attribution. Murph-Jackson
has therefore not properly raised any argument on appeal
with respect to factual findings made in the course of sentencing.
Nos. 04-1507 & 04-1535                                     23

quantities directly attributable to him but also for amounts
involved in transactions by coconspirators that were
reasonably foreseeable to him. United States v. Paters,
16 F.3d 188, 191 (7th Cir. 1994).
  McLee’s attack on the district judge’s factual findings
is specious. The judge presided over a two-week trial in
which no fewer than four members of the conspiracy and
one major purchaser of cocaine testified at length regarding
McLee’s complete and total immersion in all aspects of a
drug-trafficking operation that purchased and distributed
between 10 and 50 kilograms of cocaine a month for a
period of approximately six years. According to
Kevin Turner, McLee was “involved in every drug trans-
action,” either in the capacity of delivering drugs, storing
drugs, packaging drugs, collecting money from customers,
delivering money to Turner, or acting as Turner’s body-
guard. Other testimony established McLee as the bag
man for the $47,060 delivery to the conspiracy’s cocaine
supplier and as a participant in the delivery of the 37
kilograms of cocaine discovered in Murph-Jackson’s attic,
the final transactions before the conspiracy was interrupted
by arrests.
  With respect to the crack amounts, Turner and Steve
Brown, another member of the conspiracy, testified that
Brown would purchase an eighth or a quarter kilogram of
cocaine per week from Turner, often delivered to Brown
by McLee, and cook the cocaine into crack. Brown testified
that in the first half of 2001 he began purchasing his
cocaine directly from McLee in quantities of a half ounce to
an ounce at a time. Turner also testified that he recalled six
or seven occasions in 1998 when he was present
and witnessed McLee cooking an eighth of a kilogram of
cocaine into crack. The evidence also established the seizure
of 400 grams of crack from Murph-Jackson’s home.
  At sentencing the district court found that McLee “was so
intricately related to the conspiracy and to the main
24                                  Nos. 04-1507 & 04-1535

conspirator, if you will, that it would be unreasonable not to
saddle him or charge him with the drugs that the evidence
suggested this conspiracy was responsible for.” This was not
clear error.


I. Mandatory Guidelines Application
  McLee and Murph-Jackson were sentenced under the now
unconstitutional mandatory sentencing guidelines system.
Booker, 543 U.S. 220. In supplemental briefing McLee
requested resentencing; Murph-Jackson did not file a
supplemental brief after the Supreme Court’s decision in
Booker. Neither preserved the issue in the district court, so
review is for plain error. Paladino, 401 F.3d at 481.
Whether the error is plain in this context depends on
whether the district court would have imposed a more
lenient sentence had the court not believed it was bound by
the guidelines. Id. at 483. Where the record is unclear on
this point, we retain jurisdiction and remand for a state-
ment of the district court’s views. Id. at 484.
  The sentences imposed in this case were at the low end of
very high guidelines ranges, and the judge made sev-
eral comments at sentencing explaining that he was
inhibited by the sentencing guidelines from imposing lesser
sentences. Regarding Murph-Jackson, the judge said: “I just
tell the family members of Ms. Murph-Jackson that what-
ever my thoughts [on sentencing] would be, if we had a
different sentencing scheme or structure, do not really
matter because I am bound to the guidelines. And there is
nothing I can do to change that.” Regarding both defen-
dants, he said: “I do not have a free hand, as I told everyone
here, and especially his family, in either Rodney’s case or
Vicki’s case. I have virtually no hand at all, if you want to
know the truth.” The court also characterized the sentences
imposed as being very long, and stated, with respect to
McLee, “I do not even pretend I am being merciful by giving
Nos. 04-1507 & 04-1535                                    25

the low end of the guideline range.” Although Murph-
Jackson did not specifically request resentencing in light of
Booker, we will order a limited remand pursuant to
Paladino for both defendants. See United States v. Murphy,
406 F.3d 857, 862 (7th Cir. 2005).
  The defendants’ convictions are AFFIRMED. We retain
jurisdiction and order a limited REMAND in accordance with
the procedure outlined in Paladino.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—2-2-06
