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

No. 02-1937
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                              v.

TIMOTHY R. STOTTS,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
           No. 99-CR-180—Lynn Adelman, Judge.
                        ____________
   ARGUED JANUARY 14, 2003—DECIDED MARCH 20, 2003
                    ____________


 Before EASTERBROOK, RIPPLE, and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. At his trial on charges of pos-
sessing cocaine base, or “crack,” with intent to distribute
and conspiracy to do the same, Timothy Stotts proposed
the following instruction to assist the jury in determining
whether he committed the crime of conspiracy:
   As a matter of law, membership in a conspiracy de-
   pends on the accused’s own acts and words. Co-conspir-
   ator statements determined to be admissible by the
   trial judge may be considered by the jury to decide
   what the defendant did and said, or to help understand
   the defendant’s acts and words, but it is only the de-
2                                                No. 02-1937

    fendant’s own acts and words upon which the jury
    can rely for evidence that the defendant was a mem-
    ber of the conspiracy.
The district court rejected Stotts’s request. It was correct
to do so.
  The proposed instruction falters in its final clause, which
closely tracks former § 5.11 of the Federal Criminal Jury
Instructions of the Seventh Circuit (1980). In United
States v. Martinez de Ortiz, 907 F.2d 629 (7th Cir. 1990)
(en banc), we held that former § 5.11 was inconsistent
with Rule 104 of the Federal Rules of Evidence and
Bourjaily v. United States, 483 U.S. 171 (1987), in that
it invited the jury to second-guess the district court’s de-
cision to admit coconspirator declarations as evidence
that the accused joined the conspiracy, and misstated the
law of conspiracy.
  Admissibility of evidence is a question for only the judge,
not the jury. Fed. R. Evid. 104(a). Out-of-court declara-
tions made by coconspirators of the accused during the
course and in furtherance of a conspiracy are not hearsay
and are admissible. Fed. R. Evid. 801(d)(2)(E). Of course,
such declarations are admissible only if the accused was
engaged in a conspiracy with the declarants, and deter-
mining whether the accused committed the crime of con-
spiracy is the province of the jury. Rule 104(b) preserves
both the proper role of the judge in determining whether
out-of-court coconspirator declarations are admissible and
the proper role of the jury in determining whether the
accused is guilty of conspiracy. Under Rule 104(b), the
district court may conditionally admit coconspirator de-
clarations if it finds by a preponderance of the evidence that
the accused was a member of the conspiracy and the
declarations were made in the course and in furtherance
of the conspiracy. Bourjaily, 483 U.S. at 175. In making
this preliminary factual determination, the district court
No. 02-1937                                                    3

is free to rely on the out-of-court declarations of the puta-
tive coconspirators. Id. at 178. Once the declarations are
so admitted, the jury’s role is to decide whether the de-
clarations, in conjunction with the rest of the evidence,
prove sufficiently that the accused committed the crime
of conspiracy. Martinez de Ortiz, 907 F.2d at 634-35.
  In addition to conflicting with Rule 104 and Bourjaily,
Stotts’s proposed instruction misstates the law. While it
is true that only the accused’s own words or acts may
be considered to determine whether he committed the
crime of conspiracy, the jury may consider properly admit-
ted statements of the accused’s coconspirators to deter-
mine what the defendant did or said, or to help under-
stand the accused’s own words or acts. United States v.
Espino, 32 F.3d 253, 259 (7th Cir. 1994); United States v.
Loscalzo, 18 F.3d 374, 383 (7th Cir. 1994); United States v.
Goines, 988 F.2d 750, 772 (7th Cir. 1993); United States v.
Brown, 940 F.2d 1090, 1094 (7th Cir. 1991); Martinez de
Ortiz, 907 F.2d at 633-35; 7th Cir. Pattern Crim. Fed. Jury
Instr. § 5.08, cmt. (b). The final clause of the proposed
instruction suggests that the jury could not consider the
out-of-court declarations of Stotts’s coconspirators as evi-
dence of his membership in the conspiracy.
  After rejecting Stotts’s proposed instruction, the district
court gave the jury this circuit’s pattern instruction on
conspiracy,1 but did not give an instruction to assist the


1
  Seventh Circuit Pattern Criminal Federal Jury Instruction
§ 5.08 provides:
      A conspiracy is an agreement between two or more per-
    sons to accomplish an unlawful purpose. To sustain the
    charge of conspiracy, the government must prove:
      First, that the conspiracy as charged in Count One existed,
    and
                                                   (continued...)
4                                                      No. 02-1937

jury in its evaluation of coconspirator declarations. Stotts
contends that he was prejudiced by the trial judge’s fail-
ure to give the jury a correct “only the acts and state-
ments” instruction, similar to the one he proposed. Because
Stotts made no objection, our review is limited to plain
error, Fed. R. Crim. P. 30(d); Jones v. United States, 527
U.S. 373, 388 (1999), meaning that we may correct a
clear or obvious error only if it affected substantial rights
and seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. United States v.
Smith, 308 F.3d 726, 743 (7th Cir. 2002).
  We have cautioned trial judges to provide sufficient
guidance to juries on the nuanced principles of conspiracy
law. See Goines, 988 F.2d at 772; United States v. Collins,
966 F.2d 1214, 1224 (7th Cir. 1992); Martinez de Ortiz, 907
F.2d at 635. We set out an illustrative instruction in
Martinez de Ortiz, supra. Although we did not mandate
its use, we suggested that trial judges give the instruction
in appropriate cases, such as where the evidence that the


1
    (...continued)
          Second, that the defendant knowingly became a member
       of the conspiracy with an intention to further the conspiracy.
        If you find from your consideration of all the evidence
      that each of these propositions has been proved beyond a
      reasonable doubt, then you should find the defendant guilty.
         If, on the other hand, you find from your consideration
      of all the evidence that any of these propositions has not been
      proved beyond a reasonable doubt, then you should find
      the defendant not guilty.
         To be a member of the conspiracy, the defendant need not
      join at the beginning or know all the other members or the
      means by which its purpose was to be accomplished. The
      government must prove beyond a reasonable doubt that the
      defendant was aware of the common purpose and was a
      willing participant.
No. 02-1937                                               5

defendant committed the crime of conspiracy is based
largely on the declarations of coconspirators. See id.
  This is not a particularly strong a case for the instruc-
tion because Stotts’s role in the conspiracy was suffi-
ciently established by more than just an out-of-court co-
conspirator declaration. The evidence was provided al-
most exclusively through the testimony of Robin Broeske,
a Special Agent with the Wisconsin Department of Jus-
tice who investigated Stotts undercover for drug traffick-
ing. A confidential informant had agreed to introduce
Broeske to Stotts through a woman known only as “Unwit-
ting Female #1” (whom we will refer to as “Jane Doe”
throughout the remainder of this opinion), in order to set
up a drug transaction. Broeske made it known through
Jane Doe that she was in the market to buy an ounce of
crack. Doe directed Broeske and the informant to drive
her and another woman known as “Unwitting Female #2”
(whose role in this case in not clear from the record) to a
house on North 21st Street in Milwaukee, Wisconsin. Once
there, Doe directed Broeske to drive to another building
on North 27th Street, where Stotts ran a legitimate busi-
ness called “Fat 4 Ever Records.” Stotts’s brother Trenton
was standing in the parking lot as they arrived. Doe
exited the car, asked Trenton if Stotts was inside, and
entered the building. Some time later she emerged from
the building and told Broeske that Stotts had agreed to
sell Broeske an ounce of crack for $1,200, that the crack
was “ready,” and that she could pick it up at another
location. Stotts himself then emerged from the building
and climbed into a car with his brother. As the two drove
away, Stotts motioned for Broeske to follow.
  They proceeded to a second house on North 21st Street.
Stotts went inside. While waiting for him to return, Broeske
began haggling with Doe over the price of the crack. Stotts
exited the house and approached Broeske‘s vehicle. Doe
announced to Stotts that Broeske wanted to see the
6                                             No. 02-1937

drugs before paying because the price was steep. Stotts
nodded his head in agreement. Stotts and his brother
then led Broeske to a house on North 29th Street. After
a brief stop, Stotts gestured for Broeske to follow him to
yet another location, this time a fortified drug house on
North 25th Street. Once there, Trenton exited his car
and instructed Broeske, the informant, and Doe to follow
him inside. Stotts stayed with Trenton’s car, moving it
down the street as Trenton and the others entered the
drug house. Once inside, Trenton placed a bag contain-
ing the drugs on a table. Broeske attempted to renegoti-
ate the price, but Trenton refused to budge. Broeske then
produced the $1,200, and Trenton instructed her to hand
the money to Doe. Doe and Trenton then took the money
to another room to count it. Once they finished, all four
left the house. As they emerged, Stotts pulled up in front
of the house to pick up his brother.
  Broeske never testified that Stotts actually or construc-
tively possessed the drugs. But because Stotts was charged
both with the substantive offense of possession with in-
tent to distribute and conspiracy, if he was a member of
the conspiracy he is vicariously liable for each substan-
tive offense committed by his coconspirators in further-
ance of the conspiracy. See Pinkerton v. United States,
328 U.S. 640, 647 (1946); United States v. Sandoval-Curiel,
50 F.3d 1389, 1392 (7th Cir. 1995). Thus, Broeske’s testi-
mony that Trenton actually or constructively possessed
and intended to distribute the drugs was relevant evi-
dence against Stotts, so long as there was sufficient evi-
dence for the jury to find that Stotts was a member of
the conspiracy. See Martinez de Ortiz, 907 F.2d at 635.
In addition to relaying Jane Doe’s out-of-court declara-
tion that Stotts had agreed to sell Broeske an ounce of
crack for $1,200, Broeske testified that she observed
Stotts accompanying Trenton immediately before and
after the transaction; twice gesturing for her to follow
No. 02-1937                                               7

him to the location of the drugs; and nodding his head in
agreement for her to inspect the drugs before paying.
Because Stott’s role in the conspiracy was sufficiently
established by more than out-of-court coconspirator de-
clarations, the district court’s failure to give an instruc-
tion similar to that set out in Martinez de Ortiz did not
affect the outcome of the trial.
                                                 AFFIRMED.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—3-20-03
