In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2079

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEE F. KIBLER, also known as SHORTY,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 98 CR 40005--J. Phil Gilbert, Judge.

ARGUED APRIL 19, 2001--DECIDED FEBRUARY 1, 2002


  Before FLAUM, Chief Judge, HARLINGTON
WOOD, JR., and ROVNER, Circuit Judges.

  ROVNER, Circuit Judge. Lee F. Kibler was
indicted by a grand jury on one count of
conspiracy to distribute and possess
cocaine base with intent to distribute,
in violation of 21 U.S.C. sec.sec.
841(a)(1) and 846, and on two counts of
possession of cocaine base with intent to
distribute, in violation of 21 U.S.C.
sec. 841(a)(1). A jury found him guilty
on all three counts, and the court
sentenced him to life imprisonment on the
conspiracy count, and to 360 months on
each of the remaining counts to be served
concurrently.

  The trial testimony demonstrated that
Kibler operated an automobile detailing
shop in Mount Vernon. In a bedroom above
the shop, Kibler weighed and packaged
crack cocaine, and he also used the
bedroom to trade crack cocaine for sex
with a number of female customers. In
addition, he traded crack cocaine for
food stamps, sold it for cash, and
fronted it to others who would sell it
and then return cash to him. The
testimony included recordings from two
"controlled buys," in which Zelman
Johnson, a confidential source working
for law enforcement, arranged and
completed purchases of crack from Kibler.
In addition, a number of other witnesses
testified as to their transactions with
Kibler.

  Kibler alleges that his due process
right to a fair trial was violated by the
introduction of evidence regarding prior
convictions, uncharged offenses, and
irrelevant immoral behavior. We take each
allegation in turn.

  Kibler concedes that he made no
objection at trial to evidence regarding
his prior convictions, and that his
defense counsel in fact made no effort to
limit the facts of his prior convictions
from reaching the jury. Accordingly, our
review is limited to plain error. Error
under that standard is reversible only if
it is "plain," meaning clear under
current law, and if it affects
substantial rights, in that it must be
prejudicial and must have affected the
outcome of the district court
proceedings. United States v. Olano, 507
U.S. 725, 734 (1993); United States v.
Williams, ___ F.3d ___, 2001 WL 1443900,
*9 (7th Cir. 2001); Fed. R. Crim. Proc.
52(b). If the defendants can make that
showing, the court of appeals has the
discretion to correct the forfeited error
under Rule 52(b), but "the court should
not exercise that discretion unless the
error "’seriously affect[s] the fairness,
integrity or public reputation of
judicial proceedings.’" Olano, 507 U.S.
at 732.

  At a number of points in the trial,
various witnesses alluded to Kibler’s
prior incarceration. Generally, it arose
in the context of establishing either a
timeline of events, or in establishing
the relationship between Kibler and the
witness. For instance, an initial
reference came during the direct
testimony by Chris Mendenall, the Chief
of Police of the Mount Vernon Police
Department. Mendenall testified that
Kibler made a statement after his arrest
in which he declared that he started
selling crack when he got out of prison
in 1996. Similarly, government witness
Manuel Vernell Berry, when asked on
direct examination if he met with Kibler
when he was in Mount Vernon, stated that
Kibler was incarcerated until around
1996, and that he saw him after that
time. Other witnesses alluded to the
incarceration in the course of explaining
a relationship with Kibler or an event
involving Kibler. For instance,
government witness Zelman Johnson
testified that he had the same parole
officer as Kibler, and that the officer’s
presence at the detail shop when Kibler
and Zelman were both there had caused
Kibler to get everyone together and
decide to shut the shop down for a while.
Finally, government witness Fred Goosby
testified that he first met Kibler when
they were both in the penitentiary in
1990. Kibler’s defense counsel objected
to the follow-up question by the prosecu
tor, in which Goosby stated that Kibler
was in the penitentiary "for drugs," and
the court sustained that objection.

  We need not discuss whether it was error
to allow the witnesses to reveal Kibler’s
prior incarceration in those contexts,
because even assuming it was error, it
cannot rise to the level of plain error.
The defense in this case was not premised
on denying Kibler’s involvement with
crack cocaine. Kibler presented no
witnesses in rebuttal of the government’s
case. Instead, the theory of the defense
was that Kibler could not be guilty of
conspiracy, because the government could
not prove the agreement with two or more
persons that was essential to the
conspiracy charge. The defense counsel
made clear that the trial strategy was to
rebut the existence of an agreement in
both his opening and closing statements
to the jury, and in his insistence on the
buyer-seller instruction. That
instruction, based on United States v.
Thomas, 150 F.3d 743 (7th Cir. 1998), ad
monished the jury that the existence of a
simple buyer-seller relationship between
Kibler and another person, without more,
was insufficient to establish a
conspiracy, even where the buyer intended
to resell the crack cocaine.

  The evidence of the prior convictions,
however, had virtually no impact on that
defense. The evidence that Kibler was a
seller of crack was overwhelming, and the
defense strategy was a concession to that
reality. Therefore, we are not faced with
a situation in which a defendant denies
all illegal activities, and the prior
convictions render that denial less
believable. There was no evidence
introduced indicating that those prior
convictions were for a drug conspiracy,
as opposed to individual actions as a
seller. Therefore, the prior convictions
were consistent with the defense strategy
of portraying Kibler as a drug dealer who
operates independently, rather than as
part of a conspiracy. Moreover, a
limiting instruction was given
admonishing the jury that it could not
consider his prior incarceration as
evidence of guilt of the crimes for which
Kibler was charged. We assume that jurors
follow the court’s instructions, unless
there is substantial evidence to the
contrary. United States v. Williams, 216
F.3d 611, 615 (7th Cir. 2000); United
States v. Hernandez, 84 F.3d 931, 935
(7th Cir. 1996). There is no reason here
to believe that the jury did not heed
that instruction. Kibler failed to
identify any manner in which the prior
conviction evidence prejudiced his
defense of no conspiracy, nor has he
demonstrated that the prior convictions
affected the outcome of the proceedings
in this case.

  Kibler next challenges the introduction
of evidence relating to uncharged
criminal conduct, specifically testimony
that Kibler had "put out a hit" on
another person, which was elicited by the
government on direct examination of
Manuel Vernell Berry as follows:

Q. Do you recall something that happened
to you that led you to believe that
someone was out to kill you?

MR. STOBBS [defense counsel]: Judge, I’m
going to object to this being irrelevant.

THE COURT: Overruled.

A. Uh, the FBI agent stopped my--

MR. STOBBS: Objection. Hearsay.

Q. Well, I don’t want you to tell me what-
-

THE COURT: Sustain that.

Q. I don’t want you to tell us what the
FBI agent told you. But you were advised
of some information?

MR. STOBBS: Well, if he is advised of
some information, that’s hearsay.

MR. MOORE: We’re not going to get into
the information, Judge; just what he did
afterwards.
THE COURT: All right.

Q. You were advised of some information,
without getting into the information; is
that correct?

A. Yes, sir.

Q. Once you were advised of that
information, what did you do?

A. I went to Mr. Kibler..

. . . Q. And what did you say to Mr.
Kibler?

A. I told him I had been told, you know,
that he is supposed to have a hit put out
on me.

Q. When you told Kibler that you’d been
advised that there was a hit out on you
by Kibler, what did Kibler say to you?

A. He just laughed about it, and he didn’t
say one way or the other.

Transcript 4 at pp. 94-95. Berry then
went on to testify that he was not doing
business with Kibler at that time, but
that after he confronted Kibler about the
alleged hit, they began doing business
together again.

  The government argues that the
introduction of the evidence was not
error because Berry "merely used the con
versation as a reference marking the end
of an eight month hiatus in his drug
relationship with the defendant." It also
argues that we should review only for
plain error, because Kibler failed to
properly object.

  Although Kibler objected to the initial
question concerning the hit, he did so
only on grounds of relevance. He did not
renew that objection to the later
questions, in which Berry was asked about
his conversations with Kibler, and he
never argued that the evidence was unduly
prejudicial, and should be excluded on
that ground. It is that argument, based
on Rule of Evidence 404(b), that he makes
on appeal, and we review that for plain
error.

  Once again, assuming error, Kibler
cannot demonstrate that admission of that
evidence was prejudicial and must have
affected the outcome of the district
court proceedings. Kibler’s own counsel
had in fact elicited testimony earlier in
the trial which indicated that Kibler
might be capable of being involved in
murder, when cross-examining Zelman
Johnson as follows:

Q. Did you know that Lee Floyd [Kibler]
was some sort of a target before you went
to talk to Chris Mendenall?

A. No. See, they never asked--the reason
Lee Floyd, the reason I got hooked up
with Lee Floyd was because he was telling
me about a murder that he wanted to do.
I went to my parole officer and told my
parole officer about it, and my parole
officer called Mt. Vernon Police
Department and federal and told them I
was scared, blah, blah, blah, and I came
to them because I was on parole, and
that’s how I got to know--that’s how we
bought the dope from Lee Floyd.

Transcript 3 at p . 197. In light of that
testimony, the testimony later elicited
by the government may actually have been
helpful, because it made the allegation
of Kibler ordering a "hit" appear to be
laughable. In contrast to Zelman, Berry
did not appear to be frightened by the
alleged threat given that he went to
speak to Kibler about it. Kibler’s
reaction in laughing off the allegation,
and the resumption of drug transactions
between Berry and Kibler, cast doubt upon
the credibility of the "hit" allegation.
Therefore, any prejudice from that
testimony was minimal, and in fact it may
have served to lessen the impact of more
damaging, similar allegations elicited in
response to defense questioning.
Accordingly, Kibler has failed to satisfy
the plain error standard. Olano, 507 U.S.
at 734; Williams, 2001 WL 1443900 at *9.
In fact, even if we were to interpret the
initial objection as sufficient to avoid
forfeiture, Kibler has failed to meet the
lesser standard as well. Even where a
defendant properly preserves an
objection, "[i]f a reviewing court is
certain that an evidentiary error did not
have ’a substantial and injurious effect
or influence on the jury’s verdict,’ the
error is harmless and the jury verdict
stands." United States v. Sargent, 98
F.3d 325, 330 (7th Cir. 1996), quoting
United States v. Hanson, 994 F.2d 403,
407 (7th Cir. 1993) (internal citations
omitted). For the reasons stated above,
any error in admitting the "hit" evidence
is harmless under that standard as well.

  Kibler also raises a cursory challenge
to the admission of "evidence regarding
the second floor bedroom, where both
black and white girls would come and
exchange food stamps and sex with
Defendant-Appellant for ’crack.’" Def.
Brief at 23. Kibler asserts that the
evidence was prejudicial because it
concerned immoral conduct intertwined
with potential racial issues, and that it
had no probative value. The evidence was
probative because it concerned the drug
transactions that formed the basis for
the indictment. The government is not
prevented from eliciting testimony
regarding relevant drug transactions,
solely because payment for those drugs
are made in the form of food stamps or
sex rather than cash, and the race of the
women involved was raised only
incidentally when witnesses were
identifying the persons involved.
Moreover, Kibler has made no effort to
argue how admission of that evidence
could have had an impact on the outcome
of the trial, and it is apparent from the
record that it could have no impact
whatsoever. Accordingly, the alleged
evidentiary errors in this case do not
provide a basis for reversal.

  The only other argument raised by Kibler
is that his due process rights were
violated when he was sentenced based on a
quantity of drugs that was neither pled
in the indictment nor subjected to proof
beyond a reasonable doubt. He argues
based upon Apprendi v. New Jersey, 530
U.S. 466 (2000), that the drug amounts
constituted an element of the offense
that had to be proven to the jury beyond
a reasonable doubt. The rule in Apprendi
applies only to drug quantities that
permit a sentence in excess of the
default statutory maximum. United States
v. Nance, 236 F.3d 820, 825 (7th Cir.
2000). In this case, Kibler possessed
prior drug convictions as was set forth
in the enhancement information filed
pursuant to 21 U.S.C. sec. 851, which
affected his default statutory maximum.
Accordingly, his sentence under counts 2
and 3 fell within that default maximum,
and no Apprendi issue arises.
  Regarding the conspiracy count, however,
the government concedes that he was
sentenced in excess of the default
statutory maximum. His sentence of life
imprisonment was based upon 21 U.S.C.
sec. 841(b)(1)(B), which authorizes that
sentence in cases involving prior
convictions and a conspiracy to
distribute 5 grams or more of cocaine
base. Accordingly, the government
acknowledges that the indictment should
have charged a conspiracy to distribute 5
or more grams of cocaine base, and that
the issue of whether that quantity was
met should have been submitted to the
jury. As to count one, the government
concedes that there was plain error that
affected the defendant’s substantial
rights. That, however, does not end the
inquiry.

  Under the plain error standard, such
error is not reversible unless it
seriously affected the "fairness,
integrity, or public reputation of the
judicial proceedings." Nance, 236 F.3d at
825-26. We have held that the failure to
allege the drug quantity in the
indictment is not reversible error where
it is clear beyond a reasonable doubt
that a properly worded indictment and a
properly instructed jury instruction
would have produced a guilty finding Id.
Where the evidence of the drug quantity
is overwhelming, the error does not
affect the fairness, integrity or public
reputation of the judicial proceedings,
because there is no reasonable doubt that
a jury faced with proper instructions
would have found him guilty of that
quantity and no reasonable doubt that a
grand jury presented with a properly
worded charge would have returned the
indictment.

  We are presented with such a situation
here. No reasonable jury, presented with
the evidence in this case, could have
concluded that the conspiracy for which
Kibler was convicted involved less than 5
grams of cocaine base. A brief glance at
the witness testimony makes the point.

  Steven Davis testified that he purchased
sixteenth ounce quantities of crack on a
number of occasions. He testified that
Sandra Davis, one of Kibler’s
girlfriends, sold him a sixteenth which
she identified as belonging to both her
and Kibler. At that time, he saw
approximately ten to fifteen sixteenths
in the bag she was holding, which is
approximately 17-26 grams. On another
occasion, he testified that she
inadvertently dropped two ounces (56
grams) of Kibler’s crack on the street,
returning with Kibler to search for it.

  Jennifer Scott testified that she began
purchasing crack from Kibler six months
after she was released from prison in
1996. She paid for it with cash and with
sex, eventually purchasing crack nearly
every day, and sometimes as often as
three times per day, in amounts varying
in worth from $20, $50 and $100. At one
time, she saw Kibler with approximately
150 grams of crack.

  Katina Harbor testified that she used
crack throughout the time that she was
Kibler’s girlfriend, from the fall of
1996 through January 1998. During the
last two months, she was consuming more
than 5 grams daily, and obtained at least
300 grams from him during that time. She
also assisted Kibler on occasion, and on
one occasion she counted out five hundred
$20 and $50 rocks of crack. Five hundred
$20 rocks amounts to 50-100 grams. She
also testified that she traveled with him
to Elgin three or four times, and that
they obtained a softball-sized rock of
crack on those occasions. Those rocks
would weigh approximately 140 grams each.

  The other testimony was consistent with
that portrayal. The evidence is simply
overwhelming that the conspiracy
encompassed significantly more than 5
grams of cocaine base, and no reasonable
jury could conclude otherwise.
Accordingly, there is no basis for
reversal.

  The decision of the district court is

AFFIRMED.
