In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4205
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUAWNTAY ADAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 CR 30029-3—David R. Herndon, Chief Judge.
ARGUED NOVEMBER 30, 2009—DECIDED OCTOBER 25, 2010
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Quawntay “Bosco” Adams was
arrested in a reverse sting operation shortly after he
accepted the keys to a van into which government agents
had loaded some 1400 pounds of marijuana. A jury later
convicted Adams on charges that he possessed more than
100 kilograms of marijuana with the intent to distribute,
see 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii), conspired to
commit money laundering, see 18 U.S.C. § 1956(a)(1)(A)(I)
and (h), and attempted to escape from custody, see 18
2 No. 08-4205
U.S.C. § 751(a). Adams appeals, contending that he was
deprived of his right to a speedy trial; that the evidence
does not support his conviction for conspiracy to commit
money laundering; and that, because government agents
had disabled the van loaded with marijuana before they
turned it over to an unwitting Adams, he did not have true
control over the marijuana and therefore did not possess it.
We agree that the evidence does not support the conviction
for conspiracy to commit money laundering but otherwise
affirm the judgment of conviction.
I.
Adams trafficked in wholesale quantities of marijuana
and, to a much lesser degree, in other narcotics. The
evidence established that Adams engaged in a series of
relatively large-scale marijuana transactions in the Fall of
2003 and continuing until his arrest in the reverse sting
operation in January 2004. Although Adams lived in
Southern California, his market for the distribution of
marijuana was metropolitan St. Louis, Missouri. Adams
had others transport the marijuana to St. Louis on his
behalf, while he traveled there separately to unload and
distribute the marijuana when it arrived. His activities in
connection with these shipments frequently took him
across the river from St. Louis into the Southern District of
Illinois, where this case was indicted and tried. For exam-
ple, one of Adams’ Illinois customers, Steve Carraway,
would later testify that he purchased a total of more than
245 pounds of marijuana from Adams on five occasions
between August and December 2003 in Illinois.
No. 08-4205 3
Jorge Gomez was one of Adams’ sources of marijuana.
Gomez first supplied marijuana to Adams in the late
summer of 2003. Pedro Barrios-Casteneda (“Barrios”) was
one of Gomez’s sources of marijuana. Barrios was part of
a group of individuals who imported marijuana from
Mexico to the United States by way of McAllen, Texas.
As we have noted, when Adams shipped marijuana from
California to St. Louis, he typically used couriers to
transport the marijuana in his stead. The trial testimony
revealed that he favored white females with low self-
esteem as couriers, because he believed they were less
likely to be stopped by the authorities and were easier to
manipulate. Nicole Bowline was one such courier. Bowline
met Adams in an Internet chat room in September 2003 and
subsequently took up residence with him. She agreed to be
a courier because she needed the money. Bowline trans-
ported three different shipments of marijuana to the St.
Louis area for Adams in September and October 2003.
Adams promised her $2,000 for each of the trips. Bowline
made the first trip by bus, with the marijuana and some
Ecstasy pills secured to her body using Saran Wrap and
hidden under business clothes that were several sizes too
large.1 Adams and several of his cohorts met Bowline at the
bus station in St. Louis, removed the drugs from her person
at a house in the city, and then spent the night at a motel
1
Bowline would later testify that she narrowly escaped
detection when the bus was stopped en route and its luggage
compartment inspected by a drug-detecting dog. Had the dog
been brought onto the bus, it surely would have alerted to
Bowline, who testified that she reeked of marijuana.
4 No. 08-4205
across the river in Collinsville, Illinois. Bowline then flew
back to Los Angeles. Bowline made the second and third
trips to St. Louis by rental car. In those instances, between
15 and 20 bricks of marijuana were hidden in the doors and
rear seat cushions of the vehicle. Adams (and accomplices)
met her in Rolla, Missouri on the second trip and in St.
Louis on the third. On both occasions, Adams and Bowline
stayed for a couple of days at the same motel in Collins-
ville, Illinois while Adams disposed of the marijuana.
Johnny Johnson, who rented the cars that Bowline used on
her second and third trips to St. Louis, testified that he
rented cars on Adams’ behalf on a total of five occasions.
Judging from Bowline’s experience, Adams did not treat
his couriers particularly well. For one thing, he was stingy
with money: although he had promised to pay Bowline
$2,000 for each trip she made, he never paid her anything
close to that; and during her third rip to St. Louis, she had
to call Adams and ask him to wire her another $100 after
the first $100 he had given her to pay for gasoline and other
expenses had been depleted. Later, after arriving in St.
Louis, Bowline decided she had had enough and tele-
phoned her aunt saying that she wanted to come home.
On overhearing the call, Adams shoved her against a wall
and threatened to kill her if she did not keep quiet.
Adams converted much of the cash that he realized on
the sale of marijuana into postal money orders. He had
accomplices acquire those postal orders at multiple post
offices and always in amounts less than $3,000, in order to
avoid unwanted scrutiny. On Bowline’s second trip to St.
Louis, for example, Adams directed her to buy some
No. 08-4205 5
$10,000 worth of money orders at three or four different
post offices in St. Louis using cash that he gave her. She
purchased them in amounts no greater than $2,500,
“[b]ecause [otherwise] they would ask to see my ID.” R.
460 at 188. When she gave the money orders to Adams, he
tucked them inside of his sock and shoe for safekeeping.
Bowline purchased more money orders on her third trip to
St. Louis, again at several different post offices. She also
wired $2,000 to Johnny Johnson on Adams’ behalf.
Adams used the postal orders for a variety of purposes,
some related to his drug trafficking—for example, Gomez
testified that Adams gave him $10,000 or more in money
orders in payment for some marijuana that he previously
had fronted to Adams, and Johnson was likewise paid in
money orders for cocaine that he had given Adams to sell
in St. Louis on his behalf—and some not—for example, the
purchase of a restored Fleetwood Cadillac automobile and
the rent on his apartment. Occasionally, Adams had the
money orders redeemed for cash: Bowline testified that in
September 2003, Adams had her cash money orders
totaling $8,400 that she had purchased a week earlier in St.
Louis and made payable to herself; she redeemed them at
a number of different California post offices, “because you
can’t cash too many at one location.” R. 460 at 177.
Adams had sufficient success in the St. Louis marijuana
market that he sought to step up his operations. Sometime
in or around the Fall of 2003, after Adams remarked to
Gomez that they could “make a lot of money” together in
St. Louis (Adams thought they could double their reve-
nue), R. 462 at 251, Gomez arranged a meeting with
6 No. 08-4205
Adams, Barrios (Gomez’s supplier), and Juan Valencia,
Barrios’ partner. When Adams told the group that he
wanted to deal in larger quantities of marijuana, Barrios
asked him whether he could handle as much as 1000
pounds of marijuana, and Adams said that he could.
Barrios agreed to the proposal, Gomez recalled, on the
condition that Adams find “a stash house where we could
keep the weed and another house where we could keep the
money,” R. 462 at 252 (so that in the event of a robbery
Adams and Gomez would not lose both their supply and
their cash), as well as a location in St. Louis where a semi
tractor-trailer hauling the marijuana could be unloaded.
While Adams was making these arrangements, Barrios
received a 300-pound shipment of marijuana in Atlanta
from his supplier (his uncle) in Mexico. Barrios arranged
for Adams to take delivery of that shipment in December
2003. This was a trial run, Gomez later testified, to confirm
that Adams had the ability to sell the 1000-pound quantity
of marijuana that he sought. “See, . . . they test you to make
sure you can get rid of the weed,” he explained. R. 462 at
255. “They’re not going to send you a big amount right
away.” Id. Adams and Gomez drove to Atlanta and met
Barrios there. Adams gave Barrios an initial payment of
$24,000 for the marijuana (a down payment of roughly 25
percent) and then had two young white women drive the
marijuana in tandem with Adams and Gomez (who were
in Adams’ car) from Atlanta to St. Louis. There, the
marijuana was unloaded from the women’s car and
secured in an apartment that Adams had rented to use as
one of his stash houses. Adams proceeded to sell the
marijuana in quantities of 20 or 30 pounds.
No. 08-4205 7
When Adams subsequently sold all but 60 pounds of the
Atlanta shipment within a period of roughly 10 days,
Barrios proceeded to make arrangements for a 1000-pound
shipment of marijuana. Adams was to pay Barrios more
than half a million dollars for the shipment (the agreed
upon price, according to Gomez, was $550 per pound).
Barrios commissioned Angel Bustos-Aguirre (“Bustos”) to
find a truck driver who would transport the marijuana in
a semi tractor-trailer from McAllen, Texas to St. Louis.
Bustos in turn contacted Juan Bortfeld, whom he believed
to be the owner of a trucking company; Bortfeld was
actually an undercover criminal investigator for U.S.
Immigration and Customs Enforcement (“ICE”). Bortfeld
agreed to haul the marijuana for a fee of approximately
$80,000, which was to be paid from the balance that Adams
still owed Barrios on the Atlanta shipment. When the
marijuana was ready for shipping in January, Bortfeld told
Bustos that he was unavailable and that another driver,
Scott Crawford (also an ICE agent), would drive the load
to St. Louis. One hundred twenty-two bricks (about 1400
pounds) of marijuana were loaded onto Crawford’s semi at
a ranch near McAllen. Crawford drove the shipment to an
ICE office in San Antonio, Texas, where it was off-loaded,
weighed, and then flown to a small Illinois airport outside
of St. Louis. Crawford in the meantime drove the empty
truck to St. Louis, where he was joined by his fellow agent,
Bortfeld. Adams, Barrios, and their respective entourages
also had assembled in St. Louis to consummate the deliv-
ery of the marijuana.
Bortfeld and Crawford (sans the marijuana) met up with
Bustos, Adams, and Barrios on January 22, 2004, at a St.
8 No. 08-4205
Louis-area gas station and then followed them to a kind of
junkyard in East St. Louis, Illinois that Adams had chosen
for purposes of unloading the marijuana. The agents at first
agreed to deliver the marijuana to that location but later
vetoed it for tactical reasons; they told the conspirators that
they did not think they could get the semi tractor-trailer
into the junkyard.
On the following afternoon, Bortfeld and Crawford met
with Bustos and told him that they had transferred the
marijuana from the semi to a van, which they would hand
over to him at a truck stop. That evening, after ICE agents
had loaded the marijuana into a van and driven it to the
Gateway Truck Stop in East St. Louis, Bortfeld telephoned
Bustos to advise him that the marijuana was ready for
delivery and gave him directions. Adams, Barrios, and
Bustos drove to the truck stop. When they arrived, Bustos
gave Bortfeld a backpack containing some $46,000, which
was less than the $70,000 to $80,000 that Bortfeld and
Crawford were expecting. Adams said that he could
produce the balance in half an hour, and the agents agreed.
Crawford surrendered the keys to the van. Adams took the
keys, entered the van, and attempted to start the vehicle’s
ignition. He had no success, however, because ICE agents
had disconnected the van’s battery. Police moved in to
arrest Adams, Barrios, and Bustos. Several of the other co-
conspirators, who were waiting elsewhere, fled when they
received word of the arrest.
In a third superseding indictment, the grand jury
charged Adams with conspiring to distribute marijuana,
possessing in excess of 100 kilograms of marijuana with the
No. 08-4205 9
intent to distribute, conspiring to launder the proceeds of
his marijuana sales with the intent to promote further
marijuana trafficking, attempting to escape from custody,
and escaping from custody. Barrios, Bustos, Bowline, and
Johnson were also indicted, but each of them pleaded
guilty; only Adams went to trial. Adams pleaded guilty to
the escape charge at the outset of the trial but maintained
his innocence on the other charges. After hearing the
evidence, the jury acquitted Adams of conspiring to
distribute marijuana but convicted him of the other
charges. The district court ordered Adams to serve a term
of 420 months in prison.
II.
A. Speedy Trial Act Claim
A criminal complaint was filed against Adams on
January 26, 2004, and Adams made his initial appearance
before a magistrate judge on January 27, 2004. The original
indictment, which charged Adams, Bustos, and Barrios
with conspiring to distribute marijuana and possessing
marijuana with the intent to distribute, was returned and
made public on February 18, 2004. Additional defendants
and charges, and the eventual guilty pleas of all defendants
but Adams, led ultimately to the third superseding indict-
ment on which Adams was tried. That indictment was filed
on July 20, 2006. The following month, Adams moved to
dismiss the two marijuana-trafficking charges, on the
ground that he had not been tried on those charges within
70 days as prescribed by the Speedy Trial Act, 18 U.S.C.
§ 3161(c)(1). Adams reasoned that the speedy trial clock on
10 No. 08-4205
those charges commenced with the filing of the original
indictment on February 18, 2004. He later expanded his
motion to include the dismissal of the remaining charges,
which were added by the first superseding indictment filed
on November 18, 2004. The district court denied his
motion, concluding, as relevant here, that the June 3, 2005
arraignment of Johnson, the last defendant to be brought
into the case (by way of the second superseding indictment
filed on May 17, 2005), reset the speedy trial clock as to all
defendants, and that subsequent continuances of the trial
date, including in particular two continuances requested
by Adams’ own counsel (and objected to by Adams in
retrospect) tolled the running of the clock, such that the 70
days had not yet run on any of the charges.2
In reviewing the district court’s Speedy Trial Act ruling,
we examine its legal conclusions de novo and its factual
findings for clear error. E.g., United States v. Loera, 565 F.3d
406, 411 (7th Cir.), cert. denied, 130 S. Ct. 654 (2009). As we
discuss below, among the periods of delay that the Act
excludes from the computation of the time within which
the defendant’s trial must commence is a delay occasioned
by the court’s decision to grant a continuance of the trial
date consistent with the ends of justice. § 3161(h)(7)(A).
Absent legal error, our review of the excludability of such
continuances is deferential. United States v. Broadnax,
2
Additional time periods were excluded based on a pretrial
motion filed by Adams on June 21, 2005, and a motion to
continue the trial date filed by co-defendant Johnny Johnson on
July 7, 2005. Adams has not challenged the excludability of these
time periods.
No. 08-4205 11
536 F.3d 695, 698 (7th Cir. 2008); United States v. Neville,
82 F.3d 750, 762 (7th Cir. 1996); see also United States v. Hills,
Nos. 09-2151, 09-2152, & 09-2153, 2010 WL 3239394, at *2
(7th Cir. Aug. 18, 2010). The chronology of events below,
including the continuances that were granted at the request
of Adams’ own counsel, persuade us that he was not
denied his statutory right to a speedy trial.
As the district court properly recognized, when an
indictment charges more than one defendant, the speedy
trial clock for all defendants typically does not begin to run
until the last of the defendants appears. E.g., United States
v. Harris, 567 F.3d 846, 849 (7th Cir.), cert. denied, 130 S. Ct.
1032 (2009); see § 3161(h)(6). This principle holds true
when an additional defendant is added to the case by way
of a superseding indictment, as Johnson was. See Henderson
v. United States, 476 U.S. 321, 323 n.2, 106 S. Ct. 1871, 1873
n.2 (1986). Adams disputes this point, contending that to
reset the clock each time a new defendant is indicted
would give the government the ability to delay trial as long
as it can keep scrounging up new defendants. However, his
argument runs head-long into the Supreme Court’s
decision in Henderson as well as our own decisions holding
that a new 70-day speedy trial period commences with the
appearance of a later-added defendant. Id. at 323 n.2, 106
S. Ct. at 1873 n.2; Harris, 567 F.3d at 849-50; United States v.
Owokoniran, 840 F.2d 373, 375 (7th Cir. 1987); see also
United States v. Parker, 505 F.3d 323, 327 (5th Cir. 2007);
United States v. King, 483 F.3d 969, 973-74 (9th Cir. 2007);
United States v. Barnes, 251 F.3d 251, 258-59 (1st Cir. 2001);
United States v. Piteo, 726 F.2d 50, 52-53 (2d Cir. 1983). And
Adams does not contend that Johnson or any other defen-
12 No. 08-4205
dant not named in the original indictment was improperly
joined or was named on a pretext to delay the trial. He
does argue, summarily, that the delay of more than a year
in naming Johnson as an additional defendant was unrea-
sonable and as such was not excludable under the plain
terms of the statute, which authorizes the exclusion of only
a “reasonable period of delay” when the defendant is
joined for trial with a co-defendant as to whom the time for
trial has not yet run. § 3161(h)(6). But Adams offers no
analysis of why the delay in indicting Johnson (who was
not one of the individuals arrested at the Gateway Truck
Stop) should be deemed unreasonable on the facts of the
case, which involved a conspiracy having a relatively wide
geographical scope and many actors. By failing to develop
his argument in any meaningful way, he has waived it.
E.g., Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010).
Johnson was not indicted until May 17, 2005, and with his
arraignment on June 3, 2005, the speedy trial clock began
to run anew as to Adams and his co-defendants. Adams
has never contended that the speedy trial clock had already
run out by that time; so we need only consider whether
more than 70 days passed without proper exclusion by the
district court after the clock was reset on June 3, 2005.3
3
We note that Adams did seek a severance from his co-defen-
dants on May 18, 2005, the day after Johnson was indicted.
However, that motion was properly denied by the district court,
and, indeed, Adams does not contend otherwise. This case
therefore does not present an exception to the general rule that
periods of delay attributable to one defendant apply to his
(continued...)
No. 08-4205 13
The district concluded that all but 21 days of the period
following Johnson’s arraignment were properly excludable
from the running of the speedy trial clock. A series of
continuances of the trial date, granted at the request of one
defendant or another—including Adams—comprised the
bulk of the time that the court deemed excluded. The Act
provides for the exclusion from the speedy trial calculation
of “[a]ny period of delay resulting from a continuance
granted by any judge on his own motion or at the request
of the defendant or his counsel or at the request of the
attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.”
18 U.S.C. § 3161(h)(7)(A) (formerly § 3161(h)(8)(A)). The
statute goes on to set forth a number of factors that the
judge must consider in determining whether a continuance
is warranted. § 3161(h)(7)(B). It also requires the judge to
put on the record his reasons for finding that the ends of
justice outweigh the best interest of the public and the
defendant in a speedy trial. § 3161(h)(7)(A). As the Su-
preme Court has recognized, “[t]he strategy of
§ [3161(h)(7)] . . . is to counteract substantive openend-
edness with procedural strictness.” Zedner v. United States,
547 U.S. 489, 509, 126 S. Ct. 1976, 1990 (2006). “This provi-
sion demands on-the-record findings and specifies in some
detail certain factors that a judge must consider in making
these findings.” Id., 126 S. Ct. at 1990.
3
(...continued)
codefendants as well. E.g., Harris, 567 F.3d at 849-50.
14 No. 08-4205
Adams challenges the excludability of two of the contin-
uances that the district court granted after Johnson’s
arraignment. 4 The challenged orders include the court’s
order of October 19, 2005, granting Adams’ request for a
continuance and resetting the trial date to January 30, 2006,
4
There are other continuances that the court granted in that
time period, see supra n.2, but these are the sole orders that
Adams challenges as insufficient to justify the exclusion of time
from the speedy trial calculation.
We note that the Supreme Court’s decision in Bloate v. United
States, 130 S. Ct. 1345 (2010), renders non-excludable a 10-day
period allowed for the government and Johnny Johnson to file
additional pretrial motions on June 3, 2005 (the date of Johnson’s
arraignment), as no such motions were filed at the conclusion of
that period. But that period of time was also covered by a prior
order continuing the trial date until June 13, 2005, at the request
of defendant Bowline, who was negotiating an agreement with
the government that ultimately resulted in her guilty plea and
testimony as a witness on the government’s behalf. Adams did
not object to Bowline’s request for the continuance at the time,
and the district court in granting her request expressly found
that the ends of justice served by granting the continuance
outweighed the best interest of the public and the defendants in
a speedy trial. R. 141. Only later, when he sought dismissal of
the charges on speedy trial grounds, did Adams contend that the
continuance was not excludable under the Speedy Trial Act.
However, we discern no error in the court’s decision to grant the
unopposed continuance, including its ends-of-justice finding.
The period of time covered by this continuance thus tolled the
speedy trial clock as to Adams as well as Bowline. E.g., Harris,
567 F.3d at 849.
No. 08-4205 15
and the court’s order of March 8, 2006, granting another
request by Adams to continue the trial date, and reschedul-
ing the trial for June 26, 2006. These continuances were
granted at the request of his own counsel, which casts
doubt on the validity of his subsequent contention that he
was deprived of his statutory right to a speedy trial. See,
e.g., United States v. Larson, 417 F.3d 741, 746 (7th Cir. 2005)
(defendant who requests continuance should not be
entitled to turn around later and claim that continuance
violated his speedy trial rights). Adams attempts to resolve
that doubt by contending that he himself never consented
to the continuances and, to the contrary, wished his trial to
proceed without delay. But as we recently observed in
Hills, “ ‘there is no requirement that counsel obtain [the
defendant’s] consent prior to making purely tactical
decisions such as the decision to seek a continuance,’ ” and
the Act itself provides for the exclusion of continuances
granted at the request of the defendant or his counsel. 2010
WL 3239394, at *5 (quoting United States v. Gearhart, 576
F.3d 459, 463 n.3 (7th Cir. 2009)); § 3161(h)(7)(A). In any
event, for the reasons discussed below, we find that the
district court had proper grounds on which to continue
the trial date.
When he sought the first of these continuances, Adams’
counsel contended that the case was complex, that it
involved multiple witnesses and v oluminous documents,
and that there was a good chance that more individuals
would decide to cooperate and become witnesses for the
government. “Denial of a continuance in this matter would
lead to a miscarriage of justice for [Adams], as it is unrea-
sonable to expect adequate preparation for trial proceed-
16 No. 08-4205
ings given the current trial setting.” R. 180 at 1. Although
the minute entry granting this motion did not memorialize
the court’s underlying rationale, the court subsequently
entered a separate order setting forth its reasoning for both
the October 19, 2005 continuance and another continuance
granted on January 17, 2006 (the propriety of which Adams
does not contest). In that later order, the court expressly
found that the ends of justice outweighed the interests of
the public and the defendant in a speedy trial, and by way
of explanation noted that Adams’ counsel had informed
the court that he needed additional time to evaluate the
weight that additional cooperating witnesses might add to
the government’s case and to adjust the defense strategy
accordingly. R. 200. Subsequently, in addressing Adams’
speedy trial motion, the court remarked that it was Bow-
line’s sudden decision to cooperate that put Adams’
counsel “into a tailspin” and caused him to seek additional
time. R. 286 at 4.
The second request for a continuance, granted on March
8, 2006, was based on the fact that Adams’ counsel had
another trial scheduled to begin before the date on which
Adams’ trial (then set for March 27, 2006) was expected to
conclude. The motion averred that Adams’ counsel had
another client facing trial in the Eastern District of Missouri
on April 3, 2006; and given the age of that case and the
number of parties involved, the judge presiding over that
case had voiced his disinclination to postpone the trial any
further. Counsel had expected his Missouri client to plead
guilty, but that had not occurred. Counsel anticipated that
Adams’ trial would last longer than one week, so there was
a possibility that if it began as scheduled on March 27, it
No. 08-4205 17
would not yet be over when the other trial was scheduled
to begin. In its order granting this continuance, the court
noted the conflict between the two trials and set forth an
express finding that “the ends of justice served by granting
of such [a] continuance outweigh the best interests of the
public and Defendant in a speedy trial.” R. 207 at 1-2.
The content of Adams’ motions, coupled with the court’s
orders granting those motions and, with respect to the
October 19 order, the court’s subsequent elaboration of its
rationale, reveal the relevant grounds for the continuances
and are sufficient to comply with section 3161(h)(7). See
United States v. Napadow, 596 F.3d 398, 405-06 (7th Cir.
2010). In both instances the court expressly found, in light
of the circumstances that Adams’ counsel cited, that the
ends of justice served by granting the requested continu-
ance outweighed the public’s interest and the defendants’
interest in a speedy trial. The fact that in one instance the
court made that finding (and stated the reasons for it) in
retrospect rather than contemporaneously with its order
granting the continuance is immaterial; the Supreme Court
has indicated that this is permissible, Zedner, 547 U.S. at
506-07, 126 S. Ct. at 1989, and the district court did put its
rationale on the record well before Adams sought dismissal
of the indictment on speedy trial grounds, which we have
said is the prudent course, e.g., United States v. Rollins, 544
F.3d 820, 830 (7th Cir. 2008); see also Hills, 2010 WL 3239394,
at *6. Nor is the lack of express mention of the factors set
forth in section 3161(h)(87)(B) fatal to the excludability of
the continuances; the statute requires that the court
consider those factors in weighing the competing interests
and to put on the record its reasons for finding the continu-
18 No. 08-4205
ance warranted, but it does not require that the court recite
the statutory factors or make findings as to each of them on
the record. See, e.g., Napadow, 596 F.3d at 405-06.
Adams takes the position that these continuances were
unnecessary and that the grounds cited by his counsel in
seeking them and by the district court in granting the
continuances were insufficient to overcome his own
interest, and that of the public, in a speedy trial. But the
district court was in a much better position than we are to
assess the merits of his counsel’s representations and to
determine whether the ends of justice warranted a delay in
the trial date. Nothing that Adams has argued in hindsight
convinces us that the district court clearly erred in its
understanding of any fact or abused its discretion in
balancing Adams’ right to a speedy trial against the
circumstances which, in the court’s view, counseled in
favor of a delay. Nor has Adams shown that he was
prejudiced by the continuances in any concrete way. See,
e.g., Hills, 2010 WL 3239394, at *2 (citing Broadnax, 536 F.3d
at 698).
B. Conspiracy to Launder Proceeds of Marijuana Traf-
ficking
Count Three of the indictment charged Adams with
conspiring to purchase, mail, and cash postal money orders
and to transfer money via Western Union with the intent
to promote the further distribution of marijuana, knowing
that the money involved represented the proceeds of
marijuana trafficking. 18 U.S.C. § 1956(a)(1)(A)(I) and
§ 1956(h). This charge required the government to prove
No. 08-4205 19
that the defendant was “in fact part of the conspiracy to
launder money, and . . . ‘(1) conducted a financial transac-
tion with the proceeds of an illegal activity; (2) knew the
property represented illegal proceeds; and (3) conducted
the transaction with the intent to promote the carrying on
of the [specified] unlawful activity.’ ” United States v. Lee,
558 F.3d 638, 641 (7th Cir. 2009) (quoting United States v.
Malone, 484 F.3d 916, 920 (7th Cir. 2007)). After an inde-
pendent review of the record, we agree that the evidence
was indeed insufficient to support the jury’s verdict on this
count.
Bowline’s purchase of postal money orders during her
second and third trips to St. Louis in some respects consti-
tuted the best evidence of money laundering. We may
infer—given Bowline’s role as a courier, the fact that the
money orders were purchased with cash that came into
Adams’ possession after Bowline carried marijuana to St.
Louis, and that Bowline purchased the money orders on
Adams’ behalf and at his behest—that these transactions
involved the proceeds of Adams’ marijuana sales and that
Bowline would have surmised as much. Furthermore, the
fact that Adams directed her to purchase these orders in
amounts no greater than $2,500 and not to buy them all at
a single post office evidenced an effort to structure the
transactions so as to avoid attracting the attention of the
authorities and to conceal the source of the funds used to
purchase the money orders. But Adams was not charged
under the concealment prong of the statute, section
1956(a)(1)(B), but rather the promotion prong, section
1956(a)(1)(A), which, as we have noted, requires proof of
an intent to promote the carrying on of the unlawful
20 No. 08-4205
activity from which the funds involved were derived—in
this case, marijuana trafficking. But as the parties agree, the
record contains no evidence that Bowline appreciated that
the purpose of the money order purchases was to promote
continued marijuana trafficking, such that the jury could
infer that she and Adams were conspiring to launder
money with that aim. Bowline testified that Adams did not
tell her why he was purchasing money orders and that she
had no idea of what the money orders were used for. R. 461
at 56-57. Proof along those lines is indispensable to a
conspiracy conviction under the promotion prong of the
statute. See, e.g., United States v. Trejo, 610 F.3d 308, 317-18
(5th Cir. 2010).
The same flaw in the evidence, plus a second, exists with
respect to the money orders that Bowline cashed in Califor-
nia following her first trip to St. Louis. There is no evidence
that the cash Bowline obtained in exchange for the money
orders was used to promote further marijuana trafficking
and that Bowline understood as much. At the same time,
there is no evidence that these money orders represented
the proceeds of marijuana trafficking, as opposed to the
sale of Ecstasy (recall that Bowline carried Ecstasy as well
as marijuana to St. Louis on her first trip) or stolen elec-
tronics, in which Adams also dabbled.
There are similar problems with respect to two different
transfers of funds by wire that occurred during Bowline’s
third trip to St. Louis. Recall that while Bowline was
driving from California to St. Louis, she ran out of money
and had Adams wire her $100. Perhaps it is safe to assume
that Bowline used the wired funds in furtherance of
No. 08-4205 21
marijuana trafficking (by buying gasoline for the car, for
example). But there was no evidence as to the source of
those funds, so no reasonable juror could conclude that
they were the proceeds of marijuana trafficking. During the
same trip, while Bowline and Adams were in St. Louis,
Adams directed her to wire $2,000 to Johnson. However,
Johnson testified that this represented payment for the
cocaine he had given Adams to sell in St. Louis; so this
transaction did not involve the proceeds of marijuana
trafficking.
There were financial transactions involving other indi-
viduals, but these fare no better as proof of a money
laundering conspiracy. On one occasion, Adams used
money orders to pay Gomez for marijuana that Gomez had
fronted to Adams previously. Gomez accepted this form of
payment (in contrast to Barrios, who told Gomez, “I ain’t
a bank” (R. 462 at 241) when Gomez tried to pay Barrios
with the same money orders), but there is no evidence that
would support the inference that, in doing so, he was
conspiring with Adams to launder the proceeds of his
marijuana trafficking. Johnson also accepted money orders
from Adams, but in payment for cocaine rather than
marijuana. Finally, the evidence revealed that Adams used
money orders to pay the rent on his California apartment
and to buy a restored Cadillac. But nothing in the record
would support the inference that Adams engaged in these
transactions with the intent to promote further marijuana
sales.
Adams has reviewed a number of additional transac-
tions, but these transactions involved cash rather than
money orders or wire transfers and as such were not the
22 No. 08-4205
types of transactions referred to in the indictment or the
jury instructions. Consequently, we need not address them.
Our review of the trial record confirms that the evidence
would not permit a reasonable finder of fact to find each of
the elements of the money laundering conspiracy charge
proven beyond a reasonable doubt. Adams is therefore
entitled to a judgment of acquittal on Count Three.
C. Possession of the Marijuana in the Van that Agents
Had Disabled
The charge in Count Two, that Adams possessed 100
kilograms or more of marijuana with the intent to distrib-
ute on January 23, 2004, was premised on the notion that
when Adams accepted the keys to the van into which the
ICE agents had loaded the 1400 pounds of marijuana from
Barrios and entered that van, he took possession of the
marijuana therein. But because the battery had been
disconnected and the vehicle was consequently inoperable,
and he had no other means of leaving the truck stop with
multiple officers waiting to arrest him, Adams contends
that he could not have actually or constructively possessed
the marijuana in the sense of having the ability to control
it. At best he may have attempted to possess the marijuana,
Adams reasons, but he was not charged with an attempt.
In resolving Adams’ challenge to the sufficiency of the
evidence underlying his conviction on Count Two, we are
obliged to view the evidence in the light most favorable to
the government and will reverse his conviction only if no
rational juror could find beyond a reasonable doubt that he
possessed the marijuana with the intent to distribute.
No. 08-4205 23
See, e.g., United States v. Mitten, 592 F.3d 767, 776 (7th
Cir. 2010), petition for cert. filed (U.S. Apr. 9, 2010) (No. 09-
10205).
Possession is defined as the “[t]he fact of having or
holding property in one’s power; the exercise of dominion
over property.” B LACK’S L AW D ICTIONARY 1183 (7th ed.
1999). Possession may be actual or constructive. E.g., United
States v. Kelly, 519 F.3d 355, 361 (7th Cir. 2008). One actually
possesses a thing when it is in his physical custody and
control; he constructively possesses it when, although it is
not within his physical possession, “he knowingly has the
power and intention at a given time to exercise dominion
and control over the object.” Id. The power to exert control
over an object is a prerequisite to a finding of either form
of possession: “Implicit in a common-sense understanding
of possession—both actual and constructive—is the notion
that a defendant has some right or ability to control the
disposition of an object.” United States v. Kitchen, 57 F.3d
516, 524 n.2 (7th Cir. 1995); see also United States v. Hunte,
196 F.3d 687, 693 (7th Cir. 1999). The government asserts
that Adams at least constructively possessed the marijuana
once he accepted the keys to the van, and his possession
became actual once he entered the van and put the key in
the ignition, signaling his intent to drive away with the
marijuana. In Adams’ view this was all a fiction, given that
he had no practical ability to leave the scene with the
marijuana.
As Adams recognizes, this court and a number of our
sister circuits have deemed the evidence sufficient to
establish a defendant’s actual or constructive possession of
24 No. 08-4205
narcotics once the defendant or his accomplice has taken
custody of the drugs or manifested an intent to do so,
notwithstanding the presence of law enforcement officers
standing ready to arrest him. See United States v. Perry, 747
F.2d 1165, 1171-72 (7th Cir. 1984) (constructive) (defendant
parked station wagon next to plane and opened rear of car
to receive nearby suitcases that he knew contained co-
caine); see also, e.g., United States v. Zavala Maldonado, 23
F.3d 4, 7-8 (1st Cir. 1994) (constructive) (informant left
cocaine in defendant’s hotel room when defendant and
informant went out to get a soda while they awaited arrival
of purchaser, who was defendant’s accomplice) (2-1
decision); United States v. Posner, 868 F.2d 720, 724 (5th Cir.
1989) (constructive) (defendant’s co-conspirator accepted
keys to defendant’s rented van, which agent had loaded
with marijuana, entered van, and attempted to start
ignition, whereupon he was arrested); United States v. Toro,
840 F.2d 1221, 1237-38 (5th Cir. 1988) (actual) (defendant
accepted cocaine from undercover agent and put it into a
briefcase, which he then locked); United States v. Damsky,
740 F.2d 134, 139 (2d Cir. 1984) (constructive) (after defen-
dant paid for hashish, undercover agent left key to camper,
into which agent had loaded the hashish, on top of televi-
sion in defendant’s motel room); United States v. Martorano,
709 F.2d 863, 869-871 (3d Cir. 1983) (constructive) (after
receiving payment, informant gave defendant keys to van
which agents had loaded with P2P, and defendant in turn
gave van keys to his accomplice, who unlocked and
entered van and sat for a moment before he was arrested)
(2-1 decision); United States v. Jones, 676 F.2d 327, 332
(8th Cir. 1982) (constructive and actual) (defendant ac-
No. 08-4205 25
cepted keys to agents’ car, which was loaded with mari-
juana, and then off-loaded marijuana into his own van).
These decisions often emphasize that notwithstanding the
presence of undercover law enforcement personnel who
frustrated the defendant’s plans to depart with and
distribute the drugs, the defendant, by knowingly taking
the drugs into his custody, has done all that he can do,
short of leaving the scene with them, to signal his desire
and intention to accept control over the drugs for purposes
of distributing them. E.g., Zavala Maldonado, 23 F.3d at 8
(“That the police are present and ready to frustrate distri-
bution does not make possession of drugs any less of a
crime, and a minute of possession is as much an offense as
a year of possession . . . . The completion of the crime does
not require that the defendant have a sporting chance.”);
Martorano, 709 F.2d at 871 (“To require that the police allow
the criminals to escape with the drugs would place an
impossible burden on the police and on the courts seeking
to enforce criminal statutes as well as contribute to the very
evil that the statute is intended to eliminate.”).
Our own more recent decision in Kitchen acknowledged
and distinguished this line of authority on the ground that
Kitchen, who before his arrest had done nothing more than
pick up a kilogram of cocaine for two or three seconds
before putting it back down and expressing dissatisfaction
with its purity to the agents who were offering it for sale,
had not unequivocally signaled his assent to the purchase.
57 F.3d at 521-24. The dispositive point in our analysis was
not the presence of agents who would have prevented
Kitchen from leaving with the cocaine, id. at 524, but rather
26 No. 08-4205
the transitory and inconclusive character of Kitchen’s act
of holding it, id. at 522-23. That fleeting moment when
Kitchen had the cocaine in his hands in order to look it
over was insufficient to manifest Kitchen’s intent to
complete the transaction and take the cocaine with him.
By taking delivery of the drug and loading it into a
briefcase or a van, a defendant clearly demonstrates his
assent to the drug transaction. Here, however, we have
no indication of assent. The record is devoid of evi-
dence that Kitchen intended to walk away with the
narcotics or otherwise transport them. This factual
distinction might not be dispositive if the record
revealed any evidence that Kitchen had completed the
sale or indicated some sort of unequivocal agreement
to complete the drug transaction. Given that sort of
clear evidence, perhaps a momentary holding, without
more, would be sufficient to demonstrate actual
possession. But that is not the case before us now.
Id. at 522 (emphasis in original); see also id. at 523
(“Kitchen’s momentary holding was in the context of
inspection, not delivery.”). Our analysis focused ultimately
on the concept of control. A defendant’s ability to exercise
control over the narcotic, we said, is a prerequisite to his
conviction for actual (and for that matter, constructive)
possession of that contraband. Id.
. . . In most cases of actual possession, because the
defendant physically holds or carries the narcotics, his
control over them is presumed. But to state that control
is presumed is not to suggest that actual possession can
be established when it is completely absent.
No. 08-4205 27
The facts suggest that it was absent in this case. The
constructive possession cases teach that a defendant
must have ultimate control over the drugs. This re-
quirement translates into the right, or the recognized
authority within the “criminal milieu,” to possess the
drugs in question. . . .
These factors are dispositive in the present case.
Although Kitchen held the cocaine in his hand, he did
not yet have a recognized authority to exert control
over it. This is so not because the presence of federal
agents would have ultimately prevented his success,
but because he had not yet assented in any form to the
transaction. Had he paid part of the purchase price,
verbally assented to the deal, or otherwise unambigu-
ously indicated his agreement to complete the deal, the
case would be different. But the government has failed
to point to factors that would enable a jury to find that
Kitchen accepted the cocaine. It is critical here that,
prior to giving some sort of assent to the sale, Kitchen’s
conduct was consistent only with that of a prospective
buyer inspecting goods. He did not yet have the ability
to control the contraband, despite the fact that he
momentarily held it in his hand.
Id. at 524 (citations omitted); see also id. at 525 (“We believe
that although Kitchen held the drugs for a moment, he
neither controlled them nor had recognized authority over
them. His conduct was consistent with inspection—but
nothing more. Lack of control is dispositive under both the
doctrines of actual and constructive possession.”).
28 No. 08-4205
Here, by contrast, Adams unequivocally manifested his
assent to possession of the marijuana by taking the keys to
the van, entering the van, and attempting to start it. This
was the culmination of a transaction that Adams himself
had initiated with Gomez, Barrios and other co-conspira-
tors. Bustos had hired Crawford and Bortfeld to transport
the marijuana to St. Louis and deliver it to Adams. Adams,
in turn, had taken every step expected of him, including
his promise to make good on the balance owed to
Crawford and Bortfeld, to complete the delivery sequence
and to accept the marijuana into his own possession for the
purpose of distributing it. The evidence leaves no doubt
that had Crawford and Bortfeld been who he believed
them to be rather than the undercover federal agents they
were, Adams would have driven away from the truck
stop with the marijuana. The fact that the van’s battery
had been disconnected does not meaningfully distin-
guish the facts of this case from those we found sufficient
to show (constructive) possession in Perry or those
which other circuits have found sufficient to establish
possession. The presence of federal agents in those cases
rendered the defendant’s ability to leave the scene with
the drugs just as improbable as it was here. Although in
this case the van was inoperable, it was nonetheless in
Adams’ custody, and from the moment he took the
van’s keys into his hands he had the ability to exercise
control over the van and its contents in many senses if not
in the sense that he could have driven the van away. He
could have locked the doors and at least temporarily
kept others from entering the van; if he was armed he
could have held the agents at bay; if he had rolling paper
No. 08-4205 29
he could have fashioned himself a joint; if he had a
lighter he could have set the van on fire. It was not neces-
sary for the agents to have left the battery connected
in order to establish Adams’ control over the van’s con-
tents. In the eyes of his coconspirators, Adams had a
right to take possession of the marijuana once Crawford
and Bortfeld had been paid; and when Adams accepted
the keys to the van, entered it, and attempted to engage
the ignition, he amply signaled his willingness and
intent to exercise that right. Allowing him a chance to
drive away was not necessary to establish his possession
of the marijuana.
The facts, viewed favorably to the government, were
therefore sufficient for the jury to find that Adams pos-
sessed the marijuana that agents had loaded into the
van with the intent to distribute that marijuana.
Adams constructively possessed the marijuana once
he accepted the keys to the van, and he actually pos-
sessed it once he entered the van and attempted to start it.
III.
Adams was not deprived of his statutory right to a
speedy trial. The evidence was not sufficient to support his
conviction on Count Three of the third superseding
indictment for conspiracy to engage in money laundering.
However, it was sufficient to support his conviction on
Count Two for possession of 100 or more kilograms of
marijuana with the intent to distribute. The case is re-
manded with directions to enter a judgment of acquittal on
30 No. 08-4205
Count Three of the third superseding indictment and for
resentencing in light of that acquittal.
AFFIRMED IN PART, REVERSED IN PART,
and REMANDED
10-25-10