In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3732 & 09-3755
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
O RLANDES N ICKSION and M ARK C UBIE,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 2:05-cr-00146-CNC—Charles N. Clevert, Jr., Chief Judge.
A RGUED O CTOBER 20, 2010—D ECIDED D ECEMBER 9, 2010
Before F LAUM, R IPPLE, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Orlandes Nicksion and Mark
Cubie, along with several others including Nicksion’s
cousin, Ronald Terry,1 were charged with drug trafficking
1
Terry pled guilty to drug trafficking conspiracy and was
sentenced to a term of 260 months’ imprisonment. He appealed
(continued...)
2 Nos. 09-3732 & 09-3755
conspiracy and various drug and gun offenses. After
withdrawing his guilty plea,2 Nicksion proceeded to
trial. A jury subsequently convicted him of drug traf-
ficking conspiracy, in violation of 21 U.S.C. § 846, aiding
the discharge of a firearm during the drug trafficking
conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(iii),
and being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). He was sentenced to a total term
of 480 months’ imprisonment. Cubie pled guilty—and
did not seek to withdraw his plea—to drug trafficking
conspiracy, in violation of 21 U.S.C. § 846, and carrying a
firearm during a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i), while preserving pretrial
issues for appeal. He was sentenced to a total term of 295
months’ imprisonment.
Both men now appeal but challenge different rulings.
Nicksion argues that his confrontation clause rights were
violated at trial when the district judge admitted out-of-
court statements implicating Nicksion in the homicide
of Earl Benion, which was used to prove the firearm
offense under § 924. Cubie, on the other hand, argues
that his pretrial motion to suppress evidence seized from
1
(...continued)
an adverse decision on a pretrial matter, and we affirmed.
See United States v. Terry, 572 F.3d 430 (7th Cir. 2009).
2
Nicksion sought withdrawal because he did not understand
when he pled guilty that the government might argue at
sentencing that a 2002 homicide (discussed later in this opin-
ion) was attributable to him.
Nos. 09-3732 & 09-3755 3
his car during a traffic stop was improperly denied. He
also contends that the district judge should have granted
his request for a pretrial proffer or hearing regarding the
admissibility of co-conspirator statements and that the
judge made multiple errors at sentencing. We begin
with Nicksion and the facts as established at his trial.
The trial consisted of two main components: the drug
trafficking conspiracy and the Benion homicide. Nicksion’s
arguments on appeal only concern the latter. To briefly
summarize the former, the evidence showed that, from
2002 to 2005, Nicksion, Cubie, Terry, and others were
involved in procuring large quantities of cocaine, crack,
and marijuana from Chicago sources for distribution in
Milwaukee, Wisconsin. In general, Nicksion and Cubie
would obtain the drugs and provide Terry with a supply
to sell. The conspirators used an apartment in a duplex
owned by Nicksion’s great-uncle, Robert Bridges, and
his wife for drug trafficking. At times, Bridges also
assisted with drug sales.
The evidence of the homicide showed that, on Septem-
ber 18, 2002, Benion’s son, Sirus (age twelve at the time),
saw Nicksion and Terry repeatedly drive by his home in
a silver Monte Carlo with Illinois plates, while his
father was outside. At one point, Nicksion blew Benion
a kiss. Terry shot Benion that night, and Benion died the
next day.
Immediately after the shooting, Terry, Cubie, Nicksion,
Nicksion’s father, and Bridges all met in Bridges’ apart-
ment. (Nicksion had previously told Bridges, during a
meeting with Terry and Cubie, that they intended to
4 Nos. 09-3732 & 09-3755
hurt Benion if he did not pay a drug debt.) Over
Nicksion’s hearsay and confrontation objections, Bridges
testified that Terry then confessed to shooting Benion
because of the debt owed to Cubie, Nicksion, and Terry.
Nicksion was quiet during the meeting. But later, when
Benion’s obituary appeared in the newspaper, Nicksion
told Bridges that Benion “should have paid us our money.”
Later that month, Terry got rid of the murder weapon
by selling it to Frederick Bonds. (Bonds, a drug dealer by
trade, had previously seen Terry with the same gun and
had learned from Terry that Benion owed money to
Nicksion.) Terry told Bonds that he (Terry) needed to get
rid of the gun because it was “hot.” Over Nicksion’s
hearsay and confrontation objections, Bonds testified
that Terry said that Nicksion and he went looking for
Benion, there was an argument over money, and he
(Terry) shot Benion. The gun was later recovered from
Bonds and traced to the homicide.
Terry also confessed to Darin Palmer, a childhood
friend who worked drug houses with Terry. In the fall of
2003, Palmer learned that Terry’s drug source was
Nicksion. Over Nicksion’s hearsay and confrontation
objections, Palmer testified that, about a year later, while
in a drug house, Terry said that he killed Benion over a
drug debt and had been compensated for the shooting.
Milwaukee police detective Chad Wagner investigated
the Benion homicide. Wagner eventually contacted Avis
Rent-A-Car after learning of a vehicle that he “believe[d]”
was linked to the homicide. Over Nicksion’s hearsay
objection (he later objected to similar testimony on con-
Nos. 09-3732 & 09-3755 5
frontation grounds as well), Wagner testified that an
Avis employee told him that, on August 18, 2002,
Melissa Zaragoza rented a silver Monte Carlo with
Illinois plates. Officers followed up with Zaragoza, who
admitted to knowing Nicksion’s wife, Nicksion, Benion,
and Terry but denied renting the car in question. Eventu-
ally, the car was found, but it yielded no evidence re-
garding the murder or Nicksion.
Prior to his trial, Nicksion was detained for several
months with inmate Trenton Gray. Nicksion eventually
told Gray that Terry had been involved in the Benion
shooting. Nicksion further explained that Terry and he
had gone to collect a drug debt from Benion, when Terry
shot and killed him.
Nicksion argues that the district judge should not have
admitted the testimony of Bonds, Bridges, Palmer, and
Wagner. This testimony, Nicksion asserts, was the only
evidence linking him to the Benion homicide, which, to
repeat, supported his firearm conviction under § 924. In
his opening brief, Nicksion only appears to invoke the
confrontation clause of the Sixth Amendment, making
our review de novo. United States v. Turner, 591 F.3d 928,
932 (7th Cir. 2010). In his reply brief, however, Nicksion
claims that he also raised a hearsay argument. That
issue, if properly preserved, is reviewed for an abuse of
discretion. United States v. Harris, 585 F.3d 394, 398 (7th
Cir. 2009).
Bonds, Bridges, and Palmer all testified that Terry
confessed to shooting Benion while Nicksion and Terry
were trying to collect on a drug debt. As Nicksion con-
6 Nos. 09-3732 & 09-3755
cedes, there is no confrontation clause problem here
because Terry’s statements were not testimonial. See
Davis v. Washington, 547 U.S. 813, 823-24 (2006) (holding
that, under Crawford v. Washington, 541 U.S. 36 (2004),
the confrontation clause applies only to testimonial hear-
say); see also Melendez-Diaz v. Massachusetts, ___ U.S. ___,
129 S. Ct. 2527, 2536 (2009) (explaining that Ohio v.
Roberts, 448 U.S. 56 (1980), was overruled by Crawford).
The government argues that this resolves the matter
because Nicksion did not preserve a hearsay argument
in his opening brief. See United States v. Dabney, 498
F.3d 455, 460 (7th Cir. 2007) (stating that arguments not
raised in the opening brief are waived).
Even giving Nicksion the benefit of the doubt on the
preservation issue, Terry’s statements were made in
furtherance of the conspiracy and therefore admissible
under Federal Rule of Evidence 801(d)(2)(E). Terry’s
statement to Bonds was made in an attempt to get rid
of the murder weapon. He made his statement to
explain why he needed to sell the gun—namely, because
it was “hot.” Terry’s statement to Bridges occurred im-
mediately after the shooting, while he and his co-con-
spirators, including Nicksion, were discussing how to
handle it.3 The statement to Palmer was more attenuated
from the homicide but still furthered the conspiracy.
Specifically, Terry confessed at a drug house, while he
3
Because Nicksion heard but did not object to Terry’s confes-
sion to Bridges, the statement was also admissible under
Rule 801(d)(2)(B).
Nos. 09-3732 & 09-3755 7
was working for Nicksion and Cubie, in an effort to
explain his relationship with them to a fellow drug dealer.
Detective Wagner’s testimony is a little trickier because
it implicates the confrontation clause. The government’s
first argument on this issue is that Nicksion is now chal-
lenging testimony to which he did not object at trial.
Nicksion’s complaint on appeal is with Wagner’s state-
ment that he “believe[d]” that an Avis rental car was
linked to the homicide. And, in fact, there was no objec-
tion to this testimony at trial. Later, when Wagner said
that an Avis supervisor told him that, shortly before the
murder, Melissa Zaragoza rented a silver Monte Carlo
with Illinois plates, Nicksion finally lodged an objection.
As that statement was clearly not offered for the truth
of the matter asserted—that is, the government was not
trying to prove that Zaragoza rented the car in question—
it is not surprising that Nicksion has abandoned the
argument. We may still review the admission of
Wagner’s preceding testimony regarding his “belief,” but
only for plain error. See United States v. Akinrinade, 61
F.3d 1279, 1283 (7th Cir. 1995).
Even assuming an “error” that was “plain” (a stretch,
considering that Wagner never recounted statements
that he solicited to form his “belief” and simply appeared
to be explaining the course of his investigation), the
testimony clearly did not affect Nicksion’s “substantial
rights.” See United States v. Olano, 507 U.S. 725, 732 (1993).
First, other evidence supported a connection between
the car and the homicide. Zaragoza, in whose name
the car was rented, admitted to knowing Nicksion’s
8 Nos. 09-3732 & 09-3755
wife, Nicksion, Benion, and Terry. And Sirus Benion, the
12-year-old boy you’ll recall, testified that he saw
Nicksion and Terry repeatedly drive by his house in a
silver Monte Carlo with Illinois plates on the day of his
father’s shooting. Second, Terry’s confessions to Bonds,
Bridges, and Palmer, which we already deemed admis-
sible, were enough to implicate Nicksion.
But the final nail in the coffin is that none of the chal-
lenged statements were necessary to prove Nicksion’s
firearm offense. Nicksion himself admitted (or so the
jury under the circumstances could easily conclude) to
his involvement in the murder by: (1) telling Bridges,
upon seeing Benion’s obituary, that Benion “should
have paid us our money” and (2) telling Gray that Terry
and he had gone to collect a drug debt from Benion,
when Terry shot and killed him. And let’s not forget
that the gun that Terry sold to Bonds was determined to
be the murder weapon. Thus, any error in the admission
of the statements was clearly harmless. See United States
v. Martin, 618 F.3d 705, 730 (7th Cir. 2010) (applying
harmless error analysis to confrontation clause viola-
tion); United States v. Sawyer, 558 F.3d 705, 713-14 (7th
Cir. 2009) (applying harmless error analysis to hearsay
violation). Having rejected Nicksion’s arguments, we
now turn to Cubie and the facts as established at the
evidentiary hearing on his motion to suppress.
On January 28, 2005, a confidential informant made a
controlled purchase of a half kilogram of cocaine from
Cubie. In the early afternoon on February 2, the informant
made a controlled payment of $5,000 to Cubie for the
Nos. 09-3732 & 09-3755 9
previous half kilogram purchase. After the payment, law
enforcement kept Cubie under constant surveillance
and observed him making numerous stops and engaging
in what appeared to be other drug-related transactions.
That evening, detective Kenneth Smith advised officers
Brian Brosseau and Dennis DeValkenaere of the investiga-
tion into Cubie’s drug trafficking, the controlled drug
buy on January 28, and the controlled drug payment
earlier that day. Smith also said that other officers had
seen Cubie participate in what they believed to be a
drug transaction a short time (approximately 20 min-
utes) previously. Smith requested that Brosseau and
DeValkenaere stop Cubie’s car.
Brosseau and DeValkenaere both testified that, when
they caught up to Cubie’s vehicle, he changed lanes
quickly without using a turn signal, causing Brosseau to
slam on his brakes. There were minor inconsistencies in
the officers’ testimony—for example, Brosseau testified
that Cubie veered suddenly to the left, while
DeValkenaere said that Cubie veered suddenly to the
right. According to Cubie’s passenger, Donald Buchanan,
however, Cubie never made any abrupt lane changes.
Minor inconsistencies aside, Brosseau activated his
siren and pulled Cubie’s car over.
Brosseau approached Cubie, explained that he had
stopped him for a traffic violation, and asked for iden-
tification. Cubie calmly reached into the back seat and
retrieved his license from a black leather briefcase. He
ultimately was issued a traffic ticket. Because of the
information he received from Smith regarding Cubie’s
10 Nos. 09-3732 & 09-3755
drug activities, Brosseau asked Cubie to get out of the
car and stand near the rear of the vehicle. Buchanan
was also taken to the rear of the vehicle.
DeValkenaere then requested permission to search the
car. According to the officers, Cubie calmly replied, “Yes.
Go ahead.” Buchanan, however, testified that he never
heard Cubie give consent. (Buchanan also testified that
he never saw the officers take Cubie out of the vehicle
or search the car.) Brosseau began searching and located
a .22-caliber pistol in the car’s center console. The
officers then placed Cubie and Buchanan in handcuffs.
DeValkenaere continued to search the car and found
cocaine, marijuana, and money in the black leather brief-
case. He also found a white grocery bag containing
money under the front driver’s seat.
In his recommendation to the district judge, a
magistrate judge found that Brosseau and DeValkenaere
were credible witnesses and Buchanan was not. The
magistrate judge also found that: (1) the stop of Cubie’s
vehicle was justified based on his traffic violation; (2) the
officers had probable cause to stop and arrest Cubie
based on the January 28 drug buy and the February 2
drug payment; and (3) the search of the car was
justified both under the search-incident-to-arrest excep-
tion in New York v. Belton, 453 U.S. 454 (1981), and because
Cubie gave voluntary consent. The district judge
adopted the magistrate judge’s recommendation and
denied the motion to suppress. He also hinted—but did not
decide—that the stop was also justified based on the
collective knowledge of the officers about Cubie’s illegal
activities earlier that day.
Nos. 09-3732 & 09-3755 11
Cubie argues that his motion was improperly denied.
When considering a motion to suppress, we review legal
questions de novo and findings of fact and credibility
determinations for clear error. United States v. Wesela,
223 F.3d 656, 660 (7th Cir. 2000). Probable cause deter-
minations are mixed questions of law and fact that
we review de novo. United States v. Williams, ___ F.3d ___,
2010 WL 4157339, at *3 (7th Cir. Oct. 25, 2010). A finding
is clearly erroneous if we are “left with the definite
and firm conviction that a mistake has been made.” United
States v. Gravens, 129 F.3d 974, 978 (7th Cir. 1997).
Cubie first claims that the stop of his vehicle was
illegal because he did not commit a traffic violation. This
argument is easily dismissed because Cubie is basically
taking issue with the magistrate judge’s credibility deter-
minations. To repeat, the judge found that the officers,
who said that Cubie deviated from his lane (they only
disagreed on minor details), were credible witnesses,
and Buchanan, who said that Cubie did not deviate
from his lane (he also said that the officers never
removed Cubie or searched the vehicle), was not. There
is no evidence of clear error on this point.
Cubie next argues that the officers did not have
probable cause to arrest him. Under the “collective knowl-
edge” doctrine, the officers who actually make the
arrest need not personally know all the facts that con-
stitute probable cause if they reasonably are acting at the
direction of other officers. United States v. Parra, 402 F.3d
752, 764 (7th Cir. 2005). In other words, “[t]here is no
Fourth Amendment violation if the knowledge of the
12 Nos. 09-3732 & 09-3755
officer directing the stop, search, or arrest—or the collec-
tive knowledge of the agency for which he works—is
sufficient to constitute probable cause.” Williams, 2010
WL 4157339, at *4.
Here, law enforcement collectively knew that: (1) a
confidential informant made a controlled drug pur-
chase from Cubie five days earlier; (2) the informant
made a controlled drug payment of $5,000 to Cubie on
the day of the stop; and (3) Cubie engaged in what ap-
peared to be other drug transactions shortly before the
stop. This information, which provided sufficient reason
to believe that Cubie had committed a crime, may be
imputed to Brosseau and DeValkenaere, who were in
communication with Smith. See United States v. Nafzger,
974 F.2d 906, 911 (7th Cir. 1992) (“[W]hen officers are
in communication with each other while working
together at a scene, their knowledge may be mutually
imputed even when there is no express testimony that
the specific or detailed information creating the justifica-
tion for a stop was conveyed.”).
Cubie’s biggest complaint is that the officers were not
justified in searching his car, either under the search-
incident-to-arrest exception or a theory of voluntary
consent. Regarding the former, Cubie relies heavily on
Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710 (2009), which
was decided four months after final judgment was entered
in his case. As we recently recognized in United States
v. Stotler, 591 F.3d 935 (7th Cir. 2010):
Gant backed off a bit from Belton and held that “[p]olice
may search a vehicle incident to a recent occupant’s
Nos. 09-3732 & 09-3755 13
arrest only if the arrestee is within reaching distance
of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle con-
tains evidence of the offense of arrest.”
Id. at 939 (quoting Gant, 129 S. Ct. at 1723).
But we also noted that Gant explicitly recalled, and did
not curtail, the automobile exception to the warrant
requirement in United States v. Ross, 456 U.S. 798 (1982).
Stotler, 591 F.3d at 940; see also Gant, 129 S. Ct. at 1721.
Under that rule, if there is probable cause to believe that
a vehicle contains evidence of criminal activity, police
may search any area in which the evidence might be
found. Gant, 129 S. Ct. at 1721. Thus, unlike the searches
described in the final clause of the holding in Gant,
“Ross allows searches for evidence relevant to offenses
other than the offense of arrest, and the scope of the
search authorized is broader.” Id.
Here, as we previously discussed, law enforcement
had Cubie under constant surveillance on the day of the
stop and saw him accept a $5,000 drug payment and
engage in other drug transactions. In addition to
justifying Cubie’s stop and arrest, this information
also provided sufficient reason to believe that the
vehicle (and any vessels inside the vehicle) contained at
least the buy money and probably other evidence of
drug trafficking. The fact that Brosseau and DeValkenaere
actually may have relied on other justifications for
the search, such as the search-incident-to-arrest excep-
tion or Cubie’s purported consent, is irrelevant. See Wil-
liams, 2010 WL 4157339, at *6-7. So the denial of Cubie’s
motion to suppress stands.
14 Nos. 09-3732 & 09-3755
Cubie’s remaining arguments merit little discussion.
First, he argues that the district judge improperly denied
his request for a pretrial proffer or hearing regarding
the admissibility of alleged co-conspirator statements.
This ruling, Cubie maintains, had a substantial impact
on his decision to enter a guilty plea. We review the
judge’s decision for an abuse of discretion. United States
v. Hunt, 272 F.3d 488, 494 (7th Cir. 2001).
Under United States v. Santiago, 582 F.2d 1128 (7th Cir.
1978), a district judge must make a ruling on the admissi-
bility of co-conspirator statements prior to their formal
acceptance as evidence at a trial. We have, however,
approved various procedures for fulfilling this require-
ment, including conditionally admitting the evidence
without a proffer or pre-trial hearing subject to eventual
supporting evidence at trial (risking, of course, a
possible mistrial). United States v. Cox, 923 F.2d 519, 526
(7th Cir. 1991). This is exactly what happened here. The
district judge ruled that he would conditionally admit
the alleged co-conspirator statements, which the gov-
ernment had already disclosed to counsel for all defen-
dants in discovery materials, subject to supporting
proof at trial. So there was no abuse of discretion. More-
over, this is a no-harm-no-foul situation because the
judge eventually found that the government had pro-
vided sufficient supporting proof to admit the evidence
at Nicksion’s trial. The statements therefore would have
been admissible against Cubie had he not pled guilty.
Cubie next challenges the district judge’s calculation of
drug quantity at sentencing. We review this factual
Nos. 09-3732 & 09-3755 15
finding for clear error. United States v. Krasinski, 545
F.3d 546, 551 (7th Cir. 2008). Cubie says that a “fair esti-
mate” of the drug quantity attributable to him is 49.9
kilograms of powder cocaine, which would put him at a
base offense level of 34, instead of 36. To get to that
amount, he dismisses as “unreliable” a multitude of
evidence of additional drug weight in the pre-
sentence report (PSR) simply because it was provided
by cooperating defendants. This is an insufficient
showing of error. See United States v. Mustread, 42 F.3d
1097, 1102 (7th Cir. 1994) (“[A defendant challenging
the PSR] must produce some evidence that calls the
reliability or correctness of the alleged facts into ques-
tion.”) (citation omitted). But, even ignoring those ac-
counts, Cubie’s estimate is still too low because, as the
district judge found, Cubie neglected to include the 35
grams of crack seized from him during the February 2,
2005, traffic stop. When that amount is added, Cubie’s
base offense level is 36.
Cubie also argues that his criminal history category
(two) overstated the seriousness of his criminal history.
We review a district judge’s refusal to apply a lower
criminal history category under U.S.S.G. § 4A1.3 for an
abuse of discretion. United States v. Turner, 569 F.3d 637,
643 (7th Cir. 2009). Cubie’s first contention—that his
only prior drug conviction (for PCP distribution)
involved a case that had “languished for five years” before
being resolved—is frivolous because it is based on a
typographical error in the PSR. Moreover, Cubie was on
supervision for another drug offense when he was
arrested for PCP distribution. Cubie’s criminal history,
16 Nos. 09-3732 & 09-3755
unlike the one described in application note three to
§ 4A1.3, therefore does not involve merely “minor” of-
fenses. The district judge was well within his discretion
to find that Cubie’s criminal history category was appro-
priate.
Cubie next claims that information regarding the
Benion homicide should have been excised from the
PSR, even though the district judge ruled that he would
not consider it at sentencing and took steps to insure
that it would not affect Cubie’s prison status. But Cubie
cites no authority for this assertion and fails to identify
any harm or request a remedy. So the argument is
waived. See United States v. Wimberly, 60 F.3d 281, 287 (7th
Cir. 1995).
Cubie’s last argument—that his sentence was unreason-
able—suffers from the opposite problem. That is, other
than repeating his criminal history, Cubie’s analysis is
wholly comprised of legal conclusions without any
factual support. Failing to identify anything about his
background or the offense that would call into doubt the
district judge’s determination, Cubie cannot possibly
overcome the presumption of reasonableness that we
apply to his within-guidelines sentence. See United States
v. Coopman, 602 F.3d 814, 819 (7th Cir. 2010).
For the foregoing reasons, the judgments of the district
court are A FFIRMED.
12-9-10