In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2370
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HARLES T ANNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:04-CR-00080-RL-PRC-1—Rudy Lozano, Judge.
A RGUED S EPTEMBER 8, 2010—D ECIDED D ECEMBER 17, 2010
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Appellant Charles Tanner
abandoned a promising career in boxing to become a
major player in a conspiracy to distribute large amounts
of cocaine. Like many other drug dealers, Tanner was
caught when his co-conspirators turned on him in an
attempt to reduce their own prison time. After a jury
convicted him for his role in the conspiracy, Tanner was
sentenced to life in prison, in large part because of the
2 No. 09-2370
significant amount of cocaine he helped distribute.
On appeal Tanner argues that the prosecutor violated
his Fifth Amendment privilege against self-incrimina-
tion by pointing out in closing arguments defense
counsel’s failure to rebut the government’s case. Tanner
also argues that the district court improperly admitted
certain evidence against him and instructed the jury
improperly. Tanner further asserts that the district court
miscalculated his advisory sentencing guideline range
and that life imprisonment is unreasonable.
None of Tanner’s arguments warrant reversal of his
conviction or his sentence. A number of individuals
other than Tanner could have been in a position to rebut
the government’s case, so we find no error in the pros-
ecutor’s closing argument. Except for certain testimony
regarding Tanner’s possession of a firearm on one
occasion, all of the complained-of evidence was clearly
admissible. The one exception was harmless. As for
the jury instructions, the district court’s only error was
in giving an “ostrich” instruction lacking sufficient
factual support in the trial record. That error was also
harmless. The district court properly calculated Tanner’s
sentence, and a life sentence was reasonable under these
circumstances. Accordingly, we affirm.
I. Factual Background
During an investigation of two crack houses in Gary,
Indiana, a law enforcement task force learned that a man
named Warren Moore was a mid-level dealer of crack
No. 09-2370 3
cocaine. Moore turned out to be a relatively minor player
in a larger drug distribution ring. Law enforcement
arrested him on April 20, 2004 and convinced him to
become a government informant. As an informant,
Moore made a controlled purchase of crack cocaine
from Erbey Solis on August 31, 2004, after which Solis
was arrested, and he in turn also agreed to become a
government informant.
The investigation into Moore revealed that appellant
Tanner was a high-level drug dealer, and Solis agreed to
help the government investigate Tanner’s drug dealing.
At the direction of law enforcement, Solis called Tanner
and arranged to sell Tanner 15 kilograms of cocaine. The
drug deal took place in the parking lot of a drugstore
in Gary, Indiana on September 1, 2004. Because it would
be unwise (for obvious reasons) to bring such a large
amount of real cocaine to the deal, law enforcement
provided Solis with 15 kilograms of simulated cocaine.
Tanner was arrested when he took possession of the
simulated cocaine from Solis.
Once in custody, Tanner quickly provided a full con-
fession implicating himself as a high-level cocaine
dealer. In that confession, Tanner identified his main
supplier of cocaine, from whom he claimed to have pur-
chased between 10 and 15 kilograms of cocaine on
previous occasions. Tanner also named another supplier
from whom he had purchased large amounts—between
5 and 10 kilograms at a time. Tanner further admitted
that he was attempting to purchase 15 kilograms of
cocaine from Solis at the time he was arrested, and he
4 No. 09-2370
said that he had purchased somewhere between 15 and
25 kilograms of cocaine from Solis in the past.
Tanner was indicted on charges of conspiracy to
possess cocaine with intent to distribute, and with at-
tempted possession of 5 kilograms or more of cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841
and 846. Tanner was tried on these charges alongside
alleged co-conspirator Lance Foster. Both Moore and
Solis testified to Tanner’s participation in a multi-state
conspiracy to distribute large quantities of crack cocaine.
Solis also testified as to his involvement in the sham
drug sale that led to Tanner’s arrest, and the prosecu-
tion played for the jury recordings of Tanner’s and
Solis’s phone calls planning that sale. Particularly
damning was the testimony of the two FBI agents who
took Tanner’s confession after his arrest. Those agents
testified that Tanner had admitted that he was part of a
large conspiracy to distribute drugs and that he was
attempting to purchase cocaine from Solis when he
was arrested. Tanner did not testify. He also did not
seriously challenge the government’s overwhelming
evidence of his guilt. Tanner chose instead to call a
number of character witnesses. The jury convicted Tanner
on both counts against him, and the district court sen-
tenced Tanner to life imprisonment.
II. Indirect Comments on Right to Remain Silent
Tanner’s primary argument on appeal is that the
district court should have declared a mistrial sua sponte
No. 09-2370 5
because the prosecution’s closing arguments infringed
his Fifth Amendment right to remain silent. We review
such allegations of prosecutorial misconduct not in a
vacuum, but in the larger context of the parties’ closing
arguments and the trial itself. See United States v. Holt,
817 F.2d 1264, 1275 (7th Cir. 1987), quoting United States
v. Buchbinder, 796 F.2d 910 (7th Cir. 1986). Our analysis
of Tanner’s claim starts with the specific parts of the
defendant’s closing argument that the prosecutor was
attempting to rebut.
During Tanner’s closing argument, defense counsel
stated:
I put witnesses on the stand, and I asked you to
believe them beyond a reasonable doubt, even though
I had no burden at all. No, I asked you just to believe
them. Believe them a little bit. What difference does
it make? [Tanner’s] defense is unrebutted. The gov-
ernment had the right to bring in witnesses to say he
had a horrible reputation for being a law abiding
citizen. Did they? Not one single one.
I rested [Tanner’s] defense. They stood up and said,
we rest in rebuttal. There was no rebuttal. The defense
is unrebutted.
After arguing that the government had failed to rebut
Tanner’s character witnesses, Tanner’s counsel con-
cluded: “Where . . . is the rebuttal of the defense? Where
are the witnesses that say that [Moore] is a truthful
person? Where is the witness that says [Tanner] is an
untruthful person? [The prosecution] had the right of
rebuttal, [but] didn’t use it.”
6 No. 09-2370
Responding in his rebuttal argument, the prosecutor
stated:
Defense counsel . . . got up and talked about what is
unrebutted. So [it was] unrebutted he was a good
boxer. This isn’t about boxing. . . . It’s unrebutted that
he’s a good character. Look at the evidence, we’re
not talking character witnesses. This isn’t I like
this guy, I don’t like that guy. This guy’s got a good
reputation, this guy doesn’t. We try this case, ladies
and gentlemen, on facts.
So if defense counsel wants to get up and say what’s
unrebutted, I’ll tell you what’s unrebutted. It’s unre-
butted, defense counsel didn’t say a single thing
about it, it’s unrebutted that his client . . . was there to
pick [the 15 kilograms of cocaine] up. It’s unrebutted
that he did pick that up on this date. It’s unrebutted
that defense counsel didn’t say a single word about
it, that it’s his client on video . . . and that he thinks
it’s 15 kilos of cocaine. That, ladies and gentlemen,
is unrebutted. Defense counsel didn’t say a single
word that this isn’t my guy.
At this point, Tanner’s counsel voiced his belief that
these comments came “dangerously close to a certain
area of law,” but he did not object or state a specific legal
basis for an objection. Absent more specific complaints
from defense counsel, the court reminded the jury that
Tanner “does not have to prove anything.” Tanner’s
counsel voiced his disapproval of this statement but,
once again, failed to actually object. Absent any objec-
tion, the prosecution continued:
No. 09-2370 7
Defendant does not have to prove anything . . . . But
defense counsel gave you a closing argument in which
he talks about what was unrebutted. It is unrebutted
that is this guy in the video. Now I want you to watch
it. It’s unrebutted that he hasn’t said a single word
about it. That . . . Tanner thought that was cocaine. It’s
unrebutted . . . he thought this was directly cocaine. It’s
unrebutted that that was his guy right there trying to
get 15 kilos of cocaine.
Those phone calls . . . setting up the deal. Those are
unrebutted. Defense counsel has no word of doing
anything, he doesn’t have to say a single word, but
you have not heard a single thing which would lead
you to believe that that wasn’t his guy . . . on the
phone.
Tanner’s counsel finally objected at this point and, at a
side-bar, argued that the prosecution “came so close to
[saying that] the defendant did not testify.” The court
overruled the objection, and the prosecutor continued:
You have not heard a single thing from anyone to
suggest that those calls weren’t [Tanner], you never
heard a single peep of evidence. That’s not [Tanner]
setting up that deal. It’s unrebutted that when he’s
setting up that deal, he’s trying to get 15 kilos of
cocaine to distribute to his brothers. That is unrebut-
ted.
Ladies and gentlemen, perhaps the most important
thing that is unrebutted that you’ve heard nothing in
defense closing argument about is the defendant’s
own confession. It’s unrebutted that [Tanner] chose
8 No. 09-2370
on his own to meet with [two FBI agents]. Those two
FBI special agents, it’s unrebutted, sat downstairs
while [the] defendant poured out his heart to them,
and said I’m doing this for my brothers. . . . It’s unre-
butted that he confessed like that to a major
narcotics conspiracy of over five kilos. . . . .
It’s unrebutted that he tried to give up . . . a boxer
that supplied him. It’s unrebutted that he talked
about [another of his suppliers].
Tanner’s counsel objected again, but that objection was
overruled. The prosecution concluded by noting, “It’s
unrebutted that [Tanner] confessed that he was getting
drugs from [one of his suppliers]. It’s unrebutted . . . that
he in his own words confessed to this entire conspiracy
to not one, but two FBI agents.”
Did these comments require a mistrial? As a general
matter, “a mistrial is appropriate when an event
during trial has a real likelihood of preventing a jury
from evaluating the evidence fairly and accurately, so
that the defendant has been deprived of a fair trial.”
United States v. Collins, 604 F.3d 481, 489 (7th Cir. 2010).
A prosecutor’s alleged misconduct during closing argu-
ments requires a mistrial only if (1) the conduct was
actually inappropriate; and (2) in light of the entire
record, the inappropriate conduct deprived the defendant
of a fair trial. United States v. Cheska, 202 F.3d 947, 950
(7th Cir. 2000). We typically review a district court’s
refusal to declare a mistrial for an abuse of discretion.
United States v. Mannie, 509 F.3d 851, 856 (7th Cir.
2007), citing United States v. Canino, 949 F.2d 928, 937 (7th
No. 09-2370 9
Cir. 1991). Here, however, Tanner’s counsel (eventually)
objected to the prosecutor’s comments but never
requested a mistrial, so our review is for plain error.
United States v. Harris, 325 F.3d 865, 871 (7th Cir. 2003).1
On review for plain error, a convicted defendant has
the burden to show that (1) the error complained of
actually occurred; (2) the error was clear or obvious;
(3) the error affected his substantial rights (i.e., he
probably would not have been convicted absent the
error); and (4) the error seriously impugned the judicial
proceeding’s fairness, integrity, or public reputation.
United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010).
As a result, Tanner must show not only that the
district court erred by failing to declare a mistrial, but
that it was clear and obvious that a mistrial was neces-
sary. In other words, Tanner must convince us
that it should have been obvious to the district court
both that an error occurred and that the error deprived
him of a fair trial. Cf. Cheska, 202 F.3d at 950. Even
then, reversal is appropriate only if he can show that
the remarks probably changed the outcome of the pro-
ceedings. United States v. Bowman, 353 F.3d 546, 550
(7th Cir. 2003), quoting United States v. Sandoval, 347
F.3d 627, 631 (7th Cir. 2003).
1
Otherwise, we would blur the lines between an objection,
which brings a perceived error to the court’s attention, and
a request for a mistrial, which indicates not only that an
error may have occurred but that the defendant believes
that error to be so severe as to require the impanelment of a
new jury for a new trial.
10 No. 09-2370
Here, the prosecutor never commented directly on
Tanner’s exercise of his right to remain silent. Cf. Griffin
v. California, 380 U.S. 609, 614 (1965) (forbidding “com-
ment on the refusal to testify”). Absent such direct com-
ment, “[t]he right against self-incrimination is violated
only when ‘1) it was the prosecutor’s manifest intention
to refer to the defendant’s silence, or 2) the remark was
of such a character that the jury would “naturally and
necessarily” take it to be a comment on the defendant’s
silence.’ ” Rodriguez v. Peters, 63 F.3d 546, 561 (7th Cir.
1995), quoting United States v. Donovan, 24 F.3d 908, 916
(7th Cir. 1994).
Nothing in the transcript of closing arguments
indicates a manifest (i.e., obvious or apparent) intent to
refer to Tanner’s silence. As ill-advised as his com-
ments may have been, see United States v. Butler, 71 F.3d
243, 255 (7th Cir. 1995) (noting that “we always urge
prosecutors to be cautious in making this type of state-
ment”), the prosecutor appears to have intended only
to respond to Tanner’s counsel’s closing argument that
none of his character witnesses had been rebutted. In
fact, the prosecutor explicitly said a number of times
that Tanner’s counsel—not Tanner himself—had not
rebutted any of the government’s evidence in his
closing. See United States v. Mietus, 237 F.3d 866, 872 (7th
Cir. 2001) (finding no error in part because prosecutor’s
statements “merely referred to what the defendants,
through their lawyers . . . had argued during the trial”).
It is a closer issue whether the jury would have “natu-
rally and necessarily” understood the prosecutor’s state-
No. 09-2370 11
ments as comments on Tanner’s failure to testify. In the
past, we have applied this test strictly, even literally: “A
prosecutor’s comment that the government’s evidence
is . . . unrebutted will violate [the Fifth Amendment] if
the only person who could have rebutted the evidence
was the defendant.” Id. at 871 (emphasis added); see
also Williams v. Lane, 826 F.2d 654, 665-66 (7th Cir. 1987)
(finding error where defendant was “the only other
possible defense witness who had failed to testify”);
United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir.
1987) (“We have taken Griffin to forbid comment on
the defendant’s failure to call witnesses, when the only
potential witness was the defendant himself.”). After
all, a comment does not necessarily implicate a de-
fendant’s silence (and thereby penalize him for refusing
to testify) if another witness could rebut the prosecu-
tion’s case. See United States v. Buege, 578 F.2d 187, 188
(7th Cir. 1978) (“[W]hen a prosecutor refers to testimony
as uncontradicted where the defendant has elected not
to testify and when he is the only person able to
dispute the testimony, such reference necessarily
focuses the jury’s attention on the defendant’s failure to
testify.”), citing United States v. Handman, 447 F.2d 853, 855
(7th Cir. 1971). A speculative possibility that some
third party could have testified for the defense is not
enough, however. See Freeman v. Lane, 962 F.2d 1252,
1260 (7th Cir. 1992) (“Our cases have recognized that a
prosecutor may not comment concerning the uncontra-
dicted nature of the evidence when ‘it is highly unlikely
that anyone other than the defendant could rebut the
evidence.’ ”), quoting United States v. DiCaro, 852 F.2d 259,
12 No. 09-2370
263 (7th Cir. 1988); Buege, 578 F.2d at 188-89 (finding
error where only possible witness other than defendant
did not even hear the statements he could supposedly
contradict); Handman, 447 F.2d at 855 (reversing where
nothing in record showed that anyone other than the
defendant could have “challenged or contradicted” the
testimony against him).
Under this demanding standard, we conclude that
the jury would not necessarily have believed that the
prosecutor was commenting on Tanner’s failure to tes-
tify. Tanner was accused of having sold drugs not on
his own, but as part of a large conspiracy. The pos-
sibility that even one of his alleged co-conspirators
might have testified on his behalf is enough to dispel any
constitutional concerns. See Mietus, 237 F.3d at 872
(“[W]here an accomplice could have provided testimony
to rebut a part of the government’s case, the prose-
cutor’s statement that that evidence was unrebutted
[will] not be taken as an impermissible comment on the
defendant’s silence.”); United States v. Aldaco, 201 F.3d
979, 988 (7th Cir. 2000) (finding no error where
defendant’s three accomplices were available to rebut
government witness’s allegations); Butler, 71 F.3d at 255
(affirming because other gang members were present
when defendant was arrested). A jury need not speculate
about the possibility of third-party testimony on a de-
fendant’s behalf when, as here, the defendant is accused
of conspiring with a large number of people, any of
whom could have testified in his defense and rebutted
the government’s evidence. Cf. United States ex rel.
No. 09-2370 13
Adkins v. Greer, 791 F.2d 590, 598 (7th Cir. 1986) (finding
no error where it was “not hard to imagine” that others
could know of the defendant’s illegal acts). Furthermore,
Tanner’s girlfriend was with him when he was
arrested and, at the very least, could have testified on
Tanner’s behalf regarding the events leading to his arrest.
See United States v. McClellan, 165 F.3d 535, 548 (7th
Cir. 1999) (finding no error because defendant’s girl-
friend, who was with defendant at time of his arrest,
could have testified). Of course it is possible, even likely,
that neither Tanner’s co-conspirators nor his girlfriend
were actually willing and able to testify on Tanner’s
behalf, but it matters for our analysis only whether it
is particularly likely that “the defendant was the only
person who could rebut the evidence” referred to by the
prosecution in its closing. Adkins, 791 F.2d at 598
(emphasis in original). On this record, a number of indi-
viduals other than Tanner could have rebutted the gov-
ernment’s case, if in fact there had been a factual basis
for rebutting it.
This analysis holds true despite the fact that the pros-
ecutor specifically mentioned that Tanner’s confession
was unrebutted. On at least an intuitive level, this com-
ment seems to be the most problematic—who other than
Tanner could have rebutted his own confession to law
enforcement? A moment’s reflection, however, reveals
the answer to this question. Certainly, Tanner could
have taken the stand and contradicted the agents’ testi-
mony about his confession. But Tanner also could
have rebutted this testimony by calling witnesses to
14 No. 09-2370
undermine the substance of the alleged confession, by
testifying that he was not a drug dealer. Again, there is
no reason to think that Tanner’s girlfriend and alleged co-
conspirators could not have been available to provide
such testimony if there had been a factual basis for it.
In sum, we hold that the prosecutor’s comments did
not plainly implicate, even indirectly, Tanner’s constitu-
tional right to remain silent. Absent such error, “the
inquiry is over, and there is no reason to grant a new
trial.” Cheska, 202 F.3d at 950.
III. Evidentiary Issues
Tanner next raises a number of objections to evidence
that was admitted at his trial. In particular, Tanner
claims that the district court erred by allowing evidence
regarding his possession and use of firearms at a
New Year’s Eve party in 1999, his affiliation with a street
gang known as the Renegades, and his presence at a
meeting where marijuana use and legal gambling took
place. We review these evidentiary matters for an abuse
of discretion, unless Tanner failed to object at trial, in
which case our review is for plain error. See United
States v. Alviar, 573 F.3d 526, 541 (7th Cir. 2009).
A. Firearm Possession
Prior to trial, the government gave notice that it
planned to offer testimony that Tanner had “possessed
firearms during drug transactions” and “purchased
No. 09-2370 15
numerous firearms from a government witness,” and “that
numerous firearms were seized at [Tanner’s mother’s
home] on December 31, 1999, and that the co-conspirators
were present at the home.” Tanner’s co-defendant
Foster moved to exclude the evidence regarding the
weapons seized from Tanner’s mother’s home, on the
grounds that it was irrelevant, unduly prejudicial, and
evidence of prior bad acts. Tanner joined the motion.
The district court denied the motion, reasoning that guns
are admissible as drug traffickers’ tools of the trade.
At trial, the prosecution offered extensive testimony
from two Gary, Indiana, police officers detailing
Tanner’s use of firearms at a New Year’s Eve party on
December 31, 1999. The officers had been on patrol when
they heard a large number of shots fired nearby. The
officers followed the sound of gunfire to Tanner’s
mother’s home, where they discovered that a number
of partygoers had been firing guns in the air to
celebrate the new year. The officers briefly detained
the partygoers and confiscated numerous weapons
found at the scene. They made no arrests and did not
identify any of the partygoers. Cooperating witness
Moore, who had attended the party, confirmed that
Tanner had fired an assault rifle that night. On the basis
of this testimony, the government introduced into
evidence a number of guns that were seized at the New
Year’s party. Tanner argues that the district court erred
by allowing this evidence, on the grounds that it consti-
tuted evidence of prior bad acts, was irrelevant, and was
unduly prejudicial. We review this evidentiary issue for
16 No. 09-2370
an abuse of discretion. E.g., United States v. Gallardo, 497
F.3d 727, 732 (7th Cir. 2007).2
Upon review of the trial record, we conclude that the
law enforcement officers’ testimony should have been
excluded under Federal Rule of Evidence 403, which
requires relevant evidence to be excluded if its
prejudicial impact substantially outweighs its probative
value. Under the tools-of-the-trade doctrine, Tanner’s
possession of a firearm on a prior occasion might be
relevant to the allegation that he is a drug dealer, United
States v. Rhodes, 229 F.3d 659, 661 (7th Cir. 2000), but the
specific probative value attached to that firearm will
vary from circumstance to circumstance. For example,
evidence that Tanner carried a concealed weapon on a
regular basis during the time he allegedly dealt in
illegal narcotics would have much greater probative
value than evidence that he had, during the same period
of time, borrowed a friend’s shotgun for a hunting trip
or rented a handgun for use at a firing range. In
other words, context is critical when determining the
probative value to assign to a defendant’s possession
and use of a firearm. Considered in context, the mere
fact that Tanner fired a gun of unknown ownership, not
during a drug deal but at a party celebrating the new
year, carries extremely little if any probative value for
the allegation that he was the ringleader of a multi-
state conspiracy to distribute cocaine.
2
Because we conclude that the error that occurred here
was certainly harmless, we decline to address the parties’
dispute over whether plain-error review is appropriate.
No. 09-2370 17
Probative value is only half of the inquiry under Rule
403 here. We must also determine the evidence’s prejudi-
cial impact—the likelihood that it will influence the jury
to decide a case on improper grounds, United States v.
Pulido, 69 F.3d 192, 201 (7th Cir. 1995)—to see whether
that prejudicial impact is substantial in relation to the
evidence’s probative value. See United States v. Torres,
977 F.2d 321, 328 (7th Cir. 1992) (“[T]he more probative
the evidence, the more the court will tolerate some
risk of prejudice, while less probative evidence will be
received only if the risk of prejudice is more remote.”).
Like probative value, prejudice must be determined in
context. Evidence that is only marginally prejudicial
when presented to the jury in one manner may be
greatly prejudicial when presented in another. See, e.g.,
id. at 329 (finding significant to its analysis of prejudice
that “no evidence beyond the essential facts . . . was
adduced,” without “exposing unnecessary details simply
to make the defendant look bad”). 3 Here, while testifying
about their seizure of the weapons from the New Year’s
Eve party, the officers offered up a great deal of extraneous
and prejudicial information. They made sure that the
jury was aware that Gary police officers had been shot
on previous New Year’s Eves, that the officers at the
party were “outmanned” and “out-gunned,” and that
the officers had never been to a crime scene where
they found more shell casings on the ground. One officer,
3
It is for this reason that trial courts often hesitate, or even
outright refuse, to allow certain relevant evidence (such as
firearms or autopsy photos) into the jury room.
18 No. 09-2370
for reasons that escape us, was even allowed to explain
that his wife was so scared by the events of that night
that she never again listened to her police scanner while
he was on patrol.
When the officers’ testimony is considered in its
entirety, it is clear that its prejudicial impact signif-
icantly outweighed its infinitesimal probative value for
the actual criminal case against Tanner. This testimony
established exactly one arguably relevant fact—Tanner’s
access to a gun at a party that took place five years
before his arrest—but was riddled with numerous “unnec-
essary details simply to make the defendant look bad.”
Id. Even under the deferential abuse-of-discretion stan-
dard, we conclude that this testimony should have been
excluded.4
This error proved harmless, however, and did not
affect the admissibility of the firearms themselves.
Even without the officers’ testimony regarding the
New Year’s Eve party, the jury would still have learned
that Tanner had possessed and used firearms, often in
the course of his drug dealing activities. That evidence
was entirely appropriate. In addition to Moore’s testi-
mony placing Tanner at the New Year’s Eve party,
4
We remind prosecutors that we endorsed the “tools-of-the-
trade” rationale to allow jurors limited access to relevant
information about drug dealers’ gun ownership or possession,
not to give prosecutors carte blanche to regale juries with
every last prejudicial and unnecessary detail of how it was
learned that a particular drug dealer possessed a gun.
No. 09-2370 19
Moore testified that Tanner had possessed firearms
during the period when he dealt drugs, that Moore
had sold Tanner a firearm in exchange for a reduction
in Moore’s drug debts, and that “Tanner own[ed] guns
because he was a drug dealer.” None of Moore’s testi-
mony was admitted in error, and his testimony was
sufficient to allow the introduction of the seized fire-
arms into evidence.5 Although the officers’ testimony
about the party was so unduly prejudicial (and such
a waste of time) relative to its nearly-nonexistent
probative value as to require its exclusion, that testi-
mony was cumulative and was not so prejudicial
relative to the extremely strong evidence of Tanner’s
guilt as to make us believe that its exclusion would
have made an acquittal even slightly more likely.
B. Gang Affiliation
Substantial testimony at trial indicated that Tanner
was the leader of a gang known as the Renegades. A
number of Renegades were members of the alleged con-
spiracy, and Moore testified that they sold drugs in
5
To the extent that Tanner argues that the firearms lacked
sufficient foundation, we again note that no rule of evidence
requires a “foundation” and that all relevant evidence is
generally admissible. Collins, 604 F.3d at 488, quoting A.I.
Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637-38 (7th Cir.
2001). When attorneys and judges refer to a lack of “founda-
tion,” they generally refer to a link missing in a chain of
logic needed to show that the evidence is actually relevant.
20 No. 09-2370
Indianapolis, Cincinnati, and Louisville. Tanner was
personally involved in the Renegades’ movement of drugs
to Cincinnati and Louisville. Tanner argues that this
testimony was inadmissible because it was irrelevant
and unduly prejudicial evidence of prior bad acts under
Federal Rule of Evidence 404(b).
Tanner’s argument on this point is without merit.
Despite its significant prejudicial potential, evidence of
Tanner’s affiliation with the Renegades was relevant and
admissible to show his participation in a criminal conspir-
acy with members of that very gang. United States v.
Westbrook, 125 F.3d 996, 1007 (7th Cir. 1997); see United
States v. Sargent, 98 F.3d 325, 328 (7th Cir. 1996) (“[G]ang
membership can be key to establishing criminal intent or
agreement to conspire.”); United States v. Thomas, 86 F.3d
647, 652-53 (7th Cir. 1996) (holding that gang evidence
helped demonstrate the existence of conspiracy and was
not unfairly prejudicial, and noting that the evidence
“helped demonstrate the existence of the conspiracy and
the connections between members of the conspiracy”).
Furthermore, the evidence concerning Tanner’s gang
affiliation was not evidence of “ ‘prior bad acts’ as that
term is understood,” given that it was direct “evidence
of the very drug distribution conspiracy with which
[Tanner] was charged.” See Collins, 604 F.3d at 488.6
6
Tanner also insists that it was improper to refer to the Rene-
gades as a gang because they were actually a loosely-associated
group of “freelancers.” While there was some testimony in-
dicating that the Renegades were only loosely organized, there
(continued...)
No. 09-2370 21
C. Marijuana Use & Legal Gambling
At one point, Moore testified that he, Tanner, and a
number of other people, had attended a meeting in a
hotel room on a riverboat casino. Moore admitted that
he had smoked marijuana at that meeting. Tanner
argues that this testimony implicated him as a gambler
and a drug user and constituted propensity evidence
inadmissible under Rule 404(b). Tanner failed to object
to this testimony at trial, so our review is once again
only for plain error.
Given that the meeting Moore attended was held at a
licensed casino, the jury could easily have assumed that
any gambling was legal. On review for plain error, then,
we could reverse only if we were willing to say that
testimony concerning legal gambling were so plainly
indicative of Tanner’s propensity to violate the law that
its exclusion would have probably resulted in his ac-
quittal. See Collins, 604 F.3d at 487. We simply cannot
say that. Many law-abiding Americans visit legal casinos
each year. It seems wholly unlikely that anyone would
conclude that their visits show a latent propensity to
break the law.
Nor was it error to allow Moore to testify about his
personal drug use on that occasion. Moore testified
6
(...continued)
was also ample testimony that they were in fact a street gang
that had broken off from the Gangster Disciples. Any reference
to the Renegades as a “gang” was justified from the testi-
mony and cannot be considered error.
22 No. 09-2370
only that he had smoked marijuana after someone at the
meeting had handed him a joint. He did not indicate
that Tanner had provided the marijuana or that Tanner
was even aware that Moore was smoking marijuana.
Contrary to Tanner’s assertions in his briefs (based on
a citation to an unrelated part of the trial record), Moore
did not testify that Tanner himself had smoked any
marijuana. Thus, any bad acts were those of witness
Moore, and Moore alone. Witness Moore’s acts simply
cannot be considered evidence of defendant Tanner’s
propensity to commit crime, however. Rule 404(b) forbids
the use of a person’s prior bad acts only to show that
same person’s later action in conformity therewith.
IV. Jury Instructions
Tanner next argues that the district court erred when
instructing the jury. He claims that the court erred by
giving the jury an “ostrich” instruction, by failing to
instruct the jury on the law regarding criminal con-
spiracies involving government informants, and by
failing to give any limiting instructions regarding the
evidence of Tanner’s gang affiliation and Moore’s drug
use. We ordinarily review a district court’s decision
whether or not to give a particular instruction for an
abuse of discretion, United States v. Wilson, 134 F.3d 855,
868 (7th Cir. 1998), but evaluate de novo whether an
instruction was appropriate as a matter of law, United
States v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009), quoting
United States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005).
Because Tanner presented none of these arguments to
No. 09-2370 23
the district court, however, our review is for plain error.
United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir. 1987).7
A. The “Ostrich” Instruction
Among its instructions to the jury, the district court
included an “ostrich” instruction (i.e., an instruction
informing the jury that it could consider Tanner’s
willful ignorance of any fact as his actual knowledge
of that fact). Tanner failed to object to this instruction,
which he now asserts was inappropriate as a matter of
law because the evidence did not show his willful igno-
rance of any fact at issue in the trial.
Generally, a jury instruction should be given only
when it addresses an issue reasonably raised by the
evidence. Wilson, 134 F.3d at 868, quoting United States
v. Stone, 987 F.2d 469, 471 (7th Cir. 1993). In particular,
an ostrich instruction is appropriate only when “(1) a
defendant claims a lack of guilty knowledge and (2) the
government presents evidence that suggests that the
defendant deliberately avoided the truth.” United States
v. Ciesiolka, 614 F.3d 347, 353 (7th Cir. 2010). This instruc-
tion must be given with some caution, however, lest
the jury get the mistaken impression that it may convict
7
Tanner’s reliance on our decision in United States v. Jackson,
103 F.3d 561, 569 (7th Cir. 1996), for a different standard of
review is misplaced, as that case only concerns when an inter-
vening change of law has rendered improper an instruction
given to the jury.
24 No. 09-2370
on the basis of mere negligence. Id., citing United States
v. Carrillo, 435 F.3d 767, 781 (7th Cir. 2006). For that
reason, an ostrich instruction should not be given
merely because a defendant’s knowledge of a particular
fact is necessary for a finding of guilt.
The government, which requested that the ostrich
instruction be given, claims that Tanner’s questioning
on cross-examination made this instruction necessary.
On cross-examination, defense counsel asked a law en-
forcement officer whether sophisticated drug dealers
normally transport drugs in plain view or are more
likely to conceal the drugs in containers or hidden com-
partments. The government asks us to construe this line
of questioning as an implicit assertion that Tanner was
unaware that he was supposed to be receiving drugs
from Solis on the night he was arrested. Although ques-
tions on cross-examination might indicate a defense of
lack of knowledge under at least some circumstances, see
United States v. Smith, 995 F.2d 662, 674 (7th Cir. 1993),
these particular questions could not reasonably be under-
stood to assert Tanner’s ignorance. And even if this line
of questioning could be understood that way, the gov-
ernment points to no evidence in the record showing
that Tanner “deliberately avoided the truth.” See Ciesiolka,
614 F.3d at 353 (concluding that ostrich instruction
was given in error where no evidence showed that de-
fendant avoided knowledge of his victim’s age). To the
contrary, the government’s evidence—Tanner’s confes-
sion, as well as the recordings of Solis’s telephone calls
arranging the drug deal with Tanner—made clear that
Tanner was well aware that Solis was supposed to
No. 09-2370 25
bring him 15 kilograms of cocaine. “[I]f the evidence
against the defendant points solely to direct knowledge
of the criminal venture, it would be error to give the
[ostrich] instruction.” United States v. Caliendo, 910 F.2d
429, 435 (7th Cir. 1990) (quotation omitted). Even
absent any objection, the district court erred by giving
an ostrich instruction here, where the government pre-
sented no evidence that Tanner deliberately attempted
to avoid any guilty knowledge.8
Although the ostrich instruction was given in error,
Tanner cannot establish that he was harmed by that
error. “Our plain error review is particularly light-
handed in the context of jury instructions,” United States
v. Granados, 142 F.3d 1016, 1023 (7th Cir. 1998) (quota-
tion omitted), and it is only in a rare case that “an
improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial
court,” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Ironi-
cally, the same evidence that helped establish the impro-
priety of the ostrich instruction renders that instruction
8
From the arguments in its briefs, it appears that the govern-
ment felt that an ostrich instruction was necessary in regard
only to Tanner’s attempted acquisition of cocaine from Solis.
But if Tanner had tried to learn precisely what substance
Solis had offered for sale, he would have discovered that the
substance was not actually illegal drugs and would not have
been interested in a deal. As we have recently explained, an
ostrich instruction is improper when applied to an issue
where “a defendant’s knowledge of the real truth would
actually exonerate him.” Ciesiolka, 614 F.3d at 352.
26 No. 09-2370
entirely harmless. The evidence left no room to doubt
that Tanner intended to obtain a large amount of
cocaine from Solis the night he was arrested. There is
no reason to believe that the jury convicted Tanner on
evidence showing only an innocent or negligent receipt
of illegal drugs. See Ciesiolka, 614 F.3d at 353, citing
Carrillo, 435 F.3d at 781.
B. Failure to Provide “Sears” Instruction and Limiting
Instructions
Tanner next argues that the jury should have been
instructed that (1) because Moore and Solis, two of Tan-
ner’s alleged co-conspirators, acted as government
agents for a time, Tanner could not have conspired with
either man during that time; and (2) Moore’s testimony
regarding legal gambling and marijuana use, as well as
the evidence of Tanner’s gang affiliation, could be con-
sidered only for the purposes allowed under Rule
404(b). Tanner failed to request any such instructions
at trial, so we would reverse only if the failure to give
the instructions resulted in a miscarriage of justice.
United States v. Clark, 989 F.2d 1490, 1500 (7th Cir. 1993);
see United States v. Bermudez, 526 F.2d 89, 97 (2d Cir.
1975) (“Failure to give limiting instructions is generally
held not to be plain error.”).
Tanner’s first assignment of error concerns the district
court’s failure to give what is generally known as a Sears
instruction, after the Fifth Circuit’s decision in Sears v.
United States, 343 F.2d 139 (5th Cir. 1965). Such an in-
No. 09-2370 27
struction informs the jury that a defendant’s agreement
with a government agent cannot support a charge of
criminal conspiracy. See, e.g., United States v. Duff, 76
F.3d 122, 127 (7th Cir. 1996). The instruction is appro-
priate whenever a jury might find a conspiracy between
a defendant and a government agent, however short the
period of time in which the agent worked for the gov-
ernment. See United States v. Eberhart, 467 F.3d 659, 666
(7th Cir. 2006). Solis and Moore, both of whom had
served as government informants for a time, were two
of the government’s key trial witnesses. The indictment
specifically named both men as Tanner’s co-conspirators,
though, potentially allowing the jury to believe that
it could convict Tanner of conspiracy if either man had
conspired with Tanner at any time. Theoretically, then,
it was possible for the jury to convict Tanner erron-
eously for conspiring with either Moore or Solis while
they were government informants. For this reason, if
Tanner had requested a Sears instruction, it would
likely have been error for the district court to refuse
that instruction. See Duff, 76 F.3d at 127 (holding that a
Sears instruction is appropriate when the terms of an
indictment allow a jury to convict solely on a finding of
a conspiracy with a government agent).
Tanner did not request a Sears instruction, however,
and we see no reason to believe that a Sears instruction
was plainly necessary here. Tanner would have
benefitted from such an instruction only if the jury was
likely to conclude both (1) that Tanner conspired only
with Moore and/or Solis; and (2) that Tanner did so
only during the time when each man was a government
28 No. 09-2370
informant. Moore and Solis were government agents
for only very short times, however. Moore acted as an
informant for just a few months before Tanner was ar-
rested. Solis was an informant for all of one day. On
the other hand, the jury heard a great deal of evidence
indicating that Tanner, over the course of several years,
conspired with his brothers and the Renegades who
acted as his drug couriers. It is highly unlikely that the
jury concluded from this evidence that Tanner conspired
only with Solis and Moore for a short time. While it is
theoretically possible that the jury found that Tanner
conspired with only Moore and/or Solis, and only while
those men acted as government informants, such a
remote possibility of harm is not enough to have
rendered a Sears instruction plainly necessary.
Regarding the absence of Rule 404(b) limiting instruc-
tions, as we explained above, neither the gang evidence
nor the evidence of witness Moore’s drug use was
evidence of prior bad acts governed by Rule 404(b). The
district court would have erred if it had instructed
the jury otherwise. As for the testimony concerning
legal gambling, the absence of a limiting instruction
was undoubtedly harmless—a failure to instruct the
jury not to draw a negative inference that it was
extremely unlikely to draw anyway simply cannot be
deemed harmful on plain-error review.
V. Sentencing Issues
At sentencing, the district court calculated Tanner’s
advisory guideline range to be life imprisonment and,
No. 09-2370 29
after considering the parties’ arguments, sentenced
Tanner to life in prison. Tanner now claims that this
sentence resulted from procedural errors in calculating
the advisory sentencing guideline range and is substan-
tively unreasonable. On review of a district court’s sen-
tencing decisions, we first review the record for any
procedural errors, such as a reliance on clearly erroneous
facts. United States v. Larsen, 615 F.3d 780, 789 (7th Cir.
2010), quoting United States v. Jackson, 547 F.3d 786, 792
(7th Cir. 2008). If we are satisfied that no procedural
error occurred, we review the sentence’s substantive
reasonableness for an abuse of discretion. E.g., United
States v. Knox, 573 F.3d 441, 446 (7th Cir. 2009).
A. Procedural Error?
In calculating Tanner’s advisory guideline sentence
range, the district court first concluded that Tanner
had conspired to distribute more than 150 kilograms of
cocaine, resulting in a base offense level of 38 under
U.S.S.G. § 2D1.1. See United States v. Zehm, 217 F.3d 506,
511 (7th Cir. 2000) (“The [now-advisory] Sentencing
Guidelines instruct that a defendant’s base offense level
reflect the quantity of drugs for which the defendant is
accountable.”). The court then added two levels under
U.S.S.G. § 2D1.1(b)(1), which calls for an enhancement if
a defendant or his co-conspirators possessed a firearm
during the course of a drug offense. United States v.
Martin, 618 F.3d 705, 737-38 (7th Cir. 2010). The court
added four levels under § 3B1.1, which allows for an
enhancement of up to four levels if a defendant acted,
30 No. 09-2370
directly or indirectly, as an organizer, leader, manager, or
supervisor of even a single other participant in the
criminal activity. See United States v. Blaylock, 413 F.3d
616, 621 (7th Cir. 2005); U.S.S.G. § 3B1.1, comment n.2.
Tanner now asserts that the evidence did not support
the firearm enhancement, the leadership enhancement,
or the district court’s calculation of the amount of drugs.
Unlike facts necessary for finding guilt at trial, facts
used for sentencing purposes need not be proven
beyond a reasonable doubt. A finding at sentencing
regarding the amount of drugs for which a defendant is
responsible need be supported only by a preponderance
of the evidence. United States. v. Johnson, 342 F.3d 731,
734 (7th Cir. 2003). The same holds true for facts sup-
porting enhancements under sections 2D1.1(b)(1) and
3B1.1. United States v. Womack, 496 F.3d 791, 797 (7th Cir.
2007); United States v. Noble, 246 F.3d 946, 953 (7th Cir.
2001). We review a sentencing court’s findings of fact
for clear error, and we will reverse only if we have a
firm and definite conviction that an error has been
made. United States v. Bautista, 532 F.3d 667, 672 (7th Cir.
2008), quoting United States v. James, 113 F.3d 721, 730
(7th Cir. 1997).
We find no clear error in any of the challenged factual
findings. Significant evidence at trial indicated that
Tanner was a high-level drug dealer who “didn’t want to
deal with small quantities” of cocaine. In addition to a
number of relatively small cocaine deals, Tanner claimed
to have purchased 100 kilograms of cocaine from Illinois
suppliers on one occasion. Tanner had even bragged
No. 09-2370 31
about receiving as much as 50 kilograms of cocaine
per week between 2000 and 2004. Even if these amounts
are discounted significantly for exaggeration, they still
easily add up to much more than the 150 kilograms
necessary to support the district court’s factual finding.
The facts are also sufficient to support both the leader-
ship and firearms enhancements. Regarding the leader-
ship enhancement, Moore testified that Tanner had as-
sumed leadership of the Renegades from his brother
Lamont some time around 2000 or 2001. He also testi-
fied that Tanner employed drivers to deliver co-
caine to Cincinnati. Solis gave additional testimony in-
dicating that Tanner was a leader in the Renegades
and that “everybody responded to [the Tanner brothers’]
demands.” As for the firearms enhancement, witnesses
(other than the law enforcement officers whose testi-
mony about the New Year’s Eve party we found inadmis-
sible) testified to seeing Tanner with a handgun and an
assault rifle during the time he was selling drugs.
Moore testified that he had sold Tanner an assault rifle,
for which Tanner paid by giving Moore a credit toward
his drug debts. Moore also sold Tanner a number of
handguns. Solis testified that Tanner had “multiple
assault rifles stashed in one of his places.” The evidence
also showed that Tanner’s co-conspirators possessed
firearms during the course of the drug conspiracy—a
fact that, on its own, is enough to support the firearm
enhancement. See Martin, 618 F.3d at 737-38.
32 No. 09-2370
B. Reasonableness of the Life Sentence
Finally, Tanner argues that his sentence of life impris-
onment is substantively unreasonable. The advisory
guideline sentencing “range” here was life imprison-
ment, effectively rendering any prison sentence presump-
tively reasonable on appeal by the defendant. See Rita
v. United States, 551 U.S. 338, 347 (2007) (concluding that
a “court of appeals may apply a presumption of reason-
ableness to a district court sentence that reflects a
proper application of the Sentencing Guidelines”); United
States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009) (below-
guideline sentence presumed reasonable on appeal by
defendant); United States v. Trice, 484 F.3d 470, 474 (7th
Cir. 2007) (within-guideline sentence presumed rea-
sonable on appeal). This presumption may be overcome
only if Tanner demonstrates the sentence’s unreason-
ableness in light of the sentencing factors found in
18 U.S.C. § 3553(a). United States v. Juarez, 454 F.3d 717,
721 (7th Cir. 2006), citing United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005).
Tanner has failed to meet this burden. He gives a
number of reasons—his lack of prior convictions, his
youth, his young son, and his prowess as a boxer—that
he believes make life imprisonment unreasonable, but
none of these reasons is sufficient to make this the “rare
case” in which a guidelines sentence is inappropriate.
See United States v. Hall, 608 F.3d 340, 347 (7th Cir.
2010). Although Tanner had no prior convictions, the
advisory guidelines took that lack of criminal history
into account and nevertheless deemed a life sentence
appropriate, given the high total offense level resulting
No. 09-2370 33
from the scope of Tanner’s crime and his role in it. The
guidelines are presumed reasonable on appeal, Rita,
551 U.S. at 347, and it would be odd if that presumption
might be undermined merely by reference to one of the
two factors (offense level and, here, the defendant’s
criminal history) that the guidelines take into account in
every case.
Tanner’s emphasis on his “youth” is simply mislead-
ing. He is not a child or even a teenager, but an adult
able to understand the consequences of his actions. Al-
though the indictment charged that the conspiracy
began when Tanner was a teenager, Tanner’s criminal
conduct occurred largely, if not entirely, during his adult-
hood. As for Tanner’s prowess as a boxer, the district
court had no obligation to impose a lower sentence just
so Tanner might pursue the boxing career he had
already eschewed for a more lucrative life of crime. (We
assume a much lower sentence would have been needed
to allow Tanner to box outside prison while he is
still young and healthy enough.) We sympathize with
Tanner’s young son, who undoubtedly deserved a
better chance to have a father play a meaningful role in
his life. But the district court reasonably concluded
that Tanner’s decision to pursue a life of crime showed
his apparent disregard for his son’s welfare, as well as
for the welfare of those who were harmed by the
cocaine Tanner helped distribute, and justified adherence
to the guideline recommendation of life imprisonment.
A FFIRMED.
12-17-10