NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2011*
Decided April 19, 2011
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 09‐1480 & 09‐1873
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 08‐CR‐30003‐WDS
TYRONE W. JACKSON and William D. Stiehl,
MADLON S. LADD, Judge.
Defendants‐Appellants.
O R D E R
Tyrone Jackson and Madlon Ladd sold crack in Mount Vernon, Illinois. After a jury
trial they were convicted of conspiracy and substantive counts of possession and
distribution. See 21 U.S.C. §§ 846, 841(a)(1). Jackson, who is pro se, appeals his convictions
and sentence. Ladd’s lawyer, on the other hand, moves to withdraw on the ground that her
appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). We affirm the judgment
against Jackson and dismiss Ladd’s appeal.
*
After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus the appeals are submitted on the briefs and records. See FED. R. APP. P.
34(a)(2)(C).
Nos. 09‐1480 & 09‐1873 Page 2
Local police, led by Captain Ron Almaroad of the Mount Vernon Police Department,
targeted Jackson and Ladd for more than two years. In November 2005, Almaroad sent
informant Reginald Jones to buy crack from the duo. Jones testified that he expected to find
the defendants at an apartment building where he bought from them previously. This time
they were absent, so Jones summoned Jackson by telephone. While Jones waited, another
dealer named Josh Liddell showed up and offered to sell him crack. Jones agreed. (At trial
Almaroad testified, over a relevance objection, that Jones’s initiative and later testimony led
to Liddell’s conviction.) When Jackson and Ladd arrived, they were angry with Liddell for
siphoning their business. They also voiced displeasure with Jones for not having settled his
tab for earlier buys on credit. When Jones handed $50 to Ladd, she gave him less than that
amount of crack to make up for some of his debt. Jones recorded the entire encounter both on
videotape and with still pictures, both of which the jury eventually saw.
Jones testified that Ladd sometimes sold crack out of a room at the Royal Inn. He
passed that information to Captain Almaroad, who obtained a search warrant for Ladd’s
motel room in January 2006. Almaroad found Ladd with a small amount of marijuana in her
purse. With her in the room she had a box of plastic baggies and 9.9 grams of crack. That
amount of crack, Almaroad testified, is consistent with distribution rather than personal use.
The captain also found photographs of Jackson taken at the motel, including one depicting
him kneeling outside Ladd’s room amid scattered cash. Two months later, in March 2006, the
police again raided the Royal Inn, where they found Jackson and Ladd in a room with half a
gram of crack and $870. The defendants were charged in state court following these raids
and then released, but that information was not shared with the jury.
In late April 2006, Ladd rented a house on Conger Avenue. Jackson did not sign the
lease, but at trial the landlord testified that Jackson sometimes paid the rent and usually was
present whenever the landlord stopped at the house. In February 2007 a police officer
rummaging through the pair’s trash discovered marijuana and a significant number of
plastic baggies, one containing crack residue. With this information Captain Almaroad
secured a warrant to search the house for evidence of possession of a controlled substance.
When the warrant was executed, the defendants were present with 9.4 grams of crack, 8.2
grams of marijuana, $171, and a stock of plastic baggies. They had three surveillance cameras
monitoring approaches to the house. Again both were charged and then released.
Throughout this time, Jackson also was selling crack wholesale to fellow dealers.
Three of them testified at trial. Dekal James said he bought roughly 3.5 grams from Jackson
at least 8 times during 2006. Damian Thrailkill testified that, during that same year, he
bought 3.5 grams at least 3 times. And Fred Goosby recalled buying 170 grams in 5 large
purchases at the house on Conger Avenue between March 2006, when he began serving a
Nos. 09‐1480 & 09‐1873 Page 3
term of supervised release, and April 2007, when he was sent back to prison. The first time,
Goosby remembered, he gave $900 to Jackson, who retreated into the house and sent Ladd
out to hand over the ounce of crack. On another occasion, Goosby continued, he dropped by
while Jackson and Ladd were cooking crack. Jackson was manning the stove, Goosby
reported, while Ladd was packaging the product for sale.
Captain Almaroad orchestrated one more controlled buy from Jackson in October
2007. This time he sent informant Jeff McCurdy, who made a video and audio recording that
was played for the jury. McCurdy met Jackson at a house on South 24th Street and gave him
$50. Jackson then got in his car and, before driving away, dropped out of the window a
baggie containing .4 grams of crack. This was not his first buy from Jackson, McCurdy told
the jury, though usually he made his purchases at the house on Conger Avenue. Typically,
he said, Jackson would tell him to put his money on a table and then Ladd would hand him
the crack. But sometimes, he added, the defendants made him wait outside and slid the
drugs, wrapped in toilet paper, underneath the front door.
The government charged that, from March 2005 until October 2007, Jackson and Ladd
conspired to possess and distribute crack. The government also charged the defendants with
distribution for sale to informant Jones in November 2005, as well as possession with intent
to distribute arising from the search of the house on Conger Avenue in February 2007. In
addition Jackson was charged with distributing crack to informant McCurdy in October
2007, and Ladd was charged with possession with the intent to distribute arising from the
January 2006 raid on the Royal Inn. Both defendants moved unsuccessfully to suppress some
items seized during the February 2007 search, arguing that the police had searched for
evidence of distribution and thus exceeded the scope of their narrow warrant to search for
evidence of simple possession. Then, about a month before trial, Jackson invoked his right to
self‐representation. The district court appointed standby counsel. In addition, invoking its
“standard practice” for defendants who are detained, the court directed that Jackson remain
behind a curtained table in leg restraints throughout the trial. To prevent any prejudice to
Jackson, the prosecutor and Ladd’s lawyer agreed to remain at their tables too. After a three‐
day trial, the jury found the defendants guilty on all counts and also found that their
conspiracy had involved at least 5 grams of crack.
At sentencing the district court found that the conspiracy actually involved 244 grams
of crack. The court reached this figure by adding up the amounts from the searches,
controlled buys, and wholesale purchases made by the dealers who testified at trial. And
since Jackson already had a state conviction for a felony drug offense, see 720 ILCS
570/402(c), the quantity of crack mandated a minimum prison sentence of 20 years, see 21
U.S.C. § 841(b)(1)(A)(iii) (2006). After permitting Jackson to allocute for over an hour, the
Nos. 09‐1480 & 09‐1873 Page 4
court sentenced him to the 20‐year minimum term. Ladd’s offense level of 32, see U.S.S.G.
§ 2D1.1(c)(4) (2008), and Category I criminal history yielded an imprisonment range of 121 to
151 months. Ladd cited her tragic past and insisted that a manipulative and controlling
Jackson had seduced her into a life of crime, but the court reasoned that she was nevertheless
guilty of a very serious offense and accordingly sentenced her to 144 months.
On appeal Jackson first argues that shackling his legs throughout trial violated his
right to due process. He relies on Deck v. Missouri, 544 U.S. 622, 629 (2005), which forbids
visible restraints unless the trial judge finds them “justified by a state interest specific to a
particular trial.” The district court invoked a blanket policy instead of identifying a need
specific to Jackson, and Jackson argues that the restraints hampered his presentation to the
jury. The government, after seeing this claim in Jackson’s brief, asked the district court to
approve, and include in the record, a statement from the prosecutor describing the measures
taken to prevent jurors from seeing Jackson’s restraints. See FED. R. APP. P. 10(e)(2)(B). The
court instead drafted its own statement recounting that jurors had not been present when
Jackson was moved in and out of the courtroom, that skirting had been draped around the
tables used by both parties, and that Jackson’s shackles had not been exposed to the jury
since he questioned witnesses from his table.1
Because Jackson’s leg restraints were not visible to the jury, we conclude on the
record before us that his right to due process was not violated. In Deck the Supreme Court
addressed only the question whether visible physical restraints offend the Constitution. 544
1
Jackson disputes the accuracy of the district court’s recollection and has filed two
motions asking us to strike from the government’s brief all references to the court’s
supplemental finding. We decline that request. Rule 10(e) promotes accuracy in appellate
records, United States v. Elizalde‐Adame, 262 F.3d 637, 641 (7th Cir. 2001), and we allow
supplemental material that offers useful context, Coleman v. Hardy, 628 F.3d 314, 315 n.1 (7th
Cir. 2010). The court’s statement in this case is especially helpful because it illuminates the
crucial factual issue whether Jackson was encumbered by visible restraints. And though
Jackson challenges the accuracy of the court’s statement, Rule 10(e)(1) specifically commits
to the district court the task of settling disagreements between the parties about what
transpired. We will not reject the district court’s reconstruction of the record unless it is
intentionally falsified or plainly unreasonable. United States v. Franklin, 250 F.3d 653, 663
(8th Cir. 2001); United States v. Zichettello, 208 F.3d 72, 93 (2d Cir. 2000); United States v.
Keskey, 863 F.2d 474, 478 (7th Cir. 1988). Jackson has not come close to demonstrating either
of these infirmities. Significantly, while he mounts a general attack on the district court’s
supplemental finding, he never has asserted that the parties’ tables were not skirted or that,
in fact, he moved around the courtroom to question witnesses.
Nos. 09‐1480 & 09‐1873 Page 5
U.S. at 626‐29. Jackson’s physical restraints, on the other hand, remained at all times hidden
from the jury’s view behind a skirted table. See United States v. Cooper, 591 F.3d 582, 588‐89
(7th Cir.) (concluding that restraining defendant with shackles concealed from view by
skirted table did not constitute “clear or obvious violation” of due process), cert. denied, 130
S. Ct. 3530 (2010); United States v. Baker, 432 F.3d 1189, 1245‐46 (11th Cir. 2005) (concluding
that district court’s failure to justify shackling defendants was not abuse of discretion where,
among other things, shackles were not visible to jurors). We have no need here to decide
whether the court’s adoption of a “general policy” of shackling is problematic, as we can see
no prejudice to Jackson on these facts.
Nor does the record suggest that his leg restraints impeded Jackson’s right under
Faretta v. California, 422 U.S. 806 (1975), to represent himself. Cf. Oses v. Massachusetts, 961
F.2d 985, 986 (1st Cir. 1992) (holding that district court violated defendant’s right to self‐
representation by refusing to permit shackled defendant to participate in bench conferences);
Spain v. Rushen, 883 F.2d 712, 720 (9th Cir. 1989) (suggesting that shackles “may confuse and
embarrass the defendant, thereby impairing his mental faculties”). Like Jackson, the
government’s lawyer sat at a table draped by a skirt, and to ensure that jurors did not draw
an adverse inference from seeing only Jackson remain behind his table, the district court
directed the government’s lawyer to do the same. These accommodations kept the leg
restraints from undercutting the jurors’ perception that Jackson was his own lawyer. See
Frantz v. Hazey, 533 F.3d 724, 728 (9th Cir. 2008) (en banc); Overton v. Mathes, 425 F.3d 518,
521 (8th Cir. 2005). And Jackson’s advocacy, for someone without legal training, was sharp
and focused; the record belies his suggestion on appeal that the restraints thwarted him from
pressing his case to the utmost of his ability. See Cooper, 591 F.3d at 587 (explaining that
district court need not discuss shackling with defendant before permitting self‐
representation).
Jackson also argues that he is entitled to a new trial because, he asserts, the
government knowingly presented false testimony. Jackson did not raise this contention in
the district court, so our review is for plain error. See United States v. Williams, 547 F.3d 1187,
1202 n.13 (9th Cir. 2008); United States v. Peak, 856 F.2d 825, 830‐31 (7th Cir. 1988). He points
to Goosby’s testimony that he bought crack from the defendants at the house on Conger
Avenue beginning in March 2006. That is not possible, Jackson insists, because, as the
landlord testified, Ladd did not rent that house until the end of April. But inconsistencies in
a witness’s testimony do not establish that the government suborned perjury. United States v.
Ogle, 425 F.3d 471, 477 (7th Cir. 2005); United States v. Griffin, 194 F.3d 808, 818‐19 (7th Cir.
1999). Goosby was testifying in July 2008 about events more than two years old, and what
Jackson calls perjury just as easily could be chalked up to faulty memory. Jackson vigorously
cross‐examined Goosby and drew the jury’s attention to the conflict between his testimony
Nos. 09‐1480 & 09‐1873 Page 6
and that of the landlord. We have not been given a reason to suspect that Goosby was lying
or that the prosecutor knew he was lying, see Martin v. Evans, 384 F.3d 848, 855 (7th Cir.
2004); United States v. Magana, 118 F.3d 1173, 1191 (7th Cir. 1997), and thus Goosby’s
credibility was for the jury alone to decide.
Jackson next focuses on two evidentiary rulings. He insists that the district court
should have allowed him to question Captain Almaroad about a scheme allegedly hatched
with two state judges to “persecute” Jackson in retaliation for exposing one of the judges’
crack addiction. This line of questioning is precisely the sort of inflammatory and, at best,
marginally relevant interrogation that a trial judge may forbid without violating a
defendant’s right of confrontation. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);
United States v. Saunders, 166 F.3d 907, 918‐20 (7th Cir. 1999). Jackson also contends that the
judge should have excluded the evidence that Jones, the first informant, bought crack from
Liddell just before the defendants arrived to make their own sale. But we do not understand
how Jackson could have been harmed by the jury’s viewing Jones’s fortuitous deal with
Liddell, and so we suspect that Jackson’s real complaint is with the admission of Almaroad’s
statement that Jones later testified against Liddell and helped get him convicted. Heralding
Jones’s service to the government lent official credibility to his testimony and thus was
impermissible bolstering, see United States v. Vázquez‐Botet, 532 F.3d 37, 53 (1st Cir. 2008);
United States v. Thomas, 510 F.3d 714, 724 (7th Cir. 2007), irrelevant to the jury’s evaluation of
the charges against the defendants. The error was harmless, however, because the improper
snippet about Jones’s role in Liddell’s conviction pales in comparison to the videos of the
defendants’ drug sales and the testimony of three of their wholesale customers. See United
States v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008); United States v. Davis, 838 F.2d 909, 919‐20
(7th Cir. 1988).
Moving on to sentencing, Jackson argues that his statutory minimum term of
imprisonment was doubled on the basis of a conviction that, he insists, does not constitute a
felony drug offense. In 1996, Jackson concedes, he was convicted of possessing less than 15
grams of crack, see 720 ILCS 570/402(c), which under Illinois law is a Class 4 felony
punishable by up to 3 years’ imprisonment, see 730 ILCS 5/5‐4.5‐45(a). For purposes of 21
U.S.C. § 841(b)(1), any “offense that is punishable by imprisonment for more than one year
under any law of the United States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances” qualifies as a “felony drug offense.” 21 U.S.C. § 802(44). Jackson’s state
conviction falls squarely within this definition. See Burgess v. United States, 553 U.S. 124, 129‐
33 (2008); United States v. Arango‐Montoya, 61 F.3d 1331, 1333 (7th Cir. 1995).
Nos. 09‐1480 & 09‐1873 Page 7
Jackson also accuses the government of inflating his sentence with “ghost
dope”—that is, a quantity of crack that was not proved to the jury beyond a reasonable
doubt. His 20‐year sentence is the statutory minimum, however, and there is no
constitutional requirement that a jury, rather than the sentencing judge, determine a drug
quantity that affects only the minimum sentence. Harris v. United States, 536 U.S. 545, 557
(2002); United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007).
Finally, Jackson urges us to resolve the question we left open in United States v.
Washington, 558 F.3d 716, 720 (7th Cir. 2009), and decide whether 21 U.S.C. § 841(b)(1)
requires a sentencing court to “ ‘apply both the statutory maximum and the statutory
minimum that corresponds to the drug quantity found by the jury.’ ” For Jackson the
statutory penalties were increased under all circumstances because of his prior conviction.
The district court properly applied § 841(b)(1)(B)(iii) in determining that the statutory
maximum was life imprisonment given the jury’s finding that the defendants had conspired
to distribute at least 5 grams of crack. (That subsection since has been amended to apply only
to crimes involving at least 28 grams of crack.) But the court, adopting what we termed in
Washington a “mix‐and‐match approach,” 558 F.3d at 720, determined Jackson’s statutory
minimum not by looking back to § 841(b)(1)(B), which provides a corresponding minimum
sentence of 10 years’ imprisonment, but instead by looking to § 841(b)(1)(A)(iii). That
subsection, at the time, mandated a 20‐year minimum for a recidivist convicted of an offense
involving at least 50 grams of crack. The court turned to § 841(b)(1)(A) because of its finding,
by a preponderance of the evidence, that the conspiracy involved 244 grams of crack. The
fatal flaw in Jackson’s argument, however, is that he did not voice to the district court his
contention that the statute forbids this “mix‐and‐match approach.” Thus we review the issue
for plain error, and since the question remains unsettled, the district court’s “mix‐and‐match
approach,” whether or not correct under § 841(b)(1), cannot be plain error. See United States v.
Gibson, 530 F.3d 606, 612 (7th Cir. 2008); United States v. Liddell, 543 F.3d 877, 885 (7th Cir.
2008).
We turn now to Ladd. Her appointed lawyer first ponders whether to challenge the
denial of Ladd’s motion to suppress the cash, plastic baggies, and security cameras
recovered from the house on Conger Avenue. These items were seized pursuant to a warrant
that authorized a search for evidence of possession of a controlled substance, and in the
district court Ladd conceded that the affidavit supporting the warrant established probable
cause to believe that a possession offense was committed at the residence. She also conceded
that the drugs were admissible but insisted that the other items were evidence not of drug
possession but rather of distribution.
Nos. 09‐1480 & 09‐1873 Page 8
It is quite a stretch to imagine how suppressing this evidence could have changed the
outcome of Ladd’s trial. But regardless, we agree with counsel that it would be frivolous to
resurrect the matter on appeal because we would find that the items were admissible under
the plain‐view doctrine. The disputed evidence was seized by officers authorized to be inside
the house, and while the items may not be evidence of the crime of possession, the officers
were not limited to that offense or to the facts disclosed in the affidavit when evaluating
whether to seize evidence or contraband discovered in plain view. See United States v. Clay,
579 F.3d 919, 931‐32 (8th Cir. 2009), cert. denied, 130 S. Ct. 3353 (2010); United States v.
Armstrong, 554 F.3d 1159, 1163 (8th Cir. 2009); United States v. Cooper, 19 F.3d 1154, 1163 (7th
Cir. 1994). Given what Captain Almaroad already knew about Jackson and Ladd before he
executed the search warrant, and given what he uncovered lawfully while searching for
evidence of drug possession, we would conclude that the incriminating character of the
disputed items was immediately apparent.
Even less need be said about the other possible arguments identified by counsel. In
light of the overwhelming evidence that the defendants worked as a team to peddle crack, it
would be frivolous indeed to argue that no rational jury could have found Ladd guilty. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Hanna, 630 F.3d 505, 508 (7th Cir.
2010). As for Ladd’s overall term of imprisonment, we agree with counsel that, because the
district court carefully listened to her arguments in mitigation and thoughtfully applied the
factors in 18 U.S.C. § 3553(a) to her case, it would be frivolous to try to overcome the
presumption of reasonableness that attaches on appeal to a sentence within the guidelines
range. See Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Vallar, No. 07‐3641,
2011 WL 488877, at *3 (7th Cir. Feb. 14, 2011).
We AFFIRM the judgment in appeal number 09‐1480. We GRANT counsel’s motion to
withdraw and DISMISS appeal number 09‐1873.