In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2584
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MATTHEW ELDER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 13‐cr‐00017 — Richard L. Young, Chief Judge.
____________________
ARGUED SEPTEMBER 9, 2016 — DECIDED OCTOBER 25, 2016
____________________
Before POSNER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Matthew Elder was convicted for
conspiracy to distribute methamphetamine and sentenced to
a mandatory term of life imprisonment. He now appeals his
conviction and sentence. For the reasons that follow, we af‐
firm Elder’s conviction but vacate his sentence and remand
for resentencing.
2 No. 15‐2584
I. BACKGROUND
A. Trial and Conviction
In 2013 Matthew Elder (“Elder”) and seven codefendants,
including his father Bill Elder (“Bill”), were charged in a su‐
perseding indictment with conspiring to traffic large quanti‐
ties of methamphetamine from Arizona to southwest Indiana.
Elder and Bill pleaded not guilty and went to trial, while the
remaining codefendants all pleaded guilty.
At trial, Elder’s coconspirators testified in detail about his
involvement in the conspiracy. Perhaps the most important
testimony came from coconspirator Michael Curinga, who
first met Elder in Arizona in the summer of 2012. Curinga be‐
gan supplying Elder with methamphetamine for personal
use, though it wasn’t long before Elder expressed an interest
in buying “large quantities” of methamphetamine to
transport to Indiana.1 To that end, Elder introduced Curinga
to Bill around October 2012, and the three met at a restaurant
a few days later to exchange drugs. The deal went off without
a hitch. Elder gave Curinga a cooler with money inside.
Curinga took the cooler to his supplier, replaced the money
with methamphetamine, then returned to the restaurant and
gave the cooler back to Bill and Elder. Curinga charged Bill
and Elder $33,000 for the drugs.
Elder and Curinga continued to deal on very similar terms
over the next several months. Each time, Elder gave Curinga
a cooler packed with money; Curinga brought the cooler to
his supplier, replaced the money with several pounds of
1 Curinga initially testified that Elder asked him for 3.5 ounces of
methamphetamine, but he later clarified that the two exchanged numer‐
ous pounds of methamphetamine during the conspiracy.
No. 15‐2584 3
methamphetamine, and then returned the cooler to Elder. On
one occasion in December 2012, Curinga noticed that Elder’s
payment for the drugs came up short. Elder insisted that the
money was all there, and Curinga eventually decided to “eat
the difference” because the deal was still profitable. But
Curinga was not the only one concerned about Elder’s mal‐
feasance; a few months later, Bill called Curinga and com‐
plained that Elder was “getting his hands in the money” and
was bad for business. As a result, Bill and Curinga agreed to
cut Elder out of the next delivery, which took place in Febru‐
ary 2013.
The jury also heard from a coconspirator named Michael
Clark, who testified that he purchased methamphetamine
from Bill and Elder at a Phoenix hotel in December 2012. Clark
arrived at the hotel with a bag of money, Bill and Elder
counted the money, and Elder left with the money and re‐
turned a few hours later with methamphetamine. (Clark ex‐
plained that he knew the substance brought by Elder was
methamphetamine because he had been using that drug for
the past twenty years and so was very familiar with it, and
because the substance produced the same effect as metham‐
phetamine when he tried it.) Bill and Elder then distributed
the methamphetamine among the three of them, and Clark
transported his share of the drugs back to Indiana as usual.
Further evidence against Elder came from coconspirators
Lauri Cupp and Terry Ward, who were dating and lived to‐
gether at Ward’s house in Indiana during the conspiracy.
Ward used to travel to Phoenix with Bill to buy methamphet‐
amine and then bring it back to Ward’s house for further dis‐
tribution among the conspirators. A portion of the drugs
would go to Cupp, who used some for herself and sold the
4 No. 15‐2584
rest to her customers. On one particular drug run in Decem‐
ber 2012, Bill and Ward took longer than usual. Cupp testified
that when they returned, she heard them angrily complaining
that their trip was delayed because Elder gave them only part
of the methamphetamine that he owed them. Defense counsel
objected to Cupp’s testimony as hearsay, but the court admit‐
ted the testimony under the coconspirator exclusion to the
hearsay rule. See Fed. R. Evid. 801(d)(2)(E).
Following trial, the jury found Elder guilty of conspiring
to distribute 50 grams or more of methamphetamine and 500
grams or more of a mixture or substance containing a detect‐
able amount of methamphetamine, in violation of 21 U.S.C.
§§ 841 and 846.
B. Sentencing
Before sentencing, the government filed an information
under 21 U.S.C. § 851 indicating that Elder had two prior Ar‐
izona drug convictions: a 1999 conviction for possession of
equipment or chemicals for the manufacture of dangerous
drugs, and a 1997 conviction for possession of drug parapher‐
nalia. The government argued that Elder’s two prior convic‐
tions were “felony drug offenses” under 21 U.S.C.
§ 841(b)(1)(A), which requires a defendant to be sentenced to
life if he is convicted of a serious drug offense after having
previously been convicted of two or more drug‐related felo‐
nies. The district court reluctantly agreed, explaining that it
believed a life sentence was overly harsh and unjust, but that
it had no discretion to issue a lesser sentence under the stat‐
ute. Based on its finding that Elder’s prior convictions quali‐
fied as felony drug offenses, the court sentenced Elder to a
mandatory term of life imprisonment in July 2015.
No. 15‐2584 5
II. DISCUSSION
Elder raises three arguments on appeal. First, he argues
that the district court erred by allowing Cupp to testify about
the conversation she overheard concerning his involvement
in the conspiracy. Second, he argues that the jury’s verdict
must be overturned because it is not supported by sufficient
evidence. Third, he argues that the district court erroneously
imposed a mandatory term of life imprisonment. We address
each argument in turn.
A. Statements of Coconspirators
Elder challenges the district court’s decision to admit
Cupp’s testimony about the conversation she overheard be‐
tween Bill and Ward when they returned from Arizona in De‐
cember 2012. In particular, he contends that the coconspirator
exclusion does not apply because the conversation was not
“in furtherance of the conspiracy.” See Fed. R. Evid.
801(d)(2)(E). We review the district court’s ruling for an abuse
of discretion and its underlying factual findings for clear er‐
ror. United States v. Johnson, 200 F.3d 529, 532 (7th Cir. 2000).
Federal Rule of Evidence 801 provides that a statement of‐
fered against a party is not hearsay if the statement was
“made by the party’s coconspirator during and in furtherance
of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). Statements can
further the conspiracy in a number of ways. “Some examples
include comments designed to assist in recruiting potential
members, to inform other members about the progress of the
conspiracy, to control damage to or detection of the conspir‐
acy, to hide the criminal objectives of the conspiracy, or to in‐
still confidence and prevent the desertion of other members.”
6 No. 15‐2584
Johnson, 200 F.3d at 533. A coconspirator’s statement may sat‐
isfy the “in furtherance” requirement even if the statement
was not “exclusively, or even primarily, made to further the
conspiracy.” United States v. Cruz‐Rea, 626 F.3d 929, 937 (7th
Cir. 2010) (internal marks omitted).
We see no error in the district court’s conclusion that the
challenged statements in this case were made in furtherance
of the conspiracy. Cupp testified that she heard Bill and Ward
saying that Elder did not give them the agreed‐upon amount
of drugs to be distributed in Indiana as planned. Bill and
Ward’s statements directly related to the conspiracy’s pro‐
gress and were clearly part of the ordinary “information
flow” among conspirators designed to “help each perform his
role.” See United States v. Alviar, 573 F.3d 526, 545 (7th Cir.
2009) (internal marks omitted). The statements also worked to
undermine confidence in Elder as a reliable drug source, and
they alerted Cupp to a deficiency in her supply chain (recall
that Ward got the drugs from Elder, while Cupp got her drugs
from Ward) that resulted in an appreciable delay in business
as well as an unanticipated reduction in supply. Far from
mere “narrative declarations” of past events, Johnson, 200 F.3d
at 533, the statements also betokened the conspiracy’s im‐
pending reorganization: shortly after complaining about El‐
der’s misconduct, Bill called Curinga to exclude Elder from
future transactions because he was bad for business.
In sum, the challenged statements were made between
two conspirators, in the presence of a third conspirator, about
a problem that arose during a recent conspiratorial transac‐
tion with a fourth conspirator, and that appears to have
prompted a decisive remedial change in the conspiracy’s
structure. Under these circumstances, there was plainly a
No. 15‐2584 7
“‘reasonable basis’” to conclude that the statements furthered
the conspiracy. See Cruz‐Rea, 626 F.3d at 937. Accordingly, the
district court did not abuse its discretion in admitting Cupp’s
testimony under Rule 801(d)(2)(E).
B. Sufficiency of the Evidence
Elder next contends that the government presented insuf‐
ficient evidence to convict him of conspiracy. In considering
the sufficiency of the evidence, “[w]e view the evidence in the
light most favorable to the government and will overturn a
conviction only if the record contains no evidence from which
a reasonable juror could have found the defendant guilty.”
United States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009); see
also United States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000)
(“[A]s long as any rational jury could have returned a guilty
verdict, the verdict must stand.”). When challenging a convic‐
tion for insufficiency of the evidence, the defendant bears a
“heavy” burden that is “‘nearly insurmountable.’” United
States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008).
To prove a conspiracy charge, “the government must
show both that a conspiracy existed and that the defendant
knowingly agreed to join it.” United States v. Pagan, 196 F.3d
884, 889 (7th Cir. 1999). The essence of a conspiracy is “an
agreement to commit an unlawful act.” United States v. Baker,
40 F.3d 154, 160 (7th Cir. 1994) (internal marks omitted).
Here, the government introduced ample evidence estab‐
lishing that Elder knowingly agreed with others to unlawfully
distribute methamphetamine as charged in the superseding
indictment. Curinga testified that he and Elder negotiated
several high‐volume deals to further the drug ring’s opera‐
tions in Indiana, and that Elder successfully introduced him
8 No. 15‐2584
to Bill to expand the drug ring and increase supply. Addi‐
tional testimony showed that, around December 2012, Elder
supplied methamphetamine to coconspirators Clark, Bill, and
Ward, who then delivered the drugs to Indiana according to
plan. Viewed in the light most favorable to the government,
the uncontroverted testimony of Elder’s coconspirators was
more than sufficient to enable a rational jury to find Elder
guilty of the charged conspiracy beyond a reasonable doubt.
Elder’s arguments to the contrary are easily disposed of.
He first argues that the evidence was insufficient because it
“came from almost entirely biased witnesses.” As we have
said time and again, however, “[i]t is for the jury—not the
court of appeals—to judge the credibility of witnesses, and at‐
tacks on witness credibility are insufficient to sustain a chal‐
lenge to the sufficiency of the evidence.” United States v. Grif‐
fin, 84 F.3d 912, 927 (7th Cir. 1996); see also United States v.
Curry, 79 F.3d 1489, 1497 (7th Cir. 1996) (noting that argu‐
ments challenging witness credibility are “wasted on an ap‐
pellate court” because “questions of credibility are solely for
the trier of fact”). Indeed, “a conviction for conspiracy may be
supported by testimony that is ‘totally uncorroborated and
comes from an admitted liar, convicted felon, large scale
drug‐dealing, paid government informant.’” United States v.
Pulido, 69 F.3d 192, 206 (7th Cir. 1995). The testimony of Elder’s
coconspirators supports the verdict, and we will not second‐
guess the jury’s assessment of their credibility. See United
States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008).
Elder further argues that the evidence at trial was deficient
because, when questioning Curinga on direct examination,
the prosecution made a reference to “3.5 pounds” of metham‐
phetamine in response to Curinga’s testimony that Elder
No. 15‐2584 9
asked him for “3.5 ounces.” Elder argues that this discrepancy
cast “enormous doubt” over Curinga’s subsequent testimony
that he regularly supplied Elder with multiple‐pound ship‐
ments of methamphetamine. Once again, this argument fails
at the outset because it was distinctly within the province of
the jury to weigh the consistency of Curinga’s testimony and
assess his overall credibility. See United States v. Muthana, 60
F.3d 1217, 1223 (7th Cir. 1995) (“Assessing a witness’[s] credi‐
bility ‘is a matter inherently within the province of the jury.’”).
Elder also exaggerates the supposed inconsistency in
Curinga’s testimony. Notwithstanding his initial reference to
“3.5 ounces,” Curinga consistently testified, without prompt‐
ing from the government, that he and Elder negotiated the
sale of “large quantities” of methamphetamine; that, on sev‐
eral occasions, he supplied Elder with shipments of metham‐
phetamine weighing more than three pounds each; that the
drugs were carefully packaged in “one pound bricks” before
being placed in the cooler; and that a single deal was worth
tens of thousands of dollars.
Finally, Elder challenges Clark’s testimony about the De‐
cember 2012 drug exchange at the Phoenix hotel, arguing that
Clark’s identification of the exchanged substance as metham‐
phetamine was based on “pure speculation.” This argument
borders on the frivolous. Clark testified that he had been us‐
ing methamphetamine for the previous twenty years; that he
routinely traveled to Arizona to buy methamphetamine from
his coconspirators; and that, when he did so in December
2012, the substance he obtained from Elder looked like meth‐
amphetamine and produced the same effect as methamphet‐
amine when he tried it. Clark’s testimony, viewed in the light
most favorable to the prosecution, supports a reasonable in‐
10 No. 15‐2584
ference that the substance supplied by Elder was metham‐
phetamine. See United States v. Bradley, 165 F.3d 594, 596 (7th
Cir. 1999) (noting that it is “common sense” that those who
use, buy, and sell illegal drugs are the “real experts” on what
those drugs are).
All in all, the government presented substantial evidence
showing that Elder procured, possessed, trafficked, and dis‐
tributed large amounts of methamphetamine, and that he did
so in furtherance of the conspiracy charged in the superseding
indictment. Elder’s conviction is supported by sufficient evi‐
dence, and the jury’s verdict must stand.
C. Mandatory Life Sentence
As discussed earlier, the district court in this case reluc‐
tantly imposed a mandatory life sentence after concluding
that Elder’s prior two Arizona convictions (one in 1997 and
one in 1999) qualified as “felony drug offenses” under 21
U.S.C. § 841. On appeal, Elder argues that his 1997 conviction
was not a conviction for a felony drug offense because it was
not punishable by more than one year imprisonment. Elder
did not raise this argument at sentencing, so our review is for
plain error only. See United States v. Gray, 332 F.3d 491, 492 (7th
Cir. 2003); Fed. R. Crim. P. 52(b).
Under § 841’s “three strikes” provision, a person who con‐
spires to distribute 50 grams or more of methamphetamine
must be sentenced to life in prison if he has previously been
convicted of two or more felony drug offenses. 21 U.S.C.
§ 841(b)(1)(A). For purposes of § 841, a prior offense is a “fel‐
ony drug offense” only if, among other things, it is “punisha‐
ble by imprisonment for more than one year.” 21 U.S.C. § 802
(44). Although Elder’s 1997 offense of conviction—possession
No. 15‐2584 11
of drug paraphernalia in violation of Ariz. Rev. Stat. Ann.
§ 13‐3415(A)—is presently punishable by imprisonment for
more than one year, the offense carried a one‐year maximum
sentence at the time of Elder’s conviction in 1997. Compare
Ariz. Rev. Stat. Ann. § 13‐702(D) (effective Jan. 1, 2009), with
Ariz. Rev. Stat. Ann. § 13‐701(C) (amended Jan. 1, 2009). As a
consequence, Elder’s 1997 conviction was not a conviction for
a felony drug offense within the meaning of § 841, and the
district court’s finding to the contrary was plainly erroneous.
The government agrees and correctly concedes that the man‐
datory life sentence was improper. We therefore vacate Elder’s
sentence and remand for a complete resentencing in conform‐
ity with this opinion.2
III. CONCLUSION
For the foregoing reasons, we affirm Elder’s conviction but
vacate his sentence and remand for resentencing consistent
with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
2 Elder also challenges the district court’s finding that his 1999 Ari‐
zona conviction qualified as a felony drug offense. Because we conclude
that Elder’s sentence must be vacated based solely on the district court’s
erroneous finding regarding the 1997 conviction, we do not reach this ad‐
ditional argument. The parties are free to address the significance of the
1999 conviction on remand.