NONPRECEDENTIAL DISPOSITION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 November 21, 2018*
Decided November 30, 2018
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17‐1543
UNITED STATES OF AMERICA Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 12 CR 697‐1
ANTWAN JONES, Virginia M. Kendall,
Defendant‐Appellant. Judge.
O R D E R
A grand jury returned a multicount superseding indictment charging Antwan
Jones and his two codefendants with various drug‐related offenses. Among other
crimes, Jones was charged with conspiracy to possess with intent to distribute over five
kilograms of cocaine, 21 U.S.C. § 846; attempt to possess with intent to distribute over
five kilograms of cocaine, id. § 841(a)(1); and possession of a firearm in furtherance of a
* We agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17‐1543 Page 2
drug‐trafficking crime, 18 U.S.C. § 924(c)(1)(A). A jury convicted Jones on all nine
counts against him. Jones then asked the district court to allow him to represent himself.
The judge accepted the waiver of counsel and allowed Jones to proceed pro se, as he
continues to do on appeal. Jones principally challenges the validity of his indictment for
conspiracy and the sufficiency of the evidence presented at trial.
At trial the government presented evidence that a drug conspiracy existed
between Antwan Jones, James Jones, and Calvin Nelson. Nelson testified that the three
bought, stored, and sold drugs out of a multiunit apartment building that Jones leased
and in which James Jones and Nelson lived. Nelson elaborated that he stored cocaine,
crack, and heroin in his apartment for Jones, and he observed Jones receive, in a variety
of transactions, a total of 22.5 kilograms of cocaine at Nelson’s apartment. As
corroborating evidence the government also introduced scores of Jones’s phone
conversations related to drug dealing and the testimony of law‐enforcement agents
about their surveillance of Jones and his associates.
The government also presented evidence of Jones’s attempt to buy 500 grams or
more of cocaine on one occasion. Recorded phone calls show that Jones arranged with
Edgar Delgado to purchase a large quantity from Delgado’s friend. In a call on April 11,
2012, Jones verified the price of a kilogram and told Delgado that he “may have to do
that.” He also asked whether the supplier would lower the price if he “went all the
way,” which according to agents’ testimony, referred to purchasing the entire kilogram
of cocaine. In a recorded call the morning of April 15, Delgado told Jones that the
supplier was almost at Delgado’s house (the arranged delivery spot), and Jones
responded that he was “leaving out.” A police officer surveilling the house testified that
he witnessed the putative supplier arrive at Delgado’s house. In a recorded call about
40 minutes later, Delgado told Jones that the supplier left because “he didn’t feel right.”
The same officer later pulled over the supplier and found 1.25 kilograms of cocaine in
his car.
The prosecution also presented evidence that Jones used a firearm in furtherance
of a drug conspiracy. On the same day Jones was arrested, June 6, 2012, officers
recovered a handgun from his car, which was in a garage located a few feet from the
apartment building. The gun was found in a hidden compartment and next to
approximately $18,000 in cash. Nelson testified that in a call on January 17, 2012, Jones
told him he had heroin in the same car. The indictment charged that “on or about
June 6, 2012,” Jones possessed the gun in furtherance of a drug conspiracy.
No. 17‐1543 Page 3
On appeal Jones first challenges his conviction for conspiracy. First, he argues
that the indictment was defective for failing to include specific intent as an element.
Jones asserts that because every essential element must be alleged in an indictment,
United States v. Miller, 883 F.3d 998, 1002 (7th Cir. 2018), and specific intent is an element
of § 846, see United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007), the government’s
failure to allege specifically that he “knowingly and intentionally” conspired is grounds
for dismissing this charge. Because Jones challenges his indictment for the first time on
appeal, “it is immune from attack unless it is so obviously defective as not to charge the
offense by any reasonable construction.” United States v. Sandoval, 347 F.3d 627, 633 (7th
Cir. 2003).
The indictment here was not “obviously defective.” Id. “[A]n indictment under
21 U.S.C. § 846 is sufficient if it alleges a conspiracy to distribute drugs, the time during
which the conspiracy was operative and the statute allegedly violated … .” United States
v. Sweeney, 688 F.2d 1131, 1140 (7th Cir. 1982) (quoting United States v. Bermudez,
526 F.2d 89, 94 (2d Cir. 1975)). These requirements were satisfied: The indictment
alleged that Jones “did conspire” to “knowingly and intentionally possess with intent to
distribute” cocaine and other narcotics, beginning in February 2010, in violation of
21 U.S.C. § 846. True, the indictment did not explicitly accuse Jones of “knowingly and
intentionally” conspiring. The verb “conspire,” however, necessarily entails an intent to
act. See United States v. Cox, 536 F.3d 723, 727–28 (7th Cir. 2008) (explaining that the
indictment for § 846 did not need to define the term “conspire” to be sufficient). To
“conspire,” like to “induce” or “entice,” United States v. Smith, 223 F.3d 554 (7th Cir.
2000), involves intent.1 And “[i]t is not necessary to spell out each element” of an
offense in an indictment so long as “each element [is] present in context.” Id. at 571; see
also United States v. Resendiz‐Ponce, 549 U.S. 102, 107–08 (2007) (explaining that the
indictment need not specifically allege each element if it is stated implicitly).
Jones next challenges the sufficiency of the evidence to support the finding that
the conspiracy trafficked in at least five kilograms of cocaine. He acknowledges that at
times he bought cocaine by himself and contends that those transactions were not in
furtherance of any conspiracy with James Jones and Nelson. Because Nelson testified to
only two transactions in which he acted on Jones’s behalf involving less than five
In an unpublished decision, a panel of this court concluded that the words “did
1
conspire” suffice to allege a knowing and intentional agreement. United States v. Barrios‐
Ramos, 732 F. App’x 457, 460 (7th Cir. 2018).
No. 17‐1543 Page 4
kilograms of cocaine total, Jones contends that the government failed to prove the five‐
kilogram quantity.
Jones’s argument rests upon a view that because only Nelson and James Jones
were listed as coconspirators in the indictment, they had to be directly involved in
every transaction, and if they were not, Jones’s transactions were unrelated “buyer‐
seller” deals. But the quantity of drugs implicated in the conspiracy is not limited to
those that the named coconspirators sold together. Each conspirator is liable “for
amounts involved in transactions by co‐conspirators that were reasonably foreseeable to
him.” United States v. Jones, 900 F.3d 440, 446 (7th Cir. 2018). Nelson testified that Jones
used Nelson’s apartment for many drug deals, amounting to him receiving over
20 kilograms of cocaine. Although Jones insists that these deals were separate from the
conspiracy, the jury was entitled to conclude otherwise. Jones conducted business out of
Nelson’s apartment, in a building Jones leased, and Nelson observed the deals and
watched Jones count the money. A reasonable jury, having concluded that a conspiracy
existed among Jones, Nelson, and James Jones, could conclude the cocaine in these
transactions was part of the conspiracy. See United States v. Moon, 512 F.3d 359, 364 (7th
Cir. 2008) (concluding that the jury could infer from the evidence that the parties were
working together).
Jones also challenges the sufficiency of the evidence of his attempted possession
of cocaine stemming from the unconsummated April 15 purchase. To sustain a
conviction for attempt, the government had to show that Jones had the intent to commit
the offense and took a substantial step toward completing it. See United States v. Carrillo,
435 F.3d 767, 777 (7th Cir. 2006). Jones argues that the government did not prove that he
took a “substantial step” because no one saw him arrive at Delgado’s house or
confirmed that he had the money to complete the purchase. He compares his case to
United States v. Cea, 914 F.2d 881 (7th Cir. 1990). There, we concluded that there was
insufficient evidence of a substantial step to support a conviction for attempt to possess
cocaine. Id. at 888. Cea agreed over the telephone to “be over shortly” to buy the drugs
and was arrested upon leaving his home shortly thereafter. Id. But there was no
evidence where the deal was to take place or where Cea was going when he left his
home, leaving this court to conclude that “[s]upposition will not suffice” to show that
Cea was going to complete a drug transaction. Id. By comparison, here Jones said he
was headed to Delgado’s home, an officer surveilling the property testified that the
supplier had arrived, and the supplier was later stopped with the cocaine in his
possession.
No. 17‐1543 Page 5
Jones appears to counter that his recorded calls with Delgado were improperly
presented to the jury because the statements made in them are hearsay. He argues that
because Delgado was not charged as a coconspirator, anything that Delgado said on the
intercepted calls is inadmissible. We note first that just because Delgado was not
charged with conspiracy in the same indictment as Jones (indeed, Delgado later pleaded
guilty to conspiracy to possess and distribute drugs and the indictment detailed the
April 15 sale) does not mean that he is not a coconspirator for the purposes of
Rule 801(d)(2)(E) of the Federal Rules of Evidence. See United States v. Rea, 621 F.3d 595,
604–05 (7th Cir. 2010); Moon, 512 F.3d at 363. Moreover, if Delgado’s statements
concerning the price of cocaine and the supplier’s arrival time were presented to show
that Jones intended to purchase drugs, they would not be hearsay because they were
not presented for the truth of the matter asserted. See FED. R. EVID. 801(c)(2). And Jones’s
own statements, of course, were admissible as admissions of a party opponent pursuant
to Rule 801(d)(2)(A), without reference to the coconspirator rule. See United States v.
Maholias, 985 F.2d 869, 877 (7th Cir. 1993).
Finally, Jones argues that at trial the government and district court constructively
amended the count of the indictment charging use of a firearm in furtherance of a drug
crime. A constructive amendment to an indictment is more than a variation in proof; it
occurs when the court or the government broadens the possible bases for conviction
beyond those presented to the grand jury. See United States v. Turner, 836 F.3d 849, 863
(7th Cir. 2016). Jones argues that because the indictment alleges that he possessed the
firearm on June 6, 2012, the government had to prove that he used it in furtherance of
the drug‐trafficking conspiracy that day. But Jones was convicted of a conspiracy that
ran from February 2010 through June 6, 2012. And conspiracy is the crime he was
accused of using the firearm to further.
Moreover, the government was not required to prove a specific drug transaction
or other act in furtherance of the alleged conspiracy during which Jones used the gun.
To show that he possessed the gun “in furtherance of” the conspiracy, the government
was required to “present a viable theory as to how the gun furthered” the drug
conspiracy and “present specific, non‐theoretical evidence to tie that gun and the drug
crime together under that theory.” United States v. Castillo, 406 F.3d 806, 815 (7th Cir.
2005). To establish the nexus, the court uses common sense and consults the
nonexhaustive list of factors set forth in United States v. Seymour, 519 F.3d 700 (7th Cir.
2008). See United States v. Eller, 670 F.3d 762, 766 (7th Cir. 2012).
No. 17‐1543 Page 6
Jones does not dispute the jury’s finding that he possessed the gun, which was
found inside his car that was parked in a garage Jones controlled. And the government
established a nexus between the firearm and the drug conspiracy: Jones ran a drug‐
trafficking conspiracy out of a building located feet from the garage, Jones stored heroin
in the car, and the gun was found next to thousands of dollars in presumed buy money
or proceeds. See United States v. Morris, 576 F.3d 661, 670–72 (7th Cir. 2009). A gun’s
proximity to drugs or drug profits supports the “in furtherance” element. Seymour,
519 F.3d at 715. The jury was entitled to conclude that the gun was “not used for
ordinary personal protection but rather to thwart those who might try to relieve [the
defendant] of his inventory and profits.” See United States v. Fouse, 578 F.3d 643, 651 (7th
Cir. 2009). And it is “unanimously accepted” that a gun can further a drug‐trafficking
offense “by providing the dealer, his stash[,] or his territory with protection.” United
States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005).
We have considered Jones’s other arguments and none has merit.
AFFIRMED
United States v. Antwan Jones
Combined Opinion