In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3209
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ARY S TEVENSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 07 CR 30178—William D. Stiehl, Judge.
A RGUED M ARCH 31, 2011—D ECIDED S EPTEMBER 7, 2011
Before C UDAHY, P OSNER, and M ANION, Circuit Judges.
M ANION, Circuit Judge. A jury convicted Gary
Stevenson of one count of conspiracy to distribute and
possess with intent to distribute cocaine and crack co-
caine. The district court sentenced Stevenson to life im-
prisonment. Stevenson appeals, arguing that the
district court erred in admitting evidence related to
his distribution and use of marijuana and that the
verdict is not supported by the evidence, but rather
constitutes a variance from the indictment. We affirm.
2 No. 09-3209
I.
In 2007, the Drug Enforcement Administration (“DEA”)
began investigating a crack and cocaine distribution
ring operating out of St. Louis, Missouri. The investiga-
tion resulted in the eventual charge of defendant-
appellant Gary Stevenson, in a fourth superseding in-
dictment, with one count of conspiring to distribute and
possess with the intent to distribute crack and cocaine. An
initial indictment had charged Stevenson, Diallo Bohanna
and Kimyata Young with one count of conspiracy to
distribute and possess with intent to distribute cocaine
and crack cocaine. A second, third, and fourth super-
seding indictment were later returned, adding as co-
defendants Gloria Stevenson (Gary’s mother), Shalonda
Byrth, Herman Moore, Gregory Hogan, Dave Kent, Tony
Friends, Jr., Pamela Stevenson (Gary’s sister), Priscilla
Hawkins, Nathaniel Lewis, Ernest Miller, Sr., Kenneth
Talton and Jennifer Wilkins. All of the co-defendants
pleaded guilty, with the exception of Gary Stevenson,
Hogan, Moore, Talton, and Wilkins, who pleaded not
guilty and proceeded to trial in the Southern District of
Illinois. The trials were severed for all of the defendants,
except for Hogan and Wilkins who were tried together.
This appeal concerns only Gary Stevenson’s trial.1
1
Juries convicted Hogan, Moore, Talton and Wilkins, and they
were sentenced, respectively, to life, 360 months’, 160 months’,
and 121 months’ imprisonment. All four appealed their con-
victions to this court. Prior to oral argument, the government
confessed error, namely the failure to prove venue in the
(continued...)
No. 09-3209 3
At Stevenson’s trial, in addition to government agents,
Friends, Young, Byrth, Miller, Hawkins, Pamela Steven-
son, Lewis, Bohanna, and Kent testified. Stevenson
did not testify, nor did he call any witnesses in his de-
fense. The government witnesses testified as follows:
Stevenson lived in St. Louis, Missouri and, on a weekly
basis from 2003 to 2007 sold large quantities of crack
cocaine to Miller and Kent, among others. At times,
Miller and Kent would pay cash, and at other times,
Stevenson would front them the crack and they would
pay Stevenson later. Stevenson also sold large amounts
of powder cocaine to Bohanna on a weekly basis from
2006 to 2007, again regularly fronting the drugs to
Bohanna.
Beginning in 2006, Stevenson traveled to Kansas City,
Missouri to purchase marijuana and cocaine from Tony
Friends. Before leaving St. Louis, Stevenson or Moore
would remove speakers from his automobile and hide
money for the drug purchase inside the speakers, before
1
(...continued)
Southern District of Illinois, to defendants Wilkins and Moore
and their convictions were vacated. See United States v. Wilkins,
No. 09-3457 (January 28, 2011); United States v. Moore, No. 09-
3731 (January 28, 2011). Following oral argument, the govern-
ment filed a motion to confess error to defendants Talton and
Hogan, again on the basis of the lack of venue in the Southern
District of Illinois. We granted that motion and their convictions
were likewise vacated. See United States v. Talton, No. 09-2751
(April 28, 2011); United States v. Hogan, No. 09-3588 (April 28,
2011). Stevenson’s appeal is the only one remaining before us.
4 No. 09-3209
reinstalling the speakers in a courier car. Then one of
several women (Pamela Stevenson, Byrth, Wilkins, or a
woman only identified at trial as “Sweet Pea”) would
proceed in the money-laden courier car to Kansas City.
(Stevenson purposely enlisted women to act as couriers,
believing that females were less likely to attract the at-
tention of law enforcement.) Stevenson paid the
couriers several hundred dollars per trip, although he
never paid his sister Pamela. But, as Pamela testified at
trial, she “was more like hook my man up with
marijuana and I be cool.” And Pamela indirectly
benefitted by this arrangement because she and her
boyfriend, Talton, resold the marijuana they received
from Stevenson out of the residence they shared with
Pamela’s three children.
In addition to the women couriers, Stevenson also
paid Lewis to drive a “trail car” during the round trips
to Kansas City. As a trail car driver, Lewis was
responsible for keeping in contact with the couriers en
route and for watching out for any law enforcement
presence. And if there were any problems, he was to
contact Stevenson and inform him of the difficulties.
Sometimes, though, Stevenson himself would drive
the trail car with a friend or a girlfriend. Kimyata Young
testified that she went with Stevenson to Kansas City
on one occasion, although she claimed she did not
know the true purpose of the trip at first—she thought
she was going shopping. In fact, when Young first met
him, Stevenson told her that he was a police officer
who worked for the Drug Task Unit. But she soon
No. 09-3209 5
learned the truth. Notwithstanding the fact that Young
was well educated (she had a Master’s degree and was
a licensed clinical social worker) and gainfully
employed (making in the mid-$30,000), she not only
continued to associate with Stevenson, but also helped
him by storing cocaine and marijuana at her home.
At trial, the couriers and trail-car drivers testified that
when they arrived in Kansas City, they would go to
Friends’ home. There, they would back the courier car
into Friends’ garage and then wait for Stevenson and
Friends, and sometimes help them, to remove the drug
money from the speakers and replace it with cocaine
and/or marijuana. Friends testified that he served as a
middleman for the transaction and that the drugs were
supplied by an individual from Mexico named Ramone.
Ramone was also present on several occasions during
the drug exchanges.
After packing the courier car with the drugs, the
courier would return to St. Louis, with Stevenson or
others following in the trail car. Most of the time when
they arrived the courier car would be taken to the home
of Stevenson’s mother. There Stevenson, Moore, or
Talton would remove the speaker box and bring it into
the kitchen, where it would be unloaded. On a few occa-
sions, Stevenson stored the cocaine at Young’s home;
Stevenson would later call Young and tell her to bring it
to his mother’s house. Once the cocaine was unloaded
in the kitchen, Stevenson would either break the cocaine
into smaller packages and resell it or cook it into crack
and then sell the crack. Stevenson sold the cocaine and
6 No. 09-3209
crack to several regular customers, including, as noted
above, Bohanna, Miller and Kent, oftentimes fronting
the drugs to these individuals. The couriers and trail-
car drivers often witnessed both the crack cooking and
the cocaine and crack sales.
The DEA discovered Stevenson’s drug operation
through its investigation of Bohanna’s East St. Louis,
Illinois crack dealing. After conducting several controlled
purchases of crack from Bohanna, the DEA arrested
Bohanna in late August 2007. Following his arrest,
Bohanna agreed to cooperate with the DEA and fingered
Stevenson as his source. Bohanna also agreed to call
Stevenson and arrange to purchase additional cocaine,
which he did.
Unbeknownst to Stevenson, DEA agents were
watching him the evening he was scheduled to meet
Bohanna. After observing Stevenson enter Young’s resi-
dence, officers directed Bohanna to call Stevenson and
tell Stevenson that he was in the St. Louis area and
ready to meet. In response to Bohanna’s call, Stevenson
told Bohanna to meet him in the area of Riverview and
Broadway. Stevenson and Young then left Young’s resi-
dence, with Stevenson carrying a small white bag. The
duo originally headed toward the Riverview/Broadway
area, but they never finished the trip; instead they
turned around and headed back to Young’s home. DEA
agents then attempted to arrest Stevenson, but he drove
off, leading agents on a high-speed chase. Stevenson
evaded police and disappeared for several months.
During Stevenson’s months in hiding, he changed the
No. 09-3209 7
voicemail message on his cell phone directing callers to
DTA (which in text-talk means “Don’t Trust Anyone”) and
telling them to dump their telephones. Stevenson also
left a message for one of the DEA agents, taunting him,
as the agent explained at trial, by saying: “[t]hat it was
my job to catch him and it was his job to run, bitch.”
While Stevenson was on the run, the government gath-
ered evidence. They immediately obtained a search
warrant for Young’s home and inside recovered a bowl
of powder cocaine inside the refrigerator, three bags of
crack cocaine underneath the kitchen sink, three scales
in the kitchen, and two kilo wrappers in the kitchen
trash. Agents also recovered a total of thirteen grams of
crack cocaine and 231 grams of powder cocaine. Agents
also interviewed friends and associates of Stevenson
and obtained statements from several who agreed to
cooperate with the government. Stevenson was eventu-
ally arrested in early 2008.
Based on the above evidence, a jury convicted Steven-
son of conspiracy to distribute and possess with
intent to distribute cocaine and crack cocaine. Stevenson
appeals.
II.
On appeal, Stevenson presents two arguments. First,
he argues that the district court erred in admitting evi-
dence related to his distribution and use of marijuana.
Second, Stevenson contends that the evidence does not
support a verdict for the conspiracy charge—but rather
8 No. 09-3209
the proof at trial constitutes a variance from the indict-
ment.2
2
Stevenson does not challenge venue, which as noted above
served as the basis for the government’s confession of error in
Moore’s, Wilkins’, Talton’s and Hogan’s cases. Stevenson’s
trial, which was the first of four, differed significantly from
those for the co-conspirators. In Stevenson’s trial the govern-
ment called Bohanna as a witness and he provided the neces-
sary link to the Southern District of Illinois, testifying that
Stevenson fronted him crack cocaine (thus making him a
member of the conspiracy, see United States v. Stott, 245 F.3d 890,
903 (7th Cir. 2001), amended on rehearing in part, 15 Fed.Appx.
355), which Bohanna then sold in East St. Louis, Illinois (thus
making venue proper in the Southern District of Illinois. See
United States v. Ochoa, 229 F.3d 631, 636-37 (7th Cir. 2000)).
Bohanna was not called to testify in Moore’s, Wilkins’, Talton’s
or Hogan’s cases, although it is unclear why not. During the
opening statement at Stevenson’s trial, the prosecutor stated
that “Diallo Bohanna is going to tell you in 2006, 2007 he
would purchase multiple ounces of cocaine from the
Defendant practically weekly. What Diallo Bohanna would
do is he would come in this District, this side of the river in
Illinois, typically from East St. Louis, drive to St. Louis, and pick
up his cocaine from the Defendant, bring it back to this
District, turn it into crack, and sell it to his customers for
profit. The reason that’s important is that’s why this case has
been indicted in this District, even though most of it takes
place in St. Louis. Diallo Bohanna is the link. He’s the reason
this case has been indicted here in this courtroom today.”
Bohanna’s testimony established proper venue for Stevenson’s
trial. The record does not show why he did not testify at the
trials of the other accused co-conspirators.
No. 09-3209 9
A. Marijuana Evidence
Throughout Stevenson’s three-day trial, the govern-
ment elicited testimony from several witnesses that
Stevenson had distributed and used marijuana. Stevenson
argues on appeal that this testimony was “bad acts”
evidence and was inadmissible under Rule 404(b).
Rule 404(b) provides that evidence of a defendant’s
prior bad acts is inadmissible character evidence, but
may be admitted to prove the defendant’s “motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, . . . .” Fed.
R. Evid. 404(b). In its brief on appeal, the govern-
ment does not assert a valid purpose for the marijuana
evidence, but instead argues that Stevenson did not
preserve the issue because his only objection to the mari-
juana evidence was based on relevancy and not
Rule 404(b), and therefore our review is solely for plain
error. Stevenson counters that his objection was suf-
ficient to put the government and the court on
notice that he was complaining about the admission of
“bad acts” evidence. Alternatively, Stevenson claims
that this court should nonetheless review his Rule 404(b)
challenge for an abuse of discretion because the pros-
ecution violated Rule 404(b) by not providing his attor-
ney with the requisite notice of its intent to introduce
such evidence. See Fed. R. Evid. 404(b) (“[U]pon request
by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice of good cause
shown, of the general nature of any such evidence it
intends to introduce at trial.”).
10 No. 09-3209
Whether Stevenson preserved the issue and whether
the government’s violation of Fed. R. Evid. 404(b)’s notice
requirement should excuse an insufficient objection to
the marijuana evidence, however, is irrelevant because
any error was harmless.3 See Fed. R. Crim. P. 52(a); United
States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007) (“Errors
do not merit reversal when the government proves that
they are harmless, that is, that they did not affect the
outcome of the trial.”). The evidence against Stevenson
was overwhelming. Stevenson’s supplier, Friends,
testified at trial that he supplied Stevenson with huge
quantities of cocaine over the years. Several couriers
and trail-car drivers also testified, not just about their
roles, but also about events they witnessed—Stevenson
secreting the money and drugs in the speaker boxes;
his cooking of the cocaine into crack; and his weighing,
packaging, and selling large quantities of crack and
cocaine out of his mother’s house. Additionally, three of
Stevenson’s regular purchasers, to whom Stevenson
fronted the drugs, also testified. Testimony from gov-
ernment agents concerning Stevenson’s behavior also
bolsters the testimony of the co-conspirators. Specifically,
Stevenson led officers on a high-speed chase the evening
of the attempted sting operation. After eluding officers,
he then taunted them, leaving messages evidencing an
3
On appeal, Stevenson also argues that the marijuana evi-
dence “was far more prejudicial than probative under
Fed.R.Evid. 403,” Appellant Brief at 33, but Stevenson did not
present that argument to the district court and even had he,
as noted, any error was harmless.
No. 09-3209 11
awareness of guilt, i.e., it’s my job to run and your job
to catch me. Stevenson also changed his voicemail
message to inform his friends and family members that
there was a “snitch” and that they should dump their
cell phones and trust no one. For his part, Stevenson
called no witnesses and presented no evidence.
Moreover, the references to marijuana, for the most
part, were merely repetitive of the references to the
charged crack and cocaine—e.g., Stevenson “would come
from St. Louis and buy kilograms of cocaine and pounds
of marijuana from me.” In fact, Stevenson argues on
appeal that there was no reason for the additional mari-
juana evidence to be admitted because it was “entirely
cumulative” and that “of the 32 pages of trial testimony
where marijuana evidence appears, 27 include the same
or substantially similar testimony with respect to
cocaine or crack.” Appellant Brief at 30. But rather
than bolster Stevenson’s argument, this redundancy
highlights why any error was harmless. It is also wrong
to think that a jury would hear the same witnesses
testify about marijuana and cocaine and crack and con-
clude that those witnesses must be truthful regarding
the cocaine and crack because they also said that
Stevenson had distributed or used marijuana. See United
States v. Persico, 425 F.2d 1375, 1384 (2d Cir. 1970) (“As the
trial judge noted, [the witness’] testimony as to other
crimes and criminal propensity was so closely bound up
with his directly relevant testimony with regard to the
[charged] hijacking that unless the jury believed the
relevant testimony it is quite unlikely that it would
have been influenced by the accompanying testimony
12 No. 09-3209
of other crimes.”). For all of these reasons, we conclude
that any error related to the admission of testimony
concerning marijuana was harmless.
B. Variance
Stevenson next challenges his conspiracy conviction,
styling his challenge as a fatal variance between the gov-
ernment’s indictment and its proof at trial. A conspiracy
variance claim is treated as a sufficiency of the evidence
claim, United States v. Womack, 496 F.3d 791, 794 (7th Cir.
2007), which normally means that this court reviews
the evidence in the light most favorable to the govern-
ment. But in this case, because Stevenson did not raise
the issue in the district court, our review is for plain
error. Id. Under this exacting standard, reversal is war-
ranted “only if the record is devoid of evidence pointing
to guilt, or if the evidence on a key element was so
tenuous that a conviction would be shocking. United
States v. Irby, 558 F.3d 651, 653 (7th Cir. 2009) (internal
quotations omitted).
In arguing that the evidence was insufficient to sup-
port the charged conspiracy, Stevenson claims “[i]n
short, the government failed to prove that Mr. Stevenson
conspired with numerous of the other purported co-
conspirators charged in the indictment.” Appellant’s
Brief at 42. Stevenson’s argument fails as a legal matter.
Legally, “[t]o convict a defendant of conspiracy, the
government must prove that (1) two or more people
agreed to commit an unlawful act, and (2) the defendant
knowingly and intentionally joined the agreement.” United
No. 09-3209 13
States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). But “the
government doesn’t have to prove with whom a defendant
conspired; it need only prove that the defendant joined
the agreement alleged, not the group.” United States v.
Townsend, 924 F.2d 1385, 1389-90 (7th Cir. 1991). Thus, “to
overturn a conspiracy conviction on the ground of vari-
ance, an appellant must show both that he did not
conspire with each defendant and that he was preju-
diced by being tried with defendants who were not his
coconspirators.” Id. at 1390. In this case, Stevenson
merely claims that the government did not show that
he conspired with five of the fourteen individuals
named in the indictment. Legally, though, the govern-
ment was not required to prove their participation, id.,
and therefore Stevenson’s argument is without merit.
In his reply brief, Stevenson claims a variance based
on a different ground: he no longer claims that the
problem with the evidence is that the government did
not establish the participation of all the alleged co-con-
spirators. Rather, Stevenson argues in his reply brief
that “the government offered insufficient evidence at
trial that Mr. Stevenson engaged in a conspiracy to
possess and distribute both crack and cocaine as
charged in the indictment.” Appellant’s Reply Brief at 19.
Stevenson then claims that “[t]he testimony of Messrs.
Miller and Kent showed, at most, individual buy-sell
transactions with Mr. Stevenson involving crack.” Ap-
pellant’s Reply Brief at 21. Arguments not presented
until a reply brief are waived. See United States v.
Boisture, 563 F.3d 295, 299 n.3 (7th Cir. 2009). But even
if Stevenson had not waived this argument, it would fail.
14 No. 09-3209
As noted above, the government presented evidence that
Stevenson fronted crack to Miller and Kent and this
alone would be sufficient to make the duo part of the
conspiracy and support the verdict that Stevenson con-
spired to distribute crack. See Stott, 245 F.3d at 903.
But in addition to this evidence, several of the other co-
conspirators testified that after Stevenson purchased
cocaine from Friends, they helped him transport it back
to his mother’s house, where they observed him cook
the cocaine into crack and then sell both cocaine and
crack to various purchasers. This evidence was sufficient
to establish Stevenson’s conspiracy to deal in both
crack and cocaine. Accordingly, the additional theory
presented in Stevenson’s reply brief fares no better than
his initial argument. And the jury’s verdict stands.
III.
The evidence of Stevenson’s guilt was overwhelming.
Numerous members of the conspiracy, serving in all
roles—supplier, courier, trail-car driver, and pur-
chaser—testified at length about the scope and opera-
tions of the conspiracy. Given this overwhelming evi-
dence, any error in admitting evidence related to
marijuana was harmless. Moreover, the overwhelming
evidence established the conspiracy charged in the in-
dictment—conspiracy to distribute and possess with
intent to distribute cocaine and crack cocaine. There
was no variance. We A FFIRM .
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