In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3630 & 10-3652
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONALD L. S MITH and K EVIN B AKER,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-01053—Suzanne B. Conlon, Judge.
A RGUED S EPTEMBER 16, 2011—D ECIDED M ARCH 21, 2012
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Ronald L. Smith and Kevin
Baker were convicted of conspiracy to possess with
intent to distribute and to distribute, and attempted
possession of five kilograms of cocaine. Baker was
also convicted of using a telephone in commission
of the conspiracy. The defendants appeal the district
court’s denial of their motion for a new trial which was
2 Nos. 10-3630 & 10-3652
based on the government’s surprise disclosure of the
identity of its confidential informant. Smith also appeals
his sentence, arguing that the court based a three-level
increase under U.S.S.G. § 3B1.1(b) only on unreliable
testimony. Finding no error requiring remand, we affirm.
I. Background
Smith and Baker were charged with drug-related
crimes. Count One of the indictment alleged that begin-
ning no later than in or about 2006 and continuing to
at least December 6, 2008, they conspired to possess
with intent to distribute and to distribute five kilograms
or more of cocaine. 21 U.S.C. §§ 841(a)(1) & 846. Count
Two alleged that on or about December 5, 2008, they
attempted to possess with intent to distribute five kilo-
grams or more of cocaine. 21 U.S.C. §§ 841(a)(1) & 846;
18 U.S.C. § 2. Count Three charged that on or about
December 5, 2008, Baker used a telephone in commis-
sion of the conspiracy. 21 U.S.C. § 843(b).
Before trial, Smith moved for disclosure of the
identity of all confidential informers, arguing that their
identities were relevant and helpful to the adequate
preparation of a defense. The government opposed the
motion, invoking the confidential informant privilege. The
government stated that if any of the confidential infor-
mants were to testify at trial, their identities would be
disclosed. The district court denied the motion, concluding
that Smith had not shown a need for disclosure sufficient
to outweigh the public’s interest in preserving the in-
Nos. 10-3630 & 10-3652 3
formants’ anonymity and encouraging citizens to report
crimes.
At the jury trial in August 2010, the government
alleged that Smith managed or supervised an operation
in which various couriers, including Baker, trans-
ported drugs and money between Chicago, Illinois, and
Columbus, Ohio. The government’s evidence included
the testimony of two participants in a drug organiza-
tion run by twins Margarito and Pedro Flores, and co-
operating witnesses Antonio Aguilera and Daniel Torres.
The government also played recorded conversations
allegedly between Smith and Baker and their supplier,
a confidential source (CS), regarding the December 5,
2008, attempted drug transaction. The audiotapes of the
recorded conversations had been made available to
the defense in March 2009 and draft transcripts were
provided around July 2010. Neither the recordings
nor transcripts identified the CS by name. The govern-
ment did not identify the CS in its opening statement,
but referred to him as Smith’s and Baker’s “supplier.”
Nor did the government hint in its opening statement
that it would disclose the CS’s identity to the jury.
The government’s first witness was Aguilera. He
claimed that he picked up “thousands” of kilos of cocaine
for the Flores brothers and delivered the cocaine, in 5-to-
50-kilogram amounts, to their customers. He stated that
each customer was directly tied to a specific area, that
is, there was a specific area where he would deliver to
each customer. And he explained his general practices
and methods of delivery.
4 Nos. 10-3630 & 10-3652
Aguilera testified that he first met Smith in 2006 when
Aguilera delivered cocaine to Smith at the direction of
the Flores brothers. On that occasion, Aguilera and Cesar
Perez, who also worked for the Flores brothers, went to
meet a customer and deliver cocaine. Perez introduced
Smith to Aguilera as “Pit Bull” or “Bulldog.” Smith gave
Aguilera the keys to his vehicle and told him where it
was located. Aguilera and Perez got the vehicle, a pewter
GMC Tahoe with Ohio plates, from a parking garage
and drove it to a stash house. At the stash house,
Aguilera and Perez filled a secret, hidden compart-
ment in the vehicle with as much cocaine as they could
fit—15 kilos. They took the vehicle back to the parking
garage, returned the keys to Smith, and told him
where they had parked the vehicle.
Aguilera testified that about one week later, he met
Smith again in the same area as the first meeting, near
a Harley-Davidson store in downtown Chicago. The
purpose was the same—to deliver narcotics. According
to Aguilera, the Flores brothers instructed him to go to
the area and meet the customer. Aguilera and Perez
met Smith, got the keys to his vehicle, which was the
same pewter GMC Tahoe or GMC Yukon 1 with Ohio
plates, and got the vehicle from the same parking garage
as on the previous occasion. Aguilera and Perez drove
1
Both the Chevy Tahoe and GMC Yukon are full-size sport
utility vehicles made by GM. They are quite similar, with
slight differences in trim and styling. The Yukon tends to
carry a heftier price tag.
Nos. 10-3630 & 10-3652 5
the SUV to the same stash house, opened the hidden
compartment, removed the money inside, and loaded
it with 15 kilos of cocaine. They put the money in a
duffle bag and left it inside the stash house. Then
they returned the SUV to the area near the Harley-
Davidson store and parked it. Aguilera testified that
when he returned the keys to Smith, Smith said “he
didn’t want to come down to pick it up anymore,” which
meant “he didn’t want to drive to Chicago” anymore
and “he might be sending a nurse down to pick up the
stuff.” After that second meeting, Aguilera did not see
Smith again until the trial.
A few weeks later, Aguilera, again acting on instruc-
tions from the Flores brothers, returned to the same
area near the Harley-Davidson store “to drop off and pick
up.” Aguilera stated that he met with a female who
gave him the keys to the same pewter GMC Yukon
with Ohio plates and told him where it was located.
As before, Aguilera drove the vehicle to the stash
house, removed the money from inside the hidden com-
partment, loaded it with cocaine, and returned the SUV
to the parking garage. Aguilera did not know the
woman’s name.
Sometime thereafter, perhaps two weeks or a month
later, Aguilera met the same woman again in the same
area near the Harley-Davidson store. This time she was
accompanied by Baker. Margarito Flores had sent
Aguilera to meet “[t]he guys from Ohio,” pick up a
vehicle, and unload it and load it. Baker gave Aguilera
the keys to the same pewter GMC Yukon with Ohio
6 Nos. 10-3630 & 10-3652
plates. As before, Aguilera drove the SUV to the stash
house, unloaded the money from the hidden compart-
ment, and loaded it with cocaine. He then returned
the SUV and keys to Baker.
The next time Aguilera met Baker, Baker was driving
a blue Nissan Xterra. Aguilera picked up Baker in front
of his hotel and drove him to the parking garage down-
town, where Aguilera loaded the Xterra with kilograms
of cocaine. About one or two months earlier, the same
woman accompanying Baker when Aguilera first met
him had turned the Nissan Xterra over to Aguilera so
he could install a hidden compartment; he then
returned the vehicle to her. On two occasions in the
summer of 2006, Aguilera delivered cocaine to a man
who was driving either the pewter Yukon with Ohio
plates or the Nissan Xterra with Ohio plates. Aguilera
didn’t know the man’s name.
During its direct examination of Aguilera, the gov-
ernment sought to introduce into evidence photographs
of the Flores brothers. The defense objected. The court
addressed the objection outside the jury’s presence. It
was at that point that the government first disclosed
that Pedro Flores was the CS in the recorded conversations.
The second day of trial, the government called Special
Agent Matt McCarthy to testify and provide a founda-
tion for the admission of the recorded conversa-
tions involving the CS. Agent McCarthy testified that on
December 3, 2008, he was recording phone calls made
by a cooperating individual. The prosecutor asked the
agent for the name of the cooperating individual, and
Nos. 10-3630 & 10-3652 7
the agent stated that it was Pedro Flores. Neither defen-
dant objected to this identification at this time. The agent
also testified that he made several recordings of tele-
phone conversations made by Pedro Flores over the
course of two or three days beginning on December 3.
The defendants moved for a mistrial on the ground
that the CS’s identity had been disclosed to the jury
but had not been disclosed to the defense before trial.
They argued the disclosure prejudiced them in terms of
preparation and defense strategy. The government re-
sponded first, by erroneously stating that the defense
had not sought disclosure of the CS’s identity; second,
by stating that it did not intend to call Pedro Flores as
a witness; third, by arguing that Pedro’s identity was
offered to establish that the witnesses—Aguilera, Special
Agent McCarthy, and Torres—were all referring to
the same person; and fourth, that Pedro’s statements
were not being offered for their truth. The court effec-
tively denied the motion and admitted the recorded
conversations into evidence.
The audiotapes were played for the jury and corre-
sponding transcripts also were made available. Before
the audiotape recordings were played, however, the
court gave a limiting instruction that the CS’s statements
were not to be considered for their truth, but “to place
in context and help [the jurors] understand the state-
ments that allegedly were made by defendants on the
recordings.” The recordings were of seven telephone
calls Pedro Flores made to Smith and Baker between
December 3 and 5. In the first six calls to Smith, Smith
8 Nos. 10-3630 & 10-3652
arranged for the delivery of 20 to 25 kilograms of cocaine
to be picked up by Baker in Chicago. During that conver-
sation, Flores and Smith said things that suggested
an existing drug relationship: Flores told Smith, for
example, “I might give you a cheaper number to see if
you move them a little faster,” and “I’m gonna work it
out with you and make you happy this time,” to
which Smith responded, “[Y]ou tell me that all the
time man.” In another conversation, Smith told Flores
where Baker was staying in Chicago and gave him
Baker’s phone number so Flores could contact Baker
directly. Flores told Smith to tell Baker that “Monkey
is going to call him.” Two minutes later, Flores called
Baker who confirmed his location and that “the dude”
(Smith) sent “the change.” Flores advised that he was
going to have “my boy Monkey” call Baker.
Then drug task force officer Mario Elias, acting in an
undercover capacity as “Monkey,” called Baker and
arranged to meet in front of Baker’s hotel. During that
call, Baker confirmed that “Monkey” was going to “pick
up and drop off.” The agent drove to the hotel, met
Baker, and the two drove their own vehicles to a
parking garage. Baker gave the agent $260,190 in cash
from a hidden compartment in his truck, and the agent
gave Baker a bag containing fake cocaine. After Baker
put the bag into the hidden compartment, Elias gave
the signal and Baker was arrested.
In addition, government witness Torres, who testified
that he picked up and delivered cocaine and money for
the Flores brothers from late 2006 to 2008, stated that
Nos. 10-3630 & 10-3652 9
he delivered cocaine to Baker about seven times. Ac-
cording to Torres, he met Baker in various parking
garages located in an area in downtown Chicago. Torres
said that Baker drove a blue Nissan Xterra with Ohio
license plates and “a bigger Suburban Tahoe-type SUV
of a grayish, pewter color.” Torres stated that he would
give Baker a duffle bag filled with cocaine or load the
cocaine into the hidden compartments in Baker’s vehicles.
At times, Baker gave Torres money in exchange for
the cocaine.
The jury convicted Smith and Baker of all charges
against them. Following trial, the defendants moved for
a new trial under Federal Rule of Criminal Procedure 33.
Smith argued unfair surprise and prejudice resulting
from the claimed tardy disclosure of the CS’s identity
as drug kingpin Pedro Flores. The district court found
that the claim of surprise was “supported by the rec-
ord.” However, the court said: “The key question . . .
under Rule 33 is not whether the prosecutors’ conduct
was fair or even candid, but rather whether pretrial
disclosure would have changed the result. Prejudice
sufficient to compel a different verdict has not been
shown.” Baker argued that had he known the CS’s
identity, his counsel would have addressed this unfav-
orable fact in opening statement. Baker asserted that
his counsel lost credibility with the jury by referring to
the CS merely “as someone acting at the government’s
direction.” The district court found Baker’s argument
reasonable, but concluded that he did “not establish
resulting prejudice sufficient to support a conclusion
10 Nos. 10-3630 & 10-3652
that the jury’s verdict would have been not guilty but
for addressing the issue in opening statement.” The
court stated that the timing and manner of the disclosure
of the CS’s name “suggests a troubling degree of games-
manship. A claim of unfairness is justifiable.” Deciding
that the defendants hadn’t shown resulting prejudice or
that a substantial right was jeopardized, the court ruled
that the interests of justice did not require a new trial.
At sentencing the court gave Smith a three-level en-
hancement for his role in the offense, upon finding that
he was a manager or supervisor and that the criminal
activity involved five or more participants. U.S.S.G.
§ 3B1.1(b). The government had argued that the criminal
activity involved six participants: Smith, Baker, Aguilera,
Torres, and the two unidentified couriers. Smith argued
the government failed to prove that the two unidentified
couriers were participants and thus failed to establish
five or more participants. The district court found
that “[t]he couriers [Aguilera and Torres] while . . . their
testimony about specific transactions and amounts
lacked specificity or the indicia of reliability, their testi-
mony about how things operated was corroborated and
did establish there were other couriers and other people
involved, including [themselves].” The court therefore
found a basis for applying the three-level enhancement:
“Viewing the evidence in a light most favorable to the
Government, Mr. Smith supervised Mr. Baker in a con-
spiracy involving five or more persons.” Smith was
sentenced to 14 years; Baker was given the statutory
minimum of 10 years.
Nos. 10-3630 & 10-3652 11
The defendants argue that the district court erred
in denying their motions for a new trial because they
showed prejudice by the government’s improper
surprise disclosure of the CS’s identity to the jury. They
assert that in ruling on their motions, the court applied
the wrong legal standard—that they had not shown
prejudice sufficient to compel a different verdict. Smith
also argues that the court clearly erred in giving him
a three-level increase under U.S.S.G. § 3B1.1(b) for his
role in the offense as a manager or supervisor of a
criminal activity involving five or more participants.
II. Discussion
Rule 33 provides that “the court may . . . grant a new
trial if the interest of justice so requires.” We review
the denial of a motion for a new trial under Rule 33 for
an abuse of discretion. United States v. Boender, 649 F.3d
650, 654 (7th Cir. 2011). “The district court abuses its
discretion when it makes an error of law or when it
makes a clearly erroneous finding of fact.” United States
v. Freeman, 650 F.3d 673, 678-79 (7th Cir. 2011).
We review a district court’s findings regarding role in
the offense for clear error and vacate only if “we are left
with the definite and firm conviction that a mistake
has been made.” United States v. Johnson, 489 F.3d 794, 796
(7th Cir. 2007). “We defer to a district court’s credibility
finding, ‘which can virtually never be clear error.’” United
States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010) (quoting
United States v. Pulley, 601 F.3d 660, 661-62 (7th Cir. 2010)).
12 Nos. 10-3630 & 10-3652
A. Disclosure of the CS’s Identity
The defendants contend that the prosecutor improp-
erly disclosed the CS’s identity at trial and the district
court erred in denying their motion for a new trial
based on that disclosure. When considering allegations
of prosecutorial misconduct, we first determine whether
the prosecutor’s conduct was improper. Freeman, 650
F.3d at 683; United States v. Moore, 641 F.3d 812, 818
(7th Cir. 2011). If so, we evaluate the conduct in light of
the entire record to determine if the conduct deprived
the defendants of a fair trial. Moore, 641 F.3d at 818-19.
The government had no legal duty to disclose the CS’s
identity before trial. Smith had sought disclosure, and
the government opposed it, claiming the informant’s
privilege; and the district court ruled in favor of
the government. The defendants have not identified
any specific disclosure obligation or other rule that was
violated. Rather, they appeal to fundamental fairness,
claiming that if the government is going to disclose
the CS’s identity to the jurors at trial, it should be
required to disclose it to the defense before trial, and if
the government is going to withhold the CS’s identity
from the defense before trial, then it shouldn’t be
allowed to use it at trial. The defendants assert that the
prosecutor has a duty to ensure that a defendant
receives a fair trial, see, e.g., Berger v. United States, 295
U.S. 78, 88 (1935) (a prosecutor’s “interest . . . is not that
it shall win a case, but that justice shall be done”);
Freeman, 650 F.3d at 680 (“A prosecutor has a special
duty . . . to assure that defendants receive fair trials.”
Nos. 10-3630 & 10-3652 13
(quotation and citation omitted)), which is true. How-
ever, “[t]he ultimate question is whether the comment
‘so infected the trial with unfairness as to make the re-
sulting conviction a denial of due process.’ ” Moore, 641
F.3d at 819 (quoting United States v. Hale, 448 F.3d 971,
986 (7th Cir. 2006)); see also Freeman, 650 F.3d at 683.
The district court did not make an explicit finding
that the prosecutor’s conduct was improper, but charac-
terized the disclosure of Pedro Flores’s name as “tardy,” a
“surprise,” and something that “suggests a troubling
degree of gamesmanship” and made a “claim of unfair-
ness . . . justifiable.” We are equally critical of the way
the government hid behind the informant’s privilege
leading up to trial and then sprung the CS’s identity on
the defense and jury mid-trial. At oral argument the
government did not offer a good explanation for why
it proceeded in this way. It seems to us that the district
court treated the disclosure as improper conduct. And
we, too, shall do the same. But a prosecutor’s improper
conduct alone is not sufficient to warrant a new trial.
We evaluate “whether the improprieties impacted
the outcome of the trial, and we will reverse only if there
is a reasonable probability that, in the absence of the
improprieties, the defendant would have been acquitted.”
United States v. McGee, 408 F.3d 966, 984 (7th Cir. 2005)
(citing United States v. Boyd, 55 F.3d 239, 241 (7th Cir.
1995)); see also Freeman, 650 F.3d at 681 (framing the
standard for a new trial as “whether the district court
clearly erred when it determined that there was any
reasonable likelihood that [the improper conduct]
14 Nos. 10-3630 & 10-3652
affected the verdict”). It is here that the district court
made a misstep. It thought the decision to grant a new
trial turned on whether “pretrial disclosure would have
changed the result.” 2 Missing from the formulation used
by the district court is the “reasonable probability” or
“reasonable likelihood” language that is required. See,
e.g., McGee, 408 F.3d at 984. Thus, the court applied
the wrong, and a heightened, legal standard in denying
the motions for a new trial. See Stanley v. Bartley, 465
F.3d 810, 813 (7th Cir. 2006) (“To show a reasonable
probability of a different outcome is a less demanding
burden than to show that the outcome would have been
different.”); cf. United States v. Williams, 81 F.3d 1434,
1440 (7th Cir. 1996) (reviewing district court’s denial of
a motion for new trial and differentiating having to
show “a ‘reasonable probability of a different result’”
with having to show that the defendants “would in fact
have been acquitted”). Although application of the
wrong standard may require a remand in some cases, it
is not required here because even under the correct,
more lenient standard, the defendants are entitled to
no relief. We are convinced that the government’s disclo-
sure of the CS’s identity did not so infect the trial with
unfairness as to deprive the defendants of due process.
2
The district court also considered whether Smith made a
showing “sufficient to compel a different result” and whether
Baker made a showing “sufficient to support a conclusion
that the jury’s verdict would have been not guilty but for
[the improper conduct].”
Nos. 10-3630 & 10-3652 15
Any effect that the government’s disclosure that the
CS was Pedro Flores may have had on the verdict was
insignificant. The government’s evidence of the defen-
dants’ guilt, including Aguilera’s testimony about his
dealings with Smith and Baker, Torres’s testimony
about his cocaine transactions with Baker, the audiotape
recordings in which Smith arranged with the CS for the
delivery of cocaine to Baker, and Baker’s appearance at
the contemplated cocaine transaction with $260,190 and
a vehicle equipped with a hidden compartment, was
overwhelming. There is no reasonable probability that
the trial’s outcome would have been different absent
the disclosure. Thus, the district court did not abuse its
discretion in denying the defendants’ motion for a new
trial.
In addition, the defendants knew from the govern-
ment’s pretrial disclosures that it alleged they were in-
volved as customers in a drug trafficking organization
run by the Flores brothers. The defendants also knew of
the CS’s existence: The government provided them
with the audiotapes of the recorded conversations long
before trial; the transcripts were provided before trial
as well. In one recorded conversation, Smith acknow-
ledges a past relationship with the CS, saying he had
been trying to get in touch since the weekend; and
when the source says that he will “work it out” and “make
you happy this time,” Smith says “you tell me that all
the time man.” The defendants should have been able
to discern the CS’s identity based on the recorded con-
versations. This, of course, assumes that Smith was
the other participant in six of the conversations. He
16 Nos. 10-3630 & 10-3652
disputes that he was, but the jury apparently believed
that he was the speaker. Baker does not contest that he
was the person speaking with the CS in one of the
recorded conversations. Baker should have known the
identity of the person with whom he was speaking
less than two hours before his arrest.
Even if the defendants didn’t know the CS’s identity,
they should have known that the CS was their supplier.
In one conversation, the CS told Smith that he would
send him “like 20, 25. . . I’ll get them together today,” that
he “might give [Smith] a little cheaper number . . . see
maybe if [Smith] can move them a little faster,” which
at the very least suggests the CS’s role is that of a drug
supplier. There can be no question that the defendants
knew the charges against them included a cocaine con-
spiracy and attempted possession of cocaine on Decem-
ber 5, 2008. They had the transcripts that reflected
that the recorded calls occurred from December 3 to 5.
Given this information, they should have understood
in advance of trial that the CS was their supplier.
And that’s not all. In opening statement, the govern-
ment repeatedly referred to the cooperating source as
the defendants’ supplier and stated in reference to and
leading up to the December 5, 2008, transaction that
Smith had spoken by phone with “his supplier.”
Furthermore, Baker’s defense was that he didn’t know
he was in the middle of a drug transaction. Smith
defended on the ground that the voice on the recorded
conversations was not his. The district court offered the
defense an opportunity to articulate, outside the gov-
Nos. 10-3630 & 10-3652 17
ernment’s presence, how the disclosure affected their
trial strategy. The court also offered the defendants a
brief recess of a day or so to prepare their defense in
response to the disclosure, but they didn’t take the
court up on its offer. All of this strongly suggests that
the defendants have not shown prejudice due to the
disclosure. See Moore, 641 F.3d at 821 (the defendant’s
“failure to assert a need for a cautionary instruction
directly following the [alleged improper question
about gang affiliation], or at the close of evidence, in
spite of the court’s clear willingness to consider it, under-
mines his current argument that any comment or refer-
ence regarding gang affiliation” denied him due pro-
cess); United States v. Mathur, 624 F.3d 498, 506 (1st Cir.
2010) (defendant showed no prejudice from belated
disclosure of alleged Brady materials where defendant
identified no “plausible strategic option that the delayed
disclosure hampered or foreclosed,” he was not pre-
vented from asserting his defense theories at trial, and
he rejected the court’s offer of a continuance); see also
United States v. Cruz-Velasco, 224 F.3d 654, 665 (7th Cir.
2000) (stating that a “new trial is warranted for a
discovery violation only if the remedy offered by the
district court was inadequate to provide the defendant
with a fair trial”) (quotation omitted).
Smith and Baker argue that they did not request a
delay at the close of the government’s evidence because
at that point there was nothing they could do to mitigate
the damage that had already been done. They assert
prejudice because their counsel allegedly lost credibility
18 Nos. 10-3630 & 10-3652
with the jury by failing to address in opening state-
ments that Pedro Flores was the speaker in the
recorded conversations. But they have not indicated
how they would have addressed the fact that the CS
was Pedro Flores. And they have not asserted that
their defense theories would have been different had
they only known the government would disclose the
CS’s identity. We do not see how knowledge that the
CS was Pedro Flores would have changed the defense
theories or could have impacted those theories. Nor can
we tell how such knowledge would have caused the
defense to conduct further investigation, call witnesses,
or present evidence.
The defendants allege that their Sixth Amendment
right to effective assistance of counsel is implicated. The
harmlessness of the disclosure leads to the conclusion
that there was no prejudice for purposes of the right
to counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The district court did not abuse its discretion
in denying the defendants’ motion for a new trial based on
the government’s disclosure of the CS’s identity at trial.
B. U.S.S.G. § 3B1.1(b) Adjustment
Smith challenges the three-level adjustment under
U.S.S.G. § 3B1.1(b), specifically whether the criminal
activity involved five or more participants. He argues
that the district court’s finding that the two unnamed
couriers were participants was based only on Aguilera’s
unreliable testimony. In reviewing Smith’s sentence, “we
Nos. 10-3630 & 10-3652 19
must ‘ensure that the district court committed no sig-
nificant procedural error, such as . . . selecting a sentence
based on clearly erroneous facts . . . .’ ” United States v.
Halliday, No. 10-2337, 2012 WL 447450, at *7 (7th Cir.
Feb. 14, 2012) (quoting United States v. Abbas, 560 F.3d
660, 666 (7th Cir. 2009)); see also Gall v. United States, 552
U.S. 38, 51 (2007).
A sentence should be based on “information that has
sufficient indicia of reliability to support its probable
accuracy.” Johnson, 489 F.3d at 797 (quotation omitted).
“Indicia of reliability” may come from, inter alia, the
provision of facts and details, id. at 798, corroboration by
or consistency with other evidence, see United States v.
Schaefer, 291 F.3d 932, 942 (7th Cir. 2002), or the opportu-
nity for cross-examination, see United States v. Hankton,
432 F.3d 779, 793 (7th Cir. 2005). The requirement of
reliable evidence, however, is a limitation on the court’s
consideration of hearsay and other “evidence with uncer-
tain provenance.” United States v. Torres-Ramirez, 213
F.3d 978, 980 (7th Cir. 2000); see also U.S.S.G. § 6A1.3(a).
An appellate court may not disregard a district court’s
decision to believe a witness testifying under oath—
“unless the testimony is illogical or contradicted by
documents or other physical evidence, making it
clearly erroneous to accept the witness’s version of
events.” Torres-Ramirez, 213 F.3d at 980-81; see also
Hankton, 432 F.3d at 791 (a judge’s finding that a witness
is credible bolsters the judge’s finding that the wit-
ness’s testimony is reliable).
Smith argues that United States v. Johnson, 999 F.2d 1192
(7th Cir. 1993), mandates that we vacate the three-level
20 Nos. 10-3630 & 10-3652
increase. There, as here, the defendant argued that the
district court erred in enhancing his sentence under
U.S.S.G. § 3B1.1(b), claiming the evidence was insuf-
ficient to support the finding as to the number of partici-
pants. The district court relied on an agent’s trial testi-
mony that an informant reported that the defendant
used ten to fifteen teenagers to distribute crack. The in-
formant never identified any of the teenagers. The infor-
mant’s statement was the only evidence offered to
prove that the defendant was a supervisor or manager
of at least five participants. There was evidence that
the informant was not always reliable and tended to
exaggerate and “[t]here was expert testimony that the
defendant was a schizophrenic and not capable of
directing or managing a large scale operation.” Id. at 1197.
We remanded for a further finding on the enhancement.
Id. at 1198.
Like the informant in Johnson, Aguilera never identi-
fied the male and female couriers, Aguilera’s testimony
was the only evidence of their participation on
which the government relied, and Aguilera has been
judged unreliable in certain respects. But this is where
the similarities end. Aguilera’s testimony wasn’t hear-
say. He testified at trial and was subject to thorough cross-
examination. The sentencing judge was the trial judge and
had the opportunity to hear Aguilera’s testimony and
observe his demeanor and manner while testifying.
On top of that, no evidence suggested that Smith was
incapable of managing or supervising five or more par-
ticipants. Given these differences, Johnson doesn’t
require that we find Aguilera’s testimony about the
Nos. 10-3630 & 10-3652 21
unnamed couriers too unreliable to support the dis-
trict court’s sentencing finding.
Smith also relies on United States v. Acosta, 85 F.3d 275
(7th Cir. 1996), for the proposition that “evidence that
is contradictory on its face is perhaps the prototype of
unreliable evidence, and . . . [provides] an inadequate
basis for calculating a defendant’s base offense level
under the Guidelines.” Id. at 283. In Acosta, the govern-
ment relied on a witness’s trial testimony to establish
the total drug quantity attributable to the defendant.
The witness testified that he made between 30 and 50
cocaine purchases from the defendant. He also testified
first that the smallest amount of cocaine he obtained
from the defendant at one time was between a half ounce
and a kilogram of cocaine, but then claimed that nine
ounces was the smallest amount. Id. at 278. The district
court calculated the drug quantity by multiplying the
number of cocaine purchases by the quantity the judge
thought was the smallest amount Johnson got in a
single transaction, an acceptable way of estimating the
quantity. Id. at 282. But the judge gave no explanation
why he believed that nine ounces was the smallest
amount purchased. Id. The problem was that the judge
relied on “one of two contradictory statements offered
by a single witness” but did not “directly address the
contradiction and explain why [he] credit[ed] one state-
ment rather than the other.” Id. (quotation omitted).
Here, however, the district court didn’t rely on contra-
dictory testimony in finding that the unnamed couriers
were participants in the criminal activity: Smith acknowl-
22 Nos. 10-3630 & 10-3652
edges that the contradictory testimony concerned the
time line of his alleged meetings with the unnamed
woman and the other participants and Baker’s role in
the drug operation. The district court did not rely on
the time line in finding five or more participants, and
Smith doesn’t dispute that Baker was a participant, what-
ever his role may have been. Furthermore, Aguilera’s
testimony that he met Smith in approximately Decem-
ber 2006 was in response to a leading question which
was put to him following a short break in trial. He previ-
ously testified that he met Smith “in approximately
2006.” If the first meeting with Smith occurred “approxi-
mately 2006,” and not in “December 2006,” then Aguilera’s
testimony about when he met with Smith, Baker, and
the unnamed couriers is not necessarily contradictory.
According to Smith, Aguilera’s contradictory testi-
mony about Baker’s role in the drug operation under-
scores the unreliability of his testimony about the
unnamed couriers. It is true that Aguilera’s grand jury
testimony and trial testimony conflicted with respect
to Baker’s role. Before the grand jury, Aguilera identi-
fied a photograph of Baker but described the role of
another person who, like Baker, Aguilera referred to as
“Old Boy.” The contradiction was explored both by
the government on direct examination and on cross-
examination. The district court at sentencing noted that
Aguilera misidentified Baker twice as a Chicago-based
dealer and “changed his tune about a month before
trial.” However, concerns with Aguilera’s testimony
about Baker become less troubling given Torres’s testi-
mony that he, too, delivered cocaine for the Flores
Nos. 10-3630 & 10-3652 23
brothers and specifically to Baker who drove a blue
Nissan Xterra or a gray, pewter-colored Tahoe-type
SUV—the very same vehicles used by Smith and the
unidentified couriers. Moreover, the undisputed evi-
dence of Baker’s presence and conduct at the December 5
meeting supports Aguilera’s trial testimony as to
Baker’s role in the drug operation.
Smith also asserts that Aguilera’s testimony was not
his own. He complains that the government asked
several leading questions and about the “remarkable
similarity” between Aguilera’s testimony and Torres’s
testimony. The government did ask several leading
questions of Aguilera, but they did not concern the
identity of the unnamed couriers. And although
Aguilera’s and Torres’s claims about the amount of
cocaine they distributed was similar, that criticism
doesn’t apply to Aguilera’s testimony about the uniden-
tified couriers, which Smith says was uncorroborated. At
sentencing, when considering U.S.S.G. § 3B1.1(b), the
district court asked the government if it was relying on
the testimony of Aguilera and Torres. The government
responded that it was relying on “the testimony of
Mr. Aguilera as to the participation of the two uniden-
tified workers of Mr. Smith[.]”
Finally, Smith argues that Aguilera’s unreliability as
to drug quantity shows his unreliability concerning the
unidentified couriers. A sentencing court may credit
some portions of a witness’s testimony while disre-
garding others. See United States v. Hollins, 498 F.3d 622,
630 (7th Cir. 2007) (holding district court did not err at
24 Nos. 10-3630 & 10-3652
sentencing in crediting certain portions of a drug
courier’s testimony and discrediting other portions
where the court observed the testimony and judged
the courier’s veracity); cf. United States v. Erazo, 628
F.3d 608, 612 (D.C. Cir. 2011) (holding sentencing court
did not clearly err in finding that one portion of
co-defendant’s testimony was credible while finding
other portions incredible). In finding that Aguilera’s
and Torres’s testimony as to the amount of cocaine dis-
tributed to Smith and/or Baker was unreliable, the
district court contrasted that testimony with other
aspects of their testimony:
[T]he numbers they came up with were inflamed or
speculative. I mean, they just seemed to have no
nothing, no explanation for the amounts they came
out with, and it was vague testimony, not corroborated
by anything. Unlike some of the aspects of their testimony
in terms of contacts and methodology of delivery, yes, that
provided evidence a jury could base its verdict on . . . .”
(Emphasis added.) Thus, the district court did not find
Aguilera’s testimony unreliable in toto.
Instead, the judge carefully considered his testimony,
rejecting only the specific aspects she found unreliable,
while accepting those aspects she found reliable. The
judge found that Aguilera’s testimony about the two
unidentified couriers fell into the latter category. She said
that “while . . . [Aguilera’s and Torres’s] testimony about
specific transactions and amounts lacked specificity or
the indicia of reliability, their testimony about how
things operated was corroborated and did establish
Nos. 10-3630 & 10-3652 25
there were other couriers and other people involved[.]” It
is unclear precisely what the district judge meant in
saying that “their testimony . . . was corroborated” and
established the involvement of other couriers, given the
government’s assertion that it was relying on only
Aguilera’s testimony as to the two unidentified couriers.3
But even if the district court erred in finding that
Aguilera’s testimony about the other couriers was cor-
roborated, or at least erred in relying on that corrobora-
tion when the government didn’t assert it, remand is
not required. Corroboration is not the only indicia of
reliability. Sufficient indicia of reliability may come from
the provision of facts and details, Johnson, 489 F.3d at
798, or the opportunity for cross-examination, Hankton,
432 F.3d at 793. The district court heard Aguilera’s testi-
mony and all the other trial testimony. Aguilera was
personally involved with Smith, Baker, and the two
3
The record would establish, however, that Torres’s testi-
mony lent some corroboration for Aguilera’s testimony about
the other couriers. Torres was asked: “[Y]ou also told the
government that whoever it was who was picking up from
Ohio [whom Torres identified as Baker], that there were
a number of different drivers, correct?” Torres answered, “Yes.”
It seems that the government gave too much away in relying
only on Aguilera’s testimony to establish the participation of
the two other couriers. The district judge was not mistaken
in finding that Aguilera’s testimony about the other couriers
was corroborated. Yet the government has not argued
that Aguilera’s testimony about the two couriers was cor-
roborated.
26 Nos. 10-3630 & 10-3652
unidentified couriers. Although Aguilera didn’t know
the other couriers’ names and provided no physical
description of them (he wasn’t asked for one), he did
provide some details about his contacts with them. He
testified as to where he met the female courier (in the
same area where he met Smith), the vehicles they
used—the same SUVs used by Smith and Baker, and
the common method of delivery as to the woman. Much
of Aguilera’s testimony was corroborated: the vehicles
the couriers used, the type of location where the drug
transactions took place, and methods of delivery. Torres
testified that he delivered cocaine to Baker in parking
garages in downtown Chicago and that Baker drove a
gray or pewter Tahoe-type SUV and a blue Nissan
Xterra. And the December 5 attempted transaction was
arranged and conducted in a way consistent with
Aguilera’s description of how he made his deliveries
generally.
Furthermore, Aguilera was subjected to a thorough cross-
examination. The sentencing judge presided over the
trial, sorted through Aguilera’s testimony, and decided
which aspects were reliable and could be credited, and
which could not. The judge did not clearly err in
finding Aguilera’s testimony about the involvement of
the two unidentified couriers sufficiently reliable to
support the sentencing enhancement. Therefore, we
uphold the district court’s finding that Smith’s crim-
inal activity involved five or more participants and
its application of U.S.S.G. § 3B1.1(b).
Nos. 10-3630 & 10-3652 27
III. Conclusion
The district court’s judgments are A FFIRMED.
3-21-12