In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3908 & 09-3914
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER C. B ELL,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 97 CR 74 & 09 CR 19—Barbara B. Crabb, Judge.
A RGUED M AY 21, 2010—D ECIDED O CTOBER 20, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
T INDER, Circuit Judges.
T INDER, Circuit Judge. A jury convicted Christopher
Bell of distributing more than five grams of cocaine
base. See 21 U.S.C. § 841(a)(1). The district court sentenced
him to 292 months in prison, revoked his previous term
of supervised release, and sentenced him to an addi-
tional 60 months for violating the conditions of his super-
vised release by committing another crime. Bell now
2 Nos. 09-3908 & 09-3914
appeals several of the court’s evidentiary rulings and
contends that the prosecutor made inappropriate com-
ments during closing argument. His companion appeal
challenges the revocation of his previous term of super-
vised release. After argument, at Bell’s request, we or-
dered supplementary briefing regarding the application
of the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372 (2010), to his case. We now affirm in
all respects.
I. Background
On January 13, 2009, Christopher Bell met with Brian
Dorenzo in a Wal-Mart parking lot in Beloit, Wisconsin,
and “fronted” him 5.69 grams of crack cocaine. Bell was
unaware that Dorenzo was acting as a government in-
formant, and he made several incriminating statements
that were captured by recording equipment hidden in
Dorenzo’s pocket. For instance, Bell parried Dorenzo’s
request for a “little tester piece” by stating, “My name is
the test,” and assured Dorenzo, “I guarantee what they
got right there is better than anything they got.” Bell also
mentioned that he might be difficult to contact because
he frequently traveled between Beloit and other regional
cities, and boasted, “I got the best dope in the Midwest.”
The following day, Bell and Dorenzo reconvened in the
parking lot and Dorenzo paid Bell $200 in government-
supplied cash for the fronted crack. The monetary trans-
action was not captured on tape due to an equipment
malfunction.
Bell, who had recently been discharged from a federal
halfway house and was still on supervised release, was
Nos. 09-3908 & 09-3914 3
later arrested after a traffic stop and charged with distrib-
uting five or more grams of cocaine base in connection
with the January 13 transaction. See 21 U.S.C. § 841(a)(1).
At his trial, the government played for the jury
and introduced into evidence the two-minute audio
recording of the January 13 transaction. It also called
Dorenzo, who explained that he began cooperating with
law enforcement officials after Bell approached him at
the halfway house and tried to get him to sell cocaine.
Dorenzo related his version of events, including the
details of his pre-transaction preparations (such as the
search of his person and car) and his post-transaction
payment by law enforcement. The government also
presented the testimony of five law enforcement officers
involved with the controlled buy, several of whom
testified about viewing the drug transaction and subse-
quent settling up. One of them testified about a video
she took of Bell in the Wal-Mart parking lot near the
time of the deal; the video was played for the jury and
introduced into evidence.
Bell took the stand in his own defense. He denied
delivering crack to Dorenzo. Instead, he explained that
he had a “giving heart” and often loaned money and
provided other assistance to halfway house residents
like Dorenzo, who were short on cash and could not
readily obtain items like weight loss pills. Tr. 72, Sept. 15,
2009. Bell testified that he and Dorenzo had discussed
Bell’s weight loss and that Dorenzo had expressed an
interest in trying Hydroxycut, a brand of diet pills to
which Bell attributed his success, but did not have the
money to purchase the pills. (Hydroxycut pills can be
4 Nos. 09-3908 & 09-3914
legally purchased over the counter.) Bell testified that
he agreed to give Dorenzo some Hydroxycut pills as
well as a $200 loan. Bell said that on January 13, he met
Dorenzo at Wal-Mart and gave him ten Hydroxycut
pills and two one-hundred dollar bills. (The officers who
searched Dorenzo and his car after the Wal-Mart rendez-
vous testified that they found neither cash nor pills.)
Bell maintained that the tape recording of the January 13
meeting was consistent with his account. According to
Bell, when he said, “I got the best dope in the Midwest,” he
was referring to the Hydroxycut pills. He also testified
that the term “dope” was not used to refer to crack cocaine
in the Beloit, Wisconsin, area, and that individuals in
his social circle often referred to their personal geo-
graphic origins (i.e., “the Midwest”) when “conversating”
with one another. He further explained that he was
referring to his own positive experience with Hydroxycut
pills when he said, “My name is the test.”
Bell’s “giving heart” theory was supported by his
brother-in-law and a former halfway house resident,
who testified that Bell loaned them money and that Bell
and others referred to diet pills as “dope.” Bell also put
forth the alternative theory that Dorenzo set him up to
get him back in prison so incarcerated gang members
could carry out a retaliatory “hit” on him. Bell’s ex-wife
offered testimony in support of this theory, and Bell
explained that he was aware of the hit and had men-
tioned his frequent travel between Midwestern cities
during the January 13 transaction to throw Dorenzo (and
the gang) off his trail.
Nos. 09-3908 & 09-3914 5
Over Bell’s relevance objection, the government cross-
examined Bell about a letter he sent to Reggie Booker, a
former roommate of his at the halfway house. In the
letter, which was admitted into evidence in full as Gov-
ernment Exhibit 9, Bell wrote to Booker, “I need you to
testify to the truth of me loaning money, too you like
$20 and you would give it back. . . . Also that I was
loaning money too people and they would give me
extra back . . . .” The letter went on to ask Booker to
testify that Bell lost weight by walking, working out,
and using Hydroxycut and Lipo-6 diet pills. The letter
further instructed Booker to testify about “the times you
would call me to bring you CD’s I would make or bring
you food,“ and asked him to “explane that how we use too
talk about how we hated drugs, and would never go
back too that lifestyle, also, explane how I felt like my
life, was endanger and knew that it was a hit out on my
life.” At the top of the letter, Bell directed Booker to
“Please get rid of this in the to[ilet] when your done,” and
at the bottom he reiterated, “Please get rid of this
when done reading.” (All errors in original.) Bell ad-
mitted that he wrote the letter and sent it to Booker a
few weeks before trial, but denied that he was at-
tempting to sway Booker’s testimony.
The government also called Booker as a rebuttal
witness over Bell’s relevancy, prejudice, and “other acts”
propensity objections. Booker testified that Bell called
him and sent him two letters about testifying in the
case, including Exhibit 9. He stated that he was not con-
forming his testimony to Bell’s requests because he did
not want to commit perjury. Booker instead testified
6 Nos. 09-3908 & 09-3914
that after Bell’s release from the halfway house he
returned frequently to visit Booker. Booker explained
that while Bell did bring him things like CDs, the
delivery of sundries was merely a guise under which
Bell sought to discuss “processing cocaine” and “dope
transactions” with him. On one occasion, Booker
testified, Bell asked him to cook five kilograms of
cocaine into crack.
Bell returned to the witness stand on surrebuttal
and denied asking Booker to cook cocaine. He also
denied that the letters were an attempt to influence
Booker’s testimony. Bell characterized the letters as
attempts to get Booker to come to trial to testify about
the truth; he explained that he “wanted him to come
testify because he knew the truth about me loaning
money to different individuals such as his [sic] self,
bringing discs for him, food there for him.” Tr. 148, Sept.
15, 2009. The defense did not present any further
surrebuttal.
During closing argument, the government quoted from
and played for the jury the tape of Bell’s meeting with
Dorenzo. It also walked the jury through the other evi-
dence against Bell, including Booker’s testimony that Bell
solicited him to cook crack cocaine. The defense made
no objections, though it did ask the court to instruct the
jury that it could only use Bell’s request that Booker
cook cocaine as evidence of Bell’s credibility. The court
delivered the requested instruction. After deliberating
for a short period, the jury found Bell guilty of violating
21 U.S.C. § 841(a)(1).
Nos. 09-3908 & 09-3914 7
The district court later sentenced Bell to a within-Guide-
lines prison term of 292 months, to be followed by 96
months of supervised release. The court also found that
Bell’s new conviction constituted a “Grade A” violation
under the Sentencing Guidelines, see U.S.S.G. § 7B1.1(a)(1),
and, in accordance with 18 U.S.C. § 3583(g)(1) and
U.S.S.G. § 7B1.3(a)(1), revoked his supervised release. It
sentenced him to the statutory maximum of 60 months’
imprisonment for violating the conditions of his super-
vised release, but ordered that the time be served con-
currently with his 292-month sentence.
II. Discussion
Bell challenges the admission of his letter to Booker, the
admission of Booker’s rebuttal testimony about Bell
asking him to cook five kilograms of crack, and the pro-
priety of the government’s closing argument. He also
seeks the benefits of the recently enacted Fair Sentencing
Act of 2010. We consider his arguments in turn.
A. Bell’s Letter to Booker
Bell’s first contention is that the district court erred
when it admitted the letter he wrote to Booker. We ordi-
narily review a district court’s admission of evidence
for abuse of discretion, see United States v. Gorman, 613
F.3d 711, 717 (7th Cir. 2010), but here we review only
for plain error because Bell’s present argument—that
admission of the letter violated Fed. R. Evid. 608(b)—rests
on different grounds than the relevance objection he
8 Nos. 09-3908 & 09-3914
lodged at trial, United States v. Swan, 486 F.3d 260, 264 (7th
Cir. 2007); see also Fed. R. Evid. 103(a)(1). “Under
plain-error review, the defendant must show that (1) there
was error, (2) it was plain, (3) it affected his substantial
rights and (4) the court should exercise its discretion
to correct the error because it seriously affected the fair-
ness, integrity or public reputation of the judicial pro-
ceedings.” United States v. Jumah, 599 F.3d 799, 811 (7th
Cir. 2010); see also Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
While cross-examining Bell, the government asked
him about Booker. Bell objected on relevancy grounds,
and at sidebar the government explained that it wanted to
ask Bell about the letter. It further explained that the letter
“goes to his contacting the witnesses and trying to have
them testify to his theory of the defense.” Tr. 115, Sept. 15,
2009. After reading the letter, the district court allowed the
questioning and received the letter over Bell’s objection
even though the government never formally moved for its
admission. The government did not publish the letter to
the jury. It instead asked Bell questions like, “Now in that
letter, you told him about how you would loan people
money; is that right?”, “[Y]ou told him at the top of the
letter that you wanted him to flush the letter down the
toilet, is that correct?”, and “[Y]ou were subtly trying to tell
him what to say, is that right?” Tr. 118-19, Sept. 15, 2009.
Bell readily acknowledged that he wrote the letter, and
affirmed that in it he told Booker about his paternalistic
activities. He denied that he was trying to tell Booker
how to testify. What he was really doing with the letter,
he said, was asking Booker “in the context of the letter” to
Nos. 09-3908 & 09-3914 9
come tell the truth at trial. Tr. 119, Sept. 15, 2009. The
government ended its questioning once Bell denied
attempting to influence Booker. On redirect, Bell testified
that he “did not volunteer to write” Booker and ex-
plained that he only did so because Booker inquired
about his case and he did not want to talk about it on the
phone. Later, when the jury asked to see the letter
during deliberations, Bell argued for it to go back in its
entirety.
Bell was wise to abandon his relevancy objection on
appeal. The letter was relevant not only to Bell’s credi-
bility and that of his “giving heart” defense but also to
his consciousness of guilt. See United States v. Miller, 276
F.3d 370, 373-74 (7th Cir. 2002); United States v. Shorter,
54 F.3d 1248, 1251-52, 1260 (7th Cir. 1995). His present
theory is no more successful.
Even if we were to assume that Rule 608(b) is relevant
here and that the district court plainly erred in failing to
apply it—which we doubt, given that the letter was used
to undermine Bell’s credibility and defense theory and
not to prove any misconduct on his part, see Fed. R. Evid.
608(b)—Bell cannot satisfy the exacting plain error stan-
dard because he has not demonstrated that he was seri-
ously prejudiced by the admission of the letter. See
United States v. McGee, 612 F.3d 627, 631 (7th Cir. 2010)
(noting that an adverse effect on one’s substantial rights
in the plain error context generally “means serious preju-
dice”). Indeed, Bell’s minimally developed argument
regarding the letter does not suggest that it affected his
substantial rights in any way. The record likewise
10 Nos. 09-3908 & 09-3914
does not support such a finding. See United States v. Ali, ___
F.3d ___, No. 06-3951, 2010 WL 3365289, at *4 (7th Cir.
Aug. 27, 2010). To the contrary, it shows that Bell, not
the government, published the letter using the court-
room’s video display system and later insisted that the
letter be provided to the jury during deliberations. More-
over, the case against Bell was strong. He concedes that
the evidence was sufficient to support his conviction, see
Reply Br. 8, and we agree that the government’s case
would not have been significantly less persuasive had
the letter been excluded on any theory. Cf. United
States v. Cooper, 591 F.3d 582, 590 (7th Cir.) (discussing
harmless error analysis), cert. denied, 130 S. Ct. 3530 (2010).
We therefore affirm the district court’s admission of
the letter.
B. Booker’s Testimony
After Bell rested his defense, the government sought
to introduce rebuttal testimony from the recipient of the
letter, Bell’s halfway house roommate Booker. At sidebar,
the government explained that Booker would testify that
Bell directed him to testify about Hydroxycut and loans. It
also proffered that Booker would testify that Bell solicited
him to cook crack cocaine. Bell objected to Booker taking
the stand. The government explained that Booker’s testi-
mony would speak “directly to their defense that Mr. Bell
is—all he does is loan money and use Hydroxycut pills,
and this cuts right to—actually, it corroborates Mr.
Dorenzo and cuts right against their defense in this partic-
ular case.” Tr. 124, Sept. 15, 2009; see also id. at 125-26.
Nos. 09-3908 & 09-3914 11
The district court accepted this characterization and
overruled Bell’s objections. The court explained:
Mr. Bell was writing Mr. Booker. He was saying
remember we did this, we did this, we did this. It
adds a lot of weight to the letter and the letter was
intended to show, when Mr. Booker testifies, in fact
we were not talking just about Hydroxycut, we’re
talking about cooking crack cocaine. So I think it
is admissible for that purpose.
Sure, it shows propensity, but it shows some-
thing else independently, which I think is highly
relevant to Mr. Bell’s guilt or innocence and it’s
not going to be prejudicial.
Tr. 127, Sept. 15, 2009. Booker took the stand and told the
jury that Bell solicited him, both to cook five kilograms
of cocaine and to testify.
Bell contends that Booker’s testimony about the solicita-
tion to cook five kilograms of crack was not proper
rebuttal evidence but instead was overly prejudicial
propensity evidence that the district court failed to ade-
quately explain its reasons for admitting. He also
asserts that Booker’s testimony about cooking cocaine
was impermissible extrinsic evidence of his (Bell’s) charac-
ter for untruthfulness. See Fed. R. Evid. 608(b). We
review the admission of rebuttal evidence for abuse of
discretion. United States v. Grintjes, 237 F.3d 876, 879 (7th
Cir. 2001). Because Bell did not object to the testimony
on Rule 608(b) grounds at trial, however, we review any
Rule 608(b) rulings only for plain error. See Swan, 486
F.3d at 264; see also Fed. R. Evid. 103(a)(1).
12 Nos. 09-3908 & 09-3914
The proper uses of rebuttal evidence include the contra-
diction, impeachment, or defusion of the impact of the
evidence offered by an adverse party. Grintjes, 237 F.3d
at 879. The district court did not abuse its discretion in
concluding that Booker’s testimony would accomplish
those ends. Bell’s theory of the case was that he was
merely providing Dorenzo with diet pills and a loan
and that Dorenzo set him up by telling the police that
Bell gave him cocaine. Bell advanced this theory not only
with his own testimony, see Tr. 72, Sept. 15, 2009 (“I got
a giving heart, man, and I was helping different guys
there because I had money and stuff like that.”), but also
by calling witnesses who testified that Bell loaned them
money while they were in the halfway house. Booker’s
testimony that Bell’s good deeds, like bringing food and
other items to struggling halfway house inmates, were
undertaken with ulterior motives vitiated the “giving
heart” aspect of the defense. Booker’s testimony both
defused the impact of and contradicted Bell’s evidence.
It also impeached the witnesses who testified on his
behalf. See Grintjes, 237 F.3d at 879. The evidence was
properly admitted as rebuttal evidence.
Bell contends, however, that even if the testimony
was proper rebuttal, it should have been excluded
because it was propensity evidence that did nothing
more than invite the jury to infer that he was a large-scale
drug dealer and was acting as such when he met
Dorenzo at the Wal-Mart. See Fed. R. Evid. 404(b). He
further asserts that the government’s stated purpose for
the evidence—to damage his credibility—was disingenu-
ous, and that the mere fact that the jury heard testimony
Nos. 09-3908 & 09-3914 13
about such a large quantity of drugs unduly prejudiced
him.
“It is black-letter law that the government cannot intro-
duce evidence of a defendant’s prior bad acts to show
[his] propensity to commit the charged crime.” United
States v. Ciesiolka, 614 F.3d 347, 355 (7th Cir. 2010). To
comply with Rule 404(b), however, all the government
need show is a purpose other than to establish the defen-
dant’s propensity to commit crimes. United States v.
Edwards, 581 F.3d 604, 608 (7th Cir. 2009), cert. denied, 130
S. Ct. 1301 (2010). One purpose that is recognized
despite its absence from Rule 404(b)’s nonexclusive list
is “to attack the credibility of a witness’ testimony by
means other than attacking the witness’ general character
for truthfulness.” Serafinn v. Local 722, Int’l Bhd. of Team-
sters, 597 F.3d 908, 915 (7th Cir. 2010). “The focus of
inquiry should be on whether the prior-crimes evidence
is relevant (other than to show propensity, which may
be relevant to guilt, but is impermissible as evidence) to
an issue in the case, and, if so, whether the probative
weight of the evidence is nevertheless substantially
outweighed by its prejudicial effect or by its propensity
to confuse or mislead the jury.” Edwards, 581 F.3d at 608.
Here, the government asserted that Booker’s testimony
was relevant to impeach Bell. While the government
did not articulate a separate theory of relevancy for
Booker’s testimony about the quantity of cocaine Bell
asked him to cook, it is evident from the trial transcript
that the government was eliciting the information to
enhance Booker’s credibility, thereby increasing the
14 Nos. 09-3908 & 09-3914
impeaching power of his testimony. The five-kilogram
quantity to which Booker testified corroborated Booker’s
testimony that Bell asked him to cook the cocaine and
made it more probable that Bell would come by to
discuss the deal in person, under the guise of bringing
Booker items like CDs. The evidence was not introduced
as propensity evidence, the quantity was mentioned only
once, and, to mitigate any potential danger that the jury
would make any inappropriate inferences, the district
court delivered a limiting instruction at the close of trial.
See United States v. Vargas, 552 F.3d 550, 557 (7th Cir.
2008) (“[W]e assume that limiting instructions are effec-
tive in reducing or eliminating unfair prejudice.”). The
district court did not abuse its discretion in overruling
Bell’s “other acts” objection, and it adequately, if some-
what inarticulately, explained its reasons for allowing
Booker’s testimony.
It likewise did not plainly err by failing to exclude
the testimony pursuant to Rule 608(b). Booker’s quantity
testimony was not introduced as a specific instance of
conduct, nor was it introduced as extrinsic evidence to
prove or disprove the testimony of Bell or any other
witness; it merely rounded out Booker’s story. The
district court’s failure to exclude the testimony on
Rule 608(b) grounds was not an error, let alone a plain
or obvious one.
C. Government’s Closing Argument
Bell’s next contention is that the government’s closing
and rebuttal arguments amounted to little more than
inappropriate propensity arguments. Bell’s failure to
Nos. 09-3908 & 09-3914 15
object to the arguments during trial “relegates our
review to that of plain error, which requires [him] to
establish ‘not only that the remarks denied him a fair
trial, but also that the outcome of the proceedings would
have been different absent the remarks.’ ” United States
v. Bowman, 353 F.3d 546, 550 (7th Cir. 2003) (quoting
United States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003)).
Even absent the strictures of plain error review, our two-
part test for improper prosecutorial comments is dif-
ficult to satisfy. See United States v. McMath, 559 F.3d 657,
667 (7th Cir. 2009) (“As a general matter, improper com-
ments during closing arguments rarely rise to the level
of reversible error, and considerable discretion is en-
trusted to the district court to supervise the arguments
of counsel.” (quotation omitted)), cert. denied, 130 S. Ct.
373 (2010); United States v. Recendiz, 557 F.3d 511, 523
(7th Cir. 2009) (“[O]verturning a conviction due to a
prosecutor’s improper comments is no easy feat.” (em-
phasis omitted)). First, we “consider the prosecutor’s dis-
puted remarks in isolation to determine whether they
are improper.” McMath, 559 F.3d at 667 (quotation omit-
ted). If the comments are improper standing alone, we
then move to step two of our inquiry, wherein we con-
sider the remarks in the context of the record as a
whole and assess whether they denied the defendant
his right to a fair trial. See id.
Bell argues that the government’s closing and rebuttal
arguments center around the propensity-tinged theme
that Bell is a drug dealer. Curiously, though, Bell does not
direct our attention to the government’s assertion that
the audiotape of the January 13 transaction depicted “a
16 Nos. 09-3908 & 09-3914
crack dealer trying to make a sell.” Tr. 167, Sept. 15, 2009.
He instead points to the government’s quotation of the
audiotape—“I’ve got the best dope in the Midwest,” Tr.
162, Sept. 15, 2009—and its reminder to the jury that
Booker “told you this defendant solicited him to cook
crack cocaine,” id. at 168. As to the rebuttal argument,
Bell takes issue with the government’s repeated inquiry
of whether it was “just a coincidence” that Bell “asked
Dorenzo to participate in this drug endeavor,” that
Dorenzo’s testimony supported its interpretation of the
“best dope in the Midwest” statement, that no diet pills
or money were found on Dorenzo, and that Booker
said that Bell “solicited him in dealing crack cocaine.” Id.
at 198-99.
The comments with which Bell takes issue are not
improper. The jury heard an audiotape of Bell telling
Dorenzo that he had the best dope in the Midwest. The
government was permitted to remind the jury of this
statement and weave the statement into its theory of the
case. We are not sure exactly what “propensity aspects”
Bell sees in the “best dope” statement, see Appel-
lant’s Br. 29, particularly where he does not dispute
the authenticity of the tape, but even if there were any
the government implored the jurors to be “the judges
of what that audio means and in what context it was
said.” Tr. 167, Sept. 15, 2009. That’s not a propensity
argument; it’s an accurate statement of the jury’s respon-
sibility.
The government’s references to Booker’s testimony
were equally proper. The first time the government
Nos. 09-3908 & 09-3914 17
mentioned Booker’s testimony, it was plainly an attempt
to undermine Bell’s credibility. “Of course the defendant
had an answer for everything. He’s had that transcript.
He knew exactly what to say. But he didn’t have an
answer for Mr. Booker when Mr. Booker testified in this
case; his roommate at the halfway house, a person he
had just sent a letter to two weeks ago, a person who
told you this defendant solicited him to cook crack co-
caine.” Tr. 168, Sept. 15, 2009. Impugning Bell’s credi-
bility was both the ostensible and permissible purpose
for which Booker’s testimony about the solicitation was
admitted, and, at any rate, “[t]he government is allowed
to comment on the credibility of a witness . . . as long as
the comment reflects reasonable inferences from the
evidence adduced at trial rather than personal opinion.”
United States v. Nunez, 532 F.3d 645, 654 (7th Cir. 2008)
(quotation omitted). This reference to Booker’s testi-
mony was not improper.
The second mention of Booker’s testimony to which
Bell points is perhaps more questionable but we con-
clude that it too is not improper. Bell directs us to the
government’s rebuttal argument, where it provided a
lengthy recitation as to why Bell’s theory of the case
was illogical in the face of the evidence admitted against
him. The government began this line of argument with,
“This defendant chose Brian Dorenzo. . . . They were in
the halfway house together. That’s why he asked Dorenzo
to participate in this drug endeavor. That’s why the
defendant delivered crack to Dorenzo.” It went on to
encourage the jury to “think about this logically,” and
asked the jury a series of rhetorical questions using the
18 Nos. 09-3908 & 09-3914
phrase, “is it just a coincidence that . . . .” After asking
the jury about the January 13 audiotape and the lack of
diet pills and money found on Dorenzo, the govern-
ment asked, “Is it just a coincidence that yeah, Mr. Booker
saying that the defendant solicited him in dealing crack
cocaine? I mean that’s really what it boils down to. You
have to take these arguments and logically think
through them.” Tr. 198-99, Sept. 15, 2009.
Bell contends that this spiel is exemplary of the gov-
ernment’s attempt to persuade the jury that he was a
drug dealer. He highlights the government’s use of the
term “endeavor,” its reference to “the best dope in the
Midwest,” and its mention of Booker’s testimony
regarding Bell’s alleged “solicitation” of him. Bell is
correct that “arguing to a jury that it should convict a
defendant based on the defendant’s propensity to
commit a crime” is improper, United States v. Simpson,
479 F.3d 492, 503 (7th Cir. 2007), even if the government
did not intend to suggest an improper propensity infer-
ence, id. at 504 n.3. But he is mistaken that the comments
to which he points constitute propensity arguments. The
word “endeavor” was a reasonable, non-inflammatory
descriptor of Bell’s parking-lot dealings with Dorenzo.
And, as discussed above, the use of Bell’s own words, “I
got the best dope in the Midwest,” was not improper
either.
To the extent that the government’s argument invited
the jury to consider Booker’s solicitation testimony as
substantive evidence in the case rather than evidence
pertaining only to Bell’s credibility, there is perhaps
Nos. 09-3908 & 09-3914 19
some danger that it could lead the jury down the pro-
pensity path. But when the comment is considered as
part of the broader argument about the frailty of Bell’s
defense, as well as in the context of the record as a
whole, any incipient propensity simply does not crystal-
lize. The government was not arguing that Bell was the
type of person who would front drugs to Dorenzo, or even
that he did something similar in the past and so should
be convicted here; it argued that its theory of the case
was more persuasive than Bell’s. Even if that was a pro-
pensity argument, however, Bell is unable to demon-
strate that he was prejudiced in any way.
“In determining prejudice, we consider the following
factors: (1) whether the prosecutor misstated the
evidence; (2) whether the remark implicated a specific
right; (3) whether the defendant invited the remark;
(4) whether the district court provided (and the efficacy
of) a curative instruction; (5) whether the defendant had
an opportunity to rebut the remark; and (6) the weight
of the evidence against the defendant.” United States v.
Myers, 569 F.3d 794, 799 (7th Cir. 2009) (quoting United
States v. Clark, 535 F.3d 571, 580-81 (7th Cir. 2008)). Here,
these factors militate in favor of the government, particu-
larly under the additional burden of our plain error
review. The government did not misstate the evidence,
nor did it implicate a specific right. Bell discussed
Booker’s testimony during his closing argument and
urged the jury to infer that Booker was unreliable
because he confused dates and had four felony convic-
tions. The government responded in kind, casting doubt
20 Nos. 09-3908 & 09-3914
on Bell’s theory and asking the jury to consider how
Booker’s testimony fit into the broader evidentiary
picture. Bell had no opportunity to rebut the remark, but
the district court provided a curative instruction to the
jury, admonishing it to consider Booker’s testimony “only
on the question of defendant’s credibility.” Though Bell
disputes the efficacy of this instruction, he does so
largely by mischaracterizing a concurring opinion’s
discussion of potential infirmities inherent in Pattern
Criminal Jury Instruction for the Seventh Circuit 3.04, the
clear foundation of the instruction the district court
delivered to the jury. The instruction here was suf-
ficiently specific as to “effectively distinguish appro-
priate from inappropriate inferences.” United States v.
Jones, 455 F.3d 800, 812 (7th Cir. 2006) (Easterbrook, J.,
concurring). Most importantly, though, the evidence
against Bell was overwhelming. This case was not, as
Bell contends, a mere swearing contest between Bell and
Dorenzo. The government had an audiotape, a videotape,
the drugs that changed hands, and a significant amount
of eyewitness testimony to support its theory. The single,
minimally questionable comment about Booker’s testi-
mony during rebuttal argument did not make or break
the government’s case, and the district court did not err
in permitting it.
D. Application of the Fair Sentencing Act
On August 3, 2010, President Obama signed into law
the Fair Sentencing Act of 2010 (“FSA”). The FSA
amended the Controlled Substances Act and Controlled
Nos. 09-3908 & 09-3914 21
Substances Import and Export Act by resetting the drug
quantities required to trigger mandatory minimum sen-
tences. As is relevant here, the minimum quantity of
crack required to trigger the mandatory minimum was
increased from 5 grams to 28 grams. Compare 21 U.S.C.
§ 841(b)(1)(B)(iii)(2008) with 21 U.S.C. § 841(b)(1)(B)(iii)
(2010). If Bell were sentenced today under the FSA, his
distribution of 5.69 grams of crack cocaine would be
insufficient to trigger the mandatory minimum sen-
tencing provisions; he would be subject only to a 30-year
(360-month) maximum. See 21 U.S.C. § 841(b)(1)(C) (2010).
Three days after the FSA was enacted, Bell, who had not
previously challenged any aspect of his sentence, filed a
pro se motion for leave to file a supplemental brief re-
garding the application of the FSA to his case. We
granted Bell’s motion, ordered his court-appointed
counsel to file a brief on his behalf, and ordered the
government to file a response. After reviewing the ably
prepared briefs of both parties, we conclude that the
FSA is not retroactive and therefore does not apply to
Bell’s case.
The general federal savings statute, 1 U.S.C. § 109,
provides that “[t]he repeal of any statute shall not have
the effect to release or extinguish any penalty, forfeiture,
or liability incurred under such statute, unless the re-
pealing Act so shall expressly provide . . . .” “[T]he saving
clause has been held to bar application of ameliorative
criminal sentencing laws repealing harsher ones in force
at the time of the commission of an offense.” Warden,
Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974).
22 Nos. 09-3908 & 09-3914
We have also recognized that the application of the
savings statute extends beyond mere repeals and
reaches amendments to criminal statutes as well, see
United States v. Stillwell, 854 F.2d 1045, 1047-48 (7th Cir.
1988), unless the new law by its terms applies retroac-
tively. So if the savings statute applies to the FSA, the
FSA in turn cannot operate retroactively to reduce Bell’s
sentence.
Like our sister circuits that have considered this issue,
see United States v. Gomes, ___ F.3d ___, No. 10-11225, 2010
WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States
v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799,
at *4-*5 (6th Cir. Sept. 20, 2010), we conclude that the
savings statute operates to bar the retroactive applica-
tion of the FSA. Bell’s arguments to the contrary are
novel but ultimately unpersuasive.
First, he argues that the FSA does not “release or extin-
guish any penalty,” and therefore should not be subject
to the savings statute. In his view, the FSA merely “rede-
fines” the groups “serious” drug traffickers and “major”
drug traffickers,” two groups at whom Congress orig-
inally aimed the stiff mandatory minimum sentences for
drug crimes. He rests this argument on United States v.
Kolter, 849 F.2d 541 (11th Cir. 1988), in which the
Eleventh Circuit concluded that the savings statute did
not bar the retroactive application of a new definition of
the term “convicted felon” because the redefined term
invalidated case law, not a statute, and because the re-
definition did not affect punishment prescribed, just the
class of individuals subject to it. Id. at 544. The present
case is distinguishable from Kolter, however, in that the
Nos. 09-3908 & 09-3914 23
FSA expressly amended the punishment portion of 21
U.S.C. § 841. Additionally, the terms “serious” and “major”
drug traffickers do not appear in either the preexisting
or FSA-amended versions of 21 U.S.C. § 841. They were
employed by the House as part of its findings relating
to the initial version of the Fair Sentencing Act it passed,
see Drug Sentencing Reform & Cocaine Kingpin Traf-
ficking Act of 2009, H.R. 265, 111th Cong. § 2(3), (4) (2009),
but their absence from the enacted version of the bill,
coupled with Kolter’s emphasis on statutory redefini-
tion, renders Bell’s argument unavailing.
Bell also contends that the savings statute should not
bar the retroactive application of the FSA because the FSA
is “curative” or “remedial.” See Marrero, 417 U.S. at 661
(“[T]he general saving clause does not ordinarily
preserve discarded remedies or procedures . . . .”). Though
the terminology he employs is different from his first
argument (and appears to conflate “remedial” with
“remedy”), his underlying contention is substantially
similar. That is, he attempts to fit the FSA into one of
the narrow exceptions to the savings statute, this time
statutes that primarily affect “procedures” or “remedies.”
See United States v. Blue Sea Line, 553 F.2d 445, 448 (5th
Cir. 1977) (“If a statutory change is primarily procedural,
it will take precedence over prior law in such cases; if
the change affects a penalty, the saving clause preserves
the pre-repeal penalty.”). This argument falters for the
same reason as the first: the FSA expressly amended the
punishment portion of 21 U.S.C. § 841. No procedures or
remedies were altered by the passage of the FSA. Unlike
the statutes analyzed in Blue Sea Line and United States
v. Mechem, 509 F.2d 1193 (10th Cir. 1975), which were
24 Nos. 09-3908 & 09-3914
aimed at overhauling the Shipping Act of 1916 and the
Federal Juvenile Delinquency Act, respectively, the FSA’s
predominant purpose was to change the punishments
associated with drug offenses. The savings statute there-
fore prevents it from operating retroactively absent any
indication from Congress. And since the FSA does not
contain so much as a hint that Congress intended it to
apply retroactively, it cannot help Bell here.
III. Conclusion
Bell’s evidentiary objections to the letter and to
Booker’s testimony cannot overcome the highly deferen-
tial standards of review we apply to evidentiary deter-
minations. His contention that the government im-
properly employed propensity arguments during its
closing and rebuttal arguments is similarly unable to
clear the high bar of plain error review. We therefore
need not consider independently the merits of his
request to overturn the revocation of his supervised
release, as that claim that could only succeed if his con-
viction were rendered invalid. We A FFIRM both Bell’s
conviction and the resultant revocation of his previous
term of supervised release. We also A FFIRM Bell’s sen-
tence, to which the Fair Sentencing Act of 2010 does not
apply.
10-20-10