In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DONALD MAGGARD, DAVID BELL, JEREMY JACKSON, and
DOROTHY NEELEY,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14‐cr‐00096 — Sarah Evans Barker, Judge.
____________________
ARGUED JUNE 2, 2017 — DECIDED AUGUST 4, 2017
____________________
Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. The government brought charges
related to a methamphetamine‐distribution conspiracy in
southern Indiana against nineteen people, fifteen of whom
pled guilty to at least one charge. The remaining four—the
defendants‐appellants here—went to trial. A jury convicted
them.
2 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
The defendants raise five arguments on appeal—three
concerning the district court’s denial of the defendants’ pre‐
trial motions and two concerning the sufficiency of the evi‐
dence considered by the jury. Because the court did not err in
denying the pretrial motions and because the evidence that
the government presented at trial was sufficient, we affirm.
I. BACKGROUND
The defendants in this case are Donald Maggard, David
Bell, Jeremy Jackson, and Dorothy Neeley. In one way or an‐
other, they were all involved in a vast methamphetamine‐
distribution conspiracy in and around North Vernon, Indi‐
ana from October 2013 through May 2014. Neeley, who lived
in Indianapolis, supplied much of the methamphetamine
that she and Maggard then distributed to other dealers in the
area, including Bell and Jackson. The defendants sold much
of that methamphetamine in Maggard and Jackson’s home
neighborhood, Country Squire Lakes—a North Vernon sub‐
division engulfed in drug activity.
Maggard regularly dealt methamphetamine to Bell, who
then resold that methamphetamine to other customers. On at
least some of these deals, Bell acted as a middleman, locating
buyers for Maggard who would purchase methampheta‐
mine from his suppliers for Bell’s buyers. Maggard and Bell
often discussed the details of these transactions on the phone
and through text messages. And on at least one occasion,
Bell joined Maggard on his trip to purchase methampheta‐
mine from a supplier.
Neeley was Jackson’s primary source for methampheta‐
mine. On April 5, 2014, Neeley sold Jackson a particularly
potent batch of capsulated methamphetamine that ultimate‐
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 3
ly killed Jackson’s wife Jessie. Jessie’s death became a focal
point of the government’s case in the defendants’ trial, so the
details of that day are important for this appeal.
Early that day, Jackson and Jessie consumed some of
Neeley’s methamphetamine, and Jessie overdosed. A few
hours later, Amanda Hadley and Christina Rodgers—two of
Jackson’s friends who were visiting his home—noticed that
Jessie was sweating and convulsing in bed. Because Jackson
was not assisting her, Hadley and Rodgers went into the
bedroom and applied an icepack to her forehead. Jackson
then asked Hadley and Rodgers to leave the room, so he
could have sex with Jessie. Hadley and Rodgers complied,
leaving Jackson’s home.
Shortly thereafter, Jackson texted Desiree Booker, another
friend, about Jessie’s condition. Jackson sent Booker a photo‐
graph of Jessie, who was now unconscious. Two hours later,
Booker and her girlfriend, Kylie Day, arrived at Jackson’s
home. Jessie was still in bad shape, yet Jackson was not tend‐
ing to her. Instead, he was playing video games and listening
to music. Jackson explained to Booker and Day that he and
Jessie had taken a strong dose of methamphetamine and that
he believed that Jessie was faking an overdose. When Booker
and Day asked if they could take Jessie to the hospital, Jack‐
son refused. Booker and Day then left.
Jackson then called Hadley and Rodgers, asking them to
“come over here and help [him] before [he] knock[ed] this
bitch out,” referring to Jessie. (R. 998 at 86.) Hadley and
Rodgers returned to Jackson’s home and found Jessie col‐
lapsed on the floor. Hadley attempted CPR, and when Jack‐
son refused to call an ambulance, Rodgers called one. Before
the ambulance arrived, Jackson disposed of his drugs and
4 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
paraphernalia by passing them to a neighbor out the back
door of his home.
When the paramedics arrived, Jessie was still alive but
unconscious. They rushed her to the hospital but could not
revive her. Jessie died at the hospital early the following
morning. A sample of Jessie’s blood tested positive for am‐
phetamine and methamphetamine at six or seven times the
level of a fatal dose. An autopsy confirmed Jessie’s cause of
death to be a methamphetamine overdose.
Meanwhile, the government had been engaged in an ex‐
tensive investigation of the entire conspiracy. As part of its
investigation, the government sought and obtained two or‐
ders authorizing wire and electronic surveillance of Mag‐
gard’s phones. Through this surveillance, the government
intercepted communications between Maggard, Bell, and
Neeley, among many others. Many of these communications
concerned the defendants’ drug activity.
A grand jury indicted the defendants (and fifteen others)
on twenty‐three counts associated with their conspiracy to
distribute methamphetamine. Specifically, Maggard was
charged with conspiracy to distribute methamphetamine,
unlawful use of a cellphone to facilitate the distribution of
methamphetamine, and possession of methamphetamine
with intent to distribute. Bell was charged with conspiracy to
distribute methamphetamine and unlawful use of a cell‐
phone to facilitate the distribution of methamphetamine.
Jackson was charged with conspiracy to distribute metham‐
phetamine and distribution of methamphetamine. And
Neeley was charged with conspiracy to distribute metham‐
phetamine, two counts of distribution of methamphetamine,
and possession of methamphetamine with intent to distrib‐
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 5
ute. The indictment also included allegations about several
applicable sentencing enhancements, only one of which is
relevant on appeal: “that death resulted from the use of
methamphetamine distributed by [Jackson and Neeley].” (R.
175 at 16; R. 650 at 8.)
Before trial, the defendants filed several motions, three of
which are involved in this appeal.
First, Maggard and Bell moved to sever their trial from
that of Jackson and Neeley.
Second, Jackson moved to bifurcate the substantive alle‐
gations against him in the indictment (that he participated in
the drug conspiracy and that he distributed methampheta‐
mine) from the sentencing‐enhancement allegation against
him (that his distribution of methamphetamine resulted in
Jessie’s death). In so doing, Jackson sought to prevent the
government from introducing evidence related to his wife’s
death, claiming that this evidence would be unduly prejudi‐
cial.
Finally, Maggard, Bell, and Neeley moved to suppress
the government’s wiretap evidence.
The district court denied each of these motions, and the
defendants proceeded to a joint trial. At trial, Bell chose to
represent himself with standby counsel present; the other
defendants were represented by counsel.
After a ten‐day trial, the jury convicted the defendants of
all charges. The judge then sentenced Maggard, Bell, and
Jackson to aggregate terms of life imprisonment followed by
ten years of supervised release and Neeley to an aggregate
term of 264 months’ imprisonment followed by five years of
supervised release. This appeal followed.
6 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
II. ANALYSIS
On appeal, the defendants raise five arguments. Three of
their arguments relate to the pretrial motions that the district
court denied, and two relate to the sufficiency of the evi‐
dence considered by the jury.
We begin with the defendants’ first three arguments: that
the district court abused its discretion by denying (1) Mag‐
gard, Bell, and Neeley’s motion to suppress the government’s
wiretap evidence, (2) Maggard and Bell’s motion for a sepa‐
rate trial, and (3) Jackson’s motion and subsequent objections
to suppress evidence related to his wife’s death.
We then turn to the defendants’ arguments related to the
sufficiency of the evidence: that the evidence presented to
the jury was insufficient to show that (1) Bell was involved in
the conspiracy and (2) Neeley supplied the methampheta‐
mine that killed Jessie. We discuss additional facts as neces‐
sary in each of these sections.
A. Admission of the Wiretap Evidence
Maggard, Bell, and Neeley first argue that the district
court erred by not suppressing evidence that the govern‐
ment obtained using a wiretap.1 As part of its investigation
of the methamphetamine conspiracy, the government twice
sought and obtained authorization from the district court to
intercept communications on Maggard’s telephones. In so
doing, it listed Maggard, Bell, and Neeley, among many oth‐
1 Because the government did not intercept Jackson’s communications,
he does not join the other defendants in this argument. Therefore, any
use of the shorthand “defendants” in this section of the analysis refers
only to Maggard, Bell, and Neeley.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 7
ers, as probable interceptees. Through this wiretap, the gov‐
ernment intercepted approximately 4000 telephone calls and
text messages, several of which it introduced as evidence at
trial.
Congress codified the “[p]rocedure for interception of
wire, oral, or electronic communications” in 18 U.S.C. § 2518.
Among several other requirements, § 2518(1)(c) requires the
government’s application for electronic or wire surveillance
to provide a “full and complete statement as to whether or
not other investigative procedures [1] have been tried and
failed or [2] why they reasonably appear to be unlikely to
succeed if tried or [3] to be too dangerous.” This is known as
the “necessity requirement,” and it obligates the government
in its application for a wiretap to demonstrate that it has
considered other methods of investigation and to explain
why those methods have proven inadequate for one or more
of the three listed reasons. United States v. Mandell, 833 F.3d
816, 821 (7th Cir. 2016).
“Despite its name, the necessity requirement ‘was not in‐
tended to ensure that wiretaps are used only as a last resort
in an investigation, but rather that they are not to be routine‐
ly employed as the initial step in a criminal investigation.’”
Id. (quoting United States v. McLee, 436 F.3d 751, 762–63 (7th
Cir. 2006)); see also United States v. Fudge, 325 F.3d 910, 919
(7th Cir. 2003) (holding that the “evil we are trying to avoid”
in these cases is the “routine use of wiretaps as an initial step
in the investigation”). Accordingly, the government’s burden
in applying for a wiretap “is not great,” and the “require‐
ment of exhausting ‘other investigative procedures’ prior to
obtaining a wiretap is ‘reviewed in a practical and common‐
8 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
sense fashion.’” McLee, 436 F.3d at 763 (quoting United States
v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995)).
When a district court conducts its common‐sense review
of the government’s application for a wiretap, the statute ex‐
plicitly requires it to consider the government’s “full and
complete statement” on necessity. See 18 U.S.C. § 2518(3)(c);
see also Mandell, 833 F.3d at 821 (“The necessity requirement
binds judges too … .”). This means that, before granting
such an application, the court must affirmatively “deter‐
mine[] on the basis of the facts submitted by the applicant”
that “normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c). If the
court concludes that the government has made this showing
(and that all of the statute’s other requirements have been
met), then the court may grant the government’s application.
Here, to comply with the statute’s necessity requirement,
the government described in detail the investigative tech‐
niques that it either had already attempted or had ruled out
for various reasons. The government further explained in
affidavits supporting its applications why these traditional
investigative techniques had proven unsuccessful or had
been ruled out.
The court granted the government’s applications, deter‐
mining, among other things, that the government had shown
that a wiretap was statutorily necessary. The defendants
claim that this was an error. We review the district court’s
determination of the statute’s necessity requirement for
abuse of discretion. Mandell, 833 F.3d at 821.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 9
In claiming that the district court erred, the defendants
first quibble with the language that the court used in its or‐
ders granting the government’s applications. The court’s lan‐
guage in those orders tracked the language of the statute.
For example, the court concluded that the government had
established that “normal investigative procedures have been
tried and have failed, reasonably appear to be unlikely to
succeed if tried, or are too dangerous to employ.” (R. 608‐3 at
3; R. 608‐6 at 4.) The defendants claim that the district court’s
use of this “conclusory language” without further exposition
“reduced [the court’s] statutory burden” and was facially in‐
sufficient. (Appellants’ Br. at 24–25.)
We disagree. In asserting this argument, the defendants
confuse the statutory requirements for the government’s
wiretap application (which require the applicant to provide a
“full and complete statement” explaining why a wiretap is
necessary) with the requirements for a district court’s lan‐
guage in an order granting such an application (which do not
demand the same “full and complete statement”). Compare
18 U.S.C. § 2518(1), with 18 U.S.C. § 2518(3). The defendants’
confusion is best exemplified by their citation to United States
v. Castillo‐Garcia, a Tenth Circuit case discussing the re‐
quirement that wiretap applications not use “generalities[] or
statements in the conclusory language of the statute” but
saying nothing about the requirements of the court’s order.
117 F.3d 1179, 1188 (10th Cir. 1997), overruled on other grounds
by United States v. Ramirez‐Encarnacion, 291 F.3d 1219 (10th
Cir. 2002).
Contrary to the defendants’ assertion, the “full and com‐
plete” statement requirement, which the statute imposes on
the government’s wiretap applications, does not apply to the
10 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
language of the court’s orders granting those applications.
Instead, all that is required of a court’s language in granting
an application is a determination “on the basis of the facts
submitted by the applicant” that the statute’s requirements
have been met. 18 U.S.C. § 2518(3)(c).2 The district court’s
orders here, which made such determinations, were there‐
fore facially sufficient.
Alternatively, the defendants argue that the government’s
applications and affidavits did not establish statutory neces‐
sity. They thus contend that the district court abused its dis‐
cretion by granting those applications.
As mentioned above, when reviewing a district court’s
finding of necessity, we typically defer to that court, which is
in the best position to gauge the government’s true need for
the wiretap. See Mandell, 833 F.3d at 821. In so reviewing, we
“look at each case individually, considering the practicalities
of each investigation and using our good reason and com‐
mon sense.” United States v. Campos, 541 F.3d 735, 749 (7th
Cir. 2008). We will affirm a district court’s finding of necessi‐
ty under § 2518(3)(c) so long as “there exist[ed] a factual
predicate [for that finding] in the affidavit.” United States v.
Goodwin, 496 F.3d 636, 640 (7th Cir. 2007) (quoting United
States v. Zambrana, 841 F.2d 1320, 1330 (7th Cir. 1988)).
Here, the government’s affidavits revealed that the gov‐
ernment was not trying to use a wiretap as its initial investi‐
gative tactic. Rather, the government’s first affidavit dis‐
2 18 U.S.C. § 2518 discusses additional, technical requirements of a
court’s order granting a wiretap. But the defendants do not challenge the
court’s orders here on any of these technical grounds.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 11
closed in detail the many other investigative techniques that
the government had employed or had ruled out in its inves‐
tigation of the defendants’ methamphetamine conspiracy.
And the same is true of the government’s second affidavit,
which divulged in even greater detail the investigative ef‐
forts that the government had considered. These efforts in‐
cluded the use of (1) confidential sources, (2) undercover
agents, (3) grand jury subpoenas and immunity grants, (4)
search warrants, (5) pen registers and toll records, and (6)
physical surveillance. The affidavits further explained, again
in detail, why each of these methods either had proven inef‐
fective or had been ruled out.
For instance, the government’s affidavits listed six differ‐
ent confidential sources that the government had used in its
investigation. And for each of these sources, the government
meticulously described why that source’s cooperation had
“not accomplish[ed] the [government’s enumerated] investi‐
gative objectives.” (R. 608‐2 at 29, 30; R. 608‐5 at 22, 23, 24,
25, 26, 27.)
Similarly, the government’s affidavits explained in detail
the government’s decisions to forgo the use of undercover
agents, grand jury subpoenas, and immunity grants. Because
its confidential informants had told it “that Maggard would
not sell methamphetamine to someone whom he [did] not
know because of a concern that the unknown individual
might be an undercover law enforcement officer or a confi‐
dential informant,” the government chose not to employ un‐
dercover agents. (R. 608‐2 at 33; R. 608‐5 at 28.) Likewise, be‐
cause the government had not yet identified all of the con‐
spiracy’s participants and “because the granting of … im‐
munity [for only identified conspirators] might foreclose
12 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
prosecution of the most culpable members of this conspira‐
cy,” the government forwent the use of grand jury subpoe‐
nas and immunity grants. (R. 608‐2 at 34; R. 608‐5 at 31.)
The government’s justifications for its decision not to use
search warrants were equally as detailed. The government
disclosed that it had “conducted physical surveillance” of
Maggard’s residence and that it had “considered obtaining
and executing a search warrant at this residence.” (R. 608‐2
at 34; 608‐5 at 31.) But for several reasons—including that (1)
“[t]he FBI [did] not have any current source of information
that [could] convey information concerning the delivery of
methamphetamine to Maggard,” (2) “[e]xecuting search
warrants would alert the subjects of the investigation and
thwart any opportunity to learn the identities of more co‐
conspirators,” and (3) “it [was] highly unlikely that Maggard
and all of his principal associates would be present at any
one location upon the execution of the search warrant”—the
government believed that search warrants would be ineffec‐
tive in its investigation. (R. 608‐2 at 35.) In the government’s
affidavit in support of its second application, the govern‐
ment described in even greater detail the additional surveil‐
lance it had conducted and why it remained convinced that
search warrants would not be helpful to its investigation.
The same is true of the government’s explanations for
why pen registers and toll records had not adequately aided
its investigation. In its affidavits, the government first de‐
scribed the “significant limitations” of these investigative
tools—namely, that they “do not provide ‘real time’ infor‐
mation regarding the contact” and that they “cannot estab‐
lish the actual identity of the speakers or the subject matter
of their conversation.” (R. 608‐2 at 36; R. 608‐5 at 34.) The
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 13
government then explained in detail why those limitations
had impeded its investigation of the defendants’ metham‐
phetamine conspiracy.
Finally, the government’s affidavits outlined the govern‐
ment’s extensive use of physical surveillance, which includ‐
ed “roving surveillance” outside Maggard’s and others’ resi‐
dences as well as “physical surveillance” of Maggard him‐
self. (R. 608‐2 at 36–38; R. 608‐5 at 35–37). Stating that “[t]he
nature of [Maggard’s] neighborhood render[ed] sustained
surveillance impractical” and that “introducing a surveil‐
lance vehicle into the neighborhood, which residents [had]
never seen before, would attract attention and may alert
[Maggard] of the ongoing investigation,” the government
concluded that this traditional method of investigation
would “not accomplish [its] investigative objectives.” (R.
608‐2 at 36–38; R. 608‐5 at 36–38.)
As the above details illustrate, the government’s thor‐
ough affidavits “easily established” the requisite factual
predicate to support the district court’s finding that a wire‐
tap was statutorily necessary. See United States v. Durham, 766
F.3d 672, 680 (7th Cir. 2014). Thus, the court did not abuse its
discretion in denying the defendants’ motion to suppress.
B. Maggard and Bell’s Motion for a Separate Trial
Maggard and Bell next contend that the district court
erred by denying their motion to sever their trial from that of
Jackson and Neeley. Unlike Jackson and Neeley, Maggard
and Bell were not charged with distribution resulting in
death. So before their trial, they argued for severance, claim‐
ing that any evidence of Jessie’s death—which the govern‐
ment would have to present to convict Jackson and Neeley—
14 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
would unduly prejudice a jury against them. See Fed. R.
Crim. P. 14(a) (“If the joinder of … defendants in … a consol‐
idation for trial appears to prejudice a defendant or the gov‐
ernment, the court may … sever the defendants’ trials, or
provide any other relief that justice requires.”).
The district court denied that motion, so the defendants
proceeded to a joint trial. Importantly, Maggard and Bell did
not renew their motion for severance at the close of evidence
despite having an opportunity to do so.
Ordinarily, we review a district court’s denial of a de‐
fendant’s motion to sever for abuse of discretion. United
States v. Cardena, 842 F.3d 959, 980 (7th Cir. 2016). “A defend‐
ant, however, waives the issue if he does not renew his sev‐
erance motion at the close of evidence.” Id.; see also United States
v. Brown, 870 F.2d 1354, 1360 (7th Cir. 1989) (“A motion for
severance is typically waived if it is not renewed at the close
of evidence, primarily because it is then that any prejudice
which may have resulted from the joint trial would be ascer‐
tainable.”). And a “waiver of this nature” usually “pre‐
clude[s] appellate review of any kind.” United States v. Al‐
viar, 573 F.3d 526, 538 (7th Cir. 2009).
Maggard and Bell do not dispute that they failed to re‐
new their motion at the close of evidence. Rather, they claim
that their failure to do so—which they agree would typically
result in a waiver—should be excused because renewal
would have been futile. We have held that futility can excuse
a defendant’s failure to renew a motion to sever: “when the
defendant is able to show that refiling the motion [to sever]
would be useless, he may be excused from engaging in what
is then a futile exercise.” Brown, 870 F.2d at 1360.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 15
To support their argument for futility, Maggard and Bell
contend that the district court “had been adequately ap‐
prised of the objection and motion well before [t]rial and at
the time that the evidence regarding the death of [Jessie] was
presented. Moving again at the end of the case would not
have made a difference. The evidence was presented as ex‐
pected with no surprises.” (Appellants’ Br. at 40–41.) And
much of that is true: Maggard and Bell filed a pretrial mo‐
tion to sever, and they lodged a continuing objection during
trial based on Federal Rule of Evidence 403—that the evi‐
dence of Jessie’s death would be unduly prejudicial. And the
district court considered and rejected these arguments every
time they were raised.
But did these efforts necessarily render useless a renewal
of the motion to sever at the close of evidence? We think not.
We have held that a defendant’s timing for filing a mo‐
tion to sever is “important because the close of evidence is
the moment when the district court can fully ascertain
whether the joinder … was unfairly prejudicial to the de‐
fendant’s right to a fair trial.” United States v. Rollins, 301 F.3d
511, 518 (7th Cir. 2002). Although a court before trial can at‐
tempt to predict whether the defendants will be prejudiced
by a joint trial, it cannot “fully ascertain” the prejudicial im‐
pact until all of the trial evidence has actually been admitted.
Id. Thus, a renewed motion at the close of evidence is essen‐
tial in these cases unless the court explicitly indicates that
such a renewed motion will not be entertained.
Here, Maggard and Bell had a clear opportunity to renew
their motion to sever: at the close of evidence, the court
asked Maggard’s counsel and Bell (who was representing
himself) if there was “anything further that needs to be
16 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
raised with the Court at this point,” or if there were “any
motions that need to be made.” (R. 993 at 169.) They re‐
sponded by discussing other motions, but they did not re‐
new their motion to sever.
Admittedly though, this case is not as clear as some of
our other decisions in which we have rejected a defendant’s
excuse for not renewing a motion to sever. For example, in
Brown, the district court initially denied the defendant’s mo‐
tion to sever but also granted the defendant leave to refile it.
870 F.2d at 1360. We held that the court’s explicit invitation to
refile foreclosed any argument that refiling would have been
futile. Id. Similarly, in United States v. Phillips, after previous‐
ly denying a defendant’s pretrial motion to sever, the district
court specifically asked the defendant if he wanted to renew
that motion. 239 F.3d 829, 838 (7th Cir. 2001). As in Brown, we
concluded that the court’s specific invitation to renew the
previously denied motion to sever defeated the defendant’s
futility argument. Id.
Here, unlike in those cases, the district court did not ex‐
plicitly grant Maggard and Bell leave to refile their motion to
sever or ask them if they wished to renew that specific mo‐
tion. Instead, the court denied Maggard and Bell’s pretrial
motion outright and asked at the close of evidence if the de‐
fendants had any motions to file without specifically refer‐
ring to a renewed motion to sever.
That being said, we don’t think those differences warrant
a different result. If our rule requiring defendants to renew
severance motions at the close of evidence is to have any
teeth, we must enforce it except in rare cases where the court
makes abundantly clear that filing such a motion would be
useless. United States v. Taglia, 922 F.2d 413, 417 (7th Cir.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 17
1991). This is not that case. Maggard and Bell waived their
severance arguments by failing to renew their motion at the
close of evidence despite having an opportunity to do so.
At any rate, even absent a waiver, the court didn’t abuse
its discretion in denying Maggard and Bell’s motion to sever.
Federal Rule of Criminal Procedure 8(b) broadly permits the
joinder of criminal defendants “if they are alleged to have
participated in the same act or transaction, or in the same
series of acts or transactions, constituting an offense or of‐
fenses.” The federal system prefers defendants who are in‐
dicted together also to be tried together. United States v. Souf‐
front, 338 F.3d 809, 828 (7th Cir. 2003). This preference is es‐
pecially strong with coconspirators. Alviar, 573 F.3d at 539
(“There is a strong preference that co‐conspirators be jointly
tried, particularly when they were indicted together.”).
Joint trials “promote efficiency” and “serve the interests
of justice by avoiding the scandal and inequity of incon‐
sistent verdicts.” Zafiro v. United States, 506 U.S. 534, 537
(1993) (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)).
But they can also prejudice the defendants who are tried to‐
gether. Id. Because district courts are better positioned to
balance the benefits of a joint trial with the potential preju‐
dices that come with it, we generally leave Rule 14 severance
decisions to the district courts’ discretion. United States v.
Moore, 115 F.3d 1348, 1361–62 (7th Cir. 1997). “[T]he defend‐
ant bears an extremely difficult burden of showing on ap‐
peal that the district court abused its discretion” by denying
a severance motion. Id. (quoting United States v. Moya‐Gomez,
860 F.2d 706, 754 (7th Cir. 1988)).
To meet this burden, Maggard and Bell must show that
the district court’s decision caused them “actual prejudice,”
18 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
which is necessarily something more than that they would
have had a better chance for an acquittal if granted a sepa‐
rate trial. Souffront, 338 F.3d at 828. Actual prejudice instead
focuses on fairness: a reversal may be justified if the district
court’s denial of severance deprived Maggard and Bell of
their right to a fair trial. Rollins, 301 F.3d at 518; see also Zafiro,
506 U.S. at 539 (“[A] district court should grant a severance
under Rule 14 only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defend‐
ants, or prevent the jury from making a reliable judgment
about guilt or innocence.”).
Here, Maggard and Bell had a fair trial. The government
presented a considerable amount of evidence unrelated to
Jessie’s death showing that Maggard and Bell had committed
the crimes to which they were individually charged.3 And
this evidence would have been admissible against Maggard
and Bell even if the district court had granted them a sepa‐
rate trial. See United States v. Freland, 141 F.3d 1223, 1227 (7th
Cir. 1998) (concluding that “sufficient evidence to support
convictions” counted against a finding of prejudicial join‐
der).
Moreover, the court took significant steps to ensure that
the joint trial would be fair for all of the defendants. For in‐
stance, the court instructed the jury that, “[e]ven though the
defendants are being tried together, you must consider each
defendant and the evidence concerning that defendant sepa‐
rately as to each charge. Your decision concerning one de‐
3 We discuss the sufficiency of the government’s evidence against Bell
below.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 19
fendant, whether it is guilty or not guilty, should not influ‐
ence your decision concerning any other defendant.” (R. 796
at 8.) Furthermore, the court’s instructions made clear that
Jessie’s death pertained only to charges against Jackson and
Neeley and not to any of the other defendants. The court al‐
so instructed the jury that it could hold a defendant liable for
Jessie’s death only if “the defendant you are considering was
part of the distribution chain that led to her death.” (R. 796 at
36.)
Rule 14 does not require severance in every joint trial in
which there is a risk for prejudice; “rather, it leaves the tai‐
loring of the relief to be granted, if any, to the district court’s
sound discretion.” Zafiro, 506 U.S. at 539. And as the Su‐
preme Court has held, less drastic measures than severance,
“such as limiting instructions, often will suffice to cure any
risk of prejudice.” Id.; see also United States v. Warner, 498 F.3d
666, 702 (7th Cir. 2007) (holding that the district court’s use of
limiting instructions and other measures defused any risk of
prejudice). Here, the court’s jury instructions did just that:
they helped cure any risk of prejudice resulting from the
joint trial.
“In all but the ‘most unusual circumstances,’ the risk of
prejudice arising from a joint trial is ‘outweighed by the
economies of a single trial in which all facets of the crime can
be explored once and for all.’” Alviar, 573 F.3d at 539 (quot‐
ing United States v. Velasquez, 772 F.2d 1348, 1352 (7th Cir.
1985)). This case does not present such unusual circumstanc‐
es warranting severance. Even if Maggard and Bell had not
waived their argument regarding severance, the court did
not abuse its discretion in denying their motion to sever.
20 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
C. Jackson’s Objections to Evidence of His Wife’s Death
In a similar vein, Jackson also contests the district court’s
handling of the government’s evidence surrounding Jessie’s
death. Before and during trial, Jackson sought to prevent the
government from introducing evidence related to his wife’s
death. But the court denied his pretrial motion and his objec‐
tions at trial. Jackson now contends that the court erred by
denying his efforts to suppress that evidence.
Federal Rule of Evidence 403 permits a court to “exclude
relevant evidence if its probative value is substantially out‐
weighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative ev‐
idence.” “The amount of prejudice that is acceptable varies
according to the amount of probative value the evidence
possesses.” United States v. Boros, 668 F.3d 901, 909 (7th Cir.
2012). The greater the evidence’s probative value, the more
willing we are to tolerate a greater risk of prejudice. Id. We
give “considerable deference” to a district court’s evidentiary
decisions under Rule 403 and will overturn only for abuse of
discretion. Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 440
(7th Cir. 2009). 4
4 The government argues that we should employ the more stringent
plain‐error standard of review here rather than an abuse‐of‐discretion
standard because Jackson’s argument is “almost entirely new on appeal.”
(Appellee’s Br. at 32.) In so arguing, the government claims that Jackson’s
motion to bifurcate and his (and the other defendants’) continuing objec‐
tion at trial pertained only to the admission of the fact of Jessie’s death
and not to the admission of the details surrounding her death. The gov‐
ernment further points out that the defendants did not explicitly object at
(continued…)
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 21
To convict Jackson of distribution of methamphetamine
resulting in death, the government necessarily had to present
evidence showing that Jessie in fact died because of that dis‐
tribution. And Jackson concedes as much on appeal.
Jackson, however, challenges the district court’s admis‐
sion of the government’s evidence depicting the details sur‐
rounding Jessie’s death. Specifically, Jackson challenges as
unduly prejudicial and unnecessary the government’s evi‐
dence that he (1) took and sent photographs of Jessie, (2) had
sex with her, (3) refused to call an ambulance for her, and (4)
played video games instead of assisting her, all while Jessie
was suffering from an overdose.
We agree that some of this evidence was prejudicial; in‐
deed, Jackson’s behavior during his wife’s death was deplor‐
able. But when viewed in context, we also think that this ev‐
idence was highly probative. See Boros, 668 F.3d at 909
(“[B]oth probative value and prejudice must be determined
in context.”). And we disagree that the probative value of
this evidence was outweighed by any prejudice that it may
have caused.
As discussed above, the government had to prove that
Jessie died because she consumed methamphetamine that
(…continued)
trial to the admission of these details. Jackson counters that the continu‐
ing objection to the admission of evidence of Jessie’s death implicitly en‐
compassed an objection to the admission of evidence of the details sur‐
rounding her death. Because we think Jackson’s argument fails under
even the less‐stringent abuse‐of‐discretion standard, we decline to decide
whether the plain‐error standard should apply here or whether Jackson’s
argument could survive that standard.
22 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
Jackson and Neeley distributed. Several witnesses testified
that Neeley sold Jackson a potent batch of methampheta‐
mine on April 5, 2014, the day that Jessie overdosed. Thus,
the government had to show that it was this potent meth‐
amphetamine—as opposed to some other methampheta‐
mine—that killed Jessie.
The government elicited most of the evidence that Jack‐
son contests from four witnesses: Booker, Day, Hadley, and
Rodgers. The combined testimony of these witnesses was
critical to the government’s case because these witnesses in‐
teracted with Jessie and Jackson at different times on April 5,
and together, they could tell a nearly complete story of that
day. Because these witnesses arrived at and left Jackson’s
home at varying points throughout the day, the details elicit‐
ed during their testimony—which Jackson argues were un‐
necessary and unduly prejudicial—were therefore necessary
to weave the witness’s accounts into a unified depiction of
the events that led to Jessie’s death.
For instance, Booker testified that she and Day had been
living at Jackson’s home on and before April 5, that they had
left the home early that day, and that they had seen Neeley’s
car parked in the driveway later that morning. She further
testified that she had witnessed Jackson purchase metham‐
phetamine from Neeley on several occasions and that Jack‐
son and Neeley did not typically interact for any reason oth‐
er than for the sale of methamphetamine. She finally testified
that Jackson had told her that Neeley’s methamphetamine
had caused Jessie’s overdose. Day’s testimony corroborated
Booker’s. These witnesses were thus essential to prove that it
was Neeley’s methamphetamine that caused Jessie’s death.
But because they were not at Jackson’s home for key portions
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 23
of that evening, the government had to use other witnesses
to fill in the gaps.
Hadley and Rodgers, who had visited Jackson’s home
multiple times on April 5 while Booker and Day were not
present, helped complete the story of that evening. Hadley’s
testimony that Jackson had sex with Jessie while she was
overdosing was important to show what Hadley and Rodg‐
ers witnessed before they first left Jackson’s home. And
Rodgers’s testimony about Jackson’s refusal to call an ambu‐
lance when she and Hadley finally returned to Jackson’s
home later that evening explained why Rodgers had to call
for help and how Jessie eventually made it to the hospital.
Similarly, Booker’s and Day’s testimony about Jackson’s
photograph of Jessie helped convey why Booker and Day
returned to Jackson’s home on April 5—because they were
justifiably worried about Jessie. And their testimony about
Jackson playing video games revealed what they first saw
when they arrived to help Jessie.
The details of the combined testimony of these witnesses
also helped confirm that the methamphetamine that killed
Jessie came from Jackson and Neeley. For example, the gov‐
ernment’s evidence of Jackson’s peculiar behaviors on April
5—including that he played video games and had sex with
Jessie during her overdose—illustrated Jackson’s mindset
that day and suggested that he too had consumed a dose of
strong methamphetamine. Because these witnesses also testi‐
fied that Neeley was Jackson’s principal source for metham‐
phetamine, the details helped connect Neeley’s metham‐
phetamine to Jackson. This brought the government one step
closer to connecting that same methamphetamine to Jessie.
24 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
Likewise, the photograph of Jessie that Jackson sent to
Booker, which Jackson sent in conjunction with a text mes‐
sage saying that he thought Jessie had “overduckied,” fur‐
ther confirmed that Neeley’s methamphetamine killed Jessie.
(R. 986 at 146–47.) Because Booker testified that Jackson re‐
ferred to taking capsules of methamphetamine as “spun‐
ducky” and because Neeley sold Jackson capsulated meth‐
amphetamine on April 5, the photograph of Jessie and its
corresponding text message tended to show that it was
Neeley’s methamphetamine that caused Jessie’s overdose.
(Id. at 129, 146–47.)
In sum, although the details of April 5 are appalling, we
think they were necessary—especially when viewed in con‐
text—to tell the full story of that day and to connect Jessie’s
death to the methamphetamine that Jackson and Neeley dis‐
tributed. The district court did not abuse its discretion in
admitting this evidence.
D. Bell’s Involvement in the Conspiracy
Bell next claims that his relationship with Maggard—the
only defendant with whom Bell concedes that he had any
illegal dealings—was far more limited than the government
portrayed at trial. Bell describes his relationship with Mag‐
gard as merely that of a buyer and seller: although he admits
that he purchased narcotics from Maggard “on a regular ba‐
sis,” he claims that he was not a party to any larger conspira‐
torial arrangement. (Appellants’ Br. at 36.) He thus contends
that the government’s trial evidence was insufficient to es‐
tablish that he was involved in the methamphetamine con‐
spiracy at all.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 25
The defendant bears a heavy burden when arguing that a
jury based its guilty verdict on insufficient evidence. United
States v. Burns, 843 F.3d 679, 684 (7th Cir. 2016). In fact, we’ve
often described this burden as “nearly insurmountable.”
E.g., id. (quoting United States v. Dessart, 823 F.3d 395, 403
(7th Cir. 2016)). To prevail, the defendant “must convince us
that even after viewing the evidence in the light most favor‐
able to the prosecution, no rational trier of fact could have
found him guilty beyond a reasonable doubt.” Dessart, 823
F.3d at 403 (quoting United States v. Warren, 593 F.3d 540, 546
(7th Cir. 2010)). In other words, we will reverse a conviction
for insufficient evidence only “‘when the record contains no
evidence, regardless of how it is weighed, from which the
trier of fact could find guilt beyond a reasonable doubt’ as to
each element of the crime.” United States v. Ajayi, 808 F.3d
1113, 1119 (7th Cir. 2015) (emphasis added) (quoting United
States v. Domnenko, 763 F.3d 768, 772 (7th Cir. 2014)).
To support a conviction for conspiracy, the government
must prove that “(1) two or more people agreed to commit
an unlawful act, and (2) the defendant knowingly and inten‐
tionally joined in the agreement.” United States v. Thomas, 845
F.3d 824, 830 (7th Cir. 2017) (quoting United States v. Vaughn,
722 F.3d 918, 928 (7th Cir. 2013)). Where, as here, a drug dis‐
tribution conspiracy is charged, the analysis is somewhat
more complex.
Because the sale of drugs is itself a substantive crime that
necessarily involves multiple parties, the parties’ agreement
to complete that sale does not by itself also constitute a con‐
spiracy. See United States v. Avila, 557 F.3d 809, 815 (7th Cir.
2009) (“[T]he sale of drugs, without more, does not consti‐
tute a conspiracy because the sale itself is a substantive
26 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
crime.”). Instead, to prove a distribution conspiracy, “the
government must offer evidence establishing an agreement
to distribute drugs that is distinct from evidence of the
agreement to complete the underlying drug deals.” United
States v. Johnson, 592 F.3d 749, 755 (7th Cir. 2010). The parties’
agreement to distribute may be (and often is) implicit, and
the government can prove the existence of an agreement
with either direct or circumstantial evidence. Thomas, 845
F.3d at 830.
Bell claims that the government did not meet its burden
because it established only that Maggard and Bell were in‐
volved in a buyer‐seller relationship and not that they
agreed to engage in any further illegal activity. But that is
simply not true. The jury heard both direct and circumstan‐
tial evidence of Bell’s involvement in the distribution con‐
spiracy.
As for direct evidence, the government introduced nu‐
merous text messages and audio files of calls between Mag‐
gard and Bell, which revealed that the two worked together
to procure specific amounts of methamphetamine from
Maggard’s suppliers for some of Bell’s customers. This evi‐
dence exposed Bell’s role as a middleman in these transac‐
tions: he collected money from his customers, exchanged it
with Maggard for a predetermined amount of methamphet‐
amine, and then distributed that methamphetamine to the
customers. Other messages and calls showed that Maggard
and Bell contacted each other to arrange additional drug
transactions and to make sure that neither had drawn any
attention from law enforcement. Finally, the government’s
direct evidence revealed that, at least on one occasion, Bell
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 27
joined Maggard on a trip to collect methamphetamine from
one of Maggard’s suppliers.
And as for circumstantial evidence, the government
questioned witnesses about Bell’s relationship with Mag‐
gard. These witnesses testified that Maggard often “fronted”
drugs to Bell on credit and that the two had been involved in
repeated dealings. “The fronting of large quantities of drugs,
combined with evidence of repeated transactions and a pro‐
longed relationship between the purported members of the
conspiracy, supports an inference that there was an agree‐
ment to distribute [methamphetamine], distinct from any
underlying buy‐sell relationship.” United States v. Villasenor,
664 F.3d 673, 680 (7th Cir. 2011). Thus, the government’s cir‐
cumstantial evidence also tended to show that Bell was in‐
volved in the conspiracy.
“All that is necessary to establish a drug distribution con‐
spiracy is an understanding related to the subsequent distri‐
bution of narcotics.” Avila, 557 F.3d at 816. Based on the gov‐
ernment’s substantial direct and circumstantial evidence, we
think such an understanding was obviously present here.
Despite the arguments to the contrary, Bell was not merely
an oblivious buyer in this methamphetamine‐distribution
conspiracy; he was an active participant in it.
E. Neeley’s Involvement in Jessie Jackson’s Death
Neeley also makes a sufficiency‐of‐the‐evidence argu‐
ment. Because the government sought to enhance Neeley’s
sentence because her distribution of methamphetamine
caused Jessie’s death, it had to prove that Neeley distributed
methamphetamine to Jessie and that Jessie’s consumption of
that methamphetamine was a but‐for cause of her death. See
28 Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832
United States v. Burrage, 134 S. Ct. 881, 887–91 (2014).5 Neeley
correctly concedes that some methamphetamine killed Jes‐
sie, but Neeley argues that the government’s evidence was
“woefully insufficient” to show that she supplied Jessie with
that methamphetamine. (Appellants’ Br. at 50.) Instead, she
contends that Country Squire Lakes (the neighborhood
where Jessie lived) was a “high crime area with a lot of
methamphetamine activity” and that the methamphetamine
that Jessie consumed on April 5, 2014 (the day she over‐
dosed) could have come from a number of other sources in
the neighborhood. (Id. at 48.)
As discussed above, Neeley faces an uphill battle in mak‐
ing this sufficiency‐of‐the‐evidence challenge. See, e.g., Burns,
843 F.3d at 684 (discussing the standard of review with suffi‐
ciency‐of‐the‐evidence challenges). We need not repeat our
standard of review here, but we stress again that Neeley’s
burden is “nearly insurmountable.” Id.
Neeley’s argument on appeal is riddled with speculation.
The government’s evidence at trial, on the other hand, was
based in fact. The government presented witnesses who tes‐
tified that Neeley was Jackson’s regular (and possibly only)
supplier of methamphetamine, that they had seen Neeley
sell drugs to Jackson in the past, that Jackson had told them
that Neeley provided the drugs that he and Jessie consumed
on April 5, and that they had seen Neeley’s car at Jackson’s
residence that morning. Moreover, the toxicology report re‐
5 This enhancement was also applied against Jackson. But because he
does not raise a sufficiency‐of‐the‐evidence claim associated with this
enhancement, the analysis in this section is limited to Neeley’s claim.
Nos. 16‐1776, 16‐1777, 16‐1780, 16‐1832 29
vealed that the methamphetamine that killed Jessie was ex‐
tremely potent. Witnesses testified that Jackson had told
them that he had purchased a potent dose of capsulated
methamphetamine from Neeley on April 5 and that he and
Jessie had consumed it shortly before Jessie began suffering
from her fatal overdose.
Far from being “woefully insufficient,” when we view
this evidence (along with the rest of the government’s evi‐
dence) in the light most favorable to the government, we
think it’s clear that Neeley supplied the methamphetamine
that killed Jessie. Neeley’s arguments to the contrary are un‐
availing.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgments of conviction regarding defendants‐appellants
Maggard, Bell, Jackson, and Neeley.