In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐2342 & 16‐2375
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTWON WILLIS and ERICKA SIMMONS,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14‐cr‐83 — Jon E. DeGuilio, Judge.
____________________
ARGUED FEBRUARY 23, 2017 — DECIDED AUGUST 18, 2017
____________________
Before POSNER, EASTERBROOK, and MANION, Circuit
Judges.
MANION, Circuit Judge. Antwon Willis and Ericka Sim‐
mons were convicted of conspiracy to distribute 100 grams
or more of heroin and sentenced to 235 months’ and 108
months’ imprisonment, respectively. They appeal their con‐
victions, claiming there was an impermissible variance from
the indictment. They also claim the jury pool failed to in‐
clude a fair cross‐section of their community because only
2 Nos. 16‐2342 & 16‐2375
one of the 48 members of the venire was black. Simmons
also challenges the district court’s jury instruction related to
the amount of heroin involved in her offense. Finally, Sim‐
mons argues that the district court erred in enhancing her
sentencing offense level for possession of a gun during the
commission of a drug offense. We affirm.
I.
While this appeal concerns legalistic quibbles, the facts
underlying this case reveal the dark underbelly of the world
of heroin addicts. Over the course of a week, a jury heard
from scores of witnesses: from the doctor’s son—a former
Big Ten soccer player who turned to heroin after tearing his
ACL and becoming addicted to his opioid‐based prescrip‐
tion pain killer—to the young couple with good‐paying un‐
ion jobs who tried heroin one night at a party only to de‐
velop a hundred‐dollar‐plus‐a‐day addiction that left them
overdosing in their car and later serving time in prison. Un‐
fortunately, as the law enforcement officers who also testi‐
fied confirmed, these realities have become all too common‐
place.
According to witnesses, Antwon Willis and Ericka Sim‐
mons were behind much of the heroin making its way into
Michigan City and surrounding communities in the North‐
ern District of Indiana. They were tried jointly on one count
of conspiracy to distribute more than 100 grams of heroin.
Over the course of the week‐long trial, the jury heard from
a total of twenty witnesses, including police officers and
DEA agents, former heroin addicts who had purchased her‐
oin from Willis and Simmons, and Simmons herself—who
denied any knowledge of Willis’s drug‐dealing. Because this
appeal comes to us following a full trial, we present the facts
Nos. 16‐2342 & 16‐2375 3
in the light most favorable to the government, drawing all
reasonable inferences from that evidence in the govern‐
ment’s favor. United States v. Campos, 541 F.3d 735, 742 (7th
Cir. 2008).
At trial, the jury heard testimony that Willis and Sim‐
mons met at a party in 2010 and began dating shortly there‐
after. They later moved in together in a house in Illinois.
While living in Illinois, Willis sold substantial quantities of
heroin to a variety of users. In the summer of 2010, law en‐
forcement officers arrested Willis after using a confidential
informant to purchase 50 grams of heroin from him. The in‐
formant testified about his relationship with Willis and ex‐
plained how Willis sold the heroin packaged in capsules
with each capsule containing about 1/10 gram of heroin.
Willis sold 14 capsules for $100, or at about $7 each. This
modus operandi would later lead law enforcement officers
to connect Willis with the heroin distributed in the Michigan
City, Indiana area.
Several heroin users from Michigan City also testified.
They told the jury that they had purchased heroin from Wil‐
lis or Simmons in both Illinois and Indiana. They explained
that they would text Willis when they wanted heroin and
Willis would direct them to meet him or Simmons, typically
in a parking lot. The sales often took place in cars with a
“toss over”: Willis or Simmons would toss over a cigarette
case filled with heroin and the buyer would toss over one
filled with cash. Several witnesses identified Simmons as the
woman they met at Willis’s direction. Additionally, Brittany
LeMond and her boyfriend Derrick Penwell—union boiler‐
makers—testified that they would call Willis to buy heroin
and then either Simmons or Willis would complete the sale
4 Nos. 16‐2342 & 16‐2375
in front of a Hammond, Indiana apartment complex where
the couple had moved in 2011.
Besides purchasing heroin outside the Indiana apart‐
ment complex, when LeMond and Penwell were working
out‐of‐state they wired money for the drugs via Moneygram
and Willis would send them heroin through the mail. Willis
directed LeMond and Penwell to send the money in Sim‐
mons’s name and Simmons retrieved the funds—$18,485 in
total. At the approximately $7 per gram price to which the
witnesses attested, the quantity of heroin involved in just
the Moneygram transactions easily exceeded the 100 grams
charged in the indictment.
Willis and Simmons later moved back to Illinois, living
together in a house on Henry Street in Lansing. In October
2014, after authorities connected the dots between Willis’s
operations in Illinois and the recent influx in northern Indi‐
ana of heroin‐filled capsules, officers arrested Willis. A
search of the Henry Street house revealed empty capsules, a
mixer, a box full of Dormin (which is a substance used to
“cut”—or dilute—heroin), and a vial containing heroin. In a
bedroom of the home were more Dormin bottles, a change
of address form with Simmons’s name, and more capsules.
Officers also recovered a handgun from a shelf in the bed‐
room closet.
Willis was later charged along with eight other individ‐
uals in a nine‐count indictment in the Northern District of
Indiana. Willis was named in four counts: one count of con‐
spiracy to distribute heroin and three counts of distribution.
Willis’s co‐defendants all pleaded out. The grand jury later
returned a superseding indictment naming only Willis and
Simmons and charging them with one count of conspiracy
Nos. 16‐2342 & 16‐2375 5
and five counts of distribution. (Simmons had not been
named in the original indictment.) Specifically, the indict‐
ment alleged:
“From an unknown date in 2009, up to and in‐
cluding October 2014, in the Northern District
of Indiana and elsewhere, Antwon Wil‐
lis … and Ericka Simmons … defendants
herein, knowingly and intentionally com‐
bined, conspired, confederated and agreed
with other persons known and unknown to
the grand jury, to commit one or more offenses
against the United States.”
The defendants moved to dismiss the distribution
counts, arguing those counts involved drug transactions in
Illinois and thus venue in the Northern District of Indiana
was improper. The government agreed and dismissed the
distribution counts, and then Willis and Simmons pleaded
not guilty and proceeded to trial solely on the conspiracy
count.
At the start of the jury selection process, only one of the
48 potential jurors appeared to be black. Willis’s attorney ar‐
gued that blacks were severely underrepresented in the
panel and asked to have the trial adjourned for a new panel
to be drawn. The district court denied the request.
At trial, in addition to the above evidence, Simmons tes‐
tified in her defense. She told the jury that she had never
sold drugs and that she did not know that Willis had sold
drugs; rather, she explained that she thought that he was in
the construction and home‐flipping business. Simmons also
6 Nos. 16‐2342 & 16‐2375
claimed that she had never delivered drugs or met the her‐
oin addicts who had identified her. While she had picked up
the funds sent via Moneygram, she had believed that money
was for home projects. Simmons admitted, though, that she
was with Willis on occasion when he would toss a cigarette
pack to people in another car and would receive one in re‐
turn. Still, she claimed she never knew there were drugs in‐
volved and never asked Willis what he was doing.
Willis did not call any witnesses in his defense. Instead,
his attorney presented a more novel argument—one that
made sense given the overwhelming evidence against him.
Willis’s attorney admitted that Willis was a drug dealer, but
argued that the jury must acquit him because the govern‐
ment had not charged Willis with distribution. Instead, he
was charged with conspiring to distribute heroin to “oth‐
ers,” namely the Indiana addicts. Claiming the addicts were
merely in a buy‐sell relationship with Willis, his attorney ar‐
gued that the government had failed to prove the conspir‐
acy charged in the indictment.
The government responded that several of the witnesses
testified that Willis knew they were reselling some of the
heroin and the jury could reasonably conclude they were co‐
conspirators. Alternatively, the government argued that,
even if the Indiana buyers weren’t co‐conspirators, the pros‐
ecution did not need to prove that Willis conspired with
them because the indictment allowed it to proceed on the
narrower theory that Willis had conspired with Simmons.
The district court agreed and instructed the jury as follows:
Count 1 of the Superseding Indictment
charges each defendant with conspiracy to
Nos. 16‐2342 & 16‐2375 7
distribute heroin. In order for you to find a de‐
fendant guilty of this charge, the government
must prove each of the following elements be‐
yond a reasonable doubt as to that defendant:
1. The conspiracy to distribute heroin ex‐
isted, as charged in the Superseding Indict‐
ment; and
2. The defendant in question knowingly
became a member of that conspiracy with an
intent to advance the conspiracy.
If you find from your consideration of all the
evidence that the government has proved each
of these elements beyond a reasonable doubt
as to a defendant, then you should find that
defendant guilty of this charge. If, on the other
hand, you find from your consideration of all
the evidence that the government has failed to
prove any one of these elements beyond a rea‐
sonable doubt as to a defendant, then you
should find that defendant not guilty of this
charge.
If you find there were two or more conspira‐
cies and a particular defendant was a member
of one or more of these conspiracies, you may
find that defendant guilty of Count 1 if you
further find that this proven conspiracy was
included within the conspiracy alleged in
Count 1. If, on the other hand, the proven con‐
spiracy is not, you must find the defendant not
guilty.
8 Nos. 16‐2342 & 16‐2375
The judge also instructed the jury that merely being in a
buy‐sell relationship is insufficient to establish a conspir‐
acy—even if the seller knew the buyer intended to resell the
drugs. The jury further received a “mere presence” instruc‐
tion explaining that merely being present at the scene of a
drug deal is insufficient to establish a conspiracy.
Additionally, Simmons and Willis were charged with
conspiring to sell at least 100 grams of heroin—a quantity
which increased the statutory sentencing range from 0‐20
years to 5‐40 years, 21 U.S.C. § 841(b)(1)(B)(i), 841(b)(1)(C).
Therefore, the jury was required to determine whether the
conspiracy involved 100 grams or more of heroin. The dis‐
trict court instructed the jury as follows:
The amount of heroin involved in a defend‐
ant’s offense includes the amount of heroin
that the defendant conspired to distribute
while the defendant was a member of the con‐
spiracy and the amount of heroin that the de‐
fendant’s co‐conspirators distributed in fur‐
therance of and as a reasonably foreseeable
consequence of the conspiracy while the de‐
fendant was a member of the conspiracy.
Following deliberations, the jury found both Willis and
Simmons guilty of conspiracy to sell heroin and found they
had both conspired to distribute 100 grams or more of her‐
oin. At sentencing, over her objection, Simmons received an
enhancement for possessing a gun during a drug trafficking
offense based on the weapon recovered from the Illinois
Nos. 16‐2342 & 16‐2375 9
home she shared with Willis. Willis and Simmons both ap‐
peal.
II.
On appeal, Willis and Simmons first jointly argue that
they are entitled to a new trial because blacks were un‐
derrepresented in the composition of the jury pool. Next,
they argue that there was a fatal variance between the con‐
spiracy charged in the indictment and the proof at trial. Sim‐
mons alone presents two additional challenges: She claims
the judge erred in instructing the jury concerning the quan‐
tity of heroin for which she was responsible and that the dis‐
trict court clearly erred in enhancing her sentencing level for
possession of a gun in a drug offense. We consider each is‐
sue in turn.
A. Jury Venire
The defendants first argue that they are entitled to a new
trial because only one of the 48 members of the jury venire
appeared to be black. A defendant is entitled to “be tried by
an impartial jury drawn from sources reflecting a fair cross‐
section of the community.” Berghuis v. Smith, 559 U.S. 314,
319 (2010). In order to prove that a jury venire does not re‐
flect a fair cross‐section, and thus constitutes a violation of
the Sixth Amendment, a defendant must show that the
group excluded was a distinctive group in the community;
the representatives of this group in the venire was not fair
and reasonable in relation to the number of such persons in
the community; and that this underrepresentation was due
to systematic exclusion of the group in the jury‐selection
process. United States v. Alanis, 265 F.3d 576, 583 (7th Cir.
2001).
10 Nos. 16‐2342 & 16‐2375
In this case, the defendants cannot show that the un‐
derrepresentation of blacks in the jury pool was due to a sys‐
tematic exclusion of this group. Rather, the jury venire was
pulled from individuals registered to vote and this court has
previously upheld this methodology for the same court
which tried Willis and Simmons—the Northern District of
Indiana‐South Bend division. United States v. Phillips, 239
F.3d 829, 840 (7th Cir. 2001) (explaining jury venire is se‐
lected at random from the general election voter registration
list of the eleven counties that comprise the South Bend Di‐
vision of Northern District of Indiana and upholding jury
selection plan); Alanis, 265 F.3d at 583. (rejecting a Sixth
Amendment challenge based on the racial composition of a
jury pool where the defendant did not present evidence of
the racial composition of the eleven counties from which ve‐
nires for the South Bend Division of the Northern District of
Indiana are pulled). Further, in Phillips, this court rejected a
challenge to a jury pool which involved 48 members with‐
out a single black member where there was no evidence of
a flawed methodology for selecting the jury. Phillips, 239
F.3d at 841–42. And as we recently held in United States v.
Fadiga, 858 F.3d 1061, 1064 (7th Cir. 2017), absent record ev‐
idence that the jury‐selection rules for the Northern District
of Indiana were biased or bypassed, it was proper for the
district court to reject a challenge to the racial balance of the
jury. Accordingly, we reject the defendants’ challenge to the
composition of the jury.
B. Variance
The defendants next argue that there was a fatal variance
between the conspiracy charged in the indictment and the
government’s proof at trial. Specifically, Willis and Simmons
Nos. 16‐2342 & 16‐2375 11
argue that the indictment did not charge them with conspir‐
ing with each other—but with conspiring “with others”—
but that the judge instructed the jury that the government
only needed to prove that each defendant had conspired
with one other person. The defendants argue this difference
constituted a material variance from the indictment. In sup‐
port of their position, the defendants highlight other cases
in which co‐conspirators were explicitly charged with “con‐
spiring with each other.” See, e.g., United States v. Carson, 9
F.3d 576, 585–86 (7th Cir. 1993); United States v. Rosen‐
blum, 176 F.2d 321, 325 (7th Cir. 1949).
There are several problems with the defendants’ argu‐
ment. First, if the indictment did not charge Willis and Sim‐
mons with conspiring with each other, then the proper legal
challenge would be based on “constructive amendment”
and not a variance. United States v. Burge, 711 F.3d 803, 813–
14 (7th Cir. 2013) (explaining that a constructive amendment
occurs if jury instructions allow for the conviction for a
crime not charged while a variance does not change the es‐
sential substance of the offense).
In any event, contrary to the defendants’ position, the in‐
dictment—while inartful—did charge Willis and Simmons
with conspiring with each other. Here, again, is what the in‐
dictment said: “Antwon Willis … and Ericka Sim‐
mons … defendants herein, knowingly and intentionally
combined, conspired, confederated and agreed with other
persons known and unknown to the grand jury, to commit
one or more offenses against the United States.”
There are two ways to read this language. “Antwon Wil‐
lis and Ericka Simmons conspired with other persons” or
“Anton Willis conspired with other persons” and “Ericka
12 Nos. 16‐2342 & 16‐2375
Simmons conspired with other persons.” However, under
either reading of the indictment, Simmons and Willis were
charged with conspiring with each other. Under the first
reading, the duo together conspired with other persons;
they could not together agree with a third person unless
they were also agreeing with each other. Under the second
possible reading, Simmons was charged with conspiring
with other persons—which could include Willis—and Wil‐
lis was charged with conspiring with other persons—which
could include Simmons.
Now the use of the plural “other persons” means that at
least three people were involved in the conspiracy—Willis,
Simmons, and at least one other person. The government ar‐
gues on appeal that it had presented sufficient evidence that
the Indiana heroin buyers who resold the drugs were the
defendants’ co‐conspirators. We need not reach that nar‐
rower question. The law in this circuit is clear that “‘a pros‐
ecutor may elect to proceed on a subset of the allegations in
the indictment, proving a conspiracy smaller than the one
alleged,’ so long as that subset is also illegal. If the conspir‐
acy charged in the indictment includes the smaller conspir‐
acy found by the jury, then the variance will not be fatal,
since the indictment would have sufficiently notified the de‐
fendants of the Government’s accusations.” United States v.
Wilson, 134 F.3d 855, 865 (7th Cir. 1998) (quoting United
States v. Duff, 76 F.3d 122, 126 (7th Cir. 1996)). See also Cam‐
pos, 541 F.3d at 745 (explaining that Wilson “held that it was
error to instruct the jury that if the government fails to prove
the exact conspiracy charged in the indictment, the jury
should acquit”).
Nos. 16‐2342 & 16‐2375 13
In this case, as the government argued below, a conspir‐
acy between just Willis and Simmons constituted a subset of
the broader “with other persons” conspiracy charged in the
indictment. Because it was equally illegal for two to conspire
together as for three or more to do so, the variance is not
fatal. United States v. Cooper, 767 F.3d 721, 727 (7th Cir. 2014)
(explaining that to convict on a conspiracy charge the gov‐
ernment must prove, among other things, that “two or more
people agreed to commit an unlawful act”); United States v.
Moreland, 703 F.3d 976, 984 (7th Cir. 2012) (“Conspiracy is
agreement, and it takes two to agree.”).
C. Simmons’s Additional Challenges
Simmons presents two additional challenges. First, she
argues that the district court erred in instructing the jury
concerning quantity of drugs involved. Here’s the instruc‐
tion given:
The amount of heroin involved in a defend‐
ant’s offense includes the amount of heroin
that the defendant conspired to distribute
while the defendant was a member of the con‐
spiracy and the amount of heroin that the de‐
fendant’s co‐conspirators distributed in fur‐
therance of and as a reasonably foreseeable
consequence of the conspiracy while the de‐
fendant was a member of the conspiracy.
Simmons argues this instruction was flawed because it
“invite[d] the jury to determine that Ericka Simmons [was]
responsible for the amount of heroin Anton Willis distrib‐
uted even if that amount was not foreseeable to her because
of her particular conspiratorial agreement.” The instruction,
14 Nos. 16‐2342 & 16‐2375
however, expressly limited a defendant’s responsibility to
quantities reasonably foreseeable to that defendant while a
member of the conspiracy. We fail to see how the instruction
represented an incorrect or incomplete statement of the law.
United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014).
Moreover, any error in this instruction would have been
harmless since the evidence that Simmons conspired with
Willis to sell 100 grams or more of heroin was overwhelm‐
ing. Specifically, the evidence established that Simmons re‐
trieved over $18,000 in Moneygram transfers for heroin de‐
livered by Willis. At the approximately $7 per capsule rate,
those transactions alone represented well over 100 grams of
heroin.
Finally, Simmons challenges her sentence, arguing the
district court erred in enhancing her sentencing level for
possession of a gun during a drug trafficking offense pursu‐
ant to U.S.S.G. § 2D1.1(b)(1). That section provides for a
two‐level enhancement when “a dangerous weapon (in‐
cluding a firearm) was possessed” during a drug trafficking
offense. “Possession” means “either actual possession or
constructive possession, meaning [she] had the power and
the intention to exercise dominion or control over the fire‐
arm.” United States v. Morris, 836 F.3d 868, 872 (7th Cir. 2016).
Further, a defendant is liable if the possession was reasona‐
bly foreseeable in furtherance of the jointly undertaken
criminal activity. United States v. Ramirez, 783 F.3d 687, 690–
91 (7th Cir. 2015).
While Simmons focuses on the lack of evidence that she
personally possessed the gun, that argument is not helpful
to her appeal for three reasons. First, the evidence was suf‐
ficient to show that Willis possessed the gun and given its
Nos. 16‐2342 & 16‐2375 15
location and the location of the drugs and the drug para‐
phernalia, his possession was reasonably foreseeable to Sim‐
mons. These facts are sufficient to justify the enhancement
based on co‐conspirator liability. Second, the evidence suffi‐
ciently established that Simmons constructively possessed
the gun given that it was in the closet of the bedroom she
shared with Willis and, again, near drugs and drug para‐
phernalia. Under these circumstances, there is no clear error
in enhancing Simmons’s sentence for possession of the gun.
Finally, had there been error, it would have been harmless
because the district judge expressly stated that he would
have sentenced Simmons to the same term of imprisonment
even had he calculated a different guideline range. See
United States v. Tate, 822 F.3d 370, 377 (7th Cir. 2016).
III.
By conspiring together to distribute heroin—a charge
contained within the broader indictment—Willis and Sim‐
mons have destined themselves to long terms of imprison‐
ment. While they seek to avoid that outcome by challenging
the racial composition of the jury pool, they have failed to
show a Sixth Amendment violation. Simmons also cannot
show any error in the jury instruction or the district court’s
assessment of an enhancement for possessing a firearm dur‐
ing a drug trafficking offense; and even if she could, any er‐
ror would be harmless. For these and the foregoing reasons,
we AFFIRM.