Appeal from the United States District Court for the Southern District of Illinois. No. 98 CR 40005--J. Phil Gilbert, Judge.
Before Flaum, Chief Judge, Harlington Wood, Jr., and Rovner, Circuit
The opinion of the court was delivered by: Rovner, Circuit Judge
Lee F. Kibler was indicted by a grand jury on one count of conspiracy to distribute and possess cocaine base with intent to distribute, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846, and on two counts of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1). A jury found him guilty on all three counts, and the court sentenced him to life imprisonment on the conspiracy count, and to 360 months on each of the remaining counts to be served concurrently.
The trial testimony demonstrated that Kibler operated an automobile detailing shop in Mount Vernon. In a bedroom above the shop, Kibler weighed and packaged crack cocaine, and he also used the bedroom to trade crack cocaine for sex with a number of female customers. In addition, he traded crack cocaine for food stamps, sold it for cash, and fronted it to others who would sell it and then return cash to him. The testimony included recordings from two "controlled buys," in which Zelman Johnson, a confidential source working for law enforcement, arranged and completed purchases of crack from Kibler. In addition, a number of other witnesses testified as to their transactions with Kibler.
Kibler alleges that his due process right to a fair trial was violated by the introduction of evidence regarding prior convictions, uncharged offenses, and irrelevant immoral behavior. We take each allegation in turn.
Kibler concedes that he made no objection at trial to evidence regarding his prior convictions, and that his defense counsel in fact made no effort to limit the facts of his prior convictions from reaching the jury. Accordingly, our review is limited to plain error. Error under that standard is reversible only if it is "plain," meaning clear under current law, and if it affects substantial rights, in that it must be prejudicial and must have affected the outcome of the district court proceedings. United States v. Olano, 507 U.S. 725, 734 (1993); United States v. Williams, ___ F.3d ___, 2001 WL 1443900, *9 (7th Cir. 2001); Fed. R. Crim. Proc. 52(b). If the defendants can make that showing, the court of appeals has the discretion to correct the forfeited error under Rule 52(b), but "the court should not exercise that discretion unless the error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Olano, 507 U.S. at 732.
At a number of points in the trial, various witnesses alluded to Kibler's prior incarceration. Generally, it arose in the context of establishing either a timeline of events, or in establishing the relationship between Kibler and the witness. For instance, an initial reference came during the direct testimony by Chris Mendenall, the Chief of Police of the Mount Vernon Police Department. Mendenall testified that Kibler made a statement after his arrest in which he declared that he started selling crack when he got out of prison in 1996. Similarly, government witness Manuel Vernell Berry, when asked on direct examination if he met with Kibler when he was in Mount Vernon, stated that Kibler was incarcerated until around 1996, and that he saw him after that time. Other witnesses alluded to the incarceration in the course of explaining a relationship with Kibler or an event involving Kibler. For instance, government witness Zelman Johnson testified that he had the same parole officer as Kibler, and that the officer's presence at the detail shop when Kibler and Zelman were both there had caused Kibler to get everyone together and decide to shut the shop down for a while. Finally, government witness Fred Goosby testified that he first met Kibler when they were both in the penitentiary in 1990. Kibler's defense counsel objected to the follow-up question by the prosecu tor, in which Goosby stated that Kibler was in the penitentiary "for drugs," and the court sustained that objection.
We need not discuss whether it was error to allow the witnesses to reveal Kibler's prior incarceration in those contexts, because even assuming it was error, it cannot rise to the level of plain error. The defense in this case was not premised on denying Kibler's involvement with crack cocaine. Kibler presented no witnesses in rebuttal of the government's case. Instead, the theory of the defense was that Kibler could not be guilty of conspiracy, because the government could not prove the agreement with two or more persons that was essential to the conspiracy charge. The defense counsel made clear that the trial strategy was to rebut the existence of an agreement in both his opening and closing statements to the jury, and in his insistence on the buyer-seller instruction. That instruction, based on United States v. Thomas, 150 F.3d 743 (7th Cir. 1998), ad monished the jury that the existence of a simple buyer-seller relationship between Kibler and another person, without more, was insufficient to establish a conspiracy, even where the buyer intended to resell the crack cocaine.
The evidence of the prior convictions, however, had virtually no impact on that defense. The evidence that Kibler was a seller of crack was overwhelming, and the defense strategy was a concession to that reality. Therefore, we are not faced with a situation in which a defendant denies all illegal activities, and the prior convictions render that denial less believable. There was no evidence introduced indicating that those prior convictions were for a drug conspiracy, as opposed to individual actions as a seller. Therefore, the prior convictions were consistent with the defense strategy of portraying Kibler as a drug dealer who operates independently, rather than as part of a conspiracy. Moreover, a limiting instruction was given admonishing the jury that it could not consider his prior incarceration as evidence of guilt of the crimes for which Kibler was charged. We assume that jurors follow the court's instructions, unless there is substantial evidence to the contrary. United States v. Williams, 216 F.3d 611, 615 (7th Cir. 2000); United States v. Hernandez, 84 F.3d 931, 935 (7th Cir. 1996). There is no reason here to believe that the jury did not heed that instruction. Kibler failed to identify any manner in which the prior conviction evidence prejudiced his defense of no conspiracy, nor has he demonstrated that the prior convictions affected the outcome of the proceedings in this case.
Kibler next challenges the introduction of evidence relating to uncharged criminal conduct, specifically testimony that Kibler had "put out a hit" on another person, which was elicited by the government on direct examination of Manuel Vernell Berry as follows:
Q: Do you recall something that happened to you that led you to believe that someone was out to kill you?
MR. STOBBS [defense counsel]: Judge, I'm going to object to this ...