Appeal from the United States District Court for the Central District of Illinois. No. 06 CR 40063-Michael M. Mihm, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge
Before BAUER, FLAUM and MANION, Circuit Judges.
Seth Cox was convicted of conspiring to manufacture, distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. The district court sentenced Cox to 300 months' imprisonment and five years of supervised release. Cox appeals his conviction and sentence, and for the following reasons, we affirm.
From early 2003 through January 2004, Audie Weir operated a methamphetamine-producing laboratory out of his home in Bradford, Illinois. To produce methamphetamine, Weir needed the appropriate ingredients, and would rely on various users to bring him ingredients in exchange for drugs. Cox first met Weir in either late 2002 or early 2003, when he accompanied his cousin to Weir's house to trade ingredients for methamphetamine. Over the ensuing ten months, Cox went to Weir's house at least once a week, frequently purchasing drugs or trading ingredients for drugs from Weir. In addition to providing ingredients to Weir, Cox helped him install a four-camera surveillance system in his home. On January 2, 2004, state law enforcement officers raided Weir's house and uncovered the lab.
On June 22, 2005, a grand jury returned a single-count indictment against Cox and three other men under 21 U.S.C. § 846 for conspiring to violate § 841(a), "that is, to knowingly and intentionally manufacture, distribute, and possess with intent to distribute" a controlled substance. Cox's three co-defendants pleaded guilty; Cox went to trial. The government's evidence at trial, detailing the facts set out above, included the testimony of Weir, four other co-conspirators, and three law enforcement officers.
On October 5, 2006, a jury returned a guilty verdict. The district court sentenced Cox on April 13, 2007 to 300 months' imprisonment, five years of supervised release, a $100 special assessment, and joint and several liability along with his co-defendants with respect to $6,137.56 in restitution. This timely appeal followed.
Cox argues that (1) the indictment charging him was constitutionally defective, requiring vacatur; (2) the district court erred by allowing a prejudicial comment before the jury without striking it or giving a limiting instruction; and (3) the district court erred in calculating the quantity of methamphetamine for which Cox was responsible. We address each issue in turn.
A. Sufficiency of the Indictment
Cox raises two issues in arguing that his conviction should be vacated because of the defects in the indictment. First, he argues that the indictment misstated the statute under which he was charged, and therefore failed to give adequate notice of the nature of the charge. Second, he argues that the indictment failed to state all of the elements of a drug-related conspiracy, again failing to give him notice of the charge.
Cox challenges the indictment for the first time on appeal. "[I]f an indictment has not been challenged at the trial level, it is immune from attack unless it is so obviously defective as not to charge the offense by any reasonable construction." United States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003) (citing United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir. 2002)). "[T]ardily challenged indictments should be construed liberally in favor of validity." United States v. Harvey, 484 F.3d 453, 456 (7th Cir. 2007) (citing United States v. Smith, 230 F.3d 300, 306 n. 3 (7th Cir. 2000)).
Under Rule 7(c)(1) of the Federal Rules of Criminal Procedure, an indictment must be "a plain, concise, and definite written statement of the essential facts constituting the offense charged. . . ." Fed. R. Crim. P. 7(c)(1). We have held that an indictment is constitutionally sufficient and satisfies Rule 7(c)(1) if: (1) the indictment states all of the elements of the crime charged; (2) it adequately apprises the defendant of the nature of the charges so that he may prepare a defense; and (3) it allows the defendant to plead the judgment as a bar to any future prosecutions for the same offense. Harvey, 484 F.3d at 456 (citing United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997)). ...