In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1036 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.
ADONNIS CARSWELL, Defendant-Appellant. ____________________
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:17-cr-00039-HAB-SLC-1 — Holly A. Brady, Judge. ____________________
ARGUED FEBRUARY 12, 2021 — DECIDED MAY 6, 2021 ____________________
Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges. HAMILTON, Circuit Judge. A jury convicted defendant-ap- pellant Adonnis Carswell on four drug and ęrearm oěenses, including possession of heroin with intent to distribute. 21 U.S.C. § 841(a)(1). He raises two issues on appeal. First, he contends that the search warrant for his residence was issued without probable cause, so that the heroin, cash, and ęrearms 2 No. 20-1036
found there should have been suppressed as evidence. Sec- ond, he contends that several portions of the prosecutor’s closing arguments violated his constitutional rights. We aĜrm. The judge who issued the search warrant had a reasonable basis for thinking evidence of drug and ęrearm crimes was likely to be found at Carswell’s home. The prose- cution’s closing arguments were not improper, did not make Carswell’s trial unfair, and did not deny him due process of law. We address ęrst the search warrant issue and then the closing arguments. Key to both issues is Carswell’s trial de- fense, which was that the 64 grams of heroin seized in the search of his home was only for his personal use and that he was not distributing drugs of any sort. I. Probable Cause for the Search Warrant A. Facts and Procedural Background In June 2017, OĜcer Caleb Anderson with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sought a federal warrant to search for evidence of drug traĜcking and unlawful possession of a ęrearm in the New Haven, Indiana residence of defendant Adonnis Carswell and his partner, Dereka Evans. To establish probable cause, OĜcer Ander- son’s supporting aĜdavit relied on three sources of infor- mation: a trash pull from Carswell’s driveway that turned up evidence of drugs, drug packaging materials, and a ęrearm purchase; Carswell’s prior drug-related activity; and a tip from a recently arrested drug dealer who identięed Carswell as his/her supplier. Even if we assume for purposes of the ap- peal that none of these three sources alone would have pro- No. 20-1036 3
vided probable cause, we must consider them together. To- gether they gave the issuing judge probable cause to issue the warrant. The story begins on June 26, 2017, when police saw Cars- well driving a Porsche over 100 miles per hour through a 45 miles per hour zone of New Haven, Indiana. When police stopped him, he gave his home address on Green Road in New Haven. Law enforcement had suspected Carswell of drug dealing but had not yet ęgured out where he lived. After OĜcer Anderson learned of Carswell’s arrest, he carried out surveillance at the Green Road address for four days. He con- sistently observed a vehicle registered to Carswell parked in the driveway. On the ęrst evening of surveillance, OĜcer Anderson no- ticed two trash bins at the end of the driveway for pick-up. He returned just before midnight and removed several bags from the bins. He found the following items in one of the trash bags: (i) three opened food-saver bags; (ii) two one-gallon Ziploc bags containing residue that ęeld-tested positive for cocaine; (iii) two sandwich bags that ęeld-tested positive for cocaine; (iv) two pairs of white latex gloves; and (v) packaging that resembled a kilogram wrapper for cocaine that ęeld- tested positive for cocaine. The kilogram packaging, which OĜcer Anderson identięed as green saran wrap, matched photographs of drug packaging used in a 2014 Indiana State Police case involving Carswell. OĜcer Anderson’s aĜdavit also said that green saran wrap is commonly used to wrap kilogram packages of cocaine. A kilogram typically costs be- tween $25,000 and $35,000 and is not (remotely) a user quan- tity. 4 No. 20-1036
In a second trash bag, OĜcer Anderson found three grams of a pink crystal substance that he recognized as crystal meth- amphetamine and that later ęeld-tested positive for metham- phetamine. His aĜdavit said that a personal user of metham- phetamine was unlikely to discard three grams of the drug (valued at approximately $300). OĜcer Anderson also found receipts showing that Ms. Ev- ans had purchased a CZ Scorpion EVO 3 pistol and four boxes of ammunition from a Fort Wayne ęrearms dealer in April 2017. OĜcer Anderson explained that in his training and ex- perience, it was common for people with prior felony convic- tions to have close associates, including girlfriends, buy ęre- arms for them. OĜcer Anderson’s aĜdavit also provided background in- formation on Carswell and Evans. Carswell had a 2004 felony conviction for armed bank robbery. The aĜdavit described a recent Indiana State Police investigation involving inter- cepted shipments of marijuana to Fort Wayne addresses asso- ciated with Carswell. In March 2015, oĜcers identięed a ęve- pound package of marijuana on its way to one of those ad- dresses, located on Stormy Court. OĜcers had obtained a warrant and made a controlled delivery. When Carswell, Ev- ans, and two children arrived, Carswell took the package in- side. When the package was opened, oĜcers executed their search warrant. They found the bundle of marijuana encased in green saran wrap, as well as $7,240 in cash, a Glock .40 cal- iber pistol, a ballistic body-armor vest, documents and mail in Evans’ name, documents and mail in Carswell’s name, three drug ledgers, several cell phones belonging to Carswell, a dig- ital scale with cocaine residue, a plate with cocaine residue, No. 20-1036 5
plastic bags, and rubber gloves. Carswell was eventually con- victed in Indiana state court of maintaining a common nui- sance. Finally, OĜcer Anderson’s aĜdavit reported May 2017 statements by a person arrested for unlawful possession of a ęrearm. The arrestee’s residence contained evidence of drug traĜcking, including $3,000 in cash, a ęrearm near materials used to dilute cocaine and heroin, 386 grams of marijuana, 24 grams of crack cocaine, 58 grams of heroin, and 6 grams of fentanyl. The arrestee told OĜcer Anderson that he/she earned about $20,000 per month by dealing drugs. The person identięed Carswell and Carswell’s brother, Jashod Thomas, as the suppliers. The arrestee claimed that Thomas had sup- plied cocaine, crack cocaine, and heroin two days prior to the arrest. The arrestee further claimed that Thomas had been supplied by Carswell.1 A federal magistrate judge issued a warrant to search Carswell’s Green Road residence based solely on OĜcer An- derson’s aĜdavit. OĜcers conęscated 64 grams of heroin, ęve cell phones, $25,000 in cash, ęrearms and ammunition, and drug packaging materials, including two digital scales that ęeld-tested positive for cocaine and a machete laced with marijuana residue. Carswell was charged with federal drug and ęrearm oěenses. Carswell moved to suppress all evidence seized in the search of his residence, asserting that the warrant failed to es- tablish probable cause. The district court denied the motion,
1The arrestee had provided addresses for Carswell, but Officer An- derson had been unable to locate Carswell at those addresses. The arrestee had not provided the Green Road address. 6 No. 20-1036
ęnding that OĜcer Anderson’s aĜdavit established a fair probability that a search of Carswell’s residence would reveal evidence of drug traĜcking and unlawful possession of a ęre- arm. The court did not reach the government’s back-up argu- ment that the evidence should not be suppressed because of- ęcers relied in good faith on a facially valid warrant, per United States v. Leon, 468 U.S. 897, 922 (1984). B. Analysis The Fourth Amendment provides “no Warrants shall is- sue, but upon probable cause, supported by Oath or aĜrma- tion ….” Probable cause for a search warrant is established when, based on the totality of the circumstances, the govern- ment presents a judge with evidence showing a “fair proba- bility that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Jones, 208 F.3d 603, 608 (7th Cir. 2000). On ap- peal we give no special weight to the district court’s legal con- clusion about probable cause, but we defer to the issuing judge’s decision so long as substantial evidence supported it. United States v. Curry, 538 F.3d 718, 729 (7th Cir. 2008). When an aĜdavit is the only evidence presented to support a search warrant, the validity of the warrant rests solely on the strength of the aĜdavit. United States v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009). The task of the issuing judge is to make a “practical, com- monsense decision” whether, in light of the facts in the aĜda- vit, there is a fair probability that contraband or evidence of a crime will be discovered in a particular place. United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002), quoting Gates, 462 U.S. at 238; accord, e.g., United States v. Aljabari, 626 F.3d 940, 944 No. 20-1036 7
(7th Cir. 2010) (this is a “common-sense, non-technical deter- mination”). The judge is entitled to draw reasonable infer- ences about where evidence is likely to be kept and must con- clude only that it would be reasonable to seek the evidence in the location identięed in the aĜdavit. Curry, 538 F.3d at 729. Nevertheless, a judge may not rely solely upon “conclusory allegations” or a “bare bones” aĜdavit in issuing a warrant. Id., quoting Koerth, 312 F.3d at 867. Here, the issuing judge reasonably found a fair probability that evidence of drug and ęrearm crimes would be found at Carswell’s Green Road residence. On appeal, Carswell chal- lenges each of the three legs of the stool that OĜcer Anderson and the issuing judge used to support probable cause. The trash pull found drugs, drug residue, drug packaging materials, and a receipt for a ęrearm and ammunition, providing substantial reason to think one might ęnd drug- distribution and ęrearm evidence in the Carswell residence. See United States v. McDuěy, 636 F.3d 361, 364 (7th Cir. 2011) (“[E]ven a tiny bit of discarded drugs increases the likelihood that police will ęnd more in the home.”); United States v. Bil- lian, 600 F.3d 791, 794 (7th Cir. 2010) (small quantities of ma- rijuana in defendant’s trash indicated that there was mariju- ana in his house, not that small quantities were all he pos- sessed). Carswell points out that two trash pulls with drug evi- dence would be more compelling than just one because of the possibility that someone else could have dropped her trash in the bins at the end of his driveway. Cf. United States v. Leonard, 884 F.3d 730, 734–35 (7th Cir. 2018) (two trash pulls, a week apart, both testing positive for cannabis, were suĜcient to es- tablish probable cause for search warrant). We suppose it is 8 No. 20-1036
possible that other people dropped their drug-related trash in Carswell’s bins that particular week. But that possibility does not necessarily defeat probable cause, which deals with, well, probability, not certainty. See United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006) (“theoretically possible” scenario sub- miĴed by defendant was not enough to negate existence of probable cause). (Not to mention the receipt for Evans’ pur- chase of the CZ Scorpion pistol and ammunition, and the am- ple evidence linking Carswell and Evans to the Green Road residence.)2 In addition to the drug and ęrearm evidence from the trash pull, the aĜdavit noted Carswell’s criminal history, in- cluding the armed robbery and the nuisance conviction from the receipt of distribution quantities of marijuana. Such prior convictions will not by themselves establish probable cause for a search today, of course. (Recall Captain Renault’s iconic line at the end of Casablanca, “Round up the usual sus- pects ….”) But those prior convictions can be relevant and “retain some corroborative value.” United States v. Olson, 408 F.3d 366, 372 (7th Cir. 2005); see also McDuěy, 636 F.3d at 364 (prior drug convictions not dispositive but relevant and enti- tled to some weight in casting doubt on any innocent expla- nations for the marijuana trace in trash, a currency handoě, and a stream of visitors to suspect’s home); United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (interpreting evidence from suspect’s trash in light of prior conviction).
2 The affidavit also connected Evans to Carswell. For example, in 2014
and 2015, Evans and Carswell shared the Stormy Court residence where Carswell received the marijuana bundle. And on June 26, 2017, Evans picked up Carswell when his Porsche was impounded after his speeding offense. No. 20-1036 9
Carswell also points out that the informant’s tip lacked de- tail and that no information was provided about the inform- ant’s reliability or basis of knowledge. We assume that the in- formant’s tip would not have been enough by itself to support a search warrant. See, e.g., Olson, 408 F.3d at 370 (newly ar- rested informant “merits a greater dose of skepticism when assessing his credibility”); United States v. Peck, 317 F.3d 754, 757 (7th Cir. 2003) (“Given the deęciencies in the warrant ap- plication, we cannot ęnd that [the conędential informant’s] oath compensates for the lack of detail in the aĜdavit and the failure of the police to corroborate her statements.”). That’s why we ordinarily expect police oĜcers to corroborate infor- mation from tipsters of unknown reliability. See McDuěy, 636 F.3d at 364 (informant’s report was “ęrsthand and precise, and thus more reliable”); Olson, 408 F.3d at 371–72 (empha- sizing that some corroboration of informant’s account was es- sential to uphold warrant); Jones, 208 F.3d at 609 (“OĜcer Welsh corroborated as much of Jane Doe’s information as he could before seeking the search warrant.”); United States v. Singleton, 125 F.3d 1097, 1104 (7th Cir. 1997) (highlighting “in- dependent, often contemporaneous, police corroboration” of informant’s controlled buys). Here the investigators had substantial corroboration, which poses the biggest obstacle for Carswell’s challenge to the search warrant. When we evaluate a probable cause ęnd- ing, we do not view the individual facts in isolation. We con- sider the totality of the circumstances presented to the judge. United States v. Fifer, 863 F.3d 759, 764 (7th Cir. 2017). The de- termination is rooted in common sense. It requires only a fair probability—not certainty—that the search will uncover evi- dence of criminal activity. Gates, 462 U.S. at 238 & 243 n.13; 10 No. 20-1036
Curry, 538 F.3d at 729; Koerth, 312 F.3d at 866. The combina- tion of the drug and ęrearm evidence from the trash pull, Carswell’s prior convictions, and the informant’s tip was enough to support, even if not to require, a ęnding of proba- ble cause for the search warrant. We need not address the of- ęcers’ good-faith reliance on the warrant. The district court properly denied Carswell’s motion to suppress the evidence seized pursuant to the search warrant. II. Closing Arguments and the Claims of Prosecutorial Misconduct A. Facts and Procedural Background 1. The Search of Carswell’s Green Road Residence To explain Carswell’s numerous challenges to the closing arguments, we need to lay out much of the evidence pre- sented at trial. When federal agents executed the search war- rant, they found extensive evidence of drugs and ęrearms. Carswell’s only defense at trial was that the 64 grams of her- oin found in the search was only for his personal use, not for distribution. In the master bedroom, agents found two ęrearms, ammu- nition, ęve cell phones, and thousands of dollars in cash. The CZ Scorpion EVO 3 pistol—listed on the receipt from the trash pull—was under the bed, loaded with twenty-one rounds in the magazine and one in the chamber. In the dresser, oĜcers found a purse with Evans’ identięcation and handgun permit. In the master bedroom closet, and close to Carswell’s wal- let, oĜcers found a Zastava AK-47 Variant riĚe loaded with 60 rounds of ammunition. Also close to the riĚe, oĜcers found men’s clothing, a Rolex watch, and a digital safe. From inside the safe, oĜcers recovered $3,000 in cash. A second safe No. 20-1036 11
held $20,404 in cash banded into sets of thousands. Agents re- covered a total of $25,464 in cash. In the kitchen, agents found a Smith & Wesson pistol loaded with ten rounds, including one in the chamber. A cab- inet held extra magazines for the Smith & Wesson and CZ Scorpion pistols, a box of ammunition, and, most notably, 64 grams of heroin. Agents also found two digital scales that rec- orded weights up to 13 pounds and later ęeld-tested positive for cocaine. The basement smelled of raw marijuana, and agents found green plastic saran wrap and a machete laced with marijuana residue.3 Agents examined photographs and text messages from Carswell’s cell phones. One photo showed a partial brick of cocaine next to three individual portions atop a scale. The scale read “64,” which ATF Agent Thomas Kaiser interpreted to mean 64 ounces or four pounds of cocaine. The counter and the scale in the photo matched the counter and one of the dig- ital scales found in Carswell’s kitchen. Another photo showed 44 pounds of marijuana bundled into three large bales atop a Ěoor scale. 2. Carswell’s Statements During the Search During the search, Carswell was taken to his dining room. He volunteered to Agent Kaiser: “It’s all personal.”4 Carswell
3 A government witness testified that machetes are commonly used to
break apart bales of marijuana. 4 Carswell’s out-of-court statement was offered by the government. On direct examination, Agent Kaiser testified that Carswell briefly en- gaged him in a conversation about sports. The conversation quickly piv- oted to the possibility of finding narcotics in Carswell’s home. Agent Kai- ser testified that “from what I could gather,” Carswell told him: “Just put 12 No. 20-1036
was later interviewed by OĜcer Anderson and ATF Agent Sean Skender. OĜcer Anderson and Agent Skender asked Carswell if he had used drugs within the last twenty-four hours. Carswell replied “marijuana” and clarięed that he had used the drug a “few times” the day before. Carswell later ad- miĴed that there was heroin in the kitchen cabinet and claimed that he used heroin but was not addicted to it. During the interview, Carswell wore boxer shorts and a sleeveless un- dershirt. Agents did not observe track marks on his arms and legs or any other physical signs of heroin use. 3. Trial Evidence Carswell did not testify or oěer other evidence, but his counsel used cross-examination to lay a foundation for his personal-use defense theory. Defense counsel conęrmed that Carswell had told the agents during the search that the heroin in the kitchen was “for personal use.” As another example, one agent acknowledged that heroin can be consumed na- sally—i.e., snorted—through a rolled-up dollar bill, for exam- ple, without needles or evidence of smoking. To rebut Carswell’s personal-use theory, the government called a veteran DEA agent, Howard Schneider, Jr., as an ex- pert witness in drug traĜcking. Agent Schneider testięed that heroin is very addictive, both emotionally and physically. It is common, he said, for heroin users to consume the drug every day. It is also common for those who stop using heroin to be- come “dope sick,” causing them to sweat, vomit, and suěer Ěu-like symptoms. Agent Schneider testięed that if a heroin
it in your pocket, $10,000.” Agent Kaiser testified that he responded: “Are you referring to narcotics?” Carswell replied, “It’s all personal.” No. 20-1036 13
user had not used heroin within the past twenty-four hours, he would expect the person to be “dope sick.” Agent Schneider also testięed that heroin users typically smoke or inject the drug. He testięed that heroin users who snort the drug tend to have straws or thin glass tubes, while those who inject the drug have a “kit” consisting of a needle, spoon, belt (or tourniquet) to prepare the veins, and a pocket scale that can measure the tenths of grams that constitute the typical single dose.5 To that point, Agent Schneider added, the digital scales found in Carswell’s kitchen—which recorded weights up to 13 pounds—were not typical user scales. Agent Schneider also testięed that in his experience, users possess “very small amounts” of heroin. The largest quantity that a user will possess, he explained, would be an “eight ball,” about three grams. Agent Schneider explained that a lack of self-control combined with a desire to avoid with- drawal prevents the average heroin user from possessing large quantities of the drug at any given time. For similar rea- sons, he said, heroin users do not typically possess large sums of cash. Agent Schneider said he had never encountered a her- oin user who possessed a month’s supply, let alone a year’s supply, of heroin. In his experience, therefore, 64 grams of heroin was “distribution quantity.”6
5Agent Schneider testified that a typical single dose of heroin is 0.1 gram, but a heavy user might consume up to three grams in a single dose. 6 On cross-examination, Agent Schneider conceded that heroin has a long shelf life, and that, as with many other products, it can be cheaper if bought in bulk. He also said that a person who snorts the drug typically will use a larger quantity in a single dose than a person who injects it. And 14 No. 20-1036
4. Closing Arguments The government’s closing arguments focused on the issue of intent to distribute versus personal use. The government emphasized Agent Schneider’s opinions about the physical evidence seized from Carswell’s home—ęrearms, ammuni- tion, packaging for distribution, lots of cash, the quantity of heroin—and the absence of physical evidence of personal use, including the absence of evidence of dope sickness. Carswell contends that several of the government’s re- marks violated his right to a fair trial under the due process clause of the Fifth Amendment. Carswell argues that the gov- ernment: (i) directly and indirectly commented on his deci- sion not to testify or present evidence at trial; (ii) argued that he was not “dope sick” without any basis in the record; (iii) argued that he operated a “stash house” with his brother without any basis in the record; and (iv) exaggerated the amount of heroin he possessed by misstating the evidence. Most of the challenged comments came in this passage: Consider the defendant’s credibility. The only evidence the defendant has placed—don’t get me wrong. He doesn’t have to do anything if he doesn’t want to. He doesn’t have to testify or none of that. You are entitled to consider what evidence is in front of you through the exhibits and what’s come in through the witness stand.
he acknowledged that heroin can be snorted from a surface without any special equipment. No. 20-1036 15
So he did say that the heroin was personal use. But evaluate that credibility. What is the credi- bility of that statement? And the Judge is going to give you an instruction on credibility. And it talks about a couple of concepts that I think are important for you to consider. One of them is whether the defendant has a reason to lie. Is there any bias, prejudice or other reason to lie or slant the statement? The truthfulness and accu- racy of the witness’ statement—and this is the testimony instruction—but Mr. Carswell’s statement in light of other evidence presented, and any inconsistent statements or conduct. So consider that statement in light of the evi- dence. Does it make sense? With all this evi- dence of intent to distribute, that statement is just not a credible statement. … His conduct is just simply not consistent with a user. He’s not dope sick and he’s got all those other tools of the drug traĜcking trade: The ęre power, the cash, the assets, the vehicles. B. Analysis In our view, none of the challenged remarks were im- proper, and none deprived Carswell of a fair trial. To evaluate such claims of prosecutorial misconduct, we ęrst determine whether the remarks by the prosecutor were improper when viewed in isolation. United States v. Common, 818 F.3d 323, 331 (7th Cir. 2016). If not, the analysis ends there and the defend- ant’s claim fails. United States v. Love, 336 F.3d 643, 647 (7th Cir. 2003). If any remarks were improper, we would evaluate 16 No. 20-1036
them in light of the entire record and determine whether they deprived the defendant of a fair trial. Common, 818 F.3d at 331. We would consider: (i) whether the prosecutor misstated the evidence; (ii) whether the remark implicated the specięc rights of the accused; (iii) whether the defense invited the re- sponse; (iv) the eěect of any curative instructions; (v) the de- fendant’s opportunity to rebut; and (vi) the weight of the evi- dence. United States v. Hale, 448 F.3d 971, 986 (7th Cir. 2006); Love, 336 F.3d at 647–48. The weight of the evidence is by far the most important factor. Love, 336 F.3d at 648. Defense counsel did not object to any of these remarks at trial. That means our review is even more deferential to the district court, limited to “plain error.” United States v. Tucker, 714 F.3d 1006, 1011 (7th Cir. 2013). Under the plain-error standard, we determine whether there was: (i) an error (ii) that was plain, meaning, clear or obvious, (iii) that seriously aěected Carswell’s substantial rights to the extent that he probably would not have been convicted absent the error, and (iv) that seriously aěected the fairness, integrity, or public reputation of the judicial proceedings. Id. Put another way, we ask whether the remarks were so egregious that the district judge was obliged, upon pain of reversal, to step in even with- out a defense objection. United States v. Briseno, 843 F.3d 264, 269 (7th Cir. 2016); United States v. Alexander, 741 F.3d 866, 870 (7th Cir. 2014). 1. Carswell’s Decision Not to Testify at Trial Carswell argues that the government’s argument improp- erly commented on his decision not to testify or present evi- dence at trial. The Fifth Amendment protects a defendant’s right against compelled self-incrimination by permiĴing a de- No. 20-1036 17
fendant to refuse to testify at trial. The corollary of that pro- tection is that a prosecutor may not make comments, either directly or indirectly, that invite the jury to infer guilt from the defendant’s decision not to testify. GriĜn v. California, 380 U.S. 609, 615 (1965); Tucker, 714 F.3d at 1014. This important and general protection, however, does not silence the prose- cution when the defense makes arguments not supported by credible evidence. The prosecution is well within its rights in pointing out the absence or weakness of defense evidence. To preserve this balance, we have explained often that the Fifth Amendment may forbid a prosecutor’s comment on the absence of a particular category of potential defense evidence when the only source of the potential evidence would have been the defendant himself. See United States v. Cotnam, 88 F.3d 487, 497 (7th Cir. 1996) (collecting cases explaining that the Fifth Amendment forbids prosecutorial comment on a failure to call witnesses when the only potential witness was the defendant himself); see also, e.g., Tucker, 714 F.3d at 1015 (“Although [defendant] did exercise his right not to testify, he was not the only witness capable of contradicting the Govern- ment’s version of the facts.”); cf. United States v. Handman, 447 F.2d 853, 855 (7th Cir. 1971) (reversing conviction where gov- ernment commented on absence of evidence that could have come only from the defendant himself). Accord, e.g., United States v. Williams, 479 F.2d 1138, 1140 (4th Cir. 1973) (collecting cases from First, Second, Third, Fourth, and Tenth Circuits to support proposition that even after GriĜn, “the prosecutor may point out that the defense did not oěer evidence to con- tradict the government’s case … at least where it is apparent that witnesses other than the defendant might have been of- fered by the defense”); Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965) (“Nor can we doubt that the government’s 18 No. 20-1036
statement that its witness’ statement stood ‘unimpeached and uncontradicted’ constituted improper comment. No one but appellant (or his co-defendant, whom appellant could not put on the stand against his will) could have contradicted the gov- ernment witness.”); United States v. Taylor, 848 F.3d 476, 488– 89 (1st Cir. 2017), citing Desmond, 345 F.2d at 227. A prosecutor violates the Fifth Amendment by comment- ing directly and adversely on the defendant’s failure to testify on his own behalf. United States v. Hills, 618 F.3d 619, 640 (7th Cir. 2010). Where a prosecutor indirectly comments on the de- fendant’s failure to testify, such a comment will be deemed improper only if the prosecutor’s “manifest intent” was to use the defendant’s silence as evidence of guilt, or if the jury would “naturally and necessarily” infer guilt from the com- ment. Id.; United States v. Mietus, 237 F.3d 866, 871 (7th Cir. 2001). Carswell challenges three comments on this ground. First, he points to the government’s comment that he did not have to testify: Consider the defendant’s credibility. The only evidence the defendant has placed—don’t get me wrong. He doesn’t have to do anything if he doesn’t want to. He doesn’t have to testify or none of that. This comment closely tracked the trial court’s correct and more formal instructions on the defendant’s right not to tes- tify. It was not improper at all. The government continued: “You are entitled to consider what evidence is in front of you through the exhibits and what’s come in through the witness stand.” Carswell argues No. 20-1036 19
that this statement, made in the context of discussing the cred- ibility of his “It’s all personal” statement to agents during the search, was an improper indirect reference to his decision not to testify. We do not see how the government can be faulted for this comment. It merely repeated the essence of the court’s standard instructions about what counts as evidence. The de- fendant’s statement that the 64 grams of heroin was for his personal use was in evidence. The government was entitled to respond by asking the jury to evaluate the credibility of that statement in light of all the evidence. This is not a case where the only supporting evidence could have come from the defendant himself, so that a com- ment on the absence of supporting evidence might be inter- preted as an indirect comment on his choice not to testify. Yes, Carswell could have testięed himself about this. But he also could have oěered evidence of paraphernalia indicating per- sonal use, yet there was none. Or perhaps he could have of- fered evidence from his partner or friends who knew he used large quantities of heroin himself. Again, no such evidence was oěered. The government was entitled to point out that the defendant’s self-serving “personal use” statement was not credible because it was not supported by other evidence and was contradicted by a great deal of evidence. Those argu- ments did not violate the defendant’s Fifth Amendment priv- ilege. As noted above, pointing out the lack of witness testi- mony or exhibits supporting the defendant’s theory does not violate the Fifth Amendment, at least so long as the defendant was not the only potential source of such evidence. Cf. United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968) (“The commen- tary focused on the evidence as a whole and did not empha- size [defendant]’s failure to testify.”). 20 No. 20-1036
Carswell also points to the government’s comments on judging his credibility: So he did say that the heroin was personal use. But evaluate that credibility. What is the credi- bility of that statement? And the Judge is going to give you an instruction on credibility. And it talks about a couple of concepts that I think are important for you to consider. One of them is whether the defendant has a reason to lie. Is there any bias, prejudice or other reason to lie or slant the statement? The truthfulness and accu- racy of the witness’ statement—and this is the testimony instruction—but Mr. Carswell’s statement in light of other evidence presented, and any inconsistent statements or conduct. So consider that statement in light of the evi- dence. Does it make sense? With all this evi- dence of intent to distribute, that statement is just not a credible statement. Carswell argues that these comments misstated the instruc- tions because the instructions applied only to witnesses and he did not testify. The jury, Carswell suggests, was likely con- fused by the government’s instruction that it should evaluate his statements to oĜcers during the search as though he had testięed. We disagree. First, juries often must evaluate the credibil- ity of statements made outside of court. Consider the numer- ous exceptions to the general rule against hearsay. If an out- of-court statement is oěered to prove the truth of the state- ment, the credibility of the statement is fair game. Although No. 20-1036 21
Carswell’s self-serving statement, that the 64 grams of heroin was for his personal use, was introduced by the government in this case, the statement served as the foundation for his en- tire theory of defense. The government was perfectly entitled to argue why that self-serving statement was not credible. Moreover, the judge specięcally instructed the jury about the defendant’s statement in this case: You have heard testimony and received evi- dence that the Defendant made a statement to law enforcement oĜcers. You must decide whether the Defendant actually made the state- ment and, if so, how much weight to give the statement. In making these decisions, you should consider all of the evidence, including the Defendant’s personal characteristics and the circumstances under which the statement may have been made. The government’s comments ęt right in with this instruction and did not comment indirectly on Carswell’s decision not to testify. 2. Carswell’s Lack of “Dope Sickness” Carswell argues next that no evidence supported the gov- ernment’s argument that he was not “dope sick” while speak- ing with oĜcers during the search, so that he could not have been a heroin user. We disagree. The combination of the agents’ observations of Carswell and Agent Schneider’s testi- mony about heroin users more generally was enough to sup- port the point made in argument. 22 No. 20-1036
3. The “Stash House” Comment During closing arguments, the prosecutor reviewed text messages from Carswell’s cell phones, including one saying that Carswell had “people in Chicago that want 2, but they only pay 27, if that’s cool. I’ll make it happen?” The prosecutor also argued that one exchange between Carswell and an uni- dentięed person indicated that Carswell’s brother was oper- ating a stash house connected to Carswell.7 The prosecutor said in closing: “Sounds like liĴle brother is operating a stash house that’s connected to Mr. Carswell, because Mr. Carswell provides the phone so the other guy can take care of it.” Cars- well argues that this “stash house” comment went beyond the evidence. Counsel are allowed to comment on and argue in- ferences from the evidence. The “stash house” inference strikes us as a fairly long stretch, but there was no objection. This minor and tangential point did not deprive Carswell of a fair trial. 4. Exaggeration of the Heroin Amount? Carswell complains that the government unfairly exagger- ated the quantity of 64 grams of heroin by a mistaken analogy and by seeming to misquote defense counsel’s argument. First, the prosecutor said: if you’re a casual user, why in the world would you buy 64 grams of heroin for $8,000? Doesn’t make any sense at all. That’s like if you’re a wine
7 “Also, on that phone number 18, incoming message, ‘I now’—prob- ably means [know]—‘I now that I was seeing if yo little brother had an E.’ ‘E,’ we know, means … an eighth of a kilogram of cocaine. Mr. Carswell says, ‘Let me check,’ and then he provides that phone number, apparently, his little brother.” No. 20-1036 23
drinker, going to the liquor store and buying, I don’t know, half a truck load or something, just because you might drink it in the next 10 years or so. Recall that the evidence was that Carswell possessed 64 grams of heroin, that a typical dose is 0.1 grams, but that some heavy users might use as much as three grams per dose. (We see no evidence at all that Carswell was such a heavy user.) Carswell says the government’s analogy with ten years of wine inĚated the amount of heroin he possessed by roughly sixty times the actual amount. We ęnd no reversible or plain error here. This is the kind of loose analogy (“I don’t know,” the prosecutor said) that jurors were unlikely to treat as precise. If a timely objection had been made, the judge might have been able to order the government to make it more precise. On the other hand, an objection demanding clarięcation or correction might have focused more aĴention on the analogy that it de- served. In the absence of an objection, the judge was not obliged to intervene on this rhetorical Ěourish. Finally, Carswell complains about this statement in the prosecutor’s rebuĴal: consider the surrounding circumstances, con- sider the context, consider the totality of the ev- idence to decide whether an individual simply intended to use this massive ball of heroin, as [defense counsel] describes it, or whether he was intending to distribute it. Carswell argues that the “massive ball” phrase misquoted de- fense counsel when it was too late to respond. Defense coun- sel had referred to it as a “ball of heroin” and as “a simple ball 24 No. 20-1036
of heroin.” We do not read the prosecutor’s comment as nec- essarily aĴributing “massive” to defense counsel, but that point is not decisive. Both counsel “spun” the undisputed quantity, one labeling it “simple” and the other “massive.” Counsel in closing arguments spin and sometimes misstate the evidence. That’s why this judge and virtually all other judges instruct juries to focus on the evidence and to discount what counsel say in closing. And when counsel misstate the evidence, a timely objection can lead to a quick ęx by the judge. The use of “massive” did not amount to a plain error that denied Carswell a fair trial or due process of law. The key evidence against defendant Carswell was seized under a proper search warrant, and he was convicted in a fair trial. The judgment of the district court is AFFIRMED.