In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-3048

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

H ENRY D. JOHNSON,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 04-CR-30046—Jeanne E. Scott, Judge.



    A RGUED JANUARY 7, 2009—D ECIDED O CTOBER 14, 2009




 Before P OSNER, R IPPLE, and R OVNER, Circuit Judges.
  R OVNER, Circuit Judge. In a multi-count indictment
the government charged Henry D. Johnson with over-
seeing a gang-related crack distribution operation in
Quincy, Illinois. After several participants in the opera-
tion testified against him at trial, a jury found Johnson
guilty on all counts, including a charge that he engaged
in a continuing criminal enterprise (“CCE”) between the
years 2000 and 2002. See 21 U.S.C. § 848. The district
2                                               No. 06-3048

court sentenced Johnson to life imprisonment. See 

  Johnson challenges his convictions and sentence in this
appeal. He argues that the court committed reversible
error in allowing the government to present evidence of
his participation in uncharged drug activities and other
bad acts. He also argues that the court failed to properly
instruct the jurors that they must unanimously agree
that Johnson organized, supervised, or managed five
or more people to find him guilty of the CCE offense.
Finally, Johnson argues—and the government agrees—
that his sentence should be vacated and his case
remanded for resentencing under Kimbrough v. United
States, 

(2007). We affirm Johnson’s convic-
tions but remand for resentencing.


                             I.
  Johnson was arrested after he sold marijuana and crack
to his next-door neighbor who, unbeknownst to Johnson,
was cooperating with law enforcement authorities. The
government eventually charged Johnson with engaging
in a CCE and with nine related conspiracy and drug
charges, all involving conduct that occurred between
2000 and 2002. After pleading not guilty, Johnson moved
to exclude from trial any testimony describing drug
activities or other bad acts that took place before 2000. The
district court denied the motion, ruling that evidence
of prior bad acts would be allowed to “show the rela-
tionship of other individuals to this defendant in an
attempt to prove the [CCE] charge.”
No. 06-3048                                             3

  At Johnson’s trial his former best friend, Nolan Nelson,
described at length how Johnson rose through the ranks
of a street gang known as the Black P-Stone Nation, or the
P-Stones, by selling crack and marijuana in Quincy. Over
Johnson’s objection Nelson provided details regarding
Johnson’s gang and drug activities from 1993 until 2000.
Specifically, Nelson testified that shortly after Johnson
moved from Joliet to Quincy in 1993, he encouraged
Nelson to join him with the promise that crack sales
there were especially lucrative. Nelson agreed and the
two became partners, sharing the profits from their drug
sales. Their partnership was interrupted in 1994 when
Nelson went to prison on drug charges, but when he
returned to Quincy in 1998 he and Johnson continued
to sell drugs together, with Nelson acting as Johnson’s
right-hand man. By this time other members of the
P-Stones had settled in Quincy, and Johnson was their
highest-ranking member. Together, Nelson and Johnson
provided crack to lower-ranking P-Stones who would
then sell it on the streets. According to Nelson, by 1998
Johnson had the final say on decisions, gave orders to
the other gang members regarding drug sales, and
meted out punishments (usually, beatings) when he
thought his directions were not being followed. During
this period Johnson began discussing with Nelson how
to better organize the gang to maximize their sales
and minimize their risk of being caught.
  Nelson also described at length Johnson’s drug opera-
tions during the period of the charged conduct: 2000
through 2002. He explained that in 2000 he and Johnson
had a falling out over whether the amounts of crack that
4                                             No. 06-3048

Johnson wanted to sell made their operation too risky.
In the wake of the disagreement, Johnson recruited a
new right-hand man, Derrick Phillips. That year Johnson
also was named a “Prince,” which is the second-highest
possible rank within the P-Stones hierarchy. Nelson
explained that throughout 2000 and 2001 Johnson ran
his crack-distribution operation out of his house in
Quincy. Johnson obtained powder cocaine from Kevin
Turner, a P-Stone Prince in Chicago who purchased
large quantities of cocaine from a Mexican source.
Throughout this period members of the P-Stones would
drive Johnson or travel with him by train to Turner’s
house, where they would purchase distribution quantities
of cocaine. They would then “cook” the powder cocaine
into crack. In 2001 Nelson accompanied Johnson on three
of these trips and twice watched Johnson and other
P-Stones cook powder cocaine into crack. Nelson testified
that he quit selling drugs for Johnson in December 2001
because he was worried about being caught, but said
that Johnson continued the operation throughout 2002.
  Several witnesses corroborated Nelson’s account of
Johnson’s drug activities during the period of the
charged conduct. Kevin Turner testified that he met
Johnson in 2000 and began supplying him with cocaine
a few months later. He confirmed that between 2000 and
2002 Johnson or his operatives would travel to Turner’s
house in Chicago every couple of months, purchasing
up to a quarter of a kilogram of cocaine at a time. Numer-
ous other trial witnesses, including Craig Abbey, Tomekar
Robertson, Joe Ball, and Anthony Buckner, testified that
they had accompanied Johnson to Turner’s house in
No. 06-3048                                              5

Chicago or made trips there on Johnson’s behalf. Johnson
would carry a minimum of $7,500 per trip, and some-
times up to $17,000. The witnesses confirmed that
Johnson or his operatives then would return to Quincy
where they would cook the cocaine into crack and sell it.
  Nelson and Ball testified that Johnson established and
enforced rules governing the P-Stones’ sales of crack in
Quincy. Johnson supplied crack to as many as eight lower-
ranking street dealers, including Buckner, Robertson, Craig
Abbey, Joe Abbey, and Derrick Phillips. At times they
worked on rotation, with each street dealer taking a
turn selling the available drugs. At other times they
worked on a profit-sharing system. Whoever had drugs
on a given day would put five bags into a pot, and when
all the bags sold, the contributors would split the pro-
ceeds. If the street dealers needed more drugs, they
would get them from Ball or Johnson himself. Johnson
had the authority to elevate members within the gang
hierarchy; Craig Abbey testified that in 2002 Johnson
made him a “general.” That position falls two levels
beneath Johnson’s role of prince within the P-Stones
structure.
  Over Johnson’s objection, the government solicited the
testimony of Mary Green, a self-described crack addict
who testified that she purchased drugs from Johnson
four or five times during the period of the charged con-
duct. The majority of Green’s testimony focused on the
years 1998 and 1999, when she was spending up to
$400 per day on crack. Green testified that she funded her
habit in part by stealing clothes, and that in 1998 Johnson
6                                              No. 06-3048

asked her to steal children’s clothes for him in exchange
for crack. She also testified that in 1999 Johnson gave
her crack after she built a dog pen in his backyard.
   The government also questioned Craig Abbey and
Anthony Buckner about Johnson’s illegal activities in the
years leading up to the charged period. Buckner testified
that in 1994 his brother and Johnson were “fighting” and
“shooting” at each other in connection with a drug feud.
He also explained that throughout 1999 he was pur-
chasing crack from Johnson, whose supplies were plen-
tiful. Buckner gave details about the quantities and costs
of crack he bought from Johnson for resale. Abbey testi-
fied that he joined the P-Stones in 1998 because he
had noticed that Johnson and Nelson wore expensive
clothes, shoes, and jewelry despite being unemployed.
He also testified that he started selling crack for Johnson
that year, giving details about the quantities he sold
and the prices he charged.
  At the close of evidence, the government and Johnson’s
attorney disagreed over how the jury should be
instructed with respect to the CCE charge. To find
Johnson guilty of a CCE offense under 21 U.S.C. § 848, the
jury had to conclude that Johnson organized, managed, or
supervised at least five or more people in committing a
series of underlying drug offenses. Accordingly, the
government proposed the following pattern instruction,
proffered as instruction 28:
    [T]o find that the defendant acted in concert with
    five or more persons, you must unanimously agree
    that the defendant organized, supervised or managed
No. 06-3048                                               7

    five or more persons in committing the series of
    offenses . . . . However, you do not have to agree on
    the identity of five or more persons with whom the
    defendant acted.
In response Johnson’s attorney asked for a special verdict
form requiring the jury to identify the five people refer-
enced in the proposed instruction. The government
argued that the jury is not required to agree
unanimously on the identity of the five people, then
moved to withdraw instruction 28. Johnson did not
object, but later he asked the court to modify the verdict
form for the CCE offense to require the jury to identify
the five people. The district court denied the request.
When the jury reconvened, the court instructed them
regarding the elements of the CCE offense. With respect
to the five people, the court instructed the jury that
“the Government must prove that the defendant orga-
nized, supervised, or managed them in accomplishing
the activities that contribute[d] to the continuing enter-
prise.” It also instructed the jury that its verdict on each
count “must be unanimous.”
  The jury found Johnson guilty on all counts, including
the CCE charge, which carried a statutory minimum
sentence of twenty years’ imprisonment and a maximum
sentence of life imprisonment. See 21 U.S.C. § 848(a).
A probation officer prepared a presentencing report
calculating the drug quantity for which Johnson should
be held accountable. Based on the trial testimony,
the probation officer determined that Johnson was ac-
countable for 1,472.58 grams of cocaine, 10,679.76 grams
8                                               No. 06-3048

of crack, and 22,680 grams of marijuana. Converting the
cocaine and crack amounts to their marijuana equivalent,
see U.S.S.G. § 2D1.1, cmt. n.10, the probation officer con-
cluded that Johnson was accountable for the equivalent
of 213,912 kilograms of marijuana.
  Johnson raised a pro se objection to the probation offi-
cer’s drug calculation, arguing that the 100:1 penalty
ratio for an offense involving crack versus powder
cocaine is unreasonable. At the sentencing hearing,
which took place before the Supreme Court decided
Kimbrough v. United States, 

(2007), the district
court did not expressly address this objection, but adopted
the probation officer’s drug calculation. Because the
offense involved the equivalent of 213,912 kilograms of
marijuana the court assigned a base offense level of 38, see

then added four levels because Johnson
was involved in a CCE, see 

and two levels
for possession of a firearm during the offense, see 

Applying the resulting total offense level
of 44 to Johnson’s criminal history category of II, the
court determined that the guidelines range was life impris-
onment. After considering various sentencing factors
under 18 U.S.C. § 3553(a), the court sentenced Johnson
to life imprisonment.


                            II.
A. Evidence of Prior Bad Acts
  On appeal Johnson argues that the district court errone-
ously allowed the government to solicit testimony from
No. 06-3048                                               9

numerous witnesses regarding Johnson’s drug and gang
activities in the years leading up to the period of the
charged conduct. Johnson argues that this testimony
should have been excluded under Federal Rule
of Evidence 404(b), because, he says, it created the imper-
missible risk that the jury would assume that he was
predisposed to commit the charged drug crimes. We
review the district court’s decision to admit evidence
under Rule 404(b) for abuse of discretion only. See
United States v. Jones, 

, 806 (7th Cir. 2006).
   Although Rule 404(b) prohibits evidence of prior bad
acts when it is admitted to show that a defendant has a
tendency to commit crimes or otherwise is of questionable
character, such evidence “may be admissible” to clarify
material issues other than character. Fed. R. Evid. 404(b).
The rule provides a list of those other material issues,
including criminal intent, motive, knowledge, identity,
or the absence of mistake. Id.; see also United States v.
Harris, 

, 807 (7th Cir. 2008). But Rule 404(b)’s
list is “not exhaustive,” United States v. Taylor, 

, 735 (7th Cir. 2008), and we have held that evidence
of prior drug transactions may be admissible to prevent
jury confusion about a witness’s relationship with the
defendant, 

“elucidate their ongoing business
relationship,” 

. Moreover, evidence
of prior bad acts can be introduced in conspiracy cases
to “show the formation of the conspiracy or the prior
relationship between conspirators.” United States v.
Prevatte, 

, 776 (7th Cir. 1994).
  Here the district court admitted evidence of Johnson’s
prior gang and drug activities principally to provide
10                                           No. 06-3048

the jury with background to explain Johnson’s leader-
ship role in the Quincy branch of the P-Stones and to
clarify the relationship between Johnson and his alleged
coconspirators. It also admitted the testimony to allow
the government to demonstrate Johnson’s intent to dis-
tribute drugs “based on his prior relationship with” the
witnesses and to show his knowledge of the drugs being
sold. Johnson argues that these reasons are “unhelpfully
vague” and that the court’s ruling opened the door to
a slew of highly prejudicial propensity evidence. He
objects in particular to Nelson’s lengthy testimony ex-
plaining the history of Johnson’s role in developing a
branch of the P-Stones in Quincy, to several co-conspira-
tors’ descriptions of pre-2000 drug transactions with
Johnson and references to his expensive clothes and
jewelry, and to Mary Green’s testimony that Johnson told
her to steal children’s clothes in exchange for crack.
  The district court properly permitted Nelson and other
co-conspirators to testify about their interactions with
Johnson in the years leading up to 2000. By pleading not
guilty to the CCE charge, Johnson put squarely at
issue whether he was in control of at least five other
people in an ongoing drug operation. See 21 U.S.C. § 848.
The evidence of his drug and gang activities before the
period of the charged conduct explained how Johnson
gained that control and why the lower-ranking gang
members were willing to take direction from him.
Nelson’s testimony explained how Johnson went from
dealing drugs with just one partner in the mid-1990s to
developing a network of gang members who sold drugs
at his direction by 2000. The testimony about Johnson’s
No. 06-3048                                              11

expensive clothes and jewelry explained the witnesses’s
motive to join the conspiracy and submit to Johnson’s
leadership. The testimony thus helped prevent jury
confusion about Johnson’s relationship with his
underlings and to explain how those relationships formed
into a conspiracy. See 

; 

.
  Recognizing the danger of a propensity inference, the
district court took steps to ensure that the jury
understood the permissible purpose of the prior bad acts
testimony. The court instructed the jurors to consider
the testimony “for the limited purpose of showing the
relationship” between Johnson and the witnesses, “[t]heir
interaction, the nature of their relationship, and to
show the intent of the defendant and his possible leader-
ship role with respect to the others.” (7/06/05 Tr. at 1451-
52.) The limiting instructions informed the jurors that
the prior bad acts testimony was relevant only to help
them understand how Johnson had risen to a leadership
role in the conspiracy, a question that was central to the
CCE charge. We presume that the jurors abided by the
limiting instructions. See United States v. Dennis, 

, 769 (7th Cir. 2007).
  Having concluded that the testimony from Nelson
and the other crack dealers regarding Johnson’s pre-2000
drug activities served a permissible purpose, we must
ask whether the testimony described events that were
“similar enough and close enough in time” to the charged
conduct, whether it was “sufficient to support a jury
finding that the defendant committed the similar act,” and
12                                               No. 06-3048

whether the testimony’s probative value outweighed
its possible prejudicial effect. United States v. Moore, 

, 499 (7th Cir. 2008); United States v. Ross, 

, 713 (7th Cir. 2007). All three of those criteria
are satisfied here. The witnesses described drug transac-
tions that were substantially similar to those that took
place in the charged period. All of the witnesses who
testified that they bought crack from Johnson or sold it
on his behalf in the years leading up to 2000 also
described their participation in similar crack transactions
during the charged period. The earliest of the prior drug
transactions took place six years before the period of the
charged conduct. We have held that a six-year gap is
sufficiently close in time to fall within the rule. See 

; United States v. Puckett, 

, 597
(7th Cir. 2005). The evidence was sufficient to support a
jury finding of guilt on the previous drug transactions: the
witnesses gave similar descriptions of the types and
amounts of drugs Johnson sold and of his trips to
Chicago to obtain cocaine. And the value of this testi-
mony in explaining how Johnson formed his operation
far outweighed any prejudicial effect of alerting the
jury that Johnson had sold drugs in the period
leading up to his ascension to the second-highest rank
in the P-Stones. There was nothing especially “emotional
or incendiary” about the witnesses’ descriptions of past
drug transactions, see 

(quotation
omitted), especially in the context of a long trial
detailing numerous similar transactions within the
charged period.
 The same cannot be said for Mary Green’s testimony,
which is by far the most troubling of the prior bad acts
No. 06-3048                                               13

evidence. Green testified that in 1998 Johnson asked her
to steal children’s clothes for him in exchange for crack.
She explained at some length how she stole the clothing
and described the small sizes she targeted. At oral argu-
ment counsel for the government struggled to articulate
what could possibly be the probative value of this testi-
mony, and in fact counsel conceded that the government
went too far in soliciting these details. We agree. The
prejudicial effect of testimony showing that Johnson had
a crack addict stealing clothes for small children
certainly outweighed what little probative value such
testimony may have added. It is difficult to see how this
testimony served any purpose other than to suggest that
Johnson is a bad person, and one with access to small
children at that.
  But the district court’s error in allowing this testimony
does not require us to reverse his conviction. See United
States v. Lee, 

, 649 (7th Cir. 2009) (noting that
Rule 404(b) error can be harmless); 

(same). Green’s testimony represents less than
30 pages out of over 1500 pages of trial transcript, a small
island in a sea of evidence of Johnson’s guilt. Multiple
witnesses testified at length regarding Johnson’s leader-
ship role in the Quincy drug operation. They testified
that they sold crack for Johnson throughout the
charged period, giving details about how he obtained
the crack and established procedures for the gang’s drug
sales. Johnson provided no evidence of his own to rebut
that testimony, and given the weight of the evidence
supporting Johnson’s conviction, we conclude with fair
assurance that the district court’s error in admitting the
14                                              No. 06-3048

Green testimony had no sway on the jury, and therefore
was harmless. See 

; 

.


B. The CCE Instructions
  The CCE statute is designed to target the “top brass” of
drug operations, United States v. Markowski, 

,
360-61 (7th Cir. 1985) (quotation omitted), and thus re-
quires the government to prove that the defendant man-
aged or organized at least five or more people in the
course of committing a “continuing series” of drug of-
fenses, 21 U.S.C. § 848(c). Johnson argues that his CCE
conviction must be reversed because, according to him,
the district court never instructed the jury that it had
to agree unanimously that Johnson managed, supervised,
or organized at least five other individuals.
  In challenging the jury instructions Johnson first
argues that the court erred in refusing to instruct the
jury that it must agree unanimously on the identity of
each of the five managed individuals. But we have
held that the jury is not required to agree on the identity
of the five people whom a defendant managed or super-
vised in the context of a CCE. United States v. Hardin, 

, 659-60 (7th Cir. 2000); United States v. Gibbs, 

, 538 (7th Cir. 1995); cf. Richardson v. United
States, 

, 824 (1999) (assuming, without decid-
ing, that a jury need not agree on the identities of the
five managed persons). Here the jury heard evidence
suggesting that Johnson managed or supervised more
than five people, including Nelson, Phillips, Buckner, Ball,
No. 06-3048                                              15

Robertson, Craig Abbey, Joe Abbey, and numerous un-
named street dealers. The CCE statute requires only
that the jurors conclude that Johnson managed at least
five from this pool; it does not require them to agree on
which five. See 21 U.S.C. § 848; United States v. Herrera-
Rivera, 

, 497 (7th Cir. 1994).
  Recognizing that his first argument is foreclosed,
Johnson argues that at the very least, the district court
should have given this circuit’s pattern CCE instruction,
which states: “[i]n order to find that the defendant acted
in concert with five or more persons, you must unani-
mously agree that the defendant organized, supervised
or managed five or more persons in committing the
series of offenses.” See Seventh Cir. Pattern Inst., “21
U.S.C. § 848, Continuing Criminal Enterprise—Five or
More Persons,” available at http://www.ca7.uscourts.gov/
pjury.pdf. The government proffered the pattern instruc-
tion at the initial jury-instruction conference as proposed
instruction 28, but later withdrew it. Johnson did not
object to the withdrawal, but he now argues that the
district court erroneously omitted the instruction. Ac-
cording to Johnson, without the pattern instruction we
cannot be sure that the jurors unanimously agreed that
he fulfilled the required managerial role.
  The parties dispute whether Johnson properly preserved
for appeal his challenge to the legal sufficiency of the CCE
jury instructions. Defense counsel did not object when
the government withdrew proposed instruction 28, but
Johnson argues that his counsel’s request for a
heightened unanimity instruction with respect to the
16                                                No. 06-3048

identity of the managed people demonstrates that at a
minimum he wanted the pattern instruction to be given.
If trial counsel’s requests sufficiently preserved the
issue, we would review the district court’s failure to give
the pattern instruction de novo, see United States v.
DeSantis, 

, 359 (7th Cir. 2009); if Johnson
forfeited the issue by failing to object, we would review it
for plain error only, see 

We need not decide
whether Johnson preserved the issue in the scuffle
over proposed government instruction 28, because his
challenge fails under either standard. See, e.g., United States
v. Garcia, ___ F.3d ___, 

, at *13 n.5 (7th
Cir. Sept. 1, 2009).
   In reviewing the sufficiency of jury instructions, we
look to the instructions as a whole to determine whether
“the jury was misled in any way and whether it had
understanding of the issues and its duty to determine
those issues.” United States v. Berndt, 

, 555
(7th Cir. 2008) (quoting United States v. Fawley, 

,
467 (7th Cir. 1998)). Jury instructions are sufficient if,
taken together, they convey the issues “fairly and accu-
rately.” United States v. Souffront, 

, 834 (7th
Cir. 2003) (quotation omitted). We would reverse only
if the instructions, viewed in their entirety, “mislead the
jurors to the litigant’s prejudice.” See United States v.
Smith, 

, 566 (7th Cir. 2000) (quotation omitted).
  Viewed as a whole, the district court’s instructions
were sufficient to ensure that the jury members under-
stood that they could find Johnson guilty of the CCE
offense only if they unanimously agreed that he managed
No. 06-3048                                               17

or supervised at least five people. The district court
informed the jury that to prove Johnson’s involvement
in a CCE the government was required to prove beyond a
reasonable doubt that Johnson organized, supervised, or
managed more than five people. The court emphasized
that if the government did not prove that element of the
CCE charge beyond a reasonable doubt, the jury must
find Johnson not guilty. The court also informed the
jury that its “verdict on each count, whether it be guilty or
not guilty, must be unanimous.” Although perhaps
the pattern instruction would have communicated the
unanimity requirement more clearly, the combination of
instructions sufficiently conveyed to the jury its duty to
decide unanimously whether the government met its
burden on every element of the charged offenses. Johnson
has not explained how the jury could reach a unanimous
verdict on the CCE charge without unanimously agreeing
on all of the required elements of the CCE offense. Accord-
ingly, we conclude that the court’s instructions fairly
and accurately informed the jury that it was required to
agree unanimously on every element of the CCE offense,
including Johnson’s managerial role. See United States
v. Palivos, 

, 257 (7th Cir. 2007).


C. Johnson’s Sentence
  The parties agree that Johnson is entitled to have his
sentence vacated and his case remanded so that the
district court may consider whether the disparate treat-
ment of crack versus powder cocaine under the guide-
lines applicable at the time he was sentenced renders
his life sentence unreasonable. Circuit precedent at the
18                                               No. 06-3048

time of Johnson’s sentencing precluded the district court
from questioning the 100:1 ratio of the weight of crack
cocaine to the weight of powder cocaine then used in
the sentencing guidelines. See United States v. Taylor,

, 746-47 (7th Cir. 2008); United States v. Miller,

, 275 (7th Cir. 2006). Johnson nonetheless
raised a pro se challenge to the ratio in his objections to
the presentencing report. The district court did not
address the challenge at sentencing, likely because to do
so at the time would have been “spitting against the
wind.” See 

. But after Johnson
filed this appeal the Supreme Court decided Kimbrough
v. United States, 

(2007), holding that the
district court may sentence a crack offender below the
guidelines range if it believes the 100:1 ratio results in a
greater sentence than is necessary under the sentencing
factors set forth in 18 U.S.C. § 3553(a). Because Johnson
preserved his challenge to the sentencing disparity, and
because nothing in the record tells us whether the
district court would have in its discretion imposed a
different sentence after Kimbrough, we must vacate John-
son’s sentence and remand for resentencing. See United
States v. Bush, 

, 728 (7th Cir. 2008); United
States v. Padilla, 

, 774-75 (7th Cir. 2008).


                             III.
   For the foregoing reasons, Johnson’s convictions
are A FFIRMED. His sentence is V ACATED and the case
is R EMANDED for resentencing.

                           10-14-09