In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1307

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

D EM ARCO IRBY,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 06-10095—Michael M. Mihm, Judge.



    A RGUED D ECEMBER 3, 2008—D ECIDED M ARCH 11, 2009




 Before E ASTERBROOK, Chief Judge, and M ANION and
W OOD , Circuit Judges.
  M ANION, Circuit Judge. DeMarco Irby was indicted
for possessing with intent to distribute more than five
grams of crack in violation of 21 U.S.C. § 841(a)(1). After
a two-day trial, a jury found Irby guilty of that offense.
Irby appeals his conviction, challenging the sufficiency
of the evidence and the admission of several out-of-court
statements made by a confidential informant (“CI”).
We affirm.
2                                                   No. 08-1307

                                  I.
  In its opening statement, the government told the
jury that the evidence would show that an officer of the
Peoria, Illinois Police Department “received evidence” that
Irby was trafficking drugs from 805 East Republic Ave-
nue. The government then called Officer Chad Batterham
to testify in its case in chief. Batterham stated that
he received information from a CI that a person
named DeMarco was selling cocaine from the house at
805 East Republic.1 The CI then made a controlled buy
of a rock of crack cocaine from someone at that residence;
Batterham said that the CI identified the seller as
“DeMarco.” Batterham also testified that the CI later
identified the defendant from a photo lineup as the
person from whom he had bought the crack. Irby did not
object to Batterham’s recounting of any of the CI’s 2 out-of-
court statements.
  Officer Batterham then testified that he surveilled the
805 East Republic residence and observed the defendant
emerge from the house, feed a dog, and reenter the
house. After obtaining a search warrant for Irby and the



1
   Just prior to this testimony, defense counsel objected to the
government’s leading of the witness. The government then
gave Batterham an open-ended invitation to describe the
circumstances surrounding his surveillance of 805 East Repub-
lic. In his first sentence in response, Batterham testified that a
CI had informed him that a person named DeMarco was
selling cocaine from that address.
2
    The CI was not called to testify at trial.
No. 08-1307                                             3

house, Batterham returned to his surveillance post and
watched Irby leave the front porch and go inside the
house. A few minutes later, a car driven by Natale
Saraceno parked in front of the residence. Batterham
stated that he saw Irby emerge from the house, walk to the
passenger’s side of the car, and lean in the window. A
raid team swarmed the area and took Irby into custody
near the car. One of the arresting officers testified that
he saw Irby take a bag of marijuana out of his pocket and
drop it on the ground just before he was arrested. The
quantity of marijuana in the bag was worth about ten
dollars. A ten-dollar bill was found between the passen-
ger’s seat and door of the car.
  During the execution of the search warrant for the
residence, police officers discovered three surveillance
cameras around the front entrance of the house; two
monitors with live feeds from these cameras were
located in the master bedroom. A scanner set to the
Peoria Police Department’s frequency was found in the
same room. The police found a metal pan of loose mari-
juana on the bed in the master bedroom, along with
several sandwich bags containing marijuana. A plastic
grocery bag on the bed contained three digital scales,
several bags of marijuana, and another bag holding a
couple of bags of marijuana and fifty-nine baggies of
crack. The total weight of the crack was 16.9 grams. A
drug-trafficking expert testified that the quantity and
packaging of the crack was consistent with an intent to
distribute. Police found another digital scale near the
head of the bed. Irby’s state identification card was
found on a dresser in the master bedroom and his social
4                                               No. 08-1307

security card was found in a locked box in the bedroom’s
closet. On a shelf in the same room, police discovered
several articles of mail addressed to Irby at 805 East
Republic.
  Irby did not move for a judgment of acquittal under
Federal Rule of Criminal Procedure 29(a) when the gov-
ernment rested its case or at the close of all of the evi-
dence. The jury returned a verdict of guilty, specifically
finding that Irby possessed with intent to distribute
16.9 grams of crack. Irby did not move for a judgment of
acquittal under Rule 29(c) after the verdict was re-
turned. The district court sentenced him to 132 months’
imprisonment. Irby appeals his conviction.


                             II.
A. Sufficiency of the Evidence
  Irby argues that the evidence presented at trial was
insufficient to sustain his conviction on the charged
offense. When presented with a challenge to the suf-
ficiency of the evidence, we typically “will reverse a
conviction only when no rational trier of fact, viewing the
evidence in the light most favorable to the prosecution,
could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Knox, 

, 719 (7th Cir. 2008). While this standard is “highly
deferential” and “nearly insurmountable,” 

here, the defendant did not move for a judgment of
acquittal in the district court, the even more stringent
plain-error standard applies, United States v. Beaver, 515
No. 08-1307                                                

, 741 (7th Cir. 2008). In order to prevail, the
defendant must demonstrate that a manifest miscarriage
of justice will occur if his conviction is not reversed. 

way, “ ‘reversal is warranted only if the
record is devoid of evidence pointing to guilt, or if the
evidence on a key element was so tenuous that a convic-
tion would be shocking.’ ” United States v. Van Allen, 

, 819 (7th Cir. 2008) (quoting 

).
   In order to convict Irby under 21 U.S.C. § 841(a)(1), the
government was required to prove that he (1) knowingly
or intentionally possessed crack cocaine (2) with the
intent to distribute it (3) while knowing it was a con-
trolled substance. United States v. Campbell, 

, 605 (7th Cir. 2008). The government can prove the
first element by demonstrating that the possession was
either actual or constructive. 

is correct
when he says that he was never found in actual possession
of the crack. That leaves constructive possession, in
which case the government must prove Irby had owner-
ship, dominion, or control over the crack, thus estab-
lishing a nexus between him and the drugs. United States
v. Parra, 

, 761-62 (7th Cir. 2005). “Mere proxim-
ity to the drug, mere presence on the property where it
is located, or mere association, without more, with the
person who does control the drug or property on which
it is found, is insufficient to support a finding of posses-
sion.” United States v. DiNovo, 

, 201 (7th
Cir. 1975) (internal quotation marks and citation omitted).
  Before the raid, Batterham observed the defendant exit
and reenter the house after feeding a dog, which sug-
6                                                No. 08-1307

gested he was occupying the house. The presence of Irby’s
state identification card, social security card, and mail
addressed to him in the master bedroom demonstrated
that he was living in the room where the marijuana and
crack were found. Trial testimony established that the
defendant came from the house, walked to Saraceno’s
car, and attempted to sell marijuana, thus supporting
the inference that he was dealing marijuana from the
house. A jury reasonably could have inferred that the
marijuana the defendant took to the car came from the
master bedroom where the crack and marijuana were
found and which he was occupying. The fact that the
bags of marijuana and the loose marijuana on the bed
in the master bedroom were mingled with the baggies
of crack supports an inference that the crack and mari-
juana were owned or controlled by the same person.
This evidence was substantial enough to show a nexus
between Irby and the crack.3
  Regarding the intent to distribute element, a govern-
ment witness testified that the quantity of crack (16.9
grams) was inconsistent with personal use and that its
packaging in fifty-nine baggies was consistent with an
intent to distribute. The four scales found in the master


3
  Irby asserts that the unrebutted testimony of Tameka Edwards
and Jonathan Thomas that the marijuana and crack were theirs
(respectively) casts doubt on his possession of the crack. The
jury heard this testimony and obviously rejected it; on a
sufficiency-of-the-evidence challenge, we will not second-
guess the jury’s credibility determinations. United States v.
Brandt, 

, 917 (7th Cir. 2008).
No. 08-1307                                               7

bedroom also suggest that the crack had been prepared
for sale rather than personal consumption. This evidence
was sufficient to show that Irby intended to distribute
the crack.
  Irby does not contend that evidence was lacking on
the third element—knowledge that the crack was a con-
trolled substance. Even had he made this argument, the
surveillance cameras around the front entrance, the live-
feed monitors, and the scanner set to the police frequency
suggest that Irby wished to avoid detection by law en-
forcement and were sufficient to permit an inference
that he knew that the crack was a controlled substance.
Cf. United States v. Mendoza, 

, 752-53 (7th Cir.
2007) (the fact that a defendant required a buyer to go
through certain procedures before giving him drugs
suggested he was trying to avoid drawing the attention
of the authorities and allowed a reasonable jury to infer
the defendant knew he was distributing a controlled
substance).
  For these reasons, we easily conclude that the record
is not devoid of evidence of Irby’s guilt and that the
evidence on each element of the charged offense was not
so slight that his conviction is shocking. Accordingly,
his challenge to the sufficiency of the evidence fails.


B. Admission of the CI’s Statements
  1. Confrontation Clause
  The defendant argues that the admission of the CI’s
statements (concerning the identity of the person selling
8                                               No. 08-1307

crack from 805 East Republic) through Batterham’s testi-
mony violated his Sixth Amendment right to confront
witnesses against him. As we noted earlier, Irby did not
object to the introduction of the statements. The initial
question is whether this is properly characterized as a
waiver or a forfeiture. “Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known
right.’ ” United States v. Olano, 

, 733 (1993)
(quoting Johnson v. Zerbst, 

, 464 (1938)). Plain-
error review under Federal Rule of Criminal Procedure
52(b) allows us to correct errors which were forfeited in
the district court. 

However, if a right was
waived, there was no error and thus even plain-error
review is unavailable. United States v. Babul, 

,
500 (7th Cir. 2007). The record shows that Irby simply
failed to make a timely assertion of his right; he
said nothing to indicate intentional relinquishment or
abandonment. This means that there was only a for-
feiture, and we can proceed with plain error review.
  The plain-error standard comprises three requirements
and one discretionary component. United States v. Sawyer,

, 796 (7th Cir. 2008). The defendant must
show there was 1) an error 2) that was plain 3) that
affected his substantial rights. 

. If
these three conditions are met, we may exercise our
discretion to rectify the error but only if it “seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.” 

marks and
citation omitted). We often have stated that this last part
of the plain-error standard requires a “miscarriage of
No. 08-1307                                                  9

justice” before we will reverse. See, e.g., United States
v. Anderson, 

, 299 (7th Cir. 2006).
  The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const.
amend. VI. The Confrontation Clause applies only
to hearsay, see Crawford v. Washington, 

, 59-60
n.9 (2004) (citing Tennessee v. Street, 

, 414
(1985)), that is “testimonial” in nature, Davis v. Washington,

, 823-25 (2006). In Crawford, the Supreme
Court held that the Confrontation Clause enables a defen-
dant to bar the admission of testimonial statements of a
witness who did not appear at trial unless the witness
was unavailable to testify and the defendant had a
prior opportunity to cross-examine 

.
In Davis, the Court said that statements made in the
course of a police interrogation are testimonial “when the
circumstances objectively indicate that there is no . . .
ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events
potentially relevant to later criminal 

.
  Although the CI’s statements were probably testimonial
hearsay per Davis, Irby’s counsel may have had good
reasons for not objecting to their introduction; never-
theless, we will assume arguendo that their admission
was plain error.4


4
  We have previously suggested that plain-error review is ill-
suited for claimed confrontation-clause violations when there
                                                 (continued...)
10                                                  No. 08-1307

  Under the third prong of the plain-error standard, Irby
must demonstrate that his substantial rights were
affected, i.e., but for any confrontation-clause error the
outcome of the trial probably would have been different.
United States v. Prude, 

, 880 (7th Cir. 2007). We
conclude he cannot make this showing in light of the
following overwhelming evidence of his guilt. One of the
arresting officers testified that Irby took a bag of
marijuana out of his pocket and dropped it on the ground
just before he was arrested near Saraceno’s car, and a drug-
trafficking expert testified that this amount of marijuana
was worth ten dollars. The police video that was
received into evidence showed the bag on the ground near
Irby. The video also showed a ten-dollar bill resting


4
  (...continued)
may have been strategic reasons for a defendant not to object
to the admission of testimonial hearsay. United States v. Moon,

, 361 (7th Cir. 2008). In this case, had Irby raised
and the district court sustained a confrontation-clause ob-
jection to the hearsay statements, the result could have been
the live and potentially more forceful testimony of the CI from
the witness stand. Faced with this prospect, it may have been
to Irby’s advantage to let the statements come into evidence
through Officer Batterham. In addition, the defendant may
have decided that, after the first hearsay statement came
into evidence identifying Irby as the person who was selling
crack at 805 East Republic, it was best to let it and all similar
subsequent statements quietly pass before the jury rather
than calling undue attention to them while trying to put the
cat back in the bag. Because we decide the case assuming the
presence of plain error, we need not speculate further.
No. 08-1307                                              11

between the seat and passenger door of Saraceno’s car.
Officer Batterham testified that he observed Irby go in
and out of the house at 805 East Republic on two
separate occasions: one when he fed a dog and the
other just before the raid. The video showed that the
defendant’s state identification card, social security card,
and mail addressed to him at 805 East Republic were
present in the master bedroom. The video also showed a
pan of loose marijuana and several bags of marijuana
on the bed in the master bedroom, four scales, and a
grocery bag that contained several bags of marijuana
and fifty-nine baggies of crack. The three cameras
guarding the front of the house were on the video. The
monitors located in the master bedroom that were re-
ceiving a live-feed from these cameras were also on the
video, as was the scanner from the same room that was
tuned to the frequency used by the Peoria Police Depart-
ment. The bag of marijuana that Irby dropped before
he was arrested, the ten-dollar bill from Saraceno’s car,
Irby’s state identification card, social security card, and
mail addressed to him at 805 East Republic were admitted
into evidence, as were the marijuana, 16.9 grams of crack,
four scales, two monitors and scanner from the master
bedroom, and the three surveillance cameras.
  This array of evidence that was presented to the jury
was compelling proof that Irby was in the illegal drug
business and specifically that he possessed with the
intent to distribute more than five grams of crack. Because
Irby has not shown that his substantial rights were
affected by the admission of the CI’s statements, we have
12                                              No. 08-1307

no occasion to exercise our discretion to reverse under
the fourth part of the plain-error standard.


  2. Inadmissible Hearsay
  The defendant also claims that the district court erred
in admitting the CI’s statements because they were inad-
missible hearsay under the Federal Rules of Evidence.
Irby did not raise this objection at trial, so we review for
plain error. Even if these statements were hearsay not
covered by any exception and the district court erred
in admitting them, for the same reasons stated in our
discussion of his confrontation-clause challenge we
conclude that such error did not affect Irby’s substantial
rights.


                             III.
  Having found that the record is not devoid of proof of
Irby’s guilt and that the evidence on each element of the
charged offense was not so tenuous that his conviction
is shocking, we reject his challenge to the sufficiency of
the evidence. Because Irby has not shown that his sub-
stantial rights were affected by the admission of the CI’s
out-of-court statements, we need not exercise our dis-
cretion to disturb his conviction. We A FFIRM .




                            3-11-09