February 16, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 CR 970 - James
B. Zagel, Judge.
Flaum, Manion, and Kanne, Circuit Judges.
Following a sting operation, Timothy Hilliard was charged
with ten counts relating to numerous controlled sales of
heroin, a heroin-for-guns trade, and a gun and heroin found
during the execution of a search warrant at his home. At
trial, Hilliard asserted an entrapment defense; the jury
ultimately found Hilliard guilty on nine of the ten counts
but was unable to reach a verdict on the first count.
Hilliard now appeals, asking that we vacate his conviction
and sentence and remand for a new trial on the basis of
allegedly inappropriate testimony by a government witness at
trial, as well as inadequate jury instructions on entrapment.
For the reasons that follow, we affirm.
2012, Special Agent Chris Labno of the Bureau of Alcohol,
Tobacco, and Firearms ("ATF") and confidential
informant Henry "Hank" Romano made six
controlled purchases of heroin from Hilliard. Romano and
Hilliard had been friends for several years prior to the
investigation, and had used and distributed cocaine together
in the 1990s. Romano had introduced Labno, who was undercover
as Romano's "cousin, " to Hilliard. Prior to
each transaction, Labno gave Romano an audio- or
video-recording device to wear, and surveillance officers
were always present. Labno and Romano also recorded some
additional meetings with Hilliard. In December 2012, after
Hilliard traded a significant quantity of heroin for eight
guns and a sum of cash, Hilliard was arrested. Shortly
thereafter, law-enforcement officials recovered additional
heroin and a gun from Hilliard's residence during the
execution of a search warrant.
on the above, Hilliard was charged in a ten-count indictment.
The controlled purchases of heroin were charged in Counts One
through Seven as violations of 21 U.S.C. § 841(a)(1).
The heroin-for-guns trade was charged in Count Eight as a
violation of 18 U.S.C. § 924(c). Hilliard's
possession of the heroin and gun recovered during the search
warrant were respectively charged in Count Nine as a
violation of 21 U.S.C. § 841(a)(1) and in Count Ten as a
violation of 18 U.S.C. § 922(g).
parties stipulated at the start of trial that Hilliard's
criminal history included two prior convictions: (1) a 1997
conviction in Tennessee for delivery of cocaine, and (2) a
2002 conviction in Illinois for possession of a controlled
ATF agents testified at trial. ATF Special Agent Andy
Karceski had not been personally involved in Hilliard's
investigation or case, and testified as an expert in drug
trafficking on topics including: the typical quantities of
heroin involved in personal use and distribution, the manner
in which heroin is purchased and sold throughout the typical
distribution chain, and drug dealers' tactics to evade
law-enforcement detection (e.g., using coded words
and having legitimate day jobs). Agent Karceski also
explained that law-enforcement agents commonly use informants
to secure introductions to wholesale drug traffickers, who
otherwise would be leery about selling narcotics to new
customers. He testified that law-enforcement officials
monitor informants as closely as possible, often using
recording devices or debriefs, but that it is not feasible to
record or write reports on every conversation or interaction
Agent Labno's testimony about his work on the case, the
government published the recordings made of Hilliard during
the investigation,  and Labno explained his understanding of
the conversations. For example, during the controlled
purchase that took place on April 5, 2012, Hilliard had
mentioned his customers: "[L]ast time I had some, some
off-white shit ..., the footers likin' it but the
shooters didn't." Agent Labno had understood
Hilliard to be referring to his customers' responses to a
prior batch of heroin.
22, 2012, Agent Labno and Romano had met with Hilliard at a
bar in Evanston to discuss the exchange of guns for heroin.
During that meeting, Hilliard had explained how to run a drug
Well, just gonna give you a little lesson in, since you, you
know, you fuckin' around. Only fuck with the people you
fuck with cause when you go out, you fuck with other motha
fuckers, you put yourself at risk, first of all... . Second
of all, you never know the quality ....
Labno had understood Hilliard to be trying to teach Labno
about dealing only with trusted suppliers because of the
risks that could arise from shopping around. Hilliard had
Get caught up .... I learned the hard way, when my guys
don't have shit dude, I'll sit ... .I'll wait...
.Never let motha fuckers rush you, man ... .That's how
you get ... fucked up, bro .... I mean, the guys I'm
fuckin' with dude, pretty, pretty nice, pretty,
respectful loyal, motha fuckers are business men
[sic], you know what I'm sayin' .... [N]ot
all money ain't good money, man.
Labno explained that he had understood Hilliard to be saying
that when his regular supplier was out of heroin, Hilliard
would simply wait until his trusted supplier was ready rather
than looking for another source.
had further explained to Agent Labno the importance of
controlling addicted customers:
[Y]ou're playin' with opium dude, you're
dealin' with a different product then. When you're
dealin' with highly, cause they need it, cause
the[y're] sick ... .But that's why you always gotta
fuckin', you gotta, you gotta know how to run your shit.
Keep the number, change it on the[ir] motha fuckin ass, man
.... [Y]ou in control, bro, but if you start lettin' them
motha fuckers control you, dog ... [y]ou're in
fuckin' trouble man ....
had also discussed interactions with law-enforcement
officials: "Once they're onto you dude, you gotta
stop ... . (unintelligible) [H]ey, anybody say somethin'
'bout me and I hear, I see the police, nuh, I don't
sell shit... .That's how I do it, cause they gonna watch
you, you know what I'm sayin'." Agent Labno had
understood this to mean that Milliard would stop selling
drugs as soon as he believed he was on the radar of
in a recording from the day of his arrest, Hilliard had
referenced his prior conviction in Tennessee and the lessons
he had learned from it:
The only thing about Indiana, or talkin' like rural uh,
states. You get caught, you, they gonna hide you ... .You
won't see [daylight] ... .You see what happened to me in
Tennessee [referring to 1997 conviction] ... .Yeah, you, you
can ball, you can ball til you fall but if you get caught,
that's it ... .You gotta remember in Tennessee though,
informants get paid, crackheads get paid to snitch ... .The
only thing good about here is, you know what I'm
sayin', in other states, you know, they can't do that
entrapment shit here, you, you will beat that shit. But them
other states, that entrapment shit is, they can do it all
day. They can like actually set you up, you will still get
fucked up. Here, you will beat that shit like a motha fucker.
Labno had understood Hilliard to be discussing (ironically
enough) a mistaken impression that Illinois law-enforcement
officers could not employ sting operations to arrest targets.
cross-examination, Hilliard's defense counsel emphasized
Hilliard's and Romano's long friendship and the fact
that Agent Labno did not know what had been said between
Hilliard and Romano in unrecorded conversations either
outside Labno's presence or prior to the start of the
investigation. Agent Labno acknowledged that he was not aware
of Milliard's having sold drugs between 2007 and 2011,
even though Romano had been cooperating with the government
counsel also asked Agent Labno about uncharged drug
transactions-that is, whether there was evidence that
Hilliard had sold drugs to anyone other than Romano and
Q: ... Do you have any evidence of any other drug deals from
my client to anyone besides the government?
A: I don't-we were unable to, no.
Q: There was no video or any surveillance of my client
selling heroin to anybody else, true?
A: That's correct.
counsel later returned to the topic of uncharged drug dealing
Q: All right. In other words, there's a possible, at
least on May 31st of 2012 [the date of a controlled purchase
of heroin by the informant and Agent Labno], that you were
his only customer?
A: That's not my understanding, sir.
Q: Oh, I know it's not your understanding. I asked you
whether it was possible.
A: Again, anything is possible, but based - if you're
asking what I believe to be the case-
Q: Don't want your opinion.
A: Everything is possible, sir, yes.
Q: I'm not asking for your opinion. But as you sit here
today, on May 31st, 2012, you have any facts, any evidence
that Mr. Hilliard was selling to anybody but Mr. Romano?
A: Yes, I do.
Q: Tell me.
A: Based on the conversations that he was having with me, the
details he was explaining to me, the way he was teaching me
to be what he considered a better businessman, a better drug
dealer, he talked about selling to other people, he talked
about the things he did, he talked about how he operated.
Q: All right. Well, he could've been reaching back in his
experience from 2001 when he was dealing cocaine. It's
not that hard to talk with a drug dealer, someone who's
been in the business, is it?
A: Well, that's correct, but cocaine is different than
Q: That's all I'm asking, yes or no. But you
conducted some surveillance during these 9 months. Every time
you did a deal, you had cars ...