author: CLAY, Circuit Judge. KETHLEDGE, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Jail ABERNATHY, Defendant-Appellant.
    No. 16-5314
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 8, 2016

      ON BRIEF: Mariah A. Wooten, Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Van Vincent, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
    Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
   OPINION

CLAY, Circuit Judge.

Defendant Jimmy Jail Abernathy appeals from the judgment of conviction and sentence entered by the district court on March 14, 2016, pursuant to Defendant’s conditional guilty plea to two counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c), and one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), wherein Defendant reserved the right to challenge the district court’s denial of his motion to suppress the evidence that the Nashville Police Department acquired from a search of Defendant’s residence. We have subject matter jurisdiction to adjudicate this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we REVERSE the district court’s order denying Defendant’s motion to suppress, and VACATE Defendant’s convictions and sentence. We REMAND for further proceedings consistent with this opinion.

BACKGROUND

1. Facts

The relevant facts of this case are straightforward, and not in dispute. On April 26, 2013, Detectives Patrick Oakley, Henry Particelli (“Detective Particelli”), and Anthony Heil of the Metropolitan Nashville Police Department traveled to 5809 Tru Long Court in Antioch, Tennessee (“the residence” or “Defendant’s residence”), where Defendant lived with his girlfriend. Once there, the Detectives searched the trashcans outside the residence looking for evidence connecting Defendant and his girlfriend to drug trafficking (“the trash pull”). Inside the trashcans, the Detectives found: (1) “Several Marijuana roaches with Marijuana residue inside;” (2) “Several plastic vacuumed packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue with T2 markings;” (3) “USPS certified mail receipts addressed to Jimmy Jail Abernathy 5809 Tru Long Ct. Antioch TN [sic];” (4) mail belonging to Defendant’s girlfriend; and (5) “One additional piece of mail addressed to ‘current resident’ ” at the residence. (R. 20-1, Search Warrant Affidavit, PagelD #44.)

On the basis of this evidence, Detective Particelli applied to Judge Thomas Edward Nelson of the Metropolitan Nashville Davidson County General Sessions Court for a warrant to search Defendant’s home and person. Detective Particelli submitted an affidavit in support of this warrant application (the “Affidavit”). The Affidavit contained form language stating that the Nashville Police Department had reason to believe that Defendant had violated the Tennessee RICO statute, the Tennessee money laundering statute, or the Tennessee Drug Control Act. The Affidavit also contained form language attesting that Detective Particelli had experience dealing with drug dealers, and detailing some common habits and practices of such dealers. Finálly, the Affidavit contained a “Statement of Facts In Support of Probable Cause,” which provided as follows:

This affidavit is made by Detective Henry Particelli, who has been a sworn law enforcement officer since 2010 with the Metro Nashville Police Department and is currently assigned as a narcotics investigator for the Central Precinct Crime Suppression Unit testified herein which • is ' based upon information received from other law enforcement officers, unless otherwise stated, which your Affiant believes to be true, and is as follows:
I have received information that the occupants of 5809 Tru Long Ct. Antioch, TN 37013 Davidson County have been and are currently engaging in illegal drug activity. I searched police and utility data bases and discovered a silver Ford Expedition TN tag F1301F is currently registered to Jimmy Jail Abernathy with the address of 5809 Tru Long Ct. Antioch, TN 37013 Davidson County. I have personally observed the said vehicle parked out front of the residence on multiple occasions. I also discovered a 2008 Pontiac Solstice TN Tag A7289H is registered to [Defendant’s girlfriend]. I have personally observed the said vehicle parked in the driveway of the residence. Webpro records states [sic] that [Defendant’s girlfriend] is the owner of the property since 2006.
Within the last 72 hours your affiant posed as a garbage disposal employee. I went to 5809 Tru Long Ct. Antioch, TN 37013 Davidson County and picked up the garbage container that was left at the curbside of the residence on the morning of scheduled garbage pickup. I then sorted through the garbage and found the following items that were seized as evidence and turned into the MNPD property room:
1. Several Marijuana roaches with Marijuana residue inside
2. Several plastic vacuumed packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue with T2 markings. T2 is a known strain of marijuana
3. USPS certified mail receipts addressed to Jimmy Jail Abernathy 5809 Tru Long Ct. Antioch TN [sic]
4. USPS certified mail receipts addressed to . [Defendant’s girlfriend],
5. One additional piece of mail addressed to ‘current resident’ at 5809 Tru Long Ct. Antioch, TN 37013 Davidson County
Based on the illegal drugs found in the waste container, your affiant wishes to search the premises of 5809 Tru Long Ct. Antioch TN [sic] and each person occupying said premises. In your affi-ant’s training and experience persons at locations where drugs are sold and or used many times conceal or secrete illicit items on their person to conceal them from., police detection. Your affiant has also learned in training and experience that many times subjects at locations involved in illicit drug activity are in possession of weapons and or have outstanding warrants for their arrest.

(Id. PagelD #43-44 (emphasis added).) Thus, although Defendant had a lengthy history of drug and weapons charges, that information was neither in the Affidavit, nor presented to Judge Nelson.

Judge Nelson granted Detective Parti-eelli’s warrant application on April 28,2013 (“the Warrant”). On May 3, 2013, the Nashville Police Department searched Defendant’s residence. The search revealed large quantities of cash, marijuana, cocaine, and firearms.. Thereafter, on January 29, 2014, a federal grand jury indicted Defendant in the Middle District of Tennessee on four drug and weapons charges.

II. Procedural History

Defendant moved to suppress the evidence that was seized when executing the Warrant, and also moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) to challenge the accuracy of certain representations made by Detective Particelli in the Affidavit. The district court denied the motion to suppress, determining that the Warrant was facially supported by probable cause. However, the district court granted the motion to conduct a Franks hearing.

At the Franks hearing, Defendant challenged Detective Particelli’s statement in the Affidavit that he had “received information that the occupants of 5809 Tru Long Ct. Antioch, TN 37012 Davidson County have been and are currently .engaging in illegal drug activity.” Detective Particelli ultimately admitted that, when he submitted the Affidavit, he had: (1) no information that “somebody [was] selling [drugs] out of [Defendant’s] residence;” (2) no direct evidence “that [Defendant] was trafficking drugs;” and (3) not seen Defendant “do anything connected to his house that might have to do with drugs,” (R. 117, Suppression Hearing Transcript, PagelD #553.) At the close of the hearing, the district court found that the statement violated Franks, and struck it from the Affidavit:

THE COURT: As to the Franks issue dealing with the first sentence of the search warrant affidavit ... I am finding that that is a misleading statement. It creates the impression that there is drug activity at the place to be searched. And there would be no reason to specifically have the occur pants and the name of the street location if you weren’t trying to create the impression that drug activity was going on in the house.
And so the result in looking at the affidavit, the Court needs to determine whether there is probable cause without that sentence.

(Id. PagelD #568-69.) The district court nonetheless upheld the Search Warrant, finding that the trash pull alone established probable cause:

THE COURT: I am finding that the trash pull alone raises probable cause and excise the first sentence, there is still probable cause in the affidavit search warrant based on the vacuum-packed, heat-sealed bags consistent to those used to package marijuana for resale containing marijuana residue with T2 markings. ,T2 is a known strain of marijuana, and it reflects it is within the last 72 hours. I am finding that the search warrant affidavit ere-ates probable cause for Tennessee Drug Control Act of 1989 violation based on the trash pull. And I am not finding that the first sentence was intentionally misleading. It simply is misleading. And whether it was reckless, intentional or inadvertent, it is misleading and inaccurate information in the context of the search warrant and should be excised in terms of determining whether there is probable cause in the search warrant affidavit and the search warrant itself.

(Id. PagelD # 569-70.)

After losing at the Franks hearing, Defendant pled guilty to all counts, but reserved the right in his plea agreement to appeal the suppression issue. On March 15, 2016, the district court entered judgment sentencing Defendant to 131 months in prison. On the same day, Defendant filed a timely notice of appeal.

DISCUSSION

I. Applicable Legal Principles

The Constitution’s Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. A “state search warrant being challenged in a federal court must be judged by federal constitutional standards.” United States v. McManus, 719 F.2d 1395, 1397 (6th Cir. 1983) (citing Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (I960)). “Probable cause is defined as ‘reasonable grounds for belief, supported by less than prima fade proof but more than mere suspicion.’” United States v. King, 227 F.3d 732, 739 (6th Cir. 2000) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). In assessing whether a warrant to search a residence passes muster under the Fourth Amendment, the “critical element ... is ... that there is reasonable' cause to believe that the. specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

“[T]o establish probable cause for a search, an affidavit must show a likelihood of two things: first, that the items sought are ‘seizable by virtue of being connected with criminal activity’; and second, ‘that the items will be found in the place to be searched.’ ” United States v. Church, 823 F.3d 351, 355 (6th Cir. 2016) (quoting Zurcher, 436 U.S. at 555 n.6, 98 S.Ct. 1970); United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (To establish probable cause, officers must demonstrate “a fair probability that contraband or evidence of a crime, will be found in a particular place.” (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))). “The nexus between .‘criminal activity’ and the item to be seized is ‘automatic[ ]’ when the object of the search is ‘contraband.’ ” Church, 823 F.3d at 355 (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L,Ed.2d 782 (1967)). “A police request to search for illegal drugs therefore needs to satisfy only the second showing for a valid warrant: ‘a fair probability’ that the drugs ‘will be found in a particular place.’” Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317).

“When determining whether an affidavit establishes probable cause, we look only to the four corners of the affidavit; information known to the officer but not conveyed to the magistrate is irrelevant.” United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010); United States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003). We do not consider “recklessly and materially false statements” in the affidavit that have been properly stricken during a Franks hearing. See United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (footnote omitted). Nor do we consider “stale” information. United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998). Whether information is stale depends on the “inherent nature of the crime,” United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988), and turns on several factors including: (1) “the character of the crime;” (2) “the criminal;” (3) “the thing to be seized;” and (4) “the place to be searched.” United States v. Hammond, 351 F.3d 765, 771-72 (6th Cir. 2003) (quoting United States v. Greene, 250 F.3d 471, 480-81 (6th Cir. 2001)). “In the context of drug crimes, information goes stale very quickly ‘because drugs are usually sold and consumed in a prompt fashion.’ ” Brooks, 594 F.3d at 493 (quoting United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009)). Information is considered stale and unreliable if it is impossible to tell from the affidavit when the circumstances giving rise to probable cause occurred. See United States v. Boyd, 422 F.2d 791, 792 (6th Cir. 1970).

“When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.”' Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

II. Probable Cause

A. Standard of Review

We have described the standard of review applicable to the denial of a motion to suppress as follows:

Whether a search warrant affidavit establishes probable cause to conduct the search is a legal question that this Court reviews de novo. United States v, Frazier, 423 F.3d 526, 531 (6th Cir. 2005). In reviewing a magistrate’s decision to issue a warrant, the Court must accord the magistrate’s determination ‘great deference.’ United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc). On appeal of a district court’s decision on a motion to suppress, although we must view the evidence ‘in a light most likely to support the decision of the district court,’ Frazier, 423 F.3d at 531 (citing United States v. Heath, 259 F.3d 522, 528 (6th Cir. 2001)), ‘when the district court itself is a reviewing court, ... this court owes the district court’s conclusions no particular deference.’ United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996).

Brooks, 594 F.3d at 492; see also United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008).

B. Scope of the Warrant

Defendant first argues that the Warrant was overbroad, because the Affidavit only showed evidence suggesting that Defendant possessed marijuana, while the Warrant was issued to find evidence of drug trafficking. We disagree.

Defendant’s argument is foreclosed by our recent decision in Church. There, the Nashville Police Department sought and received a warrant to search the defendant’s home for evidence of drug crimes using the same form language at issue in the Affidavit here. Church, 823 F.3d at 354. In support of the warrant, an officer swore out an affidavit averring that he had entered the defendant’s home with his permission, smelled recently burnt marijuana, and the defendant admitted ‘that he had been smoking in the house. Id. After receiving the warrant, the police searched the defendant’s home and found a large quantity of drugs and an illegal weapon. Id. On appeal, the defendant argued “that the search was unlawful because [the officer] specified in the affidavit that the police were looking for evidence of drug distribution ... whereas they had probable cause to search only for evidence of simple drug'possession....” Id. at 355. We rejected that argument, holding that:

[Djrugs are contraband, and.the police have a right to seize them, pursuant to a search warrant, wherever they are likely to be present. For purposes of this warrant, therefore, it did not matter whether the police suspected that Church possessed marijuana, dealt marijuana, or committed some other crime. See Zurcher, 436 U.S. at 555-56, 98 S.Ct. 1970. What mattered was that there was a ‘fair probability1 that marijuana was in the house. [Berry, 565 F.3d at 339] . [The officers]’s affidavit left no doubt of that probability..

Id. (emphasis added).

Here therefore, it does not matter whether the Affidavit established probable cause for marijuana possession, or marijuana trafficking; as ;long the Affidavit showed a fair probability that marijuana would be found in Defendant’s home, the Warrant was justified. Id. Accordingly, we hold that the Warrant-was not overbroad. We therefore turn to the question . of whether the trash pull evidence recovered from Defendant’s residence created a fair probability that drugs would be found in Defendant’s home.

C. Sufficiency of the Trash Pull Evidence

Defendant next argues that the Warrant was not supported by probable cause, because the marijuana roaches and T2-laced plastic bags the police recovered from Defendant’s garbage were insufficient to create a fair probability that drugs would be found in Defendant’s home. We agree. . ,

At the outset, we note that in evaluating whether the Affidavit provided the magistrate with sufficient evidence to create probable cause to issue the Warrant, we consider only the statements in the Affidavit that were not redacted during the Franks hearing. Franks, 438 U.S. at 155— 56, 98 S.Ct. 2674; Elkins, 300 F.3d at 649. The government has not challenged the district court’s ruling that Detective Particelli’s statement that he “received information that the occupants of 5809 Tru Long Ct. Antioch, TN 37012 Davidson County [had] been and [were] currently engaging in illegal drug activity” was recklessly and materially false in violation of Franks. Accordingly, the only proper evidence the Affidavit contained supporting probable cause was the “several” marijuana roaches and T2-laced plastic bags the police recovered from the trash pull at Defendant’s residence.

It is well established in this Circuit that drug paraphernalia recovered from a trash pull establishes probable cause to search a home when combined with other evidence of the resident’s involvement in drug crimes. See, e.g., Marcilis v. Township of Redford, 693 F.3d 589, 600-01 (6th Cir. 2012) (probable cause where police observed defendants engaging in controlled drug buys, and recovered drug items from a trash pull); Martin, 526 F.3d at 930, 937 (probable cause where informant named defendant as drug trafficker, defendant had prior drug convictions, and drug evidence was recovered from trash pull); Spikes, 158 F.3d at 918-19 (probable cause where informant told police that house was site of drug trafficking, police saw-drug trafficking activity at the home, and police recovered drug evidence from trash pull); United States v. Hill, 142 F.3d 305, 307 (6th Cir. 1998) (same).

We have not previously considered, however, whether and under what circumstances trash pull evidence, standing alone, can establish probable cause to search a home. In arguing that probable cause was established here, the government cites a line of Eighth Circuit cases that ultimately rely on United States v, Briscoe, 817 F.3d 906 (8th Cir. 2003). In Briscoe, the police applied for a warrant to search the defendant’s home based on forty “marijuana seeds and twenty-five marijuana stems” found in the trashcan outside of the home, as well as an intelligence analyst’s report regarding suspected narcotics trafficking, 317 F.3d at 907. The defendant argued that the analyst report cited in the affidavit supporting the warrant violated Franks, and that the marijuana seeds and stems, standing alone, were insufficient to create probable cause. Id. On appeal, the Eighth Circuit assumed arguendo “that the challenged statements in the search warrant application were false or made in reckless disregard for the truth,” but nevertheless held that “the marijuana seeds and stems recovered from Briscoe’s garbage were independently adequate to establish probable cause.” Id. at 907-08. Without. significant elaboration, the court reasoned that “not only does-the presence of discarded marijuana stems and seeds reasonably suggest that ongoing marijuana consumption or trafficking is occurring within the premises, but the simple possession of marijuana seeds is itself a crime under both federal and state law.” Id. at 908.

Defendant, by contrast, argues that this case should be controlled by our decision in United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006). In McPhearson, the defendant was arrested for simple assault on the front porch outside of his residence. 469 F.3d at 520. Incident to the arrest, the police searched the defendant’s pants pockets and discovered a quantity of crack cocaine. Id. Relying on the assault arrest and the cocaine they discovered in the' defendant’s pocket, the police sought and obtained a warrant to search the defendant’s home. Id. at 521. Inside, they discovered significant “quantities of crack cocaine and firearms.” Id. at 522. On appeal, we held that the warrant lacked probable cause, and vacated the defendant’s convictions. Id. at 525. As we explained:

The affidavit in this case did ho more than state that [the defendant], who resided at 228 Shelby Street, was arrested for a non-drug offense with a quantity of crack cocaine on his person. These aver-ments were insufficient to establish probable cause because they do not establish the requisite nexus between the place to be searched and the evidence to be sought. ‘[A] suspect’s mere presence or arrest at a residence is too insignificant a connection with that residence to establish that relationship necessary to a finding of probable cause.’ United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985) (quoting United States v. Flores, 679 F.2d 173, 175 (9th Cir. 1982)).
The government argues that [the defendant’s arrest outside his home with drugs on his person was sufficient to establish a fair probability that his residence would contain evidence of wrongdoing. The argument depends on an inference that ‘an individual arrested outside his residence with drugs in his pocket is likely to have stored drugs and related paraphernalia in that same residence.’ (Gov’t’s Br. 11.) This inference can be drawn permissibly in some cases, as evidenced by United States v. Miggins and the cases cited therein. 302 F.3d 384, 393-94 (6th Cir. 2002). But in all those cases, the affidavits contained an additional fact that permitted the magistrate to draw the inference that evidence of wrongdoing would be found in the defendants’ homes — namely, the independently corroborated fact that the defendants were known drug dealers at the time the police sought to search their homes. See, e.g., United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir. 1999) (finding it reasonable to infer that a known drug dealer would store evidence of his trade at home); United States v. McClellan, 165 F.3d 535, 546 (7th Cir. 1999) (‘[I]n issuing a search warrant, a magistrate is entitled to draw reasonable inferences about where the evidence is likely to be kept ... and ... in the case of drug dealers evidence is likely to be found where the dealers live.’). That fact was absent from the affidavit in this case. McPhearson was not a known drug dealer: his prior convictions were for property crimes, and the warrant on which the police arrested him was for simple assault. In the absence of any facts connecting McPhearson to drug trafficking, the affidavit in this case cannot support the inference that evidence of wrongdoing would be found in McPhearson’s home because drugs were found on his person.

Id. at 524-25 (emphasis added) (internal quotation marks altered) (footnote omitted).

As Defendant points out, we have also twice suggested in- dicta that mere trash pull evidence, standing alone, is insufficient to create probable cause to search a residence. See Brooks, 594 F.3d at 495 n.5 (stating that it “may well [be] correct” that drug “evidence from [] garbage bags [is] insufficient to establish probable cause to search the house because ... there [is] no way of knowing how much time elapsed between the smoking of the marijuana and placing the trash on the curb”); United States v. Harris, 6 Fed.Appx. 304, 307 (6th Cir. 2001) (“[A]s the district court found, the presence of [a] marijuana stem alone [is]probably insufficient to establish probable cause.... ”).

The footnote Defendant cites from Brooks discusses the Southern District of Ohio’s thoughtful analysis in United States v. Elliott, 576 F.Supp. 1579 (S.D. Ohio 1984). In Elliott, the police sought and obtained a warrant to search the defendant’s home based on a tip from a confidential informant, as well as “a quantity of partially smoked marijuana cigarettes and several stems from marijuana stalks” that were found in the defendant’s garbage. Id. at 1580-81. At a hearing challenging the warrant, the district court struck the portion of the affidavit dealing with the confidential witness tip, leaving only the trash pull evidence. Id. at 1581. The court concluded “that, the discovery of the discarded contraband, standing alone, is insufficient to support a determination of probable cause.” Id. The court reasoned that:

Despite the prompt action of the agent in seeking the warrant the day after the garbage was examined, the evidence in the garbage did not render the continued presence of marijuana probable. The affidavit does not indicate a large quantity of discard'ed contraband which might indicate its continued presence in the house. Instead, all we can ascertain is that at least two partially smoked marijuana cigarettes and several stems had left the home at some point in time. Furthermore, the nature .of the evidence is not such that its continued presence in the home is probable. To the contrary, this refuse is merely the waste product of past marijuana use. Moreover, it is unclear when that past use occurred, when the garbage was removed from the house or even when it was scheduled to be picked up. Even assuming weekly garbage collection, the contraband may well have been evidence of marijuana use five days prior to the examination of the garbage. Without corroboration, we cannot say that this supports a conclusion of the probable presence- of contraband on the day of the search.
We can conceive of the argument that the anonymous complaint and the affi-ant’s surveillance, despite their deficiencies, are corroborative of the contraband found in the garbage, and therefore permit the conclusion of the continued presence of contraband. Given the nature of the contraband found in this case, we find this argument unpersuasive. The waste products of marijuana use do not, of themselves, indicate any continuing presence of contraband in the home.

Id. at 1581. The court also expressed concern that to “conclude that such a single instance [of past marijuana use] provides sufficient probable cause for a search warrant would be to subject to a full and probing search, the home of a cocktail party host, whose guests, perhaps unbeknownst to him, indulge in illicit substances and discard the residue.” Id. at 1582 n.l.

After a thorough review of the record and relevant case law, we agree with Defendant that the evidence recovered from the trash pull here did not create a fair probability that drugs would be found in Defendant’s home. Our conclusion stems from two considerations.

First, a finding of probable cause here would be inconsistent with McPhearson. In McPhearson, the defendant had crack cocaine in his pocket, and the police arrested him and searched his pocket immediately after he stepped outside of his home and onto his porch. 469 F.3d at 520. These facts were included in the affidavit submitted to the magistrate. Id. at 521. The police thus had indisputable proof that drugs had recently been inside the defendant’s residence: the drugs were in his pocket, and he was inside the residence. Id. We nonetheless rejected the government’s argument that “an individual arrested outside his residence with drugs in his pocket is likely to have stored drugs and related paraphernalia in that same residence,” because there was no additional evidence that the defendant was or had been involved in drug crimes. Id. at 524-25.

The same reasoning is even more applicable here. The trash pull evidence Detective Particelli recovered from Defendant’s garbage suggested that a small quantity of marijuana might have recently been in Defendant’s residence. The connection between the recovered drugs and the residence is much more attenuated here than it was in McPhearson; while the officers could be absolutely certain that drugs had recently been in the McPhearson residence, there is no way of knowing with certainty that the trash pull evidence here: (i) came from Defendant’s residence at all; or (ii) if it did, that it was in the residence recently. If the crack cocaine found in the McPhearson defendant’s pocket did not create a fair probability that more drugs would be found in his home, a fortiori the trash pull evidence here did not create a fair probability that drugs would be found in Defendant’s residence. Cf. United States v. Brown, 828 F.3d 375, 382-84 (6th Cir. 2016) (holding that police lacked probable cause to search home even though drug dog alerted to defendant’s car, defendant had recently been detained for drug trafficking, and defendant had prior drug convictions, because there was an insufficient nexus between defendant’s drug activities and his home). Moreover, as in McPhear-son, the critical missing ingredient from the Affidavit was evidence that Defendant had been involved in past drug crimes. McPhearson, 469 F.3d at 525. Although Detective Particelli knew of Defendant’s criminal history, he did not include those facts in the Affidavit, and therefore they could not have contributed to the magistrate’s probable cause finding. Brooks, 594 F.3d at 492.

Second, the connection between the small quantity of marijuana paraphernalia recovered from Defendant’s garbage and his residence is too logically attenuated to create a fair probability that more drugs were in the residence. Although the trash pull evidence certainly suggested that someone in the residence had smoked marijuana recently, that fact alone does not create an inference that the residence contained additional drugs. Drugs by their very nature “are usually sold and consumed in a prompt fashion,” Frechette, 583 F.3d at 378, and so the more probable inference upon finding drug refuse is that whatever drugs were previously in the residence had been consumed and discarded. Further, it is impossible to tell when the marijuana roaches and plastic bags were put into the garbage. Depending on the household, the trash pull evidence could have been put in the garbage anywhere from one day to several weeks earlier, The inability to tell when drugs were last in the home diminishes any inference that drugs were still in the home. Elliott, 576 F.Supp. at 1581-82; see also Brooks, 594 F.3d at 495 n.5 (suggesting that Elliott “may well have been correct in invalidating the search because there was no way of knowing how much time elapsed between the smoking of the marijuana and placing the trash on the curb”); Boyd, 422 F.2d at 792 (holding that a warrant to search a residence lacked probable cause where the affidavit failed to specify when the affiant “smelled the odor of fermented liquor” on the premises, and therefore the court could not tell whether the evidence was stale).

Briscoe and the cases the government cites in urging that probable cause was present here are inapposite. In Briscoe, the- police found “forty marijuana seeds and twenty-five marijuana stems” in the defendant’s garbage. 317 F.3d at' 907. A large quantity of drug refuse in a residence’s garbage suggests repeated arid ongoing drug activity in the residence, and therefore creates a fair probability that more drugs remain in the hoirie. See Elliott, 576 F.Supp. at 1581 (“[A] large quantity of discarded contraband ... might indicate its continued presence in the house.”). Here, however, Detective Particelli only specified that “several” marijuana roaches and plastic bags were found iri Defendant’s garbage. The word “several” means “more than one or two brit not a lot,” indicating that the quantity of roaches and bags found in the trash pull was not large enough to suggest repeated or ongoing marijuana consumption in the residence. Black’s Law Dictionary, 1583 (10th ed. 2014).

Several of the government’s other cases are also distinguishable. In each of those cases, the warrant application either contained corroborating evidence tying the defendant to drug activity in addition to the trash pull evidence, or else the police, recovered more evidence from the trash pull than .was present here. See United States v. Thurmond, 782 F.3d 1042, 1043-44 (8th Cir. 2015) (probable cause established where, in addition to trash pull evidence, the warrant application specified that an informant had told police that drug activity was occurring at the residence, and police records revealed that the defendant had multiple prior drug arrests); United States v. Seidel, 677 F.3d 334, 338-39 (8th Cir. 2012) (probable cause established where trash pull evidence included a ledger noting pay-owe sheets for drug transactions); United States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (probable cause established where warrant application detailed defendant’s “several drug offenses” in addition to trash pull evidence); United States v. Roberson, 332 Fed.Appx. 290, 291-92 (6th Cir. 2009) (probable cause established where warrant application detailed prior drug conviction and neighbor’s tip regarding drug activity at the residence in addition to trash pull evidence). We need not disagree with any of these cases in order to find probable cause lacking here.

The government’s most relevant case is United States v. Allebach, 526 F.3d 385, 387 (8th Cir. 2008). In Allebach, the Eighth Circuit held that probable cause was established solely, on the basis of trash pull evidence that included: (1) “two plastic bags with cocaine residue;” (2) “two corners torn from plastic bags” (plastic sandwich bags with torn corners are often used to distribute crack); (3) “Brillo pads” (which are often used as filters for crack pipes); and (4) “a film canister with white residue.” Id. at 386 (footnotes omitted). Thus, like this case, the Allebach trash pull only uncovered a small quantity -of drug paraphernalia suggesting recent drug use within the home. Id. Allebach, however, contained no- analysis beyond a citation to Briscoe — where, as we have noted, there was much stronger evidence of ongoing long-term drug use within the residence. We therefore respectfully decline to follow Allebach here.

Finally, we are not - persuaded by the dissent’s citation to our decision in United States v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002). In Lawrence, we held that the district court did not abuse its discretion in declining to permit an informant “who had provided the police with information relied on in obtaining the search warrant” for the defendant’s home to testify at the defendant’s suppression hearing. Id. In one sentence, without any analysis, we concluded that “plastic bags containing wrappers with cocaine residue” found in the defendant’s trashcan “supplied sufficient probable cause for the search warrant.” Id. at 626-27. However, Lawrence did not discuss or even mention the quantity of drug paraphernalia recovered from the defendant’s garbage. As we have previously explained, this factor is crucial in determining whether probable cause has been established. Lawrence therefore does not control our analysis here.

Accordingly, we hold that the marijuana roaches and T2-laced plastic bags Detective Particelli recovered from the trash pull here were insufficient, standing alone, to create probable cause to search Defendant’s residence.

III. Good Faith Exception

A. Standard of Review

We review the applicability of the good faith exception to the Fourth Amendment’s exclusionary rule de novo. United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004); United States v. Leake, 998 F.2d 1359,1366 (6th Cir. 1993).

B. Analysis

The government argues that- even if the Warrant lacked probable cause, Defendant’s convictions should still be upheld under the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree.

In Leon, the Supreme Court held that the Fourth Amendment exclusionary rule does not apply when police officers rely in good faith on a warrant that is ultimately determined to lack probable cause. Id. at 913, 104 S.Ct. 3405. In announcing this rule, however, the Court made clear that “[d]eference to the magistrate ... is -not boundless.” Id. at 914, 104 S.Ct. 3405. In particular, the Court held that the good faith exception does not apply: (1) “if the magistrate or judge in issuing a warrant was misled by information in an affidavit” that violated Franks; (2) “where the -issuing magistrate wholly abandoned his judicial role;” (3) when the warrant is “basedi on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;’ ” and (4) when a warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Id. at 923, 104 S.Ct. 3405 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring)).

In the years since Leon, this Court and others have repeatedly held that the good-faith exception does not apply when “the supporting affidavit contained knowing or reckless falsity” in violation of Franks. United States v. Hammond, 351 F.3d 765, 773-74 (6th Cir. 2003) (declining to apply good faith exception where officer’s affidavit contained “falsehoods and half-truths” in violation of Franks); United States v. West, 520 F.3d 604, 612 (6th Cir. 2008) (declining to apply good faith exception where officer violated Fr'anks by “purposely withhfolding] information when he prepared his affidavit”); see also United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993) (“[U]nder Leon, a Franks violation is not excused.”); United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (“A warrant that violates Franks is not subject to the good-faith exception to the exclusionary rule.”); United States v. Vigeant, 176 F.3d 565, 572 (1st Cir. 1999).

Here, the district court determined that part of the Affidavit violated Franks. The government has not challenged this ruling on appeal. Nor has the government explained — apart from a conclusory assertion that “the judicial officer who issued the search warrant was not misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth,” (Opposition Brief at 25) — why we should nevertheless excuse Detective Particelli’s Franks violation here. Accordingly, we hold that the government cannot benefit from Leon’s good faith exception. Hammond, 351 F.3d at 774; West, 520 F.3d at 612.

CONCLUSION

For the foregoing reasons, we hold that the district court erred in denying Defendant’s motion to suppress the evidence seized from the search of his residence. Accordingly, the district court’s order denying Defendant’s motion to suppress is REVERSED. We VACATE Defendant’s convictions and sentence, and REMAND for further proceedings consistent with this opinion.

KETHLEDGE, Circuit Judge,

dissenting.

DISSENT

I respectfully disagree with my colleagues that the evidence from the trash pull did not establish probable cause. In the trash can, officers found several marijuana roaches, vacuum-sealed baggies containing ’ marijuana residue, and mail addressed to the defendant. The address on the mail was the address of the house later searched, which is reason enough to think the roaches and baggies came from that same house. Taken together, these facts created a fair probability that the officers would find contraband or evidence of a drug crime in the house. See United States v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002). In Laiwence, we held that the officers’ discovery of plastic bags containing cocaine residue in the defendant’s trash was enough to establish probable cause, even if the tip that triggered the trash pull should have been excised from the warrant affidavit. Id. at 626, 627. We should find probable cause here as well. I would therefore affirm the district court’s order denying the defendant’s motion to suppress.

      . A "roach" is what remains after a joint, blunt, or marijuana cigarette has been smoked. It is akin to a cigarette butt. See United States v. Shamaeizadeh, 80 F.3d 1131, 1134 (6th Cir. 1996).

      . The parties do not dispute that T2 is a known strain of marijuana.

      . In its "Summary of the Argument,” the government asserts in passing that the statement the district court redacted during the Franks hearing was "correct” and '-‘should not be found to be misleading.” (Opposition Brief at 17.) The government never developed this argument further elsewhere in its brief. Defendant is accordingly correct that the argument has been waived. See, e.g., United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are. deemed waived.” (quoting McPherson v, Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997))).

      . We do not hold that drag paraphernalia recovered from a trash pull can never establish probable cause to search a residence without additional corroborating evidence. For example, as we have noted, a particularly large quantity of drug refuse in a residence’s garbage may suggest repeated and ongoing drug use in the residence sufficient to -establish a fair probability that drags will be found inside. We merely hold that the evidence recovered from the garbage outside of Defendant's residence was insufficient to establish probable cause.

      . Although not relevant to the disposition of this appeal, we note that both the Nashville Metropolitan Council and the Memphis City Council have recently passed ordinances decriminalizing possession of small amounts of marijuana. See Nashville Substitute Ordinance No. BL2016-378 (Sept. 6, 2016); Memphis Substitute Ordinance No. 5626 (Oct. 4, 2016). In spite of these ordinances, marijuana possession remains illegal under Tennessee state law, see Tenn, Code Ann. § 39-17-418(a), and federal law, see 21 U.S.C. § 844(a), We have no occasion today to decide whether ordinances like those adopted in Nashville and Memphis might limit the ability of law enforcement to rely on evidence of marijuana possession in obtaining warrants to search private residences. .


source: Caselaw Access Project

author: HAMILTON, Circuit Judge.

license: Public Domain

text:
    Larry FRAZIER, Petitioner-Appellant, v. John E. VARGA, Warden, Respondent-Appellee.
    No. 15-2661
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided December 1, 2016

      Alan Michael Freedman, ‘Noah John Magrisso, Attorneys, Midwest Center for Justice, Ltd., Evanston, IL, for Petitioner-Appellant.
    Eldad Malamuth, Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appel-lee.
    Before KANNE, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Just days after his release from prison in 1995, petitioner Larry Frazier entered the apartment of a sixty-two-year-old woman and attempted to rob her at gunpoint. For his troubles, he received a bullet wound. Frazier was convicted of home invasion and sentenced to sixty years. The sentence was increased because of the victim’s age. After failing to obtain relief .from the conviction and sentence in the state courts, Frazier sought federal habeas corpus relief under 28 U.S.C. § 2254. He now appeals the district court’s denial of his petition. We affirm.

Frazier’s sole claim on appeal is that his trial lawyer was ineffective by failing to warn him he faced a potentially longer sentence based on the victim’s age. To reach the merits of Frazier’s claim, we would need to overcome several procedural obstacles, but one is decisive at the most basic procedural level. The one claim he pursues on appeal was not presented in the district court. “[Arguments in a federal habeas petition which were not raised to the district court are not properly raised for the first time on appeal.” Mertz v. Williams, 771 F.3d 1035, 1043 (7th Cir. 2014), citing Sanders v. Cotton, 398 F.3d 572, 583 (7th Cir. 2005).

I. Factual and Procedural Background

A. The Home Invasion

We accept the facts determined in the state courts. 28 U.S.C. § 2254(e)(1). At trial, Mary Holman testified that she lived alone in a street-level apartment in Calumet City, Illinois. On an early morning in September 1995, she had left the door to her home open as she carted in items from her car.

Frazier had been released recently from prison after serving a sentence for robbery. Seeing Holman’s open door that morning, he entered her ground-floor apartment with a coat over his hand. He told her, “I’m gonna shoot you, give me your money,” and ordered her to lie down. Holman replied, “I can’t, Mister, I got arthritis.” She also had no money to give him. Holman tried to stall Frazier by saying she had money stashed around the apartment. She warned Frazier that her hüsband — a husband she did not have— would be right back.

As Holman started rummaging through drawers,’ Frazier — also rummaging through drawers — found a .38 caliber revolver in a nightstand, He threatened Holman again: if she did not give him some money, he would shoot her. Finding a cookie tin full of pennies, Holman handed it over. Frazier took a look and dumped the contents of the tin on the floor. He again threatened to kill her if she did not come up with some real money.

Not knowing what else to do, Holman grabbed the gun with both hands and struggled with Frazier. The gun fired, but Holman was not injured. Still, she failed to wrest the gun from Frazier, who now held it to her head. With no other option, she pled for her life, claiming to know where her fictional husband kept the real money. Frazier gave Holman one last chance to search through a table for money, and he demanded her car keys. She tossed them his way, but he did not pick them up.

Holman then saw that Frazier was bleeding. Seeing her chance to escape, she ran from the apartment. Luckily, she found two policemen in a nearby alley and “just ran up to [th]em and fell in their arms.” The police found Frazier in Holman’s apartment. He was slumped over with a jacket pressed against his chest.

B. Frazier’s Conviction and Sentence

Frazier survived the gunshot and was indicted on numerous charges. He went to trial on charges of home invasion and residential burglary. Frazier was adamant that he was innocent. His pro se motion to dismiss the indictments asserted that he entered the apartment only after he heard a woman scream, and that he, having been shot after trying to help, was the real victim. In a pre-trial letter to the trial judge, Frazier asked for an “equal chance” to prove his innocence at trial. Frazier told his lawyer that he did not want.to pursue a plea because he “was innocent and wanted a jury trial so that he could tell his story.”

Still, Frazier’s fingerprints were found on the cookie tin. An analysis of his shirt revealed that' the gun was discharged from less than a foot away but not in contact with the shirt, corroborating Holman’s testimony. The jury quickly found Frazier guilty.

At sentencing, Frazier still maintained his innocence. The maximum term on the Class X home invasion felony was thirty years, 730 Ill. Comp. Stat. 5/5-8-1(a)(3) (West 1999), but that maximum was increased by thirty additional years because Holman was a vulnerable victim over sixty years old. 730 Ill. Comp. Stat. 5/5-8-2(a)(2), 5/5-5-3.2(b)(4)(ii) (West 1999). The judge sentenced' Frazier to an extended-term. sentence of sixty years. The judge emphasized Frazier’s recent release from prison and his extensive criminal history, which included convictions for multiple robberies.

C. Direct Appeal & State Post-Conviction Proceedings.

Frazier found no relief from the state courts. On direct appeal, the Illinois Appellate Court denied Frazier’s request for new counsel but initially granted him leave to file a supplemental pro se brief. See People v. Frazier, 325 Ill.App.3d 1172, 284 Ill.Dec. 672, 810 N.E.2d 325 (2001) (mem.). The court was then persuaded by the State that Illinois law did not permit an appellant to proceed simultaneously pro se and with counsel. The court struck the pro se brief without addressing the merits of any of the twenty-eight additional arguments that Frazier raised in the pro se filing. Id,

The brief filed by. Frazier’s appellate counsel, which the court did consider, raised a single claim: that the extended-term sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the victim’s age was not proven at trial. The appellate court affirmed, holding that any failure to present or prove the victim’s age was harmless error. 284 Ill. Dec. 672, 810 N.E.2d 325. The Illinois Supreme Court denied leave to appeal.

Frazier then filed a pro se petition for post-conviction relief in state court and amended it several times. These pro se filings asserted varied claims contesting the conviction, the enhanced sentence, and the adequacy of counsel. Frazier’s appointed counsel did not amend the pro se filing, and the trial court denied Frazier’s pro se petition because he did not establish the requisite insufficient performance and prejudice for a successful ineffective assistance of counsel claim. People v. Frazier, No. 1-09-1889, 2011 WL 9698914, *2, 2011 Ill. App. Unpub. LEXIS 2446, at *7 (Ill. App. 2011).

On appeal from the denial of post-conviction relief, Frazier’s appointed counsel raised a single claim: ineffective assistance of post-conviction relief, counsel for failure to “make any amendments necessary for an adequate presentation of Frazier’s ineffective assistance of counsel claim.” The court affirmed the denial of relief, noting the general rule that .there is no constitutional right to post-conviction counsel and finding that Frazier had not shown deficient performance under the Illinois Post-Conviction Hearing Act. Frazier, 2011 WL 9698914, *2-3, 2011 Ill. App. Unpub. LEXIS 2446, at *9-16.

D. Federal Habeas Corpus

After exhausting state court remedies, Frazier filed-a. pro se habeas petition in the federal district court. He listed four grounds for relief: (1) “failure to notify of sentence enhancement,” (2) “petitioner was sentenced to an extended term sentence on a factual finding by the Judge,” (3) “the appellate‘court ruled Apprendi violation on sentence and conviction ‘harmless error,’ ” and (4) “the ineffectiveness of trial counsel, appellate counsel, and post-conviction appellate counsel.” He also filed a separate motion to supplement his petition asserting “a free standing claim of Actual Innocence ... as well as Legal Innocence.”

Giving the pro se petition a flexible and generous reading, the district court interpreted it as presenting-two claims: an Ap-prendi claim and an ineffective assistance of counsel claim that in turn had three parts — “(1) trial counsel failed to bring a motion for a sentence reduction before filing the direct appeal; (2) appellate counsel allegedly failed to raise any other issues on direct appeal besides the Apprendi issue; and, (3) post-conviction trial counsel was ineffective for not raising the failures by trial and direct appeal counsel.” Frazier v. Acevedo, No. 11 C 7484, 2015 WL 4506717, at *2 (N.D. Ill. 2015).

The district court held that the state appellate court’s ruling on the Apprendi claim was not an unreasonable application of clearly established Supreme Court precedent. The court dismissed the claim for ineffective assistance of post-conviction relief counsel because generally there is no federal right to post-conviction . counsel. The court then found that Frazier had procedurally defaulted the two other claims for ineffective assistance of counsel. Frazier’s complaint that his trial lawyer did not move for a sentence reduction was never presented through a full round of state review, as required for federal habe-as relief.

The district court took a detailed look at whether the claim for ineffective assistance of appellate counsel for failure to raise issues in addition to the Apprendi issue had been fairly presented to the state courts. The issue turned on whether Frazier’s stricken pro se filings in his appeal fairly presented the claim. The district court ultimately concluded that the pro se filings did not present the issue fairly so that this claim was also defaulted. The court also found that the procedural default could not be excused. Finally, the court rejected Frazier’s attempt to excuse his default by showing actual innocence. We granted a certificate of appealability on the ineffective assistance of counsel claims based on the failure to seek a reduced sentence and to raise additional issues on appeal.

II. The New Claim on Appeal

With the help of able counsel in this appeal, and with ample time to evaluate the issues, Frazier has not pursued the issues on which we granted a certificate of appealability. The only claim presented to us on appeal is “that trial counsel was ineffective for failing to put Petitioner on notice he was eligible for an extended-term sentence because of the victim’s age.” On the merits, the premise of this claim is that Frazier would have been willing to plead guilty if he had known he faced the extended sentence for an older victim, though we must note that we see no indication in the record that Frazier would have been willing to do so or that the prosecutor would have offered a deal acceptable to him.

We do not decide the merits of the claim, however, because it was not presented to the federal district court. Regardless of whether a habeas claim was fairly presented 'or defaulted in the state courts, if an argument was not presented to the federal district court, it is forfeited in this court. Pole v. Randolph, 570 F.3d 922, 937 (7th Cir. 2009). “[Arguments in a federal habeas petition which were not raised to the district court are not properly raised for the first time on appeal.” Mertz v. Williams, 771 F.3d 1035, 1043 (7th Cir. 2014), citing Sanders v. Cotton, 398 F.3d 572, 583 (7th Cir. 2005); see also Dixon v. Chrans, 986 F.2d 201, 203 (7th Cir. 1993).

To avoid this critical problem, Frazier points out correctly that we should construe his pro se filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A “pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. Accordingly, pro se habeas petitions are “entitled to a liberal construction.” Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004), citing Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (finding cognizable claim when pro se petition “contains enough detail to describe a claim that is within the power of a federal court to address”). Even with the generous reading that we give pro se filings, though, this claim simply was not presented to the district court.

Frazier argues that ground one of his federal habeas petition presented his ineffective assistance of counsel claim to the district court. Ground one of the habeas petition read in its entirety: “Failure to Notify of Sentence Enhancement See Exhibits A; B, C, D” — “Petitioner was not appraised of, nor admonished of facts that would be used to enhance sentence to an extended term sentence, based on aggravating factors not presented to the jury, and proven beyond a reasonable doubt, and could not properly defend himself of all charges and facts.” Ground one made no reference to “ineffective assistance of counsel” — language that the petitioner knew well, as he showed in previous pro se filings and elsewhere in the federal petition itself. This circuit has “not routinely spared pro se litigants from the same waiver rules attorneys face,” and we see no reason to do so in this instance. See Dixon, 986 F.2d at 203 (7th. Cir. 1993). Even with a liberal construction of Frazier’s pro se habeas petition, we cannot find an ineffective assistance of counsel claim in a claim addressed so directly to the prosecution and judge.

That ground one was not a claim of ineffective counsel becomes even clearer upon consideration of ground four, which expressly asserted ineffectiveness of several of his lawyers, including his original trial counsel. Ground four read in full: “The Ineffectiveness of Trial Counsel, Appellate Counsel, and Post-Conviction Appellate Counsel” — “Trial counsel Tim Nance [sic] ineffectiveness occurred when he neglected to file a motion for sentence reduction, before filing a direct appeal, without consent. Appellate counsel for failing to argue anything other than Apprendi on direct appeal. Post-Conviction counsel for failure to amend Post-Conviction Petition, on trial counsel’s failure.” In the explicit claim for ineffective assistance of counsel, there is no reference to any failure to notify Frazier of a potential extended-term sentence.

Frazier also appended four exhibits to his petition — internet print outs of portions of Illinois Public Act 91-0953. Those attachments also made clear that Frazier’s claim about the failure to notify him of a potential extended-term sentence was made in reference to the prosecution’s responsibilities with respect to the indictment.

• For example, he referred to requirements such as “When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence,” and “if an alleged fact ... is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument.” Ill. Pub. L. No. 91-0953 (Feb. 23, 2001); see also 725 Ill. Comp. Stat. 5/111-3(5)(c) (West 1999); 725 Ill. Comp. Stat. 5/111-3(5)(c-5) (West 2001).

Frazier’s exhibits also highlighted the law governing the remedy he seeks. As a remedy for failure to prove at trial a fact “necessary to increase the punishment” beyond the maximum, the defendant should either be re-sentenced to the non-enhanced term or, “if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial.” Ill. Pub. L. No. 91-0958 (Feb. 23, 2001); see also 730 Ill. Comp. Stat. 5/5— 5-4 (West 2001). Those remedies are not consistent with a claim for ineffective assistance of counsel for failure to warn him of the risk of an extended sentence based on the victim’s age.

The exhibits Frazier provided to the district court point not to defense counsel but to the State: the prosecution’s failure to include its.intention to seek an extended-term sentence in the’ charging instrument, the prosecution’s failure to prove the victim’s age beyond a reasonable doubt at trial, and the' sentencing judge’s inappropriate reliance on the unproven fact at sentencing. None of the exhibits help Frazier link his ground one claim for failure to provide notice of the sentence enhancement and his ground four claim of ineffective assistance of counsel.

The district court correctly interpreted the ineffective assistance of counsel claim as distinct from the “notice” claim. In fact, •the district court did not shy away from reading multiple grounds into a single cognizable claim on habeas review. The district court correctly read grounds one through three of the habeas petition — (1) failure to charge or notify of possible enhanced sentence; (2) extended-term sentence premised on judicial fact finding; and (3) state appellate court’s unreasonable application of harmless error standard — as asserting a single Apprendi claim. 2015 WL 4506717, at *3-5. The district court then analyzed the three distinct claims for ineffective assistance of counsel, rejecting them for reasons that Frazier does not challenge on appeal. Id. at *5-10.

Our liberal construction of the pro se habeas petition cannot stretch a claim about the prosecution’s failure to give notice of a possible sentence enhancement to become a claim of ineffective assistance of trial counsel for failure to notify Frazier of the potential extended-term sentence. The exhibits attached to the petition make clear that the claim Frazier asserts with regard to notice is related to prosecutorial and judicial conduct, not ineffective assistance of trial counsel. The district court’s analysis only further undergirds this conclusion. Accordingly, the argument that trial counsel was ineffective for failure to notice petitioner of a potential extended-term sentence has been presented for the first time in a federal court on appeal, which is too late, so our analysis ends here.

We need not address whether Frazier’s stricken pro se. filings in his appeals were sufficient to present those issues fairly to the state courts because he does not pursue those issues here. We also need not decide whether Frazier could avoid procedural default on certain issues by claiming his post-conviction counsel was ineffective, relying on the exception to procedural default laid out in Trevino v. Thaler, 569 U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Again, he does not pursue the relevant issues on the merits.

The district court’s judgment denying habeas corpus relief is AFFIRMED.

      . In relying on Public Law 91-0953 as a source for the Illinois Compiled Statutes, Frazier’s exhibits actually highlight portions of the relevant statute that went into effect in 2001, after his indictment and trial.


author: WILLIAMS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan BRISENO, Defendant-Appellant.
    No. 15-2347
    United States Court of Appeals, Seventh Circuit.
    Argued September 9, 2016
    Decided December 2, 2016

      Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee,
    Kent R. Carlson, Attorney, Carlson & Associates, Chicago, IL, Hannah Valdez Garst, Attorney, Law. Offices of Hannah Garst, Arlington Heights, IL, for Defendant-Appellant.
    Before POSNER, MANION, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that during closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for government witnesses in an inappropriate fashion.

But Briseno failed to object at trial to any of these statements, and none was so egregious that the trial, judge should have intervened. Although earlier in the trial the government highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submitted to the. jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Finally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the jurors’ common sense.

In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of racketeering” but not “two or more specific acts.” We find no error in this instruction, as it mirrors our pattern jury instruction on the topic, and comports with our case law. So we affirm Briseno’s conviction.

I. BACKGROUND

Defendant Juan Briseno was indicted and tried for murder, attempted murder, and a number of other RICO-related crimes relating to his two-year association with the East Chicago, Indiana Chapter of the Imperial Gangsters Street Gang (IGsj. At the end of the government’s case-in-chief, Briseno moved for judgment of acquittal on all counts. The district judge granted Briseno’s motion only as to the counts relating to the attempted murder of Andreas Arenivas, who apparently became a target of the IGs after testifying against one of their members in an earlier criminal trial.

The trial against Briseno continued, and during closing arguments the government made a number of statements that concern the heart of Briseno’s, appeal. First, the government referenced various alleged facts connecting Briseno to the attempted murder of Arenivas. Second, the government contended that in order for Briseno to be not guilty, the government’s witnesses must have conspired to frame him and supply false testimony at trial. Third, the government emphasized that eight of its witnesses deserved to be believed.

After deliberating for two days, the jury convicted Briseno on nine of the twelve remaining counts: conspiracy to participate in racketeering, conspiracy to possess with intent to distribute at least five kilograms of cocaine and 100 kilograms of marijuana, five separate murders in aid of racketeering, attempted murder in aid of racketeering, and use of a firearm during a crime of violence. 18 U.S.C. §§ 846, ' 924(c), 1959(a)(1) & (5), 1962(d). The district judge sentenced Briseno to five consecutive terms of life imprisonment for the murders, two consecutive life terms for the conspiracies, a 120-month concurrent sentence for the attempted murder, and a 120-month consecutive sentence for the firearm count. This appeal followed.

II. ANALYSIS

Because Briseno failed to object to any of the government’s statements at trial that he challenges now, we review the statements for plain error. United States v. Sandoval-Gomez, 295 F.3d 757, 762 (7th Cir. 2002). We begin by examining whether the statements were improper when viewed in isolation; and if the answer is yes, we will review the statements alongside the entire record and ask whether the statements deprived Briseno of a fair trial. United States v. Common, 818 F.3d 323, 331 (7th Cir. 2016). Briseno must also show that the outcome of the proceedings would have been different had the statements not been made. Sandoval-Gomez, 295 F.3d at 762. A statement, while improper, can nevertheless be harmless when considering:

1) the nature and seriousness of the misconduct; 2) the extent to which the comments were invited by the defense; 3) the extent to which the prejudice was ameliorated by the court’s instruction to the jury; 4) the defense’s opportunity to counter any prejudice; and 5) the weight of the evidence supporting the conviction;*

Common, 818 F.3d at 333. In short, we will not grant Briseno a new trial “unless there was an’error so egregious that the district judge should have stepped in even though no objection was made.” United States v. Alexander, 741 F.3d 866, 870 (7th Cir. 2014). “Improper comments during closing arguments rarely rise to the level of reversible error.” Common, 818 F,3d at 331 (citation and internal quotation marks omitted).

A. Statements Relating to Acquitted Counts Not Erroneous

Briseno claims that the government improperly argued that he was guilty of attempting to murder Arenivas and of using a.firearm in that attempt, since the district judge had previously acquitted him on both counts. This presumes, of course, that the evidence of Briseno’s alleged involvement with Arenivas’s attempted murder had no bearing on the counts that remained following the judgment of acquittal. Cf. United States v. Bailin, 977 F.2d 270, 276 (7th Cir. 1992) (holding that the government was barred from “relitigating issues that were necessarily and finally decided in the defendant’s favor by reason of the jury’s partial acquittal on other counts” from a previous trial). But that is not the case here.

Although not expressly articulated, we understand Briseno to be invoking the law of the case doctrine, which “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (citation and internal quotation marks omitted). Although the law of the case doctrine is distinct from issue preclusion, insofar as the latter applies to rulings in different proceedings, and not simply different stages within the same proceeding, see generally Loera v. United States, 714 F.3d 1026, 1028 (7th Cir. 2013), we view the following issue-preclusion considerations as instructive — and have modified them to comport with the law of the case doctrine:

(1) the court cannot engage in hyper-technicality, but rather must examine the pleadings, evidence, charge, and other relevant material to determine whether a rational jury could have based its verdict on a different issue; (2) [the law of the case doctrine] only applies when a relevant issue [from the court’s earlier decision] is an “ultimate issue,” i.e., an issue that must be proven beyond a reasonable doubt; [and] (3) the defendant bears the burden of proof in proving that the ultimate issue was necessarily determined by [the court in its earlier decision].

United States v. Evans, 486 F.3d 315, 322-23 (7th Cir. 2007) (quoting United States v. Salerno, 108 F.3d 730, 741 (7th Cir. 1997)) (internal quotation marks omitted).

Briseno claims that the following five pieces of evidence should not have been referenced during closing arguments: (i) Briseno’s alleged statement of intent to kill Arenivas should their paths cross; (ii) Briseno’s alleged displeasure with a fellow IG for not pointing out Arenivas when they were all present at a party together; (iii) Briseno’s alleged presence at the scene of Arenivas’s- shooting; (iv) Briseno’s alleged remark that he caught Arenivas “slipping” and “lit him up”; and (v) the use of the same gun in the murder of Harris Brown (for which Briseno was charged). But Briseno has not satisfied his burden of establishing that these facts exclusively concern Arenivas’s attempted murder.

As the government correctly notes, much of the evidence relates to the IGs’ policy of attacking individuals who posed a threat to the gang’s drug-trafficking enterprise — including individuals who supplied unfavorable information to investigators and prosecutors — which in turn directly relates to the RICO conspiracy charge. Moreover, the evidence concerning the gun was relevant to Brown’s murder, a charge that was ultimately submitted to the jury. In short, the Arenivas attempted-murder charges were not re-litigated in violation of the law of the case doctrine. So the government did not act improperly by referencing the Arenivas-related evidence in its closing statements.

Even if the government’s statements were somehow improper, any error was harmless. As Briseno concedes, during closing arguments the defense informed the jury that it no longer needed to consider the attempted murder of Arenivas, and the verdict forms the jury was given did not include the two counts for which Briseno had been acquitted. In addition, the jury was specifically instructed to consider each charge separately, and there was ample evidence in the record connecting Briseno to the conspiracy and the murders for which he was convicted — in particular, eyewitness testimony from multiple individuals (some of whom were not IGs) and videotape from several of the crime scenes.

B. Harmless Error in Statements Involving Burden of Proof

During its rebuttal portion of closing arguments, the government stated:

So just to be clear, for defendant to be not guilty of this one, what would have to happen? What exactly — how would this play out so that the defendant is not guilty, that this is just a big conspiracy to frame him? Well, what it would have to be, that Garza, Joseph Torres and Andres. Lara all conspired or framed the defendant. They all get their stories together to frame the defendant. They then get Brandon Weaver, who’s not an Imperial Gangster, in on their conspiracy or Brandon Weaver just randomly picks up the wrong guy and it’s just the defendant’s bad luck and then somehow they get the stranger Joseph Haryasz in on the conspiracy to frame the defendant. ... And then, just out of bad luck, the defendant’s caught with a 30-round magazine, and out of bad luck, Jacob Davidovich happens to remember selling him the exact same type of gun as is the murder weapon. Ladies and gentlemen, that’s just too much of a conspiracy, and that’s too much bad luck for anyone to have.

According to Briseno, these statements improperly suggested that the jury would need to choose between two “stark, bright-line and absolute alternatives that might serve to distort the [government’s] burden of proof.” United States v. Marshall, 75 F.3d 1097, 1108 (7th Cir. 1996).

We agree that under our case law the government crossed the line by implying that the jury could not acquit Briseno while at the same time accepting as truthful the testimony of the government’s witnesses. The government concedes that it “imperfectly expressed” a bright-line argument, but believes that the argument simply concerned “what it would take to believe defense’s theory of the case.” A plain reading of the government’s statement does not support that interpretation.

After posing the question “So just to be clear, for defendant to be not guilty of this one, what would have to happen?,” the government did not present competing options and highlight the one that best suited its case. See United States v. Sandoval, 347 F.3d 627, 632 (7th Cir. 2003) (not improper to “suggest[ ] to the jury that it cannot believe the testimony of the officers and that of the defendant at the same time”). Nor did the government begin with the proposition that its witnesses had bed and ask what the more appropriate verdict would be, which would not have “preclude[d] the jury from acquitting [Briseno] for another reason, such as the government not meeting its burden of proof.” United States v. Common, 818 F.3d 323, 332 (7th Cir. 2016) (not improper to suggest that “[i]f the jury believed the officers were lying and framed Common, then the jury should acquit”).

Instead, the government began with the proposition that Briseno was not guilty, and indicated that such a finding could be reached only if the jury concluded that the government’s witnesses conspired to give false testimony. That was improper. Compare United States v. Cornett, 232 F.3d 570, 574 (7th Cir. 2000) (statement that the jury would have to find that the government’s witnesses- lied in order to acquit misstated the burden of proof because the jury could have believed the witnesses but still concluded that the government failed to prove guilt beyond a reasonable doubt), and United States v. Vargas, 583 F.2d 380, 386 (7th Cir. 1978) (improper to state, “if you find the defendant not guilty, I want you to write on there that all of those people lied”), with Marshall, 75 F.3d at 1107-08 (not improper to state that the jury should acquit if it believed that the witness lied because the government did not argue that disbelieving its witness was the only way to acquit).

This error alone, however, is not fatal for the government, since Briseno must also show that these statements deprived him of a fair trial in order to- prevail. As the government notes, the jury was repeatedly instructed before and after the presentation of evidence that the government bore the burden of proving Briseno’s guilt. And there was more than sufficient evidence of Briseno’s guilt, much of which involved credibility determinations as to the government’s witnesses. So the government’s improper statement was harmless error. See, e.g., Common, 818 F.3d at 333 (When “assessing the prejudicial effect of a prosecutor’s misstatement, we place considerable emphasis on the curative effect of jury instructions and the weight of the evidence.”).

C. Statements Involving Witness Credibility Not Erroneous

Briseno also - assails the government for improperly vouching for several government witnesses during closing arguments. A prosecutor may not vouch for a witness by personally endorsing that witness’s truthfulness, or by implying that facts not in evidence support the witness’s credibility. United States v. Wolfe, 701 F.3d 1206, 1212 (7th Cir. 2012). Such vouching does not, however, include “a prosecutor’s reminder to the jury of evidence presented at the trial that tends to show that a witness was telling the truth.” United States v. Alexander, 741 F.3d 866, 869-70 (7th Cir. 2014) (citation and internal quotation marks omitted).

Briseno contends that several separate groups of statements constitute impermissible vouching. First, he points to statements concerning four witnesses (David Almarez, Andres' Lara, Anthony Baldazo, and Galo Feliciano) in which the government asserted that, had the witnesses intended to lie, they would have made themselves more valuable by claiming to have witnessed first-hand certain of Briseno’s crimes. These statements simply appeal to the jurors’ common sense and are not problematic. See Alexander, 741 F.3d at 871 (finding no issue with the statement that “if [the witness] were going to lie, he would have done so on a larger, more persuasive scale”). So, too, with regard to the government’s assertion that if Vincent Garza had planned to lie about two murders and one attempted murder that occurred in rapid succession, he would have minimized his involvement or even pinned the murders entirely on Briseno.

Second, Briseno criticizes the following statement regarding Feliciano’s plea agreement:

Feliciano pled guilty to murder for being the driver. His plea deal is out the window if he lies. And if the judge catches him in a lie, he’s done and he’s doing life. Why would he protect those guys? Those guys weren’t in the car. Those guys had nothing to do with it.

It is well established that the government can “point out that its witnesses, under their plea agreements, are required to testify truthfully.” United States v. Clarke, 227 F.3d 874, 885 (7th Cir. 2000); see also, e.g., United States v. Spivey, 859 F.2d 461, 466 (7th Cir. 1988) (permissible for government to state that cooperation clauses in witnesses’ plea agreements “provided them with a motive to tell the truth”). Briseno contends in conclusory fashion that the government’s statement somehow implied that facts not before the jury lent credibility to Feliciano. Perhaps he is suggesting that Feliciano had an incentive for testifying truthfully that was not disclosed to the jury. In United States v. Edwards, for example, we found that the government had improperly vouched for a police officer by asking why the officer would risk his career by lying about seeing the defendant with drugs. We found that this rhetorical question invited the jury to speculate that “the government fires officers who lie under oath ... or prosecutes them ... and no evidence to that effect was presented.” 581 F.3d 604, 610-11 (7th Cir. 2009). But the discussion of the plea agreement plainly demonstrates that there was no comparable failure to disclose here.

Third, Briseno contends that the government erred in stating that Brandon Weaver “was not charged with anything. He’s not an Imperial Gangster. He has no problem with the defendant. He has no motive. He has no bias.” We see no problem with this statement, as it cites evidence—the absence of charges or IG affiliation and Weaver’s relationship with Briseno—from which truthfulness can be inferred. See Alexander, 741 F.3d at 870 (“[T]he prosecutor may point out the absence of specific evidence of a motive for the [witness] to lie....”).

Fourth, Briseno faults the government for stating that Joseph Haryasz acted like “a real good, honest citizen” when he called 911 after hearing gunshots, and that Haryasz was “just John Q. Citizen. I don’t know how old he was, 50s. Has a legitimate job at the Times. I doubt he even knows any gangbangers.” The government’s commentary on Haryasz’s purported civic virtues, when read in context, are not actionable, as they simply highlight the facts concerning Haryasz that the government believes exemplify his trustworthiness.

More concerning, however, is the government’s use of the first-person “I” in speculating about Haryasz’s association with “gangbangers.” The government made a similar statement regarding Marissa Harper’s testimony about being shot:

Do you think [Harper] was lying about the bullet through the car seat? I don’t know, you saw her arm with the through and through wound where she’s hit on one side and it comes out the other side of her arm. Obviously she wasn’t lying about that. I don’t know why she would lie about the car seat.

(emphasis added). In general, an attorney’s use of the first-person “I” is improper when paired with personal comments or an implication that the attorney possesses knowledge foreign to the jury, but is tolerable when paired with comments on reasonable inferences drawn from evidence. See United States v. Anderson, 303 F.3d 847, 856 (7th Cir. 2002).

Here, the government’s use of “I” regarding Harper and the car seat could be viewed as proper, to the extent the government was asking the jury to apply common sense to a theory (Harper having lied) that the evidence did not support. See id. (concluding that the statement “Well, maybe it doesn’t make sense to many people, but I am here to tell-you it happens” is a “generic statement which would be understood as asking the jury to apply common sense and to consider a competing inference, both of which are proper argument”). However, we struggle to find a permissible interpretation of the statement, “I doubt he even knows any gang-bangers,” which smacks of personal commentary, if not outright endorsement.

But we need not resolve this issue; even if one or both of the statements were improper, they, did not deny Briseno a fair trial. The statements were solitary and brief in nature, the district judge instructed the jurors both ,before and after closing arguments that attorney statements were not evidence, and.as noted above the vast weight of the evidence was against Briseno. So Briseno is not entitled to a new trial based. on the government’s statements during closing arguments.

Before turning to Briseno’s complaint about jury instructions, we pause to commend the ‘U.S. Attorney’s Office in the Northern District of Indiana for reviewing this case closely and for unilaterally committing to undertake additional closing-arguments training for its attorneys.

D. RICO Conspiracy Jury Instruction Not Erroneous

During the trial, the jury received the following instruction as to the RICO conspiracy count:

In order to find a “pattern of racketeering activity” for purposes of Count One, you must find beyond a reasonable doubt that the defendant agreed that some member or members of the conspiracy would commit at least two acts of racketeering....
[T]he government does not have to prove that any racketeering acts were actually committed at all, or that the defendant agreed to personally commit any such acts, or that the defendant agreed that two or more specific acts would be committed.

(emphasis added). Briseno views the instruction as internally inconsistent, insofar as it states that the government must prove an agreement as to the commission of “at least two acts of racketeering,” but not “two or more specific acts.” According to Briseno, this purported inconsistency misled the jury.

Before we reach the merits of Briseno’s argument, we must determine the standard of review. Briseno concedes that he failed to object at trial, but claims this amounted to forfeiture, which we review for plain error. United States v. Seals, 813 F.3d 1038, 1045 (7th Cir. 2016). The government, in contrast, argues that Briseno’s failure to object constitutes waiver, which precludes review except in very limited circumstances that have not arisen here. See United States v. Natale, 719 F.3d 719, 731 (7th Cir. 2013); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). Although we have not always used the terms waiver and forfeiture consistently, we have generally found forfeiture when a party negligently or accidentally fails to raise an argument, whereas waiver occurs when a party “intentionally relinquishes or abandons a known right.” Seals, 813 F.3d at 1045.

When jury instructions are involved, we have typically viewed an affirmative acceptance as a waiver. See, e.g., United States v. Smith, 818 F.3d 299, 302 (7th Cir. 2016); United States v, Ajayi, 808 F.3d 1113, 1121 (7th Cir. 2015). But we have also recognized that treating an acceptance of jury instructions as waiver can produce harsh results in cases where the defendant may have negligently failed to object. Ajayi, 808 F.3d at 1121 (discussing Natale, 719 F.3d at 729-30). So when defense counsel utters “nothing more than a simple ‘no objection’ during a rote call-and-response colloquy with the district judge,” forfeiture may be the more appropriate classification. Natale, 719 F.3d at 730-31.

Here, when asked if he had any objections to any of the jury instructions, defense counsel replied, “None at all, Your Honor.” And when asked if he was “in agreement with instructions 1 through 62,” counsel responded, “Yes, your Honor.” These answers do not strike us as “a calculated choice to stay silent,” United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010), and we see nothing in the record that hints at a motivation for forgoing the opportunity to object. But we need not decide the issue; even if forfeiture occurred, the RICO conspiracy instruction was not plainly erroneous.

For one, there was no “clear or obvious” error. The instruction mirrors our own pattern criminal jury instruction for racketeering conspiracy and is consistent with our case law on the subject. See United States v. Tello, 687 F.3d 785, 792-93 (7th Cir. 2012) (rejecting the premise that specific predicate acts of racketeering are required for a racketeering conspiracy conviction); accord United States v. Benabe, 654 F.3d 753, 777 (7th Cir. 2011); United States v. Glecier, 923 F.2d 496, 500 (7th Cir. 1991). Although, the difference between “at least two acts” and “two or more specific acts” may be a fine one, it does exist. For example, agreeing that members of a gang will engage in extortion in a certain general area, during a certain time frame, and of a certain scope constitutes a general agreement to act, despite a lack of knowledge or agreement as to the precise dates, locations, and individuals that the extortion will involve. See Tello, 687 F.3d at 796.

E. No Cumulative Error

In addition, Briseno has failed to demonstrate cumulative error, since he has failed to identify any error that individually or in combination with others deprived him of a fair trial. See United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (Cumulative error requires proof “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to havé rendered his trial fundamentally unfair.”); Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000) (“[C]ourts must be careful not to magnify the significance of errors which had little importance in the trial setting.”). So Briseno has failed to show that he is entitled to a new trial.

III. CONCLUSION

We AffiRM the district court’s judgment.