May 25, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 CR155 - Amy J.
St. Eve, Judge.
Wood, Chief Judge, and Bauer and Hamilton, Circuit Judges.
December 2013, a confidential informant ("CI")
informed the Bureau of Alcohol, Tobacco, Firearms, and
Explosives about Defendant Toby Jones, the leader of a
drug-distribution operation on Chicago's West Side. The
CI introduced Toby and his brother, Defendant Kelsey Jones,
to ATF Agent Christopher Labno, who posed as a firearms and
drug dealer. During several controlled drug purchases, Toby
negotiated a drugs-for-guns transaction with Agent Labno.
Eventually, Toby instructed one of his drug workers, Wesley
Fields, to complete the transaction; Fields was arrested
immediately after the exchange. Thereafter, Toby and Kelsey
engaged in a week-long effort to track down and kill the CI
who arranged the deal, resulting in two separate shootings.
In the later shooting, Kelsey fled the scene in a getaway car
driven by Defendant Mario Whitfield, whose counsel filed an
Anders brief that we consider later on.
and Kelsey were later arrested, charged, and convicted of
several crimes based on these events. Now, they both raise
challenges to those convictions; Kelsey also challenges his
sentence. We affirm.
was tried by jury and Toby proceeded to a bench trial. At
this joint trial, the government established the following
facts, which we view in the light most favorable to the
prosecution. See United States v. Resnick, 823 F.3d
888, 893 (7th Cir. 2016).
worked for Toby, selling crack cocaine and heroin to
customers. He used a cell phone, which Toby provided, to take
orders from and make deliveries to customers; he and Fields
worked the drug phone in alternating shifts. After Kelsey
completed a drug sale, he brought the money back to Toby.
Kelsey also packaged drugs for Toby and provided security to
him during drug sales. Particularly he provided security for
Toby and packaged the drugs that were sold to Agent Labno on
March 19, 2014. In addition, Kelsey allowed Toby to store
drugs in his apartment.
December 2013 and March 2014, the CI and Agent Labno met with
Toby six times to purchase crack cocaine with all purchases
taking place near the CI's apartment building located at
464 North Austin Boulevard, Oak Park, Illinois. All these
meetings were audio and video recorded. At several of these
meetings, Toby discussed the purchase of guns.
January 15, 2014, Toby told Agent Labno that he wanted to
purchase a handgun capable of holding 30 rounds of ammunition
in the magazine, but not to discuss guns over the phone. On
February 4, 2014, Agent Labno showed Toby pictures of guns
that he said he had for sale. When shown the picture, Toby
specifically asked Agent Labno about the cost of the Glock
with an extended magazine and extended clip
("Glock"). Agent Labno responded that he wanted
approximately $450 or "six jabs" of crack cocaine.
(One jab is a package that typically contains 10 to 12
individual use amounts of crack cocaine or heroin.) Toby
responded, "Yeah, " and told Agent Labno to bring
the Glock to him. He also told Agent Labno that he wanted to
purchase the Glock for himself and the Beretta pistol for
February 26, 2014, the CI and Agent Labno met with Toby to
conduct another controlled purchase of crack cocaine. There,
Toby confirmed his intention to purchase the Glock in
exchange for crack cocaine. Similarly, Toby, who was
accompanied by Kelsey confirmed that same intention to Agent
Labno at a controlled purchase of crack cocaine on March 19,
March 25, 2014, Agent Labno and the CI placed a recorded call
to Toby. The CI asked Toby if he still wanted to purchase
guns from Agent Labno. Toby responded, "Hell yeah I want
them." Further, Toby stated, "I just want that
[Glock], man." Agent Labno confirmed with Toby that the
price was six jabs for the Glock.
March 26, 2014, Toby sent a text message to Agent Labno,
explaining that he was sending Fields to conduct the
guns-for-drugs exchange. Agent Labno confirmed that the price
was six jabs of crack cocaine for the Glock. Toby responded,
the same time, Toby called Fields to meet him at Kelsey's
apartment to pick up the crack cocaine to pay for the Glock.
Toby gave Fields six jabs of crack cocaine and approximately
$450 in cash; he instructed Fields to purchase the Glock for
him and an additional gun for himself. He further instructed
Fields to bring the Glock "straight to him" after
Toby's instruction, Fields then met with Agent Labno and
the CI. Agent Labno presented Fields with multiple guns.
Fields picked out the Glock for Toby and the Beretta for
himself. He was immediately arrested after he gave the crack
cocaine and cash to Agent Labno in exchange for the guns.
an hour after Fields' arrest, the CI called Toby, asking
about his payment for arranging the drugs-for-guns
transaction. Toby told the CI that Fields had not returned
from the drugs-for-guns transaction, and he asked the CI when
he had last seen Fields. Toby assured the CI that he would be
paid for arranging the deal.
agents placed the CI in a hotel room where he was instructed
to stay until Toby was in custody. Despite these
instructions, the CI drove back to his apartment. During the
drive, the CI received an incoming call from Toby who sounded
agitated and repeatedly asked the CI about the CI and
Fields' whereabouts. The CI told Toby that he was driving
back to his apartment and that he had completed the gun deal
with Fields earlier that day, but he did not know Fields'
current location. Toby placed a total of 12 outgoing calls to
Fields and 15 outgoing calls to the CI in the hours after
Fields' arrest. Toby sent Fields a text message, telling
him to "Call me let me know you alright."
March 27, 2014, shortly after midnight, Kensha Barlow was
shot in his apartment located at 464 North Austin Boulevard,
Oak Park, Illinois (the CI lived in the same building, but in
the unit on the floor below). Barlow heard someone knock on
his door and asked who was there. A male voice responded:
"It's me ... You know who it is, open the fucking
door." Barlow looked through the door's peephole,
but the person in the hallway covered the peephole with a
finger. Once the other person removed his finger from the
peephole, Barlow saw two males standing in the hallway; he
did not know who either of the individuals were. Shortly
after, Barlow heard shots ring out, and he was shot in the
leg. (He later identified Toby as one of these two males.)
March 30, 2014, Kelsey called Marty Smith, one of his drug
customers, and asked Smith to come to his apartment. Smith
and the CI knew each other and lived in the same apartment
building. When Smith arrived at Kelsey's apartment, Toby
and Kelsey were there. Kelsey questioned Smith about the
CI's whereabouts and what kind of car he drove. Smith
told Kelsey that he had not seen the CI recently.
April 2, 2014, the CI's brother ("Mark") and
sister-in-law ("Christy") came to Chicago to stay
with the CI in his hotel room. Mark, Christy, and the CI
drove around the CI's neighborhood. Near the CI's
apartment building, the CI saw Kelsey wearing a black-hooded
sweatshirt. The CI observed that Kelsey "looked right
7:24 p.m. that evening, Kelsey called Smith and asked him if
there were any cameras in the parking lot outside of the
CI's (and Smith's) apartment building. At
approximately 8:55 p.m., the CI drove back to his apartment
with Mark and Christy. Once the CI parked his vehicle, Kelsey
exited a red minivan nearby, approached the CI's vehicle,
and fired three shots at ...