UNITED STATES v. HOWARD (2026)

Gary Howard was a confidential informant for the U.S. Department of Homeland Security who went rogue. While cooperating with narcotics investigations, he continued to deal drugs on the side. Howard formed what the district court described as a “symbiotic, corrupt relationship” with his handler, then-Special Agent Anthony Sabaini, who was later convicted of federal corruption crimes. See United States v. Sabaini, 161 F.4th 1036 (7th Cir. 2025). Their association unraveled when, to Howard's surprise, two drug deals turned out to be sting operations with him as their target. After a jury trial he was convicted of three drug crimes.

Howard appeals his convictions on numerous grounds, but he primarily disputes three orders. First, the district court granted Sabaini's motion to quash a subpoena, thus permitting him to avoid self-incrimination by not testifying in support of Howard's public authority affirmative defense. That defense, which Howard raised at trial, shields a criminal defendant from conviction for engaging in otherwise illegal activity if law enforcement authorized that conduct. Second, the district court denied Howard's motion to suppress evidence found during a warrantless search of his home and cell phone. The court held it was admissible under the inevitable discovery doctrine exception to the exclusionary rule. Third, the district court denied Howard's motion for a judgment of acquittal or new trial, concluding the trial evidence was sufficient to convict him.

His appeal of these rulings and other purported errors by the district court fall short. The district court did not abuse its discretion by quashing the subpoena of Sabaini, nor did that ruling preempt Howard's public authority defense or render his trial unfair. The evidence from Howard's home and cell phone would have been inevitably discovered through lawful means. And a rational trier of fact could conclude beyond a reasonable doubt that Howard was guilty of the crimes for which he was convicted. For these reasons, and because Howard's other challenges were waived or fail, we affirm.

I. Background

A. Facts

Howard worked as a confidential informant for Homeland Security Investigations (HSI), a branch of the U.S. Department of Homeland Security, providing tips to assist narcotics investigations in exchange for pay. He reported to then-Special Agent Sabaini. Though confidential informants agree not to engage in any unauthorized illegal activities, Howard continued dealing drugs on the side. Twice he was caught as the target of narcotics sting operations.

In January 2017, Howard participated in the sale of a small quantity of cocaine. The buyer was secretly a confidential informant for the Drug Enforcement Administration (DEA). When DEA agent Phillip Hahn entered Howard's information into their database, he discovered Howard was registered with HSI. Sabaini quickly caught wind. He told Hahn to stand down on investigating Howard, whom he described as his “golden goose.” Sabaini never disclosed this event to HSI. See Sabaini, 161 F.4th at 1041–42.

Howard's next criminal encounter with law enforcement occurred in July 2018. Howard tried to buy a large quantity of cocaine. The seller again turned out to be a DEA confidential informant and Howard was immediately arrested. While in custody, Howard told DEA Special Agent Anthony Anglada that he worked with Sabaini. Anglada then called Sabaini and said that Howard could “work it off if he cooperated.” Anglada also permitted Howard to speak with Sabaini. After Sabaini encouraged Howard to cooperate, Howard provided written consent to search his home and cell phone. He was released the same day. In the succeeding months the DEA asked for Howard's cooperation, but he declined.

B. Procedure

Howard's 2018 conduct was later presented to a grand jury, which returned a two-count indictment. In Count I, he was charged with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. He was charged in Count II with attempted possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1).

1. Pretrial

Before trial Howard moved to suppress his post-arrest statements and evidence seized from his home and cell phone. At an evidentiary hearing on the motion, Sabaini testified for Howard. The district court found Sabaini credible and suppressed Howard's post-arrest statements as coerced by a false promise of leniency and therefore involuntary and inadmissible.

But the district court did not suppress evidence found during the search of Howard's residence or cell phone. Special Agent Brandon Rodekohr testified he had been in contact with the federal prosecutor “before, during, and after the operation” about the “possibility of applying for a search warrant.” Rodekohr also said he would have applied for a search warrant had they not obtained Howard's consent. Based on that testimony, the district court denied this part of Howard's motion to suppress under the inevitable discovery doctrine.

After the suppression hearing, the government brought more charges. The grand jury's superseding indictment added co-defendant Fowobi George to Counts I and II for brokering the 2018 deal. It also added two counts against Howard related to his participation in the 2017 drug deal. In Count III he was charged with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Count IV charged him with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (2).

The superseding indictment followed Howard's partially successful motion to suppress, so he believed the government had retaliated against him. Howard thus moved to dismiss for vindictive prosecution. The district court denied the motion, explaining that timing alone does not prove prosecutorial vindictiveness or malice.

Howard also moved under Federal Rules of Criminal Procedure 8 and 14 to sever for trial Counts III and IV from Counts I and II. The district court denied this motion because all four counts are of the “same or similar character,” satisfying Rule 8, and any potential prejudice—which could be mitigated by jury instructions—was outweighed by the interests of judicial economy, as required by Rule 14. Howard planned to assert a public authority defense, the district court explained, so evidence relevant to his primary defense would apply to all counts.

The public authority defense is available to a defendant who engages in activity he “knows to be otherwise illegal but that has been authorized by the government.” Norweathers v. United States, 133 F.4th 770, 776 (7th Cir. 2025) (citation modified). This defense applies only when the government official had actual authority—not just apparent authority—to greenlight the defendant's conduct, and the defendant reasonably relied on that authority. Id. To assert his public authority defense, Howard subpoenaed Sabaini, seeking to elicit testimony that he had authorized Howard's drug transactions.

But Sabaini had his own problems. By this point, the FBI had determined that he had used his position with HSI “to steal money from investigative targets, embezzle HSI funds ear-marked for investigations, and enter a cash-for-protection relationship with a confidential source [i.e., Howard].” Sabaini, 161 F.4th at 1040. Relatedly, Sabaini had been charged with “filing false tax returns, structuring cash deposits to avoid detection, and concealing material information from the federal government.” Id. This last charge referred to his failure to disclose Howard's 2017 drug transaction to HSI. Sabaini was found guilty at his criminal trial and his appeal was pending when Howard subpoenaed him. Id.

Concerned with incriminating himself, Sabaini invoked the Fifth Amendment and moved to quash the subpoena. Given the motion's sensitive nature, the district court heard it ex parte. Present were the district judge, Sabaini, and Sabaini's counsel. Howard submitted 95 questions under seal as inquiries, some of which but not all the district court posed during the in-camera interview. From the interview, the district court concluded that Sabaini risked self-incrimination by testifying at Howard's trial, so it quashed the subpoena. At any rate, to the court, Sabaini's testimony would not have helped Howard. Sabaini had testified at his own trial and again at Howard's suppression hearing that he had not authorized the 2017 or 2018 deals.

2. Trial

This case went to jury trial in May 2024. On Counts I and II the government presented evidence of the 2018 drug sale. A DEA confidential informant contacted co-defendant George to see if he could broker a deal. A mutual friend named “Z” introduced George and Howard, who agreed to a single sale of 10 kilograms of cocaine for $280,000. The three met as planned in the parking lot of Z's furniture store. After this initial meeting, Howard entered his vehicle and aerial surveillance logged him driving to a single-family home and pulling into the garage. The landlord testified the house was leased to Howard and his wife. Howard then returned to Z's furniture store.

The jury saw text messages exchanged between George and Howard during this detour:

Howard: I'm picking my guy up cause I can't leave my stuff unattended with strangers and I only bringing half. I'm really not feeling this situation[.]

George: You don't have to leave, I have made arrangements to be here ․ I have made it easier, just do the ten as agreed, you don't have to go anywhere to inspect.

George testified “half” referred to $140,000, half the agreed price of $280,000. “[T]en as agreed” referred to the 10 kilograms of cocaine they agreed to sell Howard in exchange for $280,000. George's second and third texts meant the cocaine would be on site, so Howard would not have to leave his money and pick up the cocaine elsewhere.

Next, Howard texted: “Come to the car.” After George and the confidential source entered Howard's car, audio/video recording captured Howard saying, “It's a hundred and forty [$140,000]. It's enough for five [kilograms].” He also said, “I'll go grab the other hundred and forty [$140,000].” Howard then unzipped a backpack to show the cash. George testified that Howard handed the backpack to the confidential source. As the DEA surveillance team descended on the car, Howard exclaimed, “Police man f***ing police man.” George and Howard were immediately arrested.

The team searched Howard's car and found a backpack filled with $133,000 in cash. A search of Howard's residence yielded another $106,000 in cash, a loaded handgun with a spare magazine, an owner's manual for a currency counter, and a journal containing codenames listed next to amounts owed reaching in the tens of thousands of dollars. The government's expert testified that the journal was a drug ledger and opined that the items found are tools of drug traffickers.

On Counts III and IV concerning the 2017 events, the jury heard testimony that a confidential informant reached an agreement through a middleman to buy two ounces of cocaine from Howard for $2,400. The government played an audio/video recording of a meeting among those three. The informant asked, “You got my stuff?” to which a male voice answered, “Yeah.” The video did not depict the speaker. The informant testified that “my stuff” meant cocaine. But the jury heard conflicting testimony as to whether the male speaker was Howard or the middleman.

The confidential informant also testified that Howard passed drugs to the middleman, who passed them to her. She apparently gave $2,400 directly to Howard. Howard denied this when he testified, and the video did not record the alleged transfer.

An audio/video recording taped Howard instructing the confidential informant how to cook cocaine before “stretch[ing]” it by mixing in baking soda, as well as discussing the purity of Howard's cocaine and discount prices for future sales. Howard explained that his “set price is really 24 [$2,400]” but he could do “twenty-two fifty [$2,250].”

After the meeting, DEA Special Agent Hahn debriefed the confidential informant, collected recording devices, and seized the drugs. Lab testing confirmed it was cocaine, which was admitted into evidence and shown to the jury. The DEA surveillance team did not arrest Howard, nor did it recover the government money provided to the confidential informant for the deal.

The jury found Howard guilty on Count I (conspiracy to possess with intent to distribute cocaine), Count II (attempted possession with intent to distribute cocaine), and Count III (conspiracy to distribute cocaine) but not guilty on Count IV (cocaine distribution).

3. Post-trial and sentencing

Howard moved for an acquittal or a new trial under Federal Rules of Criminal Procedure 29 and 33. The district court denied Howard's motion, concluding there was sufficient evidence to support the jury's verdicts on Counts I, II, and III. The court also ruled that the not guilty verdict on Count IV was not necessarily inconsistent with the guilty verdict on Count III. Even if it was, inconsistent verdicts are not a basis to set aside a conviction, the court explained.

Howard's advisory Sentencing Guidelines range was calculated as 135 to 168 months. The district court sentenced him to 156 months' imprisonment, followed by three years of supervised release. Among other considerations, the court emphasized—based on the jury's finding—that Howard went “rogue” as a confidential informant, and that his partnership with Sabaini was a “symbiotic, corrupt relationship.”

II. Discussion

Howard appeals a litany of purported errors. He believes that quashing the subpoena of Sabaini deprived him of his right to put on a complete defense. Howard also disputes the district court's denial of his pretrial motions to suppress evidence, to dismiss for vindictive prosecution, and to sever certain counts from others for trial. He further challenges the denial of his mistrial motion, the sufficiency of the evidence in support of his convictions, and the reasonableness of his sentence.

A. Public Authority Defense

The Sixth Amendment includes the right to “compulsory process for obtaining witnesses in [one's] favor.” U.S. Const. amend. VI. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Id. amend. V. These rights can conflict when one person is compelled to testify in another's defense if that testimony is potentially self-incriminating. “When a subpoenaed witness invokes the Fifth Amendment, the privilege against self-incrimination generally trumps a defendant's Sixth Amendment right to compulsory process.” United States v. Newton, 76 F.4th 662, 670 (7th Cir. 2023).

But invoking the Fifth Amendment is not enough. The subpoenaed witness must show “reasonable cause to apprehend danger from a direct answer.” Ohio v. Reiner, 532 U.S. 17, 21 (2001). This is not an onerous standard; it goes unmet “only if the witness cannot possibly incriminate [him]self.” Newton, 76 F.4th at 670. An order granting a motion to quash a subpoena is reviewed for abuse of discretion. United States v. Hamdan, 910 F.3d 351, 356 (7th Cir. 2018).

The district court concluded that “it's not much of a stretch to think that Sabaini ․ might face jeopardy by giving truthful testimony.” The court was correct for three reasons.

First, for good reason, the right against self-incrimination survives during an appeal. “Because any post-conviction evidence could be used against a defendant if his conviction were to be overturned, the risk of coerced self-incrimination remains until the conviction has been affirmed on appeal.” United States v. Kennedy, 372 F.3d 686, 691–92 (4th Cir. 2004). The corrupt relationship between Sabaini and Howard was a major part of the government's evidence against Sabaini at his trial. Had Sabaini won his appeal and secured a new trial, his truthful testimony at Howard's trial could have been used against him.

Second, if Sabaini's truthful testimony at Howard's trial contradicted testimony from Sabaini's own trial, then Sabaini could face perjury charges. True, a witness cannot avoid testifying for fear of present perjury, as Howard notes on appeal. Still, a witness can avoid testifying for fear that his truthful testimony would expose past perjury in other proceedings. See United States v. Allmon, 594 F.3d 981, 987 (8th Cir. 2010) (“[T]hose courts that have directly addressed the issue have held that the Fifth Amendment is concerned with perjury arising from past testimony, not present testimony.”) (collecting cases).

Third, the government planned to impeach Sabaini with jail-recorded telephone conversations about a potential quid pro quo: Howard would write an affidavit supporting a shorter sentence for Sabaini in exchange for Sabaini testifying at Howard's trial. This created a reasonable fear that the government's cross-examination of Sabaini could result in a witness-tampering charge. See 18 U.S.C. § 1512(b), (c), (i)–(k); see also United States v. Eads, 729 F.3d 769, 779 (7th Cir. 2013) (affirming a § 1512(b) conviction based solely on jail-recorded telephone conversations); United States v. Chapman, 765 F.3d 720, 731 (7th Cir. 2014) (holding that the Fifth Amendment protects against self-incrimination during cross-examination).

The bar for finding that Sabaini had “reasonable cause” to invoke his right against self-incrimination—which requires only that Sabaini could “incriminate [him]self,” Newton, 76 F.4th at 670—was thus cleared. The district court did not abuse its discretion by granting Sabaini's motion to quash his trial subpoena.

To Howard, though, the district court disabled his public authority defense, rendering the trial unfair and warranting de novo review.

Instead, we conclude that the record does not support Howard's assertion. This defense survived the government's pretrial motions and became a central topic at the jury trial. Ample evidence was presented that Howard was not authorized to engage in a drug deal in July 2018. Sabaini's supervising agents had no notice of that drug sale, and they testified that had Howard been authorized, they would have known and likely been involved in surveillance. The sale also would have been recorded in Howard's confidential informant file, but it was not.

The jury also saw Howard's contract with HSI, in which he agreed not to “violate any laws without the prior authorization of [his] control agent,” and accepted that “authorized illegal activity will be conducted under the stringent control of HSI and requires direct contact with HSI control agent(s) prior to and after the conclusion of the authorized illegal activity.” Despite these commitments, there was no evidence of contact between Howard and Sabaini, Sabaini was out of town that day, and the two did not call each other in the week leading up to the July 2018 sale.

After the government rested its case, Howard testified in his own defense. He said Sabaini told him to check into George to see if he had large amounts of cocaine for sale. Howard submitted that his plan was to show he had the money to purchase the cocaine, but not to buy it, and then to contact Sabaini once he returned to see what was next.

At the close of evidence, the jury was instructed on Howard's public authority defense under the applicable Seventh Circuit's pattern jury instruction, 6.06.¹ Under that instruction, Howard had to prove by a preponderance of the evidence that he had reasonably relied on actual authority. But the jury concluded that he failed to carry his burden, so it returned guilty verdicts on Counts I and II.

In any event, it is unlikely Sabaini's putative testimony would have helped Howard. Sabaini had already testified twice that he had not authorized the 2018 deal. And even if Sabaini's testimony would have supported Howard's reasonable reliance on apparent authority, they would have corroborated the government's evidence that actual authority—the dispositive element of the public authority defense—was absent. See Norweathers, 133 F.4th at 776.

The record shows that Howard's public authority defense was fully ventilated and considered by the jury, and the district court's ruling did not deprive him of a fair trial.

B. Pretrial Motions

1. Motion to suppress

Howard next challenges the admission of evidence from the government's warrantless search of his home and cell phone. A district court's denial of a motion to suppress is a mixed question of law and fact. We review questions of law de novo and factual determinations for clear error. United States v. Watson, 171 F.4th 1012, 1015 (7th Cir. 2026).

The exclusionary rule prevents the admission of evidence resulting from an illegal search. Id. (citing Mapp v. Ohio, 367 U.S. 643, 655 (1961)). An exception, however, applies when evidence would have been inevitably discovered through lawful means. United States v. Haldorson, 941 F.3d 284, 293 (7th Cir. 2019) (quoting Nix v. Williams, 467 U.S. 431, 441–48 (1984)).

To benefit from the inevitable discovery doctrine, the government must show by a preponderance of the evidence that: (1) law enforcement officials had obtained, or would have obtained, an independent legal justification to conduct the search; and (2) those officials could have and would have pursued and obtained a search warrant. United States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012).

On the first requirement—independent legal justification—the district court concluded that probable cause existed to search Howard's home and cell phone. “Determinations of probable cause ․ are normally mixed questions of fact and law, but when ‘what happened’ is not at issue, the ultimate resolution of whether probable cause ․ existed is a question of law which we review de novo.” United States v. Dixon, 137 F.4th 592, 601 (7th Cir. 2025); accord Bufkin v. Collins, 604 U.S. 369, 384 (2025). The evaluation of probable cause asks whether the officer's understanding of the facts and relevant law was reasonable. Bufkin, 604 U.S. at 384–85 (citing Heien v. North Carolina, 574 U.S. 54, 61–64 (2014)). That calls for an objective and legally grounded inquiry. Id. (citing Kentucky v. King, 563 U.S. 452, 464 (2011)).

Our review of the facts supports the district court's finding of probable cause to search Howard's home. Consider the events from law enforcement's perspective: Agent Rodekohr testified at the evidentiary hearing that Howard had left the furniture store to get money for the drug transaction. Surveillance observed Howard travel to an apartment complex, then to a house, park in the garage, leave, and then drive back to the furniture store. Upon his return, Howard told George and the wired-up confidential informant, “I got ․ a hundred [$100,000]—this is only for half” and that he would “go grab the other hundred and forty [$140,000]”. After Howard's arrest, agents recovered a backpack containing a large amount of money from Howard's car. The landlord confirmed to law enforcement that the residence Howard had visited was Howard's home, which agents then secured in anticipation of obtaining a search warrant. These facts provide probable cause to believe evidence would be found in Howard's residence.

Probable cause also existed to believe evidence would be found on Howard's cell phone. During co-defendant George's post-arrest interview, he told agents he had communicated with Howard earlier that day about the planned transaction. Howard was seen holding a cell phone when he showed up for the deal at the furniture store. A legal search of George's phone uncovered text messages, WhatsApp messages, and phone calls between George and Howard coordinating the drug deal. For example, minutes before arrest, George texted Howard, “I have made it easier. Just do the ten as agreed. You don't have to go anywhere to inspect.” Howard replied once he returned to the furniture store from his residence, “Come to the car.” Howard also called George through WhatsApp at that moment, and the confidential informant's wire picked up the ringtone. These facts amount to probable cause to believe evidence of drug distribution would be found on Howard's cell phone. The district court thus correctly concluded that the officers had an independent legal justification for searching Howard's residence and cell phone.

On the second requirement of the inevitable discovery doctrine—obtaining a search warrant—the district court concluded that the agents could have and would have obtained a warrant to search Howard's residence and cell phone. Agent Rodekohr testified he had contacted the federal prosecutor before, during, and after the operation to discuss the possibility of applying for a search warrant. Rodekohr would have applied for a warrant, he said, had authorities not learned that Howard had already consented. The district court credited this testimony in finding the second requirement satisfied.

Compare this case with Pelletier. There, the FBI obtained involuntary consent to search the defendant's computer. 700 F.3d at 1117. The district court denied the defendant's motion to suppress in part based on the doctrine of inevitable discovery. This court affirmed because the “investigating officers,” in addition to having probable cause, “undoubtedly would have followed routine, established steps resulting in the issuance of a warrant.” Id. (quoting United States v. Marrocco, 578 F.3d 627, 639 (7th Cir. 2009)).

As in Pelletier, the investigating officers here searched Howard's home and cell phone after obtaining involuntary consent. Yet, in addition to probable cause, they had already begun to follow “routine, established steps” that result in the issuance of a warrant. Id. “[U]ndoubtedly,” they would have completed those steps but for the belief that they had obtained valid consent. Id.; see also Marrocco, 578 F.3d at 640 (“It would be unreasonable to conclude that, after discovering all of this information, the officers would have failed to seek a warrant.”). The district court did not clearly err here in finding that the officers could have and would have obtained a warrant, especially given our deference to the district court's findings on the reliability and credibility of the witnesses. United States v. Maxwell, 143 F.4th 844, 852 (7th Cir. 2025). Howard's motion to suppress was therefore properly denied based on the inevitable discovery doctrine.

Howard disagrees. In his view, Riley v. California announces a bright-line rule that investigating officers always need a warrant to lawfully search a cell phone's contents. 573 U.S. 373 (2014). As a result, he posits that the inevitable discovery doctrine does not help the government here.

To the contrary, as the district court observed, “Riley merely concluded that cell phone data does not fall within the search-incident-to-arrest exception to the warrant requirement.”² In Riley, the Court explained that the concerns underlying the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement—officer safety and destruction of evidence—are not advanced by searching data on an arrestee's cell phone. Id. at 385–86. But unlike the search-incident-to-arrest exception at issue in Riley, the inevitable discovery doctrine is an exception to the exclusionary rule, not the warrant requirement.

Even assuming Howard is correct that Riley announces a bright-line rule, it would not be violated here. The inevitable discovery exception does not make a warrantless search lawful. Instead, it assumes a search was unlawful and permits admission of the evidence anyway. Nix, 467 U.S. at 444. As the Court has explained, the rationale for the exclusionary rule is not advanced by keeping out probative evidence that inevitably would have been obtained through lawful means, including a search warrant. Id. at 443–45. For this reason, Riley does not bear upon the district court's denial of Howard's motion to suppress.

Accordingly, the district court correctly denied Howard's motion to suppress evidence discovered during the warrantless search of his home and cell phone.

2. Motion to dismiss for vindictive prosecution

Howard also claims the government engaged in vindictive prosecution by seeking and obtaining a superseding indictment for his 2017 conduct. Though prosecutors enjoy wide discretion over whether, when, and who to charge, their choice to prosecute must not be “pursued in retaliation for the exercise of a protected statutory or constitutional right.” United States v. Baldwin, 68 F.4th 1070, 1073 (7th Cir. 2023) (citation omitted). To prevail, Howard had to “show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self-vindication.” Id. A presumption of vindictiveness may arise in some situations, but “there is nothing inherently vindictive about adding a charge by superseding indictment if the government has evidence the defendant committed the crime.” United States v. Thomas, 520 F.3d 729, 735 (7th Cir. 2008). In reviewing the denial of a motion to dismiss, this court evaluates questions of law de novo and findings of fact for clear error. Baldwin, 68 F.4th at 1073.

The district court concluded Howard failed to show that malice motivated the superseding indictment. At the hearing on Howard's motion to dismiss, the court found no objective evidence (other than timing) of vindictiveness. That evidence alone is insufficient under Baldwin. Id. (“[T]he timing of a federal prosecution, alone, cannot change a legitimate exercise of prosecutorial discretion into a vindictive prosecution.”) (quoting United States v. Jarrett, 447 F.3d 520, 528 (7th Cir. 2006)). This ruling properly applied the substantive law and was not clearly erroneous.

3. Motion to sever

To Howard, the district court also erred by denying his motion under Federal Rules of Criminal Procedure 8 and 14 to sever for trial Counts III and IV (his 2017 conduct) from Counts I and II (his 2018 conduct). The government responds that Howard waived this argument by failing to renew his severance motion at the close of evidence. “[F]ailure to renew a motion to sever at the close of evidence results in waiver,” as this “is the moment when the district court can fully ascertain whether the joinder of multiple counts was unfairly prejudicial to defendant's right to a fair trial.” United States v. Tinsley, 62 F.4th 376, 382 (7th Cir. 2023) (citation modified).

Howard replies that he included this request in his post-trial motions. But that does not preserve a motion to sever. “The severance motion must be renewed at the close of evidence, not after the verdict.” United States v. Cardena, 842 F.3d 959, 980 (7th Cir. 2016). That “discourag[es] strategic choices by criminal defendants who would prefer to wait for a verdict before renewing their severance arguments, thus wasting valuable judicial resources.” Id. (quoting United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002)). Howard's motion to sever is thus waived on appeal.

C. Mistrial

Howard also contests what he characterizes as the district court's denial of his in-trial motion for a mistrial. During trial, the district court stated: “I won't accept an oral motion for a mistrial. I think you've got to file something in writing because it's important, okay.” Howard's counsel did not file a motion. In fact, the topic was not mentioned again until Howard's post-trial filings. In light of the district court's express notice, the government contends that Howard's inaction shows waiver by acquiescence.

Waiver occurs when a party intentionally relinquishes a known right. United States v. Flores, 929 F.3d 443, 447 (7th Cir. 2019). Such relinquishment may be found in a strategic omission. United States v. Hernandez, 44 F.4th 1053, 1058 (7th Cir. 2022). Inaction in the face of notice may be evidence of waiver by acquiescence. Id.

The government correctly maintains that Howard waived a mistrial motion later in the trial by not moving in writing. At the same time, Howard's challenge fails for a more fundamental reason—there is no district court ruling. Because no written motion was filed, that court did not decide the issue. Nor does Howard contest the district court's discretion to require a written motion. On appeal, therefore, there is nothing to review.

D. Sufficiency of the Evidence

Howard next challenges the sufficiency of the evidence to sustain his convictions on Count I (conspiracy to possess with intent to distribute cocaine), Count II (attempted possession with intent to distribute cocaine), and Count III (conspiracy to distribute cocaine). Our review is de novo, and we view the trial evidence in the light most favorable to the government, drawing all reasonable inferences in its favor. United States v. Sorensen, 134 F.4th 493, 497–98 (7th Cir. 2025). A conviction will be overturned “only if, after reviewing the record in this light, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” United States v. Anderson, 988 F.3d 420, 424 (7th Cir. 2021). We have sometimes “described this hurdle as ‘nearly insurmountable.’ ” Id. (quoting United States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018)).

1. Count I (conspiracy to possess with intent to distribute cocaine)

A drug conspiracy conviction requires sufficient evidence that “the defendant knowingly agreed, perhaps implicitly, with someone else to distribute drugs.” United States v. Coley, 137 F.4th 874, 880 (7th Cir. 2025) (citation modified). A case may be built on circumstantial evidence; indeed, it is often the only evidence available given the secretive nature of conspiracies. United States v. Morales, 145 F.4th 792, 796–97 (7th Cir. 2025). Yet, “[e]vidence showing only that two people are in a buyer-seller relationship is insufficient to prove a drug-distribution conspiracy.” Coley, 137 F.4th at 880–81.

From the evidence at trial, a rational trier of fact could have found beyond a reasonable doubt that Howard knowingly agreed with George to possess with intent to distribute more than five kilograms of cocaine. George testified that he and Howard reached an agreement: Howard would buy ten kilograms of cocaine for $280,000 at a specified location. Text messages between George and Howard before and during their meeting corroborate this agreement. When they met according to plan, an audio/video recording captured Howard saying he brought money for half the purchase, that he wanted to see the product, and that he would get the rest of the money later. Howard showed the money to the confidential informant. After Howard's arrest, agents found a backpack filled with $133,000 in his car. During a search of Howard's home, agents found what the government's expert described as tools of the drug-trafficking trade—a loaded firearm, more than $106,000 in cash, and a notepad that had indications of being a drug ledger. Viewing this evidence in the light most favorable to the government, and construing reasonable inferences in its favor, the evidence is sufficient to sustain Howard's conviction.

For all that, Howard posits that he did not reach an agreement with George. By insisting on seeing the product first, Howard believes he created a condition that had to be met before an agreement was reached. Howard submits that condition was not satisfied.

Importantly, though, a “condition to agree” differs from a conditional agreement. In the former, a condition must be met before a party will entertain reaching an agreement. If the condition is not satisfied, there is no agreement to sustain a conspiracy conviction. In the latter, a conditional agreement, an arrangement is made to commit a criminal act with a condition on its performance. If the condition goes unmet, the act will not be committed, but there would still be an agreement to sustain the conspiracy conviction. See United States v. Podolsky, 798 F.2d 177, 178 (7th Cir. 1986); United States v. Barta, 776 F.3d 931, 940 (7th Cir. 2015).

Podolsky illustrates a conditional agreement. There, a defendant agreed to burn down a building, but only on the condition that it was vacant. Podolsky, 798 F.2d at 177–78. When the parties to the conspiracy appeared outside of the building with all the tools needed to burn it down, the defendant noticed a light on inside the building. Id. at 178. Worried there were occupants inside, he refused to proceed. Id. The parties then went to burn another building and were arrested on the spot. Id. Because the condition merely limited the defendant's performance of the agreement to burn the first building, not his willingness to reach an agreement in the first place, the court sustained his conspiracy conviction. Id. A conditional agreement was enough, even if the arson was never carried out. Id. at 178–79.

This case is like Podolsky. Howard's insistence on seeing the drugs before handing over money limited his willingness to follow through with the drug purchase to which he had already agreed. The condition did not invite pre-agreement negotiations. Had Howard said, “Show me the drugs; then we can talk price and quantity to see about reaching a deal,” that would be a condition to agree that went unmet. But as the district court found, even if the drug sale was not completed, the evidence of a conditional agreement here is sufficient to sustain Howard's drug conspiracy conviction.

Alternatively, Howard posits that any agreement he reached is inherent and necessary to every buyer-seller transaction, which alone cannot sustain a drug conspiracy conviction.

In denying Howard's motion for a judgment of acquittal or new trial, the district court rejected Howard's buyer-seller defense. Initially, the court found this defense new and untimely and therefore waived. The court also rejected the defense on the merits for two reasons.³ First, the court concluded that the defense did not fit this case, as Howard and George played the roles of buyer and broker, not buyer and seller. Second, the district court faulted Howard for citing United States v. Colon, 549 F.3d 565 (7th Cir. 2008), a case recently overruled by United States v. Page, 123 F.4th 851, 861–62 (7th Cir. 2024) (en banc).

Howard's principal appellate brief does not contest the district court's reasoning. He essentially repeats the same arguments the district court already rejected and cites the same authority the district court noted had been overruled. This raises the question of waiver.

Waiver is evaluated on each case's specific facts, and waiver principles are construed liberally in favor of the defendant in a criminal case. United States v. McKay, 176 F.4th 537, 540 (7th Cir. 2026). Unlike forfeiture, which impacts the standard of review on appeal, waiver precludes appellate review. Flores, 929 F.3d at 447.

In criminal cases, waiver often arises when a defendant relinquishes a trial-related right, or when a defendant fails to object. Waiver can also apply to arguments. See McKay, 176 F.4th at 541–43. Flores sets out this court's law. There, we observed that a defendant's choice to object to some release conditions, but not to others, is a strategic and intentional omission—indeed, this is the “very ‘[t]ouchstone of waiver.’ ” Flores, 929 F.3d at 448 (citation omitted). The defendant also had notice of the condition challenged on appeal, which afforded her the “benefit of advice of counsel and a full opportunity to raise objections ․” Id. at 449 (citation omitted). During the sentencing hearing, Flores concluded, was the time to object. See id.

Both principles apply here. Howard had notice in the district court's order deciding his post-trial motions as to why the district court rejected his buyer-seller defense. His principal brief on appeal was the place to dispute that court's reasons and authorities, but he did not do so. Given that Howard questioned and countered the district court's reasoning on so many other issues, we conclude this was an informed and intentional decision. Not until Howard's reply brief did he offer the contention he now presses, but that was too late. Any challenge to the district court's reasoning here was therefore waived on appeal. See id. at 450.

For its part, the government did not advocate for waiver in its response brief. It addressed the merits of the arguments, repeating the district court's reasoning and even conceding de novo review of Howard's defense. We are not obligated to enforce the government's waiver, though. Id. “[W]aiver is a threshold, context-specific inquiry.” Id. at 445. Given Howard's decision not to raise this argument until his reply brief, we decline to grant him an advantage.

In sum, the evidence is sufficient to sustain Howard's conviction on Count I (conspiracy to possess with intent to distribute cocaine), including in the absence of a buyer-seller defense waived on appeal.

2. Remaining Counts

Howard's challenges to the sufficiency of the evidence on Counts II and III also fall short.

On Count II, attempting to possess with intent to distribute five kilograms of cocaine, sufficient evidence supports his conviction. In 2018, Howard agreed to buy ten kilograms for $280,000. He showed up to the meeting spot with half the money and sought to buy five kilograms first, expressing his intent to return with the rest of the money to buy the other five kilograms later.

Howard responds by challenging the evidence that he intended to complete the sale: Because he showed up with only $133,000, he argues that he could not have attempted to buy five kilograms, which would have cost $140,000. But a drug buyer can attempt to persuade a seller to reduce the price. Indeed, paying cash rather than relying on credit is a common bargaining chip for drug transactions. It was thus reasonable for the jury to infer that Howard attempted to buy five kilograms of cocaine with $133,000.

As to Count III, sufficient evidence supports Howard's conviction for conspiring to distribute drugs in 2017. The jury heard testimony that Howard sold 2 ounces of cocaine to the confidential informant for $2,400. In video and audio recordings of the meeting, Howard instructed the confidential informant how to cook cocaine and mix it before distribution. Howard discussed discount prices for future sales as well. This evidence supports the reasonable inference that Howard knowingly agreed to participate in a conspiracy to distribute drugs.

To this, Howard responds that the guilty verdict on Count III's conspiracy to distribute cocaine charge is inconsistent with the not guilty verdict on the Count IV cocaine distribution charge. But that does not follow from the trial evidence. Recall that the video did not record a transfer of drugs or money. Nor was it apparent who responded, “Yeah,” to the confidential informant's question, “You got my stuff?” The jury also heard conflicting testimony on these topics. That evidence is enough to raise a reasonable doubt as to Count IV, even if it removed any reasonable doubt as to the conspiracy charge in Count III. At any rate, inconsistent verdicts do not necessarily give rise to a new trial or a judgment of acquittal. See United States v. Powell, 469 U.S. 57, 69 (1984). Juries may return inconsistent verdicts for reasons other than innocence. United States v. Reyes, 270 F.3d 1158, 1168 (7th Cir. 2001).

In sum, the evidence is sufficient to sustain Howard's convictions on Counts I, II, and III.

E. Sentencing

Howard's final contention—that his sentence is unreasonable—is reviewed for abuse of discretion. United States v. Vasquez-Abarca, 946 F.3d 990, 993 (7th Cir. 2020). A sentence within the Guidelines is presumed reasonable and will be upheld if the district court gave adequate reasons for it, consistent with 18 U.S.C. § 3553(a). United States v. Cunningham, 883 F.3d 690, 701–02 (7th Cir. 2018).

Howard concedes that his sentence falls within the Guidelines range. He also admits the district court considered aggravating and mitigating factors consistent with § 3553(a). Even so, Howard points to United States v. Daoud, 980 F.3d 581 (7th Cir. 2020), as a case in which the district court relied on mitigating factors that could not bear the weight the sentencing court gave them and imposed a sentence “well-below-Guidelines.” Id. at 591. There, this court concluded that the district court had “downplayed the extreme seriousness” of the defendant's offense, failed to account for the need to protect the public from the defendant's “high risk of reoffending,” and improperly distinguished the sentences of similar offenders by relying on the defendant's long period of pretrial confinement. Id. To Howard, the opposite occurred here. Though the district court considered aggravating factors, he argues it downplayed or failed to account for mitigating factors, like the facts that no real drugs were involved in the 2018 sale and that Howard is an integral part of his family and community.

Daoud does not help Howard, though. That case involved a sentence “well-below-Guidelines,” id., so there was no presumption of reasonableness, like here. And Daoud involved a more stringent standard of review—the “major departure” from the advisory Guidelines range required a “more significant justification” than normal. Id. (citing Gall v. United States, 552 U.S. 38, 50 (2007)). In our deferential review, the additional considerations Howard claims were minimized do not persuade us that the presumption of reasonableness has been rebutted.

III. Conclusion

The district court did not abuse its discretion by quashing Sabaini's subpoena, nor was the trial here fundamentally unfair, as the jury was permitted to and did consider Howard's public authority defense. The evidence discovered in the search of Howard's home and cell phone was properly admitted under the inevitable discovery doctrine. And the trial evidence was sufficient to sustain Howard's convictions. His many other challenges were either waived or fall short under the applicable standards of review.

Affirmed

FOOTNOTES

1.   By this time, Howard had limited the public authority defense to Count I (conspiracy to possess with intent to distribute cocaine) and Count II (attempted possession with intent to distribute cocaine), arising from his 2018 conduct.

2.   Dkt. 99 at 10, n.2 (citing Riley). Riley discusses this at 573 U.S. at 402–03.

3.   Dkt. 471 at 11–12.

Brennan, Chief Judge.