Nine defendants who were convicted in federal court of drug conspiracy for distributing methamphetamine and marijuana will continue to serve their sentences after the 7th Circuit Court of Appeals affirmed the judgments but issued cautions for federal prosecutors.

In U.S. v. Jwuan L. Moreland, Antrio B. Hammond, Wesley S. Hammond, Susie A. Smith, Herbert D. Phipps, David J. Pitts, Bradley S. Shelton, Michael D. Weir and Timothy Bailey, 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 11-3146, 11-3319, 11-3321, 11-3367, the court affirmed convictions and sentences ranging from 110 months to life in prison. The appeal arose from cases tried by Judge Jane Magnus-Stinson in the District Court for the Southern District of Indiana, Terre Haute Division.

Writing for the panel, Circuit Judge Richard Posner warned that “a prosecutor’s putting all his eggs in the conspiracy basket can be a risky tactic,” particularly when one defendant’s role in the larger drug-dealing operation was questionable.

Herbert Phipps argued that he was merely a buyer of methamphetamine and that his intent to deal was not established. “The government was skating on thin ice by failing to charge him with a substantive drug offense, for which the evidence was much stronger, rather than just with conspiracy,” Posner wrote.

“Nevertheless his conviction must stand. The jury heard evidence that he indeed sold as well as consumed meth that he bought from the drug ring in quantity on credit. … At trial he testified that this was a ruse to obtain a large quantity of meth for his personal use, but the jury didn’t have to believe him,” Posner wrote.

The opinion rejects individually the arguments raised by each defendant in affirming the judgments against them, but Posner also wrote, “The jury instructions were repetitive and confusing, and included an open-ended list of factors from which membership in a conspiracy could be inferred.”

Posner also took issue with the designation of a Drug Enforcement Administration witness’s testimony as both expert and non-expert. “Using terms like ‘lay witness’ and ‘expert witness” and trying to explain to the jury the difference between the two types of witness is inessential and, it seems to us, ill advised,” he wrote.