United States of America v. Tekoa Q. Tinch

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 28, 2023*
Decided December 5, 2023
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1794
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TEKOA Q. TINCH,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 18-cr-00336-1
Andrea R. Wood,
Judge.
O R D E R
Tekoa Tinch was convicted by a jury of attempting to possess and distribute 500
grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was
sentenced to 192 months’ imprisonment. He now challenges his conviction, raising
numerous trial and post-trial errors. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1794 Page 2
Background
Tinch was approached in 2018 by a friend, Ivan Walton, about a plan to kidnap a
Chicago-based drug dealer who had failed to pay a Mexican cartel. The cartel induced
Walton and Tinch to undertake the kidnapping with an offer of money and drugs.
Walton was arrested soon after speaking with Tinch, and he began cooperating with
law enforcement.
Tinch sought proof of the cartel’s legitimacy before he would agree to the
scheme. Communicating through Walton, Tinch asked the cartel to put up earnest
money or sell him narcotics in advance. Thereafter, Walton introduced Tinch to
undercover law enforcement officers posing as members of the cartel. In coded
language, they discussed with Tinch his desire to purchase narcotics before carrying out
the kidnapping. One undercover officer directed Tinch to bring $2,000 to their next
meeting to buy a kilogram of cocaine; Tinch complied. Upon retrieving the drugs
(which were sham narcotics) from the undercover officer’s car, Tinch was arrested. In
Tinch’s vehicle, officers found two firearms and $3,000 in cash. He was charged with
attempted possession with intent to distribute, possession of a firearm as a felon, and
possession of a firearm in furtherance of a drug offense. See 21 U.S.C. §§ 841(a)(1), 846;
18 U.S.C. §§ 922(g), 924(c)(1)(A).
The jury found Tinch guilty of attempted possession with intent to distribute
cocaine. (He was acquitted of charges of possessing a firearm as a felon or in
furtherance of a drug-trafficking crime.) The district court designated Tinch a career
offender based on two prior convictions for a controlled substance offense. See U.S.S.G.
§ 4B1.1(b)(2). That status raised his final offense level to 34, which, coupled with a
criminal history category of VI, yielded a sentencing range of 262 to 327 months’
imprisonment. The court sentenced him to 192 months.
Analysis
Tinch argues that the district court made trial and post-trial errors. We address
each argument in turn.
I. Jury Instruction
Tinch asks this court to reverse his conviction because the jury instruction
insufficiently stated the element of intent to possess cocaine. The instruction Tinch
challenges stated that he was charged with “attempting to possess with intent to
distribute a controlled substance, namely, 500 grams or more of … cocaine.” Tinch
maintains that the instruction omitted the element of specific intent to possess cocaine.
And even if the instruction was proper, he adds, no evidence supports the charge that
he knowingly attempted to possess a controlled substance—because, technically, the

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No. 22-1794 Page 3
narcotics he received were sham. Because Tinch did not object at trial, we review the
instruction for plain error. See United States v. Maez, 960 F.3d 949, 956 (7th Cir. 2020).
There was no plain error. The possession element of this crime requires proof
beyond a reasonable doubt that the defendant knew the substance was controlled,
intended to possess it, and took a substantial step toward possessing it. See McFadden v.
United States, 576 U.S. 186, 191–94 (2015); United States v. Haddad, 976 F.2d 1088, 1094
(7th Cir. 1992). Tinch takes issue with the instruction laying out the charges against him,
but the instruction on the elements of his attempted possession charge included the
intent element that Tinch claims is missing. The instruction properly stated, “the
government must prove … the defendant intended to possess a controlled substance …
believed that the substance was some kind of controlled substance; and [t]he defendant
knowingly took a substantial step toward possessing [the] substance …[.]” (emphasis
added). And nevertheless, the jury heard undisputed evidence supporting an inference
that Tinch—who used cash-in-hand to pay for a substance he believed to be cocaine—
intended to possess cocaine and took a substantial step toward possessing it. His coded
language in conversation with the undercover officers suggests he knew the cocaine to
be an illegal substance. Although Tinch denies that he could have had such knowledge
(because the substance contained sham ingredients), factual impossibility is not a
defense to an attempt charge. See United States v. Cote, 504 F.3d 682, 687 (7th Cir. 2007).
Indeed, our circuit’s pattern jury instructions reflect this. See Seventh Circuit Pattern
Criminal Jury Instructions, at 1024 (2020) (“The sale of a non-controlled substance that
the defendant subjectively believes to be a controlled substance can constitute an
attempt …[.]”).
Tinch raises additional objections to the jury instructions (e.g., seeking to contest
the indictment, the investigative technique instruction, the instruction on drug type and
quantity, or the omission of a limiting instruction for “other acts” evidence). But he
waived these objections by failing to meaningfully develop them. See F ED. R. A PP . P.
28(a)(8)(A); see also Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
II. Evidence
As to the evidence at trial, Tinch argues that the district court erred in admitting
evidence of the kidnapping conspiracy, co-conspirator hearsay, and “other acts” under
Federal Rule of Evidence 404(b)(2) (allowing introduction of otherwise inadmissible
character evidence if independently relevant to prove motive, intent, mistake,
knowledge, identity, or common plan). The court had provisionally allowed the
government to introduce evidence of (1) the kidnapping plan and negotiations to
purchase cocaine—for the non-propensity purpose of showing knowledge, motive, and
intent, (2) a conversation between Tinch and Walton made in furtherance of the

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No. 22-1794 Page 4
kidnapping job and drug-trafficking endeavor—as non-hearsay effect on the listener,
and (3) conversations between Tinch and an undercover officer made in furtherance of
the kidnapping job and drug-trafficking endeavor—as non-hearsay effect on the
listener. But the court—citing concerns of unfair prejudice under Federal Rule of
Evidence 403—barred the prosecution from referring directly to the kidnapping plan.
(The court allowed the prosecution at trial to refer to the kidnapping plan only as the
“Mexican cartel job.”)
Tinch challenges the government’s proffers. We review the district court’s
evidentiary ruling for an abuse of discretion. See United States v. Washington, 962 F.3d
901, 905 (7th Cir. 2020). With regard to the first proffer, he contends that evidence of the
kidnapping plot, even in its sanitized form, was overly prejudicial. But the district
court, in adhering to Rule 403, is afforded “great deference” in determining how best to
censor references to the kidnapping. See United States v. Inglese, 282 F.3d 528, 538 (7th
Cir. 2002). And Tinch has not explained how he was prejudiced by the court’s rulings to
limit direct references to the kidnapping plan.
As to the second and third proffers (which we have grouped here because both
were offered for their effect on Tinch as the listener), Tinch argues that his
conversations with Walton and the undercover officer were inadmissible hearsay
because the statements were offered for their truth. Further, he asserts that Walton and
the undercover officer did not fall under the co-conspirator hearsay exception because
they were not co-conspirators when the statements were made. See F ED. R. EVID.
801(d)(2)(E).
But the statements in these conversations were not hearsay because they were
offered to show an effect on Tinch, the listener. See United States v. Graham, 47 F.4th 561,
567 (7th Cir. 2022). The trial transcript reflects that the conversations were used to show
not the truthfulness of the statements made by Walton and the undercover officer, but
rather their effect on Tinch, through his response and reactions.1 See id.; see also
United States v. Gaytan, 649 F.3d 573, 579–80 (7th Cir. 2011) (explaining that introducing
1 Even if these statements were offered for their truth, Walton’s statement
satisfied the hearsay party-opponent exception because the government adequately
proved that a conspiracy existed between Tinch and Walton before Walton’s arrest.
See F ED. R. EVID. 801(d)(2)(E); see also United States v. Cruz-Rea, 626 F.3d 929, 937 (7th Cir.
2010). As the district court acknowledged, any statements made by Walton after his
arrest and cooperation could not have been admitted under the party-opponent
exception, nor could the undercover officer’s statements. See United States v. Mahkimetas,
991 F.2d 379, 382–83 (7th Cir. 1993).

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No. 22-1794 Page 5
an out-of-court conversation to render the defendant’s words or acts intelligible is a
permissible, non-hearsay use of the out-of-court conversation).
Next, Tinch asserts that the court improperly admitted testimony of prior bad
acts. A prior bad act by the defendant is inadmissible to show a defendant’s propensity
for criminal behavior unless the defendant first introduces—or “opens the door” to—
evidence of the act. See F ED. R. EVID. 404(a)(2); see also United States v. Jett, 908 F.3d 252,
271 (7th Cir. 2018). Here, a special agent testified on redirect examination that, based on
his interpretation of Tinch’s text messages with another narcotics associate, Tinch used
the same coded language to discuss cocaine with undercover officers. But there was no
error because defense counsel opened the door to this testimony by first cross-
examining the agent about the text messages.
III. Sentencing
Tinch also appeals his sentence. First, he argues that the district court erred at
sentencing by not verifying that he had discussed the presentence report with counsel.
See F ED. R. C RIM . P. 32(i)(1)(A). But the district court complied with this procedure,
confirming that Tinch had ample time with his attorney over email to discuss the
report.
Second, Tinch asserts that the district court overstated his criminality when it
designated him a career offender. See U.S.S.G. § 4B1.1(b)(2). (The Guidelines define
“career offender” as a defendant over eighteen, whose instant offense is a felony that is
a crime of violence or a controlled substance offense, and who has at least two prior
felony convictions for crimes of violence or controlled substance offenses.) Tinch points
out that two prior drug-trafficking offenses did not involve violence. But the Guidelines
tally convictions for either a crime of violence or a controlled substance offense. See id.
§ 4B1.2(c). And a sentence is presumed reasonable if the sentencing judge, as here,
properly applies guideline recommendations. See Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Boroczk, 705 F.3d 616, 624 (7th Cir. 2013).
Third, Tinch challenges the court’s denial of a two-level adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1 based on his decision to contest the
constitutionality of the statute under which he was convicted (that is, being convicted
for attempted possession of cocaine that turned out to be sham narcotics). A
constitutional challenge to the statute of conviction, on its own, does not preclude a
reduction for acceptance of responsibility. See United States v. Purchess, 107 F.3d 1261,
1266 (7th Cir. 1997); see also U.S.S.G. § 3E1.1 cmt. 2 (defendant may still be eligible for
acceptance of responsibility reduction even though the defendant makes a
constitutional challenge to a statute or a challenge to the applicability of a statute to his

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conduct). But a reduction for acceptance of responsibility is not meant for defendants
who contest their guilt. See United States v. Cunningham, 103 F.3d 596, 598 (7th Cir. 1996);
United States v. McIntosh, 198 F.3d 995, 1001–02 (7th Cir. 2000). And Tinch did not
directly acknowledge his participation in illegal conduct, as required by § 3E1.1(a).
Further, the court noted that Tinch “consistently tried to find technicalities and
loopholes to avoid the consequences of the jury verdict.” See U.S.S.G. § 3E1.1 cmt. 1(A)
(frivolously contesting relevant conduct suggests defendant does not accept
responsibility); see also United States v. Munoz, 610 F.3d 989, 993 (7th Cir. 2010)
(upholding denial of reduction where defendant untruthfully minimized his
participation in conspiracy and falsely denied knowing that his conduct was a crime).
Fourth, Tinch contends that the district court should not have applied a two-level
special-offense-characteristic enhancement to his offense level for possessing a firearm,
since he was acquitted of the firearm possession charge. See U.S.S.G. § 2D1.1(b)(1). But
United States v. Watts, 519 U.S. 148 (1997), forecloses this argument. Watts held that a
jury’s decision to acquit a defendant of charges does not prevent the court from
considering the conduct underlying the acquitted charge at sentencing, if the
preponderance of the evidence shows that the acquitted conduct is connected to the
offense of conviction. Id. at 156. Relevant connections to the offense include other acts
that are part of the same course of conduct, scheme, or plan as the offense.
See United States v. Mumford, 25 F.3d 461, 468 (7th Cir. 1994) (weapon possessed during
offense and related relevant conduct led to sentence enhancement). Given that the
firearms were in Tinch’s car when he drove to the drug deal, the court appropriately
applied the enhancement.
We have considered Tinch’s remaining arguments, but none merits discussion.
Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.

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