United States v. Smith, Danny

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 00-4184 & 00-4214

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANNY SMITH and HARRY D. LOWE,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Western Division.

No. 99 CR 50022—Philip G. Reinhard, Judge.

____________

ARGUED OCTOBER 23, 2001—DECIDED OCTOBER 16, 2002

____________

Before HARLINGTON WOOD, JR., CUDAHY, and KANNE,

Circuit Judges.

CUDAHY, Circuit Judge. Harry Lowe and Danny Smith

were convicted by a jury of several counts of conspiracy

and possession of marijuana with intent to distribute, in

violation of 21 U.S.C. §§ 841, 846. During the tax years

in question, Lowe had substantial income, presumably

from drug trafficking, which he failed to report as in-

come, in violation of 36 U.S.C. § 7203. The defendants

appeal on several grounds related to whether they were

given a fair trial and whether the district court erred

in determining their criminal sentences. We affirm.

2 Nos. 00-4184 & 00-4214

I.

This appeal involves two criminal defendants and nu-

merous alleged errors by the district court. Therefore,

we must discuss the facts of the case in some detail.

This narrative follows a simple chronology: the drug trans-

actions leading to Harry Lowe’s arrest, the events leading

authorities to Danny Smith, the seizure of a large amount

of cash from Lowe’s residence (which forms the subject of

his tax crimes) and the subsequent trial and sentencing

proceedings.

A.

The conspiracy charges against defendants Lowe and

Smith arise from several drug transactions that took

place from the early to the late 1990s. They can be sepa-

rated into four episodes: (1) the purchase of marijuana

from Jose Rubalcava; (2) the purchase of marijuana from

Gerardo Rivera via co-conspirator Edwin Rivas; (3) the

purchase of marijuana in a deal Rivas brokered with sup-

pliers in Texas and Mexico and (4) the purchase of mari-

juana from a supplier in Arizona.

1. Marijuana from Rubalcava.

In the early 1990s, a home remodeler named Stuart

Swick, a co-conspirator and eventual prosecution witness,

was working at the home of his friend Harry Lowe, a.k.a.

Wayne Lowe, the owner of a used car lot. Swick and Lowe

discussed one of Swick’s other clients, Jose Rubalcava.

Swick had observed Rubalcava moving garbage bags

from the trunk of his car into his home, and Swick in-

ferred that Rubalcava was trafficking in marijuana. This

piqued Lowe’s interest, and he asked Swick to find out

if Rubalcava would be willing to sell him several pounds

Nos. 00-4184 & 00-4214 3

of marijuana, and if so, at what price. According to testi-

mony at trial, a deal was struck for five pounds of mari-

juana (approximately 2.3 kilograms) for $5,000. Several

weeks later, Lowe gave Swick $10,000 to arrange anoth-

er deal with Rubalcava, this time for ten pounds of mari-

juana (about 4.6 kilograms).

During 1992, Lowe and Swick continued to make pur-

chases from Rubalcava. Swick observed that some of

the cash supplied by Lowe came from a safe buried in

the dirt floor of Lowe’s basement. In the summer of 1992,

Lowe enlisted his cousin, Tom Lones, in a plan to make

a $50,000 “down payment” on 300 pounds (140 kilograms)

of marijuana from Rubalcava, never intending to pay

the balance. The plan failed when Rubalcava delivered

the first 90 pounds but refused to deliver any more until

he was paid. Apparently, the buyers ceased dealing with

Rubalcava from that time forward.

2. Marijuana purchased from Rivera.

Lowe had another opportunity to traffic in large quanti-

ties of marijuana in 1994. According to testimony at trial,

the business manager for Lowe’s car lot, Greg Fitzgerald,

met a customer named Edwin Rivas. Fitzgerald found

out that Rivas had acquaintances in the drug importa-

tion business and set up a meeting between Lowe and

Rivas. At the meeting, Lowe asked Rivas if he knew of

any sources for marijuana or cocaine, and Rivas con-

tacted Gerardo Rivera on Lowe’s behalf. Thereafter,

Rivas acted as a courier for Lowe, exchanging large

amounts of cash for marijuana. The first transaction was

for 50 pounds (or 23 kilograms) at $35,000, and Rivas

was usually given $300 to $400 for his efforts.

4 Nos. 00-4184 & 00-4214

3. Marijuana from Texas and Mexico.

In the summer of 1994, Lowe asked Rivas to go to Lare-

do, Texas, and negotiate a deal with a Spanish-speaking

marijuana source. Rivas agreed. Once in Laredo, Rivas

met with two individuals and negotiated a deal to acquire

50 kilograms of marijuana for $475 per kilogram. Rivas

contacted Lowe, who accepted the deal. Rivas then re-

turned to Rockford, picked up $23,000 from Lowe, and

brought it to Texas. The first shipment of marijuana ar-

rived in Rockford a short time later.

Following this transaction, Rivas traveled to Laredo

again, this time accompanied by Lowe. They were taken

to Mexico and introduced to a person called “Rogilo” with

whom they negotiated new terms. The deal made at

that meeting set up a regular shipment of 300 pounds

(about 140 kilograms) of marijuana to Rockford at $275

per pound ($605 per kilogram, or about $82,000 per ship-

ment). According to testimony at trial, this arrange-

ment resulted in approximately ten 300-pound shipments

of marijuana to Rockford between 1994 and 1996.

The marijuana was transported by sealing it in the gas-

oline tanks of pick-up trucks. The trucks were driven

to Rockford, where the drivers would stay at a local ho-

tel. Lowe would drive the trucks from the hotel to

his dealership or to an auto body shop owned by his

friend (and co-defendant) Danny Smith. They would re-

move the gas tanks and cut them open to access the

marijuana. Containers filled with payments of $100,000 or

more were then welded inside new tanks, which in turn

were installed on the trucks and returned to the drivers.

Danny Smith’s business partner at the body shop, James

Petrow, who subsequently testified at trial, witnessed

this activity several times, and once assisted Smith in

dividing marijuana into smaller units and packaging it

in bags. The bags were kept in a freezer at the rear of

Nos. 00-4184 & 00-4214 5

the body shop, and buyers would periodically stop by to

pick up marijuana and drop off money.

4. Marijuana from Arizona.

In November of 1995, Rivas bought a van from Lowe’s

lot. A few months later, Lowe asked Rivas to drive the

van to Arizona to pick up some marijuana. Rivas again

agreed. He drove the van to a hotel in Tucson, where

Lowe’s contact picked up the van to load it with drugs.

The van was returned the next day and Rivas was

shown how marijuana had been hidden behind the

van’s interior rear panels. On the return trip, the Nebras-

ka State Police stopped Rivas. Rivas consented to a search,

and a trooper found 115 pounds of marijuana (about 50

kilograms). Rivas was then placed under arrest.

Rivas agreed to cooperate with DEA officials. The DEA

sent Rivas on a controlled delivery to Lowe’s car lot,

using recording and surveillance equipment. Rivas pulled

into the garage of Lowe’s facility, showed Lowe how

the marijuana could be accessed, and asked to receive

one pound of marijuana in partial payment of his $5,000

courier fee. Rivas then borrowed a car from Lowe and

drove a short distance, where he turned over the mari-

juana and a recording device to DEA agents. Shortly

thereafter, Lowe left the car lot. However, because he was

driving very fast, DEA agents were unable to follow. Lowe’s

vehicle was subsequently found outside Danny Smith’s

auto body shop, but when Lowe left the lot, he once again

drove too fast for authorities to maintain surveillance.

That evening, Lowe was finally arrested as he left a tav-

ern owned and operated by his father. A search war-

rant was obtained to search Lowe’s car lot facilities. The

search recovered 63 packages suspected of containing

drugs, 52 of which were chemically tested and determined

to contain marijuana weighing 35 kilograms (about 75

6 Nos. 00-4184 & 00-4214

pounds). A loaded shotgun was on the premises and ac-

cessible at the time of the search.

B.

Lowe was released on bond shortly thereafter. Smith

and Lowe still possessed large amounts of marijuana,

which Smith placed in the trunk of a Saab at the body

shop. The auto body shop had purchased the Saab from

Lowe’s car lot. One week after Lowe’s arrest and release,

Lowe asked Swick to do him a favor and to get instruc-

tions from Smith. Smith directed Swick to pick up the

Saab at the auto body shop and to lock it in Swick’s ga-

rage. Eventually, Smith also directed Swick to remove

a marijuana-filled duffle bag from the trunk of the Saab

and to lock it in a freezer that was also located inside

the garage. Periodically over the next year, Lowe would

direct Swick to transport quantities of this marijuana

to Smith’s body shop. On one occasion in March of 1997,

Swick delivered nine pounds to Smith.

In April 1997, the police department of Loves Park,

Illinois, received a tip that Swick was storing a large quan-

tity of marijuana in a freezer at his residence. The police

then visited Swick’s home, and Swick voluntarily agreed to

a search. Both Swick and Tom Lones, who was Lowe’s

cousin and the owner of Swick’s rented home, disclaimed

ownership of the locked freezer in the garage. The authori-

ties impounded the freezer and transported it to State

Police headquarters. It was then opened and found to

contain almost 18 pounds of marijuana. A fingerprint

examiner inspected the packages of marijuana, finding

Lowe’s fingerprints on one and Smith’s on another.

C.

On December 3, 1997, a search warrant was executed

at Lowe’s residence, simultaneously with the execution

Nos. 00-4184 & 00-4214 7

of a seizure warrant based on a civil forfeiture complaint.

Several documents were seized, including some items

that were improperly catalogued.1 In addition to numer-

ous firearms, Police seized a safe buried in the basement

floor, of which Lowe denied knowledge. The safe con-

tained more than $100,000 in cash. Although Lowe had

earned income during 1995 and 1996, he did not file tax

returns for those years until December 12, 1997, shortly

after the search and seizure.

According to testimony at trial, Lowe approached Vin-

cent Lloyd, an accountant, in March of 1998 for his assis-

tance in reviewing and correcting his tax returns as far

back as 1993. The Government asserts that because this

review and correction took place so soon after the search

and seizure, they raise a legitimate suspicion that Lowe

was trying to protect some of his assets from forfeiture.

D.

Smith and Lowe were indicted by a federal grand jury

in June 1999. Count 1 charged both Smith and Lowe

with conspiring to distribute in excess of one hundred kilo-

grams of marijuana, a Schedule I Controlled Substance,

in violation of 21 U.S.C. § 841(a)(1). Counts 2 and 3

charged Lowe with conspiracy to distribute “approximately

fifty-two kilograms” and “approximately 1038 grams” of

marijuana, respectively. Counts 4, 5 and 6 charged Lowe

with making false statements on his tax returns for 1994,

1

The apparent lack of orderly police procedure with respect

to certain documents seized from Lowe’s home forms the basis

for Lowe’s unsuccessful “chain of custody” argument discussed

in Section II.A.3, infra.

8 Nos. 00-4184 & 00-4214

1995 and 1996, in violation of 26 U.S.C. § 7606(1).2 Counts

7 and 8 charged Lowe with willful failure to file timely

tax returns for 1995 and 1996, in violation of 26 U.S.C.

§ 7206(1). A jury trial followed.

Before the government commenced its case, Lowe ob-

jected to joinder of the tax and drug charges. Lowe ar-

gued that these charges were unrelated and should be

severed to avoid unfair prejudice. The district court de-

nied the motion for severance and the trial went for-

ward.3 After the government presented its case-in-chief

against Lowe but before Lowe began his defense case,

the district court informed counsel for Smith that any

cross examination by him of Lowe’s defense witnesses

would be limited to matters that pertained to his client,

Danny Smith. The district court judge said that he

wanted to avoid jury confusion by limiting the possi-

bility that counsel for Smith would attempt to develop

his own case during the cross examination of Lowe’s

defense witnesses. Instead, counsel for Smith was in-

structed that he could explore a broader line of inquiry

if he called these witnesses for direct examination dur-

ing his client’s defense. Counsel for Smith then consented

to this procedure.

Testifying in his own defense, Lowe stated that his trip

to Texas with Rivas was merely to repossess a car he

had sold, and that his sponsorship of Rivas’ trip to Arizona

was merely a gesture intended to benefit Rivas. Upon

Rivas’ return to Rockford, Lowe testified that Rivas left

his van at the car lot for repair. Lowe also denied any

drug trafficking with Swick and claimed that the red

2

On the government’s motion, Count 4 was dismissed prior to

trial, and Counts 5 and 6 were dismissed during trial.

3

As the government points out, Lowe did not renew his objection

at the close of evidence.

Nos. 00-4184 & 00-4214 9

Saab in fact belonged to Danny Smith’s auto body shop

and was used primarily by James Petrow. Lowe also

testified that he failed to file returns for 1995 and 1996

because he had fallen behind in the early 1990s, was afraid

of the consequences and did not know how to correct

the situation. Danny Smith subsequently testified that

James Petrow was his business partner in the auto body

shop business from October 1993 to March 1997. At that

time, Petrow’s irresponsibility with money had caused the

business to struggle. According to Smith, Petrow with-

drew business funds for personal use, thus putting the

shop itself in a precarious financial situation. When the

business partnership ended, Smith changed the locks at

the body shop. Smith also testified that he had never

engaged in drug trafficking, that he had never seen

Edwin Rivas before trial and that he had never seen

pickup trucks with marijuana in the gas tanks at his body

shop. Smith did admit that he, with Lowe and Lones,

once passed around one-pound packages of marijuana at

Swick’s house. Smith also conceded that he had smoked

marijuana with Lowe and Lones, but he denied any in-

volvement with or knowledge of the marijuana found in

Swick’s freezer.

Swick testified as well, and claimed that a written state-

ment made by him and furnished to the authorities was

based entirely on his own recollection and was written in

his own words. Lowe attempted to impeach Swick by

pointing out that the introductory paragraph of Swick’s

statement was substantially similar to a statement writ-

ten by an investigating agent. The trial court refused

to allow that line of questioning on cross, but evidence

that the two statements were similar was introduced,

with the agent admitting that the language was “boiler-

plate.”

At one point during Petrow’s testimony, the government

asked if he remembered Lowe’s arrest, referring to the

10 Nos. 00-4184 & 00-4214

arrest for the charges in the present case. Petrow’s an-

swer referred to an arrest in Kentucky. The district

court immediately ordered that the reference to Kentucky

be stricken from the record, and the trial went on, not-

withstanding a motion by Lowe for a mistrial.

On August 8, 2000, the jury convicted Smith and Lowe

of conspiracy to possess with intent to distribute mari-

juana, in violation of 21 U.S.C. § 846. Lowe was also

convicted of possession with intent to distribute mari-

juana, and distribution of marijuana, in violation of 21

U.S.C. § 841(a), and of willfully failing to file timely tax

returns for 1995 and 1996, in violation of 26 U.S.C.

§ 7206(1). The jury also completed a special verdict form,

which asked them to find the quantity of marijuana

involved by selecting a weight range. The ranges on the

form coincided with the ranges contained in 21 U.S.C.

§ 841(b)(1).4 The jury selected 50 to 100 kilograms of

marijuana for Lowe, and less than 50 for Smith. The

indictment, however, specified marijuana amounts in ex-

cess of 1200 kilograms for Lowe and in excess of 100 kilo-

grams for Smith.

At sentencing, the trial court found that Lowe’s rele-

vant conduct involved 528 kilograms of marijuana, and

Smith’s relevant conduct involved more than 100 kilograms.

The court also made several findings that aggravated

Lowe’s sentence. U.S.S.G. §§ 2D1.1(b)(1) (presence of

firearm), 3B1.1(a) (leadership role), 3C1.1 (obstruction),

4A1.1 (criminal history). Both defendants were sentenced

4

21 U.S.C. § 841(b)(1) varies the sentence for violation of § 841(a)

according to the type and amount of the drugs involved in the

violation. For marijuana, the ranges are: (A) 10 years to life for

over 1000kg; (B) 5 to 40 years for 100 to 1000kg; (C) 20 years

or less for 50 to 100kg and (D) five years or less for less than

50kg.

Nos. 00-4184 & 00-4214 11

at the statutory maximum for the applicable drug range

under § 841(b)(1). Smith was sentenced to 60 months in

prison, which is the statutory maximum for an amount

of marijuana less than 50 kilograms, § 841(b)(1)(D), and

Lowe received 240 months, which is the statutory maxi-

mum for an amount of marijuana between 50 and 100

kilograms, § 841(b)(1)(C). The cases were consolidated in-

to the matter now before the court. This appeal follows.

II.

Lowe and Smith make several claims on appeal with

Lowe presenting eight issues and Smith presenting two.

Since many of these issues are related, we have once

again organized our discussion chronologically. We first

turn to both defendants’ appeals from the district court’s

actions at trial, and then to issues related specifically

to sentencing.

A.

Lowe argues that the district court made the follow-

ing errors at trial. First, he claims that the tax charges

should have been severed from the conspiracy charges

and tried separately. Second, he asserts that he should

have been allowed to cross-examine Stuart Swick by dem-

onstrating the similarity between his statement and

an affidavit of Agent White. Third, he challenges the suf-

ficiency of the chain of custody for documents seized pur-

suant to the search warrant, and questions wheth-

er they can be properly admitted into evidence. Fourth, he

claims that a mistrial was necessary because James

Petrow testified that Lowe was arrested in Kentucky.

Finally, Lowe argues that the jury instructions created

an impermissible risk that the jury’s decision was not

unanimous. Smith’s only issue arising from the trial is

12 Nos. 00-4184 & 00-4214

his claim that the district court improperly hindered his

right to cross-examine Lowe and other witnesses who

were testifying during Lowe’s case-in-chief.

1. Motion to sever.

Lowe claims that the district court erred in denying

his motion to sever the tax counts. We review for abuse

of discretion the district court’s decision to deny a motion

to sever the counts of an indictment. See United States

v. Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000).

Before trial, Lowe moved to sever the tax charges

from the conspiracy charges, claiming that the evidence

used to support the tax counts would unfairly prejudice

the jury with respect to the drug charges. The trial court

denied the motion, and Lowe did not renew his objection

at the close of evidence. Citing case law that addresses

the issue of severing criminal co-defendants, the govern-

ment argues that Lowe waived any right he may have

had to severance by failing to renew his motion to the

district court. See, e.g., United States v. Phillips, 239 F.3d

829, 838 (7th Cir. 2001) (stating that, in the context of

co-defendants, “a motion for severance is typically waived

if it is not renewed at the close of evidence, primarily

because it is then that any prejudice which may have

resulted from the joint trial would be ascertainable”)

(quotations omitted); United States v. Cooper, 942 F.2d

1200, 1205 (7th Cir. 1991) (same); United States v. Caudill,

915 F.2d 294, 298 (7th Cir. 1990) (same). Lowe maintains,

however, that unlike a motion for severance of defen-

dants, where the actual content and effect of testimony

is largely unknown until it is presented, the documen-

tary evidence that formed the basis for the tax counts

could be fully assessed prior to trial. Therefore, a renewal

of his original objection was unnecessary. Although Lowe

Nos. 00-4184 & 00-4214 13

fails to cite any authority to support his position, his

reasoning is at least plausible.

Nevertheless, we need not squarely address this issue

because Lowe’s substantive argument on severance

clearly fails on the merits. Under Rule 14 of the Federal

Rules of Criminal Procedure, a district court has discre-

tion to order separate trials if it appears that a defendant

will be prejudiced by trying the offenses together. Sev-

eral factors reduce or eliminate the prejudicial effect

of evidence, including the mutual admissibility and weight

of the evidence at issue. See, e.g., United States v. Traeger,

289 F.3d 461, 473 (7th Cir. 2002) (ruling that “mutually

admissible” evidence—i.e., evidence that is admissible

for either charge—is not prejudicial) (citing United States

v. Dijan, 37 F.3d 398, 402 (8th Cir. 1994)); United States

v. Freeland, 141 F.3d 1223, 1227 (7th Cir. 2000) (ruling

that potential inference of criminal personality is not un-

fairly prejudicial when there is sufficient evidence

to support all counts and the jury is instructed to con-

sider the counts separately). In the interest of preserving

judicial resources, a motion to sever should be granted

only when there is a serious risk of unfair prejudice that

deprives the defendant of a fair trial. Stokes, 211 F.3d

at 1042; United States v. Archer, 843 F.2d 1019, 1021

(7th Cir. 1988); Fed. R. Crim. P. 14 (giving district court

discretion to sever in order to avoid unfair prejudice to

the defendant). We give “great deference” to the district

court’s decision as to the hazards of a joint trial. Phillips,

239 F.3d at 838; see also United States v. Moore, 115 F.3d

1348, 1361-62 (7th Cir. 1997) (stating that defendant

bears “an extremely difficult burden” in showing that

a district court abused its discretion when denying a Rule

14 motion to sever) (quoting United States v. Moya-Gomez,

860 F.2d 706, 754 (7th Cir. 1988)).

The evidence presented in Lowe’s case is not prejudi-

cial because it was “mutually admissible” for either the

14 Nos. 00-4184 & 00-4214

tax or drug charges. See United States v. Quilling, 261

F.3d 707, 715 (7th Cir. 2001) (holding that “ ‘prejudice re-

quiring severance is not shown if evidence on the sev-

ered counts would be admissible in the trial of the re-

maining counts’ ”) (quoting United States v. Rogers, 475

F.2d 821, 828 (7th Cir. 1973)); accord United States v.

Windom, 19 F.3d 1190, 1198 (7th Cir. 1994). Here, in an

effort to prove that Lowe had unreported income, the

government offered evidence of Lowe’s assets amounting to

an estimated $2.6 million, including cars, boats, real

estate, recreational vehicles, home improvements and

cash. The value of his assets and his lifestyle exceeded what

might be achievable from Lowe’s legitimate income from

the used car lot. Lowe claims that the evidence of his

wealth, presented to support the tax charges, would lead

the jury to impermissibly consider it as evidence of a

propensity for trafficking in drugs.

But it is well settled in this circuit that evidence of

an unexplained, lavish lifestyle is probative of the exis-

tence of income derived from a drug conspiracy. See United

States v. Penny, 60 F.3d 1257, 1263 (7th Cir. 1995) (ruling

that “evidence of unexplained wealth is probative and

therefore admissible if it creates a reasonable inference of

the defendant’s involvement in the drug conspiracy or

trafficking”) (internal quotations omitted); Hogan, 886 F.2d

at 1507 (ruling that jury decides whether a defendant’s

wealth came from a legitimate income or criminal activ-

ity and that tax count can be joined with the criminal

conduct count involving the source of the wealth). Even if

the evidence might also suggest to a jury something ad-

verse about Lowe’s character, this evidence is admissi-

ble; it is circumstantially admissible to support an infer-

ence that Lowe had income from drug trafficking. The

disputed tax evidence here was “mutually admissible,” or

overlapping, in that the government could have pre-

sented evidence of Lowe’s extravagant lifestyle to sup-

Nos. 00-4184 & 00-4214 15

port the drug conspiracy charges. Therefore, the denial of

severance was not unfairly prejudicial nor an abuse of

discretion.

Finally, the government voluntarily dismissed several of

the tax-related counts after providing the evidence to

support them. Lowe argues that this maneuver by the

government gives weight to the thesis that the prosecu-

tion of the tax counts was a mere pretense or ruse to

get Lowe’s assets before the jury. But the government

had a legitimate reason for dismissing some of the tax

charges: it would have been difficult to pursue them be-

cause Lowe failed to produce essential documents in a

timely fashion. Lowe cannot claim that the tax charges

were a sham when he made a contribution to the need

to dismiss them. The district court did not abuse its dis-

cretion in denying the motion for severance.

2. Cross examination of Swick.

Lowe argues that the district court abused its discre-

tion when it refused to let Lowe’s counsel use an officer’s

affidavit to impeach Stuart Swick during cross examina-

tion. In this case, an affidavit by law enforcement agent

John White had a first paragraph that was virtually

identical to an affidavit made by Swick, purportedly

from memory. At trial, Swick testified that he created

his statement entirely from his own recollection, and in his

own words, and that he did not use any notes or other

materials to compose his statement. Lowe’s counsel

wanted to impeach Swick with the White affidavit to

demonstrate that Swick was being untruthful about

the originality of his statement. The larger point he

was attempting to make was that Swick, a member of

the drug conspiracy, was motivated to lie about the con-

duct of other defendants in order to obtain a more favor-

able plea bargain.

16 Nos. 00-4184 & 00-4214

Ordinarily, a district court’s evidentiary rulings are

reviewed for abuse of discretion. United States v. Aldaco,

201 F.3d 979, 985 (7th Cir. 2000). However, when the

restriction implicates the criminal defendant’s Sixth

Amendment right to confront witnesses against him,

which Lowe alleges here, the standard of review becomes

de novo. United States v. Cavender, 228 F.3d 792, 798 (7th

Cir. 2000); United States v. Sasson, 62 F.3d 874, 882 (7th

Cir. 1995).

In general, the district court has wide latitude to im-

pose limitations on cross examination. Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); Sasson, 62 F.3d at

882. Limitations on cross examination rise to the level of

a Sixth Amendment violation when they prevent the

exposure of a witness’s bias and motivation to lie. Van

Arsdall, 475 U.S. at 678-79. So long as the accused is

given the opportunity to expose bias, further cross exam-

ination is at the discretion of the district court. Sasson, 62

F.3d at 882 (stating that a core goal of cross examina-

tion is to expose bias); United States v. Nelson, 39 F.3d

705, 708 (7th Cir. 1994) (stating that if the defendant

is given the opportunity during cross examination “to

expose a motive to lie, it is of peripheral concern to the

Sixth Amendment how much opportunity defense coun-

sel gets to hammer that point home to the jury”); United

States v. Robinson, 832 F.2d 366, 373 (7th Cir. 1987) (rul-

ing that district court may preclude “cumulative and

confusing cross examination into areas already suffi-

ciently explored to permit the defense to argue personal

bias and testimonial unreliability”); see also Cavender,

228 F.3d at 798 (ruling that the district court can limit

cross examination to prevent, among other things, repeti-

tive or marginally relevant interrogation).

Here, Lowe was given ample opportunity to expose bias.

Swick repeatedly testified that his written statement

Nos. 00-4184 & 00-4214 17

was entirely his own. During Lowe’s defense case, Lowe

was able to call Agent White to the stand and elicit

from him that, except for names, the same “boilerplate”

language that Swick claimed as his own was included

in Rivas’ May 18, 1999, statement, Petrow’s grand jury

statement and Agent White’s December 1997 affidavit. The

court also permitted Lowe to argue to the jury that

Swick lied about the preparation of the statement. Be-

cause Lowe was given ample opportunity to present

issues of credibility and potential bias to the jury, fur-

ther cross examination of Swick on the content of Agent

White’s affidavit was unnecessary. Further, the point

of similarity applied only to the introductory paragraph

of the two statements, not to its remaining substance.

Hence, it was of only marginal significance. The district

court’s ruling is sustainable on either a de novo or an

abuse of discretion standard.

3. Chain of custody.

Lowe next asserts that the chain of custody for docu-

ments seized at his residence during the execution of the

search warrant was so imperfect as to require denial of

their admission into evidence. The thrust of Lowe’s ar-

gument here is that these documents, which include self-

authenticating receipts and communications, were not

properly catalogued and could not be identified by the

agents who conducted the search. Therefore, he believes

that he is entitled to a new trial. We note at the outset

that a district court’s evidentiary rulings, including mat-

ters pertaining to the chain of custody, are reviewed

for abuse of discretion. United States v. Scott, 19 F.3d

1238, 1244 (7th Cir. 1994).

Despite Lowe’s protestations to the contrary, we be-

lieve that the defects pointed to by Lowe are relatively

minor and do not raise serious issues of reliability. The

18 Nos. 00-4184 & 00-4214

general standard for admissibility of evidence is that it

be “in substantially the same condition as when the

crime was committed.” United States v. Aviles, 623 F.2d

1192, 1197 (7th Cir. 1980). A perfect chain of custody is

not a prerequisite to admission. See United States v.

Brown, 136 F.3d 1176, 1181 (7th Cir. 1998) (ruling that

“lack of proof regarding a chain of custody does not ren-

der [audio]tapes inadmissible”); United States v. Lott, 854

F.2d 244, 250 (7th Cir. 1988) (ruling that “the govern-

ment need not prove a perfect chain of custody for evi-

dence to be admitted at trial”). Unless the defendant

can point to evidence that specifically raises the issue

of tampering, a presumption of regularity attaches to

evidence that has at all times been kept in official

custody, and any gaps in the chain of custody go to the

weight of the evidence, not to its admissibility. See United

States v. Rivera, 153 F.3d 809, 812 (7th Cir. 1998); Brown,

136 F.3d at 1181 (“[M]erely raising the possibility (how-

ever hypothetical) of tampering is not sufficient to ren-

der evidence inadmissible.”). The documents in question

here were in official custody at all times, and Lowe does

not argue that they were no longer in their original con-

dition, nor that they had been tampered with or were

otherwise tainted. Therefore, the presumption of regu-

larity attaches. The district court’s chain of custody rul-

ing is affirmed.

4. Motion for a Mistrial.

Lowe argues that the district court erred when it re-

fused to grant him a new trial after Petrow made a refer-

ence to Lowe’s arrest in an unrelated matter. During

the trial, the government asked Petrow if he remem-

bered Lowe’s arrest in February of 1996, referring to the

arrest in Rockford. Petrow responded that Lowe “was

arrested in Kentucky a while back.” Although the district

Nos. 00-4184 & 00-4214 19

court immediately ordered that this statement be strick-

en from the record, Lowe moved for a mistrial. The dis-

trict court denied the motion, but admonished the jury

to disregard the testimony and to refrain from specula-

tion on its meaning since it had no relevance to the cur-

rent charges. We review the denial of a motion for mistrial

for abuse of discretion. See United States v. Wilson, 237

F.3d 827, 836 (7th Cir. 2001).

At the outset, we note that jurors are presumed to fol-

low limiting and curative instructions unless the matter

improperly before them is so powerfully incriminating

that they cannot reasonably be expected to put it out of

their minds. See Richardson v. Marsh, 481 U.S. 200, 207-08

(1987). In Richardson, the Court focused on the extent

to which the improper testimony criminally implicated

the defendant and the likelihood that the jury would dis-

regard the curative instruction. Id. Here, it is reasonable to

believe that the jury could place the Kentucky arrest out of

their minds, especially since it was unrelated to any of the

other testimony at trial and was unadorned with additional

details. This is not the type of striking testimony that

would be engraved in the mind of the jury. The testimony

is also insufficient to overcome the presumption that the

jurors obeyed their curative instructions. The district court

did not err in denying the motion for a mistrial.

5. The special verdict for quantity of marijuana.

Lowe claims the district court abused its discretion

when it asked the jury to determine the amount of mari-

juana by range rather than specifying an exact amount.

Decisions by the district court regarding jury instruc-

tions are reviewed for an abuse of discretion. United

States v. Reed, 227 F.3d 763, 770-71 (7th Cir. 2000). How-

ever, when the instructions are based on an error of law, we

review de novo. Savino v. C.P. Hall Co., 199 F.3d 925, 934

20 Nos. 00-4184 & 00-4214

(7th Cir. 1999) (stating that jury instructions are reviewed

de novo “to determine whether they provide fair and accu-

rate summaries of the law”).

Here, the district court, at the request of the govern-

ment, provided jury instructions and verdict forms that

required the jury to make special findings regarding the

quantity of marijuana involved in the conspiracy count.

This procedure is a byproduct of United States v. Apprendi,

530 U.S. 466 (2000), which held that “any fact (other

than prior conviction) that increases the maximum pen-

alty for a crime must be proven beyond a reasonable

doubt.” Id. at 476. Because § 841(b) specifies four ranges

of drug amounts that carry four different statutory maxi-

mum sentences, see note 4, supra, this court has man-

dated that “the trier of fact must be instructed to find,

both the elements of the offense, as listed in § 841(a), and

the drug amounts listed in § 841(b) that the prosecutor

relies on to establish the maximum [statutory] penalty.”

United States v. Trennell, 290 F.3d 881, 887 (7th Cir. 2002);

see also United States v. Rodgers, 245 F.3d 961, 965 (7th

Cir. 2001) (“In the wake of Apprendi, it is clear that any

finding as to a drug quantity that has the effect of in-

creasing the statutory maximum prison term must be

charged and submitted to the jury.”).

While we believe that the district court’s jury instruc-

tions complied with the requirements of Apprendi, the

critique presented here is slightly different. Lowe claims

that the quantity of drugs involved, under § 841(b)(1), is

an element of the offense, and as such, the jury must

unanimously agree on the precise amount of the drugs

at issue. Lowe claims that the district court impermis-

sibly provided in its instructions four ranges of drug

amounts, which correspond to the four subsections of

§ 841(b)(1). Lowe argues that the district court erred

when it rejected his special verdict form requiring the jury

Nos. 00-4184 & 00-4214 21

to agree on the specific amount of marijuana Lowe con-

spired to possess. According to Lowe, the jury could

have been divided over the occurrence of particular trans-

actions involving different quantities of drugs. The jury

instructions regarding range rather than specific drug

amounts could have therefore resulted in a compromise

verdict, with the jury divided over which transactions

formed the basis of the conviction.

Although Lowe does not frame his argument in this

way, he is essentially trying to advance two related, but

ultimately discrete, legal theses: (1) that drug quantity

is an element of a § 841 offense, and (2) that the jury

must unanimously agree on the precise amount of drugs,

rather than a range.

In this circuit, the answer to the first question is clear.

Drug quantity is not an element of a § 841 drug offense.

See, e.g., United States v. Trennell, 290 F.3d 881, 887 (7th

Cir. 2002) (stating that “drug quantity is not an element

of the offense under § 841”); United States v. Bjorkman,

270 F.3d 482, 490-91 (7th Cir. 2001) (same); United States

v. Brough, 243 F.3d 1078, 1080 (7th Cir. 2001) (same). An

“element” of a criminal offense is ultimately a fact that

must be charged in an indictment and proven beyond

a reasonable doubt to support a conviction. See Bjorkman,

270 F.3d at 492; see also Richardson v. United States,

526 U.S. 813, 817 (1999) (“Calling a particular kind of fact

an ‘element’ carries certain legal consequences. . . . [A] jury

in a federal criminal case cannot convict unless it unani-

mously finds that the Government has proved each ele-

ment.”) (citation omitted). However, in the instance of

§ 841, if the jury instructions do not adequately address the

amount of drugs the defendant conspired to possess with

the intent to distribute, Apprendi limits the sentencing

court to a period of incarceration at or below the default

statutory maximum. See United States v. Mietus, 237 F.3d

22 Nos. 00-4184 & 00-4214

866, 874 (7th Cir. 2001) (holding that Apprendi limited

sentencing court to the default statutory maximum of

five years, 21 U.S.C. § 841(b)(1)(D), when jury was in-

structed only to find whether the defendant possessed

and conspired to possess a “measurable amount” of mari-

juana); United States v. Westmoreland, 240 F.3d 618, 632

(7th Cir. 2001) (same). If drug amount were a true ele-

ment of § 841, then a failure by the jury to agree on the

drug amount would mean that “there is no offense at all.”

Bjorkman, 270 F.3d at 492 (emphasis in original).

Lowe’s second argument regarding range is integrally

tied in with the requirements of Apprendi. In the present

case, the indictment specified an amount of marijuana

in the vicinity of 1200 kilograms. In addition, the special

verdict revealed that the jury unanimously agreed that

Lowe “conspired to possess with the intent to distribute

more than 50 kilograms of marijuana, but less than 100

kilograms of marijuana.” The statutory maximum sen-

tence for this quantity of drugs is 20 years. See 18 U.S.C.

§ 841(b)(1)(C). We do not believe that, under Apprendi, the

district court was required to take the additional step of

asking the jury to return a specific finding of drug amount,

which would ostensibly reflect the jury’s agreement on

the occurrence of specific drug transactions.

In this context, we believe that a precise drug amount

in relation to a statutory range is analogous to the cir-

cumstance in which the jury unanimously agrees on the

presence of a particular element but disagrees as to the

method or means by which it arose. For example, in

Richardson, the Court observed that “a federal jury need

not always decide unanimously which of several possible

sets of underlying brute facts make up a particular ele-

ment.” 526 U.S. at 817. The Court then provided the

following lucid example:

Where, for example, an element of robbery is force or

the threat of force, some jurors might conclude that

Nos. 00-4184 & 00-4214 23

the defendant used a knife to create the threat of

force; others might conclude that he used a gun. But

that disagreement—a disagreement about means—

would not matter as long as all 12 jurors unanimously

concluded that the Government had proved the nec-

essary related element, namely, that the defendant

had threatened force.

Id.

If a simple robbery conviction can brook a modicum of

disagreement as to means or method by which force

was applied or threatened, so too can a conviction on a

federal drug conspiracy that involved two defendants

and numerous alleged transactions over a period of

four years allow for some disagreement over the par-

ticular transactions that the conspiracy encompassed.

Further, a ruling to the contrary would inevitably ham-

string the government in its ability to effectively pros-

ecute more complex drug conspiracies in which the al-

leged wrongdoings span decades and include thousands

of discrete drug transactions. See, e.g., United States

v. Patterson, 215 F.3d 776, 778 (7th Cir. 2000) (fifteen

defendants in a decade-long conspiracy that grossed

$40,000 a day), vacated in part, 531 U.S. 1033 (2000);

United States v. Boyd, 208 F.3d 638, 640-41 (7th Cir. 2000)

(five defendants in a “continuing and wide-ranging [nar-

cotics] conspiracy reaching back to the mid-1960s”),

vacated, 531 U.S. 1135 (2001).

In any event, Lowe’s logic is fundamentally flawed

in advancing the proposition that jury agreement on a

specific amount of drugs would necessarily guarantee

jury agreement about the particular transactions encom-

passed by the conspiracy. Juror A might be convinced of

the occurrence of Transaction M, involving 2 kilos, Trans-

action N, involving 3 kilos and Transaction O, involving

4 kilos, for a total of 9 kilos. Juror B, on the other hand,

24 Nos. 00-4184 & 00-4214

might have in mind Transaction P, involving 5 kilos

and Transaction O, involving 4 kilos, again for a total of

9 kilos. That in each case the specific amount of drugs

totaled 9 kilos would not assure jury unanimity on the

specific transactions supporting the conviction. For all the

reasons stated above, we hold that the district court’s

special verdict form, reflecting ranges of drug amounts

under § 841(b)(1), was in accordance with law and not

an abuse of discretion.

6. Limits on Smith’s cross examination of Lowe’s defense

witnesses.

Smith alleges that the district court improperly pre-

cluded him from cross-examining any of Lowe’s wit-

nesses, including Lowe, who presented testimony poten-

tially adverse to Smith. As we noted earlier in connec-

tion with the limitations of Lowe’s cross examination of

Swick, a district court’s evidentiary rulings are reviewed

for abuse of discretion, Aldaco, 201 F.3d at 985, but

the standard of review becomes de novo when an ad-

verse evidentiary ruling implicates the defendant’s Sixth

Amendment right to confront witnesses, Cavender, 228

F.3d at 798.

Although resolution of this issue is quite straightfor-

ward, the following context is necessary to an understand-

ing of Smith’s meritless claim. Because this case in-

volved a joint trial of Lowe and Smith, Lowe presented

his defense before Smith. Before Lowe began his defense,

the government inquired about the order of cross exam-

ination as between itself and Smith. The district court

stated, “Well, [counsel for Smith] may cross as to any-

thing related to his client, but otherwise he really is

going to have to call him. . . . I think it’s better to do it

that way. Then the jurors will have it straight who is

Nos. 00-4184 & 00-4214 25

being called by whom.” During this exchange, Smith’s law-

yer commented, “I understand, Judge. That’s fine.”

The next day, counsel for Lowe presented impeach-

ment evidence that suggested Swick might have ob-

served large quantities of marijuana at Smith’s body

shop. Counsel for Smith requested a limiting instruc-

tion because the impeachment evidence should not be

admitted against Smith on the conspiracy charges. The

district court replied, “I understand that. The reason I

limited you before is because I think you wanted to get

out evidence that you thought might be helpful to your

client, and I thought it was better to separate it from

the other defendants. But if there’s something that comes

out that you think is adverse, I’ll let you cross-examine.”

During the same exchange, Smith’s counsel acknowl-

edged that the inconsistency of statements made by

Lowe’s first two witnesses had been of minor importance

and could be effectively addressed during his own direct

examination. Smith’s counsel then expressed concern

about Lowe’s subsequent witnesses, including Lowe him-

self. Yet, Smith’s counsel did not request an opportunity

to cross-examine either Lowe or his two remaining charac-

ter witnesses.

Thus, as is apparent from the record, the major prob-

lem with Smith’s argument is that counsel for Smith

explicitly agreed to the court’s handling of some of the

witnesses and failed to assert his right to cross-examine

others, despite the court’s ruling that he “[might] cross

as to anything related to his client.” Cast in the light

most favorable to Smith, any claim that the prescribed

cross examination procedure infringed upon Smith’s

Sixth Amendment rights has either been waived or for-

feited or some combination of the two. See Penny, 60 F.3d

at 1261 (stating that constitutional prohibition against

double jeopardy is waived “when there is the ‘intentional

relinquishment or abandonment of a known right’ ” and

26 Nos. 00-4184 & 00-4214

that “the simple failure to assert a right–forfeiture–

is distinct from an intentional act–waiver”) (quoting

United States v. Olano, 507 U.S. 725, 733 (1993)).

Waiver of a personally-held constitutional right “is not

reviewable,” whereas forfeiture of that same right may

be reviewed for plain error. Penny, 60 F.3d at 1261. In

that respect, “[o]nly those errors that affect substantial

rights and ‘seriously affect the fairness, integrity, or pub-

lic reputation of judicial proceedings’ . . . amount to plain

error warranting reversal.” United States v. Haywood, 70

F.3d 507, 511 (7th Cir. 1995) (quoting Olano, 507 U.S. at

732). Smith fails to point to a single example of how his

substantial rights were harmed by the cross examination

procedure prescribed by the court. Based on our review of

the record, the district court’s handling of witnesses ap-

pears to have been quite sensitive to Smith’s procedural and

substantive rights. The district court did not err in this

issue.

B.

Lowe raises three issues on appeal as to sentencing, and

Smith raises one. Both defendants challenge the method

of the district court’s fact-finding at sentencing. Lowe fur-

ther alleges that the district court erred in finding

the presence of a firearm, which raised his offense level. Fi-

nally, Lowe argues that the district court erred in deter-

mining his criminal history.

1. Preponderance of the evidence standard at sentencing.

Lowe alleges that the trial court improperly applied

the preponderance of evidence standard when determin-

ing the applicable amount of drugs under the Sentenc-

ing Guidelines. Lowe argues that a more demanding evi-

dentiary standard was warranted because the district

Nos. 00-4184 & 00-4214 27

court’s relevant conduct determination drastically in-

creased his sentence beyond what he would have re-

ceived if his sentence had been calculated using the

smaller quantity of drugs found by the jury. Further,

Lowe claims that Apprendi limits the trial court to find-

ing the amount of drugs specified by the jury in the

special verdict. When reviewing sentencing determina-

tions under the Guidelines, we review the district court’s

legal conclusions de novo and its findings of fact for

clear error. United States v. Parolin, 239 F.3d 922, 927-28

(7th Cir. 2000).

At the outset, we note that Lowe conflates the jury’s

factfinding role during trial with the district court’s

factfinding role during sentencing. To put it simply, the

two fact finders make separate findings of fact for two

distinct purposes. The adjudication of guilt is concluded

once the jury finds the defendant guilty beyond a rea-

sonable doubt. Then, during the sentencing phase, the

judge assesses the facts under the relevant provisions of

the Sentencing Guidelines and employs a preponderance

of the evidence standard. United States v. Zehm, 217 F.3d

506, 511 (7th Cir. 2000); Talbott v. Indiana, 226 F.3d

866, 869 (7th Cir. 2000); U.S.S.G. § 6A1.3, cmt. (discuss-

ing preponderance of the evidence as the recommended

standard). Here, Lowe claims that there were special

circumstances that required the district court to depart

from this usual framework. First, Lowe argues that a

more exacting standard than preponderance must be ap-

plied when the court’s factual findings as to drug

amount markedly exceed the findings of the jury, thereby

producing a much more severe sentence under the Sen-

tencing Guidelines. Second, Lowe contends that Apprendi

effectively caps the district court’s findings as to the

drug amount at the level determined by the jury.

Here, the jury found, by special verdict, that Lowe

conspired to possess and distribute 50 to 100 kilograms

28 Nos. 00-4184 & 00-4214

of marijuana. Under U.S.S.G. § 2D1.1, this amount

would produce a base offense level of 24.5 Under a pre-

ponderance of the evidence standard, the district court

found that Lowe conspired to possess and distribute

528 kilograms of marijuana, setting the base offense level

at 28. U.S.S.G. § 2D1.1(6). Both of these base offense

levels would then be increased by adding 8 points relat-

ing to several adjustments, including presence of a fire-

arm, obstruction of justice and Lowe’s leadership role.6

The smaller quantity of drugs (the jury determination)

therefore results in a 32 offense level, which in turn pro-

duces a sentencing range of 151 to 188 months, given

Lowe’s Category III criminal history.7 However, the dis-

trict court relied on the larger drug amount to reach a

36 offense level, which produced a sentence of 240 months.

Lowe claims that the district court must apply a clear

and convincing standard of proof when its findings of

fact lead to a disproportionately large increase in a de-

fendant’s sentence (in this case, 52 months). To support

his argument, Lowe directs our attention to United States

v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995), where we

stated in dicta that a case might require a higher stan-

dard of proof when the finding at sentencing becomes

5

The categories under 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1

do not directly coincide. A finding of 50-100 kg. of marijuana fits

§ 841(b)(1)(C) precisely, but spans three separate U.S.S.G. ranges:

§ 2D1.1(1) (40-60 kilograms); § 2D1.1(9) (60-80 kilograms) and

§ 2D1.1(8) (80-100 kilograms), resulting in a base offense level

of 24. The district court acknowledged it would use the 80-100

kilogram category if it were to adopt the jury’s finding.

6

The preponderance of the evidence standard is not an issue

for these offense level adjustments. Lowe does challenge the fire-

arm finding on different grounds. This issue is addressed below.

7

Lowe challenges his criminal history, which is also addressed

as a separate issue below.

Nos. 00-4184 & 00-4214 29

“ ‘the tail that wags the dog of the substantive offense.’ ” Id.

at 1322 (quoting McMillan v. Pennsylvania, 477 U.S. 79,

84 (1986); see also United States v. Hardin, 209 F.3d 652,

654 (7th Cir. 2000) (stating in dicta that “perhaps in

extreme circumstances . . . clear and convincing evidence

would be the standard of proof for sentencing factors”),

vacated, Sallis v. United States, 531 U.S. 1135 (2001).

However, in the seven years since we decided Rodriguez,

we have yet to find a sentencing disparity that warrants

this heightened evidentiary standard. And certainly,

there is nothing about Lowe’s sentence that would cause

us to break new ground today. See, e.g., Rodriguez, 67

F.3d at 1322-23 (finding preponderance of evidence ap-

propriate for relevant conduct determination that ex-

tends sentence from 51-63 months to life in prison);

United States v. Masters, 978 F.2d 281, 283-85 (same for

sentence increase from 33-41 months to 40 years). Thus,

although the principle of Rodriguez remains viable, it has

no application to the case before us.

Lowe’s Apprendi argument is also meritless. Under

Apprendi, when a sentence was increased above the

statutory maximum, the facts underlying it had to be sub-

mitted to the jury and proven beyond a reasonable doubt.

530 U.S. at 490; United States v. Wallace, 276 F.3d 360,

369 (7th Cir. 2002) (“[T]o the extent that a drug quantity

affects a defendant’s statutory maximum sentence, it is an

aspect of the crime that . . . must be proven beyond a

reasonable doubt”) (emphasis added); Brough, 243 F.3d

at 1079-80 (same); United States v. Nance, 236 F.3d 820,

825 (7th Cir. 2000) (same). Here, through the use of the

special verdict form, the jury unanimously determined that

Lowe conspired to distribute 50-100 kilograms of mari-

juana. Under § 841(b)(1)(C), the statutory maximum for

that quantity of drugs is 20 years, which is the precise

sentence (240 months) imposed here by the district court.

Therefore, since the drug amount as determined by the

30 Nos. 00-4184 & 00-4214

district court did not push the sentence beyond the statu-

tory maximum, the district court correctly relied upon

a preponderance of the evidence standard when making

its sentencing determinations.

2. Quantity of drugs attributed to Smith.

Smith claims the district court’s drug quantity finding

at sentencing was clearly erroneous. A district court’s

finding as to drug quantity for sentencing purposes

is reviewed for clear error. See Westmoreland, 240 F.3d

at 629-30; United States v. Bacallo, 149 F.3d 717, 719 (7th

Cir. 1998).

The thrust of Smith’s argument is both simple and

without merit. Smith asserts that the government put

on evidence suggesting that he conspired to distribute

several hundred kilograms of marijuana, yet the jury

convicted him of an amount less than 50 kilograms. Smith

maintains that this disparity between the amount al-

leged by the government and the amount found by the

jury was inescapably a product of the jury having sig-

nificantly discounting the credibility of Rivas, Petrow

and Swick, who testified against Smith at trial. Since

the district court’s finding of 100 kilograms of mari-

juana rejected the collective wisdom of the jury and its

implied credibility findings, Smith concludes that the dis-

trict court committed clear error.8

8

As in the case of Lowe, the district court’s factual findings as

to drug amount resulted in a sentence that was at the statutory

maximum for a violation of 21 U.S.C. § 841(b)(1)(D) (specifying

a maximum sentence of five years for engaging in a conspiracy

to distribute 50 kilograms or less of marijuana). This provision

corresponds, in terms of drug quantity, to the jury’s findings on

(continued...)

Nos. 00-4184 & 00-4214 31

However, as noted earlier, the district court’s rele-

vant conduct findings for sentencing purposes, includ-

ing drug quantities, are governed by a less demanding

evidentiary standard than are determinations by the jury.

This is a fact of federal criminal procedure that Smith

(unlike Lowe) does not contest. Nonetheless, he con-

tends that even under this more lenient standard, the

testimony of the government’s three witnesses simply

cannot support a drug quantity finding larger than 50

kilograms because this is what the jury found. But cred-

ibility determinations by the district court using the

preponderance standard cannot be challenged on ap-

peal unless the court credited testimony that was essen-

tially unbelievable as a matter of law. See United States

v. Ray, 238 F.3d 828, 834 (7th Cir. 2001). We give excep-

tional deference to district courts on issues of credibility

in sentencing. See Amadeo v. Zant, 486 U.S. 214, 227

(1988); accord United States v. Johnson, 227 F.3d 807, 813

(7th Cir. 2000).

Smith fails to identify any factor in the record that

would render the testimony of the government witnesses

essentially unbelievable. While he does point out that

some of this testimony was internally conflicting, the

mere presence of such conflicts does not in itself amount

to essential unbelievability nor support a finding of clear

error. Deference to the finder of fact, with the opportu-

nity to observe the witnesses, supports credibility find-

ings even in the face of some internal conflicts. Thus, ap-

plying the preponderance standard, the findings of the

district court, on which the sentence is based, are not

clearly erroneous.

8

(...continued)

the special verdict form.

32 Nos. 00-4184 & 00-4214

3. Presence of a firearm in connection with the offense.

Lowe argues that the district court erred when it im-

posed a 2-level enhancement for possession of a firearm

in connection with the crime of conviction. See U.S.S.G.

§ 2D.1(b)(1). The possession of a firearm for sentencing

purposes is a question of fact reviewed for clear error.

See Nance, 236 F.3d at 826; United States v. Berthimaume,

233 F.3d 1000, 1002 (7th Cir. 2000). Further, one of the

application notes to § 2D1.1 states that an enhancement

for a firearm “should be applied if the weapon was present,

unless it is clearly improbable that the weapon was con-

nected with the offense.” § 2D1.1, cmt. n.3 (emphasis added)

(giving example of a hunting rifle as an unrelated firearm).

Once the government proves that a gun was present

in the commission of an offense, the burden shifts to the

defendant to show that it was clearly improbable that the

gun was connected with the offense. See Berthimaume, 233

F.3d at 1004.

Here, a judge could reasonably conclude that several

of the firearms confiscated by police were connected with

the drug conspiracy. Police found several firearms at

Lowe’s residence, where he kept more than $100,000,

which was likely the product of the illegal drug trade.

When police executed the search warrant for Lowe’s used

car lot, which was used as the drop-off location for a van

filled with approximately 115 pounds of marijuana, they

found a loaded shotgun in the bathroom of the garage.

Lowe testified at trial that the shotgun belonged to his

mechanic and that he was unaware it was on the premises.

However, this assertion does not demonstrate a sufficient

improbability that the gun was connected to drug traf-

ficking. In any event, Lowe’s testimony does not establish

an innocent explanation for the presence of the guns

found at his residence, where he kept more than $100,000

in cash, presumably derived, at least in part, from drug

Nos. 00-4184 & 00-4214 33

trafficking. The district court’s ruling on the § 2D1.1(b)(1)

enhancement was not clearly erroneous.

4. Lowe’s criminal history points.

The final issue in this appeal is whether the district

court correctly calculated Lowe’s criminal history points.

Lowe insists that, under the Sentencing Guidelines, the

district court erroneously included two sentences of court

supervision, one following a guilty plea and the other

following a stipulation of facts. In the sentencing context,

we review the district court’s legal conclusions de novo

and its findings of fact for clear error. See Parolin, 239

F.3d at 927-28.

Lowe had two prior Illinois offenses that resulted in

sentences of supervision for one year or more. One of

the sentences, eighteen months of supervision for unlawful

use of a firearm and possession of cannabis, was the

product of a guilty plea. The other sentence was one

year for disorderly conduct, to which Lowe had made a

stipulation of fact. Both orders of supervision provided

that upon successful completion of supervision without

further offense, the charges would be dismissed. When cal-

culating criminal history points under the Guide-

lines, the district court must consider prior offenses that

have led to a sentence of one year or more upon adjudica-

tion of guilt. U.S.S.G. § 4A1.2(a). The district court as-

signed four points for the firearm/cannabis sentence and

one point for the disorderly conduct sentence, placing

Lowe in a Category III criminal history. Lowe contends

that because he pleaded guilty or stipulated to the facts,

and because the sentences were for “supervision,” they

did not result from an adjudication of guilt, nor should

they qualify as “prior history.”

34 Nos. 00-4184 & 00-4214

Under the Sentencing Guidelines, a “prior sentence” is

included in a criminal history only if it was “imposed upon

adjudication of guilt.” U.S.S.G. § 4A1.2(a). The definition

of a “prior sentence” includes sentences of probation and

sentences that were totally suspended or stayed, all of

which must be counted as part of a defendant’s prior

criminal history. U.S.S.G. § 4A1.2(a)(3); see also United

States v. Burke, 148 F.3d 832, 839 (7th Cir. 1998) (treat-

ing supervision under Illinois law as the equivalent of

probation and counting one year of supervision as part of

criminal history even though the charges were eventual-

ly dismissed); United States v. Binford, 108 F.3d 723, 727

(7th Cir. 1997) (ruling that Illinois sentence of one-year

court supervision is properly a prior sentence for Guide-

line purposes). It is immaterial that the sentence re-

sults from a guilty plea or from a stipulation of facts

because both count for criminal history purposes. See

United States v. Smith, 223 F.3d 554, 578-79 (7th Cir.

2000) (holding that the practical effects of stipulation are

similar enough to those resulting from a plea of nolo

contendere to qualify as prior history for sentencing pur-

poses).

Here, there was no error. The points assigned to the

firearm/cannabis sentence were appropriate because a

guilty plea is an adjudication of guilt under Illinois law.

Moreover, the supervisory sentence was equivalent to

more than one year of probation, and the eventual dismiss-

al of the charge is immaterial for sentencing purposes.

The four points attributable to the firearm/cannabis sen-

tence are sufficient to place Lowe in Category III;

hence, any error in attributing one pont to the disorderly

conduct sentence is harmless. Even so, the disorderly

conduct offense also appears to satisfy the requirements

of § 4A1.2(a). It was therefore appropriate to include

both sentences as part of the criminal history calculation.

Nos. 00-4184 & 00-4214 35

III.

In summary, all the issues pertaining to the trial of

Danny Smith and Harry Lowe are unavailing. The dis-

trict court did not abuse its discretion when it (1) denied

Lowe’s Rule 14 motion to sever, (2) denied his motion for

a new trial based on alleged defects in the chain of evi-

dence and (3) denied his motion for a new trial based on

Petrow’s mention of a prior arrest in Kentucky. Under a

more stringent de novo standard of review, the district

court also did not err when it (4) prohibited Lowe’s attor-

ney from cross-examining Swick with agent White’s af-

fidavit, (5) narrowed the scope of Smith’s cross exam-

ination of Lowe’s defense witnesses and (6) gave jury

instructions that permitted jurors to agree on a range of

drug amounts that corresponded to the various drug

amount ranges in § 841(b)(1) rather than a precise drug

amount.

All the sentencing issues raised by the defendants al-

so fail. The district court did not commit clear error when it

(1) found that Smith conspired to distribute 100 kilograms

of marijuana and (2) imposed a 2-level enhancement to

Lowe’s base offense level for possession of a firearm related

to the charge of conviction. The district court also did not

err when it (3) applied the preponderance of evidence

standard to determine the amount of marijuana Lowe

conspired to distribute and (4) calculated Lowe’s criminal

history points.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

36 Nos. 00-4184 & 00-4214

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-16-02