United States v. Rashid Bounds

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13-3863 & 13-3910

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER SAUNDERS and RASHID BOUNDS,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 1:12-cr-00589-2, 1:12-cr-00589-3 — Rubén Castillo, Chief Judge.

____________________

ARGUED JANUARY 22, 2015 — DECIDED JUNE 10, 2016

____________________

Before EASTERBROOK, MANION, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge. Christopher Saunders and Rashid

Bounds sold heroin on the west side of Chicago. They were

indicted, and went to trial. A number of their co-conspirators

testified against them, and they were convicted of conspiring

to distribute at least 100 grams but less than one kilogram of

heroin. At sentencing, the district court held them responsible

2 Nos. 13-3863, 13-3910

for between three and ten kilograms of heroin and sentenced

each of them to 216 months’ imprisonment. On appeal, the

defendants contend that the court erroneously denied their

motion to exclude the government expert’s fingerprint testi-

mony because the government’s pretrial disclosures did not

sufficiently disclose the basis of the expert’s opinion. While

we agree that the government’s disclosure failed to meet the

requirements of Federal Rule of Criminal Procedure 16, we

find the error to be harmless because there was overwhelming

evidence of the defendants’ guilt. Saunders and Bounds also

contend that the court erroneously admitted a stipulation re-

garding a traffic stop of two alleged co-conspirators who

drove away from the police while tossing packets that resem-

bled heroin from their car. But we find that the stipulation was

relevant to the government’s drug conspiracy case and its

prejudicial effect did not outweigh its probative value. Finally,

the defendants appeal their sentences, arguing that the jury

specifically found that less than one kilogram of heroin was

involved and the district court erred by reexamining that find-

ing. However, we find that the special verdict form, properly

interpreted, does not contain such a finding from the jury. So

the district court did not err in finding that more than one kil-

ogram was involved. In addition, defendants contend that the

district court erred in failing to articulate a methodology for

arriving at its drug quantity finding. We do not agree. The

district court properly identified and articulated a reliable ba-

sis for its calculation of the drug quantity. Therefore, we af-

firm the defendants’ convictions and sentences.

I. BACKGROUND

In July 2012, defendants Christopher Saunders and Rashid

Bounds, along with Joenathan Penson and Terrence Penson,

Nos. 13-3863, 13-3910 3

were charged with conspiring to possess with intent to dis-

tribute and to distributing heroin in violation of 21 U.S.C.

§§ 841 and 846. The indictment alleged that they conspired

with David Price and others to sell heroin in Chicago. Saun-

ders and Bounds were tried jointly before a jury, and were

found guilty of conspiring to possess and distribute at least

100 grams, but less than one kilogram, of heroin.

At trial the government called as witnesses Mokece Lee,

Joenathan Penson, and James Brown, who each pled guilty.

They testified that the defendants were their co-conspirators

in the heroin trade. That conspiracy began no later than No-

vember 2007 and lasted until at least March 2008, and Price,

another co-conspirator, supplied heroin for distribution to the

defendants and others on the west side of Chicago. The de-

fendants managed and supervised specific blocks where the

heroin was sold to lower-level workers. The resulting profits

were split with Price and sometimes other co-conspirators.

Throughout the conspiracy, the base of operations was an

apartment under Price’s control known as “Up Top.” While

no one lived at Up Top, the defendants had keys to the apart-

ment. Access to Up Top was, with a few exceptions, limited to

those involved in the conspiracy. The defendants and their co-

conspirators mixed Price’s raw heroin with Dormin, a sleep-

ing pill, to create larger quantities of product. They packaged

the heroin mixtures, took turns making deliveries, and col-

lected money from the purchasers.

As part of a task force investigation by the Chicago Police

Department, surveillance photographs and videos were taken

at Up Top. The surveillance revealed that the defendants and

other co-conspirators were coming and going to Up Top dur-

ing the conspiracy period. The investigation also produced

4 Nos. 13-3863, 13-3910

evidence from six weekly trash pulls from outside Up Top.

Evidence of heroin mixing and packaging was found, includ-

ing Dormin bottles, cardboard Dormin containers, red plastic

capsules, aluminum foil pieces, plastic baggies and their

empty cardboard containers, and spools of tape. From this ev-

idence, a forensic chemist also found trace amounts of heroin

and diphenhydramine, the active ingredient in Dormin, and

a fingerprint specialist, Joseph Ambrozich, found latent prints

that matched the defendants’ fingerprints.

A. The Rule 16 Disclosure

Because Ambrozich was to testify for the government as

an expert witness, the government filed a Rule 16 disclosure.

See Fed. R. Crim. P. 16(a). The disclosure explained the Anal-

ysis, Comparison, Evaluation and Verification (ACE-V)

method of fingerprint examination, the method Ambrozich

used to find a match. The Rule 16 disclosure explained the

four steps of the ACE-V method, noting that in the second

step, the fingerprint expert compares how many matching

points of verification are found in the prints. These points of

verification, sometimes called Galton points, are what justify

a conclusion of a positive fingerprint identification. But the

government did not disclose how many matching Galton

points Ambrozich found during the examination or what the

points were.

Because the number of Galton points was missing from the

Rule 16 disclosure, the defendants moved to strike the expert

opinion. That motion was denied, and the district court al-

lowed the expert testimony, without requiring pre-trial dis-

closure of the number of points or offering any other remedy

to the defendants. During trial, the government questioned

Ambrozich about the number of Galton points he used to

Nos. 13-3863, 13-3910 5

match the fingerprints, and he responded that there is no set

number of points required to make a positive identification in

the United States. Instead, he testified as to his personal pref-

erence of finding at least ten or twelve points of identification,

which he said made him a conservative fingerprint examiner

as compared to other examiners. He stated that in this case he

found between twelve and twenty shared points of identifica-

tion between the latent prints from the trash pulls and the de-

fendants’ fingerprints. During cross-examination, Ambrozich

acknowledged that because there is no set standard in the

United States, experts might differ not only in the number of

points required, but in what qualifies as a point of identifica-

tion as well.

The jury found the defendants guilty, and they moved for

a new trial, partly on the basis of the government’s failure to

provide an adequate Rule 16 disclosure for the fingerprint ex-

pert. The district court denied the motion, concluding that the

defendants had received a fair trial and had not been unfairly

prejudiced by the government’s incomplete disclosure.

B. Traffic Stop Stipulation

At trial, the district court also admitted a stipulation re-

garding a November 16, 2007 traffic stop involving Price and

a man named Keith Carr. The defendants stipulated to the

content of the police officers’ statements regarding the traffic

stop, but objected to the stipulation’s relevance. The stipula-

tion stated that on November 16, Chicago police officers saw

two men enter a black Ford SUV after leaving Up Top. They

followed the car and attempted to pull it over. As the officers

left their car, the SUV sped off and during the pursuit, small

objects, later identified as tinfoil packets of heroin, were

thrown out of the windows. Eventually, the police pulled over

6 Nos. 13-3863, 13-3910

the car and identified Carr and Price. During the incident, the

police obtained permission to search Price’s phone and found

a contact named “Bleek,” which is what Bounds was known

as among his co-conspirators. Although the defendants

agreed to the contents of the stipulated testimony, they ob-

jected to its relevance. The judge overruled the objection, find-

ing the evidence relevant to the government’s overall theory

of the case that Saunders and Bounds were involved in a drug

conspiracy.

C. Jury Verdict and Sentencing

At the conclusion of the evidence, the jury received a spe-

cial verdict form which stated that if the jury found the de-

fendants guilty of involvement in a heroin conspiracy, it was

to determine the type and amount of controlled substances

involved in each offense. The options on the verdict form

were: (1) a detectible amount but less than 100 grams of mix-

tures containing heroin; (2) at least 100 grams of mixtures con-

taining heroin but less than 1,000 grams; or (3) 1,000 grams or

more of mixtures containing heroin. The jury selected option

2, indicating that the defendants’ offense involved at least 100

but less than 1,000 grams of mixtures containing heroin.

At sentencing, the government argued for a higher drug

quantity than the jury found. In its view, the jury was asked

to find a drug quantity solely to determine the applicable

mandatory minimum and maximum sentences. It contended

that the drug quantity issue should be revisited, and pro-

posed that more than 10 kilograms of heroin were involved in

the conspiracy. The government based its proposed calcula-

tion on the number of Dormin bottles retrieved from the trash

pulls, along with testimony of co-conspirators regarding the

heroin to Dormin ratio in the mixtures created at Up Top. The

Nos. 13-3863, 13-3910 7

government argued that although it did not present evidence

of ten kilograms of heroin mixtures, it presented 143 empty

Dormin bottles from the six weekly trash pulls, which would

produce 3.69 kilograms of heroin mixtures. It further con-

tended that those 143 bottles were collected over a time period

of only six weeks of a four-month conspiracy, and so for the

entire four months, the drug quantity would be 14.4 kilo-

grams.

The defense argued that the jury’s drug quantity selection

indicated that it did not find the cooperating witnesses’ testi-

mony, including the quantity of drugs involved in the con-

spiracy, to be credible. Ultimately, the district court denied the

government’s request to hear new evidence regarding the

quantity involved in the defendants’ charged offense, stating

that because it had doubts about the precision of the mixtures

created at Up Top, it refused to sentence the defendants based

on guesswork. However, the court found that it could safely

determine by a preponderance of the evidence standard that

3 to 10 kilograms of heroin were involved in the charged

crime. The court based its calculations on the ratio of heroin

to Dormin (5 grams to 13 grams), and the fact that 143 Dormin

bottles were recovered, to make a finding of 3.69 kilograms.

The calculation provided room for error because the 143 Dor-

min bottles were collected in only six weeks of the four-month

conspiracy.

The district court’s drug quantity finding put the defend-

ants at an adjusted Guidelines level of 37, with a sentencing

range of 262–327 months. If the court concluded that less than

one kilogram of heroin was involved, the defendants’ maxi-

mum Guidelines level would have been 33, with a sentencing

range of 168–210 months. Ultimately, the defendants were

8 Nos. 13-3863, 13-3910

sentenced below the Guidelines range determined by the dis-

trict court to 216 months in prison. Saunders and Bounds ap-

peal their convictions and sentences.

II. ANALYSIS

The defendants raise four arguments on appeal. Two are

evidentiary and two are related to their sentencing. We will

discuss each in turn.

A. Evidentiary Issues

On appeal, the defendants challenge two evidentiary de-

cisions. First, they argue that the district court abused its dis-

cretion in admitting the government’s fingerprint expert tes-

timony without requiring the government to disclose the ba-

ses and reasons for the expert’s opinions. Second, they claim

that the district court erroneously admitted the stipulation re-

garding the traffic stop of Carr and Price.

1. Expert Disclosure Insufficient, But Harmless

Error

Specifically, the defendants contend that the district court

erred in admitting testimony of the government’s fingerprint

expert, Ambrozich, without requiring the government to dis-

close before trial the number of Galton points Ambrozich

used to make a positive fingerprint identification. We review

the district court’s denial of the defendants’ motion to exclude

for abuse of discretion. United States v. Stevens, 380 F.3d 1021,

1025 (7th Cir. 2004). If the district court abused its discretion

in erroneously admitting evidence, we would reverse and re-

mand for a new trial only if the error was not harmless. United

States v. Thornton, 642 F.3d 599, 604 (7th Cir. 2011); United

States v. McGee, 408 F.3d 966, 981 (7th Cir. 2005); Fed. R. Crim.

P. 52(a).

Nos. 13-3863, 13-3910 9

The first step in our harmless error analysis is to determine

whether there was actual error, which in this case would be a

Rule 16 violation. Federal Rule of Evidence 702 requires ex-

pert testimony to be based on sufficient facts or data, and to

be the product of reliable scientific or other expert methods

that have also been reliably applied. And for expert testimony

to be admissible, the proponent of the evidence must establish

that the expert’s testimony is reliable (and relevant) by a pre-

ponderance of the evidence. Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 589, 592–93 (1993). In criminal cases when

the government seeks to call an expert witness, the govern-

ment must at the defendant’s request provide a summary of

any expert testimony the government intends to use, includ-

ing “the witness’s opinions, the bases and reasons for those

opinions, and the witness’s qualifications.” Fed. R. Crim. P.

16(a)(1)(G) (emphasis added). We agree with the defendants

that the government’s Rule 16 disclosure was insufficient be-

cause it failed to provide the number of points of identifica-

tion that were the basis for Ambrozich’s opinion that the fin-

gerprints were a match. See United States v. Robinson, 44 F.

Supp. 2d 1345, 1347–48 (N.D. Ga. 1997) (excluding fingerprint

testimony for failure to comply with defendant’s request for

disclosure of documentation of the points of comparison re-

lied on by expert to make identifications).

The government makes much of the fact that its disclosure

discussed the ACE-V method, which the expert used to con-

clude that the defendants’ fingerprints matched the trash pull

evidence. The ACE-V method is “the standard method for de-

termining whether two fingerprints are from the same per-

son.” United States v. Herrera, 704 F.3d 480, 484 (7th Cir. 2013).

But the ACE-V method is a process. It is not the basis or rea-

son for an expert’s conclusion any more than the scientific

10 Nos. 13-3863, 13-3910

method is the basis or reason for other scientific conclusions.

We have found the ACE-V method to be sufficiently reliable

under Daubert. Id. at 484–87. But this case is about disclosure

of the basis and reasons for the expert opinion, not the relia-

bility requirement of Daubert for admission of expert testi-

mony.

The ACE-V method begins with a three-level analysis of

whether the latent print is of value. The examiner starts with

level 1 characteristics, which are the familiar pattern of loops,

arches, and whorls that are generally visible to the naked eye.

United States v. Mitchell, 365 F.3d 215, 221 (3d Cir. 2004). At

level 2, the examiner analyzes the more detailed characteris-

tics of the fingerprint, including “ridge characteristics” which

are the patterns of islands, dots, and forks formed by the

ridges. Id. The points where those ridges terminate or bifur-

cate are often referred to as Galton points. Id. “The typical hu-

man fingerprint has somewhere between 75 and 175 such

ridge characteristics.” Id. Finally, at level 3, the examiner looks

at the microscopic variations in the ridges, which are the most

vulnerable to distortion. Id.

After the analysis of the fingerprint, the examiner pro-

ceeds to the comparison step, comparing what he found on

the latent fingerprint to what is found on a known fingerprint.

Id. at 222. An evaluation is made as to whether there is suffi-

cient similarity to declare a match. Id. The last step of the pro-

cess involves a verification where another examiner repeats

the observations to see if he comes to the same conclusion. Id.;

Herrera, 704 F.3d at 484. So the ACE-V method boils down to

recognizing and categorizing distinctive features in prints

and “it is the distinctiveness of these features, rather than the

ACE-V method itself, that enables fingerprint examiners to

Nos. 13-3863, 13-3910 11

match fingerprints.” Id. at 485 (emphasis added). The distinc-

tiveness of these features—whether referred to as Galton

points, points of comparison, points of verification, or ridge

characteristics—are what Ambrozich used to determine that

the fingerprints in this case were a match.

The government contends that “the absence in the expert’s

report of a set number of Galton points on which he relied for

his conclusions … did not mean that his opinion had no ba-

sis.” But in this very statement the government concedes that

the number of Galton points is the basis of the expert’s opinion

because it is what the expert “relied” on for his conclusion.

The absence of the number of points in the report does not

mean that his opinion has no basis, but it does mean that he

has failed to disclose his basis.

The government argues that because there is no governing

standard for how many Galton points are required to justify

a fingerprint match, its Rule 16 disclosure was adequate. But

the lack of a nationally accepted number of Galton points to

make a fingerprint match does not undermine the importance

of the number of Galton points here. For some fingerprint ex-

perts, and seemingly, for Ambrozich, the number of points is

the basis for the determination that there is a match. See Mitch-

ell, 365 F.3d at 222 (“An n-point match refers to a match be-

tween an unknown latent print and a known full print in

which the examiner has identified n corresponding Galton

points in the correct geometry relative to one another. A num-

ber of jurisdictions both outside the United States and within

seem to rely on a system where a minimum number of corre-

sponding points must be found before a match may be de-

clared, irrespective of Level 3 detail.”). Some experts use an

alternative approach that combines quantity and quality

12 Nos. 13-3863, 13-3910

whereby “[i]f ridge characteristics are abundant, then the

quality of Level 3 detail is unimportant; but a paucity of Gal-

ton points can be compensated for by high-quality Level 3 de-

tail.” Id. We make no statement today about the preferred

method of fingerprint identification or what methods are suf-

ficient under Daubert. Instead, we apply the plain language of

Rule 16. Whatever standard a fingerprint expert chooses to

use to determine a match—whether it be a set number of Gal-

ton points or a combination of points and quality—the basis

for the opinion that two prints are a match must be disclosed,

upon the defendants’ request.

In fact, being such a crucial, yet subjective, variable in the

process arguably makes the number of points and what those

points are even more important. Without knowing the Galton

points used by the government’s expert in advance, a defend-

ant’s ability to prepare an attack on the validity of the identi-

fication may be hindered. See Robinson, 44 F. Supp. 2d at 1346

(finding that the defendant’s expert was unable to review the

basis of the opinion rendered by the government’s fingerprint

expert where the government did not properly disclose the

location of each point of comparison).

Having concluded it was error not to disclose the Galton

points we must still determine whether the error was harm-

less. In determining whether an evidentiary error is harmless,

we consider whether the prosecution’s case would have been

significantly less persuasive in the mind of the average juror

if the erroneously admitted evidence had been excluded.

Thornton, 642 F.3d at 605. Here, there was an abundance of

other evidence supporting the government’s case against the

defendants. The surveillance photographs and videos of the

Nos. 13-3863, 13-3910 13

defendants coming and going from Up Top, the physical evi-

dence from the trash pulls, and the testimony of the co-con-

spirators are all pieces of evidence that make the govern-

ment’s case a strong one. So without the fingerprint testimony,

there was plenty of strong evidence for the jury to determine

the defendants’ guilt, and the government’s case would not

have been significantly less persuasive. While the district

court should have required the government to supplement its

disclosure, admission of the evidence was harmless.

2. Traffic Stop Stipulation Properly Admitted

Next, the defendants argue that the district court erred in

admitting a stipulation relating to the flight and traffic stop of

Carr and Price on November 16, 2007. They assert that the ev-

idence was irrelevant and that even if it was relevant, its prej-

udicial effect outweighed its probative value under Federal

Rule of Evidence 403. Normally, we review a district court’s

decision to admit evidence for abuse of discretion and will re-

verse and order a new trial only if the evidentiary error was

not harmless. United States v. Boone, 628 F.3d 927, 932 (7th Cir.

2010). However, the defendants only objected on relevancy

grounds at trial, and that kind of objection does not preserve

an error under FRE 403. United States v. Wilson, 966 F.2d 243,

246 (7th Cir. 1992). Since the defendants forfeited their FRE

403 challenge by not raising it to the district court, we review

now only for plain error. See id.; see also Cloe v. City of Indian-

apolis, 712 F.3d 1171, 1181 n.6 (7th Cir. 2013). Before an appel-

late court can correct an error not raised at trial, there must be

(1) error, (2) that is plain and (3) that affects substantial rights.

United States v. Price, 418 F.3d 771, 785 (7th Cir. 2005). Since we

14 Nos. 13-3863, 13-3910

have concluded that there was no error in admitting the stip-

ulation, we will not address the other prongs of the plain error

test.

The district court was correct to admit the traffic stop evi-

dence because it was clearly relevant as it helped to establish

the government’s theory that Price headed a conspiracy to dis-

tribute heroin based out of Up Top. The presence of heroin

packets inside the car with Price, when it left Up Top, was rel-

evant to the question of whether the defendants and their co-

conspirators conspired at Up Top to distribute heroin sup-

plied by Price.

The defendants claim that there was not adequate evi-

dence to show that Carr’s and Price’s actions on November 16

furthered the conspiracy in which they participated. Specifi-

cally, they rely on a statement made by co-conspirator Lee on

cross-examination—that Lee had been involved in two differ-

ent heroin conspiracies, one from 2007 to 2008 that included

the defendants and one from 2009 to 2010 that included

Carr—to suggest that Carr was not involved in a conspiracy

with the defendants. But Lee’s statement was just a reference

to the fact that he was under indictment for the 2009–2010

conspiracy in a separate case in front of Judge Bucklo, and

that he was not under indictment for the 2007–2008 conspir-

acy which is the subject of this case. He did not say that Carr

did not participate in the 2007–2008 conspiracy. In fact, wit-

nesses at trial, including Lee, testified that Carr was involved

in distributing heroin supplied by Price during the same time

as the defendants.

In the alternative, defendants argue that even if the evi-

dence was relevant, it was unduly prejudicial. Evidence is un-

fairly prejudicial if it induces the jury to decide the case on an

Nos. 13-3863, 13-3910 15

improper basis rather than on the evidence presented. United

States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). Here, the

defendants argue that the evidence was unfairly prejudicial

because it could have caused the jury to improperly impute

the crimes of others to the defendants and because it allowed

the government to unfairly lend credence to the testimony of

co-conspirators by using the testimony of law enforcement.

But the evidence was not unfairly prejudicial. Surveillance ev-

idence had already established the presence of the defendants

at Up Top, and the co-conspirators’ testimony had established

their involvement in the conspiracy. The very nature of a con-

spiracy charge is that co-conspirators may sometimes be held

accountable for the wrongful acts of other members of the

conspiracy. The stipulation had probative value because her-

oin was found in the possession of co-conspirators after they

left the headquarters of the conspiracy. Under these circum-

stances, the probative value of the stipulation was not sub-

stantially outweighed by any unfair prejudice.

B. Sentencing Issues

The defendants also raise two issues related to their sen-

tencing. First, they argue that the jury specifically found that

less than one kilogram was involved in the offense, and the

district court should not have reconsidered that finding. Sec-

ond, they contend that the district court erred in reaching its

drug quantity finding by failing to articulate a reliable meth-

odology for arriving at the number. When reviewing sentenc-

ing determinations under the Guidelines, we review the dis-

trict court’s legal conclusions de novo and its findings of fact

for clear error. United States v. Smith, 308 F.3d 726, 743–44 (7th

Cir. 2002).

16 Nos. 13-3863, 13-3910

1. Jury Finding of Drug Quantity

The defendants argue that the jury determined that the

conspiracy involved less than one kilogram of mixtures con-

taining heroin, and that determination precluded the judge

from finding that the conspiracy involved more than one kil-

ogram. At the conclusion of the trial, the court gave the fol-

lowing instruction to the jury:

If … you find the defendant guilty as charged in

Count One, you will be required to determine

separately the quantity of controlled substances

that you find the government has proved. I will

address this further when I discuss the verdict

form with you.

The government submitted, and the district court

adopted, a form which reads as follows:

… [W]e, the jury, find that the offense charged

in the indictment involved the following type of

controlled substances in the amount shown be-

low.

(A) Mixtures containing heroin

[check one line only]

1000 grams or more of mixtures _____

containing heroin

At least 100 grams of mixtures

containing heroin but less than _____

1000 grams

Nos. 13-3863, 13-3910 17

A detectable amount but less than

100 grams of mixtures containing _____

heroin

The jury marked the second line. The instructions on the

actual verdict form that precede the drug quantity amounts

are somewhat inconsistent. First they ask the jury to “find the

type and amount of controlled substances involved in the of-

fense charged in the indictment that have been proved beyond a

reasonable doubt” (emphasis added). The form then defines

the type and amount of controlled substances involved in the

offense as “the type and amount of controlled substances that

you find, beyond a reasonable doubt” were involved in the of-

fenses (emphasis added). The defendants argue that the cor-

rect reading of the form is that the jury made two distinct fac-

tual findings beyond a reasonable doubt: first, that the offense

involved more than 100 grams of heroin, and second, that the

offense involved less than 1,000 grams of heroin. Their argu-

ment is supported by the inconsistent nature of the form. It is

unclear on the face of the form whether the jury was being

asked to find, beyond a reasonable doubt, the highest possible

amount of drugs involved in the conspiracy, or whether it was

being asked the highest drug quantity the government had

proven beyond a reasonable doubt. If the jury was simply de-

ciding the drug quantity the government had proven beyond

a reasonable doubt, by checking the second line it was effec-

tively acquitting the defendants of a conspiracy involving

more than 1,000 grams of heroin. If instead the jury under-

stood its task to be to specifically find the quantity of drugs in-

volved in the conspiracy, then by checking the second option

it was not merely acquitting the defendants of a conspiracy

18 Nos. 13-3863, 13-3910

involving more than 1,000 grams of heroin, it was finding be-

yond a reasonable doubt that defendants did not participate in

such a conspiracy. The defendants argue that the second read-

ing is the correct one, and by selecting the second option, the

jury was convinced, beyond a reasonable doubt, that the

amount of drugs involved in the conspiracy was less than

1,000 grams.

We disagree. While the form is somewhat confusing, the

most logical interpretation is that the jury was being asked to

select the heroin quantity that the government had proven be-

yond a reasonable doubt. By checking the second option, the

jury merely found that the government had failed to carry its

burden to prove beyond a reasonable doubt that more than

1,000 grams of heroin were involved. There are several rea-

sons that this is the most plausible reading of the form. First,

the government always carries the burden of proof in a crim-

inal case, and part of its burden is to establish threshold drug

quantities beyond a reasonable doubt to establish statutory

penalty ranges. See Alleyne v. United States, 133 S. Ct. 2151

(2013). The jury was reminded of the government’s burden

when it received instructions about its findings of guilt. It

makes little sense that the jury would construe the govern-

ment’s efforts in prosecuting the defendants to be “proving”

that the conspiracy involved less than a certain drug quantity.

Second, throughout the trial, it was clear that the govern-

ment’s intent was to prove the conspiracy involved a higher

quantity of drugs than 1,000 grams. The indictment charged

the defendants with a conspiracy involving 1,000 grams or

more of heroin. Third, neither party introduced any evidence

supporting or even suggesting that the drugs involved were

less than 1,000 grams—a fact that the defendants now insist

was proven beyond a reasonable doubt. And finally, both the

Nos. 13-3863, 13-3910 19

drug quantity verdict instruction and the special verdict form

explicitly ask the jury to determine what drug quantity the

government has proved. So while the form may have been im-

precise, the jury was clearly apprised that its role was to de-

termine if the government had met its burden of proof.

Because we believe the form cannot be properly read as a

factual finding that less than 1,000 grams were involved, the

sentencing court was permitted to find a higher drug quantity

by a preponderance of the evidence. See United States v. Watts,

519 U.S. 148, 157 (1997) (per curiam) (explaining that judicial

fact-finding of acquitted conduct is permissible because a jury

cannot be said to have “necessarily rejected” any facts when

it returns a general verdict of not guilty); Alleyne v. United

States, 133 S. Ct. 2151, 2169 (2013) (Roberts, C.J., dissenting)

(“the judge was free to consider any relevant facts … includ-

ing facts not found by the jury beyond a reasonable doubt”).

However, it bears mentioning that the court could have

avoided this confusion by simply following the Seventh Cir-

cuit’s Pattern Instruction, which contains a special verdict in-

struction on drug quantity findings. It recommends instruct-

ing the jury to answer “Yes” or “No” to the question of

whether the government has proven a specific threshold drug

quantity. See Pattern Criminal Jury Instructions of the Seventh

Circuit, Drug Quantity/Special Verdict Instructions (2012) at

648. 1 Part of the reason for asking “Yes” or “No” questions is

1 The full text of the special verdict pattern instruction reads: “If you find

that the government has proven beyond a reasonable doubt that the of-

fense involved [insert quantity; e.g., 5 kilograms or more of cocaine], then

you should answer the [first] question ‘Yes.’ [If you answer ‘Yes,’ then you

need not answer the remaining question[s] regarding drug quantity for

20 Nos. 13-3863, 13-3910

to avoid the confusion that can result from asking the jury to

select between different ranges of drug quantities. See United

States v. Washington, 558 F.3d 716, 718, n. (7th Cir. 2009). While

we conclude that the district court did not err in applying

Watts to the jury’s findings, we stress the importance of using

the special verdict pattern instruction. In the event that a spe-

cial verdict instruction is a poor fit, then the court must craft

a verdict form that clearly spells out the task given to the jury.

2. No Error in District Court’s Drug Quantity

Methodology and Finding

Finally, the defendants maintain that the district court

committed clear error in its drug quantity calculation at sen-

tencing by not articulating a clear basis or methodology for

arriving at its heroin quantity finding. We review a district

court’s determination of the quantity of drugs involved in an

offense for clear error. United States v. Claybrooks, 729 F.3d 699,

706 (7th Cir. 2013). “We will not upset a district court’s factual

that count.]. If you find that the government has not proven beyond a rea-

sonable doubt that the offense involved [insert quantity; e.g., 5 kilograms

or more of cocaine], then you should answer the [first] question ‘No.’ If

you answer the first question “No,” then you must answer the next ques-

tion. That question asks you to determine whether the government has

proven beyond a reasonable doubt that the offense involved [insert lesser

quantity; e.g., 500 grams or more of cocaine]. If you find that the govern-

ment has proven beyond a reasonable doubt that the offense involved [in-

sert lesser quantity; e.g., 500 grams or more of cocaine], then you should

answer the second question ‘Yes.’]. If you find that the government has

not proven beyond a reasonable doubt that the offense involved [insert

lesser quantity; e.g., 500 grams or more of cocaine], then you should an-

swer the second question ‘No.’”

Nos. 13-3863, 13-3910 21

findings unless we are left with the definite and firm convic-

tion that a mistake has been committed.” Id. (citations omit-

ted).

For defendants convicted of drug-related offenses, a deter-

mination of the quantity of narcotics involved is an essential

part of the sentencing analysis, as it is often a large determi-

nant of the base offense level. Id. Because of the significance

attached to the amount of drugs involved in the offense, “we

require that a sentencing court make an explicit drug-quantity

finding and explain how it arrived at the sentence.” United

States v. Palmer, 248 F.3d 569, 571 (7th Cir. 2001). “A district

court cannot simply select a number without at least some de-

scription of the reliable evidence used to support the finding

and the method used to calculate it.” Claybrooks, 729 F.3d at

707. Still, we recognize that calculation of the amount of drugs

involved is an “inexact science” and we allow some room for

“reasoned speculation and reasonable estimation.” Id. (cita-

tions omitted).

The defendants claim that the district court erred in rely-

ing on evidence to calculate the drug quantity that it did not

fully credit. In their view, there was no description of the reli-

able evidence used to arrive at the final figure. We disagree.

Based on the sentencing transcript, we can readily discern

what evidence the district court relied on to arrive at its find-

ing. Cf. Claybrooks, 729 F.3d at 707 (reversing sentence where

court did not provide a basis for its drug quantity finding).

The court’s final number—3.69 kilograms—resulted from a

mathematics calculation: a ratio of 13 grams of Dormin to 5

grams of heroin and 143 bottles of Dormin recovered during

six trash pulls yields 3.69 kilograms of heroin. The district

22 Nos. 13-3863, 13-3910

court initially questioned the reliability of such a precise as-

serted ratio, stating that this was “not Johnson & Johnson”

and the jury’s finding indicated some credibility issues with

the cooperating witnesses who testified about the ratio, since

the jury had rejected a higher drug quantity finding. But the

court ultimately accepted that the heroin was mixed at this

ratio when the government responded that Price’s heroin was

known for its “trademark” ratio, that he used red tape to wrap

his heroin in order to distinguish it, and that he was known

on the street for having excellent quality heroin because of

this ratio.

While the defendants analogize this case to Claybrooks,

where we reversed the district court’s drug quantity finding,

Claybrooks is distinguishable. In Claybrooks, the district court

rejected the methodology used in the Presentence Investiga-

tion Report to arrive at a drug finding, but did not indicate

another basis for arriving at its number. Id. at 707. Here, while

the court was initially skeptical about the government’s ratio,

it was presented with additional argument as to why the ratio

was accurate and ultimately accepted the ratio as reliable.

The district court did not calculate 3.69 kilograms because

it was “split[ting] the difference” between the government’s

theory and the jury’s verdict, or selecting a number that was

in the middle simply for the sake of compromise. Cf.

Claybrooks, 729 F.3d at 707; United States v. Dean, 574 F.3d 836,

845 (7th Cir. 2009). Instead, it based its calculation on the pro-

posed ratio and the actual number of recovered Dormin bot-

tles. Its responses provide enough for us to discern the relia-

ble evidence that it used to make its calculation and we will

not reverse under these circumstances.

Nos. 13-3863, 13-3910 23

III. CONCLUSION

For the foregoing reasons, we AFFIRM the defendants’ con-

victions and sentences.

24 Nos. 13-3863, 13-3910

MANION, Circuit Judge, concurring in part and dissent-

ing in part.

I agree with the court’s analysis of the evidentiary is-

sues, but disagree with its analysis of the sentencing is-

sues, particularly regarding its treatment of the jury find-

ing as opposed to the district-court finding for the drug

quantity involved in Saunders’ and Bounds’ convictions.

The jury in this case found beyond a reasonable doubt

that the drug amount was between 100 grams and 1 kilo-

gram. This necessarily implies that the jury found the of-

fense did not involve 3.69 kilograms, but at sentencing, the

district court found a 3.69-kilogram amount. These find-

ings are irreconcilable. By its finding, the district court

overrode the jury’s decision. The Sixth Amendment does

not allow this. I dissent from this aspect of the court’s de-

cision, but join in all other aspects.

This is the critical piece of the jury form at issue: the

jury checked the line stating that the charged offense in-

volved “[a]t least 100 grams of mixtures containing heroin

but less than 1000 grams.” When interpreting this sen-

tence, the court states that the defendants were convicted

of possessing more than 100 grams, but concludes that the

jury “was effectively acquitting the defendants of a con-

spiracy involving more than 1,000 grams of heroin.”

A straightforward reading of the jury-verdict form

does not allow this court to find an “effective acquittal.”

The jury does not—in a single sentence, passing judgment

on one count—actually convict and effectively acquit.

Here, the jury convicted Saunders and Bounds of a capped

drug quantity, and its verdict should stand.

Nos. 13-3863, 13-3910 25

The court’s decision today is troubling for two reasons:

it misinterprets the jury-verdict form and misapplies

United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).

I briefly address these issues in turn.

I. The Jury Form States Specific, Binding Findings.

This court treats the jury form as a “somewhat confus-

ing” document which requires “interpretation.” 1 As the

court writes, this verdict form first asks the jury to “find

the type and amount of controlled substances involved in

the offense charged in the indictment that have been proved

beyond a reasonable doubt” (emphasis added). It then dis-

cusses “the type and amount of controlled substances that

you find, beyond a reasonable doubt” (emphasis added).

As a matter of law, these phrases present no contradiction.

These two concepts merge in the jury-verdict form: “what

has been proved” is “what the jury finds.” See, e.g., Cun-

ningham, 549 U.S. at 282 (“must be submitted to a jury, and

1 The form is not confusing. It offered three options: (1) “1000

grams or more of mixtures containing heroin”; (2) “At least 100 grams

of mixtures containing heroin but less than 1000 grams”; or (3) “A de-

tectable amount but less than 100 grams of mixtures containing her-

oin.”

If the jury selected its first option, this would have directed the

district court to apply the sentencing range found in 21 U.S.C. §

841(b)(1)(A)(i): ten years to life. Under the second option, the district

court would apply Section 841(b)(1)(B)(i): five to 40 years. Section 841

would not have been triggered if the jury chose option three.

These are logical options presented to the jury, with serious stat-

utory consequences for sentencing, and the jurors in this case chose a

defined amount. They set the confining brackets for the sentencing

range.

26 Nos. 13-3863, 13-3910

proved beyond a reasonable doubt.”). By suggesting that

“what is proved at trial” is different from “what the jury

verdict says,” the court renders either the trial or the jury

superfluous.

When interpreting this supposed conflict, the court

concludes that the most logical interpretation is this: when

the jury checked the line saying that the offense involved

“[a]t least 100 grams … but less than 1000 grams,” what

the jury actually meant was that “the government failed to

prove beyond a reasonable doubt that more than 1,000

grams of heroin were involved.” The court’s reading

switches the standard of proof halfway through the jury-

form sentence, from finding that something was estab-

lished beyond a reasonable doubt (“at least 100 grams”) to

finding that something was not established beyond a rea-

sonable doubt (“less than 1000 grams”). But this court

should not call half of the conviction a conviction and call

the other half an acquittal. On its plain language, the jury

verdict maintains the same standard of proof through the

sentence and makes a simple finding: beyond a reasonable

doubt, the defendants had between 100 and 1,000 grams

of heroin.

Because the jury-verdict language is clear, any confu-

sion should not be interpreted in the government’s favor.

The court explains its decision with three reasons: (1) the

government carries the burden of proving threshold drug

quantities; (2) the government clearly intended to prove

that the conspiracy involved more than 1,000 grams of her-

oin; and (3) neither party introduced evidence that the de-

fendants had less than 1,000 grams. This reasoning has

three implications. First, if the government has the burden

Nos. 13-3863, 13-3910 27

of proof, this court will construe jury findings in the gov-

ernment’s favor. Second, if the government intended to

prove something at trial, questions about whether the jury

agreed with the government can be decided based on

what the prosecutor sought. Third, if a defendant does not

affirmatively introduce evidence that contradicts what the

government intends to prove, the benefit of doubt again

goes to the government. This set of assumptions removes

the need for a jury.

In fact, there is a straightforward way to resolve any

confusion about what the jury intended here. If the jury

agreed with the government’s intended outcome, the jury

could have simply checked the line on the jury form which

said “1000 grams or more.” That answer would have, in

the plainest terms, affirmed the argument that the govern-

ment made at trial.

Instead, the jury filled out its verdict form differently.

When asked to indicate “that the offense charged in the

indictment involved the following type of controlled sub-

stances in the amount shown below,” the jury checked this

line: “At least 100 grams of mixtures containing heroin but

less than 1000 grams.” The defendants were convicted of

an offense involving that amount and no more. There is

nothing ambiguous about this jury finding; there is no ac-

quittal to be found in the conviction. The Sixth Amend-

ment protects this jury decision.

II. Watts Is an Acquittal Case, Not a Conviction Case.

In its ruling today, the court affirms the district court’s

application of Watts to this case. It should not. Watts stands

28 Nos. 13-3863, 13-3910

for the simple principle that a sentencing court may con-

sider conduct underlying an acquitted charge if that un-

derlying conduct is proven by a preponderance of the ev-

idence. Watts, 519 U.S. at 157. Watts is therefore factually

and legally distinguishable from this case. Instead of an

acquittal, this case features an affirmative jury finding of

fact.

An acquittal is a legal conclusion, “not a finding of any

fact,” and it “can only be an acknowledgment that the gov-

ernment failed to prove an essential element of the offense

beyond a reasonable doubt.” See id. at 155 (internal quota-

tion marks omitted). For example, a jury might acquit a

defendant of burglary after he readily conceded that he

broke into a home to steal property, but did so at noon.

Breaking in at night is an essential element of the crime.

When a district judge considers relevant conduct at sen-

tencing, it would be correct for the judge to consider the

breaking and entering; the defendant, after all, conceded

this fact. There is no contradiction. Indeed, the acquittal

says nothing about particular facts except that the govern-

ment lacked enough evidence to prove each element of the

charge. With regard to an acquitted count, the government

may well have proven several predicate facts that the dis-

trict court could later consider when sentencing the de-

fendant for a different, convicted count in the same case.

The government just did not prove all the facts necessary

for a conviction on the acquitted count.

A close reading of Watts shows no contradiction be-

tween its jury verdict and its sentencing judge’s finding:

the jury there acquitted Vernon Watts of using a firearm in

connection with a drug charge, which simply meant that

Nos. 13-3863, 13-3910 29

the government failed to prove this charge beyond a rea-

sonable doubt. Under those facts, when deciding Watts’s

sentence on the convicted drug charge, the sentencing

judge could find by a preponderance that Watts possessed

guns in connection with the drug charge. See id. at 150. As

the Supreme Court observed, “That [acquittal] verdict

does not preclude a finding by a preponderance of the ev-

idence that the defendant did, in fact, use or carry such a

weapon, much less that he simply possessed the weapon in

connection with a drug offense.” Id. at 157 (emphasis in

original). In contrast, the two results in this case cannot

square: the defendants cannot have (1) possessed less than

1 kilogram and (2) also possessed 3.69 kilograms. By flatly

contradicting the jury’s express factual finding, the sen-

tencing judge in this case violated the Sixth Amendment

rights of Saunders and Bounds. And if the jury system is

to mean anything, this outcome is a problem.

For these reasons, I respectfully dissent.