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United States v. Saunders

United States Court of Appeals, Seventh Circuit

June 10, 2016

United States of America, Plaintiff-Appellee,
Christopher Saunders and Rashid Bounds, Defendants-Appellants.

          Argued January 22, 2015

         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.

          Before Easterbrook, Manion, and Williams, Circuit Judges.


         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 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 testimony 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 regarding a traffic stop of two alleged co-conspirators who drove away from the police while tossing packets that resembled 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 finding. 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 kilogram 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 basis for its calculation of the drug quantity. Therefore, we affirm the defendants' convictions and sentences.

         I. BACKGROUND

         In July 2012, defendants Christopher Saunders and Rashid Bounds, along with Joenathan Penson and Terrence Penson, were charged with conspiring to possess with intent to distribute 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. Saunders 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 November 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 defendants 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 apartment. 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 sleeping pill, to create larger quantities of product. They packaged the heroin mixtures, took turns making deliveries, and collected 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 during the conspiracy period. The investigation also produced evidence from six weekly trash pulls from outside Up Top. Evidence of heroin mixing and packaging was found, including Dormin bottles, cardboard Dormin containers, red plastic capsules, aluminum foil pieces, plastic baggies and their empty cardboard containers, and spools of tape. From this evidence, 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 Analysis, 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 allowed the expert testimony, without requiring pre-trial disclosure 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 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 preference 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 identification between the latent prints from the trash pulls and the defendants' 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 identification 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 expert. 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 regarding 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 stipulation 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 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 objected to its relevance. The judge overruled the objection, finding 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 special verdict form which stated that if the jury found the defendants 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 mixtures containing heroin; (2) at least 100 grams of mixtures containing 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 proposed that more than 10 kilograms of heroin were involved in the conspiracy. The government based its proposed calculation 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 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 contended 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 kilograms.

         The defense argued that the jury's drug quantity selection indicated that it did not find the cooperating witnesses' testimony, including the quantity of drugs involved in the conspiracy, 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 Dormin bottles were collected in only six weeks of the four-month conspiracy.

         The district court's drug quantity finding put the defendants 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' maximum Guidelines level would have been 33, with a sentencing range of 168-210 months. Ultimately, the defendants were sentenced below the Guidelines range determined by the district court to 216 months in prison. Saunders and Bounds appeal 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 decisions. First, they argue that the district court abused its discretion in admitting the government's fingerprint expert testimony without requiring the government to disclose the bases and reasons for the expert's opinions. Second, they claim that the ...

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