January 22, 2015
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.
Easterbrook, Manion, and Williams, Circuit Judges.
WILLIAMS, CIRCUIT JUDGE.
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.
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.
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
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.
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.
Rule 16 Disclosure
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.
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.
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
Traffic Stop Stipulation
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
Verdict and Sentencing
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.
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.
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.
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.
defendants raise four arguments on appeal. Two are
evidentiary and two are related to their sentencing. We will
discuss each in turn.
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 ...