United States v. Guzman

UNITED STATES OF AMERICA Plaintiff-Appellee, v. GIOVANY F. GUZMAN, Defendant-Appellant.

No. 21-2598

United States Court of Appeals, Seventh Circuit

March 21, 2022

NONPRECEDENTIAL DISPOSITION

Submitted March 18, 2022 ^[*]

Appeal from the United States District Court for the Southern District of Illinois. No. 3:20-CR-30139-SMY-1 Staci M Yandle, Judge.

Before MICHAEL S. KANNE, Circuit Judge DAVID F. HAMILTON, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge

ORDER

A jury found Giovany Guzman guilty of possessing an alcoholic beverage in prison, for which he was sentenced to a further six months' imprisonment. 18 U.S.C. § 1791(a)(2) (c), (d)(1)(D). Guzman now contests the sufficiency of the evidence that there was intoxicating ethanol or other alcohol in the bag of pungent fruit slop found in his locker. But a prison guard testified that Guzman admitted a search of his cell would uncover "hooch"; the guard then found the bag, whose contents smelled of alcohol; and other guards used a breathalyzer to test a puff of air from the bag and confirm the presence of alcohol. That evidence is sufficient, so we affirm.

Background

At a three-day jury trial, the witnesses testified as follows. Guzman is a federal prisoner at FCI Greenville in Illinois. In summer 2020 his cellmate told officer Kendall Clavin that Guzman was hiding a knife in their cell. When Clavin and his supervisors started their search, they asked Guzman what they would find. Making no reference to any weapon, Guzman replied, "hooch"-which Clavin testified is slang for homemade alcohol.

When Clavin opened Guzman's locker within the cell, he indeed smelled alcohol and found a plastic bag containing a mush of fruits and liquid. Prior experience told Clavin that the bag contained homemade alcohol-the hooch Guzman had referred to. (Clavin also testified that he found a seven-inch long piece of sharp metal behind Guzman's locker. We say no more about the putative weapon outside his locker because the jury acquitted him of possessing weapons.)

Clavin gave the bag to officer Edward Bauer, who in turn took it to a supervisor who showed Bauer how to use a breathalyzer to confirm the presence of alcohol. Specifically, the officers opened the bag, put the breathalyzer's straw inside, and then squeezed the bag to force air through the straw. The breathalyzer gave a positive reading for alcohol. This squared with Bauer's observation (and Clavin's) that the bag's odor resembled that of homemade alcohol found at the prison on other occasions.

This use of a breathalyzer, according to Bauer's testimony, was unorthodox, and no witness offered details about the maintenance and calibration of the device. Indeed, breathalyzers are designed to test intoxicated humans, not intoxicating beverages. But at trial Guzman did not contest the admissibility of the breathalyzer result. Nor did he seek to suppress his statements to prison guards, present his own evidence, or request a jury instruction defining "alcoholic beverage" with greater specificity.

Analysis

On appeal Guzman challenges the sufficiency of the evidence that the bag of mush contained alcohol. Our task is to decide whether a rational factfinder could have found the essential elements proven beyond a reasonable doubt, giving the government the benefit of all reasonable inferences from the evidence. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We view the record holistically, see United States v. Morrow, 5 F.4th 808, 816 (7th Cir. 2021), and will reverse only if "the record contains no evidence regardless of how it is weighed, from which the [jury] could find guilt beyond a reasonable doubt," United States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) (internal quotation omitted).

Three mutually reinforcing pieces of evidence support the jury's determination that the bag contained alcohol. First, Guzman told correctional officers that they would find alcohol in his cell. Second, Clavin recovered from Guzman's locker a plastic bag containing a mushy liquid that smelled strongly of alcohol. Third, Bauer and his supervisor tested the bag using a breathalyzer, which indicated the presence of alcohol. But we need not opine on or otherwise consider the strength of the breathalyzer evidence, because the scent of alcohol and Guzman's confession to possessing hooch corroborate each other and suffice to support the conviction. See United States v. Turner, 709 F.3d 1187, 1195-96 (7th Cir. 2013) (evidence based on appearance of a substance, together with contextual clues, strongly probative that it contained narcotics); accord Derosiers v. District of Columbia, 19 A.3d 796, 800 (D.C. 2011) (officers' sensory experience sufficient to show beverage contained alcohol); State v. Bohl, 317 N.W.2d 790, 794-95 (N.D. 1982) (same); cf. Reid v. District of Columbia, 980 A.2d 1131, 1132 (D.C. 2009) (where defendant denies to officer that substance is alcohol, and absent any other evidence, breathalyzer test of liquid insufficient to prove it contained alcohol).

Still Guzman now seeks to define alcohol as "ethanol" or an "intoxicating beverage" and questions whether the bag instead contained something else; perhaps he means it could have held a poisonous alcohol like methanol (a possible byproduct of distilling liquor). But he raises this argument for the first time on appeal. By first failing to propose a definition of alcohol at trial and then endorsing the final instructions, Guzman waived any challenge to the omission of an instruction defining alcohol. See United States v. LeBeau, 949 F.3d 334, 341-42 (7th Cir. 2020). In any...