United States of America v. Giovany F. Guzman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 18, 2022 *
Decided March 21, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-2598
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
GIOVANY F. GUZMAN,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 3:20-CR-30139-SMY-1
Staci M. Yandle,
Judge.
O R D E R
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
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, the parties waived oral
argument, and oral argument would not significantly aid the court. F ED. R. A PP.
P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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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.

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No. 21-2598 Page 3
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 event, even if we
assumed that the liquid must include a non-zero amount of drinkable ethanol, the
evidence here would suffice: the appearance and smell of the bag’s contents, the lack of
an alternative explanation for the mush or a reason to think toxic methanol was present,

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and the testimony that Guzman admitted it was “hooch” would permit reasonable
jurors to draw the common-sense inference that Guzman possessed ethanol for
drinking. See United States v. Johnson, 916 F.3d 579, 586 (7th Cir. 2019) (juries should
make common-sense inferences when considering circumstantial evidence).
Guzman posits that this view is too speculative under United States v. Garcia, in
which we held that a government agent’s interpretation of an elaborate system of
codewords in intercepted phone calls, without more, was insufficient to prove that the
defendant was guilty of distributing cocaine. 919 F.3d 489, 503–04 (7th Cir. 2019). For
instance, in Garcia the government relied on officer testimony that “girl” meant
“cocaine” and “work” meant “drug dealing” in the relevant drug markets, and from
that starting point argued that Garcia’s cryptic phone conversations hid—and proved—
drug distribution. Id. at 494–95, 503–04.
Here, Guzman likens the prison guards’ testimony to the agent’s parsing of
obscure drug-dealer codes in Garcia. But the government did not rely on that sort of
decoding here. According to the testimony, Guzman admitted that officers would find
hooch, a term more readily understood than the cryptic language in the Garcia calls.
More importantly, here—unlike in Garcia—officers recovered the substance at issue. It
was retrieved from Guzman’s locker, smelled to two officers like alcohol, contained a
fruity mush consistent with prison alcohol they had encountered before, and lacked any
innocent explanation. That evidence corroborated Guzman’s characterization of the
mush as hooch; reciprocally, his characterization of it reinforced what the officers’ noses
and experience told them. See United States v. O’Leary, 957 F.3d 731, 733 (7th Cir. 2020)
(corroborated confession sufficient to support conviction); Turner, 709 F.3d at 1195–96
(circumstantial evidence of crack cocaine, including lay testimony on substance’s
physical characteristics, strongly supported conviction); cf. Reid v. United States, 44 F.2d
51, 53 (7th Cir. 1930) (“[I]t is a generally well-known fact that alcohol … especially in the
process of making, [has] a very penetrating odor.”); Derosiers, 19 A.3d at 799–800 (police
experience and sensory observation sufficient to prove beverage contained alcohol).
Even if there were other plausible interpretations of the evidence—and Guzman
does not suggest an alternative explanation for what the recovered mush might have
been—we will not reweigh it. And because the record demonstrates a sound basis for
the jury’s verdict, we will not set the judgment aside.
We therefore AFFIRM Guzman’s conviction.

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