# 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, J udge

.

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 fur ther six months’ imprisonment. 18 U.S.C. § 1791(a)(2), (c), (d)(1)(D). Guzman now contes ts the sufficiency of the evidence that

* We have agreed to decide the case wi thout 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 NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with F ED

. R. A PP

. P. 32.1No. 21-2598 Page 2

there was intoxicating ethanol or other alcoho l 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 seve n-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 Baue r, 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, pu t 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 fo und 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 mainte nance and calibration of the device. Indeed, breathalyzers are designed to test intoxica ted humans, not intoxicating beverages. But at trial Guzman did not contest the admissibi lity of the breathalyzer result. Nor did he seek to suppress his statements to prison gu ards, present his own evidence, or request a jury instruction defining “alcoholic beverage” with greater specificity.No. 21-2598 Page 3

Analysis

On appeal Guzman challenges the suffic iency 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 ev idence 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 re covered from Guzman’s locker a plastic bag containing a mushy liquid that smelled stro ngly of alcohol. Third, Bauer and his supervisor tested the bag using a breathalyze r, which indicated the presence of alcohol. But we need not opine on or otherwise cons ider 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 alco hol as “ethanol” or an “intoxicating beverage” and questions whether the bag inst ead contained something else; perhaps he means it could have held a poisonous alco hol like methanol (a possible byproduct of distilling liquor). But he raise s this argument for the first time on appeal. By first failing to propose a definition of alcohol at tria l and then endorsing the final instructions, Guzman waived any challenge to the omissi on 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,No. 21-2598 Page 4

and the testimony that Guzman admitted it was “hooch” would permit reasonable jurors to draw the common-sense infere nce 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 co nsidering circumstantial evidence).

Guzman posits that this view is too speculative under United States v. Garcia , in which we held that a government agent’s in terpretation of an elaborate system of codewords in intercepted phone calls, withou t more, was insufficient to prove that the defendant was guilty of distributing co caine. 919 F.3d 489, 503–04 (7th Cir. 2019). For instance, in Garcia the government relied on office r 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 corro borated Guzman’s characterization of the mush as hooch; reciprocally, his characterizatio n 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 suffici ent to prove beverage contained alcohol).

Even if there were other plausible inte rpretations of the evidence—and Guzman does not suggest an alternative explanatio n for what the recovered mush might have been—we will not reweigh it. And because th e record demonstrates a sound basis for the jury’s verdict, we will not set the judgment aside.

We therefore AFFIRM Guzman’s conviction.