In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1491 & 00-1348

United States of America,

Plaintiff-Appellee,

v.

Guy J. Westmoreland,

Defendant-Appellant.



Appeals from the United States District Court
for the Southern District of Illinois.
No. 98 CR 30022--William D. Stiehl, Judge.


Argued September 6, 2000--Decided February 15, 2001




       Before Cudahy, Coffey, and Ripple, Circuit Judges.

      Cudahy, Circuit Judge. A jury convicted Guy
Westmoreland of conspiracy to distribute a
controlled substance, in violation of 21 U.S.C.
sec. 846. Westmoreland now appeals, arguing that
(1) certain hearsay statements should not have
been admitted into evidence; (2) certain factual
determinations made by the trial judge should
instead have gone to the jury; and (3) his motion
for a new trial should have been granted. We
affirm Westmoreland’s conviction, but vacate his
sentence.


I.   BACKGROUND
A.   Facts

      Westmoreland operated a gas station in downtown
St. Louis, Missouri. This station supplied fuel
to Jeffco Trucking, a neighboring over-the-road
trucking company that was owned and operated by
Richard Abeln and his wife, Deborah (for clarity,
we will occasionally refer to members of Abeln’s
family by their first names). Abeln also owned a
private airplane and CRT Aviation, an aircraft
hangar and fueling business at the St. Louis
Downtown Parks Airport in Sauget, Illinois.

      In the spring of 1997, Westmoreland and Abeln
entered into the drug distribution business
together. In broad terms, the enterprise appears
to have worked as follows. Westmoreland had at
least one drug connection in Texas that supplied
Abeln with the cocaine and marijuana he imported
into the St. Louis area using his private
airplane. While Westmoreland initially
accompanied Abeln on his flights to Texas, they
eventually recruited Anthony Jestis, a pilot and
employee of Jeffco Trucking, to make the flights.
Once the drugs were flown back to St. Louis,
Westmoreland picked them up, sold them and
reimbursed Abeln at a rate that was double what
Abeln had originally paid.

      At some point after the formation of the drug
business, Abeln told Westmoreland that he was no
longer happy with his marriage. Reasoning that he
could not afford to go through a divorce, and
learning from Westmoreland that he would be able
to hire someone to kill his wife for only $1,000,
Abeln decided to arrange for the murder of his
wife. According to Abeln’s later confession, his
wife knew of the drug business, and he told
Westmoreland this in order to induce Westmoreland
to help him plan the murder. Abeln then plotted
his wife’s murder with Westmoreland and Deandre
Lewis, an employee at Westmoreland’s gas station.
Finally, on December 27, 1997, Abeln spoke with
Lewis, who told him to bring his wife to CRT
Aviation at approximately 6:00 p.m. that evening
(Westmoreland was conveniently on vacation at the
time). That night, Abeln, accompanied by his wife
and 11-year-old son, Travis, traveled to the CRT
Aviation hangar in Sauget, Illinois, ostensibly
to work on Abeln’s private airplane. Shortly
after the family’s arrival at the airport,
Abeln’s wife was murdered during a staged robbery
attempt in the parking lot.

      On January 5, 1998, Abeln and his oldest son,
Ryan, traveled to Illinois State Police
headquarters to discuss establishing a reward for
information relating to the murder of Abeln’s
wife. At the headquarters, police confronted
Abeln with inconsistencies in his account of the
murder, as well as with the questionable
circumstances surrounding the murder; for
example, the police were suspicious that a robber
would lie in wait for victims at a remote
airport. Abeln caved in under the police
questioning and confessed to the murder as well
as the drug conspiracy, implicating Westmoreland
in both. Abeln described many details of his
wife’s murder in a written confession that he
provided the police at the time./1 While Abeln
and Ryan were at police headquarters,
Westmoreland repeatedly paged Ryan to inquire
into the status of Abeln’s interview with the
police. Finally, while still at headquarters,
Abeln made several phone calls to Westmoreland
that he allowed the police to record.

      Following his confession to the police, Abeln
also made incriminating statements to Ryan. These
statements were consistent with what Abeln had
related to the police, but provided less detail
(for example, Abeln did not discuss drug
quantities with Ryan). Abeln also made
incriminating statements in prison to Paul
Barnett, his cellmate. These statements were also
consistent with what Abeln had told the police
and Ryan, but again omitted any reference to drug
quantities.

      The police investigated Abeln’s claims, and on
January 6, 1998, a search pursuant to a warrant
was conducted at Jeffco Trucking. Approximately
550.9 grams of cocaine were found in a GMC
Suburban sport utility vehicle, which, according
to several Jeffco employees, was driven only by
Westmoreland. Also, on February 10, 1998,
Illinois State Police interviewed Tony Jestis,
the pilot for Abeln who had flown to Texas for
Abeln several times. Jestis told the police that
he had flown for Abeln, but denied knowledge of
the purpose of his flights. However, Jestis
admitted to occasionally bringing Westmoreland as
a passenger on his flights and, when Westmoreland
was not flying with him, to picking up packages
while in Texas that Westmoreland would then pick
up from Jestis in St. Louis.

B.   District Court Proceedings

      Westmoreland and Abeln were indicted and set
for joint trial. The trial was severed after the
government received permission to seek the death
penalty against Abeln. As a result, Westmoreland
was tried alone, with conspiracy to distribute a
controlled substance in violation of 21 U.S.C.
sec.sec. 841(a)(1), 841(b)(1)(A) and 846, as the
only count against him. Following a trial--during
which many of Abeln’s and Jestis’ hearsay
statements were admitted into evidence--
Westmoreland was convicted by a jury on August
20, 1998.

      At sentencing, the trial court determined that
Westmoreland was responsible for approximately
8.5 kilograms of cocaine. While this quantity
subjected Westmoreland to a statutory maximum
sentence of life imprisonment under 21 U.S.C.
sec. 841(b)(1)(A), the Sentencing Guidelines
prescribed a sentence of only 121-151 months.
Nonetheless, after determining that Westmoreland
had participated in the murder of Abeln’s wife in
furtherance of the drug conspiracy, the court
imposed a life sentence on Westmoreland under the
Sentencing Guidelines murder cross-reference
found at U.S.S.G. sec. 2D1.1(d).
      Following his conviction and sentencing,
Westmoreland appealed to this court. In that
appeal, Westmoreland contested the admission of
Abeln’s hearsay statements at his trial.
Westmoreland also disputed the amount of cocaine
that was found to constitute his relevant conduct
and the application to him of the Sentencing
Guidelines murder cross-reference. Westmoreland
lastly alleged that his sentence violated Fifth
Amendment due process guarantees, as well as the
Eighth Amendment prohibition against cruel and
unusual punishment.

      While Westmoreland’s first appeal was pending,
he was informed by the United States Attorney
that Abeln had stated during his plea discussions
that his wife did not know of the drug
conspiracy. Instead, Abeln claimed that he had
lied to Westmoreland about his wife’s knowledge
to induce Westmoreland to participate in her
murder. Upon learning this news from the United
States Attorney, Westmoreland requested leave
from this court to file a petition for a new
trial in the district court. On July 20, 1999,
this court remanded the case to the district
court so that the court could entertain
Westmoreland’s motion for a new trial based upon
the new evidence.

      Westmoreland filed a motion for a new trial, as
well as a supplemental motion for a new trial
relying upon the Supreme Court’s June 10, 1999
decision in Lilly v. Virginia, 527 U.S. 116
(1999), for the purpose of presenting a
Confrontation Clause argument. The district court
denied both of Westmoreland’s motions, and he
appeals this denial and pursues his original
appeal from the jury verdict and sentence.

II.    DISCUSSION

      In this combined appeal, Westmoreland
challenges: (1) the admissibility of Abeln’s and
Jestis’ various hearsay statements; (2) the
amount of cocaine found to constitute his
relevant conduct for sentencing purposes; (3) the
use of the Sentencing Guidelines murder cross-
reference, U.S.S.G. sec. 2D1.1(d), in the
calculation of his sentence; and (4) the denial
of his motions for a new trial.

A.    Hearsay Statements

      At trial, hearsay statements by both Abeln and
Jestis were admitted under Federal Rule of
Evidence 804(b)(3) as statements against
interest. Westmoreland challenges the admission
of these statements under both the text of Rule
804(b)(3) and the Confrontation Clause, U.S. Const.
amend. VI./2

      Determining whether hearsay testimony admitted
under Rule 804(b)(3) violates the Confrontation
Clause requires a threshold determination of
whether the evidence was properly admitted under
Rule 804(b)(3) in the first instance. See United
States v. Castelan, 219 F.3d 690, 694 (7th Cir.
2000). "For the 804(b)(3) exception to apply, the
proponent of an inculpatory hearsay statement
must show that (1) the declarant is unavailable
to testify at trial; (2) the statement was
against the declarant’s penal interest; and (3)
corroborating circumstances bolster the
statement’s trustworthiness." United States v.
Shukri, 207 F.3d 412, 416 (7th Cir. 2000).
Further, under Williamson v. United States, the
district court must consider whether each
statement contained in a confession, and not just
the confession taken as a whole, was genuinely
self-inculpatory. 512 U.S. 594, 600-01 (1994).
Thus, each statement in a narrative confession
must be examined "to determine whether it tended
to subject the declarant to criminal liability."
United States v. Nagib, 56 F.3d 798, 804 (7th
Cir. 1995). The admission of hearsay statements
under Rule 804(b)(3) is reviewed for abuse of
discretion. See Shukri, 207 F.3d at 416.

  Even if a statement is properly admissible
under the text of Rule 804(b)(3), the statement
may not be admitted into evidence if it violates
the defendant’s Confrontation Clause rights. The
Confrontation Clause analysis requires that
hearsay statements admitted under Rule 804(b)(3)
be accompanied by "particularized guarantees of
trustworthiness." Ohio v. Roberts, 448 U.S. 56,
66 (1980). As this court interprets the reasoning
of the plurality in Lilly, these guarantees "must
be inherent in the circumstances of the testimony
itself; the fact that other evidence corroborates
the testimony in question does not suffice."
Castelan, 219 F.3d at 695. There is a presumption
of unreliability that attaches to a codefendant’s
confession, see Lee v. Illinois, 476 U.S. 530,
543 (1986), and the plurality in Lilly noted that
"[i]t is highly unlikely that the presumptive
unreliability that attaches to accomplices’
confessions that shift or spread blame can be
effectively rebutted when . . . the government is
involved in the statements’ production, and when
the statements describe past events and have not
been subjected to adversarial testing." 527 U.S.
at 137. The full scope of Lilly is yet to be
defined, but as this court stated in Castelan,
"at least one treatise has explained that in
Lilly ’all nine justices of the Supreme Court
indicated, more or less explicitly, that the
admission of custodial statements to law
enforcement personnel against penal interest . .
. whether or not constituting a confession, that
incriminate another person violates the
confrontation clause when admitted against such
other person in a criminal case.’" Castelan, 219
F.3d at 695 (citing 31 Charles Alan Wright,
Arthur R. Miller & Michael H. Graham, Federal
Practice and Procedure sec. 6742 (2d ed. 2000)).
The admission of hearsay statements under the
Confrontation Clause is reviewed de novo. See
Castelan, 219 F.3d at 694.
1.

       We first discuss the hearsay statements made by
Abeln to the police, Barnett and Ryan. While
neither party takes issue with the district
court’s determination that Abeln was unavailable
to testify at trial because he was facing his own
capital trial--the first prong of the Rule
804(b)(3) analysis--the parties differ in their
assessment of whether Abeln’s statements were
truly self-inculpatory, as well as whether they
contained sufficient guarantees of
trustworthiness. Westmoreland takes particular
issue with the following statements by Abeln,
arguing that they were not truly self-
inculpatory: that Westmoreland was the party with
the drug connection (told to both the police and
Barnett); that Westmoreland distributed the drugs
(told to the police, Ryan and Barnett); that the
getaway car used during the murder of Abeln’s
wife was a beat-up, blue Dodge pick-up truck
(told to the police); that Westmoreland owed
Abeln $7,000 (told to the police); that
Westmoreland told Abeln he could take care of
Abeln’s wife (told to the police, Ryan and
Barnett); that Deandre Lewis was the shooter,
worked for Westmoreland and was offered five
ounces of cocaine by Westmoreland for the hit
(told to Barnett, and partially to the police and
Ryan).

      All of Abeln’s statements, with the exception
of the reference to the pick-up truck,/3 were
properly admissible under the text of Rule
804(b)(3). "[S]tatements that demonstrate a
declarant’s inside knowledge of a crime are also
against the declarant’s penal interest." United
States v. York, 933 F.2d 1343, 1360 (7th Cir.
1991), overruled on other grounds by Wilson v.
Williams, 182 F.3d 562 (7th Cir. 1999); see also
United States v. Barrett, 539 F.2d 244, 252 (1st
Cir. 1976). In addition, a statement that
implicates the declarant in a larger conspiracy
tends to subject the declarant to criminal
liability and thus is a statement against
interest. See York, 933 F.2d at 1360. This is so
because a member of a conspiracy is liable for
any co-conspirator’s act committed in furtherance
of the conspiracy even if he did not commit the
act himself. Thus, because the following
statements illustrate Abeln’s knowledge of the
conspiracy and the acts committed in furtherance
of the conspiracy, they qualify as statements
against interest: Westmoreland had the drug
connection; Westmoreland sold the drugs;
Westmoreland owed Abeln $7,000; Westmoreland told
Abeln he could "take care of" Abeln’s wife;
Deandre Lewis, one of Westmoreland’s employees,
shot Abeln’s wife and was offered five ounces of
cocaine by Westmoreland for the murder.

      More compellingly, none of the above statements
can be said to be an effort by Abeln to shift
blame. By admitting to a role in both the drug
conspiracy and his wife’s murder, Abeln surely
knew that he was facing a prison term so lengthy
(if not a capital sentence) that any effort to
shift blame would not help him. Instead, Abeln’s
statements merely fill in gaps in his story and
reveal Abeln’s detailed knowledge of the drug
conspiracy, in which he played a major role.
Consequently, the district court did not abuse
its discretion in admitting Abeln’s hearsay
statements under Rule 804(b)(3).
      As noted, however, it is not enough that
Abeln’s statements were properly admissible under
Rule 804(b)(3); they must also survive analysis
under the Confrontation Clause. Under the
reasoning of the plurality in Lilly, the
Confrontation Clause requires that hearsay
statements which do not fall within a firmly
rooted hearsay exception (and statements
implicating a co-defendant do not fall within
such an exception) must include "particularized
guarantees of trustworthiness." See Lilly, 527
U.S. at 124-25 (citing Ohio v. Roberts, 448 U.S.
56, 66 (1986)).

      Not all of Abeln’s hearsay statements survive a
Confrontation Clause analysis. As noted, this
court’s decision in Castelan indicates that
"particularized guarantees of trustworthiness" do
not exist with respect to statements made while
in police custody. Accordingly, Abeln’s
statements to the police fail to survive a
Confrontation Clause analysis because Abeln was
in custody when he made them. However, Abeln’s
statements to his son, Ryan, and to his cellmate,
Barnett, meet Lilly’s requirement that
"particularized guarantees of trustworthiness" be
present. Lilly does not change the fact that
statements to close family members have
"particularized guarantees of trustworthiness."
See United States v. Tocco, 200 F.3d 401, 416
(6th Cir. 2000) (statement made to son in
confidence survives Lilly analysis). And, as
noted by this court, jailhouse confessions to
cellmates are also trustworthy and admissible
under Rule 804(b)(3). See United States v.
Hamilton, 19 F.3d 350, 357 (7th Cir. 1994).
Consequently, while the admission of Abeln’s
custodial statements violated Westmoreland’s
Confrontation Clause rights, the admission of
Abeln’s other hearsay statements did not.
Nonetheless, because we conclude below that the
improper admission of Abeln’s statements was
harmless, Westmoreland’s conviction stands.

2.

      Westmoreland also challenges the admission of
Jestis’ statements. We begin by examining whether
Jestis’ statements are admissible under the text
of Rule 804(b)(3), which requires that the
declarant be unavailable to testify and that the
declarant’s statements be against the declarant’s
interest. Neither party disputes the district
court’s finding that Jestis was unavailable to
testify because he asserted his rights under the
Fifth Amendment. However, Westmoreland contends
that none of Jestis’ statements were truly
against Jestis’ penal interest because Jestis
asserted that he was unaware of the unlawful
purpose of his flights, was told that he was
doing nothing illegal and was flying merely
because he needed the money. Westmoreland further
contends that Jestis did not make statements
against his interest by admitting acquaintance
with Westmoreland and Abeln or by admitting to
receiving a package from Abeln’s son, Ryan.

      While Westmoreland is correct to note that
Jestis disclaimed all knowledge of Westmoreland’s
drug distribution business, the lower court
nonetheless properly admitted Jestis’ statements
because these statements were against Jestis’
self-interest under a conscious avoidance theory
of prosecution. A conscious avoidance theory of
prosecution applies "where there is evidence that
the defendant is associated with a group, but
where there is also evidence that the defendant
consciously was avoiding knowledge of the illegal
nature of the group’s activity." United States v.
Diaz, 864 F.2d 544, 550 (7th Cir. 1988); see also
United States v. Broeske, 178 F.3d 887, 890 (7th
Cir. 1999). Jestis’ statements subjected him to
possible prosecution under a conscious avoidance
theory since Jestis admitted association with
Westmoreland and Abeln and admitted flying for
them, but disclaimed any knowledge of the
purposes of the flight. Jestis’ statements could
thus implicate him in the conspiracy, and the
district court did not abuse its discretion in
admitting his statements under Rule 804(b)(3).

      Nonetheless, because Jestis’ statements were
made while under interrogation by the police,
their admission--like the admission of Abeln’s
police custody statements--violated the
Confrontation Clause. The inadmissibility of
Jestis’ statements follows from the same Lilly
analysis applied to Abeln’s hearsay statements.
However, there is an additional reason to exclude
Jestis’ statements from evidence: statements made
in conscious avoidance, by definition, involve a
declarant who admits to association with a
criminal enterprise but denies knowing the
business of the enterprise. See Broeske, 178 F.3d
at 890. Such self-exculpatory statements are
essentially an attempt to exonerate the declarant
at the potential expense of the declarant’s
accomplices, particularly when they were made in
police custody. Jestis’ statements are thus a
classic example of the kind of blame-shifting
statement with which the Confrontation Clause is
particularly concerned--he admitted nothing that
might harm him, but plenty that might harm
Westmoreland and Abeln.

3.

      Even if hearsay statements are improperly
admitted into evidence at trial, a conviction
will not be set aside if erroneous rulings under
both Rule 804(b)(3) and the Confrontation Clause
are harmless. See Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986). Errors are deemed harmless
if we can determine beyond a reasonable doubt
that the error did not contribute to the verdict.
See Neder v. United States, 527 U.S. 1, 15-16
(1999). Whether an error is harmless beyond a
reasonable doubt depends upon factors such as "1)
the importance of the witness’s testimony in the
prosecution’s case; 2) whether the testimony was
cumulative; 3) whether other evidence
corroborated or contradicted the witness’s
material testimony; and 4) the overall strength
of the prosecution’s case." United States v.
Ochoa, 2000 WL 1511696, at *7 (7th Cir. Oct. 12,
2000) (citing Van Arsdall, 475 U.S. at 684).
Here, the bulk of the challenged hearsay
statements do not even relate to the drug
conspiracy with which Westmoreland was charged.
Instead, they relate to Deborah Abeln’s murder.
While these statements might be challenged as
irrelevant to the drug conspiracy or unduly
prejudicial (and thus inadmissible under Federal
Rules of Evidence 402 and 403), Westmoreland has
not challenged them on these grounds.
Accordingly, it is difficult to see how the
hearsay statements relating to Deborah Abeln’s
murder might have changed the jury’s verdict
since the jury was charged only with determining
Westmoreland’s role in the drug conspiracy, and
not his role in the murder.

      With regard to the hearsay statements relating
to Westmoreland’s role in the drug distribution
conspiracy, there was abundant evidence of
Westmoreland’s guilt with respect to that charge.
Westmoreland’s phone records revealed numerous
calls to Texas; one of the recorded phone
conversations between Abeln and Westmoreland
reveals that Westmoreland was worried about "the
drug end of it"; and cocaine was found in
Westmoreland’s car. In addition, the admitted
hearsay testimony was, to some extent, cumulative
since the statements Abeln made to Barnett and
Ryan were properly admissible and they largely
duplicated the statements Abeln made to the
police and Jestis. Consequently, any error in
admitting hearsay statements against Westmoreland
was harmless, and Westmoreland’s conviction for
conspiracy to distribute a controlled substance--
the only count he was charged with--will not be
set aside.

B.   Sentencing

      Westmoreland contests two aspects of his
sentence: the drug quantity attributed to him and
the murder cross-reference imposed on him.

1.

       Westmoreland advances two arguments--one factual
and one constitutional--with respect to his
contention that the district court should not
have attributed 8.5 kilograms of cocaine to him
at sentencing. Because we try to avoid
constitutional questions if we can, we first
address Westmoreland’s factual argument. See
United States v. Bloom, 149 F.3d 649, 653 (7th
Cir. 1998). Under the Sentencing Guidelines,
Westmoreland’s sentencing range would have been
63-78 months had he been sentenced only for the
550.9 grams of cocaine found in his automobile.
Westmoreland argues that the district court
improperly relied on Abeln’s hearsay testimony to
attribute 8.5 kilograms of cocaine to him, thus
bringing his sentencing range (ignoring the
cross-reference for murder) to 121-151 months.
The determination of quantity for sentencing
purposes is reviewed for clear error. See United
States v. Hatchett, 31 F.3d 1411, 1418 (7th Cir.
1994).

      Westmoreland contends that the hearsay testimony
used to determine drug quantity was so
untrustworthy as to render the lower court’s
reliance on that testimony clear error. However,
even though Abeln’s statements are not admissible
evidence under Lilly, a district court is not
bound by the rules of evidence in determining
drug quantity for sentencing purposes. See United
States v. Berkey, 161 F.3d 1099, 1102 (7th Cir.
1998). In fact, "a sentencing judge can consider
a wide range of information in reaching
sentencing determinations provided it is reliable
or, as we have said, provided it includes
’sufficient indicia of reliability to support its
probable accuracy.’" United States v. Robinson,
164 F.3d 1068, 1070 (7th Cir. 1999) (quoting
United States v. Taylor, 72 F.3d 533, 543 (7th
Cir. 1995)).

      Here, the court relied exclusively on Abeln’s
hearsay statements to the police to add eight
kilograms to the quantity of cocaine attributed
to Westmoreland. We have determined above that
Abeln’s description of drug quantity was
inadmissible to the jury under Lilly. We are not
aware of any cases that examine whether a
statement that is inadmissible under Lilly
because it does not possess "particularized
guarantees of trustworthiness" might nonetheless
possess "sufficient indicia of reliability" for
sentencing purposes. Because a standard that
calls for "sufficient indicia of reliability"
appears, on its face, somewhat less stringent
than a standard requiring "particularized
guarantees of trustworthiness," it is possible
for a sentencing court to consider hearsay
statements that may not be admitted into evidence
under Lilly. As such, the court properly
considered Abeln’s hearsay statements for
sentencing purposes. Abeln’s statement that he
transported eight kilograms of cocaine was
clearly against his self-interest--not only did
it subject Abeln to criminal prosecution, but it
also subjected him to the possibility of a life
sentence under 21 U.S.C. sec. 841(b)(1)(a).
Abeln’s statement to the police was also
consistent with his other statements. For
example, Abeln told Barnett that he had earned
$168,000--a substantial amount of money that is
consistent with the scale of Abeln’s and
Westmoreland’s operations--on his last trip to
Texas. Further, the testimony of Abeln and
Jestis, coupled with the numerous phone calls
between Westmoreland and a residence in Texas,
establish Westmoreland’s knowledge of--and
participation in--a conspiracy that involved
numerous flights to Texas for the purpose of
importing controlled substances into the St.
Louis area. Surely, members of the conspiracy did
not fly to Texas merely to pick up a few grams of
cocaine. Accordingly, the court did not err in
attributing 8.5 kilograms of cocaine to
Westmoreland for sentencing purposes./4

2.

      We must next decide whether the district
court’s drug quantity determination survives
constitutional scrutiny. At the time of trial, it
was well-settled in this circuit, as well as
other circuits, that drug quantity was merely a
sentencing factor under sec. 841, and not an
element of the crime of possession with intent to
distribute. See, e.g., United States v. Jackson,
207 F.3d 910, 920 (7th Cir. 2000) (and cases
cited therein); United States v. Thomas, 204 F.3d
381, 384 (2d Cir. 2000); United States v.
Williams, 194 F.3d 100, 107 (D.C. Cir. 1999);
United States v. Martinez, 151 F.3d 384, 395 (5th
Cir. 1998); United States v. Silvers, 84 F.3d
1317, 1320 (10th Cir. 1996); United States v.
Lindia, 82 F.3d 1154, 1161 n.6 (1st Cir. 1996);
United States v. Abanatha, 999 F.2d 1246, 1251
(8th Cir. 1993); United States v. Chapple, 985
F.2d 729, 731 (3d Cir. 1993); United States v.
Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992);
United States v. Revel, 971 F.2d 656, 659 (11th
Cir. 1992); United States v. Sotelo-Rivera, 931
F.2d 1317, 1319 (9th Cir. 1991); United States v.
Moreno, 899 F.2d 465, 474 (6th Cir. 1990).

      Section 841’s distinction between sentencing
factors and elements was called into doubt by two
cases that relied heavily upon statutory
interpretation: Jones v. United States, 526 U.S.
227 (1999) ("serious bodily injury" and "death"
under federal carjacking statute, 18 U.S.C. sec.
2119, were elements of offense), and United
States v. Castillo, 120 S.Ct. 2090 (2000) (term
"machine gun" in statute states element of
offense defined by 18 U.S.C. sec. 924(c)(1)). In
both of these decisions, the Supreme Court
interpreted ambiguous statutes and found that
provisions which enhanced a defendant’s sentence
were elements of the crime defined by the
statutes, not mere sentencing factors. By relying
on statutory interpretation in Jones and
Castillo, the Court was able to avoid the
constitutional problem that would result if
Congress removed elements of a crime from the
purview of the jury by treating them as
sentencing factors.

      While Castillo’s impact on sec. 841 did not
come before us, we decided that Jones did not
change the long-held view that drug quantity is
a sentencing factor based upon the clear
demarcation between the substantive offense and
the penalty provisions of sec. 841. See Jackson
v. United States, 207 F.3d 910, 920 (7th Cir.
2000), cert. granted in part, and judgment
vacated by 121 S.Ct. 376. Section 841(a),
entitled "Unlawful acts," defines the offense of
possessing a controlled substance with the intent
to distribute it. Section 841(b), entitled
"Penalties," establishes several statutory
maximums depending on the drug type and quantity
involved in the crime. For example, the drug
types and quantities enumerated in sec.
841(b)(1)(D) subject a defendant to a maximum
possible sentence of five years imprisonment,
while the drug types and quantities enumerated in
sec. 841(b)(1)(A) subject a defendant to a
maximum possible sentence of life imprisonment.
Because of the separation between the
proscription of the substantive offense and the
penalty provisions in sec. 841, we held that drug
quantity is merely a sentencing factor, and not
an element of the crime proscribed by sec. 841.
After Apprendi v. New Jersey, 120 S. Ct. 2348
(2000), however, we were no longer able to
construe the structure of sec. 841 in a manner
that avoided the constitutional problem arising
when a statute’s structure removes certain
aspects of a crime from the purview of the jury.

      The defendant in Apprendi was convicted in
state court under a New Jersey statute that
prohibited the possession of a firearm for an
unlawful purpose. At sentencing, the trial judge
applied New Jersey’s hate crime law, which
allowed for an extended term of imprisonment
(beyond the statutory maximum for the firearm
possession alone) if the trial judge determined,
by a preponderance of the evidence, that the
defendant acted "with a purpose to intimidate an
individual or group of individuals because of
race, color, gender, handicap, religion, sexual
orientation or ethnicity." N.J. Stat. Ann. sec.
2C:44-3(e). Finding that application of the hate
crime law violated the defendant’s due process
rights under the Fourteenth Amendment, the
Supreme Court held that "[o]ther than the fact of
a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Apprendi,
120 S.Ct. at 2362-63. Apprendi thus requires that
facts which increase a defendant’s sentence
beyond the statutory maximum must both be charged
in the indictment and submitted to the jury for
a determination under the reasonable doubt
standard.

      In light of Apprendi, we could no longer look
to the clear demarcation between the elements of
the crime defined by sec. 841 and the penalty
provisions of that section as a means of avoiding
the constitutional issues raised by the placement
of drug quantity determination in the hands of
the sentencing judge. It is now clear that, if
drug quantity is determined by the sentencing
judge rather than by the jury, a defendant’s
rights are violated when the sentence dictated by
the drug quantity is greater than the lowest,
unenhanced statutory maximum prescribed by sec.
841(b). See United States v. Nance, No. 00-1836,
2000 WL 1880629 (7th Cir. Dec. 29, 2000). Thus,
when drug quantity is not charged in the
indictment or submitted to the jury, the
statutory maximum under sec. 841(b) must be
determined without reference to drug quantity.
For example, when a defendant is charged with
possession with intent to distribute cocaine and
quantity is not charged in the indictment or
submitted to the jury, the statutory maximum
sentence is 20 years imprisonment. See sec.
841(b)(1)(C).

      Many of our sister circuits have reexamined
sec. 841 in light of Apprendi and have concluded,
as we have, that sections 841(b)(1)(A) and
841(b)(1)(B), the enhanced statutory maximum
penalty provisions of sec. 841, "may not be
utilized for sentencing without a finding of drug
quantity by the jury." United States v. Rogers,
228 F.3d 1318, 1327 (11th Cir. 2000); see also
United States v. Angle, 230 F.3d 113, 123 (4th
Cir. 2000); United States v. Doggett, 230 F.3d
160, 164-65 (5th Cir. 2000); United States v.
Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000);
United States v. Aguayo-Delgado, 220 F.3d 926,
933 (8th Cir. 2000). In addition, the Supreme
Court has ordered several other circuits to
reconsider their decisions not following this
rule in light of Apprendi. See, e.g., Jones v.
United States, 120 S.Ct. 2739 (2000) (mem.)
(reconsidered in light of Apprendi by 235 F.3d
1231 (10th Cir. 2000)); Blue v. United States,
2000 WL 1451376 (U.S. 2000) (mem.); Gibson v.
United States, 2000 WL 1451396 (U.S. 2000)
(mem.); Burton v. United States, 2000 WL 798515
(U.S. 2000) (mem.); Wims v. United States, 2000
WL 366962 (U.S. 2000) (mem.). We have similarly
been ordered to reconsider several of our
decisions in light of Apprendi. See Jackson v.
United States, 121 S.Ct. 376 (2000) (mem.)
(reconsidered in light of Apprendi by No. 98-
2696, 2001 WL 21355 (7th Cir. Jan. 10, 2001));
Hughes v. United States, 121 S.Ct. 423 (2000)
(mem.); Whitt v. United States, 121 S.Ct. 423
(2000) (mem.). While we recognize that the
Supreme Court’s summary remand is not strong or
clear precedent, the remand in these cases
"indicates the possible or even likely view of
the Court that Apprendi does change the
traditional interpretation that drug quantity is
always a sentencing factor . . . ." United States
v. Angle, 230 F.3d 113, 123 (4th Cir. 2000).

      We followed the above line of precedent in
United States v. Nance, No. 00-1836, 2000 WL
1880629 (7th Cir. Dec. 29, 2000), thus overruling
our cases indicating that drug quantity is a
sentencing factor to the extent that those cases
are undermined by the rule of Apprendi, requiring
that any fact which increases a sentence beyond
the prescribed statutory maximum must be charged
in the indictment and submitted to the jury./5
See, e.g., United States v. Hardin, 209 F.3d 652,
657 (7th Cir. 2000); United States v. Richardson,
130 F.3d 765, 780 (7th Cir. 1997); United States
v. Garcia, 66 F.3d 851, 859-60 (7th Cir. 1995);
United States v. Trujillo, 959 F.2d 1377, 1381
(7th Cir. 1992); United States v. Levy, 955 F.2d
1098, 1106 (7th Cir. 1992); United States v.
McNeese, 901 F.2d 585, 605 (7th Cir. 1990).


3.

      We next decide how Apprendi affects
Westmoreland’s sentence. Because Westmoreland is
challenging the constitutionality of the district
court’s drug quantity determination for the first
time on appeal, we review the challenged aspects
of the lower court proceedings only for plain
error. See Fed. R. Crim. P. 52(b); see also
United States v. Olano, 507 U.S. 725, 730 (1993);
United States v. Ross, 77 F.3d 1525, 1538 (7th
Cir. 1996). Under the plain error standard, we
will not reverse unless the defendant
demonstrates that (1) there was error; (2) the
error was plain; and (3) the error affected the
defendant’s substantial rights. See Fed. R. Crim.
P. 52(b); Olano, 507 U.S. at 732-35. If the
defendant meets these three requirements, we may
correct the error if, "in our discretion, we find
the error seriously affects the fairness,
integrity, or public reputation of judicial
proceedings." Ross, 77 F.3d at 1538 (discussing
Olano, 507 U.S. at 736-37).

      Having set forth the legal context and standard
of review that guide us, we turn to an analysis
of Westmoreland’s Apprendi claim. As noted, the
plain error analysis requires us first to
determine whether any error was committed below.
As in similar cases, the government concedes that
Apprendi applies to sec. 841, and that an error
has been committed. See, e.g., United States v.
Swatzie, 228 F.3d 1278, 1282 (11th Cir. 2000).
However, "[w]hile . . . government concessions
are often useful to a court, they do not, at
least as to questions of law that are likely to
affect a number of cases in the circuit beyond
the one in which the concessions are made,
relieve this Court of the duty to make its own
resolution of such issues." Strauss v. United
States, 516 F.2d 980, 982 (7th Cir. 1975).
Apprendi’s application to sec. 841 is already
proving to be a frequent basis for appeal in this
circuit and we therefore continue by describing
why the government was correct to concede the
first two prongs of the plain error analysis.

   In deciding whether error exists with regard to
the drug quantity finding in this case, we must
bear in mind that Apprendi requires drug
quantity--when it subjects a defendant to an
enhanced sentence--to be both charged in the
indictment and submitted to the jury. Here, it is
clear that drug quantity was sufficiently charged
in the indictment. "The test for determining the
sufficiency of the indictment is whether the
indictment sets forth the elements of the offense
charged and sufficiently apprises the defendant
of the charges to enable him to prepare for
trial." United States v. Garcia-Geronimo, 663
F.2d 738, 743 (7th Cir. 1981). However, while an
indictment must allege all of the elements
necessary to prove a violation of the statute,
"[i]t is not necessary to spell out each element,
[so long as] each element [is] present in
context." United States v. Smith, 223 F.3d 554,
571 (7th Cir. 2000); see also United States v.
Martinez, 981 F.2d 867, 872 (6th Cir. 1992)
(indictment is constitutionally sufficient if it
alleges the appropriate section of the United
States Code, even if it does not allege the
express element required). Here, Westmoreland was
charged with a violation of sec. 841(b)(1)(A),
which provides for a maximum sentence of life
imprisonment, and was thus on notice that he
might be sentenced to life imprisonment. Charging
Westmoreland with the enhanced penalty provision
thus allowed Westmoreland to prepare his defense
sufficiently with respect to the quantity-driven
enhanced penalty provision of sec. 841. The
language of the indictment--alleging over one
year of drug distribution activity in a large
area--while perhaps not strong enough on its own,
lends further context to the drug quantity
charged in the indictment. Certainly,
Westmoreland could not understand this allegation
of a year of distribution activity in a large
area to involve only minute amounts of cocaine.
Accordingly, there was no error under Apprendi
with regard to the indictment.

      However, as noted, it is not sufficient that
the relevant factor be charged in the indictment;
the jury must also be instructed on that factor.
Here, drug quantity was not even mentioned in the
jury instructions even though the drug quantity
ultimately attributed to Westmoreland by the
sentencing judge subjected Westmoreland to a
sentence that exceeded the 20-year statutory
maximum prescribed by sec. 841(b)(1)(C). Thus,
Westmoreland’s rights were violated by the
district court’s failure to submit drug quantity
to the jury. Accordingly, the first two elements
of the plain error analysis--requiring an error
that is plain--are satisfied.

      Next, we must determine whether the error
affected Westmoreland’s substantial rights. An
error will affect substantial rights if the error
"affected the outcome of the district court
proceedings." United States v. Olano, 507 U.S.
725, 734 (1993); see also United States v.
Franklin, 197 F.3d 266, 271 (7th Cir. 1999).
While the Court in Olano acknowledged that
"[t]here may be a special category of forfeited
errors that can be corrected regardless of their
effect on the outcome," 507 U.S. at 735, this
case does not involve such an error. See United
States v. Kerley, 838 F.2d 932, 938-39 (7th Cir.
1988) (failure to instruct jury on element of
crime is not per se reversible error). While
"failure to instruct clearly on the elements of
the offense is not always plain error," United
States v. Perez, 43 F.3d 1131, 1139 (7th Cir.
1994) (citing United States v. Kerley, 838 F.2d
932, 938 (7th Cir. 1988)), "the gravity of such
an error makes reversal the usual outcome in such
circumstances." Perez, 43 F.3d at 1149. However,
Westmoreland bears the burden of showing that the
error was prejudicial. See Olano, 507 U.S. at
734.

      Westmoreland has shown that the outcome of the
district court proceedings would have been
substantially different had the question of
quantity gone to the jury. As noted, two pieces
of evidence supported the determination of
Westmoreland’s relevant conduct with regard to
drug quantity: the approximately 550.9 grams of
cocaine found in his automobile and the eight
kilograms of cocaine that Abeln, in his
confession to the police, claimed to have
imported. But Abeln’s confession to the police
should not have been in evidence and should thus
not have been before the jury. Consequently, the
only evidence of drug quantity presented to the
jury would have been the approximately 550.9
grams of cocaine found in Westmoreland’s car--a
quantity allowing for a sentence of five to 40
years imprisonment under sec. 841(b)(1)(B), but
not a life sentence. There was some additional
admissible evidence relating to drug quantity
(for example, Abeln’s statement to Barnett that
he had netted $168,000 on his last drug
transaction), but the jury received no
instruction on this evidence and there was thus
no way for the jury to derive a drug quantity
from this dollar figure. Accordingly, because the
jury would have been justified in only
attributing a quantity of approximately 550.9
grams to Westmoreland, Westmoreland’s rights were
substantially affected.

      The gravity of this error is further
illustrated by the mischief resulting from the
application of the Sentencing Guidelines murder
cross-reference, U.S.S.G. sec. 2D1.1(d). Because
the district court found that Westmoreland was
responsible for 8.5 kilograms of cocaine, he was
subject to, and ultimately sentenced to, life
imprisonment. It is true that his sentence for
the 8.5 kilograms of cocaine alone (not including
the murder cross-reference) would have resulted
in a sentence of only 121-151 months
imprisonment, well within the 20-year statutory
maximum imposed for cocaine offenses without a
quantity enhancement. But a plain error analysis
of Apprendi’s application to Westmoreland’s
sentence does not call for such a parsing of the
sentence. What matters is that Westmoreland was
subject to a 20-year maximum sentence (or, as
noted below, possibly a 40-year maximum sentence)
and his actual sentence exceeded this.

      We lastly conclude that, under the fourth prong
of the plain error analysis, the error in
Westmoreland’s case "seriously affect[s] the
fairness, integrity, or public reputation of
judicial proceedings." Olano, 507 U.S. at 732. We
will find that an error so affects judicial
proceedings when an issue is closely contested
and supported by conflicting evidence. See United
States v. Mims, 92 F.3d 461, 466 (7th Cir. 1996)
(failure to ensure a jury finding on an essential
element "undermined the essential fairness and
integrity of the trial"). Here, the issue of drug
quantity was closely contested and supported only
by limited evidence. Accordingly, the court’s
failure to charge the jury with a quantity
determination resulted in a substantially longer
sentence than would likely have resulted if the
jury had been charged with determining quantity.
Had the jury been so charged--and had the jury
been denied the benefit of Abeln’s hearsay
statements to the police--it would not have known
that Westmoreland was alleged to have been
involved with the importation of eight kilograms
of cocaine. As such, the jury could not have
credited Westmoreland with 8.5 kilograms of
cocaine, as did the district court. Instead, the
jury could reasonably have found that
Westmoreland was at most responsible for 550.9
grams of cocaine, the quantity found in his
automobile. Such a finding would have subjected
Westmoreland to a maximum sentence of 40 years of
imprisonment under sec. 841(b)(1)(B).
Accordingly, the failure to instruct the jury is
plain and reversible error.

4.

       The application of the Sentencing Guidelines
murder cross-reference, U.S.S.G. sec. 2D1.1(d),
is reviewed for clear error. See United States v.
Meyer, 2000 WL 1770672, at *6 (7th Cir. Dec. 4,
2000). Constitutional questions relating to the
cross-reference are reviewed de novo. See United
States v. Meyer, 157 F.3d 1067, 1081 (7th Cir.
1998).

      Application of the cross-reference to
Westmoreland was not clear error. As with all
sentencing issues, "[a] sentencing judge is not
bound to the Federal Rules of Evidence when
considering information to determine the
defendant’s sentence." United States v. Berkey,
161 F.3d 1099, 1102 (7th Cir. 1998). The judge
"may rely on hearsay and statements from co-
conspirators so long as he finds the statements
reliable." Id. However, the facts upon which a
sentence is based must bear a "sufficient indicia
of reliability to support their probable
accuracy." United States v. Burke, 148 F.3d 832,
835 (7th Cir. 1998). As noted, this is a less
stringent standard than Lilly’s requirement that
"particularized guarantees of trustworthiness"
exist before hearsay statements against interest
can be admitted into evidence. Therefore, it is
possible that hearsay statements not properly
before the jury may nonetheless be considered at
sentencing.

      Westmoreland argues that the hearsay and
circumstantial evidence considered by the lower
court in applying the Guidelines cross-reference
does not prove Westmoreland’s alleged role in the
murder of Abeln’s wife by a preponderance of the
evidence. However, as noted by the district
court, Abeln repeatedly made consistent
statements to various persons about
Westmoreland’s involvement in Deborah Abeln’s
murder. Even more incriminating were
Westmoreland’s own statements. In his taped
conversations with Abeln, Westmoreland stated
that the police were lying when they said that
they had recovered Deborah’s jewelry, which had
in fact been taken when she was murdered.
Westmoreland also stated that "they can’t do shit
to me cause I was, they know I was out of the
country . . . . All I do, all I’m doing is
concealing evidence from what I know, okay?"
Westmoreland also assured Abeln that the alleged
murderer would not talk: "[H]e ain’t gonna say a
word. Do, do you think he want to go to jail?"
These statements bear "sufficient indicia of
reliability," and the district court correctly
considered them for sentencing purposes.
Accordingly, the district court did not err in
determining that Westmoreland had participated in
the murder of Deborah Abeln in furtherance of the
drug conspiracy.

      It was also not a violation of Westmoreland’s
constitutional rights to subject him to the
cross-reference. "[S]entencing judges may look to
the conduct surrounding the offense of conviction
in fashioning an appropriate sentence, regardless
of whether the defendant was ever charged with or
convicted of that conduct, and regardless of
whether he could be." United States v. Dawn, 129
F.3d 878, 884 (7th Cir. 1997). The only gloss
applied to this rule by Apprendi is the
requirement that facts not set forth in an
indictment and charged to a jury may not be used
to increase a defendant’s sentence beyond the
prescribed statutory maximum. We are mindful that
the rule of Apprendi may eventually be extended
to the requirement that any fact that increases
a defendant’s sentence must be so presented. See
Apprendi, 120 S.Ct. at 2369-79 (Thomas, J. and
Scalia, J., concurring). However, the majority in
Apprendi did not extend its rule in this manner,
and we decline to extend Apprendi in such a
fashion today.

      Apprendi applies only to facts that increase a
defendant’s sentence beyond the prescribed
statutory maximum. However, under the Sentencing
Guidelines, it is not possible to apply the
cross-reference in a manner that produces a
sentence greater than the statutory maximum
applicable to the charged crime. See U.S.S.G.
sec. 5G1.1(a) ("Where the statutorily authorized
maximum sentence is less than the minimum of the
applicable guideline range, the statutorily
authorized maximum sentence shall be the
guideline sentence."); see also U.S.S.G. sec.
5G1.1(c) ("In any other case, the sentence may be
imposed at any point within the applicable
guideline range, provided that the sentence (1)
is not greater than the statutorily authorized
maximum sentence . . . ."). Therefore, even
though the murder cross-reference will always
allow for a life sentence, the Guidelines require
that the cross-reference only increase the
defendant’s sentence at most to the statutory
maximum associated with the charge on which the
defendant was convicted. Thus, if a defendant to
whom the 20-year statutory maximum under sec.
841(b)(1)(C) applies is subject to a 10-year
sentence under the Guidelines for the drug charge
alone, the murder cross-reference may be applied
to increase the defendant’s sentence only to 20
years imprisonment, but no more. Accordingly, the
strictures of Apprendi do not affect a sentencing
judge’s decision to enhance a defendant’s
sentence under U.S.S.G. sec. 2D1.1(d) because
this Guidelines section cannot act to enhance the
sentence beyond the statutory maximum associated
with the crime of which the defendant was
convicted. See Talbott v. Indiana, 226 F.3d 866,
869 (7th Cir. 2000) ("Apprendi does not affect
application of the relevant-conduct rules under
the Sentencing Guidelines to sentences that fall
within a statutory cap.").

C.   Motion for a New Trial

      A denial of a motion for a new trial is
reviewed for abuse of discretion. See United
States v. Fruth, 36 F.3d 649, 652 (7th Cir.
1994). When faced with a claim that a witness
testified falsely, a district court should grant
a new trial when:
(a) The court is reasonably well satisfied that
the testimony given by a material witness is
false.

(b) The jury might have reached a different
conclusion absent the false testimony or if it
had known that testimony by a material witness
was false.

(c) The party   seeking the new trial was taken by
surprise when   the false testimony was given and
was unable to   meet it or did not know of its
falsity until   after the trial.

United States v. Reed, 986 F.2d 191, 192-93 (7th
Cir. 1993). However, "mere speculation or
conjecture is insufficient to warrant a new
trial." United States v. Reed, 2 F.3d 1441, 1451
(7th Cir. 1993). Westmoreland does not satisfy
the requirements for a new trial based upon the
false testimony of a witness. Abeln’s false
testimony related only to the murder of his wife,
not to the drug conspiracy. More importantly,
given the overwhelming evidence against
Westmoreland (including, for example, the cocaine
found in Westmoreland’s car), Westmoreland would
have been convicted on the charge of conspiracy
to distribute drugs even absent Abeln’s allegedly
false testimony regarding Westmoreland’s
understanding of the reason that Abeln’s wife was
to be murdered. Consequently, the district court
did not abuse its discretion by denying
Westmoreland’s motions for a new trial.

III.   CONCLUSION

      The government has requested that we grant it
the discretion to pursue either resentencing or
retrial. However, because the only error relating
to Westmoreland’s conviction--the improperly
admitted hearsay statements-- is harmless, only
resentencing is appropriate, not retrial. See
United States v. Nordby, 225 F.3d 1053, 1062 (9th
Cir. 2000).

      For the foregoing reasons, the judgment of
conviction is Affirmed and the sentence is Vacated.
The case is Remanded for further proceedings
consistent with this opinion.


/1 Through the testimony of two Illinois State
Police officers, the following hearsay statements
of Abeln (as summarized in Westmoreland’s brief)
were admitted at trial:

A. The police should check out Westmoreland in the
killing of [Abeln’s] wife.
B. [Abeln] and Westmoreland were involved in the
killing of [Abeln’s] wife.

C. [Abeln] and Jestis would fly Abeln’s plane to
southern Texas, receive cocaine and marijuana
from a white guy who brought it up from Mexico,
and would give it to Westmoreland in St. Louis to
distribute.

D. [Abeln] flew down one time and brought back 8
kilos of cocaine and bundles of marijuana.

E. Westmoreland’s motive was that he owed Abeln
money for a drug debt.

F. When Abeln told Westmoreland he was having
trouble with his wife and couldn’t afford a
divorce, Westmoreland said to him he could get
someone taken care of for $1,000.

G. Westmoreland owed Abeln $7,000 for the drug
business and helping him would wipe out the debt.

H. Westmoreland was the "hook" and had the drug
connection, and Abeln would make $17,000 per
kilo.

I. Abeln received his money after Westmoreland
sold the drugs.

J. The getaway car was a blue Dodge pick-up,
perhaps a "beater."

Appellant’s Br. at 21-22 (citations omitted).

/2 The government argues that Westmoreland both
improperly raised a Confrontation Clause argument
in his supplemental motion for new trial and
waived his right to raise the argument on appeal
by failing to raise it in his opening brief in
Appeal No. 99-1491. The district court appears to
have exceeded the scope of this court’s remand by
entertaining arguments based upon Lilly in
Westmoreland’s supplemental motion for a new
trial. However, this court will still consider
Lilly because, contrary to the government’s
position, Westmoreland did not fail to raise a
Confrontation Clause argument in his opening
brief in Appeal No. 99-1491, and Lilly clearly
governs the hearsay issues raised in this appeal.


/3 Abeln’s description of the pick-up truck that was
used for the murders is certainly not a statement
against interest, nor any other form of
admissible hearsay. However, the description of
the pick-up truck is a minor detail and its
admission is harmless error, as described below.

/4 Westmoreland is correct to note that in United
States v. Robinson we stated that "it’s not a
terribly bad idea" to hear personally from
witnesses instead of relying upon hearsay
testimony. 164 F.3d 1068, 1070 (7th Cir. 1999).
However, the remainder of Robinson (finding that
hearsay statements relied upon for sentencing
purposes did not include sufficient indicia of
reliability) does not help Westmoreland. The
hearsay statements in Robinson were nonsensical
and clearly contrary to the other evidence. Here,
Abeln’s statements were generally consistent,
both internally and with the remainder of the
evidence.

/5 However, we note that Apprendi does not apply
when drug quantity is used to reach a sentence
that falls beneath the statutory maximum. See
United States v. Talbott, 226 F.3d 866, 869 (7th
Cir. 2000). "Thus, for example, when the
statutory maximum is life imprisonment, Apprendi
is beside the point." Id. Further, while we
believe that Apprendi may, under certain
circumstances, also require that drug type (as
opposed to only drug quantity) be charged in the
indictment and submitted to the jury in certain
cases, that issue is not before us and we
therefore do not decide it.
