                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-3819
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                             v.

RICHARD TAYLOR,
                                       Defendant-Appellant.
                       ____________
         Appeal from the United States District Court
               for the Central District of Illinois.
         No. 04-CR-10040—Michael M. Mihm, Judge.
                       ____________
ARGUED SEPTEMBER 13, 2006—DECIDED DECEMBER 20, 2006
                   ____________


 Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. On March 9, 2005, a jury
found Richard Taylor guilty of manufacturing and pos-
sessing with the intent to manufacture more than 1000
marijuana plants. The district court judge sentenced
Taylor to 120 months’ imprisonment, the statutory man-
datory minimum. Taylor appeals, challenging the district
court’s denial of his motion to suppress on the grounds
that the search warrant affiant intentionally omitted
information about his confidential source that impacted
the issuing judge’s probable cause determination. We
affirm the district court’s denial of Taylor’s motion to
suppress because even considering the omitted informa-
tion, the search warrant affidavit contained sufficient
2                                               No. 05-3819

information to find probable cause to search. Next, Taylor
challenges his sentence by alleging that the jury’s special
finding that he manufactured or possessed with the in-
tent to manufacture more than 1000 marijuana plants
was based solely on inadmissible hearsay concerning the
number of marijuana plants that were seized from his
home and unsupported by the evidence. We vacate the
jury’s special finding because we conclude that the dis-
trict court committed plain error in allowing the hearsay
testimony regarding the number of marijuana plants,
resulting in a miscarriage of justice in Taylor’s sentencing.
We also vacate Taylor’s sentence and remand this case
for resentencing.


                   I. BACKGROUND
A. The Procurement and Execution of the Search
   Warrant
   On May 14, 2004, Detective John Atteberry of the
Bloomington Police Department spoke with a confiden-
tial source (“CS 241”) about a marijuana-growing opera-
tion run by Taylor out of his home at 909 South East
Street in Bloomington, Illinois. According to CS 241,
Taylor started the operation fifteen years earlier and grew
150 to 200 plants each year at a property near Quincy,
Illinois, resulting in an annual cash value of $500,000. CS
241 told Detective Atteberry that Taylor was presently
growing 160 plants on his property beneath a tarp next
to a boat and near a six-foot high fence. CS 241 also gave
the detective a physical description of Taylor and his
home. Following his conversation with CS 241, Detective
Atteberry conducted drive-by surveillance of the prop-
erty and observed a man matching Taylor’s description
walk toward the front of the house. The detective also
observed a boat in the back of the home covered by a
white tarp. On May 24, 2004, Detective Atteberry watched
No. 05-3819                                                   3

CS 241 place a phone call to Taylor to confirm that the
plants were still present at the property.
  That same day, Detective Atteberry appeared before a
McLean County judge and presented a search warrant
affidavit that included the above-recited information. The
judge issued a search warrant, and Detective Atteberry
executed it at Taylor’s home while Taylor’s wife was
present. During the search, another detective, Kenneth
Bays, discovered marijuana plants in Taylor’s backyard
growing out of multiple styrofoam cups that filled four
large containers, or flats, that were located between a
fence and a boat. After the plants were removed from the
property, Detective Bays generated a police report, stating
that 1417 marijuana plants had been counted.
  Taylor, who was not home during the search, was later
arrested and indicted for unlawful manufacture of and
possession with intent to manufacture more than 1000
marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A). Taylor moved to quash the search warrant
and suppress the evidence seized from his property on
several grounds; however, only those pertinent to this
appeal will be discussed in detail.1 First, Taylor alleged
that Detective Atteberry deliberately and with reckless
disregard for the truth omitted information from the
warrant affidavit regarding informant CS 241’s criminal
history, probation violations, drug usage, and cash pay-


1
  Taylor also claimed in his motion to suppress that the police
failed to properly “knock and announce” before entering Taylor’s
home, see Wilson v. Arkansas, 514 U.S. 927 (1995), and that
they obtained Taylor’s post-arrest statements in violation of
his Fifth Amendment right against self-incrimination, see
Miranda v. Arizona, 384 U.S. 436 (1966). After testimony was
heard on these issues at the motion to suppress hearing, the
district court found no violation on these grounds. Taylor does
not include these claims in his appeal.
4                                                      No. 05-3819

ments from the Bloomington Police Department in ex-
change for providing information about Taylor’s case and
others. According to Taylor, these omissions created “a
false and misleading impression of CS 241’s credibility
for the state court judge’s consideration of probable
cause.” Second, Taylor took issue with Detective Atte-
berry’s description of CS 241, a documented informant
with the Bloomington Police Department, as a “concerned
citizen.” Lastly, Taylor complained that the phone call that
CS 241 placed to Taylor to confirm the plants’ continued
presence at his home was unrecorded and not heard
directly by Detective Atteberry. After a preliminary re-
view of Taylor’s motion to suppress, the district court
determined that a hearing pursuant to Franks v. Dela-
ware, 438 U.S. 154 (1978) was necessary to inquire into
three issues concerning the warrant affidavit: (1) Detective
Atteberry’s use of the term “concerned citizen” to describe
CS 241, (2) the detective’s statement that CS 241 “has
been and continues to be considered reliable,” and (3) the
telephone call placed by CS 241 to Taylor about the
marijuana plants.2


B. The Franks Hearing
  Detective Atteberry, the affiant of the search warrant
complaint, was the only witness to testify at the Franks
hearing. There, he stated that when he first met with CS
241 about Taylor’s case, he knew CS 241 was a docu-


2
   In Franks, the Supreme Court held that the Fourth Amend-
ment requires that a hearing be conducted “where the defen-
dant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disre-
gard for the truth, was included by the affiant in the warrant
affidavit, and . . . the allegedly false statement is necessary to the
finding of probable cause . . . .” 438 U.S. at 155-56.
No. 05-3819                                                 5

mented informant for the Bloomington Police Department.
Detective Atteberry explained that he had described CS
241 as a “concerned citizen” in a report attached to the
warrant affidavit because it was his department’s prac-
tice to refer to a confidential source as a “concerned citi-
zen” in first interview reports to hide the source’s identity.
The detective then stated that he did not intend to influ-
ence the judge issuing the search warrant by his use of the
phrase “concerned citizen” and that he did not use the
reference in the actual warrant affidavit.
  Detective Atteberry also explained his reasons for call-
ing CS 241 reliable by detailing CS 241’s involvement
in past police investigations. Specifically, in 1998, when
CS 241 began working with the Bloomington Police
Department, his participation in an investigation led to
eight arrests and convictions in a cannabis trafficking
scheme; in 2003, CS 241 helped in a marijuana sales
case that led to one guilty plea and two pending matters;
and in 2004, CS 241 assisted in a cocaine investigation
which led to an eight-year prison term for the defendant
in that case. When asked by Taylor’s defense counsel why
he did not include this information in the search war-
rant affidavit, Detective Atteberry responded that he
had never included an informant’s track record in an
interview report. Detective Atteberry then testified that
he personally ascertained CS 241’s reliability by corrobo-
rating the informant’s statements about Taylor. The
detective confirmed that Taylor resided at the address by
reviewing the water and tax bills for the property and
Taylor’s prior arrest records. Detective Atteberry also
stated that he drove by the property and observed the
wooden fence, boat, and tarp described by CS 241.
  Finally, Detective Atteberry testified that he had CS 241
place a phone call to Taylor to confirm that the plants
were still at the property. He explained that he did not
record the phone conversation because he believed to do so
6                                            No. 05-3819

would have been against state law. He then testified that
he heard the informant’s side of the conversation and
could hear that the informant was talking to a male. Once
the conversation ended, according to Atteberry, the
informant told him that Taylor stated the plants were
still located at his home.
  At the conclusion of the Franks hearing, the district
court denied Taylor’s motion to suppress. In doing so, the
court acknowledged that Detective Atteberry erred in
referring to the informant as a “concerned citizen” and
admonished the Bloomington Police Department to stop
using the term altogether in future affidavits. The court
found, however, that the detective did not use the misno-
mer in an attempt to “mislead” the issuing judge and
that reading the affidavit in its totality would not leave
the impression that a “concerned citizen” from the com-
munity was providing the information to the detective. The
court also found the warrant affidavit’s statement that CS
241 “has been used on multiple investigations in the past
by the Bloomington Police Department Vice Unit and
has been and continues to be considered reliable” to be
lacking in detail and conclusory. However, the court
speculated that if the issuing judge had heard Detective
Atteberry’s testimony about CS 241’s assistance in past
investigations “it would have made arguably an ironclad
application as opposed to pointing away from probable
cause, which certainly could sometimes be the case.” The
court also thought the case presented an “unusual amount
of corroboration” further buttressing the probable cause
determination. Lastly, the court did not find Detective
Atteberry’s failure to listen in on the informant’s phone
conversation with Taylor to be “fatal to the situation.”


C. Taylor’s Trial and Post-Trial Motions
 Taylor’s trial commenced on March 7, 2005. The govern-
ment’s case-in-chief included testimony by Detectives
No. 05-3819                                                      7

Atteberry and Bays regarding the discovery of the mari-
juana plants and their methodology for counting them:
Detective Bays found the plants in Taylor’s yard located
next to a privacy fence, surrounded by boards and other
debris, and enclosed by a wrought iron fence. Within the
enclosure, the plants were growing in multiple styrofoam
cups filled with soil. The cups were placed in four large
plastic flats. Without removing the plants from the flats,
Detective Bays transported them from Taylor’s home to
the Bloomington Police Department to be counted. There,
Detective Bays, Atteberry and a third detective, Tim
McCoy, divided up the four flats between them and
counted their respective share of the plants. The detectives
counted the plants by pulling the stalks from the styro-
foam containers and counting each stalk that had roots
and leaves as a plant. Detective Bays then added the
detectives’ individual counts together for a total of 1417
plants, which he recorded in the police report.3 The
detectives later destroyed their notes of their individual
count of the plants and the tabulation of the counts; they
also destroyed the styrofoam cups in which the plants
were found. Detective McCoy did not testify. Neither
Detective Atteberry nor Detective Bays testified as to the
number of plants that he had individually counted. Tay-
lor’s counsel cross-examined both detectives and made
no hearsay objections concerning the number of plants
counted.
  Detective Bays also testified regarding a video recording
that he had taken of the plants as they were growing in
Taylor’s yard and after they were transported to the police
station, which was played for the jury during his testi-
mony. The still photo images that Bays made from the
video were also admitted into evidence. In addition, the


3
    The police report was not offered or admitted as evidence.
8                                               No. 05-3819

jury was able to view the actual marijuana plants that
were seized from Taylor’s backyard; however, they were
not in their original form. Rather, the plants were dis-
played with their leaves separated from their stalks.
  In presenting his defense, Taylor testified and denied
knowingly manufacturing or possessing with the intent to
manufacture more than 1000 marijuana plants. He also
presented witnesses who had visited his home in the days
leading up to the execution of the search warrant who
said they did not observe or detect anything illegal or
unusual in his driveway or near his fence.
  On March 9, 2005, the jury found Taylor guilty of
manufacturing with the intent to manufacture marijuana.
The jury also completed a form to indicate its special
finding of the number of plants for which Taylor was
responsible. The form listed the following options:
    ___   1000 or more marijuana plants
    ___   100 or more but less than 1000 marijuana plants
    ___   50 or more but less than 100 marijuana plants
    ___   less than 50 marijuana plants
The jury selected the first option.
  Following the entry of the jury’s verdict, Taylor filed a
motion for a new trial, or alternatively, to vacate the jury’s
special finding that he was responsible for 1000 or more
marijuana plants. In the motion, Taylor claimed that
the jury’s finding was based solely on the testimony from
Detectives Atteberry and Bays concerning the total
number of the plants, which was based on inadmissable
hearsay. Taylor argued that the admission of this testi-
mony was a violation of his rights guaranteed by the
Sixth Amendment’s Confrontation Clause and constit-
uted plain error. Taylor’s motion also argued that the
government’s evidence was legally insufficient to prove
No. 05-3819                                                     9

that Taylor was responsible for 1000 or more marijuana
plants. After hearing arguments regarding Taylor’s mo-
tion and reviewing the evidence of the marijuana plants
submitted to the jury, the court denied Taylor’s motion for
a new trial.


D. Taylor’s Sentence
  Taylor’s Sentencing Guidelines range was based on a
criminal history category of I and a base offense level of
26,4 subject to two separate 2-point adjustments for a
total offense level of 30.5 The resulting Guidelines range
was 97 to 121 months. However, because the jury found
that Taylor was responsible for more than 1000 marijuana
plants, Taylor was subject to the statutory mandatory
minimum of 120 months of imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(vii). The district court sentenced Taylor to
a term of 120 months. Taylor then filed this appeal
challenging the court’s denials of his motion to suppress
and motion to vacate the jury’s special finding. He re-
quests that either his conviction be reversed or that his
sentence be vacated and his case remanded for resen-
tencing.


4
   The offense level of 26 resulted from a drug quantity of “at
least 100 KG but less than 400 KG of Marihuana.” See U.S.
SENTENCING GUIDELINES MANUAL § 2.D1.1(c) (2004) (“Guide-
lines”). Per the Guidelines, each marijuana plant equals 100
grams of marijuana. The reported 1417 plants confiscated from
Taylor’s home equaled 142 kilograms of marijuana.
5
   Due to the district court’s finding that Taylor committed
perjury during the trial, Taylor received a two-point adjustment
for obstruction of justice under § 3C1.1 of the Guidelines. Taylor
received a second two-point adjustment for possession of a
firearm under § 2D1.1(b)(1) for the loaded handgun that was
confiscated from his home during the search.
10                                            No. 05-3819

                     II. ANALYSIS
A. Taylor’s Motion to Suppress
  We will declare a search warrant invalid and exclude
the fruits of the search if the defendant can show by a
preponderance of the evidence that: (1) the search war-
rant affiant committed perjury or acted with reckless
disregard by including false statements in the warrant
affidavit, and (2) upon the exclusion of those false state-
ments from the search warrant (and inclusion of any
omitted material facts) the remaining information is
insufficient to establish probable cause. See Franks, 438
U.S. at 155-56; United States v. Pace, 898 F.2d 1218, 1232-
33 (7th Cir. 1990). While we review the district court’s
denial of a defendant’s motion to suppress for clear error,
United States v. White, 416 F.3d 634, 637 (7th Cir. 2005),
we review de novo the legal conclusions reached by the
court in determining the existence of probable cause,
United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.
2006).
  When an informant, such as CS 241, provides the facts
and circumstances used to support a finding of probable
cause, we determine the legitimacy of the probable cause
finding by assessing the informant’s “reliability, veracity
and basis of knowledge.” United States v. Olson, 408 F.3d
366, 370 (7th Cir. 2005). Our inquiry considers whether
the informant “(1) had firsthand knowledge; (2) provided
sufficient details; (3) relayed information which was
subsequently corroborated; and (4) testified at a prob-
able cause hearing.” Id.
  With respect to the first factor, Detective Atteberry’s
warrant affidavit relates that CS 241 “had been present at
[Taylor’s] residence on numerous occasions when illegal
cannabis sativa plants were present.” In addition, the
warrant states that CS 241 had last seen the plants on
May 20, 2004, four days before the warrant was issued. CS
No. 05-3819                                               11

241’s first-hand observation of the marijuana plants at
Taylor’s home, which occurred shortly before the execu-
tion of the warrant, supports a finding that his informa-
tion was reliable. See United States v. Lloyd, 71 F.3d 1256,
1263 (7th Cir. 1995) (recognizing that an informant’s first-
hand observations support a finding of reliability).
  Concerning the amount of detail provided by the infor-
mant, the warrant recounts specifics relayed by CS 241 to
Detective Atteberry about Taylor and his marijuana-
growing operation. In the interview, CS 241 provided
Taylor’s full name, weight, height, and telephone number,
and described the address and color of Taylor’s home as
well as the type of car he drove. CS 241 also told Detective
Atteberry that during the past fifteen years Taylor had
grown 150 to 200 plants each year and that he dried,
packaged and sold the plants, yielding an annual cash
value of $500,000. Moreover, CS 241’s information about
Taylor’s growing activity was current. Four days before
Detective Atteberry obtained the search warrant, CS 241
reported that Taylor was growing 160 plants which were
located on his property underneath a tarp next to his boat
near the six-foot tall fence; that the plants had grown to
four feet in height; and that Taylor routinely removed the
tarp each morning to expose the plants to sunlight and air.
The considerable detail supplied by CS 241 about Taylor
and his marijuana growing operation bolsters the infor-
mant’s credibility.
  Third, the veracity of the statements CS 241 made to
Detective Atteberry is further underscored by the detec-
tive’s ability to corroborate the majority of the informant’s
story. The warrant itself states that Atteberry, during his
surveillance of the property, observed a man matching
CS 241’s description of Taylor exit a vehicle and walk
toward the front of the house. At the Franks hearing,
Detective Atteberry testified that he confirmed that Taylor
resided at the address given by CS 241 by looking at the
12                                                   No. 05-3819

water and tax bills for the property. Detective Atteberry
also corroborated CS 241’s story about the plants grow-
ing on the property by having the informant place a call
to Taylor and confirm that the plants were still there on
the day the warrant was issued.6 The corroboration of CS
241’s statements through Atteberry’s independent in-
vestigation proves that the informant was truthful.
  Lastly, we consider whether CS 241 testified at the
probable cause hearing. In this case, CS 241 did not testify
before the issuing judge; however, as we pointed out in
United States v. Brack, 188 F.3d 748 (7th Cir. 1999), of
the four factors “[n]o one factor is dispositive[;] [e]ach is
simply a relevant consideration in the totality of circum-
stances analysis. Therefore, a deficiency in one factor may
be compensated for by a strong showing in another or by
some other indication of reliability.” Id. at 756 (citing
Illinois v. Gates, 462 U.S. 213, 233 (1983)). At the Franks
hearing, Detective Atteberry testified about CS 241’s
previous assistance to the Bloomington Police Department
in drug investigations that ultimately led to multiple
arrests and convictions. CS 241’s track record of provid-
ing useful information to the authorities is strong evi-
dence that the informant is a reliable source of informa-
tion.
  Therefore, Taylor’s argument that Detective Atteberry
misrepresented CS 241’s credibility in omitting informa-
tion concerning the informant’s criminal background and
receipt of cash payments from the Bloomington Police
Department fails. Furthermore, an informant’s crim-
inality does not in itself establish unreliability. See
United States v. Garcia, 66 F.3d 851, 856-57 (7th Cir.


6
  On appeal, Taylor does not further contend that Detective
Atteberry’s failure to listen in on the phone call placed by CS 241
to Taylor affected a finding of probable cause.
No. 05-3819                                               13

1995), overruled on other grounds by United States v.
Nance, 236 F.3d 820 (7th Cir. 2000). Nor is an affidavit’s
omission of an informant’s motive for providing informa-
tion necessarily essential to a probable cause determina-
tion, especially when the informant is sufficiently reliable
that probable cause would have been found even if the
motive were included. See Molina ex rel. Molina v. Cooper,
325 F.3d 963, 970 (7th Cir. 2003). Since Detective
Atteberry corroborated CS 241’s statements, even if the
affidavit included information regarding CS 241’s crim-
inal background and payment history, this information
would not have detracted from a finding of probable cause.
  Taylor next takes issue with Detective Atteberry’s use of
the descriptor “concerned citizen” to refer to CS 241 in the
affidavit. Considering that the phrase “concerned citizen”
appears only once and in an attachment to the warrant
affidavit, and CS 241 is first identified in the body of
the affidavit as a “confidential informant/source,” it is
unlikely that Detective Atteberry’s use of the phrase
unduly misled the judge’s probable cause determination,
especially in light of the corroborated information regard-
ing Taylor’s illegal activity that appears throughout the
affidavit.
  CS 241’s reliability as an informant has been convinc-
ingly demonstrated through the informant’s first-hand
observation of Taylor’s illegal activity, detailed statements
to Detective Atteberry that the detective was able to later
corroborate, and past involvement with the police in
numerous investigations that resulted in arrests and
convictions of the targeted suspects. Because we find that
the search warrant was supported by probable cause, the
district court’s denial of Taylor’s motion to suppress the
evidence of the marijuana plants was proper and is hereby
affirmed.
14                                              No. 05-3819

B. Taylor’s Motion to Vacate the Jury’s Special
   Finding
  After a jury found Taylor guilty of the charges in the
indictment, he moved for an order granting him a new
trial, or in the alternative, vacating the jury’s special
finding that he manufactured or possessed with the in-
tent to manufacture more than 1000 marijuana plants.
The district court denied both of Taylor’s requests for
relief. On appeal, Taylor maintains that the jury’s special
finding should be vacated because it was (1) based on
inadmissible hearsay in violation of his Sixth Amendment
right to confront witnesses against him, and (2) unsup-
ported by the evidence. Taylor requests that this court
either reverse his conviction or vacate his sentence and
remand his case for resentencing.
  Taylor points out that when Detectives Atteberry and
Bays testified that a total of 1417 marijuana plants were
counted, neither detective testified to his individual count
of his share of the plants, and the third detective who
participated in the count, McCoy, did not testify at all.
Taylor contends that the total number of plants testified
to by Atteberry and Bays was based upon inadmissible
hearsay—McCoy’s out-of-court statements regarding his
count of his portion of the plants. According to Taylor, the
district court erred in admitting this testimony and in
doing so, violated his right to be confronted with the
witnesses against him as guaranteed by the Sixth Amend-
ment to the Constitution.
  Taylor’s counsel, however, failed to object to the district
court’s admission of this testimony at trial, and, instead,
raised this issue for the first time in his motion for a new
trial. Because Taylor did not assert a timely objection, he
forfeited his right to assign error to the district court’s
admission of the testimony on appeal; therefore, our
review is for plain error. See United States v. Ross, 77 F.3d
No. 05-3819                                              15

1525, 1538 (7th Cir. 1996). To establish that the district
court committed plain error, Taylor must demonstrate
that “(1) there was error; (2) the error was plain; and (3)
the error affected [his] substantial rights.” Id. (citing
United States v. Olano, 507 U.S. 725, 731 (1993)). If Taylor
can make such a showing, we have discretion to take
remedial measures if the forfeited error “seriously affects
the fairness, integrity or public reputation of judicial
proceedings,” or, in other words, causes “a miscarriage of
justice.” See United States v. Stewart, 411 F.3d 825, 829
(7th Cir. 2005) (internal citations omitted).
  It is clear that error was committed at Taylor’s trial
when the district court allowed Detectives Atteberry and
Bays to testify regarding the total number of plants
counted. The detectives’ testimony on this particular
issue was based on inadmissible hearsay—Detective
McCoy’s individual count of his share of the plants.
Neither Detective Atteberry or Bays counted 1417 plants
alone. The testimony of Detectives Atteberry and Bays as
to the total number of plants was predicated on McCoy’s
count; however, McCoy did not testify at trial. The govern-
ment made no showing that McCoy was unavailable to
testify, nor is there any indication that Taylor’s counsel
had a prior opportunity to cross-examine McCoy regarding
his count of the plants. By allowing the testimony of
Detectives Atteberry and Bays regarding the total number
of plants counted, the district court effectively admitted
McCoy’s out-of-court statements to prove that Taylor
was responsible for more than 1000 marijuana plants.
Because the admission of McCoy’s statements contravenes
the protections of the Sixth Amendment’s Confrontation
Clause, the district court’s error was plain. See Crawford
v. Washington, 541 U.S. 36, 68 (2004) (holding that the
Confrontation Clause prohibits the admission of testimo-
nial statements of a witness who did not appear at trial,
unless the witness was unavailable to testify or the
16                                                   No. 05-3819

defendant had a prior opportunity for cross-examination);
see also United States v. Gilbertson, 435 F.3d 790, 795 (7th
Cir. 2006) (concluding that “testimonial statements” are
those “made following government official initiated
ex parte examination or interrogation developed in antici-
pation of or in aid of criminal litigation”).7
  Next, we consider whether Taylor has shown that the
district court’s error affected his substantial rights. See
Olano, 507 U.S. at 734. To accomplish this, Taylor must
show that the error was prejudicial in that it affected the
outcome of his trial. See id. Taylor points to the remarks
made by the district court judge upon denying Taylor’s
motion for a new trial:
     Certainly I don’t believe it’s possible, standing on
     its own, to get from those pictures to the figure of
     over a thousand. There obviously were a large
     number of plants, hundreds. But whether it was
     over a thousand, I think it would not be possible to
     get to over a thousand without engaging in a
     certain amount of speculation. The pictures do


7
  The detectives’ process of counting the marijuana plants
was performed in the course of their criminal investigation of
Taylor. Detective Atteberry testified at trial that after seizing
the plants from Taylor’s home, “[o]ur concern was the actual
count of the evidence and the evidence was the plant itself.” Trial
Tr. at 25. Detective Bays likewise testified that his “focus was
the number of plants,” and that once he tallied the detectives’
individual counts, he recorded the total number of plants in the
police report. Id. at 48-50. It is therefore without question that
the count of the plants was initiated by the government and
carried out for purposes of future criminal prosecution of Taylor.
Indeed, Taylor was indicted for knowingly manufacturing or
possessing with the intent to manufacture more than 1000
marijuana plants, a charge that could not have been made
without first counting the plants found in Taylor’s home.
No. 05-3819                                                17

    create a background for the testimony that oc-
    curred by one of the officers who did testify and
    who went on to explain, in addition to the pictures,
    what the methodology was that was used for the
    counting.
                            ...
    We do have the plants themselves that were shown
    to the jury, but I don’t see how the jury could make
    much out of that, a bunch of dried-up plants.
    Certainly assigning numbers would not be some-
    thing you could do from that. But we have the
    pictures. We have the physical evidence. We have
    the DVD of the plants growing. We have the officer
    testifying as to the methodology of the count and
    two of the three officers subject to cross-examina-
    tion, Bays and Atteberry. McCoy did not testify.
See Tr. of Cont’d. Hr’g on Post-Trial Mots. at 17-18.
  As the district court observes, without the testimony
of the detectives concerning the total number of plants
reportedly counted, the pictures and the physical evidence
of the plants alone are not enough to establish that more
than 1000 plants were found at Taylor’s home. The
admissible portions of the detectives’ testimony also
cannot support the jury’s finding that Taylor was respon-
sible for over 1000 plants. Detective Bays testified that he
did not keep track of the number of styrofoam cups that
housed the plants, although he estimated that there were
between thirty to thirty-five cups in each of the four flats.
Trial Tr. at 48. Detective Atteberry did not know the exact
number of styrofoam cups holding the plants either;
however, he testified that “there [were] well over a hun-
dred of them.” Id. at 24. Without the detectives’ testimony
that their individual counts totaled 1417, there is no
support for the jury’s conclusion that approximately 150
cups held over 1000 plants. However, that Taylor was
responsible for only “100 or more but less than 1000
18                                            No. 05-3819

marijuana plants,” is clearly supported by the photo-
graphic evidence of the plants. But because the jury’s
finding as to the quantity of drugs for which Taylor was
responsible was impacted by the district court’s ad-
mission of the hearsay testimony, the error affected
Taylor’s substantial rights.
  Although Taylor has established that the district court
committed plain error that affected his substantial rights,
we only have discretion to take remedial measures when
the forfeited error causes “a miscarriage of justice.” See
Stewart, 411 F.3d at 829. An error can be found to have
such an effect “independent of the defendant’s innocence.”
Olano, 507 U.S. at 736. The jury’s special finding that
Taylor manufactured or possessed with the intent to
manufacture more than 1000 marijuana plants subjected
Taylor to a mandatory minimum sentence of 120 months
under 21 U.S.C. § 841(b)(1)(A)(vii). The district court
subsequently committed Taylor to a term of 120 months of
imprisonment. As we explained above, after the detectives’
hearsay testimony is excluded, the pictures and physical
evidence of the plants alone do not support the jury’s
special finding that there were over 1000 marijuana
plants. Because Taylor’s sentence is directly attributable
to the jury’s finding, to allow it to stand would be a
miscarriage of justice. See United States v. Paladino, 401
F.3d 471, 481 (7th Cir. 2005).
  As a result, we conclude that there is insufficient
competent evidence in the record to support the jury’s
special finding that Taylor was responsible for more than
1000 marijuana plants. Accordingly, we vacate the jury’s
special finding and Taylor’s sentence of 120 months, and
we remand this case to the district court for the imposi-
tion of a sentence consistent with this opinion.
No. 05-3819                                           19

                 III. CONCLUSION
  The district court’s denial of Taylor’s motion to sup-
press is AFFIRMED. Taylor’s sentence of 120 months is
VACATED and this matter is REMANDED to the district
court for resentencing.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—12-20-06
