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1
IN THE UNITED STATES COURT OF APPEALS
2
FOR THE FIFTH CIRCUIT
3
_______________
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No. 92-4363
5
No. 92-4747
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_______________
7
UNITED STATES OF AMERICA,
8
Plaintiff-Appellee,
9
VERSUS
10
JOE ALLEN BOUNDS,
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Defendant-Appellant.
12
_________________________
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Appeals from the United States District Court
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for the Western District of Louisiana
15
_________________________
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(February 18, 1993)
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Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
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JERRY E. SMITH, Circuit Judge:
19
I.
20
Defendant Joe Allen Bounds moved from Texas to Louisiana to
21
set up an amphetamine manufacturing business. He taught others how
22
to "cook" amphetamine and served as a supplier of chemicals and
23
glassware. The defendant, his common-law wife Deborah Richardson,
24
and four others set up a lab in a double-wide trailer near
25
Kingston, Louisiana, in early 1988. Bounds obtained glassware and
26
chemicals for use in the operation. A camper trailer normally
27
parked adjacent to the trailer served as a sleeping place for

28
Bounds and Richardson. Bounds kept a Winchester 12-gauge shotgun
29
and a Smith & Wesson .357 revolver to protect the drugs.
30
Because he feared detection, Bounds decided to transfer the
31
operation to a single-wide trailer near Kitsatchie, about 11.5
32
miles away. Bounds moved one set-up of equipment to this trailer
33
and stored four extras in a rental locker near Shreveport. The
34
authorities established surveillance of each location and executed
35
search warrants at the trailers. At the single-wide, they found a
36
cook in progress and seized numerous pieces of glassware, chemi-
37
cals, gas masks, recipes, and weapons. The double-wide contained
38
evidence of prior cooks, including chemicals, scales, thermometers,
39
plastic tubing, rolling papers, ammunition for a shotgun, and other
40
incriminating objects. The authorities found the shotgun and
41
revolver in the camper trailer; Bounds admitted the weapons were
42
his. In the storage locker, the authorities found much additional
43
evidence.
44
II.
45
On July 21, 1988, a grand jury indicted Bounds and four others
46
on a variety of drug and gun charges arising out of their operation
47
of two related clandestine amphetamine laboratories. The indict-
48
ment charged Bounds with conspiracy to manufacture amphetamine and
49
phenylacetone in violation of 21 U.S.C. � 846 (count I), manufac-
50
turing and attempting to manufacture amphetamine and phenylacetone
51
in violation of 21 U.S.C. � 841(a)(1) (count II), use of a firearm
52
during and in relation to a drug trafficking offense in violation
2

53
of 18 U.S.C. � 924(c) (count III), and being a convicted felon in
54
possession of a firearm in violation of 18 U.S.C. � 922(g)(1)
55
(count V). At arraignment, Bounds entered not guilty pleas to all
56
four counts.
57
On the morning of trial, Bounds opted to change his plea to
58
guilty as to counts I and V in exchange for the government's
59
promise to dismiss the remaining counts at sentencing. Before
60
sentencing, Bounds moved to withdraw his guilty plea, asserting
61
that he was unaware of the consequences of that plea when he
62
entered it. The district court denied that motion and sentenced
63
Bounds to 300 months' imprisonment. On appeal of that ruling to
64
this court, we ordered that the judgment of conviction be vacated
65
and that the matter be remanded to the district court for further
66
proceedings. United States v. Bounds, 943 F.2d 541 (5th Cir.
67
1991).
68
Bounds was rearraigned on counts I, II, III and V and entered
69
not guilty pleas to each count. After a two-day trial, he moved
70
for acquittal pursuant to Fed. R. Crim. P. 29 and for a mistrial.
71
The district court denied both motions, and the jury later returned
72
a guilty verdict against Bounds as to all four counts. After his
73
motions for arrest of judgment, acquittal, and new trial were
74
similarly denied, Bounds filed a timely notice of appeal.
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After a sentencing hearing, Bounds was sentenced to 240
76
months' imprisonment on count I, 240 months' imprisonment on count
77
II (132 months of which was to run consecutively with count I and
78
the remainder of which was to run concurrently with count I), 60
3

79
months' imprisonment on count III (to run consecutively with counts
80
I and II), and 60 months' imprisonment on count V (to run concur-
81
rently with his other sentences). The total sentence amounts to
82
432 months. The court also imposed a three-year term of supervised
83
release as well as the mandatory $50 per count assessment.
84
Bounds appeals his conviction on numerous grounds under
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No. 92-4363. In addition, in No. 92-4747 Bounds appeals the
86
district court's denial of his motion to correct the trial
87
transcript.
88
III.
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We affirm the district court in No. 92-4747. At trial, the
90
district court apparently allowed Deborah Richardson's counsel to
91
sit near her while she testified. Bounds filed a motion to correct
92
the trial transcript to reflect that Richardson conferred with
93
counsel during her testimony. Because of our conclusion infra, we
94
do not consider the alleged error or omission in the transcript to
95
be material. In deciding Bounds's appeal in No. 92-4363, we will
96
assume that Richardson did confer with counsel during her testi-
97
mony. Consequently, we see no need to correct the transcript. We
98
express no opinion as to the propriety of the district court's
99
actions in a circumstance where the error in the transcript might
100
be material.
101
IV.
102
We now address the first of nine points of error Bounds raises
4

103
in No. 92-4363. Bounds initially pleaded guilty to two of the four
104
counts contained in the indictment; the district court's judgment
105
dismissed the other two counts pursuant to the plea bargain. We
106
reversed this judgment because the district judge failed properly
107
to apprise Bounds of the period of supervised release he could
108
receive. In an apparent blunder, the government failed to either
109
reindict Bounds or move for reinstatement of the dismissed charges.
110
At trial, Bounds moved for a mistrial, alleging that the
111
district court had no jurisdiction over two of the four counts.
112
Although Bounds's counsel admits he knew of the mistake earlier, he
113
did not raise the issue before trial because he wanted to create a
114
double jeopardy issue. Bounds's motion nevertheless was timely.
115
Fed. R. Crim. P. 12(b)(2). We express no opinion regarding the
116
double jeopardy implications of these circumstances.
117
Our research does not reveal a previous case involving this
118
factual scenario. Bounds relies upon cases that hold that
119
reindicting the defendant or reinstating dismissed charges does not
120
violate the double jeopardy clause where a plea bargain was
121
reversed on appeal. E.g., Harrington v. United States, 444 F.2d
122
1190, 1193 (5th Cir. 1971). These cases do suggest that the
123
government ordinarily should reindict or move to reinstate the
124
dismissed charges. We will assume, without deciding, that the
government had to move to reinstate the charges.1
125
1 We need not address the government's suggestion that reversal of a
conviction obtained via a plea bargain automatically reinstates charges
dismissed pursuant to that plea bargain. We suggest that the government could
place a provision to this effect in the plea bargain itself.
5

126
Bounds alleges that the government's error violated his Fifth
127
Amendment right to indictment by a grand jury. Bounds was legally
128
indicted, however, on the dismissed charges and alleges no
129
prejudice from the government's error. Bounds knew that the
130
government intended to try him on all four counts at trial as he
131
was rearraigned on all counts after we reversed his first convic-
132
tion. Indeed, Bounds' counsel admits he knew of the government's
133
error at the time of rearraignment. Bounds identifies no illicit
134
motive for the government's failure and can neither identify any
135
harm to the preparation of his defense nor any unfair surprise he
136
suffered at trial.
137
We hold that in the unique circumstances of this case, the
138
government's failure to move to reinstate the dismissed charges was
139
harmless error. See United States v. Mechanik, 475 U.S. 66 (1986);
140
Fed. R. Crim. P. 52(a). In Mechanik, the Supreme Court held that
141
prosecutorial misconduct which violated the defendant's Fifth
142
Amendment right to indictment by grand jury was harmless error. We
143
find the present case an even stronger occasion to apply harmless
144
error analysis. Here, unlike Mechanik, Bounds can identify no
145
prejudice resulting from the government's actions. In addition,
146
the violation in Mechanik involved misconduct by the prosecutor
147
before the grand jury. Here, Bounds does not claim any misconduct
148
on the government's part. The prosecution did not attempt to gain
149
any unfair advantage; it made a mistake. We caution the government
150
that a case may well arise where the failure to reinstate dismissed
151
charges does prejudice the defendant. In this case, we find no
6

152
prejudice to Bounds and conclude any error was harmless.
153
V.
154
Next, Bounds argues for reversal based upon the government's
155
reference to a polygraph examination. During the examination of
156
Deborah Richardson, the following exchange took place:
157
Q. Have you ever taken a lie detector test in your life?
158
A. Yes.
159
Q. At whose request?
160
A. Joe Bounds.
161
Q. What was the result of the test?
162
A. I passed.
163
Mr. Focke: Your Honor.
164
A. I passed.
165
Mr. Focke: I'm going to object.
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The Court: Don't Answer.
167
Mr. Focke: Your Honor, Polygraph Examination.
168
The Court: Excuse me, don't. Ladies and gentlemen, If
169
y'all will step out just a second.
170
The court never ruled on the objection. The context of the line of
171
questioning the government was pursuing demonstrates that the
172
prosecutor was attempting to elicit testimony from Richardson that
173
Bounds beat her as a "result" of the polygraph examination. After
174
the conference, the government elicited precisely that testimony.
175
Bounds never requested a curative instruction, and none was
176
otherwise given.
177
Bounds essentially argues for a per se rule of reversal at the
7

178
mere mention the use of a polygraph. We previously have rejected
179
such a rule. See United States v. Martino, 648 F.2d 367, 391 (5th
180
Cir. June 1981), vacated in part on other grounds, 650 F.2d 651
181
(5th Cir. July 1981) (per curiam), cert. denied, 456 U.S. 949
182
(1982) (any prejudice caused by reference to polygraph cured by
183
instruction). Bounds did not ask for a curative instruction.
184
Consequently, we review only for plain error. Such an error must
185
be so egregious that a miscarriage of justice has occurred. United
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States v. Maceo, 947 F.2d 1191, 1198 (5th Cir. 1991). We conclude
187
that under the facts and circumstances of the instant case, the
188
mere reference to a polygraph examination does not amount to plain
error.2
189
190
VI.
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Bounds next claims that the trial court erred by admitting
192
evidence that his codefendant, Deborah Richardson had pleaded
193
guilty. This contention has no merit. Bounds did not object at
194
trial or request a limiting instruction, so we review for plain
195
error. We do not have to reach the plain error issue, however, as
196
we find no merit in Bounds's claim. The government questioned
2 We remind the government of the well-established rule of inadmissi-
bility of polygraph evidence in this circuit. E.g., United States v. Clark,
598 F.2d 994, 995 (5th Cir. 1979), cert. denied, 449 U.S. 1128 (1981). Other
circuits have begun to erode the rule of per se inadmissibility. E.g., United
States v. Piccinonna, 885 F.2d 1529, 1535-36 (11th Cir. 1989) (en banc). The
rule in this circuit cannot change, however, unless the court chooses to do so
en banc. We caution that reference to a polygraph by counsel may warrant
reversal in some cases where opposing counsel properly objects and requests a
curative instruction. Our Martino holding extends only to cases where a
witness makes reference to a polygraph examination without apparent encourage-
ment of counsel. We may view the case differently where counsel has made the
reference. Because of our holding, we leave this more difficult issue for
another day.
8

197
Richardson only in anticipation of impeachment on cross examina-
198
tion, which we have previously approved. See United States v.
199
Valley, 928 F.2d 130, 133 (5th Cir. 1991); United States v.
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Marroquin, 885 F.2d 1240, 1246-47 (5th Cir. 1989), cert. denied,
201
494 U.S. 1079 (1990); United States v. Borchardt, 698 F.2d 697, 701
202
(5th Cir. 1983).
203
Moreover, Richardson's testimony only established that she had
204
previously been convicted of conspiracy to manufacture methamphet-
205
amine. Her testimony mentions nothing about a guilty plea or that
206
the conviction had to do with the events giving rise to Bounds's
207
trial. Because the government never even made reference to
208
Richardson's pleading guilty, we conclude that no error occurred.
209
VII.
210
Bounds next objects that the court's instruction to the jury
211
regarding the definition of the term "firearm" improperly expanded
212
the indictment. Four firearms were relevant in the case, but only
213
two of these were relevant to count V. The court gave the legal
214
definition of "firearm" and proceeded to instruct the jury that all
215
four firearms introduced as evidence were "firearms" within the
216
scope of that definition. In referring to count V, the court
217
stated that the term "firearm" was defined above. Bounds contends
218
that this confused the jury, as count V involved only two of the
219
four guns.
220
Again, because Bounds did not object to the jury instructions
221
at trial, we review for plain error. See Fed. R. Crim. P. 30.
9

222
Again, we conclude that no plain error occurred. The court's
223
instruction refers back to the definition of the term firearm, not
224
the instruction that all four guns constituted firearms within the
225
meaning of that definition. In addition, the jury had access to
226
the indictment at all times during deliberations and could read for
227
itself what the indictment charged.
228
VIII.
229
As his next point of error, Bounds alleges we should reverse
230
his conviction because Deborah Richardson's counsel was allowed to
231
sit and confer with her during her testimony. Apparently, the
232
district court allowed Richardson's counsel to sit next to her on
233
the stand while she was testifying. As we indicated above, we will
234
assume arguendo, although the record does not so reflect, that
235
Richardson did confer with her counsel during questioning. During
236
the examination, Richardson's counsel did ask Bounds's attorney to
237
repeat a question and did ask the judge which page of a document
238
Richardson should read. Bounds alleges that this violated his
239
right to confrontation.
240
Once again, Bounds failed to object at trial, so we review for
241
plain error. Bounds does not suggest how his ability to cross-
242
examine Richardson was diminished, nor does he suggest any
243
testimony he was unable to elicit as a result of the alleged error.
244
In fact, Bounds's brief describes how he successfully impeached
245
Richardson on cross-examination.
246
We do not think this case implicates the confrontation clause.
10

247
It appears Bounds's right to confrontation was not harmed in the
248
least. Not only did Bounds have the opportunity to cross-examine
249
Richardson, it appears to have been effective. Although we are
250
troubled by the district court's actions and strongly disapprove of
251
allowing counsel to sit next to a witness while she testifies, we
252
hold that no plain error occurred, as Bounds has not identified any
253
prejudice from the district court's error.
254
IX.
255
Bounds next alleges that the jury should have determined the
256
amount of drugs involved in the crime. He contends the amount of
257
drugs constitutes an element of the crime, as differing amounts of
258
drugs subject a defendant to differing penalties. We find no merit
259
in this argument, as we have previously held that the quantity of
260
drugs does not constitute an element of the crime; rather quantity
261
is a fact to consider in sentencing. United States v. Royal, 972
262
F.2d 643, 650 (5th Cir. 1992) (citing United States v. Lokey, 945
263
F.2d 825 (5th Cir. 1991)), petition for cert. filed, 61 U.S.L.W.
264
3403 (Nov. 16, 1992) (No. 92-855). At least four other circuits
265
have rejected this argument. See United States v. Lam Kwong-Wah,
266
966 F.2d 682, 685 (D.C. Cir.), cert. denied, 113 S. Ct. 287 (1992).
267
X.
268
Next, Bounds alleges that the district court erred by not
269
allowing him to have counsel present during his pre-sentence
270
interview. Once again, we have previously rejected this argument,
11

271
reasoning that no right to counsel attaches at a pre-sentence
272
interview, as the interview is not a critical stage of the
273
proceedings. United States v. Woods, 907 F.2d 1540, 1543 (5th Cir.
274
1990), cert. denied, 111 S. Ct. 792 (1991); United States v.
275
Kinsey, 917 F.2d 181 (5th Cir. 1990); Brown v. Butler, 811 F.2d 938
276
(5th Cir. 1987). Consequently, Bounds's argument has no merit.
277
XI.
278
Bounds next contends that the district court erred in
279
sentencing him to consecutive terms as to counts I and II, as
280
count I constitutes an indispensable step to count II. Count I
281
charges Bounds with conspiracy to manufacture phenylacetone and
282
amphetamine, while count II charges Bounds with manufacturing or
283
attempting to manufacture phenylacetone and methamphetamine.
284
Bounds relies upon United States v. Forester, 836 F.2d 856
285
(5th Cir. 1988), where we held that the defendant could not be
286
sentenced to consecutive terms for attempting to manufacture
287
methamphetamine and for possessing a chemical needed to produce
288
methamphetamine. In Forester, we were careful to point out the
289
unique circumstances of the case. We noted that the defendant
290
produced the chemical from other chemicals as one step in the
291
manufacturing process. Possession of the chemical, then, resulted
292
only from attempts to manufacture the drug. We noted that the case
293
may well have been different, for example, had the defendant
294
acquired the chemical from others rather than producing it on his
295
own.
12

296
We limit Forester to its facts and instead follow United
297
States v. Kleinbreil, 966 F.2d 945, 952 (5th Cir. 1992), where we
298
held that a court may impose consecutive sentences for a drug
299
offense and conspiracy to commit a drug offense under U.S.S.G.
300
� 5G1.2(c). Agreeing to manufacture amphetamines is not an
301
indispensable step in manufacturing them; Bounds could have
302
manufactured them on his own without agreeing with anyone else.
303
See United States v. Miley, No. 92-4194 (5th Cir. Dec. 23, 1992)
304
(unpublished). As a result, we conclude that count I does not
305
constitute an indispensable step to count II.
306
XII.
307
Finally, Bounds alleges that the district court erred in
308
calculating Bounds's sentence by relying upon the theoretical
309
amount of amphetamine producible rather than upon the amount of
310
phenylacetone producible. The district court used the drug
311
equivalency table to compute Bounds's sentence based upon the
312
theoretical amount of amphetamine producible with the amount of
313
chemicals recovered. Bounds contends that using the equivalency
314
for phenylacetone would produce a lower offense level. The record
315
does not appear to contain any evidence of how much phenylacetone
316
Bounds could have produced with the chemicals. As a result, we
cannot make a meaningful harmless error analysis.3
317
3 The government suggests in its brief that the error was harmless
because 18 kilograms of amphetamine would produce only a two-level difference
from 18 kilograms of phenylacetone. Leaving aside the fact that a different
offense level may have led the district court to impose a different sentence,
the government assumes that an equivalent amount of phenylacetone could have
been produced from the chemicals. Given that the two drugs have different
13

318
Bounds argues that where a general verdict makes it unclear
319
what he was convicted of, and where the two possible offenses may
320
result in two potentially different offense levels, the district
321
court must choose the lower offense level. Bounds relies upon
322
United States v. Owens, 904 F.2d 411 (8th Cir. 1990), which
323
involved a conviction for conspiracy to distribute and attempt to
324
manufacture "methamphetamine/amphetamine." On appeal, the court
325
determined that the general verdict made it impossible to determine
326
which drug was involved in the conviction. For sentencing
327
purposes, the court decided that the district court must use the
328
violation carrying the lower offense level or must use a special
329
verdict form.
330
The Eighth Circuit distinguished Owens in a later case, as the
331
indictment in Owens charged the defendants with an offense
332
involving one drug or another drug, while the later case concerned
333
an indictment involving one drug and another drug. United States
334
v. Watts, 950 F.2d 508 (8th Cir. 1991), cert. denied, 112 S. Ct.
335
1276 (1992). Here, Bounds's indictment says "phenylacetone and
336
amphetamine." In the jury instructions, however, the district
337
judge sometimes says "phenylacetone or amphetamine." Given the
338
jury instructions, we conclude that this case looks more like
339
Owens: We do not really know which drug (or both) the jury
340
considered in deciding on conviction. In this circuit, moreover,
molecular structures, basic chemistry tends to suggest that the respective
amounts producible from a given quantity of precursor chemicals would be
different. Without any expert testimony in the record on the issue, we
certainly cannot assume the same amount of both drugs could be produced.
14

341
even where the indictment says "and," the government, to sustain
342
its burden, need only prove that one or the other drug was
343
produced. See United States v. McCann, 465 F.2d 147, 162 (5th Cir.
344
1972). Given this rule, we will never know upon which of two
345
drugs, or both, the jury based its conviction, unless the court
346
uses a special verdict form or the government charges the defendant
347
with separate counts for each drug.
348
Because we cannot tell which drug the jury focused upon in
349
convicting Bounds, we remand for resentencing. On remand, the
350
district court could find that the producible amount of
351
phenylacetone yields the same offense level as 18 kilograms of
352
amphetamine. If that is the case, or if the equivalency table
353
yields a higher offense level for the producible quantity of
354
phenylacetone, the court may simply reimpose the original sentence.
355
If, however, the equivalency table yields a lower offense level for
356
phenylacetone, the district court must sentence Bounds using the
357
lower offense level. We express no opinion as to whether the
358
district court must impose a lower sentence on remand if the
359
original sentence were to come within the range allowed by the
360
lower offense level.
361
XIII.
362
We AFFIRM Bounds's conviction on all counts. We VACATE
363
Bounds's sentence and remand for resentencing in accordance with
364
this opinion.
15

365
REAVLEY, Circuit Judge, concurring:
366
Instead of a formal motion by the United States Attorney to
367
reinstate the second and third counts, the government attorney and
368
defense attorney accepted Judge Walters' statement that the
369
reversal of his judgment put the court and parties back where they
370
were prior to the plea and dismissal of the two counts, i.e. back
371
with the four counts. Bounds was rearraigned on the four counts
372
and pleaded to each of them. Trial proceeded without objection.
373
Counts two and three were reinstated by acceptance of all attorneys
374
and the court. There was no error. If the counts were not somehow
375
reinstated, I fail to see the harmlessness.
376
I concur in the judgment and the opinion except for part IV.
16