Rule 1006 Cannot Be Used To “Backfill” Missing Drug Quantities With Averages: Fifth Circuit Polices Summary Charts, Narrows Concealment Laundering, and Applies Harmless Error to CCE Indictments

Introduction

United States v. Roberts is a consolidated Fifth Circuit decision arising from a multi-state marijuana distribution enterprise that moved cannabis products from legalized-source states (primarily California and Oregon) to buyers across twenty-one other states. The five appellants—Eric Roberts (the organizer), and drivers Ronald McGuire, Lowell Sargent, Christopher Shaun Ragle, and Philip Lala—were tried together. Eight co-defendants pleaded guilty and testified for the government. The jury convicted all five of drug conspiracy (21 U.S.C. § 846) and conspiracy to commit money laundering (18 U.S.C. § 1956(h)); Roberts was also convicted of operating a continuing criminal enterprise (CCE) (21 U.S.C. § 848) and a 924(c) firearm count; McGuire was acquitted on his 924(c) count.

On appeal, the defendants levied nine issues, including a pivotal challenge to a government Rule 1006 summary spreadsheet (Exhibit 190) that extrapolated unknown drug quantities by substituting a single “average” load weight across “trips” for which the government lacked reliable figures. The opinion addresses: (1) the admissibility and limits of Rule 1006 summaries; (2) sufficiency of the evidence and sentencing drug-quantity calculations; (3) the sufficiency of a CCE indictment that failed to specify the required predicate violations; (4) constructive amendment; (5) the line between concealment and promotional money laundering; (6) Alleyne error on a § 924(c) mandatory minimum; (7) Rule 36 clerical corrections to judgments and PSRs; and (8) venue.

Summary of the Judgment

The Fifth Circuit’s core outcomes can be grouped as follows:

• Rule 1006 summary chart: The court held it was plain error to admit a spreadsheet that used a global “average” load to fill in unknown drug quantities for individual defendants without a reliable foundation and with math errors. The court emphasized that Rule 1006 cannot be used to “assume” facts the government must prove beyond a reasonable doubt.
• Drug conspiracy convictions: Affirmed across the board. However:
  • McGuire: Sentence vacated and remanded for resentencing under the “default” marijuana penalty provision (21 U.S.C. § 841(b)(1)(D)) because the Rule 1006 error tainted the finding of the 1,000 kg threshold.
  • Sargent: Conviction affirmed. The opinion contains some tension: Part II suggests resentencing under § 841(b)(1)(D) due to the same Rule 1006 error, but the concluding decretal paragraph states his sentence is affirmed. The court notes foreseeability, and his counsel’s concession at sentencing, as bases to uphold the district court’s drug-quantity attribution; yet a footnote elsewhere suggests resentencing would still follow from application of the default penalty. This appears to be an internal inconsistency likely to be clarified by the court or on remand.
  • Lala: Sufficiency challenge rejected; sentence affirmed (any error harmless given explicit variance rationale).
• Money laundering: The government’s concealment theory (18 U.S.C. § 1956(a)(1)(B)(i)) fails under Cuellar—mere secrecy or use of cash does not prove a design to conceal. But the promotional theory (18 U.S.C. § 1956(a)(1)(A)(i)) is amply supported; conspiracy convictions stand on that basis. The court remands to correct judgments and PSRs that incorrectly reflect international laundering theories.
• CCE indictment: Although the indictment failed to specify the three required predicate drug violations (as required by Richardson), the error was harmless; the CCE conviction stands.
• § 924(c): Alleyne error acknowledged (short-barrel fact not found by jury); Roberts’s firearm sentence vacated and remanded.
• Clerical errors: Remand to correct judgments and PSRs to list only domestic promotional money laundering under § 1956(a)(1)(A)(i) and to remove references to the international prongs.
• Venue: Affirmed under settled conspiracy venue principles.

Analysis

Precedents Cited and How They Shaped the Decision

• Rule 1006 and summary evidence:
  • United States v. Spalding; United States v. Bishop; United States v. Smyth—cautioning that charts “elevated” to evidence must omit argumentative matter and cannot be used to prove unproven elements.
  • United States v. Hart; United States v. Taylor—Rule 1006 cannot be a vehicle to assume operative facts the government must prove.
  • Federal Rules of Evidence 1006, 102, 103—accuracy is critical, specific objections are required, and evidentiary rules must serve truth and fairness.
• Plain-error and preservation:
  • Puckett v. United States; United States v. Olano—four-prong plain-error standard.
  • United States v. Portillo; United States v. Love; Federal Rule of Evidence 103—co-defendant objections can preserve issues, but only if they put the court on notice of the specific ground.
• Drug-quantity determinations at sentencing:
  • United States v. Gentry; United States v. Dinh—courts may estimate quantity if the estimate has sufficient indicia of reliability.
  • United States v. Rudolph; United States v. Melendez; United States v. Alford—PSRs can be relied upon only if the underlying facts have an adequate evidentiary basis and are sufficiently reliable.
  • U.S.S.G. § 1B1.3; § 2D1.1 and commentary—relevant conduct and approximations.
• Money laundering:
  • Cuellar v. United States—“design to conceal” requires purpose, not merely secretive transportation.
  • United States v. Brown—contrasts concealment with structured deposits intended to disguise nature/source; affirms promotional laundering where proceeds fund further drug purchases.
  • United States v. Puig-Infante; United States v. Lozano—what counts as a “financial transaction” and “disposition” under § 1956; cash given to another suffices.
  • United States v. Stanford; United States v. Trejo—specific intent to promote can be shown via awareness of the enterprise and pay for conspirators’ roles.
• CCE indictment sufficiency:
  • Richardson v. United States—jury must agree on each of the predicate violations; each predicate is an element.
  • Russell v. United States; Fed. R. Crim. P. 7(c)(1)—indictments must state essential elements and provide fair notice.
  • United States v. Dentler; United States v. Robinson—harmless-error framework for defective indictments (notice and grand jury probable cause).
• Alleyne and § 924(c): Alleyne v. United States—any fact increasing a mandatory minimum must be found by a jury beyond a reasonable doubt.
• Venue in conspiracy: United States v. Romans; United States v. Thomas; 18 U.S.C. § 3237(a)—venue may lie in any district where the offense was begun, continued, or completed, including travel by co-conspirators.

Legal Reasoning

1) Rule 1006: When Summary Charts Become “Evidence,” Accuracy and Methodology Matter

The government’s Exhibit 190—a spreadsheet built from Signal messages—became a centerpiece for drug-quantity proof. The agent derived a single “average” load weight (506 lbs.) from “all drivers,” then multiplied that average by the number of “trips” he attributed to each defendant (often without explaining the trip count or driver attribution), and in places replaced known weights with the average. The spreadsheet contained math errors, omitted known weights from the averaging pool, double-counted pickups and deliveries, and candidly characterized key estimates as “guesstimates.”

The court held that this was error under Rule 1006. A summary chart may “prove the content” of voluminous records only if it accurately summarizes competent evidence already before the jury. It cannot “assume” or manufacture missing facts or fill gaps with speculative averages. Because Roberts’s in-trial objection challenged the agent’s review scope rather than the chart’s mathematical accuracy, McGuire’s and Sargent’s arguments were reviewed for plain error. Even under that demanding standard, the error was “clear and obvious” given the chart’s unreliability and its function as substantive evidence on the >1,000 kg threshold. The court affirmed the drug-conspiracy convictions but concluded there was a reasonable probability that the erroneous chart affected the drug-quantity findings driving mandatory minima—warranting resentencing under § 841(b)(1)(D) for at least McGuire (and, per analysis text, arguably Sargent; see “Note on an internal inconsistency” below).

2) Sufficiency of the Evidence on the Drug Conspiracy (Lala)

On sufficiency review, the appellate court considers the record as the jury saw it—even if portions were admitted in error. Lala’s attempt to dismantle Exhibit 190’s math did not defeat sufficiency because the jury heard counter-arguments and chose to credit the government’s evidence. Applying deferential review and resolving credibility issues in favor of the verdict, the panel held that a rational juror could find Lala individually responsible for, or foreseeably involved in, a conspiracy exceeding 1,000 kg.

3) Sentencing Drug-Quantity Findings and PSR Reliance

• McGuire: The district court adopted the PSR’s drug-quantity attribution, which itself adopted Exhibit 190’s extrapolations (5,060 kg). Because Exhibit 190 lacked sufficient indicia of reliability and supplanted known values with speculative averages, the adoption was clearly erroneous. The sentence was vacated and remanded for fresh findings.
• Sargent: Although the same foundational error exists, defense counsel expressly conceded foreseeability of the overall conspiracy quantities and used that posture to argue for a lower personal tally. The district court’s reliance on foreseeability and the PSR was therefore affirmed. At the same time, a footnote suggests the statutory minimum falls away if the default penalty applies—creating tension with the decretal paragraph (see note below).
• Lala: Any drug-quantity error was harmless because the district court stated it would impose the same sentence irrespective of the precise drug weight and explained its reasons (variance based on safety valve, role, acceptance, history, service, and disparity avoidance).

4) CCE: Defective Indictment, But Harmless

CCE (21 U.S.C. § 848) requires a continuing series of at least three felony drug violations, with supervisory control over five or more persons, and substantial income. Under Richardson, the predicates are elements and require unanimity. The indictment here identified the conspiracy count as a predicate and vaguely referenced a “continuing series,” but failed to enumerate two more specific predicate violations.

The court agreed the omission was error, but applying Dentler/Robinson harmless-error review, deemed it non-prejudicial. While specificity is preferable—and better practice is to list or incorporate the predicates—the court found (i) Roberts had sufficient functional notice by trial’s end of the government’s theory (substantive § 841 violation and § 843(b) use of a communication facility), and (ii) any rational grand jury presented with the trial evidence would have found probable cause to indict with properly specified predicates. The CCE conviction therefore stands.

5) Constructive Amendment

Roberts also claimed that the jury instructions constructively amended the indictment by providing predicates beyond the conspiracy language. Reviewed for plain error, the court found no material broadening: the instructions did not alter the essential offense charged (CCE rooted in the marijuana-trafficking enterprise) but merely specified legally required elements consistent with the proof. No reversible variance or prejudice was shown.

6) Money Laundering: Concealment Falls Away; Promotion Sustains the Convictions

Concealment theory (§ 1956(a)(1)(B)(i)) failed under Cuellar: using cash, avoiding banks, hiding money during transport, and other secretive “how” tactics are not enough to show a transaction’s “design” or purpose was to conceal the nature, source, or ownership of proceeds. By contrast, promotional laundering (§ 1956(a)(1)(A)(i)) was supported by substantial evidence. The drivers and Roberts knowingly engaged in “financial transactions”—which include giving cash proceeds to another person (a “disposition”)—with the intent to promote continued drug trafficking by covering operating costs, paying drivers, and funding new purchases. Conspiracy to commit promotional laundering was therefore established for McGuire, Roberts, Ragle, and Sargent. The panel ordered clerical corrections so judgments and PSRs reflect only the domestic promotional theory (and not the international prongs).

7) Alleyne Error on § 924(c)

Roberts’s firearm sentence was vacated because the short-barrel fact, which elevates the mandatory minimum under § 924(c), was not found by the jury as required by Alleyne. The case returns for resentencing on the firearm count.

8) Rule 36 Clerical Corrections

The written judgments and PSRs for several defendants incorrectly referenced the international laundering prongs (§ 1956(a)(2)(A) and (a)(2)(B)(i)). The panel remanded under Rule 36 to correct these to the domestic promotional prong (§ 1956(a)(1)(A)(i)) and, per the court’s concealment analysis, to ensure only the promotional theory underlies the § 1956(h) conspiracy.

9) Venue

Venue in conspiracy cases is expansive. Travel or proceeds moving through the Eastern District of Texas sufficed. The panel affirmed venue under settled Fifth Circuit law.

Impact

A. Evidence and Trial Practice: Guardrails on Rule 1006

• Rule 1006 charts must truly summarize voluminous records; they cannot serve as “proof by assumption.” Using a global average to fill unknowns, especially where the average is poorly explained, arithmetically unsound, or selectively derived, is improper.
• The opinion’s statistical discussion (mean, median, standard deviation) signals that courts will scrutinize methodology. If variability is high, extrapolating a single average to many unknown events is speculative.
• Prosecutors should be prepared to:
  • Show how “trips” are defined and tied to specific drivers;
  • Explain why certain data are included/excluded from averages;
  • Prefer medians or driver-specific metrics where distributions are skewed;
  • Avoid replacing known values with imputed averages.
• Defense counsel should consider pretrial motions in limine and rigorous voir dire of summary witnesses to prevent “argumentative” charts from becoming substantive evidence. Object specifically to methodological flaws and math errors to preserve non-plain-error review.

B. Sentencing: Reliability of PSR-Embedded Summaries

• PSRs do not sanitize unreliable charts. A sentencing court may approximate, but approximations must carry “sufficient indicia of reliability.” Where the only foundation is a flawed Rule 1006 chart, the drug-quantity finding is vulnerable.
• Foreseeability remains potent in conspiracy sentencing. Sargent’s sentence was sustained, in part, because counsel conceded foreseeability of overall weights—a cautionary tale about how concessions can shape outcomes.
• Expect more robust record-making at sentencing on drug-quantity methodology, including whether to use means vs. medians and how to handle outliers and partial data.

C. Money Laundering Charging and Proof

• Concealment laundering remains narrow post-Cuellar. Secretive transport or use of cash is “how,” not “why.” Prosecutors should marshal evidence that a transaction’s purpose was to conceal (e.g., layering, structuring, fictitious entities, commingling to disguise source).
• Promotional laundering is broadly available. Payment of drivers or suppliers with drug proceeds, or giving proceeds to organizers for operational costs, will often suffice, especially in a § 1956(h) conspiracy where the agreement, not completion, is the gravamen.
• Scrupulous drafting of judgments and PSRs matters. Mislabeling domestic conspiracies as international can have collateral consequences; Rule 36 provides a ready fix.

D. CCE Indictments

• Best practice: enumerate or incorporate by reference the three specific predicate violations in the CCE count. Although this panel applied harmless error, the omission is risky and invites satellite litigation.
• Defense strategy: where predicates are unspecified, pursue dismissal or, at minimum, develop the record early for notice-based prejudice and grand-jury probable-cause issues.

E. Preservation in Multi-Defendant Trials

• A co-defendant’s objection preserves yours only if it alerts the court to the specific ground. Citing “Rule 1006” generally is not enough; articulate the exact flaw (e.g., math errors, improper extrapolation, failure to tie trips to defendants).

Complex Concepts Simplified

• Rule 1006 Summary Chart: A tool to present, in distilled form, voluminous records already in evidence. It cannot invent or assume facts and must accurately reflect the underlying materials.
• Plain Error: An appellate standard for unpreserved issues. The appellant must show an obvious error that affected substantial rights and seriously impaired the fairness or integrity of proceedings.
• Mean vs. Median vs. Standard Deviation:
  • Mean (average): Sum divided by count; sensitive to outliers.
  • Median: Middle value; more stable with skewed data.
  • Standard Deviation: Measures spread; a large value means data vary widely, making one-size averages unreliable for prediction.
• Concealment vs. Promotional Money Laundering:
  • Concealment (§ 1956(a)(1)(B)(i)): Transaction’s purpose is to hide the nature/source/ownership of funds (e.g., layering/structuring to avoid detection).
  • Promotional (§ 1956(a)(1)(A)(i)): Transaction intends to further the criminal activity (e.g., paying couriers, buying more drugs).
• CCE Predicates: A CCE conviction requires at least three separate felony drug violations. Under Richardson, jurors must agree on the specific violations; indictments should spell them out or incorporate them clearly.
• Alleyne Rule: Any fact that increases a mandatory minimum (like a short barrel) is an element for the jury, not just the judge at sentencing.
• Rule 36 Clerical Errors: Courts can fix typos or mismatched statutory citations in judgments and PSRs; the PSR is part of the “record” for these purposes.

Note on an Internal Inconsistency

The opinion’s body suggests that both McGuire and Sargent should be resentenced under the default marijuana penalty (§ 841(b)(1)(D)) due to the Rule 1006 error. Yet the concluding decretal paragraph affirms Sargent’s sentence. A footnote indicates that, notwithstanding the foreseeability analysis, the default penalty provision eliminates the mandatory minimum otherwise applicable—implying resentencing is in order. This inconsistency may be clerical and could be clarified by an errata or on remand. Practitioners should monitor the docket for a correcting order and treat the court’s specific remand instructions in the mandate as controlling.

Practical Guidance

• For prosecutors:
  • When using Rule 1006 charts, anchor every number to identified records. If you must estimate, justify the statistical method and explain variability, outliers, and driver-specific differences.
  • Charge CCE by listing or incorporating three definite predicate violations, and preview those predicates early to avoid notice challenges.
  • For concealment laundering, develop evidence of the “why” (design to conceal), not just the “how” (secrecy).
  • Audit judgments and PSRs for correct statutory subparts, especially in conspiracy-to-launder cases.
• For defense:
  • Object specifically to summary-chart math and methodology; propose alternative, less speculative calculations (e.g., medians, driver-specific means) and highlight high standard deviations.
  • At sentencing, challenge PSR reliance on flawed charts; insist on “sufficient indicia of reliability.” Consider expert testimony on statistical validity.
  • In laundering counts, attack concealment by invoking Cuellar; on promotion, contest “financial transaction” or “intent to promote,” especially where the record shows only possession or passive receipt.
  • In CCE cases, move to dismiss or for a bill of particulars if predicates are unclear; build the prejudice record.

Conclusion

United States v. Roberts advances three important propositions in the Fifth Circuit:

1. Rule 1006 is not a license to “backfill” missing elements. Summary charts that extrapolate unknown quantities with poorly explained averages and math errors are inadmissible. Courts will scrutinize methodology, and such errors can affect statutory thresholds, requiring resentencing.
2. Cuellar’s distinction between “how” and “why” remains decisive. Secrecy in cash handling does not equal concealment money laundering. By contrast, paying people and buying more drugs with drug proceeds easily sustains promotional laundering and, in a § 1956(h) conspiracy, does not require completion of each transaction.
3. While CCE indictments should specify predicates (they are elements under Richardson), defects can be harmless if there is no notice prejudice and the evidence overwhelmingly supports probable cause for the missing elements.

The opinion also reinforces Alleyne’s jury-finding requirement for facts that trigger mandatory minima, and it underscores the utility of Rule 36 to correct mis-cited laundering subparts in judgments and PSRs. Going forward, prosecutors should tighten the construction and explanation of summary evidence and money-laundering theories; defenders should rigorously press reliability and methodological challenges. The decision’s blend of evidentiary discipline, charging guidance, and laundering doctrine will shape narcotics and financial-crimes litigation across the circuit.

Case Disposition (as stated in the Court’s concluding section)

• McGuire: Convictions affirmed; drug-conspiracy sentence vacated; remanded for resentencing under § 841(b)(1)(D) and for clerical corrections.
• Lala: Conviction and sentence affirmed.
• Ragle: Conviction affirmed; remanded for clerical corrections.
• Sargent: Convictions and sentence affirmed; remanded for clerical corrections. (But see internal inconsistency note above regarding resentencing.)
• Roberts: Money-laundering and CCE convictions affirmed; venue affirmed; § 924(c) sentence vacated and remanded for resentencing; remanded for clerical corrections.