Jury Instructions

United States v. Dustin McLellan (11th Cir. May 2020)

Evidence/Expert Testimony – An officer is not testifying as an expert when he testifies that firearms are often involved in drug activity where such lay opinion testimony is based on his professional experiences.

Evidence/Rule 403 – Evidence of drug distribution and possession is relevant in unlawful possession of firearm cases where the element of knowledge is in dispute.

Firearm Offenses/922(g) – An indictment’s failure to allege the knowledge element of 922(g) does not deprive the district court of its jurisdiction.

Jury Instructions – Failure to instruct the jury on knowledge element of 922(g) was plain error but did not substantially affect defendant’s rights where there was overwhelming evidence of his knowledge of his unlawful status, including a stipulation and the evidence, not introduced at trial but that would be introduced in a retrial, that he had spent years in prison on other crimes.

Dustin McLellan was convicted of being a felon in possession of a firearm under 18 U.S.C. 922(g)(1). He was sentenced to 15 years under the ACCA based on his prior convictions for first-degree burglary under Alabama law.

On appeal, McLellan raised several claims. First, he argued that the trial court improperly allowed an arresting officer to testify as an “expert” regarding the correlation between guns and drug activity and erred in allowing the officer to testify that McLellan was selling drugs based on finding a “sellable amount” of meth. The core of this argument was that the Government’s evidence essentially alleged that McLellan was involved in selling drugs, which he was not charged with.

The Court disagreed, first holding that the officer’s testimony did not require any scientific, technical, or specialized knowledge, but was rather “lay opinion testimony based on his professional experiences.” The Court distinguished this from situations such as testifying officers summarizing phone calls between drug traffickers, which typically involve officers interpreting otherwise unambiguous phone calls in order to “spoon feed” their interpretations to the jury.

The Court also held that it was not error under 403 to allow the officer to testify that the under-a-gram of meth found in the case was a “sellable amount,” essentially alleging that McLellan was a drug dealer. While McLellan was not on trial for drug crimes, the Court noted that, in cases where a defendant denies knowingly possessing a gun, “evidence of possession of illegal drugs is relevant in determining whether a defendant knowingly possessed a weapon found in close proximity to drugs.” In other words, “the connection between drug-dealing and firearm possession is an appropriate one to be drawn during a felon-in-possession case.”

The Court also held that the pre-Rehaif indictment’s failure to allege McLellan’s knowledge of his felon status did not deprive the court of its jurisdiction since defects in an indictment are not generally jurisdictional. The Court also held that the trial court’s failure to instruct the jury on McLellan’s knowledge, while plain error, did not prejudice McLellan since 1) he had stipulated to it, and 2) in a retrial, the government would be able to introduce McLellan’s criminal history, which would make it “inconceivable” that he did not know he was a felon.

Appeal from the Southern District of Alabama

Opinion by Boggs (by designation from the 6th Cir.), joined by Rosenbaum and E. Carnes

Click here to read the opinion.

United States v. Johnny Benjamin, Jr. (11th Cir. May 2020)

The Court affirmed the conviction of a doctor charged with manufacturing and distributing a controlled substance analogue resulting in a woman's overdose death. The Court affirmed his conviction on the death count based on expert testimony, co-defendant testimony, and circumstantial evidence, and the Court held that the district court had sufficiently instructed the jury on scienter based on the defendant's knowledge of the identity of the substance. Nor did the trial court err in declining to investigate juror misconduct based on finding a list of "Do's and Don'ts of Jury Deliberations" in the deliberation room.

Continue reading

United States v. Ionel Muresanu (7th Cir. March 2020)

The Court vacated the defendant's convictions for aggravated identity theft based on the trial court violating his Fifth Amendment right to be tried on offenses charged by the grand jury. The indictment against him was defective in alleging that he committed "attempted" aggravated identity theft, a non crime, and the district court erred in removing the "attempt" language from its jury instructions.

Continue reading

United States v. Wesley Scott Hamm (6th Cir. March 2020)

Drug Offenses/Elements – Sufficient evidence existed of a drug conspiracy, as opposed to a mere buyer-seller relationship, where the relationship was ongoing, the quantities involved were large, the transaction involved extensive planning, and the alleged seller taught the buyer how to mix the drugs for resale.

Drug Offenses/Death Counts – Sufficient evidence existed that the defendant’s drug distribution caused death where the defendant was part of a conspiracy to distribute carfentanil and the carfentanil’s combination with methamphetamine was the but-for cause of the victim’s overdose death.

Drug Offenses/Jury Instructions – A jury may not use a Pinkerton theory of liability to apply a death-or-injury sentencing enhancement under § 841(b)(1)(C).

Wesley Hamm, his wife, and his drug dealer, Shields, were indicted and charged with conspiracy to distribute controlled substances, including carfentanil, a substance “10,000 times stronger than morphine.” The three were charged after Hamm had purchased several grams of what he believed to be normal fentanyl from Shields and given some to another dealer, Myers, who in turn sold them to several other individuals who overdosed and, in some cases, died. Upon her arrest, Myers smuggled some of the substance into the jail, sold them to others who later overdosed, and ultimately committed suicide.

At trial, the jury convicted Hamm and Shields on conspiracy counts, two counts of distributing cafentanil, along with the sentencing enhancement for drug distribution resulting in death or serious bodily injury based on the overdoses discussed above.

On appeal, the Court first held that there was sufficient evidence of a conspiracy between Hamm, Shields, and Myers that rose above a mere “buyer-seller relationship” between Hamm and Shields. The Court noted that Hamm and Shields had an ongoing relationship, Hamm bought large quantities of substances from Shields, and Shields had previously taught Hamm how to mix the drugs for resale.

The Court also found there was sufficient evidence that the carfentanil that Hamm sold Shields was the but-for cause of the victim’s death. While the victim had also ingested methamphetamine before overdosing, experts for the government testified that the carfentanil made the combination deadly and, even without the meth, the carfentanil may have been enough on its own to cause death.

However, the Court found that the trial court committed reversible error by misstating the law in its jury instructions on the sentencing enhancement. The court had allowed the jury to apply the enhancement under the theory of Pinkerton liability, which allows members of a conspiracy to be held liable for foreseeable acts committed by other members.

However, the Court held on appeal, Pinkerton does not apply to death enhancements on substantive distribution counts. Rather, the death enhancement can only apply to defendants who were “part of the distribution chain” to the victim, as the Sixth Circuit held in United States v. Swiney, 203 F.3d 397 (6th. Cir. 2000). The Pinkerton theory of liability can be used to convict a defendant for substantive offenses related to the conspiracy, but it does not extend to allowing the jury to apply sentencing enhancements. The jury instructions alleging otherwise constitutes harmful, reversible error.

Appeal from the Eastern District of Kentucky

Opinion by Boggs, joined by Gibbons and Bush

Click here to read the opinion.

United States v. Michael Kimbrew (9th Cir. December 2019)

The Court found that there was sufficient evidence to convict the defendant for bribery based on evidence that he took money from an undercover agent to perform an official act, even though the defendant lacked the actual ability to exert the promised influence necessary to perform the official act. The Court explained that the Government does not have to prove that a bribery defendant actually has the ability to achieve the promised outcome since the crime of bribery is based on the agreement, not the outcome.

Continue reading

Published by

© 2020 The Federal Docket