965 F.3d 933
8th Cir.2020Background
- In May 2017 Myers arrived in North Dakota and supplied heroin to Conor Volz and Mishaw Kramer; after several transactions both victims lost consciousness and Volz later died.
- Grand jury indicted Myers on: (Count One) conspiracy to distribute heroin; (Count Two) distribution resulting in death; and (Count Three) distribution.
- A jury convicted Myers on all counts; the district court applied enhancements (firearm possession and a four-level fentanyl-analogue marketing enhancement) producing a Guidelines range that led to concurrent lengthy prison terms.
- Myers appealed raising: ineffective-assistance claims, sufficiency of the evidence for Counts One and Two, erroneous admission of a co-conspirator statement, and improper application of the §2D1.1(b)(13) enhancement.
- The Eighth Circuit: declined to reach ineffective-assistance claims on direct appeal (no developed record), affirmed sufficiency of evidence on conspiracy and causation for death, held any error admitting coconspirator testimony harmless, and found the sentencing-enhancement error harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel (failure to strike juror / timely alert court to juror contacts) | Myers: counsel failed to strike biased juror and failed to notify court of juror contact, warranting relief | Government: claim is to be raised collaterally; no developed record to decide on direct appeal | Not reached on direct appeal; claim left for §2255 because district court did not develop a record and no plain miscarriage of justice shown |
| Sufficiency — Conspiracy (Count One) | Myers: evidence insufficient to prove he knowingly joined an agreement to distribute | Government: testimony showed multiple persons sold or brokered heroin for Myers and he directed sales, establishing a tacit agreement | Affirmed — reasonable jurors could infer an agreement from circumstantial testimony (multiple witnesses describing coordinated sales) |
| Sufficiency — Distribution resulting in death (Count Two: causation) | Myers: other substances (prior heroin, codeine) or absence of acryl fentanyl in sold heroin mean Government failed to prove causation | Government: tight chain of events, victim’s toxicology showing heroin and acryl fentanyl, witness testimony about immediate collapse support causation; other substances present at nonlethal levels | Affirmed — evidence supported that heroin Myers sold contained acryl fentanyl and combined with heroin caused Volz’s death; alternative causes not shown sufficient |
| Admission of co-conspirator statement (Rule 801(d)(2)(E)) | Myers: testimony that a Chicago contact would "send one of his guys" to sell drugs was inadmissible hearsay | Government: statement was a coconspirator admission in furtherance of the conspiracy | Even if erroneous, admission was harmless given multiple other witnesses linking Myers to the conspiracy; no reversal |
| Sentencing enhancement (§2D1.1(b)(13) fentanyl-analogue marketing) | Myers: enhancement improperly applied | Government: district court applied enhancement but conceded wrong version of Guidelines manual used; court stated same sentence would have been imposed regardless | Harmless error — Government conceded incorrect manual; district court said it would have imposed the same below-Guidelines sentence without the enhancement, so sentence affirmed |
Key Cases Cited
- United States v. Saguto, 929 F.3d 519 (discusses collateral nature of ineffective-assistance claims on direct appeal)
- United States v. Oliver, 950 F.3d 556 (declining to consider undeveloped ineffective-assistance claims on direct appeal)
- United States v. Hollingshed, 940 F.3d 410 (standard for reviewing sufficiency of the evidence)
- United States v. Davis, 867 F.3d 1021 (elements of conspiracy to distribute drugs)
- United States v. Hamilton, 929 F.3d 943 (circumstantial proof of tacit agreement in drug conspiracies)
- Burrage v. United States, 571 U.S. 204 (causation standards for drug-distribution death counts)
- United States v. Lewis, 895 F.3d 1004 (methods for proving causation in drug-death prosecutions)
- United States v. Seals, 915 F.3d 1203 (upholding causation where victim collapsed shortly after using defendant’s fentanyl/heroin mixture)
- United States v. Young, 753 F.3d 757 (deferential review of coconspirator-statements admitted at conspiracy trials)
- United States v. Iron Hawk, 612 F.3d 1031 (harmless-error analysis for evidentiary rulings)
- United States v. Cazares, 521 F.3d 991 (harmlessness where government offered substantial independent evidence)
- United States v. Sesay, 937 F.3d 1146 (standard of review for Guidelines interpretation and factual findings)
- United States v. Dace, 842 F.3d 1067 (harmlessness where district court indicates same sentence would have been imposed absent error)