United States v. Travis BroekerUnited States v. Travis Broeker
SHEPHERD, Circuit Judge.
Appellant Travis Broeker was indicted for distribution of fentanyl resulting in death, in violation of
I.
On February 28, 2018, Joseph Fedke found his roommate, T.Z., unconscious. After Fedke called 911, pаramedics administered Narcan, a medication used to reverse an opiate overdose, and transported T.Z. to the hospital. When questioned, T.Z. indicated
Following T.Z.‘s death, Detective Joe Percich with the St. Louis County Policе Department searched T.Z.‘s bedroom. At trial, Detective Percich testified that on T.Z.‘s nightstand, he found a round rubber ball which had been cut open, hollowed out, and filled with white powder. This rubber ball was accompanied by a straw that had been cut, and at one end of the straw, Detective Percich observed white residue or powder in the straw‘s interior. Additionally, Detective Percich searched a backpack lоcated in T.Z.‘s bedroom and found inside seven purple capsules containing an unknown powder and ten clear capsules containing a brown or tan unknown powder. Following the search of T.Z.‘s bedroom, Detective Percich interviewed Fedke, and at that time, Fedke gave Detective Percich the items that he had removed from T.Z.‘s bedroom (i.e., T.Z.‘s cell phone, as well as the half-clear, half-black capsules and the white pills). Detective Marcial Amaro with the St. Louis County Police Department also testified that after arriving onto the scene, Fedke relinquished three “black and white” capsules and five pills which were “white and oval shape.”
Christina Rauhauser, a forensic chemist for the St. Louis County Crime Lab, testified that the half-clear, half-black capsules removed by Fedke and then given to Detective Percich tеsted positive for the presence of fentanyl, as did the rubber ball and the white powder found inside the rubber ball. She further testified that the five white pills removed by Fedke disclosed the presence of lorazepam. Rauhauser then testified that the seven purple capsules containing an unknown powder and the ten clear capsules containing a brown or tan unknown powder were tested and did not contain а controlled substance. Rauhauser did not test the substance found on the straw. Fedke also testified that the seven purple capsules containing an unknown powder and the ten clear capsules containing a brown or tan unknown powder were his weight loss supplements, and, knowing what they were, he had not removed them from T.Z.‘s room. Further, Detective Percich testified that no electronic devices were recovered from T.Z.‘s bedroom, and Fedke testified that T.Z. did not have access to a vehicle between the time he returned from the hospital and the time he was pronounced dead.
After T.Z.‘s father provided the personal identification number (PIN) code to T.Z.‘s phone, Detective Josiah Merritt with the St. Louis County Police Department
On March 2, an undercover officer posing as “Carl” arrived at the designated meeting place to purchase fentanyl for himself and T.Z. However, Pamela Barton, not “Travis Perkey,” arrivеd. The undercover officer purchased a brown pill bottle containing approximately 20 half-clear, half-black capsules containing white powder from Barton before arresting her. A search of her vehicle revealed additional half-clear, half-black capsules containing white powder in her driver‘s side door. After “Carl” falsely told “Travis Perkey” that Barton had not arrived at the designated meeting рlace, “Travis Perkey” arranged to meet with the undercover officer to consummate the fentanyl transaction. Broeker arrived, and upon his arrival, officers arrested him. Broeker had in his possession the phone associated with the 0523 number. Text messages on this phone showed that the last text message exchanged between Broeker and T.Z. on February 28 was at 7:05 p.m., approximately 22 minutes before Fedke сalled 911 to report T.Z.‘s overdose. Additionally, Detectives Percich and Merritt interviewed Broeker, who waived his Miranda3 rights before admitting to selling fentanyl to T.Z. on the evening of February 28, identifying Pamela Barton as his girlfriend, and admitting to sending Barton to sell fentanyl to the undercover officer.
At trial, Rauhauser testified that she tested both the capsules contained in the brown pill bottle and the capsules found in the door of Barton‘s vehiclе. The tests revealed the presence of heroin and fentanyl in the capsules contained in the brown pill bottle and the presence of fentanyl in the capsules found in the vehicle‘s door. Dr. Gershom Norfleet, the Assistant Medical Examiner at the St. Louis County Medical Examiner‘s Officer, testified that following T.Z.‘s death, he reviewed T.Z.‘s medical records, conducted an examination of T.Z.‘s clothing, and conducted an extеrnal examination of T.Z.‘s body. He also collected samples of blood, urine, and vitreous fluid from T.Z.‘s body, which he then submitted to Dr. Sarah Riley, the director of the St. Louis University Forensic Toxicology Laboratory. Dr. Riley testified that she tested these samples and found the presence of fentanyl and its metabolite, norfentanyl; bupropion, an anti-depressant; lorazepam, a benzodiazepine (another anti-deprеssant or sedative); gabapentin, which is used for neuropathic pain; diphenhydramine (Benadryl); and Delta-9 tetrahydrocannabinol (THC), the active ingredient in cannabis, as well as the breakdown products of THC or marijuana. Dr. Riley testified that without knowing the other circumstances of T.Z.‘s death, the amount of fentanyl discovered in T.Z.‘s body could
After the government rested, Broeker moved for acquittal, but the district court denied his motion. Broeker then testified, and following closing arguments, the jury convicted Broeker on both counts. Broeker renewed his motion for acquittal and moved, in the alternative, for a new trial. The district court denied both of these motions.
II.
Broeker appeals the district court‘s denial of his motions for acquittal and a new trial. Because his arguments in support of both motions are almost identical, we address the motions contemporaneously. First,
Alternatively, we review a district court‘s denial of a motion for a new trial under the stricter, abuse-of-discretion standard. See Manning v. Jones, 875 F.3d 408, 410 (8th Cir. 2017) (explaining the “key question [is] whether a new trial is necessary to prevеnt a miscarriage of justice“).
To convict a defendant of distribution of a controlled substance—here, fentanyl—resulting in death, the government must prove, beyond a reasonable doubt,
at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim‘s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of
21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.
Id. at 218-19. Because Broeker admitted to distributing fentanyl to T.Z. immediately prior to T.Z.‘s death, the parties only cоntest whether that fentanyl caused T.Z.‘s death.
In his motion for acquittal, Broeker argued that the government presented insufficient evidence of causation. In his view, the government only presented evidence that Broeker sold fentanyl to T.Z. and that the sale occurred in close temporal proximity to T.Z.‘s first overdose, and this alone is insufficient to show that the fentanyl he distributed caused T.Z.‘s death. See, e.g., R. Doc. 150, at 4 (“Nonе of the witnesses could testify as to whether the drugs causing T.Z.‘s death were the same substance(s) allegedly sold to T.Z. by Mr. Broeker. Nor did the government present any physical or documentary evidence establishing such a nexus.“).
However, we find that the government‘s evidence overwhelmingly supports Broeker‘s conviction. The evidence shows that Broeker sold fentanyl to T.Z. approximately 30 minutes prior to T.Z.‘s first overdose and, аfter returning home from the hospital, T.Z. did not have access to a car or any electronics. From this, a reasonable jury could conclude that T.Z. could not have contacted a second supply source prior to his death and, after returning from the hospital, ingested only the fentanyl distributed by Broeker. Additionally, the jury heard testimony that the half-clear, half-black capsules Fedke removed from T.Z.‘s bedroom mаtched those sold by Barton on Broeker‘s behalf. And although the toxicology reports disclosed the presence of multiple drugs in T.Z.‘s system at the time of his death, Dr. Riley testified that the level of fentanyl in T.Z.‘s system could have, by itself, caused T.Z.‘s death, and Dr. Norfleet testified that T.Z.‘s cause of death was fentanyl. This evidence certainly supports the finding that the fentanyl Broeker distributed was an independently sufficient cause of, or at least a but-for cause of, T.Z.‘s death. See Burrage, 571 U.S. at 218-19 (requiring the government to show that the distributed controlled substance was either an independently sufficient or a but-for cause of the victim‘s death). We conclude that a reasonable jury could have found Broeker guilty beyond a reasonable doubt, and therefore, reversal of the district court‘s denial of Broeker‘s motion for acquittal is inappropriate.
Turning to Broeker‘s motion for a new trial, Broeker once again contests the sufficiency of the evidence, asserting that a new trial is necessary because the jury‘s
Although Broeker is correct that the standards are slightly different, here this distinction is inconsequential, and we affirm the district court‘s denial of his motion for a new trial. In addition to the obvious differences between the language found in
In addition to his sufficiency-of-the-evidence argument, Broeker also argues that because medical examiners routinely receive information directly from law enforcement, we should, as a policy matter, disavow this practice and find Drs. Norfleet and Riley not credible. See, e.g., Appellant Br. 30-31 (“Many times, medical examiners—who are responsible for making their own objective cause and manner of death determinations—are given the circumstances surrounding death only by law enforcement . . . . However, jurors are often not apprised of the fact that the required certainty for cause and manner of death for a death certificate is only that the probability of accuracy exceed fifty percent.“).
It is our familiar practice not to reach arguments raised for the first time on appeal. See, e.g., Fleck v. Wetch, 937 F.3d 1112, 1116 (8th Cir. 2019). Broeker did not challenge the credibility of Drs. Riley and Norfleet in his arguments to the district court, nor did he present an argument that, as a policy matter, medical examiners’ independence from law enforcement‘s investigations should be called into question. Because the district court was not given an opportunity to address this argument below, we will not pass upon it for the first time on appeal. See id. However, to the extent that this argument is an extension of Broeker‘s sufficiency-of-thе-evidence argument, which is properly before us, we find it unpersuasive. Dr. Norfleet testified that he received T.Z.‘s body following his death and performed an examination of that body, sending samples of blood, urine, and vitreous fluid from T.Z.‘s body to Dr. Riley for testing. Dr. Riley testified that after receiving those samples, she analyzed them, looking for any drugs, either illicit or pharmaceutical. Nothing in the record supports Broeker‘s suggestion of imрropriety; both Drs. Norfleet and Riley
Broeker also argues that the district court erred by excluding “Exhibit B,” an exhibit depicting five text messages obtained from T.Z.‘s phone. On February 28, T.Z. texted a contact labeled “Bosno Plug” and asked, “U got anything.” “Bosno Plug” responded, “No I don‘t g.” T.Z. did not respond. These messages were exchanged almost simultaneously with T.Z.‘s messages with Broeker in which Broeker indicated that he had “fenny.” Exhibit B also depicted incoming text messages which were received by T.Z.‘s phone after T.Z. had already died. These messages read, “Any perks?” and “P30s.” The government objected to Exhibit B‘s admission, arguing that the text messages were irrelevant and prejudiсial. The district court agreed and excluded Exhibit B. However, in his motion for a new trial, Broeker did not argue that the district court improperly excluded Exhibit B, and because he makes this argument for the first time on appeal, we decline to reach it. Fleck, 937 F.3d at 1116.
Finally, Broeker argues that the district court erred in limiting his cross-examination of Detective Percich. Detective Percich testified on direct examination that there arе typically text messages associated with the drugs found on the scene or in the victim‘s system. Then, on cross-examination, Broeker attempted to ask Detective Percich if he had “presented . . . any evidence of the source of lorazepam” or if he “ever [found] the text messages associated with that purchase of lorazepam.” The government first objected to this line of questioning on relevancе grounds and then objected because Broeker‘s questioning assumed facts not in evidence. The district court sustained both objections. Broeker did not raise this cross-examination argument before the district court, and we decline to reach it for the first time on appeal. See id.4
Therefore, in light of the abundant evidence against Broeker, discussed supra, and the stringent standard under which we review the district court‘s deniаl of Broeker‘s motion for a new trial, we find that the district court did not abuse its discretion in denying the motion for a new trial. See Manning, 875 F.3d at 410.
As a final matter, Broeker was indicted for distribution of fentanyl resulting in death (Count 1) and conspiracy to distribute fentanyl (Count 2) and was then convicted by a jury of both counts. However, the final presentence investigation report (PSR) and final judgment reflect a conviction for conspiracy to distribute fentanyl resulting in death (Count 1) and conspiracy to distribute fentanyl (Count 2). After
III.
For the foregoing reasons, we affirm but remand for correction of the final judgment.