Wake Forest Law Review

heroin

By Taylor Anderson

On March 7, 2016, the Fourth Circuit issued its published opinion regarding the criminal case United States v. Alvarado. Jean Paul Alvarado (“Appellant”) appealed his conviction of knowingly and intentionally distributing heroin to Eric Thomas (“Thomas”) with Thomas’ death resulting from the use of the heroin so distributed, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On appeal, Appellant contends that the district court erred in three ways during trial. The Fourth Circuit affirmed Appellant’s conviction, holding that the district court did not err in any of the three ways Appellant alleged.

Appellant Convicted of Heroin Distribution

On March 30, 2011, in response to custodial police questioning, Appellant admitted that, on the previous day, March 29, he sold five bags of heroin to Thomas. A grand jury later indicted Alvarado for heroin distribution resulting in death, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

Prior to trial, Appellant filed a motion in limine to exclude evidence of statements made by Thomas, including statements by which Thomas told friends that he bought heroin from a drug dealer named “Fat Boy,” referring to Appellant. The district court deferred resolution of the motion until trial and at that time admitted the statements.

At trial, several pieces of evidence linked Appellant to Thomas, including cell phone records and witness testimony. Also, it was shown that Thomas also used Xanax and Benadryl shortly before his death. Additionally, Virginia’s Assistant Chief Medical Examiner, Dr. Gayle Suzuki (“Suzuki”) testified that Thomas died of “heroin intoxication” and that “without the heroin, [Thomas] doesn’t die.”

The jury retired to deliberation after receiving jury instructions from the district court. Soon thereafter, the jury sent a question to the district judge asking whether the phrase “death resulted from the use of the heroin”—a phrase contained in the jury instructions—meant “solely from the use of the heroin or that the heroin contributed to [Thomas’] death.” In an attempt to prevent the jury from further confusion, counsel for both parties and the district court agreed not to provide any clarifying instructions to the jury. The jury later returned a guilty verdict and Appellant alleges three separate errors on the part of the district court. Each is discussed below.

District Court Did Not Err in Refusing to Clarify Jury Instructions

First, Appellant contended that the district court erred in failing to clarify for the jury the meaning of the “death results from” statutory enhancement element of the offense. The Fourth Circuit pointed out that it reviews the district court’s decision not to give further clarifying instruction for abuse of discretion. Also, when, as in this case, a party fails to object to an instruction or the failure to give an instruction, the Fourth Circuit reviews for “plain error.”

The Fourth Circuit initially pointed out that it was significant that after the court received the jury’s inquiry to clarify “results from,” Appellant’s counsel did not complain that the court’s response was unfair or inaccurate. Additionally, the Fourth Circuit stated that the “results from” language is typical of but-for causation language and the district court properly treated it as such. The Fourth Circuit also stated that but-for causation evidence plagued the record and therefore it could not conclude that the district court committed plain error, or even abused its discretion.

District Court Did Not Err in Refusing to Include Foreseeability of Death Element

Second, Appellant contended that the district court erred in failing to instruct the jury that defendants should only be held liable under this statute for the foreseeable results of their actions. Appellant argued that United States v. Patterson—the controlling law as to this issue—had changed and therefore this issue needed to be resolved once more and in a different manner.

The Fourth Circuit quickly dismissed this alleged error, stating that Patterson remains good law on this issue. Patterson states that the plain language of § 841(b)(1)(C) does not require that, prior to applying the enhanced sentence, the district court find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event. For this reason, the Fourth Circuit concluded that the district court fairly stated the controlling law in refusing to instruct the jury that § 841(b)(1)(C) contains a foreseeability requirement.

District Court Did Not Err in Refusing to Exclude Hearsay Evidence

Finally, Appellant contended that the district court erred in admitting hearsay that Thomas had said that he purchased heroin from “Fat Boy,” a name referring to Appellant. The Fourth Circuit noted that the district court admitted this hearsay under the “statement against interest” exception to hearsay and that exception allows hearsay to be admitted if (1) the declarant is unavailable, (2) the statement is genuinely adverse to the declarant’s penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Appellant only contended prong (2) of this test. Additionally, Appellant contended that his Sixth Amendment Confrontation Clause right was violated.

The Fourth Circuit found that even if there was error in admitting this hearsay evidence under the statement against interest exception, the error was harmless in light of the strength of the other evidence against Appellant. The Fourth Circuit noted that the other evidence all but conclusively confirms that only Appellant sold heroin to Thomas on the day of his death and that Thomas injected that heroin soon thereafter, resulting in his death.

The Fourth Circuit also stated that Appellant’s Confrontation Clause argument was unpersuasive because Thomas’ hearsay statement was not testimonial. This statement was not testimonial because it was made to friends in an informal setting. Because the statement was not testimonial, its admission does not implicate the Confrontation Clause.

Judgment Affirmed

The Fourth Circuit held that the district court did not err in any of the ways Appellant alleged. For this reason, the Fourth Circuit affirmed Appellant’s conviction.

One judge dissented in part, arguing that the jury instructions were not sufficiently clear.

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By Eric Jones

On January 20, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Moore.  Wendy Annette Moore and Christopher Austin Latham appealed their convictions for participating in a murder-for-hire plot, the target of which was Latham’s estranged wife.  Moore and Latham argued on appeal that the district court constructively amended the indictment against them through erroneous jury instructions, and improperly admitted both hearsay and character evidence.  The Fourth Circuit affirmed the convictions.

The Murder-For-Hire Plot

Latham was a banking executive in Charleston, South Carolina, and was dating his assistant Moore.  Moore and Latham allegedly hired Moore’s ex-husband Samuel Yenawine and his cellmate Aaron Wilkinson to murder Latham’s estranged wife Nancy Cannon.  Wilkinson was stopped by police as he drove through Charleston.  Wilkinson quickly revealed that he and Yenawine were involved in the plot, and that the murder had not yet occurred.

Although Wilkinson originally believed that he and Yenawine were setting out to purchase drugs, once on the road to Charleston from Louisville, Kentucky, Yenawine informed Wilkinson that they were in fact on the way to kill Cannon.  Once in Charleston, Yenawine purchased a pay-as-you-go cell phone, which he used to communicate to a then-unnamed woman that would meet them at the hotel.  Moore met the men, rented them a room, and gave the men $5,000 cash.  Yenawine later met with Moore a second time, returning with a manila envelope containing a “hit packet” with information about Cannon and her children, the plot to murder her, printed maps with handwritten notes, Cannon’s schedule and routine, and photographs of Cannon, her residence and her vehicle.  The items in the “hit packet” were linked to Latham and Moore through handwriting analysis.  Investigators also linked several of the items to Latham and Moore’s office computers and individual printers, and to their cell phones.  Cell phone tower evidence and bank records further linked Latham and Moore to the murder plot.

The Jury Instructions

After a jury trial, Latham was convicted of the use of interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958(a).  Moore was convicted of conspiracy to use interstate commerce facilities in the commission of murder for hire, solicitation of murder for hire, the use of interstate commerce facilities in the commission of murder for hire, and illegal firearm possession.  Latham was sentenced to 120 months in prison, and Moore to 180 months.

The federal murder-for-hire statute, 18 U.S.C. § 1958(a), enumerates two distinct and alternative prongs: the “travel prong” and the “facilities prong.”  Under the travel prong, the Fourth Circuit explained, a defendant may be convicted if she “travels in or causes another . . . to travel in interstate or foreign commerce.”  Under the facilities prong, a defendant may be convicted if she “uses or causes another . . . to use the mail or any facility of interstate commerce.”  Moore and Latham were being charged under the travel prong.  In its closing instructions, the district court read the indictment to the jury, advising them that the defendants were only being charged under the travel prong.  As it went on to describe § 1958(a), however, the court made two references to the uncharged facilities prong, indicating that a defendant may also be guilty of that prong.  Latham and Moore both filed post-trial motions arguing that the district court had constructively amended the indictment against them by mentioning the facilities prong.

Constructive Amendment of the Indictment

As the Fourth Circuit explained, a constructive amendment occurs when the government or the court “broadens the possible bases for conviction beyond those presented by the grand jury.”  The Court further explicated that the “key inquiry is whether a defendant has been tried on charges other than those listed in the indictment.”  Rather than rely solely on the jury instructions, however, the Fourth Circuit clarified that a reviewing court should “consider the totality of the circumstances—including not only the instructions and the indictment but also the arguments of the parties and the evidence presented at trial—to determine whether a jury could have ‘reasonably interpreted’ the challenged instructions as ‘license to convict’ on an unindicted charge.”  Although the Court conceded that in some circumstances a reference to the facilities prong could constitute an impermissible constructive amendment, it held that in this case it was not.  First, the bulk of the jury instruction properly tracked the indictment and omitted any mention of the facilities prong.  Additionally, the court’s opening instructions to the jury described only the travel prong.  The court also gave the jurors a copy of the indictment, which included only the travel prong, and expressly cautioned that the defendants were “not on trial for any act or crime not contained in the indictment.”

Furthermore, the entirety of Latham and Moore’s defense, as well as the entirety of the prosecution, focused on the travel prong and neither party mentioned the facilities prong.  The Fourth Circuit also noted that “the term ‘facilities of interstate commerce’ was never defined for the jury, and the government never suggested that . . . was a basis for convicting the [defendants].”  Thus, based on the totality of the circumstances at trial, the Fourth Circuit held that no juror could have reasonably believed that they were free to convict the defendants under the uncharged facilities prong.

The Hearsay and Character Evidence

At trial, the government called Yenawine’s new cellmate to testify that, before committing suicide after arrest, Yenawine told him about the murder-for-hire plot.  The district court allowed these statements to enter under the “statement against interest” exception to hearsay, found in Fed. R. Evid. 804(b)(3).  As Yenawine had no reason to lie to his cellmate, and the defendants could not establish that the district court abused its discretion in finding sufficient corroboration of Yenawine’s statements, the Fourth Circuit affirmed the district court’s decision.

Moore and Latham also argued on appeal that certain character evidence about Yenawine’s prior conviction for arson and his alleged involvement in murder was improperly admitted.  As these objections were not made at trial, however, the Fourth Circuit examined the record only for “plain error” that “seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”  The Court moved quickly past these arguments, stating that “Moore and Latham have not established that any of the testimony to which they object was admitted in ‘error,’ let alone ‘plain error.’”  In fact, as the Court pointed out, “some of the testimony was elicited by the [defendants] themselves.”  Furthermore, “even assuming, arguendo, the existence of plain error, [the Fourth Circuit] could not find the ‘serious[] effect’ on the ‘fairness, integrity, or public reputation’ of judicial proceedings required.”

The Fourth Circuit Affirmed the Convictions

Because the totality of the circumstances of the trial indicated that no reasonable juror could have been confused by the jury instruction, the Fourth Circuit held that no constructive amendment of the indictment had occurred.  Additionally, because the evidentiary objections could be disposed of “briefly,” the Court affirmed Latham’s and Moore’s convictions.