USCA11 Case: 20-10930 Date Filed: 07/05/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10930
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN BOHN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00143-RBD-EJK-1
____________________
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2 Opinion of the Court 20-10930
Before JORDAN, NEWSOM, and EDMONDSON, Circuit Judges.
PER CURIAM:
Jonathan Bohn appeals his conviction for distribution of a
controlled substance resulting in death, in violation of
21 U.S.C.
§ 841(a)(1), (b)(1)(C). No reversible error has been shown; we af-
firm.
Bohn’s conviction stems from his involvement in selling a
controlled substance to L.F. on 15 December 2017. Later that
night, L.F. died of a drug overdose.
A federal grand jury issued a superseding indictment charg-
ing Bohn with “knowingly and intentionally distribut[ing] a con-
trolled substance,” in violation of
21 U.S.C. § 841(a)(1) and
(b)(1)(C). The superseding indictment alleged that the charged vi-
olation “involved a mixture and substance containing a detectable
amount of fentanyl and cocaine” and that a person “died as a result
of the use of the mixture and substance containing a detectable
amount of fentanyl and cocaine, both Schedule II controlled sub-
stances, distributed by the defendant.” (emphasis added).
Following a three-day trial, the jury found Bohn guilty of the
charged offense. Bohn was sentenced to a mandatory minimum
sentence of 20 years’ imprisonment.
I.
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20-10930 Opinion of the Court 3
Bohn first challenges the district court’s jury instructions.
Bohn contends that the district court amended constructively the
superseding indictment when the district court instructed the jury
that Bohn could be found guilty if the jury found that “L.F. would
not have died but for the use of the cocaine and/or fentanyl distrib-
uted by [Bohn].” (emphasis added). Bohn also argues that the dis-
trict court’s “and/or” jury instruction misstated the law and misled
the jury to his detriment.
We review de novo whether a constructive amendment has
occurred. See United States v. Holt,
777 F.3d 1234, 1261 (11th Cir.
2015). A district court’s instructions to the jury are reviewed for an
abuse of discretion and will be upheld if they “accurately reflect the
law” and do not mislead the jurors. See United States v. Starke,
62
F.3d 1374, 1380 (11th Cir. 1995).
“The Fifth Amendment guarantees that a defendant can be
convicted only of crimes charged in the indictment.” Holt, 777
F.3d at 1261. An impermissible constructive amendment of the in-
dictment can happen “when the evidence at trial or the court’s jury
instructions deviate from what is alleged in the indictment.” Id. In
determining whether a constructive amendment has occurred, we
look at whether “the essential elements of the offense contained in
the indictment [have been] altered to broaden the possible bases
for conviction beyond what is contained in the indictment.” Id.
Constructive amendment of an indictment is per se reversible er-
ror. Id.
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4 Opinion of the Court 20-10930
Section 841(a)(1) makes it unlawful for a “person knowingly
or intentionally . . . to manufacture, distribute, or dispense . . . a
controlled substance.”
21 U.S.C. § 841(a)(1). “[I]f death or serious
bodily injury results from the use of such substance,” the defendant
is subject to an enhanced sentence between 20 years and life im-
prisonment.
21 U.S.C. § 841(b)(1)(C). “Because the ‘death results’
enhancement increase[s] the minimum and maximum sentences to
which [a defendant is] exposed, it is an element that must be sub-
mitted to the jury and found beyond a reasonable doubt.” Burrage
v. United States,
571 U.S. 204, 210 (2014). Thus, to obtain a convic-
tion for unlawful distribution of a controlled substance resulting in
death, the government must prove two elements: (1) knowing or
intentional distribution of a controlled substance, and (2) death
caused by use of that controlled substance.
Id.
We have said that “[t]he specific type of drug involved is not
an element of § 841(a) but is instead ‘relevant only for sentencing
purposes.’” See United States v. Achey,
943 F.3d 909, 914 (11th Cir.
2019). Moreover, application of section 841(b)(1)(C)’s “death re-
sults” enhancement requires no specific type of drug: the enhance-
ment applies in cases involving an unspecified amount of any
Schedule I or II controlled substance. See
21 U.S.C. § 841(b)(1)(C).
“[A]n indictment may charge . . . the commission of any one
offense in several ways.” United States v. Miller,
471 U.S. 130, 136
(1985). “As long as the crime and the elements of the offense that
sustain the conviction are fully and clearly set out in the indict-
ment,” a defendant’s rights under the Fifth Amendment are not
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20-10930 Opinion of the Court 5
violated when the indictment alleges more than one “means of
committing the same crime.”
Id. We have recognized as “well
established” that “where an indictment charges in the conjunctive
several means of violating a statute, a conviction may be obtained
on proof of only one of the means, and accordingly the jury instruc-
tion may properly be framed in the disjunctive.” See United States
v. Simpson,
228 F.3d 1294, 1300 (11th Cir. 2000) (rejecting a con-
structive-amendment argument where the indictment charged
that defendant “did knowingly use and carry a firearm” and the trial
court instructed that the jury could convict the defendant if the jury
found the defendant “used or carried” a firearm).
Under the circumstances presented in this case, we cannot
conclude that the district court’s jury instructions amended con-
structively the superseding indictment. Because the type of drug
involved is not an element of an offense under section 841(a)(1) and
(b)(1)(C), the “and/or” language in the jury instructions did not al-
ter the essential elements of the charged offense. The “death re-
sults” enhancement would have applied properly in this case
whether the controlled substance that caused L.F.’s death consisted
of cocaine (a Schedule II drug), of fentanyl (a Schedule II drug), or
of a mixture of both. The controlled substances charged in Bohn’s
superseding indictment (cocaine and fentanyl) merely constituted
different means by which section 841(a)(1) and (b)(1)(C) could be
violated. That the superseding indictment charged in the conjunc-
tive the different means of committing the offense and the jury was
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6 Opinion of the Court 20-10930
instructed in the disjunctive constitutes no impermissible construc-
tive amendment. See Simpson,
228 F.3d at 1300.
Nor did the district court’s jury instructions misstate the law
or mislead the jury. On appeal, Bohn contends that the “and/or”
language in the jury instructions allowed the jury to convict Bohn
without reaching a unanimous decision about which drug caused
L.F.’s death. We have said, however, that when an indictment al-
leges different means of committing an offense, the district court
need not “instruct the jury to unanimously agree on which theory
supported the verdict.” See United States v. Verbitskaya,
406 F.3d
1324, 1334 (11th Cir. 2005). Moreover -- because Bohn agreed ex-
pressly with the district court’s decision to deny the government’s
request for a jury instruction on unanimity -- Bohn is now pre-
cluded from challenging that ruling on appeal. See United States
v. Feldman,
931 F.3d 1245, 1260 (11th Cir. 2019) (explaining that
“when a party agrees with a court’s proposed instructions, the doc-
trine of invited error applies, meaning that review is waived even
if plain error would result.”).
II.
Bohn next challenges the district court’s denial of his motion
for judgment of acquittal. Bohn says the evidence presented at trial
was insufficient to permit a jury to find that the drugs Bohn sold to
L.F. were the drugs that resulted in L.F.’s death.
“We review de novo a district court’s denial of judgment of
acquittal on sufficiency of evidence grounds.” United States v.
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20-10930 Opinion of the Court 7
Rodriguez,
732 F.3d 1299, 1303 (11th Cir. 2013). In determining
the sufficiency of the evidence, “we consider the evidence in the
light most favorable to the government, drawing all reasonable in-
ferences and credibility choices in the government’s favor.”
Id. We
cannot overturn a jury’s verdict unless no “reasonable construction
of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.”
Id.
“[W]hen the government relies on circumstantial evidence,
the conviction must be supported by reasonable inferences, not
mere speculation.”
Id. Because the “jury is free to choose among
reasonable constructions of the evidence,” the government need
not “disprove every reasonable hypothesis of innocence.” United
States v. Foster,
878 F.3d 1297, 1304 (11th Cir. 2018) (quotations
omitted).
Viewed in the light most favorable to the government, the
evidence presented at trial was sufficient to permit a reasonable
factfinder to conclude beyond a reasonable doubt that Bohn dis-
tributed knowingly the controlled substance that resulted in L.F.’s
death.
On 15 December 2017, at 10:24 p.m., L.F. texted Bohn and
asked for $20 worth of heroin. Bohn arranged to buy the heroin
from a third person and met with L.F. shortly after 11 p.m. to com-
plete the sale. L.F. and Bohn then both used a small amount of the
drugs before parting ways. About 15 minutes later (at 11:28 p.m.),
L.F. texted Bohn to question the identity of the drugs, saying she
believed the drugs might be cocaine, not heroin.
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8 Opinion of the Court 20-10930
After L.F. met with Bohn, L.F. arranged to buy Xanax from
a person named DeJesus. At 11:51 p.m., L.F. texted DeJesus that
she was on her way to meet him and was “about to leave.” At 12:49
a.m., DeJesus texted L.F. and wrote, “are you coming?” L.F. never
responded nor did L.F. answer a 1:18 a.m. phone call from DeJesus.
L.F. was found dead in her home the following morning.
During a search of L.F.’s home, police officers found three
different-sized Ziploc bags: a small green bag partially filled with
drugs (a mixture of heroin, fentanyl, cocaine, and lidocaine) and
two larger bags containing drug residue (cocaine, phenacetin, and
lidocaine). The green bag was the only bag found that contained
heroin. The government presented testimony that the size of the
green bag was consistent with the size bag used typically to sell $20
worth of heroin.
Based on this evidence, a factfinder could infer reasonably
that the small, partially-filled green bag found in L.F.’s home was
the bag of drugs L.F. bought from Bohn on 15 December. Alt-
hough L.F. attempted to purchase more drugs later that night, the
text messages on L.F.’s phone indicate that L.F. never completed
that purchase. The contents of the green bag were consistent with
the drugs found in L.F.’s system, indicating that L.F. ingested the
drugs shortly before her death. The medical examiner testified that
L.F. died as a result of fentanyl and cocaine intoxication.
Bohn contends that the government’s evidence does not
rule out that L.F.’s death was caused by drugs L.F. purchased from
someone other than from Bohn. Bohn says the government
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20-10930 Opinion of the Court 9
presented no direct evidence connecting Bohn to the green Ziploc
bag. Bohn also presented expert testimony that the absence of
norfentanyl (a metabolite of fentanyl) found in L.F.’s body indi-
cated that L.F. ingested the fatal dose of fentanyl less than 30
minutes before her death. Bohn speculates that L.F. used the drugs
she got from Bohn shortly after 11:00 p.m., texted DeJesus more
than 30 minutes later, and then obtained fentanyl-laced Xanax from
another person that night. The jury, however, was free to -- and
did -- reject this alternative hypothesis. See Foster, 878 F.3d at 1304.
The evidence viewed in the light most favorable to the gov-
ernment supports the jury verdict. The district court committed
no error in denying Bohn’s motion for judgment of acquittal.
III.
Bohn next contends that the district court abused its discre-
tion in denying Bohn’s motion for a new trial, pursuant to Fed. R.
Crim. P. 33. In support of his argument that the jury’s verdict was
against the weight of the evidence, Bohn relies on these things: (1)
the absence of direct evidence tying Bohn to the green Ziplock bag;
(2) that Bohn suffered no ill effects after using a small amount of
the drugs sold to L.F.; (3) the absence of norfentanyl in L.F.’s sys-
tem (indicating that L.F. died less than 30 minutes after ingesting
the fatal dose of fentanyl) and Bohn’s assertion that L.F. consumed
the drugs she bought from Bohn at least 32 minutes before her
death; and (4) the large amount of Xanax and fentanyl in L.F.’s sys-
tem, supporting a theory that L.F. died as a result of consuming
fentanyl-laced Xanax.
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10 Opinion of the Court 20-10930
We review for abuse of discretion the district court’s denial
of a defendant’s Rule 33 motion for a new trial based on a jury ver-
dict against the weight of the evidence. See United States v. Green,
981 F.3d 945, 960 (11th Cir. 2020).
Upon a defendant’s motion for a new trial under Rule 33,
the district court “may vacate any judgment and grant a new trial
if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “Mo-
tions for a new trial based on the weight of the evidence are ‘not
favored’ and are reserved only for ‘really exceptional cases.’”
United States v. Gallardo,
977 F.3d 1126, 1140 (11th Cir. 2020). “To
warrant a new trial under Rule 33, the evidence must preponderate
heavily against the verdict, such that it would be a miscarriage of
justice to let the verdict stand.”
Id. at 1139-40 (alteration and quo-
tation omitted). A new trial may be granted only in the “rare case”
where -- although the evidence is legally sufficient to convict the
defendant -- “the credibility of the government’s witnesses had
been impeached and the government’s case had been marked by
uncertainties and discrepancies.” Id.; see United States v. Martinez,
763 F.2d 1297, 1314 (11th Cir. 1985) (concluding a new trial was
unwarranted when the defendant demonstrated only a “clear-cut
conflict in testimony” -- “not an instance where the government’s
case was presented by impeached witnesses, while the testimony
of the defendant’s witnesses was unwavering and corroborated by
independent evidence.”).
The district court abused no discretion in denying Bohn’s
motion for a new trial. We have already concluded that the
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20-10930 Opinion of the Court 11
evidence presented at trial was sufficient to sustain Bohn’s convic-
tion. Bohn has not challenged the credibility of the government’s
witnesses. And nothing indicates that the evidence against Bohn
was marked with such uncertainties or discrepancies that would
undermine confidence in the jury’s verdict. The district court
abused no discretion in concluding that Bohn’s case was not the
kind of “rare” or “exceptional” case that would warrant a new trial.
AFFIRMED.
