United States v. Jerry Haymon ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY HAYMON, a/k/a Bear,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:19-cr-00214-LO-1)
Submitted: July 30, 2021 Decided: October 1, 2021
Before MOTZ, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul P. Vangellow, PAUL P. VANGELLOW, PC, Falls Church, Virginia, for Appellant.
Raj Parekh, Acting United States Attorney, Philip Alito, Assistant United States Attorney,
Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Haymon, IV, was convicted after a jury trial of conspiracy to distribute and
possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21
U.S.C. §§ 841(a), 846. The district court sentenced Haymon to the mandatory minimum
sentence of 120 months in prison. Haymon appeals, asserting numerous challenges to the
criminal judgment. We affirm.
Viewed in the light most favorable to the Government, United States v. Palomino-
Coronado, 805 F.3d 127, 130 (4th Cir. 2015), the evidence established that, from 2013 to
2017, Haymon, who resided in California, provided multi-kilogram quantities of marijuana
to Nasiru Carew and Rashourn Niles for distribution in Virginia, Maryland, and
Washington, D.C. The participants communicated extensively by text messages. Niles
and Carew contacted Haymon in California to request shipments of marijuana. Haymon
typically shipped packages containing marijuana through the mail to different addresses
provided by Niles and Carew. On other occasions, Haymon would send packages
containing marijuana by United Parcel Services or Federal Express. Niles and Carew paid
for the marijuana shipments by money order, mailing cash, depositing money in various
bank accounts provided by Haymon, or personally delivering money to Haymon.
I. Exclusion of evidence of California law
Haymon first contends that the district court abused its discretion by precluding him
from introducing evidence concerning California law related to medical marijuana. He
asserts that California legalized the use of medical marijuana and that his conduct was
2
lawful under California law and therefore he did not have the requisite criminal intent to
commit the conspiracy offense with which he was charged.
The fact that a state decriminalized possession of marijuana does not provide a
defense to a charged violation of federal drug laws. See United States v. Henry, 673 F.3d
285, 291-92 (4th Cir. 2012). Rather, “[m]arijuana remains illegal under federal law, even
in those states in which medical marijuana has been legalized.” United States v. Canori,
737 F.3d 181, 184 (2d Cir. 2013) (citations omitted). Thus, we find no abuse of discretion
by the district court in excluding evidence of California law. See United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2020) (providing standard).
Haymon also contends that the district court misinformed the jury about California’s
marijuana laws. The district court correctly instructed the jury that California state laws
were irrelevant and inapplicable to this case. Thus, any purported error in the district
court’s characterization of California law was harmless. See United States v. Benson, 957
F.3d 218, 230 (4th Cir.) (providing that juries are presumed to follow instructions), cert.
denied, 141 S. Ct. 934, and cert. denied, 141 S. Ct. 935 (2020),
Haymon argues that, because his possession of marijuana was lawful in California,
he lacked the requisite intent to violate federal law and the district court’s refusal to admit
evidence of California law deprived him of the opportunity to present his defense of
mistake of law or fact. We reject this argument. “To prove conspiracy to possess
[controlled substances] with intent to distribute, the Government must establish that: (1) an
agreement to possess [controlled substances] with intent to distribute existed between two
or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant
3
knowingly and voluntarily became a part of this conspiracy.” United States v. Burgos, 94
F.3d 849, 857 (4th Cir. 1996). Contrary to Haymon’s arguments, the Government did not
need to prove that Haymon intended to commit a crime or that he knew that his conduct
was illegal. See United States v. Ali, 735 F.3d 176, 186 (4th Cir. 2013) (holding that the
mens rea of § 841(a) only “requires specific intent to distribute a controlled substance or
to possess with intent to distribute a controlled substance”).
Additionally, Haymon’s contention that his possession of marijuana was lawful
under California law, and therefore he lacked the specific intent to violate 21 U.S.C.
§ 841(a), is not a defense to a charge under the Controlled Substances Act. See Ali, 735
F.3d at 186 (holding that prosecutor need not prove that a defendant intended to violate the
law in order to obtain a conviction under the Controlled Substances Act); see also United
States v. Morales, 14-10212, 680 F. App’x 548, 551 (9th Cir. Feb. 23, 2017) (“neither
medical necessity nor mistake of law constitutes a defense to federal drug charges”) (citing
United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 490-91 (2001)).
We further conclude that Haymon’s proffered defense of mistake lacked an
evidentiary foundation and therefore the district court appropriately declined to give this
instruction. See United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988). Rather
than supporting Haymon’s claim of a lack of intent, the record contains overwhelming
evidence that Haymon knew that his conduct was unlawful and that he and his
coconspirators used elaborate measures to avoid detection by law enforcement officials.
II. Sufficiency of the evidence
4
Haymon next contends that the district court erred by denying his motion for
judgment of acquittal in which he argued that the evidence was insufficient to prove that
he possessed marijuana with the intent to distribute and that he intended to conspire with
others to distribute marijuana. He maintains that any marijuana he possessed was for
personal use, that the exclusion of California law deprived him of the ability to argue that
he lawfully possessed the marijuana for personal use, and that he never formed the intent
to join the conspiracy with the specific intent to distribute marijuana.
We review the trial court’s denial of a motion for judgment of acquittal de novo,
United States v. White, 810 F.3d 212, 228 (4th Cir. 2016), and review “challenge[s] to the
sufficiency of the evidence de novo,” Palomino-Coronado, 805 F.3d at 130. Viewing the
evidence in the light most favorable to the Government, we conclude that there was
substantial evidence to support the jury’s verdict. Id. Carew, Niles, and other members of
the drug distribution organization testified that Haymon obtained marijuana in California
and shipped it to the East Coast, using several different methods of transport. Other
members of the conspiracy would retrieve these packages and would pay Haymon in a
variety of ways in order to avoid detection. Niles and Carew each considered Haymon a
partner in these activities. The coconspirators’ testimony was corroborated by electronic
messages recovered from the participants’ cell phones. These messages referred to
numerous drug deals, elaborate shipping and payment arrangements, and measures taken
to avoid detection by law enforcement. Because there was substantial evidence at trial that
Haymon knowingly and voluntarily conspired with others to distribute marijuana, we
5
conclude that the district court did not err in denying Haymon’s motion for judgment of
acquittal.
We also find that there was sufficient evidence to support the jury’s decision to
attribute 1,000 kilograms or more of marijuana to Haymon. See Palomino-Coronado, 805
F.3d at 130. Niles testified that, from 2014 to 2016, Haymon provided him with
approximately 15 pounds of marijuana per week. The Government estimated that this
amounted to 2,160 pounds—or approximately 980 kilograms—over the course of the
conspiracy. And Carew testified that, between 2013 and 2017, he purchased at least 1,883
pounds—or approximately 854 kilograms—of marijuana from Haymon. This testimony
was supported by numerous text messages and by the corroborating testimony of other
coconspirators. Although Haymon challenges Carew’s and Niles’ credibility, “[t]he jury,
not the reviewing court, weighs the credibility of the evidence and resolves any conflicts
in the evidence presented.” United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
Accordingly, we conclude that the jury’s verdict was supported by the evidence and that
the district court appropriately entered judgment in accordance with the jury’s verdict.
III. Jury issues
During deliberations, the jury sent an inquiry to the court asking, “Who are the
individuals that were walking in and out of the audience during the trials?” and “Do I have
any reason to be concerned for my safety and overall welfare from being a part of this
jury?” The court advised the jurors that the “persons in attendance during the trial have
been courthouse personnel and law enforcement officers interested in the case,” and that
there was “no known safety risk to [them for] performing [their] duties [as jurors].”
6
Haymon contends that the district court erred by declining to poll the jury as to their
concerns for their safety and whether this affected the verdict.
The Supreme Court has concluded that “any private communication, contact, or
tampering, directly or indirectly, with a juror during a trial about the matter pending before
the jury is . . . deemed presumptively prejudicial.” Remmer v. United States, 347 U.S. 227,
229 (1954)). We find, however, that the allegations here – of unknown persons walking in
and out of the courtroom during the trial – do not rise to the level of a private
communication or contact with a juror that would require further inquiry. See United States
v. Small, 944 F.3d 490, 497 (4th Cir. 2019) (declining to question or excuse two jurors who
complained that they were “watched” as they exited the jury room, concluding “‘watching’
can hardly be described as ‘communication’ or ‘contact,’ both of which imply an active
exchange of information of some sort”), cert. denied, 140 S. Ct. 2644 (2020); see United
States v. Baptiste, 596 F.3d 214, 220-21 (4th Cir. 2010) (declining to reach the question of
whether stares from a crowd constituted unauthorized contact, reasoning that there was no
evidence that the staring was likely to affect the verdict). Thus, we conclude that the district
court did not abuse its discretion by declining to question the jury about any influence these
persons may have had on their verdict. See United States v. Johnson, 657 F.2d 604, 606
(4th Cir. 1981) (“The trial court must be afforded wide discretion in handling matters
relating to . . . the integrity of the jury.”).
Haymon also speculates that the jury may have been influenced or intimidated as a
result of the prosecutor’s reference during Haymon’s cross-examination to “armed
individuals” picking up marijuana that had been sent to Carew. The trial court sustained
7
Haymon’s objection to this reference and specifically stated, “There’s no evidence of
armed persons picking it up.” We find that, in light of the strength of the evidence of
Haymon’s guilt, this isolated reference, which was immediately corrected by the trial
judge, does not warrant reversal. See United States v. Jones, 471 F.3d 535, 542 n.2 (4th
Cir. 2006). Additionally, the district court instructed the jury that any proposed testimony
to which an objection was sustained was to be disregarded, and that questions and
objections are not evidence. Because juries are presumed to follow the court’s instructions,
Benson, 957 F.3d at 230, Haymon cannot establish that this isolated reference to “armed
individuals” prejudiced the jury.
IV. Buyer – Seller instruction
Haymon argues that the district court erred in denying his request for a buyer-seller
jury instruction. This court “review[s] for abuse of discretion the district court’s denial of
[a] proposed jury instruction[].” United States v. Sonmez, 777 F.3d 684, 688 (4th Cir.
2015). A buyer-seller instruction informs the jury that the mere purchase and sale of
narcotics standing alone is insufficient to establish a conspiratorial agreement to distribute
narcotics. United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993).
Evidence of a buyer-seller relationship, coupled with evidence of a “substantial
quantity of drugs,” is sufficient to establish a conspiracy. United States v. Yearwood, 518
F.3d 220, 226 (4th Cir. 2008). The district court acts within its discretion if it does not give
the buyer-seller instruction when the evidence reveals that the relationship between the
alleged conspirators goes beyond a mere drug transaction. Mills, 995 F.2d at 485.
Evidence of a continuing buy-sell relationship along with evidence of large quantities of
8
drugs or repeated transactions can offer further support of a conspiratorial agreement.
United States v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011).
In this case, the Government presented evidence of a continuous buy-sell
relationship that involved regular transactions involving large quantities of marijuana over
a period of several years. In addition, numerous text messages established that Haymon
and Carew and Niles had an ongoing relationship. See Hackley, 662 F.3d at 679. Because
the evidence revealed more than a simple drug transaction, the district court did not abuse
its discretion by denying Haymon’s request for a buyer-seller instruction. See Sonmez, 777
F.3d at 688.
We further conclude that the lack of a buyer-seller instruction did not impair
Haymon’s defense to the conspiracy charge. The district court instructed the jury that, in
order to convict Haymon for conspiracy, it must find, beyond a reasonable doubt, that
Haymon “knowingly and deliberately entered into an agreement to distribute [] controlled
substances.” The court also instructed the jury that “[m]erely associating with others and
discussing common goals” and “merely being present at the place where a crime takes
place or is discussed” is insufficient to establish that the person is a member of a
conspiracy. We conclude that the lack of a buyer-seller instruction did not “seriously
impair [Haymon’s] defense,” see United States v. Lewis, 53 F.3d 29 32 (4th Cir. 1995), and
therefore find that the district court did not err in denying Haymon’s request for a buyer-
seller instruction.
V. Evidentiary issues
9
Haymon next contends that the district court erred by denying his motion to suppress
evidence recovered from his cell phone. He argues that the Fresno Police Department
retained his phone in violation of the terms of the state warrant and turned the phone over
to the federal government in violation of state law. He also argues that the federal
government seized his phone and its contents prior to the issuance of a federal search
warrant.
In reviewing a district court’s ruling on a motion to suppress, we review conclusions
of law de novo and underlying factual findings for clear error. United States v. Cloud, 994
F.3d 233, 242 (4th Cir. 2021). “Because the district court denied [Haymon’s] motion to
suppress, [this Court] construe[s] the evidence in the light most favorable to the
[G]overnment.” United States v. Clarke, 842 F.3d 288, 293 (4th Cir. 2016) (internal
quotation marks omitted).
Notwithstanding any potential errors by the state authorities in retaining Haymon’s
phone or turning it over to the federal authorities, because the investigators searched the
contents of Haymon’s phone pursuant to a facially valid federal search warrant the district
court appropriately determined that the cell phone evidence was admissible under the good
faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897,
913, 918-20 (1984). Additionally, we find that, in light of the overwhelming evidence
supporting Haymon’s guilt, any error in admitting evidence from Haymon’s phone was
harmless. See Chambers v. Maroney, 399 U.S. 42, 53 (1970) (applying harmless error
analysis to admission of evidence taken in violation of the Fourth Amendment).
10
Haymon also contends that the destruction in 2013 or 2014 of the substance
contained in packages seized by the United States Postal Inspection Services in connection
with its investigation of Carew and which field-tested presumptively positive for
marijuana, violated his rights under Brady v. Maryland, 373 U.S. 83 (1963). Haymon
contends that this substance “may not have been marijuana” and that his right to a fair trial
was violated by admission of evidence as to the identity of the substance.
Because Haymon failed to raise these claims in the district court, our review is for
plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). “To establish eligibility for plain-error relief, a defendant must satisfy three
threshold requirements.” Greer v. United States, 141 S. Ct. 2090, 2096 (2021). “First,
there must be an error. Second, the error must be plain. Third, the error must affect
substantial rights, which generally means that there must be a reasonable probability that,
but for the error, the outcome of the proceeding would have been different.” Id. (internal
quotation marks omitted). “If those three requirements are met, an appellate court may
grant relief if it concludes that the error had a serious effect on the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
Under Brady, “the suppression by the prosecution of evidence favorable to an
accused . . . violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
Success on a Brady claim requires “the proponent [to] show that the undisclosed evidence
was (1) favorable to him either because it is exculpatory, or because it is impeaching;
(2) material to the defense, i.e., prejudice must have ensued; and (3) that the prosecution
11
had materials [or information] and failed to disclose them.” United States v. Taylor, 942
F.3d 205, 225 (4th Cir. 2019).
With these standards in mind, we have reviewed the evidence and conclude that, in
light of the overwhelming evidence of Haymon’s involvement in a marijuana conspiracy,
he cannot establish that any plain error resulted from the admission of evidence as to the
identity of a substance that was seized and destroyed prior to the authorities’ investigation
of Haymon. See Olano, 507 U.S. at 735; see United States v. Gomez, 191 F.3d 1214, 1218
(10th Cir. 1999) (finding no discovery violation where drug evidence was destroyed before
defendant was indicted and therefore the government was not in possession of evidence).
Moreover, Haymon’s speculation as to the accuracy of the field test does not establish a
Brady violation. See United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010).
VI. Conclusion
We have reviewed the record and have determined that the district court did not err
in any of the ways asserted by Haymon. Accordingly, we affirm the district court’s
judgment. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
12