United States v. Maurice Cathey ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1421
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United States of America
Plaintiff - Appellee
v.
Maurice Bellafonta Cathey
Defendant - Appellant
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No. 20-1519
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United States of America
Plaintiff - Appellee
v.
Corrod Leon Phillips
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: December 15, 2020
Filed: May 18, 2021
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Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Corrod Phillips and Maurice Cathey were arrested for conspiring to distribute
drugs in South Dakota. In joint proceedings, they were tried and convicted of two
counts of conspiring to distribute a controlled substance in violation of 21 U.S.C.
§ 846 and 21 U.S.C. § 841(a)(1) and one count of distribution resulting in serious
bodily injury in violation of 21 U.S.C. § 841(a)(1). The jury also found Phillips
guilty of one additional count of distribution resulting in serious injury and Cathey
guilty of two additional counts of distribution resulting in serious injury or death.
Phillips appeals his conviction solely on the distribution resulting in serious injury
counts. Cathey appeals his conviction on all counts. Both argue that the district
court1 erroneously denied their motions for acquittal based on insufficiency of the
evidence. We affirm.
I.
In January 2018, a confidential informant contacted Maurice Cathey on his
Chicago-area cell phone number to set up a controlled buy. The same day, Shania
Hofer also bought heroin from Cathey. Hofer returned to her friend Layne Diaz’s
home and they both used the heroin, resulting in Diaz’s overdose. Hofer then called
the CI over, who saw that Diaz was unresponsive but alive. Hofer eventually called
EMTs for Diaz, but he was pronounced dead at the hospital. An autopsy revealed
that he died of heroin toxicity.
After a month, Hofer was buying heroin from Cathey daily, calling him at the
same Chicago-area cell phone number. One day, Hofer overdosed within minutes
1
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.
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of taking heroin that Cathey sold her. She was treated with Narcan and taken to the
hospital.
A few days later, police showed Hofer a photo lineup including Cathey and
asked her to identify who sold her the heroin. At first, Hofer told police she did not
recognize anyone in the lineup, but later that day she admitted that she recognized
Cathey. Cathey remained at large, and Hofer continued to purchase heroin from
him. She also began selling that heroin to her own customers, including Ty Olson.
Olson contacted Hofer to buy heroin one day in April, and Hofer in turn called
Cathey to purchase heroin she could resell. Cathey’s associate, Corrod Phillips,
delivered the heroin to Hofer, and she sold it to Olson. Olson overdosed on the
heroin a short time later but was revived with Narcan and taken to the hospital.
By late April, police had gathered substantial evidence tying Cathey to drug
distribution. Police then searched a home associated with him, but Cathey managed
to flee to Chicago. Phillips remained in Sioux Falls, though, and continued
distributing drugs on Cathey’s behalf. Hofer also continued selling Cathey’s heroin
in Sioux Falls, even travelling to Chicago twice to purchase more drugs from him.
She told her buyers to contact Phillips if they wanted drugs while she was gone.
In line with Hofer’s instructions, Devlin Tommeraasen bought heroin from
Phillips in May and overdosed. EMTs revived him with Narcan and took him to the
hospital.
Police ultimately arrested Phillips during a heroin and crack cocaine sale in
May. A search revealed that Phillips had Cathey’s Chicago-area cell phone with
him. Cathey was also eventually apprehended, and both Cathey and Phillips were
indicted for several drug distribution and conspiracy charges.
At trial, the Government called Hofer’s friend Nicole Hollaar to testify. At
first, Hollaar testified that she did not know Cathey. But the Government knew from
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text messages on Cathey’s cell phone that Hollaar had bought heroin from him.
Counsel for the Government and Jorge Carrasco, a case agent who would later testify
at trial, then interviewed Hollaar, and she admitted that she lied on the stand. The
Government notified defense counsel that Hollaar would be recalled and offered
immunity in exchange for correcting her false testimony. Hollaar corrected her
testimony and testified that Hofer told her that Cathey was the source of Hofer’s
drugs. Defense counsel objected, saying the Government violated the district court’s
witness sequestration order because Agent Carrasco was also a testifying witness.
The court overruled the objection and allowed Hollaar to testify that she contacted
Cathey multiple times to buy heroin to sell to her own customers.
Both men were found guilty and filed motions for judgments of acquittal,
which the district court denied. At sentencing, the Government introduced copies
of Cathey’s prior felony convictions to support a sentencing enhancement under
21 U.S.C. § 851. Cathey objected, saying there were no photographs or fingerprints
attached to the documents to prove that he was the person listed in the convictions.
The district court overruled Cathey’s objection and found that the Government
proved that he had been previously convicted. Cathey was given two 30-year
sentences and three life sentences, all to run concurrently. Phillips was given four
concurrent 20-year sentences. Cathey and Phillips now appeal.
II.
We address Phillips’s argument first. He says the Government did not prove
beyond a reasonable doubt that the drugs he distributed to Olson and Tommeraasen
“were the sole cause of [their] serious bodily injur[ies].” Phillips Br. 8.
We review challenges against the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the verdict and accepting all reasonable
inferences that support the verdict. United States v. Seals, 915 F.3d 1203, 1205 (8th
Cir. 2019). When a defendant challenges the sufficiency of the evidence, the
“verdict will be upheld if there is any interpretation of the evidence that could lead
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a reasonable jury to convict.” Id. (citation omitted). To sustain the guilty verdict,
the Government must have proved that (1) the defendant knowingly or intentionally
distributed a drug; and (2) the victim died or sustained a serious bodily injury caused
by the use of the drug. United States v. Lewis, 895 F.3d 1004, 1009 (8th Cir. 2018)
(citation omitted). Phillips contests only the second element: that the drug be either
the “but-for” cause or an “independently sufficient” cause of the injury. Burrage v.
United States, 571 U.S. 204, 218–19 (2014).
Phillips says there was insufficient evidence of his guilt with respect to
Olson’s injury because even “if the opiate [overdose] is reversed by Narcan it does
not mean the opiate was the only reason for the overdose.” Phillips Br. 12. Phillips
argues that Olson’s overdose was the result of a combination of several drugs all
interacting, and so the opiate could not have been a but-for cause of injury. Phillips
makes a similar argument about Tommeraasen’s overdose. He supports this latter
argument by pointing to the defense expert’s testimony that the expert could not
conclude that Phillips’s heroin alone caused Tommeraasen’s overdose. Phillips says
that a reasonable jury could not believe that but for his heroin, the two victims would
not have overdosed.
Phillips’s argument misunderstands what but-for cause requires. We said in
Seals that when the victim purchased a drug mixture, ingested it, and collapsed
within seven minutes, a “reasonable jury could find that the tight chain of events
strongly suggested on its own that the [drug] mixture caused the overdose.” Seals,
915 F.3d at 1206. We also recently considered facts that are on all fours with this
case in United States v. Myers: different drugs were present in the victim’s body,
but the fatal overdose did not occur until the victim took heroin. 965 F.3d 933, 938
(8th Cir. 2020). We concluded in Myers that when a medical expert testifies that a
victim “would be alive” were it not for the drugs the defendant sold to the victim, a
“reasonable jury could conclude” that the drugs “caused his death.” Id. at 938–39.
Bearing in mind the standard these cases establish, we turn to Olson’s
overdose. The record shows that Olson had benzodiazepines in his system when he
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arrived at the hospital. Benzodiazepines are a different kind of drug than heroin, and
Phillips points to them as a possible alternative source of Olson’s overdose. But
Olson was revived by Narcan. Expert testimony at trial established that Narcan
reverses only the effects of opiates like heroin. So, although Olson had
benzodiazepines in his system when he overdosed, there is no evidence suggesting
that the benzodiazepines alone would have rendered Olson unconscious and not
breathing. That is, if the benzodiazepines were what caused Olson to stop breathing,
the expert testimony indicates that Olson would not have started breathing again
after receiving Narcan. Finally, additional expert testimony suggested that if Olson
was suffering from benzodiazepine overdose, he would have had dilated pupils, but
he instead had pinpoint pupils at the scene of the overdose. We have previously
noted that “pinpoint pupils” are a “symptom[] of an opiate overdose.” Seals, 915
F.3d at 1204. The evidence presented at trial was enough to establish that the heroin
Phillips gave to Olson via Hofer was a but-for cause of injury under Seals and Myers.
With respect to Tommeraasen’s overdose, Tommeraasen testified that he used
methamphetamine at 8:00 p.m. on May 15, purchased heroin from Phillips the
following day, and then used the heroin that afternoon. Although Tommeraasen was
still feeling some lingering effects of the methamphetamine he took the prior night,2
the record shows that he fell unconscious within seconds of injecting himself with a
“fat shot” of heroin on May 16. Trial Tr. 963. These facts fit squarely with those
that we confronted in Seals and determined were enough to sustain the defendant’s
conviction there. We likewise sustain Phillips’s convictions.
III.
Cathey’s argument is four-fold. He argues that (1) the Government did not
prove beyond a reasonable doubt that he was guilty on any of his counts of
conviction; (2) the district court erred when it admitted hearsay statements of
2
Tommeraasen testified that he felt “a little bit” high but did not feel “the full
effects” of the methamphetamine he used the previous night. Trial Tr. 1067.
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someone it improperly found was a co-conspirator; (3) the district court erred in
failing to take remedial steps after the Government violated the witness sequestration
order; and (4) the evidence of Cathey’s prior felony convictions was insufficient.
A.
Cathey’s “verdict will be upheld if there is any interpretation of the evidence
that could lead a reasonable jury to convict.” Seals, 915 F.3d at 1205 (citation
omitted). To prove distribution causing serious injury or death under 21 U.S.C.
§ 841(a)(1), the Government must show that (1) the defendant knowingly or
intentionally distributed drugs; and (2) the victim died or sustained a serious bodily
injury caused by using the drugs. Lewis, 895 F.3d at 1009. As with Phillips, only
the second element is at issue here. Either “but-for” cause or “independently
sufficient” cause is enough to sustain the conviction. Burrage, 571 U.S. at 218–19.
To convict Cathey of the conspiracy charges under 21 U.S.C. § 846, the
Government had to prove that (1) two or more persons agreed to distribute a
controlled substance; (2) Cathey knew the agreement’s purpose; and (3) Cathey
knowingly and voluntarily joined it. See United States v. King, 898 F.3d 797, 808
(8th Cir. 2018). “No explicit agreement is required; a tacit or implicit understanding
is sufficient.” Id. (citation omitted). To convict Cathey of the underlying drug
distribution charge under 21 U.S.C. § 841(a)(1), the Government had to prove that
Cathey knowingly and intentionally distributed a controlled substance. See United
States v. Nichols, 808 F.2d 660, 663 (8th Cir. 1987).
Cathey’s first argument is that the evidence proffered to meet the elements of
each offense listed above was insufficient for one reason: the evidence “consisted
of the testimony of cooperating witnesses which was incredible and insubstantial on
its face.” Cathey Br. 12. Cathey’s argument consists of a cornucopia of reasons
why the witnesses the Government put on against him were untrustworthy.
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Cathey overlooks the fact that the “jury’s credibility determinations are
virtually unreviewable on appeal.” United States v. Shumaker, 866 F.3d 956, 960
(8th Cir. 2017) (citation omitted). Plus, a “jury verdict may be based solely on the
testimony of cooperating witnesses.” King, 898 F.3d at 808 (citation omitted). Even
“conflicting evidence offered at trial affords no basis for reversal” without more.
United States v. Reddest, 512 F.3d 1067, 1071 (8th Cir. 2008).
Cathey’s alternative argument relies on Burrage to say that even if the drugs
he distributed contributed to injury and death, they were not a but-for cause of that
injury and death. But, like Phillips, Cathey misunderstands the meaning of but-for
cause. The drugs Cathey distributed did not need to be the sole cause of injury or
death; the drugs needed only to be one link in the chain of events necessary for the
injury or death to occur. See Myers, 965 F.3d at 938–39. Cathey’s heroin was a
necessary link in every injury and death in his case. Cathey’s suggestion that we
should squint hard enough to obscure that fact is essentially a request that we
reweigh the evidence in his favor. But that is not our role. United States v. Piwowar,
492 F.3d 953, 956 (8th Cir. 2007) (“[W]e have no right to usurp the jury’s role to
judge the facts and make credibility findings.”) (citation omitted).
Cathey’s challenge to the sufficiency of the evidence lacks supporting
authority. Viewing the evidence in the light most favorable to the verdict, the
evidence of Cathey’s guilt was sufficient.
B.
Cathey also takes issue with the district court’s admission of out-of-court
statements made by Hofer to her friend, Nicole Hollaar. We review the district
court’s decision to admit out-of-court statements made in furtherance of a conspiracy
“for an abuse of discretion, keeping in mind that its discretion is particularly broad
in a conspiracy trial.” Myers, 965 F.3d at 939 (citation omitted).
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An out-of-court statement is not hearsay if it is offered against the defendant
in a conspiracy case and it is a statement that the defendant’s co-conspirator made
during and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E). To admit
such statements, the Government must “demonstrate by a preponderance of the
evidence” that (1) “a conspiracy existed”; (2) “the defendant and the declarant were
members of the conspiracy”; and (3) “the declaration was made during the course
and in furtherance of the conspiracy.” United States v. King, 351 F.3d 859, 865 (8th
Cir. 2003) (citation omitted).
Cathey argues that (1) he was not a member of a conspiracy; (2) Hofer and
Hollaar were not members of the same conspiracy with him if one existed; and (3) a
buyer/seller relationship does not suffice to prove a conspiracy. Based on these three
contentions, Cathey says the district court abused its discretion. Section III.A of this
opinion explains why Cathey’s argument against his membership in the conspiracy
fails, so we move on to the remaining two.
As to Cathey’s second contention, we note that Hollaar—the witness on the
stand—did not need to be in the conspiracy with Cathey for the statement against
Cathey to be admitted because she was not the statement’s declarant. 3 Hofer was
the declarant when she told Hollaar that Cathey was her drug source. Statements
about a co-conspirator’s source of drugs satisfy the “in furtherance” requirement.
United States v. Arias, 252 F.3d 973, 977 (8th Cir. 2001). The record reveals that
Hofer was a co-conspirator at the point when Cathey started fronting her heroin daily
and Hofer in turn resold that heroin to others until she had enough money to buy
heroin from Cathey for her own use. Hofer had already testified to that effect before
Hollaar took the stand, which laid the necessary foundation for finding that Hofer
and Cathey were members of the same conspiracy.
3
We also note that the record establishes that Hollaar was a member of the
conspiracy in any case. See Trial Tr. 800–09.
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With respect to Cathey’s final contention, the connection between Hofer and
Cathey was no longer a mere buyer/seller relationship at the time that Hofer made
the statement to Hollaar. When Hofer told Hollaar that Cathey was the source of
Hofer’s drugs, Hofer—the declarant—was a co-conspirator in a drug distribution
scheme with Cathey—the defendant—in which she was reselling Cathey’s heroin to
her own buyers. That is enough to pass muster under King and Arias. The district
court did not abuse its discretion by admitting Hofer’s statements to Hollaar.
C.
Cathey next challenges the district court’s decision to let Hollaar correct her
prior testimony after she was confronted by the Government’s counsel and the case
agent—another testifying witness. The district court determined that the
Government’s contact with Hollaar was “not improper,” but the court nonetheless
decided the correct remedy to any possible violation of its sequestration order was
to “limit[] Hollaar’s further testimony to correcting her prior false statements.” D.
Ct. Dkt. 140 at 6.
We review the district court’s ruling that the government did not breach the
sequestration order for “abuse of discretion, granting wide latitude to the court and
requiring the moving party to show prejudice.” United States v. Engelmann, 720
F.3d 1005, 1012 (8th Cir. 2013) (citation omitted). If a court determines that its
sequestration order was violated, it still has “wide latitude in deciding how to
respond to the impropriety.” United States v. Calderin-Rodriguez, 244 F.3d 977,
985 (8th Cir. 2001).
Cathey’s argument is that the district court’s decision not to exclude Hollaar’s
later testimony was prejudicial. But the proper showing of prejudice is elusive on
this record. Hollaar’s corrected testimony was obviously prejudicial to Cathey
because it provided further evidence of his guilt, but that prejudice did not arise from
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the Government’s tampering with or coaching a witness.4 Even assuming without
deciding that a violation took place, it would have been harmless “in view of the
mountain of damaging evidence against” Cathey. Id. Plus, Hollaar was called back
to testify in order to allow the Government to correct prior testimony it knew to be
false—which it was required to do under United States v. White. 724 F.2d 714, 717
(8th Cir. 1984). The court limited Hollaar’s testimony to that purpose and Cathey
“had an opportunity to fully cross-examine Hollaar” when she took the stand again.
D. Ct. Dkt. 140 at 5–6.
Cathey cites no legal authority for his argument that the district court abused
its discretion when it chose these responses to any supposed violation of the
sequestration order. The sole distinguishing fact Cathey points to—Hollaar’s receipt
of immunity in return for correcting her testimony—is a distinction from Calderin-
Rodriguez without a difference. The district court did not abuse its discretion.
D.
Finally, we consider Cathey’s argument that the records of his convictions
introduced at sentencing were unreliable. We review the district court’s
determination that the Government proved that Cathey had prior felony convictions
for clear error. United States v. Pratt, 553 F.3d 1165, 1169 (8th Cir. 2009). We
4
We have previously said that prejudice can be established by showing “that
the contact resulted in the tailoring of witness testimony to that of earlier witnesses
or the development of less than candid testimony which Rule 615 seeks to prevent.”
United States v. Kindle, 925 F.2d 272, 276 (8th Cir. 1991). But neither happened in
this case. Hollaar corrected her false statements in order to develop more candid
testimony and thereby permit the Government to comply with its obligations. And
the Government witness who was at Hollaar’s post-testimony interview, Agent Jorge
Carrasco, was the case agent who later offered testimony on the details of the
investigation and general patterns of drug use and distribution. Trial Tr. 1332–78.
Because those are “completely different issues that did not overlap” with Hollaar’s
corrected testimony that she personally knew and bought heroin from Cathey, we
conclude there was no prejudice of the sort our caselaw prohibits. United States v.
Collins, 340 F.3d 672, 681 (8th Cir. 2003).
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grant the district court “wide discretion at sentencing as to the kind of information
considered or its source.” Id. at 1170 (citation omitted).
At Cathey’s sentencing hearing, a United States Probation Officer testified
that Cathey’s prior convictions were connected to him through his fingerprints by
the National Crime Information Center. Cathey says the certified copies of criminal
convictions that were introduced, standing alone, were insufficient to meet the
Government’s burden because in prior cases we have required such documents to be
accompanied by “other identifying information.” Cathey Br. 23 (citing United
States v. Sanchez-Garcia, 461 F.3d 939, 948 (8th Cir. 2006)). Without additional
evidence like photos, Cathey says, the district court’s finding that the Government
met its burden was clearly erroneous.
We disagree. We have said before that any evidence with “sufficient indicia
of reliability to support the conclusion that it is probably accurate” can be considered
by the district court at sentencing. Sanchez-Garcia, 461 F.3d at 948 (citation
omitted). We also noted in United States v. Urbina-Mejia that the NCIC fingerprint
database is reliable enough and the documents it produces can be sufficient evidence
of prior convictions, even standing alone. 450 F.3d 838, 840 (8th Cir. 2006). Like
Cathey, Urbina-Mejia mounted a challenge against the way the Government proved
his prior criminal history at sentencing. He argued that because the Government
offered only certified convictions obtained via the NCIC and never inspected the
fingerprints used in the NCIC, the district court’s reliance on the NCIC report was
clearly erroneous. Id. We rejected that argument, explaining that “while [the
appellant] is entitled to put the government to its burden, he provide[d] no evidence
that the NCIC [fingerprint] report is unreliable” and so we concluded that “[g]iven
the testimony and evidence . . . the district court did not clearly err.” Id.
In the absence of evidence undermining their reliability, the officer’s
testimony and the records of Cathey’s convictions obtained through the NCIC were
enough for the Government to carry its burden. The district court did not clearly err.
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IV.
The judgment of the district court is affirmed.
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