United States v. Michael Stevenson ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3224
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Stevenson
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Dubuque
____________
Submitted: June 19, 2020
Filed: November 4, 2020
____________
Before LOKEN and GRASZ, Circuit Judges, and CLARK,1 District Judge.
____________
LOKEN, Circuit Judge.
A jury convicted Michael Stevenson of five controlled substance offenses,
three of which he admitted committing in his opening statement and trial testimony.
The district court sentenced Stevenson to 200 months imprisonment. On appeal, he
1
The Honorable Stephen R. Clark, Sr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
argues the evidence was insufficient to convict him of conspiring to distribute heroin
and cocaine base (“Count 1”) and of distributing heroin on or about February 1, 2017
(“Count 2”). He further argues the district court2 erred in rejecting his challenge to
the government’s peremptory strike of the only prospective juror of color, see Batson
v. Kentucky, 476 U.S. 79 (1986); and abused its discretion in responding to a
question from the jury during its deliberations. We affirm.
I. Sufficiency of the Evidence.
Stevenson argues the jury lacked sufficient evidence to convict him of the
offenses charged in Counts 1 and 2. “We review the sufficiency of the evidence in
the light most favorable to the verdict, upholding the verdict if a reasonable factfinder
could find the offense proved beyond a reasonable doubt, even if the evidence
rationally supports two conflicting hypotheses.” United States v. Morris, 791 F.3d
910, 913 (8th Cir. 2015) (cleaned up).
A. The Count 1 Conspiracy Charge. Stevenson argues the evidence was
insufficient because the government introduced “no specific evidence that Mr.
Stevenson had conspired, i.e. reached an agreement or understanding with anyone to
distribute heroin or crack cocaine.” An agreement to join a conspiracy need not be
explicit, it may be inferred from the facts and circumstances of the case. United
States v. Conway, 754 F.3d 580, 587 (8th Cir.), cert. denied, 574 U.S. 1054 (2014).
“It is settled in our circuit that the evidence is sufficient to support a conspiracy [to
distribute] where the drugs were purchased for resale.” United States v. Slagg, 651
F.3d 832, 842 (8th Cir. 2011) (cleaned up).
2
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
-2-
The government’s trial witnesses included Chad Leitzen, an investigator with
the Dubuque, Iowa Drug Task Force, and E.N., a confidential informant (“CI”)
working with Leitzen. E.N. testified that in late 2016 she began purchasing heroin
from a new dealer named “Lo.”3 When Lo inadvertently left his Illinois identification
card in E.N.’s car, E.N. sent Leitzen a picture of the card, which identified Stevenson
by name. On the morning of February 2, 2017, Leitzen responded to a 911 call that
an unresponsive man, A.B., had been found with a needle in his arm and was cold to
the touch. A.B. was transported to a hospital where he died. A toxicology report
found heroin in his bloodstream. A.B. had been released from jail on January 3,
2017. In his room, officers found a digital scale, syringes, a ZTE cell phone, an
Alcatel One Touch cell phone, marijuana, methamphetamine, and heroin.
Accessing the ZTE phone, Leitzen saw “Lo” listed as a contact, leading him
to suspect Stevenson was A.B.’s source of heroin. The Alcatel phone contained
numerous text messages between A.B. and Stevenson, all of which were admitted into
evidence. Six days after his release from jail, A.B. texted Stevenson, “Man, I really
appreciate you helping out. I really need to get rolling again bro. Starting off new
always sucks.” Stevenson replied, “The quicker you grind, the quicker you shine,”
and “Just gotta work be patient and smart.” Leitzen surmised they were discussing
A.B. distributing drugs for Stevenson. The texts reflected that, on two occasions,
3
Stevenson argues the district court erred in admitting E.N.’s hearsay testimony
that another heroin user told E.N. she knew a person who could get heroin from
Stevenson. The court conditionally admitted this testimony and later ruled it
admissible as a co-conspirator statement made during and in furtherance of the
conspiracy. See United States v. Bell, 573 F.2d 1040 (8th Cir. 1978); Fed. R. Evid.
801(d)(2)(E). The issue is not properly before us because Stevenson did not include
it in his statement of the issues presented for review. See Fed. R. App. P. 28(a)(5);
United States v. Mejia-Perez, 635 F.3d 351, 353-54 (8th Cir. 2011). In any event, we
agree with the government that any error was harmless given the overwhelming
evidence supporting the Count 1 conviction. See United States v. Erickson, 610 F.3d
1049, 1054 (8th Cir. 2010).
-3-
Stevenson sold A.B. a half-gram of heroin on a “player deal,” a cheaper price
reserved for drug dealers. On January 13 and January 18, A.B. asked Stevenson for
a full gram to distribute to acquaintances. Leitzen testified a gram quantity is
consistent with distribution. On January 26, Stevenson texted A.B., “Hot fresh tasty
pizza straight out the oven.” Leitzen identified this as a message Stevenson sent to
tell potential heroin customers he had acquired a new supply.
J.W., another CI working with Leitzen, testified that he initially met Stevenson
when he delivered heroin J.W. purchased from Michael Greenwood. Eventually, J.W.
ordered heroin directly from Stevenson. J.W. knew heroin addict A.B. for several
years; they occasionally pooled money to purchase heroin from Stevenson. After
A.B.’s death, J.W. resumed buying heroin from Stevenson. On multiple occasions,
someone else delivered the heroin. After one transaction, Stevenson called J.W. to
tell him his payment was $5 short.
S.S., another CI managed by Leitzen, testified that, in August 2017, she
informed Leitzen she had purchased cocaine base from a dealer named “Mike-Mike,”
whom she later identified as Stevenson. S.S. initially purchased cocaine base from
a man named Rick, who turned out to be Stevenson’s roommate. Stevenson
sometimes delivered cocaine base to S.S. She would call either Stevenson or Rick
to arrange a purchase. One of them would deliver, regardless whom she called.
Stevenson testified in his own defense. He admitted selling heroin and cocaine
base but denied working with anyone. He admitted driving out of state to purchase
heroin and cocaine base in bulk that he distributed in Dubuque. He admitted
committing three charged distribution offenses involving heroin and cocaine base.
The testimony of Stevenson and the government’s cooperating witnesses was
more than sufficient evidence for a reasonable jury to convict him of Count 1.
Stevenson’s testimony alone was likely all the jury needed to convict. See Slagg, 651
-4-
F.3d at 840-42. But there was far more. If the jury found S.S. credible, her testimony
established that Stevenson conspired with roommate Rick to distribute cocaine base.
Stevenson’s text messages with A.B. were evidence that A.B. distributed heroin for
Stevenson. J.W. testified that Stevenson worked with Greenwood to deliver heroin
and collect drug proceeds. The jury was presented substantial evidence that
Stevenson and multiple persons agreed to distribute heroin and cocaine base. See
United States v. Mayfield, 909 F.3d 956, 963 (8th Cir. 2018), cert. denied, 139 S. Ct.
2628 (2019). “We have repeatedly upheld jury verdicts based solely on the testimony
of co-conspirators and cooperating witnesses.” Morris, 791 F.3d at 913 (cleaned up).
Stevenson further argues the government failed to establish that he participated
in a conspiracy between January and September 2017, the period charged in the
indictment. This contention is without merit. “A variance between the date set forth
in the indictment and the proof at trial is not fatal as long as the acts alleged were
committed within the statute of limitations and before the date of the indictment.”
United States v. Harris, 344 F.3d 803, 805 (8th Cir. 2003), cert. denied, 540 U.S.
1201 (2004). It is undisputed that the acts in question occurred within the five-year
statute of limitations, see 18 U.S.C. § 3282(a), and before the indictment issued on
June 26, 2018.
B. The Count 2 Distribution Charge. Count 2 alleged that Stevenson
distributed heroin on or about February 1, 2017, the day before A.B. died. The
government’s strongest evidence of distribution that day was evidence that Stevenson
sold the heroin found in A.B.’s bloodstream. Stevenson argues the evidence was
insufficient for a reasonable the jury to find that Stevenson distributed heroin to A.B.
on or about February 1. Stevenson admitted selling to A.B. but denied doing so on
February 1; he testified he had not talked to A.B. for some time prior to his death.
On January 26, 2017, Stevenson texted A.B., “Hot fresh tasty pizza straight out
the oven.” Stevenson admitted picking up a new supply of heroin at the end of
-5-
January, precipitating the “hot fresh tasty pizza” text to A.B. The testimony of Leitzen
and J.W. reconstructed events leading up to A.B.’s death on the morning of February
2 from information on J.W.’s phone and A.B.’s Alcatel phone. At 4:43 p.m. on
February 1, J.W. texted A.B., “Let’s go half and half,” which he explained meant
splitting the cost of a half-gram of heroin. A.B. responded at 4:47, “I’ll c luk [let you
know].” At 4:48, A.B. texted Stevenson, “What up man u good.” Stevenson
responded at 4:52 with “Wat you tryna do”? After a phone call with Stevenson at
4:53, A.B. texted J.W. at 4:56, “When u ready?” J.W. did not respond. A.B. sent
another message: “? so 35_35 I’m down he ready.” J.W. testified “35_35” meant
each of them would pay $35 for a half-gram of heroin; J.W. believed “he ready”
referred to Stevenson because A.B. had bought heroin only from Stevenson since his
release from jail. At 5:17, A.B. sent J.W. another text, “What up man u wanna do
quick or no?” J.W. never responded and did not buy heroin with A.B. that day.
Viewing this evidence in the light most favorable to the verdict, we conclude
a reasonable jury could find that Stevenson distributed heroin to A.B. on or about
February 1. A.B. distributed heroin for Stevenson after his release from jail in
January. J.W. testified that A.B. acquired heroin only from Stevenson. Stevenson
texted A.B. on January 26 that he had a new supply of heroin. On February 1, J.W.
asked A.B. if he wanted to share a heroin purchase, as they had done before. A.B.
expressed interest and sent Stevenson a text asking, “u good.” After A.B. talked with
Stevenson by phone, he texted J.W. they could acquire a half-gram of heroin for $70.
Though J.W. did not participate in the transaction, the jury could infer from these
exchanges that A.B. then purchased heroin from Stevenson without J.W.’s
involvement. Cf. United States v. Garcia, 646 F.3d 1061, 1067 (8th Cir. 2011). The
jury was free to disregard Stevenson’s denials, particularly when his claim that he had
not communicated with A.B. for some time prior to February 1 was contradicted by
the phone records. That A.B. might have acquired the heroin found in his bloodstream
the morning of February 2 from another supplier does not preclude us from
upholding the jury’s verdict. See Morris, 791 F.3d at 914.
-6-
II. The Batson Issue.
In Batson, the Supreme Court held that the Equal Protection Clause of the
Fourteenth Amendment prohibits the use of peremptory challenges to strike jurors
solely on the basis of race. 476 U.S. at 85-88. During jury selection, Stevenson
objected that the government improperly struck prospective juror N.R., an African-
American man, based on his race. In ruling on this objection, the district court
applied the well-established three-step process to determine whether a peremptory
strike was racially motivated:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question; and third, in light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quotation omitted). Because factual
findings underlying this ruling “turn largely on credibility evaluations,” we review
the district court’s determination for clear error, affording it “great deference.”
United States v. Ellison, 616 F.3d 829, 832 (8th Cir. 2010).
After the government struck N.R., Stevenson objected that N.R. was the only
prospective juror of color, his pre-voir dire questionnaire responses were not “off
base or bad one way or the other,” and the government asked no questions during voir
dire. The district court concluded this made a prima facie case of a Batson violation.
The government responded that it struck N.R. for several reasons. In the
questionnaire, N.R. disclosed three prior law enforcement incidents, one that ended
in a conviction for assault. N.R. also stated that his brother had been charged with
“conspiracy.” He wrote: “While I appreciate the legal system at times I feel it can be
-7-
biased.” The government noted it learned of these reasons prior to knowing N.R.’s
race because the questionnaire did not ask for a prospective juror’s race. The
government also learned prior to voir dire that N.R. failed to disclose three other prior
convictions. Stevenson argued the government’s reasons were pretextual because
N.R. “indicated under oath that he would be able to fairly try this case” when he did
not raise his hand when the court asked if any prospective juror had strong feelings
about the criminal justice system that would make it impossible to sit as an impartial
juror. The district court denied the Batson challenge because the government
identified race-neutral reasons before it learned N.R.’s race in the courtroom. The
court reasoned, “The fact that the juror did not raise a hand or suggest that he was
biased in some way does not constitute evidence of the Government’s race-neutral
reason as somehow pretextual.”
On appeal, Stevenson argues the district court clearly erred in not finding the
government’s race-neutral reasons pretextual because the government “did nothing
to inquire further as to whether any of [N.R.’s] vague and ambiguous [questionnaire]
responses and statements justified use of a peremptory challenge.” We disagree. Our
prior decisions confirm that the government offered race-neutral reasons for its
peremptory strike of N.R. -- his prior conviction for assault, his brother’s prosecution
for conspiracy, and his failure to disclose he had a total of four prior convictions.
See, e.g., United States v. Johnson, 954 F.3d 1106, 1113 (8th Cir. 2020); United
States v. Crawford, 413 F.3d 873, 875 (8th Cir. 2005). Because the government
learned of these race-neutral reasons from N.R.’s questionnaire and criminal history,
it had no need to inquire further during voir dire. See United States v. Harding, 864
F.3d 961, 964 (8th Cir. 2017) (“a strike need not be premised on a juror’s statements
or reactions during voir dire.”). In these circumstances, its failure to inquire further
was not evidence of pretext. The district court did not clearly err in finding that
Stevenson failed to establish that the government’s “combination of reasons” was
pretextual. Crawford, 413 F.3d at 875.
-8-
III. The Jury Question Issue.
Count 2 charged that Stevenson distributed heroin on or about February 1,
2017. Count 3, which Stevenson admitted, charged that he distributed heroin on or
about February 2. During its deliberations, the jury submitted a note asking the
district court:
Can we get a clarification of “On or about”?
Ex. . . 2-3 hr window around midnight, or within a 1-2 day
period? If it is in reference to days then distinction between Counts 2
& 3 with overlapping days?
The district court and counsel for both parties found this question “puzzling.” Jury
Instruction 18 had properly instructed the jury, without objection:
You will note that the Indictment charges that the offenses were
committed “on or about” certain dates. The government need not prove
with certainty the exact date or the exact time period of the offenses
charged. It is sufficient if the evidence establishes that the offenses
occurred within a reasonable time of the date or period of time alleged
in the Indictment.
The district court noted that further clarification of Counts 2 and 3 appeared to be
unnecessary because “it’s clear Counts 2 and 3 are two distinct allegations. [The
jurors] have separate verdict forms for them. They’re in separate counts.” The court
proposed responding: “I have received your note, a copy of which is attached. Please
reread the instructions and continue to deliberate.” The government endorsed that
response. Stevenson urged the district court to clarify that “Counts 2 and 3 are
distinct allegations.” Defense counsel acknowledged that any response to the jury’s
question would have to avoid “making it seem like we’re defining ‘on or about.’”
-9-
The district court decided to use its proposed response, explaining it was
“hesitant” to address the difference between Counts 2 and 3 because -
the first sentence [of the jury’s question] requests us to define “on or
about.” . . . [I]f we then try to tell them that Counts 2 and 3 are distinct
counts, and try to emphasize that in some way, it appears to be
attempting to give them a further definition of ‘on or about,’ which
we’ve already defined in the instructions.
On appeal, Stevenson argues the court abused its discretion because its response
failed to remedy the jury’s underlying confusion. Because Count 2 and Count 3
alleged he distributed heroin “on or about” February 1 and 2, 2017, Stevenson argues
the jury could have been led by Instruction 18 to find “that the heroin distributions
alleged in Counts 2 and 3 were the same distribution.”
We review the district court’s response to a jury request for abuse of discretion,
recognizing that often a proper response is to “simply refer the jury back to the
original instructions.” United States v. Abdul-Aziz, 486 F.3d 471, 476 (8th Cir.
2007) (quotation omitted). Here, the court expressly addressed Stevenson’s concern.
The court concluded that its response was appropriate because the indictment, the
initial instructions, and the verdict forms clearly instructed the jury that Counts 2 and
3 were distinct charges, and any unnecessary further clarification could compromise
the proper definition of “on or about” in Instruction 18. There was no abuse of the
court’s substantial discretion in formulating jury instructions. See United States v.
Hayes, 574 F.3d 460, 482 (8th Cir. 2009).
The judgment of the district court is affirmed. We grant the unopposed motion
to expand the record on appeal to include documents considered by the district court
in ruling on the Batson objection.
______________________________
-10-