United States v. Mark Himmelberger

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11284
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK HIMMELBERGER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cr-00141-RV-2
____________________
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2 Opinion of the Court 21-11284
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Mark Himmelberger appeals his
convictions for conspiracy to distribute and possess with intent to
distribute, and distribution of, fifty or more grams of
methamphetamine. On appeal, Himmelberger argues that the
district court abused its discretion when it declined to give his
requested jury instruction relating to the amount of
methamphetamine. After careful review, we affirm.
I. FACTUAL BACKGROUND
A. Indictment and Trial Evidence
An indictment charged Himmelberger with (1) conspiracy
to distribute and possess with intent to distribute “50 grams or
more of methamphetamine, its salts, isomers, and salts of its
isomers,” in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) and
846; and (2) distribution of “50 grams or more of
methamphetamine, its salts, isomers, and salts of its isomers,” in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 18 U.S.C. § 2.
At trial, DEA agent David Wilson testified that a
cooperating source used $1,500 to purchase two bags of
methamphetamine from Himmelberger at a controlled buy in a
Cracker Barrel parking lot in Pensacola. Shortly afterward,
another agent arrested Himmelberger. Wilson took the two bags
to the DEA office and then sent them to the lab for testing.
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Patricia Burn-Posada, a forensic chemist with the DEA,
testified that she analyzed the contents of the bags seized from the
Cracker Barrel drug exchange. Burn-Posada first took a portion
of the substance from each of the bags and ran a series of tests.
After concluding that the material inside the bags was
methamphetamine and that the purity of the substance in each
bag was almost equal, she combined the contents of the bags and
calculated the net weight.
Burn-Posada then conducted a purity analysis, which
concluded that the substance was d-methamphetamine
hydrochloride, had a net weight of 123.8 grams, plus or minus 0.2
grams, and that 98%, plus or minus 6 percentage points, of the
123.8-gram sample was pure methamphetamine. Thus, the
amount of pure methamphetamine in the sample was between
113.8 grams and 124 grams, which was more than twice the 50
grams that Himmelberger was charged with. 1 Burn-Posada stated
that pure methamphetamine like that indicated in her tests is
sometimes referred to as “ice.”
On cross-examination, Burn-Posada explained that she
concluded the two bags’ purity was similar before combining
1 In a report that chemist Burn-Posada prepared describing the results of her
analysis, the amount of pure substance in the combined bags was 121.3
grams plus or minus 7.5 grams. Because the total net weight was 123.8
grams plus or minus .2 grams, the amount of pure substance is 113.8–124
grams. Himmelberger did not object to Burn-Posada’s report being admitted
into evidence.
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them because a preliminary test yielded the salt form of
methamphetamine, which would not happen unless the
substance is almost in its pure form. Burn-Posada was confident
that there was no cutting agent or adulterant in the
methamphetamine.
B. Jury Charge Conference
Himmelberger and the government proposed different
versions of the verdict form relating to the quantity of
methamphetamine. The government proposed that, for each
count, the jury be given the option to determine whether the
offense involved:
(1) “Fifty (50) grams or more of methamphetamine, its salts,
isomers, and salts of its isomers”;
(2) “Five (5) grams or more, but less than fifty (50) grams, of
methamphetamine, its salts, isomers, and salts of its isomers”;
or
(3) “Less than five (5) grams of methamphetamine, its salts,
isomers, and salts of its isomers.”
The government’s proposed jury charge tracked the relevant part
of the § 841(b) penalty provisions for the charged §841(a) offenses
here: distribution of methamphetamine, its salts, isomers, and
salts of its isomers, and conspiracy to do the same, as set forth in
the indictment.
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Himmelberger proposed that, for each count, the jury
instead be asked to determine whether the offense involved
(1) methamphetamine, its salts, isomers, and salts of its isomers,
or (2) a mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, and salts of its isomers, as
follows:
(1) “Fifty (50) grams or more of methamphetamine, its salts,
isomers, and salts of its isomers or 500 grams or more of a
mixture and substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its
isomers”;
(2) “Five (5) grams or more of methamphetamine, its salts,
isomers, and salts of its isomers or 50 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its
isomers”; or
(3) “Less than five (5) grams of methamphetamine, its salts,
isomers, and salts of its isomers or less than 50 grams of a
mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its
isomers.”2 (Emphasis added).
2 Himmelberger’s proposed instructions used both “mixture and substance”
and “mixture or substance.” In this opinion, we will refer to all three
instructions collectively as his proposed “mixture or substance” instructions,
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At the charge conference, Himmelberger argued that his
proposed jury instructions tracked the language in the charged
penalty statute, 21 U.S.C. § 841(b)(1)(A)(viii), which refers both to
(1) actual methamphetamine and (2) mixtures or substances
containing a detectable amount of methamphetamine.
Himmelberger argued that whether the methamphetamine he
possessed was 50 grams of actual methamphetamine or 50 grams
of a mixture or substance containing a detectable amount of
methamphetamine could affect the statutory penalties and thus
was an element of the offense that the jury needed to find beyond
a reasonable doubt.
The district court responded that “the charge is
methamphetamine[,] [t]he evidence is that it’s ice,” and
Himmelberger was “not charged with a mixture.” The district
court stated that it was confusing to include the “mixture”
language and that to do so would change the charged crimes.
The district court declined to give Himmelberger’s proposed jury
instructions.
C. Verdict and Sentence
After deliberation, the jury found Himmelberger guilty on
both counts and found that his crimes both involved 50 grams or
more of methamphetamine, its salts, isomers, and salts of its
isomers. Himmelberger moved for a new trial, arguing that the
as the penalty statute lists this phrase in the disjunctive. See 21 U.S.C.
§ 841(b)(1)(A)(viii), (b)(1)(B)(viii).
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failure to include the methamphetamine mixture language in the
jury charge deprived him of a fair trial. The district court denied
his motion.
The district court sentenced Himmelberger to 120 months’
imprisonment on each drug-conviction count, to be served
concurrently.
Himmelberger timely appealed.
II. DISCUSSION
A. Applicable Law as to Jury Instructions
A district court's refusal to give a requested jury instruction
is not grounds for reversal unless (1) the requested instruction
was substantively correct, (2) the court’s charge to the jury did
not cover the gist of the instruction, and (3) the failure to give the
instruction substantially impaired the defendant’s ability to
present an effective defense. United States v. Lebowitz, 676 F.3d
1000, 1014 (11th Cir. 2012). 3 “[A] district court may refuse to give
a confusing jury instruction, and the charge as a whole must
accurately reflect the law in the context of a case’s facts.” United
States v. Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021)
(cleaned up). A constitutional error in the district court’s jury
instructions is harmless if “it appears beyond a reasonable doubt
3 This Court reviews de novo whether jury instructions are correct
statements of law, but it reviews the district court’s refusal to give a
requested jury instruction only for abuse of discretion. United States v.
Mayweather, 991 F.3d 1163, 1174 (11th Cir. 2021).
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that the error complained of did not contribute to the verdict
obtained.” Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827,
1837 (1999) (quotation marks omitted).
Other than a prior conviction, any fact that increases the
statutory minimum or maximum penalty of a crime is an element
that must be submitted to a jury and proven beyond a reasonable
doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
2362-63 (2000); Alleyne v. United States, 570 U.S. 99, 103, 133
S. Ct. 2151, 2155 (2013).
B. Statutory Penalties for Methamphetamine Offenses
Federal drug-trafficking offenses, including conspiracy and
substantive distribution of a controlled substance, 21 U.S.C.
§§ 841(a)(1), 846, are punished under the statutory penalty
scheme in 21 U.S.C. § 841(b). See 21 U.S.C. §§ 841(b), 846. For
methamphetamine offenses, the statutory scheme is as follows:
(1) Ten years to life imprisonment for an offense involving “50
grams or more of methamphetamine, its salts, isomers, and
salts of its isomers or 500 grams or more of a mixture or
substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its
isomers,” id. § 841(b)(1)(A)(viii) (emphasis added);
(2) Five to forty years’ imprisonment for an offense involving
“5 grams or more of methamphetamine, its salts, isomers,
and salts of its isomers or 50 grams or more of a mixture or
substance containing a detectable amount of
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21-11284 Opinion of the Court 9
methamphetamine, its salts, isomers, or salts of its
isomers,” id. § 841(b)(1)(B)(viii) (emphasis added); and
(3) Up to 20 years’ imprisonment for amounts smaller than
those listed in subsection (b)(1)(B)(viii), see id.
§ 841(b)(1)(C).
Himmelberger’s indictment charged that he conspired to
distribute, conspired to possess with intent to distribute, and did
distribute, 50 grams of methamphetamine, its salts, isomers, or
salts of its isomers. The indictment did not charge that he
conspired to distribute, conspired to possess with intent to
distribute, or distributed, 500, 50, or less than 50 grams of a
mixture or substance containing a detectable amount of
methamphetamine.
C. Himmelberger’s Proposed “Mixture or Substance” Jury
Instructions
The district court did not abuse its discretion by declining
to give Himmelberger’s proposed “mixture or substance” jury
instructions. While the language of his proposed instructions did
track the statutory penalty scheme for methamphetamine-
trafficking offenses, Himmelberger’s instructions were not
applicable to his charged offenses based on the trial evidence. See
Mayweather, 991 F.3d at 1183. The indictment charged
Himmelberger with offenses involving 50 grams or more of
actual methamphetamine, and did not include any allegations
about a mixture or substance containing a detectable amount of
methamphetamine. And DEA chemist Burn-Posada testified that
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the amount of actual methamphetamine in the bags that
Himmelberger sold to the cooperating witness was more than
twice the charged 50 grams. Thus, the district court did not abuse
its discretion in declining to add the “mixture or substance”
language to the jury instructions, as it was not applicable in the
factual context of his charged crimes or the trial evidence and
could have confused the jury. See id.
In addition, the district court’s refusal to give
Himmelberger’s proposed jury instructions did not substantially
impair his ability to present a defense, because he was able to
argue that his offenses did not involve the charged 50 grams or
more of actual methamphetamine. See Lebowitz, 676 F.3d at
1014. On cross-examination, Himmelberger questioned the
reliability of DEA chemist Burn-Posada’s forensic analysis,
pointing out that the two bags of methamphetamine were
commingled before she tested them and that she did not test the
entire sample. The jury could have discredited Burn-Posada’s
testimony and found that the two bags contained less than 50
grams of actual methamphetamine. Of course, the jury did find
that Himmelberger’s crimes involved 50 grams of
methamphetamine, but not because he was in any way prevented
from defending against the crimes with which he was charged.
Himmelberger argues that, because an offense involving 50
grams of actual methamphetamine results in a ten-year
mandatory minimum, 21 U.S.C. § 841(b)(1)(A)(viii), while an
offense involving 50 grams of a mixture containing
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methamphetamine results in a five-year mandatory minimum, id.§ 841(b)(1)(B)(viii), whether the amount of methamphetamine
was actual or part of a mixture is an element of the offense that
must be submitted to the jury. See Alleyne, 570 U.S. at 103, 133
S. Ct. at 2155. But Himmelberger was not charged with offenses
involving a 50-gram mixture containing a detectible amount of
methamphetamine. He was charged with crimes involving 50
grams or more of actual methamphetamine. That 50-gram
quantity of actual methamphetamine was an element of his
crimes, see id., and it was charged in his indictment and found
beyond a reasonable doubt by the jury. Thus, Himmelberger was
properly subjected to the mandatory minimum penalties in
§ 841(b)(1)(A)(viii), and no Alleyne error occurred.
Although we hold that the district court did not err under
Alleyne, we conclude in the alternative that Himmelberger’s
alleged error was harmless beyond a reasonable doubt. See
Neder, 527 U.S. at 15, 119 S. Ct. at 1837.
The jury heard testimony, and saw a report, from DEA
chemist Burn-Posada showing that the methamphetamine seized
from Himmelberger weighed at least 123.6 grams and was at least
92% pure, meaning his offense involved more than 113 grams of
actual methamphetamine. Our Court has approved these types
of calculations. The penalty statute does not require the amount
of methamphetamine in the first category (non-mixture or
substance) to be pure. See United States v. Frazier, 28 F.3d 99,
101 (11th Cir. 1994) (explaining that the amount of actual
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methamphetamine can be determined “through multiplying the
purity of the mixture by its weight”).
In Frazier, the defendant was convicted of possession with
intent to deliver methamphetamine and sentenced to the
mandatory minimum penalty of 20 years’ imprisonment in
§ 841(b)(1)(A)(viii), 4 based on the finding that his offense involved
enough methamphetamine to satisfy the statute’s first category
(non-mixture or substance). Id. at 100. Frazier possessed 441
grams of a substance that was 37 percent methamphetamine,
which calculated to 163 grams of methamphetamine contained
within the mixture. Id. Frazier argued that § 841(b)(1)(A)(viii) did
not apply because he possessed a mixture or substance whose
total weight did not meet the statutory “mixture or substance”
threshold—the second category in the penalty statute—for the
highest mandatory minimum. Id. This Court held that, even
though it was contained within a mixture, Frazier possessed
enough actual methamphetamine—the first category in the
penalty statute—to trigger the enhanced penalty. Id. at 101.
In short, (1) the trial evidence showed Himmelberger’s
offenses involved more than double the 50 grams of actual
methamphetamine that the jury needed to find and there was no
cutting agent or adulterant in it, and (2) Himmelberger presented
4Frazier was subject to a 20-year mandatory minimum, as opposed to the 10-
year penalty at issue here, because he had a prior felony drug conviction.
Frazier, 28 F.3d at 100; see 21 U.S.C. § 841(b)(1)(A)(viii) (1992).
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no evidence contradicting the government’s chemist expert. It
“appears beyond a reasonable doubt” that the district court
declining to include Himmelberger’s proposed “mixture or
substance” instructions “did not contribute to the verdict
obtained.” Neder, 527 U.S. at 15, 119 S. Ct. at 1837 (quotation
marks omitted).
Accordingly, we affirm Himmelberger’s convictions and
sentences.
AFFIRMED.