United States v. Teria Anderson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2361
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERIA L. ANDERSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cr-00158-SEB-TAB-8 — Sarah Evans Barker, Judge.
____________________
ARGUED OCTOBER 26, 2020 — DECIDED FEBRUARY 19, 2021
____________________
Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. For years, Teria Anderson sold large
quantities of heroin to drug dealers and end users in the Indi-
anapolis area. A jury eventually found Anderson guilty of two
drug charges—distributing a controlled substance and con-
spiracy to distribute. The jury also found that Anderson had
caused “serious bodily injury” to an end user who overdosed
on her drugs; that finding exposed her to an enhanced
2 No. 19-2361
sentence. In the end, however, the court imposed a below-
guidelines term of 300 months’ imprisonment.
On appeal, Anderson’s primary arguments take issue with
her distribution conviction and the applicability of the
serious-bodily-injury enhancement. She also contends that
the court erred when it applied a two-level leadership
enhancement to her guidelines range. She urges that her
distribution conviction should be vacated because it was
based on an aiding-and-abetting theory of liability that was
unsupported by the evidence. And if we vacate her
distribution conviction, Anderson continues, we must also
vacate her serious-bodily-injury enhancement, because it is
impossible to tell from the jury’s verdict whether that
enhancement applied only to her flawed distribution
conviction, only to her unchallenged conspiracy conviction,
or to both. We agree with Anderson on both grounds. We
therefore vacate her distribution conviction and her sentence
and remand to the district court for resentencing on the
conspiracy conviction without the serious-bodily-injury
enhancement.
I
Anderson was active in Indianapolis’s illegal drug busi-
ness for several years. In 2016 she encouraged a friend, Mi-
chael Sublett, to join her in selling heroin. Sublett agreed and
the two settled into a pattern: Anderson would furnish be-
tween 100 and 200 grams of heroin to Sublett once or twice a
month; Sublett would sell the drugs; and he then would pay
Anderson back. In other words, most of these transactions in-
volved “fronting.” Occasionally Sublett also stored large
quantities of heroin (500 to 600 grams) for Anderson, some-
times for weeks at a time.
No. 19-2361 3
After buying the drugs, Sublett cut them with sleeping-aid
medication to increase the total amount available for sale. To
distribute the heroin, Sublett primarily used two retail-level
sellers, one of whom was Frankie Ray. Ray typically took be-
tween 100 and 200 grams per transaction. Sublett fronted her-
oin to Ray at least once. In May 2017, Anderson provided Sub-
lett with an orange-tannish colored heroin that Sublett nick-
named “Kansas City.” Sublett used Ray to distribute the new
product.
Two events are particularly relevant to this appeal. First,
on May 30, 2017, Ray sold heroin to one of his regular retail
customers, Ian Buchanan. The next day, Buchanan locked
himself in his bathroom, overdosed, and temporarily stopped
breathing. Paramedics revived Buchanan using Narcan and
then took him to the hospital. After he was released the next
day, he called Ray and told Ray that he had overdosed on the
Kansas City heroin. Ray replied, “That Kansas City smack
ain’t no joke, huh?” Buchanan confirmed, “Naw, man, that
sh*t don’t f**k around, bro’.”
The second event occurred on June 29, 2017. That week,
Anderson left Indianapolis to go on vacation. Before she de-
parted, she arranged for her uncle, whom she called
“Preacher,” to supply Sublett with heroin during her absence.
The day of the handoff, Anderson instructed Sublett to go to
Preacher’s house to pick up 200 grams of heroin. They dis-
cussed logistics on the phone: Sublett told Anderson to tell
Preacher that he would arrive in ten minutes in a white truck.
Sublett called Anderson again when he arrived. Anderson
confirmed that she was going to tell Preacher to come out to
meet Sublett. Preacher’s phone was off, however, and so An-
derson instead instructed Sublett that he was “gonna have to
4 No. 19-2361
go up” to the house. Sublett did so, obtained the drugs from
Preacher, and then called Anderson to confirm that he had
completed the pickup.
Anderson was arrested on July 10, 2017. On August 9,
2017, a grand jury indicted Sublett, Ray, and five other de-
fendants on eight counts of distributing, possessing, and con-
spiring to distribute heroin. A superseding indictment later
added Anderson to the conspiracy count and one distribution
count. (She was also charged with and convicted of a third
offense, possession of a firearm by a convicted felon, in viola-
tion of 18 U.S.C. § 922(g)(1). This count was later dismissed
when it came to light after trial that Anderson did not have a
prior felony conviction, and so we disregard it here.)
Count One of the superseding indictment charged
Anderson, Sublett, Ray, and the other defendants with
conspiring to distribute 1,000 grams or more of heroin, in
violation of 21 U.S.C. § 846. Count Two charged Anderson
with aiding and abetting the distribution of heroin that
occurred on May 30, 2017—that is, the sale to Buchanan that
resulted in his overdose—in violation of 21 U.S.C. § 841(a)(1).
The indictment also included a sentencing enhancement for
the offenses charged in Counts One and Two based on
Buchanan’s suffering “serious bodily injury” from his
overdose. See 21 U.S.C. § 841(b)(1)(A). Anderson’s co-
defendants all pleaded guilty.
Anderson went to trial and was convicted on both charges.
For the serious-bodily-injury enhancement, the verdict form
asked the jurors whether, “[w]ith respect to Count One,
Count Two, or both … the government has proven beyond a
reasonable doubt Ian Buchanan suffered serious bodily injury
and that the serious bodily injury … resulted from the use of
No. 19-2361 5
heroin distributed by Defendant Teria Anderson.” The jury
responded: “Yes.”
At sentencing, the district court determined that
Anderson’s total offense level was 42 and her criminal history
category was II, resulting in a guidelines range of 360 months
to life. That range was influenced both by the serious-bodily-
injury finding and by the judge’s decision to apply a two-level
“leadership” enhancement under U.S.S.G. § 3B1.1(c) to her
offense level, based on her coordination of the June 29 drug
pickup between Preacher and Sublett. As we noted, the judge
ultimately selected a below-guidelines sentence of 300
months for her. This appeal followed.
II
A
Anderson first challenges the sufficiency of the evidence
to support her conviction on Count Two, which charged her
with distributing heroin to Ian Buchanan on May 30, 2017. In
a sufficiency-of-the-evidence challenge after a jury verdict, we
review the evidence presented at trial in the light most favor-
able to the government and draw all reasonable inferences in
its favor. United States v. Grayson Enters., Inc., 950 F.3d 386, 405
(7th Cir. 2020). We will overturn a conviction only if, after re-
viewing the record in this light, we determine that no rational
trier of fact could have found the essential elements of the of-
fense beyond a reasonable doubt. Id. We have described this
burden as “nearly insurmountable.” United States v. Faulkner,
885 F.3d 488, 492 (7th Cir. 2018). But the word is “nearly,” not
“completely,” and this case illustrates one way in which a de-
fendant can prevail.
6 No. 19-2361
The record contains no evidence that Anderson herself
distributed heroin to Buchanan on May 30, nor was that the
government’s theory. Instead, it relied on an aiding-and-
abetting theory to link Anderson to the substantive offense. A
person who “aids, abets, counsels, commands, induces or
procures” the commission of a federal offense “is punishable
as a principal.” 18 U.S.C. § 2(a). To be liable under section 2(a),
a person must (1) take an affirmative act in furtherance of the
offense with (2) the intent of facilitating the offense’s
commission. Rosemond v. United States, 572 U.S. 65, 71 (2014).
At trial, the government essentially argued that anyone in
a drug distribution chain could qualify for aiding-and-
abetting liability. Thus, it reasoned, Anderson was liable for
the May 30 distribution because she sold the heroin to Sublett,
who then sold it to Ray, who finally sold it to Buchanan.
In so arguing, the government erred. We find instructive
Judge Learned Hand’s opinion in United States v. Peoni, 100
F.2d 401 (2d Cir. 1938), which has long been endorsed as an
accurate explication of federal aiding-and-abetting liability.
See Rosemond, 572 U.S. at 70; United States v. Pino-Perez, 870
F.2d 1230, 1235 (7th Cir. 1989) (en banc).
Peoni held that where A sells contraband to B, and B sells
the same item to C, A is not an accessory to crimes committed
by C solely by virtue of her sale to B. This is true even if A
knows that B is likely to sell the contraband to some other (un-
known) guilty possessor. To be liable for C’s substantive of-
fense on an aiding-and-abetting theory, A must “associate”
herself with C’s offense and “participate in it as something
that [s]he wishes to bring about.” Peoni, 100 F.2d at 402. In
other words, A must exhibit a “purposive attitude” toward
C’s specific offense. Id. Where A sells contraband to B and
No. 19-2361 7
receives money in return, it is “of no moment” to A whether
B uses the contraband himself or passes it on to another. A’s
“connection with the business” ends with the completed sale.
Id. A might be an accessory to B’s crime, but without more to
demonstrate an association with C’s offense, she is not an ac-
cessory to C. Id. at 403. Judge Hand might as well have been
talking about the case before us: Anderson is A, Sublett is B,
and Ray is C.
The offense charged in the superseding indictment was
Ray’s distribution of heroin to Buchanan on May 30. To show
that Anderson is guilty under an aiding-and-abetting theory,
the government had to prove that she “affirmative[ly] act[ed]
in furtherance of” Ray’s sale to Buchanan and intended to fa-
cilitate the commission of that sale. Rosemond, 572 U.S. at 71.
The record here supports neither proposition. There is no ev-
idence that Anderson knew Ray or Buchanan, knew that their
transaction occurred, or even cared whether it occurred.
“[W]here the relationship between the defendant’s acts and
the ultimate crime for which [s]he is charged is as attenuated
as it is” here, we cannot sustain a finding of guilt based on an
aiding-and-abetting theory absent “some showing of specific
intent to aid in, or specific knowledge of, the crime charged.”
United States v. Greer, 467 F.2d 1064, 1069 (7th Cir. 1972). None
of that appears in this record.
Anderson’s interest in the heroin she sold to Sublett ex-
tended only up to the point when Sublett paid her—no fur-
ther. Sublett could have used Anderson’s heroin for himself,
or he could have sold it to another drug dealer or end user.
Anderson had no stake in what Sublett did next. And alt-
hough the government presented evidence that Anderson
fronted heroin to Sublett, there was no evidence that
8 No. 19-2361
Anderson fronted anything to Ray, nor even whether she
fronted to Sublett the particular batch of heroin that Ray later
sold to Buchanan on May 30. We can assume that the record
supported a finding that Anderson conspired with Sublett
and aided and abetted Sublett’s drug-distribution activities,
given the extensive fronting and mutual support between the
two. But there is no evidence from which a rational trier of
fact could conclude that Anderson aided and abetted the May
30 transaction between Ray and Buchanan. We therefore va-
cate Anderson’s sentence on Count Two.
B
Anderson contends that if we reverse her distribution con-
viction, we logically must vacate her entire sentence and re-
mand for resentencing without the serious-bodily-injury en-
hancement. The problem is, she argues, that the verdict form
failed to make clear to which conviction the enhancement ap-
plied: Conspiracy? Distribution? Both? The answer to that
question matters. At stake is whether Anderson will be subject
to a resentencing range of 10 years to life on her basic conspir-
acy conviction, or a range of 20 years to life on the aggravated
offense of conspiracy resulting in serious bodily injury.
Whether a drug offense results in serious bodily injury is
an element of an aggravated offense under 21 U.S.C.
§ 841(b)(1)(A) and so must be found beyond a reasonable
doubt by a unanimous jury. Burrage v. United States, 571 U.S.
204, 210 (2014); Richardson v. United States, 526 U.S. 813, 817
(1999). Normally, when a verdict form delineates distinct ver-
dicts for each offense, it is easy to see what the jury found
unanimously. When, however, a jury issues a general verdict
on a duplicitous count or enhancement—i.e., one that refers to
multiple underlying offenses—a risk arises that the verdict
No. 19-2361 9
“conceals a finding of guilty as to one crime and a finding of
not guilty as to another.” United States v. Margiotta, 646 F.2d
729, 733 (2d Cir. 1981). The problem is acute when one of the
underlying offenses is later found legally insufficient on ap-
peal.
We have just such a case here. The jury issued a general
verdict on the serious-bodily-injury enhancement. The ver-
dict form read as follows:
With respect to Count One, Count Two, or both, we the
jury, find that the government has proven beyond a
reasonable doubt Ian Buchanan suffered serious bodily
injury and that the serious bodily injury suffered by
Buchanan resulted from the use of heroin distributed
by Defendant Teria Anderson. (Emphasis added.)
As this verdict is worded—“Count One, Count Two, or
both”—we have no way of discerning whether the jury
unanimously found that Buchanan’s injury resulted from
Anderson’s conspiracy conviction (Count One), her (now-
vacated) distribution conviction (Count Two), or both of
them. Any of those outcomes is possible on this record. For
example, the jury might have found Anderson guilty of
conspiracy based on events that had no connection to
Buchanan and thus have connected Buchanan’s serious
bodily harm only to the distribution offense. Or the jury might
have found that but for the conspiracy, Anderson’s heroin
would not have caused Buchanan’s serious bodily injury, no
matter how Buchanan wound up with her product. Or it
might have found the necessary link for both the conspiracy
and the distribution counts. We simply don’t know. Nor did
the judge’s verbal jury instructions add any clarity. The judge
repeatedly instructed the jury to find the enhancement
10 No. 19-2361
applicable if serious bodily injury resulted from either “Count
One or Count Two.” We therefore find that the jury’s verdict
concerning the serious-bodily-injury enhancement was
ambiguous. This does not strike us as a close call.
Anderson did not object to the verdict form in the district
court. We thus would normally review this point only for
plain error. Here, however, there is an additional considera-
tion: the government has not argued in this court that Ander-
son’s (and its own, and the court’s) failure to spot this prob-
lem caused Anderson to forfeit it. The government has thus
forfeited whatever benefit it may have reaped from Ander-
son’s forfeiture. See United States v. Kimberlin, 781 F.2d 1247,
1252 n.2 (7th Cir. 1985). To the extent it matters, we add that
in our view the ambiguity in the form was a plain error that
violated Anderson’s substantial right to a unanimous jury
verdict. See, e.g., United States v. Lapier, 796 F.3d 1090, 1098
(9th Cir. 2015).
At oral argument, the government conceded that “if Count
Two is vacated, the case should be remanded for resentencing
… precisely because of th[e] ambiguity in the jury verdict.”
Oral Arg. at 25:21–32. This constitutes a waiver on its part of
any other relief that might have been available. See United
States v. Cunningham, 405 F.3d 497, 504 (7th Cir. 2005). Accord-
ingly, we vacate Anderson’s entire sentence and remand to
the district court for resentencing.
Our conclusion is not undermined by the fact that the jury
might have concluded, if given the chance, that whether
viewed through the lens of conspiracy in Count One or the
lens of distribution in Count Two, Anderson caused serious
bodily injury. We offer no opinion on that point. This is not a
sufficiency-of-the-evidence appeal. Instead, we face an
No. 19-2361 11
analytically prior question: whether, as a matter of historical
fact, the jury unanimously found an element at all (in a form
that is available to us). Richardson, 526 U.S. at 817; cf. Sullivan
v. Louisiana, 508 U.S. 275, 280 (1993). It did not. Since we can-
not reconvene the jury to probe its thinking further, on re-
mand the district judge must sentence Anderson only for the
surviving conspiracy conviction, without the enhancement
for serious bodily injury.
Nor do we need to delve into Anderson’s contention that
the serious-bodily-injury enhancement is independently ob-
jectionable on hearsay grounds. We note only that this was by
no means a frivolous argument. On the one hand, the govern-
ment had relied on out-of-court statements that Buchanan
made about the source of the heroin that led to his overdose.
The government relied on the co-conspirator exception to the
hearsay rule, but it now concedes that there was no proof that
Buchanan and Anderson were in a conspiracy together. It also
contends that Buchanan’s statements provide context for
Ray’s statements, and that Ray was a co-conspirator. But
Ray’s statements prove nothing. On the other hand, Anderson
failed to object on hearsay grounds to this line of evidence,
and so we would be required to evaluate this argument only
for plain error. We think it best to leave this matter alone, since
it does not affect the outcome of the appeal.
C
Anderson’s final argument is that the district court erred
when, in the course of computing the advisory guidelines of-
fense level, it applied the two-level leadership enhancement
based on Anderson’s role in the June 29 drug handoff between
Preacher and Sublett. See U.S.S.G. § 3B1.1.
12 No. 19-2361
Section 3B1.1 sets forth a three-tiered enhancement
scheme for a defendant who plays an aggravating role in an
offense:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more partici-
pants or was otherwise extensive, increase by 4 lev-
els.
(b) If the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise
extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager,
or supervisor in any criminal activity other than de-
scribed in (a) or (b), increase by 2 levels.
U.S.S.G. § 3B1.1. At Anderson’s sentencing, the probation of-
fice recommended a three-level enhancement, but the court
ruled that only a two-level adjustment was proper.
The purpose of the enhancement is to divide participants
according to their “relative culpability … in the criminal en-
terprise.” United States v. Weaver, 716 F.3d 439, 442 (7th Cir.
2013). The application note to section 3B1.1 offers seven fac-
tors that are relevant to the question whether a leadership en-
hancement is appropriate: (1) the exercise of decision-making
authority; (2) the nature of participation in the commission of
the offense; (3) the recruitment of accomplices; (4) the claimed
right to a larger share of the fruits of the crime; (5) the degree
of participation in planning or organizing the offense; (6) the
nature and scope of the illegal activity; and (7) the degree of
control or authority exercised over others. U.S.S.G. § 3B1.1 ap-
plication note 4. A participant in a criminal enterprise
No. 19-2361 13
qualifies as a “supervisor” or “manager” if she “tells people
what to do and determines whether they’ve done it.” United
States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012). In addition,
for the enhancement to apply, there must be “ongoing super-
vision, not a one-off request from one equal to another during
the course of the criminal activity.” Weaver, 716 F.3d at 444.
Whether viewed as a factual matter, calling for clearly er-
roneous review, or a legal interpretation, calling for de novo
review, the district court’s decision was appropriate. Alt-
hough the June 29 pickup was a single transaction, we have
explained that singular events are not categorically excluded
from qualifying for the section 3B1.1 enhancement. United
States v. Collins, 877 F.3d 362, 367 (7th Cir. 2017). We agree
with the government that Anderson’s direction of the events
of June 29 exceeded the degree of control and coordination in
one-time transactions where we have found the enhancement
improper. See, e.g., United States v. Colon, 919 F.3d 510, 517–19
(7th Cir. 2019) (collecting cases). Anderson prearranged logis-
tics with Preacher. Then, throughout the June 29 pickup, she
maintained near-constant contact with Sublett, providing
step-by-step instructions for obtaining the drugs. After deliv-
ery, Sublett called Anderson to confirm receipt.
This adds up to more than a mere referral “from one equal
to another.” Weaver, 716 F.3d at 444. Anderson directed and
coordinated the entire delivery; Preacher and Sublett exer-
cised very little discretion over the manner in which the of-
fense unfolded. For the purposes of section 3B1.1, “[o]rches-
trating or coordinating activities performed by others makes
a particular defendant a manager or supervisor.” United States
v. Martinez, 520 F.3d 749, 752 (7th Cir. 2008). Thus, the district
14 No. 19-2361
court did not err in finding the two-level enhancement appli-
cable.
* * *
Anderson’s conviction on Count Two and her sentencing
enhancement for serious bodily injury are VACATED and the
case is REMANDED for resentencing in accordance with this
opinion.