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United States v. Shelton

United States District Court, E.D. Kentucky, Northern Division, Covington

October 4, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
JOHNNY L. SHELTON DEFENDANT

          MEMORANDUM OPINION AND ORDER

          David L. Bunning United States District Judge

         Defendant Johnny L. Shelton has filed three motions, which are currently pending before the Court: a Motion for a New Trial (Doc. # 256), Motion for Leave to File Motion for Acquittal Out of Time (Doc. # 266), and a Renewed Motion for Judgment of Acquittal (Doc. # 267). The Government has filed its Response to Defendant's Motion for a New Trial (Doc. # 261) and Response to Defendant's Motion for Acquittal (Doc. # 267). The time for further briefing under the Local Rules having expired, the motions are ripe for review. For the reasons stated herein, Defendant's Motions are denied.

         I. FACTUAL BACKGROUND

         On March 9, 2017, Defendant and three other individuals were indicted by a federal grand jury. (Doc. # 1). The Indictment charged Defendant with one count of conspiracy to “knowingly and intentionally distribute and possess with intent to distribute carfentanil, a Schedule II controlled substance, violations of 21 U.S.C. § 841(a)(1), ” resulting in death, “all in violation of 21 U.S.C. § 846.” Id. The charge stems from the October 15, 2016 overdose death of Defendant's fellow inmate, T.M., at a Boone County jail work camp. See (Doc. # 50).

         The trials of the alleged co-conspirators were severed, and Defendant's jury trial commenced on January 22, 2018. (Doc. # 180). At the close of the Court day, Defendant made an oral motion for new counsel. (Doc. # 183). The Court granted Defendant's motion, finding irreconcilable differences between Defendant and his appointed counsel. Id. In light of that ruling, the Court declared a mistrial. Id.

         Subsequently, the Court appointed new counsel and the matter proceeded to a second jury trial on June 18, 2018. (Doc. # 242). Upon the close of the Government's evidence, defense counsel orally moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. (Doc. # 245). Defense counsel conceded that the evidence showed there was an agreement to bring controlled substances such as cocaine and marijuana into the work camp; however, he argued that the Government did not present evidence of a conspiracy to distribute carfentanil as alleged in the Indictment. See (Trial Transcript, June 20, 2018). Denying the oral motion, the Court explained its reasoning on the record. (Doc. # 245). Specifically, the Court found that, viewing the evidence in the light most favorable to the Government, there was sufficient evidence from which a reasonable jury could convict Defendant of conspiring to “knowingly and intentionally distribute and possess with intent to distribute carfentanil” which resulted in death. See (Trial Transcript, June 20, 2018). Upon the close of the Defendant's evidence, defense counsel orally renewed Defendant's Rule 29 motion. (Doc. # 245). The Court denied the renewed motion on the same basis. Id.

         At the subsequent charge conference, defense counsel objected to Jury Instruction 14, which addressed conspiracy to violate drug laws under 21 U.S.C. § 846. See (Doc. # 246; Trial Transcript of June 21, 2018). While Instruction 14 was taken virtually verbatim from the Sixth Circuit's Pattern Instructions, see 6th Cir. Pattern Crim. Jury Instr. 14.05, defense counsel argued that the Court was required to modify the language regarding controlled substances due to the Government's particular wording of the Indictment. (Doc. # 1). The Indictment alleged that Defendant “did conspire together and with others to knowingly and intentionally distribute and possess with intent to distribute carfentanil, a Schedule II controlled substance, violations of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846.” Id. (emphasis added). Because the Indictment charged Defendant with conspiring to distribute and possess “carfentanil” specifically-rather than a “controlled substance” generally as set forth in 21 U.S.C. § 841(a)(1)-Defendant argued that the Court was required to replace references to “controlled substances” in Instruction 14 with “carfentanil.” (Doc. # 246). Defendant asserted that a constructive amendment of the Indictment would result if the Court instructed the jury that the alleged conspiracy was to distribute a “controlled substance” and not “carfentanil.” See (Trial Transcript of June 21, 2018).

         In response, the Government orally moved to continue the trial for twenty-four hours to allow the parties to submit memoranda on the issue. (Doc. # 246). The Court granted that motion and the charge conference resumed on June 22, 2018 following submissions from the parties. (Docs. # 247, 248, and 249). Defendant objected to two specific portions of Instruction 14 and submitted a Proposed Modified Instruction. (Doc. # 252). Following review of the parties' submissions, the Court overruled in part Defendant's objections.[1] (Doc. # 249).

         The first portion of the Sixth Circuit Pattern Instruction at issue provides that “[t]he indictment charges the defendant(s) with conspiracy to [insert object(s) of conspiracy].” 6th Cir. Pattern Crim. Jury Instr. 14.05(1). Defendant's Proposed Modified Instruction stated, “the Indictment charges the defendant with conspiracy to distribute carfentanil, a controlled substance, causing death. You are instructed that carfentanil is a controlled substance.” (Doc. # 252). The Court adopted this portion of Defendant's Proposed Modified Instruction in full. (Doc. # 253 at 16).

         The second portion of the Sixth Circuit Pattern Instruction at issue was the primary focus of Defendant's objection. Pattern Instruction 14.05(3)(B)(3) provides in relevant part that a finding of guilt “does not require proof that the defendant knew the drug involved was [name controlled substance]. It is enough that the defendant knew that it was some kind of controlled substance.” 6th Cir. Pattern Crim. Jury Instr. 14.05(3)(B)(3) (emphasis added). Defendant's Proposed Modified Instruction, in contrast, added a requirement of proof of Defendant's knowledge of the type of controlled substance: “[b]ased upon the Indictment as charged, this requires proof that the defendant knew the drug involved was carfenantil.” (Doc. # 252 at 2) (emphasis added). The Court rejected this portion of Defendant's proposal, and the jury was instructed in conformity with the Sixth Circuit Pattern Instruction 14.05(3)(B)(3) that “this does not require proof that the defendant knew the drug involved was carfentanil. It is enough that the defendant knew that it was some kind of controlled substance.” (Doc. # 253 at 17-18).

         During the course of jury deliberations, the jury returned a written question, asking, “[i]n terms of conspiracy, does distribution refer to carfentanil specifically or any controlled substance?” (Doc. # 254). The Court provided a written response that “[t]he Court refers you to Jury Instruction 14 at pages 17-18 of the instructions.” Id. This included the portion of the instruction that modeled Pattern Instruction 14.05(3)(B)(3), which stated that a finding of guilt “does not require proof that the defendant knew the drug was carfentanil . . . . It is enough that the defendant knew that it was some kind of controlled substance.” Id. (citing Doc. # 253 at 17-18). The jury then found Defendant guilty of the charge in the Indictment. (Doc. # 255).

         II. ANALYSIS

         A. Motion for New Trial

         In his Motion for New Trial (Doc. # 256), Defendant asserts that he is entitled to a new trial on two (2) main grounds. First, Defendant argues that the Court's reference to Instruction 14 in response to the jury's question did not fairly and adequately submit the issues and applicable law to the jury. Second, Defendant also argues that the evidence introduced by the Government at trial, and the language of Instruction 14, diverged from the charge set forth in the Indictment to create an improper constructive amendment to the Indictment-or, in the alternative, a prejudicial variance.

         1. Standard of Review

         Rule 33 of the Federal Rules of Criminal Procedure allows a defendant to request that any judgment be vacated and that a new trial be granted if the “interest of justice so requires.” Fed. R. Crim. P. 33. Generally, a new trial is unwarranted unless a defendant demonstrates that a “substantial legal error” occurred during the proceedings. United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015) (quoting United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010)). Any legal error that is significant enough to require reversal on appeal is an adequate ground for granting a new trial. Munoz, 605 F.3d at 373 (quoting with approval United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004)). The burden, however, is high. ...


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