United States v. Burrage

• Decision Date: 06 August 2012
• Docket Number: No. 11–3602.,11–3602.
• Citation: 687 F.3d 1015
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Marcus Andrew BURRAGE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

687 F.3d 1015

UNITED STATES of America, Plaintiff–Appellee

v.Marcus Andrew BURRAGE, Defendant–Appellant.

No. 11–3602.

United States Court of Appeals,

Eighth Circuit.

Submitted: April 17, 2012.

Filed: Aug. 6, 2012.

Angela L. Campbell, argued, Des Moines, IA, for appellant.

John S. Courter, AUSA, argued, Rebecca Goodgame Ebinger, AUSA, on the brief, Des Moines, IA, for appellee.

Before BYE, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Marcus Andrew Burrage of distribution of heroin and distribution of heroin resulting in death, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court ¹ sentenced him to 240 months on each count, concurrently. Burrage appeals arguing the court erred by admitting hearsay testimony and denying his motions for judgment of acquittal and a new trial. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On November 17, 2009, Breanne Brown—a confidential informant—called Officer Jamie Miller of the Central Iowa Drug Task Force. She said she could purchase heroin that day from “Lil C.” Later that day Brown—who was cooperating with law enforcement after being found in possession of marijuana—conducted a controlled buy of heroin from Lil C. Officer Miller watched the buy. He testified at trial that he knew “Lil C” referred to Burrage and recognized him during the sale, but his written report did not list Burrage's name. An electronic device in Brown's purse recorded the transaction and transmitted the audio to the officers. The recording was played at trial. Burrage denied selling heroin to Brown and denied it was his voice on the recording.

Tammy Noragon Banka (“Noragon”) testified that she accompanied her husband, Joshua Banka, as he purchased one gram of heroin from “Lil C” on April 14, 2010. Banka used some of the heroin almost immediately. He fell asleep and she helped him home. He woke up around midnight, using heroin then and again around 5:00 a.m., when Noragon went to sleep. Waking up around 10:30 a.m., she found Banka dead in the bathroom, seated on the toilet, slumped into the shower. She called the police. Officers from the Nevada (Iowa) Police Department and the Iowa Division of Criminal Investigations responded and investigated. They found drug paraphernalia and a number of narcotics and prescription medications, including alprazolam, clonazepam, oxycodone, baclofen, heroin, and marijuana. Noragon testified that Banka was a long-time, multiple drug user and that she saw him use marijuana and oxycodone the day before he died.

Believing Banka's death was related to heroin, the local officers contacted the Drug Task Force, providing them with Noragon's physical description of the person who sold heroin to her husband. Officer Miller sent Burrage's photograph. In a photo lineup conducted by local police, Noragon identified Burrage as the man who sold heroin to Banka. At trial, Noragon again identified Burrage as Lil C.

Dr. Eugene Q. Schwilke, a forensic toxicologist, conducted toxicology tests on Banka's blood and urine. His tests detected multiple drugs, including morphine (a metabolite ² of heroin), 6–monoacetylmorphine (a metabolite of heroin), codeine (a likely impurity in the heroin), 7–aminoclonazepam (a metabolite of clonazepam), alprazolam, marijuana metabolites, and oxycodone. He testified that, in his opinion, heroin was a contributing factor to Banka's death, but he could not state that Banka would not have died if he had not taken heroin.

Dr. Jerri McLemore, with the State Medical Examiner's office, conducted Banka's autopsy. Relying on her physical examination of Banka and Dr. Schwilke's toxicology report, she certified the cause of death as “a mixed drug intoxication with the drugs contributing to death, including heroin, the oxycodone, the alprazolam and the clonazepam.” She further testified, “The morphine, the breakdown product of the heroin, was the only drug that was above the therapeutic range.” Dr. McLemore could not state that Banka would not have died if he had not taken heroin, but she did describe death without the heroin as “very less likely.”

At the close of the government's evidence, Burrage orally moved for judgment of acquittal under Federal Rule of Criminal Procedure 29, challenging the sufficiency of the evidence to sustain a conviction on either count. The district court denied the motion. Burrage orally renewed the motion at the close of his evidence. The district court again denied the it.

The jury returned a guilty verdict on both counts. Burrage moved for a new trial under Federal Rule of Criminal Procedure 33, alleging erroneous jury instructions and prosecutorial misconduct. The district court denied the motion.

II.

Burrage appeals the district court's denial of his motion for new trial. This court reviews the denial of a motion for new trial for an abuse of discretion. United States v. Louper–Morris, 672 F.3d 539, 559 (8th Cir.2012). “Reversal of a denial of a motion for new trial is rare.” Id., quoting United States v. Perez, 663 F.3d 387, 391 (8th Cir.2011).

A.

Burrage challenges the jury instructions related to 21 U.S.C. § 841(b)(1)(C), a penalty provision that increases the minimum sentence for distribution of heroin “if death or serious bodily injury results from the use of such substance.” (emphasis added). The district court instructed the jury:

INSTRUCTION NO. 10

ELEMENTS OF THE OFFENSE—COUNT TWO—DISTRIBUTION OF HEROIN RESULTING IN DEATH

The crime of distributing heroin resulting in death, as charged in Count Two of the Indictment, has three essential elements, which are:

1. On or about April 14, 2010, the Defendant intentionally distributed heroin; and

2. At the time of the transfer, the Defendant knew that it was heroin; and

3. A death resulted from the use of the heroin.

For you to find that a death resulted from the use of heroin, the Government must prove, beyond a reasonable doubt, that the heroin distributed by the Defendant was a contributing cause of Joshua Banka's death. A contributing cause is a factor that, although not the primary cause, played a part in the death[.]

For you to find the Defendant guilty of the crime charged under Count Two the Government must prove all of these essential elements beyond a reasonable doubt; otherwise you must find the Defendant not guilty of this crime under Count Two.

“This court reviews a district court's jury instructions for abuse of discretion and its interpretation of law de novo.” Kahle v. Leonard, 563 F.3d 736, 741 (8th Cir.2009). This court will affirm where the instructions, “taken as a whole, ... fairly and adequately instruct the jurors on the applicable law.” United States v. Spires, 628 F.3d 1049, 1053 (8th Cir.2011) (internal quotation marks and citations omitted). “Notably, a defendant is not entitled to a particularly worded instruction.” Id. (alterations and internal quotation marks omitted). This court “will reverse only if an error in the instructions was prejudicial.” United States v. Yielding, 657 F.3d 688, 708 (8th Cir.2011).

1.

Burrage argues that “results from” in § 841(b)(1)(C) requires a showing of “proximate cause.” At trial he requested three jury instructions to that effect.³ “A defendant is entitled to a proposed instruction that conveys the substance of his request if it is supported by the evidence in the case and is a correct statement of the law.' ” United States v. Petters, 663 F.3d 375, 384 (8th Cir.2011) (internal quotation marks and alterations omitted), quoting United States v. Gary, 341 F.3d 829, 834 (8th Cir.2003).

The district court did not err in rejecting Burrage's proximate cause instructions, because they do not correctly state the law. In United States v. McIntosh, 236 F.3d 968 (8th Cir.2001), this court held that a showing of “proximate cause” is not required under § 841(b)(1). Id. at 972–73. Burrage requests this court overrule McIntosh, but only the court sitting en banc can take that action. See Brock v. Astrue, 674 F.3d 1062, 1065 (8th Cir.2012).⁴

2.

Burrage contends that the district court erred by using “contributing cause” languageto define the statute's causation element. However, the instruction is consistent with this court's statement that § 841(b)(1)'s “results from” requirement is met by a “contributing cause.” United States v. Monnier, 412 F.3d 859, 862 (8th Cir.2005), post-conviction relief granted as to sentencing by718 F.Supp.2d 1040 (D.Neb.2010). In Monnier, the jury, given an instruction “akin to a proximate cause instruction,” convicted the defendant of distribution of methamphetamine that resulted in death in violation of § 841(b)(1)(A). The defendant appealed the sufficiency of the evidence. First, this court held that the proximate cause instruction did not accurately state the law after McIntosh.Id. at 861–62. However, it then affirmed the conviction because “pursuant to the district court's instruction the jury found proximate cause beyond a reasonable doubt, which necessarily means that it found contributory cause.” Id. at 862 (emphasis added). The court then defined “contributing cause” as “[a] factor that—though not the primary cause—plays a part in producing a result.” Id., quoting Black's Law Dictionary 212 (7th ed. 1999).

Burrage notes that the instructions used by the district court do not appear in the 2011 edition of the Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit. However, “[t]he Model Instructions ... are not binding on the district courts of this circuit, but are merely helpful suggestions to assist the district courts.” Bady v. Murphy–Kjos, 628 F.3d 1000, 1004 (8th Cir.2011) (alterations in Bady ),quoting United States v. Norton, 846 F.2d 521, 525 (8th Cir.1988).

Burrage also relies on United States v. Hatfield, 591 F.3d 945 (7th Cir.2010). In that case, the Seventh Circuit expressly rejected a jury instruction adopting the “contributing cause” language from Monnier, endorsed a jury...