United States v. Hamm

• Citation: 952 F.3d 728
• Decision Date: 06 March 2020
• Docket Number: Nos. 17-6383/18-5121,s. 17-6383/18-5121
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wesley Scott HAMM (17-6383); Robert Lee Shields (18-5121), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

952 F.3d 728

UNITED STATES of America, Plaintiff-Appellee,

v.Wesley Scott HAMM (17-6383); Robert Lee Shields (18-5121), Defendants-Appellants.

Nos. 17-6383/18-5121

United States Court of Appeals, Sixth Circuit.

Argued: March 19, 2019

Decided and Filed: March 6, 2020

ARGUED: Michael M. Losavio, Louisville, Kentucky, for Appellant in 17-6383. Thomas C. Lyons, LAW OFFICES OF THOMAS C. LYONS, Lexington, Kentucky, for Appellant in 18-5121. Francesco Valentini, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant in 17-6383. Thomas C. Lyons, LAW OFFICES OF THOMAS C. LYONS, Lexington, Kentucky, for Appellant in 18-5121. Francesco Valentini, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gary Todd Bradbury, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Before: BOGGS, GIBBONS, and BUSH, Circuit Judges.

BOGGS, Circuit Judge.

By the summer of 2016, Wesley Hamm had already been addicted to opioids for a decade and, as his tolerance grew, he settled into a new routine. Each day, he made the two-hour drive from his hometown of Mt. Sterling, Kentucky to Cincinnati, where he typically bought several grams of fentanyl. When he returned to Mt. Sterling, he and his wife used some of the drug themselves and gave the rest to their roommate, Tracey Myers, a local drug dealer. Myers diluted, divided, and sold her share.

Late that August, Hamm found a new Cincinnati supplier: Robert Shields. Myers advertised Shields’s offerings to one of her customers. A few hours after Hamm returned from a visit to Shields and gave Myers her usual share, Myers sold three small packets of opioids to a man we will call L.K.W. Later that night, L.K.W. died of an overdose. Police officers quickly traced L.K.W.’s drugs back to Myers, and they arrested her and Hamm.

The story did not end there. After her arrest, Myers smuggled her remaining drugs into the county jail. She gave them to three of her cellmates, who soon lost consciousness. Paramedics arrived quickly enough that all three women survived. Myers died by suicide a week later.

In the aftermath, a jury convicted Hamm and Shields of one count of conspiracy to distribute controlled substances and two counts of distributing carfentanil. See 21 U.S.C. §§ 841(a)(1), 846. On the latter two counts, the jury applied a statutory sentencing enhancement for distribution resulting in death or serious bodily injury. See id. § 841(b)(1)(C). This triggered a mandatory minimum sentence of twenty years for Hamm and a mandatory life sentence for Shields (who had a prior felony drug conviction).

On appeal, Hamm and Shields challenge the jury instructions on the § 841(b)(1)(C) sentencing enhancement, a remark in the prosecutor’s closing argument, and the sufficiency of the evidence on all counts. While the evidence is sufficient to sustain their convictions and the prosecutor’s remark was not prejudicial, the jury instructions on the sentencing enhancement misstated the law. We therefore affirm Hamm and Shields’s convictions, vacate their sentences, and remand for a new trial solely on the question of whether to apply § 841(b)(1)(C) ’s sentencing enhancement on the distribution counts.

I. Background

The record does not reveal how Hamm and Shields met, but their first transaction happened around August 22, 2016. By this time, Hamm (sometimes accompanied by Myers or Hamm’s wife Jennifer¹ ) was already making daily trips to Cincinnati to buy fentanyl from another supplier. Hamm, his wife, and Myers were impressed by what Shields was selling. Myers told customers that Shields’s drugs were "supposed to be 1000000 times better than what we was getting," and one of the customers responded to Myers that Hamm had said the new drugs were "the best [he] ha[d] ever done." The Hamms also told a former supplier that they were no longer interested in his inferior offerings.

The next Hamm–Shields transaction happened on August 24. The Hamms and Myers had run out of drugs, and Myers was turning prospective buyers away. At 8:30 that morning, Hamm texted Shields to inform him:

I am completely dry. Got Nada, zip, nothing. Need to get wit ya .... Call me when you get this so I know whether or not I need to make other arrangements, which might I add, I’m not trying to do. People already loving the shit outta this stuff.

Hamm and Shields spoke on the phone, and Hamm and his wife recruited a friend to drive them to Cincinnati. Myers stayed in Mt. Sterling, telling her customers to wait for the Hamms to return. Early in the afternoon, Hamm and Shields met, and Hamm bought four or five grams of what he thought was fentanyl.

On the way back to Mt. Sterling, the Hamms’ friend sampled the purchase. As cell-phone videos show, he became distressed, incoherent, and unresponsive; Jennifer believed he was overdosing. The Hamms drove their friend to a hospital, but after they arrived at the hospital, they decided to take him back to Mt. Sterling instead of taking him inside.

When they got home, Hamm kept some of the drugs and gave the rest to Myers. That evening, Myers sold drugs to L.K.W. The purchaser and his girlfriend were regular heroin users, and Myers was their only dealer. Myers sold L.K.W. three small packets, which his girlfriend thought contained "low grade heroin." L.K.W. and his girlfriend each took a dose, and they gave the third packet to a friend.

After taking the drugs, L.K.W.’s girlfriend immediately "started feeling tingly all over ... and then started losing [her] hearing." A minute later, she "passed out," and she was unconscious for three to four hours. When she woke up, she found L.K.W. "knelt down ... beside the bed with his hand on [her] stomach ... and his head was laying down." She "picked his head up, and blood just poured out of his nose." She called 911. A police officer was the first to arrive. He gave L.K.W. naloxone

, a medication that can temporarily reverse the effects of an opioid overdose. This had no effect.

When paramedics arrived, L.K.W. was "lying [on] the floor unresponsive, not breathing, no pulse ... no sign of life." They tried CPR, chest compressions, a breathing tube

, and epinephrine, but "[n]othing would work," and he gave "[n]o response." L.K.W. never regained consciousness. Meanwhile, the friend who took the third packet was "in and out of consciousness," but survived.

The medical examiner later determined that L.K.W. died of "acute carfentanil and methamphetamine intoxication." Carfentanil, a synthetic opioid, is similar in action to other opioids like fentanyl

and morphine (a major component in heroin) but it is much more potent. At trial, the medical examiner testified that carfentanil was about "10,000 times stronger than morphine."²

L.K.W’s overdose was one of twelve in Montgomery County on the evening of August 24 and the early morning of August 25—an unprecedented number in such a short time. Local police officers quickly traced L.K.W.’s drugs back to Myers. Police arrested Myers for drug trafficking and Hamm on outstanding warrants on August 25.

Myers confessed to having sold what she thought was either heroin or fentanyl to L.K.W. the previous night. Hamm admitted that he had bought what he believed to be fentanyl the day before, kept some for himself, and given the rest to Myers. He identified Shields as his supplier and agreed to make several recorded calls to him. The investigators had Hamm arrange a meeting with Shields for the next day, ostensibly to buy more drugs. DEA agents arrested Shields when he arrived for the meeting on August 26. Shields told the agents that he had recently sold about fifteen grams of fentanyl.

On August 27, three women overdosed in the Montgomery County Jail. Myers was their cellmate, and she had smuggled her remaining drugs into the jail when she was arrested. She had apparently given doses to her cellmates, and they lost consciousness soon after.

One of the women woke up about three hours later, but the other two did not. When guards finally realized what had happened, they summoned paramedics, who administered naloxone

and CPR. One of the women had stopped breathing, had no pulse, and her face had even changed colors. She also had a stroke. According to the emergency-room doctor who treated them, the two women who did not wake up "probably would have died" if the paramedics had arrived any later. All three of Myers’ cellmates tested positive for carfentanil, which "present[ed] a substantial risk ... of death," according to the government’s toxicology expert. Myers died by suicide a week later.

A grand jury indicted Shields, Hamm, and Jennifer. Jennifer pled guilty to conspiracy to distribute controlled substances; she testified against her husband and Shields and received a 23-month sentence. Shields and Hamm went to trial, and the jury convicted them on one count of conspiracy to distribute controlled substances (Count 1) and two counts of distributing carfentanil (Counts 2 and 3). On the latter two counts, the jury applied statutory sentencing enhancements for drug distribution resulting in L.K.W.’s death (Count 2) and serious bodily injury to Myers’s three cellmates (Count 3). See 21 U.S.C. § 841(b)(1)(C). The district court sentenced Hamm to 35 years in prison and Shields to life.

II. Sufficiency of the Evidence

Hamm and Shields challenge the sufficiency of the evidence on numerous grounds. We will address this issue first, as it determines whether there can be a retrial if their other arguments succeed. See United States v. Parkes , 668 F.3d 295, 300 (6th Cir. 2012). We hold that the evidence is sufficient to sustain Hamm’s and Shields’s convictions and the 21 U.S.C. § 841(b)(1)(C) sentencing enhancement.

In sufficiency-of-the-evidence challenges, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."...