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Conviction of Drug Peddler for Causing Death of Customer Must Be Reversed—Ninth Circuit
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed a man’s conviction for distributing fentanyl resulting in death because text messages between the defendant and the victim were improperly admitted into evidence in violation of the hearsay rule.
District Court Judge Larry A. Burns of the Southern District of California admitted the communications between drug supplier Perry Davis and his customer, Joseph Chambers, under a rule permitting non-hearsay party-opponent statements.
“[B]ut that rule applies only to parties,” the memorandum opinion points out. “Chambers was not a party; he was the victim.”
Penal Interest
Even so, the government contended, statements by Chambers were admissible as being against his penal interest. The panel—comprised of Ninth Circuit Judge Kenneth Kiyul Lee and Senior Judge Jay S. Bybee, joined by Second Circuit Judge Barrington D. Parker Jr., sitting by designation—disagreed, saying:
“As to the first, only two of the twenty-seven messages between Chambers and Davis that the district court admitted even arguably related to illegal activity, and neither did so ‘in a real and tangible way.’ Both are from December 4. 2019. In the first. Chambers asks ‘Hey what’s up with that G spot,’ an apparent reference to a gram of cocaine. Later that day Chambers asked, ‘Did u get a price?’ which in context could be considered drug related. The remainder of Chambers’s text messages were not admissible…as they were purely logistical such as ‘Leaving now...20 min away’ and ‘On my way to channel 2.’ ”
The government argued further that the communications did not amount to hearsay because they were offered not to prove the truth of a matter asserted, but only for context. The panel rejected that theory.
Three Reasons
It explained:
“This argument founders for three reasons. First, the Federal Rules of Evidence provide no free-floating ‘context’ exception to its hearsay rules. Second, if the texts were offered for ‘context.’ then the district court failed to give a limiting instruction to advise the jury that the texts were not offered for the truth of what they contained….Third, and most importantly, the Government in fact offered the text messages as substantive evidence linking Davis to the drugs sold to Chambers and to the parking lot where Chambers died.”
Elaborating on the third point, the opinion says:
“The Government drove this point home in its closing argument where it contended that the text messages showed ‘there’s not simply two friends partying together, sharing cocaine together. This is a dealer and a customer. He’s negotiating with him.’ ”
Burns also admitted a surveillance video showing Chambers succumbing in a parking lot. He rebuffed an objection without first looking at the video, which lasted about one minute.
Rule 403
The motion was made under Rule 403 of the Federal Rules of Evidence, an analogue of California’s Evidence Code §352, calling for exclusion of evidence where its prejudicial effect outweighs its probative value.
The panel said:
“[I]t was error for the district court not to review the video before admitting it. Because we are reversing and remanding for a new trial due to the erroneously admitted text messages, we need not address the Government’s argument that the… error was harmless. Having now seen the video, the district court can make a proper 403 ruling at the new trial.”
Burns was sentenced to 20 years in prison, the mandatory minimum under 21 U.S.C. § 841(b)(1)(C) which says that “if death or serious bodily injury results from the use of” fentanyl, sold by the defendant, the defendant “shall be sentenced to a term of imprisonment of not less than twenty years or more than life.”
The case is United States v. David, 22-50058.
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