United States v. McKenzie , 686 F. App'x 77 ( 2017 )

15-4144-cr
United States v. McKenzie
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 12th day of April two thousand seventeen.
Present:
PETER W. HALL,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. 15-4144-cr
CARLOS MCKENZIE,
Defendant-Appellant.*
For Appellee: MONICA J. RICHARDS, Assistant United States Attorney,
for James P. Kennedy, Acting United States Attorney for
the Western District of New York, Buffalo, New York.
For Appellant: JOHN A. KUCHERA, Waco, Texas.
* The Clerk is respectfully directed to amend the caption to conform with the above.
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15-4144-cr
United States v. McKenzie
Appeal from a judgment of the United States District Court for the Western
District of New York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Carlos McKenzie appeals from his conviction for conspiring to possess with
intent to distribute and distribution of a controlled substance in violation of 21
U.S.C. § 846. We assume the parties’ familiarity with the underlying facts, the
procedural history, the district court’s rulings, and the arguments presented on
appeal.
McKenzie lodges three challenges to his conviction. First, he argues that the
evidence was insufficient to support the mens rea element of the crime. Second,
relying on the Supreme Court’s decision in McFadden v. United States, 135 S. Ct.
2298 (2015), McKenzie contends that the district court improperly instructed the
jury on that element. Finally, McKenzie challenges the special verdict form. We
address each of his arguments in turn.
I. Sufficiency of the Evidence
We review de novo McKenzie’s challenge to the sufficiency of the evidence.
United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014) (per curiam). We are
“required to draw all permissible inferences in favor of the government and resolve
all issues of credibility in favor of the jury verdict.” United States v. Kozeny, 667
F.3d 122, 139 (2d Cir. 2011). We will affirm a jury verdict if “any rational trier of
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fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Cordon, 733 F.3d 366, 375 (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). Upon review of the
record, we conclude that the evidence was sufficient to support McKenzie’s
conviction.
Because McKenzie was charged with and convicted of conspiracy to possess
with intent to distribute controlled substances, the government needed only to
prove “(1) the existence of the conspiracy charged; (2) that the defendant had
knowledge of the conspiracy; and (3) that the defendant intentionally joined the
conspiracy.” United States v. Santos 541 F.3d 63, 70 (2d Cir. 2008) (internal
citations omitted). “[W]here the defendant personally and directly participated in
the drug transaction underlying the conspiracy charge, the government need not
prove that the defendant had knowledge of either drug type or quantity.” United
States v. Andino, 627 F.3d 41, 47 (2d Cir. 2010). McFadden, a case concerning the
Controlled Substances Analogue Enforcement Act (“Analogue Act”), does not disturb
that burden of proof. Indeed, McFadden confirmed that knowledge “can be
established by evidence that a defendant knew that the substance with which he
was dealing is some controlled substance . . . regardless of whether he knew the
particular identity of the substance.” 135 S. Ct. at 2305.1
1McFadden also discussed a second approach to proving knowledge—with evidence that a defendant
knew the actual identity of the controlled substance. That approach, however, is irrelevant to
McKenzie’s case. The district court instructed the jury only under the first approach, that “[w]hat the
Government must prove beyond a reasonable doubt is that Mr. McKenzie knew that some illegal
controlled substance that is illegal in the United States drug laws was part of this conspiracy and
contained in the substances that he and others allegedly conspired to distribute or possess.” Gov’t
App’x 159.
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United States v. McKenzie
There was sufficient evidence at trial, both direct and circumstantial, that
McKenzie knew that he was dealing in a controlled substance. The jury heard
testimony about narcotics and money transactions from coconspirators Rawlins and
Gunter, saw video surveillance evidence, heard wiretapped conversations discussing
the specifics of drug transactions, and saw large quantities of ecstasy pills that were
seized. There was testimony that McKenzie met Gunter in a bar bathroom to
consummate one particular transaction. There were also various intercepted
communications using coded language, arranging for payments, shipping methods,
money transfers, and moving pills between conspirators. McKenzie testified at trial,
and maintains on appeal, that he thought he was selling legal “sex pills,” not
ecstasy. It appears that the jury disbelieved that story.
Thus, viewing the evidence in the light most favorable to the government,
there is sufficient evidence to prove that McKenzie knew he was distributing a
controlled substance.
II. Jury Instructions
Next, McKenzie challenges the jury instructions based on the McFadden
case. Specifically, he argues that the district court erred by repeatedly instructing
the jury that it need not “find that [McKenzie] knew the precise chemical name or
the precise chemical compounds of methamphetamine or methlyenedioxy-
methamphetamine.” Trial Tr. 1016. We review de novo this challenge as well,
viewing the charge as a whole. United States v. Sabhnani, 599 F.3d 215, 237 (2d
Cir. 2010). A defendant must demonstrate error and prejudice from the
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United States v. McKenzie
instructions. Id. Erroneous jury instructions “either fail[] to adequately inform the
jury of the law, or mislead[] the jury as to the correct legal standard.” Id. (quoting
United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)).
McKenzie misunderstands McFadden, “which held that in prosecutions
under the Analogue Act the Government must prove a defendant knew he was
dealing with a substance regulated under the Analogue Act.” United States v.
Tuttle, 646 F. App’x 120, 122 (2d Cir. 2016). The controlled substances involved in
McKenzie’s charge were not analogue drugs. In any event, as discussed above,
McFadden does not disturb long-established law that it is enough for a defendant to
know that he was dealing in a controlled substance even if he did not know the
specific identity of that substance.
“As McFadden is inapposite” here, McKenzie “has failed to demonstrate any
error.” Tuttle, 646 F. App’x at 122. Not every methamphetamine (or MDMA) dealer
will be a high school chemistry teacher, much less possess the knowledge and
sophistication of one. The district court properly instructed the jury that the
government did not need to prove that McKenzie knew the chemical name, makeup,
or structure of the controlled substances.
III. Special Verdict Form
Because McKenzie did not object to the special verdict form, we review his
challenge for plain error. United States v. Scarpa, 913 F.2d 993, 1020–21 (2d Cir.
1990). On appeal, he contends that the special verdict form was error because it did
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United States v. McKenzie
not specifically instruct the jury that the government needed to prove drug quantity
beyond a reasonable doubt.
In its jury instructions, the district court referred to the “beyond a reasonable
doubt” standard no fewer than 18 times. Moreover, specifically with respect to drug
quantity, the district court instructed:
If [the conspiracy] is proven, we need to know how much.
So the next part says if you answered proven that means
the Government has established beyond a reasonable
doubt that the controlled substances involved a detectable
amount of methamphetamine and you can reference the
stipulations that are before you.
Gov’t App’x 189. There is simply no basis to conclude that the jury applied anything
other than the “beyond a reasonable doubt” standard. We therefore discern no plain
error.
We have considered McKenzie’s remaining arguments and determine them to
be without merit.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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