United States v. Pagan

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LESLIE PAGAN, Defendant-Appellant.

No. 21-12328

United States Court of Appeals, Eleventh Circuit

October 14, 2022

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20-cr-00253-TPB-SPF-1 Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.

PER CURIAM

Leslie Pagan appeals her convictions for various drug charges including one count of conspiracy to possess with intent to distribute one kilogram or more of a substance containing heroin and fentanyl, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and one count of distribution of a substance containing heroin and fentanyl resulting in death in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. She argues that the district court (1) erred by instructing the jury on coconspirator vicarious liability under Pinkerton,^[1] and (2) abused its discretion in admitting text messages between the victim and her heroin dealer Pagan's coconspirator. After careful review, we affirm.

I. BACKGROUND

Jackylin Bonifacio sold heroin. For several years, Pagan was Bonifacio's supplier. Kaylei Jones was a friend and regular customer of Bonifacio's, purchasing heroin from her every day or two. Pagan's convictions stem in part from her involvement in the distribution of a controlled substance resulting in Jones's death.

The night before Jones died, Bonifacio purchased from Pagan 10 grams of a substance she believed to be heroin. At the time, this 10-gram supply from Pagan was Bonifacio's only on-hand source of product to sell because Bonifacio had sold her last few bags to Jones earlier that day.

The next day, Bonifacio sold Jones three bags of the product she had obtained from Pagan. Jones returned home, used some of the drugs, and died. Investigators determined the primary cause of death was fentanyl overdose.

At the scene, police found a used syringe. Testing revealed that the substance inside the syringe contained fentanyl and a small amount of xylazine. Analysis revealed that Jones also had trace amounts of xylazine in her system. Xylazine, a veterinary tranquilizer, is an unusual cutting agent that, according to the government, helped to identify the source of the drugs.

Police recovered from the scene Jones's iPhone containing text-message exchanges with two telephone numbers. One of the numbers was saved in the phone as a contact under the name "J." The other was unsaved. Jones had sent multiple messages to the unsaved number requesting drugs and syringes and arranging payment.

Using law enforcement databases, police identified the saved "J" number as belonging to Bonifacio. Based on the content of the messages, investigators determined that the two numbers likely belonged to the same person. In one message with the unsaved number, Jones was asked to pick up a prescription. Jones asked for the person's full name, and the response from the unsaved number was "Jackylin Bonifacio." Doc. 207 at 127.^[2]

To confirm that Bonifacio was the drug supplier behind the unsaved number, law enforcement used Jones's phone to set up another exchange the next day. Investigators texted the unsaved number requesting more drugs, and the responder agreed. Impersonating Jones, investigators represented that Jones's car was not working and requested that Bonifacio deliver the drugs. In response, Bonifacio arrived at Jones's house with the requested quantity of drugs.

Officers arrested Bonifacio. When they searched her and her car, they found the baggies of drugs that she had arranged to deliver to Jones, as well as additional drugs. They discovered that Bonifacio was carrying the phone belonging to the unsaved number on her person and found her personal phone-the saved number-in her car. Later testing showed that the drugs Bonifacio was carrying contained a mixture of fentanyl and xylazine.

When officers interviewed Bonifacio, she was reluctant to identify Pagan as her supplier. She initially identified another acquaintance who would occasionally provide her with small amounts of heroin when Pagan was unavailable. A few weeks later, she began cooperating with investigators and identified Pagan as her supplier. She confirmed that the drugs she was carrying when she was arrested were from the same batch as the drugs she had sold to Jones the day Jones died. Bonifacio then executed multiple controlled purchases of drugs from Pagan. Testing revealed that the substances Bonifacio purchased from Pagan contained fentanyl and xylazine.

A federal grand jury charged Pagan and Bonifacio with conspiracy to distribute and possess with intent to distribute a controlled substance (Count One), and with distribution of a controlled substance resulting in death (Count Two).^[3] For Count One, the indictment alleged that the conspiracy involved "one kilogram or more of a mixture . . . containing a detectable amount of heroin and . . . fentanyl." Doc. 67 at 1-2. For Count Two, the indictment alleged that the violation involved a mixture or substance containing "heroin . . . and . . . fentanyl." Id. at 2. Bonifacio pled guilty and testified for the government at Pagan's trial.

At trial, the government introduced evidence tying the drugs that caused Jones's death to Pagan through Bonifacio. The government sought to introduce testimony from a law enforcement officer about the content of text messages that Jones and Bonifacio had exchanged. Pagan objected that the testimony about the text messages was inadmissible hearsay. The government argued that the messages were not being offered for the truth of the matter asserted and that the text messages themselves would be entered into evidence. The district court overruled Pagan's objection, noting that Bonifacio was scheduled to testify and could be questioned about the messages. The government then introduced into evidence, without further objection from Pagan, a summary of the text messages sent between Jones and Bonifacio in the days immediately preceding Jones's death. Later, Bonifacio testified, again without objection from Pagan, about the same information contained in the text messages.

At the close of trial, Pagan conceded guilt as to the existence of a conspiracy in Count One but disputed the amount of heroin involved and denied supplying the substance that killed Jones. The district court instructed the jury that it could find Pagan guilty on Count Two-distribution resulting in death-if she had "'knowingly' distributed a controlled substance," regardless of whether she knew the substance was heroin or fentanyl. Doc. 143 at 8.

The district court also gave instructions regarding coconspirator liability consistent with Pinkerton v. United States, 328 U.S. 640 (1946). The court instructed the jury that if it found Pagan guilty of conspiracy in Count One, it could find her guilty of Count Two even if she did not directly participate in the crime:

During a conspiracy, if a conspirator commits a crime to advance the conspiracy towards its goals, then in some cases, a coconspirator may be guilty of the crime, even though the coconspirator did not participate directly in the crime.

So regarding Count 2 and Defendant Leslie Pagan, if you have first found the defendant guilty of the crime of conspiracy, as charged in Count 1, you may also find the defendant guilty of the crime charged in Count 2, even though the defendant did not personally participate in the crime.

To do so, you must find beyond a reasonable doubt:

(1) during the conspiracy, a conspirator committed the additional crime charged to further the conspiracy's purpose; (2) the defendant was a knowing and willful member of the conspiracy when the crime was committed; and (3) it was reasonably foreseeable that a coconspirator would commit the crime as a consequence of the conspiracy.

Doc. 143 at 7. Pagan objected to the Pinkerton instruction, arguing that "I know that the case law is against us at this point in time, but we would state that objection." Doc. 209 at 3. The district court overruled Pagan's objection, and the jury found Pagan guilty. This appeal followed.

II. STANDARD OF REVIEW

We review a district court's evidentiary rulings for abuse of discretion. United States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009). "An abuse of discretion occurs if the district court applies an incorrect legal standard or makes findings of fact that are clearly erroneous." Id. We will reverse a district court's evidentiary rulings "only if the resulting error affected the defendant's substantial rights." United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).

We review preserved challenges to jury instructions de novo to determine whether they "misstated the law or misled the jury to the prejudice of the objecting party." United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009). We review the phrasing of an instruction for abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). "[D]istrict courts have broad discretion in formulating jury instructions provided that the charge as a whole accurately reflects the law and the facts." Id. (internal quotation marks omitted). We will not reverse due to an erroneous instruction unless "the issues of law were presented inaccurately, or the charge improperly guided the jury in such a substantial way as to violate due process." Id.

When a defendant does not object to a jury instruction below, we review for plain error. United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir. 2001). "To prevail under plain error review, [the defendant] must show that the district court made an error, that the error was plain, and that it affected his substantial rights." United States v. Iriele, 977...