United States v. Sledge

108 F.4th 659

UNITED STATES of America, Petitioner - Appellee v. Darius SLEDGE, also known as Ace, also known as Man Man,also known as Frank, also known as Frank Love, also known as Gary,also known as Bill, Defendant - AppellantUnited States of America, Plaintiff - Appellee v. Baquan Sledge, also known as Sledge, also known as Rell,also known as TJ, also known as Matthew Pierce, Defendant - Appellant

No. 23-1096

No. 23-1099

United States Court of Appeals, Eighth Circuit

Submitted: March 12, 2024

Filed: July 16, 2024

Appeal from United States District Court for the District of North Dakota - Eastern Counsel who presented argument on behalf of the appellant in 23-1096 and appeared on the brief was Thomas M. Jackson, of Bismarck, ND. Counsel who presented argument on behalf of the appellant in 23-1099 was Meghann Joyce, of Sioux Falls, SD. The following attorney(s) appeared on the appellant brief in 23-1099; Theodore T. Sandberg, of Grand Forks, ND.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Lori Helen Conroy, AUSA, of Fargo, ND. The following attorney(s) appeared on the appellee brief; Dawn M Deitz, AUSA, of Fargo, ND.

Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.

SHEPHERD, Circuit Judge.

Darius Sledge and Baquan Sledge were indicted on five counts stemming from their participation in, and leadership of, a drug distribution conspiracy in North Dakota. Following a jury trial, Baquan was found guilty on all counts, and Darius on all but one. Both now appeal, asserting various points of error. Having jurisdiction under 28 U.S.C. § 1291, we reverse Darius's continuing criminal enterprise conviction and remand for a new trial, remand to the district court on Baquan's drug conspiracy conviction, but affirm the judgments in all other respects.

I.

This case arises out of a wide-ranging conspiracy to distribute oxycodone pills in North Dakota. Beginning in 2015, Baquan led Darius and others in establishing a pill distribution network targeting the Turtle Mountain, Fort Berthold, and Spirit Lake Indian Reservations. Transporting thousands of pills at a time from Michigan, the group recruited local residents in North Dakota as sub-distributors, stayed at their homes, and compensated them by paying rent or phone bills. The scale of the operation was substantial. Baquan and Darius would make between 15 and 20 trips each year. Baquan was known to carry a gallon-sized plastic bag containing up to 10,000 pills at a time, with each pill selling for between $40 and $80. Proceeds were physically transported back to Michigan or sent to family members via electronic money transfers. Despite being arrested in October 2019, Baquan continued his involvement in the operation by calling Darius from jail. Darius was arrested the next year.

A grand jury charged Darius and Baquan with five counts: (1) conspiracy to distribute and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; (2) money laundering conspiracy, in violation of 18 U.S.C. § 1956(h) and (a)(1); (3) possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; (4) maintaining a drug-involved premises, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2; and (5) continuing criminal enterprise (CCE), in violation of 21 U.S.C. § 848(a) and (c).

In the year preceding Darius and Baquan's joint trial, the United States Marshals Service relocated Baquan from a North Dakota correctional facility to a facility in Colorado. Alleging that the new thousand-mile distance from his attorney prejudiced his defense, in violation of his Sixth Amendment right to counsel, Baquan moved the district court to order his return to North Dakota. Two months later, the district court held a hearing on the motion. Baquan acknowledged that, since filing his motion, he had been returned to a facility within North Dakota. Because the Marshals Service communicated to the district court its intent to keep Baquan in North Dakota until his case was resolved, the district court denied the motion as moot.

The joint trial began six months later. Dozens of witnesses testified, and hundreds of exhibits were entered into evidence. We therefore recount the facts of the trial only to the extent necessary to dispose of the issues raised on appeal. During trial, the district court admitted into evidence text messages, photographs, and videos from the phone of unindicted coconspirator Kevon Savage. The photographs and videos showed, among other things, Savage and Darius with large amounts of money and pills. During trial, counsel for Baquan complained that the Government was listening to his client's jail phone calls. He conceded, "Certainly the government has a right to do that," but protested that it was "dirty." The jury ultimately returned a guilty verdict on all counts, except for the distribution of oxycodone count as to Darius.

Three months after the verdict, an alternate juror contacted Baquan's counsel to provide text messages between herself and a second juror, wherein they discussed that a third juror, L.O., had once mentioned that his daughter had "ODed" on "pills." Darius and Baquan jointly moved for a new trial and evidentiary hearing based on claims of juror bias or misconduct, asserting that L.O. "purposefully refused to volunteer critical . . . information" during voir dire and "ke[pt] . . . secret" his daughter's alleged overdose. The district court denied the motions.

The district court ultimately sentenced Darius to 360 months' imprisonment on the CCE count and 240 months' on his remaining three, all running concurrently. The district court also sentenced Baquan to 360 months' imprisonment on the CCE count and 240 months on his remaining four, all running concurrently.

II.

We begin with Darius's challenge to his CCE conviction based on an alleged error in the jury instructions. To establish a CCE violation, the Government must prove that the defendant committed:

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of three or more related felony violations of federal narcotics laws;

3) in concert with five or more other persons;

4) for whom [the defendant] is an organizer, manager or supervisor; [and]

5) from which [the defendant] derives substantial income or resources.

United States v. Lee, 687 F.3d 935, 940 (8th Cir. 2012) (second alteration in original) (citation omitted). Relying on the Supreme Court's decision in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), Darius asserts that the district court was required to instruct the jury that it must unanimously agree as to which three predicate felonies constituted the "continuing series." Because the jury did not receive this specific unanimity instruction, and because the jury found him guilty of only two predicate felonies, Darius asserts that we cannot know if the jury unanimously agreed which three he committed, as Richardson requires.¹

A.

As a threshold matter, we must first address the appropriate standard of review. "We typically review a challenge to jury instructions for an abuse of discretion. Where a party fails to timely object to an instruction at trial, however, we review only for plain error." United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (citation omitted).

Darius asserts that he "properly objected" to the jury instructions on this issue at trial. We disagree. "An objection must be timely and clearly state the grounds." United States v. Burrage, 951 F.3d 913, 916 (8th Cir. 2020). Here, when discussing the proposed final instructions with the district court and the Government, counsel for Darius did not object to the lack of a specific unanimity instruction. Rather, counsel stated that "the felony violations of federal controlled substance laws should be explained to the jury and set forth; in other words, that . . . these two felony violations have occurred beyond a reasonable doubt within that continuing criminal enterprise." Counsel later clarified, "for purposes of the record," that the CCE "instruction[s] should make it clear . . . what . . . federal controlled substance law[s] were violated." Thus, even after clarifying his point, counsel failed to clearly state that a unanimity instruction was required.

While it is true that Darius filed "Proposed Jury Instructions and/or Objections to the Court's Preliminary Proposed Jury Instructions" one month before these final jury instruction discussions, Darius therein stated that he had no objections to the proposed instructions "except those which conflict with other instructions set forth below." The "instructions set forth below" appear to be a near verbatim recitation of Eighth Circuit model CCE jury instructions, which contain a specific unanimity instruction. But even if we charitably assume that this constituted the tender of a specific unanimity instruction, "[t]he mere tender of an alternative instruction without objecting to some specific error . . . or explaining why the proffered instruction better states the law does not preserve the error for appeal." United States v. Weckman, 982 F.3d 1167, 1175 (8th Cir. 2020) (citation omitted). Here, Darius did neither. Therefore, because Darius did not clearly state that a specific unanimity instruction was required when discussing the final proposed instructions, we review for plain error. See Burrage, 951 F.3d at 916.

In so holding, we reject the Government's alternative argument that Darius waived his objection by inviting the alleged error. "When a party expressly agrees to an instruction, the doctrine of invited error applies, and any objection to the instruction is waived." United States v. Davis, 826 F.3d 1078, 1082 (8th Cir. 2016). But the Government points us to no portion of the record in which Darius expressly agreed to the lack of a specific unanimity instruction. Nor...