April 7, 2016
from the United States District Court for the Southern
District of Illinois. No. 11-CR-30108 - David R. Herndon,
Easterbrook, Kanne, and Sykes, Circuit Judges.
Klemis was in the business of selling heroin in O'Fallon
and Belleville, Illinois, two suburban communities in the
Metro East area of greater St. Louis. His customer base
included teenagers and 18- to 21-year-olds. One of his young
customers overdosed on heroin in Klemis's driveway and
nearly died; timely medical intervention saved his life.
Nineteen-year-old Tyler McKinney was not so lucky. A regular
customer and occasional driver for Klemis, McKinney fatally
overdosed on heroin supplied by Klemis.
was indicted on multiple drug charges, including conspiracy
to distribute heroin, distribution of heroin to persons under
21, using a minor in a drug operation, and heroin
distribution resulting in serious physical injury or death. A
jury convicted him on all counts, and the judge imposed a
lengthy prison term.
main claim on appeal is that the prosecutor made a number of
improper and inflammatory statements during closing argument,
including a vivid rhetorical flourish assigning Klemis to the
innermost circle of hell depicted in Dante's
Inferno. This form of argumentation indeed crossed
the line, but it was not prejudicial given the quantity and
quality of the evidence against Klemis; the rest of the
prosecutor's closing argument was well within bounds.
Klemis's remaining claims include a challenge to the
sufficiency of the evidence on the count relating to
McKinney's death, an argument about hearsay evidence, and
a complaint about juror bias. We find no error and affirm.
ran his drug business out of his home in O'Fallon where
he lived with his mother and teenage half-brother Justin
Lewis. Justin introduced Klemis to his high-school friends,
and Klemis began supplying them with marijuana and eventually
heroin. It was only a matter of time before things turned
tragic. In 2010 Eric Schulze went to Klemis's house to
buy heroin and then overdosed in the driveway; quick medical
intervention saved his life. In 2011 Tyler McKinney, age 19,
fatally overdosed on heroin supplied by Klemis. McKinney had
been one of Klemis's most frequent heroin customers and
sometimes earned his drugs by driving Klemis from
O'Fallon to St. Louis to purchase heroin for resale.
was charged with nine federal crimes related to heroin
trafficking and his role in Schulze's overdose and
McKinney's death: conspiracy to distribute heroin, 21
U.S.C. §§ 841(a)(1), 846; four counts of
distribution of heroin to a person under 21, id.
§ 859; use of a person under 18 years of age in a drug
operation, id. §§ 841(a)(1), 861(a)(1) and
(b); distribution of heroin resulting in death, id.
§ 841(a)(1), (b)(1)(C); distribution of heroin resulting
in serious physical injury, id. § 841(a)(1),
(b)(1)(C); and possession of heroin, id. §
844(a). The charges were tried to a jury over seven days.
government's evidence was abundant and powerful.
Prosecutors presented testimony and documentary evidence from
several law-enforcement officers and paramedics, as well as
medical witnesses, who testified about the facts of
Schulze's overdose and McKinney's death. Christopher
Gonzales, Klemis's coconspirator, was a witness for the
prosecution and provided details about their
heroin-trafficking activities. Among other things, Gonzales
told the jury that Klemis sometimes stayed with him at his
home in Belleville and together they sold heroin from that
house. The two often pooled their money to buy heroin, and
Gonzales also drove Klemis to St. Louis to purchase heroin
from Klemis's supplier. Gonzales testified that he did
not himself sell heroin to teenagers. But he was aware that
Klemis was doing so and testified that he told him not to.
government also presented testimony from many of Klemis's
young heroin customers and their friends. These witnesses
included Alexis J. Carmack, who was 19 years old when Klemis
sold her heroin; Corey Keys, who was 20 when Klemis sold him
heroin; and Nicholas Ramage, who was 16 when he bought heroin
from Klemis. Ramage also testified that he helped Klemis
purchase heroin and watched him prepare it for resale.
evidence connecting Klemis to McKinney's death was
especially strong. Seven witnesses testified that McKinney
earned his heroin by driving Klemis to St. Louis to meet with
his supplier. Eight witnesses testified that they had seen
Klemis sell heroin to McKinney or inject McKinney with heroin
or both. One of these witnesses, Alexis Carmack, dated
McKinney for a time in 2010; she testified that Klemis
injected McKinney with heroin "every time we were with
each other, so quite a few, nine or ten or more." Nicole
Feyearbend also dated McKinney on and off during this period.
She testified that she saw Klemis inject McKinney with heroin
"four or five times" and that the last time she saw
this was the week before McKinney died. Nancy Singleton and
Garrett Libbra both testified that McKinney told them that he
needed money to pay his drug debt to Klemis. Singleton
testified that McKinney stole some jewelry from her and told
her he did it because he was "afraid something would
happen to him if he couldn't pay [Klemis] back."
Libbra testified that McKinney had asked him for $400 to $500
to pay off his drug debt to Klemis.
witnesses testified that Klemis admitted to them that he had
supplied the heroin that killed McKinney. A text-message
conversation between McKinney and Klemis on the day McKinney
died showed that McKinney received a package of heroin from
Klemis about an hour before his death. The government's
case also included phone and text logs tracing the phone
calls and text messages Klemis and McKinney exchanged to
arrange the heroin transaction that ...