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United States v. Klemis

United States Court of Appeals, Seventh Circuit

June 12, 2017

United States of America, Plaintiff-Appellee,
Richard J. Klemis, Defendant-Appellant.

          Argued April 7, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 11-CR-30108 - David R. Herndon, Judge.

          Before Easterbrook, Kanne, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Richard 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.

         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.

         Klemis's 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.

         I. Background

         Klemis 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.

         Klemis 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.

         The 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.

         The 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.

         The 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.

         Six 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 ...

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