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United States v. Harden

United States Court of Appeals, Seventh Circuit

June 20, 2018

United States of America, Plaintiff-Appellee,
v.
Donald S. Harden, Defendant-Appellant.

          Argued May 16, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:16-cr-00035 - William C. Griesbach, Chief Judge.

          Before Flaum, Sykes, and Hamilton, Circuit Judges.

          Flaum, Circuit Judge.

         A jury convicted defendant-appellant Donald S. Harden of conspiring to distribute heroin, the use of which resulted in the death of Fred Schnettler. Harden was sentenced to life in prison under 21 U.S.C. § 841(b)(1)(B). That provision imposes sentencing enhancements if the defendant commits a drug offense and "death or serious bodily injury results from the use of such substance." On appeal, Harden argues that the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that his heroin caused Schnettler's death. Relatedly, Harden contends that the district court failed to adequately instruct the jury on causation. Harden also claims that the district court erred by excluding testimony about an alternative heroin source and denying his motion for a mistrial after inadmissible evidence entered the jury room. Finally, Harden maintains that the prosecution misstated evidence during closing argument. For the reasons below, we affirm.

         I. Background

         At 9:39 AM on September 5, 2014, Fred Schnettler, a twenty-five-year-old male, was found dead in his bedroom at his parents' home in Neenah, Wisconsin. When the sheriff's deputy arrived on the scene, he found Schnettler's father performing CPR and observed a needle and spoon on the floor just below Schnettler's bed. The deputy believed that Schnettler had been dead for quite some time because his body was cold to the touch and rigor mortis had set in.

         Donald Harden was subsequently charged with distributing the heroin that resulted in Schnettler's death. At trial, the prosecution's case focused on Schnettler's purchase of 0.1 grams of heroin from Kyle Peterson the night before Schnettler was found dead. Peterson testified that he purchased the heroin from Brandi Kniebes-Larsen, who in turn testified that she received the heroin from Harden.

         At trial, the government and defense presented competing timelines regarding the heroin delivery. The government tried to establish that Harden's heroin reached Schnettler between 7:30 PM-8:00 PM on September 4, 2014 and that Schnettler overdosed on that heroin shortly after 10:00 PM. By contrast, the defense sought to show that Schnettler received and used Harden's heroin by 5:00 PM, did not get high from it, and ultimately overdosed from heroin or morphine that he obtained from another source later in the evening. The following is a summary of the evidence presented at trial and other relevant events.

         A. Autopsy Report

         Dr. Kristinza Giese, an associate medical examiner with the Fond Du Lac County Medical Examiner's office, performed an autopsy on Schnettler. She determined that his death was caused by acute heroin intoxication. Dr. Giese's opinion was based on the presence of a needle puncture mark on Schnettler's left arm, heavy lungs, cerebral edema (brain swelling), and the presence of a heroin metabolite in his urine called 6-monoacetylmorphine ("6-MAM"). Dr. Giese explained that, when injected into the bloodstream, heroin metabolizes into 6-MAM and morphine. She testified that no drug other than heroin produces 6-MAM. She further explained that 6-MAM remains in the blood for seven to forty minutes, depending on the potency of the drug, but can remain in the urine for several hours. According to the toxicology report, Schnettler's urine contained 1.2 micrograms per milliliter of 6-MAM and more than 4 micrograms of morphine. Schnettler's blood did not contain 6-MAM but did have 0.38 micrograms of morphine.

         On cross-examination, Harden's counsel asked Dr. Giese whether, if someone used heroin at 5:00 and was seen to be alert at 8:00, she would expect them to die from that single dosage at 10:00. Giese responded that she "would be a little surprised" and "wouldn't expect it to be that long." She testified that she would expect someone to die "within minutes" or "within some hours" after injecting heroin, depending on the potency of the drug. Harden's counsel also asked Dr. Giese whether Schnettler's toxicology report was consistent with heroin use at 5:00 and a morphine overdose at 10:00. Dr. Giese responded that Schnettler's blood "would have probably a higher level of morphine, " but she would still expect to see 6-MAM in the urine based on the earlier dosage of heroin.

         B. Kyle Peterson's Testimony

         Peterson testified that he sold heroin to Schnettler on September 3 and 4, 2014. On the afternoon of September 3, 2014, Peterson sold "a pinch, " or approximately 0.1 grams of heroin, to Schnettler. When asked about the source of that heroin, Peterson testified that it was not from Kniebes-Larsen, but rather "came from another friend." Peterson also noted that the heroin "was of a different color and quality … more of a yellowish color" than the heroin he sold to Schnettler on September 4th.

         Peterson further testified that he also sold 0.1 grams of heroin to Schnettler on September 4th "[a]round dusk … between 7:00 and 8:00." He stated that this heroin was "dark gray in color." When asked whether the dark gray color was significant to him, Peterson testified that the heroin "was the same color as" and part of the same batch that Peterson himself overdosed on the following morning-the same morning that Schnettler was found dead. Peterson further testified that this heroin came from Kniebes-Larsen, whom Peterson met through his friend Joe Rooney. Peterson said that the only heroin he had in his possession on September 4th was the heroin he purchased from Kniebes-Larsen, and that he was certain that the heroin he gave to Schnettler that day came from her.

         Peterson also elaborated upon the timeline of events on September 4th. According to Peterson, he purchased 0.5 grams of heroin from Kniebes-Larsen sometime between 2:00 PM and 4:00 PM. After receiving the heroin from KniebesLarsen, he did not immediately deliver it to Schnettler. Instead, he waited a few hours because his "first priority" was to use the heroin himself. Peterson testified that he went to his friend Alex Shottner's ("Shotty's") house in Appleton after he received the heroin, and while there, used the heroin. Peterson stated that he spent thirty or forty minutes at Shotty's house while his friends-including his girlfriend at the time, Alesia Nettekoven-sat outside in a car. He was "pretty sure" he did not deliver the heroin to Schnettler until after he left Shotty's house. Peterson further testified that he delivered drugs to someone else, Dillon, after he left Shotty's house, and before he delivered the heroin to Schnettler. According to Peterson, he only delivered drugs to Schnettler one time on September 4th, and that delivery occurred sometime between 7:00 PM-8:00 PM, but definitely not past 8:00 PM.

         On cross-examination, Peterson admitted he might have purchased the heroin from Kniebes-Larsen as late as 5:00 PM, instead of between 2:00 PM-4:00 PM as he initially testified. Harden's trial counsel questioned Peterson about his inconsistent prior statements to police. Specifically, Harden's counsel pointed out that, on September 5, Peterson told police that he purchased the heroin from Kniebes-Larsen at 5:00 PM and went immediately to Schnettler's house to deliver it before going to Shotty's house. Peterson acknowledged that he "might have told them that." Later, Harden's counsel played an audio recording of Peterson's September 5th interview with police, in which Peterson said that he went immediately to Schnettler's house to deliver the drugs before going to Shotty's house. Harden's counsel asked Peterson whether he might be confusing his later delivery to Dillon with his earlier delivery to Schnettler, especially since he was high, but Peterson testified that he was not confusing the two deliveries.

         C. Text Message and Phone Call Log

         Next, defense counsel introduced a log showing the text messages and phone calls between Peterson and Schnettler on September 4, 2014. The sequence of Schnettler and Peterson's communications were as follows:

5:09 PM Schnettler: "It short for sure cus I thought last nights was small and this is way smaller also last nights was better"
5:14 PM Peterson: "Yeah ik a couple other ones were too, Im grabnimg more of lastnight quality as we speaj"
5:15 PM Schnettler: "Yeh dude I've almost done all of it and I'm not even high"
5:21 PM Peterson: "Oh wow. I'm sorry man. I got some thing for you bud."
5:22 PM Schnettler: "How bout drop me another one off tonight"
5:24 PM Peterson: "That's what I'm saying"
5:26 PM Schnettler: "Ima shower quick then I'll call yah"
5:39 PM Peterson: "Ight just grabbed that grey shit from lastnight so I got you"
5:45 PM Schnettler: "Can u come this way quick"
5:58 PM Peterson: "Yeah I can before I head to appleton"
5:59 PM Schnettler: "Eta"
6:17 PM [Schnettler calls Peterson]
6:18 PM [Schnettler calls Peterson]
6:42 PM [Peterson calls Schnettler]
7:01 PM Schnettler: "Were the fuck are you"
7:04 PM [Schnettler calls Peterson]
7:04 PM Schnettler: "Hello"
7:09 PM [Schnettler calls Peterson]
7:38 PM Schnettler: "U on ur way" ...

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