May 16, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 1:16-cr-00035 - William C.
Griesbach, Chief Judge.
Flaum, Sykes, and Hamilton, Circuit Judges.
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.
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.
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.
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.
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.
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.
Kyle Peterson's Testimony
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
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.
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.
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.
Text Message and Phone Call Log
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
5:24 PM Peterson: "That's what I'm saying"
5:26 PM Schnettler: "Ima shower quick then I'll call
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
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"