United States v. Corbett

870 F.3d 21, 2017 WL 3864607, 2017 U.S. App. LEXIS 17109
CourtCourt of Appeals for the First Circuit
DecidedSeptember 5, 2017
Docket16-1489P
StatusPublished
Cited by19 cases

This text of 870 F.3d 21 (United States v. Corbett) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Corbett, 870 F.3d 21, 2017 WL 3864607, 2017 U.S. App. LEXIS 17109 (1st Cir. 2017).

Opinion

THOMPSON, Circuit Judge.

The defendant, Damien Corbett, raises three issues in this appeal from his conviction of conspiracy to distribute and possess with intent to distribute oxycodone and oxymorphone. Corbett first argues that the government’s evidence was insufficient. Somewhat relatedly, he contends that the district court committed plain error in its response to a question from the jury. Finally, he asserts that the court erred in imposing a sentencing enhancement for *24 the use or attempted use of a minor in the commission of the offense, see U.S.S.G, § 3B1.4. We affirm.

BACKSTORY 1

Back in 2014, as part of a drug-trafficking investigation in North Berwick, Maine, law-enforcement personnel orchestrated several controlled buys of oxycodone pills 2 from two dealers, Taysha Gillis, who was then eighteen years old, and Kenneth Gerrish. On December 16, 2014, Gillis and Gerrish were arrested soon after the final controlled buy, Police also executed a search warrant for Gillis’s residence that same day and found over 550 oxycodone pills, over 350 oxymorphone pills, 3 and thirty-seven Suboxone pills 4 in two safes in Gillis’s bedroom closet.

Meanwhile, police questioned Gillis and Gerrish separately. Gillis quickly came clean: She removed eighty-seven oxyco-done pills from her shirt and identified Corbett as her source for the pills she was peddling. 5 Armed with this knowledge, law enforcement decided to set up a meeting between Gillis and Corbett.

Now in full-cooperation mode, Gillis— wearing a wire to record the encounter and possessing $3,000 in government-supplied prerecorded buy money—met with Corbett a few days after her arrest;' the ostensible purpose of this meeting was for Gillis to pay Corbett money for pills that he had “fronted” her. 6 The two met inside Corbett’s car. 7 After softie brief chitchat, Gillis and Corbett discussed their mutual mistrust of Javier, the then-boyfriend of Gillis’s mother; Corbett had previously expressed his concern to Gillis that Javier, as a Coast Guard' employee, ‘might impede their pill-distribution scheme in some way. Because of this concern, Gillis proposed that Corbett take back some Opanas,that she had been unable to sell:- “I don’t trust Javier either. That’s why I .think you should get. the Opanas really soon..,. ” Corbett responded: “All right, I will. I will pick them up, uh .,. tomorrow or the day after.” Following this exchange, and because Corbett was concerned that the pair’s cellphones might be tapped, he suggested that Gillis put both phones in her ear so that they could continue their conversation in his car. Gillis complied with this directive and then returned to Cor-bett’s car.

Later in the conversation, Gillis asked Corbett, “What is it I owe you again?” *25 When Corbett responded “Twenty-six fifty,” Gillis pushed back, “I thought it was twenty[-]five sixty for some reason.” Cor-bett replied: “I have to think. It might be.” Gillis then offered to pay Corbett $2,560 and suggested that she had “extra in case you wanted to give me' anything else.” Corbett accepted the $2,560, and responded that he didn’t have any oxycodone pills to sell Gillis at the moment. Corbett then told Gillis, “[Tjomorrow I will come back,” which she understood to mean that he would pick up the Opanas the next day. After the money switched hands, Gillis told Corbett that she still had some Suboxone pills and did not want any more of those pills: “I’m gonna like keep those and continue to try to get rid of the rest of those but I don’t want any more of those.” Cor-bett responded, “Alright.” The conversation eventually ended, and Gillis left Cor-bett’s car.

At this point, multiple officers converged on the scene, ánd Corbett was arrested. In a search of his vehicle, police found the $2,560 in prerecorded buy money in the center console, as well as an additional $3,843 underneath the seat. When questioned by police, Corbett insisted that he and Gillis “were just talking.” Police asked Corbett about the money found in his car, and he answered that it came from “a settlement”; 8 he did not mention that Gillis had just paid him.

A federal grand jury indicted. Corbett on one count of conspiracy to distribute and possess with intent to distribute a mixture or substance containing oxycodone and a mixture or'substance containing oxymor-phone, in violation of 21 U.S.C. §§ 846 and 841(a)(1). The indictment alleged that the charged conspiracy ran from “approximately June 2013 through and until December 16,2014.”

Both Gillis and Gerrish, among others, testified at Corbett’s trial. 9 Gillis told the jury about the evolution of her relationship with Corbett. She first came in contact with Corbett through Facebook when she was thirteen years old. After “[mjaybe a month or a couple of months” of communi-catihg through Facebook, the two met in person at the home of Gillis’s friend. On that occasion, Corbett gave Gillis some money and asked her “to get him weed.” Gillis left and did as Corbett instructed, but when she returned with the goods, Corbett had already left the house; he told Gillis to keep the newly purchased merchandise for herself. Corbett and Gillis continued to occasionally see one another, typically at Gillis’s home. On one of these occasions, Corbett provided the underage Gillis with alcohol.

Eventually, the relationship between Corbett and Gillis entered the realm of oxycodone trafficking. It all started when Corbett and Gillis decided to ask Gerrish if he could obtain oxycodone pills from his father and sell them to Corbett. 10 Gillis asked Gerrish, and Gerrish obliged, obtaining the pills from his dad and selling them to Corbett for a profit. ■

After this first exchange, Corbett told Gillis that he could obtain oxycodone pills (from some unknown source who was not Gerrish’s father) for $22 per pill and that she could sell them for a profit. Gillis agreed to that arrangement, and, about a month later, Corbett fronted her the first *26 delivery of pills. Over the next two years until Gillis was arrested, Corbett continued to deliver oxycodone pills for Gillis to distribute. The frequency of the deliveries varied; sometimes they occurred on a weekly basis, and sometimes monthly drop-offs were made. Corbett continued to front Gillis pills on occasion. Gillis also testified that Corbett set the price that she paid for the pills; she once asked Corbett how many pills she’d have to purchase in order to get a cheaper price, and Corbett responded, “Too many.” And Gillis never obtained a cheaper price from Corbett.

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Cite This Page — Counsel Stack

Bluebook (online)
870 F.3d 21, 2017 WL 3864607, 2017 U.S. App. LEXIS 17109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-corbett-ca1-2017.