United States v. Devin LaShawn Jefferson, II

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 4, 2020
• Docket: 19-10860
• Status: Unpublished

Opinion

Case: 19-10860 Date Filed: 08/04/2020 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10860 Non-Argument Calendar ________________________

D.C. Docket No. 6:18-cr-00059-GAP-GJK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEVIN LASHAWN JEFFERSON, II,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(August 4, 2020)

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

PER CURIAM: Case: 19-10860 Date Filed: 08/04/2020 Page: 2 of 11

Devin Jefferson II appeals his conviction for attempted possession of furanyl

fentanyl with intent to distribute. He contends that the district court should have

granted his motion for a new trial because it allowed a federal agent to offer lay

opinion testimony about drug prices in China.

I.

This case began when Customs and Border Protection (CBP) inspected a

package from Hong Kong as it entered the United States and found that it

contained more than a kilogram of furanyl fentanyl. 1 The package was addressed

to a house in Apopka, Florida. In February 2018 Homeland Security

Investigations Special Agent Robert Palfrey began investigating the package. He

searched for the Florida address in a driver’s license database and found that it was

associated with three people: Jefferson and his two grandparents. The recipient

named on the package was Jefferson’s grandmother.

Agent Palfrey subpoenaed records from Western Union, and they showed

Jefferson had sent 17 payments to China between February and December of 2017.

Most of those payments were sent to the same recipient, a “Songshou Xu.” The

1 There is no evidence in the record about when the package was intercepted. In its opening statement and closing argument at trial, the government said that the package had been seized in April 2017. The record shows that the contents were tested in August 2017. In any event, none of the issues turn on when the package was intercepted. 2 Case: 19-10860 Date Filed: 08/04/2020 Page: 3 of 11

payments varied in amount from $400 to $2,500. There were no payments sent to

China by either of Jefferson’s grandparents.

With the help of other federal agents, Palfrey attempted a controlled delivery

to the Florida address. The agents used a dummy package that contained a

kilogram of baking soda and an electronic alarm that would alert them if the

package was opened. The alarm would be visible to anyone who opened the box.

A postal inspector dressed as a mail carrier brought the package to the house,

where Jefferson’s grandfather accepted delivery of it. After about five minutes, the

agents gave up on waiting for the package to be opened. They searched the house

pursuant to a warrant that they had obtained in advance. Inside the house they

found the unopened package and some mail addressed to Jefferson, but Jefferson

himself was not there. The agents spoke to the grandfather, who agreed to

cooperate. He called Jefferson and told him that a package from China had arrived

for him. Jefferson drove to the house, picked up the package from the front porch,

returned to his car, and drove away. Palfrey and another agent followed him.

While the agents were tailing Jefferson, they received an alert that the

dummy package had been opened. They turned on their emergency lights in an

attempt to stop Jefferson, but he fled at speeds of more than 100 miles per hour.

For safety reasons, the agents did not chase him — there were school buses

unloading and children walking around nearby. About half a mile down the road

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the agents found the box from the dummy package. The baking soda was not

inside of it and was not found anywhere nearby. About 10 to 20 minutes later,

they did find the Nissan that Jefferson had been driving abandoned on the side of

the road. Jefferson was arrested two weeks later.

II.

Jefferson was indicted on two counts but went to trial on only one:

attempting to possess with intent to distribute furanyl fentanyl, in violation of

21 U.S.C. § 846 and § 841(b)(1)(C). 2 The other count was later dismissed.

At trial Agent Palfrey and other witnesses testified about the facts of this

case as we have described them. During his testimony, the government asked

Palfrey about the significance of the Western Union payments, particularly the

amounts of the payments. When Palfrey tried to offer an opinion about what the

amounts indicated, Jefferson objected. He argued that the government had failed

to lay the proper foundation for Palfrey’s opinion testimony under Federal Rule of

Evidence 701. 3 The government agreed that it was offering his testimony under

2 Under § 846, “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense.” The indictment in this case did not cite the underlying substantive offense, but at trial the government clarified that it was 21 U.S.C. § 841(a)(1). 3 Rule 701 governs opinion testimony by lay witnesses. It provides:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; 4 Case: 19-10860 Date Filed: 08/04/2020 Page: 5 of 11

Rule 701 but argued that the foundation it had laid was sufficient. The court

agreed with the government and overruled Jefferson’s objection.

Palfrey then testified that the smaller payments were consistent with

someone ordering small shipments of synthetic drugs to test the quality of the

product. The larger payments, he said, were consistent with purchases of larger

quantities of product or higher-quality product. According to Palfrey, the average

price of a kilogram of synthetic drugs from China at the time was between $2,000

and $3,000. Jefferson’s eight largest payments were within that range. A few of

the payments were somewhere in the middle — more than $1,000 but less than

$2,000. Palfrey explained based on his own experience with making undercover

purchases that drug distributors in China reward their repeat customers by offering

them special discounts. He also explained that it is common for people who buy

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702 governs opinion testimony by expert witnesses. It provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 5 Case: 19-10860 Date Filed: 08/04/2020 Page: 6 of 11

drugs from China to pay for them through Western Union and that it usually takes

six to eight weeks to receive a package of drugs from China after ordering it.

At the end of trial, the jury found Jefferson guilty. He moved for a new trial,

arguing that the district court had erred by allowing Palfrey to testify under Rule

701 instead of Rule 702. The district court granted the motion. It ruled that

Palfrey’s testimony about the price of drugs sold in China violated Rule 701(c)

because it was based on knowledge gained from other investigations instead of

this one. And the court found that because Palfrey’s testimony was a key part of

the government’s case the error in admitting it was prejudicial.

The government filed a motion to reconsider. It argued that Palfrey’s

testimony was admissible under Rule 701, and that even if it was not, any error did

not prejudice Jefferson because the government had met the notice requirements

for a Rule 702 expert. The district court granted the motion to reconsider and

vacated the order granting a new trial. Although the court still thought that it was

error to allow Palfrey to testify under Rule 701, it found that the error did not

prejudice Jefferson.

III.

Jefferson contends that the district court erred by denying his motion for a

new trial. Federal Rule of Criminal Procedure 33(a) provides: “Upon the

defendant’s motion, the court may vacate any judgment and grant a new trial if the

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interest of justice so requires.” We review a denial of a motion for a new trial only

for an abuse of discretion. United States v. Russo, 717 F.2d 545, 550 (11th Cir.

1983). We also review the district court’s evidentiary rulings only for an abuse of

discretion. United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). “A

district court abuses its discretion if it applies an incorrect legal standard, follows

improper procedures in making the determination, or makes findings of fact that

are clearly erroneous.” Id. (quotation marks omitted). Or if it makes a clear error

in judgment. United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).

We need not decide whether the district court erred by admitting Palfrey’s

testimony under Rule 701. Even if the court did err in doing so, the asserted error

is harmless and did not warrant a new trial. “In evaluating whether specific trial

errors warrant a new trial, we apply the harmless-error standard[.]” United States

v. Jeri, 869 F.3d 1247, 1259 (11th Cir. 2017); see Fed. R. Crim. P. 52(a) (“Any

error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”). The asserted error is a non-constitutional one and, like

constitutional errors, it is subject to harmless error review. See Khan, 794 F.3d at

1299; see also Arizona v. Fulminante, 499 U.S. 279, 306–07 (1991) (explaining

that “most constitutional errors can be harmless”).

The government bears the burden of establishing that an error is harmless.

United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009). But it doesn’t have

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to prove harmlessness beyond a reasonable doubt for this type of error. Instead,

“[t]he government meets its burden for a non-constitutional error when we are

convinced that the error did not affect the verdict or had but very slight effect; we

review the trial record in its entirety when making the determination of harmless

error.” Id. (quotation marks omitted).

Jefferson’s main argument on harmfulness is that if Palfrey’s opinion

testimony had been excluded, the Western Union records would have been

irrelevant and therefore inadmissible, and without them there would have been

“little or no evidence that [he] had knowledge that the package he was picking up

was supposed to contain furanyl fentanyl.”

Jefferson is wrong in two ways. First, even without Palfrey’s opinion

testimony, the Western Union records would have been relevant. Evidence is

relevant if it has “any tendency to make a fact [of consequence] more or less

probable than it would be without the evidence.” Fed. R. Evid. 401 (emphasis

added). The fact that Jefferson wired substantial amounts of money to China in

2017 made it more likely that he intended to receive the package of furanyl

fentanyl from China. 4 Excluding Palfrey’s opinion testimony would not have led

to the records being excluded as irrelevant. They still would have been admitted.

4 Jefferson argued at trial that it is possible the money transfers were for counterfeit Chinese goods and not drugs. But that possibility does not make evidence regarding the transfers irrelevant. It goes to the weight to be given the evidence, not to its admissibility. 8 Case: 19-10860 Date Filed: 08/04/2020 Page: 9 of 11

And second, there was plenty of other evidence at trial showing that

Jefferson believed he was taking possession of furanyl fentanyl when he picked up

the dummy package. The package that CBP intercepted was addressed to

Jefferson’s grandparents’ house and contained more than a kilogram of furanyl

fentanyl. Jefferson’s grandmother was named as the recipient on the package,

which means that the Chinese drug supplier did not send the package to the wrong

house by mistake. If there had been a typo or other error on the address label, the

name on the label would not have matched one of the address’s actual residents,

but it did. And there was other mail addressed to Jefferson inside his grandparents’

house, showing that he received some of his mail there.

Jefferson’s actions shed additional light on his state of mind and knowledge.

He readily picked up the dummy package after his grandfather called to tell him

about it. Alerted that Jefferson had opened the package in his car, federal agents

tried to pull him over. Instead of stopping, Jefferson sped away at over 100 miles

per hour as school buses unloaded children nearby. Cf. United States v. Blakey,

960 F.2d 996, 1000 (11th Cir. 1992) (“Evidence of flight is admissible to

demonstrate consciousness of guilt and thereby guilt.”). He threw away the box

and the electronic alarm but not the substance inside, and he abandoned his car on

the side of the road as he fled. All of those facts, when combined with the Western

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Union records, provided overwhelmingly proof that Jefferson intended to possess

furanyl fentanyl.

Of course, in the prosecution of an attempt crime the government must prove

not only intent but also a “substantial step” strongly corroborating the defendant’s

intent. See United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).

That element was satisfied when Jefferson took possession of the dummy package

and then fled after the agents tried to pull him over. Those actions — particularly

Jefferson’s flight — were “strongly corroborative of [his] criminal intent.” Id.; cf.

United States v. Williams, 603 F.2d 1168, 1174 (5th Cir. 1979) (finding that the

defendants’ acts, including their “evasive driving” after receiving a controlled

delivery of PCP precursor chemicals, were substantial steps that supported their

attempt convictions).5

The only testimony offered by the defense was from a seventeen-year-old

eyewitness who saw Jefferson’s car as it was being abandoned on the side of the

road. He testified that the person who got out of the car was wearing light-colored

clothes, although he admitted that he could not see the person clearly. That

testimony is at odds with Agent Palfrey’s testimony that Jefferson’s clothing was

dark-colored. But that difference does not undermine the strong proof that

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.

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Jefferson was in fact the person who picked up the package and fled from the

police. Jefferson showed up to get the package after his grandfather called to tell

him about it; both Palfrey and another agent positively identified the man who

arrived and got the package as Jefferson based on his driver’s license photo; and at

one point while they were following the car, the agents pulled up next to it and

were able to see that Jefferson was the driver and no one else was in it.

Because there was overwhelming evidence at trial proving Jefferson’s guilt,

we are convinced that Palfrey’s opinion testimony did not affect the verdict. Any

error the district court might have made by admitting the testimony was harmless.

See United States v. Willner, 795 F.3d 1297, 1322 (11th Cir. 2015) (holding that

the district court’s error in allowing a witness to give expert testimony was

harmless because of “the overwhelming evidence of the [defendants’] guilt as

charged in the indictment”). As a result, the district court did not abuse its

discretion by denying Jefferson’s motion for a new trial.6

AFFIRMED.

6 Jefferson also asserts that if Palfrey had been designated as an expert under Rule 702, the government would have been required to disclose a written summary of Palfrey’s testimony under Federal Rule of Criminal Procedure 16(a)(1)(G). He argues that the lack of a written summary hindered his defense because he was unable to move before trial to exclude Palfrey’s opinion testimony under Rule 702 and was unable to hire his own expert to rebut Palfrey’s opinions. Because we are convinced that Palfrey’s opinion testimony did not affect the verdict, we need not address those arguments. See United States v. Barragan, 793 F.2d 1255, 1259 (11th Cir. 1986) (holding that the government’s Rule 16(a) violation was harmless because the defendant’s “participation and role in the crime were clearly established” by other evidence at trial) 11