USA v. Leslie Pagan

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12328
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESLIE PAGAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00253-TPB-SPF-1
____________________
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2 Opinion of the Court 21-12328
Before R OSENBAUM , JILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
Leslie Pagan appeals her convictions for various drug
charges, including one count of conspiracy to possess with intent
to distribute one kilogram or more of a substance containing her-
oin and fentanyl, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846,
and one count of distribution of a substance containing heroin and
fentanyl resulting in death, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) and 18 U.S.C. § 2. She argues that the district court
(1) erred by instructing the jury on coconspirator vicarious liability
under
Pinkerton,1 and (2) abused its discretion in admitting text
messages between the victim and her heroin dealer, Pagan’s cocon-
spirator. After careful review, we affirm.
I. BACKGROUND
Jackylin Bonifacio sold heroin. For several years, Pagan was
Bonifacio’s supplier. Kaylei Jones was a friend and regular cus-
tomer of Bonifacio’s, purchasing heroin from her every day or two.
Pagan’s convictions stem in part from her involvement in the dis-
tribution of a controlled substance resulting in Jones’s death.
The night before Jones died, Bonifacio purchased from Pa-
gan 10 grams of a substance she believed to be heroin. At the time,
this 10-gram supply from Pagan was Bonifacio’s only on-hand
1
Pinkerton v. United States, 328 U.S. 640 (1946).
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21-12328 Opinion of the Court 3
source of product to sell because Bonifacio had sold her last few
bags to Jones earlier that day.
The next day, Bonifacio sold Jones three bags of the product
she had obtained from Pagan. Jones returned home, used some of
the drugs, and died. Investigators determined the primary cause of
death was fentanyl overdose.
At the scene, police found a used syringe. Testing revealed
that the substance inside the syringe contained fentanyl and a small
amount of xylazine. Analysis revealed that Jones also had trace
amounts of xylazine in her system. Xylazine, a veterinary tranquil-
izer, is an unusual cutting agent that, according to the government,
helped to identify the source of the drugs.
Police recovered from the scene Jones’s iPhone containing
text-message exchanges with two telephone numbers. One of the
numbers was saved in the phone as a contact under the name “J.”
The other was unsaved. Jones had sent multiple messages to the
unsaved number requesting drugs and syringes and arranging pay-
ment.
Using law enforcement databases, police identified the saved
“J” number as belonging to Bonifacio. Based on the content of the
messages, investigators determined that the two numbers likely be-
longed to the same person. In one message with the unsaved num-
ber, Jones was asked to pick up a prescription. Jones asked for the
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4 Opinion of the Court 21-12328
person’s full name, and the response from the unsaved number was
“Jackylin Bonifacio.” Doc. 207 at 127.2
To confirm that Bonifacio was the drug supplier behind the
unsaved number, law enforcement used Jones’s phone to set up
another exchange the next day. Investigators texted the unsaved
number requesting more drugs, and the responder agreed. Imper-
sonating Jones, investigators represented that Jones’s car was not
working and requested that Bonifacio deliver the drugs. In re-
sponse, Bonifacio arrived at Jones’s house with the requested quan-
tity of drugs.
Officers arrested Bonifacio. When they searched her and her
car, they found the baggies of drugs that she had arranged to de-
liver to Jones, as well as additional drugs. They discovered that
Bonifacio was carrying the phone belonging to the unsaved num-
ber on her person and found her personal phone—the saved num-
ber—in her car. Later testing showed that the drugs Bonifacio was
carrying contained a mixture of fentanyl and xylazine.
When officers interviewed Bonifacio, she was reluctant to
identify Pagan as her supplier. She initially identified another ac-
quaintance who would occasionally provide her with small
amounts of heroin when Pagan was unavailable. A few weeks later,
she began cooperating with investigators and identified Pagan as
her supplier. She confirmed that the drugs she was carrying when
2 “Doc.” numbers refer to the district court’s docket entries.
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21-12328 Opinion of the Court 5
she was arrested were from the same batch as the drugs she had
sold to Jones the day Jones died. Bonifacio then executed multiple
controlled purchases of drugs from Pagan. Testing revealed that
the substances Bonifacio purchased from Pagan contained fentanyl
and xylazine.
A federal grand jury charged Pagan and Bonifacio with con-
spiracy to distribute and possess with intent to distribute a con-
trolled substance (Count One), and with distribution of a con-
trolled substance resulting in death (Count Two).3 For Count One,
the indictment alleged that the conspiracy involved “one kilogram
or more of a mixture . . . containing a detectable amount of heroin
and . . . fentanyl.” Doc. 67 at 1–2. For Count Two, the indictment
alleged that the violation involved a mixture or substance contain-
ing “heroin . . . and . . . fentanyl.”
Id. at 2. Bonifacio pled guilty and
testified for the government at Pagan’s trial.
At trial, the government introduced evidence tying the
drugs that caused Jones’s death to Pagan through Bonifacio. The
government sought to introduce testimony from a law enforce-
ment officer about the content of text messages that Jones and Bon-
ifacio had exchanged. Pagan objected that the testimony about the
text messages was inadmissible hearsay. The government argued
that the messages were not being offered for the truth of the matter
asserted and that the text messages themselves would be entered
3 Pagan was also charged with eight additional counts of distribution of heroin
and fentanyl, to which she admitted guilt.
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6 Opinion of the Court 21-12328
into evidence. The district court overruled Pagan’s objection, not-
ing that Bonifacio was scheduled to testify and could be questioned
about the messages. The government then introduced into evi-
dence, without further objection from Pagan, a summary of the
text messages sent between Jones and Bonifacio in the days imme-
diately preceding Jones’s death. Later, Bonifacio testified, again
without objection from Pagan, about the same information con-
tained in the text messages.
At the close of trial, Pagan conceded guilt as to the existence
of a conspiracy in Count One but disputed the amount of heroin
involved and denied supplying the substance that killed Jones. The
district court instructed the jury that it could find Pagan guilty on
Count Two—distribution resulting in death—if she had “‘know-
ingly’ distributed a controlled substance,” regardless of whether
she knew the substance was heroin or fentanyl. Doc. 143 at 8.
The district court also gave instructions regarding cocon-
spirator liability consistent with
Pinkerton v. United States, 328
U.S. 640 (1946). The court instructed the jury that if it found Pagan
guilty of conspiracy in Count One, it could find her guilty of Count
Two even if she did not directly participate in the crime:
During a conspiracy, if a conspirator commits a crime
to advance the conspiracy towards its goals, then in
some cases, a coconspirator may be guilty of the
crime, even though the coconspirator did not partici-
pate directly in the crime.
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21-12328 Opinion of the Court 7
So regarding Count 2 and Defendant Leslie Pagan, if
you have first found the defendant guilty of the crime
of conspiracy, as charged in Count 1, you may also
find the defendant guilty of the crime charged in
Count 2, even though the defendant did not person-
ally participate in the crime.
To do so, you must find beyond a reasonable doubt:
(1) during the conspiracy, a conspirator committed
the additional crime charged to further the conspir-
acy’s purpose; (2) the defendant was a knowing and
willful member of the conspiracy when the crime was
committed; and (3) it was reasonably foreseeable that
a coconspirator would commit the crime as a conse-
quence of the conspiracy.
Doc. 143 at 7. Pagan objected to the
Pinkerton instruction, arguing
that “I know that the case law is against us at this point in time, but
we would state that objection.” Doc. 209 at 3. The district court
overruled Pagan’s objection, and the jury found Pagan guilty. This
appeal followed.
II. STANDARD OF REVIEW
We review a district court’s evidentiary rulings for abuse of
discretion.
United States v. Wilk, 572 F.3d 1229, 1234 (11th Cir.
2009). “An abuse of discretion occurs if the district court applies an
incorrect legal standard or makes findings of fact that are clearly
erroneous.”
Id. We will reverse a district court’s evidentiary rulings
“only if the resulting error affected the defendant’s substantial
rights.”
United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
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8 Opinion of the Court 21-12328
We review preserved challenges to jury instructions
de
novo to determine whether they “misstated the law or misled the
jury to the prejudice of the objecting party.”
United States v. Felts,
579 F.3d 1341, 1342 (11th Cir. 2009). We review the phrasing of an
instruction for abuse of discretion.
United States v. Prather, 205
F.3d 1265, 1270 (11th Cir. 2000). “[D]istrict courts have broad dis-
cretion in formulating jury instructions provided that the charge as
a whole accurately reflects the law and the facts.”
Id. (internal quo-
tation marks omitted). We will not reverse due to an erroneous
instruction unless “the issues of law were presented inaccurately,
or the charge improperly guided the jury in such a substantial way
as to violate due process.”
Id.
When a defendant does not object to a jury instruction be-
low, we review for plain error.
United States v. Hansen, 262 F.3d
1217, 1248 (11th Cir. 2001). “To prevail under plain error review,
[the defendant] must show that the district court made an error,
that the error was plain, and that it affected his substantial rights.”
United States v. Iriele, 977 F.3d 1155, 1177 (11th Cir. 2020). We will
not reverse based on plain error unless the error “seriously af-
fect[ed] the fairness, integrity, or public reputation of judicial pro-
ceedings.”
Id.
III. DISCUSSION
We first address whether the district court erred in instruct-
ing the jury on the
Pinkerton theory of vicarious liability. Next, we
address whether the district court abused its discretion in admitting
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21-12328 Opinion of the Court 9
text messages between Jones and Bonifacio. Because we find no re-
versible error, we affirm.
A. The district court did not err by giving a
Pinkerton jury
instruction.
Pagan argues that the district court’s
Pinkerton instruction
was improper because it allowed the jury to find her guilty of the
substantive offense involving fentanyl in Count Two even if it
found her guilty of a conspiracy to distribute only heroin in Count
One. She contends, for the first time on appeal, that the court’s in-
struction violated her rights to due process and a fair trial. We need
not determine whether the objection was preserved because we
conclude that the district court did not err, plainly or otherwise.
Taken as a whole, the court’s jury instructions did not allow the
jury to use the
Pinkerton charge to convict Pagan of the substan-
tive offense in Count Two based on a different conspiracy than the
one charged in Count One. Accordingly, we affirm.
A
Pinkerton instruction allows a jury to find a defendant
guilty of substantive offenses committed by coconspirators during
and in furtherance of the conspiracy, even if the defendant did not
directly participate in the substantive offense.
See Pinkerton,
328 U.S. at 645–48. “Each party to a continuing conspiracy may be
vicariously liable for substantive criminal offenses committed by a
co-conspirator during the course and in the furtherance of the con-
spiracy, notwithstanding the party’s non-participation in the of-
fenses or lack of knowledge thereof.”
United States v. Silvestri,
409 F.3d 1311, 1335 (11th Cir. 2005) (emphasis omitted) (internal
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10 Opinion of the Court 21-12328
quotation marks omitted). For liability to attach, the substantive
offense must be a “reasonably foreseeable consequence of the con-
spiracy.”
Id. at 1336 (internal quotation marks omitted).
“[A] district court does not err in giving a
Pinkerton instruc-
tion if the evidence was sufficient for a reasonable jury to have con-
cluded, beyond a reasonable doubt, that the substantive counts
were reasonably foreseeable consequences of the conspiracy al-
leged in the indictment.”
United States v. Shabazz, 887 F.3d 1204,
1220 (11th Cir. 2018) (alteration adopted) (internal quotation marks
omitted).
Pagan’s argument focuses on the precise wording used in
the indictment compared to the jury instructions. Pagan was
charged in the conjunctive in both Counts One and Two. That is,
both her charge for conspiracy to distribute a controlled substance
and her charge for distribution of a controlled substance resulting
in death alleged that the controlled substance contained heroin
and
fentanyl. The jury instructions, conversely, were given in the dis-
junctive, allowing the jury to find Pagan guilty of conspiracy to dis-
tribute heroin
or fentanyl.
Pagan does not dispute that “where an indictment charges
in the conjunctive several means of violating a statute, a conviction
may be obtained on proof of only one of the means, and accord-
ingly the jury instruction may properly be framed in the disjunc-
tive.”
United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir.
2000). Instead, she points to language in the jury instruction on
Count Two identifying only fentanyl as the “but-for” cause of
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21-12328 Opinion of the Court 11
death. She contends that because the jury instructions in Count
One were given in the disjunctive, and because only fentanyl was
mentioned in Count Two as to the “but-for” cause of death, the
jury could have found the existence of two separate conspiracies—
one involving heroin, the other fentanyl—and held Pagan liable for
a substantive offense carried out in furtherance of the fentanyl con-
spiracy, without first finding that she joined in that underlying fen-
tanyl conspiracy.4 We reject her argument.
In its
Pinkerton instruction, the court properly instructed
the jury that to find Pagan guilty on Count Two, it had to conclude
that (1) during the conspiracy a conspirator committed the addi-
tional crime charged to further the conspiracy’s purpose, (2) Pagan
was a knowing and willful member of the conspiracy when the
crime was committed, and (3) it was reasonably foreseeable that a
coconspirator would commit the crime as a consequence of the
conspiracy. The
Pinkerton instruction told the jury that it could
4 Pagan also points to the jury’s verdict form, which included a special finding
as to the weight of the heroin at issue in the conspiracy, as evidence that the
jury could have concluded Pagan was engaged in a conspiracy involving only
heroin, not fentanyl. But the only significance of the jury’s determination that
the conspiracy involved at least a kilogram of heroin is that this fact increases
the statutory minimum sentence and thus must be proven to a jury beyond a
reasonable doubt.
See Alleyne v. United States, 570 U.S. 99, 104 (2013);
Ap-
prendi v. New Jersey, 530 U.S. 466, 490 (2000). A conspiracy involving a kilo-
gram or more of heroin is subject to an enhanced penalty of 20 years’ to life
imprisonment, whereas crimes involving a detectable amount of fentanyl are
subject to zero to 20 years’ imprisonment.
See 21 U.S.C. § 841(b)(1)(A),
(b)(1)(C).
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12 Opinion of the Court 21-12328
find Pagan guilty on Count Two only if it first found Pagan “guilty
of the crime of conspiracy
as charged in Count One.” Doc. 143 at 7
(emphasis added). Count One charged Pagan with conspiracy to
distribute “a controlled substance”; to obtain a conviction on this
count the government was not required to prove she knew which
controlled substance was involved.
See United States v. Colston, 4
F.4th 1179, 1187–88 (11th Cir. 2021) (“[T]he defendant must know-
ingly possess, and intend to distribute, a controlled substance, but
need not know which substance it is.”). The district court further
explained that the jury must follow all of the court’s instructions
considered as a whole. Based on the direct reference in the jury in-
structions to the conspiracy as charged in Count One, the jury was
precluded from convicting Pagan on the substantive offense in
Count Two based on a separate, uncharged conspiracy not encom-
passed by Count One.
The language in Count Two Pagan points to does not save
her argument. Before addressing the findings necessary to trigger
§ 841(b)(1)(C)’s enhanced penalty for distribution resulting in
death, the court instructed the jury on the elements of distribution
charged in Count Two:
The Defendant can be found guilty of this crime only
if all the following facts are proved beyond a reasona-
ble doubt: (1) the Defendant knowingly or intention-
ally distributed a controlled substance, that is a mix-
ture and substance containing a detectable amount of
heroin or fentanyl; and (2) the Defendant knew at the
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21-12328 Opinion of the Court 13
time of distribution that the substance she distributed
was a controlled substance.
Doc. 143 at 8. The court then instructed the jury, “[i]f you deter-
mine that the Defendant is guilty of distributing a mixture or sub-
stance containing fentanyl, you will then need to determine if
[Jones’s] use of that mixture or substance was the ‘but-for’ cause of
[her] death.”
Id. at 9. Evaluating this language in context, we can-
not say that the instructions permitted the jury to convict Pagan on
Count Two based on a completely different conspiracy from the
one charged in Count One.
See United States v. Cochran, 683 F.3d
1314, 1320 (11th Cir. 2012) (“It is an established principle that we
evaluate a jury instruction in the context of the overall charge.”).
Moreover, Bonifacio testified that she had always believed
she was selling heroin, not fentanyl, and the government presented
evidence that the substances are nearly indistinguishable by sight
alone. Even if the jury found that the coconspirators to the conspir-
acy charged in Count One intended to distribute only heroin, based
on this evidence the jury nonetheless could have found that Boni-
facio sold the fentanyl that caused Jones’s death in furtherance of
the same conspiracy.
See Colston, 4 F.4th at 1188 ([W]hen the gov-
ernment charges violations of § 841(a)(1) and § 846, and mentions
the specific drug involved to seek enhanced penalties under
§ 841(b)(1), it needs to prove the defendant’s mens rea only for the
substantive violation, not for the specific drug charged.”).
Taken as a whole, the jury instructions did not allow the jury
to convict Pagan of the substantive offense in Count Two based on
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14 Opinion of the Court 21-12328
a different conspiracy than the one described in Count One.
See
Prather, 205 F.3d at 1270. The district court specifically directed the
jury that it could find Pagan vicariously liable for Count Two only
if it first found Pagan “guilty of the crime of conspiracy as charged
in Count One,” that her coconspirator committed the crime
charged in Count Two, and that Pagan could have reasonably fore-
seen that her coconspirator would commit the crime. Doc. 143 at
7. Because we presume that jurors follow the district court’s in-
structions, we affirm.
B. The district court did not abuse its discretion by admit-
ting text messages between Jones and Bonifacio.
Pagan next contends the district court abused its discretion
in admitting text messages between Jones and Bonifacio. In these
text messages, Jones and Bonifacio arranged drug purchases in the
days leading up to Jones’s death. Pagan argues that these messages
should have been excluded as hearsay because they were intro-
duced to prove the truth of the matter asserted and did not fall
within any of the hearsay exceptions. We disagree.
An out-of-court statement offered in evidence to prove the
truth of the matter asserted in the statement is hearsay. Fed. R.
Evid. 801(c). Hearsay is inadmissible unless the Federal Rules of
Evidence, a federal statute, or rules prescribed by the Supreme
Court provide otherwise. Fed. R. Evid. 802.
Statements “offered as a basis for inferring something
other
than the matter asserted” are not hearsay.
United States v. Cruz,
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21-12328 Opinion of the Court 15
805 F.2d 1464, 1478 (11th Cir. 1986) (internal quotation marks omit-
ted). Thus, an out-of-court statement admitted only to show its ef-
fect on the listener is not hearsay.
Id. “Likewise, out-of-court dec-
larations that are more in the nature of an order or a request and
that, to a large degree, are not even capable of being true or false
are also not hearsay.”
Id.;
see also United States v. Rivera, 780 F.3d
1084, 1092 (11th Cir. 2015) (questions and statements were “inca-
pable of being true or false and thus [were] not hearsay”).
What is more, statements used against an opposing party
“made by the party’s coconspirator during and in furtherance of
the conspiracy” are not hearsay. Fed. R. Evid. 801(d)(2)(E). To in-
troduce a statement of a coconspirator under this Rule, “the gov-
ernment must prove by a preponderance of the evidence that (1) a
conspiracy existed, (2) the conspiracy included the declarant and
the defendant against whom the statement is offered, and (3) the
statement was made during the course of and in furtherance of the
conspiracy.”
United States v. Underwood, 446 F.3d 1340, 1345–46
(11th Cir. 2006).
The district court did not abuse its discretion when it admit-
ted evidence about the text messages because the text messages
contained no hearsay. The text messages sent by Bonifacio were
not hearsay because they were coconspirator statements. And the
text messages sent to Bonifacio did not constitute hearsay because
they were not introduced for the truth of the matter asserted.
We begin with the text messages Bonifacio sent. They were
not hearsay because they were coconspirator statements. Pagan
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16 Opinion of the Court 21-12328
conceded, and the evidence presented below established, that she
conspired with Bonifacio to distribute heroin. She argues, how-
ever, that the government failed to show that the messages were
sent in furtherance of the conspiracy. But the government pre-
sented evidence that Pagan supplied Bonifacio with heroin and that
Bonifacio sold that heroin to Jones. Messages regarding their her-
oin sales were therefore sent in furtherance of that conspiracy.
See
United States v. Byrom, 910 F. 2d 725, 736 (11th Cir. 1990) (state-
ments regarding plans for future drug smuggling trip were in fur-
therance of the conspiracy). To the extent any of Bonifacio’s mes-
sages regarding heroin sales were offered for the truth of the matter
asserted, they constituted coconspirator statements admissible un-
der Rule 801(d)(2)(E).
Pagan argues next that even if Bonifacio’s messages about
the drug purchases were admissible as coconspirator statements, a
portion of the messages should have been excluded because they
were unrelated to the conspiracy. Specifically, she points to mes-
sages regarding Jones’s retrieval of Bonifacio’s medication from a
pharmacy.
In one of the messages sent to the unsaved number, Jones
asked Bonifacio for her full name so that Jones could pick up a pre-
scription for her. Pagan argues this exchange was unrelated to and
independent of the conspiracy between Pagan and Bonifacio and
that it was offered to prove the truth of the matter asserted: that
the unsaved number in fact belonged to Bonifacio.
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21-12328 Opinion of the Court 17
Even assuming that this statement was not in furtherance of
the conspiracy and constituted hearsay, any error was harmless. At
most, the message showed that the unsaved number belonged to
Bonifacio—a fact that the government had ample other evidence
to prove.
See Rivera, 780 F.3d at 1093. The evidence clearly estab-
lished that Bonifacio was the owner of both phones. Using existing
records, the police determined that the saved number belonged to
Bonifacio. Based on the content of the messages, the police also
determined the two numbers likely belonged to the same person.
Upon her arrest, Bonifacio was in possession of both phones, and
Bonifacio testified at trial that both phones belonged to her. Be-
cause the government introduced sufficient evidence to prove that
Bonifacio owned the phone, any error “did not have a substantial
influence on the outcome of the case” and thus does not warrant
reversal.
United States v. Langford, 647 F.3d 1309, 1323 (11th Cir.
2011);
see also United States v. Docampo, 573 F.3d 1091, 1097 (11th
Cir. 2009) (holding that admission of hearsay “alone does not man-
date a reversal” unless it had “a substantial impact upon the verdict
of the jury”).
In addition, Jones’s messages to Bonifacio were not hearsay.
In these messages, Jones requested drugs and arranged times to
pick up drugs in the days immediately preceding her death. But the
messages sent from Jones were not assertive in nature. Rather, they
were “more in the nature of an order or a request.”
Cruz, 805 F.2d
1464, 1478. None of these messages was offered for the truth of the
matter asserted because these statements are incapable of being
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18 Opinion of the Court 21-12328
proven true or false.
See Rivera, 780 F.3d at 1092–93. Instead, they
were offered to show their effect on Bonifacio and to provide con-
text for Bonifacio’s responses.
See id. (rejecting argument that
statements by third party on tape recorded conversation should be
excluded wholesale as hearsay and noting that “the jury needed to
hear them to give context to [d]efendant’s responses”);
United
States v. Perry, 14 F.4th 1253, 1273–74 (11th Cir. 2011) (requests for
assistance were offered to show their effect on the listener and
therefore not hearsay).5 We thus reject Pagan’s argument that
these messages constituted hearsay.6
IV. CONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED.
5 Similarly, the text messages sent by law enforcement to Bonifacio from
Jones’s phone after Jones’s death were not hearsay. In these messages, the po-
lice requested drugs with the aim of identifying and arresting Bonifacio. The
messages from law enforcement impersonating Jones were not offered for the
truth of the matter. Instead, the messages were offered to show their effect on
Bonifacio, who responded to the messages by showing up to deliver the re-
quested quantity of drugs, supporting the inference that Bonifacio was the
owner of the unsaved number.
See Cruz, 805 F.2d at 1478.
6 Because the non-assertive statements in the messages that related to drug
exchanges did not constitute hearsay, we need not address Pagan’s arguments
that the statements do not fall within any recognized exception to the general
rule against admission of hearsay.
See United States v. Mateos, 623 F.3d 1350,
1364 (11th Cir. 2010) (“If the statement is not hearsay in the first place, there
is no need for it to fit within an exception to the rule against hearsay.”).
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