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United States v. Corbett

United States Court of Appeals, First Circuit

September 5, 2017

DAMIEN CORBETT, Defendant, Appellant.


          Michael C. Bourbeau, with whom Victoria M. Bonilla-Argudo and Bourbeau & Bonilla, LLP were on brief, for appellant.

          Renée M. Bunker, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, was on brief, for appellee.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          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 the use or attempted use of a minor in the commission of the offense, see U.S.S.G. § 3B1.4. We affirm.


         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 oxycodone 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 some 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 car so that they could continue their conversation in his car. Gillis complied with this directive and then returned to Corbett's car.

         Later in the conversation, Gillis asked Corbett, "What is it I owe you again?" When Corbett responded "Twenty-six fifty, " Gillis pushed back, "I thought it was twenty[-]five sixty for some reason." Corbett 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, "[T]omorrow 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." Corbett responded, "Alright." The conversation eventually ended, and Gillis left Corbett's car.

         At this point, multiple officers converged on the scene, and 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 oxymorphone, 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 "[m]aybe a month or a couple of months" of communicating 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 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. In addition to oxycodone, Corbett also supplied Gillis with "Suboxone, Opanas, Dilaudid, [and other] pharmaceuticals."[11]

         Gerrish also testified against Corbett. He told the jury that he agreed with Gillis to sell oxycodone pills that he would purchase from her. Gerrish also explained that he sometimes was present when Corbett delivered pills to Gillis. On those approximately five occasions, Gerrish saw Corbett hand Gillis "[a] baggie with pills in it." On cross-examination, however, Gerrish acknowledged that, when he was interrogated by police after his arrest, he denied that he had seen any hand-to-hand exchange of pills between Corbett and Gillis. He explained, "At that time I denied a lot of things."

         After the government rested its case, Corbett moved for a judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Procedure, arguing that the evidence was insufficient. The district court denied the motion. In his closing argument, defense counsel attacked the credibility of both Gillis and Gerrish. Gerrish, defense counsel stressed, had testified inconsistently with what he initially told investigators about observing pill exchanges between Corbett and Gillis. Defense counsel painted Gillis as a liar who was seeking to falsely pin the blame on Corbett in the hopes of receiving leniency for her drug-dealing ways. Finally, defense counsel also emphasized that police did not find any drugs on Corbett or in his car when they arrested him.

         In its final charge to the jury, the district court instructed the jury on the elements of conspiracy, and told the jurors that they should consider the testimony of the cooperating witnesses, Gillis and Gerrish, "with caution" because "[t]hey may have had reason to make up stories or exaggerate what others did because they wanted to help themselves." At the conclusion of its instructions, the court asked counsel whether they had any objections or additions to the instructions just delivered; defense counsel responded that he did not.

         During their deliberations, the jurors sent multiple notes to the judge, two of which are relevant to this appeal. The first note, which was submitted to the court approximately two-and-a-half hours after deliberations began, asked: "Can you please advise us regarding inability to reach a verdict? Both sides are adamant." The court responded, "In response to your note, I advise that you again review the evidence and my instructions and continue to deliberate." Defense counsel informed the court that he had no objection to this response.

         The second note from the jurors read: "Does the intention of the defendant to pick up the drugs ([O]panas) [from Gillis's home] as evidenced in the audiotape fall within the scope of the indictment charges?" (Asterisk omitted.) After the parties initially disagreed on how to respond, the district court briefly set forth his intended response. Both before and after the court discussed its response, the judge told the parties, "I'm not wedded to this." The court proposed the following response: "In response to your note (Court Exhibit 6) and to answer your question, you need to determine if the conspiracy charged in the indictment existed, what was the scope and purpose of that conspiracy, and if the defendant willfully joined the conspiracy based on the evidence of his own words or deeds." When the district court solicited the parties' views on its proposed response, defense counsel stated, "I think it restates the instruction already given, so I have no problem."

         The jury ultimately found Corbett guilty. The presentence investigation report (PSR) recommended a two-level enhancement under U.S.S.G. § 3B1.4 for Corbett's use of a minor, Gillis, during the conspiracy. Corbett objected to this aspect of the PSR. The district court applied the enhancement, accepting the government's argument that the evidence showed that Corbett had groomed[12] Gillis to ...

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