Opposition Brief — Kissinger St. Fleur, Petitioner v. United States

No. 20-6367

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

KISSINGER ST. FLEUR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

NICHOLAS L. MCQUAID

Acting Assistant Attorney General

KELLEY BROOKE HOSTETLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

district

court

erred

in

declining

to

give

petitioner’s requested instruction to the jury that a buyer-seller

relationship

is

insufficient

on

distribution conspiracy.

(I)

its

own

to

prove

a

drug-

ADDITIONAL RELATED PROCEEDINGS

United States District Court (M.D. Fla.):

United States v. Gilles, No. 17-cr-131 (June 29, 2018)

United States Court of Appeals (11th Cir.):

United States v. Fernetus, No. 18-12811 (Apr. 15, 2020)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-6367

KISSINGER ST. FLEUR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-26) is not

published in the Federal Reporter, but is reprinted at 810 Fed.

Appx. 712.

JURISDICTION

The judgment of the court of appeals was entered on April 15,

2020.

A petition for rehearing was denied on June 10, 2020.

App. 33.

Pet.

The petition for a writ of certiorari was filed on

November 9, 2020.

28 U.S.C. 1254(1).

The jurisdiction of this Court is invoked under

2

STATEMENT

Following a jury trial in the United States District Court

for the Middle District of Florida, petitioner was convicted on

one count of conspiring to distribute and possess with intent to

distribute cocaine and cocaine base, in violation of 21 U.S.C.

841(b)(1)(A) (2012) and 21 U.S.C. 846, and one count of aiding and

abetting possession with intent to distribute a detectable amount

of cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C), and

18 U.S.C. 2.

Judgment 1; Pet. App. 27.

The district court

sentenced petitioner to 240 months of imprisonment, to be followed

by ten years of supervised release.

29.

Judgment 2-3; Pet App. 28-

The court of appeals affirmed.

Pet. App. 1-26.

1.

of

Petitioner

was

part

a

cocaine-trafficking

organization that operated out of two houses in Orlando, Florida.

Pet. App. 3.

The leader of the organization was Eric Jean Gilles,

who became a cooperating witness.

Ibid.

Police officers placed

a wiretap on conspirators’ cell phones and used pole cameras to

track vehicles and people visiting the drug houses.

Id. at 3-5;

D. Ct. Doc. 332, at 225, 301-302 (Feb. 12, 2018); D. Ct. Doc. 336,

at 8-9, 12-14 (Feb. 14, 2018).

Investigators identified one of petitioner’s co-defendants,

Gerardson Norgaisse, on the wiretap, and linked his calls to his

visits to the houses.

Pet. App. 6; D. Ct. Doc. 336, at 17, 41–

42; D. Ct. Doc. 338, at 106–108 (Feb. 15, 2018).

Gilles testified

3

that Norgaisse came to the houses to deal drugs and would purchase

between an ounce and two-and-a-half ounces of cocaine at a time

-- amounts typically bought by dealers, rather than users.

Pet.

App. 6; D. Ct. Doc. 338, at 116; D. Ct. Doc. 340, at 119-120 (Feb.

16, 2018).

Norgaisse made frequent visits to the drug houses,

usually for fewer than five minutes, and on occasion visited

multiple times in one day.

Pet. App. 6; D. Ct. Doc. 336, at 26-

28.

Gilles

Norgaisse.

testified

that

petitioner

was

frequently

Pet. App. 6; D. Ct. Doc. 338, at 116.

with

Investigators

saw petitioner’s car at the drug houses at least a dozen times,

and at least once he was specifically identified as the driver.

Pet. App. 6; D. Ct. Doc. 336, at 37-44, 242-244; D. Ct. Doc. 340,

at 123.

On multiple occasions, petitioner’s car arrived after

Norgaisse made a phone call to a wiretapped line.

336, at 17.

D. Ct. Doc.

And on at least one occasion, investigators heard

Norgaisse say he would send his “boy[]

petitioner’s car then arrived.

* * *

again,” and

D. Ct. Doc. 336, at 17, 67; Pet.

App. 6; D. Ct. Doc. 338, at 227 (Gilles testifying that Norgaisse

called petitioner his “boy”).

On April 11, 2017, investigators stopped Norgaisse for a

traffic violation after his car was seen at one of the drug houses.

Pet. App. 6.

Petitioner was in the passenger seat.

Ibid.

Petitioner consented to a search, and the officers found 73 grams

4

(two-and-one-half ounces) of cocaine in his underwear.

Ibid.; see

D. Ct. Doc. 334, at 214 (Feb. 13, 2018) (28 grams equivalent to

roughly one ounce); D. Ct. Doc. 336, at 252-254; D. Ct. Doc. 340,

at 120.

2.

A federal grand jury in the Middle District of Florida

charged petitioner with one count of conspiring to distribute and

possess with intent to distribute five kilograms or more of cocaine

and 280 grams or more of cocaine base, in violation of 21 U.S.C.

841(b)(1)(A) (2012) and 21 U.S.C. 846, and one count of aiding and

abetting others in possessing cocaine or cocaine base with intent

to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C),

and 18 U.S.C. 2.

Indictment 1-3, 11.

Petitioner and several co-

defendants were tried in a seven-day jury trial.

Pet. App. 8.

At the close of the government’s case, petitioner requested

a jury instruction that read:

A buyer-seller relationship between a defendant and

another person, standing alone, cannot support a

conviction for conspiracy.

The fact that a defendant may have bought [c]ocaine

from another person is not sufficient without more to

establish that a defendant was a member of the charged

conspiracy.

Instead, a conviction for conspiracy requires proof

of an agreement to commit a crime beyond that of the

mere sale.

5

Pet. App. 8, 18; D. Ct. Doc. 247 (Feb. 16, 2018); D. Ct. Doc. 340,

at 216-217.

The district court denied his request.

Pet App. 8;

D. Ct. Doc. 342, at 5 (Feb. 20, 2018).

Instead, the district court instructed the jury that the

defendants had been charged with a conspiracy “to knowingly possess

with the intent to distribute cocaine or cocaine base.”

Doc. 342, at 16.

D. Ct.

The court explained that a conspiracy is “an

agreement by two or more persons to commit an unlawful act,” and

that the government had to prove that “the defendant knew of the

unlawful purpose of the plan and willfully joined in it.”

16–17.

Id. at

The court further instructed the jury that “simply being

present at the scene of an event or merely associating with certain

people and discussing common goals and interests does not establish

proof of a conspiracy” and that a “person who does not know about

a conspiracy but happens to act in a way that advances some purpose

of one does not automatically become a conspirator.”

Id. at 17–

18.

The jury found petitioner guilty on both charged counts.

Verdict 1-2. The district court sentenced petitioner to 240 months

of imprisonment, to be followed by ten years of supervised release.

Pet App. 28-29.

3.

The court of appeals affirmed.

Pet. App. 1-26.

As

relevant here, petitioner argued that the district court erred in

refusing to give his requested buyer-seller instruction.

Id. at

6

18-19.

20.

The court of appeals rejected that argument.

Id. at 19-

The court stated that “‘a simple buyer-seller controlled

substance transaction does not, by itself, form a conspiracy,’”

and that “the better course here would have been to give the buyerseller instruction,” because the proposed instruction was “legally

correct” and the evidence, viewed in the light most favorable to

petitioner, “could have been interpreted as showing only a buyerseller

relationship.”

Ibid.

(citation

omitted).

The

court

explained, however, that a “district court’s refusal to give a

requested instruction” does not warrant reversal unless “‘the

requested instruction was correct, the charge actually given did

not

substantially

address

it,

and

the

failure

to

give

the

instruction seriously impaired the defendant’s ability to present

an effective defense.’”

Id. at 19 (quoting United States v.

Farias, 836 F.3d 1315, 1328 (11th Cir. 2016), cert. denied, 138 S.

Ct. 68 (2017)).

And relying on its prior precedent, the court

explained that a general conspiracy instruction like the one given

in this case “is sufficient to address the substance of a requested

buyer-seller instruction.”

Id. at 20 (citing United States v.

Lively, 803 F.2d 1124, 1129 (11th Cir. 1986)).

Accordingly, the

court determined that the district court had not “abused its

discretion in refusing to give the buyer-seller instruction.”

Ibid.

7

ARGUMENT

Petitioner renews his contention (Pet. 4-8) that the district

court

erred

in

instruction.

declining

The

court

to

give

his

of

appeals

requested

correctly

buyer-seller

rejected

that

contention, and its factbound determination does not conflict with

any decision of this Court or another court of appeals.

This Court

has recently and repeatedly denied certiorari on the instructional

issue

and

the

related

question

of

what

evidence

suffices

to

distinguish a drug-distribution conspiracy from a buyer-seller

relationship.

See, e.g., Carter v. United States, 140 S. Ct. 2521

(2020) (No. 19-6942); Eichler v. United States, 140 S. Ct. 2517

(2020) (No. 19-6236); Martinez v. United States, 140 S. Ct. 1128

(2020) (No. 19-5346); Davis v. United States, 138 S. Ct. 1441

(2018) (No. 17-7207); Kelly v. United States, 137 S. Ct. 1577

(2017) (No. 16-6388); Randolph v. United States, 135 S. Ct. 1491

(2015) (No. 14-6151); Brown v. United States, 572 U.S. 1060 (2014)

(No. 13-807); Baker v. United States, 558 U.S. 965 (2009) (No. 0810604).

The same result is warranted here.

1.

20)

that

The court of appeals correctly determined (Pet. App. 19the

district

court

permissibly

declined

to

give

petitioner’s proposed buyer-seller instruction.

a.

“[T]he essence of a conspiracy is ‘an agreement to commit

an unlawful act.’”

United States v. Jimenez Recio, 537 U.S. 270,

274 (2003) (quoting Iannelli v. United States, 420 U.S. 770, 777

8

(1975)). In criminal prosecutions involving drug sales, the courts

“have

cautioned

against

conflating

[an]

underlying

agreement” with the agreement needed to find conspiracy.

States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010).

buy-sell

United

A conspiracy

does not arise simply because one person sells goods to another

“know[ing] the buyer will use the goods illegally.”

Co. v. United States, 319 U.S. 703, 709 (1943).

Direct Sales

Rather, the “gist

of conspiracy” in such a circumstance is that the seller not only

“knows the buyer’s intended illegal use” but also “show[s] that by

the sale he intends to further, promote and coöperate in it.”

Id.

at 711.

This Court has made clear, however, that although “single or

casual transactions, not amounting to a course of business,” may

be insufficient to prove a conspiracy, a seller’s attempts to

“stimulate such sales” or “prolonged coöperation with a [buyer’s]

unlawful purpose” can be enough to establish that the seller and

buyer have conspired together.

713 & n.8.

Direct Sales Co., 319 U.S. at 712-

Additional relevant considerations include whether the

buyer or seller exhibits “informed and interested coöperation” or

has a “‘stake in the venture.’”

Id. at 713.

Consistent with that understanding, the courts of appeals

apply

a

fact-specific

inquiry,

considering

all

of

the

circumstances, to determine whether a conspiracy is established

and, relatedly, whether a buyer-seller instruction is appropriate.

9

See United States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008)

(describing

courts’

approaches

to

the

“highly

fact-specific

inquiry into whether the circumstances surrounding a buyer-seller

relationship

establish

an

distribution

conspiracy”);

agreement

see

also,

to

participate

e.g.,

United

in

a

States

v.

Mitchell, 596 F.3d 18, 24-25 (1st Cir. 2010); United States v.

Gibbs, 190 F.3d 188, 197-200 (3d Cir. 1999), cert. denied, 528

U.S. 1131, and 529 U.S. 1030 (2000); United States v. Reid, 523

F.3d 310, 317 (4th Cir.), cert. denied, 555 U.S. 1061 (2008);

United States v. Delgado, 672 F.3d 320, 333-334, 341 (5th Cir.)

(en banc), cert. denied, 568 U.S. 978 (2012); United States v.

Deitz, 577 F.3d 672, 680-682 (6th Cir. 2009), cert. denied, 559

U.S. 984 (2010); Johnson, 592 F.3d at 754-756; United States v.

Ramirez, 350 F.3d 780, 784-785 (8th Cir. 2003); United States v.

Moe, 781 F.3d 1120, 1125-1126 (9th Cir.), cert. denied, 577 U.S.

932 (2015); United States v. Small, 423 F.3d 1164, 1182-1183 (10th

Cir. 2005), cert. denied, 546 U.S. 1155, 546 U.S. 1190, and 547

U.S. 1141 (2006); United States v. Brown, 587 F.3d 1082, 1089-1090

(11th Cir. 2009); United States v. Baugham, 449 F.3d 167, 171-172

(D.C. Cir.), cert. denied, 549 U.S. 966 (2006).

“[I]n

making

that

evaluation,”

courts

have

considered

a

variety of factors, such as “the length of affiliation”; “whether

there is an established method of payment”; “the extent to which

transactions are standardized”; “whether there is a demonstrated

10

level of mutual trust”; and “whether the buyer’s transactions

involved large amounts of drugs.”

Gibbs, 190 F.3d at 199.

The

presence of such factors “suggests that a defendant has full

knowledge of, if not a stake in, a conspiracy.”

Ibid.

Courts

have accordingly relied on those and other similar factors to

determine whether a buyer-seller instruction was not required in

the circumstances of a particular case.

See, e.g., United States

v. Medina, 944 F.2d 60, 65 (2d Cir. 1991) (finding that “the

district court did not err in refusing to give the

* * *

‘buyer-

seller’ instruction” because there was “advanced planning among

the alleged co-conspirators to deal in wholesale quantities of

drugs obviously not intended for personal use”), cert. denied, 503

U.S. 949 (1992), abrogated on other grounds by Bailey v. United

States, 516 U.S. 137, 142-150 (1995); Mitchell, 596 F.3d at 25

(finding that district court did not err in “failing to give a

buyer-seller instruction” because the evidence showed (among other

things) that the defendant “was involved in multiple transactions,

for large, kilogram-quantities of cocaine, for large sums of

money,” and “made pre-arranged purchases from other conspiracy

members”); see also United States v. Mata, 491 F.3d 237, 241-242

(5th Cir. 2007) (stating that failure to give a buyer-seller

instruction

is

not

error

where

the

court

gives

an

“adequate

instruction on the law of conspiracy”), cert. denied, 552 U.S.

1189 (2008); Moe, 781 F.3d at 1128-1129 (similar); United States

11

v. Thomas, 114 F.3d 228, 245-246 (D.C. Cir.) (similar), cert.

denied, 522 U.S. 1033 (1997).

b.

Under those principles, the court of appeals correctly

determined that the district court did not abuse its discretion in

declining to give petitioner’s requested buyer-seller instruction.

Pet. App. 19-20.

“A trial judge,” this Court has explained, “has

considerable discretion in choosing the language of an instruction

so long as the substance of the relevant point is adequately

expressed.”

Boyle v. United States, 556 U.S. 938, 946 (2009).

The district court here could thus permissibly find petitioner’s

requested instruction unnecessary or confusing in light of its

instruction to the jury that a defendant is guilty of conspiracy

only if he or she voluntarily joined in an agreement to distribute

drugs while knowing the purpose of the agreement.

See D. Ct. Doc.

342, at 16-18; Pet. App. 20.

The evidence at trial established that petitioner was a coconspirator in the drug-distribution conspiracy rather than a mere

buyer.

Testimony and other evidence demonstrated that petitioner

served as a courier for Norgaisse, who regularly purchased dealer

quantities of cocaine, sometimes making multiple visits to a drug

house in a single day.

D. Ct. Doc. 336, at 28, 253-254; D. Ct.

Doc. 338, at 26-28; D. Ct. Doc. 340, at 120.

After Norgaisse

placed an order, petitioner often arrived in Norgaisse’s stead; in

one case, he did so after Norgaisse was heard on the wiretap saying

12

he was sending his “boy” to the drug house.

17, 67.

D. Ct. Doc. 336, at

And when police followed Norgaisse and petitioner from

one of the drug houses and stopped them, they found two-and-onehalf ounces of cocaine -- an amount Norgaisse routinely purchased

and

far

more

underwear.

than

one

person

would

use

--

in

petitioner’s

D. Ct. Doc. 334, at 214; D. Ct. Doc. 336, at 20-21,

207, 252-254.

Under the circumstances, the district court thus

did not abuse its discretion in determining that the conspiracy

instructions accurately reflected the law and that no further

instruction was necessary.

2.

Contrary to petitioner’s contention (Pet. 4-8), this

Court’s review is not warranted to resolve a purported disagreement

among the courts of appeals on the application of harmless-error

review, which was not the basis for the decision below.

A

constitutional

error

is

harmless

if

the

government

“prove[s] beyond a reasonable doubt that [it] did not contribute

to the verdict obtained.”

(1967).

held

Chapman v. California, 386 U.S. 18, 24

In Neder v. United States, 527 U.S. 1 (1999), this Court

that

Chapman’s

harmlessness

standard

for

constitutional

errors applies to “improper instructions” that “preclude[d] the

jury

from

offense.”

making

a

finding

on

the

actual

Id. at 9-10 (emphasis omitted).

element[s]

of

the

Every court of appeals

follows that standard, including the court below.

See, e.g.,

United States v. Takhalov, 827 F.3d 1307, 1320-1321 (11th Cir.

13

2016).

In this particular case, however, the court did not even

need to reach the issue of harmlessness, because it found that the

district court did not err in the first place.

The Eleventh Circuit has explained that, “[f]or the denial of

a requested jury instruction to be reversible error, a defendant

must show that the instruction (1) was a correct statement of the

law; (2) was not adequately covered in the instructions given to

the jury; (3) concerned an issue so substantive that its omission

impaired the accused’s ability to present a defense; and (4) dealt

with an issue properly before the jury.”

United States v. Brazel,

102 F.3d 1120, 1139 (1997), cert. denied, 522 U.S. 822 (1997), and

522

U.S.

1060

(1998)

(citation

and

omitted); see Pet. App. 19 (same).

court

of

appeals

acknowledged

internal

quotation

marks

In the decision below, the

that

petitioner’s

“requested

instruction was legally correct” but determined, in light of

precedent,

that

the

rest

of

the

district

court’s

conspiracy

instruction was “sufficient to address the substance of [the]

requested buyer-seller instruction.”

Pet. App. 19-20.

The court

of appeals therefore determined that the district court did not

“abuse[]

its

discretion

in

refusing

instruction petitioner had requested.

The

court

of

appeals’

to

give”

the

precise

Id. at 20.

determination

that

the

jury

instructions as a whole accurately described the elements of the

charged conspiracy offense is a finding that no error occurred,

14

not that the district court committed an error that was harmless.

See Takhalov, 827 F.3d at 1320 (explaining that harmlessness

inquiry applies only if court improperly denied an instruction

that “was not substantially covered by other instructions”).

The

court did not address harmlessness, much less adopt a harmlesserror standard different from the one used in other circuits.

3.

Nor can petitioner demonstrate that he would have been

entitled to a buyer-seller instruction in any other circuit.

The

Seventh

that

Circuit,

for

example,

has

repeatedly

recognized

courts should not give a buyer-seller instruction when conspiracy

liability rests on the defendant’s cooperation with individuals

“on the same side of a” transaction.

F.3d

795,

816

(2015),

cert.

United States v. Cruse, 805

denied,

136

S.

Ct.

1699

(2016)

(“Because a middleman and his principal are on the same side of a

transaction, they cannot have a buyer-seller relationship.”); see

also United States v. Payton, 328 F.3d 910, 912 (7th Cir.), cert.

denied, 540 U.S. 881 (2003) (finding a conspiracy, rather than a

buyer-seller relationship, where defendant’s father testified that

he served as a “runner”); ibid. (“The ‘buyer-seller’ argument is

irrelevant” where “the conspirators are on the same side of the

sale”).

This is such a case.

The evidence shows that petitioner

served as a courier, assisting Norgaisse in procuring dealer

quantities of cocaine.

D.

Ct.

Doc.

340,

at

See Pet. App. 6; D. Ct. Doc. 334, at 214;

120.

Petitioner’s

co-conspiratorial

15

relationship with Norgaisse himself, which is alone sufficient to

support the verdict, was not a buyer-seller relationship at all;

and

his

co-conspiratorial

relationship

with

Gilles

was

in

furtherance of his and Norgaisse’s drug distribution.

Petitioner relies (Pet. 7) on the Seventh Circuit’s decision

in United States v. Gee, 226 F.3d 885 (2000), but that decision

stated only that, “in appropriate situations,” district courts

should instruct juries on the distinction “between a conspiracy

and a mere buyer-seller relationship.”

Id. at 895.

The Seventh

Circuit determined that Gee was “one of those situations” because

the evidence of a conspiracy was “weak” and “as consistent with a

buyer-seller relationship as it was with a conspiracy.”

Ibid.

Indeed, during trial, the district court had “ruled that the

government could not admit coconspirator statements under Fed. R.

Evid. 801(d)(2)(E)” because it “found that the government had not

shown, by a preponderance of the evidence, that a conspiracy

existed between the defendants.”

Id. at 895 n.8. In addition,

although the court of appeals did not quote the district court’s

jury

instructions,

the

court

of

appeals

stated

that

“[t]he

instructions allowed the jury to make a guilty finding without

determining whether the government had proved the existence of a

conspiracy.”

Id. at 895.

The remaining decisions cited by petitioner (see Pet. 8)

likewise do not establish a circuit conflict that warrants this

16

Court’s review.

The Ninth Circuit’s decision in Moe, 781 F.3d

1120, is a factbound application of the general principles set

forth above; like the court of appeals here, the court in Moe found

that notwithstanding some evidentiary support for a buyer-seller

instruction, the district court did not commit error in failing to

give one because the other instructions -- specifically those that

informed the jury of “the general elements of conspiracy” -sufficiently

conveyed

“the

distinction

between

relationship and a co-conspiracy relationship.”

id. at 1125-1129.

a

buyer-seller

Id. at 1128; see

And the First Circuit’s decision in United

States v. Boidi, 568 F.3d 24 (2009), did not concern a buyerseller instruction at all, but instead an instruction for the

lesser-included offense of conspiring to possess a controlled

substance where the defendant was charged with conspiring to

possess a controlled substance with the intent to distribute it.

Id. at 27-30.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Acting Solicitor General

NICHOLAS L. MCQUAID

Acting Assistant Attorney General

KELLEY BROOKE HOSTETLER

Attorney

FEBRUARY 2021