Petition for Writ of Certiorari — Jawayne Watkins, Petitioner v. United States

Supreme Court briefAug 18, 2026

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No. _________

__________________________________________

In The

Supreme Court of the United States

________________________

Jawayne Watkins, AKA Weezy,

Petitioner,

The United States of America,

Respondent.

_______________________________________________________

On Petition for Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

_______________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_______________________________________________________

Parker R. MacKay

The Law Office of Parker R. MacKay

3110 Delaware Avenue

Kenmore, New York 14217

(716) 803-8166

Counsel for Petitioner Jawayne Watkins

QUESTIONS PRESENTED

1. Whether the Fifth Amendment’s Grand Jury Clause permits a conviction for

distributing a specifically charged Schedule I controlled substance to rest on

forensic proof that is, by the government’s own account, incapable of

distinguishing the charged substance from chemically related isomers that were

lawful at the time of the offense.

2. Whether the “death results” enhancement of 21 U.S.C. § 841(b)(1)(C) is satisfied

by expert testimony that death resulted from an unidentified member of an

isomer family, only one member of which was a controlled substance.

PARTIES TO THE PROCEEDING

Petitioner is Jawayne Watkins. Respondent is the United States of America.

No corporate parties are involved in this case. The caption of this case contains the

names of all parties.

RELATED CASES

This case arises from the following proceedings in the Western District of

New York and the Second Circuit.

United States v. Watkins, No. 18-CR-32-A, United States District Court

for the Western District of New York.

United States v. Watkins, No. 22-1296-cr, United States Court of

Appeals for the Second Circuit.

No other proceedings directly related to this case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

RELATED CASES ......................................................................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 1

STATEMENT OF THE CASE ....................................................................................... 2

The Charge and the Limits of Post-Mortem Toxicology Proof ............... 3

Trial Proceedings...................................................................................... 4

The District Court’s Rulings .................................................................... 5

The Second Circuit’s Affirmance by Summary Order ............................ 6

REASONS FOR GRANTING THE WRIT .................................................................... 7

II.

The Decision Below Permits Conviction on a Charge

the Grand Jury Did Not Return and the Government

Could Not Prove ....................................................................................... 8

The Grand Jury Clause Requires Proof of the Specific

Offense Charged in the Indictment .............................................. 8

The Identity of the Substance in this Case Separates

Guilt from Innocence ..................................................................... 9

Proof That Is Merely “Consistent With” the Charged

Substance Cannot Sustain the Conviction ................................. 10

The Question Is Important and Will Recur ................................ 14

The Decision Below Conflicts With Burrage’s But-For

Causation Requirement ......................................................................... 15

Burrage Requires Proof Beyond a Reasonable Doubt

That the Charged Substance Caused the Death ........................ 15

iii

III.

The Government’s Own Expert Could Not Identify

the Substance, Much Less Prove That It Caused

A.C.’s Death ................................................................................. 16

This Case Is an Ideal Vehicle for Review .............................................. 17

CONCLUSION AND PRAYER FOR RELIEF ........................................................... 18

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT, FILED MAY 21, 2026 ...................... 1a

APPENDIX B — JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF NEW YORK, FILED

JUNE 13, 2022 ..................................................................................................... 14a

APPENDIX C — DECISION AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW

YORK, FILED AUGUST 24, 2021 ....................................................................... 21a

TABLE OF AUTHORITIES

Page(s)

Cases:

Burrage v. United States,

571 U.S. 204 (2014) ............................................................................ 8, 15, 16, 17, 18

Ex parte Bain,

121 U.S. 1 (1887) ........................................................................................................ 8

In re Winship,

397 U.S. 358 (1970) .................................................................................................. 11

Jackson v. Virginia,

443 U.S. 307 (1979) .................................................................................................. 11

McFadden v. United States,

576 U.S. 186 (2015) .............................................................................................. 9, 10

Stirone v. United States,

361 U.S. 212 (1960) .......................................................................................... 8, 9, 13

United States v. Bogusz,

43 F.3d 82 (3d Cir. 1994).......................................................................................... 12

United States v. D’Amelio,

683 F.3d 412 (2d Cir. 2012)........................................................................................ 9

United States v. Lorenzo,

534 F.3d 153 (2d Cir. 2008)...................................................................................... 11

United States v. McGinn,

787 F.3d 116 (2d Cir. 2015)...................................................................................... 12

United States v. Miller,

471 U.S. 130 (1985) .................................................................................................... 8

United States v. Patrick,

983 F.2d 206 (11th Cir. 1993) ............................................................................. 11-12

United States v. Prawl,

149 F.4th 176 (2d Cir. 2025) ................................................................................ 9, 10

United States v. Ramsdale,

61 F.3d 825 (11th Cir. 1995) .................................................................................... 12

Statutes and Other Authorities:

U.S. CONST. AMEND. V ............................................................................ 1, 2, 7, 8, 17, 18

21 U.S.C. § 802(6) .......................................................................................................... 9

21 U.S.C. § 841 ......................................................................................................... 4, 10

21 U.S.C. § 841(a) .................................................................................................... 9, 15

21 U.S.C. § 841(a)(1) .............................................................................................. 2, 3, 9

21 U.S.C. § 841(b)(1)(C) ....................................................................................... 2, 3, 15

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

82 Fed. Reg. 20544 ......................................................................................................... 3

82 Fed. Reg. 20545 ............................................................................................. 4, 13, 14

82 Fed. Reg. 61700 ................................................................................................... 3, 14

83 Fed. Reg. 5042 ..................................................................................................... 3, 14

86 Fed. Reg. 14707 ......................................................................................................... 3

88 Fed. Reg. 85104 ......................................................................................................... 3

Federal Rule of Criminal Procedure 29 .............................................................. 1, 5, 18

Federal Rule of Criminal Procedure 33 .............................................................. 1, 5, 18

Pub. L. No. 119-26 (2025) ........................................................................................ 3, 14

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jawayne Watkins, an inmate currently incarcerated in the Bureau

of Prisons, FCI Danbury, by and through undersigned counsel, Parker R. MacKay,

Esq., respectfully petitions this Court for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The summary order of the United States Court of Appeals for the Second

Circuit (Walker, Park, and Lee, JJ.) is reported at No. 22-1296-cr, 2026 WL

1425536 (2d Cir. May 21, 2026) and is reproduced at pages 1 to 13 of the Appendix.

The District Court’s decision denying Petitioner’s motion pursuant to Federal Rules

of Criminal Procedure 29 and 33 is reported at No. 18-CR-32-A, 2021 WL 3732298

(W.D.N.Y. Aug. 24, 2021) and is reproduced at pages 21 to 38 of the Appendix.1

JURISDICTION

The Court of Appeals entered its summary order and judgment on May 21,

2026. Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1), having

timely filed this petition within 90 days of that judgment.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides, in relevant

part:

“No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury. . . .”

1 The “Appendix” is hereinafter referred to as “A.__.”

Section 841(a)(1) of Title 21 provides, in relevant part, that it shall be unlawful

for any person knowingly or intentionally “to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a controlled substance.”

Section 841(b)(1)(C) of Title 21 specifically provides, in relevant part:

“[I]f death or serious bodily injury results from the use of

such substance[,] [such person] shall be sentenced to a

term of imprisonment of not less than twenty years or more

than life. . . .”

STATEMENT OF THE CASE

In November 2017, 4-fluoroisobutyryl fentanyl (“4-FIBF”) was a Schedule I

controlled substance, but its positional isomers—3-fluoroisobutyryl fentanyl (“3FIBF”) and 2-fluoroisobutyryl fentanyl (“2-FIBF”), which differ only in the location

of a single fluorine atom—were not federally controlled. Post-mortem toxicology

could not distinguish among these isomers. Petitioner Jawayne Watkins was

indicted for, and convicted at trial of, distributing heroin and 4-FIBF with death

resulting in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), based on a

toxicology report identifying only “meta/para-fluoroisobutyryl fentanyl” in the

decedent’s blood and corresponding expert testimony attributing death to the

unidentified fluoroisobutyryl analogue family. The Second Circuit affirmed

Petitioner’s convictions but acknowledged that “the toxicology analysis did not

prove” the presence of the charged isomer. A.4. It instead held that the forensic

proof at trial was “consistent with” the government’s theory. A.4. This shift in the

quantum of proof necessary to convict was inconsistent with the Fifth Amendment’s

Grand Jury Clause and 21 U.S.C. § 841(b)(1)(C)’s “but for” causation requirement.

The Charge and the Limits of Post-Mortem Toxicology Proof

Petitioner was charged by a second superseding indictment with four counts

arising from alleged narcotics trafficking in the Buffalo, New York area in 2017.

Count 4—the most serious count and the focus of this Petition—charged that

Petitioner possessed with intent to distribute and distributed heroin and 4-FIBF,

and that the death of A.C. (his girlfriend) resulted from the use of those substances,

all in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The grand jury specifically

named 4-FIBF as the Schedule I controlled substance.

4-FIBF is one of a family of fentanyl isomers distinguished only by the

position of a fluorine atom on the isobutyryl fentanyl molecule. The “4” denotes that

the fluorine occupies the “para” position; in 3-fluoroisobutyryl fentanyl (“3-FIBF”)

the fluorine occupies the “meta” position; in 2-fluoroisobutyryl fentanyl (“2-FIBF”),

the “ortho” position. During the charged offense period (June through November 10,

2017), 4-FIBF had been temporarily scheduled by the Drug Enforcement

Administration as a Schedule I controlled substance effective May 3, 2017. 82 Fed.

Reg. 20544. 3-FIBF was not separately scheduled until 2018: the DEA issued a

notice of intent to temporarily schedule fentanyl-related substances on December

29, 2017, 82 Fed. Reg. 61700, and a temporary scheduling order on February 6,

2018, 83 Fed. Reg. 5042. A permanent rule specific to 3-FIBF was issued on

December 7, 2023, 88 Fed. Reg. 85104, and Congress made the fentanyl-wide

placement permanent in 2025. HALT Fentanyl Act, Pub. L. No. 119-26 (2025). 2FIBF was not individually proposed for scheduling until 2021. 86 Fed. Reg. 14707.

Possession or distribution of 3-FIBF or 2-FIBF during June to November 2017 was

therefore not a federal controlled-substance offense under §841.

Post-mortem forensic toxicology could not distinguish among these isomers.

As the Chief County Toxicologist for Erie County, New York testified at trial, the

instrument used to analyze A.C.’s blood “is not able to distinguish whether the

fluoro is in the 3 position or the 4 position.” The DEA itself implicitly acknowledged

this limitation when it scheduled 4-FIBF in 2017, noting that deaths attributable to

4-FIBF were likely underreported because “standard immunoassays may not

differentiate this substance from fentanyl.” 82 Fed. Reg. at 20545. Accordingly, the

toxicology report on A.C.’s blood identified the substance present only as

“meta/para-fluoroisobutyryl fentanyl”—a designation that encompasses both the

charged, scheduled isomer (4-FIBF) and an uncharged isomer that was lawful at

the time (3-FIBF).

Trial Proceedings

At trial, the government introduced evidence of controlled purchases from

Petitioner by a confidential informant, including one on July 13, 2017, and one on

November 9, 2017. Gas chromatography testing of those seized narcotics—which,

unlike post-mortem toxicology, can differentiate isomers—confirmed that the

controlled-buy samples contained heroin and 4-FIBF. But no evidence established

that the controlled-buy drugs were the drugs A.C. ingested on the night of

November 9-10, 2017 when she passed away. The drugs sold to the informant were

not recovered; no drugs were found on or near A.C.; and the investigating detective

found no heroin or drug packaging among A.C.’s personal effects. The trial evidence

also showed that A.C. spent part of the evening of November 9 away from

Petitioner, visiting family at her mother’s residence, while Petitioner went to a

different address.

A.C. was found unresponsive on November 10, 2017 and was pronounced

dead that day. The government presented Dr. Stacey Hail as a medical toxicology

expert in its case-in-chief, who opined that A.C. would not have died “but for the

fluoroisobutyryl fentanyl laced heroin” in her system. On cross-examination, Dr.

Hail acknowledged that she had not reviewed any report demonstrating “that it was

the 4-fluoro analogue as opposed to the 3-fluoro analogue found in the decedent,”

and conceded that “[i]t is next to impossible to isolate these different isomers from

each other.”

The defense called Dr. Katherine Maloney, the Deputy Chief Medical

Examiner of Erie County, who performed A.C.’s autopsy, in its case-in-chief. Dr.

Maloney testified that the cause of death was a “mixed drug intoxication” that

“included an unknown fentanyl analog,” together with heroin, cocaine, and ethanol,

and that singling out the fentanyl analogue as the sole but-for cause of death “would

be arbitrary,” because there was no quantitative measurement of the

fluoroisobutyryl fentanyl in A.C.’s blood.

The District Court’s Rulings

At the close of the government’s proof, and again by post-trial motion under

Rules 29 and 33, Petitioner argued that the government failed to prove that the

substance in A.C.’s system was 4-FIBF, and that the variance between the indicted

analogue and the trial proof amended the indictment. The District Court denied the

motions. In its oral ruling denying the motions during trial, the District Court

reasoned that “[e]ither [isomer] would have caused the death of the victim in this

case,” and, appearing to waver in its pronouncement, it noted that Petitioner “was

clearly on notice as to what the substance—variation of the substance was present.”

It further found in its post-trial written decision that “substantial circumstantial

evidence that the heroin A.C. used was laced with the 4-flu[o]roisobutyryl fentanyl

isomer charged in the Indictment.” A.11. The Second Circuit echoed this finding.

See A.4. The District Court did not address the fact that one of the two isomers the

toxicology could not exclude was not a controlled substance during the charged

period.

The jury convicted Petitioner on all counts. By special verdict on Count 4, the

jury found that A.C.’s death resulted from “the heroin and 4-fluoroisobutyryl

fentanyl” Petitioner possessed with intent to distribute or distributed. Petitioner

was sentenced principally to 360 months’ imprisonment—a sentence driven by

Count 4’s twenty-year mandatory minimum and Guidelines range of life.

The Second Circuit’s Affirmance by Summary Order

The Second Circuit affirmed by summary order on May 21, 2026. Its decision

acknowledged the gap in forensic evidence, noting that “the toxicology analysis did

not prove that the fentanyl analogue present in A.C.’s body was 4-fluoroisobutyryl

fentanyl.” A.4. The court nevertheless declined to find a constructive amendment,

reasoning that: “the proof at trial need not, indeed cannot, be a precise replica of the

charges contained in an indictment”; that the indictment gave Petitioner “notice of

the core of criminality to be proven at trial” and that Petitioner “d[id] not claim that

he lacked such notice”; that “the toxicology analysis was consistent with the

government’s theory”; and that the District Court “properly found” substantial

circumstantial evidence that the heroin A.C. used was laced with the charged

isomer. A.4.

Although the government argued that Petitioner’s reliance on the

unscheduled status of 3-FIBF was not specifically presented to the District Court,

the panel appeared to bypass that argument, instead reviewing the constructive

amendment claim de novo and rejecting it on the merits. The circuit court did not

address the legal significance of the fact that the alternative isomer the toxicology

could not exclude was not a controlled substance during the charged period.

REASONS FOR GRANTING THE WRIT

This petition presents a question of law: may the government charge a

defendant with distributing one specifically-named controlled substance, and then

convict him of that offense, on forensic proof that concededly cannot establish that

the charged substance—rather than a chemically related, lawful substance—was

present? The courts below answered yes, so long as the proof was “consistent with”

the charged substance and the defendant had “notice.” That answer cannot be

reconciled with the Fifth Amendment, with the requirement of proof beyond a

reasonable doubt of every element of the offense, or with this Court’s decision in

Burrage v. United States, 571 U.S. 204 (2014) regarding “but for” causation.

Because of mismatches in testing technology, and the availability of synthetic

drugs, the question will continue to arise in serious federal prosecutions involving

narcotics that are not specifically scheduled.

The Decision Below Permits Conviction on a Charge the Grand Jury

Did Not Return and the Government Could Not Prove.

The Grand Jury Clause Requires Proof of the Specific Offense

Charged in the Indictment.

The Fifth Amendment guarantees that “[n]o person shall be held to answer

for a capital, or otherwise infamous crime, unless on a presentment or indictment of

a Grand Jury.” U.S. CONST AMEND V. That guarantee functions as an indispensable

check on prosecutorial power by interposing a body of citizens between the

government’s accusation and the defendant’s trial. It is fundamental that “a court

cannot permit a defendant to be tried on charges that are not made in the

indictment against him.” Stirone v. United States, 361 U.S. 212, 217 (1960); see Ex

parte Bain, 121 U.S. 1, 7 (1887). After an indictment is returned, “its charges may

not be broadened through amendment except by the grand jury itself.” Stirone, 361

U.S. at 215-216. So, while the government’s proof may permissibly narrow the

charge, it may never broaden it. See United States v. Miller, 471 U.S. 130, 138-145

(1985).

A constructive amendment occurs when “either the trial evidence or jury

charge broadens the possible bases for conviction from that which appeared in the

indictment, such that it is uncertain whether the defendant was convicted of

conduct that was the subject of the grand jury’s indictment.” United States v. Prawl,

149 F.4th 176, 186-187 (2d Cir. 2025). Constructive amendment is per se reversible

error; that is, courts may not apply harmless-error analysis. Stirone, 361 U.S. at

217-219; United States v. D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012).

These principles bear directly on this case because the specification in the

indictment (the identity of the fentanyl isomer) is what separated criminal conduct

from lawful conduct. Only 4-FIBF was scheduled during the offense period; its

forensically indistinguishable relatives were not. The identity of the substance was

therefore not a detail of how the offense was committed. It determined whether a

federal crime had been committed at all, and whether the “death results” element—

which requires that death result from the use of a controlled substance distributed

in violation of § 841(a)—could be established. And the government made a

deliberate charging choice by electing to name a single specific isomer in the

indictment to the exclusion of others.

The Identity of the Substance in this Case Separates Guilt from

Innocence.

Section 841(a)(1) makes it unlawful “knowingly or intentionally” to distribute

“a controlled substance.” A “controlled substance” is a scheduled substance. 21

U.S.C. § 802(6). In McFadden v. United States, 576 U.S. 186 (2015), this Court

explained that the knowledge element may be established in either of two ways: by

“evidence that a defendant knew that the substance with which he was dealing is

some controlled substance,” even if he did not know which one, or by evidence that

the defendant knew the identity of the substance he possessed, where that

substance is in fact listed on the federal drug schedules. Id. at 188-189, 192. But

both routes require that the substance distributed is, in fact, a controlled substance.

The law’s flexibility as to the defendant’s knowledge of the substance’s

precise identity exists only because the objective, scheduled status of the substance

supplies the criminality. Neither route can be satisfied in this case if the substance

at issue was 3-FIBF. In November 2017, 3-FIBF was not “some controlled

substance,” so the first route fails; and knowledge of its identity was knowledge of a

lawful compound, so the second fails as well. No quantum of mens rea can make

distribution of an unscheduled compound a §841 offense.

The gap in forensic evidence here evokes a Grand Jury Clause problem rather

than an ordinary evidentiary dispute. The grand jury found probable cause for a

charge whose element spoke to a compound that was, in fact, scheduled. A petit jury

permitted to convict on proof equally consistent with 3-FIBF may have convicted on

a set of facts that describes no federal offense, much less the offense the grand jury

returned. Where the trial proof leaves it “uncertain whether the defendant was

convicted of conduct that was the subject of the grand jury’s indictment,” Prawl, 149

F.4th at 186-187, and one of the open possibilities was lawful conduct, the trial did

not merely adjust the indictment’s details. It substituted an accusation that the

grand jury did not return.

Proof That Is Merely “Consistent With” the Charged Substance

Cannot Sustain the Conviction.

The Second Circuit acknowledged that “the toxicology analysis did not prove

that the fentanyl analogue present in A.C.’s body was 4-fluoroisobutyryl fentanyl.”

A.4. It affirmed anyway because “the toxicology analysis was consistent with the

government’s theory.” A.4. But the problem with substituting a “consistent with”

framework is that test results that cannot distinguish between Substance A

(charged and illegal) and Substance B (uncharged and legal), by definition, produce

results that are equally consistent with both. Evidence in that posture cannot

establish the charged substance beyond a reasonable doubt, see In re Winship, 397

U.S. 358, 364 (1970); Jackson v. Virginia, 443 U.S. 307, 319 (1979), and it does not

assure that the petit jury convicted on the charge the grand jury returned rather

than on an uncharged—and, here, lawful—alternative. In that sense, the Second

Circuit ignored its own precedent that evidence giving “equal or nearly equal

circumstantial support to a theory of guilt and a theory of innocence” requires

acquittal. United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008). So, at bottom,

a forensic test that by design cannot differentiate the charged substance from a

lawful one is not weak support for the charged isomer; it is no basis at all for

choosing between them.

In the separate context of sentencing, the courts of appeals have insisted on

proof of the specific isomer when the answer carries legal consequences. This

specificity should apply just as much at trial. For instance, the Eleventh Circuit has

held that the government bears the burden of production and persuasion as to

which type of methamphetamine (the D- or L-isomer) was involved in an offense,

and it vacated a sentence imposed on the unproven assumption that the harsher

isomer was involved. See United States v. Patrick, 983 F.2d 206, 208-211 (11th Cir.

1993). The Third Circuit agreed, explaining that “considering the magnitude of the

difference in sentencing that could result from the application of the wrong organic

isomer,” a failure to determine the isomer “would result in a grave miscarriage of

justice.” United States v. Bogusz, 43 F.3d 82, 90 (3d Cir. 1994). The Eleventh Circuit

later went even further, holding it plain error to sentence on the basis of an isomer

the government never proved. See United States v. Ramsdale, 61 F.3d 825 (11th Cir.

1995). If the government must affirmatively prove the correct isomer at sentencing

under a preponderance standard, that proof cannot be dispensed with at a trial

where the isomer’s identity determines guilt itself, and the standard is proof beyond

a reasonable doubt.

Nor is the notice rationale sufficient. The Second Circuit (like the District

Court below) relied upon the “core of criminality” doctrine, under which flexible

proof is permitted “provided that the defendant was given notice of the core of

criminality to be proven at trial,” and observed that Petitioner “does not claim that

he lacked such notice.” A.4 (quoting McGinn, 787 F.3d at 128). But notice was never

the issue, and the “core of criminality” concept presupposes that every basis for

conviction within the “core” is, in fact, criminal. Here, the proof encompassed

conduct (distribution of 3-FIBF) that Congress and the DEA had not yet

criminalized. A defendant cannot be “on notice” that he must defend against

conduct that was not a federal crime, and a grand jury cannot be presumed to have

charged one. Stirone makes clear that the controlling question is not notice or

prejudice but whether the defendant was convicted of an offense not charged in the

indictment. 361 U.S. at 217-219. And by converting the constructive-amendment

inquiry into an ordinary sufficiency review by asking whether the jury could have

convicted on the charged basis deprives the Grand Jury Clause of independent

force.

The circumstantial evidence the Second Circuit cited does not bridge the gap.

The government proved, through gas chromatography, that drugs Petitioner sold to

a confidential informant on other occasions contained 4-FIBF. But those drugs were

not recovered in connection with A.C.’s death, no drugs were found on or near A.C.,

nothing connected the controlled-buy samples to anything A.C. ingested, and A.C.

spent part of the relevant evening away from Petitioner. Testimony about the rarity

of the drug—that a single county laboratory had confirmed 4-FIBF in only four to

six seized-drug analyses, four linked to Petitioner—was generated by seized-drug

instrumentation that can distinguish isomers; it says nothing about the relative

prevalence of 3-FIBF in the unregulated street supply, which the DEA itself

recognized was systematically under-identified in biological samples. 82 Fed. Reg.

at 20545. Likewise, the case agent’s testimony that he had never encountered 3FIBF proves little where post-mortem instrumentation could not have identified it

as such in fatal overdoses. Such inferences may have force in an ordinary sufficiency

dispute; they cannot supply the grand jury’s charge or convert proof of a substance

class into proof of the indicted substance.

The Question Is Important and Will Recur.

The forensic limitation at issue is not constrained to one laboratory or one

prosecution. The DEA’s own 2017 scheduling notice for 4-FIBF acknowledged that

standard immunoassays may be unable to differentiate fentanyl compounds, 82

Fed. Reg. at 20545, and the government’s own trial expert testified that “[i]t is next

to impossible to isolate these different isomers from each other.” The regulatory

record speaks to the breadth of the problem. Within weeks of the conduct charged

here, the DEA abandoned compound-by-compound scheduling for this family

altogether: it announced its intent to schedule fentanyl-related substances as a

class on December 29, 2017, 82 Fed. Reg. 61700, issued a temporary class-wide

order on February 6, 2018, 83 Fed. Reg. 5042, and Congress made the class

placement permanent in the HALT Fentanyl Act, Pub. L. No. 119-26 (2025). The

resort to class-wide scheduling was a recognition that controlling individual

compounds had left lawful, forensically indistinguishable chemical relatives in

circulation. The charged offense period in this case falls squarely within that

acknowledged gap.

The question remains open in two respects. First, prosecutions arising from

conduct predating the February 2018 class-wide order may continue to arise, given

that the federal conspiracy statute is a continuing offense. Second, this problem

arises whenever an indictment names a specific compound that the available

forensic proof cannot distinguish from a different compound, whether the

alternative is unscheduled, as here, or scheduled under a provision carrying

different penalties. Novel psychoactive substances outside the fentanyl family

continue to be scheduled compound by compound, and forensic methods continue to

lag behind synthetic chemistry. And this is a problem that reaches beyond just

fentanyl compounds. What proof the Constitution requires before a defendant may

be convicted of distributing a specifically charged substance is a question

warranting this Court’s review.

II.

The Decision Below Conflicts With Burrage’s But-For Causation

Requirement.

Burrage Requires Proof Beyond a Reasonable Doubt That the

Charged Substance Caused the Death.

In Burrage, this Court held that the “death results” enhancement of §

841(b)(1)(C) “is an element that must be submitted to the jury and found beyond a

reasonable doubt,” 571 U.S. at 210, and that, “at least where use of the drug

distributed by the defendant is not an independently sufficient cause of the victim’s

death,” the defendant cannot be liable “unless such use is a but-for cause of the

death,” id. at 218-219. This Court rejected a “contributing cause” standard because

of the enhancement’s severe consequences. Id. at 214-219.

Burrage focused whether the defendant’s drug caused the death. This case

presents the question that Burrage presupposed: whether the government proved

that the defendant’s charged drug was even present. The statutory text ties the

enhancement to death resulting “from the use of such substance”—the controlled

substance distributed in violation of § 841(a). Where the forensic proof cannot

identify the substance in the victim’s body as the charged, scheduled substance—as

opposed to an uncharged compound that was not controlled at all—the chain of

statutory causation fails at its first link.

The Government’s Own Expert Could Not Identify the

Substance, Much Less Prove That It Caused A.C.’s Death.

The government’s causation opinion was directed at a family of compounds,

not the charged substance. Dr. Hail opined that A.C. would not have died “but for

the fluoroisobutyryl fentanyl laced heroin” in her system. That statement

encompassed, at a minimum, both the scheduled 4-FIBF and the then-unscheduled

3-FIBF. She acknowledged on cross-examination that she had reviewed no report

demonstrating “that it was the 4-fluoro analogue as opposed to the 3-fluoro

analogue found in the decedent,” and that isolating the isomers is “next to

impossible.” The government’s expert therefore established, at most, that some

fluoroisobutyryl compound was a but-for cause of death—not that the charged

controlled substance was. Under Burrage, that is not enough.

The remaining medical evidence pointed the other way. The medical

examiner who actually performed the autopsy attributed death to a “mixed drug

intoxication” involving an “unknown fentanyl analog,” heroin, cocaine, and ethanol

acting in combination, and testified that singling out the fentanyl analogue as the

sole but-for cause “would be arbitrary”—particularly absent any quantitative

measurement of the analogue in A.C.’s blood. On this record, the government never

established that any fluoroisobutyryl compound—let alone 4-FIBF specifically—was

an “independently sufficient” cause of death rather than one component of a multidrug fatality. Burrage, 571 U.S. at 218-219.

The District Court’s oral reasoning, that “[e]ither [isomer] would have caused

the death of the victim, ” is the clearest example of Burrage error where one isomer

was neither scheduled nor charged in the indictment. Under this theory, apparently

adopted by the Second Circuit, the twenty-year mandatory minimum would then be

triggered not by proof of the charged offense, but by proof that the defendant dealt

in some related compound. That dilutes the causation element this Court rejected in

Burrage. Review is accordingly warranted to ensure that Burrage retains its force in

prosecutions involving novel synthetic opioids.

III.

This Case Is an Ideal Vehicle for Review.

This case presents an ideal vehicle for review. First, the questions presented

are outcome-determinative. Count 4 carried the twenty-year mandatory minimum

and the Guidelines range of life that drove Petitioner’s 360-month sentence. A

ruling in Petitioner’s favor would require vacatur of Count 4.

Second, the questions are purely legal and the predicate facts are undisputed.

The scheduling chronology appears in the Federal Register. The incapacity of postmortem toxicology to distinguish the isomers was established by the government’s

own witnesses. And the Second Circuit itself acknowledged that the toxicology “did

not prove” the presence of the charged isomer. A.4. There is no factual dispute for

this Court to untangle; the Court need only reach the legal question of whether

what remains satisfies the Fifth Amendment and Burrage.

Third, the questions were passed upon below. Petitioner challenged the

isomer discrepancy at the close of the government’s case, in post-trial motions under

Rules 29 and 33, and on appeal. Although the government argued below that

Petitioner’s reliance on the unscheduled status of 3-FIBF had not been specifically

presented to the District Court, the Second Circuit did not rest on forfeiture; it

reviewed the constructive-amendment claim de novo and decided it on the merits.

In any event, the legal status of 3-FIBF in November 2017 is an indisputable matter

of public record.

Finally, the disposition below illustrates why this Court’s review is needed.

The Court of Appeals resolved a structural Fifth Amendment claim, in a

mandatory-minimum death-results case, by non-precedential summary order

applying a “consistent with” standard. Absent this Court’s intervention, the

question is likely to continue to be resolved summarily, without published guidance.

CONCLUSION AND PRAYER FOR RELIEF

The Second Circuit’s decision permits a federal conviction carrying a twentyyear mandatory minimum to stand even though (a) the grand jury charged a

specific Schedule I controlled substance that post-mortem toxicology could not

confirm was present in the victim’s blood; (b) the toxicology was equally consistent

with an isomer that was not a controlled substance during the charged period; and

the presence of the charged isomer. These defects go to the core protections of the

Fifth Amendment’s Grand Jury Clause and to the rule this Court established in

Burrage.

Consequently, this Court should grant certiorari to review the Second

Circuit’s summary order, summarily review the decision below on Petitioner’s

constructive amendment claim, or grant such other relief as justice requires.

Dated: August 18, 2026

Kenmore, New York

/s/ Parker R. MacKay, Esq._____________

THE LAW OFFICE OF PARKER R. MACKAY

Counsel for Petitioner Jawayne Watkins

By: PARKER R. MacKAY, ESQ.

3110 Delaware Avenue

Kenmore, NY 14217

(716) 803-8166

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT, FILED

MAY 21, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW

YORK, FILED JUNE 13, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14a

APPENDIX C — DECISION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE WESTERN DISTRICT

OF NEW YORK, FILED AUGUST 24, 2021 . . . . . . . . . . . . . . . . . . . . . 21a

Case 22-1296, Document 140-1, 05/21/2026, 3650399, Page1 of 13

22-1296-cr

United States of America v. Watkins

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,

on the 21st day of May, two thousand twenty-six.

PRESENT:

JOHN M. WALKER, JR.,

MICHAEL H. PARK,

EUNICE C. LEE,

Circuit Judges.

__________________________________________

UNITED STATES OF AMERICA,

Appellee,

22-1296-cr

JAWAYNE WATKINS, AKA WEEZY,

Defendant-Appellant.

__________________________________________

FOR DEFENDANT-APPELLANT:

PARKER R. MACKAY, The Law Office of

Parker R. MacKay, Kenmore, NY

FOR APPELLEE:

MONICA J. RICHARDS, Assistant United States

Attorney, for Michael DiGiacomo, United

States Attorney for the Western District of

New York, Buffalo, NY

Case 22-1296, Document 140-1, 05/21/2026, 3650399, Page2 of 13

Appeal from a judgment of the United States District Court for the Western District of New

York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jawayne Watkins was indicted on one count of conspiracy to possess

with intent to distribute, and conspiracy to distribute, heroin and 4-fluoroisobutyryl fentanyl; two

counts of possession with intent to distribute and distribution of heroin and 4-fluoroisobutyryl

fentanyl; and one count of possession with intent to distribute and distribution of heroin and 4fluoroisobutyryl fentanyl causing serious bodily injury and death.

on all four counts.

After trial, he was convicted

Watkins moved for a judgment of acquittal under Federal Rule of Criminal

Procedure 29 and for a new trial under Rule 33.

sentenced him to 360 months in prison.

The district court denied his motions and

On appeal, Watkins raises six challenges to his trial and

sentence. We assume the parties’ familiarity with the facts, procedural history, and issues on

appeal.

Constructive Amendment

Watkins contends the indictment was constructively amended as to Count 4, which charged

that in November 2017 Watkins possessed with intent to distribute and distributed two Schedule I

controlled substances, heroin and 4-fluoroisobutyryl fentanyl, and that the death of A.C. resulted

from her use of those substances. He contends that the post-mortem toxicology test could not

identify the specific fentanyl analogue present in A.C.’s body and instead indicated the presence

of either 4-fluoroisobutyryl fentanyl (the Schedule I controlled substance listed in the indictment)

or 3-fluoroisobutyryl fentanyl (a fentanyl analogue that was not named in the indictment and was

not a Schedule I controlled substance in November 2017 when the offense occurred).

This

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ambiguity in the toxicology analysis, Watkins argues, resulted in a constructive amendment of the

indictment.

“We review de novo the question of whether an indictment was constructively amended.”

United States v. Daugerdas, 837 F.3d 212, 225 (2d Cir. 2016).

“An indictment has been

constructively amended in violation of the” Fifth Amendment’s “Grand Jury Clause when either

the trial evidence or jury charge broadens the possible bases for conviction from that which

appeared in the indictment, such that it is uncertain whether the defendant was convicted of

conduct that was the subject of the grand jury’s indictment.” United States v. Prawl, 149 F.4th

176, 186-87 (2d Cir. 2025) (cleaned up).

The indictment was not constructively amended. Consistent with the charge in Count 4,

the government argued throughout the trial that A.C.’s death resulted from her use of the heroin

and 4-fluoroisobutyryl fentanyl that Watkins possessed with intent to distribute in November 2017.

The government presented evidence that: (1) Watkins possessed with intent to distribute and

distributed 4-fluoroisobutyryl fentanyl and heroin in July 2017, August 2017, and September 2017

and on November 9, 2017, one day before A.C.’s death; (2) on November 9, 2017, after selling 5

grams of heroin laced with 4-fluoroisobutyryl fentanyl to confidential informant James Ulrich,

Watkins said he would get the rest of Ulrich’s order from the Riverside area of Buffalo; (3)

Watkins and A.C. then drove to the Riverside area, A.C. visited her family at her mother’s

residence, Watkins went to a different Riverside address, Watkins and A.C. later returned to

Watkins’ residence, and A.C. remained with Watkins until her death on November 10; (4) one of

A.C.’s relatives testified that A.C. appeared sober and did not drink alcohol or ingest drugs while

with her family on November 9 and that A.C. sounded sober and alert during a 3:00 a.m. phone

call on November 10; (5) Watkins later spoke with Erin Cameron, who recalled Watkins saying

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“she should have never stolen it,” App’x at 623; (6) A.C.’s toxicology report indicated the presence

of “meta/para” fluoroisobutyryl fentanyl (i.e., 3- or 4-fluoroisobutyryl fentanyl), id. at 1061; and

(7) toxicologist Dr. Stacey Hail testified that A.C. would not have died “but for the fluoroisobutyryl

fentanyl laced heroin” in her system, id. at 794.

Although the toxicology analysis did not prove that the fentanyl analogue present in A.C.’s

body was 4-fluoroisobutyryl fentanyl, “the proof at trial need not, indeed cannot, be a precise

replica of the charges contained in an indictment and this court has consistently permitted

significant flexibility in proof, provided that the defendant was given notice of the core of

criminality to be proven at trial.” United States v. McGinn, 787 F.3d 116, 128 (2d Cir. 2015)

(cleaned up).

Here, the indictment and the government’s case at trial put Watkins on notice that

the government sought to prove that he possessed with intent to distribute heroin and 4fluoroisobutyryl fentanyl and that A.C.’s death resulted from the use of those substances.

Watkins does not claim that he lacked such notice.

And the toxicology analysis was consistent

with the government’s theory. See id. at 129. Moreover, the district court properly found that

the non-toxicology evidence presented by the government constituted “substantial circumstantial

evidence that the heroin A.C. used was laced with the 4-flu[o]roisobutyryl fentanyl isomer charged

in the Indictment.”

App’x at 1421. We thus conclude that the indictment was not constructively

amended as to Count 4.

II.

Sufficiency of the Evidence

Watkins challenges the sufficiency of the evidence supporting his conspiracy conviction

on Count 1.

“We review de novo a district court’s order denying a Rule 29 motion addressing

the sufficiency of the evidence.”

United States v. Klein, 913 F.3d 73, 78 (2d Cir. 2019).

challenging the jury’s verdict, a Rule 29 movant bears a heavy burden.

“In

A reviewing court must

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credit every inference that could have been drawn in the government’s favor and affirm the

conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded

guilt beyond a reasonable doubt.” Id. (cleaned up).

A “court may enter a judgment of acquittal

only if the evidence that the defendant committed the crime alleged is nonexistent or so meager

that no reasonable jury could find guilt beyond a reasonable doubt.”

United States v. Temple,

447 F.3d 130, 136 (2d Cir. 2006) (quotation marks omitted). “In cases of conspiracy, deference

to the jury’s findings is especially important because a conspiracy by its very nature is a secretive

operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the

precision of a surgeon’s scalpel.” United States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004)

(cleaned up).

“To affirm a conviction for conspiracy to distribute under [21 U.S.C. § 846], the

record must support a rational jury’s finding (1) the existence of the conspiracy charged; (2) that

the defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined the

conspiracy.”

United States v. Barret, 848 F.3d 524, 534 (2d Cir. 2017) (quotation marks

omitted).

The evidence was sufficient to support Watkins’ conspiracy conviction. The government

presented evidence that Anika Williams purchased heroin laced with 4-fluoroisobutyryl fentanyl

from Watkins for resale to users, Watkins showed her how to package the drugs for resale, Watkins

lowered his drug prices as Williams bought larger quantities from him, and Watkins told Ulrich

that he intended to have Williams take over his smaller-quantity drug sales so that Watkins could

focus on bulk sales.

Crediting “every inference that could have been drawn in the government’s

favor,” Klein, 913 F.3d at 78 (quotation marks omitted), a rational jury could have found beyond

a reasonable doubt that Watkins had knowledge of and intentionally joined a conspiracy whereby

he sold heroin and 4-fluoroisobutyryl fentanyl to Williams, who resold those substances to others.

Case 22-1296, Document 140-1, 05/21/2026, 3650399, Page6 of 13

Watkins contends that the evidence “speaks to [his] mere awareness” that Williams would

resell his drugs, “rather than active facilitation of distribution” to third parties. Appellant’s Br.

at 33.

But the government introduced evidence that Watkins facilitated the drug resales by

showing Williams how to package the drugs for resale and by discounting prices for largerquantity drug purchases.

Watkins also highlights Williams’ testimony that she was an

“independent contractor.”

App’x at 489.

In light of the evidence supporting the conspiracy

count, the jury was entitled to reject Williams’ characterization of her role.

See Morgan, 385

F.3d at 204 (“In cases of conspiracy, deference to a jury’s findings is especially important.”

(quotation marks omitted)).

Finally, Watkins asserts that his relationship with Williams “lacked

a profit-sharing component or the structure of sales-on-credit that spoke to conspiratorial intent to

further a single joint venture.”

Reply Br. at 6. But “[n]o single factor,” including “sales on

credit,” “is dispositive” to the “highly fact-specific inquiry into whether the circumstances

surrounding a buyer-seller relationship establish an agreement to participate in a distribution

conspiracy.” United States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008) (quotation marks omitted).

As explained above, the evidence here is sufficient for a jury to find beyond a reasonable doubt

that Watkins agreed to participate, and did participate, in a conspiracy to distribute heroin and 4fluoroisobutyryl fentanyl.

III.

Motion To Suppress

Watkins claims the district court abused its discretion in denying without a hearing his

motion to suppress statements made during recorded conversations with Ulrich, the confidential

informant. “The denial of an evidentiary hearing” on a motion to suppress “is reviewed for abuse

of discretion.”

United States v. Lewis, 62 F.4th 733, 741 (2d Cir. 2023).

An “evidentiary

hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite,

Case 22-1296, Document 140-1, 05/21/2026, 3650399, Page7 of 13

specific, detailed, and nonconjectural to enable the court to conclude that contested issues of

fact . . . are in question.” In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157,

165 (2d Cir. 2008) (quotation marks omitted).

A “defendant’s fourth amendment rights are not violated when the defendant’s

conversations with a government informant are electronically monitored by a government agent

with the consent of the wired informant.”

Cir. 1977).

United States v. Fuentes, 563 F.2d 527, 533 n.4 (2d

To demonstrate an “informer’s consent to the monitoring or recording of a telephone

conversation,” “it will normally suffice for the Government to show that the informer went ahead

with a call after knowing what the law enforcement officers were about.”

Bonanno, 487 F.2d 654, 658-59 (2d Cir. 1973).

United States v.

“[T]his showing, which is considerably less

stringent than that required to show consent for a physical search, may consist of circumstantial

evidence, rather than direct evidence from the informant or from agents to whom the informant

gave his express consent.”

Fuentes, 563 F.2d at 533.

The district court did not abuse its discretion in denying Watkins’ motion to suppress

without a hearing.

The government submitted an affidavit from the lead agent in the

investigation, who averred that he “utilized a confidential informant (‘CI’)” and “explained to the

CI the purpose of the phone calls was to arrange controlled purchases of narcotics from” Watkins.

App’x at 87.

The agent also attested that the informant: “agreed to make phone calls with”

Watkins “and to have those phone calls recorded”; “made numerous consensually monitored

telephonic communications with” Watkins; “agreed to make controlled purchases from” Watkins

“and to have the controlled purchases recorded”; “made two controlled purchases from” Watkins,

“both of which were recorded”; and “made recorded phone calls with” Watkins “after the first

controlled purchase and before the second controlled purchase.”

Id. at 87-88.

The affidavit is

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“direct evidence . . . from [the] agent[] to whom the informant gave his express consent,” Fuentes,

563 F.2d at 533, and it establishes that the informant allowed himself to be recorded and “went

ahead with . . . [recorded] call[s]” and recorded drug transactions “after knowing what the law

enforcement officers were about,” Bonanno, 487 F.2d at 658-59.

Watkins’ motion to suppress

does not establish that “contested issues of fact” as to the informant’s consent “are in question.”

Terrorist Bombings, 552 F.3d at 165 (quotation marks omitted).

The district court thus did not

abuse its discretion in denying Watkins’ suppression motion without a hearing.

IV.

Masking Requirement for Prospective Jurors and Jurors

Watkins seeks a new trial because the district court ordered prospective jurors and jurors

to wear partial face coverings in light of the COVID-19 pandemic.

The test for granting a Rule

33 motion for a new trial “is whether it would be a manifest injustice to let the guilty verdict stand.”

United States v. Guang, 511 F.3d 110, 119 (2d Cir. 2007) (quotation marks omitted). “For a trial

judge to grant a Rule 33 motion, he must harbor a real concern that an innocent person may have

been convicted.”

Id. (quotation marks omitted). The “district court enjoys ample discretion in

determining how best to conduct the voir dire,” United States v. Kelly, 128 F.4th 387, 421 (2d Cir.

2025) (quotation marks omitted), and it likewise “has considerable discretion in the conduct of a

trial,” Boyle v. Revici, 961 F.2d 1060, 1064 (2d Cir. 1992).

The district court did not abuse its discretion in requiring prospective jurors and jurors to

wear masks “as a result of the precautions observed during the Covid-19 pandemic.” App’x at

19.

Watkins cites no authority holding that a COVID-related mask requirement for prospective

jurors and jurors violates the defendant’s constitutional rights, and there is substantial authority to

the contrary.

See, e.g., United States v. Ayala-Vieyra, 2022 WL 190756, at *5 (6th Cir. 2022)

(“Courts have consistently held” that “seeing the bottom of the jurors’ faces is [not]

Case 22-1296, Document 140-1, 05/21/2026, 3650399, Page9 of 13

constitutionally required.” (collecting cases)); United States v. Trimarco, 2020 WL 5211051, at *5

(E.D.N.Y. Sept. 1, 2020) (“Being able to see jurors’ noses and mouths is not essential for assessing

credibility because demeanor consists of more than those two body parts since it includes the

language of the entire body.” (cleaned up)).

That prospective jurors and jurors wore masks in

this case does not give rise to “a real concern that an innocent person may have been convicted.”

Guang, 511 F.3d at 119 (quotation marks omitted). 1

Sentence

Watkins argues that his 360-month sentence is substantively unreasonable.

“We review

a district court’s sentencing determination for substantive reasonableness under the abuse of

discretion standard.” United States v. Pollok, 139 F.4th 126, 144 (2d Cir. 2025). “A sentence

is . . . substantively unreasonable only if affirming it would damage the administration of justice

because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable

as a matter of law.”

Id. (quotation marks omitted).

“[A]lthough a within-Guidelines sentence

is not presumptively reasonable, we have observed that in the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences that would be

reasonable in the particular circumstances.” Id. at 145 (quotation marks omitted).

Watkins’ 360-month sentence was not substantively unreasonable.

Watkins faced a 20-

year mandatory minimum sentence and a Guidelines range of life imprisonment. The district

court appropriately considered the factors in 18 U.S.C. § 3553(a) in imposing a below-Guidelines

sentence. The court explained that, on the one hand, “the conduct of the instant offense represents

Watkins asserts that the district court’s ruling requiring prospective jurors to wear masks during

voir dire “cast a chilling effect on Appellant’s counsel’s ability to speak up.” Appellant’s Br. at 36. But

this claim is belied by the fact that Watkins’ trial lawyer later moved for a mistrial after “a juror or jurors”

reportedly “had some complaints about the conduct of counsel relative to COVID safety practices.”

App’x at 633. The district court denied the motion, and Watkins does not challenge that ruling on appeal.

Case 22-1296, Document 140-1, 05/21/2026, 3650399, Page10 of 13

a very serious crime involving very dangerous drugs that are inflicting significant harm to families

within our community”; “a vulnerable individual has lost her life as a result of the substances

provided by” Watkins; “the instant offense represents [Watkins’] third felony conviction; the prior

two felonies being possession and attempted possession of controlled substances”; “[d]espite

having been granted leniency on several occasions, [Watkins] failed to commit himself to leading

a law-abiding life following those convictions”; and Watkins “committed the instant offense while

under New York State penal supervision.”

App’x at 1471-72.

At the same time, the court

considered factors supporting a “downward variance” from the Guidelines range of life

imprisonment, including Watkins’ “difficult childhood”; the absence of “aggravating

circumstances” warranting a life sentence, “such as multiple fatal overdoses, large-scale drug

distributions, gang warfare, organized crime,” or “use of firearms”; the indications that Watkins’

“criminal activity did not support a luxurious lifestyle”; and the fact that the sole victim was

Watkins’ “significant other, and not a drug customer.” Id. at 1472-74.

Watkins stresses the factors that he claims warrant a lower sentence.

But in “assessing

the sentence imposed by a district court, we do not reweigh the relevant factors; rather, we evaluate

only whether a factor can bear the weight assigned it by the District Court under the totality of

circumstances in the case.”

up).

United States v. Albarran, 943 F.3d 106, 116 (2d Cir. 2019) (cleaned

Here, the “district court’s imposition of a below-Guidelines” 360-month sentence, “after

having balanced [Watkins’] aggravating and mitigating factors, is substantively reasonable and

not an abuse of the court’s considerable discretion.”

(2d Cir. 2025).

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United States v. Darrah, 132 F.4th 643, 653

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VI.

Ineffective Assistance of Counsel

Finally, we review de novo Watkins’ claim that he received ineffective assistance from his

trial counsel. See United States v. Melhuish, 6 F.4th 380, 392 (2d Cir. 2021).

Although we have

a “baseline aversion to resolving ineffectiveness claims on direct review,” United States v. Morris,

350 F.3d 32, 39 (2d Cir. 2003) (quotation marks omitted), we reject Watkins’ ineffectiveness claim

here because it “is beyond any doubt” that the claim fails, United States v. Khedr, 343 F.3d 96,

100 (2d Cir. 2003) (quotation marks omitted).

To prove the Sixth Amendment “right to effective assistance of counsel” “has been

violated, a defendant must show (1) the attorney’s representation ‘fell below an objective standard

of reasonableness’ and (2) there was ‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

United States v.

Rosemond, 958 F.3d 111, 121 (2d Cir. 2020) (quoting Strickland v. Washington, 466 U.S. 668,

688, 694 (1984)).

“Courts reviewing ineffective assistance of counsel claims are highly

deferential, and must strongly presume that counsel made all significant decisions in the exercise

of reasonable professional judgment. This presumption is overcome only if counsel failed to act

reasonably considering all of the circumstances.” Id. (cleaned up).

Watkins claims his trial lawyer was ineffective because he failed to call a medical

toxicologist as a witness to counter the government’s expert witnesses. Watkins contends that,

given the limitations of the toxicology analysis, his trial “counsel should have been able to

understand that the government’s toxicologist would not be able to definitively report that 4-fluoro

was found in A.C.’s system” and “should have endeavored to find a toxicologist to contextualize

and contest the expected testimony” from the government’s witnesses.

11a

Appellant’s Br. at 38.

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But Strickland does not “requir[e] for every prosecution expert an equal and opposite

expert from the defense,” and in “many instances cross-examination will be sufficient to expose

defects in an expert’s presentation.” Harrington v. Richter, 562 U.S. 86, 111 (2011).

Here,

Watkins’ trial lawyer elicited cross-examination testimony on the toxicology analysis that was

favorable for the defense. 2

In Watkins’ case-in-chief, moreover, his attorney called the medical

examiner, who testified that (1) she performed the autopsy on A.C.; (2) she was not being paid for

her testimony; (3) in her opinion, “the cause of death . . . was a mixed drug intoxication” that

“included an unknown fentanyl analog,” App’x at 849; and (4) in her view, singling out the

fentanyl analog as the sole but-for cause of A.C.’s death “would be arbitrary,” id. In closing

argument, Watkins’ attorney emphasized that the toxicologist “was unable to determine whether

it was a 3-fluoro or 4-fluoro” and that the medical examiner “concluded the death was a

combination of controlled substances; heroin and an unknown analog . . . not 4-fluoro, unknown.”

Id. at 913-14. Watkins’ trial lawyer thus elicited and highlighted to the jury favorable testimony

on the precise issue underlying Watkins’ ineffectiveness claim.

Watkins has failed to

demonstrate that, “in light of all the circumstances,” his trial counsel’s decision not to call a

toxicology expert was “outside the wide range of professionally competent assistance.”

Melhuish, 6 F.4th at 393 (quotation marks omitted).

Under questioning from Watkins’ lawyer, for instance, the government’s toxicology expert

testified that (1) she earned more than $6,000 to prepare for her testimony and would also be paid for her

trial time; (2) she had never performed an autopsy; (3) she relied on reports from the medical examiner and

toxicologist in forming her opinion as to the but-for cause of A.C.’s death; (4) she did not review any report

showing “that it was the 4-fluoro analogue as opposed to the 3-fluoro analogue found in the decedent,”

App’x at 805; and (5) “[i]t is next to impossible to isolate these different isomers from each other,” id. at

806.

12a

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We have considered Watkins’ remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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Case 1:18-cr-00032-RJA-JJM

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

DECISION AND ORDER

18-CR-32-A

JAWAYNE WATKINS,

Defendant.

On October 19, 2020, defendant Jawayne Watkins was convicted of four

narcotics-related offenses after a seven-day jury trial. Defendant Watkins moves

pursuant to Federal Rule of Criminal Procedure 29 for a judgment of acquittal

notwithstanding the jury’s verdicts. He primarily challenges the legal sufficiency of

evidence that his possession with intent to distribute or distribution of a mixture of

heroin and a fentanyl analogue caused the serious injury or death of an overdose

victim. For the reasons stated below, the Court finds that the jury’s guilty verdicts

were supported by legally sufficient evidence. The defendant’s motion pursuant to

Rule 29 for a judgment of acquittal is therefore denied.

Defendant Watkins also moves for a new trial pursuant to Fed. R. Crim. P. 33.

In support of his new-trial motion, the defendant supplements his insufficiency of the

evidence arguments with argument that he was denied a fair trial due to the Court’s

COVID-19-related health and safety protocols. After due consideration, for the

reasons that are also stated below, the Court finds that the guilty verdicts were not

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manifestly unjust. The defendant’s Rule 33 motion for a new trial is therefore also

denied.

BACKGROUND

In October 2020, defendant Watkins was convicted of one Count of

conspiracy to possess with intent to distribute, or to distribute, 10 grams or more of

heroin and 4-fluoroisobutyryl fentanyl, a fentanyl analogue, in violation of 21 U.S.C.

§ 846 (Count 1); two Counts of possession with intent to distribute or distribution of

heroin and 4-fluoroisobutyryl fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B) and (b)(1)(C), respectively (Counts 2 and 3); and one Count of

possession with intent to distribute or distribution of heroin and 4-fluoroisobutyryl

fentanyl that resulted in a serious bodily injury or death, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(C) (Count 4). The most serious offense, Count 4, stemmed

from the defendant’s role in an overdose death, and he went to trial facing a

mandatory sentence of life imprisonment if convicted of that offense.

The defendant’s post-trial Rule 29 and Rule 33 motions were timely filed, but

after the trial and convictions, the defendant’s relationship with his counsel broke

down and new counsel was assigned to represent him. On August 19, 2021, based

upon a change in U.S. Department of Justice policy, and unrelated to the

defendant’s change of counsel, the United States withdrew a previously filed

Information pursuant to 21 U.S.C. § 851 that had given the defendant formal notice

that the United States would rely upon a prior drug conviction to trigger a mandatory

life sentence for a conviction on the charge related to the overdose death. Doc. No.

198. Because the § 851 Information has been withdrawn, the defendant now faces

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a statutory mandatory-minimum term of imprisonment of 20 years to life for that

conviction. 21 U.S.C. § 841(b)(1)(C).

DISCUSSION

Rule 29 Motion for a Judgment of Acquittal. In general, Rule 29 imposes

a “heavy burden” on a defendant challenging a conviction by a jury. United States v.

Cuti, 720 F.3d 453, 461 (2d Cir. 2013). A court may enter a judgment of acquittal:

. . . only if the evidence that the defendant committed the

crime alleged is nonexistent or so meager that no

reasonable jury could find guilt beyond a reasonable doubt.

In applying these principles, [the Court] review[s] all of the

evidence presented at trial in the light most favorable to the

government, crediting every inference that the jury might

have drawn in favor of the government.

United States v. Facen, 812 F.3d 280, 286 (2d Cir. 2016) (quotations and citations

omitted). Rule 29 requires the Court to give substantial deference to a jury finding

as to “the weight of the evidence and the reasonable inferences to be drawn” from

the evidence. Id. (quotation omitted). Not only “must [a court] credit every

inference that could have been drawn in the government’s favor,” but, in assessing

the sufficiency of the evidence, a court “must view the evidence as a whole.” United

States v. Applins, 637 F.3d 59, 76 (2d Cir. 2011). And “where either of the two

results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must

let the jury decide the matter.” Facen, 812 F.3d at 286 (quotation and brackets

omitted).

Viewed “in the light most favorable to the government, with all reasonable

inferences drawn in its favor,” United States v. Rowland, 826 F.3d 100, 105 n.1 (2d

Cir. 2016) (quotation marks omitted), evidenced introduced during defendant

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Watkins’ trial showed that that he and his co-conspirators were trafficking in heroin

laced with 4-fluroisobutyryl fentanyl in this District between approximately June 2017

and November 9, 2017.

On July 13, 2017, the U.S. Department of Homeland Security--Investigations

conducted a controlled purchase of heroin from the defendant using an undercover

law enforcement agent and a cooperating witness. The cooperating witness

arranged to purchase approximately 15 grams of heroin from the defendant. The

undercover agent made the purchase, in the presence of the cooperating witness,

and obtained both video and audio recordings of the purchase. Laboratory analysis

confirmed that the substance weighed approximately 15 grams, and that it contained

heroin and 4-fluoroisobutyryl fentanyl, which is a fentanyl analogue.

This controlled purchase of heroin and 4-fluoroisobutyryl fentanyl was the

subject of Count 2 of the Indictment against defendant Watkins. Doc. No. 164, p. 2

(redacted version of Second Superseding Indictment, Doc. No. 42.) Suffice it to say

that the recordings, the testimony of the undercover agent and the cooperating

witness, and the evidence of the chemical analysis of the substance purchased from

the defendant, constituted more than legally sufficient evidence to prove beyond a

reasonable doubt defendant Watkins’ possession with intent to distribute and

distribution of 10 grams or more of heroin and 4-fluoroisobutyryl fentanyl in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The defendant’s conclusory challenge

to the sufficiency of the evidence supporting this conviction and jury’s drug-quantity

finding merits no further discussion.

On November 9, 2017, Homeland Security--Investigations made a second

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controlled purchase from the defendant. On that day, the same cooperating witness

was directed by the defendant to 384 Broadway in Buffalo, which was a halfway

house where the defendant was required to stay while on New York State parole.

The witness had been provided government funds to buy approximately 18 grams of

heroin.

The defendant was subject to GPS location monitoring as a condition of

parole, and GPS tracking data confirmed he was at the halfway house at the time of

the purchase. The cooperating witness wore a concealed audio recording device

and obtained audio recordings while at the defendant’s residence. The cooperating

witness also saw the defendant's girlfriend, A.C. 1, in the defendant's room, and she

was recorded on the audio recordings made by the witness.

The defendant told the cooperating witness he had only 5 of the 18 grams of

heroin that he had offered to sell to the witness. He indicated he planned to go to

the Riverside neighborhood to get more and that he would have the remainder of the

18 grams that night. The defendant sold the 5 grams of heroin that he had at the

time to the cooperating witness. Later chemical analysis confirmed that this heroin

was also laced with 4-fluroisobutyryl fentanyl.

The November 9, 2017 controlled purchase of heroin and 4-fluoroisobutyryl

fentanyl was the subject of Count 3 of the redacted Indictment. The Court

specifically finds that the audio recordings, testimony of the cooperating witness,

and the evidence of the chemical analysis of the substance purchased from the

The initials “A.C.” refer to the deceased overdose victim.

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defendant, were legally sufficient to prove beyond a reasonable doubt the

defendant’s possession with intent to distribute and distribution of heroin and 4fluoroisobutyryl fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

Once again, the defendant’s challenge to the legal sufficiency of the evidence

supporting the jury’s verdict on this Count is conclusory and without merit.

Later on November 9, 2017, defendant Watkins did go to the Riverside

neighborhood of Buffalo. A.C. accompanied him, and the defendant dropped A.C.

off at her mother’s house. During this visit with her family, A.C. did not use drugs,

and did not arrange to buy drugs. When the defendant returned to pick up A.C.,

they went directly back to the defendant’s residence at the halfway house at 384

Broadway.

That night, A.C. overdosed and died at the halfway house. Images recorded

by a halfway house security camera during the early morning hours of November

10th showed the defendant carrying A.C.’s limp body from his bedroom to the

bathroom across the hall. When paramedics arrived, they attempted to revive A.C.

but were unsuccessful. Buffalo Police Department Homicide officers arrived to

investigate and took photographs, some of which were also admitted into evidence.

After A.C.’s death, toxicology analysis showed that A.C. had heroin and

para/meta fluroisobutyryl fentanyl in her system. Para-fluroisobutyryl fentanyl is 4fluoroisobutyryl fentanyl and meta-fluroisobutyryl fentanyl is 3-fluoroisobutyryl

fentanyl. The toxicology analysis did not distinguish between the two isomers. Two

expert witnesses testified during the trial that the heroin and fentanyl analogue in

A.C.’s system caused her death.

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Arrests of persons supplied heroin by the defendant or his co-conspirators

and related drug seizures during the summer and fall of 2017 showed that the

defendant was selling heroin laced with 4-fluroisobutyryl fentanyl. In Erie County,

where Buffalo is located, only a handful of drug seizures have ever resulted in

detection of 4-fluroisobutyryl fentanyl. Nearly all were from the time period after the

defendant was out of custody and on parole.

Defendant Watkins argues more specifically that insufficient evidence

supports the jury’s verdict on Count 1 that he conspired with anyone or that he was

responsible for the substances that caused A.C.’s serious injury or death as charged

in Count 4. In resolving the defendant’s Rule 29 motion, the Court must evaluate

“the totality of the government’s case, . . . as each fact may gain color from others.”

United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (citing United States v.

Monica, 295 F.2d 400, 401 (2d Cir. 1961) (Friendly, J.)). And when the United

States introduces circumstantial evidence it “need not ‘exclude every reasonable

hypothesis other than that of guilt.’” Guadagna, 183 F.3d at 130 (quoting Holland v.

United States, 348 U.S. 121, 139 (1954)). Applying these principles, the evidence

during the defendant’s trial was clearly sufficient for “any rational trier of fact [to]

have found,” beyond a reasonable doubt that the jury’s verdicts and findings were

supported by legally sufficient evidence.

It is well-settled that to sustain a conspiracy conviction, “there must be some

evidence from which it can reasonably be inferred that the person charged with

conspiracy knew of the existence of the scheme alleged in the indictment and

knowingly joined and participated in it.” United States v. Gaviria, 740 F.2d 174, 183

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(2d Cir. 1984)). Anika Williams testified that the defendant was supplying heroin to

her and to others for resale. Williams testified that she sometimes delivered

controlled substances the defendant sold to others on his behalf. The defendant

taught Williams how to package drugs for resale. And a cooperating witness

testified that the defendant admitted that he wanted Williams to sell smaller

quantities of drugs so that he could concentrate on bulk sales.

Two cooperating witnesses who were customers of Williams testified about

purchasing heroin from her that she testified she obtained from defendant Watkins.

Chemical analyses showed the mixture of heroin in both of these sales contained 4fluoroisobutyryl fentanyl.

The evidence regarding Williams’ role in the conspiracy charged in Count 1

established the defendant’s agreement with Williams to sell controlled substances

for resale knowing and specifically intending that she would possess it and distribute

it to others. The testimony of cooperating witness Erin Cameron, including his

testimony about his routine distribution-weight purchases of heroin from the

defendant, and about a seizure of heroin laced with 4-fluoroisobutyryl fentanyl from

him, further supports the jury’s guilty verdict on the conspiracy charge. The Court

finds the evidence admitted at trial about the defendant’s drug-trafficking established

beyond a reasonable doubt that he knowingly participated in the conspiracy violating

21 U.S.C. § 846 that he was charged with in Count 1, and that he had specific intent

to accomplish its objectives of possessing with intent to distribute and distributing

heroin and 4-fluroisobutyryl fentanyl.

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Defendant Watkins suggests the jury’s guilty verdict on the conspiracy charge

was contrary to the evidence because Williams agreed during cross-examination by

defense counsel that she was like an “independent contractor.” The Court is

unpersuaded. As noted above, when the United States proves a conspiracy by

circumstantial evidence, the evidence “need not exclude every reasonable

hypothesis other than that of guilt.” United States v. Guadagna, 183 F.3d 122, 130

(2d Cir. 1999) (quoting Holland v. United States, 348 U.S. 121, 139 (1954).) The

jury had already heard Williams’ testimony about her guilty plea to a federal drugconspiracy offense based upon her conspiracy with the defendant. The jury

eventually heard and saw the evidence summarized above of Williams’ participation

in the conspiracy with the defendant, as well as Erin Cameron’s. The jury remained

free not to adopt Williams’ characterization during cross-examination of her drugtrafficking relationship with the defendant --- especially since it was instructed by the

Court before its deliberations on factors that are useful to distinguish a mere buyerseller relationship from that of co-conspirators.

Defendant Watkins more vigorously argues that the evidence admitted during

the trial did not support the jury’s conclusion that the mixture or substance ingested

by A.C. before her serious injury and death contained 4-fluroisobutyryl fentanyl, as

well as heroin, as was charged in Count 4. Due to limitations of analytic equipment

that was used for a post-mortem toxicology analysis relied upon the United States,

the evidence identified meta/para-fluroisobutyryl fentanyl in A.C.’s system but did not

distinguish between the presence of the meta isomer, 4-fluroisobutyryl fentanyl, and

the para isomer, 3-fluroisobutyryl fentanyl. The defendant insists that the

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imprecision of the toxicology analysis that was introduced into evidence

constructively amended the Indictment because it allowed the jury to convict him

regardless of whether the heroin in A.C.’s system included 3-fluroisobutyryl fentanyl

when the Indictment returned by the Grand Jury specifically charged that it was 4fluroisobutyryl fentanyl.

A constructive amendment of an indictment occurs when evidence at trial and

the jury instructions “so modify essential elements of the offense charged that there

is a substantial likelihood that the defendant may have been convicted of an offense

other than that charged in the indictment”. United States v. Lisyansky, 806 F.3d

706, 712 (2d Cir. 2015). But the amendment must be of an essential element of the

offense to be a constructive amendment. See United States v. LaSpina, 299 F.3d

165, 181 (2d Cir. 2002). And an indictment is not constructively amended just

because “a generally framed indictment encompasses the specific legal theory or

evidence used at trial.” United States v. Salmonese, 352 F.3d 608, 620 (2d Cir.

2003). The “proof at trial need not, indeed cannot, be a precise replica of the

charges contained in an indictment.” United States v. Heimann, 705 F.2d 662, 666

(2d Cir. 1983). “[S]ignificant flexibility in proof [is allowed], provided that the

defendant was given notice of the ‘core of criminality’ to be proven at trial.” United

States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992).

Here, defendant Watkins does not address how he was deprived of notice of

the “core of criminality” of the evidence offered against him. That the drug mixture

that allegedly caused the serious bodily injury or death of A.C. included 4-

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fluroisobutyryl fentanyl, as was specifically alleged in the Indictment, was not an

essential element of the death-resulted penalty enhancement in 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C). See generally, Leonard B. Sand, et al., 3 Modern

Federal Jury Instructions: Criminal, Instruction 56-2 (2021); Burrage v. United

States, 571 U.S. 204 (2014); see United States v. Knuckles, 581 F.2d 305 (2d Cir.

1978). The operative set of facts were the same whether A.C.’s serious injury or

death ultimately resulted from heroin laced with 4-fluroisobutyryl fentanyl, 3fluroisobutyryl fentanyl, or a combination of all three controlled substances. The

core of criminality was the same.

In any event, there was substantial circumstantial evidence that the heroin

A.C. used was laced with the 4-fluroisobutyryl fentanyl isomer charged in the

Indictment, meaning that there was no discrepancy between the evidence and

Indictment and no grounds for finding a constructive amendment or even a variance.

The United States introduced testimony establishing that 4-fluroisobutyryl fentanyl

was exceptionally rare in seized controlled substances in this geographic area and

nationally. According to the testimony of a chemist employed by the Erie County

Central Police Services laboratory, of the total of six controlled substance seizures

analyzed by that laboratory that detected 4-fluroisobutyryl fentanyl, four were

substances supplied to others by the defendant during the July to November 2017

time period at issue. All four corresponded to specific transactions proven during

the defendant’s trial.

The five grams of heroin purchased from the defendant by a cooperating

witness in defendant Watkins’ residence on November 9, 2017, less than 24 hours

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before her death, contained 4-fluroisobutyryl fentanyl. A.C. expressed a desire for

drugs while the cooperating witness was purchasing those five grams.

The defendant told the cooperating witness he could have “the rest” of the 18

grams that the witness had arranged to buy after the defendant picked it up later that

day. Until her death, A.C. was with the defendant except for the short period when

the defendant dropped her off at her mother’s residence. During that time period,

she was with relatives and neither acquired nor arranged to acquire any controlled

substance. After that, she was with the defendant at his residence until her

overdose.

Under all the circumstances proven during the trial, the Court finds that the

defendant was shown by legally sufficient evidence to have been the source of the

drugs detected in A.C.’s system during the post-mortem toxicology examination. A

rational jury could conclude beyond a reasonable doubt that A.C. ingested heroin

laced with 4-fluroisobutyryl fentanyl that was either distributed to her by the

defendant or that she took from his possession while he had the intent to distribute

it.

Moreover, evidence of the severe overdose symptoms that afflicted A.C.

before her death and the expert opinion evidence admitted during the trial

established that her overdose on heroin and a fentanyl analogue was an

independently sufficient factual cause of her serious injury or death. The jury

therefore had legally sufficient evidence to support its conclusion that the drugs A.C.

obtained from defendant Watkins were a but for cause of her serious injury or death.

The defendant’s motion pursuant to Rule 29 for a judgment of acquittal is denied.

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Rule 33 Motion for a New Trial. Defendant Watkins seeks a new trial

pursuant to Fed. R. Crim. P. 33 partly on the ground that COVID-19 related health

and safety protocols the Court followed during his trial violated his rights to a fair

trial. Rule 33(a) provides, in part, that “[u]pon the defendant's motion, the court may

vacate any judgment and grant a new trial if the interest of justice so requires.” In

general, the Rule “confers broad discretion upon a trial court to set aside a jury

verdict and order a new trial to avert a perceived miscarriage of justice.” United

States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). But “[t]o grant [a Rule 33]

motion, ‘[t]here must be a real concern that an innocent person may have been

convicted.’ ” United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (quoting

United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 1997) (alteration omitted).

The defendant complains of a Court requirement that prospective jurors and jurors

wear surgical masks covering their noses and mouths during jury selection and trial.

Specifically, defendant Watkins argues that he and his counsel were unable

to conduct effective voir dire because they could not adequately assess prospective

jurors’ facial expressions behind the surgical masks the Court had supplied to all

prospective jurors. Defendant made the same argument before jury selection

began. Doc. No. 146, pp. 4-5. The court heard oral argument and denied the

motion. In light of the serious public health and safety concerns due to the COVID19 pandemic, the Court found that its requirement that prospective jurors wear

surgical masks was not an unreasonable impediment to effective voir dire and

defendant’s rights to effective voir dire would not be violated because of the mask

mandate.

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During voir dire, the defendant did not request additional questioning of any

prospective juror based upon a concern that a surgical mask was impeding

assessment of the prospective juror. He did not ask that any prospective juror

remove a mask while being questioned to facilitate assessment of the juror. He

sought no additional procedural safeguard of any kind. When challenges for cause

were raised and preemptory challenges exercised --- the time during which the

Court may have been able to address any specific concerns --- the defendant did

not express any reservations about the efficacy of any challenges or the impartiality

of the jury. He nevertheless renews his earlier argument that his rights to a fair trial

were violated.

A defendant is entitled to a trial “by an impartial jury.” U.S. Const. amend.

VI. And jury selection is the “primary means” of protecting that right and of insuring

that the jury is “free from . . . predisposition about the defendant’s culpability.”

Gomez v. United States, 490 U.S. 858, 873 (1989). The Constitution does not

require a perfect voir dire procedure, but it does guarantee a defendant a free and

fair opportunity to expose prospective jurors’ biases and prejudices and a free and

fair opportunity meaningfully to exercise peremptory challenges. See generally,

United States v. Barnes, 604 F.2d 121, 137-41 (2d Cir. 1979).

Defendant Watkins cites no authority for his argument that the opaque

surgical masks were an unconstitutional impediment to effective voir dire. As other

courts that have addressed this argument have found, “[b]eing able to see jurors’

noses and mouths is not essential for assessing credibility because demeanor

consists of more than those two body parts since it includes the language of the

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entire body.” United States v. Trimarco, No. 17-CR-583 (JMA), 2020 WL 5211051,

at *5 (E.D.N.Y. Sept. 1, 2020) (quotation omitted). The defendant and his counsel

were able to observe and assess prospective jurors’ body language and voices

during voir dire. While “being able to see a potential juror's full facial expressions

may be tactically preferable, . . . the Court is unconvinced that it is required by the

Constitution.” United States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL 4917733,

at *8 (M.D. Ga. Aug. 21, 2020). Based on this reasoning, the Court finds that the

defendant’s rights to a fair and impartial jury were not violated by the Court’s

requirement that prospective jurors wear opaque surgical masks during jury

selection.

The defendant similarly argues that he was deprived of a fair trial because he

and his counsel were unable to assess jurors’ reactions to trial proceedings because

of the surgical masks. Again, the defendant cites no authority in support of his

argument, and he has alleged no instance of prejudice he suffered in support of the

argument. The Court followed health and safety protocols set forth in a Western

District of New York General Order2 regarding the COVID-19 pandemic, as well as

recommendations by a COVID-19 Judicial Task Force3. The protocols were

cumbersome, but the Court finds that while they may have impeded the defendant’s

ability to assess jurors’ reactions to openings, witness examinations and crossexaminations, exhibits, counsels’ objections, argument, rulings, and closing

https://www.nywd.uscourts.gov/sites/nywd/files/COVID-19%20General%20Order%20-%20Extension

%20to%20December%2024%2C%202020.pdf

https://www.uscourts.gov/sites/default/files/combined_jury_trial_post_covid_doc_6.10.20.pdf

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arguments, they did not deprive the defendant of his Sixth Amendment right to a fair

trial or his right to due process.

The defendant suggests that the jurors’ masks also violated his right to a

public trial, although he does not explain how. Giving the defendant the benefit of

this additional conclusory argument, the Court finds that his right to a public trial was

not violated based on the reasoning in United States v. Donziger, No. 11-CV-691,

2020 WL 4747532, at *3-4 (S.D.N.Y. Aug. 17, 2020).

Finally, the defendant argues that jurors’ concerns about the COVID-19

pandemic were such a large distraction during the trial that the trial was

fundamentally unfair. On or about the fourth day of proof, the Court’s courtroom

deputy clerk advised the Court and the parties that a juror told the deputy clerk that

counsel were not always following COVID-19 health and safety protocols during the

trial. The Court discussed the comment with counsel, but they were unable to

identify what may have prompted the juror’s comment. The Court made no further

inquiry of the juror or jury --- none was sought by either party and the Court elected

not to inquire further on its own --- and encouraged counsel for both parties to follow

all the health and safety protocols that had been adopted.

The defendant moved for a mistrial due to the juror’s observation on the

ground that the juror’s concerns about COVID-19 may have shown that the jury was

paying inadequate attention to the trial because of concern about COVID-19. He did

not seek removal of the juror who made the comment, and the Court did not

seriously consider removal of the juror on its own. In any event, the Court did not

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find grounds to conclude the jury was seriously distracted from the trial and denied

the motion for a mistrial.

Defendant Watkins now points to no other reason to think that the jury may

have been so distracted by their concern about the COVID-19 pandemic that he was

denied a fair trial. Nothing happened later during the trial to support the defendant’s

speculation that the jury was distracted. There were no further comments to Court

staff from any of the jurors. And based upon the Court’s observations, the jury was

generally very attentive during the trial. After the trial, the Court met with the jurors

to thank them for their service, and none expressed a COVID-19-related concern.

The Court therefore finds the jury was not unduly influenced by any COVID-19

concerns and that the defendant received a fair trial.

The Court has also considered defendant Watkins’ Rule 29 arguments that

the evidence against him was legally insufficient as additional possible grounds for

the Court to order a new trial pursuant to Rule 33. The Court is permitted under

Rule 33 to evaluate the weight of the evidence and the credibility of witnesses.

United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The Rule gives the

Court “broad discretion . . . set aside a jury verdict and order a new trial to avert a

perceived miscarriage of justice.” United States v. Ferguson, 246 F.3d 129, 133 (2d

Cir. 2001). Nevertheless, after consideration of the collective weight of the evidence

and of the defendant’s arguments for a new trial, the Court finds no manifest

injustice in the jury’s verdicts as to any of the convictions, the jury’s drug quantity

finding, or that the defendant’s drugs were a but for cause of the serious bodily injury

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or death of A.C. The defendant’s motion for a new trial pursuant to Rule 33 is

therefore denied.

CONCLUSION

For the reasons stated above, the motions of the defendant, Jawayne

Watkins, for a judgment of acquittal pursuant to Fed. R. Crim. 29 and for a new trial

pursuant to Fed. R. Crim. P. 33, Doc. No. 160, are denied.

IT IS SO ORDERED.

__s/Richard J. Arcara________

HONORABLE RICHARD J. ARCARA

UNITED STATES DISTRICT COURT

Dated: August 24, 2021

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.