United States of America v. Michael David Watley

United States Court of Appeals
For the Eighth Circuit
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No. 21-2827
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United States of America
Plaintiff - Appellee
v.
Michael David Watley
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota
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Submitted: June 15, 2022
Filed: August 19, 2022
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
A jury convicted Michael Watley of two counts of distributing heroin in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Before trial, Watley filed multiple
motions in limine seeking to prevent the government from introducing certain

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evidence. Watley now appeals the district court’s1 denial of two of those motions in
limine. Watley also argues there was insufficient evidence to convict him of both
offenses and that the district court abused its discretion in imposing a 10-year
sentence. We affirm Watley’s conviction and sentence.
I. Background
Watley’s convictions were based on his alleged distribution of heroin to two
individuals: Wendy Wentz and Payton Garter.2 Both Wentz and Garter knew
Watley as “Kevin” or “Kev.” At trial, the government first identified Watley as
Kevin through Tessa Fox. Fox testified she purchased oxycodone and heroin from
someone named “Kevin,” who she identified in the courtroom as Watley. Fox
testified she purchased from Watley approximately four times a week and, on
occasion, met Watley at the Grand Theatre in Bismarck, North Dakota. The phone
number Fox used to communicate with Watley matched the number Wentz and
Garter used to communicate with Watley. The government then introduced evidence
of specific instances where Watley distributed heroin to Wentz and Garter.
A. Count One: Distribution to Wentz
On January 12, 2020, Wentz’s son called emergency services after he found
Wentz laying in her bathtub. Law enforcement arrived first on the scene and found
Wentz without a pulse. An officer observed a syringe laying on the edge of the
bathtub, prompting him to administer two rounds of Narcan3 to Wentz. Paramedics
then arrived on the scene and ultimately declared Wentz deceased.
1 The Honorable Daniel M. Traynor, United States District Judge for the
District of North Dakota.
2 Payton Garter formerly went by Payton Cadotte.
3 Narcan, or naloxone (generic name), is a medication used to revive
individuals who have overdosed on opioids.

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Law enforcement began investigating to determine whether illegal substances
contributed to Wentz’s death. Law enforcement obtained and executed a warrant to
search Wentz’s home. During the search they found three small “bindles” of heroin,
a small amount of methamphetamine, a baggie of marijuana, Clonazepam pills, and
drug paraphernalia in Wentz’s bedroom. They also found Wentz’s cell phone and
later extracted its contents.
At trial, the government introduced texts messages extracted from Wentz’s
phone. Specifically, the government introduced text messages between Wentz and
a contact named “Kevin.” As noted earlier, this number matched the number Fox
and Garter used to communicate with Watley.
The extracted records showed Wentz and Watley texting on January 8, 2020.
During the conversation, Wentz told Watley that she “want[s] to test it.” Wentz and
Watley then arranged to meet at a cafe located next to a “work out place” at the
Gateway Mall. About ten minutes after arranging the location, Wentz texted “here”
at 4:46 p.m. The government introduced surveillance video from a Planet Fitness
located next to a cafe at the Gateway Mall. The video showed a white car driving
through the parking lot at 4:44 p.m. Wentz’s son testified Wentz drove a white
Pontiac G6 car.
In addition, the government introduced surveillance of Watley checking into
Planet Fitness on January 7, 8, 11, and 12, along with corresponding check-in
records. Relevant here, the surveillance video shows Watley, a black male, checking
into Planet Fitness on January 11, 2020, wearing tan boots, camouflage pants, a dark
top, a gray scarf, and a dark stocking cap.
On January 11, 2020, Wentz texted Watley asking if he had “a half g.” Watley
indicated he did not, but that he would give Wentz a deal on the “point” he had left.
Wentz later asked, “how many you have left and what deak[?]” Watley replied “3
for 120.” Wentz then asked where Watley wanted to meet. Wentz’s phone records
indicate a twenty-second phone call followed. Wentz then texted “I’m here.”

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The government then introduced GPS location information collected from
Wentz’s cell phone showing she was at the Grand Theatre in Bismarck from 9:22–
9:27 p.m. Surveillance from the Grand Theatre corroborated this, showing a white
car arriving at 9:22 p.m.4 The surveillance video also showed a black male walking
from a nearby Motel 65 and Simonson’s Station Store toward the Grand Theatre and
entering the lobby of the theater at 9:22 p.m. The black male was wearing the same
outfit as the male seen checking into Planet Fitness earlier that day. Wentz texted
Watley “I’m here” at 9:23 p.m. Surveillance then showed the male exit the Grand
Theatre and walk toward and enter a white car. The white car then left the theater at
9:27 p.m.
B. Count Two: Distribution to Garter
On September 25, 2018, Nikiah Mommer called emergency personnel to the
apartment of Erica Berger, reporting a potential overdose. Mommer testified at trial
that earlier that day, Mommer and Berger obtained heroin from an individual named
Payton Garter. According to Mommer, she and Berger drove to Garter’s nearby
residence, and she retrieved the heroin from Garter. Once Mommer got back inside
Berger’s car, Mommer handed the heroin over to Berger. The two then drove back
to Berger’s apartment, where Mommer witnessed Berger bring out her syringe and
use the heroin. Mommer testified that she was on the phone when she noticed Berger
laying on the floor as though she had “overdosed.”
Mommer then called emergency personnel. Police arrived first, and Mommer
told the officer Berger had used heroin. Paramedics then arrived and found Berger
without a pulse and not breathing. Paramedics administered Narcan twice and on
the second try Berger regained her pulse and began breathing on her own. At trial,
4 Wentz’s son testified the car in the surveillance video looked like his
mother’s car.
5 The general manager of the Motel 6 testified Watley checked into the motel
on January 8, 2020, and checked out on January 15, 2020.

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one of the paramedics testified Narcan works only in cases where the individual has
overdosed on an opioid.
Garter testified at trial that she obtained the heroin she sold to Mommer from
“[a] guy named Kev.” Garter identified Watley as the individual she knew as Kev.
Garter went on to testify she obtained heroin from Watley multiple times, sometimes
three or more times a week when Watley “was around.” Garter testified she would
meet Watley to get drugs at different locations in Bismarck, such as a movie theater
near the Simonson’s Station Store called the Grand Theatre. Text messages between
Garter and Watley showed they communicated about purchasing heroin as recently
as January 8, 2020.
A jury ultimately convicted Watley of both distribution counts. At sentencing,
the district court granted the government’s motions to depart upward based on
Wentz’s death and Berger’s injury. The district court also granted the government’s
motion to vary upward based on the potency of the heroin Watley allegedly sold and
Watley’s alleged distribution of additional controlled substances.
II. Analysis
Before trial, Watley filed numerous motions in limine. Watley appeals the
district court’s denial of two of those motions. Watley also challenges the
sufficiency of the evidence produced at trial and the district court’s 10-year sentence
imposed on him.
A. Motions in Limine
Watley first argues the district court erred in denying two of his motions in
limine, which requested the government be prohibited from presenting evidence of:
(1) Wentz’s death and Berger’s overdose and (2) the transfer of heroin from Watley
to Garter. “We review the district court’s evidentiary rulings for abuse of
discretion.” United States v. Cavanaugh, 30 F.4th 1139, 1141 (8th Cir. 2022). We

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will reverse “only ‘if the district court’s evidentiary rulings constitute a clear and
prejudicial abuse of discretion.’” United States v. Keys, 918 F.3d 982, 985 (8th Cir.
2019) (quoting United States v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir.
2015)).
i. Berger’s Overdose and Wentz’s Death
Watley argues the district court erred by admitting evidence of Berger’s
overdose and Wentz’s death as intrinsic evidence. Watley argues the evidence
cannot be considered “intrinsic” evidence—that is, “evidence of wrongful conduct
other than the conduct at issue offered for the purpose of providing the context in
which the charged crime occurred.” United States v. Guzman, 926 F.3d 991, 999–
1000 (8th Cir. 2019) (quotation omitted). Watley argues the evidence cannot
provide context for his distribution charge because Wentz’s death and Berger’s
overdose happened after the charged crime was completed. Thus, Watley argues the
evidence was irrelevant to prove the crimes charged. In the alternative, Watley
argues the evidence of Wentz’s death and Berger’s overdose should have been
excluded because the evidence was unduly prejudicial.
Under Federal Rule of Evidence 402, “[r]elevant evidence is admissible.” We
have interpreted relevancy to include “evidence ‘providing the context in which the
crime occurred, i.e. the res gestae.’” United States v. Morrison, 748 F.3d 811, 812
(8th Cir. 2014) (quoting United States v. LaDue, 561 F.3d 855, 857 (8th Cir. 2009))
(defining admissible evidence under Rule 401). Intrinsic evidence “includes both
evidence that is inextricably intertwined with the crime charged as well as evidence
that merely ‘completes the story’ or provides context to the charged crime.”
Guzman, 926 F.3d at 1000 (quoting United States v. Young, 753 F.3d 757, 770 (8th
Cir. 2014)). The intrinsic evidence “need not be ‘necessary to the jury’s
understanding of the issues’ to be admissible,” but must withstand Rule 403’s
balancing test. Id. (quoting Young, 753 F.3d at 770); see Fed. R. Evid. 403 (stating
the court may exclude relevant evidence if “its probative value is substantially
outweighed by a danger of . . . unfair prejudice”).

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The district court did not abuse its discretion in admitting evidence of Berger’s
overdose. Berger’s overdose was relevant to prove the substance Watley distributed
was heroin. Berger had no pulse and was not breathing on her own when the
paramedics arrived on the scene. Once the paramedics successfully administered
Narcan, Berger regained her pulse and was able to breath on her own. As the
paramedic explained at trial, Narcan reverses only the effects of opioids like heroin.
Law enforcement did not find heroin or drug paraphernalia at Berger’s apartment.
Because of this, the evidence of the paramedics’ administering Narcan to Berger was
especially probative of Watley’s distribution of heroin. See United States v. Cathey,
997 F.3d 827, 832–33 (8th Cir. 2021) (recognizing Narcan as being probative of
heroin ingestion); United States v. Cooper, 990 F.3d 576, 583 (8th Cir. 2021) (same).
Moreover, the probative value of Berger’s overdose was not outweighed by unfair
prejudice. The district court’s instructions properly outlined the elements of
distribution of heroin—that is, they did not instruct the jury to convict Watley for
Berger’s injuries—thus mitigating the risk of prejudice. See United States v.
Sandstrom, 594 F.3d 634, 645 (8th Cir. 2010) (holding proper instructions can
“cure” prejudice because “juries are presumed to follow their instructions”) (quoting
Zafiro v. United States, 506 U.S. 534, 540 (1993)). The district court therefore did
not abuse its discretion in admitting evidence of Berger’s overdose.
Likewise, the district court did not abuse its discretion in admitting evidence
of Wentz’s death as intrinsic evidence. While Wentz’s death may not have been
necessary to prove Watley’s distribution under Count One, the evidence of her death
provided context to the government’s case. See Guzman, 926 F.3d at 1000. Wentz’s
death explained her inability to testify at trial. It also explained the context of the
drug evidence found in Wentz’s home. Law enforcement went to Wentz’s home in
response to a medical emergency and searched the area only after her death. Further,
the evidence was not unduly prejudicial. Most of the evidence Watley sought to
keep out—such as autopsy reports, photos of Wentz’s body, 911 calls, descriptions
of Wentz’s body, testimony of Wentz’s supposed ingestion of heroin, and Wentz’s
cause of death—was not presented at trial. And, again, the jury was properly

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instructed on the elements of distribution, and the jury instructions made no mention
of Wentz’s death, thus reducing the risk of prejudice. See Sandstrom, 594 F.3d at
645. Accordingly, we hold the district court did not abuse its discretion in admitting
evidence of Wentz’s death.
ii. Transfer of Evidence
Watley’s other motion in limine requested exclusion of evidence of the heroin
transfer between Garter and Berger. Watley argues evidence of Berger ultimately
possessing the heroin is irrelevant to his distribution charge because Watley
distributed the heroin to Garter. We disagree. The transfer of heroin between Garter
and Berger was relevant for proving distribution because it confirmed the drug
Watley distributed was heroin. Berger overdosed on the drug distributed by Watley,
and paramedics revived Berger using Narcan. Narcan reverses only the effects of
opioids such as heroin. The evidence of the transfer between Garter and Berger is
thus relevant in proving Watley’s distribution of heroin. See Fed. R. Evid. 401(a).
B. Sufficiency of the Evidence
Watley next argues the evidence at trial was insufficient to convict him of
both counts of distribution. “We review challenges to the sufficiency of the evidence
de novo, ‘viewing the evidence in the light most favorable to the verdict.’” United
States v. Gross, 23 F.4th 1048, 1052 (8th Cir. 2022) (quoting United States v.
Lussier, 844 F.3d 1019, 1023 (8th Cir. 2017)). We will only reverse “if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
Id. (quoting Lussier, 844 F.3d at 1023).
We are not persuaded by Watley’s arguments. First, Watley argues the
evidence establishing his guilt under Count One was insufficient because it was
based on circumstantial evidence. But we regularly uphold distribution convictions
based on circumstantial evidence. See, e.g., United States v. Cowley, 34 F.4th 636,
639–40 (8th Cir. 2022); United States v. Thompson, 881 F.3d 629, 632–33 (8th Cir.

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2018). And here, the circumstantial evidence strongly supported Watley’s
conviction. The government provided evidence of Wentz and Watley’s
communicating via text messages about purchasing heroin and meeting for the
distribution. The government then produced surveillance videos and GPS data
evidencing their execution of these plans. Watley’s identity in the surveillance
footage was verified by the Planet Fitness log-in records. The log-in records
corresponded with surveillance at the gym showing a man matching Watley’s
description in a distinct outfit on the day Watley discussed meeting with Wentz.
Then, surveillance from the Grand Theatre show a man in the same outfit. The
surveillance also shows Wentz’s car at the Grand Theatre and GPS placed Wentz at
the theater as well. Hours later, law enforcement found heroin in Wentz’s home.
Viewing the evidence in the light most favorable to the verdict, a reasonable jury
could have found Watley guilty under Count One beyond a reasonable doubt. We
thus affirm Watley’s conviction under Count One.
Second, Watley claims there was insufficient evidence to convict him of
Count Two because Garter’s testimony was unreliable. Watley argues a reasonable
jury would not have credited Garter’s testimony since Garter was a heroin addict,
failed to accuse Watley when initially questioned about the incident in 2018,
identified Watley from a single photograph, and testified in exchange for immunity.
Credibility determinations, however, are best left to the jury. United States v.
Thompson, 972 F.2d 201, 203 (8th Cir. 1992). We grant great deference to a jury’s
credibility determination and will only disturb such a determination if the
complaining party shows the testimony was implausible on its face. See United
States v. Campbell, 986 F.3d 782, 805 (8th Cir. 2021). Watley fails to make that
showing here. Garter’s testimony was logical, and portions of her testimony were
even corroborated by the text messages between Watley and Garter. Because
Watley fails to show any of Garter’s testimony was implausible on its face, we affirm
Watley’s conviction.

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C. Sentencing
Lastly, Watley argues the district court abused its discretion in imposing a 10-
year sentence. Specifically, Watley argues the evidence was insufficient to justify
the district court’s upward departures and variances. “We review a district court’s
decision to depart or vary upward for abuse of discretion.” United States v. Todd-
Harris, 19 F.4th 1074, 1077 (8th Cir. 2021). A district court abuses its discretion if
it: “(1) fails to consider a relevant factor that should have received significant weight;
(2) gives significant weight to an improper or irrelevant factor; or (3) considers only
the appropriate factors but in weighing those factors commits a clear error of
judgment.” United States v. Petersen, 22 F.4th 805, 807 (8th Cir. 2022) (quoting
United States v. Hewitt, 999 F.3d 1141, 1149 (8th Cir. 2021)). This court reviews
“any factual findings supporting a departure or variance for clear error.” Todd-
Harris, 19 F.4th at 1077.
After reviewing the record, we hold the district court’s findings supporting
Watley’s sentence were not clearly erroneous. First, the district court imposed a
seven-level upward departure for Wentz’s death under section 5K2.1 of the United
States Sentencing Guidelines Manual. See U.S.S.G. § 5K2.1 (“If death resulted, the
court may increase the sentence above the authorized guideline range.”). In doing
so, the district court found by a preponderance of the evidence that the heroin Wentz
obtained from Watley caused Wentz’s death. Watley argues the district court clearly
erred in finding Watley’s alleged distribution of heroin resulted in Wentz’s death
because Wentz’s autopsy did not “opine that only heroin use was the cause of
death[,]” instead indicating she died from a combination of methamphetamine and
heroin poisoning.
We disagree. This court has not directly addressed whether § 5K2.1’s “death
resulted” language requires “but-for” causation, see United States v. McKinnie, 21
F.4th 283, 290 (4th Cir. 2021), cert. denied, 142 S. Ct. 2798 (2022) (contemplating
the interpretation of § 5K2.1’s “death resulted” language after the Court’s decision

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in Burrage v. United States, 571 U.S. 204 (2014)6), but even if it does the district
court’s finding that heroin “played a central part” in Wentz’s death satisfies this
requirement. The district court’s finding is adequately supported by the record,
which shows that Wentz’s autopsy states she died of a combined overdose of
methamphetamine and heroin. The “combined” aspect of this cause of death
suggests the ingestion of both drugs, together, brought about Wentz’s death. Thus,
but for Wentz’s ingestion of the heroin Watley allegedly sold her, Wentz would not
have died from a methamphetamine and heroin overdose. For this reason, we cannot
say the district court clearly erred in finding Wentz’s death was caused by the heroin
Watley distributed. The district court thus did not abuse its discretion in imposing a
seven-level departure.
Watley also challenges the district court’s departure under U.S.S.G. § 5K2.2
based on Berger’s serious bodily injury. See U.S.S.G. § 5K2.2 (“If significant
physical injury resulted, the court may increase the sentence above the authorized
guideline range.”). Watley claims there was insufficient evidence to establish
Berger suffered an overdose and that the alleged overdose was due to the heroin
distributed by Watley. We disagree. “Serious bodily injury” includes “injury . . .
requiring medical intervention such as . . . hospitalization.” U.S.S.G. § 1B1.1,
n.1(M). The evidence at trial established that Berger was taken to the hospital after
the paramedics administered Narcan to revive her. Evidence also showed a close
temporal proximity between Berger obtaining heroin from Garter and Berger’s
injury, supporting the district court’s conclusion the injury was a result of Watley’s
heroin distribution. See United States v. Seals, 915 F.3d 1203, 1204, 1206 (8th Cir.
2019) (holding a tight chain of events, such as the distribution of a drug and ingestion
of the drug, strongly suggested the overdose was caused by that drug). Given this
evidentiary support, we cannot say the district court’s conclusion that Berger
6 In Burrage, the Court held the “resulted from” language contained in 18
U.S.C. § 841(b)(1)(C) required a defendant’s unlawful distribution of drugs be the
“but-for” cause of the victim’s death, rather than a mere contributing factor. 27 F.4th
at 216–18.

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suffered severe bodily injury was clearly erroneous. As a result, the district court
did not abuse its discretion in departing upward under U.S.S.G. § 5K2.2.
Watley next argues there was insufficient evidence to impose a four-level
variance7 based upon allegations that Watley distributed additional quantities of
controlled substances. Again, we disagree. It is within the district court’s discretion
to consider evidence of uncharged conduct produced at trial or during sentencing.
See United States v. Ross, 29 F.4th 1003, 1008–09 (8th Cir. 2022). At trial, the
government introduced evidence that Watley distributed heroin on numerous
occasions. Garter testified she acquired heroin, as well as other controlled
substances, from Watley on multiple occasions. When Garter used Watley as her
drug source, she would buy drugs from Watley as frequently as three or more times
a week. Cell phone records also showed Garter texting Watley about purchasing
heroin as recently as January 2020. Cell phone records also indicated Wentz
obtained heroin from Watley on January 10, 2020. Fox testified she purchased
heroin or oxycodone pills from Watley about four times a week between December
2017 and May 2018. None of these sales were factored into the base offense level
calculation. Given the evidentiary support for these additional distributions, Watley
fails to show the district court abused its discretion in imposing a four-level variance.
Finally, Watley argues the district court’s findings regarding the potency of
the heroin he allegedly distributed was clearly erroneous. While there was no direct
evidence of the heroin’s potency introduced at trial, there was circumstantial
evidence suggesting the heroin was highly potent. The government introduced text
messages from Watley bragging about the potency and quality of his heroin. Texts
7 We note the district court’s distinction between imposing a departure versus
a variance. “A departure occurs within the context of the Guidelines themselves,
which prescribe that the sentencing court should depart from the Guidelines range
in certain situations . . . .” United States v. Spotted Elk, 548 F.3d 641, 669–70 (8th
Cir. 2008). A variance, however, “results from a separate analysis of whether ‘a
non-Guidelines sentence would be more appropriate under the circumstances
pursuant to [18 U.S.C.] § 3553(a).’” Id. (quoting United States v. Washington, 515
F.3d 861, 866 (8th Cir. 2008)).

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from Watley’s customers, such as Wentz, also suggested they believed the heroin
was potent. And two of Watley’s customers, Berger and Wentz, overdosed in close
temporal proximity to ingesting heroin from Watley. Based on this evidence, we
cannot conclude the district court clearly erred in finding the heroin he distributed
was particularly potent. We thus hold the district court did not abuse its discretion
in varying upward based on the potency of the heroin Watley was distributing. See
United States v. Edmonds, 920 F.3d 1212, 1215 (8th Cir. 2019) (considering the
potency of the drug to support a variance under 18 U.S.C. § 3553(a) for the
seriousness of the offense).
III. Conclusion
For the reasons stated above, we affirm the district court.
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