USA v. Raquan Emahl Gray

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13516
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAQUAN EMAHL GRAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:20-cr-00053-CAR-CHW-3
____________________
Before WILSON , G RANT, and L AGOA, Circuit Judges.
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2 Opinion of the Court 22-13516
GRANT, Circuit Judge:
Raquan Emahl Gray was convicted of conspiracy to commit
a controlled-substances offense after helping transport a car full of
drugs to a state prison in the middle of the night. Gray says his
conviction cannot stand because the government failed to prove
that he knowingly possessed “a Schedule II controlled substance,”
methamphetamine specifically, rather than a controlled substance
generally. This assertion is incorrect—our precedent requires only
that the government prove general knowledge to obtain a
controlled-substances conviction. Because it did so here, we affirm
Gray’s conviction.
I.
It was the middle of the night. Two men drove to Raquan
Emahl Gray’s house in Columbus, Georgia with a bag of marijuana
in the trunk. Gray got in the backseat of the car with a black bag
in hand and directed the group to drive to Macon State Prison.
When an officer pulled the car over for a traffic stop and
instructed Gray and his companions to exit the car, Gray began to
panic. He immediately told the officer in an unprompted
statement that he knew “nothing about anything in the vehicle.”
He was, by his account, merely catching a ride to visit one of his
friends in Americus, Georgia. Smelling marijuana from the car, the
officer called for backup. Responding officers searched the car,
where they found a black bag and three packages wrapped in black
electrical tape in the backseat where Gray had been sitting. In these
three packages, they found smaller softball-size packages, each of
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22-13516 Opinion of the Court 3
which contained marijuana. The trunk revealed a clear bag with
yet another set of packages inside, these wrapped in duct tape.
When officers examined the contents of the bags, they found 50
cell phones, multiple cell phone chargers, 19 bags of tobacco, 19
lighters, methamphetamine, 150 pills of ecstasy, and marijuana.
The officers arrested all three of the car’s occupants.
Gray continued to deny any involvement in transporting the
drugs, but his story about visiting a friend in Americus fell apart as
the investigation continued. One of his coconspirators told police
that Gray had navigated the car to Macon State Prison—not
Americus. And even Gray admitted he had never asked the driver
to take him to Americus. Though Gray claimed he was planning
to stay with his friend for a few days, he did not pack a change of
clothes or even toiletries. Gray later offered an address for his
“friend in Americus,” but the person who lived there said he did
not know Gray or the alleged friend.
Gray, along with the two other men in the car, was indicted
for conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1),
§ 841(b)(1)(A), and § 846. The indictment stated that they
conspired to “knowingly possess with the intent to distribute, a
Schedule II controlled substance, to wit: 50 grams or more of
methamphetamine; all in violation of Title 21, United States Code,
Section 846 in connection with Title 21, United States Code,
Section 841(a)(1) and 841(b)(1)(A)(viii).”
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4 Opinion of the Court 22-13516
The case proceeded to trial. After the government rested its
case, Gray moved for judgment of acquittal under Federal Rule of
Criminal Procedure 29, arguing that there was not enough
evidence to convict him. The district court denied the motion.
The defense presented its case and at the close of all the evidence,
Gray did not renew his motion. The case went to the jury.
During deliberations, the jury submitted a note to the court:
“Hes [sic] guilty for the conspiracy but not for the meth. Were [sic]
hung up on the meth part.” The court clarified the law:
The Government is required to prove beyond a
reasonable doubt that the Defendant knew that the
unlawful purpose of the plan was distribution of a
controlled substance. The Government is not
required to prove that the Defendant knew the
substance was methamphetamine. The government
need only prove that it was methamphetamine.
The jury convicted less than twenty minutes later. Two
weeks after that, Gray renewed his Rule 29 motion for judgment
of acquittal, claiming that the district court had “constructively
amended the indictment by giving an additional charge to the jury
during deliberations.” He said the indictment charged a
methamphetamine offense, but the court had broadened the
indictment when it responded to the jury’s note. He added that
there was insufficient evidence to support a conviction for
methamphetamine distribution. The district court again denied
Gray’s Rule 29 motion, this time because he had not renewed it at
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22-13516 Opinion of the Court 5
the close of the evidence. The court also held in the alternative
that the evidence was sufficient to support the conviction.
Gray appeals the district court’s denial of his renewed
motion for judgment of acquittal on three grounds. First, he says
the district court’s jury instruction was per se reversible error
because the government had failed to show that he knew the
substance in the car was methamphetamine specifically, or at least
that it was a Schedule II controlled substance.1 Second, he claims
this failure left the government with insufficient evidence to
convict. And third, he says the district court erred when it decided
that he had failed to preserve his motion for acquittal.
II.
We review de novo a claim that a district court’s jury
instruction misstated the law or misled the jury. United States v.
Baston, 818 F.3d 651, 660 (11th Cir. 2016). An instruction that
“broadens the possible bases for conviction beyond what is
contained in the indictment” is a constructive amendment and
“constitutes reversible error per se.” United States v. Seher, 562 F.3d
1344, 1363 (11th Cir. 2009) (alteration adopted) (quotation
omitted); United States v. Behety, 32 F.3d 503, 508 (11th Cir. 1994).
We also review de novo both the denial of a motion for judgment
acquittal and a challenge to the sufficiency of the evidence,
1 The Controlled Substances Act classifies prohibited drugs into different
schedules based on legislative findings about a drug’s potential for abuse,
accepted medical use, and accepted safety. 21 U.S.C. § 812(a), (b). A drug’s
specified schedule may also change the applicable penalty under § 841(b).
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6 Opinion of the Court 22-13516
“drawing all reasonable inferences in the government’s favor.”
United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005)
(quotation omitted).
III.
We first address Gray’s contention that it was not enough
for the government to prove that he knew he possessed, generally
speaking, a controlled substance. He rests his argument on the
wording of his indictment. According to Gray, the fact that it refers
to “a Schedule II controlled substance, to wit: 50 grams or more of
methamphetamine” means that the government charged him not
with knowing possession of any controlled substance, but with
knowing possession of methamphetamine in particular—or at least
with knowing that he possessed a controlled substance on the
Schedule II list. So by instructing the jury that the government
need only show knowledge of any controlled substance, Gray says,
the district court amended the indictment and committed a per se
reversible error.
We have already addressed and rejected Gray’s argument in
United States v. Colston—and we do so again here. 4 F.4th 1179 (11th
Cir. 2021). There, just as here, the indictment charged a defendant
with violations of § 841(a)(1), § 846, and § 841(b), and it specifically
named the drug involved (cocaine rather than methamphetamine).
Id. at 1185. And there, just as here, the defendant challenged the
sufficiency of the evidence, claiming that the government was
required to prove her knowledge of the particular drug listed in her
indictment but failed to do so. Id. at 1186.
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22-13516 Opinion of the Court 7
But as we explained in Colston, § 841(a)(1), § 846, and
§ 841(b) do not require the government to prove a defendant’s
knowledge of a specific drug. “Section 841(a)(1) makes it unlawful
for any person knowingly or intentionally to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance,” and § 846 makes it a
crime to conspire to violate § 841(a)(1). Id. at 1187 (alteration
adopted) (quotation omitted). For both, the same state of mind is
necessary: “the defendant must knowingly possess, and intend to
distribute, a controlled substance, but need not know which
substance it is.” Id. at 1187–88. Section 841(b), on the other hand,
provides the possible penalties for a § 841(a)(1) violation “based on
only the type and quantity of drug ‘involved,’ not on what the
defendant knew.” Id. at 1188. So it has no mens rea requirement
at all. Id. That, we said, was why the indictment needed to list the
type of substance—by both name and schedule. See id.
Colston thus confirmed that an indictment listing a specific
substance simply establishes the type of drug the government must
prove at sentencing; it does not change the general knowledge
element for § 846 and § 841(a)(1). That approach tracks our
instruction that indictments must be read “as a whole” and given a
“common sense construction” based on “practical, not technical,
considerations—including the elements of the statutory offense.”
United States v. Phillips, 4 F.4th 1171, 1176 (11th Cir. 2021)
(quotations omitted).
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In explaining our holding in Colston, we specifically rejected
our contrary decision in United States v. Narog, which had said that
because the indictment in that case named a specific type of drug,
the government needed to prove the defendant’s knowledge of
that particular drug to the jury. 372 F.3d 1243, 1246, 1249 (11th Cir.
2004); see Colston, 4 F.4th at 1188–89. Narog and “its demand for a
hyper-technical parsing of every indictment,” we emphasized,
departed from longstanding precedent and thus was “not good
law.” Colston, 4 F.4th at 1188–89; see United States v. Gomez, 905 F.2d
1513, 1514 (11th Cir. 1990).
Gray tries to escape Colston’s reach, and our rejection of
Narog, by relying on another of our decisions, United States v. Achey,
943 F.3d 909 (11th Cir. 2019). We cannot see why. To start, Achey
ultimately held that the indictment in that case did not require the
government to establish the defendant’s knowledge of the specific
drug. Id. at 913. And its discussion and analysis of that issue
responded to Narog’s incorrect guidance—which we firmly
rejected in Colston. Id. at 914–15, 914 n.6; Colston, 4 F.4th at 1188–
89.2
In short, Gray’s indictment for violating 21 U.S.C. § 841(a)(1)
and § 846 required the government to prove only that he knew he
possessed a controlled substance, not that he knew he possessed a
certain controlled substance. The fact that the indictment named
a specific substance does not change this general-knowledge
2 Gray also relies on United States v. Sanders, 668 F.3d 1298 (11th Cir. 2012), but
his reliance on this case fails for the same reason his Achey arguments fail.
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22-13516 Opinion of the Court 9
requirement. Nor does the “Schedule II” notation. All that listing
methamphetamine did, then, was provide an element of an
enhanced penalty under § 841(b)—which does not carry a
knowledge requirement. The district court did not err when it
instructed the jury that the government need only prove that Gray
knew he possessed a controlled substance.
For this reason, we also reject Gray’s sufficiency challenge,
which his counsel correctly conceded depends entirely on his
argument that general knowledge was not enough.
IV.
Gray’s only remaining argument is that the district court
erred when it denied his Rule 29 motion for judgment of acquittal
because he did not timely renew that motion at the conclusion of
the evidence. He is correct that Federal Rule of Criminal
Procedure 29(c) allows a renewed motion both after the jury’s
discharge or within fourteen days after a guilty verdict, whichever
is later. So Gray’s motion, renewed on the fourteenth day after his
guilty verdict, was timely.
But not all errors warrant reversal. Weaver v. Massachusetts,
582 U.S. 286, 294 (2017). Errors that “do not affect the substantial
rights of the parties” are considered harmless. 28 U.S.C. § 2111; see
also Stansell v. Revolutionary Armed Forces of Colom., 45 F.4th 1340,
1349 (11th Cir. 2022). Just so here. On top of denying Gray’s Rule
29 motion for untimeliness, the district court held in the alternative
that sufficient evidence sustained his conviction. As we already
explained, we agree. So the district court’s error in rejecting Gray’s
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10 Opinion of the Court 22-13516
motion as untimely did not matter—his argument would have
failed on the merits anyway.
* * *
Because there was sufficient evidence for the jury to find that
Gray knew he possessed a controlled substance, we AFFIRM his
conviction.
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