United States of America v. Daeron Johnson Merrett, also known as Reez

United States Court of Appeals
For the Eighth Circuit
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No. 20-2801
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee
v.
Daeron Johnson Merrett, also known as Reez,
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 16, 2021
Filed: August 16, 2021
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury found Daeron Merrett guilty of offenses involving drug trafficking and
possession of a firearm. The district court1 sentenced him to 180 months’
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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imprisonment. On appeal, Merrett contests a pre-trial discovery ruling, two jury
instructions, and his sentence. We affirm.
I.
In 2018, law enforcement began to investigate Merrett for drug trafficking in
Des Moines, Iowa. During the investigation, a confidential informant purchased
ecstacy and cocaine from Merrett during five controlled transactions. Over a three-
month period, investigators also intercepted Merrett’s telephone calls and text
messages, and they monitored the location of his cellular telephone.
During this period of surveillance, Merrett traveled to Chicago four times to
obtain cocaine that he brought back to Des Moines for sale. Merrett’s source of
supply also delivered cocaine to Merrett’s residence in Iowa, and Merrett arranged
for a large delivery of cocaine that was to be transported to Iowa in an 18-wheeler
truck before it was intercepted at the Mexican border.
In March 2019, law enforcement officers executed a search warrant at Merrett’s
residence. Investigators seized cocaine, digital scales, drug packaging materials, a
firearm, and ammunition. A grand jury charged Merrett with conspiracy to distribute
cocaine, distributing cocaine and methamphetamine, and possession with intent to
distribute cocaine. See 28 U.S.C. §§ 841(a)(1), 846. The indictment also charged
him with possession of a firearm in furtherance of a drug trafficking crime, see 18
U.S.C. § 924(c)(1)(A)(i), and possession of a firearm as a previously convicted felon.
See id. §§ 922(g)(1), 924(a)(2).
Before trial, Merrett moved for an order requiring the government to identify
the statements of coconspirators that the prosecution intended to admit at trial as
“non-hearsay” under Federal Rule of Evidence 801(d)(2)(E). A magistrate judge
denied the motion, and Merrett proceeded to trial. The jury found him guilty of the
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drug trafficking charges and unlawful possession of a firearm as a felon, but acquitted
him on the other gun charge.
At sentencing, the district court calculated an advisory guideline range of 168
to 210 months’ imprisonment, and sentenced Merrett to a term of 180 months.
Merrett was subject to a minimum sentence of ten years’ imprisonment because he
had sustained at least one previous conviction in Iowa for a serious drug felony. See
21 U.S.C. § 841(b)(1)(B).
II.
Merrett first argues that the magistrate judge erred in denying his pre-trial
motion for disclosure of coconspirator statements. Merrett contends that his case
involved “high-volume discovery,” and that identification of the statements would
have provided him a “realistic opportunity” to review the statements and challenge
their admissibility.
Merrett did not object to the magistrate judge’s order denying his motion, and
his failure to object waives his right to review under Federal Rule of Criminal
Procedure 59(a). See United States v. Kelley, 774 F.3d 434, 439 (8th Cir. 2014).
Rule 59(a), however, is a “nonjurisdictional waiver provision,” so we may excuse
Merrett’s waiver, as warranted, “in the interests of justice.” Id. (quoting Thomas v.
Arn, 474 U.S. 140, 155 (1985)).
Even if we were to excuse the waiver, the magistrate judge did not abuse her
discretion in denying the motion. Merrett requested pre-trial identification of the
coconspirator statements on the ground that it was “impractical” for defense counsel
to “review all the recorded calls himself” and to “take all those calls to the jail” so
that Merrett could listen to them. The magistrate judge rejected those arguments,
concluding that there was no need for the government to involve itself in Merrett’s
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trial preparation by narrowing the focus for the defendant’s review of the discovery
materials. The judge reasoned that identification of the statements likely would lead
to discovery disputes over what qualified as a coconspirator statement, and that
Merrett’s “capable counsel” could manage the large amount of data or “hire technical
assistance.”
Although discovery in the case was voluminous, the judge observed that it
could be sorted electronically. Merrett does not argue that the government introduced
any coconspirator statement at trial that was not produced in discovery or that his
counsel was unable to review the statements in advance. Regardless of Merrett’s
personal involvement in the pretrial discovery process, he and his counsel were able
to invoke the ordinary procedure at trial under which the district court conditionally
admits the statements after a timely objection by the defendant, subject to a ruling on
admissibility at the conclusion of the evidence. See United States v. Bell, 573 F.2d
1040, 1044 (8th Cir. 1978). In denying Merrett’s motion, the magistrate judge
recognized appropriately the burden that would be placed on the government by the
pre-trial identification of coconspirator statements and the availability of the Bell
procedure. There was no abuse of discretion.
Second, Merrett contends that the district court erred in rejecting his proposed
buyer-seller instruction regarding the drug trafficking conspiracy. We review a
district court’s rejection of a proposed instruction for abuse of discretion. United
States v. Shavers, 955 F.3d 685, 696 (8th Cir. 2020).
Before trial, Merrett proposed the following buyer-seller instruction drawn
from the Seventh Circuit’s pattern instructions:
A conspiracy requires more than just a buyer-seller relationship between
the Defendant and another person. In addition, a buyer and seller of
cocaine do not enter into a conspiracy to distribute cocaine simply
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because the buyer resells the cocaine to others, even if the seller knows
that the buyer intends to resell the cocaine.
The district court declined to give the instruction because the evidence showed that
Merrett’s drug distribution involved “multiple relationships with multiple people,
distributions of multiple instances of seller quantities, distribution quantities, of
multiple substances.”
The ruling was not an abuse of discretion. Given the evidence, the district
court recognized correctly that a buyer-seller instruction would be contrary to the rule
that where “a case involves multiple sales of controlled substances and quantities that
are greater than that for personal use, a buyer-seller instruction is not appropriate.”
United States v. Davis, 867 F.3d 1021, 1034 (8th Cir. 2017); see United States v.
Cordova, 157 F.3d 587, 597 (8th Cir. 1998). The evidence showed that Merrett
obtained large amounts of cocaine that he then sold to customers, including customers
who redistributed the drugs to others. Therefore, the district court did not abuse its
discretion in rejecting Merrett’s proposed buyer-seller instruction.
The law of the Seventh Circuit that Merrett invokes is not materially different.
That court provides that district courts should give a buyer-seller instruction “where
the jury could rationally find, from the evidence presented, that the defendant merely
bought or sold drugs but did not engage in a conspiracy.” United States v. Cruse, 805
F.3d 795, 814 (7th Cir. 2015) (internal quotation omitted). But if there is “strong
evidence of a conspiratorial agreement,” then a buyer-seller instruction would only
serve to confuse the jury and need not be given. See id. at 814, 816. That was the
situation here. Merrett made multiple trips to Chicago to obtain large amounts of
cocaine, arranged for deliveries of cocaine to his residence in Iowa, and distributed
cocaine to resellers in Iowa. “[T]he relationship between middlemen and their
superiors is per se conspiratorial because it is an agreement to cooperate to sell
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drugs.” Id. at 816. The evidence established that Merrett was at least a middleman
in a drug distribution network, so he was not entitled to a buyer-seller instruction.
Third, Merrett disputes the jury instruction regarding his conviction for
unlawful possession of a firearm as a convicted felon under 18 U.S.C. § 922(g). He
argues for the first time on appeal that the jury was required to find not only that he
knew that he belonged to the category of persons barred from possessing a firearm,
see Rehaif v. United States, 139 S. Ct. 2191 (2019), but that he knew that he was
forbidden by law to posses a firearm. There was no plain error in failing to require
the government to prove that Merrett knew the law. “Rehaif did not alter the well-
known maxim that ‘ignorance of the law’ (or a ‘mistake of law’) is no excuse.”
United States v. Robinson, 982 F.3d 1181, 1187 (8th Cir. 2020) (internal quotation
omitted). We thus affirm Merrett’s convictions.
III.
Merrett also challenges his sentence. He maintains that the district court erred
in concluding that he was subject to a ten-year statutory minimum sentence under 21
U.S.C. § 841(b)(1)(B), but the issue is moot. The court sentenced Merrett to a term
of 180 months’ imprisonment, and the statutory minimum term had no effect on his
sentence. In any event, his argument that a conviction under Iowa Code
§ 124.401(1)(c)(3) is not a “serious drug felony” under § 841(b) due to the scope of
accomplice liability under Iowa law is foreclosed by United States v. Boleyn, 929
F.3d 932, 937-38 (8th Cir. 2019).
Merrett also contends that his sentence is substantively unreasonable because
a 180-month sentence is “far greater than necessary.” We review the substantive
reasonableness of a sentence under a deferential abuse of discretion standard, Gall v.
United States, 552 U.S. 38, 51 (2007), and apply a presumption of reasonableness to
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a sentence within the advisory guideline range. United States v. Chavarria-Ortiz, 828
F.3d 668, 672 (8th Cir. 2016).
The district court considered the factors under 18 U.S.C. § 3553(a), and arrived
at a sentence within Merrett’s advisory guideline range. The court considered the
need for deterrence and protection of the public, citing Merrett’s involvement in a
sophisticated drug trafficking network, his prior conviction, his violent history, and
his possession of a weapon. The court also acknowledged positive attributes in
Merrett’s history, and hardships that he experienced in detention, including
contracting COVID-19. Merrett does not argue that the district court failed to
consider a relevant factor or considered an improper factor, and we discern no clear
error of judgment in the court’s weighing of the § 3553(a) factors. United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). The sentence is not
unreasonable.
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The judgment of the district court is affirmed.
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