UNITED STATES v. ZAYAS (2022)

OPINION OF THE COURT

During the early morning hours on July 7, 2016, Kathryn Ann Price was found dead in her bedroom from an overdose of fentanyl. The investigation that followed led to the arrest and prosecution of Louis Zayas. A jury subsequently convicted Zayas of distributing and conspiring to distribute the fentanyl that killed Price. He was also convicted of distributing fentanyl to someone who was pregnant as well as distributing it within 1,000 feet of a playground. The District Court sentenced Zayas to life imprisonment.

Zayas appeals arguing that the evidence was insufficient to establish guilt beyond a reasonable doubt, that he was prejudiced by the governments failure to timely disclose potentially exculpatory evidence, and that the Court erred by imposing two terms of life imprisonment. For the reasons below, we agree that the evidence is insufficient to support his conviction for distributing fentanyl within 1,000 feet of a playground as defined by the statute. However, we reject his other arguments and will therefore affirm in part, vacate in part, and remand for possible resentencing.

I. Background

Around midnight on July 7, 2016, a family member found Kathryn Ann Price dead in her bed. She was eight months pregnant. Investigators who responded to the emergency call observed evidence in Prices bedroom consistent with an apparent drug overdose. This included drug paraphernalia such as a spoon, syringes, and many white and blue glassine baggies. Testing of the residue in a blue baggie established that it contained fentanyl, the same substance that an autopsy would subsequently confirm as the cause of her death.

Text messages between Price and Louis Zayas shortly before her death and video from surveillance cameras outside of Prices house soon caused investigators to focus on Zayas. The text messages, which are discussed in detail infra Section II.A.1., revealed that Zayas had delivered drugs to Price the same evening that she died and that she had ingested those drugs just before her death. Additionally, a security camera captured Price engaging in transactions with the occupant of a car later confirmed to be owned by Zayas. The video also confirmed that after Price obtained drugs from Zayas, she returned to her house and subsequently left only once to walk her dog.

Based on this evidence, investigators arrested Zayas at his home about a month after Prices death. During a Mirandized interview immediately following his arrest, Zayas admitted to selling what he believed to be heroin to Price on the day she overdosed. Thereafter, Zayas entered into a plea agreement, which he subsequently withdrew. After he withdrew from the plea agreement, a federal grand jury returned a four-count superseding indictment charging him with (1) conspiracy to distribute and possess with the intent to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C);

(2) distribution and possession with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2;

(3) distribution and possession with the intent to distribute a controlled substance within 1,000 feet of a daycare center with an attached outdoor playground in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 860, and 18 U.S.C. § 2;

and (4) distribution and possession with the intent to distribute a controlled substance to a pregnant individual in violation of 21 U.S.C. §§ 861(f), 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2.

Following the close of all the evidence at the ensuing jury trial, Zayas moved for judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Procedure. Zayas claimed that the evidence was insufficient to prove that he delivered fentanyl to Price and that the nearby playground was not open to the public as required for a conviction on Count 3.

He also argued that the government had to prove that he knew that Price was pregnant when he sold her drugs and that the evidence was insufficient to establish that element of Count 4.

Finally, Zayas moved to dismiss the superseding indictment based on the governments delayed disclosure of a potentially exculpatory statement he made during a proffer interview held pursuant to his initial plea discussions with the government.

The District Court denied both motions and Zayas was convicted on all counts. The District Court subsequently sentenced Zayas to a term of life imprisonment as mandated by 21 U.S.C. § 841(b)(1)(C). The sentence consisted of separate terms of life imprisonment for Counts 1 and 2 and one year of imprisonment on Counts 3 and 4, all to run concurrently. This timely appeal followed.

II. Discussion

A. Sufficiency of Evidence

“We exercise plenary review over a district courts grant or denial of a motion for judgment of acquittal based on the sufficiency of the evidence.”

We interpret the evidence in the light most favorable to the government as the verdict winner and “do not weigh evidence or determine the credibility of witnesses in making [our] determination.”

We will sustain a verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

1. Distribution of Fentanyl Resulting in Death

Zayas was convicted on Count 2 of the superseding indictment for distributing the fentanyl that killed Price.

“Zayas does not deny selling Price drugs.”

Nor does Zayas argue the government needs to prove that he knew he was selling Price fentanyl.

Rather, he argues that the evidence is insufficient to prove that the substance he sold her was the fentanyl that caused her death. He claims that the evidence shows only that he sold her heroin. More specifically, Zayas believes that: (1) the record contains no evidence that the drugs he delivered to Price contained fentanyl, (2) there is no evidence connecting him to the blue baggie containing fentanyl found in Prices bedroom, and (3) that it is at least, if not more likely, that Price obtained the fatal drugs from someone else. We disagree.

Our standard of review of a challenge to the sufficiency of the evidence is highly deferential.

As we noted at the outset, the governments evidence included text messages between Zayas and Price during the thirty-four-hour period before her death, video footage outside the Price home, and witness testimony, including admissions Zayas made after his arrest. The text messages themselves are evidence of the delivery of controlled substances, negotiating the prices and quantity of drugs, as well as locations of meetings. The relevant texts begin the day before Prices overdose.

July 5, 2016 text messages:

2:06 p.m. Zayas: Hey I made a new contact with damn good shit

2:45 p.m. Price: Like how good

2:59 p.m. Zayas: Not like the best Ive ever had but good enough to get way higher than intended lol

3:00 p.m. Zayas: I actually get if from the middle man Scotts friend justin

3:02 p.m. Price: How much

․

3:09 p.m. Price: Ima try to get sum cash how much 40?

․

4:41 p.m. Zayas: Yeah 40 but Id rather give him 60 than give these guys another 30 lol 15

July 6, 2016 text messages:

1:13 p.m. Zayas: Im just getting up Im a Lil sick so u have anything

1:20 p.m. Price: Na not rite now․ Can u pawn Reg tools?

2:06 p.m. Zayas: Not really none of the places really want them

2:09 p.m. Price: Im working on get cash now u can get?

․

2:32 p.m. Price: Im getting 50$ in a Lil bit

2:33 p.m. Price: U can get

2:34 p.m. Zayas: Yeah n his stuff is goid

2:34 p.m. Zayas: Good

2:36 p.m. Price: Kk I asked the kid to drop it off b4 3 ․u got a sub tho to I can get like a half?

2:39 p.m. Price: Call now set it uo

3:03 p.m. Zayas: Hes just getting off Hazelton exit now hes gonna call me back in a minute

․

3:04 p.m. Price: So u wanna meet him here

3:04 p.m. Price: Hes got it on him

3:16 p.m. Price: ?

3:36 p.m. Price: Ask him how long․ My sister will be home soon 16

At Prices request, and consistent with her 2:36 p.m. message, her friend Anthony Almeida placed $50 in the mailbox outside her home between 2:00 p.m. and 3:00 p.m. Video footage shows Zayass car parking near Prices house at 3:55 p.m. on July 6. Zayas was the driver, and an individual identified as Justin Haines was in the passenger seat. Price can be seen approaching the car on the passenger side and engaging in a hand-to-hand transaction as she leans into the car.

During the interview after his arrest, Zayas told the DEA that he and Haines obtained money from Price to sell her drugs.

The video also shows Zayas and Haines driving away after Price went to his car. Zayas and Haines then proceeded to another location in Hazleton, Pennsylvania to get drugs to sell to Price. About an hour later, the text messaging between Price and Zayas resumed:

4:55 p.m. Zayas: Call u in 1 min

5:06 p.m. Price: Pull into the parking lot

5:07 p.m. Price: Give me a min my sister is leaving 19

Zayas returned to Prices house at 5:07 p.m., between five and seven hours before Prices death. Again, Price walked to the passenger side of the car where she obtained a bundle, or ten bags of drugs, via another hand-to-hand exchange before returning to her house. Afterward, the two continued to exchange text messages:

5:30 p.m. Price: Please dont forget about the sub I need it for the morning ․Friday I get paid to so Ima give u either cash or tic for it whichever u prefer

5:31 p.m. Price: There good tho․ Thank god u only did 2 20

Zayas stated in his post-arrest interview that after delivering the drugs to Price he too used some of the same drugs and immediately passed out. When asked if it was common for him to pass out after using heroin “[h]e emphatically stated no, hes never passed out a day in his life.”

Zayass statement is significant because it suggests that the drugs he and Price used that day were unusually potent. Increased potency is consistent with the presence of fentanyl, rather than the drugs being solely heroin.

As noted, video footage established that Price left her house only to walk her dog after purchasing drugs from Zayas. At about 9:30 p.m., Price told her mother she was going to bed and went to her bedroom. Around 10:00 p.m., Prices sister tried to call Price, however Price did not respond. Around midnight on July 7, Prices sister arrived home, entered Prices bedroom and found Price unresponsive and face down in her bed. Emergency personnel were summoned and responding paramedics found Price had no signs of life and concluded she was dead.

A forensic pathologist conducted an autopsy on Price the next day. The findings included a fresh needle mark on Prices right hand that was believed to have occurred at the time of her death. The toxicology report revealed the level of fentanyl in Prices blood was twenty-four nanograms per mil and a metabolite of fentanyl at twelve nanograms per mil. The testifying pathologist concluded, with 100 percent confidence, that the cause of Prices death was the injection of fentanyl. Additionally, a forensic toxicologist concluded that heroin did not play a part in Prices death.

It is uncontroverted that Zayas delivered a controlled substance to Price in the hours just before her death. The evidence includes Zayass admission that he sold Price drugs about seven hours before she was found dead. During their “drug talk,” she asked him to buy her $30 worth of drugs and he agreed. Zayas, along with Haines, picked up the money from Price at her house, and after getting the drugs, returned, and delivered one bundle (ten bags) of drugs to Price. These facts were not disputed at trial, nor are they at issue on appeal. Furthermore, they are corroborated by Prices text messages and video footage from security cameras at Prices house.

Since Price was trying to get drugs before she met Zayas and only left home to walk the dog after Zayas sold her drugs, the jury could readily conclude that those drugs were the only drugs she had that night. The evidence is sufficient to demonstrate that she had neither money nor opportunity to obtain drugs from anyone else.

On the day of her death, Price even told Zayas that she did not have any drugs. When Zayas told Price that he was a “[l]il sick” and asked if she had anything, Price responded, “Na not rite now.”

Moreover, the evidence indicates that Price did not have money to purchase drugs other than the drugs she obtained from Zayas. She texted Zayas, “Ima try to get sum cash how much $40?”

and “Can u pawn Reg tools? ․ Im working on get cash now ․ Im getting 50$ in a Lil bit ․ I asked the kid to drop it off b4 3.”

Finally, Price reminded Zayas to get her a “sub,” short for suboxone,

and she would pay him on Friday when she would get paid.

A DEA agent also testified that in his experience, habitual drug users, like Price, do not store drugs for later use.

A reasonable trier of fact could also conclude Price injected the drugs she purchased from Zayas shortly after receiving them and that those drugs contained a fatal dose of fentanyl. Soon after Zayas delivered the drugs to Price she texted him: “There good tho․ Thank god u only did 2.”

This text suggests not only that she used the drugs Zayas gave her a few minutes before, but also alludes to the drugs potency. As we noted earlier, Zayas also discussed the potency of the drugs he was getting from his source on the day before he delivered drugs to Price. He described them as “damn good shit” and “good enough to get way higher than intended.”

Zayas also told the DEA that when he took the drugs, after delivering some to Price, he passed out. He said he never passes out after taking heroin. This clearly allows a rational trier of fact to conclude beyond a reasonable doubt that Zayas delivered drugs containing a fatal dose of fentanyl to Price, and she died because she ingested them.

Although Zayas may not have known that the drugs he delivered to Price contained fentanyl, his subjective belief is simply irrelevant.

Zayass argument that the evidence is insufficient because the record instead suggests a connection between the blue glassine bag, found near Prices body, and a drug dealer other than himself is also unavailing. He contends the evidence could be interpreted to suggest that “drugs delivered by [another drug dealer] caused Prices death.”

Zayas argues this drug dealer, only identified as “Dee,” was more likely to have supplied the fentanyl to Price than he was. This assertion is mostly based on the fentanyl residue found in a blue glassine baggie near Prices body. Although around 100 blue and white glassine baggies were found in Prices bedroom, only a single blue bag contained any residue and it was the only one submitted to the laboratory. Testing confirmed it was fentanyl residue.

Text messages between Price and Dee five days before her death show that Price asked Dee, “U have the blue ones,” referring to blue glassine baggies.

Zayas told the DEA immediately following his arrest that he believed the baggies he delivered to Price on the day of her death were white, but he was not sure. Zayas seizes upon that statement to argue that there is no evidence connecting him to the blue baggie found in Prices home. He also relies on the prior text exchange between Price and Dee to claim that Price got the blue baggie from Dee and not from him. But this argument misses the point.

Text messages between Price and Dee do not negate the evidence against Zayas nor diminish its sufficiency.

“Reversing the jurys conclusion simply because another inference is possible—or even equally plausible—is inconsistent with the scope of our inquiry for review of sufficiency of the evidence challenges.”

Instead, only when the record contains no evidence, however it is weighed, from which the jury could find guilt beyond a reasonable doubt, will we overturn a verdict.

As we have explained, the jury could reasonably conclude that Price did not have any drugs before she purchased the drugs from Zayas just before her death. The jury could also reasonably conclude that those drugs contained fentanyl because both Price and Zayas had discussed the drugs unusual potency. There was clearly something different about the drugs that Price obtained from Zayas the night she overdosed, and it is mere speculation to argue that she had drugs from someone other than Zayas. In fact, the evidence is to the contrary. Prices own text messages support that she did not have any drugs the night of her death before she obtained drugs from Zayas. The evidence is clearly sufficient to establish Zayass guilt beyond a reasonable doubt. 39

2. Conspiracy to Distribute Fentanyl Resulting in Death

The jury also convicted Zayas of conspiring to distribute (or distributing) a controlled substance resulting in death as charged in Count 1. To establish a conspiracy, the government must prove a shared unity of purpose, an intent to achieve a common goal, and an agreement to work together toward that goal.

The government produced enough evidence to prove that Zayas distributed fentanyl to Price as the result of a preconceived scheme or common understanding with Haines.

According to Zayas, three people could be considered co-conspirators: Dee, Price, or Haines. He argues however, that the evidence fails to establish the required elements of conspiracy between himself and any of those three individuals. Although we agree that a rational trier of fact could not find a conspiratorial agreement between Zayas and Dee or Price, Zayas is incorrect about Haines.

Zayas argues that “[w]hile [he] indicated that he intended to compensate Justin [Haines], the record does not show that Justin expected compensation or that he had any knowledge that in being in Zayass presence he was participating in an illegal conspiracy.”

This is only half true.

Zayas and Haines were in the car together and picked up the money from Price. They also both returned and delivered the drugs to her. The text messages between Zayas and Price reveal that they intended to tip Haines for acting as the middleman in the transaction. He was part of a conspiratorial agreement with Zayas to obtain drugs for Price and then distribute drugs to her.

Yet the most substantial evidence of an agreement between Zayas and Haines was Zayass description of going with Haines to get the drugs after picking up the money from Price. Zayas explained that he drove Haines to a street corner, dropped him off, and waited for Haines to contact him by cell phone. When Haines contacted Zayas a couple of minutes later, Zayas picked up Haines and the two returned to Prices house to deliver the drugs. The jury could hardly conclude anything other than that Zayas and Haines conspired together to distribute the controlled substance to Price.

3. Distribution of Fentanyl to a Pregnant Individual

Zayas moved for judgment of acquittal on Count 4 (distribution to someone who is pregnant) at the close of the evidence. 21 U.S.C. § 861(f), captioned “Distribution of controlled substance to pregnant individual,” states in its entirety: “Except as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally provide or distribute any controlled substance to a pregnant individual in violation of any provision of this subchapter.” Aside from contending that the evidence was insufficient to establish he delivered fentanyl, Zayas claimed that the record was also insufficient to establish that he knew Price was pregnant. Along with arguing that the evidence was sufficient, the government argued that it was unnecessary to prove knowledge of the pregnancy to sustain a conviction under the statute. Rather, the government claimed that § 861(f) is a crime of strict liability. The District Court agreed that knowledge of Prices pregnancy was not required to sustain a conviction under § 861(f) and instructed the jury accordingly:

Count 4 of the superseding indictment charges the defendant with distribution of a controlled substance to a pregnant individual, namely Kathryn Price. This is a separate violation of federal law. In order to find the defendant guilty of this offense, in addition to those elements that Ive already explained to you, you must also find that the government prove beyond a reasonable doubt that the defendant distributed a controlled substance to a pregnant individual, namely Kathryn Price. The government need not prove that when the defendant distributed the controlled substance he knew that the individual was pregnant.44

The jury convicted Zayas for distribution of a controlled substance to a pregnant individual (Price) as charged in Count 4.

As noted, under the statute, it is “unlawful for any person to knowingly or intentionally provide or distribute any controlled substance to a pregnant individual.”

The Supreme Court has explained that “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.”

The Court explained that this is so because “[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.”

This presumption, that the mens rea requirement generally extends to each element of a criminal statute, may be rebutted in special contexts.

The government urges us to agree with other circuit courts of appeals in deciding the appropriate mens rea in a comparable provision of § 861. It points us to § 861(a)(1), which makes it unlawful “to knowingly and intentionally ․ employ, hire, ․ or coerce a person under eighteen years of age to violate any provision of this subchapter or subchapter II.”

Five circuit courts of appeals have held that the government need not prove the defendant knew the juveniles age to establish guilt under that subsection.

These courts reason that the legislative intent of protecting juveniles would be subverted if a defendant could close his or her eyes to the age of minors.

Thus, argues the government here, we should similarly consider the need to protect unborn children in deciding the required mens rea in § 861(f).

Concomitantly, the government urges us to approach § 861(f) as we approached § 860(a) in United States v. Jackson.

As will be discussed below, § 860(a) makes the possession with the intent to distribute a controlled substance within 1,000 feet of a school unlawful.

In Jackson we concluded that § 860(a) does not require the government to prove the defendant knew that s/he was within 1,000 feet of a school while possessing a controlled substance.

Instead, the government need only prove the defendant knowingly possessed the controlled substance within 1,000 feet of a school and intended to distribute it.

Thus, the government contends that knowledge of pregnancy is similarly not required under § 861(f).

The governments argument ignores the textual distinctions between sections 860(a) and 861(f). Section 860(a) does not contain any mens rea requirement. Rather, it simply states that “[a]ny person who violates section 841(a)(1) ․ by distributing ․ a controlled substance ․ within one thousand feet of ․ [a] school” is subject to twice the maximum penalty authorized by § 841(b).

The mens rea element of § 860(a) is found in the violation of § 841(a)(1), but that is distinct from the substantive provisions of § 860(a) that criminalize distribution within 1,000 feet of a school.

Unlike § 860(a), § 861(f) includes an express mens rea requirement. That requirement specifies that it is “unlawful for any person to knowingly or intentionally provide or distribute any controlled substance to a pregnant individual.”

The text therefore limits criminal liability under § 861(f) to such sales being made “intentionally or knowingly ․ to a pregnant individual[.]”

The limitation is independent of, and in addition to, the other provisions of § 841(a)(1). Therefore, Jackson supports the conclusion that the government bears the burden of proving the defendants knowledge of an individuals pregnancy.

Section 861(f) thus requires knowledge of the transferees pregnancy. Even if the governments contrary interpretation suggests an ambiguity in the statute, we would then consult legislative history to resolve it.

The floor debate when § 861(f) was offered as an amendment to the Controlled Substances Act shows that the sellers knowledge of the pregnancy was intended to be a required element.

In addressing questions on whether the text of the amendment required proof of a defendants knowledge of the pregnancy, Senator Hawkins, who offered the amendment, answered: “Yes, reasonable knowledge.”

Accordingly, the District Court here erred in removing the knowledge element from the jurys consideration by instructing jurors that such proof was unnecessary. This does not, however, mean that Zayass conviction on Count 4 must be vacated. “[T]he omission of an element [from jury instructions] is subject to harmless-error analysis.”

“Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”

Therefore, rather than vacating the conviction, as Zayas urges, we must review for harmless error.

The harmless-error standard is the converse of the insufficient evidence standard. Rather than ask whether any rational jury could conclude that Zayas knew Price was pregnant, we must determine whether a rational juror viewing the evidence could only have concluded that he knew she was pregnant.

Dr. Ross, who conducted the autopsy, along with Prices father and mother, all testified that Price was eight months pregnant. When asked “how big” Price was in her eighth month of pregnancy, her mother stated: “She was huge. You can definitely tell she was pregnant.”

Similarly, when asked how far along Price was in her pregnancy, Prices sister stated, “She had that pregnant belly.”

Finally, when Prices brother was asked if Price was noticeably pregnant, he responded, “[V]ery.”

There was also evidence that Zayas and Price were together in a car only a week before her death in July. The jury thus could have readily assumed that her stomach would not have been covered by any kind of heavy clothing that would have prevented Zayas from seeing her “pregnant belly.” We therefore conclude that the evidence supported only one conclusion: Zayas knew Price was pregnant when he sold her the drugs that killed her. The Courts erroneous charge as to that element of § 861(f) was therefore harmless.

4. Distribution or Possession with the Intent to Distribute Fentanyl within 1,000 Feet of a Playground

Count 3 of the superseding indictment charged Zayas with distribution or possession with the intent to distribute a controlled substance within 1,000 feet of a playground in violation § 860(a). This section provides that

[a]ny person who violates section 841(a)(1) ․ by distributing, possessing with intent to distribute ․ a controlled substance ․ within one thousand feet of, the real property comprising a ․ playground ․ is ․ subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b).69

Section 860(e)(1) defines a playground as “any outdoor facility ․ intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children.”

By convicting Zayas under § 860(a), the jury necessarily concluded that he distributed fentanyl within 1,000 feet of the playground attached to the Busy Bee day care facility. The day care is located across the street from Prices house, where the delivery took place. The Busy Bees owner testified about the characteristics of the facility, including the attached playground. The facility itself is privately owned and comprises the entire bottom level of a building. Members of the general public may pay to enroll in the day care. Attached to the rear of the day care center is a fenced-in play area, containing several pieces of plastic equipment for enrolled children to use. The fence is secured by a latch. Zayas moved for a Rule 29 acquittal on this Count arguing that the evidence was insufficient to establish that the Busy Bee playground satisfied the statutory definition of playground under § 860(e)(1). Specifically, he asserted that the attached playground is not “open to the public.”

The jury was instructed that a conviction for this offense could be sustained by finding beyond a reasonable doubt that Zayas knowingly and intentionally possessed with intent to distribute fentanyl “within 1,000 feet of the real property comprising a daycare center with an attached outdoor playground.”

The jury, however, was not provided with the statutory definition of a playground. Only after the jury returned a guilty verdict did the District Court deny Zayass motion for acquittal, finding, as a matter of law, the playground was open to the public within the meaning of § 860(e)(1).

We now join several other circuit courts of appeals in holding that the definition of a playground must be proven as an element of § 860(a).

In United States v. McQuilkin, we held that § 860 is a substantive offense separate from § 841(a)(1); it is not a sentencing enhancement.

We reasoned that “it requires a separate and distinct element—distribution within 1,000 feet of a school.”

Thus, due process requires that a conviction under § 860(a) be supported by proof beyond reasonable doubt of all the elements of that offense.

These include the distribution, or possession with intent to distribute, a controlled substance “within 1000 feet of (1) an ‘outdoor facility,’ which is (2) ‘intended for recreation,’ (3) ‘open to the public,’ and also (4) contains ‘three or more separate apparatus intended for the recreation of children.’ ”

Here, the jury was asked to weigh the evidence of Zayass intent to distribute a controlled substance within 1,000 feet of a playground without knowing the government had to prove that the area next to the Busy Bee constituted a playground under § 860(a). When examining the adequacy of a jury charge, “we determine whether the instruction, viewed as a whole in the light of the evidence, fairly and adequately submits the issues to the jury.”

“[W]here terms are not readily understood by the jury or where the possibility of confusion concerning a term exists, the court should define or explain such term.”

Unlike many other facilities enumerated in § 860(a), such as elementary schools or universities, Congress provided a specific definition for a playground.

To sustain a conviction under § 860(a), the government must prove a playground meets the statutory definition in § 860(e)(1). That requires that the facility be open to the public.

The ordinary term “playground” has varied meanings. “We refer to standard reference works such as legal and general dictionaries in order to ascertain the ordinary meaning of words.”

The Oxford English Dictionary defines a playground as “[a] piece of ground used for playing on, esp. one attached to a school or in a public park.”

Merriam-Webster defines it as “a piece of land used for and usually equipped with facilities for recreation especially by children” or “an area known or suited for activity of a specified sort.”

But because Congress limited the reach of the statute to playgrounds “open to the public,” not all playgrounds, as defined above, are “playgrounds” as defined by Congress. Therefore, in Zayass case, the jury had to find beyond a reasonable doubt that his distribution of fentanyl occurred near a playground as defined in the statute, rather than a “playground” in the ordinary sense of the term. The jury was never informed of that.

Whether a playground is open to the public is a mixed question of law and fact that is typically submitted to the jury.

Since whether the Busy Bee playground was open to the public was not properly submitted to this jury, Zayass conviction under § 860(a) can only stand if the courts omission was harmless.

This is unlike the factual determination of whether Zayas knew that Price was pregnant when he sold her the fatal dose of drugs. Here, the failure to instruct the jury on the statutory definition of a playground and then asking the jury to determine whether the Busy Bee playground satisfied the definition in § 860(a) was not harmless.

The governments contention that this playground was open to the public is solely based on the testimony of the Busy Bees owner who reported that the day care facility itself is open to the general public on a fee basis. The government therefore argues that is sufficient for any jury to reasonably infer that the attached playground is similarly open to the public. We are unpersuaded.

The term “open to the public,” as used in the statute, implicates the accessibility of the playground. In the statutes penalty section (a), the words “public” and “private” are often used to identify applicable types of facilities.

Examples include a “public or private college,” a “public or private youth center,” and “public swimming pool.”

Therefore, “public” and “private” in the statute are adjectives that modify the proprietary nature of each facility. Playground, however, is distinctly conditioned in section (e) and must be “open to the public.”

Public is thus used as a noun, modified by “open to.” Therefore, the playground must be accessible to the general public rather than being publicly maintained or owned.

That the Busy Bee allows members of the general public to enroll in its day care facility and thereby gain access to the attached playground does not, without more, make the playground itself accessible to the general public. In fact, when asked at trial whether the playground “is ․ open to the general public for use,” the owner responded that it was not.

The governments assertion that the Busy Bee playground is open to the public because anyone can gain access to it by enrolling in the day care center would negate the congressional restriction on the reach of the statute. It is hard to imagine a playground that would not be “public” under the governments broad reading. A member of the general public could gain access to even the most restrictive facilities by paying a fee and satisfying any other membership requirements. The most restrictive private club is, after all, accessible to any member of the public who joins the club and pays applicable fees. We therefore reject the governments invitation to stretch this statute to include the Busy Bee playground. We also consider that the Busy Bee playground is surrounded by a fence secured with a latch. While the existence of a latched fence is not dispositive of whether a playground is or is not open to the public, it is certainly relevant to the inquiry. Without evidence that the secured fence serves some purpose other than keeping the public out and restricting access, we can only conclude that the fence serves to exclude the general public from the recreational area it encompasses.

Moreover, in interpreting whether the Busy Bee playground is accessible to the public, we are persuaded by the very helpful and thoughtful analysis of an analogous state statute by the Texas Court of Criminal Appeals in Curlee v. State.

There, in concluding that evidence was insufficient to support the “open to the public” element of the Texas drug-free zone statute, the court relied largely on the owners apparent intention to control and limit access to the playground.

Curlee involved a church playground surrounded by a chain link fence with four gates.

Evidence showed that two of the gates were locked, one with a deadbolt, the other with a padlock, while the other two gates could have been locked in a similar manner.

The Court in Curlee concluded that the locked gates signified that the church intended to assert dominion and control over access to the playground. That those attempts were less than perfect, or even inadequate, to keep members of the general public out, did not transform the playground into one that was “open to the public.”

The fencing surrounding the Busy Bee playground similarly suggests the owner sought to exert at least some level of control over access to the playground and preclude access by the general public, even though that exercise of dominion was far from perfected. The fence contained a single gate secured with a latch, and it is unclear from the record whether it could be, or was intended to be, locked. Nevertheless, the fact that it may not have been locked cannot be interpreted as an open invitation to members of the general public to “come on in” and use the Busy Bees facilities for recreation. It is also fair to assume that a member of the general public would not conclude he or she was permitted to enter and use the playground just because the gate may not have been locked. Accordingly, we will vacate Zayass conviction on Count 3 for selling a controlled substance within 1,000 feet of a playground as defined in § 860(e)(1), and we will remand for resentencing on that Count. B. Disclosure of Brady Material

Zayas also contends that the superseding indictment should have been dismissed because the government failed to disclose exculpatory evidence in a timely manner. To the extent that this evidence constitutes Brady material,

it was made available to Zayas in the afternoon on the second day of a four-day trial. Zayas was therefore able to effectively use the evidence at trial, and any delayed disclosure was successfully cured.

Zayass challenge centers on the governments failure to timely disclose one of his statements that he believed the drugs that he delivered to Price were in white bags.

He told the DEA investigators this twice. The first time was while being interviewed immediately following his arrest when he stated he was not sure but thought maybe they were white. This statement was disclosed to Zayas before trial. The second time was during the proffer interview with the DEA after Zayass initial agreement to plead guilty and was memorialized in an agents notes. These notes, however, were not provided to Zayas until late on the second day of trial and are the basis of his Brady challenge. Zayas contends that the governments delayed disclosure of the DEAs notes resulted in prejudice because it greatly affected his trial strategy and interfered with his ability to examine some witnesses about the discrepancy. We disagree. Brady v. Maryland held the governments suppression of evidence favorable to the defendant violates due process “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government].”

Zayas and the government agree the statements described above are indeed Brady material.

We agree with the District Courts conclusion that the government disclosure of Zayass statement was not delayed in a manner that prejudiced him at trial. A Brady violation occurs if the government does not disclose evidence favorable to the defendant that is material to either guilt or innocence, and this failure prejudices the defendant.

Our prejudice inquiry turns on whether the defendant received a fair trial, one resulting in a verdict worthy of confidence, in the absence of the evidence.

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Here, there was no prejudice.

Zayass assertion—that he believed he delivered drugs in white bags—was not new information. He raised this concern in his pro se letter seeking to withdraw his guilty plea. He also had his arrest interview statement expressing his belief that he delivered drugs in white bags. It is therefore difficult to see how failure to disclose the DEAs note referencing this same belief would have affected Zayass trial strategy.

Moreover, Zayas cross-examined several government witnesses about this discrepancy in the color of the drug bags, the fact that a blue bag containing fentanyl was found near Prices body, the references in text exchanges between Price and Dee about blue bags, and Zayass statement that he believed he delivered white bags. During cross-examination Trooper Bachman confirmed both blue and white bags were found at the scene of Prices death. Trooper Quiroz was questioned about Dees text message about the “blue one” and about the blue glassine baggie found near Price in her room. Additionally, Special Agent Begley was cross-examined about Zayass post-arrest statement and about how no blue bags were found at Zayass house during the execution of a search warrant. To the extent that the government delayed disclosure of the DEAs note of Zayass statement, Zayas was nevertheless able to use that information. He was clearly not prejudiced by any delayed disclosure of his own statement that he was well aware of, and the District Court correctly rejected his attempt to dismiss the superseding indictment on that ground.

C. Sentencing

Lastly, we affirm the District Courts sentencing of Zayas to two concurrent terms of life imprisonment for convictions on Counts 1 and 2.

Zayas first argues that, under the First Step Act of 2018, the District Court incorrectly applied the statutory minimum term of life imprisonment for his convictions under 21 U.S.C. § 841(b)(1)(C). The First Step Act lowered the statutory minimum sentences and substituted the predicate convictions for enhanced sentences from a “felony drug offense” to either a “serious drug felony or serious violent felony” under 21 U.S.C. § 841(b)(1)(A).

101

The Act also replaced “felony drug offense” with “serious drug felony or serious violent felony” under § 841(b)(1)(B).

102

The Act did not make any revisions to § 841(b)(1)(C), the provision that applies to Zayass penalty for conviction on Counts 1 and 2. The applicable text of the section states:

If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment.103

Zayas has two prior convictions for a felony drug offense. Therefore, the District Court did not err in sentencing Zayas to two terms of life imprisonment for convictions under Counts 1 and 2 of the indictment.

Secondly, Zayas contends that the District Court erred in adopting the Presentence Investigation Reports base level offense calculation of 43 resulting in the imposition of a term of life imprisonment. However, this argument misinterprets the sentences on Counts 1 and 2. Life sentences were statutorily required under 21 U.S.C. § 841(b)(1)(C). As discussed above, this section mandates a term of life imprisonment if the offense resulted in death and the defendant had a prior felony drug offense.

Moreover, as we have just noted, Zayas had two felony drug offenses as defined under 21 U.S.C. § 802(44). This section defines a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, mari[j]uana, anabolic steroids, or depressant or stimulant substances.”

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Zayass first conviction was in 1996 for distribution of a controlled substance within 1,000 feet of a school under N.J. Stat. Ann. § 2C:35-7. The second conviction was in 2009 for possession of a controlled dangerous substance under N.J. Stat. Ann. § 2C:35-10(a)(1). Both convictions are third-degree crimes punishable by terms of three to five years imprisonment.

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Therefore, the District Court did not err in sentencing Zayas to terms of life imprisonment for conviction on Counts 1 and 2 of the superseding indictment.

III. Conclusion

For the reasons set forth above, we will affirm the District Courts denial of relief on Zayass challenges to the sufficiency of evidence to support guilty verdicts for distribution and conspiracy to distribute a controlled substance, distribution of a controlled substance to a pregnant individual, distribution of a controlled substance resulting in death and the imposition of terms of life imprisonment. However, we will reverse the denial of his motion for judgment of acquittal on his conviction for distribution of a controlled substance or possession with the intent to distribute a controlled substance within 1,000 feet of a playground and we will remand for further proceedings consistent with this opinion. FOOTNOTES

. (Count 1).

. (Count 2).

. (Count 3).

. (Count 4).

. See 21 U.S.C. § 860(e) (defining a playground for purposes of § 860(a) as “any outdoor facility ․ intended for recreation, open to the public, and with ․ three or more separate apparatus intended for the recreation of children” (emphasis added)).

. See 21 U.S.C. § 861(f) (making it unlawful to knowingly or intentionally distribute any controlled substance to a pregnant individual).

. We have appellate jurisdiction to review the final decision of the District Court pursuant to 28 U.S.C. § 1291.

. United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009).

. United States v. Gambone, 314 F.3d 163, 169–70 (3d Cir. 2003) (quotation marks omitted).

. United States v. Bansal, 663 F.3d 634, 665 (3d Cir. 2011) (quotation marks omitted).

. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C); 18 U.S.C. § 2; Burrage v. United States, 571 U.S. 204, 210, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014) (“Because the ‘death results’ enhancement increased the minimum and maximum sentences ․ it is an element that must be submitted to the jury and found beyond a reasonable doubt.”).

. Appellant Br. at 11.

. See United States v. Barbosa, 271 F.3d 438, 458–59 (3d Cir. 2001) (holding § 841 does not require “the Government [to] prove more than the defendants knowledge that he was trafficking in a controlled substance”).

. United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001).

. SApp. at 010–013 (Exs. 3.4–3.7); App. at 540–42.

. SApp. at 015–020 (Exs. 3.9–3.14); App. at 543–47.

. Zayas admitted that he obtained the suspected heroin with Haines assistance and that Haines was with him in the car both times they went to Prices house.

. Zayas and Price agreed to “1 n a half 4 50” meaning one and half bundles (fifteen bags) of drugs for $50. SApp. at 019 (Ex. 3.13); App. at 626. The two agreed that Price would get ten bags, and five would go to Zayas as a tip for the effort. App. at 627.

. SApp. at 021 (Ex. 3.15); App. at 547.

. SApp. at 021–022 (Exs. 3.15–3.16); App at 548. A “tic” is short for ticket, which is slang terminology for a bag of heroin or drugs. App. at 649.

. App. at 633.

. See United States v. Walker, 922 F.3d 239, 244 n.2 (4th Cir. 2019), cert. granted and judgment vacated on other grounds, Walker v. United States, ––– U.S. ––––, 140 S. Ct. 474, 205 L. Ed. 2d 266 (2019) (noting that “[f]entanyl is sometimes added to heroin to increase its potency, which also increases the risk of an overdose death” (quotation marks omitted)).

. See United States v. Sumlin, 956 F.3d 879, 891–93 (6th Cir. 2020) (finding sufficient evidence to support a conviction under § 841(a)(1) based on circumstances including the temporal proximity of a drug-related text message exchange).

. SApp. at 015 (Ex. 3.9); App. at 543; see also United States v. Ross, 990 F.3d 636, 639 (8th Cir. 2021) (concluding that a drug users urgent desire to ingest drugs undermines a claim that they already had drugs in their possession).

. SApp. at 012 (Ex. 3.6); App. at 542.

. SApp. at 015–018 (Exs. 3.9–3.12); App. at 543–45.

. Suboxone is a medication designed to reduce opioid withdrawal symptoms along with the desire to use opioids. United States v. Brizuela, 962 F.3d 784, 787 (4th Cir. 2020).

. SApp. at 021–022 (Exs. 3.15–3.16); App at 548.

. SApp. at 022 (Ex. 3.16); App. at 548.

. SApp. at 010–011 (Exs. 3.4–3.5); App. at 540–41.

. See United States v. Davis, 970 F.3d 650, 658 (6th Cir. 2020) (holding it is rational for a jury to infer that the drug at issue was fentanyl, rather than heroin, based on its high potency).

. See Barbosa, 271 F.3d at 458–59 (holding that the government need not prove the defendants knowledge that he was trafficking in the precise controlled substance at issue to sustain a conviction under § 841(a)).

. Appellant Br. at 20.

. SApp. at 032 (Ex. 4.9); App. at 664.

. See United States v. Caraballo-Rodriguez, 726 F.3d 418, 432 (3d Cir. 2013) (“It is up to the jury—not the district court judge or our Court—to examine the evidence and draw inferences.”).

. See United States v. Garner, 915 F.3d 167, 169 (3d Cir. 2019) (“[W]e do not draw inferences in the defendants favor when reviewing for sufficiency of the evidence ․”).

. Caraballo-Rodriguez, 726 F.3d at 432.

. United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989).

. See United States v. Miller, 527 F.3d 54, 60 (2008) (“[W]e must uphold a jurys verdict ‘if there is substantial evidence from which a rational trier of fact could find guilt beyond a reasonable doubt.’ ” (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993))).

. United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002).

. See United States v. Bailey, 840 F.3d 99, 108 (3d Cir. 2016).

. In response to Zayass Rule 29 motion for acquittal of the conspiracy count, along with finding that the jury could convict Zayas for conspiracy with Haines, the District Court incorrectly concluded Zayas could also be found to have conspired with Price. However, “[i]t is well-settled that a simple buyer-seller relationship, without any prior or contemporaneous understanding beyond the sale agreement itself, is insufficient to establish that the buyer was a member of the sellers conspiracy.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). The government never argued Price was a co-conspirator with Zayas.

. Appellant Br. at 23.

. App. at 736–37 (emphasis added).

. 21 U.S.C. § 861(f) (emphasis added).

. Flores-Figueroa v. United States, 556 U.S. 646, 652, 129 S. Ct. 1886, 173 L. Ed. 2d 853 (2009).

. Id. at 650, 129 S.Ct. 1886.

. United States v. Tyson, 947 F.3d 139, 143 (3d Cir. 2020).

. 21 U.S.C. § 861(a)(1).

. See United States v. Frazier, 213 F.3d 409, 419 (7th Cir. 2000); United States v. Cook, 76 F.3d 596, 602 (4th Cir. 1996); United States v. Chin, 981 F.2d 1275, 1280 (D.C. Cir. 1992); United States v. Valencia-Roldan, 893 F.2d 1080, 1083 (9th Cir. 1990); United States v. Carter, 854 F.2d 1102, 1108–09 (8th Cir. 1988).

. See, e.g., Frazier, 213 F.3d at 419 (“The intent of Congress in § 861(a) was to protect juveniles indicating an intent to place the burden on the drug dealer to know who is working for him.”).

. 443 F.3d 293 (3d Cir. 2006).

. 21 U.S.C. § 860(a).

. Jackson, 443 F.3d at 299.

. Id.

. 21 U.S.C. § 860(a).

. Jackson, 443 F.3d at 299.

. 21 U.S.C. § 861(f).

. See id.

. United States v. Hodge, 321 F.3d 429, 437 (3d Cir. 2003) (“When the language of a statute is ambiguous, we look to its legislative history to deduce its purpose.”).

. See 99 Cong. Rec. 26,696–98 (1986).

. Id. at 26,698 (statement of Sen. Hawkins).

. Neder v. United States, 527 U.S. 1, 10, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).

. Id. at 9, 119 S.Ct. 1827 (emphasis in original omitted).

. See United States v. Waller, 654 F.3d 430, 434 (3d Cir. 2011) (“[R]equir[ing] reversal unless it can be ‘prove[d] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (third alteration in original) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967))).

. App. at 206.

. App. at 248.

. App. at 278.

. 21 U.S.C. § 860(a).

. Id. § 860(e)(1) (emphasis added).

. App. at 696.

. App. at 734.

. See United States v. Rojas Alvarez, 451 F.3d 320, 328 (5th Cir. 2006) (holding “the congressional definition of playground must be proven as an element of a § 860(a) offense”); United States v. Migi, 329 F.3d 1085, 1087 (9th Cir. 2003) (“The Government must prove four elements to meet the definition of a ‘playground.’ ”); United States v. Horsley, 56 F.3d 50, 51–52 (11th Cir. 1995) (affirming a conviction where the evidence was sufficient to establish that the elements of the definition of “playground” as established by Congress); United States v. Clanton, 32 F.3d 569 (6th Cir. 1994) (unpublished table decision) (“From these facts, a rational trier of fact could conclude ․ that the playgrounds in issue were open to the public ․”); United States v. Parker, 30 F.3d 542, 552–53 (4th Cir. 1994) (concluding, because Congress chose to define playground in a specific manner, proof must be adduced to each of the four-part definition in § 860(a) to sustain a jurys conviction). 74

. 78 F.3d 105, 108 (3d Cir. 1996).

. Id. at 108–09.

. See United States v. Harra, 985 F.3d 196, 211 (3d Cir. 2021) (“Once the Government chooses to charge a particular offense, it undertakes the burden to ‘convince the trier of all the essential elements of guilt.’ ” (quoting In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970))).

. Rojas Alvarez, 451 F.3d at 328 (quoting 21 U.S.C. § 860(e)(1)).

. United States v. Castro, 776 F.2d 1118, 1128 (3d Cir. 1985).

. United States v. Whitehead, 176 F.3d 1030, 1040 (8th Cir. 1999) (alternation in original) (quotation marks omitted).

. See United States v. Smith, 13 F.3d 380, 382 (10th Cir. 1993) (holding conclusory statements describing a park as a “playground” were insufficient to prove the within 1,000 feet of a playground element of § 860(a)).

. Rojas Alvarez, 451 F.3d at 328.

. United States v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008) (citing Appalachian States Low-Level Radioactive Waste Commn v. Pena, 126 F.3d 193, 197–98 (3d Cir. 1997)).

. Playground, Oxford English Online Dictionary, https://www.oed.com/view/Entry/145499?redirectedFrom=playground#eid (last visited Mar. 6, 2022).

. Playground, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/playground (last visited Mar. 6, 2022).

. See Horsley, 56 F.3d at 52 (affirming the district courts submission of whether a playground was open to the public to the jury as a factual issue “since it could not be resolved without reference to the evidence in the record”).

. See Neder, 527 U.S. at 10, 119 S.Ct. 1827.

. 21 U.S.C. § 860(a).

. Id.

. Id. § 860(e).

. App. at 428.

. 620 S.W.3d 767 (Tex. Crim. App. 2021). The Texas statute criminalizing possession within 1,000 feet of a playground, like § 860(a), requires that the playground be “open to the public.” See Tex. Health & Safety Code Ann. § 481.134(a)(3)(B).

. Curlee, 620 S.W.3d at 780–81.

. Id. at 781.

. Id.

. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (holding that the suppression of material evidence by the prosecution violates due process).

. Appellant Br. at 12–13.

. Brady, 373 U.S. at 87, 83 S.Ct. 1194; see also Fed. R. Crim. P. 16.

. Bansal, 663 F.3d at 670 (“Importantly, our ‘prejudice’ inquiry turns not on whether the defendant would have received a different verdict had the evidence been produced, but upon ‘whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ” (quoting Strickler v. Greene, 527 U.S. 263, 289–90, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999))).

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. Id.

101

. First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5220.

102

. Id. at 5220–21.

103

. 21 U.S.C. § 841(b)(1)(C).

104

. Id. § 802(44).

105

. N.J. Stat. Ann. § 2C:43-6.

McKEE, Circuit Judge.

UNITED STATES v. ZAYAS (2022)

Authorities cited

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