USA v. Billy Shepherd

Filing

OPINION filed: AFFIRMED, decision not for publication. Danny J. Boggs, (authoring) Circuit Judge; Raymond M. Kethledge, Circuit Judge and William H. Stafford, U.S. District Judge for the Northern District of Florida. *A corrected opinion is attached; a record cite in footnote 1 has been removed.--[Edited 04/20/2016 by CL]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0215n.06
Case No. 15-5095

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY JEROME SHEPHERD,
Defendant - Appellant.

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Apr 20, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

BEFORE: BOGGS and KETHLEDGE, Circuit Judges; STAFFORD, District Judge. *
BOGGS, Circuit Judge. Billy Shepherd was convicted of possession of and conspiracy to
distribute controlled substances, which were recovered from his rectum. When Shepherd was
non-responsive and appeared unconscious after his arrest, police officers took him to an
emergency room where they relayed to the attending physician their suspicion that Shepherd had
drugs hidden in his rectum. The physician evaluated Shepherd by x-ray and CT scan without his
consent. In the circumstances of this case, those unconsented procedures cannot be attributed to
the state for Fourth Amendment purposes. Accordingly, the medical information gathered from
the examination could be used to apply for a search warrant. We affirm Shepherd’s conviction.

*

The Honorable William Henry Stafford, Jr., United States District Judge for the Northern District of Florida, sitting
by designation.

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Case No. 15-5095, United States v. Shepherd
I
In May 2013, John Dawson drove Shepherd, Shepherd’s girlfriend Amy Slone, and John
Barnett from Floyd County, Kentucky to buy drugs in Columbus, Ohio. Barnett placed an order
with Robert Haddox, his Columbus contact. Shepherd brought the funds. In Columbus, Haddox
drove Barnett and Shepherd to a trailer where Shepherd paid $1800 for about an ounce of heroin.
When they returned to Dawson’s vehicle, Shepherd rebuffed Slone’s efforts to take some of the
heroin. At another trailer, Shepherd bought about 3.5 grams of cocaine and 36 oxycodone pills.
Members of the group took drugs at the second trailer. A later toxicology report on Shepherd’s
urine returned positive for cocaine but negative for heroin or oxycodone. On the drive back,
Shepherd told Dawson to “get up with John Barnett, if [Dawson] couldn’t find [Shepherd], if
[Dawson] needed a good deal.” Things went smoothly until they crossed into Floyd County.
Unbeknownst to the others, Dawson was an informant, his vehicle was equipped with a tracking
device, and he had been in communication with the police.
Just inside Floyd County, a team of state and federal law enforcement stopped the
vehicle. A pat-down search of Shepherd uncovered drug paraphernalia, but no drugs. But
officers suspected that Shepherd had controlled substances in his rectum. Barnett and Dawson
told police that Shepherd had drugs in his “pelvic area,” and Shepherd smelled like feces.
Shepherd was arrested and placed in the back seat of a cruiser. The plan was to “dry
cell” him at the Floyd County Detention Center. 1
detention center.

That plan changed on the drive to the

Shepherd spoke incomprehensibly and “flopped over” when the cruiser

rounded a curve. Fearing that Shepherd had a bag in his rectum that contained drugs and had

1

“Dry celling” is a method of recovering drugs suspected of being hidden in an individual’s rectum. The person is
placed in a holding cell without water access or where water access has been interrupted so that police can scan
bowel movement contents.

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ruptured, the officer driving the cruiser pulled over. He could not elicit a verbal response from
Shepherd who appeared to go “in and out of consciousness.”
The officers became worried that Shepherd’s life was at risk and drove to the nearest
emergency room. They relayed their concerns to the attending physician, Dr. Andrew Mutiso,
who instructed them to bring Shepherd inside.

Mutiso listened to Shepherd’s lungs and

conducted a neurological examination. Shepherd appeared a “little dazed” but was otherwise “in
a normal state.” Officers restrained Shepherd because he was physically and verbally combative.
After the physical examination, Mutiso evaluated Shepherd by x-ray to “ascertain . . . what was
going on.” It showed an “abnormal density superimposed in the lower pelvis, [which] may
represent foreign material in the rectum.”

Mutiso next tried to conduct a digital rectal

examination but Shepherd refused consent. So Mutiso decided to evaluate him by CT scan,
which confirmed “a foreign body in the rectum . . . with [the] hyper-density, [and] appearance of
multiple capsules.” Mutiso again tried to perform a digital rectal examination because the
capsules “could pose a danger to [Shepherd] if they busted.” Shepherd refused consent.
At this point, Mutiso determined, as he testified at a suppression hearing, that the
“emergency . . . had elapsed.” He informed the officers that they had two options: (1) Wait for
Shepherd to excrete the substance by passing a bowel movement, which presented the risk of
injury or death if it ruptured and absorbed into his system; or (2) obtain a warrant to sedate him
and remove it. Mutiso believed that the latter was a better option to “assure that [Shepherd] was
safe and that he would not suffer any danger.”
Police obtained a search warrant from the Floyd County District Court based on:
Shepherd smelling of feces; an anonymous tip that Shepherd was transporting illegal drugs; the
officer’s knowledge of and experience with drug smuggling through body cavities; and Mutiso’s

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examination.

Mutiso then sedated Shepherd.

He removed from Shepherd’s rectum a bag

containing 21.99 grams of heroin, 36 oxycodone pills, and 1.045 grams of crack cocaine.
A grand jury charged Shepherd with conspiracy to distribute controlled substances,
21 U.S.C. § 846, and possession with intent to distribute controlled substances, 21 U.S.C.
§ 841(a)(1). Shepherd moved to suppress evidence obtained from the search of his rectum. He
alleged, inter alia, that Mutiso’s pre-warrant evaluation by x-ray and CT scan violated his Fourth
Amendment rights.

At a suppression hearing, Mutiso testified that the officers had not

influenced his examination and that he “was the one examining [Shepherd] and deciding what to
do.” A magistrate judge recommended finding that Mutiso was not a government agent for
Fourth Amendment purposes. The district court adopted that conclusion and denied the motion.
Shepherd’s case proceeded to a jury trial. In his defense, Shepherd argued that he was a
heroin addict hiding in the mountains because of outstanding warrants.

To avoid police

detection, Shepherd testified, he purchased illegal drugs for personal use only in the largest
quantity that he could afford “so [he] didn’t have to come back out of the hills to go get more.”
The jury convicted Shepherd on the conspiracy count, acquitted him of possession with intent to
distribute, but convicted him on the lesser charge of possession of a controlled substance,
21 U.S.C. § 844. The district court sentenced Shepherd to 320 months of imprisonment.
On appeal, Shepherd challenges the district court’s ruling on his suppression motion, the
sufficiency of the evidence to sustain the conspiracy conviction, and the inconsistency of the
jury’s verdict.
II
In assessing a trial court’s ruling on a motion to suppress, we review its factual findings
for clear error and its legal determinations de novo. United States v. Levenderis, 806 F.3d 390,

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399 (6th Cir. 2015).

Shepherd argues that Mutiso acted as a government agent when he

evaluated Shepherd by x-ray and CT scan. As explained below, we agree with the district court
that Mutiso was not acting as a government agent.
The Supreme Court has “consistently construed” the Fourth Amendment’s protection
against unreasonable searches “as proscribing only governmental action.” United States v.
Jacobsen, 466 U.S. 109, 113 (1984). It can apply to private individuals, but only when they act
as government “agent[s]” or with a government official’s “participation or knowledge.” Ibid.
(quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Later
cases have emphasized that a private party’s search is attributable to the government only “if the
private party acted as an instrument or agent of the Government.”

Skinner v. Ry. Labor

Executives’ Ass’n, 489 U.S. 602, 614 (1989); see, e.g., United States v. Clutter, 914 F.2d 775,
778 (6th Cir. 1990). That “necessarily turns on the degree of the Government’s participation in
the private party’s activities.” Skinner, 489 U.S. at 614. In the context of a search, the defendant
must demonstrate two facts: (1) Law enforcement “instigated, encouraged or participated in the
search” and (2) the individual “engaged in the search with the intent of assisting the police in
their investigative efforts.” United States v. Hardin, 539 F.3d 404, 419 (6th Cir. 2008) (quoting
United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985)).
Shepherd rests his argument on similarities between his case and United States v.
Booker, 728 F.3d 535 (6th Cir. 2013). Given the fact-specific nature of Fourth Amendment
analysis, Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013), we summarize the salient events of
Booker here. After an arrest, police grew suspicious that Booker was hiding drugs in his rectum.
He tried to reach into the back of his pants several times and was uncooperative when an officer
detected an object during a strip search. 728 F.3d at 537–38. Even though Booker displayed no

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physical symptoms, he was transferred from a detention facility to a medical center. Id. at 538.
Before arriving, an officer relayed to the attending emergency-room physician his suspicion that
Booker had drugs in his rectum. Ibid. Booker’s evaluation was the third time in three years that
the department had brought a suspect to this physician to perform a digital rectal examination.
Ibid. At the hospital, Booker displayed normal vital signs and denied the allegation. Id. at 539.
The physician explained to Booker his duty to remove the drugs if the officers’ suspicion proved
correct. Ibid. Booker refused consent for the examination and the physician’s first attempt to
perform it was unsuccessful. Ibid. So Booker was injected with muscle relaxants and, later, a
sedative and a paralytic agent. While Booker was unconscious, intubated, and paralyzed, the
physician removed a five-gram rock of crack cocaine from his rectum. Ibid.
The physician, we held, was used “as a tool to perform a search.” Id. at 543. His conduct
was attributable to the state because the police had physical control of Booker, knew what the
doctor was going to do, and knew that Booker did not consent. Id. at 541. No reasonable officer
could have believed that the search—paralyzing, intubating, and performing a digital rectal
examination over a competent patient’s clear refusal to consent—would have occurred without
police direction. Id. at 542.
At first blush, the facts of Booker seem analogous to those here. Both cases involve an
individual in police custody transported to a hospital where an emergency-room physician
performed invasive medical procedures. Yet important differences between the cases require us
to reach the opposite conclusion. On the “unusual” facts of Booker, the officers encouraged the
physician’s actions. Id. at 545. The defendant displayed no physical symptoms but was taken to
the hospital to instigate a search; absent police direction, the physician’s conduct would have

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been tortious; and the officers “knew” what the physician would do, in part because the
department had sought his assistance with the same procedure twice before. Id. at 541.
By contrast, police here responded to what they perceived as a medical emergency, which
weighs against a finding that they acted in a premeditated way to instigate or encourage the
search. Circumstantial evidence (the smell of feces, his co-conspirators’ statements, recovered
drug paraphernalia) reasonably made the arresting officers suspicious that drugs were hidden in
Shepherd’s rectum. This became a safety concern on the drive to the detention center. Shepherd
was nonresponsive, “flopped over” when the cruiser rounded a curve, and then lay semiconscious in the back seat. Police brought him to the nearest hospital—not one handpicked for a
physician experienced in aiding officers with digital rectal examinations. Shepherd presents no
evidence that the officers gave false information about his medical condition or “knew” what
Mutiso would do. (Both factors that could contribute to a showing that the state instigated or
encouraged a body search.) Cf. George v. Edholm, 752 F.3d 1206, 1215 (9th Cir. 2014); Booker,
728 F.3d at 541. Consistent with the duty to provide medical care to an individual in police
custody, Estelle v. Gamble, 429 U.S. 97, 104 (1976), the officers explained to the physician their
theory of Shepherd’s condition. Mutiso testified at the suppression hearing that the officers did
not influence his decision to evaluate Shepherd by x-ray and CT scan. Their rational response to
a medical emergency bears no indicia of the calculation present in Booker.
Nor did Mutiso’s actions indicate any illegitimate motive on his part. In Booker, the
failure to provide the arrestee the option of using a toilet to resolve the medical emergency
“showed that [the physician] was acting at least in part to ensure retrieval of the hidden drugs.”
728 F.3d at 545. Here, after Mutiso conducted the x-ray and CT scan searches (which were
indicated in his medical judgment) and determined that the emergency had elapsed, Shepherd

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refused a digital examination. Mutiso did not proceed. Instead, he advised the officers that
unless they obtained a warrant, he would not provide additional treatment except if another
emergency arose.
Whereas the actions of the physician in Booker guaranteed the drugs’ retrieval, Mutiso’s
x-ray and CT scan did not. At each point in Shepherd’s treatment, the medical staff did no more
than what was necessary to ascertain whether the medical emergency had elapsed. Cf. United
States v. Chukwubike, 956 F.2d 209, 212 (9th Cir. 1992). Mutiso honored Shepherd’s refusal of
consent and made clear that he would proceed only in the face of another medical emergency, or
a warrant. Those decisions demonstrate that Mutiso acted in pursuit of Shepherd’s medical wellbeing rather than to help the police retrieve the drugs.
As the district court astutely noted, Mutiso’s conduct assisted the officers in their
affirmative duty to safeguard individuals in their control. See Davis v. Brady, 143 F.3d 1021,
1024 (6th Cir. 1998) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
200 (1989)). The Fourth Amendment protection against unreasonable searches does not always
trump the state’s constitutional duty to protect those whom it restrains.

In every medical

emergency involving an individual whose liberty the state has limited, “antecedent contact”
between the government and medical staff is inevitable. Lambert, 771 F.2d at 89. The pertinent
question in that context is whether the contact arises in an effort to aid law enforcement in their
duty to provide medical care, rather than to advance a search. Contact between Mutiso and the
officers arose in service of that duty alone.
Shepherd’s pre-warrant medical evaluation, which ended after the physician determined
that his condition was not life-threatening, did not constitute a Fourth Amendment search. We
therefore do not consider the Government’s alternative arguments. It bears emphasis, however,

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that neither an x-ray nor a CT scan is as invasive as the forced paralysis, intubation, and digital
rectal examination at issue in Booker, or the stomach pumping to which the Booker court
analogized. See 728 F.3d at 545 (citing Rochin v. California, 342 U.S. 165 (1952)). In fact,
when assessing the reasonableness of body-search techniques conducted by physicians acting as
government agents, we have considered the availability of medical imaging as a less intrusive
alternative. See id. at 547; see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 45 (1st Cir. 2009).
III
Shepherd also argues that the jury was presented with insufficient evidence to find him
guilty of participating in a conspiracy to distribute controlled substances. In doing so, he
shoulders a heavy burden. See United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999).
We review his claim de novo and reverse “only if the judgment is not supported by substantial
and competent evidence upon the record as a whole.” United States v. Campbell, 549 F.3d 364,
374 (6th Cir. 2008).
This requires us to “examine the evidence in the light most favorable to the prosecution
to determine whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Ibid. As such, we make all reasonable inferences and
resolve credibility issues in favor of the jury’s verdict. United States v. Wade, 318 F.3d 698, 701
(6th Cir. 2003). Circumstantial evidence receives the same weight as direct evidence and may be
sufficient alone to sustain a conviction. See United States v. Jackson, 622 F. App’x 526, 527
(6th Cir. 2015) (quoting United States v. Wettstain, 618 F.3d 577, 587 (6th Cir. 2010), and
United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993)). Circumstantial evidence “need not
remove every reasonable hypothesis except that of guilt,” United States v. Vannerson, 786 F.2d

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221, 225 (6th Cir. 1986), but should not “require[] a leap of faith in order to support a
conviction,” United States v. White, 932 F.2d 588, 590 (6th Cir. 1991) (per curiam).
“To prove a conspiracy under 21 U.S.C. § 846, the government [must] prove, beyond a
reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join the
conspiracy, and (3) participation in the conspiracy.’” United States v. Pritchett, 749 F.3d 417,
431 (6th Cir. 2014) (quoting United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999)).
Shepherd was convicted of conspiring to violate 21 U.S.C. § 841(a), which proscribes the
knowing or intentional distribution of a controlled substance. His conviction was based on
insufficient evidence, Shepherd argues, because his is the “most reasonable” theory of the case.
According to that theory, Shepherd was an addict living on the lam who purchased illegal drugs
for personal use only, but did so in bulk to decrease the chance of police detection.
The Government presented sufficient circumstantial evidence for a rational trier of fact to
find Shepherd guilty on the conspiracy count. Shepherd and three others drove from Floyd
County to Columbus where they purchased heroin, crack cocaine, and oxycodone. Shepherd
provided cash for the transaction and concealed the drugs in his rectum when law enforcement
stopped the vehicle. On the drive back, Shepherd offered Dawson a “good deal” on heroin.
Shepherd’s toxicology report was negative for heroin or oxycodone. He did not allow Stone to
use the heroin. Contrary to Shepherd’s assertion, that evidence does not also need to exclude
every other reasonable hypothesis. See, e.g., United States v. Mack, 808 F.3d 1074, 1080 (6th
Cir. 2015). Based on this substantial circumstantial evidence, a rational trier of fact could have
concluded that Shepherd knowingly participated in an agreement to distribute controlled
substances.

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IV
“[I]nconsistent jury verdicts may be enforced.” Bradshaw v. Stumpf, 545 U.S. 175, 189
(2005) (Souter, J., concurring); see also United States v. Clemmer, 918 F.2d 570, 573 (6th Cir.
1990). They are not usually reviewable on appeal. United States v. Lawrence, 555 F.3d 254,
262 (6th Cir. 2009). To the extent that a criminal defendant contests the rationality of the jury’s
verdict, the appropriate vehicle is a sufficiency-of-the-evidence claim. United States v. Powell,
469 U.S. 57, 66 (1984). Shepherd brought such a challenge, and we were unconvinced. See
supra Part III.
Shepherd contends that the jury behaved irrationally by convicting him of conspiracy and
acquitting him of possession with intent to distribute. His argument simply speculates that the
alleged inconsistency was the product of “some error that worked against [hi]m” rather than the
exercise of lenity. Powell, 469 U.S. at 66. “Courts properly avoid such explorations into the
jury’s sovereign space.” Yeager v. United States, 557 U.S. 110, 122 (2009). Assuming arguendo
that the jury’s verdict was inconsistent, the evidence was nonetheless sufficient to sustain his
conspiracy conviction. It cannot be said that his conspiracy conviction was erroneous and that
the jury showed its true colors only when it acquitted him on the count of possession with intent
to distribute. Defendants are “given the benefit of [an] acquittal on the counts on which [they
are] acquitted, and it is neither irrational nor illogical to require [them] to accept the burden of
conviction on the counts on which the jury convicted.” Powell, 469 U.S. at 69. We therefore
reject his claim.
V
Shepherd has not shown that the physician’s actions amounted to a government search.
Nor has he shown that the jury was presented with insufficient evidence to convict him of

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conspiracy to distribute controlled substances. We therefore AFFIRM the district court’s denial
of Shepherd’s suppression motion and AFFIRM its judgment.

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