USA v. Richard Klemi

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6847200-1] [6847200] [15-2057]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2057
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD J. KLEMIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 11-CR-30108 — David R. Herndon, Judge.

____________________
ARGUED APRIL 7, 2016 — DECIDED JUNE 12, 2017
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Richard Klemis was in the business
of selling heroin in O’Fallon and Belleville, Illinois, two
suburban communities in the Metro East area of greater
St. Louis. His customer base included teenagers and 18- to
21-year-olds. One of his young customers overdosed on
heroin in Klemis’s driveway and nearly died; timely medical
intervention saved his life. Nineteen-year-old Tyler
McKinney was not so lucky. A regular customer and occa-

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sional driver for Klemis, McKinney fatally overdosed on
heroin supplied by Klemis.
Klemis was indicted on multiple drug charges, including
conspiracy to distribute heroin, distribution of heroin to
persons under 21, using a minor in a drug operation, and
heroin distribution resulting in serious physical injury or
death. A jury convicted him on all counts, and the judge
imposed a lengthy prison term.
Klemis’s main claim on appeal is that the prosecutor
made a number of improper and inflammatory statements
during closing argument, including a vivid rhetorical flourish assigning Klemis to the innermost circle of hell depicted
in Dante’s Inferno. This form of argumentation indeed
crossed the line, but it was not prejudicial given the quantity
and quality of the evidence against Klemis; the rest of the
prosecutor’s closing argument was well within bounds.
Klemis’s remaining claims include a challenge to the sufficiency of the evidence on the count relating to McKinney’s
death, an argument about hearsay evidence, and a complaint
about juror bias. We find no error and affirm.
I. Background
Klemis ran his drug business out of his home in O’Fallon
where he lived with his mother and teenage half-brother
Justin Lewis. Justin introduced Klemis to his high-school
friends, and Klemis began supplying them with marijuana
and eventually heroin. It was only a matter of time before
things turned tragic. In 2010 Eric Schulze went to Klemis’s
house to buy heroin and then overdosed in the driveway;
quick medical intervention saved his life. In 2011 Tyler
McKinney, age 19, fatally overdosed on heroin supplied by

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Klemis. McKinney had been one of Klemis’s most frequent
heroin customers and sometimes earned his drugs by driving Klemis from O’Fallon to St. Louis to purchase heroin for
resale.
Klemis was charged with nine federal crimes related to
heroin trafficking and his role in Schulze’s overdose and
McKinney’s death: conspiracy to distribute heroin, 21 U.S.C.
§§ 841(a)(1), 846; four counts of distribution of heroin to a
person under 21, id. § 859; use of a person under 18 years of
age in a drug operation, id. §§ 841(a)(1), 861(a)(1) and (b);
distribution of heroin resulting in death, id. § 841(a)(1),
(b)(1)(C); distribution of heroin resulting in serious physical
injury, id. § 841(a)(1), (b)(1)(C); and possession of heroin, id.
§ 844(a). The charges were tried to a jury over seven days.
The government’s evidence was abundant and powerful.
Prosecutors presented testimony and documentary evidence
from several law-enforcement officers and paramedics, as
well as medical witnesses, who testified about the facts of
Schulze’s overdose and McKinney’s death. Christopher
Gonzales, Klemis’s coconspirator, was a witness for the
prosecution and provided details about their herointrafficking activities. Among other things, Gonzales told the
jury that Klemis sometimes stayed with him at his home in
Belleville and together they sold heroin from that house. The
two often pooled their money to buy heroin, and Gonzales
also drove Klemis to St. Louis to purchase heroin from
Klemis’s supplier. Gonzales testified that he did not himself
sell heroin to teenagers. But he was aware that Klemis was
doing so and testified that he told him not to.
The government also presented testimony from many of
Klemis’s young heroin customers and their friends. These

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witnesses included Alexis J. Carmack, who was 19 years old
when Klemis sold her heroin; Corey Keys, who was 20 when
Klemis sold him heroin; and Nicholas Ramage, who was 16
when he bought heroin from Klemis. Ramage also testified
that he helped Klemis purchase heroin and watched him
prepare it for resale.
The evidence connecting Klemis to McKinney’s death
was especially strong. Seven witnesses testified that
McKinney earned his heroin by driving Klemis to St. Louis
to meet with his supplier. Eight witnesses testified that they
had seen Klemis sell heroin to McKinney or inject McKinney
with heroin or both. One of these witnesses, Alexis Carmack,
dated McKinney for a time in 2010; she testified that Klemis
injected McKinney with heroin “every time we were with
each other, so quite a few, nine or ten or more.” Nicole
Feyearbend also dated McKinney on and off during this
period. She testified that she saw Klemis inject McKinney
with heroin “four or five times” and that the last time she
saw this was the week before McKinney died. Nancy
Singleton and Garrett Libbra both testified that McKinney
told them that he needed money to pay his drug debt to
Klemis. Singleton testified that McKinney stole some jewelry
from her and told her he did it because he was “afraid
something would happen to him if he couldn’t pay [Klemis]
back.” Libbra testified that McKinney had asked him for
$400 to $500 to pay off his drug debt to Klemis.
Six witnesses testified that Klemis admitted to them that
he had supplied the heroin that killed McKinney. A textmessage conversation between McKinney and Klemis on the
day McKinney died showed that McKinney received a
package of heroin from Klemis about an hour before his

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death. The government’s case also included phone and text
logs tracing the phone calls and text messages Klemis and
McKinney exchanged to arrange the heroin transaction that
day. Finally, Dr. Christopher Long, the government’s expert
toxicologist, testified that McKinney died of a heroin overdose.
Two final points about Klemis’s trial are relevant here.
During jury selection, Juror 28 said that her brother had
wrestled with drug addiction since he was a teenager. In
response to follow-up questioning from the judge, she
explained that “[o]bviously I’d want to be sympathetic to
any family for the loss of — you know, but at the same time,
I can separate emotions.” She ultimately assured the court
that she could be fair to both sides. Juror 28 was seated on
the jury without objection.
Finally, in closing argument the prosecutor referred at
some length to Dante’s Inferno and its depiction of the inhabitants of the nine circles of hell. The prosecutor assigned
Klemis to the innermost circle reserved for the worst of the
damned. The prosecutor also told the jury that “heroin kills”
and described the witness Nancy Singleton as a “straight
citizen” and “not an addict.”
The jury convicted Klemis on all counts. The judge imposed concurrent sentences of 240 months in prison on each
of the eight felony counts and a concurrent term of
12 months on the misdemeanor possession count.
II. Discussion
Klemis raises four issues for review. First, he contends
that the parts of the prosecutor’s closing argument we’ve
described above amounted to prosecutorial misconduct in

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violation of his right to a fair trial. Second, he challenges the
sufficiency of the evidence on count 2, the distribution count
pertaining to McKinney’s death. His third argument is that
Libbra and Singleton should not have been permitted to
testify about McKinney’s statements to them about needing
money to pay Klemis for drugs. Finally, he claims that
Juror 28 was irretrievably biased and her presence on the
jury deprived him of a fair trial. Most of these claims were
forfeited; none warrants reversal.
A. Prosecutorial Misconduct
Klemis challenges three aspects of the prosecutor’s closing argument: (1) his discussion of Dante’s Inferno; (2) his
statement that “heroin kills”; and (3) his description of
Nancy Singleton as a “straight citizen” and “not an addict.”
Klemis did not object to any of these statements, so our
review is for plain error. Reversal is warranted only if we
find an obvious (i.e., “plain”) error that affected the outcome
of the trial and seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. Puckett v.
United States, 556 U.S. 129, 135 (2009); see also FED. R. CRIM.
P. 52(b). The challenged remarks cannot be plain error unless
Klemis probably would have been acquitted if the prosecutor had not made them. United States v. Della Rose, 403 F.3d
891, 906 (7th Cir. 2005).
As a general matter, a misconduct claim of this type turns
on whether the prosecutor’s remarks were both improper
and “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986). Our task is to determine
whether the remarks were improper, and if they were, to
assess whether the remarks deprived the defendant of a fair

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trial when viewed in context of the trial as a whole. United
States v. Wolfe, 701 F.3d 1206, 1211 (7th Cir. 2012). To guide
the analysis, the Supreme Court has directed us to evaluate
five factors: (1) the nature and seriousness of the alleged
misconduct; (2) whether the defense invited the prosecutor’s
statements; (3) whether the jury instructions adequately
addressed the matter; (4) whether the defense had an opportunity to respond to the improper remarks; and (5) the
weight of the evidence against the defendant. Darden,
477 U.S. at 181–82. A challenge of this kind is an uphill
battle; “improper statements during closing arguments
rarely constitute reversible error.” Wolfe, 701 F.3d at 1211.
Klemis focuses primarily on the prosecutor’s discussion
of the nine circles of hell depicted in Dante’s Inferno and his
assignment of Klemis to the innermost circle reserved for the
worst of the damned:
If dealing dope was graded the way Dante did
hell, as nine concentric circles, among all dope
dealers, where would we place Richard
Klemis? … [A]n adult who sold marijuana to
other adults would be on the outermost circle … , that might be the least serious form of
dope dealing. What would be the next circle, as
we go closer and closer to the center of evil? …
Well, how about selling heroin to adults? Now,
why would selling heroin to adults be moving
closer and closer to the center of evil? Because
heroin kills. …
Now, what could be worse than selling the
most dangerous powerful drug on earth to
other consenting adults? Could we find any-

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thing that would be worse than that? Yes. Yes,
we can. How about selling the most dangerous
drug on earth to kids? I mean, that’s just unspeakably evil and that’s what Richard Klemis
did. …
And for that, ladies and gentlemen, I think in
the nine circles I’m describing, that describe
the universe of drug dealers, Richard Klemis
goes into the first circle. … So, I have already
said that I would assign Richard Klemis to the
inner circle of evil because he sold heroin to
children.

This rhetorical device was a naked appeal to passion rather than reason and evidence and as such falls outside the
bounds of proper closing argument. Still, on this record the
improper remarks made no difference to the outcome. It’s
exceedingly improbable that Klemis would have been
acquitted had the prosecutor kept his Dante musings to
himself. See United States v. Johnson, 655 F.3d 594, 602 (7th
Cir. 2011).
The Darden factors tilt heavily in the government’s favor.
The prosecutor’s remarks were certainly improper, and they
were not invited by defense counsel, but the remaining
factors convincingly establish that the misconduct caused no
harm. The judge adequately instructed the jurors that the
arguments of counsel are not evidence, reminding them
multiple times that “[t]he evidence includes only what the
witnesses say when they are testifying under oath, the
exhibits that I allow into evidence, and any facts to which
the parties stipulate. Nothing else is evidence.” Klemis’s
counsel had ample opportunity to object or otherwise re-

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spond; his decision to let it pass without objection may well
have been strategic.
In the final analysis, “the most important of the Darden
factors is the weight of the evidence against the defendant.”
Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000). As we’ve
noted, the evidence of Klemis’s guilt was plentiful and
compelling. Multiple witnesses described Klemis’s heroin
trafficking in substantial detail. On the count relating to
McKinney’s death in particular, the government introduced
text and phone records documenting that Klemis provided
heroin to McKinney just before he fatally overdosed, and
several witnesses testified that Klemis acknowledged his
responsibility for selling McKinney the heroin that killed
him. The Inferno remarks, though improper, did not affect
the fairness of the trial.
Klemis also challenges the prosecutor’s statements that
“heroin kills” and “anytime someone uses heroin, injecting
it, their life is automatically in danger. You cannot tell what’s
in the needle; you don’t know how pure it is, how concentrated it is.” Again Klemis did not object in the district court;
he now argues that these statements amounted to improper
commentary on facts not in evidence. See United States v.
Henry, 2 F.3d 792, 795 (7th Cir. 1993) (“It is fundamental that
counsel cannot rely or comment on facts not in evidence
during closing argument.”). Not so. These statements simply
encapsulate reasonable and commonsense inferences that
arise from the uncontroverted evidence—particularly
Dr. Long’s description of how heroin affects the body. We
find no error.
Finally, Klemis attacks the prosecutor’s reference to
Nancy Singleton as “a straight citizen” and “not an addict.”

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Once again, Klemis did not object to these statements; he
now contends that they amount to improper vouching for
the witness.
We have recognized two types of improper vouching:
“[A] prosecutor may not express her personal belief in the
truthfulness of a witness, and a prosecutor may not imply
that facts not before the jury lend a witness credibility.”
Wolfe, 701 F.3d at 1212 (quotation marks omitted). But a
prosecutor may properly comment on a witness’s credibility
if “the comment reflects reasonable inferences from the
evidence adduced at trial rather than personal opinion.” Id.
(quotation marks omitted). The challenged statements are of
the latter, permissible type. According to her own unrebutted testimony, Singleton was not a drug user (in contrast to
some of the government’s other witnesses). The prosecutor’s
statements simply restated the undisputed evidence in
slightly different terms.
B. Distribution of Heroin Causing McKinney’s Death
Klemis next argues that the evidence was insufficient to
support his conviction for distributing heroin to McKinney
causing his death. The judge denied his motion for acquittal
on this count; we review that decision de novo. United States
v. Moses, 513 F.3d 727, 733 (7th Cir. 2008). But Klemis’s
argument has notably shifted on appeal. In the district court,
he maintained that the evidence didn’t establish that it was
his heroin that killed McKinney. He now argues that the
government didn’t prove that heroin caused McKinney’s
death because the medical evidence established that the
cause of death was technically acute morphine intoxication.
This argument—even if it had been adequately preserved—
is frivolous. Dr. Christopher Long, the government’s toxicol-

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ogist, and Dr. Raj Nanduri, who performed the autopsy,
both testified that heroin is an opiate that metabolizes into
morphine.
C. Confrontation Clause and Hearsay Objections
Klemis argues that Singleton and Libbra should not have
been permitted to testify about certain statements McKinney
made to them in the weeks before he died. Recall that Singleton testified that McKinney stole jewelry from her and told
her that he did so because he was “afraid something would
happen to him if he couldn’t pay [Klemis] back.” Libbra
testified that McKinney asked to borrow $400 or $500 because he owed Klemis money for drugs. Klemis claims that
this testimony was impermissible on two grounds: it was
inadmissible hearsay, and it violated his Sixth Amendment
right of confrontation.
The constitutional argument was forfeited, so again our
review is circumscribed by the plain-error standard. The
Sixth Amendment’s Confrontation Clause prohibits the
introduction of testimonial statements by a nontestifying
witness unless the witness is “unavailable to testify[] and the
defendant had had a prior opportunity for crossexamination.” Crawford v. Washington, 541 U.S. 36, 54 (2004).
In Ohio v. Clark, 135 S. Ct. 2173 (2015), the Supreme Court
clarified the scope of its ruling in Crawford: “[A] statement
cannot fall within the Confrontation Clause unless its primary purpose was testimonial. Where no such primary purpose
exists, the admissibility of a statement is the concern of state
and federal rules of evidence, not the Confrontation Clause.”
Id. at 2180 (internal quotation marks omitted). Elaborating,
the Court explained in Clark that statements made to persons
who are not law-enforcement personnel are “much less

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likely to be testimonial than statements to law enforcement
officers.” Id. at 2181. The Court instructed us to consider the
context of the challenged statements, keeping in mind that
“[s]tatements made to someone who is not principally
charged with uncovering and prosecuting criminal behavior
are significantly less likely to be testimonial than statements
given to law enforcement officers.” Id. at 2182. The key is
“whether a statement was given with the primary purpose
of creating an out-of-court substitute for trial testimony.” Id.
at 2183 (internal quotation marks omitted).
On this understanding of the Confrontation Clause right,
there was no error here, plain or otherwise. McKinney’s
statements to Singleton and Libbra reflect spontaneous
attempts to borrow or steal from friends to pay a drug debt,
not efforts to create an out-of-court substitute for trial testimony.
We see no error under the Federal Rules of Evidence either. The judge applied Rule 804(b)(3), which allows the
admission of an unavailable declarant’s statement against
his own interest if the statement is supported by “corroborating circumstances that clearly indicate its trustworthiness.” FED. R. EVID. 804(b)(3). A statement against interest
includes “one that tends to expose the declarant to criminal
liability.” Id. Klemis sought unsuccessfully to block the
admission of this testimony under Rule 803(b)(3), so this
argument was adequately preserved. We review the judge’s
ruling for abuse of discretion. United States v. Perkins,
548 F.3d 510, 513 (7th Cir. 2008).
The judge was right to admit this testimony. The three
requirements for admissibility under Rule 803(b)(3) are
easily satisfied. McKinney was obviously unavailable, and

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his statements to Libbra and Singleton—saying that he
needed to borrow or steal to pay a drug debt to Klemis—
were clearly against his penal interest. And substantial
corroborating evidence supports their trustworthiness.
Multiple witnesses testified that Klemis was McKinney’s
heroin supplier.
Klemis raises a new objection on appeal, arguing that
McKinney’s statements should have been excluded under
Rule 403 as unfairly prejudicial. As with other forfeited
arguments, “unpreserved evidentiary issues must be analyzed under a plain error standard.” United States v. RamirezFuentes, 703 F.3d 1038, 1042 (7th Cir. 2013). A forfeited
Rule 403 argument rarely results in reversal because the
defendant “must show that the evidence was so obviously
and egregiously prejudicial that the trial court should have
excluded it even without any request from the defense.”
United States v. Collins, 604 F.3d 481, 487 (7th Cir. 2010)
(internal quotation marks omitted).
Klemis has not carried his burden under this steep standard of review. He suggests that McKinney’s statements may
have created the impression that he used force to collect
drug debts or was otherwise a violent person. That’s doubtful. McKinney’s reference to being “afraid” was vague. He
told Singleton that he stole her jewelry because he was
“afraid something would happen to him if he couldn’t pay
[Klemis] back.” His statement to Libbra was limited to a
request to borrow money to pay a drug debt he owed to
Klemis; nothing was said about the consequences of nonpayment. These statements were not so obviously and
egregiously prejudicial that the judge should have excluded
them sua sponte. Moreover, as we’ve noted several times,

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the evidence of Klemis’s guilt was overwhelming. Even if it
was error to admit this testimony, it cannot plausibly be said
that Klemis “probably would have been acquitted but for the
erroneously admitted evidence.” Ramirez-Fuentes, 703 F.3d at
1042 (quotation marks omitted).
D. Juror 28
Finally, Klemis argues that he was deprived of his right
to an impartial jury because Juror 28 was biased against him
based on her brother’s struggle with drug addiction since he
was a teenager. Klemis did not move to strike Juror 28 for
cause or otherwise object, so once again our review is for
plain error only. United States v. Taylor, 777 F.3d 434, 441 (7th
Cir. 2015).
The requirement of an impartial jury is met
when “the prospective juror has given final,
unequivocal assurances, deemed credible by
the judge, that for purposes of deciding the
case, she can set aside any opinion she might
hold, relinquish her prior beliefs, or lay aside
her biases or her prejudicial personal experiences.”
Id. (quoting United States v. Allen, 605 F.3d 461, 464–65 (7th
Cir. 2010)). These conditions are satisfied here. After disclosing her brother’s addiction struggle, Juror 28 gave unequivocal assurances that she could be fair.
Klemis relies on Thompson v. Altheimer & Gray, 248 F.3d
621 (7th Cir. 2001), but that case is not analogous. There the
challenged juror was equivocal about her ability to set her
bias aside: “I can’t say that it’s not going to cloud my judgment. I can try to be as fair as I can, as I do every day.” Id. at

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624. The judge did not follow up to clarify the ambiguity in
this statement; we noted that “[h]ad the judge pushed [the
juror] and had she finally given unequivocal assurances that
he deemed credible, his ruling could not be disturbed.” Id. at
626.
In contrast, Juror 28 did not equivocate. She told the
court that she could be fair notwithstanding her brother’s
struggle with addiction. The judge accepted this assurance
and seated her without objection. “This unequivocal assurance—deemed credible by the trial judge—is sufficient.”
Taylor, 777 F.3d at 441. Klemis’s belated challenge cannot
disturb the judge’s ruling.
AFFIRMED.