United States v. Hardy.
No. 24-8006. 8/12/2025. D.Wyo. Judge Matheson. Conspiracy to Distribute Fentanyl—Admissibility of Coconspirator Statements—Defendant’s Presence at Hearing on Admissibility of Evidence—Fed. R. Evid. 404(b)—Calculation of Sentence Under US Sentencing Guidelines—Reliance on Hearsay Statements at Sentencing.
August 12, 2025
Ascherin was arrested in 2022 after police found drug paraphernalia and 23.87 grams of suspected fentanyl pills on his person and in his car. While investigating Ascherin, a task force officer with the Drug Enforcement Administration suspected that Hardy was supplying Ascherin with fentanyl. The officer obtained a search warrant to inspect Hardy’s Facebook profile, where he found messages between Hardy and others about the availability, price, quantity, and logistics of obtaining fentanyl. Subsequently, in 2023, officers responded to a call about suspected drug use in a vehicle and found Hardy in the front passenger seat with nine fentanyl pills on and around his seat. They arrested him on an active arrest warrant. Hardy was indicted on one count of conspiracy to distribute at least 40 grams of fentanyl (400 pills) between July 1, 2022, and December 29, 2022. Hardy moved for a hearing under United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc)), and a pretrial ruling on the admissibility of alleged coconspirator statements. The district court held a James hearing, at which Hardy was present, but asked the government for additional arguments regarding the foundation and authentication for the Facebook messages. The government submitted its motion, to which Hardy filed an opposition. The district court then held an in-chambers conference without Hardy and ruled for the government. A jury convicted Hardy as charged. At sentencing, the district court found that Hardy was responsible for 1,773 grams of fentanyl, and it imposed a 168-month sentence. The court overruled Hardy’s objection that the drug quantity calculation was based in part on unreliable hearsay.
On appeal, Hardy argued that the district court erred during the in-chambers conference by making an evidentiary ruling in his absence on the admissibility of coconspirator statements and thus violated his due process right to be present. A defendant’s presence is a condition of due process only to the extent that the defendant’s presence is necessary for a fair hearing, and that right does not extend to proceedings on purely legal issues. Here, Hardy did not request to be at the conference and defense counsel did not object to his absence, and the district court held the conference solely to state its legal rulings. Further, there is no indication that his presence at the hearing would have been useful to ensure a more reliable determination on the admissibility of the Facebook messages. Accordingly, Hardy’s absence at the conference did not violate due process.
Hardy also contended that the district court erred by admitting evidence under Fed. R. Evid. 404(b) that that he possessed user amounts of fentanyl when he was arrested because the court did not specifically identify the purpose for its admission and there was no permissible reason to admit the evidence. Even assuming a plain error, Hardy failed to show that it affected his substantial rights because there was substantial evidence of conspiracy to distribute at least 40 grams of fentanyl, and Hardy admitted at trial that he was a fentanyl user and addicted to the drug. Further, the district court gave the jury a limiting instruction that Hardy was not on trial for his 2023 fentanyl possession. There is thus no reasonable probability that admission of Hardy’s fentanyl possession of nine pills four and a half months after the charged conspiracy affected the jury’s guilty verdict.
Hardy further asserted that the district court erred in sentencing him by relying on uncorroborated hearsay to calculate the drug quantity attributable to him under the US Sentencing Guidelines (USSG). Specifically, Hardy maintained that the confidential source’s (CS) hearsay statements that Hardy distributed 100 fentanyl pills every three days to the CS for an entire year (1,210 grams/12,100 pills) were unreliable and that the Facebook messages were unproven. Here, the presentence report (PSR) calculated the total fentanyl quantity attributable to Hardy as 1,773 grams based on interviews, messages, and testimony by fentanyl purchasers, and an interview with a CS accounted for 1,210 grams. But the CS’s statements about distribution were about the period between January and June 2022 and thus lack factual support in the record; the CS could not have received fentanyl pills from Hardy during October 2021 to January 2022, as the CS claimed, because the record shows that Hardy was in custody then; and the Facebook messages between the CS and Hardy that allegedly supported the 1,210 grams were not identified. Further, the PSR’s reference to investigators’ assertion that the CS had previously provided reliable information was not sufficient corroboration. Therefore, the record contradicts the CS’s hearsay statements, and the district court’s reliance on those statements to add 1,210 grams to Hardy’s drug quantity was clearly erroneous.
The conviction was affirmed, the sentence was vacated, and the case was remanded for resentencing.