United States v. Delante Lunn ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0464n.06
No. 18-3568
FILED
UNITED STATES COURT OF APPEALS Sep 04, 2019
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
DELANTE L. LUNN, ) OPINION
)
Defendant-Appellant. )
BEFORE: NORRIS, CLAY, and SUTTON, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. A jury convicted defendant Delante Lunn of selling
a mixture of heroin and fentanyl to Shanee Dowler who died of an overdose not long after making
the purchase. Her death eventually led to the return of an indictment charging defendant with two
counts of drug trafficking, 21 U.S.C. § 841(a)(1), and three counts of using a “communication
facility” in furtherance of that trafficking, 21 U.S.C. § 843(b). The trafficking count that involved
Ms. Dowler included an enhanced penalty provision requiring the jury to find beyond a reasonable
doubt that the drugs she received from defendant “resulted in” her death. 21 U.S.C. § 841(b)(1)(C).
Prior to trial defendant pleaded guilty to one count of drug trafficking and one count of
using a communication device. These charges stemmed from a controlled purchase of heroin from
defendant by a confidential informant as part of the subsequent investigation into Ms. Dowler’s
death.
United States v. Lunn
No. 18-3568
On appeal, defendant focuses on the trafficking count that involved Ms. Dowler (Count 1),
which carried a mandatory minimum sentence of twenty years’ imprisonment because of the
sentencing enhancement. Specifically, he raises five assignments of error: 1) whether the district
court improperly instructed the jury with respect to the penalty enhancement included in Count 1;
2) whether constitutionally sufficient evidence supported a guilty verdict with respect to that
enhancement; 3) whether the district court erred when it permitted the introduction of evidence
related to the controlled purchase of heroin from defendant by a confidential informant even
though defendant had already pleaded guilty to that charge; 4) whether the district court erred by
allowing testimony from a former heroin addict about the defendant; and 5) whether trial counsel
rendered ineffective assistance by failing to obtain the services of a qualified expert to testify about
the cause of Ms. Dowler’s death.
I.
In his opening statement, government counsel characterized Ms. Dowler’s death as
“another statistic in an epidemic that has taken over Northeast Ohio.” The testimony at trial
supports that assessment; although tragic, Dowler’s death fits a familiar pattern. At the time of her
overdose, she was a 25 year-old recovering heroin addict who was attending an outpatient
treatment program after a heroin overdose in July 2015. In January 2016, she moved into a home
with Roma Black and her companion, Thomas Ellick, as well as Black’s adult daughter and son.
According to Black, she thought of Dowler as a daughter.
Despite her progress in recovery, Dowler’s path had not been slip-free. In February, a
month after moving in with Black, Dowler admitted that “she was doing Xanax.” Black warned
her, “You know, that leads up to other things for you and you need to be clean from that in this
house.” Dowler promised that she “wouldn’t do it anymore” and Black believed her.
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Despite this assurance, on the evening of Wednesday, February 17, Dowler told Black that
she was going to see a friend named Gus, a name used by defendant. When Black entered the
kitchen the next morning, she encountered Dowler who was “extremely out of it” and drinking a
beer. Dowler admitted being drunk and that she had taken Xanax. When Black scolded her, Dowler
replied, “I’m sorry Ma, I won’t do it again.”
Later that day Dowler arranged for her step-sister, Brianna Roberston, to pick her up.
Although she told the others in the house that the pair were going to a substance abuse meeting,
they were back in less than an hour. Both Black and her daughter, Heather Nelson, who also lived
in the home, testified that they knew Dowler had not attended a meeting because she was home
too quickly.
Where did Dowler and Robertson go instead of to a meeting? At trial Robertson testified
that she had talked to Dowler on the phone around nine that morning. Dowler mentioned that she
had recently met a man named Gus at a bar. By comparing Facebook friends, they eventually
realized that they both knew Robertson. According to Robertson’s trial testimony, Dowler told her
that she and Gus had spent the night at his house. He “got her high and they had sexual relations.”
According to Robertson, this was “the first time I heard that [Dowler] was using drugs
again.” Dowler asked Robertson to give her a ride that afternoon to purchase Xanax. Robertson
agreed and took her teenage cousin with her. They picked Dowler up who instructed Robertson to
drive to Gus’s house. On their way, Dowler asked Robertson to send Gus a message asking him
for the “same thing” that he had given her the night before. Robertson recalled that Dowler “also
snorted a Xanax off of a CD case in my back seat” during the drive.
When they arrived, Gus was sitting in his car. Dowler joined him in the front seat. After
three or four minutes, she returned to Robertson’s car. According to Robertson, “She asked me to
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turn on the light so she could see what she was doing. And when I did that, that’s when I seen what
she had. And it was what I assumed to be heroin at the time.” Robertson then drove Dowler home.
According to Heather Nelson, Dowler “seemed fine” when she first returned but began to
act “really funny” around midnight. Nelson helped her into bed at 2 a.m. The next morning Nelson
saw her again; Dowler was in the kitchen looking for some missing money. Nelson’s brother,
Bobby, who also lived in the house, “told her to take her drunk butt to bed.” Later that morning
Black discovered Dowler in her bed unresponsive. She called 911 but EMS arrived too late to
revive her.
During a search of the bedroom the police found a “torn-off corner of a plastic baggie”
near Dowler’s body. According to Sergeant Vincent Ligas of the Elyria, Ohio police force, it
contained a mixture of heroin and fentanyl. Other drugs, including two more Xanax pills and
heroin, were found in Dowler’s bedroom. The results of the forensic toxicology tests and blood
samples taken from Dowler after her death will be discussed in conjunction with the arguments
concerning causation. Suffice it to say here that even defendant’s witness, pharmacist Robert
Bello, conceded at trial that Dowler could have died from a mixed drug overdose.
As mentioned earlier, defendant pleaded guilty to one count of narcotics trafficking, 21
U.S.C. § 841(a)(1), and one count of using a communication device in furtherance of that
trafficking, 21 U.S.C. § 843(b), prior to trial. He proceeded to trial on the remaining counts. A jury
returned a guilty verdict on the second trafficking count, which included the penalty enhancement,
as well as a second § 843(b) charge. The government dismissed the third § 843(b) count.
The district court sentenced defendant to 300 months of incarceration to be followed by
three years of supervised release. This appeal followed.
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II.
We now turn to the assignments of error raised by defendant.
1: Contested Jury Instruction
The Statute
The sentencing enhancement at the heart of defendant’s appeal provides that when
someone sells specified illegal drugs to a person and “death or serious bodily injury results from
the use of such substance,” then the offender “shall be sentenced to a term of imprisonment of not
less than twenty years or more than life.” 21 U.S.C. § 841(b)(1)(C).
Standard of Review
We review challenges to jury instructions for an abuse of discretion. United States v.
Mitchell, 681 F.3d 867, 876 (6th Cir. 2012) (citation omitted). Where, as here, counsel objects to
the trial court’s rejection of a proposed instruction, an abuse of discretion occurs when “(1) the
proposed instruction is substantially correct; (2) the proposed instruction is not substantially
covered by other delivered charges; and (3) the failure to give the instruction impaired the
defendant’s theory of the case.” United States v. Henderson, 626 F.3d 326, 342 (6th Cir. 2010)
(quoting United States v. Triana, 468 F.3d 308, 315 (6th Cir. 2006)).
The Instruction
The district court instructed the jury as follows:
In order for you to find for the Government on this question, the
Government must prove the additional element that the Defendant’s conduct
resulted in death. In order to establish that the drugs distributed by the Defendant
resulted in a death of the victim, the Government must prove that the victim died
as a consequence of her use of the drugs that the Defendant distributed on or around
the dates alleged in the indictment.
This means that the Government must prove beyond a reasonable doubt
that, but for the use of the drugs that the Defendant distributed, the victim would
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not have died. But-for causation exists where the use of the controlled substance
combines with other factors to produce death. And death would not have occurred
without the incremental effect of the controlled substance.
The Government is not required to prove that the—that the Defendant
intended to cause the death of the victim. Or that her death was foreseeable by the
Defendant or by others.
Again, you must be convinced that the Government has proved this
additional element beyond a reasonable doubt in order to find that the death resulted
from the use of heroin and fentanyl distributed by the Defendant. If you are
convinced that the Government has proved this, say so by answering yes to the
related question on the verdict form. If you have a reasonable doubt about this
element, then you must answer no to the related question on the verdict form.
Defense counsel objected to the “but-for” language of the instruction.
The jury form with respect to the enhancement read as follows:
Question 1(a): With respect to Count 1, do you unanimously find that the
government proved beyond a reasonable doubt that death resulted from the use of
heroin and fentanyl distributed by the Defendant, Delante L. Lunn?
Arguments of the Parties
The parties agree that the key case governing the resolution of this issue is Burrage v.
United States, 571 U.S. 204 (2014). In Burrage the deceased overdosed on a combination of drugs,
including one gram of heroin purchased from the defendant, Marcus Burrage. Two medical experts
testified at trial. One of them, a forensic toxicologist, determined that multiple drugs were present
in the deceased’s system at the time of death. Id. at 207. However, he could not say whether the
deceased “would have lived had he not taken the heroin.” Id. The other medical expert came to a
similar conclusion and “could not say whether [the deceased] would have lived had he not taken
the heroin, but observed that [his] death would have been very less likely.” Id. (quotation omitted).
The trial court instructed the jury that the government must prove “that the heroin distributed by
the Defendant was a contributing cause of . . . death.” Id. at 208.
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After noting that the sentencing enhancement at issue represented an element that must be
submitted to a jury and found beyond a reasonable doubt, the Court narrowed the issue to “whether
the use of heroin was the actual cause of [the decedent’s] death in the sense that § 841(b)(1)(C)
requires.” Id. at 210. The Court then offered the following analysis:
The law has long considered causation a hybrid concept, consisting of two
constituent parts: actual cause and legal cause. H. Hart & A. Honore, Causation in
the Law 104 (1959). When a crime requires “not merely conduct but also a specified
result of conduct,” a defendant generally may not be convicted unless his conduct
is “both (1) the actual cause, and (2) the ‘legal’ cause (often called the ‘proximate
cause’) of the result.” 1 W. LaFave, Substantive Criminal Law § 6.4(a), pp. 464–
466 (2d ed. 2003) (hereinafter LaFave); see also ALI, Model Penal Code § 2.03, p.
25 (1985). Those two categories roughly coincide with the two questions on which
we granted certiorari. We find it necessary to decide only the first: whether the use
of heroin was the actual cause of . . . death in the sense that § 841(b)(1)(C) requires.
....
“[W]here A shoots B, who is hit and dies, we can say that A [actually] caused B’s
death, since but for A’s conduct B would not have died.” LaFave 467–468 (italics
omitted). The same conclusion follows if the predicate act combines with other
factors to produce the result, so long as the other factors alone would not have done
so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is
administered to a man debilitated by multiple diseases, it is a but-for cause of his
death even if those diseases played a part in his demise, so long as, without the
incremental effect of the poison, he would have lived.
This but-for requirement is part of the common understanding of cause.
Consider a baseball game in which the visiting team’s leadoff batter hits a home
run in the top of the first inning. If the visiting team goes on to win by a score of
1 to 0, every person competent in the English language and familiar with the
American pastime would agree that the victory resulted from the home run. This is
so because it is natural to say that one event is the outcome or consequence of
another when the former would not have occurred but for the latter. It is beside the
point that the victory also resulted from a host of other necessary causes, such as
skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the
league’s decision to schedule the game. By contrast, it makes little sense to say that
an event resulted from or was the outcome of some earlier action if the action
merely played a nonessential contributing role in producing the event. If the visiting
team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in
the sports page that the victory resulted from the leadoff batter’s early, non-
dispositive home run.
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Where there is no textual or contextual indication to the contrary, courts
regularly read phrases like “results from” to require but-for causality.
Burrage, 571 U.S. at 210-12 (citations omitted).
After examining the text of the enhancement, the Court reached the following conclusion:
We hold that, at least where use of the drug distributed by the defendant is
not an independently sufficient cause of the victim’s death or serious bodily injury,
a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C) unless such use is a but-for cause of the death or injury.
Id. at 218.
As already mentioned, defense counsel below lodged an objection based upon the court’s
inclusion of “but-for” language in the instruction, which is precisely what the Court approved in
Burrage. On appeal, counsel concedes that the Court endorsed a “but-for” analysis in Burrage,
and instead focuses on the fact that the instruction in question included this language:
But for causation exists where the use of the controlled substance combines with
other factors to produce death. And death would not have occurred without the
incremental effect of the controlled substance.
Counsel directs us to United States v. Volkman, a case that this court decided on remand in light
of Burrage. 797 F.3d 377 (6th Cir. 2015). Although we affirmed the application of the
enhancement, counsel argues that Volkman stands for the proposition that the court’s “without the
incremental effect” language in the jury instruction was misleading because it was not included in
the Volkman instruction. Id. at 392-93. However, in affirming the sentencing enhancement, we
reasoned as follows:
[B]ut-for causation exists where a particular controlled substance—here,
oxycodone—“combines with other factors”—here, inter alia, diazepam and
alprazolmam—to result in death. Burrage, 134 S. Ct. at 888. The Government
presented sufficient oxycodone-specific evidence for a rational jury to find that,
“without the incremental effect” of the oxycodone, [the victim] would not have
died. Id.
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Id. at 395. Despite defendant’s reliance upon it, Volkman is clearly unhelpful to her position.
Another case relied upon by counsel is equally unpersuasive. United States v. Smith, 656 F.App’x
70, 74 (6th Cir. 2016) (citing without the “incremental effect” language of Volkman).
As the language from the cases cited above makes clear, the jury instruction as given passes
muster. The incremental effect language is simply another way of saying that the distributed drug
“was the straw that broke the camel’s back,” resulting in death. Burrage, 571 U.S. at 211.
2: Sufficiency of the Evidence
Defendant also contends that the evidence produced by the government at trial was
insufficient to support the jury’s verdict beyond a reasonable doubt with respect to the sentencing
enhancement. When faced with this contention, we ask “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Dr. Frank Miller, the Chief Deputy Coroner of Lorain County requested a Drug Abuse
Panel. It indicated that Ms. Dowler had benzodiazepines, in this case Alprazolam or Xanax, in her
system. Fentanyl was also detected at a 3.3 nanogram per milliliter level, which Dr. Miller testified
“is known to be a lethal dose.” He summarized his verdict as to the cause of death as “a mixed
drug overdose, including heroin fentanyl and benzodiazepines. Other significant conditions
included a history of substance abuse.” His direct testimony concluded with this exchange:
Q. What is your opinion as to why Shanee Dowler passed?
A. That she died from acute intoxication by the combined effects of fentanyl
heroin and Alprazolam. And as I said before, it’s heroin because she has six-
monoacetylmorphine. The drugs next to her [nightstand] are heroin and fentanyl,
and that is what’s in her blood as well. And so that was my opinion, that she died
of a drug overdose, and those are the drugs that—
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Q. Are the consumption of the drugs next to her on that counter, that heroin
and fentanyl, the reason that Shanee Dowler died?
A. Yes.
Dr. Miller went on to state that “fentanyl alone could have caused her death based on the testing.”
For him, fentanyl was the “lead suspect.”
Despite this testimony, defense counsel argues that the government failed to produce
sufficient evidence of but-for causation because Dowler died due to a combination of Alprazolam,
heroin, and fentanyl. In short, “[t]he alleged fentanyl and heroin in her system was not each
independently sufficient to cause Dowler’s death.” Brief at 36. She quotes the holding of Burrage:
[W]here use of the drug distributed by the defendant is not an independently
sufficient cause of the victim’s death or serious bodily injury, a defendant cannot
be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)
unless such use is a but-for cause of the death or injury.
Burrage, at 218-19 (emphasis added). In her brief, counsel fails to address adequately the italicized
language, which goes to the “straw that broke the camel’s back” logic of Burrage. Id. at 211. Here,
Dr. Miller testified that, while the Alprazolam ingested by Dowler would not have been fatal, when
combined with the heroin and fentanyl allegedly supplied by defendant, it was. Thus, the drugs
that the jury convicted defendant of distributing were a but-for cause of death, and the jury had
sufficient evidence to find beyond a reasonable doubt that the sentencing enhancement was
warranted.
3: Introduction of Evidence to Related to Counts 4 and 5
Defendant next contends that the introduction of evidence at trial about the two counts to
which he had already pleaded guilty was improper under Federal Rule of Evidence 404(b). The
rule reads in part as follows:
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Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
Fed. R. Evid. 404(b). While we generally review the admission of Rule 404(b) evidence for an
abuse of discretion, United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010), we have
acknowledged that certain of our cases have adopted a three-step approach. See United States v.
Mandoka, 869 F.3d 448, 457 (6th Cir. 2017) (summarizing the two approaches). Defendant
suggests that we review for an abuse of discretion and we do so here, although our conclusion
would be the same under either standard.
As mentioned at the outset, as part of the investigation into Dowler’s death, Elyria police
detectives arranged for a confidential informant, Anthony Bouie, to make a controlled purchase of
heroin from defendant. Bouie, who had died by the time of trial, had been briefly incarcerated with
defendant. While the two shared living quarters, defendant allegedly told Bouie that his heroin was
so good that it killed a girl. Bouie reported this conversation to the authorities who then arranged
for the controlled purchase of over a gram of heroin, which was delivered in a clear bag. The
government argued to the district court that the packaging was similar to the plastic baggy that was
found on Dowler’s nightstand and was admissible to show identity, intent, and knowledge.
The district court permitted the proposed testimony. At trial, the government called Elyria
police detective Christopher Constantino who described the controlled buy between Bouie and
defendant. Constantino also testified on cross-examination that the packaging of the heroin
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purchased by the confidential informant was “similar, if not the same” as the packaging found on
Dowler’s nightstand.
For his part, defendant contends that the res gestae, or background, evidence introduced at
trial should not have been admitted because it was “not a prelude to counts 1 and 2, was not an
integral part of any witness’s testimony, and did not complete the story of the charged offense.”
Brief at 40. Rather, the controlled purchase occurred seventy-eight days after Dowler’s death.
At trial, the government and the district court largely focused on whether Constantino’s
testimony was admissible under Rule 404(b)(2), not whether it was admissible as res gestae
evidence, and the government’s arguments on appeal relate to Rule 404(b). Under Rule 404(b) and
this Court’s precedent, evidence of a “crime, wrong, or other act” is generally inadmissible, but
may be admitted to show “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2), so long as its probative value is
not substantially outweighed by its likelihood of unfairly prejudicing the defendant. United States
v. Mack, 729 F.3d 594, 601 (6th Cir. 2013). To grant a defendant relief due to a district court’s
Rule 404(b) error, this Court must find both that the district court abused its discretion in admitting
the evidence and that its error requires reversing the defendant’s conviction. See United States v.
Haywood, 280 F.3d 715, 724 (6th Cir. 2002). Reversing a defendant’s conviction is not required
if a district court’s error was “harmless in light of the overwhelming evidence of [a] [d]efendant’s
guilt.” United States v. Murphy, 241 F.3d 447, 453 (6th Cir. 2001).
We affirm the district court on this point. Any error that it may have made in construing
Rule 404(b) was harmless and therefore does not require reversal. Even if we assume that the
district court erred in admitting Constantino’s testimony, there was “overwhelming evidence of
Defendant’s guilt” in this case. Murphy, 241 F.3d at 453. Indeed, defendant eventually admitted
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near the end of the trial that there was “pretty strong evidence [defendant] sold [Ms. Dowler]
heroin” based on a message the victim sent defendant asking “is this H?” to which defendant
replied, “yes.” Thus, even if the district court abused its discretion in admitting the contested
testimony, defendant’s conviction must stand.
4: Introduction of Defendant’s Statement about Drugs in his Possession
Without objection, the government called Melissa Cieszynski as a witness. She testified
that she knew defendant from working as a bartender in Elyria. Cieszynski stated that she had been
addicted to Vicodin and, later, to heroin. Defendant was a friend on Facebook: “Normally we
talked about some sort of drugs.” According to the Facebook exchanges between them introduced
at trial, defendant sent the message, “I got fire,” to Cieszynski shortly after allegedly selling heroin
to Dowler. She understood that the “fire” was heroin.
Defense counsel argues that this evidence was not introduced for a permissible purpose
under Rule 404(b), but instead in an attempt to prove Mr. Lunn’s criminal character. In its pretrial
motion to admit this evidence, the government contended that it helped to prove “absence of
mistake relating to Defendant’s sale of the deadly heroin/fentanyl to Dowler, as well as his
knowledge and absence of mistake about the potential potency and nature of the drug.” Defense
counsel responds that the government did not need to establish state of mind with respect to
potency to meet the elements of the charged offense.
The government points out that, while this issue would typically be reviewed for an abuse
of discretion, trial counsel’s failure to object makes our review one for clear error.
The evidence introduced by the government concerning defendant’s statement about “fire”
was arguably admissible as res gestae evidence because it “ar[ose] from same events as the
charged offense,” arguably “form[ed] an integral part of [Cieszynski]’s testimony,” and in some
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sense “complete[d] the story of the charged offense.” See United States v. Hardy, 228 F.3d 745,
748 (6th Cir. 2000). Because our review is for clear error and there existed a reasonable basis for
admitting this evidence as res gestae, defendant’s argument fails.
5: Ineffective Assistance
Defendant argues that trial counsel rendered ineffective assistance by retaining a
pharmacist rather than a medical pathologist to testify regarding causation at trial. Specifically, did
the heroin and fentanyl mixture sold to Dowler “result in” her death? This circuit recognizes that
the preferred mode for raising ineffective assistance claims is through a motion to vacate, 28
U.S.C. § 2255, in order to develop the record adequately in the district court. United States v.
Ferguson, 669 F.3d 756, 762 (6th Cir. 2012).
There is nothing to suggest that the record here is adequately developed to determine
whether counsel made a reasonable, strategic decision in selecting an expert. Accordingly, this
argument should be raised to the district court in the context of a Section 2255 motion to vacate
sentence.
III.
The judgment is affirmed.
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CLAY, Circuit Judge, concurring. I concur in the judgment of the majority opinion, and
in its reasoning as well, with one exception. Specifically, with respect to Issue 3, regarding the
admissibility of Elyria police detective Christopher Constantino’s testimony about the controlled
buy between Anthony Bouie and Defendant, I do not find the majority’s res gestae analysis
persuasive. The majority’s analysis is inconsistent with the district court’s analysis and the
government’s argument—both of which discuss the testimony’s admissibility under Federal Rule
of Evidence 404(b)(2), not as res gestae. I would proceed under Rule 404(b) and conclude that
Defendant is not entitled to relief.
At trial, the government and the district court largely focused on whether Constantino’s
testimony was admissible under Rule 404(b)(2), not whether it was admissible as res gestae
evidence, and the government’s arguments on appeal relate to Rule 404(b). (See Appellee’s Br.
38–47; R. 84, Page ID# 831–32 (the government argues that this evidence is admissible because
it goes to “to identity, intent, and knowledge”); R. 84, Page ID# 832 (the court states, “I think it is
404–B testimony”); R. 84, Page ID# 835 (the court instructs the jury to “consider [the] evidence
only” for the purposes enumerated in Rule 404(b)(2))).1 I would therefore proceed under Rule
404(b) rather than invoking the doctrine of res gestae.
Under Rule 404(b) and this Court’s precedent, evidence of a “crime, wrong, or other act”
is generally inadmissible, but may be admitted to show “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident,” Fed. R. Evid. 404(b)(2), so
long as its probative value is not substantially outweighed by its likelihood of unfairly prejudicing
1
The government argues that the testimony of Melissa Cieszynski and her Facebook
messages with Defendant (discussed by the majority as Issue 4) were admissible as res gestae
evidence (Appellee’s Br. 49), and I agree with the majority’s analysis of that issue.
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the defendant. United States v. Mack, 729 F.3d 594, 601 (6th Cir. 2013). To grant a defendant
relief due to a district court’s Rule 404(b) error, this Court must find both that the district court
abused its discretion in admitting the evidence and that its error requires reversing the defendant’s
conviction. See United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002). Reversing a
defendant’s conviction is not required if a district court’s error was “harmless in light of the
overwhelming evidence of [a] [d]efendant’s guilt.” United States v. Murphy, 241 F.3d 447, 453
(6th Cir. 2001).
I would affirm the district court because any error the district court may have made in
construing Rule 404(b) was harmless and therefore does not require reversal. Even if we assume
that the district court erred in admitting Constantino’s testimony, there was “overwhelming
evidence of Defendant’s guilt” in this case. Murphy, 241 F.3d at 453. Indeed, Defendant
eventually admitted near the end of the trial that there was “pretty strong evidence [Defendant]
sold [the victim] heroin” based on a message the victim sent Defendant asking “Is this H?” to
which Defendant replied, “yes.” (R. 84, Trial Tr., Page ID# 1041.) Thus, even if the district court
abused its discretion in admitting Constantino’s testimony, Defendant’s conviction should stand.
16