                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
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        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.




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