                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0455n.06

                                           No. 17-5496


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Aug 31, 2018
 UNITED STATES OF AMERICA,                               )                  DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )      ON APPEAL FROM THE
 v.                                                      )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE EASTERN
 JOSHUA DONALD EWING,                                    )      DISTRICT OF KENTUCKY
                                                         )
        Defendant-Appellant.                             )                  OPINION
                                                         )
                                                         )



       BEFORE:        GIBBONS, STRANCH, and BUSH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Joshua Ewing was convicted of distributing a

mixture containing heroin and fentanyl, the use of which resulted in the death of Jeremy Deaton,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He received a mandatory life sentence. On

appeal, Ewing challenges his conviction on three grounds: (1) the district court gave internally

inconsistent jury instructions, violating Ewing’s due process rights; (2) juror misconduct deprived

Ewing of his constitutional right to a fair trial and impartial jury; and (3) there is insufficient

evidence to support his conviction and “death results” sentencing enhancement. For the following

reasons, we find no error and AFFIRM on the first two grounds; on the third ground, we

VACATE Ewing’s death results conviction and sentence and REMAND to the district court for

entry of judgment and resentencing on the lesser included offense of distribution of a controlled

substance in violation of 21 U.S.C. § 841(a)(1).
No. 17-5496
United States v. Ewing

                                     I.    BACKGROUND

       On May 5, 2016, Joshua Ewing was indicted on one count of distributing a mixture or

substance containing heroin and fentanyl, the use of which resulted in the overdose death of Jeremy

Deaton, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Ewing turned down a 15-year plea

agreement and proceeded to trial. At trial, the Government introduced evidence demonstrating

that Deaton died of an apparent drug overdose on the morning of February 8, 2016. Data from a

defibrillator implanted years earlier showed that Deaton’s heart was beating over 350 times per

minute the morning of the overdose and that the defibrillator shocked Deaton’s heart three times

between 8:07 and 8:17 a.m. Deaton likely died shortly after the last shock, and his body was

discovered in his garage at approximately 10:15 a.m.

       Deaton’s body was found lying supine on the floor of the garage; one of his sleeves was

pushed up, and he had bruising on his arm that was consistent with intravenous drug abuse. An

empty syringe and a burnt spoon were located near his body. Residue collected from the spoon

tested positive for both heroin and fentanyl; the empty syringe did not contain enough material to

provide an identification. John McCarty, the deputy county coroner who responded to the scene,

testified that Deaton likely collapsed immediately after using drugs. No leftover drugs were found

in the garage, and the officers did not search Deaton’s home beyond that area.

       Toxicology tests were performed and revealed the presence of narcotics in Deaton’s blood

and urine. Fentanyl, cocaine metabolites (the compounds produced when the body metabolizes

cocaine), and low levels of other drugs were found in Deaton’s blood. Fentanyl, fentanyl

metabolites, cocaine metabolites, heroin metabolites, and low levels of other controlled substances

and their metabolites were found in Deaton’s urine. McCarty recorded Deaton’s cause of death as

acute combined drug (cocaine and fentanyl) toxicity.


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United States v. Ewing

        Law enforcement officers who responded to the overdose scene were able to recover and

access Deaton’s cell phone, including text messages between Deaton and a contact identified as

“Josh.” Further investigation identified Ewing as the owner of the phone associated with the

“Josh” number. The Government introduced these text messages as evidence that Ewing sold

Deaton heroin laced with fentanyl the night before Deaton’s death. The Government also called

Timothy Graul, a Lexington Police narcotics detective assigned to the Drug Enforcement

Administration task force, as a witness to interpret what some of the text messages meant. Graul

testified that the texts were consistent with a heroin sale and that, based on the messages, a

transaction had occurred.

        The jury deliberated for over seven hours over the course of two days. After twice

indicating that they were unable to reach a decision, the jury returned a unanimous guilty verdict.

Several days later, the jury foreperson sent a letter to the district court in an attempt to recant her

verdict.   The letter set forth several specific allegations of misconduct, including bias and

misapplication of the law. Ewing moved for judgment notwithstanding the verdict and, in the

alternative, for a new trial. The district court denied the motion without a hearing, determining

that there was sufficient evidence to support the jury’s guilty verdict and that the allegations in the

foreperson’s letter were inadmissible to impeach the verdict under Federal Rule of Evidence

606(b). Ewing was then sentenced to a mandatory life term due to the “death results” enhancement

and a prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(C).

        Ewing appeals his conviction, raising three arguments: (1) the court gave inconsistent jury

instructions, violating his due process rights; (2) juror misconduct deprived Ewing of his

constitutional right to a fair trial and impartial jury; and (3) there is insufficient evidence to support

his conviction.


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No. 17-5496
United States v. Ewing

                                         II.   ANALYSIS

         A.     Jury Instructions

         Ewing first argues that his due process rights were violated because the district court gave

an internally inconsistent jury instruction regarding the mens rea element of the offense. He

concedes that he did not object to the jury instructions below, and we therefore review this

challenge under the plain error standard. See United States v. Castano, 543 F.3d 826, 833 (6th

Cir. 2008).

         Instruction No. 12, which borrowed from Sixth Circuit Pattern Jury Instruction 14.02,

instructed the jury that they must find the following elements beyond a reasonable doubt to convict

Ewing:

         (A) First, the defendant knowingly or intentionally distributed a mixture or
         substance containing a detectable amount of heroin and fentanyl;
         (B) Second, the defendant knew at the time of the distribution that the substance
         was a controlled substance;
         (C) Third, death resulted from the use of the mixture or substance containing a
         detectable amount of heroin and fentanyl.

(R. 30, Jury Instructions, PageID 90) The court further instructed that:

         To prove that the defendant knowingly distributed a mixture or substance
         containing a detectable amount of heroin and fentanyl, the defendant did not have
         to know that the substance contained heroin and fentanyl. It is enough that the
         defendant knew it was some kind of controlled substance. Further, the defendant
         did not have to know how much of the substance containing heroin and fentanyl he
         distributed. It is enough that the defendant knew that he distributed some quantity
         of heroin and fentanyl.

(Id., PageID 90–91 (emphasis added)) Ewing argues that the two above-emphasized sentences are

contradictory, thereby rendering the meaning of “knowingly” ambiguous. Therefore, he argues,

the rule of lenity applies, and the instruction must be read to require proof that Ewing “knew that

he distributed some quantity of heroin and fentanyl.” In the absence of such evidence, he contends,

the charge must be dismissed.

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       “The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the

defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514 (2008). Thus, if

21 U.S.C. § 841 is ambiguous with respect to the knowledge element, Ewing’s argument would

have merit. This court has repeatedly held, however, that “the government need not ‘prove mens

rea as to the type and quantity of the drugs’ in order to establish a violation of § 841.” United

States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003) (quoting United States v. Garcia, 252 F.3d

838, 844 (6th Cir. 2001)).

       The mens rea the government must prove is established by § 841(a), which requires
       nothing more specific than an intent to distribute a controlled substance. Drug type
       and quantity are irrelevant to this mens rea element. . . . [T]he penalty provisions
       of § 841(b) . . . require only that the specified drug types and quantities be involved
       in an offense.

United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014) (citations and internal quotation marks

omitted).

       Ewing does not argue that our precedent is inapplicable to the “death results” penalty

provisions; nor does he provide any authority that, in the absence of statutory ambiguity, an

internally contradictory jury instruction would necessitate application of the rule of lenity or give

rise to a constitutional violation. Ewing is thus unable to demonstrate plain error and his jury

instruction challenge fails.

       B.         Juror Misconduct

       Ewing next argues that juror misconduct deprived him of his right to a fair trial and an

impartial jury.

       Several days after the jury returned a guilty verdict, the foreperson sent a letter to the court

and the attorneys in an attempt to “recant [her] verdict.” She claimed that the jury’s verdict was

based on personal bias rather than evidence. The letter included the following allegations of


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United States v. Ewing

misconduct: (1) the presence of the victim’s family members in the courtroom influenced the

foreperson’s decision;1 (2) another juror stated that he had been married to an addict for 12 years

but failed to disclose this fact during voir dire; (3) a juror repeatedly stated that the lack of defense

witnesses and the inadequate defense lawyering meant that the defendant must be guilty; (4) a

juror stated that the Government’s burden of proof was a preponderance of the evidence, and the

other jurors agreed; and (5) a juror stated that the fact that the Government prosecuted the case in

federal court meant that the defendant was guilty. According to the foreperson, it became “very

clear” that “the group as a whole did not presume the defendant was innocent until proven guilty,”

that the jury did not come to the verdict by following the court’s instructions, and that the defendant

was not given a “fair chance at trial.”

        Following receipt of the letter, defense counsel moved for a new trial pursuant to Federal

Rule of Criminal Procedure 33. The district court denied the motion without holding a hearing,

concluding that Federal Rule of Evidence 606(b) barred consideration of the allegations in the

letter for purposes of impeaching the verdict.

        A district court’s decision to deny a motion for a new trial is reviewed under the abuse-of-

discretion standard. See United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Federal Rule

of Criminal Procedure 33 permits a district court to grant a new trial where “substantial legal error

has occurred.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). “[A]ny error of

sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.”

Id. (quoting United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004)).




1
  On appeal, Ewing has abandoned any claim based on the allegation that the foreperson was influenced by the
presence of the victim’s family members in the courtroom.

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United States v. Ewing

        On appeal, Ewing argues that the misconduct allegations should have been considered

under Rule 606(b)’s exceptions or, in the alternative, that the evidentiary rule must give way to his

constitutional rights. We consider these arguments in turn.

                1.      Admissibility Under Rule 606(b)

        During an inquiry into the validity of a verdict, “a juror may not testify about any statement

made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s

or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” Fed.

R. Evid. 606(b)(1). The rule applies to juror testimony, affidavits, and statements, id, and is

designed to safeguard juror privacy, enable “honest, candid, [and] robust” deliberations, and

protect the finality of verdicts, Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017); see also

Tanner v. United States, 483 U.S. 107, 120–21 (1987) (“[F]ull and frank discussion in the jury

room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system

that relies on the decisions of laypeople would all be undermined by a barrage of postverdict

scrutiny of juror conduct.”).

        The rule does, however, enumerate certain exceptions:

        A juror may testify about whether:

                (A) extraneous prejudicial information was improperly brought to the jury’s
                attention;
                (B) an outside influence was improperly brought to bear on any juror; or
                (C) a mistake was made in entering the verdict on the verdict form.

Fed. R. Evid. 606(b)(2). A district court “has an obligation to investigate a colorable claim of

external influence on the jury to determine whether any external influence occurred and, if so,

whether it was prejudicial.” United States v. Lanier, 870 F.3d 546, 549 (6th Cir. 2017) (citing

Remmer v. United States, 347 U.S. 227, 229–30 (1954)). Distinguishing between external and

internal matters, therefore, is critically important.

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United States v. Ewing

       The “internal processes of the jury generally constitute internal influences.” United States

v. Herndon, 156 F.3d 629, 635 (6th Cir. 1998) (citation and internal quotation marks omitted).

Examples include:     “behavior of jurors during deliberations, the jurors’ ability to hear or

comprehend trial testimony, and physical or mental incompetence of a juror.” Id. at 634–35

(citation and internal quotation marks omitted). The “general body of experiences that jurors are

understood to bring with them to the jury room” are considered “internal matters” that fall within

Rule 606(b)’s prohibition. Warger v. Shauers, 135 S. Ct. 521, 529 (2014) (internal quotation

marks omitted). A juror’s statement suggesting that the jury misunderstood or misapplied

instructions or the law is also typically considered internal and therefore subject to Rule 606(b)’s

bar. See, e.g., United States v. Odunze, 278 F. App’x 567, 572–73 (6th Cir. 2008) (statements

indicating that the jury failed to follow instructions are barred under Rule 606(b)); United States

v. Kelley, 461 F.3d 817, 830–32 (6th Cir. 2006) (juror’s statement that she inferred guilt from the

defendants’ decision not to testify did not fall within Rule 606(b)’s exceptions); United States v.

Rodriquez, 116 F.3d 1225, 1226–27 (8th Cir. 1997) (same); United States v. D’Angelo, 598 F.2d

1002, 1003–05 (5th Cir. 1979) (juror’s statement indicating that the jury misunderstood or

misapplied the law was inadmissible under Rule 606(b)).

       An extraneous influence, on the other hand, “is one derived from specific knowledge about

or a relationship with either the parties or their witnesses.” Herndon, 156 F.3d at 636. Information

“derive[d] from a source external to the jury” is generally “deemed extraneous” and therefore falls

within Rule 606(b)’s exceptions. Warger, 135 S. Ct. at 529 (internal quotation marks omitted).

Examples include a jury’s consideration of facts not introduced in evidence (i.e., extra-record

facts), a juror’s prior business dealings with the defendant, “a juror in a criminal trial who had

previously applied for a job in the district attorney’s office, a bribe attempt on a juror, and


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United States v. Ewing

newspaper articles and media attention.” Herndon, 156 F.3d at 635 (citations omitted); see also

United States v. Swinton, 75 F.3d 374, 381 (8th Cir. 1996) (jury’s discussion of the defendant’s

prior conviction, evidence of which had not been introduced at trial, was “extraneous prejudicial

information”); Hard v. Burlington N. R.R., 812 F.2d 482, 485–86 (9th Cir. 1987) (juror’s

knowledge of a party’s settlement practices was extraneous), abrogated on other grounds by

Warger, 135 S. Ct. 521; In re Beverly Hills Fire Litig., 695 F.2d 207, 214–15 (6th Cir. 1982)

(testimony that a juror conducted improper experimentation was admissible under Rule 606(b) and

required reversal).

       Ewing’s allegations of juror misconduct fall into two categories: (1) failure to disclose

bias during voir dire; and (2) misapplication of law or instructions.

                       a.      Bias

       Ewing argues that a juror lied during voir dire by failing to disclose that he was previously

in a long-term relationship with a drug addict. “[A] party may obtain a new trial if he demonstrates

that a juror failed to answer honestly a material question on voir dire, and that a correct response

would have provided a valid basis for a challenge for cause.” Warger, 135 S. Ct. at 525 (brackets,

ellipsis, and internal quotation marks omitted) (quoting McDonough Power Equipment, Inc. v.

Greenwood, 464 U.S. 548, 556 (1984)). The Supreme Court held in Warger, however, that Rule

606(b) extends “to juror testimony during a proceeding in which a party seeks to secure a new trial

on the ground that a juror lied during voir dire.” Id.

       Warger is instructive. In that case, the plaintiff sued the defendant for negligence after the

defendant’s truck collided with the plaintiff’s motorcycle. See id. at 524. During voir dire,

plaintiff’s counsel “asked whether any jurors would be unable to award damages for pain and

suffering or for future medical expenses, or whether there was any juror who thought, ‘I don’t


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United States v. Ewing

think I could be a fair and impartial juror on this kind of case.’” Id. (citation omitted). Juror

Whipple “answered no to each of these questions.” Id. Shortly after the jury returned a verdict in

favor of the defendant, a juror contacted the plaintiff’s attorney and claimed that juror Whipple

“had spoken during deliberations about ‘a motor vehicle collision in which her daughter was at

fault for the collision and a man died,’ and had ‘related that if her daughter had been sued, it would

have ruined her life.’” Id. (citation omitted). The plaintiff moved for a new trial, contending that

Whipple lied during voir dire about her impartiality. Id. at 524–25 (citing McDonough, 464 U.S.

548). The Supreme Court held that the juror’s affidavit relaying Whipple’s alleged statements

“falls on the ‘internal’ side of [Rule 606(b)’s] line: Whipple’s daughter’s accident may well have

informed her general views about negligence liability for car crashes, but it did not provide either

her or the rest of the jury with any specific knowledge regarding [the defendant’s] collision with

[the plaintiff].” Id. at 529. Thus, the affidavit was barred under Rule 606(b).

       In Ewing’s case, the foreperson alleged in her letter that a fellow juror had previously

maintained a long-term intimate relationship with an addict, which he failed to disclose during voir

dire. Following Warger, this allegation falls on the “‘internal’ side of the line”—the juror’s

relationship “may well have informed [his] general views [about addiction and drug use], but it

did not provide either [him] or the rest of the jury with any specific knowledge regarding” the

allegations against Ewing. Id. It is, therefore, inadmissible under Rule 606(b).

                       b.      Misapplication of Law and Instructions

       The remainder of the misconduct allegations—that jurors applied the wrong standard of

proof and improperly inferred guilt from the lack of defense witnesses, allegedly lackluster defense

lawyering, and the fact that the case was prosecuted federally—can be characterized as failures to

follow, or misapplication of, the law and/or jury instructions.


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United States v. Ewing

       A juror’s failure to follow the law or the district court’s instructions is generally an internal

matter under Rule 606(b). For example, in Kelley, a juror made a statement to a newspaper that

he or she was “struck by the fact that neither of the [defendants] testified. If they were innocent,

they would have testified.” 461 F.3d at 831 (citation omitted). On appeal, this court held that the

juror’s statement “f[e]ll within the scope of Fed. R. Evid. 606(b)” and that, “because the juror did

not learn of the [defendants’] failure to testify through improper channels, a juror’s discussion

regarding this fact does not fall within either Rule 606(b) exception.” Id. at 831–32 (capitalization

altered). The Eighth Circuit came to a similar conclusion in Rodriquez, holding that the jury’s

consideration of the defendant’s failure to testify was not “extraneous information” and therefore

was barred under Rule 606(b)). 116 F.3d at 1226–27.

       In Odunze, a juror’s post-verdict statements suggested that the jury had failed to follow the

court’s instructions and may have improperly shifted the burden of proof to the defendant. 278 F.

App’x at 572. On appeal, we held that the statements fell “squarely within Rule 606(b)’s ambit,

and because the statements speak to how the jurors thought through the case to reach their verdict

(and not to any improper external influence), the rule’s exceptions provide no relief.” Id. at 573.

Similarly, in United States v. Flemming, the Third Circuit concluded that Rule 606(b) barred

inquiry into a juror’s statement that “she and her fellow jurors determined that [the defendant] was

guilty because he did not meet the burden of proof to convince them he was innocent.” 223 F.

App’x 117, 123–24 (3d Cir. 2007); see also United States v. Leung, 796 F.3d 1032, 1038 (9th Cir.

2015) (“[D]uring a proceeding to set aside a verdict, juror testimony that other jurors engaged in

premature deliberations or made up their minds about the case before deliberations began is

inadmissible to demonstrate that the jury engaged in flawed processing of the evidence.”).




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       Much like the allegations in Kelley, Rodriquez, Odunze, and Flemming, the foreperson’s

claims that jurors misapplied or failed to follow instructions and the law in Ewing’s case fall within

Rule 606(b)’s bar—and outside of its exceptions—and are therefore inadmissible to impeach the

verdict.

               2.      Constitutionality of Rule 606(b)

       Ewing argues, in the alternative, that Rule 606(b)—an evidentiary rule—infringes on his

constitutional rights. Collectively, he contends, the misconduct allegations demonstrate that the

jury did not afford him a presumption of innocence, lowered and partially shifted the burden of

proof, and was biased against him as a federal defendant.            To apply Rule 606(b) to bar

consideration of these allegations would therefore abridge his constitutional jury trial right.

       Legislators are afforded significant latitude in enacting evidentiary rules. See Holmes v.

South Carolina, 547 U.S. 319, 324 (2006). “This latitude, however, has limits.” Id. When

evidentiary rules “infringe upon a weighty interest of the accused and are arbitrary or

disproportionate to the purposes they are designed to serve,” they abridge the defendant’s

constitutional rights and must give way. Id. (citation and internal quotation marks omitted). For

example, the Supreme Court has reversed convictions where state evidentiary rules deprived

defendants of “a meaningful opportunity to present a complete defense,” id. at 331 (citation

omitted); the right to confront witnesses, see Davis v. Alaska, 415 U.S. 308, 319 (1974); and “a

trial in accord with traditional and fundamental standards of due process,” Chambers v.

Mississippi, 410 U.S. 284, 302 (1973).

       The Supreme Court upheld the constitutionality of Rule 606(b) in Tanner. See 483 U.S. at

116–17, 120–21, 126–27. Tanner involved allegations of drug and alcohol use by several jurors

during a criminal trial. See id. at 113–16. The Court first held that, “[h]owever severe their effect


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and improper their use,” voluntary drug or alcohol use by jurors was an internal, rather than outside

influence. Id. at 122, 125. The Court went on to hold that application of Rule 606(b) did not

violate the defendants’ Sixth Amendment right to a fair trial before an impartial and competent

jury. Id. at 126–27. “There is little doubt that postverdict investigation into juror misconduct

would in some instances lead to the invalidation of verdicts reached after irresponsible or improper

juror behavior. It is not at all clear, however, that the jury system could survive such efforts to

perfect it.” Id. at 120. The Court emphasized the “other sources of protection of [the defendants’]

right to a competent jury,” including voir dire; observation of jurors during trial by the court,

attorneys, and other jurors; and the admissibility of non-juror evidence of misconduct. Id. at 127.

       In Warger, the Supreme Court reaffirmed its holding in Tanner, concluding that “[e]ven if

jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the

parties’ ability to bring to the court’s attention any evidence of bias before the verdict is rendered,

and to employ nonjuror evidence even after the verdict is rendered.” 135 S. Ct. at 529. The Court

left open the possibility that “[t]here may be cases of juror bias so extreme that, almost by

definition, the jury trial right has been abridged. If and when such a case arises, the Court can

consider whether the usual safeguards are or are not sufficient to protect the integrity of the

process.” Id. at 529 n.3.

       In Pena-Rodriguez, the Supreme Court recognized an exception to the no-impeachment

rule “when a juror’s statements indicate that racial animus was a significant motivating factor in

his or her finding of guilt.” 137 S. Ct. at 867. The Court recalled its earlier “admonition . . . that

the no-impeachment rule might recognize exceptions in the gravest and most important cases

where exclusion of juror affidavits might well violate the plainest principles of justice.” Id. at 864




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(citation and internal quotation marks omitted). In reaching its holding, the Court reasoned that

racial bias is different:

        In the years before and after the ratification of the Fourteenth Amendment, it
        became clear that racial discrimination in the jury system posed a particular threat
        both to the promise of the Amendment and to the integrity of the jury trial. . . .

        Permitting racial prejudice in the jury system damages both the fact and the
        perception of the jury’s role as a vital check against the wrongful exercise of power
        by the State. . . .

        Racial bias of the kind alleged in this case differs in critical ways from the
        compromise verdict in McDonald, the drug and alcohol abuse in Tanner, or the pro-
        defendant bias in Warger. The behavior in those cases is troubling and
        unacceptable, but each involved anomalous behavior from a single jury—or juror—
        gone off course. Jurors are presumed to follow their oath and neither history nor
        common experience show that the jury system is rife with mischief of these or
        similar kinds. . . .

        The same cannot be said about racial bias, a familiar and recurring evil that, if left
        unaddressed, would risk systemic injury to the administration of justice.

Id. at 867–68 (citations and internal quotation marks omitted). The Court found racial bias to be

“distinct in a pragmatic sense as well,” concluding that the safeguards identified in Tanner may be

less effective in protecting against it. Id. at 868–69.

        Rule 606(b), including its exceptions, “is designed to balance the preservation of the

integrity of the jury system and the rights of the defendant.” United States v. Logan, 250 F.3d 350,

380 (6th Cir. 2001). The challenge, as recognized by the dissent in Tanner, is to find the balance

that honors the individual guarantees of our Constitution without undertaking “efforts to perfect”

the jury system that instead destroy it. Tanner, 483 U.S. at 142 (Marshall, J., concurring in part

and dissenting in part). The Supreme Court has chosen to place the fulcrum at a point that protects

jury dynamics and the finality of verdicts.        Its precedent seeks to assure that the private

deliberations of jurors do not become “the constant subject of public investigation—to the

destruction of all frankness and freedom of discussion and conference.” Id. at 120 (quoting

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McDonald v. Pless, 238 U.S. 264, 268 (1915)). The allegations of juror misconduct in Ewing’s

case are indeed “troubling and unacceptable.” Pena-Rodriguez, 137 S. Ct. at 868 (citation

omitted). But they do not fall into the exception for racial bias, see id. at 867, nor do they rise to

the extreme level contemplated in Warger, see 135 S. Ct. at 529 n.3. Considering the limitations

of binding precedent and the specific circumstances of this case, application of Rule 606(b) to

Ewing’s case is not unconstitutional.

       C.      Sufficiency of the Evidence

       Finally, Ewing argues that there is insufficient evidence to support the jury’s guilty verdict.

Ewing raised this argument before the district court in his motion for judgment of acquittal; we

therefore review it de novo. See United States v. Lowe, 795 F.3d 519, 522 (6th Cir. 2015). When

evaluating a sufficiency challenge, we view the evidence in the light most favorable to the

Government and ask whether it is sufficient to permit any rational juror to find the defendant guilty

beyond a reasonable doubt. See id. “Circumstantial evidence alone is sufficient to sustain a

conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”

United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (citation omitted).

       To sustain Ewing’s “death results” conviction, the Government must prove: (1) “knowing

or intentional distribution of heroin [and fentanyl]”; and (2) “death caused by (‘resulting from’)

the use of that drug.” Burrage v. United States, 571 U.S. 204, 210 (2014). To satisfy the second

element, the Government must prove that use of the drug distributed by the defendant was “a but-

for cause of the victim’s death.” United States v. Volkman, 797 F.3d 377, 392 (6th Cir. 2015).

       Ewing’s sufficiency challenge presents three main arguments: (1) there is insufficient

evidence that Ewing sold drugs to Deaton on the night before Deaton’s death; (2) there is

insufficient evidence that fentanyl was a but-for cause of Deaton’s overdose death; and (3) even if


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there is sufficient evidence that Ewing sold drugs to Deaton that night and that fentanyl was a but-

for cause of Deaton’s death, there is insufficient evidence that Ewing sold Deaton the drugs that

caused Deaton’s death.

               1.        Whether Ewing Sold Drugs to Deaton

       The text messages exchanged between Deaton and “Josh” indicate that Deaton was

interested in buying drugs and that Josh had some “KILLA” to sell—a term Detective Graul

interpreted to mean particularly potent drugs. The two men discussed price, quantity, and a

meeting place—“BP.” Deaton later texted that he was early because he had to stop by an ATM

and was also getting gas. Bank records revealed that Deaton withdrew money from an ATM across

from a BP gas station that night. Josh later warned Deaton to use less than the “usual amount” due

to the drug’s potency.

       The Government also introduced evidence linking Ewing to the phone associated with

“Josh’s” number and therefore to the transaction: the contact in Deaton’s phone was listed as

“Josh,” records showed that Ewing owned that phone, and the messages themselves suggest a level

of familiarity between the two men and possible past dealings. Graul also testified that drug

dealers tend to be “very protective” of their phones and that it was “extremely unlikely” that Ewing

would have allowed someone else to access or use his phone. The evidence as a whole is sufficient

to permit a rational juror to conclude that a drug transaction actually occurred the night before

Deaton’s death and that Ewing was the dealer.

               2.        Whether Fentanyl Was a But-For Cause of Deaton’s Death

       In Burrage, the Supreme Court held 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.

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United States v. Ewing


571 U.S. at 218–19. Evidence that the drug merely contributed to the victim’s death is insufficient,

id. at 216, but, “where 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,” but-for causation exists, Volkman, 797 F.3d at 392 (quoting Burrage, 571 U.S. at 211).

Burrage did not address whether evidence that the drug in question was an independent, sufficient

cause of death would be legally adequate—even if the drug was not a but-for cause of death—but

this court has held in an unpublished opinion that it is. See United States v. Allen, 716 F. App’x

447, 450 (6th Cir. 2017) (recognizing two ways to establish causation “under § 841(b)(1)(C): one

can provide drugs that are either an independent, sufficient cause of the victim’s death or a but-for

cause”).

       The evidence introduced at trial strongly demonstrates that fentanyl was an independent,

sufficient cause of Deaton’s death. Toxicology testing revealed that Deaton had 16.8 nanograms

per milliliter of fentanyl in his blood; the therapeutic level is between 1 and 3 nanograms per

milliliter. Multiple witnesses testified that blood levels provide a more recent history of drug use

than urine levels and are more useful in determining whether the drug had a toxic or lethal effect

on the person. The presence of fentanyl in Deaton’s blood, therefore, indicates recent use, and the

high level suggests that the use was lethal. Michael Ward, an adjunct professor retired from the

Kentucky Medical Examiners Toxicology Lab, testified that 16.8 nanograms per milliliter of

fentanyl was a lethal level in any individual, regardless of tolerance, and that there is “no question

that the fentanyl was, in fact, the cause of [Deaton’s] death.” Ewing’s own expert witness, Dr.

David Feola, testified that Deaton’s fentanyl level was “absolutely” a potentially lethal dose.

       The evidence, viewed in the light most favorable to the Government, also permits a jury to

find that fentanyl was a but-for cause of Deaton’s death. The death certificate listed cocaine and

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United States v. Ewing

fentanyl toxicity as the cause of death, and there was testimony indicating that cocaine can cause

heart issues and that the cocaine metabolite level in Deaton’s blood could have been “potentially”

fatal. But there was also expert testimony that, in the event of a cocaine overdose, one would

expect cocaine, not just cocaine metabolites, to be present in the decedent’s blood. Ewing’s expert

witness agreed, testifying that it was much less likely that cocaine played a role in Deaton’s death

because there was no active cocaine concentration in his blood. The jury was free to credit these

opinions and conclude that fentanyl was a but-for cause of Deaton’s death. See Volkman, 797 F.3d

at 394.

          In sum, there was sufficient evidence to support the jury’s finding that fentanyl caused

Deaton’s death—either as an independent and sufficient cause or as a but-for cause.

                 3.      Whether Ewing Sold the Drugs that Caused Deaton’s Death

          To sustain Ewing’s death results conviction, the Government must also prove that the drugs

sold by Ewing were the same ones that caused Deaton’s death.              Ewing contends that the

Government did not meet its burden because (1) there is insufficient evidence that Ewing sold

heroin laced with fentanyl, rather than cocaine or some other drug, to Deaton; and (2) even if

Ewing sold Deaton heroin with fentanyl, there is insufficient evidence that it caused Deaton’s

death.

          The Government introduced evidence that the drug transaction between Ewing and Deaton

involved heroin laced with fentanyl. Detective Graul testified about the increasing prevalence of

heroin and heroin laced with fentanyl in the area. He explained that he could not remember any

case involving pure heroin and that all the heroin he had seen in recent years “ha[d] been cut with

fentanyl or something similar.” He also testified that the terms, quantity, and price discussed in

the text messages between Deaton and Ewing were consistent with a heroin transaction, including


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United States v. Ewing

heroin laced with fentanyl. For instance, the $170 per gram price is consistent with heroin, which

is commonly sold for between $150 and $200 per gram. That testimony also indicated that the

drug Ewing sold was probably not another substance, such as cocaine. Heroin is commonly sold

in gram or half gram quantities; cocaine, on the other hand, is more commonly referred to in ounces

or “eight balls,” referring to an eighth of an ounce, and has a fairly consistent price of

approximately $100 per gram. Thus, viewing the evidence in the light most favorable to the

Government, there is sufficient evidence to permit a reasonable jury to find that the drug sold by

Ewing to Deaton was heroin laced with fentanyl.

       There is, however, an unexplained gap in the evidence with respect to Deaton’s heroin use

that calls into question whether the fentanyl that caused Deaton’s death was from the mixture of

heroin and fentanyl that Ewing sold to him.

       The evidence demonstrated that Deaton collapsed immediately after using drugs at about

8 a.m. and died shortly thereafter. Deaton’s defibrillator shocked his heart three times between

8:07 a.m. and 8:17 a.m. and recorded a heart rate of over 350 beats per minute. Detective Graul

testified that he believed the drug use that caused Deaton’s overdose death occurred at

approximately 8 a.m., and Deputy Coroner McCarty opined that Deaton “had used the drug and

had immediately collapsed.” Deaton had a lethal level of fentanyl in his blood, which indicates

that he used fentanyl—either alone or mixed with another drug—at approximately 8 a.m., and it

was this fentanyl that caused his death.

       The jury heard expert testimony from both the Government and Ewing that the presence of

a drug or its metabolites in a person’s blood indicates whether that person used that drug in the

immediate past. According to Ward, “[t]he blood, as you analyze it, will give you a more recent

history of ingestion.” In contrast, the presence of a drug or its metabolite in the urine shows only


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United States v. Ewing

past or historical use and, unlike blood test results, does not reveal immediate past use. McCarty

testified that drugs found in the urine have “been in the body long enough to move into the urine,

which is not immediate”; Ward added that urine tests give “a historical perspective” and that

substances ingested two or three days earlier can still show up in one’s urine.

       Toxicology test results showed that fentanyl and fentanyl metabolites were present in

Deaton’s blood, along with cocaine metabolites. Heroin metabolites were found in Deaton’s urine,

but his blood contained neither heroin nor heroin metabolites. The absence of heroin itself in

Deaton’s blood would not necessarily undermine the Government’s case, given the drug’s fast

half-life, but the absence of any heroin metabolites in Deaton’s blood rendered it highly unlikely

that he had used heroin “in the several hours before his death.” According to Dr. Feola, if Deaton

had used heroin within a few hours of his death, “it would be much more likely” that morphine

and 6-Monoacetylmorphine, the two tested-for heroin metabolites, would have been present in his

blood. The absence of those metabolites rendered it “much more likely that [Deaton’s] heroin

ingestion was not around the time of [his] death.”

       The Government did not present any evidence to rebut Feola’s testimony or to otherwise

explain the absence of heroin or heroin metabolites in Deaton’s blood. And the testimony of the

Government experts—that urine reveals only historical use, while blood reveals more recent use—

supports Feola’s conclusion that Deaton had not used heroin in the several hours immediately

before his overdose death. It is during that time frame, according to the Government’s other

evidence, that Deaton used the drugs that caused his death. In the absence of any evidence

explaining this inconsistency, the jury lacked sufficient evidence to conclude beyond a reasonable

doubt that the heroin mixture sold by Ewing contained the fentanyl that caused Deaton’s death.




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United States v. Ewing

       The other evidence relied on by the Government does not alter this conclusion. The spoon

recovered from the workbench near Deaton’s body contained both heroin and fentanyl residue,

indicating that Deaton had likely used that spoon to heat both drugs. It does not, however, tell us

or the jury whether the residue accumulated because Deaton used the spoon to heat a substance

that contained both drugs or whether he had used the spoon at some point to heat each drug

separately, leaving residue from both. Deaton had a history of drug abuse and evidently had been

using the spoon to cook narcotics. He had multiple drugs in his system, including cocaine, which

the Government does not contend came from Ewing, so while no evidence of a subsequent drug

transaction was presented, Deaton clearly had access to other illicit substances in the days and

hours before his overdose death.

       It is of course true that the evidence “need not remove every reasonable hypothesis except

that of guilt” to support a conviction, Barnett, 398 F.3d at 522 (citation omitted), but the absence

of heroin or heroin metabolites in Deaton’s blood and the lack of any evidence or testimony to

explain its absence leaves us unable to conclude that the jury’s verdict as to the death results

enhancement is supported by sufficient evidence.

       However, as discussed above, there is sufficient evidence that Ewing sold Deaton heroin

laced with fentanyl in violation of the lesser-included offense of distribution of a controlled

substance. See 21 U.S.C. § 841(a)(1); Burrage, 571 U.S. at 210 n.3 (“Violation of § 841(a)(1) is

thus a lesser included offense of the crime charged in count 2 [the unlawful distribution of a

Schedule I or II drug that results in death, § 841(a)(1), (b)(1)(C)]. It is undisputed that [the

defendant] is guilty of that lesser included offense.”); United States v. Burrage, 747 F.3d 995, 998

(8th Cir. 2014) (reversing the defendant’s conviction following remand from the Supreme Court,




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United States v. Ewing

and remanding to the district court to “enter judgment on the lesser included offense of distribution

of a controlled substance in violation of 21 U.S.C. § 841(a)(1)” and for resentencing).

       We therefore vacate Ewing’s death results conviction and remand to the district court to

enter judgment on the lesser-included offense of distribution of a controlled substance in violation

of 21 U.S.C. § 841(a)(1) and for resentencing. See Rutledge v. United States, 517 U.S. 292, 306

(1996) (noting that “federal appellate courts appear to have uniformly concluded that they may

direct the entry of judgment for a lesser included offense when a conviction for a greater offense

is reversed on grounds that affect only the greater offense”); United States v. Ward, 37 F.3d 243,

250–51 (6th Cir. 1994) (reversing a continuing criminal enterprise conviction and remanding for

resentencing on the merged conspiracy count); see also United States v. Hickman, 626 F.3d 756,

770–71 (4th Cir. 2010) (“Because we conclude that the record contains sufficient evidence to

persuade a rational fact finder beyond a reasonable doubt of [the defendant’s] guilt on the lesser

included offense of conspiracy to distribute one hundred grams or more of heroin, we direct entry

of judgment against [the defendant] under Count I of the indictment for conspiracy to distribute

and to possess with intent to distribute heroin in the amount of one hundred grams or more.”).

                                      III. CONCLUSION

       For the reasons explained above, we AFFIRM the district court on Ewing’s jury

instruction and juror misconduct challenges, VACATE Ewing’s death results conviction and

sentence, and REMAND to the district court for entry of judgment and resentencing on the lesser-

included offense of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1).




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