                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0645n.06

                                           No. 16-6375

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                                                 FILED
                                                                           Nov 21, 2017
                                                         )
       Plaintiff-Appellee,                               )             DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
CHRISTOPHER EVERETT ALLEN,                               )       COURT FOR THE EASTERN
                                                         )       DISTRICT OF KENTUCKY
       Defendant-Appellant.                              )
                                                         )
                                                         )



BEFORE: BOGGS, BATCHELDER, and BUSH, Circuit Judges.

       BOGGS, Circuit Judge. In May 2016, Christopher Everett Allen was convicted of

conspiracy to distribute heroin and fentanyl, in violation of 21 U.S.C. § 846; distribution of

heroin and fentanyl resulting in the death of another, in violation of 21 U.S.C. § 841(a)(1); and

possession with the intent to distribute heroin and fentanyl, in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced Allen to 365 months of imprisonment. On appeal, Allen argues that

the evidence was insufficient to convict him of distributing drugs that resulted in the death of

another, that the district court plainly erred in admitting evidence of drug sales to individuals

other than the decedent, and that the court plainly erred in allowing a government witness to

interpret text messages sent and received by Allen.

       For the reasons set forth below, we affirm Allen’s convictions.
No. 16-6375
United States v. Allen
                                                     I

       On September 16, 2015, Chantel Nicole Alvarez died of a drug overdose in her apartment

in Lexington, Kentucky. Her body was found by her fiancé, Raymond Lamb, who called the

Lexington Fire Department for help. When paramedics arrived, they found Alvarez to be

unresponsive and noted that she had signs of cardiac arrest. Firefighters also discovered a small

syringe and a large spoon in the bathroom where she lay. Tests performed by the Kentucky State

Police (“KSP”) Central Forensic Laboratory would later show that the syringe contained

morphine and that the spoon contained both heroin and fentanyl.

       Alvarez was transported to a local hospital, where she was pronounced dead. Toxicology

tests showed that Alvarez died from “acute combined drug” poisoning, specifically, fentanyl,

heroin, and gabapentin. Alvarez also tested positive for cannabinoids, morphine, codeine, and

buprenorphine (suboxone).

       While at the hospital awaiting word on Alvarez’s condition, Lamb received a text

message on a phone that they shared. Although Lamb could not recall the exact content of the

message, he testified that it “pertain[ed] to what had happened to [Alvarez] as far as her passing

away.” Suspecting that the sender was Alvarez’s drug dealer, Lamb replied, pretending to be

Alvarez; and upon returning to his apartment, he contacted the Lexington Police Department.

Officers recommended that Lamb continue the conversation and, eventually, told him to “try to

get an amount that was . . . substantial enough . . . to be arrested for.” Lamb subsequently

arranged to purchase one gram of heroin from the person with whom he was texting. That

individual proved to be Christopher Allen.

       On September 17, 2015, Allen was arrested when he showed up at Lamb’s and Alvarez’s

apartment to execute the arranged sale. Soon thereafter, police confirmed that Allen’s business



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United States v. Allen
phone number matched the one that Lamb had been texting. At the time of his arrest, Allen

carried three small bags—weighing 1.5 grams, 12.2 grams, and 1.2 grams—as well as a set of

digital scales. The KSP Central Forensic Laboratory identified the contents of those bags as,

respectively, heroin and fentanyl, heroin, and heroin.

                                                II

       Allen first contends that the government did not present sufficient evidence to convict

him of distributing drugs that resulted in the death of Alvarez. Specifically, Allen argues that

even if the evidence showed that he had distributed drugs to Alvarez, the government did not

establish that those drugs were a but-for cause of her death. Allen points to the cocktail of drugs

found in Alvarez’s system at the time of her death, the fact that the government never established

that Allen was the source of each drug, and the allegedly equivocal testimony of a KSP

toxicologist regarding the cause of the overdose.

       We review de novo a challenge to the sufficiency of the evidence supporting a criminal

conviction. United States v. Collins, 799 F.3d 554, 589 (6th Cir. 2015). When evaluating a

sufficiency-of-the-evidence claim, we “must determine ‘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.’” United States v. Pritchett, 749 F.3d

417, 430–31 (6th Cir. 2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This

[c]ourt may reverse the jury’s verdict only if it finds that the judgment is not supported by

substantial and competent evidence, whether direct or wholly circumstantial, upon the record as

a whole.” United States v. Hall, 549 F.3d 1033, 1040 (6th Cir. 2008). A defendant seeking

relief on a sufficiency-of-the-evidence claim therefore bears a “very heavy burden.” United

States v. Barnes, 822 F.3d 914, 919 (6th Cir. 2016).



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No. 16-6375
United States v. Allen
       “To sustain [a] conviction under 21 U.S.C. § 841(a)(1) with a death results enhancement

under § 841(b)(1)(C), the government must have proved: ‘(1) knowing or intentional distribution

of [an illicit drug] . . ., and (2) death caused by (‘resulting from’) the use of that drug.’” United

States v. Smith, 656 F. App’x 70, 73 (6th Cir. 2016) (quoting Burrage v. United States, 134 S. Ct.

881, 887 (2014)) (second alteration in original). “[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, 134 S. Ct. at

892. But-for causation occurs when the distributed drug “‘combines with other factors to

produce’ death, and death would not have occurred ‘without the incremental effect’ of the

controlled substance.” United States v. Volkman, 797 F.3d 377, 392 (6th Cir. 2015).

       The evidence in this case was sufficient to convict Allen of distributing drugs that

resulted in the death of Alvarez. First, when Lexington Police arrested Allen, they found on him

three bags containing either heroin or a heroin/fentanyl mixture. Combined with (1) Lamb’s

testimony that Allen texted Alvarez shortly after her death “pertain[ing] to what had happened to

her as far as her passing away,” (2) Lamb’s ability to arrange a drug purchase from Allen on

short notice, (3) Allen’s apparent belief that he was delivering drugs to Alvarez, (4) Allen’s

showing up to the arranged sale with bags of heroin and fentanyl, and (5) statements Allen made

to police at the time of his arrest indicating that he had had contact with Alvarez on the night of

her death, a rational trier of fact could find beyond a reasonable doubt that Allen sold Alvarez a

combination of heroin and fentanyl on the night of her death.

       Second, as Burrage makes clear, there are two ways to satisfy the causation requirement

of 21 U.S.C. § 841(a)(1) with a “death results” enhancement under § 841(b)(1)(C): one can



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No. 16-6375
United States v. Allen
provide drugs that are either an independent, sufficient cause of the victim’s death or a but-for

cause. The evidence that was presented at trial was sufficient to allow a rational trier of fact to

conclude that fentanyl was an independent, sufficient cause of Alvarez’s death. Michael Ward,

who was a state medical examiner at the time of the incident, testified that “to a medical

certainty,” the level of fentanyl in Alvarez’s blood was lethal. While the therapeutic level for

fentanyl is roughly 1 to 3 nanograms per milliliter, Alvarez’s blood had a level of 9 nanograms

per milliliter. Furthermore, Ward testified that because fentanyl was found in Alvarez’s blood,

but not her urine, she died soon after taking the drug, “perhaps even within an hour.” Given,

moreover, that the spoon that was found near Alvarez contained fentanyl, there was sufficient

evidence for the jury to conclude that fentanyl was an independently sufficient cause of

Alvarez’s death.

                                                 III

       Allen next asserts that the district court committed reversible error by allowing the

government to introduce other-bad-act evidence, specifically, text messages showing Allen’s

involvement in drug transactions with third parties. The government responds that there was no

error because the evidence in question related to one of the charged offenses: conspiracy to

distribute heroin and fentanyl. In short, the question here is whether the challenged evidence

constitutes other-bad-act evidence.

       Where, as here, a defendant fails to object at trial, we review an evidentiary ruling for

plain error. United States v. Henderson, 626 F.3d 326, 338 (6th Cir. 2010). To win relief, Allen

must therefore show that (1) an error occurred, (2) it was obvious or clear, (3) it affected his

substantial rights, and (4) it seriously affected the fairness, integrity, or public reputation of the

judicial proceedings. United States v. Olano, 507 U.S. 725, 733–36 (1993).



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No. 16-6375
United States v. Allen
       Because Allen was charged with conspiracy to distribute heroin and fentanyl, the

challenged evidence was properly admitted.            “For a defendant ‘[t]o be found guilty of

conspiracy, the government must prove that [the defendant] was aware of the object of the

conspiracy and that he voluntarily associated himself with it to further its objectives.’” United

States v. Young, 847 F.3d 328, 353 (6th Cir. 2017) (alterations in original) (quoting United States

v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999)). “Knowledge of a . . . conspiracy may be proved by

circumstantial evidence such as inferences from the conduct of the alleged participants or from

circumstantial evidence of a scheme.” United States v. Smith, 320 F.3d 647, 653 (6th Cir. 2003).

The receipt of numerous, successive solicitations for drugs qualifies as “probative circumstantial

evidence of [the recipient’s] involvement in a conspiracy to distribute” those drugs. United

States v. Rodriguez-Lopez, 565 F.3d 312, 315 (6th Cir. 2009). Given that (1) the challenged

evidence showed Allen’s involvement in drug transactions and negotiations and (2) Allen was

charged with conspiracy to distribute heroin and fentanyl, the evidence was properly admitted.

       Allen replies that even if the communications in question were not other-bad-act

evidence, they would still be inadmissible under Federal Rule of Evidence 801(d)(2)(E) because

the government did not show that a conspiracy existed, that the defendant was a member of the

conspiracy, and that the statements were made during the course and in furtherance of the

conspiracy. This rebuttal, however, misconstrues the government’s purpose in offering the text

messages as evidence. The texts were not offered for their truth. For starters, “statements [that

are] questions or commands [cannot]—absent some indication that the statements were actually

code for something else—be offered for their truth because they would not be assertive speech at

all. They would not assert a proposition that could be true or false.” Id. at 314. Here, the

challenged texts were either questions or commands and, thus, do not fall within Rule



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No. 16-6375
United States v. Allen
801(d)(2)(E)’s ambit. More importantly, regardless of whether the texts were assertions, “the

government offers them, not for their truth, but as evidence of the fact that they were made.” Id.

at 315.

                                                  IV

           Allen’s final claim is that his convictions “must be vacated” because the district court

admitted evidence in violation of Federal Rule of Evidence 701. Specifically, Allen argues that

the court erred in permitting a government witness—Lexington Police Department Detective

Timothy Graul—to interpret “ordinary language” in text messages between Allen and third-

parties.     While Allen objects to Graul’s “numerous, pervasive interpretations of common,

everyday language,” he cites only four instances:

           [Graul] testified that the phrase “I’m out” meant that “the dealer is out of drugs
           for — until they can reup, get more.” Further, when Allen texted the word “no”
           after a customer indicated that he wanted to bring someone new with him to
           purchase drugs, that meant “don’t bring a new customer, don’t bring someone I
           don’t know.” [Graul] interpreted the phrase “man I got the shit” to mean “you've
           got really good drugs. You’ve got something that will really get you high.” He
           further interpreted “I’ve got the fire” the same way.

Appellant Br. 16–17. Allen also fleetingly argues that the testimony was inadmissible

because “Graul [was not] a first-hand witness to the information.” Appellant Br. 17.

           Where, as here, a defendant fails to object at trial, we review an evidentiary ruling for

plain error. United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015) (citing Olano,

507 U.S. at 731–32). As an initial matter, to show plain error, the defendant must establish that

(1) there is an error, (2) it is plain, and (3) it affects substantial rights. Olano, 507 U.S. at 733–

35.   “[I]n most cases [“affects substantial rights”] means that the error must have been

prejudicial: It must have affected the outcome of the district court proceedings.” Id. at 734. If

these three conditions are met, then we may—but need not—recognize the forfeited error

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No. 16-6375
United States v. Allen
provided that the defendant persuades the court that the error “seriously affect[ed] the fairness,

integrity[,] or public reputation of judicial proceedings.” United States v. Vonn, 535 U.S. 55, 63

(2002) (first alteration in original).

        Under Federal Rule of Evidence 701, lay opinion testimony is admissible only when the

party offering the testimony demonstrates that it is “(a) rationally based on the witness’s

perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact

in issue; and (c) not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702.” Kilpatrick, 798 F.3d at 379 (emphasis added). “If [the] witness’s testimony

fails to meet any one of the three foundational requirements, it is not admissible.” United States

v. Freeman, 730 F.3d 590, 596 (6th Cir. 2013).           Of note here, Rule 701(b)’s helpfulness

requirement bars a “case agent [who is] testifying as a lay witness [from] . . . ‘explain[ing] to a

jury what inferences to draw from recorded conversations involving ordinary language’ because

this crosses the line from evidence to argument.” Kilpatrick, 798 F.3d at 381 (quoting Freeman,

730 F.3d at 598). Based upon these requirements, this court has held that a law-enforcement

officer’s lay opinion is admissible “only when the . . . officer is a participant in the conversation,

has personal knowledge of the facts being related in the conversation, or observed the

conversations as they occurred.” Kilpatrick, 798 F.3d at 379.

        There is simply no question that Graul’s testimony violated Rule 701(b). Few people

need assistance to understand that when a drug user contacts a dealer asking for drugs, and the

dealer states, “I’m out,” the dealer means that he is out of drugs. Even fewer require help

understanding that “no,” when said in response to the statement, “I’m bringing a new customer

to you,” means “don’t bring a new customer.” And except for the rarest of individuals, no one

thinks that a drug dealer is speaking literally or denigrating his product when he refers to it as



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United States v. Allen
“the shit” and “the fire.” As such, even aside from the question of whether the challenged

testimony violated Rule 701(a), it was inadmissible.

       However, for the exact same reason, Allen cannot show that his substantial rights were

affected. Allen’s sole argument on this matter is that he was prejudiced because Graul’s status as

a detective led the jury to give more weight to Graul’s interpretation than alternative ones.

Graul’s proffered interpretations, however, are so trivially obvious that it is not clear that any

alternatives exist, let alone that his status as a detective conferred additional weight to a specific

interpretation. Given this, Allen has failed to show that the admission of Graul’s interpretations

of Allen’s texts constituted plain error.

                                                  V

       For the foregoing reasons, we AFFIRM Allen’s convictions.




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