                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0081n.06

                                            No. 18-5570

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Feb 19, 2019
                                                                               DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                                )
                                                          )
         Plaintiff-Appellee,                              )
                                                          )       ON APPEAL FROM THE
                v.                                        )       UNITED STATES DISTRICT
                                                          )       COURT FOR THE EASTERN
 JEFFREY ISAAC,                                           )       DISTRICT OF KENTUCKY
                                                          )
         Defendant-Appellant.                             )
                                                          )



BEFORE: CLAY, McKEAGUE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.

       Defendant-Appellant Jeffrey Isaac appeals his convictions of conspiracy to distribute

controlled substances, 21 U.S.C. §§ 841(a)(1), 846, and possession of a firearm in furtherance of

a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A), arguing that he is entitled to a new trial because

a law-enforcement officer who was not testifying as an expert was permitted to improperly narrate

videos of controlled drug buys as they were played for the jury. Compounding the error, Isaac

argues, the district court failed to give a cautionary instruction concerning the officer’s

interpretation of the videos. Finding no prejudicial error, we affirm.

                                                  I.

       After Andy Osborne and his wife, April, were arrested for possession of oxycodone and

interviewed by Pikeville Police Department Officer Scotty Hamilton and Detective Mitch Adkins,
No. 18-5570, United States v. Isaac


they agreed to act as confidential informants to aid in Hamilton’s and Adkins’s investigation of

suspected drug trafficking by Isaac. On June 9, 2016, Officer Hamilton and Detective Adkins

equipped the Osbornes with audio and video recording equipment, conducted a “presearch” to

ensure that they did not have controlled substances or contraband, and provided them with $690

to buy drugs from Isaac. At trial, a portion of the video capturing this controlled buy was played

for the jury, narrated by Officer Hamilton. The video and audio captured the Osbornes entering

Isaac’s residence and purchasing oxycodone from Isaac and his wife, Karen.1 Officer Hamilton

identified Isaac and Karen in the video. He also confirmed at various points what was said and

the meaning of certain terms or phrases. For example, Officer Hamilton explained that Isaac’s

statement that “Karen will take care of you” meant “Karen will take care of business, will take

care of [the Osbornes] inside the residence” (R. 157, PID 513); that the request for “18 30s” meant

18 30-milligram oxycodone tablets (id. at PID 515); why the Osbornes received the amount of

change that Isaac provided from their $690; and the meaning of “14 fives, two bars, and a football,”

which another customer of Isaac’s had ordered (id. at PID 517). Officer Hamilton also testified

about the pills obtained from the Osbornes after the controlled buy and their chain of custody.

Isaac did not object to Officer Hamilton’s testimony about the June 9 video.2

       Officer Hamilton next explained the Osbornes’ June 17 purchase of oxycodone from Isaac,

which was also captured by a video that the government played at trial. Officer Hamilton again

identified Isaac and explained that Andy Osborne requested 15 tablets of oxycodone from him.

Officer Hamilton also told the jury that Isaac was “scratching the bills with his finger to make sure

that they’re not counterfeit, that they’re actual bills.” (Id. at PID 524.) Officer Hamilton then




       1
           Karen pleaded guilty to the conspiracy charge.
       2
           Isaac objected to introduction of the video on authentication grounds, and that objection was overruled.

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No. 18-5570, United States v. Isaac


testified that “Jeffrey went back to the top of the refrigerator where he retrieved a plastic sandwich

bag, that he is commonly known to use in the prior transactions.” (Id.) At this point, Isaac objected

to Officer Hamilton’s testimony, in part because “this officer narrated what was said and narrated

what was happening. I think the video itself and audio from the video would be the best evidence

without his interpretations.” (Id. at PID 524-25.) The district court responded that it was “not too

thrilled with [Officer Hamilton] explaining what he perceives is happening and clarifying what he

believes is being heard but I do believe the tapes bear that out.” (Id. at PID 526.)

       After the bench conference, Officer Hamilton explained that he participated in the

execution of the search warrant of Isaac’s residence and based on this knowledge identified the

areas of the residence that were being captured on video, mentioning that “a cache of hidden

controlled substances” was found in Isaac’s bedroom. (Id. at PID 526-27.) Officer Hamilton also

confirmed that the video depicts Andy Osborne leaving the residence and the Osbornes driving to

where they meet Officer Hamilton for debriefing.

       Other evidence was admitted at trial that is not the subject of this appeal. When officers

executed the search warrant, they seized hundreds of pills and several loaded firearms from Isaac’s

bedroom. A forensic scientist testified that the pills purchased by the Osbornes and other pills

found in the residence contained controlled substances, including oxycodone.

       Detective Adkins testified about three other controlled buys occurring on June 3, July 1,

and July 11, 2016. As it did with Officer Hamilton, the government played portions of the audio

or video recordings of those controlled buys and then paused for Detective Adkins to explain what

was happening or what was being said as the Osbornes were purchasing the oxycodone.3




       3
           Isaac does not argue in his appeal brief that Detective Adkins’s testimony was inadmissible.

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No. 18-5570, United States v. Isaac


       One of the informants, Andy Osborne, testified that Isaac had asked him to sell drugs for

him, which Osborne agreed to. He also testified about the controlled buy of oxycodone on June

3, where he and April Osborne purchased oxycodone from Isaac’s daughter, Alyssa,4 because Isaac

was not home. Osborne explained that Alyssa would receive a portion of the sale proceeds when

she sold the drugs. Osborne also testified about the June 9 and June 17 videos at issue in this

appeal, where he and April purchased oxycodone from Isaac and Karen. Like Officer Hamilton,

Osborne testified about what can be seen and heard happening in the video of those controlled

buys. Additionally, Osborne testified about the recordings made of the July 1 and July 11

controlled buys as well. Finally, Osborne explained that he had seen Isaac with a firearm on

several occasions. In one instance, one of Isaac’s customers approached his residence after the

cutoff time of 10:00 PM; Isaac went to the porch and told the customer that “he had five seconds

to get out of there or he was going to fill him full of lead.” (R. 158, PID 623.) Osborne further

testified that there were “firearms always in that house, . . . around where drug deals were going

on.” (Id.)

       The government then recalled Detective Adkins and established his qualifications to give

expert testimony about whether Isaac’s possession of firearms was in furtherance of his drug-

trafficking crime. After detailing his reasons, including the proximity of loaded firearms to Isaac’s

stash of pills, Detective Adkins opined that “the guns that were introduced into evidence, [i.e.,] the

pistols that were found in and around the drugs,” were possessed in furtherance of the drug-

trafficking crime. (Id. at PID 644.)

       The jury convicted Isaac of both counts. Isaac was later sentenced to 144 months’

imprisonment. Isaac now appeals his convictions.



       4
           Alyssa and her boyfriend pleaded guilty to the conspiracy charge.

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No. 18-5570, United States v. Isaac


                                                   II.

        On appeal, Isaac challenges only the portions of Officer Hamilton’s testimony wherein he

narrated and interpreted the videos of the June 9 and June 17 controlled buys. Isaac argues that

Officer Hamilton’s testimony about these videos was improper because it invaded the province of

the jury and constituted impermissible expert testimony, and, further, that the district court should

have provided a cautionary instruction about this testimony, but did not. Accordingly, he argues,

he is entitled to a new trial.

        We ordinarily review a district court’s evidentiary rulings for abuse of discretion. United

States v. Poulsen, 655 F.3d 492, 510 (6th Cir. 2011). However, when a party fails to object to the

admission of evidence, we review for plain error. See United States v. Smith, 601 F.3d 530, 538

(6th Cir. 2010) (citing United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007)). Similarly,

where, as here, a party does not “request a cautionary instruction or object to the instructions issued

to the jury,” we review the district court’s failure to provide a cautionary instruction for plain error.

Eid v. Saint-Gobain Abrasives, Inc., 377 F. App’x 438, 441 (6th Cir. 2010). Plain error is (1) error

that is (2) plain (i.e., “clear or obvious”), (3) results in actual prejudice “affect[ing] the appellant’s

substantial rights,” and (4) “seriously affects[s] the fairness, integrity, or public reputation of the

proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (second alteration in original)

(internal quotation marks and citations omitted).

        We have previously explained that an officer witness who has not been qualified as an

expert may interpret what is said during recorded transactions “only when the law enforcement

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.” United States v. Kilpatrick, 798

F.3d 365, 379 (6th Cir. 2015) (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)).



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No. 18-5570, United States v. Isaac


        This rule is derived from Rule 701, which states:

                If a witness is not testifying as an expert, testimony in the form of an opinion
                is limited to one that 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.

        The party offering testimony under Rule 701 must establish that all three
        requirements are satisfied. [United States v.] Freeman, 730 F.3d [590,] 595–96
        [(6th Cir. 2013)]. The function of lay opinion testimony is to “describ[e] something
        that the jurors could not otherwise experience for themselves by drawing upon the
        witness’s sensory and experiential observations that were made as a first-hand
        witness to a particular event.” Id. at 595 (quoting United States v. Jayyousi, 657
        F.3d 1085, 1120 (11th Cir. 2011) (Barkett, J., concurring in part and dissenting in
        part)); see also United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005)
        (describing lay opinion testimony as an acceptable shorthand for the rendition of
        facts the witness personally perceived).

Id. at 379 (fourth alteration in original).

        Isaac does not argue about any specific statements made by Officer Hamilton. The general

categories of potentially problematic testimony can be divided as follows:

        Identification. Officer Hamilton identified the informants as well as Isaac and Karen.

        Drug terms. Officer Hamilton testified about the meaning of certain terms, indicating they

referred to drugs. (See, e.g., R. 157, PID 515 (“30s” means “30 milligram oxycodone tablets”);

id. at PID 517 (“14 fives, two bars, and a football”).)

        Money exchanged. Officer Hamilton explained the change that was requested for the June

9 transaction, noting that the Osbornes were given $6 back from the $690 provided to Karen

because each 30-milligram tablet of oxycodone cost $18.




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No. 18-5570, United States v. Isaac


       Plain English. Officer Hamilton sometimes interpreted plain English and explained

ordinary events that the jury could perceive for itself. (See, e.g., id. at PID 513 (testifying that

“Karen will take care of you” meant that Isaac’s “wife, Karen, will take of business, will take care

of them inside the residence”).)

       We need not decide whether portions of Officer Hamilton’s testimony were inadmissible

or whether the district court erred by failing to provide a cautionary instruction because a new trial

is not warranted if the admission of the testimony amounted merely to harmless error. We deem

errors to be harmless where “the record evidence of guilt is overwhelming, eliminating any fair

assurance that the conviction was substantially swayed by the error.” United States v. LaVictor,

848 F.3d 428, 448 (6th Cir. 2017) (internal quotation mark omitted) (quoting United States v.

Hardy, 643 F.3d 143, 153 (6th Cir. 2011)), cert. denied, 137 S. Ct. 2231 (2017).

        For the conspiracy count, the government had to prove “the existence of an agreement to

violate the drug laws and that each conspirator knew of, intended to join, and participated in the

conspiracy.” United States v. Volkman, 797 F.3d 377, 390 (6th Cir. 2015) (internal quotation mark

omitted) (quoting United States v. Conrad, 507 F.3d 424, 432 (6th Cir. 2007)). For the count of

possession of a firearm in furtherance of a drug-trafficking crime, the government had to prove

that Isaac possessed a firearm, “a ‘specific nexus between the gun and the crime charged[,]’ and

that the firearm ‘was strategically located so that it is quickly and easily available for use.’” United

States v. Ham, 628 F.3d 801, 808 (6th Cir. 2011) (quoting United States v. Mackey, 265 F.3d 457,

462 (6th Cir. 2001)).

       Here, the evidence against Isaac was overwhelming, eliminating any possibility that the

conviction was substantially swayed by any error. The government presented evidence that

hundreds of pills and several loaded firearms in close proximity to the pills were seized from



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No. 18-5570, United States v. Isaac


Isaac’s bedroom after a search of his residence; video and audio recordings of several controlled

buys were introduced, including three that are not at issue in this appeal; a forensic expert testified

that the pills contained controlled substances; one of the informants testified that Isaac enlisted

him to sell oxycodone and that Isaac routinely had firearms while dealing drugs; and an expert

witness opined that Isaac possessed the firearms in furtherance of his drug trafficking based on the

location and type of firearms seized, as well as the fact that several of them were loaded. Thus,

even putting aside the challenged testimony, which had nothing to do with whether Isaac’s

possession of firearms was in furtherance of the drug-trafficking crime, the evidence was

overwhelming that Isaac conspired to violate the drug laws with Karen, Alyssa, and/or Andy

Osborne, and possessed firearms in furtherance of a drug-trafficking crime. See, e.g., United States

v. Williamson, 656 F. App’x 175, 188 (6th Cir. 2016) (“[T]he overwhelming amount of other

evidence about this particular incident—the contemporaneous video surveillance showing the

movements of Williamson; the cocaine seized from Sheppard; the testimony from co-conspirators

and other police officers involved in the arrest—conclusively tied Williamson to this particular

cocaine deal, and to the drug trafficking enterprise as a whole.” (citation omitted)); United States

v. Martin, 520 F.3d 656, 660 (6th Cir. 2008) (finding that allowing an officer to testify as an expert

and fact witness without a cautionary instruction was not plain error where evidence of guilt was

overwhelming).

       Further, Andy Osborne testified about the videos at issue on appeal and addressed the same

pertinent points as Officer Hamilton. For the June 9 transaction, Osborne identified himself, April

Osborne, Isaac, and Karen; he explained that Isaac told him that Karen would handle the

oxycodone transaction; he explained that other customers were coming to Isaac’s residence to buy

drugs; and he pointed out when he received the drugs and the $6 in change after giving Karen the



                                                 -8-
No. 18-5570, United States v. Isaac


buy money. For the June 17 transaction, Osborne testified that the plan was for him to purchase

15 oxycodone 30-milligram tablets and that he was provided $600 in buy money to do so; he

identified where he asked Isaac for 15 oxycodone pills; he explained that Isaac, as he always did,

scratched the bills to ensure they were not counterfeit; and he explained that Isaac went to the

bedroom to get the oxycodone and then gave the oxycodone to him. Because the informant who

participated in the transactions—and whose testimony about those transactions is not at issue on

appeal—testified to the same critical facts as Officer Hamilton, any error in admitting Officer

Hamilton’s testimony was harmless. See United States v. Blakely, 375 F. App’x 565, 571 (6th Cir.

2010) (finding harmless error where “much of the same substance” of the disputed testimony was

introduced through another witness).

       Finally, Isaac does not point to a single statement made by Officer Hamilton that either

offered an erroneous interpretation of the video or could have substantially swayed the jury. See

Kilpatrick, 798 F.3d at 383 (“[D]efendants who challenge a lay witness’s identification testimony

on appeal should state some claim that the identification was faulty or debatable, and show how

the answer was prejudicial.” (citation omitted)). Under these circumstances, any error was

harmless.

                                               III.

       For the reasons set out above, we affirm.




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