NOT RECOMMENDED FOR PUBLICATION File Name: 17a0645n.06 No. 16-6375 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CHRISTOPHER EVERETT ALLEN, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: BOGGS, BATCHELDER, and BUSH, Circuit Judges. BOGGS, Circuit Judge. In May 2016, Christopher Everet t 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 th e death of another, in violati on of 21 U.S.C. § 841(a)(1); and possession with the intent to distri bute heroin and fentanyl, in viol ation of 21 U.S.C. § 841(a)(1). The district court senten ced 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 pl ainly erred in allowing a government witness to interpret text messages se nt and received by Allen. For the reasons set forth below, we affirm Allen’s convictions.No. 16-6375 United States v. Allen

-2- I On September 16, 2015, Chantel Nicole Alvarez di ed 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 arri ved, they found Alvarez to be unresponsive and noted that she ha d signs of cardiac arre st. 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 w ould later show that the syringe contained morphine and that the spoon contai ned both heroin and fentanyl. Alvarez was transported to a local hospital, where she was pronounced dead. Toxicology tests showed that Alvarez died from “acute co mbined 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 Al varez’s condition, Lamb received a text message on a phone that they shar ed. Although Lamb could not re call 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 sende r was Alvarez’s drug dealer, La mb replied, pretending to be Alvarez; and upon returning to his apartment, he contacted the Lexington Police Department. Officers recommended that Lamb c ontinue the conversation and, eventually, told him to “try to get an amount that was . . . s ubstantial enough . . . to be arre sted 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 th ereafter, police confirmed that Allen’s businessNo. 16-6375 United States v. Allen

-3- 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 Labora tory 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 re sulted in the death of Alvarez. Specifically, Allen argues that even if the evidence showed that he had dist ributed drugs to Alvarez, the government did not establish that those drugs were a but-for cause of her death. Alle n points to the cocktail of drugs found in Alvarez’s system at the time of her deat h, 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 dete rmine ‘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 ci rcumstantial, 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 clai m therefore bears a “very heavy burden.” United
States v. Barnes , 822 F.3d 914, 919 (6th Cir. 2016).No. 16-6375 United States v. Allen

-4- “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 pr oved: ‘(1) knowing or in tentional 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 altera tion in original). “[W]here us e of the drug di stributed 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 pe nalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but- for cause of the de ath or injury.” Burrage , 134 S. Ct. at 892. But-for causation occurs when the distribut ed drug “‘combines with other factors to produce’ death, and death would not have occu rred ‘without the increm ental 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 di stributing drugs that resulted in the death of Alvarez. First, wh en Lexington Police arrested Allen, they found on him three bags containing either hero in or a heroin/fentanyl mixture. Combined with (1) Lamb’s testimony that Allen texted Alvar ez shortly after her d eath “pertain[ing] to what had happened to her as far as her passing away,” (2) Lamb’s ab ility 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 w ith bags of heroin a nd 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 be yond 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 resu lts” enhancement under § 841(b)(1)(C): one canNo. 16-6375 United States v. Allen

-5- 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 wa s 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 millilit er, Alvarez’s blood had a level of 9 nanograms per milliliter. Furthermore, Ward testified th at because fentanyl wa s 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 Al varez contained fentanyl , there was sufficient evidence for the jury to conclude that fenta nyl was an independently sufficient cause of Alvarez’s death.
III Allen next asserts that the district cour t 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 par ties. 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 fent anyl. In short, the qu estion 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 clea r, (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).No. 16-6375 United States v. Allen

-6- 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 [t he 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) (a lterations in or iginal) (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 th e 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, successi ve solicitations for drugs qualifie s 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 tr ansactions 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 communica tions 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 ex isted, 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, how ever, misconstrues the government’s purpose in offering the text messages as evidence. The texts were not offered for their truth. For star ters, “statements [that are] questions or commands [cannot]—absent some indication that the stat ements 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 RuleNo. 16-6375 United States v. Allen

-7- 801(d)(2)(E)’s ambit. More importantly, regardle ss 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 “o rdinary language” in text messa ges between Allen and thirdparties. While Allen objects to Graul’s “numerous, pervasive interpretations of common, everyday language,” he c ites 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.” Fu rther, when Allen texted the word “no” after a customer indicated that he want ed to bring someone new with him to purchase drugs, that meant “don’t bri ng 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 someth ing that will really get you high.” He further interpreted “I’ve got the fire” the same way. Appellant Br. 16–17. Allen also fleetingly ar gues that the testimony was inadmissible because “Graul [was not] a first-hand witne ss 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, th e 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 ri ghts”] means that the error must have been prejudicial: It must have affected the outcome of th e district court proceedings.” Id. at 734. If these three conditions are met, then we ma y—but need not—recognize the forfeited errorNo. 16-6375 United States v. Allen

-8- 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 altera tion in original). Under Federal Rule of Evidence 701, lay opi nion 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 clearl y understanding the witness’s tes timony 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 foundati onal 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 invol ving 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, th is court has held that a law-enforcement officer’s lay opinion is admissible “only when the . . . officer is a particip ant in the conversation, has personal knowledge of the facts being related in the c onversation, 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 us er 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.” A nd 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 asNo. 16-6375 United States v. Allen

-9- “the shit” and “the fire.” As such, even as ide from the question of whether the challenged testimony violated Rule 701( a), it was inadmissible. However, for the exact same reason, Allen ca nnot 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 additiona l weight to a specific interpretation. Given this, Allen has failed to show that the admission of Graul’s interpretations of Allen’s texts cons tituted plain error.
V For the foregoing reasons, we AFFIRM Allen’s convictions.