NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0191n.06 No. 15-6315 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff

- Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN DARRELL REYNOLDS, ) DISTRICT OF KENTUCKY ) Defendant-Appellant. ) OPINION ) BEFORE: NORRIS, GIBBONS, a nd ROGERS, Circuit Judges. ALAN E. NORRIS, Circuit Judge. Defendant Darrell Reynolds appeals his jury conviction on two counts of di stributing pills containing hydroc odone in violation of 21 U.S.C. § 841(a)(1), and one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). He argues that the district court er red by (1) admitting certain testimony in violation of the evidentiary rules agains t hearsay and his Sixth Amendmen t right of confrontation, and (2) by refusing to provide the jury with certain instructions. For the reasons that follow, we affirm

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I. A narcotics detective from the Knox C ounty, Kentucky, Sheriff’s Office engaged a confidential informant (“CI”) to record himself purchasing narcotics from Reynolds. The CI was a paid informant, meaning he was working for law enforcement for cash. On December 13, 2013, the detective searched the CI and outfitted him with marked money and a small video camera and then sent him to buy narcotics from defendant. After theUnited States v. Reynolds No. 15-6315

2 controlled buy, the CI gave the detective ten hydr ocodone tablets that he had purchased and the remaining buy money. On January 8, 2013, the dete ctive prepared the CI the same way and directed him to purchase ten more hydrocodone pills plus a handgun from Reynolds, which he did. The prosecution played the video recordings of the transactions for the jury and entered the recordings into evid ence. Although the combined audio a nd video recordings clearly capture a drug transaction, with defendant present, Rey nolds points out that the video never explicitly showed him with possession of the narcotics or the gun. Th e audio portion captured the transactions involving the drugs and firearm clearly, and the dete ctive testified that it was defendant’s voice in the record ing making the sale and one of the video recordings shows Reynolds speaking. The CI did not testify at trial; it was s uggested that he had died sometime during the period between the purchases and trial. The pros ecutor asked the detective to explain why he began investigating Reynolds, to which he re sponded that he “had the information that [Reynolds] was selling illegal narcotics.” De fense counsel objected on both Confrontation Clause and hearsay grounds, but th e district court overruled th e objection, stating that the question was proper and sought “to explain why [law enforcement] made certain decisions as it relates to an investigat ion, and so it is allowed to ask that question.” The detective testified that he sent the CI to Reynolds’s house to make the controlled purchases. When asked how he knew where defendantlived, the detective said “other people in the community [told] me what was going on ther e” and that the CI “knew Darrell Reynolds and knew where he lived.” During cross-examination, defense counsel returned to the subject of defendant’s residence and asked th e detective what he knew about it. The detective replied thatUnited States v. Reynolds No. 15-6315

3 “people told me who was selli ng narcotics out of there and w ho I see—seen ou t in the yard several times.” Defendant did not object at trial to the admission of the testimony about his residence, but on appeal he asserts that the ad mission of these statements also violated his Confrontation Clause rights and the evidentiary rules against hearsay. Turning to defendant’s claime d jury-instruction error, the recording of th e first drug transaction captured the CI receiving a telepho ne call during which he arranged to purchase drugs from someone named Linda Poe. As it turns out, this was part of the CI’s work with law enforcement. In a separate case, the same detective directed the CI to purchase narcotics from Ms. Poe, eventually leading to her arrest. This is relevant because defense counsel suggests that Ms. Poe’s husband Robert Poe may have sold th e narcotics and the firearm to the CI, and Reynolds was merely present during the transac tions. To support this theory, defense counsel repeatedly highlighted two portions of the reco rding where the audio was garbled and suggested that those portions included refe rences to Mr. Poe, and requesteda jury instruc tion based on a “mere presence” defense. The district court refuse d, holding that the standard jury instructions adequately addressed defendant’s defense theory and that the proposed in struction was confusing because it was adapted from Sixth Circuit patt ern instructions for a conspiracy charge. After a two-day trial, the jury returned a gu ilty verdict on all c ounts: two counts of drug distribution and one count of being a convi cted felon in possession of a firearm.

II. Defendant appeals the district court’s admission of the challenged testimony and its denial of his requested jury instructions.United States v. Reynolds No. 15-6315

4 A. Admitted Testimony “Generally, a district court’s evidentiary rulings are review ed for abuse of discretion.” United States v. Churn , 800 F.3d 768, 774 (6th Cir. 2015) (quoting United States v. Chalmers , 554 F. App’x 440, 449 (6th Cir. 2014)). But when a defendant fails to preserve the issue by objecting at trial, we review for plain error. United States v. Kilpatrick , 798 F.3d 365, 378 (6th Cir. 2015). Hearsay means a statement that “(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). The hearsa y rule applies to most out-of-court statements, but with several exceptions. See Fed. R. Evid. 803. Usually hearsa y evidence is not admissible. Fed. R. Evid. 802. The Confrontation Clause prohibits the admi ssion of out-of-court statements that are testimonial and offered for the truth of the matte r asserted, unless “the declarant is unavailable, and . . . the defendant has had a prior opportunity to cross examine.” Crawford v. Washington , 541 U.S. 36, 59 (2004); see also United States v. Gibbs , 506 F.3d 479, 486 (6th Cir. 2007). The Confrontation Clause is more rigi d than the hearsay rule in term s of exceptions, but it applies to testimonial statements only: It applies to witnesses against the accused—in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. Davis v. Washington , 547 U.S. 813, 823-24 (2006) (quoting Crawford , 541 U.S., at 51) (internal quotations and citations omitted).United States v. Reynolds No. 15-6315

5 On appeal, “[w]hen ‘the evidentiary issues relate to a claimed violation of the Sixth Amendment,’ the de novo standard of review applies.” United States v. Cunningham , 679 F.3d 355, 382 (6th Cir. 2012) (quoting United States v. Davis , 577 F.3d 660, 666 (6th Cir. 2009)). But plain error review is also appropr iate for alleged Confrontation Clau se violations not preserved at trial. United States v. Powers , 500 F.3d 500, 505 (6th Cir. 2007).
1. Background testimony about the investigation The detective testified that he began investig ating Reynolds based on information he had received suggesting that defendant was involved in the sale of narcotics, but he never described the source of the information. Defe ndant relies heavily on two cases to support his claim that this statement was admitted in error: United States v. Cromer , 389 F.3d 662 (6th Cir. 2004) and United States v. Powers , 500 F.3d 500 (6th Cir. 2007). Both cases are distinguishable.
In Powers , an officer testified at trial that a confidential informant notified a narcotics task force that the defendant “was trafficking in significant quantities of cocaine” and “was a well-known cocaine dealer” whic h triggered a sting operation . 500 F.3d at 503, 504. The court considered whether this was permissible backgr ound information and stated that it presented a close question. Id. at 509. The court explained that “testimony ‘provided merely by way of background,’ or to explain why the Government co mmenced an investigation, is not offered for the truth of the matter asserted.” Id. at 508 (quoting Cromer , 389 F.3d at 676). We ultimately held that the district court erred by admitting the testimony and that the defendant’s confrontation rights were violated because the de tails about the defendant’s past activities “were not necessary to set the context of the sting operation for the jury.” Id. at 510. In the end, because of overwhelming evidence of guilt, the court ultimately deemed the error harmless and affirmed the conviction. Id.United States v. Reynolds No. 15-6315

6 In Cromer , an officer testified that she and he r partner “had information about 3284 Buchanan. And we began an inve stigation about this residence being associated with selling drugs.” 389 F.3d at 675. As to this testimony, the defendant’s “confrontation right was not implicated because the testimony was provided by way of background.” Id. at 676 (citing United
States v. Martin , 897 F.2d 1368, 1371-72 (6th Cir. 1990)). The “out-of-court statements . . . served the purpose of explaining how certain events came to pass or why the officers took the actions they did. Because the stat ements were not offered to establish the truth of the matter asserted, the Confrontation Clause does not apply.” Id. On the other hand, the court held that other testimony about Cromer—includi ng his nickname and phy sical description—was offered for the truth of the matter asserted a nd formed a key part of the government’s case. Id. at 677-78. As a result, the admission of the testimony constituted plai n error and the defendant was granted a new trial. Id. at 679. By contrast, in this case Reynol ds cannot point to any specific statement received by the detective. The detective’s statement at trial wa s not used by the government for its truth but rather as background information to explain ho w and why law enforcem ent was investigating defendant. The CI did not approach law enforcement with a “tip” about Reynolds; instead he was used for the sole purpose of gathering evidence. At trial, the government’s case was almost exclusively based on the r ecordings of Reynolds selling the na rcotics and firearm to the CI and the related testimony of the detective. Because the challenged statement was neither testimonial, nor offered for its truth, the Confrontation Clause and the rule against hearsay were not violated, and admitting the statement was not an abuse of discretion.United States v. Reynolds No. 15-6315

7 2. Information about defendant’s residence The detective also testified about how he knew where Reynolds lived, saying “people in the community” told him, plus that the CI kne w defendant and “knew where he lived.” Later, during cross-examination, the detect ive added that “people told me who was selling narcotics out of there.” Counsel for defendant did not object to the admission of any of these statements, and so we review for plain error. Plain error review requires that we “determine whether: (1) there was an error, (2) which was plain, (3) that a ffected the defendant’s substantial rights, and (4) that, in our discretionary vi ew, seriously affects th e fundamental fairness, integrity, or public reputation of judicial proceedings.” Gibbs , 506 F.3d at 483. Reynolds cannot make this showing. The firs t two statements about the residence are admissible for the same reasons as the backgrou nd information considered above. For one thing, defendant does not point to any particularized statement. And the testimony was not offered for the truth of the matter asserted. The detect ive was merely explaining the circumstances surrounding the CI’s controlled purchases from Reynolds. As above, the statements “served the purpose of explaining how certain events came to pass or why the officers took the actions they did.” Cromer , 389 F.3d at 676. The statements were not offered by the government to establish guilt. Id. at 670. The location of the drug and firearm pur chases is not an element of the offense and testimony about the location did nothi ng to establish the guilt of defendant. On its face, the third piece of testimony by the detective about defendant’s residence, that “people told me who was selling narcotics out of there,” might have presented a closer question under other circumstances. Even though the spea ker is unidentified, the statement arguably could have been used by the government to help establish the guilt of defendant, and allowing “anonymous accusations of crime without any oppor tunity for cross-examination would make aUnited States v. Reynolds No. 15-6315

8 mockery of the Confrontation Clause.” Id. at 675. Here, though, the government did not rely on this statement for its truth. In fact, the statem ent was made under cross-examination as defense counsel sought to establish that law enforcement was unaw are who really owned the house where the controlled purchases occurred. As an initial matter, we need not consider whether the district c ourt erred by admitting a statement made during “cross-examination since ‘a party may not complain on appeal of errors that he himself invited or provoked.’” Id. at 679 n.11 (quoting Harvis v. Roadway Express, Inc. , 923 F.2d 59, 60 (6th Cir. 1991)); see also Shields v. United States , 273 U.S. 583, 586 (1927) (“A defendant in a criminal case cannot complain of error which he himself ha s invited.”) (internal quotation omitted). Even setting aside the “invited error” problem, defendant’s challenge of this statement cannot survive plain error review on the merits. Given the overwhelming evidence of defendant’s guilt, he cannot show that admitting the statement was a plain error that affected his substantial rights.
B. “Mere Presence” Jury Instruction While Reynolds admits he was present for both of the CI’s controlled purchases, he claims that he did not participat e and he requested jury instruc tions in order for the jury to understand that his mere presence during the transactions was insufficient to find him guilty. Defendant was primarily concerned about the drug distribution charges, because the instructions given for the firearm possession count included th e admonition that “just being where something is located does not equal possession” and “just being present with others who had possession is not enough to convict.”United States v. Reynolds No. 15-6315

9 The standard instructions for drug distribution, which were given to the jury, explain that, “The term ‘distribute’ means the defendant deliv ered or transferred a controlled substance.” Defendant’s proposed instructi ons drew from the Sixth Circ uit pattern instructions for “conspiracy,” which explains that one’s mere presence around a conspiracy to distribute narcotics is not sufficient to establish partic ipation in the conspira cy. Here, defendant was charged with actual distribution, not conspiracy, but he adapted the conspi racy instructions to explain that if he was merely pr esent during a drug transaction be tween other parties he could not be convicted for distribution. The district court ultimately rejected the proposed instruction for two reasons, (1) because the proposed instructions “could cause more confusion by trying to cobble together that language from conspiracy,” and (2) the existi ng instructions were “more appropriate to this factual context” and defendant’s “issue is adequately addressed in the instructions that we’re giving.” We review a district court’s refusal to grant a requested jury instruction for an abuse of discretion. Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 445 (6th Cir. 2005). “An abuse of discretion may be found if ‘(1) th e proposed instruction is substa ntially correct; (2) the proposed instruction is not substantially c overed by other delivered charges; and (3) the failure to give the instruction impaired the defendant’s theory of the case.’” United States v. Henderson , 626 F.3d 326, 342 (6th Cir. 2010) (quoting United States v. Triana , 468 F.3d 308, 315 (6th Cir. 2006)). The district court did not abuse its di scretion by disallowing the requested jury instruction. While the district c ourt conceded the first point, noting that defendant’s proposed instruction was not “exactly inaccurate,” neither of the last two elements applies here. First, the substance of the additional instruction sought is adequately covered by the existing instruction.United States v. Reynolds No. 15-6315

10 The delivered instruction explaine d that Reynolds must have “delivered or transferred” the controlled substance to be found guilty of distribution, and that instruction was sufficient to cause a jury to acquit defendant if they believe d that someone else delivered the narcotics. Second, the failure to give the requested instruc tion did not impair defendant’s theory of the case. The evidence of defendant’s guilt—including recordings of the two controlled purchases— was one-sided and overwhelming. “A party need s only a slim amount of evidence to support giving a jury instruction, but jury instructions must be viewed as a whole to determine whether the instruction is necessary.” Taylor v. TECO Barge Line, Inc. , 517 F.3d 372, 387 (6th Cir. 2008). Seizing on a couple of garbled words on the recordings does not satisfy even this “slim amount of evidence” standard.
III. The judgment of the district court is affirmed

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