[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11616

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JERMAINE LAMAR HARVARD, 

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:21-cr-00032-RBD-PRL-1

____________________

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2 Opinion of the Court 23-11616

Before WILSON, NEWSOM, and LUCK, Circuit Judges.

PER CURIAM:

Jermaine Harvard appeals his conviction for distribution of 

fentanyl resulting in the death of a user. On appeal, Harvard argues 

that his conviction is not supported by sufficient evidence because 

the government failed to prove the identity of the victim and failed 

to prove that he sold the victim a substance that was the but-for 

cause of her death. He also argues that the district court abused its 

discretion in admitting hearsay evidence as to the victim’s identity 

and in admitting evidence of his uncharged conduct in violation of

Federal Rules of Evidence 403 and 404. After careful consideration 

of the parties’ arguments, we affirm.

I

We review “sufficiency of evidence to support a conviction 

de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility 

choices in favor of the jury’s verdict.” United States v. Taylor, 480 

F.3d 1025, 1026 (11th Cir. 2007). We review for plain error, however, when the defendant raises a claim challenging the sufficiency 

of the evidence on a ground not argued below. See United States v. 

Achey, 943 F.3d 909, 913 n.3 (11th Cir. 2019). Under plain error review, we, at our discretion, may correct an error where the defendant demonstrates: (1) an error occurred; (2) the error was plain; (3) 

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

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proceedings. Rosales-Mireles v. United States, 585 U.S. 129, 134–35 

(2018). 

“If a reasonable jury could conclude that the evidence establishes guilt beyond a reasonable doubt, the verdict will be affirmed.” Achey, 943 F.3d at 913 (quotation marks omitted). “A reviewing court’s limited determination on sufficiency review” does 

not depend “on how the jury was instructed.” Musacchio v. United 

States, 577 U.S. 237, 243–44 (2016) (holding that a sufficiency challenge should be assessed against the elements of the crime as 

properly charged in the indictment). “It is not necessary that the 

evidence exclude every reasonable hypothesis of innocence.” 

United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).

In assessing the sufficiency of the evidence, we consider all 

the evidence admitted at trial, even unconstitutionally admitted evidence. See United States v. Smith, 459 F.3d 1276, 1286 n.10 (11th 

Cir. 2006). “The test for sufficiency of evidence is identical regardless of whether the evidence is direct or circumstantial, and no distinction is to be made between the weight given to either direct or 

circumstantial evidence.” United States v. Mieres-Borges, 919 F.2d 

652, 656–57 (11th Cir. 1990) (quotation marks omitted). Circumstantial evidence is frequently more than sufficient to establish guilt 

beyond a reasonable doubt. United States v. Henderson, 693 F.2d 

1028, 1030 (11th Cir. 1982). “[C]ircumstantial evidence is not testimony to the specific fact being asserted, but testimony to other 

facts and circumstances from which the jury may infer that the fact 

being asserted does or does not exist.” Id. at 1031. The jury must 

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decide whether to draw the inference between the evidence presented and the fact asserted. Id. When the government relies on 

circumstantial evidence to prove an element of the offense, reasonable inferences from the evidence must support the conviction, not 

mere speculation. United States v. Friske, 640 F.3d 1288, 1291 (11th 

Cir. 2011).

To support a conviction under 21 U.S.C. § 841(a)(1), the government must show that the defendant knowingly or intentionally 

distributed a controlled substance. A penalty-enhancement provision for § 841(a) provides that a defendant shall be sentenced to a 

term of not less than 20 years’ imprisonment, or more than life, if 

he distributed a Schedule I or II drug and death or serious bodily 

injury “results from the use of such substance.” Id. § 841(b)(1)(C). 

The government must prove that the use of the drug was the butfor cause of the victim’s death. See Burrage v. United States, 571 U.S. 

204, 210–14 (2014). “Because the ‘death results’ enhancement increase[s] the minimum and maximum sentences to which [a defendant is] exposed, it is an element that must be submitted to the 

jury and found beyond a reasonable doubt.” Id. at 210. Fentanyl is 

a Schedule II substance. 21 U.S.C. 812(c) Schedule II (b)(6). 

We review de novo Harvard’s argument regarding the failure of the government to prove the substance that he sold the victim was the but-for cause of the victim’s death. Because we conclude that a reasonable jury could find that the evidence admitted 

at trial established Harvard’s guilt beyond a reasonable doubt, we 

will not disturb the jury’s verdict. Achey, 943 F.3d at 913. While 

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the evidence showed that the victim was in communication with 

several potential drug suppliers in the days leading up to her death, 

the jury could reasonably conclude that Harvard distributed the 

fentanyl to the victim that caused her death. The victim’s messages 

indicate that she either did not buy drugs from those other suppliers during the relevant time or did not like the drugs she had previously purchased from the other dealers. Meanwhile, the victim’s 

messages with Harvard show that she purchased what she believed 

to be “good” heroin from Harvard and that she would continue to 

buy from him. The evidence further indicates that Harvard sold 

fentanyl to the victim that she believed was heroin because she 

texted him the day of her death, asking “It’s h right. . . I never seen 

it white before,” and Harvard confirmed that it was. The narcotics 

officer, however, testified that heroin is a brown substance. Although Harvard contends that there were multiple untested pills 

found on scene that may have contained the fentanyl that the victim used, the narcotics officer identified the pills as anti-anxiety or 

depression medications, and there was no evidence that the pills 

actually contained fentanyl. While the inculpatory evidence in this 

case is not direct, the jury could reasonably infer from the substantial circumstantial evidence that Harvard sold the victim fentanyl 

that was the but-for cause of her death.1 

1 To the extent Harvard argues that the fentanyl was not the but-for cause of the 

victim’s death “if it only contributed to an overall effect” that resulted in her death, 

the jury could have reasonably concluded that the fentanyl was the but-for cause of 

the victim’s death based on the testimony of the medical examiner that the victim 

died as a result of fentanyl toxicity and was otherwise healthy. 

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We review Harvard’s argument that the government failed 

to prove the identity of the decedent for plain error as he did not 

challenge the sufficiency of the evidence on this ground below. 

Harvard cannot show plain error because the decedent’s identity is 

not an element of the offense that the government was required to 

prove beyond a reasonable doubt. See 21 U.S.C. § 841.

II

We review a district court’s decision as to the admissibility 

of evidence under a deferential abuse-of-discretion standard and 

“will affirm even if we would have decided the other way.” United 

States v. Burnette, 65 F.4th 591, 605–06 (11th Cir. 2023) (quotation 

marks omitted). Accordingly, even erroneous evidentiary rulings 

are only reversed if the resulting error was not harmless. United 

States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001). An error is 

harmless where it had “no substantial influence on the outcome 

and sufficient evidence uninfected by error supports the verdict.” 

Id. (quotation marks omitted). 

Hearsay is an out-of-court statement that is offered as evidence “to prove the truth of the matter asserted in the statement.” 

Fed. R. Evid. 801(c). Hearsay evidence is generally inadmissible 

unless it falls under one of the stated exceptions to the hearsay rule. 

See Fed. R. Evid. 802. An out-of-court statement that is either (1) 

offered to show its effect on the listener or (2) “more in the nature 

of an order or a request” that, “to a large degree, [is] not even capable of being true or false,” is not hearsay. United States v. Rivera, 

780 F.3d 1084, 1092 (11th Cir. 2015) (quotation marks omitted). An 

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out-of-court statement may be admitted to explain the course of an 

official’s investigative actions if “the probative value of the evidence’s nonhearsay purpose is not substantially outweighed by the 

danger of unfair prejudice caused by the impermissible hearsay use 

of the statement.” United States v. Ransfer, 749 F.3d 914, 925 (11th 

Cir. 2014) (quotation marks omitted).

A statement that is otherwise inadmissible hearsay is admissible if it is a record of an event and (1) was made at or near the 

time of the event by someone with knowledge of it; (2) was kept in 

the course of a regularly conducted business activity; (3) making 

the record was a regular practice of that activity; and (4) those conditions are shown by the testimony of the custodian of the records 

or another qualified witness. Fed. R. Evid. 803(6). We have noted 

that reliability is the “touchstone of admissibility” under Rule 

803(6) and that the district court has “broad discretion” to admit 

evidence under this rule. United States v. Arias-Izquierdo, 449 F.3d 

1168, 1183 (11th Cir. 2006). 

The right to cross-examine witnesses is protected by the 

Confrontation Clause. United States v. Diaz, 26 F.3d 1533, 1539 

(11th Cir. 1994). We have held that autopsy reports implicate the 

Confrontation Clause. United States v. Ignasiak, 667 F.3d 1217, 1231 

(11th Cir. 2012). A defendant is entitled to confront a report analyst 

at trial where (1) the report is considered to be “testimonial,” (2) 

the analyst who prepared or certified such a report is a witness 

against the defendant, and, (3) absent a showing that the analyst is 

unavailable and that the defendant had a prior cross examination 

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opportunity. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 

(2009). 

On appeal, Harvard argues that the district court abused its 

discretion by allowing in evidence of the victim’s identification, including her license and toxicology and autopsy reports. We disagree. The relevant crime scene photos that showed the victim’s 

name and driver’s license were not hearsay because they were offered to demonstrate what the testifying officer encountered when 

he arrived at the scene, not to prove the truth of the matter asserted 

within. The officer’s statement that he identified the decedent in 

part from her driver’s license was also not hearsay because he testified to explain his investigatory process and his efforts to identify 

the decedent, he was available for cross-examination, and the statement was not unduly prejudicial. Ransfer, 749 F.3d at 925; Diaz, 26 

F.3d at 1539.

Although the autopsy and toxicology reports were hearsay, 

the district court admitted the reports pursuant to testimony from

the medical examiner and the forensic toxicologist that the respective reports were (1) made at or near the time of the recorded activity; (2) kept in the course of a regularly conducted business activity; and (3) made in regular practice. While the court did not 

specifically rule that the records were admitted as business records, 

there is sufficient testimony on the record to support such a determination, and thus the court did not err. 

III

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We review the admission of evidence under Rule 404(b) for 

abuse of discretion. United States v. Culver, 598 F.3d 740, 747 (11th 

Cir. 2010). “If a reviewing court finds that a district court has 

abused its discretion in admitting evidence in violation of Rule 

404(b), then its decision to uphold the conviction is properly reviewed under a harmless error standard.” United States v. Hubert, 

138 F.3d 912, 914 (11th Cir. 1998). Under that standard, “[r]eversal 

is warranted only if [the error] resulted in actual prejudice because 

it had substantial and injurious effect or influence in determining 

the jury’s verdict.” United States v. Phaknikone, 605 F.3d 1099, 1109

(11th Cir. 2010) (quotation marks omitted, second alteration in 

original). “Overwhelming evidence of guilt is one factor that may 

be considered in finding harmless error.” Id. (quotation marks 

omitted). 

Rule 404(b) prohibits the introduction of evidence of “a 

crime, wrong, or [other] act” to “prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b). It does, however, allow such evidence for other purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Id. Rule 404(b) “is a rule 

of inclusion, and . . . accordingly 404(b) evidence, like other relevant evidence, should not be lightly excluded when it is central to 

the prosecution’s case.” United States v. Kapordelis, 569 F.3d 1291, 

1313 (11th Cir. 2009) (quotation marks omitted). 

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We employ a three-part test to determine if evidence is admissible under Rule 404(b): (1) the evidence must be relevant to an 

issue other than the defendant’s character; (2) there must be sufficient proof that a jury could find by a preponderance of the evidence that the defendant committed the act; and (3) the probative 

value of the evidence must not be substantially outweighed by undue prejudice, as established in Rule 403. United States v. Edouard, 

485 F.3d 1324, 1344 (11th Cir. 2007); see also Fed. R. Evid. 403 (“The 

[district] court may exclude relevant evidence if its probative value 

is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, 

undue delay, wasting time, or needlessly presenting cumulative evidence.”). 

The first prong of the Rule 404(b) test can be satisfied “where 

the state of mind required for the charged and extrinsic offenses is 

the same.” Edouard, 485 F.3d at 1345. By pleading not guilty, a 

defendant places his intent at issue. United States v. Jones 913 F.2d 

1552, 1566 (11th Cir. 1990). We have held that evidence of prior 

drug dealings is highly probative of intent to distribute a controlled 

substance. United States v. Cardenas, 895 F.2d 1338, 1344 (11th Cir. 

1990). We have also held that extrinsic drug offenses do not tend 

to incite a jury to an irrational decision. United States v. Delgado, 56 

F.3d 1357, 1366 (11th Cir. 1995).

The third prong of the Rule 404(b) test consists of balancing, 

under Rule 403, the probative value of the evidence against its prejudicial effect and requires the court to conduct the inquiry based 

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“upon the circumstances of the extrinsic offense.” Edouard, 485 

F.3d at 1345 (quotation marks omitted). Rule 403 is an extraordinary remedy that courts should employ “only sparingly since it permits the trial court to exclude concededly probative evidence.” 

Smith, 459 F.3d at 1295 (quotation marks omitted). Accordingly, 

we view the disputed evidence “in a light most favorable to its admission, maximizing its probative value and minimizing its undue 

prejudicial impact.” Id. (quotation marks omitted). The risk of undue prejudice can be reduced by an appropriate limiting instruction. United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005); 

see also United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 

1993). 

Here, the district court did not abuse its discretion in admitting the certified copies of Harvard’s prior convictions for drug distribution crimes and the challenged Facebook records in which he 

discusses a heroin sale because they were relevant as to his intent. 

See Edouard, 485 F.3d at 1345. The probative value of the evidence 

was also not “substantially outweighed” by its prejudicial effect because the challenged evidence was evidence of prior drug crimes, 

and therefore highly probative of Harvard’s intent to distribute a 

controlled substance. Cardenas, 895 F.2d at 1344. Additionally, any 

undue prejudice that resulted from the district court’s allowance

was mitigated by the limiting instructions that it gave to the jury, 

which instructed the jurors that they could not consider any uncharged conduct as evidence of whether Harvard had engaged in 

the charged conduct but rather the evidence was offered only to 

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show his state of mind, intent, motive, or opportunity to commit 

the crime. See Ramirez, 426 F.3d at 1354.

AFFIRMED.

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