RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0012p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

KENNETH SADLER (19-2217/2221); DEMARCO TEMPO

(20-1177),

Defendants-Appellants.

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Nos. 19-2217/2221/20-1177

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

Nos. 2:16-cr-20414; 2:18-cr-20221—Sean F. Cox, District Judge.

Argued: October 26, 2021

Decided and Filed: January 21, 2022

Before: DAUGHTREY, COLE, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: David M. Burgess, Dearborn, Michigan, for Appellant Kenneth Sadler. Phillip D. 

Comorski, Detroit, Michigan, for Appellant Demarco Tempo. Daniel R. Hurley, UNITED 

STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: David M. 

Burgess, Dearborn, Michigan, for Appellant Kenneth Sadler. Phillip D. Comorski, Detroit, 

Michigan, for Appellant Demarco Tempo. Amanda Jawad, UNITED STATES ATTORNEY’S 

OFFICE, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendants Demarco Tempo and Kenneth Sadler challenge the 

judgments in their criminal cases after a jury convicted them on various drug, gun, and 

>
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 2

obstruction of justice charges. Defendant Demarco Tempo appeals his convictions and sentence 

on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; drug possession and 

distribution charges under § 841(a)(1), (b)(1)(C); and a drug possession and distribution near a

school charge under §§ 841, 860. Defendant Kenneth Sadler challenges his convictions and 

sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; a drug

possession and distribution near a school charge under §§ 841, 860; a felon in possession of a

firearm charge under 18 U.S.C. § 922(g)(1); a conspiracy to obstruct justice charge under 

§ 1512(k); and witness tampering charges under § 1512(a)(2)(A). For the reasons discussed 

below, we AFFIRM Tempo’s convictions and sentence, AFFIRM Sadler’s convictions, but 

VACATE Sadler’s sentence, and REMAND for a new trial on the sole question of whether 

Sadler was within the chain of distribution as required before imposing an enhanced sentence 

under 21 U.S.C. § 841(b)(1)(C).

I. BACKGROUND

A. The “Polo” Operation

Between 2012 and 2016, people in east Detroit could buy heroin and crack cocaine at all 

hours of the day and night by calling one of two different phone numbers and going to a set 

location where they would meet someone to buy drugs. Those who used this drug dealing 

system called it “Polo.” (See Jamie Dabish Trial Test., R. 705, Page ID #3943, #3959; Marko 

Tomic Trial Test., R. 721, Page ID #5662; David Grzywacz Trial Test., R. 722, Page ID 

#5855).1

The Warren City Police Department—in conjunction with the Drug Enforcement 

Administration (“DEA”) and the Federal Bureau of Investigation (“FBI”)—began investigating 

“Polo” in 2016. The investigation led to a large takedown operation. Law enforcement arrested 

thirteen “Polo” members, and the government charged them with multiple drug trafficking 

1This appeal arises from two separate cases in the Eastern District of Michigan, Nos. 2:16-cr-20414 and 

2:18-cr-20221. The cases were joined for trial. Unless otherwise noted, citations to the record refer to the 

consolidated docket for all Defendants in Case No. 2:16-cr-20414. There are a small number of citations to the 

record in the separate, but related, case against only Kenneth Sadler, Case No. 2:18-cr-20221. Citations to that 

record will provide the case number.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 3

offenses. Most Defendants pleaded guilty. Only Tempo and Sadler proceeded to trial. The trial 

lasted nineteen days, and the witnesses included “Polo” customers, law enforcement officers, 

paramedics, acquaintances, medical and forensic experts, and one of the alleged co-conspirators 

(and co-Defendants). The government also introduced physical evidence from surveillance 

operations and property searches. This evidence tells the story of a sophisticated and wellorganized drug trafficking scheme called “Polo.” The government alleges that Tempo led this 

operation and that Sadler—Tempo’s half-brother—participated.

1. Customer Testimony

Ten “Polo” customers testified at Defendants’ trial. Each bought drugs from “Polo” 

many times—some hundreds of times, and often multiple times a day. They each described 

buying drugs from “Polo” in the same way. First, customers called one of two phone numbers: 

one ending in x3399, the other ending in x5598. Customers “could call th[ose] phone[s] . . . 

24/7,” and they were “always available.” (Olivia Palazzola Trial Test., R. 715, Page ID #5369). 

Many customers said that the same person “[u]sually, but not always” answered the phone. 

(Jennifer Pointer Trial Test., R. 717, Page ID #5533; see also Dan Magda Trial Test., R. 722, 

Page ID #5898 (stating the same person answered “[m]ost of the time”); Hannah Fenn Trial 

Test., R. 715, Page ID #5275 (stating “it sounded like the same person” who answered, and that 

“maybe once or twice somebody else had answered”)). However, a few believed that different 

people answered the phones. Some customers called and asked for “Polo” or called the person 

who answered “Polo.” But the person answering did not identify himself, and customers never 

met anyone who introduced himself as “Polo.” Even so, customers understood “Polo” to mean 

“one person.” (Pointer Test., R. 717, Page ID #5530). 

On this first call, the person who answered the phone directed the customer to a meeting 

spot, usually one of five locations in east Detroit: Hamburg Street, Dresden Street, the 

intersection of Bradford Avenue and Bringard Drive, the intersection of Seven Mile Road and 

Gratiot Avenue, or the intersection of Eight Mile Road and Hoover Road. At the meeting spots, 

cars often “lined up” waiting to buy drugs. (Tomic Test., R. 721, Page ID #5665). Once the 

customer arrived, a “runner” would approach her. (Christina Yako Trial Test., R. 723, Page ID 

##5990–91). Runners were people who “went around and sold the drugs for whoever was in 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 4

charge.” (Pointer Test., R. 721, Page ID #5603; see also Yako Test., R. 723, Page ID #5990 

(describing a “runner” as the one who “comes out and gives the drugs real quick, and just . . . 

goes back in”)). Customers met different runners depending on when and where they bought 

drugs. Sometimes the runner had the drugs on him, but sometimes he went “around the corner of 

a [vacant] house . . . and then [he] would come ba[ck] with the drugs.” (Grzywacz Test., R. 722, 

Page ID #5860). Runners were usually alone and often on foot. Occasionally, however, the 

runner would be in a van or car when approaching the customer. If the runner was in a car, he 

was usually with two or three other people.

After a runner approached the customer, the customer placed an order. If the customer 

wanted heroin, she asked for “boy,” and if she wanted crack cocaine, she asked for “girl.” 

(Palazzolo Test., R. 715, Page ID #5345; Dabish Test., R. 705, Page ID #3958). The drugs were 

packaged in small plastic bags about 0.5 to 1.5 inches in size, and each small bag cost $20. 

Sometimes the runner took the small bag of drugs out of a larger “sandwich bag that had . . . 

little bags in it.” (Pointer Test., R. 717, Page ID #5537). After serving a customer, the runner 

“would walk up to the next car or walk back where they came from.” (Palazzolo Test., R. 715, 

Page ID #5351).

One runner, Amacio Alexander, testified at Defendants’ trial. In May or June 2016, a 

man known as “Mr. Howard” recruited Alexander to sell drugs. (Amacio Alexander Trial Test., 

R. 705, Page ID ##4032–35). Alexander’s job was to stand on Hamburg Street and “[s]ell a little 

product.” (Id. at Page ID #4040). On a typical day, he sold drugs to about 50 customers. 

Mr. Howard gave him the drugs to sell in a sandwich bag with about 50 small, prepackaged bags 

of drugs. Alexander usually sold three or four sandwich bags—roughly 150 to 200 small, 

individual bags—each day. He sold each bag for $20, and, when he ran out, Mr. Howard found 

him, took the money from earlier sales, left, and returned with a replenished bag of drugs. 

2. Undercover Purchases

As early as 2013, the FBI began investigating drug trafficking activity on the east side of 

Detroit in connection with the name “Polo.” As part of this investigation, the FBI set up two 

undercover purchases using a confidential informant. On January 29, 2013, the informant called 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 5

the x3399 phone number and was directed to Gratiot Avenue and Whittier Street. He bought 

three bags—0.175 grams—of heroin for $55. On November 1, 2013, the informant called the 

x3399 number again and was directed to a house on Hamburg Street. The informant bought two 

small bags—0.14 grams—of heroin for $40.

Between April 19, 2016, and June 14, 2016, Officer David Villerot with the Warren City 

Police Department carried out eighteen more undercover purchases. He bought drugs from 

“Polo” in the same way as all the other “Polo” customers. Officer Villerot or his informant 

called the x3399 number; met runners at different places including Hamburg Street and the 

intersection of Bringard and Bradford; asked for certain drugs—for example, “two boy;” and 

paid $20 for each small plastic bag of drugs. (David Villerot Trial Test., R. 709, Page ID #4529, 

#4539, ##4545–46, #4572, #4582).

3. Nature of the Substances

“Polo” sold both heroin and crack cocaine. In early 2016, customers started noticing a 

change in “Polo’s” heroin. Until then, the heroin was “brownish,” (Randy Odish Trial Test., R. 

717, Page ID #5429), or “light gray,” (Tomic Test., R. 721, Page ID #5668). But in early 2016, 

the heroin changed color; it was lighter—“like a light beige . . . [or] an off-white color.” 

(Palazzola Test., R. 715, Page ID #5359). Customers also noticed that the texture changed; the 

heroin was now more “powder[y],” (Fenn Test., R. 715, Page ID #5279), or “crystally,” (Tomic 

Test., R. 721, Page ID #5677), when it previously came as a “chunk” and was more rock-like, 

(Grzywacz Test., R. 722, Page ID #5862; Haggart Test., R. 722, Page ID #5785). One customer 

was so confused by the sudden change in the heroin’s appearance that he called the x3399 “Polo” 

number back and said, “I wanted heroin, not crack,” to which the person answering said, “This is 

heroin.” (Odish Test., R. 717, Page ID ##5437–38, #5440). “Polo” customers and street-level 

dealers called this lighter drug “White China,” (Dabish Test., R. 705, Page ID #3969), “kill shit,” 

(Villerot Test., R. 709, Page ID #4554; Fenn Test., R. 715, Page ID #5279), or “Russian white,” 

(Yako Test., R. 723, Page ID #5978). 

This lighter, powdery heroin was more potent. Noticing the change in potency, 

customers were no longer “sure how much [they] could do or how much [they] would need for 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 6

the day.” (Palazzola Test., R. 715, Page ID #5353). One customer reacted differently to this 

heroin; she became ill and vomited after using it. Some suspected that this lighter heroin 

contained fentanyl. One “Polo” runner told a customer that this heroin was “good stuff” because 

it was cut with fentanyl. (Magda Test., R. 722, Page ID #5910). 

As part of the ongoing investigation, police ran several laboratory tests on “Polo” drugs. 

These tests showed that sometimes “Polo” sold pure heroin. In sixteen out of eighteen 

undercover purchases, Officer Villerot bought pure heroin from “Polo.” But sometimes “Polo’s” 

heroin was cut with fentanyl. On April 19, 2016, Officer Villerot bought 0.23 grams of a 

substance containing “detectable amounts of heroin and fentanyl,” (Villerot Test., R. 709, Page 

ID #4548), and on March 17, 2016, a customer bought drugs from “Polo” that contained 

“detectable amounts of fentanyl and heroin,” (Pointer Test., R. 721, Page ID #5583). Sometimes 

“Polo” sold pure fentanyl. On May 30, 2016, Officer Villerot bought 0.28 grams of pure 

fentanyl from “Polo.” On March 30, 2016, police seized 0.028 grams of pure fentanyl from a 

“Polo” customer. And on March 29, 2016, police seized 0.107 grams of pure fentanyl from a 

“Polo” customer.

4. Overdoses

Around the same time that customers noticed a difference in “Polo’s” heroin, law 

enforcement officers and paramedics noticed an uptick in opioid overdoses in Warren, Michigan. 

Many of the witnesses had overdosed—or saw friends overdose—on “Polo’s” drugs. Some 

overdosed on the lighter, more potent heroin. The charges against Tempo and Sadler involve 

five overdoses by four different victims. 

a) Christina Yako

Christina Yako overdosed on February 20, 2016. Randy Odish testified that he was with 

Yako that night and that they called the x3399 number to buy heroin. Phone records confirmed 

that Odish called the x3399 number that night. The heroin they bought was lighter in color and 

“look[ed] different.” (Yako Test., R. 723, Page ID #5976; Odish Test., R. 717, Page ID #5438). 

They went back to Odish’s house and used the drugs. Yako did not mix her drugs with anything, 

but she had used Xanax earlier that day. Odish used the drugs first, and he warned Yako not to 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 7

do too much because they were very strong. Immediately after Yako injected the drugs, she 

“passed out;” she “could hardly breathe,” “[h]er lips [turned] bluish-purple,” and “she [began] 

bleeding from her mouth.” (Odish Test., R. 717, Page ID ##5443–44). Odish then called the 

police.

When the paramedics arrived, they found Yako face-down in a pool of vomit. Her 

fingertips and lips were blue, and she was taking only four to six breaths per minute—a rate 

which is not life-sustaining. The paramedics administered Narcan2intranasally, at which point 

Yako began breathing more rapidly, her vitals improved, and the paramedics transported her to 

the hospital. At the hospital, doctors administered a second dose of Narcan—this time 

intravenously—and Yako became fully alert. The hospital did not give her a urinalysis or blood

toxicology test. The government’s expert witness, Dr. Mills, testified that Yako’s medical 

condition was consistent with an opioid overdose—either on heroin or fentanyl—and that, 

without medical attention, she would have died. 

b) David Grzywacz

David Grzywacz overdosed on February 26, 2016. He said he bought the drugs from 

“Polo.” Phone records showed that he called the x5598 “Polo” number eight times that day. The 

only time Grzywacz noticed a difference in “Polo’s” heroin was on the day he overdosed when 

the drug appeared powdery and lighter. He used the heroin immediately after purchasing it, and 

the next thing he remembers is waking up in an ambulance. 

The paramedics found him in the passenger seat of a car at a gas station. When they 

arrived, they suspected an opioid overdose. At that time, Grzywacz was taking only four breaths 

per minute. The paramedics moved him into the ambulance and administered Narcan 

intravenously. Grzywacz responded well to the Narcan; his breathing returned to normal, and 

the paramedics transported him to the hospital. The hospital did not give him a urinalysis or 

blood toxicology test. Dr. Mills testified that Grzywacz’s medical condition was consistent with 

an opioid overdose and that he likely would have died without medical intervention.

2Narcan is like an anti-venom for opioids. It reverses the effects of opioid poisoning. The government’s 

expert witness, Dr. Kirk Mills, testified that a positive response to Narcan is “basically confirmation” that the patient 

had overdosed on an opioid. (Kirk Mills Trial Test., R. 703, Page ID #3865).
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 8

c) Jennifer Pointer

Jennifer Pointer overdosed twice, first on March 17, 2016, and again on March 30, 2016. 

Before either of her own overdoses, Pointer saw her friend, Dawn Boose, overdose on heroin 

from “Polo.”3 On February 19, 2016, Pointer bought heroin from “Polo” for her boyfriend, 

Boose, and herself. The heroin she bought looked lighter than usual. After snorting an entire 

$20 bag of heroin, Boose’s lips began turning blue, and her skin turned a gray color. Police and 

paramedics arrived, revived Boose, seized the remaining heroin that the group had not used, and 

arrested Pointer. Lab tests showed that the drugs had a detectable amount of both heroin and 

fentanyl. 

On March 17, 2016—St. Patrick’s Day—Pointer called the x3399 number and bought 

heroin from “Polo.” The evidence did not contain Pointer’s phone records from that day, but she 

remembered buying drugs at the intersection of Bradford and Bringard. She said she did not buy 

drugs from any other dealer or use any other drugs that day. The heroin she bought was lighter 

than usual and “looked the same” as it did on February 19, 2016—when Boose overdosed. 

(Pointer Test., R. 721, Page ID #5588). She snorted an entire $20 bag of heroin with her 

boyfriend. 

She woke up “violently ill” with paramedics surrounding her. (Id. at Page ID #5590). 

When the paramedics arrived, she was unresponsive and barely breathing with paraphernalia 

around her. Paramedics administered two doses of Narcan—one intranasally and one 

intravenously. She became responsive after the second dose, walked to the ambulance herself, 

and was lucid when the paramedics transported her to the hospital. At the hospital, her doctors 

gave her a urine drug screen, which was positive for opiates and cocaine. But Dr. Mills testified 

that Narcan would have worked only if Pointer overdosed on opiates; it would not reverse a 

cocaine overdose. Dr. Mills concluded that this overdose was consistent with a heroin or 

fentanyl overdose and that, without medical treatment, it was “[m]ore likely than not [that] she 

would have died.” (Mills Test., R. 703, Page ID #3873).

3The charges against Defendants do not involve Boose’s overdose, but the facts of this incident provide 

useful background for Pointer’s later overdoses.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 9

Pointer overdosed again on March 30, 2016. This time she used Boose’s phone to call 

the x3399 “Polo” number because she did not have a phone at that time. Boose’s phone records 

showed three calls to the x3399 number that day. The drugs she bought this time were “light, but 

not white” like they were when Boose overdosed. (Pointer Test., R. 721, Page ID #5594). She 

and Boose used the drugs in a parking lot before driving to a nearby pain center. Boose snorted 

an entire $20 bag, while Pointer snorted one-half of a $20 bag. While Pointer was driving, 

Boose began to moan, and her lips turned blue. Pointer turned into the pain center parking lot 

and called 9-1-1. 

When police arrived, they searched Pointer and found “the other half of [her] bag of 

heroin” that she bought that day. (Id. at Page ID #5597). Officer Steiber—one of the police 

officers who responded to the scene—testified that, when he searched Pointer, he found “a small 

fold paper, which is consistent with the packaging for heroin.” (Jeffrey Steiber Trial Test., R. 

717, Page ID ##5504–06). Officer Steiber seized the substance, and test results concluded that it 

was 0.028 grams of pure fentanyl, which is “nine to ten times the lethal dose of fentanyl to your 

average adult.” (Mills Test., R. 703, Page ID #3877). Steiber handcuffed Pointer and put her in 

the back of the squad car. He walked away from the car momentarily, and, when he returned, he 

found Pointer unconscious with shallow breathing. The paramedics administered two doses of 

Narcan—one intranasally and one intravenously. After the second dose, “she became responsive 

almost immediately.” (Steiber Test., R. 717, Page ID ##5510–11). 

Pointer was taking Suboxone and Adderall at the time of both overdoses. At the hospital, 

Pointer’s urinalysis drug screen tested positive for amphetamines, cannabinoids, and cocaine—

but not opiates. Even so, Dr. Mills said that Pointer’s responsiveness to Narcan indicated that 

she overdosed on opioids and that, unlike heroin, fentanyl “is not detected by that particular 

[urinalysis] drug screen.” (Mills Test., R. 703, Page ID ##3874–75, ##3877–78). He said that 

the cocaine and amphetamines (Adderall) “played no role” in her overdose. (Id. at Page ID 

#3878). Dr. Mills did not offer an opinion on whether Suboxone contributed to either overdose, 

but he did say that Suboxone would not appear on a urine drug test. Dr. Mills concluded that 

Pointer’s second overdose was “consistent with an opioid poisoning” and that, without medical 

attention, “she could have died.” (Id. at Page ID #3875, #3878). 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 10

d) Anoosh Baghdassarian

Anoosh Baghdassarian died on March 30, 2016, at 19 years of age. Baghdassarian’s 

friend, Marko Tomic, said that he and Baghdassarian bought heroin from “Polo” the day before 

she died.4 Tomic testified that he drove to Baghdassarian’s house, she came outside and got into 

his car, they called “Polo,” and then they went to buy heroin near Six Mile Road in Detroit. 

They then returned to Baghdassarian’s house. Tomic used the drugs in his car outside 

Baghdassarian’s house, but Baghdassarian did not use her drugs immediately; rather, she took 

them inside with her. After Tomic used the drugs, he fell asleep in front of Baghdassarian’s 

house. When he awoke, he began driving home. The police stopped him and arrested him for 

possession of a controlled substance. They seized the drugs that Tomic bought earlier that day 

with Baghdassarian, and lab results showed that they were pure fentanyl.

At trial, Baghdassarian’s mother, Yvonne Baghdassarian, remembered that day somewhat 

differently. She recalled Marko Tomic—whom she called “Markos”—coming to their home 

around 4:30 p.m. (Yvonne Baghdassarian Trial Test., R. 721, Page ID #5648). But she said that, 

when he pulled up, she and Baghdassarian were in their car about to leave to take 

Baghdassarian’s brother to work. When Tomic arrived, Baghdassarian asked her mother to “just 

give [her] a minute.” (Id.) Baghdassarian walked to Tomic’s car, got inside, and “la[id] down 

under his window talking to him.” (Id.) After a few minutes, she got back in the car with her 

mother. In an earlier statement to police, Yvonne said that Tomic arrived at their home around 

3:30 p.m. and that Baghdassarian left with him for roughly one hour between 3:30 and 4:30 p.m. 

4The phone records do not show any calls to the x5598 or the x3399 number from either Baghdassarian’s 

or Tomic’s phone on March 29, 2016. Between March 31, 2015, and March 6, 2016, phone records revealed 903 

contacts between Tomic’s number and the x5598 and x3399 numbers. But there were no contacts between Tomic 

and those numbers after March 6, 2016. Baghdassarian had two different phone numbers during the relevant period. 

Between September 8, 2015, and February 14, 2016, there were 259 contacts between her two phones and the two 

“Polo” phones. But neither of Baghdassarian’s phone numbers had any contacts with the “Polo” phones after 

February 14, 2016.

But these “contacts” showed only phone calls and text messages, (Robert Witt Trial Test., R. 791, Page ID 

#8000), and one of Baghdassarian’s friends testified that Baghdassarian sometimes used an application on her phone 

to make phone calls. The phone data that investigators collected would not reflect any communication between 

Baghdassarian and the target phones that was conducted over a phone application—such as WhatsApp, GroupMe, or 

Facebook Messenger—rather than through a direct telephone call or text message. 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 11

However, at trial, Yvonne denied ever making that statement and said that Baghdassarian never 

left with Tomic.

After Tomic left, Baghdassarian left with her mother. They dropped off her brother and 

picked up food from a McDonald’s restaurant before returning home around 9:00 p.m. Shortly 

thereafter, she told her mother that she was not feeling well and went to bed. Her mother stayed 

awake until 3:00 a.m. and twice saw Baghdassarian come out of her room to get water. Her 

mother left around 7:00 a.m. the next morning to pick up Baghdassarian’s brother from work. 

Around 9:00 a.m., Yvonne saw Baghdassarian in the kitchen eating leftover food from 

McDonald’s. But Baghdassarian subsequently went back to bed. When Yvonne went to check 

on Baghdassarian around 1:00 p.m., she found Baghdassarian face down on the floor and called 

9-1-1. Between 9:00 p.m. on March 29 and 1:00 p.m. on March 30, Yvonne never saw 

Baghdassarian leave the house, never saw anyone come to the house, never saw Baghdassarian 

meeting anyone, and never saw anyone giving her anything.

Officer Accivetti responded to the 9-1-1 call and found Baghdassarian in a cluttered 

bedroom and believed, upon seeing her, that she was already dead. He saw “a syringe near the 

deceased body on the floor, as well as a cigarette pack containing a bottle cap and some residue 

inside of it.” (Michael Accivetti Trial Test., R. 721, Page ID #5721). He said that these items 

are “commonly used to mix narcotics in, to inject inside the needle.” (Id. at Page ID #5722). 

These items were not taken into evidence or tested because Officer Accivetti did not collect 

them, believing that an evidence technician would do so.

When paramedics arrived, they found Baghdassarian pulseless and breathless. They 

attempted to revive her with Narcan, but they were unsuccessful, and doctors declared her dead 

when she arrived at the hospital. The medical examiner’s blood toxicology report found 

11 nanograms of fentanyl per milliliter of blood and 15 nanograms of alprazolam (Xanax) per 

milliliter of blood. Three nanograms of fentanyl per milliliter is considered a fatal dose. The 

medical examiner testified that Baghdassarian’s Xanax levels were “less than therapeutic”—or 

less than a safe prescription dosage—and concluded that she died of a fentanyl overdose. 

(Bernardine Pacris Trial Test., R. 723, Page ID #6047).
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 12

5. Demarco Tempo’s Involvement with “Polo”

Tempo was widely known by the nickname “Polo.” It started as “Marco Polo” but 

became just “Polo” over the years. (William Dennis, Sr. Trial Test., R. 713, Page ID #5179). As 

early as 2009, William Dennis, Sr.—the father of Tempo’s half-brother—saw Tempo cut up 

heroin, place it in small plastic bags, bundle those small bags together, and package them “into a 

sandwich bag for sale.” (Id. at Page ID ##5134–35, ##5140–41). Dennis also saw Tempo 

selling crack cocaine as early as 2013. Indeed, Dennis used to cook crack cocaine with Tempo, 

which Tempo later sold.

Amacio Alexander—a “Polo” runner—identified Tempo in open court as the man to 

whom his boss, Mr. Howard, answered. Alexander interacted with Tempo a few times while 

selling drugs on Hamburg Street. The first time, Tempo turned to Alexander and told him that 

selling drugs “is grown-men business.” (Alexander Test., R. 705, Page ID #4038). The second 

time, Alexander handed the money from his drug sales directly to Tempo. Finally, Tempo gave 

Alexander a phone to use while selling drugs, and Tempo called that phone to tell Alexander 

when customers were coming.

Other witnesses saw Tempo when they bought drugs from “Polo.” During three 

undercover purchases in 2016, Officer Villerot saw Tempo driving the car as a passenger made 

the drug sales. Once, Officer Villerot saw the passenger hand Tempo the money from the sale. 

Phone tracking data put Tempo at the location of this deal at that time. Officer Villerot also 

identified Tempo’s voice in recorded calls from the FBI’s 2013 undercover purchases and his 

2016 undercover purchases. 

As early as 2009, Tempo listed his personal phone number as the x5598 “Polo” number. 

Tempo often carried two phones in his hands, and geolocation data showed that the x5598 phone 

and the x3399 phone were always together. Using geolocation data, police officers located the 

phones and used that information to pull Tempo over as he was driving home from a trip to 

Chicago. When Tempo got back from Chicago, officers tracked the phones as they stopped at 

each suspected “Polo” stash house “like clockwork.” (Craig Bankowski Trial Test., R. 708, Page 

ID #4427).
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 13

Witnesses said Tempo’s phone was always ringing, with calls coming in every minute. 

After taking a call, he would “tell one of the other guys around to go meet somebody 

somewhere.” (Dennis Test., R. 713, Page ID #5158). Tempo occasionally entrusted the phones 

to “certain people,” but he was selective about who he trusted for this task. (Id. at Page ID 

#5163). When officers arrested Tempo on June 14, 2016, they found both the x3399 and the 

x5598 phones in the center console of his car. The phones “wouldn’t stop ringing” and 

“consistently rang” until an officer turned them off. (Villerot Test., R. 710, Page ID ##4683–

84). 

On June 14, 2016, officers searched various properties that had ties to “Polo” drug deals 

and to Tempo personally.

15431 Spring Garden. Tempo bought this property from William Dennis. The DEA 

searched it and found a digital scale with white residue, large and small plastic bags, razor blades 

with white residue, and “other drug packaging material.” (Kevin Dailey Trial Test., R. 711, Page 

ID ##4859–61).

19504 Strasburg. This house was seemingly vacant; no utilities ran to it, and it had a “for 

rent” sign out front. (Bankowski Test., R. 708, Page ID #4410). It is located within 1000 feet of 

a school. In 2014 and again in early 2016, Tempo paid Dennis to do some repairs on the 

property. While working, Dennis often saw Tempo in the house with other people. At times, 

Dennis saw large quantities of drugs and people packaging drugs into small plastic bags. Once, 

when Tempo was at the house, Dennis saw someone put a substance into his mouth, taste it, and 

then spit it out, saying: “That’s that fentanyl, I don’t want none of that shit.” (Dennis Test., R. 

713, Page ID #5171). Tempo responded by saying: “That’s that strong[;] [t]hat’s what 

everybody want.” (Id.) 

Investigators said the house was a “Polo” “stash location” that operated “almost like a 

dispatch center.” (Bankowski Test., R. 708, Page ID #4352, #4357). Surveillance showed 

Tempo at the property “at least once a day.” (Id. at Page ID #4413). “Polo” members and 

runners—those involved in “hand-to-hand drug transactions,” (id. at Page ID #4363)—frequently 

came and went from the property. When officers searched it, they found: 16.7 grams of cocaine 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 14

in a nickel-sized plastic bag, 138.3 grams of crack cocaine on a plate, a digital scale, razor 

blades, and plastic bags with white powder residue. 

24343 Flower. On May 23, 2016, during a traffic stop, Tempo told police that he resided 

at this home with a woman named Tachelle Harris. When officers searched the house on June 

14, 2016, they found 379.8 grams of cocaine in a plastic bag with Tempo’s fingerprints on it. 

The bag was in a shoebox under the bed in the master bedroom. Officers also found two digital 

scales in a cabinet and court documents with Tempo’s name on them. 

12634 Hamburg. “Polo” often sold drugs on Hamburg Street. A police informant bought 

drugs there as early as November 1, 2013, and Officer Villerot bought drugs there as late as May 

30, 2016. When customers went to Hamburg, they were sometimes told to park in front of, or 

even go inside, a blue house to buy drugs. On one occasion, “one of the people in the [“Polo”] 

organization” told a “Polo” customer, who was experiencing withdrawal symptoms, that she 

could go inside the house to use the heroin she bought. (Palazzola Test., R. 715, Page ID 

#5357). That customer used drugs in the house many times between late 2015 and early 2016, 

and she said that the house was vacant. When officers searched the property on June 14, 2016, 

they found digital scales, drug packaging materials, clear plastic bags, multiple dishes with 

suspected drug residue, and razor blades. 

6. Kenneth Sadler’s Involvement with “Polo”

Sadler’s involvement with the drug scene traces back to 2009, when William Dennis saw 

Sadler with Tempo as Tempo cut heroin. Between 2009 and 2010, and again in 2015, Sadler 

told Dennis that “he could give [Dennis] the good heroin.” (Dennis Test., R. 713, Page ID 

#5146). In 2012, an informant working with the Sterling Heights Police Department set up two 

undercover purchases and bought $120 worth of heroin from Sadler. Sadler met the informant in 

a Meijer parking lot in Sterling Heights. He showed up in a car driven by a woman with children 

in the back seat. The police arrested Sadler for these sales. The Sterling Heights investigation 

was a “short term investigation;” it was not a part of a larger “Polo” investigation, and the officer 

did not know what phone number had been called to set up the deal. (Jason Modrzejewski Trial 

Test., R. 706, Page ID ##4279–81). 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 15

Alexander never saw Sadler involved with “Polo” deals or with Alexander’s drug sales 

on Hamburg Street. When Dennis saw Tempo send runners to meet customers, Tempo never 

sent Sadler. Sometime in 2009 or 2010, Dennis saw Sadler arguing with Tempo for control of 

the “Polo” phones and customer base. Dennis also saw Sadler get angry when Tempo entrusted 

other people, but not Sadler, with more responsibility within “Polo” operations. 

On June 14, 2016, police arrested Tempo and found both phones. But one day later, the 

police received an “updated GPS ping” on the x3399 phone, showing that the phone tied to that 

number was no longer in the police station but was now at 15652 Eastburn. (Villerot Test., 

R. 711, Page ID ##4932–34). Officer Villerot called the x3399 number, trying to set up another 

undercover purchase. A person answered the phone and directed him to a location. But when 

Officer Villerot called the x3399 number after he arrived, the person directed him to a different 

location. After repeating this process two or three times, Officer Villerot abandoned the 

operation.

While Officer Villerot was trying to set up a purchase, other officers were surveilling the 

15652 Eastburn house. They saw a man leave the house and get into a black Escalade. Police 

stopped that vehicle and found Sadler driving. Geolocation data put the x3399 number at the 

same location during the traffic stop. Officer Villerot called the x3399 number and saw the 

phone in the center console of the car ringing with Officer Villerot’s phone number displayed as 

the caller. The same process identified the x5598 phone in the center console. Officers then 

arrested Sadler.

Earlier surveillance of “Polo” operations saw the same black Escalade—identified by its 

VIN and license plate number—near various “Polo” drug deals. When police searched the 

15652 Eastburn house, they found a digital scale—which is “commonly used for the weighing or 

separating of narcotics for prepackaged sales,” (Nicholas Lienemann Trial Test., R. 713, Page ID 

#5088)—a large bag with drug residue, sandwich bags, Noscapine—which is a popular heroin 

cutting agent—and a firearm and ammunition. Forensic testing found Sadler’s DNA on the 

firearm. Sadler’s children lived in this house with their mother, and officers found documents 

and other evidence indicating that Sadler resided there.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 16

B. Witness Tampering

Two days after Sadler’s arrest on June 15, 2016, the court released him on bond. On June 

19, 2016, Sadler approached Alexander while Alexander was at his aunt’s house. Sadler drove 

up to the house in a black truck and, without getting out of the vehicle, approached Alexander 

and said, “Take back what you said. Don’t go to court or your family going to see your face on a 

T-shirt.” (Alexander Test., R. 705, Page ID #4064). Alexander believed this referred to 

“memorial T-shirt[s]” and believed it was a death threat. (Id.) The geolocation data on Sadler’s 

phone confirmed that he was near Alexander’s aunt’s house around the time of this incident. 

On March 23, 2018, Sadler’s attorney—Doraid Elder—gave Sadler the witness list in this 

case and reviewed grand jury testimony with him, including testimony from William Dennis. 

Around that time, Francine Leatherwood, Dennis’ mother, got a phone call from Sadler and his 

mother, Sheila Frill. Leatherwood knew them both well and recognized their voices. During the 

call, Sadler and Frill told Leatherwood that Dennis agreed to testify against Tempo and Sadler. 

They did not ask her to do anything, and they did not threaten her. After four to five minutes, 

Leatherwood ended the conversation by telling Sadler and Frill that she could not control her son 

and there was nothing she could do if Dennis wanted to testify. “[R]ight after” that phone call 

ended, Leatherwood got another call from a person whose voice she did not recognize. 

(Francine Leatherwood Trial Test., R. 791, Page ID ##7875–76). When she answered, the caller 

said, “Tell William to shut up or one of y’all are going to go missing.” (Id. at Page ID #7875). 

The caller then immediately hung up.

Within a few days of this call, Sadler sent Andrea Leatherwood, Dennis’ sister, a 

Facebook message stating: “That’s crazy how your brother are main witness, but we telling on 

him. Little bro turn in his grave, that’s how shit . . . .” (Andrea Leatherwood Trial Test., R. 791, 

Page ID ##7883–84, ##7890–91). She discussed the incident with her mother, Francine 

Leatherwood, and they realized that the Facebook message and phone call came just days apart. 

At that point, they notified the police about the messages and calls.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 17

C. Procedural Background

A grand jury indicted Sadler and Tempo—along with several other co-Defendants—on 

drug and firearm-related offenses. Based on Sadler’s conduct while released on bond, the 

government brought additional charges against him for witness tampering and obstruction of 

justice. Sadler and Tempo proceeded to trial on all counts. Before trial, the district court denied 

Sadler’s motion to exclude the testimony of his former attorney, Doraid Elder. At trial, the court 

overruled Sadler’s objections concerning evidence of two drug sales to an undercover Sterling 

Heights police officer in 2012. 

At the close of the government’s evidence, both Defendants moved for judgments of 

acquittal under Federal Rule of Criminal Procedure 29. The district court reserved ruling on the 

motions until after trial, and ultimately denied both motions. 

The jury convicted Tempo on seven counts: one count of drug conspiracy under 

21 U.S.C. §§ 841(b)(1)(A)–(C), 846; five counts of drug possession and distribution under 

§ 841(a)(1), (b)(1)(C); and one count of drug possession and distribution near a school under 

§§ 841, 860. The court sentenced him to 30 years of imprisonment. The jury convicted Sadler 

on six counts: one count of drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; one 

count of drug possession and distribution near a school under §§ 841, 860; one count of 

possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1); one count of conspiracy 

to obstruct justice under 18 U.S.C. § 1512(k); and two counts of tampering with witnesses under 

18 U.S.C. § 1512(a)(2)(A). The court sentenced him to 20 years of imprisonment for the drug

conspiracy and distribution offenses, 10 years of imprisonment for the firearm offense, and 

5 years of imprisonment for the obstruction of justice charges. 

On both Defendants’ conspiracy charges, the jury found that the crimes “resulted in the 

death . . . [and] serious bodily injury of another person.” (Def. Tempo Jury Verdict, R. 665, Page 

ID #3629; Def. Sadler Jury Verdict, R. 667, Page ID #3643). On Tempo’s drug distribution 

charges, the jury found that one count “resulted in . . . death” and four counts “resulted in . . . 

serious bodily injury.” (Def. Tempo Jury Verdict, R. 665, Page ID ##3629–31).
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 18

Several months later, both Defendants filed motions for a new trial, which the district 

court denied. Both Defendants filed timely notices of appeal to this Court. 

II. DISCUSSION

Defendants raise multiple challenges to their convictions and sentences. First, both argue 

that their convictions were not supported by sufficient evidence. Second, Sadler raises two 

evidentiary challenges. Third, both Defendants claim that the district court gave erroneous jury 

instructions. Finally, Tempo argues that he was sentenced under an unconstitutionally vague 

sentencing provision.

A. Sufficiency of the Evidence

In challenges under Federal Rule of Criminal Procedure 29, we review “de novo the 

sufficiency of the evidence to sustain a conviction.” United States v. Emmons, 8 F.4th 454, 477 

(6th Cir. 2021) (quoting United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009)). When a 

defendant also argues that he was entitled to a new trial under Federal Rule of Criminal 

Procedure 33, the district court’s decision “is reviewed for abuse of discretion and granted only 

‘in the extraordinary circumstances where the evidence preponderates heavily against the 

verdict.’” United States v. LaVictor, 848 F.3d 428, 455–56 (6th Cir. 2017) (quoting United 

States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007)).

Under Rule 29, notwithstanding the jury verdict, “the court on the defendant’s motion 

must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain 

a conviction.” Fed. R. Crim. P. 29(a). “[A] defendant claiming insufficiency of the evidence 

bears a very heavy burden.” Emmons, 8 F.4th at 478 (quoting United States v. Abboud, 438 F.3d 

554, 589 (6th Cir. 2006)). “In reviewing the sufficiency of the evidence, the relevant inquiry is 

whether, after reviewing 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.” 

Id. at 477–78 (quoting United States v. Wallace, 597 F.3d 794, 800 (6th Cir. 2010)). 

“All reasonable inferences must be made to support the jury verdict.” LaVictor, 848 F.3d at 456 

(citing United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010)). “Circumstantial evidence 

alone is sufficient to sustain a conviction and such evidence need not remove every reasonable 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 19

hypothesis except that of guilt.” Id. (quoting United States v. Spearman, 186 F.3d 743, 746 (6th

Cir. 1999)). When considering the sufficiency of the evidence, we cannot “reweigh the 

evidence, reevaluate the credibility of witnesses, or substitute [our] judgment for that of the 

jury.” Emmons, 8 F.4th at 478 (quoting United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 

2015)). Defendants challenge each of their convictions.

1. Drug Conspiracy

Both Defendants argue that their conspiracy convictions under 21 U.S.C. §§ 841 and 846 

were not supported by sufficient evidence. Those sections prohibit conspiracies to distribute a 

controlled substance or possess a controlled substance with the intent to distribute. §§ 841(a)(1), 

846. “[T]o sustain a conviction for drug conspiracy under section 846, the government must 

prove beyond a reasonable doubt: (1) an agreement to violate drug laws; (2) knowledge of and 

intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Williams, 

998 F.3d 716, 728 (6th Cir. 2021) (quoting United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 

2007)). “An agreement can be tacit, not formal, and the ‘government may meet its burden of 

proof through circumstantial evidence.’” Id. (quoting United States v. Layne, 192 F.3d 556, 567 

(6th Cir. 1999)). In § 846 conspiracy cases, “circumstantial evidence that may establish that ‘a 

drug sale is part of a larger drug conspiracy’ includes advance planning, ongoing purchases or 

arrangements, large quantities of drugs, standardized transactions, an established method of 

payment, and trust between the buyer and seller.” Id. (quoting United States v. Deitz, 577 F.3d 

672, 680–81 (6th Cir. 2009)).

For starters, the jury could have found beyond a reasonable doubt that each “Polo” drug 

deal was “part of a larger drug conspiracy.” Williams, 998 F.3d at 728. “Polo” drug deals 

required significant advance planning. Drugs were individually packaged and prepared in 

advance so that runners could make multiple sales before needing to replenish their stock. When 

customers called either “Polo” phone, they were directed to a specific location where a runner 

was nearby or waiting for them. “Polo” continuously sold drugs for many years. Customers 

often bought drugs from “Polo” hundreds of times over the course of three to four years. The 

sales were standardized. Indeed, customers used nearly identical procedures to buy drugs from 

“Polo.” “Polo” also handled large quantities of drugs. A single “Polo” runner would sell 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 20

between 150 and 200 individual bags of drugs each day. The method of payment was consistent; 

each individual plastic bag of heroin consistently cost $20, and customers paid the runner in cash 

each time. Finally, customers found “Polo” to be a reliable system, and both the person 

answering the “Polo” phones and the runners came to recognize loyal customers. 

Even though the evidence sufficiently showed that the “Polo” conspiracy existed, the 

government still had to prove that each Defendant joined that conspiracy. “[O]nce the existence 

[of] a conspiracy is shown, the evidence linking an individual defendant to that conspiracy need 

only be slight.” United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (citing United States v. 

Henley, 360 F.3d 509, 514 (6th Cir. 2004)). We address each Defendant in turn.

a) Demarco Tempo

The evidence sufficiently showed that Tempo was a member of the “Polo” conspiracy. 

Tempo went by the nickname “Polo,” and two insider witnesses testified that Tempo led all 

“Polo” operations. Dennis saw Tempo package and prepare drugs for sale. Tempo controlled 

the “Polo” phones. Records tie him to the x5598 “Polo” number as early as 2009. Geolocation 

data puts the x5598 phone, the x3399 phone, and Tempo in the same place on multiple 

occasions, and police found both of those phones in Tempo’s car when they arrested him. The 

only way that customers could buy drugs from “Polo” was by calling one of those two phones. 

Dennis saw Tempo answer his phones and immediately send runners to meet customers. While 

some customers said that multiple people answered the “Polo” phones, many said the same 

person answered most of the time. The same person answered each time Officer Villerot called 

to set up an undercover buy, and Villerot later identified that speaker as Tempo. The jury could 

have weighed this evidence and concluded that Tempo personally controlled those phones, the 

key to “Polo’s” success.

Witnesses also saw Tempo at the scene during some sales. One saw a runner hand 

money from a drug deal directly to Tempo. Alexander said that he did that himself. Tempo 

oversaw runners in other ways too. Tempo gave Alexander a phone to use for drug deals and 

told him that selling drugs was “grown-men business.” (Alexander Test., R. 705, Page ID 

#4038). Even if Tempo never engaged in the hand-to-hand drug deals himself, the evidence 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 21

sufficiently supports a finding that Tempo agreed with others—including runners and 

customers—to violate drug laws and that he knew about and participated in the “Polo” 

conspiracy. Tempo makes three specific arguments challenging this finding. Each is meritless.

First, he argues that the government’s evidence “showed the existence of multiple 

conspiracies, not a single conspiracy as charged in the indictment.” (Def. Tempo Br. at 25). He 

argues that this mismatch between the indictment and the evidence was a prejudicial variance. 

Because Tempo did not raise this argument at trial, we review this allegation of a variance for 

plain error. Caver, 470 F.3d at 235. “A variance to the indictment occurs when the charging 

terms of the indictment are unchanged, but the evidence at trial proves facts materially different 

from those alleged in the indictment.” Id. “Within the context of a conspiracy, a variance 

constitutes reversible error only if a defendant demonstrates that he was prejudiced by the 

variance and that the ‘indictment allege[d] one conspiracy, but the evidence can reasonably be 

construed only as supporting a finding of multiple conspiracies.’” Id. at 235–36 (alteration in 

original) (quoting United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982)). “We ‘review the 

evidence as to the number of conspiracies in the light most favorable to the government, 

considering ‘the existence of a common goal, the nature of the scheme, and the overlapping of 

the participants in various dealings.’” Williams, 998 F.3d at 730 (quoting United States v. 

Williamson, 656 F. App’x 175, 183 (6th Cir. 2016)).

Tempo asks us to focus on the relationship between him and the customers. He argues 

that this case presents a “rimless” wheel-and-spoke conspiracy “in which various defendants 

enter into separate agreements with a common defendant, but where the defendants have no 

connection with one another, other than the common defendant’s involvement in each 

transaction.” (Def. Tempo Br. at 26–27 (quoting Dickson v. Microsoft Corp., 309 F.3d 193, 203 

(4th Cir. 2002))). But “[a] single conspiracy does not become multiple conspiracies simply 

because each member of the conspiracy did not know every other member, or because each 

member did not know of or become involved in all of the activities in furtherance of the 

conspiracy.” Caver, 470 F.3d at 236 (quoting Warner, 690 F.2d at 549). Tempo’s argument 

ignores middlemen and runners like Mr. Howard and Alexander—with whom Tempo 

coordinated. Even if each “Polo” member did not know every other member or participate in 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 22

every aspect of the conspiracy, the evidence sufficiently shows that “Polo” operations were 

interdependent and relied on a steady customer base, runners and middlemen, and higher-ups to 

answer the “Polo” phones, ensure runners had sufficient supplies, and choose the locations for 

deals. Thus, the jury could have found, beyond a reasonable doubt, that there was a single 

conspiracy to distribute and sell controlled substances based on evidence of “a regular pattern of 

distribution for a large quantity of drugs.” Caver, 470 F.3d at 236. 

Second, Tempo argues that he never conspired to distribute fentanyl in particular. But 

this proposition is both factually and legally flawed. Legally, “knowledge and intent to join the 

conspiracy includes that the defendant ‘was aware of the object of the conspiracy and that he 

voluntarily associated himself with it to further its objectives.” Williams, 998 F.3d at 729 

(quoting United Sates v. Hodges, 935 F.2d 766, 772 (6th Cir. 1991)). “[T]he government need 

not prove mens rea as to the type and quantity of the drugs in order to establish a violation of 

§§ 841 and 846.” Id. (internal quotation marks omitted) (quoting United States v. Villarce, 

323 F.3d 435, 439 & n.1 (6th Cir. 2003)). Therefore, even if Tempo was not personally aware 

that “Polo” was selling fentanyl, or cutting heroin with fentanyl, evidence showed that he 

“conspired to violate drug laws,” even if he did not conspire to distribute fentanyl specifically. 

See Williams, 998 F.3d at 728–29. Factually, the evidence showed that Tempo did know that 

“Polo” sold fentanyl. Dennis testified that—while doing repairs for Tempo at a suspected stash 

house—someone put a substance in his mouth and spit it out, saying, “That’s that fentanyl, 

I don’t want none of that shit.” (Dennis Test., R. 713, Page ID #5171). Tempo responded by 

saying, “That’s that strong[;] [t]hat’s what everybody want.” (Id.) We will not reweigh the 

weight and credibility of Dennis’ testimony, see Emmons, 8 F.4th at 478, and a rational jury 

could have relied on his testimony to conclude that Tempo was aware that “Polo” laced heroin 

with fentanyl or sold pure fentanyl.

Finally, at base, Tempo asks us to reweigh the evidence and reevaluate the witnesses’ 

credibility. Tempo highlights that Dennis and Alexander only testified to get lesser sentences in 

their own criminal cases and that “the rewards for these individuals were so substantial that they 

could not help but conform their testimony to the government’s theory of the case.” (Def. 

Tempo Br. at 29). He further suggests that Officer Villerot’s voice-identification testimony—
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 23

identifying Tempo as the person answering the x3399 number during eighteen controlled 

purchases in 2016 and two controlled purchases in 2013—was not reliable because Officer 

Villerot had “only two brief contacts with Mr. Tempo and no expertise in voice identification.” 

(Id. at 28). But “determining the credibility of witnesses is a task for the jury, not this court.” 

United States v. Beverly, 369 F.3d 516, 532 (6th Cir. 2004) (citing United States v. Hilliard, 

11 F.3d 618, 620 (6th Cir. 1993)); see also United States v. Eaton, 784 F.3d 298, 305 (6th Cir. 

2015) (refusing to entertain the defendant’s argument that the jury should not have relied on 

inconsistent testimony from two “admitted perjurers” because “[t]he jury was entitled to believe 

the trial testimony of the two [witnesses]”).

b) Kenneth Sadler

Although a closer call, sufficient evidence also supported Sadler’s conspiracy conviction. 

Sadler argues that no rational jury could have found beyond a reasonable doubt that he knew 

about and intended to join the “Polo” conspiracy or that he participated in that conspiracy. 

“Knowledge and participation can be inferred from the defendant’s conduct, but mere 

association with members of the conspiracy is not enough to support such an inference.” United 

States v. Martinez, 430 F.3d 317, 334 (6th Cir. 2005) (citing United States v. Pearce, 912 F.2d 

159, 162 (6th Cir. 1990)). “To be sure, knowledge and intent to join the conspiracy includes that 

the defendant ‘was aware of the object of the conspiracy and that he voluntarily associated 

himself with it to further its objectives.’” Williams, 998 F.3d at 729 (quoting Hodges, 935 F.2d 

at 772). The defendant must be aware of the conspiracy’s “ultimate purpose.” Id. (quoting 

United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010)). In a sprawling drug conspiracy like 

“Polo,” “it is enough to show that each member of the conspiracy realized that he was 

participating in a joint venture, even if he did not know the identities of every other member, or 

was not involved in all the activities in furtherance of the conspiracy.” Martinez, 430 F.3d at 

332–33.

As discussed above, there is sufficient evidence demonstrating the existence of a “Polo” 

conspiracy. The question as to Sadler is whether there was even a “slight” connection tying him 

to that conspiracy. See Caver, 470 F.3d at 233 (“[O]nce the existence [of] a conspiracy is 

shown, the evidence linking an individual defendant to that conspiracy need only be slight.” 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 24

(citing Henley, 360 F.3d at 514)). A rational jury could have found that Sadler knew the 

“ultimate purpose” of the conspiracy—to sell controlled substances—and that he intended to join 

and participated in the conspiracy. As early as 2009—before the start of the alleged 

conspiracy—Dennis saw Sadler with Tempo as Tempo cut up heroin and packaged it for sale. 

Evidence also showed that Sadler wanted to be involved with “Polo.” At times, Sadler got angry 

when Tempo entrusted other people, but not Sadler, with more responsibility within “Polo” 

operations, and Sadler fought with Tempo over control of the “Polo” phones and customer base. 

This evidence shows Sadler’s agreement with “Polo” members and his intent to join the 

conspiracy.

Evidence also showed that Sadler actually participated in the conspiracy. After police 

arrested Tempo on June 14, 2016, geolocation data showed that the x3399 “Polo” number moved 

to 15652 Eastburn, an address that Sadler often visited (and possibly where he resided), and 

where his children lived with their mother. When Officer Villerot called the x3399 number 

trying to set up another undercover purchase on June 15, 2016, a man answered the phone and 

directed Officer Villerot to a location. Ultimately, Officer Villerot abandoned this undercover 

purchase. Around the same time, officers saw Sadler leave the Eastburn house in a black 

Escalade that officers had previously seen near “Polo” drug sales. Officers pulled Sadler over 

and found both “Polo” phones in the car. When police searched the 15652 Eastburn residence, 

they found a digital scale, a large bag with drug residue, sandwich bags, Noscapine—which is a 

popular heroin cutting agent—documents with Sadler’s name on them, and a firearm and 

ammunition. The jury heard evidence that these objects are commonly associated with drug 

trafficking.5 While these facts may not be enough, standing alone, to support the jury’s 

conviction, together, this evidence shows that Sadler sought out more involvement and 

leadership within “Polo” and that he attempted to take over “Polo” operations after many “Polo” 

5The government also points to evidence from two undercover drug purchases involving Sadler in 2012. 

During a “short term investigation,” an informant with the Sterling Heights Police Department bought $120 worth of 

heroin from Sadler. (Modrzejewski Test., R. 706, Page ID #4279, #4286). Sadler argues that this evidence was 

inadmissible. As discussed below, the district court abused its discretion by admitting this evidence. See infra Part 

II.B.1. Ultimately, however, there was sufficient evidence of Sadler’s involvement in the conspiracy even absent 

this fact.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 25

members were arrested on June 14, 2016. Combined, this amounts to sufficient evidence 

supporting the jury’s verdict.

Sadler’s arguments do not undermine these key facts. Sadler points out that Alexander 

never saw Sadler involved with any “Polo” deals, and Tempo never used Sadler as a runner. But 

this evidence does not mean that Sadler could not have knowingly and intentionally joined the 

“Polo” conspiracy, nor does it preclude his involvement in other ways. See Martinez, 430 F.3d 

at 332–33. The combination of Sadler’s desire for leadership within “Polo,” his possession of 

drug trafficking paraphernalia, and his possession of the “Polo” phones provided sufficient 

evidence for the jury to conclude beyond a reasonable doubt that Sadler was a co-conspirator.

2. Drug Distribution Causing Serious Bodily Injury or Death

Tempo next argues that there was insufficient evidence to support his five charges under 

21 U.S.C. § 841(a)(1), (b)(1)(C). He raises two issues in this regard: (1) whether he can be held 

liable for every “Polo” drug distribution under § 841(a), and (2) whether “Polo” drugs caused the 

death and injuries of the four overdose victims as required under § 841(b)(1)(C). 

a) Distribution

Section 841(a)(1) prohibits the knowing or intentional distribution, or possession with the 

intent to distribute, of a controlled substance. 21 U.S.C. § 841(a)(1). There is no dispute that 

heroin, fentanyl, and crack cocaine are controlled substances. See § 812. As the district court 

instructed, there were three ways the government could have proven that Tempo was guilty of 

this crime:

The first is by convincing [the jury] that [Tempo] committed or participated in 

this crime. The second is by showing that [Tempo] aided and abetted the 

commission of the charged offense. The third is based on the legal rule that all 

members of a conspiracy are responsible for acts committed by the other 

members, as long as those acts are committed to help advance the conspiracy, and 

are within the reasonably foreseeable scope of the agreement. This is often called 

“Pinkerton Liability.”

(Jury Instrs., R. 662, Page ID #3580). Sufficient evidence would allow a jury to conclude, 

beyond a reasonable doubt, that Tempo was liable under any of these three theories.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 26

First, the facts show that Tempo acted as a principal—meaning a jury could have found 

him personally liable for distributing “Polo” drugs. The applicable statute defines “distribute” as 

“to deliver,” which in turn “mean[s] the actual, constructive, or attempted transfer of a controlled 

substance . . . , whether or not there exists an agency relationship.” 21 U.S.C. § 802(8), (11). 

“Although distribution may involve the actual or constructive possession of a controlled 

substance, ‘distribution’ includes other acts perpetrated in furtherance of a transfer or sale, such 

as arranging or supervising the delivery, or negotiating for or receiving the purchase price.” 

United States v. Colon, 268 F.3d 367, 377 (6th Cir. 2001). “Although it may be unusual for a 

person to distribute a controlled substance without at least momentarily possessing the controlled 

substance, it is not impossible.” Id. (quoting United States v. Jackson, 213 F.3d 1269, 1296–97 

(10th Cir. 2000)); see also United States v. Waller, 503 F.2d 1014, 1015–16 (7th Cir. 1974) 

(finding constructive transfer when a mother told her daughter to hand the drugs to the buyer).

Under this theory, the jury could have found that Tempo constructively distributed all of 

the drugs “Polo” sold because he planned and coordinated “Polo” drug deals. Tempo answered 

the “Polo” phones to set up buys; Tempo told runners to go meet customers; witnesses identified 

Tempo as the head of the “Polo” operation; and Tempo gave runners phones to use while selling 

drugs. This evidence sufficiently shows that Tempo led “Polo” operations and constructively 

participated in all “Polo” sales. Moreover, distribution accounts for the actions of agents. See 

21 U.S.C. § 801(8). Thus, a jury could have found Tempo directly responsible for drug sales that 

“Polo” members conducted on Tempo’s behalf or at his behest.

Second, the jury could have found Tempo liable for aiding and abetting “Polo” drug 

sales. “To prove that [a defendant] aided and abetted drug transactions . . . the government must 

establish that [he] participated in the venture as something [] he wished to bring about and sought 

to make succeed.” Williams, 998 F.3d at 735 (quoting United States v. Ward, 190 F.3d 483, 487 

(6th Cir. 1999)). For the same reasons listed above, the jury could have found, beyond a 

reasonable doubt, that Tempo aided and abetted each “Polo” sale, including sales to the overdose 

victims.

Finally, the jury could have concluded that Tempo was liable as a co-conspirator under 

Pinkerton v. United States, 328 U.S. 640 (1946). “The Pinkerton doctrine permits conviction of 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 27

a conspirator for the substantive offenses of other conspirators committed during and in 

furtherance of the conspiracy.” United States v. Martin, 920 F.2d 345, 348 (6th Cir. 1990). “The 

doctrine holds that a member of a conspiracy is liable for ‘substantive offense[s]’ committed by 

his co-conspirators, even if he did not participate in them, as long as: (1) the offenses are ‘done 

in furtherance of the conspiracy,’ (2) they ‘fall within the scope of the unlawful project,’ and 

(3) they are reasonably foreseeable ‘consequence[s] of the unlawful agreement.’” United States 

v. Hamm, 952 F.3d 728, 744 (6th Cir. 2020) (quoting Pinkerton, 328 U.S. at 647–48). Certainly, 

“Polo” drug sales meet these requirements; the entire point of “Polo” was to sell drugs. As 

discussed above, the jury’s conclusion that Tempo was a member of the “Polo” conspiracy was

also supported by sufficient evidence. Therefore, under each of these three theories, a rational 

jury could have found beyond a reasonable doubt that Tempo was liable for each “Polo” sale—

including the sales to the overdose victims.

b) Resulting in Death or Serious Bodily Injury

While § 841(a)(1) states the offense, § 841(b)(1)(C) imposes an enhanced sentence. 

Section 841(b)(1)(C) imposes a 20-year mandatory minimum sentence if a defendant violates 

§ 841(a)(1) and “death or serious bodily injury results from the use of [the distributed] 

substance.” § 841(b)(1)(C). The death-or-injury-results enhancement “is an element that must 

be submitted to the jury and found beyond a reasonable doubt.” Burrage v. United States, 

571 U.S. 204, 210 (2014) (citing Alleyne v. United States, 570 U.S. 99, 115–16 (2013)). In 

Burrage, the Supreme Court held that, “at least where 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.”6 Id. at 218–19. “[B]utfor causation exists where use of the controlled substance ‘combines with other factors to 

6

“An independently sufficient cause is not quite the same thing as a but-for cause.” Hamm, 952 F.3d at 

738 n.3 (citing Antony Honoré & John Gardner, Causation in the Law, Stanford Encyclopedia of Philosophy 

(Winter 2010 ed.), https://plato.stanford.edu/archives/win2010/entries/causation-law/). Although suggesting that an 

independently sufficient cause would satisfy the “results from” requirement, the Supreme Court in Burrage did not 

address that question. See Burrage, 571 U.S. at 210. Here, there is likely sufficient evidence that heroin and/or 

fentanyl were sufficient independent causes of the victims’ overdoses. Even so, there is also sufficient evidence that 

those substances were the but-for cause of the victims’ overdoses. Thus, we need not reach the issue of independent 

sufficient cause at this time. See Hamm, 952 F.3d at 738 n.3. 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 28

produce’ death [or serious bodily injury], and death [or serious bodily injury] would not have 

occurred ‘without the incremental effect’ of the controlled substance.” United States v. Volkman, 

797 F.3d 377, 392 (6th Cir. 2015) (quoting Burrage, 571 U.S. at 211). The government does not 

need to prove that the defendant directly delivered the drug to the injured or deceased person or 

even that a co-conspirator handed the drug to that person. United States v. Davis, 970 F.3d 650, 

656 (6th Cir. 2020). Rather, “[t]he statute requires the government to prove only that the specific 

drug underlying a defendant’s violation of § 841(a) is the same drug that was the but-for cause of 

the victim’s death.” Id. The causation inquiry thus has two parts for each victim: (1) did the 

victim use “Polo” drugs, and (2) were those drugs the but-for cause of the victim’s overdose.

Before turning to these victim-specific questions, Tempo argues that the government 

cannot establish causation without a blood test identifying the substances in the victim’s body at 

the time of the overdose. Of the four overdose victims involved here, only one—Anoosh 

Baghdassarian—received a blood toxicology test,7 and only one received a urine toxicology test. 

The district court rejected this argument and concluded that “there is no legal requirement that 

blood tests be admitted to establish that a serious bodily injury or death resulted from the use of a 

substance distributed by Tempo.” United States v. Tempo, No. 16-cr-20414, 2019 WL 5896138, 

at *2 (E.D. Mich. Nov. 12, 2019) (citing Cockrell v. United States, No. 14-cv-175, 2017 WL 

1088339, at *3 (E.D. Tex. Mar. 22, 2017)). We likewise decline to adopt a bright-line rule that 

but-for causation under § 841(b)(1)(C) requires evidence from blood toxicology tests. This is a 

matter of first impression before us, but our sister circuits have found but-for causation in 

overdose cases even without blood tests. See United States v. Harris, 966 F.3d 755, 759, 762 

(8th Cir. 2020) (finding but-for causation based on victims’ testimony and recollection); United 

States v. Lewis, 895 F.3d 1004, 1006–07, 1009 (8th Cir. 2018) (finding but-for causation based 

on medical expert testimony and lab-tested paraphernalia found at the scene). Only the Fifth 

Circuit has directly addressed this question. United States v. Cockrell, 769 F. App’x 116, 118 

(5th Cir. 2019). In Cockrell, the Fifth Circuit found that, even despite “the lack of medical 

testing of the victims,” the victims’ positive reactions to Narcan showed that they overdosed on 

7The hospital ran a blood test on Jennifer Pointer, but it was not a blood toxicology test. Her doctors ran 

standard blood tests because she had pneumonia at the time. Dr. Mills relied on Pointer’s urinalysis tests—not the 

blood tests—to determine what drugs were in her system.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 29

opioids. Id. We agree with this conclusion. The absence of blood tests here does not undermine 

the jury’s finding that “Polo” drugs caused the victims’ overdoses. We must therefore determine 

whether sufficient evidence showed that each victim used “Polo” drugs and that those drugs 

caused the victim’s overdose. We have already presented many of the relevant facts. See supra

Part I.A.4.

i. Count 3: Christina Yako

Sufficient evidence supported the jury’s conclusion that Yako overdosed on drugs she 

bought from “Polo.” She and her friend, Randy Odish, both testified that they bought heroin 

from “Polo” on February 20, 2016, shortly before Yako overdosed. Phone records showed that 

Odish called the x3399 number that evening. Immediately after using those drugs, Yako “passed 

out,” “[h]er lips [turned] bluish-purple,” and “she [began] bleeding from her mouth.” (Odish 

Test., R. 717, Page ID ##5443–44). When the paramedics arrived, she was taking only six 

breaths per minute, which is not life-sustaining. The paramedics and the doctors at the hospital 

administered two doses of Narcan, at which point Yako became fully alert. Dr. Mills testified 

that her medical condition was consistent with an opioid overdose—either heroin or fentanyl—

and, without medical attention, she would have died.

In arguing that this evidence is insufficient, Tempo highlights that Odish’s memory was 

clouded by past drug use, that he was a convicted felon, and that he had previously lied to law 

enforcement. He also highlighted inconsistencies in Yako’s testimony about whether she or 

Odish called the “Polo” phone. But these arguments amount to “non-reviewable credibility 

questions.” United States v. Whyte, 795 F. App’x 353, 363–64 (6th Cir. 2019). Tempo also 

argues that there were no phone records produced for either Odish’s phone or Yako’s phone that 

evening. This is simply incorrect. Evidence showed that Odish’s phone had “seven contacts” 

with the x3399 “Polo” number on February 20, 2016. (Witt Test., R. 726, Page ID #6393).

Finally, Tempo argues that “because Yako injected Xanax all day long on February 20, 

2016, that drug could have independently caused” her overdose. (Def. Tempo Br. at 31). Yako 

admitted that she used Xanax that day, but the jury was entitled to credit Dr. Mills’ conclusion 

that Yako’s positive reaction to Narcan “shows that it was an opioid intoxication,” and that 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 30

“[t]here was no other explanation for [her reaction to Narcan].” (Mills Test., R. 703, Page ID 

#3865). The jury could have concluded that this evidence established but-for causation despite 

Yako’s Xanax use. See United States v. Smith, 656 F. App’x 70, 74 (6th Cir. 2016) (finding 

sufficient evidence of but-for causation when victim had “numerous substances in her body, 

including a lethal dose of oxycodone,” which was the drug the defendant allegedly distributed).

ii. Count 4: David Grzywacz

Sufficient evidence supported the jury’s conclusion that Grzywacz overdosed on drugs 

he bought from “Polo.” Grzywacz called the x5598 “Polo” number eight times on the day he 

overdosed. He used the drugs right away, and the next thing he remembers is waking up in the 

ambulance. When the paramedics arrived, he was taking only four breaths per minute, which is 

not life-sustaining. Paramedics administered Narcan, and Grzywacz’s breathing immediately 

improved. Dr. Mills testified that his medical condition was consistent with an opioid overdose 

and that he likely would have died without medical intervention. 

Again, Tempo asks us to discredit Grzywacz’s testimony because he is “a twice 

convicted felon,” he is a “daily heroin user,” and he seemingly received a lesser sentence in his 

own criminal case after he cooperated against Tempo. (Def. Tempo Br. at 31). Again, we do not 

entertain such credibility arguments. See Emmons, F.4th at 616. Tempo also highlights that 

Grzywacz “us[ed] the same syringe for over a month” to inject drugs. (Def. Tempo Br. at 32). 

He thus argues that “[t]here was no way to determine if residue of prior uses of other drugs 

remained in the syringe barrel or needle, and if they contributed to [Grzywacz’s] overdose.” 

(Id.) We generally reject these kinds of arguments as mere “speculative possibilities already 

rejected by the jury.” United States v. Assfy, — F. App’x —, No. 20-1630, 2021 WL 2935359, 

at *6 (6th Cir. July 13, 2021) (quoting United States v. Simer, 835 F. App’x 60, 65–66 (6th Cir. 

2020)). But, even if residue from other drugs got mixed up in the needle, that finding does not 

preclude but-for causation, which is met “where use of the controlled substance ‘combines with 

other factors to produce’” the overdose. Volkman, 797 F.3d at 392 (quoting Burrage, 571 U.S. at 

211). 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 31

iii. Counts 5 & 7: Jennifer Pointer

A rational jury could similarly conclude beyond a reasonable doubt that Pointer 

overdosed on drugs she bought from “Polo” on both March 17 and March 30, 2016. Pointer 

testified that she bought heroin from “Polo” at the intersection of Bradford Avenue and Bringard 

Drive on the day of her first overdose—March 17, 2016. She went home and snorted an entire 

$20 bag of heroin with her boyfriend. She testified that she did not buy drugs from any other 

dealer that day, and she did not use any other drugs. 

Paramedics arrived and found Pointer unresponsive and barely breathing with drug 

paraphernalia around her. They administered two doses of Narcan, and Pointer became 

responsive after the second dose. At the hospital, doctors administered a urine drug screen, 

which was positive for opiates and cocaine. Dr. Mills testified that Narcan would only have been 

effective if Pointer had overdosed on opiates; it would not have reversed a cocaine overdose. 

Dr. Mills concluded that Pointer’s March 17, 2016, overdose was consistent with a heroin or 

fentanyl overdose and that, without medical treatment, it was “[m]ore likely than not [that] she 

would have died.” (Mills Test., R. 703, Page ID #3873). Tempo argues that Pointer was also 

taking Adderall and Suboxone at the time, which “alone could have caused her overdose.” (Def. 

Tempo Br. at 32–33). He further argues that Pointer’s urinalysis drug test was “not reliable.” 

(Id. at 33). But—for the same reasons as discussed above with Yako and Grzywacz—a rational 

jury could find that the urinalysis results, along with Dr. Mills’ testimony, demonstrated that the 

“Polo” drugs were the but-for cause of Pointer’s overdose. See Volkman, 797 F.3d at 392.

On March 30, 2016, Pointer reported using Boose’s phone to call the x3399 “Polo” 

number. Phone records confirm that Boose’s phone called the x3399 number three times that 

day. Initially, police and paramedics arrived to treat Boose for an overdose. When police 

arrived, Pointer was still conscious. Police searched Pointer and found “a small fold paper, 

which is consistent with the packaging for heroin.” (Steiber Test., R. 717, Page ID ##5504–06). 

Officer Steiber seized the substance, and test results concluded that it was 0.028 grams of pure 

fentanyl, which is “nine to ten times the lethal dose of fentanyl to your average adult.” (Mills 

Test., R. 703, Page ID #3877). After Steiber handcuffed Pointer and put her in the back seat of 

the squad car, she fell unconscious. Paramedics administered two doses of Narcan, and after the 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 32

second dose, Pointer became responsive. Pointer’s urinalysis tested positive for amphetamine, 

cannabinoids, and cocaine—but not opiates. Even so, Dr. Mills testified that Pointer’s 

responsiveness to Narcan indicated that she had overdosed on opioids and that, unlike heroin, 

fentanyl “is not detected by that particular [urinalysis] drug screen.” (Mills Test., R. 703, Page 

ID ##3874–75, ##3877–78). He testified that the cocaine and amphetamines “played no role” in 

her overdose. (Id. at Page ID #3878). He said that her medical condition was “consistent with 

an opioid poisoning” and that, without medical attention, “she could have died.” (Id. at Page ID 

#3875, #3878).

Tempo points to the physical evidence to prove that Pointer’s second overdose did not 

involve drugs from “Polo.” He alleges that, because Pointer’s drugs were in a folded piece of 

paper, and not a small plastic bag like those used in all “Polo” sales, the drugs likely came from 

another source. But Pointer testified that she bought the heroin from “Polo” in a small plastic 

bag. She then took it out of the bag, placed it into a piece of paper, crushed it up, and snorted it 

out of the piece of paper. While Pointer did make some inconsistent statements about her 

practice of repacking her drugs into paper folds, the jury was justified in crediting her testimony 

that she bought drugs from “Polo” and repackaged them into a paper fold. For the same reasons 

as discussed above, Pointer’s positive drug test for cocaine does not preclude but-for causation. 

See Volkman, 797 F.3d at 392. Indeed, Dr. Mills testified that the cocaine and amphetamines 

“played no role” in her overdose. (Mills Test., R. 703, Page ID #3878).

iv. Count 6: Anoosh Baghdassarian

Finally, sufficient evidence supported the jury’s conclusion that “Polo” drugs caused 

Baghdassarian’s death. Baghdassarian died on March 30, 2016. The medical examiner who 

conducted the autopsy concluded that Baghdassarian died of a fentanyl overdose. Paramedics 

found Baghdassarian in her room at her mother’s house with drug paraphernalia around her. 

Paramedics attempted to revive her with Narcan, but they were unsuccessful, and the doctors 

declared her dead when she arrived at the hospital. The blood toxicology report showed eleven 

nanograms of fentanyl per milliliter and fifteen nanograms of alprazolam (Xanax) per milliliter. 

The Xanax dosage was at a safe, therapeutic level, whereas Baghdassarian’s fentanyl levels were 

three times higher than a fatal dose of three nanograms. 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 33

There is also sufficient evidence for a jury to conclude that Baghdassarian overdosed on 

fentanyl from “Polo.” Tomic testified that, on March 29, 2016—the evening before 

Baghdassarian died—he drove to Baghdassarian’s house, she came outside and got into Tomic’s 

car, they called “Polo,” and they bought drugs somewhere near Six Mile Road. Baghdassarian 

took her share of the drugs inside her house without using any while in Tomic’s car. That was 

around 3:30 or 4:30 p.m. on March 29. Baghdassarian’s mother testified that she saw 

Baghdassarian meet with Tomic in his car and that, for the rest of that evening and the following 

morning, she never saw Baghdassarian leave the house or meet with anyone else. Later that 

night, police stopped Tomic and arrested him for drug possession. The police seized the drugs 

that Tomic bought with Baghdassarian, and lab results showed that they were pure fentanyl. 

Even though Tomic thought they bought heroin, “Polo” occasionally sold pure fentanyl to 

unknowing customers. Based on these facts, a rational jury could have concluded that Tomic 

and Baghdassarian purchased drugs from “Polo” and that those drugs caused Baghdassarian’s 

overdose the next morning. 

Tempo argues that the government “failed to show that [Baghdassarian] obtained the 

heroin from the Polo group.” (Def. Tempo Br. at 33). First, he notes that Baghdassarian’s last 

contact with a “Polo” phone was on February 14, 2016, and Tomic’s last contact was on March 

6, 2016. However, sometimes Baghdassarian used a phone application (“app”) to contact 

“Polo,” and contacts through an app would not appear on the phone records. The jury could 

have inferred that the significant history of phone contacts between Baghdassarian, Tomic, and 

the “Polo” phones—amounting to over 1000 contacts—showed a pattern of using “Polo” to 

obtain drugs and indicated that the two bought drugs from “Polo” on March 29, just as Tomic 

said they did. Furthermore, while there are discrepancies between Tomic’s and Baghdassarian’s 

mother’s testimony as to when Tomic bought the drugs and whether Baghdassarian went with 

him, the jury could have weighed the evidence and concluded beyond a reasonable doubt that 

Baghdassarian died after overdosing on drugs that she and Tomic bought from “Polo.”

3. Drug Possession with Intent to Distribute Near a School

Both Defendants argue that there was insufficient evidence to support their drug

possession convictions under 21 U.S.C. §§ 841 and 860. Section 860 doubles the penalties for 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 34

certain drug crimes that occur within 1000 feet of a school. § 860(a). Defendants were charged 

with possessing cocaine and heroin at 19504 Strasburg. On June 14, 2016, officers searched that

property and found 16.7 grams of cocaine, 138.3 grams of crack cocaine, razor blades, a digital 

scale, and plastic bags with a white powder residue. Neither Defendant contests that 19504 

Strasburg is within 1000 feet of a school. Therefore, the question is whether each Defendant 

committed the underlying drug crime—possessing a controlled substance with intent to 

distribute—while at this property. 

The underlying offense requires proof that the defendant: “(1) knowingly, (2) possessed 

a controlled substance, (3) with intent to distribute it.” United States v. Russell, 595 F.3d 633, 

645 (6th Cir. 2010) (quoting United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006)). “[T]he 

government need not have provided evidence of actual possession; proof of constructive 

possession suffices.” United States v. Welch, 97 F.3d 142, 150 (6th Cir. 1996) (citing United 

States v. White, 932 F.2d 588, 589 (6th Cir. 1991)). “Constructive possession requires that a 

person knowingly have power and intention to exercise control over an object.” United States v. 

Critton, 43 F.3d 1089, 1096 (6th Cir. 1995) (citing United States v. Craven, 478 F.2d 1329, 1333 

(6th Cir. 1973)). Control over the substance can be “either directly or through others.” Welch, 

97 F.3d at 150 (quoting United States v. Reeves, 794 F.2d 1101, 1105 (6th Cir. 1986)). 

However, “proof of the ‘mere presence’ of the defendant in proximity to the controlled 

substance, by itself, is insufficient evidence to establish possession with intent to distribute 

beyond a reasonable doubt.” Id. (quoting White, 932 F.2d at 589–90). 

a) Demarco Tempo

A rational jury could have found beyond a reasonable doubt that Tempo possessed these 

drugs with the intent to distribute. This case is similar to Welch, where we upheld a distribution 

conviction because “[t]here was extensive evidence of [the defendant’s] involvement in a 

conspiracy to distribute cocaine and specifically his having sold cocaine from a [specific] crack 

house.” 97 F.3d at 150. Here, 19504 Strasburg was a suspected “stash location” for “Polo” 

operations, and it operated “almost like a dispatch center.” (Bankowski Test., R. 708, Page ID 

#4357). Although 19504 Strasburg appeared to be vacant, Tempo exerted some control over the 

property. He hired William Dennis to do repairs on the house. While working there, Dennis saw 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 35

people cutting up drugs, measuring them, and placing them in small plastic bags. Several 

witnesses saw Tempo at the property with other known “Polo” members and large quantities of 

drugs. While at the property, Tempo answered his phone and told runners to go meet customers.

This evidence sufficiently shows that Tempo constructively possessed the substances 

found at 19504 Strasburg. See United States v. Sheppard, 149 F.3d 458, 462 (6th Cir. 1998) 

(upholding conviction under constructive possession theory when, among other facts, the 

defendant “was seen several times at the house in which the drugs were found” and “a large 

number of people were seen coming and going from the house”); United States v. Hill, 142 F.3d 

305, 311–12 (6th Cir. 1998) (finding constructive possession with intent to distribute when drugs 

were found in large quantities along with items like scales, razor blades, packaging materials, 

and the defendant’s own possessions); Wettstain, 618 F.3d at 586 (finding possession with intent 

to distribute when the defendant “receive[d] a phone call” and directed another person to retrieve 

the drugs to make a sale).8

b) Kenneth Sadler

The government’s only argument in support of the jury’s guilty verdict against Sadler is 

that Sadler is liable as a co-conspirator under Pinkerton. “The doctrine holds that a member of a 

conspiracy is liable for ‘substantive offense[s]’ committed by his co-conspirators, even if he did 

not participate in them, as long as: (1) the offenses are ‘done in furtherance of the conspiracy,’ 

(2) they ‘fall within the scope of the unlawful project,’ and (3) they are reasonably foreseeable 

‘consequence[s] of the unlawful agreement.’” Hamm, 952 F.3d at 744 (quoting Pinkerton, 

328 U.S. at 647–48).

As discussed above, Sadler was a co-conspirator in the “Polo” operation. See supra Part 

II.A.1.b. Sadler also had ties to the Strasburg property; police surveillance showed 

Sadler coming and going from the house between May and June 2016. Based on Sadler’s status 

8As each of Tempo’s Rule 29 challenges fails, his argument that the district court erred in denying his 

motion for a new trial under Rule 33 also fails. Federal Rule of Criminal Procedure 33 provides that, “[u]pon the 

defendant’s motion, the [district] court may vacate any judgment or grant a new trial if the interest of justice so 

requires.” Fed. R. Crim. P. 33. Here, Tempo’s Rule 33 motion presented the same arguments as his Rule 29 

motion. Because his Rule 29 arguments fail, so to do his Rule 33 arguments, even under Rule 33’s different 

standard. See United States v. Bowens, 938 F.3d 790, 796 (6th Cir. 2019).
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 36

as a co-conspirator, his presence at the Strasburg property on multiple occasions, and the 

evidence discussed above about drug activity at the house, there was sufficient evidence for the 

jury to conclude that possession with the intent to distribute at 19504 Strasburg was a foreseeable 

crime within the scope of and in furtherance of the conspiracy. Thus, Sadler is liable for this 

substantive offense under Pinkerton. See Martin, 920 F.2d at 348–49.

4. Felon in Possession

Sufficient evidence supports Sadler’s conviction under 18 U.S.C. § 922(g)(1) for being a 

felon in possession of a firearm. “The elements of the crime of being a felon in possession of a 

firearm are: 1) a prior felony conviction; 2) knowing possession of a firearm; and 3) the firearm 

must have traveled in interstate commerce.” United States v. Mayberry, 540 F.3d 506, 514 (6th 

Cir. 2008) (citing 18 U.S.C. § 922(g)(1)). Sadler does not dispute that he is a convicted felon or 

that the gun he allegedly possessed travelled in interstate commerce. Thus, if a reasonable jury 

could find, beyond a reasonable doubt, that Sadler possessed the firearm at issue, his conviction 

will stand.

“Possession may be ‘either actual or constructive and it need not be exclusive but may be 

joint.’” United States v. Paige, 470 F.3d 603, 610 (6th Cir. 2006) (quoting United States v. 

Covert, 117 F.3d 940, 948 (6th Cir. 1997)). “Constructive possession may be proved by direct or 

circumstantial evidence and it is not necessary that such evidence remove every reasonable 

hypothesis except that of guilt.” Coffee, 434 F.3d at 895–96 (citing Craven, 478 F.2d at 1333). 

“Proof that ‘the person has dominion over the premises where the firearm is located’ is sufficient 

to establish constructive possession.” Id. at 896 (quoting United States v. Kincaide, 145 F.3d 

771, 782 (6th Cir. 1998)). “However, presence where a firearm was found, without more, is 

insufficient to establish ‘knowledge, power, or intention to exercise control’ over the firearm.” 

Id. (quoting United States v. Arnold, 434 F.3d 396, 403 (6th Cir. 1993)).

The government charged Sadler with possession of a .40 caliber Smith & Wesson 

handgun found on June 15, 2016, during a search of 15652 Eastburn. Police saw Sadler leaving 

that house earlier that day. Sadler’s children lived at the home with their mother, and police 

found some of Sadler’s belongings in the house. Police found the firearm on the top shelf of a 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 37

kitchen cabinet. A forensic scientist identified Sadler’s DNA on the firearm. After his arrest, 

Sadler told police that “he was taking full responsibility for the firearm . . . that w[as] found in 

the residence on Eastburn Street.” (John Pickett Trial Test., R. 706, Page ID #4208). Even 

without unequivocal evidence that Sadler owned or resided at the Eastburn property full-time, 

this evidence is sufficient to establish constructive joint possession. See Coffee, 434 F.3d at 896–

97 (finding constructive possession despite conflicting testimony about the defendant’s primary 

residence at the time of the search).

5. Conspiracy to Obstruct Justice

Sufficient evidence supported Sadler’s conviction for conspiring to obstruct justice. 

Under 18 U.S.C. § 1512, it is a crime to conspire to use “the threat of physical force against any 

person . . . with intent to . . . influence, delay, or prevent the testimony of any person in an 

official proceeding.” § 1512(a)(2)(A), (k). The government charged Sadler with conspiring to 

threaten William Dennis. To sustain this conviction, Sadler must have agreed with another 

person to threaten Dennis in hopes of preventing or influencing his testimony at trial. Although 

the government’s evidence on this charge is circumstantial, that does not preclude the jury from 

finding Sadler guilty beyond a reasonable doubt. See United States v. Ledbetter, 929 F.3d 338, 

355 (6th Cir. 2019) (upholding conviction for conspiracy to obstruct justice based on 

circumstantial evidence alone). There are three key pieces of evidence here: Sadler found out 

who would be testifying against him at trial;9 Sadler and his mother then called Dennis’ 

mother—Francine Leatherwood—and discussed Dennis’ future testimony; and immediately after 

that call, an unknown person called Dennis’ mother and said, “Tell William to shut up or one of 

y’all are going to go missing.” (Francine Leatherwood Test., R. 791, Page ID #7875). 

Sadler argues that “there was absolutely no testimony from any witness, including 

William Dennis Sr., that Mr. Sadler ever threatened [Dennis] or directed anyone to threaten 

him.” (Def. Sadler 19-2221 Br. at 14). “But that misses the point at this stage, where all 

inferences must be made in favor of the prosecution and the evidence need not ‘exclude every 

reasonable hypothesis except that of guilt.’” Ledbetter, 929 F.3d at 355 (quoting Johnson v. 

9As discussed below, this evidence was admissible. See infra Part II.B.2.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 38

Coyle, 200 F.3d 987, 992 (6th Cir. 2000)). A jury could infer intent based on the timing of the 

calls in relation to Sadler’s discovery that Dennis would testify. It could further infer an 

agreement to threaten Leatherwood with physical force by the back-to-back calls from Sadler 

and the threatening caller. The timing of these events could have led the jury to conclude, 

beyond a reasonable doubt, that Sadler had agreed with the unknown caller to threaten 

Leatherwood with the use of physical force.

6. Witness Tampering

A person commits a substantive offense under § 1512 when he or she “uses . . . the threat 

of physical force against any person, or attempts to do so, with intent to . . . influence, delay, or 

prevent the testimony of any person in an official proceeding.” 18 U.S.C. § 1512(a)(2)(A). The 

jury found Sadler guilty of tampering with two witnesses: Dennis and Alexander.

a) William Dennis Sr.

Sufficient evidence showed that Sadler used threats of physical force with the intent to 

influence or prevent Dennis’ testimony in this trial. After learning that Dennis would testify in 

this case, Sadler and his mother called Dennis’ mother, asking whether she knew that her son 

was testifying and commenting on his decision to testify. An unknown caller immediately called 

Leatherwood back and said: “Tell William to shut up or one of y’all are going to go missing.” 

(Francine Leatherwood Test, R. 791, Page ID #7875).10 Around the same time, Sadler sent a 

Facebook message to Dennis’ sister—Andrea Leatherwood—saying, “That’s crazy how your 

brother are main witness, but we telling on him. Little bro turn in his grave, that’s how 

shit . . . .” (Andrea Leatherwood Test., R. 791, Page ID ##7890–91). 

Sadler argues that his statements were not threats and that, even if they were, there was 

no evidence indicating that Dennis found out about the threats. First, his statements that Dennis 

would “turn in his grave” and that, if Dennis did not “shut up . . . [,] one of y’all are going to go 

missing” satisfy the threats-of-physical-force requirement. See United States v. Thompson, 

10Having concluded that this statement was made as part of a conspiracy, see supra Part II.A.5, Sadler 

would be liable for this substantive offense committed by a co-conspirator under the Pinkerton doctrine, see supra

Part II.A.3.b.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 39

758 F. App’x 398, 411–12 (6th Cir. 2018) (defendant’s statement that “I’m going to get her,” 

when referring to the witness, satisfied “threat” requirement). Second, for purposes of § 1512 

liability, it does not matter that Sadler made the threats to Dennis’ family members, or that 

Dennis may not have heard about them. The statute encompasses threats “against any person,” 

id., even if not made directly to the witness and the witness never learned of the threat, see 

United States v. England, 507 F.3d 581, 589 (7th Cir. 2007) (upholding conviction when the 

defendant threatened the witness’s father even though the witness never heard about the threat).

b) Amacio Alexander

There is also sufficient evidence supporting the jury’s finding that Sadler threatened 

Alexander. On June 19, 2016, Sadler approached Alexander while Alexander was at his aunt’s 

house. Sadler drove up to the house in a black truck and, without getting out of the vehicle, 

approached Alexander and said, “Take back what you said. Don’t go to court or your family 

going to see your face on a T-shirt.” (Alexander Test., R. 705, Page ID #4064). Alexander 

believed this was a reference to “memorial T-shirt[s]” and believed it was a death threat. (Id.) 

The geolocation data on Sadler’s phone confirmed that he was near Alexander’s aunt’s house 

around the time of this incident. Based on this evidence, a rational jury could have found that 

Sadler threatened Alexander with the intent to prevent him from testifying.

B. Evidentiary Objections

Sadler challenges the district court’s decision to admit two pieces of evidence against 

him: (1) evidence of two incidents where he sold heroin to an undercover police officer in 2012, 

and (2) his former attorney’s testimony discussing when Sadler learned about the witnesses in 

this case.

1. Sadler’s 2012 Heroin Sales

We “generally review the district court’s admission or exclusion of evidence for abuse of 

discretion.” Emmons, 8 F.4th at 473 (quoting United States v. Bell, 516 F.3d 432, 440 (6th Cir. 

2008)). “A district court has abused its discretion when its decision rests on the wrong legal 

standard, a misapplication of the correct standard, or on clearly erroneous facts.” United States 

v. Gibbs, 797 F.3d 416, 422 (6th Cir. 2015). “If evidence was erroneously admitted, we ask 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 40

whether the admission was harmless error or requires reversal of a conviction.” United States v. 

Churn, 800 F.3d 768, 775 (6th Cir. 2015) (citing United States v. Martinez, 588 F.3d 301, 312 

(6th Cir. 2009)). This standard applies when reviewing a district court’s determination that 

Federal Rule of Evidence 404(b) is inapplicable because the evidence is intrinsic or res gestae. 

Id. at 774, 779. Here, the district court abused its discretion by admitting evidence of two 

instances where Sadler sold drugs in 2012. But, ultimately, the error is harmless.

Under Rule 404(b)(1), “[e]vidence of any other crime, wrong, or act is not admissible 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)(1). “The purpose of Rule 404(b) is to 

prevent a jury from ‘convict[ing] a “bad man” who deserves to be punished not because he is 

guilty of the crime charged but because of his prior or subsequent misdeeds’ and from 

‘infer[ring] that because the accused committed other crimes, he probably committed the crime 

charged.’” Emmons, 8 F.4th at 473 (quoting United States v. Phillips, 599 F.2d 134, 136 (6th 

Cir. 1979)). 

However, Rule 404(b) does not apply when the prior bad act forms the basis of the 

charges for which a defendant is being tried. See United States v. Adams, 722 F.3d 788, 822 (6th 

Cir. 2013) (Rule 404(b) “is not implicated when the other crimes or wrongs evidence is part of a 

continuing pattern of illegal activity” (quoting United States v. Barnes, 49 F.3d 1144, 1149 (6th 

Cir. 1995))). That is, if evidence is “intrinsic,” Rule 404(b) will not apply as long as the 

acts “are part of a single criminal episode.” Id. (quoting Barnes, 49 F.3d at 1149). “Intrinsic 

acts are those that are . . . a part of the criminal activity[,] as opposed to extrinsic acts, which are 

those that occurred at different times under different circumstances from the offense charged.” 

Churn, 800 F.3d at 779 (quoting United States v. Stafford, 198 F.3d 248 (Table), 1999 WL 

1111519, at *4 (6th Cir. 2012)). A similar but distinct doctrine involves an exception to Rule 

404(b) for res gestae, or background, evidence. See Adams, 722 F.3d at 810 (citing United 

States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012)). Such evidence “consists of those other acts 

that are inextricably intertwined with the charged offense.”11 United States v. Hardy, 228 F.3d 

11We have not always been clear when distinguishing between res gestae and intrinsic evidence. Adams

indicates that these concepts are different. See 722 F.3d at 810, 822. However, later cases have merged the two. 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 41

745, 748 (6th Cir. 2000). “Typically, such evidence is a prelude to the charged offense, is 

directly probative of the charged offense, arises from the same events as the charged offense, 

forms an integral part of a witness’s testimony, or completes the story of the charged offense.” 

Id. “Concerned with the potential for abuse of background evidence as a means to circumvent 

Rule 404(b),” we have recognized “severe limitations as to ‘temporal proximity, causal 

relationship, or spatial connections’ among the other acts and the charged offense.” Adams, 

722 F.3d at 810 (quoting Clay, 667 F.3d at 698). We must be careful not to allow res gestae

evidence as a “‘backdoor to circumvent [the] goals’ of Rule 404(b).” Gibbs, 797 F.3d at 423 

(quoting Clay, 667 F.3d at 698).

Sadler believes the district court improperly admitted evidence relating to his 2012 heroin 

sales—which he does not dispute happened—as intrinsic evidence. The government alleges that 

these sales were evidence of the “Polo” conspiracy. The district court overruled Sadler’s 

objection to this evidence and found that it was “relevant because it’s certain acts alleged[ly] by 

the defendant . . . during the time frame of the conspiracy relating to the overall charge.” (Trial 

Tr., R. 706, Page ID #4127). The district court did not consider whether the testimony was 

admissible under any exception to Rule 404(b), such as proof of motive, opportunity, intent, 

plan, knowledge, or lack of accident. See Fed. R. Evid. 404(b)(2).

The parties’ dispute boils down to the degree of relatedness between Sadler’s 2012 heroin 

sales and the broader “Polo” conspiracy between 2010 and 2016. The government argues that 

the jury could reasonably infer that these sales were part of the “Polo” conspiracy. It relies on 

the following threads to tie Sadler’s 2012 sales to the broader “Polo” conspiracy: Sadler sold 

heroin; “Polo” sold heroin; Sadler sold heroin in small plastic bags; “Polo” sold heroin in small 

plastic bags; Sadler sold those bags for roughly $20; “Polo” sold bags for $20; Sadler used a 

phone to set up drug deals; “Polo” used phones to coordinate drug deals; Sadler’s sales were in 

2012; “Polo” allegedly operated in 2012. But, as Sadler notes, “[t]he similarities that the 

See Churn, 800 F.3d at 779 (“Res gestae is sometimes also known as ‘intrinsic evidence.’”). As we have 

recognized, “the distinctions among res gestae, inextricably intertwined evidence, intrinsic evidence, and 

background evidence [are] far from clear.” Id. (quoting Adams, 722 F.3d at 822 n.26). Ultimately, we do not need 

to split hairs deciding whether this is “intrinsic” or “res gestae” evidence because under either theory, the outcome is 

the same.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 42

government claims are unique, are actually so generic that [we] . . . give them no credence 

whatsoever.” (Def. Sadler Reply Br. at 3).

The government’s comparisons are flawed for several reasons. First, they do not indicate 

that the 2012 sales were intrinsic evidence that was “part of a single criminal episode.” Adams, 

722 F.3d at 822 (quoting Barnes, 49 F.3d at 1149). The evidence does not show that Sadler’s 

sales were “Polo” sales. There is no evidence that Sadler set up the sales using either “Polo” 

phone, he did not use a runner, and the sales were in a different part of town than “Polo” sales. 

Sadler pulled up to the undercover officer in a car, driven by the mother of his children, with a 

child in the backseat. Officers did not see other cars waiting or other drug deals happening at the 

same time. Sadler’s 2012 drug sales are thus not intrinsic evidence because they have no bearing 

on whether he agreed, knowingly joined, and participated in the conspiracy. See Williams, 

998 F.3d at 728 (listing elements of conspiracy); United States v. Peete, 781 F. App’x 427, 434 

(6th Cir. 2019) (noting that evidence is intrinsic if it “tends to logically prove an element of the 

crime charged” (emphasis added) (quoting United States v. Till, 434 F.3d 880, 883 (6th Cir. 

2006))). Indeed, in a similar drug conspiracy case, we found evidence of the defendant’s past 

drug sales inadmissible extrinsic evidence when the parties involved in those deals were not the 

alleged co-conspirators, and the prior sales did not “tend to establish the charged conspiracy 

itself.” United States v. Hardy, 228 F.3d 745, 749–50 (6th Cir. 2000). Without some connection 

to the conspiracy itself, prior bad acts are not intrinsic to the alleged conspiracy even if the bad 

act is of the same kind alleged in the conspiracy charge. See id.

Second, the 2012 sales are not res gestae or background evidence. Although courts can 

admit such evidence even when the prior acts are not “identical” to those charged, the facts must 

be “closely related.” Churn, 800 F.3d at 779 (quoting United States v. Vincent, 681 F.2d 462, 

465 (6th Cir. 1982)). Here, Sadler’s 2012 drug deals are not “closely related” to the “Polo” 

conspiracy. The spatial and temporal connections between “Polo” and Sadler’s 2012 sales are 

tenuous at best. Most of the evidence at trial concerned “Polo” deals between 2015 and 2016. 

But even in the earlier “Polo” sales, the evidence showed a clear pattern of “Polo” using the 

same two phones and the same handful of locations. Although Sterling Heights is a suburb just

east of Detroit, it is roughly ten miles away from the small area where “Polo” operated. The 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 43

2012 deals did not happen at a “Polo” stash house or other identifiable “Polo” hotspot like 

Hamburg Street or the intersection of Bringard and Bradford. Rather, they were in a Meijer 

parking lot ten miles away.

We require a much stronger connection between the prior act and the conduct charged to 

support a finding that the past act was intrinsic or res gestae evidence. See Churn, 800 F.3d at 

779 (admitting evidence of a non-charged fraudulent transaction because that transaction was 

with the same victim and the fraudulent deals were set up around the same time, and thus it was 

evidence of “the very scheme alleged in the indictment”); United States v. Hughes, 562 F. App’x 

393, 396 (6th Cir. 2014) (admitting “intrinsic” evidence showing that the defendant—who was 

charged with carjacking a Pontiac Sunfire—used a Sunfire to commit several robberies within 

three hours of the alleged carjacking). The district court thus abused its discretion by admitting 

this evidence as intrinsic or res gestae evidence. Because the 2012 sales are not relevant to the 

charged offense and do not provide any necessary background, the only inference that can be 

drawn from them is that Sadler’s prior drug-dealing activity makes it more likely that he would 

join a conspiracy involving those types of crimes. This is precisely the kind of inference that 

Rule 404(b) seeks to avoid. See Fed. R. Evid. 404(b); see also United States v. English, 785 F.3d 

1052, 1059 (6th Cir. 2015) (Clay, J., concurring) (noting that defendant’s prior fraudulent 

conduct was not res gestae because it involved “discrete instances of fraudulent conduct 

constituting only gratuitous evidence of [the defendant’s] propensity to commit fraud”). 

After seemingly concluding that Rule 404(b) was not implicated, the district court did not 

consider whether any exceptions to Rule 404(b) applied. But we do not need to remand on this 

issue because the error in admitting evidence of Sadler’s 2012 drug deals was harmless. “[A]n 

error is harmless unless one can say, with fair assurance[,] that the error materially affected the 

defendant’s substantial rights—that the judgment was substantially swayed by the error.” Gibbs, 

797 F.3d at 425–26 (quoting Clay, 667 F.3d at 700). As discussed above, a rational jury could 

have found beyond a reasonable doubt that Sadler was guilty of conspiracy under § 846 even 

without considering the 2012 drug sales. See supra Part II.A.1.b. 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 44

2. Prior Attorney’s Testimony

Sadler next argues that the district court erred by allowing his former attorney—Doraid 

Elder—to testify at trial because that testimony violated the attorney-client privilege. 

“[W]hether the attorney-client privilege applies is a mixed question of law and fact, subject to de 

novo review.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 517 (6th Cir. 

2014) (quoting Reg’l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 712 (6th Cir. 

2006)). “The purpose of attorney-client privilege is to ensure free and open communications 

between a client and his attorney.” Id. (quoting In re Grand Jury Subpoenas, 454 F.3d 511, 519 

(6th Cir. 2006)). “The burden of establishing the existence of the privilege rests with the person 

asserting it.” United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). In deciding whether a 

communication is privileged, we have held that: “(1) [w]here legal advice of any kind is sought 

(2) from a professional legal adviser in his capacity as such, (3) the communications relating to 

that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently 

protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is 

waived.” Reed v. Baxter, 134 F.3d 351, 355–56 (6th Cir. 1998). While this definition seemingly 

only applies to the client’s statements, courts generally agree that an attorney’s statements to a 

client can also fall within the privilege if that communication would reveal client confidences or 

legal advice. See In re Grand Jury Procs., 616 F.3d 1172, 1182 (10th Cir. 2010). However, 

those communications are not protected “when an attorney conveys to his client facts acquired 

from other persons or sources.” Id. (quoting In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 

1984)).

Elder testified that he gave Sadler the witness list in this case shortly before Sadler made 

threatening calls to Francine Leatherwood (Dennis’ mother) and sent threatening messages to 

Andrea Leatherwood (Dennis’ sister). The government sought to admit this evidence because 

the temporal proximity of these events circumstantially showed that Sadler intended to 

“influence, delay, or prevent the testimony of any person in an official proceeding” as required to 

prove witness tampering. The district court allowed Elder to testify, but limited Elder’s 

testimony to the following issues: (1) whether Elder had conversations with Sadler between 

March 19 and 23, 2018; (2) whether Elder and Sadler met on March 23, 2018; (3) whether Elder 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 45

gave Sadler a witness list and the grand jury testimony transcript on that day; and (4) whether 

those materials identified cooperating witnesses. Whether these types of communications are 

privileged is a matter of first impression. We agree with the district court that the Seventh 

Circuit’s decision in United States v. Defazio, 899 F.2d 626 (7th Cir. 1990), is instructive here. 

In Defazio, the defendant was charged with tax fraud. During the course of the 

IRS’s pre-indictment investigation, the defendant’s attorney met with IRS agents 

to discuss his audit. [899 F.2d] at 634. The agents told the attorney that the IRS 

“had completed their investigation and are ready to refer the case [for 

prosecution] and that if you have any defenses you would like to present, he 

would be glad to listen to them.” Id. Later, the attorney met with the defendant to 

discuss his meeting with the IRS, and the fact that criminal prosecution was 

likely. Id. After this discussion, the defendant transferred assets, for nominal 

consideration, to a newly created corporation. Id.

The Government sought to prove that the transfers were part of the defendant’s 

willful attempt to evade income taxes by calling the attorney to testify “only to 

what the IRS agent said to him, and that he later relayed those statements to [the 

defendant].” Id. at 635. The trial court allowed the attorney to testify to this 

effect, and the defendant appealed. The Seventh Circuit upheld the trial court’s 

decision, concluding that “the content of [the attorney’s] testimony is 

unprivileged because it did not reveal, either directly or implicitly, legal advice 

given [to the defendant] or any client confidences.” Id. Accordingly, allowing 

the attorney to testify as to what the IRS agent told him, and that he later relayed 

the IRS agent’s statements to the defendant, did not violate attorney-client 

privilege.

(Dist. Ct. Order, R. 653 at 5–6). As the district court noted, Elder’s testimony did not disclose 

the contents of any meetings or conversations with Sadler beyond those facts that the 

government relayed to Elder. “Like the IRS statements in Defazio, this information did not 

reveal either directly or implicitly, legal advice or any client confidence.” (Id. at 6). Elder’s 

testimony merely indicated when Sadler received specific types of information from the 

government—vis-à-vis his attorney—about the case. In this context, the communications are not 

protected by the attorney-client privilege.

C. Jury Instructions

Both Defendants argue that the district court made multiple errors in its jury instructions 

concerning 21 U.S.C. § 841(b)(1)(C)’s death-or-injury-results provision. That provision imposes 

an enhanced sentence if a defendant is found guilty of distributing, or conspiring to distribute, a 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 46

controlled substance and “death or serious bodily injury results from the use of such substance.” 

§ 841(b)(1)(C). Whether death or serious bodily injury results from a particular substance is a 

question for the jury. Burrage, 571 U.S. at 210.

We generally “review the legal accuracy of jury instructions de novo.” United States v. 

Pritchard, 964 F.3d 513, 522 (6th Cir. 2020) (citing United States v. Roth, 628 F.3d 827, 833 

(6th Cir. 2011)). However, “a district court’s refusal to give an instruction requested by the 

defendant must amount to abuse of discretion in order for [us] to vacate a judgment.” Id. (citing 

Roth, 628 F.3d at 833). If the defendant failed to request a specific instruction from the district 

court, we review that omission for plain error. United States v. Semrau, 693 F.3d 510, 527 (6th 

Cir. 2012) (citing United States v. Carmichael, 232 F.3d 510, 523 (6th Cir. 2000)). Even if the 

district court plainly erred, the error must have “affected substantial rights,” meaning that we will 

not reverse or vacate a decision unless the error “affected the outcome of the district court 

proceedings.” United States v. Castano, 543 F.3d 826, 833 (6th Cir. 2008) (quoting United 

States v. Olano, 507 U.S. 725, 734 (1993)).

Neither Defendant raised the precise objections that they now raise on appeal. 

Arguments challenging the district court’s jury instructions are properly preserved when the 

defendant “objected to [the] jury instructions on [the same] ground in the trial.” United States v. 

Blackwell, 459 F.3d 739, 764 (6th Cir. 2006) (internal citation omitted) (citing Carmichael, 

232 F.3d at 523). Before the district court, Tempo objected to two jury instructions concerning 

causation and Pinkerton liability related to the death-or-injury results enhancement. However, 

he did not ask for the specific instructions that he now alleges the district court improperly 

omitted. Sadler similarly argues that the death-or-injury results instruction used the wrong 

causation standard and omitted an element of that enhancement. Sadler claims that “[t]his was 

objected to in a timely manner by . . . his attorney.” (Def. Sadler 19-2217 Br. at 43). But he 

does not cite any part of the record showing that his attorney lodged these objections, and we 

have found none. Thus, neither Defendant properly preserved these objections. Because 

Defendants argue that the district court improperly omitted necessary instructions, but neither 

Defendant requested those specific instructions at trial, we review the instructions for plain error. 

See Semrau, 693 F.3d at 527 (citing Carmichael, 232 F.3d at 523).
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 47

1. Causation Instruction

The jury instructions correctly stated the causation standard under § 841(b)(1)(C). Both 

Defendants argue that the “results from” language requires a showing of proximate causation, 

which includes a foreseeability requirement. See United States v. Jeffries, 958 F.3d 517, 520 

(6th Cir. 2020). Defendants thus argue that the district court erred by giving the following jury 

instruction:

In determining whether the serious bodily injury or death of these individuals 

resulted from the use of Heroin of Fentanyl that was distributed, the government 

is not required to prove that the defendant or defendants knew ahead of time that 

the Distribution of a Controlled Substance would or could result in a serious 

bodily injury, or in the death of, these individuals. In other words, the 

government need not prove that the serious bodily injury or death was foreseeable

to the defendant or defendants. . . .

If you find that one or more of the defendants is guilty of the charged [offenses], 

you may find that the controlled substance so distributed caused a serious bodily 

injury or death if he or she would not have suffered that serious bodily injury or 

death if he or she not used that Substance. Along those lines, if you find that the 

substance distributed combined with other drugs or factors to produce his or her 

serious bodily injury or death, you may find that the substance caused the serious 

bodily injury or death of the victim if the victim would have avoided that serious 

bodily injury or lived but for his or her use of that substance. That is, you may 

find the substance distributed by the defendant caused a victim’s serious bodily 

injury or death if, so to speak, this substance was the straw that broke the camel’s 

back. But the government must prove beyond a reasonable doubt that the serious 

bodily injury or death would not have occurred had the substance distributed by 

the defendant not been ingested by the individual.

(Jury Instrs., R. 662, Page ID #3588–89 (emphasis added)). At trial, Tempo asked for an 

additional “superseding cause instruction.” (Tempo Mot. for Jury Instr., R. 345, Page ID #1803). 

Sadler raises the argument for the first time on appeal. Because neither defendant specifically 

requested a proximate-cause instruction, we review this instruction for plain error. See 

Pritchard, 964 F.3d at 522 (citing Roth, 628 F.3d at 833).

There is no dispute that § 841(b)(1)(C) requires but-for causation. Burrage, 571 U.S. at 

218–19. At the time of the trial, this circuit had not addressed whether the sentencing 

enhancement also required proximate causation. But we recently took up this question and 

decided that § 841(b)(1)(C) does not require a showing of proximate causation, including 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 48

foreseeability. Jeffries, 958 F.3d at 520, 524; see also United States v. Daniels, 653 F.3d 399, 

409 (6th Cir. 2011) (noting that the inquiry is whether the error was plain at the time of appellate 

review, not at the time of trial). Thus, the district court properly instructed the jury on the 

applicable causation standard under § 841(b)(1)(C).

2. Chain of Distribution

Even if “Polo” drugs were the but-for cause of the victims’ overdoses, Defendants argue 

that the jury was also required to find that they were personally linked to these drug sales in 

order to impose an enhanced sentence under 21 U.S.C. § 841(b)(1)(C). The death-or-injuryresults enhancement applies only if the defendant violated a substantive provision of § 841—that 

is, there must be an underlying crime. See § 841(b)(1)(C). When a defendant’s underlying 

crime relies on a conspiracy theory of liability, then the district court cannot impose the 

enhanced sentence unless the jury finds that the defendant was part of the distribution chain that 

led to the victim’s overdose. Hamm, 952 F.3d at 745. This rule emerged through two cases: 

United States v. Swiney, 203 F.3d 397 (6th Cir. 2000) and United States v. Hamm, 952 F.3d 728 

(6th Cir. 2020).

In Swiney, nine co-defendants were convicted of conspiring to distribute heroin under 

§ 846. 203 F.3d at 400. One unindicted co-conspirator sold heroin to a man who later overdosed 

on that heroin. Id. at 400–01. The district court refused to apply the death-or-injury-results 

enhancement to the conspiracy defendants because there was “no proof linking the heroin which 

caused” the overdose to other co-conspirators, and we affirmed. Id. at 401. We concluded that 

“before any of the [d]efendants can be subject to the sentence enhancement of 21 U.S.C. 

§ 841(b)(1)(C)” the jury must find that the defendants were “part of the distribution chain.” Id.

at 406. We vacated the defendants’ sentences and remanded the case for the district court to 

make this factual determination. See id.

In Hamm, we reiterated that “to apply the § 841(b)(1)(C) sentencing enhancement” to any 

underlying conspiracy crime, “the jury need[s] to find beyond a reasonable doubt that [the 

defendant] w[as] part of the distribution chain.” 952 F.3d at 747. But Hamm also extended 

Swiney, applying the chain-of-distribution requirement when the underlying crime is a 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 49

substantive offense under § 841 that is based solely on a conspiracy theory, even if the 

underlying crime is not conspiracy under § 846. 952 F.3d at 746–47. Specifically, Hamm held 

that a defendant who did not personally commit the underlying crime, but who is nevertheless 

liable as a co-conspirator, cannot be sentenced under the death-or-injury-results enhancement 

unless he was part of the chain of distribution. Id. Such co-conspirator liability, known as 

“Pinkerton liability,” “is a way of holding members of a conspiracy liable ‘for acts committed by 

other members.’” Id. at 744 (quoting Kumar Katyal, Conspiracy Theory, 112 Yale L.J. 1307, 

1336 (2003)).

In Hamm, the defendants were convicted of distribution charges under § 841. Hamm, 

952 F.3d at 746–47. The two defendants worked together with another woman, Tracey Myers, 

to buy carfentanil in Cincinnati and bring it back to Kentucky. See id. at 748. But, once in 

Kentucky, Myers and the two defendants each used or sold their carfentanil on their own terms. 

See id. At some point, Myers gave carfentanil to her cellmates while in jail, and her cellmates 

overdosed on the drugs. Id. The defendants were convicted of distributing carfentanil, and each 

received a 20-year sentence because the carfentanil caused Myers’ cellmates’ overdoses. See id.

at 746–47. We concluded that, without the Pinkerton doctrine imposing liability onto coconspirators, the defendants could not have been convicted under § 841(a). See id. at 747 (“No 

one is alleging that [the defendants] actually sold carfentanil to [the overdose victims]; they are 

only liable for the distribution to [the overdose victims] as . . . Myers’ co-conspirators.”). 

Because the defendants were only liable as co-conspirators, “it ma[de] little sense to say that 

Swiney [wa]s a conspiracy case but this one [wa]s not.” Id. at 747. We thus held that the district 

court could not have imposed the sentence enhancement unless the jury found that the defendants 

were in the chain of distribution. Id. at 747; see also Williams, 998 F.3d at 734 (“To prove that 

[the defendant] was liable for the death of others, moreover, the government cannot rely on 

Pinkerton liability, and must show that [the defendant] was in the chain of distribution that 

caused the victim’s death or injury.”). But the jury was not instructed on this element. See 

Hamm, 952 F.3d at 747. By failing to give a chain-of-distribution instruction, the district court 

“misstated the law.” Id.; see also United States v. Nelson, 27 F.3d 199, 200, 202 (6th Cir. 1994) 

(finding plain error when district court failed to instruct the jury on a critical element under a 

similar sentencing enhancement provision—18 U.S.C. § 924(c)(1)(A)). The district court here 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 50

did not give a chain-of-distribution instruction for either Tempo or Sadler. Because their 

underlying crimes were different, and the effects of any error differ, they require separate 

discussions.

a) Kenneth Sadler: § 846 Conspiracy

The district court plainly erred by omitting a chain-of-distribution instruction as part of 

the jury instructions for Sadler’s § 846 conspiracy count. The district court instructed the jury 

that:

If you find that the defendant is guilty of the conspiracy charged in Count One, 

and that the distribution of Heroin or Fentanyl causing the serious bodily injury or 

death was in furtherance of the conspiracy and was committed by or reasonably 

foreseeable to him, you may find that the Heroin or Fentanyl so distributed caused 

a serious bodily injury or death if he or she would not have suffered a serious 

bodily injury or died had he or she not used that substance.

(Jury Instrs., R. 662, Page ID ##3574 (emphasis added)). Sadler did not object to this instruction 

or request a chain-of-distribution instruction before the district court. We therefore review this 

instruction for plain error. See Castano, 543 F.3d at 833.

The jury found that Sadler conspired to distribute controlled substances, that the 

substances distributed as part of that conspiracy resulted in death and serious bodily harm, and 

that those distributions were in furtherance of the conspiracy and reasonably foreseeable to 

Sadler. But the jury did not receive a chain-of-distribution instruction and, thus, did not decide 

whether Sadler was “part of the distribution chain” as required under Hamm and Swiney. Hamm, 

952 F.3d at 745 (quoting Swiney, 203 F.3d at 406). Because the district court sentenced Sadler 

under the death-or-injury-results provision without the necessary factual findings by the jury, the 

district court plainly erred. See Nelson, 27 F.3d at 200, 202. 

This error substantially affected Sadler’s rights because, “taken as a whole, the jury 

instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” 

Castano, 543 F.3d at 833. An erroneous jury instruction affects a defendant’s substantial rights 

when it “could have led the jury to convict the defendant under a lower standard.” Id. at 836. 

Here, the jury found that Sadler was part of the “Polo” conspiracy, but the jury did not consider 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 51

whether Sadler was “part of the chain of distribution” of the drugs that killed or injured the 

victims. Therefore, the district court improperly imposed the 20-year minimum sentence under 

§ 841(b)(1)(C). See Hamm, 952 F.3d at 745; see also United States v. Donovan, 539 F. App’x 

648, 653 (6th Cir. 2013) (vacating defendant’s sentence because “[a] defendant may not be 

sentenced under the statutory penalties for a cocaine conspiracy following a general jury verdict 

on a conspiracy to distribute both cocaine and marijuana as the jury may have found only a 

marijuana conspiracy”). The chain-of-distribution instruction could have monumental effects for 

Sadler. Without the 20-year enhancement, Sadler’s sentence would have been five years shorter. 

He is entitled to have a jury decide whether he was in the chain of distribution. Therefore, we 

vacate his sentence and remand on this question.

b) Demarco Tempo: Pinkerton Liability

Tempo similarly argues that the district court improperly omitted a chain-of-distribution 

instruction. However, he believes that this instruction was necessary because the jury convicted 

him of substantive offenses under § 841 solely under a Pinkerton conspiracy theory. In its jury 

instructions, the district court explained that:

There are multiple ways that the government can prove a defendant guilty 

[distribution under § 841]. The first is by convincing [the jury] that the defendant 

personally committed or participated in this crime. The second is by showing that 

the defendant aided and abetted the commission of the charged offense. The third 

is based on the legal rule that all members of a conspiracy are responsible for acts 

committed by the other members, as long as those acts are committed to help 

advance the conspiracy, and are within the reasonably foreseeable scope of the 

agreement. This is often called “Pinkerton Liability.”

(Jury Instrs., R. 662, Page ID #3580). As to the death-or-injury-results enhancement on the 

substantive distribution counts, the court instructed that:

[T]he government need not prove that the serious bodily injury or death was 

foreseeable to the defendant or defendants. Rather, the government must prove 

beyond a reasonable doubt that:

(A) The defendant is guilty of the charged Distribution of a Controlled 

Substance under at least one of the theories of liability described 

above; 

(B) That the victim . . . used the Heroin of Fentanyl so distributed . . .; 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 52

(C) That he or she suffered a serious bodily injury or died; and

(D) That he or she would not have suffered a serious bodily injury or died 

but for the use of the Heroin or Fentanyl.

(Id. at Page ID ##3588–89 (emphasis added)).

At trial, Tempo objected to the Pinkerton instruction, but he did not ask for a chain-ofdistribution instruction. Rather, he argued that the Pinkerton instruction was erroneous because 

“no conspiracy ha[d] been established” that involved Tempo. (Trial Tr., R. 727, Page ID #6626). 

The district court overruled that objection. Because Tempo lodged his objection to Pinkerton on 

different grounds than he now presents, we review the district court’s omission of a chain-ofdistribution instruction for plain error. See Castano, 543 F.3d at 833. 

As Hamm made clear, the death-or-injury-results enhancement cannot apply if the 

defendant is convicted on a Pinkerton theory unless the jury also finds that the defendant was in

the chain of distribution. Hamm, 952 F.3d at 745. Here, the district court gave a Pinkerton 

instruction but not a chain-of-distribution instruction on Tempo’s substantive charges. Because 

the district court failed to instruct the jury that, if it found Tempo liable under a Pinkerton theory, 

it must also determine whether he was in the chain of distribution, the district court plainly erred.

Although Tempo argues that this error alone necessitates vacation and remand, such a 

remedy is warranted only if the error “affect[ed] substantial rights,” meaning it “affected the 

outcome of the district court proceedings.” Castano, 543 F.3d at 833 (quoting Olano, 507 U.S. 

at 734). Unlike Sadler’s conspiracy conviction—and unlike the defendants in Hamm who could 

be found liable only on a Pinkerton theory—a rational jury could have found, beyond a 

reasonable doubt, that Tempo was a principal in the crime and/or an aider and abettor. See supra

Part II.A.1.a. In this context, omitting a chain-of-distribution instruction did not substantially 

affect Tempo’s rights because he “is not being held responsible for someone else’s actions based 

on his status as a co-conspirator, but is being punished for his own actions.” Davis, 970 F.3d at 

657 (quoting United States v. Atkins, 289 F. App’x 872, 877 (6th Cir. 2008) (refusing to require a 

Swiney/Hamm instruction because the defendant was liable as a principal)). Thus, even though 

the district court plainly erred by omitting a chain-of-distribution instruction with the Pinkerton

instruction, that error does not warrant remand. See Castano, 543 F.3d at 833. 
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 53

D. Vagueness

Finally, Tempo argues that the death-or-injury-results enhancement is unconstitutionally 

vague. In whole, this provision provides that if a defendant violates § 841(a) by distributing 

schedule I or II controlled substances:

if death or serious bodily injury results from the use of such substance [then the 

defendant] shall be sentenced to a term of imprisonment of not less than twenty 

years or more than life, a fine . . . , or both.

21 U.S.C. § 841(b)(1)(C). The district court found that this provision was not unconstitutionally 

vague, and we review that decision de novo. United States v. Hart, 635 F.3d 850, 856 (6th Cir. 

2011) (citing United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001)). “Vagueness may 

invalidate a criminal statute if it either (1) fails ‘to provide the kind of notice that will enable 

ordinary people to understand what conduct it prohibits’ or (2) authorizes or encourages 

‘arbitrary and discriminatory enforcement.’” United States v. Bowker, 372 F.3d 365, 380 (6th 

Cir. 2004) (quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999), vacated on other 

grounds, 543 U.S. 1182 (2005)). 

Tempo first argues that § 841(b)(1)(C) is unconstitutionally vague because it “fails to 

specify” both an actus reus and a mens rea. (Def. Tempo Br. at 40). However, the actus reus is 

clear: the sentencing enhancement applies to violations of § 841(a), which in turn proscribes 

possessing or distributing controlled substances. See § 841(a)(1). And we have held that the 

mens rea carries over from the underlying offense: the enhancement applies only when a 

defendant “knowingly and intentionally” violates § 841(a)(1). Jeffries, 958 F.3d at 522–23. The 

only circuit to address this question found that § 841(b)(1)(C) is not vague for lack of a mens 

rea. United States v. Waldrip, 859 F.3d 446, 451 (7th Cir. 2017); see also United States v. 

Patterson, 38 F.3d 139, 145 (4th Cir. 1994) (noting, without addressing vagueness, that 

§ 841(b)(1)(C) “puts drug dealers and users on clear notice that their sentences will be enhanced 

if people die from using the drugs they distribute”). Therefore, the statute is not vague for lack 

of a mens rea or actus reus requirement.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 54

Tempo next argues that the “or both” language—indicating that a defendant may face 

imprisonment, a fine, or both—is unconstitutionally vague. On the one hand, the provision 

instructs that, if the drugs cause death or serious bodily injury, the defendant “shall be sentenced 

to a term of imprisonment of not less than twenty years.” § 841(b)(1)(C) (emphasis added). On 

the other hand, it allows courts to impose imprisonment, a fine, “or both.” Id. (emphasis added). 

The word “or” would seemingly allow a court to bypass the mandatory minimum and apply only 

a fine. Tempo argues that this “language is directly contradictory, and this lack of clarity . . . 

constitutes a notice deficiency, raising serious due process concerns.” (Def. Tempo Br. at 41). 

But the Supreme Court has already addressed this discrepancy:

Although this language, read literally, suggests that courts may impose a fine or a 

prison term, it is undisputed here that the “death results” provision mandates a 

prison sentence. Courts of Appeals have concluded, in effect, that the “or” is a 

scrivener’s error. The best evidence of that is the concluding sentence of 

§ 841(b)(1)(C), which states that a court “shall not place on probation or suspend 

the sentence of any person sentenced under the provisions of this subparagraph 

which provide for a mandatory term of imprisonment if death or serious bodily 

injury results.”

Burrage, 571 U.S. at 209 n.2 (internal citations omitted) (citing United States v. Musser, 

856 F.2d 1484, 1486 (11th Cir. 1988) (per curiam)). Any ambiguity in the “or both” language 

has thus been sufficiently clarified to put people on notice of the mandatory minimum. See 

United States v. Lanier, 520 U.S. 259, 267 (1997) (stating that the touchstone of notice is 

whether the statute is clear or whether courts have made clear that the statute prohibits the 

defendant’s conduct). Section 841(b)(1)(C) is not void for vagueness.12

12Tempo also argues that the death-or-injury-results enhancement is “facially overbroad,” (Def. Tempo Br. 

at 41), but his argument is essentially a recitation of his vagueness arguments. He argues that “[t]he statute on its 

face continues to leave our courts guessing as to what Congress intended, so surely it cannot be held to provide fair 

notice to a person of ordinary intelligence.” (Id.) However, “for a statute to be found unconstitutional on its face on 

overbreadth grounds, there must be a realistic danger that the statute itself will significantly compromise recognized 

First Amendment protections of parties not before the court.” Hart, 635 F.3d at 857 (quoting Leonardson v. City of 

E. Lansing, 896 F.2d 190, 195 (6th Cir. 1990)). Tempo has not identified any protected conduct or otherwise 

indicated that the law cannot be applied constitutionally. Thus, this argument lacks merit.
Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 55

III. CONCLUSION

For these reasons, we AFFIRM Defendant Tempo’s convictions and sentence, AFFIRM

Defendant Sadler’s convictions, but VACATE Defendant Sadler’s sentence, and REMAND for 

a new trial on the sole question of whether Defendant Sadler was within the chain of distribution 

as required before imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(C).