RECOMMENDED FOR PUBLICATION

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

File Name: 20a0262p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUSSELL DAVIS,

Defendant-Appellant.

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No. 19-3094

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:16-cr-00260-1—Christopher A. Boyko, District Judge.

Argued: June 17, 2020

Decided and Filed: August 14, 2020

Before: GILMAN, KETHLEDGE, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Dennis C. Belli, Columbus, Ohio, for Appellant. Matthew B. Kall, UNITED 

STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Dennis C. 

Belli, Columbus, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S 

OFFICE, Cleveland, Ohio, for Appellee.

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OPINION

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MURPHY, Circuit Judge. Federal drug laws impose enhanced sentences if a “death 

results” from the use of the drugs that a defendant distributes. This “death-results” enhancement 

led the district court in this case to impose a life sentence on Russell Davis. Davis sold drugs 

that were later shared with Jacob Castro-White, who tragically died of a fentanyl overdose. 

>
No. 19-3094 United States v. Davis Page 2

Davis argues that the enhancement does not apply because he did not sell drugs directly to 

Castro-White. The enhancement’s text, however, does not require such a buyer-seller 

relationship with the victim. We also reject Davis’s other evidentiary and instructional claims. 

At the same time, Davis raises a valid challenge to the warrant that allowed the police to 

search his home and seize his cellphone. The government now concedes that the affidavit 

supporting this warrant lacked probable cause. But the government asserts that the affiant gave 

additional unrecorded oral testimony to establish probable cause in front of the state magistrate 

who issued the warrant. The Fourth Amendment does not mandate recorded testimony, so we 

will allow the government to offer evidence of this additional testimony in an evidentiary hearing 

on remand. We thus deny most of Davis’s claims, but remand for limited proceedings on this 

Fourth Amendment issue. 

I

Jacob Castro-White was an avid bodybuilder living in Lorain, Ohio. Many of the 23-

year-old’s friends and family knew that he used steroids and protein powders. Some knew that 

he used other substances, like thyroid medications, to further enhance his appearance. And some 

knew that he smoked marijuana and used cocaine. But Castro-White concealed his abuse of 

opiates from all but a few friends. His mother was thus blindsided when she discovered her 

young son dead in his bedroom on the morning of March 7, 2016. 

A first responder observed drug paraphernalia in Castro-White’s room: needles, a spoon, 

and a silver wrapper containing a white powdered substance. Castro-White also had a “foam 

cone” covering his mouth, an all-too-common sign of an opiate overdose. The responder called 

Detective Ernest Sivert of the Lorain Police Department to the scene. Sivert retraced CastroWhite’s final hours through cellphone data and interviews with friends—including, most 

importantly, Zaharias (“Harry”) Karaplis and Corey Stock.

Sivert’s investigation identified Russell (“Red”) Davis as the dealer who sold the drugs 

that killed Castro-White. The government indicted Davis on two drug counts. 21 U.S.C. 

§ 841(a)(1). The first charged Davis with distributing a substance containing fentanyl, and the 

second charged him with possessing with intent to distribute a mixture containing cocaine. The 
No. 19-3094 United States v. Davis Page 3

indictment alleged that Davis should receive an increased sentence on the first count because a 

death had “result[ed] from” the fentanyl that he distributed. Id. § 841(b)(1)(C). Davis pleaded 

guilty to the cocaine charge but stood trial on the fentanyl charge (with its increased 

punishment). 

At trial, the parties did not dispute that Davis was a drug dealer. His counsel conceded 

that the evidence was “overwhelming” that Davis sold heroin to Stock and Karaplis. Both men 

testified that they often bought heroin from Davis before Castro-White’s death. The parties 

instead disputed whether Davis sold the specific drugs that killed Castro-White on March 7. The 

government argued that Davis sold these drugs to Karaplis just after midnight. Davis argued that 

the drugs came from someone else, such as Stock’s friend Erika Matus. 

The government offered a simple theme: “Follow the phones.” It relied on data from the 

cellphones of Castro-White, Karaplis, Stock, and Davis. The police recovered text messages 

sent to and from Castro-White’s phone from March 5 to 7 through a subpoena to Verizon. They 

also seized Davis’s phone during a search of his home and were able to retrieve his call logs and 

text messages. Subpoenas to Karaplis’s and Stock’s wireless carriers turned up their phones’ toll 

records and cell-site data. Toll records memorialized “the calls and text messages placed to and 

from” the phones without disclosing the actual content of any calls or texts. Cell-site data 

identified the phones’ general locations at given points in time. 

The government’s evidence showed that Castro-White started the evening of March 6 

watching a movie with his girlfriend. A little before 10:00 p.m., he visited a friend’s home and 

smoked marijuana. He also began texting Stock about a heroin buy, asking him if he was 

“grabbing at all.” Stock replied that he had already done so. After some back-and-forth, Stock 

told Castro-White: “I can ask Erika if they have some extra to sell but you probably won’t feel it 

at all, I did a two point shot over there house yesterday didn’t feel a th[ing].” Castro-White 

declined: “Yeah I’ll just wait for next time with red” (Davis’s nickname). Stock then said, “I’ll 

let you know if I go again tonight or if someone else calls me.” At 10:46 p.m., Castro-White 

responded: “Ok thank you.” That was the last Stock heard from him. 
No. 19-3094 United States v. Davis Page 4

Castro-White and Karaplis began texting less than an hour later about purchasing heroin 

from Davis. Castro-White asked Karaplis if he was planning to buy heroin, and the two spoke 

on the phone. After they hung up, Karaplis texted Davis: “Hey man can I get for me dude.” 

Davis did not respond, so Karaplis called him several times. Davis finally returned his call at 

12:06 a.m. Karaplis said they discussed a heroin buy. At 12:15, he texted Castro-White that 

Davis had been “asleep” and that Castro-White should pick Karaplis up quickly because Davis 

“might fall back asleep.” Castro-White responded: “On way.” At 12:18, he texted Karaplis: 

“Outside.” Davis had asked for cigarettes, so they stopped at a gas station on the way. Karaplis 

called Davis at 12:34 and said he was outside. Cell-site data confirmed that Karaplis’s and 

Castro-White’s phones moved from a location near Karaplis’s home to one near Davis’s. 

Karaplis walked from Castro-White’s car to Davis’s house, gave Davis $50 and a pack of 

Newports, and took what he thought was heroin. 

Karaplis and Castro-White drove to Castro-White’s house to split the drugs. CastroWhite took a “shot” from his portion, with some left over. They then left for Karaplis’s home. 

On arriving, Karaplis also took a shot in his usual amount. He “almost fell out of [his] chair,” 

and Castro-White asked if he was okay. The next thing Karaplis remembered, he “woke up on 

the ground soaking wet and [Castro-White] was gone.” Karaplis frantically called and texted 

Castro-White beginning at 2:51 a.m. He called Castro-White 11 times between 2:51 and 3:04 

and texted him to “please call me asap.” There was no answer. Karaplis began calling again at 

6:41 a.m., trying Castro-White over 20 times between 8 and 9 a.m. Karaplis was worried about 

Castro-White because his shot had been “the strongest thing [he had] ever taken.” 

In the weeks after Castro-White’s death, Stock told Davis that the drugs he had sold 

Karaplis had killed one of their friends. According to Stock, Davis responded: “Okay, I’m not 

too worried about that because I never sold anything to that person. I do not know him. I just 

sold to you and Harry.” 

While Castro-White and Karaplis had thought they bought heroin, the government’s 

evidence showed that Castro-White died of an overdose from fentanyl (a much stronger drug). A 

toxicologist called the “high” amount of fentanyl in Castro-White’s blood “within that area of 
No. 19-3094 United States v. Davis Page 5

concentrations that have been detected in deaths due to fentanyl.” And the Lorain County 

Coroner opined that Castro-White died of a fentanyl overdose between 1:00 and 2:00 a.m. 

In his defense, Davis offered evidence to suggest that someone else (possibly Matus) sold 

the fatal drugs. He pointed to a text message on March 7 at 11:21 a.m. in which he told Karaplis 

“Was sleep.” Because this text came after Karaplis’s text from the night before (“Hey man can I 

get for me dude”), Davis argued that it showed that the two had not connected and that he was 

explaining why he did not respond. (For her part, Matus denied ever selling drugs to CastroWhite or Karaplis and testified that she did not know them well.) 

The jury returned a guilty verdict on the fentanyl count and the death-results 

enhancement. Because Davis had a prior conviction for a felony drug offense, the district court 

imposed a mandatory life sentence to run concurrent to a 360-month sentence on the other 

cocaine count. 

II

Davis raises six challenges on appeal. He argues at the outset that the government 

wrongly imposed the death-results enhancement for three reasons. He next raises an evidentiary 

claim against the coroner’s expert opinion and an instructional claim against the district court’s 

response to a jury question. He lastly asserts Fourth Amendment claims against the search of his 

home.

A. Death-Results Enhancement

Davis’s first three arguments challenge his life sentence. Federal law (in particular, 

21 U.S.C. § 841(a)) prohibits the knowing distribution of a controlled substance. Section 841(b) 

then lists different sentences for those “who violate[] subsection (a)” depending on the drug type 

and quantity. Id. § 841(b). Section 841(b)(1)(C) lists the sentences for fentanyl, a controlled 

substance in Schedule II. See United States v. Jeffries, 958 F.3d 517, 519 (6th Cir. 2020). This 

subparagraph imposes a mandatory life sentence if a defendant with a prior felony drug 

conviction distributes an illegal substance and death results from its use: 
No. 19-3094 United States v. Davis Page 6

If any person commits such a violation after a prior conviction for a felony drug 

offense has become final, such person shall be sentenced to a term of 

imprisonment of not more than 30 years and if death or serious bodily injury 

results from the use of such substance shall be sentenced to life imprisonment, a 

fine not to exceed the greater of twice that authorized in accordance with the 

provisions of Title 18 or $2,000,000 if the defendant is an individual or 

$10,000,000 if the defendant is other than an individual, or both.

21 U.S.C. § 841(b)(1)(C) (emphasis added). 

Davis asserts (1) that the district court improperly instructed the jury about this 

enhancement, (2) that the evidence was insufficient to convict him of it, and (3) that the evidence 

amounted to a “constructive amendment” of his indictment. These three arguments all share the 

same legal premise about the proper interpretation of this enhancement. We thus begin with 

Davis’s general legal interpretation and then turn to his specific arguments. 

1

In Davis’s view, a defendant cannot receive the death-results enhancement unless the 

defendant directly delivered the drug to the person who died or provided the drug to that victim 

through a coconspirator. Because Davis did not sell drugs directly to Castro-White or conspire 

with Karaplis, his argument goes, his conduct should not have triggered the enhancement. Davis 

misreads § 841(b)(1)(C). The 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. This reading follows from both text and precedent.

We begin with the text’s ordinary meaning. Burrage v. United States, 571 U.S. 204, 

210–11 (2014). By its terms, the enhancement applies if there is a “death or serious bodily 

injury” and this death or serious bodily injury “results from” the “use of such substance” (the 

drug that the defendant distributed in violation of § 841(a)). 21 U.S.C. § 841(b)(1)(C). Notably 

absent: any requirement that the defendant directly sell the fatal drugs to the victim who died or 

conspire with the person who did. The text requires only that the defendant have a connection to 

the death-causing drugs, not to the deceased person. That is, the drugs supporting a defendant’s 

§ 841(a) conviction must be the same drugs that caused death. If so, the enhancement applies 

whether or not the defendant has a connection to (or even knowledge of) the person who died.
No. 19-3094 United States v. Davis Page 7

Consider a defendant who runs a cartel that manufactures large amounts of fentanyl. The 

defendant’s “manufacture” of that fentanyl would violate § 841(a)(1). But the defendant might 

sell this fentanyl to wholesalers, not end users. And the wholesalers might resell it through a 

diverse chain ending with small dealers. If the government proves that the fentanyl the 

defendant manufactured is the same fentanyl that caused a user’s death, § 841(b)(1)(C)’s text 

triggers this enhancement even if the defendant did not know the dealer or the decedent. Any 

other reading would require us to add words to the statute that are not there. 

Precedent confirms this view. In Burrage, the Supreme Court held that the phrase 

“results from” requires a but-for causal connection between the victim’s use of the drug and the 

victim’s death. 571 U.S. at 211–14. The Court nowhere suggested that the government must 

show, in addition, a close connection between the distribution of the drug and that death. To the 

contrary, Burrage emphasized the need “to apply the statute as it is written[.]” Id. at 218. We 

expanded on this point in Jeffries. That case rejected the argument that the enhancement 

includes a proximate-causation element requiring proof that the victim’s death was the 

foreseeable result of the defendant’s conduct. 958 F.3d at 520–21. As we observed, 

§ 841(b)(1)(C) “does not speak to the defendant’s conduct or the general causal connection 

between § 841(a)(1) and the death.” Id. at 521. Rather, the text asks only whether the victim’s 

use of the drug caused the death. Id. 

Davis’s response does not change things. He offers no reading of § 841(b)(1)(C)’s text 

that supports his view that a defendant must deliver the drug directly to the victim or be linked to 

the victim through coconspirators. Instead, he bases this view on two decisions—United States 

v. Swiney, 203 F.3d 397 (6th Cir. 2000), and United States v. Hamm, 952 F.3d 728 (6th Cir. 

2020). Swiney explained how the enhancement applies to defendants in a drug conspiracy under 

21 U.S.C. § 846. 203 F.3d at 401–06. It relied on a Sentencing Guideline to hold that a 

coconspirator must be “part of the distribution chain that [led] to [the victim’s] death.” Id. at 

406. Hamm held that this rule extends to coconspirators convicted of a substantive offense under 

§ 841(a) (not a conspiracy offense under § 846) if the theory of the coconspirators’ substantive 

liability is that they conspired with the person who committed the offense. 952 F.3d at 744–47.
No. 19-3094 United States v. Davis Page 8

Neither decision applies here. Davis was not charged with a conspiracy under § 846. See 

Swiney, 203 F.3d at 400. Nor was he held liable for his § 841(a) offense on a conspiracy theory. 

See Hamm, 952 F.3d at 744. And nothing in Swiney or Hamm suggests that those decisions 

apply to a case involving a substantive charge under § 841(a) not predicated on a conspiracy. 

The decisions are thus “irrelevant here because [Davis] 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.” 

United States v. Atkins, 289 F. App’x 872, 877 (6th Cir. 2008); see also United States v. 

Carbajal, 290 F.3d 277, 284–85 (5th Cir. 2002); United States v. Soler, 275 F.3d 146, 152 (1st 

Cir. 2002). 

2

Under this reading of the death-results enhancement, Davis’s jury-instruction, 

sufficiency-of-the-evidence, and constructive-amendment claims all fail.

a. Jury Instructions. Davis argues that the district court erred by failing to instruct the 

jury that he could be liable only if he distributed the fatal drugs directly to the decedent or 

conspired with the person who did. As explained, this view misstates the law.

b. Sufficiency of the Evidence. Davis also claims that the evidence could not support this 

enhancement on the same ground—because he did not sell the drugs directly to Castro-White or 

conspire with Karaplis. Yet, under a proper view of the law, sufficient evidence existed. For a 

sufficiency challenge, we ask “whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Hamm, 952 F.3d at 736 (citation omitted). 

Here, a rational jury could have found that the drugs Castro-White used on March 7 were 

the drugs that Davis distributed to Karaplis, in violation of § 841(a). Karaplis testified that he 

got the drugs from Davis and split them with Castro-White. And text messages, call records, and 

cell-site data corroborated this testimony. A rational jury next could have found that CastroWhite’s death “result[ed] from [his] use of” Davis’s drugs. 21 U.S.C. § 841(b)(1)(C). Based on 

the fentanyl in Castro-White’s blood, the coroner opined that “the use of fentanyl was the but for 

cause of his death.” Cf. Hamm, 952 F.3d at 737–38. The enhancement requires nothing more.
No. 19-3094 United States v. Davis Page 9

In response, Davis cites United States v. Ewing, 749 F. App’x 317 (6th Cir. 2018), which 

found insufficient evidence for this enhancement. Id. at 328–29. The defendant had sold the 

victim heroin laced with fentanyl, but only fentanyl (not heroin) was in the victim’s blood. Id. 

So the defendant’s drugs did not cause the victim’s death. Id. Davis argues that his case is like 

Ewing because Karaplis testified that Davis sold him heroin, but Castro-White died from 

fentanyl. Yet a rational jury could find that Karaplis thought he was getting heroin but 

unknowingly received the much stronger fentanyl. Karaplis and Stock suspected Davis might be 

selling fentanyl because of the potency of his drugs. A scientist who sees “thousands of cases a 

year” also testified that she cannot visually distinguish the two drugs. Lastly, ample evidence 

suggests that Castro-White used Davis’s opiates (and not others) just before his death.

c. Constructive Amendment. Davis lastly argues that the evidence and jury instructions 

differed from the indictment’s allegations to such an extent that his trial resulted in a 

“constructive amendment” of his indictment. Davis did not raise this objection in the district 

court, so we review it for plain error. United States v. Budd, 496 F.3d 517, 528 (6th Cir. 2007).

Under the Fifth Amendment, “[n]o person shall be held to answer for a capital, or 

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]” U.S. 

Const. amend. V. In Stirone v. United States, 361 U.S. 212 (1960), the Court held that this 

provision bars the government from charging the defendant of one crime in an indictment and 

convicting the defendant of another crime at trial. Id. at 217–19. The Stirone indictment had 

charged a Hobbs Act violation for interfering with the interstate commerce in one commodity: 

sand. Id. at 213. Yet the jury instructions allowed the jury to convict the defendant for 

interfering with the interstate commerce in another commodity: steel. Id. at 214. The Court held 

that interference with commerce is an “essential element[]” of the crime and that the indictment 

alleged only one type of interference, so the “conviction must rest upon that charge and not 

another[.]” Id. at 218. 

Courts have long called Stirone a case about a “constructive amendment” of an 

indictment (it did not use the phrase) and have distinguished such an amendment from a mere 

“variance” between the trial and indictment. See United States v. Beeler, 587 F.2d 340, 342 (6th 

Cir. 1978) (adopting Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969)); United States v. 
No. 19-3094 United States v. Davis Page 10

Withers, 960 F.3d 922, 935 (7th Cir. 2020) (Easterbrook, J., concurring) (retracing history). 

A “constructive amendment” occurs if the instructions and evidence “so modify essential 

elements of the offense charged that there is a substantial likelihood the defendant [was] 

convicted of an offense other than that charged in the indictment.” United States v. Warshak, 

631 F.3d 266, 313 (6th Cir. 2010) (citation omitted). A mere variance occurs if the evidence 

“proves facts materially different from those alleged in the indictment.” Budd, 496 F.3d at 521 

(citation omitted). 

These definitions draw a “blurry,” “sketchy,” or “shadowy” line between an amendment 

and a variance. See United States v. Beasley, 583 F.3d 384, 389 (6th Cir. 2009); United States v. 

Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002); United States v. Hathaway, 798 F.2d 902, 910 

(6th Cir. 1986) (citation omitted). Yet the category of an alleged divergence between the 

indictment and trial matters greatly. A constructive amendment is “per se prejudicial,” so we 

must reverse without a showing that the difference between the indictment and trial prejudiced 

the defendant. United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006) (citation omitted). 

A variance, on the other hand, must “affect[] a substantial right,” so we may reverse only if the 

defendant proves prejudice. United States v. Mize, 814 F.3d 401, 409 (6th Cir. 2016) (citation 

omitted).

What is Davis’s constructive-amendment theory? He again relies on his mistaken view 

of the law. The indictment stated that Davis “distributed to” Castro-White: 

On or about March 7, 2016, in Lorain, Ohio, IND-1, a person whose identity is 

known to the Grand Jury, did fatally ingest and overdose on a controlled 

substance, namely fentanyl, which RUSSELL DAVIS, aka “Red,” had distributed 

to IND-1. As a result of RUSSELL DAVIS’ distribution of fentanyl alleged in 

Count 1, death did result from the use of fentanyl, a Schedule II controlled 

substance. 

Indictment, R.1, PageID #1–2 (emphasis added). The jury instructions, however, required the 

jury to find only that Castro-White “died as a consequence of his use of the drugs” that Davis 

sold, without requiring a finding that Davis himself distributed the drugs to Castro-White. The 

evidence likewise showed that Davis distributed the drugs to Karaplis.
No. 19-3094 United States v. Davis Page 11

This difference did not create a constructive amendment. Davis’s theory turns on his 

view that the enhancement required, as an essential element, that the jury find he sold the drugs 

directly to Castro-White. See Stirone, 361 U.S. at 218. It did not. The enhancement required 

the jury to find only that fentanyl caused Castro-White’s death and that this fentanyl had been 

distributed by Davis. For those “essential elements,” the indictment’s facts matched those at 

trial. See id. And even if the indictment’s language that Davis “distributed to” Castro-White 

could be read to mean directly to him, the language was “surplusage.” Id.; Hathaway, 798 F.2d 

at 911. The indictment did not thereby charge a different offense—as it would have if, say, it 

identified a decedent other than Castro-White. Davis thus has not shown that he received an 

enhanced sentence for conduct “other than that charged in the indictment.” Warshak, 631 F.3d at 

313 (citation omitted).

Davis does not even assert the fallback position that a variance occurred. That is for 

good reason. He could not show prejudice from the difference between the indictment and trial. 

He does not argue that he lacked notice of the government’s factual theory. See Beasley, 

583 F.3d at 392. He also “does not assert that he was unable to adequately prepare his defense” 

or that any difference could expose him to the risk of “future prosecutions based upon the same 

conduct.” Id. 

All told, the district court properly imposed the death-results enhancement in this case.

B. Coroner Testimony

Davis next argues that the district court wrongly allowed the coroner, Dr. Stephen Evans, 

to give expert testimony that fentanyl caused Castro-White’s death. Davis asserts that Evans’s 

failure to order an autopsy rendered his opinion inadmissible under Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993). Davis did not object at trial, so we again review his 

claim for plain error. United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007).

Under Daubert, a district court must “ensur[e] that an expert’s testimony both rests on a 

reliable foundation and is relevant to the task at hand.” 509 U.S. at 597. Federal Rule of 

Evidence 702 codifies these standards, imposing four requirements that likewise seek to ensure 
No. 19-3094 United States v. Davis Page 12

that “scientific testimony” is “both ‘relevant’ and ‘reliable.’” Madej v. Maiden, 951 F.3d 364, 

369 (6th Cir. 2020) (citation omitted); Fed. R. Evid. 702(a)–(d). 

Here, there is no dispute that Dr. Evans’s testimony was relevant because the government 

needed to prove that Davis’s drugs caused Castro-White’s death. See Burrage, 571 U.S. at 218–

19. This case instead concerns reliability. We have held that experts who give medicalcausation opinions may meet Daubert’s reliability rules through a “differential diagnosis” or 

“differential etiology.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010). That 

method seeks to “rule in” potential causes of a condition and “rule out” other causes. Id. We 

have viewed a differential diagnosis as sufficiently reliable when a doctor: “(1) objectively 

ascertains, to the extent possible, the nature of the patient’s injury”; “(2) ‘rules in’ one or more 

causes of the injury using a valid methodology”; and “(3) engages in ‘standard diagnostic 

techniques by which doctors normally rule out alternative causes’ to reach a conclusion as to 

which cause is most likely.” Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 179 (6th Cir. 2009) 

(citation omitted). 

When reviewed for plain error, Dr. Evans’s opinion meets this test. Davis does not 

dispute that Dr. Evans’s opinion satisfied our framework’s first two elements. Dr. Evans 

explained that his opinion that fentanyl caused Castro-White’s death rested on his review of the 

scene, the body’s condition, the police reports, and the lab reports. His investigation of the scene 

revealed drug paraphernalia that tested positive for heroin and fentanyl. And Castro-White’s 

mouth had a “foam cone” typical of narcotics overdoses. Dr. Evans also ordered blood and urine

screens; the urine screen tested positive for opiates and marijuana, while the blood screen 

showed a fentanyl level that was “three times the highest therapeutic dose[.]” 

Davis instead focuses on the third differential-diagnosis element. He says that Dr. 

Evans’s failure to order an autopsy means that he did not engage in “standard diagnostic 

techniques” to rule out other causes of death (such as Castro-White’s asthma or steroid use). 

Davis’s argument contains both legal and factual problems. Legally, we do not typically find 

plain error where no “binding case law . . . answers the question presented[.]” United States v. 

Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (citation omitted). And we have found no case 
No. 19-3094 United States v. Davis Page 13

from our court (or others) holding that an autopsy is always a required “diagnostic technique” 

before an expert may opine on a cause of death. 

Factually, Dr. Evans explained that coroners do not always need autopsies. If he can 

identify the cause of death using other tools, he does so: “We don’t disturb a body if we don’t 

need to disturb a body.” As far as we can tell on this record, Evans applied “the same level of 

intellectual rigor that characterizes the practice of an expert in the relevant field.” Best, 563 F.3d 

at 181 (citation omitted). 

Evans also explained why “an autopsy was not indicated” in this case, including the clear 

signs of an overdose, as well as the fact that Castro-White was young and healthy. Although 

Evans knew that Castro-White used steroids and had asthma, he did not need an autopsy to rule 

out those factors. A steroid death would be “something completely different than what we saw.” 

Steroids lead to “long-term problems but not usually acute problems like this.” Similarly, the 

scene did not indicate that Castro-White had died of an asthma attack. A person having an 

asthma attack experiences “air hunger” and will “go crazy trying to get air[.]” The person does 

not “die[] laying in bed calmly.” A “foam cone” also does not usually occur outside narcotics 

overdoses. 

None of Davis’s cases suggest the contrary. In Johnson v. Memphis Light Gas & Water 

Division, 695 F. App’x 131 (6th Cir. 2017), for example, we noted that an expert’s “autopsy 

report and testimony . . . demonstrate[d] that he sufficiently ruled out alternative causes of 

death.” Id. at 141 (emphasis added). Johnson says nothing about whether an autopsy is always 

necessary. 

Davis thus turns to the facts, attacking Dr. Evans’s reasons for dismissing asthma as a 

cause of death. Evans relied on a statement from Castro-White’s mother that he only 

occasionally used an inhaler, but a friend testified that Castro-White had been using his inhaler 

more often before his death. Davis also questions the basis for Evans’s belief that Castro-White 

died calmly. Neither argument suggests that Evans’s approach was so unsound as to render his 

opinion inadmissible. Although the lack of an autopsy may have affected the weight the jury 
No. 19-3094 United States v. Davis Page 14

should give Evans’s opinion, it did not bar the opinion’s “threshold admissibility” on our plainerror review. Best, 563 F.3d at 182.

C. Jury Question

Davis also challenges the district court’s response to a jury question about the phrase “on 

or about.” The indictment charged Davis with distributing fentanyl “[o]n or about” March 7, 

2016. Yet the parties’ evidence and argument showed that the distribution occurred specifically

on March 7. So Davis asked the district court to omit the pattern jury instruction defining “on or 

about” to mean a date reasonably close in time to the date in the indictment. Davis did not want 

the jury to think it could rely on other drug sales, especially because background evidence 

showed that Davis had sold other drugs to Stock (who shared them with Castro-White) earlier on 

March 6. The court agreed and omitted this instruction. Yet the parties’ proposed instructions 

still used this undefined “on or about” phrase. They charged that “the Government must prove 

that [Castro-White] died as a consequence of his use of the drugs[] that [Davis] distributed on or 

about” March 7. 

During deliberations, the jury submitted the following question: “Charge 1 alleges that 

Red distributed drugs ‘on or about March 7th.’ What is the time frame of ‘on or about?’” Davis 

asked the court to respond “that the evidence presented was that the transaction involved 

occurred on March 7 at 12:34 a.m.” The court responded differently: “‘On or about’ must be 

viewed and framed in light of all the evidence the jury must reasonably consider in reaching a 

verdict on Count 1 and, if applicable, the death enhancement.” Davis moved for a mistrial and a 

new trial based on this response. The court denied his motions. It believed that the safest course 

was to “refocus[] the jury on the evidence.” And since “[b]oth parties argued that the fatal 

transaction occurred” on March 7, it was “pure speculation” to conclude that the jury would find 

that other sales caused Castro-White’s death. 

On appeal, Davis argues that this supplemental instruction was legally wrong and 

harmful because it allowed the jury to find that the drugs that Davis had sold earlier on March 6 

caused Castro-White’s death. We see no prejudicial error.
No. 19-3094 United States v. Davis Page 15

A district court responding to a question from a deliberating jury faces a difficult task. 

The court “may and should make clear the law the jury is bound to apply[.]” United States v. 

Rowan, 518 F.2d 685, 693 (6th Cir. 1975). Yet the court “must be careful not to invade the 

jury’s province as fact-finder.” United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989). 

The court also must decide how best to resolve these competing concerns quickly to respect the 

jury’s time. We thus typically leave the proper response to the district court’s “sound discretion” 

and will reverse only if the court abuses that discretion in a way that causes prejudice. Id. at 

1568 (citation omitted); see United States v. Castle, 625 F. App’x 279, 283 (6th Cir. 2015). 

When discussing the proper response to jury questions, our cases have drawn a 

distinction between questions of law and questions of fact. If the jury asks a question about the 

law, we have noted that the district court generally “should clear away its difficulties ‘with 

concrete accuracy.’” Nunez, 889 F.2d at 1568 (citation omitted); United States v. Fisher, 648 

F.3d 442, 448 (6th Cir. 2011). If the jury asks a question about the facts, we have noted that the 

court may generally instruct the jury “to rely on its own recollection” of the evidence so as not to 

bias its decisionmaking. United States v. McClendon, 362 F. App’x 475, 483 (6th Cir. 2010). 

Under this framework, the district court did not abuse its discretion. To begin with, 

Davis put the court in a dilemma by advocating for the court to omit the definition of “on or 

about” but ignoring that the parties’ proposed instructions used that phrase. The jury asked a 

legal question about the meaning of the phrase “on or about.” To answer that question “with 

concrete accuracy,” the court would have needed to give the very model instruction about “on or 

about” that Davis opposed. Nunez, 889 F.2d at 1568 (citation omitted). Davis, by contrast, 

asked the court to give a factual response to this legal question: “that the evidence presented was 

that the transaction involved occurred on March 7 at 12:34 a.m.” This response would have 

“invade[d] the jury’s province as fact-finder” by telling it what facts to find. Id. at 1569. Given 

the circumstances, the district court did not abuse its discretion with what was essentially a 

compromise ruling directing the jury to the evidence. 

Regardless, its response could not have caused “prejudice.” Id. at 1568 (citation 

omitted); United States v. Washington, 702 F.3d 886, 895 (6th Cir. 2012). We see no risk that 

the jury based its verdict on the earlier March 6 sale because both parties presented a case that 
No. 19-3094 United States v. Davis Page 16

Castro-White obtained the lethal drugs after midnight on March 7. So, when arguing for a 

mistrial, Davis’s counsel agreed that “there’s literally zero evidence in the record that anything 

that Castro-White obtained at 1:10 p.m. on March 6 was ingested by him which resulted in his 

death.” And Davis asked to omit the “on or about” instruction precisely because the parties 

offered no such theory. See United States v. Combs, 33 F.3d 667, 670 (6th Cir. 1994). 

D. Search Warrant

Davis lastly challenges the district court’s denial of his motion to suppress evidence 

seized from Davis’s home on the ground that the search violated his Fourth Amendment rights. 

1

About a month after Castro-White’s death, Detective Sivert sought the warrant to search 

Davis’s home. At trial, Sivert detailed his investigation during that month. Castro-White’s 

iPhone was locked, but Sivert could see the missed calls from “Harry.” He immediately 

interviewed Karaplis. Karaplis lied to him by saying that he refused to help Castro-White buy 

drugs. Karaplis also mentioned a person nicknamed “Red” as the possible drug source. 

Two days later, Sivert received Castro-White’s phone records from Verizon. On viewing 

Castro-White’s texts with Karaplis and Stock, Sivert concluded that Karaplis had not been 

“completely forthcoming.” In another interview, Karaplis told Sivert that Red was “some guy 

from Lorain,” but denied having his phone number. He also told Sivert that the “Corey” in the 

texts was Stock. When Sivert confronted Karaplis with the texts, Karaplis asked for a lawyer. 

Sivert then talked to Stock. Stock said he bought drugs from Red at a Garden Avenue home. 

On April 1, Sivert interviewed Karaplis with a lawyer. Karaplis admitted his role. He 

described Red and Red’s car and provided his phone number. Karaplis also pinpointed on 

Google Maps the precise Garden Avenue home where he bought drugs from Red on March 7. 

Sivert drove there. He spotted the car fitting the description that Karaplis had provided and ran 

the license plate. The car belonged to “Russell Davis.” Additional research showed that Davis 

went by the name “Big Red.” Sivert also created a “photo array” of individuals with 

characteristics like Davis’s, and Karaplis identified Davis with “100 percent” confidence. 
No. 19-3094 United States v. Davis Page 17

On April 11, Karaplis contacted Sivert about a text he received from Davis. At Sivert’s 

request, Karaplis made a “controlled call” to Davis. When Karaplis referenced Castro-White’s 

death, Davis asked: “How’d that turn out, did they sweat you a lot?” Sivert took Davis to be 

asking whether the police had interrogated Karaplis about the fatal overdose. 

After this call, Sivert sought the warrant to search Davis’s home for his cellphone. His 

affidavit to a magistrate at the Lorain County Municipal Court stated:

1. In the early morning hours of . . . March 7, 2016, Jacob Castro-White was in 

contact with Zaharias Karaplis, another heroin user, for the purpose of 

obtaining heroin.

2. Zaharias Karaplis and Jacob Castro-White made contact with a male known as 

“Red” and later identified as Russell Davis, on his cellular phone (216) 526-

8810 for the purpose of purchasing heroin, both through text and voice 

communication.

3. Zaharias Karaplis and Jacob Castro-White met with Russell “Red” Davis on 

March 7, 2016 for the purpose of buying heroin from him.

4. Jacob Castro-White ingested the purported heroin from Russell “Red” Davis 

and it caused him to overdose. The time between the purchase of the heroin 

from Russell “Red” Davis and the estimated time of death, by the Lorain 

County Coroner Steven Evans is approximately one (1) hour.

5. Toxicology tests conducted by the Lorain County Coroner’s Office revealed 

that Jacob Castro-White had a lethal dose of Fentynal in his sytem [sic].

6. On April 12, 2016 at 0945 hours Zaharias Karaplis received a text message 

from Russell “Red” Davis via his cellular telephone with the number (216) 

526-8810.

The affidavit concluded that Sivert had “determined that Russell ‘Red’ Davis is trafficking in 

heroin from the residence at 1832 Garden Avenue and is using his cellular telephone (216) 526-

8810 as an instrument of his trafficking business.” 

On April 12, the magistrate issued a warrant that authorized the police to search this 

Garden Avenue address for a phone with the identified number, records “showing ownership” of 

that phone, and records “that would identify those using/occupying” the residence. Police seized 

Davis’s phone, paperwork, marijuana and cocaine, and drug-related accessories. 
No. 19-3094 United States v. Davis Page 18

Davis moved to suppress this evidence. He argued that the affidavit failed to show 

probable cause that he lived at 1832 Garden Avenue and requested a hearing to decide whether 

Sivert deliberately omitted Karaplis’s initial lies. See Franks v. Delaware, 438 U.S. 154 (1978). 

The government’s response identified the steps Sivert took to connect Davis to this home. 

Although the affidavit omitted this information, the government believed that the magistrate 

would “testify that when appropriate he takes additional information from each affiant before 

issuing a warrant, which he then considers in unison with the affidavit[.]” And it expected to 

show that Sivert and the magistrate discussed the case before the magistrate issued the warrant. 

The district court scheduled a hearing, but later denied the motion without one. It held 

that the affidavit established a nexus between “the alleged criminal activity and [Davis’s] 

residence.” Relying on the government’s brief (not evidence), the court noted that Karaplis 

identified Davis’s home as the place of the drug buy and concluded that this identification 

established probable cause that Davis’s phone would be found there. 

2

Davis asserts three claims on appeal: that the magistrate lacked the authority to issue the 

warrant; that the warrant lacked probable cause linking Davis to the place to be searched; and 

that we should order a “Franks hearing” over whether the affidavit omitted material information. 

We reject Davis’s first claim on plain-error review. And we accept the government’s request for 

a limited remand on his second claim, so we need not consider Davis’s request for a hearing.

a. Magistrate’s Authority. Davis asserts that the warrant violated the Fourth Amendment 

because the magistrate lacked the authority to issue it under Ohio law. Yet Davis never raised 

this claim in the district court, so we review it only for plain error. See United States v. 

Ramamoorthy, 949 F.3d 955, 962 (6th Cir. 2020). Davis’s short analysis on this issue may 

(or may not) have identified an “error,” but it is certainly not one that we would call “plain.” 

The Fourth Amendment says that warrants “shall issue” only in certain circumstances, 

but does not identify who may issue them. The Supreme Court has set two rules: The issuer 

“must be neutral and detached, and he must be capable of determining whether probable cause 

exists for the requested arrest or search.” Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). 
No. 19-3094 United States v. Davis Page 19

Beyond this floor, states have “flexibility to determine who has the authority to issue warrants[.]” 

United States v. Master, 614 F.3d 236, 240 (6th Cir. 2010). And if a search otherwise complies 

with the Fourth Amendment, the Court generally holds that it does not matter that the search 

violated some state requirement. Virginia v. Moore, 553 U.S. 164, 176 (2008). Yet we have 

carved out an exception to that rule in this context: “State law determines what person is allowed 

to approve what warrant,” so a warrant issued by a person lacking state-law authority violates the 

Fourth Amendment too. Master, 614 F.3d at 239–41; United States v. Scott, 260 F.3d 512, 515 

(6th Cir. 2010); cf. United States v. Krueger, 809 F.3d 1109, 1123–24 (10th Cir. 2015) (Gorsuch, 

J., concurring). 

Here, a “magistrate” of the Lorain County Municipal Court issued the warrant. See Ohio 

Crim. R. 19. Whether this magistrate could validly do so raises a difficult state-law question. 

The Ohio statutes and rules governing the question are somewhat circular, the Ohio Supreme 

Court has not resolved the question, and few courts have considered it. On the one hand, state 

law provides that, after receiving a sufficient affidavit, “the judge or magistrate . . . shall issue 

the warrant, identifying in it the property and naming or describing the person or place to be 

searched.” Ohio Rev. Code § 2933.23. It thus permits two categories of officials to issue 

warrants: judges and magistrates. On the other hand, this law defines magistrate to “include[] 

county court judges, police justices, mayors of municipal corporation, and judges of other courts 

inferior to the court of common pleas.” Id. § 2931.01(A). It does not expressly include courtappointed “magistrates” under Ohio Rule of Criminal Procedure 19. And Ohio Rule of Criminal 

Procedure 2(F) defines “magistrate” for purposes of those rules not to “include an official 

included within the definition of magistrate contained in” the law. Ohio Crim. R. 2(F). That fact 

has led some state courts to hold that court-appointed magistrates may not issue warrants. State 

v. Kithcart, 995 N.E.2d 918, 923–24 (Ohio Ct. App. 2013); State v. Commins, 2009 WL 

4574886, at *4 (Ohio Ct. App. Dec. 7, 2009). 

The magistrate in this case thus may well have lacked authority to issue the warrant. But 

we need not resolve this point because no error was “obvious.” See Ramamoorthy, 949 F.3d at 

960. We “cannot correct an error pursuant to Rule 52(b) unless the error is clear under current 

law.” United States v. Olano, 507 U.S. 725, 734 (1993). The alleged state-law error here does 
No. 19-3094 United States v. Davis Page 20

not meet this test, at least not when viewed from the perspective of a federal court. To the 

contrary, the state law on this legal issue is both unclear and “undeveloped.” United States v. 

Christensen, 828 F.3d 763, 790 (9th Cir. 2015); United States v. Bain, 874 F.3d 1, 30–31 (1st 

Cir. 2017). 

b. Probable Cause. Davis also argues that Sivert’s affidavit did not establish probable 

cause to search 1832 Garden Avenue because it included no facts connecting Davis to this home. 

For an affidavit to establish probable cause, our precedent requires the affidavit to contain a 

sufficient nexus between the evidence sought and the place to be searched. United States v. 

Hang Le-Thy Tran, 433 F.3d 472, 482 (6th Cir. 2006); United States v. Carpenter, 360 F.3d 591, 

594 (6th Cir. 2004) (en banc). The government now concedes that Sivert’s affidavit did not 

contain enough facts tying Davis (and his phone) to this location. It raises two other arguments. 

The government asserts that if the admission of evidence seized from Davis’s home violated the 

exclusionary rule, the error was harmless in light of the other evidence showing his guilt. 

Alternatively, it argues that we should issue a limited remand for a hearing because Sivert gave 

additional oral testimony to the magistrate. We opt for the second course without resolving the 

first. The hearing could obviate the need to conduct this harmlessness inquiry. And the district 

court, having overseen the trial, should initially conduct the inquiry if it turns out to be 

necessary. 

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation[.]” U.S. Const. amend. IV. This “text does not require oral 

testimony to be transcribed or otherwise recorded. Nor did the American legal tradition at the 

time of the Fourth Amendment’s adoption.” United States v. Patton, 962 F.3d 972, 974 (7th Cir. 

2020) (citing William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–

1791, at 754–58 (2009)). We thus have long held that an affiant may supplement an inadequate 

affidavit with factual allegations “presented to the magistrate through sworn oral testimony.” 

Hang Le-Thy Tran, 433 F.3d at 482 (citing United States v. Shields, 978 F.2d 943, 946 (6th Cir. 

1992)). 

The government asserts that this process occurred here: The magistrate “recognized that 

[the warrant] was deficient and took additional oral information” before issuing it. Arg. 23:10–
No. 19-3094 United States v. Davis Page 21

28. Detective Sivert’s trial testimony, moreover, showed that he undertook significant efforts to 

connect Davis to the residence at 1832 Garden Avenue before seeking the warrant. He had 

learned that Davis lived at this location through interviews with Karaplis and Stock and had 

driven to the location and viewed a car registered to Davis parked there. As the district court 

noted, this evidence would establish the required nexus between Davis and the location. See 

Hang Le-Thy Tran, 433 F.3d at 482; cf. United States v. Feagan, 472 F. App’x 382, 394 (6th Cir. 

2012); United States v. Williams, 544 F.3d 683, 688 (6th Cir. 2008). Yet the district court relied 

on statements in the government’s brief for these facts, not statements in evidence. No evidence 

tells us whether Sivert conveyed these facts under oath to the magistrate before the magistrate 

issued the warrant, as the government claims. Cf. Patton, 962 F.3d at 973–74. The government 

had planned to introduce evidence detailing this testimony, but the district court opted to resolve 

the motion without a hearing. So we lack factual findings from the district court on what Sivert 

told the magistrate. 

As we have done in similar circumstances, we will order a remand “for the limited 

purpose” of conducting an evidentiary hearing on this probable-cause question. See United 

States v. Beals, 698 F.3d 248, 268 (6th Cir. 2012); 28 U.S.C. § 2106. Either party may then 

appeal, as appropriate, from the district court’s resolution. Beals, 698 F.3d at 268; 18 U.S.C. 

§ 3731; 28 U.S.C. § 1291.

* * *

We reject most of Davis’s claims on the merits. But we issue a limited remand for 

further proceedings consistent with this opinion on his Fourth Amendment claim.