United States v. Davis, No. 19-3094

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: MURPHY, Circuit Judge.
• Citation: 970 F.3d 650
• Decision Date: 14 August 2020
• Docket Number: No. 19-3094
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell DAVIS, Defendant-Appellant.

970 F.3d 650

UNITED STATES of America, Plaintiff-Appellee,
v.
Russell DAVIS, Defendant-Appellant.

No. 19-3094

United States Court of Appeals, Sixth Circuit.

Argued: June 17, 2020
Decided and Filed: August 14, 2020
Rehearing En Banc Denied September 18, 2020

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.

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

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. 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

970 F.3d 654

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 Castro-White'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 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.

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,

970 F.3d 655

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. Castro-White 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 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 Castro-White 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...