USA v. Jermaine Lamar Harvard

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11616
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE LAMAR HARVARD,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:21-cr-00032-RBD-PRL-1
____________________
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2 Opinion of the Court 23-11616
Before WILSON, NEWSOM , and L UCK , Circuit Judges.
PER CURIAM:
Jermaine Harvard appeals his conviction for distribution of
fentanyl resulting in the death of a user. On appeal, Harvard argues
that his conviction is not supported by sufficient evidence because
the government failed to prove the identity of the victim and failed
to prove that he sold the victim a substance that was the but-for
cause of her death. He also argues that the district court abused its
discretion in admitting hearsay evidence as to the victim’s identity
and in admitting evidence of his uncharged conduct in violation of
Federal Rules of Evidence 403 and 404. After careful consideration
of the parties’ arguments, we affirm.
I
We review “sufficiency of evidence to support a conviction
de novo, viewing the evidence in the light most favorable to the gov-
ernment and drawing all reasonable inferences and credibility
choices in favor of the jury’s verdict.” United States v. Taylor, 480
F.3d 1025, 1026 (11th Cir. 2007). We review for plain error, how-
ever, when the defendant raises a claim challenging the sufficiency
of the evidence on a ground not argued below. See United States v.
Achey, 943 F.3d 909, 913 n.3 (11th Cir. 2019). Under plain error re-
view, we, at our discretion, may correct an error where the defend-
ant demonstrates: (1) an error occurred; (2) the error was plain; (3)
the error affected substantial rights; and (4) the error seriously af-
fected the fairness, integrity, or public reputation of judicial
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23-11616 Opinion of the Court 3
proceedings. Rosales-Mireles v. United States, 585 U.S. 129, 134–35
(2018).
“If a reasonable jury could conclude that the evidence estab-
lishes guilt beyond a reasonable doubt, the verdict will be af-
firmed.” Achey, 943 F.3d at 913 (quotation marks omitted). “A re-
viewing court’s limited determination on sufficiency review” does
not depend “on how the jury was instructed.” Musacchio v. United
States, 577 U.S. 237, 243–44 (2016) (holding that a sufficiency chal-
lenge should be assessed against the elements of the crime as
properly charged in the indictment). “It is not necessary that the
evidence exclude every reasonable hypothesis of innocence.”
United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).
In assessing the sufficiency of the evidence, we consider all
the evidence admitted at trial, even unconstitutionally admitted ev-
idence. See United States v. Smith, 459 F.3d 1276, 1286 n.10 (11th
Cir. 2006). “The test for sufficiency of evidence is identical regard-
less of whether the evidence is direct or circumstantial, and no dis-
tinction is to be made between the weight given to either direct or
circumstantial evidence.” United States v. Mieres-Borges, 919 F.2d
652, 656–57 (11th Cir. 1990) (quotation marks omitted). Circum-
stantial evidence is frequently more than sufficient to establish guilt
beyond a reasonable doubt. United States v. Henderson, 693 F.2d
1028, 1030 (11th Cir. 1982). “[C]ircumstantial evidence is not testi-
mony to the specific fact being asserted, but testimony to other
facts and circumstances from which the jury may infer that the fact
being asserted does or does not exist.” Id. at 1031. The jury must
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4 Opinion of the Court 23-11616
decide whether to draw the inference between the evidence pre-
sented and the fact asserted. Id. When the government relies on
circumstantial evidence to prove an element of the offense, reason-
able inferences from the evidence must support the conviction, not
mere speculation. United States v. Friske, 640 F.3d 1288, 1291 (11th
Cir. 2011).
To support a conviction under 21 U.S.C. § 841(a)(1), the gov-
ernment must show that the defendant knowingly or intentionally
distributed a controlled substance. A penalty-enhancement provi-
sion for § 841(a) provides that a defendant shall be sentenced to a
term of not less than 20 years’ imprisonment, or more than life, if
he distributed a Schedule I or II drug and death or serious bodily
injury “results from the use of such substance.” Id. § 841(b)(1)(C).
The government must prove that the use of the drug was the but-
for cause of the victim’s death. See Burrage v. United States, 571 U.S.
204, 210–14 (2014). “Because the ‘death results’ enhancement in-
crease[s] the minimum and maximum sentences to which [a de-
fendant is] exposed, it is an element that must be submitted to the
jury and found beyond a reasonable doubt.” Id. at 210. Fentanyl is
a Schedule II substance. 21 U.S.C. 812(c) Schedule II (b)(6).
We review de novo Harvard’s argument regarding the fail-
ure of the government to prove the substance that he sold the vic-
tim was the but-for cause of the victim’s death. Because we con-
clude that a reasonable jury could find that the evidence admitted
at trial established Harvard’s guilt beyond a reasonable doubt, we
will not disturb the jury’s verdict. Achey, 943 F.3d at 913. While
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23-11616 Opinion of the Court 5
the evidence showed that the victim was in communication with
several potential drug suppliers in the days leading up to her death,
the jury could reasonably conclude that Harvard distributed the
fentanyl to the victim that caused her death. The victim’s messages
indicate that she either did not buy drugs from those other suppli-
ers during the relevant time or did not like the drugs she had pre-
viously purchased from the other dealers. Meanwhile, the victim’s
messages with Harvard show that she purchased what she believed
to be “good” heroin from Harvard and that she would continue to
buy from him. The evidence further indicates that Harvard sold
fentanyl to the victim that she believed was heroin because she
texted him the day of her death, asking “It’s h right. . . I never seen
it white before,” and Harvard confirmed that it was. The narcotics
officer, however, testified that heroin is a brown substance. Alt-
hough Harvard contends that there were multiple untested pills
found on scene that may have contained the fentanyl that the vic-
tim used, the narcotics officer identified the pills as anti-anxiety or
depression medications, and there was no evidence that the pills
actually contained fentanyl. While the inculpatory evidence in this
case is not direct, the jury could reasonably infer from the substan-
tial circumstantial evidence that Harvard sold the victim fentanyl
that was the but-for cause of her death.1
1 To the extent Harvard argues that the fentanyl was not the but-for cause of the
victim’s death “if it only contributed to an overall effect” that resulted in her death,
the jury could have reasonably concluded that the fentanyl was the but-for cause of
the victim’s death based on the testimony of the medical examiner that the victim
died as a result of fentanyl toxicity and was otherwise healthy.
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6 Opinion of the Court 23-11616
We review Harvard’s argument that the government failed
to prove the identity of the decedent for plain error as he did not
challenge the sufficiency of the evidence on this ground below.
Harvard cannot show plain error because the decedent’s identity is
not an element of the offense that the government was required to
prove beyond a reasonable doubt. See 21 U.S.C. § 841.
II
We review a district court’s decision as to the admissibility
of evidence under a deferential abuse-of-discretion standard and
“will affirm even if we would have decided the other way.” United
States v. Burnette, 65 F.4th 591, 605–06 (11th Cir. 2023) (quotation
marks omitted). Accordingly, even erroneous evidentiary rulings
are only reversed if the resulting error was not harmless. United
States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001). An error is
harmless where it had “no substantial influence on the outcome
and sufficient evidence uninfected by error supports the verdict.”
Id. (quotation marks omitted).
Hearsay is an out-of-court statement that is offered as evi-
dence “to prove the truth of the matter asserted in the statement.”
Fed. R. Evid. 801(c). Hearsay evidence is generally inadmissible
unless it falls under one of the stated exceptions to the hearsay rule.
See Fed. R. Evid. 802. An out-of-court statement that is either (1)
offered to show its effect on the listener or (2) “more in the nature
of an order or a request” that, “to a large degree, [is] not even ca-
pable of being true or false,” is not hearsay. United States v. Rivera,
780 F.3d 1084, 1092 (11th Cir. 2015) (quotation marks omitted). An
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23-11616 Opinion of the Court 7
out-of-court statement may be admitted to explain the course of an
official’s investigative actions if “the probative value of the evi-
dence’s nonhearsay purpose is not substantially outweighed by the
danger of unfair prejudice caused by the impermissible hearsay use
of the statement.” United States v. Ransfer, 749 F.3d 914, 925 (11th
Cir. 2014) (quotation marks omitted).
A statement that is otherwise inadmissible hearsay is admis-
sible if it is a record of an event and (1) was made at or near the
time of the event by someone with knowledge of it; (2) was kept in
the course of a regularly conducted business activity; (3) making
the record was a regular practice of that activity; and (4) those con-
ditions are shown by the testimony of the custodian of the records
or another qualified witness. Fed. R. Evid. 803(6). We have noted
that reliability is the “touchstone of admissibility” under Rule
803(6) and that the district court has “broad discretion” to admit
evidence under this rule. United States v. Arias-Izquierdo, 449 F.3d
1168, 1183 (11th Cir. 2006).
The right to cross-examine witnesses is protected by the
Confrontation Clause. United States v. Diaz, 26 F.3d 1533, 1539
(11th Cir. 1994). We have held that autopsy reports implicate the
Confrontation Clause. United States v. Ignasiak, 667 F.3d 1217, 1231
(11th Cir. 2012). A defendant is entitled to confront a report analyst
at trial where (1) the report is considered to be “testimonial,” (2)
the analyst who prepared or certified such a report is a witness
against the defendant, and, (3) absent a showing that the analyst is
unavailable and that the defendant had a prior cross examination
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8 Opinion of the Court 23-11616
opportunity. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311
(2009).
On appeal, Harvard argues that the district court abused its
discretion by allowing in evidence of the victim’s identification, in-
cluding her license and toxicology and autopsy reports. We disa-
gree. The relevant crime scene photos that showed the victim’s
name and driver’s license were not hearsay because they were of-
fered to demonstrate what the testifying officer encountered when
he arrived at the scene, not to prove the truth of the matter asserted
within. The officer’s statement that he identified the decedent in
part from her driver’s license was also not hearsay because he tes-
tified to explain his investigatory process and his efforts to identify
the decedent, he was available for cross-examination, and the state-
ment was not unduly prejudicial. Ransfer, 749 F.3d at 925; Diaz, 26
F.3d at 1539.
Although the autopsy and toxicology reports were hearsay,
the district court admitted the reports pursuant to testimony from
the medical examiner and the forensic toxicologist that the respec-
tive reports were (1) made at or near the time of the recorded ac-
tivity; (2) kept in the course of a regularly conducted business ac-
tivity; and (3) made in regular practice. While the court did not
specifically rule that the records were admitted as business records,
there is sufficient testimony on the record to support such a deter-
mination, and thus the court did not err.
III
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23-11616 Opinion of the Court 9
We review the admission of evidence under Rule 404(b) for
abuse of discretion. United States v. Culver, 598 F.3d 740, 747 (11th
Cir. 2010). “If a reviewing court finds that a district court has
abused its discretion in admitting evidence in violation of Rule
404(b), then its decision to uphold the conviction is properly re-
viewed under a harmless error standard.” United States v. Hubert,
138 F.3d 912, 914 (11th Cir. 1998). Under that standard, “[r]eversal
is warranted only if [the error] resulted in actual prejudice because
it had substantial and injurious effect or influence in determining
the jury’s verdict.” United States v. Phaknikone, 605 F.3d 1099, 1109
(11th Cir. 2010) (quotation marks omitted, second alteration in
original). “Overwhelming evidence of guilt is one factor that may
be considered in finding harmless error.” Id. (quotation marks
omitted).
Rule 404(b) prohibits the introduction of evidence of “a
crime, wrong, or [other] act” to “prove a person’s character in or-
der to show that on a particular occasion the person acted in ac-
cordance with the character.” Fed. R. Evid. 404(b). It does, how-
ever, allow such evidence for other purposes, “such as proving mo-
tive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. Rule 404(b) “is a rule
of inclusion, and . . . accordingly 404(b) evidence, like other rele-
vant evidence, should not be lightly excluded when it is central to
the prosecution’s case.” United States v. Kapordelis, 569 F.3d 1291,
1313 (11th Cir. 2009) (quotation marks omitted).
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10 Opinion of the Court 23-11616
We employ a three-part test to determine if evidence is ad-
missible under Rule 404(b): (1) the evidence must be relevant to an
issue other than the defendant’s character; (2) there must be suffi-
cient proof that a jury could find by a preponderance of the evi-
dence that the defendant committed the act; and (3) the probative
value of the evidence must not be substantially outweighed by un-
due prejudice, as established in Rule 403. United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007); see also Fed. R. Evid. 403 (“The
[district] court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the fol-
lowing: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative ev-
idence.”).
The first prong of the Rule 404(b) test can be satisfied “where
the state of mind required for the charged and extrinsic offenses is
the same.” Edouard, 485 F.3d at 1345. By pleading not guilty, a
defendant places his intent at issue. United States v. Jones 913 F.2d
1552, 1566 (11th Cir. 1990). We have held that evidence of prior
drug dealings is highly probative of intent to distribute a controlled
substance. United States v. Cardenas, 895 F.2d 1338, 1344 (11th Cir.
1990). We have also held that extrinsic drug offenses do not tend
to incite a jury to an irrational decision. United States v. Delgado, 56
F.3d 1357, 1366 (11th Cir. 1995).
The third prong of the Rule 404(b) test consists of balancing,
under Rule 403, the probative value of the evidence against its prej-
udicial effect and requires the court to conduct the inquiry based
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23-11616 Opinion of the Court 11
“upon the circumstances of the extrinsic offense.” Edouard, 485
F.3d at 1345 (quotation marks omitted). Rule 403 is an extraordi-
nary remedy that courts should employ “only sparingly since it per-
mits the trial court to exclude concededly probative evidence.”
Smith, 459 F.3d at 1295 (quotation marks omitted). Accordingly,
we view the disputed evidence “in a light most favorable to its ad-
mission, maximizing its probative value and minimizing its undue
prejudicial impact.” Id. (quotation marks omitted). The risk of un-
due prejudice can be reduced by an appropriate limiting instruc-
tion. United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005);
see also United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir.
1993).
Here, the district court did not abuse its discretion in admit-
ting the certified copies of Harvard’s prior convictions for drug dis-
tribution crimes and the challenged Facebook records in which he
discusses a heroin sale because they were relevant as to his intent.
See Edouard, 485 F.3d at 1345. The probative value of the evidence
was also not “substantially outweighed” by its prejudicial effect be-
cause the challenged evidence was evidence of prior drug crimes,
and therefore highly probative of Harvard’s intent to distribute a
controlled substance. Cardenas, 895 F.2d at 1344. Additionally, any
undue prejudice that resulted from the district court’s allowance
was mitigated by the limiting instructions that it gave to the jury,
which instructed the jurors that they could not consider any un-
charged conduct as evidence of whether Harvard had engaged in
the charged conduct but rather the evidence was offered only to
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12 Opinion of the Court 23-11616
show his state of mind, intent, motive, or opportunity to commit
the crime. See Ramirez, 426 F.3d at 1354.
AFFIRMED.
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