United States v. Devante Glenn

RECOMMENDED FOR PUBLICATION

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

File Name: 25a0196p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

UNITED STATES OF AMERICA,

│

Plaintiff-Appellee, │

> No. 23-3926

│

v. │

│

DEVANTE GLENN, │

Defendant-Appellant. │

┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. 1:18-cr-00692-1—Solomon Oliver, Jr., District Judge.

Decided and Filed: July 28, 2025

Before: GILMAN, STRANCH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE,

Cleveland, Ohio, for Appellee.

GILMAN, J., delivered the opinion of the court in which STRANCH, J., concurred.

LARSEN, J. (pp. 12–16), delivered a separate dissenting opinion.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Devante Glenn, who was accused of selling

drugs that led to an overdose death, appeals his conviction on two counts of distributing

carfentanil, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and one count of using a

telecommunications device to facilitate the transaction, in violation of 21 U.S.C. § 843(b).

No. 23-3926 United States v. Glenn Page 2

Glenn contends that there was insufficient evidence to support his conviction and that the district

court erred by allowing a law-enforcement officer, Agent Orlando Almonte, to testify as an

expert about the meaning of common words and phrases contained in text messages sent between

Glenn and the decedent. For the reasons set forth below, we VACATE Glenn’s conviction and

REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

On July 19, 2017, Renee Ducatman died of a carfentanil overdose in her home in Solon,

Ohio. Throughout June and July of 2017, Ducatman had six or seven conversations with

multiple people whom she met through Backpage.com, an escorting-advertising site, seemingly

about sex and illegal drugs.

On July 17, 2017, at 6:27 p.m., Ducatman called a 702 number and spoke for seven

minutes. She then sent a number of texts to that number, saying: “Maake it happen,” “Please

dude,” and “I have a hundred dollars.” The 702 number responded with “U can’t this phone like

that. . . I’m about to give it back to him. . . I’m on it. I’ll call you in a little bit.” At trial, the

government’s expert witness, Ohio Bureau of Criminal Investigations Special Agent Almonte,

testified that Ducatman was seeking drugs in those texts. Ducatman continued texting and

calling the 702 number until 7:21 p.m. Her last text to the 702 number at 7:21 p.m. read: “Ok I

guess, not you said you’d call me in thirty minutes its been an hour I got ready.”

That same day, at 8:26 p.m., Ducatman called Glenn, whose number was saved in her

phone as “Polo.” They were on a series of brief phone calls over the course of an hour. During

that time, Ducatman also called a 446 number three times. At 10:21 p.m., she called the 702

number again. Cell-tower data from the evening of July 17 through the early morning the next

day indicated that Ducatman was not at home.

On July 18, Glenn called Ducatman around noon but did not get an answer. That night,

Ducatman sent texts to various numbers, including a 785 number from a contact on Tinder.

Glenn called Ducatman again at 10:45 p.m. but received no answer. Ducatman texted Glenn

No. 23-3926 United States v. Glenn Page 3

about 10 minutes later, saying that she would call him back. They exchanged texts and phone

calls, and cell-tower records showed that Glenn was traveling from the Cleveland area to Solon.

From 11:40 p.m. to 12:44 a.m., they sent the following texts:

Ducatman Ill make it worth it

Ducatman I got you I know the game

Glenn Ok

Ducatman I’m excited

Glenn Why u say dat

Ducatman BC I’m,excited you’re coming

Ducatman Ill,make it worth it

Ducatman You close

Glenn U better naw on da eway. I’m cumin baby

Ducatman Dude I got you I know the game

Glenn Ok ok

Glenn It says ur 30 mins away

Ducatman Okay I;m waiting

Ducatman Tell me when you’re close

Ducatman Or call me

Ducatman I’m ready

Glenn Ima call u

Ducatman Yay

Ducatman Close I got dressed for you

Glenn Ok an 15

Ducatman Ok

Ducatman Ill meet you at Verizon

Ducatman On the corner

Glenn Yup

Glenn Im bout to get off

Ducatman Ok ill go verizon

Glenn Ok

No. 23-3926 United States v. Glenn Page 4

At 12:46 a.m. on July 19, Glenn was on the phone with Ducatman for 3 minutes and 54

seconds. Cell-tower data showed that both Glenn and Ducatman were near the Verizon store in

Solon next to Ducatman’s home. Until 1:08 a.m. there was no activity from either Glenn’s or

Ducatman’s phone. Cell-tower data showed that Glenn left the area near Ducatman’s home

between 1:08 a.m. and 1:20 a.m.

Between 1:15 a.m. and 1:28 a.m., Ducatman called Glenn six times. At 1:33 a.m., she

texted Glenn: “I can’t find it please come get me ill,literally do anything I’m dope sick bad.”

She called Glenn again at 1:35 a.m. and 1:43 a.m. Cell-tower data showed that Glenn turned

back towards Ducatman’s home around this time. At 1:53 a.m., Ducatman sent Glenn photos of

an Hermès jewelry box and an iPad. They exchanged four more calls between 1:54 a.m. and

2:10 a.m., and cell-tower data showed that they were near her home from 2:00 a.m. to at least

2:11 a.m. before Glenn began driving back towards Cleveland. Ducatman’s security system

showed that she returned home at 2:15 a.m.

Ducatman called a friend for approximately five minutes at 2:18 a.m. An hour later,

Glenn texted Ducatman, “U good,” and then called her three times in a row. He continued to call

her in the morning and early afternoon. Other friends, including “Randy” and “Cass,” texted and

called Ducatman during this same time period.

Shortly after 2:00 p.m. on July 19, Ducatman’s mother found Ducatman unresponsive on

the bathroom floor. The estimated time of death was approximately 2:30 a.m. on July 19. An

autopsy confirmed that Ducatman died from intoxication caused by a combination of carfentanil,

sertraline, and clonazepam. The government’s forensic toxicologist testified that a urine test was

positive for carfentanil, and that using carfentanil one to three days prior would yield a positive

urine test, but that when a person dies from a carfentanil overdose, there would not be sufficient

time for the drug to metabolize into urine. He also testified that carfentanil was the “but-for

cause of [Ducatman’s] death.”

In May 2018, Detective Kristi Harvey interviewed Glenn. Detective Harvey did not tell

Glenn why he was being questioned, and Glenn denied knowing Ducatman or being called

“Polo.” In that interview, he stated that he had not been to Solon the previous summer and that

No. 23-3926 United States v. Glenn Page 5

he had not used the number linked to Polo’s contact for a long time. But before trial, he

stipulated that “Polo” was his nickname and that he had used the number linked to Polo’s contact

in July 2017. The officers interviewing him did not ask about drugs or mention that Ducatman

had died. And Glenn asked whether Ducatman was claiming that he had raped her. The officers

also showed him a picture of the Hermès box and iPad that Ducatman had texted to him, to

which he responded by asking if he was being accused of robbing her.

B. Procedural history

A grand jury indicted Glen on three counts: Two were for distributing carfentanil on July

19, 2017, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), with an enhancement on the second

count for causing death. The third count was for the use of a communication facility to facilitate

a felony drug offense, in violation of 21 U.S.C. § 843(b).

Trial began in April 2023. At trial, the government called Agent Almonte as an expert

witness to present and interpret the text messages between Glenn and Ducatman. As to the

conversation that occurred between 11:40 p.m. on July 18 and 12:44 a.m. on July 19, he asserted:

“They are meeting for—in my opinion, they are meeting to conduct some type of exchange or

some type of drug exchange.” He concluded that Ducatman’s text at 1:33 a.m. on July 19,

referring to being “dope sick,” meant “[s]omething was given to her, and she needs something

else to help her with the fact that she is dope sick,” and explained that “dope sick” referred to the

withdrawal symptoms that begin to set in six to twelve hours after a dose of an addictive

substance.

Agent Almonte also interpreted the series of text messages involving photos of the

Hermès box and the iPad as follows: “[S]he is in a state where she is trying to barter with Polo

by providing items of, material items such as the Hermès box, which I am assuming contains

jewelry of some sort and an electronic tablet to barter for maybe another supply or a supply of

drugs.” At approximately 2:10 a.m., he believed that Glenn and Ducatman met for a short time

where Glenn exchanged something for Ducatman’s Hermès box and iPad. The government

asked Agent Almonte if he had “any interpretation or opinion as to what the item was based on

No. 23-3926 United States v. Glenn Page 6

the series of text messages.” Over Glenn’s objections, Agent Almonte testified that, in his

opinion, Glenn gave Ducatman drugs.

At the end of Agent Almonte’s direct testimony, the government again asked him what

he believed had happened between Glenn and Ducatman. Glenn again objected, but the court

overruled the objection. Agent Almonte then testified:

I believe Renee was able to entice Mr. Polo to come to her the first time, whether

it was an exchange for sex or any type of sex act for drugs. That occurred, and

then once the meeting, I guess, was completed, she then, based on that one text,

could not find what drugs were provided to her.

And at that point, she then had to entice him out again to conduct another sale or

exchange for drugs to which she used the jewelry and the tablet itself as a form of

payment this time.

Agent Almonte did not elaborate on any methodology or special expertise on which his opinion

was based.

At the close of the government’s case in chief, Glenn moved for a judgment of acquittal

pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court reserved a

decision on the motion. After the close of all the evidence, Glenn renewed his motion, and the

court again reserved a ruling.

The jury convicted Glenn of all charges. Both parties filed post-trial briefs on the motion

for a judgment of acquittal, which the district court denied. In November 2023, the court

sentenced Glenn to 240 months of imprisonment on Count 2 and 48 months of imprisonment on

Counts 1 and 3, to be served concurrently. This timely appeal followed.

II. ANALYSIS

A. Standard of review

A district court’s evidentiary decisions are generally reviewed under the abuse-of-

discretion standard. United States v. Matthews, 31 F.4th 436, 452 (6th Cir. 2022). The

government argues, however, that this issue should be reviewed under the plain-error standard

because Glenn did not properly object at trial. The government notes that Glenn objected only

twice: first, when the government asked Agent Almonte to opine on what Glenn had given

No. 23-3926 United States v. Glenn Page 7

Ducatman in exchange for her Hermès box and iPad, and second when the government asked

Agent Almonte summarize the interactions between Glenn and Ducatman over the course of the

evening. Each time, Glenn’s counsel simply stated “Objection, your honor” rather than

providing an extensive explanation of the grounds for the objection. The government notes the

evidentiary rule that an objection is not preserved for appellate review unless the objecting party

“states the specific ground, unless it was apparent from the context.” Fed. R. Evid. 103(a)(1)(B).

But Glenn’s objections were clear from the context of the surrounding testimony because

he objected to questions asking Agent Almonte to give his interpretation or opinion about what

happened between Glenn and Ducatman based on Agent Almonte’s review of the text messages,

call logs, and cell-tower data. And the district court clearly understood the nature of the

objections without further explanation, as evidenced by the court’s response that “of course, as a

person with background in this, [Agent Almonte] is allowed to testify, and he is allowed to talk

about in his experience what normally, what drug dealers normally do.” We will therefore

review this issue under the abuse-of-discretion standard with regard to the two portions of the

text messages that Glenn objected to Agent Almonte interpreting. See Torres v. County of

Oakland, 758 F.2d 147, 149 n.1 (6th Cir. 1985) (holding that an objection to improper opinion

testimony under the Federal Rules of Evidence was apparent from the context because the

district court overruled the objection and allowed the witness to “state her opinion on that”).

B. The court erred by allowing Agent Almonte to testify about the meaning of

the text messages

Under Rule 702 of the Federal Rules of Evidence,

[a] witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if the proponent

demonstrates to the court that it is more likely than not that: (a) the expert's

scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (b) the testimony is based

on sufficient facts or data; (c) the testimony is the product of reliable principles

and methods; and (d) the expert’s opinion reflects a reliable application of the

principles and methods to the facts of the case.

No. 23-3926 United States v. Glenn Page 8

The great bulk of the text messages between Glenn and Ducatman were not a proper subject for

expert testimony, and Agent Almonte was not qualified to testify as an expert regarding those

messages.

True enough, courts often permit officers to testify as expert witnesses under Rule 702 of

the Federal Rules of Evidence to interpret conversations concerning drug trafficking that use

“slang, street language, and the jargon of the illegal drug trade.” United States v. Young, 847

F.3d 328, 350 (6th Cir. 2017); see also United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir.

2015) (“Courts often qualify law enforcement officers as expert witnesses under Rule 702 to

interpret intercepted conversations that use. . . the jargon of the illegal drug trade.”) (internal

quotation marks omitted)). Law-enforcement officers may give expert opinions about coded

language or “common practices of the drug trade,” provided that “the testimony is relevant and

reliable.” United States v. Maya, 966 F.3d 493, 505 (6th Cir. 2020).

Agent Almonte testified about his training and experience investigating drug trafficking,

including reading text messages between drug traffickers and customers and listening to their

calls. There were certainly aspects of his testimony, such as his interpretation of what “dope

sickness” means, or his statement that drug users “have also bartered things as material items

and/or sex” for drugs, that drew from his expertise.

But, apart from those narrow instances, the text messages between Glenn and Ducatman

were nearly devoid of any such specialized language, and Agent Almonte did not lay a

foundation for how his expertise would be helpful in interpreting common words and phrases in

texts. He did not discuss any qualifications for interpreting common words and phrases that

would assist the jury in distinguishing between people exchanging drugs and people discussing

something other than drugs, such as sex or money. Accordingly, the jury was just as competent

as Agent Almonte to interpret the common words and phrases used in these text messages. See

United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013) (“A witness, lay or expert, may not

form conclusions for a jury that they are competent to reach on their own.”). Agent Almonte’s

testimony involved interpreting ordinary English language to effectively tell the jury the

government’s theory of the case. In similar cases, we have vacated convictions where a law-

No. 23-3926 United States v. Glenn Page 9

enforcement officer “effectively spoon-fed his interpretations of the [text messages] and the

government’s theory of the case to the jury, interpreting even ordinary English language.” Id.

Evidentiary errors mandate reversal unless they are harmless. An error is harmless if the

court has a “fair assurance” that the verdict was not “substantially swayed” by the error. See

United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002). The error here was not harmless.

Ambiguous text messages between Glenn and Ducatman made up virtually all of the evidence

that implicated Glenn in Ducatman’s drug overdose. There was, for example, no eyewitness

identification or search-warrant evidence that connected Glenn to the drug transaction in

question. Agent Almonte instead testified about the meaning of the text messages with an “aura

of expertise and authority.” See Freeman, 730 F.3d at 599 (“An agent presented to a jury with

an aura of expertise and authority increases the risk that the jury will be swayed improperly by

the agent's testimony, rather than rely on its own interpretation of the evidence.”). The jury,

therefore, might well have been “substantially swayed” by his testimony. See Haywood, 280

F.3d at 724.

But the government argues that there was an abundance of other testimony, including the

strength of the text messages, phone-location information, and uncontested autopsy and forensic

evidence. We have already noted, however, that these text messages were ambiguous, and

although the other evidence demonstrated that Glenn was in the same vicinity as Ducatman on

the night before her death and that Ducatman died from a carfentanil overdose, it did not

conclusively establish that Glenn gave Ducatman the carfentanil that she eventually overdosed

on.

Similarly, the dissent opines that the contested testimony is merely cumulative of Agent

Almonte’s other testimony. Dissent at 14–15. But most of the statements that the dissent points

to are more general statements regarding drug users, including several explaining Ducatman’s

dope sickness. Only three of the statements that the dissent cites are arguably cumulative. The

first is Agent Almonte’s opinion that the meeting appeared “to conduct some type of exchange or

some type of drug exchange.” Second is the reference to the jewelry-box and iPad photos as

instances where Glenn and Ducatman are discussing “maybe another supply or a supply of

drugs.” And the third is one that an “exchange for the[] items . . . occurred.” The third

No. 23-3926 United States v. Glenn Page 10

statement, however, comes from Agent Almonte’s testimony that “[t]he individual by the name

of Polo met with this [Ducatman] for a short period of time, short term and whatever they did,

whether it was an exchange for these items that occurred and completed.”

All three of these statements are far more speculative and are not stated with the same

“aura of expertise and authority” as those objected to by Glenn. See Freeman, 730 F.3d at 599.

In sum, the contested statements were not merely cumulative.

The government further argues that there was a lack of evidence pointing to any other

drug source, but there were multiple texts and phone calls in the record between Ducatman and

other numbers that seemingly reference drug use. In any event, the government is the party with

the burden to prove that Glenn provided the drugs, not Glenn’s burden to prove otherwise. And

the verdict appears to have been much closer than the government and the dissent suggest, as

demonstrated by the almost full day of jury deliberations and a note from the jury to the court at

one point saying that they “are deadlocked.” Because so much of the case revolves around

Agent Almonte’s testimony and the text messages in question, we do not have a “fair assurance”

that the verdict was unaffected by Agent Almonte’s improper testimony. Id.

C. Sufficiency of the evidence

Agent Almonte’s improper expert testimony requires a new trial, but the Double

Jeopardy Clause prohibits the government from retrying Glenn if it did not present sufficient

evidence to get a conviction at the first trial. See United States v. Miller, 767 F.3d 585, 601 (6th

Cir. 2014). “The question is 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.’” United States v. Houston, 792 F.3d 663, 669 (6th Cir. 2015)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We must therefore consider whether

the evidence against Glenn, including the erroneous evidence, was sufficient. See Lockhart v.

Nelson, 488 U.S. 33, 40 (1988).

Viewing the evidence in the light most favorable to the prosecution, including Agent

Almonte’s improper testimony, we conclude that the government presented sufficient evidence

to support each of the charges against Glenn. The government presented evidence that Glenn

No. 23-3926 United States v. Glenn Page 11

and Ducatman met the night of her death. Through texts and cell-phone data, it showed that the

two met for roughly 20 minutes, and that shortly after he left, Ducatman texted him: “I can’t

find it please come get me ill,literally do anything I’m dope sick bad.” She then texted a picture

of the Hermès box and iPad, and a reasonable jury could make the inference that Ducatman was

attempting to lure Glenn back to her home with those items. The government also presented

evidence that Glenn then returned to the area around Ducatman’s home, and that she died 20

minutes later. Finally, the government presented Agent Almonte’s testimony interpreting the

texts as a deal to exchange drugs.

A rational trier of fact could thus find beyond a reasonable doubt that Glenn knowingly

or intentionally distributed a controlled substance that caused Ducatman’s death, see 21 U.S.C.

§ 841(a)(1), (b)(1)(C), and that he knowingly or intentionally used a communication facility to

facilitate the distribution, see 21 U.S.C. § 843(b). In sum, the evidence that includes Agent

Almonte’s testimony is sufficient to convict Glenn, but is not so overwhelming as to make the

admission of the improper testimony harmless. We therefore find no Double Jeopardy bar if the

government elects on remand to retry Glenn.

III. CONCLUSION

For all the reasons set forth above, we VACATE Glenn’s conviction and REMAND for

further proceedings consistent with this opinion.

No. 23-3926 United States v. Glenn Page 12

_________________

DISSENT

_________________

LARSEN, Circuit Judge, dissenting. The majority opinion concludes that two

inadmissible statements by Agent Almonte, which largely overlapped with his uncontested

testimony, could have swayed the jury’s verdict. I believe the record shows otherwise.

Accordingly, I respectfully dissent.

To be clear, Glenn contests only two statements by Agent Almonte—the two he objected

to below. His appeal objects to no other parts of Almonte’s testimony. The only two contested

statements are: “I would say an exchange did occur between Polo and Renee for these items for

drugs,” and

I believe Renee was able to entice Mr. Polo to come to her the first time, whether

it was an exchange for sex or any type of sex act for drugs. That occurred, and

then once the meeting, I guess, was completed, she then, based on that one text,

could not find what drugs were provided to her.

And at that point, she then had to entice him out again to conduct another sale or

exchange for drugs to which she used the jewelry and the tablet itself as a form of

payment this time.

R. 183, Trial Tr., PageID 2224, 2227. The majority opinion concludes that these two challenged

statements (1) violated Federal Rule of Evidence 702 and (2) substantially swayed the jury’s

verdict. Even if the majority is correct on the first point, I disagree on the second. Because the

government provided compelling evidence of Glenn’s guilt, and Almonte’s challenged

statements were largely cumulative of his unchallenged testimony, I have fair assurance that

these two opinions did not “substantially sway[]” the jury’s verdict. United States v. Kettles, 970

F.3d 637, 643 (6th Cir. 2020) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

The government presented the following substantial evidence of Glenn’s

guilt: Ducatman and Glenn planned to meet the night of July 18. Cell phone data shows that

they were in the same location between roughly 12:46 AM and 1:08 AM on July 19. Following

the apparent meeting, Glenn traveled north toward Cleveland, where he lived. As he was

heading north, Ducatman repeatedly called him. She then texted him saying, “I can’t find it

No. 23-3926 United States v. Glenn Page 13

please come get me ill,literally do anything I’m dope sick bad.” R. 186-12, Gov. Trial Ex.,

PageID 2579. Glenn picked up her next call. When she called once again after that, Glenn

answered and proceeded to turn back toward Solon, where Ducatman lived. Right after the call

ended, Ducatman sent him photos of a jewelry box and an iPad. Glenn arrived back in Solon,

and his and Ducatman’s cell phones were in the same vicinity for a couple of minutes. Glenn

then headed north again, and Ducatman promptly returned home. Approximately twenty

minutes later, Ducatman died of a drug overdose.

Events following Ducatman’s death further conveyed Glenn’s guilt. Glenn texted

Ducatman, “U good,” at 3:14 AM on July 19 (an hour after his final meeting with her) and called

her nine times throughout the day. Id. When Solon Police Detective Kristi Harvey finally

answered Ducatman’s phone, Glenn didn’t ask for Ducatman or inquire about her. Instead, he

hung up and stopped calling. Ducatman’s mother, meanwhile, never found the jewelry box or

iPad captured in the photos. And investigators never discovered leftover drugs in Ducatman’s

home. Lastly, when Detective Harvey interviewed Glenn, he told multiple lies—denying that he

went by the name “Polo,” that he had ever seen Ducatman, and that he had been to Solon that

summer. See United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995) (remarking that the

defendant’s “affirmative attempts to disassociate” himself from contraband “showed

consciousness of guilt”).

The lack of other suspects bolstered the case against Glenn. Though the majority opinion

observes that Ducatman had multiple texts referencing drug use on her phone, those texts did

not occur the night she died—when she was “dope sick bad” and would “literally do anything.”

R. 186-12, Gov. Trial Ex., PageID 2579. Rather, Ducatman’s communications with others

the night of her death were unremarkable. She and a “785” number, for example, talked about

what they were up to, what restaurants they liked, and what they sought from the dating

app Tinder. Meanwhile, Ducatman told “Randy” that she was depressed and didn’t want to go

out. She also spoke with “Cass” on the phone a few times, including right before she died,

and their conversations appeared to be about dates Cass had been on and plans for Cass’s

upcoming visit. When all three individuals attempted to communicate with Ducatman the

next day, their messages were nothing like Glenn’s repeated phone calls. The 785 number

No. 23-3926 United States v. Glenn Page 14

texted: “Hope you’re having a nice day.” R. 187-2, Def. Trial Ex., PageID 2857. Randy

messaged: “Hiii!” Id. And Cass sent texts like: “Where are you?”; “Please pick up I’ll cry”; “I

just want to hug you I’ve been through hell and back please text me.” Id. at 2857–58.

This evidence strongly indicates that Glenn sold Ducatman drugs in exchange for the

jewelry box and iPad and that the drugs killed her. Though the government may have erred in

using Almonte to “spoon-fe[e]d” its case theory to the jury, these incriminating facts readily lend

themselves to the same conclusion. United States v. Freeman, 730 F.3d 590, 597 (6th Cir.

2013).

Other portions of Almonte’s testimony provide further assurance that any error in

allowing the two challenged statements was harmless. As noted above, Glenn doesn’t object to

the bulk of Almonte’s testimony, most of which was incriminating and largely overlapped with

his two contested opinions. For example, Glenn does not object to Almonte’s testimony in

which he:

• Shared that “dope sickness” occurs when a narcotics addict lacks access to

drugs and feels physically ill, depressed, and as if “they just can’t live without

the drug itself”;

• Stated that drug users sometimes barter “material items and/or sex” to pay for

drugs;

• Opined on what Ducatman and Glenn’s first meeting appeared to be for—“to

conduct some type of exchange or some type of drug exchange”;

• Interpreted Ducatman’s message saying she was “dope sick” and would

“literally do anything” to mean that “[s]omething was given to her, and she

needs something else to help her with the fact that she is dope sick”;

• Stated that Ducatman’s earlier messages to friends about feeling sick and

depressed aligned with dope sickness symptoms;

• Interpreted the jewelry box and iPad photos Ducatman sent Glenn to mean

that she was bartering with Glenn in exchange for “maybe another supply or a

supply of drugs”;

• Expressed his belief that, based on the brief encounter between Ducatman and

Glenn at 2:10 AM, it appeared that an “exchange for the[]

items . . . occurred”; and

No. 23-3926 United States v. Glenn Page 15

• Opined that Glenn’s message to Ducatman at 3:14 AM—“U good”—was

Glenn checking in on her because “[n]ow that she has dope, she feels better or

okay, and it is over an hour [since] she used it.”

R. 183, Trial Tr., PageID 2212, 2218, 2220–24. Uncontested, then, is Almonte’s opinion that

Ducatman was suffering from drug withdrawals and his three suggestions that Ducatman and

Glenn had met for a drug deal. In light of this uncontested evidence, along with the evidence

recounted earlier, Almonte’s two challenged opinions did not have any significant effect on the

jury’s verdict. See United States v. Rios, 830 F.3d 403, 416–17 (6th Cir. 2016) (concluding error

was harmless because the testimony was cumulative of other testimony).

The majority opinion disagrees. It starts by explaining that “[t]he ambiguous text

messages” between Ducatman and Glenn “made up virtually all of the evidence” against Glenn.

Maj. Op. at 9. True, the messages made up a large part of the case against Glenn. But they

hardly made up all the evidence against him. Plenty of circumstantial evidence did as well.

Nor are the text messages that ambiguous—at least not the most incriminating one: “I

can’t find it please come get me ill,literally do anything I’m dope sick bad.” R. 187-1, Trial Tr.,

PageID 2676. Clearly, Ducatman had lost something—“it.” Clearly, she was suffering from

drug withdrawals. And clearly, she was desperate for Glenn to return. To be sure, if one reads

the message in a vacuum, “it” and “anything” may seem ambiguous. That ambiguity slips away,

however, if one reads the message in context: after Ducatman sent the text, Glenn returned to

Solon, where he and Ducatman briefly met up; Ducatman apparently gave Glenn valuable items;

Ducatman died of a carfentanil overdose shortly thereafter; Glenn, concerned about whether

Ducatman was “good,” repeatedly tried to contact her the next day; and investigators never

found any leftover drugs in Ducatman’s home.

Rather than placing the messages in context, the majority opinion silos them. This

enables the majority to deem the messages ambiguous and to minimize the import of the

circumstantial evidence. But the jury learned of the messages in conjunction with the other

evidence, and we must consider them in that light too. See United States v. Campbell, 122 F.4th

624, 632–33 (6th Cir. 2024) (“[H]armless error review is based on an assessment of all ‘relevant

and reliable information’ in the ‘entire record’ . . . .” (quoting Greer v. United States, 593 U.S.

No. 23-3926 United States v. Glenn Page 16

503, 511 (2021))). When we do, the meaning of the messages and the significance of the

circumstantial evidence come into focus. See supra at 12–14.

Finally, the majority opinion is concerned that the “aura of expertise and authority”

accompanying Agent Almonte’s testimony unduly influenced the jury. Maj. Op. at 9 (quoting

Freeman, 730 F.3d at 599). Yet any improper influence that Almonte’s two contested opinions

might have had was minor. As outlined above, the texts, cell locations, and timeline alone were

highly incriminating, and the opinions largely overlapped with Almonte’s uncontested testimony.

To reiterate, the jury heard from Almonte, in unchallenged testimony, that Ducatman and

Glenn’s first meeting appeared to be “some type of exchange or some type of drug exchange”;

that Ducatman was bartering with Glenn for “maybe another supply or a supply of drugs”; and

that, around 3 AM on July 19, Ducatman “has dope, she feels better or okay, and it is over an

hour [since] she used it.” R. 183, Trial Tr., PageID 2218, 2222, 2224 (emphasis added).

Moreover, the threat of improper influence is more acute when the agent worked on the case and

testifies as both an expert and a lay witness, because “the jury [may] suspect[] that he has

investigative information they do not.” Freeman, 730 F.3d at 599. Almonte did not work on

Glenn’s case and testified solely as an expert, thereby mitigating any such threat here. Lastly,

the district court instructed the jury that Almonte “testified as an opinion witness” and that it

“d[id] not have to accept his opinion.” R. 184, Trial Tr., PageID 2467. So the jurors were on

notice not to defer to Almonte’s beliefs. See Samia v. United States, 599 U.S. 635, 646 (2023)

(observing that the law “assum[es] that jurors can be relied upon to follow the trial judge’s

instructions”).

***

For the foregoing reasons, the two challenged opinions offered by Agent Almonte did

not have a marked impact on the jury’s verdict. I therefore would affirm Glenn’s convictions.

I respectfully dissent.