The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12945
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENTRAIL BROWN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:19-cr-00021-LAG-TQL-4
____________________
Before BRANCH, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Kentrail Brown appeals his convictions for conspiracy to
possess with intent to distribute methamphetamine, possession
with intent to distribute methamphetamine, distribution of
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2 Opinion of the Court 22-12945
methamphetamine, and using a firearm in furtherance of drug traf-
ficking. Specifically, he contends that the district court committed
plain error when it failed to sua sponte exclude certain testimony
given by the government’s dual lay-expert witness. Brown also ar-
gues that the district court committed plain error when it gave the
jury a modified Allen charge after receiving a jury question about
how to notate non-unanimity on the verdict form. Because the dis-
trict court did not plainly err in permitting the full testimony of the
dual lay-expert witness, and because Brown’s counsel waived re-
view of the proposed Allen charge by expressing agreement, we af-
firm.
I.
A grand jury charged Brown with four counts: (1) conspiracy
to possess with intent to distribute methamphetamine, (2) distribu-
tion of methamphetamine, (3) possession with intent to distribute
methamphetamine, and (4) possession of a firearm in furtherance
of a drug trafficking crime. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii),
(b)(1)(B)(viii), 18 U.S.C. §§ 924(c)(1)(A)(i), (2).
During Brown’s criminal trial, the government called Xavier
Jordan—a drug courier—who testified that a trailer in Cairo, Geor-
gia was a methamphetamine distribution hub controlled by a man
named Joseph Jones. The government’s next witness, Nicholas
Harden, testified that he had lived at that trailer for two years with
Brown. During that time, Harden testified, he observed Brown sell
methamphetamine for Jones. Harden further testified that he first
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22-12945 Opinion of the Court 3
became aware that the trailer was a drug hub when his brother,
Tobias Sanders, was kidnapped.
The government also produced several wiretap statements
featuring Brown’s coconspirators. Next, Orrie Bell testified for the
government that he would trade oxycodone pills for methamphet-
amine at the trailer, and that sometimes these trades were with
Brown. Bell stated that he twice saw Brown bring cash from the
methamphetamine he had sold into the trailer. The government
presented several recorded conversations between Jones and Bell
in which they discussed various aspects of the drug operation; in
one, Bell asked Jones where Brown was because he was looking to
sell some pain pills.
The government next called Georgia Bureau of Investiga-
tion Officer Stripling Luke—the case agent who oversaw the inves-
tigation into Brown and his coconspirators. After establishing Of-
ficer Luke’s credentials and experience in drug enforcement, the
government tendered him as an expert witness in “lingo, tools of
the trade, and the use of firearms in furtherance of drug traffick-
ing.” The district court qualified Officer Luke as an expert but in-
structed the jury that his opinion need not be accepted.
Officer Luke began by explaining what “corners” were: the
product of cutting off the corners of a Ziplock bag to package a
small quantity of drugs. He explained that the trailer contained ev-
idence of these bags, digital scales, and measuring cups. He further
testified that based on his training and experience, this evidence in-
dicated that drug distribution was occurring at the trailer. On the
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4 Opinion of the Court 22-12945
second day of trial, the government used Officer Luke to authenti-
cate and describe several recorded telephone calls and still photo-
graphs captured on pole cameras mounted near the trailer.
As part of this testimony, Officer Luke identified several peo-
ple from still images produced from the pole cameras. The prose-
cution asked him questions “based on [his] training and experi-
ence,” pertaining to quantitative drug terms and their correlation
with personal use or distribution. They also asked him to interpret
a visitor’s two close, successive trips to the trailer. Officer Luke
speculated that the visitor could have made a quick drug sale at a
nearby location and then returned to obtain more drugs, or that he
could have come back to complain that he had not received
enough drugs for the price he had paid.
Near the end of Officer Luke’s testimony, he recounted that
on the day one of the coconspirators was arrested, Officer Luke
saw on the pole camera that a large gathering of people was form-
ing at the trailer. He stated that there were at least 20 cars pulled
up and described how the “body movements” of the people sug-
gested that a “heated discussion” was going on. Officer Luke added
that Sondra Jones, Joseph Jones’s mother, was in this gathering. He
explained that he recognized Sondra Jones because she had come
to the FBI early in its investigation of the conspiracy to report her
son’s status as a “big drug dealer.” After identifying several other
still photos of the gathering, Officer Luke spontaneously opined,
“there’s a lot of drama that was happening at this time based on
what we could see with their body movements.” Officer Luke also
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22-12945 Opinion of the Court 5
testified that he had arranged an undercover agent to wear a re-
cording device and execute a controlled buy with Brown. The gov-
ernment produced the video of the buy, along with a still photo
showing Brown weighing methamphetamine with a digital scale.
The jury began deliberating at 11:13 a.m. on the fourth day
of trial. At 1:30 p.m., the jury submitted two questions to the court,
one of which was “Do we need to write not guilty if we all don’t
agree about a count. And if so, do we still all sign.” The district
court conferred with the parties and suggested giving a modified
Allen charge to advise the jury to continue deliberating until they
reached a unanimous verdict. The government responded, “I
agree, your Honor,” and Brown’s counsel responded, “Yes, your
Honor.” The court recharged the jury with the modified Allen in-
struction and asked the parties if they had objections. The govern-
ment said that it had none, and Brown’s counsel stated “No, your
Honor.” The jury returned to deliberate at 1:35 p.m. and 35
minutes later told the court that it had reached a verdict of guilty
on all four counts. In total, the jury deliberated for about two and
a half hours.
Brown appealed.
II.
We review a district court’s decisions regarding the admissi-
bility of evidence and testimony for abuse of discretion. United
States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019). But issues
not preserved below are reviewed for plain error only. Id. To pre-
vail on plain error review, a party must initially establish three
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6 Opinion of the Court 22-12945
conditions: there must be an error that has not been intentionally
relinquished or abandoned, that error must be plain, and the error
must have affected the defendant’s substantial rights such that
without the error, there would have been a reasonable probability
of a different result. Id. at 1264, 1267. If these first three conditions
are met, we also consider whether the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. Id.
Meeting all four prongs is difficult and places a “daunting obstacle”
before the appellant. United States v. DiFalco, 837 F.3d 1207, 1221
(11th Cir. 2016).
III.
Brown argues that the district court erred in two ways: first,
he says the district court erred when it did not sua sponte limit what
he contends was improper and prejudicial testimony of a dual lay-
expert witness; and second, he says the district court erred when it
gave the jury a modified Allen charge after receiving a jury question
about noting non-unanimity on the verdict form. We address each
argument in turn.
We start with Brown’s first argument that the district court
erred when it did not sua sponte limit what he contends was im-
proper and prejudicial testimony of a dual lay-expert witness.
Brown’s counsel did not object during trial to this testimony, so we
review it for plain error. It is error to admit “speculative interpre-
tive testimony” that purports to interpret “conversations as a
whole.” Hawkins, 934 F.3d at 1264. It is also error to admit testi-
mony that interprets plain, non-coded language to the jury. Id. A
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22-12945 Opinion of the Court 7
trial court must be vigilant against this error when a witness testi-
fies as a dual lay-expert witness because the jury might lend unmer-
ited weight to the expert’s lay testimony. Id. at 1266. Hearsay (an
out-of-court statement offered for the truth of the matter asserted)
is also generally inadmissible. Fed. R. Evid. 801(c), 802. If the gov-
ernment’s case hinges on testimony admitted in error, admitting
the testimony is plain error because it affects the defendant’s sub-
stantial rights. Id. at 1267. If the improper testimony is “merely cu-
mulative” to other evidence, admitting it is not plain error. See id.
(discussing United States v. Emmanuel, 565 F.3d 1324, 1336 (11th Cir.
2009)).
Brown argues that two pieces of Officer Luke’s testimony
were improperly admitted: his recounting of Sondra Jones’s out-of-
court declaration that her son was a “big drug dealer,” and his spec-
ulation that there was “drama” at the trailer as exhibited by peo-
ple’s “body movements.” Brown argues that Sondra Jones’s state-
ment was inadmissible hearsay, and that the testimony about
“drama” at the trailer improperly drew a conclusion for the jury.
Brown maintains that this testimony affected his substantial rights
because it came from an expert witness and it associated Brown
with drama, violence, and “big drug dealer[s].”
The government argues that the prosecution clearly deline-
ated Officer Luke’s expert and lay witness testimony, and that his
lay witness testimony was based on firsthand knowledge. The gov-
ernment further maintains that the challenged testimony was
given to explain how Officer Luke knew the individuals at the
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8 Opinion of the Court 22-12945
trailer. The government adds that this testimony was merely cu-
mulative to the substantial evidence establishing Brown’s guilt.
This evidence included the testimony of Xavier Jordan, Nicholas
Harden, and Orrie Bell, as well as the phone calls, pole camera pho-
tos that tied Brown’s arrivals and departures at the trailer to drug
transactions, and controlled buy that resulted in photos of Brown
measuring out methamphetamine on a digital scale.
We agree with the government that the failure to sua sponte
limit Officer Luke’s testimony was not plain error. Officer Luke’s
recounting of Sondra Jones’s out-of-court declaration about her
son being a “big drug dealer” was not hearsay because it was not
offered to prove the truth of the matter asserted. See Fed. R. Evid.
801(c)(2). Rather, this statement established why Officer Luke
could recognize Sondra Jones in the pole camera photos. And ad-
mitting Officer Luke’s observation that there was “drama” at the
trailer was not error because it did not purport to interpret “con-
versations as a whole” or plain, non-coded language. See Hawkins,
934 F.3d at 1264. In addition, neither piece of testimony affected
Brown’s substantial rights because it was “merely cumulative” to
the extensive evidence establishing Brown’s guilt. See id. at 1267;
see also Emmanuel, 565 F.3d at 1336. This evidence included the co-
conspirator testimony that Brown was selling drugs, the wiretap
recordings that referenced Brown selling drugs, and the photo-
graph of Brown measuring methamphetamine onto a digital scale
during the controlled buy. The objected-to portions of Officer
Luke’s testimony were thus unnecessary to establish Brown’s guilt.
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Brown’s second argument is that the district court erred
when it gave the jury a modified Allen charge after receiving a jury
question about noting non-unanimity on the verdict form. We dis-
agree. A party may not challenge as error a ruling invited by that
party. United States v. Brown, 934 F.3d 1278, 1301 (11th Cir. 2019).
When a party agrees with a court’s proposed jury instructions, the
doctrine of invited error applies. United States v. Frank, 599 F.3d
1221, 1240 (11th Cir. 2010); see also United States v. Jernigan, 341 F.3d
1273, 1290 (11th Cir. 2003), abrogated in part on other grounds by Re-
haif v. United States, 588 U.S. 225 (2019) (holding that counsel in-
vited error on admitting certain evidence when they responded to
the court’s asking if “everybody is agreeable to [admitting the con-
tested evidence],” by saying “Yes, Your Honor”).
Brown argues that he did not invite the error because mere
acquiescence with a district court’s decision is not the same as in-
viting that decision. But Brown’s argument misconstrues the law,
as the doctrine of invited error applies when a party expressly
agrees with a court’s suggestion. See Frank, 599 F.3d at 1240; Jerni-
gan, 341 F.3d at 1290. Brown’s counsel unambiguously assented to
the court’s proposed Allen charge by stating, “[y]es, your honor.”
Doc. 73-3 at 252. He further underlined this assent when he voiced
no objection even when the court solicited objections. Therefore,
the Allen charge was invited by Brown and thus not subject to ap-
pellate review.
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10 Opinion of the Court 22-12945
IV.
For these reasons, the district court’s judgment is
AFFIRMED.