“A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different.”
How later courts described this case
- “A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different.”
- finding that the testimony of a police detective that participated in the creation of an instant message transcript was sufficient to authenticate the transcript at trial
Written by the judges who cited it.
The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11783
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cr-00085-MMH-PDB-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TRUMAINE MULLER,
Custody,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 26, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
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Trumaine “Lucky” Muller appeals his convictions for distributing a
controlled substance resulting in death, in violation of 21 U.S.C. § 841; distributing
a controlled substance, in violation of 21 U.S.C. § 841; possession with intent to
distribute a controlled substance, in violation of 21 U.S.C. § 841; and being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924. Muller
raises the following arguments on appeal: (1) the district court abused its discretion
by allowing evidence of an uncharged drug transaction without prior notice from
the government, in violation of Federal Rule of Evidence 404(b); (2) the court
abused its discretion by allowing the government to introduce “historical cell site
mapping” to corroborate the testimony of the government’s key witnesses; (3) the
government’s arguments during rebuttal improperly shifted the burden of proof
and deprived him of a fair trial; (4) his conviction or sentence for Count 1 should
be set aside, under plain error review, because evidence established that an
intervening act occurred that absolved him of criminal responsibility for the
victim’s death; and (5) the court plainly erred by not instructing the jury that his
acts were the proximate cause of the victim’s death and that his drug offenses had
to be committed willfully. After careful review, we affirm. We address each issue
in turn.
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I. BACKGROUND
Though we write only for the benefit of the parties, we nonetheless set out
the facts insofar as they are relevant to the decision we reach. Viewing the
evidence in the light most favorable to the jury’s verdict, the following events
transpired. On November 9, 2016, Tyler Hamilton and his girlfriend, Ariell
Brundige, went to work at a Cracker Barrel restaurant. After their shift ended, they
were picked up by Chris Williams, a friend of Hamilton’s. They wanted to
purchase heroin,1 but they were not able to find any heroin available from their
regular dealers. Eventually, at around 10:18 PM, Williams reached out to
Trumaine “Lucky” Miller and asked him for two “points” of heroin.
Williams drove to meet Muller at the Cedar Bend apartment complex, where
Muller lived. Muller sold Williams two packets of drugs, which were wrapped in
aluminum foil, for $40. At the time of the transaction, Williams and Hamilton
observed a yellow Ford Mustang in the parking lot, a car that Williams had
previously seen Muller drive.
1
We note that this was the third time in two days that Hamilton had purchased heroin. The
first previous occasion occurred on the night of November 8, when he bought heroin from a dealer
named Ross, and the second on the morning of November 9, when he purchased heroin from
another dealer named “Chop.” Hamilton testified that he immediately used the heroin purchased
from both Ross and Chop.
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From there, the group went to Hamilton’s house so he could get some
personal belongings, because he was planning on spending the night with
Williams. Brundige and Williams waited in the car while Hamilton went inside his
house—and while inside, he injected himself with half of the drugs that he had
purchased from Muller. He suffered a seizure and paramedics were called to the
house. Williams and Brundige then went to Williams’s house, where Williams
divided up the remaining drugs purchased from Muller. He put most of the
remainder into a bottle cap, and gave Brundige what was left. Williams then
injected his share of the drugs and passed out.
At least several hours later, Hamilton—who had since recovered—called
Williams and asked him to pick him up. Williams did so, leaving Brundige at his
house watching television. When they returned to the house, Brundige was
outside, lying over a bin. They brought her inside and put her on the couch, where
she fell asleep. At about 1:30 AM, Hamilton started looking up information on
drug overdoses, out of concern that he or Brundige would suffer an overdose.
Several hours later, Brundige started throwing up, and Hamilton did not
think that she was breathing. He was not able to find a pulse and called 911. At
the direction of the operator, he performed CPR. When the paramedics arrived,
they gave Brundige Narcan and epinephrine, but she did not recover and was
pronounced dead shortly thereafter.
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Michael Calhoun, a detective with the Clay County, Florida, Sheriff’s
Office, arrived at Williams’s house several hours later. Though both Williams and
Hamilton denied that Brundige’s death was linked to drug use, Williams admitted
that he had purchased drugs in aluminum foil packets from Muller, who was
driving a yellow Mustang, the previous night. He told Calhoun that he had shared
one of the packets with Brundige. When Calhoun returned to the house later that
day, Hamilton also admitted the drug transaction, giving details similar to
Williams’. From there, Calhoun traveled to the Cedar Bend apartment complex.
While he was on his way, he passed a yellow Mustang, with a man matching
Muller’s description sitting in the passenger seat of the car. Calhoun began
following the car and observed a drug transaction take place. After the sale,
Calhoun effected a traffic stop and searched the car, finding aluminum foil, a purse
containing nearly $2,000 in cash, and a cell phone.
When Brundige’s autopsy revealed that she had died of a fentanyl overdose,
the police conducted a controlled purchase from Muller to see if he was selling
fentanyl. Debra Christopher, one of Muller’s customers who had since become a
confidential informant, purchased what were, at least ostensibly, heroin and crack
cocaine from Muller. The drugs were delivered to her in aluminum foil packets,
and one of the packets contained a mixture of heroin and furanylfentanyl. A month
later, the police arrested Muller and searched his apartment, finding crack cocaine,
5
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a mixture of cocaine and furanylfentanyl, a significant amount of cash, a firearm,
and other drug paraphernalia. Muller was subsequently indicted on four counts,
two of which he contested: distributing a controlled substance resulting in death, in
violation of 21 U.S.C. § 841 (Count 1), and being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g) and 924 (Count 4). The case
proceeded to trial and the jury found Muller guilty. He timely appealed his
conviction to us.
II. ANALYSIS
Muller raises five arguments on appeal: that the district court abused its
discretion by admitting (1) evidence of the drug transaction observed by Calhoun
and (2) the cell tower information; (3) that the government’s arguments during
rebuttal improperly shifted the burden to Muller and deprived him of a fair trial;
(4) that his conviction for causing Brundige’s death should be set aside because an
intervening act occurred that absolved him of responsibility; and (5) that the
district court plainly erred in its instructions to the jury. We address each in turn,
and lay out the facts as relevant.
A. Uncharged Drug Transaction
Detective Calhoun testified about the traffic stop that he effected on Muller
on the same day that Brundige died. Muller objected to this testimony, arguing
that the government was attempting to introduce drug use and money that was
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uncharged, which was irrelevant and prejudicial. Specifically, Muller argued that
introducing evidence of a prior drug transaction was, in essence, Rule 404(b)
evidence that the government did not properly notice. The government, in turn,
argued that it needed to prove a drug deal, that the drug deal led to the overdose
death of Brundige, and that, on the day that Brundige was pronounced dead,
Muller was riding around in a yellow Mustang selling drugs with packaging
similar to that which he sold to Williams.
The district court overruled Muller’s objection, concluding that the evidence
in question was not covered by Rule 404(b) because it was “part of the entire story
and [was] inextricably intertwined.” In any event, even if the information were
covered, the probative value of the testimony was not outweighed by the prejudice.
On appeal, Muller once again raises his argument that Calhoun’s testimony ran
afoul of Rule 404(b).
We normally review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). A
district court abuses its discretion when it “applies the wrong law, follows the
wrong procedure, bases its decision on clearly erroneous facts, or commits a clear
error in judgment.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).
We will not reverse an erroneous evidentiary ruling if the error was harmless.
United States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011). An error is
7
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harmless if “sufficient evidence uninfected by any error supports the verdict, and
the evidence did not have a substantial influence on the outcome.” Id. (quotation
omitted). Evidence admitted in violation of Rule 404(b) is considered harmless if
there is other substantial evidence of the defendant’s guilt. See United States v.
Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).
Rule 404(b) states that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character,” unless such evidence
is used for another purpose, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(1)–(2). In a criminal case, the prosecutor, “[o]n request by a
defendant,” must: “(A) provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial; and (B) do so before trial—or
during trial if the court, for good cause, excuses lack of pretrial notice.” Fed. R.
Evid. 404(b)(2)(A)-(B).
Evidence is admissible under Rule 404(b) if: (1) the evidence is “relevant to
an issue other than the defendant’s character;” (2) “as part of the relevance
analysis,” there is “sufficient proof so that a jury could find that the defendant
committed the extrinsic act;” and (3) “the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence must meet the
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other requirements of Rule 403.” United States v. Phaknikone, 605 F.3d 1099,
1107 (11th Cir. 2010); see also Fed. R. Evid. 404(b). We apply this test, whenever
the extrinsic activity reflects adversely on the character of the defendant, regardless
whether that activity might give rise to criminal liability.” Id. at 1107–08
(quotation omitted).
However, we have stated that “evidence of criminal activity other than the
charged offense is not ‘extrinsic’ under Rule 404(b), and thus falls outside the
scope of the Rule, when it is (1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offense.” United States v. Edouard, 485 F.3d 1324, 1344
(11th Cir. 2007) (quotation omitted). We further explained:
Evidence, not part of the crime charged but pertaining to the chain of
events explaining the context, motive, and set-up of the crime, is
properly admitted if linked in time and circumstances with the charged
crime, or forms an integral and natural part of an account of the crime,
or is necessary to complete the story of the crime for the jury. And
evidence is inextricably intertwined with the evidence regarding the
charged offense if it forms an integral and natural part of the witness’s
accounts of the circumstances surrounding the offenses for which the
defendant was indicted.
Id. (quotation, citations, and alterations omitted).
Regardless of whether the evidence of criminal activity other than the
charged offenses falls inside or outside the scope of Rule 404(b), it still must
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satisfy the requirements of Rule 403. Id. Rule 403 states that “the court may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. “Of course, most relevant evidence is
prejudicial to an accused. The purpose of Rule 403 is not to preclude the use of
prejudicial evidence but the unfair use of prejudicial evidence.” United States v.
Tobon-Builes, 706 F.2d 1092, 1102 (11th Cir. 1983).
Here, we conclude that the district court did not abuse its discretion by
allowing Calhoun’s testimony. His testimony was relevant and necessary to
complete the story of the crime and was inextricably intertwined with the evidence
regarding the charged offense, and thus outside the ambit of Rule 404(b).
Detective Calhoun’s testimony completed the story about the charged November 9,
2016, offense, explaining how law enforcement came into contact with Muller in
the hours after Brundige’s death, and why the officers stopped Muller’s vehicle as
soon as feasible after observing the uncharged drug transaction. The search of
Muller’s vehicle which resulted from that traffic stop revealed that Muller had
been selling drugs in the same aluminum foil wrapping as the two packets of drugs
which Muller had sold Williams in the charged offense. The challenged testimony
of Detective Calhoun related events that occurred less than twelve hours after the
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charged offense, at a location very close to the charged offense, and revealed
evidence that was highly probative of Muller’s guilt in the charged offense. We
conclude that the challenged evidence was closely linked in time and circumstance
to the charged offense, formed on integral and natural part of the witnesses’
accounts of the circumstances surrounding the charged offense, and therefore did
not constitute extrinsic evidence subject to Rule 404(b). We also agree with the
district court that its prejudice did not outweigh its probative value. Therefore, we
affirm as to this issue.
B. Cell Tower Data
Detective Calhoun testified that, in the course of his investigation following
Muller’s arrest, he obtained a court order giving him access to historical cell site
information for the three phones that he had recovered—namely, Hamilton’s,
Brundige’s, and Muller’s—including detailed usage records for all three phones.2
He explained that the historical cell site information did not provide him with a
2
We note that in Carpenter v. United States, the Supreme Court held that “the Government
must generally obtain a warrant supported by probable cause before acquiring” cell-site location
information. 138 S. Ct. 2206, 2221 (2018). In the proceedings before the district court, the
government conceded that it had not applied for a warrant, and that Detective Calhoun had instead
sought a court order under state law—which did not require a probable cause showing—to obtain
the records. The district court ultimately concluded that, because the court order was issued prior
to the Supreme Court’s decision in Carpenter, the good-faith exception to the Fourth Amendment
applied. Muller does not challenge in this respect the district court’s decision denying his motion
to suppress. Accordingly, we conclude that any Carpenter issue in the district court’s order is
abandoned because it has not been raised on appeal. United States v. Mesa, 247 F.3d 1165, 1171
n.6 (11th Cir. 2001).
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precise GPS location for the phones at any given time, but only told him which cell
tower the phones used at various points of the night in question. He nonetheless
concluded that he was able to loosely corroborate Williams’s and Hamilton’s
narratives with respect to their locations based on the historical cell site
information.
Later in the trial, Noel DeLeon, an engineer for AT&T, testified. He
explained that, whenever a phone was powered on, or “queued up,” it continually
searched for the best quality of signal that AT&T provided—which could be from
a number of cell towers that were maintained around the area. As the cellphone
looked for the best signal, the cell towers communicated back with the cell phone
and indicated which tower to “ping” off, which is the tower that would provide the
best signal. He explained that AT&T kept historical cell site records, which were
generated when a phone call, text message, or data session was initiated on the
network.
He identified records kept in the ordinary course of AT&T business for
subscriber Donna Hamilton with a phone number ending in 7123 (Hamilton’s
number), which contained detailed records for calls, texts (without the content),
and cell site information. He identified several phone calls between the 7123
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number and an 8646 number 3 at around 10:30 p.m. on November 9, a 911 call
from the 7123 number around 4:00 a.m. on November 10, and the location of the
cell towers used —through its corresponding latitude and longitude. He also
identified several text messages between the 7123 and 8646 numbers between
10:15 p.m. and 10:32 p.m. on November 9, and the location of the tower used. He
identified phone records for a phone with a number ending in 8139 (Brundige’s
number). He identified data usage by that phone between 10:22 p.m. and 10:30
p.m. and which cell towers were utilized. He explained that cell towers were
connected to each other, so, as a phone moved across the network—for example,
as its user drives down a road—the towers will track the phone and pass it off to
the “next-best serving tower.” Officers were able to obtain the historical cell site
data and plot the coordinates of the cell tower on the map. On cross-examination,
DeLeon reiterated that the coordinates are for the cell tower, not the actual location
of the phone utilizing the tower. He could not determine the exact location of the
phone through the historical cell site data.
Then, Dave Bisplinghoff, an investigator for the local state attorney,
testified. Bisplinghoff said that he used Muller’s, Hamilton’s, and Brundige’s cell
phone records to map out the location of the cellphone towers that these three
3
Testimony from Kenneth Lecesne, a records custodian for T-Mobile, identified the 8646
number as belonging to Muller.
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phones were using on November 9 between 10:14 and 10:32 PM. He explained
that the cell tower that Muller’s phone used was less than one mile from his home,
and that between 10:21 and 10:31 PM, Muller’s, Hamilton’s, and Brundige’s
phones were all utilizing this cell tower. Similarly, between 11:07 and 11:17 PM,
Hamilton’s cell phone used the cell tower closest to his home, and between 11:56
PM and 5:16 AM, Hamilton’s cell phone used the cell tower closest to Williams’s
home. Between 10:43 PM and 5:27 AM, Brundige’s cell phone used a cell tower
closest to Williams’s home, as well.
Bisplinghoff reiterated that the cell site information was only for the location
of the cell tower, not the phones, and that cell phones are constantly looking for the
strongest signal, which is usually, though not always, the closest tower. On cross-
examination, Bisplinghoff conceded that he could not tell based on the information
which side of the tower the cell phones were hitting off of, and that a cell phone
may well use a tower further away than a closer one.
Muller objected to Bisplinghoff’s testimony, along with the maps of the cell
towers that the government sought to admit. He argued that the government failed
to lay the proper foundation as to whether Bisplinghoff was qualified to testify
about the cell site information, and that the government needed to present an
expert. The government responded that the proper foundation was laid through
DeLeon, who laid out in his testimony the records and the locations of the towers.
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Muller replied that he acquiesced to the introduction of the cell tower locations, but
that the exhibits—which ostensibly showed that the cell phones were in a limited
area during the night in question—were confusing.
The district court overruled Muller’s objection. It concluded that DeLeon
adequately explained how cell phones connect with the closest tower and that
Muller’s arguments with respect to the location of the cell phones to the towers
went to the weight of the evidence, not to admissibility. However, the court
admonished the government to be careful with its language to ensure that the maps
showed the locations of the towers, not the phones.
Muller raises a similar argument on appeal, namely, that the testimony
regarding the cell tower information lacked a sufficient foundation. As stated
previously, we normally review a district court’s evidentiary rulings for an abuse
of discretion, Henderson, 409 F.3d at 1297, which applies when the district court
“applies the wrong law, follows the wrong procedure, bases its decision on clearly
erroneous facts, or commits a clear error in judgment,” Brown, 415 F.3d at 1266,
and we will not reverse an erroneous evidentiary ruling if the error was harmless,
Langford, 647 F.3d at 1323. Additionally, we review a district court’s ruling on
authentication for abuse of discretion. United States v. Brown, 587 F.3d 1082,
1092 (11th Cir. 2009).
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Under Rule 901(a) of the Federal Rules of Evidence, “to satisfy the
requirement of authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” See also United States v. Lanzon, 639 F.3d 1293, 1301
(11th Cir. 2011) (finding that the testimony of a police detective that participated
in the creation of an instant message transcript was sufficient to authenticate the
transcript at trial). The government’s burden is not an onerous one; “[t]he
proponent need only present enough evidence to make out a prima facie case that
the proffered evidence is what it purports to be.” Id. at 1301. A district court,
moreover, is given discretion to determine authenticity, and we will not overrule its
determination on appeal “absent a showing that there is no competent evidence in
the record to support [the district court’s determination].” Id.
Based on the record before us, we cannot conclude that the district court
abused its discretion in this regard. We conclude that a proper foundation was laid
and sufficient safeguards were employed to prevent confusion. Several different
witnesses explained the nature of the cell tower information—some, like DeLeon,
in great detail—and as a result, we are satisfied that the information was properly
introduced.
We further note that, even if the district court abused its discretion in
allowing such evidence, any error would have been harmless. While the cell tower
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information may have been greatly emphasized by the government, we think that it
was likely of middling importance to the trial’s ultimate outcome. At best, it
merely corroborated Hamilton’s and Williams’s testimony and what they told the
police and suggested that no other drug deals took place on the night in question.
And at worst, it was marginally relevant information that related to a relatively
unimportant aspect of the trial. Accordingly, we affirm in this respect.
C. The Prosecution’s Comments During Rebuttal
Third, Muller argues that the prosecution improperly shifted the burden of
proof to him during its remarks during rebuttal. During rebuttal, the prosecution
was responding to Muller’s argument that another drug dealer could have provided
the deadly drugs. The prosecution noted that, based on the cell tower information,
none of the parties had texted or called another drug dealer between 12:00 and 1:32
AM, when Hamilton began searching on the internet for overdose symptoms. The
prosecutor then posed a rhetorical question: “Is there any evidence that from
midnight to 1:32 that anybody else was over at that house except for Hillary
Hamilton coming to get into it with her brother?” 4 Muller objected to the
prosecution’s argument and the district court instructed the jury to disregard the
prosecutor’s rhetorical question. The prosecution then continued by noting, “There
4
Here, we note that Hamilton’s sister arrived at Williams’s house and got into an argument
with Hamilton over his quick departure from the hospital after recovering from his seizure.
Neighbors called the police, who arrived at the scene and did not enter the house.
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is no evidence . . . that anyone other than [Hamilton’s sister] came over to that
house that night, none, from midnight to 1:32.” On appeal, Muller argues that, by
asking the rhetorical question, the prosecution improperly shifted the burden of
proof to him.
We review issues of prosecutorial misconduct de novo. United States v.
Noriega, 117 F.3d 1206, 1218 (11th Cir.1997). “Prosecutorial misconduct requires
a new trial only if we find the remarks (1) were improper and (2) prejudiced the
defendant’s substantive rights.” United States v. Hernandez, 145 F.3d 1433, 1438
(11th Cir. 1998) (internal quotation omitted). See also United States v. Eckhardt,
466 F.3d 938, 947 (11th Cir. 2006) (“A defendant’s substantial rights are
prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome of the trial would have been different.”). To determine the
prejudicial impact of the prosecutor’s statements, we “must evaluate them in the
context of the trial as a whole and assess their probable impact on the jury.” Id.
In a criminal proceeding, the government has the burden of proving every
element of the charged offense beyond a reasonable doubt. United States v. Simon,
964 F.2d 1082, 1086 (11th Cir. 1992). During closing arguments, “prosecutors
must refrain from making burden-shifting arguments which suggest that the
defendant has an obligation to produce any evidence or to prove innocence.” Id.
However, a prosecutor is allowed to “comment on the failure of the defense, as
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opposed to that of the defendant, to counter or explain the testimony presented or
evidence introduced.” United States v. Johnson, 713, F.2d 633, 651 (11th Cir.
1983). “[P]rejudice from the comments of a prosecutor which may result in a
shifting of the burden of proof can be cured by a court’s instruction regarding the
burden of proof.” Simon, 964 F.2d at 1087.
Here, we conclude that the prosecutor’s comments during his rebuttal
argument did not impermissibly shift the burden of proof to Muller. The
prosecutor’s comments were in response to Muller’s theory that the drugs that
killed the victim could have come from numerous other sources and not him, and
thus, were the type of arguments that commented on the failure of the defense, not
the defendant, and were allowed. Furthermore, even if the government’s argument
did impermissibly shift the burden, they were quickly cured by the court’s
instruction to the jury to disregard the government’s comments, and further cured
by the courts instruction to the jury that the burden of proof rested on the
government’s shoulders alone. Accordingly, we affirm in this respect as well.
D. The Alleged Intervening Act
Muller next argues that his conviction for Count I should be set aside
because the evidence established that an intervening act occurred that absolved him
of criminal responsibility for Brundige’s death. Because Muller distributed the
drugs that the jury found resulted in the death of Brundige, Muller would
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ordinarily be liable under 21 U.S.C. § 841(a)(1). That statute provides that it is
unlawful for any person to knowingly or intentionally distribute a controlled
substance. Fentanyl is a controlled substance. 21 U.S.C. §§ 802(6), 812(b)(6).
And if any person who distributes a controlled substance “after a prior conviction
for a felony drug offense has become final,” where “death … results from the use
of such substance shall be sentenced to life imprisonment.” 21 U.S.C.
§ 841(b)(1)(C).
On appeal, Muller argues that an intervening act breaks the chain of
causation between his sale of the drug and the death of Brundige. 5 Specifically, he
argues that Hamilton’s conduct intervened and extinguished his criminal
responsibility. He argues this is so because Hamilton failed to get help for
Brundige, despite knowing the drugs were toxic, and did not summon help after
Brundige passed out until it was too late.
Muller faces a substantial hurdle because he did not request a jury
instruction with respect to intervening cause. Nor did he assert intervening cause
as a basis for his motions for judgment as a matter of law. Thus, we construe
Muller’s intervening cause argument—raised for the first time on appeal—as an
5
We have never decided whether there is an intervening cause exception to the death results
sentence enhancement of § 841(a)(1)(C). See United States v. Rodriguez, 279 F.3d 947, 951 n. 5
(11th Cir. 2002). In this case, we can assume arguendo, but we expressly do not decide, that the
intervening cause doctrine can operate to extinguish criminal liability under § 841(a)(1)(C).
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argument that the district court should have sua sponte granted a judgment of
acquittal on the ground that Hamilton should have intervened and saved Brundige
from dying as a result of the drugs that Muller sold.
We construe Muller’s new argument on appeal as a challenge to the
sufficiency of the evidence. We note that ordinarily we would review a sufficiency
challenge de novo. However, when a defendant did not move for a judgment of
acquittal on the ground relied upon for the first time on appeal, we no longer
review de novo. See United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir.
1999) (where the defendant asserted for the first time on appeal a ground not
argued in the district court in support of his motion for judgment of acquittal, we
review “the district court’s decision to deny the motion for judgment of acquittal
on that basis only for ‘plain error’”).
In any event, we cannot conclude that there is error, much less plain error.
Without objection, the district court charged the jury:
The Defendant can be found guilty of the crime charged in Count One
only if all the following facts are proved beyond reasonable doubt:
(1) The Defendant distributed a mixture of substance containing a
detectable amount of fentanyl; and
(2) The Defendant did so knowingly and intentionally. . . .
If you determine that the Defendant distributed the controlled substance
as charged in Count One, you must also determine whether
[Brundige’s] death resulted from the use of the controlled substance
distributed by the Defendant. To establish that [Brundige’s] death
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resulted from the use of the mixture and substance containing a
detectable amount of fentanyl distributed by the Defendant, the
Government must prove that [Brundige’s] use of the fentanyl
distributed by the Defendant was the “but for” cause of her death.
“But for” causation is proven when you find beyond a reasonable doubt
that had [Brundige] not taken the fentanyl distributed by the Defendant,
then [Brundige] would not have died.
Thus, the jury found beyond a reasonable doubt that had Brundige not taken the
drugs distributed by Muller, she would not have died. Although Muller’s counsel
did not request a jury charge that Hamilton’s failure to save Brundige was an
intervening cause, he did assert in his closing argument to the jury that Hamilton
had caused her death. The jury rejected Muller’s argument. We cannot conclude
that there is insufficient evidence in the record to support that finding. And we
certainly cannot conclude that there is plain error.
E. Jury Instructions
Finally, Muller argues that the district court plainly erred by failing to
instruct the jury that it must find beyond a reasonable doubt that his actions were
committed willfully and were the proximate cause of Brundige’s death in addition
to the but-for cause. We affirm in this respect, because Muller invited any error
pertaining the court’s instructions.
Jury instructions that are challenged for the first time on appeal are reviewed
for plain error. United States v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009). “A
district judge is vested with broad discretion in formulating a jury charge so long
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as the charge as a whole accurately reflects the law and the facts.” Id. at 1344 n.1.
We will not reverse a conviction on the basis of an improper jury charge unless
“the issues of law were presented inaccurately, the charge included crimes not in
the indictment, or the charge improperly guided the jury in such a substantial way
as to violate due process.” Id. When a party “induces or invites” the district court
into making an error, the doctrine of invited error precludes the party from seeking
review of that error on appeal. United States v. Brannan, 562 F.3d 1300, 1306
(11th Cir. 2009). Merely failing to object to the jury instructions does not trigger
the doctrine of invited error. United States v. Dortch, 696 F.3d 1104, 1112 (11th
Cir. 2012). But, “[w]hen a party responds to a court’s proposed jury instructions
with the words ‘the instruction is acceptable to us,’ such action constitutes invited
error.” United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). Also, the
doctrine of invited error applies when the defendant “not only agreed with the
[instruction], but requested [it].” United States v. Frank, 599 F.3d 1221, 1240
(11th Cir. 2010). 6
6
Although we do not address the merits of the issues underlying the instructions Muller
challenges, we note the following. In proving the “resulting in death” sentencing enhancement in
a prosecution under 21 U.S.C. § 841(a)(1), the Supreme Court has held that “where use of the drug
distributed by the defendant is not an independently sufficient cause of the victim’s death or serious
bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Burrage v. United States,
571 U.S. 204, 218-19 (2014). As noted above, the district court did instruct the jury that it must
find that Muller’s distribution of the drug was the but-for cause of Brundige’s death. Also, we
have concluded, while agreeing with many sister circuits, “that the plain and unambiguous
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The jury instructions that Muller proposed did not require the government to
prove that the drugs that Muller distributed were the proximate cause of the
victim’s death or that the government was required to show willfulness.
Additionally, during the charge conference, the court specifically asked the parties
if there were any objections to its instruction, which also did not have a proximate
cause or willfulness requirements and was relatively identical to Muller’s proposed
instruction, and whether the parties had any alternative instructions the parties
would have liked to propose. Muller did not object to the court’s instructions or
propose an alternative instruction with a proximate cause or willfulness
requirement. Muller also did not object to the court’s instructions after they were
read to the jury.
Accordingly, because the court gave an instruction that was nearly identical
to the one Muller proposed, and because he informed the court that its instruction
was acceptable, Muller invited any error as it pertains to this issue, and we affirm
in this respect.
III. CONCLUSION
For the foregoing reasons, Muller’s conviction is
language of § 841(b)(1)(C) contains no foreseeability or proximate cause requirement.” United
States v. Webb, 655 F.3d 1238, 1254 (11th Cir. 2011).
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AFFIRMED.
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