NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
Nos. 22-2512 & 23-1316 ____________
UNITED STATES OF AMERICA
v.
JEREMY EDWARD JOHNSON, Appellant in No. 22-2512
SUSAN MELISSA NICKAS, Appellant in No. 23-1316
____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Nos. 3:21-cr-00143-001 and 3:21-cr-00143-002) District Judge: Honorable Malachy E. Mannion ____________
Submitted Under Third Circuit L.A.R. 34.1(a) on May 15, 2025
Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges
(Opinion filed: September 30, 2025) _______________
OPINION* _______________
FREEMAN, Circuit Judge.
A jury convicted Jeremy Johnson and Susan Nickas of drug offenses that resulted
in the death of Joshua Kiernan. We will affirm both judgments of conviction.
I
On December 11, 2020, Joshua Kiernan died of an overdose on a combination of
heroin and fentanyl. At the scene of the overdose, law enforcement recovered a syringe
and two loose empty plastic bags that they suspected had contained drugs. One of the
loose bags bore a “Rite-Aid” stamp, and the other was unstamped. Law enforcement also
found Kiernan’s drug kit, which contained banded bundles of small bags containing
suspected drugs (some bearing the Rite-Aid stamp and others that were unstamped), and
several empty bags (some stamped Rite-Aid and some unstamped).
A forensic scientist tested the substance in one of the full bags bearing the Rite-
Aid stamp and the substance in one of the full unstamped bags. Both contained heroin
and fentanyl. The scientist also tested the residue in one of the stamped empty bags and
one of the unstamped empty bags. Both tested positive for heroin and fentanyl.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Law enforcement obtained evidence connecting both the stamped and unstamped
bags of drugs to Johnson and Nickas.1 Over the year immediately preceding Kiernan’s
death, Johnson and Nickas obtained drugs from New Jersey, and Johnson routinely
distributed the drugs to people in Pennsylvania. Kiernan and Kiernan’s fiancée, Kaleigh
Watson, were two of Johnson’s customers.
Hundreds of Nickas’s and Johnson’s text messages and Facebook messages
documented their drug transactions. As particularly relevant here, messages showed that
Johnson bought $300 worth of drugs from Nickas on December 6, 2020. Johnson
contacted Nickas to obtain more drugs on December 7, 8, and 9, but Nickas had no drugs
available. On December 9, Johnson and Nickas agreed that the two of them would get
more drugs the following day.
On the morning of December 10, 2020, Watson sought drugs for herself and
Kiernan. The couple had been unable to acquire drugs on December 9, and their supply
was running low. Watson sent Johnson a message asking if he had obtained more drugs
from Nickas, and Johnson responded that he and Nickas were planning to go to New
Jersey at 1:00 p.m. that afternoon to buy drugs, Watson and Kiernan needed drugs
sooner, though, so Watson asked Johnson if he had any drugs available “right now,” and
Johnson responded, “I might. Yea for now.” Nickas App. 1103. Watson then asked
Johnson to meet her that morning to supply her some drugs, and she offered to drive
Johnson to Nickas’s home afterward. Watson also suggested that Johnson could acquire
1 All references to “drugs” refer to a mixture of heroin and fentanyl.
3 drugs from someone named Jeff “beforehand.” Nickas App. 1104. That exchange of
messages ended at 9:41 a.m.
Later that morning, Johnson made various phone calls to various other drug
contacts, and cell site location data show that Johnson’s cell phone travelled to locations
outside of Johnson’s residence.
Around 11:00 a.m. that day, Johnson met Watson and sold her two bundles of
drugs in unstamped bags. Watson delivered some of those drugs to Kiernan at his work
site later that day. Watson also gave Johnson additional money that he could use to buy
drugs for her and Kiernan during his planned drug run to New Jersey with Nickas that
afternoon.
On the evening of December 10, Kiernan used drugs in his home bathroom and
passed out from the effects. Watson performed mouth-to-mouth resuscitation on him.
Later that evening, Kiernan went out to meet Johnson to pick up the drugs Watson had
prepaid for. Kiernan brought those drugs home, he and Watson divided them up, and the
couple used some of them that night. Those drugs were in bags bearing a Rite-Aid
stamp.
On the morning of December 11, 2020, Kiernan left for work, where he
overdosed, leading to his death. Kiernan often used more than one bag of drugs at a time
when Watson was not watching.
In February 2021, police arrested and interrogated Johnson. About twenty-five
minutes into the interrogation, Johnson said, “I want a lawyer.” Johnson App., Ex. A at
4 25:08. Although no lawyer was provided to him, discussions continued for a few more
minutes, and Johnson then said he would continue the interrogation without an attorney.
In May 2021, a grand jury returned an indictment charging Johnson and Nickas
with two counts: (1) conspiracy to distribute heroin and fentanyl, resulting in death of a
user, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C); and (2) distributing heroin
and fentanyl, resulting in death of user, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). Before trial, Johnson moved to suppress all statements he made after
requesting an attorney during his interrogation. The District Court denied the motion,
concluding that Johnson voluntarily waived his rights under Miranda v. Arizona, 384
U.S. 436 (1966).
A jury convicted Johnson and Nickas of both counts. The District Court sentenced
Johnson to 300 months’ imprisonment and Nickas to 240 months’ imprisonment. Each
defendant timely appealed.
II2
On appeal, Johnson raises his Miranda claim, and Nickas raises five claims, two
of which Johnson joins and adopts.3 We address each claim in turn.
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 3 Nickas stated her intent to join and adopt certain arguments in Johnson’s brief, but none of those arguments appear in Johnson’s brief.
5 A
Johnson argues that the statements he made to police after he requested an
attorney were obtained in violation of Miranda. The District Court declined to suppress
those statements, finding no Miranda violation.4 We need not decide whether there was a
Miranda violation because, even assuming there was, the violation was harmless.
When statements obtained in violation of Miranda are admitted at trial, we will
reverse the judgment of conviction unless the government proves beyond a reasonable
doubt that the statements were harmless—i.e., that the statements did not contribute to the
conviction. United States v. Brownlee, 454 F.3d 131, 148 (3d Cir. 2006). Here, the
government has met its burden of proving harmlessness.
Because the District Court denied Johnson’s motion to suppress, we view the facts
in the light most favorable to the government. United States v. Kramer, 75 F.4th 339,
342 (3d Cir. 2023). Apart from Johnson’s challenged statements, the government’s
evidence tracked the drugs Kiernan obtained on the day before his death. Electronic
messages and witness testimony detailed how some of those drugs went from Johnson to
Watson to Kiernan on the morning of December 10, 2020, and others went directly from
Johnson to Kiernan that night. In light of the record as a whole, we are convinced that
any additional inculpatory evidence from Johnson’s post-25-minute-mark statements did
not contribute to the jury’s verdict. See United States v. Shabazz, 564 F.3d 280, 286 (3d
4 We review the District Court’s factual findings for clear error, and we give its legal conclusions plenary review. United States v. Jackson, 120 F.4th 1210, 1217 (3d Cir. 2024).
6 Cir. 2009) (deeming any error from the denial of the suppression motion harmless
because due to the other overwhelming evidence of guilt).
B
Nickas argues that there is insufficient evidence to sustain her convictions. Her
argument stems from the two bags of drugs that were found at the scene of the overdose:
the unstamped bag and the bag with the Rite-Aid stamp. Nickas concedes that the
evidence supports that she was the source of the drugs in the bag with the Rite-Aid
stamp, but she contends that no evidence connects her to the drugs in the unstamped bag.
She also contends that the government did not prove the drugs in the bag bearing the
Rite-Aid stamp caused Kiernan’s death.
Nickas emphasizes that, after Johnson bought drugs from her on December 6, he
did not buy additional drugs from her until December 10. She also points to the other
drug contacts Johnson messaged and called before he delivered unstamped bags of drugs
to Watson on the morning of December 10. Based on this evidence, Nickas reasons that
Johnson had no remaining drugs from Nickas’s supply on the morning of December 10,
so Johnson must have sold Watson drugs from another supplier that morning.
Our review of this sufficiency claim is “highly deferential to the jury’s verdict.”
United States v. Jacobs, 21 F.4th 106, 112 (3d Cir. 2021).5 We review the record “in the
light most favorable to the prosecution and ask only whether any ‘reasonable juror could
5 “We exercise plenary review over a district court’s grant or denial of a motion for judgment of acquittal based on the sufficiency of the evidence.” United States v. Zayas, 32 F.4th 211, 216 (3d Cir. 2022).
7 accept the evidence as sufficient to support the conclusion of the defendant’s guilt
beyond a reasonable doubt.’” Id. (quoting United States v. Caraballo-Rodriguez, 726
F.3d 418, 430–31 (3d Cir. 2013) (en banc)). We will “uphold the verdict as long as it
does not ‘fall below the threshold of bare rationality.’” Id. (quoting Caraballo-
Rodriguez, 726 F.3d at 431).
Viewing the evidence in the light most favorable to the prosecution: Johnson
obtained $300 worth of drugs from Nickas on December 6, 2020,6 and he still had some
of those drugs on the morning of December 10, 2020, when he told Watson that he had
drugs available for her to purchase. Nickas App. 1103 (responding “Yea for now” to
Watson’s question about whether he had drugs “right now,” and doing so before he
communicated with other drug contacts that day). That morning, Johnson provided drugs
from that supply to Watson in unstamped bags. Watson gave some of those unstamped
bags of drugs to Kiernan later that day. The next day, Kiernan died of an overdose, and
two empty bags of drugs were found at the scene—one stamped and one unstamped.
Those empty bags are the ones that caused Kiernan’s overdose death. The unstamped
bag came from the supply Johnson obtained from Nickas on December 6, and the
stamped bag came from Nickas on December 10.
Nickas argues that Johnson must have run out of the drugs she sold him on
December 6 before December 10, as he was looking to buy more in the intervening days.
6 Nickas argues that the deal was for $200 of drugs, but the text messages indicate that Johnson was buying drugs for “200 plus the 100 [he] owe[d Nickas].” Nickas App. 457.
8 But Johnson’s desire to buy more drugs does not establish as a factual matter that he had
run out of the drugs he bought from Nickas. A reasonable jury could find that he had not.
And we cannot reverse this jury’s verdict “simply because another inference is possible—
or even equally plausible.” Jacobs, 21 F.4th at 113 (quoting Caraballo-Rodriguez, 726
F.3d at 432). Sufficient evidence supports the jury’s verdict against Nickas.7
C
Nickas and Johnson argue that the District Court was required to instruct the jury
that the “death results” element of the charged offenses requires proximate causation and
a knowing or intentional mens rea. We review this unpreserved argument for plain error,
Jacobs, 21 F.4th at 114, and we discern none.
As Nickas and Johnson acknowledge, their proximate-causation argument is
foreclosed by longstanding precedent. Id. at 113–15 (continuing to follow United States
v. Robinson, 167 F.3d 824 (3d Cir. 1999)). And the lack of a mens rea instruction was
not plain error.
We have previously declined to read a mens rea requirement into the “death
results” element of 21 U.S.C. § 841 offenses. Id. at 114 (explaining that the “death
results” element “puts drug dealers on clear notice that their sentences will be enhanced if
people die from using the drugs they distribute[,] . . . regardless of whether th[e]
defendant could have reasonably foreseen that death would result” (cleaned up)).
7 Nickas also raises an unpreserved argument that she could not have distributed drugs to Johnson or conspired to do so—instead, Johnson engaged with Watson and Kiernan in joint possession of drugs for personal use. We review this claim for plain error, Jacobs, 21 F.4th at 112, though it warrants no discussion, as it is clearly belied by the record.
9 Moreover, contrary to Nickas’s and Johnson’s contention, it is far from plain that Ruan v.
United States, 597 U.S. 450 (2022) disturbs that precedent. In Ruan, the Supreme Court
held that a 21 U.S.C. § 841(a)(1) conviction requires the government to prove that the
defendant knowingly or intentionally acted in an unauthorized manner. 597 U.S. at 457.
The Court reasoned that “a lack of authorization is often what separates wrongfulness
from innocence.” Id. at 458, 461. But the Ruan opinion did not address the “death
results” element, which enhances the sentence for certain § 841(a)(1) convictions but
plays no role in separating wrongful from innocent conduct. See Burrage v. United
States, 571 U.S. 204, 210 & n.3 (2014). Thus, the District Court did not plainly err in
following our current precedent. See Jacobs, 21 F.4th at 115.
D
Nickas and Johnson argue that the prosecution improperly vouched for Watson’s
credibility at trial through the testimony of one of its witnesses: Detective Kimberly
Lippincott. They take issue with Lippincott’s testimony that Watson initially lied to
investigators, denying that she helped obtain the drugs that killed Kiernan, but later told
the investigators the truth in an April 2021 interview. Nickas and Johnson argue that
Watson’s April 2021 statement to investigators was consistent with her trial testimony, so
Lippincott’s testimony bolstered the latter.
10 The District Court overruled Nickas’s objection to the purported vouching. That
ruling was not an abuse of discretion.8 See United States v. Vitillo, 490 F.3d 314, 325 (3d
Cir. 2007).
Improper vouching occurs when the prosecutor (1) provides assurance of a
witness’s credibility (2) “based on either the prosecutor’s personal knowledge, or other
information not contained in the record.” United States v. Weatherly, 525 F.3d 265, 271
(3d Cir. 2008) (cleaned up). “Although vouching most often occurs during summation, it
may occur . . . during . . . witness examination, when the elicited testimony satisfies the
two criteria for vouching.” United States v. Berrios, 676 F.3d 118, 134 (3d Cir. 2012)
(citation omitted), abrogated on other grounds, Lora v. United States, 599 U.S. 453
(2023); see also Vitillo, 490 F.3d at 327–28, as amended (Aug. 10, 2007).
The criteria for vouching are not satisfied here. Nickas and Johnson do not argue
(and nothing in the record supports) that Lippincott testified based on the prosecutor’s
personal knowledge. And although Nickas and Johnson argue that Lippincott’s opinions
of Watson’s veracity when speaking to investigators was based on extra-record
information Lippincott gleaned during the investigation, it is far from clear that the basis
of Lippincott’s opinions was not contained in the record. After all, Lippincott gave
lengthy testimony about the information she obtained during the investigation, beginning
with the very first phone call she received about Kiernan’s death. Moreover, Watson
8 The government contends that Nickas did not object based on vouching. We need not decide whether Nickas preserved this issue because, assuming she did, the District Court’s ruling withstands abuse-of-discretion review.
11 herself had already testified that she lied in initial interviews but later told the truth when the
detectives showed her messages and she “realized [she] couldn’t hide anything
anymore.” Nickas App. 273.
In any event, when we address a claim of improper vouching, “the statements
must be considered in context.” Weatherly, 525 F.3d at 272. Here, many of Lippincott’s
challenged answers were reasonable responses to questions from Nickas’s defense
counsel. For instance, Nickas and Johnson challenge Lippincott’s testimony that “when
someone is lying to me over and over and over again, sometimes when we lay all our
cards out there, that gets them to tell the truth.” Nickas App. 325. But that answer was a
direct response to a question from Nickas’s counsel: “What is your practice with respect
to interviewing witnesses in terms of showing all your cards during an interview?” Id.
Thus, context demonstrates that Lippincott reasonably responded to questions from
defense counsel and did not improperly vouch for Watson.
E
Nickas asserts that she suffered prejudice due to prosecutorial misconduct. In
support, she points to eight different remarks the prosecutor made during summation.
Nickas did not object to any of these remarks at trial, so we review her claim for plain
error. United States v. Fulton, 837 F.3d 281, 306–07 (3d Cir. 2016).
Nickas could not obtain relief on this claim even if it were preserved and even if
we concluded that the prosecutor’s remarks constituted misconduct. That is because the
purported misconduct did not “so infect[] the trial with unfairness as to make the
12 resulting conviction a denial of due process.” United States v. Repak, 852 F.3d 230, 259
(3d Cir. 2017) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
We address the challenged remarks individually before conducting our cumulative
analysis of “the prosecutor’s offensive actions in context and in light of the entire trial.”
Id. (citation omitted).
First, Nickas argues that the prosecutor began her summation by poisoning the
proverbial well, remarking that Johnson and Nickas, like “all criminal defendants,” urge
jurors to be distracted by irrelevant issues rather than focusing on credible evidence of
guilt. Nickas App. 492. Nickas contends that this remark attacked her right to present a
defense. But we have held that “attacks on the opposing advocate’s arguments and
tactics are acceptable, and indeed that attacking and exposing flaws in one’s opponent’s
arguments is a major purpose of closing argument.” United States v. Rivas, 493 F.3d
131, 139 (3d Cir. 2007). In any event, the remark does not warrant reversal because the
District Court instructed the jury that it was to rely on evidence, not counsel’s statements,
in reaching a verdict, and there was ample evidence to convict Nickas. See Repak, 852
F.3d at 258–60.
Second, Nickas asserts that the prosecutor attacked her character when she
suggested, without record support, that Nickas referred to Kiernan and other individuals
who purchased her drugs as “dumb ass junkies” and that Nickas might call one of the trial
witnesses a “scum bag junkie.” Nickas App. 493. The trial evidence did not show that
Nickas used that language to describe Kiernan, but it did show that Nickas regularly
called her customers (including one of the trial witnesses) “junkie[s],” “scum bag
13 junkies,” and “junkie assholes.” Nickas App. 341, 454, 455. Thus, in context, the
prosecutor’s remarks did not infect the trial with unfairness.
Third, Nickas claims the prosecutor misled the jury and misstated the law by
saying that it was a “non-issue” that police tested some but not all of the bags of drugs
found at the scene of Kiernan’s overdose. Nickas App. 496. But Nickas
mischaracterizes the prosecutor’s remark. In response to defense counsel’s suggestion
that the random sampling performed on the bags was insufficient, the prosecutor argued
to the jury that it could infer from the random sampling that all bags of drugs at the scene
contained heroin and fentanyl. That argument neither misled the jury nor misstated the
law.
Fourth, Nickas challenges the prosecutor’s remark that the prosecution did not
have to prove which bag of drugs caused Kiernan’s death. But the prosecutor was simply
repeating her argument that the evidence showed both the unstamped and the stamped
bags came from Johnson and Nickas, so it did not matter which caused Kiernan’s death.
Fifth, Nickas contends that the prosecutor misled the jury when she said the scene
of Kiernan’s death was not disturbed by Kiernan’s coworkers. Nickas contends that a
law enforcement witness testified otherwise. But the law enforcement witness merely
confirmed that Kiernan’s coworkers reported having moved Kiernan’s body so they
could render aid; the witness did not characterize that as disturbing the scene of Kiernan’s
death. Thus, there is no conflict between the prosecutor’s remark and the witness’s
testimony, so the remark was not misconduct. See United States v. Lee, 612 F.3d 170,
194 (3d Cir. 2010) (holding that a “prosecutor is entitled to considerable latitude in
14 summation to argue the evidence and any reasonable inferences that can be drawn from
that evidence” (citation omitted)).
Sixth, Nickas argues that the prosecutor overestimated how many bags of drugs
Johnson purchased from Nickas on December 6, 2020, to make it sound like Johnson
would have more drugs available to supply to Watson on December 10, 2020.
Specifically, Nickas points to the prosecutor’s remark that Johnson gave Nickas enough
money to purchase “five bundles, 250 bags.” Nickas App. 498. As the government
concedes, that statement was incorrect. Indeed, the trial evidence made clear that a
bundle of drugs contains 10 bags, so five bundles would contain 50 bags (not 250). But
the prosecutor did not repeat her incorrect statement, and, where the jury was instructed
that the prosecutor’s arguments are not evidence, the misstatement did not infect the trial
with unfairness. See Repak, 852 F.3d at 259.
Seventh, Nickas asserts that the prosecutor improperly shifted the burden of proof
to the defense when she remarked that no evidence—only speculation—supported that
Johnson purchased drugs from individuals other than Nickas in the days before Kiernan’s
death. But “[t]he prosecutor’s comment attempted to focus the jury’s attention on holes
in the defense’s theory,” which does not support relief on plain error review. United
States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996).
Lastly, Nickas takes issue with a comment about the theory that Johnson had drug
suppliers other than Nickas. The prosecutor stated, “I think it’s a fair guess in light of the
history of Jeremy Johnson and Susan Nickas working together for a year to get and sell
drugs, they didn’t have independent sources . . . . They were a team.” Nickas App. 498.
15 Of course, a jury may not “guess” at whether the government proved a defendant’s guilt
beyond a reasonable doubt. And on rebuttal, co-counsel for the government clarified that
the “fair guess” remark was “a misspeak,” and told the jury that “nobody is asking [it] to
guess at anything.” Nickas App. 510–11. The government then reiterated that the jury
had to find Nickas guilty beyond a reasonable doubt based on the evidence, and the
District Court also provided that clear instruction. In light of the government’s correction
and the clear jury instruction, we are satisfied that the improper remark did not “so taint[]
the trial as to violate [Nickas’s] Fifth Amendment rights.” Repak, 852 F.3d at 259.
Nickas takes issue with the prosecutor’s remarks that either were not misconduct
at all or did not infect her trial with unfairness. Considering these prosecutorial
statements individually and cumulatively, we are assured that they did not infect the trial
with unfairness.
In her final claim, Nickas seeks a new trial due to the cumulative prejudice from
the errors in her trial. We review this unpreserved claim for plain error, United States v.
Greenspan, 923 F.3d 138, 154 (3d Cir. 2019), but the result would be the same under any
standard of review: Because any errors at Nickas’s trial were harmless, there is no
prejudice to cumulate. See Balter, 91 F.3d at 442–43.
* * *
For the foregoing reasons, we will affirm both judgments.