NOT RECOMMENDED FOR PUBLICATION File Name: 24a0022n.06
No. 22-3932
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jan 18, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE NORTHERN ) KINDELL SMITH, DISTRICT OF OHIO ) Defendant-Appellant. ) OPINION )
Before: GRIFFIN, BUSH, and LARSEN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Kindell Smith provided a mixture of controlled substances to an undercover law
enforcement officer on two occasions. A jury ultimately convicted him of various federal drugs
and firearms offenses. Smith now appeals, arguing that: (1) he was denied a fair trial when the
district court improperly admitted evidence that violated Federal Rule of Evidence 404; (2) the
district court erred in giving his stipulated jury instructions; and (3) the evidence was insufficient
to sustain his conviction for possession of a firearm in furtherance of a drug trafficking crime.
Finding no error requiring reversal, we affirm.
I.
In April 2020, law enforcement agencies began investigating Smith for suspected drug
trafficking following a woman’s fatal drug overdose. Text messages on the woman’s phone
showed that she likely purchased the drugs from someone she dubbed “Rico Dude Man,” so No. 22-3932, United States v. Smith
Narcotics Detective Michael Griffis cold-called the phone number to set up a controlled buy. At
the controlled buy, Smith showed up and sold Griffis a little less than half a gram of a mixture of
cocaine and fentanyl. Griffis captured this transaction on audio and video recordings.
Just over one month later, Smith called Griffis and said that he had “something” he wanted
Griffis to try. By then, Griffis had positively identified Smith and knew that multiple law
enforcement agencies were searching for him due to a pending arrest warrant, so Griffis arranged
a “buy bust”: a controlled buy where law enforcement officers arrest the drug trafficker
immediately after the sale. Smith and Griffis planned a meeting, and Griffis separately arranged
for three officers to accompany him in his vehicle and for additional officers to be present in the
area.
After Detective Griffis arrived at the meeting spot, Smith (along with his co-defendants)
arrived in a Jeep. The Jeep pulled up to Griffis’s vehicle and Smith—who was the only passenger
in the backseat—rolled down his window, knocked on Griffis’s window, and gave Griffis a folded
piece of paper containing drugs. Immediately thereafter, another officer in Griffis’s vehicle rolled
down his window and identified himself as law enforcement. The Jeep sped away, but it crashed
into a police vehicle moments later. Right after the crash, ATF Special Agents Donald Kopchak
and Gerrod Briggs observed Smith lean across the Jeep’s backseat, reach underneath the passenger
seat, and grip an object. Law enforcement extracted Smith and the others from the vehicle, arrested
them, and searched them and the Jeep. The search yielded a pistol with a loaded, extended
magazine wedged underneath the passenger seat of the Jeep, where Kopchak and Briggs had
previously observed Smith reaching. Law enforcement also found additional drugs, cash, and
Smith’s cell phone. Testing later confirmed that the substance Smith gave Griffis was a mixture
of heroin and fentanyl.
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A federal grand jury indicted Smith and his co-defendants on numerous drugs and firearms
charges. Only Smith proceeded to trial, where he was found guilty of conspiring to distribute and
possess with intent to distribute controlled substances; distributing a controlled substance;
possessing with intent to distribute controlled substances; possessing a firearm in furtherance of a
drug trafficking crime; and being a felon in possession of a firearm and ammunition. Smith timely
appealed.
II.
First, Smith argues that his trial was permeated with improper references to other crimes,
wrongs, and acts in violation of Federal Rule of Evidence 404. Because he did not object to these
references at trial, we review for plain error. See United States v. Cowart, 90 F.3d 154, 157 (6th
Cir. 1996). To establish plain error, Smith must demonstrate that “(1) an error occurred; (2) the
error was obvious or clear; (3) the error affected his substantial rights; and (4) the error seriously
affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.
Mayberry, 540 F.3d 506, 512 (6th Cir. 2008).
Smith challenges the admission of three specific types of evidence: (1) testimony linking
him to a fatal drug overdose; (2) testimony regarding law enforcement’s investigation into him as
a known drug dealer and gang member; and (3) social media posts appearing to show him as a
gang member. According to Smith, this evidence—even mentioned in passing—violated Rule
404(b). Although Smith’s challenges on appeal more accurately relate to Federal Rule of Evidence
403, not Rule 404(b), we nonetheless address them.1 Rule 404(b) prohibits the use of evidence of
1 Rule 403 provides: “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. Any argument Smith could have raised under Rule 403 is, however, -3- No. 22-3932, United States v. Smith
other crimes, wrongs, or acts to prove that a person acted in accordance with a particular character
trait on a particular occasion. Fed. R. Evid. 404(b)(1); see Cowart, 90 F.3d at 157 (“Under [Rule
404(b)(1)], evidence of criminal character or propensity is excluded because the jury might convict
the defendant for the conduct proving propensity rather than for the offense for which he is on
trial.”).
We begin with the testimony linking Smith to a fatal drug overdose. In response to a
question from the government regarding how he began investigating Smith, Detective Griffis
responded that his department assisted another police department “with a fatal overdose death
[investigation],” which ultimately led them to Smith through discovery of the decedent’s text
messages to Rico Dude Man. The government did not inquire into the details of the overdose or
Smith’s speculated involvement in it. And no other witness mentioned the overdose. However,
Smith now asserts the district court should have sua sponte stricken the mention of this overdose
from the record and sua sponte given a “cautionary” instruction to the jury. Smith argues that the
district court’s failures to do so constitute reversible error. We disagree.
As the government asserts, this testimony was mere background, or res gestae, evidence.
“Typically, [res gestae] evidence is a prelude to the charged offense, is directly probative of the
charged offense, arises from the same events as the charged offense, forms an integral part of a
witness’s testimony, or completes the story of the charged offense.” United States v. Adams,
722 F.3d 788, 810 (6th Cir. 2013) (quoting United States v. Hardy, 228 F.3d 745, 748 (6th Cir.
2000)). Proper res gestae evidence “has a causal, temporal or spatial connection with the charged
offense.” Hardy, 228 F.3d at 748. These limits ensure that we remain “careful not to allow res
forfeited. See, e.g., United States v. Montgomery, 998 F.3d 693, 698 (6th Cir. 2021); United States v. Calvetti, 836 F.3d 654, 664 (6th Cir. 2016). -4- No. 22-3932, United States v. Smith
gestae evidence as a ‘backdoor to circumvent [the] goals’ of Rule 404(b).” United States v. Sadler,
24 F.4th 515, 555 (6th Cir. 2022) (quoting United States v. Gibbs, 797 F.3d 416, 423 (6th Cir.
2015)). Here, Griffis’s testimony regarding the fatal overdose completes the story of the charged
offenses by explaining why law enforcement began investigating Smith and how they obtained his
phone number. Absent this explanation, the story would have begun with Griffis cold-calling
Smith without reason. The district court did not plainly err in allowing this testimony because
proper res gestae evidence does not implicate Rule 404(b). See Hardy, 228 F.3d at 748.
We reach the same conclusion with respect to the testimony and exhibits presented at trial
concerning law enforcement’s prior knowledge of Smith’s drug trafficking and gang-related
activities. Once Griffis began investigating Smith, he discovered that other law enforcement
agencies were independently investigating Smith for his speculated involvement in a gang and that
Smith had an active arrest warrant. Moreover, based on social media posts from Smith and other
alleged gang members, it appeared that Smith was likely involved with firearms and drug
trafficking. Smith’s suspected gang activity was not emphasized at trial. Rather, the government
used the alleged gang members’ social media posts to link Smith to firearms and drug trafficking.
And his connection to unlawful activities helped explain why several law enforcement agencies
were interested in Smith and worked together to conduct the buy bust. This res gestae evidence
completes the narrative of the charged offenses and was properly admitted. See Gibbs, 797 F.3d
at 424 (explaining that “[t]he purpose of background evidence is to put the charges in the
appropriate context” and noting that “defendants are not entitled to a ‘sanitized’ recounting of the
facts”) (citation omitted). At the very least, any error in admitting this evidence was not “obvious
or clear.” Mayberry, 540 F.3d at 512.
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In any event, no prejudice resulted from the admission of any of this challenged evidence.
Smith twice provided drugs to an undercover police officer; Smith’s co-defendants, with whom he
was arrested, enabled the second distribution; and Smith admitted to possessing the firearm in jail
calls. Even if the challenged evidence was improperly admitted in violation of Rule 404(b), Smith
has failed to demonstrate a reasonable probability that it affected the outcome of the trial. United
States v. Olano, 507 U.S. 725, 734 (1993); Molina-Martinez v. United States, 578 U.S. 189, 194
(2016).
III.
Next, Smith argues that the district court committed error requiring reversal by giving his
stipulated jury instructions. We disagree. Before trial, Smith and the government jointly stipulated
that Smith had previous felonies. Additionally, they submitted joint proposed jury instructions that
erroneously detailed the nature of his felony convictions in the felon-in-possession instruction.
The district court gave Smith several opportunities to object to the instructions, yet he never did
so. Eventually, the district court gave the instructions as provided by the parties.
On appeal, Smith argues that, given the separate prior-felony stipulation, the district court
improperly referenced his specific prior felony convictions when reading the felon-in-possession
instruction, contrary to Old Chief v. United States, 519 U.S. 172, 191–92 (1997). This error, Smith
argues, entitles him to vacatur of the felon-in-possession conviction and a new trial on this charge.
The government appropriately concedes that, in light of the parties’ stipulation, the district court
erred in reading the names and nature of Smith’s prior felony convictions. However, the
government asks us not to review this error as invited, given Smith’s approval of the instruction.
Invited error “cover[s] much of the space in the middle” between waiver and forfeiture on
a hypothetical continuum. United States v. Montgomery, 998 F.3d 693, 698 (6th Cir. 2021).
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“A litigant invites error when he contributes in some way to the district court’s error without
intentionally relinquishing his rights.” Id.; see also United States v. Sharpe, 996 F.2d 125, 129
(6th Cir. 1993). In such a scenario, a litigant is more culpable for the error than he is in forfeiture
circumstances, but less culpable for the error than he is in waiver circumstances. Montgomery,
998 F.3d at 698. Notably, the invited-error doctrine applies to appeals like Smith’s—when a
defendant challenges jury instructions to which he stipulated. See United States v. Barrow,
118 F.3d 482, 490–94 (6th Cir. 1997).
Although this doctrine typically precludes appellate review when a defendant fails to object
to jointly provided and stipulated-to jury instructions, such conduct does not necessarily foreclose
our review. See United States v. Howard, 947 F.3d 936, 944–45 (6th Cir. 2020). We may review
an invited error “when the interests of justice demand” so. Id. at 945 (citation omitted). “Whether
the interests of justice demand that we review an invited error is left largely to our discretion.”
Montgomery, 998 F.3d at 699. We have exercised that discretion when, for example, the
government is equally at fault for the error and the defendant is claiming that his constitutional
rights have been violated. Howard, 947 F.3d at 945. In such cases, we review an invited error for
plain error. Id.; see also Sharpe, 996 F.2d at 129. In the context of stipulated-to-jury-instructions
challenges, this plain-error inquiry “requires a finding that, taken as a whole, the jury instructions
were so clearly erroneous as to likely produce a grave miscarriage of justice.” Howard, 947 F.3d
at 945 (citation omitted).
We agree with the government that Smith invited the district court’s error of specifically
naming his prior felony convictions in the jury instructions. The parties jointly submitted the
proposed instructions, made joint revisions, and the district court received the parties’ approval
several times. Smith’s counsel never raised the Old Chief error with the felon-in-possession
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instruction. Nor, of course, did the government, and it concedes that it is equally at fault for
inviting the error. Yet, Smith has not raised this error in a constitutional context, counseling against
review.
But whether we decline review or we review for plain error, the end result is the same:
Smith is not entitled to relief because he cannot demonstrate either that his substantial rights were
affected or that a grave miscarriage of justice resulted from this purported error. See Sharpe,
996 F.2d at 129 (finding no plain error in faulty jury instructions); Barrow, 118 F.3d at 491–94
(same). The evidence at trial showed that Smith—who is aware he is a felon—was the only person
who had access to the firearm recovered in the Jeep, reached toward the area where the firearm
was found shortly after the vehicle collision, and admitted in recorded jail calls that the firearm
was his. Moreover, the district court gave a limiting instruction to ensure that the jury would not
rely on any evidence of other crimes or wrongs for propensity purposes. As such, Smith has not
demonstrated that he was prejudiced by the felon-in-possession instruction and is not entitled to
relief.
IV.
Finally, Smith asserts the evidence presented at trial is insufficient to sustain his conviction
for possession of a firearm in furtherance of a drug trafficking crime. We review a challenge to
the sufficiency of the evidence for a criminal conviction de novo. United States v. Robinson,
813 F.3d 251, 255 (6th Cir. 2016). A defendant raising a sufficiency-of-the-evidence challenge on
appeal faces a “very heavy burden.” Id. (internal quotation marks omitted). The defendant must
show that, even when viewing the evidence in the light most favorable to the prosecution, no
“rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Jackson, 473 F.3d 660, 669 (6th Cir. 2007) (citation omitted). We may
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not “reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury.” United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015) (internal quotation
marks and brackets omitted).
To be convicted of possessing a firearm in furtherance of a drug trafficking crime under
18 U.S.C. § 924(c)(1)(A)(i), the government must prove “not just that a defendant ‘possesse[d] a
firearm’ but also that the defendant did so ‘in furtherance of’ a ‘crime of violence or drug
trafficking crime.’” United States v. Maya, 966 F.3d 493, 499–500 (6th Cir. 2020) (citing 18 U.S.C.
§ 924(c)(1)(A)). Smith challenges only the “in furtherance of” element of this offense. He argues
that he was not seen with the firearm while providing the drugs, nor was the seized firearm “quickly
and easily available for use” during the second distribution.
“[W]hether a defendant possesses a firearm ‘in furtherance of’ a crime depends on the
defendant’s intent in possessing the gun,” so we must ask “[w]hy did [the defendant] possess a
gun?” Id. at 500. If a defendant possesses a gun for an “innocent purpose—such as for hunting
or as a wall-mounted antique”—then he did not possess it to further a drug trafficking enterprise.
Id. (quotation marks omitted). On the other hand, if a defendant possesses a gun “to protect the
drugs, the proceeds of drug sales, or the dealer himself,” then he possesses the firearm in
furtherance of drug trafficking. Id. (internal quotation marks omitted). Although we have
previously consulted the “Mackey factors” to determine the purpose for which a defendant
possessed a firearm, we have more recently moved toward a “holistic analysis” in answering this
question. Id. at 501–02 (citing United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001)). That
is, “whether a jury could rationally find that the defendant possessed the gun to aid the drug crime.”
Id. at 503.
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Viewing the evidence holistically, a jury could rationally find that Smith possessed the
firearm in the Jeep for the purpose of aiding his drug trafficking. Several law enforcement officers
testified that drug traffickers typically possess firearms to protect themselves, money, or drugs.
Protection is especially necessary when drug traffickers flaunt the benefits of their drug trafficking,
such as cash and expensive items, on social media—which Smith did. Smith also frequently posted
photos and videos of his firearms on social media, which could have been a warning to rivals who
considered robbing him of his drug proceeds. Moreover, when Smith and his co-defendants were
arrested after the second drug distribution, law enforcement recovered a firearm that only Smith
could access. And although the firearm was wedged under the vehicle seat at the time it was
recovered, a rational jury could conclude that Smith placed it there when Special Agents Kopchak
and Briggs observed him leaning over and reaching under the seat. See id. at 500 (allowing the
government to rely on circumstantial evidence when proving possession of a firearm in furtherance
of a drug trafficking crime because “[i]n most cases, a defendant will not confess to possessing the
firearm to facilitate a drug crime”). Further, the record contains no innocent explanation or
reasonable inference for Smith’s possession of the firearm. For these reasons, a jury could
rationally infer that Smith had the gun in his possession to protect the thousands of dollars of cash
in the Jeep or to protect himself during his drug distribution.2
V.
We affirm the judgment of the district court.
2 We would reach the same conclusion if we had consulted the Mackey factors, which overlap with much of the holistic analysis. See Mackey, 265 F.3d at 462; Maya, 966 F.3d at 501. -10-