United States v. Jaffal

79 F.4th 582

UNITED STATES of America, Plaintiff-Appellee, v. Baha JAFFAL, Defendant-Appellant.

No. 22-3552

United States Court of Appeals, Sixth Circuit

Argued: June 16, 2023

Decided and Filed: August 14, 2023

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:20-cr-00155-1—Benita Y. Pearson, District Judge.

ARGUED: CiaraN. Barone, Riley K. Segars, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Ciara N. Barone, Riley K. Segars, J. Scott Ballenger, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: GILMAN, BUSH, and READLER, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Baha Jaffal was indicted by a federal grand jury on two counts of possessing controlled substances with the intent to distribute the drugs, in violation of 21 U.S.C. § 841(a)(1). Count 1 involved the distribution of 35.69 grams of a mixture containing heroin and carfentanil that was found in Jaffal's coat pocket on November 11, 2019. Count 2 involved 27 pills containing fentanyl and 4-ANPP (a schedule II controlled substance) that were found in Jaffal's pocket on December 12, 2019. The grand jury also indicted Jaffal for using or carrying a firearm in relation to a drug-trafficking crime (Count 3), in violation of 18 U.S.C. § 924(c), and for being a felon in possession of a firearm (Count 4), in violation of 18 U.S.C. § 922(g)(1). We refer to the counts as they were numbered at trial, not as they were numbered in the indictment (which included an additional count that was later dismissed). A jury convicted Jaffal on all four counts.

On appeal, Jaffal argues that his convictions for Counts 1, 2, and 3 should be overturned because the district court erroneously admitted (1) "other acts" evidence, in violation of Rule 404(b) of the Federal Rules of Evidence (Fed. R. Evid.); (2) hearsay evidence; and (3) expert opinion testimony about Jaffal's mental state. Jaffal also argues that these three convictions should be overturned because he was entitled to a lesser-included-offense instruction for simple possession of the drugs. He does not appeal his conviction on Count 4.

For the reasons set forth below, we AFFIRM all of the district court's evidentiary rulings, REVERSE its failure to give the lesser-included-offense instruction, and REMAND for a new trial on Counts 1, 2, and 3.

I. FACTUAL BACKGROUND

A. Jaffal was arrested following a drug overdose

Count 1 involves events that took place on the evening of November 11, 2019 when Parma Police Officers Bryan Bernow and Nathan Ciarrone responded to a 911 call that a man was overdosing on drugs. When the officers and paramedics arrived on the scene, they discovered Jaffal on the floor, unresponsive and struggling to breathe. The officers administered Narcan to counteract the effects of the opioids, and they were eventually able to revive him. Jaffal's girlfriend, Raya Al-Assadi, was also present and had already administered Narcan to Jaffal before the officers arrived.

While still on the premises, Officer Ciarrone found a single pill, which he suspected to be a narcotic, in a plastic bag between Jaffal's legs. Although the pill appeared to be a 0.03-gram oxycodone tablet, subsequent testing revealed that it was actually a 0.10-gram mixture of fentanyl and 4-ANPP. Officer Ciarrone also found a folded-up five-dollar bill containing a powdery substance in Jaffal's pocket. Subsequent testing revealed that the five-dollar bill contained 0.37 grams of a heroin and carfentanil mixture. In another pocket, the officers found approximately $2,700 in cash.

As he was being prepared for transport to the Parma Hospital for additional medical treatment, Jaffal said that he was cold and asked for his jacket. Al-Assadi grabbed a jacket, which an officer took from her to check for weapons. The officer found a sandwich bag containing suspected narcotics in the jacket pocket. Subsequent testing revealed that the bag contained 35.69 grams of a mixture containing heroin and carfentanil.

After Jaffal was transported to the hospital, the officers asked Al-Assadi for consent to search her home with a drug dog. Al-Assadi gave her consent. The officers discovered a number of THC vape pens (which were not seized) and a pill bottle with a white powdery substance in it. No other significant evidence was found, including no evidence of any scales, packaging materials, cutting agents, mixing utensils, or any other tools that might commonly be associated with narcotics distribution.

B. Jaffal's phone conversations were recorded while he was in jail

After Jaffal was discharged from the hospital, he was arrested and taken to jail. Several phone calls between Jaffal and Al-Assadi were recorded while Jaffal was in police custody. Portions of these recorded calls were authenticated by and introduced at trial through Detective Norman Kekic, who was assigned to investigate Jaffal's case. Detective Kekic also offered expert opinion testimony at trial to aid the jurors in understanding the evidence.

On the first phone call introduced at trial, Jaffal asked Al-Assadi what the police found on him while he was overdosing. She replied that "[t]hey found that fucking shit, bro, because you called for your fucking coat," prompting Jaffal to say: "I'm gonna go to prison." The conversation continued with Al-Assadi telling Jaffal that the police had found "[t]he big bag" in his coat pocket and took his phone. Jaffal repeatedly said that he was "never getting out no time soon," and that he was "gonna be gone for a long time."

In another excerpt of the call, Al-Assadi said that all the police found was "that big baggy and that little personal." Jaffal then said that "they could tell I'm a user," to which Al-Assadi replied "it was all personal." Al-Assadi continued and said that Jaffal "just like[d] to buy a big amount at one time and use it for personal," to which Jaffal said "[y]eah. I mean, I overdosed."

Detective Kekic testified that the term "little personal" meant drugs intended for personal use, in contrast to a "big baggy" of drugs (later tested and confirmed to weigh 35.69 grams), which Detective Kekic did not believe could have been intended for only personal use. Based on his experience, Detective Kekic testified that most narcotics users carry only "about a half a gram to a gram" at a time and that they "usually don't have enough money" to purchase large quantities for personal use, such as a month's supply. The 35.69 grams of narcotics found in Jaffal's coat pocket were estimated by Detective Kekic to have a street value of approximately $4,200. Detective Kekic did not specifically investigate Jaffal's sources of income, and he acknowledged that Jaffal might have been paid in cash at his job as a convenience-store clerk.

For heavy narcotics users, Detective Kekic testified that they could use as much as 1.5 grams of heroin per day, which meant that the 35.69 grams found in Jaffal's coat pocket could be approximately a 23-day supply for a heavy heroin user. Detective Kekic nonetheless believed, based on finding over 35 grams of narcotics on Jaffal, that he was investigating "a drug trafficking situation."

Other phone conversations introduced at trial evidenced an attempt by Al-Assadi to hide certain evidence. Al-Assadi, for example, spoke about trying to hide Jaffal's phone, but that the police found it anyway. She also mentioned that she "made sure that [the police] didn't see shit." Detective Kekic testified at trial that he believed that other evidence was not found at the scene because Al-Assadi had cleansed the premises.

Al-Assadi also spoke about her financial concerns since Jaffal was in jail, telling Jaffal that "the bills are so expensive" and that she might need to have her sister move in with her. Jaffal tried to assuage Al-Assadi's concerns and told her: "You'll be fine. Just follow my lead and relax. . . . You don't need to do none of that." He also instructed Al-Assadi to take his clothes to someone named Pete and that Pete would help out, but Al-Assadi was not so confident, telling Jaffal that Pete had told her that Jaffal owed him money. Jaffal insisted, however, that it was "the complete opposite" and that he did not owe any money to Pete. Instead, Jaffal claimed that someone named Hillary owed him $500 "for the other shit" and $1,200 for a car. Al-Assadi also told Jaffal that she intended to "collect from" someone named Deangelo.

Based on these calls, Detective Kekic testified at trial that there appeared to be financial issues going on. He also testified that some people addicted to drugs turn to drug dealing to "feed their habit."

While Jaffal was in custody, Detective Kekic sought Jaffal's cooperation by asking him to provide information about his supplier. Jaffal soon posted bond and was released from jail, however, causing Detective Kekic to lose contact with Jaffal.

C. Jaffal was arrested a second time

About one month later, on December 12, 2019, Jaffal was arrested again when his car was pulled over by Officer Michael Strange. The events from this arrest were the bases of Counts 2, 3, and 4. Officer Strange attempted to pull Jaffal over because he received a tip that the car was being driven erratically. Jaffal did not pull over until, after making several turns, he reached a dead end. Shortly before Jaffal stopped, Officer Strange saw "a pill bottle fly out of the driver's side window."

Officer Strange and other officers on the scene arrested Jaffal and searched him and his car. The officers found $1,097 in cash and a bag containing 27 pills in Jaffal's pockets. Although the pills appeared to have the markings of a 30-milligram oxycodone tablet, they were later tested and confirmed to contain a total of 2.90 grams of a mixture of...