UNITED STATES OF AMERICA, Plаintiff-Appellee, v. KELI DUNNICAN, Defendant-Appellant.
No. 19-3092
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: June 9, 2020
20a0181p.06
Before: SUTTON, BUSH, and READLER, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:18-cr-00144-1—John R. Adams, District Judge.
COUNSEL
ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. Keli Dunnican, Bruceton Mills, West Virginia, pro se.
JOHN K. BUSH, Circuit Judge. Keli Dunnican appeals a judgment of conviction for the charges of being a felon in possession of a firearm, in violation of
Because we find no error in the district court’s rejection of Dunnican’s
I.
A. The Trial Evidence
Dunnican’s conviction arose from a search of his car conducted by Ohio Adult Parole Authority (APA) officers while he was on parole. One condition of Dunnican’s parole was that he consent to regular warrantless searches by APA officers. The search at issue was conducted at Dunnican’s residence in East Cleveland, Ohio by APA Officers Miranda Polito and Jennifer Williamson.
Polito found it suspicious that Dunnican had parked his car so far away from his residence, given that the driveway was open and accessible. Polito and Williamson also observed that Dunnican smelled like marijuana and alcohol, his eyes were glazed, and he seemed anxious or “fidgety.” After some questioning by Polito, Dunnican admitted that he had marijuana in his vehicle. Consequently, the officers placed Dunnican in custody, where they conducted a pat-down search and seized his car keys.
Polito and Williamson then searched Dunnican’s car and discovered a small bag of marijuana, an electronic scale with residue, and two cellular telephones. In the car’s trunk were two grocery bags. The first contained several individually-packaged Ziploc bags of marijuana, as well as bundles of U.S. currency wrapped in rubber bands; the second grocery bag contained a loaded firearm. When the officers asked Dunnican about the items seized, he responded that thе car was not his. However, records from the Bureau of Motor Vehicles revealed that Dunnican was the lessee of the vehicle.
Upon taking custody of the evidence from the search, East Cleveland Police confirmed that the discovered firearm was loaded with fifteen rounds of ammunition. Additionally, after receiving consent from Dunnican’s father, “Kelly” Dunnican, to search the residence, officers located a jar with more suspected marijuana in Dunnican’s bedroom.
Dunnican was arrested and transported to Cuyahoga County Jail. During booking, officers discovered that he had $300 cash in his wallet.
Eric French, an Ohio Department of Rehabilitation and Corrections Officer, was assigned as the lead investigator in Dunnican’s case. French was a member of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Gun Violence Task Force. He testified that the packages found in the trunk of Dunnican’s car contained marijuana and weighed approximately one pound in total. French further testified that upon test-fire testing, the seized firearm was confirmed to be operational.1 Also, and most significantly, French introduced recordings of four post-arrest telephone calls made by Dunnican:
- Dunnican’s first call was with his father, Kelly Dunnican, who told his son during this call that officers had located “homegrown” in the son’s bedroom. (R.77: Notice, GX16, at 1:50). To this, Keli Dunnican responded: “they got the other stuff anyways, so . . . that ain’t gonna hurt nothing.” (GX16, at 2:03).
- In a second call, Dunnican told his father that although he was unconcerned about the officers locating marijuana, as it would only result in a misdemeanor charge, he worried that “the gun is a problem.” (R.77:
Notice, GX17, at 0:15). Dunnican also indicated that he had “the craziest luck in the world.” (Id., at 0.45). Relatedly, he surmised to his father that an individual named “Anthony” had been funneling information about him to law enforcement. (Id.). Responding to this, Kelly Dunnican questioned why his son had failed to “take care of business” prior to returning home. (Id., at 2:00). Keli Dunnican explained that he did not have time, and that although he had attempted to return to the house via “the back way,” the patrol officers had seen him. (Id.). Once spotted, according to Dunnican, hе had tried to reach his father on the telephone to see if he could meet him to take the car Dunnican drove. Later in this same conversation, an unidentified individual joined the call, at which point Dunnican admitted to this individual and his father that the car was his. Dunnican then complained that the officers would search his phones. - Dunnican’s third call was with an unidentified individual. Dunnican stated that he did not believe he could be charged with carrying a concealed weapon, given that the firearm was found in the car’s trunk, and not within his immediate possession. At this point, another unidentified individual joined the call. Responding directly to Dunnican’s last statement, the individual remarked, “I wish you would’ve just gave me that s**t,” to which Dunnican responded, “It was in the trunk.” (R.77: Notice, GX18, at 4:05). Dunnican then declared that he “was about to go right to the house and put that s**t in there,” but did not have enough time. (Id. at 4:15).
- In Dunnican’s final phone call, an unidentified woman asked him why he had not given her “the s**t” to take home. (R.77: Notice, GX19, at 2:30). Dunnican responded that he did not expect the officers to search his car.
Dunnican also had text-message conversations, which French summarized in exhibits introduced into evidence. French testified that the text-message conversations were obtained through a multi-step extraction process, which involved French’s receiving two of Dunnican’s phones from the East Cleveland Police, obtaining a search warrant for their search, and then attempting to access the phone data. This latter step involved the assistance of a mobile-extraction technician, who tried to download the data from one phone into a comprehensive report. However, the security features of the second phone impeded the data’s accessibility.
Prior to trial, the government filed notice that it intended to authenticate the evidence extracted from the first cellular telephone under
French began by presenting two text-message summaries to establish Dunnican’s ownеrship of the telephone at issue. The first, “Exhibit 22,” revealed a text-message exchange between Dunnican and Polito on June 28, 2017. In that exchange, the two coordinated Polito’s home inspection of Dunnican’s residence. The second text-message exchange was between Dunnican and a contact named “LaRae Davis.” In this exchange, Dunnican sent a photo of his white Nissan sedan, accompanied by a message stating: “A ‘15 Altima, thanks Lil Sis!” (R. 69: French Trans., PageID 726–27; R. 77: Notice, GX 35, PageID 1070).
The government then requested permission from the court to introduce additional text messages between Dunnican and others under
messages for the government’s stated purpose of showing Dunnican’s intent. However, at the time, the court refrained from weighing the probative value of the text messages against their prejudicial value under
The government’s final witness was DEA Special Agent Shaun Moses, a thirteen-year narcotics investigator with extensive experience in Cleveland-area drug trafficking investigations.4 The district court determined that Moses was a qualified witness regarding street-level drug trafficking, and therefore, qualified to provide opinion testimony regarding the facts at hand. Moses testified as to these matters:
- Drug Packaging: According to Moses, marijuana is typically sold in pounds, half-pounds, quarter-pounds, or ounces, and the street price varies based on quality. The bags of marijuana seized from Dunnican’s trunk appeared to be quarter-pound bags, which sell, on average, for $200-to-$300 each. Furthermore, the way in which the bags were packed—in multiple Ziploc bags of approximately the same size, weight, and packing—was consistent with drugs packaged for distribution.
- Drug Paraphernalia: Moses observed that it is common for drug traffickers to fold their cash into bundles secured by rubber bands, as Dunnican had done, (id., PageID 792), and it is “incredibly common” for drug traffickers to have electronic
scales to weigh products for customers. (R.69: Moses Trans., PageID 792–93). - Firearms: Moses testified that drug traffickers frequently use and keep firearms, generally with the objective of “protect[ing] themselves while conducting their drug sales.” (Id., PageID 793). Relatedly, handguns are considered more portable and concealable than other types of firearms, such as shotguns or rifles.
- Drug Slang: Moses noted that the terms used in Dunnican’s text messages were consistent with language frequently used by dealers regarding different “grades,” prices, and quantities of marijuana, as well as terms used generally to coordinate meeting spots to sell marijuana to customers. (Id., PageID 795–802).5
- Overall assessment: Moses cited the police reports, photographs, lab reports, and text messages relating to Dunnican’s activity as suggesting that the marijuana was packaged for resale.
Based on the testimony of Moses and French, the district court concluded that the text messages were admissible under
At the close of the government’s case, Dunnican moved for a judgment of acquittal on all counts, which the district court overruled.6 Dunnican then presented his defense, calling only one witness, his father. Kelly Dunnican claimed that the firearm found in his son’s car belonged to Kelly’s deceased ex-wife. He also stated that he had placed the weapon in his son’s trunk upon learning that a probation officer would be inspecting the residence. However, during cross-examination, Kelly Dunnican denied (1) that any probation officer had ever inspected his house before his son’s release, and (2) that any probation officer had ever inquired whether there were firearms in his household. At the conclusion of his defense, Keli Dunnican did not renew his Rule 29 motion for judgment of acquittal.
In rebuttal, the government called Polito, Dunnican’s probation officer. Contrary to Kelly Dunnican’s claims, Polito stated that she had inspected the Dunnican residence, during which she inquired if there were any firearms in the home and was told by Keli Dunnican, Kelly Dunnican, and Kelly Dunnican’s wife that thеre were none. Following the government’s rebuttal, Keli Dunnican did not renew his Rule 29 motion for judgment of acquittal.
Shortly after jury deliberations commenced, the district court was informed that Juror 12, the only African American juror, was being disruptive during the discussions. Upon hearing these complaints, the court immediately instructed the jury of its duty to deliberate.
Unfortunately, however, difficulties in jury deliberations continued. Forty-five minutes later, Juror 7 contacted the court “distraught” and “in tears.” (R. 70: Trial Trans., PageID 955). After bringing the issue to the attention of the parties, the court decided to question each jury member individually. During this questioning the Foreperson claimed that instead of deliberating, Juror 12 was lamenting to her colleagues about “her neighborhoods, her plight as a black woman, [and] the shootings in her neighborhood.” (Id., PageID 960, 966–67). According to Juror 7, no amount of coaxing could convince Juror 12 to re-focus on the facts of the case—even following the court’s reminder to the jury of their duty to deliberate. After the court sent Juror 7 back to the jury room, it was reported that Juror 12 had just requested to be excused.
Thereafter, the court questioned Juror 12, who declared that although she had been deliberating, her colleagues had not done so. Juror 12 also informed the court that she was experiencing increased symptoms from her Crohn’s disease, which she indicated was the result of racial tensions that had arisen during deliberations. (Id.) At this time, the court excused Juror 12 for medical reasons for the remainder of the day.
Following the questioning of Juror 12, the court advised the parties that it intended to continue its individual questioning of the jurors. However, Dunnican objected, asking the court to refrain from questioning any more jurors, given that Juror 12’s illness could result in her permanent removal from the jury. The court agreed to end the questioning, and then excused the remaining jurors for the day.
Juror 12 failed to return the following day, and her mother contacted the court to request her daughter’s release from continued jury duty, given that she reportedly had been in the emergency room the previous evening. Defense counsel initially agreed to the court’s release of Juror 12 and did not make any objection that Juror 12 was thе only African-American on the panel.7 The court then outlined its alternatives for going forward, which included either (1) replacing Juror 12 with an alternate; or (2) instructing the jury to continue deliberations with eleven jurors. At this point, Dunnican objected to Juror 12’s removal. In light of the objection, the court contacted Juror 12 again, and was informed simply that Juror 12 was unable to come to court. The court then decided to adjourn deliberations again, leaving open the possibility that Juror 12 would return the following day.
The next day, the court made multiple unsuccessful attempts to contact Juror 12. The government then requested that Juror 12 be excused and replaced with an alternate pursuant to
At sentencing, the district court ordered Dunnican to serve an 84-month imprisonment term on Count 1; a 60-month imprisonment term on Count 2, to be served concurrently; and a mandatory 60-month imprisonment term on Count 3, to be served consecutively. This sentence varied upward a total of 21 months from the sentence calculated by the advisory U.S. Sentencing Guidelines.
II.
Dunnican argues that the district court abused its discretion by admitting into evidence under
In most cases, “[a] district court’s evidentiary rulings will not be reversed absent a clear showing of abuse of discretion.” United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005) (citing U.S. v. Hickey, 917 F.2d 901, 904 (6th Cir. 1999)). “Abuses of discretion in evidentiary rulings . . . merit reversal only if the error is not harmless—‘that is, only if the erroneous evidentiary ruling affected the outcome of the trial.’” United States v. Farrad, 895 F.3d 859, 875 (6th Cir.) (quoting United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011)), cert. denied, 139 S. Ct. 651 (2018). Nonetheless, if a party fails to object, “his contention on appeal will prevail only if the trial court’s evidentiary decision was plainly erroneous, thus affecting his substantial rights and resulting in a miscarriage of justice.” United States v. Evans, 883 F.2d 496, 499 (6th Cir. 1989).
At trial, Dunnican never objected to the authenticity of the data extracted from his cellular phones, meaning, he failed to challenge the government’s use of a
A. Evidentiary Authenticity Challenge
As explained by the Advisory Committee in 2017, there are critical convenience and efficiency objectives linked to the application of
[T]he expense and inconvenience of producing an authenticating witness for this evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented.
The government adhered to these authentication procedures. In compliance with Rules
stipulations of
B. Hearsay Challenge
Under
Based on the exclusion of
C. Challenge to Exhibit Summaries
It is often the case that “admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and
request, Dunnican waived any challenge to the admission of portions of the extraction report. We need not address that argument, given our primary determination that the evidence was properly authenticated.
jury.”
The government complied with
III.
Next, relying on
“We review a district court’s ruling on the admissibility of evidence for abuse of discretion.” United States v. Yu Qin, 688 F.3d 257, 261 (6th Cir. 2012); see also United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002). An abuse of discretion has been committed if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached
First, the district court must decide whether there is sufficient evidence that the other act in question actually occurred. Second, if so, the district court must decide whether the evidence of the other act is probative of a material issue other than character. Third, if the evidence is probative of a material issue other than character, the district court must decide whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect.
Yu Qin, 688 F.3d at 262 (quoting Jenkins, 345 F.3d at 937 (6th Cir. 2012)).
We have “repeatedly recognized that prior drug-distribution evidence is admissible [under
Because Dunnican was charged with possessing marijuana with the intent to distribute it, the government’s introduction of text messages regarding his other drug transactions was relevant to show a necessary element of the charge: Dunnican’s intent to distribute the illegal drug. Before presenting these text messages, the government adhered to proper protocol under
Dunnican argues that the span of time separating the period when the text
Finally, the district court did not abuse its discretion in determining that the probative value of the text-message evidence substantially outweighed its potential prejudicial effect under
Dunnican argues that the district court should have excluded evidence under
IV.
Dunnican also argues that the district court erred in admitting the expert-opinion testimony of DEA Special Agent Moses, who spoke regarding the particulars of the illegal marijuana trade and explained specialized drug jargon and transactions. “The question of admissibility of expert testimony is reviewed for an abuse of discretion.” United States v. Harris, 192 F.3d 580, 588 (6th Cir. 1999); see General Electric Co. v. Joiner, 522 U.S. 136, 139 (1997).
Expert testimony regarding the very specific slang, street language, and jargon used in the illegal drug trafficking trade may be admitted under
Although Dunnican concedes that Moses possessed the requisite qualifications to provide testimony regarding drug jargon and transactions, he claims that Moses misinterpreted the record, and therefore, offered an opinion on Dunnican’s mental state—a violation of
A plain reading of the disputed testimony demonstrates that Moses offered no opinion on Dunnican’s mental state or intent. Rather, Moses, drawing upon his training, experience, and review of the evidence, simply shared his subjective assessment of the facts at hand: that it “appear[ed] to [him]” that the marijuana discovered in Dunnican’s car “was packed for resale.” (R. 69: Moses Trans., PageID 801–02).
Q.: So Agent Moses, based on your review of this case, looking at your experience working at the DEA, did you come to a conclusion about whether the marijuana taken out of the trunk was intended for distribution or whether it would have been intended for personal use?
MR. DUFFRIN: Objection.
THE COURT: It’s overruled.
THE WITNESS: I did. In my opinion, just based on the reports as I read them, the photographs, the lab reports and then the text messages, it certainly appears to me that that marijuana was packaged for resale.
(Id.) (emphasis added).
At no point did Moses state any opinion of Dunnican’s state of mind. Rather, Moses merely offered “general terms” (i.e., the “marijuana was packed for resale“) related
Moses’s testimony did not suffer from the infirmities of the agent’s testimony we ruled invalid in United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013). In Freeman, we deemed the challenged agent to be a lay person witness; therefore, we analyzed his testimony under
In contrast with its treatment of the agent in Freeman, the government here laid a sufficient foundation for Moses to provide expert opinion, based оn his extensive training and experience—a fact that Dunnican does not dispute. Also, unlike the witness in Freeman, Moses grounded his opinions in concrete, objective facts—his analysis of the “photographs,” the “lab reports,” and the “text messages“—none of which constituted speculation or hearsay. See United States v. Brown, 7 F.3d 648, 653 (7th Cir. 1993) (“[The agent] based his opinion on his examination of the physical evidence itself, including the crack confiscated from [the defendant], and on the police reports of [the defendant’s] arrest. These are precisely the types of evidence experts in the field of narcotics interdiction rely on to form their opinions.“). Finally, unlike the prosecutor in Freeman, the government neither asked, nor led, Moses to offer legal conclusions, based on hypothetical questions that would result in his improper assessment of Dunnican’s intent.
Accordingly, the district court did not abuse its discretion in admitting the testimony of Moses.
V.
Dunnican argues that the district court erred in denying his motion for acquittal pursuant to
However, Dunnican neither renewed his Rule 29 motion after presenting evidence, nor did he renew it after the government presented a rebuttal witness. He, therefore, is entitled to reversal of the district court’s denial of his Rule 29 motion only if this ruling resulted in a “manifest miscarriage of justice.” See Faymore, 736 F.2d at 334 (“Absent a manifest miscarriage of justice, we are unable to review the district court’s denial of a Rule 29 Motion where the defendant did not renew
Here, the government clearly has presented sufficient evidence of all of the elements of Dunnican’s three charges. See
VI.
We also hold that Dunnican was not entitled to a new trial, pursuant to
Admittedly, the jury deliberations in this case were not straightforward. Nonetheless, given the events that caused the district court to excuse Juror 12, we find that the court’s ultimate decision to excuse Juror 12 for medical reasons was sound.
First, as verified by the record, Juror 12 had reported during voir dire that she suffered from Crohn’s disease, but would be able to serve as a juror unless she had a “flare-up.” (R. 68 Voir Dire Trans., PageID 59). Unfortunately, during the first afternoon of deliberations, Juror 12 reported a flare-up, telling the court she had a fever and would have to go to the emergency room, which the court allowed. (R. 70: Trial Trans., PageID 969–71).
Recognizing that jury deliberations were in progress, and cognizant that Juror 12 was the only African-American on the panel, the district court then took careful steps before it finally located an alternative juror. First, the day after Juror 12’s
Dunnican did not object to the careful steps the district court took prior to finding a replacement juror; in fact, Dunnican actually conceded both that the court took “reasonable steps under the circumstances” and that the court had no other alternative, but to locate a replacement. (R. 72: Trial Trans., PageID 1003). And following Dunnican’s lack of objection, the district court complied with
However, on appeal, Dunnican argues that the rest of the jury was “impacted by issues of race and racial disagreements,” and these “racial issues” upset all the other jurors during the deliberation process. (Appellant’s Br., at 53). The record fails to support this claim. The district
court interviewed Juror 7 and the Foreperson individually. Although both of these jurors reported that Juror 12 was resisting discussion of the facts of the case, their answers never offered sufficient evidence from which the court could conclude (1) that Juror 12 was refusing to deliberate; or (2) whether any of the jurors who would render the verdict had acted inappropriately during deliberations. There was no evidence that any juror’s previous interaction with Juror 12 affected the verdict. Therefore, Dunnican’s speculation that there was “documented misconduct” during jury deliberations, is without basis in fact.
Furthermore, as captured in the record, the court instructed the jury to decide the case based solely on the evidenсe presented—not on any inherent bias or emotion. We act under the assumption that jurors follow the instructions they receive. United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir. 2001).
Lastly, Dunnican offers no evidentiary support for his contention that his conviction by an all-white jury violated his Sixth Amendment rights. The Sixth Amendment promises “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
To demonstrate a prima facie unfair jury cross-section claim, Dunnican must show: “(1) that the group alleged to bе excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). Dunnican neither addressed the elements of an unfair cross-section claim, nor provided any evidence to show that African Americans were excluded from the jury, that the representation of African Americans was not fair and reasonable, or that African Americans were underrepresented due to any systematic exclusion. In fact, the efforts made by the district court to retain Juror 12, an African American, on the jury, notwithstanding her illness, support the conclusion that there was no exclusion or underrepresentation that would establish a Sixth Amendment violation under the Duren factors. Dunnican’s mere assertion of a Sixth Amendment violation is not enough to establish that such a violation occurred.
VII.
Finally, Dunnican argues that the court’s decision to impose an upward variance of 21 month to his sentence was substantively unreasonable.
We review the reasonableness of a sentence under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008). “Reasonableness review has both substantive and procedural components.” United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (quoting United States v. Keller, 498 F.3d 316, 322 (6th Cir. 2007)). “The procedural component requires us to ensure that the district court: ‘(1) properly calculated the applicable advisory Guidelines range; (2) considered the other
The substantive component calls for us to review the “substantive reasonableness of the sentence imposed under an abuse of discretion standard[,] . . . taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51–53 (2007); see also Jeross, 521 F.3d at 569; Bolds, 511 F.3d at 581. “For sentences within the Guidelines, we may apply a rebuttable presumption of substantive reasonableness. We may not, however, apply a presumption of unreasonableness to outside-Guidelines sentences.” Gall, 552 U.S. 28. In general, we must give “due deference” to the district court’s conclusion that the sentence imposed is warranted by the
Prior to imposing the sentence, the court considered the nature and circumstances of Dunnican’s offense, his personal history and characteristics, and the other proper
Given the district court’s assessment of Dunnican’s situation, and in light of its responsibility to consider the need to provide just punishment, see
In addition, contrary to Dunnican’s claim, the district court did consider mitigating factors, and explicitly acknowledged that he had (1) completed his GED; (2) attended college classes; (3) experienced a difficult upbringing during childhood; and (4) currently had children of his own.
Yet, even with these mitigating factors in mind, the district court reasonably found Dunnican’s previous criminal history to be the most significant consideration in its sentencing. A district court’s “attach[ing] [of] great weight” to a few factors does not constitute reversible error, see Gall, 552 U.S. at 57, and inevitably, “[n]ot all
Considering the above, it is clear that the district court did not abuse its discretion, and Dunnican’s sentence is substantively reasonable.
In addition to the six issues that appointed counsel raised on appeal, Dunnican submitted a pro se supplemental brief, in which he alleged several more errors. These claims relate to (1) alleged jurisdictional defects at the federal and district court level; and (2) constitutional issues related to Dunnican’s conviction and confinement. However, a defendant must present a single brief.
IX.
To summarize, we hold the following: (1) the district court did not err in allowing the government under
Therefore, we AFFIRM the district court’s judgment in full.
Notes
With regard to the text messages, I’m allowing you to see them. You can consider them only as it relates to the government’s claim on the defendant’s intent.
One of the issues in the case is whether the defendant intended to distribute the drugs in question. I’m allowing you to see the text messages for that purpose and that purpose only.
(R. 69: Moses Trans., PageID 794).