PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4338


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JEAN PAUL ALVARADO,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.  Michael F. Urbanski,
District Judge. (5:12-cr-00030-MFU-1)


Argued:   October 29, 2015                 Decided:   March 7, 2016


Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by published opinion.        Judge Niemeyer wrote the
opinion, in which Judge Harris joined. Senior Judge Davis wrote
a separate opinion concurring in part and dissenting in part.


ARGUED:   Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant.    Elizabeth
G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg,
Virginia, for Appellee.    ON BRIEF: Larry W. Shelton, Federal
Public Defender, Christine Madeleine Lee, Research and Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.     Anthony P. Giorno, Acting United
States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant
United States Attorney, Franklin Sacha, Appellate Intern, OFFICE
OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.




                              2
NIEMEYER, Circuit Judge:

     A   jury   convicted     Jean     Paul         Alvarado    of    knowingly     and

intentionally distributing heroin to Eric Thomas on March 29,

2011, with Thomas’ death resulting from the use of the heroin so

distributed,    in     violation      of       21    U.S.C.    §§     841(a)(1)     and

841(b)(1)(C).        The   district    court        sentenced       Alvarado   to   the

mandatory minimum sentence of 20 years’ imprisonment.

     On appeal, Alvarado contends that the district court erred

(1) in failing to clarify for the jury that the results-in-death

element meant that the jury could not convict him of the charged

offense if heroin was only a contributing cause of death; (2) in

failing to instruct the jury that Alvarado must have “reasonably

foreseen” that death could result; and (3) in admitting hearsay

testimony that Thomas said he purchased heroin from “Fat Boy,”

meaning Alvarado, in violation of the hearsay rule and the Sixth

Amendment’s Confrontation Clause.

     We affirm.       First, we conclude that, because there was no

evidence in the record that Thomas could have died without the

heroin, the jury’s verdict was necessarily consistent with the

Supreme Court’s requirement of but-for causation.                        See Burrage

v. United States, 

, 887-88 (2014).                       As a result,

the district court’s decision not to elaborate on the meaning of

the statutory results-in-death language did not amount to an

abuse of discretion, let alone plain error, in light of the

                                           3
court’s legitimate concerns about confusing the jury.                                     Second,

we conclude that our decision in United States v. Patterson, 

(4th Cir. 1994), forecloses Alvarado’s argument that

the    district       court    should      have        instructed          the    jury     on    the

foreseeability        of    death.         And       finally,       we     conclude      that    the

district      court    did     not    commit         reversible           error   in     admitting

hearsay testimony that Thomas said he purchased heroin from “Fat

Boy”   because       (1)    even     if    the       hearsay    did        not    fall    under    a

hearsay       exception,      its    admission          was     harmless;         and     (2)    the

hearsay was not “testimonial” and therefore did not implicate

Alvarado’s Sixth Amendment right of confrontation.


                                                 I

       In response to custodial police questioning on March 30,

2011, Alvarado admitted that, on the previous day, March 29, he

had sold five bags of heroin to Thomas.                             Text messages between

Alvarado and Thomas indicated that the sale occurred during the

late    morning       hours    in    the    bathroom           of    a     grocery       store    in

Harrisonburg, Virginia.              Within hours of that transaction, when

Thomas’ fiancée, Monica Shaughnessy, returned to the apartment

in    which    she    and     Thomas      were       living,        she    discovered      Thomas

slumped over in a chair.               As she testified at trial, “As soon as

I opened the door, I knew what was going on. . . .                                      I knew he

had overdosed on a mixture of Xanax and heroin.                                        He had an


                                                 4
amazing amount of Xanax and I knew he was going to get heroin

that day.      His new thing was to mix them together and that will

kill you and he knew this.”                When she touched Thomas, she found

that “[h]e was freezing.”                  She said she had “[n]ever felt a

human cold like that.”

       When Shaughnessy was unable to revive Thomas with CPR, she

called 911, a call that was received by the dispatcher at 3:13

p.m.       Emergency responders could not resuscitate Thomas, and at

4:07 p.m., he was pronounced dead at a local hospital.                                  When

investigators arrived at Thomas’ apartment within an hour of the

emergency 911 call, they observed an array of drug paraphernalia

around where Thomas had been sitting, including needles, needle

caps, and drug packaging materials.                  They also discovered a cell

phone, which led them to Alvarado, who was arrested the next

day.

       A    grand    jury    indicted      Alvarado       for      heroin    distribution

resulting in death, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C).

       Prior    to       trial,   Alvarado       filed    a     motion      in   limine   to

exclude      evidence       of    statements       made       by    Thomas,      including

statements by which Thomas told friends that he chiefly bought

heroin      from     a    drug    dealer    named        “Fat      Boy,”    referring     to

Alvarado.      The district court deferred resolution of the motion

until trial and at that time admitted the statements.

                                             5
     At trial, a former DEA special agent, who had investigated

Thomas’ death, testified that Thomas’ and Alvarado’s cell phone

records revealed that Thomas had made contact with Alvarado and

a man named Luis Blass, another drug dealer, in the days and

weeks before his death.       The investigator testified that Thomas’

last contact with Blass occurred on March 24, 2011 -- five days

before   Thomas’    death.      Thomas        communicated      with    Alvarado,

however, with text messages on March 26, 27, 28, and 29.                   In two

text messages, one on March 27 and one on March 29 (at 10:40

a.m.),   Thomas     wrote    that   he       wanted   a   “b”    from    Alvarado

(referring to a “bundle” of heroin bags wrapped together).                      In

further messages on March 29, Thomas and Alvarado arranged plans

to meet in the bathroom of a grocery store, and, in the final

text, Thomas confirmed to Alvarado that he had seen him and was

walking into the bathroom.

     Thomas’ fiancée Shaughnessy testified that Thomas had begun

using heroin in the summer of 2009 and that he had progressed to

daily use by early 2010.       She stated that Thomas used his entire

daily purchase of heroin, usually a bundle of five bags and

sometimes   more,     “[p]retty      much      within     an    hour    span”   of

consummating the purchase.          While Thomas would often share some

heroin with Shaughnessy, he would consume the remainder almost

immediately.      She also testified that, on the day of his death,

Thomas had driven her to work in the morning and had indicated

                                         6
to her that he intended to buy heroin soon thereafter before

going to play golf.             “[H]e had to go get heroin because he

wasn’t going to be able to [play golf] without that.”                             She

stated that she knew that Thomas purchased heroin from a dealer

named “Fat Boy,” because he said so and because she often went

with Thomas (about once a week) when he purchased heroin from

“Fat Boy,” referring to Alvarado.                 Shaughnessy also said that

Alvarado sold Thomas heroin in white-colored bags.

     Josh Melewski, one of Thomas’ best friends, also testified

that Thomas did not stockpile heroin, but would instead use it

almost    immediately        after   purchasing       it.      Recounting      Thomas’

suppliers     over     the     years,    Melewski     said     that   Thomas    first

obtained    heroin     in     2009   from   a   man    named    Miguel   Rodriguez.

After Rodriguez, he purchased heroin from a man named Luis, who

sold Thomas heroin in square-shaped, blue-colored bags that had

a stamp on them.             Melewski also testified that, beginning in

2010,     Thomas     started     purchasing     from    a    dealer    that    Thomas

referred to as “Fat Boy.”               Melewski stated that “Fat Boy” sold

heroin in “[p]lain bags with no stamp.”

     On     the    day       after   Thomas’     death,      Melewski    met      with

Shaughnessy at a hotel, where Shaughnessy took Melewski into a

bathroom and showed him bags of heroin she had purportedly taken

from their apartment on the day of the overdose.                      Melewski said



                                            7
that the bags that Shaughnessy produced “were the rectangle,

clear, wax bags.”

      A   forensic    toxicologist     with   the    Virginia    Department      of

Forensic      Science,   Dr.   David   Burrows,      testified   that     a    drug

screen of Thomas’ blood and urine revealed the presence of a

high concentration of morphine, which, he explained, was the

metabolized form of heroin.            The drug screen also revealed a

“therapeutic level” of Xanax -- i.e., an amount that a physician

would recommend to treat a specific condition -- and an amount

of Benadryl that was “below the associated toxic level.”                        Dr.

Burrows acknowledged that Benadryl could “aggravate” the effects

of   heroin    and   that   the   combination   of    heroin,    Benadryl,      and

Xanax could have “synergistic effects.”                He did not, however,

give an opinion on the role that each of the drugs played in

Thomas’ death.

      Virginia’s     Assistant     Chief   Medical     Examiner,    Dr.       Gayle

Suzuki, performed the autopsy on Thomas, and, at trial, she gave

her opinion as to the cause of death.             She concluded that Thomas

died of “heroin intoxication.”             While Dr. Suzuki acknowledged

that Thomas also had Xanax and Benadryl in his system at the

time of his death, as found by Dr. Burrows, she testified that

neither “contributed to” Thomas’ death.                 She explained that,

“without the heroin, [Thomas] doesn’t die.”



                                       8
      After closing arguments, the district court instructed the

jury:

      If you find the government has proved beyond a
      reasonable doubt that the defendant knowingly or
      intentionally distributed a mixture or substance
      containing a detectable amount of heroin on or about
      March 29, 2011, you must then determine whether the
      government has proved beyond a reasonable doubt that
      death resulted from the use of such substance.

(Emphasis added).        After retiring to deliberate, the jury sent a

question to the district judge asking whether the phrase “death

resulted from the use of the heroin” meant “solely from the use

of   the   heroin   or    that   the   heroin   contributed   to   [Thomas’]

death.”    After the district court asked for advice from counsel

about how to respond, counsel for both parties agreed not to

provide any clarifying instruction:

      [Assistant U.S. Attorney]:   Your Honor, we’re of the
      opinion, and I believe I’ve actually discussed it with
      defense counsel and for once in the last three days,
      we’re of the same opinion, that it is a bad idea to
      provide any additional information.

                                 *     *    *

      Our suggestion is we just say, I’m sorry, you’ve got
      to read the letter of the instructions and interpret
      it the way that you can, as best as you can.

                                 *     *    *

      [Counsel for Alvarado]:      I don’t think you can
      instruct them further on that.     I’m not quite sure
      what you would instruct them anyway.

The court agreed, noting that “elaborating on a term often makes

it less, rather than more, clear. . . .             It is on this ground


                                       9
that some courts, including our own, tell district judges not to

try to explain to a jury the meaning of beyond a reasonable

doubt.   Probably the same is true of results from.”

     After    the   district    court   discharged   a   juror     for   an

unrelated reason and empaneled an alternate, the reconstituted

jury submitted essentially the same question:

     The jury would like clarification on . . . the section
     that says “death resulted from the use of the heroin.”
     Should that be interpreted as meaning death resulted
     “exclusively”   from   the   heroin  or   the   heroin
     contributed to the death?

With the agreement of counsel, the court responded:

     Ladies and gentlemen, the Court has received two
     written questions from you . . . at 11:25 this
     morning.   The first question seeks clarification of
     the, quote, death resulted from the use of the heroin,
     unquote, language.

     My instruction on the law on this issue is set forth
     on page 25 of the jury instructions and states as
     follows:   [Court reads the original instruction given
     to the jury].

     You are to consider this instruction, along with all
     of the other instructions in this case, in reaching
     your verdict.

     The reconstituted jury retired to deliberate and, within 30

minutes, returned a guilty verdict, making two findings: (1)

that Alvarado knowingly and intentionally distributed heroin to

Thomas on March 29, 2011, and (2) that death resulted from the

use of the heroin so distributed.

     The     district   court   sentenced   Alvarado     to   20    years’

imprisonment and a 3-year term of supervised release.

                                   10
      On appeal, Alvarado requests a new trial, arguing that (1)

the district court should have clarified the “death resulted

from” phrase in its jury instructions; (2) the district court

should have instructed the jury on the foreseeability of death

resulting from Alvarado’s distribution of heroin; and (3) the

testimony that Thomas said he purchased heroin from “Fat Boy”

constituted inadmissible hearsay and violated Alvarado’s right

to confrontation under the Sixth Amendment.


                                          II

      Alvarado      contends    first     that,     in   light   of    the   Supreme

Court’s decision in Burrage, the district court erred in failing

to clarify for the jury the meaning of the “death results from”

statutory enhancement element of the offense.                     See 21 U.S.C.

§ 841(b)(1)(C) (enhancing the sentence for drug distribution “if

death . . . results from the use of such substance”); 

  (“Because      the   ‘death     results’    enhancement

increase[s]    the    minimum    and      maximum    sentences    to    which    [the

defendant is] exposed, it is an element that must be submitted

to the jury and found beyond a reasonable doubt”).                       He argues

that “the jury clearly thought the court’s instruction might

permit   it    to    convict    if   it    found    that    heroin     was   a   mere

contributing cause, because it asked about it, twice, receiving

no answer either time,” and he notes that “Burrage states that


                                          11
convicting       on    the    contributing       cause    theory     is     reversible

error.”

     The government contends that the district court did not

commit any error when responding to the jury because the court

accurately stated the controlling law by reciting the specific

language    of    § 841(b)(1)(C).          It    maintains      that,      because     the

Burrage Court concluded that the phrase “death results from”

carries    its    ordinary,     commonly      understood       meaning      of   but-for

causation,       the   district    court        appropriately      decided       not   to

further    explain      the    phrase.          In   addition,       the    government

contends that Alvarado waived this argument by not only failing

to object to the court’s response to the jury’s question, but

indeed by agreeing that the court should not attempt to clarify

the phrase “death results from” with anything other than the

straightforward        statutory    language         because    of    the    potential

confusion in attempting to define the phrase.

     We begin by noting, as clarified at oral argument, that

Alvarado does not contend that the instruction that the district

court gave was erroneous.             Rather, the question presented is

whether the court needed to explain further the statutory phrase

“results    from.”       Ordinarily,     we      review   the    district        court’s

decision not to give a further clarifying instruction for abuse

of discretion.         See United States v. Foster, 

, 244

(4th Cir. 2007).         And when, as in this case, a party fails to

                                         12
object to an instruction or the failure to give an instruction,

we review for “plain error.”                   See Fed. R. Crim. P. 30(d); 

a general matter, a district court has an obligation to

give     instructions       to        the     jury     that       “fairly       state[]        the

controlling law.”       United States v. Cobb, 

, 789 (4th

Cir.     1990).      Similarly,             when     the    jury       asks     a     clarifying

question, the “court’s duty is simply to respond to the jury’s

apparent    source    of     confusion             fairly       and    accurately          without

creating     prejudice.”              

       (internal

quotation marks and citation omitted).

       It is significant that, after the court received the jury’s

inquiry to clarify “results from” and told the jury to rely on

the    instructions    as    given,          leaving       it    to    apply    the       ordinary

meaning of “results from,” Alvarado’s counsel did not complain

that the court’s response was unfair or inaccurate.                                         To the

contrary,    she     explicitly         shared        the       view    that        any    further

“clarification” might lead to confusion.                           Nonetheless, Alvarado

now    argues,     relying       on    Burrage,        that       the    district          court’s

failure to clarify “results from” allowed the jury to convict

him even if heroin was only a contributing cause of Thomas’

death, a more lenient standard than but-for causation.                                     But, in

the context of the record in this case, Burrage does not help

Alvarado.

                                               13
       The     Burrage        Court       held       that        “results         from”      in

§ 841(b)(1)(C) invokes the “ordinary, accepted meaning” of the

phrase.        134   S.    Ct.    at    891.        And    the   ordinary        meaning     of

“results from” is but-for causation -- i.e., that death would

not have occurred in the absence of heroin.                       

        Or, as

the Court explained, a drug qualifies as a but-for cause of

death “if, so to speak, it was the straw that broke the camel’s

back.”         

    drug      that    plays      a    “nonessential

contributing role” does not suffice to apply the § 841(b)(1)(C)

penalty enhancement.              See 

further noted that

“results from” was employed in § 841(b)(1)(C) in a way similar

to other phrases of but-for causation, such as “because of,”

“based on,” and “by reason of.”                  

       In light of Burrage and in the context of this case, we do

not find that        the      district     court      abused     its   discretion,          let

alone       committed      plain       error,       in     refusing        to    attempt      a

clarification of “results from.”                    There was no evidence in this

case that would allow a jury to find that heroin was only a

nonessential contributing cause of Thomas’ death.                               Cf. 

(“We need not accept or reject the special

rule    developed       for      [cases    where      multiple      sufficient        causes

independently, but concurrently, produce a result], since there

was    no    evidence     here    that    [the      victim’s]      heroin       use   was   an

independently sufficient cause of his death”).                             As Dr. Suzuki,

                                               14
the only person who testified on causation, stated, “it’s the

heroin in [Thomas’] blood . . . that caused his death,” and

“without         the    heroin,       [Thomas]      doesn’t        die.”       Indeed,      she

explained         further      that    neither       the    Xanax     nor     the    Benadryl

“contributed to” Thomas’ death.                      Moreover, no party suggested

that, even without the heroin, Thomas would have died.                               The only

evidence presented was that, but for the heroin, death would not

have   resulted.            As   such,      any     hypothesis       that     the   jury    was

allowed to convict Alvarado because the heroin played merely a

nonessential contributing role in Thomas’ death has no support

in the record.            In this context, the district court’s decision

not to further define “death results from” cannot be found to be

an   abuse       of    discretion,      let    alone       plain    error.      Cf.      United

States v. Walton, 

, 698 (4th Cir. 2000) (en banc)

(“[W]e remain convinced that attempting to explain the words

‘beyond a reasonable doubt’ is more dangerous than leaving a

jury to wrestle with only the words themselves”).

       We    recognize       that,     in     different      circumstances          where   the

record might suggest that the decedent ingested heroin but might

have died nonetheless from the effects of other substances, a

court’s         refusal   to     clarify      the    phrase        “results    from”     might

become      a    problem.        In    such    an    ambiguous        scenario,      a    jury,

without a clarifying instruction, might be allowed to apply the

penalty enhancement under § 841(b)(1)(C) even if heroin was not

                                               15
a   but-for    cause       of    death.       To     foreclose     such       an    erroneous

finding, the court would likely have an obligation to explain

that a drug that plays a nonessential contributing role does not

satisfy    the       results-from         causation        necessary      to       apply   the

enhancement.         But, based on the record in this case, we cannot

conclude      that    the       district      court    abused      its    discretion       or

committed plain error.


                                              III

      Alvarado also contends that the district court erred in

failing to instruct the jury that “defendants should only be

held liable [under § 841(b)(1)(C)] for the foreseeable results

of their actions.”               While he acknowledges that our decision in

United    States      v.    Patterson,        

  (4th        Cir.    1994),

directly contradicts his position, he argues that Patterson no

longer controls in light of Burrage, where the Supreme Court

held that § 841(b)(1)(C) was an element of the offense, see

Burrage,   134       S.    Ct.    at   887.         When   analyzed      as    an     element,

according to Alvarado, § 841(b)(1)(C) becomes subject to the

same protections as other elements of an offense.                             He notes, for

instance, that the Supreme Court has held that, absent clear

congressional intent to the contrary, common law “requires the

government to prove that the defendant’s actions were not only a

cause of the result, but also that the result was a foreseeable


                                              16
one.”     (Emphasis added).              Citing Staples v. United States, 

, 606 (1994), he also points out that “offenses that

require no mens rea generally are disfavored.”

      The government contends that Patterson remains good law,

noting that we continue to rely on it in unpublished opinions,

and   that    other       courts    of    appeals    have    similarly          interpreted

§ 841(b)(1)(C) as containing no foreseeability requirement.

      We agree with the government that Patterson remains good

law on this issue.             The analysis in Patterson did not depend on

whether      or    not    §   841(b)(1)(C)        served    as    an    element     of   the

offense.          Rather, we focused on the meaning of the statutory

language,          regardless       of     its      role,        to     conclude         that

Ҥ 841(b)(1)(C)               imposes      no       reasonable            foreseeability

requirement.”            

.                   We explained that

“the plain language of § 841(b)(1)(C) does not require, nor does

it indicate, that prior to applying the enhanced sentence, the

district court must find that death resulting from the use of a

drug distributed by a defendant was a reasonably foreseeable

event.”       

concluded that the “plain language

reveals Congress’ intent” to “put[] drug dealers . . . on clear

notice that their sentences will be enhanced if people die from

using the drugs they distribute.”                 

   Supreme       Court’s      decision     in       Staples     does   not

suggest that § 841(b)(1)(C) should be construed otherwise.                               The

                                             17
Staples Court did observe, as Alvarado notes, that “offenses

that    require    no    mens     rea    generally       are   disfavored”             and     that

“some indication of congressional intent, express or implied, is

required to dispense with mens rea as an element of a 

.         But the crime for which Alvarado was convicted

does in fact contain a mens rea requirement.                              As the Supreme

Court    noted    in     Burrage,       “the    crime     charged     .    .       .     has   two

principal elements:            (i) knowing or intentional distribution of

heroin, § 841(a)(1), and (ii) death caused by (‘resulting from’)

the    use   of   that    drug,    §     841(b)(1)(C).”         134       S.       Ct.    at   887

(footnote omitted).            The first element -- knowing or intentional

distribution       of    heroin     --     explicitly       includes           a    mens       rea.

Staples does not suggest that every element of an offense must

contain a mens rea, directing only that we should think twice

before concluding that an offense, viewed as a whole, contains

no mens rea requirement.            

.

       As we pointed out in Patterson, § 841(b)(1)(C) does not

contain a separate mens 

.          Rather, it serves

to elevate the crime of knowingly or intentionally distributing

heroin to a more serious level.

       Thus, we conclude that the district court fairly stated the

controlling       law     in     refusing           to   instruct     the          jury        that

§ 841(b)(1)(C) contains a foreseeability requirement.                                  See 

.

                                               18
                                       IV

     Finally, Alvarado contends that the district court erred in

admitting hearsay that Thomas, the deceased declarant, had said

that he purchased heroin from “Fat Boy,” a name referring to

Alvarado.     Alvarado argues that the hearsay did not fall within

any exception to Rule of Evidence 802 (the hearsay rule) and,

moreover, that its admission violated the Confrontation Clause,

which   protects    his   right   to   cross-examine           declarants    making

“testimonial” statements.

     The government contends that the district court properly

admitted    the    testimony   about        Thomas’        statements   under    the

statement-against-interest        exception           to     the   hearsay      rule

contained in Rule of Evidence 804(b)(3).                   It also maintains that

admitting Thomas’ statements did not violate Alvarado’s rights

under   the    Confrontation      Clause       because         Thomas   made     the

statements to friends in an informal context and therefore the

statements were not “testimonial.”

     Rule 804(b)(3) provides, in relevant part, that a hearsay

statement made by a declarant who is unavailable as a witness

may nevertheless be admitted as evidence if the statement was

one that “a reasonable person in the declarant’s position would

have made only if the person believed it to be true because,

when made, it . . . had so great a tendency to . . . expose the

declarant to civil or criminal liability” and if the statement

                                       19
is     “supported      by     corroborating        circumstances         that     clearly

indicate its trustworthiness.”                  Stated otherwise, “hearsay may

be   admitted      under      this     exception      if    (1)   the    declarant        is

unavailable,       (2)      the   statement      is    genuinely       adverse    to     the

declarant’s penal interest, and (3) ‘corroborating circumstances

clearly indicate the trustworthiness of the statement.’”                              United

States v. Bumpass, 

, 1102 (4th Cir. 1995).

       Alvarado does not, in making his argument, appear to rely

on the first prong, requiring that the declarant be unavailable,

or the third prong, requiring corroborating circumstances that

indicate     the     trustworthiness       of    the    statements.           Rather,     he

argues that the second prong, which requires that the statements

be adverse to the declarant’s penal interest, was not satisfied.

With respect to that prong, he concedes that the portion of

Thomas’ statements in which he admitted to purchasing heroin was

“nominally against [his] penal interest” -- although “barely so”

because      Thomas    was    speaking     “only       to   other      drug   users      and

friends.”       Rather, he argues that the “identification of ‘Fat

Boy’    as   Thomas’     drug     source   was     never    against      Thomas’       penal

interest,      and     should      have    been       appropriately       redacted       or

excluded in its entirety.”                 (Emphasis added).             We need not,

however, resolve whether the identification of “Fat Boy” was

sufficiently       adverse        to   Thomas’     interest       to    fit     the    Rule

804(b)(3) exception because we conclude that, even if there was

                                           20
error, it was harmless in light of the strength of the other

evidence against Alvarado.                    See United States v. Banks, 

, 741 (4th Cir. 2007).

        That    evidence          all    but    conclusively       confirms       that      only

Alvarado sold heroin to Thomas on the day of his death and that

Thomas injected that heroin soon thereafter, resulting in his

death.         For     example,         in     addition   to     Thomas’        text-message

exchanges with Alvarado, in which Thomas indicates his intent to

buy a bundle of heroin from Alvarado, Alvarado himself admitted,

during    his       custodial          interrogation,     that     he    sold     heroin      to

Thomas    on    the        day    of    the    fatal   overdose.         And     the   heroin

packaging materials found near Thomas’ body were of the type and

color used by Alvarado and not other suppliers from whom Thomas

had     previously         purchased         heroin.      Also,     multiple       witnesses

confirmed       that       Thomas       used    heroin    almost     immediately         after

purchasing it.         The evidence here indicates as much, as an array

of drug paraphernalia was discovered around Thomas mere hours

after    he    purchased          heroin       from   Alvarado.         No    evidence      even

suggests that Thomas obtained the heroin from anyone other than

Alvarado       on    the    day    of    his    death.     On     this       record,   we   can

conclude “with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error,” if indeed



                                                 21
there was error.                United States v. Heater, 

, 325 (4th

Cir. 1995) (internal quotation marks and citation omitted).

      Alvarado’s                Confrontation                   Clause         argument          is       also

unpersuasive.               That            Clause       provides       that    “the       accused      shall

enjoy     the       right       .       .    .    to     be    confronted       with       the    witnesses

against him.”              U.S. Const. amend. VI.                         The Supreme Court has

interpreted           the       Clause             as         prohibiting        the       admission       of

“testimonial” statements from an unavailable declarant, unless

the   defendant           had       a       prior       opportunity       to     cross-examine            that

declarant.            Crawford               v.    Washington,          

,      68    (2004)

(“Where        testimonial              evidence          is    at    issue,     .     .    .    the    Sixth

Amendment demands what the common law required:                                            unavailability

and   a   prior       opportunity                  for    cross-examination”).                   While     the

Court has not provided an exhaustive list of what constitutes

“testimonial          evidence,”                  the    term     encompasses          such      things     as

“prior testimony at a preliminary hearing, before a grand jury,

or at a former trial; and . . . police interrogations.”                                                   Id.;

see     also        Davis       v.          Washington,          

,          822    (2006)

(explaining          that       statements               in     an    interrogation             qualify    as

“testimonial          when          the      circumstances            objectively          indicate       that

there     is    no    .     .       .       ongoing       emergency,       and    that       the      primary

purpose        of    the    interrogation                  is    to     establish       or      prove    past

events     potentially                  relevant         to     later    criminal          prosecution”).

But it is undisputed that testimonial evidence does not include

                                                          22
statements made to friends in an informal setting.                              See United

States v. Jordan, 

, 201 (4th Cir. 2007) (“To our

knowledge, no court has extended Crawford to statements made by

a declarant to friends or associates”) (citing cases from the

Second, Sixth, and Eighth Circuits); see also United States v.

Dargan, 

, 650 (4th Cir. 2013) (“Harvey made the

challenged statements to a cellmate in an informal setting -- a

scenario     far   afield       from    the        type     of        declarations    that

represented the focus of Crawford’s concern”); United States v.

Udeozor,   

,    270    (4th       Cir.        2008)    (“Because     [the

defendant]    plainly     did    not    think      he     was    giving     any   sort   of

testimony when making his statements to the victim during the

recorded   telephone      calls,       the       admission       of     these   two   taped

conversations into evidence did not violate [the defendant’s]

rights under the Confrontation Clause”).

     In this case, the challenged testimony included statements

that Thomas made to his fiancée and to one of his best friends -

- in an informal setting -- that he purchased his heroin from

“Fat Boy.”     Because such statements were not testimonial, their

admission did not implicate the Confrontation Clause.


                                   *         *      *




                                         23
     For   the   reasons   given,   we   affirm   the   judgment    of   the

district court.

                                                                   AFFIRMED




                                    24
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:

      My   friends       in    the    majority      affirm     the    district         court’s

judgment       against       Jean     Paul    Alvarado,       who    was    convicted       of

violating 21 U.S.C. § 841(a)(1) and sentenced to a mandatory

minimum    of       twenty    years’     imprisonment         pursuant      to    21    U.S.C.

§ 841(b)(1)(C)         for     distributing         heroin     to    Eric    Thomas        that

resulted       in    Thomas’s        death.        The   majority      holds       that    the

district       court’s        jury    instructions        as    to    the        meaning    of

§ 841(b)(1)(C)’s requirement that “death . . . results from” the

use   of   the      distributed       substance      were     adequate      and    that     the

district court neither abused its discretion nor committed plain

error in its instructions.                   Although the question presented is

close,     I    am    persuaded        that    Alvarado        did   not     receive        the

minimally fair trial the Constitution guarantees him, one in

which a properly instructed jury holds the government to its

obligation to prove the elements of the charged offense beyond a

reasonable doubt.            Accordingly, I respectfully dissent.

      For the reasons that follow, I would vacate the judgment of

conviction       under       § 841(b)(1)(C)        and   remand      with    instructions

that Alvarado either (1) be accorded a new trial or (2) be

resentenced          without     a     new    trial      on    the    lesser        included

§ 841(a)(1) distribution offense.                   In all other respects, I join

the majority in affirming the judgment of the district court.


                                              25
                                                  I.

       Alvarado challenges, among other things, the adequacy of

the district court’s jury instructions as to the meaning of the

statutory phrase “results from.”                            At trial, the district court

instructed        the      jury     that      it        must       “determine        whether       the

government        has    proved        beyond      a     reasonable       doubt       that     death

resulted      from         the     use       of        [a      substance        that        Alvarado

distributed].”                   J.A.       947.               This       language           tracked

§ 841(b)(1)(C)’s           requirement             that       a     sentencing        enhancement

applies      when       “death     .    .    .     results         from   the     use       of”    the

distributed         substance.              Alvarado         contends      that       these       jury

instructions         were        inadequate            and     therefore        erroneous          and

prejudicial.

                                                  A.

       “Whether         jury      instructions              were    properly      given       is    a

question of law.”               United States v. Herder, 

, 359

(4th Cir. 2010) (quoting United States v. Morrison, 

,   116    (4th       Cir.     1993)).          We       ordinarily     review       a    court’s

decision     to     give    particular           instructions          and     the    content       of

those instructions for abuse of discretion.                                  United States v.

Kivanc, 

, 794 (4th Cir. 2013); United States v.

Russell, 

, 1107 (4th Cir. 1992).                                     The majority

suggests, however, that because Alvarado failed to object to the

district     court’s        decision         not       to    clarify      or    supplement         its

                                                  26
instructions         in       response     to        the     jury’s        questions         during

deliberations, our review should be limited to that of plain

error.         I    disagree      and    believe           that    review        for   abuse    of

discretion is warranted.

       Prior        to    trial,       Alvarado           proposed      alternative           jury

instructions regarding § 841(b)(1)(C)’s causation element.                                     The

district       court      denied       Alvarado’s          proposed        instructions         and

instead decided that it would “instruct the jury only on what

the statutory language is”—that is, it would instruct the jury

only that § 841(b)(1)(C) requires “that death resulted from the

use of [the] heroin.”                  J.A. 481, 486–87.               Alvarado expressly

objected both to the court’s denial of his proposed instructions

and to the court’s decision to “use[] the statutory language

only”    in    instructing         the    jury       on     this    matter.            J.A.    487.

Whether or not the former objection was sufficient to preserve

the issue, see Jones v. United States, 

, 387 (1999),

in my view, the latter objection, which Alvarado raised before

the jury retired, effectively preserved for appeal the issue of

whether        the       “results        from”         instruction              was    adequate,

notwithstanding           Alvarado’s      failure          to     object     when      the    court

later    declined        to    elaborate      on     the     meaning       of    the   statutory

language.          See 

a party that objects to a

jury    instruction           before    the     jury       retires     may       challenge      the

instruction on appeal); Fed. R. Crim. P. 30(d), 51(b).

                                                27
     In analogous situations, this Court has “held that when a

party moves in limine to exclude evidence, the party need not

renew its objection when evidence within the scope of the motion

is introduced at trial.”          United States v. Cone, 

,

225 (4th Cir. 2013) (Wynn, J., concurring in part and dissenting

in part) (citing United States v. Ruhe, 

, 383 n.4

(4th Cir. 1999)); see also United States v. Williams, 

, 1325 (4th Cir. 1996) (“[M]otions in limine may serve to

preserve issues that they raise without any need for renewed

objections     at   trial.”);    Fed.    R.    Evid.     103(b).     Similarly,

Alvarado’s     objection   to    the    adequacy    of    the   “results     from”

instruction prior to deliberations most assuredly preserved the

issue    for   appeal,   and    Alvarado     did   not   need   to   renew   this

objection when the district court provided its instructions and

later declined to expand on them.              Accordingly, I would review

for abuse of discretion. 1


     1 Further, by failing to argue in its appellate brief for
application of plain error review and instead recognizing the
propriety of review for abuse of discretion, the government has
“waived the waiver argument” regarding Alvarado’s purported
failure to object to the jury instructions.    See United States
v. Carthorne, 

, 509 n.5 (4th Cir. 2013) (citation
omitted) (collecting cases), called into question in part on
other grounds by Johnson v. United States, 

, 2560
(2015).   Although the government ultimately sought plain error
review at oral argument, this belated effort was insufficient to
preserve the government’s contention that Alvarado waived his
jury instruction challenge at trial.      See United States v.
Powell, 

, 185 n.4 (4th Cir. 2011) (“By not
(Continued)
                                        28
                                       B.

    In      assessing     whether     the    district   court   abused     its

discretion, this Court must “review the entire jury charge to

determine    whether     the   jury   was    properly   instructed    on   the

elements of the offenses and the accused’s defenses.”                 

.        “By definition, a court ‘abuses its discretion

when it makes an error of law.’”              United States v. Moye, 

, 398 (4th Cir. 2006) (en banc) (quoting United States

v. Prince-Oyibo, 

, 497 (4th Cir. 2003)).                 The key

inquiry is “whether the instructions construed as a whole, and

in light of the whole record, adequately informed the jury of

the controlling legal principles without misleading or confusing

the jury to the prejudice of the objecting party.”              

(quoting Noel v. Artson, 

, 586 (4th Cir.

2011)).

    Alvarado     contends      that    the   jury   instructions     did   not

adequately convey that § 841(b)(1)(C) requires a showing that

Thomas’s use of the heroin that Alvarado distributed was either

independently sufficient to cause Thomas’s death or a but-for

cause of Thomas’s death.            Alvarado bases this argument on the



presenting any of these arguments in its appellate brief, the
Government has abandoned them.” (citing Snyder v. Phelps, 

, 216 (4th Cir. 2009), aff’d, 

(2011))).
Thus, review for abuse of discretion is appropriate for this
reason as well.


                                       29
Supreme Court’s decision in United States v. Burrage, 

(2014), which the Court decided after the jury’s verdict but

before     sentencing.       In     Burrage,     the    Court       considered,         among

other      things,   whether       a   defendant       “may    be    convicted          under

[§ 841(b)(1)(C)’s] ‘death results’ provision . . . when the use

of the controlled substance was a ‘contributing cause’ of the

death.”        

        Acknowledging          that    the      Controlled

Substances Act does not expressly define the phrase “results

from,” the Court determined that the phrase’s “ordinary meaning”

requires actual, or but-for, causation.                       

             The

Court held that, “at least where use of the drug distributed by

the defendant is not an independently sufficient cause of the

victim’s     death   . . .     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.”                         

         Thus,

the Court in Burrage recognized that a court may not impose

§ 841(b)(1)(C)’s      mandatory        minimum     sentence         based      on   a   jury

finding that use of the drug distributed by the defendant merely

contributed to someone’s death; rather, use of the drug must

have been an independently sufficient cause or a but-for cause

of the death for the penalty enhancement to apply.                                  See 

argues that the jury instructions provided

at   his    trial,   which     merely     directed       the       jury   to    determine



                                          30
whether     “death    resulted      from”    Thomas’s    use    of    heroin,       were

erroneous, i.e., prejudicially incomplete.

       The government maintains that the jury instructions could

not    have    been     erroneous    because    they     precisely         stated       the

controlling law—that is, the district court merely tracked the

language of the Controlled Substances Act in instructing the

jury   to     determine    whether    death    resulted     from     the     use    of    a

controlled substance.            Further, the government argues that the

meaning of the language “results from” is clear and unambiguous

in light of the Supreme Court’s recognition in Burrage that but-

for causation is the “ordinary meaning” of the phrase.                         See 

       In other words, the government contends that the

statutory language is plain on its face and therefore did not

require further explanation.           I disagree.

       Significantly,      the    relevant     inquiry    is    whether      the    jury

instructions “adequately informed the jury of the controlling

legal principles without misleading or confusing the jury to the

prejudice of the objecting party.”                   

(emphasis      added)     (quoting    

).         It    is

therefore not enough for jury instructions merely to parrot the

controlling law where the statutory text itself may mislead or

confuse the jury.           My friends in the majority and I are in

agreement on this matter, as they expressly recognize that, in

circumstances “where the record might suggest that the decedent

                                        31
ingested heroin but might have died nonetheless from the effects

of other substances, a court’s refusal to clarify the phrase

‘results    from’        might    become    a     problem.”        Ante       at    14.         The

majority     explains       that,    “[i]n      such   an    ambiguous         scenario,          a

jury,     without    a    clarifying       instruction,          might    be       allowed       to

apply     the   penalty         enhancement       under     § 841(b)(1)(C)               even    if

heroin was not a but-for cause of death.”                         

                The

majority and I differ, however, in our analyses of whether this

case presents such an “ambiguous scenario,” as I conclude (based

on   my   study     of    the    entire    record)        that    it   does,        while       the

majority determines that it does not.

      By failing to clarify the causation requirement in its jury

instructions, the district court (acting without the forthcoming

guidance from the Supreme Court) certainly confused or misled

the jury, and it left open the possibility that the jury could

convict Alvarado upon determining that Thomas’s use of heroin

was merely a contributing factor in Thomas’s death.                                  A guilty

verdict on this basis would plainly have prejudiced Alvarado;

indeed, the Supreme Court reversed a conviction in Burrage where

the jury had relied on this “markedly different understanding of

the statute.”       

.

                                             C.

        Although    the     Supreme        Court    indicated          that        the     phrase

“results from” imports an actual causation requirement based on

                                             32
its “ordinary meaning,” this meaning was far from clear to the

jury       in    Alvarado’s     case.         In     fact,     the    jury     unmistakably

expressed         its     confusion      as        to   the     applicable          causation

requirement,        even    though      the    district       court     had    tracked   the

language of the Controlled Substances Act in its instructions.

       During deliberations, the jury produced a note stating, “We

have a question regarding whether ‘death resulted from the use

of the heroin’ means solely from the use of heroin, or that

heroin ‘contributed to [Thomas’s] death.’”                           J.A. 747.      Once the

reconstituted jury began its deliberations anew the following

day,       the   jury    repeated    its      question:        “The     jury    would    like

clarification on . . . [t]he section that says ‘death resulted

from the use of the heroin.’                        Should this be interpreted as

meaning death resulted ‘exclusively’ from the heroin, or that

the heroin contributed to the death?”                         J.A. 922.        In response,

the    district         court   merely     pointed      the    jury     to    the   original

instruction containing the “results from” language, providing no

further guidance to alleviate the ambiguity that the jury had

highlighted. 2


       2
       Even though Alvarado did not object to the district
court’s response to these inquiries, I nonetheless consider the
jury’s questions and the district court’s response in assessing
the adequacy of the instructions, as our precedent requires us
to consider the instructions in light of the entire jury charge
and the whole record. See 

; 

.


                                               33
      The jury in this case was not alone in recognizing that the

phrase “results from” is susceptible to multiple meanings.                            In

Burrage, the Solicitor General argued before the Supreme Court

that “results from” did not require but-for causation.                          See 134

S.   Ct.   at    890    (noting    that    the    government       had    “urge[d]    an

interpretation         of   ‘results    from’    under     which    use    of   a   drug

distributed by the defendant need not be a but-for cause of

death, nor even independently sufficient to cause death”).                           The

Supreme Court, however, “decline[d] to adopt the Government’s

permissive interpretation of § 841(b)(1)” and instead held that

“[t]he language Congress enacted requires death to ‘result from’

use of the unlawfully distributed drug, not from a combination

of factors to which drug use merely contributed.”                    

      Moreover, other courts and judges have disagreed about the

meaning of § 841(b)(1)(C)’s text, demonstrating that the meaning

of   “results      from”    is   not   clear     without    further       explanation.

Before     the   Supreme     Court     granted    certiorari       and    reversed    in

Burrage,     the       Eighth    Circuit    had     affirmed       the    defendant’s

conviction in that case, holding that the district court had not

erred in instructing the jury that “results from” meant that the

controlled substance must have been a “contributing cause” of

the death.         

        Moreover, in a separate opinion in

Burrage,        Justice     Ginsburg,      joined     by     Justice       Sotomayor,

explained that she would apply the rule of lenity, a doctrine

                                           34
invoked    only    where      statutory    language       is     ambiguous,     in

interpreting § 841(b)(1)(C)’s text.             See 

(Ginsburg,

J., concurring in the judgment); cf. Bifulco v. United States,

, 387 (1980) (recognizing that the rule of lenity

“applies not only to interpretations of the substantive ambit of

criminal prohibitions, but also to the penalties they impose”).

     Thus, even though the Supreme Court has now clarified the

meaning of “results from” by interpreting the phrase’s “ordinary

meaning,” the language of the Controlled Substances Act, without

any further instruction, could certainly have confused or misled

the laypersons on the jury—just as it has confused many jurists—

to the prejudice of Alvarado.            Cf. United States v. MacKay, 

, 1295 (D. Utah 2014) (“In effect the Government

asks the Court to find the statutory interpretation skills of

the common layperson juror equal to those of Justice Scalia.

The Court is unable to make such a finding when this Court, the

district court in Burrage, and the Eighth Circuit, all failed to

correctly deduce the plain meaning of ‘resulting from.’”).                      In

fact,    the   instructions    plainly    did   confuse    the    jury   in   this

case, as evidenced by the jury’s questions. 3


     3  Although the reconstituted jury reached its decision
fairly quickly after the court addressed (or, more accurately,
declined to address) its last question, the jury’s questions
nonetheless illustrated its confusion regarding the “results
from” requirement.   Further, while the jury’s efficiency in
(Continued)
                                     35
         As we must consider the entire jury charge and the record

as   a    whole     in   assessing     whether       the     jury   instructions         were

adequate      and     not    misleading,       see    

;

, I also note that counsel on both sides

and testifying witnesses made statements throughout the trial

that easily could have led the jury to question the applicable

causation requirement.            For instance, during direct examination

of     Dr.    Gayle         Suzuki,     the        government       asked,       “Did     the

Diphenhydramine          [i.e.,   Benadryl]          contribute      to   Eric     Thomas’

death?”      before      clarifying,     “So       neither    the   alprazolam        [i.e.,

Xanax] or Diphenhydramine, even though they were there at the

same     time,    contributed     to    Eric       Thomas’    death[?]”          J.A.    621.

While these questions might be viewed as probing the independent

sufficiency         of   the   heroin     in       causing    Thomas’s       death,      this

phrasing could certainly have prompted the jury to believe that

the proper inquiry was which drugs did or did not “contribute[]

to” Thomas’s death.

         Likewise,       during       closing        arguments,       the        government

repeatedly emphasized Dr. Suzuki’s testimony that Xanax “played

no   role    in     [Thomas’s]    cause       of    death.”     J.A.      689.      As    the



reaching a verdict might indicate that the jury promptly
concluded that the statutory language required a finding of
independent sufficiency or but-for causation, it could just as
easily demonstrate that the jury quickly concluded that “results
from” required only contributory causation.


                                              36
government            explained,      Dr.   Suzuki       had   maintained       that    “[t]he

Xanax      and    diphenhydramine           played      absolutely      no    role     in    this

death.           It    was     the    heroin.”          

   cross-

examination, Dr. Suzuki described her determination that, even

though Thomas had had Xanax in his system when he died, the

Xanax had not “contributed or helped him to die.”                             J.A. 630.        As

above, although the government might have intended to elicit and

emphasize         these         statements         to    highlight      the     independent

sufficiency            of    the   heroin     in    causing      Thomas’s      death,       these

comments         could         also    have        signaled      to     the     jury,        even

unintentionally, that it must determine which substances may or

may    not    have          contributed     to,    or   played    a   role     in,   Thomas’s

death.       And a simple “but for” instruction could have readily

dispelled this possibility; sometimes saying less is not the

best       course       of     action.        Even      though    the    government          also

highlighted Dr. Suzuki’s testimony that Thomas would not have

died had he not ingested heroin (recalling Dr. Suzuki’s opinion

that the heroin was a but-for cause of death), the government’s

questions of witnesses and statements during closing arguments

did not make clear to the jury that one standard of causation

was more appropriate than another. 4


       4
       The government was not alone in making statements that
likely confused the jury as to the proper standard for
determining whether heroin actually caused Thomas’s death. In
(Continued)
                                                   37
     While it is not specifically the responsibility of counsel,

and certainly not that of an expert witness, to inform the jury

of the applicable legal standard, we must consider the whole

record,     including        these     statements        throughout         trial,        in

assessing whether the district court’s jury instructions were

adequate     and     not    misleading.         By     failing      to    provide        any

clarifying instruction on the meaning of “results from” before

the jury retired to deliberate or, of even greater significance,

in response to the jury’s subsequent questions highlighting the

jury’s    manifest     struggle       with     the   statutory          requirement       of

causation,     the     district       court    did     not    alleviate        any      jury

confusion    that     had    arisen    during    the    trial,      and    its    limited

instructions likely perpetuated this confusion.

                                          D.

     It is of no moment that the district court declined to

elaborate on the meaning of “results from” in an effort to avoid

the risk of causing further jury confusion.                        In explaining the

rationale     behind        its   decision      to   adhere        to    the     text    of

§ 841(b)(1)(C)        in      its     instructions,          the    district         court




her closing arguments, defense counsel stated that the jury
would need to “determine whether the death resulted from heroin,
whether the death resulted from Xanax, [or] whether it resulted
from the combination of the different drugs,” without clarifying
whether a guilty verdict would be more or less appropriate on
any one of these bases. J.A. 718.


                                          38
emphasized    that     it    found       persuasive    the   Seventh     Circuit’s

decision in United States v. Hatfield, 

(7th Cir.

2010) (Posner, J.).          The court in Hatfield had explained that

“[e]laborating on a term often makes it less rather than more

clear” and noted that “[p]robably the same is true of ‘results

from.’”   

           To be sure, as the Supreme Court had

not yet decided Burrage at the time of Alvarado’s trial, the

district court had little guidance on how best to instruct the

jury on the phrase’s meaning, especially since courts were so

divided on the issue.             Nevertheless, the question before us is

whether the instructions that the court provided, in light of

the entire jury charge and the record as a whole, “adequately

informed the jury of the controlling legal principles without

misleading    or     confusing      the    jury   to   the   prejudice    of   the

objecting party.”          

(quoting 

).        It is therefore irrelevant that the court might

have had difficulty providing more specific instructions.

     In light of the Supreme Court’s holding in Burrage that

§ 841(b)(1)(C) requires a finding that use of the controlled

substance was an independently sufficient or but-for cause of

death, the district court’s instructions, which merely directed

the jury to determine whether death “resulted from” the use of

heroin, were insufficient, no matter how well intended.                        See

  (“By    definition,    a   court   ‘abuses   its

                                          39
discretion when it makes an error of law.’” (quoting Prince-

)).              Thus, based on the record in this

case,     I   would      hold   that    the    jury    instructions       did    not

“adequately        inform[]     the    jury    of     the    controlling        legal

principles without misleading or confusing the jury,” 

   (quoting     

),   and    the

district court abused its discretion in providing these limited

instructions. 5


      5By the same logic, I would hold that the district court’s
decision to limit its instruction on causation to the “results
from” language of the statute was also plain error were it
necessary to apply that standard of review.      To satisfy the
plain error standard, a defendant must show that “(1) an error
was made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 

,
342–43 (4th Cir. 2009) (citing United States v. Olano, 

, 732 (1993)).    The third prong typically “means that the
error must have been prejudicial:     It must have affected the
outcome of the district court proceedings.” 

.
     Before the judgment against Alvarado became final, the
Supreme Court held in Burrage that it is reversible error for a
district court to instruct a jury in a manner that allows the
jury to find that “death resulted” under § 841(b)(1)(C) based on
a determination that the substance the defendant distributed
merely contributed to the death.    As the jury instructions in
this case did not foreclose the possibility that the jury would
convict upon finding contributory causation, the instructions
were erroneous, and the error in this case was plain at the time
of appellate review. See Henderson v. United States, 

, 1124–25 (2013) (“[A]s long as the error was plain as of
. . . the time of appellate review . . . the error is ‘plain’
within the meaning of [Federal Rule of Criminal Procedure
52(b)].”).   Further, as demonstrated throughout this opinion,
Alvarado has shown that the error was prejudicial, as it likely
influenced the jury’s determination that “death resulted” from
the heroin that Alvarado distributed, affecting the outcome of
(Continued)
                                         40
                                               II.

       The     majority         concludes    that,        despite      the     potential     for

error        in        giving      such      limited        jury           instructions       on

§ 841(b)(1)(C)’s           “death        results”     requirement,           no    such    error

occurred          in    this      case     because        the     record          unequivocally

demonstrates that heroin was an independently sufficient or but-

for    cause      of    Thomas’s      death.         In   other       words,      the   majority

essentially determines that the jury instructions in this case

could not have misled or confused the jury “to the prejudice of

the objecting party.”              Id. (quoting 

).                       As

I have already determined that the district court’s instructions

were    erroneous         on    the   record     before         us,    I    explore       whether

prejudice may have resulted from that error.

                                               A.

       When a district court “erroneously instructs the jury on an

element of the offense, the error may be disregarded as harmless

if a reviewing court can determine, beyond a reasonable doubt,

that a correctly instructed jury would have reached the same

conclusion.”           United States v. Hastings, 

, 241 (4th

Cir. 1998).            In other words, the relevant inquiry is whether it




the trial. See 

–35 (recognizing that the
defendant bears the burden of establishing that plain error was
prejudicial). Thus, the district court committed plain error in
providing these jury instructions.


                                               41
is “clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error.”                      Neder v.

United States, 

, 15–16 (1999); United States v. Brown,

, 699 (4th Cir. 2000).

      Because the jury instructions in this case allowed the jury

to convict Alvarado based on a misinterpretation of an element

of the charge—that is, based on a belief that § 841(b)(1)(C)’s

“death    results”       element 6     merely   required    that   the    heroin

“contributed to” Thomas’s death—and because the record does not

foreclose the possibility that a rational jury might have done

so,   I   would   hold    that   the    error   was   not   harmless.     Stated

differently, I cannot conclude beyond a reasonable doubt that a

rational jury given the correct instructions would have reached

the same outcome.

      It is important to note that, while the government bears

the burden of proving harmlessness, United States v. Lovern, 

, 701 (4th Cir. 2002), the government failed to address

this issue at all in its briefing.               It contends only that the

jury instructions were adequate without suggesting what results


      6Burrage made clear that, “[b]ecause the ‘death results’
enhancement increased the minimum and maximum sentences to which
[the defendant] was exposed, it is an element that must be
submitted to the jury and found beyond a reasonable 

(citing Alleyne v. United States, 

,
2162–63 (2013); Apprendi v. New Jersey, 

, 490
(2000)).


                                         42
if    we   find    otherwise.      Thus,       the   government       has    failed   to

establish     that     the    district   court’s        instructional        error    was

harmless     beyond      a    reasonable       doubt,    and     we    could      vacate

Alvarado’s        conviction     under     § 841(b)(1)(C)        on     this      basis.

Nevertheless, I will explore the issue further for the sake of

completeness.

                                          B.

       Although Dr. Suzuki testified that, in her expert opinion,

heroin intoxication was the cause of Thomas’s death, and she

essentially testified that the heroin was both an independently

sufficient and but-for cause of death, other evidence presented

at trial could have led a rational jury to conclude that heroin

was    merely      a   contributing      factor.         To    begin,       the   record

contained evidence suggesting that heroin was not independently

sufficient        to   have    caused    Thomas’s       death.        For     instance,

Thomas’s fiancée, Monica Shaugnessey, testified that Thomas had

ingested heroin on a daily basis and had done so for years prior

to his death.          In 2011, Thomas purchased and ingested between

five and ten bags of heroin each day, and the day he died was no

exception.        Yet he had only previously suffered cardiac arrest

and stopped breathing when he injected a combination of heroin

and Xanax, as he did when he died.                   This history suggests that

heroin alone was likely insufficient to have caused Thomas’s

death.

                                          43
      It is also significant that the morphine in Thomas’s system

from his ingestion of heroin was found to be at a toxic, not

lethal, level.       J.A. 619.       In other words, it was at the level

where the substance may “start doing damage to the body, harming

certain systems in the body,” but it had not reached the level

“associated with knowing [the substance] to have caused death.”

J.A. 579.     Further, Thomas had likely developed a high tolerance

for heroin such that he could have ingested much more of the

drug before truly reaching a level that was toxic to him.                        Both

doctors who testified at trial stated that they had found the

morphine in Thomas’s system to be at a toxic level based on

standard    charts     that     do   not      account   for     an     individual’s

particular tolerance for the substance.                 This evidence supports

the   conclusion     that     the    heroin     in   Thomas’s        system,    while

harmful, was not an independently sufficient cause of his death.

      The record also does not contain uncontroverted evidence

that heroin was a but-for cause of Thomas’s death.                      Shaugnessey

testified   that     Alvarado    had   only     recently      begun    injecting    a

combination    of    Xanax    and    heroin    and   that   doing      so    prompted

severe reactions in Alvarado:              “His new thing was to mix them

together and that will kill you and he knew this.”                          J.A. 415.




                                        44
It is unclear, however, that Thomas’s injection of Xanax alone 7

or    in   combination   with        Benadryl—even      at     the    relatively     low

levels that Thomas used these substances–could not have caused

his    death.      Dr.   David       Burrows,     the    forensic       toxicologist,

testified       that   injecting       a     substance       rather     than    orally

ingesting it causes the drug to have a faster additive effect.

J.A. 596.       He also stated that mixing Xanax and Benadryl, which

are both central nervous system depressants that can affect a

person’s     breathing       and     heartbeat,        can     have    “additive     to

synergistic       effects”      as     the      two    drugs     “compound[]”        and

“aggravate” one another.             J.A. 589–90.       Dr. Suzuki corroborated

this testimony, as she confirmed that mixing Xanax and Benadryl

together can have an “adverse effect.”                 J.A. 593.

       Finally, the jury was free to assess the credibility of Dr.

Suzuki’s     testimony    and      disregard      it    if     the    jury   found   it

unreliable.       Indeed, the jury was specifically instructed on

this point:       “Expert testimony should be considered just like

any other testimony.          You may accept or reject it, and give it

as much weight as you think it deserves. . . .                       The same as with

any other witness, it is up to you to decide whether to rely


       7
       While Dr. Suzuki did indicate that, in her expert opinion,
the relatively low level of Xanax in Thomas’s system would have
been insufficient to have independently caused his death, she
did not speak to the effect that Thomas’s intravenous injection
of the substance may have had.


                                           45
upon it.”          J.A. 935.       Accordingly, simply because Dr. Suzuki’s

testimony suggested that heroin was an independently sufficient

and but-for cause of Thomas’s death did not preclude the jury

from       concluding      otherwise      and     convicting       on    an   alternative

basis.       Thus, I cannot conclude beyond a reasonable doubt that a

rational       jury      would    have    reached        the    same    outcome      had    it

received a proper instruction.                    Rather, a rational jury could

certainly have concluded, based on the record, that the use of

heroin was neither an independently sufficient cause nor a but-

for        cause    of     Thomas’s        death     and        improperly        triggered

§ 841(b)(1)(C)’s          penalty       enhancement      upon     finding     that    heroin

merely “contributed to” Thomas’s death.

       In     determining        otherwise,        the     majority      indicates         that

“[t]here was no evidence in the record that Thomas could have

died without the heroin” and that “no party suggested that, even

without the heroin, Thomas would have died.”                            Ante at 2, 14.

These considerations appear to impermissibly shift the burdens

of proof and persuasion to Alvarado, the criminal defendant.

See Sullivan v. Louisiana, 

, 277–78 (1993) (“The

prosecution        bears    the    burden    of    proving       all    elements     of    the

offense       charged      and    must    persuade       the    factfinder     ‘beyond       a

reasonable doubt’ of the facts necessary to establish each of

those elements.” (emphasis added) (citations omitted)); see also

In    re    Winship,      

,     359–64       (1970)   (discussing        the

                                             46
“vital” and “indispensable” nature of the government’s burden to

prove guilt of a criminal charge beyond a reasonable doubt).

      Alvarado had no duty to present evidence that the heroin he

was   charged    with      distributing    merely     contributed   to   Thomas’s

death; nor did he have any responsibility to argue that Thomas

would have died absent the heroin.              Rather, the government bore

the burden of proving beyond a reasonable doubt that the heroin

Alvarado distributed was an independently sufficient or but-for

cause of Thomas’s death.              The only evidence that the government

presented on this matter was Dr. Suzuki’s testimony, to which

the jury was free to assign little weight or reject entirely

based   on      its     determination      of   Dr.     Suzuki’s    credibility.

Further, even though Alvarado had no duty to present evidence,

the record did in fact contain evidence, including Shaugnessey’s

and Dr. Burrows’s testimony, that could well have led a rational

juror to conclude that the heroin was neither an independently

sufficient      cause      nor    a   but-for   cause    of   Thomas’s     death.

Accordingly, I would hold that the erroneous instruction was not

harmless beyond a reasonable doubt.

      And    there    is    one   additional    consideration      in   this   case

worthy of notice that bolsters the claim of prejudice.                         The

indictment in this case contained but one count, that alleging a

violation of § 841(b)(1)(C), the death count.                   The indictment

contained no separate count for mere distribution of heroin.

                                          47
Thus, given the manner in which the government elected to charge

and present the case, the jury was faced with a choice of either

acquitting an avowed drug trafficker or throwing up its hands

and    convicting         after    its    repeated            requests      of   the     court    for

clarification of the causation requirement were rebuffed.                                         

   n.3.        In     the    face       of    the       court’s    serial     refusals       to

provide       the     help        the    jury        was       desperately         seeking,       few

laypersons would be willing to say “not proven” and return a

verdict in favor of the drug dealer.

                                                   III.

       For the foregoing reasons, I would vacate the judgment of

conviction      under       § 841(b)(1)(C)               and    remand      with    instructions

that Alvarado either (1) be accorded a new trial or (2) be

resentenced         without        a     new       trial        on   the     lesser       included

§ 841(a)(1) distribution offense.                         Cf. United States v. Hickman,

, 760 (4th Cir. 2010); see also United States v.

Blue, 

, 237 (4th Cir. 2015) (recognizing that “it is

within    our       power    to     direct         entry       of    judgment      on    a    lesser

included      offense        when       vacating          a    greater       offense”        if   the

commission of the lesser offense “can be established from facts

that    the     jury      actually        found”          (citations        omitted));        United

States     v.       Ford,     

      (8th    Cir.       2014)    (finding

insufficient           evidence          of        causation          and        remanding        for

resentencing on lesser included drug offense).                               I agree with the

                                                    48
majority’s   determination   that    no   other   error   infected   the

proceedings in this case.




                                    49