UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-3552 │ v. │ │ BAHA JAFFAL, │ Defendant-Appellant. │ ┘

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

Argued: June 16, 2023

Decided and Filed: August 14, 2023

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

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

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Baha Jaffal was indicted by a federal grand jury on two counts of possessing controlled substances with the intent to distribute the drugs, in violation of 21 U.S.C. § 841(a)(1). Count 1 involved the distribution of 35.69 grams of a No. 22-3552 United States v. Jaffal Page 2

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

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

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

I. FACTUAL BACKGROUND A. Jaffal was arrested following a drug overdose

Count 1 involves events that took place on the evening of November 11, 2019 when Parma Police Officers Bryan Bernow and Nathan Ciarrone responded to a 911 call that a man was o