Limiting Instructions Need Not Accompany Each Exhibit’s Publication; Drug-Related Text Messages Admissible Under Rule 404(b) to Prove Intent and Rebut “No Longer Dealing” Defense

I. Introduction

In United States v. Michael Alexander Davis (6th Cir. July 30, 2026) (unpublished; “NOT RECOMMENDED FOR PUBLICATION”), the Sixth Circuit affirmed a Middle District of Tennessee judgment arising from a DEA-controlled operation targeting an alleged ten-kilogram cocaine transaction. The case centered on whether the jury could hear—and how it could use—evidence of uncharged drug-related communications predating the controlled meet.

Parties. The United States prosecuted; Michael Alexander Davis appealed.

Key issues on appeal. Davis challenged (1) the timing of limiting instructions under Fed. R. Evid. 105; (2) admission of certain texts as res gestae (intrinsic/background) evidence; and (3) admission of other texts under Fed. R. Evid. 404(b) as improper propensity evidence.

Trial posture and verdict. The jury convicted Davis of attempted possession of cocaine with intent to distribute (21 U.S.C. §§ 841(a)(1), 846) and felon in possession (18 U.S.C. §§ 922(g)(1), 924). The district court acquitted Davis on § 924(c) (possession of a firearm in furtherance of a drug trafficking crime).

II. Summary of the Opinion

The Sixth Circuit affirmed all challenged evidentiary rulings.

• Limiting instructions: Because Davis did not request exhibit-by-exhibit limiting instructions (and did not object to the timing), review was for plain error. The court held there was no plain error where the district judge instructed the jury when admitting groups of exhibits and again in the final charge, rather than repeating an instruction each time an exhibit was published.
• Res gestae texts: Even assuming arguendo that the intrinsic-evidence ruling was questionable due to temporal distance, any error was harmless given “overwhelming” independent evidence of guilt.
• Rule 404(b) texts: The district court did not err in admitting drug-related text messages (including coded references such as “white girl” and “zips”) to prove intent and to rebut Davis’s defense that he only attended to pay an old drug debt and was no longer dealing.

III. Analysis

A. Precedents Cited

1. Limiting instructions, requests, and timing (Rules 105 / plain-error overlay)

• United States v. Fraser, 448 F.3d 833 (6th Cir. 2006)
  Role in Davis: Provided two controlling propositions: (a) Rule 105 limiting instructions are required “only upon the request of one of the parties,” and (b) failure to request/renew objections generally triggers plain error review. Davis’s lack of timely requests or objections placed him in Fraser’s procedural posture, limiting appellate relief.
• United States v. Latouf, 132 F.3d 320 (6th Cir. 1997)
  Role in Davis: Recognized that immediate instructions can “cure” prejudice from prior-bad-acts testimony, but Davis used Latouf largely to argue for repetition. The panel distinguished Davis’s circumstances by emphasizing the district court did instruct twice (upon admission and at final charge) and, critically, that any gap in timing did not “materially affect the verdict” given other evidence.
• United States v. Chance, 306 F.3d 356 (6th Cir. 2002)
  Role in Davis: Anchored the principle that timing of limiting instructions—contemporaneous versus final—is generally within the trial judge’s discretion. Davis used Chance to show contemporaneous instructions can be preferred, but the panel relied on Chance to uphold the judge’s chosen approach.

2. Res gestae (intrinsic) evidence and harmlessness

• United States v. Johnson, 95 F.4th 404 (6th Cir. 2024)
  Role in Davis: Supplied the Sixth Circuit’s modern framing of res gestae as “other acts that are inextricably intertwined” with the charged offense, while warning of “severe limitations as to temporal proximity, causal relationship, or spatial connections.” Johnson both enabled the government’s “background chain” theory and furnished Davis’s best argument (temporal remoteness).
• United States v. Hardy, 228 F.3d 745 (6th Cir. 2000)
  Role in Davis: Provided the canonical definition of res gestae/intrinsic evidence in Sixth Circuit practice. The panel used Hardy (via Johnson) to categorize the contested texts as potentially explanatory context rather than pure propensity.
• United States v. Baker, 458 F.3d 513 (6th Cir. 2006) and United States v. Evans, 883 F.2d 496 (6th Cir. 1989)
  Role in Davis: Explained why a party who objects on one ground below but advances a different ground on appeal is reviewed for plain error. The panel relied on these cases to set the review posture for Davis’s res gestae challenge.
• United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) and United States v. Gardiner, 463 F.3d 445 (6th Cir. 2006)
  Role in Davis: Provided the articulation of plain error’s four-part test that the panel applied when evaluating unpreserved evidentiary claims.
• United States v. Knipp, 138 F.4th 429 (6th Cir. 2025) and United States v. Kettles, 970 F.3d 637 (6th Cir. 2020)
  Role in Davis: These cases did the decisive work. Knipp (quoting Kettles) applied the “fair assurance” / “substantially swayed” harmless-error formulation and specifically endorsed affirming without resolving whether res gestae admission was error when other proof is overwhelming. Davis tracks that template closely: even if temporal remoteness created a Johnson problem, the panel affirmed on harmlessness.

3. Rule 404(b): test, standard of review, and drug-dealing evidence

• United States v. Saine, 162 F.4th 804 (6th Cir. 2025)
  Role in Davis: Provided the three-step admissibility test: (1) sufficient proof the act occurred, (2) proper non-propensity purpose, and (3) Rule 403 balancing. The panel structured its 404(b) analysis around Saine.
• United States v. Underwood, 129 F.4th 912 (6th Cir. 2025)
  Role in Davis: (a) Acknowledged intra-circuit confusion about the standard of review for 404(b) rulings and (b) cautioned that using past drug dealing to show drug dealing “runs very close” to Rule 404’s prohibition. Underwood nevertheless recognizes that when a charged offense requires specific intent, prior dealing can be admissible to prove intent. Davis leaned on that permission—especially for Exhibit 37—while also invoking Underwood’s caution to evaluate prejudice.
• Highmark Inc. v. Allcare Health Mgmt. Sys., 572 U.S. 559 (2014)
  Role in Davis: Quoted (via Underwood) to define abuse-of-discretion error as reliance on an erroneous view of the law or clearly erroneous assessment of evidence. It supported the court’s explanation of the possible review frameworks.
• United States v. Barnes, 822 F.3d 914 (6th Cir. 2016)
  Role in Davis: Represented the alternative “mixed standard” review approach (clear error / de novo / abuse of discretion per step). The Davis panel avoided choosing between Barnes and global abuse-of-discretion, holding the evidence admissible under either.
• United States v. Carter, 779 F.3d 623 (6th Cir. 2015)
  Role in Davis: Carter held that mere possession is not sufficiently similar to distribution to be probative of intent to distribute. The panel treated Exhibits 30 and 31 as “a closer call” under Carter, then sustained their admission on a different proper purpose: rebutting Davis’s “I’m not dealing anymore” theory and supporting lack of mistake/absence of innocent explanation.

4. Issue forfeiture and inadequate briefing

• Buetenmiller v. Macomb Cnty. Jail, 53 F.4th 939 (6th Cir. 2022) and McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997)
  Role in Davis: Used to deem certain exhibit challenges forfeited where only mentioned perfunctorily without developed argumentation—illustrating that appellate preservation is not only about objections below but also about adequate briefing on appeal.

B. Legal Reasoning

1. Limiting instructions: Rule 105 is request-driven; discretion governs timing

The panel’s limiting-instruction analysis is fundamentally procedural. Rule 105 requires a limiting instruction only “on timely request.” Under United States v. Fraser, the absence of a request and contemporaneous objection narrows review to plain error.

Substantively, the panel applied United States v. Chance to confirm that a trial judge may choose to give a limiting instruction contemporaneously or in the final charge. Davis tried to convert United States v. Latouf into an exhibit-by-exhibit repetition requirement. The panel declined: it found no authority making it “plain” error to instruct upon admission of grouped exhibits (and again at the end), rather than repeating the instruction every time an exhibit is published, especially where the defense did not ask for that practice at trial.

2. Res gestae: the panel avoided a hard intrinsic-evidence line by using harmless error

Res gestae (intrinsic/background) evidence can bypass Rule 404(b)’s character constraints if it is “inextricably intertwined” with the charged conduct (United States v. Hardy; United States v. Johnson). Davis argued that July and September texts were too remote to qualify.

The panel acknowledged Johnson’s “severe limitations” language but followed United States v. Knipp’s practical path: it assumed the argument without deciding and affirmed because the prosecution’s independent proof—informant testimony, agent observations, audio recordings, and seizure evidence (cash, phones, firearm)—provided “fair assurance” that the verdict was not “substantially swayed” (Knipp quoting United States v. Kettles).

This is an important stylistic move: rather than expanding or contracting the intrinsic-evidence doctrine, the court kept the doctrine stable and resolved the appeal on the prejudice/causation axis (substantial-rights/harmlessness), which is often dispositive in evidentiary cases.

3. Rule 404(b): texts can prove intent and rebut a “debt-only / no longer dealing” defense

The panel treated the government’s “prior bad act” as drug-distribution communications (not necessarily consummated sales). Because Davis did not dispute authorship of the texts, and agents interpreted coded terms and images as narcotics-related, the court found sufficient evidence that the “act”—texting about possessing/distributing narcotics—occurred (Step 1 under United States v. Saine).

On proper purpose (Step 2), the panel leaned on United States v. Underwood: intent is a legitimate non-propensity purpose when the charged drug offense is specific-intent in nature (here, attempted possession with intent to distribute). Exhibit 37—referencing “white girl” and “zips”—was treated as classic intent evidence closely tied to drug distribution.

The more difficult materials were Exhibits 30 and 31, which the panel recognized might look like “mere possession” under United States v. Carter. The court nevertheless upheld admission by emphasizing a different permissible evidentiary theory: these near-in-time conversations rebutted Davis’s narrative that he was no longer dealing and only appeared to settle an old debt. In other words, the evidence served to negate an innocent explanation and support the government’s theory of ongoing involvement, not simply to show “once a dealer, always a dealer.”

On unfair prejudice (Step 3), the panel found the proximity in time and similarity in subject matter reduced Rule 403 concerns. The court also relied on the presence of limiting instructions—given at admission and in final instructions—to mitigate the risk the jury would misuse the evidence for propensity.

C. Impact

Although unpublished, Davis is a useful roadmap for litigants in the Sixth Circuit on three recurring evidentiary disputes.

1. Limiting-instruction practice: The opinion signals that a judge’s decision to give limiting instructions at logical “admission points” (e.g., in batches) and again at the end is unlikely to be reversed—especially absent a timely, specific request for more frequent instructions. Practically, defense counsel who wants exhibit-by-exhibit repetition must build a record under Rule 105.
2. Intrinsic-evidence challenges may fail on harmlessness: The panel’s reliance on Knipp highlights that even a strong Johnson-based remoteness argument can be overcome if the government’s proof of the charged conduct is independently robust. Parties should therefore litigate not only admissibility but also prejudice and causation (what the evidence actually added).
3. Text messages as 404(b) proof of intent/ongoing dealing: Davis supports admitting coded, drug-related messages—particularly when close in time—to show intent to distribute and to rebut defenses claiming the defendant is no longer in the drug business or acted for an innocent reason (e.g., debt payment). The opinion also implicitly approves treating “the act” as the communication itself, not the completion of a sale, when the communication is probative of knowledge/intent.

IV. Complex Concepts Simplified

Limiting instruction (Fed. R. Evid. 105)

A direction from the judge telling jurors they may consider certain evidence only for a specific purpose (e.g., intent) and not for an improper one (e.g., propensity). Critically, the judge must give it only if a party makes a timely request.

Plain error

A demanding appellate standard applied when the issue was not properly preserved. The appellant must show a clear/obvious error that affected substantial rights and seriously harmed the fairness or reputation of proceedings.

Res gestae / intrinsic / background evidence

Uncharged conduct that is so intertwined with the charged crime that it “completes the story” (e.g., context, prelude, integral narrative). If truly intrinsic, it may fall outside Rule 404(b)’s character bar—but the Sixth Circuit cautions against stretching it too far in time or connection.

Rule 404(b)

Generally bars “other acts” evidence to prove character/propensity, but allows it for specific purposes such as intent, knowledge, absence of mistake, or motive. Courts apply a structured test (proof the act occurred; proper purpose; Rule 403 balancing).

Harmless error (for evidentiary rulings)

Even if the judge erred, the conviction stands if the appellate court has “fair assurance” the verdict was not “substantially swayed” by the error—often because other evidence of guilt was overwhelming.

V. Conclusion

United States v. Michael Alexander Davis affirms three practical evidentiary points in Sixth Circuit practice: (1) Rule 105 limiting-instruction timing is largely discretionary, and absent a timely request, appellate review is highly constrained; (2) disputes over whether drug-history evidence is truly intrinsic may be resolved on harmlessness when the government’s case is otherwise strong; and (3) drug-related text messages—especially close in time—may be admitted under Rule 404(b) to prove intent and rebut claims that the defendant was no longer dealing or acted for an innocent reason.