No Plain Error in Dual Lay–Expert Agent Narrative; Express Assent Invokes Invited-Error Bar to Modified Allen Charge — United States v. Kentrail Brown (11th Cir. 2025)

Introduction

In United States v. Kentrail Brown, the Eleventh Circuit (per curiam, non-argument calendar) affirmed convictions for methamphetamine conspiracy and related drug and firearm offenses. Two appellate issues framed the appeal: (1) whether the district court plainly erred by failing, sua sponte, to limit or exclude portions of testimony from a law-enforcement witness who testified in both lay and expert capacities; and (2) whether the court erred by giving a modified Allen charge after a jury note referenced non-unanimity. The panel held there was no plain error in admitting the challenged testimony and that defense counsel’s express agreement to the Allen charge constituted invited error, foreclosing appellate review.

The opinion is “Not for Publication,” and thus non-precedential within the Eleventh Circuit. Nonetheless, it provides a practical roadmap on two recurring trial problems: managing “dual-role” agent testimony at the admissibility margins (especially background statements and observational characterizations), and preserving or forfeiting challenges to supplemental unanimity instructions.

Summary of the Opinion

The government’s case centered on a trailer in Cairo, Georgia, used as a methamphetamine distribution hub tied to Joseph Jones. Multiple witnesses—including a courier, a co-resident, and a customer—placed Kentrail Brown in drug sales at the trailer. Investigators also introduced wiretapped calls, pole-camera images, and a controlled buy video depicting Brown weighing methamphetamine on a digital scale.

The case agent, Officer Stripling Luke of the Georgia Bureau of Investigation, was qualified as an expert in drug lingo, “tools of the trade,” and firearm use in drug trafficking. He offered expert opinions about drug packaging (“corners”), scales, and distribution indicators, and he also provided lay testimony authenticating media, identifying people in images, describing observed activity at the trailer, and explaining investigative steps.

On appeal, Brown targeted two snippets of Officer Luke’s testimony: (a) that he recognized Joseph Jones’s mother, Sondra, in a pole-camera scene because she had earlier told the FBI her son was a “big drug dealer”; and (b) his description that the crowd’s body movements during a gathering at the trailer suggested “drama” or a “heated discussion.” Brown argued the first was inadmissible hearsay and the second an improper, conclusory lay opinion imbued with the aura of expertise. He also challenged the trial court’s decision to give a modified Allen charge following a jury note about non-unanimity.

The Eleventh Circuit affirmed:

• There was no plain error in admitting the contested testimony. The “big drug dealer” remark was not hearsay because it was not offered for its truth but to explain how the agent recognized Sondra Jones in the images. The “drama” comment did not interpret conversations or plain language and hence did not run afoul of the limits on speculative interpretive testimony. In any event, both points were cumulative to overwhelming evidence of guilt (witness testimony, recordings, pole-camera images, and a controlled buy capturing Brown weighing meth).
• Any challenge to the modified Allen charge was barred by invited error because defense counsel expressly agreed to the proposed instruction and lodged no objection when invited by the court.

Analysis

Precedents and Authorities Cited

• United States v. Hawkins, 934 F.3d 1251 (11th Cir. 2019): The court relied on Hawkins for two related propositions about law-enforcement testimony:
  • It is error to admit “speculative interpretive testimony” that purports to interpret conversations as a whole or that interprets plain, non-coded language for the jury. The concern is especially acute with dual-role witnesses whose expert credentials may unduly bolster lay narration or speculation.
  • On plain-error review, improper testimony does not warrant reversal if it is “merely cumulative” of other, properly admitted evidence supporting the verdict.
• Federal Rules of Evidence 801(c), 802: The panel’s hearsay analysis turned on whether the out-of-court statement (Sondra’s “big drug dealer” comment) was offered for its truth. Because the agent’s testimony was offered to explain his recognition of Sondra in images (a non-hearsay purpose), it was admissible over a hearsay challenge.
• United States v. Emmanuel, 565 F.3d 1324 (11th Cir. 2009): Cited (via Hawkins) for the principle that even if testimony was erroneously admitted, the error is not plain where the disputed material is merely cumulative of substantial independent evidence.
• United States v. DiFalco, 837 F.3d 1207 (11th Cir. 2016): Reiterates the stringent four-prong plain-error standard and describes it as a “daunting obstacle” for appellants.
• Invited-error line:
  • United States v. Brown, 934 F.3d 1278 (11th Cir. 2019): A party cannot challenge as error a ruling that party invited.
  • United States v. Frank, 599 F.3d 1221 (11th Cir. 2010), and United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003), abrogated in part on other grounds by Rehaif v. United States, 588 U.S. 225 (2019): When counsel expressly agrees to proposed instructions or rulings, invited-error doctrine applies, foreclosing appellate review.

Legal Reasoning

1) Dual lay–expert testimony: hearsay and speculative interpretation

The defense urged the court to find plain error in admitting two types of agent testimony: a hearsay-laden identification and a descriptive gloss on behavior. The Eleventh Circuit rejected both.

First, the agent’s recounting that Sondra Jones had earlier told the FBI her son was a “big drug dealer” was not taken as proof that Joseph Jones was in fact a kingpin. Rather, the testimony served the non-hearsay purpose of explaining how the agent recognized Sondra in pole-camera images associated with a post-arrest gathering. When an out-of-court statement is admitted to show its effect on the listener or to explain the listener’s conduct (here, recognition and identification), it falls outside Federal Rule of Evidence 801(c). Because the testimony was admitted for this background-identification purpose, Rule 802’s hearsay ban was not implicated.

Second, the “drama” or “heated discussion” observation—based on body movements seen on video—did not interpret coded terms or translate the meaning of conversations “as a whole.” Under Hawkins, a quintessential problem is when an agent narrates recorded conversations for the jury or attaches interpretive significance to plain words under the guise of expertise. The challenged description here was an observational inference about the tenor of a scene, not a linguistic translation or holistic, speculative narrative of what was said. Framed as lay perception, it did not cross the Hawkins line.

In any event, even if either piece of testimony teetered near the limits, reversal would still founder on the third plain-error prong—no effect on substantial rights—because the remarks were “merely cumulative” when stacked against overwhelming, properly admitted evidence: eyewitness accounts of Brown’s drug sales, wiretaps referencing his dealing, and the controlled buy video and still photograph depicting Brown weighing methamphetamine on a digital scale.

2) No sua sponte duty to excise absent objection; plain-error gatekeeping

Importantly, the panel framed the entire evidentiary question under plain-error review because defense counsel did not object at trial. That posture matters. District courts do not ordinarily have a sua sponte duty to winnow testimony midstream, especially where the defense pursues no contemporaneous objection or limiting instruction. On appeal, the question becomes whether any unobjected-to admission was plainly erroneous and outcome-determinative. The court held it was neither.

3) Modified Allen charge: invited error forecloses review

After roughly two hours of deliberations, the jury asked whether it should write “not guilty” if there was no unanimity on a count and whether all jurors should still sign. The court proposed giving a modified Allen charge—an approved supplemental instruction urging continued deliberation while cautioning jurors not to abandon conscientiously held beliefs. Both the prosecutor and defense counsel affirmatively said “Yes, Your Honor,” and when the court asked for objections, defense counsel said “No, Your Honor.”

On appeal, Brown argued that agreeing was mere acquiescence, not an invitation. The Eleventh Circuit disagreed, applying its invited-error doctrine: an express agreement with the court’s proposed instruction invites the ruling and bars appellate review altogether. Unlike forfeiture (failure to object), which triggers plain-error review, invited error is a waiver in the truest sense—it extinguishes the claim.

Impact and Practical Significance

For trial judges and practitioners managing dual-role agents

• Non-hearsay “background” or “effect-on-the-listener” statements can be used to explain an agent’s recognition or subsequent investigative steps, even when the declarant’s words are harsh (e.g., calling someone a “big drug dealer”). But:
  • Courts and counsel should vigilantly cabin such use to a genuine non-hearsay purpose, lest “background” become a conduit for otherwise inadmissible propensity or character evidence.
  • Defense counsel should request a limiting instruction under Rule 105 clarifying the permitted purpose and disavowing any reliance on the statement for its truth. The absence of such a request here contributed to the plain-error headwind.
• Observational gloss about videoed conduct (e.g., “heated discussion”) will often be treated as lay opinion under Rule 701 if rationally based on perception and not on specialized knowledge. The line to watch—per Hawkins—is when an agent interprets language, “translates” ordinary words, or offers a narrative synthesis of conversations.
• Clear demarcation of roles remains best practice. The government here presented the agent as both an expert (drug lingo, tools, firearm use) and a lay witness (authentication, identification). The court cautioned the jury that expert opinions were not binding. Trial counsel should insist on:
  • Explicit transitions on the record between lay and expert modes,
  • Pattern instructions explaining the difference, and
  • Ground rules limiting interpretive narration of recordings to avoid Hawkins error.

For preserving challenges to Allen charges

• Express agreement to a proposed modified Allen charge—particularly after the court solicits input and objections—invokes the invited-error bar. That forecloses even plain-error review on appeal.
• If a party is concerned about timing (e.g., early in deliberations), content (risk of coercion), or delivery (tone, context), it must lodge an objection or propose alternative language. Mere silence might be treated as forfeiture; express assent is treated as invitation.

Appellate posture matters

• Unpreserved evidentiary claims face the “daunting obstacle” of plain-error review. Even arguable missteps are unlikely to produce reversal where the record contains strong independent proof of guilt. This case underscores that strategic non-objection at trial can foreclose meaningful review later.

Complex Concepts Simplified

• Plain error: A demanding four-part test on appeal for unpreserved issues. The appellant must show (1) an error, (2) that is “plain” (clear or obvious), (3) that affected substantial rights (a reasonable probability of a different outcome absent the error), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Hearsay vs. non-hearsay purpose: Hearsay is an out-of-court statement offered to prove the truth of what it asserts. If a statement is offered for another purpose—e.g., to explain why an officer took a particular step or recognized a person—it is not hearsay. Courts still guard against misuse where the “background” purpose is pretextual.
• Dual lay–expert witness: A witness (often a case agent) who testifies partly as an expert under Rule 702 (specialized knowledge, e.g., drug jargon) and partly as a lay witness under Rule 701 (firsthand observations). The danger is jurors may ascribe expert weight to lay opinions or speculative narration. Clear role delineation and careful judicial gatekeeping are essential.
• Modified Allen charge: A supplemental instruction to a potentially deadlocked jury urging further deliberation to reach unanimity if possible, while stressing that no juror should surrender an honest conviction. Courts must avoid coercive wording or timing.
• Invited error vs. forfeiture:
  • Forfeiture: Failing to object. Appellate review is possible but limited to plain-error scrutiny.
  • Invited error: Inducing or expressly agreeing to the ruling. Appellate review is barred; the error is treated as waived.

Conclusion

United States v. Kentrail Brown reinforces two pragmatic but powerful lessons. First, when a case agent testifies in a dual role, isolated references to out-of-court statements may be admissible for non-hearsay purposes such as identification, and observational commentary on video may be treated as lay opinion—particularly where any arguable overreach pales against robust, independent evidence of guilt. Under plain-error review, such issues are unlikely to yield reversal, especially when the testimony is cumulative. Second, a defendant who expressly assents to a modified Allen charge invites any error and cannot later challenge that instruction on appeal.

Though unpublished and thus non-binding, the decision is a cautionary tale about objecting in real time, requesting limiting instructions to cabin agent narratives, and preserving any concern about supplemental jury charges. In the Eleventh Circuit, Hawkins continues to cabin speculative interpretive testimony, DiFalco underscores the rigor of plain-error review, and the invited-error doctrine—applied here to the Allen instruction—remains a potent bar to belated appellate challenges.