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, — U.S. —, 133 S.Ct. 1121, 1124-25, 185 L.Ed.2d 85 (2013) ("[A]s long as the error was plain as of ... the timé 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 the trial. See Olano, 507 U.S. at 734-35, 113 S.Ct. 1770 (<HOLDING>). Thus, the district court committed plain
holding that the defendant necessarily bears the burden of satisfying the third prong of the plain error test holding that appellant bears burden of establishing jurisdiction by a preponderance of the evidence holding defendant bears burden of establishing affirmative defense of official immunity recognizing that the defendant bears the burden of establishing that plain error was prejudicial holding that a defendant bears the burden of establishing affirmative defenses under the wprkers compensation statute