United States v. Encarnacion ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1165
UNITED STATES OF AMERICA,
Appellee,
v.
DROEL JARED ENCARNACION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and McConnell,* District Judge.
Murat Erkan, with whom Erkan & Associates was on brief, for
appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Nathaniel R. Mendell, Acting United States Attorney, was on
brief, for appellee.
February 18, 2022
* Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Droel Jared
Encarnacion challenges his convictions for certain drug-
trafficking offenses. In support, he questions the propriety of
the wiretap that led to his apprehension, the district court's
handling of the juror-selection process, and two of the court's
evidentiary rulings. Concluding, as we do, that the defendant is
tilling barren soil, we affirm.
I
We begin by rehearsing the facts and travel of the case.
On August 2, 2018, Michael Patterson, a local police officer
delegated to work as part of a Drug Enforcement Administration
(DEA) task force, sought and received authorization from the
district court to intercept wire and electronic communications
associated with identified telephone numbers linked to suspected
drug-traffickers, including Robin Martinez Suazo (Suazo). Suazo
was no stranger to the DEA: he had come to its attention during
an earlier drug-trafficking probe.
Before seeking this wiretap authorization, the
government had conducted its investigation through the use of a
variety of techniques. It had come to believe that Suazo regularly
sought to import narcotics into Massachusetts. It had, however,
made only limited progress in discovering the wider parameters of
his drug-trafficking activities and the structure of his network.
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The wiretap on Suazo's telephone quickly bore fruit.1
On five separate dates in August and September of 2018, the DEA
intercepted calls between Suazo and a man subsequently identified
as the defendant. During the first four calls, the pair discussed
prices, quantities, and varieties of narcotics, frequently using
guarded terms and references (e.g., "blue ones," "white"), but
sometimes being more explicit. In one such call, Suazo sketched
a scenario in which a third party would purchase drugs in Utah (a
"border zone" where prices were low) and resell them for more money
in the Boston market. That paradigm was echoed in the last of the
intercepted calls: the defendant, who was in Salt Lake City, told
Suazo that he had rescheduled his flight because "the guy who was
going to give me the thing is going to give it to me today." He
added that "I have the money on me to buy the thing and I even
have the suitcases and all my things here, to buy it, send it and
go straight to the airport." In the course of that call, Suazo
reminded the defendant of the lucrative prices for which the drugs
could be resold in the Boston area. Because prices were subject
to fluctuation, there was some urgency to the deal: in Suazo's
words, "We have to put a couple pesos in our pocket, man, quickly."
1 On the intercepted calls, Suazo and the defendant spoke in
Spanish. Translations were procured, and English-language
transcripts were used at trial.
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A few hours after this call ended, the defendant boarded
a red-eye flight to Boston. When he arrived early the next
morning, he rented a car and drove to a house at 645 Fellsway West
in Medford, Massachusetts. He entered the house and — later that
morning — a Federal Express package was delivered. On the same
day, the defendant drove to East Boston and picked up Suazo. While
the two men were driving, DEA agents stopped their vehicle. The
unopened Federal Express package was on the floor in the front
seat. The shipping label indicated that it had been shipped by
"Droel Encarnacion" in Utah to "Elisida Figueroa" at the Fellsway
West address.2 When opened, the package was found to contain 427.3
grams (slightly less than a half kilo) of cocaine. Suazo and the
defendant were arrested on the spot.
On November 7, 2018, a federal grand jury sitting in the
District of Massachusetts returned an indictment that, as relevant
here, charged the defendant with conspiracy to possess cocaine
with intent to distribute, see 21 U.S.C. § 846, and possession of
cocaine with like intent, see id. § 841(a)(1). During pretrial
proceedings, the defendant moved to suppress the fruits of the
wiretap. The district court denied his motion and, in due season,
a three-day jury trial ensued. The jury found the defendant guilty
2 Subsequent investigation revealed that Elisida Figueroa is
the defendant's mother.
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on both of the charged counts, and the district court thereafter
sentenced him. This timely appeal followed.
II
On appeal, the defendant advances four claims of error.
We deal with those claims sequentially.
A
The defendant argues that the wiretap should not have
been authorized and that, therefore, the district court erred in
denying his motion to suppress. To put this argument in
perspective, some background is useful.
Through the enactment of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (Title III), 18 U.S.C.
§§ 2510-2522, "Congress authorized wiretapping as needed to allow
effective investigation of criminal activities while at the same
time ensuring meaningful judicial supervision and requiring
specific procedures to safeguard privacy rights." United States
v. Gordon, 871 F.3d 35, 43 (1st Cir. 2017). To that end, Title
III sets out specific showings that must be made to obtain judicial
authorization for a wiretap. See 18 U.S.C. § 2518(3).
At the outset, the government must adduce facts showing
probable cause to believe that a particular defendant is linked to
a particular crime. See id. § 2518(3)(a). It must then adduce
facts sufficient to support "probable cause for belief that
particular communications concerning that offense" are likely to
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be obtained through the desired wiretap. Id. § 2518(3)(b). Next,
the government must show that either the individual or the offense
is sufficiently connected to the means of communication that it
seeks to surveil. See id. § 2518(3)(d). Finally, the government
must make a showing of necessity, that is, a showing that "normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." Id. § 2518(3)(c).
In this instance, the defendant premised his motion to
suppress on two theories. He alleged, first, that the wiretap
application was insufficient because the facts supporting the
initial probable-cause showing were stale and unreliable. Second,
he alleged that the wiretap application was insufficient because
the government had not made an adequate showing of necessity.
The district court found neither theory persuasive, and
the defendant now reprises them on appeal. Our standard of review
is familiar. When reviewing a district court's denial of a motion
to suppress wiretap evidence, we assay its factual findings for
clear error and its legal conclusions de novo. Gordon, 871 F.3d
at 43. In conducting this tamisage, we must determine whether the
application was at least "minimally adequate" to support the
authorization of the wiretap. Id. (quoting United States v.
Santana, 342 F.3d 60, 65 (1st Cir. 2003)).
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1
We start with the defendant's challenge to the adequacy
of the probable-cause showing. It is common ground that
information in an affidavit supporting a wiretap application must
be timely, not stale. See, e.g., United States v. Schaefer, 87
F.3d 562, 568 (1st Cir. 1996). Information is stale if, for
example, "it established probable cause at some point in the past
but does not support probable cause at the time of the warrant's
issuance." United States v. McLellan, 792 F.3d 200, 210 (1st Cir.
2015).
Just as different kinds of produce will retain their
freshness for varying periods, the timeliness of probable cause is
context-dependent and will vary both with the nature of the
information itself and with the nature of the suspected offense.
See United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st
Cir. 2008). Thus, "[w]hen evaluating a claim of staleness, we do
not measure the timeliness of information simply by counting the
number of days that have elapsed." Id. "Instead, we must assess
the nature of the information, the nature and characteristics of
the suspected criminal activity, and the likely endurance of the
information." Id. Facts regarding an amorphous drug-trafficking
enterprise, in which large-scale transactions may take weeks or
months to mature, normally will have a longer shelf life. See
Schaefer, 87 F.3d at 568 (observing that longer-running nature of
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drug-trafficking conspiracies makes it more likely that "a datum
from the seemingly distant past will be relevant to a current
investigation"); United States v. Nocella, 849 F.2d 33, 40 (1st
Cir. 1988) (noting that "drug trafficking, if unchecked, is apt to
persist over relatively long periods of time" so that the shelf
life of facts supporting probable cause may be longer). This shelf
life sometimes may be extended when the application describes an
ongoing pattern of conduct in the drug-trafficking arena, see
Nocella, 849 F.2d at 40, because the probable cause determination
will not hinge on discrete pieces of standalone evidence but,
rather, on the totality of the circumstances, see United States v.
Anzalone, 923 F.3d 1, 5 (1st Cir. 2019) (citing District of
Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)).
In this case, the information supporting probable cause
in the wiretap application included the following:
• Early in 2017, an alias ("Jevito") used by Suazo
was mentioned on intercepted calls during a six-
month wiretap of an international drug-trafficking
organization regarding shipments of drugs from
Mexico to the United States; and a telephone number
used by Suazo was identified as participating in
multiple coded conversations about importing drugs
from Mexico into the United States.
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• On August 8, 2016, a source of information (SOI-1)
identified "Jevito" as a high-level cocaine dealer
in Massachusetts.3 SOI-1 indicated that "Jevito"
was his/her supplier for bulk cocaine and provided
a telephone number that was later identified as
having once belonged to Suazo.
• On December 27, 2017, a second source of
information (SOI-2) identified "Jevito" as an
individual living in Chelsea, Massachusetts, who
had once supplied him/her with 200 grams of
fentanyl. SOI-2 gave law enforcement a photograph
of Suazo, identifying him as the man he/she knew as
"Jevito" and confirmed that the target telephone
number belonged to "Jevito."
• In March of 2018, another source of information
(SOI-4) confirmed that "Jevito" lived in Chelsea,
identified as "Jevito's" several telephone numbers
used by Suazo, and (when describing "Jevito")
accurately described Suazo's physical appearance.
SOI-4 also vouchsafed that "Jevito" could move
substantial quantities of cocaine and
heroin/fentanyl in the Boston area.
3Our numerical references to informants (e.g., "SOI-1") track
those employed by the district court.
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• In April of 2018, SOI-4 introduced "Jevito" to
another target of the investigation and brokered a
sale of a kilogram of fentanyl between the two.
"Jevito" and the second target conducted the
transaction in Chelsea on May 1, 2018, and "Jevito"
agreed to pay $50,000 for the drugs within the next
fifteen days. Telephone records and visual
surveillance corroborated SOI-4's narrative of the
transaction, and agents proceeded to recover a
kilogram of fentanyl.
• On July 17, 2018, another source of information
(SOI-3) identified "Jevito" as a leader in a drug-
trafficking organization based in Chelsea, which
was selling ten to fifteen kilograms of cocaine,
heroin, and fentanyl biweekly. Although SOI-3 had
not spoken to "Jevito" for roughly seven months,
SOI-3 had known "Jevito" for most of his/her life
and "Jevito" (he/she said) had been dealing drugs
for approximately twenty years.
• In the same time frame, SOI-3 identified a Chelsea
address associated with "Jevito," which cell phone
data later confirmed was an address where Suazo had
been.
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• Telephone records and pen register data reviewed by
government agents prior to the wiretap application
showed that the telephone number believed to be
associated with Suazo had been used to contact
several suspected drug dealers over a substantial
period (up to July 20, 2018).
To be sure, the bits and pieces of information garnered
by the government do not comprise a seamless narrative. Moreover,
the defendant notes a number of small inconsistencies in the
government's proffer. But seamless narratives are not the stuff
of wiretap applications, and to hold that these relatively small
inconsistencies undermine the district court's probable cause
determination would require us to overlook the forest for the
trees. Taken in the aggregate, the information contained in the
wiretap application told a convincing tale of ongoing drug-
trafficking activity with Suazo front and center. The whole is
sometimes greater than the sum of the parts and — viewed with an
eye towards the ongoing conspiracy — the information was not stale.
It clearly established Suazo's long-term engagement in the
wholesale drug trade in and around Boston — an engagement that
persisted up until the weeks immediately preceding the wiretap
application. The facts adduced by the government were timely and
more than "minimally adequate," Gordon, 871 F.3d at 43, to support
probable cause for belief both that Suazo was continuing to engage
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in the drug trade and that electronic monitoring would advance the
investigation of his nefarious activities.
2
This brings us to the defendant's contention that the
government failed to establish necessity for the wiretap. We
approach this contention mindful that "wiretapping is to be
distinctly the exception — not the rule." United States v.
Hoffman, 832 F.2d 1299, 1307 (1st Cir. 1987).
Title III's necessity requirement is designed to ensure
that the government makes a good-faith effort to exhaust other,
less intrusive investigative means before seeking to employ a
wiretap. See Gordon, 871 F.3d at 45. The government, though,
must not be held to an unrealistic standard: its explanation of
investigative avenues taken and those left unexplored "must be
viewed through the lens of what is pragmatic and achievable in the
real world." Id.; see United States v. Uribe, 890 F.2d 554, 556
(1st Cir. 1989) (noting need for "practical, commonsense
approach"). When all is said and done, an adequate showing of
necessity "should demonstrate that the government has made a
reasonable, good faith effort to run the gamut of normal
investigative procedures before resorting to means so intrusive as
electronic interception of phone calls." Gordon, 871 F.3d at 46
(quoting United States v. Martinez, 452 F.3d 1, 4 (1st Cir. 2006)).
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To carry this burden, the government is "not required
to show that other investigatory methods have been completely
unsuccessful." United States v. Rivera-Rosario, 300 F.3d 1, 19
(1st Cir. 2002). By the same token, the government need not either
"run outlandish risks or [] exhaust every conceivable alternative
before resorting to electronic surveillance." Id.; see Santana,
342 F.3d at 65. Given these parameters, it is readily apparent
that the necessity analysis demands a "context-specific" focus.
Gordon, 871 F.3d at 46.
This context-specific focus is especially apt where, as
here, an investigation centers on a sprawling drug-trafficking
network. We have noted before that "drug trafficking is inherently
difficult to detect and presents formidable problems in pinning
down the participants and defining their roles." United States v.
Santana-Dones, 920 F.3d 70, 76 (1st Cir. 2019) (quoting United
States v. David, 940 F.2d 722, 728 (1st Cir. 1991)). As a result,
"investigative personnel must be accorded some latitude in
choosing their approaches." Id.Moving from general principles to the specific
circumstances of this case, the defendant first suggests that the
government's investigative goals were overly broad and
impermissibly vague.4 At first blush, the goals of the
4 The government's wiretap application stated that the
overarching goal of the investigation was "establishing the full
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investigation appear to be in step with investigative goals that
we have approved in the past. See, e.g., Santana-Dones, 920 F.3d
at 78 (approving goals including "discovering the sources,
delivery means, storage locations, and distribution methods for
the narcotics; locating resources used to finance the trafficking;
and determining how the conspiracy invested and laundered their
drug proceeds"); United States v. Villarman-Oviedo, 325 F.3d 1, 10
(1st Cir. 2003) (approving wiretap authorization when
investigative goals involved "uncovering the full scope of the
potential crimes under investigation, as well as the identities of
those responsible for the unlawful manufacture, possession, sale
and distribution of narcotics in Puerto Rico" and "obtaining
evidence of the totality of offenses in which the targets of the
investigation were involved"). The district court did not speak
to this point, and we need not address it here: in the court
below, the defendant suggested that the goals of the investigation
were too broad and too vague only in a footnote in his memorandum
scope and nature of the criminal activities of [Suazo and the other
targets] and others yet unknown and their criminal associates."
The government then gave content and texture to this general goal
by enumerating a series of more specific ones, including
identifying suppliers; identifying redistributors and other
downstream associates; identifying individuals who were assisting
the targets in collecting and laundering drug proceeds;
identifying locations used in furtherance of the targets' drug-
trafficking activities; determining sources of illicit financing
and the disposition of drug-trafficking proceeds; and illuminating
drug-trafficking methods.
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in support of his motion to suppress. Given this glancing
reference, unaccompanied by any developed argumentation, we deem
this claim waived. See Teamsters Union, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is
settled in this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal.").
The defendant's next line of argument is that a wiretap
was not necessary because, after the May 1 transaction, the
government "had already achieved one of the goals of the
investigation — identifying an individual supplying drugs to
Suazo." This argument takes too myopic a view of the necessity
requirement. Although the government may have had enough
information to indict and convict Suazo and one of his suppliers
after it learned of the May 1 transaction, the government had ample
reason to believe that there were more foxes in the henhouse. The
government is not required to abjure wiretapping and terminate an
investigation once it has satisfied a limited subset of its
investigative goals. See Santana-Dones, 920 F.3d at 77 (explaining
that the necessity inquiry "does not hinge on whether it already
has garnered enough goods to pursue criminal prosecution").
Indeed, the defendant concedes that there is "no obligation to
arrest an individual as soon as probable cause to arrest ripens."
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Here, moreover, the government explained that the
supplier in the May 1 transaction, which had been brokered by SOI-
4, was not one of Suazo's regular suppliers. Consequently, the
transaction shed little light either on Suazo's overall operations
or on his working network of drug suppliers. Arresting Suazo at
that juncture would likely have driven his associates underground.
So viewed, we think that the government sufficiently explained why
its investigation should not have been concluded following the May
1 transaction.
Relatedly, the defendant argues that the government was
required to try a laundry list of less intrusive investigative
methods before seeking a wiretap. As to each of these proposed
methods, the government offered specific and reasonable
explanations why that method (alone or in combination with others)
would have been unproductive, too dangerous, or insufficient to
achieve its investigative goals.5 What is more, the government
made a cogent showing that less intrusive investigative techniques
— such as direct surveillance by law enforcement, use of
5 An example may be helpful. The defendant complains that
investigators "did not even attempt to use surveillance cameras"
or execute search warrants. The government, however, plausibly
explained — in its wiretap application — why surveillance cameras
would have been of limited utility in gathering information about
the operation of the conspiracy. So, too, it paused and explained
that executing search warrants for locations associated with Suazo
would have been "premature" and likely to alert other members of
the conspiracy to the ongoing investigation.
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confidential informants, interviews with cooperating defendants in
other cases, and review of phone and text records retrieved from
providers — had taken the investigation about as far as it could
go.
In sum, the wiretap application contained reasonable
investigative goals, and the government plausibly explained why
traditional means of investigation, including those it had already
attempted, were insufficient to achieve the stated goals of the
investigation. On this record, the district court's finding that
the government's showing of necessity was adequate easily passes
muster.
B
The defendant's next claim of error implicates the jury-
selection process. He asserts that the district court abused its
discretion in striking for cause a juror who stated during voir
dire that she was a proponent of "defunding the police." The
government defends the district court's ruling and argues, in any
event, that the defendant suffered no prejudice. See, e.g., United
States v. Brooks, 175 F.3d 605, 606 (8th Cir. 1999) ("Even if the
district court abused its discretion in striking [two prospective
jurors] for cause, [the defendants] would not be entitled to a
reversal of their convictions because they failed to show the
jurors who tried their case were biased against them.").
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We review a district court's decision to strike a
potential juror for abuse of discretion. United States v. Sampson,
486 F.3d 13, 39 (1st Cir. 2007). Because the district court has
the benefit of observing and interacting with potential jurors, we
cede substantial deference to that court in assessing potential
juror bias. See United States v. Gonzalez-Soberal, 109 F.3d 64,
69 (1st Cir. 1997). "There are few aspects of a jury trial where
we would be less inclined to disturb a trial judge's exercise of
discretion, absent clear abuse, than in ruling on challenges for
cause in the empanelling of a jury." United States v. McCarthy,
961 F.2d 972, 976 (1st Cir. 1992).
The very "purpose of a jury is to guard against the
exercise of arbitrary power." Taylor v. Louisiana, 419 U.S. 522,
530 (1975). That purpose is best served when the jury reflects a
representative cross-section of the community, free from
preconceived viewpoints. See id. It follows that fairness is the
sine qua non for jury service: the jury must be "capable and
willing to decide the case solely on the evidence before it."
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)
(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). The voir
dire process helps to control for this concern "by exposing
possible biases, both known and unknown, on the part of potential
jurors." Id. "Demonstrated bias in the responses to questions on
voir dire may result in a juror being excused for cause." Id.- 18 -
The defendant contends that the district court
improperly struck a juror for cause due to the juror's political
belief about "defunding the police." In the defendant's view, the
juror's comment reflected merely a principled skepticism about
police testimony — not bias. This contention, though, reads the
record through rose-colored glasses.
The critical voir dire exchange took place after the
juror had expressed her sentiments about "defunding the police":
THE COURT: I need to push you a little bit
more on the answer, whether or not you have
reservations about your ability to listen
fairly to law enforcement testimony or you're
confident you just can listen to it fairly and
can make an independent evaluation based on
that testimony.
THE JUROR: I guess I do have slight
reservations. I can't say for sure. Sorry.
Following this response, the court ruled that because the juror
"had expressed a reservation about her ability to be fair," it
would be necessary to excuse her for cause.
When a juror cannot assure the court and the parties
that she will be fair, that juror should not be allowed to serve.
Here, the juror in question expressed doubt about her ability to
be fair. See, e.g., McDonough Power Equip., 464 U.S. at 554;
Sampson v. United States, 724 F.3d 150, 165 (1st Cir. 2013). It
was, therefore, comfortably within the encincture of the district
court's discretion to strike the juror for cause.
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Contrary to the defendant's importunings, the fact that
the juror described her reservations as "slight" does not change
the calculus in any material way. Fairness is so central to the
jury system that a juror's sincerely expressed doubts about her
ability to be fair, even if slight, must be taken seriously.
Except, perhaps, in the most extraordinary circumstances — not
present here — doubts about fairness will always tilt in favor of
disqualification.
In an effort to blunt the force of this reasoning, the
defendant suggests that the district court should have drilled
down more deeply. He also suggests that the court was more
searching when questioning other members of the venire. Even if
such considerations are relevant to the question of whether the
court abused its discretion in removing for cause a juror who had
expressed reservations about her ability to be fair (a matter on
which we take no view), they are of no help to the defendant in
this case. The court's questioning of the juror was sufficient to
raise a legitimate fairness concern,6 and the record lends no
6 The district court's explanation, given in connection with
defense counsel's objection to the removal of the juror for cause,
is informative:
There are plenty of jurors that expressed
various reservations about the legal system,
their views about people that use drugs, their
views about drug dealers. And any of those
people, if they said they could be fair, they
were kept on the jury irrespective of what
those views were. [This juror, though,]
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credible support to the intimation that the district court applied
some unique standard to the juror in question. Our review of the
jury-empanelment transcript confirms that the court treated
prospective jurors even-handedly in all relevant respects.
That ends this aspect of the matter. There is simply no
principled way — on this record — to hold that the district court
abused its wide discretion in removing the juror for cause.7 We
therefore reject the defendant's second claim of error.
C
The defendant's third claim is a claim of evidentiary
error: he submits that the district court abused its discretion
in admitting expert testimony from a DEA group supervisor, Mark
Tully. Although Agent Tully had not himself participated in the
investigation, the government introduced his testimony concerning
the meaning of coded language used in recorded calls between Suazo
and the defendant.
Prior to trial, the defendant moved in limine to block
Agent Tully from giving testimony. The district court denied his
motion, ruling that it would admit the testimony as long as the
government laid a proper foundation. At trial, that foundation
expressed reservations about her ability to be
fair.
7 Because we find no error, we need not consider the
government's back-up argument that the striking of the juror caused
the defendant no prejudice.
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was laid. And when the government presented Agent Tully as an
expert, the defendant's counsel stated that he had "no objection."
In this venue, the defendant suggests that the district
court gave unconditional approval to Agent Tully's expert
testimony and, thus, he did not need to object at trial. We do
not agree. Taken in context, we think that the district court's
order was conditional thus requiring the defendant to raise any
specific objections that he might have during Agent Tully's
testimony. Even so, the defendant did not object to Agent Tully's
qualification as an expert during his testimony.
Ordinarily, a defendant must object to particular
evidence at trial in order to preserve his appellate rights. See,
e.g., United States v. Noah, 130 F.3d 490, 496 (1st Cir. 1997).
But when a defendant raises such an objection before trial by a
motion in limine and the district court's rejection of the
defendant's position is unconditional, the defendant's objection
may be deemed preserved even if not raised again at trial. See
United States v. Grullon, 996 F.3d 21, 30 (1st Cir. 2021); United
States v. Almeida, 748 F.3d 41, 50 (1st Cir. 2014). Here, however
— as we have explained — the ruling was conditional, and no
contemporaneous objection was interposed during Agent Tully's
testimony. It follows that the arguments made by the defendant on
appeal with respect to Agent Tully's testimony engender only plain
error review. See Almeida, 748 F.3d at 50. "Review for plain
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error entails four showings: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
With this preface, we turn to the defendant's claim of
error. It rests on two grounds. First, he says that Agent Tully
should not have been allowed to testify as an expert because his
methodology was unreliable. Second, he says that Agent Tully
should not have been allowed to testify as an expert because the
communications that he purposed to interpret consisted of "plain,
uncoded language" and, thus, expert testimony was unnecessary.
Neither ground withstands scrutiny.
As a starting point, we note that the defendant does not
challenge Agent Tully's qualifications as an expert, his knowledge
of the arcane world of drug distribution, or his wide experience
in drug-trafficking investigations. Nor does he gainsay our
repeated approval of the use of expert testimony, given by veterans
of narcotics investigations, to explain the meaning of "coded"
language in drug-related communications. See, e.g., United States
v. Henry, 848 F.3d 1, 12 (1st Cir. 2017); United States v.
Santiago, 566 F.3d 65, 69 (1st Cir. 2009); Hoffman, 832 F.2d at
1310. Such testimony is often helpful because in "a rough-and-
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ready field" such as drug distribution, "experience is likely the
best teacher." Hoffman, 832 F.2d at 1310 (approving expert
qualification of veteran DEA officer on drug-trafficking codes and
jargon).
The defendant nonetheless argues that Agent Tully's
methodology was flawed. That methodology was unreliable, he says,
because it was "self-validating": as he envisions it, Agent Tully
reverse-engineered his testimony to fit the facts revealed at
subsequent stages of the conspiracy. Stripped of rhetorical
flourishes, this argument is composed of little more than smoke
and mirrors. We explain briefly.
When interpreting recorded conversations, Agent Tully
frequently would be able to narrow coded language to a range of
possible meanings. He would then determine the precise meaning of
the coded language based, in part, on what drugs had later been
seized. That was not reverse-engineering but, rather, a common
sense way of isolating the precise meaning of a coded term.
Agent Tully gave the district court a helpful
illustration of how his methodology worked. He referred to an
earlier investigation in which suspected co-conspirators discussed
"palomas" and "palomitas," each consisting of "four white doves."
Only after the contraband (four-ounce packages of cocaine) had
been seized could the precise meaning of "paloma" and "white dove"
be ascertained.
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The case at hand, Agent Tully indicated, was analogous.
Kilos of "white stuff," mentioned in the recorded calls, might
refer either to cocaine or fentanyl (both drugs in which Suazo
allegedly trafficked). Without further information — such as was
provided by an actual seizure — Agent Tully could not pinpoint
which drug was being discussed. When cocaine was seized, the
meaning became evident.
Viewed against this backdrop, the defendant's objection
crumples. Context often informs interpretive judgments, and there
is nothing problematic about an expert's methodology aligning with
common sense. Mindful of the wide variety of matters on which
expert testimony may be useful, Federal Rule of Evidence 702
demands that the inquiry into an expert's methodology must be
tailored to fit the circumstances of each particular case. See
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594 (1993)
("The inquiry envisioned by Rule 702 is, we emphasize, a flexible
one."). Especially outside of scientific fields, factors bearing
on the reliability of an expert's methodology will vary. See Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (noting that
because there are "many different kinds of experts, and many
different kinds of expertise," the factors relevant to the
reliability inquiry will vary). The methodology used by Agent
Tully was not beyond the pale. In point of fact, that methodology
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is strikingly similar to methodologies that we have deemed reliable
in other cases. See, e.g., Henry, 848 F.3d at 12.
In a variation on this theme, the defendant argues that
the subject matter of Agent Tully's testimony was such that it did
not allow for any expert testimony at all. As was true of his
"methodology" argument, this dog will not hunt.
We agree, of course, that a party should not be allowed
to confer the imprimatur of expertise upon interpretations of
evidence that jurors need no assistance in understanding. See
United States v. Valdivia, 680 F.3d 33, 51 (1st Cir. 2012)
(explaining that when "expert testimony on a subject is 'well
within the bounds of a jury's ordinary experience,' the risk of
unfair prejudice outweighing probative value is not improbable"
(quoting United States v. Montas, 41 F.3d 775, 784 (1st Cir.
1994))). In this case, though, it was neither clear nor obvious
error for the district court to conclude that the decisional scales
tipped in favor of allowing expert testimony.
To begin, it was neither clear nor obvious error for the
district court to find that expert testimony would be helpful to
the jury in understanding the jargon used by Suazo and his
confederates. For instance, when Suazo and the defendant discussed
"blue ones" and "yellow ones," the Agent's expert testimony
rendered those terms intelligible as, respectively, 30-milligram
Percocet pills and 10-milligram Percocet pills. His expert
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knowledge as to the color and strength of pills peddled by drug
dealers in the New England market was helpful to the jury in
understanding the recorded conversations.
We think, as well, that Agent Tully's expertise was
helpful to the jury in explaining the nature of the transactions
to which the coded terms related. See Henry, 848 F.3d at 12
(upholding officer's expert testimony not directly related
"obscure jargon" admissible because officer "drew upon his
expertise in explaining the relevance of the communications in the
drug trade"); United States v. Monell, 801 F.3d 34, 45 (1st Cir.
2015) (permitting expert testimony related to drug-dealer
methods). For example, Agent Tully was able to assist the jury in
understanding the economics behind an intercepted discussion of
the relative advantages of "pure" cocaine versus "cut" cocaine.
Because a pure product can be cut without degrading its potency
below marketable quality, more profit can be reaped from increasing
marketable volume through the use of adulterants. In contrast, a
"cut" product yields profit mainly through price arbitrage between
locations — "getting it here and selling it." And, relatedly,
Agent Tully was able to explain how discussions of price tied into
these distinctions.
Last — but surely not least — the district court took
appropriate steps to guard against any unfair prejudice. For one
thing, it gave considerable latitude to the defendant in cross-
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examining Agent Tully about alternate meanings of various terms.
For another thing, it was careful to instruct the jury to weigh
the evidence independently.8 These safeguards were sufficient —
in the circumstances at hand — to mitigate any risk of unfair
prejudice. See Henry, 848 F.3d at 12; Rosado-Pérez, 605 F.3d at
56.
Nothing more need be said about Agent Tully's testimony.
We conclude that there was no plain error in the district court's
challenged rulings concerning this testimony. Accordingly, we
reject the defendant's third claim of error.
D
This leaves the defendant's claim that the district
court erred in permitting the government to introduce evidence of
four intercepted calls between Suazo and the defendant. In those
calls, the two men discussed, among other things, potential drug
transactions apart from the one that led directly to the
defendant's arrest.
8Pertinently, the district court instructed the jury that it
was free to "accept or reject [the expert's] testimony in whole or
in part." The court also instructed the jury that "[i]n weighing
the testimony, [it] should consider the factors that generally
bear upon the credibility of a witness as well as the expert
witness's education and experience, the soundness of the reasons
given for the opinion and all other evidence in the case."
Finally, the court directed that the jury alone should "decide how
much of the expert witness's testimony to believe, and how much
weight it should be given."
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The question is one of timing. The indictment charged
a compressed conspiracy beginning on September 17, 2018 and ending
on September 18 of the same year. The four challenged calls
occurred on earlier dates (August 12, August 20, August 29,
September 11). During pretrial proceedings, the defendant moved
in limine to exclude evidence of these calls, contending that
because they took place before the opening date of the charged
conspiracy and some involved different drugs, they were "prior bad
acts" evidence, likely to confuse the jury and cause unfair
prejudice. See Fed. R. Evid. 404(b); see also Fed. R. Evid. 403.
The district court denied the defendant's motion,
holding that the four challenged calls did not reflect "separate
acts, but rather acts intrinsic to the charged conspiracy" and,
thus, were admissible without regard to Rule 404(b). In the
court's view, the conversations — which dealt with the "planning
other similar narcotics transactions" — furnished "evidence of how
the [d]efendant and his co-conspirator entered into an overarching
conspiracy" and were admissible to "show the course of dealings
between co-conspirators." The district court held, in the
alternative, that even if the four calls were considered "prior
bad acts" evidence within the ambit of Rule 404(b), they
nonetheless could be admissible to "explain the background,
formation, and development of the illegal relationship." (quoting
United States v. Green, 698 F.3d 48, 55 (1st Cir. 2012)). The
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court added that the probative value of the evidence was not
substantially outweighed by any cognizable danger of unfair
prejudice.
The defendant renewed this objection at trial, but the
district court held firm. The evidence was admitted, and the
defendant presses his claim of error on appeal. Our review is for
abuse of discretion. See United States v. Simon, 12 F.4th 1, 40-
42 (1st Cir. 2021) (Rule 403); United States v. Robles-Alvarez,
874 F.3d 46, 50 (1st Cir. 2017) (Rule 404(b)).
Under Rule 404(b), evidence of other acts is not
admissible to prove a defendant's character or propensity, but
such evidence may be admitted if it has "special relevance."
Henry, 848 F.3d at 8. Evidence may have special relevance if it
is offered to show, say, "motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident." Fed. R. Evid. 404(b)(2). Even if specially
relevant, though, such evidence is inadmissible if its probative
value is substantially outweighed by its unfairly prejudicial
effect. See Fed. R. Evid. 403. And when evidence is intrinsic to
elements of a charged offense, Rule 404(b) is simply not
implicated. See, e.g., Robles-Alvarez, 874 F.3d at 50; Villarman-
Oviedo, 325 F.3d at 11.
Here, the district court, in effect, used a belt and
suspenders. The court prudently made alternative holdings. It
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held that the challenged calls were intrinsic to the conspiracy
and that — even if they were not — they were admissible under Rule
404(b). The defendant contests both rationales.
To begin, the defendant contends that the calls were not
intrinsic to the charged conspiracy because they transpired
several weeks before the conspiracy's opening date. Moreover,
certain of the calls focused on drugs and transactions other than
the ones involved in the charged conspiracy. This contention is
not without some bite, and we think it arguable that some of the
calls were not intrinsic to the charged conspiracy. But we need
not decide this question: rather, we assume, albeit without
deciding, that the four earlier calls were not intrinsic to the
charged conspiracy and that, therefore, Rule 404(b) applies.
Even on this defendant-friendly assumption, it was not
an abuse of discretion to admit the four recorded conversations
into evidence. In our judgment, the district court did not abuse
its discretion in determining that all the calls had special
relevance because they were harbingers of what was to come: they
were probative of the development of the charged conspiracy and of
the nature of the working relationship between Suazo and the
defendant. See United States v. Green, 698 F.3d 48, 55 (1st Cir.
2012) (holding that "in a conspiracy case, 'evidence of other bad
acts . . . can be admitted to explain the background, formation,
and development of the illegal relationship, and, more
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specifically, to help the jury understand the basis for the co-
conspirators' relationship of mutual trust'" (alteration in
original) (quoting United States v. Escobar-de Jesús, 187 F.3d
148, 169 (1st Cir. 1999))).
The defendant demurs, insisting that even if the calls
had special relevance, their admission created an intolerable risk
of unfair prejudice. Admitting them, he muses, likely lured the
jury into convicting him based on general speculation that he was
a drug dealer.
The district court rejected this plaint, and so do we.
Particularly in light of the revelatory nature of the calls and
the other compelling evidence of the defendant's guilt, the
district court did not abuse its discretion in determining that
the probative value of the calls was not substantially outweighed
by any unfairly prejudicial effect. See Green, 698 F.3d at 56;
Escobar-de Jesús, 187 F.3d at 169-70; see also Fed. R. Evid. 403.
We have made it luminously clear that "[o]nly rarely — and in
extraordinarily compelling circumstances — will we, from the vista
of a cold appellate record, reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value and
unfair effect." United States v. Mehanna, 735 F.3d 32, 59 (1st
Cir. 2013) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331,
1340 (1st Cir. 1988)). This is a far cry from that rare case.
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III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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