United States v. Henry , 848 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2487
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER HENRY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Barbadoro,* District Judge.
Christine DeMaso, Assistant Federal Public Defender, with
whom the Federal Defender Office was on brief, for Appellant.
Vijay Shanker, Attorney, United States Department of Justice,
Criminal Division, Appellate Section, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, Glenn A. Mackinlay, Assistant United States Attorney,
and John Albert Wortmann, Jr., Assistant United States Attorney,
were on brief, for Appellee.
January 18, 2017
* Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. Christopher Henry was
convicted after a trial of possession of crack cocaine with intent
to distribute. He claims on appeal that the district court
erroneously failed to suppress text messages the police obtained
from his cell phone pursuant to a search warrant. He also faults
the district court for admitting evidence of his prior drug
conviction, allowing a police officer to provide inadmissible
expert testimony, and failing to instruct the jury on the lesser
included offense of simple possession. We affirm.
I. BACKGROUND
A. The Crimes
May 29, 2014, was the three-year anniversary of the death
of a Boston-area gang member, and the police were informed that
his family would be holding a memorial gathering at their home
that night. Concerned that the event might spark violence, two
police officers were dispatched to patrol the neighborhood in a
car that was unmarked but that could be identified as a police
vehicle based on its make, model, and accessories. As the officers
drove toward the address where the gathering was expected, they
saw two men standing on the sidewalk. When they drove past, one
of the men, later identified as Henry, appeared shocked.
Suspicious, the officers stopped and reversed toward the men. Upon
seeing the car reverse, Henry and the other man took off running.
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The officers gave chase, one by foot and one by car.
Henry momentarily eluded the officer on foot by jumping over a
fence and running through a schoolyard marked with "no trespassing"
signs. The officer then glimpsed Henry running into the yard of
a nearby home. He followed Henry into the yard and saw him facing
another fence, topped with barbed wire. The officer identified
himself, ordered Henry to the ground, frisked him, and arrested
him for trespassing. A gun was subsequently found in the driveway
of the home on the other side of the fence from where Henry was
arrested.
The second man, later identified as Dwayne Leaston-
Brown, ran around the side of the school building and disappeared
from view. He was eventually found sitting on the steps of the
same home where the gun was found. A second gun, bearing Leaston-
Brown's fingerprints, was discovered next to the school building
along the path he followed as he fled from the police.
Henry was taken to the police station following his
arrest where he was booked and thoroughly searched. A search of
his pants produced a cell phone and $830 in cash, denominated
mostly in $20 bills. Underneath his pants, Henry was wearing a
pair of basketball shorts. A search of the shorts produced 21
individually packaged rocks of crack cocaine and two loose rocks,
amounting to approximately three grams.
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The police later applied for and received a warrant to
search Henry's cell phone. The search yielded coded text messages
that appeared to reference drug sales. Henry was ultimately
indicted for possession of crack cocaine with intent to distribute
based on the cocaine the police found during the search at the
police station, and possession of a firearm by a convicted felon
based on the gun the police discovered in the driveway of the home
across the fence from where he was arrested.
B. Proceedings Below
Henry moved to suppress the text messages obtained from
the cell phone search on the ground that the search warrant
application failed to establish probable cause. In rejecting
Henry's motion, the district court relied on the quantity and
packaging of the drugs and the large amount of cash Henry was
carrying, the discovery of the gun nearby, and the fact that Henry
was carrying the cell phone at the time of his arrest. The court
also gave weight to the affiant's training and experience, which
led him to conclude that cell phones are critical tools of the
modern drug trade. Alternatively, the court determined that the
text messages should not be suppressed even if the search was not
supported by probable cause because the police relied in good faith
on the search warrant when they conducted the search.
The government filed a motion in limine prior to trial
asking the court to admit evidence of Henry's 2012 state court
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conviction for possession of crack cocaine with intent to
distribute. Henry challenged the government's motion by arguing
that evidence of his past criminal conduct was inadmissible
propensity evidence that should be excluded under Rules 404(b) and
403 of the Federal Rules of Evidence. In rejecting Henry's
arguments, the district court concluded that Henry's prior
criminal conduct was admissible under Rule 404(b) to prove intent
and modus operandi. The court also refused to exclude the prior
conviction evidence pursuant to Rule 403 because its probative
value was not substantially outweighed by the danger of unfair
prejudice. When the prior conviction evidence was later admitted
at trial, the court instructed the jury that it could consider the
evidence to the extent that it was relevant in proving intent or
modus operandi, but the fact that Henry may have committed a prior
crime did not prove that he committed either of the charged crimes.
The court also rejected Henry's effort at trial to block
the government from offering certain expert testimony by a police
officer. The officer testified that he had experience
investigating drug trafficking as a member of the Drug Control
Unit of the Boston Police Department, where he had participated in
over 100 drug buys, listened to wiretapped conversations, and
instructed other officers on drug trade practices. During the
trial, he testified that texts on Henry's cell phone containing
terminology such as "flav," "dub," "hard," "plays," "bus[t]ing a
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move," and "7 to a 14 lg" referred to drug transactions. These
opinions were inadmissible, Henry argued, because they were
speculative or within the ken of the average juror. The officer
also opined that, "looking at everything, the large amount of
money, looking at the booking sheet without any employment,
apparently, the large amount of drugs, the way that they're
packaged, all similar in size and packaging, . . . putting it all
together, in [his] opinion, these drugs were packaged for sale."
Henry claimed that this opinion should be excluded pursuant to
Rule 704(b) of the Federal Rules of Evidence as an impermissible
opinion on intent.
Henry's primary theory of defense was that the officers
lied in claiming that they had found drugs on him during the
search. He also sent mixed signals as to whether he planned to
challenge the government's contention that he possessed the drugs
with an intent to distribute. Prior to trial, he informed the
court that he would be contesting possession but not intent. He
stated in his opening statement that "[i]t may very well be that
the packaging and the amount of cocaine in those bags was intended
for distribution, but what you're going to learn is that Henry
didn't possess it." He also submitted a proposed jury instruction
prior to trial, however, that asked the court to instruct the jury
on the lesser included offense of simple possession.
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The day before closing arguments, Henry renewed his
request for a simple possession instruction. Although the judge
agreed to consider the issue further, she told Henry that he should
assume that she would not give his proposed instruction. The next
morning, the judge informed counsel that she had looked into case
law and determined that it would not be rational for a jury to
find simple possession. On that basis, she told counsel that she
would not give a lesser included instruction. She also stated,
"Counsel, your objection as to that is noted for the record."
Before bringing in the jury, the judge again stated, "I'm not going
to give the lesser included instruction, and I addressed that on
the record."
The jury instructions were split into two parts: the
jury was given preliminary instructions, each party gave its
closing argument, and then the jury was given the remaining
instructions, which did not include a charge on simple possession.
Following this last set of instructions, the judge met with counsel
at sidebar. The government stated that it did not object to the
charge, and Henry's counsel declared that there was "[n]othing
from . . . the defense."
The jury convicted Henry of the drug charge, but
acquitted him of the firearm charge. This appeal followed.
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II. ANALYSIS
Henry challenges his conviction by claiming that (1) the
warrant authorizing the search of his cell phone was not supported
by probable cause; (2) the court erred in admitting evidence of
his prior drug conviction; (3) a police expert was permitted to
offer inadmissible opinion testimony; and (4) Henry was entitled
to a jury instruction on the lesser included offense of simple
possession. We address each argument in turn.
A. The Search of Henry's Cell Phone
Henry first challenges the denial of his motion to
suppress the evidence obtained from his cell phone. Although his
opening brief argues that the warrant to search his cell phone was
not supported by probable cause, it inexplicably fails to address
the district court's alternative basis for denying the suppression
motion: that, even if probable cause was lacking, the good-faith
exception to the exclusionary rule applied. See United States v.
Leon, 468 U.S. 897, 920–23 (1984). By failing to address the good-
faith exception in his opening brief, Henry waived any argument
that it is inapplicable in his case. See United States v. Casey,
825 F.3d 1, 12 (1st Cir. 2016) ("[A]rguments raised for the first
time in an appellate reply brief [are] ordinarily deemed waived.
. . ."); United States v. Stevens, 380 F.3d 1021, 1024–25 (7th
Cir. 2004) (concluding that defendant waived argument that good-
faith exception did not apply where defendant's opening brief
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argued that affidavit in search warrant application failed to
establish probable cause but "failed to attack the court's
alternative holding that the evidence seized was admissible under
the good-faith exception to the exclusionary rule"); see also
United States v. Fox, 363 F. App'x 375, 376-77 (6th Cir. 2010)
(unpublished) (same).
Henry concedes that his failure to address the good-
faith exception in his opening brief waived that argument, but
implores us to excuse his waiver. We decline to do so. No
extraordinary circumstance explains Henry's failure to address
this issue. Instead, this is a garden-variety failure to raise an
argument in an opening brief, and excusing Henry's failure in these
circumstances would turn our venerable raise-or-waive rule into a
toothless tiger.
Henry's failure to preserve for our review any challenge
to the district court's alternative basis for denying the motion
to suppress leaves us no choice but to affirm. See Fox, 363 F.
App'x at 377 ("Since the district court's ruling on the good faith
exception sufficed to justify its denial of Fox's motion to
suppress, Fox's failure to appeal that aspect of the court's
decision means the denial of the motion still stands."); cf.
Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29–30
(1st Cir. 2015) (explaining that "[o]ur precedent is clear: we do
not consider arguments for reversing a decision of a district court
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when the argument is not raised in a party's opening brief" and
applying that rule where "the opening brief present[ed] no argument
at all challenging [the] express grounds upon which the district
court prominently relied in entering judgment"). Because we affirm
the denial of the motion to suppress solely on the basis of Henry's
waiver, we need not — and therefore do not — express any opinion
on whether the warrant was supported by probable cause or whether
the good-faith exception applies in this case.
B. Henry's Prior Drug Conviction
A proposal by the government to introduce evidence of a
defendant's prior criminal conduct is subject to a two-part test.
See United States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009).
"First, a court must ask whether the proffered evidence has a
'special' relevance, i.e., a non-propensity relevance." Id. Under
Rule 404(b), "[e]vidence of a crime . . . is not admissible to
prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character." Fed.
R. Evid. 404(b)(1). But such evidence "may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident." Fed. R. Evid. 404(b)(2). If prior crime
evidence has special relevance under Rule 404(b), the court must
move on to consider whether the evidence should nevertheless be
excluded under Rule 403. Hicks, 575 F.3d at 142. Rule 403 provides
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that "[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice." Fed. R. Evid. 403. We review the district court's
admission of a prior conviction under Rules 404(b) and 403 for an
abuse of discretion. See United States v. Gemma, 818 F.3d 23, 35
(1st Cir. 2016).
Henry claims that his prior drug conviction was relevant
only to prove that he had a propensity to sell drugs. Thus, he
argues that the evidence should have been excluded pursuant to
Rule 404(b). In the alternative, he contends that the court should
have excluded the evidence pursuant to Rule 403 because its
prejudicial effect substantially outweighed its probative value.
We find that the district court did not abuse its discretion in
admitting the prior conviction.
Rule 404(b)(2) specifically permits the admission of a
prior conviction to prove intent, and we have repeatedly upheld
the admission of prior drug dealing by a defendant to prove a
present intent to distribute. See, e.g., United States v. Manning,
79 F.3d 212, 217 (1st Cir. 1996) (finding no abuse of discretion
because "when charges of drug trafficking are involved, this
[C]ourt has often upheld the admission of evidence of prior
narcotics involvement to prove knowledge and intent. . . . The
evidence that Manning had previously sold cocaine makes it more
likely . . . that he intended to distribute the two bags of
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cocaine."); United States v. Nickens, 955 F.2d 112, 124–25 (1st
Cir. 1992) (collecting cases) ("[T]his circuit has repeatedly held
that a prior involvement with drugs is admissible to prove
knowledge and intent. . . . [T]he jury may have [permissibly]
inferred that persons who have distributed cocaine in California,
are more likely than those who have not, to want to import cocaine
from Ecuador."); United States v. Doe, 741 F.3d 217, 230 (1st Cir.
2013) (citing Manning and noting that prior drug sale "makes it
more likely" that defendant intended to sell drugs on later
occasion); see also, e.g., United States v. Robinson, 809 F.3d
991, 997 (8th Cir. 2016) (noting that prior conviction for drug
distribution is admissible under Rule 404(b) to show intent to
commit later charge of conspiracy to distribute drugs); United
States v. Lee, 573 F.3d 155, 166 (3d Cir. 2009) ("Lee's prior drug
trafficking conviction was properly admitted as evidence that Lee
intended to distribute any drugs in his possession.").
Henry attempts to distinguish these cases by noting that
his theory of defense centered on possession rather than intent.
A defendant's failure to argue lack of knowledge or intent,
however, does not "remove those issues from the case." United
States v. Pelletier, 666 F.3d 1, 6 (1st Cir. 2011) (quoting United
States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990)). The
burden of proving intent remained on the government, even though
Henry did not aggressively litigate the issue, and Henry's prior
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conviction had probative value in establishing this element of the
charged offense. Accordingly, the district court did not abuse
its discretion in ruling that the prior-conviction evidence
qualified under the intent exception to Rule 404(b).
We pause to note that this conclusion is compelled by
the combination of our deferential standard of review and our
precedent. The government appears to argue that evidence of a
prior drug distribution offense is always relevant under Rule
404(b) to show knowledge and intent in a prosecution for possession
of a controlled substance with intent to distribute. As the
concurring opinion explains, this across-the-board position seems
to overlook that, in many cases, impermissible propensity
reasoning lurks as one of the links in the logical chain of
relevance. Although we discern no abuse of discretion in this
case given our precedent, we encourage district court judges to
carefully consider the proponent's assertion of why a prior
conviction has special relevance and examine whether, in the
particular case-specific circumstances, the proponent is simply
attempting to disguise propensity evidence by artificially
affixing it with the label of a permitted Rule 404(b)(2) purpose.
Unlike Rule 404(b), which focuses exclusively on whether
prior bad act evidence has "special relevance," Rule 403 requires
a balancing of probative value and prejudicial effect. When
assessing the probative value of evidence under Rule 403, a court
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must consider both whether the evidence has been offered to prove
an issue that is in genuine dispute, and whether the evidentiary
point can be made with other evidence that does not present a risk
of unfair prejudice. See United States v. Ford, 839 F.3d 94, 109–
10 (1st Cir. 2016); United States v. Varoudakis, 233 F.3d 113,
122–24 (1st Cir. 2000). On the other side of the scale, similarity
between the defendant's prior criminal conduct and the charged
offense, which may support a finding of "special relevance" under
Rule 404(b), increases the risk that the jury will draw an improper
inference of propensity that unfairly prejudices the defendant's
case. Varoudakis, 233 F.3d at 123. In cases such as Henry's,
where a prior drug conviction is offered to prove an intent to
distribute drugs on a different occasion, the risk that the jury
will use the conviction to infer criminal propensity is especially
strong. Courts thus must be alert to this danger when they weigh
the prejudicial effect of evidence against its probative value.
In the present case, although Henry did not make the
absence of an intent to distribute the centerpiece of his defense,
he did raise the issue by seeking a lesser included offense
instruction for simple possession. Under these circumstances, the
government was entitled to marshal all of its evidence on the issue
of intent, including evidence of Henry's prior criminal
conviction, in an effort to demonstrate that the evidence on that
element was sufficient to prevent Henry from obtaining a jury
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instruction on a reduced charge. Moreover, although the similarity
between Henry's prior drug conviction and the charged drug crime
presents a risk that the jury might draw an impermissible inference
of propensity, the court addressed that risk with a limiting
instruction. Given this instruction, the sufficiency of which
Henry did not challenge, we cannot say that the district court
abused its discretion in rejecting Henry's claim that the
prejudicial effect of the prior crime evidence substantially
outweighed its probative value. In short, this is not the rare
case where we are prepared to second-guess the district court's
Rule 403 analysis.
Having determined that the district court properly
admitted evidence of Henry's past criminal conduct to prove intent,
we need not determine whether the same evidence could have been
admitted independently to prove modus operandi. Instead, the real
issue is whether the district court committed reversible error in
instructing the jury that evidence that was properly admitted for
one purpose could also be considered for a different, arguably
inadmissible, purpose. Errors of this sort are harmless if it is
"highly probable that the error did not influence the verdict."
Hicks, 575 F.3d at 143 (quoting United States v. Roberson, 459
F.3d 39, 49 (1st Cir. 2006)).
Here, the record contains ample evidence to support the
verdict. Moreover, as we have explained, the court permissibly
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admitted Henry's prior conviction for a different purpose and
instructed the jury that it could not be used to infer criminal
propensity. Nothing in the facts or argument at trial pointed to
a finding of modus operandi as a pathway to a guilty verdict that
was not far more likely to have been provided by a finding of
intent. Under these circumstances, if the court erred in
instructing the jury that it could also consider Henry's prior
conviction as evidence of modus operandi, the error was harmless.
Cf. United States v. Levy-Cordero, 67 F.3d 1002, 1011 (1st Cir.
1995) (erroneous instruction that jury could consider prior bad
act evidence to show intent or knowledge was harmless where
evidence was admissible to show consciousness of guilt).
C. Expert Witness Testimony
Henry complains that the district court improperly
admitted expert testimony from a police officer. We review the
court's rulings on this issue for abuse of discretion. See United
States v. Jordan, 813 F.3d 442, 445 (1st Cir. 2016), cert. denied,
136 S. Ct. 2528 (2016); United States v. Schneiderhan, 404 F.3d
73, 81 (1st Cir. 2005).
"[W]e have long held that government witnesses with
experience in drug investigations may explain the drug trade and
translate coded language for juries, either through lay or, if
qualified, expert testimony." United States v. Rosado-Pérez, 605
F.3d 48, 56 (1st Cir. 2010). "This [C]ourt has repeatedly found
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no abuse of discretion in the admission of . . . expert testimony
to explain the typical methods of drug dealers." United States v.
Monell, 801 F.3d 34, 45 (1st Cir. 2015). This is because police
officers' interpretations of the jargon used within criminal
circles may "give the jury the benefit of an independent body of
specialized knowledge." United States v. Albertelli, 687 F.3d
439, 446 (1st Cir. 2012). Officers may also interpret the slang
terminology used by drug dealers. United States v. Santiago, 566
F.3d 65, 69 (1st Cir. 2009).
Notwithstanding this formidable body of precedent, Henry
presents two challenges to the police expert's testimony. First,
he argues that the court violated Rule 704(b) of the Federal Rules
of Evidence by allowing the expert to express an opinion as to
whether Henry possessed the drugs with an intent to distribute.
Second, he argues that the court should have barred the expert
from interpreting his text messages because the expert's
interpretations were either speculative or within the ken of the
jury. We find no reversible error.
1. Rule 704(b) Claim
Rule 704(b) provides that "[i]n a criminal case, an
expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that
constitutes an element of the crime charged." Fed. R. Evid.
704(b). "Those matters are for the trier of fact alone." Id.
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Here, Henry concedes that the police expert "did not explicitly
state that he believed that Henry had the intent to distribute
drugs." Instead, he argues that "the import of" the testimony was
improper because it implied that Henry acted with culpable intent.
Henry focuses on the following exchange during direct examination:
Q. Sir, do you have an opinion based on your training
and experience considering all of the evidence in this
particular case and the reports that you read and your
conversations you've had as to whether it is consistent
with the [sic] distribution or personal use?
A. Yes. It's my opinion, looking at everything, the
large amount of money, looking at the booking sheet
without any employment, apparently, the large amount of
drugs, the way that they're packaged, all similar in
size and packaging, also looking at — you know, putting
it all together, in my opinion, these drugs were packaged
for sale.
According to Henry, the expert's opinion that "these drugs were
packaged for sale" was impermissible under Rule 704(b) because it
implies an answer to a question that is reserved exclusively for
the jury.
We conclude that the district court did not abuse its
discretion in admitting the expert's opinion. Rule 704(b) bars a
witness from characterizing the defendant's intent, but it "does
not, however, apply to 'predicate facts from which a jury might
infer such intent.'" United States v. Peña-Santo, 809 F.3d 686,
694 (1st Cir. 2015) (quoting Schneiderhan, 404 F.3d at 81),
petition for cert. docketed sub nom. Gil-Martínez v. United States,
No. 16-6836 (U.S. Nov. 14, 2016). In this case, the expert
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grounded his opinion that the drugs were packaged for sale on his
general knowledge of criminal practices and the circumstantial
evidence bearing on the issue of intent that was produced during
the trial. He did not attempt to offer any special insight as to
Henry's actual mental state. Accordingly, the expert's testimony
is consistent with prior precedent, which recognizes that a
qualified expert does not violate Rule 704(b) by expressing an
opinion as to whether predicate facts are consistent with drug
distribution rather than mere possession. See United States v.
Valle, 72 F.3d 210, 216 (1st Cir. 1995). Even if the jury
interpreted the expert's testimony to be responsive to the
prosecutor's question and not merely to be an opinion about how
the drugs were packaged, as Henry posits, the phrasing of that
question was permissible. We have upheld expert testimony that
certain facts were "consistent with" distribution. See id.
2. Text Messages
As recounted above, our cases make it clear that a
qualified expert may opine as to the meaning of criminals' coded
communications. See, e.g., Rosado-Pérez, 605 F.3d at 55–56;
Albertelli, 687 F.3d at 446; Santiago, 566 F.3d at 69. Henry does
not ask us to overrule our precedents, nor does he contest the
officer's qualifications as an expert. Rather, he argues that
"[t]he messages contain perhaps two words ('hard' and 'flav') that
could be considered specialized language requiring some
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explanation." The remaining messages, he contends, "were normal,
uncoded language that the jurors could read and interpret on their
own." We find no abuse of discretion.
First, many of the text messages contain specialized
language whose meaning an expert might helpfully illuminate. For
example, the words "flav" and "dub" are jargon inaccessible to
many jurors. See Santiago, 566 F.3d at 68-69 (interpreting "chef
it up" as slang for "converting cocaine into crack"). Similarly,
the use of ordinary words — e.g., "hard," "work," "plays," "7 to
a 14 lg," and "bus[t]ing a couple moves" — in an idiosyncratic way
rendered them meaningless to laypersons. The witness shed light
on contextual meanings for these words, which undoubtedly
"help[ed] the trier of fact to understand the evidence or to
determine a fact in issue." See Fed. R. Evid. 702(a).
Second, the officer's interpretation of other text
messages that did not contain obscure jargon was nonetheless
permissible because he drew upon his expertise in explaining the
relevance of the communications in the drug trade. For example,
he discussed an exchange in which Henry's interlocutor indicates
that Henry has several cell phones and asks to borrow one. The
officer drew upon his extensive experience in explaining the
significance of this exchange, by noting that dealers often use
multiple phones, each for a different purpose. Such explanations
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are based upon his expertise and are helpful to the jury, which
may be unaware of the inner workings of the drug trade.
Third, any danger posed by the testimony was
substantially mitigated by cross-examination and the district
court's limiting instruction. Once an expert testifies, "[f]rom
that point forward, the credibility and weight of the expert's
opinion [is] for the factfinder." Jordan, 813 F.3d at 446. The
jury's task is to "independently evaluate [his] interpretations,"
and the defendant's task is to "exhaustively cross-examine[] [the
witness] about possible alternative interpretations." See Rosado-
Pérez, 605 F.3d at 56. Here, Henry sought to undermine the
witness's testimony by cross-examining him on alternative
interpretations. For example, Henry effectively cross-examined
the witness on the meaning of "bus[t]ing a move" by prompting the
officer to recall the lyrics of a popular song that uses the same
phrase in a manner unrelated to drug dealing. The danger posed by
questionable testimony was also mitigated by the district court's
instruction to the jury that it should weigh the evidence
independently. See Albertelli, 687 F.3d at 448-49.
For these reasons, the district court did not commit
reversible error in allowing the police expert to testify.
D. Lesser Included Instruction
Henry faults the district court for failing to instruct
the jury on the lesser included offense of simple possession. We
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review a district court's failure to give a properly requested
jury instruction de novo, but examine an unpreserved request only
for plain error. United States v. Meadows, 571 F.3d 131, 145–46
(1st Cir. 2009). Before turning to the merits of Henry's argument,
we first consider the government's contention that the court's
failure to instruct the jury on simple possession is subject to
plain error review because Henry failed to renew his objection
with the court after the charge was read.
1. Failure to Properly Object
Rule 30 of the Federal Rules of Criminal Procedure
requires a party who objects to the court's failure to give a
proposed instruction to inform the court of his objection "before
the jury retires to deliberate." Fed. R. Crim. P. 30(d). The
text of Rule 30(d) is silent regarding the earliest point at which
a party may object so as to preserve the issue for appeal, but our
decisions have ordinarily required the appellant to renew his
objection after the jury has been charged when the court has given
the parties that opportunity. See Gemma, 818 F.3d at 38; Meadows,
571 F.3d at 146; United States v. O'Connor, 28 F.3d 218, 221 (1st
Cir. 1994). We have also determined that this rule is "binding on
both the court and attorney and that a statement by the court
'after the charge that objections made prior to it will be saved
does not absolve the attorney from following the strictures of the
rule.'" O’Connor, 28 F.3d at 221 (quoting Poulin, 18 F.3d at 982).
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Henry attempts to avoid this precedent by invoking our
decision in United States v. Kaplan, 832 F.2d 676, 682 (1st Cir.
1987). Kaplan, however, cannot save Henry from failing to properly
preserve his objection. Unlike in this case, the defendant in
Kaplan renewed his request for an instruction following the jury
charge, but simply did not "repeat the magic word 'objection.'"
See Kaplan, 832 F.2d at 682. Finding that our precedents did not
require the strict use of that word, we determined that the
objection had been preserved. See id. Here, in contrast, Henry
did not make any attempt to preserve his objection after the charge
was read.
Henry also correctly notes that there are circumstances
where "a court should not require a lawyer 'to persist stubbornly
when the judge has made it perfectly clear that he does not wish
to hear what the lawyer has to say.'" United States v. Fernández-
Garay, 788 F.3d 1, 4 (1st Cir. 2015) (quoting United States v.
Toribio-Lugo, 376 F.3d 33, 41 (1st Cir. 2004)). Henry, however,
did not face those circumstances. He cannot plausibly argue that
he "had no reasonable opportunity" to object. Cf. Fernández-
Garay, 788 F.3d at 4 (Rule 51 objection preserved where judge
abruptly cut short defense counsel and forbade him from
continuing). Immediately following the jury charge, but before
deliberations, the district court invited counsel to sidebar. The
prosecution informed the court that it had "no objection" to the
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instructions, and Henry stated that there was "[n]othing from . .
. the defense." Henry was required to object here. After being
invited to sidebar, he would not have "affront[ed] the court or
prejudice[d] the jury beyond repair" by respectfully renewing his
objection. See Toribio-Lugo, 376 F.3d at 41 (quoting Douglas v.
Alabama, 380 U.S. 415, 422 (1965)).
In the present case, the district court invited the
parties to approach the bench after it completed its instructions
in an obvious effort to permit the parties to register their
objections to the jury charge. Henry did not present any
objections in response to this invitation. Accordingly, his claim
that the court erred in failing to instruct the jury on simple
possession is reviewed only for plain error. See Meadows, 571
F.3d at 146.
2. Simple Possession Instruction
A failure by the district court to give a proposed jury
instruction will qualify as plain error only if the defendant
demonstrates that "(1) an error occurred; (2) which was clear or
obvious; and both (3) affected [his] substantial rights; and (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Gemma, 818 F.3d at 30 (alteration in
original) (quoting United States v. Laureano-Pérez, 797 F.3d 45,
60 (1st Cir. 2015)). "This standard is exceedingly difficult to
satisfy in jury instruction cases: '[T]he plain error hurdle, high
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in all events, nowhere looms larger than in the context of alleged
instructional errors.'" Meadows, 571 F.3d at 145 (quoting United
States v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006)).
Henry cannot satisfy the plain error test because he is
unable to show that his substantial rights were affected by the
court's refusal to instruct on simple possession. To satisfy this
requirement, a defendant must establish "a reasonable probability
that, but for [the error claimed], the result of the proceeding
would have been different." United States v. Rodríguez, 735 F.3d
1, 11 (1st Cir. 2013) (alteration in original) (quoting United
States v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008)). Henry fails
to present a persuasive argument that the jury might have acquitted
him of the possession with intent to distribute charge if it had
been instructed on the lesser included offense of simple possession
given that: the record contains no affirmative evidence that Henry
possessed the drugs for personal use; Henry's intent to distribute
was minimally contested and nearly conceded at trial; the quantity
of drugs Henry carried was consistent with an intent to distribute;
Henry was carrying a large amount of cash denominated at the street
purchase price for crack cocaine; and Henry's text messages
suggested that he was a dealer of drugs rather than a mere user.
Accordingly, the district court did not commit plain error in
refusing to instruct on the lesser included offense of simple
possession. Cf. United States v. Henson, 945 F.2d 430, 440-41
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(1st Cir. 1991) (holding that failure to give lesser included
offense instruction was not "error of sufficient magnitude to
overcome the 'high hurdle' interposed by the plain error rule"
where uncontroverted evidence was sufficient to establish
additional elements of greater offense).1
III. CONCLUSION
For the reasons stated, Christopher Henry's conviction
and sentence are affirmed.
- Concurring Opinion Follows -
1
The district court enhanced Henry's sentence based on a
finding by a preponderance of the evidence that he possessed a gun
during the commission of his drug crime. Henry complains that the
enhancement violated his constitutional rights under the Fifth and
Sixth Amendments because it was based on acquitted conduct. We
decline to consider this argument because, as Henry acknowledges,
his argument is foreclosed by Supreme Court and First Circuit case
law. See United States v. Watts, 519 U.S. 148, 149 (1997) (per
curiam); United States v. Alejandro-Montañez, 778 F.3d 352, 361
(1st Cir. 2015).
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KAYATTA, Circuit Judge, with whom THOMPSON, Circuit
Judge, joins, concurring. Because the court's opinion well
marshals our controlling precedent in support of its conclusions,
I join in full. I write separately only to note that the admission
of evidence of a prior conviction to establish the "intent" of the
defendant in connection with the offense being tried can become
indistinguishable from the admission of evidence of a prior
conviction to prove a propensity to commit that type of crime.
The opinion for the court relies on our prior opinion in
United States v. Manning, 79 F.3d 212, 217 (1st Cir. 1996) to
approve the admission of a prior drug distribution conviction to
prove the element of intent in this later drug distribution case.
There is reason to think, though, that the inference that Manning
licensed in this case, and in drug cases of this sort, is contrary
to Federal Rule of Evidence 404(b). See United States v. Miller,
673 F.3d 688, 699 (7th Cir. 2012) ("How, exactly, does [the
defendant's] prior drug dealing conviction in 2000 suggest that he
intended to deal drugs in 2008? When the question is framed this
way, the answer becomes obvious, even though implicit: 'He
intended to do it before, ladies and gentlemen, so he must have
intended to do it again.' That is precisely the forbidden
propensity inference."); United States v. Turner, 781 F.3d 374,
390–91 (8th Cir.) (similar), cert. denied, 136 S. Ct. 208 (2015),
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cert. denied, 136 S. Ct. 280 (2015), and cert. denied, 136 S. Ct.
493 (2015).
This case illustrates the manner in which the relevance
of a prior conviction admitted to prove "intent" under Manning may
rest on little more than propensity. In its brief, the government
did not articulate how Henry's prior conviction was relevant to
whether he intended to distribute the crack cocaine found in his
pocket on May 29, 2014. At oral argument, the government posited
that the prior conviction was relevant to Henry's intent because
the fact that Henry possessed fourteen separately packaged rocks
of crack cocaine with the intent to distribute them in March 2011
implies that he intended to distribute the twenty-one separately
packaged rocks of crack cocaine he possessed in May 2014. This
reasoning is propensity-based. It requires inferring from Henry's
prior conviction that he has the following character trait:
whenever he possesses separately packaged rocks of crack cocaine,
he intends to distribute them. That is, his propensity is to be
a seller, rather than a buyer or user. It then requires inferring
that he acted in accordance with that character trait in May 2014.
The admission of Henry's prior conviction on this line of
reasoning, although allowed by Manning, appears to run afoul of
Rule 404(b)(1), which bars the use of other acts evidence "to prove
a person's character in order to show that on a particular occasion
the person acted in accordance with the character."
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For the foregoing reasons, one can make a good argument
for going en banc in a future case to reconsider our Rule 404(b)(1)
jurisprudence. I say "future" case because, in this particular
case, any Rule 404(b) error was harmless given the overwhelming
evidence of Henry's guilt.
The main argument for not revisiting Manning at some
point (assuming one thinks it may be wrong) is that it might not
be worth the effort, given that in drug cases of this sort, prior
convictions are often admitted for multiple reasons. For instance,
in many cases, prior convictions are admitted to show both
knowledge of the nature of a substance and intent to distribute.
See, e.g., United States v. Doe, 741 F.3d 217, 230 (1st Cir. 2013);
United States v. Pelletier, 666 F.3d 1, 6 (1st Cir. 2011); United
States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009); United States
v. Landrau-López, 444 F.3d 19, 24 (1st Cir. 2006); United States
v. Nickens, 955 F.2d 112, 123-24 (1st Cir. 1992) (collecting
cases). Commonly, there are chains of inference from a prior
conviction to knowledge that do not include propensity as a
necessary link. See, e.g., United States v. Arias-Montoya, 967
F.2d 708, 710-11 (1st Cir. 1992) (discussing several prior cases
where prior convictions were admitted on knowledge grounds);
United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990).
Overruling Manning would nevertheless have three non-
trivial effects in cases where the only inferential chains linking
- 29 -
a prior conviction to intent to distribute include criminal
propensity. First, it would mean that juries in these cases would
not be instructed that they could use prior convictions to infer
intent. Second, it would mean that the relevance of a prior
conviction to intent to distribute would contribute not to the
conviction's probative value under Rule 403, but instead to the
risk of unfair prejudice. Third, it would allow defendants to
keep a prior conviction out of a case without having to stipulate
to intent to distribute. These effects would occur even in cases
where the prior conviction might be specially relevant on one of
the other grounds listed in Rule 404(b)(2).
The third of these effects can be particularly
significant. Consider, for example, a case in which a prior drug
sale is relevant to knowledge, which happens not to be an element
that the defendant desires to challenge. In Ferrer-Cruz, 899 F.2d
at 139; United States v. Garcia, 983 F.2d 1160, 1175-76 (1st Cir.
1993); and Pelletier, 666 F.3d at 6, we pointed to the possibility
that a defendant may remove an issue like knowledge from a case by
tendering an express disavowal and willingness to accept a
corresponding limitation on cross-examination and jury
instruction. While we have never had occasion to accept or reject
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such an approach directly in construing Rule 404,2 certainly the
district courts can achieve the same result on their own simply by
finding that the presence of such a disavowal and instruction shift
the Rule 403 balance against admission. Manning complicates such
an approach because it effectively requires a stipulation on intent
as well in order to eliminate fully the Rule 404(b)(2) toehold for
admitting the evidence. Of course, even under Manning, trial
courts have ample room to keep out such evidence under Rule 403
even in the absence of a stipulation on intent. As this case
shows, though, sometimes they do not exercise that discretion in
this manner.
2 The Supreme Court has held that a stipulation to felon
status, when it is an element of a charged crime, does not
eliminate the relevance of a prior conviction to that element, but
merely impairs its probative value under Rule 403. See Old Chief
v. United States, 519 U.S. 172, 179 (1997) ("[The] evidentiary
relevance [of Old Chief's prior conviction] under Rule 401 [was
not] affected by the availability of alternative proofs of the
element to which it went, such as an admission by Old
Chief . . . ."); id. at 184 ("[W]hat counts as the Rule 403
'probative value' of an item of evidence, as distinct from its
Rule 401 'relevance,' may be calculated by comparing evidentiary
alternatives."). There is room to debate both whether this
reasoning from Old Chief applies to prior convictions introduced
for one of the purposes listed in Rule 404(b)(2) and whether its
holding as to relevance applies to so-called "special relevance"
under Rule 404(b). Compare United States v. Crowder, 141 F.3d
1202, 1206-07 (D.C. Cir. 1998) (en banc), with id. at 1212-13
(Tatel, J., dissenting).
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