United States v. Parker , 872 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1770
UNITED STATES OF AMERICA,
Appellee,
v.
SHAYNE PARKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
John A. Amabile for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom William D. Weinreb, Acting United States Attorney, was
on brief, for appellee.
September 19, 2017
THOMPSON, Circuit Judge.
PREFACE
Sometime on or around March 22, 2014 — all dates here
are in that year, by the way — Shayne Parker committed two legal
no-nos: he possessed 50 rounds of 38-caliber ammo while being a
convicted felon, and he transported a SCCY Model CXP 9-mm pistol
into his state of residence without a license. Or so a federal
grand jury in Massachusetts alleged in an indictment charging him
with violating 18 U.S.C. §§ 922(g)(1) and (a)(3). Parker pleaded
not guilty. But a trial jury found him guilty as charged. And a
district judge sentenced him to 60 months in prison and 3 years of
supervised release.
Parker now appeals only his conviction, arguing that the
judge triply erred — first, by not individually voir diring
prospective jurors about their feelings toward race; then, by
admitting evidence of other gun and ammo purchases (what we will
call "other-acts evidence"); and, finally, by instructing the jury
on willful blindness.1 Concluding that none of his challenges
rises to the level of reversible error, we affirm.
1 As relevant to our dispute, voir diring is a process through
which "a judge or lawyer" examines "a prospective juror" to see if
"the prospect is qualified and suitable to serve on a jury." See
Voir Dire, Black's Law Dictionary (10th ed. 2014).
- 2 -
HOW THE CASE GOT HERE2
On March 21, Parker drove with Ronald Scott from
Massachusetts (their state of residence) to New Hampshire and
checked into the Keene Inn in Keene, New Hampshire. The room was
registered in Parker's name. There they hooked up with Mitchell
Riddell, a drug customer of Scott's. And Riddell talked to Scott
— in Parker's presence — about buying guns.
The trio got together again the next day, March 22, this
time joined by Melanie LaMott. Turns out LaMott could legally buy
firearms in the Granite State and had agreed with Riddell to act
as a straw buyer.3 Parker and Scott are African-American; Riddell
and LaMott are white — why this matters will become clear in the
next section of this opinion.
The foursome first went to the Alstead Gun Shop in
Alstead, New Hampshire. They checked out some handguns but left
because Scott became uncomfortable with someone in the shop.
2 Because Parker does not attack the sufficiency of the
evidence against him, we describe the pertinent facts as neutrally
as possible. See, e.g., United States v. Cox, 851 F.3d 113, 118
n.1 (1st Cir. 2017); United States v. Rodríguez–Soler, 773 F.3d
289, 290 (1st Cir. 2014).
3 See Straw Purchase, Black's Law Dictionary (10th ed. 2014)
(defining "straw purchase" as "[s]omeone's buying of a firearm for
another who is prohibited to make such a purchase because of a
prior conviction, an order of protection, or some similar
judicially imposed proscription").
- 3 -
The gang then headed to the Sporting and Hunting Depot
in Charlestown, New Hampshire, with Parker driving Scott in a
Subaru and Riddell driving LaMott in a Toyota. After they all
entered the store, LaMott bought a bunch of firearms, one of which
was a SCCY Model CXP 9-mm pistol. Satisfied with the purchases,
the group went to LaMott's Keene apartment, where Scott gave
Riddell and LaMott crack cocaine as a partial payment for their
services. Parker and Scott handled the firearms and said how
pleased they were with them.
The quartet set out for Boston, Massachusetts — Riddell
and LaMott in Riddell's car, and Parker and Scott in the Subaru —
but stopped en route at Dick's Sporting Goods Store in Keene so
Scott and LaMott could buy ammunition, including the 38-caliber
ammunition. Once in Boston, Parker and Scott examined the guns
and ammo. And Scott gave Riddell and LaMott the rest of the drugs
they were owed for helping out.
At some point, the police caught wind of what was going
on. And Parker's arrest, indictment, and conviction followed
apace. As we said, his brief on appeal advances three claims of
error — though all are without merit, for reasons we explain in
the pages that follow.4
4We will note additional details as needed in discussing
Parker's issues.
- 4 -
INDIVIDUAL VOIR DIRE
Background
After Parker elected to go to trial, the parties geared
up to select an impartial jury. As part of that process, Parker's
counsel asked the judge if he planned on conducting any individual
voir dire. "Only at sidebar, if someone raises [a] hand" in
response to a group question, the judge said — though, he stressed,
"we're not going to do individualized voir dire in the sense of
. . . doing it in the lobby or doing it segregated." But Parker's
lawyer believed the judge's proposed approach would not do enough
to uncover potential jurors holding racist views. And so he pushed
for individual voir dire, arguing to the judge as follows:
 As a statistical matter, the criminal-justice system treats
African-Americans much harsher than others.
 The race of the cooperating straw buyers added a "cross-
racial component" to the case.
 The charged ammo/firearm "offenses" also "play[ed] into a
stereotype."
 One could not "realistically expect jurors to respond in
the audience in front of all of the[] other prospective
- 5 -
jurors to questions about whether they are biased or
prejudiced against people based on their race."
 And individual voir dire would better help him assess a
potential juror's demeanor and thus better help him decide
whether he or she had answered the judge's questions
truthfully.
Relying on these reasons — offered without any evidence
(like, say, a social-science study) to back them up — counsel asked
the judge to ask these five questions (the bracketed numbers are
ours):
[1] Do you have any feelings or opinions about black
people that would cause you to question your ability to
be impartial in evaluating the evidence in this case?
[2] Would the fact that Mr. Parker is a black man make
it more difficult for you to decide a verdict in his
favor than if he were white?
[3] Do you believe that black men are more likely to
commit a crime than others?
[4] Have you had any experiences with black people that
might make you unable to be fair and impartial in this
case?
[5] Can you honestly assure the court that the race of
the defendant will not affect your ability to be fair
and impartial?
Responding to counsel's request, the judge said that it
is "by no means clear" that "people will be inhibited from simply
raising their hands in a crowd full of strangers without uttering
a word for fear of being shamed into admitting racial prejudice,"
- 6 -
but "will freely admit racial prejudice to a judicial officer in
a black robe with lawyers and court reporters and law clerks
present." So he denied the call for individual voir dire. "This
is a relatively routine case," the judge then stressed — "not a
death penalty case, not a murder case, not a highly publicized
case." Because "[t]here's no racial angle to it" — "like a victim
and a perpetrator being of different races" — and because
"[n]othing about it particularly w[ould] evoke a strong emotional
response or a racially charged response," the judge saw no reason
"to take the highly unusual and time-consuming and resource-
consuming step of individual voir dire." Asked by the defense to
reconsider, the judge adhered to his ruling — despite counsel's
insistence that Donald Trump's recent victory in the Massachusetts
Republican primary had "engendered serious racial polarization"
and that individual voir dire would add only "a couple of extra
hours" to the process.
The judge proceeded to empanel the jury. And per his
usual practice, the judge told the prospective jurors that "[i]t
is very important that you give truthful responses." And then the
judge said:
Ladies and gentlemen, when I ask a question if you think
your answer is yes or your answer is yes, please raise
your hand. If you raise your hand, I'm going to call
you over here to the sidebar one-by-one. I'll find out
what the issue is. I might explore it with you a little
bit.
- 7 -
The judge started voir dire off with some basic
icebreaking questions. For instance, after mentioning the names
of the potential witnesses, the judge asked, "Do any of you know
or are you related to . . . or acquainted" with "any of those
people?" A few potential jurors raised their hands, just like the
judge had asked them to do. And after calling them to sidebar,
the judge asked some probing follow-up questions.
Before turning to the issue of racial bias, the judge
noted that "it can be difficult sometimes for people to talk openly
about [race] or to be honest or open about whatever feelings they
may have on [that] subject[], but your duties and obligations as
citizens and as potential jurors require you to be completely
honest with me." Having said that, the judge asked the group if
anyone had "any feelings of any kind that may affect your ability
in any way to be fair and impartial in the trial of an African-
American defendant because of his race." No one raised a hand.
At sidebar, Parker's lawyer restated his position that
group questions answered with a show of hands did not suffice
because "there's no way anybody is going to come forward on that."
"All right," the judge said, "[o]ther than individualized voir
dire, is there any particular question you want me to ask that I
have not asked to the group?" Defense counsel identified two,
which the judge posed to the group: "[D]o any of you believe that
- 8 -
it is more likely that the defendant is guilty of the crime because
he is African-American?" And "[h]ave any of you had an experience
of any kind with African-Americans that would affect your ability
to be a fair and impartial juror in the trial of this case?" No
one raised a hand in response to either question. The judge
empaneled a jury of twelve, plus two alternates. And as seated,
the jury had at least one African-American member (Parker's lawyer
told us at oral argument that he "believe[d] there was one or two
African-Americans" on the jury).
Arguments
As Parker sees it, the judge not only had to voir dire
potential jurors about possible racial prejudice, but he also had
an obligation to question them individually rather than
collectively — and to speak with each one outside the presence of
the others. For support, Parker's brief talks about
 the "cross racial" makeup of the persons involved in the
charged offenses — i.e., an African-American defendant and
white straw buyers;
 the "nature" of the crime, which "created inherent
stereotyping with [an] African American . . . from Boston
. . . preying on [white] drug addicted" New Hampshirites;
 "the statistical evidence of bias against African Americans
in the criminal justice process";
- 9 -
 how the trial took place in a racially-charged atmosphere
caused "by the then ongoing presidential election campaign";
and
 how one cannot expect a potential juror to cop to being a
racist in front of other potential jurors.
The government counters that "the circumstances" of
Parker's "case" did not require the judge to question prospective
jurors about racial bias. So, the government adds, the judge
actually went above and beyond what was required because he did
quiz them on prejudice. And, the government insists, Parker has
not shown that the judge's decision to question collectively rather
than individually infracted any constitutional command.
Standard of Review
Our review of the judge's voir dire decision looks only
for abuses of discretion. See, e.g., United States v. Gelin, 712
F.3d 612, 621 (1st Cir. 2013). The key "question under this
standard . . . is not whether we, if sitting as a court of first
instance, would have weighed the relevant considerations
differently," but instead "whether our review of the record leaves
us with a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors." Id. (quotations and
citations omitted).
- 10 -
Analysis
A defendant has a constitutional right to trial by an
impartial jury, see U.S. Const. amend. VI — something voir dire
helps safeguard by giving "the court and counsel" a chance "to
examine" potential jurors "for impartiality," see Peña-Rodriguez
v. Colorado, 137 S. Ct. 855, 866 (2017). And when it comes to
describing the judiciary's role here, the Supreme Court has pulled
no punches: "to ensure that individuals who sit on juries are
free of racial bias," our "Constitution at times demands that
defendants be permitted to ask questions about racial bias during
voir dire." Peña-Rodriguez, 137 S. Ct. at 868 (emphasis removed).
That is so because "discrimination on the basis of race, 'odious
in all aspects, is especially pernicious in the administration of
justice.'" Id. (quoting Rose v. Mitchell, 443 U.S. 545, 555
(1979)).
Ever-faithful to controlling precedent, we have said
that "[t]he possibility of racial prejudice" creates "special
concerns" — concerns that in "certain limited circumstances"
require the asking of "special voir dire question[s]." United
States v. Brown, 938 F.2d 1482, 1485 (1st Cir. 1991); see also
Gelin, 712 F.3d at 621. By way of example, Brown pulled two
"special circumstances" cases from the U.S. Reports. One
"involv[ed] a black civil rights activist whose defense to a
- 11 -
marijuana possession charge was that he had been framed by local
white police." 938 F.2d at 1485 (citing Ham v. South Carolina,
409 U.S. 524 (1973)). And the other "involv[ed] a sentencing of
a black defendant who had been convicted of [the] capital offense"
of killing a white storekeeper. See id. (citing Turner v. Murray,
476 U.S. 28 (1986)). Both are cases where "[r]ace was . . .
'inextricably bound up with the conduct of [defendant's] trial.'"
See id. (quoting Ristaino v. Ross, 424 U.S. 589, 597 (1976)). But
we have also said that voir dire "[o]rdinarily . . . need not
include questions regarding racial prejudice" and that "[t]he mere
fact that a defendant is black does not alone" activate "the
special questioning requirement" — though we (echoing the Supreme
Court) have stressed too that the better approach "'generally is
to propound appropriate questions designed to identify racial
prejudice if requested by the defendant,'" even in situations where
it is not constitutionally required. See id. (quoting Ristaino,
424 U.S. at 597 n.9).5
5 To the extent Parker claims that Peña-Rodriquez overruled
these just-cited cases, his claim is off base. Peña-Rodriguez is
not a jury-selection case, but is instead a case involving "the
no-impeachment rule" — i.e., a "general rule" saying that once the
jurors' "verdict has entered, it will not later be called into
question based on the comments or conclusions they expressed during
deliberations." 137 S. Ct. at 861. Peña-Rodriguez's holding is
"that where a juror makes a clear statement that indicates he or
she relied on racial stereotypes or animus to convict a criminal
defendant, the [Constitution] requires that the no-impeachment
- 12 -
Having said all this, however, we need not referee the
parties' duel over whether the judge had to ask voir dire questions
to smoke out possible racial bias. And this is because even if we
assume (without deciding) that he had to explore the issue during
the jury-selection process, the judge did exactly that — asking
(as we detailed above) the group of potential jurors not one but
three questions designed to weed out racial bias (including two
questions suggested by defense counsel). Fairly viewed, the
judge's questions during group voir dire captured the essence of
what Parker wanted asked during the hoped-for individual voir dire,
even if they did not match up word for word — certainly they showed
the judge's sensitivity to racial-prejudice concerns. Perhaps
that is why Parker spends most of his time arguing that the judge
should have done an individual voir dire, talking to each potential
rule give way in order to permit the trial court to consider the
evidence of the juror's statement and any resulting denial of the
jury trial guarantee." Id. at 869. Sure, as Parker notes, Peña-
Rodriguez made powerful points aplenty, like: while "[a]ll forms
of improper bias pose challenges to the trial process[,] . . .
there is a sound basis to treat racial bias with added precaution."
Id. But none of the cases in the above paragraph says anything to
the contrary — actually, they are on the same page as Peña-
Rodriguez when it comes to discussing the poisonous effects of
racial prejudice on the justice system. So we may — no, must —
follow them.
- 13 -
juror outside of the others' earshot. Though forcefully presented
by able counsel, his argument does not persuade.
Trial judges enjoy much discretion about how to conduct
voir dire, including whether to conduct individual voir dire. See,
e.g., United States v. Pérez-González, 445 F.3d 39, 46-47 (1st
Cir. 2006). And certainly there are situations where individual
voir dire makes sense. See generally Horton v. Allen, 370 F.3d
75, 80-83 (1st Cir. 2004) (holding that defense counsel had not
acted ineffectively by joining the prosecutor in requesting that
the trial judge ask prospective jurors during a closed individual
voir dire "about the effect that racial prejudice and pretrial
publicity could have on their ability to decide the case
impartially"). But no authority exists to support Parker's theory
— floated during oral argument — that if the case facts suggest
the judge should voir dire on race, then only an individual voir
dire will do. On the contrary, in cases where "the subject of
possible racial bias must be 'covered' by the questioning of the
trial court in the course of its examination of potential jurors,"
the Supreme Court has been "careful not to specify the particulars
by which this could be done" — noting, for example, that it has
"not . . . require[d] questioning of individual jurors about facts
or experiences that might have led to racial bias." See Mu'Min v.
Virginia, 500 U.S. 415, 431 (1991). And as the government tells
- 14 -
us — without contradiction from Parker — the only circuit to
squarely consider the issue before us held that, "ordinarily,
questioning jurors as a group" is constitutionally sufficient,
"even when the defendant belongs to a racial, ethnic, or religious
minority and juror bias on one or more of these grounds might be
a concern." See United States v. Hosseini, 679 F.3d 544, 555 (7th
Cir. 2012).
Trying to convince us that his case is anything but
ordinary, Parker turns to a concurrence in a nearly 30-year-old
Eleventh Circuit opinion, Berryhill v. Zant, 858 F.2d 633 (11th
Cir. 1988) — a habeas case involving a crime that caused a torrent
of pretrial publicity. Unfortunately for Parker, the Berryhill
concurrence is not a difference-maker here.
To over-simplify (slightly) for present purposes, the
district judge there concluded that a state court's decision to
deny Berryhill's request "for a sequestered" individual voir dire
violated his fair-trial rights. Id. at 640-43. In taking this
issue on (the majority did not speak to that subject because it
affirmed the grant of habeas relief on other grounds), the
concurrence quoted the district judge, who said — and this is the
money quote as far as Parker is concerned — that the "inhibiting
effect of a large audience . . . made a careful and probing voir
dire all the more important." Id. at 641 (Clark, J., specially
- 15 -
concurring) (emphasis added). Agreeing with the district judge
that the state court's voir dire had not done enough to uncover
the possible influence of pretrial publicity, the concurrence
suggested that at any new trial, the state court should do a
general group voir dire on the pretrial-publicity issue (asking
them whether they had read or heard anything about the case, for
example) and then do "an individualized segregated voir dire" if
necessary. Id. at 642-43 (Clark, J., specially concurring). A
"sequestered individual voir dire," the concurrence stressed,
would prevent "those prospective jurors who had not read or heard
about the case" from being "contaminat[ed]" by "the responses of
those who had." Id. at 642 (Clark, J., specially concurring).
As we understand his brief, Parker is claiming that the
"inhibiting effect" concept gives some oomph to his core contention
that people will not answer race questions honestly during a group
voir dire. Like the concurring judge in Berryhill, we do not doubt
that the "inhibiting effect" concern makes a diligent and
thoughtful voir dire a must. But again, that is precisely what
our judge did here. And his voir dire procedure — questioning
jury prospects about race as a group (prospects who had already
shown a willingness to raise their hands, mind you) and allowing
for individualized follow-up questions at sidebar if necessary —
jibed with the procedure recommended by the Berryhill concurrence.
- 16 -
Which is why this out-of-circuit opinion is not the game-changer
that Parker thinks it is.
Summarizing succinctly, given the particulars of
Parker's case, we believe that the tack taken by the experienced
judge passes the abuse-of-discretion test with room to spare. See
generally Pérez-González, 445 F.3d at 46 (noting that "[w]hile we
have endorsed the concept of individual questioning in high profile
cases, we have approved 'group' questioning of potential jurors
about bias as within the district court's broad discretion in
conducting voir dire" (citations omitted)). Enough said on the
voir-dire issue.
OTHER-ACTS EVIDENCE
Background
Before the trial kicked off, the government moved in
limine seeking permission to introduce evidence of gun and ammo
purchases beyond the ones that formed the bases of the indictment's
counts. Zeroing in on other straw buys that went down on March
22, as well as buys that occurred on March 10 and 16 (more on these
in a bit), the government argued, first, that this other-acts
evidence showed Parker's "knowledge and intent to transport and
receive the firearms in the state of Massachusetts," and, second,
that the other-acts evidence's probative worth outweighed any
unfairly prejudicial effect. Parker opposed the motion.
- 17 -
Having gotten the green light from the judge, the
government introduced evidence at trial that on March 10, Parker
and Scott got the straw purchasers to buy multiple firearms at the
Alstead Gun Shop: Parker drove Scott in the Subaru to New
Hampshire, where they met with Riddell and a woman named Sandra
Egbert. Scott gave Riddell money and general instructions on what
guns to buy. The four — Parker, Scott, Riddell, and Egbert —
entered the store. Egbert bought three guns. At some point, the
guns ended up in the Subaru. And Parker said that he really liked
one of them — "a silver and black SCCY 9 millimeter handgun" — and
that he wanted to buy "more like it."
The government also introduced evidence of the straw
purchases that happened less than a week later, on March 16:
Before the buy, Parker and Scott headed to New Hampshire and stayed
at the Keene Inn in a room registered to Parker. They met with
Riddell and LaMott. Parker again said that he wanted more "SCCY"
guns. And using Scott's money, LaMott then bought three firearms
(one of which was an "SCCY" handgun) at the Sporting and Hunting
Depot in Charlestown. After stopping at LaMott's Keene apartment,
the group drove to Boston (Riddell drove LaMott in his car).
Parker handled the guns back at the Boston apartment. And Riddell
and LaMott returned to New Hampshire after getting crack cocaine
as payment for their services.
- 18 -
And, finally, the government introduced evidence of the
March 22 gun buy — one that occurred contemporaneously with the
purchase of the SCCY Model CXP 9-mm pistol that was the subject of
the indictment: At the Sporting and Hunting Depot, Parker told
Riddell that he and Scott wanted an assault rifle hanging on the
wall. And Parker and Scott then gave Riddell money to buy the
weapon. LaMott made the purchase (again, at the same time she
bought the SCCY Model CXP 9-mm pistol). And later that day, LaMott
and Scott bought ammo at Dick's Sporting Goods Store in Keene.
Importantly, at various points in the trial the judge
instructed the jury regarding the purposes for which the other-
acts evidence was introduced. Here is a perfect example of the
kind of instructions he gave (the judge gave this one the first
time he admitted the evidence):
I'm permitting you to hear evidence of . . . transactions
[beyond those underlying the indictment] for the purpose
of permitting you to evaluate that evidence for whatever
weight you choose to give it in considering [Parker's]
intent, motive, knowledge, whether he had a particular
plan, but, again, this is not charged conduct.
. . . [Y]ou must take special care to ensure that
you do not consider this evidence as evidence that
[Parker] has a bad character or somehow is a bad person,
and, therefore, committed the crime.
You must evaluate the charged crime[s] according to
their own evidence and not because of whatever character
[Parker] does or does not have.
- 19 -
Hard on the heels of this instruction, the judge — at defense
counsel's request — told the jury that "another way of framing
. . . the same concept is you may not conclude that [Parker] had
a propensity to commit a crime and, therefore, committed the crime,
that he acted in accordance with bad character, so to speak." And
to give another example, in his final jury charge the judge gave
this reminder:
You've heard evidence that [Parker] may have
committed acts similar to those charged in this case on
one or more different occasions. You may consider that
evidence only for the limited purposes of deciding:
Whether [he] had the necessary intent, knowledge,
or state of mind to commit the crimes charged in the
indictment;
Whether [he] had a motive or opportunity to commit
the crimes charged; or
Whether [he] acted according to a plan to commit
the crimes charged.
You may not use that evidence for any other purpose.
In particular, you may not use it to infer that, because
of his character, or because he has a propensity to act
in a certain way, [he] committed the crimes charged.
Arguments
Parker thinks the judge reversibly erred here because
(by his lights) the "uncharged crimes" evidence constituted
"prejudicial" other-acts evidence that the government used to fill
lots of trial time merely to portray him as bad man, thus "creating
[a] significant risk" that the jury convicted him "based on his
- 20 -
propensity to commit a crime."6 The government thinks the
opposite, saying the judge rightly ruled that the evidence had
non-propensity purposes, chiefly to establish Parker's knowledge
and intent. And, the government writes, the evidence "was also
not unfairly prejudicial" to Parker — particularly given the
judge's "deftly and timely deployed limiting instructions," which
"eliminated any potential for unfair prejudice." Wrapping up, the
government says that if error occurred it was harmless given the
considerable "uncontested evidence of Parker's guilt."
Standard of Review
Our review of the judge's decision to admit other-acts
evidence is for abuse of discretion only.7 See, e.g., United
States v. Munyenyezi, 781 F.3d 532, 539 (1st Cir. 2015); United
States v. George, 761 F.3d 42, 58 (1st Cir. 2014). And convincing
us that the judge abused his discretion takes no small effort.
See United States v. Hadfield, 918 F.2d 987, 995 (1st Cir. 1990).
We say that because "[o]nly rarely — and in extraordinarily
6 Parker calls the evidence "irrelevant" in part of a sentence
buried in the summary-of-the-argument section to his brief, but
then does nothing to elaborate on it. So we hold any potential
relevance-based argument waived for lack of development. See,
e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
7 The parties agree (at least implicitly) that Parker's
counsel did enough below so that this issue gets abuse-of-
discretion (and not simply plain-error) review. And we have no
basis to conclude otherwise.
- 21 -
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." Id. (quoting Freeman v. Package Mach. Co., 865 F.2d 1331,
1340 (1st Cir. 1988)).
Analysis
No one doubts that prosecutors can offer evidence of
uncharged crimes so long as the evidence goes to proving something
other than the defendant's bad character, like proving his intent
or knowledge. See Munyenyezi, 781 F.3d at 539 (citing Fed. R.
Evid. 404(b)(2)); see also Rodríguez-Soler, 773 F.3d at 297 (noting
that the list of permissible purposes "is illustrative, not
exhaustive"). But even then, the judge can keep the evidence out
if its potential for unfair prejudice "substantially outweigh[s]"
its probative worth. See Fed. R. Evid. 403; see also United States
v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984) (explaining that if
other-acts evidence is probative of some issue other than
character, "it is admissible, subject only to the rarely invoked
limitations of Rule 403"). With these preliminaries out of the
way, we can dispose of Parker's claim quickly enough.
The government is exactly right that prosecutors used
the other-acts evidence not to show Parker's bad character but to
show his intent and knowledge. Take the other-acts evidence of
- 22 -
the March 22 purchases. Parker's expressing an interest in the
assault-style rifle, giving money to help buy it, and handling it
back in Boston (on the very day of the charged criminal purchases)
showed his awareness of — and his participation in — the group's
gun/ammo-purchasing project. Ditto for the other-acts evidence of
the March 10 and 16 purchases, since those other acts not only
occurred just before the charged acts, they also closely allied
with the types of crimes Parker was on trial for — similarities
include stays at the Keene Inn, in a room registered to Parker;
the shuttling of guns and ammo from New Hampshire to Massachusetts;
and the giving of drugs to straw buyers as payment for their
services. All of this showed that Parker was a knowledgeable
scheme member and not simply an "unknowing" innocent. See United
States v. Aguilar-Aranceta, 58 F.3d 796, 798-99 (1st Cir. 1995)
(stressing that if the evidence might admit of an innocent
"explanation" and the parties dispute the defendant's "intent and
knowledge," the judge has the "discretion to permit the government
to introduce evidence of prior similar offenses to demonstrate the
unlikeliness that the defendant was merely an innocent and
unknowing bystander"); see also Hadfield, 918 F.2d at 994
(collecting cases upholding the admission of a defendant's prior
- 23 -
involvement in similar illegal activities "to prove knowledge and
intent").8
And prejudicial though it was — nearly all evidence is
prejudicial, "by helping one side and hurting the other" — the
complained-of other-acts evidence (admitted for the perfectly
permissible purpose of showing Parker's knowledge and intent) was
not unfairly prejudicial. See Rodríguez-Soler, 773 F.3d at 296
(discussing how Rule 403 works). Parker tries to establish unfair
prejudice by suggesting that the other-acts evidence ate up too
much court time. But the record shows that in this 5-day trial
involving 15 witnesses, testimony about the gun-and-ammo purchases
came from just 2 testifiers, Riddell and LaMott. Also, the judge's
limiting instructions on the proper use of the other-acts evidence
— crafted with defense counsel's input, mind you — did enough to
reduce any possible prejudice. See, e.g., United States v. Moon,
8 Parker talks up a non-binding (and un-appealed) district
court opinion, United States v. Da Lin, 707 F. Supp. 2d 158 (D.
N.H. 2010), hoping against hope that we might see the other-acts-
evidence issue his way. Among other things, the district judge in
Da Lin found "insufficient evidence to determine whether the prior
conduct" at issue there "was 'sufficiently similar' to that alleged
in the pending charges to 'allow a juror to draw a reasonable
inference probative of knowledge and intent.'" Id. at 162 (quoting
United States v. Landrau–Lopez, 444 F.3d 19, 24 (1st Cir. 2006)).
Compare Da Lin to our case and the difference is night and day,
given our conclusion that the similarity between the uncharged and
charged conduct here had probative value in establishing Parker's
knowledge and intent. So Da Lin helps Parker not at all.
- 24 -
802 F.3d 135, 144-45 (1st Cir. 2015), cert. denied, 137 S. Ct. 830
(2017); United States v. Manning, 79 F.3d 212, 217 (1st Cir. 1996).
The long and the short of it is that the judge did not
abuse his discretion by admitting the other-acts evidence.9
Two issues down, one to go.
WILLFUL-BLINDNESS INSTRUCTION
Background
At a charge conference held before the close of evidence,
the judge asked the parties if he should give a willful-blindness
instruction and if so, why.
The prosecutor responded that yes, the judge should give
the charge. For support, the prosecutor pointed to Parker's post-
arrest statement to law enforcement that Scott had paid him $200
"like three times" to drive him to New Hampshire but that "each
time, when we stayed in the hotel, when we came back to Boston,
the only thing we came back with was marijuana." Parker added
that he "didn't want to know" what else Scott was up to — and
though Scott once went to the car to get "stuff," a word Parker
took to mean guns, Parker claimed that he left the room because he
"didn't want to know about nothing." According to the prosecutor,
Parker's comments show "that he's willfully blind by attempting to
9 Given this conclusion, there is no need for a harmless-
error analysis.
- 25 -
close his eyes to the conduct." "I think it's fairly presented in
the evidence or it certainly will be when the government introduces
[the] statement tomorrow," the prosecutor stressed.
Parker's lawyer saw things differently, to put it
mildly. The government does not "have to" put Parker's statement
in evidence, counsel said. "We're not putting any evidence in" on
the lack-of-knowledge issue, he added. And, he noted, the
prosecutor "can't put [the statement] in and then say I want to
get a particular instruction that otherwise would be
inappropriate." Focusing on the proposed instruction's language,
counsel complained that the judge could not use it because it would
have "the effect of shifting the burden of proof" on the questions
of Parker's knowledge and intent.
The judge reserved ruling on the matter, saying he wanted
to see what Parker said, "assuming [the statement] comes in." "I'm
going to go back and look at the case law on willful blindness,
when it's appropriate and when it isn't and give some more thought
to it," the judge added. The next day, the judge told the parties
that he intended to give a willful-blindness instruction.
Regardless of whether Parker claims a lack of knowledge, the judge
ruled, his statement — if it is as represented by the government
— "suggest[s] a conscious course of deliberate ignorance," and the
charge "as drafted does not suggest in any way that an inference
- 26 -
of knowledge is mandated." Later that morning, the government —
without objection — introduced the statement.
The government rested its case that same day. The
defense, in turn, rested too — without calling any witnesses. The
attorneys then made their closing arguments. And the judge gave
the final charge to the jury.
Pertinently for our purposes, the judge instructed the
jury that it "may infer" Parker "had knowledge of a fact if" it
found Parker "deliberately closed his eyes to a fact that otherwise
would have been obvious to him." "[T]o make such an inference,"
the judge explained, the jury had to "find two things: [f]irst,
that [Parker] was aware of a high probability of the fact in
question; and, [s]econd, that [he] consciously and deliberately
avoided learning that fact — that is to say, he willfully made
himself blind to that fact." And, the judge emphasized, whether
Parker "deliberately closed his eyes to [a] fact, and, if so, what
inference, if any, should be drawn," was "entirely up to you."
Also, the judge cautioned the jury that Parker "must have
consciously and deliberately avoided learning the fact" — neither
"[m]ere negligence, recklessness or mistake in failing to learn
the fact," nor "[t]he fact that a reasonable person in [Parker's]
position would have known the fact," sufficed. Plus, the judge
warned that a finding that Parker "made himself willfully blind to
- 27 -
one or more facts" was not alone "sufficient to find him guilty of
a crime." Rather, the prosecution had to "prove[] all of the
elements of the crimes as charged in the indictment" — something
the judge stressed after referring to Parker's presumption of
innocence and the prosecution's burden to prove beyond a reasonable
doubt the elements of each offense.
Parker's attorney renewed his objection to the willful-
blindness instruction after the judge gave the charge.
Arguments
Parker writes that the judge should not have given a
willful-blindness instruction because (a) he "introduced no
affirmative evidence" of his "lack of knowledge"; (b) the evidence
"did not suggest a conscious course of deliberate ignorance" on
his part; and (c) the charge relieved the government of its burden
to prove his "knowledge" of the illegal scheme. For its part, the
government argues that Parker waived the claim by not properly
developing it in his appellate papers. If not waived, says the
government, his argument is dead wrong on each front. And on top
of that, the government claims that even if the evidence did not
justify a willful-blindness instruction, any error was harmless
because "the evidence was sufficient for the jury to find that
Parker had actual knowledge of the firearms purchase scheme."
- 28 -
Standard of Review
Some older cases — as the government suggests — imply
that uncertainty surrounds what standard of review applies in
assessing a judge's decision to give a willful-blindness
instruction. See United States v. Appolon, 695 F.3d 44, 63 (1st
Cir. 2012). But recent cases have brought clarity to this area,
explaining, for example, that the standard of review depends on
the nature and circumstances of the particular claim of error.
See United States v. De La Cruz, 835 F.3d 1, 12 (1st Cir. 2016).
Here, as we said a second ago, Parker's claims turn on whether the
trial evidence supported a willful-blindness instruction and on
whether the issued instruction relieved the government of its
burden to prove his knowledge. And given our current caselaw,
these claims demand de novo review. See id.; see also United
States v. George, 841 F.3d 55, 65 (1st Cir. 2016).
Analysis
Because we can uphold the judge's willful-blindness
charge on the merits, we need not decide whether Parker waived the
issue because of inadequate briefing. To the merits then.
Lots of "criminal statutes require proof that a
defendant acted knowingly," our judicial superiors tell us.
Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).
But willful blindness is tantamount to knowledge. See United
- 29 -
States v. Rivera-Rodríguez, 318 F.3d 268, 272 (1st Cir. 2003).
And when applied, the so-called willful-blindness doctrine lets
prosecutors prove a defendant's knowledge by showing that he
"deliberately shield[ed] [himself] from clear evidence of critical
facts that are strongly suggested by the circumstances." Global-
Tech Appliances, Inc., 563 U.S. at 766. An oft-repeated rationale
for the doctrine is that one who acts like that is "just as
culpable" as one who has "actual knowledge" — in other words,
"persons who know enough to blind themselves to direct proof of
critical facts in effect have actual knowledge of those facts."
Id.
A willful-blindness instruction is appropriate only when
(a) the defendant alleges he lacked knowledge, (b) the evidence —
examined in the light most flattering to the prosecution — shows
he deliberately closed his eyes to the true facts, and (c) the
instruction, viewed in context, does not suggest that an inference
of knowledge is required rather than permitted. See, e.g., United
States v. Azubike, 564 F.3d 59, 66 (1st Cir. 2009); United States
v. Singh, 222 F.3d 6, 11 (1st Cir. 2000). We address each part of
this test in turn.
As for part (a), Parker's big argument is that he offered
"no affirmative evidence" of his "lack of knowledge." True, Parker
never testified at trial and so did not put his lack of guilty
- 30 -
knowledge directly in issue. But "that circumstance is not
dispositive." Singh, 222 F.3d at 11. Our cases have made crystal
clear that part (a) "of the test for a willful blindness
instruction does not depend on a showing of an explicit denial of
guilty knowledge out of the defendant's own mouth" — what matters
is whether "a practical evaluation of the record reveals that the
defense was pitched in that direction." Id. And that is the case
here.
To begin, Parker's post-arrest statement — admitted into
evidence without objection — suggests an attempt on his part to
convince the authorities that he had no idea what the people around
him were doing. And Parker offers no developed argument as to why
the judge could not rely on this evidence in his willful-blindness
ruling. More, the trial transcript shows that Parker staked his
defense on convincing the jury that he did not personally buy or
transport the firearms, and was not there when others bought or
talked about them — a defensive theme reflected by his counsel's
questions on cross-examination and by his counsel's comments
during closing arguments.10 And as the government's brief notes,
10
To take only one of the examples, defense counsel said
during closing that Parker "didn't buy any firearm, he didn't
transport it, it was never at his home." And even though a
fingerprint matching Parker's was found on an ammunition package,
counsel claimed that "[t]here's no credible evidence" that Parker
ever "touched" the ammo — or for that matter, the gun. Riddell
- 31 -
Parker's team implemented this strategy in the hopes of persuading
jurors that he had zero knowledge of what Scott, Riddell, and
LaMott were up to — a point Parker does not contest in his reply
brief.
Parker fares no better under the part (b) of the test.
The government offered direct evidence that he consciously averted
his eyes to the group's illegal escapades. We are again talking
about Parker's post-arrest statement in which he claimed that he
"didn't want to know about nothing" and that he left the room when
Scott went to the car to bring the guns into the Boston apartment
(Scott had said that he was going to get "stuff," but Parker knew
"stuff" meant "guns"). That is enough to satisfy this part of the
test. See United States v. Brandon, 17 F.3d 409, 452 (1st Cir.
1994) (finding no error in giving a willful-blindness instruction
where the defendant said he "didn't want to know anything about"
a "scheme to fraudulently represent the existence of down
payments").
Finally, regarding the test's part (c), Parker makes no
effort to explain why he thinks the judge's willful-blindness
instruction mandated an inference of knowledge. Maybe that is
because the judge took care to avoid giving the impression that
made "stuff up" — saying Parker did "this" or "that" — to curry
favor with the authorities, counsel stressed.
- 32 -
such an inference was mandatory rather than permissive. Recall,
for example, how the judge told the jurors that it was "entirely
up to you to determine whether [Parker] deliberately closed his
eyes to [a] fact, and, if so, what inference, if any, should be
drawn." Add to this the other parts of the judge's final charge
(highlighted above) and we think Parker's claim that the
instruction improperly implied that a guilty-knowledge inference
was obligatory is a no-go. See Singh, 222 F.3d at 11 & n.4
(approving a nearly identical willful-blindness instruction);
United States v. Gabriele, 63 F.3d 61, 66-67 & n.6 (1st Cir. 1995)
(same); Brandon, 17 F.3d at 451-52 & n.72 (same).
The bottom line is that we see no reversible error with
this aspect of the case.11
FINAL WORDS
Our work over, we affirm Parker's conviction.
11 Given our holding, we need not take on the government's
other theories for why we should affirm the judge's instruction.
- 33 -