United States v. Monell , 801 F.3d 34 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1617
UNITED STATES OF AMERICA,
Appellee,
v.
ERNESTO MONELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Kayatta, Selya, and Dyk*,
Circuit Judges.
Jonathan Shapiro, with whom Harley C. Racer and Shapiro,
Weissberg & Garrin, LLP, were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
September 2, 2015
* Of the Federal Circuit, sitting by designation.
KAYATTA, Circuit Judge. Ernesto Monell ("Monell")
appeals from his conviction and sentence for one count of being a
felon in possession of a firearm and ammunition and for one count
of possessing with intent to distribute cocaine base. His primary
challenge on appeal is to the warrant used by police to search his
apartment. Monell also raises several other issues from his trial
and sentencing. After careful consideration, we affirm the
district court's judgment in full.
I. Background1
On February 16, 2012, police officers of the Fall River,
Massachusetts, Police Department, executed a warrant to search an
apartment suspected of belonging to a man known to the officers
only as "Ness." Inside the apartment, officers found Monell, who
matched the physical description of "Ness." One of the officers
witnessed Monell placing a handgun on top of a refrigerator as the
officers broke down the apartment door. After arresting Monell,
officers seized the loaded handgun on the refrigerator, along with
a dismantled shotgun, two shotgun rounds, 37 small bags of crack
cocaine, digital scales, and materials used as drug packaging.
Officers also found, among other items, a Massachusetts driver's
license for Ernesto Monell, envelopes addressed to "Ernesto" but
1 We provide only enough background to frame the issues on appeal,
reserving a fuller recitation of the facts relevant to each issue
for our subsequent discussion of that issue. See United States v.
Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015).
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containing letters written to "Ness," photographs of Monell with
members of the Bloods street gang, and three cell phones.
A grand jury issued an indictment charging Monell with
being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1) (count one) and possession of
cocaine base with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) (count two). Monell filed several unsuccessful motions
before trial, including a motion to suppress evidence seized from
the apartment, a motion to reconsider the denial of the initial
motion to suppress, and a motion in limine to preclude the
testimony of the prosecution's proposed expert witness on drug
distribution.
During the six-day trial, the government introduced many
of the items seized during the search to establish that Monell
lived in the apartment and that he possessed the handgun,
ammunition, and drugs. The government also put on an expert on
drug distribution. In his defense, Monell argued that the
government failed to establish that he, and not someone else living
in the apartment, possessed the gun, ammunition, and drugs. To
support his theory, Monell called his mother as a witness, who
testified that she once visited Monell at the apartment, where she
saw other individuals who remained in the apartment after she left
with Monell.
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The jury convicted Monell of both counts. The district
court sentenced Monell to 262 months in prison on count one and
240 months on count two, to be served concurrently. In this timely
appeal, Monell challenges (1) the denial of his motion to suppress;
(2) the government's peremptory strike of an African-American
juror; (3) the testimony of the government's expert witness on
drug distribution; (4) the potential admission of rebuttal
evidence if Monell called one of his proposed witnesses; and (5)
his sentence.
II. Analysis
A. Motion to Suppress Evidence from the Apartment
Monell renews his challenge to the search warrant,
claiming that the warrant lacked probable cause, and that the good-
faith exception to the exclusionary rule should not apply. His
argument relies primarily on a discrepancy between the criminal
conduct described in the supporting affidavit (illegal use of a
firearm) and the items to be searched for (evidence of illegally
possessed firearms). In reviewing the denial of a motion to
suppress, we review the district court's ultimate probable cause
and good faith determinations de novo. United States v. Brunette,
256 F.3d 14, 16-17 (1st Cir. 2001). We review the district court's
factual findings for clear error. United States v. Woodbury, 511
F.3d 93, 96 (1st Cir. 2007).
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1. Relevant Background
On February 16, 2012, Detective William Falandys
("Detective Falandys") applied for and received a no-knock warrant
to search apartment number four in a multi-unit dwelling at 696
North Main Street in Fall River. The primary evidence in support
of probable cause for the search came from two confidential
informants, whose information was set forth in Detective
Falandys's attached and incorporated affidavit. The first
confidential informant ("CI-1") had previously provided
information that led to at least two arrests and the seizure of
marijuana and cocaine. In the week before the warrant application,
CI-1 had given Detective Falandys the following information about
the resident of apartment four at 696 North Main Street (known to
CI-1 only as "Ness"):
 Ness "is a member of the Bloods [s]treet gang";
 Ness "has threaten[ed] individuals in the area to further his
gang[']s activity";
 Ness "was involved in an incident where 'Ness' struck an
individual with a firearm";
 Ness possessed a shotgun, rifle, and bulletproof vest;
 Within the previous 72 hours, CI-1 had seen "two rifle type
firearms against a wall in the apartment."
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CI-1 also showed Detective Falandys the apartment building and
described the location of apartment four within the building, which
was later confirmed by another officer.
The second confidential informant ("CI-2") had spoken to
another police officer, who relayed CI-2's information to
Detective Falandys. The affidavit provided no information about
CI-2's track record as an informant. Within the prior week, CI-2
had seen someone named "Ness" "point a firearm at an individual in
the area of 696 North Main Street." Both CI-1 and CI-2 gave
similar physical descriptions of "Ness," though they did not
provide his full name.2 Detective Falandys stated that he had
"exhausted all means necessary to identif[y] the identity of 'Ness'
without compromising this investigation."
Detective Falandys also listed his law enforcement
training and experience, primarily as a narcotics investigator,
including experience "cultivat[ing] confidential informants" and
"participat[ing] in the execution of numerous (no less than two
hundred) search warrants." Based on his training and experience,
and the information from the CIs, Detective Falandys "believe[d]
firearms arms [sic], are being stored in apartment 4." The
2 CI-1 described "Ness" as a "light skin black male, approximately
6'0 tall between 190-200 lbs" who wore eyeglasses. CI-2 described
"Ness" as a "black male, approximately 6'0 tall between medium
build [sic] with wire frame glasses."
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magistrate signed the warrant, and Detective Falandys executed the
search warrant later the same day.
Before trial, Monell filed a motion to suppress evidence
found in the apartment on the basis that the warrant was not
supported by probable cause. The district court denied the motion.
The court concluded that the affidavit furnished probable cause
that the search would uncover evidence of the Commonwealth crimes
of assault with a dangerous weapon and use of a firearm during
commission of a felony, although the district court acknowledged
that "the evidence here was thin," and only enough for "a
borderline or marginal case from a probable cause standpoint."
The district court also found that the good faith exception to the
exclusionary rule would apply in any event.
After a change of defense counsel, Monell filed a motion
to reconsider the suppression ruling. In response to further
briefing, the district court revised its earlier ruling. The
district court determined that the search warrant was not supported
by probable cause because it authorized a search for evidence of
a crime for which probable cause was lacking: illegal possession
of firearms. In particular, the affidavit contained no information
that Monell was prohibited from possessing firearms. The district
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court concluded nonetheless that the good faith exception applied,
and therefore denied Monell's motion.3
2. Analysis
We begin our analysis by rejecting Monell's contention
that the warrant affidavit did not adequately establish the
reliability of the information supplied by the two confidential
informants. CI-1 had previously provided information found to be
accurate in at least two other arrests. See United States v.
Schaefer, 87 F.3d 562, 566 (1st Cir. 1996) ("[S]uch an indicium of
reliability may itself be sufficient to bulwark an informant's
report."). Though the officer's affidavit did not provide a track
record for CI-2, the mutual corroboration of the two CIs' stories-
-the location of the events, the physical description of "Ness,"
and the firearm-involved nature of the activity--served to bolster
the reliability of the information provided by each of them. See
id. ("[C]onsistency between the reports of two independent
informants helps to validate both accounts.").
3 In addition to assault with a dangerous weapon, the government
argues that the affidavit supported probable cause of two other
crimes. The first is possession of a firearm during commission of
a felony under Mass. Gen. Laws ch. 265, § 18B, though the
government does not articulate which felony it thinks Monell
committed. The second crime, mentioned for the first time in a
footnote in the government's brief, is illegal storage of a firearm
under Mass. Gen. Laws ch. 140, § 131L. For simplicity, we focus
our treatment not on these two crimes, but on assault with a
dangerous weapon.
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That brings us to the substance of the facts collectively
supplied by the two informants. As the district court observed,
those facts supplied probable cause to believe that a person named
"Ness" residing in apartment four at 696 North Main Street had
committed assault with a firearm. See Mass. Gen. Laws ch. 265,
§ 15B; Commonwealth v. Melton, 763 N.E.2d 1092, 1096 (Mass. 2002)
(crime of assault with a dangerous weapon consists of attempted
battery or immediately threatened battery perpetrated by means of
a dangerous weapon). Accordingly, a magistrate would have had a
substantial basis to think that the affidavit supported probable
cause to search for evidence of assault with a dangerous weapon in
apartment four. See United States v. Joubert, 778 F.3d 247, 252
(1st Cir. 2015) ("The reviewing court's duty is 'simply to ensure
that the magistrate had a substantial basis for concluding that
probable cause existed.'" (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)); United States v. Feliz, 182 F.3d 82, 86 (1st
Cir. 1999) ("A warrant application must demonstrate probable cause
to believe that (1) a crime has been committed . . . and
(2) enumerated evidence of the offense will be found at the place
to be searched . . . ."). And such evidence would plainly include
guns--whether legally possessed or not--and evidence of access to
guns.
The warrant as issued did indeed authorize a search for
guns "used as the means of committing a crime." The complication
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that gives rise to the main thrust of this appeal is that the
warrant authorized a search only for "illegally possessed" weapons
and evidence that would show "Ness" had such weapons. In this
respect, the warrant was less broad than it might have been. That
diminished breadth, moreover, was a product of Detective
Falandys's apparent--and mistaken--belief that the facts reported
by the confidential informants established probable cause to
believe that "Ness" committed the crime of illegally possessing a
gun. That apparent belief was clearly wrong because there was no
evidence at the time that "Ness" had no right to possess a gun, a
necessary element of the crime. See, e.g., 18 U.S.C. § 922(g)(1)
(unlawful possession of a firearm by a felon). In short, the
detective had probable cause to search "Ness's" apartment for
firearms that might bolster a charge of assault or battery with a
firearm, but he crafted the warrant application to search for
evidence of another crime (illegal possession of firearms) for
which the detective lacked any evidence of an essential element
(that "Ness" was unable to lawfully possess a gun).4
4 As requested in the application, the warrant authorized a search
of the apartment for the following items:
Any and all illegally possessed assault
weapons, machine guns, firearms, shotguns,
ammunition, feeding devices, and Any
paraphernalia, or instrumentalities, related
to the use, sales, manufacture, defacement,
and distribution, of said illegal weapons, and
all monies or records, printed or electronic,
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It is difficult to see why such an error in identifying
the criminal law that is violated by the conduct described in the
affidavit necessarily renders the warrant invalid. Cf. Whren v.
United States, 517 U.S. 806, 813 (1996) (arrest is valid if
supported by probable cause of offense X, even if the officer made
the arrest with the goal of finding evidence of offense Y). In
assessing the validity of a warrant, we generally apply an
objective test, asking whether the facts constitute probable cause
of a crime, rather than whether the officer thought they did. See
United States v. Silva, 742 F.3d 1, 8 (1st Cir. 2014) ("In
evaluating probable cause, a court looks 'at the objective facts,
not at the actors' subjective intent.'" (quoting United States v.
Sanchez, 612 F.3d 1, 6 (1st Cir. 2010)). It is even more difficult
to see why the officer's limitation on the types of guns and gun-
related evidence to be searched for should render the warrant
invalid. Nothing in the Fourth Amendment requires that a search
be conducted as broadly as possible.
In any event, we need not decide finally whether the
detective's error rendered the warrant invalid and the search
unlawful.5 Instead, we hold that, assuming the warrant was
derived from the illegal sales thereof, and
any personal papers or items to show standing.
5 We therefore need not address the government's argument that the
affidavit contained probable cause of assault with a dangerous
weapon or similar crime, and that "illegally possessed" in the
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invalid, the nature, effect, and cause of this particular type of
assumed invalidity are such as to render the exclusionary rule
inapplicable.
When a warrant issues without any probable cause of any
crime, it results in a search that violates the subject's privacy
and that would not have occurred but for the error. See Brinegar
v. United States, 338 U.S. 160, 176 (1949) (probable cause
principles "seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime").
Here, by contrast, had the error in labeling the criminal conduct
described in the affidavit as illegal possession rather than
assault with a deadly weapon not occurred, there still would have
been a search, and that search would have been valid. And
precisely that evidence which was found in the search challenged
here would have been found in a valid search predicated on the
crime of assault using a firearm.6
warrant could be read to mean firearms possessed while using them
illegally. See, e.g., United States v. Beckett, 321 F.3d 26, 32
& n.4 (1st Cir. 2003) (declining to decide whether warrant was
supported by probable cause and instead affirming on basis of good
faith under Leon).
6 Although the search warrant also authorized a search for evidence
related to illegal firearm "sales, manufacture, defacement, and
distribution," and records or money derived from illegal sales,
Monell does not argue that the officers found or seized any
evidence under these clauses.
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The Supreme Court has instructed that in order to
"trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it,
and sufficiently culpable that such deterrence is worth the price
paid by the justice system." Herring v. United States, 555 U.S.
135, 144 (2009); see also United States v. Leon, 468 U.S. 897,
920-21 (1984) (explaining that in most cases, "when an officer
acting with objective good faith has obtained a search warrant
from a judge or magistrate and acted within its scope . . . there
is no police illegality and thus nothing to deter"). No officer
could have had any reason to deliberately make the error made here.
The error arguably reduced the scope of the search from evidence
of any firearm that might have been used to assault or batter a
person to evidence of illegally possessed firearms only. To be
blunt, if Detective Falandys were to encounter the exact same
situation tomorrow, having first read our discussion of the
deficiencies of the warrant, his likely reaction would be to draft
a broader description of the items to be searched for, not a
narrower one. See Horton v. California, 496 U.S. 128, 138 n.9
(1990) ("If the police have probable cause to search for a
photograph as well as a rifle and they proceed to seek a warrant,
they could have no possible motive for deliberately including the
rifle but omitting the photograph. Quite the contrary is true.
Only oversight or careless mistake would explain the omission
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. . . ." (quoting Coolidge v. New Hampshire, 403 U.S. 443, 517
(1971) (White, J., concurring and dissenting)). And the
exclusionary rule does not exist to punish such negligent, harmless
mistakes by law enforcement. See Herring, 555 U.S. at 144 ("[T]he
exclusionary rule serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or systemic
negligence."). Similarly, our holding gives no other officer any
incentive to describe inaccurately a crime for which there is
probable cause so as to obtain a warrant that casts no more broadly
than would a properly targeted warrant. In short, were we to
invoke the exclusionary rule in this case, we would neither deter
culpable conduct nor reduce the incidence of intrusions that should
not occur. Exclusion of the evidence found in such a case would
therefore impose a price on the justice system in return for no
meaningful gain in deterring the occurrence of searches that should
not be conducted. See Davis v. United States, 131 S. Ct. 2419,
2427 (2011) ("For exclusion to be appropriate, the deterrence
benefits of suppression must outweigh its heavy costs.").
Monell's only rejoinder is to point to case law like our
recent decision in United States v. Cordero-Rosario, 786 F.3d
64(1st Cir. 2015), ordering the exclusion of evidence of child
pornography seized under a warrant. In that case, we held that an
officer's bald assertions that he was investigating "lewd acts,"
and that his investigation and interview with an injured minor led
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him to believe the defendant stored pornography on his computer,
did not justify a search of the defendant's apartment for
pornography (illegal or otherwise). Id. at 70, 72-73. The
affidavit suffered from "glaring deficiencies": there was simply
no nexus between the crime made out in the affidavit and the object
of the search (the defendant's computer), nor was there even
probable cause to believe that the defendant engaged in any crime.
Id. at 71-72. Accordingly, there was no basis at all to have
searched the suspect's apartment or seized the computer. Id. at
72-73. Here, by contrast, the facts described in the affidavit
provide probable cause to believe that a crime involving gun use
had occurred, and that some evidence related to that crime was in
"Ness's" apartment.
For these reasons, we agree with the district court that,
assuming the invalidity of the warrant, the good-faith exception
to the exclusionary rule applied to the evidence found in the
apartment.
B. Batson Challenge to Peremptory Juror Strike
Monell next claims that the prosecutor exercised a
peremptory juror challenge solely on the basis of race in violation
of his equal protection rights as articulated in Batson v.
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Kentucky, 476 U.S. 79 (1986).7 Batson established the following
three-part framework for evaluating such claims:
First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. Second, if
that showing has been made, the prosecution
must offer a race-neutral basis for striking
the juror in question. Third, in light of the
parties' submissions, the trial court must
determine whether the defendant has shown
purposeful discrimination.
Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citations
omitted) (citing Batson, 476 U.S. at 96-98). "The opponent of a
strike bears the burden of proof throughout the inquiry." United
States v. Girouard, 521 F.3d 110, 113 (1st Cir. 2008). Our review
is for clear error. Id. at 115.
The challenged strike was to Juror 19, who apparently
was the only African-American juror remaining in the venire at the
time of the strike.8 Juror 19 identified herself in response to
the district court's question to the venire about involvement in
criminal matters. She recounted the "horrible experience" of being
falsely accused of a hit-and-run and being "treated with total
7 Batson's holding applies to federal courts under the Fifth
Amendment's Due Process Clause. United States v. Girouard, 521
F.3d 110, 112 n.1 (1st Cir. 2008) (citing Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 616 (1991)).
8 The only other African-American juror in the venire was dismissed
by the court for cause when he admitted unequivocally that he would
have trouble being fair based on past negative encounters with the
police.
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disrespect by [a police] officer." The district court asked her,
"[a]re you confident you could be fair to both sides? Are you
hesitating?" Juror 19 admitted, "I'm hesitating. This experience,
just knowing that truths weren't told by officers. I'm just being
honest." Juror 19 later said that she would be fair to both sides,
and, when asked if she would "take [a police] witness as he or she
comes," responded affirmatively.
Later, the prosecutor used his second peremptory strike
on Juror 19 when she was one of fourteen potential jurors placed
in the jury box. Monell's counsel objected to the strike on the
basis that Juror 19 was "the only African-American person left, I
think, in the entire venire." Without making a finding that
defense counsel established a prima facie case of discrimination,
the district court invited a response. After accurately
summarizing Juror 19's negative experience with the police, the
prosecutor gave the following race-neutral reason for striking
Juror 19: "She was, as she said, wrongly accused, and we believe
she would have difficulty fairly judging the facts in this case
given there are a number of police officers, many of whose
credibility would be an important issue in this case given her own
experience." The district court then denied Monell's Batson
challenge:
I'm going to accept that as a facially neutral
reason for striking the juror. [Juror 19]
certainly in my judgment did express her views
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strongly about her experience and had some
hesitation, concluding that she could be fair
to both sides, and so I will accept the
challenge as not violative of Batson or the
Equal Protection Clause or otherwise illegal.
Assuming that Monell satisfied his initial burden of
making a prima facie showing of discrimination, we have little
trouble concluding that the district court did not clearly err in
ruling that Monell failed to carry his ultimate burden of showing
purposeful discrimination. Few trial lawyers would be eager to
seat a juror who initially and explicitly expressed hesitation
about her ability to be fair to counsel's side of the case.
Furthermore, in gauging both the degree of the juror's potential
bias and the credibility of the prosecutor's explanation, the
district court was in a far better position than are we. See
Snyder v. Louisiana, 552 U.S. 472, 477 (2008) ("[T]he trial court
must evaluate not only whether the prosecutor's demeanor belies a
discriminatory intent, but also whether the juror's demeanor can
credibly be said to have exhibited the basis for the strike
attributed to the juror by the prosecutor."). We discern no basis
in the record for finding fault with the district court's on-the-
ground determination.
Monell attempts to head off this conclusion by arguing,
based on two cases citing studies of racial profiling by law
enforcement, that allowing peremptory strikes on the basis of
negative interactions with police will disproportionately exclude
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African-American jurors. Monell did not make this argument below,
so we review it for plain error. Girouard, 521 F.3d at 115.
Neither the Supreme Court nor this court has held that disparate
impact alone can sustain a Batson challenge, and Monell gives us
no reason to think that the law nevertheless plainly so provides.
See United States v. Charlton, 600 F.3d 43, 55 (1st Cir. 2010)
(Lynch, C.J., concurring) (citing Hernandez v. New York, 500 U.S.
352, 362 (1991) (plurality opinion)); see also United States v.
Perez, 35 F.3d 632, 635 (1st Cir. 1994) ("[A]n explanation may be
'race neutral' even though it does not produce uniform results
across racial lines."). Moreover, the challenge here did not arise
simply because the juror reported a negative interaction with
police from which one might infer an unwillingness to believe other
police officers. Here, the juror herself was not certain that
such an inference would be inaccurate.9
C. Admissibility of Government Expert Testimony
1. Helpfulness to the jury
Monell next challenges the admissibility of testimony by
government expert witness Detective Gary Mercurio ("Detective
Mercurio") that evidence found in the apartment was consistent
9 Monell also attempts to contrast the government's strike of Juror
19 with his unsuccessful attempt to challenge a white juror, Juror
12, for cause. The contrast is an illusion, however: the
government also used a peremptory strike on Juror 12.
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with drug dealing. Monell's primary claim is that some of Detective
Mercurio's testimony did not "help the trier of fact to understand
the evidence or to determine a fact in issue," as required for
expert testimony by Federal Rule of Evidence 702(a). In
particular, Monell challenges the following four pieces of
Detective Mercurio's testimony: (1) that drug dealers "tend to
have other people rent the residences that they use . . . . so
that their name is not associated with that residence;"(2) that
drug dealers tend to have multiple cell phones "to protect their
identity;" (3) that "drug dealers want to protect their product
and their money so they use firearms to do that;" and (4) that a
piece of wood mounted against the apartment door was a barricade,
which drug dealers "use[] to stop other people from taking the
product from that dealer and also to slow down or stop law
enforcement."
Monell objected to the first three parts of Detective
Mercurio's testimony, but not the fourth part about the
barricade.10 Because Monell's claim fails even if he had objected
10The government argues that Monell did not preserve his objections
to any of the challenged parts of Detective Mercurio's testimony
because defense counsel merely stated "[o]bjection" without
articulating specific grounds. See Fed. R. Evid. 103(a)(1)(B).
We are not so sure that the grounds for the objection were not
"apparent from the context." Id. Monell filed a pretrial motion
in limine to exclude Detective Mercurio's testimony about "the
modus operandi of drug distribution on the basis of the evidence
seized" on Rule 702(a) grounds, which the district court denied
provisionally. Although the motion in limine alone did not
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to the barricade testimony, we treat his challenge to all four
pieces of testimony as preserved. We review preserved challenges
to the admission of expert testimony for abuse of discretion.
United States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001).
The challenged testimony helped the jury decide whether
Monell operated like a drug dealer, not a user, by taking steps to
conceal his activities and protect a large quantity of drugs. This
court has repeatedly found no abuse of discretion in the admission
of similar expert testimony to explain the typical methods of drug
dealers. See, e.g., United States v. Hicks, 575 F.3d 130, 144
(1st Cir. 2009) (officer's expert testimony that guns are prevalent
among Brockton drug dealers and about practice of concealing or
swapping firearms was admissible); United States v. Lopez-Lopez,
282 F.3d 1, 14 (1st Cir. 2002) (use of GPS and cell phones to
import drugs by sea). Detective Mercurio's testimony about
multiple cell phone use and using the names of others to rent
apartments was also directly relevant to address Monell's claim
that he only lived in the apartment sporadically, and that the
drugs and gun could have belonged to others residing in the
apartment. Given the "considerable latitude" the district court
enjoys in deciding whether expert testimony is helpful to the jury,
preserve Monell's claimed error, it did alert the district court
and prosecutor to his grounds for exclusion at trial. We need not
decide this issue, however, because Monell's claim of error fails
even if preserved.
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Sebaggala, 256 F.3d at 65, we cannot say that the district court
abused its discretion here.
2. Opinion on culpable mental state
Monell also argues that Detective Mercurio impermissibly
opined on Monell's culpable mental state, the intent to distribute.
See Fed. R. Evid. 704(b) ("In 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 or of a defense."). Monell takes issue with
the following exchange:
[Prosecutor]: All right. Detective Mercurio,
based on your review of all of the items in
this case, have you formed an opinion if the
items are more consistent with drug
distribution or personal use of the items?
Have you formed that opinion?
[Detective Mercurio]: Yes.
[Prosecutor]: What is your opinion?
[Defense counsel]: Objection.
[Court]: Overruled.
[Detective Mercurio]: Based on, you know, the
barricade on the door, the firearm being right
next to the door, you know, three -- you have
three digital scales, basically three
different size digital scales, a small one,
you know, like I said, you have the firearm,
you have 37, in my opinion, 37 bags, $40 bags.
No user would buy 37 $40 bags.
When the prosecutor asked Detective Mercurio to explain his last
comment, the detective clarified that it would not be economical
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for a user to buy that amount of drugs in street-level, rather
than bulk, quantities.
Monell now argues that the "[n]o user would buy 37 $40
bags" statement, combined with the recitation of the evidence of
distribution, amounted to an inadmissible expert opinion on his
mental state.11 Though Monell objected, it is clear from the
transcript that he objected on different grounds. Just before the
exchange quoted above, the prosecutor attempted to ask the same
question to elicit Detective Mercurio's opinion about drug
distribution, at which point defense counsel objected on the basis
that the testimony would be outside Detective Mercurio's
expertise, but did not object on Rule 704(b) grounds.12 Because
11In his reply brief, Monell also challenges on Rule 704(b) grounds
Detective Mercurio's testimony that certain pieces of evidence
were consistent with drug distribution. Because this argument
debuted in his reply brief, it is waived. Waste Mgmt. Holdings,
Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) ("We have held,
with a regularity bordering on the monotonous, that issues advanced
for the first time in an appellant's reply brief are deemed
waived.").
12 Defense counsel objected as follows:
Beyond the objections that his testimony that
that is not consistent with personal use, he
may have been qualified as an expert with
respect to whether this is consistent with
distribution, but he has no basis in his
education or training with respect to
addiction, with respect to use, and so for him
to offer an opinion that it's not consistent
with personal use goes beyond his expertise
and his training and for that reason should be
excluded.
- 23 -
Monell did not object on the basis he now presses on appeal, our
review is for plain error. See United States v. Iwuala, 789 F.3d
1, 5, 7 (1st Cir. 2015) (citing Fed. R. Evid. 103(a)(1)).
It is by no means obvious that Detective Mercurio's
comment that "[n]o user would buy 37 $40 bags" of crack cocaine
was an opinion of Monell's mental state. Rather it was simply an
observation that drug users do not buy large quantities in bulk in
street-level units. While it is true that a jury might in turn
infer something about Monell's purpose in possessing the drugs,
that is precisely how one proves intent in crimes where it is
relevant (and no admission is available). In short, if there was
error here, then it certainly was not plain. See United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001) (plain error review
requires, among other things, a "clear or obvious" error).
In one sentence of his reply brief, Monell repeats this objection
to Detective Mercurio's testimony. To the extent that Monell seeks
to challenge on appeal Detective Mercurio's qualifications, he
waived that challenge by waiting until his reply brief to raise
it, see Waste Mgmt. Holdings, Inc., 208 F.3d at 299, and then doing
so perfunctorily, see Rodríguez v. Municipality of San Juan, 659
F.3d 168, 175 (1st Cir. 2011).
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D. Admissibility of Rebuttal Evidence
Monell next claims that the district court erred in
ruling that the government could introduce recorded prison
conversations as rebuttal evidence if Monell called Tommy Nguyen
as a defense witness.
Shortly before trial, Monell filed a proposed witness
list containing three witnesses, including his girlfriend, Nicole
Connally. Three days later and one week before trial, Monell added
Nguyen as a fourth proposed witness. At the government's request,
the district court agreed to appoint counsel for Connally and
Nguyen because of the possibility that those two witnesses might
incriminate themselves by placing themselves in the apartment.
Before the end of the government's case-in-chief, the district
court conducted a voir dire of both Connally and Nguyen to
determine the scope of their testimony and whether they would
assert their Fifth Amendment privilege against self-incrimination.
Connally validly asserted her Fifth Amendment privilege, and the
district court excused her.
Nguyen, on the other hand, agreed to waive in part his
Fifth Amendment privilege, and refused to answer questions only
about whether he owned or directly possessed the guns, ammunition,
or drugs found in the apartment. During voir dire, Nguyen
testified that he had lived in the apartment at 696 North Main
Street for about two months before the police conducted the search;
- 25 -
that he allowed Monell to stay in the apartment five or six times;
and that Nguyen had seen the handgun, shotgun, and ammunition in
the apartment before Monell stayed there for the first time. He
also denied seeing Monell possess drugs in the apartment. Nguyen
stated that he and Monell were members of the Bloods street gang,
but denied knowing about Monell's role in the gang.
The district court deferred ruling on the admissibility
of Nguyen's testimony and any rebuttal evidence until later that
day. In the meantime, the government made it clear that, if Nguyen
testified, it would seek to introduce as rebuttal evidence an audio
recording of a June 15, 2013, prison conversation, recorded while
Monell was in pretrial detention, during which Monell seemingly
attempted to convince Connally, with whom he shared a child, to
take responsibility for the crime.13 The government argued that
13 The following excerpts from the transcript of the prison
conversation provide a flavor of the exchange between Monell and
Connally:
Monell: End of the day, you got to
think about it. Think. I will never
know. I will never opportunity [sic] for
shit. I will be 55, and I come home with
5 years parole. So, they gonna be on my
ass for 25. So, think. Don't think now.
Think about everything later on. Get it?
. . . .
Connally: . . . . Throw my name out
there. See what happens. If you haven't
already.
. . . .
Connally: I said what you feel deep down
inside when it comes to me about the
- 26 -
the recording supported an inference that Monell also pressured
Nguyen to testify falsely as a backup plan when Connally refused.14
Monell objected, arguing that the prison conversation between
Monell and Connally was not relevant to Nguyen's decision to
testify. Defense counsel also asked the district court to rule on
the admissibility of the rebuttal evidence before defense counsel
made a decision on whether to call Nguyen.
After the government finished its case-in-chief, the
district court ruled that it would admit Nguyen's testimony
notwithstanding his partial exercise of his Fifth Amendment
privilege against self-incrimination, "if this testimony plays out
as I expect it and as conducted in the voir dire." The district
situation.
Monell: That's not true. . . . It's
that I figured I would go to--I would do
what I would do for you if there's the
mathematics. This is about mathematics.
Like, last time I was out there, [Marvin]
said, "Listen, if we get pulled over, I'm
taking this for you." That's what my
people do for me.
. . . .
Monell: Like I said, end of the day,
you gotta do you now because if you don't
do it, I'm done. . . . 20 years? Do you
know what that is? You think one year
was a lot? You gotta do you now.
14In a transcript of a different prison conversation produced by
the government at sentencing, but not during the trial, Monell
told Connally, "I'm a let you go with all of that and I'm a move
on, I go to my plan B now that's all I can do." See infra
section II.E.
- 27 -
court also stated that if Nguyen testified, evidence that Nguyen
and Monell were members of the Bloods street gang could come in,
and "may open the door toward other gang-related evidence,"
including photographs and gang-colored clothing found in the
apartment. The district court explained that it would delay a
"final ruling" on the admissibility of the prison recording until
after Monell put on his other evidence, but the court indicated
that "if Nguyen does testify," the recording would be admissible.
The district court confirmed this inclination after Monell
presented his other evidence, predicting that "my ruling will be
that if [Nguyen] testifies, I will permit the government to
introduce the transcript or the tapes rather from June 15th, 2013."
The district court then made conditional rulings about redacting
statements in the recording about Monell's pretrial detention and
predicted prison sentence. After defense counsel conversed with
Monell, the defense rested without calling Nguyen as a witness.
On appeal, Monell argues that the recorded prison
conversation was inadmissible as irrelevant and unfairly
prejudicial, see Fed. R. Evid. 402, 403, and that the district
court's ruling to the contrary violated his Sixth Amendment right
to call witnesses in his defense. We do not reach the merits of
Monell's argument, however, because Monell waived his challenge by
not calling Nguyen as a witness.
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Our conclusion that Monell waived his challenge flows
from the reasoning in Luce v. United States, 469 U.S. 38 (1984).
In Luce, the defendant sought to challenge the district court's
denial of his motion in limine15 to prevent the government from
impeaching him, if he testified, with a prior conviction under
Federal Rule of Evidence 609(a). 469 U.S. at 39-40. The Supreme
Court held that the defendant's challenge was not reviewable
because he decided not to testify and the challenged evidence
therefore did not come in. Id. at 43. The Court identified
several reasons why this must be so: (1) the lack of factual
context made it difficult for a reviewing court to balance
probative value and unfair prejudice; (2) the district court's in
limine ruling was subject to change until the evidence was actually
offered; (3) the government ultimately might not use the
objectionable impeachment evidence; (4) the defendant might have
chosen not to testify even without the adverse ruling; and (5)
harmless error analysis would be an empty exercise because "the
appellate court could not logically term 'harmless' an error that
presumptively kept the defendant from testifying." Id. at 41-42.
Though Luce involved a challenge to a Rule 609(a) ruling, we have
15 The Court in Luce used the term "in limine" "in a broad sense
to refer to any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence is
actually offered." Luce, 469 U.S. at 40 n.2. Monell's objection
to the government's anticipated rebuttal evidence fits within this
broad definition.
- 29 -
extended its reasoning to other in limine evidentiary rulings,
including those under Rule 403. See United States v. Griffin, 818
F.2d 97, 104 (1st Cir. 1987).
The concerns animating Luce counsel against appellate
review here. We would need to make too many speculative
assumptions to rule on Monell's claim. First, and most
significantly, Nguyen's testimony might not have made it into
evidence. The district court made the admissibility of Nguyen's
testimony contingent on his trial testimony conforming to his voir
dire. The district court acknowledged the possibility that
Nguyen's actual testimony might differ from his voir dire: "I, of
course, don't know how precisely this is going to play out. I'm
sort of guessing how this is going to play out . . . ." Had Nguyen
refused to answer all or most of the government's questions on
cross-examination, the district court could have stricken Nguyen's
testimony. See United States v. Gary, 74 F.3d 304, 310 (1st Cir.
1996) ("When cross-examination on material issues raised on direct
examination is curtailed because of a witness's valid claim of
privilege . . . the trial court, in its discretion, may refuse to
permit that witness's testimony.").
Second, we would also need to assume that Monell would
have called Nguyen if not for the district court's ruling on the
recorded prison conversation. There are at least two other reasons
Monell might have had for keeping Nguyen off the stand. One would
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be to keep the lid shut on evidence about Monell's shared street
gang affiliation with Nguyen. The other was that, after hearing
Nguyen's voir dire, Monell might have decided that the jury would
not believe Nguyen, regardless of the government's cross-
examination or rebuttal evidence.16
Third, the government might have elected not to risk a
reversible appellate issue, and ultimately might have decided not
to introduce the prison recording. This possibility would have
become more likely if Nguyen's testimony suffered from internal
inconsistencies, or if the government was able to put in all of
the evidence of gang affiliation. Furthermore, had the government
introduced the recording, we do not know to what extent the
statements in the recording would have been redacted, which makes
it difficult to evaluate the degree of unfair prejudice Monell
would have suffered.
Appellate review of an evidentiary ruling, especially a
Rule 403 ruling, cannot bear this level of speculation. Thus, if
Monell wished to challenge the admissibility of the rebuttal
evidence, he should have called Nguyen, put his testimony before
the jury (and cemented it into the record), objected if and when
16 In particular, Nguyen's story during voir dire that he stayed
with a friend the night before the search, then, upon returning
the next morning, did not enter his own apartment, instead
remaining on the stairwell for several hours, could have struck
the jury as unbelievable.
- 31 -
the government sought to introduce the prison recording, and then
appealed the ruling if the district court overruled his objection.
See, e.g., Aguirre v. Turner Constr. Co., 582 F.3d 808, 814 (7th
Cir. 2009) ("When a judge makes a conditional ruling on evidence,
the party objecting to it must satisfy the condition if he wants
to preserve the issue for appellate review."). True, Monell would
have run the risk that we would affirm the admission of the
rebuttal evidence, but parties must engage in this sort of calculus
all of the time. Cf. Ohler v. United States, 529 U.S. 753, 757-
59 (2000) (discussing the choices defendants with prior
convictions face in deciding whether to testify).
Our approach to this issue presents no unfairness to
Monell or to other defendants in similar positions. Monell points
us to no trial management rule that required the prosecution to
tell Monell before he called Nguyen what the prosecution would do
on rebuttal. Nor did the district court have a duty to preview
its likely ruling. If we were now to rule that those discretionary
disclosures--all to Monell's benefit--also conveyed the advantage
of challenging an evidentiary ruling that was never actually made,
the likelihood of such disclosures would drop. We think it fairer
to all to presume that providing a defendant with more information
does not itself alter the rules on waiver to his advantage.
Monell points to cases in which we have suggested in
dicta that a defendant could avoid the Luce waiver rule by
- 32 -
screening the proposed testimony voir dire, thereby providing a
"verisimilitudinous enactment of an actual context," rather than
putting it before the jury. Griffin, 818 F.2d at 105 ("[C]ounsel
may request . . . in exceptional cases, that the actual testimony
be screened voir dire in the jury's absence." (emphasis added));
see also United States v. Nivica, 887 F.2d 1110, 1116 (1st Cir.
1989) (quoting Griffin). We do not rule out the possibility that
a sufficiently definite preview of the defendant's and the
government's proposed evidence could provide a "verisimilitudinous
enactment of an actual context," Griffin, 818 F.2d at 105, such
that the district court and appellate court can rule without the
disadvantages listed in Luce. Here, though, for all the reasons
we have already listed, no such enactment occurred (or was likely
possible).
Finally, our recent decision in United States v.
Jimenez-Bencévi, 788 F.3d 7 (1st Cir. 2015), does not dictate a
different result. In Jimenez-Bencévi, the district court required
the defendant to reveal to his proposed expert the defendant's
proffer of an admission of guilt during plea negotiations with the
government. Id. at 13-14. That proffer was protected by direct
use immunity granted in a written proffer agreement. Id. at 10.
The defendant did not call the expert, and on appeal sought to
argue that the district court violated his proffer agreement. Id.
at 14. We held that the defendant did not waive this challenge,
- 33 -
even though he did not put the expert on the stand. Id. at 15.
There are several reasons why Jimenez-Bencévi does not control
here. The ruling at issue in Jimenez-Bencévi unconditionally
required the defendant to violate his proffer agreement as a
precondition to calling his expert, rather than as a down-the-road
ramification of calling the expert. In addition, the district
court in Jimenez-Bencévi effectively excluded the defendant's
expert, because it concluded that "the expert would likely recant
upon learning of the proffer; and if he did not, the court would
not allow him to testify." Id. Simply put, in Jimenez-Bencévi it
was abundantly clear that because of the challenged ruling, the
defendant could not call his expert, and certainly could not do so
without violating his proffer agreement, whereas we are left to
guess how events would have transpired in the district court had
Monell called Nguyen.
E. Sentencing Challenge
Monell's final challenge is to his prison sentence. The
district court sentenced Monell to a total of 262 months in prison.
This sentence was at the bottom of the applicable guidelines
sentencing range of 262 to 327 months and well below the 324 months
recommended by the government. Monell's status as an armed career
criminal set his guidelines sentencing range by requiring an
offense level of 34 and criminal history category of VI. See 18
U.S.C. § 924(e); U.S.S.G. § 4B1.4.
- 34 -
The district court cited several reasons for imposing a
guidelines sentence above the statutory minimum: "an extensive
criminal record of violent offenses," and findings "that [Monell]
has gang membership and affiliation, that he has attempted to
obstruct justice, [and] that he engaged in serious post offense
conduct," namely, using a manufactured weapon during a prison riot
and attacking corrections officers with a mesh bag full of broken
tiles. Monell challenges on appeal only the finding that he
attempted to obstruct justice, arguing that "selecting a sentence
based on clearly erroneous facts" would be procedural error, Gall
v. United States, 552 U.S. 38, 51 (2007).
The district court found that Monell attempted to
obstruct justice by trying to persuade Connally and Nguyen to
testify falsely and accept responsibility for his criminal
conduct.17 To make the obstruction of justice finding, the district
court relied primarily on transcripts of recordings of prison
conversations between Monell and Connally, one of which was the
conversation the government intended to use as rebuttal evidence
at trial.18 Despite the sometimes cryptic nature of the
17The district court made the two findings of attempted obstruction
in the context of deciding that an obstruction of justice
enhancement would apply. See U.S.S.G. § 3C1.1. The obstruction
of justice enhancement ultimately had no effect on Monell's
sentence, but the district court later cited its obstruction
finding in selecting Monell's sentence within the guideline range.
18 In addition to the June 15, 2013, conversation the government
- 35 -
conversations, the transcripts support a reasonable inference that
Monell attempted to get Connally to claim responsibility for at
least some of the criminal conduct. See supra notes 13-14. Monell
argues that a reasonable interpretation of the conversations was
that Monell wanted Connally to tell the truth by claiming
possession of the drugs. Even if we assume such an interpretation
was reasonable, "[w]here there is more than one plausible view of
the circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous." United States v.
D'Andrea, 107 F.3d 949, 958 (1st Cir. 1997).19
In Nguyen's case, the district court's apparent finding
was that Monell persuaded Nguyen to inferentially accept
responsibility by testifying that he owned the apartment at issue
and that he had seen guns in the apartment prior to Monell's
staying there. While it is not clear that the district court relied
on this finding, even if it did, this finding, too, was not clearly
erroneous. The district court acknowledged "gaps in the story"
connecting Monell to Nguyen, but cited several pieces of evidence
had offered at trial, the government also produced a transcript of
a July 15, 2013, conversation between Monell and Connally during
sentencing proceedings.
19 Nor does it matter that defense counsel, in summarizing
Connally's expected testimony, stated an intention not to ask her
whether she engaged in criminal activity. What does matter is
Monell's attempt (even if unsuccessful) during the prison
conversations to pressure Connally into taking the fall for him.
- 36 -
supporting an inference of obstruction: the transcripts of the
prison conversations; Nguyen's late appearance as a witness;
Nguyen's "not credible" testimony on voir dire; and the shared
gang affiliation. In particular, in a recording of a second prison
conversation that the government cited for the first time during
sentencing, Monell told Connally: "what you went through was state
law[,] totally different animal but like I said I'm not gonna get
into it[.] . . . I'm a let you go with all of that and I'm a move
on, I go to my plan B now that's all I can do." (emphasis added)
Given that Monell had a backup plan if Connally would not take the
fall, and that Nguyen later showed up with a not credible attempt
to take the fall for Monell, a reasonable inference could be made
that Nguyen was "plan B," even if a competing inference is
possible. See id. The district court therefore did not rely on
a clearly erroneous factual finding in selecting Monell's
sentence.
III. Conclusion
For the foregoing reasons, we affirm Monell's convictions and
sentence.
- 37 -