United States v. Obiora , 910 F.3d 555 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1569
UNITED STATES OF AMERICA,
Appellee,
v.
OBINNA OBIORA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Benjamin Brooks, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
December 11, 2018
KAYATTA, Circuit Judge. Following a jury trial, Obinna
Obiora was convicted of conspiracy to possess with intent to
distribute heroin, and was sentenced to 120 months' imprisonment,
followed by 36 months of supervised release. On appeal, Obiora
claims that a variety of alleged errors undermined the integrity
of the jury's verdict and the appropriateness of his sentence.
For the following reasons, we affirm.
I.
We first address Obiora's challenge to the sufficiency
of the evidence against him. We describe the record relevant to
such a challenge in the light most favorable to the jury verdict.
See United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir.
2015).
Federal law enforcement officers became aware of Obiora
through their investigation of a Boston heroin dealer named
Antoine. Agents obtained approval to wiretap six phones associated
with Antoine’s activities. In several of these intercepted calls,
Chukwuma Obiora -- Obinna Obiora's brother -- arranged for Obinna
Obiora to supply heroin to Antoine.x1 On October 3, 2015, the day
after one of these conversations, a law enforcement agent observed
a car registered to Obiora arrive at Antoine's home. Pole camera
footage showed a man who resembled Obiora exit the car, embrace
1 For clarity, we refer to Chukwuma Obiora as "Chukwuma" and
defendant Obinna Obiora as "Obiora."
- 2 -
Antoine, and then, with Antoine, disappear from view. Shortly
thereafter, the man resembling Obiora returned to the car and drove
off. Within about twenty minutes, Obiora called Antoine and
complained, "What just happened today is not necessary . . . we
don't need all that." For the next several weeks, Obiora
unsuccessfully tried to obtain payment from Antoine, who
apparently stiffed Obiora somehow in connection with their
October 3 interaction.
The federal government indicted Obiora for a single
count of conspiracy to possess with intent to distribute heroin in
violation of 21 U.S.C. §§ 846 and 841. Several co-conspirators
were indicted for additional drug and gun crimes. At trial, the
government's theory was that Obiora and Chukwuma were Antoine's
heroin suppliers until Antoine took their heroin without paying on
October 3. The jury found Obiora guilty of conspiracy with intent
to distribute heroin, and also found him responsible for at least
one kilogram of heroin.
On the first day of trial, the district judge informed
the parties about "one other thing," as follows:
I read it in the most recent Harvard Law Review
that the Sixth Circuit has just upheld one of
my colleagues who after a trial goes back to
the jury room and asks the jury individually
to just write down what they think the
sentence should be, and then he uses that as
some advice as to how to impose a
sentence . . . . I've been in touch with the
judge who has sent me all his information and
- 3 -
I propose to do that. You can read about it
in the most recent Harvard Law Review.
Nothing more appears to have been said about the matter
until Obiora's sentencing hearing, at which the district court
announced that it had conducted the jury poll:
I was interested to, in a procedure developed
by my colleague, Judge Gwin, in the Northern
District of Ohio, where after the verdict was
received, he informally asked the jury
privately to advise as to what sentences they
would impose and then he announces an average
and he takes that into account. That
procedure has been expressly confirmed in
United States v. Collins, 828 F.3d 386, a
Sixth Circuit case, 2016, and it's been
written up with approbation in the Harvard Law
Review at a note in Volume 130 at Page 793.
And I've resolved to follow that procedure and
I followed it in this case.
The average of the jury's suggestion is that
he should be sentenced to 19.4 years. That of
course is higher than constitutionally this
Court could sentence him, but I announce it.
The court conducted the poll ex parte and off record. At no point
did either party object to the court's administration of the poll
or to its consideration of the results.
At an otherwise unremarkable sentencing hearing, the
district court observed that the indictment did not charge that
the one-kilogram drug amount was foreseeable to Obiora. Therefore,
ruled the court, the ten-year mandatory minimum under 21 U.S.C.
§ 841(b)(1)(A)(i) could not be constitutionally applied to him.
Nevertheless, the court found that Obiora was responsible for one
- 4 -
kilogram of heroin, and calculated the Guidelines range based on
that amount. The court sentenced Obiora to 120 months'
imprisonment, which was the maximum sentence within the guidelines
range, to be followed by 36 months of supervised release.
II.
A.
Obiora appeals the denial of his motions for judgment of
acquittal based on the insufficiency of the evidence. See Fed. R.
Crim. P. 29(A). We review a district court's denial of a Rule 29
motion de novo, appraising the evidence in the light most favorable
to the government. See United States v. Appolon, 695 F.3d 44, 55
(1st Cir. 2012). "The verdict must stand unless the evidence is
so scant that a rational factfinder could not conclude that the
government proved all the essential elements of the charged crime
beyond a reasonable doubt." Id. (quoting United States v.
Rodríguez–Vélez, 597 F.3d 32, 39 (1st Cir. 2010)).
On appeal, Obiora argues that the government failed to
prove that any substance he delivered to Antoine was actually
heroin. But the government was under no obligation to do so.
Under the federal drug conspiracy statute, "the criminal agreement
itself is the actus reus." United States v. Shabani, 513 U.S. 10,
16 (1994). The government offered ample evidence, including phone
and text exchanges and witness testimony, that could persuade a
rational factfinder -- and did persuade the jury -- that Obiora
- 5 -
agreed to supply Antoine with heroin. The identity of the
substance later delivered is of no consequence in gauging the
record support for the conspiracy conviction. See, e.g., United
States v. Díaz-Castro, 752 F.3d 101, 107 (1st Cir. 2014) (evidence
of dealings with fake drugs was sufficient to uphold a conviction
for conspiracy to possess with intent to distribute a controlled
substance).
B.
Obiora next challenges several of the district court's
evidentiary rulings. We generally review the district court's
evidentiary decisions for abuse of discretion, see United States
v. Amador-Huggins, 799 F.3d 124, 128 (1st Cir. 2015), except to
the extent they turn on an interpretation of law, which we review
de novo, see Burgos-Montes, 786 F.3d at 114. Not all erroneous
evidentiary rulings require reversal. "When, as now, an alleged
error is not of constitutional dimension, we may affirm a
conviction so long as we have 'fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error.'" United States v. Sabean, 885 F.3d 27, 41 (1st Cir. 2018)
(quoting United States v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013)).
In assessing such rulings and the significance of any error, we
view the record "objectively." United States v. Nelson-Rodríguez,
319 F.3d 12, 23 (1st Cir. 2003).
- 6 -
1.
Obiora claims that the district court erred by admitting
certain lay opinion testimony of a cooperating witness named
William, who interpreted for the jury several recorded phone calls
between Antoine and his associates. William's interpretive
testimony was based on personal knowledge he gained during several
years in which he bought heroin from Antoine and assisted Antoine's
drug trade by mixing heroin with other substances. Some
representative examples of William's interpretive testimony
follow:
Recorded statements William's interpretations
Antoine: "Yo, if you could do "[I]t's clear that it's
something? A quick three hundo [referring to] 300 grams of
though." heroin."
Antoine: "Your man Gritty was on Antoine had robbed Chukwuma of
the list" his heroin.
Obiora: "I'm not yet on that A brick means one kilogram of
level they give me what, like a heroin.
brick at a time."
Obiora: "I've got one brick. I This refers to one transaction
gave you the first 3, ummm, you for 300 grams of heroin, then
took another 3 before this 400, another transaction for 300
you remember?" grams, then a transaction for
400 grams.
Obiora: "If I can't return it to Obiora was asking Antoine for
them, you know that's another payment for the drugs Antoine
problem, and I can't get nothing took.
else to bring you."
Obiora raises two main objections to William's
testimony: (1) William improperly drew conclusions that should
have been reserved for the jury; and (2) William's testimony
"smuggled in" inadmissible evidence.
- 7 -
The parties dispute whether Obiora properly preserved
these objections below. We need not decide whether Obiora's
contemporaneous objection that the conversations being interpreted
"were in English" and the "words were clear" was sufficient to
preserve the argument, because there is no reversible error even
under the abuse-of-discretion standard.
William's testimony is properly characterized as lay
opinion testimony under Federal Rule of Evidence 701. See United
States v. Valbrun, 877 F.3d 440, 443 (1st Cir. 2017) (testimony of
a member of a drug-trafficking ring interpreting recorded phone
calls is lay opinion testimony). Rule 701 allows lay opinion
testimony that is "(a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702." Although the district court has "considerable
discretion" in deciding whether to admit lay opinion testimony,
United States v. Valdivia, 680 F.3d 33, 51 (1st Cir. 2012), "the
rule requires exclusion 'where the witness is no better suited
than the jury to make the judgment at issue . . . .'" Valbrun,
877 F.3d at 443 (quoting United States v. Vázquez–Rivera, 665 F.3d
351, 363 (1st Cir. 2011)).
Obiora argues that William's testimony "should have been
limited to explaining the typical meaning of particular words used
- 8 -
by members of Antoine's conspiracy rather than interpreting the
overall meaning and import of the conversations between the parties
to the above-described phone calls." Reviewing the interpretative
testimony, for the most part we see no such neat dichotomy between
individual words and overall meaning. In each instance, a peculiar
usage of otherwise ordinary words (e.g., "do something") combined
with jargon (e.g., "hundo") generated the meaning of a sentence,
which William succinctly proffered. We do acknowledge that in
some instances the jurors may well have understood the gist of a
call once they knew its subject was heroin, but we see no reason
to require William to parse his interpretative testimony word by
word as if he were a foreign language dictionary rather than an
interpreter of a conversation. After all, this kind of
interpretive testimony is helpful not only because the witness can
define terms that are unfamiliar to the jury, but also because the
witness can "provide needed context to the events that were
transpiring." Valbrun, 877 F.3d at 444.
Obiora's alternative claim that William's interpretive
testimony became a way of "smuggling in inadmissible evidence" is
similarly unsuccessful. Cf. United States v. Albertelli, 687 F.3d
439, 447 (1st Cir. 2012). A lay witness may testify based on
personal knowledge to the meaning of words used in a conversation
to which he was not a party. See, e.g., United States v. Dunston,
851 F.3d 91, 97 (1st Cir. 2017) (holding "without serious question"
- 9 -
that a law enforcement officer with significant experience in
undercover drug investigations was qualified by his personal
experiences to testify to the meaning of terms used in the drug
trade). And as for William's non-interpretive testimony, there is
no indication that William was simply parroting what he had been
told by others, rather than relying on his personal knowledge.
2.
Obiora next argues that the district court abused its
discretion in admitting various out-of-court statements Antoine
made about the October 3 meeting. The district court ruled that
Obiora was engaged in a conspiracy with Antoine "up to and
including October 3rd when the heroin was taken from him," and
that any statements made before that day, and in furtherance of
the conspiracy, were therefore admissible under the hearsay
exemption for co-conspirator statements. See Fed. R.
Evid. 801(d)(2)(E)(statements made by a party's co-conspirator
during and in furtherance of a conspiracy are not hearsay).
However, the district court recognized that statements made after
the co-conspirators' apparent falling out on October 3 were not
made during or in furtherance of the conspiracy, and were therefore
not admissible under this exemption to the hearsay ban.
Nevertheless, the court declined to strike from the record three
sets of statements containing Antoine's description of the
October 3 meeting because the court was satisfied that the
- 10 -
statements were admissible under other hearsay exceptions. This,
Obiora argues, was reversible error.
We need not determine whether the admission of such
testimony was an abuse of discretion because any possible error
was harmless. The testimony at issue was extraneous. All three
sets of contested statements describe Antoine's failure to pay for
the heroin obtained at the October 3 meeting. Whether Antoine
paid or did not pay for the heroin when Obiora delivered it is
irrelevant to the central question of whether Obiora agreed in the
first place to distribute heroin to Antoine. Obiora argues that,
"while it is true that the fact of the 'robbery' itself and whether
or not Antoine paid for the heroin might be collateral, that does
not undo the prejudice caused by introducing the statements
identifying Chukwuma -- and by implication Obiora -- as the person
who delivered heroin to Antoine." However, the jury heard copious
other evidence pointing to Obiora as the person who delivered
heroin to Antoine -- including recorded conversations in which
Chukwuma and Antoine arranged the October 3 transaction; testimony
of a detective who observed Obiora's car arrive at Antoine's place
of business; surveillance footage capturing a person resembling
Obiora exit the car to interact with Antoine; and phone
conversations after the transaction in which Obiora demanded
payment from Antoine. Given this compelling evidence that Obiora
was dealing with Antoine, we are confident that "the judgment was
- 11 -
not substantially swayed" by the admission of Antoine's out-of-
court statement to that effect. United States v. Meserve, 271
F.3d 314, 329 (1st Cir. 2001) (quoting Kotteakos v. United States,
328 U.S. 750, 765 (1946)).
C.
Confronting Obiora's three claims of sentencing error,
we review challenged factual findings for clear error,
interpretations and applications of law de novo, and judgment calls
for abuse of discretion. See United States v. Nieves-Mercado, 847
F.3d 37, 42 (1st Cir. 2017). "[T]he linchpin of a reasonable
sentence is a plausible sentencing rationale and a defensible
result." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
1.
Obiora first challenges the district court's jury poll
experiment. Our treatment of this challenge rests in large part
on the standard of review triggered by counsels' silence below.
The district court told counsel, before trial, what the court
intended to do. The court's explanation was perhaps a bit short
of detail, but nevertheless provided more than enough information
to elicit reservations or inquiries. As best we can tell, both
counsel decided to roll the dice, apparently gauging the odds to
be favorable. The sources the district court referenced indicate
that a juror poll could well be expected to produce sentence
recommendations less severe than would the Guidelines. See United
- 12 -
States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016) ("With one
exception, every juror recommended a sentence less than half of
the five-year mandatory minimum accompanying defendant's
offenses."); Recent Case, Sixth Circuit Holds That Imposing A
Significantly Below-Guidelines Sentence Informed by A Jury Poll Is
Not Substantively Unreasonable. -- United States v. Collins, 828
F.3d 386 (6th Cir. 2016), 130 Harv. L. Rev. 793, 797 (2016).
Further research would have revealed a study, conducted by the
sentencing judge in Collins, suggesting that juries tend to
recommend sentences significantly below the Guidelines range. See
Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the
Federal Sentencing Guidelines Reflect Community Values?, 4 Harv.
L. & Pol'y Rev. 173, 187 (2010). So defense counsel in particular
had ample reason to withhold any objections that have only surfaced
now that the jurors were less merciful than expected. In short,
this is an instance of forfeiture, if not outright waiver.
Assuming forfeiture only, we review for plain error.
See United States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir.
2016). "Plain error review is not appellant-friendly. It 'entails
four showings: (1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
- 13 -
integrity, or public reputation of judicial proceedings.'" Id.
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
The government agrees with Obiora that the district
court's use of the juror poll was error. We agree and so hold. In
so concluding, we do not dispute that innovation has a role in
improving the courts' practices. For that reason, we have national
and local bodies, like the U.S. Sentencing Commission and the
Administrative Office of the U.S. Courts, tasked with considering
new ideas and sometimes conducting pilot projects. With greater
hands-on experience dealing with jurors and sentencing, trial
judges certainly are better positioned than we are to conceive of
innovations that may improve the sentencing process. But the ad
hoc implementation of any significant innovation, especially off-
the-record and ex parte, can leave circuit courts ill-equipped to
assess the legality, fairness, and efficiency of the experimental
practice. Here, for example, the docket contains no record of the
polling. We do not know how the jurors were asked and answered,
or even whether the average sentence recommendation was correctly
calculated. The parties cannot shed light on the polling
procedure, as they were excluded, albeit apparently with their
silent acquiescence.
Judging from the scant information available to us, we
see many reasons to doubt that any benefit can possibly be gained
from considering the results of such a poll in sentencing. There
- 14 -
is no indication that the jurors knew much of anything about
Obiora's background, history, or relevant characteristics. Yet,
arming the jurors with such information would likely result in a
contested hearing of some sort, which might not be worth the
effort, costs, and risks. Perhaps some type of jury polling might
provide information relevant to the work of policymakers like the
U.S. Sentencing Commission. See Gwin, supra, at 175–76 (arguing
that the Sentencing Commission should sample juror sentencing
opinions). But it is quite another thing to say that jurors'
opinions on punishment, unaided by context, should be the object
of a judge's attention in sentencing a given individual.
We therefore turn to the question of whether the error
was sufficiently obvious to satisfy the second prong of plain error
review. "With respect to matters of law, an error will not be
clear or obvious where the challenged issue of law is unsettled."
United States v. Goodhue, 486 F.3d 52, 57 (1st Cir. 2007). Our
court has never spoken to the jurors' role in sentencing in non-
capital cases. The Sixth Circuit has actually rejected a challenge
(albeit by the government) to consideration of the results of a
jury poll in sentencing. See Collins, 828 F.3d at 388–91. The
case law, in short, provides insufficient direction -- much less
holdings -- to label the error clear, at least where the poll is
- 15 -
taken with counsel's before and after acquiescence. Hence Obiora's
plain error challenge fails.
2.
Obiora next contends that the district court clearly
erred in determining that one kilogram of heroin was attributable
to him. In drug conspiracy cases, the quantity of drugs involved
largely determines the guideline sentencing range. See U.S.S.G.
§ 2D1.1 (sentencing table). In order to achieve procedural
reasonableness, a sentencing court must calculate the Guidelines
range using a reasonable approximation of the weight of the drugs
that are attributable to the defendant. See United States v.
Demers, 842 F.3d 8, 12 (1st Cir. 2016). We review drug quantity
calculations for clear error. See United States v. French, 904
F.3d 111, 123 (1st Cir. 2018). Obiora offers two reasons for
finding such error.
First, Obiora argues that the trial court erroneously
deemed itself bound by the jury's drug-quantity finding. To be
sure, the district court did note that the jury had found beyond
a reasonable doubt that a kilogram of heroin was attributable to
Obiora. And, on this issue, the jurors did indeed have the
relevant information. But contrary to Obiora's representation,
the district court recognized that "it's [the court's]
responsibility to make the finding as to drug quantity."
- 16 -
Second, Obiora claims there was insufficient evidence to
support the district court's finding by a preponderance of the
evidence that a kilogram of heroin was attributable to Obiora.
When reviewing a district court's drug-quantity determination,
"our job is not to see whether there is any view of the evidence
that might undercut the district court's finding; it is to see
whether there is any evidence in the record to support the
finding." United States v. Kinsella, 622 F.3d 75, 86 (1st Cir.
2010) (internal quotation marks omitted).
Here, such evidence comes in the form of a recorded phone
call, in which Obiora told Antoine, "I've got one brick. I gave
you the first 3, ummm, you took another 3 before this 400, you
remember?" Antoine responded, "yeah." Drawing on William's
testimony that a "brick" means a kilogram of heroin, the government
argues that this exchange demonstrates that Obiora and Antoine
engaged in three transactions totaling a kilogram of heroin: two
for 300 grams each, and one for 400 grams. Now, on appeal, Obiora
reads this double reference to 300 grams as "an instance of oral
repetition which referred to the same 300 grams." Perhaps, but
certainly where the second reference is to "another 3," the
district court need not have adopted Obiora's preferred reading,
especially when the remaining evidence pointed to a transaction
for a round kilogram of heroin.
- 17 -
3.
Obiora argues, finally, that the district court abused
its discretion by imposing a harsher sentence on Obiora than it
did on his co-defendants who were more culpable. But all of the
others pled guilty, and thus provide inapt comparators. See United
States v. Ayala-Vasquez, 751 F.3d 1, 33–34 (1st Cir. 2014).
III.
For the foregoing reasons, we affirm Obiora's conviction
and sentence.
- 18 -