United States v. Ocean , 904 F.3d 25 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 16-2468; 17-1183
UNITED STATES OF AMERICA,
Appellee,
v.
AKEEN OCEAN; JERMAINE MITCHELL,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Torresen, Chief U.S. District Judge.
Merritt Schnipper, with whom Schnipper Hennessy was on brief,
for appellant Ocean.
Seth Kretzer, with whom Law Offices of Seth Kretzer was on
brief for appellant Mitchell.
Renee M. Bunker, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.
September 11, 2018
 Of the District of Maine, sitting by designation.
TORRESEN, Chief District Judge. Following a joint jury trial,
Akeen Ocean and Jermaine Mitchell were convicted of a conspiracy
to distribute and possess with intent to distribute cocaine base,
in violation of 21 U.S.C. §§ 846 and 841(a)(1). The district court
sentenced Ocean to 120 months imprisonment with three years of
supervised release and Mitchell to 260 months imprisonment with
five years of supervised release. On appeal, Ocean claims that:
(1) there was insufficient evidence to convict him of the charged
conspiracy; (2) the admission of recorded jailhouse conversations
he had with a girlfriend who cooperated with the Government
violated his Sixth Amendment right to counsel; and (3) the
sentencing judge erred in calculating his drug quantity. Mitchell
argues that allowing two law enforcement witnesses to testify that
a particular substance was crack cocaine was both evidentiary error
and a violation of his Sixth Amendment right to confrontation.
Finding no merit in any of the appellants' claims of error, we
affirm both convictions and Ocean's sentence.
I. Akeen Ocean
A. Sufficiency of the Evidence
Because Ocean raised his sufficiency objection in a Rule 29
motion, the standard of review is de novo. United States v.
Ramírez-Rivera, 800 F.3d 1, 16 (1st Cir. 2015). In considering
the totality of the direct and circumstantial evidence, we draw
all inferences in favor of the government and consistent with the
- 2 -
verdict, and "we will reverse only if the verdict is irrational."
Id. (quoting United States v. Brandao, 539 F.3d 44, 50 (1st Cir.
2008)). Here, we recount the facts against Ocean on the conspiracy
count in the light most favorable to the verdict. United States
v. Rodriguez, 162 F.3d 135, 140 (1st Cir. 1998). We address the
facts pertinent to other claims later in the opinion.
Count One of the Indictment alleged that between January 1,
2010 and August 30, 2013 in the District of Maine, Defendants
Mitchell and Ocean, along with Jeffrey Benton, Christian Turner,
Willie Garvin, Torrence Benton, Jeremy Ingersoll-Meserve,
Jacqueline Madore, David Chaisson, Burke Lamar, and Wendell White,
conspired to distribute and possess with the intent to distribute
280 grams or more of cocaine base.
1. Factual Background
The evidence at trial established that Defendant Mitchell
oversaw the distribution of crack cocaine that was being
transported from New Haven, Connecticut to Bangor, Maine. Mitchell
was assisted in the Bangor area by Christian Turner and a man named
Rodrigo.
The distribution of the crack in and around Bangor depended
on a network of local addicts, including Defendant Ocean, his
girlfriend Christie, and others. For every four or five grams of
crack sold, each addict would earn a gram of crack for personal
use. The going rate to the addicts was about $100 per gram of
- 3 -
crack. By selling the crack to their friends and acquaintances,
the addicts provided the customer base for the operation and were
able to support their own habits.
Mitchell operated out of Christie's apartment on Court Street
in Bangor for two or three months in 2011. Mitchell then installed
Rodrigo at the Court Street apartment so that Mitchell could tend
to business elsewhere. Rodrigo assumed the role of doling out the
crack to the addict-dealers and collecting the money from them.
Mitchell came by frequently to collect the proceeds. During this
period, Ocean was staying several nights a week at Christie's
place.
Ocean was not pleased when Rodrigo moved into Christie's
apartment because he thought it would attract the attention of law
enforcement. Despite his displeasure with the arrangement, Ocean
continued to purchase crack from Rodrigo. Rodrigo testified that
Ocean was "high all the time, but he . . . also brought me a lot
of . . . clientele. He helped me out a lot." Because Ocean did
not like people coming to the residence, he conducted his sales
away from the Court Street apartment. By Christie's estimate,
during the five or six months that Rodrigo was at her residence,
Ocean purchased about 100 grams of crack from him. Three witnesses
testified that they purchased crack from Ocean, with one witness
estimating that he purchased approximately 40-50 grams of crack
from Ocean between 2010 and 2013.
- 4 -
Christie, who was not initially happy about Rodrigo living at
her apartment, grew even more tired of him after he began to short
her and deal directly to her customers. Rodrigo testified that at
some point Christie stopped coming home because she owed him and
other distributors money. Eventually, Rodrigo moved out of the
apartment and set up shop at the homes of other conspirators.
Ocean continued to help Rodrigo after he moved out. Rodrigo
testified that Ocean also bought crack directly from Turner from
time to time.1
The New Haven police conducted a taped interview with Ocean
in September of 2014. The recording was played at trial, and it
corroborated much of the witnesses' testimony. In that interview,
Ocean admitted that he had dealt with Rodrigo and Turner in Bangor
for about eighteen months in 2010 and 2011. He told the detectives
that his girlfriend introduced him to Rodrigo who was staying with
her. He explained that he was a "middleman" "running to support
my habit." He stated that the amounts he would buy from Rodrigo
would vary anywhere from two to twenty grams in a day. Although
he was not as familiar with Turner, Ocean acknowledged that he had
met him and that he could call Turner if Rodrigo was out of product.
Ocean described a falling-out with Rodrigo after Rodrigo stole
1 The supply chain was not always static. One witness who
regularly purchased crack from Ocean recalled a time when he
obtained crack from Mitchell to sell to Ocean.
- 5 -
from him. He admitted that he knew others who were involved from
Bangor, including Madore and a woman named Fern. He claimed that
he was not "in the loop" with Rodrigo and Turner, and he denied
ever traveling to Connecticut to reup with them. He summed up his
involvement like this: "I bought drugs from them and kept it
moving."
Finally, in recorded jailhouse conversations also admitted at
trial, Ocean, apparently referring to his interview with the New
Haven detectives, told Christie:
I said if that's what you call it, yeah I was a
middleman. . . . I say yeah, I might have got some money
out, I might have got a couple of dollars out of it, I
might have got some crack, that's where I fucked up.
2. Analysis
In framing his sufficiency challenge, Ocean concedes that the
evidence established a conspiracy to distribute cocaine base from
New Haven to Bangor and that he participated in a branch of this
venture. He claims that the government alleged a hub and spoke
conspiracy around Mitchell and Benton and argues that because he
had little interaction with either of them, there was insufficient
evidence to support his conspiracy conviction. He argues that the
evidence was insufficient to show that he joined the conspiracy or
shared the conspirators' goals because he sold drugs only to feed
his addiction, did not provide the type of support services that
other coconspirators did, and was indifferent to the goals of the
conspiracy and hostile to Rodrigo.
- 6 -
Although he never uses the term "variance," Ocean's opening
brief reads like a variance argument, i.e., that Ocean's activities
were not part of the broader charged conspiracy but some other
conspiracy. Ocean follows the typical analysis for a variance
claim, addressing the factors of commonality, overlap, and
interdependence. See United States v. Ortiz-Islas, 829 F.3d 19,
24 (1st Cir. 2016) (in determining whether evidence is sufficient
to show a single conspiracy, rather than several, courts look to
"(1) the existence of a common goal, (2) overlap among the
activities' participants, and (3) interdependence among the
participants" (quoting United States v. Paz-Alvarez, 799 F.3d 12,
30 (1st Cir. 2015))).
Not surprisingly, the Government responds by arguing that
there was no variance between the crime charged and the one proved
at trial. The Government points out that the Indictment did not
charge a broader "New Haven-to-Bangor" conspiracy but merely
charged a conspiracy to distribute cocaine base in the District of
Maine. Further, the Government counters, there was no allegation
that this was a hub conspiracy centered on Mitchell and Benton,
and in fact the charged conspiracy was either a hub with Rodrigo
at its center or a chain conspiracy. Either way, the Government
claims, it introduced sufficient evidence to convict Ocean of the
charged conspiracy.
- 7 -
In his reply brief, Ocean clarifies something that he had
hinted at in his opening brief. His claim is not just that the
evidence was insufficient to establish that he participated in the
broader conspiracy involving Mitchell and sources in Connecticut.
His claim is that because he did not share the goals of any of the
conspirators, he therefore could not have been convicted of either
the broader "New Haven-to-Bangor" conspiracy or the narrower
conspiracy in Bangor.
We agree with the Government that it was not required to prove
that Ocean was a participant in a broader conspiracy to distribute
drugs from Connecticut. That is not what the Indictment charged.
Moreover, viewing the record in the light most favorable to the
verdict, we find ample evidence that Ocean did participate in the
charged conspiracy.
To prove a conspiracy, the evidence must show:
(1) the existence of a conspiracy, (2) the defendant's
knowledge of the conspiracy, and (3) the defendant's
knowing and voluntary participation in the conspiracy.
"Under the third element, the evidence must establish
that the defendant both intended to join the conspiracy
and intended to effectuate the objects of the
conspiracy."
United States v. Paz-Alvarez, 799 F.3d 12, 21 (1st Cir. 2015)
(quoting United States v. Dellosantos, 649 F.3d 109, 116 (1st Cir.
2011) (internal citation omitted)). It is not necessary to "prove
that each defendant knew all of the details and members, or
participated in all of the objectives, of the conspiracy as long
- 8 -
as [the government] can show knowledge of the basic agreement."
United States v. Brandon, 17 F.3d 409, 428 (1st Cir. 1994).
Defendant Ocean concedes that a conspiracy existed and that
he knew of it. He contends, however, that the Government fell
short on the third element. We address Ocean's contentions that
he did not participate in the conspiracy because he sold crack
only to feed his addiction, his role was limited to reselling
crack, and he was indifferent to the goals of the conspiracy and
hostile to Rodrigo and others.
The fact that Ocean sold largely to feed his addiction rather
than to line his pocket does not mean that Ocean did not intend to
distribute drugs to others. The fact that a conspirator prefers
his spoils in product rather than cash provides no defense to a
charge of a drug distribution conspiracy. The question is whether
there was evidence that Ocean intended to distribute the drugs in
Maine. This conspiracy depended on addict-dealers who agreed to
sell four or five grams in order to obtain one gram for their
personal use. The structure incentivized the addicts to sell as
much as possible to increase the amount available for their own
consumption. The evidence at trial showed that Ocean was more
than a mere end-user. Ocean purchased and distributed drugs for
a period of about a year and a half, and he purchased as much as
20 grams in a day. Although Ocean was on the lower rungs of the
organization and he happened to be a user, the evidence established
- 9 -
that Ocean willingly helped out-of-state distributors move their
product in the Bangor area. It has long been established in this
circuit that individuals who seek to "further[] the distribution
of cocaine" share a "common goal." United States v. Bedini, 861
F.3d 10, 14-15 (1st Cir. 2017); Ortiz-Islas, 829 F.3d at 25
("existence of a common goal[] is broadly drawn and . . . satisfied
by evidence of a shared interest in furthering the distribution of
drugs" (internal quotation marks omitted)).
Ocean also claims that his limited role in the conspiracy and
the fact that he did not engage in transporting or housing other
conspirators shows that he was not a part of the conspiracy. Ocean
concedes that he purchased crack from Rodrigo and Turner and sold
it to his own customers. That conduct was his involvement, and
through it he knowingly facilitated the conspiracy to distribute
crack in Bangor. It is not "necessary that each coconspirator
participate in every aspect of the conspiracy." United States v.
Mangual-Santiago, 562 F.3d 411, 422 (1st Cir. 2009).
Ocean argues that he could not have shared the goals of
Mitchell and Rodrigo because he was hostile to their tactics.
Ocean highlights evidence of his displeasure with Rodrigo moving
into Christie's apartment and poaching her clients. He notes that
three individuals initially purchased cocaine base from him and
then started buying directly from Rodrigo, suggesting that Rodrigo
stole his clients too. But there was evidence that Ocean continued
- 10 -
to do business with Rodrigo even after Rodrigo moved out of
Christie's apartment. Despite his misgivings about some of the
tactics used by Rodrigo, Ocean was willing to stay connected to
him. "It is not far-fetched to assume that shifting alliances and
spouts of deception among members of [a drug trafficking
conspiracy] would be par for the course and, importantly, would
not necessarily undermine the overarching goals of the
conspiracy." United States v. Belanger, 890 F.3d 13, 31 (1st Cir.
2018); see also United States v. Negrón-Sostre, 790 F.3d 295, 309-
10 (1st Cir. 2015) (that individuals resolved their conflict in
favor of continued drug distribution indicated interdependence).
Ocean admitted he purchased drugs from Rodrigo and Turner and
described himself as a "middleman" who "bought drugs" and "kept it
moving." Ocean's own words are likely the best evidence that he
intended to join the conspiracy and shared its goals, but the
testimony of his coconspirators corroborated his account.
Christie estimated that in the course of about five to six months,
Ocean purchased about 100 grams of crack from Rodrigo and that he
sold the drugs to his own customers. Rodrigo testified that Ocean
brought him a lot of clientele. At least three witnesses testified
that they had purchased crack from Ocean, with one estimating that
over the course of the conspiracy he purchased 40-50 grams of crack
from Ocean.
- 11 -
The record contains sufficient evidence for a jury to conclude
that Ocean intended to join the conspiracy and intended to
effectuate its goals. Because the verdict is amply supported, the
sufficiency challenge fails.
B. Massiah Claim
Ocean's second challenge to his conviction involves the
admission of his recorded jailhouse conversations with Christie.
On June 14, 2016, after jury selection but before the start of the
trial, the prosecution learned that Christie had been meeting with
Ocean at the Somerset County Jail. On June 17, 2016, the
Government filed a supplemental trial brief stating it would
introduce five of the intercepted conversations between Christie
and Ocean at trial.
Ocean objected to the admission of this evidence on the
grounds that it violated his Sixth Amendment rights under Massiah
v. United States, 377 U.S. 201, 206 (1964). The trial court
allowed the parties to conduct a voir dire of Christie to develop
evidence of whether she had been acting at the Government's
direction when she met and talked with Ocean in the months before
the trial.
During voir dire, Christie testified that she participated in
a proffer with a prosecutor at the United States Attorney's Office
in Bangor on August 11, 2014. Based on her proffer, the Government
extended use immunity to Christie on September 17, 2014, and she
- 12 -
testified before the grand jury that day. In June of 2016, the
Government served Christie with a trial subpoena, and she met with
federal prosecutors on June 15, 2016, shortly before the trial
began. Between September 17, 2014 and June 15, 2016, Christie had
no contact with any representative of the United States Attorney's
Office. And, other than being served a trial subpoena, she had no
contact with anybody from the investigating agency during that
period.
At some point in early 2016, Christie was in the Somerset
County Jail on a burglary charge and she realized that Ocean was
also at the jail. Christie managed to give Ocean her phone number,
and he began to call her after she got out of jail. Christie
reached out to Ocean because he was a friend of hers: "We have
past. I care about him. It didn't seem to be a problem to me."
In a recorded call from April 15, 2016, Ocean told Christie to
come see him at the jail on Sunday, and she agreed that she would.
Christie stated that she did not go see Ocean because the
Government asked her to see him, and she did not tell the
Government that she had talked to Ocean.
After the voir dire, the trial judge found that there was no
evidence that the Government instructed Christie to contact Ocean
and no indication that she was acting on behalf of the Government.
"There's no indication of any conversation with the police from
which I could even begin to infer that she was acting as a
- 13 -
government agent." Based on these findings, the trial judge
rejected Ocean's claim of a Massiah violation. We review the trial
judge's findings of fact for clear error, and we find none. See
United States v. Nascimento, 491 F.3d 25, 50 (1st Cir. 2007). We
review de novo his constitutional conclusion based on the facts as
the trial judge found them. Id.
The Sixth Amendment provides, in pertinent part, that "the
accused shall enjoy the right . . . to have the Assistance of
Counsel for his defense." U.S. Const. amend. VI. The right to
counsel attaches upon the start of criminal judicial proceedings.
Brewer v. Williams, 430 U.S. 387, 398 (1977); Roberts v. Maine, 48
F.3d 1287, 1290 (1st Cir. 1995). Under the Massiah doctrine, the
Sixth Amendment right to counsel is violated when "evidence of
[the defendant's] own incriminating words, which federal agents
had deliberately elicited from him after he had been indicted and
in the absence of his counsel" are admitted during trial.2 Massiah,
2 Winston Massiah was indicted on a charge of possessing
narcotics and released on bail. Massiah v. United States, 377
U.S. 201 (1964). Unbeknownst to Massiah, a co-defendant named
Colson, also released on bail, began cooperating with the
government. Law enforcement installed a radio transmitter under
the front seat of Colson's car that allowed them to overhear
conversations in the car from a distance. When Massiah had a
conversation with Colson in his car, law enforcement overheard
Massiah make several incriminating statements. At Massiah's
trial, the law enforcement officer testified to the incriminating
statements, and Massiah was convicted. The Supreme Court reversed,
finding that the government's use of statements obtained by law
enforcement under these circumstances violated the defendant's
Sixth Amendment right to counsel.
- 14 -
377 U.S. at 206. Deliberate elicitation occurs when the government
"intentionally creat[es] a situation likely to induce [a
defendant] to make incriminating statements without the assistance
of counsel." United States v. Henry, 447 U.S. 264, 274 (1980).
"[A] successful Massiah objection requires a defendant to
show, at a bare minimum, that the person with whom he conversed
had previously been enlisted for that purpose by the authorities."
United States v. Wallace, 71 F. App'x 868, 870 (1st Cir. 2003).
Which party initiated the meeting at which the government obtained
the statements is "not decisive or even important" to the Massiah
analysis. Maine v. Moulton, 474 U.S. 159, 174 (1985). The
government has an "affirmative obligation not to act in a manner
that circumvents the protections accorded the accused." Id. at
176.
In Henry, relied on by the appellant, the Supreme Court found
that the government can "deliberately elicit" statements by
intentionally creating a situation likely to induce a defendant
into making incriminating statements. There, a paid informant
named Nichols was staying at the city jail where Henry had been
lodged on charges of bank robbery. 447 U.S. at 266. Nichols told
federal agents that he was sharing a cell with Henry, and the
agents instructed Nichols to keep his ears open but not to question
Henry about the robbery. Id. Ultimately, Henry made incriminating
statements to Nichols about his involvement in the robbery, and
- 15 -
Nichols was allowed to testify about those statements at Henry's
trial. Id. at 267. The Supreme Court found three factors
important in its analysis of whether Henry's jailhouse statements
were deliberately elicited. Id. at 270. First, the government
had engaged Nichols as a paid informant for over a year and only
paid him for useful information; second, Henry was unaware that
Nichols was anything more than a fellow inmate; and third, Henry
was in custody and under indictment when Nichols engaged him in
conversation. Id. The Court concluded that the agents
"intentionally creat[ed] a situation likely to induce Henry to
make incriminating statements without the assistance of counsel,"
in violation of his Sixth Amendment rights. Id. at 274.
This case is a far cry from Henry, and it is distinguishable
on two of the factors mentioned above. First, although Ocean
contends on appeal that Christie was a government agent, the trial
judge found otherwise, and that finding is supported by the record.
The Government did not instruct Christie to visit Ocean or to
report back what she learned from him. Christie had no contact
with the Government between her testimony at the grand jury in
September of 2014 and June of 2016, when she was served with a
trial subpoena. Christie visited Ocean of her own volition because
he was a friend. She did not advise the Government that she had
visited him. Although Christie testified under a grant of
- 16 -
immunity,3 there was no evidence of any agreement by her to elicit
information from Ocean or to work as a Government informant.
"[T]he Sixth Amendment is not violated whenever -- by luck or
happenstance -- the State obtains incriminating statements from
the accused after the right to counsel has attached." Kuhlmann v.
Wilson, 477 U.S. 436, 459 (1986) (quoting Moulton, 474 U.S. at
176).
Beyond his claim that Christie acted as a government agent,
Ocean contends that the Government made him more susceptible to
self-incrimination by detaining him pretrial, thus creating this
situation and its consequences. Under this theory, however, any
pretrial detainee who has made an incriminating statement that
comes to the attention of authorities would be able to establish
a Sixth Amendment violation. Further, it was the court, and not
the Government, that made the decision to detain Ocean pending his
trial, and the court's decision to detain Ocean had nothing to do
with putting him in a position where he was more likely to
incriminate himself.
As for the second Henry factor, Ocean knew that Christie had
immunity and had been subpoenaed to testify in his trial. Neither
of the defendants in Henry or Massiah knew that he was speaking to
3 Though Christie had a proffer agreement and testified under
a grant of immunity by the Government, she did not enter a
cooperation agreement with the Government and was not charged
federally in connection with the case.
- 17 -
someone who had cooperated with the Government. See Henry, 447
U.S. at 272; Massiah, 377 U.S. at 206; see also United States v.
Payton, 615 F.2d 922, 924 (1st Cir. 1980) ("unlike the situation
in Massiah . . . [the defendant] knew his interrogator was a
government agent"). Ironically, although Ocean complains that
Christie and the Government set him up, the transcripts reveal
that Ocean was attempting to convince Christie not to testify
against him. If anyone had a nefarious motive for the meeting
with Christie, it was Ocean, not the Government.
Where, as here, there is no evidence of an effort by the
Government to get incriminating statements from Ocean, the
Defendant has failed to make out a violation of his Sixth Amendment
rights. See Henry, 447 U.S. at 273 (citing Massiah, 377 U.S. at
206); see also Wallace, 71 F. App'x at 871 (jailhouse informant
had no "marching orders," and his testimony was therefore properly
admitted); Creel v. Johnson, 162 F.3d 385, 394 (5th Cir. 1998)
(informant who told officials the location of victim's body not an
"agent of the state" where no evidence existed of benefit to her
or of control or direction by government). Because we find no
Sixth Amendment violation, there was no error in admitting these
statements.
C. Sentencing
Finally, Ocean challenges the district court's drug-quantity
calculations at sentencing. Appellate review of factual findings
- 18 -
at sentencing is for clear error and review of the application of
the sentencing guidelines is de novo. United States v. Demers,
842 F.3d 8, 12 (1st Cir. 2016). The government has the burden of
proving drug quantity by a preponderance of the evidence, and
courts must make a "reasonable approximation" of drug quantity,
which "need not be precise to the point of pedantry." Id. (quoting
United States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009)); United
States v. Doe, 741 F.3d 217, 235 (1st Cir. 2013).
At sentencing, the judge set Ocean's base offense level at
30, accepting the probation office's conclusion that Ocean was
responsible for five grams, three days per week, for one year, for
a total of 780 grams. The probation office based its estimate on
Ocean's statement to the New Haven police that he obtained on
average 5-20 grams of crack daily for approximately twelve to
eighteen months.
Ocean challenges this calculation for failure to deduct the
cocaine base that he personally used from the total drug quantity.
The Government claims that because he withdrew this argument from
his sentencing memorandum, Ocean has waived it. See United States
v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005) ("A party
waives a right when he intentionally relinquishes or abandons
it."). In his sentencing memorandum, Ocean stated:
[t]he defendant has been provided with case law
including the First Circuit Court of Appeals case of
United States v. Innamarati, 996 F.2d 456 (1993) and
others and withdraws his assertion that those drugs
- 19 -
which would have been for personal use was [sic] not
part of the conspiracy. As prior cases tend to show,
because cocaine base is a scheduled I drug, excluding
personal use portion of the drug quantity for guidelines
sentence calculation does not seem to apply.
We agree that this constitutes waiver.
Finally, Ocean challenges the use of his statement to the New
Haven police to calculate drug quantity because of the "context in
which it was made." He argues that the New Haven officer's
admonition not to "minimize" constitutes encouragement to
overestimate. In addition, he argues that the broader record
contradicts his own estimation, citing to Christie's estimate of
the amount he received in a six-month period and his customers'
estimates of how much they bought from him. "When faced with
conflicting facts relating to drug quantity, a district court is
at liberty to make judgments about credibility and reliability."
Demers, 842 F.3d at 13. The court was at liberty to rely on
Ocean's own estimate as the most accurate assessment of drug
quantity. On this basis, we find no error.
II. Jermaine Mitchell
Ocean's co-Defendant Jermaine Mitchell raises two related
arguments in his appeal. First, he contends the trial judge erred
by allowing two law enforcement lay witnesses to testify that they
believed a substance they seized was crack cocaine. Mitchell says
that because the officers mentioned that laboratory reports were
created but the reports were not entered into evidence and the
- 20 -
underlying chemists who wrote the report were not called as
witnesses, the law enforcement lay witnesses "were bronzed with an
impermissible expert-witness gloss." Second, Mitchell argues that
this same testimony about the reports came in without an
opportunity for him to examine the chemists who prepared the
reports and thus amounted to a Sixth Amendment violation of his
right to confront the witnesses against him. In order to address
these arguments, it is necessary to provide some context.4
A. Background
1. Trooper Gacek
At the time of his testimony, Brian Gacek had been a New
Hampshire State Police trooper for over ten years. He testified
that on December 28, 2011, he stopped a car driven by Adam Brooks
for a traffic violation. Mitchell was in the passenger seat and
Fern Dowling was in the back seat. Trooper Gacek impounded the
vehicle and obtained a search warrant for the car. Anticipating
that Trooper Gacek was about to testify that he found crack cocaine
in the car, Defendant Mitchell's attorney asked to approach sidebar
and said,
the Government's never given us any sort of lab report
. . . that did an analysis and found that it was crack
cocaine.5 And I am not sure that this witness is
4 Mitchell also filed a pro se brief, raising four arguments
not presented in his counseled brief. We have considered them,
and find each to be without merit.
5 Mitchell does not argue on appeal that his non-receipt of the
lab reports constitutes a discovery violation.
- 21 -
qualified to testify that the chemical compound is crack
cocaine, so I object on that basis.6
The prosecutor responded that Trooper Gacek would be testifying
based on his experience and training that the substance appeared
to be crack cocaine. The trial judge overruled the objection
citing the fact that there was already sufficient evidence that
the substance was crack cocaine.7 The court indicated that if the
prosecutor laid a proper foundation, Trooper Gacek could say what
he thought the substance was. Trooper Gacek, after testifying
that he found a bag that contained a yellowish off-white, rock-
like substance, said that, based on his training and experience,
he believed the substance was crack cocaine.8 Trooper Gacek also
testified that he found a "crack pipe" in the vehicle.
On cross-examination, Ocean's attorney asked the trooper
whether he had tested the crack pipe, and the trooper responded
that he believed it was sent to the New Hampshire Police Forensic
Lab along with the other evidence. On further questioning by
6 At this point, Defendant Ocean's attorney also spoke up and
argued that a chemist at the Maine HETL lab had told him that "if
it is merely a white powder or a crystallized form . . . that under
no reasonable scientific level could that ever be determined that
it's cocaine versus any other drug."
7 Fern Dowling had already testified that they were
transporting crack cocaine when they were stopped by the police in
New Hampshire.
8 When the prosecutor offered a photograph of the bag of the
items seized from the car as Government Exhibit 36, both defense
counsel again objected citing the "same objection at sidebar as to
foundation and scientific."
- 22 -
Ocean's attorney, Trooper Gacek explained that all evidence in
drug cases would be sent to the lab. He indicated that he could
not recall what the results were, but that he knew that a lab
report was generated in this case. Defendant Mitchell's attorney
never raised an objection to any of this testimony.
2. Detective Quintero
Scott Quintero, a Maine State Police Detective, testified
that on August 29, 2013, while on patrol at the Portland bus
terminal, he approached and spoke with Mitchell. Mitchell
volunteered that he had some marijuana and that he might have some
other stuff in his pocket. Detective Quintero gave Miranda
warnings and asked Mitchell if he could remove the marijuana from
Mitchell's pocket. Mitchell consented. Detective Quintero
reached into Mitchell's pocket and removed the marijuana and a
small rock wrapped in cellophane. Detective Quintero, who had
been with the Maine State Police for seven and a half years at the
time of trial, testified that he recognized the rock as crack
cocaine based on its unique appearance and how it was packaged.
At this point, at sidebar, Ocean's attorney stated:
I am not aware of any testing done on this crack cocaine.
And I am not aware that the HETL lab has been listed as
a witness in this case. And therefore, I am going to
object under Rule . . . 701 with regard to whether or
not this can be characterized and introduced as crack
cocaine.
The prosecutor indicated that, like Trooper Gacek, Detective
Quintero was able to recognize the substance based on his training
- 23 -
and years of experience as a drug agent. Ocean's counsel explained
that because the substance had not been tested, it was prejudicial
to allow the detective to testify as to what he believed it was.
Defense counsel for Mitchell offered no objection or comment. The
trial judge overruled the objection on the ground that defense
counsel was free on cross-examination to inquire into any
infirmities in the Detective's knowledge and experience, and he
could also inquire as to whether any laboratory testing had been
done on the substance.
After questioning resumed, Detective Quintero testified that
Mitchell himself admitted that the substance was crack. Detective
Quintero then told Mitchell that he was going to arrest him, and
Mitchell volunteered that he had additional drugs by his ankle.
Detective Quintero retrieved a much larger bag of a substance from
the area of Mitchell's ankle. Detective Quintero testified that
he recognized the substance in the larger bag as crack cocaine
based on his training and experience, and that Mitchell again had
confirmed that it was.
On cross-examination, Ocean's counsel asked Detective
Quintero whether he sent the substance to a lab for testing.
Detective Quintero confirmed that he did send the substance for
testing, and he believed that results were received. Mitchell's
counsel offered no objection. When Ocean's counsel began to ask
- 24 -
about a particular chemist at the state lab, the prosecutor
objected on relevance grounds.
At sidebar, the prosecutor pointed out that Mitchell had
already pleaded guilty to possessing this crack cocaine in state
court. The trial judge then expressed concern about wasting the
jury's time if in fact Mitchell had not only admitted that the
substance was crack cocaine but had pleaded guilty to its
possession. Mitchell's counsel commented that people plead guilty
without necessarily having the scientific analysis of a substance.
Ocean's counsel reiterated his position that without scientific
testing it is impossible to tell whether a substance is crack
cocaine. The prosecutor indicated that he did not plan to bring
in the chemist who had conducted the test and pointed out that the
Government did not have to prove that the substance was in fact
crack cocaine because the defendants were charged with conspiracy
rather than the substantive count of possession with the intent to
distribute. The trial judge directed defense counsel to move
along.
B. Evidentiary Objection
Mitchell contends that Trooper Gacek and Detective Quintero's
opinions that the substance they each seized was crack cocaine
were inadmissible because the officers referred to laboratory
reports, but no corresponding reports were submitted into evidence
and no expert chemist was called as a witness to verify the
- 25 -
reports' contents. While he does not cite the rule, this argument
seems to be piggy-backing off the argument made at trial by Ocean's
counsel that the testimony violated Rule 701. Rule 701 addresses
opinion testimony by lay witnesses and requires that an opinion by
a lay witness be "(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 [the
rule on testimony by expert witnesses]." Fed. R. Evid. 701.
Except for an initial objection that Trooper Gacek lacked the
qualifications to testify that the compound seized was crack
cocaine with no follow-up objection after the prosecutor laid a
foundation, Mitchell's counsel raised no objections either to the
law enforcement officers' identification of the substance as crack
cocaine or to Ocean's counsel's questions about the existence of
lab reports. Belanger, 890 F.3d at 27 (individual defendants are
required to raise their own objections). And Mitchell's counsel
never raised at trial the argument that the report bolstered the
officers' testimony that he now presents on appeal. United States
v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005) (objection on one
ground does not preserve appellate review of a different ground).
Accordingly, review is for plain error. Plain error exists where
"(1) an error occurred (2) which was clear or obvious and which
not only (3) affected [the defendant's] substantial rights, but
- 26 -
also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Mangual-Santiago, 562 F.3d
at 427 (alternation in original). Plain error "is a difficult
hurdle to vault," and Mitchell has not cleared it here. See United
States v. Madsen, 809 F.3d 712, 717 (1st Cir. 2016).
Mitchell argues that because the officers testified that they
had seen lab reports, the implication was that the lab reports
confirmed the presence of cocaine base. This inference "bronzed"
the testimony of the lay law enforcement witnesses with an
impermissible expert-witness gloss, according to Mitchell.
There are two problems with this argument. First, as the
Government points out, it was Ocean's counsel, not the Government,
who brought up the lab reports. The lack of an objection by
Mitchell's counsel may well have been because he did not believe
that questions about missing lab reports were prejudicial to his
client. The prosecution's decision not to enter the reports and
the officers' inability to remember the results provided fertile
ground for closing arguments. Defense counsel were free to claim
that the Government would have introduced the lab reports if the
labs had confirmed that the substances were cocaine base. To allow
a defendant to raise a point on appeal that he may have
strategically decided not to raise at trial would invite
sandbagging by the defense. United States v. Taylor, 54 F.3d 967,
972 (1st Cir. 1995)(the raise-or-waive rule "precludes a party
- 27 -
from making a tactical decision to refrain from objecting, and
subsequently, should the case turn sour, assigning error (or, even
worse, planting an error and nurturing the seed as insurance
against an infelicitous result)").
Second, as Mitchell concedes, the identification of a
substance as a drug may be based upon the opinion of a
knowledgeable lay person. United States v. Walters, 904 F.2d 765,
770 (1st Cir. 1990)("Proof based on scientific analysis or expert
testimony is not required to prove the illicit nature of a
substance, and identification of a substance as a drug may be based
on the opinion of a knowledgeable lay person."); United States v.
Paiva, 892 F.2d 148, 155-57 (1st Cir. 1989)(finding a drug user
competent to give a lay witness opinion that a particular substance
perceived by her was a particular drug, based on her own experience
or knowledge). Mitchell is not contending on appeal that allowing
the officers to testify based on their experience and training
that they believed the substance was crack cocaine was error, but
rather that the references to lab reports -- invited, we note, by
the defense -- inappropriately bolstered the testimony. There was
ample evidence that the substance seized by each law enforcement
witness was crack cocaine. A witness testified that they were
carrying crack cocaine when they were stopped by Trooper Gacek in
New Hampshire. And Detective Quintero testified that Mitchell
himself admitted that the substance seized from him was crack
- 28 -
cocaine. In light of the significant evidence already in the
record, the incremental effect of the references to laboratory
reports (without even stating the results contained in the reports)
did not affect Mitchell's substantial rights or seriously impair
the fairness of the proceeding. Mitchell fails to demonstrate
error, let alone plain error.
C. Confrontation Clause
In addition to his evidentiary objection, Defendant Mitchell
makes a one-paragraph argument that Mitchell's rights under the
Confrontation Clause of the Sixth Amendment were violated when
Trooper Gacek and Detective Quintero testified that they had seen
lab reports.
It is now well established that the government cannot
introduce a report created to serve as evidence for a criminal
proceeding without making the author of the report available for
cross examination. Melendez-Diaz v. Massachusetts, 557 U.S. 305,
310, 329 (2009) (finding a forensic lab report testimonial and so
requiring testimony from a witness competent to testify to the
truth of the report's statement to admit the report); see also
Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011) (under the
Confrontation Clause, a lab report stating defendant's blood
alcohol concentration could be admitted only with testimony from
analyst who performed, observed, or certified report, unless that
- 29 -
person was unavailable and the defendant had the opportunity to
cross-examine her before the trial).
But here the Government did nothing of the sort. The
Government relied on the lay testimony of the officers,
knowledgeable drug users, and an admission of the Defendant to
identify the substance at issue. The Government never sought to
admit the lab reports and never sought to question the witnesses
about the existence of any such reports. Only Ocean's counsel
questioned the officers about lab reports, and Mitchell's counsel
offered no objection to this line of questioning. As above, review
of objections not raised by the appellant at trial is for plain
error.9 Here we find none.
III.
For the above stated reasons, we affirm Ocean's conviction
and sentence and affirm Mitchell's conviction.
9 Mitchell argues that although the Sixth Amendment was not
mentioned at trial, a Confrontation Clause objection was embedded
in a comment made by Ocean's counsel that the lab was not listed
as a witness in the case. Even assuming this comment can be
interpreted as an objection under the Sixth Amendment, no objection
was made by Mitchell's counsel. Belanger, 890 F.3d at 27
("individual defendants in a joint criminal trial are required to
raise their own objections unless the district court 'specifically
states that an objection from one defendant will be considered an
objection for all defendants'" (citation omitted)).
- 30 -