United States v. Norris ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1842
UNITED STATES OF AMERICA,
Appellee,
v.
DOUGLAS NORRIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Ines McGillion, with whom Ines McGillion Law Offices, PLLC
was on brief, for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
December 28, 2021
KAYATTA, Circuit Judge. During the search of a Brockton,
Massachusetts apartment pursuant to a warrant, police found a gun,
ammunition, cocaine, and various drug paraphernalia. Douglas
Norris, identified as one of the apartment's residents, was
convicted by a jury of several contraband-possession offenses,
including being a felon in possession of a firearm. On appeal,
Norris raises four groups of errors. He claims that: (1) the
district court improperly instructed the jury on joint possession;
(2) the government presented insufficient evidence on the element
of possession for all counts; (3) lay opinion testimony from law
enforcement witnesses was improperly admitted at trial; and
(4) the government did not allege or prove, and the jury was not
required to find, that Norris knew of his status as a felon that
prohibited him from possessing a firearm, contrary to the Supreme
Court's decision in Rehaif v. United States, 139 S. Ct. 2191(2019). For the reasons that follow, we find no reversible error
and affirm Norris's convictions.
I.
A.
We begin, as did Norris's trial, with the apartment
search at the heart of this case. Because Norris has challenged
the sufficiency of the evidence against him, we recount the facts
in the light most favorable to the verdict. United States v.
McBride, 962 F.3d 25, 28 (1st Cir. 2020).
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In the early morning of June 20, 2017, the Brockton
Police Department's (BPD) Special Reaction Team (SRT) executed a
search warrant at Apartment 2A of a building on North Warren
Avenue. Upon entering the unit, the SRT encountered several
occupants, though not Norris. In the first bedroom, referred to
in the trial as "Bedroom 1," officers saw a woman identified as
Nakaita Brown and a baby. Elsewhere in the apartment, they found
a man named Jose Lora and his fiancée Adris Pimentel. All of the
occupants were escorted to the kitchen while the search proceeded.
In Bedroom 1, officers observed clothing they identified
as "adult male attire," including pants, shirts, and sneakers, as
well as boxes for sneakers in men's sizes 10.5 and 11. Many of
these articles were found and photographed within the bedroom's
closet. Additionally, hanging in the closet was a black backpack
that contained a loaded firearm, a plastic bag containing twenty
loose rounds of .9 millimeter ammunition, and two digital scales.
The backpack's front pocket contained a single .45 caliber round
of ammunition and three plastic bags containing substances later
determined to be cocaine hydrochloride and cocaine base. The gun,
ammunition, and magazine were swabbed for DNA, and the parties
stipulated that the lab identified a partial DNA profile
"consistent with a mixture of DNA from at least three individuals,"
at least one of whom was male and at least one of whom may have
been female.
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Officers also found within the closet another digital
scale with powder residue on it, a razor blade, some "cut baggies,"
a box of plastic sandwich bags, a metal object stamped with the
words "The Brick Press" -- which was identified as a piece of a
hydraulic press system (also called a "kilo press") used to pack
powdered drugs into a brick form -- and loose pieces of mail in
envelopes addressed to Norris.
Finally, one photograph of the closet depicts a hanging
black studded jacket, which was the subject of questions from
defense counsel at trial. The officers did not take the jacket
into evidence because they thought it had "no value," and, when
asked, the officers could not shed any light on whether the jacket
belonged to a man or woman.
From other rooms in the apartment, officers recovered
two additional plastic bags containing what was later identified
as cocaine and cocaine base respectively, a money counter,
additional scales, a rifle scope, a pistol magazine, and additional
components of the Brick Press.
After concluding the search, the officers left the
apartment around 6:30 or 7:00 A.M. and returned to the station.
Around 7:50 A.M., BPD Detective Brian Donahue revisited the North
Warren Avenue building to locate Norris, who had not been present
for the search. Detective Donahue saw Norris leave the property,
enter a gray Infiniti parked nearby, and drive away. Following in
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an unmarked car, Donahue called for a marked cruiser to stop
Norris. Once the Infiniti was stopped, Donahue approached the
vehicle and asked Norris for his name. Norris responded, "I'm the
one you're looking for."
Norris was charged in the operative superseding
indictment with four counts: being a felon in possession of a
firearm and ammunition (18 U.S.C. § 922(g)(1)); possessing a
substance containing cocaine base with intent to distribute (21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii)); possessing cocaine with
intent to distribute (18 U.S.C. § 841(a)(1)); and possessing a
firearm in furtherance of a drug trafficking crime (18 U.S.C.
§ 924(c)(1)(A)).
B.
Beyond the evidence described above, the government
offered at Norris's trial additional evidence concerning Norris's
connection with Apartment 2A. First, about six months earlier,
BPD officers had responded to a 911 call at Apartment 2A and
encountered Norris, Brown, and a baby. Norris then told the
officers that he and Brown had had a disagreement, that he had
disconnected the cellphone service maintained in his name, and
that Brown wanted to leave. Officers stayed while Brown packed
some things and left the apartment.
Then, on June 14, 2017 -- six days before the search --
Norris attended a housing court trial where he successfully
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defended against an eviction action for the second-floor apartment
at the North Warren Avenue address.
The next day, June 15, BPD Detective Gary Mercurio
conducted surveillance of the North Warren Avenue property and
observed Norris leave the building, get into and out of a gray
Infiniti parked around the corner, then walk back to the building.
Finally, on June 17, Lora and his fiancée Pimentel moved
into a bedroom -- designated throughout the trial as "Bedroom 3"
-- in Apartment 2A, after arranging with Brown to pay a portion of
the rent. Lora testified that Norris, Brown (who he knew as
"Coco"), and the baby were living in the apartment, in Bedroom 1,
when Lora and Pimentel moved in. In the three days that Lora lived
in Apartment 2A before the search on June 20, he saw Norris use
Bedroom 1 to change clothes. Norris frequently left the apartment,
but Lora did see Norris at the apartment daily before the search,
including to share a Father's Day dinner prepared by Brown and
Pimentel. By contrast, Lora saw Brown "at the apartment almost
all the time." Pimentel testified that she saw Norris go into
Bedroom 1, "usually just [to] go to sleep," and Norris had told
her that the landlady was trying to evict him and Brown.
Lora also testified that at some point during his time
living at Apartment 2A, Brown had told him that she owned a gun
and had a license to carry. It is undisputed that Brown did not
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in fact have a license to carry a firearm or own any lawfully-
registered firearms.1
As part of the government's case-in-chief, the
prosecution entered a stipulation that Norris had previously been
"convicted in a court of a crime punishable by imprisonment for a
term exceeding one year within the meaning of 18 U.S.C.
§ 922(g)(1)." This was the only evidence offered to prove Norris's
status as a felon.2
After a four-day trial, the jury found Norris guilty on
all four counts. The district court denied Norris's post-trial
motions for judgment of acquittal and a new trial, and he timely
appealed the convictions and those denials.
II.
Norris raises on appeal four categories of error, which
we address in turn. Because our understanding of the jury
instruction on joint possession informs the analysis of the
1Brown did not testify at Norris's trial. This hearsay
statement was admitted as a statement against Brown's penal
interest under Federal Rule of Evidence 804(b)(3), after the
district court found that Brown was unavailable because she
indicated that she would invoke her Fifth Amendment privilege
against self-incrimination if called to testify.
Norris's presentence investigation report (PSR) indicates
2
that he had previously been convicted of, inter alia, two crimes
that resulted in sentences of seven-to-nine years and four-to-five
years of imprisonment, respectively.
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sufficiency of the evidence of possession, we first assess the
propriety of that instruction.
A.
In its proposed jury instructions, the government
submitted an instruction for "possession" that included a more-
or-less standard form of a so-called joint-possession instruction,
telling the jury that they could convict even if Norris possessed
the contraband jointly with someone else. Norris objected to the
inclusion of this instruction, arguing, as he does now, that joint
possession was not "the government's case" because the government
had argued that Norris alone possessed the gun and drugs.3 The
district court rejected Norris's argument and found the
instruction appropriate: "I think that is the case actually. I
mean, [the evidence has] presented an excellent picture, actually,
that [Brown] was in that bedroom, and she was in there most of the
time." The court ultimately included the following in its
instruction defining "possession" for the jury:
Possession also includes both sole possession
and joint possession. If one person alone has
actual or constructive possession, the
possession is sole. If two or more persons
share actual or constructive possession,
possession is joint. So whenever I use the
term "possession" in these instructions, and
3 Norris made no argument that finding possession to be
proved by joint ownership constituted an improper amendment of the
indictment, which simply alleged that he "knowingly possessed a
firearm" and "knowingly and intentionally possessed with intent to
distribute cocaine."
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I'll be using it again, the term includes
actual and constructive possession, as well as
joint and sole possession.
Norris renewed his objection to this instruction after
it was given. We review his preserved objection de novo. United
States v. Howard, 687 F.3d 13, 18 (1st Cir. 2012).
"When crafting jury instructions a judge must consider
all of the evidence introduced at trial, in other words, the
government's as well as the defense's." Id. at 19. In Howard, we
held that a defendant may open the door to a joint-possession
instruction through his own evidence and arguments. Id. ("The
evidence extant and Howard's own theory of the case made the joint
possession and aiding and abetting instructions appropriate.").
Howard had raised a nearly identical challenge to the
one Norris now presses, arguing that a joint-possession
instruction was inappropriate where, according to the defendant,
"the government did not present any evidence that the drugs
belonged to anyone else." Id. at 18. There, police had found
drugs and a gun during the search of a house where two other people
resided. Id. at 15, 19. Howard introduced a stipulation that one
of the residents had multiple convictions for gun and drug
possession, and he repeatedly argued in closing that the contraband
belonged to them, rather than to him. Id. at 18–19 & n.4.
Howard thus argued "that to the extent the inference had
been raised that the drugs belonged to [the house's residents],
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there was no evidence that Howard was working in concert with
them." Id. at 18. We found this argument unavailing because
Howard's own evidence had been used "to cast suspicion on [the
house's residents] and in doing so, raised an inference that he
possessed the drugs jointly with [them]." Id. at 19.
So, too, here. Norris also attempted to pin the gun and
drugs on another occupant of the residence searched. He
successfully sought introduction of Brown's statement to Lora that
she owned a gun and had a license to carry, defeating the
government's attempt to bar such evidence. His counsel pressed
the testifying officers about a jacket photographed in Bedroom 1's
closet -- an arm's length from where the backpack was found --
suggesting the jacket was Brown's. In closing, his counsel both
reiterated this theory about the jacket and pointed to Brown's
statement about the gun in arguing that Brown, rather than Norris,
was the primary occupant of Bedroom 1 and thus actually possessed
the contraband.4 Moreover, that the DNA of at least one male and
perhaps one female was found on the gun and ammunition does provide
4 Specifically, as to the gun, Norris's counsel argued:
"But, importantly, Coco also says she has a
gun, okay? Not a small detail in a case
involving a gun, right? She tells [Lora], 'I
have a gun.' She lies about having a license,
right? But she tells Mr. Lora, 'I have a
gun' . . . . And Coco is the woman in the
room with two open scales and an open safe,
now has a gun, okay?"
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some support for the theory that Brown and Norris jointly possessed
these items. In short, "[t]he evidence extant and [Norris's] own
theory of the case made the joint possession . . . instruction[]
appropriate." Id. It matters not that the government and Norris
each argued for a different sole-possessor theory, because these
arguments permitted the jury to infer that both purported
possessors shared the contraband.5
Norris directs us to United States v. Ramos-González,
775 F.3d 483 (1st Cir. 2015), in which we found that a boilerplate
joint-possession instruction was improperly given where "the
record contain[ed] no evidence of such a theory, and no party
argued it." Id. at 499. There, the defendant had presented an
alibi defense contending that the truck containing the contraband
5 To distinguish Howard, our concurring colleague has
retrieved and mined the trial record from Howard to show that the
government in that case argued at trial for an alternative joint-
possession theory. But our opinion in Howard did not mention,
much less rely on, that fact at all. Rather, Howard relied solely
on the fact that the defendant's evidence and argument made the
joint-possession theory apt, just as here. See 687 F.3d at 18–
19. Adding belt to suspenders, with reference to both the drugs
and the gun, the government here plainly argued to the jury, in
the alternative, for joint possession: "[P]ossession can be sole
or joint. In other words, more than one person can be in actual
or constructive possession of an item." Our colleague reads the
government as essentially abandoning that theory when it discussed
the conduct of drug distribution. But even if the government
advanced Norris as the sole drug dealer, that is not necessarily
inconsistent with its position that Norris's possession of the
contraband could be sole or joint. Moreover, we reject the notion
that by advocating for its primary theory the government implicitly
abandoned its fallback position that Norris was still guilty even
if his possession was joint.
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was driven by another person, thus presenting the jury with an
either-or proposition that left no room for a joint-possession
theory. See id. We reiterated the sound principle that, in
charging a jury, a district court must be "mindful of the facts of
the case before it." Id. That is precisely what the district
court here demonstrated when it remarked, in overruling Norris's
objection to the instruction, "I think that is the case actually.
I mean, [the evidence has] presented an excellent picture,
actually, that [Brown] was in that bedroom, and she was in there
most of the time."
B.
We turn next to Norris's argument that the government
failed to introduce sufficient evidence that he knowingly
possessed any of the drugs, gun, or ammunition, either directly or
constructively. Norris preserved this argument by timely raising
it in his post-trial motion for a judgment of acquittal under
Rule 29, see United States v. Castro-Lara, 970 F.2d 976, 980 (1st
Cir. 1992), so we review the claim de novo, United States v.
Mendoza-Maisonet, 962 F.3d 1, 11 (1st Cir. 2020). We therefore
assess the evidence and "all plausible inferences drawn therefrom"
in the light most favorable to the prosecution and determine
whether "a rational factfinder" could have found the elements
proved beyond a reasonable doubt. United States v. Torres Monje,
989 F.3d 25, 27 (1st Cir. 2021) (quoting United States v. Santos-
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Rivera, 726 F.3d 17, 23 (1st Cir. 2013)). For this task, "we do
not view each piece of evidence separately, re-weigh the evidence,
or second-guess the jury's credibility calls." United States v.
Acevedo-Hernández, 898 F.3d 150, 161 (1st Cir. 2018). "Nor do we
have to be convinced 'that the government succeeded in eliminating
every possible theory consistent with the defendant's innocence.'"
Mendoza-Maisonet, 962 F.3d at 12 (quoting Acevedo-Hernández, 898
F.3d at 161).
Possession can be actual -- meaning "hands-on physical
possession" -- or constructive. United States v. Padilla-Galarza,
886 F.3d 1, 5 (1st Cir. 2018). "[C]onstructive possession is shown
by proving that the defendant had 'dominion and control over the
area where the contraband was found,'" and it may be established
by circumstantial evidence. Mendoza-Maisonet, 926 F.3d at 12
(quoting Padilla-Galarza, 886 F.3d at 5). And, as explained,
constructive possession can be joint. United States v. Hicks, 575
F.3d 130, 139 (1st Cir. 2009).
Here, the government introduced substantial evidence
that Apartment 2A and Bedroom 1 -- including its closet -- were
under Norris's "dominion and control." Six days before the search,
Norris appeared in court to defend successfully against eviction
from Apartment 2A, the same apartment where law enforcement had
encountered Norris and Brown six months earlier and where Norris
had stayed after the officers assisted Brown's departure. Though
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Lora and Pimentel resided at Apartment 2A only briefly, they
testified to witnessing Norris go into Bedroom 1 to sleep and
change clothes in the days leading up to the search. This evidence
is consistent with the officers' testimony that they found men's-
sized sneakers and what appeared to be men's pants and shirts in
Bedroom 1 and in the closet that contained the backpack housing
the gun. That closet also contained multiple pieces of mail
addressed to Norris.
True, Brown and the baby were also seen using Bedroom 1,
and Norris's counsel argued that Brown was its primary occupant.
However, there was no evidence introduced that any of Brown's
belongings or clothes were seen in the room, and while Norris
argues about the jacket hanging near the backpack, nothing at trial
beyond counsel's questions suggested that it was Brown's jacket.
Lora also testified that he saw Norris come and go frequently,
while Brown tended to stay in the apartment with the baby "almost
all the time." If one of two people is definitively distributing
drugs, the jury could reasonably infer from this contrasting
behavior that, as between the person who goes in and out and the
person who stays put to care for a baby, the former is more likely
the dealer.
Additionally, when Norris was pulled over shortly after
returning to North Warren Avenue and within a couple hours of the
search, he told Detective Donahue, "I'm the one you're looking
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for." While Norris argues that this "vague" statement could be
interpreted to mean that Norris knew, for example, "he was driving
without proper documentation," our standard of review means we
will not speculate at possible innocent interpretations. We need
consider only the inferences that are both reasonable and most
favorable to the verdict, which, in this case, suggest Norris
believed the police were looking for him because he had just
returned to his apartment and learned that it had been subjected
to a police raid in which his drugs and gun had been seized.
Taken together, all of this evidence, and the
prosecution-friendly inferences we must draw, provide sufficient
basis for a rational factfinder to conclude that Norris exercised
control over Bedroom 1 and its closet (and therefore, either by
himself or jointly with Brown, the gun and drugs) in the period
immediately leading up to the search.
Finally, as discussed above, the jury was permissibly
instructed that possession includes joint possession, so it could
have permissibly resolved any ambiguity about Brown's use of the
room, including from her statement to Lora about owning a gun, by
finding that the she and Norris jointly exercised control over the
contraband.
C.
We next take up Norris's claim that the district court
erroneously admitted as lay opinion law enforcement officers'
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testimony that several items found in Apartment 2A -- including
plastic sandwich bags, digital scales, and the Brick Press
hydraulic system -- were tools of the drug trade. Detective
Donahue testified that digital scales are "utilized basically by
narcotics distributors to basically weigh smaller amounts of
narcotics and . . . [t]hey're weighed when they're breaking it
down into smaller amounts of narcotics, basically for street-level
distribution." Detective Donahue provided similar testimony about
drug distributors' use of plastic bags to prepare units for street-
level sales.6 Finally, Detectives Donahue and Mercurio each
testified about the function of the Brick Press hydraulic system,
including through attempted physical demonstrations for the jury.7
We assume without deciding that the district court's
pretrial disposition of Norris's motion to exclude evidence based
6 Specifically, Detective Donahue said:
[In my] [t]raining and experience, I know that
the drug distributors will utilize the plastic
bags to basically package up the narcotics.
They'll pour it into the corners of the
plastic bag, tie a knot so it's a small little
package, and then rip that corner with the
substance in it from the bag, or they'll cut
it from the bag so it's a smaller item. That
way they can utilize it so it's easier to sell
on the street, street-level distribution, and
it's a smaller item to conceal from law
enforcement.
7 Detective Donahue testified that:
This would be part of a hydraulic press
system. This is the main box, but there's
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other parts that are involved too, and it's
actually stated on it, "The Brick
Press." . . . So this is just a partial of -
- there's more components of this to a press.
It's a hydraulic press system. And this
actually on the tag here, above my initials
and ID, it actually in small writing says "The
Brick Press" on it.
Detective Mercurio's testimony about the Brick Press
primarily included an attempt to assemble the components
(presented here with the court's interjecting questions omitted):
So basically this is what is referred to as a
base plate. The jack sits on top of the base
plate. These screw into the base plate.
(Witness demonstrating.) . . . This is
notched so that it can fit onto the jack.
These have holes. There would normally be
four of these. These go into the hole. That
goes over it in a perfect world. (Witness
demonstrating.) This goes on top. . . . So
that basically, so you have the base plate.
You have the hydraulic jack. The hydraulic
jack fits in the bottom of that. This goes on
top. This wing nut would screw onto this nut.
Pressure would be applied up, and it pushes it
into the shape of a square. So basically
that's how it works. . . . [Y]ou just use
like a -- you need a screwdriver or something
just to crank that. It applies pressure up.
These wing nuts hold it down so that it
compacts the items that are inside. . . .
It's just hydraulic. . . . [The jack] pushes
up through the bottom, and this plate that's
in the bottom slides up through here, so it
comes up further into this, and it pushes
against this top plate. So it's not
mechanical; it's just hydraulic. So you jack
it up, and then you release it like a normal
jack, so it just applies the pressure and
pushes it into the shape. . . .
[Question from the prosecutor:] And what is
it pushing into the shape?
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on these same objections preserved the objections. Compare United
States v. Almeida, 748 F.3d 41, 50 (1st Cir. 2014) (reviewing in
limine rulings for plain error only, where the defendant "did not
renew his objection to the challenged evidence at trial" and failed
to argue that the rulings were "final rather than tentative"),
with Rodriguez v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 35
(1st Cir. 2011) (finding a particular ruling in limine was "final
enough" to render additional objections at trial unnecessary).
Our review is thus for abuse of discretion. Señor Frog's, 642
F.3d at 35.
Substantively, Norris argues that the district court
abused its discretion in failing to observe the requirements of
Rule 702 (imposing heightened requirements for expert testimony)
and permitting the officers' testimony under Rule 701, which
provides that:
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited
to one 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.
Fed. R. Evid. 701.
[Answer:] I mean, it's commonly referred to
as a kilo press to press powdered drugs into
a brick form.
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However, Norris acknowledges that we have previously
upheld the admission of similar lay opinion testimony about drug
distribution practices based on law enforcement experience and
that the district court apparently relied on that precedent. See
United States v. Moon, 802 F.3d 135, 147–48 (1st Cir. 2015) (upholding
lay opinion testimony from law enforcement officer regarding drug
dealers' frequent possession of firearms "to protect themselves and
their drugs"); United States v. Valdivia, 680 F.3d 33, 50–51 (1st
Cir. 2012) (same regarding drug traffickers' typical use of third
parties' names in subscribing to cell phone services); United States
v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir. 2005) (same regarding
heroin seized at drug points typically being packaged in "aluminum
decks" like the ones found in that case).
Rather than attempt to distinguish our precedent, at
least as to Detective Donahue's testimony, Norris instead argues
that "the First Circuit's precedents permitting lay opinion
testimony about drug distribution practices [are] based on an
erroneous legal principle that is in conflict with the law in all
other circuits." The government denies this is so. However,
three-judge panels of our circuit are bound by prior panel
decisions "closely on point," with only limited exceptions. United
States v. Lopez, 890 F.3d 332, 339–40 (1st Cir. 2018). As Norris
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has not argued that any such exception applies here, we decline to
go looking for one.8
Norris does contend that, even if the scales-and-baggies
testimony is governed by precedent, we should "draw the line" at
Detective Mercurio's attempted demonstration of the Brick Press,
because this testimony "purported to offer technical, specialized
knowledge." But setting aside whatever level of technical
knowledge may have been required for this testimony, Norris
entirely fails to address the government's argument that any error
from all of the challenged testimony was harmless in light of
similar -- and, indeed, much more extensive -- expert testimony
provided later in Norris's trial by Detective Thomas Keating. Cf.
United States v. Pena, 910 F.3d 591, 599 (1st Cir. 2018) (finding
that the defendant failed to show prejudice after assuming abuse-
of-discretion review applied and that an evidentiary ruling was
error).
Detective Keating was permitted to testify, without
objection, not only to the function of scales and "cut baggies" in
the drug trade, including the significance of residue found on
scales, but also to the use of razor blades and credit cards to
cut up cocaine, the street value of crack and powder cocaine in
8 Norris appears to have presented this argument primarily
to preserve a challenge to our precedent in a potential en banc
proceeding.
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Brockton, Massachusetts, and the import of the quantity of drugs
found at Apartment 2A. For example, Detective Keating testified,
without objection, in the following exchange:
Q. Now, based on your training and
experience, can you tell the jury whether, in
your opinion, possession of 46 grams of
cocaine base in a bag with a loaded gun,
ammunition, and two digital scales is
consistent with distribution or possession for
personal use?
A. Distribution.
Q. And based on your training and experience,
could you tell the jury whether, in your
opinion, possession of 32 grams of powder
cocaine in a bag with a loaded gun,
ammunition, and two digital scales is
consistent with distribution or possession for
personal use?
A. Distribution.
Norris next argues in conclusory fashion that he was
prejudiced by Detective Mercurio's testimony because, without the
notice requirements for experts, he was not able to sufficiently
prepare his defense. But Norris makes no showing of what else he
would have done with additional notice of the Brick Press
demonstration testimony, and he was put on notice by the
government's pretrial motions practice that someone would provide
testimony about drug distribution practices. Norris does not argue
whether or how the jury's verdict could have turned on the Brick
Press demonstration rather than the testimony provided by
Detective Keating, let alone how it was not harmless in light of
the physical evidence (including the drugs themselves) recovered
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from the apartment. In the absence of such an argument, we see no
basis to conclude that any possible error here was not harmless.
D.
We end with Norris's fourth category of claims,
concerning the 18 U.S.C. § 922(g) felon-in-possession count. In
February 2019, Norris moved for a judgment of acquittal and a new
trial under Federal Rules of Criminal Procedure 29 and 33. In
June 2019, the Supreme Court issued its decision in Rehaif, which
held that a conviction under 18 U.S.C. § 922(g) requires the
government to prove "both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of
persons barred from possessing a firearm." 139 S. Ct. at 2200.
Norris then filed a supplemental memorandum arguing for a new trial
on his section 922(g) count because that charge was not supported
by sufficient evidence that Norris knew of his status and because
the jury had not been instructed to find this element. On appeal,
Norris supplements this claim by arguing that the indictment failed
to allege the knowledge-of-status element.
As Norris raised his Rehaif claims for the first time in
a motion for a new trial or thereafter, we review only for plain
error. See United States v. Kinsella, 622 F.3d 75, 83 (1st Cir.
2010) (citing United States v. Brandao, 539 F.3d 44, 57 (1st Cir.
2008)); see also United States v. Burghardt, 939 F.3d 397, 402
(1st Cir. 2019) (observing that even arguments that "become
- 22 -
available only as a result of intervening changes in law" can be
waived (quoting United States v. Sevilla-Oyola, 770 F.3d 1, 14
(1st Cir. 2014))). It matters not that Norris's original Rule 29
motion did argue that the evidence was insufficient, as he raised
only other bases for that challenge. See United States v. Marston,
694 F.3d 131, 134 (1st Cir. 2012) ("[W]hen a defendant chooses
only to give specific grounds for a Rule 29 motion, all grounds
not specified are considered waived and are reviewed under [the]
less forgiving 'clear and gross injustice' standard.").
To demonstrate plain error, "a defendant must show
'(1) an error, (2) that is clear or obvious, (3) which affects his
substantial rights . . . , and which (4) seriously impugns the
fairness, integrity or public reputation of the proceeding.'"
Burghardt, 939 F.3d at 403 (alteration in original) (quoting United
States v. Correa-Osorio, 784 F.3d 11, 17–18 (1st Cir. 2015)). This
standard of review, and the third prong in particular, proves fatal
to Norris's Rehaif-based challenges.
In Greer v. United States, issued during the briefing of
this appeal, the Supreme Court confirmed that the substantial-
rights prong places the burden on the defendant to show "that, but
for the Rehaif error, the outcome of the district court proceedings
would have been different." 141 S. Ct. 2090, 2097 (2021). Greer
held that being a felon strongly implies knowing one is a felon,
and hence, a defendant will fail the third prong of plain-error
- 23 -
review for Rehaif-based claims unless he shows on appeal that "he
would have presented evidence in the district court that he did
not in fact know he was a felon." Id.; see also Burghardt, 939
F.3d at 403–04 (same). Moreover, the Court held that "an appellate
court conducting plain-error review may consider the entire record
-- not just the record from the particular proceeding where the
[alleged] error occurred." Id. at 2098.
Greer specifically addressed challenges to one court's
failure to instruct the jury that it needed to find the knowledge-
of-status element and to another court's failure to advise a
defendant on the element during his plea colloquy. Id. at 2096.
We also consider under Greer's purview Norris's challenges to the
indictment and to the sufficiency of the evidence of the knowledge-
of-status element. See United States v. Lara, 970 F.3d 68, 84–86
(1st Cir. 2020) (considering unpreserved Rehaif-based challenges
to the sufficiency of an indictment and of the evidence under forms
of plain-error review, with the latter challenge reviewed for
"clear and gross injustice" -- a "particularly exacting variant"
(quoting United States v. Valenzuela, 849 F.3d 477, 484 (1st Cir.
2017))).
Accordingly, here, as in Greer, we may properly examine
"relevant and reliable information from the entire record --
including information contained in a pre-sentence report." 141
S. Ct. at 2098. Norris's PSR indicates that he had previously
- 24 -
received sentences of seven-to-nine years and four-to-five years
of imprisonment. It would require something quite extraordinary
to show that a person having received such sentences did not know
a sentence in excess of one year was possible. Norris offers no
such extraordinary proof or argument.
Norris's reply brief concedes "that [after Greer] his
claims of error based on the failures of trial proof and omission
of the element from the jury instructions would alone not warrant
relief under Rehaif."9 However, he continues to press the claim
that the insufficiency of his indictment merits dismissal of the
section 922(g) count. Specifically, he argues that he need not
show prejudice because this error is "structural." It is
structural, he says, because it infringed his Fifth Amendment right
to be indicted by a grand jury and his Sixth Amendment right to
notice of the accusation against him. We have already considered
this precise challenge in Lara, where we declined to decide whether
the sufficiency of an indictment was structural because, even if
it were, unpreserved structural errors are nonetheless subject to
plain-error review. 970 F.3d at 86 (citing Johnson v. United
States, 520 U.S. 461, 466 (1997)).
9As Norris has apparently abandoned any argument that the
proof at trial was insufficient to prove the knowledge-of-status
element, we need not consider his prior argument that the
stipulation to his felon status could not alone provide sufficient
evidence on this element.
- 25 -
To be sure, we did not decide whether the insufficient
indictment in Lara affected the defendant's substantial rights.
We instead decided the appeal on the fourth prong of plain error,
reasoning that the error did not "seriously affect[] the fairness,
integrity, or public reputation of judicial proceedings" because
"the evidence that the element that was omitted ha[d] been
satisfied [wa]s nevertheless 'overwhelming and essentially
uncontroverted.'" Id. at 88 (quoting United States v. Cotton, 535
U.S. 625, 633 (2002) (internal quotation marks omitted)). And
Norris points out that the indictment in Lara specified the
defendant's past crimes of conviction, a detail absent from
Norris's indictment. Id. at 87–88. True enough, but these are
distinctions without a difference for Norris. In resolving the
challenge there on plain error's fourth prong, we relied not on
the prior conviction details within the indictment's four corners,
but on the same bases that the Supreme Court in Greer invoked for
the substantial-rights prong: We looked to evidence outside of
the trial record that demonstrated the defendant's presumptive
awareness of his past convictions, and we observed that the
defendant failed to "develop any argument as to how the lack of
notice stemming from the omitted knowledge-of-status element
mattered, given this evidence of his prior criminal history." Id.
at 88.
- 26 -
In short, Norris has made no showing that the Rehaif-
based errors in his indictment, evidence, and jury instructions
affected the outcome of his proceedings, and he has identified no
distinction from Greer and Lara that would permit us to grant
relief without such a showing.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
- Concurring Opinion Follows -
- 27 -
THOMPSON, Circuit Judge, concurring in the judgment. I
agree with most of the Court's conclusion. But I disagree that
the district court was in the right to have given--over Norris's
objection--a jury instruction on joint possession. To reach its
result, the Court shimmies past our clear case law reminding
district courts that jury instructions should be based not on what
the "standard charge" is, but what instructions fit based on the
facts and theories of the case. And instead, the Court stretches
other of our case law far beyond what it actually stands for. In
doing so, the Court opens the door to government windfalls in the
form of jury instructions justifying alternative routes to
conviction that the government not only didn't argue, but expressly
disavowed. Because I would conclude that instructional error was
nonetheless harmless in this case, though, I respectfully concur
in the judgment.
A.
In United States v. Ramos-González, 775 F.3d 483 (1st
Cir. 2015), we concluded that the district court erred when it
delivered a joint-possession jury instruction where "the record
contain[ed] no evidence of such a theory, and no party argued it,"
id. at 499. We suspected the district court there delivered the
joint-possession instruction "unthinkingly" and "simply because it
is part of the boilerplate jury charge on possession with intent
to distribute a controlled substance." Id. So we admonished the
- 28 -
district courts to take care in delivering jury instructions.
"[B]oilerplate instructions," we said, "should not be used without
careful consideration being given to their applicability to the
facts and theories of the specific case being tried." Id. (quoting
United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991)).
The government here does not dispute that it never argued
for a theory of joint possession below. Indeed, the government
expressly disavowed the contention that Brown had anything to do
with the contraband. (I'll get back to that in more detail in
just a bit.) That fact notwithstanding, the Court shoves away
Ramos-González because, it says, the facts there "left no room for
a joint-possession theory." Ante at 12. According to my
colleagues, that is so because the defendant presented an either-
or situation when he raised an alibi defense that someone else was
driving the truck containing the contraband when it was stopped by
police.10 Id. But the traffic-stopped truck was also owned by the
defendant. Ramos-González, 775 F.3d at 487. So, based on the
district court's thin theory of joint possession here--i.e.,
merely that Brown was "in that bedroom . . . most of the time,"
ante at 12--the facts in Ramos-González, too, could have supposedly
justified a joint-possession theory: the jury could have believed
The driver of the vehicle fled on foot and escaped. Ramos-
10
González, 775 F.3d at 488. Police later IDed the defendant as the
driver. Id.
- 29 -
the government that the defendant owned the truck; it could have
believed the defendant that he was not the driver on the day; but
it still could have believed that the defendant was somehow
involved.11 Ramos-González thus presents the same hypothetical
jury-could-believe-some-but-not-all justification for a joint-
possession instruction as the Court says exists here. Yet we said
that the joint-possession instruction in Ramos-González was not
proper because "the record contains no evidence of such a theory,
and no party argued it." 775 F.3d at 499.12
Ramos-González out of the way, the Court thinks that the
instructions lined up with the facts of the case here because, it
says, Norris opened the door to a joint-possession theory. He did
so, the Court explains, because his theory of defense was that the
contraband wasn't his--it was Nakaita Brown's, who also lived in
the bedroom where the contraband was found. That follows, my
11 The government in Ramos-González also presented evidence
from an FBI agent that, in his experience, the behavior at the
defendant's residence reflected likely gang activity. Tr. of Jury
Trial at 22:12–23:3, United States v. Ramos-González, No. 3:07-
cr-00262 (D.P.R. Mar. 18, 2012), ECF No. 221; see also Tr. of Jury
Trial at 89:10–21, Ramos-González, No. 3:07-cr-00262 (D.P.R. June
10, 2012), ECF No. 242 (emphasizing the same at closing argument).
12 The district court in Ramos-González instructed the jury
that it could not find that the defendant possessed the cocaine if
it did not believe he was there. Id. at 498–99. We have no idea
how that meshed with a joint-possession instruction, though,
because the defendant didn't object below (so the government never
defended it), and the government defended it on appeal only on the
ground that it was harmless where the evidence supported the sole-
possession theory.
- 30 -
colleagues say, even though the government not only admits that it
never suggested that Brown had any involvement with the gun or
drugs, the government also repeatedly rejected any such inference.
Indeed, it went to lengths in its closing argument to deflect any
possibility that Brown was a co-possessor of the contraband. To
highlight just a few instances from closing arguments:
• "In any event, the evidence in the case shows that
[Brown is] not the person who possessed the firearm
in the backpack, that loaded .9 millimeter pistol,
because the person who was in possession of that
firearm is the same person who possessed in that same
backpack 46 grams of crack cocaine and possessed over
30 grams of powder cocaine, all with the intent to
distribute it, and I suggest it's clearly not Nakasha
[sic] Brown."
• "[Norris is] trying to say [Brown's] the one who's
cutting stuff up dealing drugs, et cetera, et cetera.
How was she doing that exactly if she's in the
apartment all the time with a kid? She's not dealing
drugs in the apartment. I mean, that's crazy."
• "There's absolutely no evidence that she's dealing
drugs . . . ."
• "[Brown is] not the one who's dealing drugs. Who's
the one who is in and out of that apartment during
the time the two of them [are] there? It's not her.
It's him, the defendant."
• "The evidence shows you beyond any reasonable doubt
that he is the one who possessed the stuff in the
closet, that he is the one who possessed that firearm
in the bag, he is the one who possessed the crack
cocaine in the bag, he is the one who possessed the
powder cocaine in the bag, he is the one who possessed
the crack and powder in that box above the sink, and
he is the one who possessed that gun in the bag in
furtherance of his drug-trafficking activity, and
once again we ask you to find him guilty accordingly."
- 31 -
So the government's theory was not just that Norris alone possessed
the contraband--it was also specifically that Brown didn't.13
The government's contrary theory of the case "matters
not" to the Court. Ante at 11. Relying on United States v.
Howard, 687 F.3d 13 (1st Cir. 2012), the Court notes that "[w]hen
crafting jury instructions a judge must consider all of the
evidence introduced at trial, in other words, the government's as
well as the defense's," id. at 19. That's true. We also concluded
in Howard that the defense opened the door to a joint-possession
instruction through his evidence and arguments. The Howard
defendant argued that he didn't possess the contraband--it was
someone else. This is also true.
But, even recognizing those truths, Howard doesn't
stretch as far as the Court tries. In Howard, the government
explicitly argued a joint-possession theory as an alternative. To
be sure, its primary theory of the case was that Howard possessed
the contraband alone. Yet it also expressly told the jury that
"to the extent that Deshawn Howard was working that business with
someone else, listen to the judge's instruction on joint
possession. Mr. Howard doesn't have to be the only person
possessing it." Tr. of Criminal Jury Trial, Day 5 at 21:20–23,
13The government also told the district court that it thought
Brown would have no "colorable" Fifth Amendment claim if she were
called to testify at trial because it did not "have any reason to
believe she possessed that gun or the drugs."
- 32 -
United States v. Howard, No. 3:09-cr-30027 (D. Mass. Aug. 23,
2011), ECF No. 90; see also id. at 41:23–42:7 ("If Deshawn Howard,
with regard to the possession and distributing the five or more
grams of cocaine, is working with anyone else . . . then he's
culpable just as if he acted alone. But it's his drugs and his
scales and his gun.").
So it's not just that Howard's evidence raised a possible
inference that he was "in cahoots" with the two residents of the
home--the government also picked up on that possible inference as
an alternative theory. See, e.g., United States v. Appolon, 695
F.3d 44, 64 (1st Cir. 2012) (rejecting contention that the
government's argument of actual knowledge forfeits the
government's right to present a willful-blindness instruction).
Which, as I've already explained, is far from what happened here.
Far from lining up with Howard, the joint-possession instruction
here instead gave the jury the opportunity to convict Norris on a
theory the government never proposed--and one it even called
"crazy."
Searching far and wide for evidence that the government
pressed a joint-possession theory here, my colleagues pluck a
singular reference by the government in its closing statement that
possession could be joint. What my colleagues don't note, though,
is that statement came merely in the government's description of
the legal definition of possession, including what it means for
- 33 -
possession to be actual or constructive. Nor do they mention the
context of the government's one-sentence remark: It came just
before the government dove into an extended monologue, which we
already reviewed, telling the jury that Brown had nothing to do
with the contraband at issue. On top of that, my colleagues cannot
"retrieve[] and mine[]" a single instance in this record in which
the government attempted, beyond a passing mention to a legal
definition of possession, to present a joint-possession theory.
So the issue is not, as my colleagues attempt to frame it, that
the government took "inconsistent" positions or "abandoned its
fallback position." Ante at 11 n.5. The problem is that the
government simply never presented an alternative theory.
Presumably, the government had good reason to tell the
jury repeatedly that Brown had nothing to do with the gun or drugs
found here. If that was the government's belief, it should not
have had the benefit of giving the jurors an easy out to resolve
the conflict between Norris's allegations against Brown and the
government's clear insistence that Brown was not involved. See
Wolak, 923 F.2d at 1198 (finding error in joint-possession and
constructive-possession instructions because neither "was an issue
in this case . . . as the government's theory was that Wolak had
actual possession of the firearm at all relevant times, and the
defense theory was that the gun belonged to Pruitt").
- 34 -
How the instruction made it to the jury in the first
place also reveals the error of the district court's way. The
government put the instruction on its proposed list months before
trial, without explanation. At trial, Norris objected. Yet the
district court treated the joint-possession instruction as an
almost pro forma matter:
[Norris's counsel]: [T]he one that's more, I
guess, pressing would be the one that there
could be joint possession. I'd like to argue
that some because I don't think that's the
government's case, and I don't think --
THE COURT: That's a standard instruction. Do
you want it?
[Government's counsel]: Yes.
When the district court--not the government--began to explain the
supposed evidentiary basis for the instruction, Norris's counsel
tried to jump in. But the district court again cut him off:
THE COURT: I think that is the case actually.
I mean, you've presented an excellent picture,
actually, that she was in that bedroom, and
she was in there most of the time, so --
[Norris's counsel]: But they haven't argued
that she was part -- working with him in any
way, and the police chose to truncate their
investigation because they said she wasn't --
THE COURT: That's your case. I get it. I
will be giving a joint instruction charge if
you want, if you're looking for that.
[Government's counsel]: Yes.
The district court did not even allow Norris's counsel to finish
his argument about why the instruction was inappropriate. Indeed,
- 35 -
the government offered no justification of its own for the charge.14
The district court simply reverted back to the fact that it was a
"standard instruction." Which goes directly against Ramos-
González.15
In sum, rather than tailor the instructions to the facts
and theories of the case, the district court relied on both the
ubiquity of the instruction and its own--not the government's--
explanation of the joint-possession theory. In doing so, the
14 In United States v. Sweeney, 887 F.3d 529, 540 (1st Cir.
2018), we relied on Howard to conclude that the defendant's
suggestion that someone else in the residence used the password-
protected computer account to share child pornography allowed for
an aiding-and-abetting instruction to be delivered. We said so
because the evidence could have suggested that the defendant gave
the password to someone else to use. Id. But the government in
Sweeney argued this theory to the court in defending the aiding-
and-abetting instruction. See Tr. of Jury Trial Day 6 at 6-102:14–
6-103:2, United States v. Sweeney, No. 4:15-cr-40033 (D. Mass.
June 30, 2017), ECF No. 188. The government made no such argument
here, at least in part because the district court speculated on
the government's behalf.
15 I am also dubious about the district court's suggestion
that the mere fact that someone else used the bedroom where the
contraband was found would be, alone, sufficient to justify a
joint-possession instruction where the government never argued it.
Though I acknowledge that some of our sister circuits have set
such a low bar. See, e.g., United States v. Driggers, 913 F.3d
655, 657–58 (7th Cir. 2019) ("Indeed, we have gone so far as to
say that 'a joint possession instruction is "necessary" when
contraband is recovered from a jointly-occupied residence.'"
(quoting United States v. Rainone, 816 F.3d 490, 494 (7th Cir.
2016))); Johnson v. United States, 506 F.2d 640, 643–44 (8th Cir.
1974) (approving of joint-possession instruction where "the events
took place in an apartment which Johnson shared with his sister as
well as because Jones was present and had access to the drugs").
Indeed, in justifying the instruction on appeal, my colleagues
look to a slew of other evidence. Ante at 10.
- 36 -
district court offered the government a helping hand to conviction,
permitting the government a jury instruction on a theory it never
presented. And that, on a general level, creates too great a
danger of confusing the jury or sandbagging the defense. I see no
good reason to open the door to conviction based on a theory the
government expressly disavowed.
B.
The instructional error notwithstanding, I would still
affirm the conviction because the error was harmless. See United
States v. McLellan, 959 F.3d 442, 466 (1st Cir. 2020) (noting that
improper jury instructions "would not warrant overturning the
conviction if the potential error in the jury instruction were
harmless"). Our harmless-error analysis in criminal cases
proceeds at one of two levels. "The stricter standard, applicable
mainly to issues of constitutional dimension, requires the
government to prove beyond a reasonable doubt that the error did
not influence the verdict." United States v. Sasso, 695 F.3d 25,
29 (1st Cir. 2012). "The less stringent standard, applicable
mainly to trial errors that are not of constitutional dimension,
allows a conviction to stand, error notwithstanding, as long as it
can be said 'with 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.'" Id. (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Neither
- 37 -
party argues what harmless-error standard applies. I will assume,
favorably to Norris, that the more-stringent standard applies.
"Where a potentially erroneous instruction deals with an
essential element of the crime, it is harmless if it appears beyond
a reasonable doubt that the error complained of did not contribute
to the verdict obtained." McLellan, 959 F.3d at 466 (cleaned up).
"A jury instruction error is not harmless if 'the record contains
evidence that could rationally lead to a contrary finding' in the
absence of the error." United States v. Ford, 821 F.3d 63, 68
(1st Cir. 2016) (quoting United States v. Godin, 534 F.3d 51, 56
(1st Cir. 2008)). Thus, an instructional error "on an element of
the offense can be harmless beyond a reasonable doubt, if, given
the factual circumstances of the case, the jury could not have
found the defendant guilty without making the proper factual
finding as to that element." McLellan, 959 F.3d at 466 (quoting
United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989)).
Though the government does not argue that the error was
harmless, we have exercised our discretion to overlook the
government's failure to do so in the past. See, e.g., United
States v. Rose, 104 F.3d 1408, 1415 (1st Cir. 1997). We have
reasoned that "[i]n a case of clearly harmless error it would be
a waste of judicial resources to require a new trial where the
result is likely to be the same." United States v. Rodriguez
Cortes, 949 F.2d 532, 543 (1st Cir. 1991). Figuring out whether
- 38 -
we should overlook the error "involves the balancing of many
elements," including "the state of the record and whether the
arguments that the government does make provide assistance to the
court on the harmlessness issue." Rose, 104 F.3d at 1415.
I think we can overlook the waiver here because, though
the jury should not have received a joint-possession instruction,
its potential reliance on that instruction clearly did not make
the conviction infirm. The court instructed the jury on both
actual and constructive possession. (Constructive possession was
the government's theory.) The court went on: "Possession also
includes both sole possession and joint possession. If one person
alone has actual or constructive possession, the possession is
sole. If two or more persons share actual or constructive
possession, possession is joint." Thus, even if the jury found
that Norris jointly possessed the contraband with another person,
it still would have concluded that he actually or constructively
possessed the contraband. Which, alone, is sufficient to convict
him of the counts in the indictment.16 See 18 U.S.C. § 922(g)(1);
16For that reason, Norris's contention that the late-breaking
joint-possession instruction deprived him of the ability to
"question witnesses in a way that undermined the theory of
liability" and "the opportunity to mount his own arguments and
defenses against it" does not convince me. His defense of pointing
the finger at Brown would have knocked out two birds with one
stone, since it tried to get the jury to find that Norris neither
actually nor constructively possessed the contraband. If Norris
proved he had nothing to do with the contraband, then the jury
could not have found that he was in cahoots with Brown.
- 39 -
21 U.S.C. § 841(a)(1); United States v. Tanco-Baez, 942 F.3d 7, 25
(1st Cir. 2019) (noting that possession for § 922(g) can be sole
or joint); United States v. Maldonado, 23 F.3d 4, 6–7 (1st Cir.
1994) (same for § 841). And, as the Court thoughtfully explains,
there was sufficient evidence for the jury to convict Norris of
possessing the contraband at issue.
* * *
The district court erred in delivering a jury
instruction on a theory of the case the government not only did
not argue, but expressly denied. Though it turned out harmless
here, there will certainly be some cases where such instructions
launch the jury into a pit of confusion, risk convictions by
speculation, and potentially sandbag the defense after it has no
more opportunity to pursue a different strategy. For that reason,
I respectfully concur only in the judgment.
- 40 -