United States v. Rodriguez ( 2024 )

United States Court of Appeals
For the First Circuit
No. 22-1807
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN RODRIGUEZ, a/k/a Mula, a/k/a Mula Monopoly,
Defendant, Appellant.
Nos. 23-1255
23-1256
UNITED STATES OF AMERICA,
Appellee,
v.
JUNITO MELENDEZ, t/n Junior Melendez,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Kayatta, Circuit Judges.
Rory A. McNamara, with whom Drake Law LLC was on brief, for
defendant Rodriguez.
Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro &
Teitelbaum LLP were on brief, for defendant Melendez.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Joshua S. Levy, Acting United States Attorney, was on brief,
for the United States.
August 23, 2024
SELYA, Circuit Judge. A jury in the United States
District Court for the District of Massachusetts convicted
defendants-appellants Juan Rodriguez and Junito Melendez of, inter
alia, conspiracy to distribute and possess with intent to
distribute more than 500 grams of cocaine. The defendants claim
that the trial was plagued by erroneous evidentiary rulings and
defective jury instructions. In addition, Melendez claims that
his sentence rested on incorrect guideline calculations.
Discerning no error, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. Because these appeals do not present challenges to the
sufficiency of the evidence but, rather, deal with other claims of
error, we rehearse "the facts in a 'balanced' manner in which we
'objectively view the evidence of record.'" United States v.
Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015) (quoting United
States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015)); see
Gray v. Genlyte Group, Inc., 289 F.3d 128, 131 (1st Cir. 2002)
(explaining that, for issues such as admissibility of evidence and
appropriateness of jury instructions, "evidence offered by either
side or both may be pertinent").1
1Some of our older cases suggest that — even in the absence
of a sufficiency challenge — we should rehearse the facts in the
light most favorable to the verdict. See United States v.
Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014). Having
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A
Melendez and Rodriguez were convicted of working with
several associates to carry out a scheme to purchase and distribute
large quantities of cocaine in Massachusetts and New Hampshire.
The government's case against them was as follows. Melendez was
the front man of the enterprise: he interacted with customers and
suppliers while Rodriguez managed the back-end operations from his
residence in Worcester, Massachusetts. The two men acquired at
least some of the trafficked cocaine from Angel Cordova (whom the
government believed to be their primary supplier). They then
cooked portions of the acquired cocaine into crack cocaine, which
they sold along with the rest of the powder cocaine. Their
principal customer was Carlos Richards (Lito) who lived in
Manchester, New Hampshire. To transport the contraband from
Worcester to Manchester, the defendants sometimes employed
couriers.
reexamined those decisions in light of the weight of modern
authority, we abrogate them. In doing so, we have followed the
procedure described in cases such as Trailer Marine Transport
Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5 (1st Cir. 1992),
Gallagher v. Wilton Enterprises, Inc., 962 F.2d 120, 124 n.4 (1st
Cir. 1992), and Carpenters Local Union No. 26 v. United States
Fidelity & Guaranty Co., 215 F.3d 136, 138 n.1 (1st Cir. 2000).
The panel opinion in this case was circulated to all active judges
of the court prior to publication. None interposed an objection
to our proposed course of action. We caution, however, that the
use of this informal procedure does not convert this opinion into
an opinion en banc, nor does it preclude a suggestion of rehearing
en banc on any issue in this case.
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The Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) began focusing on the defendants in the summer of 2018 after
local police in Worcester requested assistance with an ongoing
probe. As relevant here, the ATF took custody of Melendez's iPhone
in December of 2018 while he was detained on a charge unrelated to
these appeals. The ATF secured a search warrant for the iPhone's
contents and subsequently obtained three authorizations for
wiretaps of the iPhone. Based on information that was recovered
from the iPhone (such as photographs and notes) and conversations
that were recorded by means of the wiretaps, the ATF and local
police tracked the defendants' drug operations over the next few
months. We briefly recount these drug transactions as they pertain
to the issues on appeal.
When the authorities arrested the defendants, the
charges that they lodged stemmed from a series of seemingly
scattered drug transactions that occurred over a period of
approximately three months. Our odyssey along this trail begins
on April 2, 2019, when a local police officer in Worcester observed
one of Melendez's associates, Lujan Burgos, enter Melendez's
residence and depart less than an hour later. Burgos was
subsequently stopped and arrested for driving on a suspended
license. A search of his person incident to his arrest yielded
twenty-two grams of crack cocaine, which the government suspected
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Burgos had procured from Melendez during his brief visit to
Melendez's residence.
The next day — April 3 — Rodriguez called Melendez for
assistance in bailing out Burgos. Melendez responded that he would
"make some moves" and that he should be able to help the next day
— a response that hinted that Melendez would receive proceeds from
a later cocaine sale. One of the enterprise's couriers, Antoine
Mack, was to deliver cocaine to Richards in Manchester that
afternoon. Local police observed Mack first at a dwelling in
Worcester (later referred to as "Mula's spot") at which Melendez's
vehicle was parked. Mack spent only a short time in the Worcester
residence, after which tailing ATF agents lost sight of him. The
government suspected that it had just witnessed Mack pick up a
cocaine shipment from Melendez to transport to Richards in
Manchester.
Mack reappeared at Richards's residence, where he made
only a quick stop and departed with a bag in hand. A later-
discovered video showed Mack in his vehicle in Manchester with
what looked like a large sum of cash in his lap. Mack then returned
to Massachusetts and made another pilgrimage to Melendez's
residence. After these events had transpired, Melendez told
Rodriguez that he had secured the necessary funds to help bail out
Burgos. From the government's perspective, this chain of events
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indicated that Mack had successfully delivered the cocaine to
Richards and returned the proceeds to Melendez.
We fast-forward to April 12. On that date, Melendez
telephoned Cordova, who reported that he "got five" — a statement
which the ATF case agent understood to mean 500 grams of cocaine.
Several additional telephone calls ensued during which the men
discussed a meeting location for the transfer of the cocaine.
Following these calls, Worcester police observed a "possible
Hispanic male" leave the meeting location with what looked like a
food container in a plastic bag. The government argued that police
had just witnessed Melendez purchase cocaine from Cordova.
This brings us to April 22. On that date, Melendez
instructed Mack to go to Mula's spot, which the government
understood as a direction to pick up cocaine and deliver it to
Richards in Manchester. Mack's trip, though, was interrupted by
a police officer who stopped him on an unrelated charge and had
his vehicle towed. The officer recovered a plastic bag during the
stop, but it did not contain contraband.
Mack and Melendez regrouped and again attempted to
execute the transaction. Attuned to their communications through
the wiretaps, the ATF sent an agent to conduct surveillance. The
surveilling agent observed an individual drive to Richards's
residence in Manchester. The surveilling agent suspected that the
purpose of this trip was to deliver cocaine. But because it was
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dark and raining, the agent could not identify the messenger. Even
so, after tailing the messenger's vehicle to a gas station on its
return journey, the agent was able to identify Mack as the driver.
The agent followed the vehicle to a house in Worcester and watched
Mack enter the house with a bag in hand. It could reasonably be
inferred from this observation that Mack returned with the proceeds
from his most recent cocaine delivery.
Later that week (on April 25), Melendez informed Cordova
that he needed "seven or eight," which the ATF case agent
interpreted to mean 700 or 800 grams of cocaine. On April 27,
after further telephone exchanges, Melendez and Cordova were seen
driving together toward a Massachusetts residence. On May 6,
Cordova telephoned Melendez and — according to the ATF case agent's
interpretation — agreed that Cordova would sell Melendez 500 grams
of cocaine. ATF agents then observed Cordova, another courier
(Kevin Jean), and a third unidentified person meet at Mula's spot.
The following day, Melendez telephoned Richards. The
case agent — interpreting coded language — testified that this
call was intended to make plans to deliver 400 grams of cocaine to
Richards in New Hampshire. Subsequent communications between
Melendez and Jean supported an inference that Jean met with
Richards that afternoon. On May 16, the case agent — again
interpreting coded language — concluded that Melendez intended to
procure at least 500 grams of cocaine from Cordova. This
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conclusion was based on the case agent's review of a telephone
call between Melendez and Cordova, which reflected that Melendez
told Cordova that he would buy "[p]robably more, but five minimum."
A day later, Cordova communicated to Melendez that he had "531 in
one piece," a statement that the case agent interpreted to mean
531 grams of cocaine in one "brick." Melendez directed Cordova to
come to his residence, where video footage shows the two men
meeting for about three minutes.
On May 23 and 24, Melendez and Cordova discussed the
possibility of Cordova again supplying Melendez with cocaine.
These discussions proceeded notwithstanding the fact that Melendez
was displeased with the quality of the product that he had received
earlier. On May 24, Melendez ordered "three" from Cordova, which
the case agent interpreted to mean 300 grams of cocaine. This
order was placed after Cordova advised Melendez that he had secured
a different source of supply for the drugs.
Melendez and Cordova subsequently were seen inside a
Massachusetts residence, after which Melendez told Rodriguez that
he could have "1 or 2." Following a telephone call with Melendez,
Richards arrived at that location (about thirty minutes after
Cordova had left) and then departed with a bag in hand. Shortly
thereafter, two officers stopped Richards and found about 200 grams
of cocaine, about 105 grams of crack cocaine, and many "white
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papers" in his possession. The officers confiscated the contraband
but did not arrest Richards.
On June 5, ATF agents executed search warrants at
Melendez's and Rodriguez's homes and arrested both men. In July,
a federal grand jury sitting in the District of Massachusetts
charged the defendants with one count of conspiracy to distribute
and to possess with intent to distribute cocaine. See 21 U.S.C.
§ 846; see also id. § 841(a)(1). The indictment further charged
that 500 grams or more of cocaine was reasonably foreseeable and
attributable to Melendez and that he had a prior conviction for a
serious drug felony, see 21 U.S.C. § 802(57) — circumstances that
warranted enhanced penalties under 21 U.S.C. § 841(b)(1)(B)(ii).
The grand jury separately charged Melendez with one count of
conspiracy to interfere with commerce by robbery (Hobbs Act
robbery). See 18 U.S.C. § 1951.
B
After a thirteen-day trial at which the government
presented evidence of these events, the jury found both Melendez
and Rodriguez guilty of conspiracy to distribute cocaine and
conspiracy to possess with intent to distribute 500 grams or more
of cocaine. See 21 U.S.C. § 846. The jury separately found that
Melendez had distributed 500 grams or more of cocaine under
circumstances in which such distribution was reasonably
foreseeable, after he had previously been convicted of a serious
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drug felony. See 21 U.S.C. § 841(b)(1)(B)(ii). Finally, Melendez
pleaded guilty to conspiracy to commit Hobbs Act robbery. See 18
U.S.C. § 1951.
The district court sentenced Rodriguez to a 52-month
term of immurement for the drug conspiracy. The court sentenced
Melendez to concurrent terms of imprisonment of 156 months for his
two conspiracy convictions. These timely appeals followed.
II
We start with Melendez's challenge to the search warrant
and wiretaps issued for his iPhone. The wiretaps, in particular,
yielded many of the communications deployed against Melendez at
trial.
A
Some additional background is useful. While Melendez
was in police custody on an unrelated matter, the ATF confiscated
his phone and sought a search warrant for its contents. The
government supported the warrant application with an affidavit
from the ATF case agent asserting that there was probable cause to
believe that Melendez committed drug and firearm trafficking
offenses for which the phone's contents would provide evidence.
The affidavit identified two confidential sources (both of whom
have prior convictions and were cooperating in return for potential
leniency on pending criminal charges).
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The first source advised that Melendez was the leader of
the Massachusetts section of the Vice Lords gang and possessed and
distributed firearms. The second source substantiated the
allegations of Melendez's role in the Vice Lords and his possession
and distribution of firearms. That source also disclosed that
Melendez was involved in the distribution of kilograms of crack
and powder cocaine and that he sanctioned the use of violence to
protect his drug-distribution activities.
A magistrate judge issued a search warrant, and the
government collected a mass of information on which it relied for
a later wiretap application. In support of the wiretap
application, the case agent explained that law enforcement was
investigating Melendez's firearm and drug-distribution operations.
The case agent noted Melendez's prior conviction, his apparent
involvement in various criminal activities, and the statements
from the two confidential sources. In addition, the case agent
noted statements from two more confidential sources. The third
source substantiated Melendez's involvement in the Vice Lords gang
and his firearms dealings, and the fourth source was identified as
a potential cooperator. The court granted the application. Two
other wiretap applications, which relied in part on evidence from
the first wiretap, were also granted.
Melendez filed motions to suppress both the evidence
obtained from the iPhone and the communications intercepted
- 12 -
through the wiretap. The district court denied these motions.
Melendez now challenges these denials.
B
We begin by rehearsing standards of review applicable to
the denial of motions to suppress evidence from search warrants
and wiretaps.
1
When presented with a challenge to the denial of a motion
to suppress, "we examine the district court's 'factual findings
for clear error and its legal conclusions, including its ultimate
constitutional determinations, de novo.'" United States v.
Sheehan, 70 F.4th 36, 43 (1st Cir. 2023) (quoting United States v.
Moss, 936 F.3d 52, 58 (1st Cir. 2019)). Where, as here, the
principal "basis for a probable cause determination is information
provided by a confidential informant, the affidavit must provide
some information from which a magistrate can credit the informant's
credibility." United States v. Gifford, 727 F.3d 92, 99 (1st Cir.
2013). Put bluntly, "the probability of a lying or inaccurate
informer [must have] been sufficiently reduced." United States v.
Greenburg, 410 F.3d 63, 69 (1st Cir. 2005). To assess an
informant's credibility, we look to factors such as:
(1) whether the affidavit establishes the
probable veracity and basis of knowledge of
persons supplying hearsay information; (2)
whether an informant's statements reflect
first-hand knowledge; (3) whether some or all
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of the informant's factual statements were
corroborated wherever reasonable or
practicable (e.g., through police
surveillance); and (4) whether a law
enforcement affiant assessed, from his
professional standpoint, experience, and
expertise, the probable significance of the
informant's provided information.
Gifford, 727 F.3d at 99.
2
Congress has instructed that law enforcement must make
several specific showings before intercepting wire, oral, or
electronic communications. See 18 U.S.C. § 2518(3). A wiretap
application must show probable cause to believe "that an
individual is committing, has committed, or is about to commit a
[qualifying] offense." Id. § 2518(3)(a). So, too, the
application must show probable cause to believe that the
intercepted communications will yield information about the
offense and "that either the individual or the offense is
sufficiently connected to the means of communication that [the
government] seeks to surveil." United States v. Encarnacion, 26
F.4th 490, 497 (1st Cir. 2022); see 18 U.S.C. § 2518(3)(b), (d).
What is more, the application must show that "normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." 18 U.S.C. § 2518(3)(c). In short, the wiretap must
be reasonably necessary to the investigation. See Encarnacion, 26
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F.4th at 497. We will affirm a wiretap if "the application was at
least 'minimally adequate' to support the authorization of the
wiretap." Id. (quoting United States v. Gordon, 871 F.3d 35, 43
(1st Cir. 2017)). So long as the application clears this bar, a
motion to suppress the fruits of the wiretap will be denied. See
Gordon, 871 F.3d at 46.
C
We separately address the iPhone search and the
wiretaps.
1
Melendez contends that the search of his iPhone lacked
probable cause because the supporting affidavit from the case agent
(which incorporated the confidential sources' accounts) was not
credible. He says that the case agent failed to provide any
information in support of the sources' credibility. See United
States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (explaining
that "[a] mere assertion of reliability without any information
regarding the basis for the officer's belief, such as past tips
leading to arrests," is a minimum showing that "is entitled to
only slight weight" (internal quotations omitted)). He adds,
moreover, that the confidential sources' past criminal convictions
and current quest for leniency undermine their credibility.
Without independent evidence of credibility, his thesis runs,
these sources "had every reason to lie" in exchange for more
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favorable resolution of their pending criminal charges. He adds
that the information provided came without "any explanation for
the[] basis of knowledge and consisted of conclusory allegations
of criminal conduct devoid of the specificity necessary to
determine whether the information was based on personal knowledge
or hearsay."
These arguments fail because they depend upon
balkanization of the evidence. As a start, the fact that the
confidential sources were cooperating with law enforcement does
not, in and of itself, undermine their credibility. See United
States v. Leonard, 17 F.4th 218, 225 (1st Cir. 2021) (explaining
that, although confidential source "had pending charges at the
time, providing perhaps an incentive to falsify information," this
concern could be eased by offering information that corroborated
the source's account); see also United States v. Vongkaysone, 434
F.3d 68, 74 (1st Cir. 2006) (explaining that, when one becomes an
informant in exchange for potential leniency with pending criminal
charges, "it [is] to his advantage to produce accurate information
to the police so as to qualify for the leniency he [seeks]").
To be sure, a source may overstate his knowledge in the
hope that the government can use what little information he can
provide to make an arrest and, thus, afford him leniency. The
source may even fabricate information, such as in an attempt to
mislead the government in furtherance of the criminal enterprise.
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See, e.g., United States v. Ramírez-Rivera, 800 F.3d 1, 28 (1st
Cir. 2015), overruled on other grounds by United States v. Leoner-
Aguirre, 939 F.3d 310, 316-17 (1st Cir. 2019); United States v.
Vigeant, 176 F.3d 565, 570 (1st Cir. 1999).
In the case at hand, evidence supporting the veracity of
the sources' information defeats any such theory. Each source
spoke directly to investigators, so if either of them had later
been found to be lying, he would have been exposed to additional
punishment. This provided an incentive for the sources to be
truthful in their accounts. See Barnard, 299 F.3d at 93 ("Unlike
an anonymous tipster, [a cooperating source is] . . . known to the
police and could be held responsible if his assertions prove[]
inaccurate or false."). Additionally, it is noteworthy that the
two separate sources both confirmed essentially the same
information about Melendez's gang affiliation and criminal
activities. This level of consistency furnishes a form of internal
corroboration. See Leonard, 17 F.4th at 226 (noting importance of
"cross-corroboration" among sources).
There is more. To bolster the sources' credibility, the
government discloses additional context as to how the first two
sources acquired their information. Notably, they observed some
of Melendez's criminal activities first-hand. See United States
v. Maglio, 21 F.4th 179, 186 (1st Cir. 2021) (noting that
confidential source's reliability is bolstered if he "personally
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observed criminal activity"). The first source saw Melendez
possess and/or distribute up to thirty-five firearms. The second
source was in a trailer with Melendez when he saw Melendez cook
crack cocaine. He also explained that Melendez generally had
access to firearms and, on at least one occasion, observed Melendez
in possession of a particular 9mm firearm.
Even when these sources proffered information that was
not based on personal observation, they included extensive details
showing that they "ha[d] a legitimate basis [to] know[]" or that
an uninvolved person could not have "easily know[n]" that
information. United States v. Khounsavanh, 113 F.3d 279, 284 (1st
Cir. 1997). For example, these sources shared the identities of
additional gang members and some of Melendez's firearm straw
purchasers. They also alerted the government to another unreported
shooting. Melendez does not assign clear error to the district
court's reliance on any of these facts — which further undermines
his suggestion that the informants lacked credibility.
Last — but far from least — the government corroborated
the informants' accounts with independent information. The
address of the gang house was confirmed when law enforcement
connected it to an overdose. The authorities confirmed that the
unreported shooting did occur. And the government showed that
Melendez was linked to a couple of the firearm purchases. Once
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again, Melendez does not assign clear error to the district court's
reliance on any of these facts.
To say more would be to paint the lily. Taking into
consideration "the 'totality of the circumstances' disclosed in
the supporting affidavit[]," we conclude that it showed "a fair
probability that contraband or evidence of a crime [would] be
found" in a search of the phone. Barnard, 299 F.3d at 93 (quoting
United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)).
2
Because the iPhone search was lawful, we must reject
Melendez's derivative argument that the wiretaps relied on fruit
of the poisonous iPhone tree. See Utah v. Strieff, 579 U.S. 232,
237 (2016). The evidence in support of the wiretaps is even
stronger because it included a third confidential source who spoke
directly to law enforcement and corroborated the allegations made
by the first two sources. That leaves his contention that the
government failed to satisfy the necessity requirement as to the
wiretap applications. In that regard, our inquiry focuses on
whether "other investigative procedures [were] tried and failed"
or whether the government explained "why [these procedures]
reasonably appear[ed] to be unlikely to succeed if tried or [would]
be too dangerous." United States v. Santana-Dones, 920 F.3d 70,
76 (1st Cir. 2019) (quoting United States v. Nelson-Rodriguez, 319
F.3d 12, 32 (1st Cir. 2003)); see 18 U.S.C. § 2518(1).
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Melendez argues that the wiretap application did not
"explain why information from recorded phone conversations, text
messages, and controlled drug buys between [the fourth
confidential source] and [Melendez] would not accomplish the goals
of the investigation." This argument lacks force.
The wiretap affidavit offered at least three compelling
reasons for the search. The case agent explained that
sophisticated organizations remain wary of other methods,
particularly confidential informants who try to infiltrate the
organization. The government had tried and failed to introduce
two separate confidential informants into the organization. And
a confidential informant posing as a buyer could learn only so
much about the structure of the conspiracy and the identities of
those involved. Consequently, we hold that the district court did
not err in finding that the government satisfied the necessity
requirement by "offer[ing] specific and reasonable explanations
why" other investigative techniques "would have been unproductive,
too dangerous, or insufficient to achieve its investigative
goals." Encarnacion, 26 F.4th at 501. And because the court
supportably concluded that the government satisfied the statutory
requirements for a wiretap and did not rely on any clearly
erroneous facts, we see no principled basis for overturning its
denial of Melendez's motion to suppress.
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III
The defendants jointly challenge two categories of
admitted evidence that they deem both improper and unduly
prejudicial under prevailing evidentiary rules.
A
Prior to trial, Melendez filed a motion in limine,
seeking to exclude any law enforcement interpretation of
statements made during the wiretapped conversations. During
trial, Rodriguez made the same objection. The defendants argued
that any such interpretation would constitute impermissible lay
testimony under Federal Rule of Evidence 701. See Fed. R. Evid.
701. The district court reserved decision. At trial, however,
the court denied the motion as to some testimony. The defendants
now appeal.
A few additional facts help to provide useful context.
The government's principal witness at trial was the ATF case agent,
who relied heavily on experience gained from his work over a decade
and a half in law enforcement. This work included extensive
experience in drug investigations. As the lead agent in this
investigation, he reviewed numerous text messages and telephone
calls that had been intercepted under the wiretap. Although he
was never designated as an expert witness, the court permitted him
to offer his opinion on the meaning of several obscure statements
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gleaned from these text messages and telephone calls. The
defendants assign error to the admission of this testimony.
B
We review a preserved objection to the district court's
admission or exclusion of evidence for abuse of discretion. See
United States v. Kilmartin, 944 F.3d 315, 335 (1st Cir. 2019). A
discretionary decision "cannot be set aside by a reviewing court
unless it has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors." Id. (quoting In re
Josephson, 218 F.2d 174, 182 (1st Cir. 1954)).
Withal, abuse of discretion is not a monolithic
standard. See United States v. Padilla-Galarza, 990 F.3d 60, 73
(1st Cir. 2021). It "encompasses 'de novo review of abstract
questions of law, clear error review of findings of fact, and
deferential review of judgment calls.'" Id. (quoting United States
v. Lewis, 517 F.3d 20, 24 (1st Cir. 2008)).
Federal Rule of Evidence 701 requires that opinion
testimony from a witness who is not testifying as an expert be
"rationally based on the witness's perception"; "helpful to
clearly understanding the witness's testimony or to determining a
fact in issue"; and "not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." Fed. R. Evid.
701. "Application of Rule 701 in the drug-trafficking context is
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not novel: 'we have long held that government witnesses with
experience in drug investigations may explain the drug trade and
translate coded language' for factfinders through lay opinion
testimony." United States v. Dunston, 851 F.3d 91, 96 (1st Cir.
2017) (quoting United States v. Rosado-Pérez, 605 F.3d 48, 56 (1st
Cir. 2010)); accord United States v. Hoffman, 832 F.2d 1299, 1310
(1st Cir. 1987) (holding that one who is experienced in the field
can "interpret[] . . . codes and jargon used in the drug trade"
under Rule 702). To comply with the constraints of Rule 701, "such
interpretive testimony must be anchored in the witness's personal
experience in the field . . . and his experience-based
understanding of the meaning of the terms used." Dunston, 851
F.3d at 97. Of course, such a law enforcement officer must limit
his interpretation to language that is "peculiar to the[]
defendants" in the particular case and ground his interpretation
"largely on [his] immersion in the details of [the relevant]
investigation." United States v. Albertelli, 687 F.3d 439, 446-
47 (1st Cir. 2012).
C
On appeal, the defendants first attack the case agent's
testimony, "[b]ased on [his] experience in this investigation,"
that "Shit Lito" described transporting cocaine to Lito who lived
in New Hampshire and that "Mula's spot" was 69 Cutler Street in
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Worcester (where cocaine was distributed).2 (Alterations in
original.) The defendants assert that the case agent was not
"understanding, interpreting, and translating purposefully
confusing drug lingo." United States v. Belanger, 890 F.3d 13, 25
(1st Cir. 2018). To the contrary, they contend that "he was
interpreting perfectly clear communications about a meeting
between [Melendez] and Mack to infer that Mack was going to obtain
cocaine from [Melendez] and deliver it to a person in New
Hampshire, even though Mack's car was stopped and searched on the
way to New Hampshire and no drugs were found."
In this circumstance, it is within the trial court's
discretion to allow a law enforcement officer to provide lay
opinion testimony when he can — based on his experience with drug
investigations and his involvement in the current case — "explain
the drug trade and translate coded language." Dunston, 851 F.3d
at 96 (quoting Rosado-Pérez, 605 F.3d at 56). When the witness
2 Because neither defendant objected to all the testimony
that we discuss below, some aspects of their challenges have not
been properly preserved and, thus, invite plain error review. See
United States v. Belanger, 890 F.3d 13, 27 (1st Cir. 2018) (holding
that "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'" (quoting United
States v. Leon-Delfis, 203 F.3d 103, 113 (1st Cir. 2000))). But
the government "treats these challenges as raised by both
[d]efendants" and does not invoke the plain error standard. We
follow the government's lead and evaluate the district court's
challenged rulings for abuse of discretion.
- 24 -
deciphers a coded phrase, that "'interpretation . . . ought to be
explicable' — a standard that typically requires the witness to
point to similar statements surrounding similar events." Id. at
97 (quoting Albertelli, 687 F.3d at 450). Even so, a court must
exclude such testimony when "the witness is no better suited than
the jury to make the judgment at issue." United States v. Vázquez-
Rivera, 665 F.3d 351, 363 (1st Cir. 2011) (quoting United States
v. Meises, 645 F.3d 5, 16 (1st Cir. 2011)).
Here, the district court had a sufficient basis to find
that the case agent's testimony satisfied these standards. The
defendants' contrary contention misunderstands the purport of the
testimony. Because the expressions "Shit Lito" and "Mula's spot"
are unclear to one without inside knowledge of the defendants'
mode of communication, it was within the court's discretion to
allow the experienced case agent to explain that the defendants
used this jargon as shorthand for transporting cocaine and
describing a house owned by Rodriguez's (Mula's) family from which
the defendants facilitated drug distribution. Although no
interpretation was needed to understand that a meeting was
discussed, it was unclear where the meeting was to occur ("Mula's
spot") and what purpose it served ("Shit Lito").
We discern no abuse of discretion in allowing the
government to fill these gaps. The case agent had reviewed
thousands of telephone calls and text messages between the
- 25 -
defendants and their co-conspirators and could interpret them with
the benefit of many years of immersion in the drug-trafficking
world. The record supports the district court's conclusion that
he was readily familiar with the defendants' linguistic
preferences and the likely meaning of their jargon. See Belanger,
890 F.3d at 25-26 (permitting lay opinion testimony by officer who
had worked for DEA for about sixteen years, was a case agent on
the matter, had helped "conduct[] physical surveillance," and had
"listen[ed] to the thousands of calls as they came in");
Albertelli, 687 F.3d at 447 (permitting lay opinion testimony by
officer who had investigated matter for years, had become "familiar
with the voices of the major participants," and had studied other
materials recovered from defendants). And the jury stood to
benefit from his specialized knowledge. Accordingly, the
defendants' claim of error fails.
Even so, the case agent's testimony went further by
concluding that the government "believed . . . Mack was going to
obtain cocaine from . . . Melendez at 69 Cutler Street and
transport it to Lito in Manchester, New Hampshire." The defendants
suggest that, by offering this conclusion, the case agent was
inferring guilt from "'the totality of information gathered' in
the agent's investigation." United States v. Agramonte-Quezada,
30 F.4th 1, 19 (1st Cir. 2022) (quoting United States v. García-
Sierra, 994 F.3d 17, 26 (1st Cir. 2021)). This function, they
- 26 -
say, is the sole province of the jury. Cf. García-Sierra, 994
F.3d at 26-27 (explaining that "overview testimony" by law
enforcement "'effectively usurp[s] the jury's role as fact-finder'
by suggesting which inferences the jury should draw from the
evidence appropriately before it" (alteration in original)
(quoting Meises, 645 F.3d at 16)).
We reject this suggestion. The case agent offered this
opinion in response to a question about specifically identified
telephone calls that discussed this meeting. He was not cobbling
together scattered evidentiary bricks to construct a "summary
overview" of a broader conspiracy for which this suspected drug
transaction provided evidence. United States v. Pérez-Vásquez, 6
F.4th 180, 199 (1st Cir. 2021). Given the case agent's experience
and the context here, we believe that it was within the trial
court's discretion to allow him to offer an opinion on the meaning
of specific and limited conversations and, thus, to admit the
challenged testimony.3
Although this testimony resembles later testimony to which
3
the court sustained an objection ("[W]e believed that . . . Mack
obtained cocaine from 69 Cutler Street and was transporting that
cocaine to Manchester, to . . . Richards."), the two situations
are not comparable. In the latter situation, the case agent
offered the cited opinion in response to a question that asked
him to consider a more extensive range of evidence — making it
more likely for the jury to regard his proffered testimony as a
government-sanctioned summary of the evidence portraying the
defendants as guilty of the crimes charged.
- 27 -
Nor does the fact that officers did not find cocaine
during a search of Mack's vehicle throw shade on the case agent's
ability to offer interpretive testimony as to the defendants'
communications. See Robinson v. Watts Detective Agency, Inc., 685
F.2d 729, 739 (1st Cir. 1982) ("Whether . . . [a witness's]
opinion is accurate goes to the weight of the testimony, not its
admissibility."). That this one search came up empty may raise a
question about the government's theory that the drug-distribution
scheme described in the defendants' communications was
effectuated. But it says nothing dispositive about the
government's showing that the case agent was familiar with drug
vernacular generally and with the defendants' jargon specifically.
It was this familiarity that qualified the case agent to offer his
interpretation of language particular to the defendants'
operations. See Albertelli, 687 F.3d at 446.
We do not gainsay that the absence of cocaine in the
vehicle of the person whom the government believed to be the
transporter provided exculpatory evidence with respect to the
ultimate issue of guilt. But the appropriate way to explore this
discrepancy was through cross-examination. See Dunston, 851 F.3d
at 97 (explaining that voir dire and cross-examination of law
enforcement witness who provided interpretive testimony "mitigated
any risk of unfair prejudice from his testimony"). Here, however,
the defendants failed to call attention to this discrepancy on
- 28 -
cross-examination. And as we explained earlier, the accuracy of
an opinion poses a question distinct from the question of its
admissibility. See Robinson, 685 F.2d at 739. Thus, this claim
of error fails.
D
The defendants both challenge the case agent's
testimony, based on his experience and the context of the
conversations, that various numbers and terms referred to specific
amounts of cocaine. We sample some of these conversations.
The case agent interpreted "the whole thing" as
referring to one kilogram of cocaine. "I got five," he said,
referred to 500 grams of cocaine. Needing "seven (7) or eight (8)
something like that" meant 700 or 800 grams of cocaine. "I'm still
waiting on that shit" signified that the person "was likely waiting
on his own supplier for cocaine." And "I got 531 in one piece"
referred — as the case agent saw it — to 531 grams of cocaine that
needed to be sold in a single transaction.
The defendants do not deny that they used these phrases
in their discourse with each other. They submit, however, that
the case agent "was being asked to interpret what was otherwise
plain English" and that "the jury was, or would [have] become,
well-educated enough as to the nature and scope of the alleged
conspiracy to make its own determination as to the quantity of
- 29 -
drugs being discussed, if, indeed, drug quantities were even being
discussed at all."
They add that — aside from general references to context
— the case agent never explained his interpretations. For example,
there was no elaboration as to why phrases like "the whole thing"
were code words that carried more than their ordinary meaning.
With no significant ambiguity, the defendants maintain, the case
agent, in effect, was telling the jury what result to reach.
When a law enforcement officer provides interpretive
testimony as lay opinion, the government must erect a foundation
to ensure that the opinion fulfills the requirements of Rule 701.
See United States v. Prange, 771 F.3d 17, 27 (1st Cir. 2014). For
its part, the district court must assess whether the "law
enforcement officer . . . is equipped by knowledge, experience,
and training to break [criminal] codes [such that his testimony]
can help to inform the factfinder's understanding" of the
communications at issue. Dunston, 851 F.3d at 97. Moreover, the
witness must "point to [a] rational basis for the interpretation
offered" such that his opinion does more than just speculate.
Albertelli, 687 F.3d at 447.
In this instance, we think that the defendants are too
quick to discount the vagueness of their communications. If it
was unclear that the communications were even discussing drugs (as
the defendants suggest), it would be puzzling to call these
- 30 -
communications unambiguous such that interpretive testimony would
be forbidden. For example, the phrase "still waiting on that shit"
makes clear that the speaker is waiting on something but remains
unclear as to what the speaker may be waiting for. It follows
that one familiar with communications between these persons (and
drug vernacular in general) is well-situated to explain that such
vague expressions described drug transactions. See United States
v. Valbrun, 877 F.3d 440, 444 (1st Cir. 2017) (permitting co-
conspirator to explain vague statements like "putting the thing,"
"my stuff," and "hid[ing] it well" (alteration in original)).
It is perhaps more difficult to justify the government's
reading of numbers that appeared to refer to quantities of cocaine.
After all, reading Arabic numerals requires no special expertise.
In addition, other communications did not use single digits to
represent large quantities but, rather, wrote out three-digit
numbers (e.g., "531 in one piece"). Finally, the search of one
residence uncovered only about two grams of cocaine, perhaps
indicating that the defendants sometimes did deal in single-digit
quantities of cocaine. Against this backdrop, the defendants
suggest that the single-digit numbers in the relevant
communications might have meant just that — single-digit grams of
cocaine.
We think that the defendants are more ready than the
circumstances permit to assume their own interpretation of these
- 31 -
communications. Although a number like "five" might refer to five
grams of cocaine (as the defendants submit), it also might be
shorthand for 500 grams (as the government contends). Moreover,
there is no reason that "five" — without further context — could
not plausibly mean five kilograms (which would not be a facially
unreasonable amount for veteran drug distributors to handle). So,
too, it is common in many situations to omit the units or zeroes
after a number when that information would be clear from the
context. See, e.g., Belanger, 890 F.3d at 28-29 (noting importance
of context to understanding vague "[p]hrases like 'drop 10 off'");
Dunston, 851 F.3d at 96-97 (permitting DEA agent "to testify about
the meaning of slang terms and jargon" because, among other
considerations, he "took into account the context in which those
terms were used"). Police found several hundred grams of cocaine
on Richards's person, meaning that the enterprise involved
hundreds of grams of crack and cocaine. And the one three-digit
number (531) that they wrote out could not have been abbreviated
the way other three-digit numbers were abbreviated (such as 500
becoming "5") without losing specificity in the last two digits.
Given his familiarity with the drug trade, the case agent was well
suited to resolve the uncertainties surrounding the defendants'
cryptic numerical references. See Albertelli, 687 F.3d at 446-
47.
- 32 -
We are mindful that no direct evidence confirms the case
agent's specific interpretations. But these points show that
plausible competing interpretations exist for the language used.
And the case agent's testimony on these points provided the
defendants with ample fodder for cross-examination. They could
have pressed the case agent on why he understood these numbers to
refer to hundreds of grams of cocaine, but they eschewed that
course of action.
That leaves the defendants' contention that the case
agent failed to explain the specific bases for his interpretations.
See Prange, 771 F.3d at 28 (noting importance of "an objective
basis for the agent's understanding that [defendant] knew they
were speaking in coded terms and his impression of what [defendant]
actually meant"). They maintain that the case agent's testimony
was based on nothing more than his review of the telephone calls
that the jury — without specialized knowledge — could have listened
to and understood to form its own opinion. This contention misses
the mark.
The case agent reviewed the voluminous record — which
would have been impractical to present to the jury in its entirety
— with the advantage of over a decade of experience in drug
investigations. Based on this experience, he could more readily
determine when and how the defendants employed ambiguous language
to mask their discussions of illegal activities. For example, he
- 33 -
observed that the defendants spoke about drugs in a "guarded"
manner, which contrasted with how they spoke about other topics
(like personal affairs). And he connected these conversations to
other aspects of the investigation, such as drug transactions that
the police had observed. On this scumbled record, we cannot say
that the district court abused its wide discretion by admitting
this testimony for such an interpretive purpose.
E
On the sixth day of trial, two local police officers
each testified that they were assigned to a "gang unit."4 The
district court overruled Rodriguez's objections and denied his
request for a limiting instruction. Before us, he asserts — based
on these testimonial tidbits — that jurors may have inferred
unfairly that he and Melendez were in a gang and, thus, had an
"agreement . . . to work together to achieve unlawful ends." In
a close case "where proof of [his] willful agreement" to distribute
or possess with intent to distribute drugs was "otherwise lacking,"
Rodriguez posits, seemingly small details like this one might have
"tipped the scales" in convincing the jury that he was guilty of
conspiracy.
4 Several days later, a third officer mentioned that he had
performed surveillance with an officer "from the gang unit."
Neither defendant objected to this comment, and we regard any such
objection as waived. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
- 34 -
The government demurs. It submits that these few
mentions simply provided background and points out that there was
never an allegation that either defendant belonged to a gang.
Rodriguez rejoins that the picture is not quite as unambiguous as
the one the government tries to paint: in his view, the government
recognized the potential for bias, yet highlighted the prejudicial
aspects of the testimony that was admitted. In support, he notes
that the government complied with the court's request not to
mention any affiliation that other law enforcement witnesses may
have had with a gang unit.
Inasmuch as Rodriguez objected below, our review of this
claim of error is for abuse of discretion. See Kilmartin, 944
F.3d at 335. It is, of course, arguable that the mention of a
gang unit may have left more than a passing impression on the
jurors. That possibility is problematic because this information
had no apparent relevance to the ATF's work in uncovering the
defendants' drug-distribution activities. And here, unlike in
United States v. Liranzo, 385 F.3d 66 (1st Cir. 2004), the court
did not give a limiting instruction to minimize potential
prejudice. See id. at 71-72 (discerning no abuse of discretion in
allowing officers to testify about their "assignments to the gang
task force" when "the evidence was not admitted to show [the
defendant's] gang membership and the limiting instruction made
that clear").
- 35 -
Even with these considerations in mind, we need not
tarry. We take no view as to whether admitting this testimony was
error at all: the testimony was harmless in any event. Aside
from a few offhand references to a gang unit, there is no sign
that the government presented its case in a way that either
suggested that the conspiracy was organized by a gang or that any
defendant was acting as a member of a gang. And as the defendants
acknowledge, the most damning evidence against them was their
communications, which the case agent characterized as describing
drug transactions. This evidence was reinforced by other proof,
such as cocaine recovered from physical searches. Given that the
gravamen of the government's case was unrelated to any potential
gang affiliation, we conclude that "it is highly probable that
[any] error did not influence the verdict." United States v.
Piper, 298 F.3d 47, 56 (1st Cir. 2002).
Rodriguez questions this reasoning. He suggests that
the jury's uncertainty about whether a conspiracy had been proven
(as evidenced by its question, see infra at 41) made it more likely
that the jury eventually relied on other factors — like the
defendants' imputed gang membership — in concluding that the
defendants were guilty. Jurors, he muses, may have inferred that
the defendants intended to enter into an agreement to distribute
cocaine because membership in a gang "implies an
agreement . . . to work together to achieve unlawful ends." But
- 36 -
this is unadulterated conjecture, and we are left to speculate as
to whether the jury may or may not have followed this line of
reasoning.
The jury would have had to construct a chain of
inferences to impute an illegal agreement between Rodriguez and
Melendez based on the testifying officers' gang-unit assignments
when no other mention of a gang appeared at trial. Nor can we
agree with Rodriguez's assertion that "proof of [his] willful
agreement to advance" the cocaine-distribution conspiracy was
"otherwise lacking." To the contrary, the government's evidence
showed that the drug-trafficking operation used Rodriguez's
residence to dispatch drugs, that the operation used Rodriguez's
car to ferry drugs to New Hampshire, and that Rodriguez cooked
crack cocaine on Melendez's instruction. Consequently, we are
left without sufficient reason to believe that the verdict was
tainted by prejudice associated with the passing mentions of a
gang unit. We therefore reject Rodriguez's claim of error.
IV
Rodriguez also mounts a challenge to the jury
instructions.
A
"When a party assigns error not to the substance of a
jury instruction but to the court's decision to give a requested
instruction at all, our review is de novo." Shervin v. Partners
- 37 -
Healthcare Sys., Inc., 804 F.3d 23, 47 (1st Cir. 2015). To prevail
on a claim of failure to give a requested instruction, the
requesting party must show that "the omitted instruction [was]
integral to an important part of the case and its content [was
legally correct and] not otherwise substantially covered by the
instructions as given." Id."Like the district court, [w]e examine the evidence on
the record and . . . draw those inferences as can reasonably be
drawn therefrom, determining whether the proof, taken in the light
most favorable to the [requesting party,] can plausibly support
the theory of the [party]." United States v. Baird, 712 F.3d 623,
627 (1st Cir. 2013) (first and second alterations in original)
(internal quotations omitted). When all is said and done, a
reviewing court must determine "whether the evidence, viewed in
the light most favorable to the proponent of the instruction,
justifies jury consideration of the underlying issue." Butynski
v. Springfield Term. Ry. Co., 592 F.3d 272, 276 (1st Cir. 2010).
If the requesting party has failed to preserve a claim
of instructional error, our review is only for plain error. See
United States v. Pennue, 770 F.3d 985, 989 (1st Cir. 2014). Under
this demanding standard, the party must show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected [his] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
- 38 -
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
B
Rodriguez first contends that, because the government
had to carry the burden of proof in establishing the identities of
"the players," a jury instruction warning of the inaccuracy of
cross-racial identifications was critical to ensure that the jury
correctly identified the conspirators. Nevertheless, the district
court refused his request to instruct on cross-racial
identification. Rodriguez assigns error to this refusal.
As relevant here, a white officer identified Mack, a
Black man, as the driver of a vehicle purportedly carrying drugs
while it was dark and rainy. White officers also identified other
individuals who were either Black or Hispanic. Had an instruction
highlighting these concerns been given, Rodriguez insists, jurors
may have doubted his involvement in the charged conspiracy.
Because this claim of error was preserved, our review is
de novo. Shervin, 804 F.3d at 47. Nevertheless, the claim fails.
The most conspicuous badge of failure is that the requested
instruction does not address a sufficiently important issue. To
begin, Rodriguez himself was never implicated in the conspiracy
through a cross-racial identification. His claim of error relies
on the possible misidentification of his co-conspirators such that
the jury would have doubted that he conspired with anyone to
- 39 -
possess and distribute drugs. But the government need not prove
the identity of each and every conspirator; it need only prove
that at least one other person conspired with the defendant to
commit the charged offenses. See United States v. Pena, 24 F.4th
46, 75-76 (1st Cir. 2022). As long as Rodriguez engaged in this
conspiracy (for which there was copious evidence beyond encounters
with potentially misidentified co-conspirators), it was immaterial
that others may have been misidentified in particular encounters.
Let us be perfectly clear. We express no opinion on
whether a cross-racial identification instruction might sometimes
be legally required. We hold only that, in these circumstances,
the omitted instruction was not "integral to an important part of
the case." Shervin, 804 F.3d at 47. Accordingly, Rodriguez's
claim of error comes up empty.
C
Rodriguez next contends that the evidence showed — at
most — that he trafficked in cocaine, not that he was a member of
the charged conspiracy. As a result, he maintains, the court
committed reversible error by not giving a buyer-seller
instruction.5 In other words, he contends that the district court
5 Although the purchase of illicit drugs reflects an unlawful
agreement between the buyer and the seller, such a transaction
does not necessarily include the additional elements needed to
prove a conspiracy to possess and distribute drugs. See United
States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) (explaining
that conspiracy requires, inter alia, "[c]ommon knowledge,
- 40 -
should have instructed the jury that an agreement to purchase "1
or 2," in itself, was insufficient to prove the charge of
conspiracy. Because this claim of error was not advanced below,
our review is for plain error. See Pennue, 770 F.3d at 989.
Plain error is plainly absent. The meat of the requested
instruction was substantially covered elsewhere in the court's
charge. For example, the court's conspiracy instruction required
the jury to find that each particular defendant intended to engage
in the conspiracy. It follows that, the jury — in accordance with
the district court's instructions — could not have convicted
Rodriguez of conspiracy if it believed that the evidence proved no
more than a buyer-seller transaction between Rodriguez and
Melendez. See United States v. Moran, 984 F.2d 1299, 1303 (1st
Cir. 1993).
To cinch the matter, the district court — after the jury
had begun its deliberations — responded to a jury question on this
subject. The court told the jurors that, as a precursor to a
finding of guilt on the conspiracy charge, "[i]t is not enough to
prove that the defendants conspired to purchase cocaine." This
supplemental instruction sufficiently distinguished a simple one-
interdependence, [and] shared purpose"). In a conspiracy to
acquire and distribute cocaine, "two individuals agree that one
of them will sell cocaine and the other will assist." Id. By
contrast, in a buyer-seller transaction, "one merely sells the
same cocaine to another without prearrangement and with no idea
of or interest in its intended use." Id.- 41 -
off purchase of cocaine from Melendez (as Rodriguez characterized
his involvement) from a more complex conspiracy to purchase and
distribute large amounts of cocaine as a middleman (as the
government characterized his involvement). Put another way,
Rodriguez could not have been convicted of conspiracy to distribute
and conspiracy to possess with intent to distribute cocaine (as
the indictment charged) if all he had agreed to undertake was to
purchase cocaine once from Melendez. See supra note 4.
To be sure, Rodriguez may have drawn some solace from
the precise language of his requested buyer-seller instruction.
But a defendant is not entitled to dictate the trial court's
phraseology. As "long as the charge sufficiently conveys the
[party]'s theory, it need not parrot the exact language that the
[party] prefers." United States v. McGill, 953 F.2d 10, 12 (1st
Cir. 1992). Nor is the district court "obligated to instruct on
every particular that conceivably might be of interest to the
jury." United States v. DeStefano, 59 F.3d 1, 3 (1st Cir. 1995).
In this instance, we are convinced that the thrust of the requested
buyer-seller instruction was substantially covered by other
instructions. See Shervin, 804 F.3d at 47. Consequently, we
cannot say that it was error at all — let alone clear or obvious
error — either to omit a buyer-seller instruction or to refrain
from providing a more detailed conspiracy charge.
- 42 -
V
In the revised presentence investigation report (PSI
Report), the probation officer responded to the government's
objection to the original report by increasing its drug weight
calculation from about three kilograms to about four kilograms.
This elevated Melendez's base offense level to twenty-eight. See
USSG §2D1.1(c)(6). In the process, the probation officer declined
to adopt Melendez's contention that the government was engaged in
double counting and that, therefore, the drug weight should total
around 1.75 kilograms for a base offense level of twenty-four.
See id. §2D1.1(c)(8). The probation officer also rejected the
government's suggestion that Melendez should receive a four-level
"organizer or leader" enhancement instead of a three-level
"manager or supervisor" enhancement. See id. §3B1.1(a)-(b).
At the disposition hearing, Melendez reprised his
objection to the drug-weight calculation. He explained that the
government's figure double-counted some of the cocaine by
including the same amount on both purchase and sale. See United
States v. Lee, 892 F.3d 488, 491 (1st Cir. 2018). The government
conceded that it would be improper to count the same cocaine both
when it was purchased and when it was sold but disputed that any
such double counting had occurred. The court agreed with the
government. In addition, the court sustained the government's
objection to the lesser role-in-the-offense enhancement,
- 43 -
classified Melendez as an organizer or leader, and imposed the
four-level enhancement. See USSG §3B1.1(a).
With another adjustment (not material here), the court
calculated a total offense level of thirty-four. Combined with
his criminal history category (IV), he faced a guideline sentencing
range of 210 to 262 months. The court proceeded to impose a
downwardly variant sentence of 156 months.
Melendez challenges two enhancements. First, he assails
the attribution to him of 4.2 kilograms of cocaine — an attribution
that put him over the 3.5-kilogram threshold needed to elevate his
base offense level from twenty-six to twenty-eight. See id.
§2D1.1(c)(6)-(7). Second, he challenges the four-level "organizer
or leader" enhancement. See id. §3B1.1(a). We deal with these
challenges sequentially.
A
"[W]e review the [sentencing] court's interpretation and
application of the sentencing guidelines de novo and assay any
subsidiary findings of fact for clear error." United States v.
Walker, 665 F.3d 212, 232 (1st Cir. 2011). "[T]he usual rules of
evidence do not pertain at sentencing. Rather, the . . . court
may base sentencing determinations on any evidence that it
reasonably finds to be reliable." Id.The government bears the burden of proving any
sentencing enhancement by a preponderance of the evidence. See
- 44 -
id. Where, as here, there is no direct evidence of the total
quantity of drugs attributable to a drug-trafficker, the
sentencing court may make "[a] 'reasoned estimate[] based on
historical data.'" United States v. Bernier, 660 F.3d 543, 546
(1st Cir. 2011) (second alteration in original) (quoting United
States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009)). This "drug-
quantity calculation is a factual finding" that we review for clear
error. United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010).
So, too, because "[r]ole-in-the-offense determinations
are innately fact-specific, . . . 'we review such determinations
only for clear error.'" United States v. Rostoff, 53 F.3d 398,
413 (1st Cir. 1995) (quoting United States v. Dietz, 950 F.2d 50,
52 (1st Cir. 1991)). To show that a defendant qualifies for the
"organizer or leader" enhancement, "the government's evidence must
satisfy both a scope requirement (that is, the evidence must show
that the enterprise involved five or more participants or was
otherwise extensive) and a status requirement (that is, that the
defendant acted as an organizer or leader of the enterprise)."
United States v. Rivera, 51 F.4th 47, 51 (1st Cir. 2022).
For guidance in evaluating a defendant's role in the
criminal enterprise, the guidelines lay out seven factors to
consider:
[T]he exercise of decision making authority,
the nature of participation in the commission
of the offense, the recruitment of
- 45 -
accomplices, the claimed right to a larger
share of the fruits of the crime, the degree
of participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
USSG §3B1.1, cmt. n.4. "This list is intended to be representative
rather than exhaustive[, and t]here need not be proof of each and
every factor before a defendant can be termed an organizer or
leader." United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st
Cir. 1995).
B
We turn first to the drug-weight enhancement. See USSG
§2D1.1(c)(6). Melendez asserts that the calculated cocaine weight
of 4.2 kilograms double-counted certain drug quantities by
including the same cocaine when he purchased it and when he sold
it. See Lee, 892 F.3d at 493 (recognizing "possibility of a
reversible error due to . . . double counting"). In his view, the
evidence reasonably reflected only the following amounts of
cocaine: 750 grams on March 14; 500 grams on April 12; 700 grams
on April 27; 500 grams on May 6; 531 grams on May 16; and 307.7
grams on May 25. And if these amounts were the sole basis for an
accurate estimate, the total drug quantity should have been 3,288.7
grams (about a kilogram less than the amount for which the court
sentenced him).
- 46 -
Melendez says that the 120 grams cooked into crack
cocaine on March 24, the twenty-two grams transferred to Burgos on
April 2, and the 400 grams sold to Richards on April 3 all came
from the 750 grams that he had received from Cordova on March 14.
In addition, he says that the 400 grams given to Richards on April
22 were part of the 500 grams that he had received from Cordova on
April 12. This double counting, he maintains, was what elevated
the total amount of drugs attributable to the conspiracy to exceed
the 3.5-kilogram threshold needed to increase his base offense
level by two levels. See USSG §2D1.1(c)(6)-(7).
Because a sentencing court's "drug-quantity calculation
is a factual finding," our review is for clear error. Kinsella,
622 F.3d at 86. And in the absence of direct evidence of the total
quantity of drugs, the court may rely on a reasonable estimate of
the total quantity. See Bernier, 660 F.3d at 546. Thus, "our job
'is not to see whether there is any view of the evidence that might
undercut the district court's finding; it is to see whether there
is any evidence in the record to support the finding.'" Kinsella,
622 F.3d at 86 (quoting United States v. Wade, 114 F.3d 103, 105
(7th Cir. 1997)).
We start with the April 22 transaction and,
specifically, the 400 grams that allegedly came out of the 500
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grams that Melendez had procured from Cordova.6 Melendez's
characterization of this transaction does not withstand scrutiny.
Although Cordova may have been Melendez's primary supplier, he was
not necessarily Melendez's sole supplier. For example, in one
recorded conversation, Melendez appeared to be sourcing cocaine
from Rodriguez to sell to Richards. Indeed, the government
identified this conversation in the PSI Report, but Melendez
objected to it only summarily below and never reckoned with it on
appeal. Melendez's communications also appear to discuss what
could have been an additional cocaine purchase from Cordova on
April 13.
Given these facts, it is plausible that Melendez sold
cocaine on April 22 that came from sources other than Cordova. On
this record, we cannot say that the district court clearly erred
— let alone committed plain error — by concluding that the two
scenarios involved different sources of cocaine. See Kinsella,
622 F.3d at 86 ("[W]hen the record supports more than one estimate,
the judge's selection 'from among plausible alternatives cannot be
6 Although Melendez objected that the 500 grams attributed
to him from the April 12 Cordova purchase involved double
counting, the objection cited a paragraph of the PSI Report that
discussed a transaction on April 3. Because Melendez did not
argue below that the April 22 Richards sale involved cocaine from
the April 12 Cordova purchase, this claim of double counting is
unpreserved, and our review is for plain error. See Duarte, 246
F.3d at 60.
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clearly erroneous.'" (quoting United States v. Morillo, 8 F.3d
864, 871 (1st Cir. 1993))).
That ends this aspect of the matter. Even if Melendez
prevailed on all his other claims, the total drug quantity would
decrease only by 542 grams. The total amount of cocaine would
then become 3,658 grams — an amount that is still above the 3.5-
kilogram threshold needed to bring into play a base offense level
of twenty-eight. See USSG §2D1.1(c)(6). Accordingly, any error
— if one occurred — would be harmless because it would not affect
the total offense level. See United States v. Rivera Calderón,
578 F.3d 78, 105 (1st Cir. 2009) (holding that "error was harmless
because the court's other findings were accurate and qualified
[defendant] for the offense level assigned").
C
Melendez next asserts that the court clearly erred by
imposing a four-level "organizer or leader" enhancement.7 He
contends that it was a mischaracterization to suggest that he had
organized or led a "drug trafficking organization" when the
evidence showed only that a small group, over a short period of
7 Melendez also challenges an enhancement to his sentence for
the robbery offense. But he mounts that challenge only in a
footnote and makes no developed argumentation in support of it.
We thus deem the challenge waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived").
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time, occasionally collaborated to buy and sell relatively modest
quantities of cocaine.8 He adds that the court failed to explain
why Rodriguez did not receive the same enhancement when neither of
the defendants had authority over the other and they maintained
joint responsibility for any assets. See United States v. Walker,
89 F.4th 173, 186 (1st Cir. 2023) ("The lack of any explanation
for the district court's decision gives us special pause here
because it is not apparent from the record that the court performed
the inquiry required by the . . . [g]uideline.").
We agree that the evidence does not suffice to show that
Melendez was the leader of the conspiracy. The evidence, however,
supports the conclusion that Melendez was an organizer of the
conspiracy, and that the district court did not overstep its
bounds by treating him as such. Because one's status as an
"organizer" is an inherently fact specific determination, our
review of this finding is for clear error. See Rostoff, 53 F.3d
at 413. One's status as an "organizer" depends on factors such
as his exercise of decision-making authority; the nature of his
8 This passing description of the events is the only possible
reference that challenges the scope requirement. Thus, Melendez
has waived any argument that the government has not satisfied this
requirement. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (explaining that "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived"). And in all events, the conspiracy clearly
involved at least five participants (Melendez, Rodriguez, Mack,
Jean, and Cordova), which would in itself be sufficient to satisfy
the scope requirement. See Rivera, 51 F.4th at 51.
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participation in the criminal activity; whether he recruited
accomplices; whether he was entitled to more of the proceeds; to
what extent he planned or organized the criminal activity; and
how much control or authority he had over other participants. See
USSG §3B1.1, cmt. n.4. Here, the facts plausibly support an
inference that Melendez acted as an organizer.
There is evidence that Melendez planned the criminal
activity, structured the deals, received the proceeds, engaged in
recruitment, and coordinated the activities of various henchmen.
Although Melendez may have only arranged transactions with other
associates — rather than supervise their activities — "[o]ne may
be classified as an organizer, though perhaps not as a leader, if
he coordinates others so as to facilitate the commission of
criminal activity." Tejada-Beltran, 50 F.3d at 112.
To be sure, the government acknowledged that other
participants played substantial roles in the conspiracy. For
example, Rodriguez's residence was "the hub of their drug
operation." And his "role was to ensure the security of the
assets" and "the security of the drugs that they
[were] . . . acquiring and/or distributing." Moreover, it is
apparent that Melendez had no authority over Cordova or Richards.
Cordova independently contacted Melendez when he had cocaine to
sell, and Richards independently contacted Melendez when he wished
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to purchase cocaine (although Melendez on occasion would advise
Richards when he had cocaine available for sale).
Even so, Melendez's argument overstates the authority
over an operation that the guidelines require in order to ground
"organizer" status. Although Rodriguez also played a significant
role in the conspiracy, "a defendant need not exercise complete
hegemony over the entire criminal enterprise in order to qualify
as an organizer." United States v. Ilarraza, 963 F.3d 1, 14 (1st
Cir. 2020). After all, "more than one person [can] qualif[y] as
a leader or organizer of a criminal association or conspiracy."
USSG §3B1.1, cmt. n.4; see Ilarraza, 963 F.3d at 14. Because
these facts adequately buttress the district court's application
of the enhancement, we reject Melendez's claim of error.
VI
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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