Date: 05-13-2018

Case Style:

Case Number: 17-1462

Judge: Thompson

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Penobscot County)

Plaintiff's Attorney: Renee M. Bunker and Halsey B. Frank

Defendant's Attorney: Joseph Simons

Description: In today's story of why it's
generally not a good idea to orchestrate and then participate in
an illegal narcotics distribution ring, meet Roger Belanger of
Corinna, Maine. Belanger was indicted on one count of conspiracy
to distribute and possess with intent to distribute five kilograms
or more of cocaine and an unspecified amount of oxycodone, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), as
well as a separate count of using and maintaining a drug-involved
premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2.
After a five-day trial in the District of Maine, a jury of
Belanger's peers found him guilty on both counts and he was
subsequently sentenced to eleven years imprisonment. Belanger now
comes to us presenting a host of supposed problems he says occurred
during the proceedings below. Having taken a look at Belanger's
claims of error, we cannot agree and affirm.
A. Getting Our Factual Bearings
The conspiracy with which Belanger was involved included
at least fifteen or so individual coconspirators and occurred over
a timespan of nearly thirteen years. Thus, to keep things clear,
our recitation of what exactly happened in this case does not tarry
on the minutiae of each and every interaction Belanger had with
his coconspirators. Instead, we endeavor to lay out in this
section a description of how things generally transpired during
the course of the conspiracy and opt to fill in, as needed, any
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further specificities called for by our analysis later in the
opinion. We note that our recitation of the factual background
is, of course, done in the light most complimentary to the jury
verdict. United States v. Negron–Sóstre, 790 F.3d 295, 307 (1st
Cir. 2015).
1. The Conspiracy
As charged in the indictment, and as supported by
testimony at trial, Belanger's drug conspiracy ring was
operational at least as early as 2002. At that time, Belanger
owned and operated an automotive mechanic and towing company called
Gudroe's. While Gudroe's appears to have functioned as a
legitimate business in some respects (i.e., car work was performed
by its employees for paying customers), it was also utilized by
Belanger as a drug distribution center for the conspiracy. Indeed,
some of the employees at Gudroe's were, themselves, coconspirators
in the drug ring. John Williams, an employee at Gudroe's, for
example, testified that while working there, Belanger would send
him on drug runs to Rhode Island where they had a contact who
served as the source of the cocaine that was ultimately distributed
up in Maine. This contact, who was named "Miguel," would provide
the illegal drugs to the designated drug runner and the drug runner
would then hide the narcotics in his or her car for transportation
back to Maine. The means of hiding the drugs differed--in some
cases the drug runner would simply put the drugs in the trunk of
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the car, while on other occasions the drugs would be hidden
intricately within the vehicle (such as in the gas tank of the car
or within hidden panels in the car's interior). The drug runner
would then drive back to Gudroe's, where the drugs would be
retrieved from the vehicle and given to Belanger (and other
coconspirators) to be sold and/or used recreationally. Belanger
would, himself, sometimes transport the drugs from Rhode Island,
as well.
One of Belanger's subordinates in the drug ring during
this time was his daughter, Kelli Mujo. While Mujo initially
worked well under Belanger, things seemed to change in 2003.
Testimony at trial revealed that Mujo felt duped upon learning
that some of the cars she transported from Rhode Island contained
a rather high quantity of cocaine. Indeed, upon personally
witnessing what a coconspirator described as a "bible-size" amount
of cocaine being unloaded from one vehicle, Mujo complained that
she was not getting paid enough to transport such a high drug
volume. Moreover, Mujo began to gripe about the fact that, in her
view, Belanger spent more time in his room getting high than he
did fostering the narcotics business. In response, and behind
Belanger's back, Mujo contacted David Snow (Belanger's primary
business partner) and began directly supplying him with cocaine,
as well. In doing so, however, Mujo still acquired this cocaine
from the same contact in Rhode Island utilized by Belanger, Miguel.
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Nonetheless, Belanger did not stop his drug
transportation and distribution business when Mujo began directly
supplying Snow. There was testimony from Williams (who also served
as a drug dealer), for example, that between 2003 and October 2004,
Williams still acquired most of his cocaine from Belanger, Snow,
and two other individuals. There was also evidence presented that
despite Mujo going behind Belanger's back to work directly with
Snow, Belanger and Mujo continued to work together in providing
drugs to their joint customers. Joey Burton, a drug addict who
bought narcotics from Belanger, testified that during the course
of his purchasing cocaine from Belanger in 2003 and 2004 he met
Mujo, who would sometimes be present for the transactions. If
Belanger was unavailable to distribute his cocaine, he would "pick
it up" from Mujo and in some instances he independently purchased
the drugs from Mujo.
Sometime later, in 2005, Belanger and his wife moved
from Maine to California. Various accounts were given at trial as
to why Belanger made the cross-country trek. One coconspirator
testified that Belanger justified the move as necessary to
"straighten out his life . . . before him or his wife died [from
drug overdoses]." That is, "he and his wife were both having some
pretty serious problems, and he just wanted to start a new life."
Another coconspirator had a different story, however, recounting
for the jurors at trial that Belanger had told him the California
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move was necessary because "it was getting too hot." According to
this account, "[t]he cops was [sic] looking in too close to the
drug business."
Regardless of Belanger's true motive for moving to the
Golden State, it is undisputed that shortly before he did so,
Miguel, the cocaine source in Rhode Island, was arrested.
Coconspirator Russell Beckwith testified that immediately
following Miguel's arrest, Mujo also ceased participating in the
drug business "for a short time." The hiatus, however, was
fleeting. Mujo, according to Beckwith, told him soon thereafter
that "Miguel hooked her up with one of his boys" and that the drug
distribution activities continued. Indeed, there was testimony at
trial that in Belanger's absence, Mujo and Mark Tasker assumed the
leadership role previously held by Belanger. The testimony
revealed that they became the primary facilitators of trips down
to Rhode Island to retrieve drugs for distribution in Maine.
In approximately 2009, Belanger returned from California
to Maine and jumped back into the drug business with both Mujo and
the same general group of coconspirators he had worked with before
moving.1 Michael Thompson--a coconspirator (and Mark Tasker's
nephew)--told the jury that upon Belanger's return to Maine,
1 While there is conflicting testimony regarding when Belanger
actually returned from California (ranging from 2008 to 2014),
Belanger's attorney conceded at trial (and the trial court accepted
the fact) that Belanger could be assumed to have come back in 2009.
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Thompson, who had previously purchased drugs from Belanger pre-
2005, once again found Belanger to be a reliable drug source.
According to Thompson, he had personally witnessed his Uncle Mark
obtain drugs from Belanger after Belanger returned to Maine. Greg
Tasker, Mark Tasker's son, testified that around 2011 or 2012 he
began to purchase cocaine and oxycodone from Belanger and Mujo.
He recounted that while he often purchased the drugs from Mujo at
her house, there were instances where he purchased the drugs
directly from her at Belanger's trailer in Corinna (which Belanger
purchased after coming back from California). Greg also noted
that it was his impression that when Belanger sold him drugs,
Belanger was generally getting them from Mujo. In other words,
while Belanger was the primary leader of the drug ring before he
left for California, he took a backseat role to Mujo once he
returned.2
2 There are numerous other examples of Belanger immersing himself
back in the drug ring upon his return from California and working
closely with Mujo. Though going through each example exhaustively
is unnecessary, we provide the reader with one more for good
measure. Williams testified that in 2012 or 2013, he and Mujo had
a falling out that resulted in Mujo's refusal to directly deal
with him or provide him drugs to sell. Undeterred, and in
recognition of the link between Belanger and Mujo, Williams
explained that he instead approached Belanger, who began to serve
as his direct point of contact for cocaine and oxycodone. That
said, Belanger received the drugs from Mujo. In fact, Williams
rode along with Belanger numerous times to Mujo's home so that
Belanger could pick up the drugs that were ultimately passed on to
Williams. Mujo, in other words, still served as the ultimate
source of the drugs, but Williams was required to pay Belanger
directly for the narcotics.
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At some point following Belanger's return, the Drug
Enforcement Administration ("DEA") obtained successive wiretaps on
Tasker's, Belanger's, and Mujo's cellular devices. In doing so,
the DEA was able to record numerous conversations discussing the
selling, transportation, and hiding of drugs. During these phone
calls, the coconspirators did not use the actual names of the drugs
they were discussing. This is not shocking. Indeed, it was
revealed through testimony at trial that the drugs sold in the
conspiracy were rarely (if ever) referred to by their mainstream
names. Numerous individuals explained that alternative,
identifying lingo was used instead. A drug abuser and dealer,
Whitney Chadbourne, for example, testified that 30-milligram
oxycodone pills were referred to as "blueberries" or "muffins."
Similarly, Williams told the jury that he would never use the terms
"cocaine" or "oxycodone." Instead, if he wanted cocaine he would
ask for "tires" and if he wanted oxycodone he would ask for
"blueberries." He also explained that the term "oranges" was used
to refer to suboxone3 and that "uptown" was another term used to
refer to cocaine.4 Greg Tasker told the jury that he had heard
the term "wheels" used in the drug business to refer to "pills"
and that he had personally heard both his father, Mark, and
3 Mark Tasker similarly vouched that suboxone or "Ex 40s" were
referred to as "oranges."
4 Cynthia Williams (John Williams's wife) also called cocaine
"uptown" while testifying at trial.
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Belanger use that term in the past. And Ross Morrison, another
drug addict and dealer in the conspiracy, told the jury that
oxycodone was referred to using the code word "blueberry."
Special Agent Paul Buchanan, a 16-year veteran of the
DEA who was involved in the investigation of this case, testified
to this, as well. Indeed, Buchanan was tasked at trial with
providing his layman's interpretation of recordings and
transcripts of some of the intercepted calls. He corroborated
other witnesses by explaining that it was common for drug dealers
to use coded words when referring to drugs (i.e., using the term
"blueberries" in reference to oxycodone pills). In addition, he
explained to the jury the process the DEA case agents went through
to obtain the wiretaps on Belanger's and his coconspirators'
phones, as well as his involvement in wiretap investigations
generally. And he testified as to common drug terminology and
gave his personal impression of what had transpired during some of
the phone calls. Side note: Special Agent Buchanan's testimony is
of particular importance because, as will be seen in our analysis,
Belanger has lodged numerous evidentiary challenges to the
admissibility of his testimony about these calls. While the
precise nature of the contested calls need not be fleshed out at
this juncture, the reader shouldn't fret. We will get into the
nitty gritty of Belanger's wiretap qualms momentarily.
Anyway, back to the conspiracy's operations. In
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November of 2014, things came to a head for Belanger, Mujo, and
the rest of the coconspirators. On November 8, 2014, Belanger's
unregistered car was pulled over and police dispatched drug dogs
around the vehicle. While nothing was found, Belanger subsequently
telephoned Mujo and told her he "put everything in hiding,"
presumably in reference to drugs, which was picked up by the
wiretap. On November 12, 2014, Belanger called Mujo to tell her
to "hide [her] stuff" because he had gotten word that cops were
"all over" a coconspirator's property. On November 21, 2014, Mujo
was pulled over while driving on a Maine highway. She called her
son to let him know that a drug dog had "hit on the car" and that
"the DEA showed paperwork that they're searching Poppie's [i.e.,
Belanger's] house and searching my house." And, in fact, that
same day warrants were executed on both Belanger's and Mujo's homes
in Corinna and Wellington, Maine, respectively. Electronic scales
commonly used to measure drug amounts, as well as $6,783 in cash,
were found at Belanger's residence, though no drugs were ever
actually found (in this raid or subsequently). That said, Belanger
later summoned Williams and two other unidentified men to accompany
him to Mujo's after the search because he "thought the [DEA] missed
the drugs."
Based on much of this evidence, Belanger was indicted on
April 16, 2015, and subsequently arrested on April 21, 2015.
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2. Significant Happenings at Trial
Mujo and Belanger were ultimately tried together.
Throughout the proceedings, debate raged over whether Belanger had
withdrawn from the conspiracy when he left for California in 2005.
This mattered because, according to Belanger, if he did in fact
withdraw in 2005, then there were arguably two separate
conspiracies--one from 2002 to 2005 and a separate, discrete
conspiracy from the time he returned from California in around
2009 until the raid on his house in 2014. Belanger maintained
that separating his actions into two distinct conspiracies would
necessarily trigger statute of limitations problems for the
Government, whereby any drug activity taking place in 2002, 2003,
2004, or 2005 would be ineligible to be counted toward the fivekilogram
drug quantity floor required under 21
U.S.C. § 841(b)(1)(A).
Unsurprisingly, the Government disagreed with Belanger's
two-conspiracies assessment and his withdrawal-from-the-drug-ring
contention. Indeed, it explained to the jury in closing argument
that regardless of whether Belanger was away in California for
three to five years, his absence from Maine did not, in and of
itself, result in a withdrawal from the conspiracy. Using a rather
playful analogy, the Government articulated the following:
[Y]ou need to think of the conspiracy like a train, a
train, choo-choo. It starts in 2002, and it travels
from Rhode Island to Maine. It travels from 2002 all
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the way up to 2014. And as the train travels along,
people get on, people get on that conspiracy train. They
get on the train by willfully joining the understanding.
And once they're on that train and they have that
understanding, they're in the conspiracy. The only way
that you can get off that train once you're on it --
well, there's two ways, you can die . . . or you can
derail the [t]rain. Derail the train. And the way you
derail the train is you frustrate efforts of the
conspiracy. You go to the other conspirators, every
single one of them and say, I'm out, I'm done, I'm
finished, I'm through, I don't want anything else to do
with drugs. You go to the cops. You go to Special Agent
Buchanan and say . . . I want to help you catch the
people that I have been dealing with for the past, you
know, 10 years, even my daughter. That's what you do.
You derail the train. You cannot get off of that train,
you cannot get rid of that understanding unless you
either die or derail the train.
According to the Government, Belanger neither died nor "derailed
the train" and so he never effectively left the conspiracy.
Belanger nonetheless requested at the charge conference
that the court issue the following multiple conspiracy jury
instruction: "if you find that a conspiracy existed before or as
of Mr. Belanger's departure for California in 2005, then a separate
conspiracy existed beginning after Mr. Belanger's departure for
California in 2005." After considering Belanger's request, the
court denied the proposed instruction, reasoning,
[t]he trial evidence established that one conspiracy
operated continuously from at least 2002 to sometime in
November of 2014, and that Belanger was active in the
conspiracy at times and inactive at other times. . . .
Accordingly, there's no factual basis for a finding that
there was more than one conspiracy.
The judge then instructed the jury. He made clear that "[t]he
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lawyers may have referred to some of the governing rules of law in
their arguments. If any differences appear to you between what
the attorneys said and what I say in these instructions, my
instructions control." He then noted that,
to find the defendant guilty of conspiracy, you must be
convinced that the Government has proven each of the
following things beyond a reasonable doubt, first, that
the agreement specified in the indictment existed
between at least two people to distribute and possess
with the intent to distribute cocaine and oxycodone; and
second, that the defendant willfully joined in that
agreement.
The judge made sure to point out that "[e]ven if a defendant was
not part of the agreement at the very start, the defendant can be
found guilty of the conspiracy if the Government proved that he .
. . willfully joined the agreement later."
At the end of the jury charge, Belanger objected to the
absence of his multiple conspiracy instruction. Additionally he
objected to the lack of "an instruction about withdrawal."
Although Belanger conceded he never proposed a withdrawal
instruction prior to that point, both the Government and the judge
were amenable to a withdrawal instruction being given. Indeed,
the prosecutor stated, "Your Honor, I did not [previously]
understand that [Belanger's counsel] had made this request [for a
withdrawal instruction] . . . but he certainly argued [withdrawal]
to the jury. I responded. . . . I don't have an objection to the
Court giving that instruction."
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Moments before sending the jury off for deliberations,
the district judge provided Belanger's requested withdrawal
instruction. He articulated the following:
Members of the jury, during the course of closing
arguments, you heard reference at times to this idea of
withdrawal from a conspiracy. And I want to give you an
additional instruction for you to consider in connection
with your consideration of Count I in this case, the
conspiracy count as it applies to . . . Mr. Belanger.
So I am going to instruct you now on what withdrawal
from the conspiracy is. To withdraw from a conspiracy,
a conspirator must act affirmatively either to defeat or
disavow the purposes of the conspiracy either by making
a full confession to authorities or by communicating to
his coconspirators that he has abandoned the enterprise
and its goals.
And with that, the judge sent the jury on its way to the jury room
to hash it out and arrive upon a verdict.
3. Sentencing
As we know, the jury found Belanger guilty on both
charged counts. Following his conviction, the Probation Office
for the District of Maine was tasked with preparing a presentence
investigation report ("PSR"). Based on evidence presented at
trial, probation calculated Belanger's guidelines base offense
level to be 32. Because Belanger maintained his house and garage
for purposes of distributing narcotics, a two-level increase on
the base level was imposed pursuant to U.S.S.G. § 2D.1.1(b)(12).
Another four-point increase was added under U.S.S.G. § 3B1.1(a)
because Belanger was determined to be a leader or organizer of a
criminal activity that involved five or more persons. Thus,
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Belanger's total offense level ("TOL") was found to be 38. Despite
ten previous convictions, Belanger was determined to have zero
criminal history category ("CHC") points and so he was given a CHC
of I. With a TOL of 38 and a CHC of I, Belanger's guidelines
sentencing range was calculated to be 235-293 months imprisonment.5
Belanger objected to the PSR for two reasons. First, he
argued that probation's reliance on the testimony of two specific
witnesses in calculating the quantity of drugs he distributed (and
thus his base offense level) was misplaced. Specifically, he
maintained that the two "problem" witnesses gave inconsistent
testimony and so could not be relied upon.6 Second, Belanger
objected to the four-point leader or organizer enhancement to his
total offense level, arguing that his pre-2005 criminal activity
was part of a second, distinct conspiracy and thus his behavior in
that conspiracy was irrelevant to sentencing. Concomitantly, he
argued that his behavior upon his return to Maine did not rise to
the level of leader or organizer such that an enhancement was
5 The PSR reveals that two of Belanger's prior convictions were
for operating a motor vehicle on a suspended license, which is
excluded from criminal history calculations under U.S.S.G §
4A1.2(c)(1). All of Belanger's remaining previous convictions
occurred more than fifteen years prior to Belanger's commencement
of the instant offenses. As such, they were not counted for
purposes of computing his criminal history pursuant to U.S.S.G.
§ 4A1.2(e)(3).
6 These witnesses, anonymized for the purposes of our record here,
were referred to by the parties as SI-4 and SI-5 (or Sources of
Information 4 and 5).
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warranted.
The district court overruled both objections. As to the
reliability of the witnesses, the court explained that the
witnesses had been "subject to cross-examination, . . . credibility
was tested, and I am comfortable relying upon that testimony and
concluding by a preponderance of the evidence the drug quantity to
which . . . [the] trial testimony was the source of." As for the
leadership or organizer increase, the court noted that
Belanger organized this drug conspiracy in 2002 and led
it until he departed for California sometime in 2004 or
2005. Further, the trial evidence was that he returned
from California in 2009 and thereafter functioned
essentially as a manager of the . . . conspiracy,
assisting his daughter, Kelli Mujo. The four-level
enhancement pursuant to 3B1.1 is justified in this case
even though the defendant did not exercise continuous
leadership over the conspiracy. He had at the beginning
exercised at least some degree of leadership and
organizational control over others."
Having rejected each of Belanger's objections, the court
then imposed its sentence. Though the guidelines range was, as
mentioned above, 235-293 months, the court departed downward,
imposing only a concurrent 132-month term of imprisonment for both
counts of conviction. In imposing this significantly lesser
punishment, the court explained:
I would like to be clear that the sentence that I have
just announced is the same sentence I would impose . .
. if I had granted one or more or all of the objections
that the defendant has made regarding the sentencing
guidelines in this case. Under the Section 3553 factors,
in my view, separate from the guidelines consideration,
the sentence that I have announced of 132 months is just
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and fair.
And with that, having laid out the travel of this case,
we are at long last ready to jump into Belanger's issues on appeal.
B. Analysis
Belanger's appeal concerns itself with five discrete
issues: first, the district court's allowance under Federal Rule
of Evidence 701 of Special Agent Buchanan's interpretative
testimony of various wiretapped calls; second, the Government's
supposed failure to present sufficient evidence to prove that
Belanger was involved in the conspiracy charged in the indictment;
third, the district court's refusal to give Belanger's proposed
jury instruction regarding multiple conspiracies; fourth, the
Government's supposed mischaracterization of the law regarding
withdrawal in its closing statement; and, finally, the district
court's alleged error in calculating Belanger's sentence. We
address each one by one, knocking them out as we go.
1. Special Agent Buchanan's Lay Opinion Testimony
We begin with Belanger's contention that Special Agent
Buchanan's testimony about the wiretapped calls was improperly
admitted under Rule 701. Belanger's precise objections to the
testimony are hard to pin down but, in general, it seems he
believes that numerous calls that Buchanan was allowed to testify
about contained vague language and that no proper foundation was
laid for Buchanan to credibly assess what was happening in those
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calls (i.e., whether drugs or conspiracy-related activities were
being discussed). Furthermore, Belanger contends that, at times,
Buchanan was given carte blanche to interpret otherwise
commonsense (i.e., plain English) recordings and that such
testimony had no independently useful value to the jury. These
supposed violations of Rule 701, Belanger tells us, were unduly
prejudicial and thus warrant a new trial.
We note that, in his briefing, Belanger lobs rather
lofty, general grievances at the admission of Buchanan's
testimony. But we can identify only four, particularized calls
that are referenced with even slight specificity (details of these
calls are coming shortly). We thus deem any claims outside of
these four calls forfeited. See United States v. Albertelli, 687
F.3d 439, 448-49 (1st Cir. 2012). Moreover, of the four phone
calls at issue, Belanger objected below to Buchanan's testimony as
it pertained to only one of them. Thus, though that one preserved
objection is reviewed for abuse of discretion, see United States
v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012), the three remaining
unpreserved evidentiary challenges are reviewed for plain error
only, see United States v. Etienne, 772 F.3d 907, 913 (1st Cir.
2014). "This is a difficult hurdle to vault: plain error review
exists to correct 'blockbusters,' not 'the ordinary backfires . .
. which may mar a trial record.'" United States v. Madsen, 809
F.3d 712, 717 (1st Cir. 2016) (quoting United States v. Griffin,
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818 F.2d 97, 100 (1st Cir. 1987)). Indeed, to demonstrate plain
error, an appellant like Belanger must show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001).
Before we get down to the brass tacks of the four phone
calls, we pause to give some background on Rule 701, which reads
as follows:
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. In articulating how we review evidentiary
challenges under this rule, we have made it quite clear that a
district court has a vantage point far superior to our own when it
comes to the happenings and details of a particular case. As such,
we afford it "considerable discretion" in deciding whether lay
opinion testimony is admissible under Rule 701. Valdivia, 680
F.3d at 51. That said, we have nonetheless explained that "where
[a] witness is no better suited than the jury to make the judgment
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at issue," the testimony must be excluded. 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)). This
"provid[es] assurance against the admission of opinions which
would merely tell the jury what result to reach." Id. Such
testimony, in other words, would be superfluous and would thus be
inimical to Rule 701.
When it comes to Rule 701's application in the drugtrafficking
context in particular, "we have long held that
government witnesses with experience in drug investigations may
explain the drug trade and translate coded language" through lay
opinion testimony under Rule 701. United States v. Rosado–Pérez,
605 F.3d 48, 56 (1st Cir. 2010). This makes sense. Indeed,
"[t]ime and again we have stated that Rule 701 lets in 'testimony
based on the lay expertise a witness personally acquires through
experience, often on the job.'" United States v. George, 761 F.3d
42, 59 (1st Cir. 2014) (quoting United States v. Santiago, 560
F.3d 62, 66 (1st Cir. 2009)). And understanding, interpreting,
and translating purposefully confusing drug lingo is just that--a
skill picked up and fostered by a law enforcement officer on the
job. While we acknowledge this may not be the "most traditional
lay opinion," such testimony "formally meets the requirements of
Rule 701, being rationally based on [a law enforcement officer's]
perception of the conversations; helpful in the Rule 701 sense
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broadly understood; and yet not based on expert knowledge within
the meaning of Rule 702." Albertelli, 687 F.3d at 447 (internal
quotations omitted).
a. Call #1757
We turn to the first of the four calls with which
Belanger takes issue--a call between Belanger and Mark Tasker in
which Tasker asked Belanger whether he "had any of that good stuff
yet." After playing the call for the jury, the Government asked
Special Agent Buchanan "[w]hat are they talking about there?"
Buchanan responded, "I interpret that as Mr. Tasker asking Mr.
Belanger if he's got any good cocaine or cocaine of good quality."
Belanger immediately objected (which is why, as noted above, we
review this preserved claim of error for abuse of discretion),
arguing that proper foundation had not been laid for Buchanan to
opine on his personal interpretation of the call. The district
judge initially sustained the objection, but provided the
Government with the opportunity to establish foundation. And
establish it did.
First, the Government elicited that Special Agent
Buchanan had been, at the time of trial, employed by the DEA for
approximately sixteen years and that his primary responsibility
during that time had been working on illegal narcotics
investigations. Moreover, Buchanan testified that he was a case
agent on this particular matter. As a case agent investigating
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Belanger, Mujo, and their cohort, Buchanan was not only involved
in obtaining the wiretap authorization warrants necessary for him
and his team to monitor Belanger's phone calls, but he was also
involved in listening to the thousands of calls as they came in.
He even conducted physical surveillance of various individuals
during the course of his investigation in this case. Buchanan
testified that through such activities he became intimately
familiar with the ins and outs of the conspiracy, including the
cast of characters involved.7
Buchanan also explained that based on his training and
experience with the many wiretaps conducted throughout his career,
drug dealers almost always used "veiled language" when discussing
drugs on the phone. He pointedly noted that "[y]ou don't hear
drug dealers say cocaine on the telephone or oxycodone or the name
of the drug itself. They'll . . . often use a code word that both
the parties understand. . . ." He then provided examples,
explaining that he had encountered drug traffickers using terms
like "lobster," "up or down," "wheels or tires," "fruits,"
"apples," and "blueberries" to reference drugs. "As long as both
7 Indeed, Buchanan explained that, over the course of listening in
on wiretaps, "you get to know . . . the folks involved in the case,
and you get to know . . . who's breaking the law and . . . who is
not." Because of this familiarity, agents like him are able to
quickly decipher whether the phone calls being monitored are
relevant (and thus require continued listening) or whether they
are mundane and inconsequential (thus allowing an agent to hang
up).
- 23 -
parties understand," Buchanan pointed out, "it doesn't matter what
the word is."8
As for the terminology used in this specific call ("that
good stuff") Buchanan testified that based on his dealings with
cocaine, there is a recognized difference between good cocaine
(cocaine that is purer and more potent) and bad cocaine (cocaine
that is "cut" with non-cocaine substances like baking soda, thus
making it of poorer quality). Based on this knowledge, coupled
with the fact that drug traffickers do not use the proper names of
the drugs they sell, he rationally concluded that the term "that
good stuff" was a reference to pure, non-cut cocaine.
After the Government provided this foundation, Belanger
nonetheless objected that it was still not enough. This time,
however, he was overruled by the court. We agree with the lower
court here. Indeed, the challenged testimony fulfills all of Rule
701's requirements for admissibility to be sustained. Agent
Buchanan's testimony was (1) logically connected to the extensive
experience Buchanan had not just in his field, but in this case in
particular, (2) most certainly helpful to serving the jury in their
understanding of the drug trade and what Belanger and Tasker were
talking about in this conversation, and (3) not based upon
8 And remember that numerous other witnesses involved in the
conspiracy corroborated Buchanan's assessment on this point. See
supra Part A.1.
- 24 -
specialized knowledge within the scope of Rule 702. That is all
that is needed. See United States v. Dunston, 851 F.3d 91, 97
(1st Cir. 2017) ("Where malefactors try to mask their criminal
activities by using codes, a law enforcement officer who is
equipped by knowledge, experience, and training to break those
codes can help to inform the factfinder's understanding.");
Albertelli, 687 F.3d at 447 (explaining that under Rule 701,
testimony is admissible where it "undoubtedly ha[s] a potential to
help the jury"). As such, we conclude that no abuse of discretion
can be gleaned and that the testimony was admissible.
b. Call #1056
The second call we need to address centers around Mark
Tasker's statement to Belanger that he "just need[s] a couple of
them wheels." Buchanan's interpretation of "wheels," a term he
described at trial as referring to "drugs," forms the crux of
Belanger's problem here. At trial, Buchanan conceded that he could
not precisely identify what drug the term "wheels" referred to
(i.e., cocaine or oxycodone). Because of this, Mujo's attorney
objected that the testimony was mere "speculation," particularly
since Belanger owned an automotive mechanic and towing company and
there was nothing to indicate that this particular conversation
definitively referenced drugs as opposed to, say, actual car wheels
that would be commonplace at a car maintenance shop. The district
court partially sustained the objection, telling the jury that it
- 25 -
could not utilize Buchanan's testimony to deduce what "wheels"
meant in this specific exchange, but that it could take into
consideration Buchanan's testimony that "wheels" is a term often
used by drug traffickers to refer to drugs. Belanger now appears
to want to latch onto Mujo's objection, arguing that the district
court overstepped its bounds by permitting Buchanan to testify
about what "wheels" meant. The argument is, once again,
unsuccessful.
First, we note that despite Mujo's objection, we
nevertheless review this claim for plain error since 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." United States v. Leon-Delfis, 203 F.3d 103,
113 (1st Cir. 2000). Given that the court never gave such a
directive, plain error review is appropriate. Second, although
the admission of this testimony straddles the line between what is
acceptable opinion testimony by a lay witness (and what is more
properly considered expert testimony) because there was a question
as to whether "wheels" might actually have meant tires, we cannot
conclude that the judge's ruling below met the plain error
threshold. At minimum, Buchanan's robust career most certainly
gave him the background to surmise what the term "wheels" generally
meant in light of the numerous drug trafficking investigations he
- 26 -
had conducted in his sixteen years on the job. Moreover, Buchanan
acknowledged in front of the jury that there could, indeed, be
alternative interpretations of the term "wheels." On crossexamination,
Belanger's counsel directly asked Buchanan whether
"it's possible that wheels in this case, that they actually were
wheels, they could have been car wheels, that's a possibility?"
Buchanan responded, "[a]nything is possible, but based on my
experience this was clearly a drug-related conversation."
(emphasis added). Under Rule 701, "[w]here such alternatives can
be offered, the plausibility of the witness' own position--unlike,
say, that of a medical expert--is readily measured by the jury,"
and we thus err on the side of deference to the district judge's
discretion. Albertelli, 687 F.3d at 448; see also Dunston, 851
F.3d at 97 (explaining that subjection to cross-examination
creates an "additional safeguard" to "mitigate[] any risk of unfair
prejudice from [Rule 701] testimony").
And, just to add a touch of salt to the wound here, Greg
Tasker testified at trial about this specific call and explained
that not only did he recognize his father's and Belanger's voices
in the recording, but that from his involvement in the conspiracy,
he was aware that "wheels" meant "pills" because he had heard both
his father and Belanger use that term in the past. Thus, even if
the district court committed a "clear or obvious" error, Belanger
would be unable to show that it prejudiced him in light of Greg
- 27 -
Tasker's independent, corroborating testimony on the same issue.
As such, the admission cannot be said to have affected Belanger's
substantial rights.
c. Call #750
Next, Belanger seems to take issue with Buchanan's
testimony interpreting the following conversation between Belanger
and Corey Pomerleau, a coconspirator:
Pomerleau: Well, I could probably meet you in Newport
Belanger: Yea.
Pomerleau: Yea why don't I do that, that would work.
Belanger: Yea meet at Wal Mart
Pomerleau: Um ok, what are they a piece?
Belanger: Huh?
Pomerleau: How much are they a piece?
Belanger: Uh they're 35.
Pomerleau: Alright.
Belanger: I got to pay $31 for them so.
Pomerleau: No, I know, I know, alright let me call and
see, let me give you a call right back.
The Government asked Special Agent Buchanan, "what's going on in
this conversation?" and Mujo objected (again, not Belanger),
arguing that Buchanan was being asked to interpret what was
otherwise plain English given that, at that point in the trial,
the jury was "well educated" as to the topic of conversation: the
- 28 -
price point for 30-milligram oxycodone pills. The objection was
overruled. The court accepted the Government's explanation that
while numerous other witnesses had testified as to transactions
involving "30s," Agent Buchanan lent "a certain amount of knowledge
from his training and experience about how these deals are set up,
[and] how much these pills cost, what kind of . . . a profit that
[Belanger] makes off them." And, in fact, Buchanan testified to
just that. He explained that the "pieces" being discussed were
oxycodone pills; that Belanger was explaining that he had to pay
$31 per pill and that he then would sell them for $35; and that
$35 was--at the time--a typical price per pill for 30-milligram
oxycodone pills.
Belanger now wants to push the exact same objection Mujo
made at trial--that Buchanan's testimony was inappropriate because
he was called on to do nothing more than interpret plain English
statements. We note that, again, because Belanger did not
independently object to the testimony at trial, he is merely
entitled to plain error review. Leon-Delfis, 203 F.3d at 113.
And we see nothing to warrant a plain error finding. Not to
belabor the point, but all Rule 701 requires is that the testimony
in question be "'rationally based on the perception of the
witness,' [is] 'helpful to . . . the determination of a fact in
issue,' and [is] 'not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.'" Santiago,
- 29 -
560 F.3d at 66 (quoting Fed. R. Evid. 701). And Buchanan's
testimony here fits perfectly within that scope. Terms like
"piece" and vague statements like "[u]h they're 35" are not the
type of lingo that we would label as "plain English." Buchanan's
perception of the conversation thus had the potential to be at
least minimally helpful to the jury in understanding the drug
transaction being discussed in this phone call and that is all
that is needed for it to be admissible. See Santiago, 560 F.3d at
66 (explaining that trooper's lay testimony was admissible where
it "merely explained circumstantial evidence from which the jury
could have drawn the obvious inference that the gun was there to
protect the stockpile of drugs").
d. Call #453
In the final contested call, Williams asked Belanger if
Belanger would be able to "drop 10 off, Donnie could move them
today." In reply, Belanger explained that "no" he could not
because "the guy is trusting me" and would be "checking . . . to
make sure I don't fuck up and once I got his trust I'll have them."
The Government asked Special Agent Buchanan "[w]hat's he referring
to there?" and Buchanan explained that the "drop 10 off" comment
referred to the oxycodone pills Williams wanted and that Belanger's
reply about a "guy . . . trusting me" referenced a new secondary
supplier Belanger had found with whom he wanted to establish trust
before fronting Williams drugs. Though Belanger apparently had no
- 30 -
problem with this testimony at trial and did not object (thus
subjecting him to plain error review) Belanger now views this
explanation as a no-no, insisting it constitutes "complete
interpretations of calls, where it was not necessary for the jury
to determine what was being discussed in the calls." We disagree.
In our independent read of the conversation--that is, without the
benefit of Buchanan's testimony--it is far from clear exactly what
Belanger and Williams are discussing. To say that Special Agent
Buchanan's "understanding of the oblique statement[] in th[is]
wiretap[] might be 'helpful' to the jury," would be an
"understatement." Albertelli, 687 F.3d at 447. Phrases like "drop
10 off" are certainly not common knowledge to members of the
everyday public and, at the risk of sounding like a broken record,
we note again that Buchanan was intimately involved in the
investigation of this particular drug conspiracy and was therefore
well suited to contextualize individual affairs like this phone
call. No error--plain or otherwise--can be detected here.
2. One Conspiracy, Two Conspiracies?
But wait. Regardless of whether Special Agent
Buchanan's testimony was properly admitted, Belanger tells us that
there was nonetheless a dearth of evidence to support his
conspiracy conviction as charged in the indictment. Specifically,
Belanger argues that the evidence presented at trial proved he
affirmatively withdrew from the conspiracy when he advised his
- 31 -
coconspirators of his move from Maine to California in 2005 and
that his behavior upon returning to Maine thus constituted a
separate, distinct conspiracy. In other words, Belanger contends
that there existed a variance between the crime charged in the
indictment and the crime that the Government proved. In light of
this, Belanger contends that the district court erred in denying
his motion for an acquittal pursuant to Fed. R. Crim. P. 29. It
now falls on us to "determine whether such a variance occurred
and, if so, whether it adversely impacted the appellant's
substantial rights." United States v. Fenton, 367 F.3d 14, 18
(1st Cir. 2004). Regrettably for Belanger, however, we find his
argument here to be fruitless, concluding instead that the evidence
presented by the Government more than proved its case concerning
the existence of a single, overarching conspiracy.
To begin, "[w]hether evidence shows one or many
conspiracies is a question of fact for the jury and is reviewed
only for sufficiency of the evidence." United States v. Niemi,
579 F.3d 123, 127 (1st Cir. 2009) (citing United States v. David,
940 F.2d 722, 732 (1st Cir. 1991)). And a motion for judgment of
acquittal on sufficiency grounds is, of course, subject to de novo
review. United States v. Cruz–Rodriguez, 541 F.3d 19, 26 (1st
Cir. 2008). We have previously explained that in engaging in this
sort of review, "we examine the evidence--direct and
circumstantial--as well as all plausible inferences drawn
- 32 -
therefrom, in the light most favorable to the verdict, and
determine whether a rational fact finder could conclude beyond a
reasonable doubt that the defendant committed the charged crime."
United States v. Wyatt, 561 F.3d 49, 54 (1st Cir. 2009) (citing
Cruz–Rodriguez, 541 F.3d at 26). We do not "weigh the evidence or
make credibility judgments; these tasks are solely within the
jury's province." United States v. Hernández, 218 F.3d 58, 64
(1st Cir. 2000) (citing United States v. Ortiz, 966 F.2d 707, 711
(1st Cir. 1992)).
And when it comes to evaluating whether a single
conspiracy existed (as opposed to two), we are clear to "consider
the totality of the circumstances, paying particular heed to
factors such as [1] the existence of a common goal, [2] evidence
of interdependence among the participants, and [3] the degree to
which their roles overlap." Fenton, 367 F.3d at 19 (citing United
States v. Portela, 167 F.3d 687, 695 (1st Cir. 1999)). Here, all
three of those factors support the Government's contention (and
the jury's conclusion) that Belanger was guilty of the charged,
single conspiracy.
From the beginning of the charged conspiracy in 2002 all
the way up until the conspiracy's conclusion in 2014, the evidence
certainly supported the notion that the individuals involved in
this conspiracy shared a clear goal: the distribution of drugs
(cocaine and oxycodone, to be exact) throughout Central Maine.
- 33 -
This goal was supported by the stealthy transport of the drugs
from Rhode Island up to Maine in compartments within various
vehicles. This very particular modus operandi existed from the
beginning of the conspiracy until its end and thus we have no
problem checking off factor number one.
As for the overlap and interdependence among the various
coconspirators, evidence supporting both factors is quite
apparent. Indeed, there was testimony that as early as 2002,
Belanger relied on a number of individuals (e.g., Williams, Mujo,
Tasker, and others) to drive down to Rhode Island to his drug
source, Miguel, and then transport cocaine and oxycodone (hidden
intricately within vehicle spaces, mind you) back up to Maine.
There was evidence that when Miguel was arrested, he was able to
"hook[] [Mujo] up with one of his boys" who then replaced him as
the Rhode Island drug source for the conspiracy. Multiple
coconspirators testified about their trips down to Rhode Island
and how the drugs were subsequently unpacked by Belanger, Mujo, or
other coconspirators once they arrived back up to Maine. Testimony
also revealed that the members of the conspiracy used common
terminology among one another when referencing the illegal
contraband they were selling. Coconspirators at trial told the
jury that the group often used common terms like "muffins,"
"blueberries," "uptown," "oranges," and "wheels" to refer to
specific types of drugs, lending credence to the fact that the
- 34 -
members of this conspiracy were acquainted enough with one another
to talk the coded talk. See Niemi, 579 F.3d at 127 (explaining
that evidence coconspirators "used the same code words for drugs"
suggested the existence of one conspiracy, rather than multiples
conspiracies).
There was further evidence that Mujo and Belanger often
supplied the same people with the same sorts of drugs. Greg
Tasker, for example, told the jury that upon Belanger's return
from California, Greg purchased drugs both from Mujo at her house
and Belanger at his trailer. He further noted that it was his
impression that Belanger received his drugs from Mujo. And when
Williams had a falling out with Mujo (such that she refused to
directly supply him with narcotics), he quickly turned to Belanger
for his drug fix. Belanger, in turn, got those drugs from Mujo.
And, finally, the interdependence among the coconspirators was
particularly highlighted given the familial relationships that
permeated the conspiracy. Belanger and Mujo--father and daughter-
-served as leaders of the group; Mark Tasker and his son Greg both
assisted in the buying, selling, and transportation of contraband;
John Williams and his wife, Cynthia, were also members of the
conspiracy; and Michael Thompson, another seller and user of drugs
in the conspiracy, was the nephew of both Mark Tasker and John
Williams. While it is true that "[a] group may engage in a single
conspiracy even if they are somewhat loosely related," id., and
- 35 -
that "the proof need not show that each conspirator knew of all
the others, nor that the group remained intact throughout the
duration of the enterprise," Fenton, 367 F.3d at 19, here, the
coconspirators not only knew generally of one another, but in many
cases were related to one another. Without a doubt, factors two
and three (interdependence and overlap) are satisfied.
Belanger appears to disagree with this analysis,
contending that two discrete events should alter our outcome.
First, Belanger reminds us that prior to his move to California,
Mujo went behind his back and began to supply Belanger's primary
business partner, David Snow, with cocaine unbeknownst to
Belanger. This betrayal, Belanger seems to tell us, amounts to
behavior representative of a separate conspiracy. Second (as
mentioned above), Belanger argues that when he moved to California
in 2005, he affirmatively withdrew from the conspiracy by not just
informing his coconspirators that he wanted to remove himself from
the drug trade and start a better life, but by also fully
discontinuing his involvement in the group's drug trafficking and
prohibiting his drug supplier, Miguel, from assisting his former
coconspirators. Neither of Belanger's contentions holds water.
As to Belanger's first point, the fact that Mujo went
behind Belanger's back and independently approached Belanger's
partner, Snow, for business does nothing to suggest to us that
some alternative conspiracy thereby formed. Multi-member drug
- 36 -
conspiracies like the one here are complex entities comprised of
a group of criminals decidedly working in tandem to accomplish
some unlawful goal--here, drug trafficking. It is not far-fetched
to assume that shifting alliances and spouts of deception among
members of such a group would be par for the course and,
importantly, would not necessarily undermine the overarching goals
of the conspiracy. We cannot accept, therefore, Belanger's
contention that one large conspiracy should be severed into
multiple smaller ones solely based on changes of allegiances among
coconspirators so long as there is evidence the larger conspiracy
has not ended and the defendant has not withdrawn from that
conspiracy. This is particularly so where, as here, Mujo's
supposedly deceptive act did not fundamentally change any aspect
of the conspiracy's operational activities. Indeed, not only did
Mujo utilize the exact same drug source that Belanger used in Rhode
Island, but she also then sold and supplied the drugs to
essentially the same cast of characters up in Maine that her father
did.
Belanger's second argument--that he withdrew from the
conspiracy by moving to California in 2005--is equally unavailing.
"Withdrawal is a demanding defense requiring affirmative evidence
of an effort to defeat or disavow the conspiracy." United States
v. Ngige, 780 F.3d 497, 504 (1st Cir. 2015) (quoting United States
v. Potter, 463 F.3d 9, 20 (1st Cir. 2006)); see also United States
- 37 -
v. Ciresi, 697 F.3d 19, 27 (1st Cir. 2012) (explaining that the
standard for withdrawal is "'strict' and not easily met" (quoting
United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987))).
Indeed, "[w]hen coconspirators refrain, for a period of time, from
engaging in drug transactions, this does not, in and of itself,
constitute termination or abandonment of the conspiracy." United
States v. Mangual-Santiago, 562 F.3d 411, 423 (1st Cir. 2009).
While Belanger tells us that he "affirmatively withdrew from the
conspiracy," he does not meaningfully back his assertion up with
any factual evidence from the record. True, there was testimony
from one coconspirator that the move out West was motivated in
part by Belanger's desire to "straighten out his life . . . before
him or his wife died [from drug overdoses]." But there was
competing testimony from another coconspirator that Belanger moved
because "it was getting too hot," and, "[t]he cops was [sic]
looking in too close to the drug business." Statements disavowing
a conspiracy must be unambiguous, clearly evincing a "change of
heart or abandonment." United States v. Arboleda, 929 F.2d 858,
871 (1st Cir. 1991). And here, the competing accounts of why
Belanger relocated to California suggest that neither Belanger’s
move nor his communications about the move conveyed with sufficient
clarity that he intended to repudiate or abandon the conspiracy.
See Ciresi, 697 F.3d at 27-28 (statements like "seems like he
doesn't want nothin doin'" and that defendant was "out" were too
- 38 -
ambiguous to claim withdrawal). Not only that, but upon Belanger's
return to Maine, he jumped back into the drug trade with the same
troop of caballers with whom he had worked prior to moving to
California. The evidence thus reasonably supported the inference
that when Belanger came back to the Pine Tree State, he furthered
the ongoing conspiracy and its continuity of operations (with, we
note, the new drug source) by reimmersing himself into the drug
trade with both his daughter and his previous associates.9
Additionally, there is nothing in the record to support
Belanger's contention that he "did not allow his connection to the
supply of drugs [i.e., Miguel] to be used by his coconspirators .
. . to maintain the conspiracy [while he was away in California]."
The record is devoid of anything that would suggest Belanger
attempted to implement such preventative measures.
Onward.
3. Belanger's Requested "Multiple-Conspiracy" Jury Instruction
Related to the just above discussion, Belanger also
tells us that the district court erred when it denied his requested
"multiple-conspiracy" jury instruction. We review a court's
decision not to issue a requested jury instruction for abuse of
9 At oral argument, we asked counsel if, hypothetically, Belanger
had moved away to California under the same circumstances (i.e.,
all else being equal) and was never heard from again, could we
appropriately conclude that he had, in effect, withdrawn from or
abandoned the ongoing conspiracy in Maine. Our analysis here does
not shed light on this legally distinct (but important) question.
- 39 -
discretion and only reverse if the proposed instruction is "(1)
substantively correct; (2) was not substantially covered in the
charge actually delivered to the jury; and (3) concern[ed] an
important point in the trial so that the failure to give it
seriously impaired the defendant's ability to effectively present
a given defense." United States v. González–Pérez, 778 F.3d 3, 15
(1st Cir. 2015) (quoting United States v. González–Soberal, 109
F.3d 64, 70 (1st Cir. 1997)). Here, Belanger asked the following
to be read to the jury:
The government has the burden of proving that only one
overall conspiracy existed as opposed to separate and
independent conspiracies. If you find that a conspiracy
existed before 2005, and a separate conspiracy existed
after 2005, then you must determine whether the
government has proven beyond a reasonable doubt that the
Defendants conspired to distribute and possess with
intent to distribute . . . cocaine and oxycodone in the
later conspiracy. If you find that the government has
proven the Defendants' participation in the later
conspiracy beyond a reasonable doubt, then you must
determine (1) the amount of cocaine the government has
proven beyond a reasonable doubt was involved in the
later conspiracy, and (2) the amount the government has
proven beyond a reasonable doubt that each Defendant's
conduct in the later conspiracy involved.
(emphasis in original). Quoting United States v. Brandon, Belanger
tells us that the point of this particular instruction was to
address his "main concern . . . that [without the instruction]
jurors [could have been] misled into attributing guilt to
[Belanger] based on evidence presented against others who were
involved in a different and separate conspiratorial scheme." 17
- 40 -
F.3d 409, 450 (1st Cir. 1994). He further claims that the risk of
"evidentiary spillover" from the actions of his codefendants to
him was high and that the proposed instruction was vital to avoid
any miscarriage of justice that might have resulted from that
"spillover." Not so.
Though we recognize that "a court should instruct on the
issue [of multiple conspiracies] 'if, on the evidence adduced at
trial, a reasonable jury could find more than one such illicit
agreement, or could find an agreement different from the one
charged,'" United States v. Balthazard, 360 F.3d 309, 315 (1st
Cir. 2004) (quoting Brandon, 17 F.3d at 449), here, Belanger's
supposed concern is one that was substantially alleviated by the
instruction actually proffered by the trial court. Indeed, the
court told the jury:
For you to find the defendant guilty of conspiracy, you
must be convinced that the Government has proven each of
the following things beyond a reasonable doubt, first,
that the agreement specified in the indictment and not
some other agreement or agreements existed between at
least two people to distribute and possess with intent
to distribute cocaine and oxycodone; and second, that
the defendant willfuly joined in that agreement.
(emphasis added). That is, the court was clear that the jury could
not find Belanger guilty if it determined that the agreement(s)
proved by the Government at trial did not match the agreement
specified in the original indictment. We have given our blessing
time and time (and time) again to this exact same instruction (or
- 41 -
ones nearly identical to it) when defendants have complained that
they were entitled to a multiple-conspiracy charge. See United
States v. Walker-Couvertier, 860 F.3d 1, 16 (1st Cir. 2017)
(explaining in a situation with the same instructions that "[t]hese
instructions made pellucid that the government had to prove not
only that an overall conspiracy existed but also that [defendant]
was a part of it. If the jurors entertained any reasonable doubt
that [defendant] was a part of the conspiracy charged, the
instructions told them that they must acquit. These clearly
articulated instructions protected [defendant] from any
prejudice"); Niemi, 579 F.3d at 125–27 (same); Balthazard, 360
F.3d at 315–16 (same). And we may not depart from such clear
precedent. Moreover, we have previously explained that "[f]ailure
to include superfluous language is not an error," and here the
requested instruction would serve no legally meaningful purpose
beyond what was already covered by the original instruction.
Franchina v. City of Providence, 881 F.3d 32, 56 (1st Cir. 2018).
We thus disagree with Belanger regarding the worth he attributes
to his proposed instruction, and instead conclude that the judge
did not abuse his discretion in refusing to give it. We move on.
4. The Prosecutor's Closing Argument
Belanger's next beef with the proceedings below focuses
on what he perceives as an inappropriate closing argument on the
part of the Government. As he tells it, the prosecutor's use of
- 42 -
a train analogy to explain the legal concept of withdrawal
misstated the law and was so prejudicial as to constitute
reversible error. Not just any error, but plain error. You see,
Belanger did not object to the statement in question during trial
and so plain error must be the lens through which we review his
claim here. See United States v. Hansen, 434 F.3d 92, 101 (1st
Cir. 2006). To remind, under plain error Belanger must show us
that "(1) an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Duarte, 246 F.3d at 60. And
we have added a caveat to this standard, noting that reversal is
only appropriate if, given the totality of the circumstances, the
contested prosecutorial conduct "so poisoned the well that the
trial's outcome was likely affected." United States v. Henderson,
320 F.3d 92, 107 (1st Cir. 2003) (quoting United States v.
Sepulveda, 15 F.3d 1161, 1188 (1st Cir. 1993)). That's a rather
tough sell, one that requires us to consider the following: "(1)
the severity of the prosecutor's misconduct, including whether it
was deliberate or accidental; (2) the context in which the
misconduct occurred; (3) whether the judge gave curative
instructions and the likely effect of such instructions; and (4)
the strength of the evidence against the defendants." United
States v. Wihbey, 75 F.3d 761, 772 (1st Cir. 1996). We cannot say
- 43 -
Belanger has cleared this threshold.
Remember, the specific train analogy used by the
prosecution at trial was the following:
[Y]ou need to think of the conspiracy like a train, a
train, choo-choo. It starts in 2002, and it travels
from Rhode Island to Maine. It travels from 2002 all
the way up to 2014. And as the train travels along,
people get on, people get on that conspiracy train. They
get on the train by willfully joining the understanding.
And once they're on that train and they have that
understanding, they're in the conspiracy. The only way
that you can get off that train once you're on it --
well, there's two ways, you can die . . . or you can
derail the [t]rain. Derail the train. And the way you
derail the train is you frustrate efforts of the
conspiracy. You go to the other conspirators, every
single one of them and say, I'm out, I'm done, I'm
finished, I'm through, I don't want anything else to do
with drugs. You go to the cops. You go to Special Agent
Buchanan and say . . . I want to help you catch the
people that I have been dealing with for the past, you
know, 10 years, even my daughter. That's what you do.
You derail the train. You cannot get off of that train,
you cannot get rid of that understanding unless you
either die or derail the train.
Citing to First Circuit precedent, Belanger tells us that
withdrawal "[t]ypically [] requires either . . . a full confession
to authorities or a communication by the accused to his coconspirators
that he has abandoned the enterprise and its goals."
Ciresi, 697 F.3d at 27 (quoting United States v. Piper, 298 F.3d
47, 53 (1st Cir. 2002)) (emphasis added). The train analogy used
by the Government, he says, fails to properly convey this "either
or" dichotomy. That is, Belanger believes the Government's analogy
improperly advised the jury that for withdrawal to apply, the law
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requires not just a confession to authorities but also notification
to each of the coconspirators.
This supposed problem seems to stem from the lack of the
word "or" between the sentence reading "[y]ou go to the other
conspirators, every single one of them and say, I'm out, I'm done,
I'm finished, I'm through, I don't want anything else to do with
drugs," and the sentence reading "[y]ou go to the cops." But from
where we sit as an appellate court with considerable distance from
the original proceedings, it is not abundantly clear at all whether
the lack of the word "or" represents some misstatement of the law
or whether, for example, the prosecutor was simply taking a
dramatic, disjunctive pause before laying out the alternative
means by which Belanger could withdraw. The fact that Belanger's
attorney did not object to the articulation below certainly seems
to suggest that the remarks were not seen at the time as being
erroneous or prejudicial. See United States v. Kasenge, 660 F.3d
537, 543 (1st Cir. 2011) ("This failure not only suggests that
[defendant] did not consider the remarks prejudicial, but also
deprived the district judge of the opportunity to resolve any
potential confusion."); see also United States v. Marshall, 109
F.3d 94, 100 (1st Cir. 1997) (explaining that "an excellent test
is whether counsel contemporaneously thinks the line has been
crossed, and objects, which, in turn, enables the court to instruct
the jury"). And, at the very least, we cannot conclude that the
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remarks were "severe."
The Government's closing was far from model and we
discourage any further use of it. At the very least, the
Government's poor choice of language has led to an appeal on this
issue. That said, we cannot find error when the judge gave what
was arguably a curative instruction. Indeed, before the judge
sent the jury to deliberate, he explained exactly what was required
for Belanger's withdrawal argument to be successful. He stated:
Members of the jury, during the course of closing
arguments, you heard reference at times to this idea of
withdrawal from a conspiracy. And I want to give you an
additional instruction for you to consider in connection
with your consideration of Count 1 in this case, the
conspiracy count as it applies to both defendants, Mr.
Belanger and Ms. Mujo. So I am going to instruct you
now on what withdrawal from a conspiracy is. To withdraw
from a conspiracy, a conspirator must act affirmatively
either to defeat or disavow the purposes of the
conspiracy by either making a full confession to
authorities or by communicating to his coconspirators
that he has abandoned the enterprise and its goals.
(emphasis added). "Our law assumes that jurors follow jury
instructions and thus that they followed the judge's, not
counsel's, definition. . . ." United States v. Gonzalez-Gonzalez,
136 F.3d 6, 9 (1st Cir. 1998). And so, even if the Government's
conveyance of the standard for withdrawal was not as eloquent as
it could have been, the judge's subsequent withdrawal instruction
certainly cured any possible harm.
Finally, as noted at length above, see supra Part B.2,
the evidence suggesting Belanger did not withdraw was quite strong.
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Indeed, his behavior upon returning to Maine (i.e., getting back
into the drug trade) was indicative not of someone who had
disavowed and abandoned the conspiracy, but of someone who took a
temporary reprieve.
In sum, no plain error can be detected here.
5. Belanger's Sentencing
There's just one last loose end to dispose of. Belanger
tells us the district court got it wrong when it inappropriately
calculated the drug quantity attributable to him throughout the
conspiracy by relying on faulty testimony from drug-addict
witnesses (thus yielding a guidelines base offense level of 32)
and that it erred in giving him a two-level enhancement under
U.S.S.G. § 2D.1.1(b)(12) based on his role as a leader or organizer
in the conspiracy. The district court's findings must satisfy the
preponderance of the evidence standard. United States v. Pierre,
484 F.3d 75, 89 (1st Cir. 2007). And because those findings are
fact-based, we review each for clear error. Id.; United States v.
Colón-Muñoz, 318 F.3d 348, 364 (1st Cir. 2003) ("Role-in-theoffense
determinations are innately fact-specific. The court of
appeals must, therefore, pay careful heed to the sentencing judge's
views." (quoting United States v. Rostoff, 53 F.3d 398, 413 (1st
Cir. 1995))). Clear error cannot be said to exist unless "on the
entire evidence [we are] left with the definite and firm conviction
that a mistake has been committed." United States v. Brown, 298
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F.3d 120, 122 (1st Cir. 2002) (quoting Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573 (1985)) (alteration in original).
We see no reason to venture into the weeds here. The
PSR's sentencing guidelines range for Belanger (with the
supposedly problematic enhancement and drug quantity calculation)
was 235-293 months. But the district court departed downward
significantly, imposing a 132-month term of imprisonment. In doing
so, the court noted that "the sentence that I just announced is
the same sentence that I would impose . . . if I had granted one
or more or all of the objections that the defendant has made
regarding the sentencing guidelines in this case." Consequently,
even if there were merit to Belanger's arguments, any error would
necessarily be harmless. See United States v. Fernández–Garay,
788 F.3d 1, 5 (1st Cir. 2015) ("[A]n error is deemed harmless if
a reviewing court can say with fair assurance that the sentencing
court 'would have imposed the same sentence even without the
error.'" (quoting United States v. Tavares, 705 F.3d 4, 25 (1st
Cir. 2013))). We therefore have no reason to sort through
Belanger's importunings since doing so would yield no change to
his 132-month sentence.

Outcome: Our work here done, we affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments: