United States of America v. Roger Bellanger

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.

Our work here done, we affirm.