FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
J. Cyr, with whom Law Offices of Peter J. Cyr were on brief,
for appellant Wooldridge.
Michael D. Day, with whom The Day Law Firm, LLC was on brief,
for appellant Hernandez.
Xiomara M. Hernández on brief for appellant Dunston.
T. Quinlin, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Barron, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit
cases in which defendants are accused of trafficking in
narcotics, drug quantity is often both an element of the
offense and a critical integer in the sentencing calculus.
These appeals illustrate that duality and, at the same time,
serve to explicate the shifting standards of proof that
pertain. Because the court below applied these standards
appropriately, we affirm both of the challenged convictions
and two of the three challenged sentences. With respect to
the third sentence, though, the government concedes that the
district court relied on too weak a foundation in classifying
the defendant as a career offender and we are not persuaded
by the government's attempt to brand the error harmless.
We therefore remand that sentence for further proceedings
consistent with this opinion.
start with an overview of the case, drawing relevant facts
from the trial transcripts, line sheets of recorded telephone
calls introduced into evidence, and (where appropriate)
undisputed portions of the defendants' presentence
case has its roots in an investigation into drug dealing in
and around Worcester, Massachusetts, commenced by the Drug
Enforcement Administration (DEA) and local police officers.
The probe initially focused on defendants James Dunston and
Sergio Hernandez. Its scope later expanded to include
defendant Anthony Wooldridge.
investigation was launched with a number of controlled buys:
between January and June - all dates are in 2012 unless
otherwise indicated - an undercover DEA agent bought nearly
forty-four grams of crack cocaine from Dunston and Hernandez
in sixteen separate transactions. Intelligence gained during
these sorties furnished the basis for properly authorized
wiretaps on both Hernandez's telephone and the telephone
of yet another coconspirator (Richard Cruz). Between June and
September, the agents intercepted close to 30, 000 calls and
text messages. The wiretapped intercepts indicated that
Dunston, Hernandez, and Wooldridge were regularly dealing
crack cocaine in Worcester and its environs.
wiretaps revealed, inter alia, that the defendants acquired
powder cocaine on no fewer than seven occasions in the summer
months and attempted at least one further acquisition.
Shortly after receiving the powder, the defendants promptly
converted it to crack. They frequently discussed crack
conversion techniques, described the results of particular
conversions, and boasted about their ability to convert
powder to crack without losing any appreciable drug weight.
said that all good things come to an end and, in July,
Wooldridge was arrested during a traffic stop after police
officers conducted a pat-frisk and found ninety-three grams
of crack cocaine on his person. Dunston and Hernandez were
arrested in September. All three were charged with conspiring
to possess with intent to distribute both crack cocaine and
powder cocaine. See 21 U.S.C. §§
841(a)(1), 846. Additionally, Wooldridge was charged with
possession of crack cocaine with intent to distribute,
see id. § 841(a)(1), and Hernandez was charged
with being a felon in possession of a firearm and ammunition,
see 18 U.S.C. § 922(g)(1).
some preliminary skirmishing, all three defendants waived
indictment and pleaded guilty to superseding informations
charging them with, as relevant here, conspiring to possess
with intent to distribute crack cocaine. The informations
specified that the charged conspiracy "involved 280
grams or more of a mixture and substance containing a
detectable amount of cocaine base" - a quantity
sufficient to trigger a ten-year mandatory minimum sentence.
See 21 U.S.C. § 841(b)(1)(A)(iii).
defendant pleaded guilty to the underlying conspiracy
offense, reserving, however, the right to contest at a bench
trial whether the amount of crack cocaine reasonably
foreseeable or attributable to him was 280 grams or more
(thus exposing him to the mandatory minimum sentence). The
district court thereafter held an eight-day bench trial, at
which it heard, inter alia, recordings of intercepted calls
as well as testimony from a DEA agent (Timothy Boyle), who
interpreted the slang and jargon that permeated in the
recordings. At the conclusion of all the evidence, the court
found "beyond a reasonable doubt that over 280 grams of
cocaine base [wa]s attributable and reasonably foreseeable to
district court ordered the probation department to prepare
individual presentence investigation reports. At the
disposition hearings, the court adopted the reports without
change and classified all three defendants as career
offenders under the sentencing guidelines. It found
Wooldridge responsible for at least 840 grams of crack
cocaine and sentenced him to a 132-month term of immurement.
With respect to Dunston and Hernandez, the court found each
of them responsible for at least 2.8 kilograms (2, 800 grams)
of crack cocaine; sentenced Dunston to 144 months'
imprisonment; and sentenced Hernandez to 162 months'
imprisonment. These timely appeals followed.
defendants' appeals have been consolidated, and we turn
first to the claims of error that implicate their
convictions. From that point, we proceed to their claims of
Lay Opinion Testimony.
contends that the district court should not have allowed
Agent Boyle to testify about the meaning of slang terms and
jargon used in the course of the wiretapped conversations. He
submits that although Boyle may have been qualified to give
some lay opinion testimony, the government failed to erect an
adequate foundation for his interpretations of particular
slang terms. To illustrate his point, Dunston notes that
Boyle was allowed to testify that the word "tweezy"
referred to crack cocaine and that the phrase "step up a
yard" referred to turning powder into crack. In
Dunston's view, Boyle's familiarity with the
defendants' conversations did not qualify him to give an
informed opinion about the meaning of these and other
specific phrases used within those conversations. We do not
three defendants raised this issue below, but only Dunston
pursues it on appeal. Objections to the admission of evidence
are reviewed for abuse of discretion. See United States
v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012). The
parties agree that Agent Boyle's testimony should be
considered lay opinion testimony. Hence, Federal Rule of
Evidence 701 controls. See id. Rule 701 permits the
admission of lay opinion testimony "rationally based on
the witness's perception" that would help the
factfinder "determin[e] a fact in issue."
of Rule 701 in the drug-trafficking context is not novel:
"we have long held that government witnesses with
experience in drug investigations may explain the drug trade
and translate coded language" for factfinders through
lay opinion testimony. United States v.
Rosado-Pérez, 605 F.3d 48, 56 (1st Cir. 2010);
accord United States v. Hoffman, 832 F.2d 1299, 1310
(1st Cir. 1987) (holding that "interpretation of codes
and jargon used in the drug trade can be supplied through one
experienced in the field"). Such testimony is especially
useful where, as here, it can afford the factfinder the
benefit of specialized knowledge. See United States v.
Albertelli, 687 F.3d 439, 446 (1st Cir. 2012).
course, such interpretive testimony must be anchored in the
witness's personal experience in the field, see
Hoffman, 832 F.2d at 1310, and his experience-based
understanding of the meaning of the terms used, United
States v. Prange, 771 F.3d 17, 28 & n.3 (1st Cir.
2014). Put another way, "an interpretation of a phrase
or reference ought to be explicable" - a standard that
typically requires the witness to point to similar statements
surrounding similar events. Albertelli, 687 F.3d at
case at hand, the government erected a sturdy foundation for
Boyle's testimony. The record reflects that Boyle had a
twenty-four-year career in law enforcement, with significant
experience in undercover drug investigations. He had received
specialized training in narcotics enforcement, had
participated in over fifteen wiretap investigations, and had
supervised more than twenty other such investigations. As
part of his duties, he had reviewed audio and videotape from
undercover crack cocaine purchases "hundreds" of
times and had taken part at least once in an undercover
operation in which he observed powder being converted to
particular probe, Boyle reviewed nearly all of the 30, 000
calls and texts collected during the wiretaps. He not only
drew on his extensive experience to inform his understanding
of specific slang terms but also took into account the
context in which those terms were used. Boyle explained that
he often listened to "several calls leading up to"
the use of a given bit of slang as well as
"conversations that would take place after that" to
ensure his understanding.
with objections, the district court prudently allowed defense
counsel to conduct a voir dire and question Boyle about his
credentials, his experience, and his knowledge. This
additional safeguard, coupled with Boyle's
cross-examination by all three defense attorneys, mitigated
any risk of unfair prejudice from his testimony. See
United States v. Henry, F.3d, (1st Cir. 2017) [No.
15-2487, slip op. at 21]; Albertelli, 687 F.3d at
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. So it is
here: the government provided the district court with ample
reason to conclude that Boyle was knowledgeable about the
idiom of the drug trade and, in particular, the vernacular of
this group of miscreants. On this record, we hold, without