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United States v. Dunston

United States Court of Appeals, First Circuit

March 15, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JAMES DUNSTON, Defendant, Appellee. UNITED STATES OF AMERICA, Appellee,
v.
SERGIO HERNANDEZ, Defendant, Appellee. UNITED STATES OF AMERICA, Appellee,
v.
ANTHONY WOOLDRIDGE, Defendant, Appellee.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]

          Peter 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.

          Mark T. Quinlin, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Barron, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit Judge.

          SELYA, Circuit Judge.

         In 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.

         I. BACKGROUND

         We 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 investigation reports.

         This 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.

         The 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.

         The 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.

         It is 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).

         After 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).

         Each 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 all defendants."

         The 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.

         II. ANALYSIS

         The 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 sentencing error.

         A. Lay Opinion Testimony.

         Dunston 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 agree.

         All 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."

         Application 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).

         Of 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 450.

         In the 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 crack.

         In this 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.

         Confronted 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 447.

         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. 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 serious ...


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