APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE Hon. John A. Woodcock, U.S. District Judge
Merritt Schnipper, with whom Schnipper Hennessy was on brief,
for appellant Ocean.
Kretzer, with whom Law Offices of Seth Kretzer was on brief
for appellant Mitchell.
M. Bunker, Assistant United States Attorney, with whom Halsey
B. Frank, United States Attorney, was on brief, for appellee.
Howard, Chief Judge, Kayatta, Circuit Judge, and Torresen,
[*] Chief U.S.
TORRESEN, CHIEF DISTRICT JUDGE.
a joint jury trial, Akeen Ocean and Jermaine Mitchell were
convicted of a conspiracy to distribute and possess with
intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 846 and 841(a)(1). The district court sentenced
Ocean to 120 months imprisonment with three years of
supervised release and Mitchell to 260 months imprisonment
with five years of supervised release. On appeal, Ocean
claims that: (1) there was insufficient evidence to convict
him of the charged conspiracy; (2) the admission of recorded
jailhouse conversations he had with a girlfriend who
cooperated with the Government violated his Sixth Amendment
right to counsel; and (3) the sentencing judge erred in
calculating his drug quantity. Mitchell argues that allowing
two law enforcement witnesses to testify that a particular
substance was crack cocaine was both evidentiary error and a
violation of his Sixth Amendment right to confrontation.
Finding no merit in any of the appellants' claims of
error, we affirm both convictions and Ocean's sentence.
Sufficiency of the Evidence
Ocean raised his sufficiency objection in a Rule 29 motion,
the standard of review is de novo. United States
v. Ramírez-Rivera, 800 F.3d 1, 16
(1st Cir. 2015). In considering the totality of the direct
and circumstantial evidence, we draw all inferences in favor
of the government and consistent with the verdict, and
"we will reverse only if the verdict is
irrational." Id. (quoting United
States v. Brandao, 539 F.3d 44, 50
(1st Cir. 2008)). Here, we recount the facts against Ocean on
the conspiracy count in the light most favorable to the
verdict. United States v. Rodriguez, 162 F.3d 135,
140 (1st Cir. 1998). We address the facts pertinent to other
claims later in the opinion.
One of the Indictment alleged that between January 1, 2010
and August 30, 2013 in the District of Maine, Defendants
Mitchell and Ocean, along with Jeffrey Benton, Christian
Turner, Willie Garvin, Torrence Benton, Jeremy
Ingersoll-Meserve, Jacqueline Madore, David Chaisson, Burke
Lamar, and Wendell White, conspired to distribute and possess
with the intent to distribute 280 grams or more of cocaine
evidence at trial established that Defendant Mitchell oversaw
the distribution of crack cocaine that was being transported
from New Haven, Connecticut to Bangor, Maine. Mitchell was
assisted in the Bangor area by Christian Turner and a man
distribution of the crack in and around Bangor depended on a
network of local addicts, including Defendant Ocean, his
girlfriend Christie, and others. For every four or five grams
of crack sold, each addict would earn a gram of crack for
personal use. The going rate to the addicts was about $100
per gram of crack. By selling the crack to their friends and
acquaintances, the addicts provided the customer base for the
operation and were able to support their own habits.
operated out of Christie's apartment on Court Street in
Bangor for two or three months in 2011. Mitchell then
installed Rodrigo at the Court Street apartment so that
Mitchell could tend to business elsewhere. Rodrigo assumed
the role of doling out the crack to the addict-dealers and
collecting the money from them. Mitchell came by frequently
to collect the proceeds. During this period, Ocean was
staying several nights a week at Christie's place.
was not pleased when Rodrigo moved into Christie's
apartment because he thought it would attract the attention
of law enforcement. Despite his displeasure with the
arrangement, Ocean continued to purchase crack from Rodrigo.
Rodrigo testified that Ocean was "high all the time, but
he . . . also brought me a lot of . . . clientele. He helped
me out a lot." Because Ocean did not like people coming
to the residence, he conducted his sales away from the Court
Street apartment. By Christie's estimate, during the five
or six months that Rodrigo was at her residence, Ocean
purchased about 100 grams of crack from him. Three witnesses
testified that they purchased crack from Ocean, with one
witness estimating that he purchased approximately 40-50
grams of crack from Ocean between 2010 and 2013.
who was not initially happy about Rodrigo living at her
apartment, grew even more tired of him after he began to
short her and deal directly to her customers. Rodrigo
testified that at some point Christie stopped coming home
because she owed him and other distributors money.
Eventually, Rodrigo moved out of the apartment and set up
shop at the homes of other conspirators. Ocean continued to
help Rodrigo after he moved out. Rodrigo testified that Ocean
also bought crack directly from Turner from time to
Haven police conducted a taped interview with Ocean in
September of 2014. The recording was played at trial, and it
corroborated much of the witnesses' testimony. In that
interview, Ocean admitted that he had dealt with Rodrigo and
Turner in Bangor for about eighteen months in 2010 and 2011.
He told the detectives that his girlfriend introduced him to
Rodrigo who was staying with her. He explained that he was a
"middleman" "running to support my
habit." He stated that the amounts he would buy from
Rodrigo would vary anywhere from two to twenty grams in a
day. Although he was not as familiar with Turner, Ocean
acknowledged that he had met him and that he could call
Turner if Rodrigo was out of product. Ocean described a
falling-out with Rodrigo after Rodrigo stole from him. He
admitted that he knew others who were involved from Bangor,
including Madore and a woman named Fern. He claimed that he
was not "in the loop" with Rodrigo and Turner, and
he denied ever traveling to Connecticut to reup with them. He
summed up his involvement like this: "I bought drugs
from them and kept it moving."
in recorded jailhouse conversations also admitted at trial,
Ocean, apparently referring to his interview with the New
Haven detectives, told Christie:
I said if that's what you call it, yeah I was a
middleman. . . . I say yeah, I might have got some money out,
I might have got a couple of dollars out of it, I might have
got some crack, that's where I fucked up.
framing his sufficiency challenge, Ocean concedes that the
evidence established a conspiracy to distribute cocaine base
from New Haven to Bangor and that he participated in a branch
of this venture. He claims that the government alleged a hub
and spoke conspiracy around Mitchell and Benton and argues
that because he had little interaction with either of them,
there was insufficient evidence to support his conspiracy
conviction. He argues that the evidence was insufficient to
show that he joined the conspiracy or shared the
conspirators' goals because he sold drugs only to feed
his addiction, did not provide the type of support services
that other coconspirators did, and was indifferent to the
goals of the conspiracy and hostile to Rodrigo.
he never uses the term "variance," Ocean's
opening brief reads like a variance argument, i.e., that
Ocean's activities were not part of the broader charged
conspiracy but some other conspiracy. Ocean follows the
typical analysis for a variance claim, addressing the factors
of commonality, overlap, and interdependence. See United
States v. Ortiz-Islas, 829 F.3d 19, 24
(1st Cir. 2016) (in determining whether evidence is
sufficient to show a single conspiracy, rather than several,
courts look to "(1) the existence of a common goal, (2)
overlap among the activities' participants, and (3)
interdependence among the participants" (quoting
United States v. Paz-Alvarez, 799
F.3d 12, 30 (1st Cir. 2015))).
surprisingly, the Government responds by arguing that there
was no variance between the crime charged and the one proved
at trial. The Government points out that the Indictment did
not charge a broader "New Haven-to-Bangor"
conspiracy but merely charged a conspiracy to distribute
cocaine base in the District of Maine. Further, the
Government counters, there was no allegation that this was a
hub conspiracy centered on Mitchell and Benton, and in fact
the charged conspiracy was either a hub with Rodrigo at its
center or a chain conspiracy. Either way, the Government
claims, it introduced sufficient evidence to convict Ocean of
the charged conspiracy.
reply brief, Ocean clarifies something that he had hinted at
in his opening brief. His claim is not just that the evidence
was insufficient to establish that he participated in the
broader conspiracy involving Mitchell and sources in
Connecticut. His claim is that because he did not share the
goals of any of the conspirators, he therefore could not have
been convicted of either the broader "New
Haven-to-Bangor" conspiracy or the narrower conspiracy
agree with the Government that it was not required to prove
that Ocean was a participant in a broader conspiracy to
distribute drugs from Connecticut. That is not what the
Indictment charged. Moreover, viewing the record in the light
most favorable to the verdict, we find ample evidence that
Ocean did participate in the charged conspiracy.
prove a conspiracy, the evidence must show:
(1) the existence of a conspiracy, (2) the defendant's
knowledge of the conspiracy, and (3) the defendant's
knowing and voluntary participation in the conspiracy.
"Under the third element, the evidence must establish
that the defendant both intended to join the conspiracy ...