Lead Opinion
Christopher Henry was convicted after a trial of possession of crack cocaine with intent to distribute. He claims on appeal that the district court erroneously failed to suppress text messages the police obtained from his cell phone pursuant to a search warrant. He also faults the district court for admitting evidence of his prior drug conviction, allowing a police officer to provide inadmissible expert testimony, and failing to instruct' the jury on the lesser included offense of simple possession. We affirm.
I. BACKGROUND
A. The Crimes
May 29, 2014, was the three-year anniversary of the death of a Boston-area gang member, and the police were informed that his family would be holding a memorial gathering at their home that night. Concerned that the event might spark violence, two police officers were dispatched to patrol the neighborhood in a car that was unmarked but that could be identified as a police vehicle based on its make, model, and accessories. As the officers drove toward the address where the gathering was expected, they saw two men standing on the sidewalk. When they drove past, one of the men, later identified as Henry, appeared shocked. Suspicious, the officers stopped and reversed toward the men. Upon seeing the car reverse, Henry and the other man took off running.
The officers gave chase, one by foot and one by car. Henry momentarily eluded the officer on foot by jumping over a fence and running through a schoolyard marked with “no trespassing” signs. The officer then glimpsed Henry running into the yard of a nearby home. He followed Henry into the yard and saw him facing another fence, topped with barbed wire. The officer identified himself, ordered Henry to the ground, frisked him, and arrested him for trespassing. A gun was subsequently found in the driveway of the home on the other side of the fence from where Henry was arrested.
The second man, later identified as Dwayne Leaston-Brown, ran around the side of the school building and disappeared from view. He was eventually found sitting on the steps of the same home where the gun was found. A second gun, bearing Leaston-Brown’s fingerprints, was discovered next to the school building along the path he followed as he fled from the police.
Henry was taken to the police station following his arrest where he was booked and thoroughly searched. A search of his pants produced a cell phone and $830 in cash, denominated mostly in $20 bills. Underneath his pants, Henry was wearing a pair of basketball shorts. A search of the shorts produced 21 individually packaged rocks of crack cocaine and two loose rocks, amounting to approximately three grams.
The police later applied for and received a warrant to search Henry’s cell phone. The search yielded coded text messages that appeared to reference drug sales. Henry was ultimately indicted for possession of crack cocaine with intent to distribute based on the cocaine the police found during the search at the police station, and possession of a firearm by a convicted felon based on the gun the police discovered in the driveway of the home across the fence from where he was arrested.
B. Proceedings Below
Henry moved to suppress the text messages obtained from the cell phone search on the ground that the search warrant application failed to establish probable cause. In rejecting Henry’s motion, the district court relied on the quantity and packaging of the drugs and the large
The government filed a motion in limine prior to trial asking the court to admit evidence of Henry’s 2012 state court conviction for possession of crack cocaine with intent to distribute. Henry challenged the government’s motion by arguing that evidence of his past criminal conduct was inadmissible propensity evidence that should be excluded under Rules 404(b) and 403 of the Federal Rules of Evidence. In rejecting Henry’s arguments, the district court concluded that Henry’s prior criminal conduct was admissible under Rule 404(b) to prove intent and modus operandi. The court also refused to exclude the prior conviction evidence pursuant to Rule 403 because its probative value was not substantially outweighed by the danger of unfair prejudice. When the prior conviction evidence was later admitted at trial, the court instructed the jury that it could consider the evidence to the extent that it was •relevant in proving intent or modus oper-andi, but the fact that Henry may have committed a prior crime did not prove that he committed either of the charged crimes.
The court also rejected Henry’s effort at trial to block the government from offering certain expert testimony by a police officer. The officer testified that he had experience investigating drug trafficking as a member of the Drug Control Unit of the Boston Police Department, where he had participated in over 100 drug buys, listened to wiretapped conversations, and instructed other officers on drug trade practices. During the trial, he testified that texts on Henry’s cell phone containing terminology such as “flav,” “dub,” “hard,” “plays,” “bus[t]ing a move,” and “7 to a 14 lg” referred to drug transactions. These opinions were inadmissible, Henry argued, because they were speculative or within the ken of the average juror. The officer also opined that, “looking at everything, the large amount of money, looking at the booking sheet without any employment, apparently, the large amount of drugs, the way that they’re packaged, all similar in size and packaging, ... putting it all together, in [his] opinion, these drugs were packaged for sale.” Henry claimed that this opinion should be excluded pursuant to Rule 704(b) of the Federal Rules of Evidence as an impermissible opinion on intent.
Henry’s primary theory of defense was that the officers lied in claiming that they had found drugs on him during-the search. He also sent mixed signals as to whether he planned to challenge the government’s contention that he possessed the drugs with an intent to distribute. Prior to trial, he informed the court that he would be contesting possession but not intent. He stated in his opening statement that “[i]t may very well be that the packaging and the amount of cocaine in those bags was intended for distribution, but what you’re going to learn is that Henry didn’t, possess it.” He also submitted a proposed jury instruction prior to trial, however, that asked the court to instruct the jury on the lesser included offense of simple possession.
The day before closing arguments, Henry renewed his request for a simple possession instruction. Although the judge agreed to consider the issue further, she
The jury instructions were split into two parts: the jury was given preliminary instructions, each party gave its closing argument, and then the jury was given the remaining instructions, which did not include a charge on simple possession. Following this last set of instructions, the judge met with counsel at sidebar. The government stated that it did not object to the charge, and Henry’s counsel declared that there was “[njothing from ... the defense.”
The jury convicted Henry of the drug charge, but acquitted him of the firearm charge. This appeal followed.
II. ANALYSIS
Henry challenges his conviction by claiming that (1) the warrant authorizing the search of his cell phone was not supported by probable cause; (2) the court erred in admitting evidence of his prior drug conviction; (3) a police expert was permitted to offer inadmissible opinion testimony; and (4) Henry was entitled to a jury instruction on the lesser included offense of simple possession. We address each argument in turn.
A. The Search of Henry’s Cell Phone
Henry first challenges the denial of his motion to suppress the evidence obtained from his cell phone. Athough his opening brief argues that the warrant to search his cell phone was not supported by probable cause, it inexplicably fails to address the district court’s alternative basis for denying the suppression motion: that, even if probable cause was lacking, the good-faith exception to the exclusionary rule applied. See United States v. Leon,
Henry concedes that his failure to address the good-faith exception in his opening brief waived that argument, but implores us to excuse his waiver. We decline to do so. No extraordinary circumstance explains Henry’s failure to address this issue. Instead, this is a garden-variety failure to raise an argument in an opening brief, and excusing Henry’s failure in these circumstances would turn our venerable raise-or-waive rule into a toothless tiger.
Henry’s failure to preserve for our review any challenge to the district court’s alternative' basis for denying the motion to suppress leaves us no choice but to affirm.
B. Henry’s Prior Drug Conviction
A proposal by the government to introduce evidence of a defendant’s prior criminal conduct is subject to a two-part test. See United States v. Hicks,
Henry claims that his prior drug conviction was relevant only to prove that he had a propensity to sell drugs. Thus, he argues that the evidence should have been excluded pursuant to Rule 404(b). In the alternative, he contends that the court should have excluded the evidence pursuant to Rule 403 because its prejudicial effect substantially outweighed its probative value. We find that the district court did not abuse its discretion in admitting the prior conviction.
Rule 404(b)(2) specifically permits the admission of a prior conviction to prove intent, and we have repeatedly upheld the admission of prior drug dealing by a defendant to prove a present intent to. distribute. See, e.g., United States v. Manning,
Henry attempts to distinguish these cases by noting that his theory of defense centered on possession rather than intent. A defendant’s failure to argue lack of knowledge or intent, however, does not “remove those issues from the case.” United States v. Pelletier,
We pause to note that this conclusion is compelled by the combination of our deferential standard of review and our precedent. The government appears to argue that evidence of a prior drug distribution offense is always relevant under Rule 404(b) to show knowledge and intent in a prosecution for possession of a controlled substance with intent to distribute. As the concurring opinion explains, this across-the-board position seems to overlook that, in' many cases, impermissible propensity reasoning lurks as one of the links in the logical chain of relevance. Although we discern no abuse of discretion in this case given our precedent, we encourage district court judges to carefully consider the proponent’s assertion of why a prior conviction has special relevance and examine whether, in the particular case-specific circumstances, the proponent is simply attempting to disguise propensity evidence by artificially affixing it with the label of a permitted Rule 404(b)(2) purpose.
Unlike Rule 404(b), which focuses exclusively on whether prior bad act evidence has “special relevance,” Rule 403 requires a balancing of probative value and prejudicial effect. When assessing the probative value of evidence under Rule 403, a court must consider both whether the evidence has been offered to prove an issue that is in genuine dispute, and whether the evidentiary point can be made with other evidence that does not present a risk of unfair prejudice. See United States v. Ford,
Having determined that the district court properly admitted evidence of Henry’s past criminal conduct to prove intent, we need not determine whether the same evidence could have been admitted independently to prove modus operandi. Instead, the real issue is whether the district court committed reversible error in instructing the jury that evidence that was properly admitted for one purpose could also be considered for a different, arguably inadmissible, purpose. Errors of this sort are harmless if it is “highly probable that the error did not influence the verdict.” Hicks, 575 F.3d at 143 (quoting United States v. Roberson,
Here, the record contains ample evidence to support the verdict. Moreover, as we have explained, the court permissibly admitted Henry’s prior conviction for a different purpose and instructed the jury that it could not be used to infer criminal propensity. Nothing in the facts or argument at trial pointed to a finding of modus operandi as a pathway to a guilty verdict that was not far more likely to have been provided by a finding of intent. Under these circumstances, if the court erred in instructing the jury that it could also consider Henry’s prior conviction as evidence of modus operandi, the error was harmless. Cf. United States v. Levy-Cordero,
C. Expert Witness Testimony
Henry complains that the district court improperly admitted expert testimony from a police officer. We review the court’s rulings on this issue for abuse of discretion. See United States v. Jordan,
“[W]e have long held that government witnesses with experience in drug investigations may explain the drug trade and translate coded language for juries, either through lay or, if qualified, expert testimony.” United States v. Rosado-Pérez,
Notwithstanding this formidable body of precedent, Henry presents two challenges to the police expert’s testimony. First, he argues that the court violated Rule 704(b) of the Federal Rules of Evidence by allowing the expert to express an opinion as to whether Henry possessed the drugs with an intent to distribute. Second, he argues that the court should have barred the expert from interpreting his text messages because the expert’s interpretations were either speculative or within the ken of the jury. We find no reversible error.
1. Rule 704(b) Claim
Rule 704(b) provides that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged.” Fed. R. Evid. 704(b). “Those matters are for the trier of fact alone.” Id. Here, Henry concedes that the police expert “did not explicitly state that he believed that Henry had the intent to distribute drugs.” Instead, he argues that “the import of’ the testimony was improper because it implied that Henry acted with culpable intent. Henry focuses on the following exchange during direct examination:
Q. Sir, do you have an opinion based on your training and experience considering all of the evidence in this particular case and the reports that you read and your conversations you’ve had as to whether it is consistent with the [sic] distribution or personal use?
A. Yes. It’s my opinion, looking at everything, the large amount of money, looking at the booking sheet without any employment, apparently, the large amount of drugs, the way that they’re packaged, all similar in size and packaging, also looking at — you know, putting it all. together, in my opinion, these drugs were packaged for sale.
According to Henry, the expert’s opinion that “these drugs were packaged for sale” was impermissible under Rule 704(b) because it implies an answer to a question that is reserved exclusively for the jury.
We conclude that the district court did not abuse its discretion in admitting the expert’s opinion. Rule 704(b) bars a witness from characterizing the defendant’s intent, but it “does not, however, apply to ‘predicate facts from which a jury might infer such intent.’ ” United States v. Peña-Santo,
2. Text Messages
As recounted above, our cases make it clear that a qualified expert may opine as to the meaning of criminals’ coded communications. See, e.g., Rosado-Pérez,
First, many of the text messages contain specialized language whose meaning an expert might helpfully illuminate. For example, the words “flav” and “dub” are jargon inaccessible to many jurors. See Santiago,
Second, the officer’s interpretation of other text messages that did not contain obscure jargon was nonetheless permissible because he drew upon his expertise in explaining the relevance of the communications in the drug trade. For example, he discussed an exchange in which Henry’s interlocutor indicates that Henry has several cell phones and asks to borrow one. The officer drew upon his extensive experience in explaining the significance of this exchange, by noting that dealers often use multiple phones, each for a different purpose. Such explanations are based upon his expertise and are helpful to the jury, which may be unaware of the inner workings of the drug trade.
Third, any danger posed by the testimony was substantially mitigated by cross-examination and the district court’s limiting instruction. Once an expert testifies, “[f]rom that point forward, the credibility and weight of the expert’s opinion [is] for the factfinder.” Jordan,
For these reasons, the district court did not commit reversible error in allowing the police expert to testify.
D. Lesser Included Instruction
Henry faults the district court for failing to instruct the jury on the lesser
1. Failure to Properly Object
Rule 30 of the Federal Rules of Criminal Procedure requires a party who objects to the court’s failure to give a proposed instruction to inform the court of his objection “before the jury retires to deliberate.” Fed. R. Crim. P. 30(d). The text of Rule 30(d) is silent regarding the earliest point at which a party may object so as to preserve the issue for appeal, but our decisions have ordinarily required the appellant to renew his objection after the jury has been charged when the court has given the parties that opportunity. See Gemma,
Henry attempts to avoid this precedent by invoking our decision in United States v. Kaplan,
Henry also correctly notes that there are circumstances where “a court should not require a lawyer ‘to persist stubbornly when the judge has made it perfectly clear that he does not wish to hear what the lawyer has to say.’ ” United States v. Fernández-Garay,
In the present case, the district court invited the parties to approach the bench after it completed its instructions in an obvious effort to permit the parties to register their objections to the jury charge. Henry did not present any objections in response to this invitation. Accordingly, his
2. Simple Possession Instruction
A failure by the district court to give a proposed jury instruction will qualify as plain error only if the defendant demonstrates that “(1) an error occurred; (2) which was clear or obvious; and both (3) affected [his] substantial rights; and (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Gemma,
Henry cannot satisfy the plain error test because he is unable to show that his substantial rights were affected by the court’s refusal to instruct on simple possession. To satisfy this requirement, a défendant must establish “a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” United States v. Rodríguez,
III. CONCLUSION
For the reasons stated, Christopher Henry’s conviction and sentence are affirmed.
Notes
. The district court enhanced Henry’s sentence based on a finding by a preponderance of the evidence that he possessed a gun during the commission of his drug crime. Henry complains that the enhancement violated his constitutional rights under the Fifth and Sixth Amendments because it was based on acquitted conduct. We decline to consider this argument because, as Henry acknowledges, his argument is foreclosed by Supreme Court and First Circuit case law. See United States v. Watts,
Concurrence Opinion
with whom THOMPSON, Circuit Judge, joins, concurring.
Because the court’s opinion well marshals our controlling precedent in support of its conclusions, I join in full. I write
The opinion for the court relies on our prior opinion in United States v. Manning,
This case illustrates the manner in which the relevance of a prior conviction admitted to prove “intent” under Manning may rest on little more than propensity. In its brief, the government did not articulate how Henry’s prior conviction was relevant to whether he intended to distribute the crack cocaine found in his pocket on May 29, 2014. At oral argument, the government posited that the prior conviction was relevant to Henry’s intent because the fact that Henry possessed fourteen separately packaged rocks of crack cocaine with the intent to, distribute them in March 2011 implies that he- intended to distribute the twenty-one separately packaged rocks of crack cocaine he possessed in May 2014. This reasoning is propensity-based. It requires inferring from Henry’s prior conviction that he has the following character trait: whenever he possesses separately packaged rocks of crack cocaine, he intends to distribute them. That is, his propensity is to be a seller, rather than a. buyer or user. It then requires inferring that he acted in accordance with that character trait in May 2014. The admission of Henry’s prior conviction on this line of reasoning, although allowed by Manning, appears to run afoul of Rule 404(b)(1), which bars the use of other acts evidence “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”
For the foregoing reasons, one can make a good argument for going en banc in a future case .to reconsider our Rule 404(b)(1) jurisprudence. I say “future” case because, in this particular case, any Rule 404(b) error was harmless given the overwhelming evidence of Henry’s guilt.
The main argument for not revisiting Manning at some point (assuming one thinks it may be wrong) is that it might not be worth the effort, given that in drug cases of this sort, prior convictions are often admitted for multiple reasons. For instance, in many cases, prior convictions are admitted to show both knowledge of the nature of a substance and intent to distribute. See, e.g., United States v. Doe,
Overruling Manning would nevertheless have three nontrivial effects in cases where the only inferential chains linking a prior conviction to intent to distribute include criminal propensity. First, it would mean that juries in these cases would not be instructed that they could use prior convictions to infer intent. Second, it would mean that the relevance of a prior conviction to intent to distribute would contribute not to the conviction's probative value under Rule 403, but instead to the risk of unfair prejudice. Third, it would allow defendants to keep a prior conviction out of a case without having to stipulate to intent to distribute. These effects would occur even in cases where the prior conviction might be specially relevant on one of the other grounds listed in Rule 404(b)(2).
The third of these effects can be particularly significant. Consider, for example, a case in which a prior drug sale is relevant to knowledge, which happens not to be an element that the defendant desires to challenge. In Ferrer-Cruz,
. The Supreme Court has held that a stipulation to felon status, when it is an element of a charged crime, does not eliminate the relevance of a prior conviction to that element, but merely impairs its probative value under Rule 403. See Old Chief v. United States,