UNITED STATES of America, Appellee, v. Jean Tony VALBRUN, Defendant, Appellant.
No. 16-1806
United States Court of Appeals, First Circuit.
December 15, 2017
877 F.3d 440
Before BARRON, SELYA and STAHL, Circuit Judges.
able to do so. West argues that, contrary to the District Court‘s ruling, each of these statements falls under the state-of-mind exception to the rule against the admission of hearsay.
But, the state-of-mind exception to the hearsay rule does not apply to “a statement of memory or belief to prove the fact remembered or believed.” Id. Indeed, the Advisory Committee Notes explain that this exception to the state-of-mind exception “is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.”
Thus, the state-of-mind exception does not encompass the statements in question. As the government rightly points out, while West contеnds that he sought to introduce each of these statements solely to show that he had an innocent state of mind at the time that he made them, the inference that West had an innocent state of mind at that time could be drawn by the jury only if the jury found that the statements were true. See United States v. Cianci, 378 F.3d 71, 106 (1st Cir. 2004) (finding that the state-of-mind exception did not apply where the evidence offered was to be usеd to prove the truth of the assertion). As one of our sister circuits explained in dealing with an analogous case,
[w]hat would be relevant is that [defendant] was in truth in the wrong place at the wrong time—not that [second defendant] thought so. Hence the statement is irrelevant unless it was true, in which case it would be hearsay, and inadmissible under any of the exceptions in
Fed. R. Evid. 803 and804 . Similarly, the declarant‘s state of mind and ‘pattern of verbal behavior’ were irrelevant to any issue in the case and cannot be invoked like a mantra to circumvent a hearsay objection.
United States v. Harwood, 998 F.2d 91, 97-98 (2d Cir. 1993).
In consequence, West fails to establish the premise on which his challenge to the District Court‘s conditional evidentiary ruling rests—namely, that the statements that West wished to introduce were thеmselves admissible. We therefore reject his contention that the District Court abused its discretion.
IV.
The judgment of the District Court is affirmed.
Leslie Feldman-Rumpler, Boston, MA, on brief for appellant.
Richard W. Murphy, Acting United States Attorney, and Renée M. Bunker, Assistant United States Attorney, Appellate Chief, on brief for appellee.
Following his conviction for a drug-trafficking offense, defendant-appellant Jean Tony Valbrun assigns error to certain of the district court‘s evidentiary rulings аnd to a jury instruction. Finding his asseverations array unpersuasive, we affirm his conviction.
I. BACKGROUND
This case is one of several arising out of the activities of a sprawling drug-distribution ring operating in Maine. As such, it implicates one of many spokes radiating from the hub of a conspiratorial wheel. We briefly rehearse the relevant facts and travel of the case, directing readers whо hunger for more exegetic details about the drug-distribution ring to consult our opinion in United States v. Gordon, 871 F.3d 35, 40-42 (1st Cir. 2017).
In 2014, Joey Brown, an agent of the Drug Enforcement Administration (DEA), led an investigation into the activities of Jacques Victor, the suspected kingpin of a drug-distribution ring. During this investigation, the DEA received judicial authorization to intercept calls and text messages to and from a number of telephones, including Victor‘s cellphone. See id. at 41-42; see also
When the plot matured, the authorities were ready: the appellant was arrested while driving a rental vehicle en route from Massachusetts to Maine. Concealed within the vehicle were 225 net grams of heroin and 106.2 net grams of cocaine base (crack cocaine).
In due course, the appellant and eleven other persons were indicted on charges associated with the activities of the drug ring. The appellant was, however, tried separately, on charges of knowingly possessing with intent to distribute heroin and crack cocaine, see
At the conclusion of the trial, the district court instructed the jury on, inter alia, the doctrine of willful blindness. The jury found the appellant guilty as charged. The court subsequently sentenced him to an
II. ANALYSIS
The appеllant assigns error in two respects. First, he contends that the district court erred in allowing parts of Victor‘s testimony about the intercepted calls. Second, he contends that the court erred in instructing the jury on willful blindness. We address these contentions sequentially.
A. The Challenged Testimony.
As an initial matter, the appellant trains his fire on the district court‘s admission of Victor‘s testimony interpreting parts of the tеlephone conversations. In support, he argues that most of the language was clear and that Victor‘s interpretive gloss was neither necessary nor helpful to an understanding of the evidence. The challenged testimony falls into two categories: in the appellant‘s words, the one category consisted of testimony comprising “repetitions or exрlanations ... juxtaposed with testimony as to ... Victor‘s own knowledge of facts“; the second category consisted of testimony that “materially changed the meaning of statements.” Although the appellant attempts to paint with a broad brush, he only articulates specific challenges to testimony regarding three calls. We limit our inquiry accordingly. See United States v. Albertelli, 687 F.3d 439, 448-49 (1st Cir. 2012).
A threshold problem loоms: the appellant‘s challenges implicate
The appellant‘s interpretive testimony is fairly characterized as lay opinion testimony. See, e.g., United States v. Dunston, 851 F.3d 91, 96 (1st Cir. 2017); United States v. Santiago, 560 F.3d 62, 66 (1st Cir. 2009).
Here, Victor‘s interpretations are rationally based on his experience and his first-hand perceptions and do not involve “scientific, technical, or other specialized knowledge.”
In this instance, though, the appellant insists that the language in most of the intercepted calls was clear and that Victor‘s testimony wаs of no help in understanding the dialogue. The district court reached a different conclusion, and our review of the record convinces us that the court‘s conclusion was well within the compass of its discretion. The calls contained a host of ambiguities, and Victor‘s testimony served not only to clarify those ambiguities but also to provide needed context to the еvents that were transpiring. For example, the participants in the calls referred to individuals involved in the drug ring‘s activities informally, and Victor was helpful to the jury in identifying the persons to whom sobriquets such as “Dude” and “Face” referred. See, e.g., United States v. Spencer, 873 F.3d 1, 14 (1st Cir. 2017).
We add, moreover, that the participants in the calls used ambiguous terms to discuss what the government argues were references to the drugs found in the car and money the appellant would receive for transporting the drugs. For example, calls between Victor and the appellant contained vague references to “putting the thing,” “my stuff,” and “hid[ing] it well.” Nor does it seem to have been mere happenstance: Victor testified that he often tried to “conceal [his] transaction[s]” by not explicitly mentiоning drugs. Seen in this light, it is nose-on-the-face plain that Victor‘s testimony was likely to assist the jury in understanding what was meant both by the statements he made and by the statements he overheard. Given Victor‘s personal knowledge of the vernacular favored by the conspirators,1 we conclude that the district court did not abuse its discretion in finding that his testimony was helpful to the jury.
The appellаnt also asserts that exclusion of portions of the challenged testimony was mandated because Victor misled the jury by materially changing the meaning of recorded statements. Properly viewed, this assertion goes to the weight of Victor‘s testimony, not to its admissibility. See Robinson v. Watts Detec. Agency, Inc., 685 F.2d 729, 739 (1st Cir. 1982) (explaining that whether an “opinion is accurate goes to the weight of the testimony, not its admissibility“); cf. United States v. Vega-Figueroa, 234 F.3d 744, 755 (1st Cir. 2000) (“[T]he modern trend fаvors the admission of opinion testimony provided it is well founded on personal knowledge and susceptible to cross-examination.“). Once the court has determined that lay opinion testimony will be helpful to the jury and satisfies the other prerequisites of
To be sure, evidence may be excluded “if its probative value is substantially out- weighed”
When
To say more about the challenged testimony would be pointless. We hold, without serious question, that the district court did not abuse its “cоnsiderable discretion,” Valdivia, 680 F.3d at 51, in allowing Victor to offer lay opinion testimony about the meaning and purport of intercepted conversations in which he had participated.
B. The Challenged Instruction.
This brings us to the appellant‘s claim that the district court‘s willful blindness instruction was unwarranted. Our case law is inconsistent concerning the standard of review that applies where, as here, a defendаnt challenges the sufficiency of the evidence undergirding a willful blindness instruction. While older cases have reviewed for abuse of discretion, see, e.g., United States v. Coviello, 225 F.3d 54, 70 (1st Cir. 2000), more recent cases have undertaken de novo review, see, e.g., United States v. Parker, 872 F.3d 1, 14 (1st Cir. 2017). In the case at hand, this issue is further complicated by the government‘s suggestion that the appellant has not preserved this claim of error. See
We need not unwind this procedural tangle. Given the impeccable provenance of the challenged instruction, we simply assume, favorably to the appellant, both that the claim of error was duly preserved and that it engenders de novo review. Even on such a generous set of assumptions, the claim is hopeless.
The doctrine of willful blindness permits the government to prove scienter when a defendant deliberately shields himself from apparent evidence of criminality. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). In effect, the law treats “persons who know enough to blind themselves to direct proof of critical facts” as having “actual knowledge of those facts.” Id.; see United States v. Singh, 222 F.3d 6, 11 (1st Cir. 2000). A willful blindness instruction is justified if “(1) a defendant claims a lack of knowledge, (2) the facts suggest a conscious course of deliberate ignorance, and (3) the instruction, taken as a whole, cannot be misunderstood as mandating an inference of knowledge.” United States v. Azubike, 564 F.3d 59, 66 (1st Cir. 2009); see Singh, 222 F.3d at 11. In mounting his claim of instructional error, the appellant dwells on the second of these elements, insisting that the evidence of purposeful avoidance was insufficient to ground the instruction. We do not agree.
To begin, thе government is not required to prove willful blindness by direct evidence. See Singh, 222 F.3d at 11. Instead, it may satisfy its burden of production by adducing evidence that red flags existed that the defendant consciously avoided investigating.2 See United States v. Ford, 821 F.3d 63, 74 (1st Cir. 2016); Singh, 222 F.3d at 11. We have held that such circumstantial evidence is “sufficient to permit a factfinder to infer conscious avoidance of guilty knowledge” and, thus, to justify a willful blindness instruction. Singh, 222 F.3d at 11.
In this case, wаrning signs abounded. For instance, the appellant was a party to a call during which (as Victor testified) Victor and Duffaud discussed the rental vehicle‘s air filter housing system as a potential place to hide drugs. During the same call, Victor told the appellant, “[s]ince you‘re a mechanic call me when dude is putting the thing,” and the appellant replied, “Aight.”3
So, too, in a subsеquent call, the appellant told Victor, “Dude is down the street, coming. Get it ... get on the highway; ... ninety five.” Victor responded: “Aight ... If you can, look for a good place in the car to hide it well for me. Look under, if you can search under ... If you can, go under physical yourself,” to which the appellant replied, “[y]eah, imma put ...” From these and other discussions explicated by Victor, the jury reasonably could have inferred that the appellant either knew of an effort to hide drugs in the rental vehicle and was cooperating in that endeavor or he purposefully avoided looking into the meaning of what the statements portended. The latter inference was sufficient to ground a willful blindness instruction. See Singh, 222 F.3d at 11; United States v. Cunan, 152 F.3d 29, 39 (1st Cir. 1998). Indeed, we previously have uphеld the use of a willful blindness instruction in a drug-distribution case where a defendant responds affirmatively to jargon on an intercepted call and makes no inquiry into its meaning. See Azubike, 564 F.3d at 68. Such a ruling does no more than reflect the reality of events: “drug organizations do not usually take unnecessary risks by trusting critical transactions to outsiders.” Id. at 65 (internal quotation marks omitted).
In an attempt to derail this reasoning, the appellant invokes our decision in United States v. Pérez-Meléndez, 599 F.3d 31 (1st Cir. 2010). There, we ruled that the evidence undergirding the jury verdict was too thin. See id. at 46-47. This ruling stemmed from our conclusion that the government had established no more than that the defendants “knew or were willfully blind to the fact that something illegal was afoot,” not that a controlled substance was involved. Id. at 45.
The case before us is readily distinguishable from Pérez-Meléndez. In that case, the record contained “no evidence” that the defеndants had “resisted” learning the true nature of the contraband that they were transporting. Id. at 46. To the contrary, they had been hired by a legitimate shipping company for an ostensibly legal purpose—the transportation of reams of paper—and the government‘s case of
By contrast, the present record contains ample evidence, including Victor‘s testimony regarding the contents of the intercepted calls, from which a jury reasonably could find—as this jury did—that the appellant knew that a drug deal was in the offing. Moreover, the jury reasonably could have found that the appellant either knowingly participated in the transportation of the drugs or deliberately closed his eyes to the obvious fact that he was transporting drugs.4
III. CONCLUSION
We need go no further. For the reasons elucidated above, the judgment is
Affirmed.
UNITED STATES of America, Appellee, v. Rafael SANTIAGO-REYES, Defendant, Appellant.
No. 16-2071
United States Court of Appeals, First Circuit.
December 15, 2017