United States v. Maher

United States Court of Appeals
For the First Circuit

No. 05-1598

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE MAHER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.

Chauncey B. Wood, with whom Shea, Larocque & Wood, LLP was
on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, District of Maine,
with whom Paula D. Silsby, United States Attorney, was on brief,
for appellee.

July 6, 2006

*
Of the Ninth Circuit, sitting by designation.
 LYNCH, Circuit Judge. Lawrence Maher, an erstwhile

Massachusetts drug dealer supplying cocaine to southern Maine, was

the subject of a police sting operation. While under surveillance

on July 22, 2004, Maher wandered drunkenly around a public parking

lot in Old Orchard Beach, Maine, calling out the name of a

potential drug buyer. He then got in his van, which contained

drugs, and fell asleep at the wheel with the key in the ignition

and an open beer can beside him.

The police, well aware of the opportunity created,

naturally investigated. They arrested Maher for the state crime of

operating under the influence (OUI) after Maher failed field

sobriety tests. Incident to arrest, they searched Maher's person

and van and found heroin, cocaine, and drug paraphernalia. Maher's

luck was no better at trial. He was found guilty of the federal

crime of possession of cocaine with intent to distribute. See 21

U.S.C. § 841(a)(1). On April 6, 2005, he was sentenced to 262

months in prison and six years' supervised release.

On appeal Maher makes an easily disposed-of Fourth

Amendment claim, which is significant largely because we reject his

legal argument that reasonable suspicion of drunk driving cannot

exist where the would-be operator is asleep and the vehicle is off.

Of more significance is his argument, under Crawford v. Washington,

541 U.S. 36 (2004), that the prosecution may not evade strictures

on admission of testimonial out-of-court statements by non-

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testifying declarants on the basis that the statements are offered

only for context. While concerned about the prosecution's use of

such evidence here, we find no basis to reverse the conviction.

I.

We recount the facts. As to those facts relevant to the

suppression issue, we rehearse the findings of the magistrate

judge, consistent with record support. See United States v.

Romain, 393 F.3d 63, 66 (1st Cir. 2004).

On July 20, 2004, Officer Ernest MacVane, a Windham,

Maine, police officer assigned to a task force of the United States

Drug Enforcement Administration (DEA), arrested one William Johnson

on cocaine charges. Johnson told Officer MacVane that he had

bought his cocaine from Maher, who lived in Massachusetts and was

a significant trafficker in southern Maine.

Johnson agreed to assist in a staged drug transaction

with Maher. He was told that his telephone calls with Maher would

be monitored and recorded. Johnson called Maher on July 20 and

asked if Maher was "coming down here again." Maher replied,

"tomorrow I hope, yeah." The following exchange ensued:

Maher: [D]o you got any numbers?

Johnson: What's that?

Maher: One, two, three (unintelligible).

Johnson: Four.

. . . .

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 Maher: Okay, buddy.

After some discussion of whether Johnson might come to

Massachusetts instead, Maher told Johnson, "I got you down for four

either way." He did not explicitly mention cocaine.

On the night of July 21, DEA Agent Kate Barnard called

Maher to set up a separate meeting.1 She told Maher she was "Sue,"

and said she wanted to "hook up" so that she could "get something."

Maher, apparently thinking she was an acquaintance,2 agreed to meet

her at Radley's Market in Old Orchard Beach. The next morning,

Johnson called Maher to discuss meeting. Maher told Johnson he was

waiting for a friend at a store (an apparent reference to Radley's

Market) and told Johnson to call back.

Later that morning, DEA Agent Paul Buchanan saw Maher

wandering in the parking lot adjacent to Radley's Market, stumbling

and calling the name "Sue."3 Agent Buchanan watched Maher enter

the market and emerge minutes later. Maher appeared intoxicated to

Agent Buchanan, who said he was still stumbling and disoriented.

Maher climbed into the driver's seat of a white minivan.

1
At a suppression hearing, Officer MacVane testified that
Agent Barnard did so to "try to get Mr. Maher to commit to a
location that we could locate him and find him."
2
When the agent told Maher she was "Sue," he asked her if she
was "Sue Conley." The agent replied in the affirmative. The name
Sue Conley was later found in an address book recovered from
Maher's van.
3
Agent Buchanan recognized Maher from, inter alia, a previous
booking photograph that he had been shown.

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About ten minutes later, Agent Buchanan approached the minivan and

saw Maher asleep or unconscious, slumped in the driver's seat. No

one else was in the van. The keys were in the ignition, though the

engine was not running. This information was relayed to Old

Orchard Beach Police Officer Gerald Hamilton.

Officer Hamilton drove to Radley's Market and approached

the minivan. He spoke to Maher, but Maher did not wake up, so

Officer Hamilton reached through the window and shook Maher to

rouse him. The officer asked Maher if he was okay, and Maher

replied that he was just leaving. Officer Hamilton observed that

Maher had droopy eyes and spoke in a mumble.

Officer Hamilton could see an open beer can in the

minivan's console and a six-pack on the passenger seat. He asked

Maher if he had drunk alcohol or used drugs. Maher replied that he

had had only about two ounces of beer and that he did not use

drugs. Officer Hamilton told Maher he should not have driven.

Maher replied that Officer Hamilton was right; he asked the officer

to "cut [him] a break" and said he would find his way to a friend's

house. Officer Hamilton then ordered Maher out of the van and

conducted three field sobriety tests. Maher failed all three and

was arrested on suspicion of OUI. See Me. Rev. Stat. Ann. tit. 29-

A, § 2411.

During a search incident to arrest, Officer Hamilton

found in Maher's pocket a large roll of currency, totaling $7,902,

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and a film canister containing approximately half a gram of what

was later determined to be heroin. In the van, police found a

black canvas bag which contained three sandwich bags, each of which

held a ball of white powdery material slightly smaller than a

baseball. The substance was later determined to be 163 grams of

cocaine.4 The canvas bag also held a black digital scale.

Additionally, it contained a Post-It note which listed several

names; to the right of each was a number. The first name was

Johnson's. To the right of his name was the number "4."

Prior to trial, the defense filed a motion to suppress

the evidence seized from Maher's van. The defense argued that even

assuming Maher was intoxicated, Officer Hamilton had lacked any

reason to think Maher had committed OUI.

After a suppression hearing during which Officers MacVane

and Hamilton testified, the magistrate judge recommended on October

27, 2004, that the motion to suppress be denied. The magistrate

judge noted that under Maine law, an officer may order field

sobriety tests on reasonable suspicion of OUI. He also noted that

attempted operation counts as operation under the Maine OUI

statute. See Me. Rev. Stat. Ann. tit. 29-A, § 2401(6). The

magistrate judge catalogued the evidence that Maher was intoxicated

before entering the minivan and found that when awakened, Maher

4
Officer MacVane testified, accurately, that there are
approximately 28 grams in an ounce. This means the cocaine seized
from the minivan weighed almost six ounces.

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both admitted that he had driven and said he was "just leaving."

The court concluded: "This was sufficient evidence, together with

the rational inference that the defendant had entered the vehicle

in order to drive it, to justify . . . the field sobriety tests."

The district court adopted this decision and denied the motion to

suppress.

At trial, the government never called the informant,

Johnson, as a witness. It did, however, introduce the drugs seized

from the minivan and testimony that the amount of cocaine seized

far exceeded the amount one might have for personal use. The

parties stipulated that the substance seized from the minivan was

cocaine weighing 163.7 grams.

II.

A. The Motion to Suppress

Maher first challenges the district court's denial of his

motion to suppress the evidence seized in the minivan. "Our review

of the ultimate determinations of probable cause and reasonable

suspicion on a motion to suppress is de novo." United States v.

Scott, 270 F.3d 30, 39 (1st Cir. 2001) (citing Ornelas v. United

States, 517 U.S. 690, 699 (1996)). "[S]ubsidiary factual findings

are reviewed for clear error, 'giv[ing] due weight to inferences

drawn from those facts by resident judges and local law enforcement

officers.'" United States v. Burhoe, 409 F.3d 5, 9-10 (1st Cir.

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2005) (second alteration in original) (quoting Ornelas, 517 U.S. at

699).

Maher argues that the totality of the circumstances did

not create reasonable suspicion that he had committed, or was about

to commit, the state crime of OUI. He argues that the absence of

reasonable suspicion breaks the chain of circumstance that

permitted the drug seizure: Without reasonable suspicion, Officer

Hamilton had no basis to require sobriety tests; without the tests,

Officer Hamilton had no probable cause to arrest Maher for OUI;

without the arrest, there was no reason to search the van.

We reject this argument at its starting point. Assuming

arguendo that "reasonable suspicion" is the applicable legal

standard,5 it was met on these facts.

5
Neither the Supreme Court nor this court has decided what
quantum of suspicion is required before a police officer can order
a motorist to perform field sobriety tests. The Maine courts,
however, have adopted the "reasonable suspicion" standard first
articulated in Terry v. Ohio, 392 U.S. 1 (1968). See State v.
Wood, 662 A.2d 919, 920 (Me. 1995). Other states' courts have
reached the same conclusion, see Rogala v. District of Columbia,
161 F.3d 44, 52 (D.C. Cir. 1998) (collecting cases), as has at
least one of our sister circuits, see id. ("[T]his Court is
persuaded by the reasoning of the courts in those states that have
concluded that a field sobriety test is such a minimal intrusion on
the driver of the car that only reasonable suspicion is required to
conduct such a test."). The parties to this appeal agree that
reasonable suspicion is the applicable standard, and so we proceed
on that basis for present purposes. See Adorno v. Crowley Towing
& Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006) (accepting
arguendo a legal proposition agreed to by the parties).

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 Reasonable suspicion, a less demanding standard than

probable cause, denotes at least a minimal level of objective

justification for a stop. United States v. Sokolow, 490 U.S. 1, 7

(1989). In evaluating whether reasonable suspicion is present, we

"look at the totality of the circumstances . . . to see whether the

detaining officer ha[d] a particularized and objective basis for

suspecting legal wrongdoing." United States v. Arvizu, 534 U.S.

266, 273 (2002) (internal quotation marks omitted) (quoting United

States v. Cortez, 449 U.S. 411, 417-18 (1981)).

In this case, Officer Hamilton knew (because he had been

told by other officers) that Maher had just been stumbling

disorientedly, a common characteristic of intoxication, around the

parking lot of Radley's Market. See United States v. Meade, 110

F.3d 190, 193 (1st Cir. 1997) (police may "rely upon each other's

knowledge of facts" when forming suspicions of wrongdoing).

Officer Hamilton saw Maher slumped over the wheel of his van in a

public lot, apparently not conscious, in the middle of the day.

The officer saw an open can of beer next to Maher; Maher did not

respond to verbal attempts to wake him up. And when Maher did wake

up, he had droopy eyes and mumbled his words. Officer Hamilton had

a reasonable basis to think Maher was intoxicated.

But Maher's mere intoxication is not what led to the

search of the car. The search was justified on the basis of

reasonable suspicion that the crime of OUI had been committed,

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which led to the sobriety tests, which led to the arrest. Officer

Hamilton knew Maher was the only occupant of the minivan, that he

was in the driver's seat, and that the key was in the ignition. He

knew Maher's vehicle was parked in a state other than his home

state. The inference was entirely rational that Maher had driven

while intoxicated and that he would drive again. See United States

v. Escobar-de Jesus, 187 F.3d 148, 175-76 (1st Cir. 1999) (a

factfinder may make inferences in light of "human experience"); see

also United States v. McFarland, 445 F.3d 29, 32 (1st Cir. 2006).

Furthermore, Maher told Officer Hamilton he was "just leaving" and

asked the officer to cut him a break (suggesting he knew he had

broken the law). Maher also tacitly admitted, by agreeing with

Officer Hamilton's statement that he should not have driven, not

only that he had driven recently but that he had driven drunk.6

Maher's key legal argument is that "courts seem to

require that a sleeping defendant be found behind the wheel . . .

6
Maher argues that Officer Hamilton had no reason to believe
he had consumed alcohol before driving to the parking lot, and that
the presence of the six-pack in fact raises the inference that he
had not. Maher also relies on the fact that no officer saw him
driving the van. These arguments do not alter our conclusion that
the other evidence amply supported the police action. See State v.
Merrill, 552 A.2d 551 (Me. 1989) (mem.) (upholding defendant's OUI
conviction on circumstantial evidence because such evidence "is no
less conclusive than direct evidence in supporting a conviction").
Officer Hamilton had ample reason to believe, especially given
Maher's statements upon awakening, that Maher had driven while
drunk or was planning to drive away while drunk. See Me. Rev.
Stat. Ann. tit. 29-A, § 2401(6) (defining "operating" as "operating
or attempting to operate a motor vehicle" (emphasis added)).

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with a running engine before they will find reasonable suspicion of

OUI." We reject any argument that reasonable suspicion of OUI

cannot exist when an apparently intoxicated person is found asleep

behind the wheel unless the engine is running. Fourth Amendment

analysis is always context-specific and rarely employs litmus

tests.7 See Brigham City v. Stuart, No. 05-502, 2006 WL 1374566,

at *4, *5 (U.S. May 22, 2006) (noting that "the ultimate touchstone

of the Fourth Amendment is 'reasonableness'" and concluding a

warrantless entry was "plainly reasonable under the

circumstances").

B. The Confrontation Clause Challenge

Maher argues there were twelve instances at his trial in

which hearsay was erroneously admitted, and that consequently he is

entitled to a new trial. He lumps them together and argues that

the admission of the testimony violated his constitutional rights

7
Maher makes an additional argument in his reply brief that
his incriminating statements cannot be used in the reasonable
suspicion calculus because, at the moment Officer Hamilton shook
him awake, he was "seized." This argument, not raised before the
reply brief, is forfeited. See United States v. Isler, 429 F.3d
19, 30 n.12 (1st Cir. 2005). Even if not forfeited, it would fail.
Just because Maher was so soundly asleep (or unconscious) that
Officer Hamilton had to shake his arm to wake him up does not mean
he was "seized" within the meaning of the Fourth Amendment. While
physical touching "might indicate a seizure," United States v.
Mendenhall, 446 U.S. 544, 554 (1980), it is only one of many
possible factors, none dispositive, United States v. Smith, 423
F.3d 25, 30 (1st Cir. 2005). Here, there is no indication that
Officer Hamilton's physical contact with Maher lasted longer than
was necessary to awaken him. Furthermore, none of the other
exemplary circumstances listed by the Mendenhall court that might
suggest seizure were present. See 446 U.S. at 554.

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under the Confrontation Clause of the Sixth Amendment, as defined

in Crawford v. Washington, 541 U.S. 36 (2004). He did not object

to the majority of this testimony, and he cannot show plain error.

Where he did object, no Confrontation Clause issue is presented.

Post-Crawford, the admission of non-testifying

informants' out-of-court testimonial statements, through the

testimony of police officers, is a recurring issue in the courts of

appeals. Crawford holds that a declarant's "testimonial" out-of-

court statement is not admissible under the Confrontation Clause

unless (1) the declarant testifies, id. at 53-54, or (2) the

defendant had a prior opportunity for cross-examination and the

declarant is unavailable, id. at 54, or (3) the evidence is

admitted for purposes other than establishing the truth of the

matter asserted, id. at 59 n.9. Each of these tests has its own

subtleties.

Assuming the declarant does not testify and is in fact

available, and/or there was no prior opportunity for cross-

examination of the declarant, Crawford claims will usually turn on

one of two issues. First, was the out-of-court statement

testimonial? Second, if so, is it admissible for reasons other

than the truth of the matter asserted?

There has been a great deal of attention to the first

issue, which this court discussed in United States v. Brito, 427

F.3d 53 (1st Cir. 2005). In Crawford, the Supreme Court did not

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precisely define what it meant by "testimonial." It instead

listed, for illustrative purposes, three formulations that came

within the "core class" of testimonial statements. 541 U.S. at

51-52. The first includes "ex parte in-court testimony or its

functional equivalent -- that is, material such as affidavits,

custodial examinations, prior testimony that the defendant was

unable to cross-examine, or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially."

Id. at 52 (emphasis added). The second includes "extrajudicial

statements . . . contained in formalized testimonial materials,

such as affidavits, depositions, prior testimony, or confessions."

Id. at 51-52 (internal quotation marks omitted) (omission in

original) (citing White v. Illinois, 502 U.S. 346, 365 (1992)).

The third encompasses "statements that were made under

circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later

trial." Id. at 52 (internal quotation marks omitted). This court,

applying Crawford, has said a statement is testimonial if a

reasonable declarant, similarly situated, would have the capacity

to appreciate that the statement is of a sort typically

"preserve[d] . . . for . . . potential prosecutorial use." Brito,

427 F.3d at 60-61 (holding that 911 calls may be testimonial in

certain circumstances).

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 There has been somewhat less development, post-Crawford,

of the second issue, perhaps because this Crawford exception

appears simply to rest upon a long-established exception to the

hearsay rule for statements not offered for the truth of the

matter. Even before Crawford, however, it was recognized in the

standard treatises' discussions of the hearsay rule that:

One area where abuse may be a particular
problem involves statements by arresting or
investigating officers regarding the reason
for their presence at the scene of a crime.
The officers should not be put in the
misleading position of appearing to have
happened upon the scene and therefore should
be entitled to provide some explanation for
their presence and conduct. They should not,
however, be allowed to relate historical
aspects of the case, such as complaints and
reports of others containing inadmissible
hearsay. Such statements are sometimes
erroneously admitted under the argument that
the officers are entitled to give the
information upon which they acted. The need
for this evidence is slight, and the
likelihood of misuse great. Instead, a
statement that an officer acted "upon
information received," or words to that
effect, should be sufficient.

2 Broun, et al., McCormick on Evidence § 249, at 103 (5th ed. 1999)

(emphasis added).

Maher's Crawford arguments appear to cover two different

types of testimony by officers concerning statements by the non-

testifying informant-declarant: (1) testimony that the informant

said X to the officer, and (2) testimony from which (Maher argues)

the jury would necessarily infer that the declarant had said X, but

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which did not itself quote or paraphrase the declarant's

statements. Crawford covers the first category -- the admission of

out-of-court statements by non-testifying and un-cross-examined

declarants through testimony of others. Maher makes no effort to

explain why Crawford should be read to extend to the second

category, and so we disregard the statements which fall in that

category.

We address Maher's strongest argument that the testimony

violated Crawford. Early in the government's case, the prosecutor

asked Officer MacVane how he found out that Maher "may be involved

in illegal activity." There was no objection. Officer MacVane

replied: "William Johnson." Moments later, the prosecutor and

Officer MacVane engaged in the following colloquy:

Q: [B]ased on Bill Johnson's response to
your questions about who gave him the
cocaine, did you do follow-up inquiries
regarding whether such a person existed?

A: Yes I did.

Q: What did you do on those lines?

A: I checked the name Lawrence Maher in the
State of Maine Department of Motor
Vehicle database and also the
Massachusetts database and found that
he existed in both of them.

Again, there was no objection.

Obviously concerned about the use the jury might make of

this testimony, the trial court admirably and sua sponte

instructed: "The statements made by Mr. Johnson, whatever they

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are, that is for you to decide, are not to be used by you as to the

truth of those statements. They are merely to be used as something

that he responded to by doing something else." The court then gave

the jurors an example of the difference between hearsay and non-

hearsay use of a statement.

The first Crawford issue to be addressed is whether the

informant's statement that Maher was involved in illegal drug

dealing activity was testimonial. As best we can tell from the

record, it was testimonial. The Supreme Court's first formulation

of "testimonial" included custodial examinations. Crawford, 541

U.S. at 52. The Court said "[s]tatements taken by police officers

in the course of interrogations are . . . testimonial under even a

narrow standard." Id. The statement at issue here was made while

the police were interrogating Johnson after Johnson's arrest for

drugs; Johnson agreed to cooperate and he then identified Maher as

the source of the drugs. Johnson's statement is also testimonial

under Crawford's third example of the "core class" of testimonial

statements. The cooperation agreement, indeed, made it more likely

the statement would be used prosecutorially.8 In this context, it

8
In United States v. Cromer, 389 F.3d 662 (6th Cir. 2004),
the Sixth Circuit noted with approval one commentator's suggestion
that "'[a] statement made knowingly to the authorities that
describes criminal activity is almost always testimonial.'" Id. at
675 (quoting Friedman, Confrontation: The Search for Basic
Principles, 86 Geo. L.J. 1011, 1042 (1998)). We would not go so
far. Our decision in Brito, 427 F.3d 53, implicitly rejected this
view in holding that 911 calls are not testimonial merely because
the caller knowingly contacts police to provide information about

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is clear that an objectively reasonable person in Johnson's shoes

would understand that the statement would be used in prosecuting

Maher at trial. This is sufficient to render the statement

testimonial under the test in Crawford and our test in Brito. See,

e.g., Crawford, 541 U.S. at 52 (including among its "testimonial"

formulations "statements that were made under circumstances which

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial"); Brito, 427

F.3d at 60 (stating that a statement qualifies as testimonial if

the declarant would reasonably understand that it will be

"preserve[d]" for "potential prosecutorial use"); see also Horton

v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding a declarant's

statements non-testimonial where they "were not made as part of a

confession resulting from custodial examination" but instead as

part of a private conversation with a non-police officer); United

States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004) (noting that the

"core" examples of testimonial statements in Crawford "all involve

a declarant's knowing responses to structured questioning in an

investigative environment or a courtroom setting where the

declarant would reasonably expect that his or her responses might

be used in future judicial proceedings").

a crime. Where the caller is "under the stress of a startling
event" such that she cannot "comprehend the larger [prosecutorial]
significance of her words," the call may not be testimonial at all.
Id. at 61, 62.

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 The next question is whether Officer MacVane's testimony

about Johnson's testimonial statement was admissible under Crawford

for reasons other than the truth of Johnson's assertion that Maher

sold him illegal drugs. The government says it was admissible for

reasons other than the truth of the matter because it set the

context for what the police officers did next. Sometimes the

rationale that an out-of-court statement provides context for other

admissible evidence will be valid. In United States v. Walter, 434

F.3d 30 (1st Cir. 2006), this court held that Crawford was not

offended by use of an informant's statements to set context. But

the precise nature of that context is important. In Walter, the

evidence in question was tape-recordings made during a sting

operation during which the informant bought weapons from the

defendant. Certain portions of the tapes, with statements by a

non-testifying informant, were admitted because the informant's

words provided context for admissions made by the defendant, which

also were captured on tape. Id. at 33-34.

This situation is very different and more directly raises

the risks which concerned the Crawford court. The government's

articulated justification -- that any statement by an informant to

police which sets context for the police investigation is not

offered for the truth of the statement and thus not within Crawford

-- is impossibly overbroad. It is overbroad even in classic

hearsay terms, as stated in the McCormick treatise. What gives

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this situation added bite is that the "context" rationale may be

used by the prosecution not just to get around hearsay law, but to

circumvent Crawford's constitutional rule. As the Seventh Circuit

has warned, citing Crawford:

Under the prosecution's theory, every time a
person says to the police "X committed the
crime," the statement (including all
corroborating details) would be admissible to
show why the police investigated X. That
would eviscerate the constitutional right to
confront and cross-examine one's accusers.

United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004); see

also Cromer, 389 F.3d at 674. In Silva, a DEA agent testified that

he listened to conversations between a non-testifying confidential

DEA informant and a purported drug supplier, and that he heard the

informant speak of "this individual named Juan [who] indicated that

he was going to be making the delivery." 380 F.3d at 1019

(alteration in original). The defendant's name was Juan. The

government argued that this and similar testimony was admissible to

show "the actions taken by each witness." Id. at 1020. But as the

Silva court wrote, "[a]llowing agents to narrate the course of

their investigations, and thus spread before juries damning

information that is not subject to cross-examination, would go far

toward abrogating the defendant's rights under the sixth amendment

and the hearsay rule." Id. This sort of testimony also raises

risks similar to those raised by use of law enforcement officers to

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give preliminary overview testimony, a practice we disapproved in

United States v. Casas, 356 F.3d 104, 119-20 (1st Cir. 2004).

Here, Officer MacVane testified that the confidential

informant had said Maher was a drug dealer, even though the

prosecution easily could have structured its narrative to avoid

such testimony. The information was surely relevant, but that is

not our question. As McCormick points out, the officer, for

example, could merely have said he "acted upon information

received, or words to that effect." 2 Broun, supra, § 249, at 103

(internal quotation marks omitted). It appears the testimony was

primarily given exactly for the truth of the assertion that Maher

was a drug dealer and should not have been admitted given the

adequate alternative approach.

But Maher did not object to this portion of Officer

MacVane's testimony, and he certainly cannot meet the plain error

test. The testimony was immediately followed by a sua sponte

instruction to the effect that any statements of the confidential

informant should not be taken as standing for the truth of the

matter asserted (i.e., that Maher was a dealer who supplied Johnson

with drugs). Cf. United States v. Jadusingh, 12 F.3d 1162, 1167-68

(1st Cir. 1994) (finding no plain error in a prosecutor's

purportedly improper reference to inaudible portions of an audio

tape in part because "[t]he trial court provided the jury with a

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limiting instruction directing them to disregard inaudible portions

of the tape").

The government needed to prove only that Maher possessed,

with the intent to distribute, cocaine. See 21 U.S.C. § 841(a).

This was proven by what was in his van: cocaine in amounts too

large to be explained by personal use; a digital scale; multiple

baggies of drugs (a fact consistent with distribution); a slip of

paper with the name of the informant who arranged the buy.9

Further, the police saw Maher walking around the assigned meeting

place for a second potential drug sale, calling out the name he had

been given.

The dividing line often will not be clear between what is

true background to explain police conduct (and thus an exception to

the hearsay rule and thus an exception to Crawford) and what is an

attempt to evade Crawford and the normal restrictions on hearsay.

But we are on firm ground in warning prosecutors of the risks they

face in backdoor attempts to get statements by non-testifying

confidential informants before a jury.

9
Officer MacVane offered uncontroverted testimony that a
personal use quantity of cocaine is typically a half-gram to a
gram, see United States v. Morales, 834 F.2d 35, 36-37 (2d Cir.
1987) (recounting expert testimony that 21 grams of cocaine "was
inconsistent with personal use"), and that drug dealers use scales
to measure their drugs before sale.

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C. Challenges to Officer MacVane's Post-It Note Testimony

Finally, Maher raises several unpreserved challenges to

the admissibility of one subsection of Officer MacVane's testimony;

we review for plain error.

The challenged colloquy occurred while the prosecutor was

questioning Officer MacVane about the Post-It note found in Maher's

minivan, and specifically about the significance of the number "4"

scrawled next to Johnson's name:

Q: Based on your participation in numerous
narcotics cases that you said you had
participated in, what significance did this
piece of paper have in general with regard to
drug trafficking?

A: Based on my training and experience it
was significant because I recognize it as drug
notes. Drug distributors' way of being
organized. In this particular case what it
appears to me is a customer list with their
orders on it.

Q: Based on your training and experience and
knowledge in this case what did the "four"
pertain to?

A: Four ounces of cocaine.

Maher's argument repeats the familiar debate about

whether police officers, in giving certain descriptions about how

drug deals work, are testifying on the basis of particularized

knowledge under Fed. R. Evid. 701, or as expert witnesses under

Fed. R. Evid. 702.10 See, e.g., United States v. Ayala-Pizarro, 407

10
Maher also argues that this exchange constituted a
Confrontation Clause violation because Officer MacVane's opinion

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F.3d 25, 27-29 (1st Cir. 2005). If the testimony is properly Rule

702 material, there are two advantages to the defendant. First,

the government must disclose Rule 702 testimony to the defense

before trial. See Fed. R. Crim. P. 16(a)(1)(G). Second, the

defense may be able to convince the judge that the testimony does

not meet the heightened reliability criteria under Rule 702 and

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

But there is also a possible disadvantage to the defendant, in that

jurors may be told that the officer's testimony has been deemed

expert.

Rule 701, on the other hand, is meant to admit testimony

based on the lay expertise a witness personally acquires through

experience, often on the job. We discussed at greater length the

difference under the two rules, as applied to police officer

testimony, in Ayala-Pizarro. See 407 F.3d at 27-29. We noted in

that case that it may be that part of an officer's testimony will

be lay opinion and part will be expert opinion. Id. at 28.

Here Officer MacVane's testimony, that based on his

experience the Post-It notes were likely notes of drug orders and

the number "4" referred to a quantity of the drug found in the van,

"did not cross the line to become expert testimony." Id.; see also

was based not on his expertise, but on Johnson's testimonial
statements. For additional reasons to those already stated, we
reject this argument. Officer's MacVane's experience provided an
independent basis for the evidence, as we explain below.

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id. at 29 (holding that an officer's testimony that heroin seized

at drug points was typically packed in aluminum decks and that the

heroin seized in the case was packaged in such decks was Rule 701

testimony). There was no error, much less plain error.

III.

The other arguments presented by Maher have been

considered and are without merit.

The conviction is affirmed.

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