United States v. Hicks

United States Court of Appeals
For the First Circuit

No. 07-2037

UNITED STATES OF AMERICA,

Appellee,

v.

PAUL HICKS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Jennifer Appleyard for appellant.
Kelly Lawrence, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

August 11, 2009
 LIPEZ, Circuit Judge. After a jury trial, appellant Paul

Hicks was convicted of being a felon in possession of ammunition in

violation of 18 U.S.C. § 922(g)(1) and of possession with intent to

distribute crack and powder cocaine in violation of 21 U.S.C.

§ 841(a)(1). He now appeals his conviction and sentence, requiring

us to consider, among other things: whether a warrant for the

search of his residence was supported by probable cause, whether

the district court wrongfully denied appellant a Franks hearing to

establish the veracity of the affidavit supporting the search

warrant, and whether it was error to admit evidence of appellant's

three prior drug convictions and other bad acts. We reject

appellant's claims of error and affirm.

I.

On January 20, 2005, agents of the Massachusetts State

Police conducted a search of 15 Cabot Street in Brockton,

Massachusetts pursuant to a "no-knock" search warrant issued

earlier that day by a magistrate judge. Massachusetts State

Trooper James Long, who had been investigating appellant for weeks

prior to the search, had executed an affidavit in support of the

search warrant.

Long's affidavit stated that in December 2004, a

confidential informant (CI) told him that he or she had been

purchasing crack cocaine from a man known as "Pudgie." The CI

identified appellant as "Pudgie" in a photograph. The affidavit

-2-
stated that the CI then participated in two controlled purchases of

crack cocaine from appellant. The first transaction occurred "on

or about" January 7, 2005 and the second "on or about" January 16,

2005. The affidavit explained that Long and other officers working

the case were familiar with 15 Cabot Street from a previous

narcotics investigation that had resulted in a search of the

residence in January 2004. Officer Long averred in the affidavit

that he believed that 15 Cabot Street was a location maintained by

Hicks to prepare and distribute drugs.

The search was executed by a team of law enforcement

officers. They found appellant in a bedroom, sitting on the edge

of a bed and wearing nothing but a towel. He was the only adult in

the house. In the drawer of a night stand and within arm's reach

of where appellant had been sitting on the bed, the officers

discovered a cellular telephone, a box of ammunition, a weapon

holster, a men's watch, a key, and cash. They also found $2,090 in

cash in the pocket of a leather jacket hanging in the closet. In

the basement of the home, the officers found a digital scale,

plastic baggies, baking soda, and, inside the hollow legs of a

weight bench, 20.89 grams of crack cocaine and 125.51 grams of

powder cocaine. In the kitchen, the officers found two more

digital scales. Hicks was arrested and subsequently charged with

being a felon in possession of ammunition and possession with

intent to distribute crack and powder cocaine.

-3-
 In March 2006, appellant moved in the district court to

suppress the evidence seized during the search of 15 Cabot Street,

claiming that the search warrant had been defective. Specifically,

he argued that Trooper Long's affidavit did not establish probable

cause to believe that evidence of narcotics dealing would be found

at 15 Cabot Street. He claimed that Long's affidavit did not

connect the CI's controlled purchases to 15 Cabot Street or show

that appellant was himself connected to the residence.

The district court denied the motion to suppress, finding

that the warrant affidavit had established probable cause. The

court further found that even if there had not been probable cause

to issue the warrant, the search was justified by the rule of

United States v. Leon, 468 U.S. 897 (1984), because a reasonable

officer could have thought that the affidavit had established

probable cause.

Shortly before trial, appellant requested a hearing under

Franks v. Delaware, 438 U.S. 154 (1978), (a "Franks hearing") to

contest allegedly false statements in the search warrant affidavit.

The district court denied the motion, finding that defendant had

failed to make the preliminary showing necessary to warrant a

Franks hearing.

A jury trial commenced on October 16, 2006 and lasted

four days. The government presented the testimony of several law

enforcement agents, including that of Trooper Long and others who

-4-
had participated in the investigation and eventual search of 15

Cabot Street. The government's final witness was Massachusetts

State Police Officer Dean Levangie. Officer Levangie had

participated in well over 300 crack cocaine investigations, an

estimated seventy percent of which had occurred in Brockton, and

testified as an expert in Brockton narcotics investigations.

After the district court's rejection of appellant's

motion for judgment of acquittal pursuant to Federal Rule of

Criminal Procedure 29, appellant presented the testimony of his

mother, Rosemarie Hicks. The thrust of appellant's defense was

that he lived with his parents and was only an occasional guest at

15 Cabot Street, that the drugs and paraphernalia found at the

residence did not belong to him, and that he had no intent to

exercise control over or distribute the drugs. At the close of

evidence, he did not renew his Rule 29 motion. The jury found him

guilty of all three counts. He was subsequently sentenced to 360

months of imprisonment for each of the three counts, to be served

concurrently, followed by an eight-year term of supervised release.

Appellant filed this timely appeal.

II.

Appellant argues that the district court erroneously

denied his motion to suppress the evidence seized in the search of

15 Cabot Street because the application in support of the search

warrant failed to establish probable cause. We employ a two-tiered

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standard of review to analyze such claims. Questions of law,

including the question of whether a given set of facts gives rise

to probable cause, are reviewed de novo, United States v. Woodbury,

511 F.3d 93, 96 (1st Cir. 2007), while factual findings are

reviewed for clear error, United States v. Ribeiro, 397 F.3d 43, 48

(1st Cir. 2005). We "give significant deference to the magistrate

judge's initial evaluation," and reverse "only if we see no

'substantial basis' for concluding that probable cause existed."

Id. (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir.

1999)).

A search warrant application must demonstrate probable

cause to believe that: 1) a crime has been committed, and 2)

"enumerated evidence of the offense will be found at the place to

be searched -- the so-called 'nexus' element." Id. In considering

whether a warrant affidavit establishes probable cause, a

magistrate judge's task is "'to make a practical, common-sense

decision whether, given all the circumstances set forth in the

affidavit before him . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular

place.'" Feliz, 182 F.3d at 86 (modification in original) (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)).

Appellant argues that the warrant affidavit was faulty

because it failed to establish probable cause to believe that there

was a nexus between the controlled purchases and 15 Cabot Street,

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and that the evidence found at the home should therefore have been

suppressed. We disagree. Trooper Long's warrant affidavit supplied

a host of evidence to establish a "fair probability" that evidence

of the narcotics trade would be found at 15 Cabot Street.

According to the affidavit, the CI gave Officer Long the

crack cocaine after each controlled purchase and stated that it had

been purchased from "Pudgie." The affidavit also described reliable

information provided by the CI in earlier investigations and stated

that Long knew "Pudgie" to be the nickname of appellant, who had

several prior convictions for drug distribution offenses. The

affidavit stated that officers followed a black Mazda van directly

to 15 Cabot Street after its driver, reported by the CI to be

"Pudgie," had used the van to deliver drugs during a controlled

purchase. Officers later observed the van parked at the home during

the late evening and early morning hours. Utilities at 15 Cabot

Street were in appellant's name.

Trooper Long and other officers' knowledge and experience

with 15 Cabot Street also linked appellant to the residence. The

cell phone number dialed by the CI to reach "Pudgie" was registered

to Edward Robinson, who had previously sold crack cocaine to law

enforcement officers and had been arrested after an earlier

investigation and search of 15 Cabot Street. Robinson was connected

to appellant because during the earlier investigation he had used

a vehicle registered to appellant's father to deliver drugs.

-7-
Furthermore, 15 Cabot Street was owned by Renee Yarrell, who was

known by officers to be appellant's girlfriend and who had also sold

drugs to undercover officers during the earlier investigation of 15

Cabot Street. Finally, the search warrant affidavit detailed

Trooper Long's experience and training in narcotics investigations

and his belief that 15 Cabot Street would contain evidence of

appellant's preparation and distribution of narcotics.

In Ribeiro, 397 F.3d at 49-50, we found that the nexus

element was satisfied when police officers conducting surveillance

had seen the defendant leaving his home shortly before participating

in a controlled narcotics purchase. Analyzing whether there was

probable cause to establish the nexus requirement, we found it

"compelling" that the defendant had been able to quickly respond to

the undercover officer's requests for narcotics, which indicated

that he kept a readily accessible supply of narcotics. Id. at 50.

The nexus requirement was also supported by information obtained

through surveillance and by the affiant officer's averment that he

knew drug traffickers frequently stored drugs, cash, and other

evidence of the drug trade in their homes. Id. at 51-52.

As in Ribeiro, the circumstances set forth in the

affidavit -- which included the surveillance information,

appellant's prior convictions and his connections to known drug

dealers who operated out of 15 Cabot Street, and observations drawn

from Trooper Long's training and experience -- established a fair

-8-
probability that appellant lived at 15 Cabot Street and that

evidence of his drug dealing would be found there. Because we agree

with the magistrate judge's determination that probable cause

existed to search 15 Cabot Street, we affirm the district court's

denial of appellant's motion to suppress the fruits of the search.1

III.

Appellant argues that the district court erroneously

denied his motion for a hearing to contest the veracity of

statements made by Trooper Long in the warrant affidavit. Under

Franks, 438 U.S. at 155, a defendant may request an evidentiary

hearing to challenge the truthfulness of statements made by law

enforcement agents in a search warrant affidavit. To obtain a

Franks hearing, a defendant must make "a substantial preliminary

showing" that: 1) the warrant affidavit contains a false statement

made "knowingly and intentionally, or with reckless disregard for

the truth," id. at 155-56, and 2) that "the allegedly false

statement was necessary to the finding of probable cause." Id. at

156. We review the denial of a Franks hearing for clear error,

United States v. Materas, 483 F.3d 27, 31 (1st Cir. 2007), which

exists only when we are "'left with the definite and firm conviction

1
The government argues, alternatively, that even if there
were no probable cause for the search warrant, the evidence should
not have been suppressed because of the good-faith exception of
Leon, 468 U.S. at 913. Because we find that probable cause
existed, we need not reach that alternative argument. See Ribeiro,
397 F.3d at 52 n.7.

-9-
that a mistake has been committed.'" United States v. Castillo, 287

F.3d 21, 25 (1st Cir. 2002) (quoting Anderson v. City of Bessemer,

470 U.S. 564, 573 (1985)).

In his motion for a Franks hearing, appellant challenged

the veracity of Trooper Long's statement that the second controlled

purchase happened "on or about" January 16, 2005. The district

court denied the motion, finding that appellant had failed to make

the necessary preliminary showing that the warrant contained a false

statement made knowingly or with reckless disregard for the truth,

and that, even if the challenged statement were false, it was not

necessary to the finding of probable cause.

Appellant emphasizes on appeal, as he did in the district

court, that the warrant states that the second controlled purchase

occurred "on or about" January 16, 2005, while Trooper Long's work

records show that he did not work January 15, 16, or 17. Appellant

finds this possible discrepancy a sufficient showing that Trooper

long knowingly included a falsehood in the affidavit.

As the government points out, the use of the phrase "on

or about" when describing the time frame of a controlled drug

purchase is a common police practice, used to protect the identity

of a confidential informant. In United States v. Carty, 993 F.2d

1005, 1007 (1st Cir. 1992), we found that there was "nothing

inherently contradictory or incredible" in the affiant's assertion

that a controlled purchase had occurred "within the past few days"

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of a warrant's execution, when the purchase had actually occurred

the day of the execution. Id. at 1008. We remarked that the

description's vagueness was due to the common police practice of not

stating precisely the time of the buy in order to protect the

confidentiality of the informant. Id.; see also United States v.

Davis, 1996 WL 521202, at *6 (1st Cir. Sept. 16, 1996) ("While

further detail about the controlled buy might have been desirable,

the lack of specificity about the date of the buy or the quantity

involved is not necessarily probative of falsity. The concern for

keeping the buyer's identify confidential is a more likely

explanation for the lack of those details."). As in Carty, there

is "nothing inherently contradictory" in Trooper Long's description

of the date of the controlled purchase: the fact that the buy may

not have occurred within one day of the date referenced in Trooper

Long's affidavit simply does not mean that it did not occur "about"

that date.

Further, even if appellant could show that Trooper Long

made a knowingly false statement, he has not shown that the

challenged statement was necessary to the finding of probable cause.

"[T]o determine the sufficiency of the affidavit, excluding the

contested sentence, we look to 'whether the totality of the

circumstances stated in the affidavit demonstrates probable cause

to search either the premises or the person.'" United States v.

Barnes, 492 F.3d 33, 37 (1st Cir. 2007) (quoting United States v.

-11-
Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997)). Even if the exact

dates had not been set forth in the affidavit at all, the "totality

of the circumstances" stated in the warrant affidavit was more than

sufficient to establish probable cause to believe that evidence of

a crime would be found at 15 Cabot Street.

Accordingly, we affirm the district court's denial of

defendant's motion for a Franks hearing.

IV.

Appellant challenges the sufficiency of the evidence

supporting the jury's verdict and the district court's denial of his

Rule 29 motion for judgment of acquittal on all counts.2 We

normally review challenges to the sufficiency of the evidence and

the denial of Rule 29 motions by asking whether, taking the evidence

in the light most favorable to the jury's verdict, a rational jury

could have found the defendant guilty beyond a reasonable doubt.

United States v. Thompson, 449 F.3d 267, 275 (1st Cir. 2006);

United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998)

(challenges to the sufficiency of the evidence and Rule 29 motions

2
In parts V and VI of this opinion, we address the
admissibility of certain evidence. Often, in criminal cases
involving challenges to both the admissibility of certain evidence
and the sufficiency of the evidence to support convictions, we will
address the admissibility issues first to determine which evidence
is appropriately considered in the sufficiency of the evidence
analysis. See, e.g., United States v. Avilés-Colón, 536 F.3d 1, 13
(1st Cir. 2008). We choose a different sequence here because the
sufficiency of the evidence analysis helps to illuminate the
discussion of the admissibility issues in parts V and VI.

-12-
present a single issue for review). Because appellant failed to

renew his motion for judgment of acquittal at the close of evidence,

however, we will reverse his convictions "only if the verdict

threatens to work a clear and gross injustice." United States v.

Gobbi, 471 F.3d 302, 309 (1st Cir. 2006).

A. The Cocaine Charges

We begin with the drug charges. 21 U.S.C. § 841(a)(1)

makes it illegal to distribute or possess with intent to distribute

a controlled substance. Because appellant did not possess the

cocaine on his person at the time of the search, the government

relied on a theory of constructive possession, which "'exists when

a person knowingly has the power and intention at a given time to

exercise dominion and control over an object either directly or

through others.'" United States v. García-Carrasquillo, 483 F.3d

124, 130 (1st Cir. 2007) (quoting United States v. McClean, 409 F.3d

492, 501 (1st Cir. 2005)). Such possession "can be joint, does not

require actual ownership . . . and can be established through

circumstantial evidence, though 'mere presence or association with

another who possessed the contraband is insufficient.'" United

States v. DeCologero, 530 F.3d 36, 67 (1st Cir. 2008) (quoting

United States v. Wight, 968 F.3d 1393, 1397 (1st Cir. 1992)).

Defendant argues, in the main, that he was only at 15

Cabot Street on the day of the search because he was babysitting

Yarrell's children and that he was not involved with the narcotics

-13-
trade being run out of the home. He points out that he was not

linked to the drugs through physical possession or evidence such as

fingerprints. That is true. Nevertheless, other circumstantial

evidence permitted a reasonable jury to conclude that appellant

lived at 15 Cabot Street, knew of the drugs' existence, had the

power and intention to exercise control over them, and had the

intention to distribute them.

Cable, electricity, and telephone bills for service at 15

Cabot Street were in appellant's name. Inside the home, officers

found a personal letter addressed to appellant at 15 Cabot Street

as well as his student loan statement. Moreover, when the officers

executing the warrant entered the home, they saw appellant sitting

on the edge of the bed in the master bedroom, wrapped in a damp

towel as if he had just showered. Inside the bedroom was a

photograph of appellant and his girlfriend, Yarrell, who owned the

house. Men's clothes were on the bedroom floor and inside the

bedroom closet. In the drawer of the night stand there was a cell

phone registered to appellant, a men's watch, and cash.

Evidence of the drug trade -- such as digital scales,

plastic baggies, baking soda, and large amounts of cash -- was

scattered throughout the home. There was evidence of appellant's

prior involvement with the distribution of cocaine, indicating his

familiarity with these items. Officer Levangie testified that, in

addition to drugs themselves, plastic bags, scales, and money were

-14-
among the items he had frequently seen and seized during drug

searches in Brockton, and that he had seen baking soda used by

Brockton drug dealers as a cutting agent. The government also

introduced into evidence a recording of a collect call appellant

had made to Yarrell while he was in a Massachusetts jail

approximately one year prior to the search. On the call, appellant

told Yarrell how to package and sell cocaine at 15 Cabot Street.

This evidence directly contradicted appellant's theory that he was

an innocent bystander to the drug trade happening within Yarrell's

home.

Further, $2,090 in cash was found in the pocket of a

men's jacket inside the bedroom where appellant was sitting at the

inception of the search. Officer Levangie testified that Brockton

drug dealers tend to keep large amounts of cash on hand and readily

available; appellant was the nearest person to the cash and the

only adult in the home. Officer Levangie also testified that drug

dealers often change their telephone numbers and make frequent

phone calls. The cell phone found in the drawer was registered to

appellant, had been activated just two days before, and had already

been used to make 161 phone calls. Finally, Officer Levangie

opined that the cocaine seized from 15 Cabot Street had a street

value in excess of $12,000, a quantity consistent with narcotics

dealing rather than personal use.

-15-
 Taking this evidence in the light most favorable to the

jury's verdict, we find that a reasonable jury could convict

appellant for possession with intent to distribute cocaine.

Failing to meet our regular standard of review for Rule 29 and

evidentiary sufficiency challenges, appellant necessarily also

fails to meet the more stringent "clear and gross injustice"

standard. See Gobbi, 471 F.3d at 309.

B. The Ammunition Charge

18 U.S.C. § 922(g)(1) makes it illegal for "any person --

who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to possess in or

affecting commerce, any firearm or ammunition . . . ." Such

possession may be constructive. DeCologero, 530 F.3d at 67. The

government introduced uncontroverted evidence that the appellant is

a convicted felon and that the ammunition found in the night stand

had traveled through interstate commerce. It also introduced

evidence sufficient to establish constructive possession of the

bullets. The ammunition was located in a drawer next to

appellant's cellular telephone, a men's watch, a key, and cash, and

was within arm's reach of appellant when the officers entered the

bedroom. Furthermore, the cellular telephone lying next to the

bullets had been used to make a phone call thirty minutes before

the search. Finally, Officer Levangie testified that it was

"common practice" for Brockton drug dealers to hide weapons or pass

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them off to "co-workers," providing an explanation for why

appellant would possess ammunition although he was not found to be

in possession of a gun. A rational jury could have found that

appellant had the requisite "power and intention . . . to exercise

dominion and control" over the items in the drawer, including the

ammunition. McClean, 409 F.3d at 501.

As with the drug charges, we find no "clear and gross

injustice" in the district court's denial of appellant's Rule 29

motion on the weapons charge.

V.

Appellant objects to the admission of certain "prior act"

evidence at trial. Before trial, the government notified the court

and defense counsel that it intended to introduce evidence that the

defendant had three prior cocaine-related convictions in

Massachusetts state court: two for possession with intent to

distribute cocaine and one for distribution of cocaine. It also

sought permission to admit into evidence the recording of a

telephone call made by appellant from a Massachusetts jail

approximately one year before the incidents leading to Trooper

Long's search of 15 Cabot Street. On the collect phone call, which

appellant was warned would be recorded, appellant gave his

girlfriend, Yarrell, instructions on how to package and sell

-17-
cocaine stashed at 15 Cabot Street and inquired about the finances

of his narcotics operation.3

The government argued that the prior convictions and the

telephone call were relevant to show the defendant's knowledge of

the cocaine in the home and his intent to distribute the cocaine

and, as such, should not be excluded by Federal Rule of Evidence

404(b)'s prohibition against prior bad act evidence.4 The district

court agreed, admitting the convictions as relevant to the

defendant's knowledge and intent.5 The court reserved its ruling

on the phone call, but at trial determined that it was also

admissible. We review a district court's determination about

whether to exclude evidence under Rule 404(b) or 403 for abuse of

discretion. United States v. Tse, 375 F.3d 148, 155 (1st Cir.

2004).

3
The statements in the telephone calls were not hearsay
because they were "admission[s] by a party-opponent." Fed. R.
Evid. 801(d)(2); see id. (admissions are, inter alia, statements
offered against a party that are "the party's own statement"); 2
Kenneth S. Brown, McCormick on Evidence § 254 (6th ed. 2006)
("Admissions are simply words or actions inconsistent with the
party's position at trial, relevant to the substantive issues in
the case, and offered against the party."). Because the statements
described appellant's own prior bad acts, Rule 404(b) was
implicated and the appropriateness of admitting the testimony was
evaluated under that rule.
4
The government did not seek to admit the convictions for
the purpose of impeaching the defendant, who did not testify. See
Fed. R. Evid. 609(a).
5
The district court also noted that evidence of one prior
felony conviction was necessary to establish the felon element of
the § 922(g)(1) charge.

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 Under Federal Rule of Evidence 404(b), evidence of prior

bad acts is not admissible to show the actor's bad character or

propensity to commit crime. United States v. Arias-Montoya, 967

F.2d 708, 709 (1st Cir. 1992). "While logically relevant,

'propensity' or 'bad character' evidence is deemed to carry an

unacceptable risk that the jury will convict the defendant for

crimes other than those charged," id., or simply because "a bad

person deserves punishment," United States v. Moccia, 681 F.2d 61,

63 (1st Cir. 1982). Prior act evidence, however, is admissible for

any other relevant purpose, such as to show "motive, opportunity,

intent, preparation, [or] plan . . ." Fed. R. Evid. 404(b).

This circuit imposes a two-part test to determine whether

prior act evidence is admissible. United States v. Whitney, 524

F.3d 134, 141 (1st Cir. 2008). First, a court must ask whether the

proffered evidence has a "special" relevance, i.e., a non-

propensity relevance. Id. Next, the court must determine whether

the evidence should be excluded under Federal Rule of Evidence 403,

which allows courts to exclude relevant evidence "if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Fed. R. Evid. 403.

Here, the challenged evidence passed the first prong of

the test because of its "special" relevance to appellant's defense

-19-
that he was innocently in the home to babysit the children at the

time of the search. A person with previous convictions for

possession with intent to distribute crack and powder cocaine would

have been more likely to recognize the drug trade paraphernalia

that was scattered about the home, such as baking powder, plastic

baggies, digital scales, and cash. See Moccia, 681 F.2d at 63

(prior marijuana conviction admissible to support the government's

theory that "one who lives on a farm with marijuana in the freezer

room and under the chicken coop and has a prior possession

conviction is more likely to know about the presence of marijuana

than one who lives on such a farm and does not have a past

possession conviction."). The prior convictions were also relevant

to the issue of appellant's intent to exercise control over the

drugs in the home. The recorded phone call was similarly relevant

to appellant's knowledge of the accouterments of the drug trade in

the home and his intent to exercise control over the drugs.

Because the prior act evidence had special relevance, we

must next ask whether the evidence should have been excluded under

Rule 403 because its probative value was "substantially outweighed"

by its danger of unfair prejudice. Fed. R. Evid. 403; Whitney, 524

F.3d at 141. Even though the writer of this opinion is concerned

about the "piling on" of multiple criminal convictions when a

lesser number might suffice to establish the proposition of concern

to the government, a majority of the panel does not believe that

-20-
the district judge abused his discretion in this instance, taking

the view as well that the piling on argument was not even properly

made in the district court or advanced in this form on appeal.6

We review non-constitutional evidentiary errors for

harmlessness; an error is harmless if it is "highly probable that

the error did not influence the verdict." United States v.

Roberson, 459 F.3d 39, 49 (1st Cir. 2006) (quotation marks and

citation omitted). Even if there was an error in the admission of

the three prior felony convictions (and a majority of the panel

does not suggest that there was), that error was harmless in light

6
Unlike my colleagues, I conclude that there was an abuse of
discretion in the district court's admission of appellant's three
prior felony convictions and that the issue was properly raised
below and on appeal. Therefore, I would have preferred to address
the admissibility issue directly and thereby give some content to
our oft-stated but unhelpful caution that the government and the
district court should "be careful as to the admission of extrinsic
act evidence under Rule 404(b)." Arias-Montoya, 967 F.2d at 713
(quotations and modifications omitted); see also United States v.
Garcia-Rosa, 876 F.2d 209, 221 (1st Cir. 1989); United States v.
Flores-Pérez, 849 F.2d 1, 8 (1st Cir. 1988). Here, the admission
of the telephone recording and one of the prior convictions was
appropriate, given appellant's claim that he was innocently at 15
Cabot Street. However, the probative value of the other two
cocaine convictions was "substantially outweighed by the danger of
unfair prejudice . . . [and the] needless presentation of
cumulative evidence." Fed. R. Evid. 403. The evidence of the
phone call, which was powerfully inculpatory, and a single prior
drug conviction would have allowed the government to challenge
appellant's claim of innocence without incurring the risk at the
heart of Rule 404 -- the danger that "a jury will convict for
crimes other than those charged -- or that, uncertain of guilt, it
will convict anyway because a bad person deserves
punishment . . . ." Moccia, 681 F.2d at 63. Here the government
incurred that risk by pressing for the admission of all three
convictions. Fortunately for the government, however, the
resulting error was harmless.

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of the other overwhelming evidence against appellant, which

included the copious drug paraphernalia in the home where he

resided, the cell phone records that fit the pattern of a drug

dealer, and the ammunition and cash found in his possession. See

supra Part IV.

VI.

Appellant challenges the admission of the jail call to

Yarrell on a different ground, arguing that the admission of

Yarrell's recorded statements violated his Sixth Amendment rights

as articulated by the Supreme Court in Crawford v. Washington, 541

U.S. 36 (2004). Under Crawford, "a declarant's 'testimonial' out-

of-court statement is not admissible under the Confrontation Clause

unless (1) the declarant testifies, or (2) the defendant had a

prior opportunity for cross-examination and the declarant is

unavailable, or (3) the evidence is admitted for purposes other

than establishing the truth of the matter asserted." United States

v. Maher, 454 F.3d 13, 19-20 (1st Cir. 2006) (citations omitted).

Yarrell's statements were not admitted to prove the truth

of the matter asserted but rather to provide context for

appellants' statements, and thus did not violate the Confrontation

Clause. See United States v. Walter, 434 F.3d 30, 33-34 (1st Cir.

2006) (recorded statements of a non-testifying informant were

admissible to show context of defendant's conversation with

informant). During the phone conversation, appellant inquired

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about the status of money and drugs left with Yarrell. For

example, the following exchanges were recorded:

Hicks: I left you with three two-and-a-halfs,
I mean, two-and-a-quarter, whatever, and I
left you with three two-and-a-quarters. There
was three sets of dimes. Am I right?

Yarrell: Yup.

Hicks: That's almost $17,000 worth of shit,
$16,000 . . . Now, plus I left you with almost
seven Gs in cash, if I'm not mistaken, like
65, we'll say 65 even though it was more than
65. It was --

Yarrell: No. It was 66.

Hicks: All right, 6,600, so almost seven Gs in
cash. Now, you're telling me you got like two
Gs worth of stuff left and the other powder
stuff.
. . .
Hicks: I know for a fact I left you with
almost eight things.

Yarrell: with what?

Hicks: Well, six. Let's say six things, not
including the raw food because the raw food is
like two things alone so let's say six . . .
What . . . you been doing with my money?

The statements made by Yarrell, little more than brief responses to

Hicks's much more detailed statements, were unquestionably admitted

to provide context for the statements of appellant. Because they

were not entered for the truth of the matter asserted, they did not

implicate the Confrontation Clause.

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 VII.

Appellant argues that the trial court improperly admitted

Officer Levangie's expert testimony about the use of firearms by

Brockton drug dealers. We review this challenge to the admission

of expert testimony for abuse of discretion. United States v.

Giambro, 544 F.3d 26, 32 (1st Cir. 2008).

Characterizing Officer Levangie's testimony as

"profiling" testimony, appellant argues that it was improper expert

testimony that invaded the fact-finding function of the jury.

Specifically, he objects to Officer Levangie's testimony that

weapons are prevalent among drug dealers in Brockton and that it is

"common practice" for weapons to be hidden or passed off between

dealers and "co-workers" who sell drugs for them.

This testimony was directly relevant to appellant's

argument, suggested during cross examination and repeated in

closing argument, that he was not linked to the bullets because he

was not found in possession of a gun. Officer Levangie, who has

extensive experience investigating narcotics dealers in Brockton,

was well qualified to explain why appellant was found with

ammunition and not a firearm. That was a proper subject of expert

testimony because it "assist[ed] the trier of fact to understand

the evidence or to determine a fact in issue." Fed. R. Evid. 702.7

7
Appellant does not object to Officer Levangie's
qualification as an expert witness.

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The average juror might not understand the fluid exchange of

weapons among drug dealers in Brockton and thus might find it odd

that a drug dealer would possess ammunition but no weapon.

In United States v. Lopez-Lopez, 282 F.3d 1, 14-15 (1st

Cir. 2002), we explained that expert testimony was properly

admitted to explain how Puerto Rican drug dealers use Global

Positioning Systems to facilitate air drops and cellular telephones

to enable communication among boats -- subjects similarly

unfamiliar to the average juror. We find no abuse of discretion in

the district court's admission of Officer Levangie's testimony

about the prevalence and use of firearms among drug dealers in

Brockton.

VIII.

Finally, appellant objects to his sentence, claiming that

his Sixth Amendment right to a jury trial was violated because the

prior convictions that made him eligible to be sentenced as an

armed career criminal, 18 U.S.C. § 924, and a career offender,

U.S.S.G. § 4B1.1, were not proven to a jury beyond a reasonable

doubt. The Supreme Court has stated that the question of whether

a defendant has a predicate conviction "is exempt from the general

rule that a jury must find any fact that raises a sentence above

the statutorily-prescribed maximum." United States v. Duval, 496

F.3d 64, 80 (1st Cir. 2007) (describing Almendarez-Torres v. United

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States, 523 U.S. 224, 247 (1998)). Bound by this precedent, we

reject appellant's Sixth Amendment challenge to his sentence.

Affirmed.

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