United States v. Rose

United States Court of Appeals
For the First Circuit

Nos. 13-1525
13-1683
13-2420
13-2460
UNITED STATES OF AMERICA,

Appellee,

v.

RUSSELL C. ROSE;
KELVIN FRYE,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Rosemary Curran Scapicchio for appellant Kelvin Frye.
Jamesa J. Drake and Drake Law, LLC, for appellant Russell C.
Rose
Kirby A. Heller, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Carmen M. Ortiz,
United States Attorney, James E. Arnold and David J. D'Addio,
Assistant United States Attorneys, District of Massachusetts,
Leslie R. Caldwell, Assistant Attorney General, and David A.
O'Neil, Acting Deputy Assistant Attorney General, Criminal
Division, were on brief, for appellee.

September 18, 2015
 HOWARD, Chief Judge. Russell Rose and Kelvin Frye appeal

convictions stemming from their respective roles in a Cape Cod

based drug-distribution conspiracy. Their claims challenge

several aspects of the proceedings below. Finding no reversible

error, we affirm.

I.

We begin with a brief overview of the case, saving a

detailed recitation of the facts for the applicable analytical

section below. We present the facts in an objective manner. See

United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015).

The government charged Rose, Frye, and fourteen others

with conspiring to distribute, and to possess with intent to

distribute, cocaine and heroin. See 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(B). The conspiracy was alleged to have lasted from

approximately March 2008 until November 2010, and Rose and Frye

were purportedly leaders in it.

The government's investigation into Rose and Frye picked

up steam in mid-2010, and the two were ultimately arrested,

indicted, and tried. At trial, the government relied on the

testimony of the case agent (Agent Timothy Quinn), recordings of

wiretapped phone calls between the co-conspirators, and testimony

from co-conspirators Delrico Graham and Stefan Pina. The

prosecution also introduced physical evidence, including

contraband discovered at Rose's residence.

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 A jury ultimately convicted both Rose and Frye on the

drug-conspiracy charge, and the judge sentenced each of them to

twenty-five years in prison. This timely appeal followed.

II.

After carefully considering each of the defendants'

contentions and extensively reviewing the record, we find four

arguments to be worthy of discussion; the remainder lack arguable

merit. We therefore limit our focus to: (1) the defendants'

complaints respecting the government's wiretapping of their

phones; (2) Rose and Frye's arguments concerning Agent Quinn's

testimony; (3) Rose's challenge to the search of his home; and (4)

both defendants' sentencing challenges grounded on Alleyne v.

United States, 133 S. Ct. 2151 (2013).

A. Wiretaps

At trial, the government relied heavily on the tapes of

intercepted phone calls between the co-conspirators. Both

defendants argue that the phone wiretaps that produced the tapes

were unnecessary and were therefore improperly authorized.

1. Background

Nearly two years into the government's investigation,

agents requested permission to intercept calls to or from the

telephones of Frye and Michael Andrews (another co-conspirator).

To support that request, Agent Quinn submitted an 89-page affidavit

that detailed the alleged criminal activities of Frye and Andrews,

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the sources of information that led to that background knowledge,

and details of the investigation itself. The affidavit

specifically enumerated the prior, unsuccessful use of various

other investigative methods, including: physical surveillance;

review of prison tapes; use of confidential informants; use of pen

registers, trap and trace devices, and toll records; execution of

search warrants; use of grand jury subpoenas; interviews;

intelligence from undercover agents; and examinations of discarded

trash. Agent Quinn also explained why the government believed

that there was probable cause for intercepting the calls.

Agent Quinn eventually filed six additional, analogous

requests targeting phones belonging to Frye, Graham, and Rose.

Although each affidavit was extensive in its own right, each also

incorporated the facts from the previously submitted requests. As

in the initial application, Agent Quinn meticulously described the

prior investigative techniques and then explained why the phone

intercepts were necessary. Based on these descriptions, the

warrant judge (Saris, C.J., D. Mass.), authorized each wiretap.

Prior to trial, the defendants moved to suppress the

wiretaps, see 18 U.S.C. § 2518(1)(c), and the court denied the

motion. At trial, recordings of several of the calls were played,

with a significant number capturing these defendants (along with

other co-conspirators) discussing, albeit in code, their plans to

purchase or sell drugs.

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 2. Discussion

Our inquiry is guided by Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, which

governs the rules for federal telephone wiretaps. The law requires

an officer to obtain judicial preclearance before instituting a

wiretap by filing "a full and complete statement as to whether or

not other investigative procedures have been tried and failed or

why they reasonably appear to be unlikely to succeed if tried or

to be too dangerous." Id. at § 2518(1)(c). This aptly-named

"necessity" prong requires the government to have "made a

reasonable, good faith effort to run the gamut of normal

investigative procedures before resorting to means so intrusive as

electronic interception of telephone calls." United States v.

Cartagena, 593 F.3d 104, 109 (1st Cir. 2010) (internal quotation

marks and citation omitted).

When a defendant challenges on appeal a court's

"necessity" determination, we ask whether "the facts set forth in

the application were minimally adequate to support the

determination that was made." United States v. Yeje-Cabrera, 430

F.3d 1, 7 (1st Cir. 2005) (internal quotation marks and citation

omitted). Likewise, when a defendant asserts that the requesting

officer omitted critical information from the affidavit that would

have otherwise altered the court's necessity analysis, we only

consider "whether, had the omitted information been included,

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there would still have been a 'minimally adequate' basis for

determining that the wiretap was necessary." Burgos-Montes, 786

F.3d at 103.

Rose and Frye begin with a broad attack on Agent Quinn's

affidavit. They argue that Quinn withheld critical information

from the judge when applying for the wiretaps, namely, that the

government had placed a GPS tracking device on Frye's car.

Although Agent Quinn theorized about the possible,

future use of a GPS-tracking device, he was far from Goldfinch-

ian in the level of detail he provided about his actual, past

reliance on it. Nonetheless, he did adequately explain why the

telephone intercepts would have still been necessary even if the

officers were to utilize a tracker in the future. That explanation

clarified why a GPS-tracking device was inferior to a telephone

intercept and why the GPS-device was insufficient for this

investigation. For instance, Quinn wrote that "there is a

significant risk that any GPS device[] would be discovered," and

that such devices "provide no information about who (if anyone)

[an individual] is meeting with, why he [or she] traveled to a

particular location, and what happened once he [or she] was there."

More specifically, Agent Quinn, aware from a wiretapped call that

an individual had previously informed Frye to check his car for a

"tracker," noted that "Frye (or at least one of his associates) is

well aware of this law enforcement technique."

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 Agent Quinn's reasoning equally explains why the

wiretaps were necessary, even given the government's actual use of

the GPS device. Indeed, if Agent Quinn had written his statements

in the past tense, rather than as a hypothetical, the judge's

necessity inquiry would have remained exactly the same. If

anything, the failure to put more information about the GPS tracker

actually undersold the probable cause that existed to support the

application. We ultimately "find no reason to conclude that the

inclusion of [more information respecting past use of the GPS

tracker] would have prevented the judge from deciding that a

wiretap should [have been] issued." Cartagena, 593 F.3d at 111.

After that broad pitch, Rose specifically narrows in on

wiretap applications #4 (Graham's phone) and #7 (Rose's phone).

He notes that Agent Quinn's proffered justification for tapping

phone #4 was to discover the "source of supply" of the drug

conspiracy. Tapping phone #7, meanwhile, was allegedly necessary

in order to learn more information about another co-conspirator,

"Papa Doc." But, Rose says, these justifications were overly

broad, and the applications sought information that the government

already possessed.

The central flaw in Rose's argument is that he

incorrectly assumes that any "partial success of the

investigation" eliminates the need for further evidence. United

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States v. Cao, 471 F.3d 1, 3 (1st Cir. 2006).1 As Agent Quinn

persuasively demonstrated, however -- and in sufficient detail,

despite Rose's protestations otherwise -- the government was still

seeking a wealth of information at the time that it submitted the

wiretap applications. Further, Agent Quinn adequately described

why any other investigative technique would not yield the evidence

obtainable by a wiretap.

For example, Quinn noted that "although agents have

observed Graham in the presence of Rose and Frye on multiple

occasions, I know very little about the nature of his relationship

with them." As for "Papa Doc," Agent Quinn wrote that "my

information about Papa Doc is quite limited, as I do not know his

true identity," and that he was unaware of the amount of product

that came from "Papa Doc." He also indicated that the wiretaps

could provide information as to how the conspirators obtained the

drugs, the role that each individual played in the conspiracy, and

the "means, and methods of the operation of the conspiracy." As

Agent Quinn wrote,

I believe that Graham, who has served as
Rose's narcotics courier and has been
intercepted discussing distribution
quantities of cocaine with Frye . . . [will
assist] investigators [to] obtain a more

1 Indeed, such a rule would make little sense. An affiant
seeking a wiretap is required to establish probable cause. In
order to do so, one would expect for other investigative techniques
to have been somewhat successful at the time of the wiretap
application.

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 detailed understanding of Graham's role [and]
to identify more fully the members of the
conspiracy, its methods and manners of
operations, sources of supply, associates,
customers, and illicit profits.

These detailed representations to the court were minimally

adequate to support the warrant-judge's decision.2

Ultimately, given Agent Quinn's extensive declarations,

combined with the deferential standard of review applicable to

this wiretap challenge, we are satisfied that no error occurred.

B. Overview Testimony

Frye and Rose next contend that the government

improperly utilized Agent Quinn as an "overview witness," that is,

he allegedly provided a broad summary of the government's entire

case and discussed evidence not then in the record.

Frye advances two other arguments that fall within the
2

penumbra of this challenge. First, he challenges the use of the
GPS tracking device itself under the Supreme Court's decision in
United States v. Jones, 132 S. Ct. 945, 949 (2012) (finding that
such an investigative technique constitutes a search for Fourth
Amendment purposes). As in United States v. Sparks, however, the
good-faith exception to the exclusionary rule would apply to this
pre-Jones use of a GPS tracker. 711 F.3d 58, 62 (1st Cir. 2013)
(concluding that before Jones, it was reasonable for an officer to
believe that the Fourth Amendment did not apply to investigations
of vehicles on public ways). Second, Frye asserts that a Franks
hearing was required to investigate Agent Quinn's decision to omit
information about the past use of the GPS tracker in his wiretap
application. Given the dearth of evidence reflecting an
intentional or reckless omission, no clear error existed in the
denial of that request. See United States v. Hicks, 575 F.3d 130,
138 (1st Cir. 2009).

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 1. Background

The government's central witness was Agent Quinn. The

government called him on the third day of trial, and his testimony

described activities covering the entire length of the conspiracy.

Most notably, he spent a significant period of time testifying

about the taped phone calls between the co-conspirators.

To lay a proper foundation, Agent Quinn first explained

how the phone wiretaps operated logistically. He then clarified

the role that he played in reviewing the calls and testified that

he heard nearly 90% of the calls in real time. From this

experience, Agent Quinn said that he became familiar with the

voices of the key players in the conspiracy, along with the terms

that they used. He also noted that he was conversant in the drug-

distribution "lingo" from prior investigations.

His testimony developed a consistent rhythm. After the

prosecutor played a tape recording of an intercepted call between

co-conspirators, Agent Quinn would answer questions respecting

what he heard. As calls were played, Agent Quinn noted whom he

believed was talking and then described his understanding of the

discussion's context. In doing so, he defined his understanding

of terms such as "the shop," "a ball," "half a rope," "brown," and

"tuck or swallow" -- all common nomenclature in this and other

drug conspiracies.

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 The defendants fastidiously preserved their objections

to this testimony and moved for a mistrial. The district court

overruled their objections and denied the motion.

2. Discussion

We review the district court's rulings for abuse of

discretion. United States v. Vázquez-Rivera, 665 F.3d 351, 357

(1st Cir. 2011) (evidentiary rulings); United States v. Freeman,

208 F.3d 332, 339 (1st Cir. 2000) (denial of a motion for a

mistrial).

Both Rose and Frye argue that Agent Quinn's testimony

essentially "link[ed] together the testimony provided by law

enforcement and other non-cooperating witnesses and two

cooperating witnesses." In the defendants' view, Agent Quinn

"placed an imprimatur of veracity" on the other witnesses'

statements. Compounding all of this, they say, was that his

testimony "was presented early during trial to describe the

government's theory of the case."

We have consistently admonished against the use of an

"overview witness" by the government. Such a witness is typically

"a government agent who testifies as one of the prosecution's first

witnesses and, as the term implies, provides an overview or roadmap

of the prosecution's case to come." United States v. Etienne, 772

F.3d 907, 913 (1st Cir. 2014); see, e.g., United States v. Meises,

645 F.3d 5, 13-18 (1st Cir. 2011) United States v. Flores-de-

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Jesús, 569 F.3d 8, 20-26 (1st Cir. 2009); United States v. Casas,

356 F.3d 104, 117-21 (1st Cir. 2004). An overview witness is

generally problematic as he or she may influence the jury's

determination of facts or credibility assessments not yet in

evidence; he or she may also provide testimony differing from what

is to come; and the jury may place greater weight on the witness's

testimony since it "has the imprimatur of the government."

Etienne, 772 F.3d at 913 (internal citation omitted).

Overview testimony customarily contains "conclusory

statements that are not based on the witness' personal knowledge,

and which are unreliable because they often consist of inadmissible

hearsay evidence," rather than testimony that is "squarely based

on [a witness'] personal knowledge." United States v. Díaz-Arias,

717 F.3d 1, 13 (1st Cir. 2013). Where an officer testifies

exclusively about his or her role in an investigation and speaks

only to information about which he or she has first-hand knowledge,

the testimony is generally (barring a different evidentiary issue)

permissible. See id. (noting that such testimony is admissible

since it is not the type of broad, overarching discussion about

"the results of a criminal investigation, usually including

aspects" the agent did not participate in) (internal citation

omitted); see also United States v. Rosado-Pérez, 605 F.3d 48, 55

(1st Cir. 2010).

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 We do not find Agent Quinn's testimony (which, it should

be noted, occurred on the third of seven days of trial, and thus

was not the first testimony that the jury heard) to be overview

testimony, let alone improper overview testimony. Agent Quinn

testified exclusively from his personal knowledge, and he based

his statements on his familiarity with the investigation and his

exposure to the voices on the calls. Indeed, he first testified

that he had heard 90% of the calls as they came in and, as a

result, became intimately familiar with the voices and terms that

were used. While his testimony may have canvassed the entire

breadth of the conspiracy, he limited his discussion to his

specific role in the investigation and his first-hand

understanding of the events. That Agent Quinn was actually

involved throughout the entire investigation, and thus was able to

provide such detail about it, is simply not a reason to re-

characterize his statements as inappropriate overview testimony.

See United States v. Laureano-Pérez, -- F.3d --, 2015 WL 4577763

at *15 (1st Cir. July 30, 2015) ("Appropriate testimony does not

become improper overview testimony just because one law

enforcement official was present throughout the entire

investigation and is then called to walk the jury through the

investigation from beginning to end."). Nor, we note, did he vouch

for other witness' credibility, discuss evidence not yet in the

record, or provide testimony that would otherwise raise red flags

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in this context. See, e.g, Etienne, 772 F.3d at 913; Meises, 645

F.3d at 15.

Finding nothing to give us concern, we need go no further

to reject this challenge.3

C. Search of Rose's Home

We next turn to Rose's argument that officers

impermissibly searched the curtilage of his home, and that the

government then obtained a warrant for that property based solely

on the search.

1. Background

On November 16, 2010, Rose and Frye were overheard on a

wiretapped call discussing a plan to purchase two kilograms of

cocaine from "Papa Doc." Rose and Frye then met at a pharmacy

where Frye gave Rose $28,000 for the deal. Rose subsequently drove

home and arranged for Omay Ford (another co-conspirator) to pick

up the drugs. Later in the day, Ford drove to a gas station near

Rose's residence and waited for roughly twenty-five minutes until

3 The parties, particularly Rose, also appear to make a
slightly distinct though overlapping argument. They suggest that
Agent Quinn's testimony violated Federal Rules of Evidence 701 and
702 because he both lacked personal knowledge and because his
testimony did not aid the jury. As noted, however, Agent Quinn
testified exclusively from his personal knowledge. Moreover, his
testimony plainly assisted the jury in that it helped to place a
significant number of calls into context. The district court did
not abuse its discretion in admitting this evidence. See Díaz-
Arias, 717 F.3d at 11-15.

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an Acura SUV parked next to him. Ford approached the SUV, leaned

in, and appeared to retrieve something.

Government agents were surveilling Ford and followed him

to Rose's home. After Ford entered the residence, agents, led by

Detective Brian Cohoon, took up a perimeter around the house.

Detective Cohoon crouched near the front door and peered through

its glass. After observing for a period of time, Detective Cohoon

saw Rose carrying a stack of cash. Cohoon thus approached the

door, knocked, and announced, "Police, can you open the door?"

Rose responded by screaming, closing the blinds, grabbing several

items, and running upstairs with Ford. Believing that Rose and

Ford were about to destroy contraband, the officers entered the

home. They then arrested Rose and Ford before securing the scene.

The following day, Agent Quinn obtained and executed a

search warrant for the home. That search yielded roughly two

kilograms of cocaine, 440 grams of marijuana, and more than $75,000

in cash.

Rose moved to suppress the fruits of the search.

Although the district court perfunctorily stated that the officers

entered the property in "bad faith," it nonetheless denied the

motion. It held that the agents' entry on November 16 was

justified by exigent circumstances, and that the warrant obtained

on the 17th was saved by the independent source doctrine.

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 2. Discussion

We review legal questions underpinning the denial of the

motion to suppress de novo and any factual findings for clear

error. United States v. Silva, 554 F.3d 13, 18 (1st Cir. 2009).

Rose highlights two alleged errors in the district

court's decision. First, he focuses on the night of November 16

and argues that the officer's presence on the curtilage of the

property constituted an impermissible search. He then contends

that the district court failed to consider the effect of this

illegal activity on the alleged exigent circumstances that

followed. Second, Rose argues that this impermissible search was

the primary impetus for the search warrant the following day and,

accordingly, tainted any physical evidence obtained from that

search.

As we explain, we are not able to definitively resolve

the legal merits of Rose's argument. Even assuming that Rose is

correct in his assertion of error, however, any error was

ultimately harmless. To reach that end point, we briefly examine

the two relevant exceptions to the exclusionary rule: the exigent

circumstances and independent source doctrines. We begin with the

former.

The exclusionary rule is inapplicable where "'the

exigencies of the situation' make the needs of law enforcement so

compelling that the warrantless search is objectively reasonable

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under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 394

(1978) (quoting McDonald v. United States, 335 U.S. 451, 456

(1948)). A recent case in which the Supreme Court applied this

doctrine was Kentucky v. King, 131 S. Ct. 1849 (2011). There,

officers approached a residence with the intent to knock on a door

and chat with the inhabitants. Id. at 1854. However, the officers

believed that they heard the defendants destroying evidence, and

thus entered the property. Id. The Court held that the exigent

circumstances doctrine applied since, inter alia, in approaching

the door and knocking, the officers did nothing more than any

ordinary citizen had a right to do. Id. at 1862.

Here, the district court relied on King when applying

the exigent circumstances doctrine. But the district court appears

not to have addressed the threshold issue of whether the officers

"violat[ed] the Fourth Amendment," id. at 1858, by conducting a

search around the curtilage of Rose's home and, if so, whether

that violation sparked the exigent circumstances. The outcome of

that threshold inquiry depends on "whether the officer's conduct

was . . . objectively reasonable," that is, "whether the officers

had an implied license to enter" the curtilage and then station

themselves around the house. Florida v. Jardines, 133 S. Ct. 1409,

1417 (2012). If not, and if "their behavior objectively reveal[ed]

a purpose to conduct a search, which is not what anyone would think

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he [or she] had license to do," id. at 1417, then their presence

on the property was impermissible.

This record leaves us unable to determine precisely what

the officers were doing when they entered the property on the

evening of November 16. The district court briefly noted that the

officers entered the property in "bad faith"; a conclusory

statement without any predicate factual findings, and one that is

not dispositive as to whether the officers' presence violated the

Constitution. See King, 131 S. Ct. at 1859. Other than that

single statement, the district court did not find any additional

facts that shed light on the length of time that the officers

surveilled before knocking on the door, or that described the

officers' intent, or that otherwise established the officers'

precise movements. Simply stated, we do not know whether the

officers observed Rose's incriminating actions because they were

waiting to approach the suspects until they had proof of

contraband, or whether the officers were just positioning

themselves around the property in anticipation of a knock and talk.

See Jardines, 133 S. Ct. at 1415 ("[The Fourth Amendment] would be

of little practical value if the State's agents could stand in a

home's porch or side garden and trawl for evidence with impunity;

the right to retreat would be significantly diminished if the

police could enter a man's property to observe his repose from

just outside the front window"); see also King, 131 S. Ct. at 1858

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("The exigent circumstances rule justifies a warrantless search

when the conduct of the police preceding the exigency is reasonable

in the same sense."); cf. Horton v. California, 496 U.S. 128, 136-

40 (1990).

Given that absence of factual findings on the issue of

lawful presence, we proceed under the assumption that the officers'

entry on November 16 was improper. As such, we next ask whether

the search warrant obtained the following day was thereby tainted.

As the district court noted, that claim hinges on whether the

warrant was obtained independently of any impermissible police

conduct and thus saved by the independent source doctrine. To

evaluate an independent source claim, we ask whether "the agents'

decision to seek the warrant was prompted by what they had seen

during the initial [illegal] entry." United States v. Dessesaure,

429 F.3d 359, 369 (1st Cir. 2005) (quoting Murray v. United States,

487 U.S. 533, 542 (1988). That subjective inquiry thus turns on

whether the particular officer would have still sought the warrant

absent the unlawfully-obtained information. "In making [that]

factual determination . . . the district court is not bound by

after-the-fact assurances of [the officer's] intent, but instead

must assess the totality of the attendant circumstances to

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ascertain whether those assurances appear implausible." Id.

internal quotation marks omitted).4

In this case, the district court concluded that the

independent source doctrine applied. It noted that "the evidence

Agent Quinn marshaled in support of the search warrant application

came from sources wholly unconnected with the entry and was known

to the agents well before the initial entry." While that

observation is true enough, it reveals little about Agent Quinn's

subjective intent. That is, there was no finding that Agent Quinn

would have sought the warrant irrespective of the November 16

search.

As we see it, the record (specifically Agent Quinn's

declarations in the wiretap applications that he would seek a

warrant for Rose's residence as soon as drugs were connected to

his house) "provide[s] [some] support for the Government's

position. Murray, 487 U.S. at 543. But, as the Supreme Court

reminded in Murray, "it is the function of the District Court

rather than the Court of Appeals to determine the facts." Id.

This is true even where a court of appeals could theoretically

4In addition to the subjective prong of the analysis, we
examine whether "information obtained during the entry was
presented to the Magistrate and affected his [or her] decision to
issue the warrant." Id. at 365 (quoting Murray, 487 U.S. at 542).
This aspect of the analysis is "wholly objective." Id. On this
factor, our review of the warrant application leaves little doubt
that the independent information was sufficient to support the
judge's decision to issue the warrant.

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cobble together varying aspects of the record to infer the

officer's subjective intent. See id. (concluding that while the

district court found that one could "perhaps infer from [the facts]

that the agents who made the entry already planned to obtain the

'critical evidence through a warrant-authorized search' it was not

strong enough for the court of appeals to find the fact on its

own); see also United States v. Wright, 493 F.App'x 265, 271-72

(3d Cir. 2012); cf. United States v. Cordero-Rosario, 786 F.3d 64,

78 (1st Cir. 2015). Thus, even if we were inclined to say that

the district court would likely have found an intent to seek the

warrant given the court's ultimate adoption of the independent

source doctrine, the absence of such a finding hinders our ability

to conclusively rule on this challenge.

As noted, however, remand is not necessarily required

even were we to credit the defendant's arguments. Instead, we

must ask whether the "government can prove beyond a reasonable

doubt that the [putative] error complained of did not contribute

to the verdict obtained." United States v. Green, 698 F.3d 48,

53-54 (1st Cir. 2012) (internal quotation marks and citation

omitted).

In this case, the government referred to the

potentially-tainted physical evidence in its opening and closing

arguments. But, such evidence played a minimal role in the larger

context of the government's case. We are therefore confident that

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the remaining evidence was so overwhelming that, even if this

evidence should have been excluded, its inclusion did not affect

the verdicts. A brief summary shows why.

The government presented compelling evidence reflecting

the length and breadth of the conspiracy, along with the specific

role that each defendant played. That evidence begins with the

detailed testimony of two eyewitnesses, co-conspirators Pina and

Graham.

Graham testified that he agreed to, and did, distribute

both cocaine and heroin with Rose and Frye. Indeed, Graham

discussed a number of occasions on which he delivered drugs

directly to both defendants, and to occasions when he saw both

individuals with large quantities of cocaine. He indicated that

he had known Frye for twelve years, transported cocaine on his

behalf, and was often paid in cocaine for his services. He also

discussed a specific instance in which he had transported cocaine

from Rhode Island to a condominium where Frye and Rose were waiting

for the delivery. Finally, he identified Ford as Rose's supplier.

For his part, Pina testified in significant detail about

times in which he had obtained drugs for Frye. He further

testified that he received an "eight-ball" of heroin from Rose and

Frye. Significantly, he discussed an instance when Rose and Frye

came to his house and obtained a kilo of cocaine, then pressed it,

blended it, cut it up, and bagged it for sale.

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 Crucially, the government's case did not rest on the

admittedly sufficient, but arguably always open to challenge,

testimony of cooperating witnesses. Rather, that testimony was

corroborated and repeatedly reinforced by the vivid portrait of

defendants painted in their recorded conversations and surveilled

actions, as well as the physical contraband unconnected with the

challenged search or its arguable fruits. This evidence easily

established four central events that formed the heart of the

government's case.

First, the government introduced evidence that on the

evening of September 19, 2010, Rose was in contact with his seller,

Omay Ford. Rose then sent Graham to pick up a kilogram of cocaine

from Ford. Graham subsequently did so and then delivered the drugs

to Rose. Rose, however, was displeased with the product. He thus

ordered Graham to return the bag because the product was "no good."

He also paid Graham for these services in cocaine that was, in

contrast to the cocaine obtained from Ford, described as "banging."

Second, the government established that on September 21,

2010, Frye and Pina attempted to mail a package of heroine to

Anthony Vaughn. Frye and Pina went to a pharmacy and purchased an

item in which to hide the drugs. Frye then arranged for an

associate to mail the package, but a postal inspector recovered

the package mid-transport. The inspector found nearly 10 grams of

heroin inside of the package.

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 The government also highlighted an event from later that

same month in which Frye and Pina were awaiting a delivery of

cocaine. Law enforcement had been surveilling the van making the

delivery. A state trooper pulled the van over for a driving

violation, searched the vehicle, and discovered nearly 200 grams

of heroin. The co-conspirators were later overheard during

wiretapped conversations discussing this event.5

The final, central event, previously discussed, occurred

just before the putatively illegal search on November 16. The

government established that before the officers even entered

Rose's property, Rose and Frye had agreed to purchase two kilograms

of cocaine for $28,000. The two then took multiple overt steps -

- most notably, transferring money from one individual to the other

-- to accomplish that goal.

On the whole, we are satisfied beyond a reasonable doubt

that a jury would have convicted these two defendants even if the

evidence recovered from the search of Rose's home was improperly

admitted. The challenged evidence was cumulative; there was

already sufficient testimony and physical evidence respecting both

5Even defendant's use of code words of the "trade" (itself
an inculpatory behavior) did not conceal the probative force of
their conversations. Thus, for example, in describing the truck
that was pulled over and what was found in the truck, Adalberto
Graciani said to Frye, "Ah, estimate about 40, 40,000 I think in
heroin, and -- I mean, $40,000 worth in the streets and she he --
they was sayin."

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the conspiracy itself and the vast quantity of drugs flowing

through it. Nor, given all of this other evidence, do we think

that the brief mention of the physical contraband during arguments

at trial affected the result.6 Thus, questions about the legality

of the officers' conduct in entering Rose's home on November 16,

2010, are not sufficient to disrupt the convictions.

D. Alleyne

This brings us to the defendants' sentences. Rose and

Frye argue that the district court, rather than the jury, made

certain drug-quantity findings, and that the court then imposed a

6 Early in its opening statement to the jury, the government
did appear to emphasize the physical evidence. But, the
prosecutor's reference to the items seized on November 16 quickly
transitioned into a discussion of the events and evidence that led
to the government's search that day. Indeed, of the nearly thirty
minute opening statement, the government spent roughly five
minutes discussing the events of the 16th. Only about one minute
of that time discussed the physical contraband.
The closing argument even more plainly manifests the minimal
role that the physical contraband played in the case. The
government began its closing argument by reminding the jury of the
evidence that it had heard. The prosecutor specifically referenced
the taped phone calls and the live testimony, while only obliquely
referring to "all of the exhibits." Following this, the government
discussed the events of November 16 and emphasized that Rose and
Frye's actions on that day were sufficient by themselves for the
jury to find the two guilty. In making that argument, the
government again focused on the phone calls and the events leading
up to the search; not the physical evidence. In total, the
government spent roughly one third of its thirty-three minute
closing argument on the events of November 16. Of that time, it
devoted about one minute to the physical contraband. Although the
government thereafter referred to the physical evidence (including
contraband independent of the events of November 16), it simply
did so sporadically and as icing on an already-baked cake.

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statutory mandated sentence based on those findings, in violation

of Alleyne v. United States, 133 S. Ct. 2151 (2013).

1. Background

At sentencing, the district court determined by a

preponderance of the evidence that Rose was responsible for at

least 9 grams of cocaine, 20 grams of heroin, and 1.77 kilograms

of marijuana. Those quantities subjected Rose to a mandatory

minimum sentence of 20 years, 21 U.S.C. §§ 841(b)(1)(A)&(B) & 846,

although neither the court nor the parties mentioned that mandatory

minimum at sentencing. In contrast to the 240-month statutory

minimum, calculations pursuant to the sentencing guidelines

resulted in a recommended 360-month to life incarcerative

sentence. The district court, finding that the guidelines range

was inflated, imposed a below-guidelines sentence of 300 months.

Likewise, the court concluded that Frye was responsible

for 14 kilograms of cocaine and 923.05 grams of heroin, which also

subjected him to a 20-year mandatory minimum. At Frye's sentencing

hearing, the district court noted in passing that this mandatory

minimum applied. Like Rose, Frye's guidelines range was 360 months

to life. The court, relying on the factors enumerated in 18 U.S.C.

§ 3553(a), varied below the guidelines range and also sentenced

Frye to 300 months in prison.

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 2. Discussion

Typically, we review de novo whether a sentence was

improper under Alleyne. See Etienne, 772 F.3d at 922. But

unpreserved claims of Alleyne error, such as those here, are

reviewed for plain error. United States v. Harakaly, 734 F.3d 88,

94 (1st Cir. 2013); see United States v. Ramos-González, 775 F.3d

483, 499 (1st Cir. 2015) (plain error requires a showing of an

error that "was clear or obvious, and that it both affected [the

defendant's] substantial rights and seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings.").7

The government states that "[t]he district court

violated Alleyne by concluding that Rose [and Frye were] subject

to a mandatory minimum based on judge-found drug quantities."

Despite that apparent concession, we question whether any Alleyne

error actually occurred. See Etienne, 772 F.3d at 922 ("Although

the parties agree an Alleyne error occurred, their stipulation on

this question of law is of no import."). In United States v.

7 Rose concedes that he did not preserve his Alleyne claim
and thus plain error review applies. Frye, by contrast, goes to
some length to show that he preserved the issue. Yet, in the
district court below, he objected only to "the quantities set forth
in the PSR and request[ed] an evidentiary hearing on the issue of
quantity." He did not argue that the jury, rather than the court,
was required to make the drug quantity determination beyond a
reasonable doubt. Accordingly, Frye has not preserved the precise
claim that he now asserts. See United States v. Samboy, 433 F.3d
154, 161 (1st Cir. 2005).

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Ramírez-Negrón, we noted that "failing to prove an individualized

drug quantity is an Alleyne error only in cases in which the

defendant has been convicted and sentenced under the aggravated

version of the statute -- that is, where an enhanced mandatory

minimum applies." 751 F.3d 42, 49 (1st Cir. 2014) (emphasis added)

(internal quotation marks and citation omitted). With respect to

one of the defendants in that case, we concluded that "[t]he record

provides no evidence that the district court made any findings to

trigger a . . . mandatory minimum; rather, it shows that the court

imposed a Guidelines sentence." Id. at 50. We found it relevant

that "neither the judge nor either party at sentencing even

mentioned that a mandatory minimum was under consideration . . . .

Instead, the sentence was based only on Guidelines consideration."

Id.

The record here -- other than a brief reference to the

mandatory minimum in Frye's case -- is quite similar. For both

defendants, the court exclusively based its sentence on the

guidelines, and thus seemed to avoid sentencing the defendants

under the aggravated statutory provisions. Indeed, when

discussing the drug-quantity findings, the court framed the

question as one that solely affected the guidelines inquiry. The

court stated that it would "use that [its findings] as [to] the

number of kilos to establish the base offense level." Utilizing

that base offense level, and the factors referenced in 18 U.S.C.

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§ 3553(a), the court then imposed sentences based purely on

guidelines considerations. While the court's single reference to

the mandatory minimum perhaps makes Frye's case a bit closer, we

are nonetheless inclined to say that Alleyne was not implicated

here. See United States v. Lanza-Vázquez, ___ F.3d ___, 2015 WL

5042806, at *14 (1st Cir. Aug. 27, 2015) ("Although the district

court in this case made a passing reference that the amount of

drugs 'is the minimum pursuant to the statutory minimum,' its

actual sentencing decision was based purely on Guidelines

considerations and the factors enumerated in 18 U.S.C. §

3553(a).").

Either way, neither party can establish the necessary

prejudice to sustain their claim. Following Alleyne, we have

repeatedly emphasized that no prejudice exists when "it can fairly

be said . . . that the assigned error did not contribute to the

result of which appellant complains," and "[i]n drug cases,

overwhelming evidence of the requisite drug types and quantities

generally serves as a proxy for determining whether the Alleyne

error contributed to the result." United States v. Morris, 784

F.3d 870, 874 (1st Cir. 2015) (internal quotation marks and

citations omitted); see also Ramírez-Negrón, 751 F.3d at 51 n.8.

In this case, the government established that both

defendants were individually responsible for conspiring to

distribute more than five kilograms of controlled substances (even

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excluding the drugs found at Rose's residence). Some of the

evidence to establish drug quantity presented at trial included:

Rose and Frye's agreement to purchase two kilograms of cocaine on

November 16 (irrespective of the legality of the seizure of those

drugs); Graham's testimony that he transported a kilogram of

cocaine for Frye "every three weeks, two a month, every month" for

a year; Pina and Graham's testimony that they observed both Rose

and Frye "pressing, cutting, and bagging" kilograms of cocaine for

distribution; Graham's testimony that he was paid in cocaine by

Rose and picked up approximately one kilogram of cocaine from Rose

"plenty" of times; Graham's testimony that Rose ordered him to

return a kilogram of cocaine because it was "no good"; Graham's

testimony that he met Ford on four to five occasions at Rose's

residence to transport cocaine; testimony relating to 200 grams of

heroin that Frye was expecting for delivery; and testimony from

another co-conspirator, Bonnie Bearse, that Rose stashed

significant quantities of cocaine at her house. Given this

overwhelming evidence, the defendants cannot establish plain error

justifying relief.8

8 Frye also argues that the district court impermissibly
utilized a prior offense (conspiring to provide contraband to a
federal inmate, 18 U.S.C. § 371) to move him into the grasp of the
guidelines' career offender provision. Although the statute
pertaining to his prior conviction was divisible, he argues that
the district court failed to engage in the appropriate analysis to
determine whether the prior offense was actually a drug crime.
See Descamps v. United States, 133 S. Ct. 2276, 2283 (2013);

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 III.

Finding no reason to disturb the convictions or

sentences, we affirm.

Shepard v. United States, 544 U.S. 13, 19 (2005). We need not
determine if an error occurred, since any mistake was harmless.
First, the career offender classification had no impact on Frye's
base offense level. Second, while the offense did move Frye's
criminal history from category V to category VI, that designation
ultimately had no impact on the guidelines recommendation, which
ultimately drove the district court's sentencing decision.
Indeed, given the severity of the offense, the guidelines still
recommended 360 months to life, irrespective of Frye's criminal
history. U.S.S.G. ch. 5, pt. 8.

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